Professional Documents
Culture Documents
A
LAW DICTIONARY
ADAPTED TO THE CONSTITUTION AND LAWS OF
THE UNITED STATES OF AMERICA
AND OF THE
SEVERAL STATES OF THE AMERICAN UNION
With References to the Civil and Other Systems of Foreign Law
by
John Bouvier
Ignoratis terminis ignoratur et ars. - Co. Litt. 2 a.
Je sais que chaque science et chaque art a ses termes
propres, inconnu au commun des hommes. - Fleury
SIXTH EDITION, REVISED, IMPROVED, AND GREATLY ENLARGED.
VOL. I.
---------------------------
PHILADELPHIA
CHILDS & PETERSON, 124 ARCH STREET
1856
Entered according to Act of Congress, in the year one thousand eight hundred
and thirty-nine, BY JOHN BOUVIER, In the Clerk's Office of the District
9Court for the Eastern District of Pennsylvania.
-----------------------------
Entered according to Act of Congress, in the year one thousand eight hundred
and forty-three, BY JOHN BOUVIER, In the Clerk's Office of the District
Court for the Eastern District of Pennsylvania.
-----------------------------
Entered according to Act of Congress, in the year one thousand eight hundred
and forty-eight, BY JOHN BOUVIER, In the Clerk's Office of the District
Court for the Eastern District of Pennsylvania.
-----------------------------
Entered according to Act of Congress, in the year one thousand eight hundred
and fifty-two, BY ELIZA BOUVIER and ROBERT E. PETERSON, Trustees, In the
Clerk's Office of the District Court for the Eastern District of
Pennsylvania.
Deacon & Peterson, Printers
66 South Third Street.
TO THE HONORABLE
JOSEPH STORY, L L.D.,
One of the Judges of the Supreme Court of the United States
THIS WORK is WITH HIS PERMISSION MOST RESPECTFULLY DEDICATED
AS A TOKEN OF
GREAT REGARD ENTERTAINED FOR HIS TALENTS, LEARNING, AND CHARACTER,
BY
THE AUTHOR.
ADVERTISEMENT
TO THE THIRD EDITION
Encouraged by the success of this work, the author has endeavored to
render this edition as perfect as it was possible for him to make it. He
has remoulded very many of the articles contained in the former editions,
and added upwards of twelve hundred new ones.
To render the work as useful as possible, he has added a very copious
index to the whole, which, at the same time that it will assist the
inquirer, will exhibit the great number of subjects treated in these
volumes.
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Bouvier Law Dictionary
As Kelham's Law Dictionary has been published in this city, and can be
had by those who desire to possess it, that work has not been added as an
appendix to this edition.
Philadelphia, November, 1848.
ADVERTISEMENT
TO THE FOURTH EDITION
Since the publication of the last edition of this work, its author,
sincerely devoted to the advancement of his profession, has given to the
world his Institutes of American Law, in 4 vols. Svo. Always endeavoring to
render his Dictionary as perfect as possible, he was constantly revising it;
and whenever he met with an article which he had omitted, he immediately
prepared it for a new edition. After the completion of his Institutes, in
September last, laboring to severely, he fell a victim to his zeal, and died
on the 18th of November, 1851, at the age of sixty-four.
In preparing this edition, not only has the matter left by its author
been made use of, but additional matter has been added, so that the present
will contain nearly one-third more than the last edition. Under one head,
that of Maxims, nearly thirteen hundred new articles have been added. The
book has been carefully examined, a great portion of it by two members of
the bar, in order that it might be purged, as far as possible, from all
errors of every description. The various changes in the constitutions of the
states made since the last edition, have been noticed, so far as was
compatible with this work; and every effort made to render it as perfect as
a work of the kind would permit, in order that it might still sustain the
reputation given to it by a Dublin barrister, "of being a work of a most
elaborate character, as compared with English works of a similar nature, and
one which should be in every library."
That it may still continue to receive the approbation of the Bench and
Bar of the United States, is the sincere desire of the widow and daughter of
its author.
PREFACE
To the difficulties which the author experienced on his admission to the
bar, the present publication is to be attributed. His endeavours to get
forward in his profession were constantly obstructed, and his efforts for a
long time frustrated, for want of that knowledge which his elder brethren of
the bar seemed to possess. To find among the reports and the various
treatises on the law the object of his inquiry, was a difficult task; he was
in a labyrinth without a guide: and much of the time which was spent in
finding his way out, might, with the friendly assistance of one who was
acquainted with the construction of the edifice, have been saved, and more
profitably employed. He applied to law dictionaries and digests within his
reach, in the hope of being directed to the source whence they derived their
learning, but be was too often disappointed; they seldom pointed out the
authorities where the object of his inquiry might be found. It is true such
works contain a great mass of information, but from the manner in which they
have been compiled, they sometimes embarrassed him more than if he had not
consulted them. They were written for another country, possessing laws
different from our own, and it became a question how far they were or were
not applicable here. Besides, most of the matter in the English law
dictionaries will be found to have been written while the feudal law was in
its full vigor, and not fitted to the present times, nor calculated for
present use, even in England. And there is a great portion which, though
useful to an [vii] English lawyer, is almost useless to the American
student. What, for example, have we to do with those laws of Great Britain
which relate to the person of their king, their nobility, their clergy,
their navy, their army; with their game laws; their local statutes, such as
regulate their banks, their canals, their exchequer, their marriages, their
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births, their burials, their beer and ale houses, and a variety of similar
subjects?
The most modern law dictionaries are compilations from the more
ancient, with some modifications and alterations and, in many instances,
they are servile copies, without the slightest alteration. In the mean time
the law has undergone a great change. Formerly the principal object of the
law seemed to be to regulate real property, in all its various artificial
modifications, while little or no attention was bestowed upon the rules
which govern personal property and rights. The mercantile law has since
arisen, like a bright pyramid, amid the gloom of the feudal law, and is now
far more important in practice, than that which refers to real estate. The
law of real property, too, has changed, particularly in this country.
The English law dictionaries would be very unsatisfactory guides, even
in pointing out where the laws relating to the acquisition and transfer of
real estate, or the laws of descent in the United States, are to be found.
And the student who seeks to find in the Dictionaries of Cowel, Manly,
Jacobs, Tomlins, Cunningham, Burn, Montefiore, Pott, Whishaw, Williams, the
Termes de Ley, or any similar compilation, any satisfactory account in
relation to international law, to trade and commerce, to maritime law, to
medical jurisprudence, or to natural law, will probably not be fully
gratified. He cannot, of course, expect to find in them anything in
relation to our government, our constitutions, or our political or civil
institutions.[viii]
It occurred to the author that a law dictionary, written entirely
anew, and calculated to remedy those defects, would be useful to the
profession. Probably overrating his strength, he resolved to undertake the
task, and if he should not fully succeed, he will have the consolation to
know, that his effort may induce some more gifted individual, and better
qualified by his learning, to undertake such a task, and to render the
American bar an important service. Upon an examination of the constitution
and laws of the United States, and of the several states of the American
Union, he perceived many technical expressions and much valuable information
which he would be able to incorporate in his work. Many of these laws,
although local in their nature, will be found useful to every lawyer,
particularly those engaged in mercantile practice. As instances of such laws
the reader is referred to the articles Acknowledgment, Descent, Divorce,
Letters of Administration, and Limitatio. It is within the plan of this
work to explain such technical expressions as relate to the legislative,
executive, or judicial departments of the government; the political and the
civil rights and duties of the citizens; the rights and duties of persons,
particularly such as are peculiar to our institutions, as, the rights of
descent and administration; of the mode of acquiring and transferring
property; to the criminal law, and its administration. It has also been an
object with the author to embody in his work such decisions of the courts as
appeared to him to be important, either because they differed from former
judgments, or because they related to some point which was before either
obscure or unsettled. He does not profess to have examined or even referred
to all the American cases; it is a part of the plan, however, to refer to
authorities, generally, which will lead the student to nearly all the cases.
The author was induced to believe, that an occasional comparison of the
civil, canon, and other systems of foreign law, with our own,[ix] would be
useful to the profession, and illustrate many articles which, without such
aid, would not appear very clear; and also to introduce many terms from
foreign laws, which may supply a deficiency in ours. The articles
Condonation, Extradition, and Novation, are of this sort. He was induced to
adopt this course because the civil law has been considered, perhaps not
without justice, the best system of written reason, and as all laws are or
ought to be founded in reason, it seemed peculiarly proper to have recourse
to this fountain of wisdom: but another motive influenced this decision; one
of the states of the Union derives most of its civil regulations from the
civil law; and there seemed a peculiar propriety, therefore, in introducing
it into an American law dictionary. He also had the example of a Story, a
Kent, Mr. Angell, and others, who have ornamented their works from the same
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source. And he here takes the opportunity to acknowledge the benefits which
he has derived from the learned labors of these gentlemen, and of those of
Judge Sergeant, Judge Swift, Judge Gould, Mr. Rawle, and other writers on
American law and jurisprudence.
In the execution of his plan, the author has, in the first place,
defined and explained the various words and phrases, by giving their most
enlarged meaning, and then all the shades of signification of which they are
susceptible; secondly, he has divided the subject in the manner which to him
appeared the most natural, and laid down such principles and rules as belong
to it; in these cases he has generally been careful to give an illustration,
by citing a case whenever the subject seemed to require it, and referring to
others supporting the same point; thirdly, whenever the article admitted of
it, he has compared it with the laws of other countries within his reach,
and pointed out their concord or disagreement; and, fourthly, he has
referred to the authorities, the abridgments, digests, and the [x] ancient
and modem treatises, where the subject is to be found, in order to
facilitate the researches of the student. He desires not to be understood
as professing to cite cases always exactly in point; on the contrary, in
many instances the authorities will probably be found to be but distantly
connected with the subject under examination, but still connected with it,
and they have been added in order to lead the student to matter of which he
may possibly be in pursuit.
To those who are aware of the difficulties of the task, the author
deems it unnecessary to make any apology for the imperfections which may be
found in the work. His object has been to be useful; if that has been
accomplished in any degree, he will be amply rewarded for his labor; and he
relies upon the generous liberality of the members of the profession to
overlook the errors which may have been committed in his endeavors to serve
them.
PHILADELPHIA, September, 1839.
A
LAW DICTIONARY
A, the first letter of the English and most other alphabets, is frequently
used as an abbreviation, (q.v.) and also in the marks of schedules or
papers, as schedule A, B, C, &c. Among the Romans this letter was used in
criminal trials. The judges were furnished with small tables covered with
wax, and each one inscribed on it the initial letter of his vote; A, when he
voted to absolve the party on trial; C, when he was for condemnation; and N
L, (non liquet) when the matter did not appear clearly, and be desired a new
argument.
A MENSA ET THORO, from bed and board. A divorce a mensa et thoro, is rather
a separation of the parties by act of law, than a dissolution of the
marriage. It may be granted for the causes of extreme cruelty or desertion
of the wife by the husband. 2 Eccl. Rep. 208. This kind of divorce does not
affect the legitimacy of children, nor authorize a second marriage. V. A
vinculo matrimonii; Cruelty Divorce.
A PRENDRE, French, to take, to seize, in contracts, as profits a prendre.
Ham. N. P. 184; or a right to take something out of the soil. 5 Ad. & Ell.
764; 1 N. & P. 172 it differs from a right of way, which is simply an
easement or interest which confers no interest in the land. 5 B. & C. 221.
A QUO, A Latin phrases which signifies from which; example, in the
computation of time, the day a quo is not to be counted, but the day ad quem
is always included. 13 Toull. n.52 ; 2 Duv. n.22. A court a quo, the
court from which an appeal has been taken; a judge a quo is a judge of a
court below. 6 Mart.Lo.R. 520; 1 Har.Cond.L.R. 501. See Ad quem.
A RENDRE, French, to render, to yield, contracts. Profits a rendre; under
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this term are comprehended rents and services. Ham N.P. 192.
A VINCULO MATRIMONII, from the bond of marriage. A marriage may be
dissolved a vinculo, in many states, as in Pennsylvania, on the ground of
canonical disabilities before marriage, as that one of the parties was
legally married to a person who was then living; impotence(q.v.), and the
like adultery cruelty and malicious desertion for two years or more. In New
York a sentence of imprisonment for life is also a ground for a divorce a
vinculo. When the marriage is dissolved a vinculo, the parties may marry
again but when the cause is adultery, the guilty party cannot marry his or
her paramour.
AB INITIO, from the beginning.
2. When a man enters upon lands or into the house of another by
authority of law, and afterwards abuses that authority, he becomes a
trespasser ab initio. Bac. Ab. Trespass, B.; 8 Coke, 146 2 Bl. Rep. 1218
Clayt. 44. And if an officer neglect to remove goods attached within a
reasonable time and continue in possession, his entry becomes a trespass ab
initio. 2 Bl. Rep. 1218. See also as to other cases, 2 Stra. 717 1 H. Bl. 13
11 East, 395 2 Camp. 115, 2 Johns. 191; 10 Johns. 253; ibid. 369.
3. But in case of an authority in fact, to enter, an abuse of such
authority will not, in general, subject the party to an action of trespass,
Lane, 90 ; Bae. Ab. Trespass, B ; 2 T. It. 166. See generally 1 Chit. Pl.
146. 169. 180.
AB INTESTAT. An heir, ab intestat, is one on whom the law casts the
inheritance or estate of a person who dies intestate.
ABANDONMENT, malicious. The act of a husband or wife, who leaves his or her
consort willfully, and with an intention of causing perpetual separation.
2. Such abandonment, when it has continued the length of time required
by the local statutes, is sufficient cause for a divorce. Vide 1 Hoff. R.
47; Divorce.
ABATEMENT, chancery practice, is a suspension of all proceedings in a suit,
from the want of proper parties capable of proceeding therein. It differs
from an abatement at law in this, that in the latter the action is in
general entirely dead, and cannot be revived, 3 Bl. Com. 168 but in the
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former, the right to proceed is merely suspended, and may be revived by a
bill of revivor. Mitf. Eq. Pl. by Jeremy, 57; Story, Eq. Pl. Sec. 354.
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G. George; as, 13 G. 1, c. 29.
G. & J. Glyn & Jameson's Reports.
G. & J. Gill & Johnson's Reports.
G. M. Dudl. Repo. G. M. Dudley's Reports.
Gale & Dav. Gale & Davidson's Reports.
Gale's Stat. Gale's Statutes of Illinois.
Gall. or Gall. Rep. Gallison's Reports.
Garde on Ev. Garde's Practical Treatise on the General Principles and
Elementary Rules of the Law of Evidence.
Geo. George; as, 13 Geo. 1, c. 29.
Geo. Dec. Georgia Decisions.
Geo. Lib. George on the Offence of Libel.
Gib. on D. & N. Gibbons on the Law of Dilapidations and Nuisances.
Gibs. Codex. Gibson's Codex Juris Civilis.
Gilb. R. Gilbert's Reports.
Gilb. Ev. Gilbert's Evidence.
Gilb. U. & T. Gilbert on Uses and Trusts.
Gilb. Ten. Gilbert on Tenures.
Gilb. on Rents. Gilbert on Rents.
Gilb. on Rep. Gilbert on Replevin.
Gilb. Ex. Gilbert on Executions.
Gilb. Exch. Gilbert's Exchequer.
Gilb. For. Rom. Gilbert's Forum Romanum.
Gilb. K. B. Gilbert's King's Bench.
Gilb. Rem. Gilbert on REmainders.
Gilb. on Dev. Gilbert on Devises.
Gilb. Lex. praet. Gilbert's Lex Praetoria.
Gill & John. Gill & Johnson's Reports.
Gill's R. Gill's Reports.
Gilm. R. Gilmer's Reports.
Gilp. R. Gilpin's Circuit Court Reports.
Gl. Glossa, the Gloss.
Glanv. Glanville's Treatise of the Laws and Customs of England.
Glassf. Ev. Glassford on Evidence.
Glov. Mun. Corp. Glover on Municipal Corporations, or Glov. on Corp. Glover
on the Law of Municipal Corporations.
Glyn. & Jam. Glyn & Jameson's Reports of Cases in Bankruptcy.
Godb. Godbolt's Reports.
Godolph. Ad. Jr. Godolphin's View of the Admiralty Jurisdiction.
Godolph. Rep. Can. Godolphin's Repertorium Canonicum.
Godolph. Godolphin's Orphan's Legacy.
Gods. on Pat. Godson's Treatise on the Law of Patents.
Goldesh. Goldeshorought's Reports.
Golds. Goldsborough's Reports.
Gord. on Dec. Gordon on the Law of Decedents in Pennsylvania.
Gould on Pl. Gould on the Principles of Pleading in Civil Actions.
Gow on Part. Gow on Partnership.
Grah. Pr. Graham's Practice.
Grah. N.T. Graham on New Trials.
Grand. Cout. Grand Coutumier de Normandie, (q.v.)
Grady on Fixt. Grady on the law of Fixtures.
Grant on New. Tr. Grant on New Trials.
Grant's Ch. Pr. Grant's Chancery Practice.
Gratt. R. Grattan's Virginia Reports.
Green's B.L. Green's Bankrupt Laws.
Green's R. Green's Reports.
Greenl. on Ev. Greenleaf's Treatise on the Law of Evidence.
Greenl. Ov. Cas. Greenleaf's Overruled Cases.
Greenl. R. Greenleaf's Reports.
Greenw on Courts. Greenwood on Courts.
Gres. Eq. Ev. Gresley's Equity Evidence.
Grif. Reg. Griffith's Law Register.
Grimk. on Ex. Grimke on the Duty of Executors and Administrators.
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Bouvier Law Dictionary
Grisw. Rep. Griswold's Reports.
Grot. Grotius de Jure Belli.
Gude's Pr. Gude's Practice on the Crown side of King's Bench, &c.
Gwill. Gwillim's Tithe Cases.
H. Henry; as, 18 H. 7, c. 15.
H. Hilary Term.
H.A. Hoc Anno
H.V. commonly written in small letters h.v. hoc verbo.
H. of L. House of Lords.
H. of R. House of Representatives.
H. & B. Hudson & Brooke's Reports.
H. & G. Harris & Gill's Reports.
H. & J. Harris & Johnson's Reports.
H. Bl. Henry Blackstone's Reports.
H. H. C. L. Hale's History of the Common Law.
H. & M. Henning and Munford's Reports.
H. & McH. or Harr. & McHen. Harris & McHenry's Reports.
Hab. fa. seis. Habere facias seisinam.
H. P. C. Hales' Pleas of the Crown.
H.t. usually put in small letters, h.t. hoc titulo.
Hab. Corp. Habeas Corpus.
Hab. fa. pos. Habere facias possessionem.
Hagg. Ad. R. Haggard's Admiralty Reports.
Hagg. Ecc. R. Haggard's Ecclesiastical Reports.
Hagg. C. R. Haggard's REports in the Consistory Court of London.
Hale, P.C. Hale's Pleas of the Crown.
Hale's Sum. Hale's Summary of Pleas.
Hale's Jur. J. L. Hale's Jurisdiction of the House of Lords.
Hale's Hist. C.L. Hale's History of the Common Law.
Halif. Civ. Law. Halifax's Analysis of the Civil Law.
Hall's R. Hall's Reports of Cases decided in the Superior Court of the city
of New York.
Halk. dig. Halkerton's digest of the Law of Scotland relating to Marriage.
Hall's Adm. Pr. Hall's Admiralty Practice.
Halst. R. Halstead's Reports.
Hamm. N. P. Hammond's Nisi Prius.
Hamm. R. Hammond's (Ohio) Reports.
Hamm. on Part. Hammond on Parties to Actions.
Hamm. Pl. Hammond's Analysis of the Principles of Pleading.
Hamm. on F.I. Hammond on Fire Insurance.
Han. Hansard's Entries.
Hand's ch. Pr. Hand's Chancery Practice.
Hand on Fines. Hand on Fines and Recoveries.
Hand's Cr. Pr. hand's Crown Practice.
Hand on Pat. Hand on Patents.
Hans. Parl. Deb. Hansard's Parliamentary Debates.
Hard. Hardress' Reports.
Hardin's R. Hardin's Reports.
Hare R. Hare's Reports.
Hare & Wall. Sel. Dec. Hare & Wallace's Select Decisions of American Cases,
with Notes.
Hare on Disc. Hare on the Discovery of Evidence by Bill and Answer in
Equity.
Harg. Coll. Hargrave's Juridical Arguments and collection.
Harg. St. Tr. Hargrave's State Trials.
Harg. Exer. Hargrave's Exercitations.
Harg. Law Tr. Hargrave's Law Tracts.
Harp. L. R. Harper's Law Reports.
Harp. Eq. R. Harper's Equity Reports.
Harr. Ch. Harrison's Chancery Practice.
Harr. Cond. Lo. R. Harrison's condensed Report of Cases in Superior Court of
the Territory of Orleans, and in the Supreme Court of Louisiana.
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Harr. Dig. Harrison's Digest.
Harr. Ent. Harris' Entries.
Harr. (Mich.) R. Harrington's Reports of Cases in the Supreme Court of
Michigan.
Harr. & Gill. Harris & Gill's Reports.
Harr. & John. Harris & Johnson's Reports.
Harr. & M'H. Harris & M'Henry's Reports.
Harringt. R. Harrington's Reports.
Hasl. Med. Jur. Haslam's Medical Jurisprudence.
Hawk. P.C. Hawkins' Pleas of the Crown.
Hawk's R. Hawk's Reports.
Hay on Est. An Elementary View of the Common Law of uses, Devises, and
Trusts, with reference to the Creation and Conveyance of Estates, by
William Hayes.
Hay. on Lim. Hayes on Limitations.
Hay. Exch. R. Hayes' Exchequer Reports.
Hays on R. P. Hays on Real Property.
Heath's Max. Heath's Maxim's.
Hein. Elem. Juris. civ. Heineccii, Elementa juris Civilis, secundum ordinem
Institutionum.
Hein. Elem. Juris. Nat. Heineccii, Elementa juris Naturae et gentium.
Hen on For. Law. Henry on Foreign Law.
Hen. J. P. Henning's Virginia Justice of the Peace.
Hen. & Munf. Henning & Munford's Reports.
Herne's Ch. Uses. Herne's law of Charitable Uses.
Herne's Plead. Herne's Pleader.
Het. Hetley's Reports.
Heyw. on El. Heywood on Elections.
Heyw. (N.C.) R. Heywood's North Carolina Reports.
Heyw. (Tenn.) R. Heywood's Tennessee Reports.
High. Highmore.
High on Bail. Highmore on Bail.
High. on Lun. Highmore on Lunacy.
High. on Mortm. Highmore on ortmain.
Hill. Ab. Hilliard's Abridgment of the Law of Real Property.
Hill's R. Hill's Reports.
Hill's Ch. R. Hill's Chancery Reports.
Hill on Trust. A Practical Treatise on the Law relating to Trustees, &c.
Hind's Pr. Hind's Practice.
Hob. Hobart's Reports.
Hodg. R. Hodge's Reports.
Hodges on Railw. Hodges on the Law of Railways.
Hoffm. Outl. Hoffman's Outlines of Legal Studies.
Hoffm. Leg. St. Hoffman's Legal Studies.
Hoffm. Ch. Pr. Hoffman's Chancery Practice.
Hoffm. Mas. Ch. Hoffman's master in Chancery.
Hoffm. R. Hoffman's Reports.
Hog. R. Hogan's Reports.
Hog. St. Tr. Hogan's State Trials.
Holt on Lib. Holt on the Law of Libels.
Holt on Nav. Holt on Navigation.
Holt. R. Holt's Reports.
Holt on Sh. Holt on the Law of Shipping.
Hopk. R. Hopkins' Chancery Reports.
Hopk. Adm. Dec. Hopkinson's Admiralty Decisions.
Houard's Ang. Sax. Laws. Houard's Anglo Saxon laws and Ancient Laws of the
French.
Houard's dict. Houard's Dictionary of the Customs of normandy.
Hough C. M. Hough on Courts Martial.
Hov. Fr. Hovenden on Frauds.
Hov. Supp. Hovenden's Supplement to Vesey Junior's Reports.
How. St. Tr. Howell's State Trials.
Howe's Pr. Howe's Practice in Civil Actions and Proceedings at Law in
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Massachusetts.
How. Pr. R. Howard's Practice Reports.
Hub. on Suc. Hubback on Successions.
Huds. & Bro. Hudson & Brooke's Reports.
Hugh. Ab. Hughes' Abridgment.
Hugh. Entr. Hughes' Entries.
Hugh. on Wills. Hughes on Wills.
Hugh. R. Hughes' Reports.
Hugh. Or. Writs. Hughes' Comments upon Original Writs.
Hugh. Ins. Hughes on Insurance.
Hugh. on Wills. Hughes' Practical Directions for Taking Instructions for
Drawing Wills.
Hull. on Costs. Hullock on the Law of Costs.
Hult. on Conv. Hulton on Convictions.
Humph. R. Humphrey's Reports.
Hume's com. Hume's Commentaries on the Criminal Law of Scotland.
Hut. Hutton's Reports.
S. , section.
S. B. Upper Bench.
S.& B. Smith & Batty's Reports.
S. C. Same Case.
S. C. C. Select Cases in Chancery.
S. C. Rep. South Carolina Reports.
S.& L. Schoales & Lefroy's Reports.
S.& M. Shaw & Maclean's Reports.
S.& M. Ch. R. Smedes & Marshall's Reports of Cases decided by the Superior
Court of Chancery of Mississippi.
S.& M. Err. & App. Smedes & Marshall's Reports of Cases in the High Court of
Errors and Appeals of Mississippi.
S. P. Same Point.
S.& R. Sergeant & Rawle's Reports.
S.& S. Sausse & Scully's Reports.
S.& S. Simon & Stuart's Chancery Reports.
Sa.& Scul. Sausse & Scully's Reports.
Sandl. St. Pap. Sandler's State Papers.
Salk. Salkeld's Reports.
Sandf. Rep. Reports of Cases argued and determined in the Court of Chancery
of the State of New York, before the Hon. Lewis H. Sandford, Assistant
vice Chancellor of the First Circuit.
Sand. U.& T. Sanders on Uses and Trusts.
Sanf. on Ent. Sanford on Entails.
Sant. de Assoc. Santerna, de Asecurationibus.
Saund. Saunders' Reports.
Saund. Pl. & ev. Saunders' Treatise on the Law of Pleading and Evidence.
Sav. Saville's Reports.
Sav. Dr. Rom. Savigny, Droit Romain.
Sav. Dr. Rom. M. A. Savigny, Droit Romain au Moyen Age.
Sav. Hist. Rom. Law. Savigny's History of the Roman Law during the Middle
Ages. Translated from the German of Carl Von Savigny, by E. Cathcart.
Say. Costs. Sayer's Law of Costs.
Say. Sayer's Reports.
SC. Senatus consultum.
Scad. de Cam. Scaddia de Cambiis.
Scam. Rep. Scammon's Reports of Cases argued and determined in the Supreme
Court of Illinois.
Scan. Mag. Scandalum Magnatum.
Sch.& Lef. Schoales & Lefroy's Reports.
Scheiff. Pr. Scheiffer's Practice.
Schul. Aq. R. Schultes on Aquatic Rights.
Sci. Fa. Scire Facias.
Sci. fa. ad. dis. deb. Scire facias ad disprobandum debitum, (q.v.)
Scil. Scilicet, i.e. scire licet, that is to say.
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Sco. N.R. Scott's new Reports.
Scott's R. Scott's Reports.
Scriv. Copyh. Scriven's Copyholds.
Seat. F. Ch. Seaton's Forms in Chancery.
Sec. Section.
Sec. Leg. Secundum legem; according to law.
Sec. Reg. Secundum regulam; according to rule.
Sedgw. on Dam. Sedgwick on Damages.
Sel. Ca. Chan. Select Cases in Chancery. Vide S. C. C.
Seld. mar. Cla. Selden's Mare Clausum.
Self. Tr. Selfridge's Trial.
Sell. Pr. Sellon's Practice in K. B. and C. P.
Selw. N. P. Selwyn's Nisi Prius.
Selw. R. Selwyn's Reports. These Reports are usually cited M.& S. Maule &
Selwyn's Reports.
Sem. or Semb. Semble, it seems.
Sen. Senate.
Seq. Sequentia.
Serg. on Att. Sergeant on the Law of Attachment.
Serg. Const. Law. Sergeant on constitutional Law.
Serg. on Land L. Sergeant on the Land Laws of Pennsylvania.
Serg.& Loub. Sergeant & Louber's edition of the English Common Law Reports;
more usually cited Eng. Com. Law Rep.
Serg.& Rawle. or S.R. Reports of Cases adjudged in the Supreme Court of
Pennsylvania. By Thomas Sergeant and William Rawle, Jun.
Sess. Ca. Sessions Cases in K. B., chiefly touching Settlements.
Set. on Dec. Seton on Decrees.
Shaw & Macl. Shaw & Maclean's Reports.
Shelf. Lun. Shelford on Lunacy.
Shelf. on Mort. Shelford on the Law of Mortmain.
Shelf. on Railw. Shelford on Railways.
Shelf. on R. Pr. Shelford on Real Property.
Shep. To. Sheppard's Touchstone.
Shepl. R. Shepley's Reports.
Sher. Sheriff.
Show. P. C. Shower's Parliamentary Cases.
Show. R. Shower's Reports in the Court of King's Bench.
Shub. Jur. Lit. Shuback de Jure Littoris.
Sid. Siderfin's Reports.
Sim. Simon's Chancery Reports. In Con. C.R.
Sim.& Stu. Simon & Stuart's Chancery Reports.
Skene, Ver. Sign. Skene de Verborum Significatione; an explanation of terms,
difficult words, &c.
Skin. Skinner's Reports.
Skirr. Und. Sher. Skirrow's Complete Practical Under Sheriff.
Slade's Rep. Slade's Reports. More usually cited Vermont Reports.
Smed & Marsh. Ch. R. Smedes & Marshall's Reports of Cases decided by the
High Court of Errors and Appeals of Mississippi.
Smith & Batty. Smith & Batty's Reports.
Smith's Ch. Pr. Smith's Chancery Practice.
Smith's For. Med. Smith's Forensic Medicine.
Smith's Hints. Smith's Hints for the Examination of Medical Witnesses.
Smith on M. L. Smith on Mercantile Law.
Sm. on Pat. Smith on the Law of Patents.
Smith's R. Smith's Reports in K. B., together with Cases in the Court of
Chancery.
Sol. Solutio, the answer to an objection.
South. Car. R. South Carolina Reports.
South. R. Southard's Reports.
Sp. of Laws. Spirit of Laws, by Montesquieu.
Spelm. Feuds. Spelman on Feuds.
Spel. Gl. Spelman's Glossary.
Spence on Eq. Jur. of Ch. Spence on the Equitable Jurisdiction of Chancery.
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Bouvier Law Dictionary
Spenc. R. Spencer's Reports.
Speers' Eq. Cas. Equity Cases argued and determined in the Court of Appeals
of South Carolina. By R. H. Speers.
Speers' Rep. Speers' Reports.
Ss. usually put in small letters, ss. Scilicet, that is to say.
St. or Stat. Statute.
St. Armand. Hist. Ess. St. Armand's Historical Essay on the Legislative
Power of England.
Stant. R. Stanton's Reports.
Stath. Ab. Statham's Abridgment.
St. Cas. Stillingfleet's Cases.
St. Tr. State Trials.
Stair's Inst. Stair's Inst. Stair's Institutions of the Law of Scotland.
Stallm. on Elec. & Sat. Stallman on Election and Satisfaction.
Stark. Starkie's Ev. Starkie on the Law of Evidence.
Stark. Cr. Pl. Starkie's Criminal Pleadings.
Stark. R. Starkie's Reports.
Stark. on Sl. Starkie on Slander and Libel.
Stat. Statutes.
Stat. Wes. Statute of Westminster.
Staunf or Staunf. P. C. Staunford's Pleas of the Crown.
Stearn. on R. A. Stearne on Real Actions.
Steph. Comm. Stephen's New Commentaries on the Law of England.
Steph. Cr. Law. Stephen on Criminal Law.
Steph. Pl. Stephen on Pleading.
Steph. Proc. Stephen on Procurations.
Steph. on Slav. Stephens on Slavery.
Stev. on Av. Stevens on Average.
Stev.& B. on Av. Stevens & Beneke on Average.
Stew. Adm. Rep. Stewart's Reports of Cases argued and determined in the
Court of Vice Admiralty at Halifax.
Stew. R. Stewart's Reports.
Stew.& Port's. Stewart & Porter's Reports.
Story on Bail. Story's Commentaries on the Law of Bailments.
Story on Const. Story on the Constitution of the United States.
Story on Eq. Story's Commentaries on Equity Jurisprudence.
Story's L. U. S. Story's edition of the Laws of the United States, in 3
vols. The 4th and 5th volumes are a continuation of the same work by
George Sharswood, Esq.
Story on Partn. Story on Partnership.
Story on Pl. Story on Pleading.
Story, R. Story's Reports.
Str. Strange's Reports.
Stracc. de Mer. Straccha de Mercatura, Navibus Assecurationibus.
Strah. Dom. Straham's Translation of Domat's Civil Law.
Strob. R. Strobhart's Reports.
Stroud's Dig. Stroud's Digest of the Laws of Pennsylvania.
Stuart's (L.C.) R. Reports of Cases in the Court of King's bench in the
Provincial Court of Appeals of Lower Canada, and Appeals before the Lords
of the Privy Council. By George O'Kill Stuart, Esq.
Sty. Style's Reports.
Sugd. Lett. Sugden's Letters.
Sugd., Sugd. Pow. Sugden on Powers.
Sugd. Vend. Sugden on Vendors.
Sull. Lect. Sullivan's Lectures on the Feudal Law, and the Constitution and
Laws of England.
Sull. on Land Tit. Sullivan's History of Land Titles in Massachusetts.
Sum. Summa, the Summary of a law.
Sumn. R. Sumner's Circuit Court Reports.
Supers. Supersedeas.
Supp. Supplement.
Supp. to Ves. Jr. Supplement to Vesey Junior's Reports.
Swan on Eccl. Cts. Swan on the Jurisdiction of Ecclesiastical Courts.
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Bouvier Law Dictionary
Swanst. Swanston's Reports.
Sweet on Wills. Sweet's Popular Treatise on Wills.
Swift's Dig. Swift's Digest of the Laws of Connecticut.
Swift's Ev. Swift's Evidence.
Swift's Sys. Swift's System of the Laws of Connecticut.
Swinb. Swinburn on the Law of Wills and testaments. This work is generally
cited by reference to the part, book, chapter, &c.
Swinb. on Desc. Swinburne on the Law of Descents.
Swinb. on Mar. Swinburne on Marriage.
Swinb. on Spo. Swinburne on Spousals.
Sw. Swinburne on Wills.
Syst. Plead. System of Pleading.
T. Title.
T.& G. Tyrwhitt & Granger's Reports.
T.& P. Turner & PHillips' Reports.
T. Jo. Sir Thomas Jones' Reports.
T. L. Termes de la Ley, or Terms of the Law.
T. R. Term Reports. Ridgeway's Reports are sometimes cited Irish Tr.
T. R. Teste Rege.
T.& R. Turner & Russell's Chancery Reports.
T.& R. Turner & Russell's Reports.
T. R. E. or T. E. R. Tempore Regis Edwardi. This abbreviation is frequently
used in Domesday Book, and in the more ancient Law writers. See Tyrrel's
Hist. Eng., introd. viii. p. 49. See also Co. Inst. 86, a,where in a
quotation from Domesday Book, this abbreviation is interpreted Terra Regis
Edwardi; but in Cowell's Dict. verb. Reveland, it is said to be wrong.
T. Raym. Sir Thomas Raymond's Reports.
T. U. P. Charlt. T. U. P. Charlton's Reports.
Tait on Ev. Tait on Evidence.
Taml. on Ev. Tamlyn on Evidence, principally with reference to the Practice
of the Court of Chancery, and in the Master's office.
Taml. R. Tamlyn's Reports of Cases decided in Chancery.
Taml. T. Y. Tamlyn on Terms for Years.
Tapia. Jur. Mer. Tratade de Jurisprudentia Mercantil.
Taunt. Taunto's Reports. Tayl. on Ev. Taylor on Evidence.
Tayl Cir. L. Taylor's Civil Law.
Tayl. Law glo. Taylor's Law Glossary.
Tayl. L.&T. Taylor's Treatise on the American Law of Landlord and
Tenant.
Tech. Dict. Crabb's Technological Dictionary.
Thach. Crim. Cas. Thacher's Criminal Cases.
Th. Br. Thesaurus brevium.
Th. Dig. Theloall's Digest.
Theo. of Pres. Pro. Theory of Presumptive Proof.
Theo. Pres. Pro. Theory of Presumptive Proof, or an Inquiry into the Nature
of Circumstantial Evidence.
Tho. Co. Litt. Coke upon Littleton' newly arranged on the plan of Sir
Matthew Hale's Analysis. By J. H. Thomas, Esq.
Thomp. on Bills. Thompson on Bills.
Tho. U. J. Thomas on Universal Jurisprudence.
Tidd's Pr. Tidd's Practice.
tit. Title.
Toll. Ex. Toller's Executors.
Toml. L. D. Tomlin's Law dictionary.
Toth. Tothill's reports.
Touchs. Sheppard's Touchstone.
Toull. Le Droit civil Francais suivant Pordre du Code; ouvrage dans lequel
on a tache de reunir la eorie a la practique. Par M. C. B. M. Toullier.
This work is sometimes cited Toull. Dr. Civ. Fr. liv. 3, t. 2, c. 1, n. 6;
at other times, 3 Toull. n. 86, which latter signifies vol. 3 of
Toullier's work, No. 86.
Tr. Eq. Treatise of Equity; the same as Fonblanque on Equity.
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Bouvier Law Dictionary
Traill, Med. Jur. Outlines of a Course of Lectures on Medical Jurisprudence.
By Thomas Stewart Traill, M.D.
Treb. Jur. de la Med. Jurisprudence de la Medecine, de la Chirurgie, et de
la Pharmacie. Par Adolphe Trebuchet.
Trem. Tremaine's Pleas of the Crown.
Tri. of 7 Bish. Trial of the Seven Bishops.
Tri. per Pais. Trials per Pais.
Trin. Trinity Term.
Tuck. Bl. Com. Blackstone's Commentaries, edited by Judge Tucker.
Turn. R. Turner's Reports of Cases determined in Chancery.
Turn.& Russ. Turner & Russell's Chancery Reports.
Tuck. Com. Tucker's Commentaries.
Turn.& Phil Turner & PHillips' Reports.
Tyl. R. Tyler's Reports.
Tyrw. Tyrwhitt's Exchequer Reports.
Tyrw.& Gra. Tyrwhitt & Granger's Reports.
Tyt. Mil. Law. Tytler's Essay on Military Law and the Practice of Military
Courts Martial.
U.S. United States of America.
U.S. Dig. United States Digest. See Metc.& Perk. Dig.
Ult. Ultimo, ultima, last, usually applied to last title, paragraph or law.
Umfrev. Off of Cor. Umfreville's Office of Coroner.
Under Sher. Under Sheriff, containing the office and duty of High Sheriff,
Under Sheriffs and Bailiffs.
Ux. et. Et uxor, et uxorem, and wife.
X. The decretals of Gregory the ninth are denoted by the letter X, thus, X.
Y. B. Year Books, (q.v.)
Y.& C. Younge & Collyer's Exchequer Reports.
Y.& C. N. C. Younge & Collyer's New Cases.
Y.& J. Younge & Jervis' Exchequer Reports.
Yeates, R. Yeates' Reports.
Yearb. Year Book.
Yelv. Yelverton's Reports.
Yerg. R. Yerger's Reports.
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Bouvier Law Dictionary
Yo.& Col. Younge & Collyer's Exchequer Reports.
Yo.& Col. N. C. Younge and Collyer's New Cases.
Yo. Rep. Younge's Reports.
Yo.& Jer. Younge & Jervis' Reports.
Zouch's Adm. Zouch's Jurisdiction of the Admiralty of England, asserted.
ABBREVIATORS, eccl. law. Officers whose duty it is to assist in drawing up
the Pope's briefs, and reducing petitions into proper form, to be converted
into Papal Bulls. Vide Bulls.
ABBROACHMENT, obsolete. The forestalling of a market or fair.
ABIGEI, civil law. Stealers of cattle, who were punished with more severity
than other thieves. Dig. 47, 14; 4 Bl. Com. 239.
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Bouvier Law Dictionary
ABSOLUTE. Without any condition or encumbrance, as an "absolute bond,"
simplex obligatio, in distinction from a conditional bond; an absolute
estate, one that is free from all manner of condition or incumbrance. A
rule is said to be absolute, when, on the hearing, it is confirmed. As to
the effect of an absolute conveyance, see 1 Pow. Mortg. 125; in relation to
absolute rights, 1 Chitty, Pl. 364; 1 Chitty, Pr. 32.
ABSOLUTION. A definite sentence whereby a man accused of any crime is
acquitted.
ABSQUE HOC, pleading. When the pleadings were in Latin these words were
employed in a traverse. Without this, that, (q.v.) are now used for the
same purpose.
ABSQUE IMPETITIONE VASTI. Without impeachment of waste. (q.v.) Without any
right to prevent waste.
ABSQUE TALI CAUSA. This phrase is used in a traverse de injuria, by which
the plaintiff affirms that without the cause in his plea alleged he did
commit the said trespasses, &c. Gould on Pl. c. 7, part 2, Sec. 9.
ABSTENTION, French law. This is the tacit renunciation by an heir of a
succession Merl. Rep. h.t.
ABSTRACT OF TITLE. A brief account of all the deeds upon which the title to
an estate rests. See Brief of Title.
ABUSE. Every thing which is contrary to good order established by usage.
Merl. Rep. h.t. Among the civilians, abuse has another signification; which
is the destruction of the substance of a thing in using it. For example,
the borrower of wine or grain, abuses the article lent by using it, because
he cannot enjoy it without consuming it. Leg ; El. Dr. Rom. Sec. 414. 416.
ABUTTALS. The buttings and boundings of land, showing on what other lands,
rivers, highways, or other places it does abut. More properly, it is said,
the sides of land, are adjoining and the ends abutting to the thing
contiguous. Vide Boundaries, and Cro. Jac. 184.
AC ETIAM, Eng. law. In order to give jurisdiction to a court, a cause of
action over which the court has jurisdiction is alleged, and also,, (ac
etiam) another cause of action over which, without being joined with the
first, the court would have no jurisdiction; for example, to the usual
complaint of breaking the plaintiff's close, over which the court has
jurisdiction, a clause is added containing the real cause of action. This
juridical contrivance grew out of the Statute 13 Charles H. Stat. 2, c. 2.
The clause was added by Lord North, Ch. J. of the C. P. to the clausum
fregit writs of that court upon which writs of capias might issue. He
balanced awhile whether he should not use the words nec non instead of ac
etiam. The matter is fully explained in Burgess on Insolvency, 149. 155.
156. 157.
ACCEDAS AD CURIAM, Eng. law. That you go to court. An original writ,
issuing out of chancery, now of coarse, returnable in K. B. or C. P. for the
removal of a replevin sued by plaint in court of any lord, other than the
county before the sheriff See F. N. B. 18; Dyer, 169.
ACCEDAS AD VICECOMITEM, Eng. law. The name of a writ directed to the
coroner, commanding him to deliver a writ to the sheriff, who having a pone
delivered to him, suppresses it.
ACCEPTANCE, contracts. An agreement to receive something which has been
offered.
2. To complete the contract, the acceptance must be absolute and past
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recall, 10 Pick. 826; 1 Pick. 278; and communicated to the party making the
offer at the time and place appointed. 4. Wheat. R. 225; 6 Wend. 103.
3. In many cases acceptance of a thing waives the right which the party
receiving before had; as, for example, the acceptance of rent after notice
to quit, in general waives. the notice. See Co. Litt. 211, b; Id. 215, a.;
and Notice to quit.
4. The acceptance may be express, as when it is openly declared by the
party to be bound by it; or implied, as where the party acts as if he had
accepted. The offer, and acceptance must be in some medium understood by,
both parties; it may be language, symbolical, oral or written. For example,
persons deaf and dumb may contract by symbolical or written language. At
auction sales, the contract, generally symbolical; a nod, a wink, or some
other sign by one party, imports that he makes an offer, and knocking down a
hammer by the other, that he agrees to it. 3 D. & E. 148. This subject is
further considered under the articles Assent and Offer, (q v.)
5. Acceptance of a bill of exchange the act by which the drawee or
other person evinces his assent or intention to comply with and be bound by,
the request contained in a bill of exchange to pay the same; or in other
words, it is an engagement to pay the bill when due. 4 East, 72. It will be
proper to consider, 1, by whom the acceptance ought to be made; 2, the time
when it is to be made; 3, the form of the acceptance; 4, its extent or
effect.
6.-1. The acceptance must be made by the drawee himself, or by one
authorized by him. On the presentment of a bill, the holder has a right to
insist upon such an acceptance by the drawee as will subject him at all
events to the payment of the bill, according to its tenor; consequently such
drawee must have capacity to contract, and to bind himself to pay the amount
of the bill, or it, may be treated as dishonored. Marius, 22. See 2 Ad. &
EH. N. S. 16, 17.
7.-2. As to the time when, a bill ought to be accepted, it may be
before the bill is drawn; in this case it must be in writing; 3 Mass. 1; or
it may be after it is drawn; when the bill is presented, the drawee must
accept the bill within twenty-four hours after presentment, or it should be
treated as dishonored. Chit. Bills, 212. 217. On the refusal to accept, even
within the twenty-four hours, it should be protested. Chit. Bills, 217. The
acceptance may be made after the bill is drawn, and before it becomes due or
after the time appointed for payment 1 H. Bl. 313; 2 Green, R. 339 ; and
even after refusal to accept so as to bind the acceptor.
8. The acceptance may also be made supra protest, which is the
acceptance of the bill, after protest for non-acceptance by the drawee, for
the honor of the drawer, or a particular endorser. When a bill has been
accepted supra protest for the honor of one party to the bill, it may be
accepted supra protest, by another individual, for the honor of another.
Beawes, tit. Bills of Exchange, pl. 52; 5 Campb. R. 447.
9.-3. As to the form of the acceptance, it is clearly established it
may be in writing on the bill itself, or on another paper, 4 East, 91; or it
may be verbal, 4 East, 67; 10 John. 207; 3 Mass. 1; or it may be expressed
or implied.
10. An express acceptance is an agreement in direct and express terms to
pay a bill of exchange, either by the party on whom it is drawn, or by some
other person, for the honor of some of the parties. It is Usually in the
words accepted or accepts, but other express words showing an engagement to
pay the bill will be equally binding.
11. An implied acceptance is an agreement to pay a bill, not by direct
and express terms, but by any acts of the party from which an express
agreement may be fairly inferred. For example, if the drawee writes "seen,"
"presented," or any, other thing upon it, (as the day on which it becomes
due,) this, unless explained by other circumstances, will constitute an
acceptance.
12.-4. An acceptance in regard to its extent and effect, may be either
absolute, conditional, or partial.
13. An absolute acceptance is a positive engagement to pay the bill
according to its tenor, and is usually made by writing on the bill
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"accepted," and subscribing the drawee's name; or by merely writing his name
either at the bottom or across the bill. Comb. 401; Vin. Ab. Bills of
Exchange, L 4; Bayl. 77; Chit. Bills, 226 to 228. But in order to bind
another than the drawee, it is requisite his name should appear. Bayl. 78.
14. A conditional acceptance is one which will subject the drawee or
acceptor to the payment of the money on a contingency, Bayl. 83, 4, 5; Chit.
Bills, 234; Holt's C. N. P. 182; 5 Taunt, 344; 1 Marsh. 186. The holder is
not bound to receive such an acceptance, but if he do receive it he must
observe its terms. 4 M.& S. 466; 2 W. C. C. R. 485; 1 Campb. 425.
15. A partial acceptance varies from the tenor of the bill, as where it
is made to pay part of the sum for which the bill is drawn, 1 Stra. 214; 2
Wash. C. C. R. 485; or to pay at a different time, Molloy, b. 2, c. 10, s.
20; or place, 4. M.& S. 462.
ACCEPTILATION, contracts. In the civil law, is a release made by a creditor
to his debtor of his debt, without receiving any consideration. Ayl. Pand.
tit. 26, p. 570. It is a species of donation, but not subject to the forms
of the latter, and is valid, unless in fraud of creditors. Merlin, Repert.
de Jurisp. h.t. Acceptilation may be defined verborum conceptio qua
creditor debitori, quod debet, acceptum fert; or, a certain arrangement of
words by which on the question of the debtor, the creditor, wishing to
dissolve the obligation, answers that he admits as received, what in fact,
he has not received. The acceptilation is an imaginary payment. Dig. 46, 4,
1 and 19; Dig. 2, 14, 27, 9; Inst. 3, 30, 1.
ACCEPTOR, contracts. The person who agrees to pay a bill of exchange drawn
upon him. There cannot be two separate acceptors of a bill of exchange, e.
g. an acceptance by the drawee, and another for the honor of some party to
the bill. Jackson v. Hudson, 2 Campb. N. P. C. 447.
2. The acceptor of a bill is the principal debtor, and the drawer the
surety. He is bound, though he accepted without consideration, and for the
sole accommodation of the drawer. By his acceptance he admits the drawer's
handwriting, for, before acceptance it was incumbent upon him to inquire
into the genuineness of the drawer's handwriting. 3 Burr. 1354; 1 Bla. Rep.
390, S. C.; 4 Dall. 234; 1 Binn. 27, S. C. When once made, the obligation of
the acceptor is irrevocable. As to what amounts to an acceptance, see ante,
Acceptance; Chitty on Bills, 242, et. seq.; 3 Kent, Com. 55, 6; Pothier,
Traite du Contrat de Change, premiere part. n. 44.
3. The liability of the acceptor cannot in general be released or
discharged, otherwise than by payment, or by express release or waiver, or
by the act of limitations. Dougl. R. 247. What amounts to a waiver and
discharge of the acceptor's liability, must depend on the circumstances of
each particular case. Dougl. 236, 248; Bayl. on Bills, 90; Chitty on Bills,
249.
ACCEPTOR SUPRA PROTEST, in contracts, is a third person, who, after protest
for non-acceptance by the drawee, accepts the bill for the honor of the
drawer, or of the particular endorser.
2. By this acceptance he subjects himself to the same obligations as if
the bill had been directed to him. An acceptor supra protest has his remedy
against the person for whose honor he accepted, and against all persons who
stand prior to that person. If he takes up the bill for the honor of the
endorser, he stands in the light of an endorsee paying full value for the
bill, and has the same remedies to which an endorsee would be entitled
against all prior parties, and he can, of course, sue the drawer and
endorser., 1 Ld. Raym. 574; 1 Esp. N. P. Rep. 112; Bayly on Bills, 209; 3
Kent. Com. 57; Chitty on Bills, 312. The acceptor supra protest is required
to give the same notice, in order to charge a party, which is necessary to
be given by other holders. 8 Pick. 1. 79; 1 Pet. R. 262. Such acceptor is
not liable, unless demand of payment is made on the drawee, and notice of
his refusal given. 3 Wend. 491.
ACCESS, persons. Approach, or the means or power of approaching. Sometimes
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Bouvier Law Dictionary
by access is understood sexual intercourse; at other times the opportunity
of communicating together so that sexual intercourse may have taken place,
is also called access. 1 Turn. & R. 141.
2. In this sense a man who can readily be in company with his wife, is
said to have access to her; and in that case, her issue are presumed to be
his issue. But this presumption may be rebutted by positive evidence that no
sexual intercourse took place. lb.
3. Parents are not allowed to prove non-access, for the purpose of
bastardizing the issue of the wife; nor will their declarations be received
after their deaths, to prove the want of access, with a like intent. 1 P. A.
Bro. R. App. xlviii.; Rep. tem. Hard. 79; Bull. N. P. 113; Cowp. R. 592; 8
East, R. 203; 11 East, R. 133. 2 Munf. R. 242; 3 Munf. R. 599; 7 N. S. 553;
4 Hayw R. 221, 3 Hawks, R 623 1 Ashm. R. 269; 6 Binn. R. 283; 3 Paige's R.
129; 7 N. S. 548. See Shelf. on Mar. & Div. 711; and Paternity.
ACCESSARY, criminal law. He who is not the chief actor in the perpetration
of the offence, nor present at its performance, but is some way concerned
therein, either before or after the fact committed.
2. An accessary before the fact, is one who being absent at the time
of, the crime committed, yet procures, counsels, or commands another to
commit it. 1 Hale, P. C. 615. It is, proper to observe that when the act is
committed through the agency of a person who has no legal discretion nor a
will, as in the case of a child or an insane person, the incitor, though
absent when the crime was committed, will be considered, not an accessary,
for none can be accessary to the acts of a madman, but a principal in the
first degree. Fost. 340; 1 P. C. 118.
3. An accessary after the fact, is one who knowing a felony to have
been committed, receives, relieves, comforts, or assists the felon. 4 Bl.
Com. 37.
4. No one who is a principal (q.v.) can be an accessary.
5. In certain crimes, there can be no accessaries; all who are
concerned are principals, whether they were present or absent at the time of
their commission. These are treason, and all offences below the degree of
felony. 1 Russ. 21, et seq.; 4 Bl. Com. 35 to 40; 1 Hale, P. C. 615; 1 Vin.
Abr. 113; Hawk. P. C. b. 2, c. 29, s. 16; such is the English Law. But
whether it is law in the United States appears not to be determined as
regards the cases of persons assisting traitors. Serg. Const. Law, 382; 4
Cranch, R. 472, 501; United States v. Fries, Parnphl. 199.
6. It is evident there can be no accessary when there is no principal;
if a principal in a transaction be not liable under our laws, no one can be
charged as a more accessary to him. 1 W.& M. 221.
7. By the rules of the common law, accessaries cannot be tried without
their consent, before the principals. Foster, 360. The evils resulting from
this rule, are stated at length in the 8th vol. of Todd's Spencer, pp. 329,
330.
ACCESSION, property. The ownership of a thing, whether it be real or
personal, movable or immovable, carries with it the right to all that the
thing produces, and to all that becomes united to it, either naturally or
artificially; this is called the right of accession.
2.-1. The doctrine of property arising from accession, is grounded on
the right of occupancy.
3.-2. The original owner of any thing which receives an accession by
natural or artificial means, as by the growth of vegetables, the pregnancy
of animals; Louis. Code, art. 491; the embroidering of cloth, or the
conversion of wood or metal into vessels or utensils, is entitled to his
right of possession to the property of it, under such its state of
improvement; 5 H. 7, 15; 12 H. 8, 10; Bro. Ab. Propertie, 23; Moor, 20;
Poph. 88. But the owner must be able to prove the identity of the original
materials; for if wine, oil, or bread, be made out of another man's grapes,
olives, or wheat, they belong to the new operator, who is bound to make
satisfaction to the former proprietor for the materials which he has so
converted. 2 Bl. Com. 404; 5 Johns. Rep. 348; Betts v. Lee, 6 Johns. Rep.
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169; Curtiss v. Groat, 10 Johns. 288; Babcock v. Gill, 9 Johns. Rep. 363;
Chandler v. Edson, 5 H. 7, 15; 12 H. 8, 10; Fits. Abr. Bar. 144; Bro. Abr.
Property, 23; Doddridge Eng. Lawyer, 125, 126, 132, 134. See Adjunction;
Confusion of Goods. See Generally, Louis. Code, tit. 2, c. 2 and 3.
ACCESSION, international law, is the absolute or conditional acceptance by
one or several states, of a treaty already concluded between one or several
states, of a treaty already concluded between other sovereignties. Merl. Rep.
mot Accession.
ACCESSORY, property. Everything which is joined to another thing, as an
ornament, or to render it more perfect, is an accessory, and belongs to the
principal thing. For example, the halter of a horse, the frame of a
picture, the keys of a house, and the like; but a bequest of a house would
not carry the furniture in it, as accessory to it. Domat, Lois Civ. Part. 2,
liv. 4, tit. 2, s. 4, n. 1. Accesiorium non ducit, sed sequitur principale.
Co. Litt. 152, a. Co. Litt. 121, b. note (6). Vide Accession; Adjunction;
Appendant; Appurtenances; Appurtenant; Incident.
ACCESSORY CONTRACT. One made for assuring the performance of a prior
contract, either by the same parties, or by others; such as suretyship,
mortgages, and pledges.
2. It is a general rule, that payment of the debt due, or the
performance of a thing required to be performed by the first or principal
contract, is a full discharge of such accessory obligation. Poth. Ob. part.
1, c. 1, s. 1, art. 2, n. 14. Id. n. 182, 186. See 8 Mass. 551; 15 Mass.
233; 17 Mass. 419; 4 Pick. 11; 8 Pick. 522.
3. An accessory agreement to guaranty an original contract, which is
void, has no binding effect. 6 Humph. 261.
ACCIDENT. The happening of an event without the concurrence of the will of
the person by whose agency it was caused or the happening of an event
without any human agency; the burning of a house in consequence of a fire
being made for the ordinary purpose of cooking or warming the house, which
is an accident of the first kind; the burning of the same house by lightning
would have been an accident of the second kind. 1 Fonb. Eq. 374, 5, note.
2. It frequently happens that a lessee covenants to repair, in which
case he is bound to do so, although the premises be burned down without his
fault. 1 Hill. Ab. c. 15, s. 76. But if a penalty be annexed to the
covenant, inevitable accident will excuse the former, though not the latter.
1 Dyer, 33, a. Neither the landlord nor the tenant is bound to rebuild a
house burned down, unless it has been so expressly agreed. Amb. 619; 1 T. R.
708; 4 Paige, R. 355; 6 Mass. R. 67; 4 M'Cord, R. 431; 3 Kent, Com. 373.
3. In New Jersey, by statute, no action lies against any person on the
ground that a fire began in a house or room occupied by him, if accidental.
But this does not affect any covenant. 1 N. J. Rev. C. 216.
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ACREDULITARE, obsolete. To purge one's self of an offence by oath. It
frequently happens that when a person has been arrested for a contempt, he
comes into court and purges himself, on oath, of having intended any
contempt. Blount, Leges. Inac. c. 36.
ACT, civil law, contracts. A writing which states in a legal form that a
thing has been said, done, or agreed. In Latin, Instrumentum. Merl. Rep.
ACT. In the legal sense, this word may be used to signify the result of a
public deliberation, the decision of a prince, of a legislative body, of a
council, court of justice, or a magistrate. Also, a decree, edict, law,
judgment, resolve, award, determination. Also, an instrument in writing to
verify facts, as act of assembly, act of congress, act of parliament, act
and deed. See Webster's Dict. Acts are civil or criminal, lawful or
unlawful, public or private.
2. Public acts, usually denominated authentic, are those which have a
public authority, and which have been made before public officers, are
authorized by a public seal, have been made public by the authority of a
magistrate, or which have been extracted and been properly authenticated
from public records.
3. Acts under private signature are those which have been made by
private individuals, under their hands. An act of this kind does not acquire
the force of an authentic act, by being registered in the office of a
notary. 5 N. S. 693; 8 N. S. 568 ; 3 L. R. 419 ; 8 N. S. 396 ; 11 M. R. 243;
unless it has been properly acknowledged before the officer, by the parties
to it. 5 N. S. 196.
4. Private acts are those made by private persons, as registers in
relation to their receipts and expenditures, schedules, acquittances, and
the like. Nov. 73, c. 2 ; Code, lib. 7, tit. 32, 1. 6; lib. 4, t. 21; Dig.
lib. 22, tit.. 4; Civ. Code of Louis. art. 2231 to 2254; Toull. Dr. Civ.
Francais, tom. 8, p. 94.
ACT, evidence. The act of one of several conspirators, performed in
pursuance of the common design, is evidence against all of them. An overt
act of treason must be proved by two witnesses. See Overt.
2. The terra. acts, includes written correspondence, and other papers
relative to the design of the parties, but whether it includes unpublished
writings upon abstract questions, though of a kindred nature, has been
doubted, Foster's Rep. 198 ; 2 Stark. R. 116, 141.
3. In cases of partnership it is a rule that the act or declaration of
either partner, in furtherance of the common object of the association, is
the act of all. 1 Pet. R. 371 5 B. & Ald. 267.
4. And the acts. of an agent, in pursuance of his authority, will be
binding on his principal. Greenl. Ev. Sec. 113.
ACT, legislation. A statute or law made by a legislative body; as an act of
congress is a law by the congress of the United States; an act of assembly
is a law made by a legislative assembly. If an act of assembly expire or be
repealed while a proceeding under it is in fieri or pending, the proceeding
becomes abortive; as a prosecution for an offence, 7 Wheat. 552; or a
proceeding under insolvent laws. 1 Bl. R. 451; Burr. 1456 ; 6 Cranch, 208 ;
9 Serg. & Rawle, 283.
2. Acts are general or special; public or private. A general or public
act is a universal rule which binds the whole community; of which the courts
are bound to take notice ex officio.
3. Explanatory acts should not be enlarged by equity Blood's case,
Comb. 410; although such acts may be allowed to have a retrospective
operation. Dupin, Notions de Droit, 145. 9.
4. Private or special acts are rather exceptions, than rules; being
those which operate only upon particular persons and private concerns; of
these the courts are not bound to take notice, unless they are pleaded. Com.
85, 6; 1 Bouv. Inst. n. 105.
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ACT IN PAIS. An act performed out of court, and not a matter of record.
Pais, in law French, signifies country. A deed or an assurance transacted
between two or more private persons in the country is matter in pais. 2 Bl.
Com. 294.
ACT OF BANKRUPTCY. An act which subjects a person to be proceeded against as
a bankrupt. The acts of bankruptcy enumerated in the late act of congress,
of 19th Aug. 1841, s. 1, are the following: 1. Departure from the state,
district, or territory of which a person, subject to the operation of the
bankrupt laws, is an inhabitant, with intent to defraud his creditors. See,
as to what will be considered a departure, 1 Campb. R. 279; Dea. & Chit.
4511 Rose, R. 387 9 Moore, R. 217 2 V. & B. 177; 5 T. R. 512; 1 C. & P. 77;
2 Bini,. R. 99; 2 Taunt. 176; Holt, R. 175.
2. Concealment to avoid being arrested. 1 M. & S. 676 ; 2 Rose, R. 137;
15 Ves. 4476 Taunt. R. 540; 14 Ves. 86 Taunt. 176;1 Rose, R. 362; 5 T. R.
512; 1 Esp. 334.
3. Willingly or fraudulently procuring himself to be arrested, or his
goods and chattels, lands, or tenements to be attached, distrained,
sequestered, or taken in execution.
4. Removal of his goods, chattels and effects, or concealment of them
to prevent their being levied upon, or taken in execution, or by other
process.
5. Making any fraudulent conveyance, assignment, sale, gift, or other
transfer of his lands, tenements, goods, or chattels, credits, or evidences
of debt. 15 Wend. R. 588; 5 Cowen, R. 67; 1 Burr. 467, 471, 481; 4 C. & P.
315; 18 Wend. R. 375; 19 Wend. R. 414; 1 Dougl. 295; 7 East, 137 16 Ves.
149; 17 Ves. 193; 1 Smith R. 33; Rose, R. 213.
ACT OF GOD, in contracts. This phrase denotes those accidents which arise
from physical causes, and which cannot be prevented.
2. Where the law casts a duty on a party, the performance shall be
excused, if it be rendered impossible by the act of God; but where the
party, by his own contract, engages to do an act, it is deemed to be his own
fault and folly that he did not thereby provide against contingencies, and
exempt himself from responsibilities in certain events and in such case,
(that is, in the instance of an absolute general contract the performance is
not excused by an inevitable accident, or other contingency, although not
foreseen by, nor within the control of the party. Chitty on Contr. 272, 8;
Aleyn, 27, cited by Lawrence; J. in 8 T. R. 267; Com. Dig. Action upon the
Case upon Assumpsit, G; 6 T. R. 650 ; 8 T. R. 259; 3 M. & S. 267 ; 7 Mass.
325; 13 Mass. 94; Co. Litt. 206; Com. Dig. Condition, D 1, L 13; 2 Bl. Com.
340; 1 T. R. 33; Jones on Bailm 104, 5 ; 1 Bouv. Inst. n. 1024.
3. Special bail are discharged when the defendant dies, Tidd, 243 ;
actus Dei nemini facit injuriam being a maxim of law, applicable in such
case; but if the defendant die after the return of the case and before it is
filed, the bail are fixed. 6 T. R. 284; 6 Binn. 332, 338. It is, however, no
ground for an exonerator, that the defendant has become deranged since the
suit was brought, and is confined in a hospital. 2 Wash. C. C. R. 464, 6 T.
It. 133 Bos. & Pull. 362 Tidd, 184. Vide 8 Mass. Rep. 264; 3 Yeates, 37; 2
Dall. 317; 16 Mass. Rep. 218; Stra. 128; 1 Leigh's N, P. 508; 11 Pick. R.
41; 2 Verm. R. 92; 2 Watt's Rep. 443. See generally, Fortuitous Event;
Perils of the Sea.
ACT OF GRACE, Scotch law. The name by which the statute which provides for
the aliment of prisoners confined for civil debts, is usually known.
2. This statute provides that where a prisoner for debt declares upon
oath, before the magistrate of the jurisdiction, that he has not wherewith
to maintain himself, the magistrate may set him it liberty, if the creditor,
in consequence of whose diligence he was imprisoned, does not aliment him
within ten days after intimation for that purpose. 1695, c. 32; Ersk. Pr. L.
Scot. 4, 3, 14. This is somewhat similar to a provision in the insolvent act
of Pennsylvania.
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ACT 0F LAW. An event which occurs in consequence of some principle of law.
If, for example, land out of which a rent charge has been granted, be
recovered by an elder title, and thereby the rent charge becomes avoided;
yet the grantee, shall have a writ of annuity, because the rent charge is
made void by due course or act of law, it, being a actus legis nemini est
damnosus. 2 Inst. 287.
ACT OF MAN. Every man of sound mind and discretion is bound by his own acts,
and the law does not permit him to do any thing against it; and all acts are
construed most strongly against him who does them. Plowd. 140.
2. A man is not only bound by his own acts, but by those of others who
act or are presumed to act by his authority, and is responsible civilly in
all such cases; and, in some cases, even when there is but a presumption of
authority, he may be made responsible criminally; for example, a bookseller
may be indicted for publishing a libel which has been sold in his store, by
his regular salesmen, although he may possibly have had no knowledge of it.
ACTIO BONAE FIDEI, civil law. An action of good faith.
ACTIO COMMODATI CONTRARIA. The name of an action in the civil law, by the
borrower against the lender, to compel the execution of the contract. Poth.
Pret Usage, n. 75.
ACTIO COMMODATI DIRECTA. In the civil law, is the name of an action, by a
lender against a borrower, the principal object of which is to obtain
restitution of the thing lent. Poth. Pret. 5, Usage, n. 65, 68.
ACTIO CONDICTIO INDEBITI. The name of an action in the civil law, by which
the plaintiff recovers the amount of a sum of money or other thing be paid
by mistake. Poth. Promutuum, n. 140. See Assumpsit.
ACTIO EXCONDUCTIO, civil law. The name of an action which the bailor of a
thing for hire may bring against the bailee, in order to compel him to
redeliver the thing hired. Poth. du Contr. de Louage, n. 59.
ACTIO DEPOSITI CONTRARIA. The name, of an action in the civil law which the
depositary has against the depositor to compel him to fulfill his engagement
towards him. Poth. Du Depot, la. 69.
ACTIO DEPOSITI DIRECTA. the civil law, this is the name of an action which
is brought by the depositor against the depositary, in order to get back
the, thing deposited. Poth. Du Depot, n. 60.
ACTIO JUDICATI, civil law. Was an action instituted, after four months had
elapsed after the rendition of judgment, in which the judge issued his
warrant to seize, first, the movables, which were sold within eight days
afterwards; and then the immovables, which were delivered in pledge to the
creditors, or put under the care of a curator, and, if at the end of two
mouths, the debt was not paid, the land was sold. Dig. 42, t. 1. Code, 8,
34.
ACTIO NON, pleading. After stating the appearance and defence, special pleas
begin with this allegation, "that the said plaintiff ought not to have or
maintain his aforesaid action thereof against him," actio non habere debet.
This is technically termed the actio non. 1 Ch. Plead. 531 2 Ch. Plead.
421; Steph. Plead. 394.
ACTIO NON ACCREVIT INFRA SEX ANNOS. The name of a plea to the statute of
limitations when the defendant insists that the plaintiff's action has not
accrued within six years. It differs from non assumpsit in this: non
assumpsit is the proper plea to an action on a simple contract, when the
action accrues on the promise but when it does not accrue on the promise but
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subsequently to it, the proper plea is actio non accrevit, &c. Lawes, Pl. in
Ass. 733; 5 Binn. 200, 203; 2 Salk. 422; 1 Saund. Rep. 83 n. 2; 2 Saund, 63,
b; 1 Sell. N.P. 121.
ACTIO PERSONALIS MIORITUR CUM PERSONA. That a personal action dies with the
person, is an ancient and uncontested maxim. But the term personal action,
requires explanation. In a large sense all actions except those for the
recovery of real property may be called personal. This definition would
include contracts for the payment of money, which never were supposed to die
with the person. See 1 Saund. Rep. 217, note 1.
2. The maxim must therefore be taken in a more restricted meaning. It
extends to all wrongs attended with actual force, whether the affect the
person or property and to all injuries to the person only, though without
actual force. Thus stood originally the common law, in which an alteration
was made by the statute 4 Ed. III. c. 7, which gave an action to an executor
for an injury done to the personal property of his testator in his lifetime,
which was extended to the executor of an executor, by statute of 25 Ed. III.
c. 5. And by statute 31 Ed. III. c. 11, administrators have the same remedy
as executors.
3. These statutes received a liberal construction from the judges, but
they do not extend to injuries to the person of the deceased, nor to his
freehold. So that no action lies by an executor or administrator for an
assault and battery of the deceased, or trespass, vi et armis on his land,
or for slander, because it is merely a personal injury. Neither do they
extend to actions against executors or administrators for wrongs committed
by the deceased. 13 S. 184; Cowp. 376; 1 Saund. 216, 217, n. 1; Com. Dig
241, B 13; 1 Salk. 252; 6 S. & R. 272; W. Jones, 215.
4. Assumpsit may be maintained by executors or administrators, in those
cases where an injury has been done to the personal, property of the
deceased, and he might in his lifetime have waived the tort and sued in
assumpsit. 1 Bay's R. 61; Cowp. 374; 3 Mass. 321; 4 Mass. 480; 13 Mass. 272;
1 Root, 2165. An action for a breach of a promise of marriage cannot be
maintained by an executor, 2 M. & S. 408; nor against 13 S. & R. 183; 1
Picker. 71; unless, perhaps, where the plaintiff's testator sustained
special damages. 13 S. & R. 185. See further 12.S. & R. 76; 1 Day's Cas.
180; Bac. Abr. Ejectment, H11 Vin. Abr. 123; 1 Salk. 314; 2 Ld. Raym. 971 1
Salk. 12 Id. 295; Cro. Eliz. 377, 8 1 Str. 60 Went. Ex. 65; 1 Vent. 176 id.
so; 7 Serg. & R. 183; 7 East, 134-6 1 Saund. 216, a, n. 1; 6 Mass. 394; 2
Johns. 227; 1 Bos. & Pull. 330, n. a.; 1 Chit. Pi. 86; 3 Bouv. Inst. n.
2750; this Dictionary, tit. actions; Death; Parties to actions; Survivor.
ACTIO PRO SOCIO. In the civil law, is the name of an action by which either
partner could compel his co-partners to perform their social contract. Poth.
Contr. de Societe, n. 134.
ACTION. Conduct, behaviour, something done. Nomen actionis latissime patere
vulgo notum est ac comprehenders omnem omnino viventis operationem quae
passioni opponitur. Vinnius, Com. lib. 4, tit. 6. De actionibus.
2. Human actions have been divided into necessary actions, or those over
which man has no control; and into free actions, or such as he can control
at his pleasure. As man is responsible only when he exerts his will, it is
clear lie can be punished only for the latter.
3. Actions are also divided into positives and negative the former is
called an act of commission the latter is the omission of something which
ought to be done, and is called an act of omission. A man may be responsible
as well for acts of omission, as for acts of commission.
4. Actions are voluntary and involuntary. The former are performed
freely and without constraint - the latter are performed not by choice,
against one's will or in a manner independent of the will. In general a man
is not responsible for his involuntary actions. Yet it has been ruled that
if a lunatic hurt a man, he shall be answerable in trespass, although, if he
kill a man, it is not felony. See Hob. Rep. 134; Popham, 162; Pam. N. P. 68.
See also Duress; Will.
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ACTION, French com. law. Stock in a company, shares in a corporation.
ACTION, in practice. Actio nihil aliud est, quam jus persequendi in judicio
quod sibi debetur. Just. Inst. Lib. 4, tit. 6; Vinnius, Com. Actions are
divided into criminal and civil. Bac. Abr. Actions, A.
2.-1. A criminal action is a prosecution in a court of justice in
the name of the government, against one or more individuals accused of a
crime. See 1 Chitly's Cr. Law.
3.-2. A civil action is a legal demand of one's right, or it is the
form given by law for the recovery of that which is due. Co. Litt. 285; 3
Bl. Com. 116; 9 Bouv. Inst. n. 2639; Domat. Supp. des Lois Civiles, liv. 4,
tit. 1, No. 1; Poth. Introd. generale aux Coutumes, 109; 1 Sell. Pr. Introd.
s. 4, p. 73. Ersk. Princ. of Scot. Law, B. 41 t. 1. Sec. 1. Till judgment
the writ is properly called an action, but not after, and therefore, a
release of all actions is regularly no bar of all execution. Co. Litt. 289
a; Roll. Ab. 291. They are real, personal and mixed. An action is real or
personal, according as realty or personalty is recovered; not according to
the nature of the defence. Willes' Rep. 134.
4.-1. Real actions are those brought for the specific recovery of
lands, tenements, or hereditaments. Steph. Pl. 3. They are either
procedural, when the demandant seeks to recover the property; or possessory
when he endeavors to obtain the possession. Finch's Law, 257, 8. See Bac.
Abr. Actions, A, contra. Real Actions are, 1st. Writs of right; 2dly, Writs
of entry, which lie in the per, the per et cui, or the post, upon disseisin,
intrusion, or alienation. 3dly. Writs ancestral possessory, as Mort d'
ancester, aid, vbesaiel[?], cosinage, or Nuper obiit. Com. Dig. Actions, D
2. By these actions formerly all disputes concerning real estate, were
decided; but now they are pretty generally laid aside in practice, upon
account of the great nicety required in their management, and the
inconvenient length of their process; a much more expeditious, method of
trying titles being since introduced by other actions, personal and mixed. 3
Bl. Com. 118. See Booth on Real Actions.
5.-2. Personal actions are those brought for the specific recovery of
goods and chattels; or for damages or other redress for breach of contract,
or other injuries, of whatever description; the specific recovery of lands,
tenements, and hereditaments only excepted. Steph. Pl. 3; Com. Dig. Actions,
D 3; 3 Bouv. Inst. n. 2641. Personal actions arise either upon contracts, or
for wrongs independently of contracts. The former are account, assumpsit,
covenant, debt, and detinue; see these words. In Connecticut and Vermont
there is, an action used which is peculiar to those states, called the
action of book debt. 2 Swift's Syst. Ch. 15. The actions for wrongs,
injuries, or torts, are trespass on the case, replevin, trespass, trover.
See these words, and see Actio personalis moritur cum persona.
6.-3. Mixed actions are such as appertain, in some degree, to both
the former classes, and, therefore, are properly reducible to neither of
them, being brought for the specific recovery of lands, tenements, or
hereditaments, and for damages for injury sustained in respect of such
property. Steph. Pl. 3; Co. Litt. 284, b; Com. Dig. Actions, D 4. Every
mixed action, properly so called, is also a real action. The action of
ejectment is a personal action, and formerly, a count for an assault and
battery might be joined with a count for the recovery of a term of Years in
land.
7. Actions are also divided into those which are local and such as are
transitory.
1. A local action is one in which the venue must still be laid in
the county, in which the cause of action actually arose. The locality of
actions is founded in some cases, on common law principles, in others on the
statute law.
8. Of those which continue local, by the common law, are, 1st, all
actions in which the subject or thing to be recovered is in its nature
local. Of this class are real actions, actions of waste, when brought on
the statute of Gloucester, (6 Edw. I.) to recover with the damages, the
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locus in quo or place wasted; and actions of ejectment. Bac. Abr. Actions
Local, &c. A, a; Com. Dig. Actions, N 1; 7 Co. 2 b; 2 Bl. Rep. 1070. All
these are local, because they are brought to recover the seisin or
possession of lands or tenements, which are local subjects.
9.-2dly. Various actions which do not seek the direct recovery of
lands or tenements, are also local, by the common law; because they arise
out of some local subject, or the violation of some local right or interest.
For example, the action of quare impedit is local, inasmuch as the benefice,
in the right of presentation to which the plaintiff complains of being
obstructed, is so. 7 Co. 3 a; 1 Chit. Pl. 271; Com. Dig. Actions, N 4.
Within this class of cases are also many actions in which only pecuniary
damages are recoverable. Such are the common law action of waste, and
trespass quare clausum fregit; as likewise trespass on the case for injuries
affecting things real, as for nuisances to houses or lands; disturbance of
rights of way or of common; obstruction or diversion of ancient water
courses, &c. 1 Chit. Pl. 271; Gould on Pl. ch. 3, Sec. 105, 106, 107. The
action of replevin, also, though it lies for damages only, and does not
arise out of the violation of any local right, is nevertheless local. 1
Saund. 347, n. 1. The reason of its locality appears to be the necessity of
giving a local description of the taking complained of. Gould on Pl. ch. 3,
Sec. 111. A scire facias upon a record, (which is an action, 2 Term Rep.
46,) although to some intents, a continuation of the original suit, 1 Term
Rep. 388, is also local.
10.-2. Personal actions which seek nothing more than the recovery of
money or personal chattels of any kind, are in most cases transitory,
whether they sound in tort or in contract; Com. Dig. Actions, N 12; 1 Chit.
Pl. 273; because actions of this class are, in most instances, founded on
the violation of rights which, in contemplation of law, have no locality. 1
Saund. 241, b, note 6. And it will be found true, as a general position,
that actions ex delicto, in which a mere personalty is recoverable, are, by
the common law, transitory; except when founded upon, or arising out of some
local subject. Gould on Pl. ch. 3, Sec. 112. The venue in a transitory
action may be laid in any county which the plaintiff may prefer. Bac. Abr.
Actions Local, &c. A. (a.)
11. In the civil law actions are divided into real, personal, and mixed.
A real action, according to the civil law, is that which he who is the owner
of a thing, or, has a right in it, has against him who is in possession of
it, to compel him to give up the plaintiff, or to permit him to enjoy the
right he has in it. It is a right which a person has in a thing, follows the
thing, and may be instituted against him who possesses it; and this whether
the thing be movable or immovable and, in the sense of the common law,
whether the thing be real or personal. See Domat, Supp. des Lois Civiles,
Liv. 4, tit. 1, n. 5; Pothier, Introd. Generales aux Coutumes 110; Ersk. Pr.
Scot. Law, B. 4, t. 1, Sec. 2.
12. A personal action is that which a creditor has against his debtor,
to compel him to fulfill his engagement. Pothier, lb. Personal actions are
divided into civil actions and criminal actions. The former are those which
are instituted to compel the payment or to do some other thing purely civil
the latter are those by which the plaintiff asks the reparation of a tort or
injury which he or those who belong to him have sustained. Sometimes these
two kinds of actions are united when they assume the name of mixed personal
actions. Domat, Supp. des Lois Civiles, Liv. 4, tit. 1, n. 4; 1 Brown's Civ.
Law, 440.
13. Mixed actions participate both of personal and real actions. Such
are the actions of partition, and to compel the parties to put down
landmarks or boundaries. Domat, ubi supra.
ACTION AD EXHIBENDUM, civil law. This was an action instituted for the
purpose of compelling the defendant to exhibit a thing or title, in his
power. It was preparatory to another action, which was always a real action
in the sense of the Roman law, that is, for the recovery of a thing, whether
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it was movable or immovable. Merl. Quest. de Dr. tome i. 84. This is not
unlike a bill of discovery. (q.v.)
ACTION OF A WRIT. This phrase is used when one pleads some matter by which
he shows that the plaintiff had no cause to have the writ which he brought,
and yet he may have a writ or action for the same matter. Such a plea is
called: a plea to the action of the writ, whereas if it should appear by the
plea that the plaintiff has no cause to have action for the thing demanded,
then it is called a plea to the action. Termes de la ley.
ACTIONS ORDINARY. Scotch law. By this term is understood all actions not
recissory. Ersk. Pr. L. Scot. 4, 1, 5.
AD DIEM. At the day, as a plea of payment ad diem, on the day when the money
became due. See Solvit ad diem, and Com. Dig. Pleader, 2 W. 29.
AD INQUIRENDUM, practice. A judicial writ, commanding inquiry to be made of
any thing relating to a cause depending in court.
AD INTERIM. In the mean time. An officer is sometimes appointed ad interim,
when the principal officer is absent, or for some cause incapable of acting
for the time.
AD LARGUM. At large; as, title at large, assize at large. See Dane's Abr.
ch. 144,
AD QUEM. A Latin expression which signifies to which, in the computation of
time or distance, as the day ad quem. The last day of the term, is always
computed. See A quo.
QUOD DAMNUM, Eng. law. The name of a writ issuing out of and returnable into
chancery, directed to the sheriff, commanding him to inquire by a jury 'What
damage it will be to the king, or any other, to grant a liberty, fair,
market, highway, or the like.
AD SECTAM. At the suit of, commonly abbreviated ads. It is usual in filing
pleas, and other papers, for a defendant, instead of putting the name of the
plaintiff first, as Peter v. Paul to put his own first, and instead of v. to
put ads., as Paul ads. Peter.
AD TERMINUM QUI PRETERIIT. The name of a writ of entry which lay for the
lessor or his heirs, when a lease had been made of lands or tenements, for
term of life or years, and, after the term had expired, the lands were
withheld from the lessor by the tenant, or other person possessing the same.
F. N. B. 201. The remedy now applied for holding over (q, v.) is by
ejectment, or under local regulations, by summary proceedings.
AD TUNC ET IBIDEM. That part of an indictment, where it is stated that the
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object-matter of the crime or offence" then and there being found," is
technically so called. N. C. Term R. 93; Bac. Ab. Indictment, G 4.
ADMEASUREMENT OF PASTURE, Eng. law. The name of a writ which lies where any
tenants have common appendant in another ground and one overcharges the
common with beasts. The other commoners, to obtain their just rights, may
sue out this writ against him.
ADMINICLE 1. A term, in the Scotch and French law, for any writing or deed
referred to by a party, in an action at law, for proving his allegations. 2.
An ancient term for aid or support. 3. A term in the civil, law for
imperfect proof. Tech. Dict. h.t.; Merl. Repert. mot Adminicule.
ADMINICULAR EVIDENCE, eccl. law. This term is used in the ecclesiastical law
to signify evidence, which is brought to explain or complete other evidence.
2 Lee, Eccle.R. 595.
The reader is referred to the article Courts of the United States, where he
will find all which has been thought necessary to say upon it as been the
subject. Vide, generally, Dunlap's Adm. Practice; Bett's Adm. Practice; 1
Kent's Com. 353 to 380; Serg. Const. Law, Index, h.t.; 2 Gall. R. 398. to
476; 2 Chit. P. 508; Bac. Ab. Courts of Admiralty; 6 Vin. Ab. 505; Dane's
Ab. Index b. t; 12 Bro. Civ. and Adm. Law; Wheat. Dig. 1; 1 Story L. U. S.
56, 60; 2 Id. 905, 3 Id. 1564, 1696; 4 Sharsw. cont. of Story's L. U. S.
2262; Clerke's Praxis; Collectanea Maritima; 1 U. S. Dig. tit. Admiralty
Courts, XIII.
upon descent.
ADMIITENDO IN SOCIUM. Eng. law. A writ associating certain persons to
justices of assize.
ADMONITION. A reprimand from a judge to a person accused, on being
discharged, warning him of the consequences of his conduct, and intimating
to him, that should he be guilty of the same fault for which he has been
admonished, he will be punished with greater severity. Merlin, Repert. h.t.
2. The admonition was authorized by the civil law, as a species of
punishment for slight misdemeanors. Vide Reprimand
ADNEPOS. A term employed by the Romans to designate male descendants in the
fifth degree, in a direct line. This term is used in making genealogical
tables.
ADOLESCENCE, persons. That age which follows puberty and precedes the age of
majority; it commences for males at fourteen, and for females at twelve
years completed, and continues till twenty-one years complete.
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ADOPTION, civil law. The act by which a person chooses another from a
strange family, to have all the rights of his own child. Merl. Repert. h.t.;
Dig. 1, 7, 15, 1; and see Arrogation. By art. 232, of the civil code of
Louisiana, it is abolished in that state. It never was in use in any other
of the United States.
ADROGATION, civil law. The adoption of one who was impubes, that is, if a
male, under fourteen years of age; if a female, under twelve. Dig. 1, 7, 17,
1.
ADULT, in the civil law. An infant who, if a boy, has attained his full age
of fourteen years, and if a girl, her full age of twelve. Domat, Liv. Prel.
t. 2, s. 2, n. 8. In the common law an adult is considered one of full age.
1 Swanst. R. 553.
ADULTERATION. This term denotes the act of mixing something impure with
something pure, as, to mix an inferior liquor with wino; au inferior article
with coffee, tea,.and the like.
ADULTERINE. A term used in the civil law to denote the issue of an
adulterous intercourse. See Nicholas on Adulterine Bastardy.
ADULTERIUM. In the old records this word does not signify the offence of
adultery, but the fine imposed for its commission. Barr. on the Stat. 62,
note.
ADULTERY, criminal law. From ad and alter, another person; a criminal
conversation, between a man married to another woman, and a woman married to
another man, or a married and unmarried person. The married person is guilty
of adultery, the unmarried of fornication. (q.v.) 1 Yeates, 6; 2 Dall. 124;
but see 2 Blackf. 318.
2. The elements of this crime are, 1st, that there shall be an unlawful
carnal connexion; 2dly, that the guilty party shall at the time be married;
3dly, that he or she shall willingly commit the offence; for a woman who has
been ravished against her will is not guilty of adultery. Domat, Supp. du
Droit Public, liv. 3, t. 10, n. 13.
3. The punishment of adultery, in the United States, generally, is fine
and imprisonment.
4. In England it is left to the feeble hands of the ecclesiastical
courts to punish this offence.
5. Adultery in one of the married persons is good cause for obtaining a
divorce by the innocent partner. See 1 Pick. 136; 8 Pick. 433; 9 Mass. 492:
14 Pick. 518; 7 Greenl. 57; 8 Greenl. 75; 7 Conn. 267 10 Conn. 372; 6 Verm.
311; 2 Fairf. 391 4 S. & R. 449; 5 Rand. 634; 6 Rand. 627; 8 S. & R. 159; 2
Yeates, 278, 466; 4 N. H. Rep. 501; 5 Day, 149; 2 N. & M. 167.
6. As to proof of adultery, see 2 Greenl. Sec. 40, Marriage.
ADVANCEMENT. That which is given by a father to his child or presumptive
heir, by anticipation of what he might inherit. 6 Watts, R. 87; 17 Mass. R.
358; 16 Mass. R. 200; 4 S. & R. 333; 11 John. R. 91; Wright, R. 339. See
also Coop Just. 515, 575; 1 Tho. Co. Lit. 835, 6; 3 Do. 345, 348; Toll. 301;
5 Vez. 721; 2 Rob. on Wills, 128; Wash. C. C. Rep. 225; 4 S. & R. 333; 1 S.
& R. 312; 3 Conn. Rep. 31; and post Collatio bonorum.
2. To constitute an advancement by the law of England, the gift must be
made by the father and not by another, not even by the mother. 2 P. Wms.
856. In Pennsylvania a gift of real or personal estate by the father or
mother may be an advancement. 1 S. & R. 427; Act 19 April 1794, Sec. 9; Act
8 April, 1833, Sec. 16. There are in the statute laws of the several states
provisions relative to real and personal estates, similar in most respects
to those which exist in the English statute of distribution, concerning an
advancement to a child. If any child of the intestate has been advanced by
him by settlement, either out of the real or personal estate, or both, equal
or superior to the amount in value of the share of such child which would be
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due from the real and personal estate, if no such advancement had been made,
then such child and his descendants, are excluded from any share in the real
or personal estate of the intestate.
3. But if the advancement be not equal, then such child, and in case of
his death, his descendants, are entitled to receive, from the real and
personal estate, sufficient to make up the deficiency, and no more.
4. The advancement, is either express or implied. As to what is an
implied advancement, see 2 Fonb. Eq. 121; 1 Supp. to Ves. Jr. 84; 2 lb. 57;
1 Vern. by Raithby, 88, 108, 216; 5 Ves. 421; Bac. Ab. h.t.; 4 Kent, Com.
173.
5. A debt due by a child to his father differs from an advancement. In
case of a debt, the money due may be recovered by action for the use of the
estate, whether any other property be left by the deceased or not; whereas,
an advancement merely bars the child's right to receive any part of his
father's estate, unless he brings into hotch pot[?] the property advanced.
17 Mass. R. 93, 359. See, generally, 17 Mass. R. 81, 356; 4 Pick. R. 21; 4
Mass. R. 680; 8 Mass. R. 143; 10. Mass. R. 437; 5 Pick. R. 527; 7 Conn. R.
1; 6 Conn. R. 355; 5 Paige's R. 318; 6 Watts' R. 86, 254, 309; 2 Yerg. R.
135; 3 Yerg. R. 95; Bac. Ab. Trusts, D; Math. on Pres. 59; 5 Hayw. 137; 11
John. 91; l Swanst. 13; 1 Ch. Cas. 58; 3 Conn. 31; 15 Ves. 43, 50; U. S.
Dig. h.t.; 6 Whart. 370; 4 S. & R. 333; 4 Whart. 130, 540; 5 Watts, 9; 1
Watts & Serg. 390; 10 Watts, R. 158; 5 Rawle, 213; 5 Watts, 9, 80; 6 Watts &
Serg. 203. The law of France in respect to advancements is stated at length
in Morl. Rep. de Jurisp. Rapport a succession.
ADVANCES, contracts. Said to take place when, a factor or agent pays to his
principal, a sum of, money on the credit of goods belonging to the
principal, which are placed, or are to be placed, in the possession of the
factor or agent, in order to reimburse himself out of the proceeds of the
sale. In such case the factor or agent has a lien to the amount of his
claim. Cowp. R. 251; 2 Burr. R. 931; Liverm. on Ag. 38; Journ. of Law, 146.
2. The agent or factor has a right not only to advances made to the
owner of goods, but also for expenses and disbursements made in the course
of his agency, out of his own moneys, on account of, or for the benefit of
his principal; such as incidental charges for warehouse-room, duties,
freight, general average, salvage, repairs, journeys, and all other acts
done to preserve the property of the principal, and to enable the agent to
accomplish the objects of the principal, are to be paid fully by the latter.
Story on Bailm. 197; Story on Ag. Sec. 335.
3. The advances, expenses and disbursements of the agent must, however,
have been made in good faith, without any default on his part Liv. on Ag.
14-16; Smith on Merc. 56 Paley on Ag. by Lloyd, 109; 6 East, R. 392; 2 Bouv.
list. n. 1340.
4. When the advances and disbursements have been properly made, the
agent is entitled not only to the return of the money so advanced, but to
interest upon such advances and disbursements, whenever from the nature of
the business, or the usage of trade, or the particular agreement of the
parties, it may be fairly presumed to be stipulated for, or due to the
agent. 7 Wend. R. 315; 3 Binn. R. 295; 3 Caines' R. 226; 1 H. Bl. 303; 3
Camp. R. 467 15 East, R. 223; 2 Bouv. Inst. n. 1341. This just rule
coincides with the civil law on this subject. Dig. 17, 1, 12, 9; Poth. Pand.
lib. 17, t. 1, n. 74.
ADVENTITIOUS, adventitius. From advenio; what comes incidentally; us
adventitia bona, goods that, fall to a man otherwise than by inheritance; or
adventitia dos, a dowry or portion given by some other friend beside the
parent.
ADVENTURE, bill of. A writing signed by a merchant, to testify that the
goods shipped on board a certain vessel are at the venture of another
person, he himself being answerable only for the produce. Techn. Dict.
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ADVENTURE, crim. law. See Misadventure.
ADVENTURE, mer. law. Goods sent abroad under the care of a supercargo, to be
disposed of to the best advantage for the benefit of his employers, is
called an adventure.
ADVERSARY. One who is a party in a writ or action opposed to the other
party.
ADVERSE POSSESSION, title to lands. The enjoyment of land, or such estate as
lies in grant, under such circumstances as indicate that such enjoyment has
been commenced and continued, under an assertion or color of right on the
part of the possessor. 3 East, R. 394; 1 Pick. Rep. 466; 1 Dall. R. 67; 2
Serg. & Rawle, 527; 10 Watts R, 289; 8 Con R. 440; 3 Penn. 132; 2 Aik. 364;
2 Watts, 23; 9, John. 174; 18 John. 40, 355; 5 Pet. 402; 4 Bibb, 550.
Actual possession is a pedis possessio which can be only of ground enclosed,
and only such possession can a wrongdoer have. He can have no constructive
possession. 7 Serg. & R. 192; 3 Id. 517; 2 Wash. C. Rep. 478, 479.
2. When the possession or enjoyment has been adverse for twenty years,
of which the jury are to judge from the circumstances the law raises the
presumption of a grant. Ang. on Wat. Courses, 85, et seq. But this
presumption arises only when the use or occupation would otherwise have been
unlawful. 3 Greenl. R. 120; 6 Binn. R. 416; 6 Cowen, R. 617, 677; Cowen, R.
589; 4 S. & R. 456. See 2 Smith's Lead. Cas. 307-416.
3. There are four general rules by which it may be ascertained that
possession is not adverse; these will be separately considered.
4.-1. When both parties claim under the same title; as, if a man
seised of certain land in fee, have issue two sons and die seised, and one
of the sons enter by abatement into the land, the statute, of limitations
will not operate against the other son; for when the abator entered into the
land of his father, before entry made by his brother, the law intends that
he entered claiming as heir to his father, by which title the other son also
claims. Co. Litt s. 396.
5.-2. When the possession of the one party is consistent with the
title of the other; as, where, the rents of a trust state were received by a
cestui que trust for more than twenty years after the creation of the trust,
without any interference, of the trustee, such possession being consistent
with and secured to the cestui que trust by the terms of the deed, the
receipt was held not to be adverse to the title of the trustee. 8 East. 248.
6.-3. When, in contemplation of law, the claimant has never been out
of possession; as, where Paul devised lands to John and his heirs, and died,
and John died, and afterwards the heirs of John and a stranger entered, and
took the profits for twenty years; upon ejectment brought by the devisee of
the heir of John against the stranger, it was held that the perception of
the rents and profits by the stranger was not adverse to the devisee's
title; for when two men are in possession, the law adjudges it to be the
possession of him who has the right. Lord Raym. 329.
7.-4. When the occupier has acknowledged the claimant's titles; as,
if a lease be granted for a term, and, after paying the rent for the land
during such term, the tenant hold for twenty years without paying rent, his
possession will not be adverse. See Bos. & P. 542; 8 B. & Cr. 717; 2 Bouv.
Inst. n. 2193-94, 2351.
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ADVICE, com. law. A letter containing information of any circumstances
unknown to the person to whom it is written; when goods are forwarded by sea
or land, the letter transmitted to inform the consignee of the fact, is
termed advice of goods, or letter of advice. When one merchant draws upon
another, he generally advises him of the fact. These letters are intended
to give notice of the facts they contain.
ADVICE, practice. The opinion given by counsel to their clients; this should
never be done but upon mature deliberation to the best of the counsel's
ability; and without regard to the consideration whether it will affect the
client favorably or unfavorably.
ADVISEMENT. Consideration, deliberation, consultation; as the court holds
the case under advisement.
ADVOCATE, civil and ecclesiastical law. 1. An officer who maintains or de
fends the rights of his client in the same manner as the counsellor does in
the common law.
2. Lord Advocate. An, officer of state in Scotland, appointed by the
king, to advise about the making and executing the law, to prosecute capital
crimes, &c.
3. College or faculty of advocates. A college consisting of 180
persons, appointed to plead in. all actions before the lords of sessions.
4. Church or ecclesiastical advocates. Pleaders appointed by the church
to maintain its rights.
5.-2. A patron who has the advowson or presentation to a church.
Tech. Dict.; Ayl. Per. 53; Dane Ab. c.,31, Sec. 20. See Counsellor at law;
Honorarium.
ADVOCATIA, civil law. This sometimes signifies the quality, or functions,
and at other times the privilege, or the territorial jurisdiction of an
advocate, See Du Cange, voce Advocatia, Advocatio.
ADVOCATION, Scotch law. A writing drawn up in the form of a petition, called
a bill of advocation, by which a party in an action applies to the supreme
court to advocate its cause, and to call the action out of an inferior court
to itself. Letters of advocation, are the decree or warrant of the supreme
court or court of sessions, discharging the inferior tribunal from all
further proceedings in the matter, and advocating the action to itself.
This proceeding is similar to a certiorari (q.v.) issuing out of a superior
court for the removal of a cause from an inferior.
ADVOCATUS. A pleader, a narrator. Bract. 412 a, 372 b.
ADVOWSON, ecclesiastical law. From advow or advocare, a right of
presentation to a church or benefice. He who possesses this right is called
the patron or advocate, (q.v.) when there is no patron, or he neglects to
exercise his right within six months, it is called a lapse, i. e. a title is
given to the ordinary to collate to a church; when a presentation is made by
one who has no right it is called a usurpation.
2. Advowsons are of different kinds, as Advowson appendant, when it
depends upon a manor, &c. - Advowson in gross, when it belongs to a person
and not to a manor. - Advowson presentative, where the patron presents to
the bishop. - Advowson donative, where the king or patron puts the clerk
into possession without presentation. - Advowson of the moiety of the
church, where there are two several patrons and two incumbents in the same
church. - A moiety of advowson, where two must join the presentation, of one
incumbent. - Advowson of religious houses, that which is vested in the
person who founded such a house. Techn. Dict.; 2 Bl. Com. 21; Mirehouse on
Advowsons; Com. Dig. Advowson, Quare Impedit; Bac. Ab. Simony; Burn's Eccl.
Law, h.t.; Cruise's Dig. Index, h.t.
AFFECTION, contracts. The making over, pawning, or mortgaging a thing to
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assure the payment of a sum of money, or the discharge of some other duty or
service. Techn. Diet.
AFFEERERS, English law. Those who upon oath settle and moderate fines in
courts leet[?]. Hawk. 1. 2, c. 112.
AFFRAY, criminal law. The fighting of two or more persons, in some public
place, to the terror of the people.
2. To constitute this offence there must be, 1st, a fighting; 2d, the
fighting must be between two or more persons; 3d, it must be in some public
place ; 4th, it must be to the terror of the people.
3. It differs from a riot, it not being premeditated; for if any
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persons meet together upon any lawful or innocent occasion, and happen on a
sudden to engage in fighting, they are not guilty of a riot but an affray
only; and in that case none are guilty except those actually engaged in it.
Hawk. b. 1, c. 65, s. 3 ; 4 Bl. Com. 146; 1 Russell, 271.
AFFREIGHTMENT, Com. law. The contract by which a vessel or the use of it, is
let out to hire. See Freight; General ship.
AFORESAID. Before mentioned; already spoken of. This is used for the purpose
of identifying a person or thing; as where Peter, of the city of
Philadelphia, has been mentioned; when it is necessary to speak of him, it
is only requisite to say Peter aforesaid, and if the city of Philadelphia,
it may be done as the city of Philadelphia, aforesaid.
AFORETHOUGHT, crim. law. Premeditated, prepense; the length of time during
which the accused has entertained the thought of committing the offence is
not very material, provided he has in fact entertained such thought; he is
thereby rendered criminal in a greater degree than if he had committed the
offence without. premeditation. Vide Malice; aforethought; Premeditation 2
Chit. Cr. 785; 4 Bl. Com. 199; Fost. 132, 291, 292; Cro. Car. 131; Palm.
545; W. Jones, 198; 4 Dall. R. 146; 1 P. A. Bro. App. xviii.; Addis. R. 148;
1 Ashm. R. 289.
AFTERMATH. A right to have the last crop of grass or pasturage. 1 Chit. Pr.
181.
AGAINST THE WILL, pleadings. In indictments for robbery from the person, the
words "feloniously and against the will," must be introduced; no other words
or phrase will sufficiently charge the offence. 1 Chit. Cr. 244.
AGARD. An old word which signifies award. It is used in pleading, as nul
agard, no award;
AGE. The time when the law allows persons to do acts which, for want of
years, they were prohibited from doing before. See Coop. Justin. 446.
2. For males, before they arrive at fourteen years they are said not to
be of discretion; at that age they may consent to marriage and choose a
guardian. Twenty-one years is full age for all private purposes, and the may
then exercise their rights as citizens by voting for public officers; and
are eligible to all offices, unless otherwise provided for in the
constitution. At 25, a man may be elected a representative in Congress; at
30, a senator; and at 35, he may be chosen president of the United States.
He is liable to serve in the militia from 18 to 45. inclusive, unless
exempted for some particular reason.
3. As to females, at 12, they arrive at years of discretion and may
consent to marriage; at 14, they may choose a guardian; and 21, as in males,
is fun Age, when they may exercise all the rights which belong to their sex.
4. In England no one can be chosen member of parliament till he has
attained 21 years; nor be ordained a priest under the age of 24; nor made a
bishop till he has completed his 30th year. The age of serving in the
militia is from 16 to 45 years.
5. By the laws of France many provisions are made in respect to age,
among which are the following. To be a member of the legislative body, the
person must have attained 40 years; 25, to be a judge of a tribunal de
remiere instance; 27, to be its president, or to be judge or clerk of a
court royale ; 30, to be its president or procurer general; 25, to be a
justice of the peace; 30, to be judge of a tribunal of commerce, and 35, to
be its president; 25, to be a notary public; 21, to be a testamentary
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witness; 30, to be a juror. At 16, a minor may devise one half of his,
property as if he were a major. A male cannot contract marriage till after
the 18th year, nor a female before full 15 years. At 21, both males and
females are capable to perform all the act's of civil life. Toull. Dr. Civ.
Fr. Liv. 1, Intr. n. 188.
6. In the civil law, the age of a man was divided as follows: namely,
the infancy of males extended to the full accomplishment of the 14th year;
at 14, he entered the age of puberty, and was said to have acquired full
puberty at 18 years accomplished, and was major on completing his 25th year.
A female was an infant til 7 years; at 12, she entered puberty, and acquired
full puberty at 14; she became of fall age on completing her 25th year.
Lecons Elem. du Dr. Civ. Rom. 22.
See Com. Dig. Baron and Feme, B 5, Dower, A, 3, Enfant, C 9, 10, 11, D
3, Pleader, 2 G 3, 2 W 22, 2 Y 8; Bac. Ab. Infancy and Age; 2 Vin. Ab. 131;
Constitution of the United States; Domat. Lois Civ. tome 1, p. 10; Merlin,
Repert. de Jurisp. mot Age; Ayl. Pand. 62; 1 Coke Inst. 78; 1 Bl. Com. 463.
See Witness.
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AGIO, aggio. This term is used to denote the difference of price between the
value of bank notes and nominal money, and the coin of the country. Encyc.
AGIST, in contracts. The taking of other men's cattle on one's own ground at
a certain rate. 2 Inst. 643; 4 Inst. 293.
AGISTER. One who takes horses or other animals to agist.
2. The agister is not, like an innkeeper, bound to take all horses
offered to him, nor is he liable for any injury done to such animals in his
care, unless he has been guilty of negligence, or from his ignorance,
negligence may be inferred. Holt's R. 457.
AGISTMENT, contracts. The taking of another person's cattle into one's own
ground to be fed, for a consideration to be paid by the owner. The person
who receives the cattle is called an agister.
2. An agister is bound to ordinary diligence, and of course is
responsible for loses by ordinary negligence; but he does not insure the
safety of the cattle agisted. Jones, Bailm. 91; I Bell's Com. 458; Holt's N.
P. Rep. 547; Story, Bail. Sec. 443; Bac. Ab. Tythes, C l.
AGNATES. In the sense of the Roman law were those whose propinquity was
connected by males only; in the relation of cognates, one or more females
were interposed.
2. By the Scotch law, agnates are all those who are related by the
father, even though females intervene; cognates are those who are related by
the mother. Ersk. L. Scot. B. 1, t. 7, s. 4.
AGNATI, in descents. Relations on the father's side: they are different from
the cognati, they being relations on the mother's side, affines, who are
allied by marriage, and the propinqui, or relations in general. 2 Bl. Com.
235; Toull. Dr. Civ. Fr. tome 1, p. 139; Poth. Pand. Tom. 22, p. 27. Calvini
Lex.
AGNATION, in descents. The relation by blood which exists between such males
as are descended from the same father; in distinction from cognation or
consanguinity, which includes the descendants from females. This term is
principally used in the civil law.
AGRARIAN LAW. Among the Romans, this name was given to a law, which had for
its object, the division among the people of all the lands which had been
conquered, and which belonged to the domain of the state.
AGREEMENT, contract. The consent of two or more persons concurring,
respecting the transmission of some property, right or benefit, with a view
of contracting an obligation. Bac. Ab. h.t.; Com. Dig. h.t.; Vin. Ab. h.t.;
Plowd. 17; 1 Com. Contr. 2; 5 East's R. 16. It will be proper to consider,
1, the requisites of an agreement; 2, the kinds of agreements; 3, how they
are annulled.
2.-1. To render an agreement complete six things must concur; there
must be, 1, a person able to contract; 2, a person able to be contracted
with; 3, a thing to be contracted for; 4, a lawful consideration, or quid
pro quo; 5, words to express the agreement; 6, the assent of the contracting
parties. Plowd. 161; Co. Litt. 35, b.
3.-2. As to their form, agreements are of two kinds; 1, by parol, or,
in writing, as contradistinguished from specialties; 2, by specialty, or
under seal. In relation to their performance, agreements are executed or
executory. An agreement is said to be executed when two or more persons make
over their respective rights in a thing to one another, and thereby change
the property therein, either presently and at once, or at a future time,
upon some event that shall give it full effect, without either party
trusting to the other; as where things are bought, paid for and delivered.
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Executory agreements, in the ordinary acceptation of the term, are such
contracts as rest on articles, memorandums, parol promises, or undertakings,
and the like, to be performed in future, or which are entered into
preparatory to more solemn and formal alienations of property. Powell on
Cont. Agreements are also conditional and unconditional. They are
conditional when some condition must be fulfilled before they can have full
effect; they are unconditional when there is no condition attached;
4.-3. Agreements are annulled or rendered of no effect, first, by the
acts of the parties, as, by payment; release - accord and satisfaction;
rescission, which is express or implied; 1 Watts & Serg. 442; defeasance; by
novation: secondly, by the acts of the law, as, confusion; merger; lapse of
time; death, as when a man who has bound himself to teach an apprentice,
dies; extinction of the thing which is the subject of the contract, as, when
the agreement is to deliver a certain horse and before the time of delivery
he dies. See Discharge of a Contract.
5. The writing or instrument containing an agreement is also called an
agreement, and sometimes articles of agreement.(q.v.)
6. It is proper, to remark that there is much difference between an
agreement and articles of agreement which are only evidence of it. From the
moment that the parties have given their consent, the agreement or contract
is formed, and, whether it can be proved or not, it has not less the quality
to bind both contracting parties. A want of proof does not make it null,
because that proof may be supplied aliunde, and the moment it is obtained,
the contract may be enforced.
7. Again, the agreement may be mull, as when it was obtained by fraud,
duress, and the like; and the articles of agreement may be good, as far as
the form is concerned. Vide Contract. Deed; Guaranty; Parties to Contracts.
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ALLEGATA. A word which the emperors formerly signed at the bottom of their
rescripts and constitutions; under other instruments they usually wrote nata
or testate. Ency. Lond.
ALLEGATA AND PROBATA. The allegations made by a party to a suit, and the
proof adduced in their support. It is a general rule of evidence that the
allegata and probata must correspond; that is, the proof must at least be
sufficiently extensive to cover all the allegations of the party. Greenl.
Ev. Sec. 51; 3 R. s. 636.
ALLEGATION, English ecclesiastical law. According to the practice of the
prerogative court, the facts intended to be relied on in support of the
contested suit are set forth in the plea, which is termed an allegation;
this is submitted to the inspection of the counsel of the adverse party,
and, if it appear to them objectionable in form or substance, they oppose
the admission of it. If the opposition goes to the substance of the
allegation, and is held to be well founded, the court rejects it; by which
mode of proceeding the suit is terminated without, going into any proof of
the facts. 1 Phil. 1, n.; 1 Eccl. Rep. ll, n. S. C. See 1 Brown's Civ. Law,
472, 3, n.
ALLEGATION, common law. The assertion, declaration or statement of a party
of what he can prove.
ALLEGATION, civil law. The citation or reference to a voucher to support a
proposition. Dict. de jurisp.; Encyclopedie, mot Allegation; 1 Brown's Civ.
Law, 473, n.
ALLEGATION OF FACULTIES When a suit is instituted in the English
ecclesiastical courts, in order to obtain alimony, before it is allowed, an
allegation must be made on the part of the wife, stating the property of the
husband. This allegation is called an allegation of faculties. Shelf. on
Mar. and Div. 587.
ALLEGIANCE. The tie which binds the citizen to the government, in return for
the protection which the government affords him.
2. It is natural, acquired, or local. Natural allegiance is such as is
due from all men born within the United States; acquired allegiance is that
which is due by a naturalized citizen. It has never been decided whether a
citizen can, by expatriation, divest himself absolutely of that character. 2
Cranch, 64; 1 Peters' C. C. Rep. 159; 7 Wheat. R. 283; 9 Mass. R. 461.
Infants cannot assume allegiance, (4 Bin. 49) although they enlist in the
army of the United States. 5 Bin. 429.
3. It seems, however, that he cannot renounce his allegiance to the
United States without the permission of the government, to be declared by
law. But for commercial purposes he may acquire the rights of a citizen of
another country, and the place of his domicil determines the character of a
party as to trade. 1 Kent, Com. 71; Com. Rep. 677; 2 Kent, Com. 42.
4. Local allegiance is that which is due from an alien, while resident
in the United States, for the protection which the government affords him. 1
Bl. Com. 366, 372; Com. Dig. h.t; Dane's Ab. Index, h.t.; 1 East, P.C. 49
to 57.
ALLONGE, French law. When a bill of exchange, or other paper, is too small
to receive the endorsements which are to be made on it, another piece of
paper is added to it, and bears the name of allonge. Pard. n. 343; Story on
P. N. Sec. 121, 151; Story on Bills, 204. See Rider.
ALLOY, or ALLAY. An inferior metal, used with gold. and silver in making
coin or public money. Originally, it was one of the allowances known by the
name of remedy for errors, in the weight and purity of coins. The practice
of making such allowances continued in all European mints after the reasons,
upon which they were originally founded, had, in a great measure, ceased. In
the imperfection of the art of coining, the mixture of the metals used, and
the striking of the coins, could not be effected with, perfect accuracy.
There would be some variety in the mixture of metals made at different
times, although intended to be in the same proportions, and in different
pieces of coin, although struck by the same process and from the same die.
But the art of coining metals has now so nearly attained perfection, that
such allowances have become, if not altogether, in a great measure at least,
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unnecessary. The laws of the United States make no allowance for
deficiencies of weight. See Report of the Secretary of State of the United
States, to the Senate of the U. S., Feb. 22, 1821, pp. 63, 64.
2. The act of Congress of 2d of April, 1792, sect. 12, directs that the
standard for all gold coins of the United States, shall be eleven parts fine
to one part of alloy; and sect. 13, that the standard for all silver coins
of the United States, shall be one thousand four hundred and eighty-five
parts fine, to one hundred and seventy-nine parts alloy. 1 Story's L. U. S.
20. By the act of Congress, 18th Feb. 1831, Sec. 8, it is provided, that the
standard for both gold and silver coin of the United States, shall be such,
that of one thousand parts by weight, nine hundred shall be of pure metal,
and one hundred of alloy; and the alloy of the silver coins shall be of
copper, and the alloy of gold coins shall be of copper and silver, provided,
that the silver do not exceed one-half of the whole alloy. See also, Smith's
Wealth of Nations, vol. i., pp. 49, 50.
ALLUVION. The insensible increase of the earth on a shore or bank of a river
by the force of the, water, as by a current or by waves. It is a part of the
definition that the addition, should be so gradual that no one can judge how
much is added at each moment of time. Just. Inst. lib. 2, tit. 1, Sec. 20; 3
Barn. & Cress. 91; Code Civil Annote No. 556. The proprietor of the bank
increased by alluvion is entitled to the addition. Alluvion differs from
avulsion in this: that the latter is sudden and perceptible. See avulsion.
See 3 Mass. 352; Coop. Justin. 458; Lord Raym. 77; 2 Bl. Com. 262, and note
by Chitty; 1 Swift's Dig. 111; Coop. Just. lib. 2, t. 1; Angell on Water
Courses, 219; 3 Mass. R. 352; 1 Gill & Johns. R. 249; Schultes on Aq.
Rights, 116; 2 Amer. Law Journ. 282, 293; Angell on Tide Waters, 213; Inst.
2, 1, 20; Dig. 41, 1, 7; Dig. 39, 2, 9; Dig. 6, 1, 23; Dig. 1, 41, 1, 5; 1
Bouv. Inst. pars 1, c. 1 art. 1, Sec. 4, s. 4, p. 74.
ALLY, international law. A power which has entered into an alliance with
another power. A citizen or subject of one of the powers in alliance, is
sometimes called an ally; for example, the rule which renders it unlawful
for a citizen of the United States to trade or carry on commerce with an
enemy, also precludes an ally from similar intercourse. 4 Rob. Rep. 251; 6
Rob. Rep. 406; Dane's Ab, Index, h.t.; 2 Dall. 15.
ALMANAC. A table or calendar, in which are set down the revolutions of the
seasons, the rising and setting of the sun, the phases of the moon, the most
remarkable conjunctions, positions and phenomena of the heavenly bodies, the
months of the year, the days of the month and week, and a variety of other
matter.
2. The courts will take judicial notice of the almanac; for example,
whether a certain day of the month was on a Sunday or not. Vin. Ab. h.t.; 6
Mod. 41; Cro. Eliz. 227, pl. 12; 12 Vin. Ab. Evidence (A, b, 4.) In dating
instruments, some sects, the Quakers, for example, instead of writing
January, February, March, &c., use the terms, First month, Second month,
Third month, &c., and these are equally valid in such writings. Vide 1
Smith's Laws of Pennsylvania, 217.
ALLODARII, Eng. law, Book of Domesday. Such tenants, who have as large an
estate as a subject can have. 1 Inst. 1; Bac. Ab Tenure, A.
ALMS. In its most extensive sense, this comprehends every species of relief
bestowed upon the poor, and, therefore, including all charities. In a more,
limited sense, it signifies what is given by public authority for the relief
of the poor. Shelford on Mortmain, 802, note (x); 1 Dougl. Election Cas.
370; 2 Id. 107; Heywood on Elections, 263.
ALTA PRODITIO, Eng. law. High treason.
ALTARAGE, eccl. law. Offerings made on the altar; all profits which accrue
to the priest by means of the altar. Ayl. Par. 61; 2 Cro. 516.
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TO ALTER. To change. Alterations are made either in the contract itself, or
in the instrument which is evidence of it. The contract may at any time be
altered with the consent of the parties, and the alteration may be either in
writing or not in writing.
2. It is a general rule that the terms of a contract under seal,
cannot be changed by a parol agreement. Cooke, 500; 3 Blackf. R. 353; 4
Bibb. 1. But it has been decided that an alteration of a contract by
specialty, made by parol, makes it all parol. 2 Watts, 451; 1 Wash. R. 170;
4 Cowen, 564; 3 Harr. & John. 438; 9 Pick. 298; 1 East, R. 619; but see 3
S.& R. 579.
3. When the contract is, in writing, but not under seal, it may be
varied by parol, and the whole will make but one agreement. 9 Cowen, 115;
5.N. H. Rep. 99; 6 Harr. & John, 38; 18 John. 420; 1 John. Cas. 22; 5 Cowen,
606; Pet. C. C. R. 221; 1 Fairf. 414.
4. When the contract is evidenced by a specialty, and it is altered by
parol, the whole will be considered as a parol agreement. 2 Watt 451; 9
Pick. 298. For alteration of instruments see Erasure; Interlineation. See,
generally, 7 Greenl. 76, 121, 394; 15 John. 200; 2 Penna. R. 454.
ALTERATION. An act done upon an instrument in writing by a party entitled
under it, without the consent of the other party, by which its meaning or
language is changed; it imports some fraud or design on the part of him who
made it. This differs from spoliation, which is the mutilation of the
instrument by the act of a stranger.
2. When an alteration has a tendency to mislead, by so changing the
character of the instrument, it renders it void; but if the change has not
such tendency, it will not be considered an alteration. 1 Greenl. Ev. 566.
3. A spoliation, on the contrary, will not affect the legal character
of the instrument, so long as the original writing remains legible; and, if
it be a deed, any trace of the seal remains. 1 Greenl. Ev. Sec. 566. See
Spoliation.
ALTERNAT. The name of a usage among diplomatists by which the rank and
places of different powers, who have the same rights and pretensions to
precedence, are changed from time to time, either in a certain regular
order, or one determined by lot. In drawing up treaties and conventions, for
example, it is the usage of certain powers to alternate, both in the
preamble and the signatures, so that each power occupies, in the copy
intended to be delivered to it, the first place. Wheat. Intern. Law, pt. 2,
c. 3, Sec. 4..
ALTERNATIVE. The one or the other of two things. In contracts a party has
frequently the choice to perform one of several things, as, if he is bound
to pay one hundred dollars, or to deliver a horse, he has the alternative.
Vide Election; Obligation; Alternative.
ALTIUS NON TOLLENDI, civil law. The name of a servitude due by the owner of
a house, by which he is restrained from building beyond a certain height.
Dig. 8, 2, 4, and 1, 12, 17, 25.
ALTIUS TOLLENDI, civil law. The name of a servitude which consists in the
right, to him who is entitled to it, to build his house as high as he may
think proper. In general, however, every one enjoys this privilege, unless
he, is restrained by home contrary title.
ALTO ET BASSO. High and low. This phrase is applied to an agreement made
between two contending parties to submit all matters in dispute, alto et
basso, to arbitration. Cowel.
ALUMNUS, civil law. A child which one has nursed; a foster child. Dig. 40,
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2, 14.
AMALPHITAN CODE. The name given to a collection of sea-laws, complied about
the end of the eleventh century, by the people of Amalphi. It consists of
the laws on maritime subjects which were, or had been, in force in countries
bordering on the Mediterranean; and, on account of its being collected into
one regular system, it was for a long time received as authority in those
countries. 1 Azun. Mar. Law, 376.
AMANUENSIS. One who write another dictates. About the beginning of the sixth
century,, the tabellions (q.v.) were known by this name. 1 Sav. Dr. Rom.
Moy. Age, n. 16.
AMBASSADOR, international law. A public minister sent abroad by some
sovereign state or prince, with a legal commission and authority to transact
business on behalf of his country with the government to which he is sent.
He is a minister of the highest rank, and represents the person of his
sovereign.
2. The United States have always been represented by ministers
plenipotentiary, never having sent a person of the rank of an, ambassador in
the diplomatic sense. 1 Kent's Com. 39, n.
3. Ambassadors, when acknowledged as such, are exempted, absolutely
from all allegiance, and from all responsibility to the laws. If, however,
they should be so regardless of their duty, and of the object of their
privilege, as to insult or openly to attack the laws of the government,
their functions may be suspended by a refusal to treat with them, or
application can be made to their own sovereign for their recall, or they may
be dismissed, and required to depart within a reasonable time. By fiction of
law, an ambassador is considered as if he were out of the territory of the
foreign power; and it is an implied agreement among nations, that the
ambassador, while he resides in the foreign state, shall be considered as a
member of his own country, and the government he represents has exclusive
cognizance of his conduct, and control of his person. The attendants of the
ambassador are attached to his person, and the effects in his use are under
his protection and privilege, and, generally, equally exempt from foreign
jurisdiction.
4. Ambassadors are ordinary or extraordinary. The former designation is
exclusively applied to those sent on permanent missions; the latter, to
those employed on particular or extraordinary occasions, or residing at a
foreign court for an indeterminate period. Vattel, Droit des Gens, 1. 4, c.
6, Sec. 70-79.
5. The act of Congress of April 30th, 1790, s. 25, makes void any writ
or process sued forth or prosecuted against any ambassador authorized and
received by the president of the United States, or any domestic servant of
such ambassador; and the 25th section of the same act, punishes any person
who shall sue forth or prosecute such writ or process, and all attorneys and
soliciters prosecuting or soliciting in such case, and all officers
executing such writ or process, with an imprisonment not exceeding three
years, and a fine at the discretion of the court. The act provides that
citizens or inhabitants of the United States who were indebted when they
went into the service of an ambassador, shall not be protected as to such
debt; and it requires also that the names of such servants shall be
registered in the office of the secretary of state. The 16th section imposes
the like punishment on any person offering violence to the person of an
ambassador or other minister. P Vide 1 Kent, Com. 14, 38, 182; Rutherf.
Inst. b. 2, c. 9; Vatt. b. 4, c. 8, s. 113; 2 Wash. C. C. R. 435; Ayl. Pand.
245; 1 Bl. Com. 253; Bac. Ab. h.t.; 2 Vin. Ab. 286; Grot. lib. 2, c. 8, 1,
3; 1 Whart. Dig. 382; 2 Id. 314; Dig. l. 50, t. 7; Code I. 10, t. 63, l. 4;
Bouv. Inst. Index, h.t.
6. The British statute 7 Ann, cap. 12; is similar in its provisions; it
extends to the family and servants of an ambassador, as well when they are
the natives of the country in which the ambassador resides, as when they are
foreigners whom he brings with him. (3 Burr. 1776-7) To constitute a
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domestic servant within the meaning of the statute, it is not necessary that
the servant should lodge, at night in the house of the ambassador, but it is
necessary to show the nature of the service he renders and the actual
performance of it. 3 Burr. 1731; Cases Temp. Hardw. 5. He must, in fact,
prove that he is bona fide the ambassador's servant. A land waiter at the
custom house is not such, nor entitled to the privilege of the statute. 1
Burr. 401. A trader is not entitled to the protection of the statute. 3
Burr. 1731; Cases Temp. Hardw. 5. A person in debt cannot be taken into an
ambassador's service in order to protect him. 3 Burr. 1677.
AMBIDEXTER. It is intended by this Latin word, to designate one who plays on
both sides; in a legal sense it is taken for a juror or embraceor who takes
money from the parties for giving his verdict. This is seldom or never done
in the United States.
AMBIGUITY, contracts, construction. When au expression has been used in an
instrument of writing which may be understood in more than one sense, it is
said there is an ambiguity,
2. There are two sorts of ambiguities of words, ambiguitas latens and
ambiguitas patens.
3. The first occurs when the deed or instrument is sufficiently certain
and free from ambiguity, but the ambiguity is produced by something
extrinsic, or some collateral matter out of the instrument; for example, if
a man devise property to his cousin A B, and he has two cousins of that
name, in such case parol evidence will be received to explain the ambiguity.
4. The second or patent ambiguity occurs when a clause in a deed, will,
or other instrument, is so defectively expressed, that a court of law, which
has to put a construction on the instrument, is unable to collect the
intention of the party. In such case, evidence of the declaration of the
party cannot be submitted to explain his intention, and the clause will be
void for its uncertainty. In Pennsylvania, this rule is somewhat qualified.
3 Binn. 587; 4 Binn. 482. Vide generally, Bac. Max. Reg. 23; 1 Phu. Ev. 410
to 420; 3 Stark. Ev. 1021 ; I Com. Dig. 575; Sudg. Vend. 113. The civil law
on this subject will be found in Dig. lib. 50, t. 17, 1. 67; lib. 45, t. 1,
1. 8; and lib. 22, t. 1, 1. 4.
AMBULATORIA VOLUNTAS. A phrase used to designate that a man has the power to
alter his will or testament as long as he lives. This form of phrase
frequently occurs in writers on the civil law; as ambulatoria res,
ambulatoria actio, potestas, conditio, &c. Calvini Lexic.
AMENABLE. Responsible; subject to answer in a court of justice liable to
punishment.
AMENDE HONORABLE, English law. A penalty imposed upon a person by way of
disgrace or infamy, as a punishment for any offence, or for the purpose of
making reparation for any injury done to another, as the walking into church
in a white sheet, with a rope about the neck, and a torch in the hand, and
begging the pardon of God, or the king, or any private individual, for some
delinquency.
2. A punishment somewhat similar to this, and which bore the same
name, was common in France; it was abolished by the law of the 25th of
September, 1791. Merlin Rep. de Jur. h.'t.
3. For the form of a sentence of amende horrorable, see D'Agaesseau,
Oeuvres, 43 Plaidoyer, tom. 4, p. 246.
AMENDMENT, legislation. An alteration or change of something proposed in a
bill.
2. Either house of the legislature has a right to make amendments; but,
when so made, they must be sanctioned by the other house before they can
become a law. The senate has no power to originate any money bills, (q. v,)
but may propose and make amendments to such as have passed the House of
representatives. Vide Congress; Senate.
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3. The constitution of the United States, art. 5, and the constitutions
of some of the states, provide for their amendment. The provisions contained
in tho constitution of the United States, are as follows: "Congress,
whenever two-thirds of both houses shall deem it necessary, shall propose
amendments to this constitution, or, on the application of the legislatures
of two-thirds of the several states, shall call a convention for proposing
amendments, which, in either case, shall be valid, to all intents and
purposes, as part of this constitution, when ratified by the legislatures of
three-fourths of the several states, or by conventions in three-fourths
thereof, as the one or the other mode of ratification may be proposed by
Congress: Provided, that no amendment which may be made prior to the year
one thousand eight hundred and eight, shall, in any manner, affect the first
and fourth clauses in the ninth section of the first article; and that no
state, without its consent, shall be deprived of its equal suffrage in the
Senate."
AMENDMENT, practice. The correction, by allowance of the court, of an error
committed in the progress of a cause.
2. Amendments at common law, independently of any statutory provision
on the subject, are in all cases in the discretion of the court, for the
furtherance of justice they may be made while the proceedings are in paper,
that is, until judgment is signed, and during the term in which it is
signed; for until the end of the term the proceedings are considered in
fieri, and consequently subject to the control of the court; 2 Burr. 756; 3
Bl. Com. 407; 1 Salk. 47; 2 Salk. 666 ; 8 Salk. 31; Co. Litt. 260; and even
after judgment is signed, and up to the latest period of the action,
amendment is, in most cases, allowable at the discretion of the court under
certain statutes passed for allowing amendments of the record; and in later
times the judges have been much more liberal than formerly, in the exercise
of this discretion. 3 McLean, 379; 1 Branch, 437; 9 Ala. 647. They may,
however, be made after the term, although formerly the rule was otherwise;
Co. Litt. 260, a; 3 Bl. Com. 407; and even after error brought, where there
has been a verdict in a civil or criminal case. 2 Serg. & R. 432, 3. A
remittitur damna may be allowed after error; 2 Dall. 184; 1 Yeates, 186;
Addis, 115, 116; and this, although error be brought on the ground of the
excess of damages remitted. 2 Serg. & R. 221. But the application must be
made for the remittitur in the court below, as the court of error must take
the record as they find it. 1 Serg. & R. 49. So, the death of the defendant
may be suggested after errer coram nobis. 1 Bin. 486; I Johns. Cases, 29;
Caines' Cases, 61. So by agreement of attorneys, the record may be amended
after error. 1 Bin. 75; 2 Binn. 169.
3. Amendments are, however, always limited by due consideration of the
rights of the opposite party; and, when by the amendment he would be
prejudiced or exposed to unreasonable delay, it is not allowed. Vide Bac. Ab
Com. Dig. h.t.; Viner's. Ab. h.t.; 2 Arch. Pr. 200; Grah. Pt. 524; Steph.
Pl. 97; 2 Sell. Pr. 453; 3 Bl. Com. 406; Bouv. Inst. Index, h.t.
AMENDS. A satisfaction, given by a wrong doer to the party injured for a
wrong committed. 1 Lilly's Reg. 81.
2. By statute 24 Geo. II. c. 44, in England, and by similar statutes in
some of the United States, justices of the peace, upon being notified of an
intended suit against them, may tender amends fore the wrong alleged or done
by them in their official character, and if found sufficient, the tender
debars the action. See Act of Penn. 21 March, 1772, Sec. 1 and.2; Willes'
Rep. 671, 2; 6 Bin. 83; 5 Serg. & R. 517, 299; 3 Id. 295; 4 Bin. 20.
AMERCEMENT, practice. A pecuniary penalty imposed upon a person who is in
misericordia; as, for example, when the defendant se retaxit, or recessit in
contemptum curioe. 8 Co. 58; Bar. Ab. Fines and Amercements. By the common
law, none can be amerced in his absence, except for his default. Non licet
aliquem in sua absentia amerciare nisi per ejus defaltas. Fleta, lib. 2,
cap. 65, Sec. 15.
2. Formerly, if the sheriff failed in obeying the writs, rules, or
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orders of the court, he might be amerced; that is, a penalty might be
imposed upon him; but this practice has been superseded by attachment. In
New Jersey and Ohio, the sheriff may, by statutory provision, be amerced for
making a return contrary to the provision of the statute. Coxe, 136, 169; 6
Halst. 334; 3 Halst. 270, 271; 5 Halst. 319; 1 Green, 159, 341; 2 Green,
350; 2 South. 433; 1 Ham. 275; 2 Ham. 603; 6 Ham. 452; Wright, 720.
AMERCIAMENT, AMERCEMENT, English law. A pecuniary punishment arbitrarily
imposed by some lord or count, in distinction from a fine which is expressed
according to the statute. Kitch. 78. Amerciament royal, when the amerciament
is made by the sheriff, or any other officer of the king. 4 Bl. Com. 372.
AMI. A friend; or, as it is written in old works, amy. Vide Prochein amy.
AMICABLE ACTION, Pennsylvania practice. An action entered by agreement of
parties on the dockets of the courts; when entered, such action is
considered as if it, had been adversely commenced, and the defendant had
been regularly summoned. An amicable action may be entered by attorney,
independently of the provisions of the act of 1866. 8 Er & R. 567.
AMICUS CURIAE, practice. A friend of the court. One, who as a stander by,
when a judge is doubtful or mistaken in a matter of law, may inform the
court. 2 Inst. 178; 2 Vin. Abr. 475; and any one, as amicus curia, may make
an application to the court in favor of an infant, though he be no relation.
1 Ves. Sen. 313.
AMITA. A paternal aunt; the sister of one's father. Inst. 3, 6, 3.
compared.
2. To reason analogically, is to draw conclusions based on this
similitude of relations, on the resemblance, or the connexion which is
perceived between the objects compared. "It is this guide," says Toollier,
which leads the law lawgiver, like other men, without his observing it. It
is analogy which induces us, with reason, to suppose that, following the
example of the Creator of the universe, the lawgiver has established general
and uniform laws, which it is unnecessary to repeat in all analogous cases."
Dr. Civ. Fr. liv. 3, t. 1, c. 1. Vide Ang. on Adv. Enjoym. 30, 31; Hale's
Com. Law, 141.
3. Analogy has been declared to be an argument or guide in forming
legal judgments, and is very commonly a ground of such judgments. 7 Barn. &
Cres. 168; 3 Bing. R. 265; 8 Bing R. 557, 563; 3 Atk. 313; 1 Eden's R. 212;
1 W. Bl. 151; 6 Ves. jr. 675, 676; 3 Swanst. R. 561; 1 Turn. & R. 103, 338;
1 R. & M. 352, 475, 477; 4 Burr. R. 1962; 2022, 2068; 4 T. R. 591; 4 Barn. &
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Cr. 855; 7 Dowl. & Ry. 251; Cas. t. Talb. 140; 3 P. Wms. 391; 3 Bro. C. C.
639, n.
ANCIENT. Something old, which by age alone has acquired some force; as
ancient lights, ancient writings.
ANCIENT DEMESNE, Eng. law. Those lands which either were reserved to the
crown at the original distribution of landed property, or such as came to it
afterwards, by forfeiture or other means. 1. Sal. 57; hob. 88; 4 Inst. 264;
1 Bl. Com. 286; Bac. Ab. h.t.; F. N. B. 14.
ANCIENT LIGHTS, estates. Windows which have been opened for twenty years or
more, and enjoyed without molestation by the owner of the house. 5 Har. &
John. 477; 12 Mass. R. 157,.220.
2. It is proposed to consider, 1. How the right of ancient light is
gained. 2, What amounts to interruption of an ancient light. 3, The remedy
for obstructing an ancient light.
3.-1. How the right of opening or keeping a window open is gained. 1.
By grant. 2. By lapse of time. Formerly it was holden that a party could not
maintain an action for a nuisance to an ancient light, unless he had gained
a right to the window by prescription. 1 Leon. 188; Cro. Eliz. 118. But the
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modern doctrine is, that upon proof of an adverse enjoyment of light; for
twenty years or upwards, unexplained, a jury may be directed to presume a
right by grant, or otherwise. 2 Saund. 176, a; 12 Mass. 159; 1 Esp. R. 148.
See also 1 Bos. & Pull. 400.; 3 East, 299; Phil. Ev. 126; 11 East, 372; Esp.
Dig. 636. But if the window was opened during the seisin of a mere tenant
for life, or a tenancy for years, and the owner in fee did not acquiesce in,
or know of, the use of the light, he would not be bound. 11 East, 372; 3
Camp. 444; 4 Camp. 616. If the owner of a close builds a house upon one half
of it, with a window lighted from the other half, he cannot obstruct lights
on the premises granted by him; and in such case no lapse of time necessary
to confirm the grantee's right to enjoy them. 1 Vent. 237, 289; 1 Lev. 122;
1 Keb. 553; Sid. 167, 227; L. Raym. 87; 6 Mod. 116; 1 Price, 27; 12 Mass.
159, Rep. 24; 2 Saund. 114, n. 4; Hamm. N. P. 202; Selw. N. P. 1090; Com.
Dig. Action on the Case for a Nuisance, A. Where a building has been used
twenty years to one purpose, (as a malt house,) and it is converted to
another, (as a dwelling-house,) it is entitled in its new state only to the
same degree of light which was necessary in its former state. 1 Campb. 322;
and see 3 Campb. 80. It has been justly remarked, that the English doctrine
as to ancient lights can hardly be regarded as applicable to narrow lots in
the new and growing cities of this country; for the effect of the rule would
be greatly to impair the value of vacant lots, or those having low buildings
upon them, in the neighborhood of other buildings more than twenty years
old. 3 Kent, Com. 446, n.
4.-2. What amounts to an interruption of an ancient light. Where a
window has been completely blocked up for twenty years, it loses its
privilege. 3 Camp. 514. An abandonment of the right by express agreement, or
by acts from which an abandonment may be inferred, will deprive the party
having such ancient light of his right to it. The building of a blank wall
where the lights formerly existed, would have that effect. 3 B. & Cr. 332.
See Ad. & Ell. 325.
5.-3. Of the remedy for interrupting an ancient light. 1. An action
on the case will lie against a person who obstructs an ancient light. 9 Co.
58; 2 Rolle's Abr. 140, 1. Nusans, G 10. And see Bac. Ab. Actions on the
Case, D; Carth. 454; Comb. 481; 6 Mod. 116.
6. Total deprivation of light is not necessary to sustain this action,
and if the party cannot enjoy the light in so free and ample a manner as he
did before, he may sustain the action; but there should be some sensible
diminution of the light and air. 4. Esp. R. 69. The building a wall which
merely obstructs the right, is not actionable. 9 Ca. 58, b; 1 Mod. 55.
7.-4. Nor is the opening windows and destroying, the privacy of the
adjoining property; but such new window may be immediately obstructed to
prevent a right to it being acquired by twenty years use. 3 Campb. 82.
8.-5. When the right is clearly established, courts of equity will
grant an injunction to restrain a party from building so near the
plaintiff's house as to darken his windows. 2 Vern. 646; 2 Bro. C. C. 65; 16
Ves. 338; Eden on Inj. 268, 9; 1 Story on Eq Sec. 926; 1 Smith's Chan. Pr.
593.; 4 Simm. 559; 2 Russ. R. 121. See Injunction; Plan.
See generally on this subject, 1 Nels. Abr. 56, 7; 16 Vin. Abr. 26; 1
Leigh's N. P. C. 6, s. 8, p. 558; 12 E. C. L. R. 218; 24 Id. 401; 21 Id.
373; 1 id. 161; 10 Id. 99; 28 Id. 143; 23 Am. Jur. 46 to 64; 3 Kent, Com.
446, 2d ed. 7 Wheat. R. 106; 19 Wend. R. 309; Math on Pres. 318 to 323; 2
Watts, 331; 9 Bing. 305; 1 Chit. Pr. 206, 208; 2 Bouv. Inst. n. 1619-23.
ANCIENT WRITINGS, evidence. Deeds, wills, and other writings more than
thirty years old, are considered ancient writings. They may in general be
read in evidence, without any other proof of their execution than that they
have been in the possession of those claiming rights under them. Tr. per
Pais, 370; 7 East, R. 279; 4 Esp. R. 1; 9 Ves. Jr. 5; 3 John. R. 292; 1 Esp.
R. 275; 5 T. R. 259; 2 T. R. 466; 2 Day's R. 280. But in the case of deeds,
possession must have accompanied them. Plowd. 6, 7. See Blath. Pres. 271, n.
(2.)
ANCIENTLY, English law. A term for eldership or seniority used in the
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statute of Ireland, 14 Hen. Vni.
ANCIENTS, English law. A term for gentlemen in the Inns of Courts who are of
a certain standing. In the Middle Temple, all who have passed their readings
are termed ancients. In Gray's Inn, the ancients are the oldest barristers;
besides which the society consists of benchers, barristers and students. In
the Inas of Chancery, it consists of ancients, and students or clerks.
ANCILLARY. That which is subordinate on, or is. subordinate to, some other
decision. Encyc. Lond. 1
ANDROLEPSY. The taking by one nation of the citizens or subjects of another,
in order to compel the latter to do justice to the former. Wolff. Sec. 1164;
Molloy, de Jure Mar. 26.
ANGEL. An ancient English coin of the value of ten shillings sterling. Jac.
L. D. h.t.
ANIENS. In some of our law books signifies void, of no force. F. N. B. 214.
ANIMAL, property. A name given to every animated being endowed with the
power of voluntary motion. In law, it signifies all animals except those of
the him, in species.
2. Animals are distinguished into such as are domitae, and such as are
ferae naturae.
3. It is laid down, that in tame or domestic animals, such as horse,
swine, sheep, poultry, and the like, a man may have an absolute property,
because they continue perpetually in his possession and occupation, and will
not stray from his house and person unless by accident or fraudulent
enticement, in either of which cases the owner does not lose his property. 2
Bl. Com. 390; 2 Mod. 319. 1.
4. But in animals ferae naturae, a man can have no absolute property;
they belong to him only while they continue in his keeping or actual
possession; for if at any they regain their natural liberty, his property
instantly ceases, unless they have animum revertendi, which is only to be
known by their usual habit of returning. 2 Bl. Com. 396; 3 Binn. 546; Bro.
Ab. Propertie, 37; Com. Dig. Biens, F; 7 Co. 17 b; 1 Ch. Pr. 87; Inst. 2, 1,
15. See also 3 Caines' Rep. 175; Coop. Justin. 457, 458; 7 Johns. Rep. 16;
Bro. Ab. Detinue, 44.
5. The owner of a mischievous animal, known to him to be so, is
responsible, when he permits him to go at large, for the damages he may do.
2 Esp. Cas. 482; 4 Campb. 198; 1 Starkie's Cas. 285; 1 Holt, 617; 2
Str.1264; Lord Raym. 110; B. N. P. 77; 1 B. & A. 620; 2 C. M.& R. 496; 5 C.&
P. 1; S. C. 24 E. C. L. R. 187. This principle agrees with the civil law.
Domat, Lois Civ. liv. 2, t. 8, s. 2. And any person may justify the killing
of such ferocious animals. 9 Johns. 233; 10. Johns. 365; 13 Johns. 312. The
owner, of such an animal may be indicted for a common nuisance. 1 Russ. Ch.
Cr. Law, 643; Burn's Just., Nuisance, 1.
6. In Louisiana, the owner of an animal is answerable for the damage he
may cause; but if the animal be lost, or has strayed more than a day, he may
discharge himself from this responsibility, by abandoning him to the person
who has sustained the injury; except where the master turns loose a
dangerous or noxious animal; for then he must pay all the harm done, without
being allowed to make the abandonment. Civ. Code, art. 2301. See Bouv. Inst.
Index, h.t.
ANIMALS OF A BASE NATURE. Those which, though they may be reclaimed, are
not Such that at common law a larceny may be committed of them, by reason of
the baseness of their nature. Some animals, which are now usually tamed,
come within this class; as dogs and cats; and others which, though wild by
nature, and oftener reclaimed by art and industry, clearly fall within the
same rule; as, bears, foxes, apes, monkeys, ferrets, and the like. 3 Inst.
109,; 1 Hale, P. C. 511, 512; 1 Hawk. P. C. 33, s. 36; 4 Bl. Com. 236; 2
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East, P. C. 614. See 1 Saund. Rep. 84, note 2.
ANIMUS. The intent; the mind with which a thing is done, as animus
cancellandi, the intention of cancelling; animus farandi, the intention of
stealing; animus maiaendi, the intention of remaining; animus morandi, the
intention or purpose of delaying.
2. Whether the act of a man, when in appearance criminal, be so or not,
depends upon the intention with which it was done. Vide Intention.
ANIMUS CANCELLANDI. An intention to destroy or cancel. The least tearing of
a will by a testator, animus cancellandi, renders it invalid. See
Cancellation.
ANN, Scotch law. Half a year's stipend over and above what is owing for the
incumbency due to a minister's relict, or child, or next of kin, after his
decease. Wishaw. Also, an abbreviation of annus, year; also of annates. In
the old law French writers, ann or rather an, signifies a year. Co. Dig h.v.
ANNATES, ecc. law. First fruits paid out of spiritual benefices to the pope,
being, the value of one year's profit.
ANNI NUBILES. The age at which a girl becomes by law fit for marriage, which
is twelve years.
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ANNIENTED. From the French aneantir; abrogated or made null. Litt. sect.
741.
ANNO DOMINI, in the year of our Lord, abbreviated, A. D. The computation of
time from the incarnation of our Saviour which is used as the date of all
public deeds in the United States and Christian countries, on which account
it is called the "vulgar vera."
ANNONAE CIVILES, civil law. A species of rent issuing out of certain lands,
which were paid to Rome monasteries.
ANNOTATION, civil law. The designation of a place of deportation. Dig. 32,
1, 3 or the summoning of an, absentee. Dig. lib. 5.
2. In another sense, annotations were the answers of the prince to
questions put to him by private persons respecting some doubtful point of
law. See Rescript.
ANNUAL PENSION, Scotch law. Annual rent. A yearly profit due to a creditor
by way of interest for a given sum of money. Right of annual rent, the
original right of burdening land with payment yearly for the payment of
money.
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APPENDITIA. From appendo, to hang at or on; the appendages or pertinances of
an estate the appurtenances to a dwelling, &c.; thus penthouses, are the
appenditia domus, &c.
APPLICATION. The act of making a request for something; the paper on which
the request is written is also called an application; as, an application to
chancery for leave to invest trust funds; an application to an insurance
company for insurance. In the land law of Pennsylvania, an application is
understood to be a request in writing to have a certain quantity of land at
or near a certain place therein mentioned. 3 Binn. 21; 5 Id. 151; Jones on
Land Office Titles, 24.
2. An application for insurance ought to state the facts truly as to
the object to be insured, for if any false representation be made with a
fraudulent intent, it will avoid the policy. 7 Wend. 72.
3. By application is also meant the use or disposition of a thing; as
the application of purchase money.
4. In some cases a purchaser who buys trust property is required, to
see to the application of thee purchase money, and if be neglects to do so,
and it be misapplied, he will be considered as a trustee of the property he
has so purchased. The subject will be examined by considering, 1, the kind
of property to be sold; 2, the cases where the purchaser is bound to see to
the application of the purchase money in consequence of the wording of the
deed of trust.
5.-1. Personal property is liable, in the hands of the executor, for
the payment of debts, and the purchaser is therefore exempted from seeing to
the application of the purchase money, although it may have been bequeathed
to be sold for the payment of debts. 1 Cox, R. 145; 2 Dick. 725; 7 John. Ch.
Rep., 150, 160; 11 S. & R. 377, 385; 2 P. Wms. 148; 4 Bro. C. C. 136;
White's L. C. in Eq. 54; 4 Bouv. Inst. n. 3946.
6. With regard to real estate, which is not a fund at law for the
payment of debt's, except where it is made so by act of assembly, or by
direction in the will of the testator or deed of trust, the purchaser from
an executor or trustee may be liable for the application of the purchase
money. And it will now be proper to consider the cases where such liability
exists.
7.-2. Upon the sale of real estate, a trustee in whom the legal title
is vested, can it law give a valid discharge for the purchase money, because
he is the owner at law. In equity, on the contrary, the persons among whom
the produce of the sale is to be distributed are considered the owners; and
a purchaser must obtain a discharge from them, unless the power of giving
receipts is either expressly or by implication given to the trustees to,
give receipts for the purchase money. It is, for this reason, usual to
provide in wills and trust deeds that the purchaser shall not be required to
see to the application of the purchase money.
APPOINTEE. A person who is appointed or selected for a particular purpose;
as the appointee under a power, is the person who is to receive the benefit
of the trust or power.
APPOINTOR. One authorized by the donor under the statute of uses, to execute
a power. 2 Bouv. Ins. n. 1923.
APPOINTMENT, chancery practice. The act of a person authorized by a will or
other instrument to direct how trust property shall be disposed of,
directing such disposition agreeably to the general directions of the trust.
2. The appointment must be made in such a manner as to come within the
spirit of the power. And although at law the rule only requires that some
allotment, however small, shall be given to each person, when the power is
to appoint to and among several persons; the rule in equity differs, and
requires a real and substantial portion to each, and a mere nominal
allotment to one is deemed illusory and fraudulent. When the distribution is
left to discretion, without any prescribed rule, Is to such of the children
as the trustee shall think proper, he may appoint to one only; 5 Ves. 857;
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but if the words be, 'amongst' the children as he should think proper, each
must have a share, and the doctrine of illusory appointment applies. 4 Ves.
771 Prec. Ch. 256; 2 Vern. 513. Vide, generally, 1 Supp. to Ves. Jr. 40, 95,
201, 235, 237; 2 Id. 1 27; 1 Vern. 67, n.; 1 Ves. Jr. 31 0, n.; 4 Kent, Com.
337; Sugd. on Pow. Index, h.t.; 2 Hill. Ab. Index, h.t.; 2 Bouv. Inst. n.
1921, et seq.
APPOINTMENT, government, wills. The act by which a person is selected and
invested with an office; as the appointment of a judge, of which the making
out of his commission is conclusive evidence. 1 Cranch, 137, 155; 10 Pet.
343. The appointment of an executor, which is done by nominating him as such
in a will or testament.
2. By appointment is also understood a public employment, nearly
synonymous with office. The distinction is this, that the term appointment
is of a more extensive signification than office; for example, the act of
authorizing a man to print the laws of the United States by authority, and
the right conveyed by such an act, is an appointment, but the right thus
conveyed is not an office. 17 S. & R. 219, 233. See 3 S. & R. 157; Coop.
Just. 599, 604.
APPORTIONMENT, contracts. Lord Coke defines it to be a division or partition
of a rent, common, or the like, or the making it into parts. Co. Litt. 147.
This definition seems incomplete. Apportionment frequently denotes, not,
division, but distribution ; and in its ordinary technical sense, the
distribution of one subject in proportion to another previously distributed.
1 Swanst. C. 87, n.
2. Apportionment will here be considered only in relation to contracts,
by talking a view, 1, of such as are purely personal and, 2, of such as
relate to the realty.
3.-1. When a Purely personal contract is entire and not divisible in
its nature, it is manifest it cannot be apportioned; as when the subject of
the contract is but one thing, and there is but one creditor and one debtor,
neither can apportion the obligation without the consent of the other. In
such case the creditor cannot force his debtor to pay him a part of his debt
only, and leave the other part unpaid, nor can the debtor compel his
creditor to receive a part only of what is due to him on account of his
claim. Nor can the assignee of a part sustain an action for such part. 5 N.
S. 192.
4. When there is a special contract between the parties, in general no
compensation can be received unless the whole contract has been actually
fulfilled. 4 Greenl. 454; 2 Pick. R. 267; 10 Pick. R. 209; 4 Pick. R. 103; 4
M'Cord, R. 26, 246; 6 Verm. R. 35. The subject of the contract being a
complex event, constituted by the performance of various acts, the imperfect
completion of the event, by the performance of only some of those acts,
cannot, by virtue of that contract, of which it is not the subject, afford a
title to the whole, or any part of the stipulated benefit. See 1 Swanst. C.
338, n. and the cases there cited; Story, Bailm. Sec. 441; Chit. Contr. 168;
3 Watts, 331; 2 Mass. 147, 436; 3 Hen. & Munf. 407; 2 John. Cas. 17; 13
John. R. 365; 11 Wend. 257; 7 Cowen, 184; 8 Cowen, 84; 2 Pick. 332. See
generally on the subject of the apportionment, of personal obligations, 16
Vin. Ab. 138; 22 Vin. Ab. 13; Stark. Ev. part 4, p. 1622; Com. Dig.
Chancery, 2 E and 4 N 5; 3 Chit. Com. Law 129; Newl. Contr. 159; Long on
Sales, 108. And for the doctrine of the civil law, see Dumoulin, de dividuo
et individuo, part 2, n. 6, 7; Toull. Dr. Civ. Fr. liv. 3, tit 3, c. 4, n.
750, et seq.
5.-2. With regard to rents, the law is different. Rents may in
general be apportioned, and this may take place in several ways; first, by
the act of the landlord or reversioner alone, and secondly, by virtue of the
statute of 11 Geo. II., c. 19, s. 15, or by statutes in the several states
in which its principles have been embodied.
6.-1. When there is a subsisting obligation on the part of the tenant
to pay a certain rent, the reversioner may sell his estate in different
parts, to as many persons as he may deem proper, and the lessee or tenant
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will be bound to pay to each a proportion of the rent. 3 Watts, 404; 3 Kent
Com. 470, 3d. ed.; Co. Litt. 158 a; Gilb. on Rents, 173; 7 Car. 23; 13 Co.
57 Cro. Eliz. 637, 651; Archb. L. &. T. 172 5 B. & A. 876; 6 Halst. 262. It
is usual for the owners of the reversion to agree among themselves as to the
amount which each is to receive; but when there is no agreement, the rent
will be apportioned by the jury. 3 Kent, Com. 470; 1 Bouv. Inst. n. 697.
7.-2. Rent may be apportioned as to time by virtue of the stat. 11
Geo. H., C. 19, s. 15, by which it is provided that the rent due by a tenant
for life, who dies during the currency of a quarter, of a year, or other
division of time at which the rent was made payable, shall be apportioned to
the day of his death. In Delaware, Missouri, New Jersey, and New York, it is
provided by statutes, that if the tenant for life, lessor, die on the rent
day, his executors may recover the whole rent; if before, a proportional
part. In Delaware, Kentucky, Missouri, and New York, when one is entitled to
rents, depending on the life of another, he may recover them notwithstanding
the death of the latter. In Delaware, Kentucky, Missouri, and Virginia, it
is specially provided, that the husband, after the death of his wife, may
recover the rents of her lands. 1 Hill. Ab. c. 16, Sec. 50. In Kentucky, the
rent is to be apportioned when the lease is determined upon any contingency.
8. When the tenant is deprived of the land, as by eviction, by title
paramount, or by quitting the premises with the landlord's consent, in the
absence of any agreement to the contrary, his obligation to pay rent ceases,
as regards the current quarter or half year, or other day of payment, as the
case may be. But rent which is due may be recovered. Gilb. on Rents, 145; 3
Kent, Comm. 376; 4 Wend. 423; 8 Cowen, 727 1 Har. & Gill, 308; 11 Mass. 493.
See 4 Cruise's Dig. 206; 3 Call's R. 268; 4 M'Cord 447; 1 Bailey's R. 469; 2
Bouv. Inst. n. 1675, et seq.
APPOSAL OF SHERIFFS, English law. The charging them with money received upon
account of the Exchequer. 22 Car. II.
APPOSER, Eng. law. An officer of the Court of Exchequer, called the foreign
apposer.
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APPROBATE AND REPROBATE. In Scotland this term is used to signify to approve
and reject. It is a maxim quod approbo non reprobo. For example, if a
testator give his property to A, and give A's property to B, A shall not be
at liberty to approve of the will so far as the legacy is given to him, and
reject it as to the bequest of his property to B in other words, he cannot
approve and reject the will. 1 Bligh. 21; 1 Bell's Com. 146.
APPROPRIATION, contracts. The application of the payment of a sum of money,
made by a debtor to his creditor, to one of several debts.
2. When a voluntary payment is made, the law permits the debtor in the
first place, or, if he make no choice, then it allows the creditor to make
an appropriation of such payment to either of several debts which are due by
the debtor to the creditor. And if neither make an appropriation, then the
law makes the application of such payment. This rule does not apply to
payments made under compulsory process of law. 10 Pick. 129. It will be
proper to consider, 1, when the debtor may make the appropriation; 2, when
the creditor may make it; 3, when it will be made by law.
3.-1. In general the appropriation may be made by the debtor, but
this must be done by his express declaration, or by circumstances from which
his intentions can be inferred. 2 C. M. & R. 723; 14 East, 239; 1 Tyrw. &
Gr. 137; 15 Wend. 19; 5 Taunt. 7 Wheat. 13; 2 Ear. & Gill, 159; S. C. 4 Gill
& Johns. 361; 1 Bibb, 334; 5 Watts, 544; 12 Pick. 463; 20 Pick. 441; 2
Bailey, 617; 4 Mass. 692; 17 Mass. 575. This appropriation, it seems, must
be notified to the creditor at the time; for an entry made by the debtor in
his own books, is not alone sufficient to determine the application of the
payment. 2 Vern. 606; 4 B. & C. 715. In some cases, in consequence of the
circumstances, the presumption will be that the payment was made on account
of one debt, in preference to another. 3 Caines, 14; 2 Stark. R. 101. And in
some cases the debtor has no right to make the appropriation, as, for
example, to apply 4 partial payment to the liquidation of the principal,
when interest is due. 1 Dall. 124; 1 H. & J. 754; 2 N. & M'C. 395; 1 Pick.
194; 17 Mass. 417.
4.-2. When the debtor has neglected to make an appropriation, the
creditor may, in general, make it, but this is subject to some exceptions.
If, for example, the debtor owes a debt as executor, and one in his own
right, the creditor cannot appropriate a payment to the liquidation of the
former, because that may depend on the question of assets. 2 Str. 1194. See
1 M. & Malk. 40; 9 Cowen, 409; 2 Stark. R. 74; 1 C. & Mees. 33.
5. Though it is not clearly settled in England whether a creditor is
bound to make the appropriation immediately, or at a subsequent time Ellis
on D. and C. 406-408 yet in the United States, the right to make the
application at any time has been recognized, and the creditor is not bound
to make an immediate election. 4 Cranch, 317; 9 Cowen, 420, 436. See 12 S. &
R. 301 2 B. & C. 65; 2 Verm. 283; 10 Conn. 176.
6. When once made, the appropriation cannot be changed; and, rendering
an account, or bringing suit and declaring in a particular way, is evidence
of such appropriation. 1 Wash. 128 3 Green. 314; 12
ARGUMENT LIST. A list of cases put down for the argument of some point of
law.
ARGUMENTATIVENESS. What is used by way of reasoning in pleading is so
called.
2. It is a rule that pleadings must not be argumentative. For example,
when a defendant is sued for taking away the goods of the plaintiff, he must
not plead that "the plaintiff never had any goods," because although this
may be an infallible argument it is not a good plea. The plea should be not
guilty. Com. Dig. Pleader R 3; Dougl. 60; Co. Litt. 126 a.
ARGUMENTUM AB INCONVENIENTI. An argument arising from the inconvenience
which the construction of the law would create, is to have effect only in a
case where the law is doubtful where the law is certain, such an argument is
of no force. Bac. Ab. Baron and Feme, H.
ARISTOCRACY. That form of government in which the sovereign power is
exercised by a small number of persons to the exclusion of the remainder of
the people.
ARISTODEMOCRACY. A form of government where the power is divided between the
great men of the nation and the people.
ARKANSAS. The name of one of the new states of the United States. It was
admitted into the Union by the act of congress of June 15th, 1836, 4 Sharsw.
cont. of Story's L. U. S. 2444, by which it is declared that the state of
Arkansas shall be one, and is hereby declared to be one of the United States
of America, and admitted into the Union on an equal footing with the
original states in all respects whatever.
2. A convention assembled at Little Rock, on Monday, the 4th day of
January, 1836, for the purpose of forming a constitution, by which it is
declared that "We, the people of the Territory of Arkansas, by our
representatives in convention assembled, in order to secure to ourselves and
our posterity the enjoyments of all the rights of life, liberty and
property, and the free pursuit of happiness do mutually agree with each
other to form ourselves into a free and independent state, by the name and
style of `The State of Arkansas.'" The constitution was finally adopted on
the 30th day of January, 1836.
3. The powers of the government are divided into three departments;
each of them is confided to a separate body of magistry, to wit; those which
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are legislative, to one; those which are executive, to another and those
which are judicial, to a third.
4.-1. The legislative authority of the state is vested in a general
assembly, which consists of a senate and house of representatives. Each
house shall appoint its own officers, and shall judge of the qualifications,
returns and elections of its own members. Two-thirds of each shall
constitute a quorum to do business, but a smaller number may adjourn from
day to day, and compel the attendance of absent members, in such manner, and
under such penalties, as each house shall provide. Sect. 15. Each house may
determine the rules of its own proceedings, punish its own members for
disorderly behaviour, and with the concurrence of two-thirds of the members
elected, expel a member; but no member shall be expelled a second time for
the same offence. They shall each from time to time publish a journal of
their proceedings, except such parts as, in their opinion, require secrecy;
and the yeas and nays shall be entered on the journal, at the desire of any
five members. Sect. 16.
5. The doors of each house while in session, or in a committee of the
whole shall be kept open, except in cases which may require secrecy; and
each house may punish by fine and imprisonment, any person, not a member,
who shall be guilty of disrespect to the house, by any disorderly or
contemptuous behaviour in their presence, during, their session; but such
imprisonment shall not extend beyond the final adjournment of that session.
Sect. 17.
6. Bills may originate in either house, and be amended or rejected in
the other and every bill shall be read on three different days in each
house, unless two-thirds of, the house where the same is pending shall
dispense with the rules : and every bill having passed both houses shall be
signed by the president of the senate, and the speaker of the house of
representatives. Sect. 81.
7. Whenever an officer, civil or military, shall be appointed by the
joint concurrent vote of both houses, or by the separate vote of either
house of the general assembly, the vote shall be taken viva voce, and
entered on the journal. Sect. 19.
8. The senators and representatives shall, in all cases except treason,
felony, or breach of the peace, be privileged from arrest, during the
session of the general assembly, and for fifteen days before the
commencement and after the termination of each session; and for any speech
or debate in either house, they shall not be questioned in any other place.
Sect. 20.
9. The members of the general assembly shall severally receive, from
the public treasury, compensation for their services, which may be increased
or diminished; but no alteration of such compensation of members shall take
effect during the session at which it is made. Sect. 21.
10.-1. The senate shall never consist of less than seventeen nor more
than thirty-three members. Art. 4, Sect. 31. The members shall be chosen for
four years, by the qualified electors of the several districts. Art. 4,
Sect. 5. No person shall be a senator who shall not have attained the age of
thirty years; Who shall not be a free white male citizen of the United
States; who shall not have been an inhabitant of this state for one year;
and who shall not, at the time of his election, have an actual residence in
the district he may be chosen to represent. Art. 4, Sect. 6.
11. All impeachments shall be tried by the senate; and when sitting for
that purpose, the senators shall be on oath or affirmation to do justice
according to law and evidence. When the governor shall be tried, the chief
justice of the supreme court shall preside; and no person shall be convicted
without the concurrence of two-thirds of the senators elected. Art. 4, Sect.
27.
12.-2. The house of representatives shall consist of not less than
fifty-four, nor more than one hundred representatives, to be apportioned
among the several counties in this state, according to the number of free
white male inhabitants therein, taking five hundred as the ratio, until the
number of representatives amounts to seventy-five; and when they amount to
seventy-five, they shall not be further increased until the population of
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the state amounts to five hundred thousand souls. Provided that each county
now organized shall, although its population may not give the existing
ratio, always be entitled to one representative. The members are chosen
every second year, by the qualified electors of the several counties. Art.
4, Sect. 2.
13. The qualification of an elector is as follows: he must 1, be a free,
white male citizen of the United States; 2, have attained the age of twenty-
one years; 3, have been a citizen of this state six months; 4, be must
actually reside in the county, or district where he votes for an office made
elective under this state or the United States. But no soldier, seaman, or
marine, in the army of the United States, shall be entitled to vote at any
election within this state. Art. 4, Sect. 2.
14. No person shall be a member of the house of representatives, who
shall not have attained the age of twenty-five years; who shall not be a
free, white male citizen of the United States; who shall not have been an
inhabitant of this state one year; and who shall not, at the time of his
election, have an, actual residence in the county he may be chosen to
represent. Art. 4, Sect. 4.
15. The house of representatives shall have the sole power of
impeachment. Art. 4, Sect. 27.
16.-2. The supreme executive power of this state is vested in a chief
magistrate, who is styled "The Governor of the State of Arkansas." Art. 5,
Sect. 1.
17.-1. He is elected by the electors of the representatives.
18.-2. He must be thirty years of age a native born citizen of
Arkansas, or a native born citizen of the United States, or a resident of
Arkansas ten years previous to the adoption of this constitution, if not a
native of the United States; and, shall have been a resident of the same at
least four years next before his election. Art. 4, s. 4.
19.-3. The governor holds his office for the term of four years from
the time of, his installation, and until his successor shall be duly
qualified; but he is not eligible for more than eight years in any term of
twelve years. Art. 5, sect. 4.
20.-4. His principal duties are enumerated in the fifth article of the
constitution, and are as follows: He Shall be commander-in-chief of the army
of this state, and of the militia thereof, except when they shall be called
into the service of the United States; s. 6: He may require information, in
writing, from the officers of the executive department, on any subject
relating to the duties of their respective offices; s. 7. He may by
proclamation, on extraordinary occasions, convene the general assembly, at
the seat of government, or at a different place, if that shall have become,
since their last adjournment, dangerous from an enemy, or from contagious
diseases. In case of disagreement between the two houses, with respect to
the time of adjournment, he may adjourn them to such time as he shall think
proper, not beyond the day of the next meeting of the general assembly; s,
8. He shall, from time to time, give to the general assembly information of
the state of the government, and recommend to their consideration such
measures as he may deem expedient; s. 9. He shall take care that the laws be
faithfully executed s. 10. In all criminal and penal cases, except those of
treason and impeachment, he shall have power to grant pardons, after
conviction, and remit fines and forfeitures, under such rules and
regulations as shall be prescribed by law in cases of treason, he shall have
power, by and with the advice and consent of the senate, to grant reprieve
sand pardons; and he may, in the recess of the senate, respite the sentence
until the end of the next session of the general assembly s. 11. He is the
keeper of the seal of the' state, which is to be used by him officially; s.
12. Every bill which shall have passed both houses, shall be presented to
the governor. If he approve, he shall sign it; but if he shall not approve
it, he shall return it, with his objections, to the house in which it Shall
have originated, who shall enter his objections at large upon their
journals, and proceed to reconsider it. If, after such reconsideration, a
majority of the whole number elected to that house shall agree to pass the
bill, it shall be sent, with the objections, to the other house, by which,
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likewise, it shall be reconsidered; and if approved by a majority of the
whole number elected to that house it shall be a law; but in such cases, the
votes of both houses shall be determined by yeas and nays; and the names of
persons voting for or against the bill, shall be entered on the journals of
each house respectively. If the bill shall not be returned by the governor
within three days, Sundays excepted, after it shall have been presented to
him, the same shall be a law, in like manner as if be had signed it, unless
the general assembly, by their adjournment, prevent its return; in such case
it shall not be a law; s. 16. 5. In case of the impeachment of the governor,
his removal from office, death, refusal to qualify, or absence from the
state, the president of the senate shall exercise all the authority
appertaining to the office of governor, until another governor shall have
been elected and qualified, or until the governor absent or impeached, shall
return or be acquitted; s. 18. If, during the vacancy of the office of
governor, the president of the senate shall be impeached, removed from
office, refuse to qualify, resign, die, or be absent from the state, the
speaker of the house of representatives shall, in like manner, administer
the government; s. 19.
21.-3. The judicial power of this state is vested by the sixth article
of the constitution, as follows
22.-1. The judicial power of this state shall be vested in one supreme
court, in circuit courts, in county courts, and in justices of the peace.
The general assembly may also vest such jurisdiction as may be deemed
necessary, in corporation courts; and, when they deem it expedient, may
establish courts of chancery.
23.-2. The supreme court shall be composed of three judges, one of
whom shall be styled chief justice, any two of whom shall constitute a
quorum and the concurrence of any two of the said judges shall, in every
case, be necessary to a decision. The supreme court, except in cases
otherwise directed by this constitution, shall have appellate jurisdiction
only, which shall be coextensive with the state, under such rules and
regulations as may, from time to time, be prescribed by law; it shall have a
general superintending control over all inferior and other courts of law and
equity it shall have power to issue writs of error and Supersedeas,
certiorari and habeas corpus, mandamus, and quo warranto, and other remedial
writs, and to hear and determine the same; said judges shall be conservators
of the peace throughout the state, and shall severally have power to issue
any of the aforesaid writs.
24.-3. The circuit court shall have jurisdiction over all criminal
cases which shall not be otherwise provided for by law and exclusive
original jurisdiction of all crimes amounting to felony.at common law; and
original jurisdiction of all civil cases which shall not be cognizable
before justices of the peace, until otherwise directed by the general
assembly; and original jurisdiction in all matters of contract) when the sum
in controversy is over one hundred dollars. It shall hold its terms at such
place in each county, as may be by law directed.
25.-4. The state shall be divided into convenient circuits, each to
consist of not less than five, nor more than seven counties contiguous to
each other, for each of which a judge shall be elected, who, during his
continuance in office, shall reside and be a conservator of the peace within
the circuit for which he shall have been elected.
26.-5. The circuit courts shall exercise a superintending control over
the county courts, and over justices of the peace, in each county in their
respective circuits; and shall have power to issue all the necessary writs
to carry into effect their general and specific powers.
27.-6. Until the general assembly shall deem it expedient to establish
courts of chancery, the circuit courts shall have jurisdiction in matters of
equity, subject to appeal to the supreme court, in such manner as may be
prescribed by law.
28.-7. The general assembly shall, by joint vote of both houses, elect
the judges of the supreme and circuit courts, a majority of the whole number
in joint vote being necessary to a choice. The judges of the supreme court
shall be at least thirty years of age; they shall hold their offices for
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eight years from the date of their commissions. The judges of the circuit
courts shall be at least twenty-five years of age, and shall be elected for
the term of four years from the date of their commissions.
29.-8. There shall be established in each county, a court to be holden
by the justices of the peace, and called the county court, which shall have
jurisdiction in all matters relating, to county taxes, disbursements of
money for county purposes, and in every other case that may be necessary to
the internal improvement and local concerns of the respective counties.
30.-9. There shall be elected by the justices of the peace of the
respective counties, a presiding judge of the county court, to be
commissioned by the governor, and hold his office for the term of two years,
and until his successor is elected or qualified. He shall, in addition to
the duties that may be required of him by law, as presiding judge of the
county court, be a judge of the court of probate, and have such jurisdiction
in matters relative to the estates of deceased persons, executors,
administrators, and guardians, as may be prescribed by law, until otherwise
directed by the general assembly.
31.-10. No judge shall preside in the trial of any cause, in the event
of which he may be interested, or where either of the parties shall be
connected with him by affinity or consanguinity, within such degrees as may
be proscribed by law, or in which he shall have been of counsel, or have
presided in any inferior court, except by consent of all the parties.
32.-11. The qualified voters in each township shall elect the justices
of the peace for their respective townships. For every fifty voters there
may be elected one justice of the peace, provided, that each township,
however small, shall have two justices of the peace. Justices of the peace
shall be elected for two years, and shall be commissioned by the governor,
and reside in the townships for which they shall have been elected, during
their continuance in office. They shall have individually, or two or more of
them jointly, exclusive original jurisdiction in all matters of contract,
except in actions of covenant, where the sum in controversy is of one
hundred dollars and under. Justices of the peace shall in no case have
jurisdiction to try and determine any criminal case or penal offence against
the state; but may sit as examining courts, and commit, discharge, or
recognize to the court having jurisdiction, for further trial, offenders
against the peace. For the foregoing purposes they shall have power to issue
all necessary process they shall also have power to bind to keep the peace,
or for good behaviour.
ARM OF THE SEA. Lord Coke defines an arm of the sea to be where the sea or
tide flows or reflows. Constable's Case, 5 Co. 107. This term includes bays,
roads, creeks, coves, ports, and rivers where the water flows and reflows,
whether it be salt or fresh. Ang. Tide Wat. 61. Vide Creek; Haven;
Navigable; Port; Reliction; River; Road.
ARMISTICE. A cessation of hostilities between belligerent nations for a
considerable time. It is either partial and local, or general. It differs
from a mere suspension of arms which takes place to enable the two armies to
bury their dead, their chiefs to hold conferences or pourparlers, and the
like. Vattel, Droit des Gens, liv. 3, c. 16, Sec. 233. The terms truce,
(q.v.)
and armistice, are sometimes used in the same sense. Vide Truce.
ARMS. Any thing that a man wears for his defence, or takes in his hands, or
uses in his anger, to cast at, or strike at another. Co. Litt. 161 b, 162 a;
Crompt. Just. P. 65; Cunn. Dict. h.t.
2. The Constitution of the United States, Amendm. art. 2, declares,
"that a well regulated militia being necessary to the security of a free
state, the right of the people to keep and bear arms shall not be
infringed." In Kentucky, a statute "to prevent persons from wearing
concealed arms," has been declared to be unconstitutional; 2 Litt. R. 90;
while in Indiana a similar statute has been holden valid and constitutional.
3 Blackf. R. 229. Vide Story, Const. Sec. 1889, 1890 Amer. Citizen, 176; 1
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Tuck. Black. App. 300 Rawle on Const. 125.
ARMS, heraldry. Signs of arms, or drawings painted on shields, banners, and
the like. The arms of the United States are described in the Resolution of
Congress, of June 20, 1782. Vide Seal of the United States.
ARPENT. A quantity of land containing a French acre. 4 Hall's Law Journal,
518.
ARPENTATOR, from arpent. A measurer or surveyor of land.
ARRAIGNMENT, crim. law practice. Signifies the calling of the defendant to
the bar of the court, to answer the accusation contained in the indictment.
It consists of three parts.
2.-1. Calling the defendant to the bar by his name, and commanding
him to hold up his hand; this is done for the purpose of completely
identifying the prisoner, as the person named in the indictment; the
holding up his hand is not, however, indispensable, for if the prisoner
should refuse to do so, he may be identified by any admission that he is the
person intended. 1 Bl. Rep. 3.
3.-2. The reading of the indictment to enable him fully to
understand, the charge to be produced against him; The mode in which it is
read is, after' saying, "A B, hold up your hand," to proceed, "you stand
indicted by the name of A B, late of, &c., for that you on, &c." and then go
through the whole of the indictment.
4.-3. After this is concluded, the clerk proceeds to the third part,
by adding, "How say you, A B, are you guilty or not guilty?" Upon this, if
the prisoner, confesses the charge, the confession is recorded, and nothing
further is done till judgment if, on the contrary, he answers "not guilty",
that plea is entered for him, and the clerk or attorney general, replies
that he is guilty; when an issue is formed. Vide generally, Dalt. J. h.t.;
Burn's J. h.t.; Williams; J. h.t.; 4 Bl. Com. 322; Harg. St. Tr. 4 vol.
777, 661; 2 Hale, 219; Cro. C. C. 7; 1 Chit. Cr. Law, 414.
ARRAMEUR, maritime law. The name of an ancient officer of a port, whose
business was to load and unload vessels.
2. In the Laws of Oleron, art 11, (published in English in the App. to
1 Pet. Adm. R. xxv.) some account of arrameurs will be found in these words:
"There were formerly, in several ports of Guyenne, certain officers called
arrameurs, or stowers, who were master-carpenters by profession, and were
paid by the merchants, who loaded the ship. Their business was to dispose
right, and Stow closely, all goods in casks, bales, boxes, bundles or
otherwise to balance both sides, to fill up the vacant spaces, and manage
every thing to the best advantage. It was riot but that the greatest part of
the ship's crew understood this as well as these stowers but they would not
meddle with it, nor undertake it, to avoid falling under the merchant's
displeasure, or being accountable for any ill accident that might.happen by
that means. There were also sacquiers, who were very ancient officers, as
may be seen in the 14th book of the Theodosian code, Unica de Saccariis
Portus Romae, lib. 14. Their business was to load and unload vessels loaded
with salt, corn, or fish, to prevent the ship's crew defrauding the merchant
by false tale, or cheating him of his merchandise otherwise." See Sacquier;
Stevedore.
ARRAS, Span. law. The property contributed by the husband, ad sustinenda
onera matrimonii, is called arras. The husband is under no obligation to
give arras, but it is a donation purely voluntary. He is not permitted to
give in arras more than a tenth of his property. The arras is the exclusive
property of the wife, subject to the husband's usufruct during his life.
Burge on the Confl. of Laws, 417.
2. By arras is also understood the donation which the husband makes to
his wife, by reason or on account of marriage, and in consideration of the
dote, or portion, which be receives from her. Aso & Man. Inst. h.t. 7, c.
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3.
ARRAY, practice. The whole body of jurors summoned to attend a court, as
they are arrayed or arranged on the panel. Vide Challenges, and Dane's Ab.
Index, h.t.; 1 Chit. Cr. Law, 536; Com. Dig. Challenge, B.
ARREARAGE. Money remaining unpaid after it becomes due as rent unpaid
interest remaining due Pow. Mortgages, Index, h.t.; a sum of money
remaining in the hands of an accountant. Merl. Rep. h.t.; Dane's Ab. Index,
h.t.
ARREST. To stop; to seize; to deprive one of his liberty by virtue of legal
authority.
ARREST IN CIVIL CASES, practice. An arrest is the apprehension of a person
by virtue of a lawful authority, to answer the demand against him in a civil
action.
2. To constitute an arrest, no actual force or manual touching of the
body is requisite; it is sufficient if the party be within the power of the
officer, and submit to the arrest. 2 N. H. Rep. 318; 8 Dana, 190; 3 Herring.
416; 1 Baldw. 239; Harper, 453; 8 Greenl. 127; 1 Wend. 215 2 Blackf. 294.
Barewords, however, will not make an arrest, without laying the person or
otherwise confining him. 2 H. P. C. 129 1 Burn's Just. 148; 1 Salk. 79. It
is necessarily an assault, but not necessarily a battery. Cases Temp. Hardw.
300.
3. Arrests are made either on mesne or final process. An arrest on
mesne process is made in order that the defendant shall answer, after
judgment, to satisfy the claim of the plaintiff; on being arrested, the
defendant is entitled to be liberated on giving sufficient bail, which the
officer is bound to take. 2. When the arrest is on final process, as a ca.
sa., the defendant cannot generally be dis charged on bail; and his
discharge is considered as an escape. Vide, generally, Yelv. 29, a, note; 3
Bl. Com. 288, n.; 1 Sup. to Ves. Jr. 374; Wats. on Sher. 87; 11 East, 440;
18 E. C. L. R. 169, note.
4. In all governments there are persons who are privileged from arrest
in civil cases. In the United States this privilege continues generally
while the defendant remains invested with a particular character. Members of
congress and of the state legislatures are exempted while attending the
respective assemblies to which they belong parties and witnesses, while
lawfully attending court; electors, while attending a public election;
ambassadors and other foreign ministers; insolvent debtors, when they have
been lawfully discharged; married women, when sued upon their contracts, are
generally privileged; and executors and administrators, when sued in their
representative characters, generally enjoy the same privilege. The privilege
in favor of members of congress, or of the state legislatures, of electors,
and of parties and witnesses in a cause, extend to the time of going to,
remaining at, and returning from, the places to which they are thus legally
called.
5. The code of civil practice of Louisiana enacts as follows, namely:
Art. 210. The arrest is one of the means which the law gives the creditor
to secure the person of his debtor while the suit is pending, or to compel
him to give security for his appearance after judgment. Art. 211. Minors of
both sexes, whether emancipated or not, interdicted persons, and women,
married or single, cannot be arrested. Art. 212. Any creditor, whose debtor
is about to leave the state, even for a limited time, without leaving in it
sufficient property to satisfy the judgment which he expects to obtain in
the suit he intends to bring against him, may have the person of such debtor
arrested and confined until he shall give sufficient security that be shall
not depart from the state without the leave of the court. Art. 213. Such
arrest may be ordered in all demands brought for a debt, whether liquidated
or not, when the term of payment has expired, and even for damages for any
injury sustained by the plaintiff in either his person or property. Art.
214. Previous to obtaining an order of arrest against his debtor, to compel
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him to give sufficient security that be shall not depart from the state, the
creditor must swear in the petition which he presents to that effect to any
competent judge, that the debt, or the damages which he claims, and the
amount of which he specifies, is really due to him, and that he verily
believes that, the defendant is about to remove from the state, without
leaving in it and lastly, that he does not take this oath with the
intention of vexing the defendant, but only in order to secure his demand.
Art. 215. The oath prescribed in the preceding article, shall be taken either
by the creditor himself, or in his absence, by his attorney in fact or his
agent, provided either the one or the other can swear to the debt from his
personal and direct knowledge of its being due, and not by what he may know
or have learned from the creditor he represent. Art. 216. The oath which the
creditor is required to take of the existence and nature of the debt of
which he claims payment, in the cases provided in the two preceding
articles, may be taken either before any judge or justice of the peace of
the place where the court is held, before which he sues, or before the judge
of any other place, provided the signature of such judge be proved or duly
authenticated. Vide Auter action pendant; Lis pendens: Privilege; Rights.
ARREST, in criminal cases. The apprehending or detaining of the person, in
order to be forthcoming to answer an alleged or suspected crime. The word
arrest is more properly used in civil cases, and apprehension in criminal. A
man is arrested under a capias ad respondendum, apprehended under a warrant
charging him with a larceny.
2. It will be convenient to consider, 1, who may be arrested; 2, for
what crimes; 3, at what time; 4, in what places; 5, by whom and by what
authority.
3.-1. Who may be arrested. Generally all persons properly accused of
a crime or misdemeanor, may be arrested; by the laws of the United States,
ambassadors (q.v.) and other public ministers are exempt from arrest.
4.-2. For what offences an arrest may be made. It may be made for
treason, felony, breach of the peace, or other misdemeanor.
5.-3. At what time. An arrest may be made in the night as well as in
the day time and for treasons, felonies, and breaches of the peace, on
Sunday as well as on other days. It may be made before as well as after
indictment found. Wallace's R. 23.
6.-4. At what places. No place affords protection to offenders
against the criminal law; a man may therefore be arrested in his own house,
(q.v.) which may be broken into for the purpose of making the arrest.
7.-5. Who may arrest and by what authority. An offender may be
arrested either without a warrant or with a warrant. First, an arrest may be
made without a warrant by a private individual or by a peace officer.
Private individuals are enjoined by law to arrest an offender when present
at the time a felony is committed, or a dangerous wound given. 11 Johns. R.
486 and vide Hawk. B. 1, c, 12, s. 1; c. 13, F3. 7, 8; 4 Bl. Com. 292; 1
Hale, 587; Com. Dig. Imprisonment, H 4; Bac. Ab. Trespass, D.
3. Peace officers may, a fortiori, make an arrest for a crime or
misdemeanor committed in their view, without any warrant. 8 Serg. & R. 47.
An arrest may therefore be made by a constable, (q.v.) a justice of the
peace, (q.v.) sheriff, (q.v.) or coroner. (q.v.) Secondly, an arrest may
be made by virtue of a warrant, (q.v.) which is the proper course when the
circumstances of the case will permit it. Vide, generally, 1 Chit. Cr. Law,
11 to 71; Russ. on Cr. Index, h.t.
ARREST OF JUDGMENT. The act of a court by which the judges refuse to give
judgment, because upon the face of the record, it appears that the plaintiff
is not entitled to it. See Judgment, arrest of.
ARRESTANDIS bonis ne dissipentur. In the English law, a writ for him whose
cattle or goods, being taken during a controversy, are likely, to be wasted
and consumed.
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ARRESTEE, law of Scotland. He in whose hands a debt, or property in his
possession, has been arrested by a regular arrestment. If, in contempt of
the arrestment, he shall make payment of the sum, or deliver the goods
arrested to the common debtor, he is not only liable criminally for breach
of the arrestment, but he must pay the debt again to the arrester. Ersk. Pr.
L. Scot. 3, 6, 6.
ARRESTER, law of Scotland. One who sues out and obtains an arrestment of his
debtor's goods or movable obligations. Ersk. Pr. L. Soot. 3, 6, 1.
ARRESTMENT, Scotch law. By this term is sometimes meant the securing of a
criminal's person till trial, or that of a debtor till he give security
judicio sisti. Ersk. Pr. L. Scot. 1, 2, 12. It is also the order of a judge,
by which he who is debtor in a movable obligation to the arrester's debtor,
is prohibited to make payment or delivery till the debt due to the arrester
be paid or secured. Ersk. Pr. L. Scot. 3, 6, 1. See Attachment, foreign.
where arrestment proceeds on a depending action, it may be loosed by the
common debtor's giving security to the arrester for his debt, in the event
it shall be found due. Id. 3, 6, 7.
ARRET, French law. An arret is a judgment, sentence, or decree of, a court
of competent jurisdiction. Saisie-arret is an attachment of property in the
hands of a third person. Code of Pract. of Lo. art. 209.
ARRETTED, arrectatus, i. e. ad rectum vocatus. Convened before a judge and
charged with a crime. Ad rectum malefactorem, is, according to Bracton, to
have a malefactor forthcoming to be put on his trial. Sometimes it is used
for imputed or laid to his charge; as, no folly may be arretted to any one
under age. Bract. 1. 3, tr. 2, c. 10; Cunn. Dict. h.t.
ARRHAE, contracts, in the civil law. Money or other valuable things given by
the buyer to the seller, for the purpose of evidencing the contract earnest.
2. There are two kinds of arrhae; one kind given when a contract has
only been proposed; the other when a sale has actually taken place. Those
which are given when a bargain has been merely proposed, before it has been
concluded, form the matter of the contract, by which he who gives the arrhae
consents and agrees to lose them, and to transfer the title to them in the
opposite party, in case he should refuse to complete the proposed bargain;
and the receiver of arrhae is obliged on his part to return double the
amount to the giver of them in case be should fail to complete his part of
the contract. Poth. Contr. de Vente, n. 498. After the contract of sale has
been completed, the purchaser usually gives arrbae as evidence that the
contract has been perfected. Arrbae are therefore defined quod ante pretium
datur, et fidem fecit contractus, facti totiusque pecuniae solvendae. Id. n.
506; Code, 4, 45, 2.
TO ARRIVE. To come to a particular place; to reach a particular or certain
place as, the ship United States arrived in New York. See 1 Marsh. Dec. 411.
ARROGATION, civil law. Signifies nearly the same as adoption; the only
difference between them is this, that adoption was of a person under full
age but as arrogation required the person arrogated, sui juris, no one could
be arrogated till he was of full age. Dig. 1, 7, 5; Inst. 1, 11, 3 1 Brown's
Civ. Law, 119.
ARSER IN LE MAIN. Burning in the hand. This punishment was inflicted on
those who received the benefit of clergy. Terms de la Ley.
ARSON, criminal law. At common law an offence of the degree of felony; and
is defined by Lord Coke to be the malicious and voluntary burning of the
house of another, by night or day. 3 Inst. 66.
2. In order to make this crime complete, there must be, 1st, a burning
of the house, or some part of it; it is sufficient if any part be consumed,
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however small it may be. 9 C. & P. 45; 38 E. C. L. R. 29; 16 Mass. 105. 2d.
The house burnt must; belong to another; but if a man set fire to his own
house with a view to burn his neighbor's, and does so, it is at least a
great misdemeanor, if not a felony. 1 Hale, P. C. 568; 2 East, P. C. 1027; 2
Russ. 487. 3d. The burning must have been both malicious and willful.
3. The offence of arson at common law, does not extend further than the
burning of the house of another. By statute this crime is greatly enlarged
in some of the states, as in Pennsylvania, where it is extended to the
burning of any barn or outhouse having bay or grain therein; any barrack,
rick or stack of hay, grain, or bark; any public buildings, church or
meeting-house, college, school or library. Act 23d April, 1829; 2 Russell on
Crimes, 486; 1 Hawk. P. C. c. 39 4 Bl. Com. 220; 2 East, P. C. c. 21, s. 1,
p. 1015; 16 John. R. 203; 16 Mass. 105. As to the extension of the offence
by the laws of the United States, see Stat. 1825, c. 276, 3 Story's L. U. S.
1999.
ARSURA. The trial of money by fire after it was coined. This word is
obsolete.
ART. The power of doing. something not taught by nature or instinct.
Johnson. Eunomus defines art to be a collection of certain rules for doing
anything in a set form. Dial. 2, p. 74. The Dictionaire des Sciences
Medicales, q.v., defines it in nearly the same terms.
2. The arts are divided into mechanical and liberal arts. The
mechanical arts are those which require more bodily than mental labor; they
are usually called trades, and those who pursue them are called artisans or
mechanics. The liberal are those which have for the sole or principal
object, works of the mind, and those who are engaged in them are called
artists. Pard. Dr. Com. n. 35.
3. The act of Congress of July 4, 1836, s. 6, in describing the
subjects of patents, uses the term art. The sense of this word in its usual
acceptation is perhaps too comprehensive. The thing to be patented is not a
mere elementary, principle, or intellectual discovery, but a principle put
in practice, and applied to some art, machine, manufacture, or composition
of matter. 4 Mason, 1.
4. Copper-plate printing on the back of a bank note, is an art for
which a patent may be granted. 4 Wash. C. C. R. 9.
ART AND PART, Scotch law. Where one is accessory to a crime committed by
another; a person may be guilty, art and part, either by giving advice or
counsel to commit the crime; or, 2, by giving warrant or mandate to commit
it; or, 3, by actually assisting the criminal in the execution.
2. In the more atrocious crimes, it seems agreed, that the adviser is
equally punishable with the criminal and that in the slighter offences, the
circumstances arising from the adviser's lesser age, the jocular or careless
manner of giving the advice, &c., may be received as pleas for softening the
punishment.
3. One who gives a mandate to commit a crime, as he is the first spring
of the action, seems more guilty than the person employed as the instrument
in executing it.
4. Assistance may be given to the committer of a crime, not only in the
actual execution, but previous to it, by furnishing him, with a criminal
intent, with poison, arms, or other means of perpetrating it. That sort of
assistance which is not given till after the criminal act, and which is
commonly called abetting, though it be itself criminal, does not infer art
and part of the principal crime. Ersk. Pr. L; Scot. 4, 4, 4 ; Mack. Cr.
Treat. tit. Art and Part.
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ASSIZE, Eng. law. This was the name of an ancient court; it derived its name
from assideo, to sit together. Litt. s. 234; Co. Litt. 153 b., 159 b. It was
a kind of jury before which no evidence was adduced, their verdict being
regarded as a statement of facts, which they knew of their own knowledge.
Bract. iv. 1, 6.
2. The name of assize was also given to a remedy for the restitution of
a freehold, of which the complainant had been disseised. Bac. Ab. h.t.
Assizes were of four kinds: Mort d'ancestor Novel Disseisin Darrien
Presentment; and Utrum. Neale's F. & F. 84. This remedy has given way to
others less perplexed and more expeditious. Bac. Ab. h.t.; Co. Litt. 153-
155.
3. The final judgment for the plaintiff in an assize of Novel
Disseisin, is, that he recover per visum recognitorum, and it is
sufficiently certain. if the recognitors can put the demandant in
possession. Dyer, 84 b; 10 Wentw. Pl. 221, note. In this action, the
plaintiff cannot be compelled to be nonsuited. Plowd. 11 b. See 17 Serg. &
R. 187; 1 Rawle, Rep. 48, 9.
4. There is, however, in this class of actions, an interlocutory
judgment, or award in the nature of a judgment, and which to divers intents
and purposes, is a judgment; 11 Co. Rep. 40 b; like the judgment of quod
computet, in account render; or quod partitio fiat, in partition; quod
mensuratio fiat; ouster of aid; award of a writ of inquiry, in waste.; of
damages in trespass; upon these and the like judgments, a writ of error does
not lie. 11 Co. Rep. 40 a; Metcalf's Case, 2 Inst. 344 a: 24 Ed. III, 29 B
19.
ASSIZE OF MORT D' ANCESTOR. The name, of an ancient writ, now obsolete. It
might have been sued out by one whose father, mother, brother, &c., died
seised of lands, and tonements, which they held in fee, and which, after
their death, a stranger abated. Reg. Orig. 223. See Mort d' Ancestor.
ASSOCIATE. This term is applied to a judge who is not the president of a
court; as associate judge.
ASSOCIATION. The act of a number of persons uniting together for some
purpose; the persons so joined are also called an association. See Company.
ASSUMPSIT, contracts. An undertaking either express or implied, to perform a
parol agreement. 1 Lilly's Reg. 132.
2. An express assumpsit is where one undertakes verbally or in writing,
not under seal, or by matter of record, to perform an act, or to pa a sum of
money to another.
3. An implied assumpsit is where one has not made any formal promise to
do an act or to pay a sum of money to another, but who is presumed from his
conduct to have assumed to do what is in point of law just and right; for,
1st, it is to be presumed that no one desires to enrich himself at the
expense of another; 2d, it is a rule that he who desires the antecedent,
must abide by the consequent; as, if I receive a loaf of bread or a
newspaper daily sent to my house without orders, and I use it without
objection, I am presumed to have accepted the terms upon which the person
sending it had in contemplation, that I should pay a fair price for it; 3d,
it is also a rule that every one is presumed to assent to what is useful to
him. See Assent
ASSUMPSIT, remedies, practice., A form of action which may be defined to be
an action for the recovery of damages for the non-performance of, a parol or
simple contract; or, in other words, a contract not under seal, nor of
record; circumstances which distinguish this remedy from others. 7 T. R.
351; 3 Johns. Cas. 60. This action differs from the action of debt; for, in
legal consideration, that is for the recovery of a debt eo nomine, and in
numero, and may be upon a deed as well as upon any other contract. 1 h. Bl.
554; B. N. P. 167. If differs from covenant, which, though brought for the
recovery of damages, can only be supported upon a contract under seal. See
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Covenant.
2. It will be proper to consider this subject with reference, 1, to the
contract upon which this action may be sustained; 2, the declaration 3, the
plea; 4, the judgment.
3.-1. Assumpsit lies to recover damages for the breach of all parol
or simple contracts, whether written or not written express or implied; for
the payment of money, or for the performance or omission of any other act.
For example, to recover, money lent, paid, or had and received, to the use
of the plaintiff; and in some cases, where money has been received by the
defendant, in consequence of some tortious act to the plaintiff's property,
the plaintiff may waive the tort, and sue the defendant in assumpsit. 5
Pick. 285; 1 J. J. Marsh. 543 3 Watts, R. 277; 4 Binn. 374; 3 Dana, R. 552;
1 N. H. Rep. 151; 12 Pick. 120 4 Call. R. 461; 4 Pick. 452. It is the proper
remedy for work and. labor done, and services rendered 1 Gill, 95; 8 S. & M.
397 2 Gilman, 1 3 Yeates, 250 9 Ala. 788 but such work, labor, or services,
must be rendered at the request, express or implied, of the defendant; 2
Rep. Cons. Ct. 848; 1 M'Cord, 22; 20 John. 28 11 Mass. 37; 14 Mass. 176; 5
Monr. 513 1 Murph. 181; for goods sold and delivered; 6 J. J. Marsh. 441; 12
Pick. 120; 3 N. H. Rep. 384; 1 Mis. 430; for a breach of promise of
marriage. 3 Mass. 73 2 Overton, 233 2 P. S. R. 80. Assumpsit lies to recover
the purchase money for land sold; 14 Johns. R. 210; 14 Johns. R. 162; 20
Johns. R. 838 3 M'Cord, R. 421; and it lies, specially, upon wagers; 2 Chit.
Pl. 114; feigned issues; 2 Chit. Pl. 116; upon foreign judgments; 8 Mass.
273; Dougl. 1; 3 East, 221; 11 East, 124; 3 T. R. 493; 5 Johns. R. 132. But
it will not lie on a judgment obtained in a sister state. 1 Bibb, 361 19
Johns. 162; 3 Fairf. 94; 2 Rawle, 431. Assumpsit is the proper remedy upon
an account stated. Bac. Ab. Assumpsit, A. It will lie for a corporation, 2
Lev. 252; 1 Camp. 466. In England it does not lie against a corporation,
unless by express authority of some legislative act; 1 Chit. Pl. 98; but in
this country it lies against a corporation aggregate, on an express or
implied promise, in the same manner as against an individual. 7 Cranch, 297
9 Pet. 541; 3 S. & R. 117 4 S. & R. 16 12 Johns. 231; 14 Johns. 118; 2 Bay,
109 1 Chipm. 371, 456; 1 Aik. 180 10 Mass, 397. But see 3 Marsh. 1; 3 Dall.
496.
4.-2. The declaration must invariably disclose the consideration of
the contract, the contract itself, and the breach of it; Bac. Ab. h.t. F 5
Mass. 98; but in a declaration on a negotiable instrument under the statute
of Anne, it is not requisite to, allege any consideration; 2 Leigh, R. 198;
and on a note expressed to have been given for value received, it is not
necessary to aver a special consideration. 7 Johns. 321. See Mass. 97. The
gist of this action is the promise, and it must be averred. 2 Wash. 187 2 N.
H. Rep. 289 Hardin, 225. Damages should be laid in a sufficient amount to
cover the real amount of the claim. See 4 Pick. 497; 2 Rep. Const. Ct. 339;
4 Munf. 95; 5 Munf. 23; 2 N. H. Rep. 289; 1 Breese, 286; 1 Hall, 201; 4
Johns. 280; 11 S. & R. 27; 5 S. & R. 519 6 Conn. 176; 9 Conn. 508; 1 N. & M.
342; 6 Cowen, 151; 2 Bibb, 429; 3 Caines, 286.
5.-3. The usual plea is non-assumpsit, (q.v.) under which the
defendant may give in evidence most matters of defence. Com. Dig. Pleader, 2
G 1. When there are several defendants they cannot plead the general issue
severally; 6 Mass. 444; nor the same plea in bar, severally. 13 Mass. 152.
The plea of not guilty, in an action of assumpsit, is cured by verdict. 8 S.
& R. 541; 4 Call. 451. See 1 Marsh, 602; 17 Mass. 623. 2 Greenl. 362; Minor,
254 Bouv. Inst. Index, h.t.
6.-4. Judgment. Vide Judgment in Assumpsit. Vide Bac. Ab. h.t.; Com.
Dig. Action upon the Case upon Assumpsit; Dane's Ab. Index, h.t.; Viner's
Ab. h.t.; 1 Chit. Pi. h.t.; Petersd. h.t.; Lawes Pl. in Assumpsit the
various Digests, h.t. Actions; Covenant; Debt; Indebitatus assumpsit; Padum
Constitutiae pecuniae.
ASSURANCE, com. law. Insurance. (q.v.)
ASSURANCE, conveyancing. This is called a common assurance. But the term
assurances includes, in an enlarged sense, all instruments which dispose of
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property, whether they be the grants of private persons, or not; such are
fines and recoveries, and private acts of the legislature. Eunom. Dial. 2,
s. 5.
ASSURED. A person who has been insured by some insurance company, or
underwriter, against losses or perils mentioned in the policy of insurance.
Vide Insured.
ASSURER. One who insures another against certain perils and dangers. The
same as underwriter. (q.v.) Vide Insurer.
ASSYTHMENT, Scotch law. An indemnification which a criminal is bound to make
to the party injured or his executors, though the crime itself should be
extinguished by pardon. Ersk. Pr. L. Scot. 4, 3, 13.
ASYLUM. A place, of refuge where debtors and criminals fled for safety.
2. At one time, in Europe, churches and other consecrated places served
as asylums, to the disgrace of the law. These never protected criminals in
the United States. It may be questioned whether the house of an ambassador
(q.v.) would not afford protection temporarily, to a person who should take
refuge there.
AT LAW. This phrase is used to point out that a thing is to be done
according to the course of the common law; it is distinguished from a
proceeding in equity.
2. In many cases when there is no remedy at law, one will be afforded
in equity. See 3 Bouv. Inst. n. 2411.
ATAVUS. The male ascendant in the fifth degree, was so called among the
Romans, and in tables of genealogy the term is still employed.
ATHEIST. One who denies the existence of God.
2. As atheists have not any religion that can bind their consciences to
speak the truth, they are excluded from being witnesses. Bull. N. P. 292; 1
Atk. 40; Gilb. Ev. 129; 1 Phil. Ev. 19. See also, Co. Litt. 6 b.; 2 Inst.
606; 3 Inst. 165; Willes, R. 451 Hawk. B. 2, c. 46, s. 148; 2 Hale's P. C.
279.
TO ATTACH, crim. law, practice. To an attachment for contempt for the non-
take or apprehend by virtue of the order of a writ or precept, commonly
called an attachment. It differs from an arrest in this, that he who arrests
a man, takes him to a person of higher power to be disposed of; but be who
attaches, keeps the party attached, according to the exigency of his writ,
and brings him into court oh the day assigned. Kitch. 279; Bract. lib. 4;
Fleta, lib. 5, c. 24; 17 S. & R. 199.
ATTACHE'. Connected with, attached to. This word is used to signify those
persons who are attached to a foreign legation. An attache is a public
minister within the meaning of the Act of April 30, 1790, s. 37, 1 Story's
L. U. S. 89, which protects from violence "the person of an ambassador or
other public minister." 1 Bald. 240 Vide 2 W. C. C. R. 205; 4 W. C. C. R.
531; 1 Dall. 117; 1 W. C. C. R. 232; 4 Dall. 321. Vide Ambassador; Consul;
Envoy; Minister.
ATTORNMENT, estates. Was the agreement of the tenant to the grant of the
seignory, or of a rent, or the agreement of the donee in tail, or tenant for
life, or years, to a grant of a reversion or of a remainder made to another.
Co. Litt. 309; Touchs. 253. Attornments are rendered unnecessary, even in
England, by virtue of sundry statutes, and they are abolished in the United
States. 4 Kent, Com. 479; 1 Hill. Ab. 128, 9. Vide 3 Vin. Ab. 317; 1 Vern.
330, n.; Saund. 234, n. 4; Roll. Ab. h.t.; Nelson's Ab. h.t.; Com. Dig. h.t.
AU BESOIN. This is a French phrase, used in commercial law. When the drawer
of a foreign bill of exchange wishes as a matter of precaution, and to save
expenses, he puts in the corner of the bill, "Au besoin chez Messieurs or,
in other words, "In case of need, apply to Messrs. at __________
"___________." 1 Bouv. Inst. n. 1133 Pardess Droit Com. 208.
AUBAINE, French law. When a foreigner died in France, the crown by virtue of
a right called droit d'aubaine, formerly claimed all the personal property
such foreigner had in France at the time of his death. This barbarous law
was swept away by the French revolution of 1789. Vide Albinatus Jus. 1
Malleville's Analyse de la Discussion du Code Civil, pp. 26, 28 1 Toullier,
236, n. 265.
AUGMENTATION, old English law. The name of a court erected by Henry VIII.,
which was invested with the power of determining suits and controversies
relating to monasteries and abbey lands.
AULA REGIS. The name of an English court, so called because it was held in
the great hall of the king's palace. Vide Curia Regis.
AUNT, domestic relations. The sister of one's father or mother; she is a
relation in the third degree. Vide 2 Com. Dig. 474 Dane's Ab. c. 126, a. 3.
Sec. 4.
AUTER. Another. This word is frequently used in composition, us auter droit,
auter vie, auter action, &c.
AUTRE ACTION PENDANT. A plea that another action is pending for the same
cause.
2. It is evident that a plaintiff cannot have two actions at the same
time, for the same cause, against the same defendant; and when a second
action is so commenced, and this plea is filed, the first action must be
discontinued, and the costs paid, and this ought to be done before the
plaintiff replies nul tiel record. Grah. Pr. 98. See Lis Pendens.
3. But the suit must be for the same cause, in order to take advantage
of it under these circumstances, for if it be for a different cause, as, if
the action be for a lien, as, a proceeding in, rem to enforce a mechanic's
lien, it cannot be pleaded in abatement in an action for the labor and
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materials. 3 Scamm. 201. See 16 Verm. 234; 1 Richards, 438; 3 Watts & S. 395
7 Mete. 570; 9 N. H. Rep. 545.
4. In general, the pending of another action must be pleaded in
abatement; 3 Rawle, 320; 1 Mass. 495; 5 Mass. 174, 179; 2 N. H. Rep. 36 7
Verm. 124; 3 Dana, 157; 1 Ashm. 4, 2 Browne, 175 4 H. & M. 487; but in a
penal action, at the suit of a common informer, the priority of a former
suit for the same penalty in the name of a third person, may be pleaded in
bar, because the party who first sued is entitled to the penalty. 1 Chit.
Pl. 443.
5. Having once arrested a defendant, the plaintiff cannot, in general,
arrest him again for the same cause of action. Tidd. 184. But under special
circumstance's, of which the court will judge, a defendant may be arrested a
second time. 2 Miles, 99, 100, 141, 142. Vide Bac. Ab. Bail in civil cases,
B 3; Grah. Pr. 98; Troub. & H. Pr. 44; 4 Yeates, 206, 1 John. Cas. 397; 7
Taunt. 151; 1 Marsh. 395; and Lis Pendens.
AUTER DROIT, or more properly, Autre Droit, another's right. A man may sue
Or be sued in another's right; this is the case with executors and
administrators.
AUTHENTIC. This term signifies an original of which there is no doubt.
AUTHENTIC ACT, civil law, contracts, evidence. The authentic act is that
which has been executed before a notary or other public officer authorized
to execute such functions, or which is testified by a public seal, or has
been rendered public by the authority of a competent magistrate, or which is
certified as being a copy of a public register. Nov. 73, c. 2; Code, 7, 52;
6; Id. 4, 21; Dig. 22, 4.
2. In Louisiana, the authentic act, as it relates to contracts, is that
which has been executed before a notary public or other officer authorized
to execute such functions, in presence of two witnesses, free, male, and
aged at least fourteen years, or of three witnesses, if the party be blind.
If the party does not know how to sign, the notary must cause him to affix
his mark to the instrument. Civil Code of Lo., art. 2231.
3. The authentic act is full proof of the agreement contained in it,
against the contracting parties and their. heirs or assigns, unless it be
declared and proved to be a forgery. Id. art. 2233. Vide Merl. Rep. h.t.
B.
BACHELOR. The first degree taken at the universities in the arts and
sciences, as bachelor of arts, & c. It is called, in Latin, Baccalaureus,
from bacalus, or bacillus, a staff, because a staff was given, by way of
distinction, into the hands of those who had completed their studies. Some,
however, have derived the word from baccalaura, others from bas chevalier,
as designating young squires who aspire to the knighthood. (Dupin.) But the
derivation. of the word is uncertain.
BACK-BOND. A bond given by one to a surety, to indemnify such surety in case
of loss. In Scotland, a back-bond is an instrument which, in conjunction
with another which gives an absolute disposition, constitutes a trust. A
declaration of trust.
BACK-WATER. That water in a stream which, in consequence of some obstruction
below, is detained or checked in its course, or reflows.
2. Every riparian owner is entitled to the benefit of the water in its
natural state. Whenever, therefore, the owner of land dams or impedes the
water in such a manner as to back it on his neighbor above, he is liable to
an action; for no one has a right to alter the level of the water, either
where it enters, or where it leaves his property. 9 Co. 59; 1 B. & Ald. 258;
1 Wils. R. 178; 6 East, R. 203; 1 S. & Stu. 190.; 4 Day, R. 244; 7 Cowen, R.
266; 1 Rawle, R. 218; 5 N. R. Rep. 232; 9 Mass. R. 316; 7 Pick. R. 198; 4
Mason, R. 400; 1 Rawle, R. 27; 2 John. Ch. R. 162, 463; 1 Coxe's. R. 460.
Vide, Dam; Inundation; Water-course; and 5 Ohio R. 322.
BACKING, crim. law practice. Backing a warrant occurs whenever it becomes
necessary to execute it out of the jurisdiction of the magistrate who
granted it; as when an offender escapes out of the county in which he
committed the offence with which he is charged, into another county. In such
a case, a magistrate of the county in which the offender may, be found,
endorses, or writes his name on the back of the warrant, and thereby gives
authority to execute it within his jurisdiction. This is called backing the
warrant. This may be from county to county, if necessary.
BACKSIDE, estates. In England this term was formerly used in conveyances and
even in pleadings, and is still, adhered to with reference to ancient
descriptions in deeds, in continuing the transfer of the same. property. It
imports a yard at the back part of, or behind a house, and belonging
thereto: but although formerly used in pleadings, it is now unusual to adopt
it, and the word yard is preferred. 1 Chitty's Pr. 177; 2 Ld. Raym. 1399.
BADGE. A mark or sign worn by some persons, or placed upon certain things
for the purpose of designation. Some public officers, as watchmen,
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policemen, and the like, are required to wear badges that they may be
readily known. It is used figuratively when we say, possession of personal
property by the seller, is. a badge of fraud.
BAGGAGE. Such articles as are carried by a traveller; luggage. Every thing
which a passenger, carries, with him is not baggage. Large sums of money,
for example, carried in a travelling trunk, will not be considered baggage,
so as to render the carrier responsible. 9 Wend. R. 85. But a watch
deposited in his trunk is part of his baggage. 10 Ohio R. 145. See, as to
what is baggage, 6 Hill, R. 586 5 Rawle, 188, 189; 1 Pick. 50.
2. In general a common carrier of passengers is responsible for
baggage, if lost, though no distinct price be paid for transporting it, it
being included in the passenger's fare. Id. The carrier's responsibility for
the baggage begins as soon as it has been delivered to him, or to his
servants, or to some other person authorized by him to receive it. Then the
delivery is complete. The risk and responsibility of the carrier is at an
end as soon as he has delivered the baggage to the owner or his agent; and
if an offer to deliver it be made at a proper time, the carrier will be
discharged from responsibility, us 'such yet, if the baggage remain in his
custody afterwards, he will hold as, bailee, and be responsible for it
according to the terms of such bailment ana, R. 92. Vide Common Carriers
3. By the act of congress of March 2, 1799, sect. 46, 1 Story's L. U.
S. 612, it is declared that all wearing apparel and other personal baggage,
&c., of persons who shall arrive in the United States, shall be free and
exempted from duty.
BAIL, practice, contracts. By bail is understood sureties, given according
to law, to insure the appearance of a party in court. The persons who become
surety are called bail. Sometimes the term is applied, with a want of
exactness, to the security given by a defendant, in order to obtain a stay
of execution, after judgment, in civil cases., Bail is either civil or
criminal.
2.- 1. Civil bail is that which is entered in civil cases, and is
common or special bail below or bail above.
3. Common bail is a formal entry of fictitious sureties in the proper
office of the court, which is called filing. common bail to the action. It
is in the same form as special bail, but differs from it in this, that the
sureties are merely fictitious, as John Doe and Richard Roe: it has,
consequently, none of, the incidents of special bail. It is allowed to the
defendant only when he has been discharged from arrest without bail, and it
is necessary in such cases to perfect the appearance of the defendant.
Steph. Pl. 56, 7; Grah. Pr. 155; Highm. on Bail 13.
4. Special bail is an undertaking by one or more persons for another,
before some officer or court properly authorized for that purpose, that he
shall appear at a certain time and place, to answer a certain charge to be
exhibited against him. The essential qualification to enable a person to
become bail, are that he must be, 1. a freeholder or housekeeper; 2. liable
to the ordinary process of the court 3. capable of entering into a contract;
and 4. able to pay the amount for which he becomes responsible.
1. He must be a freeholder or housekeeper. (q. v.) 2 Chit. R. 96; 5
Taunt. 174; Lofft, 148 3 Petersd. Ab. 104.
2. He must be subject to the ordinary process of the court; and a
person privileged from arrest, either permanently or temporarily, will not
be taken. 4 Taunt. 249; 1 D. & R. 127; 2 Marsh. 232.
3. He must be competent to enter into a contract; a feme covert, an
infant, or a person non compos mentis, cannot therefore become bail.
4. He must be able to pay the amount for which he becomes responsible.
But it is immaterial whether his property consists of real or personal
estate, provided it be his own, in his own right; 3 Peterd. Ab. 196; 2 Chit.
Rep. 97; 11 Price, 158; and be liable to the ordinary process of the law; 4
Burr. 2526; though this rule is not invariably adhered to, for when part of
the property consisted of a ship, shortly expected, bail was permitted to
justify in respect of such property. 1 Chit. R. 286, n. As to the persons
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who cannot be received because they are not responsible, see 1 Chit. R. 9,
116; 2 Chit. R. 77, 8; Lofft, 72, 184; 3 Petersd. Ab. 112; 1 Chit. R. 309,
n.
5. Bail below. This is bail given to the sheriff in civil cases, when
the defendant is arrested on bailable process; which is done by giving him a
bail bond; it is so called to distinguish it from bail above. (q. v.) The
sheriff is bound to admit a man to bail, provided good and sufficient
sureties be tendered, but not otherwise. Stat. 23 H. VI. C. 9, A. D. 1444; 4
Anne, c. 16, Sec. 20; B. N. P. 224; 2 Term Rep., 560. The sheriff, is not,
however, bound-to demand bail, and may, at his risk, permit the defendant to
be at liberty, provided he will appear, that is, enter bail above, or
surrender himself in proper time. 1 Sell. Pr. 126, et seq. The undertaking
of bail below is, that the defendant will appear or put in bail to the
action on the return day of the writ.
6. Bail above, is putting in bail to the action, which is an appearance
of the defendant. Bail above are bound either to satisfy the plaintiff his
debt and costs, or to surrender the defendant into custody, provided
judgment should be against him and he should fail to do so. Sell. Pr. 137.
7. It is a general rule that the defendant having been held to bail, in
civil cases, cannot be held a second time for the same cause of action.
Tidd' s Pr. 184 Grah. Pr. 98; Troub. & Hal. 44; 1 Yeates, 206 8 Ves. Jur.
594. See Auter action Pendent; Lis pendens.
8. - 2. Bail in criminal cases is defined to be a delivery or bailment
of a person to sureties, upon their giving, together with himself,
sufficient security for his appearance, he being supposed to be in their
friendly custody, instead of going to prison.
9. The Constitution of the United States directs that "excessive bail
shall not be required." Amend. art. 8.
10. By the acts of congress of September, 24, 1789, s. 33, and March 2,
1793, s. 4, authority is given to take bail for any crime or offence against
the United States, except where the punishment is death, to any justice or
judge of the United States, or to any chancellor, judge of the supreme or
superior court, or first judge of any court of common pleas, or mayor of any
city of any state, or to any justice of the peace or other magistrate of any
state, where the offender may be found the recognizance @tal,-en by any of
the persons authorized, is to be returned to the court having cognizance of
the offence.
11. When the punishment by the laws of the United States is death, bail
can be taken only by the supreme or circuit court, or by a judge of the
district court of the United States. If the person committed by a justice of
the supreme court, or by the judge of a district court, for an offence not
punishable with death, shall, after commitment, offer bail, any judge of the
supreme or superior court of law, of any state, (there being no judge of the
United States in the district to take such bail,) way admit such person to
bail.
12. Justices of the peace have in general power to take bail of persons
accused; and, when they have such authority they are required to take such
bail There are many cases, however, under the laws of the several states, as
well as under the laws of the United States,, as above mentioned, where
justices of the peace cannot take bail, but must commit; and, if the accused
offers bail, it must be taken by a judge or other,, officer lawfully
authorized.
13. In Pennsylvania, for example, in cases of murder, or when the
defendant is charged with the stealing of any horse, mare, or gelding, on
the direct testimony of one witness; or shall be taken having possession of
such horse, mare, or gelding, a justice of the peace cannot admit the party
to bail. 1 Smith's L. of Pa. 581.
14. In all cases where the party is admitted to bail, the recognizance
is to be returned to the court having @jurisdict on of the offence charged.
Vide Act of God. Arrest; Auter action pendent; Deat Lis pendens.
BAIL BOND, practice, contracts. A specialty by which the defendant and other
persons, usually not less than two, though the sheriff may take only one,
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become bound to the sheriff in a penalty equal to that for which bail is
demanded, conditioned for the due appearance of such defendant to the legal
process therein described, and by which the sheriff has been commanded to
arrest him. It is only where the defendant is arrested or in the custody of
the sheriff, under other than final process, that the sheriff can take such
bond. On this bond being tendered to him, which he is compelled to take if
the sureties are good, he must discharge the defendant. Stat. 23 H. VI. c.
9.
2. With some exceptions, as for example, where the defendant
surrenders; 5 T. R. 754; 7 T. R. 123; 1 East, 387; 1 Bos. & Pull. 326;
nothing can be a performance of the condition of the bail bond, but putting
in bail to the action. 5 Burr. 2683.
3. The plaintiff has a right to demand from the sheriff an assignment
of such bond, so that he may sue it for his own benefit. 4 Ann. c. 16, Sec.
20; Wats. on Sheriff, 99; 1 Sell. Pr. 126, 174. For the general requisites
of a bail bond, see 1 T. R. 422; 2 T. R. 569 15 East. 320; 2 Wils. 69; 6 T.
R. 702; 9 East, 55; . D. & R. 215; 4 M. & S. 338; 1 Moore, R. 514; 6 Moore,
R. 264 East, 568; Hurls. on Bonds, 56; U. S. Dig. Bail V.
BAIL PIECE. A certificate given by a judge or the clerk of the court, or
other person authorized to keep the record, in which it is certified that A
B, the bail, became bail, for C D, the defendant, in a certain sum, and in a
particular case. It was the practice formerly, to write these certificates
upon small pieces of parchment, in the following form: (See 3 Bl. Com.
Appendix.)
In the Court of ______________, of the Term of ________, in the year of our
Lord, ____________, ________________City and County of ________________, ss.
Theunis Thew is delivered to bail upon the taking of his body, to Jacobus
Vanzant, of the city of_________________, merchant, and to John Doe, of the
same city, yeoman. SMITH, JR. At the suit of Attorney for Deft. PHILIP
CARSWELL. Taken and acknowledged the ____ day of _______, A. D. _____,
before me. D. H.
2. As the bail is supposed to have the custody of the defendant, when
he is armed with this process, he may arrest the latter, though he is out of
the jurisdiction of the court in which he became bail, and even in a
different state. 1 Baldw. 578; 3 Com. 84, 421; 2 Yeates, 263 8 pick. 138; 7
John. 145; 3 Day, 485. The bail may take him even while attending court as a
suitor, or any time, even on Sunday. 4 Yeates, 123; 4 Conn. 170. He may
break even an outer door to seize him; and command the assistance of the
sheriff or other officers; 8 Pick. 138; and depute his power to others.. 1
John. Cas. 413; 8 Pick. 140. See 1 Serg. & R. 311.
BAILABLE ACTION. One in which the defendant is entitled to be discharged
from arrest, only upon giving bail to answer.
BAILABLE PROCESS. Is that process by which an officer is required to arrest
a person, and afterwards to take bail for his appearance. A capias ad
respondendum is bailable, but a capias ad satisfaciendum is not.
BAILEE, contracts. One to whom goods are bailed.
2. His duties are to act in good faith he is bound to use extraordinary
diligence in those contracts or bailments, where he alone receives the
benefit, as in loans; he must observe ordinary diligence of those bailments,
which are beneficial to both parties, as hiring; and he will be responsible
for gross negligence in those bailments which are only for the benefit of
the bailor, is deposit and mandate. Story's Bailm. Sec. 17, 18, 19. He is
bound to return the property as soon as the purpose for which it was bailed
shall have been accomplished.
3. He has generally a right to retain and use the thing bailed,
according to the contract, until the object of the bailment shall have been
accomplished.
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4. A bailee with a mere naked authority, having a right to remuneration
for his trouble, but coupled with no other interest, may support trespass
for any injury, amounting to a trespass, done while he was in the actual
possession of the thing. 4 Bouv. Inst. n. 3608.
BAILIFF, account render. A bailiff is a person who has, by delivery, the
custody and administration of lands or goods for the benefit of the owner or
bailor, and is liable to render an account thereof. Co. Lit. 271; 2 Leon.
245; 1 Mall . Ent. 65. The word is derived from the old French word bailler,
to bail, that is, to deliver. Originally, the word implied the delivery of
real estate, as of land, woods, a house, a part of the fish in a pond; Owen,
20; 2 Leon. 194; Keilw. 114 a, b; 37 Ed. III. 7; 10 H. VII. 7, 30; but was
afterwards extended to goods and chattels. Every bailiff is a ,receiver, but
every receiver is not a bailiff. Hence it is a good plea that the defendant
never was receiver, but as bailiff. 18 Ed. III. 16. See Cro. Eliz. 82-3; 2
Anders. 62-3, 96-7 F. N. B. 134 F; 8 Co. 48 a, b.
2. From a bailiff is required administration, care, management, skill.
He is, therefore, entitled to allowance for the expense of administration,
and for all things done in his office, according to his own judgment,
without the special direction of his principal, and also for casual things
done in the common course of business: 1 Mall. Ent. 65, (4) 11; 1 Rolle, Ab.
125, 1, 7; Co. Lit. 89 a; Com. Dig. E 12 Bro. Ab. Acc. 18 Lucas, Rep. 23 but
not for things foreign to his office. Bro. Ab. Acc .26, 88; Plowd. 282b, 14;
Com. Dig. Acc. E13; Co. Lit. 172; 1 Mall. Ent. 65, (4) 4. Whereas, a mere
receiver, or a receiver who is not also a bailiff, is not entitled to
allowance for any expenses. Bro. Ab. Acc. 18; 1 Mall. Ent. 66, (4) 10; 1
Roll. Ab. 118; Com. Dig. E 13; 1 Dall. 340.
3. A bailiff may appear and plead for his principal in an assize; " and
his plea com- @mences " thus, " J. S., bailiff of T. N., comes " &c., not "
T. N., by his bailiff, J. S., comes," &c. 2 Inst. 415; Keilw. 117 b. As to
what matters he may plead, see 2 Inst. 414.
BAILIFF, office. Magistrates who for @merly administered justice in the
parliaments or courts of France, answering to the English sheriffs as
mentioned by Bracton. There are still bailiffs of particular towns in
England as the bailiff of Dover Castle, &c., otherwise bailiffs are now only
officers or stewards, &c. as Bailiffs of liberties, appointed by every lord
within his liberty, to serve writs, &c. Bailiff errent or itinerant,
appointed to go about the country for the same purpose. Sheriff 's bailies,
sheriff's officers to execute writs; these are also called bound bailiffs
because they are usually bound in a bond to the sheriff for the due
execution of their office. Bailiffs of court baron, to summon the court,
&c. Bailiffs of husbandry, appointed by private persons to collect their
rents and manage their estates. Water bailiffs, officers in port towns for
searching ships, gathering tolls, &c. Bac. Ab. h. t.
BAILMENT, contracts. This word is derived from the French, bailler, to
deliver. 2 Bl. Com. 451; Jones' Bailm. 90 Story on Bailm. c. 1, Sec. 2. It
is a compendious expression, to signify a contract resulting from delivery.
It has been defined to be a delivery of goods on a condition, express or
implied, that they shall be restored by the bailee to the bailor, or
according to his directions, as soon as the purposes for which they are
bailed shall be answered. 1 Jones' Bailm. 1. Or it is a delivery of goods in
trust, on a contract either expressed or implied, that the trust shall be
duly executed, and the goods redelivered, as soon as the time or use for
which they were bailed shall have elapsed or be performed. Jones' Bailm.
117.
2. Each of these definitions, says Judge Story, seems redundant and
inaccurate if it be the proper office of a definition to include those
things only which belong to the genus or class. Both these definitions
suppose that the goods are to be restored or redelivered; but in a bailment
for sale, as upon a consignment to a factor, no redelivery is contemplated
between the parties. In some cases, no use is contemplated by the bailee, in
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others, it is of the essence of the contract: in some cases time is material
to terminAte the contract; in others, time is necessary to give a new
accessorial right. Story,on Bailm. c. 1, Sec. 2.
3. Mr. Justice Blackstone has defined a bailment to be a delivery of
goods in trust, upon contract, either expressed or implied, that the trust
shall be faithfully executed on the part of the bailee. 2 Bl. Com. 451. And
in another place, as the delivery of goods to another person for a
particular use. 2 Bl. Com. 395. Vide Kent's Comm. Lect. 40, 437.
4. Mr. Justice Story says, that a bailment is a delivery of a thing in
trust for some special object or purpose, and upon a contract, express or
implied, to conform to the object or purpose of the trust. Story on Bailm.
c. 1, Sec. 2. This corresponds very nearly with the definition of Merlin.
Vide Repertoire, mot Bail.
5. Bailments are divisible into three kinds: 1. Those in which the
trust is for the benefit of the bailor, as deposits and mandates. 2. Those
in which the trust is for the benefit of the bailee, as gratuitous loans for
use. 3. Those in which the trust is for the benefit of both parties, as
pledges or pawns, and hiring and letting to hire. See Deposit; Hire; Loans;
mandates and Pledges.
6. Sir William Jones has divided bailments into five sorts, namely: 1.
Depositum, or deposit. 2. Mandatum, or commission without recompense. 3.
Commodatum, or loan for use, without pay. 4. Pignori acceptum, or pawn. 5.
Locatum, or hiring, which is always with reward. This last is subdivided
into, 1. Locatio rei, or hiring, by which the hirer gains a temporary use of
the thing. 2. Locatio operis faciendi, when something is to be done to the
thing delivered. 3. Locatio operis mercium vehendarum, when the thing is
merely to be carried from one place to another. See these several words. As
to the obligations and duties of bailees in general, see Diligence, and
Story on Bailm. c. 1; Chit. on Cont. 141; 3 John. R. 170; 17 Mass. R. 479; 5
Day, 15; 1 Conn. Rep. 487; 10 Johns. R. 1, 471; 12 Johns. R. 144, 232; 11
Johns. R. 107; 15 Johns. R. 39; 2 John. C. R. 100; 2 Caines' Cas. 189; 19
Johns. R. 44; 14 John. R. 175; 2 Halst. 108; 2 South. 738; 2 Harr. & M'Hen.
453; 1 Rand. 3; 2 Hawks, 145; 1 Murphy, 417; 1 Hayw. 14; 1 Rep. Con. Ct.
121, 186; 2 Rep. Con. Ct. 239; 1 Bay, 101; 2 Nott & M'Cord, 88, 489; 1
Browne, 43, 176; 2 Binn. 72; 4 Binn. 127; 5 Binn. 457; 6 Binn. 129; 6 Serg.
& Rawle, 439; 8 Serg. & Rawle, 500, 533; 14 Serg. & R. 275; Bac. Ab. h. t.;
1 Bouv. Inst. n. 978-1099.
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BANKBOOK ,commerce. A book which persons dealing with a bank keep, in which
the officers of the bank enter the amount of money deposited by them, and
all notes or bills deposited by them, or discounted for their use.
BANK NOTE, contracts. A bank note resembles a common promissory note, (q.
v.) issued by a bank or corporation authorized to act as a bank. It is in
fact a promissory note, but such notes are not, for many purposes, to be
considered as mere securities for money; but are treated as money, in the
ordinary course and transactions of business, by the general consent of
mankind and, on payment of them, when a receipt is required, the receipts
are always given as for money, not as for securities or notes. 1 Burr. R.
457; 12 John. R. 200; 1 John. Ch. R. 231; 9 John. R. 120; 19 John. 144; 1
Sch. & Lef. 318, 319; 11 Ves. 662; 1 Roper, Leg. 3; 1 Ham. R. 189, 524; 15
Pick. 177; 5 G. & John. 58; 3 Hawks, 328; 5 J. J. Marsh. 643.
2. Bank notes are assignable by delivery. Rep. Temp. Hard. 53 9 East,
R. 48; 4 East, R. 510 Dougl. 236. The holder of a bank note is prima facie
entitled to prompt payment of it, and cannot be affected by the fraud of any
former holder in obtaining it, unless evidence be given to bring it home to
his privity. 1 Burr. 452; 4 Rawle, 185 13 East, R. 135 Dane's Ab. Index, h.
t.; Pow. on Mortg. lndex, h. t. U. S. Dig. h. t. Vide Bouv. Inst. Index, h.
t. Note; Promissory note; @Reissuable note.
3. They cannot be taken in execution. Cunning. on Bills, 537; Hardw.
Cases, 53; 1 Arch. Pr. 268 1 Wils. Rep. 9 Cro. Eliz. 746, pl. 25
BANK STOCK. The capital of a bank. It is usually divided in shares of a
certain amount. This stock is generally transferable on the books of the
bank, and considered as personal property. Vide Stock.
BANKER, com. law. A banker is one engaged in the business of receiving other
persons money in deposit, to be returned on demand discounting other
persons' notes, and issuing his own for circulation. One who performs the
business usually transacted by a bank. Private bankers are generally not
permitted.
2. The business of bankers is generally performed through the medium of
incorporated banks.
3. A banker may be declared a bankrupt by adverse proceedings against
him. Act of Congress of 19th Aug. 1841. See 1 Atk. 218; 2 H. Bl. 235; 1
Mont. B. L. 12.
4. Among the ancient Romans there were bankers called argentarii, whose
office was to keep registers of contracts between individuals, either to
loan money, or in relation to sales and stipulations. These bankers
frequently agreed with the creditor to pay him the debt due to him by the
debtor. Calvini Lex. Jurid.
BANKERS' NOTE, contracts. In England a distinction is made between bank
notes, (q. v.) and bankers' notes. The latter are promissory notes, and
resemble bank notes in every respect, except that they are given by persons
acting as private bankers. 6 Mod. 29; 3 Chit. Com. Law, 590; 1 Leigh's N. P.
338.
BANKRUPT. A person who has done, or suffered some act to be done, which is
by law declared an act of bankruptcy; in such case he may be declared a
bankrupt.
2. It is proper to notice that there is much difference between a
bankrupt and an insolvent. A man may be a bankrupt, and yet be perfectly
solvent; that is, eventually able to pay all his debts or, he may be
insolvent, and, in consequence of not having done, or suffered, an act of
bankruptcy. He may not be a bankrupt. Again, the bankrupt laws are intended
mainly to secure creditors from waste, extravagance, and mismanagement, by
seizing the property out of the hands of the debtors, and placing it in the
custody of the law; whereas the insolvent laws only relieve a man from
imprisonment for debt after he has assigned his property for the benefit of
his creditors. Both under bankrupt and insolvent laws the debtor is required
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to surrender his property, for the benefit of his creditors. Bankrupt laws
discharge the person from imprisonment, and his property, acquired after his
discharge, from all liabilities for his debts insolvent laws simply
discharge the debtor from imprisonment, or liability to be imprisoned, but
his after-acquired property may be taken in satisfaction of his former
debts. 2 Bell, Com. B. 6, part 1, c. 1, p. 162; 3 Am. Jur. 218.
BANKRUPTCY. The state or condition of a bankrupt.
2. Bankrupt laws are an encroachment upon the common law. The first in
England was the stat. 34 and 35 H. VIII., c. 4, although the word bankrupt
appears only in the title, not in the body of the act. The stat. 13 Eliz. c.
7, is the first that defines the term bankrupt, and discriminates bankruptcy
from mere insolvency. Out of a great number of bankrupt laws passed from
time to time, the most considerable are the statutes 13 Eliz. c. 7; 1 James
I., c. 19 21 James I., c. 19 5 Geo. II., c. 30. A careful consideration of
these statutes is sufficient to give am adequate idea of the system of
bankruptcy in England. See Burgess on Insolvency, 202-230.
3. The Constitution of the United States, art. 1, s. 8, authorizes
congress "to establish an uniform rule of naturalization, and uniform laws
on the subject of bankruptcies throughout the United States." With the
exception of a short interval during which bankrupt laws existed in this
country, this power lay dormant till the passage of the act of 1841, since
repealed.
4. Any one of the states may pass a bankrupt law, but no state bankrupt
or insolvent law can be permitted to impair the obligation of contracts; nor
can the several states pass laws conflicting with an act of congress on this
subject 4 Wheat. and the bankrupt laws of a state cannot affect the rights
of citizens of another state. 12 Wheat. It. 213. Vide 3 Story on the Const.
Sec. 1100 to 1110 2 Kent, Com. 321 Serg. on Const. Law, 322 Rawle on the
Const. c. 9 6 Pet. R. 348 Bouv. Inst. Index, h. t. Vide Bankrupt.
BANKS OF RIVERS, estates. By this term is understood what retains the river
in its natural channel, when there is the greatest flow of water.
2. The owner of the bank of a stream, not navigable, his in general the
right to the middle of the stream. Vide Riparian Proprietor.
3. When by imperceptible increase the banks on one side extend into the
river, this addition is called alluvion. (q. v.) When the increase is caused
by the sudden transfer of a mass of earth or soil from the opposite bank, it
is called an increase by avulsion. (q. v.)
BANNITUS. One outlawed or banished. See Calvini Lex.
BANS OF MATRIMONY. The giving public notice or making proclamation of a
matrimonial contract, and the intended celebration of the marriage of the
parties in pursuance of such contract, to the end that persons objecting to
the same, may have an opportunity to declare such objections before the
marriage is solemnized. Poth. Du Mariage, partie 2, c. 2. Vide Ban.
BAR FEE, Eng. law. A fee taken time out of mind by the sheriff for every
prisoner who is acquitted. Bac. Ab. Extortion.
BARONS OF EXCHEQUER, Eng. law. The name given to the five judges of the
Exchequer formerly these were baros of the realm, but now they are chosen
from persons learned in the law.
BEGGAR. One who obtains his livelihood by asking alms. The laws of several
of the states punish begging as an offence.
BEHAVIOUR. In old English, haviour without the prefix be. It is the manner
of having, holding, or keeping one's self or the carriage of one's self with
respect to propriety, morals, and the requirements of law. Surety to be of -
good behaviour is a larger requirement than surety to keep the peace.
Dalton, c. 122; 4 Burn's J. 355.
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BELIEF. The conviction of the mind, arising from evidence received, or from
information derived, not from actual perception by our senses, but from. the
relation or information of others who have had the means of acquiring actual
knowledge of the facts and in whose qualifications for acquiring that
knowledge, and retaining it, and afterwards in communicating it, we can
place confidence. " Without recurring to the books of metaphysicians' "says
Chief Justice Tilghman, 4 Serg. & Rawle, 137, "let any man of plain common
sense, examine the operations of, his own mind, he will assuredly find that
on different subjects his belief is different. I have a firm belief that,
the moon revolves round the earth. I may believe, too, that there are
mountains and valleys in the moon; but this belief is not so strong, because
the evidence is weaker." Vide 1 Stark. Ev. 41; 2 Pow. Mortg. 555; 1 Ves. 95;
12 Ves. 80; 1 P. A. Browne's R 258; 1 Stark. Ev. 127; Dyer, 53; 2 Hawk. c.
46, s. 167; 3 Wil. 1, s. 427; 2 Bl. R. 881; Leach, 270; 8 Watts, R. 406; 1
Greenl. Ev. Sec. 7-13, a.
BELOW. Lower in place, beneath, not so high as some other thing spoken of,
of tacitly referred to.
2. The court below is an inferior court, whose, proceedings may be
examined on error by a superior court, which is called the court above.
3. Bail below is that given to the sheriff in bailable actions, which
is so called to distinguish it from bail to t-he action, which is called
bail above. See Above; Bail above; Bail below.
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
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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. 5@eme part., c. 2, Sec. 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, Sec. 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.
BENEFIT OF DISCUSSION, civil law. The right which a surety has to cause the
property of the principal debtor to be applied in satisfaction of the
obligation in the first instance. See Civil Code of Lo. art. 3014 to 3020,
and Discussion.
BENEFIT OF DIVISION. In the civil law, which, in this respect, has been
adopted in Louisiana, although, when there are several sureties, each one is
bound for the whole debt, yet when one of them is sued alone, he has a right
to have the debt apportioned among all the solvent sureties on the same
obligation, so that he shall be compelled to pay his own share only. This is
called the benefit of division. Civil Code of Lo. art. 3014 to 3020. See 2
Bouv. Inst. n. 1414.
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BENEFIT OF INVENTORY, civil law. The benefit of inventory is the privilege
which the heir obtains of being liable for the charges and debts of the
succession, only to the value of the effects of the succession, in causing
an inventory of these effects within the time and manner proscribed by law.
Civil Code of Louis. art. 1025. Vide Poth. Traits des Successions, c. 3, s.
3, a. 2.
BENEVOLENCE, duty. The doing a kind action to another, from mere good will,
without any legal obligation. It is a moral duty only, and it cannot be
enforced by law. A good wan is benevolent to the poor, but no law can compel
him to be so.
BENEVOLENCE, English law. An aid given by the subjects to the king under a
pretended gratuity, but in realty it was an extortion and imposition.
TO BEQUEATH. To give personal property by will to another.
BEQUEST. A gift by last will or testament; a legacy. (q. v.) This word is
sometimes, though improperly used, as synonymous with devise. There is,
however, a distinction between them. A bequest is applied, more properly, to
a gift by will of a legacy, that is, of personal property; devise is
properly a gift by testament of real property. Vide Devise.
BESAILE or BESAYLE, domestic relations. The great-grandfather, proavus. 1 Bl.
Com. 186. Vide dile.
BEST EVIDENCE. Means the best evidence of which the nature of the case
admits, not the highest or strongest evidence which the nature of the thing
to be proved admits of: e. g. a copy of a deed is not the best evidence; the
deed itself is better. Gilb. Ev. 15; 3 Campb.. 236; 2 Starkey, 473 2 Campb.
605; 1 Esp. 127.
2. The rule requiring the best evidence to be produced, is to be
understood of the best legal evidence. 2 Serg. & R. 34; 3 Bl. Com. 368, note
10, by Christian. It is relaxed in some cases, as, e. g. where the words or
the act of the opposite party avow the fact to be proved. A tavern keeper's
sign avows his occupation; taking of tithes avows the clerical character;
so, addressing one as The Reverend T. S." 2 Serg. & R. 440 1 Saund. on
Plead. & Evid. 49.
BETROTHMENT. A contract between a man and a woman, by which they agree that
at a future, time they will marry together.
2. The requisites of this contract are 1. That it be reciprocal. 2.
That the parties be able to contract.
3. The contract must be mutual; the Promise of the one must be the
consideration for the promise of the other. It must be obligatory on both
parties at the same instant, so that each may have an action upon it, or it
will bind neither. 1 Salk. 24, Carth. 467; 5 Mod. 411; 1 Freem. 95; 3 Keb.
148; Co. Lit. 79 a, b.
4. The parties must be able to contract. if either be married at the
time of betrothment, the contract is void; but the married party cannot take
advantage of his own wrong, and set up a marriage or previous engagement,
as an answer to the action for the breach of the contract, because this
disability proceeds from the defendant's own act. Raym. 387 3 Just. 89; I
Sid. 112 1 Bl. Com. 438.
5. The performance of this engagement or completion of the marriage,
must be performed within a reasonable time. Either party may, therefore,
call upon the other to fulfill the engagement, and in case of refusal or
neglect to do so, within a reasonable time after request made, may treat the
betrothment as at an end, and bring action for the breach of the contract. 2
C. & P. 631.
6. For a breach of the betrothment, without a just cause, an action on
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the case may be maintained for the recovery of damages. See Affiance;
Promise of Marriage.
BETTER EQUITY. In England this term has lately been adopted. In the case of
Foster v. Blackston, the master of the rolls said, be could no where find in
the authorities what in terms was a better equity, but on a reference to all
the cases, he considered it might be thus defined: If a prior incumbrancer
did not take a security which effectually protected him against any
subsequent dealing to his prejudice, by the party who had the legal estate,
a second incumbrancer, taking a security which in its nature afforded him
that protection, had what might properly be called a better equity. 1 Ch.
Pr. 470, note. Vide 4 Rawle, R. 144 3 Bouv. Inst. n. 2462.
BEYOND SEA. This phrase is used in the acts of limitations of several of the
states, in imitation of the phraseology of the English statute of
limitations. In Pennsylvania, the term has been construed to signify out of
the United States. 9 S. & R. 288; 2 Dall. R. 217; 1 Yeates, R. 329. In
Georgia, it is equivalent to without the limits of the state; 3 Wheat. R.
541; and the same construction prevails in Maryland; 1 Har. & John. 350; 1
Harr. & M'H. 89; in South Carolina; 2 McCord, Rep. 331; and in
Massachusetts. 3 Mass. R. 271; 1 Pick. R. 263. Vide Kirby, R. 299; 3 Bibb.
R. 510; 3 Litt. R. 48; 1 John. Cas. 76. Within the four seas, infra quatuor
maria, and beyond the four seas, extra quatuor maria, in English law books
signify within and without the kingdom of England, or the jurisdiction of
the king of England. Co. Lit. 244 a; 1 Bl. Com. 457.
BIAS. A particular influential power which sways the judgment; the
inclination or propensity of the mind towards a particular object.
2. Justice requires that the judge should have no bias for or against
any individual; and that his mind should be perfectly free to act as the law
requires.
3. There is, however, one kind of bias which the courts suffer to
influence them in their judgments it is a bias favorable to a class of
cases, or persons, as distinguished from an individual case or person. A few
examples will explain this. A bias is felt on account of convenience. 1 Ves.
sen. 13, 14; 3 Atk. 524. It is also felt in favor of the heir at law, as
when there is an heir on one side and a mere volunteer on the other. Willes,
R. 570 1 W. Bl. 256; Amb. R. 645; 1 Ball & B. 309 1 Wils. R. 310 3 Atk. 747
Id. 222. On the other hand, the court leans against double portions for
children; M'Clell. R. 356; 13 Price, R. 599 against double provisions, and
double satisfactions; 3 Atk. R. 421 and against forfeitures. 3 T. R. 172.
Vide, generally, 1 Burr. 419 1 Bos. & Pull. 614; 3 Bos. & Pull. 456 Ves. jr.
648 Jacob, Rep. 115; 1 Turn. & R. 350.
BID, contracts. A bid is an offer to pay a specified price for an article
about to be sold at auction. The bidder has a right to withdraw his bid at
any time before it is accepted, which acceptance is generally manifested by
knocking down the hammer. 3 T. R. 148; Hardin's Rep. 181; Sugd. Vend. 29;
Babington on Auct. 30, 42; or the bid may be withdrawn by implication. 6
Penn. St. R. 486; 8, Id. 408. Vide 0@ffer.
BIDDER, contracts. One who makes an offer to pay a certain price for an
article which is for sale.
2. The term is applied more particularly to a person who offers a price
for goods or other property, while up for sale at an auction. The bidder is
required to act in good faith, and any combination between him and others,
to prevent a fair competition, would avoid the sale made to himself.
3. But there is nothing illegal in two or more persons agreeing
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together to purchase a property at sheriff's sale, fixing a certain price
which they are. willing to give, and appointing one of their number to be
the bidder. 6 Watts & Serg. 122.
4. Till the bid is accepted, the bidder may retract it. Vide articles,
Auction and Bid; 3 John. Cas. 29 6 John. R. 194; 8 John. R. 444 1 Fonbl. Eq.
b. 1, c. 4, Sec. 4, note (x).
BIENS. A French word, which signifies property. In law, it means property of
every description, except estates of freehold and inheritance. Dane's Ab. c.
133, a, 3 Com. Dig. h. t.; Co. Litt. 118, b; Sugd. Vend. 495.
2. In the French law, this term includes all kinds of property, real
and personal. Biens are divided into biens meubles, movable or personal
property; and biens immeubles, immovable property or real estate. This
distinction between movable and immovable property, is, however, recognized
by them, and gives rise in the civil, as well as in the common law, to many
important distinctions as to rights and remedies. Story, Confl. of Laws,
Sec. 13, note 1.
BIGAMUS, Canon law, Latin. One guilty of bigamy.
BIGAMY, crim. law, domestic relations. The willful contracting of a second
marriage when the contracting party knows that the first is still
subsisting; or it is the state of a man who has two wives, or of a woman who
has two husbands living at the same time. When the man has more than two
wives, or the woman more than two husbands living at the same time, then the
party is said to have committed polygamy, but the name of bigamy is more
frequently given to this offence in legal proceedings. 1 Russ. on Cr. 187.
2. In England this crime is punishable by the stat. 1 Jac. 1, c. 11,
which makes the offence felony but it exempts from punishment the party
whose husband or wife shall continue to remain absent for seven years before
the second marriage, without being heard from, and persons who shall have
been legally divorced. The statutory provisions in the U. S. against bigamy
or polygamy, are in general similar to, and copied from the statute of 1
Jac. 1, c. 11, excepting as to the punishment. The several exceptions to
this statute are also nearly the same in the American statutes, but the
punishment of the offence is different in many of the states. 2 Kent, Com.
69; vide Bac. Ab. h. t.; Com. Dig. Justices, Sec. 5; Merlin, Repert. mot
Bigamie; Code, lib. 9, tit. 9, 1. 18; and lib. 5, tit. 5, 1. 2.
3. According to the canonists, bigamy is three-fold, viz.: (vera,
interpretative, et similitudinaria,) real, interpretative and
similitudinary. The first consisted in marrying two wives successively,
(virgins they may be,) or in once marrying a widow; the second consisted,
not in a repeated marriage, but in marrying (v. g. meretricem vel ab alio
corruptam) a harlot; the third arose from two marriages indeed, but the one
metaphorical or spiritual, the other carnal. This last was confined to
persons initiated in sacred orders, or under the vow Of continence.
Deferriere's Tract, Juris Canon. tit. xxi. See also Bac. Abr. h. t.; 6
Decret, 1. 12. Also Marriage.
BILAN. A book in which bankers, merchants and traders write a statement of
all they owe and all that is due to them. This term is used in the French
law, and in the state of Louisiana. 5 N. S; 158. A balance sheet. See 3 N.
S. 446, 504.
BILATERAL CONTRACT, civil law. A contract in which both the contracting
parties are bound to fulfill obligations reciprocally towards each other;
Lec. Elem. Sec. 781; as a contract of sale, where one becomes bound to
deliver the, thing sold, and the other to pay the price of it. Vide
Contract; Synallagmatic contract.
BILINGUIS, English law. One who uses two tongues or languages. Formerly a
jury, part Englishmen and part foreigners, to give a verdict between an
Englishman and a foreigner. Vide Medietas Linguae, Plowd. 2. It is abolished
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in Pennsylvania. Act April 14, 1834, Sec. 149.
BILL, legislation. An instrument drawn or presented by a member or committee
to a legislative body for its approbation and enactment. After it has gone
through both houses and received the constitutional sanction of the chief
magistrate, where such approbation is requisite, it becomes a law. See
Meigs, R. 237.
BILL, chancery practice. A complaint in writing addressed to the chancellor,
containing the names of the parties to the suit, both complainant and
defendant, a statement of the facts on which the complainant relies, and the
allegations which he makes, with an averment that the acts complained of are
contrary to equity , and a prayer for relief and proper process. Its office
in a chancery suit, is the same as a declaration in an action at law, a
libel in a court of admiralty or an allegation in, the spiritual courts.
2. A bill usually consists of nine parts. 1. The address, which must be
to the chancellor, court or judge acting as such. 2. The second part
consists of the names of the plaintiffs and their descriptions; but the
description of the parties in this part of the bill does not, it seems,
constitute a sufficient averment, so as to put that fact in issue. 2. Ves. &
Bea. 327. 3. The third part is called the premises or stating part of the
bill, and contains the plaintiff's case. 4. In the fourth place is a general
charge of confederacy. 5. The fifth part consists of allegations of the
defendant's pretences, and charges in evidence of them. 6. The sixth part
contains the clause of jurisdiction and in averment that the acts complained
of are contrary to equity. 7. The seventh part consists of a prayer that the
parties answer the premises, which is usually termed the interrogatory part.
8. The prayer for relief sought forms the eighth part. And, 9. The ninth
part is a prayer for process. 2 Mad. Ch. 166; Blake's Ch. P. 35; 1 Mitf. Pl.
41. The facts contained in the bill, as far as known to the complainant,
must, in some cases, be sworn to be true; and such as are not known to him,
he must swear he believes to be true; and it must be signed by counsel; 2
Madd. Ch. Pr. 167; Story, Eq. Pl. Sec. 26 to 47; and for cases requiring an
affidavit, see, 3 Brow. Chan. Cas. 12, 24, 463; Bunb. 35; 2 Brow. 11 1 Fow.
Proc. 256 Mitf. Pl. 51; 2 P. Wms. 451; 3 Id. 77; 1 Atk. 450; 3 Id. 17, 132;
3 Atk. 132 Preced. in Ch. 332 Barton's Equity, 48 n. 1, 53 n. 1, 56 n. 1 2
Brow. Ch. Cas. 281, 319; 4 Id. 480
3. Bills may be divided into three classes, namely: 1. Original bills.
2. Bills not original. 3. Bills in the nature of original bills.
4. - 1. An original bill is one which prays the decree of the court,
touching some right claimed by the person exhibiting the bill, in opposition
to some right claimed by the person against whom the bill is exhibited.
Hinde, 19; Coop. Eq. Pl. 43. Original bills always relate to some matter not
before litigated in the court by the same persons, and standing in the same
interests. Mitf. Eq. Pl. by Jeremy, 34; Story, Eq. Pl., Sec. 16. They may be
divided into those which pray relief, and those which do not pray relief.
5. - 1st. Original bills praying relief are of three kinds. First.
Bills Praying the decree or order of the court, touching some right claimed
by the party exhibiting the bill, in opposition to some right, real or
supposed, claimed by the party against whom the bill is exhibited, or
touching some wrong done in violation of the plaintiff's right. Mitf. Eq.
Pl. 32.
6. - Secondly. A bill of interpleader, is one in which the person
exhibiting it claims no right in opposition to the rights claimed by the
person against whom the bill is exhibited, but prays the decree of the court
touching the rights of those persons, for the safety of the person
exhibiting the bill. Hinde, 20; Coop. Eq. Pl. 43; Mitf. Pl. 32. The
Practical Register defines it to be a bill exhibited by a third person, who,
not knowing to whom he ought of right to render a debt or duty, or pay his
rent, fears he may be hurt by some of the claimants, and therefore prays be
may interplead, so that the court may judge to whom the thing belongs, and
he be thereby safe on the payment. Pr. Reg. 78; Harr. Ch. Pr. 45; Edw. Inj.
393; 2 Paige, 199 Id. 570; 6 John. Ch. R. 445.
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7. The interpleader has been compared to the intervention (q. v.) of
the civil law. Gilb. For. Rom. 47. But there is a striking difference
between them. The tertius in our interpleader in equity, professes to have
no interest in the subject, and calls upon the parties who allege they have,
to come forward and discuss their claims: the tertius of the civil law, on
the other hand, asserts a right himself in the 'Subject, which two persons
are at the time actually contesting, and insists upon his right to join in
the discussion. A bill of interpleader may be filed, though the party has
not been sued at law, or has been sued by one only of the conflicting
claimants, or though the claim of one of the defendants is actionable at
law, and the other in equity. 6 Johns. Chan. R. 445. The requisites of a
bill of this kind are, 1. It must admit the want of interest in the
plaintiff in the subject matter of dispute. 2. The plaintiff must annex an
affidavit that there is no collusion between him and either of the parties.
3. The bill must contain an offer to bring the money into court, when there
is any due; the want of which is a ground of demurrer, unless the money has
actually been paid into court. Mitf. Eq. Pl. 49; Coop. Eq. Pl. 49; Barton,
Suit in Eq. 47, note 1. 4. The plaintiff should state his own rights, and
thereby negative any interest in the thing in controversy; and also should
state the several claims of the opposite parties; a neglect on this subject
is good cause of demurrer. Mitf. Eq. Pl. by Jeremy, 142; 2 Story on Eq. Sec.
821; Story, Eq. Pl. 292. 5. The bill should also show that there are persons
in esse capable of interpleading, and setting up opposite claims. Coop. Eq.
Pl. 46; 1 Mont. Eq. Pl. 234; Story, Eq. Pl. Sec. 295; Story on Eq. Sec. 821;
1 Ves. 248. 6. The bill should pray that the defendants set forth their
several titles, and interplead, settle, and adjust their demands between
themselves. The bill also generally prays an injunction to restrain the
proceedings of the claimants, or either of them, at law; and, in this case,
the bill should offer to bring the money into court and the court will not
in general act upon this part of the prayer, unless the money be actually
brought into court. 4 Paige's R. 384 6 John. Ch. R. 445.
8. Thirdly. A bill of certiorari, is one praying the writ of certiorari
to remove a cause from an inferior court of equity. Coop. El q. 44. The
requisites of this bill are that it state, 1st. the proceedings in the
inferior court; 2d. the incompetency of such court, by suggesting that the
cause is out of its jurisdiction; or that the witnesses live out of its
jurisdiction; or are not able, by age or infirmity, or the distance of the
place, to follow the suit there or that, for some other cause, justice is
not likely to be done-, 3d. the bill must pray a writ of certiorari, to
certify and remove the record and the cause to the superior court. Wyatt,
Pr. Reg. 82; Harr. Ch. Pr. 49; Story, Eq. Pl. Sec. 298. This bill is seldom
used in the United States.
9. - 2d. Original bills not praying relief are of two kinds. First,.
Bills to secure evidence, which are bills to perpetuate the testimony of
witnesses or bills to examine witnesses de bene esse. These will be
separately considered.
10. - 1. A bill to perpetuate the testimony of witnesses, is one which
prays leave to examine them, and states that the witnesses are old, infirm,
or sick, or going beyond the jurisdiction of the court, whereby the party is
in danger of losing the benefit of their testimony. Hinde, 20. It does not
pray for relief. Coop. Eq. Pl. 44.
11. In order to maintain such a bill, it is requisite to state on its
face all the material facts to support the jurisdiction. It must state, 1.
the subject-matter touching which the plaintiff is desirous of giving
evidence. Rep. Temp. Finch, 391; 4 Madd. R. 8, 10. 2. It must show that the
plaintiff has some interest in the subject-matter, which may be endangered
if the testimony in support of it be lost; and a mere expectancy, however
strong, is not sufficient. 6 Ves. 260 1 Vern. 105; 15 Ves. 136; Mitf. Eq.
Pl. by Jeremy, 51 Coop. Eq. Pl., 52. 3. It must state that the defendant
has, or pretends to have, or that he claims an interest to contest the title
of the plaintiff in the subject-matter of the proposed testimony. Coop. Pl.
56; Story, Eq. Pl. Sec. 302. 4. It must exhibit some ground of necessity for
perpetuating the evidence. Story, Eq. Pl. Sec. 303 Mitf. Eq. Pl. by Jeremy,
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52, 148 and note y; Coop. Eq. Pl. 53. 5. The right of which the bill is
brought to perpetuate the evidence or testimony, should be described with
reasonable certainty in the bill, so as to point the proper interrogations
on both sides to the true merits of the controversy. 1 Vern. 312; Coop. Eq.
Pl. 56. 6. It should pray leave to examine the witnesses touching the matter
stated, to the end that their testimony maybe preserved and perpetuated.
Mitf. Pl
52. A bill to perpetuate testimony differs from a bill to take testimony
de bene esse, in this, that the latter is sustainable only when there is a
suit already depending, while the former can be maintained only when no
present suit can be brought at law by the party seeking the aid of a court
to try his right. Story, Eq. Pl. Sec. 307. The canonists had a similar rule.
According to the canon law, witnesses could be examined before any action
was commenced, for fear that their evidence might be lost. x, cap. 5
Boehmer, n. 5 8 Toull. n. 23.
12. - 2. Bill to take testimony de bene esse. This bill, the name of
which is sufficiently descriptive of its object, is frequently confounded
with a bill to perpetuate testimony; but although it bears a close analogy
to it, ,it is very different. Bills to perpetuate testimony can be
maintained only, when no present suit can be maintained at law by the party
seeking the aid of the court to try his right; whereas bills to take
testimony de bene esse, are sustainable only in aid of a suit already
depending. 1 Sim. & Stu. 83. The latter may be brought by a person who is in
possession, or out of possession; and whether he be plaintiff or defendant
in the action at law. Story, Eq Pl. Sec. 307 and 303, note; Story on Eq.
1813, note 3. In many respects the rules which regulate the framing of bills
to perpetuate testimony, are applicable to bills to take testimony ae bene
esse.
13. - Secondly. A bill of discovery, emphatically so called, is one
which prays for the discovery of facts resting within the knowledge of the
person against whom the bill is exhibited, or of deeds, writings, or other
things in his custody or power. Hinde, 20; Blake's Ch. Pr. 37. Every bill,
except the bill of certiorari, may in truth, be considered a bill of
discovery, for every bill seeks a disclosure of circumstances relative to
the plaintiff's case; but that usually and emphatically distinguished by
this appellation is a bill for the discovery of facts, resting in the
knowledge of the defendant, or of deeds or writings, or other things in his
custody or power, and seeking no relief in consequence of the discovery.
14. This bill is commonly used in aid of the jurisdiction of some other
court as to enable the plaintiff to prosecute or defend an action at law.
Mitf. Pl. 52. "The plaintiff, in this species of bill, must be entitled to
the discovery he seeks, and shall only have a discovery of what is necessary
for his own title, as of deeds he claims under, and not to pry into that of
the defendant. 2 Ves. 445. See Blake's Ch. Pr. 45 Mitf. Pl. 52 Coop. Eq. Pl.
58 1 Madd. Ch. Pr. 196 Hare on Disc. passim Wagr. on Disc. passim.
15. The action ad exhibendum, in the Roman law, was not unlike a bill of
discovery. Its object was to force the party against whom it was instituted,
to exhibit a thing or a title in his power. It was always preparatory to
another, which was always a real action in the sense of the word in the
Roman law. See Action ad exhibendum; Merlin, Questions de Droit, tome i. 84.
16. - II . Bills not original. These are either in addition to, or a
continuance of an original bill, or both. Mitf. c. 1, s . 2; Story, Eq. Pl.
Sec. 388; .4 Bouv. Inst. n. 4100.
17. - 1st. Of the first class are, 1. A supplemental bill. This bill is
occasioned by some defect in a suit already instituted, whereby the parties
cannot obtain complete justice, to which otherwise the case by their bill
would have entitled them. It is used for the purpose of supplying some
irregularity discovered in the formation of the original bill, or some of
the proceedings there upon; or some defect in a suit, arising from events
happening since the points in the original were at issue, which give an
interest to20persons not parties to the suit. Blake's Ch. Pr. 50. See 3
Johns. Ch. R. 423.
18. It is proper to consider more minutely 1. in what cases such a bill
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may be filed; 2. its particular requisites.
19.- 1. A supplemental bill may be filed, 1st. whenever the imperfection
in the original bill arises from the omission of some material fact, which
existed before the filing of the bill, but the time has passed in which it
can be introduced into the bill by amendment,, Mitf. Eq. Pl. 55, 61, 325 but
leave of court must be obtained, before a bill which seeks to change the
original structure of the bill, and to introduce a new and different case,
can be filed. 2d. When a party necessary to the proceedings has been
omitted, and cannot be admitted by an amendment. Mitf. Eq. Pl. 61 6 Madd. R.
369; 4 John. Ch. R. 605. 3d. When, after the court has decided upon the suit
as framed, it appears necessary to bring some other matter before the court
to obtain the full effect of the decision; or before a decision has been
obtained, but after the parties are at issue upon the points in the original
bill, and witnesses have been examined, (in which case, an amendment is not
in general permitted,) some other point appears necessary to be made, or
some additional discovery is found requisite. Mitf. Eq. Pl. by Jeremy, 55;
Coop Eq. Pl. 73; 3 Atk. R. 110; 12 Paige, R. 200. 4th. When new events or
new matters have occurred since the filing of the bill; Coop. Eq. Pl. 74;
these events or matters, however, are confined to such as refer to and
support the rights and interests already mentioned in the bill. Story, Eq.
Pl. Sec. 336.
20. - 2. The supplemental bill must state the original bill, and the
proceedings thereon and when it is occasioned by an event which has occurred
subsequently to the original bill, it must state that event, and the
consequent alteration with regard to the parties. In general, the
supplemental bill must pray that all defendants appear and answer the
charges it contains. Mitf. Eq. Pl. by Jeremy, 75 Story, Eq. Pl. Sec. 343.
21. - 2. A bill of revivor, which is a continuance of the original bill,
when by death some party to it has become incapable of prosecuting or
defending a suit, or a female plaintiff has by marriage incapacitated
herself from suing alone. Mitf. Pl. 33, 70; 2 Madd. Ch. Pr. 526. See 3
Johns. Ch. R. 60: Story, Eq. Pl. Sec. 354, et. seq.
22. - 3. A bill of revivor and supplement. This is a compound of a
supple-mental bill and bill of revivor, and not only continues the suit,
which has abated by the death of the plaintiff, or the like, but supplies
any defects in the original bill, arising from subsequent events, so as to
entitle the party to relief on the whole merits of his case. 5 Johns. Ch R.
334; Mitf. Pl. 32, 74.
23. - 2d. Among the second class may be placed, 1. A cross bill. This is
one which is brought by a defendant in a suit against the plaintiff,
respecting the matter in question in that bill. Coop. Eq. Pl. 85 Mitf. Pl.
75.
24. A bill of this kind is usually brought to obtain, either a necessary
discovery, or full relief to all the parties. It frequently happens, and
particularly if any questions arises between two defendants to a bill, that
the court cannot make a complete decree without a cross bill, or cross bills
to bring every matter in dispute completely before the court, litigated by
the proper parties, and upon proper proofs. In this case it becomes
necessary for some one of the defendants to the original bill to file a bill
against the plaintiff and other defendants in that bill, or some of them,
and bring the litigated point properly before the court.
25. A cross bill should state the original bill, and the proceedings
thereon, and the rights of the party exhibiting the bill which are necessary
to be made the subject of a cross litigation, or the grounds on which he
resists the claims of the plaintiff in the original bill, if that is the
object of the new bill.
26. A cross bill may be filed to answer the purpose of a plea puis
darrein continuance at the common law. For example, where, pending a suit,
and after replication and issue joined, the defendant having obtained a
release and attempted to prove it viva voce at the bearing, it was
determined that the release not being in issue in the cause, the court could
not try the facts, or direct a trial at law for that purpose, and that a new
bill must be filed to put the release in issue. Mitf. Pl. 75, 76 Coop. Eq.
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Pl. 85; 1 Harr. Ch. Pr. 135.
27. A cross bill must be brought before publication is passed on the
first bill, 1 Johns. Ch. R. 62, and not after, except the plaintiff in the
cross bill go to the hearing on the depositions already published; because
of the danger of perjury and subornation, if the parties should, after
publication of the former depositions, examine witnesses, de novo, to the
same matter before examined into. 7 Johns. Ch. Rep. 250; Nels. Ch. R. 103.
28. - 2. A bill of review. Bills of review are in the nature of writs of
error. They are brought to have decrees of the court reviewed, altered, or
reversed, and there are two sorts of these bills. The first is brought where
the decree has been signed and enrolled and the second, where the decree has
not been signed and enrolled. 1 Ch. Cas. 54; 3 P. Wms. 371. The first of
these is called, by way of preeminence, a bill of review; while the other is
distinguished by the appellation of a bill in the nature of a bill of
review, or a supplemental bill iii the nature of a bill of review. Coop. Eq.
Pl. 88; 2 Madd. Ch. Pr. 537.
29. A bill of review must be either for error in point of law; 2 Johns.
C. R. 488; Coop. Eq. Pl. 89; or for some new matter of fact, relevant to the
case, discovered since publication passed in the cause; and which could not,
with reasonable diligence, have been discovered before. 2 Johns. C. R. 488;
Coop. Eq. Pl. 94. See 3 Johns. R. 124,
30. - 3. Bill to impeach a decree on the ground of fraud. When a decree
has been obtained by fraud, it may be impeached by original bill, without
leave of court. As the principal point in issue, is the fraud in obtaining
it, it must be established before the propriety of the decree can be
investigated, and the fraud must be distinctly stated in the bill. The
prayer must necessarily be varied according to the nature of the fraud used,
and the extent of its operation in obtaining an improper decision of the
court. When the decree to set aside a fraudulent decree has been obtained,
the court will restore the parties to their former situation, whatever their
rights may be. Mitf. Eq. Pl. 84; Sto. Eq. Pl. Sec. 426.
31. - 4. Bill to suspend a decree. The operation of a decree may be
suspended under special circumstances, or avoided by matter subsequent to
the decrees upon a new bill for that purpose. See 1 Ch. Cas. 3, 61 2 Ch .
Cal 8 Mitf. Eq. Pl. 85 , 86.
32. - 5. Bill to carry a decree into execution. This is one which is
filed when from the neglect of parties, or some other cause, it may become
impossible to carry a decree into execution without the further decree of
the court. Hinde, 68; 1 Harr. Ch. 148.
33. - 6. Bills partaking of the qualities of some one or more of other
bills. These are,
34. First. Bill in the nature of a bill of revivor. A bill in the nature
of a bill of revivor, is one which is filed when the death of a party, whose
interest is not determined by his death, is attended with such a
transmission of his interest, that the title to it, as well as the person
entitled, may be litigated in the court of chancery, as in the case of a
devise of real estate, the suit is not permitted to be continued by bill of
revivor. 1 Ch. Cas. 123; Id. 174; 3 Ch. Rep. 39; Mosely, R. 44. In such
cases an original bill, upon which the title may be litigated, must be
filed, and this bill will have so far the effect of a bill of revivor, that
if the, title of the representative by the act of the deceased party is
established, the same benefit may be had of the proceedings upon the former
bill, as if the suit had been continued by bill of revivor. 1 Vern. 427; 2
Vern. 548 Id. 672; 2 Bro. P. C. 529; 1 Eq. Cas. Ab. 83; Mitf. Pl. 66, 67.
35. Secondly. Bill in the nature. of a supplemental bill. An original
bill in the nature of a supplemental bill, is one filed when the interest of
the plaintiff or defendant, suing or defending, wholly determines, and the
same property becomes vested in another person not claiming under him.
Hinde, 71; Blake's Ch. Pr. 38. The principal difference between this and a
supplemental bill, seems to be, that a supplemental bill is applicable to
such cases only, where the same parties or the same interests remain before
the court; whereas, an original bill in the nature of a supplemental bill,
is properly applicable where new parties, with new interests, arising from
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events occurring since the institution of the suit, are brought before the
court. Coop. Eq. Pl. 75; Story, Eq. Pl. Sec. 345.
36. Thirdly. Bill in the nature of a bill of review. A bill in the
nature of a bill of review, is one brought by a person not bound by a
decree, praying that the same may be examined and reversed; as where a
decree is made against a person who has no interest at all in the matter in
dispute, or had not an interest sufficient to render the decree against him
binding upon some person claiming after him. Relief may be obtained against
error in the decree, by a bill in the nature of a bill of review. This bill
in its frame resembles a bill of review, except that instead of praying that
the former decree may be reviewed and reversed, it prays that the cause may
be heard with respect to the new matter made the subject of the supplemental
bill, at the same time that it is reheard upon the original bill; and that
the plaintiff may have such relief as the nature of the case made by the
supplemental bill may require. 1 Harr. Ch. P. 145.
37. There are also bills which derive their names from the object which
the complainant has in view. These will be separately considered.
38.- 1. Bill of foreclosure. A bill of foreclosure is one filed by a
mortgagee against the mortgagor, for the purpose of having the estate, sold,
thereby to obtain the sum mortgaged on the premises, with interest and
costs. 1 Madd. Ch. Pr. 528. As to the persons who are to be made parties to
a bill of foreclosure, see Story, Eq. Pl. Sec. 199-202.
39. - 2. Bill of information. A bill of information is a bill instituted
in behalf of the state, or those whose rights are the object of its care and
protection. It is commenced by information exhibited in the name of the
attorney-general, and differs from other bills little more than in name. If
the suit immediately concerns the right of the state, the information is
generally exhibited without a relator. If it does not immediately concern
those rights, it is conducted at the instance and under the immediate
direction of, some person whose name is inserted in the information, and is
termed the relator; the officers of the state, in such or the like cases,
are not further concerned than as they are instructed and advised by those
whose rights the state is called upon to protect and establish. Blake's Ch.
Pl. 50; see Harr. Ch. Pr. 151.
40. - 3. Bill to marshal assets. A bill to marshal assets is one filed
in favor of simple contract creditors, and of legatees, devisees, and heirs,
but not in favor of next of kin, to prevent specialty. creditors from
exhausting the personal estate. See Marshaling of Assets.
41. - 4. Bill to marshal securities. A bill to marshal securities is one
which is filed against a party who has two funds by which his debt is
secured, by a person having an interest in only one of those funds. As if A
has two mortgages and B has but one, B has a right to throw A upon the
security which B cannot touch. 2 Atk. 446; see 8 Ves. 388, 395. This last
case contains a luminous exposition in all its bearings. In Pennsylvania,
and perhaps in some other states, the object of this bill is reached by
subrogation, (q. v.) that is, by substituting the creditor, having but one
fund to resort to, to the rights of the other creditor, in respect to the
other fund.
42. - 5. Bill for a new trial. This is a bill filed in a court of equity
praying for an injunction after judgment at law, when there is any fact,
which renders it against conscience to execute such judgment, and of which
the injured party could not avail himself in a court of law-, or, if he
could, was prevented by fraud or accident, unmixed with any fault or
negligence of himself or his agents. Mitf. Pl. by Jer. 131; 2 Story Eq. Sec.
887. Of late years bills of this description are not countenanced. Id.201
John. Ch. R. 432 6 John. Ch. R. 479.
43. - 6. Bill of peace. A bill of peace is one which is filed when a
person has a right which may be controverted by various persons, at
different times, and by different actions. In such a case the court will
prevent a multiplicity of suits, by directing an issue to determine the
right, and ultimately grant an injunction. 1 Madd. Ch. Pr. 166; 1 Harr. Ch.
Pr. 104; Blake's Ch. Pr. 48; 2 Story, Eq. Jur. Sec. 852 to 860; Jeremy on
Eq. Jurisd. 343 2 John. Ch. R. 281; 8 Cranch, R. 426.
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44. There is another class of cases in which a bill of peace is now
ordinarily applied; namely, when the plaintiff, after repeated and
satisfactory trials, has established his right at law, and is still in
danger of new attempts to controvert it. In order to quiet the possession of
the plaintiff, and to suppress future litigation, courts of equity, under
such circumstances, will interfere, and grant a perpetual injunction. 3
John. R. 529; 8 Cranch, R. 462; Mit. Pl. by Jeremy, 143; 2 John. Ch. R. 281;
Ed. on Inj. 356.
45. - 7. Bill quia timet. A bill quia timet, is one which is filed when
a person is entitled to property of a personal nature after another's death,
and has reason to apprehend it may be destroyed by the present possessor; or
when he is apprehensive of being subjected to a future inconvenience,
probable or even possible to happen or be occasioned by the neglect,
inadvertence, or culpability of another. Upon a proper case being made out,
the court will, in one case, secure the property for the use of the party
(which is the object of the bill) by compelling the person in possession of
it, to give a proper security against any subsequent disposition or willful
destruction and in the other case, they will quiet the party's apprehension
of future inconvenience, by removing the causes which may lead to it. 1
Harr. Ch. Pr. 107; 1 Madd. Ch. Pr. 218: Blake's Ch. Pr. 37, 47; 2 Story, Eq.
Jur. Sec. 825 to 851. Vide, generally, Bouv. Inst. Index, h. t.
BILL, merc. law. An account containing the items of goods sold, or of work
done by one person against another. It differs from an account stated (q.
v.) in this, that the latter is a bill approved and sanctioned by the
debtor, whereas a bill is made out by the creditor alone.
BILL OF ADVENTURE, com. law, contracts. A writing signed by a merchant, to
testify that the goods shipped on board a certain vessel belong to another
person who is to take the hazard, the subscriber signing only to oblige
himself to account to him, for the proceeds.
BILL OF ATTAINDER, legislation, punishment. An act of the legislature by
which one or more persons are declared to be attainted, and their property
confiscated.
2. The Constitution of the United States declares that no state shall
pass any bill of attainder.
3. During the revolutionary war, bills of attainder, and ox post facto
acts of confiscation, were passed to a wide extent. The evils resulting from
them, in times of more cool reflection, were discovered to have far
outweighed any imagined good. Story on Const. Sec. 1367. Vide Attainder;
Bill of Pains and Penalties.
BILL OF PAINS AND PENALTIES. A special act of the legislature which inflicts
a punishment, less than death, upon persons supposed to be guilty of high
offences, Such as; treason and felony, without any conviction in the
ordinary course of judicial proceedings. 2 Wood. Law Lect. 625. It differs
from a bill of attainder in this, that the punishment inflicted by the
latter is death.
2. The Constitution of the United States Provides that "no bill of
attainder shall be passed." It has been judicially said by the supreme court
of the United States, that " a bill of attainder may affect the life of an
individual, or i-nay confiscate his property, or both." 6 Cranch, R. 138. in
the sense of the constitution, then, it seems that bills of attainder
include bills of pains and penalties. Story, Const. Sec. 1338. Vide
Attainder; Bills of Attainder.
BILL OF PARCELS, merc. law. An account containing in detail the names of the
items which compose a parcel or package of goods; it is usually transmitted
with the goods to the purchaser, in order that if any mistake have been
made, it may be corrected.
BILL OF PARTICULARS, practice. A detailed informal statement of a plaintiff
is cause of action, or of the defendants's set-off.
2. In all actions in which the plaintiff declares generally, without
specifying his cause of action, a judge upon application will order him to
give the defendant a bill of the particulars, and in the meantime stay,
proceedings. 3 John. R. 248. And when the defendant gives notice or pleads a
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set-off, he will be required to give a bill of the particulars of his set-
off, on failure of which he will be precluded from giving any evidence in
support of it at the trial. The object in both cases is to prevent surprise
and procure a fair trial. 1 Phil. Ev. 152; 3 Stark Ev. 1055. The bill of
particulars is an account of the items of the demand, and states in what
manner they arose. Mete. & Perk. Dig. h. t. For forms, see Lee's Dict. of
Pr., Particulars of demand.
BILL OF PRIVILEGE, Eng. law. A process issued out of the court against an
attorney, who is privileged from arrest, instead of process demanding bail.
3 Bl. Com. 289.
BILL OF PROOF. In the mayor's court, London, the claim made by a third
person to the subject-matter in dispute between two others in a suit there,
is called bill of Proof. It is somewhat similar to an intervention. (q. v.)
3 Chit. Com. Law, 633; 2 Chit. Pr. 492; 1 Marsh, R. 233.
BILL OF SUFFRANCE, Eng. law. The name of a license granted at the custom
house to a merchant, authorizing him to trade from one English port to
another without paying custom. Cunn. L. D.
BILL OF RIGHTS. English law. A statute passed in the reign of William and
Mary, so called, because it declared the true rights of British subjects. W.
& M. stat. 2, c. 2.
BOCKLAND, Eng. law. The name of an ancient allodial tenure, which was exempt
from feudal services. Bac. Ab. Gavelkind, A Spelman's English Works, vol. 2,
233.
BODY. A person.
2. In practice, when the sheriff returns cepi corpus to a capias, the
plaintiff may obtain a rule, before special bail has been entered, to bring
in the body and this must be done either by committing the defendant or
entering special bail. See Dead Body.
BODY POLITIC, government, corporations. When applied to the government this
phrase signifies the state.
2. As to the persons who compose the body politic, they take
collectively the name, of people, or nation; and individually they are
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citizens, when considered in relation to their political rights, and
subjects as being submitted to the laws of the state.
3. When it refers to corporations, the term body politic means that the
members of such corporations shall be considered as an artificial person.
BOILARY. A term used to denote the water which arises from a salt well,
belonging to one who has no right to the soil. Ejectment may be maintained
for it. 2 Hill, Ab. c. 14, Sec. 5; Co. Litt. 4 b.
BONA, goods and chattels. In the Roman law, it signifies every kind of
property, real, personal, and mixed, but chiefly it was applied to real
estates; chattels being chiefly distinguished by the words, effects,
movables, &c. Bona were, however, divided into bona mobilia, and bona
immobilia. It is taken in the civil law in nearly the sense of biens (q. v.)
in the French law.
BONA FIDE. In or with good faith.
2. The law requires all persons in their transactions to act with good
faith and a contract where the parties have not acted bona fide is void at
the pleasure of the innocent party. 8 John. R. 446; 12 John. R. 320; 2 John.
Ch. R. 35. If a contract be made with good faith, subsequent fraudulent acts
will not vitiate it; although such acts may raise a presumption of
antecedent fraud, and thus become a means of proving the want of good faith
in making the contract. 2 Miles' Rep. 229; and see also, Rob. Fraud. Conv.
33, 34; Inst. 2, 6 Dig. 41, 3, 10 and 44; Id. 41, 1, 48; Code, 7, 31; 9 Co.
11; Wingate's Maxims, max. 37; Lane, 47; Plowd. 473; 9 Pick. R. 265; 12
Pick. R. 545; 8 Conn. R. 336; 10 Conn. R. 30; 3 Watts, R. 25; 5 Wend. R. 20,
566. In the civil law these actions are called (actiones) bonae fidei, in
which the judge has a. more unrestrained power (liberior potestas) of
estimating how much one person ought to give to or do, for another; whereas,
those actions are said to be stricti juris, in which the power of the judge
is confined to the agreement of the parties. Examples of the foraier are the
actions empti-venditi, locati-conducti, negitiorum gestorum, &c.; of the
latter, the actions ex mutus, ex chirographo, ex stipilatu, ex indebito,
actions proescriptis verbis, &c.
BONA GESTURA. Good behaviour.
BONA MOBILIA. Movable goods, personal property.
BONA NOTABILIA Engl. ecclesiastical law. Notable goods. When a person dies
having at the time of his death, goods in any other diocese, beside's the
goods in the diocese where he dies, amounting to the value of five pounds in
the whole, he is said to have bona notabilia; in which case proof of his
will, or granting letters of administration, belongs to the archbishop of
the province. 1 Roll. Ab. 908; Toll. Ex. 51 Williams on Ex. Index, h. t.
BONA PERITURA. Perishable goods.
2. An executor, administrator, or trustee, is bound to use due
diligence in disposing of perishable goods, such as fattened cattle, grain,
fruit, or any other article which may be worse for keeping. Bac. Ab.
Executors, &c. D; 11 Vin. Ab. 102; 1 Roll. Ab. 910; 5 Cro. Eliz.518;
Godb.104; 3 Munf. R. 288; 1 Beat. R. 5,14; Dane's Ab. Index, h. t.
3. In Pennsylvania, when goods are attached, they may be sold by order
of court, when they are of a perishable nature. Vide Wesk. on Ins. 390;
Serg. on Attachm. Index.
BONA VACANTIA. Goods to which no one claims a property, as, shipwrecks,
treasure trove, &c.; vacant goods.
BONA WAVIATA. Goods waived or thrown away by a thief, in his flight, for
fear of being apprehended.
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BOND, contract. An obligation or bond is a deed whereby the obligor, obliges
himself, his heirs, executors and administrators, to pay a certain sum of
money to another at a day appointed. But see 2 Shepl. 185. If this be all,
the bond is called a single one, simplex obligatio; but there is generally a
condition added, that if the obligor pays a smaller sum, or does, or omits
to do some particular act, the obligation shall be void. 2 Bl. Com. 840. The
word bond ex vi termini imports a sealed instrument. 2 S. & R. 502; 1 Bald.
R. 129; 2 Porter, R. 19; 1 Blackf. R. 241; Harp. R. 434; 6 Verm. R. 40. See
Condition; Interest of money; Penalty. It is proposed to consider: 1. The
form of a bond, namely, the words by which it may be made, and the
ceremonies required. 2. The condition. 3. The performance or discharge.
2.- I. 1. There must be parties to a bond, an obligor and obligee : for
where a bond was made with condition that the obligor should pay twenty
pounds to such person or persons; as E. H. should, by her last will and
testament in writing, name and appoint the same to be paid, and E. H. did
not appoint any person to, whom the same should be paid, it was held that
the money was not payable to the executors of E. H. Hob. 9. No particular
form of words are essential to create an obligation, but any words which
declare the intention of the parties, and denote that one is bound to the
other, will be sufficient, provided the ceremonies mentioned below have been
observed. Shep. Touch. 367-8; Bac. Abr. Obligations, B; Com. Dig.
Obligations, B 1.
3. - 2. It must be in writing, on paper or parchment, and if it be made
on other materials it is void. Bac. Abr. Obligations, A.
4. - 3. It must be sealed, though it is not necessary that it should be
mentioned in the writing that it is sealed. As to what is a sufficient
sealing, see the above case, and the word Seal.
5. - 4. It must be delivered by the party whose bond it is, to the
other. Bac. Abr. Obligations, C. But the delivery and acceptance may be by
attorney. The date is not considered of the substance of a deed, and
therefore a bond which either has no date or an impossible one is still
good, provided the real day of its being dated or given, that is, delivered,
can be proved. 2 Bl. Com. 304; Com. Dig. Fait, B 3; 3 Call, 309. See Date.
6. - II. The condition is either for the payment of money, or for the
performance of something else. In the latter case, if the condition be
against some rule of law merely, positively impossible at the time of making
it, uncertain or insensible, the condition alone is void, and the bond shall
stand single and unconditional; for it is the folly of the obligor to enter
into such an obligation, from which he can never be released. If it be to do
a thing malum in se, the obligation itself is void, the whole contract being
unlawful. 2 Bl. Com. 340; Bac. Abr. Conditions, K, L; Com. Dig. Conditions,
D 1, D 2, D 3, D 7, D 8.
7. - III. 1. When, by the condition of an obligation, the act to be
done to the obligee is of its own nature transitory, as payment of money,
delivery of charters, or the like, and no time is limited, it ought to be
performed in convenient time. 6 Co. 31 Co. Lit. 208; Roll. Abr. 436.
8. - 2. A payment before the day is good; Co. Lit. 212, a; or before
action brought. 10 Mass. 419; 11 Mass. 217.
9. - 3. If the condition be to do a thing within a certain time, it may
be performed the last day of the time appointed. Bac. Abr. Conditions, P 3.
10. - 4. If the condition be to do an act, without limiting any time, he
who has the benefit may do it at what time he pleases. Com. Dig. Conditions,
G 3.
11. - 5. When the place where the act to be performed is agreed upon,
the party who is to perform it, is not obliged to seek the opposite party
elsewhere; nor is he to whom it is to be performed bound to accept of the
performance in another place. Roll. 445, 446 Com. Dig. Conditions, G 9 Bac.
Abr. Conditions, P 4. See Performance.
12. - 6. For what amounts to a breach of a condition in a bond see Bac.
Abr. Conditions, 0; Com. Dig. Conditions, M; and this Dict. tit. Breach.
BOND TENANT, Eng. law. Copyholders and customary tenants are sometimes so
called. Calth. on Copyh. 51, 54.
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BONDAGE. Slavery.
BONIS NON AMOVENDIS. The name of a writ addressed to the sheriff, when a
writ of error has been brought, commanding that the person against whom
judgment has been obtained, be not suffered to remove his goods till the
error be tried and determined. Reg. Orig. 131.
BONO ET MALO. The name of a special writ of jail delivery, which formerly
issued of course for each particular prisoner. 4 Bl. Com. 270.
BONUS, contrads. A premium paid to a grantor or vendor; as, e. g. the bank
paid a bonus to the state for its charter. A consideration given for what is
received.
BOOK-LAND, English law. Land, also called charter-land, which was held by
deed under certain rents and fee services, and differed in nothing from free
socage land. 2 Bl. Com. 90. See 2 Spelman's English Works, 233, tit. Of
Ancient Deeds and Charters.
BOOKS, commerce, accounts. Merchants, traders, and other persons, who are
desirous of understanding their affairs, and of explaining them when
necessary, keep, 1. a day book; 2. a journal; 3. a ledger; 4. a letter book;
5. an invoice book; 6. a cash book; 7. a bill book; 8. a bank book; and 9. a
cheek book. The reader is referred to these several articles. Commercial
books are kept by single or by double entry.
BREATH, med. juris. The air expelled from the chest at each expiration.
2. Breathing, though a usual sign of life, is not conclusive that a
child was wholly born alive, as breathing may take place before the whole
delivery of the mother is complete. 5 Carr. & Payn, 329; S. C. 24 E. C. L.
R. 344. Vide Birth; Life; Infanticide.
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BREPHOTROPHI, civil law. Persons appointed to take care of houses destined
to receive foundlings. Clef des Lois Rom. mot Administrateurs.
BREVE, practice. A writ in which the cause of action is briefly stated,
hence its name. Fleta, lib. 2, c. 13, Sec. 25; Co. Lit. 73 b.
2. Writs are distributed into several classes. Some are called brevia
formata, others brevia de cursu, brevia judicialia, or brevia magistralia.
There is a further distinction with respect to real actions into brevia
nominata and innominata. The former, says Bacon, contain the time, place and
demand very particularly; and therefore by such writ several lands by
several titles cannot be demanded by the same writ. The latter contain only
a general complaint, without expressing time, damages, &c., as in trespass
quare clausum fregit, &o., and therefore several lands coming to the
demandant by several titles may be demanded in such writ. F. N. B. 209; 8
Co. 87; Kielw. 105; Dy. 145; 2 Brownl. 274; Bac. Ab. Actions in General, C.
See Innominate contracts.
BREVIA ANTICIPANTIA. This name is given to a number of writs, which are also
called writs of prevention. See Quia Ti. met.
BREVIA FORMATA, Eng law. The collection of writs found in the Registrum
Brevium was so called. The author of Fleta says, these writs were formed
upon their cases. They were different from the writs de cursu, which were
approved by the council of the whole realm, and could not be changed without
the will of the same. Fleta, lib. 2, c. 13, Sec. 2. See 17 S. & R. 194-5,
and authorities there cited.
BROKERS, commerce. Those who are engaged for others, in the negotiation of
contracts, relative to property, with the custody of which they have no
concern. Paley on Agency, 13; see Com. Dig. Merchant, C.
2. A broker is, for some purposes, treated as the agent of both
parties; but in the first place, he is deemed the agent only of the person
by whom he is originally employed; and does not become the agent of the
other until the bargain or contract has been definitely settled, as to the
terms, between the principals. Paley on Ag. by Lloyd, 171, note p; 1 Y. &,
J. 387.
3. There are several kinds of brokers, as, Exchange Brokers, such as
negotiate in all matters of exchange with foreign countries.
4. Ship Brokers. Those who transact business between the owners of
vessels, and the merchants who send cargoes.
5. Insurance Brokers. Those who manage the concerns both of the insurer
and the insured.
6. Pawn Brokers. Those who lend money, upon goods, to necessitous
people, at interest.
7. Stock Brokers. Those employed to buy and sell shares of stocks in
corporations and companies. Vide Story on Ag. Sec. 28 to 32; T. L. h. t.;
Maly. Lex Mer. 143; 2 H. Bl. 555; 4 Burr, R. 2103; 4 Kent, Com. 622, note d,
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3d ed.; Liv. on Ag. Index, h. t.; Chit. Com. L. Index, h. t.; and articles
Agency; Agent; Bought note; Factor; Sold note.
BRUISE, med. jurisp. An injury done with violence to the person, without
breaking the skin; it is nearly synonymous with contusion. (q . v.) 1. Ch.
Pr. 38; vide 4 Car. & P. 381, 487, 558, 565; Eng. C. L. Rep. 430, 526, 529.
Vide Wound.
BUBBLE ACT, Eng. law. The name given to the statute 6 Geo. I., c. 18, which
was passed in 1719, and was intended " for restraining several extravagant
and unwarrantable practices therein mentioned." See 2 P. Wms. 219.
BUGGERY, crim. law. The detestable crime of having commerce contrary to the
order of nature, by mankind with mankind, or with brute beasts, or by
womankind with brute beasts. 3 Inst. 58; 12 Co. 36; Dane's Ab. Index, h. t.;
Merl. Repert. mot Bestialie. This is a highly penal offence.
BUILDING, estates. An edifice erected by art, and fixed upon or over the
soil, composed of stone, brick, marble, wood, or other proper substance,
'Connected together, and designed for use in the position in which it is so
fixed. Every building is an accessory to the soil, and is, therefore, real
estate: it belongs to the owner of the soil. Cruise, tit. 1, S. 46. Vide 1
Chit. Pr. 148, 171; Salk. 459; Hob. 131; 1 Mete. 258; Broom's Max. 172.
BULK, contracts. Said to be merchandise which is neither counted) weighed,
nor measured.
2. A sale by bulk, is a sale of a quantity of goods,, such as they are,
without measuring, counting, or weighing. Civ. Code of Louis. a. 3522, n. 6.
BULL, eccles. law. A letter from the pope of Rome, written on parchment, to
which is attached a leaden seal, impressed with the images of Saint Peter
and Saint Paul.
2. There are three kinds of apostolical rescripts, the brief, the
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signature, and the bull, which last is most commonly used in legal matters.
Bulls may be compared to the edicts and letters-patent of secular princes:
when the bull grants a favor, the seal is attached by means of silken
strings; and when to direct execution to be performed, with flax cords.
Bulls are written in Latin, in a round and Gothic hand. Ayl. Par. 132; Ayl.
Pand. 21; Mer. Rep. h. t.
BULLETIN. An official account of public transactions on matters of
importance. In France, it is the registry of the laws.
BULLION. In its usual acceptation, is uncoined gold or silver, in bars,
plates, or other masses. 1 East, P. C. 188.
2. In the acts of Congress, the term is also applied to copper properly
manufactured for the purpose of being coined into money. For the acts of
Congress, authorizing the coinage of bullion for private individuals, see
Act of April 2, 1792, s. 14, 1 Story, 230; Act of May 19, 1828, 4 Sharsw.
cont. of Story's Laws U. S. 2120; Act of June 28, 1834, Id. 2376; Act of
January 18, 1837, Id. 2522 to 2529. See, for the English law on the subject
of crimes against bullion, 1 Hawk. P. C. 32 to 41.
BUOY. A piece of wood, or an empty barrel, floating on the water, to show
the place where it is shallow, to indicate the danger there is to
navigation. The act of Congress, approved the 28th September, 1850, enacts,
" that all buoys along the coast, in bays, harbors, sounds, or channels,
shall be colored and numbered, so that passing up the coast or sound, or
entering the bay, harbor or channel, red buoys with even numbers, shall be
passed on the starboard hand, black buoys, with uneven numbers, on the port
hand, and buoys with red and black stripes on either hand. Buoys in channel
ways to be colored with alternate white and black perpendicular stripes."
BURDEN OF PROOF. This phrase is employed to signify the duty of proving the
facts in dispute on an issue raised between the parties in a cause.
2. The burden of proof always lies on the party who takes the
affirmative in pleading. 1 Mass. 71, 335; 4 Mass. 593; 9 Pick. 39.
3. In criminal cases, as every man is presumed to be innocent until the
contrary is proved, the burden of proof rests on the prosecutor, unless a
different provision is expressly made by statute. 12 Wheat. See Onus
probandi.
BUREAU. A French word, which literally means a large writing table. It is
used figuratively for the place where business is transacted: it has been
borrowed by us, and used in nearly the same sense; as, the bureau of the
secretary of state. Vide Merl. Repert. h. t.
BUREAUCRACY. The abuse of official influence in the affairs of government;
corruption. This word has lately been adopted to signify that those persons
who are employed in bureaus abuse their authority by intrigue to promote
their own benefit, or that of friends, rather than the public good. The word
is derived from the French.
BURGAGE, English law. A species of tenure in socage; it is where the king or
other person is lord of an ancient borough, in which the tenements are held
by a rent certain. 2 B1. Com. 82.
BURGESS. A magistrate of a borough; generally, the chief officer of the
corporation, who performs, within the borough, the same kind of duties which
a mayor does in a city. In England, the word is sometimes applied to all the
inhabitants of a borough, who are called burgesses sometimes it signifies
the representatives of a borough in parliament.
BURGH. A borough; (q. v.) a castle or town.
BURGLAR. One who commits a burglary. (q. v.)
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BURGLARIOUSLY, pleadings. This is a technical word, which must be introduced
into an indictment for burglary; no other word will answer the same purpose,
nor will any circumlocution be sufficient. 4 Co. 39; 5 Co. 121; Cro. Eliz.
920; Bac. Ab. Indictment, G 1; Com. Dig. Indictment, G 6; 1 Chit. Cr. Law,
242.
BURGLARY, crim. law. The breaking and entering the house of another in the
night time, with. intent to commit a felony therein, whether the felony be
actually committed or not. 3 Inst. 63; 1 Hale, 549; 1 Hawk. c. 38, s. 1; 4
Bl. Com. 224; 2 East, P. C. C. 15, s. 1, p. 484; 2 Russell on Cr. 2; Roscoe,
Cr. Ev. 252; Coxe, R. 441; 7 Mass. Rep. 247.
2. The circumstances to be considered are, 1. in what place the offence
can be committed; 2. at what time 3. by what means; 4. with what intention.
3.- 1. In what place a burglary can be committed. It must, in general,
be committed in a mansion house, actually occupied as a dwelling; but if it
be left by the owner animo revertendi, though no person resides in it in his
absence, it is still his mansion. Fost. 77; 3 Rawle, 207. The principal
question, at the present day, is what is to be deemed a dwelling-house. 1
Leach, 185; 2 Leach, 771; Id. 876; 3 Inst. 64; 1 Leach, 305; 1 Hale, 558;
Hawk. c. 38, s. 18; 1 Russ. on Cr. 16; 3 Berg. & Rawle, 199 4 John. R. 424 1
Nott & M'Cord, 583; 1 Hayw. 102, 242; Com. Dig. Justices, P 5; 2 East, P.
C. 504.
4. - 2. At what time it must be committed. The offence must be
committed in the night, for in the day time there can be no burglary. 4 Bl.
Com. 224. For this purpose, it is deemed night when by the light of the sun
a person cannot clearly discern the face or countenance of another 1 Hale,
550; 3 nst. 63. This rule, it is evident, does not apply to moonlight. 4
Bl. Com. 224; 2 Russ. on Cr. 32. The breaking and entering need not be done
the same night 1 Russ. & Ry. 417; but it is necessary the breaking and
entering should be in the night time, for if the breaking be in daylight and
the entry in the night, or vice versa, it will not be burglary. 1 Hale, 551;
2 Russ. on Cr. 32. Vide Com. Dig. Justices, P 2; 2 Chit. Cr. Law, 1092.
5.-3. The means used. There must be both a breaking and an entry.
First, of the breaking, which may be actual or constructive. An actual
breaking tal-,es place when the burglar breaks or removes ally part of, the
house, or the fastenings provided for it, with violence. Breaking a window,
taking a pane of glass out, by breaking or bending the nails, or other
fastenings, raising a latch where the door is not otherwise fastened;
picking open a lock with a false key; putting back the lock of a door or the
fastening of a window, with an instrument; turning the key when the door is
locked in the inside, or unloosening any other fastening which the owner has
provided, are several instances of actual breaking. According to the Scotch
law, entering a house by means of the true key, while in the door, or when
it had been stolen, is a breaking. Alis. Pr. Cr. Law, 284. Constructive
breakings occur when the burglar gams an entry by fraud, conspiracy or
threats. 2 Russ. on Cr. 22 Chit. Cr. Law, 1093. The breaking of an inner
door of the house will be sufficient to constitute a burglary. 1 Hale, 553.
Any, the least, entry, with the whole or any part of the body , hand, or
foot, or with any instrument or weapon, introduced for the purpose of
committing a felony, will be sufficient to constitute the offence. 3 Inst.
64; 4 Bl. Com. 227; Bac. Ab. Burglary, B Com. Dig. Justices, P 4. But the
introduction of an instrument, in the act of breaking the house, will not be
a sufficient entry, unless it be introduced for the purpose of committing a
felony.
6. - 4. The intention. The intent of the breaking and entry must be
felonious; if a felony however be committed, the act will be prima facie
evidence of an intent to commit it. If the breaking and entry be with an
intention to commit a bare trespass, and nothing further is done, the
offence will not be a burglary. 1 Hale, 560; East, P., C. 509, 514, 515; 2
Russ. on Cr. 33.
BURGOMASTER. In Germany this is, the title by which an officer who performs
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the duties of a mayor is, called.
BURIAL. The act of interring the dead.
2. No burial is lawful unless made in conformity with the local
regulations; an when a dead body has been found, it cannot be lawfully
buried until the coroner has holden an inquest over it. In England. it is
the practice for coroners to issue warrants to bury, after a view. 2 Umf.
Lex. Coron. 497, 498.
BURNING. Vide Accident; Arson; Fire, accidental.
BURYING-GROUND. A place appropriated for depositing the dead; a cemetery. In
Massachusetts, burying-grounds cannot, be appropriated to roads without the
consent of the owners. Massachusetts Revised St. 239.
BUSHEL, measure. The Winchester bushel, established by the 13 W. III. c. 5,
A. D. 1701, was made the standard of grain; a cylindrical vessel, eighteen
and a half inches in diameter, and eight inches deep inside, contains a
bushel; the capacity is 2145.42 cubic inches. By law or usage it is
established in most of the United States. The exceptions, as far as known,
are Connecticut, where the bushel holds 2198 cubic inches Kentucky, 2150
2/3; Indiana, Ohio, Mississippi and Missouri, where it contains 2150.4 cubic
inches. Dane's Ab. c. 211, a. 12, s. 4. See the whole subject discussed in
report of the Secretary of State of the United States to the Senate, Feb.
22, 1821.
BUSINESS HOURS. The time of the day during which business is transacted. In
respect to the time of presentment and demand of bills and notes, business
hours generally range through the whole day down to the hours of rest in the
evening, except when the paper is payable it a bank or by a banker. 2 Hill,
N. Y. R. 835. See 3 Shepl. 67; 5 Shepl. 230.
BUTT. A measure of capacity, equal to one hundred and eight gallons. See
Measure.
BUTTS AND BOUNDS. This phrase is used to express the ends and boundaries of
an estate. The word butt, being evidently derived from the, French bout, the
end; and bounds, from boundary.
TO BUY. To purchase. Vide Sale.
BUYER, contracts. A purchaser; (q. v.) a vendee.
BUYING OF TITLES. The purchase of the rights of a person to a piece of land
when the seller is disseised.
2. When a deed is made by one who, though having a legal right to land,
is at the time of the conveyance disseised, as a general rule of the common
law, the sale is void; the law will not permit any person to sell a quarrel,
or, as it is commonly termed, a pretended title. Such a conveyance is an
offence at common law, and by a statute of Hen. VIII. This rule has been
generally adopted in the United States, and is affirmed by express statute.
In some of the states, it has been modified or abolished. It has been
recognized in Massachusetts and Indiana. 1 Ind. R. 127. In Massacbusetts,
there is no statute on the subject, but the act has always been unlawful. 5
Pick. R. 356. In Connecticut the seller and the buyer forfeit, each one half
the value of the land. 4 Conn. 575. In New York, a person disseised cannot
convey, except by way of mortgage. But the statute does not apply to
judicial sales. 6 Wend. 224; see 4 Wend. 474; 2 John. Cas. 58; 3 Cow. 89; 5
Wend. 532; 5 Cow. 74; 13 John. 466; 8 Wend. 629; 7 Wend. 53, 152 11 Wend.
442; 13 John. 289. In North Carolina and South Carolina, a conveyance by a
disseisee is illegal; the seller forfeits the land, and the buyer its value.
In Kentucky such sale is void. 1 Dana, R. 566. But when the deeds were made
since the passage of the statute of 1798, the grantee might, under that act,
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sue for land conveyed to him, which was adversely possessed by another, as
the grantor might have done before. The statute rendered transfers valid to
pass the title. 2 Litt. 393; 1 Wheat. 292; 2 Litt. 225; 3 Dana, 309. The
statute of 1824, " to revive and amend the champerty and maintenance law,"
forbids the buying ot titles where there is an adverse possession. See 3 J.
J. Marsh. 549; 2 Dana, 374; 6 J. J. Marsh. 490, 584. In Ohio, the purchase
of land from one against whom a suit is pending for it, is void, except
against himself, if he prevails. Walk. Intr. 297, 351, 352. In Pennsylvania.
2 Watts, R. 272 Illinois, 111. Rev. L. 130; Missouri, Misso. St. 119, a deed
is valid, though there be an adverse possession. 2 Hill, Ab. c. 33, Sec. 42
to 52.
3. The Roman law forbade the sale of a right or thing in litigation.
Code, 8. 37, 2.
BY ESTIMATION, contracts. In sales of land it not unfrequently occurs that
the property is said to contain a certain number of acres, by estimation, or
so many acres, more or less. When these expressions are used, if the land
fall short by a small quantity, the purchaser will receive no relief. In one
case of this kind, the land fell short two-fifths, and the purchaser
received no relief. 2 Freem. 106. Vide 1 Finch, 109 1 Call, R. 301; 6 Binn.
Rep. 106 1 Serg. & Pawle, R. 166; 1 Yeates, R. 322 2 John. R. 37 5 John. R.
508; 15 John. R. 471; 1 Caines, R. 493; 3 Mass. Rep. 380; 5 Mass. R. 355; 1
Root: R. 528; 4 Hen. & Munf. 184. The meaning of these words has never been
precisely ascertained by judicial decision. See Sugd. Vend. 231 to 236;
Wolff, Inst. Sec. 658 and the cases cited under the articles Constitution;
More or less; Subdivision.
BY-LAWS. Rules and ordinances made by a corporation for its own government.
2. The power to make by-laws is usually conferred by express terms of
the charter creating the corporation, though, when not expressly granted, it
is given by implication, and it is incident to the very existence of a
corporation. When there is an express grant, limited to certain cases and
for certain purposes, the corporate power of legislation is confined to the
objects specified, all others being excluded by implication. 2 Kyd on Corp.
102; 2 P. Wms. 207; Ang. on Corp. 177. The power of making by-laws, is to be
exercised by those persons in whom it is vested by the charter; but if that
instrument is silent on that subject, it resides in the members of the
corporation at large. Harris & Gill's R. 324; 4 Burr. 2515, 2521; 6 Bro. P.
C. 519.
3. The constitution of the United States, and acts of congress made in
conformity to it the constitution of the state in which a corporation is
located, and acts of the legislature, constitutionally made, together with
the common-law as there accepted, are of superior force to any by-law; and
such by-law, when contrary to either of them, is therefore void, whether the
charter authorizes the making of such by-law or not; because no legislature
can grant power larger than they themselves possess. 7 Cowen's R. 585; Id.
604 5 Cowen's R. 538. Vide, generally, Aug. on Corp. ch. 9; Willc. on Corp.
ch. 2, s. 3; Bac. Ab. h. t.; 4 Vin. Ab. 301 Dane's Ab. Index, h. t., Com.
Dig. h. t.; and Id. vol. viii. h. t.
BY THE BYE, Eng. law. A declaration may be filed without a new process or
writ, when the defendant is in court in another case, by the plaintiff in
that case having filed common bail for him; the declaration thus filed is
called a declaration by the bye. 1 Crompt. 96; Lee's Diet. of Pr.
Declaration IV.
C.
CABALLERIA, Spanish law. A measure of land, which is different in different
provinces. Diccionario por la Real Academia. In those parts of the United
States, which formerly belonged to Spain, the caballeria is a lot of one
hundred feet front and two hundred feet deep, and equal, in all respects, to
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five peonias. (q.v.) 2 White's Coll. 49; 12 Pet. 444. note. See Fanegas.
CABINET. Certain officers who taken collectively make a board; as, the
president's, cabinet, which is usually composed of the secretary of state,
secretary of the treasury, the attorney general, and some others.
2. These officers are the advisers of the president.
CADASTRE. A term derived from the French, which has been adopted in
Louisiana, and which signifies the official statement of the quantity and
value of real property in any district, made for the purpose of justly
apportioning the taxes payable on such property. 3 Am. St. Pap. 679; 12 Pet.
428, n.
CALENDER, crim. law. A list of prisoners, containing their names, the time
when they were committed, and by whom, and the cause of their commitments.
CALIFORNIA. The name of one of the states of the United States. It was
admitted into the Union, by an Act of Congress, passed the 9th September,
1850, entitled "An act for the admission of the state of California into the
Union."
Sec. 1. This section enacts and declares that the state of California
shall be one of the United States, and admitted into the Union on an equal
footing with the original states, in all respects whatever.
Sec. 2. Enacts that the state of California shall be entitled to two
representatives, until the representatives in Congress shall be apportioned
according to the actual enumeration of the inhabitants, of the United
States.
Sec. 3. By this section a condition is expressly imposed on the said
state that the people thereof shall never interfere with the primary
disposal of the public lands within its limits, nor pass any law, nor do any
act, whereby the title of the United States to, and right to dispose of the
same, shall be impaired or questioned. It also provides that they shall
never lay any tax, or assessment of any description whatever, upon the
public domain of the United States; and that in no case shall non-resident
proprietors, who are citizens of the United States, be taxed higher than
residents; that all navigable waters within the said state shall be common
highways, forever free, as well to the inhabitants of said state, as to
citizens of the United States, without any tax, impost or duty therefor;
with this proviso, viz., that nothing contained in the act shall be
construed as recognizing or rejecting the propositions tendered by the
people of California, as articles of compact in the ordinance adopted by the
convention which formed the constitution of that state.
2. The principal features of the constitution, of California, are
similar to those of most, of the recently formed state constitutions. It
establishes an elective judiciary, and: confers on the executive a qualified
veto. It prohibits the creation of a state debt exceeding $300,000. It
provides for the protection of the homestead from execution, and secures the
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property of married females separate from that of their husbands. It makes a
liberal provision for the support of schools, prohibits the legislature from
granting divorces, authorizing lotteries, and creating corporations, except
by general laws, and from establishing any bank's of issue or circulation.
It provides also that every stockholder of a corporation or joint-stock
association, shall be individually and personally liable for his proportion
of all its, debts or liabilities. There is also a clause prohibiting
slavery, which, it is said, was inserted by the unanimous vote of the
delegates.
CALLING THE PLAINTIFF, practice. When a plaintiff perceives that he has not
given evidence to maintain his issue, and intends to become nonsuited, he
withdraws himself, when the cryer is ordered to call the plaintiff, and on
his failing to appear, he becomes nonsuited. 3 Bl. Com. 376.
CALUMNIATORS, civil law. Persons who accuse others, whom they know to be
innocent, of having committed crimes. Code 9, 46, 9.
CAPIATUR, pro fine. The name of a writ which was issued to levy a fine due
to the king. Bac. Ab. Fines and Amercements, in prin. See Judgment of
Capiatur.
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CAPITAL, political economy, commerce. In political economy, it is that
portion of the produce of a country, which may be made directly available
either to support the human species or to the facilitating of production.
2. In commerce, as applied to individuals, it is those objects, whether
consisting of money or other property, which a merchant, trader, or other
person adventures in an undertaking, or which he contributes to the common
stock of a partnership. 2 Bouv. Inst. n. 1458.
3. It signifies money put out at interest.
4. The fund of a trading company or corporation is also called capital,
but in this sense the word stock is generally added to it; thus we say the
capital stock of the Bank of North America.
CAPITAL CRIME. One for the punishment of which death is inflicted, which
punishment is called capital punishment. Dane's Ab. Index, h.t.
2. The subject of capital punishment has occupied the attention of
enlightened men for a long time, particularly since the middle of the last
century; and none deserves to be more carefully investigated. The right of
punishing its members by society cannot be denied; but how far this right
extends, by the laws of nature or of God, has been much disputed by
theoretical writers, although it cannot be denied, that most nations,
ancient and modern, have deemed capital punishment to be within the scope of
the legitimate powers of government. Beccaria contends with zeal that the
punishment of death ought not to be inflicted in times of peace, nor at
other times, except in cases where the laws can be maintained in no other
way. Bee. Chap. 28.
3. It is not within the plan of this work to examine the question,
whether the punishment is allowed by the natural law. The principal
arguments for and against it are here given.
4.-1. The arguments used in favor of the abolition of capital
punishment, are;
5.-1st. That existence is a right which men hold from God, and which
society in body can, no more than a member of that society, deprive them of,
because society is governed by the immutable laws of humanity.
6.-2d. That, even should the right be admitted, this is a restraint
badly selected, which does not attain its end, death being less dreaded than
either solitary confinement for life, or the performance of hard labor and
disgrace for life.
7.-3d. That the infliction of the punishment does not prevent crimes,
any more than, other less severe but longer punishments.
8.-4th. That as a public example, this punishment is only a barbarous
show, better calculated to accustom mankind to the contemplation of
bloodshed, than to restrain them.
9.-5th. That the law by taking life, when it is unnecessary for the
safety of society, must act by some other motive this can be no other than
revenge. To the extent the law punishes an individual beyond what is
requisite for the preservation of society, and the restoration of the
offender, is cruel and barbarous. The law) to prevent a barbarous act,
commits one of the same kind,; it kills one of the members of society, to
convince the others that killing is unlawful.
10.-6th. That by depriving a man of life, society is deprived of the
benefits which he is able to confer upon it; for, according to the vulgar
phrase, a man hanged is good for nothing.
11.-7th. That experience has proved that offences which were formerly
punished with death, have not increased since the punishment has been
changed to a milder one.
12.-2. The arguments which have been urged on the other side, are,
13.-1st. That all that humanity commands to legislators is, that they
should inflict only necessary and useful punishments; and that if they keep
within these bounds, the law may permit an extreme remedy, even the
punishment of death, when it is requisite for the safety of society.
14.-2d. That, whatever be said to the contrary, this punishment is
more repulsive than any other, as life is esteemed above all things, and
death is considered as the greatest of evils, particularly when it is
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accompanied by infamy.
15.-3d. That restrained, as this punishment ought to be, to the
greatest crimes, it can never lose its efficacy as an example, nor harden
the multitude by the frequency of executions.
16.-4th. That unless this punishment be placed at the top of the scale
of punishment, criminals will always kill, when they can, while committing
an inferior crime, as the punishment will be increased only by a more
protracted imprisonment, where they still will hope for a pardon or an
escape.
17th.-5th. The essays which have been made by two countries at least;
Russia, under the reign of Elizabeth, and Tuscany, under the reign of
Leopold, where the punishment of death was abolished, have proved
unsuccessful, as that punishment has been restored in both.
18. Arguments on theological grounds have also been advanced on both
sides. See Candlish's Contributions towards the Exposition of the Book of
Genesis, pp. 203-7. Vide Beccaria on Crimes and Punishments; Voltaire,
h.t.; Livingston's Report on a Plan of a Penal Code; Liv. Syst. Pen. Law,
22; Bentham on Legislation, part 3, c. 9; Report to the N. Y. Legislature;
18 Am. Jur. 334.
CAPITATION. A poll tax; an imposition which is yearly laid on each person
according to his estate and ability.
2. The Constitution of the United States provides that "no capitation,
or other direct tax, shall be laid, unless in proportion to the census, or
enumeration, therein before directed to be taken." Art. 1, s. 9, n. 4. See 3
Dall. 171; 5 Wheat. 317.
CAPITE, descents. By the head. Distribution or succession per capita, is
said to take place when every one of the kindred in equal degree, and not
jure representationis, receive an equal part of an estate.
CAPITULARIES.The Capitularia or Capitularies, was a code of laws promulgated
by Childebert, Clotaire, Carloman, Pepin, Charlemagne, and other kings. It
was so called from the small chapters or heads into which they were divided.
The edition by Baluze, published in 1677, is said to be the best.
CAPITULATION, war. The treaty which determines the conditions under which a
fortified place is abandoned to the commanding officer of the army which
besieges it.
2. On surrender by capitulation, all the property of the inhabitants
protected by the articles, is considered by the law of nations as neutral,
and not subject to capture on the high seas, by the belligerent or its ally.
2 Dall.
CAPITULATION, civ.law. An agreement by which the prince and the people, or
those who have the right of. the people, regulate the manner in which the
government is to be administered. Wolff, Sec. 989.
CAPTAIN or SEA CAPTAIN, mar. law. The name given to the master or commander
of a vessel. He is known in this country very generally by the name of
master. (q.v.) He is also frequently denominated patron in foreign laws and
books.
2. The captains in the navy of the United States, are officers
appointed by government. Those who are employed in the mercantile service,
have not strictly an official character. They are appointed or employed by
the owners on the vessels they command.
3. It is proposed to consider the duty of the latter. Towards the
owner of the vessel he is bound by his personal attention and care, to take
all the necessary precautions for her safety; to, proceed on the voyage in
which such vessel may be engaged, and to obey faithfully his instructions;
and by all means in his power to promote the interest of his owner. But he
is not required to violate good faith, nor employ fraud even with an enemy.
3 Cranch, 242.
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4. Towards others, it is the policy of the law to hold him responsible
for all losses or damages that may happen to the goods committed to his
charge; whether they arise from negligence, ignorance, or willful misconduct
of himself or his mariners, or any other person on board the ship. As soon,
therefore, as goods are put on board, they are in the master's charge, and
he is bound to deliver them again in the same state in which they were
shipped, and he is answerable for all losses or damages they may sustain,
unless it proceed from an inherent defect in the article, or from some
accident or misfortune which could not be prevented.
5. It may be laid down as a general rule, that the captain is
responsible when any loss occurs in consequence of his doing what he ought
not to do, unless he was forced by the act of God,. the enemies of the
United States, or the perils of the sea.1 Marsh. Ins. 241; Pard. n. 658.
6. The rights of the captain are, to choose his crew as he is
responsible for their acts, this seems but just, but a reasonable deference
to the rights of the owner require that he should be consulted, as he, as
well as the captain, is responsible for the acts of the crew. On board, the
captain is invested with almost arbitrary power over the crew, being
responsible for the abuse of his authority. Ab. on Shipp. 162. He may repair
the ship, and, if he is not in funds to pay the expenses of such repairs, he
may borrow money, when abroad, on the credit of his owners or of the ship.
Abb. on Sh. 127-8. In such cases, although contracting within the ordinary
scope of his powers and duties, he is generally responsible as well as the
owner. This is the established rule of the maritime law, introduced in favor
of commerce it has been recognized and adopted by the commercial nations of,
Europe, and is derived from the civil or Roman law. Abbott, Ship. 90; Story,
Ag. Sec. 116 to 123, Sec. 294; Paley, Ag. by Lloyd, 244; 1 Liverm. Ag. 70;
Poth. Ob. n. 82; Ersk. Inst. 3, 3, 43; Dig. 4, 9, 1; Poth. Pand. lib. 14,
tit. 1; 3 Summ. R. 228. See Bell's Com. 505, 6th ed; Bouv. Inst. Index, h.t.
CAPTATION, French law. The act of one who succeeds in controlling the will
of another, so as to become master of it. It is generally taken in a bad
sense.
2. Captation takes place by those demonstrations of attachment and
friendship, by those assiduous attentions, by those services and officious
little presents which are usual among friends, and by all those means which
ordinarily render us agreeable to others. When those attentions are
unattended by deceit or fraud, they are perfectly fair, and the captation is
lawful; but if, under the mask of friendship, fraud is the object, and means
are used to deceive the person with whom you are connected, then the
captation is fraudulent, and the acts procured by the captator are void. See
Influence.
CAPTATOR, French law. The name which is sometimes given, to him who by
flattery and artifice endeavors to surprise testators, and induce them to.
give legacies or devices, or to make him some other gift. Diet. de Jur.
CAPTION, practice. That part of a legal instrument, as a 'Commission,
indictment, &c., which shows where, when, and by what authority it was
taken, found or executed. As to the forms and requisites of captions, see 1
Murph. 281; 8 Yerg. 514; 4 Iredell, 113; 6 Miss,. 469; 1 Scam. 456; 5 How.
Mis. 20; 6 Blackf. 299; 1 Hawks, 354; 1 Brev. 169.
2. In the English practice, when an inferior court in obedience to the
writ of certiorari, returns an indictment into the K. B., it is annexed to
the caption, then called a schedule, and the caption concludes with stating,
that "it is presented in manner and form as appears in a certain indictment
thereto annexed," and the caption and indictment are returned on separate
parchments. 1 Saund. 309, n. 2. Vide Dane's Ab. Index, h.t.
3. Caption is another name for arrest. CAPTIVE. By this term is
understood one who has been taken; it is usually applied to prisoners of
war. (q.v.) Although he has lost his liberty, a captive does not by his
captivity lose his civil rights.
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CAPTOR, war. One who has taken property from an enemy; this term is also
employed to designate one who has taken an enemy.
2. Formerly, goods taken in war were adjudged to belong to the captor;
they are now considered to vest primarily, in the state or sovereign, and
belong to the individual captors only to the extent that the municipal laws
provide.
3. Captors are responsible to the owners of the property for all losses
and damages, when the capture is tortious and without reasonable cause in
the exercise of belligerent rights. But if the capture is originally
justifiable, the captors will not be responsible, unless by subsequent
misconduct they become trespassers ab initio. i Rob. R. 93, 96. See 2 Gall.
374; 1 Gall. 274; 1 Pet. Adm. Dee. 116; 1 Mason, R. 14.
CASE, remedies. This is the name of an action in very general use, which
lies where a party sues for damages for any wrong or cause of complaint to
which covenant or trespass will not lie. Steph. Pl. 153 Wodd. 167 Ham. N. P.
1. Vide Writ of trespass on the case. In its most comprehensive
signification, case includes assumpsit as well as an action in form ex
delicto; but when simply mentioned, it is usually understood to mean an
action in form ex delicto. 7 T. R. 36. It is a liberal action; Burr, 906,
1011 1 Bl. Rep. 199; bailable at common law. 2 Barr 927-8; founded on the
justice and conscience of the Tiff's case, and is in the nature of a bill in
equity 3 Burr, 1353, 1357 and the substance of a count in case is the damage
assigned. 1 Bl. Rep. 200.
2. An action on the case lies to recover damages for torts not
committed with force actual or implied, or having been occasioned by force,
where the matter affected was not tangible, or where the injury was not
immediate but consequential; 11 Mass. 59, 137 1 Yeates, 586; 6 S. & R. 348;
12 S. & R. 210; 18 John. 257 19 John. 381; 6 Call, 44; 2 Dana, 378 1 Marsh.
194; 2 H. & M. 423; Harper, 113; Coxe, 339; or where the interest in the
property was only in reversion. 8 Pick. 235; 7 Conn. 3282 Green, 8 1 John.
511; 3 Hawks, 2462 Murph. 61; 2 N. H. Rep. 430. In these several cases
trespass cannot be sustained. 4 T. 11. 489 7 T. R. 9. Case is also the
proper remedy for a wrongful act done under legal process regularly issuing
from a court of competent jurisdiction. 2 Conn. 700 11 Mass. 500 6 Greenl.
421; 1 Bailey, 441, 457; 9 Conn. 141; 2 Litt. 234; 3 Conn. 5373 Gill & John.
377. Vide Regular and irregular process.
3. It will be proper to consider, 1. in what cases the action of
trespass on the case lies; 2. the pleadings 3. the evidence; 4. the
judgment.
4.-1. This action lies for injuries, 1. to the absolute rights of
persons 2. to the relative rights of persons; 3. to personal property; 4. to
real property.
5.-1. When the injury has been done to the absolute rights of persons
by an act not immediate but consequential, as in the case of special damages
arising from a public nuisance Willes, 71 to 74 or where an incumbrance had
been placed in a public street, and the plaintiff passing there received an
injury; or for a malicious prosecution. See malicious prosecution.
6.-2. For injuries to the relative rights, as for enticing away an
infant child, per quod servitium amisit, 4 Litt. 25; for criminal
conversation, seducing or harboring wives; debauching daughters, but in this
case the daughter must live with her father as his servant, see Seduction;
or enticing away or harboring apprentices or servants. 1 Chit. Pl. 137 2
Chit. Plead. 313, 319. When the seduction takes place in the husband's or
father's house, he may, at his election, have trespass or case; 6 Munf. 587;
Gilmer, but when the injury is done in the house of another, case is the
proper remedy. 5 Greenl. 546.
7.-3. When the injury to personal property is without force and. not
immediate, but consequential, or when the plaintiff Is right to it is in
reversion, as, where property is injured by a third person while in the
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hands of a hirer; 3 Camp. 187; 2 Murph. 62; 3 Hawks, 246, case is the proper
remedy. 8 East, 693; Ld. Raym. 1399; Str. 634; 1 Chit. Pl. 138.
8.-4. When the real property which has been injured is corporeal, and
the injury is not immediate but consequential, as for example, putting a
spout so near the plaintiff's land that the water runs upon it; 1 Chit. Pl.
126, 141; Str. 634; or where the plaintiff's property is only in reversion.
When the injury has been done to, incorporeal rights, as for obstructing a
private way, or disturbing a party in the use of a pew, or for injury to a
franchise, as a ferry, and the like, case is the proper remedy. l Chit. Pl.
143.
9.-2. The declaration in case, technically so called, differs from a
declaration in trespass, chiefly in this, that in case, it must not, in
general, state the injury to have been committed vi et armis; 3 Conn. 64;
see 2 Ham. 169; 11 Mass. 57; Coxe, 339; yet after verdict, the words "with
force and arms" will, be rejected as surplusage; Harp. 122; and it ought not
to conclude contra pacem. Com. Dig. Action on the Case, C 3. The plea is
usually the general issue, not guilty.
10.-3. Any matter may, in general, be given in evidence, under the
plea of not guilty, except the statute of limitations. In cases of slander
and a few other instances, however, this cannot be done. 1 Saund. 130, n. 1;
Wilies, 20. When the plaintiff declares in case, with averments appropriate
to that form of action and the evidence shows that the injury was trespass;
or when he declares in trespass, and the evidence proves an injury for which
case will lie, and not trespass, the defendant should be acquitted by the
jury, or the plaintiff should be nonsuited. 5 Mass. 560; 16 Mass. 451; Coxe,
339; 3 John. 468.
11.-4. The judgment is, that the plaintiff recover a sum of money,
ascertained by a jury, for his damages sustained by the committing of the
grievances complained of in the declaration, and costs.
12. In the civil law, an action was given in all cases of nominate
contracts, which was always of the same name. But in innominate contracts,
which had always the same consideration, but not the same name, there could
be no action of the same denomination, but an action which arose from the
fact, in factum, or an action with a form which arose from the particular
circumstance, praescriptis verbis actio. Lec. Elem. Sec. 779. Vide,
generally, Bouv. Inst. Index, h.t.
CASE, STATED, practice. An agreement in writing, between a plaintiff and
defendant, that the facts in dispute between them are as there agreed upon
and mentioned, 3 Whart. 143.
2. The facts being thus ascertained, it is left for the court to decide
for which party is the law. As no writ of error lies on a judgment rendered
on a case stated, Dane's Ab. c. 137, art. 4, n. Sec. 7, it is usual in the
agreement to insert a clause that the case stated shall be considered in the
nature of special verdict.
3. In that case, a writ of error lies on the judgment which may be
rendered upon it. And a writ of error will also lie on a judgment on a case
stated, when the parties have agreed to it. 8 Serg. & Rawle, 529.
4. In another sense, by a case stated is understood a statement of all
the facts of a case, together with the names of the witnesses, and, a detail
of the documents which are to support them. In other words, it is a brief.
(q.v.)
CASH, commerce. Money on hand, which a merchant, trader or other person has
to do business with.
2. Cash price, in contracts, is the price of articles paid for in cash,
in contradistinction to the credit price. Pard. n. 85; Chipm. Contr. 110. In
common parlance, bank notes are considered as cash; but bills receivable are
not.
CASH-BOOK, Commerce, accounts. One in which a merchant or trader enters an
account of all the money, or paper moneys he receives or pays. An entry of
the same thing ought to be made under the proper dates, in the journal. The
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object of the cash-book is to afford a constant facility to ascertain the
true state of a man's cash. Pard. n. 87.
CAUSE, civ. law. This word has two meanings. 1. It signifies the delivery of
the thing, or the accomplishment of the act which is the object of a
convention. Datio vel factum, quibus ab una parte conventio, impleri caepta
est. 6 Toull. n. 13, 166. 2. it is the consideration or motive for making a
contract. An obligation without a cause, or with a false or unlawful cause,
has no effect; but an engagement is not the less valid, though the cause be
not expressed. The cause is illicit, when it is forbidden by law, when it is
contra bones mores, or public order. Dig. 2, 14, 7, 4; Civ. Code of Lo. a.
1887-1894 Code Civil, liv. 3, c. 2, s. 4, art. 1131-1133; Toull. liv. 3,
tit. 3, c. 2, s. 4.
CAUSE, contra torts, crim. That which produces an effect.
2. In considering a contract, an injury, or a crime, the law for many
purposes looks to the immediate, and not to any remote cause. Bac. Max. Reg.
1; Bac. Ab. Damages, E; Sid. 433; 2 Taunt. 314. If the cause be lawful, the
party will be justified; if unlawful, he will be condemned. The following is
an example in criminal law of an immediate and remote cause. If Peter, of
malice prepense, should discharge a pistol at Paul, and miss him, and then
cast away the pistol and fly and, being pursued by Paul, he turn round, and
kill him with a dagger, the law considers the first as the impulsive cause,
and Peter would be guilty of murder. But if Peter, with his dagger drawn,
had fallen down, and Paul in his haste had fallen upon it and killed
himself, the cause of Paul's death would have been too remote to charge
Peter as the murderer. Id.
3. In cases of insurance, the general rule is that the immediate and
not the remote cause of the loss is to be considered; causa proximo non
remota spedatur. This rule may, in some cases, apply to carriers. Story,
Bailm. Sec. 515.
4. For the reach of contracts, the contractor is liable for the
immediate effects of such breach, but not for any remote cause, as the
failure of a party who was to receive money, and did not receive it, in
consequence of which he was compelled to stop payment. 1 Brock. Cir. C. Rep.
103. See Remote; and also Domat, liv. 3, t. 5, s. 2, n. 4; Toull. liv. 3, n.
286; 6 Bing. R. 716; 6 Ves. 496; Pal. Ag. by Lloyd, 10; Story, Ag. Sec. 200;
3 Sumn. R. 38.
CAUSE, pleading.The reason; the motive.
2. In a replication de injuria, for example, the plaintiff alleges that
the defendant of his own wrong, and without the cause by him in his plea
alleged, did, &c. The word cause here means without the matter of excuse
alleged, and though in the singular number, it puts in issue all the facts
in the plea, which constitute but one cause. 8 Co. 67; 11 East, 451; 1 Chit.
Pl. 585.
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CAUSE, practice. A Contested question before a court of justice; it is a
Suit or action. Causes are civil or criminal. Wood's Civ. Law, 302; Code, 2,
416.
CAUSE OF ACTION. By this phrase is understood the right to bring an action,
which implies, that there is some person in existence who can assert, and
also a person who can lawfully be sued; for example, where the payee of a
bill was dead at the time when it fell due, it was held the cause of action
did not accrue, and consequently the statute of limitations did not begin to
run until letters of administration had been obtained by some one. 4 Bing.
686.
2. There is no cause of action till the claimant can legally sue,
therefore the statute of limitations does not run from the making of a
promise, if it were to perform something at a future time, but only from the
expiration of that time, though, when the obligor promises to pay on demand,
or generally, without specifying day, he may be sued immediately, and then
the cause of action has accrued. 5 Bar. & Cr. 860; 8 Dowl. & R. 346.When a
wrong has been committed, or a breach of duty has occurred, the cause of
action has accrued, though the claimant may be ignorant of it. 3 Barn. &
Ald. 288, 626 5 B. & C. 259; 4 C. & P. 127.
CAUTIO PRO EXPENSIS. Security for costs or expenses.
2. This term is used among the civilians, Nov. 112, c. 2, and generally
on the continent of Europe. In nearly all the countries of Europe, a foreign
plaintiff, whether resident there or not, is required to give caution pro
expenses; that is, security for costs. In some states this requisition is
modified, and, when such plaintiff has real estate, or a commercial or
manufacturing establishment within the state, he is not required to give such
caution. Faelix, Droit. Intern. Prive, n. 106.
CAUTION. A term of the Roman civil law, which is used in various senses. It
signifies, sometimes, security, or security promised. Generally every
writing is called cautio, a caution by which any object is provided for.
Vicat, ad verb. In the common law a distinction is made between a contract
and the security. The contract may be good and the security void. The
contract may be divisible, and the security entire and indivisible. 2 Burr,
1082. The securities or cautions judicially required of the defendant, are,
judicio sisti, to attend and appear during the pendency of the suit; de
rato, to confirm the acts of his attorney or proctor; judicium solvi, to pay
the sum adjudged against him. Coop. Just. 647; Hall's Admiralty Practice,
12; 2 Brown, Civ. Law, 356.
CAUTION, TURATORY, Scotch law. Juratory caution is that which a suspender
swears is the best he can offer in order to obtain a suspension. Where the
suspender cannot, from his low or suspected circumstances, procure
unquestionable security, juratory caution is admitted. Ersk. Pr. L. Scot. 4,
3, 6.
CAUTIONER, Scotch law, contracts. One who becomes bound as caution or surety
for another, for the performance of any obligation or contract contained in
a deed.
CAVEAT, practice. That he beware. Caveat is the name of a notice given by a
party having an interest, to some officer, not to do an act, till the party
giving the notice shall have been heard; as, a caveat to the register of
wills, or judge of probate, not to permit a will to be proved, or not to
grant letters of administration, until the party shall have been heard. A
caveat is also frequently made to prevent a patent for inventions being
issued. 1 Bouv. Inst. 71, 534; 1 Burn's Ecc. Law, 19, 263; Bac. Abr.
Executors and Administrators, E 8; 3 Bl. Com. 246; Proctor's Pract. 68; 3
Bin. Rep. 314; 1 Siderf. 371 Poph. 133; Godolph. Orph. Leg. 258; 2 Brownl.
119; 2 Fonbl. Eq. book 4, pt. 2, c. 1, Sec. 3; Ayl. Parer. 145 Nelson's Ab.
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h.t.; Dane's Ab. c. 223, a. 15, Sec. 2, and a. 8, Sec. 22. See 2 Chit. Pr.
502, note b, for a form.
CAVEAT EMPTOR. Let the purchaser take heed; that is, let him see to it, that
the title he is buying is good. This is a rule of the common law, applicable
to the sale and purchase of lands and other real estate. If the purchaser
pay the consideration money, he cannot, as a general rule, recover it back
after the deed has been executed; except in cases of fraud, or by force of
some covenant in the deed which has been broken. The purchaser,if he fears a
defect of title, has it in his power to protect himself by proper covenants,
and if he fails to do so, the law provides for him no remedy. Cro. Jac. 197;
1 Salk. 211 Doug. 630, 654; 1 Serg. & R. 52, 53, 445. This rule is
discussed with ability in Rawle on Covenants for Title, p. 458, et seq. c.
13, and the leading authorities collected. See also 2 Kent, Com. Lect. 39,
p. 478; 2 Bl. Com. 451; 1 Stor, Eq. Sec. 212 6 Ves. 678; 10 Ves. 505; 3
Cranch, 270; 2 Day, R. 128; Sugd. Vend. 221 1 Bouv. Inst. n. 954-5.
2. This rule has been severely assailed, as being the instrument of
falsehood and fraud; but it is too well established to be disregarded.
Coop., Just. 611, n. See 8 Watts, 308, 309.
CEDENT, civil law, Scotch law. An assignor. The term is usually applied to
the assignor of a chose in action. Kames on Eq. 43.
CELEBRATION, contracts. This word is usually applied, in law, to the
celebration of marriage, which is the solemn act by which a man and woman
take each other for husband and wife, conformably to the rules prescribed by
law. Diet. de Juris. h.t.
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CENSUS. An enumeration of the inhabitants of a country.
2. For the purpose of keeping the representation of the several states
in congress equal, the constitution provides, that "representatives and
direct taxes shall be apportioned among the several states, which may be
included in this Union, according to their respective numbers; which shall
be determined by adding to the whole number of free persons, including those
bound to service for a term of years, and excluding Indians not taxed, three-
fifths of all other persons. The actual enumeration shall be made within
three years after the first meeting of the congress of the United States,
and within every subsequent term of ten years, in such a manner as they
shall by law direct." Art. 1, s. 2; vide 1 Story, L. U. S., 73, 722, 751; 2
Id. 1134, 1139, 1169, 1194; 3 Id. 1776; 4 Sharsw. continuation, 2179.
CENT, money. A copper coin of the United States of the value of ten mills;
ten of them are equal to a dime, and one hundred, to one dollar. Each cent
is required to contain one hundred and sixty-eight grains. Act of January
18th, 1837, 4 Sharsw. cont. of Story',s L. U. S. 2524.
CENTIME. The name of a French money; the one hundredth part of a franc.
CENTRAL. Relating to the centre, or placed in the centre; as, the central
courts of the United States, are those located in the city of Washington,
whose jurisdiction extends over the whole country. These are, first, the
Senate of the United States, when organized to try impeachments; secondly,
the Supreme Court of the United States.
2. The government of the United States is the central government.
CENTUMVIRI, civil law. the citizens of Rome were distributed into thirty-
five tribes, and three persons out of each tribe were elected judges, who
were called centumviri, although they were one hundred and five in number.
They were distributed into four different tribunals, but in certain causes
called centumvirales causas, the judgments of the four tribunals were
necessary. Vicat,.ad verb.; 3 Bl. Com. 315.
CENTURY, civil law. One hundred. The Roman people were divided into
centuries. In England they were divided into hundreds. Vide Hundred. Century
also means one hundred years.
CEPI. A Latin word signifying I have taken. Cepi corpus, I have taken the
body; cepi and B. B., I have taken the body and discharged him on bail bond;
cepi corpus et est in custodia, I have taken the body and it is in custody;
cepi corpus, et est languidus, I have taken the body of, &c. and he is sick.
These are some of the various returns made by the sheriff to a writ of
capias.
CEPI CORPUS, practice. The return which the sheriff, or other proper officer,
makes when he has arrested a defendant by virtue of a capias. 3 Bouv. Inst.
n. 2804. See Capias. F. N. B. 26.
CEPIT. Took. This is a technical word, which cannot be supplied by any other
in an indictment for larceny. The charge against the defendant must be that
he took the thing stolen with a felonious design. Bac. Ab. Indictment, G 1.
CEPIT ET ABDUXIT. He took and led away. These words are applied to cases of
trespass or larceny, where the defendant took a living chattel, and led it
away. It is used in contradistinction to took and carried away, cepit et
asportavit. (q.v.)
CEPIT ET ASPORTAVIT. Took and carried away. (q.v.)
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CEPIT IN ALIO LOCO, pleadings. He took in another place. This is a plea in
replevin, by which the defendant alleges, that he took the thing replevied
in another place than that mentioned in the plaintiff's declaration. 1 Chit.
Pl. 490, 4 Bouv. Inst. n. 3569 2 Chit. Pl. 558; Rast. 554, 555; Clift. 636
Willes, R. 475; Tidd's App. 686.
CERTAINTY, UNCERTAINTY, contracts. In matters of obligation, a thing is
certain, when its essence, quality, and quantity, are described, distinctly
set forth, Dig. 12, 1, 6. It is uncertain, when the description is not that
of one individual object, but designates only the kind. Louis. Code, art.
3522, No. 8 5 Co. 121. Certainty is the mother of repose, and therefore the
law aims at certainty. 1 Dick. 245. Act of the 27th of July, 1789, ii. 2, 1
Story's Laws, 6. His compensation for his servicer, shall not exceed two
thousand dollars per annum. Gordon's Dig. art. 211.
2. If a contract be so vague in its terms, that its meaning cannot be
certainly collected, and the statute of frauds preclude the admissibility of
parol evidence to clear up the difficulty; 5 Barn. & Cr. 588; S. C. 12 Eng.
Com. L. R. 827; or parol evidence cannot supply the defect, then neither at
law, nor in equity, can effect be given to it. 1 Russ. & M. 116; 1 Ch. Pr.
123.
3. It is a maxim of law, that, that is certain which may be made
certain; certum est quod certum reddi potest Co. Litt. 43; for example, when
a man sells the oil he has in his store at so much a gallon, although there
is uncertainty as to the quantity of oil, yet inasmuch as it can be
ascertained, the maxim applies, and the sale is good. Vide generally, Story,
Eq. El. Sec. 240 to 256; Mitf. Pl. by Jeremy, 41; Coop. Eq. Pl. 5; Wigr. on
Disc. 77.
CERTIFICATE, JUDGE'S, English practice. The judge who tries the cause is
authorized by several statutes in certain cases to certify, so as to decide
when the party or parties shall or shall not be entitled to costs. It is of
great importance in many cases, that these certificates should be obtained
at the time of trial. See 3 Camp. R. 316; 5 B. & A. 796; Tidd's Pr. 879; 3
Ch. Pr. 458, 486.
2. The Lord Chancellor often requires the opinion of the judges upon a
question of law; to obtain this, a case is trained, containing the
admissions on both sides, and upon these the legal question is stated; the
case is then submitted to the judges, who, after hearing counsel, transmit
to the chancellor their opinion. This opinion, signed by the judges of the
court, is called their certificate. See 3 Bl. Com. 453.
CERTIFICATE, ATTORNEY'S, Practice, English law. By statute 37 Geo. III., c.
90, s. 26, 28, attorneys are required to deliver to the commissioners of
stamp duties, a paper or note in writing, containing the name and usual
place of residence of such person, and thereupon, on paying certain duties,
such person is entitled to a certificate attesting the payment of such
duties, which must be renewed yearly. And by the 30th section, an attorney
is liable to the penalty of fifty pounds for practising without.
CERTIFICATION or CERTIFICATE OF ASSISE. A term used in the old English law,
applicable to a writ granted for the reexamination or retrial of a matter
passed by assise before justices. F. N. B. 181 3 Bl. Com. 389. The summary
motion for a new trial has entirely superseded the use of this writ, which
was one of the means devised by the judges to prevent a resort to the remedy
by attaint for a wrong verdict.
CERTIORARI, practice. To be certified of; to be informed of. This is the
name of a writ issued from a superior court directed to one of inferior
jurisdiction, commanding the latter to certify and return to the former, the
record in the particular case. Bac. Ab. h.t.; 4 Vin. Ab. 330; Nels. Ab.
h.t.; Dane's Ab. Index, h.t.; 3 Penna. R. 24. A certiorari differs from a
writ of error. There is a distinction also between a hab. corp. and a
certiorari. The certiorari removes the cause; the hab. corp. only supersedes
the proceedings in below. 2 Lord Ray. 1102.
2. By the common law, a supreme court has power to review the
proceedings of all inferior tribunals, and to pass upon their jurisdiction
and decisions on questions of law. But in general, the determination of such
inferior courts on questions of fact are conclusive, and cannot be reversed
on certiorari, unless some statute confers the power on such supreme court.
6 Wend. 564; 10 Pick. 358; 4 Halst. 209. When any error has occurred in the
proceedings of the court below, different from the course of the common law,
in any stage of the cause, either civil or criminal cases, the writ of
certiorari is the only remedy to correct such error, unless some other
statutory remedy has been given. 5 Binn. 27; 1 Gill & John. 196; 2 Mass. R.
245; 11 Mass. R. 466; 2 Virg. Cas. 270; 3 Halst. 123; 3 Pick. 194 4 Hayw.
100; 2 Greenl. 165; 8 Greenl. 293. A certiorari, for example, is the correct
process to remove the proceedings of a court of sessions, or of county
commissioners in laying out highways. 2 Binn. 250 2 Mass. 249; 7 Mass. 158;
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8 Pick. 440 13 Pick. 195; 1 Overt. 131; 2 Overt. 109; 2 Pen. 1038; 8 Verm.
271 3 Ham. 383; 2 Caines, 179.
3. Sometimes the writ of certiorari is used as auxiliary process, in
order to obtain a full return to some other process. When, for example, the
record of an inferior court is brought before a superior court by appeal,
writ of error, or other lawful mode, and there is a manifest defect, or a
suggestion of diminution, a certiorari is awarded requiring a perfect
transcript and all papers. 3 Dall. R. 413; 3 John. R. 23; 7 Cranch, R. 288;
2 South. R. 270, 551; 1 Blackf. R. 32; 9 Wheat. R. 526; 7 Halst. R. 85; 3
Dev. R. 117; 1 Dev. & Bat. 382; 11 Mass. 414; 2 Munf. R. 229; 2 Cowen, R.
38. Vide Bouv. Inst. Index, h.t.
CESSET EXECUTIO. The staying of an execution.
2. When a judgment has been entered, there is sometimes, by the
agreement of the parties, a cesset executio for a period of time fixed upon
and when the defendant enters security for the amount of the judgment, there
is a cesset executio until the time allowed by law has expired.
CESSET PROCESSUS, practice. An entry made on the record that there be a stay
of the procas or proceedings.
2. This is made in cases where the plaintiff has become insolvent after
action brought. 2 Dougl. 627.
CESSAVIT, Eng. law. An obsolete writ, which could formerly have been sued
out when the defendant had for two years ceased or neglected to perform such
service or to pay such rent as he was bound to do by his tenure, and had not
upon his lands sufficient goods or chattels to be distrained. F. N. B. 208.
CESSIO BONORUM, civil law. The relinquishment which a debtor made of his
property for the benefit of his creditors.
2. This exempted the debtor from imprisonment, not, however, without
leaving an ignominious stain on his reputation. Dig. 2, 4, 25; Id. 48, 19,
1; Nov. 4, c. 3, and Nov. 135. By the latter Novel, an honest unfortunate
debtor might be discharged, by simply affirming that he was insolvent,
without having recourse to the benefit of cession. By the cession the
creditors acquired title to all the property of the insolvent debtor.
3. The cession discharged the debtor only to the extent of the property
ceded, and he remained responsible for the difference. Dom. Lois Civ. liv.
4, tit. 5., s. 1, n. 2. Vide, for the law of Louisiana, Code, art. 2166, et
seq. 2 M. R. 112; 2 L. R. 354; 11 L. R. 531; 5 N. S. 299; 2 L. R. 39; 2 N.
S. 108; 3 M. R. 232; 4 Wheat. 122; and Abandonment.
CESSION, contracts. Yielding up; release.
2. France ceded Louisiana to the United States, by the treaty of Paris,
of April 30, 1803 Spain made a cession of East and West Florida, by the
treaty of February 22, 1819. Cessions have been severally made of a part of
their territory, by New York, Virginia, Massachusetts, Connecticut) South
Carolina, North Carolina, and Georgia. Vide Gord. Dig. art. 2236 to 2250.
CESSION, civil law. The, act by which a party assigns or transfers property
to a other; an assignment.
CESSION, eccl. law. When an ecclesiastic is created bishop, or when a parson
takes another benefice, without dispensation, the first benefice becomes
void by a legal cession, or surrender. Cowel, h.t.
CESTUI. He. This word is frequently used in composition as, cestui que
trust, cestui que vie, &c.
CESTUI QUE TRUST, A barbarous phrase, to signify the beneficiary of an
estate held in trust. He for whose benefit another person is enfeoffed or
seised of land or tenements, or is possessed of personal property. The
cestui que trust is entitled to receive the rents and profits of the land;
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he may direct such conveyances, consistent with the trust, deed or will, as
he shall choose, and the trustee (q.v.) is bound to execute them: he may
defend his title in the name of the trustee. 1 Cruise, Dig. tit. 12, c. 4,
s. 4; vide Vin. Ab. Trust, U, W, X, and Y 1 Vern. 14; Dane's Ab. Index,
h.t.: 1 Story, Eq. Jur. Sec. 321, note 1; Bouv. Inst. Index, h.t.
CESTUI QUE VIE. He for whose life land is holden by another person; the
latter is called tenant per auter vie, or tenant for another's life. Vide
Dane's Ab. Index, h.t.
CESTUI QUE USE. He to whose use land is granted to another person the latter
is called the terre-tenant, having in himself the legal property and
possession; yet not to his own use, but to dispose of it according to the
directions of the cestui que use, and to suffer him to take the profits.
Vide Bac. Read. on Stat. of Uses, 303, 309, 310. 335, 349; 7 Com. Dig. 593.
CHAFEWAX, Eng, law. An officer in chancery who fits the wax for sealing, to
the writs, commissions and other. instruments then made to be issued out. He
is probably so called because he warms (chaufe) the wax.
CHAFFERS. Anciently signified wares and merchandise; hence the word
chaffering, which is yet used for buying and selling, or beating down the
price of an article. The word is used in stat. 3 Ed. III. c. 4.
CHAIRMAN. The presiding officer of a committee; as, chairman of the
committee of ways and means. The person selected to preside over a popular
meeting, is also called a chairman or moderator.
CHALDRON. A measure of capacity, equal to fifty-eight and two-third cubic
feet nearly. Vide Measure.
CHALLENGE. This word has several significations. 1. It is an exception or
objection to a juror. 2. A call by one person upon another to a single
combat, which is said to be a challenge to fight.
CHALLENGE, criminal law. A request by one person to another, to fight a
duel.
2. It is a high offence at common law, and indictable, as tending to a
breach of the peace. It may be in writing or verbally. Vide Hawk. P. C. b.
1, c. 63, s. 3; 6 East, R. 464; 8 East, R. 581; 1 Dana, R. 524; 1 South.. R.
40; 3 Wheel. Cr. C. 245 3 Rogers' Rec. 133; 2 M'Cord, R. 334 1 Hawks. R.
487; 1 Const. R. 107. He who carries a challenge is also punishable by
indictment. In most of the states, this barbarous practice is punishable by
special laws.
3. In most of the civilized nations challenging another to fight. is a
crime, as calculated to destroy the public peace; and those who partake in
the offence are generally liable to punishment. In Spain it is punished by
loss of offices, rents, and horrors received from the king, and the
delinquent is incapable to hold them in future. Aso & Man. Inst. B. 2, t.
19, c. 2, Sec. 6. See, generally, 6 J. J. Marsh. 120; 1 Munf. 468; 1 Russ.
on Cr. 275; 6 J. J. Marsh. 1 19; Coust. Rep. 10 7; Joy on Chal. passim.
CHALLENGE, practice. An exception made to jurors who are to pass on a trial;
to a judge; or to a sheriff.
2. It will be proper here to consider, 1. the several kinds of
challenges; 2. by whom they are to be made; 3. the time and manner of making
them.
3.-1. The several kinds of challenges may be divided into those which
are peremptory, and those which are for cause. 1. Peremptory challenges are
those 'which are made without assigning any reason, and which the court must
allow. The number of these which the prisoner was allowed at common law, in
all cases of felony, was thirty-five, or one under three full juries. This
is regulated by the local statutes of the different states, and the number
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except in capital cases, has been probably reduced.
4.-2. Challenges for cause are to the array or to the polls. 1. A
challenge to the array is made on account of some defect in making the
return to the venire, and is at once an objection to all the jurors in the
panel. It is either a principal challenge, that is, one founded on some
manifest partiality, or error committed in selecting, depositing, drawing or
summoning the jurors, by not pursuing the directions of the acts of the
legislature; or a challenge for favor.
5.-2. A challenge to the polls is objection made separately to each
juror as he is about to be sworn. Challenges to the polls, like those to the
array, are either principal or to the favor.
6. First, principal challenges may be made on various grounds: 1st.
propter defectum, on account of some personal objection, as alienage,
infancy, old age, or the want of those qualifications required by
legislative enactment. 2d. Propter affectum, because of some presumed or
actual partiality in the juryman who is made the subject of the objection;
on this ground a juror may be objected to, if he is related to either within
the ninth degree, or is so connected by affinity; this is supposed to bias
the juror's mind, and is only a presumption of partiality. Coxe, 446; 6
Greenl. 307; 3 Day, 491. A juror who has conscientious scruples in finding a
verdict in a capital case, may be challenged. 1 Bald. 78. Much stronger is
the reason for this challenge, where the juryman has expressed his wishes as
to the result of the trial, or his opinion of the guilt or innocence of the
defendant. 4 Harg. St. Tr. 748; Hawk. b. 2, c. 43, s. 28; Bac. Ab. Juries, E
5. And the smallest degree of interest in the matter to be tried is a
decisive objection against a juror. 1 Bay, 229; 8 S. & R. 444; 2 Tyler, 401.
But see 5 Mass. 90. 3d. The third ground of principal challenge to the
polls, is propter delictum, or the legal incompetency of the juror on the
ground of infamy. The court, when satisfied from their own examination,
decide as to the principal challenges to the polls, without any further
investigation and there is no occasion for the appointment of triers. Co.
Litt. 157, b; Bac. Ab. Juries, E 12; 8 Watts. R. 304.
7.-Secondly. Challenges to the poll for favor may be made, when,
although the juror is not so evidently partial that his supposed bias will
be sufficient to authorize. a principal challenge, yet there are reasonable
grounds to suspect that he will act under some undue influence or prejudice.
The causes for such challenge are manifestly very numerous, and depend, on a
variety of circumstances. The fact to be ascertained is, whether the juryman
is altogether indifferent as he stands unsworn, because, even unconsciously
to himself, be may be swayed to one side. The line which separates the
causes for principal challenges, and for challenge to the favor, is not very
distinctly marked. That the juror has acted as godfather to the child of the
prosecutor or defendant, is cause for a principal challenge; Co. Litt. 157,
a; while the fact that the party and the juryman are fellow servants, and
that the latter has been entertained at the house of the former, is only
cause for challenge to the favor. Co. Litt. 147; Bac. Ab. Juries, E 5.
Challenges to the favor are not decided upon by the court, but are settled
by triers. (q.v.)
8.-2. The challenges may be made by the government, or those who
represent it, or by the defendant, in criminal cases; or they may be made by
either party in civil cases.
9.-3. As to the time of making the challenge, it is to be observed
that it is a general rule, that no challenge can be made either to the array
or to the polls, until a full jury have made their appearance, because if
that should be the case, the issue will remain pro defectu juratorum; and on
this account, the party who intends to challenge the array, may, under such
a contingency, pray a tales to complete the number, and then object to the
panel. The proper time, of challenging, is between the appearance and the
swearing of the jurors. The order of making challenges is to the array
first, and should not that be supported, then to the polls; challenging any
one juror, waives the right of challenging the array. Co. Litt. 158, a; Bac.
Ab. Juries, E 11. The proper manner of making the challenge, is to state all
the objections against the jurors at one time; and the party will not be
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allowed to make a second objection to the same juror, when the first has
been overruled. But when a juror has been challenged on one side, and found
indifferent, he may still be challenged on the other. When the juror has
been challenged for cause, and been pronounced impartial, he may still be
challenged peremptorily. 6 T. R. 531; 4 Bl. Com. 356; Hawk. b. 2, c. 46, s.
10.
10. As to the mode of making the challenge, the rule is, that a
challenge to the array must be in writing; but when it is only to a single
individual, the words "I challenge him" are sufficient in a civil case, or
on the part of the defendant, in a criminal case when the challenge is made
for the prosecution, the attorney-general says, "We challenge him." 4 Harg.
St. Tr. 740 Tr. per Pais, 172; and see Cro. C. 105; 2 Lil. Entr. 472; 10
Wentw. 474; 1 Chit. Cr. Law, 533 to 551.
11. Interest forms the only ground at common law for challenging a
judge. It is no ground of challenge that he has given an opinion in the case
before. 4 Bin. 349; 2 Bin. 454. By statute, there are in some states several
other grounds of challenge. See Courts of the U. S., 633 64.
12. The sheriff may be challenged for favor as well as affinity. Co.
Litt. 158, a; 10 Serg. &. R. 336-7. And the challenge need not be made to
the court, but only to the prothonotary. Yet the Sheriff cannot be passed by
in the direction of process without cause, as he is the proper officer to
execute writs, except in case of partiality. Yet if process be directed to
the coroner without cause, it is not void. He cannot dispute the authority
of the court, but must execute it at his peril, and the misdirection is
aided by the statutes of amendment. 11 Serg. & R. 303.
CHAMBER. A room in a house.
2. It was formerly hold that no freehold estate could be had in a
chamber, but it was afterwards ruled otherwise. When a chamber belongs to
one person, and the rest of the house with the land is owned by another the
two estates are considered as two separate but adjoining dwelling house's.
Co. Litt. 48, b; Bro. Ab. Demand, 20; 4 Mass. 575; 6 N. H. Rep. 555; 9 Pick.
R. 297; vide 3 Leon. 210; 3 Watts. R. 243.
3. By chamber is also understood the place where an assembly is held;
and, by the use of a figure, the assembly itself is called a chamber.
CHAMBER OF COMMERCE. A society of the principal merchants and traders of a
city, who meet to promote the general trade and commerce of the place. Some
of these are incorporated, as in Philadelphia.
CHAMBERS, practice. When a judge decides some interlocutory matter, which
has arisen in the course of the cause, out of court, he is said to make such
decision at his chambers. The most usual applications at chambers take place
in relation to taking bail, and staying proceedings on process.
CHAMPART, French law. By this name was formerly understood the grant of a
piece of land by the owner to another, on condition that the latter would
deliver to him a portion of the crops. IS Toull. n. 182.
CHAMPERTOR, crim. law. One who makes pleas or suits, or causes them to be
moved, either directly or indirectly, and sues them at his proper costs,
upon condition of having a part of the gain.
CHAMPERTY, crimes. A bargain with a plaintiff or defendant, campum partire,
to divide the land or other matter sued for between them, if they prevail at
law, the champertor undertaking to carry on the suit at his own expense. 1
Pick. 416; 1 Ham. 132; 5 Monr. 416; 4 Litt. 117; 5 John. Ch. R. 44; 7 Port.
R. 488.
2. This offence differs from maintenance, in this, that in the latter
the person assisting the suitor receives no benefit, while in the former he
receives one half, or other portion, of the thing sued for. See Punishment;
Fine; Imprisonment; 4 Bl. Com. 135.
3. This was an offence in the civil law. Poth. Pand. lib. 3, t. 1; App.
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n. 1, tom. 3, p. 104; 15 Ves. 139; 7 Bligh's R. 369; S. C. 20 E. C. L. R.
165; 5 Moore & P. 193; 6 Carr. & P. 749; S. C. 25 E. C. L. R. 631; 1 Russ.
Cr. 179 Hawk. P. C. b. 1 c. 84, s. 5.
4. To maintain a defendant may be champerty. Hawk. P. C. b. 1, c. 84, s.
8 3 Ham. 541; 6 Monr. 392; 8 Yerg. 484; 8 John. 479; 1 John. Ch. R. 444;, 7
Wend. 152; 3 Cowen, 624; 6 Cowen, 90.
CHIEF, principal. One who is put above the rest; as, chief magistrate chief
justice : it also signifies the best of a number of things. It is frequently
used in composition.
CHIEF JUSTICIARY. An officer among the English, established soon after the
conquest.
2. He had judicial power, and sat as a judge in the Curia Regis. (q.v.)
In the absence of the king, he governed the kingdom. In the course of
time, the power and distinction of this officer gradually diminished, until
the reign of Henry III, when the office was abolished.
CHILD, CHILDREN, domestic relations. A child is the son or daughter in
relation to the father or mother.
2. We will here consider the law, in general terms, as it relates to
the condition, duties, and rights of children; and, afterwards, the extent
which has been given to the word child or children by dispositions in wills
and testaments.
3.-1. Children born in lawful wedlock, or within a competent time
afterwards, are presumed to be the issue of the father, and follow his
condition; those born out of lawful wedlock, follow the condition of the
mother. The father is bound to maintain his children and to educate them,
and to protect them from injuries. Children are, on their part, bound to
maintain their fathers and mothers, when in need, and they are of ability so
to do. Poth. Du Marriage, n. 384, 389. The father in general is entitled to
the custody of minor children, but, under certain circumstances, the mother
will be entitled to them, when the father and mother have separated. 5 Binn.
520. Children are liable to the reasonable correction of their parents. Vide
Correction
4.-2. The term children does not ordinarily and properly speaking
comprehend grandchildren, or issue generally; yet sometimes that meaning is,
affixed to it, in cases of necessity; 6 Co. 16; and it has been held to
signify the same as issue, in cases where the testator, by using the terms
children and issue indiscriminately, showed his intention to use the former
term in the sense of issue, so as to entitle grandchildren, & c., to take
under it. 1 Ves. sen. 196; Ambl. 555; 3 Ves. 258; Ambl. 661; 3 Ves. & Bea.
69. When legally construed, the term children is confined to legitimate
children. 7 Ves. 458. The civil code of Louisiana, art. 2522, n. 14, enacts,
that "under the, name of children are comprehended, not only children of the
first degree, but the grandchildren, great-grand-children, and all other
descendants in the direct line."
5. Children are divided into legitimate children, or those born in
lawful wedlock; and natural or illegitimate children, who are born bastards.
(q.v.) Vide Natural Children. Illegitimate children are incestuous
bastards, or those which are not incestuous.
6. Posthumous children are those who are born after the death of their
fathers. Domat, Lois Civ. liv. prel. t. 2, s. 1, Sec. 7 L. 3, Sec. 1, ff de
inj. rupt.
7. In Pennsylvania, the will of their fathers, in, which no provision
is made for them, is revoked, as far as regards them, by operation of law. 3
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Binn. R. 498. See, as to the law of Virginia on this subject, 3 Munf. 20,
and article In ventre sa mere. Vide, generally, 8 Vin. Ab. 318; 8 Com. Dig.
470; Bouv. Inst. Index, h.t.; 2 Kent, Com. 172; 4 Kent, Com. 408, 9; 1 Rop.
on Leg. 45 to 76; 1 Supp. to Ves. jr. 442 Id. 158; Natural children.
CHILDISHNESS. Weakness of intellect, such as that of a child.
2. When the childishness is so great that a man has lost his memory, or
is incapable to plan a proper disposition of his property, he is unable to
make a will. Swinb. part. 11, Sec. 1; 6 Co. 23. See 9 Conn. 102; 9 Phil. R.
57.
CHIMIN. This is a corruption of the French word chemin, a highway. It is
used by old writers. Com. Dig. Chimin.
CHINESE INTEREST. Interest for money charged in China. In a case where a
note was given in China, payable eighteen mouths after date, without, any
stipulation respecting interest, the court allowed the Chinese interest of
one per cent. per month, from the expiration of the eighteen months. 2 Watts
& Serg. 227, 264.
CHIROGRAPH, conveyancing. Signifies a deed or public instrument in writing.
Chirographs were anciently attested by the subscription and crosses of
witnesses; afterwards, to prevent frauds and concealments, deeds of mutual
covenant were made in a script and rescript, or in a part and counterpart;
and in the middle, between the two copies, they drew the capital letters of
the alphabet, and then tallied, or cut asunder in an indented manner, the
sheet or skin of parchment, one of which parts being delivered to each of the
CHIVALRY, ancient Eng. law. This word is derived from the French chevelier,
a horseman. It is. the name of a tenure of land by knight's service.
Chivalry was of two kinds: the first; which was regal, or held only of the
king; or common, which was held of a common person. Co. Litt. h.t.
CHOICE. Preference either of a person or thing, to one of several other
persons or things. Election. (q.v.)
CHOSE, property. This is a French word, signifying thing. In law, it is
applied to personal property; as choses in possession, are such personal
things of which one has possession; choses in action, are such as the owner
has not the possession, but merely a right of action for their possession. 2
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Bl. Com. 889, 397; 1 Chit. Pract. 99; 1 Supp. to Ves. Jr. 26, 59. Chitty
defines choses in actions to be rights to receive or recover a debt, or
money, or damages for breach of contract, or for a tort connected with
contract, but which cannot be enforced without action, and therefore termed
choses, or things in action. Com. Dig. Biens; Harr. Dig. Chose in
Action Chitty's Eq. Dig. b. t. Vide 1 Ch. Pr. 140.
2. It is one of the qualities of a chose in action, that, at common
law, it is not assignable. 2 John. 1; 15 Mass. 388; 1 Cranch, 367. But bills
of exchange and promissory notes, though choses in action, may be assigned
by indorsement, when payable to order, or by delivery when payable to
bearer. See Bills of Exchange.
3. Bonds are assignable in Pennsylvania, and perhaps some other states,
by virtue of statutory provisions.Inequity, however, all choses in action
are assignable and the assignee has an equitable right to enforce the
fulfilment of the obligation in the name of the assignor. 4 Mass. 511; 3
Day. 364; 1 Wheat. 236; 6 Pick. 316 9 ow. 34; 10 Mass. 316; 11 Mass. 157, n.
9 S. & R. 2441; 3 Yeates, 327; 1 Binn. 429; 5 Stew. & Port. 60; 4 Rand. 266;
7 Conn. 399; 2 Green, 510; Harp. 17; Vide, generally, Bouv. Inst. Index, h.t.
4. Rights arising ex delicto are not assignable either at law or in
equity.
CHRISTIANITY. The religion established by Jesus Christ.
2. Christianity has been judicially declared to be a part of the common
law of Pennsylvania; 11 Serg. & Rawle, 394; 5 Binn. R.555; of New York, 8
Johns. R. 291; of Connecticut, 2 Swift's System, 321; of Massachusetts,
Dane's Ab. vol. 7, c. 219, a. 2, 19. To write or speak contemptuously and
maliciously against it, is an indictable offence. Vide Cooper on the Law of
Libel, 59 and 114, et seq.; and generally, 1 Russ. on Cr. 217; 1 Hawk, c. 5;
1 Vent. 293; 3 Keb. 607; 1 Barn. & Cress. 26. S. C. 8 Eng. Com. Law R. 14;
Barnard. 162; Fitzgib. 66; Roscoe, Cr. Ev. 524; 2 Str. 834; 3 Barn. & Ald.
161; S. C. 5 Eng. Com. Law R. 249 Jeff. Rep. Appx. See 1 Cro. Jac. 421 Vent.
293; 3 Keb. 607; Cooke on Def. 74; 2 How. S. C. 11 ep. 127, 197 to 201.
CHURCH. In a moral or spiritual sense this word signifies a society of
persons who profess the Christian religion; and in a physical or material
sense, the place where such. persons assemble. The term church is nomen
collectivum; it comprehends the chancel, aisles, and body of the church.
Ham. N. P. 204.
2. By the English law, the terms church or chapel, and church-yard, are
expressly recognized as in themselves correct and technical descriptions of
the building and place, even in criminal proceedings. 8 B. & C. *25; 1 Salk.
256; 11 Co. 25 b; 2 Esp. 5, 28.
3. It is not within the plan of this work to give an account of the
different local regulations in the United States respecting churches.
References are here given to enable the inquirer to ascertain what they are,
where such regulations are known to exist. 2 Mass. 500; 3 Mass. 166; 8 Mass.
96; 9 Mass. 277; Id. 254; 10 Mass. 323; 15 Mass. 296 16 Mass. 488; 6 Mass.
401; 10 Pick. 172 4 Day, C. 361; 1 Root Sec. 3, 440; Kirby, 45; 2 Caines'
Cas. 336; 10 John. 217; 6 John. 85; 7 John. 112; 8 John. 464; 9 John. 147; 4
Desaus. 578; 5 Serg. & Rawle, 510; 11 Serg. & Rawle, 35; Metc. & Perk. Dig.
h.t.; 4 Whart. 531.
CIRCUIT COURT. The name of a court of the United States, which has both
civil and criminal jurisdiction. In several of the states there are courts
which bear this name. Vide Courts of the United States.
CIRCUITY OFACTION, practice, remedies. It is where a party, by bringing an
action, gives an action to the defendant against him.
2. As, supposing the obligee of a bond covenanted that he would not sue
on it; if he were to sue he would give an. action against himself to the
defendant for a breach of his covenant. The courts prevent such circuitous
actions, for it is a maxim of law, so to judge of contracts as to prevent a
multiplicity of actions; and in the case just put, they would hold that the
covenant not to sue operated as a release. 1 T. R. 441. It is a favorite
object of courts of equity to prevent a multiplicity of actions. 4 Cowen,
682.
CIRCUITS. Certain divisions of the country, appointed for particular judges
to visit for the trial of causes, or for the administration of justice. See
3 Bl. Com. 58; 3 Bouv. Inst. n. 2532.
CIRCULATING MEDIUM. By this term is understood whatever is used in making
payments, as money, bank notes, or paper which passes from hand to hand in
payment of goods, or debts.
CIRCUMDUCTION, Scotch law. A term applied to the time allowed for bringing
proof of allegiance, which being elapsed, if either party sue for
circumduction of the time of proving, it has the effect that no proof can
afterwards be brought; and the cause must be determined as it stood when
circumduction was obtained. Tech. Dict.
CIRCUMSTANCES, evidence. The particulars which accompany a fact.
2. The facts proved are either possible or impossible, ordinary and
probable, or extraordinary and improbable, recent or ancient; they may have
happened near us, or afar off; they are public or private, permanent or
transitory, clear and simple, or complicated; they are always accompanied by
circumstances which more or less influence the mind in forming a judgment.
And in some instances these circumstances assume the character of
irresistible evidence; where, for example, a woman was found dead in a room,
with every mark of having met with a violent death, the presence of another
person at the scene of action was made manifest by the bloody mark of a left
hand visible on her left arm. 14 How. St. Tr. 1324. These points ought to be
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carefully examined, in order to form a correct opinion. The first question
ought to be, is the fact possible ? If so, are there any circumstances which
render it impossible ? If the facts are impossible, the witness ought not to
be credited. If, for example, a man should swear that he saw the deceased
shoot himself with his own pistol, and upon an examination of the ball which
killed him, it should be found too large to enter into the pistol, the
witness ought not to be credited. 1 Stark. Ev. 505; or if one should swear
that another had been guilty of an impossible crime.
3. Toullier mentions a case, which, were it not for the ingenuity of
the counsel, would require an apology for its introduction here, on account
of its length. The case was this: La Veuve Veron brought an action against
M. de Morangies on some notes, which the defendant alleged were fraudulently
obtained, for the purpose of recovering 300,000 francs, and the question
was, whether the defendant had received the money. Dujonquai, the grandson
of the plaintiff, pretended he had himself, alone and on foot, carried this
sum in gold to the defendant, at his hotel at the upper end of the rue Saint
Jacques, in thirteen trips, between half past seven and about one o'clock,
that is, in about five hours and a half, or, at most, six hours. The fact
was improbable; Linquet, the counsel of the defendant, proved it was
impossible; and this is his argument:
4. Dujonquai said that he had divided the sum in thirteen bags, each
containing six hundred louis d'ors, and in twenty-three other bags, each
containing two hundred. There remained twenty-five louis to complete the
whole sum, which, Dujonquai said, he received from the defendant as a
gratuity. At each of 'these trips, he says, he put a bag, containing two
hundred louis, that is, about three pounds four ounces, in each of his coat
pockets, which, being made in the fashion of those times, hung about the
thighs, and in walking must have incommoded him and obstructed his speed; he
took, besides, a bag containing six hundred louis in his arms; by this means
his movements were impeded by a weight of near ten pounds.
5. The measured distance between the house where Dujonquai took the
bags to the foot of the stairs of the defendant, "as five hundred and
sixteen toises, which, multiplied by twenty-six, the thirteen trips going
and returning, make thirteen thousand four hundred and sixteen toises, that
is, more than five leagues and a half (near seventeen miles), of two
thousand four hundred toises, which latter distance is considered sufficient
for an hour's walk, of a good walker. Thus, if Dujonquai had been unimpeded
by any obstacle, he would barely have had time to perform the task in five
or six hours, even without taking any rest or refreshment. However strikingly
improbable this may have been, it was not physically impossible. But
6.-1. Dujonquai, in going to the defendant's, had to descend sixty-
three steps from his grandmother's, the plaintiff's chamber, and to ascend
twenty-seven to that of the defendant, in the whole, ninety steps. In
returning, the ascent and descent were changed, but the steps were the same;
so that by multiplying, by twenty-six, the number of trips going and
returning, it would be seen there were two thousand three hundred and forty
steps. Experience had proved that in ascending to the top of the tower of
Notre Dame (a church in Paris), where there are three hundred and eighty-
nine steps, it occupied from eight to nine minutes of time. It must then
have taken an hour out of the five or six which had been employed in making
the thirteen trips.
7.-2. Dujonquai had to go up the rue Saint Jacques, which is very
steep; its ascent would necessarily decrease the speed of a man, burdened
and encumbered with the bags which he carried in his pockets and in his arms.
8.-3. This street, which is very public, is usually, particularly in
the morning, encumbered by a multitude of persons going in every direction,
so that a person going along must make an infinite number of deviations from
a direct line; each by itself, is almost imperceptible, but at the end of
five or six hours, they make a considerable sum, which may be estimated at a
tenth part of the whole course in a straight line; this would make about
half a league, to be added to the five and a half leagues, which is the
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distance in a direct line.
9.-4. On the morning that Dujonquai made these trips, the daily and
usual incumbrances of this street were increased by sixty or eighty workmen,
who were employed in removing by hand and with machine, an enormous stone,
intended for the church of Saint Genevieve, now the pantheon, and by the
immense crowd which this attracted; this was a remarkable circumstance,
which, supposing that Dujonquai had not yielded to the temptation of
stopping a few moments to see what was doing, must necessarily have impeded
his way, and made him lose seven or eight minutes each trip, which,
multiplied by twenty-six would make about two hours and a half.
10.-5. The, witness was obliged to open and shut the doors at the
defendant's house; it required time to take up the bags and place them in
his pockets, to take them out and put them on the defendant's table, who, by
an improbable supposition, counted the money in the intervals between the
trips, and not in the presence of the witness. Dujonquai, too, must have
taken receipts or acknowledgments at each trip, he must read them, and on
arriving at home, deposited them in some place of safety all these
distractions would necessarily occasion the loss of a few minutes. By adding
these with scrupulous nicety, and by further adding the time employed in
taking and depositing the bags, the opening and shutting of the doors, the
reception of the receipts, the time occupied in reading and putting them
away, the time consumed in several conversations, which he admitted he had
with persons in the street; all these joined to the obstacles above
mentioned, made it evident that it was physically impossible that Dujonquai
should have carried the 300,000 francs to the house of the defendant, as he
affirmed he had done. Toull. tom. 9, n. 241, p. 384. Vide, generally, 1
Stark. Ev. 502; 1 Phil. Ev. 116. See some curious cases of circumstantial
evidence in Alis. Pr. Cr. Law, 313, 314; and 2 Theorie des Lois Criminelles,
147, n.; 3 Benth. Jud. Ev. 94, 223; Harvey's Meditations on the Night, note
35; 1 Taylor's Med. Jur. 372; 14 How. St. Tr. 1324; Theory of Presumptive
Proof, passim; Best on Pres. SSSS 187, 188, 197. See Death; Presumption;
Sonnambulism.
only to a part of his business, while the merchant himself superintends the
whole. He differs from a factor in this, that the latter wholly supplies the
place of his principal in respect to the property consigned to him. Pard.
Dr. Com. n. 38, 1 Chit. Pract. 80; 2 Bouv. Inst. n. 1287.
COCKETTUM, commerce. In the English law this word signifies, 1. the custom-
house seal; 2. the office at the custom where cockers are to be procured.
Crabbe's Tech. Dict.
CODE, legislation. Signifies in general a collection of laws. It is a name
given by way of eminence to a collection of such laws made by the
legislature. Among the most noted may be mentioned the following:
CODES, Les Cing Codes; French law. The five codes.
2. These codes are, 1st. Code Civil, which is divided into three books;
book 1, treats of persons, and of the enjoyment and privation of civil
rights; book 2, of property and its different modifications; book 3, of the
different ways of acquiring property. One of the most perspicuous and able,
commentators on this code is Toullier, frequently cited in this work.
3.-2d. Code de procedure civille, which is divided into two parts.
Part 1, is divided into five books; 1. of justices of the. peace; 2. of
inferior tribunals; 3. of royal courts; 4. of extraordinary means of
proceeding; 5. of execution and judgment. Part 2, is divided into three
books; 1. of tender and consignation; 2. of process in relation to the
opening of a succession; 3. of arbitration.
4.-3d. Code de Commerce, in four books; 1. of commerce in general; 2.
of maritime commerce; 3. of failures and bankruptcy; 4. of commercial
jurisdiction. Pardessus is one of the ablest commentators on this code.
5.-4th. Code d'Instructions Criminelle, in two books; 1. of judiciary
police, and its officers; 2. of the administration of justice.
6.-5th. Code Penal, in four books; 1. of punishment in criminal and
correctional cases, and their effects; 2. of the persons punishable,
excusable or responsible, for their crimes or misdemeanors; 3. of crimes,
misdemeanors, (delits,) and their punishment; 4. of contraventions of
police, and their punishment. For the history of these codes, vide Merl.
Rep. h.t.; Motifs, Rapports, Opinions et Discours sur les Codes; Encyclop.
Amer. h.t.
7. Henrion de Pansey, late a president of the Court of Cassation,
remarks in reference to these codes: "In the midst of the innovations of
these later times, a system of uniformity has suddenly engrossed all minds,
and we have had imposed upon us the same weights, the same measures, the
same laws, civil, criminal, rural and commercial. These new codes, like
everything which comes from the hand of man, have imperfections and
obscurities. The administration of them is committed to nearly thirty
sovereign courts and a multitude of petty tribunals, composed of only three
judges, and yet are invested with the right of determining in the last
resort, under many circumstances. Each tribunal, the natural interpreter of
these laws, applies them according to its own view, and the new codes were
scarcely in operation before this beautiful system of uniformity became
nothing more than a vain theory. Authorite Judiciaire, c. 31, s. 10.
CODE HENRI. A digest of the laws of Hayti, enacted by Henri, king of Hayti.
It is based upon the Code Napoleon, but not servilely copied. It is said to
be judiciously adapted to the situation of Hayti. A collection of laws made
by order of Henry III of France, is also known by the name of Code Henri.
CODE, JUSTINIAN, civil law. A collection of the constitutions of the
emperors, from Adrian to Justinian; the greater part of those from Adrian to
Constantine are mere rescripts; those from Constantine to Justinian are
edicts or laws, properly speaking.
2. The code is divided into twelve books, which are subdivided into
titles, in which the constitutions are collected under proper heads. They
are placed in chronological order, but often disjointed. At the head of each
constitution is placed the name of the emperor who is the author, and that
of the person to whom it is addressed. The date is at the end. Several of
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these constitutions, which were formerly in the code were lost, it is
supposed by the neglect of "copyists. Some of them have been restored by
modern authors, among whom may be mentioned Charondas, Cugas, and Contius,
who translated them from Greek, versions.
CODE, OF LOUISIANA. In 1822, Peter Derbigny, Edward Livingston, and Moreau
Lislet, were selected by the legislature to revise and amend the civil code,
and to add to it such laws still in force as were not included therein. They
were authorized to add a system of commercial law, and a code of practice.
The code the prepared having been adopted, was promulgated in 1824, under
the title of the "Civil Code of the State of Louisiana."
2. The code is based on the Code Napoleon, with proper and judicious
modifications, suitable for the state of Louisiana. It is composed of three
books: 1. the first treats of persons; 2. the second of things, and of the
different modifications of property; 3. and the third of the different modes
of acquiring the property of things. It contains 3522 articles, numbered
from the beginning, for the convenience of reference.
3. This code, it is said, contains many inaccurate definitions. The
legislature modified and changed many of the provisions relating to the
positive legislation, but adopted the definitions and abstract doctrines of
the code without material alterations. From this circumstance, as well as
from the inherent difficulty of the subject, the positive provisions of the
code are often at variance with the theoretical part, which was intended to
elucidate them. 13 L. R. 237.
4. This code went into operation on the 20th day of May,. 1825. 11 L.
R. 60. It is in both the French and English languages; and in construing it,
it is a rule that when the expressions used in the French text of the code
are more comprehensive than those used in English, or vice versa, the more
enlarged sense will be taken, as thus full effect will be given to both
clauses. 2 N. S. 582.
CODE, NAPOLEON. The Code Civil of France, enacted into law during the reign
of Napoleon, bore his name until the restoration of the Bourbons when it was
deprived of that name, and it is now cited Code Civil.
CODE PAPIRIAN. The name of a collection of the Roman laws, promulgated by
Romulus, Numa, and other kings who governed. Rome till the time of Tarquin,
the Proud. It was so called in honor if Sextus Parrius, the compiler. Dig.
1, 2, 2.
CODE PRUSSIAN. Allgemeines Landrecht. This code is also known by the name of
Codex Fredericianus, or Frederician code. It was compiled by order of
Frederic H., by the minister of justice, Samuel V. Cocceji, who completed, a
part of it before his death, in 1755. In 1780, the work was renewed under
the superintendence of the minister Von Carmer, and prosecuted with
unceasing activity and was published from 1784 to 1788, in six parts. The
opinions of those who understood the subject were requested, and prizes
offered on the best commentaries on it; and the whole was completed in June,
1791, under the title "General Prussian Code."
CODE THEODOSIAN. This code, which originated in the eastern empire, was
adopted in the Western empire towards its decline. It is a collection of the
legislation of the Christian emperors, from and including Constantine to
Theodosius, the Younger; it is composed of sixteen books, the edicts, acts,
rescripts, and ordinances of the two empires, that of the east and that of
the west.
CO-DEFENDANT. One who is made defendant in an action with another person.
CODEX. Literally, a volume or roll. It is particularly applied to the volume
of the civil law, collected by the emperor Justinian, from all pleas and
answers of the ancient lawyers, which were in loose scrolls or sheets of
parchment. These he compiled into a book which goes by the name of Codex.
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CODICIL, devises. An addition or supplement to a will; it must be executed
with the same solemnities. A codicil is a part of the will, the two
instruments making but one will. 4 Bro. C. C. 55; 2 Ves. sen. 242 4 Ves.
610; 2 Ridgw. Irish P. C. 11, 43.
2. There may be several codicils to one will, and the whole will be
taken as one: the codicil does not, consequently, revoke the will further
than it is in opposition to some of its particular dispositions, unless
there be express words of revocation. 8 Cowen, Rep. 56.,
3. Formerly, the difference between a will and a codicil consisted in
this, that in the former an executor was named, while in the latter none was
appointed. Swinb. part 1, s. 5, pl. 2; Godolph. Leg. part 1, c. 6, s. 2.
This is the distinction of the civil law, and adopted by the canon law. Vide
Williams on Wills, ch. 2; Rob. on Wills, 154, n. 388, 476; Lovelass on
Wills, 185, 289 4 Kent, Com. 516; 1 Ves. jr. 407, 497; 3 Ves. jr. 110; 4
Ves. jr. 610; 1 Supp. to Ves. jr. 116, 140.
4. Codicils were chiefly intended to mitigate the strictness of the
ancient Roman law, which required that a will should be attested by seven
Roman citizens, omni exceptione majores. A legacy could be bequeathed, but
the heir could not be appointed by codicil, though he might be made heir
indirectly by way of fidei commissum.
5. Codicils owe their origin to the following circumstances. Lucius
Lentulus, dying in Africa, left. codicils, confirmed by anticipation in a
will of former date, and in those codicils requested the emperor Augustus,
by way of fidei commissum, or trust, to do something therein expressed. The
emperor carried this will into effect, and the daughter of Lentulus paid
legacies which she would not otherwise have been legally bound to pay. Other
persons made similar fidei-commissa, and then the emperor, by the advice of
learned men whom he consulted, sanctioned the making of codicils, and thus
they became clothed with legal authority. Just. 2, 25; Bowy. Com. 155, 156.
6. The form of devising by codicil is abolished in Louisiana; Code,
1563; and whether the disposition of the property be made by testament,
under this title, or under that of institution of heir, of legacy, codicil,
donation mortis causa, or under any other name indicating the last will,
provided it be clothed with the forms required for the validity of a
testament, it is, as far as form is concerned, to be considered a testament.
Ib. Vide 1 Brown's Civil Law, 292; Domat, Lois Civ. liv. 4, t. 1, s. 1;
Lecons Element, du Dr. Civ. Rom. tit. 25.
COERCION, criminal law, contracts. Constraint; compulsion; force.
2. It is positive or presumed. 1. Positive or direct coercion takes
place when a man is by physical force compelled to do an act contrary to his
will; for example, when a man falls into the hands of the enemies of his
country, and they compel him, by a just fear of death, to fight against it.
3.-2. It is presumed where a person is legally under subjection to
another, and is induced, in consequence of such subjection, to do an act
contrary to his win. A married woman, for example, is legally under the
subjection of her husband, and if in his company she commit a crime or
offence, not malum in se, (except the offence of keeping a bawdy-house, In
which case she is considered by the policy of the law as a principal, she is
presumed to act under this coercion.
4. As will (q.v.) is necessary to the commission of a crime, or the
making of a contract, a person coerced into either, has no will on the,
subject, and is not responsible. Vide Roscoe's Cr. Ev. 7 85, and the cases
there cited; 2 Stark. Ev. 705, as to what will, amount to coercion in
criminal cases.
CO-EXECUTOR. One who is executor with another.
2. In general, the rights and duties of co-executors are equal.
COGNATION, civil law. Signifies generally the kindred which exists between
two persons who are united by ties of blood or family, or both.
2. Cognation is of three kinds: natural, civil, or mixed. Natural
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cognation is that which is alone formed by ties of blood; such is the
kindred of those who owe their origin to an illicit connexion, either in
relation to their ascendants or collaterals.
3. Civil cognation is that which proceeds alone from the ties of
families as the kindred between the adopted father and the adopted child.
4. Mixed cognation is that which unites at the same time the ties of
blood and family, as that which exists between brothers, the issue of the
same lawful marriage. 6; Dig. 38, 10.
COGNATI, cognates. This term occurs frequently in the Roman civil law, and
denotes collateral heirs through females. It is not used in the civil law as
it now prevails in France. In the common law it has no technical sense, but
as a word of discourse in English it signifies, generally, allied by blood,
related in origin, of the same family. See Vicat, ad verb.; also, Biret's
Vocabulaire.
COGNISANCE, pleading. Where the defendant in an action of replevin (not
being entitled to the distress or goods which are the subject of the
replevin) acknowledges the taking of the distress, and insists that such
taking was legal, not because he himself had a right to distrain on his own
account, but because he made the distress by the command of another, who had
a right to distrain on the goods which are the subject of the suit. Lawes on
Pl. 35, 36; 4 Bouv. Inst. n. 3571.
COGNISANCE, practice. Sometimes signifies jurisdiction and judicial power,
an sometimes the hearing of a matter judicially. It is a term used in the
acknowledgment of a fine. See Vaughan's Rep. 207.
COGNISANCE OF PLEAS, Eng. law. A privilege granted by the king to a city or
town, to hold pleas within the same; and when any one is impleaded in the
courts at Westminster, the owner of the franchise may demand cognisance of
the plea. T. de la Ley.
COGNISEE. He to whom a fine of lands, &c. is acknowledged. See Cognisor.
COGNISOR, English law. One who passes or acknowledges,a fine of lands or
tenements to another, in distinction from the cognisee, to whom the fine of
the lands, &c. is acknowledged.
COGNITIONIBUS ADMITTENDIS, English law, practice. A writ to a justice,or
other person, who has power to take a fine, and having taken the
acknowledgment of a fine, delays to certify it in the court of common pleas,
requiring him to do it. Crabbe's Tech. Dict.
COGNOMEN. A Latin word, which signifies a family name. The praenomen among
the Romans distinguished the person, the nomen, the gens, or all the kindred
descended from a remote common stock through males, while the cognomen
denoted the particular family. The agnomen was added on account of some
particular event, as a further distinction. Thus, in the designation Publius
Cornelius Scipio Africanus, Publius is the proenomen, Cornelius is the
nomen, Scipio the cognomen, and Africanus the agnomen. Vicat. These several
terms occur frequently in the Roman laws. See Cas. temp. Hardw. 286; 1 Tayl.
148. See Name; Surname.
COGNOVIT, contr. leading. A written confession of an action by a defendant,
subscribed but not sealed, and authorizing the plaintiff to sign judgment
and issue execution, usually for a sum named.
2. It is given after the action is brought to save expense.
3. It differs from a warrant of attorney, which is given before the
commencement of any action, and is under seal. A cognovit actionem is an
acknowledgment and confession of the plaintiff's cause of action against the
defendant to be just and true. Vide 3 Ch. Pr. 664; 3 Bouv. Inst. n. 8299.
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COHABITATION. Living together.
2. The law presumes that husband and wife cohabit, even after a
voluntary separation has taken place between them; but where there has been
a divorce a mensa et thoro, or a sentence of separation, the presumption
then arises that they have obeyed the sentence or decree, and do not live
together.
3. A criminal cohabitation will not be presumed by the proof of a
single act of criminal intercourse between a man and woman not married. 10
Mass. R. 153.
4. When a woman is proved to cohabit with a man and to assume his name
with his consent, he will generally be responsible for her debts as if she
had been his wife; 2 Esp. R. 637; 1 Campb. R. 245; this being presumptive
evidence of marriage; B. N. P. 114; but this liability will continue only
while they live together, unless she is actually his were. 4 Campb. R. 215.
5. In civil actions for criminal conversation with the plaintiff's
wife, after the husband and wife have separated, the plaintiff will not in
general be entitled to recover. 1 Esp. R. 16; S. C. 5 T. R. 357; Peake's
Cas. 7, 39; sed vide 6 East, 248; 4 Esp. 39.
CO-HEIR. One of several men among whom an inheritance is to be divided.
CO-HEIRESS. A woman who inherits an estate in common with other women. A
joint heiress.
COIF. A head-dress. In England there are certain serjeants at law, who are
called serjeants of the coif, from the lawn coif they wear on their heads
under their thin caps when they are admitted to that order.
COLLATION OF SEALS. Where, on the same label, one seal was set on the back
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or reverse of the other, this was said to be a collation of seals. Jacob. L.
D. h.t.
COLLECTORS OF THE CUSTOMS. Officers of the United States, appointed for the
term of four years, but removable at the pleasure of the president. Act of
May 15, 1820, sect. 1, 3 Story's U. S. Laws, 1790.
2. The duties of a collector of customs are described in general terms,
as follows: "He shall receive all reports, manifests and documents, to be
made or exhibited on the entry of any ship or vessel, according to the
regulations of this act shall record in books, to be kept for the purpose,
all manifests; shall receive the entries of all ships or vessels, and of
the goods, wares and merchandise imported in them; shall, together with the
naval officer, where there is one, or alone, where there is none, estimate
the amount of duties payable thereupon, endorsing the said amounts upon the
respective entries; shall receive all moneys paid for duties, and shall take
bonds for securing the payment thereof; shall grant all permits for the
unlading and delivery of goods; shall, with the approbation of the principal
officer of the treasury department, employ proper persons as weighers,
gaugers, measurers and inspectors, at the several ports within his district;
and also, with the like approbation, provide, at the public expense,
storehouses for the safe keeping of goods, and such scales, weights and
measures, as may be necessary." Act of March 2,1799) s. 21, 1 Story, U. S.
Laws, 590. Vide, for other duties of collectors, 1 Story, U. S. Laws, 592,
612, 620, 632, 659, and vol. 3, 1650, 1697, 1759, 1761, 1791, 1811, 1848,
1854; 10 Wheat. 246.
COLLEGE. A civil corporation, society or company, authorized by law, having
in general a literary object. In some countries by college is understood the
union of certain voters in *one body; such bodies are called electoral
colleges; as, the college of electors or their deputies to the diet of
Ratisbon; the college of cardinals. The term is used in the United States;
as, the college of electors of president and vice-president, of the United
States. Act of Congress of January 23, 1845.
COLLISION, maritime law. It takes place when two ships or other vessels run
foul of each other, or when one runs foul of the other. In such cases there
is almost. always a damage incurred.
2. There are four possibilities under which an accident of this sort
may occur. 1. It may happen without blame being imputable to either party,
as when the loss is occasioned by a storm, or any other vis major; in that
case the loss must be borne by the party on whom it happens to light, the
other not being responsible to him in, any degree.
3. - 2. Both parties may be to blame, as when there has been a want of
due diligence or of skill on both sides; in such cases, the loss must be
apportioned between them, as having been occasioned by the fault of both of
them. 6 Whart. R. 311..
4. - 3. The suffering party may have been the cause of the injury, then
he must bear the loss.
5. - 4. It may have been the fault of the ship which ran down the
other; in this case the injured party would be entitled to an entire
compensation from the other. 2 Dodson's Rep. 83, 85; 3 Hagg. Adm. R. 320; 1
How. S. C. R. 89. The same rule is applied to steamers.. Id. 414.
6. - 5. Another case has been put, namely, when there has been some
fault or neglect, but on which side the blame lies, is uncertain. In this
case, it does not appear to be settled whether the loss shall be apportioned
or borne by the suffering party opinions on this subject are divided.
7. A collision between two ships on the high seas, whether it be the
result of accident or negligence, is, in all cases, to be deemed a peril of
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the seas within the meaning of a policy of insurance. 2 Story, R. 176; 3
Sumn. R. 889. Vide, generally, Story, Bailm. Sec. 607 to 612; Marsh.. Ins.
B. 1, c. 12, s. 2; Wesk. Ins. art. Running Foul; Jacobsen's Sea Laws, B. 4,
c. 1; 4 Taunt. 126; 2 Chit. Pr. 513, 535; Code de Com. art. 407; Boulay-
Paty, Cours de Dr. Commercial, tit. 12, s. 6; Pard. n. 652 to 654; Pothier,
Avaries, n. 155; 1 Emerig. Assur. ch. 12, Sec. 14.
COLLISTRIGIUM. The pillory.
COLLOCATION, French law. The act by which the creditors of an estate are
arranged in the order in which they are to be paid according to law. The
order in which the creditors-are placed, is also called collocation. Merl.
Rep. h.t. Vide Marshalling Assets.
COLLOQUIM, pleading. A discourse a conversation or conference.
2. In actions of slander, it is generally true that an action does not
lie for words, on account of, their being merely disgraceful to a person in
his office, profession or trade; unless it be averred, that at the time of
publishing the words, there was a colloquium concerning the office,
profession or trade of the plaintiff.
3. In its technical sense, the term colloquium signifies an averment in
a declaration that there was a conversation or discourse on the part of the
defendant, which connects the slander with the office, profession or trade
of the plaintiff; and this colloquium must extend to the whole of the
prefatory matter to render the words actionable. 3 Bulst. 83. Vide Bac. Ab.
Slander, S, n. 3; Dane's Ab. Index, h.t.; Com. Dig. Action upon the case
for Defamation, 6, 7, 8, &c.; Stark. on Sland. 290, et seq.
COLONEL. An officer in the army, next below a brigadier general, bears this
title.
upon the actual amount or value of the business done. When there is a usage
of trade at the particular place, or in the particular business in which the
agent is engaged, the amount of commissions allowed to auctioneers, brokers
and factors, is regulated by such usage. 3 Chit. Com. Law, 221; Smith on
Mere. Law, 54; Story, Ag. Sec. 326; 3 Camp. R. 412; 4 Camp. R. 96; 2 Stark.
225, 294.
4. The commission of an agent is either ordinary or del credere. (q.v.)
The latter is an increase of the ordinary commission, in consideration
of the responsibility which the agent undertakes, by making himself
answerable for the solvency of those with whom he contracts. Liverm. Agency,
3, et seq.; Paley, Agency, 88, et seq.
5. In Pennsylvania, the amount missions allowed to executors and
trustees is generally fixed at five per centum on the sum received and paid
out, but this is varied according to circumstances. 1 9 S. & R. 209, 223; 4
Whart. 98; 1 Serg. & Rawle, 241. In England, no commissions are allowed to
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executors or trustees. 1 Vern. R. 316, n. and the cases there: cited. 4 Ves.
72, n.
COMMON BENCH, bancus communis. The court of common pleas was anciently
called common bench, because the pleas and controversies there determined
were between common persons. See Bench.
COMMON COUNCIL. In many cities the charter provides for their government, in
imitation of the national and state governments. There are two branches of
the legislative assembly; the less numerous, called the select, the other,
the common council.
2. In English law, the common council of the whole realm means the
parliament. Fleta, lib. 2, cap. 13.
COMMON COUNTS. Certain general counts, not founded on any special contract,
which are introduced in a declaration, for the purpose of preventing a
defeat of a just right by the accidental variance of the evidence. These are
in an action of assumpsit; counts founded on express or implied promises to
pay money in consideration of a precedent debt, and are of four
descriptions: 1. The indebitatus assumpsit; 2. The quantum meruit; 3. The
quantum valebant; and, 4. The account stated.
COMMON FISHERY. A fishery to which all persons have a right, such as the cod
fisheries off Newfoundland. A common fishery is different from a common of
fishery, which is the right to fish in another's pond, pool, or river. See
Fishery.
COMMON HIGHWAY. By this term is meant a road to be used by the community at
large for any purpose of transit or traffic. Hamm. N. P. 239. See Highway.
COMMON INFORMER. One who, without being specially required by law, or by
virtue of his office, gives information of crimes, offences or misdemeanors,
which have been committed, in order to prosecute the offenders; a
prosecutor. Vide Informer; Prosecutor.
COMMON INTENT, construction. The natural sense given to words.
2. It is a rule that when words are used which will bear a natural
sense and an artificial one, or one to be made out by argument and
inference, the natural sense shall prevail; it. is simply a rule of
construction and not of addition common intent cannot add to a sentence
words which have been omitted. 2 H. Black. 530. In pleading, certainty is
required, but certainty to a common intent is sufficient; that is, what
upon a reasonable construction may be called certain, without recurring to
possible facts. Co. Litt. 203, a; Dougl. 163. See Certainty.
COMMON LAW. That which derives its force and authority from the universal
consent and immemorial practice of the people. See Law, common.
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COMMON NUISANCE. One which affects the public in general, and not merely
some particular person. 1 Hawk. P. C. 197. See Nuisance.
COMMON PLEAS. The name of a court having jurisdiction generally of civil
actions. For a historical account of the origin of this court in England,
see Boote's Suit at Law, 1 to 10. Vide Common Bench and Bench.
2. By common pleas, is also understood, such pleas or actions as are
brought by private persons against private persons; or by the government,
when the cause of action is of a civil nature. In England, whence we derived
this phrase, common pleas are so called to distinguish them from pleas of
the crown. (q.v.)
COMMUNITY. This word has several meanings; when used in common parlance it
signifies the body of the people.
2. In the civil law, by community is understood corporations, or bodies
politic. Dig. 3, 4.
3. In the French law, which has been adopted in this respect in
Louisiana, Civ. Code, art. 2371, community is a species of partnership,
which a man and woman contract when they are lawfully married to each other.
It consists of the profits of all, the effects of which the husband has the
administration and enjoyment, either of right or in fact; of the produce of
the reciprocal industry and labor of both husband and wife, and of the
estates which they may acquire during the marriage, either by donations made
jointly to them, or by purchase, or in any other similar way, even although
the purchase he made in the name of one of the two, and not of both; because
in that case the period of time when the purchase is made is alone attended
to, and not the person who made the purchase. 10 L. R. 146; Id. 172, 181; 1
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N. S. 325; 4 N. S. 212. The debts contracted during the marriage enter into
the community, and must be acquitted out of the common fund; but not the
debts contracted before the marriage.
4. The community is either, first, conventional, or that which is
formed by an express agreement in the contract of marriage itself; by this
contract the legal community may be modified, as to the proportions which
each shall take, or as to the things which shall compose it; Civ. Code of L.
art. 2393; second, legal, which takes place when the parties make no
agreement on this subject in the contract of marriage; when it is regulated
by the law of the domicil they had at the time of marriage.
5. The effects which compose the community of gains, are divided into
two equal portions between the heirs, at the dissolution of the marriage.
Civ. Code of L. art. 2375. See Poth. h.t.; Toull. h.t.; Civ. Code of Lo.
tit. 6, c. 2, s. 4.
6. In another sense, community is the right which all men have,
according to the laws of nature, to use all things. Wolff, Inst. Sec. 186.
COMMUTATION, punishments. The change of a punishment to which a person has
been condemned into a less severe one. This can be granted only by the
executive authority in which the pardoning power resides.
COMMUTATIVE CONTRACT, civil law. One in which each of the contracting
parties gives and, receives an equivalent. The contract of sale is of this
kind. The seller gives the thing sold, and receives the price, which is the
equivalent. The buyer gives the price and receives the thing sold, which is
the equivalent.
2. These contracts are usually distributed into four classes, namely;
Do ut des; Facio ut facias; Facio ut des; Do ut facias. Poth. Obl. n. 13.
See' Civ. Code of Lo. art. 1761.
COMMUTATIVE JUSTICE. That virtue whose object is, to render to every one
what belongs to him, as nearly as may be, or that which governs contracts.
2. The word commutative is derived from commutare, which signifies to
exchange. Lepage, El. du Dr. ch. 1, art. 3, Sec. 3. See Justice.
TO COMMUTE. To substitute one punishment in the place of another. For
example, if a man be sentenced to be hung, the executive may, in some
states, commute his punishment to that of imprisonment.
COMPACT, contracts. In its more general sense, it signifies an agreement. In
its strict sense, it imports a contract between parties, which creates
obligations and rights capable of being enforced, and contemplated as such
between the parties, in their distinct and independent characters. Story,
Const. B. 3, c. 3; Rutherf. Inst. B. 2, c. 6, Sec. 1. 2. The constitution of
the United States declares that "no state shall, without the consent of
congress, enter into agreement or compact with another state, or with a
foreign power." See 11 Pet: 1; 8 Wheat. 1 Bald. R. 60; 11 Pet. 185.
CONCESSION. A grant. This word is frequently used in this sense when applied
to grants made by the French and Spanish governments in Louisiana.
CONCESSIMUS. A Latin word, which signifies, we have granted. This word
creates a covenant in law, for the breach of which the grantors may be
jointly sued. It imports no warranty of a freehold, but as in case of a
lease for years. Spencer's Case, 5 Co. Rep. 16 Brown v. Heywood, 3 Keble,
Rep. 617 Bac. Ab. Covenant, B. See Bac. Ab. officers, &c. E.
CONCESSOR. A grantor; one who makes a concession to another.
CONCILIUM. A day allowed to a defendant to make his defence; an imparlance,
4 Bl. Com. 356, n.; 3 T. R. 530.
CONCILIUM REGIS. The name of a tribunal which existed in England during the
times of Edward I. and Edward H., composed of the judges and sages of the
law. To them were referred cases of great difficulty. Co. Litt. 804.
CONCLAVE. An assembly of cardinals for the purpose of electing a pope; the
place where the assembly is held is also called a conclave. It derives this
name from the fact that all the windows and doors are looked, with the
exception of a single panel, which admits a gloomy light.
CONCLUSION, practice. Making the last argument or address to the court or
jury. The party on whom the onus probandi is cast, in general has the
conclusion.
CONDICTIO INDEBITI, civil law. When the plaintiff has paid to the defendant
by mistake what he was not bound to pay either in fact or in law, he may
recover it back by an action called condictio indebiti. This action does not
lie, 1. if the sum was due ex cequitate, or by a natural obligation; 2. if
he who made the payment knew that nothing was due, for qui consulto dat quod
non debetat, prcesumitur donare. Vide Quasi contract.
CONDICTION, Lat. condictio. This term is used in the civil law in the same
sense as action. Condictio certi, is an action for the recovery of a certain
thing, as our action of replevin, condictio incerti, is an action given for
the recovery of an uncertain thing. Dig. 12, 1.
CONDITIONS OF SALE, contracts. The terms upon which the vendor of property
by auction pro poses to sell it; the instrument containing these terms, when
reduced to writing or printing, is also called the conditions of sale.
2. It is always prudent and advisable that the conditions of sale
should be printed and exposed in the auction room; when so done, they are
binding on both parties, and nothing that is said at the time of sale, to
add to or vary such printed conditions, will be of any avail. 1 H. Bl. 289
12 East, 66 Ves. 330; 15 Ves. 521; 2 Munf. Rep. 119; 1 Desauss. Ch. Rep.
573; 2 Desauss. Ch. R. 320; 11 John. Rep. 555; 3 Camp. 285. Vide forms of
conditions of sale in Babington on Auctions, 233 to 243; Sugd. Vend. Appx.
No. 4. Vide Auction; Auctioneer; Puffer.
CONDONATION. A term used in the canon law. It is a forgiveness by the
husband of his wife, or by a wife of her husband, of adultery committed,
with an implied condition that the injury shall not be repeated, and that
the other party shall be treated with conjugal kindness. 1 Hagg. R. 773; 3
Eccl. Rep. 310. See 5 Mass. 320 5 Mass. 69; 1 Johns. Ch. R. 488.
2. It may be express or implied, as, if a husband, knowing of his
wife's infidelity, cohabit with her. 1 Hagg. Rep. 789; 3 Eccl. R. 338.
3. Condonation is not, for many rea sons, held so strictly against a
wife as against a husband. 3 Eccl. R. 830 Id. 341, n.; 2 Edw. R. 207. As all
condonations, by operation of law, are expressly or impliedly conditional,
it follows that the effect is taken off by the repetition of misconduct; 3
Eccl. R. 329 3 Phillim. Rep. 6; 1 Eccl. R. 35; and cruelty revives condoned
adultery. Worsley v. Worsley, cited in Durant v. Durant, 1 Hagg. Rep. 733; 3
Eccl. Rep. 311.
4. In New York, an act of cruelty alone, on the part of the husband,
does not revive condoned adultery, to entitle the wife to a divorce. 4
Paige's R. 460. See 3 Edw. R. 207.
5. Where the parties have separate beds, there must, in order to found
condonation, be something of matrimonial intercourse presumed; it does not
rest merely on the wife's not. withdrawing herself. 3 Eccl. R. 341, n.; 2
Paige, R. 108.
6. Condonation is a bar to a sentence of divorce. 1 Eccl. Rep. 284; 2
Paige, R. 108. In Pennsylvania, by the Act of the 13th of March, 1815, Sec.
7, 6 Reed's Laws of Penna. 288, it is enacted that "in any suit or action
for divorce for cause of adultery, if the defendant shall allege and prove
that the plaintiff has admitted the defendant into conjugal society or
embraces, after he or she knew of the criminal fact, or that the plaintiff
(if the husband) allowed of his wife's prostitutions, or received hire, for
them, or exposed his wife to lewd company, whereby she became ensnared to
the crime aforesaid, it shall be a good defence, and perpetual bar against
the same." The same rule may be found, perhaps, in the codes of most
civilized countries. Villanova Y Manes, Materia Criminal Forense, Obs. 11,
c. 20, n. 4. Vide, generally, 2 Edw. 207; Dev. Eq. R. 352 4 Paige, 432; 1
Edw. R. 14; Shelf. on M. & D. 445; 1 John. Ch. R. 488 4 N. Hamp. R. 462; 5
Mass. 320.
CONDUCT, law of nations. This term is used in the phrase safe conduct, to
signify the security given, by authority of the government, under the great
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seal, to a stranger, for his quietly coming into and passing out of the
territories over which it has jurisdiction. A safe conduct differs from a
passport; the former is given to enemies, the latter to friends or citizens.
CONDUCT MONEY. The money advanced to a witness who has been subpoenaed to
enable him to attend a trial, i's so called.
CONDUCTOR OPERARUM, civil law. One who undertakes, for a reward, to perform
a job or piece of work for another. See Locator Operis.
CONFEDERACY, intern. law. An agreement between two or more states or
nations, by which they unite for their mutual protection and good. This term
is applied to such agreement between two independent nations, but it is used
to signify the union of different states of the same nation, as the
confederacy of the states.
2. The original thirteen states, in 1781, adopted for their federal
government the "Articles of confederation and perpetual union between the
States," which continued in force until the present constitution of the
United States went into full operation, on the 30th day of April, 1789, when
president Washington was sworn into office. Vide 1 Story on the Const. B. 2,
c. 3 and 4.
CONFEDERACY, crim. law. An agreement between two or more persons to do an
unlawful act, or an act, which though not unlawful in itself, becomes so by
the confederacy. The technical term usually employed to signify this
offence, is conspiracy. (q.v.)
CONFEDERACY, equity pleading. The fourth part of a bill in chancery usually
charges a confederacy; this is either general or special.
2. The first is by alleging a general charge of confederacy between the
defendants and other persons to injure or defraud the plaintiff. The common
form of the charge is, that the defendants, combining and confederating
together, to and with divers other persons as yet to the plaintiff unknown,
but whose names, when discovered, he prays may be inserted in the bill, and
they be made parties thereto, with proper and apt words to charge them with
the premises, in order to injure and oppress the plaintiff in ti e premises,
do absolutely refuse, &c. Mitf. Eq. Pl. by Jeremy, 40; Coop. Eq. Pl. 9
Story, Eq. Pl. Sec. 29; 1 Mont. Eq. Pl. 77; Barton, Suit in Eq. 33; Van
Heyth. Eq. Drafts, 4.
3. When it is intended to rely on a confederacy or combination as a
ground of equitable jurisdiction, the confederacy must be specially charged
to justify an assumption of jurisdiction. Mitf. Eq. Pl. by Jeremy, 41;
Story, Eq. Pl. Sec. 30.
4. A general allegation of confederacy is now considered as mere form.
Story, Eq. Pl. Sec. 29; 4 Bouv. Inst. n. 4169.
CONFEDERATION, government. The name given to that form of government which
the American colonies, on shaking off the British yoke, devised for their
mutual safety and government.
2. The articles of confederation, (q.v.) were finally adopted on the
15th of November, 1777, and with the exception of Maryland, which, however,
afterwards also agreed to them, were speedily adopted by the United States,
and by which they were formed into a federal @bod y, and went into force on
the first day of March, 1781; 1 Story Const. Sec. 225; and so remained until
the adoption of the present constitution, which acquired the force of the
supreme law of the land on the first Wednesday of March, 1789. 5 Wheat. R.
420. Vide Articles of Confederation.
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CONFLICT OF LAWS. This phrase is used to signify that the laws of different
countries, on the subject-matter to be decided, are in opposition to each
other; or that certain laws of the same country are contradictory.
2. When this happens to be the case, it becomes necessary to decide
which law is to be obeyed. This subject has occupied the attention and
talents of some of the most learned jurists, and their labors are comprised
in many volumes. A few general rules have been adopted on this subject,
which will here be noticed.
3. - 1. Every nation possesses an exclusive sovereignty and
jurisdiction within its own territory. The laws of every state, therefore,
affect and bind directly all property, whether real or personal, within its
territory; and all persons who are resident within it, whether citizens or
aliens, natives or foreigners; and also all contracts made, and acts done
within it. Vide Lex Loci contractus; Henry, For. Law, part 1, c. 1, 1; Cowp.
It. 208; 2 Hag. C. R. 383. It is proper, however, to observe, that
ambassadors and other public ministers, while in the territory of the state
to, which they are delegates, are exempt from the local jurisdiction. Vide
Ambassador. And the persons composing a foreign army, or fleet, marching
through, or stationed in the territory of another state, with whom the
foreign nation is in amity, are also exempt from the civil and criminal
jurisdiction of the place. Wheat. Intern. Law, part 2, c. 2, Sec. 10;
Casaregis, Disc. 136-174 vide 7 Cranch, R. 116.
4. Possessing exclusive authority, with the above qualification, a
state may regulate the manner and circumstances, under which property,
whether real or personal, in possession or in action, within it shall be
held, transmitted or transferred, by sale, barter, or bequest, or recovered
or enforced; the condition, capacity, and state of all persons within it the
validity of contracts and other acts done there; the resulting rights and
duties growing out of these contracts and acts; and the remedies and modes
of administering justice in all cases. Story, Confl. of Laws, Sec. 18;
Vattel, B. 2, c. 7, Sec. 84, 85; Wheat. Intern. Law, part 1, c. 2, Sec. 5.
5. - 2. A state or nation cannot, by its laws, directly affect or bind
property out of its own territory, or persons not resident therein, whether
they are natural born or naturalized citizens or subjects, or others. This
result flows from the principle that each sovereignty is perfectly
independent. 13 Mass. R. 4. To this general rule there appears to be an
exception, which is this, that a nation has a right to bind its own citizens
or subjects by its own laws in every place; but this exception is not to be
adopted without some qualification. Story, Confl. of Laws, Sec. 21; Wheat.
Intern. Law, part 2, c. 2, Sec. 7.
6. - 3. Whatever force and obligation the laws of one, country have in
another, depends upon the laws and municipal regulations of the latter; that
is to say, upon its own proper jurisprudence and polity, and upon its own
express or tacit consent. Huberus, lib. 1, t. 3, Sec. 2. When a statute, or
the unwritten or common law of the country forbids the recognition of the
foreign law, the latter is of no force whatever. When both are silent, then
the question arises, which of the conflicting laws is to have effect.
Whether the one or the other shall be the rule of decision must necessarily
depend on a variety of circumstances, which cannot be reduced to any certain
rule. No nation will suffer the laws of another to interfere with her own,
to the injury of her own citizens; and whether they do or not, must depend
on the condition of the country in which the law is sought to be enforced,
the particular state of her legislation, her policy, and the character of
her institutions. 2 Mart. Lo. Rep. N. S. 606. In the conflict of laws, it
must often be a matter of doubt which should prevail; and, whenever a doubt
does exist, the court which decides, will prefer the law of its own country
to that of the stranger. 17 Mart. Lo. R. 569, 595, 596. Vide, generally,
Story, Confl. of Laws; Burge, Confl. of Laws; Liverm. on Contr. of Laws;
Foelix, Droit Intern.; Huberus, De Conflictu Leguin; Hertius, de Collisions
Legum; Boullenois, Traits de la personnalite' et de la realite de lois,
coutumes et statuts, par forme d'observations; Boullenois, Dissertations sur
des questions qui naissent de la contrariete des lois, et des coutumes.
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CONFRONTATION, crim. law, practice. The act by which a witness is brought in
the presence of the accused, so that the latter may object to him, if he
can, and the former may know and identify the accused, and maintain the
truth in his presence. No man can be a witness unless confronted with the
accused, except by consent.
CONFUSION. The concurrence of two qualities in the same subject, which
mutually destroy each other. Potli. Ob. P. 3, c. 5 3 Bl. Com. 405; Story
Bailm. Sec. 40.
CONFUSION OF GOODS. This takes place where the goods of two or more persons
become mixed together so that they cannot be separated. There is a
difference between confusion and commixtion; in the former it is impossible,
while in the latter it is possible, to make a separation. Bowy. Comm. 88.
2. When the confusion takes place by the mutual consent of the owners,
they have an interest in the mixture in proportion to their respective
shares. 2 Bl. Com. 405; 6 Hill, N. Y. Rep. 425. But if one willfully mixes
his money, corn or hay, with that of another man, without his approbation
or knowledge, the law, to guard against fraud, gives the entire property
without any account, to him whose original dominion is invaded land
endeavored to be rendered uncertain, without his consent. Ib.; and see 2
Johns. Ch. It. 62 2 Kent's Comm. 297.
3. There may be a case neither of consent nor of willfulness, in the
confusion of goods; as where a bailee by negligence or unskillfulness, or
inadvertence, mixes up his own goods of the same sort with those bailed; and
there may be a confusion arising from accident and unavoidable casualty.
Now, in the latter case of accidental intermixture, the rule, following the
civil law, which deemed the property to be held in common, might be adopted;
and it would make no difference whether the mixture produced a thing of the
same sort or not; as, if the wine of two persons were mixed by accident. See
Dane's Abr. ch. 76, art. 5, Sec. 19.
4. But in cases of mixture by unskilfulness, negligence, or
inadvertence, the true principle seems to be, that if a man having
undertaken to keep the property of another distinct from, mixes it with his
own, the whole must, both at law and in equity, be taken to be the property
of the other, until the former puts the subject under such circumstances,
that it may be distinguished as satisfactorily as it might have been before
the unauthorized mixture on his part. 15 Ves. 432, 436, 439, 440; 2 John.
Ch. R. 62; Story on Bailm. c. l, Sec. 40. And see 7 Mass. 11. 123; Dane's
Abr. c. 76, art. 3, Sec. 15; Com. Dig. Pleader, 3 M 28; Bac. Ab. Trespass, E
2; 2 Campb. 576; 2 Roll. 566, 1, 15 2 Bul. 323. 2 Cro. 366, 2 Roll. 393; 5
East, 7; 21 Pick. R. 298.
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CONNIVANCE. An agreement or consent, indirectly given, that something
unlawful shall be done by another.
2. The connivance of the husband to his wife's prostitution deprives
him of the right of obtaining a divorce; or of recovering damages from the
seducer. 4 T. R. 657. It may be satisfactorily proved by implication.
3. Connivance differs from condonation, (q.v.) though either may have
the same legal consequences. Connivance necessarily involves criminality on
the part of the individual who connives, condonation may take place without
implying the slightest blame to the party who forgives the injury.
4. Connivance must be the act of the mind before the offence has been
committed; condonation is the result of a determination to forgive an injury
which was not known until after it was inflicted. 3 Hagg. Eccl. R. 350.
5. Connivance differs, also, from collusion (q. Y.); the former is
generally collusion. for a particular purpose, while the latter may exist
without connivance. 3 Hagg, Eccl. R. 130. Vide Shelf. on Mar. & Div. 449; 3
Hagg. R. 82; 2 Hagg. R. 376; Id. 278; 3 Hagg. R. 58, 107, 119, 131, 312; 3
Pick. R. 299; 2 Caines, 219; Anth. N.P. 196.
CONQUEST, feudal law. This term was used by the feudists to signify
purchase.
CONSIMILI CASU. These words occur in the Stat. West. 21 C. 24, 13 Ed. 1.
which gave authority to the clerks in chancery to form new writs in
consimili casu simili remedio indigente sicut prius fit breve. In execution
of the powers granted by this statute, many new writs were formed by the
clerk's in chancery, especially in real actions, as writs of quod permittat
prosternere, against the alienee of land after the erection of a nuisance
thereon, according to the analogy of the assize of nuisance, writs of juris
utrum, c. &c. In respect to personal actions, it has, long been the practice
to issue writs in consimili casu, in the most general form, e. g. in
trespass on the case upon promises, leaving it to the plaintiff to state
fully, and at large, his case in the declaration the sufficiency of which in
point of law is always a question for the court to consider upon the
pleadings and evidence. See Willes, Rep. 580; 2 Lord Ray. 957; 2 Durnf. &
East, 51; 2 Wils. 146 17 Serg. & R.. 195; 3 Bl. Com. 51 7 Co. 4; F. N. B.
206; 3 Bouv. Inst. n. 3482.
CONSISTENT. That which agrees with something else; as a consistent
condition, which is one which agrees with all other parts of a contract, or
which can be reconciled with every other part. 1 Bouv. Just. n. 752,
CONSORT. A man or woman married. The man is the consort of his wife, the
woman is the consort of her husband.
CONSPIRACY, crim. law, torts. An agreement between two or more persons to do
an unlawful act, or an act which may become by the combination injurious to
others. Formerly this offence was much more circumscribed in its meaning
than it is now. Lord Coke describes it as "a consultation or agreement
between two or more to appeal or indict an innocent person falsely and
maliciously, whom accordingly they cause to be indicted or appealed and
afterwards the party is acquitted by the verdict of twelve men."
2. The crime of conspiracy, according to its modern interpretation, may
be of two kinds, Damely, conspiracies against the public, or such as
endanger the public health, violate public morals, insult public justice,
destroy the public peace, or affect public trade or business. See 3 Burr.
1321.
3. To remedy these evils the guilty persons may be indicted in the name
of the commonwealth. Conspiracies against individuals are such as have a
tendency to injure them in their persons, reputation, or property. The
remedy in these cases is either by indictment or by a civil action.
4. In order to reader the offence complete, there is no occasion that
any act should be done in pursuance of the unlawful agreement entered into
between the parties, or that any one should have been defrauded or injured
by it. The conspiracy is the gist of the crane. 2 Mass. R. 337; Id. 538 6
Mass. R. 74; 3 S. & R. 220 4 Wend. R. 259; Halst. R. 293 2 Stew. Rep. 360; 5
Harr. & John. 317 8 S. & R. 420. But see 10 Verm. 353.
5. By the laws of the United State's, St. 1825, c. 76, Sec. 23, 3
Story's L. U. S., 2006, a willful and corrupt conspiracy to cast away, burn
or otherwise destroy any ship or vessel. with intent to injure any
underwriter thereon, or the goods on board thereof, or any lender of money
on such vessel, on bottomry or respondentia, is, by the laws of the United
States, made felony, and the offender punishable by fine not exceeding ten
thousand dollars, and by imprisonment and confinement at hard labor, not
exceeding ten years.
6. By the Revised Statutes of New York, vol. 2, p. 691, 692, it is
enacted, that if any two or more persons shall conspire, either, 1. To
commit any offence; or, 2. Falsely and maliciously to indict another for any
offence; or, 3. Falsely to move or maintain any suit; or, 4. To cheat and
defraud any person of any property, by any means which are in themselves
criminal; or, 5. To cheat and defraud any person of any property, by means
which, if executed, would amount to a cheat, or to obtaining property by
false pretences; or, 6. To commit any act injurious to the public health, to
public morals, or to trade and commerce, or for the perversion or
obstruction of justice, or the due administration of the laws; they shall be
deemed guilty of a misdemeanor. No other conspiracies are there punishable
criminally. And no agreement, except to commit a felony upon the person of
another, or to commit arson or burglary, shall be deemed a conspiracy,
unless some act besides such agreement be done to effect the object thereof,
by one or more of the parties to such agreement.
7. When a felony has been committed in pursuance of a conspiracy, the
latter, which is only a misdemeanor, is merged in the former; but when a
misdemeanor only has been committed in pursuance of such conspiracy, the two
crimes being of equal degree, there can be no legal technical merger. 4
Wend. R. 265. Vide 1 Hawk. 444 to 454; 3 Chit. Cr. Law, 1138 to 1193 3 Inst.
143 Com. Dig. Justices of the Peace, B 107; Burn's Justice, Conspiracy;
Williams' Justice, Conspiracy; 4 Chit. Blacks. 92; Dick. Justice Conspiracy,
Bac. Ab. Actions on the Case, G 2 Russ. on Cr. 553 to 574 2 Mass. 329 Id.
536 5 Mass. 106 2 D R. 205; Whart. Dig. Conspiracy; 3 Serg. & Rawle, 220; 7
Serg. & Rawle, 469 4 Halst. R. 293; 5 Harr. & Johns. 317 4 Wend. 229; 2
Stew. R. 360;1 Saund. 230, u. 4. For the French law, see Merl. Rep. mot
Conspiration Code Penal, art. 89.
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CONSPIRATORS. Persons guilty of a conspiracy. See 3 Bl. Com. 126-71 Wils.
Rep. 210-11. See Conspiracy.
CONSTABLE. An officer, who is generally elected by the people.
2. He possess power, virture officii, as a conservator of the peace at
common law, and by virtue of various legislative enactments; he. way
therefore apprehend a supposed offender without a warrant, as treason,
felony, breach of the peace, and for some misdemeanors less than felony,
when committed in his view. 1 Hale, 587; 1 East, P. C. 303 8 Serg. & Rawle,
47. He may also arrest a supposed offender upon the information of others
but he does so at his peril, unless he can show that a felony has been
committed by some person, as well as the reasonableness of the suspicion
that the party arrested is guilty. 1 Chit. Cr. L. 27; 6 Binn. R. 316; 2
Hale, 91, 92 1 East, P. C. 301. He has power to call others to his
assistance; or he may appoint a deputy to do ministerial acts. 3 Burr. Rep.
1262.
3. A constable is also a ministerial officer, bound to obey the
warrants and precepts of justices, coroners, and sheriffs. Constables are
also in some states bound to execute the warrants and process of justices of
the peace in civil cases.
4. In England, they have many officers, with more or less power, who
bear the name of constables; as, lord high constable of England, high
constable 3 Burr. 1262 head constables, petty constables, constables of
castles, constables of the tower, constables of the fees, constable of the
exchequer, constable of the staple, &c.
5. In some of the cities of the United States there are officers who
are called high constables, who are the principal police officers where they
reside. Vide the various Digests of American Law, h.t.; 1 Chit. Cr. L. 20;
5 Vin. Ab. 427; 2 Phil. Ev. 253 2 Sell. Pr. 70; Bac. Ab. h.t.; Com. Dig.
Justices of the Peace, B 79; Id. D 7; Id, Officer, E 2; Wille. Off. Const.
CONSTABLEWICK. In England, by this word is meant the territorial
jurisdiction of a constable. 5 Nev. & M. 261.
CONSTAT, English law. The name of a certificate, which the clerk of the pipe
and auditors of the exchequer make at the request of any person who intends
to plead or move in the court for the discharge of anything; and the effect
of it is, the certifying what constat (appears) upon record touching the
matter in question.
2. A constat is held to be superior to an ordinary certificate, because
it contains nothing but what is on record. An exemplification under the
great seal, of the enrollment of any letters-patent, is called a constat. Co.
Litt. 225. Vide Exemplification; Inspeximus.
3. Whenever an officer gives a certificate that such a thing appears of
record, it is called a constat; because the officer does not say that the
fact is so, but it appears to be as he certifies. A certificate that it
appears to the officer that a judgment has been entered, &c., is
insufficient. 1 Hayw. 410.
CONSTITUENT. He who gives authority to another to act for him. 1 Bouv. Inst.
n. 893.
2. The constituent is bound with whatever his attorney does by virtue
of his authority. The electors of a member of the legislature are his
constituents, to whom he is responsible for his legislative acts.
CONSTITUIMUS. A Latin word which signifies we constitute. Whenever the king
of England is vested with the right of creating a new office, he must use
proper words to do so, for example, erigimus, constituimus, c. Bac. Ab.
Offices, &c. E.
TO CONSTITUTE, contr. To empower, to authorize. In the common form of
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letters of attorney, these words occur, I nominate, constitute and appoint."
CONSTITUTED AUTHORITIES. Those powers which the constitution of each people
has established to govern them, to cause their rights to be respected, and
to maintain those of each of its members.
2. They arc called constituted, to distinguish them from the
constituting authority which has created or organized them, or has delegated
to an authority, which it has itself created, the right of establishing or
regulating their movements. The officers appointed under the constitution
are also collectively called the constituted authorities. Dall. Dict. mots
Contrainte par corps, n. 526.
CONSTITUTION, government. The fundamental law of the state, containing the
principles upon which the government is founded, and regulating the
divisions of the sovereign powers, directing to what persons each of these
powers is to be confided, and the, manner it is to be exercised as, the
Constitution of the United States. See Story on the Constitution; Rawle on
the Const.
2. The words constitution and government (q.v.) are sometimes employed
to express the same idea, the manner in which sovereignty is exercised in
each state. Constitution is also the name of the instrument containing the
fundamental laws of the state.
3. By constitution, the civilians, and, from them, the common law
writers, mean some particular law; as the constitutions of the emperors
contained in the Code.
CONSTITUTION, contracts. The constitution of a contract, is the making of
the contract as, the written constitution of a debt. 1 Bell's Com. 332, 5th
ed.
CONSTITUTION OF THE UNITED STATES OF AMERICA. The fundamental law of the
United States.
2. It was framed by a convention of the representatives of the people,
who met at Philadelphia, and finally adopted it on the 17th day of
September, 1787. It became the law of the land on the first Wednesday in
March, 1789. 5 Wheat. 420.
3. A short analysis of this instrument, so replete with salutary
provisions for insuring liberty and private rights, and public peace and
prosperity, will here be given.
4. The preamble declares that the people of the United States, in order
to form a more perfect union, establish justice, insure public tranquillity,
provide for the common defence, promote the general welfare, and secure the
blessings of liberty to themselves and their posterity, do ordain and
establish this constitution for the United States of America.
5.-1. The first article is divided into ten sections. By the first
the legislative power is vested in congress. The second regulates the
formation of the house of representatives, and declares who shall be
electors. The third provides for the organization of the senate, and bestows
on it the power to try impeachments. The fourth directs the times and places
of holding elections and the time of meeting of congress. The fifth
determines the power of the respective houses. The sixth provides for a
compensation to members of congress, and for their safety from arrests and
disqualifies them from holding certain offices. The seventh directs the
manner of passing bills. The eighth defines the powers vested in congress.
The ninth contains the following provisions: 1st. That the migration or
importation of persons shall not be prohibited prior to the year 1808. 2d.
That the writ of habeas corpus shall not be suspended, except in particular
cases. 3d. That no bill of attainder, or ex post facto law, shall be passed.
4th. The manner of laying taxes. 5th. The manner of drawing money out of the
treasury. 6th. That no title of nobility shall be granted. 7th. That no
officer shall receive a present from a foreign government. The tenth forbids
the respective states to exercise certain powers there enumerated.
6.-2. The second article is divided into four sections. The first
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vests the executive power in the president of the United States of America,
and provides for his election, and that of the vice-president. The second
section confers various powers on the president. The third defines his
duties. The fourth provides for the impeachment of the president, vice-
president, and all civil officers of the United States.
7.-3. The third article contains three sections. The first vests the
judicial power in sundry courts, provides for the tenure of office by the
judges, and for their compensation. The second provides for the extent of
the judicial power, vests in the supreme court original jurisdiction in
certain cases, and directs the manner of trying crimes. The third defines
treason, and vests in congress the power to declare its punishment.
8.-4. The fourth article is composed of four sections. The first
relates to the faith which state records, &c., shall have in other states.
The second secures the rights of citizens in the several states for the
delivery of fugitives from justice or from labor. The third for the
admission of new states, and the government of the territories. The fourth
guaranties to every state in the Union the republican form of government,
and protection from invasion or domestic violence.
9.-5. The Fifth Article provides for amendments to the constitution.
10.-6. The sixth article declares that the debts due under the
confederation shall be valid against the United States; that the
constitution and treaties made under its powers shall be the supreme law of
the land that public officers shall be required by oath or affirmation to
support the Constitution of the United States that no religious test shall
be required as a qualification for office.
11.-7. The seventh article directs what shall be a sufficient
ratification of this constitution by the states.
12. In pursuance of the fifth article of the constitution, articles in
addition to, and amendment of, the constitution, were proposed by congress,
and ratified by the legislatures of the several states. These additional
articles are to the following import:
13.-1. Relates to religious freedom; the liberty of the press; the
right of the people to assemble and petition.
14.-2. Secures to the people the right to bear arms.
15.-3. Provides for the quartering of soldiers.
16.-4. Regulates the right of search, and of arrest on criminal
charges.
17.-5. Directs the manner of being held to answer for crimes, and
provides for the security of the life, liberty and property of the citizens.
18.-6. Secures to the accused the right to a fair trial by jury.
19.-7. Provides for a trial by jury in civil cases.
20.-8. Directs that excessive bail shall not be required; nor
excessive fines imposed nor cruel and unusual punishments inflicted.
21.-9. Secures to the people the rights retained by them.
22.-10. Secures the rights to the states, or to the people the rights
they have not granted.
23.-11. Limits the powers of the courts as to suits against one of the
United States.
24.-12. Points out the manner of electing the president and vice-
president.
CONSTITUTIONAL. That which is consonant to, and agrees with the
constitution.
2. When laws are made in violation of the constitution, they are null
and void: but the courts will not declare such a law void unless there
appears to be a clear and unequivocal breach of the constitution. 4 Dall. R.
14; 3 Dall. R. 399; 1 Cranch, R. 137; 1 Binn. R. 415 6 Cranch, R. 87, 136; 2
Hall's Law Journ. 96, 255, 262; 3 Hall's Law Journ. 267; Wheat. Dig. tit.
Constitutional Law; 2 Pet. R. 522; 2 Dall. 309; 12 Wheat. R. 270; Charlt. R.
175,.235; 1 Breese, R. 70, 209; 1 Blackf. R. 206 2 Porter, R. 303; 5 Binn.
355; 3 S. & R. 169; 2 Penn. R. 184; 19 John. R. 58; 1 Cowen, R. 550; 1
Marsb. R. 290 Pr. Dec. 64, 89 2 Litt. R. 90; 4 Monr R. 43; 1 South. R. 192;
7 Pick. R. 466; 13 Pick. R. 60 11 Mass. R. 396; 9 Greenl. R. 60; 5 Hayw. R.
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271; 1 Harr. & J. 236; 1 Gill & J. 473; 7 Gill & J. 7; 9 Yerg. 490; 1 Rep.
Const. Ct. 267; 3 Desaus. R. 476; 6 Rand. 245; 1 Chip. R. 237, 257; 1 Aik.
R. 314; 3 N. H. Rep. 473; 4 N. H. Rep. 16; 7 N. H. Rep. 65; 1 Murph. R. 58.
See 8 Law Intell. 65, for a list of decisions made by the supreme court of
the United States, declaring laws to be unconstitutional.
CONSTITUTOR, civil law. He who promised by a simple pact to pay the debt of
another; and this is always a principal obligation. Inst. 4, 6, 9.
CONSTRAINT. In the civil and Scottish law, by this term is understood what,
in the common law, is known by the name of duress.
2. It is a general rule, that when one is compelled into a contract,
there is no effectual consent, though, ostensibly, there is the form of it.
In such case the contract will be declared void.
3. The constraint requisite thus to annul a contract, must be a vis aut
me us qui cadet in constantem virum, such as would shake a man of firmness
and resolution. 3 Ersk. 1, Sec. 16; and 4, 1, Sec. 26; 1 Bell's Conn. B. 3,
part 1, o. 1, s. 1, art. 1, page 295.
CONSTRUCTION, practice. It is defined by Mr. Powell to be "the drawing in
inference by the act of reason, as to the intent of an instrument, from
given circumstances, upon principles deduced from men's general motives,
conduct and action." This definition may, perhaps, not be sufficiently
complete, inasmuch as the term instrument generally implies something
reduced into writing, whereas construction, is equally necessary to
ascertain the meaning of engagements merely verbal. In other respects it
appears to be perfectly accurate. The Treatise of Equity, defines
interpretation to be the collection of the meaning out of signs the most
probable. 1 Powell on Con. 370.
2. There are two kinds of constructions; the first, is literal or
strict; this is uniformly the construction given to penal statutes. 1 Bl.
Com. 88; 6 Watt's & Serg. 276; 3 Taunt. 377. 2d. The other is liberal, and
applied, usually, to remedial laws, in order to enforce them according to
their spirit.
3. In the supreme court of the United States, the rule which has been
uniformly observed in construing statutes, is to adopt the construction
made by the courts of the country by whose legislature the statute was
enacted. This rule may be susceptible of some modification when applied to
British statutes which are adopted in any of these states. By adopting them,
they become our own, as entirely as if they had been enacted by the
legislature of the state.
4. The received construction, in England, at the time they are admitted
to operate in this country - indeed, to the time of our separation from the
British empire - may very properly be considered as accompanying the
statutes themselves, and forming an integral part of them. But, however we
may respect the subsequent decisions (and certainly they are entitled to
great respect,) we do not admit their absolute authority. If the English
courts vary their construction of a statute, which is common to the two
countries, we do not hold ourselves bound to fluctuate with them. 5 Pet. R.
280.
5. The great object which the law has in all cases, in contemplation,
as furnishing the leading principle of the rules to be observed in the
construction of contracts, is, that justice is to be done between the
parties, by enforcing the performance of their agreement, according to the
sense in which it was mutually understood and relied upon at the time of
making it.
6. When the contract is in writing, the difficulty lies only in the
construction of the words; when it is to be made out by parol testimony,
that difficulty is augmented by the possible mistakes of the witnesses as to
the words used by the parties; but still, when the evidence is received, it
must be assumed as correct, when a construction is to be put upon it. The
following are the principal rules to be observed in the construction of
contracts. When. the words used are of precise and unambiguous meaning,
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leading to no absurdity, that meaning is to be taken as conveying the
intention of the parties. But should there be manifest absurdity in the
application of such meaning, to the particular occasion, this will let in
construction to discover the true intention of the parties: for example;
1st. When words are manifestly inconsistent with the declared purpose and
object of the contract, they will be rejected; as if, in a contract of sale,
the price of the thing sold should be acknowledged as received, while the
obligation of the seller was not to deliver the commodity. 2 Atk. R. 32. 2d.
When words are omitted so as to defeat the effect of the contract, they will
be supplied by the obvious sense and inference from the context; as, if the
contract stated that the seller, for the consideration of one hundred
dollars, sold a horse, and the buyer promised to pay him for the said horse
one hundred, the word dollars would be supplied. 1 3d. When the words, taken
in one sense, go to defeat the contract, while they are susceptible of
another construction which will give effect to the design of the parties,
and not destroy it, the latter will be preferred. Cowp. 714.
8.-2. The plain, ordinary, and popular sense of the words, is to be
preferred to the more unusual, etymological, and recondite meaning or even
to the literal, and strictly grammatical construction of the words, where
these last would lead to any inefficacy or inconsistency.
9.-3. When a peculiar meaning has been stamped upon the words by the
usage of a particular trade or place in which the contract occurs, such
technical or peculiar meaning will prevail. 4 East, R. 135. It is as if the
parties in framing their contract had made use of a foreign language, which
the court is not bound to understand, but which on evidence of its import,
must be applied. 7 Taunt. R. 272; 1 Stark. R. 504. But the expression so
made technical and appropriate, and the usage by which it has become so,
must be so clear that the court cannot entertain a doubt upon the subject. 2
Bos. & P. 164; 3 Stark. Ev. 1036: 6 T. R. 320. Technical words are to be
taken according to their approved and known use in the trade in which the
contract is entered into, or to which it relates, unless they have
manifestly been understood in another sense by the parties. Vide 16 Serg. &
R. 126.
10.-4. The place where a contract has been made, is a most material
consideration in its construction. Generally its validity is to be decided
by the law of the place where it is made; if valid there, it is considered
valid every where. 2 Mass. R. 88; 1 Pet. R. 317 Story, Confl. of Laws, 2; 4
Cowen's R. 410, note; 2 Kent, p. 39, 457, in the notes 3 Conn. R. 253, 472;
4 Conn. R. 517. Its construction is to be according to the laws of the place
where it is made for example, where a note was given in China, payable
eighteen months after date, without any stipulation as to the amount of
interest, the court allowed the Chinese interest of one per centum per month
from the expiration of the eighteen mouths. 1 Wash. C. C. R. 253 see 12.
Mass. R. 4, and the article Interest for Money.
11.-5. Previous conversations, and all that passes in the course of
correspondence or negotiation leading to the contract, are entirely
superseded by the written agreement. The parties having agreed to reduce the
terms of their contract to writing, the document is constituted as the only
true and final exposition of their admissions and intentions; and nothing
which does not appear in the written agreement will be considered as a part
of the contract. 5 Co. R. 26; 2 B. & C. 634; 4 Taunt. R. 779. But this rule
admits of some exceptions; as, where a declaration is made before a deed is
executed, showing the design with which it was to be executed, in cases of
frauds; 1 S. & R. 464; 10 S. & R. 292; and trusts, though no trust was
declared in the writing. 1 Dall. R. 426; 7 S. & R. 114.
12.-6. All contracts made in general terms, in the ordinary course of
trade, are presumed to incorporate the usage and custom of the trade to
which they relate. The parties are presumed to know such usages, and not to
intend to exclude them. But when there is a special stipulation in
opposition to, or inconsistent with the custom, that will of course prevail.
Holt's R. 95.
13.-7. When there is an ambiguity which impedes the execution of the
contract, it is first, if possible, to be resolved, on a view of the whole
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contract or instrument, aided by the admitted views of the parties, and, if
indispensable, parol evidence may be admitted to clear it, consistently with
the words. 1 Dall. R. 426; 4 Dall. R. 34 0; 8 S. & R. 609.
14.-8. When the words cannot be reconciled with any practicable or
consistent interpretation, they are to be considered as not made use of
"perinde sunt ac si scripts non essent."
15. It is the duty of the court to give a construction to all written
instruments; 3 Binn. R. 337; 7 S. & R. 372; 15 S. & R. 100 4 S. & R. 279 8
S. & R. 381; 1 Watts. R. 425; 10 Mass. R. 384; 3 Cranch, R. 180 3 Rand. R.
586 to written evidence 2 Watts, R. 347 and to foreign laws, 1 Penna. R.
388. For general rules respecting the construction of contracts, see 2 Bl.
Com. 379; 1 Bouv. Inst. n. 658, 669; 2 Com. on Cont. 23 to 28 3 Chit. Com.
Law, 106 to 118 Poth. Oblig. P. 1, c. 1, art. 7; 2 Evans' Poth. Ob. 35; Long
on Sales, 106; 1 Fonb. Eq. 145, n. b Id. 440, n. 1; Whart. Dig. Contract, F;
1 Powell on Contr. 370 Shepp. Touchst. c. 5 Louis. Code, art. 1940 to 1957;
Corn. Dig. Merchant, (E 2,) n. j.; 8 Com. Dig. tit. Contract, iv.; Lilly's
Reg. 794; 18 Vin. Abr. 272, tit. Reference to Words; 16 Vin. Abr. 199, tit.
Parols; Hall's Dig. 33, 339; 1 Ves. Jun. 210, n.; Vattel, B. 2, c. 17; Chit.
Contr. 19 to 22; 4 Kent. Com. 419; Story's Const. Sec. 397-456; Ayl. Pa d.
B. 1, t. 4; Rutherf. Inst. B. 2, c. 7, Sec. 4-11; 20 Pick. 150; 1 Bell's
Com. 5th ed. 431; and the articles, Communings; Evidence; Interpretation;
Parol; Pourparler. As to the construction of wills, see 1 Supp. to Ves. Jr.
21, 39, 56, 63, 228, 260, 273, 275, 364, 399; 1 United States Law Journ.
583; 2 Fonb. Eq. 309; Com. Dig. Estates by Devise. N 1; 6 Cruise's Dig. 171
Whart. Dig. Wills, D. As to the construction, of Laws, see Louis. Code, art.
13 to 21; Bac. Ab. Statutes, J; 1 Bouv. Inst. n. 86-90; 3 Bin. 858; 4 Bin.
169, 172; 2 S. & R. 195; 2 Bin. 347 Rob. Digest, Brit. Stat. 370; 7 Term.
Rep. 8 2 Inst. 11, 136; 3 Bin. 284-5; 3 S. & R. 129; 1 Peere Wms. 207; 3
Burr. Rep. 1755-6; 3 Yeates, 108; 11 Co. 56, b; 1 Jones 26; 3 Yeates, 113
117, 118, 120; Dwarris on Statutes.
16. The following words and phrases have received judicial construction
in the cases referred to. The references may be useful to the student and
convenient to the practitioner.
A and his associates. 2 Nott.& M'Cord, 400.
A B, agent. 1 Breese's R. 172.
A B, (seal) agent for C D. 1 Blackf. R. 242.
A case. 9 Wheat. 738.
A piece of land. Moor. 702; S. C. Owen, 18.
A place called the vestry. 3 Lev. R. 96; 2 Ld. Raym. 1471.
A slave set at liberty. 3 Conn. R. 467.
A true bill. I Meigs, 109.
A two penny bleeder. 3 Whart. R. 138.
Abbreviations. 4 C. & P. 51; S. C. 19 Engl. C. L. R. 268.
Abide. 6 N. H. Rep. 162.
About. 2 Barn. & Adol. 106; 22 E. C. L. R. 36; 5 Greenl. R. 482. See 4
Greenl. 286. About _____ dollars. 5 Serg. & Rawles, 402.
About $150. 9 Shep. 121.
Absolute disposal. 2 Eden, 87; 1 Bro. P. C. 476; 2 Johns. R. 391; 12 Johns.
R. 389.
Absolutely. 2 Pa. St. R. 133.
Accept. 4 Gill & Johns. 5, 129
Acceptance. There is your bill, it is all right. 1 Esp. 17. If you will send
it to the counting-house again, I will give directions for its being
accepted. 3 Camp. 179. What, not accepted ? We have had the money, and
they ought to have been paid; but I do not interfere; you should see my
partner. 3 Bing. R. 625; S. C. 13 Eng. C. L. R. 78. The bill shall be duly
honored, and placed to the drawer's credit. 1 Atk. 611. Vide Leigh's N. P.
420.
Accepted. 2 Hill, R. 582.
According to the bill delivered by the plaintiff to the defendant. 3 T. R.
575.
According to their discretion. 5 Co. 100; 8 How,. St. Tr. 55 n.
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Account. 5 Cowen, 587, 593. Account closed. 8 Pick. 191. Account stated. 8
Pick. 193. Account dealings. 5 Mann. & Gr. 392, 398.
Account and risk. 4 East, R. 211; Holt on Sh. 376.
Accounts. 2 Conn. R. 433.
Across. 1 Fairf. 391.
Across a country. 3 Mann. & Gr. 759.
Act of God. 1 Cranch, 345; 22 E. C. L. R. 36; 12 Johns. R. 44; 4
Add. Eccl. R. 490.
Acts. Platt on Cov. 334.
Actual cost. 2 Mason, R. 48, 393, 2 Story's C. C. R. 422.
Actual damages. 1 Gall. R. 429.
Adhere. 4 Mod. 153.
Adjacent. Cooke, 129.
Adjoining. 1 Turn. R. 21.
Administer. 1 Litt. R. 93, 100.
Ad tunc et indem. I Ld. Raym. 576.
Advantage, priority or preference. 4 W. C. C. R. 447.
Adverse possession. 3 Watts, 70, 77, 205, 345; 3 Penna. R. 134; 2 Rawle's R.
305; 17 Serg. & Rawle, 104; 2 Penna. R. 183; 3 Wend. 337, 357; 4 Wend.
507; 7 Wend. 62; 8 Wend. 440; 9 Wend. 523; 15 Wend. 597; 4 Paige, 178; 2
Gill & John. 173; 6 Pet. R. 61, 291 11 Pet. R. 41; 4 Verm. 155; 14 Pick.
461.
Advice. As per advice. Chit. Bills, 185.
Affecting. 9 Wheat. 855.
Aforesaid. Ld. Baym. 256; Id. 405.
After paying debts. 1 Ves. jr. 440; 3 Ves. 738; 2 Johns. Ch. R. 614; 1 Bro.
C. C. 34; 2 Sch. & Lef. 188.
Afterwards to wit. 1 Chit. Cr. Laws, 174.
Against all risks. 1 John. Cas. 337.
Aged, impotent, and poor people. Preamble to Stat. 43 Eliz. c. 4; 17 Ves.
173, in notes; Amb. 595; 7 Ves. 423; Scho. & Lef. 111; 1 P. Wims. 674; S.
C. Eq. Cas. Ab. 192, pl. 9; 4 Vin. Ab. 485; 7 Ves. 98, note; 16 Ves. 206:
Duke's Ch. Uses, by Bridgman, 361; 17 Ves. 371; Boyle on Charities, 31.
Agreed. 1 Roll's Ab. 519,
Agreement. 7 E. C. L. R. 331; 3 B. & B. 14; Fell on Guar. 262. Of a good
quality and moderate price. 1 Mo. & Malk. 483; S. C. 22 E. C. L. R. 363.
Aiding and abetting. Act of Congress of 1818, c. 86, Sec. 3; 12 Wheat. 460.
Aliments. Dig. 34, 1, 1.
All. 1 Vern. 3; 3 P. Wms. 56; 1 Vern. 341; Dane's Ab. Index, h.t.
All debts due to me.; 1 Meriv. 541, n.; 3 Meriv. 434. All I am worth. 1 Bro.
C. C. 487; 8 Ves. 604. All I am possessed of. 5 Ves. 816. All my clothes
and linen whatsoever. 3 Bro. C. C. 311. All my household goods and
furniture, except my plate and watch. 2 Munf. 234. All my estate. Cows,
299; 9 Ves. 604. All my real property. 18 Ves. 193. All my freehold lands.
6 Ves. 642. All and every other my lands, tenements, and hereditaments. 8
Ves. 256; 2 Mass. 56; 2 Caines' R. 345; 4 Johns. R. 398. All the
inhabitants. 2 Conn. R. 20. All sorts of. 1 Holt's N. P. R. 69. All
business. 8 Wendell. 498; 23 E. C. L. R. 398; 1 Taunt. R. 349; 7 B. & Cr.
278, 283, 284.
All claims and demands whatsoever. 1 Edw. Ch. R. 34. All baggage is at the
owner's risk. 13 Wend. R. 611; 5 Rawle's R. 179; 1 Pick. R. 53; 3 Fairf R.
422; 4 Har. & John. 317. All civil suits. 4 S. & R. 76. All demands. 2
Caines' R. 320, 327; 15 John R. 197; 1 Ld. Raym. 114. All lots I own in
the town of F. 4 Bibb, R, 288. All the buildings thereon. 4 Mass. R. 110;
7 John. R. 217. All my rents. Cro. Jac. 104. All I am worth. 1 Bro. C. C.
437. All and every other my lands, tenements, and hereditaments. 8 Ves.
246; 2 Mass. 56; 2 Caines' R. 345; 4 John. Ch. 388.
All other articles perishable in their own nature. 7 Cowen, 202.
All and every. Ward on Leg. 105; Cox, R. 213.
All minerals, or magnesia of any kind. 5 Watts, 34.
All my notes. 2 Dev. Eq. R. 489.
All that I possess, in doors and out of doors. 3 Hawks, R. 74.
All timber trees and other trees, but not the annual fruit thereof. 8 D. &
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R. 657; S. ic. 5 B. & C, R. 942.
All two lots. 7 Gill & Johns. 227.
All action. 5 Binn. 457.
Also. 4 Rawle, R. 69; 2 Bayw. 161
Amongst. 9 Ves. 445; 9 Wheat. R. 164; 6 Munf. 352.
And, construed or. 3 Ves. 450; 7 Ves. 454; 1 Supp. to Ves. jr. 435; 2 Supp.
to Ves. jr. 9, 43, 114; 1 Yeates, 41, 319; 1 Serg. & Rawle, 141. Vide
Disjunction, Or.
And all the buildings thereon. 4 Mass. R. 110; 7 John R. 217.
And also. 1 Hayw. 161.
And so on, from year to year, until the tenancy hereby created shall be
determined as hereinafter mentioned. 1 P. & D. 454; and see 2 Campb. R.
573; 3 Campb. 510; 1 T. R. 378.
And the plaintiff doth the like. 1 Breese's R. 125.
Annual interest. 16 Verm. 44.
Annually, or in any way he may wish. 2 M'Cord's Ch. R. 281.
Any person or persons. 11 Wheat. R. 392; 3 Wheat. R. 631.
Any court of record. 6 Co. 19.
Any goods. 3 Campb. 321.
Any creditor. 5 B. & A. 869.
Any other fund. 1 Colly. R. 693.
Any other matter or thing from the beginning of the world. 4 Mason, 227.
Apartment. 10 Pick. 293.
Apparel. Goods and wearing apparel, in a will. 3 Atk. 61.
apparatus. 9 Law Rep. 207.
Appeals. 1 Breese's R. 261.
Appear. 2 Bailey's R. 513.
Appellate. 1 Breese's R. 261
Appropriation. 1 Scam. R. 344.
Approved paper. 4 Serg. & Rawle, 1; 20 Wend. R. 431; 2 Campb. 532.
Appurtenances. 1 Serg. & Rawle, 169; 8 Johns. R. 47, 2d edit.; Com. Dig.
Grant, E 9; 5 Serg. & Rawle, 110; Holt on Shipp. 404; 9 Pick. 293; 7 Mass.
6; 12 Pick. 436.
Are. 2 B. & B. 223.
Arrears. Ward on Leg. 219; 2 Ves. 430.
Arrive. 17 Mass. 188.
Articles perishable in their own nature. 7 Cowen, 202.
As appears by the bond or by the books. 1 Wils. 339, 279, 121; 2 Str. 1157,
1209, 1219.
As appears by the master's allocator. 2 T. R. 55.
As executors are bound in law to do. 2 Ohio R. 346.
As follows. 1 Chit. Cr. Law 233.
As this deponent believes. 2 M. & S. 563.
Ass. 2 Moody, C. C. 3.
Asses-Cattle. 1 R. & M. C. C. 3; 2 Russ. Cr. & M. 498.
Assent to. 4 Gill & Johns. 5, 129.
Assignment, actual or potential. 5 M. & S. 228.
Assigns. 5 Co. 77 b.
At. 2 Caines' Err. 158.
At and from. 1 Marsh. Ins. 358, 261, a; 1 Caines' R. 75, 79; 1 New Rep. 23;
4 East, R. 130.
At any port or places. 1 Marsh. Ins. 191.
At his will. Roll's Ab. 845; Bac. Ab. Estate for life and occupancy, A.
At least. 8 W. & S. 470.
At such time and manner. 19 Ves. 387.
At twenty-one. Payable at twenty-one. 6 Ves. 245.; 7 ves. 412; 9 Ves. 225; 1
Bro. C. C. 91.
At the trial of the cause. 9 E. C. L. R. 202, 186.
At the wholesale factory price. 2 Conn. R. 69.
Attention, shall meet. 3 E. C. L. R. 407; 13 Id. 329.
Attest. 9 Mees. & W. 404.
Authority-Jurisdiction. 2 Bl. R. 1141.
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Baggage. 6 Hill, N.Y. 586.
Baggage of Passengers at the risk of the owners. 19 Wend. 234, 251; 21 Wend.
153; 26 Wend. 591; 17 Verm. 151.
Bank money. 5 Humph. R. 140.
Bank notes. 5 Mason's R. 549; 6 Wend. 346, 354.
Bankruptcy. 6 T. R. 684.
Bar-keeper. 3 S. & R. 351.
Bargain and sell. 4 Monr. R. 463.
Barley. 4 C. & P. 548.
Barrels. 7 Cowen, R. 681.
Beans. Bac. Ab. Merchant, &c. I. 1 Mood. C. C. 323.
Bearing Interest. 1 Stark. r. 452; 2 E.C. L.R. 466.
Beast. 1 Russ. C. & M. 568; 1 Russ. on Cr. 568; Bac. Ab. Sodomy.
Beef. 6 W. & S. 279.
Before the next term. 1 Binn. 76; 4 Yeates, 511.
Before the first day of the term after the action has been commenced. 4
Dall. 433.
Before the sitting of the court. 5 Mass. R. 197.
Beginning to keep house. 6 Bing. R. 363; 19 Ves. 543.
Begotten. To be begotten. Co. Litt. 20 b, and n. 3; 3 Leon. 5.
Belongs - Belonging. 3 Conn. R. 467; 2 Bing. 76; Chit. Pr. 475 n.; 11 Conn.
R. 240; 1 Coxe's R. 255.
Believe. 2 Wend. 298.
Belong. 3 Conn. R. 467.
Benefits of my real estate, construed, 4 Yates, 23.
Benevolent purposes. 3 Mer. 17; Amb. 585, n. (Blunt's Edit.)
Best of his knowledge and belief. 1 Paige, 404; 3 Id. 107, 212.
Between. 2 Saund. 158 b. n. 6; 1 Shipl. R. 201; 1 Mass. 91.
Between them. 2 Mer. R. 70.
Beyond sea. 3 Wheat. R. 541; 3 Cranch, R. 177; 14 Pet. C. 141; I Harr. &
McHen. 89; 1 Har. & J. 350; 2 McCord, R. 331; 3 Mass. R. 271; 1 Pick. R.
263; 9 Serg. & Rawle, 288; 2 Dall. 217; 1 Yeates, 329. Vide Beyond 8ea, in
the body of the work.
Beyond seas. 3 Wheat. 343; 9 S. & R. 291.
Bien. 2 Ves. 163.
Big. 2 Dev. R. 115.
Blubber. 1 Story, R. 603.
Board, boarding. 2 Miles, R. 323.
Bag. Cro. Car. 511.
Boiler. Wright, 143.
Book. 2 Campb. 25, 28, n.; 11 East, 244.
Book debt-Book entries. 2 Miles, R. 101, 102; 3 Ired. R. 77, 443; 4 Ired.
110.
Bona fide. 1 Leigh. N. P. 326.
Boons. Sugd. Pow. 633, 671.
Bound by surety. 5 Serg. & Rawle, 329.
Bound with surety, 6 Binn. 53.
Bounded on the margin. 6 Cowen, 526.
Bounded on the road. 13 Mass. 259.
Breach of good behaviour. 2 Mart. N. S. 683.
Brick factory. 21 Pick. R. 25.
Building. 16 John. R. 14; 13 John. R. 346; 9 Bing. 305; 5 Mann. & Gr. 9, 33.
Business. 1 M. & Selw. 95.
Butcher. 1 Barn. & A. 617; 6 Watts & Serg. 269, 277.
By act and operation of law. 3 Caines' R. 64.
By surety. 5 Serg. & Rawle, 329.
By a certain time. Penna. R. 48.
By any other means. 2 Co. 46
By virtue of his office. 3 E. C. L. R. 425.
By a stream. 3 Sumn. R. 170.
By next November. 3 Pa. 48.
By the year. 2 Miles, R. 302.
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Cabinet of curiosities. 1 Cox, R. 77; 1 Bro. C. C. 467.
Came by descent, gift, or devise. 2 Pet. 58.
Cargo. 4 Pick. 433; 2 Gill & John. 134, 162.
Case-suit. 2 Murph. 320.
Catchings. 1 Story, R. 603.
Cattle. 1 R. & M. C. C. 3; 2 Russ. C. & M. 498; R. & R. C. C. 77; 2 East, P.
C. 1074; 1 Leach, C, C. 72; 2 W. Black. 721; 2 Moody, C: C. 3.
Cause. 1 Supp. to Ves. jr. 510.
Cause of action. Wilk. on Lim. [49).
Cease. Coop. Ch. R. 14.5.
Cede. 1 liar. (N. J.) 181.
Certificate of deposit. 6 Watts & Sero,. 227.
Chamber or rooms. 3 Leon. 210.
Chambres. 5 Watts, R. 243,
Charged in execution. 4 T. R. 367.
Charges, costs, and expenses, 2 Wils. 267; 13 Serg. & Rawle, 79.
Charitable uses. Boyle on Charities, 281; 7 Ves. 79; 1 Mer. 86, 92, 93; 1
Sim. & Stu. 69; 1 Myl. & Craig, 286; 4 Wheat. App. p. 6.
Charity. 9 Ves. 399.,
Cheat. 2 Hale's Hist. P. C. 183: Bac. Ab. Indictment, G 3.
Chiefest and discreetest. 13 Ves. 13.
Child, grandchild, issue, son; see Legatee; 1 Ves. 290; Id. 335; Ambl. 397;
Id. 701; 5 Burr. 2703; Cowp. 314; 3 Anstr. 684; Lofft, 19; 7 T. R. 322; 1
East, 120; 2 Eden, 194; 2 Bro. C. C. 33: 2 Ves. jr. 673; 3 Ves. 232; Id.
421; 4 Ves. 437; Id. 692; 5 Ves. 530; 6 Ves. 43, Id. 345; 7 Ves. 522; 10
Ves. 160, Id. 176; Id. 195; 13 Ves. 340; 1 Cox, 248; Id. 327; 2 Cox, 184;
1 Ves. & Bea. 422, 462, 469; 2 Ves. & Bea. 213; 3 Ves. & Bea. 59, 67, 69,
113; 1 Meriv. 654; 2 Meriv. 382; Dick. 344; 1 Eden, 64; 1 Bro. C. C. 530;
2 Bro. C. C. 68, 230, 658; 3 Bro. C. C. 148, 347, 352, 434: 1 Bro. C. C.
55; 19 Ves. 125; 1 Ball & B. 486; Com. Dig. App., Devise of real property,
x. 5, 6, 7, 8, 9; Id. Devise of personal property, viii. 13.
Child's part. 2 Roll. R. 104; Poph. 148; 1 Roll. R. 193; Cro. Jac. 417.
Children. 3 Paige, 10; 5 Ves. 530; 1 Ves. & Bea. 434; 4 Eng. Ch. R. 565; 5
Conn. R. 228.
To such child or children, if more than one, as may happen to be enceinte by
me. 17 Ves. 528.
To the children which I may have by A, living at my decease. 1 Ves. & Bea.
422.
Chromate of iron. 5 Watts, 34.
Civil action. 6 Binn. 5; 1 Binn. 197.
Civil suit. 4 S. & R. 76.
Chuck-a-luck. 3 J. J. Marsh. 133.
Claim. 16 Pet. 538, 575, 576, 604, 615.
Clear. Ambl. 273; 2 Ves. 500. Ward on Leg. 222; 2 Atk. 376.
Clear of all charges and assessments whatever. 4 Yeates, 386.
Clear deed. 3 W. & S. 563, 565.
Closing an account. 7 Serg. & Rawle, 128; 8 Pick. 187.
Clothes. All my clothes and linen whatsoever. 3 Bro. C. C. 311.
Coal mine. Cro. Jac. 150; Noy, 121; Gilb. Ej. 61, 2d ed.; Rosc. R. Act. 486.
Coasting trade. 3 Cowen, R. 713,
Coffer. 2 Hale's Hist. P. C. 3; Bac. Ab. Indictment, G 3.
Cohabitation. 1 Add. R. 476; 3 Add. R. 277; 2 Tyrw. 76; 2 Cr. & J. 66;
Rogers' Eccl. Law, tit. Marriage.
Collateral. Sugd. Pow. 76.
Collectable. 8 Watts, R. 361.
Come to. 1 Serg. & Rawle, 224; 2 Pet. R. 69, 94.
Commenced. 14 East, 539.
Commerce - Navigation. 9 Wheat. 1.
Commission and guaranty. 3 Whart. 288.
Commit. 3 Man. Gr. & Scott, 465, 477.
Commit suicide. 3 Man. Gr. & Scott, 477.
Commodities. 12 Mass 256.
Common law. 3 Pet. 447; 1 Gall. R. 19.
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Complete Steam engine. 2 Hall, 3128.
Concealed. 12 Wheat. 493; 12 Wheat. R. 486.
Conclusive. 5 Binn. 387; 6 Binn. 128; 4 Yeates, 551.
Conditions performed. 1 Call. 567.
Confidence. Boyle on Char. 319; 2 Pa. St. R. 133.
Consent - Submission. 9 C. & P. 722.
Consentable lines. 10 Serg. & Rawles 110.
Construction. 3 Mont. 166.
Containing. 1 Murph. 348.
Contents unknown. 3 Taunt. R. 303.
Contrary to law. 1 Blackf. R. 318.
Convenient speed, or as soon as convenient. 19 Ves. 336, 390, notes; 1 Ves.
jr. 366.
Convey. 3 A. K. Marsh, 618.
Conveyance. 2 Serg. & Rawle, 498; 3 Mass. 487.
Convicted. 1 Wheat. 461; 15 East, R. 570; 7 Mann. & Gr. 481, 508.
Copper-fastened. 24 E. C. L. IR. 415.
Coppered, ship. 8 Pet. 557.
Corrupt. 1 Benth. Ev. 351.
Correcting - revising. 2 Shepl. 205.
Cost. 2 Wash. C. C. R. 498.
Costs. Wright, 121. Pay his own costs. 1 Hayw. 485.
Cotton in bales. 2 C. & P. 525.
County aforesaid. 2 Bl. R. 847.
Court of record. 5 Ohio R. 546. Vide 3 Wend. 267.
Cousins. 2 Bro. R. 125; Ward on Leg. 121.
Covenants. Provided always, and it is agreed that the lessor shall find
great timber, Bac. Ab Covenant, A. I oblige myself to pay so much money.
Hard. 178. I am content to give A ten pounds at Michaelmas, and ten pounds
at Ladyday. 3 Leon. 119. With usual covenants. 15 Ves. 528; 3 Anstr. 700.
Covenants Performed absque hoc. 6 Penn. St. Rep. 398.
Credible. Com. R. 91; S. C. 1 Freem. 510.
Credible witness. 5 Mass. 219; 12 Mass. 358; 17 Pick. 134; 2 Bailey, R. 24;
8 Conn. 254.
Credit. Mutual credit. 1 Atk. 228; 7 T. R. 378; Montag. on Set-off, 48; 8
Taunt. 22; S. C. 4 Eng. Com. Law Rep. 4; 1 Marsh. R. 190; S. C. 4 Eng. C.
L. 335.
Creditors and subsequent purchasers. 5 Cranch, 165.
Criminal proceeding. 2 Q. B. 1.
Cross. 5 Pick. 163.
Cruise of three months. 2 Gallis. 526.
Cultivation. 2 N. H. Rep. 56.
Curby hock. Oliph. on Horses, 10.
Currency. 1 Ohio R. 119.
Current money. 1 Dall. 126, 176.
Current rate of exchange to be added. 2 Miles, R. 442, 443.
Current lawful money. 1 Dall 175.
Current bank notes. 1 Hamm. R. 178. See also 1 Hamm. R. 531; 1 Breese, R.
152; 3 Litt. R. 245; 19 John. R. 146; 1 Dall. 126, 176; 1 Ohio R. 119.
Current bank money. 5 Humph. R. 140.
Curricle. Anthon, 114.
Cutting. Russ. & Ry. Cr. Cas. 104.
I guaranty the payment of the within note at the insolvency of the drawers.
5 Humph. 476.
I return A his bonds. 3 Ves. 231.
I warrant this note good. 14 Wend. 231.
If. Touchs. 123; Co, Lit. 204; Id. 214 b
Immediate. 2 Lev. 77; 7 Mann. & Gr. 493.
Immediately. 4 Younge & Col. 511.
Immovables. Ward on Leg. 210.
Impedimentum. Bac. Tr. 211.
Impelitio. Bac. Tr. 211.
Implements. 9 Law Reporter, 207.
Improvement. 4 Pick. 204.
In all the month of May. 3 W. C. C. R. 140.
In actual military service. 3 Curt. R. 522; 7 Eng. Eccl. R. 496.
In current bank notes. 1 Ham. R. 178. See also 1 Ham. R. 531; 1 Breese, R.
152, Litt. R. 245; 1 Ohio R. 119; 1 Dall. R. 126, 176; 19 John. R. 146.
In default of such issue. 7 East, R. 521; 3 T. R. 484.
In fullest confidence. T. & R. 143
In like manner. Ward on Leg. 246; 4 Ves. 732; 1 Sim. & St. 517.
In manner aforesaid. Ward on Leg. 246; 5 Ves. 465.
In the fullest confidence. Turn. & Russ. 157.
In money or negroes. 4 Bibb, R. 97.
In the occupation of. 2 Bing. R. 456. 1 B. & C. 350.
In case of the death. Swanst. 162.
Income. 9 Mass. R. 372; 1 Metc. 75.
Inde. Co. Litt. 82 b.
Indebted. 15 Serg. & Rawle, 142;. 3 Caines' R. 323; 17 S. & R. 285.
Indefeasible title. 3 Bibb, R. 317.
Indirect. 2 Gill & John. 382.
Indorse. 7 Pick. 117.
Infamous crime. 1 Moody, Cr. Cas. 34, 38.
Inferior tradesmen. 1 Lord Raym. 149; Com. Rep. 26; 5 Mod. 307; Bac. Ab.
Costs, B.
Inhabitants of a neighborhood. 10 Pick. R. 367.
Insolvent circumstances. 2 Harr. Dig. 202; Chit. on Bills, 120; McClel. &
Yo. 407.
Instantly. 3 Perr. & Dav. 52; 8 Dowl. 157.
Intended to be recorded. 2 Rawle, 14.
Intent to defraud - Intent to deceive. Rob. Fr. Cony. 30; and see 8 John. R.
446; 12 John. 120; 2 John. Ch. R. 35; 4 Wheat. R. 466.
Intents and purposes. To all intents and purposes. 11 Ves. 530.
Investment. 15 Johns. 384, 392
Irregularly. 1 Cowen, 73 S, b.
Irreparable. 3 Mart. N. S. 25.
Is indebted to the plaintiff in trover. 1 H. Bl. 218.
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Is indebted to the plaintiff upon promises. 2 Dougl. 467; and see Say, R.
109.
Issue. 3 Ves. & Bea. 67; 13 Ves. 340; 3 Ves. 421; 7 Ves. 522; 1 Dall. 47; 1
Yeates, 332; 3 Ves. 257; 1 Cox, 38. Failure of issue. 1 B. B. 1. Die
without issue. 17 Ves. 482.
Issuably. 3 Chit. Pr. 705.
It shall and may be lawful. 1 Edw. R. 84.
It shall be lawful. 8 N. S. 539.
It shall be lawful for the court. 1 John. Ch. R. 491.
Ita quod. Ld. Raym. 760.
Jewels. Ward on Leg. 221; Mos. 112.
Jewelry. 14 Pick. 370. Vide infra Trinkets.
Jockey. 8 Scott, N. S. 5S4.
Joint and equal proportions. Jointly. Ambl. 656; 1 Bro. C. C. 118; 2 Rop.
Leg. 267. Joint and several. 2 Day, 442; 1 Caines' Cas. 122; 1 Consts. R.
486; 1 Cox, 200; 4 Desaus. 148; 7 Serg. & Rawle, 356.
Judicial proceedings. 5 Ohio, 547; 3 M. R. 248; 4 M. R. 451; 6 M. R. 668; 7
M. R. 325; 9 M. R. 204, 325; 10 M. R. 1; L. R. 438; 3 N. S. 551; 5 N. S.
519.
Junior. 8 John. 549; 8 Conn. R. 293.
Just debts. 1 Binn. 209; 9 Mass. 62.
Justifiable cause. 1 Sumn. 194.
Kept. 4 Scamm. 168.
Kin. Next of kin. 15 Ves. 109; Id. 583; 3 Bro. C. C. 355. Next of
kin or heir at law. 4 Ves. 469. Next of kin, in equal degree. 12 Ves. 433.
King's enemies. 1 Leigh's N. P. 509.
King and being privy to. Platt on Cov. 338.
Laborer. 1 Lo. Rep. 268.
Lamb - Mutton. 1 Moody, Cr. Cas. 242; and see Russ. & Ry. 497.
Lampooner. 3 Lev. 248.
Last past - August last past. 3 Cowen, 70.
Last sickness. 20 John. 502.
Last will. 7 T. R. 138.
Law charges. 3 Mart. Lo. R. 282.
Law of the land. 2 Yerg. 554; 6 Penna. St. Rep. 87, 91; 4 Dev. 1.
Lawful. Lawful heir. 2 T. R. 720.
Lawful deed of conveyance. 2 Serg. & R. 499.
Lawful money. 1 Yeates, 349; 1 Dall. 126, 176.
Lawful, Shall be. 2 D. & R. 172; 4 B. & A. 271; 1 B. & C. 35, 8.
Lawful title. 1 Blackf. 380; 2 Greenl. R. 22; 10 John. R. 266.
Lawful deed. 2 S. & R. 498; Coxe, 106.
Lawful current money of Pennsylvania. 1 Dall. 124.
Lawfully demanded. 2 M. & S. 525.
Leaving children. 7 T. R. 332, and see 7 Ves. 453; 9 Ves. 204; 6 T. R. 307.
Vide Having Children.
Leasehold ground rents. Ward on Leg. 222; 1 Bro. 76.
Legal representatives. 3 Ves. 486; 3 Bro. C. C. 224; 1 Yeates 213; 2 Yeates,
585; 2 Dall. 205; 6 Serg. & Rawle, 83; 1 Anstr. 128.
Lend. 1 Hill's Ch. 37.
Lent.. Bac. Ab. Assumpsit F; 2 Wils. 141.
Let. 5 Whart. R. 278.
Level. 5 Ad. & El. 302; 4 Nev. & Man. 602.
Life estate. 500 to the sole use of N, or of her children, forever. 1 Cox,
341; vide 12 Ves. 295; 1 Rose, 200; 13 Ves. 486; 13 Ves. 445; 2 Eden, 323;
Amb. 499; 4 Bro. C. C. 541; 1 Bay, 447.
Limit and appoint. 5 D. & E. 124.
Limn. 3 Bro. C. C. 311.
Literary composition. Eden, Inj. 324.
Live and dead stock. Ward on Leg. 220; 3 Ves. 311.
Livelihood. 3 Atk. 399.
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Living together. 1 Add. R. 476; 3 Add. R. 277; 2 Tyrw. 76; 2 Cr. & J. 66;
Rogers' Eccl. Law, tit. Marriages.
Loaded arm. 1 Carr. & Kirw. 530; S. C. 47 Eng. C. L. R. 530.
Lost or not lost. 1 Marsh. Ins. 332; Park, Ins. 25; 5 Burr. 2803; Wesk. 345.
Loaf sugar. 1 Sumn. R. 159.
Lot No. 54. 1 Verm. R. 336; 18 John. R. 107; 5 N. R. Rep. 58.
Lots. 4 Ohio, 5.
Lying at the wharf. 2 McCord, 105.
Made. 1 Cranch, 239.
Made his note to the plaintiff for $760. 1 Breese's R. 122.
Magistrate. 13 Pick. 523.
Make over and grant. 18 John. 60; 3 John. R. 484.
Maintenance. 4 Conn. R. 558; 2 Conn. R. 155; 2 Sandf. Ch. R. 91. See
Support.
Mange. Oliph. on Horses, 46.
Mankind. Fortescue. 91.
Mare. 1 Leach, 72; 2 W. Bl. 721; 2 East, P. C. 1074.
Manner or Seaman. 2 Curt. Eccl. R. 336.
Mark. Trade mark. See 19 Pick. 214.
Married. Dying unmarried; without being married, and having children. 1 Rop.
Leg. 412; 3 Ves. 450, 454; C, 7 Ves. 454.
Matter in controversy. 2 Yeates, 276; 1 Serg. & Rawle, 269; 5 Binn. 522; 3
Dall. 404; 2 Dall. 260, n.
Matter in dispute. 3 Cranch, 159.
Matters in difference. 5 Mass. 334.
May. 1 Saund. 58, n. 1; 5 Johns. Ch. R. 101; 5 Cowen, 195; 14 Serg. & Rawle,
429; 1 E. C. L. R. 46; 1 Pet. R. 46.
May assign. May suggest. Ib.; St 8 and 9 W. 3, c. 11, s. 8.
Meadows. 5 Cowen's R. 216; Co. Litt. 4, b.
Means. Platt. on Cov. 334-5.
Medals. Ward. on Leg. 221; 3 Atk. 201.
Merchandise. 8 Pet. 277.
Merchantable. 3 Campb. R. 462.
Merchantable quality. 20 Wend. R. 61.
Merits. 3 Watts & Serg. 273.
Mess. 2 Russ. C. & M. 360.
Mess Pork of Scott & Co. 2 Bing. N. C. 668.
Messuage and house. Cro. Eliz. 89; 2 Ch. Cas. 27; 2 T. R. 498; 1 Boss. &
Pull. 53.
Mill. 5 Serg. & Rawle, 107.
Mill privilege. 4 Shepl. R. 63.
Mill saw. 1 Fairf. R. 135.
Mill site. 15 Pick. 57; 6 Cowen, R. 677; 11 John. R. 191.
Minerals. 5 Watts, 34.
Misapply. 12 Ad. & Ell. 140; 40 E. C. L. R. 140.
Misnomer. 16 East, 110; 2 Stark. N. P. C. 29; Dunl. Pr. 238; 3 Camp. 29; 2
Caines' R. 362; 13 John. 486.
Mobilier. 3 Harr. Cond. R. 430.
Molest. Mo. 402; S. C. Cro. Eliz. 421.
Money. 15 Ves. 319; 3 Meriv. 691; 1 John. Ch. R. 231.
Money only. 7 T. R. 539, 549.
Money - Moneys. 14 John. R. 12.
Money deposited in court. 2 Gall. R. 146.
Money in the funds. 5 Price, R. 217.
Moneys. 1 John. Ch. R. 231.
More or less. 2 Pow. Mortg. 445, a, note; 2 Hen. & Munf. 164; 1 Ves. & B.
376; 2 Barn. & Adol. 106; S. C. 22 E. C. L. R. 36; 1 Yeates, 309; 6 Binn.
102; 4 Serg. & Rawle, 493; 1 Serg. Rawle, 166; 5 Serg. & Rawle, 260; 1
Munf. 336; 2 Saund. 305, b, n.; 4 Mason's R. 418; Sugd. Vend. 231-2; Ow.
133; 1 Campb. 337.
Mountain. 1 Str. 71; 1 Burr. 629.
Movables. Ward. on Leg. 210; Off. Ex. 252; Sir W. Jo. 225.
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Mr. 3 C. & P. 59; S. C. 1 M. & M. 118.
Mrs. 3 C. & P. 59; S. C. 1 M. & M. 118.
Mutual credit. 8 Taunt. 499; 4 Burr. 2222; Cooke's Bankr. Laws, 536; 4 T. R.
211; 2 Smith's Lead. Cas. 178, and the cases there cited.
My fishing place. 1 Whart. R. 1.37.
My half part. 11 East, R. 163.
My inheritance. Hob. 2; 7 East, R. 97.
My seven children, naming only six. 2 Coxe, R. 164.
My property. 17 John. R. 281.
My house, and all that shall be in it at my death. 1 Bro. C. C. 129, n.; 11
Ves. 662,
My right heirs on the part of my mother. 4 Ves. 766.
CONSUMMATION OF MARRIAGE. The first time that the husband and wife cohabit
together, after the ceremony of marriage has been performed, is thus called.
2. The marriage, when otherwise legal, is complete without this; for it
is a maxim of law, borrowed from the civil, law, that consensus, non
concubitus, facit nuptias. Co. Litt. 33; Dig. 50, 17, 30; 1 Black. Com. 434.
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CONTAGIOUS DISORDERS, police, crim. law. Diseases which are capable of being
transmitted by mediate or immediate contact.
2. Unlawfully and injuriously to expose persons infected with the
smallpox or other contagious disease in the public streets where persons are
passing, or near the habitations of others, to their great danger, is
indictable at common law. 1 Russ. Cr. 114. Lord Hale seems to doubt whether
if a person infected with the plague, should go abroad with intent to infect
another, and another should be infected and die, it would not be murder; and
he thinks it clear that though there should be no such intent, yet if
another should be infected, it would be a great misdemeanor. 1 Pl. Cor. 422.
Vide 4 M. & S. 73, 272; Dane's Ab. h.t.
CONTEMPORANEOUS EXPOSITION. The construction of a law, made shortly after
its enactment, when the reasons for its passage were then fresh in the minds
of the judges, is considered as of great weight: contemporanea expositio est
optima et fortissima in lege. 1 Cranch, 299.
CONTEMPT, crim. law. A willful disregard or disobedience of a public
authority.
2. By the Constitution of the United States, each house of congress may
determine the rules of its proceeding's, punish its members for disorderly
behaviour, and, with the concurrence of two-thirds, expel a member. The same
provision is substantially contained in the constitutions of the several
states.
3. The power to make rules carries that of enforcing them, and to
attach persons who violate them, and punish them for contempts. This power
of punishing for contempts, is confined to punishment during the session of
the legislature, and cannot extend beyond it; 6 Wheat. R. 204, 230, 231 and,
it seems this power cannot be exerted beyond imprisonment.
4. Courts of justice have an inherent power to punish all persons for
contempt of their rules and orders, for disobedience of their process, and
for disturbing them in their proceedings. Bac. Ab. Courts and their
jurisdiction in general, E; Rolle's Ab. 219; 8 Co. 38 11 Co. 43 b.; 8 Shepl.
550; 5 Ired. R. 199.
5. In some states, as in Pennsylvania, the power to punish for
contempts is restricted to offences committed by the officers of the court,
or in its presence, or in disobedience of its mandates, orders, or rules;
but no one is guilty of a contempt for any publication made or act done out
of court, which is not in violation of such lawful rules or orders, or
disobedience of its process. Similar provisions, limiting the power of the
courts of the United States to punish for contempts, are incorporated in the
Act March 2, 1831. 4 Sharsw. cont. of Stor. L. U. S. 2256. See Oswald's
Case, 4 Lloyd's Debates, 141,. et seq.
6. When a person is in prison for a contempt, it has been decided in
New York that he cannot be discharged by another judge, when brought before
him on a habeas corpus; and, according to Chancellor Kent, 3 Com. 27, it
belongs exclusively to the court offended to judge of contempts, and what
amounts to them; and no other court or judge can, or ought to undertake, in
a collateral way, to question or review an adjudication of a contempt made
by another competent jurisdiction.
This way be considered as the established doctrine equally in England
as in this country. 3 Wils. 188 14 East, R. 12 Bay, R. 182 6 Wheat. R. 204 7
Wheat. R. 38; 1 Breese, R. 266 1 J. J. Marsh. 575; Charlt. R. 136; 1 Blackf.
1669 Johns. 395 6 John. 337.
CONTENTIOUS JURISDICTION, eccl. law. In those cases where there is an action
or judicial process, and it consists in hearing and determining the matter
between party and party, it is said there is contentious jurisdiction, in
contradistinction to voluntary jurisdiction, which is exercised in matters
that require no judicial proceeding, as in taking probate of wills, granting
letters of administration, and the like. 3 Bl. Com. 66.
CONTESTATIO LITIS, civil law. The joinder of issue in a cause. Code of Pr.
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of Lo. art. 357.
CONTESTATION. The act by which two parties to an action claim the same
right, or when one claims a right to a thing which the other denies; a
controversy. Wolff, Dr. de la Nat. 762.
CONTEXT. The general series or composition of a law, contract, covenant, or
agreement.
2. When, there is any obscurity in the words of an agreement or law,
the context must be considered in its construction, for it must be performed
according to the intention of its framers. 2 Cowen, 781,; 3 Miss. 447 1
Harringt. 154; 6 John. 43; 5 Gill & John. 239; 3 B. & P. 565; 8 East, 80 1
Dall. 426; 4 Dall. 340; 3 S. & R. 609 See Construction; Interpretation.
CONTINGENT. What may or may not happen;. what depends upon a doubtful event;
as, a contingent debt, which is a debt depending upon some uncertain event.
9 Ves. It. 110; Co. Bankr. Laws, 245; 7 Ves. It. 301; 1 Ves. & Bea. 176; 8
Ves. R. 334; 1 Rose, R. 523; 3 T. R. 539; 4 T. R. 570. A contingent legacy
is one which is not vested. Will. on Executors, h.t. See Contingent
Remainder; Contingent Use.
CONTINGENT DAMAGES. Those given where the issues upon counts to which no
demurrer has been filed, are tried, before demurrer to one or more counts in
the same declaration has been decided. 1 Str. 431.
CONTINGENT ESTATE. A contingent estate depends for its effect upon an event
which may or may not happen: as an estate limited to a person not in esse or
not yet born. Crabb on Real Property, b. 3, c. 1, sect. 2. Sec. 946.
CONTINGENT REMAINDER, estates. An estate in remainder which is limited to
take effect, either to a dubious and uncertain person, or upon a dubious and
uncertain event, by, which no present or particular interest passes to the
remainder-man, so that the particular estate may chance to be determined and
the remainder never take effect. 2, Bouv. Inst. n. 1832. Vide Remainder.
CONTINGENT USE, estates. A use limited in a deed or conveyance of land which
may or may not happen to vest, according to the contingency expressed in the
limitation of such use. A contingent use is such as by possibility may
happen in possession, reversion or remainder. 1 Rep. 121 Com. Dig. Uses, K.
6.
CONTINUAL CLAIM, English law. When the feoffee of land is prevented from
taking possession by fear of menaces or bodily harm, he may make a claim to
the land in the presence of the vares[?], and if this claim is regularly made
once every year and a day, which is then called a continual claim, it
preserves to the feoffee his rights, and is equal to a legal entry. 3 Bl.
Com. 175; 2 Bl. Com. 320; 1 Chit. Pr. 278 (a) in note; Crabbe's Inst. E. L.
403.
CONTINUANCE, practice. The adjournment of a cause from one day to another is
called a continuance, an entry of which is made upon the record.
2. If these continuances are omitted, the cause is thereby
discontinued, and the defendant is discharged sine die, (q.v.) without a
day, for this term. By his appearance he has obeyed the command of the writ,
and, unless he be adjourned over to a certain day, he is no longer bound to
attend upon that summons. 3 Bl. Com. 316.
3. Continuances may, however, be entered at any time, and if not
entered, the want of them is aided or cured by the appearance of the
parties; and Is a discontinuance can never be objected to pendente placito,
so after the judgment it is cured by the statute of jeofails[?]. Tidd's Pr.
628, 835.
4. Before the declaration the continuance is by dies datus prece
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partium; after the declaration and before issue joined, by imparlance; after
issue joined and before verdict, by vicecomes non misit breve; and after
verdict or demurrer by curia advisare vult. 1 Chit. Pl. 421, n. (p); see
Vin. Abr. 454; Bac. Abr. Pleas, &c. P; Bac. Abr. Trial, H.; Com. Dig.
Pleader, V. See, as to the origin of continuances, Steph. Pl. 31; 1 Ch. Pr.
778, 779.
CONTINUANDO, plead. The Dame of an averment sometimes contained in a
declaration in trespass, that the injury or trespass has been continued. For
example, if Paul turns up the ground of Peter and tramples upon his grass,
for three days together, and Peter desires to recover damages, as well for
the subsequent acts of treading down the grass and subverting the soil, as
for the first, he must complain of such subsequent trespasses in his actions
brought to compensate the former. This he may do by averring that Paul, on
such a day, trampled upon the herbage and turned up the ground, "continuing
the said trespasses for three days following." This averment seems to impart
a continuation of the same identical act of trespass; it has, however,
received, by continued usage, another interpretation, and is taken, also, to
denote a repetition of the same kind of injury. When the trespass is not of
the same kind, it cannot be averred in a continuando; for example, when the
injury consists in killing and carrying away an animal, there remains
nothing to which a similar injury may again be offered. 1 Wms. Saund. 24, n.
1.
2. There is a difference between he continuando and the averment
diversis diebus et temporibus, on divers days and times. In the former, the
injuries complained of have been committed upon one and the same occasion;
in the latter, the acts complained of, though of the same kind, are distinct
and unconnected, See Gould, Pl. ch. 3, Sec. 86, et seq.; Ham. N. P. 90, 91
Bac. A. Trespass, I 2, n. 2.
CONTINUING CONSIDERATION. A continuing consideration is one which in point
of time remains good and binding, although it may have served before to
Support a contract. 1 Bouv. Inst. n. 628; 1 Saund. 320 e, note (5.)
CONTINUING DAMAGES. Those which are continued at different times, or which
endure from one time to another. If a person goes upon successive day's and
tramples the grass of the plaintiff, he commits continuing damages; or if
one commit a trespass to the possession, and it is in fact injurious to him
who has the reversion or remainder, this will be continuing damages. In this
last case the person in possession may have an action of trespass against
the wrong doer to his possession, and the reversioner has an action against
him for an injury to the reversion. 1 Chit. Pr. 266, 268, 385; 4 Burr. 2141,
3 Car. & P. 817.
CONTRA. Over; against; opposite to anything: as, such a case lays down a
certain principle; such other case, contra.
CONTRA BONOS MORES. Against good morals.
2. All contracts contra bonos mores, are illegal. These are reducible
to Several classes, namely, those which are, 1. Incentive to crime. A claim
cannot be sustained, therefore, on. a bond for compounding a crime; as, for
example, a prosecution for perjury; 2 Wils. R. 341, 447; or for procuring a
pardon. A distinction has been made between a contract made as a reparation
for an injury to the honor of a female, and one which is to be the reward of
future illicit cohabitation; the former is good and valid, and the latter is
illegal. 3 Burr. 1568; 1 Bligh's R. 269.
3.-2. Indecent or mischievous consideration. An obligation or
engagement prejudicial to the feelings of a third party; or offensive to
decency or morality; or which has a tendency to mischievous or pernicious
consequences, is void. Cowp. 729; 4 Campb. R. 152; Rawle's R. 42; 1 B. & A.
683; 4 Esp. Cas. 97; 16 East R. 150; Vide Wagers.
4.-3. Gaming. The statutes against gaming render all contracts made
for the purpose of gaming, void. Vide Gaming; Unlawful; Void.
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CONTRA FORMAM STATUTI. Contrary to the form of the statute.
2.-1. When one statute prohibits a thing and another gives the
penalty, in an action for the penalty, the declaration should conclude
contra fornam statutorum. Plowd. 206; 2 East, R. 333; Esp. on Pen. Act. 111;
1 Gallis. R. 268. The same rule applies to informations and indictments. 2
Hale, P. C. 172; 2 Hawk. c. 25, Sec. 117 Owen, 135.
3.-2. But where a statute refers to a former one, and adopts and,
continues the provisions of it, the declaration or indictment should
conclude contraformam statuti. Hale, P. C, 172; 1 Lutw. 212.
4.-3. Where a thing is prohibited by several statutes, if one only
gives the action, and the others are explanatory and restrictive, the
conclusion should be contra formam statuti. Yelv. 116; Cro. Jac. 187 Noy,
125, S. C.; Rep. temp. Hard. 409 Andr. 115, S. C.; 2 Saund. 377.
5.-4. When the act prohibited was not an offence or ground of action
at common law, it is necessary both in criminal and civil cases to conclude
against the form of the statute or statutes. 1 Saund, 135, c.; 2 East, 333;
1 Chit. Pl. 358; 1 Saund. 249; 7 East, 516; 2 Mass. 116; 7 Mass. 9; 11 Mass.
280; 10 Mass. 36; 1 M'Cord, 121; 1 Gallis. 30.
6.-5. But if the act prohibited by the statute is an offence or
ground of action at common law, the indictment or action may be in the
common law form, and the statute need not be noticed, even though it
prescribe a form of prosecution or of action - the statute remedy being
merely
cumulative. 2 Inst. 200; 2 Burr. 803; 4 Burr. 2351; 3 Burr. 1418; 2 Wils.
146; 3 Mass. 515.
7.-6. When a statute only inflicts a punishment on that which was an
offence at common law, the offence prescribed may be inflicted, though the
statute is not noticed in the indictment. 2 Binn. 332.
8.-7. If an indictment for an offence at common law only, conclude
"against the form of the statute in such case made and provided;" or "the
form of the statute" generally, the conclusion will be rejected as
surplusage, and the indictment maintained as at common. law. 1 Saund. 135,
3.
9.-8. But it will be otherwise if it conclude against the form of
"the statute aforesaid," when a statute has been previously recited. 1 Chit.
Cr. Law, 266, 289. See further, Com. Dig. Pleader C 76; 5 Vin. Abr. 552, 556
1 Gallis. 26, 257; 9 Pick. 162 5 Pick. 128 2 Yerg. 390; 1 Hawks. 192; 3
Conn. 1 11 Mass. 280; 5 Greenl. 79.
CONTRA PACEM, pleadings. Against the peace.
2. In actions of trespass, the words contra pacem should uniformly
accompany the allegation of the injury; in some cases they are material to
the foundation of the action. Trespass to lands in a foreign country cannot
be sustained. 4 T. R. 503 2 Bl. Rep.. 1O58.
3. The conclusion of the declaration, in trespass or ejectment, should
be contra pacem, though these are now mere words of form, and not
traversable, and the omission of that allegation will be aided, if not
specially demurred to. 1 Chit. Pl. 375, 6 vide Arch. Civ. Pl. 169; 5 Vin.
Ab. 557 Com. Dig. Action upon the case, C 4 Pleader, 3, M 8; Prohibition, F
7.
CONTRABAND, mar. law. Its most extensive sense, means all commerce which is
carried on contrary to the laws of the state. This term is also used to
designate all kinds of merchandise which are used, or transported, against
the interdictions published by a ban or solemn cry.
2. The term is usually applied to that unlawful commerce which is so
carried on in time of war. Merlin, Repert. h.t. Commodities particularly
useful in war are contraband as arms, ammunition, horses, timber for ship
building, and every kind of naval stores. When articles come into use as
implements of war, which were before innocent, they may be declared to be
contraband. The greatest difficulty to decide what is contraband seems to
have occurred in the instance of provisions, which have not been held to be
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universally contraband, though Vattel admits that they become so on certain
occasions, when there is an expectation of reducing an enemy by famine.
3. In modern times one of the principal criteria adopted by the courts
for the decision of the question, whether any particular cargo of provisions
be confiscable as contraband, is to examine whether those provisions be in a
rude or manufactured state; for all articles, in such examinations, are
treated with greater indulgence in their natural condition than when wrought
tip for the convenience of the enemy's immediate use. Iron, unwrought, is
therefore treated with indulgence, though anchors, and other instruments
fabricated out of it, are directly contraband. 1 Rob. Rep. 1 89. See Vattel,
b. 3, c. 7 Chitty's L. of Nat. 120; Marsh. Ins. 78; 2 Bro. Civ., Law, 311; 1
Kent. Com. 135; 3 Id. 215.
4. Contraband of war, is the act by which, in times of war, a neutral
vessel introduces, or attempts to introduce into the territory of, one of
the belligerent parties, arms, ammunition, or other effects intended for, or
which may serve, hostile operations. Merlin, Repert. h.t. 1 Kent, Com. 135;
Mann. Comm. B. 3, c. 7; 6 Mass. 102; 1 Wheat. 382; 1 Cowen, 56 John. Cas.
77, 120.
CONTRACT. This term, in its more extensive sense, includes every description
of agreement, or obligation, whereby one party becomes bound to another to
pay a sum of money, or to do or omit to do a certain act; or, a contract is
an act which contains a perfect obligation. In its more confined sense, it
is an agreement between two or more persons, concerning something to be,
done, whereby both parties are hound to each other, *or one is bound to the
other. 1 Pow. Contr. 6; Civ. Code of Lo. art. 1754; Code Civ. 1101; Poth.
Oblig. pt. i. c. 1, S. 1, Sec. 1; Blackstone, (2 Comm. 442,) defines it to
be an agreement, upon a sufficient consideration, to do or not to do a
particular thing. A contract has also been defined to be a compact between
two or more persons. 6 Cranch, R. 136.
2. Contracts are divided into express or implied. An express contract
is one where the terms of the agreement are openly uttered and avowed at the
time of making, as to pay a stated price for certain goods. 2 Bl. Com. 443.
3. Express contracts are of three sorts 1. BI parol, or in writing, as
contradistinguished from specialties. 2. By specialty or under seal. 3. Of
record.
4.-1. A parol contract is defined to be a bargain or voluntary
agreement made, either orally or in writing not under, seal, upon a good
consideration, between two or more persons capable of contracting, to, do a
lawful act, or to omit to do something, the performance whereof is not
enjoined by law. 1 Com. Contr. 2 Chit. Contr. 2.
5. From this definition it appears, that to constitute a sufficient
parol agreement, there must be, 1st. The reciprocal or mutual assent of two
or more persons competent to contract. Every agreement ought to be so
certain and complete, that each party may have an action upon it; and the
agreement would be incomplete if either party withheld his assent to any of
its terms. Peake's R. 227; 3 T. R. 653; 1 B. & A. 681 1 Pick. R. 278. The
agreement must, in general, be obligatory on both parties, or it binds
neither. To this rule there are, however, some exceptions, as in the case of
an infant's contract. He may always sue, though he cannot be sued, on his
contract. Stra. 937. See other instances; 6 East, 307; 3 Taunt. 169; 5
Taunt. 788; 3 B. & C. 232.
6.-2d. There must be a good and valid consideration, motive or
inducement to make the promise, upon which a party is charged, for this is
of the very essence of a contract under seal, and must exist, although the
contract be reduced to writing. 7 T. R. 350, note (a); 2 Bl. Coin. 444. See
this Dict. Consideration; Fonb. Tr. Eq. 335, n. (a) Chit. Bills. 68.
7.-3d. There must be a thing to be done, which is not forbidden; or a
thing to be omitted, the performance of which is not enjoined by law. A
fraudulent or immoral contract, or one contrary to public policy is void
Chit. Contr. 215, 217, 222: and it is also void if contrary to a statute.
Id. 228 to 250; 1 Binn. 118; 4 Dall. 298 4 Yeates, 24, 84; 6 Binn. 321; 4
Serg & Rawle, 159; 4 Dall. 269; 1 Binn. 110 2 Browne's R. 48. As to
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contracts which are void for want of a compliance with the statutes of
frauds, see Frauds, Statute of.
8.-2. The second kind of express contracts are specialties, or those
which are made under seal, as deeds, bonds, and the like; they are not
merely written, but delivered over by the party bound. The solemnity and
deliberation with which, on account of the ceremonies to be observed, a deed
or bond is presumed to be entered into, attach to it an importance and
character which do not belong to a simple contract. In the case of a
specially, no consideration is necessary to give it validity, even in a
court of equity. Plowd. 308; 7 T. R. 477; 4 B. & A. 652; 3 T. R. 438; 3
Bingh. 111, 112; 1 Fonb. Eq, 342, note When, a contract by specialty has
been changed by a parol agreement, the whole of it becomes a parol contract.
2 Watts, 451; 9 Pick. 298; see 13 Wend. 71.
9.-3. The highest kind of express contracts are those of record, such
as judgments, recognizances of bail, and in England, statutes merchant and
staple, and other securities of the same nature, cutered into with the
intervention of some public authority. 2 Bl. Com. 465. See Authentic Facts.
10. Implied contracts are such as reason and justice dictates, and
which, therefore, the law presumes every man undertakes to perform; as if a
man employs another to do any business for him, or perform any work, the law
implies that the former contracted or undertook to pay the latter as much as
his labor is worth; see Quantum merwit; or if one takes up goods from a
tradesman, without any agreement of price, the law concludes that he
contracts to pay their value. 2 Bl. Com. 443. See Quantum valebant;
Assumpsit. Com. Dig. Action upon the case upon assumpsit, A 1; Id.
Agreement.
11. By the laws of Louisiana, when considered as to the obligation of
the parties, contracts are either unilateral or reciprocal. When the party
to whom the engagement is made, makes no express agreement on his part, the
contract is called unilateral, even in cases where the law attaches certain
obligations to his acceptance. Civ. Code of Lo. art. 1758. A loan for use,
and a loan of money, are of this kind. Poth. Ob. P. 1, c. 1, s. 1, art. 2. A
reciprocal contract is where the parties expressly enter into mutual
engagements such as sale, hire, and the like. Id.
12. Contracts, considered in relation to their substance, are either
commutative or independent, principal or accessory.
13. Commutative contracts, are those in which what is done, given or
promised by one party, is considered as equivalent to, or in consideration
of what is done, given or promised by the other. Civ. Code of Lo. art. 1761.
14. Independent contracts are those in which the mutual acts or
promises have no relation to each other, either as equivalents or as
considerations. Id. art. 1762.
15. A principal contract is one entered into by both parties, on their
accounts, or in the several qualities they assume.
16. An accessory contract is made for assuring the performance of a
prior contract, either by the same parties or by others, such as suretyship,
mortgage, and pledges. Id. art. 1764. Poth. Obl. p. 1, c. 1, s. 1, art. 2,
n. 14.
17. Contracts, considered in relation to the motive for. making them, are
either gratuitous or onerous. To be gratuitous, the object of a contract
must be to benefit the person with whom it is made, without any profit or
advantage, received or promised, as a consideration for it. It is not,
however, the less gratuitous, if it proceed either from gratitude for a
benefit before received, or from the hope of receiving one hereafter,
although such benefits be of a pecuniary nature. Id. art. 1766. Any thing
given or promised, as a consideration for the engagement or gift; any
service, interest, or condition, imposed on what is given or promised,
although unequal to it in value, makes a contract onerous in its nature. Id.
art. 1767.
18. Considered in relation to their effects, contracts are either
certain or hazardous. A contract is certain, when the thing to be done is
supposed to depend on the will of the party, or when, in the usual course of
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events, it must happen in the manner stipulated. It is hazardous, when the
performance.of that which is one of its objects, depends on an uncertain
event. Id. art. 1769.
19. Pothier, in his excellent treatise on Obligations, p. 1, c. 1, s. 1,
art. 2, divides contracts under the five following heads:
20.-1. Into reciprocal and unilateral.
21.-2. Into consensual, or those which are formed by the mere consent
of the parties, such as sale, hiring and mandate; and those in which it is
necessary there should be something more than mere consent, such as loan of
money, deposit or pledge, which from their nature require a delivery of the
thing, (rei); whence they are called real contracts. See Real Contracts.
22.-3. Into first, contracts of mutual interest, which are such as are
entered into for the reciprocal interest and utility of each of the parties,
as sales exchange, partnership, and the like.
23.-2d. Contracts of beneficence, which are those by which only one of
the contracting parties is benefited, as loans, deposit and mandate. 3d.
Mixed contracts, which are those by which one of the parties confers a
benefit on the other, receiving something of inferior value in return, such
as a donation subject to a charge,
24.-4. Into principal and accessory.
25.-5. Into those which are subjected by the civil law to certain
rules and forms, and those which ate regulated by mere natural justice. See,
generally, as to contracts, Bouv. Inst. Index, h.t.; Chitty on Contracts;
Comyn on Contracts; Newland on Contracts; Com. Dig. titles Abatement, E 12,
F 8; Admiralty, E 10, 11; Action upon the Case upon Assumpsit; Agreement;
Bargain and Sale; Baron and Feme, Q; Condition; Dett, A 8, 9; Enfant, B 5;
Idiot, D 1 Merchant, E 1; Pleader, 2 W, 11, 43; Trade D 3; War, B 2; Bac.
Abr. tit. Agreement; Id. Assumpsit; Condition; Obligation; Vin. Abr.
Condition; Contracts and Agreements; Covenants; Vendor, Vendee; Supp. to
Ves. jr. vol. 2, p. 260, 295, 376, 441; Yelv. 47; 4 Ves. jr., 497, 671;
Archb. Civ. Pl. 22; Code Civ. L. 3, tit. 3 to 18; Pothier's Tr. of
Obligations Sugden on Vendors and Purchasers; Story's excellent treatise on
Bailments; Jones on Bailments; Toullier, Droit Civil Francais, tomes 6 et 7;
Ham. Parties to Actions, Ch. 1; Chit. Pr. Index, h.t.; and the articles
Agreement; Apportionment; Appropriation; Assent; Assignment; Assumpsit;
Attestation; Bailment; Bargain and sale; Bidder; Bilateral contract; Bill of
Exchange; Buyer; Commodate; Condition; Consensual contract; Conjunctive;
Consummation; Construction; Contracto of benevolence; Covenant; Cumulative
contracts; Debt; Deed; Delegation. Delivery; Discharge Of a contract;
Disjunctive; Equity of a redemption; Exchange; Guaranty; Impairing the
obligation of contracts; Insurance; Interested contracts; Item;
Misrepresentation; Mortgage; Mixed contract; Negociorum gestor; Novation;
Obligation; Pactum constitutae, pecuniae; Partners; Partnership; Pledge;
Promise; Purchaser; Quasi contract; Representation; Sale; Seller;
Settlement; Simple contract; Synallagmatic contract; Subrogation; Title;
Unilateral contract.
CONTRACT or BENEVOLENCE, Civil law. One which is made for the benefit of
only one of the contracting parties; such as loan for use, deposit, and
mandate. Poth. Obl. n. 12. See Contracts.
CONTRACTION. An abbreviation; a mode of writing or printing by which some of
the letters of a word are omitted. See Abbreviations.
CONTRACTOR. One who enters into a contract this term is usually applied to
persons who undertake to do public work, or the work for a company or
corporation on a large scale, at a certain fixed price, or to furnish goods
to another at a fixed or ascertained price. 2 Pardess. n. 300. Vide 5 Whart.
366.
CONTRADICTION. The incompatibility, contrariety, and evident opposition of
two ideas, which are the subject of one and the same proposition.
2. In general, when a party accused of a crime contradicts himself, it
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is presumed he does so because he is guilty for truth does not contradict
itself, and is always consistent, whereas falsehood is in general
inconsistent and the truth of some known facts will contradict the falsehood
of those which are falsely alleged to be true. But there must still be much
caution used by the judge, as there may be sometimes apparent contradictions
which arise either from the timidity, the ignorance, or the inability of the
party to explain himself, when in fact he tells the truth.
3. When a witness contradicts himself as to something which is important
in the case, his testimony will be much weakened, or it may be entirely
discredited and when he relates a story of facts which he alleges passed
only in his presence, and he is contradicted as to other facts which are
known to others, his credit will be much impaired.
4. When two witnesses, or other persons, state things directly opposed
to each other, it is the duty of the judge or jury to reconcile these
apparent contradictions; but when this cannot be done, the more improbable
statement must be rejected; or, if both are entitled to the same credit,
then the matter is as if no proof had been given. See Circumstances.
CONTRIBUTION, contracts. When two or more persons jointly owe a debt, and
one is compelled to pay the whole of it, the others are bound to indemnify
him for the payment of their shares; this indemnity is called a
contribution. 1 Bibb. R. 562; 4 John. Ch. R. 545; 4 Bouv. Inst. n. 3935-6.
2. The subject will be considered by taking a view, 1. Of right of the
creditors where there are several debtors. 2. Of the right of the debtor who
pays the whole debt. 3. Of the liabilities of the debtors who are liable to
contribution. 4. Of the liability of land owned by several owners, when it
is subject to a charge. 5. Of the liability of owners of goods in a vessel,
when part is thrown overboard to save the rest.
3.-1. The creditor of several debtors, jointly bound to him, has a
right to compel the payment by any he may choose; but he cannot sue them
severally, unless they are severally bound.
4.-2. When one of several debtors pays a debt, the creditor is bound
in conscience, if not by contract, to give to the party paying the debt all
his remedies against the other debtors. 1 Cox, R. 318 S. C. 2 B. & P. 270 2
Swanst. R. 189, 192; 3 Bligh, 59 14 Ves. 160; 1 Ves. 31 12 Wheat. 596 1
Hill, Ch. R. 844, 351 1 Term. St. It. 512, 517; 1 Ala. R. 23, 28; 11 Ohio
It. 444, 449 8 Misso. It. 169, 175.
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5.- 3. A debtor liable to contribution is not responsible upon a
contract, but is so in equity. But courts of common law, in modern times,
have assumed a jurisdiction to compel contribution among sureties, in the
absence of any positive contract, on the ground of an implied assumpsit, and
each of the sureties may be sued for his respective quota or proportion.
White's L. C. in Eq. 66. The remedy in equity is, however, much more
effective. For example, a surety who pays an entire debt, can, in equity,
compel the solvent sureties to contribute towards the payment of the entire
debt. 1 Chan. R. 34 1 Chan. Cas. 246; Finch, R. 15, 203. But at law he can
recover no more than an aliquot part of the whole, regard being had to the
number of co-sureties. 2 B. & P. 268; 6 B. & C. 697.
6.-4. When land is charged with the payment of a legacy, or an estate
with the portion of a posthumous child, every part is bound to make
contribution. 3 Munf. R. 29; 1 John. Ch. R. 425 2 Bouv. Inst. n. 1301.
7.-5. Contribution takes place in another case; namely, when in order
to save a ship or cargo, a part of the goods are cast overboard, the ship
and cargo are liable to contribution in order to indemnify the owner of the
goods lost, except his just proportion. No contribution can be claimed
between joint wrong doers. Bac. Ab. Assumpsit A; Vide 3 Com. Dig. 143; 8
Com. Dig. 373; 5 Vin. Ab. 561; 2 Supp. to Ves. jr. 159, 343; 3 Ves. jr. 64;
Wesk. Ins. 130; 10 S. & R. 75; 5 B. & Ad. 936; S. C. 3 N. & M. 258; Rast.
Entr. 161; 2 Ventr. 348; 2 Vern. 592; 2 B. & P. 268; 3 B. & P 235; 5 East,
225; 1 J. P. Smith 411 5 Esp. 194; 3 Campb. 480; Gow, N. P. C. 13; 2 A. & E.
57; 4 N. & M. 64; 6 N. & M. 494.
CONTRIBUTIONS, public law. Taxes or money contributed to the support of the
government.
2. Contributions are of three kinds, namely: first, those which arise
from persons on account of their property, real or personal, or which are
imposed upon their industry; those which are laid on and paid by real
estate without regard to its owner; and those to which personal property
is subject, in its transmission from hand to hand, without regard to the
owner. See Domat, Dr. Publ. 1. 1, t. 5, s. 2, n. 2.
3. this is a generic term which includes all kinds of impositions for
the public benefit. See Duties; Imports; Taxes.
4. By contributions is also meant forced levy of money or property by a
belligerent in a hostile country which he occupies, by which means the
country is made to contribute to the support of the army of occupation.
These contributions are usually taken instead of pillage. Vatt. Dr. des
Gens, liv. 3, 9, Sec. 165; Id. liv. 4, c. 3, Sec. 29.
CONTROLLERS. Officers who are appointed, to examine the accounts of other
officers. More usually written comptrollers. (q.v.)
CONTROVER, obsolete. One who invents false news. 2 Inst. 227.
CONTROVERSY. A dispute arising between two or more persons. It differs from
case, which includes all suits criminal as well as civil; whereas
controversy is a civil and not a criminal proceeding. 2 Dall. R. 419, 431,
432; 1 Tuck. Bl. Com. App. 420, 421; Story, Const. Sec. 1668.
2. By the constitution of the United States the judicial power shall
extend to controversies to which the United States shall be a party. Art. 2,
1. The meaning to be attached to the word controversy in the constitution,
is that above given.
CONTUBERNIUM, civ. law. As among the Romans, slaves had no civil state,
their marriages, although valid according to natural law, when contr acted
with the consent of their masters, and when there was no legal bar to them,
yet were without civil effects; they having none except what arose from
natural law; a marriage of this kind was called contubernium. It was so
called whether both or only one of the parties was a slave. Poth. Contr. de
Mariage, part 1, c. 2, Sec. 4. Vicat, ad verb.
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CONTUMACY, civil law. The refusal or neglect of a party accused to appear
and answer to a charge preferred against him in a court of justice. This
word is derived from the Latin contumacia, disobedience. 1 Bro. Civ. Law,
455; Ayl. Parer. 196; Dig. 50, 17, 52; Code Nap. art. 22.
2. Contumacy is of two kinds, actual and presumed: actual contumacy is
when the party before the court refuses to obey some order of the court;
presumed contumacy is the act of refusing or declining to appear upon being
cited. 3 Curt. Ecc. R. 1.
CONTUMAX, civ. law. One accused of a crime who refuses to appear and answer
to the charge. An outlaw.
CONTUSION, med. jurisp. An injury or lesion, arising from the shock of a
body with a large surface, which presents no loss of substance, and no
apparent wound. If the skin be divided, the injury takes the name of a
contused wound. Vide 1 Ch. Pr, 38; 4 Carr. & P. 381, 487, 558, 565; 6 Carr.
& P. 684; 2 Beck's Med. Jur. 178.
CONUSANCE, CLAIM OF, English law. This is defined to be an intervention by a
third person, demanding judicature in the cause against the plaintiff, who
has chosen to commence his action out of claimant's court. 2 Wilson's R.
409.
2. It is a question of jurisdiction between the two courts Fortesc. R.
157; 5 Vin. Abr. 588; and not between the plaintiff and defendant, as in the
case of plea to the jurisdiction, and therefore it must be demanded by the
party entitled to conusance, or by his representative, and not by the
defendant or his attorney. Id. ibid. A plea to the jurisdiction must be
pleaded in person, but a claim of conusance may be made by attorney. 1 Chit.
Pl. 403.
3. There are three sorts of conusance. 1. Tentere placita, which does
not oust another court of its jurisdiction, but only creates a concurrent
one. 2. Cognitio placitorum, when the plea is commenced in one court, of
which conusance belongs to another. 3. A conusance of exclusive
jurisdiction; as that no other court shall hold pica, &c. Hard. 509 Bac. Ab.
Courts, D.
CONUSANT. One who knows as if a party knowing of an agreement in which he
has an interest, makes no objection to it, he is said to be conusant. Co.
Litt. 157.
CONUSOR. The same as cognizor; one who passes or acknowledges a fine of
lands or tenements to another. See Consignor.
CONVENE, civil law. This is a technical term, signifying to bring an action.
CONVENTIO, canon law. The act of convening or calling together the parties,
by summoning the defendant. Vide Reconvention. When the defendant was
brought to answer, he was said to be convened, which the canonists called
conventio, because the plaintiff and defendant met to contest. Sto. Eq. Pl.
Sec. 402; 4 Bouv. Inst. n. 4117.
CONVENTION, contracts, civil law. A general term which comprehends all kinds
of contracts, treaties, pacts, or agreements. It is defined to be the
consent of two or more persons to form with each other an engagement, or to
dissolve or change one which they had previously formed. Domat, Lois Civ. 1.
1, t. 1, s. 1 Dig. lib. 2, t. 14, 1. 1 Lib. 1, t. 1, 1. 1, 4 and 5; 1 Bouv.
Inst. n. 100.
CONVENTION, legislation. This term is applied to a selecting of the
delegates elected by the people for other purposes than usual legislation.
It is mostly used to denote all assembly to make or amend the constitution
of, a state, but it sometimes indicates an assembly of the delegates of the
people to nominate officers to be supported at an election.
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CONVERSANT. One who is in the habit of being in a particular place, is said
to be conversant there. Barnes, 162.
CONVERSION. torts. the unlawful turning or applying the personal goods of
another to the use of the taker, or of some other person than the, owner; or
the unlawful destroying or altering their nature. Bull. N. P. 44; 6 Mass.
20; 14 Pick. 356; 3 Brod. & Bing. 2; Cro. Eliz. 219 12 Mod. 519; 5 Mass.
104; 6 Shepl. 382; Story, Bailm. Sec. 188, 269, 306; 6 Mass. 422; 2 B. & P.
488; 3 B. & Ald. 702; 11 M. & W. 363; 8 Taunt. 237; 4 Taunt. 24.
2. When a party takes away or wrongfully assumes the right to goods
which belong to another, it will in general be sufficient evidence of a
conversion but when the original taking was, lawful, as when the party found
the goods, and the detention only is illegal, it is absolutely necessary to
male a demand of the goods, and there must be a refusal to deliver them
before the conversion will, be complete. 1 Ch. Pr. 566; 2 Saund. 47 e, note
1 Ch. Pl. 179; Bac. Ab. Trover, B 1 Com. Dig. 439; 3 Com. Dig. 142; 1 Vin.
Ab. 236; Yelv. 174, n.; 2 East, R. 405; 6 East, R. 540; 4 Taunt. 799 5 Barn.
& Cr. 146; S. C. 11 Eng. C. L. Rep. 185; 3 Bl. Com. 152; 3 Bouv. Inst. n.
3522, et seq. The refusal by a servant to deliver the goods entrusted to him
by his master, is not evidence of a conversion by his master. 5 Hill, 455.
3. The tortious taking of property is, of itself, a conversion 15 John.
R. 431 and any intermeddling with it, or any exercise of dominion over it,
subversive of the dominion of the owner, or the nature of the bailment, if
it be bailed, is, evidence of a conversion. 1 Nott & McCord, R. 592; 2 Mass.
R. 398; 1 Har. & John. 519; 7 John. R. 254; 10 John. R. 172 14 John. R. 128;
Cro. Eliz. 219; 2 John. Cas. 411. Vide Trover.
CONVERSION, in equity, The considering of one thing as changed into another;
for example, land will be considered as converted into money, and treated as
such by a court of equity, when the owner has contracted to sell his estate
in which case, if he die before the conveyance, his executors and not his
heirs will be entitled to the money. 2 Vern. 52; S., C. 3 Chan. R. 217; 1
B1. Rep. 129. On the other hand, money is converted into land in a variety
of ways as for example, when a man agrees to buy land, and dies before he
has received the conveyance, the money he was to pay for it will be
considered as converted into lands, and descend to the heir. 1 P. Wms. 176 2
Vern. 227 10 Pet. 563; Bouv. Inst. Index, h.t.
CONVEYANCE, contracts. The transfer of the title to land by one or more
persons to another or others. By the term persons is here understood not
only natural persons but corporations. The instrument which conveys the
property is also called a conveyance. For the several kinds of conveyances
see Deed. Vide, generally, Roberts on Fraud. Conv. passim; 16 Vin. Ab. 138;
Com. Dig. Chancery, 2 T 1; 3 M 2; 4 S 2; Id. Discontinuance, C 3, 4, 5; Id.
Guaranty, D; Id. Pleader, C 37; Id. Poiar, C 5; Bouv. Inst. Index, h.t. The
whole of a conveyance, when it consists of different parts or instruments,
must be taken together, and the several parts of it relate back to the
principal part; 4 Burr. Rep. 1962; as a fine; 2 Burr. R. 704; or a recovery;
2 Burr. Rep. 135. 2. When there is no express agreement to the contrary, the
expense of the conveyance falls upon the purchaser; 2 Ves. Jr. 155, note;
who must prepare and tender the conveyance but see contra, 2 Rand. 20. The
expense of the execution of the conveyance is, on the contrary, always borne
by the vendor. Sugd. Vend. 296; contra, 2 Rand. 20; 2 McLean, 495. Vide 5
Mass. R. 472; 3 Mass. 487; Eunom. Dial. 2, 12; Voluntary Conveyance.
CONVEYANCE OF VESSELS. The act of congress, approved the 29th July, 1850,
entitled an act to provide for recording the conveyances of vessels and for
other purposes, enacts that no bill of sale, mortgage, hypothecation or
conveyance of any vessel, or part of any vessel of the United States, shall
be valid against any person, other than the grantor or mortgagor, his heirs
and devisees, and persons having actual notice thereof, unless such, bill of
sale, mortgage, hypothecation or conveyance be recorded in the office of the
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collector of the customs, where such vessel is registered or enrolled.
Provided, that the lien by bottomry on any vessel, created during her
voyage, by a loan of money or materials necessary to repair or enable such
vessel to prosecute a voyage, shall not lose its priority or be in any way
affected by the provisions of the act. See. 2 enacts, that the collectors of
the customs shall record all such bills of sale, mortgages, hypothecations
or conveyances, and also all certificates for discharging and cancelling any
such conveyances, in a book or books to be kept for that purpose, in the
order of their reception; noting in said book or books, and also on the bill
of sale, mortgage, hypothecation or conveyance, the time when the same was
received; and shall certify on the bill of sale, mortgage, hypothecation or
conveyance, or certificate of discharge or cancellation, the number of the
book and page where recorded and shall receive, for so recording such
instrument of conveyance or certificate of discharge, fifty cents. Sec. 3
enacts, that the collectors of the customs shall keep an index of such
records, inserting alphabetically the names of the vendor or mortgagor, and
of the vendee or mortgagee, and shall permit said index and books of
'records to be inspected during office hours, under such reasonable
regulations as they may establish and shall, when required, furnish to any
person a certificate setting forth the names of the owners of any vessel
registered or enrolled, the parts or proportions owned by each, if inserted
in the register or enrollment, and also the material facts of any existing
bill of sale, mortgage, hypothecation, or other incumbrance upon such
vessel, recorded since the issuing of the last register or enrollment; viz.
the date, amount of such incumbrance, and from and to whom or in whose favor
made. The collector shall receive for each such certificate one dollar. Sec.
4. By this section it is enacted, that the collectors of the customs shall
furnish certified copies of such records, on the receipt of fifty cents for
each bill of sale, mortgage, or other conveyance. Sect. 5. This section
provides that the owner or agent of the owner of any vessel of the United
States, applying to a collector of the customs for a register or enrollment
of a vessel, shall, in addition to the oath now prescribed by law, set
forth, in the oath of ownership, the part or proportion of such vessel
belonging to each owner, and the same shall be inserted in the register of
enrollment; and that all bills of sale of vessels registered or enrolled
shall set forth the part of the vessel owned by each person selling, and the
part conveyed to each person purchasing.
CO-OBLIGOR, contracts. One who is bound together with one or more others to
fulfill an obligation. As to what will constitute a joint obligation, see 5
Bin. 199; Windham's Case, 5 Co. 7; 2 Ev. Poth. 63; Ham. Parties, 29, 20, 24;
1 Saund. 155; Saunders, Arguendo and note 2; 5 Co. 18 b, 19 a, Slingsly's
Case. He may be jointly, or severally bound.
2. When obligors are jointly and not severally bound to pay a joint
debt, they must be sued jointly during their joint lives, and after the
death of some of them, the survivors alone can be sued; each is bound to pay
the whole debt, having recourse to the others for contribution. See 1 Saund.
291, n. 4; Hardress, 198; 2 Ev. Poth. 63, 64, 66. Yet an infant co-obligor
need not be joined, for his infancy may be replied to a plea of non-joinder
in abatement. 3 Esp. 76; 5 Esp. 47; also, see 5 Bac. Abr. 163-4; 2 Vern. 99;
2 Moss. Rep. 577; 1 Saund. 291 b, n. 2; 6 Serg. & R. 265, 266; 1 Caines'
Cases in Err. 122.
3. When co-obligors are severally bound, each may be sued separately;
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and in case of the death of any one of them, his executors or administrators
may be sued.
4. On payment of the obligation by any one of them, when it was for a
joint debt, the payer is entitled to contribution from the other co-
obligors.
COOL BLOOD. A phrase sometimes used to signify tranquillity, or calmness;
that is, the condition of one who has the calm and undisturbed use of his
reason. In cases of homicide, it frequently becomes necessary to. ascertain
whether the act of the person killing was done in cool blood or not, in
order to ascertain the degree of his guilt. Bac. Ab. Murder, B; Kiel 56 Sid.
177 Lev. 180. Vide Intention; Murder; Manslaughter; Will.
CORPOREAL PROPERTY, civil law. That which consists of such subjects as are
palpable. In the common law, the term to signify the same thing is properly
in possession. It differs from incorporeal property, (q.v.) which consists
of choses in action and easements, as a right of way, and the like.
CORPSE. The dead body (q.v.) of a human being. Russ. & Ry. 366, n.; 2 T. R.
733; 1 Leach, 497; 16 Eng. Com. L. Rep. 413; 8 Pick. 370; Dig. 47, 12, 3, 7
Id. 11, 7, 38; Code, 3, 441.
2. As a corpse is considered as nullius bonis, or the property of no
one, it follows that stealing it, is not, at common law, a larceny. 3 Inst.
203.
CORPUS. A Latin word, which signifies body; as, corpus delicti, the body of
the offence, the essence of the crime; corpus juris canonis, the body of the
canon law; corpus juris civilis, the body of the Civil law.
CORPUS COMITATUS. The body of the county; the inhabitants or citizens of a
whole county, used in contradistinction to a part of a county, or a part of
its citizens. See 5 Mason, R. 290.
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CORPUS JURIS CIVILIS. The body of the civil law. This, is the name given to
a collection of the civil law, consisting of Justinian's Institutes, the
Pandects or Digest, the Code, and the Novels.
CORPUS CUM CAUSA, practice. The writ of habeas corpus cum causa is a
writ commanding the person to whom it is directed, to have the body,
together with the cause for which he is committed, before the court or judge
issuing the same.
CORPUS DELICTI. The body of the offence; the essence of the crime
2. It is a general rule not to convict unless the corpus delicti can be
established, that is, until the dead body has been found. Best on Pres. Sec.
201; 1 Stark. Ev. 575, See 6 C. & P. 176; 2 Hale, P. C. 290. Instances have
occurred of a person being convicted of having killed another, who, after
the supposed criminal has been put to death for the supposed offence, has
made his appearance alive. The wisdom of the rule is apparent; but it has
been questioned whether, in extreme cases, it may not be competent to prove
the basis of the corpus delicti by presumptive evidence. 3 Benth. Jud. Ev.
234; Wills on Circum. Ev. 105; Best on Pres. Sec. 204. See Death.
CORPUS JURIS CANONICI. The body of the canon law. A compilation of the canon
law bears this name. See Law, canon.
CORRECTION,punishment. Chastisement by one having authority of a person who
has committed some offence, for the purpose of bringing him to legal
subjection.
2. It is chiefly exercised in a parental manner, by parents, or those
who are placed in loco parentis. A parent may therefore justify the
correction of the child either corporally or by confinement; and a
schoolmaster, under whose care and instruction a parent has placed his
child, may equally justify similar correction; but the correction in both,
cases must be moderate, and in proper manner. Com. Dig. Pleader, 3 M. 19;
Hawk. c. 60, s. 23, and c. 62, s. 2 c. 29, s. 5.
3. The master of an apprentice, for disobedience, may correct him
moderately 1 Barn. & Cres. 469 Cro. Car. 179 2 Show. 289; 10 Mart. Lo. It.
38; but he cannot delegate the authority to another. 9 Co. 96.
4. A master has no right to correct his servants who are not
apprentices.
5. Soldiers are liable to moderate correction from their superiors. For
the sake of maintaining their discipline on board of the navy, the captain
of a vessel, either belonging to the United States, or to private
individuals, may inflict moderate correction on a sailor for disobedience or
disorderly conduct. Abbott on Shipp. 160; 1 Ch. Pr. 73; 14 John. R. 119; 15
)lass. 365; 1 Bay, 3; Bee, 161; 1 Pet. Adm. Dec. 168; Molloy, 209; 1 Ware's
R. 83. Such has been the general rule. But by a proviso to an act of
congress, approved the 28th of September, l850, flogging in the navy and on
board vessels of commerce was abolished.
6. Any excess of correction by the parent, master, officer, or captain,
may render the party guilty of an assault and battery, and liable to all its
consequences. In some prisons, the keepers have the right to correct the
prisoners.
CORREGIDOR, Spanish law. A magistrate who took cognizance of 'various
misdemeanors, and of civil matters. 2 White's Coll. 53.
CORRELATIVE. This term is used to designate those things, one of which
cannot exist without another; for example, father and child; mountain and
valley, &c. Law, obligation, right, and duty, are therefore correlative to
each other.
CORRESPONDENCE. The letters written by one to another, and the answers
thereto, make what is called the correspondence of the parties.
2. In general, the correspondence of the parties contains the best
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evidence of the facts to which it relates. See Letter, contracts; Proposal.
3. When an offer to contract is made by letter, it must be accepted
unconditionally for if the precise terms are changed, even in the slightest
degree, there is no contract. 1 Bouv. Inst. n. 904. See, as to the power of
revoking an offer made by letter, 1 Bouv. Inst. n. 933.
CORRUPTION. An act done with an intent to give some advantage inconsistent
with official duty and the rights of others. It includes bribery, but is
more comprehensive; because an act may be corruptly done, though the
advantage to be derived from it be not offered by another. Merl. Rep. h.t.
2. By corruption, sometimes, is understood something against law; as, a
contract by which the borrower agreed to pay the lender usurious interest.
It is said, in such case, that it was corruptly agreed, &c.
CORRUPTION OF BLOOD,, English crim. law. The incapacity to inherit, or pass
an inheritance, in consequence of an attainder to which the party has been
subject
2. When this consequence flows from an attainder, the party is stripped
of all honors and dignities he possessed, and becomes ignoble.
3. The Constitution of the United States, Amendm. art. 5, provides,
that no person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except in
cases arising in the land or naval, forces, or in the militia, when in
actual service in time of war or public danger" and by art. 3, s. 3, n. 2,
it is declared that "no attainder of treason shall work. corruption of
blood, or forfeiture, except during the life of the person attainted."
4. The Constitution of Pennsylvania, art. 9, s. 19, directs that "no
attainder shall work corruption of blood." 3 Cruise, 240, 378 to 381, 473 1
Cruise, 52 1 Chit. Cr. Law, 740; 4 Bl. Com. 388.
CORSNED, ancient Eng. law. This was a piece of accursed bread, which a
person accused of a crime swallowed to test his innocence. It was supposed
that, if he was guilty, it would choke him.
CORTES. The name of the legislative assemblies of Spain and Portugal.
COSENAGE, torts. Deceit, fraud: that kind of circumvention and wrong, which
has no other specific name. Vide Ayl. Pand. 103 Dane's Ab. Index, h.t.
COSMOPOLITE. A citizen of the world; one who has no fixed. residence. Vide
Citizen.
COSTS, practice. The expenses of a suit or action which may be recovered by
law from the losing party.
2. At common law, neither the plaintiff nor the defendant could recover
costs eonomine; but in all actions in which damages were recoverable, the
plaintiff, in effect, recovered his costs when he obtained a verdict, for
the jury always computed them in the damages. When the defendant obtained a
verdict, or the plaintiff became non-suit, the former was wholly without
remedy for any expenses he had incurred. It is true, the plaintiff was
amerced pro falso clamore suo, but the amercement was given to the king.
Hull on Costs, 2 2 Arch. Pr. 281.
3. This defect was afterwards corrected by the statute of Gloucester, 6
Ed. I, c. 1, by which it is enacted that "the demandant in assise of novel
disseisin, in writs of mort d'ancestor, cosinage, aiel and be sail, shall
have damages. And the demandant shall have the costs of the writ purchased,
together with damages, and this act shall hold place in all cases where the
party recovers damages, and every person shall render damages where land is
recovered against him upon his own intrusion, or his own act." About forty-
six years after the passing of this statute, costs were for the first time
allowed in France, by an ordinance of Charles le Bel, (January, 1324.) See
Hardw. Cas. 356; 2 Inst. 283, 288 2 Loisel, Coutumes, 328-9.
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4. The statute of Gloucester has been adopted, substantially, in all
the United States. Though it speaks of the costs of the writ only, it has,
by construction, been extended to the costs of the suit generally. The costs
which are recovered under it are such as shall be allowed by the master or
prothonotary upon taxation, and not those expenses which the. plaintiff may
have. incurred for himself, or the extraordinary fees he may have paid
counsel, or for the loss of his time. 2 Sell. Pr. 429.
5. Costs are single, when the party receives the same amount he has
expended, to be ascertained by taxation; double, vide Double costs. and
treble, vide Treble costs. Vide, generally, Bouv. Inst. Index, h.t.;
Hullock on Costs; Sayer's Law of Costs; Tidd's Pr. c. 40; 2 Sell. Pr. c. 19;
Archb. Pr. Index, h.t.; Bac. Ab. h.t.; Com. Dig. h.t.; 6 Vin. Ab. 321;
Grah. Pr. c. 23 Chit. Pr. h.t. 1 Salk. 207 1 Supp. to Ves. jr. 109; Amer.
Dig. h.t.; Dane's Ab. h.t.; Harr. Dig. h.t. As to the liability of
executors and administrators for costs, see 1, Chit. R. 628, note; 18 E. C.
L. R. 185; 2 Bay's R. 166, 399; 1 Wash. R. 138; 2 Hen. & Munf. 361, 369; 4
John. R. 190; 8 John. R. 389; 2 John. Ca. 209. As to costs in actions qui
tam, see Esp. on Pen. Act. 154 to 165.
COTTAGE, estates. A small dwelling house. See 1 Tho. Co. Litt. 216; Sheph.
Touchst. 94; 2 Bouv. Inst. n. 1571, note.
2. The grant of a cottage, it is said, passes a small dwelling-house,
which has no land belonging to it. Shep. To. 94.
COUCHANT. Lying down. Animals are said to have been levant and couchant,
when they have been upon another person's land, damage feasant, one night at
least. 3 Bl. Com. 9.
COUNCIL, legislation. This word signifies an assembly.
2. It was used among the Romans to express the meeting of only a part
of the people, and that the most respectable, in opposition to the
assemblies of the whole people.
3. It is now usually applied to the legislative bodies of cities and
boroughs.
4. In some states, as in Massachusetts, a body of men called the
council, are elected, whose duties are to advise the governor in the
executive part of the government. Const. of Mass. part 2, c. 2, s. 3, art. 1
and 2. See 14 Mass. 470; 3 Pick. 517; 4 Pick. 25 19 John. R. 58. In England,
the king's council are the king's judges of his courts of justice. 3 Inst.
125; 1 Bl. Com. 229.
COUNSEL. Advice given to another as to what he ought to do or not to do.
2. To counsel another to do an unlawful act, is to become accessory to
it, if it be a felony, or principal, if it be treason, or a misdemeanor. By
the term counsel is also understood counsellor at law. Vide To open;
Opening.
COUNSEL, an officer of court. One who undertakes to conduct suits and
actions in court. The same as counsellor.
COUNSEL, practice, crim. law. In the oath of the grand jurors, there is a
provision requiring them to keep secret "the commonwealth's counsel, their
fellows, and their own." In this sense this word is synonymous with
knowledge; therefore, all the knowledge acquired by grand jurors, in
consequence of their office, either from the officers of the commonwealth,
from their fellow jurors, or which they have obtained in any manner, in
relation to cases which come officially before them, must be kept secret.
See Grand Jury.
COUNSELLOR, government. A counsellor is a member of a council. In some of
the states the executive power is vested in a governor, or a governor and
lieutenant governor, and council. The members of such council are called
counsellors. See the names of the several states.
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COUNSELLOR AT LAW, offices. An officer in the supreme court of the United
States, and in some other courts, who is employed by a party in a cause, to
conduct the same on its trial on his behalf. He differs from an attorney at
law. (q.v.)
2. In the supreme court of the United States, the two degrees of
attorney and counsel are kept separate, and no person is permitted to
practise both. It is the duty of the counsel to draft or review and correct
the special pleadings, to manage the cause on trial, and, during the whole
course of the suit, to apply established principles of law to the exigencies
of the case. 1 Kent, Com. 307.
3. Generally in the other courts of the United States, as well as in
the courts of Pennsylvania, the same person perform's the duty of counsellor
and attorney at law.
4. In giving their advice to their clients, counsel and others,
professional men have duties to perform to their clients, to the public, and
to themselves. In such cases they have thrown upon them something which they
owe to the fair administration of justice, as well as to the private
interests of their employers. The interests propounded for them ought, in
their own apprehension, to be just, or at least fairly disputable; and when
such interests are propounded, they ought not to be pursued per fas et
nefas. Hag. R. 22.
5. A counsellor is not a hired person, but a mandatory; he does not
render his services for a price, but an honorarium, which may in some degree
recompense his care, is his reward. Doubtless, he is not indifferent to this
remuneration, but nobler motives influence his conduct. Follow him in his
study when he examines his cause, and in court on the trial; see him
identify himself with the idea of his client, and observe the excitement he
feels on his account; proud when he is, conqueror, discouraged, sorrowful,
if vanquished; see his whole soul devoted to the cause he has undertaken,
and which he believes to be just, then you perceive the elevated man,
ennobled by the spirit of his profession, full of sympathy for his cause and
his client. He may receive a reward for his services, but such things cannot
be paid for with money. No treasures can purchase the sympathy and
devotedness of a noble mind to benefit humanity; these things are given, not
sold. See Honorarium. 6. Ridley says, that the law has appointed no stipend
to philosophers and lawyers not because they are not reverend services and
worthy of reward or stipend, but because either of them are most honorable
professions, whose worthiness is not to be valued or dishonored by money.
Yet, in these cases many things are honestly taken, which are not honestly
asked, and the judge may, according to the quality of the cause, and the
still of the advocate, and the custom of the court, and, the worth of the
matter that is in hand, appoint them a fee answerable to their place. View
of the Civil and Eccles. Law, 38, 39.
COUNT, pleading. This word, derived from the French conte, a narrative, is
in our old law books used synonymously with declaration but practice has
introduced the following distinction: when the plaintiff's complaint
embraces only a single cause of action, and he makes only one statement of
it, that statement is called, indifferently, a declaration or count; though
the former is the more usual term.
2. But when the suit embraces two or more causes of action, (each of
which of course requires a different statement;) or when the plaintiff makes
two or more different statements of one and the same cause of action, each
several statement is called a count, and all of them, collectively,
constitute the declaration.
3. In all cases, however, in which there are two or more counts, whether
there is actually but one cause of action or several, each count purports,
upon the face of it, to disclose a distinct right of action, unconnected
with that stated in any of the other counts.
4. One object proposed, in inserting two or more counts in one
declaration, when there is in fact but one cause of action, is, in some
cases, to guard against the danger of an insufficient statement of the
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cause, where a doubt exists as to the legal sufficiency of one or another of
two different modes of declaring; but the more usual end proposed in
inserting more than one count in such case, is to accommodate the statement
to the cause, as far as may be, to the possible state of the proof to be
exhibited on trial; or to guard, if possible, against the hazard of the
proofs varying materially from the statement of the cause of action; so that
if one or more or several counts be not adapted to the evidence, some other
of them may be so. Gould on Pl. c. 4, s. 2, 3, 4; Steph. Pl. 279; Doct. Pl.
1 78; 8 Com. Dig. 291; Dane's Ab. Index, h.t.; Bouv. Inst. Index, h.t. In
real actions, the declaration is most usually called a count. Steph. Pl. 36,
See Common count; Money count.
COUNTER, Eng. law. The name of an ancient prison in the city of London,
which has now been demolished.
COUNTER AFFIDAVIT. An affidavit made in opposition to one already made; this
is allowed in the preliminary examination of some cases.
COUNTER SECURITY. Security given to one who has become security for another,
the condition of which is, that if the one who first became surety shall be
damnified, the one who gives the counter security will indemnity him.
TO COUNTERFEIT, criminal law. To make something false, in the semblance of
that which is true; it always implies a fraudulent intent. Vide Vin. Ab. h.t.
Forgery.
COUNTERMAND. This word signifies a. change or recall of orders previously
given.
2. It may be express or implied. Express, when contrary orders are
given and a revocation. of the former order is made. Implied, when a new
order is given which is inconsistent with the former order: as, if a man
should order a merchant to ship him in a particular vessel certain goods
which belonged to him, and then, before the goods were shipped, he directed
him to ship them in another vessel; this would be a countermand of the first
order.
3. While the first command is unrecalled, the person who gave it would
be liable to all the consequences in case he should be obeyed; but if, for
example, a man should command another to commit a crime and, before its
perpetration, he should repent and countermand it, he would not be liable
for the consequences if the crime should afterwards be committed.
4. When a command or order has been given, and property delivered, by
which a right vests in a third person, the party giving the order cannot
countermand it; for example, if a debtor should deliver to A a sum of money
to be paid to B, his creditor, B has a vested right in the money, and unless
he abandon that right, and refuse to take the money, the debtor cannot
recover it from A. 1 Roll. Ab. 32, pl. 13; Yelv. 164 Sty. 296. See 3 Co. 26
b.; 2 Vent. 298 10 Mod. 432; Vin. Ab. Countermand, A 1; Vin. Ab. Bailment,
D; 9 East, 49; Roll. Ab. 606; Bac. Ab. Bailment, D; Com. Dig. Attorney, B 9,
c. 8; Dane's Ab. h.t.; and Command.
COUNTERPART, contracts. Formerly each party to an indenture executed a
separate deed; that part which was executed by the grantor was called the
original, and the rest the counterparts. It is now usual for all the parties
to execute every part, and this makes them all originals. 2 Bl. Com. 296.
2. In granting lots subject to a ground rent reserved to the grantor,
both parties execute the deeds, of which there are two copies; although both
are original, one of them is sometimes called the counterpart. Vide 12 Vin.
Ab. 104; Dane's Ab. Index, h.t.; 7 Com. Dig. 443; Merl. Repert. mots Double
Ecrit.
COUNTERPLEA, pleading. When a tenant in any real action, tenant by the
curtesy, or tenant in dower, in his answer and plea, vouches any one to
warrant his title, or prays in aid another who has a larger estate, as of
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the remainder-man or reversioner or when a stranger to the action comes and
prays to be received to save his estate; then that which the defendant
alleges against it, why it should not be admitted, is called a counterplea.
T. de la Ley; Doct. Placit. 300 Com. Dig. h.t.; Dane's Ab. Index, h.t.
COUNTERS, English law. Formerly there were in London two prisons belonging
to the sheriffs courts, which bore this name. They are now demolished. 4
Inst. 248.
COUNTERSIGN. To countersign is to sign on the opposite side of an instrument
already signed by some other person or officer, in order to secure its
character of a genuine paper; as a bank note is signed by the president and
countersigned by the cashier.
COUNTRY. By country is meant the state of which one is a member.
2. Every man's country is in general the state in which he happens to
have been born, though there are some exceptions. See Domicil; Inhabitant.
But a man has the natural right to expatriate himself, i. e. to abandon his
country, or his right of citizenship acquired by means of naturalization in
any country in which he may have taken up his residence. See Allegiance;
Citizen; Expatriation. in another sense, country is the same as pais. (q.v.)
COUNTY. A district into which a state is divided.
2. The United States are generally divided into counties; counties are
divided into townships or towns.
3. In Pennsylvania the division of the province into three Counties,
viz. Philadelphia, Bucks and Chester, was one of the earliest acts of
William Penn, the original proprietary. There is no printed record of this
division, or of the original boundaries of these counties. Proud says it was
made about the year 1682. Proud's Hist. vol. 1 p. 234 vol. 2, p. 258.
4. In some states, as Illinois; 1 Breese, R. 115; a county is
considered as a corporation, in others it is only a quasi corporation. 16
Mass. R. 87; 2 Mass. R. 644 7 Mass. R. 461; 1 Greenl. R. 125; 3 Greenl. R.
131; 9 Greenl. R. 88; 8 John. R. 385; 3 Munf. R. 102. Frequent difficulties
arise on the division of a county. On this subject, see 16 Mass. R. 86 6 J.
J. Marsh. 147; 4 Halst. R. 357; 5 Watts, R. 87 1 Cowen, R. 550; 6 Cowen, R.
642; Cowen, R. 640; 4 Yeates, R. 399 10 Mass. Rep. 290; 11 Mass. Rep. 339.
5. In the English law this word signifies the same as shire, county
being derived from the French and shire from the Saxon. Both these words
signify a circuit or portion of the realm, into which the whole land is
divided, for the better government thereof, and the more easy administration
of justice. There is no part of England that is not within some county, and
the shire-reve, (sheriff) originally a yearly officer, was the governor of
the county. Four of the counties of England, viz. Lancaster, Chester, Durham
and Ely, were called counties Palatine, which were jurisdictions of a
peculiar nature, and held by, especial charter from the king. See stat. 27
H. VIII. c. 25.
COURT MARTIAL. A court authorized by the articles of war, for the trial of
all offenders in the army or navy, for military offences. Article 64,
directs that general courts martial may consist of any number of
commissioned officers, from five to thirteen, inclusively; but they shall
not consist of less than thirteen, where the number can be convened, without
manifest injury to the service.
2. The decision of the commanding officer who appoints the court, as to
the number that can be convened without injury to the service, is
conclusive. 12 Wheat. R. 19. Such a court has not jurisdiction over a
citizen of the United States not employed in military service 12 John. R.
257. It has merely a limited jurisdiction, and to render its jurisdiction
valid, it must appear to have acted within such jurisdiction. 3 S. & R. 590
11 Pick. R. 442; 19 John. R. 7; 1 Rawle, R. 143.
3. A court martial must have jurisdiction over the subject matter of
inquiry, and over the person for a want of these will render its judgment
null, and the members of the court and the officers who execute its
sentence, trespassers. 3 Cranch, 331. See 5 Wheat. 1; 12 Wheat. 19; 1 Brock.
324. Vide Gord. Dig. Laws U. S., art. 3331 to 3357; 2 Story,. L. U. S. 1000;
and also the Treatises of Adye, Delafon, Hough, J. Kennedy, M. V. Kennedy,
McArthur, McNaghten, Simmons and Tyler on Courts Martial; and 19 John. R, 7;
12 John. R. 257; 20 John. R. 343; 5 Wheat. R. 1; 1 U. S. Dig. tit. Courts,
V.
COURT OF PECULIARS, Eng. eccl. law. The name of a court, which is a branch
of, and annexed to, the. court of arches.
2. It has jurisdiction over all those parishes dispersed through the
province of Canterbury, in the midst of other dioceses. In the other
peculiars, the jurisdiction is exercised by commissaries. 1 Phill. R. 202,
n.
3. There are three sorts of peculiars 1. Royal peculiars. 3 Phill. R.
245. 2. The second sort are those in which the bishop has no concurrent
jurisdiction, and are exempt from his visitation. 3. The third are subject
to the bishop's visitation, and liable to his superintendence and
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jurisdiction. 3 Phill. R. 245; Skinn. R. 589.
COURT PREROGATIVE. Vide Prerogative Court.
COURT, PRIZE. One of the branches of the English admiralty, is called a
prize court. Vide Prize Court.
COURT OF RECORD. At common law, any jurisdiction which has the power to fine
and imprison, is a court of record. Salk. 200; Bac. Ab. Fines and
Amercements, A. And courts which do not possess this power are not courts of
record. See Court.
2. The act of congress, to establish an uniform rule of naturalization,
&c., approved April 14, 1802, enacts, that for the purpose of admitting
aliens to become citizens, that every court of record in any individual
state, having common law jurisdiction and a seal, and a clerk or
prothonotary, shall be considered as a district court within. the meaning of
this act.
COURTESY, OR CURTESY, Scotch law. A right which vests in the husband, and is
in the nature of a life-rent. It is a counterpart of the terce. Courtesy
requires, 1st. That there shall have been a living child born of the
marriage, who is heir of the wife, or who, if surviving, would have been
entitled to succeed. 2d. That the wife shall have succeeded to the subjects
in question as heir either of line, or of talzie, or of provision. 1 Bell's
Com. 61; 2 Ersk. 9, 53. See Curtesy.
COURTESY OF ENGLAND. See Estates by the Courtesy.
COUSIN, domest. rel. Cousins are kindred who are the issue of two brothers
or two sisters, or of a brother and a sister. Those who descend from the
brother or sister of the father of the person spoken of are called paternal
cousins; maternal cousins are those who are descended from the brothers or
sisters of the mother. Vide 2 Bro. C. C. 125; 1 Sim. & Stu. 301; 3 Russ. C.
C. 140; 9 Sim. R. 386, 457.
COVENANT, remedies. The name of an action instituted for the recovery of
damages for the breach of a covenant or promise under seal. 2 Ld. Raym. 1536
F; N. B. 145 Com. Dig. Pleader, 2 V 2 Id. Covenant, A 1; Bouv. Inst. Index,
h.t.
2. The subject will be considered with reference, 1. To the kind of
claim or obligation on which this action may be maintained. 2. The form of
the declaration. 3. The plea. 4. The judgment.
3.-1. To support this action, there must be a breach of a promise
under seal. 6 Port. R. 201; 5 Pike, 263; 4 Dana, 381; 6 Miss. R. 29. Such
promise may be contained in a deed-poll, or indenture, or be express or
implied by. law from the terms of the deed; or for the performance of
something in futuro, or that something has been done; or in some cases,
though it relate to something in presenti, as that the covenantor has, a
good title. 2 Saund. 181, b. Though, in general, it is said that covenant
will not lie on a contract inpresenti, as on a covenant to stand seized, or
that a certain horse shall henceforth be the property of another. Plowd.
308; Com. Dig. Covenant, A 1; 1 Chit. PI.. 110. The action of covenant is
the peculiar remedy for the non-performance of a promise under seal, where
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the damages are unliquidated, and depend in amount on the opinion of a jury,
in which case neither debt nor assumpsit can be supported but covenant as
well as the action of debt, may be maintained upon a single bill for a sum
certain. When the breach of the covenant amounts to misfeasance, the
covenantee has an election to proceed by action of covenant, or by action on
the case for a tort, as against a lessee, either during his term or
afterwards, for waste; 2 Bl. R. 1111; 2 Bl. R. 848; but this has been
questioned. When the contract under seal has been enlarged by parol, the
substituted agreement will be considered, together with the original
agreement, as a simple contract. 2 Watt's R. 451 1 Chit. Pl. 96; 3 T. R.
590.
4.-2. The declaration must state that the contract was under seal and
it should make proffer of it, or show some excuse for the omission. 3 T. 11.
151. It is not, in general, requisite to state tho consideration of the
defendant's promise, because a contract under seal usually imports a
consideration; but when the performance of the consideration constitutes a
condition precedent, such performance must be averred. So much only of the
deed and covenant should be set forth as is essential to the cause of
action: although it is usual to declare in the words of the deed, each
covenant may be stated as to its legal effect. The breach may be in the
negative of the covenant generally 4 Dall. R. 436; or, according to the
legal effect, and sometimes in the alternative and several breaches may be
assigned at common law. Damages being the object of the suit, should be laid
sufficient to cover the real amount. Vide 3 Serg. & Rawle, 364; 4 Dall. R.
436 2 Yeates' R. 470 3 Serg. & Rawle, 564, 567; 9 Serg. & Rawle, 45.
5.-3. It is said that strictly there is no general issue in this
action, though the plea of non est factum has been said by an intelligent
writer to be the general issue. Steph. Pl. 174. But this plea only puts in
issue the fact of scaling the deed. 1 Chit. Pl. 116. Non infregit
conventionem, and nil debet, have both been held to be insufficient. Com.
Dig. Pleader, 2 V 4. In Pennsylvania, by a practice peculiar to that state,
the defendant may plead covenants and under this. plea, upon notice of the
special matter, in writing, to the plaintiff, without form, he may give
anything in evidence which he might have pleaded. 4 Dall. 439; 2 Yeates,
107; 15 Serg. & Rawle, 105. And this evidence, it seems, may be given in the
circuit courts of the United States in that state without notice, unless
called for 2 W. C. C. R. 4 5 6.
6.-4. The judgment is that the plaintiff recover a named sum for his
damages, which he has sustained by reason of the breach or breaches of
covenant, together with costs.
COVENANT, contracts. A covenant, conventio, in its most general
signification, means any kind of promise or contract, whether it be made in
writing or by parol. Hawk. P. C. b. 1, c. 27, Sec. 7, s. 4. In a more
technical sense, and the one in which it is here considered, a covenant is
an agreement between two or more persons, entered into in writing and under
seal, whereby either party stipulates for the truth of certain facts, or
promises to perform or give something to the other, or to abstain from the
performance of certain things. 2 Bl. Com. 303-4; Bac. Ab. Covenant, in pr.;
4 Cruise, 446; Sheppard, Touchs. 160; 1 Harring. 151, 233 1 Bibb, 379; 2
Bibb, 614; 3 John. 44; 20 John. 85; 4 Day, 321.
2. It differs from an express assumpsit in this, that the former may be
verbal, or in writing not under seal, while the latter must always be by
deed. In an assumpsit, a consideration must be shown; in a covenant no
consideration is necessary to give it validity, even in a court of equity.
Plowd. 308; 7 T. R. 447; 4 Barn. & Ald. 652; 3 Bingh. 111.
3. It is proposed to consider first, the general requisites of a
covenant; and secondly, the several kinds of covenants.
4.-1. The general requisites are, 1st. Proper parties. 2d. Words of
agreement. 3d A legal purpose. 4th. A proper form.
5.-1st. The parties must be such as by law can enter into a contract.
If either for want of understanding, as in the case of an idiot or lunatic;
or in the case of an infant, where the contract is not for his benefit; or
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where there is understanding, but owing to certain causes, as coverture, in
the case of a married woman, or duress, in every case, the parties are not
competent, they cannot bind themselves. See Parties to Actions.
6.-2d. There must be an agreement. The assent or consent must be
mutual for the agreement would be incomplete if either party withheld his
assent to any of its terms. The assent of the parties to a contract
necessarily supposes a free, fair, serious exercise of the reasoning
faculty. Now, if from any cause, this free assent be not given, the contract
is not binding. See Consent.
7.-3d. A covenant against any positive law, or public policy, is,
generally speaking, void. See Nullity; Shep. Touchs. 163. As an example of
the first, is a covenant by one man that he will rob another; and of the
last, a covenant by a merchant or tradesman that he will not follow his
occupation or calling. This, if it be unlimited, is absolutely void but, if
the covenant be that he shall not pursue his business in a particular place,
as, that he will not trade in the city of Philadelphia, the covenant is no
longer against public policy. See Shep. Touchs. 164. A covenant to do an
impossible thing is also void. Ib.
8.-4th. To make a covenant, it must, according to the definition
above given, be by deed, or under seal. No particular form of words is
necessary to make a covenant, but any words which manifest the intention of
the parties, in respect to the subject matter of the contract, are
sufficient. Sec numerous examples in Bac. Abr. Covenant, A Selw. N. P. 469;
Com. Dig. Covenant, A 2; 3 Johns. R. 44; 5 Munf. 483.
9. In Pennsylvania, Delaware, and Missouri, it is declared by statute
that the words grant, bargain, and sell, shall amount to a covenant that the
grantor was seised of an estate in fee, free from all incumbrances done or
suffered by him, and for quiet enjoyment against his acts. But it has been
adjudged that those words in the Pennsylvania statute of 1715, (and the
decision will equally apply to the statutory language in the other two
states,) did not amount to a general warranty, but merely to a covenant that
the grantor had not done any act, nor created any incumbrance whereby the
estate might be defeated. 2 Bin. 95; 11 S. & R. 111, 112; 4 Kent, Com. 460.
10.-2. The several kinds of covenants. They are, 1. Express or
implied. 1. An express, covenant, or a covenant in fact, is one expressly
agreed between the parties and inserted in the deed. The law does not
require any particular form to create an express covenant. The formal word
"covenant" is therefore not indispensably requisite. 2. Mod. 268; 3 Keb.
848; 1 Leon, 324; 1 Bing. 433; 8 J. B. Moore, 546; 1 Ch. Cas. 294; 16 East,
352; 12 East, 182 n.; 1 Bibb, 379; 2 Bibb 614; 3 John. 44; 5 Cowen, 170; 4
Day, 321 4 Conn. 508; 1 Harring. 233. The words "I oblige;" "agree," 1 Ves.
516; 2 Mod. 266; or, "I bind myself to pay so much such a day, and so much
such another day;" Hardr. 178; 3 Leon. 119, Pl. 199; are held to be
covenants; and so are the word's of a bond. 1 Ch. Cas. 194. But words
importing merely an order or direction that other persons should pay a sum
of money, are not a covenant. 6 J. B. Moore, 202, n. (a.)
11.-1. An implied covenant is one which the law intends and implies,
though it be not expressed in words. 1 Common Bench Rep. 402; co. Lit. 139,
b; Vaughan's Rep. 118; Rawle on Covenants, 364. There are some words which
of themselves do not import an express covenant, yet being made use of in
certain contracts, have a similar operation and are called covenants in law.
They are as effectually binding on the parties as if expressed in the most
unequivocal terms. Bac. Ab. Covenant, B. A few examples will fully explain
this. If a lessor demise and grant to his lessee a house or lands for a
certain term, the law will imply a covenant on the part of the lessor, that
the lessee shall during the term quietly enjoy the same against all
incumbrances. Co. Litt. 384. When in a lease the words "grant," 1 Mod. 113
Freem. 367; Cro. Eliz. 214; 4 Taunt. 609; "grant and demise," 4 Wend. 502;
"demise," 10 Mod. 162; 4 Co. 80; Hob. 12; or "demiserunt," I Show. 79 1
Salk. 137, are used, they are so many instances of implied covenants. And
the words "yielding and paying" in a lease, imply a covenant on the part of
lessee, that he will pay the rent. 9 Verm. 151; 3 Penn. 461, 464.
12.-2. Real and personal. 1st. A real covenant is one which has for
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its object something annexed to, or inherent in, or connected with land or
other property. Co Litt. 334; enk 241; Cruise, Dig. tit. 32, c. 25, s. 22;
Platt. on Cov. 60, 61; 2 Bl. Com. 304. A covenant real, which necessarily
runs with the land, as to pay rent, not to cut timber, and the like, is said
to be an inherent covenant. Shep. To. 161. A covenant real runs with the
land and descends to the heir; it is also transferred to a purchaser. Such
covenants are said to run with the land, so that he who has the one is
subject to the other. Bac. Ab. Covenants, E 2. See 2 Penn. 507; 10 Wend 180;
12 Mass. 306; 17 Mass. 586; 5 Cowen, 137; 5 Ham. 156; 5 Conn. 497; 1 Wash.
C. C. 375; 8 Cowen 206; 1 Dall. 210; 11 Shep. 283; 6 Met. 139; 3 Mete. 81; 3
Harring. 338; 17 Wend. 136.
13.-2. As commonly reckoned, there are five covenants for title, viz:
1. Covenant for seisin. 2. That the grantor has perfect right to convey. 3.
That the grantee shall quietly possess and enjoy the premises without
interruption, called a covenant for quiet enjoyment. 4. The covenant against
incumbrances. 5. The covenant for further assurance. 6. Besides these
covenants, there is another frequently resorted to in the United States,
which is relied on more, perhaps, than any other, called the covenant of
warranty. See Rawle on Covenants for Title, where the import and effect of
these covenants are elaborately and luminously discussed.
14.-3. A personal covenant relates only to matters personal, as
distinguished from real, and is binding on the covenantor during life, and
on his personal representatives after his decease, in respect of his assets.
According to Sir William Blackstone, a personal covenant may be transformed
into a real, by the mere circumstance of the heirs being named therein, and
having assets by descent from the covenantor. 2 Bl. Com 304. A covenant is
personal in another sense, where the covenantor is bound to fulfill the
covenant himself; as, to teach an apprentice. F.N.B. 340, A.
15. Personal covenants are also said to be transitive and intransitive;
the former, when the duty of performing them passes to the covenantor's
representatives; the latter, when it is limited to himself; as, in the case
of teaching an apprentice. Bac. Ab. h.t.
16. As they affect each other in the same deed, covenants may be divided
into three classes. 1st. Dependent covenants are those in which the
performance, of one depends on the performance of the other; there may be
conditions which must be performed before the other party is liable to an
action on his covenant. 8 S. & R. 268; 4 Conn. 3; 1 Blackf. 175; John. 209;
2 Stew. & Port. 60; 6 Cowen 296; 3 Ala. R. 330; 3 Pike 581; 2 W. & S. 227; 5
Shep. 232; 11 Verm. 549; 4 W. C. C. 714; Platt on Cov. 71; 2 Dougl. 689;
Lofft, 191; 2 Selw. N. P. 443, 444. To ascertain whether covenants are
dependent or not, the intention of the parties is to be sought for and
regarded rather than the order or time in which the acts are to be done, or
the structure of the instrument, or the arrangements of the covenant. 4
Wash. C. C. 714; 1 Root, 170; 4 Rand. 352; 4 Rawle, 26; 5 Wend. 496; 2 John.
145; 13 Mass. 410; 2 W. & S. 227; 4 W. & S. 527; Willis, 157; 7 T. R. 130; 8
T.R. 366; 5 B. & P. 223; 1 Saund. 320 n.
17.-2d. Some covenants are mutual conditions to be performed at the
same time; these are concurrent covenants. When, in these cases, one party
is ready and offers to perform his part, and the other refuses or neglects to
perform his, he who is ready and offers, has fulfilled his engagement, and
may maintain an action for the default of the other, though it is not
certain that either is obliged to do the first act. 4 Wash. C. C. 714;
Dougl. 698; 2 Selw. N. P. 443; Platt. on Cov. 71.
18.-3d. Covenants are independent or mutual, when either party may
recover damages from the other for the injury he may have received by a
breach of the covenants in his favor, and when it is no excuse for the
defendant to allege a breach of the covenants on the part of the plaintiff.
2 Wash. C. C. R. 456; 5 Shepl. 372; 4 Leigh, 21; 3 Watts & S. 300; 13 Mass.
410; 2 Pick. 300; 2 John. 145; 10 John. 203; Minor 21; 2 Bibb, 15; 3 Stew.
361; 1 Fairf. 49; 6 Binn. 166; 2 Marsh. 429; 7 John. 249; 5 Wend. 496; 3
Miss. 329; 2 Har. & J. 467; 4 Har. & J. 285; 2 Marsh. 429; 4 Conn. 3.
19. Covenants are affirmative and negative. 1st. An affirmative covenant
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is one by which the covenantor binds himself that something has already been
done or shall be performed hereafter. Such a covenant will not deprive a
man of a right lawfully enjoyed by him independently of the covenant; 5 as,
if the lessor agreed with the lessee that he shall have thorns for hedges
growing upon the land, by assignment of the lessor's bailiff; here no
restraint is imposed upon the exercise of that liberty which the law allows
to the lessee, and therefore he may take hedge-bote without assignment. Dy.
19 b, pl. 115; 1 Leon, 251.
20.-2d. A negative covenant is one where the party binds himself that
he has not performed and will not perform a certain act; as, that he will
not encumber. Such a covenant cannot be said to be performed until it
becomes impossible to break it. On this ground the courts are unwilling to
construe a covenant of this kind to be a condition precedent. Therefore,
where a tailor assigned his trade to the defendant, and covenanted
thenceforth to desist from carrying on the said business with any of the
customers, and the defendant in consideration of the performance thereof,
covenanted to pay him a life annuity of 190, it was held that if the words
"in consideration of the performance thereof," should be deemed to amount to
a condition precedent, the plaintiff would never obtain his annuity; because
as at anytime during his life he might exercise his former trade, until his
death it could never be ascertained whether he had performed the covenant or
not. 2 Saund. 156; 1 Sid. 464; 1 Mod. 64; 2 Keb. 674. The defendant,
however, on a breach by plaintiff, might have his remedy by a cross action of
covenant. There is also a difference between a negative covenant, which is
only in affirmance of an affirmative covenant precedent, and a negative
covenant which is additional to the affirmative covenant. 1 Sid. 87; 1 Keb.
334, 372. To a covenant of the former class a plea of performance generally
is good, but not to the latter; the defendant in that case must plead
specially. Id.
21. Covenants, considered with regard to the parties who are to perform
them, are joint or several.
1st. A joint covenant is one by which several parties agree to perform
or do a thing together. In this case although there are several covenantors
there is but one contract, and if the covenant be broken, all the
covenantors living, must be sued; as there is not a separate obligation of
each, they cannot be sued separately.
22.-2d. A several covenant is one entered into by one person only. It
frequently happens that a number of persons enter into the same contract,
and that each binds himself to perform the whole of it; in such case, when
the Contract is under seal, the covenantors are severally bound for the
performance of it. The terms usually employed to make a several covenant are
"severally," or "each of us." In practice, it is common for the parties to
bind themselves jointly and severally, and then the covenant is both joint
and several. Vide Hamm. on Parties 19; Cruise, Dig. tit. 32, c. 25, s. 18;
Bac. Ab. Covenant D.
23. Covenants are executed or executory.
1st. An executed covenant is one which relates to an act already
performed. Shep. To. 161.
24.-2d. An executory covenant is one to be performed at a future time.
Shep. To. 161.
25. Covenants are obligatory or declaratory.
1st. An obligatory covenant is one which is binding on the party
himself, and shall never be construed to raise a use. 1 Sid. 27; 1 Keb. 334.
26.-2d. A declaratory covenant is one which serves to limit and direct
uses. 1 Sid. 27; 1 Heb. 334.
27. Covenants are principal and auxiliary.
1st. A principal covenant is one which relates directly to the principal
matter of the contract entered into between the parties; as, if A covenants
to serve B for one year.
28.-2d. An auxiliary covenant is one, which, not relating directly to
the principal matter of the contract between the parties, yet relates to
something connected with it; as, if A covenants with B, that C will perform
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his covenant to serve him for one year. In this case, if the principal
covenant is void, the auxiliary is discharged. Anstr. 256.
29. Covenants are legal or illegal. 1st. A legal covenant is one not
forbidden by law. Covenants of this kind are always binding on the parties.
30.-2d. An illegal covenant is one forbidden by law, either expressly
or by implication. A covenant entered into, in violation of, the express
provision of a statute is absolutely void. 5 Har. & J. 193; 5 N. H. Rep. 96;
6 N. H. Rep. 225; 4 Dall. 298; 6 Binn. 321; 4 S.& R. 159; 1 Binn. 118; 4
Halst. 252. A covenant is also void, if it be of immoral nature; as, a
covenant for future illicit intercourse and cohabitation; 3 Monr. 35; 3
Burr. 1568; S. C. 1 Bl. Rep. 517; 1 Esp. 13; 1 B. P. 340; or against public
policy; 5 Mass. 385; 7 Greenl. 113; 4 Mass. 370; 5 Halst. 87; 4 Wash. C. C.
297; 11 Wheat. 258; 3 Day, 145; 2 McLean, 464; 7 Watts, 152; 5 Watts & S.
315; 5 How. Miss. 769; Geo. Decis. part 1, 39 in restraint of trade, when
the restraint is general; 21 Wend. 166; 19 Pick. 51; 6 Pick. 206; 7 Cowen,
307; or fraudulent between the parties; 5 Mass. 16; 4 S. & R. 488; 4 Dall.
250; 7 W. & S. 111; or third persons; 3 Day, 450; 14 S. & R. 214; 3 Caines,
213; 15 Pick. 49; 2 John. 286 12 John. 306.
31. Covenants, in the disjunctive or alternative, are those which give
the covenantor the choice of doing, or the covenantee the choice of having,
performed one of two or more things at his election; as, a covenant to make
a lease to Titus, or pay him one hundred dollars on the fourth day of July,
as the covenantor, or the covenantee, as the case may be, shall prefer.
Platt on Cov. 21.
32. Collateral covenants are such as concern some collateral thing,
which does not at all, or not so immediately relate to the thing granted;
as, to pay a sum of money in gross, that the lessor shall distrain for rent,
on some other land than that which is demised, or the like. Touchs. 161; 4
Burr. 2446; 2 Wils. R. 27; 1 Ves. R. 56. These covenants are also termed
covenants in gross. Vide 5 Barn. & Ald. 7, 8; Platt on Cov. 69, 70.
COVENANT NOT TO SUE. This is a covenant entered into by a party who had a
cause of action at the time of making it, and by which he agrees not to sue
the party liable to such action.
2. Covenants of this nature, are either covenants perpetual not to sue,
or covenants not to sue for a limited time; for example, seven years.
3.-1. Covenants perpetual not to sue. These will be considered with
regard to their effect as relates, 1. To the covenantee; 2. To his partners
or co-debtors.
4.-1. A covenant not to sue the covenantee at all, has the effect of
a release to him, and may be pleaded as such to avoid a circuity of action.
Cro. Eliz. 623; 1 T. R. 446; 8 T. R. 486; 1 Ld. Raym 688; S. C. Holt, 178; 2
Salk. 575; 3 Salk. 298; 12 Mod. 415, 548; 7 Mass. 153, 265; 16 Mass. 24; 17
Mass. 623. And see 11 Serg. & Rawle, 149.
5.-2. Where the covenantee is jointly and severally bound with
another to the covenantor, a covenant not to sue him will be no protection
to the other who may be sued on his several obligations and such a covenant
does not mount to a release to him. 2 Salk. 575; S. C. 12 Mod. 551; 8 T. R.
168; 6 Munf. 6; 1 Com. 139; 4 Greenl. 421; 2 Dana, 107; 17 Mass. 623, 628;
16 Mass. 24; 8 Mass. 480. A covenant not to sue, entered into by only one of
several partners, cannot be set up as a release in an action by all the
partners. 3 P. & D. 149.
6.-2. Covenant not to sue for a limited time. Such a covenant does
not operate as a release, nor can it be pleaded as such, but is a covenant
only for a breach of which the obliger may bring his action. Carth. 63; 1
Show. 46; Comb 123, 4; 2 Salk. 573; 6 Wend. 471.
COVENANT FOR QUIET ENJOYMENT. A covenant usually contained in a lease, by
which the lessor covenants or agrees that the tenant shall quietly enjoy the
premises leased. 11 East, 641.
2. Such a covenant is express or implied; express, when it is so
mentioned in the deed it is implied, either from the words used, or from the
conduct of the lessor. The words "grant" or "demise" are held to amount to
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an implied covenant for quiet enjoyment, unless afterwards restrained by a
qualified express covenant. 1 Chit. Pr. 344.
prejudice another of his rights. Co. Litt 357, b; Com. Dig. Covin, A; 1 Vin.
Abr. 473. Vide Collusion; Fraud.
COW. In a penal statute which mentions both cows and beefer's, it was held
that by the term cow, must be understood one that had a calf. 2 East, P. C.
616; 1 Leach, 105.
COWARDICE. Pusillanimity; fear.
2. By the act for the better government of the navy of the United
States, passed April 21, 1800, 1 Story, L. U. S. 761; it is enacted, art. 5,
"every officer or private who shall not properly observe the orders of his
commanding officer, or shall not use his utmost exertions to carry them into
execution, when ordered to prepare for, join in, or when actually engaged in
battle; or shall, at such time, basely desert his duty or station, either
then, or while in sight of an enemy, or shall induce others to do so, every
person so offending, shall, on conviction thereof by a general court martial,
suffer death, or such other punishment as the said court shall adjudge.
3.-Art. 6. "Every officer or private who shall, through cowardice,
negligence, or disaffection, in the time of action, withdraw from, or keep
out of battle, or shall not do his utmost to take or destroy every vessel
which it is his duty to encounter, or shall not do his utmost endeavor to
afford relief to ships belonging to the United States, every such offender
shall, on conviction thereof by a general court martial, suffer death, or
such other punishment as the said court shall adjudge."
4. By the act for establishing rules and articles for the government of
the armies of the United States, passed April 10, 1806, it is enacted, art.
52, "any officer or soldier, who shall misbehave himself before the enemy,
run away, or shamefully abandon any fort, post, or guard, which he or they
may be commanded to defend, or speak, words inducing others to do the like,
or shall cast away his arms and ammunition, or who shall quit his post or
colors to plunder and pillage, every such offender, being duly convicted
thereof, shall suffer death, or such other punishment as shall be ordered by
the sentence of a general court martial."
CRANAGE. A toll paid for drawing merchandise out of vessels to the wharf, so
called, because the instrument used for the purpose is called a crane. 8 Co.
46.
CRETION, civil law.. The acceptance of a succession. Cretion was an act made
before a magistrate, by which an instituted heir, who was required to accept
of the succession within a certain time, declares within that time that he
accepted the succession. Clef cles Lois Rom. h.t.
2. Cretion is also used to signify the term during which the heir is
allowed to make his election to take or not to take the inheritance. It is
so called, because the heir is allowed to see, cernere, examine, and decide.
Gaii, lust. lib. 2, Sec. 164.
CREW. Those persons who are employed in the navigation of a vessel.
2. A vessel to be seaworthy must have a sufficient crew. 1 Caines, R.
32; 1 John. R. 184.
3. In general, the master or captain (q.v.) has the selection of the
crew. Vide Muster roll; Seaman; Ship; Shipping articles.
CRY DE PAYS, OR CRI DE PAIS. Literally, cry of the country. In England, when
a felony has been committed, hue and cry (q.v.) may be raised by the
country, in the absence of the constable. It is then cry de pays. 2 Hale, P.
C. 100.
CUI ANTE DIVORTIUM. The name of an ancient writ, which was issued in favor
of a woman divorced from her husband, to recover the lands and tenements
which she had in fee simple, or in tail, or for life, from him to whom her
husband alienated them during the marriage, when she could not gainsay it.
F. N. B. 240. Vide Sur cui ante divortium.
CUI IN VITA. The name of a writ of entry for a widow against a person to
whom the husband had, in his lifetime, aliened the lands of the wife. F. N.
B. 193. This writ was founded sometimes on the stat. 13 Ed. 1. c. 3, and
sometimes on the common law. The object of this statute, was to enable the
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wife to avoid a judgment to recover her land which had been rendered on the
default or confession of her husband. It is now of no use in England,
because the stat. 32 H. VIII. c. 28, Sec. 6, provides that no act of the
husband, whether fine, feoffment, or other act of the husband during
coverture, shall prejudice the wife. Both these statutes are reported as in
force in Pennsylvania. 3 Bin. Appx. See Booth on Real Actions, 186; 6 Rep.
8, 9, Forrers' Case. Still, that part of the stat. 13 Ed. I. c. 8, which
relates to the pleadings and evidence in such cases is important if it can
be enforced in the modern action of ejectment, viz: that which requires the
tenant of the lands to show his right according to the form of the writ he
sued out against the husband. See Report of the Commissioners to revise the
Civil Code of Pennsylvania, Jan. 16, 1835, pp. 90, 91.
CUL DE SAC. This is a French phrase, which signifies, literally, the bottom
of a bag, and, figuratively, a street not open at both ends. It seems not to
be settled whether a cul de sac is to be considered a highway. See 1 Campb.
R. 260; 11 East, R. 376, note; 5 Taunt. R. 137; 5 B. & Ald. 456; Hawk. P. C.
b. 1, c. 76, s. 1 Dig. lib. 50, tit. 16, l. 43; Dig. lib. 43, t. 12, 1. Sec.
13; Dig. lib. 47, tit. 10, 1. 15, Sec. 7.
CULPA. A fault committed without fraud, and this distinguishes it from
dolus, which is a trick to deceive. See Dolus.
CULPRIT, crim. law. When a prisoner is arraigned, and he pleads not guilty,
in the English practice, the clerk, who arraigns him on behalf of the crown,
replies that the prisoner is guilty, and that he is ready to prove the
accusation; this is done by two monosyllables, cul prit. Vide
Abbreviations; 4 Bl. Com. 339; 1 Chit. Cr. Law, 416.
CUM PERTINENTIS. With the appurtenances. See Appurtenances.
CUM ONERE. This term is usually employed to show that something is taken,
subject to a charge or burden.
CUM TESTAMENTO ANNEXO. With the testament or will annexed. It often happens
that the deceased, although he makes a will, appoints no executor, or else
the appointment fails; in either of which events he is said to die quasi
intestatus. 2 Inst. 397. The appointment of an executor fails, 1st. When the
person appointed refuses to act. 2d. When the person appointed dies before
the testator, or before he has proved the will, or when, from any other
legal cause, he is incapable of acting. 3d. When the executor dies
intestate, (and in some places, as in Pennsylvania, whether he die testate
or intestate,) after having proved the will, but before he has administered
all the personal estate of the deceased. In all these cases, as well as when
no executor has been appointed, administration, with the will annexed, must
be granted by the proper officer. In the case where the goods are, not all
administered before the death of the executor, the administration is also
called an administration de bonis non.
2. The office of such an an administrator differs little from that of
an executor. Vide Com. Dig. Administration; Will. Ex. p. 1, b. 5, c. 3, s.
1; 2 Bl. Com. 504-5; 11 Vin. Ab. 78; Toll. 92 Gord. Law of Deced. 98.
CUMULATIVE. Forming a heap; additional; as, cumulative evidence, or that
which goes to prove the same point which has been established by other
evidence. Cumulative legacy, or accumulative legacy, is a second bequest,
given by the same testator to the same legatee. 2 Rop. Log. 19,. See 1
Saund. 134, n. 4; Remedy.
CUMULATIVE LEGACY. Vide Legacy accumulative; and 8 Vin. Ab. 308 1 Supp. to
Ves. jr. 133, 282, 332.
CURATE, eccl. law. One who represents the incumbent of a church, person,
or20 vicar, and takes care of the church, and performs divine service in his
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stead.
CURATOR, persons, contracts. One who has been legally appointed to take care
of the interests of one who, on account of his youth, or defect of his
understanding, or for some other cause, is unable to attend to them himself.
2. There are curators ad bona, of property, who administer the estate
of a minor, take care of his person, and intervene in all his contracts;
curators ad litem, of suits, who assist the minor in courts of justice, and
act as curator ad bona in cases where the interests of the curator are
opposed to the interests of the minor. Civ. Code of Louis. art. 357 to 366.
There are also curators of insane persons Id. art. 31; and of vacant
successions and absent heirs. Id. art. 1105 to 1125.
3. The term curator is usually employed in the civil law, for that of
guardian.
CURATORSHIP, offices, contracts, in the civil law. The power given by
authority of law, to one or more persons, to administer the property of an
individual who is unable to take care of his own estate and affairs, either
on account of his absence without an authorized agent, or in consequence of
his prodigality, or want of mind. Poth. Tr. des Personnes, t. 6, s. 5. As to
the laws of Louisiana, which authorize a curatorship, vide Civ. Code, art.
31, 50, et seq. 357, et seq.; 382, 1105, et seq.
2. Curatorship differs from tutorship, (q.v.) in this, that the latter
is instituted for the protection of property in the first place, and,
secondly, of the person; while the former is intended to protect, first,
the person, and, secondly, the property. 1 Lecons Elem. du Droit Civ. Rom.
241.
CURFEW. The name of a law, established during the reign of the English
king, William, the conqueror, by which the people were commanded to dispense
with fire and candle at eight o'clock at night.
It was abolished in the reign of Henry I., but afterwards it signified
the time at which the curfew formerly took place. The word curfew is
derived, probably, from couvre few, or cover fire. 4 Bl. Com. 419, 420.
CURIA. A court of justice.
CURIA CLAUDENDA, WRIT DE, Eng. law. The name of a writ, used to compel a
party to enclose his land. F. N. B. 297.
CURIA ADVISARE VULT, practice. The court will consider the matter. This
entry is made on the record when the court wish to take time to consider of
a case before they give a final judgment, which is made by an abbreviation,
cur. ad vult, for the purpose of marking the continuance. In the technical
sense, it is a continuance of the cause to another term.
CURIA REGIS. An English court, which assumed this name, during the reign of
Henry II. It was Curia or Aula Regis, because it was held in the great hall
of the king's palace; and where the king, for some time, administered
justice in person. But afterwards, the judicial power was more properly
entrusted to the king's judges. The judges who sat in this court were
distinguished by the name of justices, or justiciaries. Besides these, the
chief justiciary, the stewart of all England, the chancellor, the
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chamberlain, and the treasurer, also took part in the judicial proceedings
of this court.
CURIALITY, Scotch law. The same as courtesy. (q.v.) 1 Bell's Com. 61.
CURRENCY. The money which passes, at a fixed value, from hand to hand; money
which is authorized by law.
2. By art. 1, s. 8, the Constitution of the United States authorizes
congress "to coin money, and to regulate the value thereof." Changes in the
currency ought not to be made but for the most urgent reason, as they
unsettle commerce, both at home and abroad. Suppose Peter contracts to pay
Paul one thousand dollars in six months-the dollar of a certain fineness
of silver, weighing one hundred and twelve and a half grains-and
afterwards, before the money becomes due, the value of the dollar is
changed, and it weighs now but fifty-six and a quarter grains; will one
thousand of the new dollars pay the old debt? Different opinion may be
entertained, but it seems that such payment would be complete; because, 1.
The creditor is bound to receive the public currency; and, 2. He is bound to
receive it at its legal value. 6 Duverg. n. 174.
CURRENT, merc. law. A term used to express present time; the current month;
i.e. the present month. Price current, is the ordinary price at the time
spoken of. A printed paper, containing such prices, is also called a price
current.
2. Current, in another sense, signifies that which is readily received;
as, current money.
CURSITOR BARON, Eng. law. An officer of the court of the exchequer, who is
appointed by patent under the great seal, to be one of the barons of the
exchequer.
CURTESY, or COURTESY, Scotch law. A life-rent given by law to the surviving
husband, of all his wife's heritage of which she died intest, if there was a
child of the marriage born alive. The child born of the marriage must be the
mother's heir. If she had a child by a former marriage, who is to succeed to
her estate, the husband has no right to the curtesy while such child is
alive; so that the curtesy is due to the husband rather as father to the
heir, than as husband to an heiress, conformable to the Roman law, which
gives to the father the usufruct of what the child succeeds to by the
mother. Ersk. Pr. L. Scot. B. 2, t. 9, s. 30. Vide Estate by the curtesy.
CURTILAGE, estates. The open space situated within a common
enclosure belonging to a dwelling-house. Vide 2 Roll, Ab. 1, l. 30;
Com. dig. Grant, E 7, E 9; Russ. & Ry. 360; Id. 334, 357; Ry &
Mood. 13; 2 Leach, 913; 2 Bos. & Pull. 508; 2 East, P. C. 494;
Russ. & Ry. 170, 289, 322; 22 Eng. Com. Law R. 330; 1 Ch. Pr. 175;
Shep. Touchs. 94.
CUSTODY. The detainer of a person by virtue of a lawful authority. To be in
custody, is to be lawfully detained under arrest. Vide 14 Vin. Ab. 359; 3
Chit. Pr. 355. In another sense, custody signifies having the care and
possession of a thing; as, the chancellor is entitled to the custody as the
keeper of the seal.
CUSTOM. A usage which had acquired the force of law. It is, in fact, a lex
loci, which regulates all local or real property within its limits. A
repugnancy which destroys it, must be such as to show it never did exist. 5
T. R. 414. In Pennsylvania no customs have the force of law but those which
prevail throughout the state. 6 Binn. 419, 20.
2. A custom derives its force from the tacit consent of the legislature
and the people, and supposes an original, actual deed or agreement. 2 Bl.
Com. 30, 31; 1 Chit. Pr. 283. Therefore, custom is the best interpreter of
laws: optima est legum interpres consuetudo. Dig. 1, 8, 37; 2 Inst. 18. It
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follows, therefore, there; can be no custom in relation to a matter
regulated by law. 8 M. R. 309. Law cannot be established or abrogated except
by the sovereign will, but this will may be express or implied and presumed
and whether it manifests itself by word or by a series of facts, is of
little importance. When a custom is public, peaceable, uniform, general,
continued, reasonable and certain, and has lasted "time whereof the memory
of man runneth not to the contrary," it acquires the force of law. And when
any doubts arise as to the meaning of a statute, the custom which has
prevailed on the subject ought to have weight in its construction, for the
manner in which a law has always been executed is one of its modes of
interpretation. 4 Penn. St. Rep. 13.
3. Customs are general or, particular customs. 1. By general customs is
meant the common law itself, by which proceedings and determinations in
courts are guided.
2. Particular customs, are those which affect the inhabitants of some
particular districts only. 1 Bl. Com. 68, 74. Vide 1 Bouv. Inst. n. 121 Bac.
Ab. h.t.; 1 Bl. Com. 76; 2 Bl. Com. 31; 1 Lill. Reg. 516; 7 Vin. Ab. 164;
Com. Dig. h.t.; Nelson's Ab. h.t. the various Amer. Digs. h.t. Ayl. Pand.
15, 16; Ayl. Pareg. 194; Doct. Pl. 201; 3 W. C. C. R. 150; 1 Gilp. 486; Pet.
C. C. R. 220; I Edw. Ch. R. 146; 1 Gall. R. 443; 3 Watts, R. 178; 1 Rep.
Const. Ct. 303, 308; 1 Caines, R. 45; 15 Mass. R. 433; 1 Hill, R. 270;
Wright, R. 573; 1 N. & M. 176; 5 Binn. R. 287; 5 Ham. R. 436; 3 Conn. R. 9;
2 Pet. R. 148; 6 Pet. R. 715; 6 Porter R. 123; 2 N. H. Rep. 93; 1 Hall, R.
612; 1 Harr. & Gill, 239; 1 N. S. 192; 4 L. R. 160; 7 L. R. 529; Id. 215.
CUSTOM OF MERCHANTS, lex mercatoria. A system of customs acknowledged and
taken notice of by all nations, and are, therefore, a part of the general
law of the land. See Law merchant, and 1 Chit. Bl. 76, note 9.
CUSTOM-HOUSE. A place appointed by law, in ports of entry, where importers
of goods, wares and merchandise are bound to enter the same, in order to pay
or secure the duties or customs due to the government.
CUSTOMARY RIGHTS. Rights which are acquired by custom. They differ from
prescriptive rights in this, that the former are local usages, belonging to
all the inhabitants of a particular place or district-the latter are
rights of individuals, independent of the place of their residence. Best on
Pres. Sec. 79; Cruise, Dig. t. 31, c. 1, Sec. 7; 2 Greenl. Evi 542.
CUSTOMS. This term is usually applied to those taxes which are payable upon
goods and merchandise imported or exported. Story, Const. Sec. 949; Bac. Ab.
Smuggling.
CUSTOS ROTULORUM, Eng. law. The principal justice of the peace of a county,
who is the keeper of the records of the county. 1 Bl. Com. 349.
TO CUT, crim. law. To wound with an instrument having a sharp edge. 1 Russ.
on Cr. 577. Vide To Stab; Wound.
CY PRES, construction. These are old French words, which signify "as near
as."
2. In cases where a perpetuity is attempted in a will, the courts do
not, if they can avoid it, construe the devise to be utterly void, but
expound the will in such a manner as to carry the testator's intentions into
effect, as far as the rules respecting perpetuities will allow; this is
called construction cy pres. When the perpetuity is attempted in a deed, all
the limitations are totally void. Cruise, Dig. t. 38, c. 9, s. 34; and vide
1 Vern. 250; 2 Ves. Jr. 380, 336, 357, 364; 3 Ves. Jr. 141, 220; 4 Ves. 13;
Com. Dig. Condition, L. 1; 1 Rop. Leg. 514; Swinb. pt. 4, s. 7, a. 4; Dane's
Ab. Index, h.t.; Toull. Dr. Civ. Fr. liv. 3, t. 3, n. 586, 595, 611; Domat,
Loix Civ. liv. 6. t. 2, s. 1; 1 Supp. to Ves. Jr. 134, 259, 317; 2 Id.
316,473; Boyle on Charities, Index, h.t.; Shelford on Mortmain, Index, h.t.;
3 Bro. C. C. 166; 2 Bro. C. C. 492; 4 Wheat. R. 1; S. C. 3 Peters, R. App.
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481; 3 Peters, R. 99; 15 Ves., 232; 2 Sto. Eq. Jur. Sec. 1169.
CZAR. A title of honor which is assumed by the emperor of all the Russias.
See Autocracy.
CZARINA. The title of the empress of Russia.
CZAROWITZ.. The title of the eldest son of the czar and czarina of Russia.
D.
DAM. A construction of wood, stone, or other materials, made across a stream
of water for the purpose of confining it; a mole.
2. The owner of a stream not navigable, may erect a dam across it, and
employ the water in any reasonable manner, either for his use or pleasure,
so as not to destroy or render useless, materially diminish, or affect the
application of the water by the proprietors below on the stream. He must not
shut the gates of his dams and detain the water unreasonably, nor let it off
in unusual quantities to the annoyance of his neighbors. 4 Dall. 211; 3
Caines, 207; 13 Mass. 420; 3 Pick, 268; 2 N. H. Rep. 532; 17 John. 306; 3
John. Ch. Rep. 282; 3 Rawle, 256; 2 Conn. Rep. 584; 5 Pick. 199; 20 John.
90; 1 Pick. 180; 4 Id. 460; 2 Binn. 475; 14 Serg. & Rawle, 71; Id. 9; 13
John. 212; 1 McCord, 580; 3 N. H. Rep. 321; 1 Halst. R. 1; 3 Kents Com. 354.
3. When one side of the stream is owned by one person and the other by
another, neither, without the consent of the other, can build a dam which
extends beyond the filum aqua, thread of the river, without committing a
trespass. Cro. Eliz. 269; 12 Mass. 211; Ang. on W. C. 14, 104, 141; vide
Lois des Bat. P. 1, c. 3, s. 1, a. 3; Poth. Traite du Contrat de Societe,
second app. 236; Hill. Ab. Index, h.t.; 7 Cowen, R. 266; 2 Watts, R. 327; 3
Rawle, R. 90; 17 Mass. R. 289; 5 Pick. R. 175; 4 Mass. R. 401. Vide
Inundation.
DAMAGE, torts. The loss caused by one person to another, or to his property,
either with the design of injuring him, with negligence and carelessness, or
by inevitable accident.
2. He who has caused the damage is bound to repair it and, if he has
done it maliciously, he may be. compelled to pay beyond the actual loss.
When damage occurs by accident, without blame to anyone, the loss is borne
by the owner of the thing injured; as, if a horse run away with his rider,
without any fault of the latter, and injure the property of another person,
the injury is the loss of the owner of the thing. When the damage happens by
the act of God, or inevitable accident, as by tempest, earthquake or other
natural cause, the loss must be borne by the owner. Vide Com. Dig. h.t.;
Sayer on Damages.
3. Pothier defines damage (dommiges et interets) to be the loss which
some one has sustained, and the gain which he has failed of making. Obl. n.
159.
DAMAGE FEASANT, torts. This is a corruption of the French words faisant
dommage, and signifies doing damage. This term is usually applied to the
injury which animals belonging to one person do upon the land of another, by
feeding there, treading down his grass, corn, or other production of the
earth. 3 Bl. Com. 6; Co. Litt. 142, 161; Com. Dig. Pleader, 3 M 26. By the
common law, a distress of animals or things damage feasant is allowed. Cow.
Inst. 230; Gilb. on Distress and Replevin, 21. It was also allowed by the
ancient customs of France. 11 Toull. 402 Repertoire de Jurisprudence,
Merlin, au mot Fourriere; 1 Fournel, Traits de Voisinage, au mot Abandon.
Vide Animals.
DAMAGED GOODS. In the language of the customs, are goods subject to duties,
which have received some injury either in the voyage home, or while bonded
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in warehouses. See Abatement, merc. law.
DAMAGES, practice. The indemnity given by law, to be recovered from a wrong
doer by the person who has sustained an injury, either in his person,
property, or relative rights, in consequence of the acts of another.
2. Damages are given either for breaches of contracts, or for tortious
acts.
3. Damages for breach of contract may be given, for example, for the
non-performance of a written or verbal agreement; or of a covenant to do or
not to do a particular thing.
4. As to the measure of damages the general rule is that the delinquent
shall answer for all the injury which results from the immediate and direct
breach of his agreement, but not from secondary and remote consequences.
5. In cases of an eviction, on covenant of seisin and warranty, the
rule seems to be to allow the consideration money, with interest and costs.
6 Watts & Serg. 527; 2 Dev. R. 30; 3 Brev. R. 458. See 7 Shepl. 260; 4 Dev.
46. But in Massachusetts, on the covenant of warranty, the measure of
damages is the value of the land at the time of eviction. 4 Kent's Com. 462,
3, and the cases there cited; 3 Mass. 523; 4 Mass. 108; 1 Bay, 19, 265; 3
Desaus. Eq. R. 247; 4 Penn. St. R. 168.
6. In estimating the measure of damages sustained in consequence of the
acts of a common carrier, it frequently becomes a question whether the value
of the goods at the place of embarkation or the port of destination is the
rule to establish the damages sustained. It has been ruled that the value at
the port of destination is the proper criterion. 12 S. & R. 186;. 8 John. R.
213; 10 John. R. 1; 14 John. R. 170; 15 John. R. 24. But contrary decisions
have taken place. 3 Caines, R. 219 4 Hayw. R. 112; and see 4 Mass. R. 115; 1
T. R. 31; 4 T. R. 582.
7. Damages for tortious acts are given for acts against the person, as
an assault and battery against the reputation, as libels and slander,
against the property, as trespass, when force is used; or for the
consequential acts of the tort-feasor, as, when a man, in consequence of
building a dam on his own premises, overflows his neighbor's land; or
against the relative rights of the party injured, as for criminal
conversation with his wife.
8. No settled rule or line of distinction can be marked out when a
possibility of damages shall be accounted too remote to entitle a party to
claim a recompense: each case must be ruled by its own circumstances. Ham.
N. P. 40; Kames on Eq. 73, 74. Vide 7 Vin. Ab. 247; Yelv. 45, a; Id. 176, a;
Bac. Ab. h.t.; 1 Lilly's Reg. 525; Domat, liv. 3, t. 5, s. 2, n. 4; Toull.
liv. 3, n. 286; 2 Saund. 107, note; 1 Rawle's Rep. 27; Coop. Just. 606; Com.
Dig. 11. t.; Bouv. Inst. Index, h.t. See, Cause; Remote.
9. Damages for torts are either compensatory or vindictive. By
compensatory damages is meant such as are given morely to recompense a party
who has sustained a loss in consequence of the acts of the defendant, and
where there are no circumstances to aggravate the act, for the purpose of
compensating the plaintiff for his loss; as, for example, Where the
defendant had caused to be seized, property of A for the debt of B, when
such property was out of A's possession, and there appeared reason to
believe it was B's. Vindictive damages are such as are given against a
defendant, who, in addition to the trespass, has been guilty of acts of
outrage and wrong which cannot well be measured by a compensation in money;
as, for example, where the defendant went to A's house, and with insult and
outrage seized upon A's property, for a debt due by B, and carried it away,
leaving A's family in distress. Sedgw. on Dam. 39; 2 Greenl. Ev. Sec. 253; 1
Gillis. 483; 12 Conn. 580; 2 M. & S. 77; 4 S. & R. 19; 5 Watts, 375; 5 Watts
& S. 524; 1 P. S. R. 190, 197.
10. In cases of loss of which have been insured from maritime dangers,
when an adjustment is made, the damages are settled by valuing the property,
not according to prime cost, but at the price at which it may be sold at the
time of settling the average. Marsh. Inst. B. 1, c. 14, s. 2, p. 621. See
Adjustment; Price.
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DAMAGES, EXCESSIVE. Such damages as are unreasonably great, and not
warranted by law.
2. The damages are excessive in the following cases: 1. When they are
greater than is demanded by the writ and declaration. 6 Call 85; 7 Wend.
330. 2. When they are greater than is authorized by the rules and principles
of law, as in the case of actions upon contracts, or for torts done to
property, the value of which may be ascertained by evidence. 4 Mass. 14; 5
Mass. 435; 6 Halst. 284.
3. But in actions for torts to the person or reputation of the
plaintiff, the damages will not be considered excessive unless they are
outrageous. 2 A. K. Marsh 365; Hard. 586; 3 Dana, 464; 2 Pick. 113; 7 Pick.
82; 9 John. 45; 10 John. 443; 4 Mass. 1; 9 Pick. 11; 2 Penn. 578.
4. When the damages are excessive, a new trial will be granted on that
ground.
DAMAGES INADEQUATE. Such as are unreasonably low, and less than is required
by law.
2. Damages are inadequate, when the plaintiff sues for a breach of
contract, and the damages given are less than the amount proved. 9 Pick. 11.
3. In actions for torts, the smallness of damages cannot be considered
by the court. 3 Bibb, 34. See 11 Mass. 150.
4. In a proper case, a new trial will be granted on the ground of
inadequate damages.
DAMAGES ON BILLS OF EXCHANGE, contracts. A penalty affixed by law to the
non-payment of a bill of exchange when it is not paid at maturity, which the
parties to it are obliged to pay to the holder.
2. The discordant and shifting regulations on this subject which have
been enacted in the several states, render it almost impossible to give a
correct view of this subject. The drawer of a bill of exchange may limit the
amount of damages by making a memorandum in the bill, that they shall be a
definite sum; as, for example, "In case of non-acceptance or non-payment,
reexchange and expenses not to exceed ___________ dollars. 1 Bouv. Inst. n.
1133. The following abstract of the laws of several of the United States,
will be acceptable to the commercial lawyer.
3. Alabama. 1. When drawn on a person in the United States. By the
Act of January 15, 1828, the damages on a protested bill of exchange drawn
on a person, either in this or any other of the United States, are ten per
cent. By the Act of December 21, 1832, the damages on such bills drawn on
any person in this state, or upon any person payable in New Orleans, and
purchased by the Bank of Alabama or its branches, are five per cent.
4.-2. Damages on protested bills drawn on on person out of the United
States are twenty per cent.
5. Arkansas. 1. It is provided by the Act of February 28, 1838, s. 7,
Ark. Rev. Stat. 150, that "every bill of exchange expressed to be for value
received, drawn or negotiated within this state, payable after date, to
order or bearer, which shall be duly presented for acceptance or payment,
and protested for non-acceptance or non-payment, shall be subject to damages
in the following cases: first, if the bill have been drawn on any person at
any place within this state, at the rate of two per centum on the principal
sum specified in the bill; second, if the bill shall be drawn on any person,
and payable in any of the states of Alabama, Louisiana, Mississippi,
Tennessee, Kentucky, Ohio, Indiana, Illinois, and Missouri, or any point on
the Ohio river, at the rate of four per centum on the principal sum in such
bill specified: third, if the bill shall have been drawn on any person, and
payable at any place within the limits of the United States, not
hereinbefore expressed, at the rate of five per centum on the principal sum
specified in the bill: fourth, if the bill shall have been drawn on any
person, and payable at any point or place beyond the limits of the United
States, at the rate of ten per centum on the sum specified in the bill.
6.-2. And by the 8th section of the same act, if any bill of exchange
expressed to be for value received, and made payable to order or bearer,
shall be drawn on any person at any place within this state, and accepted
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and protested for non-payment, there shall be allowed and paid to the
holder, by the acceptor, damages in the following cases: first, if the bill
be drawn by any person at any place within this sate, at the rate of two per
centum on the principal sum therein specified: second, if the bill be drawn
at any place without this state, but within the limits of the United States,
at the rate of six per centum on the sum therein specified: third, if the
bill be drawn on any person at any place without the limits of the United
Sates, at the rate of ten per centum on the sum therein specified. And, by
sect 9, in addition to the damages allowed in the two preceding sections to
the holder of any bill of exchange protested for non-payment or
nonacceptance, he shall be entitled to costs of protest, and interest at the
rate of ten per centum per annum, on the amount specified in the bill, from
the date of the protest until the amount of the bill shall be paid."
7. Connecticut. 1. When drawn on another place in the United States.
When drawn upon persons in the city of New York, two per cent. When in other
parts of the state of New York, or the New England states (other than this,)
New Jersey, Pennsylvania, Delaware, maryland, Virginia, or the District of
Columbia, three per cent. When on persons in North or South Carolina,
Georgia, or Ohio, five per cent. On other states, territories or districts,
in the United States, eight per cent, on the principal sum in each case,
with interest on the amount of such sum, with the damage after notice and
demand. Stat. tit. 71, Notes and Bills, 413, 414. When drawn on persons
residing in Connecticut no damages are allowed.
8.-2. When the bill is drawn on person out of the United States,
twenty per cent is said to be the amount which ought reasonably to be
allowed. Swift's Ev. 336. There is no statutory provision on the subject.
9. Delaware. If any person shall draw or endorse any bill of exchange
upon any person in Europe, or beyond seas, and the same shall be returned
back unpaid, with a legal protest, the drawer there and all others concerned
shall pay and discharge the contents of the said bill, together with twenty
per cent advance f or the damage thereof; and so proportionably for a
greater or less sum, in the sam specie as the same bill was drawn, or
current money of this government equivalent to that which was first paid to
the drawer or endorser.
10. Georgia. 1. Bills on persons in the United States. First, in the
state. No damages are allowed on protested bills of exchange drawn in the
state, on a person in the state, except bank bills, on which the damages are
ten per cent for refusal to pay in specie. 4 Laws of Geo. 75. Secondly, upon
bills drawn or negotiated in the state on persons out of the state, but
within the United States, five per cent, and interest. Act of 1823, Prince's
Dig. 454; 4 Laws of Geo. 212.
11.-2. When drawn upon a person out of the United States, ten per
cent. damages and postage, protest and necessary expenses; also the premium,
if any, on the face of the bill; but if at a discount, the discount must be
deducted. Act of 1827, Prince's Dig. 462; 4 Laws of Geo. 221.
12. Indiana. 1. When drawn by a person in the state on another person
in Indiana, no damages are allowed.
13.-2. When drawn on a person in another state, territory, or
district, five per cent. 3. When drawn on a person out of the United States,
ten percent. Rev. Code, c. 13, Feb. 17, 1838.
14. Kentucky. 1. When drawn by a person in Kentucky on a person in the
state, or in any other state, territory, or district of the United States,
no damages are allowed. See, Acts, Sessions of 1820, p. 823.
15.-2. When on a person in a foreign country, damages are given at the
rate of ten per cent. per ann. from the date of the bill until paid, but not
more than eighteen months interest to be collected. 2 Litt. 101.
16. Louisiana. The rate of damages to be allowed and paid upon the
usual protest for non-acceptance, or for non-payment of bills of exchange,
drawn or negotiated within this state in the following cases, is as follows:
on all bills of exchange drawn on or payable in foreign countries, ten
dollars upon the hundred upon the principal sum specified in such bills; on
all bills of exchange, drawn on and payable in other states in the United
States, five dollars upon the hundred upon the principal sum specified in
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such bill. Act of March 7, 1838, s. 1.
17. By the second section of the same act it is provided that such
damages shall be in lieu of interest, charge of protest, and all other
charges, incurred previous to the time of giving notice of non-acceptance or
non-payment; but the principal and damages shall bear interest thereafter.
18. By section 3, it is enacted, that if the contents of such bill be
expressed in the money of account of the United States, the amount of the
principal and of the damages herein allowed for the non-acceptance or non-
payment shall be ascertained and determined, without any reference to the
rate of exchange existing between this state and the place on which such
bill shall have been drawn, at the time of the payment, on notice of non-
acceptance or non-payment.
19. Maine. 1. When drawn payable in the United States. The damages in
addition to the interest are as follows: if for one hundred dollars or more,
and drawn, accepted, or endorsed in the state, at a place, seventy-five
miles distant from the place where drawn, one per cent.; if, for any sum
drawn, accepted, and endorsed in this state, and payable in New Hampshire,
Vermont, Connecticut, Rhode Island, or New York, three per cent; if payable
in New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina,
Georgia, or the District of Columbia, six per cent.; if payable in any other
state, nine per cent. Rev. St. tit. 10 c. 115, Sec. 110, 111.
20.-2. Out of the United States, no statutory provision. It is the
usage to allow the holder of the bill the money for which it was drawn,
reduced to the currency of the state, at par, and also the charges of
protest with American interest upon those sums from the time when the bill
should have been paid and the further sum of one-tenth of the money for
which the bill was drawn, with interest upon it from the time payment of the
dishonored bill was demanded of the drawer. But nothing has been allowed for
re-exchange, whether it is below or above par. Per Parsons, Ch. J. 6 Mass.
157, 161 see 6 Mass. 162.
21. Maryland. 1. No damages are allowed when the bill is drawn in the
state on another person in Maryland.
22.-2. When it is drawn on any "person, company, or society, or
corporation in any other of the United States," eight per cent. damages on
the amount of the bill are allowed, and an amount to purchase another bill,
at the current exchange, and interest and losses of protest.
24.-3. If the bill be drawn on a "foreign country," fifteen per cent.
damages are allowed, and the expense of purchasing a new bill as above,
besides interest and costs of protest. See Act of 1785, c. 88.
25. Michigan. 1. When a bill is drawn in the state on a person in the
state, no damages are allowed.
26.-2. When drawn or endorsed within the state and payable out of it,
within the United States, the rule is as follows: in addition to the
contents of the bill, with interest and costs, if payable within the states
of Wisconsin, Illinois, Indiana, Ohio, and New York, three per cent. on the
contents of the bill if payable within the states of Missouri, Kentucky,
Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, or the District of
Columbia, five per centum; if payable elsewhere in the United States, out of
Michigan, ten per cent. Rev. St. 156, S. 10.
27.-3. When the bill is drawn within this state, and payable out of
the United States, the party liable must pay the same at the current rate of
exchange at the time of demand of payment, and damages at the rate of five
per cent. on the contents thereof, together with interest on the said
contents, which must be computed, from the date of the protest, and are in
full of all damages and charges and expenses. Rev. Stat. 156, s. 9.
28. Mississippi. 1. When drawn on a person in the state, five per
cent. damages are allowed. How. & Hutch. 376, ch. 35, s. 20, L. 1827; How.
Rep. 3. 195.
29.-2. When drawn on a person in another state or territory, no
damages are given. Id. 3. When drawn on a person out of the United States,
ten per cent. damages are given, and all charges incidental thereto, with
lawful interest. How. & Hutch. 376, ch. 35, s. 19, L. 1837.
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30. Missouri. 1. When drawn on a person within the state, four per
cent. damages on the sum specified in the bill are given. Rev. Code, 1835,
Sec. 8, cl. 1, p. 120.
31.-2. When on another state or territory, ten per cent. Rev. Code,
1835, Sec. 8, cl. 2, p. 120. 3. When on a person out of the United States,
twenty per cent. Rev. Code, 1835, Sec. 8, cl. 3, p. 120.
32. New York. By the Revised Statutes, Laws of N. Y. sess. 42, ch. 34,
it is provided that upon bills drawn or negotiated within the state upon any
person, at any place within the six states east of New York, or in New
Jersey, Pennsylvania, Ohio, Delaware, Maryland, Virginia, or the District of
Columbia, the damages to be allowed and paid upon the usual protest for non-
acceptance or non-payment, to the holder of the bill, as purchase thereof,
or of some interest therein, for a valuable consideration, shall be three per
cent. upon the principal sum specified in the bill; and upon any person at
any place within the states of North Carolina, South Carolina, Georgia,
Kentucky, and Tennessee, five percent; and upon any person in any other
state or territory of the United States, or at any other place on, or
adjacent to, this continent, and north of the equator, or in any British or
foreign possessions in the West Indies, or elsewhere in the Western Atlantic
Ocean, or in Europe, ten per cent. The damages are to be in lieu of
interest, charges of protest, and all other charges incurred previous to,
and at the time of, giving notice of non-acceptance or non-payment. But the
holder will be entitled to demand and recover interest upon the aggregate
amount of the principal sum specified in the bill, and the damages from time
of notice of the protest for non-acceptance, or notice of a demand and
protest for non-payment. If the contents of the bill be expressed in the
money of account of the United States, the amount due thereon, and the
damages allowed for the non-payment, are to be ascertained and determined,
without reference to the rate of exchange existing between New York and the
place on which the bill is drawn. But if the contents of the bills be
expressed in the money of account or currency of any foreign. country, then
the amount due, exclusive of the damages, is to be ascertained and
determined by the rate of exchange, or the value of such foreign currency,
at the time of the demand of payment.
33. Pennsylvania. The Act of March 30, 1821, entitled an act
concerning bills of exchange, enacts, that, Sec. 1, "whenever any bill of
exchange hereafter be drawn and endorsed within this commonwealth, upon any
person or persons, or body corporate, of, or in any other state, territory,
or place, shall be returned unpaid with a legal protest, the person or
persons to whom the same shall or may be payable, shall be entitled to
recover and receive of and from the drawer or drawers, or the endorser or
endorsers of such bill of exchange, the damages hereinafter specified, over
and above the principal sum for which such bill of exchange shall have been
drawn, and the charges of protest, together with lawful interest on the
amount of such principal sum, damages and charges of protest, from the time
at which notice of said protest shall have been given, and the payment of
said principal sum and damages, and charges of protest demanded; that is to
say, if such bill shall have been drawn upon any person or persons, or body
corporate, of, or in any of the United States or territories thereof,
excepting the state of Louisiana, five per cent. upon such principal sum; if
upon any person or persons, or body corporate, of, or in Louisiana, or of,
or in any other state or place in North America, or the islands thereof,
excepting the northwest coast of America and Mexico, or of, or in any of the
West India or Bahama Islands, ten per cent. upon such principal sum; if upon
any person or persons, or body corporate, of, or in the island of Madeira,
the Canaries, the Azores, the Cape de Verde Islands, the Spanish Main, or
Mexico, fifteen per cent. upon such principal sum; if upon any person or
persons, or body corporate, of, or in any state or place in Europe, or any
of the island's thereof, twenty per cent. upon such principal sum; if upon
any person or persons, or body corporate, of, or in any other part of the
world, twenty-five per cent. upon such principal sum.
34.-2. "The damages, which, by this act, are to be recovered upon any
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bill of exchange, shall be in lieu of interest and all other charges, except
the charges of protest, to the time when notice of the protest and demand of
payment shall have been given and made, aforesaid; and the amount of such
bill and of the damages payable thereon, as specified in this act, shall be
ascertained and determined by the rate, of exchange, or value of the money
or currency mentioned in such bill, at the time of notice of protest and
demand of payment as before mentioned."
35. Tennessee. 1. On a bill drawn or endorsed within the state upon
any person or persons, or body corporate, of, or in, any other state,
territory, or place, which shall be returned unpaid, with a legal protest,
the holder shall be entitled to the damages hereinafter specified, over and
above the principal sum for which such bill of exchange shall have been
drawn, and the charge of protest, together with lawful interest on the
amount of such principal sum, damages, and charges of protest, from the time
at which notice of such protest shall have been given, and the payment of
said principal sum, damages, and charges of protest demanded; that is to
say, if such bill shall have been drawn on any person or persons, or body
corporate, of, or in any of these United States, or the territories thereof,
three per cent. upon such principal sum: if upon any other person or
persons, or body corporate, of, or in, any other state or place in North
America, bordering upon the Gulf of Mexico, or of, or in, any of the West
India Islands, fifteen per cent. upon such principal sum; if upon any person
or persons, or body corporate, of, or in, any other part of the world,
twenty per cent. upon such principal sum.
36.-2. The damages which, by this act, are to be recovered upon any
bill of exchange, shall be in lieu of interest and all other charges, except
charges of protest, to the time when notice of the protest and demand of
payment shall have been given and made as aforesaid. Carr. & Nich. Comp.
125; Act of 1827, c. 14.
DAMAGES, DOUBLE or TREBLE, practice. In cases where a statute gives a party
double or treble damages, the jury are to find single damages, and the court
to enhance them, according to the statute Bro. Ab. Damages, pl. 70; 2 Inst.
416; 1 Wils. 126; 1 Mass. 155. In Sayer on Damages, p. 244, it is said, the
jury may assess the statute damages and it would seem from some of the
modern cases, that either the jury or the court may assess. Say. R. 214; 1
Gallis. 29.
DAMAGES, GENERAL, torts. General damages are such as the law implies to have
accrued from the act of a tort-feasor. To call a man a thief, or commit an
assault and battery upon his person, are examples of this kind. In the first
case the law presumes that calling a man a thief must be injurious to him,
with showing that it is so. Sir W. Jones, 196; 1 Saund. 243, b. n. 5; and in
the latter case, the law implies that his person has been more or less
deteriorated, and that the injured party is not required to specify what
injury he has sustained, nor to prove it. Ham. N. P. 40; 1 Chit. Pl. 386; 2
L.R. 76; 4 Bouv. Inst. n. 3584.
DAMAGES, LAYING, pleading. In personal and mixed actions, (but not in penal
actions, for obvious reason,) the declaration must allege, in conclusion,
that the injury is to the damage of the plaintiff; and must specify the
amount of damages. Com. Dig. Pleader, C 84; 10 Rep. 116, b.
2. In personal actions there is a distinction between actions that
sound in damages, and those that do not; but in either of these cases, it is
equally the practice to lay damages. There is, however, this difference:
that, in the former case, damages are the main object of the suit, and are,
therefore, always laid high enough to cover the whole demand; but in the
latter, the liquidated debt, or the chattel demanded, being the main object,
damages are claimed in respect of the detention only, of such debt or
chattel; and are, therefore, usually laid at a small sum. The plaintiff
cannot recover greater damages than he has laid in the conclusion of his
declaration. Com. Dig. Pleader, C 84; 10 Rep. 117, a, b; Vin. Ab. Damages,
R.
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3. In real actions, no damages are to be laid, because, in these, the
demand is specially for the land withheld, and damages are in no degree the
object of the suit. Steph. Pl. 426; 1 Chit. Pl. 397 to 400.
DAMAGES, LIQUIDATED, contracts. When the parties to a contract stipulate for
the payment of a certain sum, as a satisfaction fixed and agreed upon by
them, for the not doing of certain things particularly mentioned in the
agreement, the sum so fixed upon is called liquidated damages. (q.v.) It
differ from a penalty, because the latter is a forfeiture from which the
defaulting party can be relieved. An agreement for liquidated damages can
only be when there is an engagement for the performance of certain acts, the
not doing of which would be an injury to one of the parties; or to guard
against the performance of acts which, if done, would also be injurious. In
such cases an estimate of the damages may be made by a jury, or by a
previous agreement between the parties, who may foresee the consequences of
a breach of the engagement, and stipulate accordingly. 1 H. Bl. 232; and
vide 2 Bos. & Pul. 335, 350-355; 2 Bro. P. C. 431; 4 Burr, 2225; 2 T. R. 32.
The civil law appears to agree with these principles. Inst. 3, 16, 7; Toull.
liv. 3, n. 809; Civil Code of Louis. art. 1928, n. 5; Code Civil, 1152,
1153.
2. It is to be observed, that the sum fixed upon will be considered as
liquidated damages, or a penalty, according to the intent of the parties,
and the more use of the words "penalty," &c "forfeiture," or "liquidated
damages," will not be regarded is at all decisive of the question, if the
instrument discloses, upon the whole, a different intent. 2 Story, Eq. Sec.
1318; 6 B.& C. 224; 6 Bing. 141; 6 Iredell, 186; 3 Shepl. 273; 2 Ala. 425;
8 Misso. 467.
3. Rules have been adopted to ascertain whether such sum so agreed upon
shall be considered a penalty or liquidated damages, which will be here
enumerated by considering, first, those cases where it has been considered
as a penalty and, secondly, where it has been considered as liquidated
damages.
4.-1. It has been treated as penalty, 1st. where the parties in the
agreement have expressly declared the sum intended as a forfeiture or a
penalty, and no other intent can be collected from the instrument. 2 B. & P,
340, 350, 630; 1 McMullan, 106; 2 Ala. 425; 5 Metc. 61; 1 H. Bl. 227; 1
Campb. 78; 7 Wheat. 14; 1 Pick. 451; 4 Pick. 179; 3 Johns. Cas. 297. 2d.
Where it is doubtful whether it was intended as a penalty or not, and a
certain debt or damages, less than the penalty, is made payable on the face
of the instrument. 3 C. & P. 240; 6 Humph. 186. 3d. Where the agreement was
made, evidently, for the attainment of another object, to which the sum
specified is wholly collateral. 11 Mass. 76; 15 Mass. 488; 1 Bro. C. C. 418.
4th. Where the agreement contains several matters, of different degrees of
importance, and yet the sum named is payable for the breach of any, even the
least. 6 Bing. 141; 5 Bing. N. C. 390; 7 Scott, 364; sed vide, 7 John. 72;
15 John. 200. 5th. Where the contract is not under seal, and the damages are
capable of being certainly known and estimated. 2 B. & Al. 704; 6 B. & C.
216; 1 M. & Malk. 41; 4 Dall. 150; 5 Cowen, 144.
5.-2. The sum agreed upon has been considered as liquidated damages,
1st. Where the damages are uncertain, and are not capable of being
ascertained by any satisfactory and known rule. 2 T. R. 32; 1 Alc. & Nap.
389; 2 Burr, 2225; 10 Ves. 429; 3 M. & W. 545; 8 Mass. 223; 3 C. & P. 240; 7
Cowen 307; 4 Wend. 468. 2d. Where, from the tenor of the agreement, or from
the nature of the case, it appears that the parties have ascertained the
amount of damages by fair calculation and adjustment. 2 Story, Eq. Juris.
Sec. 1318; 10 Mass. 459; 7 John. 72; 15 John. 200; 1 Bing. 302; 7 Conn. 291;
13 Wend. 507; 2 Greenl. Ev. Sec. 259; 11 N. H. Rep. 234; 6 Blackf. 206; 26
Wend. 630; 17 Wend. 447; 22 Wend. 201; 7 Metc. 583; 2 Ala. 425; 2 Shepl.
250.
Vide, generally, 7 Vin. Ab. 247; 16 Vin. Ab. 58; 2 W. Bl. Rep. 1190;.
Coop. Just. 606; 1 Chit. Pr. 872; 2 Atk. 194; Finch. 117; Prec. in Ch. 102;
2 Bro. P. C. 436; Fonbl. 151, 2, note; Chit. Contr. 836; 11 N. Hamp. Rep.
234.
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DAMAGES, SPECIAL, torts. Special damages are such as are in fact sustained,
and are not implied by law; these are either superadded to general damages,
arising from an act injurious in itself, as when some particular loss
arises. from the uttering of slanderous words, actionable in themselves, or
are such as arise from an act indifferent and not actionable in itself, but
injurious only in its consequences, as when the words become actionable only
by reason of special damage ensuing. To constitute special damage the legal
and natural consequence must arise from the tort, and not be a mere wrongful
act of a third person, or a remote consequence. 1 Camp. 58; Ham. N. P. 40; 1
Chit. Pl. 385, 6.
DAMAGES, SPECIAL, pleading. As distinguished from the gist of the action,
signify that special damage which is stated to result from the gist; as, if
a plaintiff in an action of trespass for breaking his close, entering his
house, and tossing his goods about, were to state that by means of the
damage done to his house, he was obliged to seek lodging elsewhere.
2. Sometimes the special damage is said to constitute the gist of the
action itself; for example, in an action wherein the plaintiff declares for
slanderous words, which of themselves are not a sufficient ground or
foundation for the suit, if any particular damage result to the plaintiff
from the speaking of them, that damage is properly said to be the gist of
the action.
3. But whether special damage be the gist of the action, or only
collateral to it, it must be particularly stated in the declaration, as the
plaintiff will not otherwise be permitted to go into evidence of it at the
trial, because the defendant cannot also be prepared to answer it. Willes,
23. See Gist.
DAMAGES, UNLIQUIDATED. The unascertained amount which is due to a person by
another for an injury to the person, property, or relative rights of the
party injured. These damages, being unknown, cannot be set off against the
claim which the tort feasor has against the party injured. 2 Dall. 237; S.
C. 1 Yeates, 571; 10 Serg. & Rawle 14; 5 Serg. & Rawle 122.
DAMNIFICATION. That which causes a loss or damage to a society, or to one
who has indemnified another. For example, when a society has entered into an
obligation to pay the debt of the principal, and the principal has become
bound in a bond to indemnify the surety, the latter has suffered a
damnification the moment he becomes liable to be sued for the debt of the
principal - and it has been held in an action brought by the surety, upon a
bond of indemnity, that the terror of suit, so that the surety dare not go
about his business, is a damnification. Ow. 19; 2 Chit. R. 487; 1 Saund.
116; 8 East, 593; Cary, 26.
2. A judgment fairly obtained against a party for a cause against which
another person is bound to indemnify him, with timely notice to that person
of the bringing of the action, is admissible as evidence in an action
brought against the guarantor on the indemnity. 7 Cranch, 300, 322. See F.
N. B. Warrantia Chartae; Lib. Int. Index, Warrantia Chartae; 2 S. & R. 12,
13.
DAMNIFY. To cause damage, injury or loss.
DAMNOSA HAEREDITAS. A name given by Lord Kenyon to that species of property
of a bankrupt, which, so far from being valuable, would be a charge to the
creditors for example, a term of years, where the rent would exceed the
revenue.
2. The assignees are not bound to take such property, but they must
make their election, and, having once entered into possession, they cannot
afterwards abandon the property. 7 East, R. 342; 3 Campb. 340.
DAMNUM ABSQUE INJURIA. A loss or damage without injury.
2. There are cases when the act of one man may cause a damage or loss
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to another, and for which the latter has no remedy; he is then said to have
received damnum absque injuria; as, for example, if a man should set up a
school in the neighborhood of another school, and, by that means, deprive
the former of its patronage; or if a man should build a mill along side of
another, and consequently reduce his custom. 9 Pick. 59, 528.
3. Another instance may be given of the case where a man using proper
care and diligence, while excavating for a foundation, injures the adjoining
house, owing to the unsuitable materials used in such house; here the injury
is damnum absque injuria.
4. When a man slanders another by publishing the truth, the person
slandered is said to have sustained loss without injury. Bac. Ab. Actions on
the Case, C Dane's Ab. Index, h.t.
DAYS OF THE WEEK. These are Sunday, Monday, Tuesday, Wednesday, Thursday,
Friday, Saturday. See Week.
2. The court will take judicial notice of the days of the week, for
example, when a writ of inquiry was stated in the pleadings to have been
executed on the fifteenth of June, and, upon an examination, it was found to
be Sunday, the proceeding was held to be defective. Forteso. 373; S. C. Str.
387.
DE. A preposition used in many Latin phrases as, de bone esse, de bonis
non.
DE ARBITRATIONE FACTA, WRIT. In the ancient English law, when an action was
brought for the same cause of action which had been before settled by
arbitration, this writ was brought. Wats. on Arb. 256.
DE DOMO REPARANDA. The name of an ancient common law writ, by which one
tenant in common might compel his co-tenant to concur in the expense of
repairing the property held in common. 8 B. & C. 269; 1 Tho. Co. Litt. 216,
note 17, and p. 787.
DE HOMINE REPLEGIANDO. The name of a writ which is used to replevy a man out
of prison, or out of the custody of a private person. See Homine
replegiando; Writ de homine replegiando.
D.E NOVO. Anew. afresh. When a judgment upon an issue in part is reversed on
error, for some mistake made by the court, in the course of the trial, a
venire de novo is awarded in order that the case may again be submitted to
the jury.
DE ODIO ET ATIA. These words signify "from hatred and ill will." When a
person was committed on a charge of a crime, from such a motive, he could
sue the writ de otio et atia, and procure his liberty on giving bail. The
object is now obtained by a writ of habeas corpus. Vide Writ de odio et
atia.
DE QUOTA LITIS. The name of a part or contract, in the civil law, by which
one who has a claim difficult to recover, agrees with another to give a part
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for the purpose of obtaining his services to recover the rest. 1 Duv. n.
201.
2. Whenever such an agreement amounts to champerty, it is void by law.
5 Monr. 416; 5 John. Ch. 44.
3. Attorneys cannot lawfully make a bargain with their clients to
receive for their compensation, a part of the thing sued for; in New York, 2
Caines, 147; Ohio, 1 Ham. 132; Alabama, 755; and some other states - but in
some of the states such contracts are not unlawful.
DE REPARATIONE FACIENDA. The name of a writ which lies by one tenant in
common against the other, to cause him to aid in repairing the common
property. 8 B. & C. 269.
DE RETORNO HABENDO The name of a writ issued after a judgment has been given
in replevin, that the defendant should have a return of the goods replevied.
See 3 Bouv. Inst. n. 3376.
DE SON TORT. Of his own wrong. This term is usually applied to a person who,
having no right to meddle with the affairs or estate of a deceased person,
yet undertakes to do. so, by acting as executor of the deceased. Vide
Executor de son tort.
DE SON TORT DEMESNE, Of his own wrong, pleading. The name of a replication
in an action for a wrong or injury. When the defendant pleads a matter
merely in excuse of an injury to the person or reputation of another, the
plaintiff may reply de son tort demesne sans tiel cause; that it was the
defendant's own wrong without such cause. Vide the articles, De Injuria, and
Without, and also 8 Co. 69 a; Bro. h.t.; Com. Dig. Pleader, F 18.
DE UNA PARTE. A deed de una parte, is one where only one party grants,
gives, or binds himself to do.a thing to another. It differs from a deed
inter partes. (q.v.) 2 Bouv. Inst. n. 2001.
DEACON, Eccl. law. A minister or servant in the church whose office, in some
churches, is to assist the priest in divine service, and the distribution of
the sacrament.
DEAD FREIGHT, contracts. When the charterer of a vessel has shipped part of
the goods on board, and is not ready to ship the remainder, the master,
unless restrained by his special contract, may take other goods on board,
and the amount which is not supplied, required to complete the cargo, is
called dead freight.
2. The dead freight is to be calculated according to the actual
capacity of the vessel. 3 Chit. Com. Law; 399 Stark. 450.
DEAD MAN'S PART, English law. By the custom of London, when a deceased
freeman of the city left a widow and children, after deducting what was
called the widow's chamber, (q.v.) his personal property was divided into
three parts; one of which belonged to the widow, another tot he children,
and the third to the administrator. When there was only a widow, or only
children, in either case they respectively took one moiety, and the
administrator the other; when there was neither widow nor child, the
administrator took the whole for his own use and this portion was called the
"dead man's part." By statute of 1 Jac. 2, c. 17, this was changed, and the
dead man's part is declared to be subject to the statute of distribution. 2
Bl. Com. 518. See Bac. Ab. Customs of London, D 4.
DEAD LETTERS. Those which remain in the post-office, uncalled for. By the
Act of March 8, 1825, 3 Story. L. U. S. 1993, it is enacted, by Sec. 26,
"That the postmasters shall, respectively, publish, at the expiration of
every three months, or oftener, when the postmaster general shall so direct,
in one of the newspapers published at, or nearest, the place of his
residence, for three successive weeks, a list of all the letters remaining
in their respective offices; or instead thereof, shall make out a number of
such lists, and cause them to be posted at such public places, in their
vicinity, as shall appear to them best adapted for the information of the
parties concerned; and, at the expiration of the next three months, shall
send such of the said letters as then remain on hand, as dead letters, to
the general post office where the same shall be opened and inspected; and if
any valuable papers, or matters of consequence, shall be found therein, it
shall be the duty of the postmaster general to return such letter to the
writer thereof, or cause a descriptive list thereof to be inserted in one of
the newspapers published at the place most convenient to the supposed
residence of the owner, if within the United States; and such letter, and
the contents, shall be preserved, to be delivered to the person to whom the
same shall be addressed, upon payment of the postage, and the expense of
publication. And if such letter contain money, the postmaster general may
appropriate it to the use of the department, keeping an account thereof, and
the amount shall be paid by the department to the claimant as soon as he
shall be found."
3. And by the Act of July 2, 1836, 4 Sharsaw. Cont. of Story, L. U. S.
2474, it is enacted by Sec. 35 that advertisements of letters remaining in
the post-offices, may, under the direction of the postmaster general, be
made in more than one newspaper: provided, that the whole cost of
advertising shall not exceed four cents for each letter.
DEAD-PLEDGE. A mortgage of lands or goods - mortuum vadium.
DEAF AND DUMB. No definition is requisite, as the words are sufficiently
known. A person deaf and dumb is doli capax but with such persons who have
not been educated, and who cannot communicate, their ideas in writing, a
difficulty sometimes arises on the trial.
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2. A case occurred of a woman, deaf and dumb, who was charged with a
crime. She was brought to the bar, and the indictment was then read to her,
and the question, in the usual form, was put, guilty or not guilty ? The
counsel for the prisoner then rose, and stated that he could not allow his
client to plead to the indictment, until it was explained to her that she
was at liberty to plead guilty or not guilty. This attempted to be done, but
was found impossible, and she was discharged from the bar "simpliciter."
3. A person, deaf and dumb, may be examined as a witness, provided he
can be sworn, that is, if he is capable of understanding the terms of the
oath, and assents to it and if, after he is sworn, he can convey his ideas,
with or without an interpreter, to the court and jury. Phil., Ev. 14.
DEAF, DUMB, AND BLIND. A man born deaf, dumb, and blind, is considered an
idiot. (q.v.) 1 Bl. Com. 304; F. N. B. 233; 2 Bouv. Inst. n. 2111.
DEALINGS. Traffic, trade; the transaction of business between two or more
persons.
2. The English statute 6 Geo. IV. c. 16, s. 81, declares all dealings
with a bankrupt, within a certain time immediately before his bankruptcy, to
be void. It has been held, under this statute, that payments were included
under the term "dealings." M. & M. 137; 3 Car. & P. 85; S. C. 14 Eng. C. L.
R. 219.
DEAN, eccl. law. An ecclesiastical officer, who derives his name from the
fact that he presides over ten canons, or, prebondaries, at least. There are
several kinds of deans, namely: 1. Deans of chapters. 2. Deans of peculiars.
3. Rural deans. 4. Deans in the colleges. 5. Honorary deans. 6. Deans of
provinces.
DEBT, contracts. A sum of money due by certain and express agreement. 3 Bl.
Com. 154. In a less technical sense, as in the "act to regulate arbitrations
and proceedings in courts of justice" of Pennsylvania, passed the 21st of
March, 1806, s. 5, it means an claim for money. In a still more enlarged
sense, it denotes any kind of a just demand; as, the debts of a bankrupt. 4
S. & R. 506.
2. Debts arise or are proved by matter of record, as judgment debts; by
bonds or specialties; and by simple contracts, where the quantity is fixed
and specific, and does not depend upon any future valuation to settle it. 3
Bl. Com. 154; 2 Hill. R. 220.
3. According to the civilians, debts are divided into active and
passive. By the former is meant what is due to us, by the latter, what we
owe. By liquid debt, they understand one, the payment of which may be
immediately enforced, and not one which is due at a future time, or is
subject to a condition; by hypothecary debt is meant, one which is a lien
over an estate and a doubtful debt, is one the payment of which is
uncertain. Clef des Lois Rom. h.t.
4. Debts are discharged in various ways, but principally by payment.
See Accord and Satisfaction; Bankruptcy; Confusion Compensation; Delegation;
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Defeasance; Discharge of a contract; Extinction; Extinguishment; Former
recovery; Lapse of time; Novation; Payment; Release; Rescission; Set off.
5. In payment of debts, some are to be paid before others, in cases of
insolvent estates first, in consequence of the character of the creditor, as
debts due to the United States are generally to be first paid; and secondly,
in consequence of the nature of the debt, as funeral expenses and servants'
wages, which are generally paid in preference to other debts. See
Preference; Privilege; Priority.
DEBT, remedies. The name of an action used for the recovery of a debt eo
nomine and in numero though damages are generally awarded for the detention
of the debt; these are, however, in most instances, merely nominal. 1 H. Bl.
550; Bull. N. P. 167 Cowp. 588.
2. The subject will be considered with reference, 1. To the kind of
claim or obligation on which this action may be maintained. 2. The form of
the declaration. 3. The plea. 4. The judgment.
3.-1. Debt is a more extensive remedy for the recovery of money than
assumpsit or covenant, for it lies to recover money due upon legal
liabilities, as, for money lent, paid, had and received, due on an account
stated; Com. Dig. Dett, A; for work and labor, or for the price of goods,
and a quantum valebant thereon; Com. Dig. Dett, B Holt, 206; or upon simple
contracts, express or implied, whether verbal or written, or upon contracts
under seal, or of record, or by a common informer, whenever the demand for a
sum is certain, or is capable of being reduced to certainty. Bull. N. P.
167. It also lies to recover money due on, any specialty or contract under
seal to pay money. Str. 1089; Com. Dig. Dett, A 4; 1 T. R. 40. This action
lies on a record, or upon a judgment of a court of record; Gilb. Debt, 891;
Salk. 109; 17 S. & R. 1; or upon a foreign judgment. 3 Shepl. 167; 3 Brev.
395. Debt is a frequent remedy on statutes, either at the suit of the party
grieved, or of a common informer. Com. Dig. Action on Statute, E; Bac. Ab.
Debt, A. See, generally, Bouv. Inst. Index, h.t.; Com. Dig. h.t.; Dane's
Ab. h.t.. Vin. Ab. h.t.; Chit. Pl. 100 to 109; Selw. N. P. 553 to 682;
Leigh's N. P. Index, h.t. Debt also lies, in the detinet, for goods; which
action differs from detinue, because it is not essential in this action, as
in detinue, that the property in any specific goods should be vested in the
plaintiff, at the time the action is brought; Dy. 24 b; and debt in the
debet and detinet may be maintained on an instrument by which the defendant
is bound to pay a sum of money lent, which might have been discharged, on or
before the day of payment, in articles of merchandise. 4 Yerg. R. 171; see,
Com. Dig. Dett, A 5; Bac. Ab. Debt, F; 3 Wood. 103, 4; 1 Dall. R. 458.
4.-2. When the action is on a simple contract, the declaration must
show the consideration of the contract, precisely as in assumpsit; and it
should state either a legal liability or an express agreement, though not a
promise to pay the debt. 2 T. R. 28, 30. When the action is founded on a
specialty or record, no consideration need be shown, unless the performance
of the consideration constitutes a condition precedent, when performance of
such consideration must be averred. When the action is founded on a deed, it
must be declared upon, except in the case of debt for rent. 1 New R. 104.
5.-3. The plea to an action of debt is either general or special. 1.
The plea of general issue to debt on simple contracts, or on statutes, or
when the deed is only matter of inducement, is nil debet. See Nil debet. In
general, when the action is on a specialty, the plea denying the existence
of the contract is non est factum; 2 Ld. Raym. 1500; to debt on record, nul
tiel record. 16 John. 55. Other matters must, in general, be pleaded
specially.
6.-4. For the form of the judgment, see Judgment in debt. Vide
Remedy.
DEBTEE. One to whom a debt is due a creditor, as, debtee executor. 3 Bl.
Com. 18.
DEBTOR, contracts. One who owes a debt; he who may be constrained to pay
what he owes.
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2. A debtor is bound to pay his debt personally, and all the estate he
possesses or may acquire, is also liable for his debt.
3. Debtors are joint or several; joint, when they all equally owe the
debt in solido; in this case if a suit should be necessary to recover the
debt, all the debtors must be sued together or, when some are dead, the
survivors must be sued, but each is bound for the whole debt, having a right
to contribution from the others; they are several, when each promises
severally to pay the whole debt; and obligations are generally binding on
both or all debtors jointly and severally. When they are severally bound
each may be sued separately, and on the payment of debt by one, the others
will be bound to contribution, where all had participated in the money or
property, which was the cause of the debt.
4. Debtors are also principal and surety; the principal debtor is bound
as between him and his surety to pay the whole debt. and if the surety pay
it, he will be entitled to recover against the principal. Vide Bouv. Inst.
Index, h.t.; Vin. Ab. Creditor and Debtor; Id. Debt; 8 Com. Dig. 288; Dig.
50, 16, 108 Id. 50, 16, 178, 3; Toull. liv. 2, n. 250.
DECIMATION. The punishment of every tenth soldier by lot, was, among the
Romans, called decimation.
DECIME. A French coin, of the value of a tenth part of a franc, or nearly
two cents.
DECISION, practice. A judgment given by a competent tribunal. The French
lawyers call the opinions which they give on questions propounded to them,
decisions. Vide Inst. 1, 2, 8 Dig. 1, 2, 2.
DECLARANT. One who makes a declaration. Vide Declarationis.
DECLARATION, pleading. A declaration is a specification, in a methodical and
logical form, of the circumstances which constitute the plaintiff's cause of
action. 1 Chit. Pl. 248; Co. Litt. 17, a, 303, a; Bac. Abr. Pleas, B; Com.
Dig. Pleader, C 7; Lawes on Pl. 35; Steph Pl. 36; 6 Serg. & Rawle, 28. In
real actions, it is most properly called the count; in a personal one, the
declaration. Steph. Pl. 36 Doct. Pl. 83; Lawes, Plead. 33; see P. N. B. 16,
a, 60, d. The latter, however, is now the general term; being that commonly
used when referring to real and personal actions without distinction. 3
Bouv. Inst. n. 2815.
2. The declaration in an action at law answers to the bill in chancery,
the libel of the civilians, and the allegation of the ecclesiastical courts.
3. It may be considered with reference, 1st. To those general
requisites or qualities which govern the whole declaration; and 2d. To its
form, particular parts, and requisites.
4.-1. The general requisites or qualities of a declaration are
first, that it correspond with the process. But, according to the present
practice of the courts, oyer of the writ cannot be craved; and a variance
between the writ and declaration cannot be pleaded in abatement. 1 Saund.
318; a.
5. Secondly. The second general requisite of a declaration is, that
it contain a statement of all the facts necessary in point of law, to
sustain the action, and no more. Co. Litt. 303, a; Plowd. 84, 122. See 2
Mass. 863; Cowp. 682; 6 East, R. 422 5 T. R. 623; Vin. Ab. Declarations.
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6. Thirdly. These circumstances must be stated with certainty and
truth. The certainty necessary in a declaration is, to a certain intent in
general, which should pervade the whole declaration, and is particularly
required in setting forth, 1st. The parties; it must be stated with
certainty who are the parties to the suit, and therefore a declaration by or
against "C D and Company," not being a corporation, is insufficient. See
Com. Dig. Pleader, C I 8 1 Camp. R. 446 I T. R. 508; 3 Caines, R. 170. 2d.
The time; in personal actions the declaration must, in general, state a time
when every material or traversable fact happened; and when a venue is
necessary, time must also, be mentioned. 5 T. R. 620; Com. Dig. Plead. C 19;
Plowd. 24; 14 East, R. 390.; The precise time, however, is not material; 2
Dall. 346; 3 Johns. R. 43; 13 Johns. R. 253; unless it constitutes a
material part of the contract declared upon, or where the date, &c., of a
written contract or record, is averred; 4 T. R. 590 10 Mod. 313 2 Camp. R.
307, 8, n.; or, in ejectment, in which the demise must be stated to have
been made after the title of the lessor of the plaintiff, and his right of
entry, accrued. 2 East, R. 257; 1 Johns. Cas. 283. 3d. The Place. See Venue.
4th. Other circumstances necessary to maintain the action.
7.-2. The parts and particular requisites of a declaration are,
first, the title of the court and term. See 1 Chit. Pl. 261, et seq.
8. Secondly. The venue. Immediately after the title of the
declaration follows the statement in the margin of the venue, or county in
which the facts are alleged to have occurred, and in which the cause is
tried. See Venue.
9. Thirdly. The commencement. What is termed the commencement of the
declaration follows the venue in the margin, and precedes the more
circumstantial statement of the cause of action. It contains a statement,
1st. Of the names of the parties to the suit, and if they sue or be sued in
another right, or in a political capacity, (as executors, assignees, qui
lam, &c.) of the character or right in respect of which they are parties to
the suit. 2d. Of the mode in which the defendant has been brought into
court; and, 3d. A brief recital of the form of action to be proceeded in. 1
Saund. 318, Id. 111, 112; 6 T. R. 130.
10. Fourthly. The statement of the cause (if action, in which all the
requisites of certainty before mentioned must be observed, necessarily
varies, according to the circumstances of each particular case, and the form
of action, whether in assumpsit, debt, covenant, detinue, case, trover,
replevin or trespass.
11. Fifthly. The several counts. A declaration may consist of as many
counts as the case requires, and the jury may assess entire or distinct
damages on. all the counts; 3 Wils. R. 185; 2 Bay, R. 206; and it is usual,
particularly in actions of assumpsit, debt on simple contract, and actions
on the case, to set forth the plaintiff's cause of action in various shapes
in different counts, so that if the plaintiff fail in proof of one count, he
may succeed in another. 3 Bl. Com. 295.
12. Sixthly. The conclusion. In personal and mixed actions the
declaration should conclude to the damage of the plaintiff; Com. Dig.
Pleader, C 84; 10 Co. 116, b. 117, a.; unless in scire facias and in penal
actions at the suit of a common informer.
13. Seventhly. The profert and pledges. In an action at the suit of an
executor or administrator, immediately after the conclusion to the damages,
&c., and before the pledges, a profert of the letters testamentary or
letters of administration should be made. Bac. Abr. Executor, C; Dougl. 6,
in notes. At the end of the declaration, it is usual to add the plaintiff is
common pledges to prosecute, John Doe and Richard Roe.
14. A declaration may be general or special; for example, in debt or
bond, a declaration counting on the penal part only, is general; when it
sets out both the penalty and the condition, and assigns the breach, it is
special. Gould on Pl. c. 4, Sec. 50. See, generally, Bouv. Inst. Index, h.t.
1 Chit. Pl. 248 to 402; Lawes, Pl. Index) h.t.; Arch. Civ. Pl. index, h.t.;
Steph. Pl. h.t.; Grab. Pr. h.t.; Com. Dig. Pleader, h.t.; Dane's Ab. h.t.;
United States Dig. Pleadings ii.
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DECLARATION OF INDEPENDENCE. This is a state paper issued by the congress of
the United States of America, in the name and by the authority of the
people, on the fourth day of July, 17 76, wherein are set forth:
2.-1. Certain natural and unalienable rights of man; the uses and
purposes of governments the right of the people to institute or to abolish
them; the sufferings of the colonies, and their right to withdraw from the
tyranny of the king of Great Britain.
3.-2. The various acts of tyranny of the British Icing.
4.-3. The petitions for redress of these injuries, and the refusal.
to redress them; the recital of an appeal to the people of "Great Britain,
and of their being deaf to the voice of justice and consanguinity.
5.-4. An appeal to the Supreme Judge of the world for the rectitude
of the intentions of the representatives.
6.-5. A declaration that the United Colonies are, and of right ought
to be, free and independent states; that they are absolved from all
allegiance to the British crown, and that all political connexion between
them and the state of Great Britain, is and ought to be dissolved.
7.-6. A pledge by the representatives to each other, of their lives,
their fortunes, and their sacred honor.
8. The effect of this declaration was the establishment of the
government of the United States as free and independent) and thenceforth the
people of Great Britain have been held, as the rest of mankind, enemies in
war, in peace friends.
DECLARATION OF INTENTION. The act of an alien, who goes before a court of
record, and in a forma manner declares that it is, bona fide, his intention
to become a citizen of the United States, and to renounce forever all
allegiance and fidelity to any foreign prince, potentate, state, or
sovereignty, whereof he may at the time be a citizen or subject. Act of
Congress of April 14, 18O2, s. 1.
2. This declaration must, in usual cases, be made at least three years
before his admission. Id. But there are numerous exceptions to this rule.
See Naturalization.
DECLARATION OF TRUST. The act by which an individual acknowledges that a
property, the title of which he holds, does in fact belong to another, for
whose use he holds the same. The instrument in which the acknowledgment is
made, is also called a declaration of trust; but such a declaration is not
always in writing, though it is highly proper it should be so. Will. on
Trust, 49, note y; Sudg. on Pow. 200. See Merl. Rep. Declaration au profit
d'un tiers.
DECLARATION OF WAR. An act of the national legislature, in which a state of
war is declared to exist between the United States and some other nation.
2. This power is vested in congress by the constitution, art. 1, s. 8.
There is no form or ceremony necessary, except the passage of the act. A
manifesto, stating the causes of the war, is usually published, but war
exists as soon as the act takes effect. It was formerly usual to precede
hostilities by a public declaration communicated to the enemy, and to send a
herald to demand satisfaction. Potter, Antiquities of Greece, b. 3, c. 7;
Dig. 49, 15, 24. But that is not the practice of modern times. In some
countries, as England, the, power of declaring war is vested in the king,
but he has no power to raise men or money to carry it on, which renders the
right almost nugatory.
4. The public proclamation of the government of a state, by which it
declares itself to be at war with a foreign power, which is named, and which
forbids all and every one to aid or assist the common enemy, is also called
a declaration of war.
DECLARATIONS, evidence. The statements made by the parties to a transaction,
in relation to the same.
2. These declarations when proved are received in evidence, for the
purpose of illustrating the peculiar character and circumstances of the
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transaction. Declarations are admitted to be proved in a variety of cases.
3.-1. In cases of rape, the fact that the woman made declarations in
relation to it, soon after the assault took place, is evidence; but the
particulars of what she said cannot be heard. 2 Stark; N. P. C. 242; S. C. 3
E. C. L. R. 344. But it is to be observed that these declarations can be
used only to corroborate her testimony, and cannot be received as
independent evidence; where, therefore, the prosecutrix, died, these
declarations could not be received. 9 C. & P. 420; S. C. 38 Eng. C. L. R.
173; 9 C. & P. 471; S. C. 38 E. C. L. It. 188.
4.-2. When more than one person is concerned in the commission of a
crime, as in cases of riots, conspiracies, and the like, the declarations of
either of the parties, made while acting in the common design, are evidence
against the whole; but the declarations of one of the rioters or
conspirators, made after the accomplishment of their object, and when they
no longer acted together, are evidence only against the party making them. 2
Stark. Ev. 235 2 Russ. on Cr. 572 Rosc. Cr. Ev. 324; 1 Breese, Rep. 269.
5. In. civil cases the declarations of an agent, made while acting for
his principal, are admitted in evidence as explanatory of his acts; but his
confessions after he has ceased to, act, are not evidence. 4. S. R. 321.
6.-3. To prove a pedigree, the declarations of a deceased member of
the family are admissible. Vide Hearsay, and the cases there cited.
7.-4. The dying declarations of a man who has received a mortal
injury, as to the fact itself, and the party by whom it was committed, are
good evidence; but the party making them must be under a full consciousness
of approaching death. The declarations of a boy between ten and eleven years
of age, made under a consciousness of approaching death, were received in
evidence on the trial of a person for killing him, as being declarations in
articulo mortis. 9 C. & P. 395; S. C. 38 E. C. L. R. 168. Evidence of such
declarations is admissible only when the death of the deceased is the
subject of the charge, and the circumstances of the death the subject of the
dying declarations. 2 B. & C. 605; S. C. 9 E. C. L. R. 196; 2 B. & C. 608;
S. C. 9 E. C. L. R. 198; 1 John. Rep. 159; 15 John. R. 286; 7 John. R. 95
But see contra, 2 Car. Law Repos. 102. Vide Death bed, or Dying
declarations. 3 Bouv. Inst. n. 3071.
DECLARATORY. Something which explains, or ascertains what before was
uncertain or doubtful; as a declaratory statute, which is one passed to put
an end to a doubt as to what the law is, and which declares what it is, and
what it has been. 1 Bl. Com. 86.
TO DECLARE. To make known or publish. By tho constitution of the United
States, congress have power to declare war. In this sense the word, declare,
signifies, not merely to make it known that war exists, but also to make war
and to carry it on. 4 Dall. 37; 1 Story, Const. Sec. 428; Rawle on the
Const. 109. In pleading, to declare, is the act of filing a declaration.
DECOCTION, med. jurisp. The operation of boiling certain ingredients in a
fluid, for the purpose of extracting the parts soluble at that temperature.
Decoction also means the product of this operation.
2. In a case in which the indictment charged the prisoner with having
administered to a woman a decoction of a certain shrub called savin, it
appeared that the prisoner had administered an infusion (q.v.) and not a
decoction; the prisoner's counsel insisted that he was entitled to an
acquittal, on the ground that the medicine was misdescribed, but it was held
that infusion and decoction are ejusdem generis, and that the variance was
immaterial. 3 Camp. R. 74, 75.
DECONFES, canon law in France. Formerly those persons who died without
confession were so called; whether they refused to confess or whether they
were criminals to whom the sacrament was refused. Droit Canon, par M. L'Abbe
Andre. Dupin, Gloss. to Loisel's Institutes, says, Le deconfes est celui qui
meurt sans confession et sans testament car l'un n'alloit point sans
l'autre. See Intestate.
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DECORUM. Proper behaviour; good order.
2. Decorum is requisite in public places, in order to permit all
persons to enjoy their rights; for example, decorum is indispensable in
church, to enable those assembled, to worship. If, therefore, a person were
to disturb the congregation, it would be lawful to put him out. The same
might be done in case of a funeral. 1 Mod. 168; 1 Lev. 196 2 Kebl. 124. But
a request to desist should be first made, unless, indeed," when the
necessity of the case would render such precaution impossible. In using
force to restore order and decorum, care must be taken to use no more than
is necessary; for any excess will render the party using it guilty of an
assault and battery. Vide Battery.
DECOY. A pond used for the breeding and maintenance of water-fowl. 11 Mod.
74, 130; S. C. 3 Salk. 9; Holt, 14 11 East, 571.
DEFUNCT. A term used for one that is deceased or dead. In some acts of
assembly in Pennsylvania, such deceased person is called a decedent. (q.v.)
DEGRADATION, punishment, ecclesiastical law. A censure by which a clergy man
is deprived of his holy orders, which he had as a priest or deacon.
TO DEGRADE, DEGRADING. To, sink or lower a person in the estimation of the
public.
2. As a man's character is of great importance to him, and it is his
interest to retain the good opinion of all mankind, when he is a witness, he
cannot be compelled to disclose any matter which would tend to disgrace or
degrade him, 13 How. St. Tr. 17, 334, 16 How. St. Tr. 161. A question having
that tendency, however, may be asked, and, in such case, when the witness
chooses to answer it, the answer is conclusive. 1 Phil. Ev. 269; R. & M.
383.
DEGREE, descents. This word is derived from the French degre, which is
itself taken from the Latin gradus, and signifies literally, a step in a
stairway, or the round of a ladder.
2. Figuratively applied, and as it is understood in law, it is the
distance between those who are allied by blood; it means the relations
descending from a common ancestor, from generation to generation, as by so
many steps. Hence, according to some Lexicographers, we obtain the word,
pedigree (q.v.) Par degrez, by degree, the descent being reckoned par
degrez. Minshew. Each generation lengthens the line of descent one degree,
for the degrees are only the generations marked in a line by small circles
or squares, in which the names of the persons forming it are written. Vide
Consanguinity;, Line; and also Ayliffe's Parergon, 209; Toull. Dr. Civ.
Frau. liv. 3, t. 1, c. 3, n. 158; Aso & Man. Inst. B. 2, t. 4, c. 3, Sec. 1.
DELAWARE. The name of one of the original states of the United States of
America. For a time the counties of this state were connected with
Pennsylvania, under the name of territories annexed to the latter. In 1703,
a separation between them took place, and from that period clown to the
Revolution, the territories were governed by a separate legislature of their
own, pursuant to the liberty reserved to them by a clause of their original
charter. 1 Story, Constitution, Sec. 127; 1 Votes of Assembly, 131, and part
2, p. 4, of Pennsylvania.
2. The constitution of this state was amended and adopted December 2,
1831. The powers of the government are divided into three branches, the
legislative, the executive, and the judicial.
3.-1st. The legislative power of the state is vested in a general
assembly, which consists of a senate and house of representatives.
4.-1. The senate is composed of three senators from each county; the
number may be increased by the general assembly, two-thirds of each branch
concurring, but the number of senators shall never be greater than one-half,
nor less than two-thirds of the number of representatives. Art. 2, s. 3. The
senators are chosen for four years by the citizens residing in the several
counties.
5.-2. The house of representatives is composed of seven members from
each county, but the general assembly, two-thirds of each branch
concurring, may increase the number. The representatives are chosen for two
years by the citizens residing in the several counties. Art. 2, s. 2.
6.-2d. The supreme executive power of the state is vested in a
governor, who is chosen by the citizens of the state. He holds his office
during four years, from the third Tuesday in January next ensuing his
election; and is not eligible a second time to the said office. Art. 3. Upon
the happening of a vacancy, the speaker of the senate exercises the office,
until a governor elected by the people shall be duly qualified. Art. 3, s.
14.
7.-3d. The judicial power is vested in a court of errors and
appeals,, a superior court, a court of chancery, an orphan's court, a court
of oyer and terminer, a Court of general sessions of the peace and jail
delivery, a register's court, justices of the peace, and such other courts
as the general assembly, with the concurrence of two-thirds of all the
members of both houses shall, from time to time, establish. Art. 6.
DELAY, civil law. The time allowed either by law or by agreement of the
parties to do something.
2. The law allows a delay, for a party who has been summoned to appear,
to make defence, to appeal; it admits of a delay during which and action may
be brought, certain rights exercised, and the like.
3. By the agreement of the parties there may be a delay in the payment
of a debt, the fulfillment of a contract, &c. Vide Code, 3, 11, 4; Nov. 69,
c. 2 Merl. Rep. h
DELECTUS PERSONAE. This phrase, which literally signifies the choice of a
person, is applied to show that partners have the right to select their
copartners; and that no set of partners can take another person into the
partnership, without the consent of each of the partners. Story on Partn. 6
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Colly. on Partn. 4; 1 Swanst. 508; 2 Bouv. Inst. n. 1443.
DELEGATE. A person elected by the people of a territory of the United
States, to congress, who has a seat in congress, and a right of debating,
but not of voting. Ordinance of July, 13, 1787, 3 Story's L. U. S. 2076.
2. The delegates from the territories of the United States are entitled
to send and receive letters, free of postage, on the same terms and
conditions as members of the senate and house of representatives of the
United States; and also to the same compensation as is allowed to members of
the senate and house of representatives. Act of February 18, 1802, 2 Story,
L. U. S. 828.
3. A delegate is also a person elected to some deliberative assembly,
usually one for the nomination of officers.
4. In contracts, a delegate is one who is authorized by another in the
name of the latter; an attorney.
DELEGATION, civil law. It is a kind of novation, (q.v.) by which the
original debtor, in order to be liberated from his creditor, gives him a
third person, who becomes obliged in his stead to the creditor, or to the
person appointed by him.
2. It results from this definition that a delegation is made by the
concurrence of three parties, and that there may be a fourth. There must be
a concurrence, 1. Of the party delegating, that is, the ancient debtor, who
procures another debtor in his stead. 2. Of the party delegated, who enters
into the obligation in the place of the ancient debtor, either to the
creditor of to some other person appointed by him. 3. Of the creditor, who,
in consequence of the obligation contracted by the party delegated,
discharges the party delegating. Sometimes there intervenes a fourth party
namely, the person indicated by the creditor in whose favor the person
delegated becomes obliged, upon the indication of the creditor, and by the
order of the person delegating. Poth. Ob. part. 3, c. 2, art. 6. See Louis.
Code, 2188, 2189; 3 Wend. 66; 5 N. H. Rep. 410; 20 John. R. 76; 1 Wend. 164;
14 Wend. 116; 11 Serg. & Rawle, 179.
3. Delegation is either perfect or imperfect. It is perfect, When the
debtor who makes the delegation, is discharged by the creditor. It is
imperfect when the creditor retains his rights against the original debtor.
2 Duverg. n. 169. See Novation.
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DENIER A DIEU, French law. It is a sum of money which the hirer of a thing
gives to the other party as evidence, or for the consideration of the *
contract, which either party may annul, within twenty-four hours, the one
who, giving the denier a dieu, by demanding, and the other by returning it.
It differs from arrhae. Vide Arrhae; Denarius Dei.
DENIZATION, Eng. law.. The act by which a foreigner becomes a subject of
England; but he has not the rights either of a natural born subject, nor of
one who has become naturalized. Bac. Ab. Aliens, B.
DENIZEN, English law. An alien born, who has obtained, ex donatione legis,
letters patent to make him au English subject.
2. He is intermediate between a natural born subject and an alien. He
may. take lands by purchase or devise, which an alien cannot, but he is
incapable of taking by inheritance. 1 Bl. Com. 374. In the United States
there is no such civil condition.
DENUNCIATION, crim. law. This term is used by the civilians to signify the
act by which au individual informs a public officer, whose duty it is to
prosecute offenders, that a crime has been committed. It differs from a
complaint. (q.v.) Vide 1 Bro. C. L. 447; 2 Id. 389; Ayl. Parer. 210, Poth.
Proc. Cr. sect. 2, Sec. 2.
DEODAND, English law. This word is derived from Deo dandum, to be given to
God; and is used to designate the instrument, whether it be an animal or
inanimate thing, which has caused the death of a man. 3 Inst. 57; Hawk. bk.
1, c. 8.
2. The deodand is forfeited to the king, and was formerly applied to
pious uses. But the presentment of a deodand by a grand jury, under their
general charge from the judge of assize, is void. 1 Burr. Rep. 17.
DEPARTMENT. A portion of a country. In France, the country is divided into
departments, which are somewhat similar to the counties in this country. The
United States have been divided into military departments, including certain
portions of the country. 1 Pet. 293.
2. By department is also meant the division of authority, as, the
department of state, of the navy, &c.
DEPARTMENT OF THE NAVY, government. The Act of April 80, 1798, 1 Story's
Laws, 498, establishes an executive department, under the denomination of
the department of the navy, the chief officer of which shall be called the
secretary of the navy. (q.v.)
2. A principal clerk, and such other clerks as he shall think
necessary, shall be appointed by the secretary of the navy, who shall be
employed in such manner as he shall deem most expedient. In case of vacancy
in the office of the secretary, by removal or otherwise, it shall be the
duty of the principal clerk to take charge and custody of all books,
records, and documents of said office. Id. s. 2
DEPARTMENT OF STATE, government. The laws of the United States provide that
there shall be an executive department, denominated the department of state;
and a principal officer therein, called the secretary of state. (q.v.) Acts
of July 27, 1789; September 15, 1789, s. 1. There shall be in such
department an inferior officer, to be appointed by the Secretary, and
employed therein, as he shall deem proper, to be called the chief clerk of
the department of state. (q.v.) Act of July 27, 1789, s. 2.
2. He may employ, besides, one chief clerk, whose compensation shall
not exceed two thousand dollars. per annum; two clerks, whose compensation
shall not exceed one thousand six hundred dollars; four clerks, whose
compensation shall not exceed one thousand four hundred dollars each; one
clerk, whose compensation shall not exceed one thousand dollars; two clerks,
whose compensation shall not exceed eight hundred dollars each; one,
messenger and assistant, at a compensation not exceeding one thousand and
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fifty dollars per annum; one superintendent of the patent office, whose
compensation shall not exceed one thousand five hundred dollars; and, in the
patent office, one clerk, whose compensation shall not exceed one thousand
dollars; one machinist, at a compensation not exceeding seven hundred
dollars; and one messenger, at a compensation not exceeding four hundred
dollars per annum. Act of May 26, 1824; Act of April 20, 1818, s. 2.
3. By the Act of March 2, 1827, 3 Story's Laws, 2061, he is authorized
to employ, in the state department, one additional clerk, whose compensation
shall not exceed sixteen hundred dollars; two additional clerks, whose
compensation shall not exceed one thousand dollars each; and one additional
clerk for the patent office, whose compensation shall not exceed eight
hundred dollars.
DEPARTURE, maritime law. A deviation from the course of the voyage insured.
2. A departure is justifiable or not justifiable it is justifiable ill
consequence of the stress of weather, to make necessary repairs, to succor a
ship in distress, to avoid capture, of inability to navigate the ship,
mutiny of the crew, or other compulsion. 1 Bouv. Inst. n. 1189.
DEPENDENCY. A territory distinct from the country in which the supreme
sovereign, power resides, but belonging rightfully to it, and subject to the
laws and regulations which the sovereign may think proper to prescribe. It
differs from a colony, because it is not settled by the citizens of the
sovereign or mother state; and from possession, because it is held by other
title than that of mere conquest: for example, Malta was considered a
dependency of Great Britain in the year 1813. 3 Wash. C. C. R. 286. Vide act
of congress, March 1, 1809, commonly called the non-importation law.
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DERIVATIVE POWER. An authority by which one person enables another to do an
act for him. See Powers.
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DESPOTISM, government. That abuse of government, where the sovereign power
is not divided, but united in the hands of a single man, whatever may be his
official title. It is not, properly, a form of government. Toull. Dr. Civ.
Fr. tit. prel. n. 32; Rutherf Inst. b. 1, c. 20, Sec. 1. Vide Tyranny;
Tyrant.
DESRENABLE, Law French. Unreasonable. Britt. c. 121.
DESTINATION. The application which the testator directs shall be made of the
legacy he gives; for example, when a testator gives to a hospital a sum of
money, to be applied in erecting buildings, he is said to give a destination
to the legacy. Destination also signifies the intended application of a
thing. Mill stones, for example, taken out of a mill to be picked, and to be
returned, have a destination, and are considered as real estate, although
detached from the freehold. Heir looms, (q.v.) although personal chattels,
are, by their destination, considered real estate and money agreed or
directed to be laid out in land, is treated as real property. Newl. on
Contr. ch. 8; Fonbl. Eq. B. 1, c. 6, Sec. 9; 3 Wheat. R. 577; 2 Bell's Com.
2; Ersk. Inst. 2 Sec. 14. Vide Mill.
2. When the owner of two adjoining houses uses, during his life, the
property in such a manner as to make one property subject to the other, and
devises one property to one person, and the other to another, this is said
not to be an easement or servitude, but a destination by the former owner.
Lois des Bat. partie 1, c. 4, art. 3, Sec. 3; 5 Har. & John. 82. See
Dedication.
DESTINATION, com. law. The port at which a ship is to end her voyage is
called her port of destination. Pard. n. 600.
DESUETUDE. This term is applied to laws which have become obsolete. (q.v.)
DETAINER. 1. The act of keeping a person against his will, or of keeping
goods or property. All illegal detainers of the person amount to false
imprisonment, and may be remedied by habeas corpus.
2.-2. A detainer or detention of goods is either lawful or unlawful;
when lawful, the party having possession of them cannot be deprived of it.
The detention may be unlawful, although the original taking was lawful; as
when goods were distrained for rent, and the rent was afterwards paid; or
when they 'Were pledged, and the money borrowed, and interest were
afterwards paid; in these, and the like cases, the owner should make a
demand, (q.v.) and if the possessor refuse to restore them, trover,
detinue, or replevin will lie, at the option of the plaintiff.
3.-3. There may also be a detainer of land and this is either lawful
and peaceable, or unlawful and forcible. 1. The detainer is lawful where the
entry has been lawful, and the estate is held by virtue of some right. 2. It
is unlawful and forcible, where the entry has been unlawful, and with force,
and it is retained, by force, against right; or even when the entry has been
peaceable and lawful, if the detainer be by force, and against right; as, if
a tenant at will should detain with force, after the will has determined, he
will be guilty of a forcible detainer. Hawk. P. C. ch. 64, s. 22; 2 Chit.
Pr. 288; Com. Dig, B. 2; 8 Cowen, 216; 1 Hall, 240; 4 John. 198; 4 Bibb,
501. A forcible detainer is a distinct offence from a forcible entry. 8
Cowen, 216. See Forcible entry and detainer.
4.-4. A writ or instrument, issued or made by a competent officer,
authorizing the keeper of a prison to keep in his custody a person therein
named. A detainer may be lodged against. one within the walls of a prison,
on what account soever he is there. Com. Dig. Process, E 3 b.
DICTATOR, civil law. A Magistrate at Rome invested with absolute power. His
authority over the lives and fortunes of the citizens was without bounds.
His office continued but for six months. Hist. de la Jur. h.t.; Dig. l, 2,
18; Id. 1, 1, 1.
DIES. A day. There are four sorts of days: 1. A natural day; as, the morning
and the evening made the first day. 2. An artificial day; that is, from day-
break until twilight in the evening. 3. An astrological day, dies
astrologicus, from sun to sun. 4. A legal day, which is dies juridicus, and
dies non juridicus. 1. Dies juridici, are all days given in term to the
parties in court. Dies non juridici are those which are not appointed to do
business in court, as Sundays, and the like. Dies in banco, days of
appearance in the English court of common bench. 3 Bl. Com. 276. Vide Day,
and 3 Com. Dig. 358.
DIES NON or DIES NON JURIDICI. Non-judicial days. Days during which courts
do not transact any business, as Sunday. The entry of judgment upon such a
day is void. W. Jones, 156.
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DILIGENCE. In Scotland, there are certain forms of law, whereby a creditor
endeavors to make good his payment, either by affecting the person of his
debtor, or by securing the subjects belonging to him from alienation, or by
carrying the property of these subjects to himself. They are either real or
personal.
2. Real diligence is that which is proper to heritable or real rights,.
and of this kind there are two sorts: 1. Inhibitions. 2. Adjudication, which
the law has substituted in the place of apprising.
3. Personal diligence is that by which the person of the debtor may be
secured, or his personal estate affected. Ersk. Pr. L. Scotl. B. 2, t. 11,
s. 1.
DIME, money. A silver coin of the United States, of the value of one-tenth
part of a dollar or ten cents.
2. It weighs forty-one and a quarter grains. Of one thousand parts,
nine hundred are of pure silver and one hundred of alloy. Act of January 18,
1837, s. 8 and 9, 4 Sharsw. cont. of Story's L. U. S. 2523-4.
DIMINUTION OF THE RECORD, practice. This phrase signifies that the record
from an inferior court, sent up to a superior, is incomplete. When this is
the case, the parties may suggest a diminution of the record, and pray a
writ of/ certiorari to the justices of the court below to certify the whole
record. Tidd's Pr. 1109; 1 S. & R. 472; Co. Ent. 232; 8 Vin. Ab. 552; 1
Lilly's Ab. 245; 1 Nels. Ab. 658; Cro. Jac. 597; Cro. Car. 91; Minor, R. 20;
4 Dev. R. 575; 1 Dey. & Bat. 382; 1 Munf. R. 119. Vide Certiorari.
DIOCESE, eccl. law. The district over which a bishop exercises his spiritual
functions. 1 B1. Com. 111.
DIPLOMA. An instrument of writing, executed by, a corporation or society,
certifying that a certain person therein named is entitled to a certain
distinction therein mentioned.
2. It is usually, granted by learned institutions to their members, or
to persons who have studied in them.
3. Proof of the seal of a medical institution and of the signatures of
its officers thereto affixed, by comparison with the seal and signatures
attached to a diploma received by the witness from the same institution, has
been held to be competent evidence of the genuineness of the instrument,
although the witness never saw the officers write their names. 25 Wend. R.
469.
4. This word, which is also written duploma, in the civil law,
signifies letters issued by a prince. They are so called, it is supposed, a
duplicatis tabellis, to which Ovid is thought to allude, 1 Amor. 12, 2, 27,
when he says, Tunc ego vos duplices rebus pro nomine sensi Sueton in
Augustum, c. 26. Seals also were called Diplomata. Vicat ad verb.
DIPLOMACY., The science which treats of the relations and interests of
nations with nations.
DIPLOMATIC AGENTS. This name has been given to public officers, who have
been commissioned, according to law, to superintend and transact the affairs
of the government which has employed them, in a foreign country. Vattel,
liv. 4, c. 5.
2. These agents are of divers orders, and are known by different
denominations. Those of the first order are almost the perfect
representatives of the government by which they are commissioned; they are
legates, nuncios, internuncios, ambassadors, ministers, plenipotentiaries.
Those of the second order do not so fully represent their government; they
are envoys, residents, ministers, charges d'affaires, and consuls. Vide
these several words.
DIPLOMATICS. The art of judging of ancient charters, public documents or
diplomas, and discriminating the true from the false. Encyc. Lond. h.t.
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DIRECT. Straight forward; not collateral.
2. The direct line of descents for example, is formed by a series of
degrees between persons who descend one from another. Civ. Code of Lo. art.
886.
DIRECTION. The order and government of an institution; the persons who
compose the board of directors are jointly called the direction. Direction,
in another sense, is nearly synonymous with instruction. (q.v.)
DIRECTION, practice. That part of a bill in chancery which contains the
address of the bill to the court; this must of course, contain the
appropriate and technical description of the court.
DIRECTOR OF THE MINT. An officer whose duties are prescribed by the Act of
Congress of January 18, 18 37, 4 Sharsw. Cont. of Story L. U. S. 2524, as
follows: The director shall have the control and management of the mint, the
superintendence of the officers and persons employed therein, and the
general regulation and supervision of the business of the several branches.
And in the month of January of every year he shall make report to the
president of the United States of the operation of the mint and its branches
for the year preceding. And also to the secretary of the treasury, from time
to time, as said secretary shall require, setting forth all the operations
of the mint subsequent to the last report made upon the subject.
2. The director is required to appoint, with the approbation of the
president, assistants to the assayer, melter and refiner, chief coiner and
engraver, and clerks to the director and treasurer, whenever, on
representation made by the director to the president, it shall be the
opinion of the president that such assistants or clerks are necessary. And
bonds may be required from such assistants and clerks in such sums as the
director shall determine, with the approbation of the secretary of the
treasury. The salary of the director of the mint, for his services,
including travelling expenses incurred in visiting the different branches,
and all other charges whatever, is three thousand five hundred dollars.
DIRECTORS. Persons appointed or elected according to law, authorized to
manage and direct the affairs of a corporation or company. The whole of the
directors collectively form, the board of directors.
2. They are generally invested with certain powers by the acts of the
legislature, to which they owe their existence.
3. In modern corporations, created by statutes, it is generally
contemplated by the charter, that the business of the corporation shall be
transacted exclusively by the directors. 2 Caines' R. 381. And the acts of
such a board, evidenced by a legal vote, are as completely binding upon the
corporation, and as complete authority to their agents, as the most solemn
acts done under the corporate seal. 8 Wheat. R. 357, 8.
4. To make a legal board of directors, they must meet at a time when,
and a place where, every other director has the opportunity of attending to
consult and be consulted with; and there must be a sufficient number present
to constitute a quorum. 3 L. R. 574; 13 L. R. 527; 6 L. R. 759. See 11 Mass.
288; 5 Litt. R. 45; 12 S. & R. 256; 1 Pet. S. C. R. 46. Vide Dane's Ab. h.t.
5. Directors of a corporation are trustees, and as such are required to
use due diligence and attention to its concerns, and are bound to a faithful
discharge of the duty which the situation imposes. They are liable to the
stockholders whenever there has been gross negligence or fraud; but not for
unintentional errors. 1 Edw. Ch. R. 513; 8 N. S. 80; 3. L. R. 576. See 4
Mann. & Gr. 552.
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DISCHARGE, practice. The act by which a person in confinement, under some
legal process, or held on an accusation of some crime or misdemeanor, is set
at liberty; the writing containing the order for his being so set at
liberty, is also called a discharge.
2. The discharge of a defendant, in prison under a ca. sa., when made
by the plaintiff, has the operation of satisfying the debt, the plaintiff
having no other remedy. 4 T. R. 526. But when the discharge is in
consequence of the insolvent laws, or the defendant dies in prison, the debt
is not satisfied. In the first place the plaintiff has a remedy against the
property of the defendant, acquired after his discharge, and, in the last
case, against the executors or administrators of the debtor. Bac. Ab.
Execution, D; Bingh. on Execution, 266.
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DISCOVERY, intern. law. The act of finding an unknown country.
2. The nations of Europe adopted the principle, that the discovery of
any part of America gave title to the government by whose subjects, or by
whose authority it was made, against all European governments. This title
was to be consummated by possession. 8 Wheat. 543.
DISCOVERY, practice, pleading. The act of disclosing or revealing by a
defendant, in his answer to a bill filed against him in a court of equity.
Vide Bill of Discovery; 8 Vin. Ab. 537; 8 Com. Dig: 515.
DISCOVERY; rights. The patent laws of the United States use this word as
synonymous with invention or improvement of July 4, 1836, s. 6.
their succession for the first nine causes above expressed, when the, acts
of ingratitude, there mentioned, have been committed towards them, instead
of towards their parents; but they cannot disinherit their descendants for
the last cause. Art. 1614.
5. Legitimate children, dying without issue, and leaving a parent,.
cannot disinherit him or her, unless for the seven following causes, to wit:
1. If the parent has accused the child of a capital crime, except, however,
the crime of high treason. 2. If the parent has attempted to take the
child's life. 3. If the parent has, by any violence or force, hindered the
child from making a will. 4. If the parent has refused sustenance to the
child in necessity, having the means of affording it. 5. If the parent has
neglected to take care of the child when in a state of insanity. 6. If the
parent has neglected to ransom the child when in captivity. 7. If the father
or mother have attempted the life the one of the other, in which case the
child or descendant, making a will, may disinherit the one who has attempted
the life of the other. Art. 1615.
6. The testator must express in the will for what reason he
disinherited his forced heirs, or any of them, and the other heirs of the
testator are moreover obliged to prove the facts on which the disinherison
is founded, otherwise it is null. Art. 1616. Vide Nov 115 Ayl. Pand. B. 2,
t. 29; Swinb. art 7, 22.
DISINHERITANCE. The act by which a person deprives his heir of an
inheritance, who, without such act, would inherit.
2. By the common law, any one may give his estate to a stranger, and
thereby disinherit his heir apparent. Coop. Justin. 495. 7 East, Rep. 106.
DISINTERESTED WITNESS. One who has no interest in the cause or matter in
issue, and who is lawfully competent to testify.
2. In North Carolina and Tennessee, wills to pass lands must be
attested by disinterested witnesses. See Attesting Witness; Competent
Witness; Credible Witness; Respectable Witness, and Witness.
DISJUNCTIVE TERM. One which is placed between two contraries, by the
affirming of one of which, the other is taken away: it is usually expressed
by the word or. Vide 3 Ves. 450; 7 Ves. 454; 2 Rop. Leg. 290.; 1 P. Wms.
433; 2 Cox, Rep. 213; 2 P. Wms. 283 2 Atk. 643; 6 Ves. 341; 2 Ves. sr. 67; 2
Str. 1175; Cro. Eliz. 525; Pollexf. 645; 1 Bing. 500; 3 T. R. 470; 1 Ves.
sr. 409; 3 Atk. 83, 85; Ayl. Pand. 56; 2 Miles, Rep. 49.
2. In the civil law, when a legacy is given to Caius or Titius, the
word or is considered and, and both Caius and Titius are entitled to the
legacy in equal parts. 6 Toull. n. 704. See Copulative term; Construction,
subdivision, And; Or.. Also, Bac. Ab. Conditions, P 5.
DISMES. Another name for tithes. Dime, (q.v.) a piece of federal money, is
sometimes improperly written disme.
TO DISMISS A CAUSE, practice. A term used in courts of chancery for removing
a cause out of court without any further hearing.
DISOBEDIENCE. The want of submission to the orders of a superior.
2. In the army, disobedience is a misdemeanor.
3. For disobedience to parents, children may be punished; and
apprentices may be imprisoned for disobedience to the lawful commands of
their master. Vide Correction.
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DISORDERLY HOUSE, crim. law. A house, the inmates of which believe so badly
as to become a nuisance to the neighborhood.
2. The keeper of such house may be indicted for keeping a public
nuisance. Hardr. 344; Hawk. b. 1, c. 78, s. 1 and 2 Bac. Ab. Inns, A; 1
Russ. on Cr. 298; 1 Wheel. C. C. 290; 1 Serg. & Rawle, 342; 2 Serg. & Rawle,
298; Bac. Ab. Nuisances, A; 4 Chit. BI.. Com. 167, 8, note. The husband must
be joined with the wife in an indictment to suppress a disorderly house.
Justice's Case, Law 16; 1 Shaw, 146. Vide Bawdy house; Ill fame.
DISPARAGEMENT. An injury by union or comparison with some person or thing of
inferior rank or excellence; as, while the infant was in ward, by the
English law, the guardian had the power of tendering him a suitable match
without disparagement. 2 Bl. Com. 70.
TO DISPAUPER, Eng. law. To deprive a person of the privilege of suing in
forma pauperis. (q.v.)
2. When a person has been admitted to sue in forma pauperis, and,
before the suit is ended, it appears that the party. has become the owner of
a sufficient estate real or personal, or has been guilty of some wrong, he
may be dispaupered.
DISPENSATION. A relaxation of law for the benefit or advantage of an
individual. In the United States, no power exists, except in the
legislature, to dispense with law, and then it is not so much a dispensation
as a change of the law.
TO DISPONE, Scotch law. This is a technical word, which implies, it is said,
a transfer of feudal property by a particular deed, and is not equivalent to
the term alienate; but Lord Eldon says, "with respect to the word dispone,
if I collect the opinions of a majority of the judges rightly, I am of
opinion that the word dispone would have the same effect as the word
alienate.) (q.v.) Sandford on Entails, 179, note.
DISPOSITION, French law. This word has several acceptations; sometimes it
signifies the effective marks of the will of some person; and at others the
instrument containing those marks.
2. The dispositions of man make the dispositions of the law to cease;
for example, when a man bequeaths his estate, the disposition he makes of
it, renders the legal disposition of it, if he had died intestate, to cease.
DISSEISED pleading. This is a word with a technical meaning, which, when
inserted in an indictment for forcible entry and detainer, has all the force
of the words expelled or unlawfully, for the last is superfluous, and the
first is implied in the word disseised. 8 T. R. 357; Cro. Jac. 32; vide 3
Yeates' R. 39; S. C. 4 Dall. Rep. 212.
DISSEISEE, torts. One who is wrongfully put out of possession of his lands.
DISSEISIN, torts. The privation of seisin. It takes the seisin or estate
from one man and places it in another. It is an ouster of the rightful owner
from the seisin or estate in the land, and the commencement of a new estate
in the wrong doer. It may be by abatement, intrusion, discontinuance, or
deforcement, as well as by disseisin, properly so called. Every
dispossession is not a disseisin. A disseisin, properly so called, requires
an ouster of the freehold. A disseisin at election is not a disseisin in
fact; 2 Prest. Abs. tit. 279, et seq.; but by admission only of the injured
party, for the purpose of trying his right in a real action. Co. Litt. 277;
3 Greenl. 316; 4 N. H. Rep. 371; 5 Cowen, 371; 6 John. 197; 2 Fairf. 309, 2
Greenl. 242; 5 Pet. 402; 6 Pick. 172.
2. Disseisin may be effected either in corporeal inheritances, or
incorporeal. Disseisin of things corporeal, as of houses, lands, &c., must
be by entry and actual dispossession of the freehold; as if a man enters, by
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force or fraud, into the house of another, and turns, or at least, keeps him
or his servants out of possession. Disseisin of incorporeal hereditaments
cannot be an actual dispossession, for the subject itself is neither capable
of actual bodily possession nor dispossession. 3 B1. Com. 169, 170. See 15
Mass. 495 6 John. R. 197; 2 Watts, 23; 6 Pick. 172 1 Verm. 155; 11 Pet. R.
41; 10 Pet. R. 414; 14 Pick. 374; 1 Dana's R. 279; 2 Fairf. 408; 11 Pick.
193; 8 Pick. 172; 8 Vin. Ab. 79; 1 Swift's Dig. 504; 1 Cruise, *65; Arch.
Civ. Pl. 12; Bac. Ab. h.t.; 2 Supp. to Ves. Jr. 343; Dane's Ab. Index, h.t.;
1 Chit. Pr. 374, note (r.)
DISSEISOR, torts. One who puts another out of the possession of his lands
wrongfully.
DISSENT, contracts. A disagreement to something which has been done. It is
express or implied.
2. The law presumes that every person to whom a conveyance has been
made has given his assent to it, because it is supposed to be for his
benefit. To rebut the presumption, his dissent must be expressed. Vide 4
Mason, R. 206; 11 Wheat. R. 78; 1 Binn. R. 502; 2 Binn. R. 174; 6 Binn. R.
338; 12 Mass. R. 456; 17 Mass. R. 552; 3 John. Ch. R. 261; 4 John. Ch. R.
136, 529; and dissent, and the authorities there cited.
DISSOLUTION, contracts. The dissolution of a contract, is the annulling its
effects between the contracting parties.
2. This dissolution of a partnership, is the putting an end to the
partnership. Its dissolution does not affect contracts made between the.
partners and others; so that they are entitled to all their rights, and they
are liable on their obligations, as if the partnership had not been
dissolved. Vide article Partnership and 3 Kent, Com. 27 Dane's Ab. h.t.;
Gow on Partn. Index, h.t.; Wats. on Partn. h.t.; Bouv. Inst. Index, h.t.
DISSOLUTION, practice. The act of rendering a legal proceeding null, or
changing its character; as, a foreign attachment in Pennsylvania is:
dissolved by entering bail to the action. Injunctions are dissolved by the
court.
TO DISSUADE, crim. law. To induce a person not to do an act.
2. To dissuade a witness from giving evidence against a person
indicted, is an indictable offence at common law. Hawk. B. 1, c. 2 1, s. 1
5. The mere attempt to stifle evidence, is also criminal, although the
persuasion should not succeed, on the general principle that an incitement
to commit a crime, is in itself criminal. 1 Russ. on Cr. 44; 6 East, R. 464;
2 East, R. 6, 21; 2 Str. 904; 2 Leach, 925. Vide To Persuade.
DISTRACTED PERSON, This term is used in the statutes of Illinois; Rev. Laws
of Ill. 1833, p. 332; and New Hampshire; Dig. Laws of N. H. 1830, p. 339; to
express a state of insanity.
TO DISTRAIN. To take an keep any personal chattel in custody, as a distress.
(q.v.)
DISTRAINOR. One who makes a distress of goods and chattels to enforce some
right.
DISTRESS, remedies. A distress is defined to be, the taking of a personal
chattel, without legal process, from the possession of the wrong doer, into
the hands of the party grieved, as a pledge for the redress of an injury,
the performance of a duty, or the satisfaction of a demand. 3 Bl. Com. 6. It
is a general rule, that a man who has an entire duty, shall not split the
entire sum and distrain for part of it at one time, and part of it at
another time. But if a man seizes for the whole sum that is due him, but
mistakes the value of the goods distrained, there is no reason why he should
not afterwards complete his execution by making a further seizure. 1 Burr.
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589. It is to be observed also, that there is an essential difference
between distresses at common law and distresses prescribed by statute. The
former are taken nomine penae, (q.v.) as a means of compelling payment; the
latter are similar to executions, and are taken as satisfaction for a duty.
The former could not be sold the latter might be. Their only similarity is,
that both are replevisable. A consequence of this difference is, that averia
carucae are distrainable in the latter case, although there be other
sufficient distress. 1 Burr. Rep. 588.
2. The remedy by distress to enforce the payment of arrears of rent is
so frequently adopted by landlords, (Co. Lit. 162, b,) that a considerable
space will be allotted to this article under the following heads: 1. The
several kinds of rent for which a distress may be made. 2. The persons who
may make it. 3. The goods which may be distrained. 4. The time when a
distress may be made. 5. In what place it may be made. 6. The manner of
making it, and disposing of the goods distrained. 7. When a distress will be
a waiver of a forfeiture of the lease.
3.-1. Of the rents for which a distress may be made. 1. A distress
may generally be taken for any kind of rent in arrear, the detention of
which, beyond the day of payment, is an injury to him who is entitled to
receive it. 3 Bl. Com. 6. The rent must be reserved out of a corporeal
hereditament, and must be certain in its quantity, extent, and time of
payment, or at least be capable of being reduced to certainty. Co. Lit. 96,
a.; 13 Serg. & Rawle, 64; 3 Penn. R. 30. An agreement that the lessee pay no
rent, provided he make repairs, and the value of the repairs is uncertain,
would not authorize the landlord to distrain. Addis. 347. Where the rent is
a certain quantity of grain, the landlord may distrain for so many bushels
in arrear, and name the value, in order that if the goods should not be
replevied, or the arrears tendered, the officer may know what amount of
money is to be raised by the sale, and in such case the tenant may tender
the arrears in grain. 13 Serg. & Rawle, 52; See 3 Watts & S. 531. But where
the tenant agreed, instead of rent, to render " one-half part of all the
grain of every kind, and of all hemp, flax, potatoes, apples, fruit, and
other produce of whatever kind that should be planted, raised, sown or
produced, on or out of the demised premises, within and during the terms,",
the landlord cannot, perhaps, distrain at all; he cannot, certainly,
distrain for a sum of money, although he and the tenant may afterwards have
settled their accounts, and agreed that the half of the produce of the land
should be fixed in money, for which the tenant gave his note, which was not
paid. 1 3 Serg. & Rawle, 5 2. But in another case it was held, that on a
demise of a grist mill, when the lessee is to render one-third of the toll,
the lessor may distrain for rent. 2 Rawle, 11.
4.-2. With respect to the amount of the rent, for which a lessor may
in different cases be entitled to make a distress, it may be laid down as a
general rule, that whatever can properly be considered as a part of the
rent, may be distrained for, whatever be the particular mode in which it is
agreed to be paid. So that where a person entered into possession of certain
premises, subject to the approbation of the landlord, which was afterwards
obtained, by agreeing to pay in advance, rent from the time be came into
possession, it was, in England, determined that the landlord might distrain
for the whole sum accrued before and after the agreement. Cowp. 784. For on
whatever day the tenant agrees that the rent shall be due, the law gives the
landlord the power of distraining for it at that time. 2 T. R. 600. But see
13 S. & R. 60. In New York, it was determined, that an agreement that the
rent should be paid in advance, is a personal covenant on which an action
lies, but not distress. 1 Johns. R. 384. The supreme court of Pennsylvania
declined deciding this point, as it was not necessarily before them. 13
Serg. & Rawle, 60. Interest due on rent cannot, in general, be distrained
for; 2 Binn. 146; but may be recovered from the tenant by action, unless
under particular circumstances. 6 Binn. 159.
5.-2. Of the persons entitled to make a distress. 1. When the
landlord is sole owner of the property out of which rent is payable to him,
he may, of course, distrain in his own right.
6.-2. Joint tenants have each of them an estate in every part of the
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rent; each may, therefore, distrain alone for the whole, 3 Salk. 207,
although he must afterwards account with his companions for their respective
shares of the rent. 3 Salk. 17; 4 Bing. 562; 2 Brod. & B. 465; 5 Moore, 297
Y. B. 15 H. VIII, 17, a; 1 Chit. Pr. 270; 1 Tho. Co. Litt. 783, note R; Bac.
Ab. Account; 5 Taunt. 431; 2 Chit. R. 10; 3 Chit. Pl. 1297. But one joint
tenant cannot avow solely, because the avowry is always upon the right, and
the right of the rent is in all of them. Per Holt, 3 Salk. 207. They may all
join in making the distress, which is the better way.
7.-3. Tenants in common do not, like joint tenants, hold by one title
and by one right, but by different titles, and have several estates.
Therefore they should distrain separately, each for his share, Co. Lit. s.
317, unless the rent be of an entire thing, as to render a horse, in which
case, the thing being incapable of division, they must join. Co. Lit. 197,
a. Each tenant in common is entitled to receive, from the lessee, his
proportion of the rent; and therefore, when a person holding under two
tenants in common, paid the whole rent to one of them, after having received
a notice to the contrary from the other, it was held, that the party who
gave the notice might afterwards distrain. 5 T. R. 246. As tenants in common
have no original privity of estate between them, as to their respective
shares, one may lease his part of the land to the other, rendering rent, for
which a distress may be made, as if the land had been demised to a stranger.
Bro. Ab. tit. Distress, pl. 65.
8.-4. It may be, perhaps, laid down as a general rule, that for rent
due in right of the wife, the husband may distrain alone; 2 Saund. 195; even
if it accrue to her in the character of executrix or administratrix. Ld.
Raym. 369. With respect to the remedies for the recovery of the arrears of a
rent accruing in right of his wife, a distinction is made between rent due
for land, in which the wife has a chattel interest, and rent due in land, in
which she has an estate of freehold and inheritance. And in some cases, a
further distinction must be made between a rent accruing before and rent
accruing after the coverture. See, on this subject, Co. Lit. 46, b, 300, a;
351, a; 1 Roll. Abr. 350; stat; 32 Hen. VIII. c. 37, s. 3.
9.-5. A tenant by the curtesy, has an estate of freehold in the lands
of his wife, and in contemplation of law, a reversion on all land of the
wife leased for years or lives, and may distrain at common law for all rents
reserved thereon.
10.-6. A woman may be endowed of rent as well as of land; if a
husband, therefore, tenant in fee, make a lease for years, reserving rent,
and die, his widow shall be endowed of one-third part of the reversion by
metes and bounds, together with a third part of the rent. Co. Litt. 32, a.
The rent in this base is apportioned by the act of law, and therefore if a
widow be endowed of a third part of a rent in fee, she may distrain for a
third part thereof, and the heir shall distrain for the other part of the
rent. Bro. Abr. tit. Avowry, pl. 139.
11.-7. A tenant for his own life or that of another, has an estate of
freehold, and if he make a lease for years, reserving rent, he is entitled
to distrain upon the lessee. It may here be proper to remark, that at common
law, if a tenant for life made a lease for years, if be should so long live,
at a certain rent, payable quarterly, and died before the quarter day, the
tenant was discharged of that quarter's rent by the act of God. 10 Rep. 128.
But the 11 Geo. II. c. 19, s. 15, gives an action to the executors or
administrators of such tenant for life.
12.-8. By the statute 32 Henry VIII. c. 37, s. 1, "the personal
representatives of tenants in fee, tail, or for life, of rent-service, rent-
charge, and rents-seek, and fee farms, may distrain for, arrears upon the
land charged with the payment, so long as the lands continue in seisin or
possession of the tenant in demesne, who ought to have paid the rent or fee
farm, or some person claiming under him by purchase, gift or descent." By
the words of the statute, the distress must be made on the lands while in
the possession of the "tenant in demesne," or some person claiming under
him, by purchase, gift or descent; and therefore it extends to the
possession of those persons only who claim under the tenant, and the statute
does not comprise the tenant in dower or by the curtesy, for they come in,
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not under the party, but by act of law. 1 Leon. 302.
13.-9. The heir entitled to the reversion may distrain for rent in
arrear which becomes due after the ancestor's death; the rent does not
become due till the last minute of the natural day, and if the ancestor die
between sunset and midnight, the heir, and not the executor, shall have the
rent. 1 Saund. 287. And if rent be payable at either of two periods, at the
choice of the lessee, and the lessor die between them, the rent being
unpaid, it will go to the heir. 10 Rep. 128, b.
14.-10. Devisees, like heirs, may distrain in respect of their
reversionary estate; for by a devise of the reversion the rent will pass
with its incidents. 1 Ventr. 161.
15.-11. Trustees who have vested in them legal estates, as trustees of
a married woman, or assignees of an insolvent, may of course distrain in
respect of their legal estates, in the same manner as if they were
beneficially interested therein.
16.-12. Guardians may make leases of their wards' lands in their, own
names, which will be good during the minority of the ward. and,
consequently, in respect of such leases, they possess the same power of
distress as other persons granting leases in their own rights. Cro. Jac. 55,
98.
17.-13. Corporations aggregate should generally make and accept leases
or other conveyances of lands or rent, under their common seal. But if a
lease be made by an agent of the corporation, not under their common seal,
although it may be invalid as a lease, yet if the tenant hold under it, and
pay rent to the bailiff or agent of the corporation, that is sufficient to
constitute a tenancy at least from year to year, and to entitle the
corporation to distrain for rent. New Rep. 247. But see Corporation.
18.-3. Of the things which may or may not be distrained. Goods found
upon the premises demised to a tenant are generally liable to be distrained
by a landlord for rent, whether such goods in fact belong to the tenant or
other persons. Coin. Dig. Distress, B 1. Thus it has been held, that a
gentleman's chariot, which stood in a coach-house belonging to a common
livery stable keeper, was distrainable by the landlord for the rent due him
by the livery stable keeper for the coach-house. 3 Burr. 1498. So if cattle
are put on the tenant's land by consent of the owners of the beasts, they
are distrainable by the landlord immediately after for rent in arrear. 3 Bl.
Com. 8. But goods are sometimes privileged from distress, either absolutely
or conditionally.
19. First. Those of the first class are privileged, 1. In respect of the
owner of 2. Because no one can have property in them. 3. Because they cannot
be restored to the owner in the same plight as when taken. 4. Because they
are fixed to the freehold. 5. Because it is against the policy of law that
they should be distrained. 6. Because they are in the custody of the law. 7.
Because they are protected by some special act of the legislature.
20.-1. The goods of a person who has some interest, in the land
jointly with the distrainer, as those of a joint tenant, although found upon
the land, cannot be distrained. The goods of executors and administrators,
or of the assignee of an insolvent regularly discharged according to law,
cannot, in Pennsylvania, be distrained for more than one year's rent. The
goods of a former tenant, rightfully on the land, cannot be distrained for
another's rent. For example, a tenant at will, if quitting upon notice from
his landlord, is entitled to the emblements or growing crops; and therefore
even after they are reaped, if they remain on the land for the purpose of
husbandry, they cannot be distrained for rent due by the second tenant.
Willes, 131. And they are equally protected in the hands of a vendee. Ibid.
They cannot be distrained, although the purchaser allow them to remain uncut
an unreasonable time after the are ripe. 2 B. & B. 862; 5 Moore, 97, S. C.
21.-2. As every thing which is distrained is presumed to be the
property of the tenant, it will follow that things wherein no man can have
an absolute and valuable property, as cats, dogs, rabbits, and all animals
ferae naturae, cannot be distrained. Yet, if deer, which are of a wild
nature, are kept in a private enclosure, for the purpose of sale or profit,
this so far changes their nature by reducing them to a kind of stock or
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merchandise, that they may be distrained for rent. 3 B1. Com. 7.
22.-3. Such things as cannot be restored to the owner in the same
plight as when they were taken, as milk, fruit, and the like, cannot be
distrained. 3 Bl. Com. 9.
23.-4. Things affixed or annexed to the freehold, as furnaces, windows,
doors, and the like, cannot be distrained, because they are not personal
chattels, but belong to the realty. Co. Litt. 47, b. And this rule extends.
to such things as are essentially a part of the freehold, although for a
time removed therefrom, as a millstone removed to be picked; for this is
matter of necessity, and it still remains in contemplation of law, a part of
the freehold. For the same reason an anvil fixed in a smith's shop cannot be
distrained. Bro. Abr. Distress, pl. 23; 4 T. R. 567; Willis, Rep. 512 6
Price's R. 3; 2 Chitty's R. 167.
24.-5. Goods are privileged in cases where the proprietor is either
compelled, from necessity to place his goods upon the land, or where be does
so for commercial purposes. 17 S. & R. 139; 7 W. & S. 302; 8 W. & S. 302; 4
Halst. 110; 1 Bay, 102, 170; 2 McCord, 39; 3 B. & B. 75; 6 J. B. Moore, 243;
1 Bing. 283; 8 J. B. Moore, 254; 2 C. & P. 353; 1 Cr. M. 380. In the first
case, the goods are exempt, because the owner has no option; hence the goods
of a traveller in an inn are exempt from distress. 7 H. 7, M. 1, p. 1.;
Hamm. N. 380, a.; 2 Keny. 439; Barnes, 472; 1 Bl. R. 483; 3 Burr. 1408. In
the other, the interests of the community require that commerce should be
encouraged, and adventurers will not engage in speculations, if the property
embarked is to be made liable for the payment of debts they never
contracted. Hence goods landed at a wharf, or deposited in a warehouse on
storage, cannot be distrained. 17 Serg. & Rawle, 138; 6 Whart. R. 9, 14; 9
Shepl. 47; 23 Wend. 462. Valuable things in the way of trade are not liable
to distress; as, a horse standing in a smith's shop to be shod, or in a
common inn; or cloth at a tailor's house to be made into a coat; or corn
sent to a mill to be ground, for these are privileged and protected for the
benefit of trade. 3 Bl. Com. 8. On the same principle it has been decided,
that the goods of a boarder are not liable to be distrained for rent due by
the keeper of a boarding house; 5 Whart. R. 9; unless used by the tenant
with the boarder's consent, and without that of the landlord: 1 Hill , 565.
25.-6. Goods taken in execution cannot be distrained. The law in some
states gives the landlord the right to claim payment out of the proceeds of
an execution for rent, not exceeding one year, and he is entitled to payment
up to the day of seizure, though it be in the middle of a quarter 2 Yeates,
274; 5 Binn. 505; but he is not entitled to the day of sale. 5 Binn. 505.
See 18 Johns. R. 1. The usual practice is, to give notice to the, sheriff
that there is a certain sum due to the landlord as arrears of rent; which
notice ought to be given to the sheriff, or person who takes the goods in
execution upon the premises for the sheriff is, not bound to find out
whether rent is due, nor is he liable to an action, unless there has been a
demand of rent before the removal. 1 Str. 97, 214; 3 Taunt. 400 2 Wils. 140;
Com. Dig. Rent, D 8; 11 Johns. R. 185. This notice can be given by the
immediate landlord only a ground landlord is not entitled to his rent out of
the goods of the under tenant taken in execution. 2 Str. 787. And where
there are two executions, the landlord is not entitled to a year's rent on
each. See Str. 1024. Goods distrained and replevied may be distrained by
another landlord for subsequent rent. 2 Dall. 68.
26.-7. By some special acts of the legislature it is provided that tools
of a man's trade, some designated household furniture, school books, and the
like, shall be exempted from distress, execution, or sale. And by a recent
Act of Assembly of Pennsylvania, April 9, 1849, property to the value of
three hundred dollars, exclusive of all wearing apparel of the defendant and
his family, and all bibles and school books in use in the family, are
exempted from levy and sale on execution, or by distress for rent.
27.-Secondly. Besides the above mentioned goods and chattels, which
are absolutely privileged from distress, there are others which are
conditionally so, but which may be distrained under certain circumstances.
These are, 1. Beasts of the plough, which are exempt if there be a
sufficient distress besides on the land whence the rent issues. Co. Litt.
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47, a; Bac. Abr. Distress, B. 2. Implements of trade; as, a loom in actual
use; and there is a sufficient distress besides. 4 T. R. 565. 3. Other
things in actual use,; as, a horse whereon a person is riding, an axe in the
hands of. a person cutting wood, and the like. Co. Litt. 4 7, a.
28.-4. The time when a distress may be made. 1. The distress cannot be
made till the rent is due by the terms of the lease; as rent is not due
until the last minute of the natural day on which it is reserved, it follows
that a distress for rent cannot be made on that day. 1 Saund. 287; Co. Litt.
47, b. n. 6. A previous demand is not generally necessary, although there be
a clause in the lease, that the lessor may distrain for rent," being
lawfully demanded Bradb. 124; Bac. Abr. Rent, 1; the making of the distress
being a demand though it is advisable to make such a demand. But where a
lease provides for a special demand; as, if the clause were that if the rent
should happen to be behind it should be demanded at a particular place not
on the land; or be demanded of the person of the tenant; then such special
demand is necessary to support the distress. Plowd. 69 Bac. Abr. Rent, I.
29.-2 A distress for rent can only be made during the day time. Co.
Litt. 142, a.
30.-3. At common law a distress could not be made after the expiration
of the lease to remedy this evil the legislature of Pennsylvania passed an
act making it "lawful for any person having any rent in arrear or due upon
any lease for life or years or at will, ended or determined, to distrain for
such arrears after the determination of the said respective leases, in the
same manner as they might have done, if such lease had not been ended:
provided, that such distress be made during the continuance of such lessor's
title or interest.", Act of March 21, 1772, s. 14, 1 Smith's Laws of Penna.
375. 4. In the city and county of Philadelphia, the landlord may, under
certain circumstances, apportion his rent, and distrain before it becomes
due. See act of March 25, 1825, s. 1, Pamph. L. 114.
31.-5. In what place a distress may be made. The distress may be made
upon the land, or off the land. 1. Upon the land. A distress generally
follows the rent, and is consequently confined to the land out of which it
issues. If two pieces of land, therefore, are let by two separate demises,
although both be contained in one lease, a joint distress cannot be made for
them, for this would be to make the rent of one issue out of the other. Rep.
Temp. Hardw. 245; S. C. Str. 1040. But where lands lying in different
counties are let together by one demise, at one entire rent, and it does not
appear that the lands are separate from each other, one distress may be made
for the whole rent. Ld. Raym. 55; S. C. 12 Mod. 76. And, where rent is
charged upon land, which is afterwards held by several tenants, the grantee
or landlord may distrain for the whole upon the land of any of them; because
the whole rent is deemed to issue out of every part of the land. Roll. Abr.
671. If there be a house on the land, the distress may be made in the house;
if the outer door or window be open, a distress may be taken out of it.
Roll. Abr. 671. And if an outer door be open, an inner door may be broken
open for the purpose of taking a distress. Comb. 47; Cas. Temp. Hard. 168.
Barges on a river, attached to the leased premises (a wharf) by ropes,
cannot be distrained. 6 Bingh. 150; 19 Eng. Com. Law R. 36.
32.-2. Off the land. By the 5th and 6th sections of the Pennsylvania
act of assembly of March 21, 1772, copied from the 11 Geo. II. c. 19, it is
enacted, that if any tenant for life, years, at will, or otherwise, shall
fraudulently or clandestinely convey his goods off the premises to prevent
the landlord from distraining the same, such person, or any person by him
lawfully authorized, may, within thirty days after such conveyance, seize
the same, wherever they shall be found, and dispose of them in such manner
as if they had been distrained on the premises. Provided, that the landlord
shall not distrain any goods which shall have been previously sold, bona
fide, and for a valuable consideration, to one not privy to the fraud. To
bring a case within the act, the removal must take place after the rent
becomes due, and must be secret, not made in open day, for such removal
cannot be said to be clandestine within the meaning of the act. 3 Esp. N. P.
C. 15; 12 Serg. & Rawle, 217; 7 Bing. 422; 1 Moody & Malkin, 585. It has
however been made a question, whether goods are protected that were
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fraudulently removed on the night before the rent had become due. 4 Camp.
135. The goods of a stranger cannot be pursued; they can be distrained only
while they are, on the premises. 1 Dall. 440.
33.-6. Of the manner of making a distress. 1. A distress for rent may
be made either by the person to whom it is due, or, which is the preferable
mode, by a constable, or bailiff, or other officer properly authorized by
him.
34.-2. If the distress be made by a constable, it is necessary that he
should be properly authorized to make it; for which purpose the landlord
should give him a written authority, or; as it is usually called, a warrant
of distress; but a subsequent assent and recognition given by the party for
whose use the distress has been made, is sufficient. Hamm. N. P. 382.
35.-3. When the constable is thus provided with the requisite
authority to make a distress, he, may distrain by seizing the tenant's
goods, or some of them in the name of the whole, and declaring that he takes
them as a distress for the sum expressed in the warrant to be due by the
tenant to the landlord, and that he takes them by virtue of the said
warrant; which warrant he ought, if required, to show. 1 Leon. 50.
36.-4. When making the distress it ought to be made for the whole
rent; but if goods cannot be found at the time, sufficient to satisfy the
rent, or the party mistake the value of the thing distrained, he may make a
second distress. Bradb. 129, 30; 2 Tr. & H. Pr. 155; supra 1.
37.-5. As soon as a distress is made, an inventory of the goods
distrained should be made, and a copy of it delivered to the tenant,
together with a notice of taking such distress, with the cause for taking
the same. This notice of taking a distress is not required by the statute to
be in writing; and, therefore, parol or verbal notice may be given either to
the tenant on the premises, or to the owner of the goods distrained. 12 Mod.
76. And although notice is directed by the act to specify the cause of
taking, it is not material whether it accurately state the period of the
rent's becoming due; Dougl. 279; or even whether the true cause of taking
the goods be expressed therein. 7 T. R. 654. If the notice be not personally
given, it should be left in writing at the tenant's house, or according to
the directions of the act, at the mansion-house or other most notorious
place on the premises charged with the rent distrained for.
38.-6. The distrainor may leave or impound the distress on the
premises for the five days mentioned in the act, but becomes a trespasser
after that time. 2 Dall. 69. As in many cases it is desirable for the sake
of the tenant that the goods should not be sold as soon as the law permits,
it is usual for him to sign an agreement or consent to their remaining on
the premises for a longer time, in the custody of the distrainor, or of a
person by him appointed for that purpose. While in his possession, the
distrainor cannot use or work cattle distrained, unless it be for the
owner's benefit, as to milk a cow, or the like. 5 Dane's Abr. 34.
39.-7. Before the goods are sold they must be appraised by two
reputable free-holders, who shall take an oath or affirmation to be
administered by the sheriff, under-sheriff, or coroner, in the words
mentioned in the act.
40.-8. The next requisite is to give six days public notice of the
time and place of sale of the things distrained; after which, if they have
not been replevied, they may be sold by the proper officer, who may apply
the proceeds to the payment and satisfaction of the rent, and the expenses
of the distress, appraisement and sale. The over-plus, if any, is to be paid
to the tenant.
41.-7. When a distress will be a waiver of a forfeiture of the lease.
On this subject, see 1 B. & Adol. 428. The right of distress, it seems, does
not exist in the New England states. 4 Dane's Ab. 126; 7 Pick. R. 105; 3
Griff. Reg 404; 4 Griff. Reg. 1143; Aik. Dig. 357, nor in Alabama,
Mississippi, North Carolina, nor Ohio; and in Kentucky, the right is limited
to a distress for a pecuniary rent. 1 Hill. Ab. 156. Vide, generally, Bouv.
Inst. Index, h . t.; Gilb. on Distr. by Hunt; Bradb. on Distr.; Com. Dig.
h.t.; Bac. Ab. h.t.; Vin. Ab. h.t.; 2 Saund. Index, h.t.; Wilk. on Repl.; 3
Chit. Bl. Com. 6, note; Crabb on R. P. Sec. 222 to 250.
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DISTRESS INFINITE, English practice. A process commanding the sheriff to
distrain a person from time to time, and continually afterwards, by taking
his goods by way of pledge, to enforce the performance of something due from
the party distrained upon. In this case, no distress can be immoderate,
because, whatever its value may be, it cannot be sold, but is to be
immediately restored on satisfaction being made. 3 Bl. Com. 231. See
Distringas.
DISTRIBUTION. By this term is understood the division of an intestate's
estate according to law.
2. The English statute of 22 and 23 Car. II. c. 10, which was itself
probably borrowed from the 118th Novel of Justinian, is the foundation of,
perhaps, most acts of distribution in the several states. Vide 2 Kent, Com.
342, note; 8 Com. Dig. 522; 11 Vin. Ab. 189, 202; Com. Dig. Administration,
H.
DISTRIBUTIVE JUSTICE. That virtue, whose object it is to distribute rewards
and punishments to every one according to his merits or demerits. Tr. of Eq.
3; Lepage, El. du Dr. ch. 1, art. 3, Sec. 2 1 Toull. n. 7, note. See
Justice.
DISTRICT. A certain portion of the country, separated from the rest for some
special purposes. The United States are divided into judicial districts, in
each of which is established a district court; they are also divided into
election districts; collection districts, &c.
DISTRICT ATTORNEYS OF THE UNITED STATES. There shall be appointed, in each
judicial district, a meet person, learned in the law, to act as attorney of
the United States in such district, who shall be sworn or affirmed to the
faithful execution of his office. Act of September 24, 1789, s. 35, 1
Story's Laws, 67.
2. His duty is to prosecute, in such district, all delinquents, for
crimes and offences cognizable under the authority of the United States, and
all civil actions in which the United States shall be concerned, except in
the supreme court, in the district in which that court shall be holden. Ib.
3. Their salaries vary in different districts. Vide Gordon's Dig. art.
403. By the Act of March 3, 1815, 2 Story's L. U. S. 1530, district
attorneys are authorized to appoint deputies, in certain cases, to sue in
the state courts. See Deputy District Attorney.
DISTRICT COURT. The name of one of the courts of the United States. It is
held by a judge, called the district judge. Several courts under the same
name have been established by state authority. Vide Courts of the United
States.
DISTRICT OF COLUMBIA. The name of a district of country, ten miles square,
situate between the states of Maryland and Virginia, over which the national
government has exclusive jurisdiction. By the constitution, congress may "
exercise exclusive jurisdiction in all cases whatsoever, over such district,
not exceeding ten miles square, as may, by, cession of particular states,
and the acceptance of congress, become the seat of government of the United
States." In pursuance of this authority, the states of Maryland and
Virginia, ceded to the United States, a small territory on the banks of the
Potomac, and congress, by the Act of July 16, 1790, accepted the same for
the permanent seat of the government of the United States. The act provides
for the removal of the seat of government from the city of Philadelphia to
the District of Columbia, on the first Monday of December, 1800. It is also
provided, that the laws of the state, within such district, shall not be
affected by the acceptance, until the time fixed for the removal of the
government thereto, and until congress shall otherwise by law provide.
2. It seems that the District of Columbia, and the territorial
districts of the United States, are not states within the meaning of the
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constitution, and of the judiciary act, so as to enable a citizen thereof to
sue a citizen of one of the states in the federal courts. 2 Cranch, 445; 1
Wheat, 91.
3. By the Act of July 11, 1846, congress retroceded the county of
Alexandria, part of the District of Columbia, to the state of Virginia.
DISTRINGAS, remedies. A writ directed to the sheriff, commanding him to
distrain one of his goods and chattels, to enforce his compliance of what is
required of him, as for his appearance in a court on such a day, and the
like. Com. Dig. Process, D 7; Chit. Pr. Index, h.t. Sellon's Pr. Index, h.t.;
Tidd's Pr. Index, h.t. 11 East, 353. It is also a form of execution in
the action of detinue, and assize of nuisance. Registrum Judiciale, 56; 1
Rawle, 44, 48; Bro. Abr. pl. 26; 22; H. VI. 41. This writ is likewise used
to compel the appearance of a corporation aggregate. 4 Bouv. Inst. n. 4191.
DISTURBANCE, torts. A wrong done to an incorporeal hereditament, by
hindering or disquieting the owner in the enjoyment of it. Finch. L. 187; 3
Bl. Com. 235; 1 Swift's Dig. 522; Com. Dig. Action upon the case for a
disturbance, Pleader, 3 I 6; 1 Serg. & Rawle, 298.
DIVIDEND. A portion of the principal, or profits, divided among several
owners of a thing.
2. The term is usually applied to the division of the profits arising
out of bank or other stocks; or to the division, among the creditors, of the
elects of an insolvent estate.
3. In another sense, according to some old authorities, it signifies
one part of an indenture. T. L.
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DOME-BOOK, DOOM-BOOK or DOM-BEC A book in which Alfred the Great, of
England, after uniting the Saxon heptarchy, collected the various customs
dispersed through the kingdom, and digested them into one uniform code. 4
Bl. Com. 411.
DOMESDAY, or DOMESDAY-BOOK. An ancient record made in the time of William
the Conqueror, and now remaining in the English exchequer, consisting of two
volumes of unequal sizes, containing surveys of the lands in England.
DOMESTICS. Those who reside in the same house with the master they serve the
term does not extend to workmen or laborers employed out of doors. 5 Binn.
R. 167; Merl. Rep. h.t. The Act of Congress of April 30, 1790, s. 25, uses
the word domestic in this sense.
2. Formerly, this word was used to designate those who resided in the
house of another, however exalted their station, and who performed services
for him. Voltaire, in writing to the French queen, in 1748, says) " Deign to
consider, madam, that I am one of the domestics of the king, and
consequently yours, lily companions, the gentlemen of the king," &c.
3. Librarians, secretaries, and persons in such honorable employments,
would not probably be considered domestics, although they might reside in
the house of their respective employers.
4. Pothier, to point out the distinction between a domestic and a
servant, gives the following example: A literary man who lives and lodges
with you, solely to be your companion, that you may profit by his
conversation and learning, is your domestic; for all who live in the same
house and eat at the same table with the owner of the house, are his
domestics, but they are not servants. On the contrary, your Valet de,
chambre, to whom you pay wages, and who sleeps out of your house, is not,
properly speaking, your domestic, but your servant. Poth. Proc. Cr. sect. 2,
art. 5, Sec. 5; Poth. Ob. 710, 828; 9 Toull. n. 314; H. De Pansey, Des
Justices de Paix, c. 30, n. 1. Vide Operative; Servant.
DOMICIL. The place where a person has fixed his ordinary dwelling, without a
present intention of removal. 10 Mass. 488; 8 Cranch, 278; Ersk. Pr. of Law
of Scotl. B. 1, tit. 2, s. 9; Denisart, tit. Domicile, 1, 7, 18, 19; Voet,
Pandect, lib. 5, tit. 1, 92, 97; 5 Madd. Ch. R. 379; Merl. Rep. tit.
Domicile; 1 Binn. 349, n.; 4 Humph. 346. The law of domicil is of great
importance in those countries where the maxim "actor sequitur forum rei" is
applied to the full extent. Code Civil, art. 102, &c.; 1 Toullier, 318.
2. A man cannot be without a domicil, for he is not supposed to have
abandoned his last domicil until he has acquired a new one. 5 Ves. 587; 3
Robins. 191; 1 Binn. 349, n.; 10 Pick. 77. Though by the Roman law a man
might abandon his domicil, and, until be acquired a. new one, he was without
a domicil. By fixing his residence at two different places a man may have
two domicils at one and the same time; as, for example, if a foreigner,
coming to this country, should establish two houses, one in New York and
the, other in New Orleans, and pass one-half of the year in each; he would,
for most purposes, have two domicils. But it is to be observed that
circumstances which might be held sufficient to establish a commercial
domicil in time of war, and a matrimonial, or forensic or political domicil
in time of peace, might not be such as would establish a principal or
testamentary domicil, for there is a wide difference in applying the law of
domicil to contracts and to wills. Phill. on Dom. xx; 11 Pick. 410 10 Mass.
488; 4 Wash. C. C. R. 514.
3. There are three kinds of domicils, namely: 1. The domicil of origin.
domicilium originis vel naturale. 2. The domicil by operation of law, or
necessary domicil. 3. Domicil of choice.
4.-1. By domicil of origin is understood the home of a man's parents,
not the place where, the parents being on a visit or journey, a child
happens to be born. 2 B. & P. 231, note; 3 Ves. 198. Domicil of origin is to
be distinguished from the accidental place of birth. 1 Binn. 349.
5.-2. There are two classes of persons who acquire domicil by
operation of law. 1st. Those who are under the control of another, and to
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whom the law gives the domicil of another. Among these are, 1. The wife. 2.
The minor. 3. The lunatic, &c. 2d. Those on whom the state affixes a
domicil. Among this class are found, 1. The officer. 2. The prisoner, &c.
6.-1st. Among those who, being under the control of another, acquire
such person's domicil, are, 1. The wife. The wife takes the domicil of her
husband, and the widow retains it, unless she voluntarily change it, or
unless, she marry a second time, when she takes the domicil of the second
husband. A party may have two domicils, the one actual, the other legal; the
husband's actual and the wife's legal domicil, are, prima facie, one.
Addams' Ecc. R. 5, 19. 2. The domicil of the minor is that of the father, or
in Case of his death, of the mother. 5 Ves. 787; 2 W. & S. 568; 3 Ohio R.
101; 4 Greenl. R. 47. 3. The domicil of a lunatic is regulated by the same
principles which operated in cases of minors the domicil of such a person
may be changed by the direction, or with the assent of the guardian, express
or implied. 5 Pick. 20.
7.-2d. The law affixes a domicil. 1. Public officers, such as the
president of the United States, the secretaries and such other officers
whose public duties require a temporary residence at the capital, retain
their domicils. Ambassadors preserve the domicils which they have in their
respective countries, and this privilege extends to the ambassador's family.
Officers, soldiers, and marines, in the service of the United States, do not
lose their domicils while thus employed. 2. A prisoner does not acquire a
domicil where the prison is, nor lose his old. 1 Milw. R. 191, 2.
8.-3. The domicil of origin, which has already been explained,
remains until another has been acquired. In order to change such domicil;
there must be an actual removal with an intention to reside in the place to
which the party removes. 3 Wash. C. C. R. 546. A mere intention to remove,
unless such intention is carried into effect, is not sufficient. 5 Greenl.
R. 143. When he changes it, he acquires a domicil in the. place of his new
residence, and loses his original domicil. But upon a return with an
intention to reside, his original domicil is restored. 3 Rawle, 312; 1
Gallis. 274, 284; 5 Rob. Adm. R. 99.
9. How far a settlement in a foreign country will impress a hostile
character on a merchant, see Chitty's Law of Nations, 31 to 50; 1 Kent, Com.
74 to 80; 13 L. R. 296; 8 Cranch, 363; 7 Cranch, 506; 2 Cranch, 64 9 Cranch,
191; 1 Wheat. 46; 2 Wheat 76; 3 Wheat. 1 4 2 Gall. R. 268; 2 Pet. Adm. Dec.
438 1 Gall. R. 274. As to its effect in the administration of the assets of
a deceased non-resident, see 3 Rawle's R. 312; 3 Pick. R. 128; 2 Kent, Com.
348; 10 Pick. R. 77. The law of Louisiana relating to the "domicil and the
manner of changing the same" will be found in the Civil Code of Louisiana,
tit. 2, art. 42 to 49. See, also, 8 M. R. 709; 4 N. S. 51; 6 N. S. 467; 2 L.
R. 35; 4 L. R. 69; 5 N. S. 385 5 L. R. 332; 8 L. R. 315; 13 L. R. 297 11 L.
R. 178; 12 L. R. 190. See, on the subject generally, Bouv. Inst. Index, h.t.
2 Bos. & Pul. 230, note 1 Mason's Rep. 411; Toullier, Droit Civil
Francais, liv. 1, tit. 3, n., 362 a 378; Domat, tome 2, liv. 1, s. 3;
Pothier, Introduction Generale aux Coutumes, n. 8 a 20; 1 Ashm. R. 126;
Merl. Rep. tit. Domicile 3 Meriv. R. 79; 5 Ves. 786; 1 Crompt. & J. 151; 1
Tyrwh. R. 91; 2 Tyrwh. R. 475; 2 Crompt. & J. 436 3 Wheat. 14 3 Rawle, 312;
7 Cranch, 506 9 Cranch, 388; 5 Pick. 20; 1 Gallis, 274, 545; 10 Mass. 488 11
Mass. 424; 13 Mass. 501 2 Greenl. 411; 3 Greenl 229, 354; 4 Greenl. 47; 8
Greenl. 203; 5 Greenl. 143; 4 Mason, 308; 3 Wash. C. C. R. 546; 4 Wash. C.
C. R. 514 4 Wend, 602; 8 Wend. 134; 5 Pick. 370 10 Pick. 77; 11 Pick. 410; 1
Binn. 349, n.; Phil. on Dom. passim.
DOMINANT. estates. In the civil law, this term is used to signify the estate
to which a servitude or easement is due from another estate; for example,
where the owners of the estate, Blackacre, have a right of way or passage
over the estate Whiteacre, the former is called the dominant, and the latter
the servient estate. Bouv. Inst. n. 1600.
DOMINION. The right of the owner of a thing to use it or dispose of it at
his pleasure. See Domain; 1 White's New Coll. 85; Jacob's Intr. 39.
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DOMINIUM, empire, domain. It is of three kinds: 1, Directum dominium, or
usufructuary dominion; dominium utile, as between landlord and tenant; or,
2. It is to full property, and simple property. The former is such as
belongs to the cultivator of his own estate; the other is the property of a
tenant. 3. Dominion acquired by the law of nations, and dominion acquired by
municipal law. By the law of nations, property may be acquired by
occupation, by accession, by commixtion, by use or the pernancy of the
usufruct, and by tradition or delivery. As to the dominium eminens, the
right of the public, in cases of emergency, to seize upon the property of
individuals, and convert it to public use, and the right of individuals, in
similar cases, to commit a trespass on the persons and properties of others,
see the opinion of chief justice McKean in Respublica v. Sparhawk, 1 Dallas,
362, and the case of Vanhorn v. Dorrance, 2 Dall. Rep. 304. See, further, as
to dominium eminens, or the right of the community to take, at a fair price,
the property of individuals for public use, the supplement of 1802 to the
Pennsylvania compromising law, respecting the Wyoming controversy; also,
Vattel, l. 1, c. 20, Sec. 244-248; Bynkershoek, lib. 2, c. 15; Rousseau's
Social Compact, c. 9; Domat; l. 1, tit. 8, Sec. l, p. 381, fol. ed.; the
case of a Jew, whom the grand seignior was compelled by the mufti to
purchase out, cited in Lindsay et al. v. The Commissioners, 2 Bay. S. Car.
Rep. 41. See Eminent domain.
DOMITAE. Subdued, tame,. not wild; as, animals domitae, which are tame or
domestic animals.
DOMO REPARANDO. the name of an ancient writ in favor of a party who was in
danger of being injured by the fall, of his neighbor's house.
DONIS, STATUTE DE. The stat. West. 2, namely, 13 Edw. I. , c. 1, called the
statute de donis conditionalibus. This statute revives, in some sort, the
ancient feudal restraints, which were originally laid on alienations. 2 Bl.
Com. 12.
DONOR. He who makes a gift. (q.v.)
DOOM. This word formerly signified a judgment. T. L.
DORMANT PARTNER. One who is a participant in the profits of a firm, but his
name being concealed, his interest is not apparent. See Partners,
DOOR. The place of usual entrance in a house, or into a room in the house.
2. To authorize the breach of an outer door in order to serve process,
the process must be of a criminal nature; and even then a demand of
admittance must first have been refused. 5 Co. 93; 4 Leon. 41; T. Jones,
234; 1 N. H. Rep. 346; 10 John. 263; 1 Root, 83 , 134; 21 Pick. R. 156. The
outer door may also be broken open for the purpose of executing a writ of
habere facias. 5 Co. 93; Bac. Ab. Sheriff, N. 3.
3. An outer door cannot in general be broken for the purpose of serving
civil process; 13 Mass. 520; but after the defendant has been arrested, and
he takes refuge in his own house, the officer may justify breaking an outer
door to take him. Foster, 320; 1 Roll. R. 138; Cro. Jac. 555.; 10 Wend. 300;
6 Hill, N. Y. Rep. 597. When once an officer is in the house, he may break
open an inner door to make an arrest. Kirby, 386 5 John. 352; 17 John. 127,
See 1 Toull. n. 214, p. 88.
DOT. This French word is adopted in Louisiana. It signifies the fortune,
portion, or dowry, which a woman brings to her husband by the marriage. 6 N.
S. 460. See Dote; Dowry.
DOTAL PROPERTY. By the civil law, and in Louisiana, by this term is
understood that property, which the wife brings to the husband to assist him
in bearing the expenses of the marriage establishment. Civil Code of Lo.
art. 2315. Vide Extradotal property.
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DOTATION, French law. The act by which the founder of a hospital, or other
charity, endows it with property to fulfill its destination.
DOTE, Span. law. The property which the wife gives to the husband on account
of marriage.
2. It is divided into adventitia and profectitia; the former is the
dote which the father or grandfather, or other of the ascendants in the
direct paternal line, give of their own property to the husband; the latter
(adventitia) is that property which the wife gives to the husband, or that
which is given to him for her by her mother, or her collateral relations, or
a stranger. Aso & Man. Inst. B. 1, t. 7, c . 1, Sec. i.
DOTE ASSIGNANDO, Eng. law. The name of a writ which lay in favor of a widow,
when it was found by office that the king's tenant was seised of tenements
in fee or fee tail at the time of his death, and that he held of the king in
chief.
DOTE UNDE NIHIL HABET. The name of a writ of dower which a widow sues
against the tenant, who bought land of her husband in his lifetime, and in
which her dower remains, of which he was seised solely in fee simple or fee
tail. F. N. B. 147; Booth, Real Act. 166. See Dower unde nihil habet
DRAIN. Conveying the water from one place to another, for the purpose of
drying the former
2. The right of draining water through another map's land. This is an
easement or servitude acquired by grant or prescription. Vide 3 Kent, Com.
436 7 Mann. & Gr. 354; Jus aguaeductus; Rain water; Stillicidium.
DRAWBACK, com. law. An allowance made by the government to merchants on the
reexportation of certain imported goods liable to duties, which, in some
cases, consists of the whole; in others, of a part of the duties which had
been paid upon the importation. For the various acts of congress which
regulate drawbacks, see Story, L. U. S. Index, h.t.
DRAWEE. A person to whom a bill of exchange is addressed, and who is
requested to pay the amount of money therein mentioned.
2. The drawee may be only one person, or there may be several persons.
The drawee may be a third person, or a man may draw a bill on himself. 18
Ves. jr. 69; Carth. 509; 1 Show. 163; 3 Burr. 1077.
3. The drawee should accept or refuse to accept the bill at furthest
within twenty-four hours after presentment. 2 Smith's R. 243; 1 Ld. Raym.
281 Com. Dig. Merchant, F 6; Marius, 15; but it is said the holder is
entitled. to a definite answer if the mail go out in the meantime. Marius'
62. In case the bill has been left with the drawee for his acceptance, he
will be considered as having accepted it, if he keep the bill a great length
of time, or do any other act which gives credit to the bill, and induces the
holder not to protest it; or is intended as a surprise upon him, and to
induce him to consider the bill as accepted. Chit. on Bills, 227. When he
accepts it, it is his duty to pay it at maturity.
DRAWER, contracts. The party who makes a bill of exchange.
2. The obligations of the drawer to the drawee and every subsequent
holder lawfully entitled to the possession, are, that the person on whom he
draws is capable of binding himself by his acceptance that he is to be found
at the place where he is described to reside, if a description be given in
the bill; that if the bill be duly presented to him, he will accept in
writing on the bill itself, according to its tenor, and that he will pay it
when it becomes due, if presented in proper time for that purpose; and that
if the drawee fail to do either, he, the drawer, will pay the amount,
provided he have due notice of the dishonor. 3. The engagement of the drawer
of a bill is in all its parts absolute and irrevocable. 2 H. Bl. 378; 3 B. &
P. 291; Poth. Contr. de Change, n. 58; Chit. Bills, 214, Dane's Ab. h.t.
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DRAWING. A representation on paper, card, or other substance.
2. The Act of Congress of July 4, 1836, section 6, requires all persons
who apply for letters patent for an invention, to accompany their petitions
or specifications with a drawing or drawings of the whole, and written
references, when the nature of the case admits of drawings.
DREIT. The same as Droit. (q.v.)
DRIFTWAY. A road or way over which cattle are driven. 1 Taunt. R. 279; Selw.
N. P. 1037; Wool. on Ways, 1.
DRIP. The right of drip is an easement by which the water which falls on
one house is allowed to fall upon the land of another.
2. Unless the owner has acquired the right by grant or prescription, he
has no right so to construct his house as to let the water drip over his
neighbor's land. 1 Roll. Ab. 107. Vide Rain water; Stillicidium; and 3 Kent,
Com. 436; Dig. 43, 23, 4 et 6; 11 Ad. & Ell. 40; S. C. 39 E. C. L. R. 21.
DRIVER. One employed in conducting a coach, carriage, wagon, or other
vehicle, with horses, mules, or other animals.
2. Frequent accidents occur in consequence of the neglect or want of
skill of drivers of public stage coaches, for which the employers are
responsible.
3. The law requires that a driver should possess reasonable skill and
be of good habits for the journey; if, therefore, he is not acquainted with
the road he undertakes to drive; 3 Bingh. Rep. 314, 321; drives with reins
so loose that he cannot govern his horses; 2 Esp. R. 533; does not give
notice of any serious danger on the road; 1 Camp. R. 67; takes the wrong
side of the road; 4 Esp. R. 273; incautiously comes in collision with
another carriage; 1 Stark. R. 423; 1 Campb. R. 167; or does not exercise a
sound and reasonable discretion in travelling on the road, to avoid dangers
and difficulties, and any accident happens by which any passenger is
injured, both the driver and his employers will be responsible. 2 Stark. R.
37; 3 Engl. C. L. Rep. 233; 2 Esp. R. 533; 11. Mass. 57; 6 T. R. 659; 1
East, R. 106; 4 B. & A. 590; 6 Eng. C. L. R. 528; 2 Mc Lean, R. 157. Vide
Common carriers Negligence; Quasi Offence.
E.
E CONVERSO. On the other side or hand; on the contrary.
E PLURIBUS UNUM. One from more. The motto of the arms of the United States.
EAGLE, money. A gold coin of the United States, of the value of ten dollars.
It weighs two hundred and fifty-eight grains. Of one thousand parts, nine
hundred are of pure gold, and one hundred of all Act of January 18, 1837, 4
Sharsw. Cont. of Story's L. U. S. 2523, 4. Vide Money.
EAR-WITNESS. One who attests to things he has heard himself.
EARL, Eng. law. A title of nobility next below a marquis and above a
viscount.
2. Earls were anciently called comites, because they were wont comitari
regem, to wait upon the king for counsel and advice. He was also called
shireman, because each earl had the civil government of a shire.
3. After the Norman conquest they were called counts, whence the shires
obtained the names of counties. They have now nothing to do with the
government of counties, which has entirely devolved on the sheriff, the
earl's deputy, or vice comes.
EARLDOM. The seigniory of an earl; the title and dignity of an earl.
EARNEST, contracts. The payment of a part of the price of goods sold, or the
delivery of part of such goods, for the purpose of binding the contract.
2. The effect of earnest is to bind the goods sold, and upon their
being paid for without default, the buyer is entitled to them. But
notwithstanding the earnest, the money must be paid upon taking away the
goods, because no other time for payment is appointed; earnest only binds
the bargain, and gives the buyer a right to demand, but a demand without
payment of the money is void; after earnest given the vendor cannot sell the
goods to another, without a default in the vendee, and therefore if the
latter does not come and pay, and take the goods, the vendor ought to go and
request him, and then if he does not come, pay for the goods and take them
away in convenient time, the agreement is dissolved, and he is at liberty to
sell them to any other person. 1 Salk. 113: 2 Bl. Com. 447; 2 Kent, Com.
389; Ayl. Pand. 450; 3 Campb. R. 426.
EASEMENTS, estates. An easement is defined to be a liberty privilege or
advantage, which one man may have in the lands of another, without profit;
it may arise by deed or prescription. Vide 1 Serg. & Rawle 298; 5 Barn. &
Cr. 221; 3 Barn. & Cr. 339; 3 Bing. R. 118; 3 McCord, R. 131, 194; 2 McCord,
R. 451; 14 Mass. R. 49 3 Pick. R. 408.
2. This is an incorporeal hereditament, and corresponds nearly to the
servitudes or services of the civil law. Vide Lilly's Reg. h.t. 2 Bouv.
Inst. n. 1600, et seq.; 3 Kent, Com. 344: Cruise, Dig. t. 31, c. 1, s. 17; 2
Hill. Ab. c. 5; 9 Pick. R. 51; 1 Bail. R. 56; 5 Mass. R. 129; 4 McCord's R.
102; Whatl. on Eas. passim; and the article Servitude.
EASTER TERM, Eng. law. One of the four terms of the courts. It is now a
fixed term beginning on the 15th of April and ending the 8th of May in every
year. It was formerly a movable term.
ECCLESIA. In classical Greek this word signifies any assembly, and in this
sense it is used in Acts xix. 39. But ordinarily, in the New Testament, the
word denotes a Christian assembly, and is rendered into English by the word
church. It occurs thrice only in, the Gospels, viz. in Matt. xvi. 18, and
xviii. 17; but very frequently in the other parts of the New Testament,
beginning with Acts ii. 47. In Acts xix. 37, the word churches, in the
common English version, seems to be improperly used to denote heathen
temples. Figuratively, the word church is employed to signify the building
set apart for the Christian assemblies; but the word eclesia is not used in
the New Testament in that sense.
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EDICT. A law ordained by the sovereign, by which he forbids or commands
something it extends either to the whole country, or only to some particular
provinces.
2. Edicts are somewhat similar to public proclamations. Their
difference consists in this, that the former have authority and form of law
in themselves, whereas the latter are at most, declarations of a law, before
enacted by congress, or the legislature.
3. Among the Romans this word sometimes signified, a citation to appear
before a judge. The edict of the emperors, also called constitutiones
principum, were new laws which they made of their own motion, either to
decide cases which they had foreseen, or to abolish or change some ancient
laws. They were different from their rescripts or decrees. These edicts were
the sources which contributed to the formation of the Gregorian,
Hermogenian, Theodosian, and Justinian Codes. Vide Dig. 1, 4, 1, 1; Inst. 1,
2, 7; Code, 1, 1 Nov. 139.
EDICT PERPETUAL. The title of a compilation of all the edicts. This
collection was made by Salvius Julianus, a jurist who was, selected by the
emperor Adrian for the purpose, and who performed his task with credit to
himself.
EDICTS OF JUSTINIAN. These are thirteen constitutions or laws of that
prince, found in most editions of the corpus juris civilis, after the
Novels. Being confined to matters of police in the provinces of the empire,
they are of little use.
EFFECT. The operation of a law, of an agreement, or an act, is called its
effect.
2. By the laws of the United States, a patent cannot be granted for an
effect only, but it may be for a new mode or application of machinery to
produce effects. 1 Gallis. 478; see 4 Mason, 1; Pet. C. C. R. 394; 2 N. H.
R. 61.
ELECTION. This term, in its most usual acceptation, signifies the choice
which several persons collectively make of a person to fill an office or
place. In another sense, it means the choice which is made by a person
having the right, of selecting one of two alternative contracts or rights.
Elections, then, are of men or things.
2.-1. Of men. These are either public elections, or elections by
companies or corporations.
3.-1. Public elections. These should be free and uninfluenced either
by hope or fear. They are, therefore, generally made by ballot, except those
by persons in their representative capacities, which are viva voce. And to
render this freedom as perfect as possible, electors are generally exempted
from arrest in all cases, except treason, felony, or breach of the peace,
during their attendance on election, and in going to and returning from
them. And provisions are made by law, in several states, to prevent the
interference or appearance of the military on the election ground.
4. One of the cardinal principles on the subject of elections is, that
the person who receives a majority or plurality of votes is the person
elected. Generally a plurality of the votes of the electors present is
sufficient; but in some states a majority of all the votes is required. Each
elector has one vote.
5.-2. Elections by corporations or companies are made by the members,
in such a way its their respective constitutions or charters direct. It is
usual in these cases to vote a greater or lesser number of votes in
proportion as the voter has a greater or less amount of the stock of the
company or corporation, if such corporation or company be a pecuniary
institution. And the members are frequently permitted to vote by proxy. See
7 John. 287; 9 John. 147; 5 Cowen, 426; 7 Cowen, 153; 8 Cowen, 387; 6 Wend.
509; 1 Wend. 98.
6.-2. The election of things. 1. In contracts, when a; debtor is
obliged, in an alternative obligation, to do one of two things, as to pay
one hundred dollars or deliver one hundred bushels of wheat, he has the
choice to do the one or the other, until the time of payment; he has not the
choice, however, to pay a part in each. Poth. Obl. part 2, c. 3, art. 6, No.
247; 11 John. 59. Or, if a man sell or agree to deliver one of two articles,
as a horse or an ox, he has the election till the time of delivery; it being
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a rule that "in case an election be given of two several things, always be,
which is the first agent, and which ought to do the first act, shall have
the election." Co. Litt. 145, a; 7 John. 465; 2 Bibb, R. 171. On the failure
of the person who has the right to make his election in proper time, the
right passes to the opposite party. Co. Litt. 145, a; Viner, Abr. Election,
B, C; Poth. Obl. No. 247; Bac. Ab. h.t. B; 1 Desaus. 460; Hopk. R. 337. It
is a maxim of law, that an election once made and pleaded, the party is
concluded, electio semel facta, et placitum testatum, non patitur regressum.
Co. Litt. 146; 11 John. 241.
7.-2. Courts of equity have adopted the principle, that a person shall
not be permitted to claim under any instrument, whether it be a deed or
will, without giving full effect to it, in every respect, so far as such
person is concerned. This doctrine is called into exercise when a testator
gives what does not belong to him, but to some other person, and gives, to
that person some estate of his own; by virtue of which gift a condition is
implied, either that he shall part with his own estate or shall not take the
bounty. 9 Ves. 515; 10 Ves. 609; 13 Ves. 220. In such a case, equity will
not allow the first legatee to, insist upon that by which he would deprive
another legatee under the same will of the benefit to which he would be
entitled, if the first legatee permitted the whole will to operate, and
therefore compels him to make his election between his right independent of
the will, and the benefit under it. This principle of equity does not give
the disappointed legatee the right to detain the thing itself, but gives a
right to compensation out of something else. 2 Rop. Leg. 378, c. 23, s. 1.
In order to impose upon a party, claiming under a will, the obligation of
making an election, the intention of the testator must be expressed, or
clearly implied in the will itself, in two respects; first, to dispose of
that which is not his own; and, secondly, that the person taking the benefit
under the will should, take under the condition of giving effect thereto. 6
Dow. P. C. 179; 13 Ves. 174; 15 Ves. 390; 1 Bro. C. C. 492; 3 Bro. C. C.
255; 3 P. Wms. 315; 1 Ves. jr. 172, 335; S. C. 2 Ves. jr. 367, 371; 3 Ves.
jr. 65; Amb. 433; 3 Bro. P. C. by Toml. 277; 1 B. & Beat. 1; 1 McClel. R.
424, 489, 541. See, generally, on this doctrine, Roper's Legacies, c. 23;
and the learned notes of Mr. Swanston to the case Dillon v. Parker, 1
Swanst. R. 394, 408; Com. Dig. Appendix, tit. Election; 3 Desaus. R. 504; 8
Leigh, R. 389; Jacob, R. 505; 1 Clark & Fin. 303; 1 Sim. R. 105; 13 Price,
R. 607; 1 McClel. R. 439; 1 Y. & C. 66; 2 Story, Eq. Jur. Sec. 1075 to 1135;
Domat, Lois Civ. liv. 4, tit. 2, Sec. 3, art. 3, 4, 5; Poth. Pand. lib. 30,
t. 1, n. 125; Inst. 2, 20, 4; Dig. 30, 1, 89, 7.
8. There are many other cases where a party may be compelled to make an
election, which it does not fall within the plan of this work to consider.
The reader will easily inform himself by examining the works above referred
to.
9.-3. The law frequently gives several forms of action to the injured
party, to enable him to recover his rights. To make a proper election of the
proper remedy is of great importance. To enable the practitioner to make the
best election, Mr. Chitty, in his valuable Treatise on Pleadings, p. 207, et
seq., has very ably examined the subject, and given rules for forming a
correct judgment; as his work is in the hands of every member of the
profession, a reference to it here is all that is deemed necessary to say on
this subject. See also, Hammond on Parties to Actions; Brown's Practical
Treatise on Actions at Law, in the 45th vol. of the Law Library; U. S. Dig.
Actions IV.
ELECTION OF ACTIONS, practice. It is frequently at the choice of the
plaintiff what kind of an action to bring; a skillful practitioner would
naturally select that in which his client can most easily prove what is his
interest in the matter affected; may recover all his several demands against
the defendant; may preclude the defendant from availing himself of a
defence, which be might otherwise establish; may most easily introduce his
own evidence; may not be embarrassed by making too. many or too few persons
parties to the suit; may try it in the county most convenient to himself;
may demand bail where it is for the plaintiff's interest; may obtain a
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judgment with the least expense and delay; may entitle himself to costs; and
may demand bail in error. 1 Chit. Pl. 207 to 214.
2. It may be laid down as a general rule, that when a statute
prescribes a new remedy, the plaintiff has his election either to adopt such
remedy, or proceed at common law. Such statutory remedy is cumulative,
unless the statute expressly, or by necessary implication takes away the
Common law remedy. 1 S. & R. 32; 6 S. & R. 20; 5 John. 175; 10 John. 389; 16
John. 220; 1 Call, 243; 2 Greenl. 404; 5 Greenl. 38; 6 Harr. & John. 383; 4
Halst. 384; 3 Chit. Pr. 130.
ELECTION OF A DEVISE OR LEGACY. It is an admitted principle, that a person
shall not be permitted to claim under any instrument, whether it be a deed
or a will, without giving full effect to it in every respect, so far as such
person is concerned. When a testator, therefore, gives what belongs to
another and not to him, and gives to the owner some estate of his own; this
gift is under an implied condition, either that he shall part with his own
estate, or not take the bounty. 9 Ves. 615; 10 Ves. 609; 13 Ves. 220; 2 Ves.
697; 1 Suppl. to Ves. jr. 222; Id. 55; Id. 340. If, for example, a testator
undertakes to dispose of an estate belonging to B, and devise to B other
lands, or bequeath to him a legacy by the same will, B will not be permitted
to keep his own estate, and enjoy at the same time the benefit of the devise
or bequest made in his favor, but must elect whether he will part with his
own estate, and accept the provisions in the will, or continue in possession
of the former and reject the latter. See 2 Vern. 5.81; Forr. 176; 1 Swanst.
436, 447 1 Rro. C. C. 480; 2 Rawle, 168; 17 S. & R. 16 2 Gill, R. 182, 201;
1 Dev. Eq. R. 283; 3 Desaus. 346; 6 John. Ch. R. 33; Riley, Ch. R. 205; 1
Whart. 490; 5 Dana, 345; White's L. C. in Eq. *233.
2. The foundation of the equitable doctrine of election, is the
intention, explicit or presumed, of the author of the instrument to which it
is applied, and such is the, import of the expression by which it is
described as proceeding, sometimes on a tacit, implied, or constructive
condition, sometimes on equity. See Cas. temp. Talb. 183; 2 Vern. 582; 2
Ves. 14; 1 Eden, R. 536; 1 Ves. 306. See, generally, 1 Swan. 380 to 408,
414, 425, 432, several very full notes.
3. As to what acts of acceptance or acquiescence will constitute an
implied election, see 1 Swan. R. 381, n. a; and the cases there cited.
ELECTOR, government. One who has the right to make choice of public officers
one, who has a right to vote.
2. The qualifications of electors are generally the same as those
required in the person to be elected; to this, however, there is one
exception; a naturalized citizen may be an elector of president of the
United States, although he could not constitutionally be elected to that
office.
ELECTORS OF PRESIDENT. Persons elected by the people, whose sole duty is to
elect a president and vice-president of the U. S.
2. The Constitution provides, Am. art. 12, that "the electors shall
meet in their respective states, and vote by ballot for president and vice-
president, one of whom at least shall not be an inhabitant of the same state
with themselves; they shall name in their ballots the person voted for as
president, and in distinct ballots the person voted for as vice-president;
and they shall make distinct lists of all persons voted fur as president,
and of all persons voted for as vice-president, and of the number of votes
for each; which list they shall sign and certify, and transmit, sealed, to
the seat of the government of the United States, directed to the president
of the senate; the president of the senate shall, in the presence of the
senate and the house of representatives, open all the certificates, and the
votes shall then be counted; the person having the greatest number of, votes
for president, shall be the president, if such number be the majority of the
whole number of electors appointed; and if no, person have such majority,
then from the persons having the highest numbers, not exceeding three, on
the list of those voted for as president, the house of representatives shall
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choose immediately, by ballot, the president. But in choosing the president,
the votes shall be taken by states, the representation from each state
having one vote; a quorum, for this purpose, shall consist of a member or
members from two-thirds of the states, and a majority of all the states
shall be necessary to a choice. And if the house of representatives shall
not choose a president whenever the right of choice shall devolve upon them,
before the fourth day of March next following, then the vice-president shall
act as president, as in the case of the death or other constitutional
disability of the president.
3.-2. "The person having the greatest number of votes as vice-
president shall be vice-president, if such number be a majority of the whole
number of electors appointed and if no person have a majority, them from the
two highest numbers on the list, the senate shall choose the vice-president;
a quorum for the purpose shall consist of two-thirds of the whole number of
senators, and a majority of the whole number shall be necessary to a choice.
But no person constitutionally ineligible to the office of president, shall
be eligible to that of vice-president of the United States." Vide 3 Story,
Const. Sec. 1448 to 1470.
ELEEMOSYNARY. Charitable alms-giving.
2. Eleemosynary corporations are colleges, schools, and hospitals. 1
Wood. Lect. 474; Skinn. 447 1 Lord Raym. 5 2 T. R. 346.
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ELL. A measure of length. In old English the word signifies arm, which sense
it still retains in the word elbow. Nature has no standard of measure. The
cubit, the ell, the span, palm, hand, finger, (being taken from the
individual who uses them) varies. So of the foot, pace, mile, or mille
passuum. See Report on Weights and Measures, by the Secretary of State of
the United. States, Feb. 22, 1821; Fathom.
ELOIGNE, practice. This word signifies, literally, to remove to a distance;
to remove afar off. It is used as a return to a writ of replevin, when the
chattels have been removed out of the way of the sheriff. Vide Elongata.
ELONGATA, practice. There turn made by the sheriff to a writ of replevin,
when the goods have been removed to places unknown to him. See, for the form
of this return, Wats. Sher. Appx. c. 18, s. 3, p. 454; 3 Bl. Com. 148.
2. On this return the plaintiff is entitled to a capias in withernam.
Vide Withernam, and Wats. Sher. 300, 301. The word eloigne, (q.v.) is
sometimes used as synonymous with elongata.
ELOPEMENT. This term is used to denote the departure of a married woman from
her husband, and dwelling with an adulterer.
2. While the wife resides with her husband, and cohabits with him,
however exceptionable her conduct may be, yet he is bound to provide her
with necessaries, and to pay for them; but when she elopes, the husband is
no longer liable for her alimony, and is not bound to pay debts of her
contracting when the separation is notorious; and whoever gives her credit
under these circumstances, does so at his peril. Chit. Contr. 49; 4 Esp. R.
42; 3 Pick. R. 289; 1 Str. R. 647, 706; 6 T. R. 603; 11 John. R. 281; 12
John. R. 293; Bull. N. P. 135; Stark. Ev. part 4, p. 699.
ELOQUENCE OR ORATORY. The act or art of speaking well upon any subject with
a view to persuade. It comprehends a good elocution, correct and appropriate
expressions uttered. with fluency, animation and suitable action. The
principal rules of the art, which must be sought for in other works, are
summarily expressed in the following lines:
" Be brief, be pointed; let your matter stand
Lucid in order, solid, and at hand;
Spend not your words on trifles, but condense;
Strike with the mass of thoughts, not drops of sense;
Press to the close with vigor once begun,
And leave, (how hard the task!) leave off when done;
Who draws a labor'd length of reasoning out,
Put straws in lines for winds to whirl about;
Who draws a tedious tale of learning o'er,
Counts but the sands on ocean's boundless shore;
Victory in law is gain'd as battle's fought,
Not by the numbers, but the forces brought;
What boots success in skirmishes or in fray,
If rout and ruin following close the day?
What worth a hundred Posts maintained with skill,
If these all held, the foe is victor still?
He who would win his cause, with power must frame
Points of support, and look with steady aim:
Attack the weak, defend the strong with art,
Strike but few blows, but strike them to the heart;
All scatter'd fires but end in smoke and noise,
The scorn of men, the idle play of boys.
Keep, then, this first great precept ever near,
Short be your speech, your matter strong and clear,
Earnest your manner, warm and rich your style,
Severe in taste, yet full of grace the while;
So may you reach the loftiest heights of fame,
And leave, when life is past, a deathless name."
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ELSEWHERE. In another place.
2. Where one devises all his land in A, B and C, three distinct towns,
and elsewhere, and had lands of much greater value than those in A, B and C,
in another county, the lands in the other county were decreed to pass by the
word elsewhere; and by Lord Chancellor King, assisted by Raymond, Ch. J.,
and other judges, the word elsewhere, was adjudged to be the same as if the
testator had said he devised all his lands in the three towns particularly
mentioned, or in any other place whatever. 3 P. Wms. 5 6. See also Prec.
Chan. 202; 2 Vern. 461; 2 Vern. 560; 3 Atk. 492; Cowp. 860; Id. 808; 2 Barr.
912; 5 Bro. P. C. 496; S. C. 1 East, 456; 1 Vern. 4 n.
3.-2. As to the effect of the word elsewhere, in the case of lands
not purchased at the time of making the will, see 3 Atk. 254; 2 Vent. 351.
Vide Alibi.
EMANCIPATION. An act by which a person, who was once in the power of
another, is rendered free. B y the laws of Louisiana, minors may be
emancipated. Emancipation is express or implied.
2. Express emancipation. The minor may be emancipated by his father,
or, if be has no father, by his mother, under certain restrictions. This
emancipation takes place by the declaration, to that effect, of the father
or mother, before a notary public, in the presence of two witnesses. The
orphan minor may, likewise, be emancipated by the judge, but not before he
has arrived at the full age of eighteen years, if the family meeting, called
to that effect, be of opinion that he is able to administer his property.
The minor may be emancipated against the will of his father and mother, when
they ill treat him excessively, refuse him support, or give him corrupt
example.
3. The marriage of the minor is an implied emancipation.
4. The minor who is emancipated has the full administration of his
estate, and may pass all act's which may be confined to such administration;
grant leases, receive his revenues and moneys which may be due him, and give
receipts for the same. He cannot bind himself legally, by promise or
obligation, for any sum exceeding the amount of one year of his revenue.
When he is engaged in trade, he is considered as leaving arrived to the age
of majority, for all acts which have any relation to such trade.
5. The emancipation, whatever be the manner in. which it may have been
effected, may be revoked, whenever the minor contracts engagements which
exceed the limits prescribed by law.
6. By the English law, filial emancipation is recognized, chiefly, in
relation to the parochial settlement of paupers. See 3 T. R. 355; 6 T. R.
247; 8 T. R. 479; 2 East, 276; 10 East, 88.; 11 Verm. R. 258, 477. See
Manumission. See Coop. Justin. 441, 480; 2 Dall. Rep. 57, 58; Civil Code of
Louisiana, B. 1, tit. 8, c. 3; Code Civ. B. 1, tit. 10, c. 2; Diet. de
Droit, par Ferriere; Diet. de Jurisp. art. Emancipation.
EMBARGO, maritime law. A proclamation, or order of state, usually issued in
time of war, or threatened hostilities, prohibiting the departure of ships
or goods from some, or all the ports of such state, until further order. 2
Wheat. 148.
2. The detention of ships by an embargo is such an injury to the owner
as to entitle him to recover on a policy of insurance against "arrests or
detainments." And whether the embargo be legally or illegally laid, the
injury to the owner is the same; and the insurer is equally liable for the
loss occasioned by it. Marsh. Ins. B. 1, c. 12, s. 5; 1 Kent, Com. 60 1
Bell's Com. 517, 5th ed.
3. An embargo detaining a vessel at the port of departure, or in the
course of the voyage, does not, of itself, work a dissolution of a charter
party, or the contract with the seamen. It is only a temporary restraint
imposed by authority for legitimate political purposes, which suspends, for
a time, the performance of such contracts, and leaves the rights of parties
untouched, 1 Bell's Com. 517; 8 T. R. 259; 5 Johns. R. 308; 7 Mass. R. 325,
3 B. & P. 405-434; 4 East, R. 546-566.
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EMBEZZLEMENT, crim. law. The fraudulently removing and secreting of personal
property, with which the party has been entrusted, for the purpose of
applying it to his own use.
2. The Act of April 30, 1790, s. 16, 1 Story, L. U. S. 86, provides,
that if any person, within any of the laces under the sole and exclusive
jurisdiction of the United States, or upon the high seas, shall take and
carry away, with an intent to steal or purloin, the personal goods of
another; or if any person or persons, having, at any time hereafter, the
charge or custody of any arms, ordnance, munition, shot, powder, or
habiliments of war, belonging to the. United States, or of any victuals
provided for the victualling of any soldiers, gunners, marines, or pioneers,
shall, for any lucre or gain, or wittingly, advisedly, and of purpose to
hinder or impede the service of the United States, embezzle, purloin, or
convey away, any of the said arms, ordnance, munition, shot or powder,
habiliments of war, or victuals, that then, and in every of the cases
aforesaid, the persons so offending, their counsellors, aiders and abettors,
(knowing of, and privy to the offences aforesaid,) shall, on conviction, be
fined, not exceeding the fourfold value of the property so stolen, embezzled
or purloined the one moiety to be paid to the owner of the goods, or the
United States, as the case may be, and the other moiety to the informer and
prosecutor, and be publicly whipped, not exceeding thirty-nine stripes.
3. The Act of April 20, 1818, 3 Story, 1715, directs that wines and
distilled spirits shall, in certain cases, be deposited in the public
warehouses of the United States, and then it is enacted, s. 5, that if any
wines, or other spirits, deposited under the provisions of this act, shall
be embezzled, or fraudulently hid or removed, from any store or place
wherein they shall have been deposited, they shall be forfeited, and the
person or persons so embezzling, hiding, or removing the same, or aiding or
assisting therein, shall be liable to the same pains and penalties as if
such wines or spirits had been fraudulently unshipped or landed without
payment of duty.
4. By the 21st section of the act to reduce into one the several acts
establishing and regulating the post-office, passed March 3, 1825, 3 Story,
1991, the offence of embezzling letters is punished with fine and
imprisonment. Vide Letter.
5. The act more effectually to provide for the punishment of certain
crimes against the United States, and for other purposes, passed March 3,
1825, s. 24, 3 Story, 2006, enacts, that if any of the gold or silver coins
which shall be struck or coined at the mint of the United States, shall be
debased, or made worse, as to the proportion of fine gold or fine silver
therein contained, or shall be of less weight or value than the same ought
to be, pursuant to the several acts relative thereto, through the default or
with the connivance of any of the officers or persons who shall be employed
at the said mint, for the purpose of profit or gain, or otherwise, with a
fraudulent intent and if any of the said officers or persons shall embezzle
any of the metals which shall, at any time, be committed to their charge for
the purpose of being coined; or any of the coins which shall be struck or
coined, at the said mint; every such officer, or person who shall commit
any, or either, of the said offences, shall be deemed guilty of felony, and
shall be sentenced to imprisonment and hard labor for a term not less than
one year, nor more than ten years, and shall be fined in a sum not exceeding
ten thousand dollars.
6. When an embezzlement of a part of the cargo takes place on board of
a ship, either from the fault, fraud, connivance or negligence of any of the
crow, they are bound to contribute to the reparation of the loss, in
proportion to their wages. When the embezzlement is fixed on any individual,
he is solely responsible; when it is made by the crew, or some of the crew,
but the particular offender is unknown, and from the circumstances of the
case, strong presumptions of guilt apply to the whole crew, all must
contribute. The presumption of innocence is always in favor of the crew, and
the guilt of the parties must be established, beyond all reasonable doubt,
before they can be required to contribute. 1 Mason's R. 104; 4 B. & P. 347;
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3 Johns. Rep. 17; 1 Marsh. Ins. 241; Dane's Ab. Index, h.t.; Wesk. Ins.
194; 3 Kent, Com., 151; Hardin, 529.
EMBLEMENTS, rights. By this term is understood the crops growing upon the
land. By crops is here meant the products of the earth which grow yearly and
are raised by annual expense and labor, or "great manurance and industry,"
such as grain; but not fruits which grow on trees which are not to be
planted yearly, or grass, and the like, though they are annual. Co. Litt.
55, b; Com. Dig. Biens, G; Ham. Part. 183, 184.
2. It is a general rule, that when the estate is terminated by the act
of God in any other way than by the death of the tenant for life, or by act
of the law, the tenant is entitled to the enablements; and when he dies
before harvest time, his executors shall have the emblements, as a return
for the labor and expense of the deceased in tilling the ground. 9 Johns. R.
112; 1 Chit. P. 91: 8 Vin. Ab. 364 Woodf. L. & T. 237 Toll. Ex. book 2, c.
4; Bac. Ab Executors, H 3; Co. Litt. 55; Com. Dig. Biens G.; Dane's Ab.
Index, h.t.; 1 Penna. R. 471; 3 Penna. 496; Ang. Wat. Co. 1 Bouv. Inst.
Index, h.t.
EMBRACEOR, criminal law. He who, when a matter is on trial between party and
party, comes to the bar with one of the parties, and having received some
reward so to do, speaks in the case or privily labors the jury, or stands
there to survey or overlook them, thereby to put them in fear and doubt of
the matter. But persons learned in the law may speak in a case for their
clients. Co. Litt. 369; Terms de la Ley. A person who is guilty of
embracery. (q.v.)
EMBRACERY, crim. law. An attempt to corrupt or influence a jury, or any way
incline them to be more favorable to the one side than to the other, by
money, promises, threats, or persuasions; whether the juror on whom such
attempt is made give any verdict or not, or whether the Verdict be true or
false. Hawk. 259; Bac. Ab. Juries, M 3; Co. Litt. 157, b, 369, a; Hob. 294;
Dy. 84, a, pl. 19; Noy, 102; 1 Str. 643; 11 Mod. 111, 118; Com. 601; 5
Cowen, 503.
EMENDALS, Eng. law. This ancient word is said to be used in the accounts of
the inner temple, where so much in emendals at the foot of an account
signifies so much in bank, in stock, for the supply of emergencies. Cunn.
Law Dict.
EMIGRANT. One who quits his country for any lawful reason, with a design to
settle elsewhere, and who takes his family and property, if he has any, with
him. Vatt. b. 1, c. 19, Sec. 224.
EMIGRATION. The act of removing from one place to another. It is sometimes
used in the same sense as expatriation, (q.v.) but there is some difference
in the signification. Expatriation is the act of abandoning one's country,
while emigration is, perhaps not strictly, applied to the act of removing
from one part of the country to another. Vide 2 Kent, Com. 36.
EMINENCE; A title of honor given to cardinals.
EMINENT DOMAIN. The right which people or government retain over the estates
of individuals, to resume the same for public use.
2. It belongs to the legislature to decide what improvements are of
sufficient importance to justify the exercise of the right of eminent
domain. See 2 Hill. Ab. 568 1 U. S. Dig. 560; 1 Am. Eq. Dig. 312 3 Toull. n.
30 p. 23; Ersk. hist. B. 2) tit. 1, s. 2; Grotius, h.t. See Dominium.
EMISSARY. One who is sent from one power or government into another nation
for the purpose of spreading false rumors and to cause alarm. He differs
from a spy. (q.v.)
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EMISSION, med. jur. The act by which any matter whatever is thrown from the
body; thus it is usual to say, emission of urine, emission of semen, &c.
2. In cases of rape, when the fact of penetration is proved, it may be
left to the jury whether emission did or did not take place. Proof of
emission would perhaps be held to be evidence of penetration. Addis. R. 143;
2 So. Car. Const. R. 351; 2 Chitty, Crim. Law, 810; 1 Beck's Med. Jur. 140 1
Russ. C. & M. 560; 1 East, P. C. 437.
EMPEROR, an officer. This word is synonymous with the Latin imperator; they
are both derived from the. verb imperare. Literally, it signifies he who
commands.
2. Under the Roman republic, the title emperor was the generic name
given to the commanders-in-chief in the armies. But even then the
application of the word was restrained to the successful commander, who was
declared emperor by the acclamations of the army, and was afterwards honored
with the title by a decree of the senate. 3. It, is now used to designate
some sovereign prince who bears this title. Ayl. Pand. tit. 23.
ENTRY, commercial law. The act of setting down the particulars of a sale, or
other transaction, in a merchant's or tradesman's account books; such
entries are, in general, prima facie evidence of the sale and delivery, and
of work, done; but unless the entry be the original one, it is not evidence.
Vide Original entry.
ENTRY AD COMMUNE LEGEM, Eng. law. The name of a writ which lies in favor of
the reversioner, when the tenant for term of life, tenant for term of
another's life, tenant by the curtesy, or tenant in dower, aliens and dies.
T. L.
ENTRY, WRIT OF. The name of a writ issued for the purpose of obtaining
possession of land from one who has entered unlawfully, and continues in
possession. This is a mere possessor action, and does not decide the right
of property.
2. The writs of entry were commonly brought, where the tenant or
possessor of the land entered lawfully; that is, without fraud or force; 13
Edw. I. c. 25; although sometimes they were founded upon an entry made by
wrong. The forms of these writs are very various, and are adapted to the,
title and estate of the demandant. Booth enumerates and particularly
discusses twelve varieties. Real Actions, pp. 175-200. In general they
contain an averment of the manner in which the defendant entered. At the
common law these actions could be brought only in the degrees, but the
Statute of Marlbridge, c. 30; Rob. Dig. 147, cited as c. 29; gave a writ
adapted to cases beyond the degrees, called a writ of entry in the post.
Booth, 172, 173. The denomination of these writs by degrees, is derived from
the circumstance that estates are supposed by the law to pass by degrees
from one person to another, either by descent or purchase. Similar to this
idea, or rather corresponding with it, are the gradations of consanguinity,
indicated by the very common term pedigree. But in reference to the writs of
entry, the degrees recognized were only two, and the writs were quaintly
termed writs in the per, and writs in the per and cui. Examples of these
writs are given in Booth on R. A. pp. 173, 174. The writ in the, per runs
thus: "Command A, that be render unto B, one messuage, &c., into which he
has not entry except (per) by &c. The writ in the per and cui contains
another gradation in the transmission of the estate, and read thus: Command
A, that he render, &c., one messuage, into which he hath not entry but (per)
by C, (cui) to whom the aforesaid B demised it for a term of years, now
expired," &c. 2 Institute, 153; Co. Litt. b, 239, a. Booth, however, makes
three degrees, by accounting the estate in the per, the second degree. The
difference is not substantial. If the estate had passed further, either by
descent or conveyance, it was said to be out of the degrees, and to such
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cases the writ of entry on the. statute of Marlbridge, only, was applicable.
3 Bl. Com. 181, 182; Report of Com. to Revise Civil Code of Penna. January
15, 1835, p. 85. Vide Writ of entry.
TO ENURE. To take, or have effect or serve to the use, benefit, or advantage
of a person. The word is often written inure. A release to the tenant for
life, enures to him in reversion; that is, it has the same effect for him as
for the tenant for life. A discharge of the principal enures to the benefit
of the surety.
ENVOY, international law. In diplomatic language, an envoy is a minister of
the second rank, on whom his sovereign or government has conferred a degree
of dignity and respectability, which, without being on a level with an
ambassador, immediately follows, and among ministers, yields the preeminence
to him alone.
2. Envoys are either ordinary or extraordinary; by custom the latter is
held in greater consideration. Vattel, liv. 4, c. 6, Sec. 72.
EPILEPSY, med. jur. A disease of the brain, which occurs in paroxysms, with
uncertain intervals between them.
2. These paroxysms are characterized by the loss of sensation, and
convulsive motions of the muscles. When long continued and violent, this
disease is very apt to end in dementia. (q.v.) It gradually destroys the
memory, and impairs the intellect, and is one of the causes of an unsound
mind. 8 Ves. 87. Vide Dig. 50, 16, 123; Id. 21, 1, 4, 5.
EPISCOPACY, eccl. law. A form of government by diocesan bishops; the office
or condition of a bishop.
EPISTLES, civil law. The name given to a species of rescript. Epistles were
the answers given by the prince, when magistrates submitted to him a
question of law. Vicle Rescripts.
EQUALITY. Possessing the same rights, and being liable to the same duties.
See 1 Toull. No. l70, 193, Int.
2. Persons are all equal before the law, whatever adventitious
advantages some may possess over others. All persons are protected by the
law, and obedience to it is required from all.
3. Judges in court, while exercising their functions, are all upon an
equality, it being a rule that inter pares non est potestas; a judge cannot,
therefore, punish another judge of the same court for using any expression
in court, although the words used might have been a contempt in any other
person. Bac. Ab., Of the court of sessions, of justices of the peace.
4. In contracts the law presumes the parties act upon a perfect
equality; when, therefore, one party uses any fraud or deceit to destroy
this equality, the party grieved may avoid the contract. In case of a grant
to two or more persons jointly, without designating what each takes, they
are presumed to take in equal proportion. 4 Day, 395.
5. It is a maxim, that when the equity of the parties is equal, the law
must prevail. 3 Call, R. 259. And that, as between different creditors,
equality is equity. 4 Bouv. Inst. n. 3725; 1 Page, R. 181. See Kames on Eq.
75. Vide Deceit; Fraud.
EQUINOX. The name given to two periods of the year when the days and nights
are equal; that is, when the space of time between the rising and setting of
the sun is one half of a natural day. Dig. 43, 13, 1, 8. Vide Day.
EQUITABLE. That which is in conformity to the natural law. Wolff, Inst. Sec.
83.
EQUITY. In the early history of the law, the sense affixed to this word was
exceedingly vague and uncertain. This was owing, in part, to the fact, that
the chancellors of those days were either statesmen or ecclesiastics,
perhaps not very scrupulous in the exercise of power. It was then asserted
that equity was bounded by no certain limits or rules, and that it was alone
controlled by conscience and natural justice. 3 Bl. Com. 43-3, 440, 441.
2. In a moral sense, that is called equity which is founded, ex oequo
et bono, in natural justice, in honesty, and in right. In an enlarged. legal
view, "equity, in its true and genuine meaning, is the soul and spirit of
the law; positive law is construed, and rational law is made by it. In this,
equity is made synonymous with justice; in that, to the true and sound
interpretation of the rule." 3 Bl. Com. 429. This equity is justly said to
be a supplement to the laws; but it must be directed by science. The Roman
law will furnish him with sure guides, and safe rules. In that code will be
found, fully developed, the first principles and the most important
consequences of natural right. "From the moment when principles of decision
came to be acted upon in chancery," says Mr. Justice Story, "the Roman law
furnished abundant materials to erect a superstructure, at once solid,
convenient and lofty, adapted to human wants, and enriched by the aid of
human wisdom, experience and learning." Com. on Eq. Jur. Sec. 23 Digest, 54.
3. But equity has a more restrained and qualified meaning. The remedies
for the redress of wrongs, and for the enforcement of rights, are
distinguished into two classes, first, those which are administered in
courts of common law; and, secondly, those which are administered in courts
of equity. Rights which are recognized and protected, and wrongs which are
redressed by the former courts, are called legal rights and legal injuries.
Rights which are recognized and protected, and wrongs which are redressed by
the latter courts only, are called equitable rights and equitable injuries
The former are said to be rights and wrongs at common law, and the remedies,
therefore, are remedies at common law; the latter are said to be rights and
wrongs in equity, and the remedies, therefore, are remedies in equity.
Equity jurisprudence may, therefore, properly be said to be that portion of
remedial justice which is exclusively administered by a court of equity, as
contradistinguished from that remedial justice, which is exclusively
administered by a court of law. Story, Eq. Sec. 25. Vide Chancery, and the
authorities there cited; and 3 Chit. Bl. Com. 425 n. 1. Dane's Ab. h.t.;
Ayl. Pand. 37; Fonbl. Eq. b. 1, c. 1; Wooddes. Lect. 114 Bouv. Inst. Index,
h.t.
EQUITY, COURT OF. A court of equity is one which administers justice, where
there are no legal rights, or legal rights, but courts of law do not afford
a complete, remedy, and where the complainant has also an equitable right.
Vide Chancery.
EQUITY OF REDEMPTION. A right which the mortgagee of an estate has of
redeeming it, after it has been forfeited at law by the non-payment at, the
time appointed of the money secured by the mortgage to be paid, by paying
the amount of the debt, interest and costs.
2. An equity of redemption is a mere creature of a court of equity,
founded on this principle, that as a mortgage is a pledge for securing the
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repayment of a sum of money to the mortgagee, it is but natural justice to
consider the ownership of the land as still vested in the mortgagor, subject
only to the legal title of the mortgagee, so far as such legal title is
necessary to his security.
3. In Pennsylvania, however, redemption is a legal right. 11 Serg. &
Rawle, 223.
4. The phrase equity of redemption is indiscriminately, though perhaps
not correctly applied, to the right of the mortgagor to regain his estate,
both before and after breach of condition, In North Carolina by statute the
former is called a legal right of redemption; and the latter the equity of
redemption, thereby keeping a just distinction between these estates. 1 N.
C. Rev. St. 266; 4 McCord, 340.
5. Once a mortgage always a mortgage, is a universal rule in equity.
The right of redemption is said to be as inseparable from a mortgage, as
that of replevying from a distress, and every attempt to limit this right
must fail. 2 Chan. Cas. 22; 1 Vern. 33, 190; 2 John. Ch. R. 30; 7 John. Ch.
R. 40; 7 Cranch, R. 218; 2 Cowen, 324; 1 Yeates, R. 584; 2 Chan. R. 221; 2
Sumner, R. 487.
6. The right of redemption exists, not only in the mortgagor himself,
but in his heirs, and personal representatives, and assignee, and in every
other person who has an interest in, or a legal or equitable lien upon the
lands; and therefore a tenant in dower, a jointress, a tenant by the
curtesy, a remainder-man and a reversioner, a judgment creditor, and every
other incumbrancer, unless he be an incumbrancer pendente lite, may redeem.
4 Kent, Com. 156; 5 Pick. R. 149; 9 John. R. 591, 611; 9 Mass. R. 422; 2
Litt. R. 334; 1 Pick. R. 485; 14 Wend. R. 233; 5 John. Ch. R. 482; 6 N. H.
Rep. 25; 7 Vin. Ab. 52. Vide, generally, Cruise, Dig. tit. 15, c. 3; 4 Kent,
Com. 148; Pow. on Mortg. eh. 10 and 11; 2 Black. Com. 158; 13 Vin. Ab. 458;
2 Supp. to Ves. Jr. 368; 2 Jac. & Walk. 194, n.; 1 Hill. Ab. c. 31; and
article Stellionate.
EQUIVALENT. Of the same value. Sometimes a condition must be literally
accomplished in forma specifica; but some may be fulfilled by an equivalent,
per oequi polens, when such appears to be the intention of the parties; as,
I promise to pay you one hundred dollars, and then die, my executor may
fulfill my engagement; for it is equivalent to you whether the money be paid
to you b me or by him. Roll. Ab. 451; 1 Bouv. Inst. n. 760.
ESPLEES. The products which the land or ground yields; as the hay of the
meadows, the herbage of the pasture, corn or other produce of the arable,
rents and services. Termes de la Ley; see 11 Serg. & R. 2-5; Dane's Ab.
Index, h.t.
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EXAMINERS, practice. Persons appointed to question students of law, in order
to ascertain their qualifications before they are admitted to practice.
Officers in the courts of chancery whose duty it is to examine witnesses,
are also called examiners. Com. Dig. Chancery, P 1. For rules as to the mode
of taking examinations, see Gresl. Eq. Ev. pt. 1, c, 3, s. 2.
EXAMPLE. An example is a case put to illustrate a. principle. Examples
illustrate, but do not restrain or change the laws: illustrant non
restringunt legem. Co. Litt. 24, a.
EXCAMBIATOR. The name of an exchanger of lands; a broker. This term is now
obsolete.
EXCAMBIUM. Exchange. (q.v.)
EXCEPTIO REI JUDICATAE, civil law. The name of a plea by which the defendant
alleges that the matter in dispute between the parties has been before
adjudged. See Res judicata.
EXCEPTION, Eng. Eq. practice. Re-interrogation. 2 Benth. Ev. 208, n.
EXCEPTION, legislation, construction. Exceptions are rules which limit the
extent of other more general rules, and render that just and proper, which
would be, on account of its generality, unjust and improper. For example, it
is a general rule that parties competent may make contracts; the rule that
they shall not make any contrary to equity, or contra bonos mores, is the
exception.
EXCEPTION, contracts. An exception is a clause in a deed,. by which the
lessor excepts something out of that which he granted before by the deed.
2. To make a valid exception, these things must concur: 1. The
exception must be by apt words; as, saving and excepting, &c. 2. It must be
of part of the thing previously described, and not of some other thing. 3.
It must be part of the thing only, and not of all, the greater part, or the
effect of the thing granted; an exception, therefore, in a lease, which
extends to the whole thing demised, is void. 4. It must be of such thing as
is severable from the demised premises, and hot of an inseparable incident.
5. It must be of a thing as he that accepts may have, and which properly
belongs to him. 6. It must be of a particular thing out of a general, and
not of a particular thing out of a particular thing. 7. It must be
particularly described and set forth; a lease of a tract of land, except one
acre, would be void, because that acre was not particularly described.
Woodf. Landl. and Ten. 10; Co. Litt. 47 a; Touchs. 77; 1 Shepl. R. 337;
Wright's R. 711; 3 John. R., 375 8 Conn. R. 369; 6 Pick. R. 499; 6 N. H.
Rep. 421. Exceptions against common right and general rules are construed as
strictly as possible. 1 Barton's Elem. Conv. 68.
3. An exception differs from a reservation; the former is always a part
of the thing granted; the latter is of a thing not in esse but newly created
or reserved. An exception differs also from an explanation, which by the use
of a videlicet, proviso, &c., is allowed only to explain doubtful clauses
precedent, or to separate and distribute generals, into particulars. 3 Pick.
R. 272.
EXCEPTION, practice, pleading. This term is used in the civil, nearly in the
same sense that the word plea has in the common law. Merl. Repert. h.t.;
Ayl. Parerg. 251.
2. In chancery practice, it is the allegation of a party in writing,
that some pleading or proceeding in a cause is insufficient. 1 Harr. Ch. Pr.
228.
3. Exceptions are dilatory or peremptory. Bract. lib. 5, tr. 5;
Britton, cap. 91, 92; 1 Lilly's Ab. 559. Dilatory exceptions are such as do
not tend to defeat the action, but only to retard its progress. Poth. Proc.
civ. partie 1, c. 2, s. 2, art. 1; Code of Pract. of Lo. art. 332.
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Declinatory exceptions have this effect, as well as the exception of
discussion opposed by a third possessor, or by a surety in an hypothecary
action, or the exception taken in order to call in the warrantor. Id.; 7 N.
S. 282; 1 L. R. 38, 420. These exceptions must, in general, be pleaded in
limine litis before issue joined. Civ. Code of Lo. 2260; 1 N. S. 703; 2 N.
S. 389; 4 L. R. 104; 10 L. R. 546. A declinatory exception is a species of
dilatory exception, which merely declines the jurisdiction of the judge
before whom the action is brought. Code of Pr. of L. 334.
4. Peremptory exceptions are those which tend to the dismissal of the
action. Some relate to forms, others arise from the law. Those which relate
to forms, tend to have the cause dismissed, owing to some nullities in the
proceedings. These must be pleaded in limine litis. Peremptory exceptions
founded on law, are those which, without going into the merits of the cause,
show that the plaintiff cannot maintain his action, either because it is
prescribed, or because the cause of action has been destroyed or
extinguished. These may be pleaded at any time previous to definitive
judgment. Id. art. 343, 346; Poth. Proc. Civ. partie 1, c. 2, s. 1, 2, 3.
These, in the French law, are called Fins de. non recevoir. (q.v.)
5. By exception is also meant the objection which is made to the
decision of a judge in the course of a trial. See Bill of Exception.
EXCHANGE, com. law. This word has several significations.
2.-1. Exchange is a negotiation by which one person transfers to
another funds which he has in a certain place, either at a price agreed
upon, or which is fixed by commercial usage. This transfer is made by means
of an instrument which represents such funds, and is well known by the name
of a bill of exchange.
3.-2. The price which is paid in order to obtain such transfer, is
also known among merchants by the name of exchange; as, exchange on England
is five per cent. See 4 Wash. C. C. R. 307. Exchange on foreign money is to
be calculated according to the usual rate at the time of trial. 5 S. & R.
48.
4.-3. Barter, (q.v.) or the transfer of goods and chattels for other
goods and chattels, is also known by the name of exchange, though the term
barter is more commonly used.
5.-4. The French writers on commercial law, denominate the profit
which arises from a maritime loan, exchange, when such profit is a
percentage on the money lent, considering it in the light of money lent in
one place to be returned in another, with a difference in amount in the sum
borrowed and that paid, arising from the difference of time and place. Hall
on Mar. Loans, 56, n.; and the articles Interest; Maritime; Premium.
6.-5. By exchange is also meant, the place where merchants, captains
of vessels, exchange agents and brokers, assemble to transact their
business. Code de Comm. art. 71.
7.-6. According to the Civil Code of Louisiana, art. 1758, exchange
imports a reciprocal contract, by which. the parties enter into mutual
agreement. 14 Pet. 133. Vide the articles. Bills of Exchange; Damages on
Bills of Exchange and Reexchange. Also Civ. Code of Lo. art. 2630.
EXCHANGE conveyancing. An exchange is a mutual grant of equal interests in
land, the one in consideration of the other. 2 Bl. Com. 323; Litt. s. 62;
Touchs. 289; Watk. Prin. Con. It is said that exchange, in the United
States, does not differ from bargain and sale. 2 Bouv. Inst. n. 2055.
2. There are five circumstances necessary to an exchange. 1. That the
estates given be equal. 2. That the word escambium or exchange be used,
which cannot be supplied by any other word, or described by circumlocution.
3. That there be an execution by entry or claim in the life of the parties.
4. That if it be of things which lie in grant, it be by deed. 5. That if the
lands lie in several counties, it be by deed indented; or if the thing lie
in grant, though they be in one county. In practice this mode of
conveyancing is nearly obsolete. Vide Cruise, Dig. tit. 32 Perk. ch. 4 10
Vin. Ab. 125; Com. Dig. h.t.; Nels. Ab. h.t.; Co. Litt. 51; Hardin's R.
593 1 N. H. Rep. 65 3 Har. & John. 361; 1 Rolle's Ab. 813, 3 Wils. R. 489.
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Vide Watk. Prin. Con. b. 2, c. 5; Horsman, 362 and 3 Wood, 243, for forms.
EXCHEQUER R, Eng. law. An ancient court of record set up by William the
Conqueror. It is called exchequer from the chequered cloth, resembling a
chessboard, which covers the table there. 3 Bl. Com. 45. It consists of two
divisions; the receipt of the exchequer, which manages the royal revenue;
and the court, or judicial part of it, which is again divided into a court
of equity, and a court of common law. Id. 44.
2. In this court all personal actions may be brought, and suits in
equity commenced, the plaintiff in both (fictitiously for the most part)
alleging himself to be the king's debtor, in order to give the court
jurisdiction of the cause. Wooddes. Lect. 69. But by stat. 2 Will. IV. c.
39, s. 1, a change has been made in this respect.
EXCHEQUER CHAMBER, Eng. law. A court erected by statute 31 Ed. III. c. 12,
to determine causes upon writs of error from the common law side of the
court of exchequer. 3 Bl. Com. 55. Another court of exchequer chamber was
created by the stat. 27 El. c. 8, consisting of the justices of the common
bench, and the barons of the exchequer. It has authority to examine by writ
of err6r the proceedings of the king's bench, not so generally as that
erected by the statute of Edw. III., but in certain enumerated actions.
EXCISES. This word is used to signify an inland imposition, paid sometimes
upon the consumption of the commodity, and frequently upon the retail sale.
1 Bl. Com. 318; 1 Tuck. Bl. Com. Appx. 341; Story, Const. Sec. 950.
EXCLUSIVE, rights. Debarring one from participating in a thing. An exclusive
right or privilege, is one granted to a person to do a thing, and forbidding
all others to do the same. A patent right or copyright, are of this kind.
EXCLUSIVE, computation of time. Shut out; not included. As when an act is to
be done within a certain time, as ten days from a particular time, one day
is to be included and the other excluded. Vide Hob. 139; Cowp. 714; Lofft,
276; Dougl. 463; 2 Mod. 280; Sav. 124; 3 ]Penna. Rep. 200; 1 Serg. & Rawle,
43; 3 B. & A. 581; Com. Dig. Temps, A; 3 East, 407; Com. Dig. Estates, G 8;
2 Chit. Pr. 69, 147.
EXCOMMUNICATION, eccl. law. An ecclesiastical sentence, pronounced by a
spiritual judge against a Christian man, by which he is excluded from the
body of the church, and disabled to bring any action, or sue any person in
the common law courts. Bac. Ab. h.t.; Co. Litt. 133-4. In early times it
was the most frequent and most severe method of executing ecclesiastical
censure, although proper to be used, said Justinian, (Nov. 123,) only upon
grave occasions. The effect of it was to remove the excommunicated "person
not only from the sacred rites but from the society of men. In a certain
sense it interdicted the use of fire and water, like the punishment spoken
of by Caesar, (lib, 6 de Bell. Gall.). as inflicted by the Druids. Innocent
IV. called it the nerve of ecclesiastical discipline. On repentance, the
excommunicated person was absolved and received again to communion. These
are said to be the powers of binding and loosing the keys of the kingdom of
heaven. This kind of punishment seems to have been adopted from the Roman
usage of interdicting the use of fire and water. Fr. Duaren, De Sacris
Eccles. Ministeriis, lib. 1, cap. 3. See Ridley's View of the Civil. and
Ecclesiastical Law, 245, 246, 249.
EXCOMMUNICATIO CAPIENDO, WRIT OF, Eng. eccl. law. A writ issuing out of
chancery, founded on a bishop's certificate that the defendant had been
excommunicated, which writ is returnable in the king's bench. F. N. B. 62,
64, 65 Bac. Ab. Excommunication, E. See Statutes 3 Ed. I. c. 15; 9 Ed. II.
c. 12; 2 & 3 Ed. VI. c. 13; 5 & 6 Ed. VI c. 4; 5 Eliz. c. 23; 1 H.V. c. 5;
also Cro. Eliz. 224, 6,80; Cro. Car. 421; Cro. Jac. 567; 1 Vent. 146; 1
Salk. 293, 294, 295.
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EXCUSABLE HOMICIDE, crim. law. The killing of a human being, when the party
killing is not altogether free from blame, but the necessity which renders
it excusable, may be said to be partly induce by his own act. 1 East, P. C.
220.
EXCUSE. A reason alleged for the doing or not doing a thing. This word
presents two ideas differing essentially from each other. In one case an
excuse may be made in, order to own that the party accused is not guilty; in
another, by showing that though guilty, he is less so, than he appears to
be. Take, for example, the case of a sheriff who has an execution against an
individual, and who in performance of his duty, arrests him; in an action by
the defendant against the sheriff, the latter may prove the facts, and this
shall be a sufficient excuse for him: this is an excuse of the first kind,
or a complete justification; the sheriff was guilty of no offence. But
suppose, secondly, that the sheriff has an execution against Paul, and by
mistake, and without any malicious design, be arrests Peter instead of Paul;
the fact of his having the execution against Paul and the mistake being
made, will not justify the sheriff, but it will extenuate and excuse his
conduct, and this will be an excuse of the second kind.
3. Persons are sometimes excused for the commission of acts, which
ordinarily are crimes, either because they had no intention of doing wrong,
or because they had no power of judging, and therefore had no criminal will
(q.v.); or having power, of judging they had no choice, and were compelled
by necessity. Among the first class may be placed infants under the age of
discretion, lunatics, and married women committing an offence in the
presence of their husbands, not malum in se, as treason or murder; 1 Hale's
P. C. 44, 45 or in offences relating to the domestic concern or management
of the house, as the keeping of a bawdy house. Hawk. b. 1, c. 1, s. 12.
Among acts of the second kind may be classed, the beating or killing another
in self-defence; the destruction of property in order to prevent a more
serious calamity, as the tearing down of a house on fire, to prevent its
spreading to the neighboring property, and the like. See Dalloz, Dict. h.t.
EXEAT, eccl. law. This is a Latin term, which is used to express the written
permission which a bishop gives to an ecclesiastic to exercise the functions
of his ministry in another diocese.
TO EXECUTE. To make, to perform, to do, to follow out. This term is
frequently used in the law; as, to execute a deed is to make a deed.
2. It also signifies to perform, as to execute a contract; hence some
contracts are called executed contracts, and others are called executory
contracts.
3. To execute also means to put to death by virtue of a lawful
sentence; as, the sheriff executed the convict.
EXECUTED. Something done; something completed. This word is frequently used
in connexion with others to designate a quality of such other words; as an
executed contract; an executed estate; an executed trust, &c. It is opposed
to executory.
2. An executed contract is one which has been fulfilled; as, where the
buyer has paid thrice of the thing purchased by him. See Agreement.
3. An executed estate is when there is vested in the grantee a present
and immediate right of present or future enjoyment; and in another sense,
the term applies to the time of enjoyment; and in that sense, an estate is
said to be executed, when it confers a present right of present enjoyment.
When the right of enjoyment in possession is to arise at a future period,
only, the estate is executed that is, it is merely vested in point of
interest: when the right of immediate enjoyment is annexed to the estate,
then only is the estate vested in possession. 1 Prest. on Est. 62.
4. Trusts executed are, when by deed or will, lands are conveyed, or
devised, in terms or in effect, to and for the use of one person or several
persons, in trust for others, without any direction that the trustees shall
make any farther conveyance; so that it does not appear that the author of
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the trusts had a view to a future instrument for accomplishing his
intention. Prest. on Est. 188.
EXECUTIO NON. These words occur in the stat. 13 Ed. I. cap. 45, in the
following connexion: Et...precipiatur vice comiti quod scire faciat parti...
quod sit ad certum diem ostensura si quid sciat dicere quare hujustnodi
irrotulata vel in fine contenta executionem habere non debeant. This statute
is the origin of the scire facias post annum et diem quare executionem non,
etc. To a plea in bar to such a writ, the defendant should conclude that the
plaintiff ought not to have or maintain his aforesaid execution thereof
against him, which is called the executio non, as in other cases by actio
non. (q.v.) 10 Mod. 112; Yelv. 218.
EXECUTION, practice. The act of carrying into effect the final judgment of a
court, or other jurisdiction. The writ which authorizes the officer so to
carry into effect such judgment is also called an execution.
2. A distinction has been made between an execution which is used to
make the money due on a judgment out of the property of the defendant, and
which is called a final execution; and one which tends to an end but is not
absolutely final, as a capias ad satisfaciendum, by virtue of which the body
of the defendant is taken, to the intent that the plaintiff shall be
satisfied his debt, &c., the imprisonment not being absolute, but until he
shall satisfy the same; this is called an execution quousque. 6 Co. 87.
3. Executions are either to recover specific things, or money. 1. Of
the first class are the writs of habere facias seisinam.; (q.v.) habere
facias possessionem; (q.v.) retorno habendo; (q.v.) distringas. (q.v.) 2.
Executions for the recovery of money are those which issue against the body
of the defendant, as the capias ad satisfaciendum, (q.v.); an attachment,
(q.v.); those which issue against his goods and chattels; namely, the fieri
facias, (q.v.); the, venditioni exponas, (q.v.); those which issue against
his lands, the levari facias; (q.v.) the liberari facias; the elegit. (q.v.)
Vide 10 Vin. Ab. 541; 1 Ves. jr. 430; 1 Sell. Pr. 512; Bac. Ab. h.t.;
Com. Dig. h.t.; the various Digests, h.t.; Tidd's Pr. Index, h.t.; 3
Bouv. Inst. n. 3365, et seq. Courts will at any time grant leave to amend an
execution so as to make it conformable to the judgment on which it was
issued. 1 Serg. & R. 98. A writ of error lies on an award of execution. 5
Rep. 32, a; 1 Rawle, Rep. 47, 48; Writ of Execution;
EXECUTION PAREE. By the term execution paree, which is used in Louisiana, is
meant a right founded on an authentic act; that is, and passed before a
notary, by which the creditor may immediately, without citation or summons,
seize and cause to be sold, the property of his debtor, out of the proceeds
of which to receive his payment. It imports a confession of judgment, and is
not unlike a warrant of attorney. Code of Pr. of Lo. art. 732; 6 Toull. n.
208; 7 Toull. 99.
EXECUTIONER. The name given to him who puts criminals to death, according to
their sentence; a hangman.
2. In the United States, executions are so rare that there are no
executioners by profession. It is the duty of the sheriff or marshal to
perform this office, or to procure a deputy to do it for him.
EXECUTIVE, government. That power in the government which causes the laws to
be executed and obeyed: it is usually. confided to the hands of the chief
magistrate; the president of the United States is invested with this
authority under the national government; and the governor of each state has
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the executive power in his hands.
2. The officer in whom is vested the executive power is also called the
executive.
3. The Constitution of the United States directs that "the executive
power shall be vested in a president of the United States of America." Art.
2, s. 1. Vide Story, Const. B. 3, c. 36.
EXECUTOR, trusts. The word executor, taken in its largest sense, has several
acceptations. 1. Executor dativus, who is one called an administrator to an
intestate. 2. Executor testamentarius, or one appointed to the office by the
last will of a testator, and this is what is usually meant by the term.
2. In the civil law, the person who is appointed to perform the duties
of an executor as to goods, is called haeres testamentarius; the term
executor, it is said, is a barbarism unknown to that law. 3 Atk. 304.
3. An executor, as the term is at present accepted, is the person to
whom the execution of a last will and testament of personal estate is, by
the testator's appointment, confided, and who has accepted of the same. 2
Bl. Com. 503; 2 P. Wms. 548; Toller, 30; 1 Will. on Ex. 112 Swinb. t. 4, s.
2, pl. 2.
4. Generally speaking, all persons who are capable of making wills may
be executors, and some others beside, as infants and married women. 2 Bl.
Corn. 503.
5. An executor is absolute or qualified; his appointment is absolute
when he is constituted certainly, immediately, and without restriction in
regard to the testator's effects, or limitation in point of time. It may be
qualified by limitation as to the time or place wherein, or the subject
matters whereon, the office is to be exercised; or the creation of the
office may be conditional. It may be qualified. 1st. By limitations in point
of time, for the time may be limited when the person appointed shall begin,
or when he shall cease to be executor; as if a man be appointed executor
upon the marriage of testator's daughter. Swinb. p. 4, s. 17, pl. 4. 2. The
appointment may be limited to a place; as, if one be appointed executor of
all the testator's goods in the state of Pennsylvania. 3. The power of the
executor may be limited as to the subject matter upon which if is to be
exercised; as, when a testator appoints. A the executor of his goods and
chattels in possession; B, of his choses in action. One may be appointed
executor of one thing, only, as of a particular claim or debt due by bond,
and the like. Off. Ex. 29; 3 Phillim. 424. But although a testator may thus
appoint separate executors of distinct parts of his property, and may divide
their authority, yet quoad the creditors of the testator they are all
executors, and act as one executor, and may be sued as one executor. Cro.
Car. 293. 4. The appointment may be conditional, and the condition may be
either precedent or subsequent. Godolph. Orph. Leg. pt. 2, c. 2, s. 1; Off.
Ex. 23.
6. An executor derives his interest in the estate of the deceased
entirely from the will, and it vests in him from the moment of the
testator's death. 1 Will. Ex. 159; Com. Dig. Administration, B 10; 5 B. & A.
745; 2 W. Bl. Rep. 692. He acquires an absolute legal title to the
personalty by appointment, but nothing in the lands of the testator, except
by devise. He can touch nothing which was not personal at the testator's
decease, except by express direction. 9 Serg. & Rawle, 431; Gord. Law Dec.
93. Still his interest in the goods of the deceased is not that absolute,
proper and ordinary interest, which every one has in his own proper goods.
He is a mere trustee to apply the goods for such purposes as are sanctioned
by law. 4 T. R. 645; 9 Co. 88; 2 Inst. 236; Off. Ex. 192. He represents the
testator, and therefore may sue and recover all the claims he had at the
time of his death and may be sued for all debts due by him. 1 Will. Ex. 508,
et seq. By the common law, however, such debts as were not due by some
writing could not be recovered against the executors of a deceased debtor.
The remedy was only in conscience or by a quo minus in the exchequer.
Afterwards an action on the case in banco regis was given. Crom t. Jurisdic.
66, b; Plowd. Com. 183: 11 H. VII. 26.
7. The following are the principal duties of an executor: 1. Within a
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convenient time after the testator's death, to collect the goods of the
deceased, provided he can do so peaceably; when he is resisted, he must
apply to the law for redress.
8.-2. To bury the deceased in a manner suitable to the estate he
leaves behind him; and when there is just reason to believe he died
insolvent, he is not warranted in expending more in funeral expenses (q.v.)
than is absolutely necessary. 2 Will. Ex. 636; 1 Salk. 296; 11 Serg. &
Rawle, 204 14 Serg. & Rawle, 64.
9.-3. The executor should prove the will in the proper office.
10.-4. He should make an inventory (q.v.) of the goods of the
intestate, which should be filed in the office.
11.-5. He should ascertain the debts and credits of the estate, and
endeavor to collect all claims with as little delay as possible,
consistently with the interest of the estate.
12.-6. He should advertise for debts and credits: see forms of
advertisements, 1 Chit. Pr. 521.
13.-7. He should reduce the whole of the goods, not specifically
bequeathed into money, with all due expedition.
14.-8. Keep the money of the estate safely, but not mixed with his
own, or he may be charged interest on it.
15.-9. Be at all times ready to account, and actually file an account
within a year.
16.-10. Pay the debts and legacies in the order required by law.
17. Co-executors, however numerous, are considered, in law, as an
individual person, and; consequently, the acts of any one of them, in
respect of the administration of the assets, are deemed, generally, the acts
of all. Bac. Ab. Executor, D; Touch. 484; for they have all a joint and
entire authority over the whole property Off. Ex. 213; 1 Rolle's Ab. 924;
Com. Dig. Administration, B 12. On the death of one or more of several joint
executors, their rights and powers survive to the survivors.
18. When there are several executors and all die, the power is in common
transferred to the executor of the last surviving executor, so that he is
executor of the first testator; and the law is the same when a sole executor
dies leaving an executor, the rights are vested in the latter. This rule has
been changed, in Pennsylvania, and, perhaps, some other states, by
legislative provision; there, in such case, administration cum testamento
annexo must be obtained, the right does not survive to the executor of the
executor. Act of Pennsylvania, of March 15 1832. s. 19. In general,
executors are not responsible for each other, and they have a right to
settle separate accounts. See Joint, Executors.
19. Executors may be classed into general and special; instituted and
substituted; rightful and executor de son tort; and executor to the tenor.
20. A general executor is one who is appointed to administer the whole
estate, without any limit of time or place, or of the subject-matter.
21. A special executor is one. who is appointed or constituted to
administer either a part of the estate, or the whole for a limited time, or
only in a particular place.
22. An instituted executor is one who is appointed by the testator
without any condition, and who has the first right of acting when there are
substituted executors. An example will show the difference between an
instituted and substituted executor: suppose a man makes his son his
executor, but if he will not act, he appoints his brother, and if neither
will act, his cousin; here the son is the instituted executor, in the first
degree, the brother is said to be substituted in the second degree, and the
cousin in the third degree, and so on. See Heir, instituted, and Swinb. pt.
4, s. 19, pl. 1.
23. A substituted executor is a person appointed executor, if another
person who has been appointed refuses to act.
24. A rightful executor is one lawfully appointed by the testator, by
his will. Deriving his authority from the will, he may do most acts, before
he obtains letters testamentary, but he must be possessed of them before. he
can declare in action brought by him, as such. 1 P. Wms. 768; Will. on Ex.
173.
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25. An executor de son tort, or of his own wrong, is one, who, without
lawful authority, undertakes to act. as executor of a person deceased. To
make fin executor de son tort, the act of the party must be, 1. Unlawful. 2.
By asserting ownership, as taking goods or cancelling a bond, and not
committing a mere, trespass. Dyer, 105, 166; Cro. Eliz. 114. 3. An act done
before probate of will, or granting letters of administration. 1 Salk. 313.
One may be executor de son tort when acting under a forged will, which has
been set aside. 3 T. R. 125. An executor de son tort. The law on this head
seems to have been borrowed from the civil law doctrine of pro hoerede
gestio. See Heinnec. Antiq. Syntagma, lib. 2, tit., 17, Sec. 16, p. 468. He
is, in general, held responsible for all his acts, when he does anything
which might prejudice the estate, and receives no, advantage whatever in
consequence of his assuming the office. He cannot sue a debtor of the
estate, but may be sued generally as executor. See a good reading on the
liabilities of executors de son tort, in: Godolph. Orph. Legacy, 91, 93, and
10 Wentw. Pl. 378, for forms of declaring; also, 5 Co. Rep. 50 31 a; Yelv.
137; 1 Brownlow, 103; Salk. 28; Ham. Parties, 273; Imp. Mod. Pl. 94. As to
what acts will make a person liable as executor de son tort, see Godolph. O
ubi sup.; Gord. Law of Dec. 87, 89; Off. Ex. 181; Bac. Ab. Executor, &c., B
3; 11 Vin. Ab. 215; 1 Dane's Ab. 561; Bull. N. P. 48; Com. Dig.
Administration C 3 Ham. on Part. 146 to 156; 8 John. R. 426; 7 John. R.
161; 4 Mass. 654; 3 Penna. R. 129; 15 Serg. & Rawle, 39.
26.-2. The usurpation of an office or character cannot confer the
rights and privileges of it, although it may charge the usurper with the
duties and obligations annexed to it. On this principle an executor de son
tort is an executor only for the purpose of being sued, not for the purpose,
of suing. In point of form, he is sued as if he were a rightful executor. He
is not denominated in the declaration executor (de son tort) of his own
wrong. It would be improper to allege that the deceased person with whose
estate he has intermeddled died intestate. Nor can he be made a co-defendant
with a rightful executor. Ham. Part. 146, 272, 273; Lawes on Plead. 190,
note; Com. Dig. Abatement, F 10. If he take out letters of administration,
he is still liable to be sued as executor, and in general, it is better to
sue him as executor than as administrator. Godolph. 0. Leg. 93, 94, 95, Sec.
2, 3.
27. An executor to the tenor. This phrase is based in the ecclesiastical
law, to denote a person who is not directly appointed by the will an
executor, but who is charged with the duties which appertain to one; as, "I
appoint A B to discharge all lawful demands against my will." 3 Phill. 116;
1 Eccl. Rep. 374; Swinb. 247 Wentw. Ex. part 4, s. 41 p. 230. Vide.
generally, Bouv. Inst. Index, h.t.; 11 Vin. Ab. h.t.; Bac. Ab. h.t.;
Rolle, Ab. h.t.; Nelson's Ab. h.t.; Dane's Ab. Index, h.t.; Com. Dig.
Administration; 1 Supp. to Ves. jr. 8, 90, 356, 438; 2 Id. 69; 1 Vern. 302-
3; Yelv. 84 a; 1 Salk. 318; 18 Engl. C. L. Rep. 185; 10 East, 295; 2 Phil.
Ev. 289; 1 Rop. Leg.' 114; American Digests, h.t.; Swinburne, Williams,
Lovelass, and Roberts' several treatises on the law of Executors; Off. Ex.
per totum; Chit. Pr. Index; h.t. For the various pleas that may be pleaded
by executors, see 7 Wentw. Plead. 596, 602; 10 Id. 378; Cowp. 292. For the
origin and progress of the law in relation to executors, the reader is
referred to 5 Toull. n. 576, note; Glossaire du Droit Francais, par
Delauriere, verbo Executeurs Testamentaires, and the same author on art.
297, of the Custom of Paris; Poth. Des Donations Testamen taires.
EXEQUATUR, French law. This Latin word was, in the ancient practice, placed
at the bottom of a judgment emanating from another tribunal, and was a
permission and authority to the officer to execute it within the
jurisdiction of the judge who put it below the judgment.
2. We have something of the same kind in our practice. When a warrant
for the arrest of a criminal is issued by a justice of the peace of one
county, and he flies into another, a justice of the latter county may
endorse the warrant and then the ministerial officer may execute it in such
county. This is called backing a warrant.
EXERCITOR. A term in the civil law, to denote the person who fits out, and
equips a vessel, whether he be the absolute or qualified owner, or even a
mere agent. Emer. on Mar. Loans, c. 1, s. 1.
2. In English, we generally use the word "ship's husband," but
exercitor is generally used to designate and distinguish from among several
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part owners of a ship, the one who has the immediate care an management of
her. Hall on Mar. Loans 142, n. See Dig. 19, 2, 19, 7; Id. 14, 1 1, 15;
Vicat, Vocab.; Ship's husband.
EXHEREDATION, civil law. The act by which a forced heir is deprived of his
legitimate or legal portion which the law gives him; disinherison. (q.v.)
EXHIBIT, practice. Where a paper or other writing is on motion, or on other
occasion, proved; or if an affidavit to which the paper writing is annexed,
refer to it, it is usual to mark the same with a capital letter, and to add,
"This paper writing marked with the letter A, was shown to the deponent at
the time of his being sworn by me, and is the writing by him referred to in
the affidavit annexed hereto." Such paper or other writing, with this
attestation, signed by the judge or other person before whom the affidavit
shall have been sworn, is called an exhibit. Vide Stra. 674; 2 P. Wms. 410;
Gresl. Eq. Ev. 98.
TO EXHIBIT. To produce a thing publicly, so that it may be taken possession
of, or seized. Dig. 10, 4, 2. To exhibit means also to file of record; as,
it is the practice in England in personal actions, when an officer or
prisoner of the king's bench is defendant, to proceed against such defendant
in the court in which he is an officer, by exhibiting, that is, filing a
bill against him. Steph. P.I. 52, n. (1); 2 Sell. Pr. 74. In medical
language, to exhibit signifies to administer, to cause a thing to be
taken by a patient. Chit. bled. Jur. 9.
EXHIBlTANT. One who exhibits any thing; one who is complainant in articles
of the peace. 12 Adol. & Ellis, 599 40 E. C. L. R. 124.
EXHIBITION, Scotch law. An action for compelling the production of writings.
In Pennsylvania, a party possessing writings is compelled, to produce them
on proper notice being given, in default of which judgment is rendered
against him.
EXIGENT, or EXIGI FACIAS, practice. A writ issued in the course of
proceedings to outlawry, deriving its name and application from the
mandatory words found therein, signifying, "that you cause to be exacted or
required; and it is that proceeding in an outlawry which, with the writ of
proclamation, issued at the same time, immediately precedes the writ of
capias utlagatum. 2 Virg. Cas. 244.
EXIGIBLE. That which may be exacted demandable; requirable.
EXILE, civil law. The: interdiction of all places except one in which the
party is forced to make his residence.
2. This punishment did not deprive the sufferer of his right of
citizenship or of his property, unless the exile were perpetual, in which
case confiscation not unfrequently was a part of the sentence. Exile was
temporary or perpetual. Dig. 48, 22, 4; Code, 10, 59, 2. Exile differs from
deportation, (q.v.) and relegation. (q.v.) Vide, 2 Lev. 191; Co. Litt.
133, a.
EXILIUM. By this term is understood that kind of waste which either drove
away the inhabitants into a species of exile, or had a tendency to do so; as
the prostrating or extirpating of trees in an orchard or avenue, or about
any house. Bac. Ab. Waste, A; Bract. lib. 4, c. 18, s. 13; 1 Reeves' Hist.
Law, 386.
EXITUS. Issue,, child, or offspring; rents or profits of land. Cowell, h.v.
In pleading, it is the issue, or the end, termination, or conclusion of the
pleadings, and is so called, because an issue brings the pleadings to a
close. 3 Bl. Com. 314.
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EXIGENDARY, Eng. law. An officer who makes out exigents.
EXOINE, French law. An act or instrument in writing, which contains the
reasons why a party in a civil suit, or a person accused, who has been
summoned, agreeably to the requisitions of a decree, does not appear. Poth.
Proced. Crim. s. 3, art. 3. Vide Essoin.
EXONERATION. The taking off a burden or duty.
2. It is a rule in the distribution of an intestate's estate that the
debts which he himself contracted, and for which be mortgaged his land as
security, shall be paid out of the personal estate in exoneration of the
real.
3. But when the real estate is charged with the payment of a mortgage
at the time the intestate buys it, and the purchase is made subject to it,
the personal. is not in that case to be applied, in exoneration of the real
estate. 2 Pow. Mortg. 780; 5 Hayw. 57; 3 Johns. Ch. R. 229.
4. But the rule for exonerating the real estate out of the personal,
does not apply against specific or pecuniary legatees, nor the widow's right
to paraphernalia, and with reason not against the interest of creditors. 2
Ves. jr. 64; 1 P. Wms. 693; Id. 729; 2 Id. 120,335; 3 Id. 367. Vide Pow.
Mortg. Index, h.t.
EXONERATUR, practice. A short note entered on a bail piece, that the bail is
exonerated or discharged in consequence of having fulfilled the condition of
his obligation, made by order of the court or of a judge upon a proper cause
being shown.
2. A surrender is the most usual cause; but an exoneratur may be
entered in other cases, as in case of death of the defendant, or his
bankruptcy. 1 Arch. Pr. 280, 281, 282; Tidd's Pr. 240.
EXPATRIATION. The voluntary act of abandoning one's country and becoming the
citizen or subject of another.
2. Citizens of the United States have the right to expatriate
themselves until restrained by congress; but it seems that a citizen cannot
renounce his allegiance to the United States without the permission of
government, to be declared by law. To be legal, the expatriation must be for
a purpose which is not unlawful, nor in fraud of the duties of the emigrant
at home.
3. A citizen may acquire in a foreign country commercial privileges
attached to his domicil, and be exempted from the operation of commercial
acts embracing only persons resident in the United States or under its
protection. 2 Cranch, 120. Vide Serg. Const. Law, 318, 2d ed; 2 Kent, Com.
36; Grotius, B. 2, c. 5, s. 24; Puffend. B. 8, c. 11, s. 2, 3 Vattel, B. 1,
c. 19, s. 218, 223, 224, 225 Wyckf. tom. i. 117, 119; 3 Dall. 133; 7 Wheat.
342; 1 Pet. C. C. R. 161; 4 Hall's Law Journ. 461; Bracken. Law Misc. 409; 9
Mass. R. 461. For the doctrine of the English courts on this subject, see 1
Barton's Elem. Conveyancing, 31, note; Vaugh, Rep. 227, 281, 282, 291; 7 Co.
Rep. 16 Dyer, 2, 224, 298 b, 300 b; 2 P. Wms. 124; 1 Hale, P. C. 68; 1 Wood.
382.
EXPECTANCY, estates. Having a relation to or dependence upon something
future.
2. Estates are of two sorts, either in possession, sometimes called
estates executed; or in expectancy, which are executory. Expectancies are,
first, created by the parties, called a remainder; or by act of law, called
a reversion.
3. A bargain in relation to an expectancy is, in general, considered
invalid. 2 Ves. 157; Sel. Cas. in Ch. 8; 1 Bro. C. C. 10; Jer. Eq. Jur. 397.
EXPECTANT. Having relation to, or depending upon something; this word is
frequently used in connexion with fee, as fee expectant.
EXPECTATION. That which may be expected, although contingent. In the
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doctrine of life annuities, that share or number of the years of human life
which a person of a given age may expect to live, upon an equality of
chances.
2. In general, the heir apparent will be relieved from a contract made
in relation to his expectancy. See Post Obit.
EXPENSAE LITIS. Expenses of the suit; the costs which are generally allowed
to the successful party.
EXPERTS. From the Latin experti,which signifies, instructed by experience.
Persons who are selected by the courts or the parties in a cause on account
of their knowledge or skill, to examine, estimate, and ascertain things, and
make a report of their opinions. Merl. Repert. mot Expert; 2 Lois des
Batimens, 253; 2 N. S. 1 5 N.. S. 557; 3 L. R. 350; 11 L. R. 314 11 S. & R.
336; Ray. Med. Jur. Prel. Views, Sec. 29; 3 Bouv. Inst. n. 3208.
EXPILATION, civil law. The crime of abstracting the goods of a succession.
2. This is said not to be a theft, because the property no longer
belongs to the deceased, nor to the heir before he has taken possession. In
the common law, the grant of letters testamentary, or letters of
administration, relate back to the time of the death of the testator or
intestate, so that the property of the estate is vested in the executor or
administrator from that period.
EXPIRATION. Cessation; end. As, the expiration of, a lease, of a contract,
or statute.
2. In general, the expiration of a contract puts an end to all the
engagements of the parties, except to those which arise from the non-
fulfillment of obligations created during its existence. For example, the
expiration of a partnership so dissolves it, that the parties cannot in
general create any new liability, but it still subsists, to enable the
parties to fulfill engagements in which the partners have engaged, or to
compel others to perform their obligations towards them. See Dissolution;
Contracts.
3. When a statute is limited as to time, it expires by mere lapse of
time, and then it has no force whatever; and, if such a statute repealed or
supplied a former statute, the first statute is, i so facto, revived by the
expiration of the repealing statute; 6 Whart. 294; 1 Bland, R. 664 unless it
appear that such was not the intention of the legislature. 3 East, 212 Bac.
Ab. Statute, D.
EXPORTATION, commercial law. The act of sending goods and merchandise from
one country to another. 2 Mann. & Gran. 155; 3 Mann. & Gran. 959.
2. In order to preserve equality among the states, in their commercial
relations, the constitution provides that "no tax or duty shall be laid on
articles exported from any state." Art. 1, s. 9. And to prevent a pernicious
interference with the commerce of the nation, the 10th section of the 1st
article of the constitution contains the following prohibition: "No state
shall, without the consent of congress, lay any imposts or duties on imports
or exports, except what may be absolutely necessary for executing its
inspection laws; and the net produce of all duties and imposts, laid by any
state on imports or exports, shall be for the use of the treasury of the
United States; and all such laws shall be subject to the revision and
control of the congress." Vide 12 Wheat. 419; and the article Importation.
EXPOSE' A French word, sometimes applied to a written document, containing
the reasons or motives for doing a thing. The word occurs in diplomacy.
EXPROMISSION, civil law. The act by which a creditor accepts a new debtor,
who becomes bound instead of the old, the latter being released. It is a
species of novation. (q.v.) 1 Bouv. Inst. n. 802. Vide Delegation.
EXPROMMISSOR, civil law. By this term is understood the person who alone
becomes bound for the debt of another, whether the latter were obligated or
not. He differs from a surety, who is bound together with his principal.
Dig. 12, 4, 4; Dig. 16, 1, 13; Id. 24, 3, 64, 4; Id. 38, 1, 37, 8.
EXPULSION. The act of depriving a member of a body politic, corporate, or of
a society, of his right of membership therein, by the vote of such body or
society, for some violation of hi's. duties as such, or for some offence
which renders him unworthy of longer remaining a member of the same.
2. By the Constitution of the United States, art. 1, s. 5, Sec. 2, each
house may determine the rules of its proceedings, punish its members for
disorderly behaviour, and, with the concurrence of two-thirds' expel a
member. In the case of John Smith, a senator from Ohio, who was expelled
from the senate in 1807, the committee made a report which embraces the
following points:
3.-1. That the senate may expel a member for a high misdemeanor, such
as a conspiracy to commit treason. Its authority is not confined to an act
done in its presence.
4.-2. That a previous conviction is, not requisite, in order to
authorize the senate to expel a member from their body, for a high: offence
against the United States.
5.-3. That although a bill of indictment against a party for treason
and misdemeanor has been abandoned, because a previous indictment against
the principal party had terminated in an acquittal, owing to the
inadmissibility of the evidence upon that indictment, yet the senate may
examine the evidence for themselves, and if it be sufficient to satisfy
their. minds that the party is guilty of a high misdemeanor it is a
sufficient ground of expulsion.
6.-4. That the 6th and 6th articles of the amendments of the
Constitution of the United States, containing the general rights and
privileges of the citizen, as to criminal prosecutions, refer only to
prosecutions at law, and do not affect the jurisdiction of the senate as to
expulsion.
7.-5. That before a committee of the senate, appointed to report an
opinion relative to the honor and privileges of the senate, and the facts
respecting the conduct of the member implicated, such member is not entitled
to be heard in his defence by counsel, to have compulsory process for
witnesses, and to be confronted with his accusers. It is before the senate
that the member charged is entitled to be heard.
8.-6. In determining on expulsion, the senate is not bound by the
forms of judicial proceedings, or the rules of judicial evidence; nor, it
seems, is the same degree of proof essential which is required to convict of
a crime. The power of expulsion must, in its nature, be discretionary, and
its exercise of a more summary character. 1 Hall's Law Journ. 459, 465.
9. Corporations have the right of expulsion in certain cases, as such
power is necessary to the good order and government of corporate bodies; and
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the cases in which the inherent power may be exercised are of three kinds.
1. When an offence is committed which has no immediate relation to a
member's corporate duty, but is of so infamous a nature as renders him unfit
for the, society of honest men; such as the offences of perjury, forgery,
and the like. But before an expulsion is made for a cause of this kind, it
is necessary that there should be a previous conviction by a jury, according
to the law of the land. 2. When the offence is against his duty as a
corporator, in which case he may be expelled on trial and conviction before
the corporation. 3. The third is of a mixed nature, against the member's
duty. as a corporator, and also indictable by the law of the land. 2
Binn.448. See, also, 2 Burr., 536.
10. Members of what are called joint stock incorporated companies, or
indeed members of any corporation owning property, cannot, without express
authority in the charter, be expelled, and thus deprived of their interest
in the general fund. Ang. & Ames on Corp. 238. See; generally, Ang. & Ames
on Corp. ch. 11; Willcock, on Mun. Cor. 270; 1 Co. 99; 2 Bing. 293.; 5 Day
329; Sty. 478; 6 Conn. R. 532; 6 Serg. & Rawle, 469; 5 Binn. 486.
EXTREMIS. When a person is sick beyond the hope of recovery, and near death,
he is said to be in extremism.
2. A will made in this condition, if made without undue influence, by a
person of sound mind, is valid.
3. The declarations of persons in extremis, when made with a full
consciousness of approaching death, ate admissible in evidence when the
death of the person making them is the subject of the charge, and the
circumstances of the death the subject of such declarations. 2 B. & C. 605
S. C. 9 Eng. C. L. Rep..196; and see 15 John. 286; 1 John. Rep. 159; 2
John. R. 31; 7 John. 95; 2 Car. Law. Repos. 102; 5 whart, R. 396-7.
EY. A watery place; water. Co. Litt 6.
EYE-WITNESS. One who saw the act or fact to which he testifies. When an eye-
witness testifies, and is a man of intelligence and integrity, much reliance
must be placed on his testimony, for he has the means of making known the
truth.
EYOTT. A small island arising in a river. Fleta, lib. 3, c. 2, s. b; Bract.
lib. 2, c. 2. See Island.
F.
F, punishment, English law. Formerly felons were branded and marked with a
hot iron, with this letter, on being admitted to the benefit of clergy.
FACIO UT DES. A species of contract in the civil law, which occurs when a
man agrees to perform anything for a price, either specifically mentioned or
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left to the determination of the law to set a value on it. As when a servant
hires himself to his master for certain wages or an agreed sum of money. 2
Bl. Com. 445.
FACIO UT FACIAS. A species of contract in the civil law, which occurs when I
agree with a man to do his work for him if he will do mine for me. Or if two
persons agree to marry together, or to do any other positive acts on both
sides. Or it may be to forbear on one side in consideration of something
done on the other. 2 Bl. Com. 444.
FACT. An action; a thing done. It is either simple or compound.
2. A fact is simple when it expresses a purely material act unconnected
with any moral qualification; for example, to say Peter went into his house,
is to express a simple fact. A compound fact contains the materiality of the
act, and the qualification which that act has in its connexion with morals
and, the law. To say, then, that Peter has stolen a horse, is to express a
compound fact; for the fact of stealing, expresses at the same time, the
material fact of taking the horse, and of taking him with the guilty
intention of depriving the owner of his property and appropriating it to his
own use; which is a violation of the law of property.
3. Fact. is also put in opposition to law; in every case which has to
be tried there are facts to be established, and the law which bears on those
facts.
4. Facts are also to be considered as material or immaterial. Material
facts are those which are essential to the right of action or defence, and
therefore of the substance of the one or the other - these must always be
proved; or immaterial, which are those not essential to the cause of action
- these need not be proved. 3 Bouv. Inst. n. 3150-53.
5. Facts are generally determined by a jury,; but there are many facts,
which, not being the principal matters in issue, may be decided by the
court; such, for example, whether a subpoena has or has not been served;
whether a party has or has not been summoned, &c. As to pleading material
facts, see Gould. Pl. c. 3, s. 28. As to quality of facts proved, see 3
Bouv. Inst. n. 3150. Vide Eng. Ecc. R. 401-2, and the article Circumstances.
FACTO. In fact, in contradistinction to the lawfulness of the thing; it is
applied to anything actually done. Vide Ex Post Facto.
FALSE JUDGMENT, Eng. law. The name of a writ which lies when a false
judgment has been given in the county court, court baron, or other courts
not of record. F. N. B. 17, 18 3 Bouv. Inst. n. 3364.
FALSE PRETENCES, criminal law. False representations and statements, made
with a fraudulent design, to obtain "money, goods, wares, and
merchandise"
with intent to cheat. 2 Bouv. Inst. n. 2308.
2. This subject may be considered under the following heads:. 1. The
nature. of the false pretence. 2. What must be obtained. 3. The intent.
3.-1. When the false pretence is such as to impose upon a person of
ordinary caution, it will doubtless be sufficient. 11 Wend. R. 557. But
although it may be difficult to restrain false pretences to such as an
ordinarily prudent man may avoid, yet it is not every absurd or irrational
pretence which will be sufficient. 2 East, P. C. 828. It is not necessary
that all the pretences should be false, if one of them, per se, is
sufficient to constitute the offence. 14 Wend. 547. And although other
circumstances may have induced the credit, or the delivery of the property,
yet it will be sufficient if the false pretences had such an influence that,
without them, the credit would not have been given, or the property
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delivered. 11 Wend. R. 557; 14 Wend. R. 547; 13 Wend. Rep. 87. The false
pretences must have been used before the contract was completed. 14 Wend.
Rep. 546; 13 Wend. Rep. 311. In North Carolina, the cheat must be effected
by means of some token or contrivance adapted to impose on an ordinary mind.
3 Hawks, R. 620; 4 Pick. R. 178.
4.-2. The wording of the statutes of the several states on this
subject is not the same, as to the acts which are indictable. In
Pennsylvania, the words of the act are, "every person who, with intent to
cheat or defraud another, shall designedly, by color of any false token or
writing, or by any false pretence whatever, obtain from any person any
money, personal property or other valuable, things," &c. In Massachusetts,
the intent must be to obtain "money, goods, wares, merchandise, or other
things." Stat. of 1815, c. 136. In New York, the words are "money, goods, or
chattels, or other effects." Under this statute it has been holden that
obtaining a signature to a note; 13 Wend. R. 87; or an endorsement on a
promissory note; 9 Wend. Rep. 190; fell within the spirit of the statute;
and that where credit was obtained by false pretence, it was also within the
statute. 12 John. R. 292.
5.-3. There must be an intent to cheat or defraud same person.
Russ. & Ry. 317; 1 Stark. Rep. 396. This may be inferred from a
false representation. 13 Wend. R. 87. The intent is all that is
requisite; it is not necessary that the party defrauded should
sustain any loss. 11 Wend. R. 18; 1 Carr. & Marsh. 516, 537.
FALSE RETURN. A return made by the sheriff, or other ministerial officer, to
a writ in which is stated a fact contrary to the truth, and injurious to one
of the parties or some one having an interest in it.
2. In this case the officer is liable for damages to the party injured.
2 Esp. Cas. 475. See Falso retorno brevium.
FALSE TOKEN. A false document or sign of the existence of a fact, in general
used for the purpose of fraud. Vide Token, and 2 Stark. Ev. 563.
FAMOSUS LIBELLUS. Among the civilians these words signified that species of
injuria which corresponds nearly to libel or slander.
FANEGA, Spanish law. A measure of land, which is not the same in every
province. Diccionario de la Acad.; 2 White's Coll. 49. In Spanish America,
the fanega consisted of six thousand and four hundred square varas or yards.
2 White's Coll. 138.
FARRIER. One who takes upon himself the public employment of shoeing horses.
2. Like an innkeeper, a common carrier, and other persons who assume a
public employment, a farrier is bound to serve the public as far as his
employment goes, and an action lies against him for refusing, when a horse
is brought to him at a reasonable time for such purpose, if he refuse;
Oliph. on Horses, 131 and he is liable for the unskilfulness of himself or
servant in performing such work 1 Bl. Com. 431; but not for the malicious
act of the servant in purposely driving a nail into the foot of the horse,
with the intention of laming him. 2 Salk. 440.
FAULT, contracts, civil law. An improper act or omission, which arises from
ignorance, carelessness, or negligence. The act or omission must not have
been meditated, and must have caused some injury to another. Lec. Elem. Sec.
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783. See Dolus, Negligence. 1 Miles' Rep. 40.
2.-1. Faults or negligence are usually divided into, gross, ordinary,
and slight: 1. Gross fault or neglect, consists in not observing that care
towards others, which a man the least attentive, usually takes of his own
affairs. Such fault may, in some cases, afford a presumption of fraud, and
in very gross cases it approaches so near, as to be almost undistinguishable
from it, especially when the facts seem hardly consistent with an honest
intention. But there may be a gross fault without fraud. 2 Str. 1099; Story,
Bailm. Sec. 18-22; Toullier, 1. 3, t. 3, Sec. 231. 2. Ordinary faults
consist in the omission of that care which mankind generally pay to their
own concerns; that is, the want of ordinary diligence. 3. A slight fault
consists in the want of that care which very attentive persons take of their
own affairs. This fault assimilates itself, and, in some cases, is scarcely
distinguishable, from mere accident, or want of foresight. This division has
been adopted by common lawyers from the civil law. Although the civilians
generally agree in this division, yet they are not without a difference of
opinion. See Pothier, Observation generale, sur le precedent Traite, et sur
les suivants; printed at the end of his Traite des Obligations, where he
cites Accurse, Alciat, Cujas, Duaren, D'Avezan, Vinnius, and Heineccius, in
support of this division. On the other side the reader is referred to
Thomasius, tom. 2, Dissertationem, pago 1006; Le Brun, cited by Jones,
Bailm. 27; and Toullier, Droit Civil Francais, liv. 3, tit. 3, Sec. 231.
3.-2. These principles established, different rules have been made as
to the responsibilities of parties for their faults in relation to their
contracts. They are reduced by Pothier to three.
4.-1. In those contracts where the party derives no benefit from his
undertaking, he is answerable only for his gross faults.
5.-2. In those contracts where the parties have a reciprocal
interest, as in the contract of sale, they are responsible for ordinary
neglect.
6.-3. In those contracts where the party receives the only advantage,
as in the case of loan for use, he is answerable for his slight fault. Poth.
Observ. Generale; Traite des Oblig. Sec. 142; Jones, Bailm. 119 Story,
Bailm. 12. See also Ayliffe, Pand. 108. Civ. C. Lou. 3522; 1 Com. Dig. 41 3;
5 Id. 184; Wesk. on Ins. 370.
FAUX, French law. A falsification or fraudulent alteration or suppression of
a thing by words, by writings, or by acts without either. Biret, Vocabulaire
des Six Codes.
2. The crimen falsi of the civil law. Toullier says, "Le faux s'entend
de trois manieres: dans le sons le plus etendre, c'est l'alteration de la
verite, avec ou sans mauvaises intentions; il est a peu pres synonyme de
mensonge; dans un sens moins etendu, c'est l'alteration de la verite,
accompagnee de dol, mutatio veritatis cum dolo facta; enfin, dans le sens
etroit, ou plutot legal du mot, quand il s'agit de savoir si le faux est un
crime, le faux est I'alteration frauduleuse de la verite, dans les
determines et punis par la loi." Tom. 9, n. 188. "Faux may be understood in
three ways: in its most extended sense, it is the alteration of truth, with
or without intention; it is nearly synonymous with lying; in a less extended
sense, it is the alteration of truth, accompanied with fraud, mutatio
veritatis cum dolo facta; and lastly, in a narrow, or rather the legal sense
of the word, when it is a question to know if the faux be a crime, it is the
fraudulent alteration of the truth, in those cases ascertained and punished
by the law." See Crimen Falsi.
FAVOR. Bias partiality; lenity; prejudice.
2. The grand jury are sworn to inquire into all offences which have
been committed, and of all violations of law, without fear, favor, or
affection. Vide Grand Jury. When a juror is influenced by bias or prejudice,
so that there is not sufficient ground for a principal challenge, he may
nevertheless be challenged for favor. Vide Challenge, and Bac. Ab. Juries,
E; Dig. 50, 17, 156, 4; 7 Pet. R. 160.
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FEAL. Faithful. This word is not used.
FEALTY. Fidelity, allegiance.
2. Under the feudal system, every owner of lands held them of some
superior lord, from whom or from whose ancestors, the tenant had received
them. By this connexion the lord became bound to protect the tenant in the
enjoyment of the land granted to him; and, on the other hand, the tenant was
bound to be faithful to his lord,, and defend him against all his enemies.
This obligation was called fidelitas, or fealty. 1 Bl. Com. 366; 2 Bl. Com.
86; Co. Litt. 67, b; 2 Bouv. Inst. n. 1566.
FEAR, crim. law. Dread, consciousness of approaching danger.
2. Fear in the person robbed is one of the ingredients required. to
constitute a robbery from the person, and without this the felonious taking
of the property is a larceny. It is not necessary that the owner of the
property should be in fear of his own person, but fear of violence to the
person of his child; 2 East, P. C. 718; or of his property; Id. 731 2 Russ.
72; is sufficient. 2 Russ. 71 to 90. Vide Putting in fear, and Ayl. Pand.
tit. 12, p. 106.; Dig. 4, 2, 3 an d 6.
FEASTS. Certain established periods in the Christian church. Formerly, the
days of the feasts of saints were used to indicate the dates of instruments,
and memorable events. 18 Toull. n. 81. These are yet used in England; there
they have Easter term, Hilary term, &c.
FEDERAL, government. This term is commonly used to express a league or
compact between two or more states.
2. In the United States the central government of the Union is federal.
The constitution was adopted "to form a more perfect union" among the
states, for the purpose of self-protection and for the promotion of their
mutual happiness.
FEE, FEODUM or FEUDUM, estates. From the French, fief. A fee is an estate
which may continue forever. The word fee is explained to signify that the
land, or other subject of property, belongs to its owner, and is
transmissible, in the case of an individual, to those whom the law appoints
to succeed him, under the appellation of heirs; and in the case of corporate
bodies, to those who are to take on themselves the corporate function; and
from the manner in which the body is to be continued, are denominated
successors. 1 Co. Litt. 1, 271, b; Wright's Ten. 147, 150; 2 Bl. Com. 104.
106; Bouv. Inst. Index h.t.
2. Estates in fee are of several sorts, and have different
denominations, according to their several natures and respective qualities.
They 'may with propriety be divided into, 1. Fees simple. 2. Fees
determinable. 3. Fees qualified. 4. Fees conditional and 5. Fees tail.
3.-1. A fee simple is an estate inlands or tenements which, in
reference to the ownership of individuals, is not restrained to any heirs in
particular, nor subject to any condition or collateral determination except
the laws of escheat and the canons of descent, by which it may, be
qualified, abridged or defeated. In other words, an estate in fee simple
absolute, is an estate limited to a person and his heirs general or
indefinite. Watk. Prin. Con. 76. And the omission of the word `his' will not
vitiate the estate, nor are the words "and assigns forever" necessary to
create it, although usually added. Co. Litt. 7, b 9, b; 237, b Plowd. 28, b;
29, a; Bro. Abr. Estates, 4. 1 Co. Litt. 1, b; Plowd. 557 2 Bl. Com. 104,
106 Hale's Analysis, 74. The word fee simple is sometimes used by the best
writers on the law as contrasted with estates tail. 1 Co. Litt. 19. In this
sense, the term comprehends all other fees as well as the estate, properly,
and in strict propriety of technical language, peculiarly' distinguished by
this appellation.
4.-2. A determinable fee is an estate which may continue forever.
Plowd. 557; Shep. Touch. 97. It is a quality of this estate while it falls
under this denomination, that it is liable to be determined by some act or
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event, expressed on its limitation, to circumscribe its continuance, or
inferred by the law as bounding its extent. 2 Bl. Com. 109. Limitations to a
man. and his heirs, till the marriage of such. a person shall take place;
Cro. Jac. 593; 10 Vin. Abr. 133; till debts shall be paid; Fearne, 187 until
a minor shall attain the age of twenty-one years 3 Atk. 74 Ambler, 204; 9
Mod. 28 10 Vin. Abr. 203. Feariae, 342; are instances of such a determinable
fee.
5.-3. Qualified fee, is an interest given on its, first limitation,
to a man and to certain of his heirs, and not to extend to all of them
generally, nor confined to the issue of his body. A limitation to a man and
his heirs on the part of his father, affords an example of this species of
estate. Litt. 254 1 Inst. 27, a 220; 1 Prest. on Estates, 449.
6.-4. A conditional fee, in the more general acceptation of the term,
is when, to the limitation of an estate a condition is annexed, which
renders the estate liable to be defeated. 10 Rep. 95, b. In this application
of the term, either a determinable or a qualified fee may at the same time
be a conditional fee. An estate limited to a man and his heirs, to commence
on the performance of a condition, is also frequently described by this
appellation. Prest. on East. 476; Fearne, 9.
7.-5. As to fee-tail, see Tail.
FEE FARM, Eng. law. A perpetual farm or rent. 1 Tho. Co. Litt. 446, n. 5.
FEE FARM RENT, contracts, Eng. law. When the lord, upon the creation of a
tenancy, reserves to himself and his heirs, either the rent for which it was
before let to farm, or at least one-fourth part of that farm rent, it is
called a fee farm rent, because a farm rent is reserved upon a grant in fee.
2 Inst. 44.
FEES, compensation. Certain perquisites allowed by law to officers concerned
in the administration of justice, or in the performance of duties required
by law, as a recompense for their labor and trouble. Bac. Ab. h.t.; Latch,
18.
2. The term fees differs from costs in this, that the former are, as
above mentioned, a recompense to the officer for his services, and the
latter, an indemnification to the, party for money laid out and expended in
his suit. 11 S. & R. 248; 9 Wheat. 262; See 4 Binn. 267. Vide Costs; Color
of office; Exaction; Extortion.
FEIGNED ACTION, practice. An action brought on a pretended right, when the
plaintiff has no true cause of action, for some illegal purpose. In a
feigned action the words of the writ are true; it differs from false action,
in which case the words of the writ are false. Co. Litt. 361, sect. 689.
Vide Fictitious action.
FEIGNED issue, pract. An issue brought by consent of the parties, or the
direction of a court of equity, or such courts as possess equitable powers,
to determine before a jury some disputed matter of fact, which the court has
not the power or is unwilling to decide. 3 Bl. Com. 452; Bouv. Inst. Index,
h. t
FELO DE SE, criminal law. A felon of himself; a self-murderer.
2. To be guilty of this offence, the deceased must have had the will
and intention of committing it, or else be committed no crime. As he is
beyond the reach of human laws, he cannot be punished; the English law,
indeed, attempts to inflict a punishment by a barbarous burial of his body,
and by forfeiting to the king the property which he owned, and which would
belong to his relations. Hawk. P. C. c. 9; 4 Bl. Com. 189. The charter of
privileges granted by William Penn to the inhabitants of Pennsylvania,
contains the following clause: "If any person, through temptation or
melancholy, shall destroy himself, his estate, real and personal, shall,
notwithstanding, (descend to his wife and children, or relations, as if he
had died a natural death."
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FELON, crimes. One convicted and sentenced for a felony.
2. A felon is infamous, and cannot fill any office, or become a witness
in any case, unless pardoned, except in cases of absolute necessity, for his
own preservation, and defence; as, for example, an affidavit in relation to
the irregularity of a judgment in a cause in which he is a party. 2 Salk. R.
461; 2 Str. 1148;. Martin's R. 25; Stark. Ev. part 2, tit. Infamy. As to the
effect of a conviction in one state, where the witness is offered in
another, see 17 Mass. R. 515 2 Harr. & McHen. R. 120, 378; 1 Harr. & Johns.
R. 572. As to the effect upon a copartnership by one of the partners
becoming a felon, see 2 Bouv. Inst. n. 1493.
FELONIOUSLY, pleadings. This is a technical word which must be introduced
into every indictment for a felony, charging the offence to have been
committed feloniously; no other word, nor any circumlocution, will supply
its place. Com. Dig. Indictment, G 6; Bac. Ab. Indictment, G 1; 2 Hale, 172,
184; Hawk. B. 2. c. 25, s. 55 Cro. C. C. 37; Burn's Just. Indict. ix.;
Williams' Just. Indict. iv., Cro. Eliz. 193; 5 Co. 121; 1 Chit. Cr. Law,
242.
FELONY, crimes. An offence which occasions a total forfeiture of. either
lands or goods, or both, at common law, to which capital or other punishment
may be super-added, according to the degree of guilt. 4 Bl. Com, 94, 5; 1
Russ. Cr. *42; 1 Chit. Pract. 14; Co. Litt. 391; 1 Hawk. P. C. c. 37; 5
Wheat. R. 153, 159.
FEMALE. This term denotes the sex which bears young.
2. It is a general rule, that the young of female animals which belong
to us, are ours, nam fetus ventrem sequitur. Inst. 2, 1, 19; Dig. 6, 1, 5,
2. The rule is, in general, the same with regard to slaves; but when a
female slave comes into. a free state, even without the consent of her
master, and is there delivered of a child, the latter is free. Vide
Feminine; Gender; Masculine.
FEME, or, more properly,
FEMME. Woman.
2. This word is frequently used in law. Baron and feme, husband and
wife; feme covert, a. married woman; feme sole, a single woman.
3. A feme covert, is a married woman. A feme covert may sue and be sued
at law, and will be treated as a feme sole, when the husband is civiliter
mortuus. Bac. Ab. Baron and Feme, M; see article, Parties to Actions, part
1, section l, Sec. 7, n. 3; or where, as it has been decided in England, he
is an alien and has left the country, or has never been in it. 2 Esp. R.
554; 1 B. & P. 357. And courts of equity will treat a married woman as a,
feme sole, so as to enable her to sue or be sued, whenever her husband has
abjured the realm, been transported for felony, or is civilly dead. And when
she has a separate property, she may sue her husband in respect of such
property, with the assistance of a next friend of her own selection. Story,
Eq. Pl. Sec. 61; Story, Eq. Jur. Sec. 1368; and see article, Parties to a
suit in equity, 1, n. 2; Bouv. Inst. Index, h.t.
4. Coverture subjects a woman to some duties and disabilities, and
gives her some rights and immunities, to which she would not be entitled as
a feme sole. These are considered under the articles, Marriage, (q.v.) and
Wife. (q.v.)
5. A feme sole trader, is a married woman who trades and deals on her
own account, independently of her husband. By the custom of London, a feme
covert, being a sole trader, may sue and be sued in the city courts, as a
feme sole, with reference to her transactions in London. Bac. Ab. Baron and
Feme, M. 6. In Pennsylvania, where any mariners or others go abroad, leaving
their wives at shop-keeping, or to work for their livelihood at any other
trade, all such wives are declared to be feme sole traders, with ability to
sue and be sued, without naming the husbands. Act of February 22, 1718. See
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Poth. De la Puissance du Mari, n. 20.
7. By a more recent act, April 11, 1848, of the same state, it is
provided, that in all cases where debts may be contracted for necessaries
for the support and maintenance of the family of any married woman, it shall
be lawful for the creditor, in such case, to institute suit against the
husband and wife for the price of such necessaries, and after obtaining a
judgment, have an execution against the husband alone and if no property of
the said husband be found, the officer executing the said writ shall so
return, and thereupon an alias execution may be issued, which may be levied
upon and satisfied out of the separate property of the wife, secured to her
under the provisions of the first section of this act. Provided, That
judgment shall not be rendered against the wife, in such joint action,
unless it shall have be proved that the debt sued for in such action, was
contracted by the wife, or incurred for articles necessary for the support
of the family of the said husband and wife.
FEMININE. What belongs to the female sex.
2. When the feminine is used, it is generally confined to females; as,
if a man bequeathed all his mares to his son, his horses would not pass.
Vide: 3 Brev. R. 9 Gender; Man; Masculine.
FENCE. A building or erection between two contiguous estates, so as to
divide them; or on the same estate, so as to divide one part from another.
2. Fences are regulated by the local laws. In general, fences on
boundaries are to be built on the line, and the expense, when made no more
expensively than is required by the law, is borne equally between the
parties. See the following cases on the subject. 2 Miles, 337, 395; 2
Greenl. 72; 11 Mass. 294; 3 Wend. 142; 2 Metc. 180; 15 Conn. 526 2 Miles,
447; Bouv. Inst. Index, h.t.
3. A partition fence is presumed to be the common property of both
owners of the land. 8 B. & C. 257, 259, note a. When built upon the land of
one of them, it is his; but if it were built equally upon the land of both,
at their joint expense, each would be the owner in severalty of the part
standing on his own land. 5 Taunt. 20; 2 Greenl. Ev. 617.
FEOD. The same as fief. Vide Fief or Feud.
FEOFFMENT, conveyancing. A gift of any corporeal hereditaments to another.
It operates by transmutation of possession, and it is essential to its
completion that the seisin be passed. Watk. Prin. Conv. 183. This term also
signifies the instrument or deed by which such hereditament is conveyed.
2. This instrument was used as one of the earliest modes of conveyance
of the common law. It signified, originally, the grant of a feud or fee; but
it came, in time, to signify the grant of a free inheritance in fee, respect
being had to the perpetuity of the estate granted, rather than to the feudal
tenure. The feoffment was, likewise, accompanied by livery of seisin. The
conveyance, by feoffment, with livery of seisin, has become infrequent, if
not obsolete, in England; and in this country it has not been used in
practice. Cruise, Dig. t. 32, c. 4. s. 3; Touchs. c. 9; 2 Bl. Corn. 20; Co.
Litt. 9; 4 Kent, Com. 467; Perk.. c. 3; Com. Dig. h.t.; 12 Vin. Ab. 167;
Bac. Ab. h.t. in pr.; Doct. Plac. 271; Dane's Ab. c. 104, a. 3, s. 4. He
who gives or enfeoffs is called the feoffor; and the person enfeoffed is
denominated the feoffee. 2 Bl. Com. 20. See 2 Bouv. Inst. n. 2045, note.
FERAE. Wild, savage, not tame.
FERAE BESTIAE. Wild beasts. See Animals; Ferae naturae.
FEUDA. In the early feudal times grants were made, in the first place, only
during the pleasure of the grantor, and called muncra; (q.v.) afterwards
for life, called beneficia; (q.v.) and, finally, they were extended to the
vassal and his sons, and then they acquired the name of feudal. Dalr. Feud.
Pr. 199.
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FEUDAL. A term applied to whatever concerned a feud; as feudal law: feudal
rights.
FEUDAL LAW. By this phrase is understood a political system which placed men
and estates under hierarchical and multiplied distinctions of lords and
vassals. The principal features of this system were the following.
2. The right to all lands was vested in the sovereign. These were,
parcelled out among the great men of the nation by its chief, to be held of
him, so that the king had the Dominum directum, and the grantee or vassal,
had what was called Dominum utile. It was a maxim nulle terre sans seigneur.
These tenants were bound to perform services to the king, generally of a
military character. These great lords again granted parts of the lands. they
thus acquired, to other inferior vassals, who held under them, and were
bound to perform services to the lord.
3. The principles of the feudal law will be found in Littleton's
Tenures Wright's Tenures; 2 Blackstone's Com. c. 5 Dalrymple's History of
Feudal Property; Sullivan's Lectures; Book of Fiefs; Spellman, Treatise of
Feuds and Tenures; Le Grand Coutumier; the Salic Laws; The Capitularies; Les
Establissements de St. Louis; Assizes de Jerusalem; Poth. Des Fiefs. Merl.
Rep. Feodalite; Dalloz, Dict. Feodalit 6; Guizot, Essais sur I'Histoire de
France, Essai 5eme.
4. In the United States the feudal law never was in its full vigor,
though some of its principles are still retained. "Those principles are so
interwoven with every part of our jurisprudence," says Ch. J. Tilghman, 3 S.
& R. 447, "that to attempt to eradicate them would be to destroy the whole.
They are massy stones worked into the foundation of our legal edifice. Most
of the inconveniences attending them, have been removed, and the few that
remain can be easily removed, by acts of the legislature." See 3 Kent, Com.
509, 4th ed.
FIAR, Scotch law. He whose property is burdened with a life rent. Ersk. Pr.
of L. Scot. B. 2, t. 9, s. 23.
FIAT, practice. An order of a judge, or of an officer, whose authority, to
be signified by his signature, is necessary to authenticate the particular
acts.
FICTION OF LAW. The assumption that a certain thing is true, and which gives
to a person or thing, a quality which is not natural to it, and establishes,
consequently, a certain disposition, which, without the fiction, would be
repugnant to reason and to truth. It is an order of things which does not
exist, but which the law prescribe; or authorizes it differs from
presumption, because it establishes as true, something which is false;
whereas presumption supplies the proof of something true. Dalloz, Dict. h.t.
See 1 Toull. 171, n. 203; 2 Toull. 217, n. 203; 11 Toull. 11, n. 10, note
2; Ferguson, Moral Philosophy, part 5, c. 10, s. 3 Burgess on Insolvency,
139, 140; Report of the Revisers of the Civil Code of Pennsylvania, March 1,
1832, p. 8.
2. The law never feigns what is impossible fictum est id quod factum
non est sed fieri potuit. Fiction is like art; it imitates nature, but never
disfigures it it aids truth, but it ought never to destroy it. It may well
suppose that what was possible, but which is not, exists; but it will never
feign that what was impossible, actually is. D'Aguesseau, Oeuvres, tome iv.
page 427, 47e Plaidoyer.
3. Fictions were invented by the Roman praetors, who, not possessing
the power to abrogate the law, were nevertheless willing to derogate from
it, under the pretence of doing equity. Fiction is the resource of weakness,
which, in order to obtain its object, assumes as a fact, what is known to be
contrary to truth: when the legislator desires to accomplish his object, he
need not feign, he commands. Fictions of law owe their origin to the
legislative usurpations of the bench. 4 Benth. Ev. 300.
4. It is said that every fiction must be framed according to the rules
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of law, and that every legal fiction must have equity for its object. 10 Co.
42; 10 Price's R. 154; Cowp. 177. To prevent, their evil effects, they are
not allowed to be carried further than the reasons which introduced them
necessarily require. 1 Lill. Ab. 610; Hawk. 320; Best on Pres. Sec. 20.
5. The law abounds in fictions. That an estate is in abeyance; the
doctrine of remitter, by which a party who has been disseised of his
freehold, and afterwards acquires a defective title, is remitted to his
former good title; that one thing done today, is considered as done, at a
preceding time by the doctrine of relation; that, because one thing is
proved, another shall be presumed to be true, which is the case in all
presumptions; that the heir, executor, and administrator stand by
representation, in the place of the deceased are all fictions of law. "Our
various introduction of John Doe and Richard Roe," says Mr. Evans, (Poth. on
Ob. by Evans, vol. n. p. 43,) "our solemn process upon disseisin by Hugh
Hunt; our casually losing and finding a ship (which never was in Europe) in
the parish of St. Mary Le Bow, in the ward of Cheap; our trying the validity
of a will by an imaginary, wager of five pounds; our imagining and
compassing the king's death, by giving information which may defeat an
attack upon an enewy's settlement in the antipodes our charge of picking a
pocket, or forging a bill with force and arms; of neglecting to repair a
bridge, against the peace of our lord the king, his crown and dignity are
circumstances, which, looked at by themselves, would convey an impression of
no very favorable nature, with respect to the wisdom of our jurisprudence."
Vide 13 Vin. Ab. 209; Merl. Rep. h.t.; Dane's Ab. Index, h.t.; and Rey,
des Inst. de I'Angl. tome 2, p. 219, where he severely cesures these
fictions as absurd and useless.
FICTITIOUS Pretended; supposed; as, fictitious actions; fictitious payee.
FICTITIOUS ACTIONS, Practice. Suits brought. on pretended rights.
2. They are sometimes brought, usually on a pretended wager, for the
purpose of obtaining the opinion of the court on a point of law. Courts of
justice were constituted for the purpose of deciding really existing
questions of right between parties, and they are not bound to answer
impertinent questions which persons think proper to ask them in the form of
an action on a wager. 12 East, 248. Such an attempt has been held to be a
contempt of court; and Lord Hardwicke in such a case committed the parties
and their attorneys. Rep. temp. Hardw. 237. See also Comb. 425; 1. Co. 83; 6
Cranch, 147-8. Vide Feigned actions.
3. The court of the king's bench fined an attorney forty pounds for
stating a special case for the opinion of the court, the greater part of
which statement was fictitious. 3 Barn. & Cr. 597; S. C. 10 E. C. L. R. 193.
FIDUCIA, civil law. A contract by which we sell a thing to some one, that
is, transmit to him the property of the thing, with the solemn forms of
emancipation, on condition that he will sell it back to us. This species of
contract took place in the emancipation of children, in testaments, and in
pledges. Poth. Pand. h.t.
FIDUCIARY. This term is borrowed from the civil law. The Roman laws called a
fiduciary heir, the person who was instituted heir, and who was charged to
deliver the succession to a person designated by the testament. Merl.
Repert. h.t. But Pothier, Pand. vol. 22, h.t., says that fiduciarius heres
properly signifies the person to whom a testator has sold his inheritance,
under the condition that he should sell it to another. Fiduciary may be
defined to be, in trust, in confidence.
2. A fiduciary contract is defined to be, an agreement by which a
person delivers a thing to another, on the condition that he will restore it
to him. The following formula was employed:' Ut inter bonos agere opportet,
ne propter te fidemque tuam frauder. Cicer. de Offc. lib. 3, cap. 13; Lec.
du Dr. Civ. Rom. Sec. 237, 238. See 2 How. S. C. Rep. 202, 208; 6 Watts &
Serg. 18; 7 Watts, 415.
FIELD. A part of a farra separately enclosed; a close. 1 Chit. Pr. 160. The
Digest defines a field to be a piece of land without a house; ager est
locus, que sine villa est. Dig. 50, 16, 27.
FLORIDA. The name of one of the new states of the United States of America.
It was admitted into the Union by virtue of the act of congress, entitled An
Act for the admission of the states of Iowa and Florida into the Union,
approved March 3, 1845.
2. The constitution was adopted on the eleventh day of January,
eighteen hundred and thirty-nine. The powers of the government are divided
into three distinct branches, namely, the legislative, the executive, and
the judicial,
3.-1. Of the legislative power. 1. The legislative power of this
state shall be vested in two distinct branches, the one to be styled the
senate, the other the house of representatives, and both together, "The
General Assembly of the State of Florida," and the style of the laws shall
be, "Be it enacted by the Senate and House of Representatives of the State
of Florida in General Assembly convened."
4.-2. A majority of each house shall constitute a quorum to do
business, but smaller number may adjourn from day to day, and may compel the
attendance of absent members in such. manner, and under such penalties, as
each house may prescribe.
5.-3. Each house may determine the rules of its own proceedings,
punish its members for disorderly behaviour, and, with the consent of two-
thirds, expel a member; but not a second time for the same cause.
6.-4. Each house, during the session, may punish by imprisonment, any
person not a member, for disrespectful or disorderly behaviour in its
presence, or for obstructing any of its proceedings, provided such
imprisonment shall not extend beyond the end of the session.
7.-5. Each house shall keep a journal of its proceedings, and cause
the same to be published immediately after its adjournment, and the yeas and
nays of, the members of each house shall be taken, and entered upon the
journals, upon the final passage of every bill, and may, by any two members,
be required upon any other question, and any member of either house shall
have liberty to dissent from, or protest against, any act or resolution
which he may think injurious to the public, or an individual, and have the
reasons of his dissent entered on the journal.
8.-6. Senators and representatives shall in all cases, except
treason, felony or breach of the peace, be privileged from arrest during the
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session of the general assembly, and in going to, or returning from the
same, allowing one day for every twenty miles such member may reside from
the place at which the general assembly is convened; and for any speech or
debate, in either house, they shall not be questioned in any other place.
9.-7. The general assembly shall make provision, by law, for filling
vacancies that may occur in either house, by the death, resignation, (or
otherwise,) of any of its members.
10.-8. The doors of each house shall be open, except on such occasions
as, in the opinion of the house, the public safety may imperiously require
secrecy.
11.-9. Neither house shall, without the consent of the other, adjourn
for more than three days, nor, to any other place than that in which they
may be sitting.
12.-10. Bills may originate in either house of the general assembly,
and all bills passed by one house may be discussed, amended or rejected by
the other; but no bill shall have the force of law until, on three several
days, it be read in each house, and free discussion be allowed thereon,
unless in cases of urgency, four-fifths of the house in which the same shall
be depending, may deem it expedient to dispense with the rule; and every
bill, having passed both houses, shall be signed by the speaker and
president of their respective houses.
13.-11. Each member of the general assembly shall receive from the
public treasury such compensation for his services,as may be fixed by law,
but no increase of compensation shall take effect during the term for which
the representatives were elected when such law passed.
14.-12. The sessions of the general assembly shall be annual, and
commence on the fourth Monday in November in each year, or at such other
time as may be prescribed by law.
15. The senators will be considered with regard, 1. To the qualification
of the electors. 2. The qualification of the members. 3. The number of
members. 4. The time of their election. 5. The length of service.
16.-1st. The senators shall be elected by the qualified voters. Const.
art. 4, s. 5.
17.-2d. No man shall be a senator unless be be a white man, a citizen
of the United States, and shall have been an inhabitant of Florida two years
next preceding his election, and the last year thereof a resident of the
district or county for which he shall be chosen, and shall have attained the
age of twenty-five years. Const. art. 4, s. 5. And to this there are the
following exceptions:
All banking officers of any bank in the state are ineligible until
after twelve-months after they shall go out of such office. Art. 6, 3.
All persons who shall fight, or send, or accept a duel, the probable
issue of which may be death, whether committed in or out of the state. Art.
6, s. 5.
All collectors or holders of public money. Art. 6, s. 6.
All ministers of the Gospel. Art. 6, s. 1 0.
All persons who shall have procured their elections by bribery.
All members of congress, or persons holding or exercising any, office
of profit under the United States, or under a foreign power. Art. 6, s. 18.
18.-3d. The number of senators may be varied by the general assembly,
but it shall never be less, than one-fourth, nor more than one-half of the
whole number of the house of representatives. Art. 9, s. 2.
19.-4th. The time and place of their election is the same as those for
the house of representatives. Art. 4, s. 5.
20.-5th. They are elected for the term of two years. Art. 4, s. 5.
21. The house of representatives will be considered under the same
beads.
22.-1st. Members of the house of representatives shall be chosen by
the qualified voters.
23.-2d. No person shall be a representative unless he be a white man,
a citizen of the United States, and shall have been an inhabitant of the
state two years next preceding his election, and the last year thereof a
resident of the county for which he shall be chosen, and have attained the
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age of twenty-one years. Art. 4, s. 4. And the same persons are
disqualified, who are disqualified as senators.
24.-3d. The number of members shall never exceed sixty. Art. 4, s. 18.
25.-4th. The. time of holding the election is the first Monday of
October annually.
26.-5th. Members of the house of representatives are elected for one
year from the day of the commencement of the general election, and no
longer. Art. 4, s. 2.
27.-2. Of the executive. The supreme executive power is vested in a
chief magistrate, who is styled the governor of Florida. Art. 3.
28. No person shall be eligible to the office of governor, unless he
shall have attained the age of thirty years, shall have been a citizen of
the United States ten years, or an inhabitant of Florida at the time of the
adoption of the constitution, (being a citizen of the United States,) and
shall have resided in Florida at least five years preceding the day of
election.
29. The governor shall be elected for four years, by the qualified
electors, at the time and place where they shall vote for representatives;
and shall remain in office until a successor shall be chosen and qualified,
and shall not be eligible to reelection until the expiration of four years
thereafter.
30. His general powers are as follows: 1. He is commander-in-chief of
the army, navy, and militia of the state. 2. He shall take care that the
laws be faithfully executed. 3. He may require information from the
officers of the executive department. 4. He may convene the general
assembly by proclamation upon particular occasions. 5. He shall, from time
to time, give information to the general assembly. 6. He may grant pardons,
after conviction, in all cases except treason and impeachment, and in these
cases, with the consent of the senate; and he may respite the sentence in
these cases until the end of the next session of the senate. 7. He, may
approve or veto bills.
31. In case of vacancy in the office of governor, the president of the
senate shall act in his place, and in case of his default, the speaker of
the house of representatives shall fill the office of governor. Art. 3, s.
21.
32.-3. Of the judicial department. 1. The judicial power of this
state, both as to matters of law and equity, shall be vested in a supreme
court, courts of chancery, circuit courts, and justices of the peace:
Provided, the, general assembly may also vest such criminal jurisdiction as
may be deemed necessary in corporation courts; but such jurisdiction shall
not extend to capital offences. Art. 5, s. 1.
33.-2. Justices of the supreme court, chancellors, and judges of the
circuit courts, shall be elected by, the concurrent vote of a majority of
both houses of the general assembly. Art. 5, s. 11.
34.-3. The judges of the circuit courts shall, at the first session.
of the general assembly to be holden under the constitution, be elected for
the term of five years and shall hold their office, for that term, unless
sooner removed, under the provisions in the constitution; and at the
expiration of five years, the justices of the supreme courts, and the judges
of the circuit courts, shall be elected for the term of, and during their
good behaviour.
35. Of the supreme court. 1. The powers of the supreme court are vested
in, and its duties performed by, the judges of the several circuit courts,
and they, or a majority of them, shall hold such session of the supreme
court, and at such time and place as may be directed by law. Art. 5, s. 3.
But no justice of the supreme court shall sit as judge, or take any part in
the appellate court, on the trial or hearing of any case which shall have
been decided by him in the court below. Art. 5, s. 18.
36.-2. The supreme court, except in cases otherwise directed in this
constitution, shall have appellate jurisdiction only. Provided, that the
said court shall always have power to issue writs of injunction, mandamus,
quo warranto, habeas corpus, and such other remedial and original writs, as
may be necessary to give it a general superintendance and control of all
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other courts. Art. 5, s. 2.
37.-3. The supreme court shall exercise appellate jurisdiction in all
cases brought by appeal or writ of error from the several circuit courts,
when the matter in controversy exceeds in amount or value fifty dollars.
38. Of the circuit courts. 1. The state is to be divided into circuits,
and the circuit courts, held within such circuits, shall have original
jurisdiction in all matters, civil and criminal, within the state, not
otherwise excepted in this constitution. Art. 5, s. 6.
FLORIN. The name of a foreign coin. In all computations of customs, the
florin of the southern states of Germany, shall be estimated at forty cents;
the florin of the Austrian empire, and of the city of Augsburg, at forty-
eight and one-half cents. Act March 22, 1846. The florin of the United
Netherlands is computed at the rate of forty cents. Act of March 2, 1799,
Sec. 61. Vide Foreign Coins.
FLOTSAM, or FLOTSAN. A name for the goods which float upon the sea when a
ship is sunk, in distinction from Jetsam, (q.v.) and Legan. (q.v.) Bract.
lib. 2, c. 5; 5 Co. 106; Com. Dig. Wreck, A Bac. Ab. Court of Admiralty, B.
FLUMEN, civ. law. The name of a servitude which consists in the right of
turning the rain water, gathered in a spout, on another's land., Ersk. Inst.
B. 2, t. 9, n. 9. Vicat, ad vocem. See Stillicidium.
FOEDUS. A league; a compact.
FOENUS NAUTICUS. The name given to marine interest. (q.v.)
2. The amount of such interest is not limited by law, because the
lender runs the risk of losing, his principal. Ersk. Inst. B. 4, t. 4, n.
76. See Marine Interest.
FOETICIDE, med. jur. Recently, this term has been applied to designate the
act by which criminal abortion is produced. 1 Beck's Med. Jur. 288; Guy,
Med. Jur. 133. See Infanticide; Prolicide.
FOETURA, civil law. The produce of animals, and the fruit of other property,
which are acquired to the owner of such animals and property, by virtue of
his right. Bowy. Mod. C. L. c. 14, p. 81.
FOETUS, med. jur. The unborn child. The name of embryo is sometimes given to
it; but, although the terms are occasionally used indiscriminately, the
latter is more frequently employed to designate the state of an unborn child
during the first three months after conception, and by some until
quickening. A foetus is sometimes described by the uncouth phrase of infant
in ventre sa mere.
2. It is sometimes of great importance, particularly in criminal law,
to ascertain the age of the foetus, or how far it has progressed towards
maturity. There are certain signs which furnish evidence on this subject,
the principal of which are, the size and weight, and the formation of
certain parts as the cartilages, bones, &c. These are not always the same,
much of course must depend upon the constitution and health of the mother,
and other circumstances which have an influence on the foetus. The average
length and weight of the foetus at different periods of gestation, as
deduced by Doctor Beck, from various observers, as found by Maygrier, is
here given.
ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ Beck. ³ Maygrier. ³ Beck. ³ Maygrier. ³
³ ³ ³ ³ ³
ÃÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ´
³ Length. ³ Weight. ³
³ ³ ³
ÚÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ´
Page 633
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³30 days. ³3 to 5 lines. ³10 to 12 lines.³ ³9 to 10 grains.³
³ 2 Months³2 inches. ³4 inches. ³2 ounces. ³5 drachms. ³
³ 3 do. ³3« inches. ³6 inches. ³2 to 3 ounces. ³2« ounces. ³
³ 4 do. ³5 to 6 inches. ³8 inches. ³4 to 6 ounces. ³7 to 8 ounces. ³
³ 5 do. ³7 to 9 inches. ³10 inches. ³9 to 10 ounces.³16 ounces. ³
³ 6 do. ³9 to 12 inches. ³12 inches. ³1 to 2 pounds. ³2 pounds. ³
³ 7 do. ³12 to 14 inches.³14 inches. ³2 to 3 pounds. ³3 pounds. ³
³ 8 do. ³16 inches. ³16 inches. ³3 to 4 pounds. ³4 pounds. ³
ÀÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÙ
3. The discordance apparent between them proves that the observations
which have been made, are only an approximation to truth.
4. It is proper to remark that the Paris pound poids de marc, which was
the weight used by Maygrier, differs from avoirdupois weight used by Dr.
Beck. The pound poids de marc, of sixteen ounces, contains 9216 Paris
grains, whilst the avoirdupois contains only 8532.5 Paris grains. The Paris
inch is 1.065977 English inch. Vide, generally, 1 Beck's Med. Jur. 239; 2
Dunglison's Human Physiology, 391; Ryan's Med. Jur. 137; 1 Chit. Med. Jur.
403; I Briand, Med. Leg. prem. partie, c. 4, art. 2; and the articles Birth;
Dead Born; Foeticide; In ventre sa mere; infanticide; Life; and Quick with
child.
FOLCMOTE. The name of a court among the Saxons. It was literally an assembly
of the people or inhabitants of the tithing or town, its jurisdiction
extended over disputes between neighbors, as to matters of trespass in
meadows, corn, and the like.
FOLD-COURSE, Eng. law. By this phrase is understood land used as a
sheepwalk; it also signifies land to which the sole right of folding the
cattle of others is appurtenant; sometimes it means merely such right of
folding. It is also used to denote the right of folding on another's land,
which is called common foldage. Co. Litt. 6 a, note 1; W. Jo. 375 Cro. Cal.
432; 2 Vent. 139.
FOLK-LAND, Eng. law. Land formerly held at the pleasure of the lord, and
resumed at his discretion. It was held in villeinage. 2 Bl. Com. 90.
FOOT. A measure of length, containing one-third of a yard, or twelve inches.
See Ell. Figuratively, it signifies the conclusion, the end; as, the foot of
the fine, the foot of the account.
FOOT OF THE FINE, estates, conveyancing. The fifth part of the conclusion of
a fine. It includes the whole matter, reciting the names of the parties,
day, year, and place, and before whom it was acknowledged or levied. 2 Bl.
Com. 351.
FOR THAT, pleading. It is a maxim in law, regulating alike every form of
action, that the plaintiff shall state his complaint in positive and direct
terms, and not by way of recital. "For that," is a positive allegation; "For
that whereas," in Latin "quod cum," (q.v.) is a recital. Hamm. N. P. 9.
FORBEARANCE, contracts. The act by which a creditor waits for the payment of
the debt due him by the debtor, after it has become due.
2. When the creditor agrees to forbear with his debtor, this is a
sufficient consideration to support an assumpsit made by the debtor. 4 John.
R. 237; 2. Nott & McCord, 133; 2 Binn. R. 510; Com. Dig. Action upon the
case upon assumpsit, B 1; Dane's Ab. Index, h.t.; 1 Leigh's N. P. 31; 1
Penna. R. 385; 4 Wash. C. C. R. 148; 5 Rawle's R. 69.
3. The forbearance must be of some right which can be enforces with
effect against the party forborne; if it cannot be so enforced by the party
forbearing, he has sustained no detriment, and the party forborne has
derived no benefit. 4 East, 455 5 B. & Ald. 123. See 1 B. & A. 605 Burge on
Sur. 12, 13. Vide Giving time.
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FORCE. A power put in motion. It is: 1. Actual; or 2. Implied.
2.-1. If a person with force break a door or gate for an illegal
purpose, it is lawful to oppose force to force; and if one enter the close
of another, vi et armis, he may be expelled immediately, without a previous
request; for there is no time to make a request. 2 Salk. 641; 8 T. R. 78,
357. And see tit. Battery, Sec. 2. When it is necessary to rely upon actual
force in pleading, as in the case of a forcible entry, the words "manu
forti," or with a strong hand should be adopted. 8 T. R. 357 358. But in
other cases, the words "vi et armis," or "with force and arms," is
sufficient. Id.
3.-2. The entry into the ground of another, without his consent, is
breaking his close, for force is implied in every trespass quare clausum
fregit. 1 Salk. 641; Co. Litt. 257, b; 161, b; 162, a; 1 Saund: 81, 140, n.
4 8 T: R. 78, 358; Bac. Ab. Trespass; this Dict. tit. Close. In the case of
false imprisonment, force is implied. 1 N. R. 255. And the same rule
prevails where a wife, a daughter or servant, have been enticed away or
debauched, though in fact they consented, the law considering them incapable
of consenting. See 3 Wils. 18; Fitz. N. B. 89, 0; 5 T. R. 361; 6 East, 387;
2 N. R. 365, 454.
4. In general, a mere nonfeasance cannot be considered as forcible; for
where there has been no act, there cannot be force, as in the case of the
mere detention of goods without an unlawful taking. 2 Saund. 47, k 1. In
general, by force is understood unlawful violence. Co. Litt. 161, b.; Bouv.
Inst. Index, h.t. Vide Arms.
FORCE AND ARMS. The same as vi et armis. (q.v.)
FORCED HEIRS. In Louisiana they are those persons whom the testator or donor
cannot deprive of the portion of his estate reserved for them by law,
except in cases where he has a just cause to disinherit them. Civ. Code of
Lo. art. 1482. As to the portion of the estate they are entitled to, see the
article Legitime. As to the causes for which forced heirs may be deprived of
this right, see Disinherison.
FORCIBLE ENTRY or DETAINER, crim. law. An offence committed by unlawfully
and violently taking or keeping possession of lands and tenements, with
menaces, force and, arms, and without the authority of law. Com. Dig. h.t.
2. The proceedings in case of forcible entry or detainer, are regulated
by statute in the several states. ( q.v.) The offence is generally punished
by indictment. 4 Bl. Com. 148 Russ. on Cr. 283. A forcible entry and a
forcible detainer, are distinct offences. 1 Serg. & Rawle, 124; 8 Cowen,
226.
3. In the civil and French law, a similar remedy is given for thing
offence. The party injured has two actions, a criminal or a civil. The
action is called actio interdictum undevie. In French, l'action
reintegrande. Poth. Proc. Civ. Partie 2, c. 3, art. 3; 11 Toull. Nos. 123,
134, 135, 137, pp. 179, 180, 182, and, generally, from p. 163. Vide,
generally, 3 Pick. 31; 3 Halst. R. 48; 2 Tyler's R. 64; 2 Root's R. 411; Id.
472; 4 Johns. R. 150; 8 Johns. R. 44; 10 Johns. R. 304; 1 Caines' R. 125; 2
Caines' R. 98; 9 Johns. R. 147; 2 Johns. Cas. 400; 6 Johns. R. 334; 2 Johns.
R. 27; 3 Caines' R. 104; 11 John. R. 504; 12 John. R. 31; 13 Johns. R. 158;
Id. 340; 16 Johns. R. 141; 8 Cowen, 226; 1 Coxe's R. 258; Id. 260; 1 South.
R. 125; 1 Halst. R. 396; 3 Id. 48; 4 Id. 37; 6 Id. 84; 1 Yeates, 501; Addis.
R. 14, 17, 43, 316, 355; 3 Serg. & Rawle, 418; 3 Yeates, 49; 4 Dall. 212; 4
Yeates, 326; 3 Harr. & McHen. 428; 2 Bay, R. 355; 2 Nott & McCord, 121; 1
Const. R. 325; Cam. & Norw. 337, 340; Com. Dig. h.t.; Vin. &b. h.t.; Bac.
Ab. h.t.; 2 Chit. Pr. 281 to 241.
4. The civil law punished even the owner of an estate, in proportion to
the violence used, when he forcibly took possession of it, a fortiori, a
stranger. Domat, Supp. au Dr. Pub. 1. 3, t. 4, s. 3.
FORECLOSURE, practice. A proceeding in chancery, by which the mortgagor's
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right of redemption of the mortgaged premises is barred or foreclosed
forever.
2. This takes place when the mortgagor has forfeited his estate by non-
payment of the money due on the mortgage at the time appointed, but still
retains the equity of redemption; in such case the mortgagee may file a
bill, calling on the mortgagor, in a court of equity, to redeem his estate
presently, or in default thereof, to be forever closed or barred from any
right of redemption.
3. In some cases, however, the mortgagee obtains a decree for a sale of
the land, under the direction of an officer of the court, in which case the
proceeds are applied to the discharge of encumbrances, according to their
priority. This practice has been adopted in Indiana, Kentucky, Maryland,
South Carolina, Tennessee, and Virginia. 4 Kent, Com., 180. When it is the
practice to foreclose without a sale, its severity is mitigated by enlarging
the time of redemption from six months to six months, or for shorter
periods, according to the equity arising from the circumstances. Id. Vide 2
John. Ch. R, 100; 6 Pick. R. 418; 1 Sumn. R. 401; 7 Conn. R. 152; 5 N; H.
Rep. 30; 1 Hayw. R. 482; 5 Han. R. 554; 5 Yerg. 240; 2 Pick. R. 40; 4 Pick.
R. 6; 2 Gallis. 154; 9 Cowen's R. 346; 4 Greenl. R. 495; Bouv. Inst. Index,
h.t.
FOREHAND RENT, Eng. law. A species of rent which is a premium given by the
tenant at the time of taking the lease, as on the renewal of leases by
ecclesiastical corporations, which is considered in the nature of an
improved rent. 1 T. R. 486; 3 T. R. 461; 3 Atk. 473; Crabb. on R. P. Sec.
155.
FOREIGN. That which belongs to another country; that which is strange. 1
Peters, R. 343.
2. Every nation is foreign to all the rest, and the several states of
the American Union are foreign to each other, with respect to their
municipal laws. 2 Wash. R. 282; 4 Conn. 517; 6 Conn. 480; 2 Wend. 411 1
Dall. 458, 463 6 Binn. 321; 12 S. & R. 203; 2 Hill R. 319 1 D. Chipm. 303 7
Monroe, 585 5 Leigh, 471; 3 Pick. 293.
3. But the reciprocal relations between the national government and the
several states composing the United States are not considered as foreign,
but domestic. 9 Pet. 607; 5 Pet. 398; 6 Pet. 317; 4 Cranch, 384; 4 Gill &
John. 1, 63. Vide Attachment, for foreign attachment; Bill of exchange, for
foreign bills of exchange; Foreign Coins; Foreign Judgment; Foreign Laws;
Foreigners.
FOREIGN ATTACHMENT. The name of a writ. By virtue of a foreign attachment,
the property of an absent debtor is seised for the purpose of compelling an
appearance, and, in default of that, to pay the claim of the plaintiff. Vide
Attachment.
FOREIGN COINS, com. law. The money of foreign nations.
2. Congress have, from time to time, regulated the rates at which
certain foreign coins should pass. The acts now in force are the following.
3. The act of June 25, 1834, 4 Shaisw. Cont. of Story's L. U. S. 2373,
enacts, sec. 1. That from and after the passage of this act, the following
silver coins shall be of the legal value and shall pass current as money
within the United States, by tale, for the payment of all debts and demands,
at the rate of one hundred cents the dollar, that is to say, the dollars of
Mexico, Peru, Chili,.and Central America, of not less weight than four
hundred and fifteen grains each, and those re-stamped in Brazil of the like
weight, of not less fineness than ten ounces, fifteen pennyweights of pure
silver, in the troy pound of twelve ounces of standard silver; and five
franc pieces of France, when of not less fineness than ten ounces and
sixteen pennyweights in twelve ounces troy weight of standard silver, and
weighing not less than three hundred and eighty-four grains each, at the
rate of ninety-three cents each.
4. The act of June 28, 1834, 4 Sharsw. Cont. of Story's L. U. S, 2377,
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enacts) sect. 1. That from and after the thirty-first day of July next, the
following gold coins shall pass current as money within the United States,
and be receivable in all payments, by weight, for the payment of all debts
and demands, at the rates following, that is to say: the gold coins of Great
Britain and Portugal and Brazil, of not less than twenty-two, carats fine,
at the rate of ninety-four cents and eight-tenths of a cent per pennyweight;
the gold coins of France nine-tenths fine, at the rate of ninety-three cents
and one-tenth of a cent per pennyweight; and the gold coins of Spain,
Mexico, and Colombia, of the fineness of twenty carats three. grains and
seven-sixteenths, of a grain, at the rates of eighty-nine events and nine-
tenths of a cent per pennyweight.
5. By the act of. March 3, 1823, 3 Story's L. U. S. 1923, it is
enacted, sect. 1. That from and after the passage of this act, the following
gold coins shall be received in all payments on account of public lands, at
the several and respective rates following, and not otherwise, viz.: the
gold coins of Great Britain and Portugal, and of their present standard, at
the rate of one hundred cents for every twenty-seven grains, or eighty-eight
cents and eight-ninths per pennyweight; the gold coins of France of their
present standard, at the rate of one hundred cents for every twenty-seven
and a half grains, or eighty-seven and a quarter cents per pennyweight; and
the gold coins of Spain of their present standard, at the rate of one
hundred cents for every twenty-eight and a half grains or, eighty-four cents
per pennyweight.
6. The act of March 2, 1 799, 1 Story's L. U. S. 573, to regulate the
collection of duties on imports and tonnage, sect. 61, p. 626, enacts, That
the ad valorem rates of duty upon goods, wares, and merchandise, at the
place of importation, shall be estimated by adding twenty per cent to the
actual costs thereof, if imported from the Cape of Good Hope, or from any
place beyond the same; and ten per cent. on the actual cost thereof, if
imported from any other place or country, including all charges;
commissions, outside packages, and insurance, only excepted. That all
foreign coins and currencies shall be estimated at the following rates; each
pound sterling of Great Britain, at four dollars and forty-four cents; each
livre tournois of France, at eighteen and a half cents; each florin, or
guilder of the United Netherlands, at forty cents; each marc-banco of
Hamburg, at thirty-three and one-third cents; each rix dollar of Denmark, at
one hundred cents: each rial of plate, and each rial o vellon, of Spain, the
former at ten cents, the latter at five cents, each; each milree of
Portugal, at one dollar and twenty-four cents; each pound sterling of
Ireland, at four dollars and ten cents; each tale o China, at one dollar and
forty-eight cents; each pagoda of India, at one dollar and ninety four
cents; each rupee, of Bengal, at fifty-five cents and one half; and all
other denominations of money, in value as nearly as may be to the said
rates, or the intrinsic value thereof, compared with money of the United
States: Provided, that it shall be lawful for the president of the United
States to cause to be established fit and proper regulations for estimating
the duties on goods, wares, and merchandise, imported into the United
States, in respect to which the original cost shall be exhibited in a
depreciated currency, issued and circulated under authority of any foreign
government.
7. By the act of July 14 1832, s 16, 4 Sharsw. Cont. of Story's L. U.
S. 2326, the law is changed as to the value of the pound sterling, in
calculating the rates of duties. It is thereby enacted, that from and after
the said third day of March, one thousand eight hundred and thirty-three, in
calculating the rate of duties, the pound sterling shall be considered and
taken as of the value of four dollars and eighty cents.
8. The act of March 3, 1843, provides, That in all computations of the
value of foreign moneys of account at the custom houses of the United
States, the thaler of Prussia shall be deemed and taken to be of the value
of sixty-eight and one-half cents; the mii-reis of Portugal shall be deemed
and taken to be of the value of one hundred and twelve cents; the rix dollar
of Bremen shall be deemed and taken to be of the value of seventy-eight and
three quarter cents; the thaler of Bremen, of seventy-two grotes, shall be
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deemed and taken to be of the value of seventy-one cents; that the mil-reis
of Madeira shall be deemed and taken to be of the value of one hundred
cents; the mil-reis of the Azores shall be deemed and taken to be of the
value of eighty-three and one-third cents; the marc-banco of Hamburg shall
be deemed and taken to be of the value, of thirty-five cents; the rouble of
Russia shall be deemed and taken to be of the value of seventy-five cents;
the rupee of British India shall be deemed and taken to be of the value of
forty-four and one half cents; and all former laws inconsistent herewith are
hereby repealed.
9. And the act of May 22, 1846, further directs, That in all
computations at the custom-house, the foreign coins and money of account
herein specified shall be estimated as follows, to wit: The specie dollar of
Sweden and Norway, at one hundred and six cents. The specie dollar of
Denmark, at one hundred and five cents. The thaler of Prussia and of the
Northern States of Germany, at sixty-nine cents. The florin of the Southern
States of Germany, at forty cents. The florin of the Austrian empire, and of
the city of Augsburg, at forty-eight and one half cents. The lira of the
Lombardo-Venetian Kingdom, and the lira of Tuscany, at sixteen cents. The
franc of France, and of Belgium, and the lira of Sardinia, at eighteen cents
six mills. The ducat of Naples, at eighteen cents. The ounce of Sicily, at
two dollars and forty cents. The pound of the British provinces of Nova
Scotia, New Brunswick, Newfoundland, and Canada, at four dollars. And all
laws inconsistent with this act are hereby repealed.
FOREIGN JUDGMENT, evidence, remedies. A judgment rendered in a foreign
state.
2. In Louisiana it has been decided that a judgment rendered by a
Spanish tribunal, under the former government of the country, is not a
foreign judgment. 4 M. R. 301 Id. 310.
3. The subject will be considered with regard, 1st. To the manner of
proving such judgment; and 2d. Its efficacy.
4. - 1. Foreign judgments are authenticated in various ways; 1. By an
exemplification, certified under the great seal of the state or country
where it was rendered. 2. By a copy proved to be a true copy. 3. By the
certificate of an officer authorized by law, which certificate must, itself,
be properly authenticated. 2 Cranch, 238; 2 Caines' R. 155; 5 Cranch, 335; 7
Johns. R. 514 Mass. R. 273 2 Munf. R. 43 4 Camp. R. 28 2 Russ. on Cr. 723.
There is a difference between the judgments of courts of common law
jurisdiction and courts of admiralty, as to the mode of proof of judgments
rendered by them. Courts of admiralty are under the law of nations;
certificates of such judgments with their seals affixed, will therefore be
admitted in evidence without further proof. 5 Cranch, 335; 3 Conn. R. 171.
5. - 2. A judgment rendered in a foreign country by a court de jure, or
even a court de facto, 4 Binn. 371, in a matter within its jurisdiction, when
the parties litigant had been notified and have had an opportunity of being
heard, either establishing a demand, against the defendant or discharging
him from it, is of binding force. 1 Dall. R. 191; 9 Serg. & Rawle, 260; 10
Serg. & Rawle, 240; 1 Pet. C. C. R. 155; 1 Spears, Eq. Cas. 229; 7 Branch,
481. As to the plea of the act of limitation to a suit on a foreign
judgment, see Bac. Ab. h.t.; 2 Vern. 540; 5 John. R. 132; 13 Serg. & Rawle,
395; 1 Speer's, Eq. Cas. 219, 229.
6. For the manner of proving a judgment obtained in a sister state, see
the article Authentication. For the French law in relation to the force of
foreign judgments, see Dalloz, Dict. mot Etranger, art. 6.
FOREIGN LAWS, evidence. The laws of a foreign country. They will be
considered with regard to, 1. The manner in which they are to be proved. 2.
Their effect when proved.
2. - 1. The courts do not judicially take notice of foreign laws, and
they must therefore be proved as facts. Cowp. 144; 3 Esp. C. 163 3 Campb. R.
166; 2 Dow & Clark's R. 171; 1 Cranch, 38; 2 Cranch, 187, 236, 237; 6
Cranch, 274; 2 Harr. & John. R. 193; 3 Gill & John. R. 234; 4 Conn. R. 517;
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4 Cowen, R. 515, 516, note; Pet. C. C. R. 229; 8 Mass. R. 99; 1 Paige's R.
220 10 Watts, R. 158. The manner of proof varies according to circumstances.
As a general rule the best testimony or proof is required, for no proof will
be received which pre-supposes better testimony attainable by the party who
offers it. When the best testimony cannot be obtained, secondary evidence
will be received. 2 Cranch, 237.
3. Authenticated copies of written laws and other public documents must
be produced when they can be procured but should they be refused by the
competent authorities, then inferior proof may be admissible. Id.
4. When our own government has promulgated a foreign law or ordinance
of a public nature as authentic, that is held sufficient evidence of its
existence. 1 Cranch, 38 1 Dall. 462; 6 Binn. 321 12 Serg. & Rawle, 203.
5. When foreign laws cannot be proved by some mode which the law
respects as being of equal authority to an oath, they must be verified by
the sanction of an oath.
6. The usual modes of authenticating them are by an exemplification
under the great seal of a state; or by a copy proved by oath to be a true
copy - or by a certificate of an officer authorized by law, which must,
itself, be duly authenticated. 2 Cranch, 238; 2 Wend. 411; 6 Wend. 475; 5
Serg. &. Rawle, 523; 15 Serg. & Rawle, 84: 2 Wash. C. C. R. 175.
7. Foreign unwritten laws, customs and usages, may be proved, and are
ordinarily proved by parol evidence; and when such evidence is objected to
on the ground that the law in question is a written law, the party objecting
must show that fact. 15 Serg. & R. 87; 2 L. R. 154. Proof of such unwritten
law is usually made by the testimony of witnesses learned in the law, and
competent to state it correctly under oath. 2 Cranch, 237; 1 Pet. C. C. R.
225; 2 Wash. C. C. R. 175; 15 Serg. & R. 84; 4 John. Ch. R. 520; Cowp. 174;
2 Hagg. R. App. 15 to 144.
8. In England certificates of persons in high authority have been
allowed as evidence in such cases. 3 Hagg. Eccl. R. 767, 769.
9. The public seal of a foreign sovereign or state affixed to a writing
purporting to be a written edict, or law, or judgment, is, of itself, the
highest evidence, and no further proof is required of such public seal. 2
Cranch, 238; 2 Conn. R. 85; 1 Wash. C. C. R. 363; 4 Dall. 413, 416; 6 Wend.
475; 9 Mod. 66.
10. But the seal of a foreign court is not, in general, evidence,
without further proof, and it must therefore be established by competent
testimony. 3 John. R. 310; 2 Harr. & John. 193; 4 Cowen, 526, n.; 3 East,
221.
11. As courts of admiralty are courts under the laws of nations, their
seals will be admitted as evidence without further proofs. 5 Cranch, 335; 3
Conn. 171. This is an exception to the general rule.
12. The mode of authenticating the laws and records of the several
states of the American Union, is peculiar, and will be found under the
article Authentication. It may hereby be observed that the rules prescribed
by acts of congress do not exclude every other mode of authentication, and
that the courts may admit, proof of the acts of the legislatures of the
several, states, although not authenticated under the acts of congress.
Accordingly a printed volume, purporting on its face to contain the laws of
a sister, state, is admissible, as prima facie evidence; to prove the
statute law of that state. 4 Cranch, 384; 12 S. & R. 203; 6 Binn, 321; 5
Leigh, 571.
13. - 2. The effect of such foreign laws, when proved, is properly
referable to the court; the object of the proof of foreign laws, is to
enable the court to instruct the jury what is, in point of law, the result
from foreign laws, to be applied to the matters in controversy before them.
The court are therefore to decide what is the proper evidence of the laws of
a foreign country; and when evidence is given of those laws, the court are
to judge of their applicability to the matter in issue. Story, Cont. of L.
Sec. 638 2 Harr. & John. 193. 219; 4 Conn. R. 517; 3 Harr. & John. 234, 242;
Cowp. 174. Vide Opinion.
FOREIGN NATION or STATE. A nation totally independent of the United States
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of America
2. The constitution authorizes congress to regulate commerce with
"foreign nations." This phrase does not include an Indian tribe, situated
within the boundaries of a state, and exercising the powers of government
and sovereignty. 5 Pet. R. 1. Vide Nation.
FOREIGN PLEA. One which, if true, carries the cause out of the court where
it is brought, by showing that the matter alleged is not within its
jurisdiction. 2 Lill. Pr. Reg. 374; Carth. 402; Lill. Ent. 475. It must be
on oath and before imparlance. Bac. Ab. Abatement, R.
FOREIGNERS. Aliens; persons born in another country than the United States,
who have not been naturalized. 1 Pet. R. 349. Vide 8 Com. Dig. 615, and the
articles Alien; Citizens.
FOREJUDGED THE COURT. An officer of the court who is expelled the same, is,
in the English law, said to be forejudged the court. Cunn. Dict. h.t.
FORMA PAUPERIS, English law. When a person is so poor that he cannot bear
the charges of suing at law or in equity, upon making oath that he is not
worth five pounds, and bringing a certificate from a counselor at law, that
he believes him to have a just cause, he is permitted to sue in forma
pauperis, in the manner of a pauper; that is, he is allowed to have original
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writs and subpoenas gratis, and counsel assigned him without fee. 3 Bl. Com.
400. See 3 John. Ch. R. 65; 1 Paige, R. 588; 3 Paige, R. 273; 5 Paige, R.
58; 2 Moll. R. 475; 1 Beat. R. 54.
FORMALITY. The conditions which must be observed in making contracts, and
the words which the law gives to be used in order to render them valid; it
also signifies the conditions which the law requires to make regular
proceedings.
FORMEDON, old English law. The writ of formedon is nearly obsolete, it
having been superseded by the writ of ejectment. Upon an alienation of the
tenant in tail, by which the estate in tail is discontinued, and the
remainder or reversion is by the failure, of the particular estate,
displaced and turned into a mere right, the remedy is by action of formedon,
(secundum formam doni,) because the writ comprehends the form of the gift.
This writ is in the nature of a writ of right, and the action of formedon is
the highest a tenant in tail can have. This writ is distinguished into three
species; a formedon in the descender, in the remainder, and in the reverter.
8 Bl. Com. 191 Bac. Ab. h.t.; 4 Mass. 64.
FORMER RECOVERY. A recovery in a former action.
2. It is a general rule, that in a real or personal action, a judgment
unreversed, whether it be by confession, verdict or demurrer, is a perpetual
bar, and may be pleaded to any new action of the same or a like nature, for
the same cause. Bac. Ab. Pleas, I 12, n. 2; 6 Co. 7; Hob. 4, 5 Ventr. 170.
3. There are two exceptions to this general rule. 1. The case of mutual
dealings between the parties, when the defendant omits to set off his
counter demand in that case he may recover in a cross action. 2. When the
defendant in ejectment neglects to bring forward his title, he may avail
himself of a new suit. 1 John Cas. 492, 502, 510. It is evident that in
these cases the cause of the second action is not the same as that of, the
first, and, therefore, a former recovery cannot be pleaded. In real actions,
one is not a bar to an, action of a. higher nature. 6 Co. 7. Vide 12 Mass.
337; Res Judicata; Thing Adjudged.
FORMULARY. A book of forms or precedents for matters of law; the form.
FORNICATION, crim. law. The unlawful carnal knowledge of an unmarried person
with another, whether the latter be married or unmarried. When the party is
married, the offence, as to him or her, is known by the name of adultery.
(q.v.) Fornication is, however, included in every case of adultery, as a
larceny is included in robbery. 2 Hale's P. C. 302.
FORPRISE. Taken before hand. This word is sometimes, though but seldom, used
in leases and conveyances, implying an exception or reservation. Forprise,
in another sense, is taken for any exaction. Cunn. Dict. h.t.
TO FORSWEAR, crim. law, torts. To swear to a falsehood.
2. This word has not the same meaning as perjury. It does not, ex vi
termini, signify a false swearing before an officer or court having
authority to administer an path, on an issue. A man may be forsworn by
making a false oath before an incompetent tribunal, as well as before a
lawful court. Hence, to say that a man is forsworn, will or will not be
slander, as the circumstances show that the oath was or was not taken before
a lawful authority. Cro. Car. 378; Lut. 1292; 1 Rolle, Ab. 39, pl. 7 Bac.
Ab. Slander, B 3; Cro. Eliz. 609 13 Johns. R. 80 Id. 48 12 Mass. 496 1
Johns. R. 505 2 Johns. R. 10; 1 Hayw. R, 116.
FORTHWITH. When a thing is to be done forthwith, it seems that it must be
performed as soon as by reasonable exertion, confined to that object, it may
be done. This is the import of the term; it varies, of course, with every
particular case. 4 Tyr. 837; Styles' Register, 452, 3.
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FORTIORI or A FORTIORI. An epithet for any conclusion or inference, which is
much stronger than another. "If it be so, in a feoffment passing a new
right, a fortiori, much more is it for the restitution of an ancient right."
Co. Litt. 253, 260.
FORTUITOUS EVENT. A term in the civil law to denote that which happens by a
cause which cannot be resisted. Louis. Code, art. 2522, No. 7. Or it is that
which neither of the parties has occasioned, or could prevent. Lois des Bat.
Pt. 2, c. 2, Sec. 1. It is also defined to be an unforeseen event which
cannot be prevented. Dict. de Jurisp. Cas fortuit.
2. There is a difference between a fortuitous event or inevitable
accident, and irresistible force. By the former, commonly called the act of
God, is meant any accident produced by physical causes, which are
irresistible; such as a loss by lightning or storms, by the perils of the
seas, by inundations and earthquakes, or by sudden death or illness. By the
latter is meant such an interposition of human agency, as is, from its
nature and power, absolutely uncontrollable. Of this nature are losses
occasioned by the inroads of a hostile army, or by public enemies. Story on
Bailm. Sec. 25; Lois des Bat. Pt. 2, c. 2, Sec. 1.
3. Fortuitous events are fortunate or unfortunate. The accident of
finding a treasure is a fortuitous event of the first class. Lois des Bat.
Pt. 2, c. 2, Sec. 2.
4. Involuntary obligations may arise in consequence of fortuitous
events. For example, when, to save a vessel from shipwreck, it is necessary
to throw goods overboard, the loss must be borne in common; there arises, in
this case, between the owners of the vessel and of the goods remaining on
board, an obligation to bear proportionably the loss which has been
sustained. Lois des Bit. Pt. 2, c. 2, Sec. 2. See, in general, Dig. 50, 17,
23; Id. 16, 3, 1; Id. 19, 2, 11; Id. 44, 7, 1; Id. 18, 6, 10 Id. 13, 6, 18;
Id. 26, 7, 50; Act of God; Accident; Perils of the Sea.
FORUM. This term signifies jurisdiction, a court of justice, a tribunal.
2. The French divide it into for exterieur, which is the authority
which human justice exercises on persons and property, to a greater or
lesser extent, according to the quality of those to whom it is entrusted;
and for interieur, which is the moral sense of justice which a correct
conscience dictates. Merlin, Repert. mot For.
3. By forum res sitae is meant the tribunal which has authority to
decide respecting something in dispute, located within its jurisdiction;
therefore, if the matter in controversy is land, or other immovable
property, the judgment pronounced in the forum res sitae is held to be of
universal obligation, as to all matters of right and title on which it
professes to decide, in relation to such property. And the same principle
applies to all other cases of proceedings in rem, where the subject is
movable property, within the jurisdiction of the court pronouncing the
judgment. Story, Const. Laws, Sec. 532, 545, 551, 591, 592; Kaims on Eq. B.
3, c. 8, s. 4 1 Greenl. Ev. Sec. 541.
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FRANK-MARRIAGE, English law. It takes place, according to Blackstone, when
lands are given by one man to another, together with a wife who is daughter
or kinswoman of the donor, to hold in frank-marriage. By this gift, though
nothing but, the word frank-marriage is expressed, the donees shall have the
tenements to them and the heirs of their two bodies begotten that is, they
are tenants in special tail. It is called frank or free marriage, because
the donees are liable to no service but fealty. This is now obsolete, even
in England. 2 Bl. Com. 115.
FRANK-TENEMENT, estates. Same as freehold, (q.v.) or liberum tenementum.
FRATER. A brother. Vide Brother.
FRATRICIDE, criminal law. He who kills his brother or sister. The crime of
such a person is also called fratricide.
FRAUD, TO DEFRAUD, torts. Unlawfully, designedly, and knowingly, to
appropriate the property of another, without a criminal intent.
2. Illustrations. 1. Every appropriation of the right of property of
another is not fraud. It must be unlawful; that is to say, such an
appropriation as is not permitted by law. Property loaned may, during the
time of the loan, be appropriated to the use of the borrower. This is not
fraud, because it is permitted by law. 2. The appropriation must be not only
unlawful, but it must be made with a knowledge that the property belongs to
another, and with a design to deprive him of the same. It is unlawful to
take the property of another; but if it be done with a design of preserving
it for the owners, or if it be taken by mistake, it is not done designedly
or knowingly, and, therefore, does not come within the definition of fraud.
3. Every species of unlawful appropriation, not made with a criminal intent,
enters into this definition, when designedly made, with a knowledge that the
property is another's; therefore, such an appropriation, intended either for
the use of another, or for the benefit of the offender himself, is
comprehended by the term. 4. Fraud, however immoral or illegal, is not in
itself a crime or offence, for want of a criminal intent. It only becomes
such in the cases provided by law. Liv. System of Penal Law, 789.
FRAUD, contracts, torts. Any trick or artifice employed by one person to
induce another to fall into an error, or to detain him in it, so that he may
make an agreement contrary to his interest. The fraud may consist either,
first, in the misrepresentation, or, secondly, in the concealment of a
material fact. Fraud, force and vexation, are odious in law. Booth, Real
Actions, 250. Fraud gives no action, however, without damage; 3 T. R. 56;
and in matters of contract it is merely a defence; it cannot in any case
constitute a new contract. 7 Vez. 211; 2 Miles' Rep. 229. It is essentially
ad hominem. 4 T. R. 337-8.
2. Fraud avoids a contract, ab initio, both at law and in equity,
whether the object be to deceive the public, or third persons, or one party
endeavor thereby to cheat the other. 1 Fonb. Tr. Equity, 3d ed. 66, note;
6th ed. 122, and notes; Newl. Cont. 352; 1 Bl. R. 465; Dougl. Rep. 450; 3
Burr. Rep. 1909; 3 V. & B. Rep. 42; 3 Chit. Com. Law, 155, 806, 698; 1 Sch.
& Lef. 209; Verpl. Contracts, passim; Domat, Lois Civ. p. 1, 1. 4, t. 6, s.
8, n. 2.
3. The following enumeration of frauds, for which equity will grant
relief, is given by Lord Hardwicke, 2 Ves. 155. 1. Fraud, dolus malus, may
be actual, arising from facts and circumstances of imposition, which is the
plainest case. 2. It may be apparent from the intrinsic nature and subject
of the bargain itself; such as no man in his senses, and not under delusion,
would make on the one hand, and such as no honest and fair man would accept
on the other, which are inequitable and unconscientious bargains. 1 Lev. R.
111. 3. Fraud, which may be presumed from the circumstances and condition of
the parties contracting. 4. Fraud, which may be collected and inferred in
the consideration of a court of equity, from the nature and circumstances of
the transaction, as being an imposition and deceit on other persons, not
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parties to the fraudulent agreement. 5. Fraud, in what are called catching
bargains, (q.v.) with heirs, reversioners) or expectants on the life of the
parents. This last seems to fall, naturally, under one or more of the
preceding divisions.
4. Frauds may be also divided into actual or positive and constructive
frauds.
5. An actual or positive fraud is the intentional and successful
employment of any cunning, deception, or artifice, used to circumvent,
cheat, or deceive another. 1 Story, Eq. Jur. Sec. 186; Dig. 4, 3, 1, 2; Id.
2, 14, 7, 9.
6. By constructive fraud is meant such a contract or act, which, though
not originating in any actual evil design or contrivance to perpetrate a
positive fraud or injury upon other persons, yet, by its tendency to deceive
or mislead. them, or to violate private or public confidence, or to impair
or injure the public interests, is deemed equally reprehensible with
positive fraud, and, therefore, is prohibited by law, as within the same
reason and mischief as contracts and acts done malo animo. Constructive
frauds are such as are either against public policy, in violation of some
special confidence or trust, or operate substantially as a fraud upon
private right's, interests, duties, or intentions of third persons; or
unconscientiously compromit, or injuriously affect, the private interests,
rights or duties of the parties themselves. 1 Story, Eq. ch. 7, Sec. 258 to
440.
7. The civilians divide frauds into positive, which consists in doing
one's self, or causing another to do, such things as induce a belief of the
truth of what does not exist or negative, which consists in doing or
dissimulating certain things, in order to induce the opposite party. into
error, or to retain him there. The intention to deceive, which is the
characteristic of fraud, is here present. Fraud is also divided into that
which has induced the contract, dolus dans causum contractui, and incidental
or accidental fraud. The former is that which has been the cause or
determining motive of the contract, that without which the party defrauded
would not have contracted, when the artifices practised by one of the
parties have been such that it is evident, without them, the other would not
have contracted. Incidental or accidental fraud is that by which a person,
otherwise determined to contract, is deceived on some accessories or
incidents of the contract; for example, as to the quality of the object of
the contract, or its price, so that he has made a bad bargain. Accidental
fraud does not, according to the civilians, avoid the contract, but simply
subjects the party to damages. It is otherwise where the fraud has been the
determining cause of the contract, qui causam dedit contractui; in that
case. the contract is void. Toull. Dr. Civ. Fr. Liv. 3, t. 3, c. 2, n. Sec.
5, n. 86, et seq. See also 1 Malleville, Analyse de la, Discussion de Code
Civil, pp. 15, 16; Bouv. Inst. Index, h.t. Vide Catching bargain; Lesion;
Voluntary Conveyance.
FRAUDS, STATUTE OF. The name commonly given to the statute 29 Car. II., c.
3, entitled "An act for prevention of frauds and perjuries." This statute
has been re-enacted in most. of the states of the Union, generally with
omissions, amendments, or alterations. When the words of the statute have
been used, the construction put upon them has also been adopted. Most of the
acts of the different states will be found in Anthon's Appendix to Shep.
Touchst. See also the Appendix to the second edition of Roberts on Frauds.
FRAUDULENT CONVEYANCE. A conveyance of property without any consideration of
value, for the purpose of delaying or hindering creditors. These are
declared void by the statutes 13 Eliz. c. 6, and 27 Eliz. c. 4, the
principles of which have been adopted in perhaps all the states of the
American Union. See Voluntary Conveyance.
2. But although such conveyance is void as regards purchasers and
creditors, it is valid as between the parties. 6 Watts, 429, 453; 5 Binn.
109; 1 Yeates, 291; 3 W. & S. 255; 4 Iredell, 102; 9 Pick. 93; 20 Pick. 247;
3 Mass. 573, 580; 4 Mass. 354; 1 Hamm. 469; 2 South. 738; 2 Hill, S. C. Rep.
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488; 7 John. 161; 1 Bl. 262.
FREE. Not bound to servitude; at liberty to act as one pleases. This word is
put in opposition to slave.
2. Representatives and direct taxes shall be apportioned among the
several states, which may be included within this Union, according to their
respective numbers, which shall be determined by adding to the whole number
of free persons, including those bound to service for a term of years, and
excluding Indians not taxed, three-fifths of all other persons. Const. U. S.
art. 1, s. 2. 3. It is also put in contradistinction to being bound as an
apprentice; as, an apprentice becomes free on attaining the age of twenty-
one years.
4. The Declaration of Independence asserts that all men are born free,
and in at sense, the term includes all mankind.
FREE COURSE, Mar. law. Having the wind from a favorable quarter.
2. To prevent collision of vessels, it is the duty of the vessel having
a free course to give way to a vessel beating up. to windward and tacking. 3
Hagg. Adm. R. 215, 326. And at sea, it is the duty of such vessel, in
meeting another, to go to leeward. 3 Car. & P. 528. See 9 Car. & P. W. Rob.
225; 2 Dodson, 87.
FREE ships. By this is understood neutral vessels. Free ships are sometimes
considered as making free goods.
FREE WARREN, Eng. law. A franchise erected for the preservation and custody
of beasts and fowls of warren. 2 Bl. Com. 39; Co. Litt. 233.
FREEDMEN. The name formerly given by the Romans to those persons who had
been released from a State of servitude. Vide Liberti libertini.
FREEDOM, Liberty; the right to do what is not forbidden by law. Freedom does
not preclude the idea of subjection to law; indeed, it presupposes the
existence of some legislative provision, the observance of which insures
freedom to us, by securing the like observance from others. 2 Har. Cond. L.
R. 208.
FREEHOLD, estates. An estate of freehold is an estate in lands or other real
property, held by a free tenure, for the life of the tenant or that of some
other person; or for some uncertain period. It is called liberum tenementum,
frank tenement or freehold; it was formerly described to be such an estate
as could only be created by livery of seisin, a ceremony similar to the
investiture of the feudal law. But since the introduction of certain modern
conveyances, by which an estate of freehold may be created without livery of
seisin, this description is not sufficient.
2. There are two qualities essentially requisite to the existence of a
freehold estate. 1. Iramobility; that is, the subject-matter must either be
land, or some interest issuing out of or annexed to land. 2. A sufficient
legal indeterminate duration; for if the utmost period of time to which an
estate can last, is fixed and determined, it is not an estate of freehold.
For example, if lands are conveyed to a man and his heirs, or for his life,
or for the life of another, or until he shall be married, or go to Europe,
he has an estate of freehold; but if such lands are limited to a man for one
hundred or five hundred years, if he shall so long live, he has not an
estate of freehold. Cruise on Real Property t. 1, s. 13, 14 and 15 Litt. 59;
1 Inst. 42, a; 5 Mass. R. 419; 4 Kent, Com. 23; 2 Bouv. Inst. 1690, et seq.
Freehold estates are of inheritance or not of inheritance. Cruise, t. 1, s.
42.
FREEHOLDER. A person who is the owner of a freehold estate.
FREEMAN. One who is in the enjoyment of the right to do whatever he pleases,
not forbidden by law. One in the possession of the civil rights enjoyed by,
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the people generally. 1 Bouv. Inst. n. 164. See 6 Watts, 556:
FREIGHT, mar. law, contracts. The sum agreed on for the hire of a ship,
entirely or in part, for the carriage of goods from one port to another; l3
East, 300, note; but in, its more extensive sense it is applied to all
rewards or compensation paid for the use of ships. 1 Pet. Adm. R. 206; 2
Boulay-Paty, t. 8, s. 1; 2 B. & P. 321; 4 Dall. R. 459; 3 Johns. R. 335; 2
Johns. R. 346; 3 Pardess, n. 705.
2. It will be proper to consider 1. How the amount of freight is to be
fixed. 2. What acts must be done in order to be entitled to freight. 3. Of
the lien of the master or owner.
3. - l. The amount of freight is usually fixed by the agreement of the
parties, and if there be no agreement, the amount is to be ascertained by
the usage of the trade, and the circumstances and reason of the case. 3.
Kent, Com. 173. Pothier is of opinion that when the parties agree as to the
conveyance of the goods, without fixing a price, the master is entitled to
freight at the price usually paid for merchandise of a like quality at the
time and place of shipment, and if the prices vary he is to pay the mean
price. Charte-part, n. 8. But there is a case which authorizes the master to
require the highest price, namely, when goods are put on board without his
knowledge. Id. n. 9. When the merchant hires the whole ship for the entire
voyage, he must pay the freight though he does not fully lade the ship; he
is of course only bound to pay in proportion to the goods he puts on board,
when he does not agree to provide a full cargo. If the merchant agrees to
furnish a return cargo, and he furnishes none, and lets the ship return in
ballast, he must make compensation to the amount of the freight; this is
called dead freight, (q.v.) in contradistinction to freight due for the
actual carriage of goods. Roccus, note 72-75; 1 Pet. Adm. R. 207; 10 East,
530; 2 Vern. R. 210.
4. - 2. The general rule is, that the delivery of the goods at the
place of destination, in fulfillment of the agreement of the charter party,
is required, to entitle the master or owner of the vessel to freight. But to
this rule there are several exceptions.
5.- 1. When a cargo consists of live stock, and some of the animals die
in the course of the voyage, without any fault or negligence of the master
or crew, and there is no express agreement respecting the payment of
freight, it is in general to be paid for all that were put on board; but
when the contract is to pay for the, transportation of them, then no freight
is due for those which die on the voyage. Molloy, b. 2, c. 4, s. 8 Dig. 14,
2, 10; Abb. Ship. 272.
6.-2. An interruption of the regular course of the voyage, happening
without the fault of the owner, does not deprive him of his freight if the
ship afterwards proceed with the cargo to the place of destination, as in
the case of capture and recapture. 3 Rob. Adm. R. 101.
7. - 3. When the ship is forced into a port short of her destination,
and cannot finish the voyage, if the owner of the goods will not allow the
master a reasonable time to repair, or to proceed in another ship, the
master will be entitled to the whole freight; and, if after giving his
consent the master refuse to go on, he is not entitled to freight.
8. - 4. When the merchant accepts of the goods at an intermediate port,
it is the general rule of marine law, that freight is to be paid according
to the proportion of the voyage performed, and the law will imply such
contract. The acceptance must be voluntary, and not, one forced upon the
owner by any illegal or violent proceedings, as, from it, the law implies a
contract that freight pro rata parte itineris shall be accepted and paid. 2
Burr. 883; 7 T. R. 381; Abb. Shipp. part 3, c. 7, s. 13; 3 Binn. 445; 5
Binn. 525; 2 Serg. & Rawle, 229; 1 W. C. C. R. 530; 2 Johns. R. 323; 7
Cranch, R. 358; 6 Cowen, R. 504; Marsh. Ins. 281, 691; 3 Kent, Com. 182;
Com. Dig. Merchant, E 3 a note, pl. 43, and the cases there cited.
9. - 5. When the ship has performed the whole voyage, and has brought
only a part-of her cargo to the place of destination; in this case there is
a difference between a general ship, and a ship chartered for a specific sum
for the whole voyage. In the former case, the freight is to be paid for the
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goods which may be, delivered at their place of destination; in the latter
it has been questioned whether the freight could be apportioned, and it
seems, that in such case a partial performance is not sufficient, and that a
special payment cannot be claimed except in special cases. 1 Johns. R. 24; 1
Bulstr. 167; 7 T. R. 381; 2 Campb. N. P. R. 466. These are some of the
exceptions to the general rule, called for by principles of equity, that a
partial performance is not sufficient, and that a partial payment or
rateable freight cannot be claimed.
10. - 6. In general, the master has a lien on the goods, and need not
part with them until the freight is paid; and when the regulations of the
revenue require them to be landed in a public warehouse, the master may
enter them in his own name and preserve the lien. His right to retain the
goods may, however, be waived either by an express agreement at the time of
making the original contract, or by his subsequent agreement or consent.
Vide 18 Johns. R. 157; 4 Cowen, R. 470; 1 Paine's R. 358; 5 Binn. R. 392.
Vide, generally, 13 Vin. Ab. 501 Com. Dig. Merchant, E 3, a; Bac. Ab.
Merchant, D; Marsh. Ins. 91; 10 East, 394 13 East, 300, n.; 3 Kent, Com.
173; 2 Bro. Civ. & Adm. L. 190; Merl. Rep. h.t. Poth. Charte-Partie, h.t.;
Boulay-Paty, h.t.; Pardess. Index, Affretement.
FREIGHTER, contracts. He to whom a ship or vessel has been hired. 3 Kent,
Com. 173; 3 Pardess. n. 704.
2. The freighter is entitled to the enjoyment of the vessel according
to contract, and the vessel hired is the only one that he is bound to take
there can, therefore, be no substitution without his consent. When the
vessel has been chartered only in part, the freighter is only entitled to
the space he has contracted for; and in case of his occupying more room or
putting on board a greater weight, he must pay freight on the principles
mentioned under the article of freight.
3. The freighter is required to use the vessel agreeably to the
provisions of the charter party, or, in the absence of any such provisions,
according to the usages of trade he cannot load the vessel with merchandise
which would render it liable to condemnation for violating the laws of a
foreign state. 3 John. R. 105. The freighter is also required to return the
vessel as soon as the time for which he chartered her has expired, and to
pay the freight.
FRESH PURSUIT. The act of pursuing cattle which have escaped, or are being
driven away from land, when they were liable to be distrained, into other
places. 3 Bouv. Inst. n. 2470.
FRESH SUIT, Eng. law. An earnest pursuit of the offender when a robbery has
been committed, Without ceasing, until he has been arrested or discovered.
Towl. Law Dict. h.t.
FRIBUSCULUM, civil law. A slight dissension between husband and wife, which
produced a momentary separation, without any intention to dissolve the
marriage, in which it differed from a divorce. Poth. Pand. lib. 50, s. 106.
Vicat, Vocab. This amounted to a separation, (q.v.) in our law.
FRIENDLESS MAN. This name was sometimes anciently given to an outlaw.
FRIGIDITY, med juris. The same as impotence. (q.v.)
FRUCTUS INDUSTRIALES. The fruits or produce of the earth which are obtained
by the industry of man, as growing corn.
FRUIT, property. The produce of tree or plant containing the seed or used
for food. Fruit is considered real estate, before it is separated from the
plant or tree on which it grows; after its separation it acquires the
character of personally, and may be the subject of larceny; it then has all
the qualities of personal property,
2. The term fruit, among the civilians, signifies not only the
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production of trees and other plants, but all sorts of revenue of whatever
kind they may be. Fruits may be distinguished into two kinds; the first
called natural fruits, are those which the earth produces without culture,
as bay, the production of trees, minerals, and the like or with culture, as
grain and the like. Secondly, the other kind of fruits, known by the name of
civil fruits, are the revenue which is not produced by the earth, but by the
industry of man, or from animals, from some estate, or by virtue of some
rule of law. Thus, the rent of a house, a right of fishing, the freight of a
ship, the toll of a mill, are called, by a metaphorical expression, fruits.
Domat, Lois Civ. liv. 3, tit. 5, s. 3, n. 3. See Poth. De la Communaute, n.
45.
FUERO JURGO. A Spanish code of laws, said to, be the most ancient in Europe.
Barr. on the Stat. 8, note.
FUGAM FECIT, Eng. law. He fled. This phrase, in an inquisition, signifies
that a person fled for treason or felony. The effect of this is to make the
party forfeit his goods absolutely, and the profits of his lands until he
has been pardoned or acquitted.
FUGITIVE. A runaway, one who is at liberty, and endeavors, by, going away,
to escape.
FUGITIVE SLAVE. One who has escaped from the service of his master.
2. The Constitution of the United States, art. 4, s. 2, 3, directs that
"no person held to service or labor in one state, under the laws thereof,
escaping into another, shall, in consequence of any laws or regulation
therein, be discharged from such service or labor, but shall be delivered
up, on claim of the party to whom such service or labor may be clue." In
practice summary ministerial proceedings are adopted, and not the ordinary
course of judicial investigations, to ascertain whether the claim of
ownership be established beyond all legal controversy. Vide, generally, 3
Story, Com. on Const. Sec. 1804-1806; Serg. on Const. ch. 31, p. 387; 9
John. R. 62; 5 Serg. & Rawle, 62; 2 Pick. R. 11; 2 Serg. & Rawle, 306; 3 Id.
4; 1 Wash. C. C. R. 500; 14 Wend. R. 507, 539; 18 Wend. R. 678; 22 Amer.
Jur. 344.
FUGITIVE, FROM JUSTICE, crim. law. One who, having committed a crime within
a jurisdiction, goes into another in order to evade the law, and avoid its
punishment.
2. By the Constitution of the United States, art. 4, s. 2, it is
provided, that "a person charged in any state with treason, felony or other
crime, who shall flee from justice, and be found in another state, shall, on
demand of the executive authority of the same state from which he fled, be
delivered up, to be removed to the state having jurisdiction of the crime."
The act of thus delivering up a prisoner, is, by the law of nations, called
extradition. (q.v.)
3. Different opinions are entertained in relation to the duty of a
nation, by the law of nations, independently of any treaty stipulations, to
surrender fugitives from justice when' properly demanded. Vide 1 Kent, Com.
36; 4 John. C. R. 106; 1 Amer. Jurist, 297; 10 Serg. & Rawle, 125; 3 Story,
Com. Const. United States, Sec. 1801; 9 Wend. R. 218; 2 John. R. 479; 6
Binn. R. 617; 4 Johns. Ch. R. 113; 22 Am. Jur. 351: 24 Am. Jur. 226; 14 Pet.
R. 540; 2 Caines, R. 213.
4. Before the executive of the state can be called upon to deliver an
individual, it must appear, first, that a proper and formal requisition of
another governor has been made; secondly, that the requisition was founded
upon an affidavit that the crime was committed by the person charged, or
such other evidence of that fact as may be sufficient; thirdly, that the
person against whom it is directed, is a fugitive from justice. 6 Law
Report, 57.
FULL AGE. A. person is said to have full age at twenty-one years, whether
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the person be a man or woman. See Age.
FULL COURT. When all the judges are present and properly organized, it -is
said there is a full court; a court in banc.
FULL DEFENCE, pleading. A denial of all wrong or injury. It is expressed in
the following formula: And the said C D, (the defendant,) by E F, his
attorney, comes, and defends the wrong or injury, (or force and injury,)
when and where it shall behoove him, and the damages and whatsoever else he
ought to defend." Bac. Ab. Pleas, &c. D; Co. Litt. 127 b; Lawes on Pl. 89; 2
Chit. Pl. 409; 2 Saund. 209 c; Gould on Pl. c. 2, Sec. 6. See Defence; Et
Cetera; Half Defence.
FUNCTION, office. Properly, the occupation of an office; by the
performance of its duties, the officer is said to fill his
function. Dig. lib. 32, 1. 65, Sec. 1.
FUNCTIONARY. One who is in office or in some public employment.
FUNCTUS OFFICIO. This term is applied to something which once had life and
power, but which now has no virtue whatsoever; as, for example, a warrant of
attorney on which a judgment has been entered, is, functus officio, and a
second judgment, cannot be entered by virtue of its authority. When
arbitrators cannot agree and choose an umpire, they are said to be functi
officio. Watts. on Arb. 94. If a bill of exchange be sent to the drawee, and
he passes it to the credit of the holder, it is functus officio, and cannot
be further negotiated. 5 Pick., 85. When an agent has completed the business
with which he was entrusted,.his agency is functus officio. 2 Bouv. Inst. n.
1382.
FUNDAMENTAL. This word is applied to those laws which are the foundation of
society. Those laws by which the exercise of power is restrained and
regulated, are fundamental. The Constitution of the United States is the
fundamental law of the land. See Wolff, Inst. Nat. Sec. 984.
FUNDED DEBT. That part of the national debt for which certain funds are
appropriated towards the payment of the interest.
FUNDING SYSTEM, Eng. law. The name given to a plan which provides that on
the creation of a public loan, funds shall immediately be formed, and
secured by law, for the payment of the interest, until the state shall
redeem the whole, and also for the gradual redemption of the capital itself.
This gradual redemption of the capital is called the sinking of the debt,
and the fund so appropriated is called the sinking fund.
FUNDS. Cash on hands; as, A B is in funds to pay my bill on him; stocks, as,
A B has $1000 in the funds. By public funds is understood, the taxes,
customs, &c. appropriated by the government for the discharge of its
obligations.
FUNDUS, civil raw. Any portion of land whatever, without considering the use
or employ to which it is applied.
FUNERAL EXPENSES. Money expended in procuring the interment of a corpse.
2. The person who orders the funeral is responsible personally for the
expenses, and if the estate of the deceased should be insolvent, he must
lose the amount. But if there are assets sufficient to pay these expenses,
the executor or administrator is bound, upon an implied assumpsit, to pay
them. 1 Campb. N. P. R. 298; Holt, 309 Com. on Contr. 529; 1 Hawke's R. 394;
13 Vin. Ab. 563.
3. Frequent questions arise as to the amount which is to be allowed to
the executor or administrator for such expenses. It is exceedingly difficult
to gather from the numerous cases which have been, decided upon this
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subject, any certain rule. Courts of equity have taken into consideration
the circumstances of each case, and when the executors have acted with
common prudence and in obedience to the will, their expenses have been
allowed. In a case where the testator directed that his remains should be
buried at a church thirty miles distant from the place of his death, the sum
of sixty pounds sterling was allowed. 3 Atk. 119. In another case, under
peculiar circumstances, six hundred pounds were allowed. Preced. in Ch. 29.
In a case in Pennsylvania, where the intestate left a considerable estate,
and no children, the sum of two hundred and fifty-eight dollars and seventy-
five cents was allowed, the greater part of which had been expended in
erecting a tombstone over a vault in which the body was interred. 14 Serg. &
Rawle, 64.
4. It seems doubtful whether the husband can call upon the separate
personal estate of his wife, to pay her funeral expenses. 6 Madd. R. 90.
Vide 2 Bl. Com. 508; Godolph. p. 2 3 Atk. 249 Off. Ex. 174; Bac. Ab.
Executors, &c., L 4; Vin. Ab. h.t.
FUNGIBLE. A term used in the civil, French, and Scotch law, it signifies
anything whatever, which consists in quantity, and is regulated by number,
weight, or measure; such as corn, wine, or money.. Hein. Elem. Pand. Lib.
12, t. 1, Sec. 2;.1 Bell's Com. 225, n. 2; Ersk. Pr. Scot. Law, B. 3, t. 1,
Sec. 7; Poth. Pret de Consomption, No. 25; Dict. de Jurisprudence, mot
Fongible Story, Bailm, Sec. 284; 1 Bouv. Inst. n. 987, 1098.
FURCA. The gallows. 3 Inst. 58.
FURIOSUS. An insane man; a madman; a lunatic.
2. In general, such a man can make no contract, because he has no
capacity or will: Furiosus nullum negotium genere potest, quia non
intelligit quod agit. Inst. 3, 20, 8. Indeed, he is considered so incapable
of exercising a will, that the law treats him as if he were absent: Furiosi
nulla voluntas est. Furiosus absentia loco est. Dig. lib. 1, tit. ult. 1.
40, 1. 124, Sec. 1. See Insane; Non compos mentis.
FURLINGUS. A furlong, or a furrow one-eighth part of a mile long. Co. Litt.
5. b.
FURLONG. A measure of length, being forty poles, or one-eighth of a mile.
Vide Measures.
FURLOUGH. A permission given in the army and-navy to an officer or private
to absent himself for a limited time.
FURNITURE. Personal chattels in the use of a family. By the term household
furniture in a will, all personal chattels will pass which may contribute to
the use or convenience of the householder, or the ornament of the house; as,
plate, linen, china, both useful and ornamental, and pictures. Amb. 610; 1
John. Ch. R. 329, 388; 1 Sim. & Stu. 189; S. C. 3 Russ. Ch. Cas. 301; 2
Williams on Ex. 752; 1 Rop. on Leg. 203-4; 3 Ves. 312, 313.
FURTHER ASSURANCE. This phrase is frequently used in covenants, when a
covenantor has granted an estate, and it is supposed some further conveyance
may be required. He then enters into a covenant for further assurance, that
is, to make any other conveyance which may be lawfully required.
FURTHER HEARING, crim. law, practice. Hearing at another time.
2. Prisoners are frequently committed for further hearing, either when
there is not sufficient evidence for a final commitment, or because the
magistrate has not time, at the moment, to hear the whole of the evidence.
The magistrate is required by law, and by every principle of humanity, to
hear the prisoner as soon as possible after a commitment for further
hearing; and if he neglect to do so within a reasonable time, he becomes a
trespasser. 10 Barn. & Cresw. 28; S. C. 5 Man. & Ry. 53. Fifteen days were
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held an unreasonable time, unless under special circumstances. 4 Carr. & P.
134; 4 Day, 98; 6 S. & R. 427.
3. In Massachusetts, magistrates may by statute, adjourn the case for
ten days. Rev. Laws, 1 3 5, s. 9.
4. It is the practice in England to commit for three days, and then
from three days to three days. 1 Chitty's Criminal Law, 74.
FUTURE DEBT. In Scotland this term is applied to a debt which though created
is not due, but is to become so at a future day. 1 Bell's Com. 315, 5th ed.
FUTURE STATE, evidence. A state of existence after this life.
2. A witness who does not believe in any future state of existence was
formerly inadmissible as a witness. The true test of a witnesses competency,
on the ground of his religious principles, is, whether he believes in the
existence of a God, who will punish him if he swears falsely; and within
this rule are comprehended those who believe future punishments will not be
eternal. 2 Watts' & Serg. 263. See the authorities cited under the article
Infidel. But it seems now to be settled, that when the witness believes in a
God who will reward or punish him, even in this world, he is competent.
G.
GABEL. A tax, imposition, or duty. This word is said to have the same
signification that gabelle formerly had in France. Cunn. Dict. h. t. But
this seems to be an error for gabelle signified in that country, previously
to its revolution, a duty upon salt. Merl. Rep. h. t. Lord Coke says, that
gabel or gavel, gablum, gabellum, gabelletum, galbelletum, and gavillettum
signify a rent, duty, or service, yielded or done to the king or any other
lord. Co. Litt. 142, a.
GAGE, contracts. Personal property placed by a debtor in possession of his
creditor, as a security for his debt; a pawn. (q. v.) Hence mortgage is a
dead pledge.
GAGER DEL LEY. Wager of law. (q. v.)
GAIN. The word is used as synonymous with profits. (q. v.) See Fruit.
GAINAGE, old Eng. law. It signifies the draft oxen, horses, wain, plough,
and furniture for carrying on the work of tillage by the baser sort of @soke
men and villeins, and sometimes the land itself, or the profits raised by
cultivating it. Bract. lib. 1, c. 9.
GALLON, measures. A gallon is a liquid measure, containing two hundred and
thirty-one cubic inches, or four quarts.
GALLOWS. An erection on which to bang criminals condemned to death.
GAME. Birds and beasts of a wild-nature, obtained by fowling and hunting.
Bac. Ab. h. t.; Animals; Ferae natural.
GAMING. A contract between two or more persons by which they agree to play
by certain rules at cards, dice, or other contrivance, and that one shall be
the loser, and the other the winner. When considered in itself, and without
regard to the end proposed by the player's, there is nothing in it contrary
to natural equity, and the contract will be considered as a reciprocal gift,
which the parties make of the thing played for, under certain. conditions.
2. There are some games which depend altogether upon skill, others,
upon chance, and some others are of a mixed nature. Billiards is an example
of the first; lottery of the second; and backgammon of the last.
3. In general, at common law all games are lawful, unless some fraud
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has been practiced, or such games are contrary to public policy. Each of the
parties to the contract must, 1. Have a right to the money or thing played
for. 2. He must have given his full and free consent, and not been entrapped
by fraud. 3. There must be equality in the play. 4. The play must be
conducted fairly. But even when all these rules have been observed, the
courts will not countenance gaming by giving too easy a remedy for the
recovery of money won at play. Bac. Ab. h. t. A.
4. But when fraud has been practiced, as in all other cases, the
contract is void and in some cases, when the party has been guilty of
cheating, by playing with false dice, cards and the like, he may be indicted
at common law, and fined and imprisoned, according to the heinousness of the
offence. 1 Russ. on Cr, 406.
5. Statutes have been passed in perhaps all the states forbidding
gaining for money, at certain games, and prohibiting the recovery of money
lost at such games. Vide Bac. Ab. h. t.; Dane's Ab. Index, h. t.; Poth.
Traite du Jeu; Merlin, Repertoire, mot Jeu; Barbeyrac, Traite du Jeu, tome
1, p. 104, note 4; 1 P. A. Browne's Rep. 171: 1 Overt. R. 360; 3 Pick. 446;
7 Cowen, 496; 1 Bibb, 614; 1 Miss. 635; Mart. & Yerg. 262; 1 Bailey, 315; 6
Rand. 694; 8 Cowen, 139; 2 Blackf. 251; 3 Blackf. 294; and Stakeholder;
Wagers.
GAMING HOUSES, crim. law. Houses kept for the purpose of permitting persons
to gamble for money or other valuable thing. They are nuisances in the eye
of the law, being detrimental to the public, as they promote cheating and
other corrupt practices. 1 Russ. on Cr. 299; Roscoe's Cr. Ev. 663; Hawk. B.
1, ch. 75, s. 6; 3 Denio's R. 101; 8 Cowen, 139; This offence is punished in
Pennsylvania, an perhaps in most of the states, by statutory provisions.
GANANCIAL, Spanish law. A term which in Spanish signifies nearly the same as
acquets. Bienes gananciales are thus defined: " Aquellos que el marido y la
mujer o cualquiera de los dos adquieren o aumentan durante el matrimonio por
compra o otro contrato, 6 mediante su trabajo e industria, como tambien los
frutos de los bienos proprios que cada uno elevo al matrimonio, et de los
que subsistiendo este adquieran para si por cualquier titulo." 1 Febr. Nov.
lib. 1, tit. 2, c. 8, s. 1. This is a species of community; the property of
which it is formed belongs in common to the two consorts, and, on the
dissolution of the marriage, is divisible between them in equal shares. It
is confined to their future acquisition durante el matrimonio, and the
frutos, or rents and profits of the other property. 1 Burge on Confl. of
Laws, 418, 419; Aso & Man. Inst. B. 1, t. 7, c. 5, Sec. 1.
GAOL. A prison or building designated by law or used by the sheriff, for the
confinement or detention of those, whose persons are judicially ordered to
be kept in custody., This word, sometimes written jail, is said to be
derived from the Spanish jaula, a cage, (derived from caula,) in French
geole, gaol. 1 Mann. & Gran. 222, note a. Vide 6 John. R. 22; 14 Vin. Ab. 9;
Bac. Ab. h. t.; Dane's Ab. Index, h. t.; 4 Com. Dig. 619; and the articles
Gaoler; Prison; Prisoner.
GAOL-DELIVERY, Eng. law. To insure the trial, within a certain time, of all
prisoners, a patent in the nature of a letter is issued from the king to
certain persons, appointing them his justices, and authorizing them to
deliver his goals. Cromp. Jurisd. 125; 4 Inst. 168; 4 Bl. Com. 269; 2 Hale,
P. C. 22, 32; 2 Hawk. P. C. 14, 28. In the United States, the judges of the
criminal courts are required to cause the accused to be tried within the
times prescribed by the local statutes, and the constitutions require a
speedy trial.
GAOLER. The keeper of a gaol or prison, one who has the legal custody of the
place where prisoners are kept.
2. It is his duty to keep the prisoners in safe custody, and for this,
purpose he may use all necessary force. 1 Hale, P. C. 601. But any
oppression of a prisoner under a pretended necessity will be punished; for
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the prisoner, whether he be a debtor or a criminal, is entitled to the
protection of the laws from oppression.
GARNISH, Eng. law. Money paid by a prisoner to his fellow prisoners on his
entrance into prison. .
GOD AND MY COUNTRY. When a prisoner is arraigned, he is asked, How will you
be tried? he answers, "By God and my country." This practice arose when the
prisoner had the right to choose the mode of trial, namely, by ordeal or by
jury, and then he elected by God or by his country, that is, by jury. It is
probable that originally it was "By God or my country" for the question
asked supposes an option in the prisoner, and the answer is meant to assert
his innocence by declining neither sort of trial. 1 Chit. Cr. Law, 416;
Barr. on the Stat. 73, note.
GOD BOTE, eccl. law. An ecclesiastical or church fine imposed upon an.
offender for crimes and offences committed against God.
GOING WITNESS. One who is going out of the jurisdiction of the court,
although only into a state or country under the general sovereignty; as, for
example, if he is going from one to another of the United States; or, in
Great Britain, from England to Scotland. 2 Dick. 454.
GOLD. A metal used in making money, or coin. It is pure when the metal is
unmixed with any other. Standard gold, is gold mixed with some other metal,
called alloy. Vide Money.
GOOD AND LAWFUL MEN, probi et legales homines. The law requires that those
who serve on juries shall be good. and lawful men; by which is understood
those qualified to serve on juries; that is, that they be of full age,
citizens, not infamous nor non compos mentis, and they must be resident in
the county where the venue is laid. Bac. Ab. Juries, A; Cro. Eliz. 654; 3
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Inst. 30; 2 Rolle's R. 82; Cam. & Norw. 38.
GOOD CONSIDERATION, contracts. A good consideration is one which flows from
kindred or natural love and affection alone, and is not of a
pecuniary.nature. Vin. Ab. Consideration, B; 1 Bouv. Inst. n. 613. Vide
Consideration.
GOOD WILL. By this term is meant the benefit which arises from the
establishment of particular trades or occupations. Mr. Justice Story
describes a good will to be the advantage of benefit which is acquired by an
establishment, beyond the mere value of the capital, stocks, funds, or
property employed therein, in consequence of the general public patronage
and encouragement, which it receives from constant or habitual customers, on
account of its local position, or common celebrity, or reputation for skill
or affluence, or punctuality, or from other accidental circumstances or
necessities, or even from ancient partialities, or prejudices. Story, Partn.
Sec. 99; see 17 Ves. 336; 1 Hoffm. R. 68; 16 Am. Jur. 87.
2. As between partners, it has been held that the good will of a
partnership trade survives; 6 Ves. 539; but this appears to be doubtful; 16
Ves. 227; and a distinction, in this respect, has been suggested between
commercial and professional partnerships; the advantages of established
connexions in the latter being held to survive, unless the benefit is
excluded by positive stipulation. 3 Madd. 79. As to the sale, of the good-
will of a trade or business, see. 3 Meriv. 452; 1 Jac. & Walk. 689; 2
Swanst. 332; 1 Ves. & Beames, 505; 17 Ves. 346; 2 Madd. 220; Gow on Partn.
428; Collyer on Partn. 172, note; 2 B. & Adolph. 341; 4 Id. 592, 596; 1
Rose, 123; 5 Russ. 29; 2 Watts, 111; 1 Chit. Pr. 868; 1 Sim. & Stu. 74; 2
Russ. R. 170; 1 Jac. & W. 380; 1 Russ. R. 376; 1 P. & W. 184; 2 Mad. R. 198;
l T. R. 118. Vide 5 Bos. & Pull. 67; 1 Bro. C. C. 160, as to the effect of a
bankrupt's assignment on a good-will; and 16 Amer. Jur. 87.
GOODS, property. For some purposes this term includes money, valuable
securities, and other mere personal effects. The term. goods and chattels,
includes not only personal property in possession, but also choses in
action. 12 Co. 1; 1 Atk. 182. The term chattels is more comprehensive than
that of goods, and will include all animate as well as inanimate property,
and also a chattel real, as a lease for years of house or land. Co. Litt.
118; 1 Russ. Rep. 376. The word goods simply and without qualification, will
pass the whole personal estate when used in a will, including even stocks in
the funds. But in general it will be limited by the context of the will.
Vide 2 Supp. to Ves. jr. 289; 1 Chit. Pr. 89, 90; 1. Ves. jr. 63; Hamm. on
Parties, 182; 3 Ves. 212; 1 Yeates, 101; 2 Dall. 142; Ayl. Pand. 296; Wesk.
Ins. 260; 1 Rop. on Leg. 189; 1 Bro. C. C. 128; Sugd. Vend. 493, 497; and
the articles Biens; Chattels; Furniture.
2. Goods are said to be of different kinds, as adventitious, such as
are given or arise otherwise than by succession; dotal goods, or those which
accrue from a dowry, or marriage portion; vacant goods, those which are
abandoned or left at large.
GOODS SOLD AND DELIVERED. This phrase is frequently used in actions of
assumpsit, and the sale and delivery of goods are the foundation of the
action. When a plaintiff declares for goods sold and delivered, he is
required to prove, first, the contract of sale; secondly, the delivery of
the goods, or such disposition of them as will be equivalent to it; and,
thirdly, their value. 11 . Shepl. 505. These will be separately considered.
2. - 1. The contract of sale may be express, as where the purchaser
actually bought the goods on credit, and promised to pay for them at a
future time; or implied, where from his acts the defendant manifested an
intention to buy them; as, for example, when one takes goods by virtue of a
sale made by a person who has no authority to sell, and the owner afterwards
affirms the contract, he may maintain an action for goods sold and
delivered. 12 Pick. 120. Again, if the goods come, to the hands of the
defendant tortiously, and are converted by him to his own use, the plaintiff
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may waive the tort, and recover as for goods sold and delivered. 3 N. H.
Rep. 384; 1 Miss. R. 430, 643; 3 Watts, 277; 5 Pick. 285; 4 Binn. 374; 2
Gill & John. 326; 3 Dana, 552; 5 Greenl. 323.
3. - 2. The delivery must be made in accordance with the terms of the
sale, for if there has not been such delivery no action can be maintained. 2
Ired. R. 12; 15 Pick. 171; 3 John. 534.
4.- 3. The plaintiff must prove the value of the goods; where there is
an express agreement as to their value, be established by evidence, but
where there is no such express agreement, the value of the goods at the time
of sale must be proved. Coxe, 261. And the purchaser of goods cannot defend,
against an action for the purchase money, by showing that the property was
of no value. 8 Port. 133.
5. To support an action for goods sold and delivered, it is
indispensable that the goods should have been sold for money, and that the
credit on which they were sold should have expired. But where the goods have
been sold on a credit to be paid for by giving a note or bill, and the
purchaser does not give it according to contract, although the seller cannot
recover in assumpsit for goods sold and delivered till the credit has
expired, yet he may proceed immediately for a breach of the agreement. 21
Wend. 175.
6. When goods have been sold to be paid for partly in money, and partly
in goods to be delivered to the vendor, the plaintiff must declare
specially, and he cannot recover on the common count for goods sold and
delivered. 1 Chit. Pl. 339; 1 Leigh's N. P. 88; 1 H. Bl. 287; Holt, 179.
GOUT, med. jur. contracts. An inflammation of the fibrous and ligamentous
parts of the joints.
2. In cases of insurance on lives, when there is warranty of health, it
seems that a man subject to the gout, is a life capable of being, insured,
if he has no sickness at the time to make it an unequal contract. 2 Park,
Ins. 583.
GOVERNMENT, natural and political law. The manner in which sovereignty is
exercised in each state.
2. There are three simple forms of government, the democratic, the
aristocratic, and monarchical. But these three simple forms may be varied to
infinity by the mixture and divisions of their different powers. Sometimes
by the word government is understood the body of men, or the individual in
the state, to whom is entrusted the executive power. It is taken in this
sense when the government is spoken of in opposition to other bodies in the
state.
3. Governments are also divided into monarchical and republican; among
the monarchical states may be classed empires, kingdoms, and others; in
these the sovereignty resides in, a single individual. There are some
monarchical states under the name of duchies, counties, and the like.
Republican states are those where the sovereignty is in several persons.
These are subdivided into aristocracies, where the power is exercised by a
few persons of the first rank in the state; and democracies, which are those
governments where the common people may exercise the highest powers. 1 Bouv.
Inst. n. 20. See Aristocracy; Democracy; Despotism; Monarchy; Theocracy.
4. It should be remembered, however, that governments, for the most
part, have not been framed on models. Their parts and their powers grew out
of occasional acts, prompted by some urgent expediency, or some private
interest, which, in the course of time, coalesced and hardened into usages.
These usages became the object of respect and the guide of conduct long
before they were embodied in written laws. This subject is philosophically
treated by Sir James McIntosh, in his History of England. See vol. 1, p. 71,
et seq.
GOVERNOR. The title of the executive magistrate in each state and territory
of the United States. Under the names of the particular states, the reader
will find some of the duties of the governor of such state.
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GRACE. That which a person is not entitled to by law, but which is extended
to him as a favor; a pardon, for example, is an act of grace. There are-
certain days allowed to a payer of a promissory note or bill of exchange,
beyond the time which appears on its face, which are called days of grace.
(q. v.)
GRADUS. This is a Latin word, literally signifying a step; figuratively it
is used to designate a person in the ascending or descending line, in
genealogy; a degree.
GRAFFER. This word is a corruption of the French word greffier, a clerk, or
prothonotary. It signifies a notary or scrivener; vide stat. 5 Hen. VII 1.
c. 1.
GRAFT. A figurative term in chancery practice, to designate the right of a
mortgagee in premises, to which the mortgagor at the time of making the
mortgage had an imperfect title, but who afterwards obtained a good title.
In this case the new mortgage is considered a graft into the old stock, and,
as arising in consideration of the former title. 1 Ball & Beat. 46; Id. 40;
Id. 57; 1 Pow. on Mortg. 190. See 9 Mass. 34. The same principle has
obtained by legislative enactment in Louisiana. If a person contracting an
obligation towards another, says the Civil Code, art. 2371, grants a
mortgage on property of which he is not then the owner, this mortgage shall
be valid, if the debtor should ever acquire the ownership of, the property,
by whatever right.
GRAIN, weight. The twenty-fourth part of a pennyweight.
2. For scientific purposes the grain only is used, and sets of weights
are constructed in decimal progression, from 10,000 grains downward to one
hundredth of a grain.
GRAIN, corn. It signifies wheat, rye, barley, or other corn sown in the
ground In Pennsylvania, a tenant for a certain term is entitled to the way-
going crop. 5 inn. 289, 258; 2 Binn. 487; 2 Serg. & Rawle, 14.
GRAINAGE, Eng. law. The name of an ancient duty collected in London,
consisting of one-twentieth part of the salt imported into that city.
GRAND JURY, practice. A body of men, consisting of not less than twelve nor
more than twenty-four, respectively returned by the sheriff of every county
to every session of the peace, oyer and terminer and general gaol delivery,
to whom indictments are preferred. 4 Bl. Com. 302; 1 Chit. C. L. 310, 1.
2. There is just reason to believe that this institution existed among
the Saxons, Crabb's C. L. 35. By the constitutions of Clarendon, enacted 10
H. II. A. D. 1164, it is provided, that "if such men were suspected, whom
none wished or dared to accuse, the sheriff, being thereto required by the
bishop, should swear twelve men of the neighborhood, or village, to declare
the truth" respecting such supposed crime; the jurors being summoned as
witnesses or accusers, rather than judges. If this institution did not exist
before, it seems to be pretty certain that this statute established grand
juries, or recognized them, if they existed before.
3. A view of the important duties of grand juries will be taken, by
considering, 1. The organization of the grand jury. 2. The extent of its
jurisdiction. 3. The mode of doing business. 4. The evidence to be received.
5. Their duty to make presentments. 6. The secrecy to be observed by the
grand jury.
4. - 1. Of the organization of the grand jury. The law requires that
twenty-four citizens shall be summoned to attend on the grand jury; but in
practice, not more than twenty-three are sworn, because of the inconvenience
which else might arise, of having twelve, who are sufficient to find a true
bill, opposed to twelve others who might be against it. 6 Adolph. & Ell.
236; S. C. 33 e. C. L. R. 66; 2 Caines, R. 98. Upon being called, all who
present themselves are sworn, as it scarcely ever happens that all who are
summoned are in attendance. The grand jury cannot consist of less than
twelve, and from fifteen to twenty are usually sworn. 2 Hale, P. C. 161; 7
Sm. & Marsh. 58. Being called into the jury box, they are usually permitted
to select a foreman whom the court appoints, but the court may exercise the
right to nominate one for them. The foreman then takes the following oath or
affirmation, namely: "You A B, as foreman of this inquest for the body of
the ______ of _________, do swear, (or affirm) that you will diligently
inquire, and true presentments make, of all such articles, matters and
things as shall be given you in charge, or otherwise come to your knowledge
touching the present service; the commonwealth's counsel, your fellows and
your own, you shall keep secret; you shall present no one for envy, hatred
or malice; nor shall you leave any one unpresented for fear, favor,
affection, hope of reward or gain; but shall present all things truly, as
they come to your knowledge, according to the best of your understanding,
(so help you God.") It will be perceived that this oath contains the
substance of the duties of the grand jury. The foreman having been sworn or
affirmed, the other grand jurors are sworn or affirmed according to this
formula: "You 'and each of you do swear (or affirm) that the same oath (or
affirmation) which your foreman has taken on his part, you and every one of
you shall well and truly observe on your part." Being so sworn or affirmed,
and having received the charge of the court, the grand jury are organized,
and may proceed to the room provided for them to transact the business which
may be laid before them. 2 Burr. 1088; Bac. Ab. Juries, A. The grand jury
constitute a regular body until discharged by the court, or by operation of
law, as where they cannot continue by virtue of an act of assembly beyond a
certain day. But although they have been formally discharged by the court,
if they have not separated, they may be called back, and fresh bills
submitted to them; 9 C. & P. 43; S. C. 38 E. C. L. R. 2 8.
5. - 2. The extent of the grand jury's jurisdiction. Their jurisdiction
is coextensive with that of the court for which they inquire; both as to the
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offences triable there, and the territory over which such court has
jurisdiction.
6. - 3. The mode of doing business. The foreman acts as president, and
the jury usually appoint one of their number to perform the duties of
secretary. No records are to be kept of the acts of the grand jury, except
for their own use, because, as will be seen hereafter, their proceedings are
to be secret. Being thus prepared to enter upon their duties, the grand jury
are supplied with bills of indictment by the attorney-general or other
officer, representing the state or commonwealth against offenders. On these
bills are endorsed the names of the witnesses by whose testimony they are
supported. The witnesses are in attendance in another room, and must be
called when wanted. Before they are examined as to their knowledge of the
matters mentioned in the indictment, care must be taken that they have been
sworn or affirmed. For the sake of convenience, they are generally sworn or
affirmed in open court before they are sent to be examined, and when so
qualified, a mark to that effect is made opposite their names.
7. In order to save time, the best practice is to find a true bill, as
soon as the jury are satisfied that the defendant ought to be put upon his
trial. It is a waste of time to examine any other witness after they have
arrived at that conclusion. Twelve at least must agree, in order to find a
true bill; but it is not required that they should be unanimous. Unless that
number consent, the bill must be ignored. When a defendant is to be put upon
his trial, the foreman must write on the back of the indictment "a true
bill," sign his name as foreman, and date the time of finding. On the.
contrary, where there is not sufficient evidence to authorize the finding of
the bill, the jury return that they are ignorant whether the person accused
committed the offence charged in the bill, which is expressed by the foreman
endorsing on the bill "ignoramus," signing his name as before, and dating
the time.
8. - 4. Of the evidence to be received. In order to, ascertain the
facts which the jury have not themselves witnessed, they must depend upon
the statement of those who know them, and who will testify to them. When the
witness, from his position and ability, has been in a condition to know the
facts about which he testifies, he is deserving of implicit confidence; if,
with such knowledge, he has no motive for telling a false or exaggerated
story, has intelligence enough to tell what he knows, and give a probable
account of the transaction. If, on the other hand, from his position he
could not know the facts, or if knowing them, he distorts them, he is
undeserving of credit. The jury are the able judges of the credit and
confidence to which a witness is entitled.
9. Should any member of the jury be acquainted with any fact on which
the grand jury are to act, he must, before he testifies, be sworn or
affirmed, as any other witness, for the law requires this sanction in all
cases.
10. As the jury are not competent to try the accused, but merely to
investigate the case so far as to ascertain whether he ought to be put on
his trial, they cannot hear evidence in his favor; theirs is a mere
preliminary inquiry; it is when he comes to be tried in court that he may
defend himself by examining witnesses in his favor, and showing the facts of
the case.
11. - 5. Of presentments. The jury are required to make true
presentments of all such matters which may be given to them in charge, or
which have otherwise come to their knowledge. A presentment, properly
speaking, is the notice taken by the grand jury of any offence from their
own knowledge, as of a nuisance, a libel, or the like. In these cases, the
authors of the offence should be named, so that they may be indicted,
12. - 6. Of the secrecy to be observed by the grand jury. The oath which
they have taken obliges them to keep secret the commonwealth's counsel,
their fellows and their own. Although contrary to the general spirit of our
institutions, which do not shun daylight, this secrecy is required by law
for wise purposes. It extends to the votes given in any case, to the
evidence delivered by witnesses, and the communications of the jurors to
each other; the disclosure of these facts, unless under the sanction of law,
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would render the imprudent juror who should make them public, liable to
punishment. Giving intelligence to a defendant that a bill has been found
against him, to enable him to escape, is so obviously wrong, that no one can
for a moment doubt its being criminal. The grand juror who should be guilty
of this offence might, upon conviction, be fined and imprisoned. The
duration of the secrecy appears not to be definitely settled, but it seems
this injunction is to remain as long as the particular circumstances of each
case require. In a case, for example, where a witness swears to a fact in
open court, on the trial, directly in opposition to what he swore before the
grand jury, there can be no doubt the injunction of secrecy, as far as
regards this evidence, would be at an end, and the grand juror might be
sworn to testify what this witness swore to in the grand jury's room, in
order that the witness might be prosecuted for perjury. 2 Russ. Cr.. 616; 4
Greenl. Rep. 439; but see contra, 2 Halst. R. 347; 1 Car. & K. 519. Vide,
generally, 1 Chit. Cr. Law, 162; 1 Russ. Cr. 291; 2 Russ. Cr. 616 2 Stark.
Ev. 232, n. 1; 1 Hawk. 65, 500 2 Hawk. ch. 25; .3 Story, Const. Sec. 1778 2
Swift's Dig. 370; 4 Bl. Com. 402; Archb. Cr. Pl. 63; 7 Sm. Laws Penna. 685.
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GREAT CHARTER. The name of the charter granted by the English King John,
securing to the English people their principal liberties; magna charta. (q.
v.)
GREAT LAW. The name of an act of the legislature of Pennsylvania, passed at
Chester, immediately after the arrival of William Penn, December 7th, 1682.
Serg. Land Laws of Penn. 24, 230.
GREE, obsolete. It signified satisfaction; as, to make gree to the parties,
is, to agree with, or satisfy them for, an offence done.
GREEN WAX, Eng. law. The name of the @estreats of fines, issues, and amerce
@ments in the exchequer, delivered to the sheriff under the seal of that
court, which is made with green wax.
GROS BOIS, or GROSSE BOIS. Such wood as, by the common law or custom, is
reputed timber. 2 hist. 642.
GROSS. Absolute; entire, not depending on another. Vide Common.
GROSS ADVENTURE. By this term the French lay writers signify a maritime
loan, or bottomry. (q, v.) It is so called because the lender exposes his
money to the perils of the sea; and contributes to the gross or general
average. Poth. h. t.; Pard. Dr. Com . h. t.
GROSS AVERAGE, mar. law. That kind of average which falls on the ship,
cargo, and freight, and. is distinguished from particular average. See
Average.
GROSS NEGLIGENCE. Lata culpa, or, as the Roman lawyers most accurately call
it) dolo proxima, is, in practice, considered as equivalent to dolus or
fraud itself, and consists, according to the best interpreters, in the
omission of that care which even inattentive and thoughtless men never fail
to take of their own property. Jones on Bailments, 20. It must not be
confounded, however, with fraud, for it may exist consistently with good
faith and honesty of intention, according to common law authorities.
GROSS WEIGHT. The total weight of goods or merchandise, with the chests,
bags, and the like, from which. are to be deducted tare and tret.
GROUND RENT, estates. In Pennsylvania, this term is used to signify a
perpetual rent issuing out of some real estate. This rent is redeemable
where there is a covenant in the deed that, before the expiration of a
period therein named, it may be redeemed by the payment of a certain sum of
money; or it is irredeemable, when there is no such agreement; and, in the
latter case, it cannot be redeemed without the consent of both parties. See
1 Whart. R. 837; 4 Watts, R. 98; Cro. Jac. 510; 6 Halst. 262; 7 Wend. 463; 7
Pet. 596; 2 Bouv. Inst. n. 1659, and note, and Emphyteosis.
GROUNDAGE, mar. law. The consideration paid for standing a ship in a port.
Jacobs, Dict. h. t., Vide Demurrage.
GUARANTEE, contracts. He lo whom a guaranty is made.
2. The guarantee is entitled to receive payment, in the first place,
from the debtor, and, secondly, from the guarantor. He must be careful not
to give time beyond that stipulated in the original agreement, to the
debtor, without the consent of the guarantor; the guarantee should, at the
instance of the guarantor, bring an action against the principal for the
recovery of the debt. 2 Johns. Oh. R. 554; 17 Johns. R. 384; 8 Serg. &
Rawle, 116; 10 Serg. & Rawle, 33; 2 Bro. C. C. 579, 582; 2 Ves. jr. 542. But
the mere omission of the guarantee to sue the principal debtor will not, in
general, discharge the guarantor. 8 Serg. & Rawle, 112; 3 Yeates, R. 157; 6
Binn. R. 292, 300.
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GUARANTOR, contracts. He who makes a guaranty.
2. The guarantor is bound to fulfill the engagement he has entered into,
provided the principal debtor does not. He is bound only to the extent that
the debtor is, and any payment made by the latter, or release of him by the
creditor, will operate as a release of the guarantor; 3 Penna. R. 19; or
even if the guarantee should give time to the debtor beyond that contained
in the agreement, or substitute a new agreement, or do any other act by
which the guarantor's situation would be worse, the obligation of the latter
would be discharged. Smith on Mer. Law, 285.
3. A guarantor differs from a surety in this, that the former cannot be
sued until a failure on the part of the principal, when sued; while the
latter may be sued at the same time with the principal. 10 Watts, 258.
GUARANTY, contracts. A promise made upon a good consideration, to answer for
the payment of some debt, or the performance of some duty, in case of the
failure of another person, who is, in the first instance, liable to such
payment or performance. 1 Miles' Rep. 277.
2. The English statute of frauds, 29 Car. II. c. 3, which, with
modification, has been adopted in most of the states; 3 Kent's Com. 86
requires, that "upon any special promise to answer for the debt, default, or
miscarriage of another person, the agreement, Or some memorandum, or note
thereof, must be in writing, and signed by the party to be charged
therewith, or some other thereunto by him lawfully authorized." This clause
of the statute is not in force in Pennsylvania. To render this statute
valid, under the statute, its form must be in writing; it must be made upon
a sufficient consideration; and it must be to fulfill the engagement of
another.
3. - 1. The agreement must be in writing, and signed by the party to be
bound, or some one authorized by him. It should substantially contain the
names of the party promising, and of the person on whose behalf the promise
is made; the promise itself, and the consideration for it.
4. - 2. The word agreement in the statute includes the consideration
for the promise, as well as the promise itself; if, therefore, the guaranty
be for a subsisting, debt, or engagement of another person, not only the
engagement, but the consideration for it, must appear in the writing. 5
East, R. 10. This has been the construction which has been given in England,
and which has been followed in New York and South Carolina, though it has
been rejected in several other states. 3 John. R. 210; 8 John. R. 29; 2 Nott
& McCord, 372, note; 4 Greenl. R. 180, 387; 6 Conn..R. 81; 17 Mass. R. 122.
The decisions have all turned upon the force of the word agreement; and
where by statute the word promise has been introduced, by requiring the
promise or agreement to be in writing, as in Virginia, the construction has
not been so strict. 5 Cranch's R. 151, 2.
5. - 3. The guaranty must be to answer for the debt or default of
another. The term debt implies, that the liability of the principal debtor
had been previously incurred; but a default may arise upon an executory
contract, and a promise to pay for goods to be furnished to another, is a
collateral promise to pay on the other's default, provided the credit was
given, in the first instance, solely to the other. It is a general rule,
that when a promise is made by a third person, previous to the sale of
goods, or other credit given, or other liability incurred, it conies within
the statute, when it is conditional upon the default of another, who is
solely liable in the first instance, otherwise not; the only inquiry to
ascertain this, is, to whom was it agreed, that the vendor or creditor
should look in. the first instance ? Many nice distinctions have been made
on this subject. 1st. When a party actually purchases goods himself, which
are to be delivered to a third person, for, his sole use, and the latter was
not to be responsible, this is not a case of guaranty, because the person to
whom the goods were furnished, never was liable. 8 T. R. 80. 2d. Where a
person buys goods, or incurs any other liability, jointly with another, but
for the use of that other, and this fact is known to the creditor, the
guaranty must be in writing. 8 John. R. 89. 3d. A person may make himself
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liable, in the third place, by adding his credit to that of another, but
conditionally only, in case of the other's default. This species of promise
comes immediately within the meaning of the statute, and in the cases is
sometimes termed a collateral promise.
6. Guaranties are either special or for a particular transaction, or
they are continuing guaranties; that is, they are to be valid for other
transactions, though not particularly mentioned. 2 How. U. S. 426; 1 Metc.
24; 7 Pet. 113; 12 East, 227; 6 M. & W. 612; 6 Sc. N. S. 549; 2 Campb. 413;
3 Campb. 220,; 3 M. & P. 573; S, C. 6 Bing. 244 2 M. & Sc. 768; S. C. 9
Bing. 618 3 B. & Ald. 593; 1 C. & M. 48; S. C. 1 Tyr. 164.
Vide, generally, Fell on Mercantile Guaranties; Bouv. Inst. Index, h.
t.; 3 Kent's Com. 86; @Theob. P. & S. c. 2 & 3; Smith on Mer. Law, c. 10; 3
Saund. 414, n., 5; Wheat. Dig. 182 14 Wend. 231. The following authorities
refer to cases of special guaranties of notes. 6 Conn. 81; 20 John. 367; 1
Mason 368; 8 Pick. 423; 2 Dev. & Bat. 470; 14 Wend. 231. Of absolute
guaranties. 2 Har. & J. 186; 3 Fairf. 193 1 Mason, 323; 12 Pick. 123.
Conditional guaranties. 12 Conn. 438. To promises to guaranty. 8 Greenl.
234; 16 John. 67.
GUARDIANS, domestic relations. Guardians are divided into, guardians of the
person, in the civil law called tutors; and guardians of the estate, in the
sam law are known by the name of curators. For the distinction between them,
vide article Curatorship; 2 Kent, Com. 186 1 Bouv. Inst. n. 336, et. seq.
2. - 1. A guardian of the person is one who has been lawfully invested
with the care of the person of an infant, whose father is dead.
3. The guardian must be properly appointed he must be capable of
serving; he must be appointed guardian of an infant; and after his
appointment he must perform the duties imposed on him by his office.
4. - 1st. In England, and in some of the states where the English law
has been adopted in this respect, as in Pennsylvania; Rob. Dig. 312, by
Stat. 12 Car. If. c. 24; power is given to the father to appoint a
testamentary guardian for his children, whether born or unborn. According to
Chancellor Kent, this statute has been adopted in the state of New York, and
probably throughout this country. 2 Kent, Com. 184. The statute of
Connecticut, however, is an exception; there the father cannot appoint a
testamentary guardian. 1 Swift's Dig. 48.
5. All other kinds of guardians, to be hereafter noticed, have been
superseded in practice by guardians appointed by courts having jurisdiction
of such matters. Courts of chancery, orphans courts, and courts of a similar
character having jurisdiction of testamentary matters in the several states,
are, generally, speaking, invested with the power of appointing guardians.
6. - 2d. The person appointed must be capable of performing the duties;
an idiot, therefore, cannot be appointed guardian.
7. - 3d. The person over whom a guardian is appointed, must be an
infant; for after the party has attained his full age, he is entitled to all
his rights, if of sound mind, and, if not, the person appointed to take care
of him is called a committee. (q. v.) No guardian of the person can be
appointed over an infant whose father is alive, unless the latter be non
compos mentis, in which case one may be appointed, as if the latter were
dead.
8. - 4th. After his appointment, the guardian of the person is
considered as standing in the place of the father, and of course the
relative powers and duties of guardian and ward correspond, in a great
measure, to those of parent and child; in one prominent matter they are
different. The father is entitled to the services of his child, and is bound
to support him; the guardian is not entitled to the ward's services, and is
not bound to maintain him out of his own estate.
9. - 2. A guardian of the estate is one who has been lawfully invested
with the power of taking care and managing the estate of an infant. 1 John.
R. 561; 7 John. Ch. R. 150. His appointment is made in the same manner, as
that of a guardian of a person. It is the duty of the guardian to take
reasonable and prudent care of the estate of the ward, and manage it in the
most advantageous manner; and when the guardianship shall expire, to account
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with the ward for the administration of the estate.
10. Guardians have also been divided into guardians by nature;
guardian's by nurture; guardians in socage; testamentary guardians;
statutory guardians; and guardians ad litem.
11. - 1. Guardian by nature, is the father, and, on his death, the
mother; this guardianship extends only to the custody of the person; 3 Bro.
C. C. 186; 1 John. Ch. R. 3; 3 Pick. R. 213; and continues till the child
shall acquire the age of twenty one years. Co. Litt. 84 a.
12. - 2. Guardian by nurture, occurs only when the infant is without any
other guardian, and the right belongs exclusively to the parents, first to
the father, and then to the mother. It extends only to the person, and
determines, in males and females, at the age of fourteen. This species of
guardianship has become obsolete.
13. - 3. Guardian in socage, has the custody of the infant's lands as
well as his person. The common law gave this guardianship to the next of
blood to the child to whom the inheritance could not possibly descend. This
species of guardianship has become obsolete, and does not perhaps exist in
this country; for the guardian must be a relation by blood who cannot
possibly inherit, and such a case can rarely exist. 2 Wend. 153: 15 Wend.
631; 6 Paige, 390; 7 Cowen, 36; 5 John. 66.
14. - 4. Testamentary guardians; these are appointed under the stat. 12
Car. II., above mentioned; they supersede the claims of any other guardian,
and extend to the person, an real and personal estate of the child, and
continue till the ward arrives at full age.
15. - 5. Guardians appointed by the courts, by virtue of statutory
authority. The distinction of guardians by nature, and by socage, appear to
have become obsolete, and have been essentially superseded in practice by
the appointment of guardians by courts of chancery, orphans' courts, probate
courts, and such other courts as have jurisdiction to, make such
appointments. Testamentary guardians might, as those of this class, be
considered as statutory guardians, inasmuch as their appointment is
authorized by a statute.
16. - 6. Guardian ad litem, is pointed for the infant to defend him in
an action brought against him. Every court, when an infant is sued in a
civil action, has power to appoint a guardian ad litem when he has no
guardian, for as the infant cannot appoint an attorney, he would be without
assistance if such a guardian-were not appointed. The powers and duties of a
guardian ad litem are confined to the defence of the suit. F. N. B. 27; Co.
Litt. 88 b, note 16; Id. 135 b, note 1; see generally Bouv. Inst. Index, h.
t.; Coop. Inst. 445 to 455.
GUARDIANS OF THE POOR. The name given to officers whose duties are very
similar to those of overseers of the poor, (q. v.) that is, generally to
relieve the distresses of such poor persons who are unable to take care of
themselves.
GUARDIANSHIP, persons. The power or protective authority given by law, and
imposed on an individual who is free and in the enjoyment of his rights,
over one whose weakness on account of his age, renders him unable to protect
himself. Vide Tutor.
GUBERNATOR, civil law. A pilot or steersman of a ship. 2 Pet. Adm. Dec.
Appx. lxxxiii.
GUEST. A traveller who stays at an inn or tavern-with the consent of the
keeper: Bac. Ab. Inns, C 5; 8 Co. 32. And if, after having taken lodgings at
an inn, he leaves his horse there, and goes elsewhere to lodge, he is still
to be considered a guest. But not if he merely leaves goods for which the
landlord receives no compensation. 1 Salk. 888; 2 Lord Raym. 866; Cro. Jac.
188. The length of time a man is at an inn makes no difference, whether he
stays a day, or a week, or a month, or longer, so always, that, though not
strictly transient, he retains his character as a traveller. But if a person
comes upon a special contract to board and sojourn at an inn, he is not in
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the sense of the law a guest, but a boarder. Bac. Ab. Inns, C. 5; Story,
Bailm. Sec. 477.
2. Innkeepers are generally liable for all goods belonging to the guest,
brought within the inn. It is not necessary that the goods should have been
in the special keeping of the innkeeper to male him liable. This rule is
founded on principles of public utility, to which all private considerations
ought to yield. 2 Kent, Com. 459; 1 Hayw. N. C. Rep. 40; 14 John. R. 175;
Dig. 4, 9, 1. Vide 8 Barb. & Ald. 283; 4 Maule & Selw. 306; 1 Holt's N. P.
209; 1 Salk. 387; S. C. Carth. 417; 1 Bell's Com. 469 Dane's Ab. Index, h.
t.; Yelv. 67, a; Smith's Leading Cases, 47; 8 Co. 32.
GUIDON DE LA MER, (LE). The name of a treatise on maritime law, written in
Rouen, then Normandy, in 1671, as is supposed. it was received on the
continent of Europe almost as equal in authority to one of the ancient codes
of maritime law. The author of this work is unknown. This tract or treatise
is contained in the Collection de Lois Maritimes," by J. M. Pardessus. vol.
2, p. 371, et seq.
GUILT, crim. law. That quality which renders criminal and liable to
punishment; or it is that disposition to violate the law, which has
manifested itself by some act already done. The opposite of innocence. Vide
Rutherf. Inst. B. 1, c. 18, s. 10.
2. In general everyone is presumed innocent until guilt has been
proved; but in some cases the presumption of guilt overthrows that of
innocence; as, for example, where a party destroys evidence to which the
opposite party is entitled. The spoliation of papers, material to show the
neutral character of a vessel, furnishes strong presumption against the
neutrality of the ship. 2 Wheat. 227. Vide Spoliation.
GUILTY. The state or condition of a person who has committed a crime,
misdemeanor or offence.
2. This word implies a malicious intent, and must be applied to
something universally allowed to be a crime. Cowp. 275.
3. In pleading, it is a plea by which a defendant who is charged with a
crime, misdemeanor or tort, admits or confesses it. In criminal proceedings,
when the accused is arraigned, the clerk asks him,: How say you, A B, are
you guilty or not guilty?" His answer, which is given ore tenus, is called
his plea; and when he admits the charge in the indictment he answers or
pleads guilty.
H.
HABEAS CORPORA, English practice. A writ issued out of the C. P. commending
the sheriff to compel the appearance of a jury in the cause between the
parties. It answers the same purpose in that court as the Distringas
juratores answers in the K. B. For a form, see Bootes Suit at Law, 151.
HABEAS CORPUS, remedies A writ of habeas corpus is an order in writing,
signed by the judge who grants the same, and sealed with the seal of the
court of he is a judge, issued in the name of the sovereign power where it
is granted, by such a court or a judge thereof, having lawful authority to
issue the same, directed to any one having a person in his custody or under
his restraint, commanding him to produce, such person at a certain time and
place, and to state the reasons why he is held in custody, or under
restraint.
2. This writ was it common law considered as a remedy to remove the
illegal restraint on a freeman. But anterior to the 31 Charles II. its
benefit was, in a great degree, eluded by time-serving judges, who awarded
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it only in term time, and who assumed a discretionary power of awarding or
refusing it. 3 Bulstr. 23. Three or four years before that statute was
passed there had been two very great cases much agitated in Westminster
Hall, upon writs of habeas corpus for private custody, viz: the cases of
Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3
Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely
drew the line of distinction between civil constitutional liberty, as
opposed to the power of the crown, and liberty as opposed to the violence
and power of private persons. Wilmot's Opinions, 85, 86.
3. To secure the full benefit of it to the subject the statute 81 Car.
II. c. 2, commonly called the habeas corpus act, was passed. This gave to
the. writ the vigor, life, and efficacy requisite for the due protection of
the liberty of the subject. In England this. is considered as a high
prerogative writ, issuing out of the court of king's bench, in term time or
vacation, and running into every part of the king's dominions. It is also
grantable as a matter of right, ex debito justitae, upon the application of
any person.
4. The interdict De homine libero exhibendo of the Roman law, was a
remedy very similar to the writ of habeas corpus. When a freeman was
restrained by another, contrary to good faith, the praetor ordered that such
person should be brought before him that he might be liberated. Dig. 43, 29,
1.
5. The habeas corpus act has been substantially incorporated into the
jurisprudence of every state in the Union, and the right to the writ has
been secured by most of the constitutions of the states, and of the United
States. The statute of 31 Car. II. c. 2, provides that the person
imprisoned, if he be not a prisoner convict, or in execution of legal
process, or committed for treason or felony, plainly expressed in the
warrant, or has not neglected willfully, by the space of two whole terms
after his imprisonment, to pray a habeas corpus for his enlargement, may
apply by any one in his behalf, in vacation time, to a judicial officer for
the writ of habeas corpus, and the officer, upon view of the copy of the
warrant of commitment, or upon proof of denial of it after due demand, must
allow the writ to be directed to the person in whose custody the party is
detained, and made returnable immediately before him. And, in term time, any
of the said prisoners may obtain his writ of habeas corpus, by applying to
the proper court.
6. By the habeas corpus law of Pennsylvania, (the Act of February 18,
1785,) the benefit of the writ of habeas corpus is given in "all cases where
any person, not being committed or detained for any criminal, or supposed
criminal matter," Who "shall be confined or restrained of his or her
liberty, under any color or pretence whatsoever." A similar provision is
contained in the habeas corpus act of New York. Act of April 21, 1818, sect.
41, ch. 277.
7. The Constitution of the United State art. 1, s. 9, n. 2, provides,
that "the privilege of the writ of habeas corpus shall not be suspended,
unless when, in cases of rebellion or invasion, the public safety may
require it" and the same principle is contained in many of the state
constitutions. In order still more to secure the citizen the benefit of this
great writ, a heavy penalty is inflicted upon the judges who are bound to
grant it, in case of refusal.
8. It is proper to consider, 1. When it is to be granted. 2. How it is
to be served. 3. What return is to be made to it. 4. The bearing. 5. The
effect of the judgment upon it.
9.-1. The writ is to be granted whenever a person is in actual
confinement, committed or detained as aforesaid, either for a criminal
charge, or, as in Pennsylvania and New York, in all cases where he is
confined or restrained of his liberty, under any color or pretence
whatsoever. But persons discharged on bail will not be considered as
restrained of their liberty so as to be entitled to, a writ of habeas
corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle, 356.
10.-2. The writ may be served by any free person, by leaving it with
the person to whom it is directed, or left at the gaol or prison with any of
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the under officers, under keepers, or deputy of the said officers or
keepers. In Louisiana, it is provided, that if the person to whom it is
addressed shall refuse to receive the writ, he who is charged to serve it,
shall inform him of its contents; if he to whom the writ is addressed
conceal himself, or refuse admittance to the person charged to serve it on
him, the latter shall affix the order on the exterior of the place where the
person resides, or in which the petitioner is so confined. Lo. Code of
Pract. art. 803. The service is proved by the oath of the party making it.
11.-3. The person to whom the writ is addressed or directed, is
required to make a return to it, within the time prescribed; he either
complies, or he does not. If, he complies, he must positively answer, 1.
Whether he has or has not in his power or custody the person to be set at
liberty, or whether that person is confined by him; if he return that he has
not and has not had him in his power or custody, and the return is true, it
is evident that a mistake was made in issuing the writ; if the return is
false, he is liable to a penalty, and other punishment, for making such a,
false return. If he return that he has such person in his custody, then he
must show by his return, further, by what authority, and for what cause, he
arrested or detained him. If he does not comply, he is to be considered in
contempt of the court under whose seal the writ has been issued, and liable
to a severe penalty, to be recovered by the party aggrieved.
12.-4. When the prisoner is brought, before the judge, his judicial
discretion commences, and he acts under no other responsibility than that
which belongs to the exercise of ordinary judicial power. The judge or court
before whom the prisoner is brought on a habeas corpus, examines the return
and Papers, if any, referred to in it, and if no legal cause be shown for
the imprisonment or restraint; or if it appear, although legally committed,
he has not been prosecuted or tried within the periods required by law, or
that, for any other cause, the imprisonment cannot be legally continued, the
prisoner is discharged from custody. In the case of wives, children, and
wards, all the court does, is to see that they ire under no illegal
restraint. 1 Strange, 445; 2. Strange, 982; Wilmot's Opinions, 120.
13. For those offences which are bailable, when the prisoner offers
sufficient bail, he is to be bailed.
14. He is to be remanded in the following cases: 1. When it appears he,
is detained upon legal process, out of some court having jurisdiction of
criminal matters, 2. When he is detained by warrant, under the hand and seal
of a magistrate, for some offence for which, by law, the prisoner is not
bailable. 3. When he is a convict in execution, or detained in execution by
legal civil process. 4. When he is detained for a contempt, specially and
plainly charged in the commitment, by some existing court, having authority
to commit for contempt. 5. When he refuses or neglects to give the requisite
bail in a case bailable of right. The judge is not confined to the return,
but he is to examine into the causes of the imprisonment, and then he is to
discharge, bail, or remand, as justice shall require. 2 Kent, Com. 26; Lo.
Code of Prac. art. 819.
15.-5. It is provided by the habeas corpus act, that a person set at
liberty by the writ, shall not again be imprisoned for the same offence, by
any person whomsoever, other than by the legal order and process of such
court wherein he shall be bound by recognizance to appear, or other court
having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R.
282.
16. The habeas corpus can be suspended only by authority of the
legislature. The constitution of the United States provides, that the
privilege of the writ of habeas corpus shall not be suspended unless when,
in cases of invasion and rebellion, the public safety may require it.
Whether this writ ought to be suspended depends on political considerations,
of which the legislature, is to decide. 4 Cranch, 101. The proclamation of a
military chief, declaring martial law, cannot, therefore, suspend the
operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart. Lo. R. 531.
17. There are various kinds of this writ; the principal of which are
explained below.
18. Habeas corpus ad deliberandum et recipiendum, is a writ which lies
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to remove a prisoner to take his trial in the county where the offence was
committed. Bac. Ab. Habeas Corpus, A.
19. Habeas corpus ad faciendum et recipiendum, is a writ which issues
out of a court of competent jurisdiction, when a person is sued in an
inferior court, commanding the inferior judges to produce the body of the
defendant, together with the day and cause of his caption and detainer,
(whence this writ is frequently denominated habeas corpus cum causa) to do
and receive whatever the court or the judge issuing the writ shall consider
in that behalf. This writ may also be issued by the bail of a prisoner, who
has been taken upon a criminal accusation, in order to surrender him in his
own discharge; upon. the return of this writ, the court will cause an
exoneretur to be entered on the bail piece, and remand the prisoner to his
former custody. Tidd's Pr. 405; 1 Chit. Cr. Law, 182.
20. Habeas corpus ad prosequendum, is a writ which issues for the
purpose of removing a prisoner in order to prosecute. 3 Bl. Com. 130.
21. Habeas corpus ad respondendum, is a writ which issues at the
instance of a creditor, or one who has a cause of action against a person
who is confined by the process of some inferior court, in order to remove
the prisoner and charge him with this new action in the court above. 2 Mod.
198; 3 Bl. Com. 107.
22. Habeas corpus ad satisfaciendum, is a writ issued at the instance of
a plaintiff for the purpose of bringing up a prisoner, against whom a
judgment has been rendered, in a superior court to charge him with the
process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.
23. Habeas corpus ad subjiciendum, by way of eminence called the writ of
habeas corpus, (q.v.) is a writ directed to the person detaining another,
and commanding him to produce the body of the prisoner, with the day and
cause of his caption and detention, ad faciendum, subjiciendum, et
recipiendum, to do, submit to, and receive, whatsoever the judge or court
awarding such writ shall consider in that behalf. 3 Bl. Com. 131; 3 Story,
Const. Sec. 1333.
24. Habeas corpus ad testificandum, a writ issued for the purpose of
bringing a prisoner, in order that he may testify, before the court. 3 Bl.
Com. 130.
25. Habeas corpus cum causa, is a writ which may be issued by the bail
of a prisoner, who has been taken upon a criminal accusation, in order to
render him in their own discharge. Tidd's Pr. 405. Upon the return of this
writ the court will cause an exoneretur to be entered on the bail piece, and
remand the defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law 132.
Vide, generally, Bac. Ab. h.t.; Vin. Ab. h.t.; Com. Dig. h.t.; Nels. Ab.
h.t.; the various American Digests, h.t.; Lo. Code of Prac. art. 791 to
827; Dane's Ab. Index, h.t.; Bouv. Inst. Index, h.t.
HALF PROOF, semiplena probatio, civil law. Full proof is that which is
sufficient to end the controversy, while half proof is that which is
insufficient, as the foundation of a sentence or decree, although in itself
entitled to some credit. Vicat, voc. Probatio.
HALF SEAL. A seal used in the English chancery for the sealing of
commissions to delegates appointed upon any appeal, either in ecclesiastical
or marine causes.
HALF YEAR, In the computation of time, a half year consists of one hundred
and eighty-two days. Co. Litt. 135 b; Rev. Stat., of N. Y. part 1, c. 19, t.
1. Sec. 3.
HALL. A public building used either for the meetings of corporations,
courts, or employed to some public uses; as the city hall, the town hall.
Formerly this word denoted the chief mansion or habitation.
HALLUCINATION, med. jur. It is a species of mania, by which "an idea
reproduced by the memory is associated and embodied by the imagination."
This state of mind is sometimes called delusion or waking dreams.
2. An attempt has been made to distinguish hallucinations from
illusions; the former are said to be dependent on the state of the
intellectual organs and, the latter, on that of those of sense. Ray, Med.
Jur. Sec. 99; 1 Beck, med. Jur. 538, note. An instance is given of a
temporary hallucination in the celebrated Ben Johnson, the poet. He told a
friend of his that he had spent many a night in looking at his great toe,
about which he had seen Turks and Tartars, Romans and Carthagenians, fight,
in his imagination. 1 Coll. on Lun. 34. If, instead of being temporary, this
affection of his mind had been permanent, he would doubtless have been
considered insane. See, on the subject of spectral illusions, Hibbert,
Alderson and Farrar's Essays; Scott on Demonology, &c.; Bostock's
Physiology, vol. 3, p. 91, 161; 1 Esquirol, Maladies Mentales, 159.
HALMOTE. The name of a court among the Saxons. It had civil and criminal
jurisdiction.
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HAMESUCKEN, Scotch law. The crime of hamesucken consists in "the felonious
seeking and invasion of a person in his dwelling house." 1 Hume, 312;
Burnett, 86; Alison's Princ. of the Cr. Law of Scotl. 199.
2. The mere breaking into a house, without personal violence, does not
constitute the offence, nor does the violence without an entry with intent
to, commit an assault. It is the combination of both which completes the
crime. 1. It is necessary that the invasion of the house should have
proceeded from forethought malice; but it is sufficient, if, from any
illegal motive, the violence has been meditated, although it may not have
proceeded from the desire of wreaking personal revenge, properly so called.
2. The place where the assault was committed must have been the proper
dwelling house of the party injured, and not a place of business, visit, or
occasional residence. 3. the offence maybe committed equally in the day as
in the night, and not only by effraction of the building by actual force but
by an entry obtained by fraud, with the intention of inflicting personal
violence, followed by its perpetration. 4. But unless the injury to the
person be of a grievous and material, character, it is not hamesucken,
though the other requisites to the crime have occurred. When this is the
case, it is immaterial whether the violence be done lucri causŲ, or from
personal spite. 5. The punishment of hamesucken in aggravated cases of
injury, is death in cases of inferior atrocity, an arbitrary punishment.
Alison's Pr. of Cr. Law of Scotl. ch. 6; Ersk. Pr. L. Scotl. 4, 9, 23. This
term wag formerly used in England instead of the now modern term burglary. 4
Bl. Com. 223.
HAMLET, Eng. law. A small village; a part or member of a vill.
HANAPER OFFICE, Eng.law. This is the name of one of the offices belonging to
the English court of chancery. 3 Bl. Com. 49.
HAND. That part of the human body at the end of the arm.
2. Formerly the hand was considered as the symbol of good faith, and
some contracts derive their names from the fact that the hand was used in
making them; as handsale, (q.v.) mandatum, (q.v.) which comes from a
mandata. The hand is still used for various legal or forensic purposes. When
a person is accused of a crime and he is arraigned, and he is asked to hold
up his right hand; and when one is sworn as a witness, he is required to lay
his right hand on the Bible, or to hold it up.
3. Hand is also the name of a measure of length used in ascertaining
the height of horses. It is four inches long. See Measure: Ell.
4. In a figurative sense, by hand is understood a particular form of
writing; as if B writes a good hand. Various kinds of hand have been used,
as, the secretary hand, the Roman hand, the court hand, &c. Wills and
contracts may be written in any of these, or any other which is
intelligible.
HANDBILL. A printed or written notice put up on walls, &c., in order to
inform those concerned of something to be done.
HANDSALE, contracts. Anciently, among all the northern nations, shaking of
hands was held necessary to bind a bargain; a custom still retained in
verbal contracts; a sale thus made was called handsale, venditio per mutuam
manum complexionem. In process of time the same word was used to signify the
price or earnest which was given immediately after the shaking of hands, or
instead thereof. In some parts of the country it is usual to speak of hand
money as the part of the consideration paid or to be paid at the execution
of a contract of sale. 2 Bl. Com. 448. Heineccius, de Antique Jure
Germanico, lib. 2, Sec. 335; Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 2, n. 33.
HANDWRITING, evidence. Almost every person's handwriting has something
whereby it may be distinguished from the writing of others, and this
difference is sometimes intended by the term.
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2. It is sometimes necessary to prove that a certain instrument or name
is in the handwriting of a particular person; that is done either by the
testimony of a witness, who saw the paper or signature actually written, or
by one who has by sufficient means, acquired such a knowledge of the general
character of the handwriting of the party, as will enable him to swear to
his belief, that the handwriting of the person is the handwriting in
question. 1 Phil. Ev. 422; Stark. Ev. h.t.; 2 John. Cas. 211; 5 John. R.
144; 1 Dall. 14; 2 Greenl. R. 33; 6 Serg. & Rawle, 668; 1 Nott & M'Cord,
554; 19 Johns. R. 134; Anthon's N. P. 77; 1 Ruffin's R. 6; 2 Nott & M'Cord,
400; 7 Com. Dig. 447; Bac. Ab. Evidence, M; Dane's Ab. Index, h.t.
HANGING, punishment. Death by the halter, or the suspending of a criminal,
condemned to suffer death, by the neck, until life is extinct. A mode of
capital punishment.
HANGMAN. The name usually given to a man employed by the sheriff to put a
man to death, according to law, in pursuance of a judgment of a competent
court, and lawful warrant. The same as executioner. (q.v.)
HAP. An old word which signifies to catch; as, "to hap the rent," to hap the
deed poll." Techn. Dict. h.t.
HARBOR. A place where ships may ride with safety; any navigable water
protected by the surrounding country; a haven. (q.v.) It is public
property. 1. Bouv. Inst. n. 435.
TO HARBOR, torts. To receive clandestinely or without lawful authority a
person for the purpose of so concealing him that another having a right to
the lawful custody of such person, shall be deprived of the same; for
example, the harboring of a wife or an apprentice, in order to deprive the
husband or the master of them; or in a less technical sense, it is the
reception of persons improperly. 10 N. H. Rep. 247; 4 Scam. 498.
2. The harboring of such persons will subject the harborer to an,
action for the injury; but in order to put him completely in the wrong, a
demand should be made for their restoration, for in cases where the harborer
has not committed any other wrong than merely receiving the plaintiff's
wife, child, or apprentice, he may be under no obligation to return them
without a demand. 1 Chit. Pr. 564; Dane's Ab. Index, h.t.; 2 N. Car. Law
Repos. 249; 5 How. U. S. Rep. 215, 227.
HARD LABOR, punishment. In those states where the penitentiary system has
been adopted, convicts who are to be imprisoned, as part of their
punishment, are sentenced to perform hard labor. This labor is not greater
than many freemen perform voluntarily, and the quantity required to be
performed is not at all unreasonable. In the penitentiaries of Pennsylvania
it consists in being employed in weaving, shoemaking, and such like
employments.
HART. A stag or male deer of the forest five years old complete.
HAT MONEY, mar. law. The name of a small duty paid to the captain and
mariners of a ship, usually called primage. (q.v.)
TO HAVE. These words are used in deeds for the conveyance of land, in that
clause which usually declared for what estate the land is granted. The same
as Habendum. (q.v.) Vide Habendum; Tenendum.
HAVEN. A place calculated for the reception of ships, and so situated, in
regard to the surrounding land, that the vessel may ride at anchor in it in
safety. Hale, de Port. Mar. c. 2; 2 Chit. Com. Law, 2; 15 East, R. 304, 5.
Vide Creek; Port; Road.
HAWKERS. Persons going from place to place with goods and merchandise for
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sale. To prevent impositions they are generally required to take out
licenses, under regulations established by the local laws of the states.
HAZARDOUS CONTRACT, civil law. When the performance of that which is one of
its objects, depends on an uncertain event, the contract is said to be
hazardous. Civ. Co. of Lo. art. 1769 1 Bouv. Inst. n. 707.
2. When a contract is hazardous, and the lender may lose all or some
part of his principal, it is lawful for him to charge more than lawful
interest for the use of his money. Bac. Ab. Usury D; 1 J. J. Marsh, 596; 3
J. J. Marsh, 84.
HEAD BOROUGH, English law. Formerly he was a chief officer of a borough, but
now he is an officer subordinate to constable. St. Armand, Hist. Essay on
the Legisl. Power of Eng. 88.
HEALTH. Freedom from pain or sickness; the most perfect state of animal
life. It may be defined, the natural agreement and concordant dispositions
of the parts of the living body.
2. Public health is an object of the utmost importance and has
attracted the attention of the national and state legislatures.
3. By the act of Congress of the 25th of February, 1799, 1 Story's L.
U. S. 564, it is enacted: 1. That the quarantines and other restraints,
which shall be established by the laws of any state, respecting any vessels
arriving in or bound to any port or district thereof, whether coming from a
foreign port or some other part of the United States, shall be observed and
enforced by all officers of the United States, in such place. Sect. 1. 2. In
times of contagion the collectors of the revenue may remove, under the
provisions of the act, into another district. Sect. 4. 3. The judge of any
district court may, when a contagious disorder prevails in his district,
cause the removal of persons confined in prison under the laws of the United
States, into another district. Sect. 5. 4. In case of the prevalence of a
contagious disease at the seat of government, the president of the United
States may direct the removal of any or all public offices to a place of
safety. Sect. 6. 5. In case of such contagious disease, at the seat of
government, the chief justice, or in case of his death or inability, the
senior associate justice of the supreme court of the United States, may
issue his warrant to the marshal of the district court within which the
supreme court is by law to be holden, directing him to adjourn the said
session of the said court to such other place within the same or adjoining
district as he may deem convenient. And the district judges may, under the
same circumstances, have the same power to adjourn to some other part of
their several districts. Sect. 7.
3. Offences against the provisions of the health laws are generally
punished by fine and imprisonment. These are offences against public health,
punishable by the common law by fine and imprisonment, such for example, as
selling unwholesome provisions. 4 Bl. Com. 162; 2 East's P. C. 822; 6 East,
R.133 to 141; 3 M. & S. 10; 4 Campb. R. 10.
4. Private injuries affecting a man's health arise upon a breach of
contract, express or implied; or in consequence of some tortious act
unconnected with a contract.
5.-1. Those injuries to health which arise upon contract are, 1st.
The misconduct of medical men, when, through neglect, ignorance, or wanton
experiments, they injure their patients. 1 Saund. 312, n. 2. 2d. By the sale
of unwholesome food; though the law does not consider a sale to be a
warranty as to the goodness or quality of a personal chattel, it is
otherwise with regard to food and liquors. 1 Rolle's Ab. 90, pl. 1, 2.
6.-2. Those injuries which affect a man's health, and which arise
from tortious acts unconnected with contracts, are, 1st. Private nuisances.
2d. Public nuisances. 3d. Breaking quarantine. 4th. By sudden alarms, and
frightening; as by raising a pretended ghost. 4 Bl. Com. 197, 201, note 25;
1 Hale, 429; Smith's Forens. Med. 37 to 39; 1 Paris & Fonbl. 351, 352. For
private injuries affecting his health a man may generally have an action on
the case.
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HEALTH OFFICER. The name of an officer invested with power to enforce the
health laws. The powers and duties of health officers are regulated by local
laws.
HEARING, chancery practice. The term, hearing is given to the trial of a
chancery suit.
2. The hearing is conducted as follows. When the cause is called on in
court, the pleadings on each side are opened in a brief manner to the court
by the junior counsel for the plaintiff; after which the plaintiff's leading
counsel states the plaintiff's case, and the points in issue, and submits to
the court his arguments upon them. Then the depositions (if any) of the
plaintiff's witnesses, and such parts of the defendant's answer as support
the plaintiff's case are read by the plaintiff's solicitor; after which the
rest of the plaintiff's counsel address the court; then the same course of
proceedings is observed on the other side, excepting that no part of the
defendant's answer can be read in his favor, if it be replied to; the
leading counsel for the plaintiff is then heard in reply; after which the
court pronounces the decree, Newl. Pr. 153, 4; 14 Vin. Ab. 233; Com. Dig.
Chancery, T. 1, 2, 3.
HEARING, crim. law. The examination of a prisoner charged with a crime or
misdemeanor, and of the witnesses for the accuser.
2. The magistrate should examine with care all the witnesses for the
prosecution, or so many of them as will satisfy his mind that there is
sufficient ground to believe the prisoner guilty, and that the case ought to
be examined in court and the prisoner ought to be tried. If, after the
hearing of all such witnesses, the offence charged is not made out, or, if
made out, the matter charged is not criminal, the magistrate is bound to
discharge the prisoner.
3. When the magistrate cannot for want of time, or on account of the
absence of a witness, close the hearing at one sitting, he may adjourn the
case to another day, and, in bailable offences, either take bail from the
prisoner for his appearance on that day, or commit him for a further
hearing. See Further hearing.
4. After a final hearing, unless the magistrate discharge the prisoner,
it is his duty to take bail in bailable offences, and he is the sole judge
of the amount of bail to be demanded this, however, must not be excessive.
He is the sole judge, also, whether the offence be bailable or not. When the
defendant can give the bail required, he must be discharged; when not, he
must be committed to the county prison, to take his trial, or to be
otherwise disposed of according, to law. See 1 Chit. Cr. Law, 72, ch. 2.
HEARSAY EVIDENCE. The evidence of those who relate, not what they know
themselves, but what they have heard from others.
2. As a general rule, hearsay evidence of a fact is not admissible. If
any fact is to be substantiated against a person, it ought to be proved in
his presence by the testimony of a witness sworn or affirmed to speak the
truth.
3. There are, however, exceptions to the rule. 1. Hearsay is admissible
when it is introduced, not as a medium of proof in order to establish a
distinct fact, but as being in itself a part of the transaction in question,
when it is a part of the res gestae. 1 Phil. Ev. 218; 4 Wash. C. C. R. 729;
14 Serg. & Rawle, 275; 21 How. St. Tr. 535; 6 East, 193.
4.-2. What a witness swore on a former trial, between the same
parties, and where the same point was in issue as in the second action, and
he is since dead, what he swore to is in general, evidence. 2 Show. 47; 11
John. R. 446; 2 Hen. & Munf. 193; 17 John. R. 176; But see 14 Mass. 234; 2
Russ. on Cr. 683, and the notes.
5.-3. The dying declarations of a person who has received a mortal
injury, as to the fact itself, and the party by whom it was committed, are
good evidence under certain circumstances. Vide Declarations, and 15 John.
R. 286; 1 Phil. Ev. 215; 2 Russ. on Cr. 683.
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6.-4. In questions concerning public rights, common reputation is
admitted to be evidence.
7.-5. The declarations of deceased persons in cases where they appear
to have been made against their interest, have been admitted.
8.-6. Declarations in cases of birth and pedigree are also to be
received in evidence.
9.-7. Boundaries may be proved by hearsay evidence, but, it seems, it
must amount to common tradition or repute. 6 Litt. 7; 6 Pet. 341; Cooke, R
142; 4 Dev. 342; 1 Hawks 45; 4 Hawks, 116; 4 Day, 265. See 3 Ham. 283; 3
Bouv. Inst. n. 3065, et seq. 10. There are perhaps a few more exceptions
which will be found in the books referred to below. 2 Russ. on Cr. B. 6, c.
3; Phil. Ev. ch. 7, s. 7; 1 Stark. Ev. 40; Rosc. Cr. Ev. 20; Rosc. Civ. Ev.
19 to 24; Bac. Ab. Evidence, K; Dane's Ab. Index, h.t. Vide also, Dig. 39,
3, 2, 8; Id. 22, 3, 28. see Gresl. Eq. Ev. pt. 2, c. 3, s. 3, p. 218, for
the rules in courts of equity, as to receiving hearsay evidence 20 Am. Jur.
68.
HEDGE-BOTE. Wood used for repairing hedges or fences. 2 Bl. Com. 35; 16
John. 15.
HEIFER. A young cow, which has not had a calf. A beast of this kind two
years and a half old, was held to be improperly described in the indictment
as a cow. 2 East, P. C. 616; 1 Leach, 105.
HEIR. One born in lawful matrimony, who succeeds by descent, and right of
blood, to lands, tenements or hereditaments, being an estate of inheritance.
It is an established rule of law, that God alone can make an heir. Beame's
Glanville, 143; 1 Thomas, Co. Lit. 931; and Butler's note, p. 938. Under the
word heirs are comprehended the heirs of heirs in infinitum. 1 Co. Litt. 7
b, 9 a, 237 b; Wood's Inst. 69. According to many authorities, heir may be
nomen collectivuum, as well in a deed as in a will, and operate in both in
the same manner, as heirs in the plural number. 1 Roll. Abr. 253; Ambl. 453;
Godb. 155; T. Jones, 111; Cro, Eliz. 313; 1 Burr. 38; 10 Vin. Abr. 233, pl.
1; 8 Vin. Abr. 233; sed vide 2 Prest. on, Est. 9, 10. In wills, in order to
effectuate the intention of the testator, the word heirs is sometimes
construed to mean next of kin; 1 Jac. & Walk. 388; and children, Ambl. 273.
See further, as to the force and import of this word, 2 Vent. 311; 1 P. Wms.
229; 3 Bro. P. C. 60, 454; 2 P. Wms. 1, 369; 2 Black. R. 1010; 4 Ves. 26,
766, 794; 2 Atk. 89, 580; 5 East Rep. 533; 5 Burr. 2615; 11 Mod. 189; 8 Vin.
Abr. 317; 1 T. R. 630; Bac. Abr. Estates in fee simple, B.
2. There are several kinds of heirs specified below.
3. By the civil law, heirs are divided into testamentary or instituted
heirs legal heirs, or heirs of the blood; to which the Civil Code of
Louisiana has added irregular heirs. They are also divided into
unconditional and beneficiary heirs.
4. It is proper here to notice a difference in the meaning of the word
heir, as it is understood by the common and by, the civil law. By the civil
law, the term heirs was applied to all persons who were called to the
succession, whether by the act of the party or by operation of law. The
person who was created universal successor by a will, was called the
testamentary heir; and the next of kin by blood was, in cases of intestacy,
called the heir at law, or heir by intestacy. The executor of the common law
is, in many respects, not unlike the testamentary heir of the civil law.
Again, the administrator in many respects corresponds with the heir by
intestacy. By the common law, executors unless expressly authorized by the
will and administrators, have no right, except to the personal estate of the
deceased; whereas, the heir by the civil law was authorized to administer
both the personal and real estate. 1 Brown's Civ. Law, 344; Story, Confl. of
Laws, Sec. 508.
5. All free persons, even minors, lunatics, persons of insane mind or
the like, may transmit their estates as intestate ab intestato, and inherit
from others. Civ. Code of Lo., 945; Accord, Co. Lit. 8 a.
6. The child in its mother's womb, is considered as born for all
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purposes of its own interest; it takes all successions opened in its favor,
after its conception, provided it be capable of succeeding at the moment of
its birth. Civ. Code of Lo. 948. Nevertheless, if the child conceived is
reputed born, it is only in the hope of its birth; it is necessary then that
the child be born alive, for it cannot be said that those who are born dead
ever inherited. Id. 949. See In ventre sa mere.
HEIR. APPARENT. One who has an indefeasible right to the inheritance,
provided he outlive the ancestor. 2 Bl. Com. 208.
HEIR, BENEFICIARY. A term used in the civil law. Beneficiary heirs are those
who have accepted the succession under the benefit of an inventory regularly
made. Civ. Code of Lo. art. 879. If the heir apprehend that the succession
will be burdened with debts beyond its value, he accepts with benefit of
inventory, and in that case he is responsible only for the value of the
succession. See inventory, benefit of.
HEIR, COLLATERAL. A collateral heir is one who is not of the direct line of
the deceased, but comes from a collateral line; as, a brother, sister, an
uncle and aunt, a nephew, niece, or cousin of the deceased.
HEIR, CONVENTIONAL, civil law. A conventional heir is one who takes a
succession by virtue of a contract; for example, a marriage contract, which
entitles the heir to the succession.
HEIR, FORCED. Forced heirs are those who cannot be disinherited. This term
is used among the civilians. Vide Forced heirs
HEIR, GENERAL. Heir at common in the English law. The heir at common law is
he who, after his father or ancestor's death has a right to, and is
introduced into all his lands, tenements and hereditaments. He must be of
the whole blood, not a bastard, alien, &c. Bac. Abr. Heir, B 2; Coparceners;
Descent.
HEIR, IRREGULAR. In Louisiana, irregular heirs are those who are neither
testamentary nor legal, and who have been established by law to take the
succession. See Civ. Code of Lo. art. 874. When the deceased has left
neither lawful descendants nor ascendants, nor collateral relations, the law
calls to his inheritance either the surviving husband or wife, or his or her
natural children, or the state. Id. art., 911. This is called an irregular
succession.
HEIR AT LAW. He who, after his ancestor's death intestate, has a right to
all lands, tenements, and hereditaments, which belonged to him, or of which
he was seised. The same as heir general. (q.v.)
HEIR, LEGAL, civil law. A legal heir is one who is of the same blood of the
deceased, and who takes the succession by force of law; this is different
from a testamentary or conventional heir, who takes the succession in virtue
of the disposition of man. See Civil, Code of Louis. art. 873, 875; Dict. de
Jurisp., Heritier legitime. There are three classes of legal heirs, to wit;
the children and other lawful descendants; the fathers and mothers and other
lawful ascendants; and the collateral kindred. Civ. Code of Lo. art. 883.
HEIR LOOM, estates. This word seems to be compounded of heir and loom, that
is, a frame, viz. to weave in. Some derive the word loom from the Saxon
loma, or geloma, which signifies utensils or vessels generally. However this
may be, the word loom, by time, is drawn to a more general signification,
than it, at the first, did bear, comprehending all implements of household;
as, tables, presses, cupboards, bedsteads, wainscots, and which, by the
custom of some countries, having belonged to a house, are never inventoried
after the decease of the owner, as chattels, but accrue to the heir, with
the house itself minsheu[?]. The term heir looms is applied to those
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chattels which are considered as annexed and necessary to the enjoyment of
an inheritance.
2. They are chattels which, contrary to the nature of chattels, descend
to the heir, along with the inheritance, and do not pass to the executor of
the last proprietor. Charters, deeds, and other evidences of the title of
the land, together with the box or chest in which they are contained; the
keys of a house, and fish in a fish pond, are all heir looms. 1 Inst. 3 a;
Id. 185 b; 7 Rep. 17 b; Cro. Eliz. 372; Bro. Ab. Charters, pl. 13; 2 Bl.
Com. 28; 14 Vin. Ab. 291.
HEIR PRESUMPTIVE. A presumptive heir is one who, in the present
circumstances, would be entitled to the inheritance, but whose rights may be
defeated by the contingency of some nearer heir being born. 2 B1 Com. 208.
In Louisiana, the presumptive heir is he who is the nearest relation of the
deceased, capable of inheriting. This quality is given to him before the
decease of the person from whom he is to inherit, as well as after the
opening of the succession, until he has accepted or renounced it. Civ. Code
of Lo. art. 876.
HEIR, TESTAMENTARY, civil law. A testamentary heir is one who is constituted
heir by testament executed in the form prescribed by law. He is so called to
distinguish him from the legal heirs, who are called to the succession by
the law; and from conventional heirs, who are so constituted by a contract
inter vivos. See Haeres factus; Devisee.
HEIR, UNCONDITIONAL. A term used in the civil law, adopted by the Civil Code
of Louisiana. Unconditional heirs are those who inherit without any
reservation, or without making an inventory, whether their acceptance be
express or tacit. Civ. Code of Lo. art. 878.
HEIRESS. A female heir to a person having an estate of inheritance. When
there is more than one, they are called co-heiresses, or co-heirs.
HIGH CONSTABLE. An officer appointed in some cities bears this name. His
powers are generally limited to matters of police, and are not more
extensive in these respects than those of constables. (q.v.)
HIGH COURT OF DELEGATES, English law. The name of a court established by
stat. 25 Hen. VIII. c. 19, s. 4. No permanent judges are appointed, but in
every case of appeal to this court, there issues a special commission, under
the great seal of Great Britain, directed to such persons as the lord
chancellor, lord keeper, or lords commissioners of the great seal, for the
time being, shall think fit to appoint to bear and determine the same. The
persons usually appointed, are three puisne judges, one from each court of
common law, and three or more civilians; but in special cases, a fuller
commission is sometimes issued, consisting of spiritual and temporal peers,
judges of the common law, and civilians, three of each description. In case
of the court being equally divided, or no common law judge forming part of
the majority, a commission of adjuncts issues, appointing additional judges
of the same description. 1 Hagg. Eccl. R. 384; 2 Hagg. Eccl. R. 84; 3 Hagg.
@Eccl. R. 471; 4 Burr. 2251.
HIGH SEAS. This term, which is frequently used in the laws of the United
States signifies the unenclosed waters of the ocean, and also those waters
on the sea coast which are without the boundaries of low water mark. 1 Gall.
R. 624; 5 Mason's R. 290; 1 Bl. Com. 110; 2 Haze. Adm. R. 398; Dunl. Adm.
Pr. 32, 33.
2. The Act of Congress of April 30 1790, s. 8, 1 Story'S L. U. S. 84,
enacts, that if any person shall commit upon the high seas, or in any river,
haven, basin, or bay, out of the jurisdiction of any particular state,
murder, &c., which, if committed within the body of a county, would, by the
laws of the United States, be punishable with death, every such offender,
being thereof convicted, shall suffer death and the trial of crimes
committed on the high seas, or in any place out of the jurisdiction of any
particular state, shall be in the district where the offender is
apprehended, or into which he may first be brought. See 4 Dall. R. 426; 3
Wheat. R. 336; 5 Wheat 184, 412; 3 W. C. C. R. 515; Serg. Const. Law, 334;
13 Am. Jur. 279 1 Mason, 147, 152; 1 Gallis. 624.
HIGH TREASON, English law. Treason against the king, in contradistinction
with petit treason, which is the treason of a servant towards his master; a
wife towards her husband; a secular or religious man against his prelate.
See Petit treason; Treason.
HIGH WATER MARK. That part of the shore of the sea to which the waves
ordinarily reach when he tide is at its highest. 6 Mass. R. 435; 1 Pick. R.
180; 1 Halst. R. 1; 1 Russ. on Cr. 107; 2 East, P. C. 803. Vide Sea shore;
Tide.
HIGHEST BIDDER, contracts. He who, at an auction, offers the greatest price
for the property sold.
2. The highest bidder is entitled to have the article sold at his bid,
provided there has been no unfairness on his part. A distinction has been
made between the highest and the best bidder. In judicial sales, where the
highest bidder is unable to pay, it is said the sheriff may offer the
property to the next highest, who will pay, and he is considered the highest
best bidder. 1 Dall. R. 419.
HIGHWAY. A passage or road through the country, or some parts of it, for the
use of the people. 1 Bouv. Inst. n. 442. The term highway is said to be a
generic name for all kinds of public ways. 6 Mod R, 255.
2. Highways are universally laid out by public authority and repaired
at the public expense, by direction of law. 4 Burr. Rep. 2511.
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3. The public have an easement over a highway, of which the owner of
the land cannot deprive them; but the soil and freehold still remain in the
owner, and he may use the land above and below consistently with the
easement. He may, therefore, work a mine, sink a drain or water course,
under the highway, if the easement remains unimpaired. Vide Road; Street;
Way; and 4 Vin. Ab. 502; Bac. Ab. h.t.; Com. Dig. Chemin; Dane's Ab. Index,
h.t.; Egremont on Highways; Wellbeloved on Highways; Woolrych on Ways; 1 N.
H. Rep. 16; 1 Conn. R. 103; 1 Pick. R. 122; 1 M'Cord's R. 67; 2 Mass. R.
127; 1 Pick. R. 122; 3 Rawle, R. 495; 15 John. R. 483; 16 Mass. R. 33; 1
Shepl. R. 250; 4 Day, R. 330; 2 Bail. R. 271; 1 Yeates, Rep. 167.
4. The owners of lots on opposite sides of a highway, are prima facie
owners, each of one half of the highway,, 9 Serg. & Rawle, 33; Ham. Parties,
275; Bro. Abr. Nuisance, pl. 18 and the owner may recover the possession in
ejectment, and have it delivered to him, subject to the public easement.
Adams on Eject. 19, 18; 2 Johns. Rep. 357; 15 Johns. Rep. 447; 6 Mass. 454;
2 Mass. 125.
5. If the highway is impassable, the public have the right to pass over
the adjacent soil; but this rule does not extend to private ways, without an
express grant. Morg. Vad. Mec. 456-7; 1 Tho. Co. Lit. 275; note 1 Barton,
Elem. Conv. 271; Yelv. 142, note 1.
HIGHWAYMAN. A robber on the highway.
HILARY TERM, Eng. law. One of the four terms of the courts, beginning the
11th and ending the 31st day of January in each year.
HIGLER, Eng. law. A person who carries from door to door, and sells by
retail, small articles of provisions, and the like.
HIRE, contracts. A bailment, where a compensation is to be given for the use
of a thing, or for labor or services about it. 2 Kent's Com. 456; 1 Bell's
Com. 451; Story on Bailm. Sec. 369; see 1 Bouv. Inst. n. 980, et seq;
Pothier, Contrat de Louage, ch. 1, n. 1; Domat, B. 1, tit. 4 Sec. 1, n. 1
Code Civ. art.. 1709, 1710; Civ. Code of Lo., art. 2644, 2645. See this
Dict. Hirer; Letter.
2. The contract of letting and hiring is usually divided into two
kinds; first, Locatio, or Locatio conductio rei, the bailment of a thing to
be used by the hirer, for a compensation to be paid by him.
3. Secondly, Locatio operis, or the hire of the labor and services of
the hirer, for a compensation to be paid by the letter.
4. And this last kind is again subdivided into two classes: 1. Locatio
operis faciendi, or the hire of labor and work to be done, or care and
attention to be bestowed on the goods let by the hirer, for a compensation;
or,
5.-2. Locatio operis mercium vehendarum, or the hire and carriage of
goods from one place to another, for a compensation. Jones' Bailm. 85, 86,
90, 103, 118; 2 Kent's Com. 456; Code Civ. art. 1709, 1710, 1711.
6. This contract arises from the principles of natural law; it is
voluntary, and founded in consent; it involves mutual and reciprocal
obligations; and it is for mutual benefit. In some respects it bears a
strong resemblance to the contract of sale, the principal difference between
them being, that in cases of sale, the owner, parts with the whole
proprietary interest in the thing; and in cases of hire, the owner parts
with it only for a temporary use and purpose. In a sale, the thing itself is
the object of the contract; in hiring, the use of the thing is its object.
Vinnius, lib. 3, tit. 25, in pr.; Pothier, Louage, n. 2, 3, 4; Jones Bailm.
86; Story on Bailm. Sec. 371.
7. Three things are of the essence of the contract: 1. That there
should be a thing to be let. 2. A price for the hire. 3. A contract
possessing a legal obligation. Pothier, Louage, n. 6; Civ. Code of Lo. art.
2640.
8. There is a species of contract in which, though no price in money be
paid, and which, strictly speaking, is not the contract of hiring, yet
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partakes of its nature. According to Pothier, it is an agreement which must
be classed with contracts do ut des. (q.v.) It frequently takes place among
poor people in the country. He gives the following example: two poor
neighbors, each owning a horse, and desirous to plough their respective
fields, to do which two horses are required, one agrees that he will let the
other have his horse for a particular time, on condition that the latter
will let the former have his horse for the same length of time. Du Louage n.
458. This contract is not a hiring, strictly speaking, for want of a price;
nor is it a loan for use, because there is to be a recompense. It has been
supposed to be a partnership; but it is different from that contract,
because there is no community of profits. This contract is, in general,
ruled by, the same principles which govern the contract of hiring. 19 Toull.
n. 247.
9. Hire also, means the price given for the use of the thing hired; as,
the hirer is bound to pay the hire or recompense. Vide Domat. liv. 1, tit.
4; Poth. Contrat de Louage; Toull. tomes 18, 19, 20; Merl. Repert. mot
Louage; Dalloz, Dict. mot Louage; Argou, Inst. liv. 3, c. 27.
HIRER, contracts. Called, in the civil law, conductor, and, in the French
law conducteur, procureur, locataire, is he who takes a thing from another,
to use it, and pays a compensation therefor. Wood's Inst. B. 3, c. 5, p.
236; Pothier, Louage, n. 1; Domat, B. 1, tit. 4, Sec. 1, n. 2; Jones' Bailm.
70; see this Dict. Letter.
2. There is, on the part of the hirer, an implied obligation, not only
to use the thing with due care and moderation but not to apply it to any
other use than that for which it is hired; for example, if a horse is hired
as a saddle, horse; the hirer has no right to use the horse in a cart, or to
carry loads, or as a beast of burden. Pothier Louage, n. 189; Domat, B. 1,
tit. 4, Sec. 2, art. 2, 3; Jones' Bailm. 68, 88; 2 Saund. 47 g, and note; 1
Bell's Com. 454; 1 Cowen's R. 322; 1 Meigs, R. 459. If a carriage and horses
are hired to go from Philadelphia to New York, the hirer has no right to go
with them on a journey to Boston. Jones' Bailm. 68; 2 Ld. Raym. 915. So, if
they are hired for a week, he has no right to use them for a month, Jones'
Bailm. 68; 2 Ld. Raym. 915; 5 Mass. 104. And if the thing be used for a
different purpose from that which was intended by the parties, or in a
different manner, or for a longer period, the hirer is not only responsible
for all damages, but if a loss occur, although by inevitable casualty, he
will be responsible therefor. 1 Rep. Const. C. So. Car. 121; Jones' Bailm.
68, 121; 2 Ld. Raym. 909, 917. In short, such a misuser is deemed a
conversion of the property, for which the hirer is deemed responsible. Bac.
Abr. Bailment, C; Id. Trover, C, D, E; 2 Saund. 47 g; 2 Bulst. 306, 309.
3. The above rules apply to cases where the hirer has the possession as
well as the use of the thing hired when the owner or his agents retain the
possession, the hirer is not in general responsible for an injury done to
it. For example, when the letter of a carriage and a pair of horses sent his
driver with them and an injury occurred, the hirer was held not to be
responsible. 9 Watts, R. 556, 562; 5 Esp. R. 263; Poth. Louage n. 196;
Jones, Bailm. 88; Story., Bailm. Sec. 403. But see 1 Bos. & P. 404, 409; 5
Esp. N. P. c 35; 10 Am. Jur. 256.
4. Another implied obligation of the hirer is to restore the thing
hired, when the bailment, is determined. 4 T. R. 260; 3 Camp. 5, n.; 13
Johns. R. 211.
5. The time, the place, and the mode of restitution of the thing hired,
are governed by the circumstances of each case depend and depend upon rules
of presumption of the intention of the parties, like those in other cases of
bailment. Story on Bailm. Sec. 415
6. There is also an implied obligation on the part of the hirer, to pay
the hire or recompense. Pothier, Louage, n. 134; Domat, B. 2, tit. 2, Sec.
2, n. 11 Code Civ; art. 1728.
See, generally, Bouv. Inst. Index, h.t.; Employer; Letter.
HIS EXCELLENCY. A title given by the constitution of Massachusetts to the
governor of that commonwealth. Const. part 2, c. 2, s. 1, art. 1. This title
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is customarily given to the governors of the other states, whether it be the
official designation in their constitutions and laws or not.
HISTORY, evidence. The recital of facts written and given out for true.
2. Facts stated in histories may be read in evidence, on the ground of
their notoriety. Skin. R. 14; 1 Ventr. R. 149. But these facts must be of a
public nature, and the general usages and customs of the country. Bull. P.
248; 7 Pet. R. 554; 1 Phil. & Am. Ev. 606; 30 Howell's St. Tr. 492.
Histories are not admissible in relation to matters not of a public nature,
such as the custom of a particular town, a descent, the boundaries of a
county, and the like. 1 Salk. 281; S. C. Skin. 623; T. Jones, 164; 6 C. & P.
586, note. See 9 Ves. 347; 10 Ves. 354; 3 John. 385; 1 Binn. 399; and
Notoriety.
HOERES FACTUS, civil law. An heir instituted by testament; one made an heir
by the testator. Vide Heir.
HOGSHEAD. A measure of wine, oil, and the like, containing half a pipe; the
fourth part of a tun, or sixty-three gallons.
TO HOLD. These words are now used in a deed to express by what tenure the
grantee is to have the land. The clause which commences with these words is
called the tenendum. Vide Habendum; Tenendum.
2. To hold, also means to decide, to adjudge, to decree; as, the court
in that case held that the husband was not liable for the contract of the
wife, made without his express or implied authority.
3. It also signifies to bind under a contract, as the obligor is held
and firmly bound. In the constitution of the United States, it is provided,
that no person held to service or labor in one state under the laws thereof,
escaping into another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but shall be delivered up
on the claim of the party to whom such service or labor may be due. Art. 4,
sec. 3, Sec. 3; 2 Serg. & R. 306; 3 Id. 4; 5 Id. 52; 1 Wash. C. C. R. 500; 2
Pick. 11; 16 Pet. 539, 674.
HOLDER. The holder of a bill of exchange is the person who is legally in the
possession of it, either by endorsement or delivery, or both, and entitled
to receive payment either from the drawee or acceptor, and is considered as
an assignee. 4 Dall. 53. And one who endorses a promissory note for
collection, as an agent, will be considered the holder for the purpose of
transmitting notices. 2 Hall, R. 112; 6 How. U. S. 248; 20 John. 372. Vide
Bill of Exchange.
HOLDING OVER. The act of keeping possession by the tenant, without the
consent of the landlord of premises which the latter, or those under whom he
claims, had leased to the former, after the term has expired.
2. When a proper notice has been given, this injury is remedied by,
ejectment, or, under local regulations, by summary proceedings. Vide 2
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Yeates' R. 523; 2 Serg. & Rawle, 486; 5 Binn. 228; 8 Serg. & Rawle, 459; 1
Binn. 334, a.; 5 Serg. & Rawle 174; 2 Serg. & Rawle, *50; 44 Rawle, 123.
HOLOGRAPH. What is written by one's own hand. The same as Olograph. Vide
Olograph.
HOMAGE, Eng. law. An acknowledgment made by the vassal in the presence of
his lord, that he is his man, that is, his subject or vassal. The form in
law French was, Jeo deveigne vostre home.
2. Homage was liege and feudal. The former was paid to the king, the
latter to the lord. Liege, was borrowed from the French, as Thaumas informs
us, and seems to have meant a service that was personal and inevitable.
Houard, Cout. Anglo Norman, tom. 1, p. 511; Beames; Glanville, 215, 216,
218, notes.
HOME PORT. The port where the owner of a ship resides; this is a relative
term.
HOMESTALL. The mansion-house.
HOMESTEAD. The place of the house or home place. Homestead farm does not
necessarily include all the parcels of land owned by the grantor, though
lying and occupied together. This depends upon the intention of the parties
when the term is mentioned in a deed, and is to be gathered from the
context. 7 N. H. Rep. 241; 15 John. R. 471. See Manor; Mansion.
HOMICIDE, crim. law. According to Blackstone, it is the killing of any human
creature. 4 Com. 177. This is the most extensive sense of this word, in
which the intention is not considered. But in a more limited sense, it is
always understood that the killing is by human agency, and Hawkins defines
it to be the killing of a man by a man. 1 Hawk. c. 8, s. 2. See Dalloz,
Dict. h.t. Homicide may perhaps be described to be the destruction of the
life of one human being, either by himself, or by the act, procurement, or
culpable omission of another. When the death has been intentionally caused
by the deceased himself, the offender is called felo de se; when it is
caused by another, it is justifiable, excusable, or felonious.
2. The person killed must have been born; the killing before birth is
balled foeticide. (q.v.)
3. The destruction of human life at any period after birth, is
homicide, however near it may be to extinction, from any other cause.
4.-1. Justifiable homicide is such as arises, 1st. From unavoidable
necessity, without any will, intention or desire, and without any
inadvertence in the party killing, and therefore without blame; as, for
instance, the execution, according to law, of a criminal who has been
lawfully sentenced to be hanged; or, 2d. It is committed for the advancement
of public justice; as if an officer, in the lawful execution of his office,
either in a civil or criminal case, should kill a person who assaults and
resists him. 4 Bl. Com. 178-1 80. See Justifiable Homicide.
5.-2. Excusable homicide is of two kinds 1st. Homicide per
infortunium. (q.v.) or, 2d. Se defendendo, or self defence. (q.v.) 4 Bl.
Com. 182, 3.
6.-3. Felonious homicide, which includes, 1. Self-murder, or suicide;
2. Man-slaughter, (q.v.); and, 3. Murder. (q.v.) Vide, generally, 3 Inst.
47 to 57; 1 Hale P. C. 411 to 602; 1 Hawk. c. 8; Fost. 255 to 837; 1 East,
P. C. 214 to 391; Com. Dig. Justices, L. M.; Bac. Ab. Murder and Homicide;
Burn's Just. h.t.; Williams' Just. h.t.; 2 Chit. Cr. Law, ch. 9; Cro. C.
C. 285 to 300; 4 Bl. Com. to 204; 1 Russ. Cr. 421 to 553; 2 Swift's Dig. 267
to 292.
HOMINE CAPTO IN WITHERNAM, Engl. law.. The name of a writ directed to the
sheriff, and commanding him to take one who has taken any bondsman, and
conveyed him out of the country, so that he cannot be replevied. Vide
Withernam; Thesaurus, Brev. 63.
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HOMINE ELIGENDO, English law. The name of a writ directed to a corporation,
requiring the members to make choice of a new man, to keep the one part of a
seal appointed for statutes merchant. Techn. Dict. h.t.
HOMINE REPLEGIANDO. When a man is unlawfully in custody, he may be restored
to his liberty by writ de homine replegiando, upon giving bail; or by a writ
of habeas, corpus, which is the more usual remedy. Vide Writ de homine
replegiando.
HOMO. This Latin word, in its most enlarged sense, includes both man and
woman. 2 Inst. 45. Vide Man.
HOMOLOGATION, civil law. Approbation, confirmation by a court of justice, a
judgment which orders the execution of some act; as, the approbation of an
award, and ordering execution on the same. Merl. Repert. h.t.; Civil Code
of Louis. Index, h.t.; Dig. 4, 8; 7 Toull. n. 224. To homologate, is to say
the like, similiter dicere. 9 Mart. L. R. 324.
HONESTY. That principle which requires us to give every one his due. Nul ne
doit slenrichir aux de ens du droit d'autrui.
2. The very object of social order is to promote honesty, and to
restrain dishonesty; to do justice and to prevent injustice. It is no less a
maxim of law than of religion, do unto others as you wish to be done by.
HONOR. High estimation. A testimony of high estimation. Dignity. Reputation.
Dignified respect of character springing from probity, principle, or moral
rectitude. A duel is not justified by any insult to our honor. Honor is also
employed to signify integrity in a judge, courage in a soldier, and chastity
in a woman. To deprive a woman of her honor is, in some cases, punished as a
public wrong, and by an action for the recovery of damages done to the
relative rights of a husband or a father. Vide Criminal conversation.
2. In England, when a peer of parliament is sitting judicially in that
body, his pledge of honor is received instead of an oath; and in courts of
equity, peers, peeresses, and lords of parliament, answer on their honor
only. But the courts of common law know no such distinction. It is needless
to add, that as we are not encumbered by a nobility, there is no such
distinction in the United States, all persons being equal in the eye of the
law.
HONOR, Eng. law. The seigniory of a lord paramount. 2 Bl. Com. 9f.
TO HONOR, contr. To accept a bill of exchange; to pay a bill accepted, or a
promissory note, on the day it becomes due. 7 Taunt. 164; 1 T. R. 172. Vide
To Dishonor.
HONORARIUM. A recompense for services rendered. It is usually applied only
to the recompense given to persons whose business is connected with science;
as the fee paid to counsel.
2. It is said this honorarium is purely voluntary, and differs from a
fee, which may be recovered by action. 5 Serg. & Rawle, 412; 3 Bl. Com. 28;
1 Chit. Rep. 38; 2 Atk. 332; but see 2 Penna. R. 75; 4 Watts' R. 334. Vide
Dalloz, Dict. h.t., and Salary. See Counsellor at law.
HORS DE SON FEE, pleading in the ancient English law. These words signify
out of his fee. A plea which was pleaded, when a person who pretended to be
the lord, brought an action for rent services, as issuing out of his land:
because if the defendant could prove the land was out of his fee, the action
failed. Vide 9 Rep. 30; 2 Mod. 104; 1 Danvers' Ab. 655; Vin. Ab. h.t.
HORSE. Until a horse has attained the age of four years, he is called a
colt. (q.v.) Russ. & Ry. 416. This word is sometimes used as a generic name
for all animals of the horse kind. 3 Brev. 9. Vide Colt; Gender; and Yelv.
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67, a.
HOSTAGE. A person delivered into the possession of a public enemy in the
time of war, as a security for the performance of a contract entered into
between the belligerents.
2. Hostages are frequently given as a security for the payment of a
ransom bill, and if they should die, their death would not discharge the
contract. 3 Burr. 1734; 1 Kent, Com. 106; Dane's Ab. Index, h.t.
HOSTELLAGIUM, Engl. law. A right reserved to the lords to be lodged and
entertained in the houses of their tenants.
HOSTILITY. A state of open enmity; open war. Wolff, Dr. de la Rat. Sec.
1191. Hostility, as it regards individuals, may be permanent or temporary;
it is permanent when the individual is a citizen or subject of the
government at war, and temporary when he happens to be domiciliated or
resident in the country of one of the belligerents; in this latter case the
individual may throw off the national character he has thus acquired by
residence, when he puts himself in motion, bona fide, to quit the country
sine animo revertendi. 3 Rob. Adm. Rep. 12; 3 Wheat. R. 14.
2. There may be a hostile character merely as to commercial purposes,
and hostility may attach only to the person as a temporary enemy, or it may
attach only to the property of a particular description. This hostile
character in a commercial view, or one limited to certain intents and
purposes only, will attach in, consequence of having possessions in the
territory of the enemy, or by maintaining a commercial establishment there,
or by a personal residence, or, by particular modes of traffic, as by
sailing under the enemy's flag of passport. 9 Cranch, 191 5 Rob. Adm. Rep.
21, 161; 1 Kent Com. 73; Wesk. on Ins. h.t.; Chit. Law of Nat. Index, h.t.
HOTCHPOT, estates. This homely term is used figuratively to signify the
blending and mixing property belonging to different persons, in order to
divide it equally among those entitled to it. For example, if a man seised
of thirty acres of land, and having two children, should, on the marriage of
one of them, give him ten acres of it, and then die intestate seised of the
remaining twenty; now, in order to obtain his portion of the latter, the
married child, must bring back the ten acres he received, and add it to his
father's estate, when an equal division of the whole will take place, and
each be entitled to fifteen acres. 2 Bl. Com. 190. The term hotchpot is also
applied to bringing together all the personal estate of the deceased, with
the advancements he has made to his children, in order that the same may be
divided agreeably to the provisions of the statute for the distribution of
intestate's estates. In bringing an advancement into hotchpot, the donee is
not required to account for the profits of the thing given; for example, he
is not required to bring into hotchpot the produce of negroes, nor the
interest of money. The property must be accounted for at its value when
given. 1 Wash. R. 224; 17 Mass. 358; 2 Desaus. 127.; 3 Rand. R. 117; 3 Pick.
R. 450; 3 Rand. 559; Coop. Justin. 575.
2. In Louisiana the term collation is used instead of hotchpot. The
collation of goods is the supposed or real return to the mass of the
succession, which an heir makes of property which he received in advance of
his share or otherwise, in order that such property maybe divided, together
with the other effects of the succession. Civ. Code of Lo. art. 1305; and
vide from that article to article 1367. Vide, generally, Bac. Ab.
Coparceners, E; Bac. Ab. Executors, &c., K; Com. Dig. Guardian, G 2,
Parcener, C 4; 8 Com. Dig. App. tit. Distribution, Statute of, III. For the
French law, see Merl. Repert. mots Rapport a succession.
HOUR measure of time. The space of sixty minutes, or the twenty-fourth part
of a natural day. Vide Date; Fraction; and Co. Litt. 135; 3 Chit. Pr. 110.
HOUSE, estates. A place for the habitation and dwelling of man. This word
has several significations, as it is applied to different things. In a grant
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or demise of a house, the curtilage and garden will pass, even without the
words "with the appurtenances," being added. Cro. Eliz. 89; S. C.; 3 Leon.
214; 1 Plowd. 171; 2 Saund. 401 note 2; 4 Penn. St. R; 93.
2. In a grant or demise of a house with the appurtenances, no more, will
pass, although other lands have been occupied with the house. 1 P. Wms. 603;
Cro. Jac. 526; 2 Co. 32; Co. Litt. 5 d.; Id. 36 a. b.; 2 Saund. 401, note 2.
3. If a house, originally entire, be divided into several apartments,
with an outer door to each apartment and no communication with each other
subsists, in such case the several apartments are considered as distinct
houses. 6 Mod. 214; Woodf. Land. & Ten. 178.
4. In cases of burglary, the mansion or dwelling-house in which the
burglary might be committed, at common law includes the outhouses, though
not under the same roof or adjoining to the dwelling-house provided they
were within the curtilage, or common fence, as the dwelling or mansion
house. 3 Inst. 64; 1 Hale, 558; 4 Bl. Com. 225; 2 East, P. C. 493; 1 Hayw.
N. C. Rep. 102, 142; 2 Russ. on Cr. 14.
5. The term house, in case of arson, includes not only the dwelling but
all the outhouses, as in the case of burglary. It is a maxim in law that
every man's house is his castle, and there he is entitled to perfect
security; this asylum cannot therefore be legally invaded, unless by an
officer duly authorized by legal process; and this process must be of a
criminal nature to authorize the breaking of an outer door; and even with
it, this cannot be done, until after demand of admittance and refusal. 5 Co.
93; 4 Leon. 41; T. Jones, 234. The house may be also broken for the purpose
of executing a writ of habere facias. 5 Co. 93; Bac. Ab. Sheriff, N 3.
6. The house protects the owner from the service of all civil process
in the first instance, but not if he is once lawfully arrested and he takes
refuge in his own house; in that case, the officer may pursue him and break
open any door for the purpose. Foster, 320; 1 Rolle, R. 138; Cro. Jac. 555;
Bac. Ab. ubi sup. In the civil law the rule was nemo de domo sua extrahi
debet. Dig. 50, 17, 103. Vide, generally, 14 Vin. Ab. 315; Yelv. 29 a, n. 1;
4 Rawle, R. 342; Arch. Cr. Pl. 251; and Burglary.
7. House is used figuratively to signify a collection of persons, as
the house of representatives; or an institution, as the house of refuge; or
a commercial firm, as the house of A B & Co. of New Orleans; or a family,
as, the house of Lancaster, the house of York.
HOUSE OF COMMONS, Eng. law. The representatives of the people, in
contradistinction to the nobles, taken collectively are called the house of
commons.
2. This house must give its consent to all bills before they acquire
the authority of law, and all laws for raising revenue must originate there.
I.
IBIDEM. This word is used in references, when it is intended to say that a
thing is to be found in the same place, or that the reference has for its
object the same thing, case, or other matter. IOU, contracts. The memorandum
IOU, (I owe you), given by merchants to each other, is a mere evidence of
the debt, and does not amount to a promissory note. Esp. Cas. N. A. 426; 4
Carr. & Payne, 324; 19 Eng. Com. L. Rep. 405; 1 Man. & Gran. 46; 39 E. C. L.
R. 346; 1 Campb. 499; 1 Esp. R. 426; 1 Man. Gr. & So. 543; Dowl. & R. N. P.
Cas. 8.
ICTUS ORBIS, med. jurisp. A maim, a bruise, or swelling; any hurt without
cutting the skin. When the skin is cut, the injury is called a wound. (q.v.)
Bract. lib. 2, tr. 2, c. 5 and 24.
2. Ictus is often used by medical authors in the sense of percussus. It
is applied to the pulsation of the arteries, to any external lesion of the
body produced by violence also to the wound inflicted by a scorpion or
venomous reptile. Orbis is used in the sense of circlo, circuit, rotundity.
It is applied also to the eye balls. Oculi dicuntur orbes. Castelli Lexicon
Medicum.
IDES, NONES and CALENDS, civil law. This mode of computing time, formerly in
use among the Romans, is yet used in several chanceries in, Europe,
particularly in that of the pope. Many ancient instruments bear these dates;
it is therefore proper to notice them here. These three words designate all
the days of the month.
2. The calends were the first day of every month, and were known by
adding the names of the months; as calendis januarii, calendis februarii,
for the first days of the months of January and February. They designated
the following days by those before the nones. The fifth day of each month,
except those of March, May, July, and October; in those four months the
nones indicated the seventh day; nonis martii, was therefore the seventh day
of March, and so of the rest. In those months in which the nones indicated
the fifth day, the second was called quarto nonas or 4 nonas, that is to
say, quarto die ante nonas, the fourth day before the nones. The words die
and ante, being understood, were usually suppressed. The third day of each
of those eight months was called tertio, or 3 nonas. The fourth, was pridie
or 2 nonas; and the fifth was nonas. In the months of March, May, July and
October, the second day of the months was called sexto or 6 nonas; the
third, quinto, or 5 nonas; the fourth, quarto, or 4 nonas; the fifth,
tertio, or 3 nonas; the sixth, pridie, usually abridged prid. or pr. or 2
nonas; and the seventh, nones. The word nonae is so applied, it is said,
because it indicates the ninth day before the ides of each month.
3. In the months of March, May, July and October, the fifteenth day of
the months was the Ides. These are the four mouths, as above mentioned, in
which the nones were on the seventh day. In the other eight months of the
year the nones were the fifth of the month, and the ides the thirteenth in
each of them the ides indicated the ninth day after the nones. The seven
days between the nones and the ides, which we count 8, 9, 10, 11, 12, 13,
and 14, in March, May, July and October, the Romans counted octave, or 8
idus; septimo, or 7 idus; sexto, or 6 idus; quinto, or 5 idus; quarto, or 4
idus; tertio, or 3 idus; pridie, or 2, idus; the word ante being understood
as mentioned above. As to the other eight mouths of the year, in which the
nones indicated the fifth day of the month, instead of our 6, 7, 8, 9, 10,
11, and 12, the Romans counted octavo idus, septimo, &c. The word is said to
be derived from the Tuscan, iduare, in Latin dividere, to divide, because
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the day of ides divided the month into equal parts. The days from the ides
to the end of the month were computed as follows; for example, the
fourteenth day of January, which was the next day after the ides, was called
decimo nono, or 19 kalendas, or ante kalendas febrarii; the fifteenth,
decimo octavo, or 18 kalendas februarii, and so of the rest. Counting in a,
retrograde manner to pridie or 2 kalendas februarii, which was the thirty-
first day of January.
4. As in some months the ides indicate the thirteenth, and in some the
fifteenth of the month, and as the months have not an equal number of days,
it follows that the decimo nono or 19 kalendas did not always happen to be
the next day after the Ides, this was the case only in the months of
January, August and December. Decimo sexto or the 16th in February; decimo
septimo or 17, March, May, July and October; decimo octave or 18, in April,
June, September, and November. Merlin, Repertoire de Jurisprudence, mots
Ides, Nones et Calendes.
A Table of the Calends of the Nones and the Ides.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Jan., Aug., Dec. ³ March, May, ³ April, June, ³ February 28,
31 days. ³ July, Oct., ³ Sept., Nov., ³ bissextile,
³ 31 days. ³ 30 days. ³ 29 days.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
1 ³ Calendis. ³ Calendis ³ Calendis ³ Calendis
2 ³ 4 Nonas. ³ 6 Nonas ³ 4 Nonas ³ 4 Nonas
3 ³ 3 Nonas. ³ 5 Nonas ³ 3 Nonas ³ 3 Nonas
4 ³ Prid. Non. ³ 4 Nonas ³ Prid. Non. ³ Prid. Non.
5 ³ Nonis ³ 3 Nonas ³ Nonis ³ Nonis
6 ³ 8 Idus ³ Prid. Non. ³ 8 Idus ³ 8 Idus
7 ³ 7 Idus ³ Nonis ³ 7 Idus ³ 7 Idus
8 ³ 6 Idus ³ 8 Idus ³ 6 Idus ³ 6 Idus
9 ³ 5 Idus ³ 7 Idus ³ 5 Idus ³ 5 Idus
10 ³ 4 Idus ³ 6 Idus ³ 4 Idus ³ 4 Idus
11 ³ 3 Idus ³ 5 Idus ³ 3 Idus ³ 3 Idus
12 ³ Prid. Idus ³ 4 Idus ³ Prid. Idus ³ Prid. Idus
18 ³ Idibus ³ 3 Idus ³ Idibus ³ Idibus
14 ³ 19 Cal. ³ Prid. Idus ³ 18 Cal. ³ 16 Cal.
15 ³ 18 Cal. ³ Idibus ³ 17 Cal. ³ 15 Cal.
16 ³ 17 Cal. ³ 17 Cal. ³ 16 Cal. ³ 14 Cal.
17 ³ 16 Cal. ³ 16 Cal. ³ 15 Cal. ³ 3 Cal.
18 ³ 15 Cal. ³ 15 Cal. ³ 14 Cal. ³ 12 Cal.
19 ³ 14 Cal. ³ 14 Cal. ³ 13 Cal. ³ 11 Cal.
20 ³ 18 Cal. ³ 13 Cal. ³ 12 Cal. ³ 10 Cal.
21 ³ 12 Cal. ³ 12 Cal. ³ 11 Cal. ³ 9 Cal.
22 ³ 11 Cal. ³ 11 Cal. ³ 10 Cal. ³ 8 Cal.
23 ³ 10 Cal. ³ 10 Cal. ³ 9 Cal. ³ 7 Cal.
24 ³ 9 Cal. ³ 9 Cal. ³ 8 Cal. ³ 6 Cal.*
25 ³ 8 Cal. ³ 9 Cal. ³ 7 Cal. ³ 5 Cal.
26 ³ 7 Cal. ³ 7 Cal. ³ 6 Cal. ³ 4 Cal.
27 ³ 6 Cal. ³ 6 Cal. ³ 5 Cal. ³ 3 Cal.
28 ³ 5 Cal. ³ 5 Cal. ³ 4 Cal. ³ Prid. Cal.
29 ³ 4 Cal. ³ 4 Cal. ³ 3 Cal. ³
30 ³ 3 Cal. ³ 3 Cal. ³ Prid. Cal. ³
31 ³ Prid. Cal. ³ Prid. Cal. ³ ³
* If February is bissextile, Sexto Calencas (6 Cal.) it is counted twice,
viz: for the 24th and 25th of the month, hence the word bissextile.
IDIOCY, med. jur. That condition of mind, in which the reflective, or all or
a part of the affective powers, are either entirely wanting, or are
manifested to the least possible extent.
2. Idiocy generally depends upon organic defects. The most striking
physical trait, and one seldom wanting, is the diminutive size of the head,
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particularly of the anterior superior portions, indicating a deficiency of
the anterior lobes of the brain. According to Gall, whose observations on
this subject are entitled to great consideration, its circumference,
measured immediately over the orbiter arch, and the most prominent part of
the occipital bone, is between 11« and 14« inches. Gall, sur les Fonctions,
p. 329. In the intelligent adult, it usually measures from 21 to 22 inches.
Chit. Med. Jur. 248. See, on this subject, the learned work of Dr. Morton,
of Philadelphia*, entitled Crania Americana. The brain of an idiot equals
that of a new born infant; that is, about one-fourth, one-fifth, or one-
sixth of the cerebral mass of an adult's in the enjoyment of his faculties.
The above is the only constant character. observed in the heads of idiots.
In other respects their forms are as various as those of other persons. When
idiocy supervenes in early infancy, the head is sometime remarkable for
immense size. This unnatural enlargement arises from some kind of morbid
action preventing the development of the cerebral mass, and producing serous
cysts, dropsical effusions, and the like.
3. In idiocy the features are irregular; the forehead low, retreating,
and narrowed to a point; the eyes are unsteady, and often squint the lips
are. thick, and the mouth is generally open; the gums are spongy, and the
teeth are defective; the limbs are crooked and feeble. The senses are
usually entirely wanting; many are deaf and dumb, or blind and others are
incapable of perceiving odors, and show little or no discrimination in their
food for want of taste. Their movements are constrained and awkward, they
walk badly, and easily fall, and are not less awkward with their hands,
dropping generally what is given to them. They are seldom able to articulate
beyond a few sounds. They are generally affected with rickets, epilepsy,
scrofula, or paralysis. Its subjects seldom live beyond the twenty-fifth
year, and are incurable, as there is natural deformity which cannot be
remedied. Vide Chit. Med. Jur. 345; Ray's Med. Jur. c. 2; 1 Beck's Med. Jur.
571 Shelf. on Lun. Index, h.t.; and Idiot.
IDIOT, Persons. A person who has been without understanding from his
nativity, and whom the law, therefore, presumes never likely to attain any.
Shelf. on Lun. 2.
2. It is an imbecility or sterility of mind, and not a perversion of
the understanding. Chit. Med. Jur. 345, 327, note s; 1 Russ. on Cr. 6; Bac.
Ab. h.t. A; Bro. Ab. h.t.; Co. Litt. 246, 247; 3 Mod. 44; 1 Vern. 16; 4
Rep. 126; 1 Bl. Com. 302. When a man cannot count or number twenty, nor tell
his father's or mother's name, nor how old he is, having been frequently
told of it, it is a fair presumption that, he is devoid of understanding. F.
N. B. 233. Vide 1 Dow, P. C. now series, 392; S. C. 3 Bligh, R. new series,
1. Persons born deaf, dumb, and blind, are, presumed to be idiots, for the
senses being the only inlets of knowledge, and these, the most important of
them, being closed, all ideas and associations belonging to them are totally
excluded from their minds. Co. Litt. 42 Shelf. on Lun. 3. But this is a mere
presumption, which, like most others, may be rebutted; and doubtless a
person born deaf, dumb, and blind, who could be taught to read and write,
would not be considered an idiot. A remarkable instance of such an one may
be found in the person of Laura Bridgman, who has been taught how to
converse and even to write. This young woman was, in the year 1848, at
school at South Boston. Vide Locke on Human Understanding, B. 2 c. 11, Sec.
12, 13; Ayliffe's Pand. 234; 4 Com. Dig. 610; 8 Com. Dig. 644.
3. Idiots are incapable of committing crimes, or entering into
contracts. They cannot of course make a will; but they may acquire property
by descent.
Vide, generally, 1 Dow's Parl. Cas. new series, 392; 3 Bligh's R. 1; 19
Ves. 286, 352, 353; Stock on the Law of Non Compotes Mentis; Bouv. Inst.
Index, h.t.
IDIOTA INQUIRENDO, WRIT DE. This is the name of an old writ which directs
the sheriff to inquire whether a man be an idiot or not. The inquisition is
to be made by a jury of twelve men. Fitz. N. B. 232.
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IDLENESS. The refusal or neglect to engage in any lawful employment, in
order to gain a livelihood.
2. The vagrant act of 17 G. II. c. 5, which, with some modifications,
has been adopted, in perhaps most of the states, describes idle persons to
be those who, not having wherewith to maintain themselves, live idle,
without employment, and refuse to work for the usual and common, wages.
These are punishable according to the different police regulations, with
fine and imprisonment. In Pennsylvania, vagrancy is punished, on a
conviction before a magistrate, with imprisonment for one mouth.
IGNIS JUDICIUM, Eng. law. The name of the old judicial trial by fire.
IGNOMINY. Public disgrace, infamy, reproach, dishonor. Ignominy is the
opposite of esteem. Wolff, Sec. 145. See Infamy.
IGNORAMUS, practice. We are ignorant. This word, which in law means we are
uninformed, is written on a bill by a grand jury, when they find that there
is not sufficient evidence to authorize their finding it a true bill.
Sometimes, instead of using this word, the grand jury endorse on the bill,
"Not found." 4 Bl. Com. 305. Vide Grand Jury.
IGNORANCE. The want of knowledge.
2. Ignorance is distinguishable from error. Ignorance is want of
knowledge; error is the non-conformity or opposition of our ideas to the
truth. Considered as a motive of our actions, ignorance differs but little
from error. They are generally found together, and what is said of one is
said of both.
3. Ignorance and error, are of several kinds. 1. When considered as to
their object, they are of law and of fact. 2. When examined as to their
origin, they are voluntary or involuntary, 3. When viewed with regard to
their influence on the affairs of men, they are essential or non-essential.
4.-1. Ignorance of law and fact. 1. Ignorance of law, consists in the
want of knowledge of those laws which it is our duty to understand, and
which every man is presumed to know. The law forbids any one to marry a
woman whose husband is living. If any man, then, imagined he could marry
such a woman, he would be ignorant of the law; and, if he married her, he
would commit an error as to a matter of law. How far a party is bound to
fulfill a promise to pay, upon a supposed liability, and in ignorance of the
law, see 12 East, R. 38; 2 Jac. & Walk. 263; 5 Taunt. R. 143; 3 B. & Cresw.
R. 280; 1 John. Ch. R. 512, 516; 6 John. Ch. R. 166; 9 Cowen's R. 674; 4
Mass. R. 342; 7 Mass. R. 452; 7 Mass. R. 488; 9 Pick. R. 112; 1 Binn. R. 27.
And whether he can be relieved from a contract entered into in ignorance or
mistake of the law. 1 Atk. 591; 1 Ves. & Bea. 23, 30; 1 Chan. Cas. 84; 2
Vern. 243; 1 John. Ch. R. 512; 2 John. Ch. R. 51; 1 Pet. S. C. R. 1; 6 John.
Ch. R. 169, 170; 8 Wheat. R. 174; 2 Mason, R. 244, 342.
5.-2. Ignorance of fact, is the want of knowledge as to the fact in
question. It would be an error resulting from ignorance of a fact, if a man
believed a certain woman to be unmarried and free, when in fact, she was a
married woman; and were he to marry her under that belief, he would not be
criminally responsible. Ignorance of the laws of a foreign government, or of
another state; is ignorance of a fact. 9 Pick. 112. Vide, for the difference
between ignorance of law and ignorance of fact, 9 Pick. R. 112; Clef. des
Lois Rom. mot Fait; Dig. 22, 6, 7.
6.-2. Ignorance is either voluntary or involuntary. 1. It is
voluntary when a party might, by taking reasonable pains, have acquired the
necessary knowledge. For example, every man might acquire a knowledge of the
laws which have been promulgated, a neglect to become acquainted with them
is therefore voluntary ignorance. Doct. & St. 1, 46; Plowd. 343.
7.-2. Involuntary ignorance is that which does not proceed from
choice, and which cannot be overcome by the use of any means of knowledge
known to him and within his power; as, the ignorance of a law which has not
yet been promulgated.
8.-3. Ignorance is either essential or non-essential. 1. By essential
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ignorance is understood that which has for its object some essential
circumstance so intimately connected with the: matter in question, and which
so influences the parties that it induces them to act in the business. For
example, if A should sell his horse to B, and at the time of the sale the
horse was dead, unknown to the parties, the fact of the death would render
the sale void. Poth. Vente, n. 3 and 4; 2 Kent, Com. 367.
9.-2. Non-essential or accidental ignorance is that which has not of
itself any necessary connexion with the business in question, and which is
not the true consideration for entering into the contract; as, if a man
should marry a woman whom he believed to be rich, and she proved to be poor,
this fact would not be essential, and the marriage would therefore be good.
Vide, generally, Ed. Inj. 7; 1 Johns. h. R. 512; 2 Johns. Ch. R. 41; S. C.
14 Johns. R 501; Dougl. 467; 2 East, R. 469; 1 Campb. 134: 5 Taunt. 379; 3
M. & S. 378; 12 East, R. 38; 1 Vern. 243; 3 P. Wms. 127, n.; 1 Bro. C. C.
92; 10 Ves. 406; 2 Madd. R. 163; 1 V. & B. 80; 2 Atk. 112, 591; 3 P. Wms.
315; Mos. 364; Doct. & Stud. Dial. 1, c. 26, p. 92; Id. Dial. 2, ch. 46, p.
303; 2 East, R. 469; 12 East, R. 38; 1 Fonb. Eq. B. 1, ch. 2, Sec. 7, note
v; 8 Wheat. R. 174; S. C. 1 Pet. S. C. R. 1; 1 Chan. Cas. 84; 1 Story, Eq.
Jur. Sec. 137, note 1; Dig. 22, 6; Code, 1, 16; Clef des Lois Rom. h.t.;
Merl. Repert. h.t.; 3 Sav. Dr. Rom. Appendice viii., pp. 337 to 444.
ILL FAME. This is a technical expression, that which means not only bad
character as generally understood, but every person, whatever may be his
conduct and character in life, who visits bawdy houses, gaming houses, and
other places which are of ill fame, is a person of ill fame. 1 Rogers'
Recorder, 67; Ayl. Par. 276; 2 Hill, 558; 17 Pick. 80; 1 Hagg. Eccl. R. 720;
2 Hagg. Cons. R. 24; 1 Hagg. Cons. R. 302, 303; 1 Hagg. Eccl. R. 767; 2
Greenl. Ev. Sec. 44.
ILLEGAL. Contrary to law; unlawful.
2. It is a general rule, that the law will never give its aid to a
party who has entered into an illegal contract, whether the same be in
direct violation of a statute, against public policy, or opposed to public
morals. Nor to a contract which is fraudulent, which affects the defendant
or a third person.
3. A contract in violation of a statute is absolutely void, and,
however disguised, it will be set aside, for no form of expression can
remove the substantial defect inherent in the nature of the transaction; the
courts will investigate the real object of the contracting parties, and if
that be repugnant to the law, it will vitiate the transaction.
4. Contracts against the public policy of the law, are equally void as
if they were in violation of a public statute; a contract not to marry any
one, is therefore illegal and void. See Void.
5. A contract against the purity of manners is also illegal; as, for
example, a agreement to cohabit unlawfully with another, is therefore void;
but a bond given for past cohabitation, being considered as remuneration for
past injury, is binding. 4 Bouv. Inst. n. 3853.
6. All contracts which have for their object, or which may in their
consequences, be injurious to third persons, altogether unconnected with
them, are in general illegal and void. Of the first, an example may be found
in the case where a sheriff's officer received a sum of money from a
defendant for admitting to bail, and agreed to pay the bail, part of the
money which was so exacted. 2 Burr. 924. The case of a wager between two
persons, as to the character of a third, is an example of the second class.
Cowp. 729; 4 Camp. 152; 1 Rawle, 42; 1 B. & A. 683. Vide Illicit; Unlawful.
ILLEGITIMATE. That which is contrary to law; it is usually applied to
children born out of lawful wedlock. A bastard is sometimes called an
illegitimate child.
ILLEVIABLE. A debt or duty that cannot or ought not to be levied. Nihil set
upon a debt is a mark for illeviable.
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ILLICIT. What is unlawful what is forbidden by the law. Vide Unlawful.
2. This word is frequently used in policies of insurance, where the
assured warrants against illicit trade. By illicit trade is understood that
"which is made unlawful by the laws of the country to which the object is
bound." The assured having entered into this warranty, is required to do no
act which will expose the vessel to be legally condemned. 2 L. R. 337, 338.
Vide Insurance; Trade; Warranty.
ILLICITE. Unlawfully.
2. This word has a technical meaning, and is requisite in an indictment
where the act charged is unlawful; as, in the case of a riot. 2 Hawk. P. C.
25, Sec. 96.
ILLINOIS. The name of one of the United States of America. This state was
admitted into the Union by virtue of a "Resolution declaring the admission
of the state of Illinois into the Union," passed December 3, 1818, in the
following words: Resolved, &c. That, whereas, in pursuance of an Act of
Congress, passed on the eighteenth day of April, one thousand eight hundred
and eighteen, entitled "An act to enable the people of the Illinois
territory to form a constitution and state government, and for the admission
of such state into the Union, on an equal footing with the original states,"
the people of said territory did, on the twenty-sixth day of August, in the
present year, by a convention called for that purpose, form for themselves a
constitution and state government, which constitution and state government,
so formed, is republican, and in conformity to the principles of the
articles of compact between the original states and the people and States in
the territory northwest of the river Ohio, passed on the thirteenth day of
July, one thousand seven hundred and eighty-seven: Resolved, &c. That the
state of Illinois shall be one, and is hereby declared to be one, of the
United States of America, and admitted into the Union on an equal footing
with the original states, in all respects whatever.
2. A constitution for this state, was adopted in convention held at
Kaskaskia, on the 26th day of August, 1818, which continued in force until
the first day of April; 1848. A convention to revise the constitution
assembled at Springfield, June 7, 1847, in pursuance of an act of the
general assembly of the state of Illinois, entitled "An act to provide for
the call of a convention: On the first day of August, 1848, this convention
adopted a constitution of the state of Illinois, and by the 13th section of
the schedule thereof it provided that this constitution shall be the supreme
law of the land from and after the first day of April, A. D. 1848.
3. It will be proper to consider, 1. The rights of citizens to vote at
elections. 2. The distribution of the powers of government.
4.-1. The sixth article directs that, Sec. 1. In all elections, every
white male citizen above the age of twenty-one years, having resided in the
state one year next preceding any election, shall be entitled to vote at
such election; and every white male inhabitant of the age aforesaid, who may
be a resident of the state' at the time of the adoption of this
constitution, shall have the right of voting as aforesaid; but no such
citizen or inhabitant shall be entitled to vote, except in the district or
county in which he Shall actually reside lit the time of such election.
Sec. 2. All votes shall be given by ballot.
Sec. 5. No elector loses his residence in the state by reason of his
absence on business of the United States, or this state.
Sec. 6. No soldier, seaman or mariner of the United States, is deemed a
resident of the state, in consequence of being stationed within the state.
5. The second article distributes the powers of the government as
follows:
Sec. 1. The powers of the government of the state of Illinois shall be
divided into three distinct departments, and each of them be confided to a
separate body of magistracy, to wit: Those which are legislative, to one;
those which are executive, to another; and those which are judicial, to
another.
2. No person, or collection of persons, being one of these departments,
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shall exercise any power properly belonging to either of, the others, except
as hereinafter expressly directed or permitted; and all acts in
contravention of this section shall be void. These will be separately
considered.
6. The legislative department will be considered by taking a view, 1.
Of those parts of the constitution which relate to the general assembly. 2.
Of the senate. 3. Of the house of representatives.
7.-1st. Of the general assembly. The third article of the
constitution provides as follows
Sec. 1. The legislative authority of this state shall be vested in a
general assembly; which shall consist of a senate and house of
representatives, both to be elected by the people.
Sec. 2. The first election for senators and representatives shall be
held on the Tuesday after the first Monday in November, one thousand eight
hundred and forty-eight; and thereafter, elections for members of the
general assembly shall be held once in two years, on the Tuesday next after
the first Monday in November, in each and every county, at such places
therein as may be provided by law.
Sec. 7. No person elected to the general assembly shall receive any
civil
appointment within this state, or to the senate of the United States, from
the governor, the governor and senate, or from the general assembly, during
the term for which he shall have been elected; and all such appointments,
and all votes given for any such member for any such office or appointment,
shall be void; nor shall any member of the general assembly be interested,
either directly or indirectly, in any contract with the state, or any county
thereof, authorized by any law passed during the time for which he shall
have been elected, or during one year after the expiration thereof.
Sec. 12. The senate and house of representatives, when assembled, shall
each choose a speaker and other officers, (the speaker of the senate
excepted.) Each house shall judge of the qualifications and election of its
own members, and sit upon its own adjournments. Two-thirds of each house
shall constitute a quorum but a smaller number may adjourn from day to day,
and compel the attendance of absent members.
Sec. 13. Each house shall keep a journal of its proceedings, and
publish them. The yeas and nays of the members on any question shall, at the
desire of any two of them, be entered on the journals.
Sec. 14. Any two members of either house shall have liberty to dissent
and protest against any act or resolution which they may think injurious to
the public, or to any individual, and have the reasons of their dissent
entered on the journals.
Sec. 15. Each house may determine the rules of its proceedings, punish
its members for disorderly behaviour, and, with the concurrence of two-
thirds of all the members elected, expel a member, but not a second time for
the same cause; and the reason for such expulsion shall be entered upon the
journal, with the names of the members voting on the question.
Sec. 16. When vacancies shall happen in either house, the governor, or
the person exercising the powers of governor, shall issue writs of election
to fill such vacancies.
Sec. 17. Senators and representatives shall, in all cases, except
treason, felony or breach of the peace, be privileged from arrest during the
session of the general assembly, and in going to and returning from the same
and for any speech or debate in either house, they shall not be questioned
in any other place.
Sec. 18. Each house may punish, by imprisonment during its session, any
person, not a member, who shall be guilty of disrespect to the house, by any
disorderly or contemptuous behaviour in their presence: Provided, such
imprisonment shall not, at any one time, exceed twenty-four hours.
Sec. 19. The doors of each house, and of committees of the whole, shall
be kept open, except in such cases as in the opinion of the house require
secrecy. Neither house shall, without the consent of the other, adjourn for
more than two days, nor to any other place than that in which the two houses
shall be sitting.
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8.-2d. Of the senate. The senate will be considered by taking a view
of, 1. The qualification of senators. 2. Their election. 3. By whom elected.
4. When elected. 5. Number of senators. 6. The duration of their office.
9. First. Art. 3, s. 4, of the Constitution, directs that "No person
shall be a senator who shall not have attained the age of thirty years; who
shall not be a citizen of the United States, five years an inhabitant of
this state, and one year in the county or district in which he shall be
chosen, immediately preceding his election, if such county or district shall
have been so long erected; but if not, then within the limits of the county
or counties, district or districts, out of which the same shall have been
taken unless he shall have been absent on the public business of the United
States, or of this state, and shall not, moreover, have paid a state or
county tax."
10. Secondly. The senators at their first session herein provided for,
shall be divided by lot, as near as can be, into two classes. The seats of
the first class shall be vacated at the expiration of the second year, and
those of the second class at the expiration of the fourth year; so that one-
half thereof, as near as possible, may be biennially chosen forever
thereafter. Art. 31 s. 5.
11. Thirdly. The senators are elected by the people.
12. Fourthly. The first election shall be held on the Tuesday after the
first Monday in November, 1848; and thereafter the elections shall be on the
Tuesday after the first Monday in November, once in two years. Art. 3, s. 2.
13. Fifthly. The senate shall consist of twenty-five members, and the
house of representatives shall consist of seventy-five members, until the
population of the state shall amount to one million. of souls, when five
members may be added to the house, and five additional members for every
five hundred thousand inhabitants thereafter, until the whole number of
representatives shall amount to one hundred; after which, the number shall
neither be increased nor diminished; to be apportioned among the several
counties according to the number of white inhabitants. In all future
apportionments, where more than one county shall be thrown into a
representative district, all the representatives to which said counties may
be entitled shall be elected by the entire district. Art. 3, s. 6.
14. Sixthly. The senators at their first session herein provided for
shall be divided by lot, as near as can be, into two classes. The seats of
the first class shall be vacated at the expiration of the second year, and
those of the second class at the expiration of the fourth year, so that one-
half thereof, as near as possible, may be biennially chosen forever
thereafter. Art. 3, s. 5.
15.-3. The house of representatives. This will be considered in the
same order which has been observed in relation to the senate.
16. First. No person shall be a representative who shall not have
attained the age of twenty-five years; who shall not be a citizen of the
United States, and three years an inhabitant of this state; who shall not
have resided within the limits of the county or district in which he shall
be chosen twelve months next preceding his election, if such county or
district shall have been so long erected; but if not, then within the limits
of the county or counties, district or districts, out of which the same
shall have been taken, unless he shall have been absent on the public
business of the United States, or of this state; and who, moreover, shall
not have paid a state or county tax. Art. 3, s. 3.
17. Secondly. They are elected biennially.
18. Thirdly. Representatives are elected by the people.
19. Fourthly. Representatives are elected at the same time that senators
are elected.
20. Fifthly. The house of representatives shall consist of seventy-five
members. See ante, No. 16.
21. Sixthly. Their office continues for two years.
22.-2. The executive department. The executive power is vested in a
governor. Art. 4, s. 1. It will be proper to consider, 1. His
qualifications. 2. His election: 3. The duration of his office. 4. His
authority and duty.
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23. First. No person except a citizen of the United States shall be
eligible to the office of governor, nor shall any person be eligible to that
office who shall not have attained the age of thirty-five years, and been
ten years a resident of this state; and fourteen years a citizen of the
United States. Art. 4 s. 4.
24. Secondly. His election is to be on the Tuesday next after the first
Monday in November. The first election in 1848, and every fourth year
afterwards.
25. Thirdly. He remains in office for four years. The first governor is
to be installed on the first Monday of January, 1849, and the others every
fourth; year thereafter.
26. Fourthly. His authority and duty. He may give information and
recommend measures to the legislature, grant reprieves, commutations and
pardons, except in cases of treason and impeachment, but in these cases he
may suspend execution of the sentence until the meeting of the legislature,
require information from the officers of the executive department, and take
care that the laws be faithfully executed; on extraordinary occasions,
convene the general assembly by proclamation by commander-in-chief of the
army and navy of the state, except when they shall be called into the
service of the United States; nominate, and, by and with the consent and
advice of the senate, appoint all officers whose offices are established by
the constitution, or which may be created by law, and whose appointments
are not otherwise provided for; in case of disagreement between the two
houses with respect to the time of adjournment, adjourn the general assembly
to such time as he thinks proper, provided it be not to a period beyond a
constitutional meeting of the same. Art. 4. He has also the veto power.
27. A lieutenant governor shall be chosen at every election of governor,
in the same manner, continue in office for the same time, and possess the
same qualifications. In voting for governor and lieutenant governor, the
electors shall distinguish whom they vote for as governor, and whom as
lieutenant-governor. Art. 4, s. 14. The following are his principal powers
and duties
Sec. 15. The lieutenant governor shall, by virtue of his office, be
speaker of the senate, have a right, when in committee of the whole, to
debate and vote on all subjects, and, whenever the senate are equally
divided, to give the casting vote.
Sec. 16. Whenever the government shall be administered by the
lieutenant-governor, or he shall be unable to attend as speaker of the
senate, the senators shall elect one of their own, number as speaker for
that occasion; and if, during the vacancy of the office of governor, the
lieutenant governor shall be impeached, removed from his office, refuse to
qualify, or resign, or die, or be absent from the state, the speaker of the
senate shall, in like manner, administer the government.
Sec. 17. The lieutenant governor, while he acts as speaker of the
senate, shall receive for his service the same compensation which, shall,
for the same period, be allowed to the speaker of the house of
representatives, and no more.
Sec. 18. If the lieutenant governor shall be called upon to administer
the government, and shall, while in such administration, resign, die, or be
absent from the state, during the recess of the general assembly, it shall
be the duty of the secretary of state, for the time being, to convene the
senate for the purpose of choosing a speaker.
Sec. 19. In case of the impeachment of the governor, his absence from
the, state, or inability to discharge the duties of his office, the powers,
duties, and emoluments of the office shall devolve upon the lieutenant
governor and in case of his death, resignation, or removal, then upon the
speaker of the senate for the time being, until the governor, absent or
impeached, shall return or be acquitted; or until the disqualification or
inability shall cease; or until a new governor shall be elected and
qualified.
Sec. 20. In case of a vacancy in the office of governor, for any other
cause than those herein enumerated, or in case of the death of the governor
elect before he is qualified, the powers, duties, and emoluments of the
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office devolve upon the lieutenant governor, or speaker of the senate, as
above provided, until a new governor be elected and qualified.
28.-3. The judiciary department. The judicial power is vested in one
supreme court, in circuit courts, in county courts, and in justices of the
peace; but inferior local courts, of civil and criminal jurisdiction, may be
established by the general assembly in the cities of the state but such
courts shall have a uniform organization and jurisdiction in such cities.
Art. 5, s. 1. These will be separately considered.
29.-1st. Of the supreme court, its organization and jurisdiction. 1.
Of its organization. 1st. The judges must be citizens of the United States;
have resided in the state five years previous to their respective elections;
and two years next preceding their election in the division, circuit, or
county in which they shall respectively be elected; and not be less than
thirty-five years of age at the time of their election. 2d. The judges are
elected each one in a particular district, by the people. But the
legislature may change the mode of election. 3d. The supreme court consists
of a chief justice and three associates, any two of whom form a quorum; and
a concurrence of two of said judges is necessary to a decision. 4th. They
hold their office for nine years. After the first election, the judges are
to draw by lot, and one is to go out of office in three, one in six, and the
other in nine years. And one judge is to be elected every third year. 2. Of
the jurisdiction of the supreme court. This court has original jurisdiction
in cases relative to the, revenue, in cases of mandamus, habeas corpus, and
in such cases of impeachment as may be by law directed to be tried before
it, and it has appellate jurisdiction in all other cases.
30.-2d. Of the circuit courts, their organization and jurisdiction.
1st. Of their organization. The state is divided into nine judicial
districts, in each of which a circuit judge, having the same qualifications
as the supreme judges, except that he may be appointed at the age of thirty
years, is elected by the qualified electors, who holds his office for six
years and until his successor shall be commissioned and qualified; but the
legislature may increase the number of circuits. 2d. Of their jurisdiction.
The circuit courts have jurisdiction in all cases at law and equity, and in
all cases of appeals from all inferior courts.
31.-3d. Of the county courts. There is in each county a court to be
called a county court. It is composed of one judge, elected by the people,
who holds his office for four years. Its jurisdiction extends to all probate
and such other jurisdiction as the general assembly may confer in civil
cases, and in such criminal cases as may be prescribed by law, when the
punishment is by fine only, not exceeding one hundred dollars. The county
judge, with such justices of the peace in each county as may be designated
by law, shall hold terms for the transaction of county business, and shall
perform such other duties as the general assembly shall prescribe; Provided,
the general assembly may require that two justices, to be chosen by the
qualified electors of each county, shall sit with the county judge in all
cases; and there shall be elected, quadrennially, in each county, a clerk of
the county court, who shall be ex officio recorder, whose compensation shall
be fees; Provided, the general assembly may, by law, make the clerk of the
circuit court ex officio recorder, in lieu of the county clerk.
32.-4th. Of justices of the peace. There shall be elected in each
county in this state, in such districts as the general assembly may direct,
by the qualified electors thereof, a competent number of justices of the
peace, who shall hold their offices for the term of four years, and until
their successors shall have been elected and qualified, and who shall
perform such duties, receive such compensation, and exercise such
jurisdiction as may be prescribed by law.
ILLITERATE. This term is applied to one unacquainted with letters.
2. When an ignorant man, unable to read, signs a deed or agreement, or
makes his mark instead of a signature, and he alleges, and can provide that
it was falsely read to him, he is not bound by it, in consequence of the
fraud. And the same effect would result, if the deed or agreement were
falsely read to a blind man, who could have read before he lost his sight,
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or to a foreigner who did not understand the language. For a plea of "laymen
and unlettered," see Bauer v. Roth, 4 Rawle, Rep. 85 and pp. 94, 95.
3. To induce an illiterate man, by false representations and false
reading, to sign a note for a greater amount than that agreed on, is
indictable as a cheat. 1 Yerg. 76. Vide, generally, 2 Nels. Ab. 946; 2 Co.
3; 11 Co. 28; Moor, 148.
ILLUSION. A species of mania in which the sensibility of the nervous system
is altered, excited, weakened or perverted. The patient is deceived by the
false appearance of things, and his reason is not sufficiently active and
powerful to correct the error, and this last particular is what
distinguishes the sane from the insane. Illusions are not unfrequent in a
state of health, but reason corrects the errors and dissipates them. A
square tower seen from a distance may appear round, but on approaching it,
the error is corrected. A distant mountain may be taken for a cloud, but as
we approach, we discover the truth. To a person in the cabin of a vessel
under sail, the shore appears to move; but reflection and a closer
examination soon destroy this illusion. An insane individual is mistaken on
the qualities, connexions, and causes of the impressions he actually
receives, and he forms wrong judgments as to his internal and external
sensations; and his reason does not correct the error. 1 Beck's Med. Jur.
538; Esquirol, Maladies Mentales, prem. partie, III., tome 1, p. 202. Dict.
des Sciences Medicales, Hallucination, tome 20, p. 64. See Hallucination.
ILLUSORY APPOINTMENT, chancery practice. Such an appointment or disposition
of property under a power as is merely nominal and not substantial.
2. Illusory appointments are void in equity. Sugd. Pow. 489; 1 Vern.
67; 1 T. R. 438, note; 4 Ves. 785; 16 Ves. 26; 1 Taunt. 289; and the article
Appointment.
TO IMAGINE, Eng. law. In cases of treason the law makes it a crime to
imagine the death of the king. In order to complete the offence there must,
however, be an overt act the terms compassing and imagining being
synonymous. It. has been justly remarked that the words to compass and
imagine are too vague for a statute whose penalty affects the life of a
subject. Barr. on the Stat. 243, 4. Vide Fiction.
IMBECILITY, med. jur. A weakness of the mind, caused by the absence or
obliteration of natural or acquired ideas; or it is described to be an
abnormal deficiency either in those faculties which acquaint us with the
qualities and ordinary relations of things, or in those which furnish us
with the moral motives that regulate our relations and conduct towards our
fellow men. It is frequently attended with excessive activity. of one or
more of the animal propensities.
2. Imbecility differs from idiocy in this, that the subjects of the
former possess some intellectual capacity, though inferior in degree to that
possessed by the great mass of mankind; while those of the latter are
utterly destitute of reason. Imbecility differs also from stupidity. (q.v.)
The former consists in a defect of the mind, which renders it unable to
examine the data presented to it by the senses, and therefrom to deduce the
correct judgment; that is, a defect of intensity, or reflective power. The
latter is occasioned by a want of intensity, or perceptive power.
3. There are various degrees of this disease. It has been attempted to
classify the degrees of imbecility, but the careful observer of nature will
perhaps be soon satisfied that the shades of difference between one species
and another, are almost imperceptible. Ray, Med. Jur. ch. 3; 2 Beck, Med.
Jur. 550, 542; 1 Hagg. Ecc. R. 384; 2 Philm. R. 449; 1 Litt. R. 252, 5 John.
Ch. R. 161; 1 Litt. R. 101; Des Maladies mentales, considerees dans leurs
rapports avec la legislation civille et criminelle, 8; Georget, Discussion
medico-legale sur la folie, 140.
IMMATERIAL. What is not essential; unimportant what is not requisite; what
is informal; as, an immaterial averment, an immaterial issue.
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2. When a witness deposes to something immaterial, which is false,
although he is guilty of perjury in foro conscientiae, he cannot be punished
for perjury. 2 Russ. on Cr. 521; 1 Hawk. b. 1, c. 69, s. 8; Bac. Ab.
Perjury, A.
IMMATERIAL AVERMENT. One alleging with needless particularity or unnecessary
circumstances, what is material and requisite, and which, properly, might
have been stated more generally, or without such circumstances or
particulars; or, in other words, it, is a statement of unnecessary
particulars, in connexion with, and as descriptive of, what is material.
Gould on Pl. c. 3, Sec. 186.
2. It is highly improper to introduce immaterial averments, because,
when they are made, they must be proved; as, if, a plaintiff declare for
rent on a demise which is described as reserving a certain annual rent,
payable "by four even and equal quarterly payments," &c.; and on the trial
it appears that there was no stipulation with regard to the time or times of
payment of the rents, the plaintiff cannot recover. The averment as to the
time, though it need not have been made, yet it must be proved, and the
plaintiff having failed in this, he cannot recover; as there is a variance
between the contract declared upon and the contract proved. Dougl. 665.
3. But when the immaterial averment is such that it may be struck out
of the declaration, without striking out at the same time the cause of
action, and when there is no variance between the contract as, laid in the
declaration and that proved, immaterial averments then need not be proved.
Gould on Pl. C. 3, Sec. 188.
IMMATERIAL ISSUE. One taken on a point not proper to decide the action; for
example, if in an action of debt on bond, conditioned for the payment of ten
dollars and fifty cents at a certain day, the defend ant pleads the payment
of ten dollars according to the form of the condition, and the plaintiff,
instead of demurring, tenders issue upon the payment, it is manifest that,
whether this issue be found for the plaintiff or the defendant, it will
remain equally uncertain whether the plaintiff is entitled to maintain his
action, or not; for, in an action for the penalty of a bond, conditioned to
pay a certain sum, the only material question is, whether the exact sum were
paid or not, and the question of payment of a part is a question quite
beside the legal merits. Hob. 113; 5 Taunt. 386.
IMMEDIATE. That which is produced directly by the act to which it is
ascribed, without the intervention or agency of any distinct intermediate
cause.
2. For immediate injuries the remedy is trespass; for those which are
consequential, an action on the case. 11 Mass. R. 59, 137, 525; 1 & 2 Ohio
R. 342; 6 S. & R. 348; 18 John. 257; 19 John. 381; 2 H. & M. 423; 1 Yeates,
R. 586; 12 S & R. 210; Coxe, R. 339; Harper's R. 113; 6 Call's R. 44; 1
Marsh. R. 194.
3. When an immediate injury is caused by negligence, the injured party
may elect to regard the negligence as the immediate cause of action, and
declare in case; or to consider the act itself as the immediate injury, and
sue in trespass. 14 John. 432; 6 Cowen, 342; 3 N. H. Rep. 465; sed vide 3
Conn. 64; 2 Bos. & Pull. New Rep. by Day, 448, note. See Cause.
IMMEMORIAL. That which commences beyond the time of memory. Vide Memory,
time of.
IMMEMORIAL POSSESSION. In Louisiana, by this term is understood that of
which no man living has seen the beginning, and the existence of which he
has learned from his elders. Civ. Code of Lo. art. 762; 2 M. R. 214; 7 L. R.
46; 3 Toull. p. 410; Poth. Contr. de Societe, n. 244; 3 Bouv. Inst. n. 3069,
note.
IMMIGRATION. The removing into one place from another. It differs from
emigration, which is the moving from one place into another. Vide
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Emigration.
IMMORAL CONSIDERATION. One contrary to good morals, and therefore invalid.
See Moral obligation.
IMMORALITY. that which is contra bonos mores. In England, it is not
punishable in some cases, at the common law, on, account of the
ecclesiastical jurisdictions: e. g. adultery. But except in cases belonging
to the ecclesiastical courts, the court of king's bench is the custom morum,
and may punish delicto contra bonos mores. 3 Burr. Rep. 1438; 1 Bl. Rep. 94;
2 Strange, 788. In Pennsylvania, and most, if not all the United States, all
such cases come under one and the same jurisdiction.
2. Immoral contracts are generally void; an agreement in consideration
of future illicit cohabitation between the parties; 3 Burr. 1568; S. C. 1
Bl. Rep. 517; 1 Esp. R. 13; 1 B. & P. 340, 341; an agreement for the value
of libelous and immoral pictures, 4 Esp. R. 97; or for printing a libel, 2
Stark. R. 107; or for an immoral wager, Chit. Contr. 156, cannot, therefore,
be enforced. For whatever arises from an immoral or illegal consideration,
is void: quid turpi ex causa promissum est non valet. Inst. 3, 20, 24.
3. It is a general rule, that whenever an agreement appears to be
illegal, immoral, or against public policy, a court of justice leaves the
parties where it finds them; when the agreement has been executed, the court
will not rescind it; when executory, the count will not help the execution.
4 Ohio R. 419; 4 John. R. 419; 11 John. R. 388; 12 John. R. 306; 19 John. R.
341; 3 Cowen's R. 213; 2 Wils. R. 341.
IMMOVABLES, civil law. Things are movable or immovable. Immovables, res
immobiles, are things in general, such as cannot move themselves or be
removed from one place to another. But this definition, strictly speaking,
is applicable only to such things as are immovable by their own nature, and
not to such as are so only by the destination of the law.
2. There are things immovable by their nature, others by their
destination, and others by the objects to which they are applied.
3.-1. Lands and buildings or other constructions, whether they have
their foundations in the soil or not, are immovable by their nature. By the
common law, buildings erected on the land are not considered real estate,
unless they have been let into, or united to the land, or to substances
previously connected therewith. Ferard on Fixt. 2.
4.-2. Things, which the owner of the land has placed upon it for its
service and improvement, are immovables by destination, as seeds, plants,
fodder, manure, pigeons in a pigeon-house, bee-hives, and the like. By the
common. law, erections with or without a foundation, when made for the
purpose of trade, are considered personal estate. 2 Pet. S. C. Rep. 137; 3
Atk. 13; Ambl. 113
5.-3. A servitude established on real estate, is an instance of an
immovable, which is so considered in consequence of the object to which it
is applied. Vide Civil Code of Louis. B. 2, t. 1, c. 2, art. 453-463; Poth.
Des Choses, Sec. 1; Poth. de la Communante, n. 25, et seq; Clef des Lois
Romaines, mot Immeubles.
IMMUNITY. An exemption from serving in an office, or performing duties which
the law generally requires other citizens to perform. Vide Dig. lib. 50, t.
6; 1 Chit. Cr. L. 821; 4 Har. & M'Hen. 341.
IMMUTABLE. What cannot be removed, what is unchangeable. The laws of God
being perfect, are immutable, but no human law can be so considered.
IMPAIRING THE OBLIGATION OF CONTRACTS. The Constitution of the United
States, art. 1, s. 9, cl. 1, declares that no state shall "pass any bill of
attainder, ex post facto law, or law impairing the obligation of contracts."
2. Contracts, when considered in relation to their effects, are
executed, that is, by transfer of the possession of the thing contracted
for; or they are executory, which gives only a right of action for the
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subject of the contract. Contracts are also express or implied. The
constitution makes no distinction between one class of contracts and the
other. 6 Cranch, 135; 7 Cranch, 164.
3. The obligation of a contract here spoken of is a legal, not a mere
moral obligation; it is the law which binds the party to perform his
undertaking. The obligation does not inhere or subsist in the contract
itself, proprio vigore, but in the law applicable to the contract. 4 Wheat.
R. 197; 12 Wheat. R. 318; and. this law is not the universal law of nations,
but it is the law of the state where the contract is made. 12 Wheat. R. 213.
Any law which enlarges, abridges, or in any manner changes the intention of
the parties, resulting from the stipulations in the contract, necessarily
impairs it. 12 Wheat. 256; Id. 327; 3 Wash. C. C. Rep. 319; 8 Wheat. 84; 4
Wheat. 197.
4. The constitution forbids the states to pass any law impairing the
obligation of contracts, but there is nothing in that instrument which
prohibits Congress from passing such a law. Pet. C. C. R. 322. Vide,
generally, Story on the Const. Sec. 1368 to 1891 Serg. Const. Law, 356;
Rawle on the Const. h.t.; Dane's Ab. Index, h.t.; 10 Am. Jur. 273-297.
TO IMPANEL, practice. The writing the names of a jury on a schedule, by the
sheriff or other officer lawfully authorized.
IMPARLANCE, pleading and practice. Imparlance, from the French, parler, to
speak, or licentia loquendi, in its most general signification, means time
given by the court to either party to answer the pleading of his opponent,
as either, to plead, reply, rejoin, &c., and is said to be nothing else but
the continuance of the cause till a further day. Bac. Abr. Pleas, C. But the
more common signification of the term is time to plead. 2 Saund. 1, n. 2; 2
Show. 3 10; Barnes, 346; Lawes, Civ. Pl. 93, 94.
2. Imparlances are of three descriptions: First. A common or general
imparlance. Secondly. A special imparlance. Thirdly. A general special
imparlance.
3.-1. A general imparlance is the entry of a general prayer. and
allowance of time to plead till the next term, without reserving to the
defendant the benefit of any exception; so that, after such an imparlance,
the defendant cannot object to the jurisdiction of the court, or plead any
matter in abatement. This kind of imparlance is always from one term to
another.
4.-2. A special imparlance reserves to the defendant all exception to
the writ, bill, or count; and, therefore, after it, the defendant may plead
in abatement, though not to the jurisdiction of the court.
5.-3. A general special imparlance contains a saving of all
exceptions whatsoever, so that the defendant, after this, may plead, not
only in abatement, but he may also plead a plea which affects the
jurisdiction of the court, as privilege. He cannot, however, plead a tender,
and that he was always ready to pay, because, by craving time, he admits he
is not ready, and so falsifies his plea. Tidd's Pr. 418, 419. The last two
kinds of imparlances are, it seems, sometimes from one day to another in the
same term. See, in general, Com. Dig Abatement, I 19, 20, 21; 1 Chit. Pl.
420; Bac. Abr. Pleas, C; 14 Vin. Abr. 335; Com. Dig. Pleader, D; 1 Sell. Pr.
265; Doct. Pl. 291; Encycl. de M. D'Alembert, art. Delai (Jurisp.)
IMPEACHMENT, const. law, punishments. Under the constitution and laws of the
United States, an impeachment may be described to be a written accusation,
by the house of representatives of the United States, to the senate of the
United States, against an officer. The presentment, written accusation, is
called articles of impeachment.
2. The constitution declares that the house of representatives shall
have the sole power of impeachment art. 1, s. 2, cl. 5 and that the senate
shall have the sole power to try all impeachments. Art. 1, s. 3, cl. 6.
3. The persons liable to impeachment are the president, vice-president,
and all civil officers of the United States. Art. 2, s. 4. A question arose
upon an impeachment before the senate, in 1799, whether a senator was a
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civil officer of the United States, within the purview of this section of
the constitution, and it was decided by the senate, by a vote of fourteen
against eleven, that he was not. Senate Journ., January 10th, 1799; Story on
Const. Sec. 791; Rawle on Const. 213, 214 Serg. Const. Law, 376.
4. The offences for which a guilty officer may be impeached are,
treason, bribery, and other high crimes and misdemeanors. Art. 2, s. 4. The
constitution defines the crime of treason. Art. 3, s. 3. Recourse must be
had to the common law for a definition of bribery. Not having particularly
mentioned what is to be understood by "other high crimes and misdemeanors,"
resort, it is presumed, must be had to parliamentary practice, and the
common law, in order to ascertain what they are. Story, Sec. 795.
5. The mode of proceeding, in the institution and trial of
impeachments, is as follows: When a person who may be legally impeached has
been guilty, or is supposed to have been guilty, of some malversation in
office, a resolution is generally brought forward by a member of the house
of representatives, either to accuse the party, or for a committee of
inquiry. If the committee report adversely to the party accused, they give a
statement of the charges, and recommend that he be impeached; when the
resolution is adopted by the house, a committee is appointed to impeach the
party at the bar of the senate, and to state that the articles of
impeachment against him will be exhibited in due time, and made good before
the senate, and to demand that the senate take order for the appearance of
the party to answer to the impeachment. The house then agree upon the
articles of impeachment, and they are presented to the senate by a committee
appointed by the house to prosecute the impeachment; the senate then issues
process, summoning the party to appear at a given day before them, to answer
to the articles. The process is served by the sergeant-at-arms of the
senate, and a return is made of it to the senate, under oath. On the return-
day of the process, the senate resolves itself into a court of impeachment,
and the senators are sworn to do justice, according to the constitution and
laws. The person impeached is called to answer, and either appears or does
not appear. If he does not appear, his default is recorded, and the senate
may proceed ex parte. If he does appear, either by himself or attorney, the
parties are required to form an issue, and a time is then assigned for the
trial. The proceedings on the trial are conducted substantially as they are
upon common judicial trials. If any debates arise among the senators, they
are conducted in secret, and the final decision is given by yeas and nays;
but no person can be convicted without the concurrence of two-thirds of the
members present. Const. art. 1, s. 2, cl. 6.
6. When the president is tried, the chief justice shall preside. The
judgment, in cases of impeachment shall not extend further than to removal
from office, and disqualification to hold and enjoy any office of honor,
trust, or profit under the United States. Proceedings on impeachments under
the state constitutions are somewhat similar. Vide Courts of the United
States.
IMPEACHMENT, evidence. An allegation, supported by proof, that a witness who
has been examined is unworthy of credit.
2. Every witness is liable to be impeached as to his character for
truth; and, if his general character is good, he is presumed, at all times,
to be ready to support it. 3 Bouv. Inst. n. 3224, et seq.
IMPEACHMENT OF WASTE. It signifies a restraint from committing waste upon
lands or tenements; or a demand of compensation for waste done by a tenant
who has but a particular estate in the land granted, and, therefore, no
right to commit waste.
2. All tenants for life, or any less estate, are liable to be impeached
for waste, unless they hold without impeachment of waste; in the latter
case, they may commit waste without being questioned, or any demand for
compensation for the waste done. 11 Co. 82.
IMPEDIMENTS, contracts. Legal objections to the making of a contract.
Impediments which relate to the person are those of minority, want of
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reason, coverture, and the like; they are sometimes called disabilities.
Vide Incapacity.
2. In the civil law, this term is used to signify bars to a marriage.
These impediments are classed, as they are applied to particular persons,
into absolute and relative; as they relate to the contract and its validity,
they are dirimant (q.v.) and prohibitive. (q.v.) 1. The absolute
impediments are those which prevent the person subject to them from marrying
at, all, without either the nullity of marriage, or, its being punishable.
2. The relative impediments are those which regard only certain persons with
regard to each other; as, the marriage of a brother to a sister. 3. The
dirimant impediments are those which render a marriage void; as, where one
of the contracting parties is already married to another person. 4.
Prohibitive impediments are those which do not render the marriage null, but
subject the parties to a punishment. Bowy. Mod. Civ. Law, 44, 45.
IMPERFECT. That which is incomplete.
2. This term is applied to rights and obligations. A man has a right to
be relieved by his fellow-creatures, when in distress; but this right he
cannot enforce by law; hence it is called an imperfect right. On the other
hand, we are bound to be grateful for favors received, but we cannot be
compelled to perform such imperfect obligations. Vide Poth. Ob. arc.
Preliminaire; Vattel, Dr. des Gens, Prel. notes, Sec. 17; and Obligations.
IMPERIUM. The right to command, which includes the right to employ the force
of the state to enforce the laws; this is one of the principal attributes of
the power of the executive. 1 Toull. n. 58.
IMPERTINENT, practice, pleading. What does not appertain, or belong to; id
est, qui ad rem non pertinet.
2. Evidence of facts which do not belong to the matter in question, is
impertinent and inadmissible. In general, what is immaterial is impertinent,
and what is material is, in general, not impertinent. 1 McC. & Y. 337. See
Gresl. Ev. Ch. 3, s. 1, p. 229. Impertinent matter, in a declaration or
other pleading is that which does not belong to the subject; in such case it
is considered as mere surplusage, (q.v.) and is rejected. Ham. N. P. 25.
Vide 2 Ves. 24; 5 Madd. R. 450; Newl. Pr. 38; 2 Ves. 631; 5 Ves. 656; 18
Eng. Com. Law R. 201; Eden on Inj. 71.
3. There is a difference between matter merely impertinent and that
which is scandalous; matter may be impertinent, without being scandalous;
but if it is scandalous, it must be impertinent.
4. In equity a bill cannot, according to the general practice, be
referred for impertinence after the defendant has answered or submitted to
answer, but it may be referred for scandal at any time, and even upon the
application of a stranger to the suit. Coop. Eq. Pl. 19; 2 Ves. 631; 6 Ves.
514; Story, Eq. Pl. Sec. 270. Vide Gresl. Eq. Ev. p. 2, c. 3, s, 1; 1 John.
Ch. R. 103; 1 Paige's R. 555; I Edw. R. 350; 11 Price, R. 111; 5 Paige's R.
522; 1 Russ. & My. 28; Bouv. Inst. Index, h.t.; Scandal.
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IN FRAUDEM LEGIS. In fraud of the law. Every thing done in fraudem
legis is void in law. 2 Ves. sen. 155, 156 Bouv. Inst. n. 585, 3834.
IN TOTIDEM VERHIS. In just so many words; as, the legislature has declared
this to be a crime in totidem verhis.
IN TOTO. In the whole; wholly; completely; as, the award is void in toto. In
the whole the part is contained: in toto et pars continetur. Dig. 50, 17,
123.
IN TRANSITU. During the transit, or removal from one place to another.
2. The transit continues until the goods have arrived at their place of
destination, and nothing remains to be done to complete the delivery; or
until the goods have been delivered, before reaching their place of
destination, and the person entitled takes an actual or symbolical
possession. Vide Stoppage in transitu; Transitus.
IN VADIO. In pledge; in gage.
IN VENTRE SA MERE. In his mother's womb.
2.-1. In law a child is for all beneficial purposes considered as
born while in ventre sa mere. 5 T. R. 49; Co. Litt. 36; 1 P. Wms. 329; Civ.
Code of Lo. art. 948. But a stranger can acquire no title by descent through
a child in ventre sa mere, who is not subsequently born alive. See Birth;
Dead Born.
3.-2. Such a child is enabled to have an estate limited to his use.
1. Bl. Com. 130.
4.-3. May have a distributive share of intestate property. 1 Ves. 81.
5.-4. Is capable of taking a devise of lands. 2 Atk. 117; 1 Freem.
224, 298.
6.-5. Takes under a marriage settlement a provision made for children
living at the death of the father. 1 Ves. 85.
7.-6. Is capable of taking a legacy, and is entitled to a share in a
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fund bequeathed to children under a general description, of "children," or
of "children living at the testator's death." 2 H. Bl. 399; 2 Bro. C. C.
320; S. C. 2 Ves. jr. 673; 1 Sim. & Stu. 181; 1 B. & P. 243; 5 T. R. 49.
See, also, 1 Ves. sr. 85; Id. 111; 1 P. Wms. 244, 341; 2 Bro. C. C. 63; Amb.
708, 711; 1 Salk. 229; 2 P. Wms. 446; 2 Atk. 114; Pre. Ch. 50; 2 Vern. 710;
3 Ves. 486; 7 T. R. 100; 4 Ves. 322; Bac. Ab. Legacies, &c., A; 1 Rop. Leg.
52, 3; 5 Serg. & Rawle, 40.
8.-7. May be appointed executor. Bac. Ab. Infancy, B.
9.-8. A bill may be brought in its behalf, and the court will grant
an injunction to stay waste. 2 Vern. 710 Pr. Ch. 50.
10.-9. The mother, of a child in ventre sa mere may detain writings
on its behalf. 2 Vern. 710.
11.-10. May have a guardian assigned to it. 1 Bl. Com. 130.
12.-11. The destruction of such a child is a high misdemeanor. 1 Bl.
Com. 129, 130.
13.-12. And the birth of a posthumous child amounts, in Pennsylvania,
to the revocation of a will previously executed, so far as regards such
child. 3 Binn. 498. See Coop. Just. 496. See, as to the law of Virginia on
this subject, 3 Munf. 20. Vide Foetus.
IN WITNESS WHEREOF. These words, which, when conveyancing was in the Latin
language, were in cujus rei testimonium, are the initial words of the
concluding clause in deeds. "In witness whereof the said parties have
hereunto set their hands," &c.
INADEQUATE PRICE. This term is applied to indicate the want of a sufficient
consideration for a thing sold,or such a price as, under ordinary
circumstances, would be considered insufficient.
2. Inadequacy of price is frequently connected with fraud, gross
misrepresentations, or an intentional concealment of the defects in the
thing sold. In these cases it is clear the. vendor cannot compel the buyer
to fulfill the contract. 1 Lev. 111; 1 Bro. P. C. 187; 6 John. R. 110; 3
Cranch, 270; 4 Dall. R. 250; 3 Atk. 283; 1 Bro. C. C. 440.
3. In general, however, inadequacy of price is not sufficient ground to
avoid a contract, particularly' when the property has been sold by auction.
7 Ves. jr. 30; 3 Bro. C. C. 228; 7 Ves. jr. 35, note. But if an uncertain
consideration, as a life annuity, be given for an estate, and the contract
be executory, equity, it seems, will enter into the adequacy of the
consideration. 7 Bro. P. C. 184; 1 Bro. C. C. 156. Vide. 1 Yeates, R. 312;
Sugd. Vend. 189 to 199; 1 B. & B. 165; 1 M'Cord's Ch. R. 383, 389, 390; 4
Desaus. R. 651. Vide Price.
INADMISSIBLE. What cannot be received. Parol evidence, for example, is
inadmissible to contradict a written agreement.
INALIENABLE. This word is applied to those things, the property of which
cannot be lawfully transferred from one person to another. Public highways
and rivers are of this kind; there are also many rights which are
inalienable, as the rights of liberty, or of speech.
INAUGURATION. This word was applied by the Romans to the ceremony of
dedicating some temple, or raising some man to the priesthood, after the
augurs had been consulted. It was afterwards applied to the installation
(q.v.) of the emperors, kings, and prelates, in imitation of the ceremonies
of
the Romans when they entered into the temple of the augurs. It is applied in
the United States to the installation of the chief magistrate of the
republic, and of the governors of the several states.
INCAPACITY. The want of a quality legally to do, give, transmit, or receive
something.
2. It arises from nature, from the law, or from both. From nature, when
the party has not his senses, as, in the case of an idiot; from the law, as,
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in the case of a bastard who cannot inherit from nature and the law; as, in
the case of a married woman, who cannot make contracts or a will.
3. In general, the incapacity ceases with the cause which produces it.
If the idiot should obtain his senses, or the married woman's husband die,
their incapacity would be at an end.
4. When a cause of action arises during the incapacity of a person
having the right to sue, the act of limitation does not, in general,
commence to run till the incapacity has been removed. But two incapacities
cannot be joined in order to come within the statute.
INCENDIARY, crim. law. One who maliciously and willfully sets another
person's house on fire; one guilty of the crime of arson.
2. This offence is punished by the statute laws of the different states
according to their several provisions. The civil law punished it with death,
Dig. 47, 9, 12, 1, by the offender being cast into the fire. Id. 48, 19, 28,
12; Code, 9, 1, 11. Vide Dane's Ab. Index, h.t.
INCEPTION. The commencement; the beginning. In making a will, for example,
the writing is its inception. 3 Co. 31 b; Plowd. 343. Vide Consummation;
Progression.
INCEST. The carnal copulation of a man and a woman related to each other in
any of the degrees within which marriage is prohibited by law. Vide
Marriage. It is punished by fine and imprisonment, under the laws of the
respective states., Vide 1 Smith's Laws of Pennsylv. 26; Dane's Ab. Index,
h.t.; Dig. 23, 2, 68; 6 Conn. R. 446; Penal Laws of China, B. 1, s. 2, Sec.
10; Sw. part 2 Sec. 17, p. 103.
INCH. From the Latin uncia. A measure of length, containing one-twelfth part
of a foot.
INCHOATE. That which is not yet completed or finished. Contracts are
considered inchoate until they are executed by all the parties who ought to
have executed them. For example, a covenant which purports to be tripartite,
and is executed by only two of the parties, is incomplete, and no one is
bound by it. 2 Halst. 142. Vide Locus paenitentiae.
INCIDENT. A thing depending upon, appertaining to, or following another,
called the principal.
2. The power of punishing for contempt is incident to a court of
record; rent is incident to a reversion; distress to rent; estovers of woods
to a tenancy for a life or years. 1 Inst. 151; Noy's Max. n. 13; Vin. Ab.
h.. t.; Dane's Ab. h.t.; Com. Dig. h.t., and the references there; Bro.
Ab. h.t.; Roll's Ab. 75.
INCIPITUR, practice. This word, which means "it is begun," signifies the
commencement of the entry on the roll. on signing judgment, &c.
INCOMPATIBILITY. offices, rights. This term is used to show that two or more
things ought not to exist at the same time in the same person; for example,
a man cannot at the same time be landlord and tenant of the same land; heir
and devise of the same thing; trustee and cestui que trust of the same
property.
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2. There are offices which are incompatible with each other by
constitutional provision; the vice-president of tho United States cannot act
as such when filling the office of president; Const. art. 1, s. 3, n. 5; and
by the same instrument, art. 1, s. 6, n. 2, it is directed that "no senator
or representative shall, during the time for which he was elected, be
appointed to any civil office under the authority of the United States,
which shall have been created or the emoluments whereof shall have been
increased, during such time; and no person holding any office under the
United States, shall be a member of either house, during his continuance in
office."
3. Provisions rendering offices incompatible are to be found in most of
the, constitutions of the states, and in some of their laws. In
Pennsylvania, the acts of the 12th of February, 1802, 3 Smith's Laws of Pa.
485; and 6th of March, 1812, 5 Sm. L. Pa. 309, contain various provisions,
making certain offices incompatible, with each other. At common law, offices
subordinate and interfering with each other have been considered
incompatible; for example, a man cannot be at once a judge and prothonotary
or clerk of the same court. 4 Inst. 100. Vide 4 S. & R. 277; 17 S. & R. 219;
and the article Office.
INCOMPETENCY, French law. The state of a judge who cannot take cognizance of
a dispute brought before him; it implies a want of jurisdiction.
2. Incompetency is material, ratione materia, or personal, ratione
personae. The first takes place when a judge takes cognizance of a matter
over which another judge has the sole jurisdiction, and this cannot be cured
by the appearance or agreement of the parties.
3. The second is, when the matter in dispute is within the jurisdiction
of the judge, but the parties in the case are not; in which case they make
the judge competent, unless they make their objection before they. take
defence. See Peck, 374; 17 John. 13; 12 Conn. 88; 3 Cowen, Rep. 724; 1 Penn.
195; 4 Yeates, 446. When a party has a privilege which exempts him from the
jurisdiction, he may waive the privilege. 4 McCord, 79; Wright, 484; 4 Mass.
593; Pet. C. C. R. 489; 5 Cranch, 288; 1 Pet. R. 449; 4 W. C. C. R. 84; 8
Wheat. 699; Merl. Rep. mot Incompetence.
4. It is a maxim in the common law, aliquis non debet esse judex in
propria causa. Co. Litt. 141, a; see 14 Vin. Abr. 573; 4 Com. Dig. 6. The
greatest delicacy, is constantly observed on the part of judges, so that
they never act when there could be the possibility of doubt whether they
could be free from bias, and even a distant degree of relationship has
induced a judge to decline interfering. 1 Knapp's Rep. 376. The slightest
degree of pecuniary interest is considered as an insuperable objection. But
at common law, interest forms the only ground for challenging a judge. It is
not a ground of challenge that he has given his opinion before. 4 Bin. 349;
2 Bin. 454. See 4 Mod. 226; Comb. 218; Hard. 44; Hob. 87; 2 Binn. R. 454; 13
Mass. R. 340; 5 Mass. R. 92; 6 Pick. 109; Peck, R. 374; Coxe, Rep. 190; 3
Ham. R. 289; 17 John. Rep. 133; 12 Conn. R. 88; 1 Penning R. 185; 4 Yeates,
R. 466; 3 Cowen, R. 725; Salk. 396; Bac. Ab. Courts, B; and the articles
Competency; Credibility; Interest; Judge; Witness.
INCOMPETENCY, evidence. The want of legal fitness, or ability in a witness
to be heard as such on the trial of a cause.
2. The objections to the competency (q.v.) of a witness are four-fold.
The first ground is the want of understanding; a second is defect of
religious principles; a third arises from the conviction of certain crimes,
or infamy of character; the fourth is on account of interest. (q.v.) 1
Phil. Ev. 15.
INCONCLUSIVE. What does not put an end to a thing. Inconclusive presumptions
are those which may be overcome by opposing proof; for example, the law
presumes that he who possesses personal property is the owner of it, but
evidence is allowed to contradict this presumption, and show who is the true
owner. 3 Bouv. Inst. in. 3063.
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INCONTINENCE Impudicity, the indulgence in unlawful carnal connexions.
Wolff, Dr. de la Nat. Sec. 862.
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INDEMNITY. That which is given to a person to prevent his suffering damage.
2 McCord, 279. Sometimes it signifies diminution; a tenant who has been
interrupted in the enjoyment of his lease may require an indemnity from the
lessor, that is, a reduction of his rent.
2. It is a rule established in all just governments that, when private
property is required for public, use, indemnity shall be given by the public
to the owner. This is the case in the United States. See Code Civil, art.
545. See Damnification.
3. Contracts made for the purpose of indemnifying a person for doing an
act for which he could be indicted, or an agreement to, compensate a public
officer for doing an act which is forbidden by law, or omitting to do one
which the law commands, are absolutely void. But when the agreement with an
officer was not to induce him to neglect his duty, but to test a legal
right, as to indemnify him for not executing an execution, it was held to be
good. 1 Bouv. Inst. n. 780.
INDENTURE, conveyancing. An instrument of writing containing a conveyance or
contract between two or more persons, usually indented or cut unevenly, or
in and out, on the top or, side.
2. Formerly it was common to make two instruments exactly alike, and it
was then usual to write both on the same parchment, with some words or
letters written between them, through which the parchment was cut, either in
a straight or indented line, in such a manner as to leave one-half of the
word on one part, and half on the other. The instrument usually commences
with these words, "This indenture," which were not formerly sufficient,
unless the parchment or paper was actually indented to make an indenture 5
Co. 20; but now, if the form of indenting the parchment be wanting, it may
be supplied by being done in court, this being mere form. Besides, it would
be exceedingly difficult with even the most perfect instruments, to out
parchment or paper without indenting it. Vide Bac. Ab. Leases, &c. E 2; Com.
Dig. Fait, C, and note d; Litt. sec. 370; Co. Litt. 143 b, 229 a; Cruise,
Dig t. 32, c. 1, s. 24; 2 Bl. Com. 294; 1 Sess. Cas. 222.
INFAMIS. Among the Romans was of a general rule, and not by virtue of an
arbitrary decision of the censors, lost his political rights, but preserved
his civil rights. Sav. Dr. Rom Sec. 79.
INFAMY, crim. law, evidence. That state which is produced by the conviction
of crime and the loss of honor, which renders the infamous person
incompetent as a witness.
2. It is to be considered, 1st. What crimes or punishment incapacitate
a witness. 2d. How the guilt is to be proved. 3d. How the objection
answered. 4th. The effect of infamy.
3.-1. When a man is convicted of an offence which is inconsistent
with the common principles of honesty and humanity, the law considers his
oath to be of no weight, and excludes his testimony as of too doubtful and
suspicious a nature to be admitted in a court of justice to deprive another
of life, liberty or property. Gilb. L. E. 256; 2 Bulst. 154; 1 Phil. 23;
Bull. N. P. 291. The crimes which render a person incompetent, are treason;
5 Mod. 16, 74; felony; 2 Bulst. 154; Co. Litt. 6; T. Raym. 369; all offences
founded in fraud, and which come within the general. notion of the crimen
falsi of the Roman law; Leach, 496; as perjury and forgery; Co. Litt. 6;
Fort. 209; piracy 2 Roll. Ab. 886; swindling, cheating; Fort. 209; barratry;
2 Salk. 690; and the bribing a witness to absent himself from a trial, in
order to get rid of his evidence. Fort. 208. It is the crime and not the
punishment which renders the offender unworthy of belief. 1 Phill. Ev. 25.
4.-2. In order to incapacitate the party, the judgment must be proved
as pronounced by a court possessing competent jurisdiction. 1 Sid. 51; 2
Stark. C. 183; Stark. Ev. part 2, p. 144, note 1; Id. part 4, p. 716. But it
has been held that a conviction of an infamous crime in another country, or
another of the United States, does not render the witness incompetent on the
ground of infamy. 17 Mass. 515. Though this doctrine appears to be at
variance with the opinions entertained by foreign jurists, who maintain that
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the state or condition of a person in the place of his domicil accompanies
him everywhere. Story, Confl. Sec. 620, and the authorities there cited;
Foelix, Traite De Droit Intern. Prive, 31; Merl. Repert, mot Loi, Sec. 6, n.
6.
5.-3. The objection to competency may be answered, 1st. By proof of
pardon. See Pardon. And, 2d. By proof of a reversal by writ of error, which
must be proved by the production of the record.
6.-4. The judgment for an infamous crime, even for perjury, does not
preclude the party from making an affidavit with a view to his own defence.
2 Salk. 461 2 Str. 1148; Martin's Rep. 45. He may, for instance, make an
affidavit in relation to the irregularity of a judgment in a cause in which
he, is a party, for otherwise he would be without a remedy. But the rule is
confined to defence, and he cannot be heard upon oath as complainant. 2
Salk. 461 2 Str. 1148. When the witness becomes incompetent from infamy of
character, the effect is the same as if he were dead and if he has attested
any instrument as a witness, previous to his conviction, evidence may be
given of his handwriting. 2 Str. 833; Stark. Ev. part. 2, sect. 193; Id.
part 4, p. 723.
7. By infamy is also understood the expressed opinion of men generally
as to the vices of another. Wolff, Dr. de la Nat. et des Gens, Sec. 148.
INFANCY. The state or condition of a person under tho age of twenty-one
years. Vide Infant.
INFANT, persons. One under the age of twenty-one years. Co. Litt. 171.
2. But he is reputed to be twenty-one years old, or of full age, the
first instant of the last day of the twenty-first year next before the
anniversary of his birth; because, according to the civil computation of
time, which differs from the natural computation, the last day having
commenced, it is considered as ended. Savig. Dr. Rom. Sec. 182. If, for
example, a person were born at any hour of the first day of January, 1810,
(even a few minutes before twelve o'clock of the night of that day,) he
would be of full age at the first instant of the thirty-first of December,
1831, although nearly forty-eight hours before he had actually attained the
full age of twenty-one years, according to years, days, hours and minutes,
because there is, in this case, no fraction of a day. 1 Sid. 162; S. C. 1
Keb. 589; 1 Salk. 44; Raym. 84; 1 Bl. Com. 463, 464, note 13, by Chitty; 1
Lilly's, Reg. 57; Com. Dig. Enfant, A; Savig. Dr. Rom. Sec. 383, 384.
3. A curious case occurred in England of a young lady who was born
after the house clock had struck, while the parish clock was striking, and
before St. Paul's had begun to strike twelve on the night of the fourth and
fifth of January, 1805, and the question was whether she was born on the
fourth or fifth of January. Mr. Coventry gives it as his opinion that she
was born on the fourth, because the house clock does not regulate anything
but domestic affairs, that the parochial clock is much better evidence, and
that a metropolitan clock ought to be received with "implicit acquiescence."
Cov. on Conv. Ev. 182-3. It is conceived that this can only be prima facie,
because, if the fact were otherwise, and the parochial and metropolitan
clocks should both have been wrong, they would undoubtedly have had no
effect in ascertaining the age of the child.
4. The sex makes no difference, a woman is therefore an infant until
she has attained her age of twenty-one years. Co. Litt. 171. Before arriving
at full infant may do many acts. A male at fourteen is of discretion, and
may consent to marry; and at that age he may disagree to and annul a
marriage he may before that time have contracted he may then choose a
guardian and, if his discretion be proved, may, at common law, make a will
of his personal estate; and may act as executor at the age of seventeen
years. A female at seven may be betrothed or given in marriage; at nine she
is entitled to dower; at twelve may consent or disagree to marriage; and, at
common law, at seventeen may act as executrix.
5. Considerable changes of the common law have probably taken place in
many of the states. In Pennsylvania, to act as an executor, the party must
be of full age. In general, an infant is not bound by his contracts, unless
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to supply him for necessaries. Selw. N. P. 137; Chit. Contr. 31; Bac. Ab.
Infancy, &c. I 3; 9 Vin. Ab. 391; 1 Com. Contr. 150,.151; 3 Rawle's R. 351;
8 T. R. 335; 1 Keb. 905, 913; S. C. 1 Sid. 258; 1 Lev. 168; 1 Sid. 129; 1
Southard's R. 87. Sed vide 6 Cranch, 226; 3 Pick. 492; 1 Nott & M'Cord, 197.
Or, unless he is empowered to enter into a contract, by some legislative
provision; as, with the consent of his parent or guardian to put himself
apprentice, or to enlist in the service of the United States. 4 Binn. 487; 5
Binn. 423.
6. Contracts made with him, may be enforced or avoided by him on his
coming of age. See Parties to contracts; Voidable. But to this general rule
there is an exception; he cannot avoid contracts for necessaries, because
these are for his benefit. See Necessaries. The privilege of avoiding a
contract on account of infancy, is strictly personal to the infant, and no
one can take advantage of it but himself. 3 Green, 343; 2 Brev. 438. When
the contract has been performed, and it is such as he would be compellable
by law to perform, it will be good and bind him. Co. Litt. 172 a. And all
the acts of an infant, which do not touch his interest, but take effect from
an authority which he has been trusted to execute, are binding. 3 Burr.
1794; Fonb. Eq., b. 1, c. 2, Sec. 5, note c.
7. The protection which the law gives an infant is to operate as a
shield to him, to protect him from improvident contracts, but not as a sword
to do injury to others. An infant is therefore responsible for his torts,
as, for slander, trespass, and the like; but he cannot be made responsible
in an action ex delicto, where the cause arose on a contract. 3 Rawle's R.
351; 6 Watts' R. 9; 25 Wend. 399; 3 Shep. 233; 9 N. H. Rep. 441; 10 Verm.
71; 5 Hill, 391. But see contra, 6 Cranch, 226; 15 Mass. 359; 4 M'Cord, 387.
8. He is also punishable for a crime, if of sufficient discretion, or
doli capax. 1 Russ. on Cr. 2, 3. Vide, generally, Bouv. Inst. Index, h.t.;
Bing. on Infancy; 1 Hare & Wall. Sel. Dec. 103, 122; the various
Abridgments and Digests, tit. Enfant, Infancy; and articles Age; Birth;
Capax Doli; Dead born; Foetus; In ventre sa mere.
INFANTICIDE, med. juris. The murder of a new born infant, Dalloz, Dict.
Homicide, Sec. 4; Code Penal, 300. There is a difference between this
offence and those known by the name of prolicide, (q.v.) and foeticide.
(q.v.)
2. To commit infanticide the child must be wholly born; it is not.
Sufficient that it was born so far as the head and breathed, if it died
before it was wholly born. 5 Carr. & Payn. 329; 24 Eng. C. L. Rep. 344; S.
C. 6 Carr: & Payn. 349; S. C. 25 Eng. C. L. Rep. 433.
3. When this crime is to be proved from circumstances, it is proper to
consider whether the child had attained that size and maturity by which it
would have been enabled to maintain an independent existence; whether it was
born alive; and, if born alive, by what means it came to its death. 1 Beck's
Med. Jur. 331 to 428, where these several questions are learnedly
considered. See also 1 Briand, Med Leg. prem. part. c. 8 Cooper's Med. Jur.
h.t. Vide Ryan's Med. Jur. 137; Med. Jur. 145, 194; Dr. Cummin's Proof of
Infanticide considered Lecieux, Considerations Medico-legales sur
l'Infanticide; Duvergie, Medicine Legale, art. Infanticide.
INFEOFFMENT, estates. The act or instrument of feoffment. (q.v.) In
Scotland it is synonymous with saisine, meaning the instrument of
possession; formerly it was synonymous with investiture, Bell's Sc. L. Dict.
h.t.
INFERENCE. A conclusion drawn by reason from premises established by proof.
2. It is the province of the judge who is to decide upon the facts to
draw the inference. When the facts are submitted to the court, the judges
draw the inference; when they are to be ascertained by a jury, it is their
duty to do so. The witness is not permitted as a general rule to draw an
inference, and testify that to the court or jury. It is his duty to state
the facts simply as they occurred. Inferences differ from presumptions.
(q.v.)
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INFERIOR. One who in relation to another has less power and is below him;
one who is bound to obey another. He who makes the law is the superior; he
who is bound to obey it, the inferior. 1 Bouv. Inst. n. 8.
INFERIOR COURTS. By this term are understood all courts except the supreme
courts. An inferior court is a court of limited jurisdiction, and it must
appear on the face of its proceedings that it has jurisdiction, or its
proceedings. will be void. 3 Bouv. Inst. n. 2529.
INFIDEL, persons, evidence. One who does not believe in the existence of a
God, who will reward or punish in this world or that which is to come.
Willes' R. 550. This term has been very indefinitely applied. Under the name
of infidel, Lord Coke comprises Jews and heathens; 2 Inst 506; 3 Inst. 165;
and Hawkins includes among infidels, such as do not believe either in the
Old or New Testament. Hawk. P. C. b 2, c. 46, s. 148.
2. It is now settled that when the witness believes in a God who will
reward or punish him even in this world he is competent. See willes, R. 550.
His belief may be proved from his previous declarations and avowed opinions;
and when he has avowed himself to be an infidel, he may show a reform of his
conduct, and change of his opinion since the declarations proved when the
declarations have been made for a very considerable space of time, slight
proof will suffice to show he has changed his opinion. There is some
conflict in the cases on this subject, some of them are here referred to:
18 John. R. 98; 1 Harper, R. 62; 4 N. Hamp. R. 444; 4 Day's Cas. 51; 2
Cowen, R. 431, 433 n., 572; 7 Conn. R. 66; 2 Tenn. R. 96; 4 Law Report, 268;
Alis. Pr. Cr. Law, 438; 5 Mason, 16; 15 mass. 184; 1 Wright, 345; So. Car.
Law Journ. 202. Vide Atheist; Future state.
INFIRM. Weak, feeble.
2. When a witness is infirm to an extent likely to destroy his life, or
to prevent his attendance at the trial, his testimony de bene esge may be
taken at any age. 1 P. Will. 117; see Aged witness.; Going witness.
INFLUENCE. Authority, credit, ascendance.
2. Influence is proper or improper. Proper influence is that which one
person gains over another by acts of kindness and, attention, and by correct
conduct. 3 Serg. & Rawle, 269. Improper influence is that dominion acquired
by any person over a mind of sanity for general purposes, and of sufficient
soundness and discretion to regulate his affairs in general, which prevents
the exercise of his discretion, and destroys his free will. 1 Cox's Cas.
355. When the former is used to induce a testator to make a will, it will
not vitiate it; but when the latter is the moving cause, the will cannot
stand. 1 Hagg. R. 581; 2 Hagg. 142; 5 Serg. & Rawle, 207; 13 Serg. & Rawle,
323; 4 Greenl. R. 220; 1 Paige, R. 171; 1 Dow. & Cl. 440; 1 Speers, 93.
3. A contract to use a party's influence to induce a person in
authority to exercise his power in a particular way, is void, as being
against public policy. 5 Watts & Serg. 315; 5 Penn. St. Rep. 452; 7 Watts,
152.
INFORMALITY. The want of those forms required by law. Informality is a good
ground for a plea in abatement. Com. Dig. Abatement, H 1, 6; Lawes, Pl. 106;
Gould, Pl. c. 5, part 1, Sec. 132.
INFORMATION. An accusation or complaint made in writing to a court of
competent jurisdiction, charging some person with a specific violation of
some public law. It differs in nothing from an indictment in its form and
substance, except that it is filed at the discretion of the proper law
officer of the government, ex officio, without the intervention or approval
of a grand jury. 4 Bl. Com. 308, 9.
2. In the French law, the term information is used to signify the act
or instrument which contains the depositions of witnesses against the
accused. Poth. Proc. Cr. sect. 2, art. 5.
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3. Informations have for their object either to punish a crime or
misdemeanor, and these have,.perhaps, never been resorted to in the United
States or to recover penalties or forfeitures, which are quite common. For
the form and requisites of an information for a penalty, see 2 Chit. Pr. 155
to 171. Vide Blake's Ch. 49; 14 Vin. Ab. 407; 3 Story, Constitution, Sec.
1780 3 Bl. Com. 261.
4. In summary proceedings before justices of the peace, the complaint
or accusation, at least when the proceedings relate to a penalty, is called
an information, and it is then taken down in writing and sworn to. As the
object is to limit the informer to a certain charge, in order that the
defendant may know what he has to defend, and the justice may limit the
evidence and his subsequent adjudication to the allegations in the
information, it follows that the substance of the particular complaint must
be stated and it must be sufficiently formal to contain all material
averments. 8 T. R. 286; 5 Barn. & Cres. 251; 11 E. C. L. R. 217; 2 Chit. Pr.
156. See 1 Wheat. R. 9.
INFORMATION IN THE NATURE OF A WRIT OF QUO WARRANTO, remedies. The name of a
proceeding against any one who usurps a franchise or office.
2. Informations of this kind are filed in the highest courts of
ordinary jurisdiction in the several states, either by the attorney-general,
of his own authority, or by the prosecutor, who is entitled, pro forma, to
use his name, as the case may be. 6 Cowen, R. 102, n.; 10 Mass. 290; 2 Dall.
112; 2 Halst. R. 101; 1 Rep Const. Ct. So. Car. 86; 3 Serg. & Rawle, 52; 15
Serg. & Rawle, 127: Though, in form, these informations are criminal, they
are, in their nature, but civil proceedings. 3 T. R. 484; Kyd on Corp. 439.
They are used to try a civil right, or to oust a wrongful possessor of an
office. 3 Dall. 490; 1 Serg. & Rawle. 385, For a full and satisfactory
statement of the law on this subject, the reader is referred to Angell on
Corp. ch. 20. p. 469. And see Quo Warranto.
INFORMATUS NON SUM, pleading, practice. I am not informed; a formal answer
made in court, or put upon record by an attorney when he has nothing to say
in defence of his client. Styles Reg. 372.
INFORMER. A person who informs or prefers an accusation against another,
whom he suspects of the violation of some penal statute.
2. When the informer is entitled to the penalty or part of the penalty,
upon the conviction of an offender, he is or is not a competent witness,
accordingly as the statute creating the penalty has or has not made him so.
1 Phil. Ev. 97; Rosc. Cr. Ev. 107; 5 Mass. R. 57; 1 Dall. 68; 1 Saund. 262,
c. Vide articles Prosecutor; Rewards.
INFORTIATUM, civil law. The second part of the Digest or Pandects of
Justinian, is called infortiatum: see Digest. This part, which commences
with the third title of the twenty-fourth book, and ends with the thirty-
eighth book, was thus called because it was the middle part, which, it was
said, was supported and fortified by the two others. Some have supposed that
this name was given to it, because it treats of successions, substitutions,
and other important matters, and being, more used than the others, produced
greater fees to the lawyers.
INFRA, Latin. Below, under, beneath, underneath. The opposite of supra,
above. Thus we say primo gradu est supra, pater, mater; infra, filius,
filia. In the first degree of kindred in the ascending line; above, is the
father and the mother; below, in the descending line, the son and daughter.
Inst. 3, 6, l.
2. In another, sense, this word signifies within; as, infra corpus
comitatus, within the body of the county; infra proesidia, within the
guards.
3. It also signifies during; as infra furorem during the madness.
INFRA ATATEM. Under age that is, during infancy, or before arriving at the
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full age of twenty-one years.
INFRA CORPUS COMITATUS. Within the body of the county.
2. The common law courts have jurisdiction infra corpus comitatus; the
admiralty, on the contrary, has no such jurisdiction, unless, indeed, the
tide water may extend within such county. 5 Howard's U. S. Rep. 441, 451.
INFRA DIGNITATEM CURAE. Below the dignity of the court. Example, in equity a
demurrer will lie to a bill on the ground of the triviality of the matter in
dispute, as being below the dignity of the court. See 4 John. Ch. 183; 4
Paige, 364; 4 Bouv. Inst. n. 4237.
INFRA HOSPITIUM. Within the inn when once a traveller's baggage comes infra
hospitium, that is, in the care and under the charge of the innkeeper, it is
at his risk. See Guest; Innkeeper.
INFRA PRAESIDIA. This term is used in relation to prizes, to signify that
they have been brought completely in the power of the captors, that is,
within the towns, camps, ports or fleet of the captors. Formerly, the rule
was, and perhaps still in some countries is, that the act of bringing a
prize infra praesidia, changed the property but the rule now established is,
that there must be a sentence of condemnation to effect this purpose. 1 Rob.
Adm. R. 134; 1 Kent's Com. 104; Chit. Law of Nat. 98; Ab. Sh. 14; Hugo,
Droit Romain, Sec. 90.
INFRACTION. The breach of a law or agreement; the violation of a compact. In
the French law this is the generic expression to designate all actions which
are punishable by the code of France.
INFUSION, med. jur. A pharmaceutical operation, which consists in pouring a
hot or cold fluid upon a substance, whose medical properties it is desired
to extract. Infusion is also used for the product of this operation.
Although infusion differs from decoction, (q.v.) they are said to be
ejusdem generis; and in the case of an indictment which charged the prisoner
with giving a decoction, and the evidence was that he had given an infusion,
the difference was held to be immaterial. 8 Camp. R. 74.
INGENUI, civ. law. Those freemen who were born free. Vicat, vocab.
2. They were a class of freemen, distinguished from those who, born
slaves, had afterwards legally obtained their freedom the latter were called
at various periods, sometimes liberti, sometimes libertini. An unjust or
illegal servitude did not prevent a man from being ingenuus.
INTEREST, estates. The right which a man has in a chattel real, and more
particularly in a future term. It is a word of less efficacy and extent than
estates, though, in legal understanding, an interest extends to estates,
rights and titles which a man has in or out of lands, so that by a grant of
his whole interest in land, a reversion as well as the fee simple shall
pass. Co. Litt. 345.
INTEREST, evidence. The benefit which a person has in the matter about to be
decided and which is in issue between the parties. By the term benefit is
here understood some pecuniary or other advantage, which if obtained, would
increase the, witness estate, or some loss, which would decrease it.
2. It is a general rule that a party who has an interest in the cause
cannot be a witness. It will be proper to consider this matter by taking a
brief view of the thing or subject in dispute, which is the object of the
interest; the quantity of interest; the quality of interest; when an
interested witness can be examined; when the interest must exist; how an
interested witness can be rendered competent.
3.-1. To be disqualified on the ground of interest, the witness must
gain or lose by the event of the cause, or the verdict must be lawful
evidence for or against him in another suit, or the record must be an
instrument of evidence for or against him. 3 John. Cas. 83; 1 Phil. Ev. 36;
Stark. Ev. pt. 4, p. 744. But an interest in the question does not
disqualify the witness. 1 Caines, 171; 4 John. 302; 5 John. 255; 1 Serg. &
R. 82, 36; 6 Binn. 266; 1 H. & M. 165, 168.
4.-2. The magnitude of the interest is altogether immaterial, even a
liability for the most trifling costs will be sufficient. 5 T. R. 174; 2
Vern. 317; 2 Greenl. 194; 11 John. 57.
5.-3. With regard to the quality, the interest must be legal, as
contradistinguished from mere prejudice or bias, arising from relationship,
friendship, or any of the numerous motives by which a witness may be
supposed to be influenced. Leach, 154; 2 St. Tr. 334, 891; 2 Hawk. ch. 46,
s. 25. It must be a present, certain, vested interest, and not uncertain and
contingent. Dougl. 134; 2 P. Wms. 287; 3 S. & R. 132; 4 Binn. 83; 2 Yeates,
200; 5 John. 256; 7 Mass. 25. And it must have been acquired without fraud.
3 Camp. 380; l M. & S. 9; 1 T. R. 37.
6.-4. To the general rule that interest renders a witness
incompetent, there are some exceptions. First. Although the witness may have
an interest, yet if his interest is equally strong on the other side, and no
more, the witness is reduced to a state of neutrality by an equipoise of
interest, and the objection to his testimony ceases. 7 T. R. 480, 481, n.; 1
Bibb, R. 298; 2 Mass. R. 108; 2 S. & R. 119; 6 Penn. St. Rep. 322.
7. Secondly. In some instances the law admits the testimony of one
interested, from the extreme necessity of the case; upon this ground the
servant of a tradesman is admitted to prove the delivery of goods and the
payment of money, without any release from the master. 4 T. R. 490; 2 Litt.
R. 27.
8.-5. The interest, to render the witness disqualified, must exist at
the time of his examination. A deposition made at a time when the witness
had no interest, may be read in evidence, although he has afterwards
acquired an interest. 1 Hoff. R. 21.
9.-6. The objection to incompetency on the ground of interest may be
removed by an extinguishment of that interest by means of a release,
executed either by the witness, when he would receive an advantage by his
testimony, or by those who have a claim upon him when his testimony would be
evidence of his liability. The objection may also be removed by payment.
Stark. Ev. pt. 4, p. 757. See Benth. Rationale of Jud. Ev. 628-692, where he
combats the established doctrines of the law, as to the exclusion on the
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ground of interest; and Balance.
INTEREST FOR MONEY, contracts. The compensation which is paid by the
borrower to the lender or b the debtor to the creditor for its use.
2. It is proposed to consider, 1. Who is bound to pay interest. 2. Who
is entitled to receive it. 3. On what claim it is allowed. 4. What interest
is allowed. 5. How it is computed. 6. When it will be barred. 7. Rate of
interest in the different states.
3.-1. Who is bound to pay interest 1. The contractor himself, who has
agreed, either expressly or by implication, to pay interest, is of course
bound to do so.
4.-2. Executors, administrators, assignees of bankrupts or of
insolvents, and trustees, who have kept money an unreasonable length of
time, and have made or who might have made it productive, are chargeable
with interest. 2 Ves. 85; 1 Bro. C. C. 359; Id. 375; 2 Ch. Co. 235; Chan.
Rep. 389; 1 Vern. 197; 2 Vern. 548; 3 Bro. C. C. 73; Id. 433; 4 Ves. 620; 1
Johns. Ch. R. 508; Id. 527, 535, 6; Id. 620; 1 Desaus. Ch. R. 193, n; Id.
208; 1 Wash. 2; 1 Binn. R. 194; 3 Munf. 198, Pl. 3: Id. 289, pl. 16; 1 Serg.
& Rawle, 241, 4 Desaus. Ch. Rep. 463; 5 Munf. 223, pl. 7, 8; 1 Ves. jr. 236;
Id. 452; Id. 89; 1 Atk. 90; see 1 Supp. to Ves. jr. 30; 11 Ves. 61; 15 Ves.
470; 1 Ball & Beat. 230; 1 Supp. to Ves. jr. 127, n. 3; 1 Jac. & Wall. 140;
3 Meriv. 43; 2 Bro. C.C. 156: 5 Ves. 839; 7 Ves. 152; 1 Jac. & Walk. 122; 1
Pick. 530; 13 Mass. R. 232; 3 Call, 538; 4 Hen. & Munf. 415; 2 Esp. N. P. C.
702; 2 Atk. 106; 2 Dall. 182; 4 Serg. & Rawle, 116; 1 Dall. 349; 3 Binn.
121. As to the distinction between executors and trustees, see Mr. Coxe's
note to Fellows v. Mitchell, 1 P. Wms. 241; 1 Eden, 857, and the cases there
collected.
5.-3. Tenant for life must pay interest on encumbrances on the
estate. 4 Ves. 33; 1 Vern. 404, n. by Raithby. In Pennsylvania the heir at
law is not bound to pay interest on a mortgage given by his ancestor.
6.-4. In Massachusetts a bank is liable, independently of the statute
of 1809, c. 87, to pay interest on their bills, if not paid when presented
for payment. 8 Mass. 445.
7.-5. Revenue officers must pay interest to the United States from
the time of receiving the money. 6 Binney's Rep. 266.
8.-1 Who are entitled to receive interest. 1. The lender upon an
express or implied contract.
9.-2. An executor was not allowed interest in a case where money due
to his testatrix was out at interest, and before money came to his hands, he
advanced his own in payment of debts of the testatrix. Vin. Ab. tit.
Interest, C. pl. 13.
10. In Massachusetts a trustee of property placed in his hands for
security, who was obliged to advance money to protect it, was allowed
interest at the compound rate. 16 Mass. 228.
11.-3. On what claims allowed. First. On express contracts. Secondly.
On implied contracts. And, thirdly. On legacies.
12. First. On express contracts. 1. When the debtor expressly undertakes
to pay interest, he or his personal representatives having assets are bound
to pay it. But if a party has accepted the principal, it has been determined
that he cannot recover interest in a separate action. 1 Esp. N. P. C. 110; 3
Johns. 220. See 1 Camp. 50; 1 Dall. 315; Stark. Ev. pt. iv. 787; 1 Hare &
Wall. Sel. Dec. 345.
13. Secondly. On implied contracts. 1. On money lent, or laid out for
another's use. Bunb. 119; 2 Bl. Rep. 761; S. C. 3 Wils. 205; 2 Burr. 1077; 5
Bro. Parl. Ca 71; 1 Ves. jr. 63; 1 Dall. 349; 1 Binn. 488; 2 Call, 102; 2
Hen. & Munf. 381; 1 Hayw. 4; 3 Caines' Rep. 226, 234, 238, 245; see 3 Johns.
Cas. 303; 9 Johns. 71; 3 Caines' Rep. 266; 1 Conn. Rep. 32; 7 Mass. 14; 1
Dall. 849; 6 Binn. R. 163; Stark. Ev. pt. iv. 789, n. (y), and (z); 11 Mass.
504; 1 Hare & Wall. Sel. Dec. 346.
14.-2. For goods sold and delivered, after the customary or stipulated
term of credit has expired. Doug. 376; 2 B. & P. 337; 4 Dall. 289; 2 Dall.
193; 6 Binn. 162; 1 Dall. 265, 349.
15.-3. On bills and notes. If payable at a future day certain, after
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due; if payable on demand, after. a demand made. Bunb. 119; 6 Mod. 138; 1
Str. 649; 2 Ld. Raym. 733; 2 Burr. 1081; 5 Ves. jr. 133; 15 Serg. & R. 264.
Where the terms of a promissory note are, that it shall be payable by
instalments, and on the failure of any instalment, the whole is to become
due, interest on the whole becomes payable from the first default. 4 Esp.
147. Where, by the terms of a bond, or a promissory note, interest is to be
paid annually, and the principal at a distant day, the interest may be
recovered before the principal is due. 1 Binn. 165; 2 Mass. 568; 3 Mass.
221.
16.-4. On an account stated, or other liquidated sum, whenever the
debtor knows precisely what he is to pay, and when he is to pay it. 2 Black.
Rep. 761; S. C. Wils. 205; 2 Ves. 365; 8 Bro. Parl. C. 561; 2 Burr. 1085; 5
Esp. N. P. C. 114; 2 Com. Contr. 207; Treat. Eq. lib. 5, c. 1, s. 4; 2 Fonb.
438; 1 Hayw. 173; 2 Cox, 219; 1 V. & B. 345; 1 Supp. to Ves. jr. 194; Stark.
Ev. pt. iv. 789, n. (a). But interest is not due for unliquidated damages,
or on a running account where the items are all on one side, unless
otherwise agreed upon. 1 Dall. 265; 4 Cowen, 496; 6 Cowen, 193; 5 Verm. 177;
2 Wend. 501; 1 Spears, 209; Rice, 21; 2 Blackf. 313; 1 Bibb, 443.
17.-5. On the arrears of an annuity secured by a specially. 14 Vin.
Ab. 458, pl. 8; 3 Atk. 579; 9 Watts, R. 530.
18.-6. On a deposit by a purchaser, which he is entitled to recover
back, paid either to a principal, or an auctioneer. Sugd. Vend. 327.; 3
Campb. 258; 5 Taunt. 625. Sed vide 4 Taunt. 334, 341.
19.-7. On purchase money, which has lain dead, where the vendor cannot
make a title. Sugd. Vend. 327.
20.-8. On purchase money remaining in purchaser's hands to pay off
encumbrances. 1 Sch. & Lef 134. See 1 Wash. 125; 5 Munf. 342; 6 Binn. 435.
21.-9. On judgment debts. 14 Vin. Abr. 458, pl. 15; 4 Dall. 251; 2
Ves. 162; 5 Binn. R. 61; Id. 220; 1 Harr. & John. 754; 3 Wend. 496; 4 Metc.
317; 1 Hare & Wall. Sel. Dec. 350. In Massachusetts the principal of a
judgment is recovered by execution; for the interest the plaintiff must
bring an action. 14 Mass. 239.
22.-10. On judgments affirmed in a higher court. 2 Burr. 1097; 2 Str.
931; 4 Burr. 2128; Dougl. 752, n. 3; 2 H. Bl. 267; Id. 284; 2 Camp. 428, n.;
3 Taunt. 503; 4 Taunt. 30.
23.-11. On money obtained by fraud, or where it has been wrongfully
detained. 9 Mass. 504; 1 Camp. 129; 3 Cowen, 426.
24.-12. On money paid by mistake, or recovered on a void execution. 1
Pick. 212; 9 Berg. & Rawle, 409
25.-13. Rent in arrear due by covenant bears interest, unless under
special circumstances, which may be recovered in action; 1 Yeates, 72; 6
Binn. 159; 4 Yeates, 264; but no distress can be made for such interest. 2
Binn. 246. Interest cannot, however, be recovered for arrears of rent
payable. in wheat. 1 Johns. 276. See 2 Call, 249; Id. 253; 3 Hen. & Munf.
463; 4 Hen. & Munf. 470; 5 Munf. 21.
26.-14. Where, from the course of dealing between the parties, a
promise to pay interest is implied. 1 Campb. 50; Id. 52 3 Bro. C. C. 436;
Kirby, 207.
27. Thirdly, Of interest on legacies. 1. On specific legacies. Interest
on specific legacies is to be calculated from the date of the death of
testator. 2 Ves. sen. 563; 6 Ves. 345 5 Binn. 475; 3 Munf. 10.
28.-2. A general legacy, when the time of payment is not named by the
testator, is not payable till the end of one year after testator's death, at
which time the interest commences to run. 1 Ves. jr. 366; 1 Sch. & Lef. 10;
5 Binn. 475; 13 Ves. 333; 1 Ves. 308 3 Ves. & Bea. 183. But where only the
interest is given, no payment will be due till the end of the second year,
when the interest will begin to run. 7 Ves. 89.
29.-3. Where a general legacy is given, and the time of payment is
named by the testator, interest is not allowed before the arrival of the
appointed period of payment, and that notwithstanding the legacies are
vested. Prec. in Chan. 837. But when that period arrives, the legatee will
be entitled, although the legacy be charged upon a dry reversion. 2 Atk.
108. See also Daniel's Rep. in Exch. 84; 3 Atk. 101; 3 Ves. 10; 4 Ves. 1; 4
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Bro. C. C. 149, n.; S. C. 1 Cox, l33. Where a legacy is given payable at a
future day with interest, and the legatee dies before it becomes payable,
the arrears of the interest up to the time of his death must be paid to his
personal representatives. McClel. Exch. Rep. 141. And a bequest of a sum to
be paid annually for life bears interest from the death of testator. 5 Binn.
475.
30.-4. Where the legatee is a child of the testator, or one towards
whom he has placed himself in loco parentis, the legacy bears interest from
the testator's death, whether it be particular or residuary; vested, but
payable It a future time, or contingent, if the child have no maintenance.
In that case the court will do what, in common presumption, the father would
have done, provide necessaries for the child. 2 P. Wms. 31; 3 Ves. 287; Id.
13; Bac. Abr. Legacies, K 3; Fonb. Eq. 431, n. j.; 1 Eq. Cas. Ab. 301, pl.
3; 3 Atk. 432; 1 Dick. Rep. 310; 2 Bro. C. C. 59; 2 Rand. Rep. 409. In case
of a child in ventre sa mire, at the time of the father's decease, interest
is allowed only from its birth. 2 Cox, 425. Where maintenance or interest is
given by the will, and the rate specified, the legatee will not, in general,
be entitled to claim more than the maintenance or rate specified. 3 Atk.
697, 716 3 Ves. 286, n. and see further, as to interest in cases of legacies
to children, 15 Ves. 363; 1 Bro. C. C,. 267: 4 Madd. R. 275; 1 Swanst. 553;
1 P. Wms. 783; 1 Vern. 251; 3 Vesey & Beames, 183.
31.-5. Interest is not allowed by way of maintenance to any other
person than the legitimate children of the testator; 3 Ves. 10; 4 Ves. 1;
unless the testator has put himself in loco parentis. 1. Sch. & Lef. 5, 6. A
wife; 15 Ves. 301; a niece; 3 Ves. 10; a grandchild; 15 Ves. 301; 6 Ves.
546; 12 Ves. 3; 1 Cox, 133; are therefore not entitled to interest by way of
maintenance. Nor is a legitimate child entitled to such interest if he have
a maintenance; although it may be less than the amount of the interest of
the legacy. 1 Scho. & Lef. 5: 3 Ves. 17. Sed vide 4 John. Ch. Rep. 103; 2
Rop. Leg. 202.
32.-6. Where an intention though not expressed is fairly inferable
from the will, interest will be allowed. 1 Swanst. 561, note; Coop. 143.
33.-7. Interest is not allowed for maintenance, although given by
immediate bequest for maintenance, if the parent of the legatee, who is
under moral obligation to provide for him, be of sufficient ability, so that
the interest will accumulate for the child's benefit, until the principal
becomes payable. 3 Atk. 399; 3 Bro. C. C. 416; 1 Bro. C. C. 386; 3 Bro. C.
C. 60. But to this rule there are some exceptions. 3 Ves. 730; 4 Bro. C. C.
223; 4 Madd. 275, 289; 4 Ves. 498.
34.-8. Where a fund, particular or residuary, is given upon a
contingency, the intermediate interest undisposed of, that is to say, the
intermediate interest between the testator's death, if there be no previous
legatee for life, or, if there be, between the death of the previous taker
and the happening of the contingency, will sink into the residue for the
benefit of the next of kin or executor of the testator, if not bequeathed by
him; but if not disposed of, for the benefit of his residuary legatee. 1
Bro. C. C. 57; 4 Bro. C. C. 114; Meriv. 384; 2 Atk. 329; Forr. 145; 2 Rop.
Leg. 224.
35.-9. Where a legacy is given by immediate bequest whether such
legacy be particular or residuary, and there is a condition to divest it
upon the death of the legatee under twenty-one, or upon the happening of
some other event, with a limitation over, and the legatee dies before
twenty-one, or before such other event happens, which nevertheless does take
place, yet as the legacy was payable at the end, of a year after the
testator's death, the legatee's representatives, and not the legatee over,
will be entitled to the interest which accrued during the legatee's life,
until the happening of the event which was to divest the legacy. 1 P. Wms.
500; 2 P. Wms. 504; Ambl. 448; 5 Ves. 335; Id. 522.
36.-10. Where a residue is given, so as to be vested but not payable
at the end of the year from the testator's death, but upon the legatee's
attaining twenty-one, or upon any other contingency, and with a bequest over
divesting the legacy, upon the legatee's dying under age, or upon the
happening of the contingency, then the legatee's representatives in the
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former case, and the legatee himself in the latter, shall be entitled to the
interest that became due, during the legatee's life, or until the happening
of the contingency; 2 P. Wms. 419; 1 Bro. C. C. 81; Id. 335; 3 Meriv. 335.
37.-11. Where a residue of personal estate is given, generally, to one
for life with remainder over, and no mention is made by the testator
respecting the interest, nor any intention to the contrary to be collected
from the will, the rule appears to be now settled that the person taking for
life is entitled to interest from the death of the testator, on such part of
the residue, bearing interest, as is not necessary for, the payment of
debts. And it is immaterial whether the residue is only given generally, or
directed to be laid out, with all convenient speed, in funds or securities,
or to be laid out in lands. See 6 Ves. 520; 9 Ves. 549, 553; 2 Rop. Leg.
234; 9 Ves. 89.
38.-12. But where a residue is directed to be laid out in land, to be
settled on one for life, with remainder over, and the testator directs the
interest to accumulate in the meantime, until the money is laid out in
lands, or otherwise invested on security, the accumulation shall cease at
the end of one year from the testator's death, and from that period. the
tenant for life shall be to the interest. 6 Ves. 520; 7 Ves. 95; 6 Ves. 528;
Id. 529; 2 Sim. & Stu. 396.
39.-13. Where no time of payment is mentioned by the testator,
annuities are considered as commencing from the death of the testator; and
consequently the first payment will be due at the end of the year from that
event if, therefore, it be not made then, interest, in those cases wherein
it is allowed at all, must be computed from that period. 2 Rop. Leg. 249; 5
Binn. 475. See 6 Mass. 37; 1 Hare & Wall. Sel. Dec. 356.
40.-4. As to the quantum or amount of interest allowed. 1. During what
time. 2. Simple interest. 3. Compound interest. 4. In what cases given
beyond the penalty of a bond. 5. When foreign interest is allowed.
41. First. During what time. 1. In actions for money had and received,
interest is allowed, in Massachusetts, from the time of serving the writ. 1
Mass. 436. On debts payable on demand, interest is payable only from the
demand. Addis. 137. See 12 Mass. 4. The words "with interest for the same,"
bear interest from date. Addis. 323-4; 1 Stark. N. P. C. 452; Id. 507.
42.-2. The mere circumstance of war existing between two nations, is
not a sufficient reason for abating interest on debts due by the subjects of
one belligerent to another. 1 Peters' C. C. R. 524. But a prohibition of all
intercourse with an enemy, during war, furnishes a sound reason for the
abatement of interest until the return of peace. Id. See,, on this subject,
2 Dall. 132; 2 Dall. 102; 4 Dall. 286; 1 Wash. 172; 1 Call 194; 3 Wash. C.
C. R. 396; 8 Serg. & Rawle, 103; Post. Sec. 7.
43. Secondly. Simple interest. 1. Interest upon interest is not allowed
except in special cases 1 Eq. Cas. Ab. 287; Fonb. Eq. b. 1, c. Sec. 4, note
a; U. S. Dig. tit. Accounts, IV.; and the uniform current of decisions is
against it, as being a hard, oppressive exaction, and tending to usury. 1
Johns. Ch. R. 14; Cam. & Norw. Rep. 361. By the civil law, interest could
not be demanded beyond the principal sum, and payments exceeding that
amount, were applied to the extinguishment of the principal. Ridley's View
of the Civil, &c. Law, 84; Authentics, 9th Coll.
44. Thirdly. Compound interest. 1. Where a partner has overdrawn the
partnership funds, and refuses, when called upon to account, to disclose the
profits, recourse would be had to compound interest as a substitute for the
profits he might reasonably be supposed to have made. 2 Johns. Ch. R. 213.
45.-2. When executors, administrators, or trustees, convert the trust
money to their own use, or employ it in business or trade, they are
chargeable with compound interest. 1 Johns. Ch. R. 620.
46.-3. In an action to recover the annual interest due on a promissory
note, interest will be allowed on each year's interest until paid. 2 Mass.
568; 8 Mass. 455. See, as to charging compound interest, the following
cases: 1 Johns. Ch. Rep. 550; Cam. & Norw. 361; 1 Binn. 165; 4 Yeates' 220;
1 Hen. & Munf. 4; 1 Vin. Abr. 457, tit. Interest, C; Com. Dig. Chancery, 3 S
3; 3 Hen. & Munf. 89; 1 Hare & Wall. Sel. Dec. 371. An infant's contract to
pay interest on interest, after it has accrued, will be binding upon him,
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when it is for his benefit. 1 Eq. Cas. Ab. 286; 1 Atk. 489; 3 Atk. 613.
Newl. Contr. 2.
47. Fourthly. When given beyond the Penalty of a bond. 1. It is a
general rule that the penalty of a bond limits the amount of the recovery. 2
T. R. 388. But, in some cases, the interest is recoverable beyond the amount
of the penalty. The recovery depends on principles of law, and not on the
arbitrary discretion of a jury. 3 Caines' Rep. 49.
48.-2. The exceptions are, where the bond is to account for moneys to
be received 2 T. R. 388; where the plaintiff is kept out of his money by
writs of error; 2 Burr. 1094; 2 Evans' Poth. 101-2 or delayed by injunction;
1 Vern. 349; 16 Vin. Abr. 303; if the recovery of the debt be delayed by the
obligor; 6 Ves. 92; 1 Vern. 349; Show. P. C. 15; if extraordinary emoluments
are derived from holding the money; 2 Bro. P. C. 251; or the bond is taken
only as a collateral security; 2 Bro. P. C. 333; or the action be on a
judgment recovered on a bond. 1 East, R. 486. See, also, 4 Day's Cas. 30; 3
Caines' R. 49; 1 Taunt. 218; 1 Mass. 308; Com. Dig. Chancery, 3 S 2; Vin.
Abr. Interest, E.
49.-3. But these exceptions do not obtain in the administration of the
debtor's assets, where his other creditors might be injured by allowing the
bond to be rated beyond the penalty. 5 Ves. 329; See Vin. Abr. Interest, C,
pl. 5.
50. Fifthly. When foreign interest is allowed. 1. The rate of interest
allowed by law where the contract is made, may, in general, be recovered;
hence, where a note was given in China, payable eighteen months after date,
without any stipulation respecting interest, the court allowed the Chinese
interest of one per cent. per mouth from the expiration of the eighteen
months. 1 Wash. C. C. R. 253.
51.-2. If a citizen of another state advance money there, for the
benefit of a citizen of the state of Massachusetts, which the latter is
liable to reimburse, the former shall recover interest, at the rate
established by the laws of the place where he lives. 12 Mass. 4. See,
further, 1 Eq. Cas. Ab. 289; 1 P. Wms. 395; 2 Bro. C. C. 3; 14 Vin. Abr.
460, tit. Interest, F.
52.-5. How computed. 1. In casting interest on notes, bonds, &c., upon
which partial payments have been made, every payment is to be first applied
to keep down the interest, but the interest is: never allowed to form a part
of the principal so as to carry interest. 17 Mass. R. 417; 1 Dall. 378.
53.-2. When a partial payment exceeds the amount of interest due when
it is made, it is correct to compute the interest to the time of the first,
payment, add it to the principal, subtract the payment, cast interest on the
remainder to the time of the second payment, add it to the remainder, and
subtract the second payment, and in like manner from one payment to another,
until the time of judgment. 1 Pick. 194; 4 Hen. & Munf. 431; 8 Serg. &
Rawle' 458; 2 Wash. C. C. R. 167. See 3 Wash. C. C. R. 350; Id. 396.
54.-3. Where a partial payment is made before the debt is due, it
cannot be apportioned, part to the debt and part to the interest. As, if
there be a bond for one hundred dollars, payable in one year, and, at the
expiration of six months fifty dollars be paid in. This payment shall not be
apportioned part to the principal and part to the interest, but at the end
of the year, interest shall be charged on the whole sum, and the obligor
shall receive credit for the interest of fifty dollars for six mouths. 1
Dall. 124.
55.-6. When interest will be barred. 1. When the money due is tendered
to the person entitled to it, and he refuses to receive it, the interest
ceases. 3 Campb. 296. Vide 8 East, 168; 3 Binn. 295.
56.-2. Where the plaintiff was absent in foreign parts, beyond seas,
evidence of that fact may be given in evidence to the jury on the plea of
payment, in order to extinguish the interest during such absence. 1 Call,
133. But see 9 Serg. & Rawle, 263.
57.-3. Whenever the law prohibits the payment of the principal,
interest, during the prohibition, is not demandable. 2 Dall. 102; 1 Peters'
C. C. R. 524. See, also, 2 Dall. 132; 4 Dall. 286.
58.-4. If the plaintiff has accepted the principal, he cannot recover
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the interest in a separate action. 1 Esp. N. P. C. 110; 3 Johns. 229. See 14
Wend. 116.
59.- 7. Rate of interest allowed by law in the different states.
Alabama. Eight per centum per annum is allowed. Notes not exceeding one
dollar bear interest at the rate of one hundred per centum per annum. Some
of the bank charters prohibit certain banks from charging more than six per
cent. upon bills of exchange, and notes negotiable at the bank, not having
more than six months to run; and, over six and under nine, not more than
seven per cent. and over nine months, to charge not more than eight per
cent. Aiken's Dig. 236.
60. Arkansas. Six per centum per annum is the legal rate of interest;
but the parties may agree in writing for the payment of interest not
exceeding ten per centum per annum, on money due and to become due on any
contract, whether under seal or not. Rev. St. c. 80, s. 1, 2. Contracts
where a greater amount is reserved are declared to be void. Id. s. 7. But
this provision will not affect an innocent endorsee for a valuable
consideration. Id. s. 8.
61. Connecticut. Six per centum is the amount allowed by law.
62. Delaware. The legal amount of interest allowed in this state is at
the rate of six per centum per annum. Laws of Del. 314.
63. Georgia. Eight per centum per annum interest is allowed on all
liquidated demands. 1 Laws of Geo. 270; 4 Id. 488; Prince's Dig. 294, 295.
64. Illinois. Six per centum per annum is the legal interest allowed
when there is no contract, but by agreement the parties may fix a greater
rate. 3 Griff. L. Reg. 423.
65. Indiana. Six per centum per annum is the rate fixed by law, except
in Union county. On the following funds loaned out by the state, namely,
Sinking, Surplus, Revenue, Saline, and College funds, seven per cent.; on
the Common School Fund, eight per cent. Act of January 31, 1842.
66. Kentucky. Six per centum per annum is allowed by law. There is no
provision in favor of any kind of loan. See Sessions Acts, 1818, p. 707.
67. Louisiana. The Civil Code provides, art. 2895, as follows: Interest
is either legal or conventional. Legal interest is fixed at the following,
rates, to wit: at five per cent. on all sums which are the object of a
judicial demand, whence this is called judicial interest; and Rums
discounted by banks, at the rate established by their charters. The amount
of conventional interest cannot exceed ten per cent. The same must be fixed
in writing, and the testimonial proof of it is not admitted. See, also, art.
1930 to 1939.
68. Maine. Six per centum per annum is the legal interest, and any
contract for more is voidable as to the excess, except in case of letting
cattle, and other usages of a like nature, in practice among farmers, or
maritime contracts among merchants, as bottomry, insurance, or course of
exchange, as has been heretofore practiced. Rev. St. 4, c. 69, Sec. 1, 4.
69. Maryland. Six per centum per annum, is the. amount limited by law,
in all cases.
70. Massachusetts. The interest of money shall continue to be at the
rate of dollars, and no more, upon one hundred dollars for a year; and at
the same rate for a greater or less sum, and for a longer or shorter time.
Rev. Stat. c. 35, s. 1.
71. Michigan. Seven per centum is the legal rate of interest; but on
stipulation in writing, interest is allowed to any amount not exceeding ten
per cent. on loans of money, but only on such loans. Rev. St. 160, 161.
72. Mississippi. The legal interest is six per centum; but on all bonds,
notes, or contracts in writing, signed by the debtor for the bona fide loan
of money, expressing therein the rate of interest fairly agreed on between
the parties for the use of money so loaned, eight per cent. interest is
allowed. Laws of 1842.
73. Missouri. When no contract is made as to interest, six per centum
per annum is allowed. But the parties may agree to pay any higher rate, not
exceeding ten per cent. Rev. Code, Sec. 1, p. 383.
74. New Hampshire. No person shall take interest for the loan of money,
wares, or merchandise, or any other personal estate whatsoever, above the
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value of six pounds for the use or forbearance of one hundred pounds for a
year, and after that rate for a greater or lesser sum, or for a longer or
shorter time. Act of February 12, 1791, s. 1. Provided, that nothing in this
act shall extend to the letting of cattle, or other usages of a like nature,
in practice among farmers, or to maritime contracts among merchants as
bottomry, insurance, or course of exchange, as hath been heretofore used.
Id. s. 2.
75. New Jersey. Six per centum per annum is the interest allowed by law
for the loan of money, without any exception. Statute of December 5, 1823,
Harr. Comp. 45.
76. New York. The rate is fixed at seven per centum per annum. Rev.
Stat. part 2, c. 4, t. 3, s. 1. Moneyed institutions, subject to the safety-
fund act, are entitled to receive the legal interest established, or which
may thereafter be established by the laws of this state, on all loans made
by them, or notes, or bills, by them severally discounted or received in the
ordinary course of business; but on all notes or bills by them discounted or
received in the ordinary course of business, which shall be matured in
sixty-three days from the time of such discount, the said moneyed
corporations shall not take or receive more than at the rate of six per
centum per annum in advance. 2 Rev. Stat. p. 612.
77. North Carolina. Six per centum per annum is the interest allowed by
law. The banks are allowed to take the interest off at the time of making a
discount.
78. Ohio. The legal rate of interest on all contracts, judgments or
decrees in chancery, is six per centum. per annum, and no more. 29 Ohio
Stat. 451; Swan's Coll. Laws, 465. A contract to pay a higher rate is good
for principal and interest, and void for the excess. Banks are bound to pay
twelve per cent. interest on all their notes during a suspension of specie
payment. 37 Acts 30, Act of February 25, 183,9, Swan's Coll. 129.
79. Pennsylvania. Interest is allowed at the rate of six per centum per
annum for the loan or use of money or other commodities. Act of March 2,
1723. And lawful interest is allowed on judgments. Act of 1700, 1 Smith's L.
of Penn. 12. See 6 Watts, 53; 12 S. & R. 47; 13 S. & R. 221; 4 Whart. 221; 6
Binn. 435; 1 Dall. 378; 1 Dall. 407; 2 Dall. 92; 1 S. & R. 176; 1 Binn. 488;
2 Pet. 538; 8 Wheat. 355.
80. Rhode Island. Six per centum is allowed for interest on loans of
money. 3 Griff. Law Reg. 116.
81. South Carolina. Seven per centum per annum, or at that rate, is
allowed for interest. 4 Cooper's Stat. of S. C. 364. When more is reserved,
the amount lent and interest may be recovered. 6 Id. 409.
82. Tennessee. The interest allowed by law is six per centum per annum.
When more is charged it is not recoverable, but the principal and legal
interest may be recovered. Act of 1835, c. 50, Car. & Nich. Comp. 406, 407.
83. Vermont. Six per centum per annum is the legal interest. If more be
charged and paid, it may be recovered back in an action of assumpsit. But
these provisions do not extend "to the letting of cattle and other, usages
of a like nature among farmers, or maritime contracts, bottomry or course of
exchange, as has been customary." Rev. St. c. 72, ss. 3, 4, 5.
84. Virginia. Interest is allowed at the rate of six per centum per
annum. Act of Nov. 22 1796, 1 Rev. Code. ch. 209. Vide 1 Hare & Wall. Sel.
Dec. 344, 373.
INTEREST, MARITIME. By maritime interest is understood the profit of money
lent on bottomry or respondentia, which is allowed to be greater than simple
interest because the capital of the lender is put in jeopardy. There is no
limit by law as to the amount which may be charged for maritime interest. It
is fixed generally by the agreement of the parties.
2. The French writers employ a variety of terms in order to distinguish
if according to the nature of the case. They call it interest, when it is
stipulated to be paid by the month, or at other stated periods. It is a
premium, when a gross sum is to be paid at the end of the voyage, and here
the risk is the principal object they have in view. When the sum is a per
centage on the money lent, they call it exchange, considering it in the
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light of money lent at one place to be returned in another, with a
difference in amount between the sum borrowed and that which is paid,
arising from the difference of time and place. When they intend to combine
these various shades into one general denomination, they make use of the
term maritime profit, to convey their meaning. Hall on Mar. Loans, 56, n.
INTERIM. In the mean time; in the meanwhile. For example, one appointed
between the time that a person is made bankrupt, to act in the place of the
assignee until the assignee shall be appointed, is an assignee ad interim. 2
Bell's Com. 355.
INTERLINEATION, contracts, evidence. Writing between two lines.
2. Interlineations are made either before or after the execution of an
instrument. Those made before should be noted previously to its execution;
those made after are made either by the party in whose favor they are, or by
strangers.
3. When made by the party himself, whether the interlineation be
material or immaterial, they render the deed void; 1 Gall. Rep. 71; unless
made with the consent of the opposite party. Vide 11 Co. 27 a: 9 Mass. Rep.
307; 15 Johns. R. 293; 1 Dall. R. 57; 1 Halst. R. 215; but see 1 Pet. C. C.
R. 364; 5 Har. & John; 41; 2 L. R. 290; 2 Ch. R. 410; 4 Bing. R. 123; Fitzg.
207, 223; Cov. on Conv. Ev. 22; 2 Barr. 191.
4. When the interlineation is made by a stranger, if it be immaterial,
it will not vitiate the instrument, but if it be material, it will in
general avoid it. Vide Cruise, Dig. tit. 32, c. 26, s. 8; Com. Dig. Fait, F
1.
5. The ancient rule, which is still said to be in force, is, that an
alteration shall be presumed to have been made before the execution of the
instrument. Vin. Ab. Evidence, Q, a 2; Id. Faits, U; 1 Swift's Syst. 310; 6
Wheat. R. 481; 1 Halst. 215. But other cases hold the presumption to be that
a material interlineation was made after the execution of an instrument,
unless the contrary be proved. 1 Dall. 67. This doctrine corresponds nearly
with the rules of the canon law on this subject. The canonists have examined
it with care. Vide 18 Pick. R. 172; Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 4,
n. 115, and article Erasure.
INTERLOCUTORY. This word is applied to signify something which is done
between the commencement and the end of a suit or action which decides some
point or matter, which however is not a final decision of the matter in
issue; as, interlocutory judgments, or decrees or orders. Vide Judgment,
interlocutory.
INTERLOPERS. Persons who interrupt the trade of a company of merchants, by
pursuing the same business with them in the same place, without lawful
authority.
INTERNATIONAL. That which pertains to intercourse between nations.
International law is that which regulates the intercourse between, or the
relative rights of nations.
INTERNUNCIO. A minister of a second order, charged with the affairs of the
court of Rome, where that court has no nuncio under that title.
IRREGULAR DEPOSIT. This name is given to that kind of deposit, where the
thing deposited need not be returned; as, where a man deposits, in the usual
way, money in bank for safe keeping, for in this case the title to the
identical money becomes vested in the bank, and he receives in its place
other money.
IRREGULARITY, practice. The doing or not doing that in the conduct of a suit
at law, which, conformably with the practice of the court, ought or ought
not to be done.
2. A party entitled to complain of irregularity, should except to it
previously to taking any step by him in the cause; Lofft. 323, 333; because
the taking of any such step is a waiver of any irregularity. 1 Bos. k Phil.
342; 2 Smith's R. 391; 1 Taunt. R. 58; 2 Taunt. R. 243; 3 East, R. 547; 2
New R. 509; 2 Wils. R. 380.
3. The court will, on motion, set aside proceedings for irregularity.
On setting aside a judgment and execution for irregularity, they have power
to impose terms on the defendant, and will restrain him from bringing an
action of trespass, unless a strong case of damage appears. 1 Chit. R. 133,
n.; and see Baldw. R. 246. Vide 3 Chit. Pr. 509; and Regular and Irregular
Process.
4. In the canon law, this term is used to signify any impediment which
prevents a man from taking holy orders.
IRRELEVANT EVIDENCE. That which does not support the issue, and which) of
course, must be excluded. See Relevant.
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IRREPLEVISABLE, practice. This term is applied to those things which cannot
legally be replevied. For example, in Pennsylvania no goods seized in
execution or for taxes, can be replevied.
IRRESISTIBLE FORCE. This term is applied to such an interposition of human
agency, as is, from its nature and power, absolutely uncontrollable; as the
inroads of a hostile army. Story on Bailm. Sec. 25; Lois des Batim. pt. 2.
c. 2, Sec. 1. It differs from inevitable accident; (q. v.) the latter being
the effect of physical causes, as, lightning, storms, and the like.
IRREVOCABLE. That which cannot be revoked.
2. A will may at all times be revoked by the same person who made it,
he having a disposing mind; but the moment the testator is rendered
incapable to make a will he can no longer revoke a former will, because he
wants a disposing mind. Letters of attorney are generally revocable; but
when made for a valuable consideration they become irrevocable. 7 Ves. jr.
28; 1 Caines' Cas. in Er. 16; Bac. Ab. Authority, E. Vide Authority;
License; Revocation.
IRRIGATION. The act of wetting or moistening the ground by artificial means.
2. The owner of land over which there is a current stream, is, as such,
the proprietor of the current. 4 Mason's R. 400. It seems the riparian
proprietor may avail himself of the river for irrigation, provided the river
be not thereby materially lessened, and the water absorbed be imperceptible
or trifling. Ang. W. C. 34; and vide 1 Root's R. 535; 8 Greenl. R. 266; 2
Conn. R. 584; 2 Swift's Syst. 87; 7 Mass. R. 136; 13 Mass. R. 420; 1 Swift's
Dig. 111; 5 Pick. R. 175; 9 Pick. 59; 6 Bing. R. 379; 5 Esp. R. 56; 2 Conn.
R. 584; Ham. N. P. 199; 2 Chit. Bl. Com. 403, n. 7; 22 Vin. Ab. 525; 1 Vin.
Ab. 657; Bac. Ab. Action on the case, F. The French law coincides with our
own. 1 Lois des Batimens, sect. 1, art. 3, page 21.
IRRITANCY. In Scotland, it is the happening of a condition or event by which
a charter, contract or other deed, to which a clause irritant is annexed,
becomes void. Ersk. Inst. B. 2, t. 5, n. 25. Irritancy is a kind of
forfeiture. It is legal or conventional. Burt. Man. P. R. 29 8.
ISLAND. A piece of land surrounded by water.
2. Islands are in the sea or in rivers. Those in the sea are either in
the open sea, or within the boundary of some country.
3. When new islands arise in the open sea, they belong to the first
occupant: but when they are newly formed so near the shore as to be within
the boundary of some state, they belong to that state.
4. Islands which arise in rivets when in the middle of the stream,
belong in equal parts to the riparian proprietors when they arise. mostly on
one side, they will belong to the riparian owners up to the middle of the
stream. Bract. lib. 2, c. 2; Fleta, lib. 3, c. 2, s. 6; 2 Bl. 261; 1 Swift's
Dig. 111; Schult. Aq. R. 117; Woolr. on Waters: 38; 4 Pick. R. 268; Dougl.
R. 441; 10 Wend. 260; 14 S. & R. 1. For the law of Louisiana, see Civil
Code, art. 505, 507.
5. The doctrine of the common law on this subject, founded on reason,
seems to have been borrowed from the civil law. Vide Inst. 2, 1, 22; Dig.
41, 1, 7; Code, 7; 41, 1.
ISSINT. This is a Norman French word which signifies thus, so. It has given
the name to a part of a plea, because when pleas were in that language this
word was used. In actions founded on deeds, the defendant may, instead of
pleading non est factum in the common form, allege any special matter which
admits the execution of the writing in question, but which, nevertheless,
shows that it is not in law his deed; and may conclude with and so it is not
his deed; as that the writing was delivered to A B as an escrow, to be
delivered over on certain conditions, which have not been complied with,
"and so it is not his act;" or that at, the time of making the writing, the
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defendant was a feme covert,: and so it is not her act." Bac. Ab. Pleas, H
3, I 2; Gould on Pl. c. 6, part 1, Sec. 64.
2. An example of this form of plea which is sometimes called the
special general issue, occurs in 4 Rawle, Rep. 83, 84.
ISSUABLE, practice. Leading or tending to an issue. An issuable plea is one
upon which the plaintiff can take issue and proceed to trial.
ISSUE, kindred. This term is of very extensive import, in its most enlarged
signification, and includes all persons who have descended from a common
ancestor. 17 Ves. 481; 19. Ves. 547; 3 Ves. 257; 1 Rop. Leg. 88 and see
Wilmot's Notes, 314, 321. But when this word is used in a will, in order to
give effect to the testator's intention it will be construed in a more
restricted sense than its legal import conveys. 7 Ves. 522; 19 Ves. 73; 1
Rop. Leg. 90. Vide Bac. Ab. Curtesy of England, D; 8 Com. Dig. 473; and
article Legatee, II. Sec. 4.
ISSUE, pleading. An issue, in pleading, is defined to be a single, certain
and material point issuing out of the allegations of the parties, and
consisting, regularly, of an affirmative and negative. In common parlance,
issue also signifies the entry of the pleadings. 1 Chit. Pl. 630.
2. Issues are material when properly formed on some material point,
which will decide the question in dispute between the parties; and
immaterial, when formed on some immaterial fact, which though found by the
verdict will not determine the merits of the cause, and would leave the
court at a loss how to give judgment. 2 Saund. 319, n. 6.
3. Issues are also divided into issues in law and issues in fact. 1. An
issue in law admits all the facts and rests simply upon a question of, law.
It is said to consist of a single point, but by this it must be understood
that such issue involves, necessarily, only a single rule or principle of
law, or that it brings into question the legal sufficiency of a single fact
only. It is meant that such an issue reduces the whole controversy to the
single question, whether the facts confessed by the issue are sufficient in
law to maintain the action or defence of the party who alleged them. 2. An
issue in fact, is one in which the parties disagree as to their existence,
one affirming they exist, and the other denying it. By the common law, every
issue in fact, subject to some exceptions, which are noticed below, must
consist of a direct affirmative allegation on the one side, and of a direct
negative on the other. Co. Litt. 126, a; Bac. Ab. Pleas, &c. G 1; 5 Pet.
149; 2 Black. R. 1312; 8 T. R. 278. But it has been holden that when the
defendant pleaded that he was born in France, and the plaintiff replied that
he was born in England, it was sufficient to form a good issue. 1 Wils. 6; 2
Str. 1177. In this case, it will be observed, there were two affirmatives,
and the ground upon which the issue was holden to be good is that the second
affirmative is so contrary to the first, that the first cannot in any degree
be true. The exceptions above mentioned to the rule that a direct
affirmative and a direct negative are required, are the following: 1st. The
general issue upon a writ of right is formed by two affirmatives: the
demandant, on one side, avers that he has greater right than the tenant;
and, on the other, that the tenant has a greater right than the demandant.
This issue is called the mise. (q. v.) Lawes, Pl. 232; 3 Chit. Pl. 652: 3
Bl. Com. 195, 305. 2d. In an action of dower, the court merely demands the
third part of acres of land, &c., as the dower of the demandant of the
endowment of A B, heretofore the husband, &c., and the general issue is,
that A B was not seised of such estate, &c., and that he could not endow the
demandant thereof, &c. 2 Saund. 329, 330. This mode of negation, instead of
being direct, is merely argumentative, and argumentativeness is not
generally allowed in pleading.
4. Issues in fact are divided into general issues, special issues, and
common issues.
5. The general issue denies in direct terms the whole declaration; as
in personal actions, where the defendant pleads nil debet, that he owes the
plaintiff nothing; or non culpabilis, that he is not guilty of the facts
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alleged in the declaration; or in real actions, where the defendant pleads
nul tort, no wrong done or nul disseisin, no disseisin committed. These
pleas, and the like, are called general issues, because, by importing an
absolute and general denial of all the matters alleged in the declaration,
they at once put them all in issue.
6. Formerly the general issue was seldom pleaded, except where the
defendant meant wholly to deny the charge alleged against him for when he
meant to avoid and justify the charge, it was usual for him to set forth the
particular ground of his defence as, a special plea, which appears to have
been necessary' to apprize the court and the plaintiff of the particular
nature and circumstances of the defendant's case, and was originally
intended to keep the law and the fact distinct. And even now it is an
invariable rule, that every defence which cannot be, specially pleaded, may
be given in evidence at the trial upon the general issue, so the defendant
is in many cases obliged to plead the particular circumstances of his
defence specially, and cannot give them in evidence on that general plea.
But the science of special pleading having been frequently perverted to the
purposes of chicane and delay, the courts have in some instances, and the
legislature in others, permitted the general issue to be pleaded, and
special matter to be given in evidence under it at the trial, which at once
includes the facts, the equity, and the law of the case. 3 Bl. Com. 305, 6;
3 Green. Ev. Sec. 9.
7. The special issue is when the defendant takes issue upon only one
substantial part of the declaration, and rests the weight of his case upon
it; he is then said to take a special issue, in contradistinction to tho
general issue, which denies and puts in issue the whole of the declaration.
Com. Dig. Pleader, R 1, 2.
8. Common issue is the name given to that which is formed on the single
plea of non est factum, when pleaded to an action of covenant broken. This
is so called, because to an action of covenant broken there can properly be
no general issue, since the plea of non est fadum, which denies the deed
only, and not the breach, does not put the whole declaration in issue. 1
Chit. Pl. 482; Lawes on Pl. 113; Gould, Pl. c. 6, part 1, Sec. 7 and Sec.
10, 2.
9. Issues are formal and informal.
10. A formal issue is one which is formed according to the rules
required by law, in a proper and artificial manner.
11. An informal issue is one which arises when a material allegation is
traversed in an improper or artificial manner. Ab. Pleas, &c., G 2, N 5; 2
Saund. 319, a, n. 6. The defect is cured by verdict., by the statute of 32
H. VIII. c. 30.
12. Issues are also divided into actual and feigned issues.
13. An actual issue is one formed in an action brought in the regular
manner, for the purpose of trying a question of right between the parties.
14. A feigned issue is one directed by a court, generally by a court
exercising equitable powers, for the purpose of trying before a jury a
matter in dispute between the parties. When in a court of equity any matter
of fact is strongly contested, the court usually directs the matter to be
tried by a jury, especially such important facts as the validity of a will,
or whether A is the heir at law of B.
15. But as no jury is summoned to attend this court, the fact is usually
directed to be tried in a court of law upon a feigned issue. For this
purpose an action is brought in which the plaintiff by a fiction dares that
he laid a wager for a sum of money with the defendant, for example, that a
certain paper is the last will and testament of A; then avers it is his
will, and therefore demands the money; the defendant admits the wager but
avers that, it is not the will of A, and thereupon that. issue is joined,
which is directed out of chancery to be tried; and thus the verdict of the
jurors at law determines the fact in the court of equity.
16. These feigned issues are frequently used in the courts of law, by
consent of the parties, to determine some disputed rights without the
formality of pleading, and by this practice much time and expense are saved
in the decision of a cause. 3 Bl. Com. 452. The consent of the court must
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also be previously obtained; for the trial of a feigned issue without such
consent is a contempt, which will authorize the court to order the
proceeding to be stayed, and punish the parties engaged. 4 T. R. 402. See
Fictitious action. See, generally Bouv. Inst. Index, h. t.
ISSUE ROLL, Eng. law. The name of a record which contains an entry of the
term of which the demurrer book, issue or paper book is entitled, and the,
warrants of attorney supposed to have been given by the parties at the
commencement of the cause, and then proceeds with the transcript of the
declaration and subsequent pleadings, continuances, and award of the mode of
the decision as contained in the demurrer, issue or paper book. Steph. Pl.
98, 99. After final judgment, the issue roll is no longer called by that
name, but assumes that of judgment roll. 2 Arch. Pr. 206.
ISSUES, Eng. law. The goods and profits of the lands of a defendant against
whom a writ of distringas or distress infinite has been issued, taken by
virtue of such writ, are called issues. 3 Bl. Com. 280; 1 Chit. Cr. Law,
351.
ISTHMUS. A tongue or strip of land between two seas. Glos. on Law, 37, book
2, tit. 3, of the Dig.
ITA EST. These words signify so it is. Among the civilians when a notary
dies, leaving his register, an officer who is authorized to make official
copies of his notarial acts, writes instead of the deceased notary's name,
which is required, when he is living, ita est,
ITA QUOD. The name or condition in a submission which is usually introduced
by these words "so as the award be made of and upon the premises," which
from the first word is called the ita quod.
2. When the submission is with an ita quod, the arbitrator must make an
award of all matters. submitted to him of which he had notice, or the award
will be entirely void. 7 East, 81; Cro. Jac. 200; 2 Vern. 109; 1 Ca. Chan.
86; Roll. Ab. Arbitr. L. 9.
ITEM. Also; likewise; in like manner.; again; a second time. These are the
various meanings of this Latin adverb. Vide Construction.
2. In law it is to be construed conjunctively, in the sense. of and, or
also, in such a manner as to connect sentences. If therefore a testator
bequeath a legacy to Peter payable out of a particular fund, or charged upon
a particular estate, item a legacy to James, James' legacy as well as
Peter's will be a charge upon the same property. 1 Atk. 436; 3 Atk. 256 1
Bro. C. C. 482; 1 Rolle's Ab. 844; 1 Mod. 100; Cro. Car. 368; Vaugh. 262; 2
Rop. on Leg. 849; 1 Salk. 234. Vide Disjunctive.
ITER. A foot way. Vide Way.
ITINERANT. Travelling or taking a journey. In England there were formerly
judges called Justices itinerant, who were sent with commissions into
certain counties to try causes.
J.
JACTITATION. OF MARRIAGE, Eng. eccl. law. The boasting by an individual that
he or she has married another, from which it may happen that they will
acquire the reputation of being married to each other.
2. The ecclesiastical courts may in such cases entertain a libel by the
party injured; and, on proof of the facts, enjoin the wrong-doer to
perpetual silence; and, as a punishment, make him pay the costs. 3 Bl. Com.
93; 2 Hagg. Cons. R. 423 Id. 285; 2 Chit. Pr. 459.
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JACTURA. The same as jettison. (q.v.) 1 Bell's Com. 586, 5th ed.
JAIL. A prison; a place appointed by law for the detention of prisoners. A
jail is an inhabited dwelling-house within the statute of New York, which
makes the malicious burning of an inhabited dwelling-house to be arson. 8
John. 115; see 4 Call, 109. Vide Gaol; Prison.
JEOFAILE. This is a law French phrase, which signifies, "I am in an error; I
have failed." There are certain statutes called statutes of amendment and
jeofails because, where a pleader perceives any slip in the form of his
proceedings, and acknowledges the error, (jeofaile,) he is at liberty by
those statutes to amend it. The amendment, however, is seldom made, but the
benefit is attained by the court's overlooking the exception. 3 Bl. Com.
407; 1 Saund. 228, n. 1; Doct. Pl. 287; Dane's Ab. h.t.
JEOPARDY. Peril, danger. 2. This is the meaning attached to this word used
in the act establishing and regulating the post office department. The words
of the act are, "or if, in effecting such robbery of the mail the first
time, the offender shall wound the person having the custody thereof, or put
his life in jeopardy by the use of dangerous weapons, such offender shall
suffer death." 3 Story's L. U. S. 1992. Vide Baldw. R. 93-95.
3. The constitution declares that no person shall "for the same
offence, be twice put in jeopardy of life and limb." The meaning of this is,
that the party shall, not be tried a second time for the same offence after
he has once been convicted or acquitted of the offence charged, by the
verdict of a jury, and judgment has passed thereon for or against him; but
it does not mean that he shall not be tried for the offence, if the jury
have been discharged from necessity or by consent, without giving any
verdict; or, if having given a verdict, judgment has been arrested upon it,
or a new trial has been granted in his favor; for, in such a case, his life
and limb cannot judicially be said to have been put in jeopardy. 4 Wash. C.
C. R. 410; 9 Wheat. R. 579; 6 Serg. & Rawle, 577; 3. Rawle, R. 498; 3 Story
on the Const. Sec. 1781. Vide 2 Sumn. R. 19. This great privilege is secured
by the common law. Hawk. P. C., B. 2, 35; 4 Bl. Com. 335.
4. This was the Roman law, from which it has been probably engrafted
upon the common law. Vide Merl. Rep. art. Non bis in idem. Qui de crimine
publico accusationem deductus est, says the Code, 9, 2, 9, ab alio super
eodem crimine deferri non potest. Vide article Non bis in idem.
JERGUER, Engl. law. An officer of the custom-house, who oversees the
waiters. Tech. Dict. h.t.
JETTISON, or JETSAM. The casting out of a vessel, from necessity, a part of
the lading; the thing cast out also bears the same name; it differs from
flotsam in this, that in the latter the goods float, while in the former
they sink, and remain under water; it differ; also from ligan. (q.v.)
2. The jettison must be made for sufficient cause, and not from
groundless timidity. In must be made in a case of extremity, when the ship
is in danger of perishing by the fury of a storm, or is laboring upon rocks
or shallows, or is closely pursued by pirates or enemies.
3. If the residue of the cargo be saved by such sacrifice, the property
saved is bound to pay a: proportion of, the loss. In ascertaining such
average. loss, the goods lost and saved are both to be valued at the price
they would have brought at the place of delivery, on the ship's arrival
there, freight, duties and other charges being deducted. Marsh. Ins. 246; 3
Kent, Com. 185 to 187; Park. Ins., 123; Poth. Chartepartie, n. 108, et suiv;
Boulay-Paty, Dr. Com. tit. 13; Pardessus, Dr. Com. n. 734; 1 Ware's R. 9.
JOINDER OF ISSUE, pleadings. The act by which the parties to a cause arrive
at that stage of it in their pleadings, that one asserts a fact to be so,
and the other denies it. For example, when one party denies the fact pleaded
by his antagonist, who has tendered the issue thus, "And this he prays may
be inquired of by the country," or, "And of this he puts himself upon the
country," the party denying the fact may immediately subjoin, "And the said
A B does the like;" when the issue is said to be joined.
JOINDER OF PARTIES TO ACTIONS. It is a rule in actions ex contractu that all
who have a legal interest in the contract, and no others, must join in
action founded on a breach of such contract; whether the parties are too
many or too few, it is equally fatal. 8 S. & R. 308: 4 Watts, 456; 1 Breese,
286; 6 Pick. 359. 6 Mass. 460; 2 Conn. 697; 6 Wend. 629; 2 N. & M. 70; 1
Bailey, 13; 5 Verm. 116; 3 J. J. Marsh. 165; 16 John. 34; 19 John. 213; 2
Greenl. 117; 2 Penn. 817.
2. In actions ex contractu all obligors jointly and not severally
liable, and no others, must be made defendants. 1 Saund. 153, note 1; 1
Breese, 128; 11 John. 101; J. J. Marsh. 38; 2 John. 213.
3. In actions ex. delicto, when an injury is done to the property of
two or more joint owners, they must join in the action. 1 Saund. 291, g; 11
Pick. 269; 12 Pick. 120; 7 Mass. 135; 13 John. 286.
4. When a tort is of such a nature that it may be committed by several,
they may all be joined in an action ex delicto, or they may be sued
severally. But when the tort cannot be committed jointly, as, for example,
slander, two or more persons cannot be sued jointly, although they may have
uttered the same words. 6 John. 32. See, generally, 3 Bouv. Inst. n. 2648,
et seq.
JOINT. United, not separate; as, joint action, or one which is brought by
several persons acting together; joint bond, a bond given by two or more
obligors.
JOINT CONTRACT. One in which the contractors are jointly bound to perform
the promise or obligation therein contained, or entitled to receive the
benefit of such promise or obligation.
2. It is a general rule that a joint contract survives, whatever may be
the beneficial interests of the parties under it; where a partner,
covenantor, or other person entitled, having a joint interest in a contract
not running with the land, dies, the right to sue survives in the other
partner, &c. 1 Dall. 65, 248; Addis. on Contr. 285. And when the obligation
or promise is to perform something jointly by the obligor or promissors, and
one dies, the action must be brought against the survivor. Ham. on Part.
156.
3. When all the parties interested in a joint contract die, the action
must be brought by the executors or administrators of the last surviving,
obligee, against the executors or administrators of the last surviving
obligor. Addis. on Contr. 285. See Contracts; Parties to Actions; Co-
obligor.
JOINT EXECUTORS. It is proposed to consider, 1. The interest which they have
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in the estate of the deceased. 2. How far they are liable for each other's
acts. 3. The rights of the survivor.
2.-1. Joint executors are considered in law as but one person,
representing the testator, and, therefore, the acts of any one of them,
which relate either to the delivery, gift, sale, payment, possession or
release of the testator's goods, are deemed, as regards the persons with
whom they contract, the acts of all. Bac. Abr. h.t.; 11 Vin. Abr. 358; Com.
Dig. Administration, B 12; 1 Dane's Abr. 583; 2 Litt. (Kentucky) R. 315;
Godolph. 314; Dyer, 23, in marg. 16 Serg. & Rawle, 337. But an executor
cannot, without the knowledge of his co-executor, confess a judgment for a
claim, part of which was barred by the act of limitations, so as to bind the
estate of the testator. 6 Penn. St. Rep. 267.
3.-2. As a general rule, it may be laid down that each, executor is
liable for his own wrong, or devastavit only, and not for that of his
colleague. He may be rendered liable, however, for the misplaced confidence
which he may have reposed in his coexecutor. As, if he signs a receipt for
money, in conjunction with another executor, and he receives no part of the
money, but agrees that the other, executor shall retain it, and apply it to
his own use, this is his own misapplication, for which he is responsible. 1
P. Wms. 241, n. 1; 1 Sch. & Lef. 341; 2 Sch. & Lef. 231; 7 East, R. 256; 11
John. R. 16; 11 Serg. & Rawle, 71; Hardw. 314; 5 Johns. Ch. R. 283; and see
2 Bro. C. C. 116; 3 Bro. C. C. 112; 2 Penn. R. 421; Fonb. Eq. B. 2, c. 7, s.
5, n. k.
4.-3. Upon the death of one of several joint executors, the right of
administering the estate of the testator devolves upon the survivor. 3 Atk.
509 Com. Dig. Administration, B 12; Hamm. on Parties, 148.
5. In Pennsylvania, by legislative enactment, it is provided, "that
where testators may devise their estates to their executors to be sold, or
direct such executors to sell and convey such estates, or direct such real
estate to be sold, without naming, or declaring who shall sell the same, if
one or more of the executors die, it shall or may be lawful for the
surviving executor to bring actions for the recovery of the possession
thereof, and against trespassers thereon; to sell and "convey such real
estate, or manage the same for the benefit of the persons interested
therein." Act of March 12, 1800, 3 Sm. L. 433.
JOINT STOCK BANKS. In England they are a species of quasi corporations, or
companies regulated by deeds of settlement; and, in this respect, the stand
in the same situation as other unincorporated bodies. But they differ from
the latter in this, that they are invested by certain statutes with powers
and privileges usually incident to corporations. These enactments provide
for the continuance of the partnership, notwithstanding a change of
partners. The death, bankruptcy, or the sale by a partner of his share, does
not affect the identity of the partnership; it, continues the same body,
under the same name, by virtue of the act of parliament, notwithstanding
these changes. 7 Geo. IV., c. 46, s. 9.
JOINT TENANTS, estates. Two or more persons to whom are granted land's or
tenements to hold in fee simple, fee tail, for life, for years, or at will.
2 Black. Com. 179. The estate which they, thus hold is called an estate in
joint tenancy. Vide Estate in joint tenancy; Jus accrescendi; Survivor.
JOINT TRUSTEES. Two or more persons who are entrusted with property for the
benefit of one or more others.
2. Unlike joint executors, joint trustees cannot act separately, but
must join both in conveyances and receipts, for one cannot sell without the
others, or receive more of the consideration money, or be more a trustee
than his partner. The trust having been given to the whole, it requires
their joint act to do anything under it. They are not responsible for money
received by their co-trustees, if the receipt be given for the mere purposes
of form. But if receipts be given under circumstances purporting that, the
money, though not received by both, was under the control of both, such a
receipt shall charge, and the consent that the other shall misapply the
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money, particularly where he has it in his power to secure it, renders him
responsible. 11 Serg. & Rawle, 71. See 1 Sch. & Lef. 341; 5 Johns. Ch. R.
283; Fonb. Eq. B. 2, c. 7, s. 5; Bac. Abr. Uses and Trusts, K; 2 Bro. Ch.
R. 116; 3 Bro. Ch. R. 112. In the case of the Attorney General v. Randall, a
different doctrine was held. Id. pl. 9.
JOINTRESS or JOINTURESS. A woman who has an estate settled on her by her
husband, to hold during her life, if she survive him. Co. Litt. 46.
JOINTURE, estates.. A competent livelihood of freehold for the wife, of
lands and tenements; to take effect in profit or possession, presently after
the death of the husband, for the life of the wife at least.
2. Jointures are regulated by the statute of 27 Hen. VIII. o. 10,
commonly called the statute of uses.
3. To make a good jointure, the following circumstances must concur,
namely; 1. It must take effect, in possession or profit, immediately from
the death of the husband. 2. It must be for the wife's life, or for some
greater estate. 3. It must be limited to the wife herself, and not to any
other person in trust for her. 4. It must be made in satisfaction for the
wife's whole dower, and not of part of it only. 5. The estate limited to the
wife must be expressed or averred to be, in satisfaction of her whole dower.
6. It must be made before marriage. A jointure attended with all these
circumstances is binding on the widow, and is a complete bar to the claim of
dower; or rather it prevents its ever arising. But there are other. modes of
limiting an estate to a wife, which, Lord Coke says, are good jointures
within the statute, provided the wife accepts of them after the death of the
husband. She may, however, reject them, and claim her dower. Cruise, Dig.
tit. 7; 2 Bl. Com. 137; Perk. h.t. In its more enlarged sense, a jointure
signifies a joint estate, limited to both husband and. wife. 2 131. Com.
137. Vide 14 Vin. Ab. 540; Bac. Ab. h.t.; 2 Bouv. Inst. n. 1761, et seq.
JOUR. A French word, signifying day. It is used in our old law books, as,
tout jours, for ever. It is also frequently employed in the composition of
words, as, journal, a day book; journeyman, a man 'who works by the day;
journeys account. (q.v.)
JOURNAL, mar. law. The book kept on board of a ship or other vessel, which
contains an account of the ship's course, with a short history of every
occurrence during the voyage. Another name for logbook. (q.v.) Chit. Law of
Nat. 199.
JOURNAL, common law. A book used among merchants, in which the contents of
the waste-book are separated every month, and entered on the debtor and
creditor side, for more convenient posting in the ledger.
JOURNAL, legislation. An account of the proceedings of a legislative body.
2. The Constitution of the United States, art. 1, s. 5, directs that
"each house shall keep a journal of its proceedings; and from time to time
publish the same, excepting such parts as may, in their judgment, require
secrecy." Vide 2 Story, Const., 301.
3. The constitutions of the several states contain similar provisions.
4. The journal of either house is evidence of the action of that house
upon all matters before it. 7 Cowen, R. 613 Cowp. 17.
JOURNEYS ACCOUNT, Eng. practice. When a writ abated without any fault of the
plaintiff, he was permitted to sue out a new writ, within as little time as
he possibly could after abatement of the first writ, which was quasi a
continuance of the first writ, and placed him in a situation in which he
would have been, supposing he had still, proceeded on that writ. This was
called journeys account.
2. This mode of proceeding has fallen into disuse, the practice now
being to permit that writ to be quashed, and torque out another. Vide Termes
de la Ley, h.t.; Bac. Ab. Abatement, Q; 14 Vin. Ab. 558; 4 Com. Dig. 714; 7
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Mann. & Gr. 762.
JUDEX. This word has several significations: 1. The judge, one who declares
the law, quijus dicit; one who administers justice between the parties to a
cause, when lawfully submitted to him. 2. The judicial power, or the court.
3. Anciently, by judex was also understood a juror. Vide Judge.
JUDEX A Quo. A judge from whom an appeal may be taken; a judge of a court
below. See A quo; 6 Mart. Lo. Rep. 520.
JUDEX AD OUEM. A judge to whom an appeal may be taken: a superior judge.
JUDGE. A public officer, lawfully appointed to decide litigated questions
according to law. This, in its most extensive sense, includes all officers
who are appointed to decide such questions, and not only judges properly so
called, but also justices of the peace, and jurors, who are judges of the
facts in issue. See 4 Dall. 229; 3 Yeates, IR. 300. In a more limited sense,
the term judge signifies an officer who is so named in his commission, and
who presides in some court.
2. Judges are appointed or elected, in a variety of ways, in the United
States they are appointed by the president, by and with the consent of the
senate; in some of the states they are appointed by the governor, the
governor and senate, or by the legislature. In the United States, and some
of the states, they hold their offices during good behaviour; in others, as
in New York, during, good behaviour, or until they shall attain a certain
age and in others for a limited term of years.
3. Impartiality is the first duty of a judge; before he gives an
opinion, or sits in judgment in a cause, he ought to be certain that he has
no bias for or against either of the parties; and if he has any (the
slightest) interest in the cause, he is disqualified from sitting as judge;
aliquis non debet esse judex in propria causa; 8 Co. 118; 21 Pick. Rep. 101;
5 Mass. 92; 13 Mass. 340; 6 Pick. R. 109; 14 S. & R. 157-8; and when he is
aware of such interest, he ought himself to refuse to sit on the case. It
seems it is discretionary with him whether he will sit in a cause in which
he has been of counsel. 2 Marsh. 517; Coxe, 164; see 2 Binn. 454. But the
delicacy which characterizes the judges in this country, generally, forbids
their sitting in such a cause.
4. He must not only be impartial, but he must follow and enforce the
law, whether good or bad. He is bound to declare what the law is, and not
to make it; he is not an arbitrator, but an interpreter of the law. It is
his duty to be patient in the investigation of the case, careful in
considering it, and firm in his judgment. He ought, according to Cicero,
"never to lose sight that he is a man, and that he cannot exceed the power
given him by his commission; that not only power, but public confidence has
been given to him; that he ought always seriously to attend not to his
wishes but to the requisitions of law, of justice and religion." Cic. pro.
Cluentius. A curious case of judicial casuistry is stated by Aulus Gellius
Att. Noct. lib: 14, cap. 2, which may be interesting to the reader.
5. While acting within the bounds of his jurisdiction, the judge is hot
responsible for any error of judgment, nor mistake he may commit as a judge.
Co. Litt. 294; 2 Inst. 422; 2 Dall. R. 160; 1 Yeates, R. 443; N. & M'C. 168;
1 Day, R. 315; 1 Root, R. 211; 3 Caines, R. 170; 5 John. R. 282; 9 John. R.
395; 11 John. R. 150; 3 Marsh. R. 76; 1 South. R. 74; 1 N. H. Rep. 374; 2
Bay, 1, 69; 8 Wend. 468; 3 Marsh. R. 76,. When he acts corruptly, he may be
impeached. 5 John. R. 282; 8 Cowen, R. 178; 4 Dall. R. 225.
6. A judge is not competent as a witness in a cause trying before him,
for this, among other reasons, that he can hardly be deemed capable of
impartially deciding on the admissibility of his own testimony, or of
weighing. it against that of another. Martin's R. N. S. 312. Vide, Com.
Dig. Courts, B 4, C 2, E 1, P 16 justices, 1 1, 2, and 3; 14 Vin. Ab. 573;
Bac. Ab. Courts, &c., B; 1 Kent, Com. 291; Ayl. Parerg. 309; Story, Const.
Index, h.t. See U. S. Dig. Courts, I, where will be found an abstract of
various decisions relating to the appointment and powers of judges in
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different states. Vide Equality; Incompetency.;
JUDGE ADVOCATE. An officer who, is a member of a court martial.
2. His duties are to prosecute in the name of the United States, but he
shall so far consider himself as counsel for the prisoner, after the
prisoner shall have made his plea, as to object to leading questions to any
of the witnesses, or any question to the prisoner, the answer to which might
tend to criminate himself. He is further to swear the members of the court
before they proceed upon any trial. Rules and Articles of War, art. 69, 2
Story, L. U. S. 1001; Lid. Jud. Adv. passim.
JUDGE'S NOTES. They are short statements, made by a judge on the trial of a
cause, of what transpires in the course of such trial. They usually contain
a statement of the testimony of witnesses; of documents offered or admitted
in evidence; of offers of evidence and whether it has been received or
rejected, and the like matters.
2. In general judge's notes are not evidence of what transpired at a
former trial, nor can they be read to prove what a deceased witness swore to
on such former trial, for they are no part of the record, and he is not
officially bound to make them. But in chancery, when a new trial is ordered
of an issue sent out of chancery to a court of law, and it is suggested that
some of the witnesses in the former trial are of an advanced age, an order
may be made that, in the event of death or inability to attend, their
testimony may be read from the judge's notes. 1 Greenl. Ev. Sec. 166.
JUDGMENT, practice. The decision or sentence of the law, given by a court of
justice or other competent tribunal, as the result of proceedings instituted
therein, for the redress of an injury.
2. The language of judgments, therefore, is not that "it is decreed,"
or "resolved," by the court; but "it is considered," (consideratum est per
curiam) that the plaintiff recover his debt, damages, or possession, as the
case may require, or that the defendant do go without day. This implies that
the judgment is not so much the decision of the court, as the sentence of
the law pronounced and decreed by the court, after due deliberation and
inquiry.
3. To be valid, a judicial judgment must be given by a competent judge
or court, at a time and place appointed by law, and in the form it requires.
A judgment would be null, if the judge had not jurisdiction of the matter;
or, having such jurisdiction, he exercised it when there was no court held,
or but of his district; or if be rendered a judgment before the cause was
prepared for a hearing.
4. The judgment must confine itself to the question raised before the
court, and cannot extend beyond it. For example, where the plaintiff sued
for an injury committed on his lands by animals owned and kept carelessly by
defendant, the judgment may be for damages, but it cannot command the
defendant for the future to keep his cattle out of the plaintiff's land.
That would be to usurp the power of the legislature. A judgment declares the
rights which belong to the citizen, the law alone rules future actions. The
law commands all men, it is the same for all, because it is general;
judgments are particular decisions, which apply only to particular persons,
and bind no others; they vary like the circumstances on which they are
founded.
5. Litigious contests present to the courts facts to appreciate,
agreements to be construed, and points of law to be resolved. The judgment
is the result of the full examination of all these.
6. There are four kinds of judgments in civil cases, namely: 1. When
the facts are admitted by the parties, but the law is disputed; as in case
of judgment upon demurrer. 2. When the law is admitted, but the facts are
disputed; as in, case of judgment upon a verdict. 3. When both the law and
the facts are admitted by confession; as, in the case of cognovit actionem,
on the part of the defendant; or nolle prosequi, on the part of the
plaintiff. 4. By default of either party in the course of legal proceedings,
as in the case of judgment by nihil dicit, or non sum informatus, when the
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defendant has omitted to plead or instruct his attorney to do so, after a
proper notice or in cases of judgment by non pros; or, as in case of
nonsuit, when the plaintiff omits to follow up his proceedings.
7. These four species of judgments, again, are either interlocutory or
final. Vide 3 Black. Com. 396; Bing. on Judg. 1. For the lien of judgment
in the several estates, vide Lien.
8. A list of the various judgments is here given.
9. Judgment in assumpsit is either in favor of the plaintiff or
defendant; when in favor of the plaintiff, it is that he recover a specified
sum, assessed by a jury, or on reference to the prothonotary, or other
proper officer, for the damages which he has sustained, by reason of the
defendant's non-performance of his promises and undertakings, and for full
costs of suit. 1 Chit. Pl. 100. When the judgment is for the defendant, it
is that he recover his costs.
10. Judgment in actions on the case for torts, when for the plaintiff,
is that he recover a sum of money ascertained by a jury for his damages
occasioned by the committing of the grievances complained of, and the costs
of suit. 1 Ch. Pl. 147. When for the defendant, it is for costs.
11. Judgment of cassetur breve, or billa, is in cases of pleas in
abatement where the plaintiff prays that his "writ" or "bill" "may be
quashed, that he may sue or exhibit a better one." Steph. Pl. 130, 131, 128
Lawes, Civ. PI.
12. Judgment by confession. When instead of entering a plea, the
defendant chooses to confess the action; or, after pleading; he does, at any
time before trial, both confess the action and withdraw his plea or other
allegations; the judgment against him, in these two cases, is called a
judgment by confession or by confession relicta verificatione. Steph. Pl.
130.
13. Contradictory judgment. By this term is understood, in the state of
Louisiana, a judgment which has been given after the parties have been
heard, either in support of their claims, or in their defence. Code of
Pract. art. 535; 11 L. R. 366, 569. A judgment is called contradictory to
distinguish it from one which is rendered by default.
14. Judgment in covenant; when for the plaintiff, is that he recover an
ascertained sum for his damages, which he has sustained by reason of the
breach or breaches of the defendant's covenant, together with costs of suit.
1 Chitty's Plead. 116, 117. When for the defendant, the judgment, is for
costs.
15. Judgment in the action of debt; when for the plaintiff, is that he
recover his debt, and in general, nominal damages for the detention thereof;
and in cases under the 8 and 9 Wm. III. c. 11, it is also awarded, that the
plaintiff have execution for the damages sustained by the breach of a bond,
conditioned for the performance of covenants; and that plaintiff recover
full costs of suit. 1 Chitty's Pl. 108, 9.
16. In some penal and other particular actions the plaintiff does not,
however, always recover costs. Espinasse on Pen. Act. 154: Hull. on Costs,
200; Bull. N. P. 333; 5 Johns. R. 251.
17. When the judgment is for the defendant, it is generally for costs.
In some penal actions, however, neither party can recover costs, 5 Johns. R.
251.
18. Judgment by default, is a judgment rendered in consequence of tho
non-appearance of the defendant, and is either by nil dicit; vide Judgment
by nil dicit, or by non sum informatus; vide Judgment by non sum informatus.
19. This judgment is interlocutory in assumpsit, covenant, trespass,
case, and replevin, where the sole object of the action is damages; but in
debt, damages not being the principal object of the action, the plaintiff
usually signs final judgment in the first instance. Vide Com. Dig. Pleader,
B 11 and 12, E 42; 7 Vin. Ab. 429; Doct. Pl. 208; Grah. Pr, 631 Dane's Ab.
Index, h.t.; 3 Chit. Pr. 671 to 680; Tidd's Pr. 563; 1 Lilly's Reg. 585;
and article Default.
20. Judgment in the action of detinue; when for the plaintiff, is in the
alternative, that he recover the goods, or the value thereof, if he cannot
have the goods themselves, and his damage for the detention and costs. 1 Ch.
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Pl. l21, 2; 1 Dall. R. 458.
2l. Judgment in error, is a judgment rendered by a court of error, on a
record sent up, from an inferior court. These judgments are of two kinds, of
affirmance and reversal. When the judgment is for the defendant in error,
whether the errors assigned be in law or in fact, it is "that the former
judgment be affirmed, and stand in full force and effect, the said causes
and matters assigned for error notwithstanding, and that the defendant in
error recover $____ for his damages, charges and costs which he hath
sustained," &c. 2 Tidd's Pr. 1126; Arch. Forms, 221. When it is for the
plaintiff in error, the judgment is that it be reversed or recalled. It is
to be reversed for error in law, in this form, that it be reversed, annulled
and altogether holden for nought." Arch. Forms, 224. For error in fact the,
judgment is recalled, revocatur. 2 Tidd's Pr. 1126.
22. A final judgment is one which puts an end to the suit.
23. When the issue is one in fact, and is tried by a jury, the jury at
the time that they try the issue, assess the damages, and the judgment is
final in the first instance, and is that the plaintiff do recover the
damages assessed.
24. When an interlocutory judgment has been rendered, and a writ of
inquiry has issued to ascertain the damages, on the return of the
inquisition the plaintiff is entitled to a final judgment, namely, that he
recover the amount of damages so assessed. Steph. Pl. 127, 128.
25. An interlocutory judgment, is one given in the course of a cause,
before final judgment. When the action sounds in damages, and the issue is
an issue in law, or when any issue in fact not tried by a jury is decided in
favor of the plaintiff, then the judgment is that the plaintiff ought to
recover his damages without specifying their amount; for, as there has been
no trial by jury in the case, the amount of damages is not yet ascertained.
The judgment is then said to be interlocutory.
26. To ascertain such damages it is the practice to issue a writ of
inquiry. Steph. Pl. 127. When the action is founded on a promissory note,
bond, or other writing, or any other contract by which the amount due may be
readily computed, the practice is, in some courts, to refer it to the
prothonotary or clerk to assess the damages.
27. There is one species of interlocutory judgment which establishes
nothing but the inadequacy of the defence set up this is the judgment for
the plaintiff on demurrer to a plea in abatement, by which it appears that
the defendant has mistaken the law on a point which does not affect the
merits of his case; and it being but reasonable that he should offer, if he
can, a further defence, that judgment is that he do answer over, in
technical language, judgment of respondeat ouster. (q.v.) Steph. Plead,
126; Bac. Ab. Pleas, N. 4; 2 Arch. Pr. 3.
28. Judgment of nil capiat per breve or per billam. When an issue arises
upon a declaration or peremptory plea, and it is decided in favor of the
defendant, the judgment is, in general, that, the plaintiff take nothing by
his writ, (or bill,) and that the defendant go thereof without day, &c. This
is called a judgment of nil capiat per breve, or per billam. Steph. Pl. 128.
29. Judgment by nil dicit, is one rendered against a defendant for want
of a plea. The plaintiff obtains a rule on the defendant to plead within a
time specified, of which he serves a notice on the defendant or his
attorney; if the defendant neglect to enter a plea within the time
specified, the plaintiff may sign judgment against him.
30. Judgment of nolle prosequi, is a judgment entered against the
plaintiff, where, after appearance and before judgment, he says, "he will
not further prosecute his suit." Steph. Pl. 130 Lawes Civ. Pl. 166.
31. Judgment of non obstante veredicto, is a judgment rendered in favor
of the plaintiff, without regard to the verdict obtained by the defendant.
32. The motion for such judgment is made where after a pleading by the
defendant in confession and avoidance, as, for example, a plea in bar, and
issue joined thereon, and verdict found for, the defendant, the plaintiff on
retrospective examination of the record, conceives that such plea was bad in
substance, and might have been made the subject of demurrer on that ground.
If the plea was itself substantially bad in law, of course the verdict,
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which merely shows it to be true in point of fact, cannot avail to entitle
the defendant to judgment; while on the other hand the plea being in
confession and avoidance, involves a confession of the plaintiff's
declaration, and shows that he was entitled. to maintain his action. In such
case, therefore, this court will give judgment for the plaintiff, without
regard to the verdict; and this, for the reasons above explained, is called
a judgment upon confession. Sometimes it may be expedient for the plaintiff
to move for judgment non obstante, &c., even though the verdict be in his
own favor; for, if in such case as above described, he takes judgment as
upon the verdict, it seems that such judgment would be erroneous, and that
the only safe course is to take it as upon confession. 1 Wils. 63; Cro.
Eliz, 778 2 Roll. Ab. 99. See also, Cro. Eliz. 2 1 4 6 Mod. 1 0; Str. 394; 1
Ld. Raym. 641; 8 Taunt. 413; Rast. Ent. 622; 1 Wend. 307; 2 Wend. 624; 5
Wend. 513; 4 Wend. 468; 6 Cowen, R. 225. See this Dict. Repleader, for the
difference between a repleader and a judgment non obstante veredicto.
33. Judgment by non sum informatus, is one which is rendered, when
instead of entering a plea, the defendant's attorney says he is not informed
of any answer to be given to the action. Steph. Pl. 130.
34. Judgment of non pros. (from non prosequitur,) is one given against
the plaintiff, in any class of actions, for not declaring, or replying, or
surrejoining, &c., or for not entering the issue.
35. Judgment of nonsuit, Practice, is one against the plaintiff, which
happens when, on trial by jury, the plaintiff, on being called or demanded,
at the instance of the defendant, to be present while the jury give their
verdict, fails to make his appearance.
36. In this case, no verdict is given, but the judgment of nonsuit
passes against the plaintiff. So if, after issue be joined, the plaintiff
neglect to bring such issue on to be tried in due time, as limited by the
practice of the court, in the particular case, judgment will be also given
against him for this default; and it is called judgment as in case of
nonsuit. Steph. Pl. 131.
37. After suffering a nonsuit, the plaintiff may commence another action
for the same cause for which the first had been instituted.
38. In some cases, plaintiffs having obtained information in what manner
the jury had agreed upon their verdict before it was delivered in court,
have, when the jury were ready to give in such verdict against them,
suffered a nonsuit for the purpose of commencing another action and
obtaining another trial. To prevent this abuse, the legislature of
Pennsylvania have provided, by the Act of March 28, 1814, 6:Reed's L. 208,
that "whenever on the trial of any cause, the jury shall be ready to give in
their verdict, the plaintiff shall not be called, nor shall he then be
permitted to suffer a nonsuit."
39. Judgment quod computet. The name of an interlocutory judgment in an
action of account render that the defendant do account, quod computet. Vide
4 Wash. C. C. R. 84; 2 Watts, R. 95; 1 Penn. R. 138.
40. Judgment quod recuperet. When an issue in law, other than one
arising on a dilatory plea, or an issue in fact, is decided in favor of the
plaintiff, the judgment is, that the plaintiff do recover, which is called a
judgment quod recuperet. Steph. Pl. 126; Com. Dig. Abatement, I 14, I 15; 2
Arch. Pr. 3. This judgment is of two kinds, namely, interlocutory or final.
41. Judgment in replevin, is either for the plaintiff or defendant.
42.-1. For the plaintiff. 1. When the declaration is in the detinuit,
that is, where the plaintiff declares, that the chattels "were detained
until replevied by the sheriff," the judgment is that he recover the damages
assessed by the jury for the taking and unjust detention, or for the latter
only, where the former was justifiable, as also his costs. 5 Serg. & Rawle,
133 Ham. N. P. 488.
43.-2. If the replevin is in the detinet, that is, where the plaintiff
declares that the chattels taken are "yet detained," the jury must find,
'in addition to the above, the value of the chattels, (assuming that they
are still detained,) not in a gross sum, but each separate article; for tho
defendant, perhaps, will restore some, in which case the plaintiff is to
recover the value of the remainder. Ham. N. P. 489; Fitz. N. B. 159, b; 5
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Serg. & Rawle, 130.
44.-2. For the defendant. 1. If the replevin be abated, the judgment
is, that the writ or plaint abate, and that the defendant (having avowed)
have a return of the chattels.
46.-2. When the plaintiff is nonsuited) the judgment for the
defendant, at common law, is, that the chattels be restored to him, and this
without his first assigning the purpose for which they were taken, because,
by abandoning his suit, the plaintiff admits that he had no right to
dispossess the defendant by prosecuting the replevin. The form of this
judgment. is simply "to have a return," without adding the words "to hold
irreplevisable." Ham. N. P. 490.
46. As to the form of judgments in cases of nonsuit, under the 21 Hen.
VIII. c. 19, and 17 Car. II. c. 7, see Ham. N. P. 490, 491; 2 Ch. Plead.
161; 8 Wentw. Pl. 116; 5 Serg. & Rawle, 132; 1 Saund. 195, n. 3; 2 Saund.
286, n. 5. It is still in the defendant's option in these cases, to take his
judgment pro retorno habendo at common law. 5 Serg. & Rawle, 132; 1 Lev.
265; 3 T. R. 349.
47.-3. When the avowant succeeds upon the merits of his case, the
common law judgment is, that he "have return irreplevisable," for it is
apparent that he is by law entitled to keep possession of the goods. 5 Serg.
& Rawle, 135; Ham. N. P. 493; 1 Chit. Pl. 162. For the form of judgments in
favor of the avowant, under the last mentioned statutes, gee Ham. N. P. 494-
5.
48. Judgment of respondeat ouster. When there is an issue in law,
arising on a dilatory plea, and it is decided in favor of the plaintiff, the
judgment is only that the defendant answer over, which is called a judgment
of respondeat ouster. The pleading is accordingly resumed, and the action
proceeds. Steph. Pl. 126; see Bac. Abr. Pleas, N 4; 2 Arch. Pr. 3.
49. Judgment of retraxit, is one where, after appearance and before
judgment, the, plaintiff enters upon the record that he "withdraws his
suit;" in such case judgment is given against him. Steph. Pl. 130.
50. Judgment in an action on trespass, when for the plaintiff, is, that
he recover the damages assessed by the jury, and the costs. For the
defendant, that he recover the costs.
51. Judgment in action on the case for trover, when for the plaintiff,
is, that he recover damages and costs. 1 Ch. Pl. 157, For the defendant, the
judgment is, that he recover his costs.
52. Judgment of capiatur. At common law, on conviction, in a civil
action, of a forcible wrong, alleged to have been committed vi et armis,
&c., the defendant was obliged to pay a fine to the king, for the breach of
the peace implied in the act, and a judgment of capiatur pro fine was
rendered against him, under which he was liable to be arrested, and
imprisoned till the fine was paid. But by the 5 W. & M. c. 12, the judgment
of capiatur pro fine was abolished. Gould on Pl. Sec. 38, 82; Bac. Ab. Fines
and Amercements, C 1; 1 Ld. Raym. 273, 4; Style, 346. See Judgment of
misericordia, 53. Judgment of misericordia. At common law, the party to, a
suit who did not prevail was punished for his unjust vexation, and therefore
judgment was given against him, quod sit in misericordia pro falso clamore.
Hence, when the plaintiff sued out a writ, the sheriff was obliged to take
pledges of prosecution before he returned it, which when fines and
amercements were considerable, were real and responsible persons, and
answerable for those amercements; but now they are never levied, and the
pledges are merely formal, namely, John Doe and Richard Roe. Bac. Ab. Fines,
&c., C 1 1 Lord Ray. 273, 4.
54. In actions where the judgment was against the defendant, it was
entered at common law, with a misericordia or a capiatur. With a
misericordia in actions on contracts, with a capiatur in actions of
trespass, or other forcible wrong, alleged to have been committed vi et
armis. See Judgment of capiatur; Gould on Pl. c. 4, Sec. 38, 82, 83.
55. Judgment quod partitio fiat, is a judgment, in a writ of partition,
that partition be made; this is not a final judgment. The final judgment is,
quod partitio facta firma et stabilis in perpetuum teneatur. Co. Litt. 169;
2 Bl. Rep. 1159.
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56. Judgment quod partes replacitent. The name of a judgment given when
the court award a repleader.
57. When issue is joined on an immaterial point, or a point on which the
court cannot give a judgment determining the right, they award a repleader
or judgment quod partes replacitent. See Bac. Ab. Pleas, &c., M; 3 Heyw.
159; Peck's R. 325. See, generally, Bouv. Inst. Index, h.t.
JUDGMENT, ARREST OF, practice. This takes place when the court withhold
judgment from the plaintiff on the ground that there is some error appearing
on the face of the record, which vitiates the proceedings. In consequence of
such error, on whatever part of the record it may arise, from the
commencement of the suit to the time when the motion in arrest of judgment
is made, the court are bound to arrest the judgment.
2. It is, however, only with respect to objections apparent on the
record, that such motions can be made. They cannot, in general, be made in
respect to formal objections. This was formerly otherwise, and judgments
were constantly arrested for matters of mere form; 3 Bl. Corn. 407; 2
Reeves, 448; but this abuse has been long remedied by certain statutes
passed at different periods, called the statutes of amendment and jeofails,
by the effect of which, judgments, cannot, in general, now be arrested for
any objection of form. Steph. Pl. 117; see 3 Bl. Com. 393; 21 Vin. Ab. 457;
1 Sell. Pr. 496.
JUDGMENT POLL, Eng. law. A record made of the issue roll, (q.v.) which,
after final judgment has been given in the cause, assumes this name. Steph.
Pl. 133. Vide Issue Roll.
JUDICES PEDANEOS. Among the Romans, the praetors, and other great
magistrates, did not themselves decide the actions which arose between
private individuals these were submitted to judges chosen by the parties,
and these judges were called judices pedaneos. In choosing them, the
plaintiff had the right to nominate, and the defendant to accept or reject
those nominated. Heinnee. Antiq. lib. 4, tit. b, n. 40 7 Toull. n. 353.
JUDICIAL. Belonging, or emanating from a judge, as such.
2. Judicial sales, are such as are ordered by virtue of the process of
courts. 1 Supp. to Ves. jr., 129, 160; 2 Ves. jr., 50.
3. A judicial writ is one issued in the progress of the cause, in
contradistinction to an original writ. 3 Bl. Com. 282.
4. Judicial decisions, are the opinions or determinations of the judges
in causes before them. Hale, H. C. L. 68; Willes' R. 666; 3 Barn. & Ald. 122
4 Barn. & Adolph. 207 1 H. B1. 63; 5 M. & S. 185.
5. Judicial power, the authority vested in the judges. The constitution
of the United States declares, that "the judicial power of the United States
shall be vested in one supreme court, and in such inferior courts as the
congress may, from time to time, ordain and establish." Art. 3, s. 1. 6. By
the constitutions of the several states, the judicial power is vested in
such courts as are enumerated in each respectively. See the names Of, the
several states. There is nothing in the constitution of the United States to
forbid or prevent the legislature of a state from exercising judicial
functions; 2 Pet. R. 413; and judicial acts have occasionally been performed
by the legislatures. 2 Root, R. 350; 3 Greenl. R. 334; 3 Dall. R. 386; 2
Pet. R. 660; 16 Mass. R. 328; Walk. R. 258; 1 New H. Rep. 199; 10 Yerg. R.
59; 4 Greenl. R. 140; 2 Chip., R. 77; 1 Aik. R. 314. But a state legislature
cannot annul the judgments, nor determine the jurisdiction of the courts of
the United States; 5 Cranch, It. 116; 2 Dall. R. 410; nor authoritatively
declare what the law is, or has been, but what it shall be. 2 Cranch, R.
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272; 4 Pick. R. 23. Vide Ayl. Parerg. 27; 3 M. R. 248; 4 M. R. 451; 9 M. R.
325; 6 M. R. 668; 12 M. R. 349; 3 N. S. 551; 5 N. S. 519; 1 L. R. 438 7 M.
R. 325; 9 M. R. 204; 10 M. R. 1.
JUDICIAL ADMISSIONS. Those which are generally made in writing in court by
the attorney of the party; they appear upon the record, as in the pleadings
and the like.
JUDICIAL CONFESSIONS, criminal law. Those voluntarily made before a
magistrate, or in a court, in the due course of legal proceedings. A
preliminary examination, taken in writing, by a magistrate lawfully
authorized, pursuant to a statute, or the plea of guilty, made in open court
to an indictment, are sufficient to found a conviction upon them.
JUDICIAL CONVENTIONS. Agreements entered into in consequence of an order of
court; as, for example, entering into a bond on taking out a writ of
sequestration. 6 N. S. 494.
JUDICIAL MORTGAGE. In Louisiana, it is the lien resulting from judgments,
whether these be rendered on contested cases, or by default, whether they be
final or provisional, in favor of the person obtaining them. Civ. Code of
Lo. art. 3289.
JUDICIAL SALE. A sale by authority of some competent tribunal, by an officer
authorized by law for the purpose.
2. The officer who makes the sale, conveys all the rights of the
defendant, or other person against whom the process has been issued, in the
property sold. Under such a sale there is no warranty, either express or
implied, of the thing sold. 9 Wheat. 616. When real estate is sold by the
sheriff or marshal, the sale is subject to the confirmation of the court, or
it may be set aside. See 4 Wash. C. C. R. 45 Wallace, 128; 4 Wash. C. C. R.
322.
JUDICIAL WRITS, Eng. practice. The capias and all other writs subsequent to
the original writ not issuing out of chancery, but from the court into which
the original was returnable, and being grounded on what had passed in that
court in consequence of the sheriff's return, were called judicial writs, in
contradistinction to the writs issued out of chancery, which were called
original writs. 3 Bl. Com. 282.
JUDICIARY. That which is done while administering justice; the judges taken
collectively; as, the liberties of the people are secured by a wise and
independent judiciary. See Courts; and 3 Story, Const. B. 3, c. 3 8.
JUDICIUM DEI. The judgment of God. The English law formerly impiously called
the judgments on trials by ordeal, by battle, and the like, the judgments of
God.
JUNIOR. Younger.
2. This has been held to be no part of a man's name, but an addition by
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use, and a convenient distinction between a father and son of the same name.
10 Mass. R. 203 10 Paige, 170; 1 Pick. R. 388; 7 John. It. 549; 2 Caines,
164 1 Pick. 388 15 Pick. 7; 17 Pick. 200 3 Metc. 330.
3. Any matter that distinguishes persons renders the addition of junior
or senior unnecessary. 1 Mod. Ent. 35; Salk. 7. But if father and son have
both the same name, the father shall be, prima facie, intended, if junior be
not added, or some other matter of distinction. Salk, 7; 6 Rep. 20 11 Rep.
39; Hob. 330. If father and son have the same name and addition, and the
former sue the latter, the writ is abateable unless the son have the further
addition of junior, or the younger. But if the father be the defendant and
the son the plaintiff, there is no need of the further addition of senior,
or the elder, to the name of the father. 2 Hawk. 187; Laws of Women, 380.
JURAMENTUM JUDICIALE. A term in the civil law. The oath called juramentum
judiciale is that which the judge, of his own accord, defers to either of
the parties.
2. It is of two kinds. 1st. That which the judge defers for the
decision of the cause, and which is understood by the general name
juramentum judiciale, and is sometimes called suppletory oath, juramentum
suppletorium.
3.-2d. That which the judge defers in order to fix and determine the
amount of the condemnation which he ought to pronounce, and which is called
juramentum in litem. Poth. on Oblig. P. 4, s. 3, art. 3.
JURAT Practice. That part of an affidavit where the officer certifies that
the same was "sworn" before him.
2. The jurat is usually in the following form, namely "Sworn and
subscribed before me, on the ____ day of _______, 1842, J. P. justice of the
peace."
3. In some cases it has been holden that it was essential that the
officer should sign the jurat, and that it should contain his addition and
official description. 3 Caines, 128. But see 6 Wend. 543; 12 Wend. 223; 2
Cowen. 552 2 Wend. 283; 2 John. 479; Harr. Dig. h.t.; Am. Eq. Dig.
JURATA. A certificate placed at the bottom of an affidavit, declaring that
the witness has been sworn or affirmed to the truth of the facts therein
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alleged. Its usual form is,: Sworn (or affirmed) before me, the ____ day of
____, 10 __." The Jurat. (q.v.)
JURATS, officers. In some English corporations, jurats are officers who have
much the same power as aldermen in others. Stat. 1 Ed. IV. Stat. 2 & 3 Ed.
VI. c. 30; 13 Ed. I., c. 26.
JURE. By law; by right; in right; as, jure civilis, by the civil law; jure
gentium, by the law of nations; jure representationis, by right of
representation; jure uxoris, in right of a wife.
JURE, WRIT OF, Engl. law. The name of a writ commanding the defendant to
show by what right he demands common of pasture in the land of the
complainant, who claims to have a fee in the same. F. N. B. 299.
JURIDICAL. Signifies used in courts of law; done in conformity to the laws
of the country, and the practice which is there observed.
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JUS UTENDI. The right to use property, without destroying its substance. It
is employed in contradistinction to the jus abutendi. (q.v.) 3 Toull. n.
86.
JUST. This epithet is applied to that which agrees with a given law which is
the test of right and wrong. 1 Toull. prel. n. 5 Aust. Jur. 276, n. It is
that which accords with the perfect rights of others. Wolff, Inst. Sec. 83;
Swinb. part 1, s. 2, n. 5, and part 1, Sec. 4, n. 3. By just is also
understood full and perfect, as a just weight Swinb. part 1, s. 3, U. 5.
JUSTICE. The constant and perpetual disposition to render every man his due.
Just. Inst. B. 1, tit. 1. Toullier defines it to be the conformity of our
actions and our will to the law. Dr. Civ. Fr. tit. prel. n. 5. In the most
extensive sense of the word, it differs little from virtue, for it includes
within itself the whole circle of virtues. Yet the common distinction
between them is that that which considered positively and in itself, is
called virtue, when considered relatively and with respect to others, has
the name of justice. But justice being in itself a part of virtue, is
confined to things simply good or evil, and consists in a man's taking such
a proportion of them as he ought.
2. Justice is either distributive or commutative. Distributive justice
is that virtue whose object is to distribute rewards and punishments to each
one according to his merits, observing a just proportion by comparing one
person or fact with another, so that neither equal persons have unequal
things, nor unequal persons things equal. Tr. of Eq. 3, and Toullier's
learned note, Dr. Civ. Fr. tit. prel. n. 7, note.
3. Commutative justice is that virtue whose object it is to render to
every one what belongs to him, as nearly as may be, or that which governs
contracts. To render commutative justice, the judge must make an equality
between the parties, that no one may be a gainer by another's loss. Tr. Eq.
3.
4. Toullier exposes the want of utility and exactness in this division
of distributive and commutative justice, adopted in the compendium or
abridgments of the ancient doctors, and prefers the division of internal and
external justice; the first being a conformity of our will, and the latter a
conformity of our actions to the law: their union making perfect justice.
Exterior justice is the object of jurisprudence; interior justice is the
object of morality. Dr. Civ. Fr. tit. prel. n. 6 et 7.
5. According to the Frederician code, part 1, book 1, tit. 2, s. 27,
justice consists simply in letting every one enjoy the rights which he has
acquired in virtue of the laws. And as this definition includes all the
other rules of right, there is properly but one single general rule of
right, namely, Give every one his own. See, generally, Puffend. Law of
Nature and Nations, B. 1, c. 7, s. 89; Elementorum Jurisprudentiae
Universalis, lib. 1, definito, 17, 3, 1; Geo. Lib. 2, c. 11, s. 3; Ld. Bac.
Read. Stat. Uses, 306; Treatise of Equity, B. 1, c. 1, s. 1.
JUSTICES. Judges. Officers appointed by a competent authority to administer
justice. They are so called, because, in ancient times the Latin word for
judge was justicia. This term is in common parlance used to designate
justices of the peace.
JUSTICES IN EYRE. They were certain judges established if not first
appointed, A. D. 1176, 22 Hen. II. England was divided into certain
circuits, and three justices in eyre, or justices itinerant, as they were
sometimes called, were appointed to each district, and made the circuit of
the kingdom once in seven years for the purpose of trying causes. They were
afterwards directed by Magna Charta, c. 12, to be sent into every county
once a year. The itinerant justices were sometimes mere justices of assize
or dower, or of general gaol delivery, and the like. 3 Bl. Com. 58-9;
Crabb's Eng. Law, 103-4. Vide Eire.
JUSTICES OF THE PEACE. Public officers invested with judicial powers for the
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purpose of preventing breaches of the peace, and bringing to punishment
those who have violated the law.
2. These officers, under the Constitution of the United States and some
of the states, are appointed by the executive in others, they are elected by
the people, and commissioned by the executive. In some states they hold
their office during good behaviour, in others for a limited period.
3. At common law, justices of the peace have a double power in relation
to the arrest of wrong doers; when a felony or breach of the peace has been
committed in their presence, they may personally arrest the offender, or
command others to do so; and in order to prevent the riotous consequences of
a tumultuous assembly, they may command others to arrest affrayers, when the
affray has been committed in their presence. If a magistrate be not present
when a crime is committed, before he can take a step to arrest the offender,
an oath or affirmation must be made by some person cognizant of the fact
that the offence has been committed, and that the person charged is the
offender, or there is probable cause to believe that he has committed the
offence.
4. The Constitution of the United States directs, that "no warrants
shall issue, but upon probable cause, supported by oath or affirmation."
Amend. IV. After his arrest, the person charged is brought before the
justice of the peace, and after bearing he is discharged, held to bail to
answer to the complaint, or, for want of bail, committed to prison.
5. In some, perhaps all the United States, justices of the peace have
jurisdiction in civil cases, given to them by local regulations. In
Pennsylvania, their jurisdiction in cases of contracts, express or implied,
extends to one hundred dollars. Vide, generally, Burn's Justice; Graydon's
Justice Baches Manual of a Justice of the Peace Com. Dig. h.t.; 15 Vin. Ab.
3; Bac. Ab. h.t.; 2 Sell. Pr. 70; 2 Phil. Ev. 239; Chit. Pr. h.t.; Amer.
Dig. h.t.
JUSTICIAR, or JUSTICIER. A judge, or justice the same as justiciary.
JUSTICIARII ITINERANTES, Eng. law. They were formerly justices, who were so
called because they went from county to county to administer justice. They
were usually called justices in eyre, (q.v.) to distinguish them from
justices residing at Westminster, who were called justicii residentes. Co.
Litt. 293. Vide Itinerant.
JUSTICIARII RESIDENTES, Eng. law. They were justices or judges, who usually
resided in Westminster; they were so called to distinguish them from
justices in eyre. Co. Litt. 293. Vide Justiciarii Itinerantes.
JUSTICIARY, officer. Another name for a judge. In Latin, he was called
justiciarius, and in French, justicier. Not used. Bac. Ab. Courts and their
Jurisdiction, A.
JUSTICIES, Eng. law. The name of a writ which acquires its name from the
mandatory words which it contains, "that you do A B justice."
2. The county court has jurisdiction in cases where damages are
claimed, only to a certain amount; but sometimes suits are brought there,
when greater damages are claimed. In such cases, an original writ, by this
name, issues out of chancery, in order to give the court jurisdiction. See 1
Saund. 74, n. 1.
JUSTIFIABLE HOMICIDE. That which is committed with the intention to kill, or
to do a grievous bodily injury, under circumstances which the law holds
sufficient to exculpate the person who commits it.
2. It is justifiable, 1. When a judge or other magistrate acts in
obedience to the law. 2. When a ministerial officer acts in obedience to a
lawful warrant, issued by a competent tribunal. 3. When a subaltern officer,
or soldier, kills in obedience to the lawful commands of his superior. 4.
When the party kills in lawful self-defence.
3.-1. A judge who, in pursuance of his duty, pronounces sentence of
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death, is not guilty of homicide; for it is evident, that as the law
prescribes the punishment of death for certain offences, it must protect
those who are entrusted with its execution. A judge, therefore, who
pronounces sentence of death, in a legal manner, on a legal indictment,
legally brought before him, for a capital offence committed within his
jurisdiction, after a lawful trial and conviction, of the defendant, is
guilty of no offence.
4.-2. Magistrates, or other officers entrusted with the preservation
of the public peace, are justified in committing homicide, or giving orders
which lead to it, if the excesses of a riotous assembly cannot be otherwise
be repressed.
5-2. An officer entrusted with a legal warrant, criminal or civil,
and lawfully commanded by a competent tribunal to execute it, will be
justified in committing homicide, if, in the course of advancing to
discharge his duty, he be brought into such perils that, without doing so,
he cannot either save his life, or discharge the duty which he is commanded
by the warrant to perform. And when the warrant commands him to put a
criminal to death, he is justified in obeying it.
6.-3. A soldier on duty is justified in committing homicide, in
obedience to the command of his officer, unless the command was something
plainly unlawful.
7.-4. A private individual will, in many cases, be justified in
committing homicide, while acting in self-defence. See Self-defence. Vide,
generally, 1 East, P. C. 219; Hawk. B. 1, c. 28, s. 1, n. 22; Alis. Prin.
126-139; 1 Russ. on Cr. 538; Bac. Ab. Murder, &c., E; 2 Wash. C. C. 515; 4
Mass. 891; 1 Hawk's R. 210; 1 Coxe's R. 424; 5 Yerg. 459; 9 C. & P. 22; S. C.
38 Eng. C. L. R. 20.
JUSTIFICATION. The act by which a party accused shows and maintains a good
and legal reason in court, why he did the thing he is called upon to answer.
2. The subject will be considered by examining, 1. What acts are
justifiable. 2. The manner of making the justification. 3. Its effects.
3.-1. The acts to be justified are those committed with a warrant,
and those committed without a warrant. 1. It is a general rule, that a
warrant or execution, issued by a court having jurisdiction, whether the
same be right or wrong, justifies the officer to whom it is directed and who
is by law required to execute it, and is a complete justification to the
officer for obeying its command. But when the warrant is not merely
voidable, but is absolutely void, as, for want of jurisdiction in the court
which issued it, or by reason of the privilege of the defendant, as in the
case of the arrest of an ambassador, who cannot waive his privilege and
immunities by submitting to be arrested on such warrant, the officer is no
longer justified. 1 Baldw. 240; see 4 Mass. 232; 13 Mass. 286, 334; 14 Mass.
210. 2. A person may justify many acts, while acting without any authority
from a court or magistrate. He may justifiably, even, take the life of an
aggressor, while acting in the defence of himself, his wife, children, and
servant, or for the protection of his house, when attacked with a felonious
intent, or even for the protection of his personal property. See Self-
defence. A man may justify what would, otherwise, have been a trespass, an
entry on the land of another for various purposes; as, for example, to
demand a debt due to him by the owner of the land to remove chattels which
belong to him, but this entry must be peaceable; to exercise an incorporeal
right; ask for lodging's at an inn. See 15 East, 615, note e; 2 Lill. Ab.
134; 15 Vin. Ab. 31; Ham. N. P. 48 to 66; Dane's Ab. Index, h.t.; Entry. It
is an ancient principle of the common law, that a trespass may be justified
in many cases. Thus: a man may enter on the land of another, to kill a fox
or otter, which are beasts against the common profit. 11 H. VIII. 10. So, a
house may be pulled down if the adjoining one be on fire, to prevent a
greater destruction. 13 H. VIII. 16, b. Tua res agitur paries cum proximus
ardet. So, the suburbs of a city may be demolished in time of war, for the
good of the commonwealth. 8 Ed. IV. 35, b. So, a man may enter on his
neighbor to make a bulwark in defence of the realm. 21 H. VIII. b. So, a
house may be broken to arrest a felon. 13 Ed. IV. 9, a; Doder. Eng. Law.
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219, 220. In a civil action, a man may justify a libel, or slanderous words,
by proving their truth, or because the defendant had a right, upon the
particular occasion, either to write and publish the writing, or to utter
the words; as, when slanderous words are found in a report of a committee of
congress, or in an indictment, or words of a slanderous nature are uttered
in the course of debate in the legislature by a member, or at the bar, by
counsel, when properly instructed by his client on the subject. See Debate;
Slander; Com. Dig. Pleader, 2 L 3 to 2 L 7.
4.-2. In general, justification must be specially pleaded, and it
cannot be given in evidence under the plea of the general issue.
5.-3. When the plea of justification is supported by the evidence, it
is a complete bar to the action. Vide Excuse.
K.
KENTUCKY. The name of one of the new states of the United States of America.
2. This state was formerly a part of Virginia, and the latter state, by
an act of the legislature, passed December 18, 1789, "consented that the
district of Kentucky, within the jurisdiction of the said commonwealth, and
according to its actual boundaries at the time of passing the act aforesaid,
should be formed into a new state." By the act of congress of February. 4,
1791, 1 Story's L. U. S. 168, congress consented that, after the first day
of June, 1792, the district of Kentucky should be formed into a new state,
separate from and independent of the commonwealth of Virginia. And by the
second section it is enacted, that upon the aforesaid first day of June,
1792, the said new state, by the name and style of the state of Kentucky
shall be received and admitted into the Union, as a new and entire member of
the United States of America.
3. The constitution of this state was adopted August 17, 1799. The
powers of the government are divided into three distinct departments, and
each of them is confided to a separate body of magistracy, to wit: those
which are legislative, to one; those which are executive, to another; and
those which are judicial, to another.
4.-1. The legislative power is vested in two distinct branches; the
one styled the house of representatives, and the other the senate; and both
together, the general assembly of the commonwealth of Kentucky. 1. The house
of representatives is elected yearly, and consists of not less than fifty-
eight, nor more than one hundred members. 2. The members of the senate are
elected for four years. The senate consists of twenty-four members, at
least, and for every three members above fifty-eight which shall be added to
the house of representatives, one member shall be added to the senate.
5.-2. The executive power is vested in a chief magistrate, who is
styled the governor of the commonwealth of Kentucky. The governor is elected
for four years. He is commander-in-chief of the army and navy of the
commonwealth, except when called into actual service of the United States.
He nominates, and, with the consent of the senate, appoints all officers,
except those whose appointment is otherwise provided for. He is invested
with the pardoning power, except in certain cases, as impeachment and
treason. A lieutenant-governor is chosen at every election of governor, in
the same manner, and to continue in office for the same time as the
governor. He is ex officio, speaker of the senate, and acts as governor when
the latter is impeached, or removed from office, or dead, or refuses to
qualify, resigns, or is absent from the state.
6.-3. The judicial power, both as to matters of law and equity, is
vested in one supreme court, styled the court of appeals, and in such
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inferior courts as the general assembly may, from time to time, erect and
establish. The judges hold their office during good behaviour.
KINTLIDGE, merc. law. This term is used by merchants and seafaring men to
signify a ship's ballast. Mere. Dict.
KISSING. Kissing the bible is a ceremony used in taking the corporal oath,
the object being, as the canonists say, to denote the assent of the witness
to the oath in the form it is imposed. The witness kisses either the whole
bible, or some portion of it; or a cross in some countries. See the
ceremony explained in Oughton's Ord. Tit. Constit. on Courts, part 3, sect.
1, Sec. 3 Junkin on the Oath, 173, 180; 2 Evan's Pothier, 234.
KNAVE. A false, dishonest, or deceitful person. This signification of the
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word has arisen by a long perversion of its original meaning.
2. To call a man a knave has been held to be actionable. 1 Rolle's Ab.
52; 1 Freem. 277.,
KNIGHT'S FEE, old Eng. law. An uncertain measure of land, but, according to
some opinions it is said to contain six hundred and eighty acres. Co. Litt.
69, a.
KNIGHT'S SERVICE, Eng. law. It was, formerly, a tenure of lands. Those who
held by knight's service were called: milites qui per loricas terras suas
defendunt;: soldiers who defend the country by their armor. The incidents of
knight's service were. homage, fealty, warranty, wardship, marriage,
reliefs, heriots, aids, escheats, and forfeiture. Vide Socage.
KNOWINGLY, pleadings. The word knowingly," or "well knowing," will supply
the place of a positive averment in an indictment or declaration, that the
defendant knew the facts subsequently stated; if notice or knowledge be
unnecessarily stated, the allegation may be rejected as surplusage. Vide
Com. Dig. Indictment, G 6; 2 Stra. 904; 2 East, 452; 1 Chit. Pl. *367; Vide
Scienter.
KNOWLEDGE. Information as to a fact.
2. Many acts are perfectly innocent when the party performing them is
not aware of certain circumstances attending them for example, a man may
pass a counterfeit note and be guiltless, if he did not know it was so he
may receive stolen goods if he were not aware of the fact that they were
stolen. In these and the like cases it is the guilty knowledge which makes
the crime. See, as to the manner of proving guilty knowledge, Arch. Cr. Pl.
110, 111. Vide Animal. Dog; Evidence ignorance; Scienter.
END OF VOLUME I.
L.
LABEL. A narrow slip of paper or parchment, affixed to a deed or writing
hanging at or out of the same. This name is also given to an appending seal.
LABOR. Continued operation; work.
2. The labor and skill of one man is frequently used in a partnership,
and valued as equal to the capital of another.
3. When business has been done for another, and suit is brought to
recover a just reward, there is generally contained in the declaration, a
count for work and labor.
4. Where penitentiaries exist, persons who have committed crimes are
condemned to be imprisoned therein at labor.
LACHES. This word, derived from the French lecher, is nearly synonymous with
negligence.
2. In general, when a party has been guilty of laches in enforcing his
right by great delay and lapse of time, this circumstance will at common law
prejudice, and sometimes operate in bar of a remedy which it is
discretionary and not compulsory in the court to afford. In courts of
equity, also delay will generally prejudice. 1 Chit. Pr. 786, and the cases
there cited; 8 Com. Dig. 684; 6 Johns. Ch. R. 360.
3. But laches may be excused from, ignorance of the party's rights; 2
Mer. R. 362; 2 Ball & Beat. 104; from the obscurity of the transaction; 2
Sch. & Lef. 487; by the pendancy of a suit; 1 Sch. & Lef. 413; and where the
party labors under a legal disability, as insanity, coverture, infancy, and
the like. And no laches can be imputed to the public. 4 Mass. Rep. 522; 3
Serg. & Rawle, 291; 4 Hen. & Munf. 57; 1 Penna. R. 476. Vide 1 Supp. to
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Ves. Jr. 436; 2 Id. 170; Dane's Ab. Index, h.t.; 4 Bouv. Inst. n. 3911.
LADY'S FRIEND. The name of a functioner in the British house of commons.
When the husband sues for a divorce, or asks the passage of an act to
divorce him from his wife, he is required to make a provision for her before
the passage of the act; it is the duty of the lady's friend to see that such
a provision is made. Macq. on H. & W. 213.
LAGA. The law; Magna Carta; hence Saxon-lage, Mercen-lage, Dane-lage, &c.
LAGAN. Goods tied to a buoy and cast into the sea are so called. The same as
Ligan. (q.v.)
LAIRESITE. The name of a fine imposed upon those who committed adultery or
fornication. Tech. Dict. h.t.
LAITY. Those persons who do not make a part of the clergy. In the United
States the division of the people into clergy and laity is not authorized by
law, but is, merely conventional.
LAMB. A ram, sheep or ewe, under the age of one year. 4 Car. & P. 216; S. C.
19 Eng. Com. Law Rep. 351.
LAND. This term comprehends any found, soil or earth whatsoever, as meadows,
pastures, woods, waters, marshes, furze and heath. It has an indefinite
extent upwards as well as downwards; therefore land, legally includes all
houses and other buildings standing or built on it; and whatever is in a
direct line between the surface and the centre of the earth, such as mines
of metals and fossils. 1 Inst. 4 a; Wood's Inst. 120; 2 B1. Com. 18; 1
Cruise on Real Prop. 58. In a more confined sense, the word land is said to
denote "frank tenement at the least." Shep. To. 92. In this sense, then,
leaseholds cannot be said to be included under the word lands. 8 Madd. Rep.
635. The technical sense of the word land is farther explained by Sheppard,
in his Touch. p. 88, thus: "if one be seised of some lands in fee, and
possessed of other lands for years, all in one parish, and he grant all his
lands in that parish (without naming them) in fee simple or for life; by
this grant shall pass no, more but the lands he hath in fee simple." It is
also said that land in its legal acceptation means arable land. 11 Co. 55 a.
See also Cro. Car. 293; 2 P. Wms. 458, n.; 5 Ves. 476; 20 Vin. Ab. 203.
2. Land, as above observed, includes in general all the buildings
erected upon it; 9 Day, R. 374; but to this general rule there are some
exceptions. It is true, that if a stranger voluntarily erect buildings on
another's land, they will belong to the owner of the land, and will become a
part of it; 16 Mass. R. 449; yet cases are, not wanting where it has been
decided that such an erection, under peculiar circumstances, would be
considered as personal property. 4 Mass. R. 514; 8 Pick. R. 283, 402; 5
Pick, R. 487; 6 N. H. Rep. 555; 2 Fairf. R. 371; 1 Dana, R. 591; 1 Burr.
144.
LAW, CIVIL. The term civil law is generally applied by way of eminence to
the civil or municipal law of the Roman empire, without distinction as to
the time when the principles of such law were established or modified. In
another sense, the civil law is that collection of laws comprised in the
institutes, the code, and the digest of the emperor Justinian, and the novel
constitutions of himself and some of his successors. Ersk. Pr. L. Scotl. B.
1, t. l, s. 9; 6 L. R. 494.
2. The Institutes contain the elements or first principles of the Roman
law, in four books. The Digests or Pandects are in fifty books, and contain
the opinions and writings of eminent lawyers digested in a systematical
method, whose works comprised more than two thousand volumes, The new code,
or collection of imperial constitutions, in twelve books; which was a
substitute for the code of Theodosius. The novels or new constitutions,
posterior in time to the other books, and amounting to a supplement to the
code, containing new decrees of successive emperors as new questions
happened to arise. These form the body of the Roman law, or corpus juris
civilis, as published about the time of Justinian.
3. Although successful in the west, these laws were not, even in the
lifetime of the emperor universally received; and after the Lombard invasion
they became so totally neglected, that both the Code and Pandects were lost
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till the twelfth century, A. D. 1130; when it is said the Pandects were
accidentally discovered at Amalphi, and the Code at Ravenna. But, as if
fortune would make an atonement for her former severity, they have since
been the study of the wisest men, and revered as law, by the politest
nations.
4. By the term civil law is also understood the particular law of each
people, opposed to natural law, or the law of nations, which are common to
all. Just. Inst. l. 1, t. 1, Sec. 1, 2; Ersk. Pr. L. Scot. B. 1, t. 1, s. 4.
In this sense it, is used by Judge Swift. See below.
5. Civil law is also sometimes understood as that which has emanated
from the secular power opposed to the ecclesiastical or military.
6. Sometimes by the term civil law is meant those laws which relate to
civil matters only; and in this sense it is opposed to criminal law, or to
those laws which concern criminal matters. Vide Civil.
7. Judge Swift, in his System of the Laws of Connecticut, prefers the
term civil law, to that of municipal law. He considers the term municipal to
be too limited in its signification. He defines civil law to be a rule of
human action, adopted by mankind in a state of society, or prescribed by the
supreme power of the government, requiring a course of conduct not repugnant
to morality or religion, productive of the greatest political happiness, and
prohibiting actions contrary thereto, and which is enforced by the sanctions
of pains and penalties. 1 Sw. Syst. 37. See Ayl. Pand. B. 1, t. 2, p. 6.
See, in general, as to civil law, Cooper's Justinian the Pandects; 1
Bl. Com. 80, 81; Encyclopedie, art. Droit Civil, Droit Romain; Domat, Les
Loix Civiles; Ferriere's Dict.; Brown's Civ. Law; Halifax's Analys. Civ.
Law; Wood's Civ. Law; Ayliffe's Pandects; Hein. Elem. Juris.; Erskine's
Institutes; Pothier; Eunomus, Dial. 1; Corpus Juris Civilis; Taylor's Elem.
Civ. Law.
LAW, COMMON. The common law is that which derives its force and authority
from the universal consent and immemorial practice of the people. It has
never received the sanction of the legislature, by an express act, which is
the criterion by which it is distinguished from the statute law. It has
never been reduced to writing; by this expression, however, it is not meant
that all those laws are at present merely oral, or communicated from former
ages to the present solely by word of mouth, but that the evidence of our
common law is contained in our books of Reports, and depends on the general
practice and judicial adjudications of our courts.
2. The common law is derived from two sources, the common law of
England, and the practice and decision of our own courts. In some states the
English common law has been adopted by statute. There is no general rule to
ascertain what part of the English common law is valid and binding. To run
the line of distinction, is a subject of embarrassment to courts, and the
want of it a great perplexity to the student. Kirb. Rep. Pref. It may,
however, be observed generally, that it is binding where it has not been
superseded by the constitution of the United States, or of the several
states, or by their legislative enactments, or varied by custom, and where
it is founded in reason and consonant to the genius and manners of the
people.
3. The phrase "common law" occurs in the seventh article of the
amendments of the constitution of the United States. "In suits at common
law, where the value in controversy shall not exceed twenty dollar says that
article, "the right of trial by jury shall be preserved. The "common law"
here mentioned is the common law of England, and not of any particular
state. 1 Gall. 20; 1 Bald. 558; 3 Wheat. 223; 3 Pet. R. 446; 1 Bald. R.
554. The term is used in contradistinction to equity, admiralty, and
maritime law. 3 Pet. 446; 1 Bald. 554.
4. The common law of England is not in all respects to be taken as that
of the United States, or of the several states; its general principles are
adopted only so far as they are applicable to our situation. 2 Pet, 144; 8
Pet. 659; 9 Cranch, 333; 9 S. & R. 330; 1 Blackf 66, 82, 206; Kirby, 117; 5
Har. & John. 356; 2 Aik. 187; Charlt. 172; 1 Ham. 243. See 5 Cow. 628; 5
Pet. 241; 1 Dall. 67; 1 Mass. 61; 9 Pick. 532; 3 Greenl. 162; 6 Greenl. 55;
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3 Gill & John. 62; Sampson's Discourse before the Historical Society of New
York; 1 Gallis. R. 489; 3 Conn. R. 114; 2 Dall. 2, 297, 384; 7 Cranch, R.
32; 1 Wheat. R. 415; 3 Wheat. 223; 1 Blackf. R. 205; 8 Pet. R. 658; 5 Cowen,
R. 628; 2 Stew. R. 362.
LAW, CRIMINAL. By criminal law is understood that system of laws which
provides for the mode of trial of persons charged with criminal offences,
defines crimes, and provides for their punishments.
LAW, FOREIGN. By foreign laws are understood the laws of a foreign country.
The states of the American Union are for some purposes foreign to each
other, and the laws of each are foreign in the others. See Foreign laws.
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LAW OF NATIONS. The science which teaches the rights subsisting between
nations or states, and the obligations correspondent to those rights.
Vattel's Law of Nat. Prelim. Sec. 3. Some complaints, perhaps not unfounded,
have been made as to the want of exactness in the definition of this term.
Mann. Comm. 1. The phrase "international law" has been proposed, in its
stead. 1 Benth. on Morals and Legislation, 260, 262. It is a system of rules
deducible by natural reason from the immutable principles of natural
justice, and established by universal consent among the civilized
inhabitants of the world; Inst. lib. 1, t. 2, Sec. 1; Dig. lib. 1, t. 1, l.
9; in order to decide all disputes, and to insure the observance of good
faith and justice in that intercourse which must frequently occur between
them and the individuals belonging to each or it depends upon mutual
compacts, treaties, leagues and agreements between the separate, free, and
independent communities.
2. International law is generally divided into two branches; 1. The
natural law of nations, consisting of the rules of justice applicable to the
conduct of states. 2. The positive law of nations, which consist of, 1. The
voluntary law of nations, derived from the presumed consent of nations,
arising out of their general usage. 2. The conventional law of nations,
derived from the express consent of nations, as evidenced in treaties and
other international compacts. 3. The customary law of nations, derived from
the express consent of nations, as evidenced in treaties and other
international compacts between themselves. Vattel, Law of Nat. Prel.
3. The various sources and evidence of the law of nations, are the
following: 1. The rules of conduct, deducible by reason from the nature of
society existing among independent states, which ought to be observed among
nations. 2. The adjudication of international tribunals, such as prize
courts and boards of arbitration. 3. Text writers of authority. 4.
Ordinances or laws of particular states, prescribing rules for the conduct
of their commissioned cruisers and prize tribunal's. 5. The history of the
wars, negotiations, treaties of peace, and other matters relating to the
public intercourse of nations. 6. Treaties of peace, alliance and commerce,
declaring, modifying, or defining the pre-existing international law. Wheat.
Intern. Law, pt. 1, c. 1, Sec. 14.
4. The law of nations has been divided by writers into necessary and
voluntary; or into absolute and arbitrary; by others into primary and
secondary, which latter has been divided into customary and conventional.
Another division, which is the one more usually employed, is that of the
natural and positive law of nation's. The natural law of nations consists of
those rules, which, being universal, apply to all men and to all nations,
and which may be deduced by the assistance of revelation or reason, as being
of utility to nations, and inseparable from their existence. The positive
law of nations consists of rules and obligations, which owe their origin,
not to the divine or natural law, but to human compacts or agreements,
either express or implied; that is, they are dependent on custom or
convention.
5. Among the Romans, there were two sorts of laws of nations, namely,
the primitive, called primarium, and the other known by the name of
secundarium. The primarium, that is to say, primitive or more ancient, is
properly the only law of nations which human reason suggests to men; as the
worship of God, the respect and submission which children have for their
parents, the attachment which citizens have for their country, the good
faith which ought to be the soul of every agreement, and the like. The law
of nations called secundarium, are certain usages which have been
established among men, from time to time, as they have been felt to be
necessary. Ayl. Pand. B. 1, t. 2, p. 6.
As to the law of, nations generally, see Vattel's Law of Nations;
Wheat. on Intern. Law; Marten's Law of Nations; Chitty's Law of Nations;
Puffend. Law of Nature and of Nations, book 3; Burlamaqui's Natural Law,
part 2, c. 6; Principles of Penal Law, ch. 13; Mann. Comm. on the Law of
Nations; Leibnitz, Codex Juris Gentium Diplomaticus; Binkershoek,
Quaestionis Juris Publici, a translation of the first book of which, made by
Mr. Duponceau, is published in the third volume of Hall's Law Journal;
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Kuber, Droit des Gens Modeme de l'Europe; Dumont, Corps Diplomatique; Mably,
Droit Public de l'Europe; Kent's Comm. Lecture 1.
LAW OF NATURE. The law of nature is that which God, the sovereign of the
universe, has prescribed to all men, not by any formal promulgation, but by
the internal dictate of reason alone. It is discovered by a just
consideration of the agreeableness or disagreeableness of human actions to
the nature of man; and it comprehends all the duties which we owe either to
the Supreme Being, to ourselves, or to our neighbors; as reverence to God,
self-defence, temperance, honor to our parents, benevolence to all, a strict
adherence to our engagements, gratitude, and the like. Erskine's Pr. of L. of
Scot. B. 1, t. 1, s. 1. See Ayl. Pand. tit. 2, p. 5; Cicer. de Leg. lib. 1.
2. The primitive laws of nature may be reduced to six, namely: 1.
Comparative sagacity, or reason. 2. Self-love. 3. The attraction of the
sexes to each other. 4. The tenderness of parents towards their children. 5.
The religious sentiment. 6. Sociability.
3.-1. When man is properly organized, he is able to discover moral
good from moral evil; and the study of man proves that man is not only an
intelligent, but a free being, and he is therefore responsible for his
actions. The judgment we form of our good actions, produces happiness; on
the contrary the judgment we form of our bad actions produces unhappiness.
4.-2. Every animated being is impelled by nature to his own
preservation, to defend his life and body from injuries, to shun what may be
hurtful, and to provide all things requisite to his existence. Hence the
duty to watch over his own preservation. Suicide and duelling are therefore
contrary to this law; and a man cannot mutilate himself, nor renounce his
liberty.
5.-3. The attraction of the sexes has been provided for the
preservation of the human race, and this law condemns celibacy. The end of
marriage proves that polygamy, (q.v.) and polyendry, (q.v.) are contrary
to the law of nature. Hence it follows that the husband and wife have a
mutual and exclusive right over each other.
6.-4. Man from his birth is wholly unable to provide for the least of
his necessities; but the love of his parents supplies for this weakness.
This is one of the most powerful laws of nature. The principal duties it
imposes on the parents, are to bestow on the child all the care its weakness
requires, to provide for its necessary food and clothing, to instruct it, to
provide for its wants, and to use coercive means for its good, when
requisite.
7.-5. The religious sentiment which leads us naturally towards the
Supreme Being, is one of the attributes which belong to humanity alone; and
its importance gives it the rank of the moral law of nature. From this
sentiment arise all the sects and different forms of worship among men.
8.-6. The need which man feels to live in society, is one of the
primitive laws of nature, whence flow our duties and rights; and the
existence of society depends upon the condition that the rights of all shall
be respected. On this law are based the assistance, succors and good offices
which men owe to each other, they being unable to provide each every thing
for himself.
LAW, PENAL. One which inflicts a penalty for a violation of its enactment.
LAW, PROSPECTIVE. One which provides for, and regulates the future acts of
men, and does not interfere in any way with what has past.
LAW, PUBLIC. A public law is one in which all persons have an interest.
LAW, RETROSPECTIVE. A retrospective law is one that is to take effect, in
point of time, before it was passed.
2. Whenever a law of this kind impairs the obligation of contracts, it
is void. 3 Dall. 391. But laws which only vary the remedies, divest no
right, but merely cure a defect in proceedings otherwise fair, are valid. 10
Serg. & Rawle, 102, 3; 15 Serg. & Rawle, 72. See Ex post facto.
LAWS OF THE HANSE TOWNS. A code of maritime laws known as the laws of the
Hanse towns, or the ordinances of the Hanseatic towns, was first published
in German, at Lubec, in 1597. In an assembly of deputies from the several
towns held at Lubec, these laws were afterwards, May 23, 1614, revised and
enlarged. The text of this digest, and a Latin translation, are published
with a commentary by Kuricke; and a French translation has been given by
Cleirac.
LEGALIS HOMO. A person who stands rectus in curia, who possesses all his
civil rights. A lawful man. One who stands rectus in curia, not outlawed nor
infamous. In this sense are the words probi et legates homines.
LEGANTINE CONSTITUTIONS. The name of a code of ecclesiastical laws, enacted
in national synods under Pope Gregory IX., and Pope Clement IV., about the
years from 1220 to 1230.
LEGATORY, dead man's part or share. (q.v.) The third part of a freeman's
personal estate, which by the custom of London, in case he had a wife and
children, the freeman might always have disposed of by will. Bac. Ab.
Customs of London, D 4.
LEGISLATIVE POWER. The authority under the constitution to make laws and to
alter or repeal them.
LEGITIMACY. The state of being born in wedlock; that is, in a lawful manner.
2. Marriage is considered by all civilized nations as the only source
of legitimacy; the qualities of husband and wife must be possessed by the
parents in order to make the offspring legitimate; and furthermore the
marriage must be lawful, for if it is void ab initio, the children who may
be the offspring of such marriage are not legitimate. 1 Phil. Ev. Index,
h.t.; Civ. Code L. art. 203 to 216.
3. In Virginia, it is provided by statute of 1787, "that the issue of
marriages deemed null in law, shall nevertheless be legitimate." 3 Hen. &
Munf. 228, n.
4. A conclusive, presumption of legitimacy arises from marriage and
cohabitation; and proof of the mother's irregularities will not destroy this
presumption: pater est quem nuptiae demonstrant. To rebut this presumption,
circumstances must be shown which render it impossible that the husband
should be the father, as impotency and the like. 3 Bouv. Inst. n. 300-2.
Vide Bastard; Bastardy; Paternity; Pregnancy.
LEGITIMATE. That which is according to law; as, legitimate children, are
lawful children, born in wedlock, in contradistinction to bastards;
legitimate authority, or lawful power, in opposition to usurpation.
LEGITIMATION. The act of giving the character of legitimate children to
those who were not so born.
2. In Louisiana, the Civil Code, art. 217, enacts that "children born
out of marriage, except those who are born of an incestuous or adulterous
connexion, may be legitimated by the subsequent marriage of their father and
mother whenever the latter have legally acknowledged them for their
children, either before their marriage, or by the contract of marriage
itself."
3. In most of the other states the character of legitimate children is
given to those who are not so, by special acts of assembly. In Georgia, real
estate may descend from a mother to her illegitimate children and their
representatives, and from such child, for want of descendants, to brothers
and sisters, born of the same mother, and their representatives. Prince's
Dig. 202. In Alabama, Kentucky, Mississippi, Vermont and Virginia,
subsequent marriages of parents, and recognition by the father, legitimatize
an illegitimate child and in Massachusetts, for all purposes except
inheriting from their kindred. Mass. Rev. St. 414.
4. The subsequent marriage of parents legitimatizes the child in
Illinois, but he must be afterwards acknowledged. The same rule seems to
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have been adopted in Indiana and Missouri. An acknowledgment of illegitimate
children, of itself, legitimatizes in Ohio, and in Michigan and Mississippi
marriage alone between the reputed parents has the same effect. In Maine, a
bastard inherits to one who is legally adjudged, or in writing owns himself
to be the father. A bastard may be legitimated in North Carolina, on
application of the putative father to court, either where he has married the
mother, or she is dead, or married another or lives out of the state. In a
number of the states, namely, in Alabama, Connecticut, Illinois, Indiana,
Kentucky, Maine, Massachusetts, Michigan, North Carolina, Ohio, Rhode
Island, Tennessee, Vermont, and Virginia, a bastard takes by descent from
his mother, with modifications regulated by the laws of these states. 2
Hill, Ab. s. 24 to 35, and the authorities there referred to. Vide Bastard;
Bastardy; Descent.
LEGITIME, civil law. That portion of a parent's estate of which he cannot
disinherit his children, without a legal cause. The civil code of Louisiana
declares that donations inter vivos or mortis causa cannot exceed two-thirds
of the property of the disposer if he leaves at his decease a legitimate
child; one half if he leaves two children; and one-third if he leaves three
or a greater number. Under the name of children are included descendants of
whatever degree they may be; it must be understood that they are only
counted for the child they represent. Civil. Code of Lo. art. 1480.
3. Donation inter vivos or mortis causa, cannot exceed two-thirds of
the property if the disposer having no children have a father, mother, or
both. Id. art. 1481. Where there are no descendants, and in case of the
previous decease of the father and mother, donations inter vivos and mortis
causa, may, in general, be made of the whole amount of the property of the
disposer. Id. art. 1483. The Code Civil makes nearly similar provisions.
Code Civ. L. 3, t. 2, c. 3, s. 1, art. 913 to 919.
4. In Holland, Germany, and Spain, the principles of the Falcidian law,
more or less limited, have been generally adopted. Coop. Just. 616.
5. In the United States, other than Louisiana and in England, there is
no restriction on the right of bequeathing. But this power of bequeathing
did not originally extend to all a man's personal estate; on the contrary,
by the common law, as it stood in the reign of Henry II, a man's goods were
to be divided into three equal parts, one of which went to his heirs or
lineal descendants, another to his wife, and the third was at his own
disposal; or if he died without a wife, he might then dispose of one moiety,
and the other went to his children; and so e converso if he had no children,
the wife was entitled to one moiety, and he might bequeath the other; but if
he died without either wife or issue, the whole was at his own disposal.
Glanv. 1. 2, c. 6;, Bract. 1. 2, c. 26. The shares of the wife and children
were called their reasonable part. 2 Bl. Comm. 491-2. See Death's part;
Falcidian law.
LENDER, contracts. He from whom a thing is borrowed.
2. The contract of loan confers rights, and imposes duties on the
lender. 1. The lender has the right to revoke the loan at his mere pleasure;
9 Cowen, R. 687; 8 Johns. Rep. 432; 1 T. R. 480; 2 Campb. Rep. 464; and is
deemed the owner or proprietor of the thing during the period of the loan;
so that au action for a trespass or conversion will lie in favor of the
lender against a stranger, who has obtained a wrongful possession, or has
made a wrongful conversion of the thing loaned; as mere gratuitous
permission to a third person to use a chattel does not, in contemplation of
the common law, take it out of the possession of the owner. 11 Johns. Rep.
285; 7 Cowen, Rep. 753; 9 Cowen, Rep. 687; 2 Saund. Rep. 47 b; 8 Johns. Rep.
432; 13 Johns. Rep. 141, 661; Bac. Abr. Trespass, c 2; Id. Trover, C 2. And
in this the Civil agrees with the common law. Dig. 13, 6, 6, 8; Pothier,
Pret …, Usage, ch. 1, Sec. 1, art. 2, n. 4; art. 3, n. 9; Ayliffe's Pand. B.
4, t. 16, p. 517; Domat, B. 1, t. 5, Sec. 1, n. 4; and so does the Scotch
law. Ersk. Pr. Laws of Scotl. B. 3, t. 1 Sec. 8.
3.-2. In the civil law, the first obligation on the part of the
lender, is to suffer the borrower to use and enjoy the thing loaned during
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the time of the loan, according to the original intention. Such is not the
doctrine of the common law. 9 Cowen, Rep. 687. The lender is obliged by the
civil law to reimburse the borrower the extraordinary expenses to which he
has been put for the preservation of the thing lent. And in such a case, the
borrower would have a lien on the thing, and may detain it, until these
extraordinary expenses are paid, and the lender cannot, even by an
abandonment of the thing to the borrower, excuse himself from repayment, nor
is he excused by the subsequent loss of the thing by accident, nor by a
restitution of it by the borrower, without insisting upon repayment.
Pothier, Pret … Usage, ch. 3, n. 82, 83; Dig. 13, 6, 18, 4; Ersk. Pr. Laws
of Scotl. B. 3, t. 1, Sec. 9. What would be decided at common law does not
seem very clear. Story on Bailm. Sec. 274. Another case of implied
obligation on the part of the lender by the civil law is, that he is bound
to give notice to the borrower of the defects of the thing loaned; and if he
does not and conceals them, and any injury occurs to the borrower thereby,
the lender is responsible. Dig. 13, 6, 98, 3; Poth. Pret … Usage, n. 84;
Domat, Liv. 1, t. 5, s. 3, n. 3. In the civil law there is also an implied
obligation on the part of the lender where the thing has been lost by the
borrower, and after he has paid the lender the value of it, the thing has
been restored to the lender; in such case the lender must return to the
borrower either the price or thing. Dig. 13, 6, 17, 5; Poth. Id. n. 85. "The
common law seems to recognize the same principles, though," says Judge
Story, Bailm. Sec. 276, "it would not perhaps be easy to cite a case on a
gratuitous loan directly on the point." See Borrower; Commodate; Story,
Bailm. ch. 4; Domat. Liv. 2, tit. 5; 1 Bouv. Inst. n. 1078, et seq.
LESION, contracts. In the civil law this term is used to signify the injury
suffered, in consequence of inequality of situation, by one who does not
receive a full equivalent for what he gives in a commutative contract.
2. The remedy given for this injury, is founded on its being the effect
of implied error or imposition; for in every commutative contract,
equivalents are supposed to be given and received. Louis. Code, 1854.
Persons of full age, however, are not allowed in point of law to object to
their agreements as being injurious, unless the injury be excessive. Poth.
Oblig. P. 1, c. 1, s. 1, art. 3, Sec. 4. But minors are admitted to
restitution, not only against any excessive inequality, but against any
inequality whatever. Poth. Oblig. P. 1, c. 1, s. 1, art. 3, Sec. 5; Louis.
Code, art. 1858.
3. Courts of chancery relieve upon terms of redemption and set aside
contracts entered into by expectant heirs dealing for their expectancies, on
the ground of mere inadequacy of price. 1 Vern. 167; 2 Cox, 80; 2 Cas. in
Ch. 136; 1 Vern. 141; 2 Vern. 121; 2 Freem. 111; 2 Vent. 359; 2 Vern. 14; 2
Rep. in Ch. 396; 1 P. W. 312; 1 Bro. C. C. 7; 3 P. Wms. 393, n.; 2 Atk. 133;
2 Ves. 125; 1 Atk. 301; 1 Wils. 286; 1 Wils. 320; 1 Bro. P. 6. ed. Toml.
198; 1 Bro. C. C. 1; 16 Ves. 512; Sugd. on Vend. 231, n. k.; 1 Ball & B.
330; Wightw. 25; 3 Ves. & Bea. 117; 2 Swanst. R. 147, n.; Fonb. notes to the
Treatise of Equity, B, 1, c. 2, s. 9. A contract cannot stand where the
party has availed himself of a confidential situation, in order to obtain
some selfish advantage. Note to Crowe v. Ballard. 1 Ves. jun. 125; 1 Hov.
Supp. 66, 7. Note to Wharton v. May. 5 Ves. 27; 1 Hov. Supp. 378. See
Catching bargain; Fraud; Sale.
LESSEE. He to whom a lease is made. The subject will be considered by taking
a view, 1. Of his rights. 2. Of his duties.
2.-1. He has a right to enjoy the premises leased for the term
mentioned in the lease, and to use them for the purpose agreed upon. He may,
unless, restrained by the covenants in the lease, either assign it, or
underlet the premises. 1 Cruise, Dig. 174. By an assignment of the lease is
meant the transfer of all the tenant's interest in the estate to another
person; on the contrary, an underletting is but a partial transfer of the
property leased, the lessee retaining a reversion to himself.
3.-2. The duties of the lessee are numerous. First, he is bound to
fulfill all express covenants he has entered into in relation to the premises
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leased; and, secondly, he is required to fulfill all implied covenants, which
the relation of lessee imposes upon him towards the lessor. For example, he
is bound to put the premises to no other use than that for which it was
hired; when a farm is let to him for common farming purposes, he cannot open
a mine and dig ore which may happen to be in the ground; but if the mine has
been opened, it is presumed both parties intended it should be used, unless
the lessee were expressly restrained; 1 Cruise, Dig. 132. He is required to
use the property in a tenant-like and proper manner; to take reasonable care
of it and to restore it at the end of his term, subject only to the
deterioration produced by ordinary wear and the reasonable use for which it
was demised. 12 M. & W. 827. Although he is not bound, in the absence of an
express covenant, to rebuild in case of destruction by fire or other
accident, yet he must keep the house in a habitable state if he received it
in good order. See Repairs. The lessee is required to restore the property
to the lessor at the end of the term.
4. The lessee remains chargeable, after an assignment of his term, as
before, unless the lessor has accepted the assignee; and even then he
continues liable in covenant on an express covenant, as for repairs, or to
pay rent; 2 Keb. 640; but not for the performance of an implied one, or, as
it is usually termed, a covenant in law. By the acceptance, he is discharged
from debt for arrears of future rent. Cro. Jac. 309, 334; Ham. on Parties,
129, 130.
Vide Estate for years; Lease;, Notice to quit: Tenant for years;
Underlease.
LESSOR. contr. He who grants a lease. Civ. Code of L. art. 2647.
LESTAGE, Eng: law. Duties paid for unlading goods in port. Harg. L. Tr. 75.
LET. Hindrance, obstacle, obstruction; as, without let, molestation or
hindrance.
TO LET. To hire, to lease; to grant the use and possession of something for
a compensation.
2. This term is applied to real estate and the words to hire are more
commonly used when speaking of personal estate. See Hire, Hirer, and Letter.
3. Letting is very similar to selling; the difference consists, in
this; that instead of selling the thing itself, the letter sells only the
use of it.
LETTER, com. law, Crim. law. An epistle; a despatch; a written message,
usually on paper, which is folded up and sealed, sent by one person to
another.
2. A letter is always presumed to be sealed, unless the presumption be
rebutted. 1 Caines, R. 682. 1
3. This subject will be considered by 1st. Taking a view of the law
relating to the transmission of letters through the post office; and, 2. The
effect of letters in making contracts. 3. The ownership of letters sent and
received.
4.-1. Letters are, commonly sent through the post office, and the law
has carefully provided for their conveyance through the country, and their
delivery to the persons to whom they are addressed. The act to reduce into
one the several acts establishing and regulating the post office department,
section 21, 3 Story's Laws United States, 1991, enacts, that if any person
employed in any of the departments of the post office establishment, shall
unlawfully detain, delay, or open, any letter, packet, bag, or mail of
letters, with which he shall be entrusted, or which shall have come to his
possession, and which are intended to be conveyed by post or, if any such
person shall secrete, embezzle, or destroy, any letter or packet entrusted
to such person as aforesaid, and which shall not contain any security for,
or assurance relating to money, as hereinafter described, every such
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offender, being thereof duly convicted, shall, for every such offence, be
fined, not exceeding three hundred dollars, or imprisoned, not exceeding six
months, or both, according to the circumstances and aggravations of the
offence. And if any person, employed as aforesaid, shall secrete, embezzle,
or destroy any letter, packet, bag, or mail of letters, with which he or she
shall be entrusted, or which shall have come to his or her possession, and
are intended to be conveyed by post, containing any bank notes, or bank post
bill, bill of exchange, warrant of the treasury of the United States, note
of assignment of stock in the funds, letters of attorney for receiving
annuities or dividends, or for, selling stock in the funds, or for receiving
the interest thereof, or any letter of credit, or note for, or relating to,
payment of moneys or any bond, or warrant, draft, bill, or promissory note,
covenant, contract, or agreement whatsoever, for, or relating to, the
payment of money, or the delivery of any article of value, or the
performance of any act, matter, or thing, or any receipt, release,
acquittance, or discharge of, or from, any debt; covenant, or demand, or any
part thereof, or any copy of any record of any judgment or decree, in any
court of law or chancery, or any execution which way may have issued
thereon; or any copy of any other record, or any other article of value, or
any writing representing the same or if any such person, employed as
aforesaid, shall steal, or take, any of the same out of any letter, packet,
bag, or mail of letters, that shall come to his or her possession, such
person shall, on conviction for any such offence, be imprisoned not less
than ten years, nor exceeding twenty-one years; and if any person who shall
have taken charge of the mails of the United States, shall quit or desert
the same before such person delivers it into the post office kept at the
termination of the route, or some known mail carrier, or agent of the
general post office, authorized to receive the same, every such person, so
offending, shall forfeit and pay a sum not exceeding five hundred dollars,
for every such offence; and if any person concerned in carrying the mail of
the United States, shall collect, receive, or carry any letter, or packet,
or shall cause or procure the same to be done, contrary, to this act, every
such offender shall forfeit and pay for every such offence a sum, not
exceeding fifty dollars.
5.-2. Most contracts may be formed by correspondence; and cases not
unfrequently arise where it is difficult to say whether the concurrence of
the will of the contracting parties took place or not. In order to form a
contract both parties must concur at the same time, or there is no
agreement. Suppose, for example, that Paul of Philadelphia, is desirous of
purchasing a thousand bales of cotton, and offers by letter to Peter of New
Orleans, to buy them from him at a certain price; but on the next day he
changes his mind, and then he writes to Peter that he withdraws his offer;
or on the next day he dies; in either case, there is no contract, because
Paul did not continue in the same disposition to buy the cotton, at the time
that his offer was accepted. The precise moment when the consent of both
parties is perfect, is, in strictness, when the person who made the offer
becomes acquainted with the fact that it has been accepted. But this may be
presumed from circumstances. The acceptance must be of the same precise
terms without any variance whatever. 4 Wheat. 225; see 1 Pick. 278; 10 Pick.
326; 6 Wend. 103.
6.-3. A letter received by the person to whom it is directed, is the
qualified property of such person: but where it is of a private nature, the
receiver has no right to publish it without the consent of the writer,
unless under very extraordinary circumstances; as, for example, when it is
requisite to the defence of the character of the party who received it. 2
Ves. & B. 19; 2 Atk. 542; Amb. 737; 1 Ball. & B. 207; 1 Mart. (Lo.) R. 297;
Denisart, verbo Lettres Missives. Vide Dead Letter; Jeopardy; Mail;
Newspaper; Postage; Post Master General.
LETTER, contracts. In the civil law, locator, and in the French law,
locateur, loueur, or bailleur, is he who, being the owner of a thing, lets
it out to another for hire or compensation. See Hire; Locator; Conductor;
Story on Bailm. Sec. 369.
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2. According to the French and civil law, in virtue of the contract,
the letter of a thing to hire impliedly engages that the hirer shall have
the full use and enjoyment of the thing hired, and that he will fulfill his
own engagements and trusts in respect to it, according to the original
intention of the parties. This implies an obligation to deliver the thing to
the hirer; to refrain from every obstruction to the use of it by the hirer
during the period of the bailment; to do no act which shall deprive the
hirer of the thing; to warrant the title and possession to the hirer, to
enable him to use the thing or to perform the service; to keep the thing in
suitable order and repair for the purpose of the bailment; and finally to
warrant the thing from from any fault inconsistent with the use of it. These
are the main obligations deduced from the nature of the contract, and they
seem generally founded on unexceptionable reasoning. Pothier, Louage, n. 53;
Id. n. 217; Domat, B. 1, tit. 4, Sec. 3 Code Civ. of L. tit. 9, c. 2, s. 2.
It is difficult to say how far (reasonable as they are in a general sense)
these obligations are recognized in the common law. In some respects the
common law certainly differs. See Repairs; Dougl. 744, 748; 1 Saund. 321,
32e, and ibid. note 7; 4 T. R. 318; 1 Bouv. Inst. n. 980 et seq.
LETTER, civil law. The answer which the prince gave to questions of law
which had been submitted to him by magistrates, was called letters or
epistles. See Rescripts.
LEVYING WAR, crim. law. The assembling of a body of men for the purpose of
effecting by force a treasonable object; and all who perform any part
however minute, or however remote from the scene of action, and who are
leagued in the general conspiracy, are considered as engaged in levying war,
within the meaning of the constitution. 4 Cranch R. 473-4; Const. art. 3, s.
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3. Vide Treason; Fries' Trial; Pamphl. This is a technical term, borrowed
from the English law, and its meaning is the same as it is when used in
stat. 25 Ed. III.; 4 Cranch's R. 471; U. S. v. Fries, Pamphl. 167; Hall's
Am. Law Jo. 351; Burr's Trial; 1 East, P. C. 62 to 77; Alis. Cr. Law of
Scotl. 606; 9 C. & P. 129.
LEX. The law. A law for the government of mankind in society. Among the
ancient Romans, this word was frequently used as synonymous with right, jus.
When put absolutely, lex meant the Law of the Twelve Tables.
LEX FALCIDIA, civ. law. The name of a law which permitted a testator to
dispose of three-fourths of his property, but he could not deprive his heir
of the other fourth. It was made during the reign of Augustus, about the
year of Rome 714, on the requisition of Falcidius, a tribune. Inst. 2, 22;
Dig. 35, 2; Code, 6, 50;. and Nov. 1 and 131. Vide article Legitime, and
Coop. Just. 486; Rob. Frauds, 290, note 113.
LEX FORI, practice. The law of the court or forum.
2. The forms of remedies, the modes of proceeding, and the execution of
judgments, are to be regulated solely and exclusively, by the laws of the
place where the action is instituted or as the civilians uniformly express
it, according to the lex fori. Story, Confl. of Laws, Sec. 550; 1 Caines'
Rep. 402; 3 Johns. Ch. R. 190; 5 Johns. R. 132; 2 Mass. R. 84; 7 Mass. R.
515; 3 Conn. R. 472; 7 M. R. 214; 1 Bouv. Inst. n. 860.
LEX LOCI CONTRACTUS, contracts. The law of the place where an agreement is
made.
2. Generally, the validity of a contract is to be decided by the law of
the place where, the contract is made; if valid, there it is, in general,
valid everywhere. Story, Confl. of Laws, Sec. 242, and the cases there
cited. And vice versa if void or illegal there, it is generally void
everywhere. Id Sec. 243; 2 Kent Com. 457; 4 M. R. 584; 7 M. R. 213; 11 M. R.
730; 12 M. R. 475; 1 N. S. 202; 5 N. S. 585; 6 N. S. 76; 6 L. R. 676; 6 N.
S. 631; 4 Blackf. R. 89.
3. There is an exception to the rule as to the universal validity of
contracts. The comity of nations, by virtue of which such contracts derive
their force in foreign countries, cannot prevail in cases where it violates
the law of our own country, the law of nature, or the law of God. 2 Barn. &
Cresw. 448, 471. And a further exception may be mentioned, namely, that no
nation will regard or enforce the revenue laws of another country. Cas.
Temp. 85, 89, 194.
4. When the contract is entered into in one place, to be executed in
another, there are two loci contractus; the locus celebrate contractus, and
the locus solutionis; the former governs in everything which relates to the
mode of construing the contract, the meaning to be attached to the
expressions, and the nature and validity of the engagement; but the latter
governs the performance of the agreement. 8 N. S. 34. Vide 15 Serg. & Rawle
84; 2 Mass. R. 88; 1 Nott & M'Cord, 173; 2 Harr. & Johns. 193, 221; 2 N. H.
Rep. 42; 5 Id. 401; 2 John. Cas. 355; 5 Pardes. n. 1482; Bac. Abr. Bail in
Civil Causes, B 5; Com. Dig. 545, n.; 1 Supp. to Ves. jr. 270; 8 Ves. 198; 5
Ves. 750.
LEX LONGOBARDORUM. The name of an ancient code in force among the Lombards.
It contains many evident traces of feudal policy. It survived the
destruction of the ancient government of Lombardy by Charlemagne, and is
said to be still partially in force in some districts of Italy.
LEX MERCATORIA. That system of laws which is adopted by all commercial
nations, and which, therefore, constitutes a part of the law of the land.
Vide Law Merchant.
LEX TALIONIS. The law of retaliation an example of which is given in the law
of Moses, an eye for an eye, a tooth for a tooth, &c.
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2. Jurists and writers on international law are divided as to the right
of one nation punishing with death, by way of retaliation, the citizen's or
subjects of another nation; in, the United States no example of such
barbarity has ever been witnessed but, prisoners have been kept in close
confinement in retaliation for the same conduct towards American prisoners.
Vide Rutherf. Inst. b. 2, c. 9; Mart. Law of Nat. b. 8, c. 1, s. 3, note 1
Kent, Com. 93.
3. Writers on the law of nations have divided retaliation into
vindictive and amicable: By the former are meant those acts of retaliation
which amount to a war; the latter those acts of retaliation which correspond
to the acts of the other nation under similar circumstances. Wheat. Intern.
Law, pt. 4, c. 1, Sec. 1.
LEX TERAE. The law of the land. The phrase is used to distinguish this from
the civil or Roman law.
2. By lex terrae, as used in Magna Charta, is meant one process of law,
namely, proceeding by indictment or presentment of good and lawful men. 2
Inst. 50; 19 Wend. 659; 4 Dev. R. 15. in the constitution of Tennessee, the
words "the law of the land" signify a general and public law, operating
equally upon every member of the community. 10 Yerg. 71.
LEY. This word is old French, a corruption of loi, and signifies law; for
example, Termes de la Ley, Terms of the Law. In another, and an old
technical sense, ley signifies an oath, or the oath with compurgators; as,
il tend sa ley aiu pleyntiffe. Brit. c. 27.
LEY-GAGER. Wager of Law. (q.v.)
LIABILITY. Responsibility; the state of one who is bound in law and justice
to do something which may be enforced by action. This liability may arise
from contracts either express or implied, or in consequence of torts
committed.
2. The liabilities of one man are not in general transferred to his
representative's further than to reach the estate in his hands. For example,
an executor is not responsible for the liabilities of his testator further
than the estate of the testator which has come to his hands. See Hamm. on
Part. 169, 170.
3. The husband is liable for his wife's contracts made dum sola, and
for those made during coverture for necessaries, and for torts committed
either while she was sole or since her marriage with him; but this liability
continues only during the coverture; as to her torts, or even her contracts
made before marriage; for the latter, however, she may be sued as her
executor or administrator, when she assumes that character.
4. A master is liable for the acts of his servant while in his employ,
performed in the usual course of his business, upon the presumption that
they have been authorized by him; but he is responsible only in a civil
point of view and not criminally, unless the acts have been actually
authorized by him. See Bouv. Inst. Index, h.t.; Driver; Quasi Offence;
Servant.
LIBEL, practice. A libel has been defined to be "the plaintiff's petition or
allegation, made and exhibited in a judicial process, with some solemnity of
law;" it is also, said to be "a short and well ordered writing, setting
forth in a clear manner, as well to the judge as to the defendant, the
plaintiff's or accuser's intention in judgment." It is a written statement
by a plaintiff, of his cause of action, and of the relief he seeks to obtain
in a suit. Law's Eccl. Law, 147; Ayl. Par. 346; Shelf. on M. & D. 506; Dunl.
Admr. Pr. 111; Betts. Adm. Pr. 17; Proct. Pr. h.t.; 2 Chit. Pr. 487, 533.
2. The libel should be a narrative, specious, clear, direct, certain,
not general, nor alternative. 3 Law's Eccl. Law. 147. It should contain,
substantially, the following requisites: 1. The name, description, and
addition of the plaintiff, who makes his demand by bringing his action. 2
The name, description, and addition of the defendant. 3. The name of the
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judge with a respectful designation of his office and court. 4. The thing or
relief, general or special, which is demanded in the suit. 5. The grounds
upon which the suit is founded. All these things are summed up in Latin, as
follows;
Quis, quid, coram quo, quo jure petitur, et a quo,
Recte compositus quique libellus habet:
which has been translated,
Each plaintiff and defendant's name,
and eke the judge who tries the same,
The thing demanded and the right whereby
You urge to have it granted instantly:
He doth a libel write and well compose,
Who forms the same, emitting none of those.
3. The form of a libel is either simple or articulate. The simple form
is, when the cause of action is stated in a continuous narration, when the
cause of action can be briefly set forth. The articulate form, is when the
cause of action is stated in distinct allegations, or articles. 2 Law's
Eccl. Law, 148; Hall's Adm. Pr. 123; 7 Cranch, 349. The material facts
should be stated in distinct articles in the libel, with as much exactness
and attention to times and circumstances, as in a declaration at common law.
4 Mason, 541. Pompous diction and strong epithets are out of place in a
legal paper designed to obtain the admission of the opposite party of the
averments it contains, or to lay before the court the facts which the actor
will prove.
4. Although there is no fixed formula for libels and the court will
receive such an instrument from the party in such form as his own skill or
that of his counsel may enable him to give it, yet long usage has sanctioned
forms, which it may be most prudent to adopt. The parts and arrangement of
libels commonly employed are,
5.-1. The address to the court; as, To the Honorable John K. Kane,
Judge of the district court of the United States, within and for the eastern
district of Pennsylvania.
6.-2. The names and descriptions of the parties. Persons competent to
sue at common law may be parties libellants, and similar regulations obtain
in the admiralty courts and the common law courts, respecting those
disqualified from suing in their own right or name. Married women prosecute
by their husbands, or by prochein ami, when the husband has an adverse
interest to hers; minors, by guardians, tutors, or prochein ami; lunatics
and persons non compos mentis, by tutor, guardian ad litem, or committee;
the rights of deceased persons are prosecuted by executors or
administrators; and corporations are represented, and proceeded against as
at common law.
7.-3. The averments or allegations setting forth the cause of action
should be conformable to the truth, and so framed as to correspond with the
evidence. Every fact requisite to establish the libellant's right should be
clearly stated, so that it may be directly met by the opposing party by
admission, denial or avoidance; this is the more necessary because no proof
can be given, or decree rendered, not covered by and conformable to the
allegations. 1 Law's Eccl. Laws, 150; Hall's Pr. 126; Dunl. Adm. Pr. 113; 7
Cranch, 394.
8.-4. The conclusion, or prayer for relief and process; the prayer
should be for the specific relief desired; for general relief, as is usual
in bills in chancery; the conclusion should also pray for general, or
particular process. Law's Eccl. Law, 149; and see 3 Mason, R. 503.
Interrogatories are sometimes annexed to the libel; when this is the case,
there is usually a special prayer, that the defendant may be required to
answer the libel, and the interrogatories annexed and propounded. This,
however, is a dangerous practice, because it renders the answers of the
defendant evidence, which must be disproved by two witnesses, or by one
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witness, corroborated by very strong circumstances.
9. The libel is the first proceeding in a suit in admiralty in the
courts of the United States. 3 Mason, R., 504. It is also used in some other
courts. Vide, generally, Dunl. Adm. Pr. ch. 3; Bett's Adm. Pr. s. 3; Shelf.
on. M. & D. 606; Hall's Adm. Pr. Index, h.t.; 3 Bl. Com. 100; Ayl. Par.
Index, h.t.; Com. Dig. Admiralty, E; 2 Roll. &b. 298.
LIBEL, libellus, criminal law. A malicious defamation expressed either in
printing or writing, or by signs or pictures, tending to blacken the memory
of one who is dead, with intent to provoke the living; or the reputation of
one who is alive, and to expose him to public hatred, contempt, or ridicule.
Hawk. b. 1, c. 73, s. 1; Wood's Inst, 444; 4 Bl. Com. 150; 2 Chitty, Cr.
Law, 867; Holt on Lib. 73; 5 Co. 125; Salk. 418; Ld. Raym. 416; 4. T. R.
126; 4 Mass. R. 168; 9 John. 214; 1 Den. Rep. 347; 2 Pick. R. 115; 2 Kent,
Com. 13. It has been defined perhaps with more precision to be a censorious
or ridiculous writing, picture or sign made with a malicious or mischievous
intent, towards government magistrates or individuals. 3 John. Cas. 354; 9
John. R. 215; 5 Binn. 340.
2. In briefly considering this offence, we will inquire, 1st. By what
mode of expression a libel may be conveyed. 2d. Of what kind of defamation
it must consist. 3d. How plainly it must be expressed. 4th. What mode of
publication is essential.
3.-1. The reduction of the slanderous matter to writing, or printing,
is the most usual mode of conveying it. The exhibition of a picture,
intimating that which in print would be libelous, is equally criminal. 2
Camp. 512; 5 Co. 125; 2 Serg. & Rawle 91. Fixing a gallows at a man's door,
burning him in effigy, or exhibiting him in any ignominious manner, is a
libel. Hawk. b. 1, c. 73, s. 2,; 11 East, R. 227.
4.-2. There is perhaps no branch of the law which is so difficult to
reduce to exact, principles, or to compress within a small compass, as the
requisites of a libel. All publications denying the Christian religion to be
true; 11 Serg. & Rawle, 394; Holt on Libels, 74; 8 Johns. R. 290; Vent. 293;
Keb. 607; all writings subversive of morality and tending to inflame the
passions by indecent language, are indictable at common law. 2 Str. 790;
Holt on Libels, 82; 4 Burr. 2527. In order to constitute a libel, it is not
necessary that anything criminal should be imputed to the party injured; it
is enough if the writer has exhibited him in a ludicrous point of view; has
pointed him out as an object of ridicule or disgust; has, in short, done
that which has a natural tendency to excite him to revenge. 2 Wils. 403;
Bacon's Abr. Libel, A 2; 4 Taunt. 355; 3 Camp. 214; Hardw. 470; 5 Binn.
349. The case of Villars v. Monsley, 2 Wils. 403, above cited, was grounded
upon the following verses, which were held to be libelous, namely:
LIBERATION, civil law. This term is synonymous with payment. Dig. 50, 16,
47. It is the extinguishment of a contract by which he who was bound
become's free, or liberated. Wolff, Dr. de la Nat. Sec. 749.
LIBERTI, LIBERTINI. These two words were, at different times, made to
express among the Romans, the condition of those who, having been slaves,
had been made free. 1 Brown's Civ. Law, 99. There is some distinction
between these words. By libertus, was understood the freedman, when
considered in relation to his patron, who had bestowed liberty upon him and
he was called libertinus, when considered in relation to the state he
occupied in society since his manumission. Lec. El. Dr. Rom. Sec. 93.
LIBERTY. Freedom from restraint. The power of acting as one thinks fit,
without any restraint or control, except from the laws of nature.
2. Liberty is divided into civil, natural, personal, and political.
3. Civil liberty is the power to do whatever is permitted by the
constitution of the state and the laws of the land. It is no other than
natural liberty, so far restrained by human laws, and no further, operating
equally upon all the citizens, as is necessary and expedient for the general
advantage of the public. 1 Black. Com. 125; Paley's Mor. Phil. B. 6, c.5;
Swifts Syst. 12
4. That system of laws is alone calculated to maintain civil liberty,
which leaves the citizen entirely master of his own conduct, except in those
points in which the public good requires some direction and restraint. When a
LIBERTY OF SPEECH. The right given by the constitution and the laws to
public support in speaking facts or opinions.
2. In a republican government like ours, liberty of speech cannot be
extended too far, when its object is the public good. It is, therefore,
wisely provided by the constitution of the United States, that members of
congress shall not be called to account for anything said in debate; and
similar provisions are contained in the constitutions of the several states
in relation to the members of their respective legislatures. This right,
however, does not extend beyond the mere speaking; for if a member of
congress were to reduce his speech to writing and cause it to be printed, it
would no longer bear a privileged character and he might be held responsible
for a libel, as any other individual. Bac. Ab. Libel, B.* See Debate.
3. The greatest latitude is allowed by the common law to counsel; in
the discharge of his professional duty he may use strong epithets, however
derogatory to other persons they may be, if pertinent to the cause, and
stated in his instructions, whether the thing were true or false. But if he
were maliciously to travel out of his case for the purpose of slandering
another, he would be liable to an action, and amenable to a just and often
more efficacious punishment inflicted by public opinion. 3 Chit. Pr. 887. No
respectable counsel will indulge himself with unjust severity; and it is
doubtless the duty of the court to prevent any such abuse.
LIBERUM TENEMENTUM, pleading. The name of a plea in an action of trespass,
by which the defendant claims the locus in quo to be his soil and freehold,
or the soil and freehold of a third person, by whose command he entered. 2
Salk. 453; 7 T. R. 355; 1 Saund. 299, b, note.
LIBERUM TENEMENTUM, estate. The same as, freehold, (q.v.) or frank
tenement. 2 Bouv. Inst. n. 1690.
LICENSE, contracts. A right given by some competent authority to do an act,
which without such authority would be illegal. The instrument or writing
which secures this right, is also called a license. Vide Ayl. Parerg, 353;
15 Vin. Ab. 92; Ang. Wat. Co. 61, 85.
2. A license is express or implied. An express license is one which in
direct terms authorizes the performance of a certain act; as a license to
keep a tavern given by public authority.
3. An implied license is one which though not expressly given, may be
presumed from the acts of the party having a right to give it. The following
are examples of such licenses: 1. When a man knocks at another's door, and
it is opened, the act of opening the door licenses the former to enter the
house for any lawful purpose. See Hob. 62. A servant is, in consequence of
his employment, licensed to admit to the house, those who come on his
master's business, but only such persons. Selw. N. P. 999; Cro. Eliz. 246.
It may, however, be inferred from circumstances that the servant has
authority to invite whom he pleases to the house, for lawful purposes. See 2
Greenl. Ev. Sec. 427; Entry.
4. A license is either a bare authority, without interest, or it is
coupled with an interest. 1. A bare license must be executed by the party to
whom it is given in person, and cannot be made over or assigned by him to
another; and, being without consideration, may be revoked at pleasure, as
long as it remains executory; 39 Hen. VI. M. 12, page 7; but when carried
into effect, either partially or altogether, it can only be rescinded, if in
its nature it will admit of revocation, by placing the other side in the
same situation in which he stood before he entered on its execution. 8 East,
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R. 308; Palm. 71; S. C. Poph. 151; S. C. 2 Roll. Rep. 143, 152.
5.-2. When the license is coupled with an interest the authority
conferred is not properly a mere permission, but amounts to a grant, which
cannot be revoked, and it may then be assigned to a third person. 5 Hen. V.,
M. 1, page 1; 2 Mod. 317; 7 Bing. 693; 8 East, 309; 5 B. & C. 221; 7 D. & R.
783; Crabb on R. P. Sec. 521 to 525; 14 S. & R 267; 4 S. & R. 241; 2 Eq.
Cas. Ab. 522. When the license is coupled with an interest, the formalities
essential to confer such interest should be observed. Say. R. 3; 6 East, R.
602; 8 East, R. 310, note. See 14 S. & R. 267; 4 S. & R. 241; 2 Eq. Cas. Ab.
522; 11 Ad. & El. 34, 39; S. C. 39 Eng, C. L. R. 19.
LICENSE, International law. An authority given by one of two belligerent
parties, to the citizens or subjects of the other, to carry on a specified
trade.
2. The effects of the license are to suspend or relax the rules of war
to the extent of the authority given. It is the assumption of a state of
peace to the extent of the license. In the country which grants them,
licenses to carry on a pacific commerce are stricti juris, as being
exceptions to the general rule; though they are not to be construed with
pedantic accuracy, nor will every small deviation be held to vitiate the
fair effect of them. 4 Rob. Rep. 8; Chitty, Law of Nat. 1 to 5, and 260; 1
Kent, Com. 164, 85.
LICENTIOUSNESS. The doing what one pleases without regard to the rights of
others; it differs from liberty in this, that the latter is restrained by
natural or positive law, and consists in doing whatever we please, not
inconsistent, with the rights of others, whereas the former does not respect
those rights. Wolff, Inst. Sec. 84.
LICET. It is lawful; not forbidden by law. Id omne licitum est, quod non est
legibus prohibitum; quamobrem, quod, lege permittente, fit, poenam non
meretur.
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TO LIE. That which is proper, is fit; as, an action on the case lies for an
injury committed without force; corporeal hereditaments lie in livery, that
is, they pass by livery; incorporeal hereditaments lie in grant, that is,
pass by the force of the grant, and without any livery. Vide Lying in grant.
LIEGE, from the Latin, ligare, to bind. The bond subsisting between the
subject and chief, or lord and vassal, binding the one to protection and
just government, the other to tribute and due subjection. The prince or
chief is called liege lord; the subjects liege men. The word is now applied
as if the liegance or bond were only to attach the people to the prince.
Stat. 8 Hen. VI. c. 10; 14 Hen. VIII. c. 2; 1 Bl. Com. 367.
LIEGE POUSTIE, Scotch law. The condition or state of a person who is in his
ordinary health and capacity, and not a minor, nor cognosced as an idiot or
madman, nor under interdiction. He is then said to be in liege poustie, or
in legitima potestati, and he has full power of disposal of his property. 1
Bell's Com. 85, 5th ed.; 6 Clark & Fin. 540. Vide Sui juris.
LINE, descents. The series of persons who have descended from a common
ancestor, placed one under the other, in the order of their birth. It
connects successively all the relations by blood to each other. Vide
Consanguinity; Degree.
³ A ³
³ s ³ ÚÄ 6. Tritavus, Tritavia.
³ c ³ ÃÄ 5. Atavus, Atavia.
³ e ³ ÃÄ 4. Abavus, Abavia.
³ n ³ Great grand- ³ ³
³ d Ä´ father, great ÃÄ ÃÄ 3. Proavus, Proavia.
³ i ³ grandmother, ³ ³
³ n ³ ³
³ g ³ Grand father, ³ ³
³ ³ grandmother ÃÄ ÃÄ 2. Avus, Avia.
³ l ³ ³
³ i ³ Father, mother ÃÄ 1. Pater, Mater.
³ n ³ ³
³ e ³ ³
EGO. ÃÄ EGO.
³ D ³ ³
³ e ³ ³
³ s ³ Son. ÃÄ 1. Filius.
³ c ³ Grandson ÃÄ 2. Nepos, Nepti.
³ e ³ Great Grandson. ÃÄ 3. Pronepos, Proneptis.
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³ n ³ ÃÄ 4. Abnepos, Abneptis.
³ d ³ ÃÄ 5. Adnepos, Adneptis.
³ i ³ ÃÄ 6. Trinepos, Trineptis.
³ n ³
³ g ³
³ ³
³ L ³
³ i ³
³ n ³
³ e ³
2. The line is either direct or collateral. The direct line is composed
of all the persons who are descended from each other. If, in the direct
line, any one person is assumed the propositus, in order to count from him
upwards and downwards, the line will be divided into two parts, the
ascending and descending lines. The ascending line is that, which counting
from the propositus, ascends to his ancestors, to his father, grandfather,
great-grandfather, &c. The descending line, is that which, counting from the
same person, descends to his children, grandchildren, great-grand-children,
&c. The preceding table is an example.
3. The collateral line considered by itself, and in relation to the
common ancestor, is a direct line; it becomes collateral when placed along
side of another line below the common ancestor, in whom both lines unite for
example:
Common ancestor.
O
ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ ³
o o
³ ³
o o
Direct ³ ³ Collateral
line. o o line.
³ ³
o o
³ ³
o o
³ ³
O o
Ego.
4. These two lines are independent of each other; they have no
connexion, except by their union in the person of the common ancestor. This
reunion is what forms the relation among the persons composing the two
lines.
5. A line is also paternal or maternal. In the examination of a
person's ascending line, the line ascends first to his father, next to his
paternal grandfather, his paternal great-grandfather, &c. so on from father
to father; this is called the paternal line. Another line will be found to
ascend from the same person to his mother, his maternal grandmother, and so
from mother to mother; this is the maternal line. These lines, however, do
not take in all the ascendants, there are many others who must be imagined.
The number of ascendants is double at each degree, as is shown by the
following table:
ÚÄÄÄÄÄ o
³
ÚÄÄÄÄÄoÄÄÄÄ´
³ ³
³ ÀÄÄÄÄÄ o
³
ÚÄÄÄÄÄÄ´
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³ ³
F ³ ³ ÚÄÄÄÄÄ o
a ³ ³ ³
t ³ ÀÄÄÄÄÄoÄÄÄÄ´
h ³ ³
e ³ ÀÄÄÄÄÄ o
r ³
ÚÄÄOÄÄ´
³ ³
P ³ O ³ ÚÄÄÄÄÄ o
a ³ t ³ ³
t ³ h ³ ÚÄÄÄÄÄoÄÄÄÄ´
e ³ e ³ ³ ³
r ³ r ³ ³ ÀÄÄÄÄÄ o
n ³ ³ ³
a ³ L ÀÄÄÄÄÄÄ´
l ³ i ³
³ n ³ ÚÄÄÄÄÄ o
L ³ e ³ ³
i ³ ÀÄÄÄÄÄoÄÄÄÄ´
n ³ ³
e ³ ÀÄÄÄÄÄ o
³
Ego. OÄÄÄÄÄ´
³
M ³ ÚÄÄÄÄÄ o
a ³ ³
t ³ ÚÄÄÄÄÄoÄÄÄÄ´
e ³ ³ ³
r ³ O ³ ÀÄÄÄÄÄ o
n ³ t ³
a ³ h ÚÄÄÄÄÄ´
l ³ e ³ ³
³ r ³ ³ ÚÄÄÄÄÄ o
l ³ ³ ³ ³
i ³ l ³ ÀÄÄÄÄÄoÄÄÄÄ´
n ³ i ³ ³
e ³ n ³ ÀÄÄÄÄÄ o
³ e ³
ÀÄÄÄoÄÄ´
³
M ³ ÚÄÄÄÄÄ o
o ³ ³
t ³ ÚÄÄÄÄÄoÄÄÄÄ´
h ³ ³ ³
e ³ ³ ÀÄÄÄÄÄ o
r ³ ³
ÀÄÄÄÄÄ´
³
³ ÚÄÄÄÄÄ o
³ ³
ÀÄÄÄÄÄoÄÄÄÄ´
³
ÀÄÄÄÄÄ o
Vide 2 Bl. Com. 200, b. 2, c. 14; Poth. Des Successions, ch. 1, art. 3,
Sec. 2; and article Ascendants.
LINE, measures. A line is a lineal measure containing the one twelfth part
of a on inch.
LINE, estates. The division between two estates. Limit; border; boundary.
2. When a line is mentioned in a deed as ending at a particular
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monument, (q.v.) it is to be extended in the direction called for, without
regard to distance, until it reach the boundary. 1 Taylor, 110, 303 2 Hawks,
219; 3 Hawks, 21; 2 Taylor, 1. And a marked line is to be adhered to
although it depart from the course. 7 Wheat. 7; 2 Overt. 304; 3 Call, 239; 7
Monr. 333; 2 Bibb, 261; 4 Bibb, 503; 4 Monr. 29; see further, 2 Dana, 2; 6
Wend. 467; 1 Bibb, 466; 1 Marsh. 382; 3 Marsh. 382; 3 Murph. 82; 13 Pick.
145; 13 Wend. 300; 5 J. J. Marsh. 587.
3. Where a number of persons settle simultaneously or at short
intervals in the same neighborhood, and their tracts, if extended in certain
directions, would overlap each other, the settlers sometimes by agreement
determine upon dividing lines, which are called consentible lines. These
lines, when fairly agreed upon, have been sanctioned by the courts; and such
agreements are conclusive upon all persons claiming under the parties to
them with notice, but not upon bona fide purchasers for a valuable
consideration without notice, actual or constructive. 5 S. & R. 273; 9 W. &
S. 66; 3 S & R. 323; 5 Binn. 129; 10 Watts, 324; 17 S. &. R. 57; Jones, L.
0. T.
4. Lines fixed by compact between nations are binding on their citizens
and subjects. 11 Pet. 209; 1 Overt. 269; 1 Ves. sen., Rep. 450; 1 Atk. R. 2;
1 Ch. Cas. 85; 1 P. Wms. 723727; 2 Atk. R. 592; 1 Vern. 48; 1 Ves. 19; 2
Ves. 284; 3 S. & R. 331.
LINEAGE. Properly speaking lineage is the relationship of persons in a
direct line; as the grandfather, the father, the son, the grandson, &c.
LINEAL. That which comes in a line. Lineal consanguinity is that which
subsists between persons, one of whom is descended in a direct line from the
other. Lineal descent, is that which takes place among lineal kindred.
LINEAL WARRANTY, old English law. A warranty by the heir, when he derived
title to the land warranted, either from or through, the ancestor who made
the warranty. See Warranty.
LIQUIDATED. That which is made clear, certain, and manifest; as, liquidated
damages, ascertained damages liquidated debt, an ascertained debt, as to
amount. A debt is liquidated when it is certain what is due, and how much is
due, cum certum est an et quantum debeatur; for although it may appear that
something is due, if it does not also appear how much is due, the debt is
not liquidated. An unliquidated claim is one which one of the parties to the
contract cannot alone render certain. 5 M. R. 11; 1 N. S. 130; 6 N S. 715; 6
N. S. 10, 13 L. R. 275; 7 L. R. 134, 599. Such a claim cannot be set off. 2
Dall. 237; S. C. 1 Yeates' R. 571; 10 Serg. & Rawle, 14; see Poth. Ob. n.
628; Dig. 50, 17, 24; Id. 42, 1, 64; Id. 1, 45, 112; Id. 46, 5, 11; Code, 7,
47. Dom. Lois Civ. l. 4, t. 2, s. 2, n. 2; Arg. Inst. 1. 4, c. 7; 7 Toull.
n. 369; 6 Duv. Dr. Civ. Fr. n. 304.
LIQUIDATED DAMAGES. By this term is understood the fixed amount which a
party to an agreement promises to pay to the other, in case he shall not
fulfill some primary or principal engagement into which he has entered by the
same agreement it differs from a penalty. (q.v.) Vide Damages liquidated.
2. The damages will be considered as liquidated in the following cases:
1. When the damages are uncertain, and not capable of being ascertained by
any satisfactory or known rule; whether the uncertainty lies in the nature
of the subject itself, or in the particular circumstances of the case. 2 T.
R. 32 1 Ale. & N. 389; 2 Burr. 2225 10 Ves. 429; 7 Cowen, 307; 4 Wend. 468.
2. When, from the nature of the case, and the tenor of the agreement, it is
clear, that the damages have been the subject of actual and fair calculation
and adjustment between the parties. 2 Greenl. Ev. Sec. 259; 2 Story, Eq.
Sec. 1318; 3 C. & P. 240; 10 Mass. 450, 462; 6 Bro. P. C. 436; 3 Taunt. 473;
7 John. 72; 4 Mass. 433; 3 Conn. 58; 1 Bouv. Inst. n. 655, 765.
LIQUIDATION. A fixed and determinate valuation of things which before were
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uncertain.
LIRA. The name of a foreign coin. In all computations at the custom house,
the lira of Sardinia shall be estimated at eighteen cents and six mills. Act
of March 22, 1846. The lira of the Lombardo-Venetian Kingdom, and the lira
of Tuscany, at sixteen cents. Act of March 22, 1846.
LIS. A suit; an action; a controversy in court; a dispute.
LIS MOTA. The cause of the suit or action. By this term is understood the
commencement of the controversy, and the beginning of the suit. 4 Campb. R.
417; 6 Carr. & P. 552, 561; 2 Russ. & My. 161; Greenl. Ev. Sec. 131, 132.
LIS PENDENS. The pendancy of a suit; the time between which it is instituted
and finally decided.
2. It has been decided that the mere serving of a subpoena in chancery,
unless a bill be also filed, is not a sufficient lis pendens, but the bill
being filed, the lis pendens commences from the service of the subpoena,
although that may not be returnable till the following term 1 Vern. 318; and
after a decree, final in its nature, there remains no lis pendens. 1 Vern.
459.
3. It is a general rule, that lis pendens is a general notice of an
equity to all the world. 3 Atk. 343; 2 P. Wms. 282; Amb. 676; 1 Vern. 286.
Vide 2 Fonb. Eq. 152, note; 1 Supp. to Ves. jr. 284; 3 Rawle, R. 14; Pow.
Mortg. index, h.t.; 1 John. Ch. R. 566; 2 John. Ch. R. 158; 4 John. Ch.
Rep. 83; 2 Rand. Rep. 93; 1 M'Cord, Ch. R. 264; Harp. Eq. R. 224; 1 Bibb, R.
314; 5 Ham. Rep. 462; 4 Cowen, R. 667; 1 Wend. R. 583; 1 Desaus. R. 167,
170; 2 Edw. R. 115; 1 Hogan, R. 69; 6 Har. & John. 21; 2 Dana, R. 480; Jac.
R. 202; 1 Russ. & My. 617 Corn. Dig. Chancery, 4 C 3; 2 Bell's Com. 152, 5th
ed.; 1 Bail. Eq. R. 479; 7 Dana, R. 110; 7 J. J. Marsh. 529; 1 Clarke, R.
560, 584; 14 Ohio, 109, 323.
4. When a defendant is arrested pending a former suit or action, in
which he was held to bail, he will not, in general, be held to bail, if the
second suit be for the same cause of action. Grah. Pr. 98; Tro. & Hal. Pr.
44; 4 Yeates' R. 206. But under special circumstances, he may be held to
bail twice, and of these circumstances the court will judge. 2 Miles, Rep.
99, 100, 142. See 14 John. R. 347. When such a second action is commenced,
the first ought to be discontinued and the costs paid; but, it seems, it is
sufficient if they are paid before the replication of nul tiel record to a
plea of autre action pendant. in the second suit. Grah. Pr. 98; and see 1
John. Cas. 397; 7 Taunt. 151; 1 Marsh. R. 395; Merl. Rep. Litispendance; 5
Ohio R. 462; 6 Ohio R. 225; 1 Blackf. R. 53; Id. 315; Autre action pendent;
Bail; Litigiosity.
LIST. A table of cases arranged for trial or argument; as, the trial list,
the argument list. See 3 Bouv. Inst. n. 3031.
LISTERS. This word is used in some of the states to designate the persons
appointed to make lists of taxables. See Verm. Rev. Stat. 538.
LITERAL CONTRACT, civil law. A contract, the whole of the evidence of which
is reduced to writing. This contract is perfected by the writing, and binds
the party who subscribed it, although he has received no consideration. Leg.
Elem. Sec. 887.
LITERARY PROPERTY. This name has been given to the right which authors have
in their works. This is secured to them by copyright. (q.v.) Vide 2 Bl.
Com. 405-6; 4 Vin. Ab. 278; Bac. Ab. Prorogation, F 5; 2 Kent, Com. 306 to
315; 1 Supp. to Ves. jr. 360, 376; 2 Id. 469; Nicklin on Literary Property;
Dane's Ab. Index, b. t.; 1 Chit. Pr. 98; 2 Amer. Jur. 248; 10 Amer. Jur. 62;
1 Law Intel. 66; Curt. on Copyr. 11; 1 Bell's Com. B. 1, part 2, c. 4, s.
2, p. 115; 1 Bouv. Inst. n. 508, et seq. Vide Copyright.
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LITIGANT. One engaged in a suit; one fond of litigation.
LITIGATION. A contest authorized by law, in a court of justice, for the
purpose of enforcing a right.
2. In order to prevent injustice, courts of equity will restrain a
party from further litigation, by a writ of injunction; for example, after
two verdicts on trials at bar, in favor of the plaintiff, a perpetual
injunction was decreed. Str. 404. And not only between two individuals will
a court of equity grant this relief, as in the above case of several
ejectments, but also, when one general legal right, as a right of fishery,
is claimed against several, distinct persons, in which case there would be
no end of bringing actions, since each action would only bind the particular
right in question, between the plaintiff and defendant in such action,
without deciding the general right claimed. 2 Atk. 484; 2 Ves. jr. 587. Vide
Circuity of Actions.
LITIGIOSITY, Scottish law. The pendency of a suit; it is an implied
prohibition of alienation to the disappointment of an action, or of
diligence, the direct object of which is to obtain possession, or to acquire
the property of a particular subject. The effect of it is analogous to that
of inhibition. (q.v.) 2 Bell's Com. 152, 5th ed. Vide Lis Pendens.
LITIGIOUS. That which is the subject of a suit or action; that which is
contested in a court of justice. In another sense, litigious signifies a
disposition to sue; a fondness for litigation.
LITIGIOUS RIGHTS, French law. Those which are or may be contested either in
whole or in part, whether an action has been commenced, or when there is
reason to apprehend one. Poth. Vente, n. 584; 9 Mart. R. 183; Troplong, De
la Vente, n. 984 a 1003; Civ. Code of Lo. art. 2623; Id. 3522, n. 22. Vide
Contentious jurisdiction.
LITIS CONTESTATIO, civil law. "Contestari." It is when each party to a suit
(uterque reus) says "Teste estote." It was therefore, so called, because
persons were called on by the parties to the suit "to bear witness," "to be
witnesses." It is supposed that this contestatio was the usual termination
of certain acts before the magistratus or in jure, of which the persons
called to be witnesses were at some future time to bear record before the
judex, in judicio. The lis contestata, in the system of Justinian, consisted
in the statements made by. the parties to a suit before the magistrate
respecting the claim or demand, and the answer or defence to it. When this
was done, the cause was ready for hearing. Savig. Traite de Droit Romain,
tom. vi. Sec. cclviii.; Smith, Dict. Gr. & Rom. Antiq. h.v. The contesting
of the suit, or pleading the general issue. Vide 2 Bro. Civ. and Adm. Law,
358.
LITISPENDENCE. The part of an action being depending and undetermined; the
time during which an action is pending. See Lis pendens.
LITRE. A French measure of capacity. It is of the size of a decimetre, or
one-tenth part of a cubic metre. It is equal to 61.028 cubic inches. Vide
Measure.
LIVERY, Engl. law. 1. The delivery of possession of lands to those tenants
who hold of the king in capite, or knight's service. 2. Livery was also the
name of a writ which lay for the heir of age, to obtain the possession of
seisin of his lands at the king's hands. F. N. B. 155. 3. It signifies, in
the third place, the clothes given by a nobleman or gentleman to his
servant.
LIVERY OF SEISIN, estates. A delivery of possession of lands, tenements, and
hereditaments, unto one entitled to the same. This was a ceremony used in
the common law for the conveyance of real estate; and the livery was in
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deed, which was performed by the feoffor and the feoffee going upon the
land, and the latter receiving it from the former; or in law, where the game
was not made on the land, but in sight of it. 2 Bl. Com. 315, 316.
2. In most of the states, livery of seisin is unnecessary, it having
been dispensed with either by express law or by usage. The recording of the
deed has the same effect. In Maryland, however, it seems that a deed cannot
operate as a feoffment, without livery of seisin. 5 Harr. & John. 158. Vide
4 Kent, Com. 381 2 Hill, Ab. c. 26, s. 4; 1 Misso. R. 553; 1 Pet. R. 508; 1
Bay's R. 107; 5 Har. & John. 158; Fairf. R. 318; Dane's Abridgment, h.t.;
and the article Seisin.
LIVRE TOURNOIS, com. law. A coin used in France before the revolution. It is
to be computed in the ad valorem duty on goods, &c., at eighteen and a half
cents. Act of March 2, 1798, s. 61, 1 Story's L. U. S. 626. Vide Foreign
Coins.
LOADMANAGE, maritime law, contracts. The pay to loadsmen; that is, persons
who sail or row before ships, in barks or small vessels, with instruments
for towing the ship, and directing her course, in order that she may escape
the dangers in her way. Poth. Des Avaries, n. 147; Guidon de la Mer, ch. 14;
Bac. Ab. Merchant and Merchandise, F.
LOAN, contracts. The act by which a person lets another have a thing to be
used by him gratuitously, and which is to be returned, either in specie or
in kind, agreeably to the terms of the contract. The thing which is thus
transferred is also called a loan. 1 Bouv. Inst. n. 1077.
2. A loan in general implies that a thing is lent without reward; but,
in some cases, a loan may be for a reward; as, the loan of money. 7 Pet. R.
109.
3. In order to make a contract usurious, there must be a loan; Cowp.
112, 770; 1 Ves. jr. 527; 2 Bl. R. 859; 3 Wils. 390 and the borrower must be
bound to return the money at all events. 2 Scho. & Lef. 470. The purchase of
a bond or note is not a loan ; 3 Scho. & Lef. 469; 9 Pet. R 103; but if such
a purchase be merely colorable, it will be considered as a loan. 2 John.
Cas. 60; Id. 66; 12 S. & R. 46; 15 John. R. 44.
LOAN FOR CONSUMPTION, or, MUTUUM. (q.v.) A contract by which the owner of
a personal chattel, called the lender, delivers it to another, known as the
borrower, by which it is agreed that the borrower shall consume the chattel
loaned, and return at the time agreed upon, another chattel, of the same
quality, kind, and number, to the lender, either gratuitously or for a
consideration; as, if Peter lends to Paul one bushel of wheat, to be used by
the latter, so that it shall not be returned to Peter, but instead of which
Paul will return to Peter another bushel of wheat of the same kind and
quality, at a time agreed upon.
2. It is evident that this contract differs essentially from a loan for
use. In the latter, the property of the thing lent remains with the lender,
and, if it be destroyed without the fault or negligence of the borrower, it
is his loss, and the thing to be returned is the identical thing lent; but
in the loan for consumption, the property passes to the borrower, and in
case of its destruction, he must bear the loss, and the identical property
is never to be returned, but other property of the like kind, quality, and
number. This contract bears a nearer resemblance to a barter or exchange; in
a loan for consumption the borrower agrees to exchange with the lender a
bushel of wheat, which he has not, but expects to obtain, for another bushel
of wheat which the lender now has, and with which he is willing to part; or
a more familiar example may be given: Debtor borrows from Creditor, one
hundred dollars to use as he shall deem best, and he promises to return to
Creditor another hundred dollars at a future time.
3. In cases of loan for consumption, the lender may charge for the use
of the thing loaned or not; as, if I lend one thousand dollars to a friend
for a month, I may charge interest or not but a loan for use is always
gratuitous when anything is charged for the use, it becomes a hiring. See
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Hire; and also Mutuum.
LOAN FOR USE, or COMMODATUM, contracts. A bailment, or loan of an article
for a certain time, to be used by the borrower, without paying for it. 2
Kent's Com. 446, 447. Sir William Jones defines it to be a bailment of a
thing for a certain time, to be used by the borrower, without paying for it.
Jones' Bailm. 118. According to the Louisiana Code, art. 2864, it is an
agreement by which a person delivers a thing to another, to use it according
to its natural destination, or according to the agreement, under an
obligation on the part of the borrower, to return it after he shall have
done using it. This loan is essentially gratuitous. The Code Civil, art.
1875, defines it in nearly the same words. Lord Holt has defined this
bailment to be, when goods or chattels, that are useful, are lent to a
friend gratis, to be used by him: and it is called commodatum, he adds,
because the thing is to be restored in specie. 2 Ld. Ray. 909, 913.
2. The loan for use resembles somewhat a gift, for the lender, as in a
gift, gives something to the borrower; but it differs from the latter,
because there the property of the thing given is transferred to the donee;
instead of which, in the loan for use, the thing given is only the use, and
the property in the thing lent remains in the lender. This contract has also
some analogy to the mutuum, or loan for consumption; but they differ in
this, that in the loan for use the lender retains the property in the thing
lent, and it must be returned in individuo; in the loan for consumption, on
the contrary, the things lent are to be consumed, such as money, corn, oats,
grain, cider, &c., and the property in them is transferred to the borrower,
who becomes a debtor to the lender for the same quantity of like articles.
Poth. Pret a. Usage, n. 9, 10.
3. Several things are essential to constitute this contract; first,
there must be a thing which is lent; and this, according to the civil law,
may be either a thing movable, as a horse, or an immovable, as a house or
land, or goods, or even a thing incorporeal. But in our law, the contract
seems confined entirely to goods and chattels, or personal property, and not
to extend to real estate. It must be a thing lent, in contradistinction to a
thing deposited or sold, or entrusted to another for the purpose of the
owner. Story on Bailm. Sec. 223.
4. Secondly. It must be lent gratuitously, for if any compensation is
to be paid in, any manner whatsoever, it falls under Another denomination,
that of hire. Ayliffe's Pand. B. 4, tit. 16, n. 516; Louis. Code, art. 2865;
Pothier, Pret a Usage, c. 1, art. 1, n. 1, c. 2, art., 3, n. 11.
5. Thirdly. It must be lent for use, and for the use of the borrower.
It is not material whether the use be exactly that which is peculiarly
appropriate to the thing lent, as a loan of a bed to lie on, or a loan of a
horse to ride; it is equally a loan, if the thing is lent to the borrower
for any other purpose; as, to pledge as a security on his own account. Story
on Bailm. Sec. 225. But the rights of the borrower are strictly confined to
the use actually or impliedly agreed to by the lender, and cannot be
lawfully exceeded. Poth. Pret a Usage, c. 1, Sec. 1, art. l, n. 5. The use
may be for a limited time, or for an indefinite time.
6. Fourthly. The property must be lent to be specifically returned to
the lender at the determination of the bailment; and, in this respect it
differs from a mutuum, or loan for consumption, where the thing borrowed,
such as corn, wine, and money, is to be returned in kind and quantity. See
Mutuum. It follows, that a loan for use can never be of a thing which is to
be consumed by use; as, if wine is lent to be drunk at a feast, even if no
return in kind is intended, unless, perhaps, so far as it is not drunk; for,
as to, all the rest, it is strictly a gift.
7. In general, it may be said that the borrower has the right to use
the thing during the time and for the purpose which was intended between the
parties. But this right is strictly confined to the use, expressed or
implied in the particular transaction; and the borrower, by any excess, will
make himself responsible. Jones' Bailm. 68; Cro. Jac. 244; 2 Ld. Raym.
909,916; 1 Const. Rep. So. Car. 121; Louis. Code: art. 2869; Code Civil,
art. 1881; 2 Bulst. 306.
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8. The obligations of the borrower are to take proper care of the thing
borrowed, to use it according to the intention of the lender, to restore it
in proper time, and to restore it in proper condition. Story on Bailm. Sec.
236; Louis. Code, art. 2869; Code Civ. 1880.
9. By the common law, this bailment may always be terminated at the
pleasure of the lender. (q.v.) Vin. Abr. Bailment, D; Bac. Abr. Bailment,
D.
10. The property in the thing lent in a loan for use, remains in the
lender, Story on Bailment, Sec. 283; Code Civil, art. 1877; Louis. Code,
art. 2866.
11. It is proper to remark that the loan for use must be lawful; a loan
by Peter to Paul of a ladder to enable him to commit a larceny, or of a gun,
to commit a murder, is not a loan for use, but Peter by this act becomes an
accomplice of Paul. 17 Duv. n. 503; 6 Duv. n. 32.
LOCAL. Pertaining to a place; something annexed to the freehold or tied to a
certain place; as, local courts, or courts whose jurisdiction is limited to
a particular place; local allegiance, or allegiance due while you are in a
particular place or country; local taxes, or those which are collected for
particular districts.
LOCAL ACTION, practice, pleadings. An action is local when the venue must be
laid in the county where the cause of action arose. 1 Chit. PI'. 271; 21
Vin. Ab. 79; 3 Bl. Com. 294; Bac. Ab. Actions, Local, &c.; Dane's Ab. Index,
h.t.; 15 Mass. 284; 1 Brock. 203; 1 Greenl. 246. Vide Action; Venue.
LOCALITY, Scotch law. This name is given to a life rent created in marriage
contracts in favor of the wife, instead of leaving her to her legal life
rent of terce. 1 Bell's Com. 55. See Jointure.
LOCATIO. Hire; a letting out.
LOCATIO CONDUCTIO, Civil law. Location conduction is a consensual contract,
by which a person becomes bound to deliver to another the use of a thing for
a certain time, or to do work at. a certain price. 1 Bouv. Inst. n. 984.
LOCATIO MERCIUM VEHENDARUM, contracts. A term used in the civil law to
signify the carriage of goods for hire.
2. In respect to contracts of this sort entered into by private
persons, not exercising the business of common carriers, there does not seem
to be any material distinction varying the rights, obligations and duties of
the parties from those of other bailees for hire. Every such private person
is bound to ordinary diligence, and a reasonable exercise of skill; and of
course he is not responsible for any losses not occasioned by ordinary
negligence unless he has expressly, by the terms of his contract, taken upon
himself such risk. 2 Ld. Raym. 909, 917, 918; 4 Taunt. 787; 6 Taunt. 577; 2
Marsh. 293,; Jones' Bailm. 103, 106, 121; 2 Bos. & Pull. 1l7; 1 Bouv. Inst.
n. 1020. See Common Carrier.
LOCATIO OPERIS, contracts. A term used in the civil law, to signify the
hiring of labor and services. It is a contract by which one of the parties
gives a certain work to be performed by the other, who binds himself to do
it for the price agreed between them, which he who gives the work to be done
promises to pay to the other for doing it. Poth. Louage, n. 392. This is
divided into two branches, first, Locatio operis faciendi; and, secondly,
Locatio mercium vehendarum. See these words.
LOCATIO OPERIS FACIENDI, contracts. A term used in the civil law. There are
two kinds, first, the location operis faciendi, strictly so called, or the
hire of labor and services; such as the hire of tailors to make clothes, and
of jewelers to set gems, and of watchmakers to repair watches. Jones' Bailm.
90, 96, 97. Secondly, Locatio custodiae, or the receiving of goods on
deposit for a reward, which is properly the hire of care and attention about
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the goods. Story on Bailm. 422, 442; 1 Bouv. Inst. n. 994.
2. In contracts for work, it is of the essence of the contract, first,
that there should be work to be done; secondly, for a price or reward; and,
thirdly, a lawful contract between parties capable and intending to
contract. Pothier, Louage, n. 395 to 403.
LOCATIO REI, contracts. A term used in the civil law, which signifies the
hiring of a thing. It is a contract by which one of the parties obligates
himself to, give to the other the use and enjoyment, of a certain thing for
a period of time agreed upon between them, and in consideration of a price
which the latter binds himself to pay in return. Poth. Contr. de Louage, n.
l. See Bailment; Hire; Hirer; Letter.
LOCATION, contracts. A contract by which the temporary use of a subject, or
the work or service of a person, is given for an ascertained hire. 1 Bell's
Com. B. 2, pt. 3, c. 2, s. 4, art. 2, Sec. 1, page 255. Vide Bailment; Hire.
LOCATION, estates. Among surveyors, who are authorized by public authority
to lay out lands by a particular warrant, the act of selecting the land
designated in the warrant and surveying it, is called its location. In
Pennsylvania, it is an application made by any person for land, in the
office of the secretary of the late land office of Pennsylvania, and entered
in the books of said office, numbered and sent to the surveyor general's
office. Act June 25, 1781, Sec. 2, 2 Sm. Laws, 7.
LOCATOR, civil law. He who leases or lets a thing to hire to another. His
duties are, 1st. To deliver to the hirer the thing hired, that he may use
it. 2d. To guaranty to the hirer the free enjoyment of it. 3d. To keep the
thing hired in good order in such manner that the hirer may enjoy it. 4th.
To warrant that the thing hired has not such defects as to destroy its use.
Poth. Du. Contr. de Louage, n. 53.
LOCK-UP HOUSE. A place used, temporarily as a prison.
LOCO PARENTIS. In the place of a parent.
2. It is frequently important in cases of devises and bequests, to
ascertain whether the testator did or did not stand towards the devisee or
legatee, in loco parentis. In general, those who assume the parental
character may be considered as standing in that relation but this character
must clearly appear.
3. The fact of his so standing may be shown by positive proof, or the
express declarations of the testator in his will, or by circumstances; as,
when a grandfather; 2 Atk. 518; a brother; 1 B. & Beat. 298; or an uncle; 2
A. 492; takes an orphan child under his care, or supports him, he assumes
the office of a parent. The law places a master in loco parentis in relation
to his apprentice. See 2 Ashm. R. 178, 207; 2 Bouv. Inst. n. 2216.
LOCUM TENENS. He who holds the place of another, a deputy; as A B, locum
tenens of C D, mayor of the city of Philadelphia.
LOCUS. The place where a thing is done.
LOCUS CONTRACTUS. The place of the contract. In general, the law of the
place where the contract is made, governs in everything which relates to the
mode of construing it. Vide Lex loci contractus.
LOCUS DELICTI. The place where the tort, offence, or injury has been
committed.
LOCUS POENITENTIAE. contracts, crim. law. Literally this signifies a place
of repentance; in law, it is the opportunity of withdrawing from a projected
contract, before the parties are finally bound; or of abandoning the
intention of committing a crime, before it has been completed, 2 Bro. C. R.
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569; Ersk. Laws of Scotl. 290. Vide article Attempt.
LOCUS IN QUO. The place in which. In pleadings it is the place where
anything is alleged to have been done. 1 Salk. 94.
LOCUS REI SITAE. The place where a thing is situated. In proceedings in rem,
in real actions in the civil law, or: those which have for their object the
recovery of a thing; and in real actions in the common law, or those for the
recovery of land, the proper forum is the locus rei sitae. 2 Gall. R. 191.
LOCUS SIGILLI. The place of the seal. 2. In many of the states, instead of
sealing deeds, writs, and other papers or documents requiring it, a scroll
is made in which the letters L. S. are printed or written, which is an
abbreviation of Locus Sigilli. This in some of the states has all the
efficacy of a seal, but in others it has no such effect. See Scroll.
LODGER. One who has a right to inhabit another man's house. He has not the
same right as a tenant; and is not entitled to the same notice to quit.
Woodf. L. &_T. 177. See 7 Mann. & Gr. 87; S. C. 49 E. C. L. R. 85, 151, and
article Inmate.
LODGINGS. Habitation in another's house, in which the owner dwells; the
occupier being termed a lodger.
LOG BOOK. A ship's journal. It contains a minute account of the ship's
course, with a short history of every occurrence during the voyage. 1 Marsh.
Ins. 408. When a log books required by law to be kept, it is an official
register so far as regards the transactions required by law to be entered in
it, but no further. Ab. Sh. by Story, 468, n. 1; 1 Sumn. R. 373 2
Summ. 19, 78; 4 Mason, R. 544; 1 Esp. R. 427.
LOQUELA, practice. An imparlance. Loquela sine die, a respite in law to an
indefinite time. Formerly by loquela was meant the allegations of fact
mutually made on either side, now denominated the pleadings. Steph. PI. 29.
LORD. In England, this is a title of honor. Fortunately in the U. S. no such
titles are allowed.
LORD'S DAY. The same as Sunday. (q.v.) Dies Dominicus non est juridicus.
Co. Litt. 135; Noy's Max. 2.
LOSS, contracts. The deprivation of something which one had, which was
either advantageous, agreeable or commodious.
2. In cases of partnership, the losses are in general borne by the
partners equally, unless stipulations or circumstance's manifest a different
intention. Story, Partn. Sec. 24. But it is not essential that the partners
should all share the losses. They may agree, that if there shall be no
profits, but a loss, that the loss shall be borne by one or more of the
partners exclusively, and that the others shall, inter se, be exempted from
all liabilities for losses. Colly. Partn. 11; Gow, Partn. 9; 3 M. & Wels.
357; 5 Barn. & Ald. 954 Story, Partn. Sec. 23.
3. When a thing sold is lost by an accident, as by fire, the loss falls
on the owner, res perit domino, and questions not unfrequently arise, as to
whether the thing has been delivered and passed to the purchaser, or whether
it remains still the property of the seller. See, on this subject, Delivery.
LOSS IN INSURANCE, contracts. A loss is the injury or damage sustained by
the insured in consequence of the happening of one or more of the accidents
or misfortunes against which the insurer, in consideration of the premium,
has undertaken to indemnify the insured. 1 Bouv. Inst. n. 1215.
2. These accidents or misfortunes, or perils, as they are usually
denominated, are all distinctly enumerated in the policy. And no loss,
however great or unforeseen, can be a loss with the policy, unless it be the
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direct and immediate consequence of one or more of these perils, Marsh. Ins.
B, 1, c. 12. As to the risks which are within the common policy, see Marsh.
Ins. c. 7, s. 2.
3. Every loss is either total or partial.
4. The term total loss is understood in two different senses; natural
and legal. In its natural sense it signifies the complete and absolute
destruction of the thing inured. In its legal sense, it means, not merely
the entire destruction or deprivation of the thing insured, but also such
damage to it, though it specifically remain, as renders it of little or no
value to the owner. A loss is also deemed total, if, by the happening of any
of the perils or misfortunes insured against, the voyage be lost, or be not
worth pursuing, and the projected adventure be frustrated; or if the value
of what he saved, be less than the freight. See Dougl. 231; 1 T. R. 608; Id.
187; Str. 1065; 13 East, R. 323; 2 M. & S 374 1 N. R. 236; 1 Wils. 191; 4 T.
R. 785 9 East, R. 283; 3 B. & P. 388; Marsh. Ins. B. 1, c. 12; 1 T. R. 187.
5. A partial loss, is any loss or damage short of, or not amounting to
a total loss, for if it be not the latter it must be the former. See 4 Mass.
374; 6 Mass. 102; Id, 122; Id. 317; 7 Mass. 349; 9 Mass. 20; 12 Mass. 170;
12 Mass. 288; 6 Mass. 479; 8 Mass. 494; 10 Johns. Rep. 487; 8 Johns. 237; 5
Binn. 595; 2 Serg. & Rawle, 553.
6. Partial losses are sometimes denominated average losses, because
they are often in the nature of those losses which are the subject of
average contributions; and they are distinguished into general and
particular averages. See tit. Average.
7. Losses are occasioned in a variety of ways but most usually by the
following: 1. By perils of the sea. See tit. Perils of the Sea. 2. By
collision, as where one ship drives against, or runs foul of another. Marsh.
Ins. B. 1, c. 12, s. 2. 3. By fire. Marsh. B. 1, c. 12, s. 3. 4. By capture.
See tit. Capture; Marsh. Ins. B. 1. c. 12, s. 4; 2 Caines' C. Err. 158; 7
Johns. R. 449; 13 Johns. R. 161; 14 Johns. R. 227; 3 Wheat. 183; 4 Cranch,
43; 6 Mass. 197. 5. By detention of princes. By the terms of the policy, the
insurer is liable for all loss occasioned by "arrest or detainments of all
kings, princes, and people, of what nation, condition, or quality soever."
Under these words, the insurers are liable for all losses occasioned by
arrests or detention of the ship, or goods insured, by the authority of any
prince or public body claiming to exercise sovereign power, under what
pretence soever. Marsh. Ins. B. 1, c. 12, s. 5. See Embargo; People. 6. By
Barratry. Marsh. Ills. B. 1, c. 12, s. 6. See tit. Barratry; 2 Caines' R.
67; Id. 222; 3 Caines' Rep. 1; 1 Johns. R. 229; 8 Johns. R. 209, 2d edit.; 5
Day, 1; 11 Johns. Rep. 40; 13 Johns. Rep. 451; 2 Binn. 574; 2 Dall. 137; 8
Cranch, 39; 3 Wheat. 168. 7. By average by contribution. See Marsh. Ins. B.
1, c. 12, s. 7; this Dict. tit. Average. 8., By salvage. See tit. Salvage;
Marsh. Ins. B. 1, c. 12, s. 8. 9. By the death of animals. If animals, such
as horses, cattle, or beasts or birds of curiosity, be insured in their
passage by sea, their death, occasioned by tempests, by the shot of an
enemy, by jettison in a storm, or by any other extraordinary accident,
occasioned by the perils enumerated in the policy, is a loss for which the
underwriters are liable. Not so, if it be occasioned by mere disease or
natural death. Marsh. Ins. B. 1, c. 12, s. 10. 10. By fraud. Marsh. Ins. B.
1, c. 12, s. 11. See, generally, Com. Dig. Merchant, E 9, n; Bac. Abr.
Merchant, 1. 5
LOST. What was once possessed and cannot now be found.
2. When a bond or other deed was lost, formerly the obligee or
plaintiff was compelled to go into equity to seek relief, because there was
no remedy a law, the plaintiff being required to make profert in his
declaration. 1 Chan. c. 7T. But in process of time courts of law dispensed
with profert in such cases, and thereby obtained concurrent jurisdiction
with the courts of chancery, so that now the loss of any paper, other than a
negotiable note, will not prevent the plaintiff from recovering at law as
well as in equity. 3 Atk. 214; 1 Ves. 341; 5 Ves. 235; 6 Ves. 812, 7 Ves.
19; 3 V. & B. 54.
3. When a negotiable note has been lost, equity will grant relief. In
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such case the claimant must tender an indemnity to the debtor, and file a
bill in chancery to compel payment. 7 B. & C. 90; Ryan & Mo. 90; 4 Taunt.
602; 2 Ves. sen. 327; 16 Ves. 430.
LOST PAPERS. When a paper containing an agreement between parties, a will,
and the like, has been so mislaid, that after a diligent search it cannot be
found, it is said to be lost.
2. When such a document has been lost, and it is required to prove its
contents, the party must prove that he has made diligent search, and, in
good faith, exhausted all sources of information accessible to him. For this
purpose his own affidavit is sufficient. 1 Atk. 446; 1 Greenl. Ev. Sec. 349.
On being satisfied of this, the court will allow secondary evidence to be
given of its contents. See Evidence.
3. Even a will proved to be lost, may be admitted to probate, upon
secondary evidence. 1 Greenl. Ev. Sec. 84, 509, 575; 2 Greenl. Ev. Sec. 668,
a, 2d ed. But the fact of the loss must be proved by the clearest evidence,
because it may have been destroyed by the testator animo revocandi. 8 Mete.
487; 2 Addams, 223; 6 Wend. 173; 1 Hagg. Eccl. R. 115; 3 Pick. 67; 5 B.
Munroe, 58; 2 Curt. 913.
LOST OR NOT LOST. These words are sometimes inserted in policies of marine
insurance. They are used when the underwriter undertakes that if the ship or
goods should be lost at the time of the insurance, still the underwriter is
liable, provided there is no fraud. Moll. B. 2, c. 7, s. 5; Hildy. on Mar.
Ins. 10.
LOT. Anything on which depends the accidental determination of a right by
which we acquire or lose something; or it is that which fortuitously
determines what we are to acquire. When it can be certainly known what are
our rights, we ought never to resort to a decision by lot; but when it is
impossible to tell what actually belong to us, as if an estate is divided
into three parts and one part given to each of three persons, the proper way
to ascertain each one's part is to draw lots. Wolff, Dr. &c., de la Nat.
Sec. 669.
LOT OF GROUND. A small piece of land in a town or city usually employed for
building, a yard, a garden or such other urban use. Lots are in-lots, or
those within the boundary of the city or town, and out-lots, those which are
out of such boundary, and which are used by some of the inhabitants of such
town or city.
LOTTERY. A scheme for the distribution of prizes by chance.
2. In most, if not all of the United States, lotteries not specially
authorized by the legislatures of the respective states are prohibited, and
the persons concerned in establishing them are subjected to a heavy penalty.
This is the case in Alabama, Connecticut Delaware, Georgia, Kentucky,
Maryland, Massachusetts, Mississippi, New York, Ohio, Pennsylvania, Rhode
Island, Tennessee, Vermont and Virginia. In Louisiana, a license is granted
to sell tickets in a lottery not authorized by the legislature of that
state, on the payment of $5000, and the license extends only to one lottery.
In many of the states, the lotteries authorized by other states, are
absolutely prohibited Encycl. Amer. h.t.
LOUISIANA. The name of one of the new states of the United States of
America. This state was admitted into the Union by the act of congress,
entitled "An act for the admission of the state of Louisiana into the Union,
and to extend the laws of the United States to the said state," approved
April 8, 1812, 2 Story's L. U. S. 1224; the preamble of which recites and
the first section enacts as follows, namely:
2. Whereas the representatives of the people of all that part of the
territory or country ceded, under the name of "Louisiana," by the treaty
made at Paris, on the thirtieth day of April, one thousand eight hundred and
three, between the United States and France, contained within the following
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limits; that is to say: beginning at the mouth of the river Sabine; thence,
by a line to be drawn along the middle of said river, including all islands
to the thirty-second degree of latitude; thence, due north, to the
northernmost part of the thirty-third degree of north latitude, thence,
along the said parallel of latitude, to the river Mississippi; thence, down
the said river, to the river Iberville; and from thence, along the middle of
the said river, and lakes Maurepas and Ponchartrain, to the gulf of Mexico;
thence, bounded by the said gulf, to the place of beginning; including all
islands within three leagues of the coast; did, on the twenty-second day of
January, one thousand eight hundred and twelve, form for themselves a
constitution and state government, and give to the said state the name of
the state of Louisiana, in pursuance of an act of congress, entitled "An act
to enable the people of the territory of Orleans to form a constitution and
state government, and for the admission of the said state into the Union, on
an equal footing with the original states, and for other purposes: And the
said constitution having been transmitted to congress, and by them being
hereby approved; therefore,
3.-1. Be it enacted, &c. That the said state shall be one, and is
hereby declared to be one of the United States of America and admitted into
the Union on an equal footing with the original states, in all respects
whatever, by the name and title of the state of Louisiana: Provided, That it
shall be taken as a condition upon which the said state is incorporated in
the Union, that the river Mississippi, and the navigable rivers and waters
leading into the same, and into the Gulf of Mexico, shall be common
highways, and forever free, as well to the inhabitants of the said state as
to the inhabitants of other states, and the territories of the United
States, without any tax, duty, impost, or toll, therefor, imposed by the
said state; and that the above condition, and also all other the conditions
and terms contained in the third section of the act, the title whereof is
hereinbefore recited, shall be considered, deemed, and taken, fundamental
conditions and terms, upon which the said state is incorporated in the
Union. See 11 M. R. 309.
4. By the present constitution of the state of Louisiana, which was
adopted in 1845; the powers of the government of the state of Louisiana, are
divided into three distinct departments, each of them confined to a separate
body of magistracy, to wit: The legislative to one, the executive to
another, and the judicial to a third. Title I.
5.-1st. The legislative power is vested in a general assembly, which
consists of a senate and house of representatives.
6.-1. The senate will be considered with reference to the
qualification of the electors; the qualification of the members the length
of time for which they are elected and the time of their election. 1. In all
elections by the people, every free white male, who has been two years a
citizen of the United States, who has attained the age of twenty-one years,
and resided in the state two consecutive years next preceding the election,
and the last year thereof in the parish in which he offers to vote, shall
have the right of voting: Provided, That no person shall be deprived of the
right of voting, who, at the time of the adoption of this constitution, was
entitled to that right under the constitution of 1812. Absence from the
state for more than ninety consecutive days, shall interrupt the acquisition
of the residence required in the preceding section, unless the person
absenting himself shall be a housekeeper, or shall occupy a tenement for
carrying on business, and his dwelling house or tenements for carrying on
business, be actually occupied during his absence, by his family or
servants, or some portion thereof, or by some one employed by him. No
soldier, seaman, or marine in the army or navy of the United States, no
pauper, no person under interdiction, nor under conviction of any crime
punishable by hard labor, shall be entitled to vote at any election in this
state. 2. No person shall be a senator, who, at the time of his election,
has not been a citizen of the United States ten years, and who has not
attained the age of twenty-seven years and resided in the state four years
next preceding his election, and the last year thereof, in the district in
which he may be chosen. The number of senators shall be thirty-two. 3. The
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members of the senate shall be chosen for the term of four years. 4. Their
election takes place on the first Monday in November, every two years, so
that one half of their number are elected every two years, and a perpetual
rotation thereby kept up.
7.-2. The house of representatives will be treated of in the same
manner as that of the senate. 1. The electors are qualified in the same
manner as those of the senate. 2. No person shall be a representative, who,
at the time of his election, is not a free white male, and has not been for
three years a citizen of the United States, and has not attained the age of
twenty-one years, and resided in the state for three years next preceding
the election, and the last year thereof in the parish for which he may be
chosen. The number of representatives shall not be more than one hundred,
nor less than seventy. 3. They are chosen every two years. 4. Their election
is on the first Monday in November, every two years. Title II.
8.-2d. The supreme executive power of the state shall be vested in a
chief magistrate, who shall be styled the governor of the state of
Louisiana. He is elected by the qualified electors at the time and place of
voting for representatives; the person having the greatest number of votes,
shall be declared elected. But if two or more persons shall be equal in the
highest number of votes polled, one of them shall immediately be chosen
governor by the joint vote of the members of the general assembly. 2. No
person shall be eligible to the office of governor, who shall not have
attained the age of thirty-five years, been fifteen years a citizen of the
United States, and a resident within the state for the same space of time
next preceding his election. 3. He shall hold his office during the term of
four years, but shall be ineligible for the succeeding four years after its
termination. 4. His principal functions are as follows: He shall be
commander-in-chief of the army and navy of this state, and of the militia
thereof, except when they shall be called into the service of the United
States. He shall take care that the laws be faithfully executed. From time
to time give to the general assembly information respecting the situation of
the state, and recommend to their consideration such measures as he may deem
expedient. Shall have power to grant reprieves for all offences against the
state. With the consent of the senate, have power to grant pardons and remit
fines and forfeitures, after conviction, except in cases of impeachment. In
cases of treason, may grant reprieves until the end of the next session of
the general assembly, in which the pardoning power shall be vested. Shall
nominate, and by and with the advice and consent of the senate, appoint all
officers established by this constitution, whose mode of appointment is not
otherwise prescribed by the constitution, nor by the legislature. Have power
to fill vacancies during the recess of the senate, provided he appoint no
one whom the senate have rejected for the same office. May, on extraordinary
occasions convene the general assembly at the seat of government, or at a
different place, if that should have become dangerous from an enemy or from
an epidemic; and in case of disagreement between the two houses as to the
time of adjournment, he may adjourn them to such time as he may think
proper, not exceeding four months. He shall have the veto power. Title III.
9.-3d. The judicial power is vested by title IV of the constitution,
as follows:
10.-1. The judicial power shall be vested in a supreme court, in
district courts, and injustices of the peace.
11.-2. The supreme court, except in cases hereinafter provided, shall
have appellate jurisdiction only, which jurisdiction shall extend to all
cases when the matter in dispute shall exceed three hundred dollars, and to
all cases in which the constitutionality or legality of any tax, toll, or
impost of any kind or nature soever, shall be in contestation, whatever may
be the amount thereof; and likewise to all fines, forfeitures, and penalties
imposed by municipal corporations, and in criminal cases on questions of law
alone, whenever the punishment of death or hard labor may be inflicted, or
when a fine exceeding three hundred dollars is actually imposed.
12.-3. The supreme court shall be composed of one chief justice, and
of three associate justices, a majority of whom shall constitute a quorum.
The chief justice shall receive a salary of six thousand dollars, and each
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of the associate judges a salary of five thousand five hundred dollars
annually. The court shall appoint its own clerks. The judges shall be
appointed for the term of eight years.
13.-4. When the first appointments are made under this constitution,
the chief justice shall be appointed for eight years, one of the associate
judges for six years, one for four years, and one for two years and in the
event of the death, resignation, or removal of any of said judges before the
expiration of the period for which he was appointed, his successor shall be
appointed only for the remainder of his term; so that the term of service of
no two of said judges shall expire at the same time.
14.-5. The supreme court shall hold its sessions in New Orleans, from
the first Monday of the month of November, to the end of the month of June,
inclusive. The legislature shall have power to fix the sessions elsewhere
during the rest of the year; until otherwise provided, the sessions shall be
held as heretofore.
15.-6. The supreme court, and each of the judges thereof, shall have
power to issue writs of habeas corpus, at the instance of all persons in
actual custody under process, in all cases in which they may have appellate
jurisdiction.
16.-7. In all cases in which the judges shall be equally divided in
opinion, the judgment appealed from shall stand affirmed; in which case each
of the judges shall give his separate opinions in writing.
17.-8. All judges, by virtue of their office, shall be conservators of
the peace throughout the state. The style of all processes shall be, "The
State of Louisiana." All prosecutions, shall be carried on in the name and
by the authority of the state of Louisiana, and conclude, against the peace
and dignity of the same.
18.-9. The judges of all the courts within this state shall, as often
as it may be possible so to do, in every definite judgment, refer to the
particular law in virtue of which such judgment may be rendered, and in all
cases adduce the reasons on which their judgment is founded.
19.-10. No court or judge shall make any allowance by way of fee or
compensation in any suit or proceedings, except for the payment of such fees
to ministerial officers as may be established by law.
20.-11. No duties or functions shall ever be attached by law to the
supreme or district courts, or to the several judges thereof, but such as
are judicial; and the said judges are prohibited from receiving any fees of
office or other compensation than their salaries for any civil duties
performed by them.
21.-12. The judges of all courts shall be liable to impeachment; but
for any reasonable cause, which shall not be sufficient ground for
impeachment, the governor shall remove any of them on the address of three-
fourths of the members present of each house of the general assembly. In
every such case the cause or causes for which such removal may be required,
shall be stated at length in the address, and inserted in the journal of
each house.
22.-13. The first legislature assembled under this constitution shall
divide the state into judicial districts, which shall remain unchanged for
six years, and be subject to reorganization every sixth year thereafter. The
number of districts shall not be less than twelve, nor more than twenty. For
each district one judge, learned in the law, shall be appointed, except in
the districts in which the cities of New Orleans and Lafayette are situated,
in which the legislature may establish as many district courts as the public
interest may require.
23.-14. Each of the said judges shall receive a salary to be fixed by
law, which shall not be increased or diminished during his term of office,
and shall never be less than two thousand five hundred dollars annually. He
must be a citizen of the United States, over the age of thirty years, and
have resided in the state for six years next preceding his appointment, and
have practised law therein for the space of five years.
24.-15. The judges of the district courts shall hold their offices for
the term of six years. The judges first appointed shall be divided by lot
into three classes, as nearly equal as can be, and the term of office of the
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judges of the first class shall expire at the end of two years, of the
second class at the end of four years, and of the third class at the end of
six years.
25.-16. The district courts shall have original jurisdiction in all
civil cases when the amount in dispute exceeds fifty dollars, exclusive of
interest. In all criminal cases, and in all matters connected with
successions, their jurisdiction shall be unlimited.
26.-17. The jurisdiction of justices of the peace shall never exceed,
in civil cases, the sum of one hundred dollars, exclusive of interest,
subject to appeal to the district court in such cases as shall be provided
for by law. They shall be elected by the qualified voters of each parish for
the term of two years, and shall have such criminal jurisdiction as shall be
provided for by law.
LOW WATER MARK. That part of the shore of the sea to which the waters recede
when the tide is the lowest. Vide High Water Mark; River; Sea Shore; Dane's
Ab. h.t.; 1 Halst. R. 1.
LOYAL. Legal; according to law; as, loyal matrimony, a lawful marriage;
attached to the existing law.
LOYALTY. That which adheres to the law, that which sustains an existing
government. See Penal Laws of China, 3.
LUCID INTERVAL, med. jur. That space of time between two fits of insanity,
during which a person non compos mentis is completely restored to the
perfect enjoyment of reason upon every subject upon which the mind was
previously cognizant. Shelf. on Lun. 70; Male's Elem. of Forensic Medicine,
227; and see Dr. Haslam on Madness, 46; Reid's Essays on Hypochondriasis,
317 Willis on Mental Derangement, 151.
2. To ascertain whether a partial restoration to sanity is a lucid
interval, we must consider the nature of the interval and its duration. 1st.
Of its nature.: "It must not," says D'Aguesseau, "be a superficial
tranquillity, a shadow of repose, but on the contrary, a profound
tranquillity, a real repose; it must not be a mere ray of reason, which only
makes its absence more apparent when it is gone, not a flash of lightning,
which pierces through the darkness only to render it more gloomy and dismal,
not a glimmering which unites night to the day; but a perfect light, a
lively and continued lustre, a full and entire day, interposed between two
separate nights of the fury which precedes and follows it; and to use
another image, it is not a deceitful and faithless stillness, which follows
or forebodes a storm, but a sure and steady tranquillity for a time, a real
calm, a perfect serenity; without looking for so many metaphors to represent
an idea, it must not be a mere diminution, a remission of the complaint, but
a kind of temporary cure, an intermission so clearly marked, as in every
respect to resemble the restoration of health." 2d, Of its duration. "As it
is impossible," he continues, "to judge in a moment of the qualities of an
interval, it is requisite that there should be a sufficient length of time
for giving a perfect assurance of the temporary reestablishment of reason,
which it is not possible to define in general, and which depends upon the
different kinds of fury, but it is certain there must be a time, and a
considerable time." 2 Evan's Poth. on Oblig. 668, 669.
3. It is the duty of the party who contends for a lucid interval to
prove it; for a person once insane is presumed so, until it is shown that he
has a lucid interval or has recovered. Swinb. 77; Co. Litt. by Butler, n.
185; 3 Bro. C. C. 443; 1 Rep. Con. Ct. 225; 1 Pet. R. 163; 1 Litt. R. 102.
Except perhaps the alleged insanity was very long ago, or for a very short
continuance. And the wisdom of a testament, when it is proved that the party
framed it without assistance, is a strong presumption of the sanity of a
testator. 1 Phill. R. 90;1 Hen. & Munf. 476.
4. Medical men have doubted of the existence of a lucid interval, in
which the mind was completely restored to its sane state. It is only an
abatement of the symptoms, they say, and not a removal of the cause of the
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disease; a degree of irritability of the brain remains behind which renders
the patient unable to withstand any unusual emotion, any sudden provocation,
or any unexpected pressing emergency. Dr. Combe, Observations on Mental
Derangement, 241; Halsam, Med. Jur. of Insanity, 224; Fodere, De Medecine
Legale, tom, 1, p. 205, 140; Georget, Des Maladies Mentales, 46; 2 Phillim.
R. 90; 2 Hagg. Eccl. R. 433; 1 Phillim. Eccl. R. 84.
See further, Godolph. 25; 3 Bro. C. C. 443; 11 Ves. 11; Com. Dig.
Testimoigne, A 1; 1 Phil. Ev. 8; 2 Hale, 278; 10 Harg. State Tr. 478;
Erskine's Speeches, vol. 5, p. l; 1 Fodere, Med. Leg. Sec. 205.
LUCRE. Gain, profit. Cl. des Lois Rom. h.t.
LUCRI CAUSA. This is a Latin expression, which signifies that the thing to
which it applies is done for the sake of gain.
2. It was supposed that when a larceny was committed the taking should
have been lucri causa; but it has been considered that it is not necessary
the taking should be lucri causa, if it be fraudulenter, with intent to
wholly deprive the owner of the property. Russ. & Ry. 292; 2 RUSS.' on Cr.
92. 1 Car. & K. 532. Vide Inst. lib. 4, t. 1, s. 1.
LUGGAGE. Such things as are carried by a traveller, generally for his
personal accommodation; baggage. In England this word is generally used in
the same sense that baggage is used in the United States. See Baggage.
LUNACY, med. jur. A disease of the mind, which is differently defined as it
applies to a class of disorders, or only to one species of them. As a
general term it includes all the varieties of mental, disorders, not
fatuous.
2. Lunacy is adopted as a general term, on account of its general use
as such in various legislative acts and legal proceedings, as commissions of
lunacy, and in this sense it seems to be synonymous with non compos mentis,
or of unsound mind.
3. In a more restricted sense, lunacy is the state of one who has bad
understanding, but by disease, grief, or other accident, has lost the use of
reason. 1 Bl. Com. 304.
4. The following extract from a late work, Stock on the Law of Non
Compotes Mentis, will show the difficulties of discovering what is and what
is not lunacy. "If it be difficult to find an appropriate definition or
comprehensive name for the various species of lunacy," says this author,
page 9, "it is quite as difficult to find anything approximating to a
positive evidence of its presence. There are not in lunacy, as in fatuity,
external signs not to be mistaken, neither is there that similarity of
manner and conduct which enables any one, who has observed instances of
idiocy or imbecility, to detect their presence in all subsequent cases, by
the feebleness of perception and dullness of sensibility common to them all.
The varieties of lunacy are as numerous as the varieties of human nature,
its excesses commensurate with the force of human passion, its phantasies
coextensive with the range of human intellect. It may exhibit every mood
from the most serious to the most gay, and take every tone from the most
sublime to the most ridiculous. It may confine itself to any trifling
feeling or opinion, or overcast the whole moral and mental conformation. It
may surround its victim with unreal persons and events, or merely cause him
to regard real persons and events with an irrational favor or dislike,
admiration or contempt. It may find satisfaction in the most innocent folly,
or draw delight from the most atrocious crime. It may lurk so deeply as to
elude the keenest search, or obtrude so openly as to attract the most
careless notice. It may be the fancy of an hour, or the distraction of a
whole life. Such being the fact, it is not surprising that many scientific
and philosophical men have vainly exhausted their observation and ingenuity
to find out some special quality, some peculiar mark or characteristic
common to all cases of lunacy, which might serve at least as a guide in
deciding on its absence or presence in individual instances. Being hopeless
of a definition, they would willingly have contented themselves with a test,
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but even this the obscurity and difficulty of the subject seem to forbid.
5. Lord Erskine, who, in his practice at the bar, had his attention
drawn this way, from being engaged in some of the most remarkable trials of
his time involving questions of lunacy, has given as his test, "a delusive
image, the inseparable companion of real insanity," (Ersk. Misc. Speeches)
and Dr. Haslam, whose opportunities of observation have surpassed most other
persons, has proposed nearly the same, by saying that "false belief is the
essence of insanity." (Haslam on Insanity.) Sir John Nicholl, in his
admirable judgment in the case of Dew v. Clark, thus expresses himself: "The
true criterion is, where there is delusion of mind there is insanity; that
is, when persons believe things to exist, which exist only, or at least, in
that degree exist only in their own imagination, and of the non-existence of
which neither argument nor proof can convince them; they are of unsound mind;
or as one of the counsel accurately expressed it, it is only the belief of
facts, which no rational person could have believed, that is insane
delusion." (Report by Haggard, p. 7.) Useful as these several remarks are,
they are not absolutely true. It is indeed beyond all question that the
great majority of lunatics indulge in some "delusive image," entertain some
"false belief." They assume the existence of things or persons which do not
exist, and so yield to a delusive image, or they come to wrong conclusions
about persons and things which do exist, and so fall into a false belief.
But there is a class of cases where lunacy is the result of exclusive
indulgence in particular trains of thought or feeling, where these tests are
sometimes wholly wanting, and yet where the entire absorption of the
faculties in one predominant idea, the devotion of all the bodily and mental
powers to one useless or injurious purpose, prove that the mind has lost its
equilibrium. With some passions, indeed, such as self-esteem and fear, what
was at first an engrossing sentiment, will often go on to a positive
delusion; the self-adoring egotist grows to fancy himself a sovereign or a
deity; the timid valetudinarian becomes the prey of imaginary diseases, the
victim of unreal persecutions. But with many other passions, such as desire,
avarice or revenge, the neglect and forgetfulness of all things save one,
the insensibility to all restraints of reason, morality, or prudence, often
proceed to such an extent as to justify holding an individual as a lunatic,
incapable of all self-restraint, although, strictly speaking, not possessed
by any delusive image or false belief. Much less do these tests apply to
many cases of irresistible propensity to acts wholly irrational, such as to
murder or to steal without the smallest assignable motive, which, rare as
they are, certainly occur from time to time, and cannot but be held as an
example of at least partial and temporary lunacy. It is to cases where no
false belief or image can be detected, that the remark of Lord Erskine is
more particularly applicable; "they frequently mock the wisdom of the wisest
in judicial trials," (Ersk. Misc. Speeches,) and were not the paramount
object of all legal punishment the benefit of the community, which makes it
inexpedient to spare offenders against the law, if insanity be the ground of
their defence, except upon the clearest proof, lest skillful dissemblers
should thereby be led to hope for impunity, very subtle questions might no
doubt be raised as to the degree of moral responsibility and mental sanity
attaching to the perpetrators of many atrocious acts, seeing that they often
commit them tinder temptations quite inadequate to allure men of common
prudence, or under passions so violent as to suspend altogether the
operations of reason or free will. For as it is impossible to obtain an
accurate definition of lunacy, so it is manifestly so, to draw the line
correctly between it and its opposite rationality, or, to borrow the words
of Chief Justice Hale, (1 Hale's P. C. p. 30,) "Doubtless most persons that
are felons, of themselves and others, are under a degree of partial insanity
when they commit those offences. It is very difficult to define the
indivisible line that divides perfect and partial, insanity; but it must
rest on circumstances duly to be weighed and considered both by the judge
and jury, lest on one side there be a kind of inhumanity towards the defects
of human nature, or on the other side too great an indulgence given to great
crimes."
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LUNAR. That which belongs to the moon; relating to the moon as a lunar
month. See Month.
LUNATIC, persons. One who has had an understanding, but who, by disease,
grief, or other accident, has lost the use of his reason. A lunatic is
properly one who has had lucid intervals, sometimes enjoying his senses, and
sometimes not. 4 Co. 123; 1 Bl. Com. 304; Bac. Abr. Idiots, &c., A; 1 Russ.
on Crimes, 8; Shelf. on Lun. 4; Merlin, mot Demence; Fonb. Eq. Index, h.t.;
15 Vin. Ab. 131; 8 Com. Dig. 721; 1 Supp. to Ves. jr. 94, 130, 369, 404;
2 Supp. to Ves. jr. 51, 106, 151, 360; 1 Vern. 9, 137, 262; Louis. Code,
tit. 9, c. 1; and articles Lucid Interval; Lunacy.
LYING IN GRANT. Incorporeal rights and things which cannot be transferred by
livery of possession, but which exist only in idea, in contemplation of law,
are said to lie in grant, and pass by the mere delivery of the deed. Vide
Grant; Livery of Seisin; Seisin.
LYING IN WAIT. Being in ambush for the purpose of murdering another.
2. Lying in wait is evidence of deliberation and intention.
3. Where murder is divided into degrees, as in Pennsylvania, lying in
wait is such evidence of malice, that it makes the killing, when it takes
place, murder in the first degree. Vide. Dane's Ab. Index, h.t.
LYNCH-LAW. A common phrase used to express the vengeance of a mob,
inflicting an injury, and committing an outrage upon a person suspected of
some offence. In England this is called Lidford Law. Toml.L. Dict. art.
M.
M. When persons were convicted of manslaughter in England, they were
formerly marked with this letter on the brawn of the thumb.
2. This letter is sometimes put on the face of treasury notes of the
United States, and signifies that the treasury note bears interest at the
rate of one mill per centum, and not one per centum interest. 13 Peters,
176.
MACE-BEARER, Eng. law. An officer attending the court of session.
MACEDONIAN DECREE, civil law. A decree of the Roman senate, which derived
its name from that of a certain usurer who was the cause of its being made,
in consequence of his exactions. It was intended to protect sons who lived
under the paternal jurisdiction, from the unconscionable contracts which
they sometimes made on the expectations after their fathers' deaths;
another, and perhaps, the principle object, was to cast odium on the
rapacious creditors. It declared such contracts void. Dig. 14, 6, 1; Domat,
Lois, Civ. liv. 1, tit. 6, Sec. 4; Fonb. Eq. B. 1, c. 2, Sec. 12, note.
Vide Catching bargain; Post obit.
MACHINATION. The act by which some plot or conspiracy is set on foot.
MACHINE. A contrivance which serves to apply or regulate moving power; or it
is a tool more or less complicated, which is used to render useful natural
instruments, Clef. des Lois Rom. h.t.
2. The act of congress gives to inventors the right to obtain a patent
right for any new and useful improvement on any art, machine, manufacture,
&c. Act of congress, July 4, 1836, s. 6. See Pet. C. C. 394; 3 Wash. C. C.
443; 1 Wash. C. C. 108; 1 Wash. C. C. 168; 1 Mason, 447; Paine, 300; 4 Wash.
C. C. 538; 1 How. U. S., 202; S. C. 17 Pet. 228; 2 McLean, 176.
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MADE KNOWN. These words are used as a return to a scire facias, when it has
been served on the defendant.
MAGISTER. A master, a ruler, one whose learning and position makes him
superior to others, thus: one who has attained to a high degree, or
eminence, in science and literature, is called a master; as, master of arts.
MAGISTER AD FACULTATES, Eng. eccl. law. The title of an officer who grants
dispensations; as, to marry, to eat flesh on days prohibited, and the like.
Bac. Ab. Eccl. Courts, A 5.
MAGISTRACY, mun. law. In its most enlarged signification, this term includes
all officers, legislative, executive, and judicial. For example, in most of
the state constitutions will be found this provision; "the powers of the
government are divided into three distinct departments, and each of these is
confided to a separate magistracy, to wit: those which are legislative, to
one; those which are executive, to another; and those which are judiciary,
to another." In a more confined sense, it signifies the body of officers
whose duty it is to put the laws in force; as, judges, justices of the
peace, and the like. In a still narrower sense it is employed to designate
the body of justices of peace. It is also used for the office of a
magistrate.
MAGISTRATE, mun. law. A public civil officer, invested with some part of the
legislative, executive, or judicial power given by the constitution. In a
narrower sense this term includes only inferior judicial officers, as
justices of the peace.
2. The president of the United States is the chief magistrate of this
nation; the governors are the chief magistrates of their respective states.
3. It is the duty of all magistrates to exercise the power, vested in
them for the good of the people, according to law, and with zeal and
fidelity. A neglect on the part of a magistrate to exercise the functions of
his office, when required by law, is a misdemeanor. Vide 15 Vin. Ab. 144;
Ayl. Pand. tit. 22; Dig. 30, 16, 57; Merl. Rep. h.t.; 13 Pick. R. 523.
MAGNA CHARTA. The great charter. The name of an instrument granted by King
John, June 19, 1215, which secured to the English people many liberties
which had before been invaded, and provided against many abuses which before
rendered liberty a mere name.
2. It is divided into thirty-eight chapters,: 1. To the which relate as
follows, namely: freedom of the church and ecclesiastical persons. 2. To the
nobility, knights' service, &c. 3. Heirs and their being in ward. 4.
Guardians for heirs within age, who are to commit no waste. 5. To the land
and other property of heirs, and the delivery of them up when the heirs are
of age. 6. The marriage of heirs. 7. Dower of women in the lands of their
husbands. 8. Sheriffs and their bailiffs. 9. To the ancient liberties of
London and other cities. 10. To distress for rent. 11. The court of common
pleas, which is to be located. 12. The assize on disseisin of lands. 13.
Assizes of darein presentments, brought by ecclesiastics. 14. The amercement
of a freeman for a fault. 15. The making of bridges by towns. 16. Provisions
for repairing sea banks and sewers. 17. Forbids sheriffs and coroners to
hold pleas of the crown. 18. Prefers the king's debt when the debtor dies
insolvent. 19. To the purveyance of the king's house. 20. To the
castleguard. 21. To the manner of taking property for public use. 22. To the
lands of felons, which the king is to have for a year and a day, and
afterwards the lord of the fee. 23. To weirs which are to be put down in
rivers. 24. To the writ of praecipe in capite for lords against tenants
offering wrong, &c. 25. To measures. 26. To inquisitions of life and member,
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which are to be granted freely. 27. To knights' service and other ancient
tenures. 28. To accusations, which must be under oath. 29. To the freedom of
the subject. No freeman shall be disseised of his freehold, imprisoned and
condemned, but by judgment of his peers, or by the law of the land. 30. To
merchant strangers, who are to be civilly treated. 31. To escheats. 32. To
the power of selling land by a freeman, which is limited. 33. To patrons of
abbeys, &c. 34. To the right of a woman to appeal for the death of her
husband. 35. To the time of holding courts. 36. To mortmain. 37. To escuage
and subsidy. 88. Confirms every article of the charter. See a copy of Magna
Charta in 1 Laws of South Carolina; edited by Judge Cooper, p. 78. In the
Penny Magazine for the year 1833, page 229, there is a copy of the original
seal of King John, affixed to this instrument, and a specimen of a facsimile
of the writing of Magna Charta, beginning at the passage, Nullus liber homo
capietur vel imprisonetur, &c. A copy of both may be found in the Magazin
Pittoresque, for the year 1834, p. 52, 53. Vide 4 Bl. Com. 423.
MAIDEN. The name of an instrument formerly used in Scotland for beheading
criminals.
MAIL. This word, derived from the French malle, a trunk, signifies the bag,
valise, or other contrivance used in conveying through the post office,
letters, packets, newspapers, pamphlets, and the like, from place to place,
under the authority of the United States. The things thus carried are also
called the mail.
2. The laws of the United States have provided for the punishment of
robberies or willful injuries to the mail; the act of March 3, 1825, 3
Story's Laws U. S. 1985, provides:
Sec. 22. That if any person shall rob any carrier of the mail of the
United States, or other person entrusted, therewith, of such mail, or of
part thereof, such offender or offenders shall, on conviction, be imprisoned
not less than five years, nor exceeding ten years; and, if convicted a
second time of a like offence, he or they shall suffer death; or if, in
effecting such robbery of the mail, the first time, the offender shall wound
the person having the custody thereof, or put his life in jeopardy, by the
use of dangerous weapons, such offender or offenders shall suffer death. And
if any person shall attempt to rob the mail of the United States, by
assaulting the person having custody thereof, shooting at him, or his horse
or mule, or, threatening him with dangerous weapons, and the robbery is not
effected, every such offender, on conviction thereof, shall be punished by
imprisonment, not less than two years, nor exceeding ten years. And, if any
person shall steal the mail, or shall steal or take from, or out of, any
mail, or from, or out of, any post office, any letter or packet; or, if any
person shall take the mail, or any letter or packet therefrom, or from any
post office, whether with or without the consent of the person having
custody thereof, and shall open, embezzle, or destroy any such; mail,
letter, or packet, the same containing any articles of value, or evidence of
any debt, due, demand, right, or claim, or any release, receipt,
acquittance, or discharge, or any other articles, paper, or thing, mentioned
and described in the twenty-first section of this act; or, if any person
shall, by fraud or deception, obtain from any person having custody thereof,
any mail, letter, or packet, containing any article of value, or evidence
thereof, or either of the writings referred to, or next above mentioned,
such offender, or offenders, on conviction thereof, shall be imprisoned not
less than two, nor exceeding ten years. And if any person shall take any
letter, or packet, not containing any article of value, or. evidence
thereof, out of a post office, or shall open any letter or packet, which
shall have been in a post office, or in custody of a mail carrier, before it
shall have been delivered to the person to whom it is directed, with a
design to obstruct the correspondence, to pry into another's business or
secrets; or shall secrete, embezzle, or destroy, any such mall, letter, or
packet, such offender, upon conviction, shall pay, for every such offence, a
sum not exceeding five hundred dollars, and be imprisoned not exceeding
twelve months.
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3.-Sec. 23. That, if any person shall rip, cut, tear, burn, or
otherwise injure, any valise, portmanteau, or other bag used, or designed to
be used, by any person acting under the authority of the postmaster general,
or any person in whom his powers are vested in a conveyance of any mail,
letter packet, or newspaper, or pamphlet, or shall draw or break any staple,
or loosen any part of any lock, chain, or strap, attached to, or belonging
to any such valise, portmanteau, or bag, with an intent to rob, or steal any
mail, letter, packet, newspaper, or pamphlet, or to render either of the
same insecure, every such offender, upon conviction, shall, for every such
offence, pay a sum, not less than one hundred dollars, nor exceeding five
hundred-dollars, or be imprisoned not less than one year, nor exceeding
three years, at the discretion of the court before whom such conviction is
had.
4.-Sec. 24. That every person who, from and after the passage of this
act, shall procure, and advise, or assist, in the doing or perpetration of
any of the acts or crimes by this act forbidden, shall be subject to the
same penalties and punishments as the persons are subject to, who shall
actually do or perpetrate any of the said acts or crimes, according, to the
provision of this act.
5.- Sec. 25. That every person who shall be imprisoned by a judgment of
court, under and by virtue of the twenty-first, twenty-second, twenty-third,
or, twenty-fourth sections of this act, shall be kept at hard labor during
the period of such imprisonment.
MAILE, ancient English law. A small piece of money; it also signified a
rent, because the rent was paid with maile.
MAIM, pleadings. This is a technical word necessary to be introduced into
all indictments for mayhem; the words "feloniously did maim," must of
necessity be inserted, because no other word, or any circumlocution, will
answer the same purpose. 4 Inst. 118; Hawk. B. 2, c. 23, s. 17, 18, 77;
Hawk. B. 2, c. 25, s, 55; 1 Chit. Cr. Law, *244.
TO MAIM, crim. law. To deprive a person of such part of his body as to
render him less able in fighting or defending himself than he would have
otherwise been. Vide Mayhem.
MAINE. One of the new states of the United State's of America. This state
was admitted into the Union by the Act of Congress of March 3, 1820, 3
Story's L. U. S. 1761, from and after the fifteenth day of March, 1820, and
is thereby declared to be one of the United States of America, and admitted
into the Union on an equal footing with the original states in all respects
whatever.
2. The constitution of this state was adopted October 29th, 1819. The
powers of the government are vested in three distinct departments, the
legislative, executive and judicial.
3.-1. The legislative power is vested in two distinct branches, a
house of representatives and senate, each to have a negative on the other,
and both to be styled The legislature of Maine. 1. The house of
representatives is to consist of not less than one hundred, nor more than
two hundred members; to be apportioned among the counties according to law;
to be elected by the qualified electors for one year from the next day
preceding the annual meeting of the legislature. 2. The senate consists of
not less than twenty, nor more than thirty-one members, elected at the same
time, and for the same term, as the representatives, by the qualified
electors of the districts into which the state shall, from time to time, be
divided. Art. 4, part 2, s. 1. The veto power is given to the governor, by
art. 4, part 3, s. 2.
4.-2. The supreme executive power of the state is vested in a
governor, who is elected by the qualified electors, and holds his office one
year from the first Wednesday of January in each year. On the first
Wednesday of January annually, seven persons, citizens of the United States,
and resident within the state, are to be elected by joint ballot of the
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senators and representatives in convention, who are called the council. This
council is to advise the governor in the executive part of government, art.
5, part 2, s. 1 and 2.
5.-3. The judicial power of the State is distributed by the 6th
article of the constitution as follows:
6.-1. The judicial power of this state shall be vested in a supreme
judicial court, and such other courts as the legislature shall, from time to
time, establish.
7.-2. The justices of the supreme judicial court shall, at stated
times, receive a compensation, which shall not be diminished during their
continuance in office, but they shall receive no other fee or reward.
8.-3. They shall be obliged to give their opinion upon important
questions of law, and upon solemn occasions, when required by the governor,
council, senate, or house of representatives.
9.-4. All judicial officers; except justices of the peace, shall hold
their offices during good behaviour, but not beyond the age of seventy
years.
10.-5. Justices of the peace and notaries public shall hold their
offices during seven years, if they so long behave themselves well, at the
expiration of which term, they may be re-appointed, or others appointed, as
the public interest may require.
11.-6. The justices of the supreme judicial court shall bold no office
under the United States, nor any state, nor any other office under this
state, except that of justice of the peace.
For a history of the province of Maine, see 1 Story on the Const. Sec.
82.
MAINOUR, crim. law. The thing stolen found in the hands of the thief who has
stolen it; hence when a man is found with property which he has stolen, he
is said to be taken with the mainour, that is, it is found in his hands.
2. Formerly there was a distinction made between a larceny, when the
thing stolen was found in the hands of the criminal, and when the proof
depended upon other circumstances not quite so irrefragable; the former
properly was termed pris ove maynovere, or ove mainer, or mainour, as it is
generally written. Barr. on the Stat. 315, 316, note:
MAINPERNABLE. Capable of being bailed; one for whom bail may be taken;
bailable.
MAINPERNORS, English law. Those persons to whom a man, is delivered out of
custody or prison, on their becoming bound for his appearance.
2. Mainpernors differ from bail: a man's bail may imprison or surrender
him up before the stipulated day of appearance; mainpernors can do neither,
but are merely sureties for his appearance at the day; bail are only
sureties that the party be answerable for all the special matter for which
they stipulate; mainpernors are bound to produce him to answer all charges
whatsoever. 3. Bl. Com. 128; vide Dane's Index, h.t.
MAINPRISE, Eng. law. The taking a man into friendly custody, who might
otherwise be committed to prison, upon security given for his appearance at
a time and place assigned. Wood's Inst. B. 4, c. 4.
2. Mainprise differs from bail in this, that a man's mainpernors are
barely his sureties, and cannot imprison him themselves to secure his
appearance, as his bail may, who are looked upon as his gaolers, to whose
custody he is committed.. 6 Mod. 231; 7 Mod. 77, 85, 98; Ld. Raym. 606; Bac.
Ab. Bail in Civil Cases; 4 Inst. 180. Vide Mainpernors. Writ of Mainprise;
and 15 Vin. Ab. 146; 3 Bl. Com. 128.
MAINTENANCE, crimes. A malicious, or at least, officious interference in a
suit in which the offender has no interest, to assist one of the parties to
it against the other, with money or advice to prosecute or defend the
action, without any authority of law. 1 Russ. Cr. 176.
2. But there are many acts in the nature of maintenance, which become
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justifiable from the circumstances under which they are done. They may be
justified, 1. Because the party has an interest in the thing in variance; as
when he has a bare contingency in the lands in question, which possibly may
never come in esse. Bac. Ab. h.t. 2. Because the party is of kindred or
affinity, as father, son, or heir apparent, or husband or wife. 3. Because
the relation of landlord and tenant or master and servant subsists between
the party to the suit and the person who assists him. 4. Because the money
is given out of charity. 1 Bailey, S. C. Rep. 401. 5. Because the person
assisting the party to the suit is an attorney or counsellor: the assistance
to be rendered must, however, be strictly professional, for a lawyer is not
more justified in giving his client money than another man. 1 Russ. Cr. 179.
Bac. Ab Maintenance: Bro. Maintenance. This offence is punishable by fine
and imprisonment. 4 Black Com. 124; 2 Swift's Dig. 328; Bac. Ab. h.t. Vide 3
Hawks, 86; 1 Greenl. 292; 11 Mass. 553, 6 Mass. 421; 5 Pick. 359; 5 Monr.
413; 6 Cowen, 431; 4 Wend. 806; 14 John. R. 124; 3 Cowen, 647; 3 John. Ch.
R. 508 7 D. & R. 846; 5 B. & C. 188.
MAINTENANCE, quasi contracts. The support which one person, who is bound by
law to do so, gives to another for his living; for example, a father is
bound to find maintenance for his children; and a child is required by law
to maintain his father or mother when they cannot support themselves, and he
has ability to maintain them. 1 Bouv. Inst. n. 284-6.
MAJOR. Military language. The lowest of the staff officers; a degree higher
than captain.
MAJOR GENERAL. A military officer, commanding a division or number of
regiments; the next in rank below a lieutenant general.
MAJORES. The male ascendant beyond the sixth degree were so called among the
Romans, and the term is still used in making genealogical tables.
MAJORITY, persons. The state or condition of a person who has arrived at
full age. He is then said to be a major, in opposition to minor, which is
his condition during infancy.
MAJORITY, government. The greater number of the voters; though in another
sense, it means the greater number of votes given in which sense it is a
mere plurality. (q.v.)
2. In every well regulated society, the majority has always claimed and
exercised the right to govern the whole society, in the manner pointed out
by the fundamental laws and the minority are bound, whether they have
assented or not, for the obvious reason that opposite wills cannot prevail
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at the same time, in the same society, on the same subject. 1 Tuck. Bl. Com.
App. 168, 172; 9 Dane's Ab. 37 to 43; 1 Story, Const. Sec. 330.
3. As to the rights of the majority of part owners of vessels, vide 3
Kent, Com. 114 et seq. As to the majority of a church, vide 16 Mass. 488.
4. In the absence of all stipulations, the general rule in partnerships
is, that each partner has an equal voice, and a majority acting bonafide,
have the right to manage the partnership concerns, and dispose of the
partnership property, notwithstanding the dissent of the minority; but in
every case when the minority have a right to give an opinion, they ought to
be notified. 2 Bouv. Inst. n. 1954.
5. As to the majorities of companies or corporations, see Angel, Corp.
48, et seq.; 3 M. R. 495. Vide, generally, Rutherf. Inst. 249; 9 Serg. &
Rawle, 99; Bro. Corporation, pl. 63; 15 Vin. Abr. 183, 184; and the article
Authority; Plurality; Quorum.
TO MAKE. English law. To perform or execute; as to make his law, is to
perform that law which a man had bound himself to do; that is, to clear
himself of an action commenced against him, by his oath, and the oaths of
his neighbors. Old Nat. Br. 161. To make default, is to fail to appear in
proper time. To make oath, is to swear according to the form prescribed by
law.
MAKER. This term is applied to one who makes a promissory note and promises
to pay it when due. He who makes a bill of exchange is called the drawer,
and frequently in common parlance and in books of Reports we find the word
drawer inaccurately applied to the maker of a promissory note. See
Promissory note.
MAKING HIS LAW. A phrase used to denote the act of a person who wages his
law. Bac. Ab. Wager of law, in pr.
MALA FIDES. Bad faith. It is opposed to bona fides, good faith.
MANIA, med. jur. This subject will be considered by examining it, first, in
a medical point of view; and, secondly, as to its legal consequences.
2.-Sec. 1. Mania may be divided into intellectual and moral.
1. Intellectual mania is that state of mind which is characterised by
certain hallucinations, in which the patient is impressed with the reality
of facts or events which have never occurred, and acts in accordance with
such belief; or, having some notion not altogether unfounded, carries it to
an extravagant and absurd length. It may be considered as involving all or
most of the operations of the understanding, when it is said to be general;
or as being confined to a particular idea, or train of ideas, when it is
called partial.
3. These will be separately examined. 1st. General intellectual mania
is a disease which presents the most chaotic confusion into which the human
mind, can be involved, and is attended by greater disturbance of the
functions of the body than any other. According to Pinel, Traite
d'Alienation Mentale, p. 63, "The patient sometimes keeps his head elevated
and his looks fixed on. high; he speaks in a low voice, or utters cries and
vociferations without any apparent motive; he walks to and fro, and
sometimes arrests his steps as if fixed by the sentiment of admiration, or
wrapt up in profound reverie. Some insane persons display wild excesses of
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merriment, with immoderate bursts of laughter. Sometimes also, as if nature
delighted in contrasts, gloom and taciturnity prevail, with involuntary
showers of tears, or the anguish of deep sorrow, with all the external signs
of acute mental suffering. In certain cases a sudden reddening of the eyes
and excessive loquacity give presage of a speedy explosion of violent
madness and the urgent necessity of a strict confinement. One lunatic, after
long intervals of calmness, spoke at first with volubility, uttered frequent
shouts of laughter, and then shed a torrent of tears; experience had taught
the necessity of shutting him up immediately, for his paroxysms were at such
times of the greatest violence. "Sometimes, however, the patient is not
altogether devoid of intelligence; answers some questions very
appropriately, and is not destitute of acuteness and ingenuity. The
derangement in this form of mania is not confined to the intellectual
faculties, but not unfrequently extends to the moral powers of the mind.
4.-2d. Partial intellectual mania is generally known by the name of
monomania. (q.v.) In its most usual and simplest form, the patient has
conceived some single notion contrary to common sense and to common
experience, generally dependent on errors of sensation; as, for example,
when a person believes that he is made of glass, that animals or men have
taken their abode in his stomach or bowels. In these cases the understanding
is frequently found to be sound on all subjects, except those connected with
the hallucination. Sometimes, instead of being limited to a single point,
this disease takes a wider range, and there is a class of cases, where it
involves a train of morbid ideas. The patient then imbibes some notions
connected with the various relations of persons, events, time, space, &c.,
of the most absurd and unfounded nature, and endeavors, in some measure, to
regulate his conduct accordingly; though, in most respects, it is grossly
inconsistent with his delusion.
5. Moral mania or moral insanity, (q.v.) is divided into, first,
general, where all the moral faculties are subject to a general disturbance
and secondly, partial, where one or two only of the moral powers are
perverted.
6. These will be briefly and separately examined. 1st. It is certain
that many individuals are living at large who are affected, in a degree at
least, by general moral mania. They are generally of singular habits,
wayward temper, and eccentric character; and circumstances are frequently
attending them which induce a belief that they are not altogether sane.
Frequently there is a hereditary tendency to madness in the family; and, not
seldom, the individual himself has at a previous period of life sustained an
attack of a decided character: his temper has undergone a change, he has
become an altered man, probably from the time of the occurrence of
something which deeply affected him, or which deeply affected his bodily
constitution. Sometimes these alterations are imperceptible, at others, they
are sudden and immediate. Individuals afflicted with this disease not
unfrequently "perform most of the common duties of life with propriety, and
some of them, indeed, with scrupulous exactness, who exhibit no strongly
marked features of either temperament, no traits of superior or defective
mental endowment, but yet take violent antipathies, harbor unjust
suspicions, indulge strong propensities, affect singularity in dress, gait,
and phraseology; are proud, conceited, and ostentatious; easily excited and
with difficulty appeased; dead to sensibility, delicacy, and refinement;
obstinately riveted to the most absurd opinions; prone to controversy, and
yet incapable of reasoning; always the hero of their own tale, using
hyperbolic, high flown language to express the most simple ideas,
accompanied by unnatural gesticulation, inordinate action, and frequently by
the most alarming expression of countenance. On some occasions they suspect
sinister intentions on the most trivial grounds; on others are a prey to
fear and dread from the most ridiculous and imaginary sources; now embracing
every opportunity of exhibiting romantic courage and feats and hardihood,
then indulging themselves in all manner of excesses. Persons of this
description, to the casual observer, might appear actuated by a bad heart,
but the experienced physician knows it is the head which is defective. They
seem as if constantly affected by a greater or less degree of stimulation
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from intoxicating liquors, while the expression of countenance furnishes an
infallible proof of mental disease. If subjected to moral restraint, or a
medical regimen, they yield with reluctance to the means proposed, and
generally refuse and resist, on the ground that such means are unnecessary
where no disease exists; and when, by the system adopted, they are so far
recovered, as to be enabled to suppress the exhibition of their former
peculiarities, and are again fit to be restored to society, the physician,
and those friends who put them under the physician's care, are generally
ever after objects of enmity, and frequently of revenge." Cox, see cases of
this Pract. Obs. on Insanity, kind of madness cited in Ray, Med. Jur. Sec.
112 to 119; Combe's Moral Philos. lect. 12.
7.-2d. Partial moral mania consists in the derangement of one or a
few of the affective faculties, the moral and intellectual constitution in
other respects remaining in a sound state. With a mind apparently in full
possession of his reason, the patient commits a crime, without any
extraordinary temptation, and with every inducement to refrain from it, he
appears to act without a motive, or in opposition to one, with the most
perfect consciousness of the impropriety, of his conduct, and yet he pursues
perseveringly his mad course. This disease of the mind manifests itself in a
variety of ways, among which may be mentioned the following: 1. An
irresistible propensity to steal. 2. An inordinate propensity to lying. 3. A
morbid activity of the sexual propensity. Vide Erotic Mania. 4. A morbid
propensity to commit arson. 5. A morbid activity of the propensity to
destroy. Ray, Med. Jur. ch. 7.
8.-Sec. 2. In general, persons laboring under mania are not
responsible nor bound for their acts like other persons, either in their
contracts or for their crimes, and their wills or testaments are voidable.
Vide Insanity; Moral Insanity. 2 Phillim. Eccl. R. 69; 1 Hagg. Cons: R. 414;
4 Pick. R. 32; 3 Addams, R. 79; 1 Litt. R. 371.
MANIA A POTU. Insanity arising from the use of spirituous liquors. Vide
Delirium Tremens.
MANIFEST, com. law. A written instrument containing a true account of the
cargo of a ship or commercial vessel.
2. The Act of March 2, 1799, s. 23, requires that when goods, wares, or
merchandise, shall be brought into the United States, from any foreign port
or place, in any ship or vessel, belonging, in whole or in part to a citizen
or inhabitant of the United States, the manifest shall be in writing, signed
by the master of the vessel, and that it shall contain the names of the
places where the goods in such manifest mentioned, shall have been
respectively taken on board, and the places within the United States, for
which they are respectively consigned, particularly noticing the goods
destined for each place, respectively; the name, description, and build of
such vessel, and her true admeasurement or tonnage, the place to which she
belongs, with the name of each owner, according to her register, the name of
her master, and a just and particular account of the goods so laden on
board, whether in package or stowed loose, of any kind whatsoever, with the
marks and numbers on each package, the numbers and descriptions of the
packages in words at length, whether leaguer, pipe, butt, puncheon,
hogshead, barrel, keg, case, bale, pack, truss, chest, box, bandbox, bundle,
parcel, cask, or package of any kind, describing each by its usual
denomination; the names of the persons to whom they are respectively
consigned, agreeably to the bills of lading, unless when the, goods are
consigned to order, when it shall be so expressed; the names of the several
passengers on; board, distinguishing whether cabin or steerage passengers,
or both, with their baggage, specifying the number and description of
packages belonging to each, respectively; together with an account of the
remaining sea stores, if any. And if any merchandise be imported, destined
for different districts, or ports, the quantities and packages thereof shall
be inserted in successive order in the manifest; and all spirits, wines and
teas, constituting the whole or any part of the cargo of any vessel, shall
be inserted in successive order, distinguishing the ports to which they may
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be destined, and the kinds, qualities and quantities thereof; and if
merchandise be imported by citizens or inhabitants of the United States, in
vessels other than of the United States, the manifests shall be of the form
and shall contain the particulars aforesaid, except that the vessel shall be
specially described as provided by a form in the act. 1 Story's Laws, 593,
594.
3. The want of a manifest, where one is required, or when it is false,
is severely punished.
MANIFEST, evidence. That which is clear and requires no proof; that which is
notorious. See Notoriety.
MANIFESTO. A solemn declaration, by the constituted authorities of a nation,
which contains the reasons for its public acts towards another.
2. On the declaration of war, a manifesto is usually issued in which
the nation declaring the war, states the reasons for so doing. Vattel, liv.
3, c. 4, Sec. 64; Wolff, Sec. 1187. See Anti-Manifesto.
MANKIND. Persons of the male sex; but in a more general sense, it includes
persons of both sexes; for example, the statute of 25 Hen. VIII., c. 6,
makes it felony to commit, sodomy with mankind or beast. Females as well as
males axe included under the term mankind. Fortesc. 91; Bac. Ab. Sodomy. See
Gender.
MANNER AND FORM, pleading. After traversing any allegation in pleading, it
is usual to say "in manner and form as he has in his declaration in that
behalf alleged," which is as much as to include in the traverse, not only
the mere fact opposed to it, but that in the manner and form in which it is
stated by the other party. These words, however, only put in issue the
substantial statement of the manner of the fact traversed, and do not extend
to the time, place, or other circumstances attending it, if they were not
originally material and necessary to be proved as laid. 3 Bouv. Inst. p.
297. See Modo et forma.
MANNOPUS. An ancient word which signifies goods taken in the hands of an
apprehended thief.
MANOR, estates. This word is derived from the French manoir, and signifies,
a house, residence, or habitation. At present its meaning is more enlarged,
and includes not only a dwelling-house, but also lands. Vide Co. Litt. 58,
108; 2 Roll. Ab. 121 Merl. Repert. mot Manoir. See Serg. Land Laws of
Pennsyl. 195.
2. By the English law, a manor is a tract of land originally granted
by the king to a person of rank, part of which was given by the grantee to
his followers, and the rest lie retained under the name of his demesnes;
that which remained uncultivated was called the lord's waste, and served for
public roads and common of pasture for the lord and his tenants.
MANSION. This term is synonymous with house. (q.v.) 1 Chit. Pr. 167; 2 T.
R. 502; 1 Tho. Co. Litt. 215, n. 35; 9 B. & C. 681; S. C. 17 E. C. L. R.
472, and the cases there cited; Com. Dig. Justices, P 5; 3 Serg. & Rawle,
199. A portion only of a building may come under the description of a
mansion-house. 1 Leach, 89, 428; 1 East, P. C. C. 15, s. 19. 2 Bouv. Inst.
n. 1571, note.
MANSLAUGHTER, crim. law. The unlawful killing of another without malice
either express or implied. 4 Bl. Com. 190 1 Hale, P. C. 466. The
distinctions between manslaughter and murder, consists in the following. In
the former, though the act which occasions the death be unlawful, or likely
to be attended with bodily mischief, yet the malice, either express or
implied, which is the very essence of murder, is presumed to be wanting in
manslaughter. 1 East, P. C. 218 Foster, 290.
2. It also differs from murder in this, that there can be no
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accessaries before the fact, there having been no time for premeditation. 1
Hale, P. C. 437; 1 Russ. Cr. 485. Manslaughter is voluntary, when it happens
upon a sudden heat; or involuntary, when it takes place in the commission of
some unlawful act.
3. The cases of manslaughter may be classed as follows those which take
place in consequence of, 1. Provocation. 2. Mutual combat. 3. Resistance to
public officers, &c. 4. Killing in the prosecution of an unlawful or wanton
act. 5. Killing in the prosecution of a lawful act, improperly performed, or
performed without lawful authority.
4.-1. The provocation which reduces the killing from murder to
manslaughter is an answer to the presumption of malice which the law raises
in every case of homicide; it is therefore no answer when express malice is
proved. 1 Russ. Cr, 440; Foster, 132; 1 East, P. C. 239; and to be available
the provocation must have been reasonable and recent, for no words or slight
provocation will be sufficient, and if the party, has had time to cool,
malice will be inferred.
5.-2. In cases of mutual combat, it is generally manslaughter only
when one of the parties is killed. When death ensues from duelling the rule
is different, and such killing is murder.
6.-3. The killing of an officer by resistance to him while acting
under lawful authority is murder; but if the officer be acting under a void
or illegal authority, or out of his jurisdiction, the killing is
manslaughter, or excusable homicide, according to the circumstances of the
case. 1 Moody, C. C. 80, 132; 1 Hale, P. C. 458; 1 East, P. C. 314; 2 Stark.
N. P. C. 205; S. C. 3 E. C. L. R. 315.
7.-4. Killing a person while doing an act of mere wantonness, is
manslaughter as, if a person throws down stones in a coal-pit, by which a
man is killed, although the offender was only a trespasser. Lewin, C. C.
179.
8.-5. When death ensues from the performance of a lawful act, it may,
in consequence of the negligence of the offender, amount to manslaughter.
For instance, if the death has been, occasioned by negligent driving. 1
East, P. C. 263; 1 C. & P. 320 S. C. 9 E. C. L. R. 408; 6 C. & P. 629; S. C.
25 E. C. L. R. 569. Again, when death ensues, from the gross negligence of a
medical or surgical practitioner, it is manslaughter. 1 Hale, P. C. 429; 3
C. & P. 632; S. C. 14 E, C. L. R. 495.
MANSTEALING. This word is sometimes used synonymously with kidnapping. The
latter is more technical. 4 Bl. Com. 219.
MANU FORTI. With strong hand. (q.v.) This term is used in pleading in cases
of forcible entry, and no other words are of equal import. Dane's Ab. ch.
132, a. 6; ch. 203, a. 12.
MANU OPERA. This has the same meaning with mannopus. (q.v.)
MANUAL. That which is employed or used by the hand, of which a present
profit may be made. Things in the manual occupation of the owner cannot be
distrained for rent. Vide Tools.
MANUCAPTIO, practice. In the English law it is a writ which lies for a man
taken on suspicion of felony and the like, who cannot be admitted to bail by
the sheriff, or others having power to let to mainprise. F. N. B. 249.
MANUCAPTORS. The same as mainpernors. (q.v.)
MANUFACTURE. This word is used in the English and American patent laws. This
term includes two classes of things; first, all machinery which is to be
used and is not the object of sale; and, secondly, substances (such, for
example, as medicines) formed by chemical processes, when the vendible
substance is the thing produced, and that which operates preserves no
permanent form. In the first class, the machine, and, in the second the
substance produced, is the subject of the patent. 2 H. Bl. 492. See 8 T. R.
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99; 2 B. & A. 349; Day. Pat. Cas. 278; Webst. on Pat. 8; Phil. on Pat. 77;
Perp. Manuel des Inv. c. 2, s. 1; Renouard, c. 5, s. 1; Westminster Review,
No. 44, April 1835, p. 247; 1 Bell's Com., B. 1, part 2, c. 4, s. 1, p. 110,
6th ed.
MANUMISSION, contracts. The agreement by which the owner or master of a
slave sets him free and at liberty; the written instrument which contains
this agreement is also called a manumission.
2. In the civil law it was different from emancipation, which, properly
speaking, was applied to the liberation of children from paternal power.
Inst. liv. 1, t. 5 & 12; Co. Litt. 137, a; Dane's Ab. h.t.
MANURE, Dung. When collected in a heap, it is considered as personal
property, but, when spread, it becomes a part of the land and acquires the
character of real estate. Alleyn, 31; 2 Ired. R. 326.
MANUS. Anciently signified the person taking an oath as a compurgator. The
use of this word probably came from the party laying his hand on the New
Testament. Manus signifies, among the civilians, power, and is frequently
used as synonymous with potestas. Lec. El. Dr. Rom. Sec. 94.
MANUSCRIPT. A writing; a writing which has never been printed.
2. The act of congress securing to authors a copyright passed February
3, 1831, sect. 9, protects authors in their manuscripts, and renders any
person who shall unlawfully publish a manuscript liable to an action, and
authorizes the courts to enjoin the publisher. See Copyright. The right of
the author, to his manuscripts, at common law, cannot be contested. 4 Burr.
2396; 2 Eden, Ch. R. 329; 2 Story, R. 100; 2 Atk. 342; Ambl. 694; 2 B. & A.
290; 2 Story, Eq. Jur. Sec. 943; Eden, Inj. 322; 2 B. & A. 298; 2 Bro. P. C.
(Toml. ed.) 138; 4 Vin. Ab. 278; 2 Atk. 342; 2 Ves. & B. 23. These rights
will be considered as abandoned if the author publishes his manuscripts,
without securing the copyright under the acts of congress. See Bouv. Inst.
Index, h.t.; Copyright.
MARAUDER. One who, while employed in the army as a soldier, commits a
larceny or robbery in the neighborhood of the camp, or while wandering away
from the army. Merl. Repert. h.t.
MARC-BANCO. The name of a coin. The marc-banco of Hamburg, as money of
account, at the custom-house, is deemed and taken to be of the value of
thirty-five cents. Act of March 3, 1843.
MARCHES, Eng. law. This word signifies the limits, or confines, or borders.
Bac. Law Tracts, tit. Jurisdiction of the. Marches, p. 246. It was applied
to the limits between England and Wales or Scotland. In Scotland the term
marches is applied to the boundaries between private properties.
MARETUM. Marshy ground overflowed by the sea or great rivers. Co. Litt. 5.
MARINARIUS. An ancient word which signified a mariner or seaman; in England
marinarius capitaneus, was the admiral or warden of the ports.
MARINE. Whatever concerns the navigation of the sea, and forms the naval
power of a nation is called its marine.
MARINE CONTRACT. One which relates to business done or transacted upon the
sea and in sea ports, and over which the courts of admiralty have
jurisdiction concurrent with the courts of common law; such contracts
include according to civilians and jurists among other things, charter
parties, affreightments, marine hypothecations, contracts for the marine
service in the building, repairing, supplying and navigating ships;
contracts and quasi contracts respecting averages, contributions and
jettisons, and policies of insurance. 2 Gall. R. 398, where Judge Story gave
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a very learned opinion on the subject.
MARINE INSURANCE, contracts. A contract by which one party, for a stipulated
premium, undertakes to indemnify the other, against all perils or sea risks,
to which his ship; freight or cargo, or some of them, may be exposed, during
a certain voyage or fixed period of time. 1 Bouv. Inst. n. 1175, et seq. See
Insurance Marine.
MARINE INTEREST, contracts. A compensation paid for the use and risk of
money loaned on respondentia and bottomry; provided the money be loaned and
put in risk, there is no limit as to the amount which may be lawfully
charged by the lender. 2 Marsh. Ins. 749; Hall on Mar. Loans; Pothier, Pret
a. la Grosse, n. 19; 1 Stuart's (L. C.) R. 130.
MARINE LEAGUE. A measure equal to the twentieth part of a degree. Bouch.
Inst. n. 1845, not. Vide Cannon Shot; Sea.
MARINER. One whose occupation is to navigate vessels on the sea. Vide Seamen
Shipping articles.
2. By act of congress, 1 Story, Laws of U. S., ch. 56, s. 4, p. 109, it
is provided, that no sum exceeding one dollar shall be recovered from any
seaman or mariner (in the merchant service,) by any person, for any debt
contracted during the time such seaman or mariner shall actually belong to
any ship or vessel, until the voyage for which such seaman or mariner
engaged, shall be ended.
MARITAGIUM. Anciently that portion which was given with a daughter in
marriage.
2. During the existence of the feudal law, it was the right which the
lord of the fee had, under certain tenures, to dispose of the daughters of
his vassal in marriage. By this word was also understood marriage. Beames'
Glanv. 138, n; Bract. 21 a; Spelm. Gl. ad voc.; 2 Bl. Com. 69; Co. Litt. 21
b, 76 a.
MARITAL. That which belongs to marriage; as marital rights, marital duties.
2. Contracts made by a feme sole with a view to deprive her intended
husband of his marital rights, with respect to her property, are a fraud
upon him, and may be set aside in equity. By the marriage, the husband
assumes the duty of paying her debts, contracted previous to the coverture,
and of supporting her during its existence; and he cannot, therefore, be
fraudulently deprived, by the intended wife, of those rights which enable
him to perform the duties which attach to him. 2 Cha. R. 42; Newl. Contr.
424; 1 Vern. 408; 2 Vern. 17; 2 P. Wms. 357, 674; 2 Bro. C. C. 345; 1 Ves.
jr. 22; 2 Cox, R. 28; 2 Beav. 528; 2 Ch. R. 81; White's. L. C. in Eq. *277;
1 Hill, Ch. R. 1, 4; 13 Maine, R. 124; 1 McMull. Eq. R. 237 3 Iredell's Eq.
R. 487; 4 Wash. C. C. R. 224.
MARITAL PORTION. In Louisiana, this name is given to that part of a deceased
husband's estate, to which the widow is entitled. Civil Code, 334, art. 55;
3 Mart. N. S. 1.
MARITIME. That which belongs to or is connected with the sea.
MARITIME CAUSE. Maritime causes are those arising from maritime contracts,
whether made at sea or on land, that is, such as relate to the commerce,
business or navigation of the sea; as, charter parties, affreightments,
marine loans, hypothecations, contracts for maritime service in building,
repairing, supplying and navigating ships, contracts and quasi contracts
respecting averages, contributions and jettisons; contracts relating to
marine insurance, and those between owners of ships. 3 Bouv. Inst. n. 2621.
2. There are maritime causes also for torts and injuries committed at
sea.
3. In general, the courts of admiralty have a concurrent jurisdiction
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with courts of law, of all maritime causes: and in some cases they have
exclusive jurisdiction.
MARITIME LAW. That system of law which relates to the affairs of the sea,
such as seamen, ships, shipping, navigation, and the like.
MARITIME LOAN. A contract or agreement by which one, who is the lender,
lends to another, who is the borrower, a certain sum of money, upon
condition that if the thing upon which the loan has been made, should be
lost by any peril of the sea, or vis major, the lender shall not be repaid,
unless what remains shall be equal to the sum borrowed; and if the thing
arrive in safety, or in case it shall not have been injured, but by its own
defects or the fault of the master or mariners, the borrower shall be bound
to return the sum borrowed, together with a certain sum agreed upon as the
price of the hazard incurred. Emer. Mar. Loans, c. 1, s. 2; Poth. h.t. Vide
Bottomry; Gross Adventure; Interest, maritime; Respondentia.
MARITIME PROFIT, mar. law. The French writers use the term maritime profit
to signify any profit derived from a maritime lean. Vide Interest maritime.
MARK. This term has several acceptations. 1. It is a sign traced on paper or
parchment, which stands in the place of a signature, usually made by persons
who cannot write. 2 Cart. R. 324; M. & M. 516; 12 Pet. 150; 7 Bing. 457; 2
Ves. 455; 1 V. & B. 362; 1 Ves., jr. 11. A mark is now held to be a good
signature, though the party was able to write. 8 Ad. & El. 94; 3 Nev. & Per.
228; 3 Curt. 752; 5 John. 144. Vide Subscription.
2.-2. It is the sign, writing or ticket put upon manufactured goods
to distinguish them from others. Poph. R. 144; 3 B & C. 541; 2 Atk. R. 485;
2 V. & B. 218; 3 M. & C. 1; Ed. Inj. 814. Vide Trade Marks.
3.-3. Mark or marc, denotes a weight used in several parts of Europe,
and for several commodities, especially gold and silver. When gold and
silver are sold by the mark, it is divided into twenty-four carats.
4.-4. Mark is also in England a money of accounts, and in some other
countries a coin. The English marc is two-thirds of a pound sterling, or
13s. 4d., and the Scotch mark is of equal value in Scotch money of account.
Ency. Amer. h.t.
MARKET. A public place appointed by public authority, where all sorts of
things necessary for the subsistence, or for the conveniences of life, are
sold.
2. Markets are generally regulated by local laws.
3. By the term market is also understood the demand there is for any
particular article; as, the cotton market in Europe is dull. Vide 15 Vin.
Ab. 42; Com. Dig. h.t.
MARKET OVERT, Eng. law. Market overt is an open or public market; that is,
a place appointed by law or custom for the sale of goods and chattels at
stated times in public.
2. In London, every day except Sunday, is market day. In the country,
particular days are fixed for market days. 2 Bl. Com. 449.
3. It is a general rule that sales of vendible articles made in market
overt, are good not only between the parties, but are also binding on all
those who have any property or right therein. Id. 2 Chitt. Com. Law, 148 to
154; Com. Dig. Market, E; Bac. Abr. Fairs and Market, E; 5 B. & A. 624;
Dane's Abr. chap. 45, a 2.
4. There is no law recognizing the effect of a sale in market overt in
Pennsylvania. 3 Yeates R. 347; 5 Serg. & Rawle, 130; in New York; 1 Johns,
480; in Massachusetts; 8 Mass. R. 521; 14 Mass. R. 500; in Ohio; 5 Ohio, R.
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203; nor in Vermont. 1 Tyl. R. 341; nor indeed in any of the United States.
10 Pet. 161.
MARLEBRIDGE, STATUTE OF. The name of a statute passed the 52 Hen. III, A. D.
1267, so called because it was enacted at Marlebridge. Barr. on Stat. 58.
MARQUE AND REPRISAL. The name given to a commission granted by the supreme
power of a state to a private person for the purpose of seizing the property
of a foreign state or its subjects. Wheat. Law of Nations, 340. Vide Letters
of Marque.
MARRIAGE. A contract made in due form of law, by which a free man and a free
woman reciprocally engage to live with each other during their joint lives,
in the union which ought to exist between husband and wife. By the terms
freeman and freewoman in this definition are meant, not only that they are
free and not slaves, but also that they are clear of all bars to a lawful
marriage. Dig. 23, 2, 1; Ayl. Parer. 359; Stair, Inst. tit. 4, s. 1;
Shelford on Mar. and Div. c. 1, s. 1.
2. To make a valid marriage, the parties must be willing to contract,
Able to contract, and have actually contracted.
3.-1. They must be willing to contract. Those persons, therefore, who
have no legal capacity in point of intellect, to make a contract, cannot
legally marry, as idiots, lunatics, and infant; males under the age of
fourteen, and females under the age of twelve, and when minors over those
ages marry, they must have the consent of their parents or guardians.
4. There is no will when the person is mistaken in the party whom he
intended to marry; as, if Peter intending to marry Maria, through error or
mistake of person, in fact marries Eliza; but an error in the fortune, as if
a man marries a woman whom he believes to be rich, and he finds her to be
poor; or in the quality, as if he marry a woman whom he took to be chaste,
and whom he finds of an opposite character, this does not invalidate the
marriage, because in these cases the error is only of some quality or
accident, and not in the person. Poynt. on Marr. and Div. ch. 9.
5. When the marriage is obtained by force or fraud, it is clear that
there is no consent; it is, therefore, void ab initio, and may be treated as
null by every court in which its validity may incidentally be called in
question. 2 Kent, Com. 66; Shelf. on Marr. and Div. 199; 2 Hagg. Cons. R.
246; 5 Paige, 43.
6.-2. Generally, all persons who are of sound mind, and have arrived
to years of maturity, are able to contract marriage. To this general rule,
however, there are many exceptions, among which the following may be
enumerated.
7.-1. The previous marriage of the party to another person who is
still living.
8.-2. Consanguinity, or affinity between the parties within the
prohibited degree. It seems that persons in the descending or ascending
line, however remote from each other, cannot lawfully marry; such marriages
are against nature; but when we come to consider collaterals, it is not so
easy to fix the forbidden degrees, by clear and established principles.
Vaugh. 206; S. C. 2 Vent. 9. In several of the United States, marriages
within the limited degrees are made void by statute. 2 Kent, Com. 79; Vide
Poynt. on Marr. and Div. ch. 7.
9.-3. Impotency, (q.v.) which must have existed at the time of the
marriage, and be incurable. 2 Phillim. Rep. 10; 2 Hagg. Rep. 832.
10.-4. Adultery. By statutory provision in Pennsylvania, when a person
is convicted of adultery with another person, or is divorced from her
husband, or his wife, he or she cannot afterwards marry the partner of his
or her guilt. This provision is copied from the civil law. Poth. Contr. de
Mariage, part 3, c. 3, art. 7. And the same provision exists in the French
code civil, art. 298. See 1 Toull. n. 555.
11.-3. The parties must not only be willing and able, but must have
actually contracted in due form of law.
12. The common law requires no particular ceremony to the valid
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celebration of marriage. The consent of the parties is all that is
necessary, and as marriage is said to be a contract jure gentium, that
consent is all that is needful by natural or public law. If the contract be
made per verba de presenti, or if made per verba de futuro, and followed by
consummation, it amounts to a valid marriage, and which the parties cannot
dissolve, if otherwise competent; it is not necessary that a clergyman
should be present to give validity to the marriage; the consent of the
parties may be declared before a magistrate, or simply before witnesses; or
subsequently confessed or acknowledged, or the marriage may even be inferred
from continual cohabitation, and reputation as husband and wife, except in
cases of civil actions for adultery, or public prosecutions for bigamy. 1
Silk. 119; 4 Burr. 2057; Dougl. 171; Burr. Settl. Cas. 509; 1 Dow, 148; 2
Dow, 482; 4 John. 2; 18 John. R. 346; 6 Binn, 405; 1 Penn. R. 452; 2 Watts,
R. 9. But a promise to marry at a future time, cannot, by any process of
law, be converted into a marriage, though the breach of such promise will be
the foundation of an action for damages.
13. In some of the states, statutory regulations have been made on this
subject. In Maine and Massachusetts, the marriage must be made in the
presence, and with the assent of a magistrate, or a stated or ordained
minister of the gospel. 7 Mass. Rep. 48; 2 Greenl. Rep. 102. The statute of
Connecticut on this subject, requires the marriage to be celebrated by a
clergyman or magistrate, and requires the previous publication of the
intention of marriage, and the consent of parents; it inflicts a penalty on
those who disobey its regulations. The marriage, however, would probably be
considered valid, although the regulations of the statutes had not been
observed. Reeve's Dom. Rel. 196, 200, 290. The rule in Pennsylvania is, that
the marriage is valid, although the directions of the statute have not been
observed. 2 Watts, Rep. 9; 1 How. S. C. R. 219. The same rule probably
obtains in New Jersey; 2 Halsted, 138; New Hampshire; 2 N. H. Rep. 268; and
Kentucky. 3 Marsh. R. 370. In Louisiana, a license must be obtained from the
parish judge of the parish in which at least one of the parties is
domiciliated, and the marriage must be celebrated before a priest or
minister of a religious sect, or an authorized justice of the peace; it must
be celebrated in the presence of three witnesses of full age, and an act
must be made of the celebration, signed by the person who celebrated the
marriage, by the parties and the witnesses. Code, art. 101 to 107. The 89th
article of the Code declares, that such marriages only are recognized by
law, as are contracted and solemnized according to the rules which it
prescribes. But the Code does not declare null a marriage not preceded by a
license, and not evidenced by an act signed by a certain number of witnesses
and the parties, nor does it make such an act exclusive evidence of the
marriage. The laws relating to forms and ceremonies are directory to those
who are authorized to celebrate marriage. 6 L. R. 470.
14. A marriage made in a foreign country, if good there, would, in
general, be held good in this country, unless when it would work injustice,
or be contra bonos mores, or be repugnant to the settled principles and
policy of our laws. Story, Confl. of Laws, Sec. 87; Shelf. on M. & D. 140; 1
Bland. 188; 2 Bland. 485; 3 John. Ch. R. 190; 8 Ala. R. 48.
15. Marriage is a contract intended in its origin to endure till the
death of one of the contracting parties. It is dissolved by death or
divorce.
16. In some cases, as in prosecutions for bigamy, by the common law, an
actual marriage must be proved in order to convict the accused. See 6 Conn.
R. 446. This rule is much qualified. See Bigamy.
17. But for many purposes it may be proved by circumstances; for
example, cohabitation; acknowledgment by the parties themselves that they
were married; their reception as such by their friends and relations; their
correspondence, on being casually separated, addressing each other as man
and wife; 2 Bl. R. 899; declaring, deliberately, that the marriage took
place in a foreign country; 2 Moo. & R. 503; describing their children, in
parish registers of baptism, as their legitimate offspring; 2 Str. 1073; 8
Ves. 417; or when the parties pass for husband and wife by common
reputation. 1 Bl. R. 639; S. C. 4 Burr. 2057; Dougl. 174; Cowp. 594; 3
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Swans. R. 400; 8 S. & R. 159; 2 Hayw. R. 3; 1 Taylor, R. 121; 1 H. & McH.
152; 2 N. & McC. 114; 5 Day, R. 290; 4 R. & M. 507; 9 Mass. R. 414; 4 John.
52; 18 John. 346. After their death, the presumption is generally
conclusive. Cowp. 591; 6 T. R. 330.
18. The civil effects of marriage are the following: 1. It confirms all
matrimonial agreements between the parties.
19.-2. It vests in the husband all the personal property of the wife,
that which is in possession absolutely, and choses in action, upon the
condition that he shall reduce them to possession; it also vests in the
husband right to manage the real estate of the wife, and enjoy the profits
arising from it during their joint lives, and after her death, an estate by
the curtesy when a child has been born. It vests in the wife after the
husband's death, an estate in dower in the husband's lands, and a right to a
certain part of his personal estate, when he dies intestate. In some states,
the wife now retains her separate property by statute.
20.-3. It creates the civil affinity which each contracts towards the
relations of the other.
21.-4. It gives the husband marital authority over the person of his
wife.
22.-5. The wife acquires thereby the name of her husband, as they are
considered as but one, of which he is the head: erunt duo in carne una.
23.-6. In general, the wife follows the condition of her husband.
24.-7. The wife, on her marriage, loses her domicil and gains that of
her husband.
25.-8. One of the effects of marriage is to give paternal power over
the issue.
26.-9. The children acquire the domicil of their father.
27.-10. It gives to the children who are the fruits of the marriage,
the rights of kindred not only with the father and mother, but all their
kin.
28.-11. It makes all the issue legitimate.
Vide, generally, 1 Bl. Com. 433; 15 Vin. Ab. 252; Bac. Ab. h.t.; Com.
Dig. Baron and Feme, B; Id. Appx. b. t.; 2 Sell. Pr. 194; Ayl. Parergon,
359; 1 Bro. Civ. Law, 94; Rutherf. Inst. 162; 2 Supp. to Ves. jr. 334; Roper
on Husband & Wife; Poynter on Marriage and Divorce; Merl. Repert. h.t.;
Pothier, Traite du Contrat de Marriage; Toullier, h.t.; Chit. Pract. Index,
h.t.; Dane's Ab. Index, h.t., Burge on the Confl. of Laws, Index, h.t.;
Bouv. Inst. Index, h.t.
MARRIAGE BROKAGE. By this expression is meant the act by which a person
interferes, for a consideration to be received by him, between a man and a
woman, for the purpose of promoting a marriage between them. The money paid
for such service is also known by this name.
2. It is a doctrine of the courts of equity that all marriage brokage
contracts are utterly void, as against public policy; and are, therefore,
incapable of confirmation. 1 Fonb. Eq. B. 1, ch. 4, s. 10, note a; 1 Story,
Eq. Jur. Sec. 263; Newl. on Contr. 469.
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MARSHAL. An officer of the United States, whose duty it is to execute the
process of the courts of the United States. His duties are very similar to
those of a sheriff.
2. It is enacted by the act to establish the judicial courts of the
United States, 1 Story's L. U. S. 53, as follows:
Sec. 27. That a marshal shall be appointed, in and for each district,
for the term of four years, but shall be removable from office at pleasure
whose duty it shall be to attend the district and circuit courts, when
sitting therein, and also the supreme court in the district in which that
court shall sit: and to execute throughout the district, all lawful precepts
directed to him, and issued under the authority of the United States, and he
shall have power to command all necessary assistance in the execution of his
duty, and to appoint, as there shall be occasion, one or more deputies, who
shall be removable from office by the judge of the district court, or the
circuit court sitting within the district, at the pleasure of either. And
before he enters on the duties of his office, he shall become bound for the
faithful performance of the same, by himself and by his deputies, before the
judge of the district court, to the United States jointly and severally,
with two good and sufficient sureties, inhabitants and freeholders of such
district, to be approved by the district judge, in the sum of twenty
thousand dollars, and shall take before said judge, as shall also his
deputies, before they enter on the duties of their appointment, the
following oath of office: "I, A B, do solemnly swear or affirm, that I will
faithfully execute all lawful precepts directed to the marshal of the
district of________under the authority of the United States, and true
returns make; and in all things well and truly, and without malice or
partiality, perform the duties of the office of marshal (or marshal's
deputy, as the case may be) of the district of _________ during my
continuance in said office, and take only my lawful fees. So help me God."
3.-Sec. 28. That in all causes wherein the marshal, or his deputy,
shall be a party, the writs and precepts therein shall be directed to such
disinterested person, as the court, or any justice or judge thereof may
appoint, and the person so appointed is hereby authorized to execute and
return the same. And in case of the death of any marshal, his deputy or
deputies, shall continue in office unless otherwise specially removed; and
shall execute the same in the name of the deceased, until another marshal
shall be appointed and sworn: And the defaults, or misfeasances in office of
such deputy or deputies in the mean time, as well as before, shall be
adjudged a breach of the condition of the bond given, as before directed, by
the marshal who appointed them; and the executor or administrator of the
deceased marshal, shall have like remedy for the defaults and misfeasances
in office of such deputy or deputies during such interval, as they would be
entitled to if the marshal had continued in life, and in the exercise of his
said office, until his successor was appointed, and sworn or affirmed: And
every marshal, or his deputy, when removed from office, or when the term for
which the marshal is appointed shall expire, shall have power,
notwithstanding, to execute all such precepts as may be in their hands,
respectively, at the time of such removal or expiration of office; and the
marshal shall be held answerable for the delivery to his successors of all
prisoners which may be in his custody at the time of his removal, or when
the term for which he is appointed shall expire, and for that purpose may
retain such prisoners in his custody, until his successor shall be
appointed, and qualified as the law directs.
4. By the act making certain alterations in the act for establishing
the judicial courts, &c. passed June 9, 1794, 1 Story's L. U. S. 865, it is
enacted,
Sec. 7. That so much of the act to establish the judicial courts of the
United States, as is, or may be, construed to require the attendance of the
marshals of all the districts at the supreme court, shall be, and the same
is hereby repealed: And that the said court shall be attended, during its
session, by the marshal of the district only, in which the court shall sit,
unless the attendance of the marshals of other districts shall be required
by special order of the said court.
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5. The act of February 28, 1795, 1 Story's L. U. S. 391, directs,
Sec. 9. That the marshals of the several districts, and their deputies,
shall have the same powers, in executing the laws of the United States, as
sheriffs and their deputies, in the several states, have by law in executing
the laws of the respective states.
6. There are various other legislative provisions in relation to the
duties and rights of marshals, which are here briefly noticed with reference
to the laws themselves.
7.-1. The act of May 8, 1792, s. 4, provides for the payment of
expenses incurred by the marshal in holding the courts of the United States,
the payment of jurors, witnesses, &c.
8.-2. The act of April 16, 1817, prescribes the duties of the marshal
in relation to the proceeds of prizes captured by the public armed ships of
the United States and sold by decree of court.
9.-3. The resolution of congress of March 3, 1791; the act of
February 25, 1799, s. 5; and the resolution of March 3, 1821; all relate to
the duties of marshals in procuring prisons, and detaining and keeping
prisoners.
10.-4. The act of April 10, 1806, directs how and for what, marshals
shall give bonds for the faithful execution of their office.
11.-5. The act of September 18, 1850, s. 5, prescribes the duties of
the marshal in relation to obeying and executing all warrants and precepts
issued under the provisions of this act, and the penalties he shall incur
for refusing to receive and execute the said warrants when rendered, and for
permitting the fugitive to escape after arrest, Vide Story's L. U. S. Index,
h.t.; Serg. Const. Law, ch. 25; 2 Dall. 402; United States v. Burr, 365;
Mason's R. 100; 2 Gall. 101; 4 Cranch, 96; 7 Cranch, 276; 9 Cranch, 86, 212;
6 Wheat. 194; 9 Wheat. 645; Minot, Stat. U. S. Index, h.t.
MARSHALLING SECURITIES, equity. When a party has two funds by which his debt
is secured, and another creditor has a claim only on one of these funds, a
court of equity will compel the creditor having a double security to resort
to that fund which will leave the other creditor his security, this is
called marshalling assets. 4 Bouv. Inst. n. 3788; 1 Story, Eq. Jur. Sec. 633
Amb. 91; 8 Ves. 389; 9 Ves. 209.
2. Marshalling of assets respects two different funds, and two
different sets of parties, where one set can resort to either fund, the
other only to one. It is grounded on obvious equity. It does no prejudice to
anybody, and it effectuates the testator's intent. It takes place in favor
of simple contract creditors, and of legatees, devisees and heirs, and in a
few other cases, but not in favor of the next of kin. 4 Bro. C. C. 411; 1 P.
Wms. 680.
3. The cases in which a court of equity marshals real and personal
assets for the payment of simple contract debts and legacies, may be classed
as follows: 1. Where there are specialty and simple contract debts and
legacies and lands left to descend. In this case if the specialty creditors
take a satisfaction for their debts out of the personal estate, the simple
contract creditors first, and then the legatees, shall stand in the place of
the specialty creditors, for obtaining satisfaction out of the lands, to the
amount of so much as was received by the specialty creditors out of the
personal estate.
4.-2. Where there are specialty and simple contract debts, and lands
are specifically devised. In this case if the creditors take a satisfaction
for their debts out of the personal estate, the simple contract creditors
shall stand in the place of the specialty creditors for obtaining a
satisfaction out of the lands to the amount of so much as was received by
the specialty creditors out of the personal estate, but then there can be no
relief for the legatees, because there is as much equity to support the,
specific devise of the lands, as to support the bequest of the legatees.
5.-3. Where the debts are charged upon the lands. Here the legatees
shall have the personal estate towards their satisfaction, and if the
creditors take it in payment or towards the discharge of their debts, the
legatees shall stand in their place pro tanto to have a discharge out of the
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lands.
6.-4. When simple contract debts and legacies are both charged on the
land. In this case the land shall be sold and all paid equally. 1 Madd. Ch.
Pr. 617.
MARSHALSEA, English law. The name of a prison belonging to the court of the
king's bench.
MARTIAL LAW. Vide Law Martial.
MARYLAND. One of the original states of the United States of America. The
province of Maryland was included in the patent of the Southern or Virginia
company; and upon the dissolution of that company, it reverted to the crown.
Charles the First, on the 20th of June, 1632, granted it by patent to Lord
Baltimore. Under this charter Maryland continued to be governed, with some
short intervals of interruption, down to the period of the American
Revolution, by the successors of the original proprietor. 1 Chalmer's
Annals, 203.
2. Upon the revolution of 1688, the government of Maryland was seised
into the hands of the crown, and was not again restored to the proprietary
until 1716; from that period no alteration occurred until the American
Revolution. Bacon's Laws of Maryland, 1692, 1716.
3. The original constitution of this state was adopted on the 14th day
of August, 1776. The present constitution was adopted in 1851.
4. The powers of the government are distributed into the legislative,
the executive, and the judicial.
5.-1st. The legislature shall consist of two distinct branches, a
senate and a house of delegates, which shall be styled "The general assembly
of Maryland." Art. III. s. 1.
6.-2. The general assembly shall meet on the first Wednesday of
January, 1852, on the same day, in the year 1853, and on the same day, 1854,
and on the same day in every second year thereafter, and at no other time,
unless convened by the proclamation of the governor. Art. III. s. 7.
7.-3. The senate will be considered with reference to the
qualification of the electors; the qualification of the members; the length
of time for which they are elected; and the time of their election. 1. Every
free white male person of twenty-one years of age or upwards, who shall have
been one year next preceding the election a resident of the state, and for
six months a resident of the city of Baltimore, or of any county in which he
may offer to vote, and being at the time of the election, a citizen of the
United States, shall be entitled to vote in the ward or election district in
which he resides, in all elections hereafter to be held; an& at all such
elections the vote shall be taken by ballot. And in case any county or city
shall be so divided as to form portions of different electoral districts for
the election of congressmen, senator, delegate or other officer or officers,
then to entitle a person to vote for such officer, he must have been a
resident of that part of the county or city which shall form a part of the
electoral district in which he offers to vote for six months next preceding
the election: but a person who shall have acquired a residence in such
county or city, entitling him to vote at any such election, shall be
entitled to vote in the election district from which he remoted, until he
shall have acquired a residence in the part of the county or city to which
he has removed. Art. I. s. 1. 2. No person shall be eligible as a senator
who at the time of his election is not a citizen of the United States, and
who bas not resided at least three years next preceding the day of his
election, in this state, and the last year thereof in the county or city
which he may be chosen to represent, if such county or city shall have been
so long established, and if not, then in the county from which, in whole or
in part, the same may have been formed; nor shall any person be eligible as
a senator unless he shall have attained the age of twenty-five years. No
member of congress, or person holding any civil or military office under the
United States, shall be eligible as a senator; and if any person, after his
election as a senator, be elected to congress, or be appointed to any
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office, civil or military, under the government of the United States, his
acceptance thereof shall vacate his seat. No minister or preacher of the
gospel of any denomination, and no person holding any civil office of profit
or trust under the state, except justices of the peace, shall be eligible as
senator. Art. III. ss. 9, 10, 11. 3. Every county of the state, and the city
of Baltimore, shall be entitled to elect one senator, who shall serve for
four years from the day of their election. The first election shall take
place on the first Wednesday of November, 1851, and an election for one-half
the senators, as nearly as practicable, shall be held on the same day every
second year thereafter. Art. III. 2, 3, 4, 5.
8.-4. The house of delegates will be treated of in the same manner
which has been observed in considering the senate. 1. The electors are
qualified in the same manner as the electors of the senate. 2. No person
shall be a delegate who shall not have attained the age of twenty-one years;
the other qualifications are the same as those for a senator. 3. The whole
number of delegates shall never exceed eighty, nor be less than sixty-five,
and shall be apportioned among the several counties according to the
population of each, the city of Baltimore to have four more delegates than
the most populous county; no county to have less than two delegates, the
apportionment to be made after the returns of the national census in 1860
are published, and in like manner after each subsequent census. They are to
serve two years from the day of their election, which takes place on the
same day as that for senators.
9.-1. The executive power of the state shall be vested in a governor,
whose term of office shall commence on the second Wednesday of January next
ensuing his election, and continue for four years, and until his successor
shall have qualified.
10.-2. The first election for governor under this constitution shall
be held on the first Wednesday of November, in the year eighteen hundred and
fifty-three, and on the same day and month in every fourth year thereafter,
at the places of voting for delegates to the general assembly, and every
person qualified to vote for delegates shall be qualified, and entitled to
vote for governor; the election to be held in the same manner as the
election of delegates, and the returns thereof, under seal, to be addressed
to the speaker of the house of delegates, and enclosed and transmitted to
the secretary of state, and delivered to the said speaker at the
commencement of the session of the legislature next ensuing said election.
11.-3. The speaker of the house of delegates shall then open the said
returns in the presence of both houses, and the person having the highest
number of votes, and being constitutionally eligible, shall be the governor,
and shall qualify in the manner herein prescribed, on the second Wednesday
of January next ensuing his election, or as soon thereafter as may be
practicable.
12.-4. If two or more persons shall have the highest and an equal
number of votes, one of them shall be chosen governor by the senate and
house of delegates; and all questions in relation to the eligibility of
governor, and to the returns of said election, and to the number and
legality of votes therein given, shall be determined by the house of
delegates. And if the person or persons having the highest number of votes
be ineligible, the governor shall be chosen by the senate and house of
delegates. Every election of governor, by the legislature, shall be
determined by a joint majority of the senate and house of delegates, and the
vote shall be taken viva voce. But if two or more persons shall have the
highest and an equal number of votes, then a second vote shall be taken,
which shall be confined to the persons having an equal number; and if the
votes should again be equal, then the election of governor shall be
determined by lot between those who shall have the highest and an equal
number on the first vote.
13.-5. The state shall be divided into three districts. St. Mary's,
Charles, Calvert, Prince George's, Anne Arundle, Montgomery, and Howard
counties, and the city of Baltimore to be the first; the eight counties of
the Eastern shore to be the second; and Baltimore, Harford, Frederick,
Washington, Allegany, and Carroll counties, to be the third. The governor,
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elected from the third district in October last, shall continue in office
during the term for which he was elected. The governor shall be taken from
the first district, at the first election of governor under this
constitution; from the second district at the second election, and from the
third district at the third election, and in like manner, afterwards, from
each district, in regular succession.
14.-6. A person to be eligible to the office of governor, must have
attained the age of thirty years, and been for five years a citizen of the
United States, and for five years next preceding his election a resident of
the state, and for three years a resident of the district from which he was
elected.
15.-7. In case of the death or resignation of the governor, or of his
removal from the state, the general assembly, if in session, or if not, at
their next session, shall elect some other qualified resident of the same
district, to be the governor for the residue of the term for which the said
governor had been elected.
16.-8. In case of any vacancy in the office of governor during the
recess of the legislature, the president of the senate shall discharge the
duties of said office till a governor is elected as herein provided for; and
in case of the death or resignation of said president, or of his removal
from the state, or of his refusal to serve, then the duties of said office
shall, in like manner, and for the same interval, devolve upon the speaker
of the house of delegates, and the legislature may provide by law for the
case of impeachment or inability of the governor, and declare what person
shall perform the executive duties during such impeachment or inability; and
for any vacancy in said office, not herein provided for, provision may be
made by law, and if such vacancy should occur without such provision being
made, the legislature shall be convened by the secretary of state for the
purpose of filling said vacancy.
17.-9. The governor shall be commander-in-chief of the land and naval
forces of the state, and may call out the militia to repel invasions,
suppress insurrections, and enforce the execution of the laws; but shall not
take the command in person without the consent of the legislature.
18.-10. He shall take care that the laws be faithfully executed.
19.-11. He shall nominate, and by and with the advice and consent of
the senate, appoint all civil and military officers of the state, whose
appointment or election is not otherwise herein provided for, unless a
different mode of appointment be prescribed by the law creating the office.
20.-12. In case of any vacancy during the recess of the senate, in any
office which the governor has power to fill, he shall appoint some suitable
person to said office, whose commission shall continue in force till the end
of the next session of the legislature, or till some other person is
appointed to the same office, whichever shall first occur, and the
nomination of the person thus appointed during the recess, or of some other
person in his place, shall be made to the senate within thirty days after
the next meeting of the legislature.
21.-13. No person, after being rejected by the senate, shall be again
nominated for the same office at the same session, unless at the request of
the senate; or be appointed to the same office during the recess of the
legislature.
22.-14. All civil officers appointed be the governor and senate shall
be nominated to the senate within fifty days from the commencement of each
regular session of the legislature; and their term of office shall commence
on the first Monday of May next ensuing their appointment, and continue for
two years (unless sooner removed from office) and until their successors,
respectively, qualify according to law.
23.-15. The governor may suspend or arrest any military officer of the
state for disobedience of orders, or other military offence, and may remove
him in pursuance of the sentence of a court-martial; and may remove for
incompetency or misconduct, all civil officers, who receive appointments
from the executive for a term not succeeding two years.
24.-16. The governor may convene the legislature, or the senate alone,
on extraordinary occasions; and whenever, from the presence of an enemy or
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from any other cause, the seat of government shall become an unsafe place
for the meeting of the legislature, he may direct their sessions to be held
at some other convenient place.
25.-17. It shall be the duty of the governor semi-annually, and
oftener if he deem it expedient, to examine the bankbook, account books, and
official proceedings of the treasurer and comptroller of the state.
26.-18. He shall, from time to time, inform the legislature of the
condition of the state, and recommend to their consideration such measures
as he may judge necessary and expedient.
27.-19. He shall have power to grant reprieves and pardons, except in
cases of impeachment, and in cases in which he is prohibited by other
articles of this constitution, and to remit fines and forfeitures for
offences against the state; but shall not remit the principal or interest of
any debt due to the state, except in cases of fines and forfeitures; and
before granting a nolle prosequi, or pardon, he shall give notice, in one or
more newspapers, of the application made for it, and of the day on or after
which his decision will be given; and in every case in which he exercises
this power, he shall report to either branch of the legislature. Whenever
required, the petitions, recommendations and reasons which influence his
decision.
28.-20. The governor shall reside at the seat of government, and shall
receive for his services an annual salary of thirty-six hundred dollars.
29.-21. When the public interest requires it, he shall have power to
employ counsel, who shall be entitled to such compensation as the
legislature may allow in each case after the services of such counsel shall
have been performed.
29.-22. A secretary of state shall be appointed by the governor, by
and with the advice and consent of the senate, who shall continue in office,
unless sooner removed by the governor, till the end of the official term of
the governor from whom he received his appointment, and shall receive an
annual salary of one thousand dollars.
30.-23. He shall carefully keep and preserve a record of all official
acts an proceedings (which may, at all times, be inspected by a committee of
either branch of the legislature,) and shall perform such other duties as
may be prescribed by law or as may properly belong to his office.
31.-3d. The judicial power of this state shall be vested in a court of
appeals, in circuit courts, in such courts for the city of Baltimore as may
be hereinafter prescribed, and in justices of the peace.
32.-2. The court of appeals shall have appellate jurisdiction only,
which shall be co-extensive with the limits of the state. It shall consist
of a chief justice and three associate justices, any three of whom shall
form a quorum, whose judgment shall be final and conclusive in all cases of
appeals; and who shall have the jurisdiction which the present court of
appeals of this state now has, and such other appellate jurisdiction as
hereafter may be provided for by law. And in every case decided, an opinion,
in writing, shall be filed, and provision shall be made, by law, for
publishing reports of cases argued and determined in the said court. The
governor, for the time being, by and with the advice and consent of the
senate, shall designate the chief justice, and the court of appeals shall
hold its sessions at the city of Annapolis, on the first Monday of June, and
the first Monday of December, in each and every year.
33.-3. The state shall be divided into four judicial districts:
Allegany, Washington, Frederick, Carroll, Baltimore, and Harford counties,
shall compose the first; Montgomery, Howard, Anne Arundel, Calvert, St.
Mary's, Charles and Prince George's, the second; Baltimore city, the third;
and Cecil, Kent, Queen Anne's, Talbot, Caroline, Dorchester, Somerset, and
Worcester, shall compose the fourth district. And one person from among
those learned in the law having been admitted to practice in this this state
at least, five years, and above the age of thirty years at the time of his
election, and a resident of the judicial district, shall be elected from
each of said districts by the legal and qualified voters therein, as a judge
of the said court of appeals, who shall hold his office for the term of ten
years from the time of his election, or until he shall have attained the age
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of seventy years, whichever may first happen, and be reeligible thereto
until he shall have attained the age of seventy years, and not after,
subject to removal for incompetency, willful neglect of duty, or misbehaviour
in office, on conviction in a court of law, or by the governor upon the
address of the general assembly, two-thirds of the members of each house
concurring in such address; and the salary of each of the judges of the
court of appeals shall be two thousand five hundred dollars annually, and
shall not be increased or diminished during their continuance in office; and
no fees or perquisites of any kind, shall be allowed by law to any of the
said judges.
34.-4. No judge of the court of appeals shall sit in any case wherein
he may be interested, or where either of the parties may be connected with
him by affinity or consanguinity within such degrees as may be prescribed by
law, or when he shall have been of counsel in said case; when the court of
appeals, or any of its members shall be thus disqualified to bear and
determine any case or cases in said court, so that by reason thereof no
judgment can be rendered in said court, the same shall be certified to the
governor of the state, who shall immediately commission the requisite number
of persons learned in the law for the trial and determination of said case
or cases.
35.-5. All judges of the court of appeals, of the circuit courts, and
of the courts for the city of Baltimore, shall, by virtue of their offices,
be conservator's of the peace throughout the state.
36.-6. All public commissions and grants shall run thus: "The State of
Maryland," &c., and shall be signed by the governor, with the seal of the
state annexed; all writs and process shall run in the same style, and be
tested, sealed and signed as usual; and all indictments shall conclude
"against the peace, government and dignity of the state."
37.-7. The state shall be divided into eight judicial circuits, in
manner and form following, to wit; St. Mary's, Charles, and Prince George's
counties shall be the first: Anne, Arundel, Howard, Calvert and Montgomery
counties shall be the second; Frederick and Carroll counties shall be the
third; Washington and Allegany counties shall be the fourth; Baltimore city
shall be the fifth; Baltimore, Harford and Cecil counties shall be the
sixth; Kent, Queen Anne's, Talbot and Caroline counties shall be the
seventh; and Dorchester, Somerset and Worcester counties shall be the
eighth; and there shall be elected, as hereinafter directed, for each of the
said judicial circuits, except the fifth, one person from among those
learned in the law, having been admitted to practice in this state, and who
shall have been a citizen of this state at least five years, and above the
age of thirty years at the time of his election, and a resident of the
judicial circuit, to be judge thereof; the said judges shall be styled
circuit judges, and shall respectively hold a term of their courts at least
twice in each year, or oftener if required by law, in each county composing
their respective circuits; and the said courts shall be called circuit
courts for the county in which they may be held, and shall have and exercise
in the several counties of this state, all the power, authority and
jurisdiction which the county courts of this state now have and exercise, or
which may hereafter be prescribed by law, and the said judges in their
respective circuits, shall have and exercise all the power, authority and
jurisdiction of the present court of chancery of Maryland; provided,
nevertheless, that Baltimore county court may hold its sittings within the
limits of the city of Baltimore, until provision shall be made by law for
the location of a county seat within the limits of the said county proper,
and the erection of a court house and all other appropriate buildings, for
the convenient administration of justice in said court.
38.-8. The judges of the several judicial circuits shall be citizens
of the United States, and shall have resided five years in this state, and
two years in the judicial circuit for which they may be respectively
elected, next before the time of their election, and shall reside therein
while they continue to act as judges; they shall be taken from among those
who, having the other qualifications herein prescribed, are most
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distinguished for integrity, wisdom and sound legal knowledge, and shall be
elected by the qualified voters of the said circuits, and shall hold their
offices for the term of ten years, removable for misbehaviour, on conviction
in a court of law or by the governor, upon the address of the general
assembly, provided that two-thirds of the members of each house shall concur
in such address, and the said judges shall each receive a salary of two
thousand dollars a year, and the same shall not be increased or diminished
during the time of their continuance in office; and no judge of any court in
this state, shall receive any perquisite, fee, commission or reward, in
addition thereto, for the performance of any judicial duty.
39.-9. There shall be established for the city of Baltimore one court
of law, to be styled "the court of common pleas," which shall have civil
jurisdiction in all suits where the debt or damage claimed shall be over one
hundred dollars, and shall not exceed five hundred dollars; and shall, also,
have jurisdiction in all cases of appeal from the judgment of justices of
the peace in the said city, and shall have jurisdiction in all applications
for the benefit of the insolvent laws of this state, and the supervision and
control of the trustees thereof.
40.-10. There shall also be established, for the city of Baltimore,
another court of law, to be styled the superior court of Baltimore city,
which shall have jurisdiction over all suits where the debt or damage
claimed shall exceed the sum of five hundred dollars, and in case any
plaintiff or plaintiffs shall recover less than the sum or value of five
hundred dollars, he or they shall be allowed or adjudged to pay costs in the
discretion of the court. The said court shall also have jurisdiction as a
court of equity within the limits of the said city, and in all other civil
cases which have not been heretofore assigned to the court of common pleas.
41.-11. Each of the said two courts shall consist of one judge, who
shall be elected by the legal and qualified voters of the said city, and
shall bold his office for the term of ten years, subject to the provisions
of this constitution, with regard to the election and qualification of
judges and their removal from office, and the salary of each of the said
judges shall be twenty-five hundred dollars a year; and the legislature
shall, wherever it may think the same proper and expedient, provide, by law,
another court for the city of Baltimore, to consist of one judge to be
elected by the qualified voters of the said city, who shall be subject to
the same constitutional provisions, hold his office for the same term of
years, and receive the same compensation as the judge of the court of common
pleas of the said city, and the said court shall have such jurisdiction and
powers as may be prescribed by law.
42.-12. There shall also be a criminal court for the city of
Baltimore, to be styled the criminal court of Baltimore, which shall consist
of one judge, who shall also be elected by the legal and qualified voters of
the said city, and who shall have and exercise all the jurisdiction now
exercised by Baltimore city court, and the said judge shall receive a salary
of two thousand dollars a year, and shall be subject, to the provisions of
this constitution with regard to the election and qualifications of judges,
term of office, and removal therefrom.
43.-13. The qualified voters of the city of Baltimore, and of the
several counties of the state, shall, on the first, Wednesday of November,
eighteen hundred and fifty-one, and on the same day of the same month in,
every fourth year forever thereafter, elect three men to be judges of the
orphans' court of said city and counties respectively, who shall be citizens
of the state of Maryland, and citizens of the city or county for which they
may be severally elected at the time of their election. They shall have all
the powers now vested in the orphans' courts of this state, subject to such
changes therein as the legislature may prescribe, and each of said judges
shall be paid at a per diem rate, for the time they are in session, to be
fixed by the legislature, and paid by the said counties and city
respectively.
44.-14. The legislature, at its first session after the adoption of
this constitution, shall fix the number of justices of the peace and
constables for each ward of the city of Baltimore, and for each election
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district in the several counties, who shall be elected by the legal and
qualified voters thereof respectively, at the next general election for
delegates thereafter, and shall hold their offices for two years from the
time of their election, and until their successors in office are elected and
qualified; and the legislature may, from time to time, increase or diminish
the number of justices of the peace and constables to be elected in the
several wards and election districts, as the wants and interests of the
people may require. They shall be, by virtue of their offices, conservators
of the peace in the said counties and city respectively, and shall have such
duties and compensation as now exist, or may be provided for by law. In the
event of a vacancy in the office of a justice of the peace, the governor
shall appoint a person to serve as justice of the peace, until the next
regular election of said officers, and in case of a vacancy in the office of
constable, the county commissioners of the county, in which a vacancy may
occur, or the mayor and city council of Baltimore, as the case may be, shall
appoint a person to serve as constable until the next regular election
thereafter for said officers. An appeal shall lie in all civil cases from
the judgment of a justice of the peace to the circuit court, or, to the
court of common pleas of Baltimore city, as the case way be, and on all such
appeals, either party shall be entitled to a trial by jury, according to the
laws now existing, or which way be hereafter enacted. And the mayor and city
council may provide, by ordinance, from time to time, for the creation and
government of such temporary additional police, as they may deem necessary
to preserve the public peace.
45.-15. No judge shall sit in any case wherein he may be interested,
or where either of the parties may be connected with him by affinity or
consanguinity, within such degrees as may be prescribed by law, or where he
shall have been of counsel in the case and whenever any of the judges of the
circuit courts, or of the courts for Baltimore city, shall be thus
disqualified, or whenever, by reason of sickness, or any other cause, the
said judges, or any of them, may be unable to sit in any cause, the parties
may, by consent, appoint a proper person to try the said cause, or the
judges, or any of them, shall do so when directed by law.
46.-16. The present chancellor and the register in chancery, and, in
the event of any vacancy in their respective offices, their successors in
office respectively, who are to be appointed as at present, by the governor
and senate, shall continue in office, with the powers and compensation as at
present established, until the expiration of two years after the adoption of
this constitution by the people, and until the, end of the session of the
legislature next thereafter, after which the said offices of chancellor and
register shall be abolished. The legislature shall, in the mean time,
provide by law for the recording, safe-keeping, or other disposition, of the
records, decrees and other proceedings of the court of chancery, and for the
copying and attestation thereof, and for the custody and use of the great
seal of the state, when required, after the expiration of the said two
years, and for transmitting to the said counties, and to the city of
Baltimore, all the cases and proceedings in said court then undisposed of
and unfinished, in such manner, and under such regulations as may be deemed
necessary and proper: Provided, that no new business shall originate in the
said court, nor shall any cause be removed to the same from any other court,
from and after the ratification of this constitution.
47.-17. The first election of judges, clerks, registers of wills, and
all other officers, whose election by the people is provided for in this
article of the constitution, except justices of the peace and constables,
shall take place throughout the state on the first Wednesday of November
next after the ratification of this constitution by the people.
48.-18. In case of the death, resignation, removal, or other
disqualification of a judge of any of the courts of law, the governor, by
and with the advice and consent of the senate, shall thereupon appoint a
person, duly qualified, to fill said office until the next general election
for delegates thereafter; at which time an election shall be held as
hereinbefore prescribed, for a judge, who shall hold the said office for ten
years, according to the provisions of this constitution.
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49.-19. In case of the death, resignation, removal, or other
disqualification of the judge of an orphans' court, the vacancy shall be
filled by the appointment of the governor, by and with the advice and
consent of the senate.
50.-20. Whenever lands lie partly in one county, and partly in another
or partly in a county and partly in the city of Baltimore, or whenever
persons proper to be made defendants to proceedings in chancery, reside some
in one county and some in another, that court shall have jurisdiction in
which proceedings shall have been first commenced, subject to such rules,
regulations and alterations as may be prescribed by law.
51.-21. In all suits or actions at law, issues from the orphans' court
or from any court sitting in equity, in petitions for freedom, and in all
presentments and indictments now pending, or which may be pending at the
time of the adoption of this constitution by the people, or which may
hereafter be instituted in any of the courts of law of this state, having
jurisdiction thereof, the judge or judges thereof, upon suggestion in
writing, if made by the state's attorney, or the prosecutor for the state,
or upon suggestion in writing, supported by affidavit, made by any of the
parties thereto, or other proper evidence, that a fair and impartial trial
cannot be had in the court where such suit or action at law, issues or
petitions, or presentment and indictment is depending, shall order and
direct the record of proceedings in such suit or action, issues or
petitions, presentment or indictment, to be transmitted to the court of any
adjoining county; provided, that the removal in all civil causes be confined
to an adjoining county within the judicial circuit, except as to the city of
Baltimore, where the removal may be to an adjoining county, for trial, which
court shall hear and determine the same in like manner as if such suit or
action, issues or petitions, presentment or indictment, had been originally
instituted therein; and provided also, that such suggestion shall be made as
aforesaid, before or during the term in which the issue or issues may be
joined in said suit or action, issues or petition, presentment or
indictment, and that such further remedy in the premises may be provided by
law, as the legislature shall from time to time direct and enact.
52.-22. All election of judges, and other officers provided for by
this constitution, shall be certified, and the returns made by the clerks of
the respective counties to the governor, who shall issue commissions to the
different persons for the offices to which they shall have been respectively
elected; and in all such elections, the person having the greatest number of
votes, shall be declared to be elected.
53.-23. If, in any case of election for judges, clerks of the courts
of law and registers of wills, the opposing candidates shall have an equal
number of votes, it shall be the duty of the governor to order a new
election; and in case of any contested election, the governor shall send the
returns to the house of delegates, who shall judge of the election and
qualification of the candidates at such election.
MASCULINE. That which belongs to the male sex.
2. The masculine sometimes includes the feminine, vide an example under
the article Man, and see also the articles Gender, Worthiest of blood; Poth.
Intr. au titre 16, des Testamens et Donations Testamentaires, n. 170; Ayl,
Pand. 57; 4 C. & P. 216; S. C. 19 E. C. L. R. 551 3 Fred. Code, pr. 1, b. 1,
t. 4, s. 3; 3 Brev. R. 9.
MATERNAL PROPERTY. That which comes from the mother of the party, and other
ascendants of the maternal stock. Domat, Liv. Prel. tit. 3, s. 2, n. 12.
MATERNITY. The state or condition of a mother.
2. It is either legitimate or natural. The former is the condition of
the mother who has given birth to legitimate children, while the latter is
the condition of her who has given birth to illegitimate children. Maternity
is always certain, while the paternity (q.v.) is only presumed.
MATERTERA. Maternal aunt; the sister of one's mother. Inst. 3, 4, 3; Dig.
38, 10, 10, 14.
MATHEMATICAL EVIDENCE. That evidence which is established by a
demonstration. It is used in contradistinction to moral evidence. (q.v.)
MATRICULA, civil law. A register in which are inscribed the names of persons
who become members of an association or society. Dig. 50, 3, 1. In the
ancient church there was matricula clericorum, which was a catalogue of the
officiating clergy; and matricula pauperum, a list of the poor to be
relieved; hence to be entered in the university is to be matriculated.
MATRIMONIAL CAUSES. In the English ecclesiastical courts there are five
kinds of causes which are classed under this head. 1. Causes for a malicious
jactitation. 2. Suits for nullity of marriage, on account of fraud, incest,
or other bar to the marriage. 2 Hagg. Cons. Rep. 423. 3. Suits for
restitution of conjugal rights. 4. Suits for divorces on account of cruelty
or adultery, or causes which have arisen since the marriage. 5. Suits for
alimony.
MATRIMONIUM. By this word is understood the inheritance descending to a man,
ex parti matris. It is but little used.
2. Among the Romans this word was employed to signify marriage; and it
was so called because this conjunction was made with the design that the
wife should become a mother. Inst. 1, 9, 1.
MATRINA. A godmother.
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MATTER IN PAYS. Literally, matter in the country; matter of fact, as
distinguished from matter of law, or matter of record. Steph. Pl. 197. Vide
Country.
MATTER IN DEED. Matter in deed is such matter as may be proved or
established by a deed or specialty. In another sense it signifies matter of
fact, in contradistinction to matter of law. Co. Litt. 320; Steph. Pl. 197.
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1728 cubic inches = 1 cubic foot
27 cubic feet = 1 cubic yard.
2d. Measures of capacity for all liquids, and for all goods, not
liquid, except such as are comprised in the next division.
4 gills = 1 pint = 34 2/3 cubic inches nearly.
2 pints = 1 quart = 691/2 " "
4 quarts = 1 gallon = 277 1/4 " "
2 gallons = 1 peck = 554 1/2 " "
8 gallons= 1 bushel = 2218 1/2 " "
8 bushels = 1 quarter = 10 1/4 cubic feet "
5 quarters = 1 load = 51 1/2 " "
The last four denominations are used only for goods, not liquids. For
liquids, several denominations have heretofore been adopted, namely, for
beer, the firkin of 9 gallons, the kilderkin of 18, the barrel of 36, the
hogshead of 54; and the butt of 108 gallons. For wine or spirits there are
the anker, runlet, tierce, hogshead, puncheon, pipe, butt, and tun; these
are, however, rather the names of the casks, in which the commodities are
imported, than as express any definite number of gallons. It is the practice
to gauge all such vessels, and to charge them according to their actual
contents.
3d. Measures of capacity, for coal, lime, potatoes, fruit, and other
commodities, sold by heaped measure.
2 gallons = 1 peck = 704 cubic in. nearly.
8 gallons = 1 bushel = 28151/2 " "
3 bushels = 1 sack = 41 cubic feet "
12 sacks= 1 chaldron = 58 2/3 " "
8.-4. MEASURES OF WEIGHTS. See art. Weights.
9.-5., ANGULAR MEASURE; or, DIVISION OF THE CIRCLE.
60 seconds = 1 minute
60 minutes = 1 degree
30 degrees = 1 sign
90 degrees = 1 quadrant
360 degrees, or 12 signs = 1 circumference.
Formerly the subdivisions were carried on by sities; thus, the
second was divided into 60 thirds, the third into sixty fourths,
&c. At present, the second is more generally divided decimally into
tens, hundreds, &c. The degree is frequently so divided.
or 10.-6. MEASURE OF TIME.
60 seconds = 1 minute
60 minutes = 1 hour
24 hours = 1 day
7 days = 1 week
28 days, or 4 weeks = 1 lunar month
28, 29, 30, or 31 days = 1 calendar month
12 calendar months = 1 year
365 days = 1 common year
366 day = 1 leap year.
The second of time is subdivided like that of angular measure.
FRENCH MEASURES.
11. As the French system of weights and measures is the most scientific
plan known, and as the commercial connexions of the United States with
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France are daily increasing, it has been thought proper here to give a short
account of that system.
12. The fundamental, invariable, and standard measure, by which all
weights and measures are formed, is called the metre, a word derived from
the Greek, which signifies measure. It is a lineal measure, and is equal to
3 feet, 0 inches, 44/1000, Paris measure, or 3 feet, 3 inches, 370/1000
English. This unit is divided into ten parts; each tenth, into ten
hundredths; each hundredth, into ten thousandths, &c. These divisions, as
well as those of all other measures, are infinite. As the standard is to be
invariable, something has been sought, from which to make it, which is not
variable or subject to any change. The fundamental base of the metre is the
quarter of the terrestrial meridian, or the distance from the pole to the
equator, which has been divided into ten millions of equal parts, one of
which is the length of the metre. All the other measures are formed from the
metre, as follows:
2. MEASURE OF CAPACITY.
13. The litre. This is the decimetre; or one-tenth part of the cubic
metre; that is, if a vase is made of a cubic form, of a decimetre every way,
it would be of the capacity of a litre. This is divided by tenths, as the
metre. The measures which amount. to more than a single, litre, are counted
by tens hundreds, thousands, &c., of litres.
3. MEASURES OF WEIGHTS.
14. The gramme. This is the weight of a cubic centimetre of distilled
water, at the temperature of zero; that is, if a vase be made of a cubic
form, of a hundredth part of a metre every way, and it be filled with
distilled water, the weight of that water will be that of the gramme.
4. MEASURES OF SURFACES.
15. The arc, used in surveying. This is a square, the sides of which are
of the length of ten metres, or what is equal to one hundred square metres.
Its divisions are the same as in the preceding measures.
5. MEASURES OF SOLIDITY.
16. The stere, used in measuring firewood. It is a cubic metre. Its
subdivisions are similar to the preceding. The term is used only for
measuring firewood. For the measure of other things, the term cube metre, or
cubic metre is used, or the tenth, hundredth, &c., of such a cube.
6. MONEY.
17. The franc. It weighs five grammes. it is made of nine-tenths of
silver, and one-tenth of copper. Its tenth part is called a decime, and its
hundredth part a centime.
18. One measure being thus made the standard of all the rest, they must
be all equally invariable; but, in order to make this certainty perfectly
sure, the following precautions have been adopted. As the temperature was
found to have an influence on bodies, the term zero, or melting ice, has
been selected in making the models or standard of the metre. Distilled water
has been chosen to make the standard of the gramme, as being purer, and less
encumbered with foreign matter than common water. The temperature having
also an influence on a determinate volume of water, that with which the
experiments were made, was of the temperature of zero, or melting ice. The
air, more or less charged with humidity, causes the weight of bodies to
vary, the models which represent the weight of the gramme, have, therefore,
been taken in a vacuum.
19. It has already been stated, that the divisions of these measures are
all uniform, namely by tens, or decimal fractions, they may therefore be
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written as such. Instead of writing,
1 metre and 1 tenth of a metre, we may write, 1 m. 1.
2 metre and 8 tenths, 2 m. 8.
10 metre and 4 hundredths, 10 m. 04.
7 litres, 1 tenth, and 2 hundredths, 7 lit. 12, &c.
20. Names have been given to, each of these divisions of the principal
unit but these names always indicate the value of the fraction, and the unit
from which it is derived. To the name of the unit have been prefixed the
particles deci, for tenth, centi, for hundredth, and milli, for thousandth.
They are thus expressed, a decimetre, a decilitre, a decigramme, a
decistere, a deciare, a centimetre, a centilitre, a centigramme, &c. The
facility with which the divisions of the unit are reduced to the same
expression, is very apparent; this cannot be done with any other kind of
measures.
21. As it may sometimes be necessary to express great quantities of
units, collections have been made of them in tens, hundreds, thousands, tens
of thousands, &c., to which names, derived from the Greek, have been given;
namely, deca, for tens hecto, for hundreds; kilo, for thousands and myria,
for tens of thousands; they are thus expressed; a decametre, a decalitre,
&c.; a hectometre, a hectogramme, &c.; a kilometre, a kilogramme, &c.
22. The following table will facilitate the reduction of these weights
and measures into our own.
The Metre, is 3.28 feet, or 39.871 in.
Are, is 1076.441 square feet.
Litre, is 61.028 cubic inch
Stere, is 35.317 cubic feet.
Gramme, is 15.4441 grains troy, or 5.6481 drams, averdupois.
MEASURE OF DAMAGES, prac. Those principles or rules of law which control a
jury in adjusting or proportioning the damages, in certain cases. 1 Bouv.
Inst. n. 636.
MEAN. This word is sometimes used for mesne. (q.v.)
MEASON-DUE. A corruption of Maison de Dieu. (q.v.)
MEDIATE, POWERS. Those incident to primary powers, given by a principal to
his agent. For example, the general authority given to collect, receive and
pay debts due by or to the principal is a primary power. In order to
accomplish this it is frequently required to settle accounts, adjust
disputed claims, resist those which are unjust, and answer and defend suits;
these subordinate powers are sometimes called mediate powers. Story, Ag.
Sec. 58. See Primary powers, and 1 Camp. R. 43, note 4 Camp. R. 163; 6 S. &
R. 149.
MEDIATION. The act of some mutual friend of two contending parties, who
brings them to agree, compromise or settle their disputes. Vattel, Droit des
Gens, liv. 2, eh. 18, Sec. 328.
MEDIATOR. One who interposes between two contending parties, with their
consent, for the purpose of assisting them in settling their differences.
Sometimes this term is applied to an officer who is appointed by a sovereign
nation to promote the settlement of disputes between two other nations. Vide
Minister; Mediator.
MEDICAL JURISPRUDENCE. That science which applies the principles and
practice of the different branches of medicine to the elucidation of
doubtful questions in courts of justice. By some authors, it is used in a
more extensive sense and also comprehends Medical Police, or those medical
precepts which may prove useful to the legislature or the magistracy. Some
authors, instead of using the phrase medical jurisprudence, employ, to
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convey the same idea, those of legal medicine, forensic medicine, or, as the
Germans have it, state medicine.
2. The best American writers on this subject are Doctors T. R. Beck and
J. B. Beck, Elements of Medical Jurisprudence; Doctor Thomas Cooper; Doctor
James S. Stringham, who was the first individual to deliver a course of
lectures on medical jurisprudence, in this country; Doctor Charles Caldwell.
Among the British writers may be enumerated Doctor John Gordon Smith; Doctor
Male; Doctor Paris and Mr. Fonblanque, who published a joint work; Mr.
Chitty, and Dr. Ryan. The French writers are numerous; Briand, Biessy,
Esquirol, Georget, Falret, Trebuchet, Mare, and others, have written
treatises or published papers on this subject; the learned Fodere published
a work entitled "Les Lois eclairees par les sciences physiques ou Traite de
Medecine Legale et d'hygiene publique;" the "Annale d'hygiene et de Medecine
Legale," is one of the most valued works on this subject. Among the Germans
may be found Rose's Manual on Medico Legal Dissection; Metzger's Principles
of Legal Medicine, and others. The reader is referred for a list of authors
and their works on Medical Jurisprudence, to Dupin, Profession d'Avocat,
tom. ii., p. 343, art. 1617 to 1636, bis. For a history of the rise and
progress of Medical Jurisprudence, see Traill, Med. Jur. 13.
MEDICINE CHEST. A box containing an assortment of medicines.
2. The act of congress for the government and regulation of seamen in
the merchant service, sect. 8, 1 Story's L. U. S. 106, directs that every
ship or vessel, belonging to a citizen or citizens of the United States, of
the burthen of one hundred and fifty tons or upwards, navigated by ten or
more persons in the whole, and bound on a voyage without the limits of the
United States, shall be provided with a chest of medicines, put up by some
apothecary of known reputation, and accompanied by directions for
administering the same; and the said medicines shall be examined by the same
or some other apothecary, once, at least, in every year, and supplied with
fresh medicines in the place of such as shall have been used or spoiled; and
in default of having such medicine chest so provided, and kept fit for use,
the master or commander of such ship or vessel shall provide and pay for all
such advice, medicine, or attendance of physicians, as any of the crew shall
stand in need of in case of sickness, at every port or place where the ship
or vessel may touch or trade at during the voyage, without any deduction
from the wages of such sick seaman or mariner.
3. And by the act to amend the above mentioned act, approved March 2,
1805, 2 Story's Laws U. S. 971, it is provided that all the provisions,
regulations, and penalties, which are contained in the eighth section of the
act, entitled "An act for the, government and regulation of seamen in the
merchants' service," so far as relates to a chest of medicines to be
provided for vessels of one hundred and fifty tons burthen and upwards,
shall be extended to all merchant vessels of the burthen of seventy-five
tons or upwards, navigated with six persons, or more, in the whole, and
bound from the United States to any port or ports in the West Indies.
MEDIETAS LINGUAE. Half tongue. This expression was used to signify that a
jury for the trial of a foreigner or alien for a crime, was to be composed
one half of natives and the other of foreigners. The jury de medietate
linguae is used in but a few if any of the United States. Dane's Ab. vol. 6,
c. 182, a, 4, n. 1. Vide 2 Johns. R. 381; 1 Chit. Cr. Law, 525; Bac. Ab.
Juries, E 8.
MELANCHOLIA, med. jur. A name given by the ancients to a species of partial
intellectual mania, now more generally known by the name of monomania.
(q.v.) It bore this name because it was supposed to be always attended by
dejection of mind and gloomy ideas. Vide Mania.,
MELIORATIONS, Scotch law. Improvements of an estate, other than mere
repairs; betterments. (q.v.) 1 Bell's Com. 73.
MELIUS INQUIRENDUM VEL INQUIRENDO. English practice. A writ which in certain
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cases issues after an imperfect inquisition returned on a capias utlugatum
in outlawry. This melius inquirendum commands the sheriff to summon another
inquest in order that the value, &c., of lands, &c., may be better or more
correctly ascertained. Its use is rare.
MEMBER. This word has various significations: 1. The limits of the body
useful in self-defence. Membrum est pars corporis habens destinatum
operationem in corpore. Co. Litt. 126 a. See Limbs.
2.-2. An individual who belongs to a firm, partnership, company or
corporation. Vide Corporation; Partnership.
3.-3. One who belongs to a legislative body, or other branch of the
government; as, a member of the house of representatives; a member of the
court.
MEMBER OF CONGRESS. A member of the senate or house of representatives of
the United States.
2. During the session of congress they are privileged from arrest,
except for treason, felony, or breach of the peace; they receive a
compensation of eight dollars per day while in session, besides mileage.
(q.v.)
3. They are authorized to frank letters and receive them free of
postage for sixty days before, during, and for sixty days after the session.
4. They are prohibited from entering into any contracts with the United
States, directly or indirectly, in whole or in part for themselves and
others, under the penalty of three thousand dollars. Act of April 21, 1808,
2 Story's L. U. S. 1091. Vide Congress; Frank.
MEMBERS, English law. Places where a custom-house has been kept of old time,
with officers or deputies in attendance; and they are lawful places of
exportation or importation. 1 Chit. Com. L. 726.
MEMORANDUM. Literally, to be remembered. It is an informal instrument
recording some fact or agreement, so called from its beginning, when it was
made in Latin. It is sometimes commenced with this word, though written in
English; as "Memorandum, that it is agreed," or it is headed with the words,
"Be it remembered that," &c. The term memorandum is also applied to the
clause of an instrument.
MEMORANDUM, insurance. A clause in a policy limiting the liability of the
insurer. Its usual form is as follows, namely, "N. B. Corn, fish, salt,
fruit, flour and seed, are warranted free from average, unless general, or
the ship be stranded: sugar, tobacco, hemp, flax, hides and skins, are
warranted free from average, under five percent; and all other goods, also
the ship and freight, are warranted free from average, under three percent
unless general, or the ship be stranded." Marsh. Ins.223; 5 N. S. 293; Id.
540; 4 N. S. 640; 2 L. R. 433; Id. 435.
MEMORANDUM OR NOTE. These words are use in the 4th section of the statute 29
Charles II., c. 3, commonly called the statute of frauds and perjuries,
which enact, that "no action shall be brought whereby to charge any person
upon any agreement made upon consideration of marriage, or upon any contract
or sale of lands, tenements, or hereditaments, or any interest in or
concerning them, unless the agreement upon which such action shall he
brought, or some memorandum or note thereof, Shall be in writing," &c.
2. Many cases have arisen out of the words of this part of the statute;
the general rule seems to be that the contract must be stated with
reasonable certainty in the memorandum or note so that it can be understood
from the writing itself, without having recourse to parol proof. 3 John., R.
399; 2 Kent, Com. 402; Cruise, Dig. t. 32, c. 3, s. 18. See 1 N. R. 252; 3
Taunt. 169; 15 East, 103; 2 M. & R. 222; 8 M. & W. 834 6 M. & W. 109.
MEMORANDUM CHECK. It is not unusual among merchants, when one makes a
temporary loan from another, to give the lender a check on a bank, with the
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express or implied agreement that it shall be redeemed by the maker himself,
and that it shall not be presented at the bank for payment. If passed to a
third person, it will be valid in his hands, like any other check. 11 Paige,
R. 612.
MEMORIAL. A petition or representation made by one or more individuals to a
legislative or other body. When such instrument is addressed to a court, it
is called a petition.
MEMORY. Understanding; a capacity to make contracts, a will, or to commit a
crime, so far as intention is necessary.
2. Memory is sometimes employed to express the capacity of the
understanding, and sometimes its power; when we speak of a retentive memory,
we use it in the former sense; when of a ready memory, in the latter. Shelf.
on Lun. Intr. 29, 30.
3. Memory, in another sense, is the reputation, good or bad, which a
man leaves at his death. This memory, when good, is highly prized by the
relations of the deceased, and it is therefore libelous to throw a shade
over the memory of the dead, when the writing has a tendency to create a
breach of the peace, by inciting the friends and relations of the deceased
to avenge the insult offered to the family. 4 T. R. 126; 5 Co. R. 125; Hawk.
b. 1, c. 73, s. 1.
MEMORY, TIME OF. According to the English common law, which has been altered
by 2 & 3 Wm. IV., c. 71, the time of memory commenced from the reign of
Richard the First, A. D. 1189. 2 Bl. Com. 31.
2. But proof of a regular usage for twenty years, not explained or
contradicted, is evidence upon which many public and private rights are
held, and sufficient for a jury in finding the existence of an immemorial
custom or prescription. 2 Saund. 175, a, d; Peake's Ev. 336; 2 Price's R.
450; 4 Price's R. 198.
MENACE. A threat; a declaration of an intention to cause evil to happen to
another.
2. When menaces to do an injury to another have been made, the party
making them may, in general, be held to bail to keep the peace; and, when
followed by any inconvenience or loss, the injured party has a civil action
against the wrong doer. Com. Dig. Battery, D; Vin. Ab. h.t.; Bac. Ab.
Assault; Co. Litt. 161 a, 162 b, 253 b; 2 Lutw. 1428. Vide Threat.
MENIAL. This term is applied to servants who live under their master's roof
Vide stat. 2 H. IV., c. 21.
MENSA. This comprehends all goods and necessaries for livelihood. Obsolete.
MENSA ET THORO. The phrase a mensa et thoro is applied to a divorce which
separates the husband and wife but does not dissolve the marriage. Vide
Divorce.
MERCHANT. One whose business it is to buy and sell merchandise; this applies
to all persons who habitually trade in merchandise. 1 Watts & S. 469; 2
Salk. 445.
2. In another sense, it signifies a person who owns ships, and trades,
by means of them, with foreign nations, or with the different States of the
United States; these are known by the name of shipping merchants. Com. Dig.
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Merchant, A; Dyer, R. 279 b; Bac. Ab. h.t.
3. According to an old authority, there are four species of merchants,
namely, merchant adventurers, merchant dormant, merchant travellers, and
merchant residents. 2 Brownl. 99. Vide, generally, 9 Salk. R. 445; Bac. Ab.
h.t.; Com. Dig. h.t.; 1 Bl. Com. 75, 260; 1 Pard. Dr. Com. n. 78
MERCHANTMAN. A ship or vessel employed in a merchant's service. This term is
used in opposition to a ship of war.
MERCHANTS' ACCOUNTS. In the statute of limitations, 21 Jac. 1. c. 16, there
is an exception which has been copied in the acts of the legislatures of a
number of the States, that its provisions shall not apply to such accounts
as concern trade and merchandise between merchant and merchant, their
factors or servants.
2. This exception, it has been holden, applies to actions of assumpsit
as well as to actions of account. 5 Cranch, 15. But to bring a case within
the exception, there must be an account, and that account open and current,
and it must concern trade. 12 Pet. 300. See 6 Pet. 151; 5 Mason, R. 505;
Bac. Ab. Limitation of Actions, E 3; and article Limitation.
MERCY, Practice. To be in mercy, signifies to be liable to punishment at the
discretion of the judge.
MERE. This is the French word for mother. It is frequently used as, in
ventre sa mere, which signifies; a child unborn, or in the womb.
MERGER. Where a greater and lesser thing meet, and the latter loses its
separate existence and sinks into the former. It is applied to estates,
rights, crimes, and torts.
MERGER, estates. When a greater estate and less coincide and meet in one and
the same person, without any intermediate estate, the less is immediately
merged, that is, sunk or drowned in the latter; example, if there be a
tenant for years, and the reversion in fee simple descends to, or is
purchased by him, the term of years is merged in the inheritance, and no
longer exists; but they must be to one and the same person, at one and the
same time, in one and the same right. 2 BL Com. 177; 3 Mass. Rep. 172;
Latch, 153; Poph. 166; 1 John. Ch. R. 417; 3 John. Ch. R. 53; 6 Madd. Ch. R.
119.
2. The estate in which the merger takes place, is not enlarged by the
accession of the preceding estate; and the greater, or only subsisting
estate, continues, after the merger, precisely of the same quantity and
extent of ownership, as it was before the accession of the estate which is
merged, and the lesser estate is extinguished. Prest. on Conv. 7. As a
general rule, equal estates will not drown in each other.
3. The merger is produced, either from the meeting of an estate of
higher degree, with an estate of inferior degree; or from the meeting of the
particular estate and the immediate reversion, in the same person. 4 Kent,
Com. 98. Vide 3 Prest. on Conv. which is devoted to this subject. Vide,
generally, Bac. Ab. Leases, &c. R; 15 Vin. Ab. 361; Dane's Ab. Index, h.t.;
10 Verm. R. 293;; 8 Watts, R. 146; Co. Litt. 338 b, note 4; Hill. Ab. Index,
h.t.; Bouv. Inst; Index, h.t.; and Confusion; Consolidation; Unity of
Possession.
MERGER, crim. law. When a man commits a great crime which includes a lesser,
the latter is merged in the former.
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2. Murder, when committed by blows, necessarily includes an assault and
battery; a battery, an assault; a burglary, when accompanied with a
felonious taking of personal property, a larceny in all these, and similar
cases, the lesser crime is merged in the greater.
3. But when one offence is of the same character with the other, there
is no merger; as in the case of a conspiracy to commit a misdemeanor, and
the misdemeanor is afterwards committed in pursuance of the conspiracy. The
two crimes being of equal degree, there can be no legal merger. 4 Wend. R.
265. Vide Civil Remedy.
MERGER, rights. Rights are said to be merged when the same person who is
bound to pay is also entitled to receive. This is more properly called a
confusion of rights, or extinguishment.
2. When there is a confusion of rights, and the debtor and creditor
become the same person, there can be no right to put in execution; but there
is an immediate merger. 2 Ves. jr. 264. Example: a man becomes indebted to a
woman in a sum of money, and afterwards marries her, there is immediately a
confusion of rights, and the debt is merged or extinguished.
MERGER, torts. Where a person in committing a felony also commits a tort
against a private person; in this case, the wrong is sunk in the felony, at
least, until after the felon's conviction.
2. The old maxim that a trespass is merged in a felony, has sometimes
been supposed to mean that there is no redress by civil action for an injury
which amounts to a felony. But it is now established that the defendant is
liable to the party injured either after his conviction; Latch, 144; Noy,
82; W. Jones, 147; Sty. 346; 1 Mod. 282; 1 Hale, P. C. 546; or acquittal. 12
East, R. 409; 1 Tayl. R. 58; 2 Hayw. 108. If the civil action be commenced
before, the plaintiff will be nonsuited. Yelv. 90, a, n. See Hamm. N. P. 63;
Kely. 48; Cas. Tempt. Hardw. 350; Lofft. 88; 2 T.R. 750; 3 Greenl. R. 458.
Butler, J., says, this doctrine is not extended beyond actions of trespass
or tort. 4 T. R. 333. See also 1 H. Bl. 583, 588, 594; 15 Mass. R. 78; Id.
336. Vide Civil Remedy; Injury.
3. The Revised Statutes of New York, part 3, c. 4, t. 1, s. 2, direct
that the right of action of any person injured by any felony, shall not, in
any case, be merged in such felony, or be in any manner affected thereby. In
Kentucky, Pr. Dec. 203, and New Hampshire, 6 N. H. Rep. 454, the owner of
stolen goods, may immediately. pursue his civil remedy. See, generally,
Minor, 8; 1 Stew. R. 70; 15 Mass. 336; Coxe, 115; 4 Ham. 376; 4 N. Hanp.
Rep. 239; 1 Miles, R. 212; 6 Rand. 223; 1 Const. R. 231; 2 Root, 90.
MERITS. This word is used principally in matters of defence.
2. A defence upon the merits, is one that rests upon the justice of the
cause, and not upon technical grounds only; there is, therefore, a
difference between a good defence, which may be technical or not, and a
defence on the merits. 5 B. & Ald. 703 1 Ashm. R. 4; 5 John. R. 536; Id.
360; 3 John. R. 245 Id. 449; 6 John. R. 131; 4 John. R. 486; 2 Cowen, R.
281; 7 Cowen, R. 514; 6 Wend. R. 511; 6 Cowen, R. 895.
MERTON, STATUTE OF. A statute so called, because the parliament or rather
council, which enacted it, sat at Merton, in Surrey. It was made the 20 Hen.
III. A. D. 1236. See Barr. an the Stat. 41.
MESNE. The middle between two extremes, that part between the commencement
and the end, as it relates to time.
2. Hence the profits which a man receives between disseisin and
recovery of lands are called mesne profits. (q.v.) Process which is issued
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in a suit between the original and final process, is called mesne process.
(q.v.)
3. In England, the word mesne also applies to a dignity: those persons
who hold lordships or manors of some superior who is called lord paramount,
and grant the same to inferior persons, are called mesne lords.
MESNE PROCESS. Any process issued between original and final process; that
is, between the original writ and the execution. See Process, mesne.
MESNE PROFITS, torts, remedies. The value of the premises, recovered in
ejectment, during the time that the lessor of the plaintiff has been
illegally kept out of the possession of his estate by the defendant; such
are properly recovered by an action of trespass, quare clausum fregit, after
a recovery in ejectment. 11 Serg. & Rawle, 55; Bac. Ab. Ejectment, H; 3 Bl.
Com. 205.
2. As a general rule, the plaintiff is entitled to recover for such
time as be can prove the defendant to have been in possession, provided he
does not go back beyond six years, for in that case, the defendant may plead
the statute of limitations. 3 Yeates' R, 13; B. N. P. 88.
3. The value of improvements made by the defendant, may be set off
against a claim for mesne profits, but profits before the demise laid,
should be first deducted from the value of the improvement's. 2 W. C. C. R.
165. Vide, generally, Bac. Ab. Ejectment, H; Woodf. L. & T. ch. 14, s. 3; 2
Sell. Pr. 140; Fonb. Eq. Index, h.t.; Com. L & T. Index, h.t.; 2 Phil. Ev.
208; Adams on Ej. ch. 13; Dane's Ab. Index, h.t.; Pow. Mortg. Index, h.t.;
Bouv. Inst. Index, h.t.
MESNE, WRIT of. The name of an ancient writ, which lies when: the lord
paramount distrains on the tenant paravail; the latter shall have a writ of
mesne against the lord who is mesne. F. N. B. 316.
MESSENGER. A person appointed to perform certain duties, generally of a
ministerial character.
2. In England, a messenger appointed under the bankrupt laws, is an
officer who is authorized to execute the lawful commands of commissioners of
bankrupts.
MESSUAGE, property. This word is synonymous with dwelling-house; and a grant
of a messuage with the appurtenances, will not only pass a house, but all
the buildings attached or belonging to it, as also its curtilage, garden and
orchard, together with the close on which the house is built. 1 Inst. 5, b.;
2 Saund. 400; Ham. N. P. 189; 4 Cruise, 321; 2 T. R. 502; 1 Tho. Co. Litt.
215, note 35; 4 Blackf. 331. But see the cases cited in 9 B. & Cress. 681;
S. C. 17 Eng. Com. L. R. 472. This term, it is said, includes a church. 11
Co. 26; 2 Esp. N. P. 528; 1 Salk. 256; 8 B. & Cress. 25; S. C. 15 Eng. Com.
L. Rep. 151. Et vide 3 Wils. 141; 2 Bl. Rep. 726; 4 M. & W. 567; 2 Bing. N.
C. 617; 1 Saund. 6.
METHOD. The mode of operating or the means of attaining an object.
2. It has been questioned whether the method of making a thing can be
patented. But it has been considered that a method or mode may be the
subject of a patent, because, when the object of two patents or effects to
be produced is essentially the same, they may both be valid, if the modes of
attaining the desired effect are essentially different. Dav. Pat. Cas. 290;
2 B. & Ald. 350; 2 H. Bl. 492; 8 T. R. 106; 4 Burr. 2397; Gods. on Pat. 85;
Perpigna, Manuel des Inventeurs, &c., c. 1, sect. 5, Sec. 1, p. 22.
METRE or METER. This word is derived from the Greek, and signifies a
measure.
2. This is the standard of French measure.
3. The fundamental base of the metre is the quarter of the terrestrial
meridian, or the distance from the pole to equator, which has been divided
into ten millions of equal parts, one of which is of the length of the
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metre. The metre is equal to 3.28 feet, or 39.371 inches. Vide Measure.
MEUBLES MEUBLANS. A French term used in Louisiana, which signifies simply
household furniture. 4 N. S. 664; 3 Harr. Cond. R. 431.
MICEL GEMOT, Eng. law. In Saxon times, the great council of the nation bore
this name, sometimes also called the witena gemot, or assembly of wise men;
in aftertimes, this assembly assumed the name of parliament. Vide 1 Bl.
Comm. 147.
MICHAELMAS TERM. Eng. law. One of the four terms of the courts; it begins on
the 2d day of November, and ends on the 25th of November. It was formerly a
movable term. St. 11 G. IV. and 1 W. IV. 70.
MICHIGAN. One of the new, states of the United States of America. This state
was admitted into the Union by the Act, of Congress of January 26th, 1837,
Sharsw. cont. of Story's L. U. S. 2531, which enacts "that the state of
Michigan shall be one and is hereby declared to be one, of the United States
of America, and admitted into the Union on an equal footing with the
original states, in all respects whatever."
2. The first constitution of this state was adopted by a convention of
the people, begun and held at the capital in the city of Detroit, on Monday,
the eleventh day of May, 1835. This was superseded by the present
constitution, which was adopted 1850. It provides, article 3, Sec. 1; The
powers of the government shall be divided into three distinct departments;
the legislative, the executive, and the judicial; and one department shall
never exercise the powers of another, except in such cases as are expressly
provided for in this constitution.
3.-1. Art. 4, relates to the Legislative department, and provides
that
Sec. 1. The legislative power shall be vested in a senate and house of
representatives.
4.-Sec. 6. No person holding any office under the United States [or
this state] or any county office, except notaries public, officers of the
militia and officers elected by townships, shall be eligible to, or have a
seat in either house of the legislature, and all votes given for any such
person shall be void.
5.-Sec. 7. Senators and representatives shall, in all cases except
treason, felony, or breach of the peace, be privileged from arrest, nor
shall they be subject to any civil process, during the session of the
legislature, nor for fifteen days next before the commencement and after the
termination of each session. They shall not be questioned in any other
place for any speech in either house.
6.-Sec. 8. A majority of each house shall constitute a quorum to do
business; but a smaller number may adjourn from day to day, and may compel
the attendance of absent members, in such manner and under such penalties as
each house may provide.
7.-Sec. 9. Each house shall choose its own officers, determine the
rules of its proceeding, and judge of the qualifications, elections, and
return of its own members and may, with the concurrence of two-thirds of all
the members elected, expel a member; no member shall be expelled a second
time for the same cause, nor for any cause known to his constituents
antecedent to his election. The reason for such expulsion shall be entered
upon the journal, with the names of the members voting on the question.
8.-Sec. 10. Each house shall keep a journal of its proceedings, and
publish the same, except such parts as may require secrecy; the yeas and
nays of the members of either house, on any question, shall be entered on
the journal at the request of one-fifth of the members present. Any member
of either house may dissent from and protest against any act, proceeding or
resolution which he may deem injurious to any person or the public, and have
the reason of his dissent entered on the journal.
9.-Sec. 11. In all elections by either house, or in joint convention,
the votes shall be given viva voce. All votes on nominations to the senate
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shall be taken by yeas and nays, and published with the journal of its
proceedings.
10.-Sec. 12. The doors of each house shall be open, unless the public
welfare require secrecy; neither house shall, without the consent of the
other, adjourn for more than three days, nor to any other place than where
the legislature may then be in session.
11.-1st. In considering the house of representatives, it will be
proper to take a view of the qualifications of members; the qualification of
the electors; the number of members; the time for which they are elected.
12.-1. The representatives must be citizens of the United States, and
qualified electors in the respective counties which they represent. Art. 4,
S. 5. 2. In all elections, every white male citizen, every white male
inhabitant residing in the state on the twenty-fourth day of June, one
thousand eight hundred and thirty-five; every white male inhabitant residing
in the first day of January, one thousand eight hundred and fifty, who has
declared his intention to become a citizen of the United States pursuant to
the laws thereof six months preceding an election, or who has resided in
this state two years and six months and declared his intention as aforesaid
and every civilized male inhabitant of Indian descent, a native of the
United States, and not a member of any tribe, shall be an elector and
entitled to vote; but no citizen or inhabitant shall be an elector or
entitled to vote at any election, unless he shall be above the age of
twenty-one years, and has resided in this state three months and in the
township or ward in which he offers to vote ten days next preceding such
election. Art. 7, Sec. 1. 3. The house of representatives shall consist of
not less than sixty-five nor more than one hundred members. Art. 4, s. 3. 4.
The election of representatives, pursuant to the provisions of this
constitution, shall be held on the Tuesday succeeding the first Monday of
November, in the year one thousand eight hundred and fifty-two, and on the
Tuesday succeeding the first Monday of November of every second year
thereafter. Art. 4, s. 34. Representatives shall be chosen for two years.
Art. 4, s. 3.
13.-2d. The senate will be considered in the same order. 1. Senators
must be citizens of the United States, and be qualified electors in the
district which they represent. Art. 4, s. 5. 2. They are elected by the
electors of representatives. Art. 7, s. 1. 3. The senate shall consist of
thirty-two members. Art. 4, s. 2. 4. The senators shall be elected for two
years, at the same time and in the same manner as the representatives are
required to be chosen. Art. 4, section 2, 34.
14.-2. The executive department is regulated by the fifth article of
the constitution as follows, namely:
Sec. 1. The executive power is vested in a governor, who shall hold his
office for two years; a lieutenant governor shall be chosen for the same
term.
15.-Sec. 2 No person shall be eligible to the office of governor or
lieutenant governor, who has not been five years a citizen of the United
States, and a resident of this state two years next preceding the election;
nor shall any person be eligible to either office who has not attained the
age of thirty years.
16.-Sec. 3. The governor and lieutenant governor shall be elected at
the times and places of choosing members of the legislature. The Person
having the highest number of votes for governor and lieutenant governor
shall be elected; in case two or more persons have an equal and the highest
number of votes for governor or lieutenant governor, the legislature shall
by joint vote choose one of such persons.
17.-Sec. 4. The governor shall be commander-in-chief of the military
and naval forces, and may call out such forces to execute the laws, to
suppress insurrections and to repel invasions.
18.-Sec. 5. He shall transact all necessary; business with the
officers of government; and may require information, in writing, from the
officers of the executive department, upon any subject relating to the
duties of their respective offices.
19.-Sec. 6. He shall take care that the laws be faithfully executed.
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20.-Sec. 7. He may convene the legislature on extraordinary occasions.
21.-Sec. 8. He shall give to the legislature, and at the close of his
official term to the next legislature, information by message of the
condition of the state, and recommend such measures to them as he shall deem
expedient.
22.-Sec. 9. He may convene the legislature at some other place, when
the seat of government becomes dangerous from disease or a common enemy.
23.-Sec. 10. He shall issue writs of election to fill such vacancies
as occur in the senate or house of representatives.
24.-Sec. 11. He may grant reprieves, commutations and pardons after
convictions, for all offences except treason and cases of impeachment, upon
such conditions, and with such restrictions and limitations, as he may think
proper, subject to regulations provided by law, relative to the manner of
applying for pardons. Upon conviction for treason, he may suspend the
execution of the sentence until the case shall be reported to the
legislature at its next session, when the legislature shall either pardon,
or commute the sentence, direct the execution of the sentence, or grant a
further reprieve. He shall communicate to the legislature at each session
information of each case of reprieve, commutation or pardon granted, and the
reasons therefor.
25.-Sec. 12. In case of the impeachment of the governor, his removal
from office, death, inability, resignation, or absence from the state, the
powers and duties of the office shall devolve upon the lieutenant governor
for the residue of the term, or until the disability ceases. When the
governor shall be out of the state in time of war, at the head of a military
force thereof, he shall continue commander-in-chief of all the military
force of the state.
26.-Sec. 13. During a vacancy in the office of governor, if the
lieutenant governor die, resign, be impeached, displaced, be incapable of
performing the duties of his office, or absent from the state, the president
pro tempore of the senate shall act as governor until the vacancy be filled,
or the disability cease.
27.-Sec. 14. The lieutenant governor shall, by virtue of his office,
be president of the senate. In committee of the whole he may debate all
questions; and when there is an equal division, he shall give the casting
vote.
28.-Sec. 15. No member of congress, nor any person holding office
under the United States, or this state, shall execute the office of
governor.
29.-Sec. 16. No person elected governor or lieutenant governor shall
be eligible to any office or appointment from the legislature, or either
house thereof, during the time for which he was elected. All votes for
either of them, for any such office, shall be void.
30.-Sec. 17. The lieutenant governor and president of the senate pro
tempore, when performing the duties of governor, shall receive the same
compensation as the governor.
31.-Sec. 18. All official acts of the governor, his approval of the
laws excepted, shall be authenticated by the great seal of the state, which
shall be kept by the secretary of state.
32.-Sec. 19. All commissions issued to persons holding office under
the provisions of this constitution, shall be in the name and by the
authority of the people of the state of Michigan, sealed with the great seal
of the state, signed by the governor, and countersigned by the secretary of
state.
32.-3. The judicial department is regulated by the sixth article as
follows, namely:
33.-Sec. 1. The judicial power is vested in one supreme court, in
circuit courts, in probate courts, and in justices of the peace. Municipal
courts of civil and criminal jurisdiction may be established by the
legislature in cities.
34.-Sec. 2. For the term of six years, and thereafter, until the
legislature otherwise provide, the judges of the several circuit courts
shall be judges of the supreme court, four of whom shall constitute a
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quorum. A concurrence of three shall be necessary to a final decision. After
six years the legislature may provide by law for the organization of a
supreme court, with the jurisdiction and powers prescribed in this
constitution, to consist of one chief justice and three associate justices,
to be chosen by the electors of the state. Such supreme court, when so
organized, shall not be changed or discontinued by the legislature for eight
years thereafter. The judges thereof shall be so classified that but one of
them shall go out of office at the same time. Their term of office, shall be
eight years.
35.-Sec. 3. The supreme court shall have a general superintending
control over all inferior courts, and shall have power to issue writs of
error, habeas corpus, mandamus, quo warrants, procedendo, and other original
and remedial writs, and to hear and determine the same. In all other cases
it shall have appellate jurisdiction only.
36.-Sec. 4. Four terms of the supreme court shall be held annually, at
such times and places, as may be designated by law.
37.-Sec. 5. The supreme court shall, by general rules, establish,
modify and amend the practice in such court and in the circuit courts, and,
simplify the same. The legislature shall, as far as practicable, abolish
distinctions between law and equity proceedings. The office of master in
chancery is prohibited.
38.-Sec. 6. The state shall be divided, into eight judicial circuits;
in each of which the electors thereof shall elect one circuit judge, who
shall hold his office for the term of six years, and until his successor is
elected and qualified.
39.-Sec. 7. The legislature may alter the limits of circuits, or
increase the number of the same. No alteration or increase shall have the
effect to remove a judge from office. In every additional circuit
established the judge shall be elected by the electors of such circuit, and
his term of office shall continue as provided in this constitution for
judges of the circuit court.
40.-Sec. 8. The circuit courts shall have original jurisdiction in all
matters civil and criminal, not excepted in this constitution, and not
prohibited by law; and, appellate jurisdiction from all inferior courts and
tribunals, and a supervisory control of the same. They shall also have power
to issue writs of habeas corpus, mandamus, injunction, quo warranto,
certiorari, and other writs necessary to carry into effect their orders,
judgments and decrees, and give there a general control over inferior courts
and tribunals within their respective jurisdictions.
41.-Sec. 9. Each of the judges of the circuit courts shall receive a
salary payable quarterly. They shall be ineligible to any other than a
judicial office during the term for which they are elected, and for one year
thereafter. All votes for any person elected such judge for any office other
than judicial, given either by the legislature or the people, shall be void.
42.-Sec. 10. The supreme court may appoint a reporter of its
decisions. The decisions of the supreme court shall be in writing, and
signed by the judges concurring therein. Any judge dissenting there from,
shall give the reasons of such dissent in writing, under his signature. All
such opinions shall be filed in the office of the clerk of the supreme
court. The judges of the circuit court, within their respective
jurisdictions, may fill vacancies in the office of county clerk and of
prosecuting, attorney; but no judge of the supreme court, or, circuit court,
shall exercise any other power of appointment to public office.
43.-Sec. 11. A circuit court shall be held at least twice in each
year, in every county organized for judicial purposes, and four times in
each year in counties containing ten thousand inhabitants. Judges of the
circuit court may hold courts for each other, and shall do so when required
by law.
44.-Sec. 12. The clerk of each county organized for judicial purposes
shall be the clerk of the circuit court of such county, and of the supreme
court when held within the same.
45.-Sec. 13. In each of the counties organized for judicial purposes,
there shall be a court of probate. The judge of such court shall be elected
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by the electors of the county in which he resides, and shall hold his office
for four years, and until his successor is elected and qualified. The
jurisdiction, powers, and duties of such court, shall be prescribed by law.
46.-Sec. 14. When a vacancy occurs in the office of judge of the
supreme, circuit or probate court, it shall be filled by appointment of the
governor, which shall continue until a successor is elected and qualified.
When elected, such successor shall hold his office the residue of the
unexpired term.
47.-Sec. 15. The supreme court, the circuit and probate court of each
county, shall be courts of record, and shall each have a common seal.
48.-Sec. 16. The legislature may provide by law for the election of
one or more persons in each organized county, who may be vested with
judicial powers, not exceeding those of a judge of the circuit court at
chambers.
49.-Sec. 17. There shall be not exceeding four justices of the peace
in each organized township. They shall be elected by the electors of the
townships, and shall hold their offices for four years, and until their
successors are elected and qualified. At the first election in any township,
they shall be classified as shall be prescribed by law. A justice elected to
fill a vacancy shall hold his office for the residue of the unexpired term.
The legislature may increase the number of justices in cities.
50.-Sec. 18. In civil cases justices of the peace shall have exclusive
jurisdiction to the amount of one hundred dollars, and concurrent
jurisdiction to the amount of three hundred dollars, which may be increased
to five hundred dollars, with such exceptions and restrictions as may be
provided by law. They shall also have such criminal jurisdiction and perform
such duties as shall be prescribed by the legislature.
51.-Sec. 19. Judges of the supreme court, circuit judges, and justices
of the peace, shall be conservators of the peace within their respective
jurisdictions.
52.-Sec. 20. The first election of judges of the circuit courts shall
be held on the first Monday in April, one thousand eight hundred and fifty-
one, and every sixth year thereafter. Whenever an additional circuit is
created, provision. shall be made to hold the subsequent election of such
additional judges at the regular elections herein provided.
53.-Sec. 21. The first election of judges of the probate courts shall
be held on the Tuesday succeeding the first Monday of November, one thousand
eight hundred and fifty-two, and every fourth year thereafter.
54.-Sec. 22. Whenever a judge shall remove beyond the limits of the
jurisdiction for which he was elected or a justice of the peace from the
township in which he was elected, or by a change in the boundaries of such
township shall be placed without the same, they shall be deemed to have
vacated their respective offices.
55.-Sec. 23. The legislature may establish courts of conciliation,
with such powers and duties as shall be prescribed by law.
56.-Sec. 24. Any suitor in any court of this state shall have the
right to prosecute or defend his suit, either in his own proper person, or
by an attorney or agent, of his choice.
57.-Sec. 25. In all prosecutions for libels, the truth may be given in
evidence to the jury; and if it shall appear to the jury that the matter
charged as libelous is true, and was published with good motives and for
justifiable ends, the party shall be acquitted. The jury shall have the
right to determine the law and the fact.
58.-Sec. 26. The person, houses, papers, and possessions of every
person shall be secure from unreasonable searches and seizure. No warrant to
search any place, or to seize any person or things shall issue without
describing them, nor without probable cause, supported by oath or
affirmation.
59.-Sec. 27. The right of trial by jury shall remain, but shall be
deemed to be waived in all civil cases unless demanded by one of the
parties, in such manner as shall be prescribed by law.
60.-Sec. 28. In every criminal prosecution, the accused shall have the
right to a speedy and public trial by an impartial jury, which may consist
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of less than twelve, men in all courts not of record; to be informed of the
nature of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and have
the assistance of counsel for his defence.
61.-Sec. 29. No person, after acquittal upon the merits, shall be
tried for the same offence; all persons shall, before conviction, be
bailable by sufficient sureties, except for murder and treason, when the
proof is evident or the presumption great.
62.-Sec. 30. Treason against the state shall consist only in levying
war against, or in adhering to its enemies, giving them aid and comfort. No
person shall be convicted of treason unless upon the testimony of two
witnesses to the same overt act, or on confession in open court.
63.-Sec. 31. Excessive bail shall not be required; excessive fines
shall not be imposed; cruel or unusual punishment shall not be inflicted,
nor, shall witnesses be unreasonably detained.
64.-Sec. 32. No person shall be compelled, in any criminal case, to be
a witness against himself; nor be deprived of life, liberty, or property,
without due process of law.
65.-Sec. 33. No person shall be imprisoned for debt arising out of, or
founded on a contract, express or implied, except in cases of fraud or
breach of trust, or of moneys collected by public officers, or in any
professional employment. No person shall be imprisoned for a militia fine in
time of peace.
66.-Sec. 34. No person shall be rendered incompetent to be a witness,
on account of his opinions on matters of religious belief.
67.-Sec. 35. The style of all process shall be, "In the name of the
people of the State of Michigan."
MINE. An excavation made for obtaining minerals from the bowels of the
earth, and the minerals themselves are known by the name of mine.
2. Mines are therefore considered as open and not open. An open mine is
one at which work has been done, and a part of the materials taken out. When
land is let on which there is an open mine, the tenant may, unless
restricted by his lease, work the mine; 1 Cru. Dig. 132; 5 Co. R. 12; 1
Chit. Pr. 184, 5; and he may open new pit's or shafts for working the old
vein, for otherwise the working of the same mine might be impracticable. 2
P. Wms. 388; 3 Tho. Co. Litt. 237; 10 Pick. R. 460. A mine not opened,
cannot be opened by a tenant for years unless authorized, nor even by a
tenant for life, without being guilty of waste. 5 Co. 12.
3. Unless expressly excepted, mines would be included in the conveyance
of land, without being expressly named, and so vice versa, by a grant of a
mine, the land itself, the surface above the mine, if livery be made, will
pass. Co. Litt. 6; 1 Tho. Co. Litt. 218; Shep. To. 26. Vide, generally, 15
Vin. Ab. 401; 2 Supp. to Ves. jr. 257, and the cases there cited, and 448;
Com. Dig. Grant, G 7; Id. Waifs, H. 1; Crabb, R. P. Sec. 98-101; 10 East,
273; 1 M. & S. 84; 2 B. & A. 554; 4 Watts, 223-246.
4. In New York the following provisions have been made in relation to
the mines in that state, by the revised statutes, part 1, chapter 9, title
11. It is enacted as follows, by
Sec. 1. The following mines are, and shall be, the property of this
state, in its right of sovereignty. 1. All mines of gold and silver
discovered, or hereafter to be discovered, within this state. 2. All mines
of other metals discovered, or hereafter to be discovered, upon any lands
owned by persons not being citizens of any of the United States. 3. All
mines of other metals discovered, or hereafter to be discovered, upon lands
owned by a citizen of any of the United States, the ore of which, upon an
average, shall contain less than two equal third parts in value, of copper,
tin, iron or lead, or any of those metals.
6.-Sec. 2. All mines, and all minerals and fossils discovered, or
hereafter to be discovered, upon any lands belonging to the people of this
state, are, and shall be the property of the people, subject to the
provisions hereinafter made to encourage the discovery thereof.
6.-Sec. 3. All mines of whatever description, other than mines of
gold and silver, discovered or hereafter to be discovered, upon any lauds
owned by a citizen of the United states, the ore of which, upon an average,
shall contain two equal third parts or more, in value, of copper, tin, iron
and lead, or any of those metals, shall belong to the owner of such land.
7.-Sec. 4. Every person who shall make a discovery of any mine of
gold or silver, within this state, and the executors, administrators or
assigns of such person, shall be exempted from paying to the people of this
state, any part of the ore, profit or produce of such mine, for the term of
twenty-one years, to be computed from the time of giving notice of such
discovery, in the manner hereinafter directed.
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8.-Sec. 5. No person discovering a mine of gold or silver within this
state, shall work the same, until he give notice thereof, by information in
writing, to the secretary of this state, describing particularly therein the
nature and situation of the mine. Such notice shall be registered in a book,
to be kept the secretary for that purpose.
9.-Sec. 6. After the expiration of the term above specified, the
discoverer of the mine, or his representatives, shall be preferred in any
contract for the working of such mine, made with the legislature or under
its authority.
10.-Sec. 7. Nothing in this title contained shall affect any grants
heretofore made by the legislature, to persons having discovered mines; nor
be construed to give to any person a right to enter on, or to break up the
lands of any other person, or of the people of this state, or to work any
mines in such lands, unless the consent, in writing, of the owner thereof,
or of the commissioners of the land office, when the lands belong to the
people of this state, shall be previously obtained.
MINISTER, government. An officer who is placed near the sovereign, and is
invested with the administration of some one of the principal branches of
the government.
2. Ministers are responsible to the king or other supreme magistrate
who has appointed them. 4 Conn. 134.
MINISTER, eccl. law. One ordained by some church to preach the gospel.
2. Ministers are authorized in the United States, generally, to marry,
and are liable to fines and penalties for marrying minors contrary to the
local regulations. As to the right of ministers or parsons, see Am. Jur. No.
30, p. 268; Anth. Shep. Touch. 564; 2 Mass. R. 500; 10 Mass. R. 97; 14 Mass.
R. 333; 3 Fairf. R. 487.
MINISTER, mediator. An officer appointed by the government of one nation,
with the consent of two other nations, who have a matter in dispute, with a
view by his interference and good office to have such matter settled.,
MINISTERIAL. That which is done under the authority of a superior; opposed
to judicial; as, the sheriff is a ministerial officer bound to obey the
judicial commands of the court.
2. When an officer acts in both a judicial and ministerial capacity, he
may be compelled to perform ministerial acts in a particular way; but when
he acts in a judicial capacity, he can only be required to proceed; the
manner of doing so is left entirely to his judgment. See 2 Fairf. 377; Bac.
Ab. Justices of the Peace, E; 1 Conn. 295; 3 Conn. 107; 9 Conn. 275; 12
Conn. 464; also Judicial; Mandamus; Sheriff.
MINISTERIAL TRUSTS. These which are also called instrumental trusts, demand
no further exercise of reason or understanding, than every intelligent agent
must necessarily employ as to convey an estate. They are a species of
special trusts, distinguished from discretionary trusts, which necessarily
require much exercise of the understanding. 2 Bouv. Inst. A. 1896.
MINOR, persons. One under the age of twenty-one years, while in a state of
infancy; one who has not attained the age of a major. The terms major and
minor, are more particularly used in the civil law. The common law terms are
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adult and infant. See Infant.
MINORITY. The state or condition of a minor; infancy. In another sense, it
signifies the lesser number of votes of a deliberative assembly; opposed to
majority. (q.v.)
MINT. The place designated by law, where money is coined by authority of the
government of the United States.
2. The mint was established by the Act of April 2, 1792, 1 Story's L.
U. S. 227, and located at Philadelphia, where, by virtue of sundry acts of
congress, it still remains. Act of April 24, 1800, 1 Story, 770; Act of
March 3, 1801, 1 Story, 816; Act of May 19, 1828, 4 Sharsw. cont. of Story's
L. U. S. 2120.
3. Below will be found a reference to the acts of congress now in force
in relation to the mint. Act of January 18, 1837, 4 Sharsw. cont. of Story,
L. U. S. 2120; Act of May 19, 1828, 4 Id. 2120; Act of May 3, 1835; Act of
February 13, 1837; Act of March 3, 1849; Act of March 3, 1851, s. 11. Vide
Coin; Foreign Coin; Money.
MINUTE, measures. In divisions of the circle or angular measures, a minute
is equal to sixty seconds, or one sixtieth part of a degree.
2. In the computation of time, a minute is equal to sixty seconds, or
the sixtieth part of an hour. Vide Measure.
MINUTE, practice. A memorandum of what takes place in court; made by
authority of the court. From these minutes the record is afterwards made up.
2. Toullier says, they are so called because the writing in which they
were originally, was small, that the word is derived, from the Latin minuta,
(scriptura) in opposition to copies which were delivered to the parties, and
which were always written in a larger hand. 8 Toull. n. 413.
3. Minutes are not considered as any part of the record. 1 Ohio R. 268.
See 23 Pick. R. 184.
MINUTE BOOK. A book kept by the clerk or prothonotary of a court, in which
minutes of its proceedings are entered. It has been decided that minutes are
no part of the record. 1 Ohio R. 268.
MIRROR DES JUSTICES. The Mirror of Justices, a treatise written during the
reign of Edward II. Andrew Horne is its reputed author. It was first
published in 1642, and in 1768 it was translated into English by William
Hughes. Some diversity of opinion seems to exist as to its merits. Pref. to
9 & 10 Co. Rep. As to the history of this celebrated book see St. Armand's
Hist. Essays on the Legislative power of England, 68, 59.
MIS. A syllable which prefixed to some word signifies some fault or defect;
as, misadventure, misprision, mistrial, and the like.
MISADVENTURE, crim. law, torts. An accident by which an injury occurs to
another.
2. When applied to homicide, misadventure is the act of a man who, in
the performance of a lawful act, without any intention to do harm, and after
using proper precaution to prevent danger, unfortunately kills another
person. The act upon which the death ensues, must be neither malum in se,
nor malum prohibitum. The usual examples under this head are, 1. When the
death ensues from innocent recreations. 2. From moderate and lawful
correction (q.v.) in foro domestico. 3. From acts lawful and indifferent
in themselves, done with proper and ordinary caution. 4 Bl. Com. 182; 1
East, P C. 221.
MISBEHAVIOUR. Improper or unlawful conduct. See 2 Mart. N. S. 683.
2. A party guilty of misbehaviour; as, for example, to threaten to do
injury to another, may be bound to his good behaviour and thus restrained.
See Good Behaviour.
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3. Verdicts are not unfrequently set aside on the ground of
misbehaviour of jurors; as, when the jury take out with them papers which
were not given in evidence, to the prejudice of one of the parties. Ld.
Raym. 148. When they separate before they have agreed upon their verdict. 3
Day, 237, 310., When they cast lots for a verdict; 2 Lev. 205; or, give
their verdict because they have agreed to give it for the amount ascertained
by each juror putting down a sum, adding the whole together, and then
dividing by twelve the number of jurors, and giving their verdict for the
quotient. 15 John. 87. See Bac. Ab. Verdict, H.
4. A verdict will be set aside if the successful party has been guilty
of any misbehaviour towards the jury; as, if he say to a juror, "I hope you
will find a verdict for me;" or "the matter is clearly of my side." 1 Vent.
125; 2 Roll. Ab. 716, pl. 17. See Code, 166, 401; Bac. Ab. Verdict, I.
MISCARRIAGE, med. jurisp. By this word is technically understood the
expulsion of the ovum or embryo from the uterus within the first six weeks
after conception; between that time and before the expiration of the sixth
month, when the child may possibly live, it is termed abortion. When the
delivery takes place soon after the sixth month, it is denominated premature
labor. But the criminal act of destroying the foetus at any time before
birth, is termed in law, procuring miscarriage. Chit. Med. Jur. 410; 2
Dunglison's Human Physiology, 364. Vide Abortion; Foetus.
MISCOGNlSANT. This word, which is but little used, signifies ignorant or not
knowing. Stat. 32 H. VIII. c. 9.
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MISJOINDER, pleading. Misjoinder of causes of action, or counts, consists in
joining, in different counts in one declaration, several demands, which the
law does not permit to be joined, to enforce several distinct, substantive
rights of recovery; as, where a declaration joins a count in trespass with
another in case, for distinct wrongs or a count in tort, with another in
contract. Gould. 6n PI. c. 4, Sec. 98; Archb. Civ. PI. 61, 78 176; Serg. and
Rawle, 358; Dane's Ab. Index, h.t.
2. Misjoinder of parties, consists in joining as plaintiffs or
defendants, persons, who have not a joint interest. When the misjoinder
relates to the plaintiffs, the defendants may, at common law, plead the
matter in abatement, whether the action be real; 12 H. IV., 15; personal;
Johns. Ch. R. 350, 438; 12 John. R. 1; 2 Mass. R. 293; or mixed; or it will
be good cause of nonsuit at the trial. 3 Bos. & Pull. 235. Where the
objection appears upon the face of the declaration, the defendant may demur
generally; 2 Saund. 145; or move in arrest of judgment; or bring a writ of
error.
3. When in actions ex contractu against several, there is a misjoinder
of the defendants, as if there be too many persons made defendants, and the
objection appears on the pleadings, either of the defendants may demur, move
in arrest of judgment, or support a writ of error; and, if the objection do
not appear on the pleadings, the plaintiff may be nonsuited upon the trial,
if he fail in proving a joint contract. 5 Johns. R. 280; 2 Johns. R. 213; 11
Johns. R. 101; 5 Mass. R. 270.
4. In actions ex delicto, the misjoinder cannot in general be objected
to, because in actions for torts, one defendant may be found guilty and the
others acquitted. Archb. Civ. Pl. 79. As to the cases in which a misjoinder
may be aided by a nolle prosequi, see 2 Archb. Pr. 218-220.
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MISSING SHIP, mar. law. When a ship or other vessel has been at sea for a
much longer time than she ought to have been, she is presumed to have
perished there with all on board, and such a vessel is called a missing
ship.
2. There is no precise time fixed as to when the presumption is to
arise, and this must depend upon the circumstances of each case. 2 Str. R.
1199; Park. Ins. 63; Marsh. Ins. 488; 2 Johns. R. 150; 1 Caines' R. 525;
Holt's N. P. Rep. 242.
MISSISSIPPI. The name of one of the new states of the United States of
America. This state was admitted into the Union, by a resolution of
congress, passed the 10th day of December, 1817; 3 Story's L. U. S. 1716; by
which it is "Resolved, that the state of Mississippi, shall be one, and is
hereby declared to be one of the United States of America, and admitted into
the Union on an equal footing with these original states, in all respects
whatever."
2. The constitution of this state was adopted at the town of
Washington, the 15th day of August, 1817. It was revised by a convention,
and adopted on the 26th day of October, 1832, when it went into operation.
3. By the second article of the constitution, a provision is made for
the distribution of powers as follows, namely;
Sec. 1. The powers of the government of the state of Mississippi, shall
be divided into three distinct departments, and each of them confided to a
separate body of magistracy; to wit; those which are, legislative to one,
those which are judicial to another, and those which are executive to
another.
4.-2. No person, or collection of persons, being of one of these
departments, shall exercise any power properly belonging to either of the
others, except in the instances hereinafter expressly directed or permitted.
5.-1st. The legislative power of this state is vested in two distinct
branches the one styled "the senate" the other, "the house of
representatives;" and both together, "the legislature of the state of
Mississippi.
6. The following regulations, contained in the third article of the
constitution, apply to both branches of the legislature.
7.-Sec. 16. Each house may determine the rules of its own proceedings
punish members for disorderly behaviour, and, with the consent of two-
thirds, expel a member, but not a second time for the same cause; and shall
have all other powers necessary for a branch of the legislature of a free
and independent state.
8.-Sec. 17. Each house shall keep a journal of its proceedings, and
publish the same; and the yeas and nays of the members of either house, on
any question, shall, at the desire of any three members present, be entered
on the journal.
9.-Sec. 18. When vacancies happen in either house, the governor, or
the person exercising the powers of the governor, shall issue writs of
election to fill such vacancies.
10.-Sec. 19. Senators and representatives shall, in all cases, except
of treason, felony, or breach of the peace, be privileged from arrest during
the session of the legislature and in going to and returning from the same,
allowing one day for every twenty miles such member may reside from the
place at which the legislature is convened.
11.-Sec. 20. Each house may punish, by imprisonment, during the
session, any person, not a member, for disrespectful or disorderly behaviour
in its presence, or for obstructing any of its proceedings: Provided, such
imprisonment shall not, at any one time, exceed forty-eight hours.
12.-Sec. 21. The doors of each house shall be open, except on such
occasions of great emergency, as, in the opinion of the house, may require
secrecy.
13.-Sec. 22. Neither house shall, without the consent of the other,
adjourn for more than three days, nor to any other place than that in which
they may be sitting.
14.-Sec. 23. Bills may originate in either house, and be amended,
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altered or rejected by the other, but no bill shall have the force of a law,
until on three several days, it be read in each house, and free discussion
be allowed thereon, unless four-fifths of the house in which the bill shall
be pending, may deem it expedient to dispense with this rule; and every bill
having passed both houses, shall be signed by the speaker and president of
their respective houses.
15.-Sec. 24. All bills for raising revenue shall originate in the
house of representatives, but the senate may amend or reject them as other
bills.
16.-Sec. 25. Each member of the legislature shall receive from the
public treasury a compensation for his services, which may be increased or
diminished by law, but no increase of compensation shall take effect during
the session at which such increase shall have been made.
17.-Sec. 26. No senator or representative shall, during the term for
which be shall have been elected, nor for one year thereafter, be appointed
to any civil office of profit under this state, which shall have been
created, or the emoluments of which shall have been increased, during such
term, except such offices as may be filled, by elections by the people; and
no member of either house of the legislature shall, after the commencement
of the first session of the legislature after his election and during the
remainder of the term for which he is elected, be eligible to any office or
place, the appointment to which may be made in whole or in part by either
branch of the legislature.
18.-Sec. 27. No judge of any court of law or equity, secretary of
state, attorney general, clerk of any court of record, sheriff or collector,
or any, person holding a lucrative office under the United States or this
state, shall be eligible to the legislature: Provided, That offices in the
militia, to which there is attached no annual salary, and the office of
justice of the peace, shall not be deemed lucrative.
19.-Sec. 28. No person who hath heretofore been, or hereafter may be,
a collector or holder of public moneys, shall have a seat in either house of
the legislature, until such person shall have accounted for, and paid into
the treasury, all sums for which he may be accountable.
20.-Sec. 29. The first election for senators and representatives shall
be general throughout the state, and shall be held on the first Monday and
day following in November 1833; and thereafter, there shall be biennial
elections for senators to fill the places of those whose term of service may
have expired.
21.-Sec. 30. The first and all future sessions of the legislature
shall be held in the town of Jackson, in the county of Hinds, until the year
1850. During the first session thereafter, the legislature shall have power
to designate by law the permanent seat of government: Provided, however,
That unless such designation be then made by law, the seat of government
shall continue permanently at the town of Jackson. The first session shall
commence on the third Monday in November, in the year 1833. And in every two
years thereafter, at such time as may be prescribed by law.
22.-1. The senate. Under this lead will be considered the
qualification of senators; their number; by whom they are elected; the time
for which they are elected.
1. No person shall be a senator unless he be a citizen of the United
States; and shall have been an inhabitant of this state for four years next
preceding his election, and the last year thereof a resident of the district
for which he shall be chosen, and have attained the age of thirty years.
Art. 3, s. 14.
2. The number of senators shall never be less than one-fourth, nor more
than one-third, of the whole number of representatives. Art. 3, s. 10. 3.
The qualifications of electors is as follows: every free white male person
of the age of twenty-one years or upwards, who shall be a citizen of the
United States, and shall have resided in this state one year next preceding
an election, and the last four months within the county, city, or town in
which he offers to vote, shall be deemed a qualified elector. Art. 3, s. 1.
4. The senators shall be chosen for four years, and on their being convened
in consequence of the first election, they shall be divided by lot from
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their respective districts into two classes, as nearly equal as can be. And
the seats of the senators of the first class shall be vacated at the
expiration of the second year.
23.-2. The house of representatives, will be considered in the same
order that has been observed in relation, to the senate. 1. No person shall,
be a representative unless he be a citizen of the United States, and shall
have been an inhabitant of this state two years next preceeding his
election, and the last year thereof a resident of the county, city or town
for which be shall be chosen; and shall have attained the age of twenty-one
years. Art. 3, s. 7. 2. The number of representatives shall not be less than
thirty-six, nor more than one hundred. Art. 3, s. 9. 3. They are elected by
the same electors who elect senators. Art. 3, s. 1. 4. The representatives
are chosen every two years on the first Monday and day following in
November. They serve two years from the day of the commencement of the
general election and no longer. Art. 3, s. 5, and 6.
24.-2d. The judicial power. By the fourth article of the constitution,
the judicial power is distributed as follows, namely:
Sec. 1. The judicial power of this state shall be vested in one high
court of errors and appeals, and such other courts of law and equity as are
hereafter provided for in this constitution.
25.-Sec. 2. The high court of errors and appeals shall consist of
three judges, any two of whom shall form a quorum. The legislature shall
divide the state into three districts, and the qualified electors of each
district shall elect one of said judges for the term of six years.
26.-Sec. 3. The office of one of said judges shall be vacated in two
years, and of one in four years, and of one in six years, so that at the
expiration of every two years, one of said judges shall be elected as
aforesaid.
27.-Sec. 4. The high court of errors and appeals shall have no
jurisdiction, but such as properly belongs to a court of errors and appeals.
28.-Sec. 5. All vacancies that may occur in said court, from death,
resignation or removal, shall be filled by election as aforesaid. Provided,
however, that if the unexpired term do not exceed one year, the vacancy
shall be filled by executive appointment.
29.-Sec. 6. No person shall be eligible to the office of judge of the
high court of errors and appeals, who shall not have attained, at the time
of his election, the age of thirty years.
30.-Sec. 7. The high court of errors and appeals shall be held twice
in each year, at such place as the legislature shall direct, until the year
eighteen hundred and thirty-six, and afterwards at the seat of government of
the state.
31.-Sec. 8. The secretary of state, on receiving all the official
returns of the first election, shall proceed, forthwith, in the presence and
with the assistance of two justices of the peace, to determine by lot among
the three candidates having the highest number of votes, which of said
judges elect shall serve for the term of two years, which shall serve for
the term of four years, and which shall serve for the term of six years, and
having so determined the same, it shall be the duty of the governor to issue
commissions accordingly.
32.-Sec. 9. No judge shall sit on the trial of any cause when the
parties or either of them shall be connected with him by affinity or
consanguinity, or when he may be interested in the same, except by consent
of the judge and of the parties; and whenever a quorum of said court are
situated as aforesaid, the governor of the state shall in such case
specially commission two or more men of law knowledge for the determination
thereof.
33.-Sec. 10. The judges of said court shall, receive for their
services a compensation to be fixed by law, which shall not be diminished
during their continuance in office.
34.-Sec. 11. The judges of the circuit court shall be elected by the
qualified electors of each judicial district, and hold their offices for the
term of four years, and reside in their respective districts.
35.-Sec. 12. No person shall be eligible to the office of judge of the
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circuit court, who shall not, at the time of his election, have attained the
age of twenty-six years.
36.-Sec. 13. The state shall be divided into convenient districts, and
each district shall contain not less than three nor more than twelve
counties.
37.-Sec. 14. The circuit court shall have original jurisdiction in all
matters, civil and criminal, within this state; but in civil cases only when
the principal of the sum in controversy exceeds fifty dollars.
38.-Sec. 15. A circuit court shall be held in each county of this
state, at least twice in each year; and the judges of said courts shall
interchange circuits with each other, in such manner as may be prescribed by
law, and shall receive for their services a compensation to be fixed by law,
which shall not be diminished during their continuance in office.
39.-Sec. 16. A separate superior court of chancery, shall be
established, with full jurisdiction in all matters of equity; Provided,
however, the legislature may give to the circuit courts of each county
equity jurisdiction in all cases where the value of the thing, or amount in
controversy, does not exceed five hundred dollars; also, in all cases of
divorce, and for the foreclosure of mortgages. The chancellor shall be
elected by the qualified electors of the whole state, for the term of six
years, and shall be at least thirty years old at the time of his election.
40.-Sec. 17. The style of all process, shall be "The state of
Mississippi," and all prosecutions shall be carried on in the name and by
the authority of "The state of Mississippi," and shall conclude "against the
peace and dignity of the same."
41.-Sec. 18. A court of probates shall be established in each county
of this state, with jurisdiction in all matters testamentary and of
administration in orphans' business and the allotment of dower, in cases of
idiocy and lunacy, and of persons non compos mentis; the judge of said
court shall be elected by the qualified electors of the respective counties,
for the term of two years.
42.-Sec. 19. The clerk of the high court, of errors and appeals shall
be appointed by said court, for the term of four years, and the clerks of
the circuit, probate, and other inferior courts, shall be elected by the
qualified electors of the respective counties, and shall hold their offices
for the term of two years.
43.-Sec. 20. The qualified electors of each county shall elect five
persons for the term of two years, who shall constitute a board of police
for each county, a majority of whom may transact business; which body shall
have full jurisdiction over roads, highways, ferries, and bridges, and all
other matters of county police, and shall order all county elections to fill
vacancies that may occur in the offices of their respective counties: the
clerk of the court of probate shall be the clerk of the board of county
police.
44.-Sec. 21. No person shall be eligible as a member of said board,
who shall not have resided one year in the county: but this qualification
shall not extend to such new counties as may hereafter be established until
one year after their organization; and all vacancies that may occur in said
board shall be supplied by election as aforesaid to fill the unexpired term.
45.-Sec. 22. The judges of all the courts of the state, and also the
members of the board of county police, shall in virtue of their offices be
conservators of the peace, and shall be by law vested with ample powers in
this respect.
46.-Sec. 23. A competent number of justices of the peace and
constables shall be chosen in each county by the qualified electors thereof,
by districts, who shall hold their offices for the term of two years. The
jurisdiction of justices of the peace shall be limited to causes in which
the principal of the amount in controversy shall not exceed fifty dollars.
In all causes tried by a justice of the peace, the right of appeal shall be
secured under such rules and regulations as shall be prescribed by law.
47.-Sec. 24. The legislature may from time to time establish, such
other inferior courts as may be deemed necessary, and abolish the same
whenever they shall deem it expedient.
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48.-Sec. 25. There shall be an attorney general elected by the
qualified electors of the state: and a competent number of district
attorneys shall be elected by qualified voters of their respective
districts, whose compensation and term of service, shall be prescribed by
law.
49.-Sec. 26. The legislature shall, provide by law for determining
contested elections of judges of the high court of errors and appeals, of
the circuit and probate courts, and other officers.
50.-Sec. 27. The judges of the several courts of this state, for
willful neglect of duty or other reasonable cause, shall be removed by the
governor on the address of two-thirds of both houses of the legislature; the
address to be by joint vote of both houses. The cause or causes for which
such removal shall be required, shall be stated at length in such address,
and on the journals of each house. The judge so intended to be removed,
shall be notified and admitted to a hearing in his own defence before any
vote for such address shall pass; the vote on such address shall be taken by
yeas and nays, and entered on the journals of each house.
51.-Sec. 28. Judges of probate, clerks, sheriffs, and other county
officers, for willful neglect of duty, or misdemeanor in office, shall be
liable to presentment or indictment by a grand jury, and trial by a petit
jury, and upon conviction shall be removed from office.
52.-3d. The chief executive power of this state shall be vested in a
governor. It will be proper to consider his qualifications; by whom he is
elected; the time for which he is elected; his rights, duties and powers;
and how, vacancies are supplied when the office of governor becomes vacant.
53.-1. The governor shall be at least thirty years of age, shall have
been a citizen of the United States for twenty years, shall have resided in
this state at least five years next preceding the day of his election, and
shall not be capable of holding the office more than four in any term of six
years. Art. 5, s. 3.
54.-2. The governor shall be elected by the qualified elector's of the
state. Art. 5, s. 2.
55.-3. He shall hold his office for two years from the time of his
installation. Art 5, s. 1.
56.-4. He shall, at stated times, receive for his services a
compensation which shall not be increased or diminished during the term for
which he shall be elected. Art. 5 s. 4.
57.-5. He shall be commander-in-chief of the army and navy in this
state, and of the militia, except when they shall be called into the service
of the United States. Art. 5, s. 5.
58.-6. He may require information in writing, from the officers in the
executive department, on any subject relating to the duties of their
respective offices. Art. 5, s. 6.
59.-7. He may, in cases of emergency, convene the legislature at the
seat of government, or at a different place, if that shall have become,
since their last adjournment, dangerous from an enemy or from disease; and
in case of disagreement between the two houses with respect to the time of
adjournment, adjourn them to such time as he shall think proper, not beyond
the day of the next stated meeting of the legislature. Art. 5, s. 7.
60.-8. He shall from time to time give to the legislature information
of the state of the government, and recommend to their consideration, such
measures as he may deem necessary and expedient. Art. 5, s. 8.
61.-9. He shall take care that the laws be faithfully executed. Art.
5, s. 9.
62.-10. In all criminal and penal cases, except in those of treason
and impeachment, he shall have power to grant reprieves and pardons, and
remit fines; and in cases of forfeiture to stay the collection until the end
of the next session of the legislature, and to remit forfeitures by and with
the advice and consent of the senate. In cases of treason he shall have
power to grant reprieves by and with the advice and consent of the senate,
but may respite the sentence until the end of the next session of the
legislature. Art. 5, s. 10.
63.-11. All commissions shall be in the name and by the authority of
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the state of Mississippi; be sealed with the great seal, and signed by the
governor, and be attested by the secretary of state. The governor is also
invested with the veto power. Art. 5, s. 15 and 16.
64. Whenever the office of governor shall become vacant by death,
resignation, removal from office, or otherwise, the president of the senate
shall exercise the office of governor until another governor shall be duly
qualified; and in case of the death, resignation, removal from office, or
other disqualifications of the president of the senate so exercising the
office of governor, the speaker of the house of representatives shall
exercise the office, until a president of the senate shall have been chosen;
and when the office of governor, president of the senate, and speaker of the
house shall become vacant, in the recess of the senate, the person acting as
secretary of state for the time being, shall by proclamation convene the
senate, that a president may be chosen to exercise the office of governor.
Art. 5, s. 17.
MISSOURI. The name of one of the new states of the United States of America.
This state was admitted into the Union by a resolution of congress, approved
March 2, 1821, 3 Story's L. U. S. 1823, by which it is resolved, that
Missouri shall be admitted into this Union on an equal footing with the
original states, in all respects whatever. To this resolution there is a
condition, which having been fulfilled, it is now useless here to repeat.
2. The convention which formed the constitution of this state assembled
at St. Louis, on Monday the 12th of June, 1820, and continued by
adjournment, till the 19th day of July, 1820, when the constitution was
adopted, establishing "an independent republic by the name of the `state of
Missouri.'"
3. The powers of the government are divided into three distinct
departments, each of which is confided to a separate magistracy. Art. 2.
4.-1st. The legislative power is vested in a general assembly, which
consists of a senate and house of representatives. 1. The senate is to
consist of not less than fourteen nor more than thirty-three members. The
senators are chosen by tho electors for the term of four years; one-half of
the senators are chosen every second year. 2. The house of representatives
is never to consist of more than one hundred members. The members are chosen
by the qualified electors every second year.
5.-2d. The executive power is vested in a governor and lieutenant-
governor. 1. The supreme executive power is vested in a chief magistrate,
styled "the governor of the state of Missouri." Art. 4, s. 1, He is elected
by the people, and holds his office for four years, and until a successor be
duly appointed and qualified. Art. 4, s. 3. He is invested with the veto
power. Art. 4, s. 10. The lieutenant-governor is elected at the same time,
in the same manner, for the same term, and is required to possess the same
qualifications as the governor. Art. 4, s. 14. He is by virtue of his office
president of the senate, and when the office of governor becomes vacant by
death, resignation, absence from the state, removal from office, refusal to
qualify, or otherwise, the lieutenant-governor possesses all the powers and
discharges all the duties of governor until such vacancy be filled, or the
governor, so absent or impeached, shall return or be acquitted. And in such
case there shall be a new election after three months previous notice.
6.-3d. The judicial powers are vested by the 5th article of the
constitution as follows:
Sec. 1. The judicial powers, as to matters of law and equity, shall be
vested in a "supreme court," in a "chancellor," in "Circuit courts," and in
such inferior tribunals as the general assembly may, from time to time,
ordain and establish.
7.-2. The supreme court, except in cases otherwise directed by this
constitution, shall have appellate jurisdiction only, which shall be
coextensive with the state, under the restrictions and limitations in this
constitution provided.
8.-3. The supreme court shall have a general superintending control
over all inferior courts of law. It shall have power to issue writs of
habeas corpus, mandamus, quo warranto, certiorari, and other original
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remedial writs; and to hear and determine the same.
9.-4. The supreme court shall consist of three judges, any two of
whom shall be a quorum, and the said judges shall be conservators of the
peace throughout the state.
10.-5. The state shall be divided into convenient districts, not to
exceed four; in each of which the supreme court shall hold two sessions
annually, at such place as the general assembly shall appoint; and when
sitting in either district, it shall exercise jurisdiction over causes
originating in that district only: provided, however, that the general
assembly may, at any time hereafter, direct by law, that the said court
shall be held at one place only.
11.-6. The circuit court shall have jurisdiction over all criminal
cases which shall not be otherwise provided for by law; and exclusive
original jurisdiction in all civil cases which shall not be cognizable
before justices of the peace, until otherwise directed by the general
assembly. It shall hold its terms in such place in each county as may be by
law directed.
12.-7. The state shall be divided into convenient circuits, for each
of which a judge shall be appointed, who, after his appointment, shall
reside, and be a conservator of the peace, within the circuit for which he
shall be appointed.
13.-8. The circuit courts shall exercise a superintending control over
all such inferior tribunals as the general assembly may establish; and over
justices of the peace in each county in their respective circuits.
14.-9. The jurisdiction of the court of chancery shall be co-extensive
with the state and the times and places of holding its sessions shall be
regulated in the same manner as those of the supreme court.
15.-10. The court of chancery shall have original and appellate
jurisdiction in all matters of equity, and a general control over executors,
administrators, guardians, and minors, subject to appeal, in all cases, to
the supreme court, under such limitations as the general assembly may by law
provide.
16.-11. Until the general assembly shall deem it expedient to
establish inferior courts of chancery, the circuit courts shall have
jurisdiction in matters of equity, subject to appeal to the court of
chancery, in such manner, and under such restrictions, as shall be
prescribed by law.
17.-12. Inferior tribunals shall be established in each county, for
the transaction of all county business; for appointing guardians; for
granting letters testamentary, and of administration; and for settling the
accounts of executors, administrators, and guardians.
18.-13. The governor shall nominate, and, by and with the advice and
consent of the senate, appoint the judges of the supreme court, the judges
of the circuit courts, and the chancellor, each of whom shall hold his
office during good behaviour, and shall receive for his services a
compensation, which shall not be diminished during his continuance in
office, and which shall not be less than two thousand dollars annually.
19.-14. No person shall be appointed a judge in the supreme court, nor
of a circuit court, nor chancellor, before he shall have attained to the age
of thirty years; nor shall any person continue to exercise the duties of any
of said offices after he shall have attained to the age of sixty-five years.
20.-15. The courts respectively shall appoint their clerks, who shall
hold their offices during good behaviour. For any misdemeanor in office,
they shall be liable to be tried and removed by the Supreme court, in such
manner as the general assembly shall by law provide.
21.-16. Any judge of the supreme court, or of the circuit court, or
the chancellor, may be removed from office on the address of two-thirds of
each house of the general assembly to the governor for that purpose; but
each house shall state on its respective journal the cause for which it
shall wish the removal of such judge or chancellor, and give him notice
thereof; and he shall have the right to be heard in his defence in such
manner as the general assembly shall by law direct; but no judge nor
chancellor shall be removed in this manner for any cause for which he might
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have been impeached.
22.-17. In each county there shall be appointed as many justices of
the peace as the public good may be thought to require. Their powers and
duties, and their duration in office, shall be regulated by law.
23.-18. An attorney general shall be appointed by the governor, by and
with the advice and consent of the senate. He shall remain in office four
years, and shall perform such duties as shall be required of him by law.
24.-19. All writs and process shall run, and all prosecutions shall be
conducted in the name of the "state of Missouri;" all writs shall be tested
by the clerk of the court from which they shall be issued, and all
indictments shall conclude, "against the peace and dignity of the state."
MISTAKE, contracts. An error committed in relation to some matter of fact
affecting the rights of one of the parties to a contract.
2. Mistakes in making a contract are distinguished ordinarily into,
first, mistakes as to the motive; secondly, mistakes as to the person, with
whom the contract is made; thirdly, as to the subject matter of the
contract; and, lastly, mistakes of fact and of law. See Story, Eq. Jur. Sec.
110; Bouv. Inst. Index, h.t.; Ignorance; Motive.
3. In general, courts of equity will correct and rectify all mistakes
in deeds and contracts founded on good consideration. 1 Ves. 317; 2 Atk.
203; Mitf. Pl. 116; 4 Vin. Ab. 277; 13 Vin. Ab. 41; 18 E. Com. Law Reps. 14;
8 Com. Digest, 75; Madd. Ch. Prac. Index, h.t.; 1 Story on Eq. ch. 5, p.
121; Jeremy's Eq. Jurisd. B. 3, part 2, p. 358. See article Surprise.
4. As to mistakes in the names of legatees, see 1 Rop. Leg. 131; Domat,
l. 4, t. 2, s. 1, n. 22. As to mistakes made in practice, and as to the
propriety or impropriety of taking advantage of them, see Chitt. Pr. Index,
h.t. As to mistakes of law in relation to contracts, see 23 Am. Jur. 146 to
166.
MISTRIAL. An erroneous trial on account of some defect in the persons
trying, as if the jury come from the wrong county or because there was no
issue formed, as if no plea be entered; or some other defect of
jurisdiction. 3 Cro. 284; Hob. 5; 2 M. & S. 270.
MISUSE OF PROPERTY. The unlawful use of property.
2. The misuse of personal property delivered lawfully to the defendant,
is a conversion which will enable the owner immediately to maintain trover.
6 Shepl. 382; 8 Leigh, 565; 3 Bouv. Inst. n. 3525.
MISUSER. An unlawful use of a right.
2. In cases of public officers and corporations, a misuser is
sufficient to cause the right to be forfeited. 2 Bl. Com. 153; 5 Pick. R.
163.
MITIGATION. To make less rigorous or penal.
2. Crimes are frequently committed under circumstances which are not
justifiable nor excusable, yet they show that the offender has been greatly
tempted; as, for example, when a starving man steals bread to satisfy his
hunger, this circumstance is taken into consideration in mitigation of his
sentence.
3. In actions for damages, or for torts, matters are frequently proved
in mitigation of damages. In an action for criminal conversation with the
plaintiff's wife, for example, evidence may be given of the wife's general
bad character for want of chastity; or of particular acts of adultery
committed by her, before she became acquainted with the defendant; 12 Mod.
R. 232; Bull. N. P. 27, 296; Selw. N. P. 25; 1 Johns. Cas, 16: or that the
plaintiff has carried on a criminal conversation with other women; Bull. N.
P. 27; or that the plaintiff's wife has made the first advances to the
defendant, 2 Esp. N. P. C. 562; Selw. N. P. 25. See 3 Am. Jur. 287, 313;
Bouv. Inst. Index, h.t.
4. In actions for libel, although the defendant cannot under the
general issue prove the crime, which is imputed to the plaintiff, yet he is
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in many cases allowed to give evidence of the plaintiff's general character
in mitigation of damages. 2 Campb. R. 251; 1 M. & S. 284.
MITIOR SENSUS, construction. The more lenient sense. It was formerly held in
actions for libel and slander, that when two or more constructions could be
put upon the words, one of which would not be actionable the words were to
be so construed, for verba accipienda sunt in mitiore sensu. 4 Co. 13, 20.
It is now, however, well established, that they are not to be taken in the
more lenient, or more severe sense, but in the sense which fairly belongs to
them, and which they were intended to convey. 2 Campb. 403; 2 T. R. 206.
MITTER, law-French. To put, to send, or to pass; as mitter' l'estate, to
pass the estate; mitter le droit, to pass a right. 2 Bl. Com. 324; Bac. Ab.
Release, C; Co. Lit. 193, 273, b. Mitter a large, to put or, set at large.
Law French Dict. h.t.
MITTIMUS, English practice. A writ enclosing a record sent to be tried in a
county palatine; it derives its name from the Latin word mittimus, "we
send." It is the jury process of these counties, and commands the proper
officer of the county palatine to command the sheriff to summon the jury for
the trial of the cause, and to return the record, &c. 1 M. R. 278; 2 M. R.
88.
MITTIMUS, crim. law, practice. A precept in writing, under the hand and seal
of a justice of the peace, or other competent officer, directed to the
gaoler or keeper of a prison, commanding him to receive and safely keep, a
person charged with an offence therein named until he shall be delivered by
due course of law. Co. Litt. 590.
MIXED. To join; to mingle. A compound made of several simples is said to be
something mixed.
MIXED ACTIONS, practice. An action partaking of a real and personal action
by which real property is demanded, and damages for a wrong sustained: an
ejectment is of this nature. 4 Bouv. Inst. n. 3650.
MIXED OR COMPOUND LARCENY, crim. law. A larceny which has all the properties
of simple larceny, and is accompanied with one or both the aggravations of
violence to the person or taking from the house.
MIXED GOVERNMENT. A government composed of some of the powers of a
monarchical, aristocratical, and democratical government. See Government.
MIXED PROPERTY. That kind of property which is not altogether real nor
personal, but a compound of both. Heir-looms, tomb-stones, monuments in a
church, and title deeds to an estate, are of this nature. 1 Ch. Pr. 95; 2
Bl. Com. 428; 3 Barn. Adolph. 174; 4 Bing. R. 106; S. C. 13 Eng. Com. Law
Rep. 362.
MIXT CONTRACT, civil law. One in which one of the parties confers a benefit
on the other, and requires of the latter something of less value than what
he has given; as a legacy charged with something of less value than the
legacy itself. Poth. Oblig. n. 12. See Contract.
MIXTION. The putting of different goods or chattels together in such a
manner that they can no longer be separated; as putting the wines of two
different persons into the same barrel, the grain of several persons into
the same bag, and the like. 2. The intermixture may be occasioned by the
willful act of the party, or owner of one of the articles; by the willful
act of a stranger; by the negligence of the owner or a stranger; of by
accident. See, as to the rights of the parties under each of these
circumstances, the article Confusion of goods. Vide Aso & Man. Inst. B. 2,
t.
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MOBBING AND RIOTING, Scotch law. The general term mobbing and rioting
includes all those convocations of the lieges for violent and unlawful
purposes, which are attended with injury to the persons or property of the
lieges, or terror and alarm to the neighborhood in which it takes place. The
two phrases are usually placed together, but, nevertheless, they have
distinct meanings, and are sometimes used separately in legal language; the
word mobbing being peculiarly applicable to the unlawful assemblage and
violence of a number of persons, and that of rioting to the outrageous
behaviour of a single individual. Alison, Prin. C. Law of Scotl. c. 23, p.
509.
MODEL. A machine made on a small scale to show the manner in which it is to
be worked or employed.
2. The Act of Congress of July 4, 1836, section 6, requires an inventor
who is desirous to take out a patent for his invention, to furnish a model
of his invention, in all cases which admit of representation by model, of a
convenient size to exhibit advantageously its several parts.
MODERATE CASTIGAVIT, pleading. The name of a plea in trespass by which the
defendant justifies an assault and battery, because he moderately corrected
the plaintiff, whom he had a right to correct. 2 Chit. Pl. 676; 2 Bos. &
Pull. 224. Vide Correction, and 15 Mass. R. 347; 2 Phil. Ev. 147; Bac. Ab.
Assault, &c. C.
2. This plea ought to disclose, in general terms, the cause which
rendered the correction expedient. 3 Salk. 47.
MODERATOR. A person appointed to preside at a popular meeting; sometimes he
is called a chairman.
MODIFICATION. A change; as the modification of a contract. This may take
place at the time of making the contract by a condition, which shall have
that effect; for example, if I sell you one thousand bushels of corn, upon
condition that any crop shall produce that much, and it produces only eight
hundred bushels, the contract is modified, it is for eight hundred bushels,
and no more.
2. It may be modified by the consent of both parties, after it has been
made. See 1 Bouv. Inst. n. 733.
MODO ET FORMA, pleading. In manner and form. These words are used in
tendering an issue in a civil case.
2. Their legal effect is to put in issue all material circumstances and
no other, they may therefore be always used with safety.
3. These words are sometimes of the substance of the issue and
sometimes merely words of form. When they are of the substance of the issue,
they put in issue the circumstances alleged as concommitants of the
principal matter denied by the pleader, such as time, place, manner, &c.
When not of the substance of the issue they do not put in issue such
circumstances. Bac. Ab. Plea, G 1; Lawes' Pl. 120; Hardr. 39. To determine
when they are of the substance of the issue and when not so, the established
criterion is, that when the circumstances of manner, time, place, &c.
alleged in connexion with the principal fact traversed, are originally and,
in themselves material, and therefore necessary to be proved as stated, the
words modo et forma are of the substance of the issue, and do, consequently,
put those concommitants in issue; but that when such concommitants or
circumstances are not in themselves material, and therefore not necessary to
be proved as stated, the words modo et forma, are not of the substance of
the issue, and consequently do not put them in issue. Lawes on Pl. 120; and
see Gould, Pl. c. 6, Sec. 22; Steph. Pl. 213; Dane's Ab. Index, h.t.; Kitch.
232. See Bac. Ab. Verdict, P; Vin. Ab. Modo et Forma.
MODUS, civil law. Manlier; means; way.
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MODUS, eccl. law. Where there is by custom a particular manner of tithing
allowed, different from the general law of taking tithes in kind, as a
pecuniary compensation, or the performance of labor, or when any means are
adopted by which the general law of tithing is altered, and a new method of
taking them is introduced, it is called a modus decimandi, or special manner
of taking tithes. 2 Bl. Com. 29.
MOHATRA, French law. The name of a fraudulent contract, made to cover a
usurious loan of money.
2. It takes place when an individual buys merchandise from another oil
a credit at a high price, to sell it immediately to the first seller, or to
a third person, who acts as his agent, at a much less price for cash. 16
Toull. n. 44; 1 Bouv. Inst. n. 1118.
MOIETY. The half of anything; as, if a testator bequeath one moiety of his
estate to A, and the other to B, each shall take an equal part. Joint
tenants are said to hold by moieties. Lit. 125; 3 M. G. & S. 274, 283
MONOGAMY. A marriage contracted between one man and one woman, in exclusion
of all the rest of mankind; it is used in opposition to bigamy and polygamy.
(q.v.) Wolff, Dr. de la Nat. Sec. 857. The state of having only one husband
or one wife at one time.
MONOGRAM. A character or cipher composed of one or more letters interwoven,
being an abbreviation of a name.
2. A signature made by a monogram would perhaps be binding, provided it
could be proved to have been made and intended as a signature. 1 Denio, R.
471. And there seems to be no reason why such a signature should not be as
binding as one which is altogether illegible. See Initial; Mark; Signature.
MONOMANIA. med. jur. Insanity only upon a particular subject; and with a
single delusion of the mind.
2. The most simple form of this disorder is that in which the patient
has imbibed some single notion, contrary to common sense and to his own
experience, and which seems, and no doubt really is, dependent on errors of
sensation. It is supposed the mind in other respects retains its
intellectual powers. In order to avoid any civil act done, or criminal
responsibility incurred, it must manifestly appear that the act in question
was the effect of monomania. Cyclop. Pract. Medicine, title Soundness and
Unsoundness of Mind; Dr. Ray on Insanity, Sec. 203; 13 Ves. 89; 3 Bro. C. C.
444; 1 Addams' R. 283; Hagg. R. 18; 2 Addams' R. 102; 2 Addams' R. 79, 94,
209; 5 Car. & P. 168; Dr. Burrows on Insanity, 484, 485. Vide Delusion;
Mania; and Trebuchet, Jur. de la Med. 55 to 58.
MONOPOLY, commercial law. This word has various significations. 1. It is the
abuse of free commerce by which one or more individuals have procured the
advantage of selling alone all of a particular kind of merchandise, to the
detriment of the public.
2.-2. All combinations among merchants to raise the price of
merchandise to the injury of the public, is also said to be a monopoly.
3.-3. A monopoly is also an institution or allowance by a grant from
the sovereign power of a state, by commission, letters patent, or otherwise,
to any person, or corporation, by which the exclusive right of buying,
selling, making, working, or using anything, is given. Bac. Abr. h.t.; 3
Inst. 181.
4. The constitutions of Maryland, North Carolina, and Tennessee,
declare that "monopolies are contrary to the genius of a free government,
and ought not to be allowed." Vide art. Copyright; Patent.
MONSTER, physiology, persons. An animal which has a conformation contrary to
the order of nature. Dunglison's Human Physiol. vol. 2, p. 422.
2. A monster, although born of a woman in lawful wedlock, cannot
inherit. Those who have however the essential parts of the human form and
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have merely some defect of coformation, are capable of inheriting, if
otherwise qualified. 2 Bl. Com. 246; 1 Beck's Med. Jurisp. 366; Co. Litt. 7,
8; Dig. lib. 1, t. 5, l. 14; 1 Swift's Syst. 331 Fred. Code, Pt. 1, b. 1, t.
4, s. 4.
3. No living human birth, however much it may differ from human shape,
can be lawfully destroyed. Traill. Med. Jur. 47, see Briand, Med. Leg. 1ere
part. c. 6, art. 2, Sec. 3; 1 Fodere, Med. Leg. Sec. 402-405.
MORAL OBLIGATION. A duty which one owes, and which he ought to perform, but
which he is not legally bound to fulfill.
2. These obligations are of two kinds 1st. Those founded on a natural
right; as, the obligation to be charitable, which can never be enforced by
law. 2d. Those which are supported by a good or valuable antecedent
consideration; as, where a man owes a debt barred by the act of limitations,
this cannot be recovered by law, though it subsists in morality and
conscience; but if the debtor promise to pay it, the moral obligation is a
sufficient consideration for the promise, and the creditor may maintain an
action of assumpsit, to recover the money. 1 Bouv. Inst. n. 623.
MORATUR, IN LEGE. He demurs in law. He rests on the pleadings of the case,
and abides the judgment of the court.
MORGANTIC MARRIAGE. During the middle ages, there was an intermediate estate
between matrimony and concubinage, known by this name. It is defined to be a
lawful and inseparable conjunction of a single man, of noble and illustrious
birth, with a single woman of an inferior or plebeian station, upon this
condition, that neither the wife nor children should partake of the title,
arms, or dignity of the husband, nor succeed to his inheritance, but should
have a certain allowance assigned to them by the morgantic contract. The
marriage ceremony was regularly performed; the union: was for life and
indissoluble; and the children were considered legitimate, though they could
not inherit. Fred. Code, book 2, art. 3; Poth. Du Marriage, 1, c. 2, s. 2;
Shelf. M. & D. 10; Pruss. Code, art. 835.
MORT D'ANCESTOR. An ancient and now almost obsolete remedy in the English
law. An assize of mort d'ancestor was a writ which was sued out where, after
the decease of a man's ancestor, a stranger abated, and entered into the
estate. 1, Co. Litt. 159. The remedy in such case is now to bring ejectment.
MORTGAGE, contracts, conveyancing. Mortgages are of several kinds: as the
concern the kind of property, mortgaged, they are mortgages of lands,
tenements, and, hereditaments, or of goods and chattels; as they affect the
title of the thing mortgaged, they are legal and equitable.
2. In equity all kinds of property; real or personal, which are capable
of an absolute sale, may be the subject of a mortgage; rights in remainder
and reversion, franchises, and choses in action, may, therefore, be
mortgaged; But a mere possibility or expectancy, as that of an heir, cannot.
2 Story, Eq. Jur. Sec. 1021; 4 Kent, Com. 144; 1 Powell, Mortg. 17, 23; 3
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Meri. 667.
3. A legal mortgage of lands may be described to be a conveyance of
lands, by a debtor to his creditor, as a pledge and security for the
repayment of a sum of money borrowed, or performance of a covenant; 1 Watts,
R. 140; with a proviso, that such conveyance shall be void on payment of the
money and interest on a certain day, or the performance of such covenant by
the time appointed, by which the conveyance of the land becomes absolute at
law, yet the, mortgagor has an equity of redemption, that is, a right in
equity on the performance of the agreement within a reasonable time, to call
for a re-conveyance of the land. Cruise, Dig. t. 15, c. 1, s. 11; 1 Pow. on
Mortg. 4 a, n.; 2 Chip. 100; 1 Pet. R. 386; 2 Mason, 531; 13 Wend. 485; 5
Verm. 532; 1 Yeates, 579; 2 Pick. 211.
4. It is an universal rule in equity that once a mortgage, always a
mortgage; 2 Cowen, R. 324; 1 Yeates, R. 584; every attempt, therefore, to
defeat the equity of redemption, must fail. See Equity of Redemption.
5. As to the form, such a mortgage must be in writing, when it is
intended to convey the legal title. 1 Penna. R. 240. It is either in one
single deed which contains the whole contract -- and which is the usual form
-- or, it is two separate instruments, the one containing an absolute
conveyance, and the other a defeasance. 2 Johns. Ch. Rep. 189; 15 Johns. R.
555; 2 Greenl. R. 152; 12 Mass. 456; 7 Pick. 157; 3 Wend, 208; Addis. 357; 6
Watts, 405; 3 Watts, 188; 3 Fairf. 346; 7 Wend. 248. But it may be observed
in general, that whatever clauses or covenants there are in a conveyance,
though they seem to import an absolute disposition or conditional purchase,
yet if, upon the whole, it appears to have been the intention of the parties
that such conveyance should be a mortgage only, or pass an estate
redeemable, a court of equity will always so construe it. Vern. 183, 268,
394; Prec Ch. 95; 1 Wash. R 126; 2 Mass. R. 493; 4 John. R. 186; 2 Cain. Er.
124.
6. As the money borrowed on mortgage is seldom paid on the day
appointed, mortgages have now become entirely subject to the court of
chancery, where it is an established rule that the mortgagee holds the
estate merely as a pledge or security for the repayment of his money;
therefore a mortgage is considered in equity as personal estate.
7. The mortgagor is held to be the real owner of the land, the debt
being considered the principal, and the land the accessory; whenever the
debt is discharged, the interest of the mortgagee in the lands determines of
course, and he is looked on in equity as a trustee for the mortgagor.
8. An equitable mortgage of lands is one where the mortgagor does not
convey regularly the land, but does some act by which he manifests his
determination to bind the same for the security of a debt he owes. An
agreement in writing to transfer an estate as a security for the repayment
of a sum of money borrowed, or even a deposit of title deeds, and a verbal
agreement, will have the same effect of creating an equitable mortgage. 1
Rawle, Rep. 328; 5 Wheat. R. 284; 1 Cox's Rep. 211. But in Pennsylvania
there is no such a thing as an equitable mortgage. 3 P. S. R. 233. Such an
agreement will be carried into execution in equity against the mortgagor, or
any one claiming under him with notice, either actual or constructive, of
such deposit having been made. 1 Bro. C. C. 269; 2 Dick. 759; 2 Anstr. 427;
2 East, R. 486; 9 Ves. jr. 115; 11 Ves. jr. 398, 403; 12 Ves. jr. 6, 192; 1
John. Cas. 116; 2 John. Ch. R. 608; 2 Story, Eq. Jur. Sec. 1020. Miller, Eq.
Mortg. passim.
9. A mortgage of goods is distinguishable from a mere pawn. 5 Verm.
532; 9 Wend. 80; 8 John. 96. By a grant or conveyance of goods in gage or
mortgage, the whole legal title passes conditionally to the mortgagee, and
if not redeemed at the time stipulated, the title becomes absolute at law,
though equity will interfere to compel a redemption. But, in a pledge, a
special property only passes to the pledgee, the general property remaining
in the pledger. There have been some cases of mortgages of chattels, which
have been held valid without any actual possession in the mortgagee; but
they stand upon very peculiar grounds and may be deemed exceptions to the
general rule. 2 Pick. R. 607; 5 Pick. R. 59; 5 Johns. R. 261; Sed vide 12
Mass. R. 300; 4 Mass. R. 352; 6 Mass. R. 422; 15 Mass. R. 477; 5 S. & R.
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275; 12 Wend. 277: 15 Wend. 212, 244; 1 Penn. 57. Vide, generally,, Powell
on Mortgages; Cruise, Dig. tit. 15; Viner, Ab. h.t.; Bac. Ab. h.t., Com.
Dig. h.t.; American Digests, generally, h.t.; New, York Rev. Stat. p. 2,
c. 3; 9 Wend. 80; 9 Greenl. 79; 12 Wend. 61; 2 Wend. 296; 3 Cowen, 166; 9
Wend. 345; 12 Wend. 297; 5 Greenl. 96; 14 Pick. 497; 3 Wend. 348; 2 Hall,
63; 2 Leigh, 401; 15 Wend. 244; Bouv. Inst. Index, h.t.
10. It is proper to, observe that a conditional sale with the right to
repurchase very nearly resembles a mortgage; but they are distinguishable.
It is said that if the debt remains, the transaction is a mortgage, but if
the debt is extinguished by mutual agreement, or the money advanced is not
loaned, but the grantor has a right to refund it in a given time, and have a
reconveyance, this is a conditional sale. 2 Edw. R. 138; 2 Call, R. 354; 5
Gill & John. 82; 2 Yerg. R. 6; 6 Yerg. R. 96; 2 Sumner, R. 487; 1 Paige, R.
56; 2 Ball & Beat. 274. In cases of doubt, however, courts of equity will
always lean in favor of a mortgage. 7 Cranch, R. 237; 2 Desaus. 564.
11. According to the laws of Louisiana a mortgage is a right granted to
the creditor over the property of his debtor, for the security of his debt,
and gives him the power of having the property seized and sold in default of
payment. Civ. Code of Lo. art. 3245.
12. Mortgage is conventional, legal or judicial. 1st. The conventional
mortgage is a contract by which a person binds the whole of his property, or
a portion of it only, in favor of another, to secure the execution of some
engagement, but without divesting himself of the possession. Civ. Code, art.
3257.
13.-2d. Legal mortgage is that which is created by operation of law:
this is also called tacit mortgage, because it is established by the law,
without the aid of any agreement. Art. 3279. A few examples will show the
nature of this mortgage. Minors, persons interdicted, and absentees, "have a
legal mortgage on the property of their tutors and curators, as a security
for their administration; and the latter have a mortgage on the property of
the former for advances which they have made. The property of persons who,
without being lawfully appointed curators or tutors of minors, &c.,
interfere with their property, is bound by a legal mortgage from the day on
which the first act of interference was done.
14.-3d. The judicial mortgage is that resulting from judgments,
whether these be rendered on contested cases or by default, whether they be
final or provisional, in favor of the person obtaining them. Art. 3289.
15. Mortgage, with respect to the manner in which it binds the property,
is divided into general mortgage, or special mortgage. General mortgage is
that which binds all the property, present or future, of the debtor. Special
mortgage is that which binds only certain specified property. Art. 3255.
16. The following objects are alone susceptible of mortgage: 1.
Immovables, subject to alienation, and their accessories considered likewise
as immovable. 2. The usufruct of the same description of property with its
accessories during the time of its duration. 3. Slave's. 4. Ships and other
vessels. Art. 3256.
MORTGAGEE, estates, contracts. He to whom a mortgage is made.
2. He is entitled to the payment of the money secured to him by the
mortgage; he has the legal estate in the land mortgaged, and may recover it
in ejectment, on the other hand he cannot commit waste; 4 Watts, R. 460; he
cannot make leases to the injury of the mortgagor; and he must account for
the profits he receives out of the thing mortgaged when in possession.
Cruise, Dig. tit. 15, c. 2.
MORTGAGOR, estate's, contracts. He who makes a mortgage.
2. He has rights, and is liable to certain duties as such. 1. He is
quasi tenant, at will; he is entitled to an equity of redemption after
forfeiture. 2. He cannot commit waste, nor make a lease injurious to the
mortgagee. As between the mortgagor and third persons, the mortgagor is
owner of the land. Dougl. 632; 4 McCord, R. 310; 3 Fairf. R. 243; but see 3
Pick. R. 204; 1 N. H. Rep. 171; 2 N. H. Rep. 16; 10 Conn. R. 243; 1 Vern. 3;
2 Vern. 621; 1 Atk. 605. He can, however, do nothing which will defeat the
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rights of the mortgagee, as, to make a lease to bind him. Dougl. 21. Vide
Mortgagee; 2 Jack. & Walk. 194.
MORTUUS EST. A return made by the sheriff, when the defendant is dead, as an
excuse for not executing the writ. 4 Watts, 270, 276.
MOTHER, domestic relations. A woman who has borne a child.
2. It is generally the duty of a mother to support her child, when she
is left a widow, until he becomes of age, or is able to maintain himself; 8
Watts, R. 366; and even after he becomes of age, if he be chargeable to the
public, she may, perhaps, in all the states, be compelled, when she has
sufficient means, to support him. But when the child has property sufficient
for his support, she is not, even during his minority, obliged to maintain
him. 1 Bro. C. C. 387; 2 Mass. R. 415; 4 Miss. R. 97.
3. When the father dies without leaving a testamentary guardian, at
common law, the mother is entitled to be the guardian of the person and
estate of the infant, until he arrives at fourteen years, when he is able to
choose a guardian. Litt. sect. 123; 3 Co. 38; Co. Litt. 84 b; 2 Atk. 14; Com
Dig. B, D, E; 7 Ves. 348. See 10 Mass. 135, 140; 15 Mass. 272; 4 Binn. 487;
4 Stew. & Part. 123; 2 Mass. 415; Harper, R. 9; 1 Root, R. 487.
4. In Pennsylvania, the orphans' court will, in such case, appoint a
guardian until the infant shall attain his fourteenth year. During the joint
lives of the parents, (q.v.) the father (q.v.) is alone responsible for
the support of the children; and has the only control over them, except when
in special cases the mother is allowed to have possession of them. 1 P. A.
Browne's Rep. 143; 5 Binn. R. 520; 2 Serg. & Rawle 174. Vide 4 Binn. R. 492,
494.
5. The mother of a bastard child, as natural guardian, has a right to
the custody and control of such child, and is bound to maintain it. 2 Mass.
109; 12 Mass. 387, 433; 2 John. 375; 15 John. 208; 6 S. & R. 255; 1 Ashmead,
55.
MOTHER-IN-LAW. In Latin socrus. The mother of one's wife, or of one's
husband.
MOTION, practice. An application to a court by one of the parties in a
cause, or his counsel, in order to obtain some rule or order of court, which
he thinks becomes necessary in the progress of the cause, or to get relieved
in a summary manner, from some matter which would work injustice.
2. When the motion. is made on some matter of fact, it must be
supported by an affidavit that such facts are true; and for this purpose,
the party's affidavit will be received, though, it cannot be read on the
hearing. 1 Binn. R. 145; S. P. 2 Yeates' R. 546. Vide 3 Bl. Com. 304; 2
Sell. Pr. 356; 15 Vin. Ab. 495; Grah. Pr. 542; Smith's Ch. Pr. Index, h.t.
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MOTIVE. The inducement, cause or reason why a thing is done.
2. When there is such a mistake in the motive, that had the truth been
known, the contract would pot have been made, it is generally void., For
example, if a man should, after the death of Titius, of which he was
ignorant, insure his life, the error of the motive would avoid the contract.
Toull. Dr. Civ. Fr. liv. 3, c. 2, art. 1. Or, if Titius should sell to
Livius his horse, which both parties supposed to be living at some distance
from the place where the contract was made, when in fact, the horse was then
dead, the contract would be void. Poth. Vente, n. 4; 2 Kent, Com. 367. When
the contract is entered into under circumstances of clear mistake or
surprise, it will not be enforced. See the following authorities on this
subject. 1 Russ. & M. 527; 1 Ves. jr. 221; 4 Price, 135; 1 Ves. jr. 210;
Atkinson on Titl. 144. Vide Cause; Consideration.
3. The motive of prosecutions is frequently an object of inquiry,
particularly when the prosecutor is a witness, and in his case, as that of
any other witness, when the motion is ascertained to be bad, as a desire of
revenge for a real or supposed injury, the credibility of the witness will
be much weakened, though this will not alone render him incompetent. See
Evidence; Witness.
MOURNING. This word has several significations. 1. It is the apparel worn at
funerals, and for a time afterwards, in order to manifest grief for the
death of some one, and to honor his memory. 2. The expenses paid for such
apparel.
2. It has been held in England, that a demand for mourning furnished to
the widow and family of the testator, is not a funeral expense. 2 Carr. & P.
207. Vide 14 Ves. 346; 1 Ves. & Bea. 364. See 2 Bell's Comm. 156.
MOVABLES, estates. Such subjects of property as attend a man's person
wherever he goes, in contradistinction to things immovable. (q.v.)
2. Things movable by their nature are such as may be carried from one
place to another, whether they move themselves, as cattle, or cannot be
removed without an extraneous power, as inanimate things. Movables are
further distinguished into such as are in possession, or which are in the
power of the owner, as, a horse in actual use, a piece of furniture in a
man's own house; or such as are in the possession of another, and can only
be recovered by action, which are therefore said to be in action, as a debt.
Vide art. Personal Property, and Fonb. Eq. Index, h.t.; Pow. Mortg. Index,
h.t.; 2 Bl. Com. 884; Civ. Code of Lo. art. 464 to 472; 1 Bouv. Inst. n.
462.
MULATTO. A person born of one white and one black parent. 7 Mass. R. 88; 2
Bailey, 558.
MULCT, punishment. A fine imposed on the conviction of an offence.
MULCT, commerce. An imposition laid on ships or goods by a company of trade,
for the maintenance of consuls and the like. Obsolete.
MULIER. A woman, a wife; sometimes it is used to designate a marriageable
virgin, and in other cases the word mulier is employed in opposition to
virgo. Poth. Pand. tom. 22, h.t. In its most proper signification, it means
a wife.
2. A son or a daughter, born of a lawful wife, is called filius
mulieratus or filia mulierata, a son mulier, or a daughter mulier. The term
is used always in contradistinction to a bastard; mulier being always
legitimate. Co. Litt. 243.
3. When a man has a bastard son, and afterwards marries the mother, and
has by her another son, the latter is called the mulier puisne. 2 Bl. Com.
248.
MULTIFARIOUSNESS, equity pleading. By multifariousness in a bill, is
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understood the improperly joining in one bill distinct matters, and thereby
confounding them; as, for example, the uniting in one bill, several matters,
perfectly distinct and unconnected, against one defendant; or the demand of
several matters of distinct natures, against several defendants in the same
bill. Coop. Eq. Pl. 182; Mitf. by Jeremy, 181; 2 Mason's R. 201; 18 Ves. 80;
Hardr. R. 337; 4 Cowen's R. 682; 4 Bouv. Inst. n. 4165.
2. In order to prevent confusion in its pleadings and decrees, a court
of equity will anxiously discountenance this multifariousness. The following
case will illustrate this doctrine; suppose an estate should be sold in lots
to different persons, the purchasers could not join in exhibiting one bill
against the vendor for a specific performance; for each party's case would
be distinct, and would depend upon its own peculiar circumstances, and
therefore there should be a distinct bill upon each contract; on the other
hand, the vendor in the like case, would not be allowed to file one bill for
a specific performance against all the purchasers of the estate, for the
same reason. Coop. Eq. Pl. 182; 2 Dick. Rep. 677; 1 Madd. Rep. 88; Story's
Eq. Pl. Sec. 271 to 286. It is extremely difficult to say what constitutes
multifariousness as an abstract proposition. Story, Eq. Pl. Sec. 530, 539; 4
Blackf. 249; 2 How. S. C. Rep. 619, 642; 4 Bouv. Inst. n. 4243.
MULTITUDE. The meaning of this word is not very certain. By some it is said
that to make a multitude there must be ten persons at least, while others
contend that the law has not fixed any number. Co. Litt. 257.
MULTURE, Scotch law. The quantity of grain or meal payable to the proprietor
of the mill, or to the multurer, his tacksman, for manufacturing the corns.
Ersk. Prin. Laws of Scotl. B. 2 t. 9, n. 19.
MUNERA. The name given to grants made in the early feudal ages, which were
mere tenancies at will, or during the pleasure of the grantor. Dalr. Feud.
198, 199; Wright on Ten. 19.
MUNICIPAL. Strictly, this word applies only to what belongs to a city. Among
the Romans, cities were called municipia; these cities voluntarily joined
the Roman republic in relation to their sovereignty only, retaining, their
laws, their liberties, and their magistrates, who were thence called
municipal magistrates. With us this word has a more extensive meaning; for
example, we call municipal law, not the law of a city only, but the law of
the state. 1 Bl. Com. Municipal is used in contradistinction to
international; thus we say an offence against the law of nations is an
international offence, but one committed against a particular state or
separate community, is a municipal offence.
MURDER, crim. law. This, one of the most important crimes that can be
committed against individuals, has been variously defined. Hawkins defines
it to be the willful killing of any subject whatever, with malice
aforethought, whether the person slain shall be an Englishman or a
foreigner. B. 1, c. 13, s. 3. Russell says, murder is the killing of any
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person under the king's peace, with malice prepense or aforethought, either
express or implied by law. 1 Rus. Cr. 421. And Sir Edward Coke, 3 Inst. 47,
defines or rather describes this offence to be, "when a person of sound
mind and discretion, unlawfully killeth any reasonable creature in being,
and under the king's peace, with malice aforethought either express or
implied."
2. This definition, which has been adopted by Blackstone, 4 Com. 195;
Chitty, 2 Cr. Law, 724; and others, has been severely and perhaps justly
criticised. What, it has been asked, are sound memory and understanding?
What has soundness of memory to do with the act; be it ever so imperfect,
how does it affect the guilt? If discretion is necessary, can the crime ever
be committed, for, is it not the highest indiscretion in a man to take the
life of another, and thereby expose his own? If the person killed be an
idiot or a new born infant, is he a reasonable creature? Who is in the
king's peace? What is malice aforethought? Can there be any malice
afterthought? Livingst. Syst. of Pen. Law; 186.
3. According to Coke's definition there must be, 1st. Sound mind and
memory in the agent. By this is understood there must be a will, (q.v.) and
legal discretion. (q.v.) 2. An actual killing, but it is not necessary that
it should be caused by direct violence; it is sufficient if the acts done
apparently endanger. life, and eventually fatal. Hawk. b. 1, c. 31, s. 4; 1
Hale, P. C. 431; 1 Ashm. R. 289; 9 Car. & Payne, 356; S. C. 38 E. C. L. R.
152; 2 Palm. 545. 3. The party killed must have been a reasonable being,
alive and in the king's peace. To constitute a birth, so as to make the
killing of a child murder, the whole body must be detached from that of the
mother; but if it has come wholly forth, but is still connected by the
umbilical chord, such killing will be murder. 2 Bouv. Inst. n. 1722, note.
Foeticide (q.v.) would not be such a killing; he must have been in rerum
natura. 4. Malice, either express or implied. It is this circumstance which
distinguishes murder from every description of homicide. Vide art. Malice.
4. In some of the states, by legislative enactments, murder has been
divided into degrees. In Pennsylvania, the act of April 22, 1794, 3 Smith's
Laws, 186, makes "all murder which shall be perpetrated by means of poison,
or by lying in wait, or by any other kind of willful, deliberate, and
premeditated killing, or which shall be committed in the perpetration or
attempt to perpetrate, any arson, rape, robbery, or burglary, shall be
deemed murder of the first degree; and all other kinds of murder shall be
deemed murder of the second degree; and the jury before whom any person
indicted for murder shall be tried, shall, if they find the person guilty
thereof, ascertain in their verdict, whether it be murder of the first or
second degree; but if such person shall be convicted by confession, the
court shall proceed by examination of witnesses, to determine the degree of
the crime, and give sentence accordingly. Many decisions have been made
under this act to which the reader is referred: see Whart. Dig. Criminal
Law, h.t.
5. The legislature of Tennessee has adopted the same distinction in the
very words of the act of Pennsylvania just cited. Act of 1829, 1 Term. Laws,
Dig. 244. Vide 3 Yerg. R. 283; 5 Yerg. R. 340.
6. Virginia has adopted the same distinction. 6 Rand. R. 721. Vide,
generally, Bac. Ab. h.t.; 15 Vin. Ab. 500; Com. Dig. Justices, M 1, 2;
Dane's Ab. Index, h.t.; Hawk. Index, h.t.; 1 Russ. Cr. b. 3, c. 1; Rosc.
Cr. Ev. h.t. Hale, P. C. Index, h.t.; 4 Bl. Com. 195; 2 Swift's Syst.
Index, h.t.; 2 Swift's Dig. Index, h.t.; American Digests, h.t.;
Wheeler's C. C. Index, h.t.; Stark. Ev. Index, h.t.; Chit. Cr. Law, Index,
h.t.; New York Rev. Stat. part 4, c. 1, t. 1 and 2.
MURDER, pleadings. In an indictment for murder, it must be charged that the
prisoner "did kill and murder" the deceased, and unless the word murder be
introduced into the charge, the indictment will be taken to charge
manslaughter only. Foster, 424; Yelv. 205; 1 Chit. Cr. Law, *243, and the
authorities and cases there cited.
MURDRUM, old Eng. law. During the times of the Danes, and afterwards till
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the reign of Edward III, murdrum was the killing of a man in a secret
manner, and in that it differed from simple homicide.
2. When a man was thus killed, and he was unknown, by the laws of
Canute he was presumed to be a Dane, and the vill was compelled to pay forty
marks for his death. After the conquest, a similar law was made in favor of
Frenchmen, which was abolished by 3 Edw. III.
3. By murdrum was also understood the fine formerly imposed in England
upon a person who had committed homicide perinfortunium or se defendendo.
Prin. Pen. 219, note r.
MUSICAL COMPOSITION. The act of congress of February 3, 1831, authorizes the
granting of a copyright for a musical composition. A question was formerly
agitated whether a composition published on a single sheet of paper, was to
be considered a book, and it was decided in the affirmative. 2 Campb. 28,
n.; 11 East, 244. See Copyright.
TO MUSTER, mar. law. By this term is understood to collect together and
exhibit soldiers and their arms; it also signifies to employ recruits and
put their names down in a book to enroll them.
MUSTER-ROLL, maritime law; A written document containing the name's, ages,
quality, place of residence, and, above all, place of birth, of every person
of the ship's company. It is of great use in ascertaining the ship's;
neutrality. Marsh. Ins. B. 1, c. 9, s. 6, p. 407; Jacobs. Sea Laws, 161; 2
Wash. C. C. R. 201.
MUSTIRO. This name is given to the issue of an Indian and a negro. Dudl. S.
Car. R. 174.
MUTATION, French law. This term is synonymous with change, and is
particularly applied to designate the change which takes place in the
property of a thing in its transmission from one person to another;
permutation therefore happens when, the owner of the thing sells, exchanges
or gives it. It is nearly synonymous with transfer. (q.v.) Merl. Repert.
h.t.
MUTATION OF LIBEL, practice. An amendment allowed to a libel, by which there
is an alteration of the substance of the libel, as by propounding a new
cause of action, or asking one thing instead of another. Dunl. Adm. Pr. 213;
Law's Eccl. Law, 165-167; 1 Paine's R. 435; 1 Gall. R. 123; 1 Wheat. R. 26l.
MUTATIS MUTANDIS. The necessary changes. This is a phrase of frequent
practical occurrence, meaning that matters or things are generally the same,
but to be altered, when necessary, as to names, offices, and the like.
MUTE, persons. One who is dumb. Vide Deaf and Dumb.
MUTE, STANDING MUTE, practice, crim. law. When a prisoner upon his
arraignment totally refuses to answer, insists upon mere frivolous
pretences, or refuses to put himself upon the country, after pleading not
guilty, he is said to stand mute.
2. In the case of the United States v. Hare, et al., Circuit Court,
Maryland Dist. May sess. 1818, the prisoner standing mute was considered as
if he had pleaded not guilty.
3. The act of congress of March 3, 1825, 3 Story's L. U. S. 2002, has
since provided as follows; Sec. 14, That if any person, upon his or her
arraignment upon any indictment before any court of the United States for
any offence, not capital, shall stand mute, or will not answer or plead to
such indictment, the court shall, notwithstanding, proceed to the trial of
the person, so standing mute, or refusing to answer or pleas, as if he or
she had pleaded not guilty; and upon a verdict being returned by the jury,
may proceed to render judgment accordingly. A similar provision is to be
found in the laws of Pennsylvania.
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4. The barbarous punishment of peine forte et dure which till lately
disgraced the criminal code of England, was never known in the United
States. Vide Dumb; 15 Vin. Ab. 527.
5. When a prisoner stands mute, the laws of England arrive at the
forced conclusion that he is guilty, and punish him accordingly. 1 Chit. Cr.
Law, 428.
6. By the old French law, when a person accused was mute, or stood
mute, it was the duty of the judge to appoint him a curator, whose duty it
was to defend him, in the best manner he could; and for this purpose, he was
allowed to communicate with him privately. Poth. Proced. Crim. s. 4, art. 2,
Sec. 1.
MUTILATION, crim. law. The depriving a man of the use of any of those limbs,
which may be useful to him in fight, the loss of which amounts to mayhem. 1
Bl. Com. 130.
MUTINY, crimes. The unlawful resistance of a superior officer, or the
raising of commotions and disturbances on board of a ship against the
authority of its commander, or in the army in opposition to the authority of
the officers; a sedition; (q.v.) a revolt. (q.v.)
2. By the act for establishing rules and articles for the government of
the armies of the United States, it is enacted as follows: Article 7. Any
officer or soldier, who shall begin, excite, or cause, or join in, any
mutiny or sedition in any troop or company in the service of the United
States, or in any party, post, detachment or guard, shall suffer death, or
such other punishment as by a court martial shall be inflicted. Article 8.
Any officer, non-commissioned officer, or soldier, who being present at any
mutiny or sedition, does not use his utmost endeavors to suppress the same,
or coming to the knowledge of any intended mutiny, does not without delay
give information thereof to his commanding officer, shall be punished by the
sentence of a court martial, with death, or otherwise, according to the
nature of his offence.
3. And by the act for the better government of the navy of the United
States, it is enacted as follows,: Article 13. If any person in the navy
shall make or attempt to make any mutinous assembly, he shall, on conviction
thereof by, a court martial, suffer death; and if any person as aforesaid,
shall utter any seditious or mutinous words, or shall conceal or connive at
any mutinous or seditious practices, or shall treat with contempt his
superior, being in the execution of his office, or being witness to any
mutiny or sedition, shall not do his utmost to suppress it, he shall be
punished at the discretion of a court martial. Vide 2 Stra. R. 1264.
MUTUAL. Reciprocal.
2. In contracts there must always be a consideration in order to make
them valid. This is sometimes mutual, as when one man promises to pay a sum
of money to another in consideration that he shall deliver him a horse, and
the latter promises to deliver him the horse in consideration of being paid
the price agreed upon. When a man and a woman promise to marry each other,
the promise is mutual. It is one of the qualities of an award, that it be
mutual; but this doctrine is not as strict now as formerly. 3 Rand. 94; see
3 Caines 254; 4 Day, 422; 1 Dall. 364, 365; 6 Greenl. 247; 8 Greenl. 315; 6
Pick. 148.
3. To entitle a contracting party to a specific performance of an
agreement, it must be mutual, for otherwise it will not be compelled. 1 Sch.
& Lef. 18; Bunb. 111; Newl. Contr. 152. See Rose. Civ. Ev. 261.
4. A distinction has been made between mutual debts and mutual credits.
The former term is more limited in its signification than the latter. In
bankrupt cases where a person was indebted to the bankrupt in a sum payable
at a future day, and the bankrupt owed him a smaller sum which was then due;
this, though in strictness, not a mutual debt, was holden to be a mutual
credit. 1 Atk. 228, 230; 7 T. R. 378; Burge on Sur. 455, 457.
MUTUARY, contracts. A person who borrows personal chattels to be consumed by
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him, and returned to the lender in kind; the person who receives the benefit
arising from the contract of mutuum. Story, Bailm. Sec. 47.
N.
NAIL, A measure of length, equal to two inches and a quarter. Vide Measure.
NAKED. This word is used in a metaphorical sense to denote that a thing is
not complete, and for want of some quality it is either without power, or it
possesses a limited power. A naked contract, is one made without
consideration, and, for that reason, it is void; a naked authority, is one
given without any right in the agent, and wholly for the benefit of the
principal. 2 Bouv. Inst. n. 1302. See Nudum Pactum.
NAME. One or more words used to distinguish a particular individual, as
Socrates, Benjamin Franklin.
2. The Greeks, as is well known, bore only one name, and it was one of
the especial rights of a father to choose the names for hi's children and to
alter them if he pleased. It was customary to give to the eldest son the
name of the grandfather on his father's side. The day on which children
received their names was the tenth after their birth. The tenth day, called
'denate,' was a festive day, and friends and relatives were invited to take
part in a sacrifice and a repast. If in a court of justice proofs could be
adduced that a father had held the denate, it was sufficient evidence that
be had recognized the child as his own. Smith's Diet. of Greek and Rom.
Antiq. h.v.
3. Among the Romans, the division into races, and the subdivision of
races into families, caused a great multiplicity of names. They had first
the pronomen, which was proper to the person; then the nomen, belonging to
his race; a surname or cognomen, designating the family; and sometimes an
agnomen, which indicated the branch of that family in which the author has
become distinguished. Thus, for example, Publius Cornelius Scipio Africanus;
Publius is the pronomen; Cornelius, the nomen, designating the name of the
race Cornelia; Scipio, the cognomen, or surname of the family; and
Africanus, the agnomen, which indicated his exploits.
4. Names are divided into Christian names, as, Benjamin, and surnames,
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as, Franklin.
5. No man can have more than one Christian name; 1 Ld. Raym. 562; Bac.
Ab. Misnomer, A; though two or more names usually kept separate, as John and
Peter, may undoubtedly be compounded, so as to form, in contemplation of
law, but one. 5 T. R. 195. A letter put between the Christian and surname,
as an abbreviation of a part of the Christian name, as, John B. Peterson, is
no part of either. 4 Watts' R. 329; 5 John. R. 84; 14 Pet. R. 322; 3 Pet. R.
7; 2 Cowen. 463; Co. Litt. 3 a; 1 Ld. Raym. 562;, Vin. Ab. Misnomer, C 6,
pl. 5 and 6: Com. Dig. Indictment, G 1, note u; Willes, R. 654; Bac. Abr.
Misnomer and Addition; 3 Chit. Pr. 164 to 173; 1 Young, R. 602. But see 7
Watts & Serg. 406.
5. In general a corporation must contract and sue and be sued by its
corporate name; 8 John. R. 295; 14 John. R. 238; 19 John. R. 300; 4 Rand. R.
359; yet a slight alteration in stating the name is unimportant, if there be
no possibility of mistaking the identity of the corporation suing. 12 L. R.
444.
6. It sometimes happens that two different sets of partners carry on
business in the same social name, and that one of the partners is a member
of both firms. When there is a confusion in this respect, the partners of
one firm may, in some cases, be made responsible for the debts of another.
Baker v. Charlton, Peake's N. P. Cas. 80; 3 Mart. N. S. 39; 7 East. 210; 2
Bouv. Inst. n. 1477.
7. It is said that in devises if the name be mistaken, if it appear the
testator meant a particular corporation, the devise will be good; a devise
to "the inhabitants of the south parish," may be enjoyed by the inhabitants
of the first parish. 3 Pick. R. 232; 6 S. & R. 11; see also Hob. 33; 6 Co.
65; 2 Cowen, R, 778.
8. As to names which have the same sound, see Bac. Ab. Misnomer, A; 7
Serg & Rawle, 479; Hammond's Analysis of Pleading, 89; 10 East. R. 83; and
article Idem Sonans.
9. As to the effect of using those which have the same derivation, see
2 Roll. Ab. 135; 1 W. C. C. R. 285; 1 Chit. Cr. Law 108. For the effect of
changing one name, see 1 Rop. Leg. 102; 3 M. & S. 453 Com. Dig. G 1, note x.
10. As to the omission or mistake of the name of a legatee, see 1 Rop.
Leg. 132, 147; 1 Supp. to Ves. Jr. 81, 82; 6 Ves. 42; 1 P. Wms. 425; Jacob's
R. 464. As to the effect of mistakes in the names of persons in pleading,
see Steph. Pl. 319. Vide, generally, 13 Vin. Ab. 13; 15 Vin. Ab. 595; Dane's
Ab. Index, h.t.; Roper on Leg. Index, b. t; 8 Com: Dig., 814; 3 Mis. R.
144; 4 McCord, 487; 5 Halst. 230; 3 Mis. R. 227; 1 Pick. 388; Merl. Rep. mot
Nom; and article Misnomer.
11. When a person uses a name in making a contract under seal, he will
not be permitted to say that it is not his name; as, if he sign and seal a
bond "A and B," (being his own and his partner's name,) and he had no
authority from his partner to make such a deed, he cannot deny that his name
is A. & B. 1 Raym. 2; 1 Salk. 214. And if a man describes himself in the
body of a deed by the name of James and signs it John, he cannot, on being
sued by the latter name, plead that his name is James. 3 Taunt. 505; Cro.
Eliz. 897, n. a. Vide 3 P. & D. 271; 11 Ad. & L. 594.
NAMES OF SHIPS. The act of congress of December 31, 1792, concerning the
registering and recording of ships or vessels, provides,
Sec. 3. That every ship or vessel, hereafter to be registered, (except
as is hereinafter provided,) shall be registered by the collector of the
district in which shall be comprehended the port to which such ship or
vessel shall belong at the time of her registry, which port shall be deemed
to be that at or nearest to which the owner, if there be but one, or, if
more than one, the husband, or acting and managing owner of such ship or
vessel, usually resides. And the name of the said ship or vessel, and of the
port to which she shall so belong, shall be painted on her stern, on a black
ground, in white letters, of not less than three inches in length. And if
any ship or vessel of the United States shall be found without having her
name, and the name of the port to which she belongs, painted in manner
aforesaid, the owner or owners shall forfeit fifty dollars; one half to the
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person, giving the information thereof, the other half to the use of the
United States. 1 Story's L. U. S. 269.
2. And by the act of February 18, 1793, it is directed,
Sec. 11. That every licensed ship or vessel shall have her name, and
the port to which she belongs, painted on her stern, in the manner as is
provided for registered ships or vessels; and if any licensed ship or vessel
be found without such painting, the owner or owners thereof shall pay twenty
dollars. 1 Story's L. U. S. 290.
3. By a resolution of congress, approved, March. 3, 1819, it is
resolved, that all the ships of the navy of the United States, now building,
or hereafter to be built, shall be named by the secretary of the navy, under
the direction of the president of the United States, according to the
following rule, to wit: Those of the first class, shall be called after the
states of this Union those of the second class, after the rivers and those
of the third class, after the principal cities and towns; taking care that
no two vessels in the navy shall bear the same name. 3 Story's L. U. S.
1757.
4. When a ship is pledged, as in the contract of bottomry, it is
indispensable that its name should be properly stated; when it is merely the
place in which the pledge is to be found, as in respondentia, it should also
be stated, but a mistake in this case would not be fatal. 2 Bouv. Inst. n.
1255.
NARROW SEAS, English law. Those seas which adjoin the coast of England. Bac.
Ab. Prerogative, B 3.
NATIONAL or PUBLIC DOMAIN. All the property which belongs to the state is
comprehended under the name of national or public domain.
2. Care must be taken not to confound the public or national domain,
with the national finances, or the public revenue, as taxes, imposts,
contributions, duties, and the like, which are not considered as property,
and are essentially attached to the sovereignty. Vide Domain; Eminent
Domain.
NAVAL OFFICER. The name of an officer of the United States, whose duties are
prescribed by various acts of congress.
2. Naval officers are appointed for the term of four years, but are
removable from office at pleasure. Act of May 15, 1820, Sec. 1, 3 Story, L.
U. S. 1790.
3. The act of March 2, 1799, Sec. 21, 1 Story, L. U. S. 590, prescribes
that the naval officer shall receive copies of all manifests, and entries,
and shall, together with the collector, estimate the duties on all goods,
wares, and merchandise, subject to duty, (and no duties shall be received
without such estimate,) and shall keep a separate record thereof, and shall
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countersign all permits, clearances, certificates, debentures, and other
documents, to be granted by the collector; he shall also examine the
collector's abstracts of duties, and other accounts of receipts, bonds, and
expenditures, and, if found right, he shall certify the same.
4. And by Sec. 68, of the same law, it is enacted, that every
collector, naval officer, and surveyor, or other person specially appointed,
by either of them, for that purpose, shall have full power and authority to
enter any ship or vessel, in which they shall have reason to suspect any
goods, wares, or merchandise, subject to duty, are concealed, and therein to
search for, seize, and secure, any such goods, wares, or merchandise and if
they shall have cause to suspect a concealment thereof in any particular
dwelling house, store, building, or other place, they or either of them
shall, upon proper application, on oath, to any justice of the peace, be
entitled to a warrant to enter such house, store, or other place (in the day
time only,) and there to search for such goods; and if any shall be found,
to seize and secure the same for trial; and all such goods, wares and
merchandise, on which the duties shall not have been paid, or secured to be
paid, shall be forfeited.
NAVICULARIS, civil law. He who had the management and care of a ship. The
same as our sea captain. Bouch. Inst. n. 359. Vide Captain.
NAVIGABLE. Capable of being navigated.
2. In law, the term navigable is applied to the sea, to arms of the
sea, and to rivers in which the tide flows and reflows. 5 Taunt. R. 705; S.
C. Eng. Com. Law Rep. 240; 5 Pick. R. 199; Ang. Tide Wat. 62; 1 Bouv. Inst.
n. 428.
3. In North Carolina; 1 M'Cord, R. 580; 2 Dev. R. 30; 3 Dev. R. 59; and
in Pennsylvania; 2 Binn. R. 75; 14 S. & R. 71; the navigability of a river
does not depend upon the ebb and flow of the tide, but a stream navigable by
sea vessels is a navigable river.
4. By the common law, such rivers as are navigable in the popular sense
of the word, whether the tide ebb and flow in them or not, are public
highways. Ang. Tide Wat. 62; Ang. Wat. Courses, 205 1 Pick. 180; 5 Pick.
199; 1 Halst. 1; 4 Call, 441: 3 Blackf. 136. Vide Arm of the sea; Reliction;
River.
NAVIGATION. The act of traversing the sea, rivers or lakes, in ships or
other vessels; the art of ascertaining the geographical position of a ship,
and directing her course.
2. It is not within the plan of this work to copy the acts of congress
relating to navigation, or even an abstract of them. The reader is referred
to Story's L. U. S. Index, h.t.; Gordon's Dic. art. 2905, et seq.
NAVY. The whole shippings taken collectively, belonging to the government of
an independent nation; the ships belonging to private individuals are not
included in the navy.
2. The constitution of the United States, art. 1, s. 8, vests in
congress the power to provide and maintain a navy."
3. Anterior to the war of 1812, the navy of the United States bad been
much neglected, and it was not until during the late war, when it fought
itself into notice, that the public attention was seriously attracted to it.
Some legislation favorable to it, then took place.
4. The act of January 2, 1813, 2 Story's L. U. S. 1282, authorized the
president of the United States, as soon as suitable materials could be
procured therefor, to cause to be built, equipped and employed, four ships
to rate not less than seventy-four guns, and six ships to rate forty-four
guns each. The sum of two millions five hundred thousand dollars is
appropriated for the purpose.
5. And by the act of March 3, 1813, 2 Story, L. U. S. 1313, the
president is further authorized to have built six sloops of war, and to have
built or procured such a number of sloops of war or other armed vessels, as
the public service may require on the lakes. The sum of nine hundred
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thousand dollars is appropriated for this purpose, and to pay two hundred
thousand dollars for vessels already procured on the lakes.
6. The act of March 3, 1815, 2 Story, L. U. S. 1511, appropriates the
sum of two hundred thousand dollars annually for three years, towards the
purchase of a stock of materials for ship building.
7. The act of April 29, 1816, may be said to have been the first that
manifested the fostering care of congress. By, this act the sum of one
million of dollars per annum for eight years, including the sum of two
hundred thousand dollars per annum appropriated by the act of March 3, 1815,
is appropriated. And the president is authorized to cause to be built nine
ships, to rate not less than seventy-four guns each, and twelve ships to
rate not less than forty-four guns each, including one seventy-four and
three forty-four gun ships, authorized to be built by the act of January 2d,
1813. The third section of this act authorizes the president to procure
steam engines and all the imperishable materials for building three steam
batteries.
8. The act of March 3, 1821, 3 Story's L. U. S. 1820, repeals the first
section of the act of the 29th April, 1816, and instead of the appropriation
therein contained, appropriates the sum of five hundred thousand dollars per
annum for six years, from the year 1821 inclusive, to be applied to carry
into effect the purposes of the said act.
9. To repress piracy in the gulf of Mexico, the Act of 22d December,
1822, was passed, 3 St. L. U. S. 1873. It authorizes the president to
purchase or construct a sufficient number of vessels to repress piracy in
that gulf and the adjoining seas and territories. It appropriates one
hundred and sixty thousand dollars for the purpose.
10. The act of May 17, 1826, authorizes the suspension of the building
of one of the ships above authorized to be built, and authorizes the
president to purchase a ship of not less than the smallest class authorized
to be built by the act of 29th April, 1816.
11. The act of March 3, 1827, 3 St. L. U. S. 2070, appropriates five
hundred thousand dollars per annum for six years for the gradual improvement
of the navy of the United States, and authorizes the president to procure
materials for ship building. A further appropriation is made by the act of
March 2, 1833, 4 Sharsw. con. of St. L. U. S. 2346, of five hundred thousand
dollars annually for six years from and after, the third of March, 1833, for
the gradual improvement of the navy of the United States; and the president
is authorized to cause the above mentioned appropriation to be applied as
directed by the act of March 3, 1827.
12. For the rules and regulations of the navy of the United States, the
reader is referred to the act "for the better government of the navy of the
United States." 1 St. L. U. S. 761. Vide article Names of Ships.
NE DISTURBA PAS, pleading. The general issue in quare impedit. Hob. 162 Vide
Rast, 517; Winch. Ent. 703.
NE BAILA PAS. He did not deliver. This is a plea in detinue, by which the
defendant denies the delivery to him of the thing sued for.
NE DONA PAS, or NON DEDIT, pleading. The general issue in formedon; and is
in the following formula: "And the said C D, by J K, his attorney, comes and
defends the right, when, &c., and says, that the said E F did not give the
said manor, with the appurtenances, or ally part thereof, to the said G B,
and the heirs of his body issuing, in manner and form as the said A B hath
in his count above alleged.' And of this the said C D puts himself upon the
country." 10 Went. 182.
NE EXEAT REPUBLICA, practice. The name of a writ issued by a court of
chancery, directed to the sheriff, reciting that the defendant in the case
is indebted to the a complainant, and, that he designs going quickly into
parts without the state, to the damage of the complainant, and then
commanding him to cause the defendant to give bail in a certain sum that he
will not leave the state without leave of the court, and for want of such
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bail that he the sheriff, do commit the defendant to prison.
2. This writ is used to prevent debtors from escaping from their
creditors. It amounts in ordinary civil cases, to nothing more than process
to hold to bail, or to compel a party to give security to abide the decree
to be made in his case. 2 Kent, Com. 32 1 Clarke, R. 551,; Beames' Ne Excat;
13 Vin. Ab. 537; 1 Supp to Ves. jr. 33, 352, 467; 4 Ves. 577 5 Ves. 91; Bac.
Ab. Prerogative, C; 8 Com. Dig. 232; 1 Bl. Com. 138 Blake's Ch. Pr. Index,
h.t.; Madd. Ch. Pr. Index, h.t.; 1 Smith's Ch. Pr. 576; Story's Eq. Index,
h.t.
3. The subject may be considered under the following heads.
4.-1. Against whom a writ of ne exect may be issued. It may be issued
against foreigners subject to the jurisdiction of the court, citizens of the
same state, or of another state, when it appears by a positive affidavit
that the defendant is about to leave the state, or has threatened to do so,
and that the debt would be lost or endangered by his departure. 3 Johns. Ch.
R. 75, 412; 7 Johns. Ch. R. 192; 1 Hopk. Ch. R. 499. On the same principle
which has been adopted in the courts of law that a defendant could not be
held to bail twice for the same cause of action, it has been decided that a
writ of ne exeat was not properly issued against a defendant who had been
held to bail in an action at law. 8 Ves. jr. 594.
5.-2. For what claims. This writ can be issued only. for equitable
demands. 4 Desaus. R. 108; 1 Johns. Ch. R. 2; 6 Johns. Ch. R. 138; 1 Hopk.
Ch. R. 499. It may be allowed in a case to prevent the failure of justice. 2
Johns. Chanc. Rep. 191. When the demand is strictly legal, it cannot be
issued, because the court has no jurisdiction. When the court has concurrent
jurisdiction with the courts of common law, the writ may, in such case,
issue, unless the party has been already arrested at law. 2 Johns. Ch. R.
170. In all cases, when a writ of Be exeat is claimed, the plaintiff's
equity must appear on the face of the bill. 3 Johns. Ch. R. 414.
6.-3. The amount of bail. The amount of bail is assessed by the court
itself and a sum is usually directed sufficient to cover the existing debt,
and a reasonable amount of future interest, having regard to the probable
duration of the suit. 1 Hopk. Ch. R. 501.
NE LUMINIBUS OFFICIATOR, civil law. The name of a servitude which restrains
the owner of a house from making such erections as obstruct the light of the
adjoining house. Dig. 8, 4, 15, 17.
NE RECIPIATUR. That it be not received. A caveat or words of caution given
to a law officer, by a party in a cause, not to receive the next proceedings
of his opponent. 1 Sell. Br. 7.
NE RELESSA PAS. The name of a replication to a plea, of release, by which
the plaintiff insists he did not release. 2 Bulst. 55.
NE UNJUSTE VEXES, old Eng. law. The name of a writ which issued to relieve
a tenant upon, whom his lord had distrained for more services than he was
bound to perform.
2. It was a prohibition to the lord, not unjustly to distrain or vex
his tenant. F. N. B. h.t.
NE UNQUES ACCOUPLE, pleading. A plea by which the party denies that he ever
was lawfully married to the person to whom it refers. See the form, 2 Wils.
R. 118; Morg. 582; 10 Went. Prec. Pl. 158; 211 Bl. 145; 3 Chit. PI. 599.
NE UNQUES EXECUTOR, pleading. A plea by which the party who uses it denies
that the plaintiff is an executor, as he claims to be; or that the defendant
is executor, as the plaintiff in his declaration charges him to be. 1 Chit.
Pl. 484; 1 Saund. 274, n. 3; Coin. Dig. Pleader, 2 D, 2 2 Chit. PI. 498.
NE UNQUES SEISIE QUIZ DOWER, pleading. A plea by which a defendant denies
the right of a widow who sues for, and demands her dower in lands, &c., late
of her husband, because the husband was not, on the day of her marriage with
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him, or any time afterwards, seised of such estate, so that she could be
endowed of the game. See 2 Saund. 329; 10 Went. 159; 3 Chitt. Pl. 598, and
the authorities there cited.
NE UNQUES SON RECEIVER, pleading. The name of a plea in an action of account
render, by which the defendant affirms that he never was receiver of the
plaintiff. 12 Vin. Ab. 183.
NE VARIETUR. These words, which literally signify that it be not varied or
changed, are sometimes written by notaries public upon bills or notes, for
the purpose of identifying them. This does not destroy their negotiability.
8 Wheat. 338.
NEAT or NET, contracts. The exact weight of an article, without the bag,
box, keg, or other thing in which it may be enveloped.
NEATNESS, pleading. The statement, in apt and appropriate words, of all the
necessary facts, and ne more. Lawes on Pl. 62.
NECESSARIES. Such things as are proper and requisite for the sustenance of
man.
2. The term necessaries is not confined merely to what is requisite
barely to support life, but includes many of the conveniences of refined
society. It is a relative term, which must be applied to the circumstances
and conditions of the parties. 7 S. & R. 247. Ornaments and superfluities of
dress, such as are usually worn by the party's rank and situation in life,
have been classed among necessaries. 1 Campb. R. 120; 7 C. & P. 52; 1
Hodges, R. 31; 8 T. R. 578; 3 Campb. 326; 1 Leigh's N. P. 135.
3. Persons incapable of making contracts generally, may, nevertheless,
make legal engagements for necessaries for which they, or those bound to
support them, will be held responsible. The classes of persons who, although
not bound by their usual contracts, can bind themselves or others for
necessaries, are infants and married women.
4.-1. Infants are allowed to make binding contracts whenever it is
for their interest; when, therefore, they are unprovided with necessaries,
which, Lord Coke says, include victuals, clothing, medical aid, and "good
teaching and instruction, whereby he may profit himself afterwards," they
may buy them, and their contracts will be binding. Co. Litt. 172 a.
Necessaries for the infant's wife &lad children, are necessaries for
himself. Str. 168; Com. Dig. Enfant, B 5; 1 Sid. 112 2 Stark. Ev. 725; 8
Day, 37 1 Bibb, 519; 2 Nott & McC. 524; 9 John. R. 141.; 16 Mass. 31; Bac.
Ab. Infancy, I.
5.-2. A wife is allowed to make contracts for necessaries, and her
husband is generally responsible upon them, because his assent is presumed,
and even if notice be given not to trust her, still he would be liable for
all such necessaries as she stood in need of; but in this case, the creditor
would be required to show she did stand in need of the articles furnished. 1
Salk. 118 Ld. Raym. 1006. But if the wife elopes, though it be not with an
adulterer, ho is not chargeable even for necessaries; the very fact of the
slopement and 'Separation, is sufficient to put persons on inquiry, and
whoever gives credit to the wife afterwards, gives it at his peril. 1 Salk.
119; Str. 647; 1 Sid. 109; S. C. 1 Lec. 4; 12 John. R. 293; 3 Pick. R. 289;
2 Halst. 146; 11 John. R. 281; 2 Kent, Com. 123; 2 St. Ev. 696; Bac. Ab.
Baron and Feme, H; Chit. Contr. Index, h.t.; 1 Hare & Wall. Sel. Dec. 104,
106; Ham. on Parties, 217.
NECESSARY AND PROPER. The Constitution of the United States, art. 1, s. 8,
vests in congress the power "to make all laws, which shall be necessary and
proper, for carrying into execution the foregoing powers, and all other
powers vested by this constitution in the government of the United States,
in any department or officer thereof."
2. This power bas ever been viewed with perhaps unfounded jealousy and
distrust. is a power expressly given, which, without this clause, would, be
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implied. The plain import of the clause is, that congress shall have all
incidental and instrumental powers, necessary and proper to carry into
execution all the express powers. It neither enlarges any power,
specifically granted, nor is it a grant of any new power to congress. It is
merely a declaration for the removal of all uncertainty, that the means of
carrying into execution those already granted, are included in the grant.
3. Some controversy has taken place as to what is to be considered
"necessary." It has been contended that by this must be understood what is
indispensable; but it is obvious the term necessary means no more than
useful, needful, requisite, incidental, or conducive to. It is in this sense
the word appears to have been used, when connected with the word "proper." 4
Wheat. 418-420; 3 Story, Const. Sec. 1231 to 1253.
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NEUTRALITY, international law. The state of a nation which takes no part
between two or more other. nations at war with each other.
2. Neutrality consists in the observance of a strict and honest
impartiality, so as not to afford advantage in the war to either party; and
particularly in so far restraining its trade to the accustomed course, which
is held in time of peace, as not to render assistance to one of the
belligerents in escaping the effects of the other's hostilities Even a loan
of money to one of the belligerent parties is considered a violation of
neutrality. 9 Moore's Rep. 586. A fraudulent neutrality is considered as no
neutrality.
3. In policies of insurance there is frequently a warranty of
neutrality. The meaning of this warranty is, that the property insured is
neutral in fact, and it shall be so in appearance and conduct; that the
property does belong to neutrals; that it is or shall be documented so as to
prove its neutrality, and that no act of the insured or his agents shall be
done which can legally compromise its neutrality. 3 Wash. C. C. R. 117. See
1 Caines, 548; 2 S. & R. 119; Bee, R. 5; 7 Wheat. 471; 9 Cranch, 205; 2
John. Cas. 180; 2 Dall. 270; 1 Gallis. 274; Bee, R. 67.
4. The violation of neutrality by citizens of the United States,
contrary to the provisions of the act of congress of April 20, 1818, Sec. 3,
renders the individual liable to an indictment. One fitting out and arming a
vessel in the United States, to commit hostilities against a foreign power
at peace with them, is therefore indictable. 6 Pet. 445; Pet. C. C. R. 487.
Vide Marsh. Ins. 384 a; Park's Ins. 'Index, h.t.; 1 Kent, Com. 116;
Burlamaqui, pt. 4, c. 5, s. 16 & 17; Bunk. lib. 1, c. 9; Cobbett's
Parliamentary Debates; 406; Chitty, Law of Nat., Index, h.t.; Mann. Comm.
B. 3, c. 1; Vattel, 1. 3, c. 7, SS 104; Martens, Precis. liv. 8, c. 7, SS
306; Bouch. Inst. n. 1826-1831.
NEW. Something not known before.
2. To be patented, an invention must be new. When an invention has been
described in a printed book which has been publicly circulated, and
afterwards a person takes out a patent for it, his patent is invalid,
because the invention was not new, 7 Mann' & Gr. 818. See New and Useful
Invention.
NEW AND USEFUL INVENTION. This phrase is used in the act of congress
relating to granting patents for inventions.
2. The invention to be patented must not only be new, but useful; that
is, useful in contradistinction to frivolous or mischievous inventions. It
is not meant that the invention should in all cases be superior to the modes
now in use for the same purposes. 1 Mason's C. C. R. 182; 1 Mason's C. C. R.
302; 4 Wash. C. C. R. 9: 1 Pet. C, C. R. 480, 481; 1 Paine's C. C. R. 203; 3
Mann. Gr. & Scott, 425. The law as to the usefulness of the invention is the
same in France. Renouard, c. 5, s. 16, n. 1, page 177.
NEW FOR OLD. A term used in the law of insurance in cases of adjustment of a
loss, when it has been but partial. In making such adjustment the rule is to
apply the old materials towards the payment of the new, by deducting the
value of them from the gross amount of the expenses for repairs, and to
allow the deduction of one-third new for old upon the balance. See 1 Cowen,
265; 4 Cowen, 245; 4 Ohio, 284; 7 Pick. 259; 14 Pick. 141.
NEW HAMPSHIRE. The name of one of the original states of the United States
of America. During its provincial state, New Hampshire was governed, down to
the period of the Revolution, by the authority of royal commissions. Its
general assembly enacted the laws necessary for its welfare, in the manner
provided for by the commission under which they then acted. 1 Story on the
Const. Book, 1, c. 5, Sec. 78 to 81.
2. The constitution of this state was altered and amended by a
convention of delegates, held at Concord, in the said state, by adjournment,
on the second Wednesday of February, 1792.
3. The powers of the government are divided into three branches, the
legislative, the executive, and the judicial.
4.-1st. The supreme legislative power is vested in the senate and
house of representatives, each of which bas a negative on the other.
5. The senate and house are required to assemble on the first Wednesday
in June, and at such times as they may judge necessary and are declared to
be dissolved seven days next preceding the first Wednesday in June. They are
styled The General Court of New Hampshire.
6.-1. The senate. It will be considered with reference to the
qualifications of the electors the qualifications of the members; the number
of members; the duration of their office; and the time and place of their
election.
7.-1. Every male inhabitant of each town, and parish with town
privileges, and places unincorporated, in this state, of twenty-one years of
age and upwards, excepting paupers, and persons excused from paying taxes at
their own request, have a right at the annual or other town meetings of the
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inhabitants of said towns and parishes, to be duly warned and holden
annually forever in the month of March, to vote in the town or parish
wherein he dwells, for the senators of the county or district whereof be is
a member.
8.-2. No person shall be capable of being elected a senator, who is
not seised of a freehold estate, in his own right, of the value of two
hundred pounds, lying within this state, who is not of the age of thirty
years, and who shall not have been an inhabitant of this state for seven
years immediately preceding his election, and a the time thereof he shall be
an inhabitant of the district for which he shall be chosen.
9.-3. The senate is to consist of twelve members.
10.-4. The senators are to hold their offices from the first Wednesday
in June next ensuing their election.
5. The senators are elected by the electors in the month of March.
11.-2. The house of representatives will be considered in relation to
its constitution, under the same divisions which have been made in relation
to the senate.
12.-1. The electors are the same who vote for senators.
13.-2. Every member of the house of representatives shall be chosen by
ballot; and for two years at least next preceding his election, shall have
been an inhabitant of this state; shall have an estate within the district
which he may be chosen to represent, of the value of one hundred pounds, one
half of which to be a freehold, whereof he is seised in his own right; shall
be, at the time of his election, an inhabitant of the district he may be
chosen to represent and shall cease to represent such district immediately
on his ceasing to be qualified as aforesaid.
14.-3. There shall be in the legislature of this state, a
representation of the people, annually elected, and founded upon principles
of equality; and in order that such representation may be as equal as
circumstances will admit, every town, parish, or place, entitled to town
privileges, having one hundred and fifty rateable male polls, of twenty-one
years of age, and upwards, may elect one representative; if four hundred and
fifty rateable male polls, may elect two representatives; and so, proceeding
in that proportion, make three hundred such rateable polls, the mean of
increasing number, for every additional representative. Such towns,
parishes, or places, as have less than one hundred and fifty rateable polls,
shall be classed by the general assembly, for the purpose of choosing a
representative, and seasonably notified thereof. And in every class formed
for the above mentioned purpose, the first annual meeting shall be held in
the town, parish, or place, wherein most of the rateable polls reside; and
afterwards in that which has the next highest number and so on, annually, by
rotation, through the several towns, parishes, or places forming the
district. Whenever any town, parish, or place entitled to town privileges,
as aforesaid, shall not have one hundred and fifty rateable polls, and be so
situated as to render the classing thereof with any, other town, parish, or
place very inconvenient; the general assembly may, upon application of a
majority of the voters of such town, parish, or place, issue a writ for
their selecting and sending, a representative to the general court.
15.-4. The members are to be chosen annually.
16.-5. The election is to be in the month of March.
17.-2. The executive power consists of a governor and a council.
18.-1. Of the governor. 1. The qualifications of electors of governor,
are the same as those of senators.
19.-2. The governor, at the time of his election, must have been an
inhabitant of this state for the seven years next preceding, be of the age
of thirty years, and have an estate of the value of five hundred pounds,
one-half of which must consist of a freehold in his own right, within the
state.
20.-3. He is elected annually.
21.-4. The election is in the month of March.
22.-5. His general powers and duties are as follows, namely 1. In case
of any infectious distemper prevailing in the place where the general court
at any time is to convene, or any other cause whereby dangers may arise to
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the health or lives of the members from their attendance, the governor may
direct the session to be holden at some other. 2. He is invested with the
veto power. 3. He is commander-in-chief of the army and navy, and is
invested with power on this subject very minutely described in the
constitution as follows, namely: The governor of the state for the time being
shall be commander-in-chief of the army and navy, and all the military
forces of this state, by sea and land: and shall have full power, by himself
or by any chief commander, or other officer or officers, from time to time,
to train, instruct, exercise and govern the militia and navy; and for the
special defence and safety of this state, to assemble in martial array, and
put in warlike posture the inhabitants thereof, and to lead and conduct
them, and with them encounter, repulse, repel, resist, and pursue, by force
of arms, as well by sea as by land, within and without the limits of this
state; and also to kill, slay, destroy, if necessary, and conquer by all
fitting ways, enterprise and means, all and every such person and persons as
shall at any time hereafter in a hostile manner attempt or enterprise the
destruction invasion, detriment, or annoyance of this state; and to use and
exercise over the army and navy, and over the militia in actual service, the
law martial in time of war, invasion, and also in rebellion, declared by the
legislature to exist, as occasion shill necessarily require. And surprise,
by all ways and means whatsoever, all and every such person or persons, with
their ships, arms, ammunition, and other goods, as shall in a hostile manner
invade, or attempt the invading, conquering, or annoying this state: And, in
fine, the governor is hereby entrusted with all other powers incident to the
office of captain-general and commander-in-chief, and admiral, to be
exercised agreeably to the rules and regulations of the constitution, and
the laws of the land: Provided, that the governor shall not at any, time
hereafter, by virtue of any power by this constitution granted, or hereafter
to be granted to him by the legislature, transport any of the inhabitants of
this state, or oblige them to march out of the limits of the same, without
their free and voluntary consent, or the consent of the general court, nor
grant commissions for exercising the law martial in any case, without the
advice and consent of the council.
23. Whenever the chair of the governor shall become vacant, by reason
of* his death, absence from the state or otherwise, the president of the
senate shall, during such 'Vacancy, have and exercise all the powers and
authorities which, by this constitution, the governor is vested with, when
personally present; but when the president of the senate shall exercise the
office of governor, he shall not hold his office in the senate.
24.-2. The council. 1. This body is elected by the freeholders and
other inhabitants qualified to vote for senators. 2. No person shall be
capable of being elected a councilor who has not an estate of the value of
five hundred pounds within this state, three hundred pounds of which (or
more) shall be a freehold in his own right, and who is not thirty years of
age; and who shall not have been in inhabitant of this state for seven years
immediately preceding his election; and at the time of his election an
inhabitant of the county in which he is elected. 3. The council consists of
five members. 4. They are elected annually. 5. The election is in the month
of March. 6. Their principal duty is to advise the governor.
25.-3. The governor and council jointly. Their principal, powers and
duties are as follows: 1. They may adjourn the general court not exceeding
ninety days at one time, when the two houses cannot agree as to the time of
adjournment. 2. They are required to appoint all judicial officers, the
attorney-general, solicitors, all sheriffs, coroners, registers of probate,
and all officers of the navy, and general and field officers of the militia;
in these cases the governor and council have a negative on each other. 3.
They have the power of pardoning offences, after conviction, except in cases
of impeachment.
26.-2d. The judicial power is distributed as follows:
The tenure that all commissioned officers shall have by law in their
offices, shall be expressed in their respective commissions all judicial
officers, duly appointed, commissioned and sworn, shall hold. their offices
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during good behaviour, excepting those concerning whom there is a different
provision made in this constitution: Provided, nevertheless, the governor,
with consent of council, may remove them upon the address of both houses of
the legislature.
27. Each branch of the legislature, as well as the governor and council,
shall have authority to require the opinions of the justices of the superior
court, upon important questions of law, and upon solemn occasions.
28. In order that the people play not suffer from the long continuance
in, place of any justice of the peace, who shall fail in discharging the
important duties of his office with ability and fidelity, all commissions of
justices of the peace shall become void at the expiration of five years from
their respective dates; and upon the expiration of any commission, the same
may, if necessary, be renewed, or another person appointed, as shall most
conduce to the well being of the state.
29. All causes of marriage, divorce, and alimony, and all appeals from
the respective judges of probate, shall be heard and tried by the superior
court until the legislature shall by law make other provision.
30. The general court are empowered to give to justices of the peace
jurisdiction in civil causes, when the damages demanded shall not exceed
four pounds, and title of real estate is not concerned but with right of
appeal to either party, to some other court, so that a trial by jury in the
last resort may be had.
31. No person shall hold the office of a judge in any court, or judge of
probate, or sheriff of any county, after he has attained the age of seventy
years.
32. No judge of any court, or justice of the peace, shall act as
attorney, or be of counsel, to any Party, or originate any civil suit, in
matters which shall come or be brought before him as judge, or justice of
the peace.
33. All matters relating to the probate of wills, and granting letters
of administration, shall be exercised by the judges of probate, in such
manner as the legislature have directed, or may hereafter direct; and the
judges of probate shall hold their courts at such place or places, on such
fixed days as the conveniency of the people may require, and the legislature
from time to time appoint.
34. No judge or register of probate, shall be of counsel, act as
advocate, or receive any fees as advocate or counsel, in any probate
business which is pending or may be brought into any court of probate in the
county of which he is judge or register.
NEW JERSEY. The name of one of the original states of the United States of
America. This state, when it was first settled, was divided into, two
provinces, which bore the names of East Jersey and West Jersey. They were
granted to different proprietaries. Serious dissensions having arisen
between them, and between them and New York, induced the proprietaries of
both provinces to make a formal surrender of all their powers of government,
but not of their lands, to Queen Anne, in April, 1702; they were immediately
reunited in one province, and governed by a governor appointed by the crown,
assisted by a council, and an assembly of the representatives of the people,
chosen by the freeholders. This form of government continued till the
American Revolution.
2. A constitution was adopted for New Jersey on the second day of July,
1776, which continued in force till the first day of September, 1844,
inclusive. A convention was assembled at Trenton on the 14th of May, 1844;
it continued in, session till the 29th day of Tune, 1844, when the new
constitution was adopted, and it is provided by art. 8, s. 4, that this
constitution shall take effect and go into operation on the second day of
September, 1844.
3. By art. 3, the powers of the government are divided into three
distinct department, the legislative, executive and judicial. It further
provided that no person or persons belonging to, or constituting one of
these departments, shall exercise any of the powers properly belonging to
either of the others, except therein expressed.
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4.-Sec. 1. The legislative power shall be vested in a senate and
general assembly. Art. 4, s. 1, n. 1.
5.-1st. In treating of the senate, it will be proper to consider, 1.
The of senators. 2. Of the electors of senators. 3. Of the number of
senators. 4. Of the time for which they are elected.
6.-1. No person shall be a member of the senate, who shall not have
attained the age of thirty years, and have been a citizen and inhabitant of
the state for four years, and of the county for which he shall be chosen one
year, next before his election. And he must be entitled to suffrage at the
time of his election. Art. 4, s. 1, n. 2.
7.-2. Every white male citizen of the United States, of the age of
twenty-one years, who shall have been a resident of this state one year, and
of the county in which he claims his vote five months next before the
election, shall be entitled to vote for all officers that now are, or
hereafter may be elective by the people; provided, that no person in the
military, naval, or marine service of the United States, shall be considered
a resident in this state, by, being stationed in any garrison, barrack, or
military or naval place or station within this state; and no pauper, idiot,
insane person, or person convicted of a crime which now excludes him from
being a witness, unless pardoned or restored by law to the right of
suffrage, shall enjoy the right of an elector.
8.-3. The senate shall be composed of one senator from each county in
the state. Art. 4, s. 2, n. 1.
9.-4. The senators are elected on the second Tuesday of October, for
three years. Art. 4, s. 2, n. 1. As soon as the senate shall meet after the
first election to be held in pursuance of this constitution, they shall be
divided, as equally as may be, into three classes. The seats of the,
senators of the first class shall be vacated at the expiration of the first
year; of the second class at the expiration of the second year; and of the
third class at the expiration of the third year; so that one class may be
elected every year; and if vacancies happen, by resignation or otherwise,
the person elected to supply such vacancies shall be elected for the
unexpired terms only. Art. 4, s. 2, n. 2.
10.-2d. The general assembly will be considered in the same order that
has been observed in speaking of the senate.
11.-1. No person shall be a member, of the general assembly, who shall
not have attained the age of twenty-one years, and have been a citizen and
inhabitant of the state for two years, and of the county for which he shall
be chosen one year next before his election. He must be entitled to this
right of suffrage. Art. 4, s. 1, n. 2.
12.-2. The same persons who elect senators elect members of the
general assembly.
13.-3. The general assembly shall be composed of members annually
elected by the legal voters of the counties, respectively, who shall be
apportioned among the said counties as nearly as may be according to the
number of their inhabitants. The present apportionment shall continue until
the next census of the United States shall have been taken, and an
apportionment of members of the general assembly shall be made by the
legislature, at its first session after the next and every subsequent
enumeration or census, and when made shall remain unaltered until another
enumeration shall have been taken; provided, that each county shall at all
times be entitled to one member: and the whole number of members shall never
exceed sixty.
14.-4. Members of the legislature are elected yearly on the second
Tuesday of October.
15.-3d. The powers of the respective houses are as follows:
16.-1. Each house shall direct writs of election for supplying
vacancies, occasioned by death, resignation, or:otherwise; but if vacancies
occur during the recess of the legislature, the writs may be issued by the
governor, under such regulations as may be prescribed by law.
17.-2. Each house shall be the judge of the elections, returns, and
qualifications of its own members, and a majority of each shall constitute a
quorum to do business; but a smaller number may adjourn from day to day, and
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may be. authorized to compel the attendance of absent members, in such
manner and under such penalties as each house may provide.
18.-3. Each house shall choose its own officers, determine the rules
of its proceedings, punish its members for disorderly behaviour, and, with
the concurrence of two-thirds, may expel a member.
19.-4. Each house shall keep a journal of its proceedings, and from
time to time publish the same; and the yeas and nays of the members of
either house, on any question, shall, at the desire of one-fifth of those
present, be entered on the journal.
20.-5. Neither house, during the session of the legislature, shall,
without the consent of the other, adjourn for more than three days, nor to
any other place than that in which the two houses shall be sitting.
21.-6. All bills and joint resolutions shall be read three time; in
each house, before the final passage thereof; and no bill or joint
resolution shall pass, unless there be a majority of all the members of each
house personally present and agreeing thereto: and the yeas and nays of
members voting on such final passage shall be entered on the journal.
22.-7. Members of the senate and general assembly shall receive a
compensation for their services, to be ascertained by law, and paid out of
the treasury of the state; which compensation shall not exceed the sum of
three dollars per day for the period of forty days from the commencement of
the session; and shall not exceed the sum of one dollar and fifty cents per
day for the remainder of the session. When convened in extra session by the
governor, they shall receive such sum as shall be fixed for the first forty
days of the ordinary session. They shall also receive the sum of one dollar
for every ten miles they shall travel, in going to and returning from their
place of meeting, on the most usual route. The president of the senate, and
the speaker of the house of assembly shall, in virtue of their offices,
receive an additional compensation equal to one-third of their per diem
allowance as members.
23.-8. Members of the senate and of the general assembly shall, in all
cases except treason, felony, and breach of the peace, be privileged from
arrest during their attendance at the sitting of their respective houses,
and in going to and returning from the same: and for any speech or debate,
in either house, they shall not be questioned in any other place.
24.-Sec. 2. By the fifth article of the constitution, the executive
power is vested in a governor. It will be convenient to consider, 1. The
qualifications of the governor. 2. By whom he is elected. 3. The duration of
his office. 4. His powers: and 5. His salary.
25.-1. The governor shall be not less than thirty years of age, and
shall have been for twenty years, at least, a citizen of the United States,
and a resident of this state seven years next before his election, unless be
shall have been absent during that time on the public business of the United
States or of this state.
26.-2. He is chosen by the legal voters of the state.
27.-3. The governor holds his office for three years, to commence on
the third Tuesday of January next ensuing the election of governor by the
people, and to end on the Monday preceding the third Tuesday of January,
three years thereafter; and he cannot nominate nor appoint to office during
the last week of his term. He is not reeligible without an intermission of
three years. Art. 5, n. 3.
28.-4. His powers are as follows: He shall be the commander-in-chief
of all the military and naval forces of the state; he shall have power to
convene the legislature, whenever, in his opinion, public necessity requires
it; he shall communicate, by message, to the legislature, at the opening of
each session, and at such other times as he may deem necessary, the
condition of the state, and recommend such measures as he may deem
expedient; he shall take care that the laws be faithfully executed, and
grant, under the great seal of the state, commissions to all such officers
as shall be required to be commissioned.
29. Every bill which shall have passed both houses shall be presented to
the governor: if he approve, he shall sign it, but if not, he shall return
it, with his objections, to the house in which it shall have originated, who
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shall enter the objections at large on their journal, and proceed to
reconsider it; if, after such reconsideration, a majority of the whole
number of that house shall agree to pass the bill, it shall be sent,
together with the objections, to the other house, by which it shall likewise
be reconsidered, and if approved of by a majority of the whole number of
that house, it shall become a law; but in neither house shall the vote be
taken on the same day on which the bill shall be returned to it; and in all
such cases the votes of both houses shall be determined by yeas and nays,
and the names of the persons voting for and against the bill shall be
entered on the journal of each house respectively. If any bill shall not be
returned by the governor, within five days (Sunday excepted) after it shall
have been presented to him, the same shall be a law, in like manner as if he
had signed it, unless the legislature, by their adjournment, prevent its
return, in which case it shall not be a law.
30. The governor, or person administering the government, shall have
power to suspend the collection of fines and forfeitures, and to grant
reprieves, to extend until the expiration of a time not exceeding ninety
days after conviction but this power shall not extend to cases of
impeachment.
31. The governor, or person administering the government, the
chancellor, and the six judges of the court of errors and appeals, or a
major part of them, of whom the governor or person administering the
government shall be one, may remit fines and forfeitures, and grant pardons
after conviction, in all cages except impeachment.
32.-5. The governor shall, at stated times, receive for his services a
compensation which shall be neither increased nor diminished during 'the
period for which be shall have been elected.
33.-Sec. 3. The judicial power shall be vested in a court of errors
and appeals in the last resort in all causes, as heretofore; a court for the
trial of impeachments; a court of chancery; a prerogative court; a supreme
court; circuit courts, and such inferior courts as now exist, and as may be
hereafter ordained and established by law; which inferior courts the
legislature may alter or abolish, as the public good shall require.
34.-1. The court of errors and appeals shall consist of the
chancellor, the justices of the supreme court, and six judges, or a major
part of them; which judges are to be appointed for six years.
35.-2. Immediately after the court shall first assemble, the six
judges shall arrange themselves; in such manner that the seat of one of them
shall be vacated every year, in order that thereafter one judge may be
annually appointed.
36.-3. Such of the six judges as shall attend the court shall receive,
respectively, a per diem compensation, to be provided by law.
37.-4. The secretary of state shall be the clerk of this court.
38.-5. When an appeal from an order or decree shall be heard, the
chancellor shall inform the court, in writing, of the reasons for his order
or decree but he shall not sit as a member, or have a voice in the hearing
or final sentence.
39.-6. When a writ of error shall be brought, no justice who has given
a judicial opinion in the cause, in favor of or against any error complained
of, shall sit as a member, or have a voice on the hearing, or for its
affirmance or reversal; but the reasons for such opinion shall be assigned
to the court in writing.
40.-1. The house of assembly shall have the sole power of impeaching,
by a vote of a majority of all the members; and all impeachments shall be
tried by the senate: the members, when sitting for that purpose, to be on
oath or affirmation "truly and impartially to try and determine the charge
in question according to evidence:" and no person shall be convicted without
the concurrence of two-thirds of all the members of the senate.
41.-2. Any individual officer impeached shall be suspended from
exercising his office until his acquittal.
42.-3. Judgment, in cases of impeachment, shall not extend farther
than. to removal from, office and to disqualification to hold and enjoy any
office of honor, profit, or trust under this state; but the party convicted
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shall nevertheless be liable to indictment, trial, and punishment, according
to law.
43.-4. The secretary of state shall be the clerk of this court.
44.-1. The court of chancery shall consist of a chancellor.
45.-2. The chancellor shall be the ordinary, or surrogate-general, and
judge of the prerogative court.
46.-3. All persons aggrieved by any order, sentence, or decree of the
orphans' court may appeal from the same, or from any part thereof, to the
prerogative court; but such order, sentence, or decree shall not be removed
into the supreme court, or circuit court if the subject matter thereof be
within the jurisdiction of the orphans' court.
47.-4. The secretary of state shall be the register of the prerogative
court, and shall perform the duties required of him by law in that respect.
48.-1. The supreme court shall consist of a chief justice and four
associate justices. The number of associate justices may be increased or
decreased by law, but shall never be less than two.
49.-2. The circuit courts shall be held in every county of this state,
by one or more of the justices of the supreme court, or a judge appointed
for that purpose; and shall in all cases within the county, except in those
of a criminal nature, have common law jurisdiction concurrent with the
supreme court; and any final judgment of a circuit court may be docketed in
the supreme court, and shall operate as a judgment obtained in the supreme
court, from the time of such docketing.
50.-3. Final judgments in any circuit court may be brought by writ of
error into the supreme court, or directly into the court of errors and
appeals.
51.-1. There shall be no more than five judges of the inferior court
of common pleas in each of the counties in this state after the terms of the
judges of said court now in office shall terminate. One judge for each
county shall be appointed every year, and no more, except to fill vacancies,
which shall be for the unexpired term only.
52.-2. The commissions for the first appointments of judges of said
court shall bear date and take effect on the first day of April next; and an
subsequent commissions for judges of said court shall bear date and take
effect on the first day of April in every successive year, except
commissions to fill vacancies, which shall hear date and take effect when
issued.
53.-1. There may be elected under this constitution two, and not more
than five, justices of the peace in each of the townships of the several
counties of this state, and in each of the wards, in cities that may vote in
wards. When a township or ward contains two thousand inhabitants or less, it
may have two justices; when it contains more than two thousand inhabitants,
and not more than four thousand, it may have four justices; and when it
contains more than four thousand inhabitants, it may have, five justices;
provided, that whenever any township, not voting in wards, contains more
than seven thousand inhabitants, such township) may have an additional
justice for each additional three thousand inhabitants above four thousand.
54.-2. The population of the townships in the several counties of the
state and of the several wards shall be ascertained by the lost preceding
census of the United States, until the legislature shall provide by law some
other mode of ascertaining it.
NEW MATTER, pleading. All facts alleged in pleading, which go in avoidance
of what is before, pleaded, on the opposite side, are called new matter. In
other words, every allegation made in the pleadings, subsequent to the
declaration, and which does not go in denial of what is before alleged on
the other side, is an allegation of new matter; generally, all new matter
must be followed by a verification. (q.v.) Gould, Pl. c. 3, Sec. 195; 1
Saund. 103, n. 1; Steph. PI. 251; Com. Dig. Pleader, E 32; 2 Lev. 5; Vent.
121; 1 Chit. PI. 538; 3 Bouv. Inst. n. 2983. In proceedings in equity, when
new matter has been discovered by either plaintiff or defendant, before a
decree has been pronounced, a cross bill has been permitted to bring such
matter before, the court to answer the purposes of justice. After the answer
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has been filed, it cannot be introduced by amendment; the only way to
introduce it, is by filing a supplemental bill. 4 Bouv. Inst. n. 4385-87;
1 Paige 200; Harring. Ch. 438.
NEW PROMISE. A contract made, after the original promise has for some cause
been rendered, invalid, by which the promiser agrees to fulfill such original
promise.
2. When a debtor has been discharged under the bankrupt laws, the
remedy against him is clearly gone, so when an infant has made a contract
prejudicial to his interest, he may avoid it; and when by lapse of time a
debt is barred by the act of limitations, the debtor may take advantage of
the act, but in all these cases there remains a moral obligation, and if the
original promiser renews the contract by a new promise, this is a sufficient
consideration. See 8 Mass. 127; 2 S. & It. 208; 2 Rawle, 351; 5 Har. & John.
216; 2 Esp. C. 736; 2 H. Bl. 116; 8 Moore, 261; 1 Bing. 281; 1 Dougl. 192;
Cowp. 544; Bac. Ab. Infancy and A e, I; Bac. Ab. Limitation of actions, E 85
3. Formerly the courts construed the slightest admission of the debtor
as evidence of a new promise to pay; but of late years a more reasonable
construction is put upon men's contracts, and the promise must be express,
or at least, the acknowledgment of indebtedness must not be inconsistent
with a promise to pay. 4 Greenl. 41, 413; 2 Hill's S. C. 326; 2 Pick. 368; 1
South. 153; 14 S. & R. 195; 1 McMull. R. 197; 3 Harring. 508; 7 Watts &
Serg. 180; 10 Watts, 172; 6 Watts & Serg. 213; 5 Shep. 349; 5 Smed. & Marsh.
564; 1 Bouv. Inst. n. 866.
NEW TRIAL, practice, A reexamination of an issue in fact, before a court and
jury, which had been tried, at least once, before the same court and a jury.
2. The origin of the practice of granting new trials is concealed in
the night of time.
3. Formerly new trials could be obtained only with the greatest
difficulties, but by the modern practice, they are liberally granted in
furtherance of justice.
4. The reasons for granting new trials are numerous, and may be classed
as follows; namely:
1. Matters which arose before and in the course of trial. These are,
1st. Want of due notice. Justice requires that the defendant should have
sufficient notice of the time and place of trial; and the want of it, unless
it has been waived by an appearance, and making defence, will, in general,
be sufficient to entitle the defendant to a new trial. Bull., N. P. 327; 3
Price's Ex. R. 72; 3 Dougl. 402; 1 Wend. R. 22. But the insufficiency of the
notice must have been calculated reasonably to mislead the defendant. 7 T.
R. 59. 2d, The irregular impanelling of the jury; for example, if a person
not duly qualified to serve be sworn: 4 T. R. 473; or if a juror not
regularly summoned and returned personate another. Willes, 484; S. C.
Barnes, 453. In Pennsylvania, by statutory, provision, going on to trial
will cure the defect, both in civil and criminal cases. 3d. The admission of
illegal testimony. 3 Cowen's Rep. 712 2 Hall's R. 40. 4 Chit. Pr. 33 4th.
The rejection of legal testimony. 6 Mod. 242; 3 B. & C. 494; 1 Bing. R. 38;
1 John. IR,. 508; 7 Wend. R. 371; 3 Mass. 124; 6 Mass. R. 391. But a new
trial will not be granted for the rejection of a witness on the supposed
ground of incompetency, when another witness establishes the same fact, and
it is not disputed by the other side. 2 East, R. 451; and see other
exceptions in 1 John. R. 509; 4 Ohio Rep. 49; 1 Charlt. B. 227; 2 John. Cas.
318. 5th. The misdirection of the judge. Vide article Misdirection, and 4
Chit. Pr. 38.
5.-2. The acts of the prevailing party, his agents or counsel. For
example, when papers, not previously submitted, are surreptitiously handed
to the jury, being material on the point in issue. Co. Litt. 227; 1 Sid.
235; 4 W. C. C. R. 149. Or if the party, or one on his behalf, directly
approach a juror on the subject of the trial. Cro. Eliz. 189; 1 Serg. &
Rawle, 169; 7 Serg. & Rawle, 358; 4 Binn. 150; 13 Mass. R. 218; 2 Bay R. 94;
6 Greenl. R. 140. But if the other party is aware of such attempts, and he
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neglects to correct them when in his power, this will not be a sufficient
reason for granting a new trial. 11 Mod. 118. When indirect measures have
been resorted to, to prejudice the jury; 3 Brod. & Bing. 272; 7 Moore's R.
87; 7 East, R. 108; or tricks practiced; 11 Mod. 141; or disingenuous
attempts to suppress or stifle evidence, or thwart the proceedings, or to
obtain an unconscientious advantage, or to mislead the court and jury, they
will be defeated by granting a new trial. Grah. N. T. 56; 4 Chit. Pr. 59.
6.-3. The misconduct of the jury, as if they acted in disregard of
their oaths; Cro. Eliz. 778; drinking spirituous liquors, after being
charged with the cause; 4 Cowen's R. 26; 7 Cowen's R. 562; or resorting to
artifice to get rid of their confinement; 5 Cowen's R. 283; and such like
causes will avoid a verdict. Bunb. 51; Barnes, 438; 1 Str. 462; 2 Bl. R.
1299; Comb. 357; 4 Chit. Pr. 48 to 55. See, t's to the nature of the
evidence to be received to prove misconduct of the jury, 1 T. R. 11; 4 Binn.
R. 150; 7 S. & R. 458.
7.-4. Cases in which the verdict is improper, because it is either
void, against law, against evidence, or the damages are excessive. 1. When
the verdict is contrary to the record; 2 Roll. 691; 2 Co. 4; or it finds a
matter entirely out of the issue; Hob. 53; or finds only a part of the
issue; Co. Litt. 227; or when it is uncertain; 8 Co. 65; a new trial will be
granted. 2. When the verdict is. clearly against law, and injustice has been
done, it will be set aside. Grah. N. T. 341, 356. 3. And so will a verdict
be set aside if given clearly against evidence, and the presiding judge is
dissatisfied. Grah. N. T. 368. 4. When the damages are excessive, and appear
to have been given in consequence of prejudice, rather, than as an act of
deliberate judgment. Grah. N. T. 410; 4 Chit. Pr. 63; 1 M. & G. 222; 39 E.
C. L. R. 422.
8.-5. Cases in which the party was deprived of his evidence by
accident or because he was not aware of it. The non-attendance of witnesses,
their mistakes, their interests, their infirmities, their bias, their
partial or perverted views of facts, their veracity, their turpitude, pass
in review, and in proportion as they bear upon the merits avoid or confirm
the verdict. The absence of a material piece of testimony or the non-
attendance of witnesses, contrary to reasonable expectation, and reasonably
accounted for, will induce the court to set aside the verdict, and grant a
new trial; 6 Mod. 22 11 Mod. 1; 2 Chit. Rep. 195; 14 John. R. 112; 2 John.
Cas. 318; 2 Murph, R. 384; as, if the witness absent himself with out the
party's knowledge after the cause is called on,; 14 John. R. 112; or is
suddenly taken sick; 1 McClel. R. 179 and the like. The court will also
grant a new trial, when the losing party has discovered material evidence
since the trial, which would probably produce, a different result; this
evidence must be accompanied by proof of previous diligence to procure it.
To succeed, the applicant must show four things: 1. The names of the new
witnesses discovered. 2. That the applicant has been diligent in preparing,
his cage for trial. 3. That the new facts were discovered after the trial
and will be important. 4. That the evidence discovered will tend to prove
facts which were not directly in, issue on the trial, or were not then known
and investigated by proof. 8 J. J. Marsh. R. 521; 2 J. J. Marsh. R. 52; 5
Serg. & Rawle, 41; 6 Greenl. R. 479; 4 Ohio Rep. 5; 2 Caines' R. 155; 2 W.
C. C. R. 411; 16 Mart. Louis. Rep. 419; 2 Aiken, Rep, 407; 1 Haist. R. 434;
Grah. N. T. ch. 13.
9. New trials may be granted in criminal as well as in civil cases,
when the defendant is convicted, even of the highest offences. 3 Dall. R.
515; 1 Bay, R. 372; 7 Wend. 417; 5 Wend. 39. But when the defendant is
acquitted, the humane influence of the law, in cases of felony, mingling
justice with mercy, in favorem vitae et libertatis, does not permit a new
trial. In cases of misdemeanor, after conviction a new trial may be granted
in order to fulfill the purpose of substantial justice; yet, there are no
instances of new trials after acquittal, unless in cases where the defendant
has procured his acquittal by unfair practices. 1 Chit. Cr. Law, 654; 4
Chit. Pr. 80. Vide, generally, 21 Vin. Ab. 474 to 493; 3 Chit. Bl. Co 387,
n.; 18 E. C. L. R. 74, 334; Bac. Ab. Trial, L; 1 Sell. Pr. 482; Tidd's Pr.
934, 939; Graham on New Trials 3 Chit. Pr. 47; Dane's Ab. h.t.; Com. Dig.
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Pleader, IR. 17; 4 Chitty's Practice, part 7, ch. 3. The rules laid down to
authorize the granting of new trials in Louisiana, will be found in the Code
of Practice, art. 557 to 563.
NEW WORK. In Louisiana, by a new work is understood every sort of edifice or
other work, which is newly commenced on any ground whatever.
2. When the ancient form of the work is changed, either by an addition
being made to it, or by some part of the ancient work being taken away, it
is styled also a new work. Civ. Code of Lo. 852; Puff. b. 8, c. 5, SS 3;
Nov. Rec. L. 1, tit. 32; Asso y Manuel, b. 2, tit. 6, p. 144.
NEW YORK. The name of one of the original states of the United States of
America. In its colonial condition this state was governed from the period
of the revolution of 1688, by governors appointed by the crown assisted by a
council, which received its appointments also from the parental government,
and by the representatives of the people. 1 Story, Const. B. 1, ch. 10.
2. The present constitution of the state was adopted by a convention of
the people, at Albany, on the ninth day of October, 1846, and went into
force from and including the first day of January, 1847. The powers of the
government are distributed among three classes of magistrates, the
legislative, the executive, and the judicial;
3.-Sec. 1. The legislative power is vested in a senate and assembly.
By the second article, section first, of the constitution, the
qualifications of the electors are thus described, namely:: Every male
citizen of the age of twenty-one years, who shall have been a citizen for
ten days, and an inhabitant of this state one year next, preceding any
election, and for the last four months a resident of the county where he may
offer his vote, shall be entitled to vote at such election in the election
district of which he shall at the time be a resident, and not elsewhere, for
all officers that now are or hereafter may be elective by the people; but
such citizen shall have been for thirty days next preceding the election, a
resident of the district from which the officer is to be chosen for whom he
offers his vote. But no man of color, unless he shall have been for three
years a citizen of this state, and for one year next preceding any election
shall have been seised and possessed of a freehold estate of the value of
two hundred and fifty dollars, over and above all debts and incumbrances,
charged thereon, and shall have been actually rated and paid a tax thereon,
shall be entitled to vote at such election. And no person of color shall be
subject to direct taxation unless he shall be seised and possessed of such
real estate as aforesaid.
4. The third article provides as follows:
Sect. 6. The members of the legislature shall receive for their
services, a sum not exceeding three dollars a day, from the commencement of
the session; but such pay shall not exceed in the aggregate, three hundred
dollars for per them allowance, except in proceedings for impeachment. The
limitation as to the aggregate compensation shall not take effect until the
year one thousand eight hundred and forty-eight. When convened in extra
session by the governor, they shall receive three dollars per day. They
shall also receive the sum of one dollar for every ten miles they shall
travel, in going to and returning from their place of meeting on the most
usual route. The speaker of the assembly shall, in virtue of his office,
receive an additional compensation equal to one-third of his per them
allowance as a member.
Sect. 7. No member of the legislature shall receive any civil
appointment within this state, or to the senate of the United States, from
the governor, the governor and senate, or from the legislature, during the
term for which he shall have been elected; and all such appointments, and
all votes given for any such member, for any such office or appointment,
shall be void.
Sect. 8. No person being a member of congress, or holding any judicial
or military office under the United States, shall hold a seat in the
legislature. And if any person shall, after his election as a member of the
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legislature, be elected to congress, or appointed to any office, civil or
military, under the government of the United States, his acceptance thereof
shall vacate his seat.
Sect. 9. The elections of senators and members of assembly, pursuant to
the provisions of this constitution, shall be held on the Tuesday succeeding
the first Monday of November, unless otherwise directed by the legislature.
Sect. 10. A majority of each house shall constitute a quorum to do
business. Each house shall determine the rules of its own proceedings, and
be the judge of the elections, returns and qualifications of its own
members, shall choose its own officers, and the senate shall choose a
temporary president, when the lieutenant. governor shall not attend as
president, or shall act as governor.
Sect. 11. Each house shall keep a journal of its proceedings, and
publish the same, except such parts as may require secrecy. The doors of
each house shall be kept open, except when the public welfare shall require
secrecy. Neither house shall, without the consent of the other, adjourn for
more than two days.
Sect. 12. For any speech or debate in either house of the, legislature,
the members shall not be questioned in any other place.
5.-1. The senate consists of thirty-two members, chosen by the
electors. The state is divided into thirty-two districts, and each
district elects one senator.
6. Senators are chosen for two years. 20
7.-2. The assembly shall consist of one hundred and twenty-eight
members. Art. 3, s. 2.
8. The state shall be divided into assembly districts as provided by
the fifth section of the third article of the constitution as follows:
The members of assembly shall be apportioned among the several counties
of this state, by the legislature, as nearly as may be, according to the
number of their respective inhabitants, excluding aliens, and persons of
color not taxed, and shall be chosen by single districts.
"The several boards of supervisors in such counties of this state, as
are now entitled to more than one member of assembly, shall assemble on the
first Tuesday of January next, and divide their respective counties into
assembly districts equal to the number of members of assembly to which such
counties are now severally entitled by law, and shall cause to be filed in
the offices of the secretary of state and the clerks of their respective
counties, a description of such assembly districts, specifying the number of
each district and the population thereof, according to the last preceding
state enumeration, as near as can be ascertained. Each assembly district
shall contain, as nearly as may be, an equal number of inhabitants,
excluding aliens and persons of color not taxed, and shall consist of
convenient. and contiguous territory; but no town shall be divided in the
formation of assembly districts.
"The legislature, at its first session after the return of every
enumeration, shall re-apportion the members of assembly among the several
counties of this state, in manner aforesaid, and the boards of supervisors
in such counties as, may be entitled, under such reapportionment, to more
than one member, shall assemble at such time as the legislature making such
reapportionment shall prescribe, and divide such counties into assembly
districts, in the manner herein directed and the apportionment and districts
so to be made, shall remain unaltered until another enumeration shall be
taken under the provisions of the preceding section.
"Every county heretofore established and separately organized, except
the county of Hamilton, shall always be entitled to one member of the
assembly, and no new county shall be hereafter erected, unless its
population shall entitle it to a member.
"The county of Hamilton shall elect with the county of Fulton, until the
population of the county of Hamilton shall, according to the ratio, be
entitled to a member."
9. The members of assembly are elected annually.
10.-Sec. 2. The fourth article vests the executive power as follows:
"Sect. 1. The executive power shall be vested in a governor, who shall
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hold his office for two years; a lieutenant governor shall be chosen at the
same time, and for the same term.
"Sect. 2. No person except a citizen of the United States, shall be
eligible to the office of governor; nor shall any person be eligible to that
office, who shall not have attained the age of thirty years, and who shall
not have been five years next preceding his election, a resident within this
state.
"Sect. 3. The governor and lieutenant governor shall be elected at the
times and places of choosing members of the assembly. The persons
respectively having the highest number of votes for governor and lieutenant
governor, shall be elected; but in case two or more shall have an equal and
the highest number of votes for governor, or for lieutenant governor, the
two houses of the legislature at its next annual session, shall, forthwith,
by joint ballot, choose one of the said persons so having an equal and the
highest number of votes for governor or lieutenant governor.
"Sect. 4. The governor shall be commander-in-chief of the military and
naval forces of the state. He shall have power to convene the legislature
(or the senate only) on extraordinary occasions. He shall communicate by
message to the legislature at every session, the condition of the state, and
recommend such matters to them as be shall judge expedient. He shall
transact all necessary business with the officers of government, civil and
military. He shall expedite all such measures, as may be resolved upon by
the legislature, and shall take care that the laws are faithfully executed.
He shall, at stated times, receive for his services, a compensation to be
established by law, which shall neither be increased nor diminished after
his election and during his continuance in office.
"Sect. 5. The governor shall have the power to grant reprieves,
commutations and pardons after conviction, for all offences except treason
and cases of impeachment, upon such conditions, and with such restrictions
and limitations, as he may think proper, subject to such regulation as may
be provided by law relative to the manner of applying for pardons. Upon
conviction for treason, he shall have power to suspend the execution of the
sentence, until the Offence shall be reported to the legislature at its next
meeting, when the legislature shall either pardon, or commute the sentence,
direct the execution of the sentence, or grant a further reprieve. He shall
annually communicate to the legislature each case of reprieve, commutation
or pardon granted stating the name of the convict, the crime of which he was
convicted, the sentence and its date, and the date of the commutation,
pardon or reprieve.
"Sect. 6. In case of the impeachment of the governor, of his removal from
office, death, inability to discharge the powers and duties of the said
office, resignation or absence from the state, the powers and duties of the
office shall devolve upon the lieutenant governor for the residue of the
term, or until the disability shall cease. But when the governor shall, with
the consent of the legislature, be out of the state in time of war, at the
head of a military force thereof, he shall continue commander-in-chief of
all the military force of the state.
"Sect. 7. The lieutenant governor shall possess the same qualifications
of eligibility for office as the governor. He shall be president of the
senate, but shall have only a casting vote therein. If during a vacancy of
the office of governor, the lieutenant governor shall be impeached,
displaced, resign, die, or become incapable of performing the duties of his
office, or be absent from the state, the president of the senate shall act
as governor, until the vacancy be filled, or the disability shall cease.
"Sect. 8. The lieutenant governor shall, while acting as such, receive a
compensation which shall be fixed by law, and which shall not be increased
or diminished during his continuance in office.
"Sect. 9. Every bill which shall have passed the senate and assembly,
shall, before it becomes a law, be presented to the governor; if be approve,
he shall Sign it; but if not, he shall return it with his objections to that
house in which it shall have originated; who shall enter the objections at
large on their journal, and proceed to reconsider it. If after such
reconsideration, two-thirds of the members present shall agree to pass the
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bill, it shall be sent, together with the objections, to the other house, by
which it shall likewise be reconsidered: and if approved by two-thirds of
all the members present, it shall become a law, notwithstanding the
objections of the governor. But in all such cases, the votes of both houses
shall be determined by yeas and nays, and the flames of the members voting
for and against the bill, shall be entered on the journal of each house
respectively. If any bill shall not be returned by the governor within ten
days (Sundays excepted) after it shall have been presented to him, the same
shall be a law, in like manner as if he had signed it, unless the
legislature shall, by their adjournment, prevent its return; in which case
it shall not be a law."
11.-Sec. 3. The sixth article distributes the judicial power as
follows:
"Sect. 1. The assembly shall have the power of impeachment, by the vote
of a majority of all the members elected. The court for the trial of
impeachments, shall be composed of the president of the senate, the
senators, or a major part of them, and, the judges of the court of appeals,
or the major part of them. On the trial of an impeachment against the
governor, the lieutenant governor shall not act as a member of the court. No
judicial officer shall exercise his office after he shall have been
impeached, until he shall have been acquitted. Before the trial of an
impeachment, the members of the court shall take, an oath or affirmation,
truly and impartially to try the impeachment, according to evidence; and no
person shall be convicted without the concurrence of two-thirds of the
members present. Judgment, in cases of impeachment, shall not extend further
than to removal from office, or removal from office and disqualification to
hold and enjoy any office of honor, trust, or profit under this state; but
the party impeached shall be liable to indictment, and punishment according
to law.
"Sect. 2. There shall be a court of appeals, composed of eight judges, of
whom four shall be elected by the electors of the state for eight years, and
four selected from the class of justices of the supreme court, having the
shortest time to serve. Provision shall be made by law, for designating one
of the number elected, as chief judge, and for selecting such justices of
the supreme court, from time to time, and for so classifying those elected,
that one shall be elected every second year.
"Sect. 3. There shall be a supreme court having general jurisdiction in
law and equity.
"Sect. 4. The state shall be divided into eight judicial districts, of
which the city of New York shall be one: the others to be bounded by county
lines. and to be compact, and equal in population, as nearly as may be.
There shall be four justices of the supreme court in each district, and as
many more in the district composed of the city of New York, as may from time
to time be authorized by law, but not to exceed in the whole such number in
proportion to its population, as shall be in conformity with the number of
such judges in the residue of the state in proportion to its population.
They shall be classified so that one of the justices of each district shall
go out of office at the end of every two years. After the expiration of
their terms under such classification, the term of their office shall be
eight years.
"Sect. 5. The legislature shall have the same powers to alter and
regulate the jurisdiction and proceedings in law and equity, as they have
heretofore possessed.
"Sect. 6. Provisions may be made by law for designating, from time to
time, one or more of the said justices, who is not a judge of the court of
appeals, to preside at the general terms of the said court to be held in the
several districts. Any three or more of the said justices, of whom one of
the said justices so designated shall always be one, may hold: such general
terms. And any one or more of the justices may hold special terms and
circuit courts, and any one of them may preside in courts of oyer and
terminer in any county.
"Sect. 7. The judges of the court of appeals and justices of the supreme
court, shall severally receive, at stated times, for their services, a
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compensation to be established by law, which shall not be increased or
diminished during their continuance in office.
"Sect. 8. They shall not hold any other office or public trust. All votes
for either of them, for any elective office, (except that of justice of the
supreme court, or judge of the court of appeals,) given by the legislature
or the people, shall be void. They shall not exercise any power of
appointment to public office. Any male citizen of the age of twenty-one
years, of good moral character, and who possesses the requisite
qualifications of learning and ability, shall be entitled to admission to
practice in all the courts of this state.
"Sect. 9. The classification of the justices of the supreme court; the
times and place of holding the terms of the court of appeals, and of the
general and special terms of the supreme court within the several districts,
and the circuit courts and courts of oyer and terminer within the several
counties, shall be provided for by law.
"Sect. 10. The testimony in equity cases shall be taken in like manner as
in cases at law.
"Sect. 11. Justices of the supreme court and judges of the court of
appeals, way be removed by concurrent resolution of both houses of the
legislature, if two-thirds of all the members elected to the assembly, and a
majority of all the members elected to the senate, concur therein. All
judicial officers, except those mentioned in this section, and except
justices of the peace, and judges and justices of inferior courts not of
record, may be removed by the senate, on the recommendation of the governor:
but no removal shall be made by virtue of this section, unless the cause
thereof be entered on the journals, nor unless the party complained of,
shall have been served with a copy of the complaint against him, and shall
have had an opportunity of being heard in his defence. On the question of
removal, the ayes and noes shall be entered on the journals.
"Sect. 12. The judges of the court of appeals shall be elected by the
electors of the state, and the justices of the supreme court by the electors
of the several judicial districts, at such times as may be proscribed by
law.
"Sect. 13. In case the office of any judge of the court of appeals, or
justice of the supreme court, shall become vacant before the expiration of
the regular term for which he was elected, the vacancy may be filled by
appointment by the governor, until it shall be supplied at the next general
election of judges, when it shall be filled by election, for the residue of
the unexpired term.
Sect. 14. There shall be elected in each of the counties of this state,
except the city and county of New York, one county judge, who shall hold his
office for four years. He shall hold the county court, and perform the
duties of the office of surrogate. The county court shall have such
jurisdiction in cases arising in justices' courts, and in special cases, as
the legislature may prescribe, but shall have no original civil
jurisdiction, except in such special cases.
"The county judge, with two justices of the peace, to be designated
according to law, may hold courts of sessions, with such criminal
jurisdiction as the legislature shall prescribe, and perform such other
duties as may be required by law.
"The county judge shall receive an annual salary, to be fixed by the
board of supervisors, which shall be neither increased nor diminished
during his continuance in office. The justices of the peace for services in
courts of sessions, shall be paid a per diem allowance out of the county
treasury.
"In counties having a population exceeding forty thousand, the
legislature may provide for the election of a separate officer to perform
the duties of the office of surrogate.
"The legislature may confer equity jurisdiction in special cases upon
the county judge.
"Inferior local courts, of civil and criminal jurisdiction, may be
established by the legislature in cities; and such courts, except for the
cities of New York and Buffalo, shall have an uniform organization and
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jurisdiction in such cities.
"Sect. 15. The legislature may, on application of the board of
supervisors, provide for the election of local officers, not to exceed two
in any county, to discharge the duties of county judge, and of surrogate in
cases of their inability, or of a vacancy, and to exercise such other powers
in special cases as may be provided by law.
"Sect. 16. The legislature may reorganize the judicial districts at the
first session after the return of every enumeration under this constitution,
in the manner provided for in the fourth section of this article, and at no
other time; and they may, at such session, increase or diminish the number
of districts, but such increase or diminution shall not, be more than one
district at any one time. Each district shall have four justices of the
supreme court; but no diminution of the districts shall have the effect to
remove a judge from office.
"Sect. 17. The electors of the several towns shall, at their annual town
meeting, and in such manner as the legislature may direct, elect justices of
the peace, whose term of office shall be four years. In case of an election
to fill a vacancy occurring before the expiration of a full term, they shall
hold for the residue of the unexpired term. Their number and classification
may be regulated by law. Justices of the peace and judges or justices of
inferior courts, not of record, and their clerks, may be removed, (after due
notice and an opportunity of being beard in their defence) by such county,
city or state courts as may be prescribed by law, for causes to be assigned
in the order of removal.
"Sect. 18. All judicial officers of cities and villages, and all such
judicial officers is may be created therein by law, shall be elected at such
times and in such manner as the legislature may direct.
"Sect. 19. The clerks of the several counties of this state shall be
clerks of the supreme court, with such powers and duties as shall be
prescribed by law. A clerk for the court of appeals, to be ex officio clerk
of the supreme court, and to keep his office at the seat of government,
shall be chosen by the electors of the state; he shall hold his office for
three years, and his compensation shall be fixed by law and paid out of the
public treasury.
"Sec. 20. No judicial officer, except justices of the peace, shall
receive to his own use any fees or perquisites of office.
"Sect. 21. The legislature may authorize the judgments, decrees and
decisions of any local inferior court of record of original civil
jurisdiction, established removed for review directly into the court of
appeals.
"Sect. 22. The legislature shall provide for the speedy publication of
all statute laws, and of such judicial decisions as it may deem expedient.
And all laws and judicial decisions shall be free for publication by any
person.
"Sect. 23. Tribunals of conciliation may be established, with such
powers and duties as may be prescribed by law; but such tribunals shall have
no power to render judgment to be obligatory on the parties, except they
voluntarily submit their matters in difference and agree to abide the
judgment, or assent thereto, in the presence of such tribunal, in such cases
as shall be prescribed by law."
"Sect. 25. The legislature, at its first session after the adoption of
this constitution, shall provide for the organization of the court of
appeals, and for transferring to it the business pending in the court for
the correction of errors, and for the allowance of writs of error and
appeals to the court of appeals, from the judgments and decrees of the
present court of chancery and supreme court, and of the courts that may be
organized under this constitution."
12. The sixth article, section 24, provides that the legislature, at its
first session after the adoption of this constitution, shall provide for the
appointment of three commissioners, whose duty it shall be to revise,
reform, simplify and abridge the rules and practice, pleadings, forms and
proceedings of the courts of record of this state, and to report thereon to
the legislature, subject to their adoption and modification from time to
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time.
13. In pursuance of the provisions of this section, commissioners were
appointed to revise the laws on the subject of the practice, pleadings and
proceedings of the courts of this state, who made a report to the
legislature. This report, with some alterations, was enacted into a law on
the 12th of April, 1848, ch. 379, by which the forms of action are
abolished, and the whole subject is extremely simplified. How it will work
in practice, time will make manifest.
NEWLY DISCOVERED EVIDENCE. That evidence which, after diligent search for
it, was not discovered until after the trial of a cause.
2. In general a new trial will be granted on the ground that new,
important, and material evidence has been discovered since the trial of the
cause. 2 Wash. C. C. 411. But this rule must be received with the following
qualifications: 1. When the evidence is merely cumulative, it is not
sufficient ground for a new trial. 1 Sumn. 451; 6 Pick. 114; 4 Halst. 228; 2
Caines, 129; 4 Wend. 579; 1 A. K. Marsh. 151; 8 John. 84; 15 John. 210; 5
Ham. 375 10 Pick. 16; 7 W. & S. 415; 11 Ohio, 147; 1 Scamm. 490; 1 Green,
177; 5 Pike, 403; 1 Ashm. 141; 2 Ashm. 69; 3 Vei in. 72; 3 A. K. Marsh.
104. 2. When the evidence is not material. 5 S. & R. 41; 1 P. A. Browne,
Appx. 71; 1 A. K. Marsh. 151. 3. The evidence must be discovered after the
trial, for if it be known before the verdict has been rendered, it is not
newly discovered. 2 Sumn. 19; 7 Cowen, 369; 2 A. K. Marsh. 42. 4. The
evidence must be such, that the party could not by due diligence have
discovered it before trial. 2 Binn. 582; 1 Misso. 49; 5 Halst. 250; 1 South.
338; 7 Halst. 225; 1 Blackf. 367; 11 Con. 15; 1 Bay, 263, 491; 4 Yeates,
446; 2 Fairf. 218; 7 Metc. 478; Dudl. G. Rep. 85; 9 Shepl. 246; 14 Vern.
414, 558; 2 Ashm. 41, 69; 6 Miss. 600 2 Pike, 133 7 Yerg. 432; 6 Blackf.
496; 1 Harr. 410.
NEWSPAPERS. Papers for conveying news, printed and distributed periodically.
2. To encourage their circulation the act of congress of March 3, 1825,
3 Story's L. U. S. 1994, enacts, Sec. 29. That every printer of newspapers
may rend one paper to each and every other printer of newspapers within the
United States, free of postage, under such regulations as the postmaster
general shall provide.
3.-Sec. 30. That all newspapers conveyed in the mail shall be under
cover, open at one end, and charged with the postage of one cent each, for
any distance not more than one hundred miles, and one and a half cents for
any greater distance: Provided That the postage of a single newspaper, from
any one place to another, in the same state, shall not exceed one cent, and
the postmaster general shall require those who receive newspapers by post,
to pay always the amount of one quarter's postage in advance; and should the
publisher of any newspaper, after being three mouths previously notified
that his paper is not taken out of the office, to which it is sent for
delivery, continue to forward such paper in the mail, the postmaster to
whose office such paper is sent, may dispose of the same for the postage,
unless the publisher shall pay it. If any person employed in any department
of the post office, shall improperly detain, delay, embezzle, or destroy any
newspaper, or shall permit any other person to do the like, or shall open or
permit any other to open, any mail, or packet of newspapers, not directed to
the office where he is employed, such offender shall, on conviction thereof,
forfeit a sum, not exceeding fifty dollars, for every such offence. And if
any other person shall open any mail or packet of newspapers, or shall
embezzle or destroy the same, not being directed to such person, or not
being authorized to receive or open the same, such offender shall, on the
conviction thereof, pay a sum not exceeding twenty dollars for every such
offence. And if any person shall take, or steal, any packet, bag, or mail of
newspapers, from, or out of any post office, or from any person having
custody thereof, such person shall, on conviction, be imprisoned, not
exceeding three mouths, for every, such offence, to be kept at hard labor
during the period of such imprisonment. If any person shall enclose or
conceal a letter, or other thing, or any memorandum in writing, in a
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newspaper, pamphlet, or magazine, or in any package of newspapers,
pamphlets, or magazines, or make any writing or memorandum thereon, which he
shall have delivered into any post office, or to any person for that
purpose, in order that the same may be carried by post, free of letter
postage, he shall forfeit the sum of five dollars for every such offence;
and the letter, newspaper, package, memorandum, or other thing, shall not be
delivered to the person to whom it is directed, until the amount of single
letter postage is paid for each article of which the package is composed. No
newspapers shall be received by the postmasters, to be conveyed by post,
unless they are sufficiently dried and enclosed in proper wrappers, on
which, besides the direction, shall be noted the number of papers which are
enclosed for subscribers, and the number for printers: Provided, That the
number need hot be endorsed, if the publisher shall agree to furnish the
postmaster, at the close of each quarter, a certified statement of the
number of papers sent in the mail, chargeable with postage. The postmaster
general, in any contract he may enter into for the conveyance of the mail,
may authorize the person with whom such contract is to be made, to carry
newspapers, magazines, and pamphlets, other than those conveyed in the mail:
Provided, That no preference shall be given to the publisher of one
newspaper over that of another, in the same place. When the mode of
conveyance, and size of the mail, will admit of it, such magazines and
pamphlets as are published periodically, may be transported in the mail, to
subscribers, at one and a half cents a sheet, for any distance riot
exceeding one hundred miles, and two and a half cents for any greater
distance. And such magazines and pamphlets as are not published
periodically, if sent in the mail, shall be charged with a postage of four
cents on each sheet, for any distance not exceeding one hundred miles, and
six cents for any greater distance. By the act of March 3, 1851, c. 20, s.
2, it is enacted, That all newspapers not exceeding three ounces in weight
sent from the office of publication to actual and bona fide subscribers,
shall be charged with postage is follows, to wit weekly only, within the
county where published, free; for any distance not exceeding fifty miles out
of the county, five cents per quarter; exceeding fifty, and not exceeding
three hundred miles, ten cents per quarter; exceeding three hundred and not
exceeding one thousand miles, fifteen cents per quarter; exceeding one
thousand and not exceeding two thousand miles, twenty cents per quarter
exceeding two thousand and not exceeding four thousand, twenty-five cents
per quarter; exceeding four thousand miles, thirty cents per quarter;
newspapers published monthly, sent to actual and bona fide subscribers, one-
fourth the foregoing rates; published semi-monthly, one-half the foregoing
rates; semi-weekly, double those rates; tri-weekly, treble those rates; and
oftener than tri-weekly, five times those rates; Provided, That newspapers
not containing over three hundred square inches may be transmitted at one-
fourth the above rates. See, as to other newspapers, Postage.
NEXT FRIEND. One who, without being regularly appointed guardian, acts for
the benefit of an infant, married woman, or other person, not sui juris.
Vide Amy; Prochein Amy.
NEXT OF KIN. This term is used to signify the relations of a party who has
died intestate.
2. In general no one comes within this term who is not included in the
provisions of the statutes of distribution. 3 Atk. 422, 761; 1 Ves. sen. 84.
A wife cannot, in general, claim as next of kin of her husband, nor a
husband as next of kin of his wife. But when there are circumstances in a
will which induce a belief of an intention to include them under this term,
they will be so considered, though in the ordinary sense of the word, they
are not. Hov. Fr. 288, 9; 1 My. & Keen, 82. Vide Branch; Kindred; Line.
NEXUM, Rom. civ. law. Viewed as to its object and legal effect, nexum was
either the transfer of the ownership of a thing, or the transfer of a thing
to a creditor as a security. Accordingly in one sense nexum included
mancipium, in another sense mancipium and nexum are opposed in the same way
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in which sale and mortgage or pledge are opposed. The formal part of both
transactions consisted in a transfer per Des et libram. The person who
became nexus by the effect of a nexum, placed himself in a servile
condition, not becoming a slave, his ingenuitas being only in suspense, and
was said nexum inire. The phrases nexi datio, nexi liberatio, respectively
express the contracting and the release from the obligation.
2. The Roman law, as to the payment of borrowed money, was very strict.
A curious passage of Gellius (xx. 1) gives us the ancient mode of legal
procedure in the case of debt as fixed by the Twelve Tables. If the debtor
admitted the debt, or bad been condemned in the amount of the debt by a
judex, he had thirty days allowed him for payment. At the expiration of this
time he was liable to the manus. injectio, and ultimately to be assigned
over to the creditor (addictus) by the sentence of the praetor. The creditor
was required to keep him for sixty days in chains, during which time he
publicly exposed the debtor, on three nundinae, and proclaimed the amount of
his debt. If no person released the prisoner by paying the debt, the
creditor might sell him as a slave or put him to death. If there were
several debtors, the letter of the law allowed them to cut the debtor in
pieces, and take their share of his body in proportion to their debt.
Gellius says that there was no instance of a creditor ever having adopted
this extreme mode of satisfying his debt. But the creditor might treat the
debtor, who was addictus, as a slave, and compel him to work out his debt,
and the treatment was often very severe. In this passage Gellius does not
speak of nexi but only of addicti, which is sometimes alleged as evidence of
the identity of nexus and addictus, but it proves no such identity. If a
nexus is what he is here supposed to be, the laws of the Twelve Tables could
not apply; for when a man became nexus with respect to one creditor, he
could not become nexus to another; and if he became nexus to several at
once, in this case the creditors must abide by their contract in taking a
joint security. This law of the Twelve Tables only applied to the case of a
debtor being signed over by a judicial sentence to several debtors, and it
provided for a settlement of their conflicting claims. The precise condition
of a nexus has, however, been a subject of much discussion among scholars.
Smith, Dict. Rom. & Gr. Antiq. h.v., and vide Mancipitem.
NIECE, domestic relations: The daughter of a person's brother or sister.
Amb. 514; 1 Jacob's Ch. R. 207.
NIEF, old Eng. law. A woman born in vassalage. In Latin she was called
Nativa.
NOMINATE CONTRACT, civil law. Nominate contracts are those which have a
particular name to distinguish them; as, purchase and sale, hiring,
partnership, loan for use, deposit, and the like. Dig. 2, 14, 7, 1.
Innominate contracts, (q.v.) are those which have no particular name. Dig.
19, 4, 1, 2 Code, 4, 64, 3.
NON AGE. By this term is understood that period of life from the birth till
the arrival of twenty-one years. In another sense it means under the proper
age to be of ability to do a particular thing; as, when non age is applied
to one under the age of fourteen, who is unable to marry.
NON ASSUMPSIT, pleading. The general issue in trespass on the case, in the
species of assumpsit. Its form is, "And the said C D, by E F, his attorney,
comes and defends the wrong and injury, when, &c., and says, that he did not
undertake or promise in manner and form as the said A B, hath above
complained. And of this he puts himself upon the country."
2. Under this plea almost every matter may be given in evidence, on the
ground, it is said, that as the action is founded on the contract, and the
injury is the non, performance of it, evidence which disaffirms the
obligation of the contract, at the time when the action was commenced, goes
to the gist of the action. Gilb. C. P. 6 5; Salk. 27 9; 2 Str. 738; 1 B. &
P. 481. Vide 12 Vin. Ab. 189; Com Dig. Pleader, 2 G 1.
NON ASSUMPSIT INFRA SEX ANNOS. The name of a plea by which the defendant
avers that he did not assume to perform the assumption charged in the
declaration within six years.
2. The act of limitation bars the recovery of a simple contract debt
after six years; when a defendant is sued on such a contract, and it is more
than six years since he entered into the contract, he pleads this plea by
the following formula: "and saith that the aforesaid plaintiff the action
aforesaid hereof against him he ought not to have, because he saith that he
did not undertake, &c., and this he is ready to verify." Vide _dio non
accrevit infra sex annos.
NON BIS IN IDEM, civil law. This phrase signifies that no one shall be twice
tried for the same offence; that is, that when a party accused has been once
tried by a tribunal in the last resort, and either convicted or acquitted,
he shall not again be tried. Code 9, 2, 9 & 11. Merl. Repert. h.t. Vide
art. Jeopardy.
NON CEPIT MODO ET FORMA, pleading. The general issue in replevin. Its form
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is, "And the said C D, by E F, his attorney, comes and defends the wrong and
injury, when, &c., and says, that he did not take the said cattle, (or '
goods and chattels,' according. to the subject of the action,) in the said
declaration mentioned or any of them, in manner and form as the said A B
hath above complained. And of this the said C D puts himself upon the
country."
2. This issue applies to a case where the defendant has not, in fact,
taken the cattle or goods, or where he did not take them, or have them in
the place mentioned in the declaration. The declaration alleges that the
defendant "took certain cattle or goods of the plaintiff, in a certain
place called," &c.; and the general issue states, that he did not take the
said cattle or goods, in manner and form as alleged;" which involves a
denial of the taking and of the place in which the taking was alleged to
have been, the place being a material point in this action. Steph. PI. 183,
4; 1 Chit. Pl. 490.
NON CLAIM. An omission or neglect by one entitled to make a demand within
the time limited by law; as, when a continual claim ought to be made, a
neglect to make such claim within a year and a day.
NON COMPOS MENTIS, persons. These words signify not of sound mind, memory,
or understanding. This is a generic term, and includes all the species of
madness, whether it arise from, 1, idiocy; 2, sickness 3, lunacy or 4,
drunkenness. Co. Litt. 247; 4 Co. 124; 1 Phillim. R. 100; 4 Com. Dig. 613; 5
Com. Dig. 186; Shelf. on Lunatics, 1; and the articles Idiocy; Lunacy.
NON CONCESSIT, Eng. law. The name of a plea by which the defendant denies
that the crown granted to the plaintiff by letters patent, the rights which
he claims as a concession from the king; as, for example, when a plaintiff
sues another for the infringement of his patent right, the defendant way
deny that the crown has granted him such a right.
2. The plea of non concessit does not deny the grant of a patent, but
of the patent as described in the plaintiff's declaration. 3 Burr. 1544; 6
Co. 15, b.
NON CONFORMISTS English law. A name given to certain dissenters from the
rites and ceremonies of the church of England.
NON CONSTAT. It does not appear. These words are frequently used,
particularly in argument; as, it was moved in arrest of judgment that the
declaration was not good, because non constat whether A B was seventeen
years of age when the action was commenced. Sw. pt. 4, SS 22, p. 331.
NON DEDIT, pleading. The general issue in formedon. See Ne dona pas.
NON DEMISIT, pleading. A plea proper to be pleaded to an action of debt for
rent, when the plaintiff declares on a parol lease. Gilb. Debt, 436, 438;
Bull. N. P. 177; 1 Chit. Pl. 477.
2. It is improper to plead such plea when the demise is stated to have
been by indenture. Id.; 12 Vin. Ab. 178; Com. Dig. Pleader, 2 W 48.
NON DETINET, pleading. The general issue in an action of detinue. Its form
is as follows:: And the said C D, by E F, his attorney, comes and defends
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the wrong and injury, when, &c., and says, that he does not detain the said
goods and chattels (or, deeds and writings,' according to the subject of the
action,) in the said declaration specified, or any part thereof, in manner
and form as the said A B bath above complained. And of this the said C D
puts himself upon the country."
2. In debt on simple contract, in the case of executors and
administrators, instead of pleading nil debet, the plea should be "doth, not
detain.". 6 East, R. 549; Bac. Abr. Pleas, I; 1 Chit. PI. 476. 3. The plea
of non detinet merely puts in issue the simple fact of detainer; when the
defendant relies upon a justifiable detainer, he must plead it specially. 8
D. P C. 347.
NON EST FACTUM, pleading. The general issue in debt on bond or other
specialty, and is, in form, as follows: "I and the said C D, by E F, his
attorney, comes and defends the wrong and injury, when, &c., and says, that
the said supposed writing obligatory, (or 'indenture,' or 'articles of
agreement,' according to the subject of the action,) is not his deed. And of
this he puts himself upon the country." 6 Rand. Rep. 86; 1 Litt. R. 158.
2. Though non est factum is, in most cases, the general issue in debt
on specialty, yet, when the deed is only inducement to the action, the
general issue is nil debet. Steph. Pl. 174, n.
3. In covenant tlie general issue is non est factum; and its form is
similar to that in debt on a specialty. Id. 174. It is, however, said, that
in covenant there is, strictly speaking, no general issue, as the plea of
non est factum only puts the deed in issue, as in debt on a specialty, and
not the breach of covenant or any other matter of defence. 1 Chit. PI. 482.
See generally, 1 Harring. R. 230; 6 Munf. R. 462; Minor, R. 103; 1 Harr. &
Gill, 324; 13 John. R, 430; 12 John. R. 337; 2 N. H. Rep. 74; 4 Wend. R.
519; 2 N. & M. 492. See Issint; Special non est factum.
NON EST INVENTUS, practice. The sheriff's return to a writ requiring him to
arrest the person of the defendant, which signifies that he is not to be
found within his jurisdiction. The return is usually abbreviated N. E. I.
Chit. Pr. Index, L. t.
NON FEASANCE, torts, contracts. The non-performance of some act which ought
to be performed.
2. When a legislative act requires a person to do a thing, its non
feasance will subject the party to punishment; as, if a statute require the
supervisors of the highways to repair such highways, the neglect to repair
them may be punished. Vide 1 Russ. on Cr. 48.
3. Mere non-feasance does not imply malice; this is strongly
exemplified in the case of a plaintiff, who, having issued a writ of capias
against his debtor, afterwards received the debt, and neglected to
countermand the writ, in consequence of which the defendant was afterwards
arrested. On a suit brought by the former defendant against the former
plaintiff, it was held that the law did not impose on the first plaintiff
the duty of countermanding his writ. If he had refused to give the
countermand when requested, it might have been evidence of malice, but in
such case there would have been something beyond mere non-feasance, an
actual refusal. 1 B & P. 388; 3 East, R. 314; 2 Bos. & P. 129.
4. There is a difference between nonfeasance and misfeasance, (q.v.)
or malfeasance. (q.v.) Vide 2 Kent, Com. 443 Story on Bailm. Sec. 9, 165; 2
Vin. Ab. 35 1 Hawk. P. C. 13; Bouv. Inst. Index, h.t.
NON FECIT. He did not make it. The name of a plea, for example, in an action
of assumpsit on a promissory note. 3 Mann. Gr. 446.
NOVELLAE LEONIS. The ordinances of the emperor Leo, which were made from the
year 887 till the year 893, are so called. These novels changed many rules
of the Justinian law. This collection contains one hundred and thirteen
novels, written originally in Greek, and afterwards, in 1560, translated
into Latin, by Agilaeus.
NOVELS, civil law. The name given to some constitutions or laws of some of
the Roman emperors; this name was so given because they were new or
posterior to the laws which they had before published. The novels were made
to supply what bad not been foreseen in the preceding laws, or to amend or
alter the laws in force.
2. Although the novels of Justinian are the best known, and when the
word novels only is mentioned, those of Justinian are always intended, he
was not the first who gave the name of novels to his constitution and laws.
Some of the acts of Theodosius, Valentinien, Leo, Severus, Anthemius, and
others, were, also called novels. But the novels of the emperors who
preceded Justinian bad not the force of law, after the enactment of the law
by order of that emperor. Those novels are not, however, entirely useless,
because the code of Justinian having been composed mainly from the
Theodosian code and the novels, the latter frequently remove doubts which
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arise on the construction of the code. The novels of, Justinian form the
fourth part of the Corpus Juris Civilis. They are directed either to some,
officer, or an archbishop or bishop, or to some private individual of
Constantinople but they all had the force and authority of law. The number
of the novels is uncertain. The 118th novel is the foundation and groundwork
of the English statute of distribution of intestate's effects, which has
been copied into many states of the Union. Vide 1 P. Wms. 27; Pr. in Chan.
593
NOVUS HOMO. A new man; this term, is applied to a man who has been pardoned
of a crime, by which he is restored to society, and is rehabilitated.
NOXAL ACTTON, civil law. A personal, arbitrary, and indirect action in favor
of one who has been injured by the slave of another, by which the owner or
master of the slave was compelled either to pay the damages or abandon the
slave. Vide Abandonment for torts, and Inst. 4, 8; Dig. 9, 4; Code, 3, 41.
NUBILIS, civil law. One who is of a proper age to be married. Dig. 32,51.
NUDE. Naked. Figuratively, this word is applied to various subjects. 2. A
nude contract, nudum pactum, q.v.) is one without a consideration; nu de
matter, is a bare allegation of a thing done, without any evidence of it.
O.
OATH. A declaration made according to law, before a competent tribunal or
officer, to tell the truth; or it is the act of one who, when lawfully
required to tell the truth, takes God to witness that what he says is true.
It is a religious act by which the party invokes God not only to witness the
truth and sincerity of his promise, but also to avenge his imposture or
violated faith, or in other words to punish his perjury if he shall be
guilty of it. 10 Toull. n. 343 a 348; Puff. book, 4, c. 2, s. 4; Grot. book
2, c. 13, s. 1; Ruth Inst. book 1, ch. 14, s. 1; 1 Stark. Ev. 80; Merl.
Repert. Convention; Dalloz, Dict. Serment: Dur. n. 592, 593; 3 Bouv. Inst.
n. 3180.
2. It is proper to distinguish two things in oaths; 1. The invocation
by which the God of truth, who knows all things, is taken to witness. 2. The
imprecation by which he is asked as a just and all-powerful being, to punish
perjury.
3. The commencement of an oath is made by the party taking hold of the
book, after being required by the officer to do so, and ends generally with
the words,"so help you God," and kissing the book, when the form used is
that of swearing on the Evangelists. 9 Car. & P. 137.
4. Oaths are taken in various forms; the most usual is upon the Gospel
by taking the book in the hand; the words commonly used are, "You do swear
that," &c. "so help you God," and then kissing the book. The origin of this
oath may be traced to the Roman law, Nov. 8, tit. 3; Nov. 74, cap. 5; Nov.
124, cap. 1; and the kissing the book is said to be an imitation of the
priest's kissing the ritual as a sign of reverence, before he reads it to
the people. Rees, Cycl. h.v.
5. Another form is by the witness or party promising holding up his
right hand while the officer repeats to him,"You do swear by Almighty God,
the searcher of hearts, that," &c., "And this as you shall answer to God at
the great day."
6. In another form of attestation commonly called an affirmation,
(q.v.) the officer repeats, "You do solemnly, sincerely, and truly declare
and affirm, that," &c.
7. The oath, however, may be varied in any other form, in order to
conform to the religious opinions of the person who takes it. 16 Pick. 154,
156, 157; 6 Mass. 262; 2 Gallis. 346; Ry. & Mo. N. P. Cas. 77; 2 Hawks, 458.
8. Oaths may conveniently be divided into promissory, assertory,
judicial and extra judicial.
9. Among promissory oaths may be classed all those taken by public
officers on entering into office, to support the constitution of the United
States, and to perform the duties of the office.
10. Custom-house oaths and others required by law, not in judicial
proceedings, nor from officers entering into office, may be classed among
the assertory oaths, when the party merely asserts the fact to be true.
11. Judicial oaths, or those administered in judicial proceedings.
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12. Extra-judicial oaths are those taken without authority of law,
which, though binding in foro conscientiae, do not render the persons who
take them liable to the punishment of perjury, when false.
13. Oaths are also divided into various kinds with reference to the
purpose for which they are applied; as oath of allegiance, oath of calumny,
oath ad litem, decisory oath, oath of supremacy, and the like. As to the
persons authorized to administer oaths, see Gilp. R. 439; 1 Tyler, 347; 1
South. 297; 4 Wash. C. C. R. 555; 2 Blackf. 35.
14. The act of congress of June 1, 1789, 1 Story's L. U. S. p. 1,
regulates the time and manner of administering certain oaths as follows:
Sec. 1. Be it enacted, &c., That the oath or affirmation required by the
sixth article of the constitution of the United States, shall be
administered in the form following, to wit, "I, A B, do solemnly swear or
affirm, (as the case may be,) that I will support the constitution of the
United States." The said oath or affirmation shall be administered within
three days after the passing of this act, by any one member of the senate,
to the president of the senate, and by him to all the members, and to the
secretary; and by the speaker of the house of representatives, to all the
members who have not taken a similar oath, by virtue of a particular
resolution of the said house, and to the clerk: and in case of the absence
of any member from the service of either house, at the time prescribed for
taking the said oath or affirmation, the same shall be administered to such
member when he shall appear to take his seat.
15.-Sec. 2. That at the first session of congress after every general
election of representatives, the oath or affirmation aforesaid shall be
administered by any one member of the house of representatives to the
speaker; and by him to all the members present, and to the clerk, previous
to entering on any other business; and to the members who shall afterwards
appear, previous to taking their seats. The president of the senate for the
time being, shall also administer the said oath or affirmation to each
senator who shall hereafter be elected, previous to his taking his seat; and
in any future case of a president of the senate, who shall not have taken
the said oath or affirmation, the same shall be administered to him by any
one of the members of the senate.
16.-Sec. 3. That the members of the several state legislatures, at the
next session of the said legislatures respectively, and all executive and
judicial officers of the several states, who have been heretofore chosen or
appointed, or, who shall be chosen or appointed before the first day of
August next, and who shall then be in office, shall, within one month
thereafter, take the same oath or affirmation, except where they shall have
taken it before which may be administered by any person authorized by the
law of the state, in which such office shall be holden, to administer oaths.
And the members of the several state legislatures, and all executive and
judicial officers of the several states, who shall be chosen or appointed
after the said first day of August, shall, before they proceed to execute
the duties of their respective offices, take the foregoing oath or
affirmation, which shall be administered by the person or persons, who, by
the law of the state, shall be authorized to administer the oath of office;
and the person or persons so administering the oath hereby required to be
taken, shall cause a record or certificate thereof to be made, in the same
manner as, by the law of the state, he or they shall be directed to record
or certify the oath of office.
17.-Sec. 4. That all officers appointed or hereafter to be appointed,
under the authority of the United States, shall, before they act in their
respective offices, take the same oath or affirmation, which shall be
administered by the person or persons who shall be authorized by law to
administer to such officers their respective oaths of office; and such
officers shall incur the same penalties in case of failure, as shall be
imposed by law in case of failure in taking their respective oaths of
office.
18.-Sec. 5. That the secretary of the senate, and the clerk of the
house of representatives, for the time being, shall, at the time of taking
the oath or affirmation aforesaid, each take an oath or affirmation in the
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words following, to wit; "I, A B, secretary of the senate, or clerk of the
house of representatives (as the case may be) of the United States of
America, do solemnly swear or affirm, that I will truly and faithfully
discharge the duties of my said office to the best of my knowledge and
abilities."
19. There are several kinds of oaths, some of which are enumerated by
law.
20. Oath of calumny. This term is used in the civil law. It is an oath
which a plaintiff was obliged to take that he was not actuated by a spirit
of chicanery in commencing his action, but that he had bona fide a good
cause of action. Poth. Pand. lib. 5, t. 16 and 17, s. 124. This oath is
somewhat similar to our affidavit of a cause of action. Vide Dunlap's Adm.
Pr. 289, 290.
21. No instance is known in which the oath of calumny has been adopted
in practice in the admiralty courts of the United States; Dunl. Adm. Pr.
290; and by the 102d of the rules of the district court for the southern
district of New York, the oath of calumny shall not be required of any party
in any stage of a cause. Vide Inst. 4, 16, 1; Code, 2, 59, 2; Dig. 10, 2,
44; 1 Ware's R. 427.
22. Decisory oath. By this term in the civil law is understood an oath
which one of the parties defers or refers back to the other, for the
decision of the cause.
23. It may be deferred in any kind of civil contest whatever, in
questions of possession or of claim; in personal actions and in real. The
plaintiff may defer the oath to the defendant, whenever he conceives he has
not sufficient proof of the fact which is the foundation of his claim; and
in like manner, the defendant may defer it to the plaintiff when he has not
sufficient proof of his defence. The person to whom the oath is deferred,
ought either to take it or refer it back, and if he will not do either, the
cause should be decided against him. Poth. on Oblig. P. 4, c. 3, s. 4.
24. The decisory oath has been practically adopted in the district court
of the United States, for the district of Massachusetts, and admiralty
causes have been determined in that court by the oath decisory; but the
cases in which this oath has been adopted, have been where the tender has
been accepted; and no case is known to have occurred there in which the oath
has been refused and tendered back to the adversary. Dunl. Adm. Pr. 290,
291.
25. A judicial oath is a solemn declaration made in some form warranted
by law, before a court of justice or some officer authorized to administer
it, by which the person who takes it promises to tell the truth, the whole
truth, and nothing but the truth, in relation to his knowledge of the matter
then under examination, and appeals to God for his sincerity.
26. In the civil law, a judicial oath is that which is given in judgment
by one party to another. Dig. 12, 2, 25.
27. Oath in litem, in the civil law, is an oath which was deferred to
the complainant as to the value of the thing in dispute on failure of other
proof, particularly when there was a fraud on the part of the defendant, and
be suppressed proof in his possession. See Greenl. Ev. Sec. 348; Tait on Ev.
280; 1 Vern. 207; 1 Eq. Cas. Ab. 229; 1 Greenl. R. 27; 1 Yeates, R. 34; 12
Vin. Ab. 24. In general the oath of the party cannot, by the common law, be
received to establish his claim, but to this there are exceptions. The oath
in litem is admitted in two classes of cases: 1. Where it has been already
proved, that the party against whom it is offered has been guilty of some
fraud or other tortious or unwarrantable act of intermeddling with the
complainant's goods, and no other evidence can be had of the amount of
damages. As, for example, where a trunk of goods was delivered to a
shipmaster at one port to be carried to another, and, on the passage, he
broke the trunk open and rifled it of its contents; in an action by the
owners of the goods against the shipmaster, the facts above mentioned having
been proved aliunde, the plaintiff was held, a competent witness to testify
as to the contents of the trunk. 1 Greenl. 27; and see 10 Watts, 335; 1
Greenl. Ev. Sec. 348; 1 Yeates, 34; 2 Watts, 220; 1 Gilb. Ev. by Lofft, 244.
2. The oath in litem is also admitted on the ground of public policy, where
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it is deemed essential to the purposes of justice. Tait on Ev. 280. But this
oath is admitted only on the ground of necessity. An example may be
mentioned of a case where a statute can receive no execution, unless the
party interested be admitted as a witness. 16 Pet. 203.
28. A promissory oath is an oath taken, by authority of law, by which
the party declares that he will fulfill certain duties therein mentioned, as
the oath which an alien takes on becoming naturalized, that he will support
the constitution of the United States: the oath which a judge takes that he
will perform the duties of his office. The breach of this does not involve
the party in the legal crime or punishment of perjury.
29. A suppletory oath in the civil and ecclesiastical law, is an oath
required by the judge from either party in a cause, upon half proof already
made, which being joined to half proof, supplies the evidence required to
enable the judge to pass upon the subject. Vide Str. 80; 3 Bl. Com. 270.
30. A purgatory oath is one by which one destroys the presumptions which
were against him, for he is then said to purge himself, when he removes the
suspicions which were against him; as, when a man is in contempt for not
attending court as a witness, he may purge himself of the contempt, by
swearing to a fact which is an ample excuse. See Purgation.
OBEDIENCE. The performance of a command.
2. Officers who obey the command of their superiors, having
jurisdiction of the subject-matter, are not responsible for their acts. A
sheriff may therefore justify a trespass under an execution, when the court
has jurisdiction, although irregularly issued. 3 Chit. Pr. 75; Ham. N. P.
48.
3. A child, an apprentice, a pupil, a mariner, and a soldier, owe
respectively obedience to the lawful commands of the parent, the master, the
teacher, the captain of the ship, and the military officer having command;
and in case of disobedience, submission may be enforced by correction.
(q.v.)
OBIT. That particular solemnity or office for the dead, which the Roman
Catholic church appoints to be read or performed over the body of a deceased
member of that communion before interment; also the office which, upon the
anniversary of his death, was frequently used as a commemoration or
observance of the day. 2 Cro. 51; Dyer, 313.
OBLATION, eccl. law. In a general sense the property which accrues to the
church by any right or title whatever; but, in a more limited sense, it is
that which the priest receives at the altar, at the celebration of the
eucharist. Ayl. Par. 392.
OBLIGATION. In its general and most extensive sense, obligation is
synonymous with duty. In a more technical meaning, it is a tie which binds
us to pay or to do something agreeably to the laws and customs of the
country in which the obligation is made. Just. Inst. 1. 3, t. 14. The term
obligation also signifies the instrument or writing by which the contract is
witnessed. And in another sense, an obligation still subsists, although the
civil obligation is said to be a bond containing a penalty, with a condition
annexed for the payment of money, performance of covenants or the like; it
differs from a bill, which is generally without a penalty or condition,
though it may be obligatory. Co. Litt. 172. It is also defined to be a deed
whereby a man binds himself under a penalty to do a thing. Com. Dig.
Obligation, A. The word obligation, in its most technical signification, ex
vi termini, imports a sealed instrument. 2 S. & R. 502; 6 Vern. 40; 1
Blackf. 241; Harp. R. 434; 2 Porter, 19; 1 Bald. 129. See 1 Bell's Com. b.
3, p. 1, c. 1, page 293; Bouv. Inst. Index, h.t.
2. Obligations are divided into imperfect obligations, and perfect
obligations.
3. Imperfect obligations are those which are not binding on us as
between man and man, and for the non-performance of which we are accountable
to God only; such as charity or gratitude. In this sense an obligation is a
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mere duty. Poth. Ob. art. Prel. n. 1.
4. A perfect obligation is one which gives a right to another to
require us to give him something or not to do something. These obligations
are either natural or moral, or they are civil.
5. A natural or moral obligation is one which cannot be enforced by
action, but which is binding on the party who makes it, in conscience and
according to natural justice. As for instance, when the action is barred by
the act of limitation, a natural obligation is extinguished. 5 Binn. 573.
Although natural obligations cannot be enforced by action, they have the
following effect: 1. No suit will lie to recover back what has been paid, or
given in compliance with a natural obligation. 1 T. R. 285; 1 Dall. 184, 2.
A natural obligation is a sufficient consideration for a new contract. 5
Binn. 33; 2 Binn. 591; Yelv. 41, a, n. 1; Cowp. 290; 2 Bl. Com. 445; 3 B. &
P. 249, n.; 2 East, 506; 3 Taunt. 311; 5 Taunt. 36; Yelv. 41, b. note; 3
Pick. 207 Chit. Contr. 10.
6. A civil obligation is one which has a binding operation in law,
vinculum juris, and which gives to the obligee the right of enforcing it in
a court of justice; in other words, it is an engagement binding on the
obligor. 12 Wheat. It:. 318, 337; 4 Wheat. R. 197.
7. Civil obligations are divided into express and implied, pure. and
conditional, primitive and secondary, principal and accessory, absolute and
alternative, determinate and indeterminate, divisible and indivisible,
single and penal, and joint and several. They are also purely personal,
purely real, and both real and mixed at the same time.
8. Express or conventional obligations are those by which the obligor
binds himself in express terms to perform his obligation.
9. An implied obligation is one which arises by operation of law; as,
for example, if I send you daily a loaf of bread, without any express
authority, and you make use of it in your family, the law raises an
obligation on your part to pay me the value of the bread.
10. A pure or simple obligation is one which is not suspended by any
condition, either because it has been contacted without condition, or,
having been contracted with one, it has been fulfilled.
11. A conditional obligation is one the execution of which is suspended
by a condition which has not been accomplished, and subject to which it has
been contracted.
12. A primitive obligation, which in one sense may also be called a
principal obligation, is one which is contracted with a design that it
should, itself, be the first fulfilled.
13. A secondary obligation is one which is contrasted, and is to be
performed, in case the primitive cannot be. For example, if I sell you my
house, I bind myself to give a title, but I find I cannot, as the title is
in another, then my secondary obligation is to pay you damages for my non-
performance of my obligation.
14. A principal obligation is one which is the most important object of
the engagement of the contracting parties.
15. An accessory obligation is one which is dependent on the principal
obligation; for example, if I sell you a house and lot of ground, the
principal obligation on my part is to make you a title for it; the accessory
obligation is to deliver you all the title papers which I have relating to
it; to take care of the estate till it is delivered to you, and the like.
16. An absolute obligation is one which gives no alternative to the
obligor, but he is bound to fulfill it according to his engagement.
17. An alternative obligation is, where a person engages to do, or to
give several things in such a manner that the payment of one will acquit him
of all; as if A agrees to give B, upon a sufficient consideration, a horse,
or one hundred dollars. Poth. Obl. Pt. 2, c. 3, art. 6, No.. 245.
18. In order to constitute an alternative obligation, it is necessary
that two or more things should be promised disjunctively; where they are
promised conjunctively, there are as many obligations as the things which
are enumerated, but where they are in the alternative, though they are all
due, there is but one obligation, which may be discharged by the payment of
any of them.
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19. The choice of performing one of the obligations belongs to the
obligor, unless it is expressly agreed that all belong to the creditor.
Dougl. 14; 1 Lord Raym. 279; 4 N. S. 167. If one of the acts is prevented by
the obligee, or the act of God, the obligor is discharged from both. See 2
Evans' Poth. Ob. 52 to 54; Vin. Ab. Condition, S b; and articles
Conjunctive; Disjunctive; Election.
20. A determinate obligation, is one which has for its object a certain
thing; as an obligation to deliver a certain horse named Bucephalus. In
this case the obligation can only be discharged by delivering the identical
horse.
21. An indeterminate obligation is one where the obligor binds himself
to deliver one of a certain species; as, to deliver a horse, the delivery of
any horse will discharge the obligation.
22. A divisible obligation is one which being a unit may nevertheless be
lawfully divided with or without the consent of the parties. It is clear it
may be divided by consent, as those who made it, may modify or change it as
they please. But some obligations may be divided without the consent of the
obligor; as, where a tenant is bound to pay two hundred dollars a year rent
to his landlord, the obligation is entire, yet, if his landlord dies and
leaves two sons, each will be entitled to one hundred dollars; or if the
landlord sells one undivided half of the estate yielding the rent, the
purchaser will be entitled to receive one hundred dollars, and the seller
the other hundred. See Apportionment.
23. An indivisible obligation is one which is not susceptible of
division; as, for example, if I promise to pay you one hundred dollars, you
cannot assign one half of this to another, so as to give him a right of
action against me for his share. See Divisible.
24. A single obligation is one without any penalty; as, where I simply
promise to pay you one hundred dollars. This is called a single bill, when
it is under seal.
25. A penal obligation is one to which is attached a penal clause which
is to be enforced, if the principal obligation be not performed. In general
equity will relieve against a penalty, on the fulfillment of the principal
obligation. See Liquidated damages; Penalty.
26. A joint obligation is one by which several obligors promise to the
obligee to perform the obligation. When the obligation is only joint and the
obligors do not promise separately to fulfill their engagement they must be
all sued, if living, to compel the performance; or, if any be dead, the
survivors must all be sued. See Parties to actions.
27. A several obligation is one by which one individual, or if there be
more, several individuals bind themselves separately to perform the
engagement. In this case each obligor may be sued separately, and if one or
more be dead, their respective executors may be sued. See Parties to
actions.
28. The obligation is, purely personal when the obligor binds himself to
do a thing; as if I give my note for one thousand dollars, in that case my
person only is bound, for my property is liable for the debt only while it
belongs to me, and, if I lawfully transfer it to a third person, it is
discharged.
29. The obligation is personal in another sense, as when the obligor
binds himself to do a thing, and he provides his heirs and executors shall
not be bound; as, for example, when he promises to pay a certain sum yearly
during his life, and the payment is to cease at his death.
30. The obligation is real when real estate, and not the person, is
liable to the obligee for the performance. A familiar example will explain
this: when an estate owes an easement, as a right of way, it is the thing
and not the owner who owes the easement. Another instance occurs when a
person buys an estate which has been mortgaged, subject to the mortgage, he
is not liable for the debt, though his estate is. In these cases the owner
has an interest only because he is seised of the servient estate, or the
mortgaged premises, and he may discharge himself by abandoning or parting
with the property.
31. The obligation is both personal and real when the obligor has bound
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himself, and pledged his estate for the fulfillment of his obligation.
OBLIGATION OF CONTRACTS. By this expression, which is used in the
constitution of the United States, is meant a legal and not merely a moral
duty. 4 Wheat. 107. The obligation of contracts consists in the necessity
under which a man finds himself to, do, or to refrain from doing something.
This obligation consists generally both in foro legis and in foro
conscientice, though it does at times exist in one of these only. It is
certainly of the first, that in foro legis, which the framers of the
constitution spoke, when they prohibited the passage of any law impairing
the obligation of contract. 1 Harr. Lond. Rep. Lo. 161. See Impairing the
obligation of contracts.
OBLIGOR or DEBTOR. The person who has engaged to perform some obligation.
Louis. Code, art. 3522, No. 12. The word obligor, in its more technical
signification, is applied to designate one who makes a bond.
2. Obligors are joint and several. They are joint when they agree to
pay the obligation jointly, and then the survivors only are liable upon it
at law, but in equity the assets of a deceased joint obligor may be reached.
1. Bro. C. R. 29; 2 Ves. 101; Id. 371. They are several when one or more
bind themselves each of them separately to perform the obligation. In order
to become an obligor, the party must actually, either himself or by his
attorney, enter into the obligation, and execute it as his own. If a man
sign and seal a bond as his own, and deliver it, he will be bound by it,
although his name be not mentioned in the bond. 4 Stew. R. 479; 4 Hayw R.
239; 4 McCord, R. 203; 7 Cowen; R. 484; 2 Bail. R. 190; Brayt. 38; 2 H. & M.
398; 5 Mass. R. 538; 2 Dana, R. 463; 4 Munf. R. 380; 4 Dev. 272. When the
obligor signs between the penal part and the condition, still the latter
will be a part of the instrument. 2 Wend. Rep. 345; 3 H. & M. 144.
3. The execution of a bond by the obligor with a blank, and a verbal
authority to fill it up, and it is afterwards filled up, does not bind the
obligor, unless it is redelivered, or acknowledged or adopted. 1 Yerg. R. 69
149; 1 Hill, Rep. 267; 2 N. & M. 125; 2 Brock. R. 64; 1 Ham. R. 368; 2 Dev.
R. 369 6 Gill. & John. 250; but see contra, 17 Serg. & R. 438; and see 6
Serg. & Rawle, 308; Wright, R. 742.
OBREPTION, civil law. Surprise. Dig. 3,5,8,1. Vide Surprise.
OFFICE FOUND, Eng. law. When an inquisition is made to the king's use of
anything, by virtue of office of him who inquires, and the inquisition is
found, it is said to be office found.
OFFICE, INQUEST OF. An examination into a matter by an officer in virtue of
his office. Vide Inquisition.
OFFICER. He who is lawfully invested with an office.
2. Officers may be classed into, 1. Executive; as the president of the
United States of America, the several governors of the different states.
Their duties are pointed out in the national constitution, and the
constitutions of the several states, but they are required mainly to cause
the laws to be executed and obeyed.
3.-2. The legislative; such as members of congress; and of the
several state legislatures. These officers are confined in their duties by
the constitution, generally to make laws, though sometimes in cases of
impeachment, one of the houses of the legislature exercises judicial
functions, somewhat similar to those of a grand jury by presenting to the
other articles of impeachment; and the other house acts as a court in trying
such impeachments. The legislatures have, besides the power to inquire into
the conduct of their members, judge of their elections, and the like.
4.-3. Judicial officers; whose duties are to decide controversies
between individuals, and accusations made in the name of the public against
persons charged with a violation of the law.
5.-4. Ministerial officers, or those whose duty it is to execute the
mandates, lawfully issued, of their superiors.
6.-5. Military officers, who have commands in the army; and
7.-6. Naval officers, who are in command in the navy.
8. Officers are required to exercise the functions which belong to
their respective offices. The neglect to do so, may, in some cases, subject
the offender to an indictment; 1 Yeates, R. 519; and in others, he will be
liable to the party injured. 1 Yeates, R. 506.
9. Officers are also divided into public officers and those who are not
public. Some officers may bear both characters; for example, a clergyman is
a public officer when he acts in the performance of such a public duty as
the marriage of two individuals; 4 Conn. 209; and he is merely a private
person when he acts in his more ordinary calling of teaching his
congregation. See 4 Conn. 134; 1 Apple. 155.
OFFICIAL, civil and canon laws. In the ancient civil law, the person who was
the minister of, or attendant upon a magistrate, was called the official.
2. In the canon law, the person to whom the bishop generally commits
the charge of his spiritual jurisdiction, bears this name. Wood's Inst. 30,
505; Merl. Repert. h.t.
OFFICINA JUSTITIAE, Eng. law. The chancery is so called, because all writs
issue from it, under the great seal returnable into the courts of common
law.
OFFICIO, EX. By virtue of one's office. Vide Ex officio; 3 Bl. Com. 447.
OHIO. The name of one of the new states of the United States of America. It
was admitted into the Union by virtue of the act of congress, entitled "An
act to enable the people of the eastern division of the territory north-west
of the river Ohio, to form a constitution and state government, and for the
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admission of such state into the Union, on an equal footing with the
original states, and for other purposes," approved, May 30, 1802, 2 Story's
L. U. S. 869; by which it is enacted,
Sec. 1. That the inhabitants of the eastern division of the territory
north-west of the river Ohio, be, and they are hereby authorized to form for
themselves a constitution and state government, and to assume such name as
they shall deem proper; and the said state, when formed, shall be admitted
into the Union, upon the same footing with the original states, in all
respects whatever.
2.-Sec. 2. That the said state shall consist of all the territory
included within the following boundaries, to wit: Bounded on the east by the
Pennsylvania line, on the south by the Ohio river, to the month of the Great
Miami river, on the west by the line drawn due north from the mouth of the
Great Miami aforesaid, and on the north by an east and west line dawn
through the southerly extreme of lake Michigan, running east, after
intersecting the due north line aforesaid, from the mouth of the Great Miami
until it shall intersect lake Erie, or the territorial line, and thence,
with the same, through lake Erie, to the Pennsylvania line aforesaid:
Provided, That congress shall be at liberty, at any time hereafter, either
to attach all the territory lying east of the line to be drawn due north
from the mouth of the Miami aforesaid to the territorial line, and north of
an east and west line drawn through the southerly extreme of lake Michigan,
running east as aforesaid to lake Eric, to the aforesaid state, or dispose
of it otherwise, in conformity to the fifth Article of compact between the
original states and the people and states to be formed are the territory
north-west of the river Ohio.
3. By virtue of the authority given them by the act of congress, the
people of the eastern division of said territory met in convention at
Chillicothe; on Monday, the, first day of November, 1802, by which they did
ordain and establish the constitution and form of government, and did
mutually agree with each other to form themselves into a free and
independent state, by the name of The State of Ohio. This constitution has
been superseded by the present one, which was adopted in 1851. The powers of
the government are separated into three distinct branches, the legislative,
the executive, and the judicial.
4.-1st. By article 2, the legislative department is constituted as
follows:
5.-Sec. 1. The legislative power of this state shall be vested in a
general assembly, which shall consist of a senate, and house of
representatives.
6.-Sec. 2. Senators and representatives shall be elected biennially,
by the electors in the respective counties or districts, on the second
Tuesday of October; their term of office shall commence on the first, day of
January next thereafter, and continue two years.
7.-Sec. 3. Senators and representatives shall have resided in their
respective counties, or districts, one year next preceding their election,
unless they shall have been absent on the public business of the United
States, or of this state.
8.-Sec. 4. No person holding office under the authority of the United
States, or any lucrative office under the authority of this state, shall be
eligible to, or have a seat in, the general assembly; but this provision
shall not extend to township officers, justices of the peace, notaries
public, or officers of the militia.
9.-Sec. 5. No person hereafter convicted of an embezzlement of the
public funds, shall hold any office in this state; nor shall any person,
holding public money for disbursement, or otherwise, have a seat in the
general assembly, until, he shall have accounted for, and paid such money
into the treasury.
10.-Sec. 6. All regular sessions of the general assembly shall
commence on the first Monday of January, biennially. The first session,
under this constitution, shall commence on the first Monday of January, one
thousand eight hundred and fifty-two.
11.-Sec. 7. The style of the laws of this state, shall be, "Be it
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enacted by the General Assembly of the State of Ohio."
12.-Sec. 8. The apportionment of this state for members of the general
assembly, shall be made every ten years, after the year one thousand eight
hundred and fifty-one, in the following manner: The whole population of the
state, as ascertained by the federal census, or in such other mode as the
general assembly may direct, shall be divided by the number: one hundred,:
and the quotient shall be the ratio of representation in the house of
representatives for ten years next succeeding such apportionment.
13.-Sec. 9. Every county, having a population equal to one-half of
said ratio, shall be entitled to one representative; every county,
containing said ratio, and three-fourths over, shall be entitled to two
representatives; every county, containing three times said ratio, shall be
entitled to three representatives: and so on, requiring after the first two,
an entire ratio for each additional representative.
14.-Sec. 10. When any county shall have a fraction above the ratio, so
large, that being multiplied by five, the result will be equal to one or
more ratios, additional representatives shall be apportioned for such
ratios, among the several sessions of the decennial period, in the following
manner: If there be only one ratio, a representative shall be allotted to
the fifth session of the decennial period; if there are two ratios, a
representative shall be allotted to the fourth and third sessions,
respectively if three, to the third, second, and first sessions,
respectively; if four, to the fourth, third, second, and first sessions,
respectively.
15.-Sec. 11. Any county, forming with another county or counties, a
representative district, during one decennial period, if it have acquired
sufficient population at the next decennial period; shall be entitled to a
separate representation, if there shall be left, in the district from which
it shall have been separated, or population sufficient for a representative;
but no such change shall be made, except at the regular decennial period for
the apportionment of representatives.
16.-Sec. 12. If, in fixing any subsequent ratio, a county, previously
entitled to a separate representation, shall have less than the number
required by the new ratio for a representative, such county shall be
attached to the county adjoining it; having the least number of inhabitants;
and the representation of the district, so formed, shall be determined as
herein provided.
17.-Sec. 13. The ratio for a senator shall, forever hereafter, be
ascertained, by dividing the whole population of the state by the number
thirty-five.
18.-Sec. 14. The same rule shall be applied, in apportioning the
fractions of senatorial districts, and in annexing districts, which may
hereafter have less than three-fourths of a senatorial ratio, as are applied
to representative districts.
19.-Sec. 15. Any county forming part of a senatorial district, having
acquired a population equal to a full senatorial ratio, shall be made a
separate senatorial district, at any regular decennial apportionment, if a
full senatorial ratio shall be left in the district from which it shall be
taken.
20.-Sec. 16. For the first ten years, after the year one thousand
eight hundred and fifty-one, the apportionment of representatives shall be
as provided, in the schedule, and no change shall ever be made in the
principles of representation, as herein established, or in the senatorial
districts, except as above provided. All territory, belonging to a county at
the time of any apportionment, shall, as to the right of representation and
suffrage, remain an integral part thereof, during the decennial period.
21.-Sec. 17. The governor, auditor, and secretary of state, or any two
of them, shall, at least six months prior to the October election, in the
year one thousand eight hundred and sixty-one, and, at each decennial period
thereafter, ascertain and determine the ratio of representation, according
to the decennial census, the number of representatives and senators each
county or district shall be entitled to elect, and for what years, within
the next ensuing ten years, and the governor shall cause the same to be
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published, in such manner as shall be directed by law.
22.- Sec. 18. Every white male citizen of the United States, of the age
of twenty-one years, who shall have been a resident of the state one year
next preceding the election and of the county, township, or ward, in which
he resides, such time as may be provided by law, shall have the
qualifications of an elector, and be entitled to vote at all elections.
23.-Sec. 19. No person shall be elected or appointed to any office in
this state, unless he possess, the qualifications of an elector.
24.-3d. By article 3, the executive department is constituted as
follows:
25.-Sec. 1. The executive department shall consist of a governor,
lieutenant governor, secretary of state, auditor, treasurer, and an attorney
general, who shall be chosen by the electors of the state, on the second
Tuesday of October, and at the places of voting for members of the general
assembly.
26.-Sec. 2. The governor, lieutenant governor, Secretary of State,
treasurer, and attorney general, shall hold their offices for two years; and
the auditor for four years. Their terms of office shall commence on the
second Monday of January next after their election, and continue until their
successors are elected and qualified.
27.-Sec. 3. The returns of every election for the officers, named in
the foregoing section, shall be sealed up and transmitted to the seat of
government, by the returning officers, directed to the resident of the
senate, who, during the first week of the session, shall open and publish
them, and declare the result, in the presence of a majority of the members
of each house of the general assembly. The person having the highest number
of votes shall be declared duly elected; but if any two or more shall be
highest, and equal in votes, for the same office, one of them shall be
chosen, by the joint vote of both houses.
28.-Sec. 4. Should there be no session of the general assembly in
January next after an election for any of the officers aforesaid, the
returns of such election shall be made to the secretary of state, and
opened, and the result declared by the governor, in such manner as may be
provided by law.
29.-Sec. 5. The supreme executive power of this state shall be vested
in the governor.
30.-Sec. 6. He may require information, in writing, from the officers
in the executive department, upon any subject relating to the duties of
their respective office's; and shall see that the laws are faithfully
executed.
31.-Sec. 7. He shall communicate at every session, by message, to the
general assembly, the condition of the state, and recommend such measures as
he shall deem expedient.
32.-Sec. 8. He may, on extraordinary occasions, convene the general
assembly by proclamation, and shall state to both houses, when assembled,
the purpose for which they have been convened.
33.-Sec. 9. In case of disagreement between the two houses, in respect
to the time of adjournment, he shall have power to adjourn the general
assembly to such time as he may think proper, but not beyond the regular
meetings thereof.
34.-Sec. 10. He shall be commander-in-chief of the military and naval
forces of the state, except when they shall be called into the service of
the United States.
35.-Sec. 11. He shall have power, after conviction, to grant
reprieves, commutations, and pardons, for all crimes and offences, except
treason and cases of impeachment, upon such conditions as he may think
proper; subject, however, to such regulations, as to the manner of applying
for pardons, as may be prescribed by Upon conviction for treason, he may
suspend the execution of the sentence, and report the case to the general
assembly, at its next meeting, when the general assembly shall either
pardon, commute the sentence, direct its execution, or grant a further
reprieve. He shall communicate to the general assembly, at every regular
session, each case of reprieve, commutation, or pardon granted, stating the
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name and crime of the convict, the sentence, its date, and the date of the
commutation, pardon, or reprieve, with his reasons therefor.
36.-Sec. 12. There shall be a seal of the state, which shall be kept
by the governor and used by him officially; and shall be called "The Great
Seal of the State of Ohio."
37.-Sec. 13. All grants and commissions shall be issued in the name,
and by the authority, of the State of Ohio; sealed with the great seal
signed, by the governor, and countersigned by the secretary of state.
38.-Sec. 14. No member of congress, or other person holding office
under the authority of this state, or of the United States, shall execute
the office of governor, except as herein provided.
39.-Sec. 15. In case of the death, impeachment, resignation, removal,
or other disability of the governor, the powers and duties of the office,
for the residue of the term, or until he shall be acquitted, or the
disability removed, shall devolve upon the lieutenant governor.
40.-Sec. 16. The lieutenant governor shall be president of the senate,
but shall vote only when the, senate is equally divided; and in case of him
absence, or impeachment, or when he shall exercise the office of governor,
the senate shall choose a president pro tempore.
41.-Sec. 17. If the lieutenant governor, while executing the office of
governor, shall be impeached, displaced, resign or die, or otherwise become
incapable of performing the duties of the office, the president of the
senate shall act as governor, until the vacancy is filled, or the disability
removed; and if the president of the senate, for any of the above causes,
shall be rendered incapable of performing the duties pertaining to the
office of governor, the same shall devolve upon the speaker of the house of
representatives.
42.-Sec. 18. Should the office of auditor, treasurer, secretary, or
attorney general, become vacant for any of the causes specified in the
fifteenth section of this article, the governor shall fill the vacancy until
the disability is removed, or a successor elected and qualified. Every such
vacancy shall be filled by election, at the first general election that
occurs, more than thirty days after it shall have happened; and the person
chosen shall hold the office for the full term fixed in the second section
of this article.
43.-Sec. 19. The officers mentioned in this article, shall, at stated
times, receive for their services, a compensation to be established by law,
which shall neither be increased nor diminished during the period for which
they shall have been elected.
44.-Sec. 20. The officers of the executive department, and of the
public state institutions, shall, at least five days preceding each regular
session of the general assembly, severally report to the governor, who shall
transmit such reports, with his message, to the general assembly.
45.-4th. By article 4, the judicial department is constituted as
follows:
46.-Sec. 1. The judicial power of the state shall be vested, in a supreme
court, in district courts, courts of common pleas, courts of probate,
justices of the peace, and in such other courts, inferior to the supreme
court, in one or more counties, as the general assembly, may from time to
time establish.
47.-Sec. 2. The supreme court shall consist of five judges, a majority
of whom shall be necessary to form a quorum, or to pronounce a decision. It
shall have original jurisdiction in quo warranto, mandamus, habeas corpus,
and procedendo and such appellate jurisdiction as may be provided by law. It
shall hold at least one term in each year, at the seat of government, and
such other terms, at the seat of government, or elsewhere, as may be
provided by law. The judges of the supreme court shall be elected by the
electors of the state at large.
48.-Sec. 3. The state shall be divided into nine common pleas
districts, of which the county of Hamilton shall constitute one, of compact
territory, and bounded by county lines; and each of said districts,
consisting of three or more counties, shall be subdivided into three parts,
of compact territory, bounded by county lines, and as nearly equal, in
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population as practicable; in each of which, one judge of the court of
common pleas for said district, and residing therein, shall be elected by
the electors of said subdivision. Courts of common pleas shall be held, by
one or more of these judges, in every county in the district, as often as
may be provided by law; and more than one court, or sitting thereof, may be
held at the same time in each district.
49.-Sec. 4. The jurisdiction of the courts of common pleas, and of
the judges thereof, shall be fixed by law.
50.-Sec. 5. District courts shall be composed of the judges of the
court of common pleas of the respective districts, and one of the judges of
the supreme court, any three of whom shall be a quorum, and shall be held in
each county therein, at least once in each year; but, if it shall be found
inexpedient to hold such court annually, in each county, of any district,
the general assembly may, for such district, provide that said court shall
hold at least three annual sessions therein, in not less than three places:
Provided, that the general assembly may, by law, authorize the judges of
each district to fix the times of holding the courts therein.
51.-Sec. 6. The district court shall have like original jurisdiction
with the supreme court, and such appellate jurisdiction as may be provided
by law.
52.-Sec. 7. There shall be established in each county, a probate
court, which shall be a court of record, open at all times, and holden by
one judge, elected by the voters of the county, who shall hold his office
for the term of three years, and shall receive such compensation, payable
out of the county treasury, or by fees, or both; as shall be provided by
law.
53.-Sec. 8. The probate court shall have jurisdiction in probate and
testamentary matters, the appointment of administrators and guardians, the
settlement of the accounts of executors, administrators and guardians, and
such jurisdiction in habeas corpus, the issuing of marriage licenses, and
for the sale of land by executors, administrators and guardians, and such
other jurisdiction, in any county, or counties, as may be provided by law.
54.-Sec. 9. A competent number of justices of the peace shall be
elected, by the electors, in each township in the several counties. Their
term, of office shall be three years, and their powers and duties shall be
regulated by law.
55.-Sec. 10. All judges, other than those provided for in this
constitution, shall be elected by the electors of the judicial district for
which they may be created, but not for a longer term of office than five
years.
56.-Sec. 11. The judges of the supreme court shall, immediately after
the first election under this constitution, be classified by lot, so that
one shall hold for the term of one year, one for two years, one for three
years, one for four years, and one for five years; and, at all subsequent
elections, the term of each of said judges shall be for five years.
57.-Sec. 12. The judges of the courts of common pleas shall, while in
office, reside in the district for which they, are elected; and their term
of office shall be for five years.
58.-Sec. 13. In case the office of any judge shall become vacant
before the expiration of the regular term for which he was elected, the
vacancy shall be filled by appointment by the governor, until a successor is
elected and qualified; and such successor shall be elected for the unexpired
term, at the first annual election that occurs more than thirty, days after
the vacancy shall have happened.
59.-Sec. 14. The judges of the supreme court, and of the court of
common pleas shall, at stated times, receive for their services, such
compensation as may be provided by law, which shall not be diminished or
increased, during their term of office; but they shall receive no fees or
perquisites, nor hold any other office of profit or trust, under the
authority of this state, or the United States. All votes for either of them,
for any elective office, except a judicial office, under the authority of
this state, given by the general assembly, or the people, shall be void.
60.-Sec. 15. The general assembly may increase or diminish the number
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of the judges of the supreme court, the number of the districts of the court
of common pleas, the number of judges in any district; change the districts,
or the subdivisions thereof, or establish other courts, whenever two-thirds
of the members elected to each house shall concur therein; but no such
change, addition, or diminution, shall vacate the office of any judge.
61.-Sec. 16. There shall be elected in each county by the electors
thereof, one clerk of the court of common pleas, who shall hold his office
for the term of three years, and until his successor shall be elected and
qualified. He shall, by virtue of his office, be clerk of all other courts
of record held therein; but the general assembly may provide by law, for the
election of a clerk, with a like term of office, for each or any other of
the courts of record, and may authorize the judge of the probate court to
perform the duties of clerk for his court, under such regulations as may be
directed by law. Clerks of courts shall be removable for such cause, and in
such manner, as shall be prescribed by law.
62.-Sec. 17. Judges may be removed from office, by concurrent
resolution of both houses of the general assembly, if two-thirds of the
members elected to each house concur therein; but no such removal shall be
made, except upon complaint, the substance of which shall be entered on the
journal, nor until the party charged shall have had notice thereof, and an
opportunity to be heard.
63.-Sec. 18. The several judges of the supreme court, of the common
pleas, and of such other courts as may be created, shall, respectively, have
and exercise such power and jurisdiction, at chambers, or otherwise as may
be directed by law.
64.-Sec. 19. The general assembly may establish courts of
conciliation, and prescribe their powers and duties; but such courts shall
not render final judgment in any case, except upon submission, by the
parties of the matter in dispute, and their agreement to abide such
judgment.
65.-Sec. 20. The style of all process shall be, "The State of Ohio;"
all prosecutions shall be carried on in the name and by the authority of the
state of Ohio; and all indictments shall conclude, "against the peace and
dignity of the state of Ohio."
OLD AGE. This needs no definition. Sometimes old age is the cause of loss of
memory and of the powers of the mind, when the party may be found non compos
mentis. See Aged witness; Senility.
OLD NATURA BREVIUM. The title of an old English book, (usually cited Vet. N.
B.) so called to distinguish it from the F. N. B. It contains the writs most
in use in the reign of Edward III, together with a short comment on the
application and properties of each of them,
OLD TENURES. The title of a small tract, which, as its title denotes,
contains an account of the various tenures by which land was holden in the
reign of Edward III. This tract was published in 1719, with notes and
additions, with the eleventh edition of the First Institutes, and reprinted
in 8 vols. in 1764, by Serjeant Hawkins, in a Selection of Coke's Law
Tracts.
OLERON LAWS. The name of a maritime code. Vide Laws of Oleron.
OLIGARCHY. This name is given to designate the power which a few citizens of
a state have usurped, which ought by the constitution to reside in the
people. Among the Romans the government degenerated several times into an
oligarchy; for example, under the decemvirs, when they became the only
magistrates in the commonwealth.
OLOGRAPH. When applied to wills or testaments, this term signifies that they
are wholly written by the testator himself. Vide Civil, Code of Louisiana,
art. 1581: Code Civil, 970; 6 Toull. n. 357; 1 Stuart's (L. C.) R. 327; 2
Bouv. Inst. n. 2139; and see Testament, Olographic; Will, Olographic.
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OMISSION. An omission is the neglect to perform what the law requires.
2. When a public law enjoins on certain officers duties to be performed
by them for the public, and they omit to perform them, they may be indicted:
for example, supervisors of the highways are required to repair the public
roads; the neglect to do so will render them liable to be indicted.
3. When a nuisance arises in consequence of an omission, it cannot be
abated if it be a private nuisance without giving notice, when such notice
can be given. Vide Branches; Commission; Nuisance; Trees.
OMNIA PERFORMAVIT. A good plea in bar, where all the covenants are in the
affirmative. 1 Greenl. R. 189.
OMNIUM, mercant. law. A term used to express the aggregate value of the
different stocks in which a loan is usually funded. 2 Esp. Rep. 361; 7 T. R.
630.
ONERARI NON. The name of a plea by which the defendant says that he ought
not to be charged. lt is used in an action of debt. 1 Saund. 290, n. a.
ONERIS FERENDI, civil law. The name of a servitude by which the wall or
pillar of one house is bound to sustain the weight of the buildings of the
neighbor.
2. The owner of the servient building is bound to repair and keep it
sufficiently strong for the weight it has to bear. Dig. 8, 2, 23; 2 Bouv.
Inst. n. 1627.
ONEROUS CAUSE, civil law., A valuable consideration.
ONEROUS CONTRACT, civil law. One made for a consideration given or promised,
however small. Civ. Code of Lo. art. 1767.
ONEROUS GIFT, civil law. The gift of a thing subject to certain charges
which the giver has imposed on the donee. Poth. h.t.
ONUS PROBANDI, evidence. The burden of the proof.
2. It is a general rule, that the party who alleges the affirmative of
any proposition shall prove it. It is also a general rule that the onus
probandi lies. upon the party who seeks to support his case by a particular
fact of which he is supposed to be cognizant; for example, when to a plea of
infancy, the plaintiff replies a promise after the defendant had attained
his age, it is sufficient for the plaintiff to prove the promise and it lies
on the defendant to show that he was not of age at the time. 1 Term. Rep.
648. But where the negative, involves a criminal omission by the party, and
consequently where the law, by virtue of the general principle, presumes his
innocence, the affirmative of the fact is also presumed. Vide 11 Johns. R.
513; 19 Johns. R. 345; 9 M. R. 48; 3 N. S. 576.
3. In general, wherever the law presumes the affirmative, it lies on
the party who denies the fact, to prove the negative; as, when the law
raises a presumption as to the continuance of life; the legitimacy of
children born in wedlock; or the satisfaction of a debt. Vide. generally, 1
Phil. Ev. 156: 1 Stark. Ev. 376; Roscoe's Civ. Ev. 51 Roscoe's Cr. Ev. 55;
B. P. 298; 2 Gall. 485; 1 McCord, 573; 12 Vin. Ab. 201; 4 Bouv. Inst. n.
4411.
4. The party on whom the onus probandi lies is entitled to begin,
notwithstanding the technical form of the proceedings. 1 Stark. Ev. 584; 3
Bouv. last. n. 3043.
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ORDER, contracts. An indorsement or short writing put upon the back of a
negotiable bill or note, for the purpose of passing the title to it, and
making it payable to another person.
2. When a bill or note is payable to order, which is generally
expressed by this formula, "to A B, or order,"or" to the order of A B," in
this case the payee, A B may either receive the money secured by such
instrument, or by his order, which is generally done by a simple
indorsement, (q.v.) pass the right to receive it to another. But a bill or
note wanting these words, although not negotiable, does not lose the general
qualities of such instruments. 6 T. R. 123; 6 Taunt. 328; Russ. & Ry. C. C.
300; 3 Caines, 137; 9 John. 217. Vide Bill of Exchange; Indorsement.
3. An informal bill of exchange or a paper which requires one person to
pay or deliver to another goods on account of the maker to a third party, is
called an order.
ORDER, French law. The act by which the rank of preferences of claims among
creditors who have liens over the price which arises out of the sale of an
immovable subject, is ascertained, is called order. Dalloz, Dict. h.t.
ORDER OF FILIATION. The name of a judgment tendered by two justices, having
jurisdiction in such case, in which a man therein named is adjudged to be
the putative father of a bastard child; and it is farther adjudged that he
pay a certain sum for its support.
2. The order must bear upon its face, 1st. That it was made upon the
complaint of the township, parish, or other place, where the child was born
and is chargeable. 2d. That it was made by justices of the peace having
jurisdiction. Salk. 122, pl. 6; 2 Ld. Raym. 1197. 3d. The birth place of the
child; 4th. The examination of the putative father and of the mother; but,
it is said, the presence of the putative father is not requisite, if he has
been summoned. Cald. It. 308. 5th. The judgment that the defendant is the
putative father of the child. Sid. 363; Stile, 154; Dalt. 52; Dougl. 662.
6th. That he shall maintain, the child as long as he shall be chargeable to
the township, parish, or other place, which must be named. Salk. 121, pl. 2;
Comb. 232. But the order may be that the father shall pay a certain sum
weekly as long as the child is chargeable to the public. Stile, 134; Vent.
210. 7th. It must be dated, signed, and, sealed by the justices. Such order
cannot be vacated by two other justices. 15 John. R. 208; see 8 Cowen, R.
623; 4 Cowen, R. 253; 12 John. R. 195; 2 Blackf. R. 42.
ORDER NISI. A conditional order which is to be confirmed unless something be
done, which has been required, by a time specified. Eden. Inj. 122.
ORDERS. Rules made by a court or other competent jurisdiction. The formula
is generally in those words: It is ordered, &c.
2. Orders also signify the instructions given by the owner to the
captain or commander of a ship which he is to follow in the course of the
voyage.
ORDINATION, civil and eccl. law. The act of conferring the orders of the
church upon an individual. Nov. 137.
ORE TENUS. Verbally. orally. Formerly the pleadings of the parties were ore
tenus, and the practice is said to have been retained till the reign of
Edward the Third, 3 Reeves, 95; Steph. Pl. 29; and vide Bract. 372, b.
2. In chancery practice, a defendant may demur at the bar ore tentus; 3
P. Wms. 370; if he has not sustained the demurrer on the record. 1 Swanst.
R. 288; Mitf. Pl. 176; 6 Ves. 779; 8 Ves. 405; 17 Ves. 215, 216,
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OTHER WRONGS, pleading, evidence. In actions of trespass, the declaration
concludes by charging generally, that the defendant did other wrongs to the
plaintiff to his great damage. When the injury is a continuation or
consequence of the trespass declared on, the plaintiff may give evidence of
such injury under this averment of other wrongs, Rep., Temp. Holt 699; 2
Salk. 642; 6 Mod. 127; Bull. N. P. 89; 2 Stark. N. P. C. 818.
OUNCE. The name of a weight. An ounce avoirdupois weight is the sixteenth
part of a pound; an ounce troy weight is the twelfth part of a pound. Vide
Weights.
OUSTER, torts. An ouster is the actual turning out, or keeping excluded, the
party entitled to possession of any real property corporeal.
2. An ouster can properly be only from real property corporeal, and
cannot be committed of anything movable; 1 Car. & P. 123; S. C. 11 Eng. Com.
Law R. 339; 2 Bouv. 1 Inst. n. 2348; 1 Chit. Pr. 148, note r; nor is a mere
temporary trespass considered as an ouster. Any continuing act of exclusion
from the enjoyment, constitutes an ouster, even by one tenant in common of
his co-tenant. Co. Litt. 199 b, 200 a. Vide 3 Bl; Com. 167; Arch. Civ. Pl.
6, 14; 1 Chit. Pr. 374, where the remedies for an ouster are pointed out.
Vide Judgment of Respondent Ouster.
OUSTER LE MAIN. In law-French, this signifies, to take out of the hand. In
the old English law it signified a livery of lands out of the hands of the
lord, after the tenant came of age. If the lord refused to deliver such
lands, the tenant was entitled to a writ to recover the same from the lord;
this recovery out of the hands of the lord was called ouster le main.
OVERPLUS. What is left beyond a certain amount; the residue, the remainder
of a thing. The same as Surplus. (q.v.)
2. The overplus may be certain or uncertain. It is certain, for
example, when an estate is worth three thousand dollars, and the owner
asserts it to be so in his will, and devises of the proceeds one thousand
dollars to A, one thousand dollars to B, and the overplus to C, and in
consequence of the deterioration of the estate, or from some other cause, it
sells for less than three thousand dollars, each of the legatees A, B and C
shall take one third: the overplus is uncertain where, for example, a
testator does not know the value of his estate, and gives various legacies
and the overplus to another legatee; the latter will be entitled only to
what may be left. 18 Ves. 466. See Residue; Surplus.
TO OVERRULE. To annul, to make void. This word is frequently used to signify
that a case has been decided directly opposite to a former case; when this
takes place, the first decided case is said to be overruled as a precedent,
and cannot any longer be considered as of binding authority.
2. Mr. Greenleaf has made a very valuable collection of overruled
cases, of great service to the practitioner.
3. The term overrule also signifies that a majority of the judges have
decided against the opinion of the minority, in which case the latter are
said to be overruled.
OVERSEERS OF THE POOR. Persons appointed or elected to take care of the poor
with moneys furnished to them by the public authority.
2. The duties of these officers are regulated by local statutes. In
general the overseers are bound to perform those duties, and the neglect of
them will subject them to an indictment. Vide 1 Bl. Com. 360; 16 Vin. Ab.
150; 1 Mass. 459; 3 Mass. 436; 1 Penning. R. 6, 136; Com. Dig. Justices of
the Peace, B. 63, 64, 65.
OVERSMAN, Scotch law. A person commonly named in a submission, to whom power
is given to determine in case the arbiters cannot agree in the sentence;
sometimes the nomination of the oversman is left to the arbiters. In either
case the oversman has no power to decide, unless the arbiters differ in
opinion. Ersk. Pr. L. Scot. 4, 3, 16. The office of an oversman very much
resembles that of an umpire.
OVERT. Open. An overt act in treason is proof of the intention of the
traitor, because it opens his designs; without an overt act treason cannot
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be committed. 2 Chit: Cr. Law, 40. An overt act then, is one which manifests
the intention of the traitor, to commit treason. Archb. Cr. Pl. 379 4 Bl.
Com. 79.
2. The mere contemplation or intention to commit a crime; although a
sin in the sight of heaven, is not an act amenable to human laws. The were
speculative wantonness of a licentious imagination, however dangerous, or
even sanguinary in its object, can in no case amount to a crime. But the
moment that any overt act is manifest, the offender becomes amenable to the
laws. Vide Attempt; Conspiracy, and Cro. Car. 577.
OWELTY. The difference which is paid or secured by one coparcener to
another, for the purpose of equalizing a partition. Hugh. Ab. Partition and
Partner, Sec. 2, n. 8; Litt. s. 251; Co. Litt. 169 a; 1 Watts, R. 265; 1
Whart. 292; 3 Penna, 11 5; Cruise, Dig. tit. 19, Sec. 32; Co. Litt. 10 a; 1
Vern. 133; Plow. 134; 16 Vin. Ab. 223, pl. 3; Bro. Partition; Sec. 5. OWING.
Something unpaid. A debt, for example, is owing while it is unpaid, and
whether it be due or not.
2. In affidavits to hold to bail it is usual to state that the debt on
which the action is founded is due, owing and unpaid. 1 Penn. Law Jo. 210.
OWLER, Eng. law. One guilty of the offence of owling.
OWLING, Eng. law. The offence of transporting wool or sheep out of the
kingdom.
2. The name is said to owe its origin to the fact that this offence was
carried on in the night, when the owl was abroad.
OWNER, property. The owner is he who has dominion of a thing real or
personal, corporeal or incorporeal, which he has a right to enjoy and to do
with as he pleases, even to spoil or destroy it, as far as the law permits,
unless he be prevented by some agreement or covenant which restrains his
right.
2. The right of the owner is more extended than that of him who has
only the use of the thing. The owner of an estate may, therefore change the
face of it; he may cut the wood, demolish the buildings, build new ones, and
dig wherever he may deem proper, for minerals, stone, plaster, and similar
things. He may commit what would be considered waste if done by another.
3. The owner continues to have the same right although he perform no
acts of ownership, or be disabled from performing them, and although another
perform such acts, without the knowledge or against the will of the owner.
But the owner may lose his right in a thing, if he permit it to remain in
the possession of a third person, for sufficient time to enable the latter
to acquire a title to it by prescription, or lapse of time. See Civil Code
of Louis. B. 2, t. 2, c. 1; Encyclopedie de M. D'Alembert, Proprietaire.
4. When there are several joint owners of a thing, as for example, of a
ship, the majority of them have the right to make contracts in respect of
such thing, in the usual course of business or repair, and the like, and the
minority will be bound by such contracts. Holt, 586; 1 Bell's Com. 519, 5th
ed. See 5 Whart. R. 366.
OWNERSHIP, title to property. The right by which a thing belongs to some one
in particular, to the exclusion of all other persons. Louis. Code, art. 480.
OXGANG OF LAND, old Eng. law. An uncertain quantity of land, but, according
to some opinions, it contains fifteen acres. Co. Litt. 69 a.
OYER, pleading. Oyer is a French word signifying to hear; in pleading it is
a prayer or petition to the court, that the party may hear read to him the
deed, &c., stated in the pleadings of the opposite party, and which deed is
by intendment of law in court, when it is pleaded with a profert.
2. The origin of this form of pleading, we are told, is that the
generality of defendants, in ancient times, were themselves incapable of
reading. 3 Bl. Com. 299.
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3. Oyer is, in some cases demandable of right, and in others it is not.
It may be demanded of any speciality or other written instrument, as bonds
of all sorts, deeds poll, indentures, letters testamentary, and of
administration, and the like, of which a profert in curiam is necessarily
made by the adverse party. But if the party be not bound to plead the
specialty or instrument with a profert, and he pleads it with one, it is but
surplusage, and the court will not compel him to give oyer of it. 1 Salk.
497. Oyer is not now demandable of the writ, and if it be demanded, the
plaintiff may proceed as if no such demand were made. Dougl. 227; 3 B. & P.
398; 1 B.& P. 646, n. b. Nor is oyer demandable of a record, yet if a
judgment or other record be pleaded in its own court, the party pleading it
must give a notice in writing of the term and number roll whereon such
judgment or matter of record is entered or filed in default of which the
plea is not to be received. Tidd's Pr. 529.
4. To deny over when it ought to be granted is error; and in such case
the party making the claim, should move the court to have it entered on
record, which is in the nature of a plea, and the plaintiff may counterplead
the right of oyer, or strike out the rest of the pleading, following the
oyer, and demur; 1 Saund. 9 b, n. 1; Bac. Abr. Pleas, 1; upon which the
judgment of the court is either that the defendant have oyer, or that he
answer without it. Id. ibid.; 2 Lev. 142; 6 Mod. 28. On the latter judgment,
the defendant may bring a writ of error, for to deny oyer when it ought to
be granted, is error, but not e converso. Id. ibid.; 1 Blackf. R. 126. See,
in general, 1 Saund. 9, n. 1; 289, in. 2; 2. Saund. 9, n. 12, 13; 46, n. 7;
366, n. 1; 405, n. 1; 410, n. 2; Tidd's Pr. 8 ed. 635 to 638, and index,
tit. Oyer; 1 Chit. Pl. 369 to 375; Lawes on Civ. Pl. 96 to 101; 16 Vin. Ab.
157; Bac. Abr. Pleas, &c., I 12, n. 2; Arch. Civ. Pl. 185; 1 Sell. Pr. 260;
Doct. Pl, 344; Com. Dig. Pleader, P Abatement, I 22; 1 Blackf. R. 241, 3
Bouv. Inst. n. 2890.
OYER AND TERMINER. The name of a court authorized to hear and determine all
treasons, felonies and misdemeanors; and, generally, invested with other
power in relation to the punishment of offenders.
OYEZ, practice. Hear; do you hear. In order to attract attention immediately
before he makes proclamation, the cryer of the court cries Oyez, Oyez, which
is generally corruptly pronounced O yes.
P.
PACE. A measure of length containing two feet and a half; the geometrical
pace is five feet long. The common pace is the length of a step; the
geometrical is the length of two steps, or the whole space passed over by
the same foot from one step to another.
PACIFICATION. The act of making peace between two countries which have teen
at war; the restoration of public tranquillity.
TO PACK. To deceive by false appearance; to counterfeit; to delude; as
packing a jury. (q.v.) Bac. Ab. Juries, M; 12 Conn. R. 262.
PACT, civil law. An agreement made by two or more persons on the same
subject in order to form some engagement, or to dissolve or modify, one
already made, conventio est duorum in idem placitum consensus de re
solvenda, id. est facienda vel praestanda. Dig. 2, 14; Clef des Lois Rom.
h.t.; Ayl. Pand. 558; Merl, Rep. Pacte, h.t.
PACTIONS, International law. When contracts between nations are to be
performed by a single act, and their execution is at an end at once, they
are not called treaties, but agreements, conventions or pactions. 1 Bouv.
Inst. n. 100.
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PACTUM CONSTITUTAE PECUNIAE, civil law. An agreement by which a person
appointed to his creditor, a certain day, or a certain time, at which he
promised to pay; or it maybe defined, simply. an agreement by which a person
promises a creditor to pay him.
2. When a person by this pact promises his own creditor to pay him,
there arises a new obligation which does not destroy the former by which he
was already bound, but which is accessory to it; and by this multiplicity of
obligations the right of the creditor is strengthened. Poth. Ob. Pt. 2, c.
6, s. 9.
3. There is a striking conformity between the pactum constitutae
pecuniae, as above defined, and our indebitatus assumpsit. The pactum
constitutae pecuniae was a promise to pay a subsisting debt whether natural
or civil; made in such a manner as not to extinguish the preceding debt, and
introduced by the praetor to obviate some formal difficulties. The action of
indebitatus assumpsit was brought upon a promise for the payment of a debt,
it was not subject to the wager of law and other technical difficulties of
the regular action of debt; but by such promise, the right to the action of
debt was not extinguished nor varied. 4 Rep. 91 to 95; see 1 H. Bl. 550 to
655; Doug. 6, 7; 3 Wood. 168, 169, n. c; 1 Vin. Abr. 270; Bro. Abr. Action
sur le case, pl. 7, 69, 72; Fitzh. N. B. 94, A, n. a, 145 G; 1 New Rep. 295;
Bl. Rep. 850; 1 Chit. Pl. 89; Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 4, u.
388, 396.
PACTUM DE NON PETANDO, civil law. An agreement made, between a creditor and
his debtor that the former will not demand, from the latter the debt due. By
this agreement the debtor is freed from his obligation. This is not unlike
the covenant not to sue, (q.v.) of the common law. Wolff, Dr. de la Nat.
Sec. 755.
PACTUM DE QUOTA LITIS. An agreement by which a creditor of a sum difficult
to recover, promises a portion, for example, one-third, to the person who
will undertake to recover it. In general, attorneys will abstain from,
making such a contract, yet it is not unlawful.
PAGODA, comm. law. A denomination of money in Bengal. In the computation of
ad valorem duties, it is valued at one dollar and ninety-four cent's. Act of
March 2, 1799, s. 61, 1 Story's L. U. S. 626. Vide Foreign Coins.
PAIS, or PAYS. A French word signifying country. In law, matter in pais is
matter of fact in opposition to matter of record: a trial per pais, is a
trial by the country, that is, by a jury.
PALFRIDUS, A palfrey; a horse to travel on. 1 Tho. Co. Litt. 471; F. N. B.
93.
PANDECTS, civil law. The name of an abridgment or compilation of the civil
law, made by order of the emperor Justinian, and to which he gave the force
of law. It is also known by the name of Digest. (q.v.)
PANEL, practice. A schedule or roll containing the names of jurors, summoned
by virtue of a writ of venire facias, and annexed to the writ. It is
returned into the court whence the venire issued. Co. Litt. 158, b.
PANNEL, Scotch law. A person, accused of a crime; one indicted.
PAPER-BOOK, practice. A book or paper containing an abstract of all the
facts and pleadings necessary, to the full understanding of a case.
2. Courts of error and other courts, on arguments, require that the
judges shall each be furnished with such a paper-book in the court of king's
bench, in England, the transcript containing the whole of the proceedings,
filed or delivered between the parties, when the issue joined, in an issue
in fact, is called the paper-book. Steph. on Pl. 95; 3 Bl. Com. 317; 3 Chit.
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Pr. 521; 2 Str. 1131, 1266; 1 Chit. R. 277 2 Wils, R. 243; Tidd, Px. 727.
PAPER DAYS, Eng. law. Days on which special arguments are to take place.
Tuesdays and Fridays in term time are paper days appointed by the court.
Lee's Dict. of Pr. h.t.; Arch. Pr. 101.
PAPER MONEY. By paper money is understood the engagements to pay money which
are issued by governments and banks, and which pass as money. Pardes. Dr.
Com. n. 9. Bank notes are generally considered as cash, and win answer, all
the purposes of currency; but paper money is not a legal tender if objected
to. See Bank note, Specie, Tender.
PAR, comm. law. Equal. It is used to denote a state of equality or equal
value. Bills of exchange, stocks, and the like, are at par when they sell
for their nominal value; above par, or below par, when they sell for more or
less.
PARAGE. Equality of name or blood, but more especially of land in the
partition of an inheritance among co-heirs, hence comes disparage and
disparagement. Co. Litt. 166.
PARAGIUM. A Latin term which signifies equality. It is derived from the
adjective par, equal, and made a substantive by the addition of agium; 1
Tho. Co. Litt. 681.
2. In the ecclesiastical law, by paragium is understood the portion
which a woman gets on her marriage. Ayl. Par. 336.
PARAMOUNT. That which is superior.
2. It is usually applied to the highest lord of the fee, of lands,
tenements, or hereditaments. F. N. B. 135. Where A lets lands to B, and he
underlets them to C, in this case A is the paramount, and B is the mesne
landlord. Vide Mesne, and 2 Bl. Com. 91; 1 Tho. Co. Litt. 484, n. 79; Id.
485, n. 81.
PARAPHERNALIA. The name given to all such things as a woman has a right to
retain as her own property, after her husband's death; they consist
generally of her clothing, jewels, and ornaments suitable to her condition,
which she used personally during his life.
2. These, when not extravagant, she has a right to retain even against
creditors; and, although in his lifetime the husband might have given them
away, he cannot bequeath such ornaments and jewels by his will. 2 Bl. Com.
430; 2 Supp. to Ves. jr. 376; 5 Com. Dig. 230; 2 Com. Dig. 212; 11 Vin. Ab.
176; 4 Bouv. Inst. n. 8996-7.
PARATITLA, civil law. An abbreviated explanation of some titles or books of
the Code or Digest.
PARATUM HABEO. A return made by the sheriff to a capias ad respondendum,
which signified that he had the defendant ready to bring into court. This
was a fiction where the defendant was at large. Afterwards be was required
by statute to take bail from the defendant, and he returned cepi corpus and
bail bond. But still he might be ruled to bring in the body. 7 Penn. St.
Rep. 535.
PARAVAIL. Tenant paravail is the lowest tenant of the fee, or he who is the
immediate tenant to one who holds of another. He is called tenant paravail,
because it is presumed he has the avails or profits of the land. F. N. B.
135; 2 Inst, 296.
PARCEL, estates. Apart of the estate. 1 Com. Dig. Abatement, H 511 p. 133; 5
Com. Dig. Grant, E 10, p. 545. To parcel is to divide an estate. Bac, Ab.
Conditions, 0.
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PARCENARY. The state or condition of holding title to lands jointly by
parceners, before the common inheritance has been divided. Litt. sec. 56.
Vide 2 Bl. Com. 187; Coparcenary; Estate In coparcenary.
PARCENERS, Eng. law. The daughters of a man or woman seised of lands and
tenements in fee simple or fee tail, on whom, after the death of such
ancestor, such lands and tenements descend, and they enter. Litt. s. 243;
Co. Litt. 164 2 Bouv. Inst. n. 1871-2. Vide Coparceners.
PARCO FRACITO, Eng. law. The name of a writ against one who violently
breaks a pound, and takes from thence beasts which, for some trespass done,
or some other just cause, were lawfully impounded.
PARLIAMENT. This word, derived from the French parlement, in the English
law, is used to designate the legislative branch of the government of Great
Britain, composed of the house of lords, and the house of commons.
2. It is an error to regard the king of Great Britain as forming a part
of parliament. The connexion between the king and the lords spiritual, the
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lords temporal, and the commons, which, when assembled in parliament, form
the, three states of the realm, is the same as that which subsists between
the king and those states -- the people at large -- out of parliament;
Colton's Records, 710; the king not being, in either case, a member, branch,
or co-estate, but standing solely in the relation of sovereign or head.
Rot. Par. vol. iii,. 623 a.; 2 Mann. & Gr. 457 n.
PAROL. More properly parole. A French word, which means literally, word or
speech. It is used to distinguish contracts which are made verbally or in
writing not under seal, which are called, parol. contracts, from those which
are under seal which bear the name of deeds or specialties (q.v.) 1 Chit.
Contr. 1; 7 Term. R. 3 0 351, n.; 3 Johns. Cas. 60; 1 Chit. Pl. 88. It is
proper to remark that when a contract is made under seal, and afterwards it
is modified verbally, it becomes wholly a parol contract. 2 Watts, 451; 9
Pick. 298; 13 Wend. 71.
2. Pleadings are frequently denominated the parol. In some instances
the term parol is used to denote the entire pleadings in a cause as when in
an action brought against an infant heir, on an obligation of his ancestors,
he prays that the parol may demur, i. e., the pleadings may be stayed, till
he shall attain full age. 3 Bl. Com. 300; 4 East, 485 1 Hoffm. R. 178. See a
form of a plea in abatement, praying that the parol may demur, in 1 Wentw.
Pl. 43; and 2 Chit. Pl. 520. But a devisee cannot pray the parol to demur. 4
East, 485.
3. Parol evidence is evidence verbally delivered by a witness. As to
the cases when such evidence will be received or rejected, vide Stark, Ev.
pt. 4, p. 995 to 1055; 1 Phil. Ev. 466, c. 10, s. 1; Sugd. Vend. 97.
PAROL LEASES. An agreement made verbally, not in writing, between the
parties, by which one of them leases to the other a certain estate.
2. By the English statute of frauds of 29 Car. III, c. 3, s. 1, 2, and
3, it is declared, that "all leases, estates, or terms of years, or any
uncertain interest in lands, created by livery only, or by parol, And not
put in writing, and signed by the party, should have the force and effect of
leases or estates at will only, except leases not exceeding the term of
three years, whereupon the rent reserved during the term shall amount to two
third parts of the full improved value of the thing demised." "And that no
lease or estate, either of freehold or term of years, should be assigned,
granted, or surrendered, unless in writing." The principles of this statute
have been adopted with some modifications, in nearly all the states of the
Union. 4 Kent, Com. 95; 1 Hill. Ab. 130
PAROLE, international law. The agreement of persons who have been taken by
an enemy that they will not again take up arms against those who captured
them, either for a limited time, or during the continuance of the war.
Vattel, liv. 3, c. 8, Sec. 151.
PARRICIDE, civil law. One who murders his father; it is applied, by
extension, to one who murders his mother, his brother, his sister, or his
children. The crime committed by such person is also called parricide. Merl.
Rep. mot Parricide; Dig. 48, 9, 1, 1. 3, 1. 4.
2. This offence is defined almost in the same words in the penal code
of China. Penal Laws of China, B. 1, s. 2, Sec. 4.
3. The criminal was punished by being scourged, and afterwards sewed in
a sort of sack, with a dog, a cock, a viper, and an ape, and then thrown
into the sea, or into a river; or if there were no water, he was thrown in
this manner to wild beasts. Dig. 48, 9, 9; C. 9, 17, 1, 1. 4, 18, 6; Bro.
Civ; Law, 423; Wood's Civ. Law, B. 3, c. 10, s. 9.
4. By the laws of France parricide is the crime of him who murders his
father or mother, whether they, be the legitimate, natural or adopted
parents of the individual, or the murder of any other legitimate ascendant.
Code Penal, art. 297. This crime is there punished by the criminal's being
taken to the place of execution without any other garment than his shirt,
barefooted, and with his head covered with a black veil. He is then exposed
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on the scaffold while an officer of the court reads his sentence to the
spectators; his right hand is then cut off, and he is immediately put to
death. Id. art. 13.
5. The common law does not define this crime, and makes no difference
between its punishment, and the punishment of murder. 1 Hale's P. C. 380;
Prin. Penal Law, c. 18, Sec. 8, p. 243; Dalloz, Dict. mot Homicide.
PARSON, eccl. law. One who has full possession of all the rights of a
parochial church.
2. He is so called because by his person the church, which is an
invisible body, is represented: in England he is himself a body corporate it
order to protect and defend the church (which he personates) by a the
minority, if required to bring Story on Partn. Sec. 489. 1 Bouv. Inst. n.
1217. 398; 5 Com. Dig. 346.
PARTICEPS FRAUDIS. fraud. Both parties be in pari delicto is not allowed to
allege his own turpitude in such cases, when defendant at law, or prevented
from alleging it, when plaintiff in equity, whenever the refusal to execute
the contract at law, or the refusal to relieve against it in equity, would
give effect to the original purpose, and encourage the parties engaged, in
such transactions. 4 Rand. R. 372; 1 Black. R. 363; 2 Freem. 101.
PARTICULAR AVERAGE. This term, particular average, has been condemned as not
being exact. See Average. It denotes, in general, every kind of expense or
damage, short of total loss which regards a particular concern, and which is
to be borne by the proprietor of that concern alone. Between the insurer and
insured, the term includes losses of this description, as far as the
underwriter is liable. Particular average must not be understood as a total
loss of a part; for these two kinds of losses are perfectly distinct from
each other. A total loss of a part may be recovered, where a particular
average would not be recoverable. See Stev. on Av. 77.
PARTICULAR AVERMENT, pleading. Vide Averment.
PARTICULAR CUSTOM. A particular custom is one which only affects the
inhabitants of some particular district. To be good, a particular custom
must possess these requisites: 1. It must have been used so long that the
memory of man runneth not to the contrary. 2. It must have been continued.
3. It must have been peaceable. 4. It must be reasonable. 5. It must be
certain. 6. It must be consistent with itself. 7. lt must be consistent with
other customs. 1 Bl. Com. 74, 79.
PARTICULAR ESTATE. An estate which is carved out of a larger and which
precedes a remainder; as, an estate for years to A, remainder to B for life;
or, an estate, for life to A, remainder to' B in tail: this precedent estate
is called the particular estate. 2 Bl. Com. 165; 4 Kent, Com. 226; 16 Vin.
Abr. 216; 4 Com. Dig. 32; 5 Com. Dig. 346.
PARTICULAR, LIEN, contracts. A right which a person has to retain property
in respect of money or labor expended on such particular property. For
example, when a tailor has made garments out of cloth delivered to him for
the purpose, he is not bound to part with the clothes until his employer,
has paid him for his services; nor a ship carpenter with a ship which he has
repaired; nor can an engraver be compelled to deliver the seal which he has
engraved for another, until his compensation has been paid. 2 Roll. Ab. 92;
3 M. & S. 167; 14 Pick. 332; 3 Bouv. Inst. n. 2514. Vide Lien.
PARTICULARS, practice. The items of which the accounts of one of the parties
is composed, and which are frequently furnished to the opposite party in a
bill of particulars. (q.v.)
PARTIES, contracts. Those persons who engage themselves to do, or not to do
the matters and things contained in an agreement.
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2. All persons generally can be parties to contracts, unless they labor
under some disability.
3. Consent being essential to all valid contracts, it follows that
persons who want, first, understanding; or secondly, freedom to exercise
their will, cannot be parties to contracts. Thirdly, persons who in
consequence of their situation are incapable to enter into some particular
contract. These will be separately considered.
4.-Sec. 1. Those persons who want understanding, are idiots and
lunatics; drunkards and infants,
5.-1. The contracts of idiots and lunatics, are riot binding; as they
are unable from mental infirmity, to form any accurate judgment of their
actions; and consequently, cannot give a serious and sufficient
consideration to any engagement. And although it was formerly a rule that
the party could not stultify himself; 39 H. VI. 42; Newl. Contr. 19 1 Fonb.
Eq. 46, 7; yet this rule has been so relaxed, that the defendant may now set
up this defence. 3 Camp. 128; 2 Atk. 412; 1 Fonb. Eq. n. d.; and see Highm.
on Lun. 111, 112; Long on Sales, 14; 3 Day's Rep. 90 Chit. on Contr. 29,
257, 8; 2 Str. 1104.
6.-2. A person in a state of complete intoxication has no agreeing
mind; Bull. N. P. 172; 3 Campb. 33; Sugd. Vend. 154 Stark. Rep. 126; and his
contracts are therefore void, particularly if he has been made intoxicated
by the other party. 1 Hen. & Munf. 69; 1 South. Rep. 361; 2 Hayw. 394; see
Louis. Code, art. 1781; 1 Clarke's R. 408.
7.-3. In general the contract of an infant, however fair and
conducive to his interest it may be, is not binding on him, unless the
supply of necessaries to him be the object of the agreement; Newl. Contr. 2;
1 Eq. Cas. Ab. 286; l Atk. 489; 3 Atk. 613; or unless he confirm the
agreement after he shall be of full age. Bac. Abr. Infancy; I 3. But he may
take advantage of contracts made with him, although the consideration were
merely the infant's promise, as in an action on mutual promises to marry.
Bull. N. P. 155; 2 Str. 907; 1 Marsh. (Ken.) Rep. 76; 2 M. & S. 205. See
Stark. Ev. pt. iv. page 724; 1 Nott & McCord, 197; 6 Cranch, 226; Com. Dig.
Infant; Bac. Abr. Infancy and Age; 9 Vin. Ab. 393, 4; Fonb. Eq. b. 1 c. 2;
Sec. 4, note b; 3 Burr. 1794; 1 Mod. 25; Str. 937; Louis. Code, article
1778.
8.-Sec. 2. Persons who have understanding, who, in law, have not
freedom to exercise their will, are married women; and persons under duress.
9.-1. A married woman has, in general, no power or capacity to
contract during the coverture. Com. Dig. Baron & Feme, W; Pleader, 2 A 1.
She has in legal contemplation no separate existence, her husband and
herself being in law but one person. Litt. section 28; see Chitty on Cont.
39, 40. But a contract made with a married woman, and for her benefit, where
she is the meritorious cause of action, as in the instance of an express
promise to the wife, in consideration of her personal labor, as that she
would cure a wound; Cro. Jac. 77; 2 Sid. 128; 2 Wils. 424; or of a bond or
promissory note, payable on the face thereof to her, or to herself and
husband, may be enforced by the husband and wife, though made during the
coverture. 2 M. & S. 396, n. b.; 2 Bl. Rep. 1236; 1 H. Black. 108. A married
woman has no original power or Authority by virtue of the marital tie, to
bind her husband by any of her contracts. The liability of a husband on his
wife's engagements rests on the idea that they were formed by his authority;
and if his assent do not appear by express evidence or by proof of
circumstances from which it may reasonably, be inferred, he is not liable. 1
Mod. 125; 3 B. & C. 631; see Chitty on Cont. 39 to 50.
10.-2. Contracts may be avoided on account of duress. See that word,
and also Poth. Obl. P. 1, c. 1, s. 1, art. 3, Sec. 2.
11.-Sec. 3. Trustees, executors, administrators, guardians, and all
other, persons who make a contract for and on behalf of others, cannot
become, parties to such contract on their own. account; nor are they allowed
in any case to purchase the trust estate for themselves. 1 Vern. 465; 2 Atk.
59; 10 Ves. 3; 9 Ves. 234; 12 Ves. 372, 3 Mer. Rep. 200; 6 Ves. 627; 8 Bro.
P. C. 42 10 Ves. 381; 5 Ves. 707; 13 Ves. 156; 1 Pet. C. C. R. 373; 3 Binn.
54; 2 Whart. 53; 7 Watts, 387; 13 S. & R, 210; 5 Watts, 304; 2 Bro. C. C.
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400; White's L. C. in Eq. *104-117; 9 Paige, 238, 241, 650, 663; 1 Sandf. R.
251, 256; 3 Sandf. R. 61; 2 John. Ch. R. 252; 4 How. S. C. 503; 2 Whart. 53,
63; l5 Pick. 24, 31. As to the transactions between attorneys and others in
relation to client's property, see 2 Ves. jr. 201; 1 Madd. Ch. 114; 15 Ves.
42; 1 Ves. 379; 2 Ves. 259. The contracts of alien enemies may in, general
be avoided, except when made under the license of the government, either
express or implied. 1 Kent, Com. 104. See 15 John. 6; Dougl. 641. As to the
persons who make contracts in equity, see Newl. Cont. c. 1, pp. l to 33.
PARTIES TO ACTIONS. Those persons who institute actions for the recovery of
their rights, and those persons against whom they are instituted, are the
parties to the actions; the former are called plaintiffs, and the latter,
defendants. The term parties is understood to include all persons who are
directly interested in the subject-matter in issue, who have right to make
defence, control the proceeding, or appeal from the judgment. Persons not
having these rights are regarded as strangers to the cause. 20 How. St. Tr.
538, n.; Greenl. Ev. Sec. 523
2. It is of the utmost importance in bringing actions to have proper
parties, for however just and meritorious the claim may be, if a mistake has
been made in making wrong persons, either plaintiffs or defendants, or
including too many or too few persons as parties, the plaintiff may in
general be defeated.
3. Actions are naturally divided into those which arise upon contracts,
and those which do not, but accrue to the plaintiff in consequence of some
wrong or injury committed by the defendant. This article will therefore be
divided into two parts, under which will be briefly considered, first, the
parties to actions arising upon contracts; and, secondly, the parties to
actions arising upon injuries or wrongs, unconnected with contracts,
committed b the defendant.
4.-Part I. Of parties to actions arising on contracts. These are the
plaintiffs and the defendants.
5.-Sect. 1. Of the plaintiffs. These will be considered as follows:
Sec. 1. Between the original contracting parties. An action. on a
contract, whether express or implied, or whether it be by parol, or under
seal, or of record, must be brought in the name of the party in whom the
legal interest is vested. 1 East, R. 497; and see Yelv. 25, n. l; 13 Mass.
Rep. 105; 1 Pet. C. C. R. 109; 1 Lev. 235; 3 Bos. & Pull. 147; 1 ii. Bl. 84;
5 Serg. & Rawle, 27; Hamm. on Par. 32; 2 Bailey's R. 55; 16 S. & R. 237,; 10
Mass. 287; 15 Mass. 286 10 Mass. 230; 2 Root, R. 119.
6.-Sec. 2. Of the number of plaintiffs who must join. When a contract
is made with several, if their legal interests were joint, they must all, if
living, join in the action for the breach of the contract. 1 Saund. 153,
note 1; 8 Serg. & Rawle, 308; 10 Serg. & Rawle, 257; 10 East, 418; 8 T. R.
140; Arch. Civ. Pl. 58; Yelv. 177, note 1. But dormant partners need not
join their copartners. 8 S. & R. 85; 7 Vern. 123; 2 Vern. 65; 6 Pick. 352; 4
Wend. 628; 8 Wend. 666; 3 Cowen, 84; 2 Harr. & Gill, 159. When a contract is
made and a bond is given to a firm by a particular name, as A B and Son, the
suit must be brought by the actual partners, the two sons of A B, the
latter having been dead several years at the time of making the contract. 2
Campb. 548. When a person who has no interest in the contract is joined with
those who have, it is fatal. 19 John. 213 2 Penn. 817; 2 Greenl. 117.
7.-Sec. 3. When the interest of the contract has been assigned. Some
contracts are assignable at law; when these are assigned, the assignee may
maintain an action in his own name. Of this kind are promissory notes, bills
of exchange, bail-bonds, replevin-bonds; Hamm. on Part. 108; and covenants
running with the land pass with the tenure, though not made with assigns. 5
Co. 24; Cro. Eliz., 552; 3 Mod. 338; 1 Sid. 157; Hamm, Part. 116; Bac. Abr.;
Covenant, E 5. When a contract not is signable at law has been assigned, and
a recovery on such contract is sought, the action must be in the name of
the assignor for the use of the assignee.
8.-Sec. 4. When one or more of several obligees, &c., is dead. When
one or more of several obligees, covenantees, partners or others, having a
joint interest in the contract; not running with the land, dies, the action
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must be brought in the name of the survivor, and that fact averred in the
declaration. 1 Dall. 65, 248; 1 East, R. 497; 2 John. Cas. 374; 4 Dalt. 354;
Arch. Civ. Pl. 54, 5; Addis. on Contr. 285; 1 Chan. Rep. 31; Yelv. 177.
9.-Sec. 5. In the case o executors and administrators. When a
personal contract, or a covenant not running with the land, has been made
with one person only, and he is dead, the action for the breach of it must
be brought in the name of the executor or administrator in whom the legal
interest in the contract is vested; 2 H. Bl. 310; 3 T. R. 393; and all the
executors or administrators must join. 2 Saund. 213; Went.95; 1 Lev.161; 2
Nott & McCord, 70; Hamm. on Part. 272.
10.-Sec. 6. In the case of bankruptcy or insolvency. In the case of
the bankruptcy or insolvency of a person who is beneficially interested in
the performance; of a contract made before the act of bankruptcy or before,
the assignment under the insolvent laws, the action should be brought in the
name of his assignees. 1 Chit. Pl. 14; 2 Dall. 276; 3 Yeates, 520; 7 S. & R.
182; 5 S. & R. 394; 9 S, & R. 434. See 3 Salk. 61; 3 T. R. 779; Id. 433;
Hamm. on Part. 167; Com. Dig. Abatement, E 17.
11.-Sec. 7. In case of marriage. This part of the subject will be
considered with reference to those cases. 1st. When the husband and wife,
must join. 2d. When the husband must sue alone. 3d. When the wife must sue
alone. 4th. When they may join or not at their election. 5th. Who is to sue
in the case of the death of the husband or wife. 6th. When a woman marries,
lis pendens.
12.-1. To recover the chose in action of the wife, the husband must,
in general, join, when the cause of action would survive. 3 T. R. 348; 1 M.
& S. 180; Com. Dig. Baron & Feme, V; Bac. Ab. Baron & Feme, K; 1 Yeates' R.
551; 1 P. A. Browne's R. 263; 1 Chit. Pl. 17.
13.-2. In general the wife cannot join in any action upon a contract.
made during coverture, as for work and labor, money lent, or goods sold by
her during that time, 2 Bl. Rep. 1239; and see 1 Salk. 114; 2 Wils. 424.; 9
East, 412; 1 Str. 612; 1 M. & S. 180; 4 T. R. 516; 3 Lev. 103; Carth. 462;
Ld. Raym. 368; Cro, Eliz. 61; Com. Dig. Baron & Feme, W.
14.-3. When the husband is civiliter mortuus, see 4 T. Rep. 361; 2
Bos. & Pull. 165; 4 Esp. R. 27; 1 Selw. N. P. 286; Cro. Eliz. 1519; 9 East,
R. 472; Bac. Ab. Baron & Feme, M.; or, as has been decided in England, when
he is an alien and has left the country, or has never been in it, the wife
may, on her own separate contracts, sue alone. 2 Esp. R. 544; 1 Bos. & Pull.
357; 2 Bos. & Pull. 226; 1 N. R. 80; 11 East, R. 301; 3 Camp. R. 123; 5 T.
R. 679. But the rights of such husband being only suspended, the disability
may be removed, in one case, by a pardon, and, in the other, by the
husband's return, and then: he must be joined. Broom on Part. s. 114.
15.-4. When a party being indebted to a wife dum sola, after the
marriage gives a bond to the husband and wife in consideration of such debt,
they may join, or the husband may sue alone on such contract. 1 M. & B. 180;
4 IT. R. 616 1 Chit. Pl. 20.
16.-5. Upon the death of the wife, if the husband survive, he may sue
for, anything he became entitled to during the coverture; as for rent
accrued to the wife during the coverture. 1 Rolle's Ab. 352, pl. 5; Com.
Dig. Baron & Feme, Z; Co. Litt. 351, a, n. 1. But the husband cannot sue in
his own right for the choses in action of the wife, belonging to her before
coverture. Hamm. on Part. 210 to 215.
17. When the wife survives the husband, she may sue on all contracts
entered into with her before coverture, which remain unsatisfied; and she
may recover all arrears of rent of her real estate, which became due during
the coverture, or their joint demise. 2 Taunt. 181; 1 Roll's Ab. 350 d.
18.-6. When a suit is instituted by a single woman, or by her and
others, and she afterwards marries, lis pendens, the suit abates. 1 Chit.
Pl. 437; 14 Mass. R. 295; Brayt. R. 21.
19.-Sec. 8. When the plaintiff, is a foreign government, it must have
been recognized by the government of this country to entitle it to bring an
action. 3 Wheat. R. 324; Story, Eq. Pl. Sec. 55. See 4 Cranch, 272; 9 Ves.
347; 10 Ves. 354; 11 Ves. 283; Harr. Dig. 2276.
20.-Sect. 2. Of the defendants. These will be considered in the
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following order: Sec. 1. Between the original parties. The action upon an
express contract, must in general be brought against the party who made it.
8 East, R. 12. On implied contracts against the person subject to the legal
liability. Hamm. Part. 48; 2 Hen. Bl. 563. Vide 6 Mass. R. 253; 8 Mass. Rep.
198; 11 Mass. R. 335; 6 Binn. R. 234; 1 Chit. Pl. 24.
21.-Sec. 2. Of the number of defendants. For the breach of a joint
contract made by several parties, they should all be made defendants; 1
Saund: 153, note 1; Id. 291 b, n. 4; even though one be a bankrupt or
insolvent. 2 M. & S. 23. Even an infant must be joined, unless the contract
as to him be entirely void. 3 Taunt. 307; 5 John R. 160. Vide 5 John. R.
280; 11 John. R. 101; 5 Mass. R. 270; 1 Pick. 500. When a joint contractor
is dead, the suit should be brought against the survivor, 1 Saund. 291, note
2. The misjoinder of defendants in an action ex contractu, by joining one
who is not a contractor, is fatal. 3 Conn. 194; Pet. C. C. 16; 2 J. J.
Marsh. 88; 1 Breese, 128; 2 Rand. 446; 10 Pick. 281.
22.-3. In case of a change of credit, and of covenants running with
the land, &c. In general in the case of a mere personal contract, the action
for the breach of it, cannot be brought against the person to whom the
contracting party has assigned his interest, and the original party can
alone be sued; for example, if two partners dissolve their partnership, and
one of them covenant with the other that he will pay all the debts, a
creditor may nevertheless sue both. Upon a covenant running with land, which
must concern real property, or the estate therein; 3 Wils. 29; 2 H. Bl. 133;
10 East, R. 130; the assignee of the lessee is liable to an' action for a
breach of the covenant after the assignment of the estate to him, and while
the estate remain in him, although he have not take possession. Bac. Ab.
Covenant, E 34; 3 Is. 25; 2 Saund. 304, n. 12; Woodf. L. & T. 113; 7 T. R.
312; Bull. N. P. 159; 3 Salk. 4; 1 Dall. R. 210,; 1 Fonb. Eq. 359, note y;
Hamm. N. P. 136.
23.-Sec. 4. When one of several obligers, &c. is dead. When the
parties were bound by a joint contract, and one of them dies, his executor
or administrator is at law discharged from liability, and the survivor alone
can be sued. Bac. Ab. Obligation, D 4; Vin. Ab. Obligation, P 20; Carth.
105; 2 Burr. 1196. And when the deceased was a mere surety, his executors
are not liable even in equity. Vide 1 Binn. R. 123.
24.-Sec. 5. In the case of executors an administrators. When the
contracting party is dead, his executor or administrator, or, in case of a
joint contract, the executor or administrator of the survivor, is the party
to be made defendant. Ham. on Part. 156. On a joint contract, the executors
of the deceased contractor, the other surviving, are discharged at law, and
no action can be supported against them; 6 Serg. & R. 262; 2 Whart. R. 344;
2 Browne, Rep. 31; and, if the deceased joint contractor was a mere surety,
his representatives are not liable either at, law or in equity. 2 Serg. & R.
262; 2 Whart. 344; P. A. Browne's R. 31. All the executors must be sued
jointly; when administration is taken on the debtor's estate, all his
administrators must be joined, and if one be a married woman, her husband
must also be a party. Cro. Jac. 519.
25.-Sec. 6. In the case of bankruptcy or insolvency. A discharged
bankrupt cannot be sued. A discharge under the insolvent laws does not
protect the property of the insolvent, and he may in general be sued on his
contracts, though he is not liable to be arrested for a debt which was due
and not contingent at the date. of his discharge. Dougl. 93; 8 East, R. 311;
1 Saund. 241, n. 5; Ingrah. on Insol. 377.
26.-Sec. 7. In case of marriage. This head will be divided by
considering, 1. When the husband and wife must be joined. 2. When the
husband must be sued, alone. 3. When the wife must be sued alone. 4. When
the husband and wife may be joined or not at the election of the plaintiff.
5. Who is to be sued in case of the death of the husband or wife. 6. Of
actions commenced against the wife dum sola, which are pending at her
marriage.
27.-1. When a feme sole who has entered into a contract marries, the
husband and wife must in general be jointly sued. 7 T. R. 348; All. 72; 1
Keb. 281; 2 T. R. 480; 3 Mod. 186; 1 Taunt. 217; 7 Taunt. 432; 1 Moore, 126;
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aid, s6e 8 Johns. R. 2d ed. 115.; 15 Johns. R. 403, 483; 17 Johns. Rep,
16't; 7 Mass. R. 291, Com. Dig. Pleader, 2 A 2; 1 Bing. R. 60. But if
the husband be away, or live separate from his wife, she may, on a contract
of which she is the meritorious cause, bring an action in the Paine of her
husband, on indemnitying the latter for costs. 4 B. & A. 419; 2 C. & M. 388
Addis. on Contr. 342. And, on such contract, she may sue as a feme sole when
her husband is civiliter mortuus. Addis. on Contr. 342 1 Salk. 116; 1 Lord
Raym. 147; 2 M. & W. 65; Moore, 851.
28.-2. When the wife cannot be considered either in person, or
property as creating the cause of action, as in the case of a mere personal
contract made during the coverture, the husband must be sued alone. Com.
Dig. Pleader, 2 A 2; 8 T. R. 545; 2 B. & P. 105; Palm. 312; 1 Taunt. 217; 4
Price, 48; 16 Johns. R. 281.
29.-3. The wife can in general be sued alone, in the same cases where
she can sue alone, the cases being reversed.
30.-4. When the husband, in consequence of some new consideration,
undertakes to pay a debt of the wife dum sola, he may be sued alone, or the
husband and wife. may be made joint defendants. All. 73; 7 T. R. 349; vide
other cases in Com. Dig. Baron & Feme, Y; 1 Rolle's Ab. 348, pl. 45, 50;
Bac. Ab. Baron & Feme, L.
31.-5. Upon the death of the wife, her executor, when she has
appointed one under a power, or her administrator, is alone responsible for
a debt or duty she contracted dum sola. The husband, as such, is not liable.
Com. Dig. Baron & Feme, 2 C; 3 Mod. 186; Rep. Temp. Talb. 173; 3 P. Wms.
410. When the wife survives, she may be sued for her contracts made before
coverture. 7 T. R. 350; 1 Camp. R. 189.
32.-6. When a single woman, being sued, marries lis pendens, the
plaintiff may proceed to judgment, as if she were a feme sole. 2 Rolle's R.
53; 2 Str, 811.
33. Part 2. Of parties to actions in form ex delicto. These are
plaintiffs and defendants.
34.-Sect. 1. Of plaintiffs. These will be separately, considered as
follows:
35.-Sec. 1. With reference to the interest. Of the plaintiff. The
action for a tort must, in general, be brought in the name of the party
whose legal right has been affected, 8 T. R. 330; vide 7 T. R. 47; 1 East,
R. 244; 2 Saund. 47 d; Hamm. on Part. 35, 6; 6 Johns. R. 195;.10 Mass. R.
125 10 Serg. & Rawle, 357.
36.-Sec. 2. With reference to the number of plaintiffs. It is a
general rule that when an injury is done to the property of two or more
joint owners, they must join in the action; and even when the property is
several, yet when the wrong has caused a joint damage, the parties must join
in the action. 1 Saund. 291, g. When suits are brought by tenants in common,
against strangers for the recovery of the land, inasmuch as they have
several titles, they cannot agreeably to the rules of the common law, join,
but must bring separate actions; and this seems to be the rule in Missouri.
1 Misso. R. 746. This rule has been changed in some of the states. In
Connecticut, when the plaintiff claims on the title of all the tenants, he
recovers for their benefit, and his possession will be theirs. 1 Swift's
Dig. 103. In Massachusetts, Mass. Rev. St. 611, and Rhode Island, R. I.
Laws, 208, all the tenants or any two may join or any one may sue alone. In
Tennessee they usually join. 2 Yerg. R. 228.
37. When personal reputation is the object affected, two or more cannot
join as plaintiffs in the action, although the mode of expression in which
the slander was couched comprehended them all; as when a man addressing
himself to three, said, you have murdered Peter. Dyer, 191, pl. 112; Cro.
Car. 510; Goulds. pl. 6, p. 78. The reason of this is obvious, no one has
any interest in the character of the others, the damages are, therefore,
several to each.
38.-Sec. 3. In general, rights or causes of action arising ex delicto
are not assignable.
39.-Sec. 4. When one of several parties who had an interest is dead.
In such case the action must be instituted by the survivor. 1 Show. 188; S.
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C. Carth. 170.
40.-Sec. 5. When the party injured is dead. The executors or
administrators cannot in general recover damages for a tort, when the,
action must be ex delicto, and the plea to it is not guilty. Vide the
article Actio personalis moritur cum persona, where the subject is more
fully examined.
41.-Sec. 6. In case of insolvency. The statutes generally authorize
the trustee or assignee of an insolvent to institute a suit in his own name
for the recovery of the rights and property of the insolvent. 6 Binn. 189; 8
Serg. & Rawle, 124. But for torts to the person of the insolvent, as for
slander, the trustee or assignee cannot sue. W. Jones' Rep. 215.
42.-Sec. 7. When the tort has been committed, against a woman dum sola
who afterwards married. A distinction is made between those injuries
committed before and those which take place during coverture. For injuries
to the person, personal or real property of the wife, committed before
coverture, when the cause of action would survive to the wife, she must join
in the action. 3 T. R. 627; Rolle's Ab. 347; Com. Dig. Baron & Feme, V. For
an injury to the person of the wife during coverture, by battery, or to her
character, by slander, or for any other such injury, the wife must be joined
with her husband in the suit; when the injury is such that the husband
receives a separate damage or loss, as if in consequence of the battery, he
has been deprived of her society or been put to expense, he may bring a
separate action, in his own name; and for slander of the wife, when words
are not actionable of themselves, and the husband has received some special
damages, the husband must sue alone. 1 Lev. 140; 1 Salk. 119; 3 Mod. 120.
43.-Sect. 2. Of the defendants. Sec. 1. Between the original parties.
All natural persons are liable to be sued for their tortious acts,
unconnected with or in disaffirmance of a contract; an infant is, therefore,
equally liable with an adult for slander, assaults and batteries, and the
like; but the plaintiff cannot bring an action ex delicto which arose out of
a contract, and by that means charge an infant for a breach of a contract.
The form is of no consequence; the only question is whether the action arose
out of contract or otherwise. A plaintiff who hired a horse to an infant,
and the infant by hard, improper and injudicious driving, killed the horse,,
cannot maintain an action ex delicto to recover damages for a breach of this
contract. 8 Rawle's R. 351; 6 Watts' R. 9; 8 T. R. 385; Hamm. N. P. 267. But
see contra, 6 Cranch,226; 15 Mass. 359; 4 McCord, 387. Vide Infant.
44.-Sec. 2. As to the number of defendants. There are torts which,
when committed by several, may authorize a joint action against all the
parties; but when in legal contemplation several cannot concur in the act
complained of, separate actions must be brought against each; the cases of
several persons joining in the publication of a libel, a malicious
prosecution, or an assault and battery, are cases of the first kind verbal
slander is of the second. 6 John. R: 32. In general, When the parties have
committed a tort which might be committed by several, they may be jointly
sued, or the plaintiff may sue one or more of them and not sue the others,
at his election. Bac Ab. Action Qui Tam, D; Roll. Ab. 707; 3 East, R. 62.
45.-Sec. 3. When the interest has been assigned. A liability for a
tort cannot well be assignee; but an estate may be assigned on which was
erected a nuisance, and the assignee will be liable for continuing it, after
having possession of the estate. Com. Dig. Case, Nuisance, B; Bac. Ab.
Actions, B; 2 Salk. 460; 1 B. & P. 409.
46.-4. When the wrongdoer is dead. In this case the remedy for wrongs
ex delicto, and unconnected with contract, cannot in general be maintained.
Vide Actio personalis moritur cum persona.
47.-Sec. 5. In case of insolvency. Insolvency does not discharge the
right of action of the plaintiff in any case; it merely liberates the
defendant from arrest when he has received the benefit of, and been
discharged under, the insolvent laws; an insolvent may therefore be sued for
his torts committed before his discharge.
48.-Sec. 6. In case of marriage. Marriage does not affect or change
the liabilities of the husband and he is alone to be sued for his torts
committed either before or during the coverture. But it is otherwise with
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the wife; after her marriage she has no personal property to pay the damages
which may be recovered, and she cannot even appoint an attorney to defend
her. For her torts committed by her before the marriage, the action must be
against the husband and wife jointly. Bac. Ab. Baron and Feme, L; 5 Binn.
43. They must also be sued jointly for the torts of the wife during the
coverture, as for slander, assault and battery, &c. Bac. Ab. Baron and Feme,
L. See, generally, as, to parties to actions,, 3 United States Dig.
Pleading, I, and Promissory Note, XVI.; Bouv. Inst. Index, h.t.
PARTIES TO A SUIT IN EQUITY. The person who seeks a remedy in chancery by
suit, commonly called a plaintiff, and the person against whom the remedy is
sought, usually denominated the defendant, are the parties to a suit in
equity.
2. It is of the utmost importance, that there should be proper parties;
and therefore no rules connected with the science of equity pleading, are so
necessary to be attentively considered and observed, as those which relate
to the persons who are to be made parties. to a suit, for when a mistake in
this respect is discovered at the hearing of the cause, it may sometimes be
attended with defeat, and will, at least, be followed by delay and expense.
3 John. Ch. R. 555; 1 Hopk. Ch. R. 566; 10 Wheat. R. 152.
3. A brief sketch will be here given by considering, 1. Who may be
plaintiffs. 2. who may be made defendants. 3. The number of the parties.
4.-Sec. 1. Of the plaintiff. Under this head will be considered who
may sue in equity: and,
5.-1. The government, or as the style is in England, the crown) may
sue in a court of equity, not only in suits strictly on behalf of the
government, for its own peculiar rights and interest, but also on behalf of
the rights and interest of those, who partake of its prerogatives, or claim
its peculiar protection. Mitf. Eq. Plead. by Jeremy, 4, 21-24; Coop. Eq. 21,
101. Such suits are usually brought by the attorney general.
6.- 2. As a general rule all persons, whether natural or artificial, as
corporations, may sue in equity; the exceptions are persons who are not sui
juris, as a person not of full age, a feme covert, an idiot, or lunatic.
7. The incapacities to sue are either absolute, or partial.
8. The absolute, disable the party to sue during their continuance; the
partial, disable the party to sue by himself alone, without the aid of
another. In the United States, the principal ab solute incapacity, is
alienage. The alien, to be disabled to sue in equity, must be an alien
enemy, for an alien friend may sue in chancery. Mitf. Equity, PI, 129; Coop.
Equity Pl. 27. But still the subject matter of the suit may. disable an
alien to sue. Coop. Eq. Pl. 25; Co. Lit. 129 b. An alien sovereign or an
alien corporation may maintain a suit in equity in this country. 2 Bligh's
Rep. 1, N. S.; 1 Dow. Rep.. 179, N. S.; 1 Sim. R. 94; 2 Gall. R. 105; 8
Wheat. Rep. 464; 4 John. Ch. Rep. 370. In case if a foreign sovereign, he
must have been recognized by the government of this country before he can
sue. Story's Eq. pl. Sec. 55; 3 Wheat. Rep. 324; Cop. Eq. Pl. 119
9. Partial incapacity to sue exists in the case of infants, of married
women, of idiots and lunatics, or other persons who are incapable, or are by
law specially disabled to sue in their own names; as for example, in
Pennsylvania, and some other states, habitual drunkards, who are under
guardianship.
10.-1. An infant cannot, by himself, exhibit a bill, not only on account
of his want of discretion, but because of his inability to bind himself for
costs. Mitf. Eq. Pl. 25. And when an infant sues, he must sue by his next
friend. Coop, Eq. 27; 1 Sm. Chan. Pl. 54. But as the next friend may
sometimes bring a bill. from improper motives, the court will, upon a proper
application, direct the master to make inquiry on this subject, and if there
be reason to believe it be not brought for the benefit of the infant, the
proceedings will be stayed. 3 P. Wms. 140; Mitf. Eq. Pl. 27; Coop. Eq. Pl.
28.
11.-2. A feme covert must, generally, join with her husband; but when
he has abjured the realm, been transported for felony, or when he is civilly
dead, she may sue as a feme sole. And when she has a separate claim, she may
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even sue her husband, with the assistance of a next friend of her own
selection. Story's Eq. Pl. Sec. 61; Story's Eq. Jur. Sec. 1368; Fonb. Eq.
b. 1, c. 2, Sec. 6, note p. And the husband may himself sue the wife.
12.-3. Idiots and lunatics are generally under the guardianship of
persons who are authorized to bring a suit in the idiot's name, by their
guardian or committee.
13.-Sec. 2. Of the defendant. 1. In general, those persons who may sue
in equity, may be sued. Persons sui juris may defend themselves, but those
under an absolute or partial inability, can make defence only in a
particular manner. A bill may be exhibited against all bodies politic or
corporate, against all persons not laboring under any disability, and all
persons subject to such incapacity, as infants, married women, and lunatics,
or habitual drunkards.
14.-2. The government or the state, like the king in England, cannot
be sued. Story, Eq. Pl. Sec. 69.
15.-3. Bodies politic or corporate, like persons sui juris, defend a
suit by themselves.
16.-4. Infants institute a suit, as has been seen, by next friend, but
they must defend a suit by guardian appointed by the court, who is usually
the nearest relation, not concerned in interest, in the matter in question.
Mitf. Eq. Pl. 103; Coop. Eq. Pl. 20, 109; 9 Ves. 357; 10 Ves. 159; 11 Ves.
563; 1 Madd. R. 290; Vide Guardian, n. 6.
17.-5. Idiots and lunatics defend by their committees, who, in
ordinary circumstances, are appointed guardians ad litem, for that purpose,
as a matter of course. Mitf. Eq. Pl. 103; Coop. Eq. Pl. 30, 32; Story's Eq.
Pl. SS70; Shelf on Lun. 425.; and vide 2 John. Ch. R. 242, where, Chancellor
Kent held, that the idiot need not be made a party as defendant to a bill
for the payment of his debts, but his committee only. When the idiot or
lunatic has no committee, or the latter has an interest adverse to that of
the lunatic or idiot, a guardian ad litem will be appointed Mitf. Eq. Pl.
103;; Story's Eq. Pl. Sec. 70.
18.-6. In general, a married woman, when she is sued, must be joined
with her husband, and their answer must also be joint. But there axe
exceptions to this rule in both its requirements.
19.-1. A married woman may be made a defendant, and answer as a feme
sole, in some instances, as when her husband is plaintiff in the suit, and
sues her as defendant, and from the like necessity, when the husband is an
exile or has abjured the realm, or has been transported under a criminal
sentence, or is an alien enemy. She may be sued and answer as a feme sole.
Mitf. Eq. Pl. 104, 105; Coop. Eq. Pl. 30.
20.-2. When her husband is joined, or ought to be joined, she cannot
make a separate defence, without a special order of court. The following are
instances where such orders will made. When a married woman claims as
defendant in opposition to her husband, or lives separate from him, or
disapproves of the defence he wishes her to make, she may obtain an order of
court for liberty to answer, and defend the suit separately. And when the
husband is abroad, the plaintiff may obtain, an order that she shall answer
separately; and, if a woman obstinately refuses to join a defence with her
husband, the latter may obtain an order to compel her to make a separate
answer. Mitf. Eq: Pl.: 104; Coop. Eq. Pl. 30; Story's Eq 71.
21.-3. As to the number of parties. It is a general rule that every
person who is at all interested in the subject-matter of the suit, must be
made a party. It is, the constant aim of a court of equity, to do complete
justice by deciding upon and settling the rights of all persons interested
in the subject of the suit, to make the performance of the order of the
court perfectly safe to those who are compelled to obey it, and, to prevent
future litigation. For this purpose, all persons materially interested in
the subject ought to be parties to the suit, plaintiffs or defendants,
however numerous they may be, so that a complete decree may be made binding
on those parties. Mitford's Eq. Pl. 144; 1 John. Ch. R. 349; 9 John. R. 442;
2 Paige's C. R. 278; 2 Bibb, 184; 3 Cowen's R. 637; 4 Cowen's R. 682 9
Cowen's R. 321; 2 Eq. Cas. Ab. 179; 3 Swans. R. 139. When a great number of
individuals are interested as in the instance of creditors seeking an
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account of the estate of their deceased debtor for payment of their demands,
a few suing on behalf of the rest may substantiate the suit, and the other
creditors may come in under the decree. 2 Ves. 312, 313. In such case the
bill should expressly show that it is fifed as well on the behalf of other
members as those who are really made the complainants; and the parties must
not assume a corporate, name, for if they assume the style of a corporation,
the bill cannot be sustained. 6 Ves. jr. 773; Coop. Eq. Pl. 40; 1 John. Ch.
R. 349; 13 Ves. jr. 397 16 Ves. jr. 321; 2 Ves. sen. 312 S. & S. 18; Id.
184. In some cases, however, when all the persons interested are, not made
parties, yet, if there be such privily between the plaintiffs and
defendants, that a complete decree may be made, the want of parties is not a
cause of demurrer. Mitf. El q. Pl. 145. Vide Calvert on Parties to Suits in
Equity; Edwards on Parties to Bills in Chancery; Bouv Inst. Index, h.t.
PARTITION, conveyancing. A deed of partition is, one by which lands held in
joint tenancy, coparcenary, or in common, are divided into distinct
portions, and allotted to the several parties, who take them in severalty.
2. In the old deeds of partition, it was merely agreed that one should
enjoy a particular part, and the other, another part, in severalty; but it
is now the practice for the parties mutually to convey and assure to each
other the different estates which they are to take in severalty, under the
partition. Cruise Dig. t. 32, c. 6, s. 15.
PASS BOOK, com. law. A book used by merchants with their customers, in which
an entry of goods sold and delivered to a customer is made.
2. It is kept by the buyer, and sent to the merchant whenever he wishes
to purchase any. article. It ought to be a counterpart of the merchant's
books, as far as regards the customer's account.
3. Among English bankers, the term pass book is given to a small book
made up from time to time, from the banker's ledger, and forwarded to the
customer; this is not considered as a statement of account between the
parties, yet when the customer neglects for a long time to make any
objection to the correctness of the entries he will be bound by them. 2 Atk.
252; 2 Deac. & Ch. 534; 2 M. & W. 2.
PASSAGE. A way over water; a voyage made over the sea or great river; as,
the Sea Gull had a quick passage: the money paid for the transportation of a
person over the sea; as, my, passage to Europe was one hundred and fifty
dollars.
PASSAGE MONEY, contracts. The sum claimable for the conveyance of a person
with or without luggage on the water.
2. The difference between freight and passage money is this, that the
former is claimable for the carriage of goods, and the latter for the
carriage of the person. The same rules which govern the claim for freight
affect that for passage money. 3 Chit. Com. Law, 424; 1 Pet. Adm. Dee. 126;
3 John. 335.
PASSIVE, com. law. All the sums of which one is a debtor. It is used in
contradistinction to active. (q.v.) By active debts are understood those
which may be employed in furnishing assets to a merchant to pay those which
he owes, which are called passive debts.
file his description, specifications, drawings, and model: and if, in the
opinion of the commissioner, the specifications of claim interfere with each
other, like proceeding& may be had in all respects as are in this act
provided in the case of interfering applications: Provided, however, That no
opinion or decision of any board of examiners, under the provisions of this
act, shall preclude any person interested in favor of or against the
validity of any patent which has been or may hereafter be granted, from the
right to contest the same in any judicial court in any action in which its,
validity may come in question.
22. And the same act, s. 8, directs, that whenever, the applicant shall
request it, the patent shall take date from the time of the filing of the
specification and drawings, not however, exceeding six mouths prior to the
actual issuing of the patent; and on like request, and the payment of the
duty herein required, by any applicant, his specification and drawings shall
be filed in the secret archives of the office, until he shall furnish the
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model and the patent be issued, not exceeding the term of one year, the
applicant being entitled to notice of interfering application.
Sec. 5. Of the proceedings to obtain a patent.
23. This section will be divided by considering the proceedings when
there is no opposition, and when there are conflicting claims.
1. Proceedings without opposition
24. The sixth section of the act of July 4, 1836, directs, that before
any inventor shall receive a patent for any such new invention or discovery,
he shall deliver a written description of his invention or discovery, and of
the manner and process of making, constructing, using, and compounding the
same, in such full, clear, and exact terms, avoiding unnecessary prolixity,
as to enable any person skilled in the art or science to which it
appertains, or with which it is most nearly connected, to make, construct,
compound, and use the same; and in case of any machine, he shall fully
explain the principle and the several modes in which he has contemplated the
application of that principle or character by which it may be distinguished
from other inventions and shall particularly specify and point out the part,
improvement, or combination, which he claims as his own invention or
discovery. He shall, furthermore, accompany the whole with a drawing, or
drawings, and written references, where the nature of the case admits of
drawings, or with specimens of ingredients, and of the composition of
matter, sufficient in quantity for the purpose of experiment, where the
invention or discovery is of a composition of matter; which descriptions and
drawings, signed by the inventor and attested by two witnesses; shall be
filed in the patent office; and be shall, moreover, furnish a model of his
invention, in all cases which admit of a representation by model, of a
convenient size to exhibit advantageously its several parts. The applicant
shall also make oath or affirmation that he does verily believe that he is
the original and first inventor or discoverer of the art, machine,
composition, or improvement, for which he solicits a patent, and that he
does not know or believe that the same was ever known or used; and also of
what country he is a citizen; which oath or affirmation may, be made before
any person authorized by law to administer oaths.
25. The fourth section of the act of August 29, 1842, provides that the
oath required for applicants for patents, may be taken, when the applicant
is not, for the time being, residing in the United States, before any
minister plenipotentiary, charge d affaires; consul, or commercial agent,
holding a commission under the government of the United States, or before
any notary public of the country in which such applicant may be.
26. And the act of March 3, 1837, sect. 13, provides that in all cases
in which an oath is required by this act, or by the act to which this is
additional, if the person of whom it is required shall be conscientiously
scrupulous of taking an oath, affirmation may be substituted therefor.
27. The seventh section of the act of July 4, 1836, further enacts, that
on the filing of any such application, description, and specification, and
the payment of the duty hereinafter provided, the commissioner shall make or
cause to be made, an examination of the alleged new invention or discovery;
and if, on any such examination, it shall not appear to the commissioner
that the same had been invented or discovered by any other person in this
country prior to the alleged invention or discovery thereof by the
applicant, or that it had been patented or described in any printed
publication in this or any foreign country, or had been in public use or on
sale with the applicant's consent or allowance prior to the application, if
the commissioner shall deem it to be sufficiently useful and important, it
shall be his duty to issue a patent therefor. But whenever on such
examination it shall appear to the commissioner that the applicant wag not
the original and first inventor or discoverer thereof, or that any part of
that which is claimed as new had before been invented or discovered, or
patented, or described in any printed, publication in this or any foreign
country, as aforesaid, or that the description is defective and
insufficient, he shall notify the applicant thereof, giving him, briefly,
such information and, references as may be useful in judging of the
propriety of renewing his application, or of altering his specification to
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embrace only that part of the invention or discovery which is new. In every
such case, if the applicant shall elect to withdraw his application,
relinquishing his claim to the model, he shall be entitled to receive back
twenty dollars part of the duty required by this act, on filing a notice in
writing of such election in the patent office, a copy of which, certified by
the commissioner, shall be a sufficient warrant to the treasurer for paying
back to said applicant the said sum of twenty dollars. But if the said
applicant in such case shall persist in his claim for a patent, with or
without any alteration of his specification, he shall be required to make
oath or affirmation anew in manner as aforesaid. And if the specification
and claim shall not have been so modified as in the opinion of the
commissioner, shall entitle the applicant to a patent, he may, on appeal,
and upon request in writing, have the decision of the board of examiners, to
be composed of three disinterested persons, who shall be appointed for that
purpose by the secretary of state, one of whom at least, to be selected, if
practicable and convenient, for his knowledge and skill in the particular
art, manufacture, or branch of science to which the alleged invention
appertains; who shall be under oath or affirmation for the faithful and
impartial performance of the duty imposed upon them by said appointment.
Said board shall be furnished with a certificate in writing, of the opinion
and decision of the commissioner, stating the particular grounds of his
objection, and the part or parts of the invention which he considers as not
entitled to be patented. And the same board shall give reasonable notice to
the applicant, as well as to the commissioner of the time and place of their
meeting; that they may have an opportunity of furnishing them with such
facts and evidence as they may deem necessary to. a just decision; and it
shall be the duty of the commissioner to furnish to the board of examiners
such information as he may possess relative to the matter under their
consideration. And on an examination and consideration of the matter by such
board, it shall be in their power, or of a majority of them, to reverse the
decision of the commissioner, either in whole or in part; and their opinion
being certified to the commissioner, he shall be governed thereby, in the
further proceedings to be had on such application: Provided, however, That
before a board shall be instituted in any such case, the applicant shall pay
to the credit of the treasury, as provided in the ninth section of this act,
(see 47,) the sum of twenty-five dollars, and each of said persons so
appointed shall be entitled to receive for his services in each case, a sum
not exceeding ten dollars, to be determined and paid by the commissioner out
of any moneys in his hands, which shall be in full compensation to, the
persons who may be so appointed, for their examination and certificate as
aforesaid.
28. By the twelfth section of the act of March 3, 1839, the commissioner
of patents is vested with power to make all such regulation's in respect to
the taking of evidence to be used in contested leases before him, as may be
just and reasonable and so much of the act of July 4, 1836, as provides for
a board of examiners, is thereby repealed.
29. And by the same act, sect. 11, it is provided, that in all cases
where an appeal is now. allowed by law from the decision of the commissioner
of patents to a board of examiners provided for in the seventh section of
the act to which this is additional, the party, instead thereof, shall have
a right to appeal to the chief justice of the district court of the United
States for the district of Columbia, by giving notice thereof to the
commissioner, and filing in the patent office, within such time as the
commissioner shall appoint, his reasons of appeal, specifically set forth in
writing, and also paying into the patent office, to the credit of the patent
fund, the sum of twenty-five dollars. And it shall be the. duty of said
chief justice, on petition, to hear and determine all such appeals, and to
revise such decisions in a summary manner, on the evidence produced before
the commissioner, at such early and convenient time as he may appoint, first
notifying the commissioner of the time and place of hearing, whose duty it
shall be to give notice thereof to all parties who appear to be interested
therein, in such manner as said judge shall prescribe. The commissioner
shall also lay before the said judge all the original papers and evidence in
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the case, together with the grounds of his decision, fully set forth in
writing, touching all the points involved by the reasons of appeal, to which
the revision shall be confined. And at the request of any party interested,
or at the desire of the judge, the commissioner and the examiners in the
patent office, may be examined under oath, in explanation of the principles
of the machine, or other thing for which a patent, in such case, is prayed
for. And it shall be the duty of said judge after a hearing of any such
case, to return all the papers to the commissioner, with a certificate of
his proceedings and decision, which shall be entered of record in the patent
office; land such decision, so certified, shall govern the further
proceedings of the commissioner in such case, Provided, however, That no
opinion or decision of the judge in any such case, shall preclude any person
interested in favor or against the validity of any patent, which has been or
way hereafter be granted, from the right to contest the same in any judicial
court, in any action in which its validity may come in question.
2. When there are conflicting claims.
30. It is enacted by the 8th section of the act of July 4, 1836, that
whenever an application shall be made for a patent, which, in the opinion of
the commissioner, would interfere with any other patent for which an
application may be pending, or with any unexpired patent which shall have
been granted, it shall be the duty of the commissioner to give notice
thereof to such applicants or patentees; as the case maybe; and if either
shall be dissatisfied with the decision of the commissioner on the question
of priority, right or invention, on a hearing thereof, he may appeal from
such decision, on the like terms and conditions as are provided in the
preceding section of this act and like proceedings, shall be had, to
determine which, or whether either of the applicants is entitled to receive
a patent as prayed for.
31. And by the 16th section of the same act, that whenever there shall
be two interfering patents, or whenever a patent on application shall have
been refused on an adverse decision of a board of examiners, on the ground
that the patent applied for would interfere with an unexpired patent
previously granted, any person interested in any such patent, either by
assignment or otherwise, in the one case, and any such applicant in the
other, may have remedy by bill in equity; and the court having cognizance
thereof, on notice to adverse parties and other due proceedings had, may
adjudge and declare either the patents void in whole or in part, or
inoperative and invalid in any particular part or portion of the United
States, according to the interest which the parties in such suit may possess
in the patent or the inventions patented, and may also adjudge that such
applicant is entitled, according to the principles and provisions of this
act, to have and receive a patent for his invention, as specified in his
claim, or for any part thereof, as the fact of priority of right or
invention shall in any such case be made to appear. And such adjudication,
if it be in favor of the right of such applicant, shall authorize the
Commissioner to issue such patent, on his filing a copy of the adjudication,
and otherwise complying with the requisitions of this act. Provided,
however, that no such judgment or adjudication shall affect the rights of
any persons except the parties to the action and those deriving title from
or under them subsequent to the rendition of such judgment. And the
commissioner is vested by the 12th section of the act of March 3, 1839, with
powers to make such rules and regulations in respect to the taking of
evidence to be used in contested cases before him, as may be just and
reasonable.
32. The act of March 3, 1839, section 10, provides, that the provisions
of the sixteenth section of the before recited act shall extend to all cases
where the patents are refused for any reason whatever, either by the
commissioner of patents or by the chief justice of the district of Columbia,
upon appeals from the decision of said commissioner, as well as where the
same shall have been refused on account of, or by reason of interference
with a previously existing patent; and in all cases where there is ne
opposing party, a copy of the bill shall be served upon the commissioner of
patents, when the whole of the expenses of the proceeding shall be paid by
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the applicant, whether the final decision shall be in his favor or
otherwise.
Sec. 6. Of the patent.
33. This section will be divided by considering, 1. The form of the
patent. 2. The correction of the patent. 3. The special provisions of the
acts of congress occasioned by the burning of the patent office. 4. The
disclaimer. 5. The assignment of patents. 6. The extension of the patent. 7.
The requisites to be observed after the granting of a patent to secure it.
1. Form of the patent.
34. The patent is to be issued in the form prescribed by the act of
congress. The fifth section of the act of July 4, 1836, directs, that all
patents issuing from said office shall be issued in the name of the United
States, and under the seal of said office, and be signed by the secretary of
state, and countersigned by the commissioner of the said office, and shall
be recorded, together with the descriptions, specifications and drawings, in
the said office, in books to be kept for that purpose. Every such patent
shall contain a short description or title of the invention or discovery,
correctly indicating its nature and design, and in its terms grant to the
applicant or applicants, his or their heirs, administrators, executors or
assigns, for a term not exceeding fourteen years, the full and exclusive
right and liberty of making, using, and vending to others to be used, the
said invention or discovery, referring to the specifications for the
particulars thereof, a copy of which shall be annexed to the patent,
specifying what the patentee claims as his invention or discovery. It is
usually dated at the time of issuing it, but by a provision of the last
mentioned act, section 8, whenever the applicant shall request it, the
patent shall take date, from the time of filing, the specification and
drawings, not, however, exceeding six months prior to the actual issuing of
the patent.
2. Correction of patent.
35. It is provided by the thirteenth section of the act of July. 4,
1836, that whenever any patent which has heretofore been granted, or which
shall hereafter be granted, shall be inoperative or invalid, by reason of a
defective or insufficient description or specification, or by reason of the
patentee claiming in his specification as his own invention, more than he
had or shall have a right to claim as new; if the error has, or shall have
arisen b y inadvertency, accident or mistake, and without any fraudulent or
deceptive intention, it shall be lawful for the commissioner, upon the
surrender to him of such patent, and the payment of the further duty of
fifteen dollars, to cause a new patent to be issued to the said inventor,
for the same invention, for the residue of the period then unexpired for
which the original patent was granted, in accordance with the patentee's
corrected description and specification. And in the event of his death, or
any assignment by him made of the original patent, a similar right shall
vest in his executors, administrators, or assignees. And the patent, so
reissued, together with the corrected description and specification, shall
have the same effect and operation in law, on the trial of all actions,
hereafter commenced for causes subsequently accruing, as though the same had
been originally filed in such corrected form, before the issuing out of the
original patent. And whenever the original patentee shall be desirous of
adding the description and specification of any new improvement of the
original invention or discovery which shall have been invented or discovered
by him subsequent to the date of his patent, he may, like proceedings being
had in all respects as in the case of original applications, and on the
payment of fifteen dollars, as hereinbefore provided, have the same annexed
to the original description and specification; and, the commissioner shall
certify, on the margin of such annexed description and specification, the
time of its being annexed and recorded; and the same shall thereafter have
the same effect in law, to all intents and purposes, as though it had been
embraced in the original description and specification.
36. And it is enacted by the act of March 3, 1837, section 5, that,
whenever a patent shall be returned for correction and reissue under the
thirteenth section of the act to which this is additional, and the patentee
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shall desire several patents to be issued for distinct and separate parts of
the thing patented, he shall first pay, in manner and in addition to the sum
provided by that act, the sum of thirty dollars for each additional patent
so to be issued; Provided, however, that no patent made prior to the
aforesaid fifteenth day of December, 1836, shall be corrected and reissued
until a duplicate of the model and drawing of the thing as originally
invented, verified by oath as shall be required by the commissioner, shall
be deposited in the patent office: Nor shall any addition of an improvement
be made to any patent heretofore granted, nor any new patent to be issued
for an improvement made in any machine, manufacture, or process, to the
original inventor, assignee or possessor, of a patent therefor, nor any
disclaimer be admitted to record, until a duplicate model and drawing of the
thing originally intended, verified as aforesaid, shall have been deposited
in the patent office, if the commissioner shall require the same; nor shall
any patent be granted for an invention, improvement, or discovery, the model
or drawing of which shall have been lost, until another model and drawing,
if required by the commissioner, shall, in like manner, be deposited in the
patent office:
37. And in all such cases, as well as in those which may arise under the
third section of this act, the question of compensation for such models and
drawings, shall be subject to the judgment and decision of the commissioners
provided for in the fourth section, under the same limitations and
restrictions as are therein prescribed.
3. Special provisions occasioned by the burning the patent office.
38. The act of March 3, 1837, was passed to remedy the inconveniences
arising from the burning of the patent office. It is enacted,
39.-Sect. 1. That any person who may be in possession of, or in any way
interested in, any patent for an invention, discovery, or improvement,
issued prior to the fifteenth day of December, in the year of our Lord one
thousand eight hundred and thirty-six, or in an assignment of any patent, or
interest therein, executed, and recorded prior to the said fifteenth day of
December, may, without charge, on presentation or transmission thereof to
the commissioner of patents, have the same recorded anew in the patent
office, together with the descriptions, specifications of claim and drawings
annexed or belonging to the same; and it shall be the duty of the
commissioner to cause the same, or any authenticated copy of the original
record, specification, or drawing which he may obtain, to be transcribed and
copied into books of record to be kept for that purpose; and wherever a
drawing was not originally annexed to the patent and referred to in the
specification and drawing produced as a delineation of the invention, being
verified by oath in such manner as the commissioner shall require, may be
transmitted and placed on file, or copied as aforesaid, together with the
certificate of the oath; or such drawings may be made in the office, under
the direction of the commissioner, in conformity with the specification. And
it shall be the duty of the commissioner to take such measures as may be
advised and determined by the board commissioners provided for by the fourth
section, of this act, to obtain the patents, specifications, and copies
aforesaid, for the purpose of being so transcribed and recorded. And it
shall be the duty of each of the several clerks of the judicial courts of
the United States, to transmit, as soon as may be, to the commissioner of
the patent office, a statement of all the authenticated copies of patents,
descriptions, specifications, and drawings of inventions and discoveries
made and executed prior to the aforesaid fifteenth day of December, which
may be found on the files of his office; and also to make out and transmit
to said commissioner for record as aforesaid, a certified copy of every such
patent, description, specification, or drawing, which shall be specially
required by such commissioner.
40.-Sect. 2. That copies of such record and drawings, certified by the
commissioner, or, in his absence, by the chief clerk, shall be prima facie
evidence of the particulars of the invention and of the patent granted
therefore, in any judicial court of the United States, in all cases where
copies of the original record or specification and drawings would be
evidence, without proof of the loss of such originals and no patent issued
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therefor by the patentee or other person prior to the aforesaid, fifteenth
day of December, shall, after the first day of June next, be received in
evidence in, any of the said courts in behalf of the patentee or other
person who shall be in possession of the same, unless it shall have been so
recorded anew, and a drawing of the invention, if separate from the patent,
verified as, aforesaid, deposited in the patent office; nor shall any
written assignment of any such patent, executed and, recorded prior to the
said fifteenth day of December, be received in evidence in any of the said
courts in behalf of the assignee or other person in possession thereof,
until it shall have been so recorded anew.
41.-Sect. 3. That whenever it shall appear to the commissioner that any
patent was destroyed by the burning of the patent office building on the
aforesaid fifteenth day of December, or was otherwise lost prior thereto, it
shall be his duty, on application terested therein, to issue a new patent
for the same invention or discovery bearing the date of the original patent,
with his certificate thereon that it was made and issued pursuant to the
provisions of the third section of this act, and shall enter the same of
record: Provided, however, That before such patent shall be issued, the
applicant therefor shall deposit in the patent office a duplicate, as near
as may be, of the original model, drawings, and description, with
specification of the invention or discovery, verified by oath, as shall be
required by the commissioner; and such patent and copies of such drawings
and descriptions, duly certified, shall be admissible as evidence in any
judicial court of the United States, and shall protect the rights of the
patentee, his administrators, heirs and assigns, to the extent only in which
they would have been protected by the original patent and specification.
42. The act of August 29, 1842, sect. 2, extends the provisions of the
last section to patents granted prior to the said fifteenth day of December,
though they may have been lost subsequently; provided, however, the same
shall not have been recorded anew under the provisions of said act.
4. Of the disclaimer.
43. The act of March 3, 1837 sect. 7, authorizes any patentee who shall
have, through inadvertence, accident, or mistake, made his specification of
claim too broad, claiming more than that of which he was the original or
first inventor, some material and substantial part of the thing patented
being truly and justly his own, any such patentee, his administrators,
executors, and assigns, whether of the, whole or of a sectional interest
therein, may make disclaimer of such parts of the thing patented as the
disclaimant shall not claim to hold by virtue of the patent or assignment,
stating therein the extent of his interest in, such patent; which disclaimer
shall be in writing, attested by one or more witnesses, and recorded in the
patent office, on payment by the person disclaiming, in manner as, other
patent duties are required by law to be paid, of the sum of ten dollars. And
such disclaimer shall thereafter be taken and considered as part of the
originals specification, to the extent of the interest which shall be
possessed in the patent or right secured thereby, by the disclaimant, and by
those claiming by or under him subsequent to the record thereof. But no such
disclaimer shall affect any action pending at the time of its being filed,
except so far as may relate to the question of unreasonable neglect or delay
in filing the same.
5. Assignment of patents.
44. By virtue of the act of July 4, 1836, sect. 11, every patent shall
be assignable in law, either as to the whole interest, or, any undivided
part thereof, by any instrument in writing; which assignment, and also every
grant and conveyance of the exclusive right under any patent, to make and
use, and to grant to others to make and use, the thing patented within and
throughout any, specified part or portion of the United States, shall be
recorded in the patent office within three months from the execution
thereof. This act required the payment of a fee of three dollars to be paid
by the assignee, but this provision has been repealed by the act of March 3,
1839, s. 8, and such assignments, grants, and conveyances, shall, in future,
be recorded without any charge whatever. But, by the act of May 27, 1848,
Minot's. Stat. at Large, U. S. 231, it is enacted, That hereafter the
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commissioner of patents shall require a fee of one dollar for recording any
assignment, grant or conveyance, of the, whole or any part of the interest
in letters-patent, or power of attorney, or license to make or use the
things patented, when such instrument shall not exceed three hundred words;
the sum of two dollars when it shall exceed three hundred, and shall not
exceed one thousand words and the sum of three dollars when it shall exceed
one thousand words; which fees shall in all cases be paid in advance.
6. The extension of the patent.
45. The act of July. 4, 1836, sect. 18; directs, That whenever any
patentee of an invention or discovery shall desire an extension of his
patent beyond the term of its limitation, be may make application therefor,
in writing, to the commissioner of the patent office, setting forth the
grounds thereof, and the commissioner shall, on the applicant's paying the
sum of forty dollars to the treasury, as in the case of an original
application, for a patent, cause to be published, in one or more of the
principal newspapers in the city of Washington, and in such other paper or
papers as he may deem proper, published in the section of country most
interested adversely to the extension of the patent, a notice of such
application and of the time and place when and where the same will be
considered, that any, person may appear and show cause why the extension
should not be granted. And the secretary of state, the commissioner of the
patent office, and the solicitor of, the treasury, shall constitute a board
to hear and decide upon the evidence produced before them both for and
against the extension, and shall sit for that purpose at the time and place
designated in the published notice thereof. The patentee shall furnish to
said board a statement, in writing, under oath, of the ascertained value of,
the invention, and of his receipts and expenditures, sufficiently in detail
to exhibit a true and faithful account of loss and profit in any manner
accruing to him from and by reason of said invention. And if, upon a hearing
of the matter, it shall appear to the full and entire satisfaction of said
board, having due regard to the public interest therein, that it is just and
proper that. the term of the patent should be extended by reason of the
patentee, without neglect or fault on his part, having failed to obtain,
from the use and sale of his invention, a reasonable remuneration for the
time, ingenuity and expense bestowed upon the same, and the introduction
thereof into use, it shall be the duty of the commissioner to renew and
extend the patent, by making a thereon of such extension, for the term of
seven years from and after the expiration of the first term; which
certificate, with a certificate of said board of their judgment and opinion
as aforesaid, shall be entered on record in the patent office; and thereupon
the said patent shall have the same effect in law as though it had been
originally granted for the term of twenty-one years. And the benefit of
such, renewal shall extend to assignees and grantees of the right to use the
thing patented, to the extent of their respective interest therein:
Provided, however, That no extension of a patent shall be granted after the
expiration of the term for which it was originally issued.
7. Requisites to secure the patent.
46. The act of August 29, 1842, section 6, requires, That all patentees
and and assignees of patents hereafter granted, are hereby required to
stamp, engrave, or cause to be stamped or engraved, on each article vended,
or offered for sale, the date of the patent; and if any person or persons,
patentees, or assignees, shall neglect to do so, he, she, or they, shall be
liable to the same penalty, to be recovered and disposed of in the manner
specified in the foregoing fifth section of this act. See 49.
Sec. 7. Duty or tax on patents.
47. The tax or duty on patents is not the same in all cases, foreigners
being required to pay a greater sum than citizens, and the subjects of the
king of Great Britain a greater sum than other foreigners. The ninth section
of the act of July 4, 1836, requires, That before any application for a
patent can be considered by the commissioner as aforesaid, the applicant
shall pay into the treasury of the United States, or into the patent office,
or into any of the deposit banks to the credit of the treasury, if he be a
citizen of the United States, or an alien, and shall have been resident in
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the United States for one year next preceding, and shall have made oath of
his intention to become a citizen thereof, the sum of thirty dollars; if a
subject of the king of Great Britain, the sum of five hundred dollars; and
all other persons the sum of three hundred dollars, for which payment
duplicate receipts shall be taken, one of which to be filed in the office of
the treasurer. And the moneys received into the treasury under this act,
shall constitute a fund for the payment of the salaries of the officers and
clerks herein provided for, and all other expenses of the patent office, and
to be called the patent fund.
48. When an applicant withdraws his application before the issuing of
the patent, he is entitled to receive back twenty dollars of the sum he may
have paid into the treasury. Act of July 4, 1836, sect. 7. And the act of
March 3, 1837, section 12, enacts, That whenever the application of any
foreigner for a patent shall be rejected and withdrawn for want of novelty
in the invention, pursuant to the seventh, section of the act to which this
is additional, the certificate thereof of the commissioner shall be a
sufficient warrant to the treasurer to pay back to such applicant two-thirds
of the duty he shall have paid into the treasury on account of such
application. When money has been paid by mistake, as for foes accruing at
the patent office, it must, by the direction of the act of August 29, 1842,
section 1, be refunded.
Sec. 8. Penalty for use of patentee's marks.
49. The act of August 29, 1842, s. 5, declares, That if any person or
persons shall paint or print, or mould, cast, carve, or engrave, or stamp,
upon any thing made, used, or sold, by him, for the sole making or selling
which he hath not or shall not have obtained letters-patent, the name or any
imitation of the namer of any other person who hath or shall have obtained
letters-patent for the sole making and vending of such thing, without
consent of such patentee or his assigns or legal representatives; or if any
person, upon any such thing not having been purchased from the patentee, or
some person who purchased it from or under such patentee, or not having the
license or consent of such patentee, or his assigns or legal
representatives, shall write paint, print, mould, carve, engrave, stamp, or
otherwise make or affix the word "patent," or the words "letters-patent," or
the word "patentee," or any word or words of like kind, meaning, or import,
with the view or intent of imitating or counterfeiting the stamp, mark, or
other device of the patentee, or shall affix the same or any word, stamp, or
device, of like import, on any unpatented article, for the purpose of
deceiving the public, he, she, or they, so offending, shall be liable for
such offence, to a penalty of not less than one hundred dollars, with costs,
to be recovered by action in any of the circuit courts of the United States,
or in any of the district courts of the United States, having the powers and
jurisdiction of a circuit court; one-half of which penalty, as recovered,
shall be paid to the patent fund, and the other half to any person or
persons who shall sue for the same.
Sec. 9. Courts having jurisdiction in patent cases.
50. It is enacted by the 17th section of the act of July 4, 1836, That
all actions, suits, controversies, and cases arising under any law of the
United States, granting or confirming to inventors the exclusive right to
their inventions or. discoveries, shall be originally cognizable, as well in
equity as at law, by the circuit courts of the United States, or any
district court having the powers and jurisdiction of a circuit court which
courts shall have power, upon bill in equity filed by any party aggrieved,
in any such case, to grant injunctions, according to the course and
principles of courts of equity, to prevent the violation of the rights of
any inventor as secured to him by any law of the United States on such terms
and conditions as said courts may deem reasonable: Provided, however, That
from all judgments and decrees, from. any, such court rendered in the
premises, a writ of error or appeal, as the case may require, shall lie to
the supreme court of the United States, in the same manner and under the
same circumstances as is now Provided by law in other judgments and decree,
of circuit courts, and in all other case's in which the court shall deem, it
reasonable to allow the same.
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Sec. 10. Actions for violation of patent rights.
51. The act of July 4, 1836, section 14, provides, That whenever in any
action for damages for making, using, or selling the thing whereof the
exclusive right is secured by any patent heretofore granted, or by any
patent which may hereafter be granted, a verdict shall be rendered for the
plaintiff in such action, it shall be in the power of the court to render
judgment for any sum above the amount found by such verdict as the actual
damages sustained by the plaintiff, not exceeding three times the amount
thereof, according to the circumstances of the case, with costs; and such
damages may be recovered by action on the case, in any court of competent
jurisdiction, to be brought in the name or names of the person or persons
interested, whether as patentee, assignees, or as grantees of the exclusive
right within and throughout a specified part of the United States.
52.-Sect. 15. That the defendant in any such action shall be permitted
to plead the general issue, and to give this act, and any special matter in
evidence, of which notice in writing may have been given to the plaintiff or
his attorney, thirty days before trial, tending to prove that the
description and specification filed by plaintiff does not contain the whole
truth relative to his invention or discovery, or that it contains more than
is necessary to produce the described effect; which concealment or addition
shall fully appear to have, been made for the purpose of deceiving the
public, or that the patentee was not, the original and first inventor or
discoverer of the thing patented, or of a substantial and material art
thereof claimed as new, or that it had teen described in some public work
anterior to the supposed discovery thereof by the patentee, or had been in
public use, or on sale with the consent and allowance of the patentee before
his application for a patent, or that, he had surreptitiously or unjustly
obtained the patent for that which was in fact invented or discovered by
another, who was using reasonable diligence in adapting and perfecting the
same; or, that the patentee if an alien at the time the patent was granted,
had failed and neglected for the space of eighteen months from the date of
the patent, to put and continue on sale to the public, on reasonable terms,
the invention or discovery for which the patent issued; in either of which
cases judgment shall be rendered for the defendant, with costs. And whenever
the defendant relies in his defence on the fact of a previous invention,
knowledge, or use of the thing patented, be shall state, in his notice of
special matter, the names and places of residence of those whom he intends
to prove to have possessed a prior knowledge of the thing and where the same
had been used: Provided, however, that whenever it shall satisfactorily
appear that the patentee, at the time of making his application for the
patent, believed himself to be the first inventor or discoverer of the thing
patented the same shall not be held to be void on account of the invention
or discovery or any part thereof having been before known or used in any
foreign country, it not appearing that the same or any substantial part
thereof, had before been patented or described in any printed publication.
And provided, also, that whenever the plaintiff shall fail to sustain his
action on the ground that in his specification of claim is embraced more
than that of which he was the first inventor, if it shall appear that the
defendant had used or violated any part of the invention justly and truly
specified and claimed as new, it shall be in the power of the court to
adjudge and award as to costs as may appear to be just and equitable.
53. This last section has been modified by the act of March 3, 1837,
which enacts as follows: Section 9, That anything in the fifteenth section
of the act to which this is additional to the contrary notwithstanding That,
whenever by mistake, accident, or inadvertence, and without any willful
default or intent to defraud or mislead the public, any patentee shall have
in his specification claimed to be the original and first inventor or
discoverer of any material or substantial part of the thing patented, of
which he was not the first and original inventor, and shall have no legal or
just right to claim the same in every such, case the patent shall be deemed
good and valid for so much of the invention or discovery as shall be truly
and bona fide his own: Provided, it shall be a material and substantial part
of the thing patented, and be definitely distinguishable from the other
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parts so claimed without right as aforesaid. And every such patentee, his
executors, administrators and assigns, whether of the whole or of a
sectional interest therein, shall be entitled to maintain a suit at law or
in equity on such patent for any infringement of such part of the invention
or, discovery as shall be bona fide his own as aforesaid, notwithstanding
the specification may embrace more than he shall have any legal right to
claim. But, in every such case in which a judgment or verdict shall be
rendered for the plaintiff he shall not be entitled to recover costs against
the defendant, unless he shall have entered at the patent office, prior to
the commencement of the suit, a disclaimer of all that part of the thing
patented which were so claimed without right: Provided, however, That no
person bringing any such suit shall be entitled to the benefits of the
provisions contained in this section, who shall have unreasonably neglected
or delayed to enter at the patent office a disclaimer as aforesaid. See Bac.
Ab. Monopoly Id. Prerogative, F 4; Phill. on Pat.; Fessend. on Pat.; Carpm.
on Pat.; Hand on Pat.; Webst. on Pat; Coll. on Pat.; Gods. on Pat.; Holr. on
Pat.; Smith on Pat.; Drewry's Patent Law Abandonment Act; Davies' Collection
of Cases on the Law of Patents; Rankin's Analysis of the Law of Patents.
Among the French writers are Perpigna on Patents; written in English'; and
the Manuel of the same author, in French; and the works of Renouard, Dalloz,
Molard, and Regnault. See the various Digests and particularly Peters'
Digest, h.t.
PATENT FRENCH. The following points in relation to the patent laws of France
will be found useful to those who have invented valuable machinery, and who
are desirous of availing themselves of the patent laws of that country:
2.-Sec. 1. To whom patents are granted. All persons may obtain
patents in this country, whether they are men or women, adults or infants,
Frenchmen or foreigners, and in general all persons who fulfill the
conditions required by the law in order to obtain patents.
3. It is not requisite that the applicant should be present, but the
application must be made in his name.
4.-Sec. 2. The different kinds of patents. There are three principal
kinds of patents. 1. Patents for inventions, (brevets d' invention.) 2.
Patents for improvements, (brevets de perfectionnement.) 3. Patents for
importations, (brevets d'importations.) But as patents may be taken for a
combination of the above, there may be added, by such combination, four
others, namely; 5. Patents for invention and improvements, (brevets
d'invention et de perfectionnemen t.) 6. Patents for invention and
importation, (brevets d'invention et d'importation.) 7. Patents for
importation and improvement, (brevets d'importation et de perfectionnement.)
8. Patents for importation, invention and improvement (brevets d'invention,
et perfectionnement et d' importation.)
5. The forms prescribed to obtain these several kinds of patents are
exactly, the same, the only difference consists in the declaration of the
applicant, which must be in conformity with the kind of patent he desires to
obtain.
6. The applicant himself has the right to fix the number of years for,
which he desires to have his patent, when he applies, to have his request
registered at the prefecture. He may have it for five, ten, or fifteen
years. And this period he has a right to change until the patent has been
signed. But with regard to patents for importations, the duration of the
patent cannot extend beyond the period for which there is a patent in the
country, from which the importation has been made.
7. Patents, other than for importation, may be extended as to time.
There are two species of prolongation; the first, within fifteen years; the
second, beyond fifteen years.
8.-Sec. 3. Cost of patents. The tax, as it is called, which must be
paid in order to obtain a patent, varies according to the duration of the
patent. This tax may be paid in cash or by installments. When paid in cash,
it is as follows: 1. For, five years, 300 francs, about 56 dollars and 40
cents. 2. For ten years, 800 francs, about 94 dollars. 3. For fifteen years,
1500 francs, about 282 dollars; besides some office expenses, amounting to
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from ten to fifteen dollars.
9.-Sec. 4. Foreign patents. The patentee in France cannot obtain a
patent in a foreign country, without losing his rights in France; but this
provision is easily eluded by another person taking out the patent in the
foreign country, when patents for importations are granted. Perpigna, Manuel
des Inventeurs, &o., c. 3, 5, p. 90.
PATENT LAWS OF GREAT BRITAIN AND IRELAND. The patent laws of Great Britain
and Ireland will be briefly considered by taking a view of the persons to
whom patents will be granted; the different kinds of patents; the time for
which they are granted; and the expenses attending them.
2.-Sec. 1. To whom patents are granted. Both foreigners and subjects
may obtain letters-patent; but inasmuch as the applicant must accompany his
petition by a declaration made before a master in chancery, or a master
extraordinary in chancery, that he has made such an invention; that he is
the true and first inventor thereof; or that it is new in the kingdom,
according to the special circumstances of the case, the applicant must be
present in Great Britain.
3.-Sec. 2 The different kinds of patents. This will be considered by
taking a view, first, of the object of a patent, and secondly, the territory
over which a patent extends.
4.-1. The thing patented must be, 1. A discovery or invention made by
the applicant himself, in the United Kingdom. 2. The introduction or
importation of an invention known abroad, and in this case, the introducer
is the true and first inventor, within the realm. 3. Though not absolutely
the true and first inventor, by reason of some one else having made the same
invention and kept it secret, yet the invention must have been made public
by the applicant, and as the first publisher, the applicant will be entitled
to letters-patent. Novelty and utility are essential conditions of the
grant, but it is of no consequence whether the discovery was known or not,
in a country foreign to the United Kingdom. Webst. on Pat. 11 and 70, note
w. A recent act of parliament, passed July 1, 1852, (15 & 16 Viet. cap. 83,)
amended the English patent' system in several important particulars. The
cardinal features of the new system are: 1, protection from the day of the
application 2, one patent for the United Kingdom; 3, moderate cost and
periodical payment; 4, printing and publishing of specifications; 5, one
office of patents and specifications. Webster's New Patent Law, p. 41. By
the 18th sec. of said act, letters patent are sealed with the great seal of
the United Kingdom, and extend to the whole of the United Kingdom of Great
Britain and Ireland, the Channel Islands, and the Isle of man; also, to the
colonies or plantations, or such of them as the applicant may designate in
his petition for the letters patent and the law officer of the crown shall
insert, in his warrant for the sealing of the patent. The patent may bear
date as of the, day of the application, or of the sealing, or of any
intermediate day. The patent is granted for fourteen years, subject however
to the condition that it shall be void at the expiration of three years and
of seven years respectively from the date thereof, unless before the
expiration of the said three years and seven years, stamps of the value of
X50 and X100 respectively, be affixed to the letters patent. The cost of
obtaining letters patent is, in the first instance, X20 if the patent is
unopposed; if opposed, there are additional fees amounting to nearly X5.
By sec. 26, letters patent obtained in the United Kingdom for patented
foreign inventions are not to continue in force after the expiration of the
foreign patent.
PATENT, PRUSSIAN. This subject will be considered by taking a view of the
persons who may obtain patents; the nature of the patent; and the duration
of the right.
2.-Sec. 1, Of the persons who may obtain patents. Prussian citizens
or subjects are alone entitled to a patent. Foreigners can not obtain one.
3.-Sec. 2. Nature of the patents. Patents are granted in Prussia for
an invention when the thing has been discovered or invented by the
applicant. For an improvement, when considerable improvement has been made
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to a thing before known. And for importation, when the thing has been
brought from a foreign country and put in use in the kingdom. Patents may
extend over the whole country or only over a particular part.
4.-Sec. 3. Duration of patents. The patent may at the choice of the
applicant, be for any period not less than six months nor more than fifteen
years.
PATENT, ROMAN. The Roman patents will be considered by taking a view of the
persons to whom they may be granted; the different kinds of patents; the
cost of a patent; and the obligations of the patentee.
2.-Sec. 1. To whom patents are granted. Every person, whether a
citizen of the estates of the pope or foreigner, man or woman, adult or
infant, may obtain a patent for an invention, for an improvement, or for
importation, by fulfilling the conditions prescribed in order to obtain a
grant of such titles. Persons who have received a patent from the Roman
government may, afterwards, without any compromise of their rights or
privileges, receive a patent in a foreign country.
3. The different kinds of patents. In the Roman estates there are
granted patents for invention, for improvements, and for importations.
4.-1st. Patents for inventions are granted for, 1. A new kind of
important culture. 2. A new and useful art, before unknown. 3. A new and
useful process of culture or of manufacture. 4. A new natural production. 5.
A new application of a means already, known.
5.-2d. Patents for improvements may be granted for any useful
improvement made to inventions already known and used in the Roman states.
6.-3d, Patents for importations are granted in two cases, namely: 1.
For the introduction of inventions already patented in a foreign country,
and the privilege of which patent yet continues. 2. For the introduction of
an invention known and freely used in a foreign country, but not yet used or
known in the Roman states.
7.-3. Cost of a patent. The cost of a patent is fixed at a certain
sum per annum, without regard to the length of time for which it may have
been granted. It varies in relation to patents for inventions and
importation. It is ten Roman crowns per annum for a patent for invention and
improvement, and of fifteen crowns a year for a patent for importation.
8.-Sec. 4. Obligation of the patentee. He is required to bring into
[?] his invention within one year after the grant of the patent, and not to
suspend the supply for the space of one year during the time the privilege
shall last.
9. He is required to pay one half of the tax or expense of his patent
on receiving his patent, and the other half during the first month of the
second portion of its, duration.
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PATRIMONIUM, civil law. That which is capable, of being inherited.
2. Things capable of being possessed by a single person exclusively of
all others, are, in the Roman or civil law, said to be in patrimonio; when
incapable of being so possessed they are extra-patrimonium.
3. In general, things may be inherited, but there are some which are
said to be extra patrimonium, or which are not in commerce. These are such
as are common, as the light of heaven, the air, the sea, and the like.
Things public, as rivers, harbors, roads, creeks, ports, arms of the sea,
the, seashore, highways, bridges, and the like. Things which belong to
cities and municipal corporations, as public squares, streets, market
houses, and the like. See, 1 Bouv. Inst. n. 421 to 446.
PATRIMONY. Patrimony is sometimes understood to mean all kinds of property
but its more limited signification, includes only such estate, as has
descended in the same family and in a still more confined sense, it is only
that which has descended or been devised in a direct line from the father,
and by extension, from the mother, or other ancestor.
2. By patrimony, patrimonium, is also understood the father's duty to
take care of his children. Sw. pt. 3, Sec. 18, n. 31, p. 235.
PATRINUS. A godfather.
PATRON, eccl. law. He who has the disposition and gift of an ecclesiastical
benefice. In the Roman law it signified the former master of a freedman.
Dig. 2, 4, 8, 1.
PATRONAGE. The right of appointing to office; as the patronage of the
president of the United States, if abused, may endanger the liberties of the
people.
2. In the ecclesiastical law, it signifies the right of presentation to
a church or ecclesiastical benefice. 2 Bl. Com. 21.
PATRONUS, Roman civil law. This word is a modification of the, Latin word
pater, father; a denomination applied by Romulus to the first, senators of
Rome, and which they always afterwards bore. Romulus at first appointed a
hundred of them. Seven years afterwards, in consequence of the association
of Tatius to the Romans, a hundred more were appointed, chosen from the
Sabines. Tarquinius Priscus increased the number to three hundred. Those
appointed by Romulus and Tatius were called patres majorum gentium and the
others were called patres minorum gentium. These and their descendants
constituted, the nobility of Rome. The rest of the people were called
lebeians, every one of whom was obliged to choose one of these fathers as
his patron. The relation thus constituted involved important consequences.
The plebeian, who was called (cliens) a client, was obliged to furnish the
means of maintenance to his chosen patron; to furnish a portion for his
patron's daughters; to ransom him and his sons, if captured by an enemy, and
pay all sums recovered against him by judgment, of the 'courts. The patron,
on the other hand, was, obliged to watch over the interests of his client,
whether present or absent to protect his person and property, and especially
to defend him in all, actions brought against him for any cause. Neither
could accuse or bear testimony against the other, or give contrary votes,
&c. The contract was of a sacred nature,; the violation of it was a sort of
treason, and punishable as such. According to Cicero, (De Repub. II. 9,)
this relation formed an integral part of the governmental system, Et habutit
plebem in clientelas principum descriptum, which he affirms was eminently
useful. Blackstone traces the system of vassalage to this. ancient relation
of patron and client. It was, in fact, of the same nature as the feudal
institutions of the middle ages, designed to maintain order in a rising
state by a combination of the opposing interests of the aristocracy and of
the common people, upon the principle of reciprocal bonds for mutual
interests, Dumazeau, Barreau Romain, Sec. III. Ultimately, by force of
radical changes in the institution, the word patronus came to signify
nothing more than an advocate. Id. IV
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PATRUELIS, civil law. A cousin german by the father's side; the son or
daughter of a father's brother. Dig. 38i 10, 1.
PATRUUS, civil law. An uncle by the father's side, a father's brother. Dig.
38, 10, 10, Patruus magnus, is a grandfather's brother, grand uncle. Patruus
major, is a great-grandfather's brother. Patruus maximus, is a, great-
grandfather's father's brother.
PAUPER. One so poor that he must be supported at the public expense.
2. The statutes of the several states make ample provisions for the
support of the poor. It is not within the plan of this work even to give an
abstract of such extensive legislation. Vide 16 Vin. Ab. 259; Botts on the
Poor Laws; Woodf. Landl. & Ten. 901.
PAVIAGE. Contribution or tax. for paving the streets or highways.
PAWN. A pledge. Vide Pledge.
PAWN-BROKER. One who is lawfully authorized to lend money, and actually
lends it, usually in small sums, upon pawn or pledge.
PAWNEE. He who receives a pawn or pledge.
2. The rights of the pawnee are to have the exclusive possession of the
pawn; to use it, when it is for the advantage of the pawner, but, in such
case, when he makes a profit out of it, he must account for the same. 1 Car.
Law Rep. 8 7; 2 Murph.
3. The pawnee is bound to take reasonable care, of the pledge, and to
return it to the, pawnor, when the obligation of the latter has been
performed.
4. The pawnee has two remedies to enforce his claim; the first, to sell
the pawn, after having given due notice; and, secondly, by action. See. 1
Bouv. Inst. n. 1046, 1050.
PAWNOR. One who, being liable to an engagement, gives to the person to whom
he is liable, a thing to be held as a security for the payment of his debt
or the fulfillment of his liability.
2. The rights of the pawnor are to redeem the pledge, at any time
before it is sold.
3. His obligations are to warrant the title of the pledge, and to
redeem it at the time agreed upon. See 1 Bouv. Inst. n. 1045.
PAYEE. The person in whose favor a bill of exchange is made payable. Vide
Bills of Exchange.
PAYMENT, contracts. That which is given to execute what has been promised;
or it is the fulfillment of a promise. Solvere dicimus cum quis fecit, quod
facere promisit. But though this is the general acceptation of the word,
yet by payment is understood, every way by which the creditor is satisfied
or ought to be, and the debtor, liberated for example, an accord and
satisfaction will operate as a payment. If I owe you a sum of money, for the
security of which I give you a mortgage, and afterwards you consent to
receive in payment a tract of land, from the moment the sale is complete,
the first obligation, with all its accessories, is extinct, although you
should be afterwards evicted of the property sold. 7 Toull. n. 46 2 Mart.
Lo. Rep. N. S. 144; S. C. 2 Harr. Cond. Lo. R. 621, 624.
2. This subject will be considered by taking a separate view of the
person by whom the payment may be made; to whom it may be made; when and
where it ought to be made; how it ought to be made; the effect of the
payment.
3.-1. The payment may be made by the real debtor and other persons
from whom the creditor has a right to demand it; an agent may make payment
for his principal; and any mode of payment by the agent, accepted and
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received as such by the creditor, as an absolete payment will have the
effect to discharge the principal, whether known or unknown, and whether it
be in the usual course of business or not. If, for example, a factor or
other agent should be employed to purchase goods for his principal, or
should be entrusted, with money to be paid for him, and, instead of
receiving the money, the creditor or seller should take the note of the
factor or agent; payable at a future day, as an absolute payment, the
principal would be discharged from the debt. 3 Chit. Com. Law, 204; 1 B. &
Ald. 14; 6 B. & C. 160; 7 B. & C. 17. When such note has been, received
conditionally and not as an absolute payment, it would not have the effect
of a payment by the principal; and whether so received or not is a fact to
be decided by the jury. 1 Cowen, R, 259, 383; 9 John. R:, 310; 6 Cowen, R.
181; 7 John. R. 311; 15 John. R. 276; 3 Wend. R. 83; 6 Wend. R. 475; 10
Wend. R. 271; 5 John., R. 68; 1 Liverm. Ag. 207.
4. Payment may also be made by a third person a stranger to the
contract.
5. In the payment of mortgages, it is a20rule, that the personal estate
shall be applied to discharge them when made by the testator or intestate
himself, to secure the payment of a debt due by him, because the personal
estate was benefited by the money borrowed; and it makes no difference
whether the mortgaged lands have been devised, or come to the heir by
descent. 2 Cruise, 1 Dig. 147. The testator may, however, exempt the
personal estate from the payment, and substitute the real in its place. But
when the mortgage was not given by the deceased, but be acquired the real
estate subject to it, it never was his debt, and therefore his personal
estate is not bound to pay the mortgage debt, but it must be paid by the
real estate. 2 Cruise, Dig. 164-8; 3 John. Chan. R. 252; 2 P. Wms. 664, n.
1; 2 Bro. C. C. 57; 2 Bro. C. C. 101, 152; 5 Ves. jr. R. 534; 14 Ves. 417.
6.-2. It must be made by the creditor himself, or his assigns, if
known, or some person authorized by him, either expressly or by implication;
as to his factor; Cowp. 251: to his broker, 1 Maul. & Selw. 576; 4 Id. 566;
4 Taunt. 242; 1 Stark. Ca. 238.
7. In the case of partners and other joint creditors, or joint
executors or administrators, payment to one is generally a valid payment.
When an infant is a creditor, payment must be made to his guardian. A
payment may be good when made to a person who had no authority to receive
it, if the creditor shall afterwards ratify it. Poth. Obl. n. 528.
8.-3. Time and place of payment: first, as to the time. When the
contract is, that payment shall be made at a future time, it is clear that
nothing can be demanded until after it has elapsed, or until any other
condition to which the payment is subject, has been fulfilled; and in a case
where the goods had been sold at six or nine months, the debtor had the
option as to those two terms. 5 Taunt, 338. When no time of payment is
mentioned in the agreement, the money is payable immediately. 1 Pet. 455; 4
Rand. 346.
9. Secondly, the payment must be made at the place agreed upon in the
contract; but in the absence of such agreement, it must be made agreeably to
the presumed intention of the parties, which, among other things, may be
ascertained by the nature of the thing to be paid or delivered, or by the
custom in such cases.
10.-4. How the payment ought to be made. To make a valid payment, so
as to compel the receiver to take it, the whole amount due must be paid;
Poth. Obl. n. 499, or n. 534, French edition; when a part is accepted, it is
a payment pro tanto. The payment must be made in the thing agreed upon; but
when it ought to be made in money, it must be made in the lawful coin of the
country, or in bank notes which are of the value they are represented to be.
A payment made in bills of an insolvent bank, though both parties may be
ignorant of its insolvency, it has been held, did not discharge the debt; 11
Vern. 676; 6 Hill, 340; but see 1 W. & S. 92; 8 Yerg. 175; and a payment in
counterfeit bank notes is a nullity. 2 Hawks, 326; 3 Hawks, 568, 6 Hill,
840. In general, the payment of a part of a debt, after it becomes due, will
not discharge the whole, although there may be an agreement by the debtor
that it should have that effect, because there is no consideration for such
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agreement. But see 3 Kelly's R. 210, contra. A payment of a part, before it
is due, will discharge the whole, when so agreed.
11.-5. The payment, when properly made, discharges the debtor from his
obligation. Sometimes a payment extinguishes several obligations; this
happens when the thing given to discharge an obligation was the same which
is the object of another obligation. Poth. Obl. 552.
12. A single payment may discharge several debts; as, for example if
Peter be indebted to Paul one thousand dollars, and Paul being indebted to
James, Paul give an order to Peter to pay Tames this money; the payment made
by Peter to James discharges both the obligations due by Peter to Paul, and
by Paul to James. Poth. Ob. n. 553. This rule, that a payment made in order
to acquit or discharge an obligation, extinguishes the other obligations
which have the same object, takes place also when there are several debtors
as regards the whole of them. If, for example, Peter trust Paul on the
credit of James, a payment by Paul discharges both himself and James. Poth.
Obl. n. 554.
13. But in case money or other things have been delivered to a person
who was supposed to be entitles to them as a creditor, when he was not, this
is not a payment, and the whole, if nothing was due, or if the debt was less
than the amount paid, the surplus, may be recovered in action for money bad
and received. Vide, generally, Bouv. Inst. Index, h.t.; Com. Dig. 473; 8
Com. Dig. 607; 16 Vin 6; 1 Vern. by Raith. 3, 150 n. Yelv. 11 a; 1 Salk. 22;
15 East, 12; 8 East, R. 111; 2 Ves. jr. 11; Phil. Ev. Index, b, t,; Stark.
Ev. h.t.; Louis. Code, art. 2129; Ayl. Pand. 565; 1 Sell. Pr. 277; Dane's
Ab. Index, h.t.; Toull. lib. 3, tit. 3, c. 5; Pardes. part 2, tit. 2, c. 1
Merl. Repert. h.t.; Chit. Contr. Index, h.t.; 3 Eng. C. L. Rep. 130. As to
what transfer will amount to an assignment or a payment and extinguishment
of a claim, see 6 John. Ch. R. 395; Id. 425; 2 Ves. jr. 261 18 Ves. jr. 384;
1 N. H. Rep. 167; 1 N. H. Rep. 252; 2 N. H. Rep. 300; 3 John. Ch. R. 53.
PAYMENT, pleadings. The name of a plea by which the defendant alleges that
he has paid the debt claimed in the declaration; this plea must conclude to
the country. 4 Call, 371; Minor, 137. Vide Solvit ad them; Solvit post diem.
PAYS. The country. Trial per pays, is a trial by the country; that is, by
jury. Vide Pais.
PAX REGIS, Eng. law. The king's peace. In ancient times there were certain
limits which were known by this name. The pax regis, or the verge of the
court, as it was afterwards called, extended from the palace gate to the
distance of three miles, three furlongs, three acres, nine feet, nine palms
and nine barleycorns. Crabb's C. L. 41.
PEACE. The tranquillity enjoyed by a political society, internally, by the
good order which reigns among its members, and externally, by the good
understanding it has with all other nations. Applied to the internal
regulations of a nation, peace imports, in a technical sense, not merely a
state of repose and security, as opposed to one of violence and warfare, but
likewise a state of public order and decorum. Ham. N. P. 139; 12 Mod. 566.
Vide, generally, Bac. Ab. Prerogative, D 4; Hale, Hist. P. C. 160; 3 Taunt.
R. 14; 1 B. & A. 227; Peake, R. 89; 1 Esp. R. 294; Harr. Dig. Officer, V 4;
2 Benth. Ev. 319, note. Vide Good behaviour; Surety of the peace.
PENETRATION, crimes. The act of inserting the penis into the female organs
of generation. 9 Car. & Pa 118; S. C. 38 E. C. L. R. 63. See 8 Car. & Payne,
614; 34 E. C. L. R. 562; 5 C. & P. 321; S. C. 24 E, C. L. R. 339; 9 C. & P.
31 Id. 752; 38 E. C. L. R. 320. But in order to commit the crime of rape, it
is requisite that the penetration should be such as to rupture the hymen. 5
C. & P. 321.
2. This has been denied to be sufficient to constitute a rape without
emission. (q.v.) Bee, on this subject, 12 Co. 37; Hawk. bk 1, c. 41, s. 3; 1
Hale, P. C. 628; 1 East, P. C. 437, 8; Russ & Ry. C. C. 519; 6 C. & P. 351;
5 C. & P. 297, 321; S. C. 24 E. C. L. R. 339; 1 Chit. Med. Jur. 386 to 395;
1 Virg. Cas. 307; 4 Mood. Cr. Cas. 142, 337; 4 Car. & P. 249; 1 Par. & Fonb.
433; 2 Mood. & M. C. N. P. 122; 1 Russ. C. & M 560; 1 East, P. C. 437.
PENITENTIARY. A prison for the punishment of convicts.
2. There are two systems of penitentiaries in the United States, each
of which is claimed to be the best by its partisans: the Pennsylvania system
and the New York system. By the former, convicts are lodged in separate,
well lighted, and well ventilated cells, where they are required to work,
during stated hours. During the whole time of their confinement, they are
never permitted to see or speak with each other. Their usual employments are
shoemaking, weaving, winding yarn, picking wool, and such like business. The
only punishments to which convicts are subject, are the privation of food
for short periods, and confinement without labor in dark, but well aired
cells; this discipline has been found sufficient to keep perfect order; the
whip and all other corporal punishments are prohibited. The advantages of
the plan are numerous. Men cannot long remain in solitude without labor
convicts, when deprived of it, ask it as a favor, and in order to retain it,
use, generally, their best exertions to do their work well; being entirely
secluded, they are of course unknown to their fellow prisoners, and can form
no combination to escape while in prison, or associations to prey upon
society when they are out; being treated with kindness, and afforded books
for their instruction and amusement, they become satisfied that society does
not make war upon them, and, more disposed to return to it, which they are
not prevented from doing by the exposure of their fellow prisoners, when in
a strange place; the labor of the convicts tends greatly to defray the
expenses of the prison. The disadvantages which were anticipated have been
found, to be groundless.; Among these were, that the prisoners would be
unhealthy; experience has proved the contrary; that they would become
insane, this has also been found to be otherwise; that solitude is
incompatible with the performance of business; that obedience to the
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discipline of the prison could not be enforced. These and all other
objections to this system are, by its friends, believed to be without force.
3. The New York system, adopted at Auburn, which was probably copied
from the penitentiary at Ghent, in the Netherlands, called La Maison de
Force, is founded on the system of isolation and separation, as well as that
of Pennsylvania, but with this difference, that in the former the prisoners
are confined to their separate cells during the night only; during the
working hours in the day time they labor together in work shops appropriated
to their use. They cat their meals together, but in such a manner as not to
be able to speak with each other. Silence is also imposed upon them at their
labor. They perform the labor of carpenters, blacksmiths, weavers,
shoemakers, tailors, coopers, gardeners, wood sawyers, &c. The discipline of
the prison is enforced by stripes, inflicted by the assistant keepers, on
the backs of the prisoners, though this punishment is rarely exercised. The
advantages of this plan are, that the convicts are in solitary confinement
during the night; that their labor, by being joint, is more productive;
that, inasmuch as a clergyman is employed to preach to the prisoners, the
system affords an, opportunity for mental and moral improvements. Among the
objections made to it are, that the prisoners have opportunities of
communicating with each other, and of forming plans of escape, and when they
are out of prison, of associating together in consequence of their previous
acquaintance, to the detriment of those who wish to return to virtue, and to
the danger of the public; that the discipline is degrading, and that it
engenders bitter resentment in the mind of the convict. Vide, generally, on
the subject of penitentiaries, Report of the Commissioners (Messrs. King,
Shaler, and Wharton,) on the Penal Code of Pennsylvania; De Beaumont and De
Toqueville, on the Penitentiary System of the United States; Mease on the
Penitentiary System of Pennsylvania; Carey on ditto; Reports of the Boston
Prison Discipline Society; Livingston's excellent Introductory Report to the
Code of Reform and Prison Discipline, prepared for the state of Louisiana;
Encycl. Americ. art. Prison Discipline; De. I'Etat Actuel des Prisons en
France, par L. M. More au Christophe; Dalloz, Dict. mot Peine, Sec. 1, n. 3,
and Supplem. mots Prisons et Bagnes.
PENNSYLVANIA. The name of one of the original states of the United States of
America. Pennsylvania was occupied by planters of various nations, Dutch
Swedes, English, and others; but obtained no separate name until the year
1681, when Charles II. granted a charter to William Penn, by which he became
its proprietary, saving, however, allegiance to the crown, which retained
the sovereignty of the country. This charter authorized the proprietary, his
heirs and successors, by and with the assent of the freemen of the country,
or their deputies assembled for the purpose, to make laws. Their laws were
required to be consonant to reason, and not repugnant or contrary, but as
near as conveniently could be to the laws and statutes of England.
Pennsylvania was governed by this charter till the period of the Revolution.
2. The constitution of the state was adopted on the second day of
September, 1790, and amended by a convention selected by the people, on the
twenty-second day of February, 1838. The powers of the government are
divided into three distinct branches: the legislative, the executive and the
judiciary.
3.-1st. The legislative power is vested in a general assembly, which
consists of a senate and house of representatives.
4.-1. The senate will be considered with reference to the
qualification of the electors; the qualification of the members; the length
of time for which they are elected; and the time of their election. 1. In
elections by the citizens, every white freeman of the age of twenty-one
years having resided in this state one year, and in the election district
where he offers to vote ten days immediately preceding such election, and
within two years paid a state or county tax, which shall have been assessed
at least ten days before the election, shall enjoy the rights of an elector.
But a citizen of the United States who had previously been a qualified voter
of this state and removed therefrom and returned, and who shall have resided
in the election district and paid taxes as aforesaid, shall be entitled to
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vote after residing in the state six months: Provided, that white freemen,
citizens of the United States, between the ages of twenty-one and twenty-two
years, and having resided in the state one year, and in the election
district ten days as aforesaid, shall be entitled to vote although they
shall not have paid taxes. Art. 3, s. 1. 2. No person shall be a senator who
shall not have attained the age of twenty-five years, and have been a
citizen and inhabitant of the state four years next before his election, and
the last year thereof an inhabitant of the district for which he shall be
chosen, unless he shall have been absent on the public business of the
United States or of this state; and no person elected as aforesaid, shall
hold the said office after he shall have removed from such district. Art. 1,
s. 8. 3. The number of senators shall never be less than one-fourth, nor
greater than one-third of the number of representatives. Art. 1, s. 6. 4.
The senators hold their office for three years.
5. Their election takes place on the second Tuesday of October, one-
third of the senate each year.
6.-2. The house of representatives will be treated of in the same
manner which has been observed in considering the senate. 1. The electors
are qualified in the same manner as the electors of the senate. 2. No person
shall be a representative who shall Dot have attained the age of twenty-one
years, and have been a citizen and inhabitant of the state three years next
preceding his election, and the last year thereof an inhabitant of the
district in and for which he shall be chosen a representative, unless be
shall have been absent on the public business of the United States or of
this state. Art. 1, s. 3. 3. The number of representatives shall never be
less than sixty, nor greater than one hundred. Art. 1, s. 4. 4. They are
elected yearly. 5. Their election is on the second Tuesday of October,
yearly.
6.-2d. The supreme executive power of this commonwealth is vested in
a governor. 1. He is elected by the electors of the legislature. 2. He must
be at least thirty years of age, and have been a citizen and an inhabitant
of the state seven years next before his election, unless he shall have been
absent on the public business of the United States or of this state. Art. 2,
s. 4. 3. The governor shall hold his office during three years from the
third Tuesday of January next ensuing his election, and shall not be capable
of holding it longer than six in any term of nine years. Art. 2, s. 3. 4.
His principal duties are enumerated in the second article of the
constitution, as follows: The governor shall at stated times receive for his
services a compensation which shall be neither increased or diminished
during the period for which he shall have been elected. He shall be
commander-in-chief of the army and navy of this commonwealth, and of the
militia, except when they shall be called into the actual service of the
United States. He shall appoint a secretary of the commonwealth during
pleasure; and he shall nominate, and by and with the advice and consent of
the senate appoint, all judicial officers of courts of record, unless
otherwise provided for in this constitution. He shall have power to fill all
vacancies that may happen in such judicial offices during the recess of the
senate, by granting commissions which shall expire at the end of their next
session: Provided, that in acting on executive nominations the senate shall
sit with open doors, and in confirming or rejecting the nominations of the
governor, the vote shall be taken by yeas and nays. He shall have power to
remit fines and forfeitures, and grant reprieves and pardons, except in
cases of impeachment. He may require information in writing from the
officers in the executive department, upon any subject relating to the
duties of their respective offices. He shall, from time to time, give to the
general assembly information of the state of the commonwealth, and recommend
to their consideration such measures as he shall judge expedient. He may, on
extraordinary occasions, convene the general assembly; and, in case of
disagreement between the two houses with respect to the time of adjournment,
adjourn them to such time as he shall think proper, not exceeding four
months. He shall take care that the laws be faithfully executed. In case of
the death or resignation of the governor, or of his removal from office, the
speaker of the senate shall exercise the office of governor until another
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governor shall be duly qualified; but in such case another governor shall be
chosen at the next annual election of representatives, unless such death,
resignation or removal shall occur within three calendar months, immediately
preceding such next annual election, in which case a governor shall be
chosen at the second succeeding annual election of representatives. And if
the trial of a contested election shall continue longer than until the third
Monday of January next ensuing the election of governor, the governor of the
last year, or the speaker of the senate who may be in the exercise of the
executive authority, shall continue therein until the determination of such
contested election, and until a governor shall be duly qualified as
aforesaid.
7.-3d. The judicial power of the commonwealth is vested by the fifth
article of the constitution as follows:
Sec. 1. The judicial power of this commonwealth shall be vested in a
supreme Court, in courts of oyer and terminer and general jail delivery, in
a court of common pleas, orphans' court, register's court, and a court of
quarter sessions of the peace, for each county in justices of the peace, and
in such other courts as the legislature may from time to time establish.
8.-Sec. 2. By an amendment to this constitution, the judges of the
supreme court, of the several courts of common pleas, and of such other
courts of record as are or shall be established by law, shall be elected by
the qualified electors, as provided by act of April 15, 1851. Pam. Laws,
648. The judges of the supreme court shall hold their offices for the term
of fifteen years if they shall so long behave themselves well. The president
judges of the several courts of common pleas and of such other courts of
record as are or shall be established by law, and all other judges required
to be learned in the law, shall hold their offices for the term of ten years
if they shall so long behave themselves well. The associate judges of the
courts of common pleas shall hold their offices for the term of five years
if they shall so long behave themselves well. But for any reasonable cause
which shall not be sufficient ground of impeachment, the governor may remove
any of them on the address of two-thirds of each branch of the legislature.
The judges of the supreme court and the presidents of the several courts of
common pleas, shall at stated times receive for their services an adequate
compensation to be fixed by law, which shall not be diminished during their
continuance in office, but they shall receive no fees or prerequisites of
office, nor hold any other office of profit under this commonwealth.
9.-Sec. 3. Until otherwise directed by law, the courts of common
pleas shall continue as at present established. Not more than five counties
shall at any time be included in one judicial district organized for said
courts.
10.-Sec. 4. The jurisdiction of the supreme court shall extend over
the state; and the judges thereof shall, by virtue of their offices be
justices of oyer and terminer and general jail delivery, in the several
counties.
11.-Sec. 5. The judges of the court of common pleas, in each county,
shall, by virtue of their offices, be justices of oyer and terminer and
general jail delivery, for the trial of capital and other offenders therein;
any two of the said judges, the president being one, shall be a quorum; but
they shall not hold a court of oyer and terminer, or jail delivery, in any
county, when the judges, of the supreme court, or any of them, shall be
sitting in the same county. The party accused, as well as the commonwealth,
may, under such regulations as shall be prescribed by law, remove the
indictment and proceedings, or a transcript thereof, into the supreme court,
12.-Sec. 6. The supreme court, and the several courts of common pleas,
shall, besides the powers heretofore usually exercised by them, have the
power of a court of chancery, so far as relates to the perpetuating If
testimony, the obtaining of evidence from places not within the state, and
the care of the persons and estates of those who are non compotes mentis.
And the legislature shall vest in the said courts such other powers to grant
relief in equity, as shall be found necessary; and may, from time to time,
enlarge or diminish those powers, or vest them in such other courts as they
shall judge proper for the due administration of justice.
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13,-Sec. 7. The judges of the court of common pleas of each county,
any two of whom shall be a quorum, shall compose the court of quarter
sessions of the peace, and orphans' court thereof: and the register of
wills, together with the said judges, or, any two of them, shall compose the
register's court of each county.
14.-Sec. 8. The judges of the courts of common pleas shall, within
their respective counties, have the like powers with the judges of the
supreme court, to issue writs of certiorari to the justices of the peace,
and to cause their proceedings to be brought before them, and the like right
and justice to be done.
15.-Sec. 9. The president of the court in each circuit within such
circuit, and the judges of the court of common pleas within their respective
counties, shall be justices of the peace, so far as relates to criminal
matters.
16.-Sec. 10. A register's office, for the probate of wills and
granting letters of administration, and an office for the recording of
deeds, shall be kept in each county.
17.-Sec. 11. The style of all process shall be "The commonwealth of
Pennsylvania." All prosecutions shall be carried on in the name and by the
authority of the commonwealth of Pennsylvania, and conclude, "against the
peace and dignity of the same."
PENNY. The name of an English coin of the value of one-twelfth part of a
shilling. While the United States were colonies, each adopted a monetary
system composed of pounds, shillings, and pence. The penny varied in value
in the different colonies.
PENNYWEIGHT. A troy weight which weighs twenty-four grains, or one-twentieth
part of an ounce. Vide Weights.
PENSION. A stated and certain allowance granted by the government to an
individual, or those who represent him, for valuable services performed by
him for the country. The government of the United States has, by general
laws, granted pensions to revolutionary soldiers; vide 1 Story's Laws U. S.
68; 101, 224, 304, 363, 371, 451; 2 Id. 903, 915, 983, 1008, 1240; 3 Id.
1662, 1747, 1778, 1794, 1825, 1927; 4 Id. 2112, 2270, 2329, 2336, 2366; to
naval officers and sailors; 1 Sto. L. U. S. 474, 677, 769; 2 Id. 1284 3 Id.
1565; to the army generally; 1 Id. 360, 412, 448; 2 Id. 833; 3 Id 1573 to
the militia generally; 1 Id. 255, 360, 412, 488 2 Id. 1382; 3 Id. 1873; in
the Seminole war, 3 Id. 1706.
PENSIONER. One who is supported by an allowance at the will of another. It
is more usually applied to him who receives an annuity or pension from the
government.
PEONIA, Spanish law. A portion of land which was formerly given to a simple
soldier, on the conquest of a country. It is now a quantity of land, of
different size in different provinces. In the Spanish possessions in
America, it measured fifty feet front and one hundred feet deep. 2 White's
Coll. 49; 12 Pet. 444, notes.
PEOPLE. A state; as, the people of the state of New York; a nation in its
collective and political capacity. 4 T. R. 783. See 6 Pet. S. C. Rep. 467.
2. The word people occurs in a policy of insurance. The insurer insures
against "detainments of all kings, princes and people." He is not by this
understood to insure against any promiscuous or lawless rabble which may be
guilty of attacking or detaining a ship. 2 Marsh. Ins. 508. Vide Body
politic; Nation.
PER. By. When a writ of entry is sued out against the alienee, or descendant
of the original disseisor, it is then said to be brought in the per, because
the writ states that the tenant had not the entry but by the original wrong
doer. 3 Bl. Com. 181. See Entry, writ of.
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PER CAPITA, by the head or polls. This term is applied when an estate is to
be divided share and share alike. For example, if a legacy be given to the
issue of A B, and A B at the time of his death, shall have two children and
two grandchildren, his estate shall be divided into four parts, and the
children and grandchildren shall each have one of them. 3 Ves. 257; 13 Ves.
344. Vide 1 Rop. on Leg. 126, 130.
PER AND CUI. When a writ of entry is brought against a second alienee or
descendant from the disseisor, it is said to be in the per and cui, because
the form of the writ is that the tenant had not entry but by and under a
prior alienee, to whom the intruder himself demised it. 2 Bl. Com. 181. See
Entry, writ of.
PER FRAUDEM. A replication to a plea where something has been pleaded which
would be a discharge, if it had been honestly pleaded, that such a thing has
been obtained by fraud for example, where on debt on a statute, the
defendant pleads a prior action depending, if such action has been commenced
by fraud the plaintiff may reply per fraudem: 2 Chit. Pl. *675.
PER INFORTUNIUM, criminal law. Homicide per infortunium, or by misadventure,
is said to take place when a man in doing a lawful act, without any intent
to hurt, unfortunately kills another. Hawk. bk. 1, c. 11; Foster, 258, 259;
3 Inst. 56.
PER MY ET PER TOUT. By every part or parcel and by the whole. A joint tenant
of lands is said to be seised per my et per tout. Litt. s. 288. See 7 Mann.
& Gr. 172, note c.
PERAMBULATIONE FACIENDA, WRIT DE, Eng. law. The name of a writ which is sued
by consent of both parties, when they are in doubt as to the bounds of their
respective estates; it is directed to the sheriff to make perambulation, and
to set the bounds and limits between them in certainty. F. N. B. 309.
2. "The writ de perambulatione facienda is not known to have been
adopted in practice in the United States," says Professor Greenleaf, Ev.
Sec. 146 note, "but in several of the states, remedies somewhat similar in
principle have been provided by statutes."
PERCH, measure. The length of sixteen feet and a half: a pole or rod of that
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length. Forty perches in length and four in breadth make an acre of land.
PERDONATIO UTLAGARIAE, Eng. law. A pardon for a man who, for contempt in not
yielding obedience to the process of the king's courts, is outlawed, and
afterwards, of his own accord, surrenders.
PEREGRINI, civil law. Under the denomination of peregrini were comprehended
all who did not enjoy any capacity of the law, namely, slaves, alien
enemies, and such foreigners as belonged to nations with which the Romans
bad not established relations. Sav. Dr. Rom. Sec. 66.
PEREMPTORY. Absolute; positive. A final determination to act without hope of
renewing or altering. Joined to a substantive, this word is frequently used
in law; as peremptory action; F. N. B. 35, 38, 104, 108; peremptory nonsuit;
Id. 5, 11; peremptory exception; Bract. lib. 4, c. 20; peremptory
undertaking; 3 Chit. Pract. 112, 793; peremptory challenge of jurors, which
is the right to challenge without assigning any cause. Inst. 4, 13, 9 Code,
7, 50, 2; Id. 8, 36, 8; Dig. 5, 1, 70 et 73.
PEREMPTORY DEFENCE, equity, pleading. A defence which insists that the
plaintiff never had the right to institute the suit, or that if he had, the
original right is extinguished or determined. 4 Bouv. Inst. n. 4206.
PERNANCY. This word, which is derived from the French prendre, to take,
signifies a taking or receiving.
PERNOR OF PROFITS. He who receives the profits of lands, &c. A cestui que
use, who is legally entitled and actually does receive the profits, i's the
pernor of profits.
PERSONAL ACTIONS. Personal actions are those brought for the specific goods
and chattels; or for damages or other redress for breach of contract or for
injuries of every other description; the specific recovery of lands,
tenements and hereditaments only excepted. Vide Actions, and 1 Com. Dig.
206, 450; 1 Vin. Ab. 197; 3 Bouv. Inst. n. 2641, et. seq.
PERSONAL LIBERTY. Vide Liberty.
PERSONAL PROPERTY. The right or interest which a man has in things personal;
it consists of things temporary and movable, and includes all subjects of
property not of a freehold nature, nor descendable to the heirs at law.
Things of a movable nature, when a right can be had in them, are personal
property, but some things movable are not the subject of property; as light
and air. Under the term personal property, is also included some property
which is in its nature immovable, distinguished by the name of chattels
real, as an estate for years; and fixtures (q.v.) are sometimes classed
among personal property. A crop growing in the ground is considered personal
property. so far as not to be considered an interest in land, under the
statute of frauds. 11 East, 362; 1 Shopl. 337; 5 B & C. 829; 10 Ad. & E.
753; 9 B. & C. 561; sed vide 9 B. & C. 561.
2. It is a general principle of American law, that stock held in
corporations, is to be considered as personal property; Walk. Introd. 211; 4
Dane's Ab. 670; Sull. on Land Tit. 71; 1 Hill. Ab. 18; though it was held
that such stock was real estate; 2 Conn. R. 567; but, this being found
inconvenient, the law was changed by the legislature.
3. Property in personal chattels is either absolute or qualified;
absolute, when the owner has a complete title and full dominion over it;
qualified, when he has a temporary or special interest, liable to be totally
divested on the happening of some particular event. 2 Kent, Com. 281.
4. Considered in relation to its use, personal property is either in
possession, that is, in the actual enjoyment of the owner, or, in action,
that is, not in his possession, but in the possession of another, and
recoverable by action.
5. Title to personal property is acquired. 1st. By original acquisition
by occupancy; as, by capture in war; by finding a lost thing. 2d. By
original acquisition; by accession. 3d. By original acquisition, by
intellectual labor; as, copyrights and patents for inventions. 4th. IV
transfer, which is by act of law. 1. By forfeiture. 2. By judgment. 3. By
insolvency. 4. By intestacy. 5th. By transfer, by act of the party. 1.
Gifts. 2. Sale. Vide, generally, 16 Vin. Ab. 335; 8 Com. Dig. 474; Id. 562;
1 Supp. to Ves. Jr. 49, 121, 160, 198, 255, 368, 9, 399, 412, 478; 2 Ibid.
10, 40, 129, 290, 291, 341; 1 Vern. 3, 170, 412; 2 Salk. 449; 2 Ves. Jr. 59,
336, 176, 261, 271, 683; 7 Ves. 453. See Pew; Property; Real property.
PERSONAL REPRESENTATIVES. These words are construed to mean the executors or
administrators of the person deceased. 6 Mad. R. 159; 2 Mad. R. 155; 5 Ves.
402; 1 Madd. Ch. 108.
PERSONAL SECURITY. The legal and uninterrupted enjoyment by a man of his
life, his body, his health and his reputation. 1 Bouv. Inst. n. 202.
PERSONALITY OF LAWS. Those laws which regulate the condition, state, or
capacity of persons. The term is used in opposition to those laws which
concern property, whether real or personal, and things. See Story, Confl. of
L. 23; and Reality of laws.
PERSONALITY. An abstract of personal; as, the action is in the personalty,
that is, it is brought against a person for a personal duty which he owes.
It also signifies what belongs to the person; as, personal property.
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TO PERSONATE, crim. law. The act of assuming the character of another
without lawful authority, and, in such character, doing something to his
prejudice, or to the prejudice of another, without his will or consent.
2. The bare fact of personating another for the purpose of fraud, is no
more than a cheat or misdemeanor at common law, and punishable as such. 2
East, P. C. 1010; 2 Russ. on Cr. 479.
3. By the act of congress of the 30th April, 1790, s. 15, 1 Story's
Laws U. S. 86, it is enacted, that "if any person shall acknowledge, or
procure to be acknowledged in any court of the United States, any
recognizance, bail or judgment, in the name or names of any other person or
persons not privy or consenting to the same, every such person or persons,
on conviction thereof, shall be fined not exceeding five thousand dollars,
or be imprisoned not exceeding seven years, and whipped not exceeding
thirty-nine stripes, Provided nevertheless. that this act shall not extend
to the acknowledgment of any judgment or judgments by any attorney or
attorneys, duly admitted, for any person or persons against whom any such
judgment or judgments shall be bad or given." Vide, generally, 2 John. Cas.
293; 16 Vin. Ab. 336; Com. Dig. Action on the case for a deceit, A 3.
TO PERSUADE, PERSUADING. To persuade is to induce to act: persuading is
inducing others to act. Inst. 4, 6, 23; Dig. 11, 3, 1, 5.
2. In the act of the legislature which declared that "if any person or
persons knowingly and willingly shall aid or assist any enemies at open war
with this state, &c. by persuading others to enlist for that purpose, &c.,
he shall be adjudged guilty of high treason;" the word persuading, thus
used; means to succeed: and there must be an actual enlistment, of the
person persuaded in order to bring the, defendant within the intention of
the clause. 1 Dall. R. 39; Carr. Crim. L 237; 4 Car. & Payne, 369 S. C. 1 9
E. C L. R. 425; 9 Car. & P. 79; and article Administering; vide 2 Lord Raym.
889. It may be fairly argued, however, that the attempt to persuade without
success would be a misdemeanor. 1 Russ. on Cr. 44.
3. In England it has been decided, that to incite and procure a person
to commit suicide, is not a crime for which the party could be tried. 9 C. &
P. 79; 38 E. C. L. R. 42; M. C. C. 356. Vide Attempt; Solicitation.
PERSUASION. The act of influencing by expostulation or request. While the
persuasion is confined within those limits which leave the mind free, it may
be used to induce another to make his will, or even to make it in his own
favor; but if such persuasion should so far operate on the mind of the
testator, that he would be deprived of a perfectly free will, it would
vitiate the instrument. 3 Serg. & Rawle, 269; 5 Serg. & Rawle, 207; 13 Serg.
& Rawle, 323.
PERTINENT, evidence. Those facts which tend to prove the allegations of the
party offering them, are called pertinent; those which have no such tendency
are called impertinent, 8 Toull. n. 22. By pertinent is also meant that
which belongs. Willes, 319.
PESAGE, mer. law. In England a toll bearing this name is charged for
weighing avoirdupois goods other than wool. 2 Chit. Com. Law. 16.
PETIT, sometimes corrupted into petty. A French word signifying little,
small. It is frequently used, as petit larceny, petit jury, petit treason.
PETIT, TREASON, English law. The killing of a master by his servant; a
husband by his wife; a superior by a secular or religious man. In the United
States this is like any other murder. See High, Treason; Treason.
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PETITION. An instrument of writing or printing containing a prayer from the
person presenting it, called the petitioner, to the body or person to whom
it is presented, for the redress of some wrong, or the grant of some favor,
which the latter has the right to give.
2. By the constitution of the United States the right "to petition the
government for a redress of grievances," is secured to the people. Amend.
Art. 1.
3. Petitions are frequently presented to the courts in order to bring
some matters before them. It is a general rule, in such cases, that an
affidavit should be made that the facts therein contained are true as far as
known to the petitioner, and that those facts which he states as knowing
from others be believes to be true.
PETITION OF RIGHT, Eng. law. When the crown is in possession, or any title
is vested in it which is claimed by a subject, as no suit can be brought
against the king, the subject is allowed to file in chancery a petition of
right to the king.
2. This is in the, nature of an action against a subject, in which the
petitioner sets out his right to that which is demanded by him, and prays
the king to do him right and justice; and, upon a due and lawful trial of
the right, to make him restitution. It is called a petition of right,
because the king is bound of right to answer it, and let the matter therein
contained be determined in a legal way, in like manner as causes between
subject and subject. The petition is presented to the king, who subscribes
it, with these words, soit droit fait al partie, and thereupon it is
delivered to the chancellor to be executed according to law. Coke's Entr.
419, 422 b; Mitf. Eq. Pl. 30, 31; Coop. Eq. Pl. 22, 23.
PETITORY. That which demands or petitions that which has, the, quality of a
prayer or petition; a right to demand.
2. A petitory suit or action is understood to be one in which the mere
title to property is to be enforced by means of a demand or petition, as
distinguished from a possessory suit. 1 Kent, Com. 371.
3. In the Scotch law, petitory actions are so called, not because
something is sought to be awarded by the judge, for in that sense all
actions must be petitory, but because some demand is made upon the defender,
in consequence either of the right of property or credit in the pursuer.
Thus, actions for restitution of movables, actions of pounding, of
forthcoming, and indeed all personal actions upon contracts, or quasi
contracts, which the Romans called condictiones, are petitory. Ersk. Inst.
b. 4, t. 1, n. 47.
PETTY AVERAGE. A contribution by the owners of the ship, freight and goods
on board, for losses sustained by the ship and cargo, which consist of small
charges. Vide Average.
PETTY BAG, Eng. law. An office in the court of chancery, appropriated for
suits against attorneys and officers of the court; and for, process and
proceedings, by extent on statutes, recognizances, ad quod damnum and the
like. T. de la Ley.
PEW. A seat in a church separated from all others, with a convenient space
to stand therein.
2. It is an incorporeal interest in the real property. And, although a
man has the exclusive right to it, yet, it seems, he cannot maintain
trespass against a person entering it; 1 T. R. 430; but case is the proper
remedy. 3 B. & Ald. 361; 8 B. & C. 294; S. C. 15 Eng. C. L. R. 221.
3. The right to pews is limited and usufructuary, and does not
interfere with the right of the parish or congregation to pull down and
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rebuild the church. 4 Ohio R 541; 5 Cowen's R. 496; 17 Mass. R. 435; 1 Pick.
R. 102; 3 Pick. R. 344; 6 S. & R. 508; 9 Wheat. R. 445; 9 Cranch, R. 52; 6
John. R. 41; 4 Johns. Ch. R. 596; 6 T. R. 396. Vide Pow. Mortgages, Index,
h.t.; 2 Bl. Com. 429; 1 Chit. Pr. 208, 210; 1 Pow. Mort. 17 n.
4. In Connecticut and Maine, and in Massachusetts, (except in Boston),
pews are considered real estate: in Boston they are personal chattels. In
New Hampshire they are personal property. 1 Smith's St. 145. The precise
nature of such property does not appear to be well settled in New York. 15
Wend. R. 218; 16 Wend. R. 28; 5 Cowen's R. 494. See Rev. St. Mass. 413;
Conn. L. 432; 10 Mass. R. 323 17 Mass. 438; 7 Pick. R. 138; 4 N. H. Rep.
180; 4 Ohio R. 515; 4 Harr. & McHen. 279; Harr. Dig. Ecclesiastical Law.
Vide Perturbation of seat; Best on Pres. 111; Crabb on R. P. Sec. 481 to
497.
PHAROS. A light-house or beacon. It is derived from Phams, a small island at
the mouth of the Nile, on which was built a watch-tower.
PHYSICIAN. One lawfully engaged in the practice of medicine.
2. A physician in England cannot recover for fees, as his practice is
altogether honorary. Peake C. N. P. 96, 123; 4 T. R. 317.
3. But in Pennsylvania, and perhaps in all the United States, he may
recover for his services. 5 Serg. & Rawle, 416. The law implies, therefore,
a contract on the part of a medical man, as well as those of other
professions, to discharge their duty in a skillful and attentive manner; and
the law will redress the party injured by their neglect or ignorance. 1
Saund. 312, R; 1 Ld. Raym. 213; 2 Wils. 359; 8 East, 348.
4. They are sometimes answerable criminally for mala praxis. (q.v.) 2
Russ. on Cr. 288; Ayl. Pand. 213; Com. Dig. h.t. Vin. Ab. h.t.
PHYSIOLOGY, med. jur. The science which treats of the functions of animals;
it is the science of life.
2. The legal practitioner who expects to rise to eminence, must acquire
some acquaintance with physiology. This subject is intimately connected with
gestation, birth, life and death. Vide 2 Chit. Pr. 42, n.
PIGNORATION, civil law. This word is used by Justinian in the title of the
52d novel, and signifies not only a pledge of property, but an engagement of
the person.
PICKPOCKET. A thief; one who in a crowd or. in other places, steals from the
pockets or person of another without putting him in fear. This is generally
punished as simple larceny.
PIGNORATIVE CONTRACT, civ. law. A contract by which the owner of an estate
engages it to another for a sum of money, and grants to him and his
successors the right to enjoy it, until he shall be reimbursed, voluntarily,
that sum of money. Poth. h.t.
PIGNORIS CAPIO, ROM. civil law. The name given to one of the legis actiones
of the Roman law. It consisted chiefly in the taking. of a pledge, and was
in fact a mode of execution. It was confined to special cases determined by
positive law or by custom, such as taxes, duties, rents, &c., and is
comparable in some respects to distresses at common law. The proceeding took
place in the presence of a praetor.
PIGNUS, civil law. This word signifies in English, pledge or pawn. (q.v.) It
is derived, says Gaius, from pugnium, the fist, because what is delivered in
pledge is delivered. in hand. Dig. 50, 16, 238, 2. This is one of several
instances of the failure of the Roman jurists, when they attempted
etymological explanation of words. The elements of pignus (pig) is contained
in the word p---[?], and its cognate forms. Smith's Dict. Gr. and Rom.
Antiq. h.v.
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PILLAGE. The taking by violence of private property by a victorious army
from the citizens or subjects of the enemy. This, in modern times, is seldom
allowed, and then, only when authorized by the commander or chief officer,
at the place where the pillage is committed. The property thus violently
taken in general belongs to the common soldiers. See Dall. Dict. Propriete,
art. 3, Sec. 5; Wolff, Sec. 1201; and Booty; Prize.
PILLORY, punishment. wooden machine in which the neck of the culprit is
inserted.
2. This punishment has been superseded by the adoption of the
penitentiary system in most of the states. Vide 1 Chit. Cr. Law, 797. The
punishment of standing in the pillory, so far as the same was provided by
the laws of the United States, was abolished by the act of congress of
February 27, 1839, s. 5. See Baxr. on the Stat. 48, note.
PILOT, mer. law. This word has two meanings. It signifies, first, an officer
serving on board of a ship during the course of a voyage, and having the
charge of the helm and of the ship's route; and, secondly, an officer
authorized by law, who is taken on board at a particular place, for the
purpose of conducting a ship through a river, road or channel, or from or
into port.
2. Pilots of the second description are established by legislative
enactments at the principal seaports in this country, and have rights, and
are bound to perform duties, agreeably to the provisions of the several laws
establishing them.
3. Pilots have been established in all maritime countries. After due
trial and experience of their qualifications, they are licensed to offer
themselves as guides in difficult navigation; and they are usually, on the
other hand, bound to obey the call of a ship-master to exercise their
functions. Abbott on Ship. 180; 1 John R. 305; 4 Dall. 205; 2 New R. 82; 5
Rob. Adm. Rep. 308; 6 Rob. Adm. R. 316; Laws of Oler. art. 23; Molloy, B. 2,
c. 9, s. 3 and 7; Wesk. Ins. 395; Act of Congress of 7th August, 1789, s. 4;
Merl. Repert. h.t.; Pardessus, n. 637.
PILOTAGE, contracts. The compensation given to a pilot for conducting a
vessel in or out of port. Poth. Des Avaries, n. 147.
2. Pilotage is a lien on the ship, when the contract has been made by
the master or quasi master of the ship, or some other person lawfully
authorized to make it; 1 Mason, R. 508; and the admiralty court has
jurisdiction, when services have been performed at sea. Id.; 10 Wheat. 428;
6 Pet. 682; 10 Pet. 108; and see 1 Pet. Adm. Dec. 227.
PIN MONEY. Money allowed by a man to his wife to spend for her own personal
comforts.
2. When pin money is given to, but not spent by the wife, on his death
it belongs to his estate. 4 Vin. Ab. 133, tit'. Baron and Feme, E a. 8; 2
Eq. Cas. Ab. 156; 2 P. Wms. 341; 3 P. Wms. 353; 1 Ves. 267; 2 Ves. 190; 1
Madd. Ch. 489, 490.
3. In the French law the term Epingles, pins, is used to designate the
present which is sometimes given by the purchaser of an immovable to the
wife or daughters of the seller to induce them to consent to the sale. This
present is not considered as a part of the consideration, but a purely
voluntary gift. Diet. de Jur. mot Epingles.
4. In England it was once adjudged that a promise to a wife, by the
purchaser, that if she would not hinder the bargain for the sale of the
husband's lands, he would give her ten pounds, was valid, and might be
enforced by an action of assumpsit, instituted by husband and wife. Roll.
Ab. 21, 22.
5. It has been conjectured that the term pin money, has been applied to
signify the provision for a married woman, because anciently there was a tax
laid for providing the English queen with pins. Barringt. on the Stat. 181.
PINT. A liquid measure containing half a quart or the eighth part of a
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gallon.
PIPE, Eng. laid. The name of a roll in the exchequer otherwise called the
Great Roll. A measure containing two hogsheads; one hundred and twenty-six
gallons is also called a pipe.
PIRACY, crim. law. A robbery or forcible depreciation on the high seas,
without lawful authority, done animo furandi, in the spirit and intention of
universal hostility. 5 Wheat. 153, 163; 3 Wheat. 610; 3 Wash. C. C. R. 209.
This is the definition of this offence by the law of nations. 1 Kent, Com.
183. The word is derived from peira deceptio, deceit or deception: or from
peiron wandering up and down, and resting in no place, but coasting hither
and thither to do mischief. Ridley's View, Part 2, c. 1, s. 3.
2. Congress may define and punish piracies and felonies on the high
seas, and offences against the law of nations. Const. U. S. Art. 1, s. 7, n.
10; 5 Wheat. 184, 153, 76; 3 Wheat. 336. In pursuance of the authority thus
given by the constitution, it was declared by the act of congress of April
30, 1790, s. 8, 1 Story's Laws U. S. 84, that murder or robbery committed on
the high seas, or in any river, haven, or bay, out of the jurisdiction of
any particular state, or any offence, which, if committed within the body of
a county, would, by the laws of the United States, be punishable with death,
should be adjudged to be piracy and felony, and punishable with death. It
was further declared, that if any captain or manner should piratically and
feloniously run away with a vessel, or any goods or merchandise of the value
of fifty dollars; or should yield up such vessel voluntarily to pirates; or
if any seaman should forcible endeavor to hinder his commander from
defending the ship or goods committed to his trust, or should make revolt in
the ship; every such offender should be adjudged a pirate and felon, and be
punishable with death. Accessaries before the fact are punishable as the
principal; those after the fact with fine and imprisonment.
3. By a subsequent act, passed March 3, 1819, 3 Story, 1739, made
perpetual by the act of May 15, 1820, 1 Story, 1798, congress declared, that
if any person upon the high seas, should commit the crime of piracy as
defined by the law of nations, he should, on conviction, suffer death.
4. And again by the act of May 15, 1820, s. 3, 1 Story, 1798, congress
declared that if any person should, upon the high seas, or in any open
roadstead, or in any haven, basin or bay, or in any river where the sea ebbs
and flows, commit the crime of robbery in or upon any ship or vessel, or
upon any of the ship's company of any ship or vessel, or the lading thereof,
such person should be adjudged to be a pirate, and suffer death. And if any
person engaged in any piratical cruise or enterprize, or being of the crew
or ship's company of any piratical ship or vessel, should land from such
ship or vessel, and, on shore; should commit robbery, such person should be
adjudged a pirate and suffer death. Provided that the state in which the
offence may have been committed should not be deprived of its jurisdiction
over the same, when committed within the body of a county, and that the
courts of the United States should have no jurisdiction to try such
offenders, after conviction or acquittal, for the same offence, in a state
court. The 4th and 5th sections of the last mentioned act declare persons
engaged in the slave trade, or in forcibly detaining a free negro or mulatto
and carrying him in any ship or vessel into slavery, piracy, punishable with
death. Vide 1 Kent, Com. 183; Beaussant, Code Maritime, t. 1, p. 244;
Dalloz, Diet. Supp. h.t.; Dougl. 613; Park's Ins. Index, h.t. Bac. Ab. h.t.;
16 Vin. Ab. 346; Ayl. Pand. 42 11 Wheat. R. 39; 1 Gall. R. 247; Id. 524 3 W.
C. C. R. 209, 240; 1 Pet. C. C. R. 118, 121.
PIRACY, torts. By piracy is understood the plagiarisms of a book, engraving
or other work, for which a copyright has been taken out.
2. When a piracy has been made of such a work, an injunction will be
granted. 5 Ves. 709; 4 Ves. 681; 12 Ves. 270. Vide copyright.
PIRATE. A sea robber, who, to enrich himself by subtlety or open force,
setteth upon merchants and others trading by sea, despoiling them of their
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loading, and sometimes bereaving them of life and, sinking their ships;
Ridley's View of the Civ. and Eccl. Law, part 2, c. 1, s. 8; or more
generally one guilty of the crime of piracy. Merl. Repert. h.t. See, for the
etymology of this word, Bac. Ab. Piracy
PIRATICALLY, pleadings. This is a technical word, essential to charge the
crime of piracy in an indictment, which cannot be supplied by another word,
or any circumlocution. Hawk. B. 1, c. 37, s. 15; 3 Inst. 112; 1 Chit. Cr.
Law, *244.
PISCARY. The right of fishing in the waters of another. Bac. Ab. h.t.; 5
Com. Dig. 366. Vide Fishery.
PISTAREEN. A small Spanish coin. It is not a coin made current by the laws
of the United States. 10 Pet. 618.
PIT, fossa. A hole dug in the earth, which was filled with water, and in
which women thieves were drowned, instead of being hung. The punishment of
the pit was formerly common in Scotland.
PLACE, pleading, evidence. A particular portion of space; locality.
2. In local actions, the plaintiff must lay his venue in the county in
which the action arose. It is a general rule, that the place of every
traversable fact, stated in the pleading, must be distinctly alleged; Com.
Dig. Pleader, c. 20; Cro. Eliz. 78, 98; Lawes' Pl. 57; Bac. Ab. Venue, B;
Co. Litt. 303 a; and some place must be alleged for every such fact; this is
done by designating the city, town, village, parish or district, together
with the county in which the fact is alleged to have occurred; and the place
thus designated, is called the venue. (q.v.)
3. In transitory actions, the place laid in the declaration, need not
be the place where the cause of action arose, unless when required by
statute. In local actions, the plaintiff will be confined in his proof to
the county laid in the declaration.
4. In criminal cases the facts must be laid and proved to have been
committed within the jurisdiction of the court, or the defendant must be
acquitted. 2 Hawk. c. 25, s. 84; Arch. Cr. Pl. 40, 95. Vide, generally,
Gould on Pl. c. 3, 102-104; Arch. Civ. Pl. 366; Hamm. N. P. 462; 1 Saund.
347, n. 1; 2 Saund. 5 n.
PLACE OF BUSINESS. The place where a man usually transacts his affairs or
business. When a man keeps a store, shop, counting room or office,
independently and distinctly from all other persons, that is deemed his
place of business 3 and when he usually transacts his business at the
counting house, office, and the like, occupied and used by another, that
will also be considered his place of business, if he has no independent
place of his own. But when he has no particular right to use a place for
such private purpose, as in an insurance office, in exchange room, banking
room, a post office, and the like, where persons generally resort, these
will not be considered as the party's place of business, although he may
occasionally or transiently transact business there. 2 Pet. R. 121; 10 John.
501; 11 John. 231; 1 Pet. S. C. R. 582; 16 Pick. 392.
2. It is a general rule that a notice of the non-acceptance or non-
payment of a bill, or of the non-payment of a note, may be sent either to
the domicil or place of business of the person to be affected by such
notice, and the fact that one is in one town and the other in the other will
make no difference, and the holder has his election to send to either. A
notice to partners may be left at the place of business of the firm or of
any one of the partners. Story on Pr. Notes, Sec. 312.
PLACITUM. A plea. This word is nomen generalissimum, and refers to all the
pleas in the case. 1 Saund. 388, n. 6; Skinn. 554; S. C. earth. 834; Yelv.
65. By placitum is also understood the subdivisions in abridgments and other
works, where the point decided in a case is set down, separately, and
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generally numbered. In citing, it is abbreviated as follows: Vin. Ab.
Abatement, pl. 3.
2. Placita, is the style of the English courts at the beginning of the
record of Nisi Prius; in this sense, placita are divided into pleas of the
crown, and common pleas.
3. The word is used by continental writers to signify jurisdictions,
judgments, or assemblies for discussing causes. It occurs frequently in the
laws of the Longobards, in which there is a title de his qui ad, placitum
venire coguntur. The word, it has been suggested, is derived from the German
platz, which signifies the same as area facta. See Const. Car. Mag. Cap. IX.
Hinemar's Epist. 227 and 197. The common formula in most of the
capitularies is "Placuit atque convenit inter Francos et corum proceres,"
and hence, says Dupin, the laws themselves are often called placita. Dupin,
Notions sur le Droit, p. 73.
PLAGIARISM. The act of appropriating the ideas and language of another, and
passing them for one's own.
2. When this amounts to piracy the party who has been guilty of it will
be enjoined, when the original author has a copyright. Vide Copyright;
Piracy; Quotation; Pard. Dr. Com. n. 169.
PLAGIARIUS, civil law. He who fraudulently concealed a freeman or slave who
belonged to another.
2. The offence itself was called plagium.
3. It differed from larceny or theft in this, that larceny always
implies that the guilty party intended to make a profit, whereas the
plagiarius did not intend to make any profit. Dig. 48, 15, 6; Code, 9, 20,
9 and 15.
PLAGIUM. Man stealing, kidnapping. This offence is the crimen plagii of the
Romans. Alis. Pr. Cr. Law, 280, 281.
PLAINT, Eng. law. The exhibiting of any action, real or personal, in
writing; the party making his plaint is called the plaintiff.
PLAINTIFF, practice. He who, in a personal action, seeks a remedy for an
injury to his rights. Ham. on Parties, h.t.; 1 Chit. Pl. Index, h.t.; Chit.
Pr. Index, h.t.; 1 Com. Dig. 36, 205, 308.
2. Plaintiffs are legal or equitable. The legal plaintiff is he in whom
the legal title or cause of action is vested. The equitable plaintiff is he
who, not having the legal title, yet, is in equity entitled to the thing
sued for; for example, when a suit is brought by Benjamin Franklin for the
use of Robert Morris, Benjamin Franklin is the legal, and Robert Morris the
equitable plaintiff. This is the usual manner of bringing suit, when the
cause of action is not assignable at law, but is so in equity. Vide Bouv.
Inst. Index, h.t.; Parties to Actions.
PLAINTIFF IN ERROR. A party who sues out a writ of error, and this whether
in the court below he was plaintiff or defendant.
PLAN. The delineation or design of a city, a house or houses, a garden, a
vessel, &c. traced on paper or other substance, representing the position,
and the relative proportions of the different parts.
2. When houses are built by one person agreeably to a plan, and one of
them is Sold to a person, with windows and doors in it, the owner of the
others cannot shut up those windows, nor has his grantee any greater right.
1 Price, R. 27; 2 Ry. & Mo. 24; 1 Lev. 122; 2 Saund. 114, n. 4 1 M. & M.
396; 9 Bing 305; 1 Leigh's N. P. 559. See 12 Mass: 159; Hamm. N. P. 202; 2
Hill. Ab. c. 12, n. 6 to 12; Com. Dig. Action on the case for a nuisance, A.
See Ancients Lights; Windows.
PLANTATIONS. Colonies, (q.v.) dependencies. (q.v.) 1 Bl. Com. 107. In
England, this word, as it is used in St. 12, II. c. 18, is never applied to,
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any of the British dominions in Europe, but only to the colonies in the West
Indies and America. 1 Marsh. Ins, B. 1, c. 3, Sec. 2, page 64.
2. By plantation is also meant a farm.
PLAT. A map of a piece of land, in which are marked the courses and
distances of the different lines, and the quantity of land it contains.
2. Such a plat;nay be given in evidence in ascertaining the position of
the land, and what is included, and may serve to settle the figure of a
survey, and correct mistakes. 5 Monr. 160. See 17 Mass. 211; 5 Greenl. 219;
7 Greenl, 61; 4 Wheat. 444; 14 Mass. 149.
PLEA, chancery practice. "A plea," says Lord Bacon, speaking of proceedings
in courts of equity, "is a foreign matter to discharge or stay the suit."
Ord. Chan. (ed. Beam.) p. 26. Lord Redesdale defines it to be "a special
answer showing or relying upon one or more things as a cause why the suit
should be either dismissed, delayed or barred." Mitf. Tr. Ch. 177; see Coop.
Eq. Pl. 223; Beames' Pl. Eq. 1. A plea is a special answer to a bill, and
differs in this from an answer in the common form, as it demands the
judgment of the court in the first instance, whether the matter urged by it
does not debar the plaintiff from his title to that answer which the bill
requires. 2 Sch. & Lef. 721.
2. Pleas are of three sorts: 1. To the jurisdiction of the court. 2. To
the person of the plaintiff. 3. In bar of the plaintiff's suit. Blake's Ch.
Pr. 112. See, generally, Beames' Elem. of Pleas in Eq.; Mitf. Tr. Cha. oh.
2, s. 2, pt. 2; Coop. Eq. Pl. ch. 5; 2 Madd. Ch. Pr. 296 to 331; Blake's Ch.
Pr. 112 to 114; Bouv. Inst. Index, h.t.
PLEA, practice. The defendant's answer by matter of fact, to the plaintiff's
declaration.
2. It is distinguished from a demurrer, which opposes matter of law to
the declaration. Steph. Pl. 62.
3. Pleas are divided into plea dilatory and peremptory; and this is the
most general division to which they are subject.
4. Subordinate to this is another division; they are either to the
jurisdiction of the court, in suspension of the action; in abatement of the
writ; or, in bar of the action; the first three of which belong to the
dilatory class, the last is of the peremptory kind. Steph. Pl. 63; 1 Chit.
Pl. 425; Lawes, Pl. 36.
5. The law has prescribed and settled the order of pleading, which the
defendant is to pursue, to wit; 1st. To the jurisdiction of the court. 2d.
To the disability, &c. of the person. 1st. Of the plaintiff. 2d. Of the
defendant. 3d. To the count or declaration. 4th. To the writ. 1st. To the
form of the writ; first, Matter apparent on the face of it, secondly, Matter
dehors. 2d. To the action of the writ. 5th. To the action itself in bar.
6. This is said to be the natural order of pleading, because each
subsequent, plea admits that there is no foundation for the former. Such is
the English law. 1 Ch. Plead. 425. The rule is different with regard to the
plea of jurisdiction in the courts of the United States and those of
Pennsylvania. 1. Binn. 138; ld. 219; 2 Dall. 368; 3 Dall. 19; 10 S. & R.
229.
7.-2. Plea, in its ancient sense, means suit or action, and it is
sometimes still used in that sense; for example, A B was summoned to answer
C D of a plea that he render, &c. Steph. Pl. 38, 39, u. 9; Warr. Law
Studies, 272, note n.
8.-3. This variable word, to plead, has still another and more
popular use, importing forensic argument in a cause, but it is not so
employed by the profession. Steph. Pl. App. note 1.
9. There are various sorts of pleas, the principal of which are given
below.
10. Plea in abatement, is when, for any default, the defendant prays
that the writ or plaint do abate, that is, cease against him for that time.
Com. Dig. Abatement, B.
11. Hence it may be observed, 1st. That the defendant may plead in
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Abatement for faults apparent on the writ or plaint itself, or for such as
are shown dehors, or out of the writ or plaint. 2d. That a plea in,
abatement is never perpetual, but only a temporary plea, in form at least,
and if the cause revived, the plaintiff may sue again.
12. If the defendant plead a plea in abatement, in his plea, he ought
generally to give a better writ to the plaintiff, that is, show him what
other and better writ can be adopted; Com. Dig. Abatement, I 1; but if the
plea go to the matter and substance of the writ, &c., he need not give the
plaintiff another writ. Nor need he do so when the plea avoids the whole
cause of the action. Id. I 2.
13. Pleas in abatement are divided into those relating, first, to the
disability of the plaintiff or defendant; secondly, to the count or
declaration; thirdly, to the writ. 1 Chit. Pl. 435.
14.-1. Plea in abatement to the person of the plaintiff. Pleas of this
kind are either that the plaintiff is not in existence, being only a
fictitious person, or dead; or else, that being in existence, he is under
some disability to bring or maintain the action, as by being an alien enemy;
Com. Dig. Abatement, E 4 Bac. Abr. Abatement, B 3; 1 Chit. Pl. 436; or the
plaintiff is a married woman, and she sues alone. See 3 T. R. 631; 6 T. R.
265.
15. Plea in abatement to the person of the defendant. These pleas are
coverture, and, in the English law, infancy, when the parol shall demur.
When a feme covert is sued, and the objection is merely that the husband
ought to have been sued jointly with her; as when, since entering into the
contract, or committing the tort, she has married; she must, when sued
alone, plead her coverture in abatement, and aver that her husband is
living. 3 T. R. 627; 1 Chit. Pl. 437, 8.
16.-2. Plea in abatement to the count. Pleas of this kind are for some
uncertainty, repugnancy, or want of form, not appearing on the face of the
writ itself, but apparent from the recital of it in the declaration only; or
else for some variance between the writ and declaration. But it was always
necessary to obtain oyer of the writ before the pleading of these pleas; and
since oyer cannot now be had of the original writ for the purpose of
pleading them, it seems that they can no longer be pleaded. See Oyer.
17. Plea in abatement to the form of the writ. Such pleas are for some
apparent uncertainty, repugnancy, or want of form, variance from the record,
specialty, &c., mentioned therein, or misnomer of the plaintiff or
defendant. Lawes' Civ. Pl. 106; 1 Chit. Pl. 440.
18. Plea in abatement to the action of the writ. Pleas of this kind are
pleaded when the action is misconceived, or was prematurely commenced before
the cause of action arose; or when there is another action depending for the
same cause. Tidd's Pr. 579. But as these matters are ground for demurrer or
nonsuit, it is now very unusual to plead them in abatement. See 2 Saund.
210, a.
19. Plea in avoidance, is one which confesses the matters contained in
the declaration, and avoids the effect of them, by some new matter which
shows that the plaintiff is not entitled to maintain his action. For
example, the plea may admit the contract declared upon, and show that it was
void or voidable, because of the inability of one of the parties to make it,
on account of coverture, infancy, or the like. Lawes, Pl. 122.
20. Plea in bar, is one that denies that the plaintiff has any cause of
action. 1 Ch. Pl. 459 Co. Litt. 303 b; 6 Co. 7. Or it is one which shows
some ground for barring or defeating the action; and makes prayer to that
effect, Steph. Pl. 70; Britton, 92. See Bar.
21. A plea in bar is, therefore, distinguished from all pleas of the
dilatory class, as impugning the right of the action altogether, instead of
merely tending to divert the proceedings to another jurisdiction, or suspend
them, or abate the particular writ. It is in short a substantial and
conclusive answer to the action. It follows, from this property, that in
general, it must either deny all, or some essential part of the averments of
fact in the declaration; or, admitting them to be true, allege new facts,
which obviate and repel their legal effect. In the first case the defendant
is said, in the language of pleading, to traverse the matter of the
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declaration; in the latter, to confess and avoid it. Pleas in bar are
consequently divided into pleas by way of traverse, and pleas by way of
confession and avoidance. Steph. Pl. 70, 71.
22. Pleas in bar are, also divided into general or special. General
pleas in bar deny or take issue either upon the whole or part of the
declaration, or contain some new matter which is relied upon by the
defendant in his defence. Lawes Pl. 110.
23. Special pleas in bar are very various, according to the
circumstances of the defendant's case; as, in personal actions, the
defendant may plead any special matter in denial, avoidance, discharge,
excuse, or justification of the matter alleged in the declaration, which
destroys or bars the plaintiff's action; or he may plead any matter which
estops, or precludes him from averring or insisting on any matter relied
upon by the plaintiff in his declaration. The latter sort of pleas are
called pleas in estoppel. In real actions, the tenant may plead any matter
which destroys and bars the demandant's title; as, a general release. Id.
115, 116.
24. The general qualities of a plea in bar are, 1. That it be adapted to
the nature and form of the action, and also conformable to the count. Co.
Litt. 303, a 285, b; Bac. Abr. Pleas, I; 1 Roll. Rep. 216.
2. That it answers all it assumes to answer, and no more. Co. Litt. 303
a; Com. Dig. Pleader, E 1, 36; 1 Saund. 28, n. 1, 2, 3; 2 Bos. & Pull. 427;
3 Bos. & Pull. 174.
3. In the case of a special plea, that it confess and admit the fact. 3
T. R. 298; 1 Salk. 394; Carth. 380; 1 Saund. 28, n. and 14 u. 3 10 Johns. R.
289.
4. That it be single. Co. Litt. 304; Bac. Ab. Pleas, 2 Saund. K, 1, 2;
Com Dig. Plead. E 2; 49, 50; Plowd. Com. 140, d.
5. That it be certain. Com. Dig. Pleader, E 5, 7, 8, 9, 10, 11; C 41;
this Dict. Certainty; Pleading.
6. It must be direct, positive, and not argumentative. See 6 Cranch,
126; 9 Johns. It. 313.
7. It must be capable of trial. 8. It must be true and capable of
proof. See Plea, sham.
25. The parts of a plea in bar may be considered with reference to,
1. The title of the court in which it is pleaded.
2. The title of the term.
3. The names of the parties in the margin. These, however, do not
constitute any part of the plea. The surnames only are usually inserted, and
that of the defendant precedes the plaintiff's; as, "Roeats. Doe."
4. The commencement which includes the statement of, 1. The name of the
defendant; 2. The appearance; 3. The defence; see Defence; 4. The actio non;
see Actio non.
5. The body, which may contain, 1. The inducement; 2. The protestation;
3. Ground of defence 4. Qua est eadem; 5. The traverse.
6. The conclusion.
26. Dilatory pleas are such as delay the plaintiff's remedy, by
questioning, not the cause of action, but the propriety of the suit, or the
mode in which the remedy is sought.
27. Dilatory pleas are divided by Sir William Blackstone, into three
kinds: 1. Pleas to the jurisdiction of the court; as, that the cause of
action arose out of the limits of the jurisdiction of the court, when the
action is local. 2. Pleas to the disability of the plaintiff, or, as they
are usually termed, to' the person of the plaintiff; as, that he is an alien
enemy. 3. Pleas in abatement of the writ, or count; these are founded upon
some defect or mistake, either in the writ itself; as, that the defendant is
misnamed in it, or the like; or in the mode in which the count pursues it;
as, that there is some variance or repugnancy between the count and writ; in
which case, the fault in the count furnishes a cause for abating the writ. 2
Bl. Com. 301 Com. Dig. Abatement, G 1, 8; Id. Pleader, C 14, 15; Bac. Ab.
Pleas, F 7.
28. All dilatory pleas are sometimes called pleas in abatement, as
contradistinguished to pleas to the action; this is perhaps not strictly
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proper, because, though all pleas in abatement are dilatory pleas, yet all
dilatory pleas are not pleas in abatement. Gould on Pl. ch. 2, Sec. 35; vide
1 Chit. PI, ch. 6; Bac. Ab. Abatement, 0; 1 Mass 358; 1 John. Cas. 101. 2. A
plea in discharge, as distinguish ed from a plea in avoidance, is one which
admits the demand, and instead of avoiding the payment or satisfaction of
it, shows that it has been discharged by some matter of fact. Such are pleas
of payment, release, and the like.
30. A plea in excuse, is one which admits the demand or complaint stated
in the declaration, but excuses the non-compliance of the plaintiff's claim,
or the commission of the act of which he complains, on account of the
defendant having done all in his power to satisfy the former, or not having
teen the culpable author of the latter. A plea of tender is an example of
the former, and a plea of son assault demesne, an instance of the latter.
31. A foreign plea is one which takes the cause out of the court where
it is pleaded, by showing a want of jurisdiction in that court. 2 Lill. Pr.
Beg. 374; Carth. 402. See the form of the plea in Lill. Ent. 475.
32. A plea of justification is one in which the defendant professes
purposely to have done the acts which are the subject of the plaintiff's
suit, in order to exercise that right which he considers he might in point
of law exercise, and in the exercise of which he conceives himself not
merely excused, but justified.
33. A plea puis darrein continuance. Under the ancient law, there were
continuances, i. e. adjournments of the proceedings for certain purposes,
from one day or one term to another; and, in such cases, there was an entry
made on the record, expressing the ground of the adjournment, and appointing
the parties to reappear at a given day.
34. In the interval between such continuance and the day appointed, the
parties were of course out of court, and consequently not in a situation to
plead. But it sometimes happened, that after a plea had been pleaded, and
while the parties were out of court, in consequence of such continuance, a
new matter of defence arose, which did not exist, and which the defendant
had consequently no opportunity to plead, before the last continuance. This
new defence he was therefore entitled, at the day given for his
reappearance, to plead as a matter that had happened after the last
continuance, puis darrein continuance. In the same cases that occasioned a
continuance in the ancient common law, but in no other, a continuance shall
take place. At the time indeed, when the pleadings are filed and delivered,
no record exists, and there is, therefore, no entry at that time, made on
the record, of the award of a continuance; but the parties are, from the day
when, by the ancient practice, a continuance would have been entered,
supposed to be out of court, and the pleading is suspended, till the day
arrives to which, by the ancient, practice, the continuance would extend. At
that day, the defendant is entitled, if any new matter of defence has arisen
in the interval, to plead it according to the ancient plan, puis darrein
continuance.
35. A plea puis darrein continuance is not a departure from, but is a
waiver of the first plea, and is always headed by way of substitution for
it, on which no proceeding is afterwards had. 1 Salk. 178; 2 Stran. 1195
Hob. 81; 4 Serg. & Rawle, 239. Great certainty is requisite in pleas of this
description. Doct. Pl. 297; Yelv. 141; Cro. Jac. 261; Freem. 112; 2 Lutw.
1143; 2 Salk. 519; 2 Wils. 139; Co. Entr. 517 b. It is not sufficient to say
generally that after the last continuance such a thing happened, but the day
of the continuance must be shown, and also the time and place must be
alleged where the matter of defence arose. Id. ibid.; Bull. N. P. 309.
36. Pleas puis darrein continuance are either in bar or abatement; Com.
Dig. Abatement, I 24; and are followed, like other pleas, by a replication
and other pleadings, till issue is attained upon them such pleas must be
verified on oath before they are allowed. 2 Smith's R. 396; Freem. 352; 1
Strange, 493.
37. A sham plea is one which is known to the pleader to be false, and is
entered for the purpose of delay. There are certain pleas of this kind,
which, in consequence of their having been long and frequently used in
practice, have obtained toleration from the courts; and, though discouraged,
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are tacitly allowed; as, for example, the common plea of judgment recovered,
that is, that judgment has been already recovered by the plaintiff, for the
same cause of action. Steph. on Pleading, 444, 445; 1 Chit. Pl. 505, 506.
38. Plea in suspension of the action. Such a plea is one which shows
some ground for not proceeding in the suit at the present period, and prays
that the pleading may be stayed, until that ground be removed. The number of
these pleas is small. Among them is that which is founded on the nonage of
the parties, and termed parol demurrer. Stephen on Pleading, 64. See,
generally, Bac. Abr. Pleas, Q; Com. Dig. Abatement, I 24, 34; Doct, Pl. 297;
Bull. N. P. 309; Lawes Civ. Pl. 173; 1 Chit. Pl. 634,; Steph. Pl. 81; Bouv.
Inst. Index.
TO PLEAD. The formal entry of the defendant's defence on the record. In a
popular sense, it signifies the argument in a cause, but it is not so used
by the profession. Steph. Pl. Appx. note I; Story, Eq. Pl. Sec. 5, note.
PLEADING, practice. The statement in a logical, and legal form, of the facts
which constitute the plaintiff's cause of action, or the defendant's ground
of defence; it is the formal mode of alleging that on the record, which
would be the support, or the defence of the party in evidence. 8 T. R. 159;
Dougl. 278; Com. Dig. Pleader, A; Bac. Abr. Pleas and Pleading; Cowp. 682-3.
Or in the language of Lord Coke, good pleading consists in good matter
pleaded in good form, in apt time, and due order. Co. Lit. 303. In a general
sense, it is that which either party to a suit at law alleges for himself in
a court, with respect to the subject-matter of the cause, and the mode in
which it is carried on, including the demand which is made by the plaintiff;
but in strictness, it is no more than setting forth those facts or arguments
which show the justice or legal sufficiency of the plaintiff's demand, and
the defendant's defence, without including the statement of the demand
itself, which is contained in the declaration or count. Bac. Abr. Pleas and
Pleading.
2. The science of pleading was designed only to render the facts of
each party's case plain and intelligible, and to bring the matter in dispute
between them to judgment. Steph. Pl. 1. It is, as has been well observed,
admirably calculated for analyzing a cause, and extracting, like the roots
of an equation, the true points in dispute; and referring them with all
imaginable simplicity, to the court and jury. 1 Hale's C. L. 301, n
3. The parts of pleading have been considered as arrangeable under two
heads; first, the regular, or those which occur, in the ordinary course of a
suit; and secondly, the irregular, or collateral, being those which are
occasioned by mistakes in the pleadings on either side.
4. The regular parts are, 1st. The declaration or count. 2d. The plea,
which is either to the jurisdiction of the court, or suspending the action,
a's in the case of a parol demurrer, or in abatement, or in bar of the
action, or in replevin, an avowry or cognizance. 3d. The replication, and,
in case of an evasive plea, a new assignment, or in replevin the plea in bar
to the avowry or cognizance. 4th. The rejoinder, or, in replevin, the
replication to the plea in bar. 5th. The sur-rejoinder, being in replevin,
the rejoinder. 6th. The rebutter. 7th. The sur-rebutter. Vin. Abr. Pleas and
Pleading, C; Bac. Abr. Pleas and Pleadings, A. 8th. Pleas puis darrein
continuance, when the matter of defence arises pending the suit.
6. The irregular or collateral parts of Pleading are stated to be, 1st.
Demurrers to any art of the pleadings above mentioned. 2dly. Demurrers to
evidence given at trials. 3dly. Bills of exceptions. 4thly. Pleas in scire
facias. And, 5thly. Pleas in error. Vin. Abr. Pleas and Pleadings, C.; Bouv.
Inst. Index, h.t.
PLEADING, SPECIAL. By special pleading is meant the allegation of special or
new matter, as distinguished from a direct denial of matter previously
alleged on the opposite side. Gould on Pl. c. 1, s. 18.
PLEAS OF THE CROWN, Eng. law. This phrase is now employed to signify
criminal causes in which the king is a party. Formerly it signified royal
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causes for offences of a greater magnitude than mere misdemeanors. These
were left to be tried in the courts of the barons, whereas the greater
offences, or royal causes, were to be tried in the king's courts, under the
appellation of pleas of the crown. Robertson's Hist. of Charles V., vol. 1,
p. 48.
PLEAS POLL, Eng. practice. A record which contains the declaration, plea,
replication, rejoinder, and other pleadings, and the issue. Eunom. Dial. 2,
Sec. 29, p. 111.
PLEBEIAN. One who is classed among the common people, as distinguished from
the nobles. Happily in this country the order of nobles does not exist.
PLEBEIANS. One of the divisions of the people in ancient Rome; that class
which was composed of those who were not nobles nor slaves. Vide Smith's
Dic. Gr. & Rom. Antiq. art. Plebes.
PLEBISCIT, civil law. This is an anglicised word from the Latin plebiscitum,
which is composed or derived from plebs and scire, and signifies, to
establish or ordain.
2. A plebiscit was a law which the people, separated from the senators
and the patricians, made on the requisition of one of their magistrates,
that is, a tribune. Inst. 1, 2, 4.
PLEDGE or PAWN, contracts. These words seem indifferently used to convey the
same idea. Story on Bailm. Sec. 286.
2. In the civil code of Louisiana, however, they appear not to have
exactly the same meaning. It is there said that pledges are of two kinds,
namely, the pawn, and the antichresis. Louis'. Code, art. 3101.
3. Sir William Jones defines a pledge to be a bailment of goods by a
debtor to his creditor, to be kept till the debt is discharged. Jones'
Bailm. 117; Id. 36. Chancellor Kent, 2 Kent's Com. 449, follows the same
definition, and see 1 Dane's Abr. c. 17, art. 4. Pothier, De Nantissement,
art. prelim. 1, defines it to be a contract by which a debtor gives to his
creditor a thing to detain as security for his debt. The code Napoleon has
adopted this definition, Code Civ. art. 2071, and the Civil Code of
Louisiana has followed it. Louis. Code, 3100. Lord Holt's definition is,
when goods or chattels are delivered to another as a pawn, to be security
for money borrowed of him by the bailor and this, he adds, is called in
Latin vadium, and in English, a pawn or pledge. Ld. Raym. 909, 913.
4. The foregoing definitions are sufficiently descriptive of the nature
of a pawn or pledge but they are in terms limited to cues where a thing is
given as a security for a debt; but a pawn may well be made as security for
any other engagement. 2 Bulst. 306; Pothier, De Nantissement, n. 11. The
definition of Domat is, therefore, more accurate, because it is more
comprehensive, namely, that it is an appropriation of the thing given for
the security of an engagement. Domat, B. 3, tit. 1, Sec. 1, n. 1. And,
according to Judge Story, it may be defined to be a bailment of personal
property, as security for some debt or engagement. Story on Bailm. Sec. 286.
5. The term pledge or pawn is confined to personal property; and where
real or personal property is transferred by a conveyance of the title, as a
security, it is commonly denominated a mortgage.
6. A mortgage of goods is, in the common law, distinguishable from a
mere pawn. By a grant or a conveyance of goods in gage or mortgage, the
whole legal title passes conditionally to the mortgagee; and if not redeemed
at the time stipulated, the title becomes absolute at law, though equity
will interfere to compel a redemption. But in a pledge a special property
only passes to the pledges, the general property remaining in the pledger. 1
Atk. 167; 6 East, 25; 2 Caines' C. Err. 200; 1 Pick. 889; 1 Pet. S. C. B.
449 2 Pick. R. 610; 5 Pick. R. 60; 8. Pick. R. 236; 9 Greenl. R. 82; 2 N. H.
Rep. 13; 5 N. H. Rep. 545; 5 John. R. 258; 8 John. R. 97; 10 John. R. 471; 2
Hall, R. 63; 6 Mass. R. 425; 15 Mass. R. 480. A mortgage may be without
possession, but a pledge cannot be without possession. 5 Pick. 59, 60; and
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see 2 Pick. 607.
7. Things which are the subject of pledge or pawn are ordinarily goods
and chattels; but money, negotiable instruments, choses in action, and
indeed any other valuable thing of a personal nature, such as patent-rights
and manuscripts, may, by the common law, be delivered in pledge. 10 Johns.
R. 471, 475; 12 Johns. R. 146; 10 Johns. R. 389; 2 Blackf. R. 198; 7 Greenl.
R. 28; 2 Taunt. R. 268; 13 Mass. 105; 15 Mass. 389; Id. 534; 2 Caines' C.
Err. 200; 1 Dane's Abr. ch. 17, art. 4, Sec. ii. See Louis. Code, art.
3121.
8. It is of the essence of the contract, that there should be an actual
delivery of the thing. 6 Mass. 422; 15 Mass. 477 14 Mass. 352; 2 Caines' C.
Err. 200; 2 Kent's Com. 452; Bac. Abr. Bailment, B; 2 Rolle R. 439; 6 Pick.
R. 59, 60; Pothier, De Nantissement, n. 8, 9; Louis. Code, 3129. What will
amount to a delivery, is matter of law. See Delivery.
9. It is essential that the thing should be delivered as a security for
some debt or engagement. Story on Bailm. Sec. 300. And see 3 Cranch, 73; 7
Cranch, 34; 2 John. Ch. R. 309; 1 Atk. 236; Prec. in Ch. 419; 2 Vern. 691;
Gilb. Eq. R. 104; 6 Mass. 339; Pothier, Nantissement, n. 12; Civ. Code of
Lo. art. 3119; Code Civ. art. 2076.
10. In virtue of the pawn the pawnee acquires, by the common law, a
special property in the thing, and is entitled to the possession of it
exclusively, during the time and for the objects for which it is pledged. 2
Bl. Com. 396; Jones' Bailm. 80; Owen R. 123, 124; 1 Bulst. 29; Yelv. 178
Cro. Jac. 244; 2 Ld. Raym. 909, 916; Bac. Abr. Bailment, B; 1 Dane's Abr.
ch. 17, art. 4, SSSS 1, 6; Code Civ. art. 2082; Civ. Code of Lo. art. 3131.
And he has a right to sell the pledge, when there has been a default in the
pledger in complying with his engagement. Such a default does not divest the
general property of the pawner, but still leaves him a right of redemption.
But if the, pledge is not redeemed within the stipulated time, by a due
performance of the contract for which it is a security, the pawnee has then
a right to sell it, in order to have his debt or indemnity. And if there is
no stipulated time for the payment of the debt, but the pledge is for an
indefinite period, the pawnee has a right, upon request, to a prompt
fulfillment of the agreement; and if the pawner refuses to comply, the
pawnee may, upon demand and notice to the pawner, require the pawn to be
sold. 2 Kent's Com. 452; Story on Bailm. 308.
11. The pawnee is bound to use ordinary diligence in keeping the pawn,
and consequently is liable for ordinary neglect in keeping it. Jones' Bailm.
75; 2 Kent's Com. 451; 1 Dane's Abr. ch. 17, art. 12; 2 Ld. Raym, 909, 916;
Domat B 1, tit. 1, Sec. 4, n. 1.
12. The pawner has the right of redemption. If the pledge is conveyed by
way of mortgage, and thus passes the legal title, unless he redeems the
pledge at a stipulated time, the title of the pledge becomes absolute at
law; and the pledger has no remedy at law, but only a remedy in equity to
redeem. 2 Ves. Jr. 378; 2 Caines' C. Err. 200. If, however, the transaction
is not a transfer of ownership, but a mere pledge, as the pledger has never
parted with the general title, he may, at law, redeem, notwithstanding he
has not strictly complied with the condition of his contract. Com. Dig.
Mortgage, B; 1 Pow. on Mortg. by Coventry & Land. 401, and notes, ibid. See
further, as to the pawner's right of redemption, Story on Bailm. Sec. 345 to
349.
13. By the act of pawning, the pawner enters into an implied agreement
or warranty that he is the owner of the property pawned, and that he has a
good right to pass the title. Story on Bailm. Sec. 354.
14. As to the manner of extinguishing the contract of pledge or mortgage
of personal property, see Story on Bailm. 359 to 366.
PLEDGE, contracts. He who becomes security for another, and, in this sense,
every one who becomes bail for another is a pledge. 4 Inst. 180 Com. Dig. B.
See Pledges.
PLEDGER. The same as pawner. (q.v.)
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PLEDGEE. The same as pawnee. (q.v.)
PLEDGES, pleading. It was anciently necessary to find pledges or sureties to
prosecute a suit, and the names of the pledges were added at the foot of the
declaration; but in the course of time it became unnecessary to find such
pledges because the plaintiff was no longer liable to be amerced, pro falsa
clamora, and the pledges were merely nominal persons, and now John Doe and
Richard Roe are the universal pledges; but they may be omitted altogether; 1
Tidd's. Pr. 455; Arch. Civ. Pl. 171; or inserted at any time before
judgment. 4 John. 190.
PLEGIIS ACQUIETANDIS, WRIT DE. The name of an ancient writ in the English
law, which lies where a man becomes pledge or surety for another to pay a
certain sum of money at a certain day; after the day, if the debtor does not
pay the debt, and the. surety be compelled to pay, he shall have this writ
to compel the debtor to pay the same. F. N. B. 321.
PLENA PROBATIO. A term used in the civil law, to signify full proof, in
contradistinction to semi-plena probatio, which is only a presumption. Code,
4, 19, 5, &c. 1 Greenl. Ev. Sec. 119.
PLENARTY, eccl. law. Signifies that a benefice is full. Vide Avoidance.
POLE. A measure of length, equal to five yards and a half. Vide Measure.
POLICE. That species of superintendence by magistrates which has principally
for its object the maintenance of public tranquillity among the citizens.
The officers who are appointed for this purpose are also called the police.
2. The word police has three significations, namely; 1. The first
relates to the measures which are adopted to keep order, the, laws and
ordinances on cleanliness, health, the markets, &c. 2. The second has for
its object to procure to the authorities the means of detecting even the
smallest attempts to commit crime, in order that the guilty may be arrested
before their plans are carried into execution, and delivered over to the
justice of the country. 3. The third comprehends the laws, ordinances and
other measures which require the citizens to exercise their rights in a
particular form.
3. Police has also been divided into administrative police, which has
for its object to maintain constantly public order in every part of the
general administration; and into judiciary police, which is intended
principally to prevent crimes by punishing the criminals. Its object is to
punish crimes which the administrative police has not been able to prevent.
POLL. A head. Hence poll tax is the name of a tax imposed upon the people at
so much a head. 2. To poll a jury is to require that each juror shall
himself declare what is his verdict. This may be done at the instance of
either party, at any time before the verdict is recorded. 3 Cowen, R. 23.
See 18 John. R. 188. See Deed Poll.
POST MARK. A stamp or, mark put on letters in the post office.
2. Post marks are evidence of a letter having passed through the post
office. 2 Camp. 620; 2 B. & P. 316; 15 East, 416; 1 M. & S. 201; 15 Com. R.
206.
POST NOTES. A species of bank notes payable at a distant period, and not on
demand. 2 Watts & Serg. 468. A kind of bank notes intended to be transmitted
at a distance by post. See 24 Maine, R. 36.
POST NATUS. Literally after born; it is used by the old law writers to
designate the second son. See Puisne; Post nati.
POST NUPTIAL. Something which takes place after marriage; as a post nuptial
settlement, which is a conveyance made generally by the husband for the
benefit of the wife.
2. A post nuptial settlement is either with or without consideration.
The former is valid even against creditors, when in other respects it in
untainted with fraud. 4 Mason, 443; 2 Bailey 477. The latter, or when made
without consideration, if bona fide, and the husband be not involved at the
time, and it be not disproportionate to his means, taking his debts and
situation into consideration, is valid. 4 Mason, 443.7 See 4 Dall. 304;
Settlement; Voluntary conveyance.
POST OBIT, contract. An agreement, by which the obligor borrows a certain
sum of money and promises to pay a larger sum, exceeding the lawful rate of
interest, upon the death of a person, from whom he has some expectation, if
the obligor be then living. 7 Mass. R. 119; 6 Madd. R. 111; 5 Ves. 57; 19
Ves. 628.
2. Equity will, in general, relieve a party from these unequal
contracts, as they are fraudulent on the ancestor. See 1 Story, Eq. Sec.
842; 2 P. Wms. 182; 2 Sim. R. 183, 192; 5 Sim. R. 524. But relief will be
granted only on equitable terms, for he who seeks equity must do equity. 1
Fonb. B. 1, c. 2, Sec. 13, note, p; 1 Story, Eq. Sec. 344. See Catching
Bargain; Macedonian Decree.
POST OFFICE. A place where letters are received to be sent to the persons to
whom they, are addressed.
2. The post office establishment of the United States, is of the
greatest importance to the people and to the government. The constitution of
the United States has invested congress with power to establish post offices
and post roads.. Art. 1, s. 8, n. 7.
3. By virtue of this constitutional authority, congress passed several
laws anterior to the third day of March, 1825, when an act, entitled "An act
to reduce into one the several acts establishing and regulating the post
office department," was passed. 3 Story, U. S. 1985. It is thereby enacted,
Sec. 1. That there be established, the seat of the government of the United
States, a general post office, under the direction of a postmaster general.
The postmaster general shall appoint two assistants, and such clerks as may
be necessary for the performance of the business of his office, and as are
authorized by law; and shall procure, and cause to be kept, a seal for the
said office, which shall be affixed to commissions of postmasters, and used
to authenticate all transcripts and copies which may be required from the
department. He shall establish post offices, and appoint postmasters, at all
such places as shall appear to him expedient, on the post roads that are, or
may be, established by law. He shall give his assistants, the postmasters,
and all other persons whom he shall employ, or who may be employed in any of
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the departments of the general post office, instructions relative to their
duty. He shall provide for the carriage of the mail on all post roads that
are, or may be, established by law, and as often "he, having regard to the
productiveness thereof, and other circumstances, shall think proper. He may
direct the route or road, where there are more than one, between places
designated by law for a post road, Which route shall be considered the post
road. He shall obtain, from the postmasters, their accounts and vouchers for
their receipts and expenditures, once in three months, or oftener, with the
balances thereon arising, in favor of the general post office. He shall pay
all expenses which may arise in conducting the post office, and in the
conveyance of the mail, and all other necessary expenses arising on the
collection of the revenue, and management of the general post office. He
shall prosecute offences against the post office establishment. He shall,
once in three months, render, to the secretary of the treasury, a quarterly
account of all the receipts and expenditures in the said department, to be
adjusted and settled as other public accounts. He shall, also, superintend
the business of the department in all tho duties that are, or may be
assigned to it: Provided, That, in case of the death, resignation, or,
removal from office, of the postmaster general, all his duties shall be
performed by his senior assistant, until a successor shall be appointed, and
arrive at the general post office, to perform the business.
4.-Sec. 2. That the postmaster general, and all other persons
employed in the general post office, or in the care, custody, or conveyance
of the mail, shall, previous to entering upon the duties assigned to them,
or the execution of their trusts, and before they shall be entitled to
receive any emolument therefor, respectively take and subscribe the
following oath, or affirmation, before some magistrate, and cause a
certificate thereof to be filed in the general post office: "I, A B, do
swear or affirm, (as the case may be, that I will faithfully perform all the
duties required of me, and abstain from everything forbidden by the laws in
relation to the establishment of the post office and post road s within the
United States." Every person who shall be, in any manner, employed in the
care, custody, or conveyance, or management of the mail, shall be subject to
all pains, penalties, and forfeitures, for violating the injunctions, or
neglecting the duties, required of him by the laws relating to the
establishment of the post office and post roads, whether such person shall
have taken the oath or affirmation, above prescribed, or not.
5.-Sec. 3. That it shall be the duty of the postmaster general, upon
the appointment of any postmaster, to require, and take, of such postmaster,
bond, with good and approved security, in such penalty as he may judge
sufficient, conditioned for the faithful discharge of all the duties of such
postmaster, required by law, or which may be required by any instruction, or
general rule, for the government of the department: Provided, however, That,
if default shall be made by the postmaster aforesaid, at any time, and the
postmaster general shall fail to institute suit against such post-master,
and said sureties, for two years from and after such default shall be made,
then, and in that case, the said sureties shall not be held liable to the
United States, nor shall suit be instituted against them.
6.-Sec. 4. That the postmaster general shall cause a mail to be
carried from the nearest post office, on any established post road, to the
court house of any county which is now, or may hereafter be established in
any of the states or territories of the United States, and which is without
a mail; and the road on which such mail shall be transported, shall become a
post road, and so continue, until the transportation thereon shall cease. It
shall for the postmaster general to enter into contracts, for a term not
exceeding four years, for extending the line of posts, and to authorize the
persons, so contracting, as a compensation for their expenses, to receive
during the continuance of such contracts, at rates not exceeding those for
like distances, established by this act, all the postage which shall arise
on all letters, newspapers, magazines, pamphlets, and packets, conveyed by
any such posts; and the roads designated in such contracts, shall, during
the continuance thereof, be deemed and considered as post roads, within the
provision of this act: and a duplicate of every such contract shall, within
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sixty days after the execution thereof, be lodged in the office of the
comptroller of the treasury of the United States.
7.-Sec. 5. That the postmaster general be authorized to have the mail
carried in any steamboat, or other vessel, which shall be used as a packet
in, any of the waters of the United States, on such terms and conditions as
shall be considered expedient: Provided, That he does not pay more than
three cents for each letter, And more than one half cent for each newspaper,
conveyed in such mail.
8.-Sec. 8. That, whenever it shall be made appear, to the
satisfaction of the postmaster general, that any road established, or which
may hereafter be established as a post road, is obstructed by fences, gates,
or tars, or other than those lawfully used on turnpike, roads to collect
their toll, and not kept in good repair, with proper bridges and ferries,
where the same may be necessary, it shall be the duty of the postmaster
general to report the same to congress, with such information as can be
obtained, to enable congress to establish some other road instead of it, in
the same main direction.
9.-Sec. 9. That it shall be the duty of the postmaster general to
report, annually, to congress, every post road which shall not, after the
second year from its establishment, have produced one-third of the expense
of carrying the mail on the same.
10. The act "to change the organization of the post office department,
and to provide more effectually for the settlement of the accounts thereof,"
passed July 2, 1836, 4 Shars. cont. of Story L. U. S. 2464, contains a
variety of minute provisions for the settlement of the revenue of the post
office department.
11. By the act of the 3d of March, 1845, various provisions are made to
protect the department from fraud and to prevent the abuse of franking.
12. Finding roads in use throughout the country, congress has
established, that is, selected such as suited the convenience of the
government, and which the exigencies of the people required, to be post
roads. It has seldom exercised the power of making new roads, but examples
are not wanting of roads having been made under the express authority of
congress. Story, Const. Sec. 1133. Vide Dead Letter; Jeopardy; Letter; Mail;
Newspaper; Postage; Postmaster; Postmaster general.
POSTAGE. The money charged by law for carrying letters, packets and
documents by mail. By act of congress of March 3, 1851, Minot's Statute at
Large, U. S. 587, it is enacted as follows:
2.-Sec. 1. That from and after the thirtieth day of June, eighteen
hundred and fifty-one, in lieu of the rates of postage now established by
law, there shall be charged the following rates, to with or every single
letter in manuscript, or paper of any kind, upon which information shall be
asked for, or communicated, in writing, or, by marks or signs, conveyed in
the mail for any distance between places within the United State's, not
exceeding three thousand miles, when the postage upon such letter shall have
been prepaid, three cents, and five cents when the postage thereon shall not
have been prepaid; and for any distance exceeding three thousand miles,
double those rates. For every such, single letter or paper when conveyed
wholly or in part by sea, and to or from a foreign country, for any distance
over twenty-five hundred miles, twenty cents, and for any distance under
twenty-five hundred miles, ten cents, (excepting, however, all cases where
such postages have been or shall be adjusted at different rates, by postal
treaty or convention already concluded or hereafter to be made;) and for a
double letter there shall be charged double the rates above specified; and
for a treble letter, treble those rates; and for a quadruple letter,
quadruple those rates; and every letter or parcel not exceeding half an
ounce in weight shall be deemed a single letter, and every additional weight
of half an ounce, or additional weight of less than half an ounce, shall be
charged with an additional single postage. And all drop letters, or letters
placed in any post office, not for transmission, but for delivery only,
shall be charged with postage at the rate of one cent each; and all letters
which shall hereafter be advertised as remaining over or uncalled for in any
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post office, shall be charged with one cent in addition to the regular
postage, both to be accounted for as other postages are.
3.-Sec. 2. That all newspapers not exceeding three ounces in weight,
sent from the office of publication to actual and bona fide subscribers,
shall be charged with postage as follows, to wit: All newspapers published
weekly only, shall circulate in the mail free of postage within the county
where published, and that the postage on the regular numbers of a newspaper
published weekly, for any distance not exceeding fifty miles out of the
county where published, shall be five cents per quarter; for any distance
exceeding fifty miles and not exceeding three hundred miles, ten cents per
quarter; for any distance exceeding three hundred miles and not exceeding
one thousand miles, fifteen cents per quarter; for any distance exceeding
one thousand miles and not exceeding two thousand miles, twenty cents per
quarter; for any distance exceeding two thousand miles and not exceeding
four thousand miles, twenty-five cents per quarter; for any distance
exceeding four thousand miles, thirty cents per quarter; and all newspapers
published monthly, and sent to actual and bona fide subscribers, shall be
charged with one-fourth the foregoing rates; and on all such newspapers
published semi-monthly shall be charged with one-half the foregoing rates;
and papers published semi-weekly shall be charged double those rates;
triweekly, treble those rates; and oftener than tri-weekly, five times,
those rates. And there shall be charged upon every other newspaper, and each
circular not sealed, handbill, engraving, pamphlet, periodical, magazine,
book, and every other description of printed matter, which shall be
unconnected with any manuscript or written matter, and which it may be
lawful to transmit through the mail, of no greater weight than one ounce,
for any distance not exceeding five hundred miles, one cent; and for each
additional ounce or fraction of an ounce, one cent; for any distance
exceeding five hundred miles and not exceeding one thousand five hundred
miles, double those rates; for any distance, exceeding one thousand five
hundred miles and not exceeding two thousand five hundred miles, treble
those rates; for any distance exceeding two thousand five hundred miles and
not exceeding three thousand five hundred miles, four times those rates; for
any distance exceeding three thousand five hundred miles, five times those
rates. Subscribers to all periodicals shall be required to pay one quarter's
postage in advance, and in all such cases the postage shall be one-half the
foregoing rates. Bound books, and parcels of printed matter not weighing
over thirty-two ounces, shall be deemed mailable matter under the provisions
of this section. And the postage on all printed matter other than newspapers
and periodicals published at intervals not exceeding three months, and sent
from the office of publication, to actual and bona fide subscribers, to be
prepaid; and in ascertaining the weight of newspapers for the purpose of
determining the amount of postage chargeable thereon, they shall be weighed
when in a dry state, And whenever any printed matter on which the postage is
required by this section to be prepaid, shall, through the inattention of
postmasters or otherwise, be sent without prepayment, the same shall be
charged with double the amount of postage which would have been chargeable
thereon if the postage had been prepaid; but nothing in this act contained
shall subject to postage any matter which is exempted from the payment of
postage by any existing law, And the postmaster general, by and with the
advice and consent of the president of the United States, shall be, and he
hereby is, authorized to reduce or enlarge, from time to time, the rates of
postage upon all letters. and other mailable matter conveyed between the
United States and any foreign country for the purpose of making better
postal arrangements with other governments, or counteracting any adverse
measures affecting our postal intercourse with foreign countries, and
postmasters at the office of delivery are hereby authorized, and it shall be
their duty, to remove the wrappers and envelopes from all printed matter and
pamphlets not charged with letter postage, for the purpose of ascertaining
whether there is upon or connected with any such printed matter, or in such
package, any matter or thing which would authorize or require the charge of
a higher rate of postage thereon. And all publishers of pamphlets,
periodicals, magazines, and newspapers, which shall not exceed sixteen
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ounces in weight, shall be allowed. to interchange their publications
reciprocally, free of postage: Provided, That such interchange shall be
confined to a single copy of each publication: And provided, also, That said
publishers may enclose in their publications the bills for subscriptions
thereto, without any additional charge for postage; And provided, further,
Thai in all cases where newspapers shall not contain over three hundred
square inches, they may be transmitted through the mails by the publishers
to bona fide subscribers, at one-fourth the rates fixed by this act.
5. By the act of March 3, 1845, providing for the transportation of the
mail between the United States and foreign countries, it is enacted by the
3d section, that the rates of postage to be charged and collected on all
letters, packages, newspapers, and pamphlets, or other printed matter,
between the ports of the United States and the ports of foreign governments
enumerated herein, transported in the United States mail under the
provisions of this act, shall be as follows: Upon all letters and packages
not exceeding one-half ounce in weight, between any of the ports of the
United States and the ports of England or France, or any other foreign port
not less than three thousand miles distant twenty-four cents, with the
inland postage of the United States added when sent through the United
States mail to or from the post office at a port of the United States; upon
letters and packets over one-half an ounce in weight, and not exceeding one
ounce, forty-eight cents; and for every additional half ounce or fraction of
an ounce, fifteen cents; upon all letters and packets not, exceeding one-
half ounce, gent through the United States mail between the ports of the
United States and any of the West India islands, or islands in the Gulf of
Mexico, ten cents; and twenty cents upon letters and packets not exceeding
one ounce; and five cents for every additional half ounce or fraction of an
ounce; upon each newspaper, pamphlet, and price current, sent in the mail
between the United States and any of the ports and places above enumerated,
three cents, with inland United States postage added when the same is
transported to or from said port of the United States in the United States
mail.
POSTAGE STAMPS. The act of congress, approved March 3, 1847, section 11, and
the act of congress of March 3, 1841, sections 3, 4, provide that, to
facilitate the transportation of letters in the mail, the postmaster general
be authorized to prepare postage, stamps, which, when attached to any letter
or packet, shall be evidence of the payment of the postage, chargeable on
such letter. The same sections declare that any person who shall falsely or
fraudulently make, utter, or, forge any postage stamp, with the intent to
defraud the post office department, shall be deemed guilty of felony, and be
punished by a fine not exceeding five hundred dollars, or by imprisonment
not exceeding five years, or by both such fine and imprisonment. And if any
person shall use or attempt to use, in pre-payment of postage, any postage
stamp which shall have been used before for like purposes, such person shall
be subject, to a penalty of fifty dollars for every such offence, to be
recovered in the name of the United States in any court of competent
jurisdiction.
POSTMAN, Eng. law. A barrister in the court of exchequer, who has precedence
in: motions.
POSTMASTER, or DEPUTY POSTMASTER. An officer of the United States appointed
by the postmaster general to hold his office. during the, pleasure of the
former. Before entering on the duties of his office, he is required to give
bond with surety to be approved by the postmaster general. Act of 3d March,
1825, s. 3. 12. Every postmaster is required to keep an office in the place
for which he may be appointed; and it is his duty to receive and forward by
mail, without delay, all letters, papers, and packets as directed; to
receive the mails and deliver, at all reasonable hours, all letters, papers
and packets to the persons entitled thereto.
3. In lieu of commissions allowed deputy postmasters by the 14th
section of the act of 3d March, 1845,.the postmaster general is authorized
by the act of March 1, 1847, s. 1, to allow, on the proceeds of their
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respective offices, a commission not exceeding the following rates on the
amount received in any one year, or a due proportion thereof for less than a
year: On a sum not exceeding one hundred dollars, forty per cent; on a sum
over the first hundred and not exceeding four hundred dollars, thirty-three
and one-third per cent; on a sum over and above the first four hundred
dollars and not exceeding twenty-four hundred dollars, thirty per cent.; on
a sum over twenty-four hundred dollars, twelve and one-half per cent.; on
all sums arising from the postage on newspapers, magazines, and pamphlets,
fifty per cent.; on the amount of postages on letters or packets received
for distribution, seven per cent.: Provided, That all allowances,
commissions, or other emoluments, shall be subject to the provisions of the
forty-first section of the act which this is intended to amend; and that the
annual compensation therein limited shall be computed for the fiscal year
commencing on the first of July and ending the thirtieth of June each year,
and that for any period less than a year the restrictions contained in said
section shall be held to apply in a due proportion for such fractional
period: And, provided further, That the compensation to any,, deputy
postmaster under the foregoing provisions to be computed upon the receipt at
his office of a larger sum shall in no case fall short of the amount to
which he would be entitled under a smaller sum received at his office.
4. By act of congress approved March 3, 1851, Sec. 6, it is enacted,
That to any postmaster whose commissions may be reduced below the amount
allowed at his office for the year ending the thirtieth day of June,
eighteen hundred and fifty-one, and whose labors may be increased, the
postmaster general shall be authorized, in his discretion, to allow such
additional commissions as be may deem just and proper Provided, That the
whole amount of commissions allowed such postmaster during any fiscal year,
shall not exceed by more than twenty per centum the amount of commissions at
such office for the year ending the thirtieth day of June, eighteen hundred
and fifty-one.
5. Although not subject to all the, responsibilities of a common
carrier, yet a postmaster is liable for all losses and injuries occasioned
by his own default in office. 3 Wils. Rep. 443; Cowp. 754; 5 Burr. 2709; 1
Bell's Com. 468; 2 Kent. Com. 474; Story on Bailm. Sec. 463.
6. Whether a postmaster is liable for the acts of his clerks or
servants seems not to be settled. 1 Bell's Com. 468, 9. In Pennsylvania it
has been decided that he is not responsible for their secret delinquencies,
though perhaps he is answerable for want of attention to the official
conduct of his subordinates. 8 Watts. R. 453. Vide Frank; Post Office.
POSTMASTER GENERAL. The chief officer of the post office department of the
United States. Various duties are imposed upon this officer by the acts of
congress of March 3, 1825, and July 2, 1836, which will be found under the
articles Mail; Post Office and Postage.
2. The act of February 20, 1819, 3 Story's L. U. S. 1720, gives the
postmaster general a salary of four thousand dollars per annum and that of
March 2, 1827, 3 Story's L. U. S. 2076, declares there shall be paid,
annually, to the postmaster general two thousand dollars, in addition to his
present salary.
POST NATI. Born after. This term is applied to persons who came to reside in
tho United States after the declaration of independence. They are generally
considered aliens, unless they become naturalized, or are otherwise so
declared, by law. In Massachusetts, by statutory provision, and in
Connecticut, by decision, a person born abroad, if he went there to reside
before the treaty of peace of the 3d of September, 1783, is considered a
citizen. 2 Pick. R. 394 5 Day, R. 169; 2 Kent, Com. 51, 2.
POSTULATIO, Rom. civ. law. The name given to the first act in a criminal
proceeding. A person who wished to accuse another of a crime, appeared
before the praetor and asked his authority for that purpose, designating the
person intended. This act was called postulatio. The postulant (calumniam
jurabat) made oath that he was not influenced by a spirit of calumny, but
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acted in good faith, with a view to the public interest. The praetor
received this declaration, at, first made verbally, but afterwards in
writing, and called a libel. The postulatio was posted lip in the forum, to
give public notice of the names of the accuser and the accused. A second
accuser sometimes appeared and went through the same formalities.
2. Other persons were allowed to appear and join the postulant or
principal accuser. These were said postulare subscriptionem and were
denominated subscriptores. Cic. in Caecil Divin. 15. But commonly such
persons acted concurrently with the postulant, and inscribed, their names at
the time he first appeared. Only one accuser, however, was allowed to act,
and if the first inscribed did not desist in favor of the second, the right
was determined, after discussion, by judges appointed for the purpose. Cic.
in Vern. I. 6. The preliminary proceeding was called divinatio, and is well
explained, in the oration of Cicero, entitled Divinatio. Bee Aulus Gellius,
Att. Noct. lib. II. cap. 4.
3. The accuser having been determined in this manner, he appeared,
before the praetor, and formally charged the accused by name, specifying the
crime. This was called nominis et criminis, delatio. The magistrate reduced
it to writing, which was called inscriptio, and the accuser and his
adjuncts, if any, signed it, subscribebant. This proceeding corresponds to
the indictment of the common law.
4. If the accused appeared, the accuser formally charged him with the
crime. If the accused confessed it, or stood mute, he was adjudged to pay
the penalty. If he denied it, the inscriptio contained his answer, and he
was then (in reatu) indicted, (as we should say) and was called reus, and a
day was fixed, ordinarily after an interval of at least ten days, according
to the nature of the case, for the appearance of the parties. In the case of
Verres, Cicero obtained one hundred and ten days to prepare his proofs,
although he accomplished it in fifty days, and renounced, as he might do,
the advantage of the remainder of the time allowed him.
5. At the day appointed for the trial the accuser and his adjuncts or
colleagues, the accused, and the judges, were summoned by the herald of the
praetor. If the accuser did not appear, the' case was erased from the roll.
If the accused made default he was condemned. If both parties appeared, a
jury was drawn by the praetor or judex questionis. The jury were called
jurati homines, and the drawing of them sortitio, and they were taken from a
general list made out for the year. Either party had a right to object to a
certain extent to the persons drawn, and then there was a second drawing
called subsortitio, to complete the number.
6. In some tribunals (quaestiones) the jury were (editi) produced in
equal number by the accuser and the accused, and sometimes by the accuser
alone, who were objected to or challenged in different ways, according to
the nature of the case. The number of the jury also varied according to the.
tribunal, (quaestio) they were sworn before the trial began. Hence they were
called jurati.
7. The accusers and often the subscriptores were heard, and afterwards
the accused, either by himself or by his advocates, of whom he commonly had
several. The witnesses, who swore by Jupiter, gave their testimony after the
discussions or during the progress of the pleadings of the accuser. In some
cases it was necessary to plead the cause on the third day following the
first hearing, which was called comperendinatio.
8. After the pleadings were concluded the praetor or the judex
quastionis distributed tablets to the jury, upon which each wrote secretly,
either the letter A (absolvo) or the letter C, (condemno) or N. L. (non
liquet.) These tablets were deposited in an urn. The president assorted and
counted the tablets. If the majority were for acquitting the accused, the
magistrate declared it by the words fecisse non videtur, and by the words
fecisse videtur if the majority were for a conviction. If the tablets marked
N. L. were so many as to prevent an absolute majority for a conviction or
acquittal, the cause was put off for more ample information, ampliatio,
which the praetor declared by the word implies. Such in brief was the course
of proceedings before the quaestiones perpeduae.
9. The forms observed in the comitia centiniata and comitia tributa
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were nearly the same, except the composition of the tribunal, and the mode
of declaring the vote.
10. It is easy to perceive in this account of a criminal action, the
germ of the proceedings on an indictment at common law.
POT-DE-VIN, French law. A sum of money frequently paid, at the moment of
entering into a contract, beyond the price agreed upon.
2. It differs from arrha, (q.v.) in this, that it is no part of the
price of the thing sold, and, that the person who has received it, cannot by
returning double the amount, or the other party by losing what he has paid,
rescind the contract. 18 Toull. n. 52.
POTENTATE. One who has a great power over, an extended country; a sovereign.
2. By the naturalization laws, an alien is required, before he can be
naturalized, to renounce all allegiance and fidelity to any foreign prince,
potentate, state, or sovereign whatever.
POTESTAS, civil law. A Latin word which signifies power; authority;
domination; empire. It has several meaning. 1. It signifies imperium, or the
jurisdiction of magistrates. 2. The power of the father over his children,
patriapotestas. 3. The authority of masters over their slaves, which makes
it nearly synonymous with dominium. See Inst. 1, 9, et 12; Dig. 2, 1, 13, 1;
Id. 14, 1; Id. 14, 4, 1, 4.
POUND, weight. There are two kinds of weights, namely, the troy, and the
avoirdupois. The pound avoirdupois is greater than the troy pound, in the
proportion of seven thousand to five thousand seven hundred and sixty. The
troy pound contains twelve ounces, that of avoirdupois sixteen ounces.
POUND, Eng. law. A place enclosed to keep strayed animals in. 5 Pick. 514; 4
Pick. 258; 9 Pick. 14.
POUND, money. The sum of twenty shillings. Previous to the establishment of
the federal currency,, the different states made use of the pound in
computing money; it was of different value in the several states.
2. Pound sterling, is a denomination of money of Great Britain. It is
of the value of a sovereign. (q.v.) In calculating the rates of duties, the
pound sterling shall be considered and taken as of the value of four dollars
and eighty cents. Apt of March 3, 1833.
3. The pound sterling of Ireland is to be computed, in calculating said
duties, at four dollars and ten cents. Id.
4. The pound of the British provinces Nova Scotia, New Brunswick,
Newfoundland, and Canada, is to be so computed at four dollars. Act of May,
22, 1846.
POUNDAGE, practice. The amount allowed to the sheriff, or other officer, for
commissions on, the money made by virtue of an execution. This allowance
varies in different states, and to different officers.
POURPARLER, French law. The conversations and negotiations which have taken
place between the parties in order to make an agreement. These form no part
of the agreement. Pard. Dr. Com. 142.
2. The general rule in the common law is the same, parol proof cannot,
therefore, be given to contradict, alter, add to, or diminish a written
instrument, except in some particular cases. 1 Dall. 426; Dall. 340; 8 Serg.
& Rawle, 609; 7 Serg. Rawle, 114.
POURSUIVANT. A follower, a pursuer. In the ancient English law, it signified
an officer who attended upon the king in his wars, at the council table,
exchequer, in his court, &e., to be sent as a messenger. A poursuivant was,
therefore, a messenger of the king.
POWER. This is either inherent or derivative. The former is the right,
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ability, or faculty of doing something, without receiving that right,
ability, or faculty from another. The people have the power to establish a
form of government, or to change one already established. A father has the
legal power to chastise his son; a master, his apprentice.
2. Derivative power, which is usually known, by the technical name of
power, is an authority by which one person enables another to do an act for
him. Powers of this kind were well known to the common law, and were divided
into two sorts: naked powers or bare authorities, and powers coupled with an
interest. There is a material difference between them. In the case of the
former, if it be exceeded in the act done, it is entirely void; in the
latter it is good for so much as is within the power, and void for the rest
only.
3. Powers derived from, the doctrine of uses may be defined to be an
authority, enabling a person, through the medium of the statute of uses, to
dispose of an interest, vested either in himself or another person.
4. The New York Revised Statute's define a power to be an authority to
do some act in relation to lands, or the creation of estates therein, or of
charges thereon, which the owner granting or reserving such power might
himself lawfully perform.
5. They are powers of revocation and appointment which are frequently
inserted in conveyances which owe their effect to the statute of uses; when
executed, the uses originally declared cease, and new uses immediately arise
to the persons named in the appointment, to which uses the statute transfers
the legal estate and possession.
6. Powers being found to be much more convenient than conditions, were
generally introduced into family settlements. Although several of these
powers are not usually called powers of revocation, such as powers of
jointuring, leasing, and charging settled estates with the payment of money,
yet all these are powers of revocation, for they operate as revocations, pro
tanto, of the preceding estates. Powers of revocation and appointment may be
reserved either to the original owners of the land or to strangers: hence
the general division of powers into those which relate to the land, and
those which are collateral to it.
7. Powers relating to the land are those given to some person having an
interest in the land over which they are to be exercised. These again are
subdivided into powers appendant and in gross.
8. A power appendant is where a person has an estate in land, with a
power of revocation and appointment, the execution of which falls within the
compass of his estate; as, where a tenant for life has a power of making
leases in possession.
9. A power in gross is where a person has an estate in the land, with a
power of appointment, the execution of which falls out of the compass of his
estate, but, notwithstanding, is annexed in privity to it, and takes effect
in the appointee, out of an interest vested in the appointer; for instance,
where a tenant for life has a power of creating an estate, to commence after
the determination of his own, such as to settle a jointure on his wife, or
to create a term of years to commence after his death, these are called
powers in gross, because the estate of the person to whom they are given,
will not be affected by the execution of them.
10. Powers collateral, are those which are given to mere strangers, who
have no interest in the laud: powers of sale and exchange given to trustees
in a marriage settlement are of this kind. Vide, generally, Powell on
Powers, assim; Sugden on Powers, passim; Cruise, Dig. tit. 32, ch. 13; Vin.
Ab. h.t.; C om. Dig. Poiar; 1 Supp. to Ves. jr. 40, 92, 201, 307; 2 Id. 166,
200; 1 Vern. by Raithby, 406; 3 Stark. Ev. 1199; 4 Kent, Com. 309; 2 Lilly's
Ab. 339; Whart. Dig. h.t. See 1 Story, Eq. Jur. Sec. 169, as to the
execution of a power, and when equity will supply the defect of execution.
11. This classification of powers is admitted to be important only with
reference to the ability of the donee to suspend, extinguish or merge the
power. The general rule is that a power shall not be exercised in derogation
of a prior grant by the appointer. But this whole division of powers has
been condemned' as too artificial and arbitrary.
12. Powell divides powers into general and particular. powers. General
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powers are those to be exercised in favor of any person whom the appointer
chooses. Particular powers are those which are to be exercised in favor of
specific objects. 4 Kent, Com. 311, Vide, Bouv. Inst. Index, h.t.; Mediate
powers; Primary powers.
POWER OF ATTORNEY. Vide Letter of attorney, and 1 Mood. Or. Cas. 57, 58.
POYNING'S LAW, Eng. law. The name usually given to an act which was passed
by a parliament holden in Ireland in the tenth of Henry the Seventh; it
enacts that all statutes made in the realm of England before that time
should be in force and put in use in the realm of Ireland. Irish Stat. 10 H.
VII. c. 22; Co. Litt. 141 b; Harg. n. 3.
PRACTICE. The form, manner and order of conducting and carrying on suits or
prosecutions in the courts through their various stages, according, to the
principles of law, and the rules laid down by the respective courts.
2. By practice is also meant the business which an attorney or
counsellor does; as, A B has a good practice.
3. The books on practice are very numerous; among the most popular are
those Of Tidd, Chitty, Archbold, Sellon, Graham, Dunlap, Caines, Troubat and
Haly, Blake, Impey.
4. A settled, uniform, and loll, continued practice, without objection
is evidence of what the law is, and such practice is based on principles
which are founded in justice and convenience. Buck, 279; 2 Russ. R. 19, 570;
2 Jac. It. 232; 5 T. R. 380; 1 Y. & J. 167, 168; 2 Crompt. & M. 55; Ram on
Judgm. ch. 7.
PRAEDA BELLICA. Lat. Booty; property seized in war. Vide Booty; Prize.
PRAECIPE or PRECIPE, practice. The name of the written instructions given by
an attorney or plaintiff to the clerk or prothonotary of a; court, whose
duty it is to make out the writ, for the making of the same.
PRAEDIAL. That which arises immediately from the ground; as, grain of all
sorts, hay, wood, fruits, herbs, and the like.
PRAEDIUM DOMINANS, civil law. The name given to an estate to which a
servitude is due; it is called the ruling estate.
PRAEDIUM RUSTICUM, civil law. By this is understood all heritages which are
not destined for the use of man's habitation; such, for example, as lands,
meadows, orchards, gardens, woods, even though they should be within the
boundaries of a city.
PRAEDIUM SERVIENS, Civil law. The name of an estate which suffers or yields
a service to another estate.
PRAEDIUM URBANUM, civil law. By this term is understood buildings and
edifices intended for the habitation and use of man, whether they be built
in cities or whether they be constructed in the country.
PRAEFECTUS VIGILUM, Roman civ. law. The chief officer of the night watch.
His jurisdiction extended to certain offences affecting the public peace;
and even to larcenies. But he could inflict only slight punishments.
PRAEMUNIRE. In older to prevent the pope from assuming the supremacy in
granting ecclesiastical livings, a number of statutes were made in England
during the reigns of Edward I., and his successors, punishing certain acts
of submission to the papal authority, therein mentioned. In the writ for the
execution of these statutes, the words praemunire facias, being used, to
command a citation of the party, gave not only to the writ, but to the
offence itself, of maintaining the papal power, the name of praemunire. Co.
Lit. 129; Jacob's L.D. h.t.
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PRAETOR, Roman civil law. A municipal officer of Rome, so called because,
(praeiret populo,) he went before or took precedence of the people. The
consuls were at first called praetors. Liv. Hist. III. 55. He was a sort of
minister of justice, invested with certain legislative powers, especially in
regard to the forms or formalities of legal proceedings. Ordinarily, be aid
not decide causes as a judge, but prepared the grounds of decision for the
judge and sent to, him the questions to be decided between the parties. The
judge was always chosen by the parties, either directly, or by rejecting,
under certain rules and limitations, the persons proposes to them by the
praetor. Hence the saying of Cicero, (pro Cluentis, 43,) that no one could
be judged except by a judge of his own choice. There were several kinds of
officers called proctors. See Vicat, Vocab.
2. Before entering on his functions he published an edict announcing
the system adopted by him for the application and interpretation of the laws
during his magistracy. His authority extended over all jurisdictions, and
was summarily expressed by the word do, dico, addico, i, e. do I give the
action, dico I declare the law, I promulgate the edict, addico I invest the
judge with the right of judging. There were certain cases which he was bound
to decide himself, assisted by a council chosen by himself perhaps the
Decemvirs. But the greater part of causes brought before him, be sent either
to a judge, an arbitrator, or to recuperators, (recuperatores,) or to the
centumvirs, as before stated. Under the empire the powers of the praetor
passed by degrees to the praefect of the praetorium, or the praefect of the
city; so that this magistrate, who at first ranked with the consuls, at last
dwindled into a director or manager of the public spectacles or games.
3. Till lately, there were officers in certain cities of Germany
denominated praetors Vide 1 Kent, Com. 528.
PRAGMATIC SANCTION, French law. This expression is used to designate those
ordinances which concern the most important object of the civil or
ecclesiastical administration. Merl. Repert, h.t.; 1 Fournel, Hist. des
Avocats, 24, 38, 39. 2. In the civil law, the answer given by the emperors
on questions of law, when consulted by a corporation or the citizens of a
province, or of a, municipality, was called a pragmatic sanction. Lecons El.
du Dr. Civ. Rom. Sec. 53. This differed from a rescript. (q.v.)
PRAYER, chanc. pleadings. That part of a bill which asks for relief.
2. The skill of the solicitor is to be exercised in framing this part
of the bill. An accurate specification of the matters to be decreed in
complicated cases, requires great discernment and experience; Coop. Eq. Pl.
13; it is varied as the case is made out, concluding always with a prayer of
general relief, at the discretion of the court. Mitf. Pl. 45.
PRAYER OF PROCESS, chanc. plead. That part of a bill which prays that the
defendant be compelled to appear and answer the bill, and abide the
determination of the court on the subject, is called prayer of process. This
prayer must contain the name's of all Persons who are intended to be made
parties. Coop. Eq. Pl. 16; Story, Eq. Pl. Sec. 44.
PRAYER FOR RELIEF, chan. pleading. This is the name of that part of the
bill, which, as the phrase imports, prays for relief. This prayer is either
general or special but the general course is for the plaintiff to make a
special prayer for particular relief to which he thinks himself entitled,
and then to conclude with a prayer of general relief at the discretion of
the court. Story, Eq. Pl. Sec. 40; 4 Bouv. Inst. n. 4174-6.
PREAMBLE. A preface, an introduction or explanation of what is to follow:
that clause at the head of acts of congress or other legislatures which
explains the reasons why the act is made. Preambles are also frequently put
in contracts to, explain the motives of the contracting parties,
2. A preamble is said to be the key of a statute, to open the minds of
the makers as to the mischiefs which are to be remedied, and the objects
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which are to be accomplished by the provisions of the statutes. It cannot
amount, by implication, to enlarge what is expressly given. 1 Story on
Const. B 3, c. 6. How far a preamble is to be considered evidence of the
facts it recites, see 4 M. & S. 532; 1 Phil. Ev. 239; 2 Russ. on Cr. 720;
and see, generally, Ersk. L. of Scotl. 1, 1, 18; Toull. liv. 3, n. 318; 2
Supp. to Ves. jr. 239; 4 L. R. 55; Barr. on the Stat. 353, 370.
PRECARIOUS RIGHT. The right which the owner of a thing transfers to another,
to enjoy the same until it shall please the owner to revoke it.
2. If there is a time fixed during which the right may be used it is
then vested for that time, and cannot be revoked until after its expiration.
Wolff, Inst. Sec. 833.
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PRE-EMPTION, intern. law. The right of preemption is the right of a nation
to detain the merchandise of strangers passing through her territories or
seas, in order to afford to her subjects the preference of purchase. 1 Chit.
Com. Law, 103; 1 Bl. Com. 287.
2. This right is sometimes regulated by treaty. In that which was made
between the United States and Great Britain, bearing date the 10th day of
November, 1794, ratified in 1795, it was agreed, art. 18, after mentioning
that the usual munitions of war, and also naval materials should be
confiscated as contraband, that "whereas the difficulty of agreeing on
precise cases in which alone provisions and other articles not generally
contraband may be regarded as such, renders it expedient to provide against
the inconveniences and misunderstandings which might thence arise. It is
further agreed that whenever any such articles so being contraband according
to the existing laws of nations, shall for that reason be seized, the same
shall not be confiscated, but the owners thereof shall be speedily and
completely indemnified; and the captors, or in their default, the government
under whose authority they act, shall pay to the masters or owners of such
vessel the full value of all articles, with a reasonable mercantile profit
thereon, together with the freight, and also the damages incident to such
detention." See Mann. Com. B. 3, c. 8.
3. By the laws of the United States the right given to settlers of
public lands, to purchase them in preference to others, is called the
preemption right. See act of L. April 29, 1830, 4 Sharsw. Cont. of Story, U.
S. 2212.
PREFECT, French law. A chief officer invested with the superintendence of
the administration of the laws in each department. Merl. Repert. h.t.
PREMISES. that which is put before. The word has several significations;
sometimes it means the statements which have been before made; as, I act
upon these premises; in this sense, this word may comprise a variety of
subjects, having no connexion among themselves; 1 East, R. 456; it signifies
a formal part of a deed; and it is made to designate an estate.
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PREMISES, estates. Lands and tenements are usually, called premises, when
particularly spoken of; as, the premises will be sold without reserve. 1
East, R. 453.
PREMISES, conveyancing. That part in the beginning of a deed, in which are
set forth the names of the parties, with their titles and additions, and in
which are recited such deeds, agreements, or matters of fact, as are
necessary to explain the reasons upon which the contract then entered into
is founded; and it is here also the consideration on which it is made, is
set down, and the certainty of the thing granted. 2 Bl. Com. 298. The
technical meaning of the premises in a deed, is every thing which precedes
the habendum. 8 Mass. R. 174; 6 Conn. R. 289. Vide Deed.
PREMISES, equity pleading. That part of a bill usually denominated the
stating part of the bill. It contains a narrative of the facts and
circumstances of the plaintiff's case, and the wrongs of which he complains,
and the names of the persons by whom done, and against whom he seeks
redress. Coop. Eq. Pl..9; Bart. Suit in equity, 27; Mitf. Eq. Pl. by Jeremy,
43; Story, Eq. Pl. Sec. 27; 4 Bouv, Inst. n. 4158.
PREMIUM, contracts. The consideration paid by the insured to the insurer for
making an insurance. It is so called because it is paid primo, or before the
contract shall take effect. Poth. h.t. n. 81; Marah. Inst. 234.
2. In practice, however, the premium is not always paid when the policy
is underwritten; for insurances are frequently effected by brokers, and open
accounts are kept between them and the underwriters, in which they make
themselves debtors for all premiums;, and sometimes notes or bills are given
for the amount of the premium.
3. The French writers, when they speak of the consideration given for
maritime loans, employ a variety of words in order to distinguish it
according to the nature of the case. Thus, they call it interest when it is
stipulated to be paid by the month or at other stated periods. It is a
premium, when a gross sum is to be paid at the end of a voyage, and here the
risk is the principal object which they have in view. When the sum is a
percentage on the money lent, they denominate it exchange, considering it in
the light of money lent in one place to be returned in another, with a
difference in amount between the sum borrowed and that which is paid,
arising from the difference of time and place. When they intend to combine
these various shades into one general denomination, they make use of the
term maritime profit, to convey their meaning. Hall on Mar. Loans, 56, n.
Vide Park, Ills. h.t. Poth. h.t.; 3 Kent, Com. 285; 15 East, R. 309, Day's
note, and the cases there cited.
PREMIUM PUDICITIAE, contracts. Literally the price of chastity.
2. This is the consideration of a contract by which a man promises to
pay to a woman with whom he has illicit intercourse a certain sum of money.
When the contract is made as the payment of past cohabitation, as between
the parties, it is good, and will be enforced against the obligor, his
heirs, executors and administrators, but it cannot be paid, on a deficiency
of assets, until all creditors are paid, though it has a preference over the
heir, next of kin, or devisee. If the contract be for future cohabitation,
it is void. Chit. Contr. 215; 1 Story, Eq. Jur. Sec. 296; 5 Ves. 286; 2 P.
Wms. 432; 1 Black. R. 517; 3 Burr. 1568; 1 Fonb. Eq, B. 1, a. 4, Sec. 4, and
notes s and y; 1 Ball & Beat. 360; 7 Ves. 470; 11 Ves. 535; Rob. Fraud.
Conv. 428; Cas. Temp. Talb. 153; and the cases there cited; 6 Ham. R. 21; 5
Cowen, R. 253; Harper, R. 201; 3 Mont. R. 35; 2 Rev. Const. Ct; 279; 11
Mass. R. 368; 2 N. & M. 251.
PRENDER or PRENDRE. To take. This word is used to signify the right of
taking a thing before it is offered,; hence the phrase of law, it lies in
render, but not in prender. Vide A prendre; and Gale and Whatley on
Easements, 1.
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PROENOMEN. The first or Christian name of a person; Benjamin is the
proenomen of Benjamin Franklin. See Cas. temp. Hard. 286; 1 Tayl. 148.
PREPENSE. The same as aforethought. (q.v.) Vide 2 Chit. Cr. Law, *784.
PREROGATIVE, civil law. The privilege, preeminence, or advantage which one
person has over another; thus a person vested with an office, is entitled to
all the rights, privileges, prerogatives, &c. which belong to it.
PREROGATIVE, English law. The royal prerogative is an arbitrary power vested
in the executive to do good and not evil. Rutherf. Inst. 279; Co. Litt. 90;
Chit. on Prerog.; Bac. Ab. h.t.
PREROGATIVE COURT, eccl. law. The name of a court in England in which all
testaments are proved and administrations granted, when the deceased has
left bona notabilia in the province in some other diocese than that in which
he died. 4 Inst. 335.
2. The testamentary courts of the two archbishops, in their respective
provinces, are styled prerogative courts, from the prerogative of each
archbishop to grant probates and administrations, where there are bona,
notabilia; but still these are only inferior and subordinate jurisdictions;
and the style of these courts has no connexion with the royal prerogative.
Derivatively, these courts are the king's ecclesiastical courts; but
immediately, they are only the courts of the ecclesiastical ordinary. The
ordinary, and not the crown, appoints the judges of these courts; they are
subject to the control of the king's courts of chancery and common law, in
case they exceed their jurisdiction; and they are subject in some instances
to the command of these courts, if they decline to exercise their
jurisdiction, when by law they ought to exercise it. Per Sir John Nicholl,
In the Goods of George III.; 1 Addams, R. 265; S. C. 2 Eng. Eccl. R. 112.
PRESCRIPTIBLE. That which is subject to prescription.
PRESCRIPTION. The manner of acquiring property by a long, honest, and
uninterrupted possession or use during the time required by law. The
possession must have been possessio longa, continua, et pacifica, nec sit
ligitima interruptio, long, continued, peaceable, and without lawful
interruption. Domat, Loix Civ. liv. 3, t. 29, s. 1; Bract. 52, 222, 226; Co.
Litt. 113, b; Pour pouvoir prescire, says the Code Civil, 1. 3, t. 20, art.
22, 29, il faut une possession continue et non interrompue, paisible,
publique, et a titre de proprietaire. See Knapp's R. 79.
2. The law presumes a grant before the time of legal memory when the
party claiming by prescription, or those from whom he holds, have had
adverse or uninterrupted possession of the property or rights claimed by
prescription. This presumption may be a mere fiction, the commencement of
the user being tortious; no prescription can, however, be sustained, which
is not consistent with such a presumption.
3. Twenty years uninterrupted user of a way is prima facie evidence of
a prescriptive right. 1 Saund. 323, a; 10 East, 476; 2 Br. & Bing. 403;
Cowp. 215; 2 Wils. 53. The subject of prescription are the several kinds of
incorporeal rights. Vide, generally, 2 Chit. Bl. 35, n. 24; Amer. Jurist,
No. 37, p. 96; 17 Vin. Ab. 256; 7 com. Dig. 93; Rutherf. Inst. 63; Co. Litt.
113; 2 Conn. R. 584; 9 conn. R. 162; Bouv. Inst. Index, h.t.
4. The Civil Code Louisiana, art. 3420, defines a prescription to be a
manner of acquiring property, or of discharging debts, by the effect of
time, and under the conditions regulated by law. For the law relating to
prescription in that state, see Code, art. 8420 to 3521. For the difference
between the meaning of the term prescription as understood by the common
law, and the same term in the civil law, see 1 Bro. Civ. Law, 246.
5. The prescription which has the effect to liberate a creditor, is a
mere bar which the debtor may oppose to the creditor, who has neglected to
exercise his rights, or procured them to be acknowledged during the time
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prescribed by law. The debtor acquires this right without any act on his
part, it results entirely from the negligence of the creditor. The
prescription does not extinguish the debt, it merely places a bar in the
hands of the debtor, which he may use or not at his choice against the
creditor. The debtor may therefore abandon this defence, which has been
acquired by mere lapse of time, either by paying the debt, or acknowledging
it. If he pay it, he cannot recover back the money so paid, and if he
acknowledge it, he may be constrained to pay it. Poth. Intr. au titre xiv.
des Prescriptions, Bect. 2. Vide Bouv. Inst. Theo. pars prima, c. 1, art. 1,
Sec. 4, s. 3; Limitations.
PRESENCE. The existence of a person in a particular place.
2. In many contracts and judicial proceedings it is necessary that the
parties should be present in order to reader them valid; for example, a
party to a deed when it is executed by himself, must personally acknowledge
it, when such acknowledgment is required by law, to give it its full force
and effect, and his presence is indispensable, unless, indeed, another
person represent him as his attorney, having authority from him for that
purpose.
3. In the criminal law, presence is actual or constructive. When a
larceny is committed in a house by two men, united in the same design, and
one of them goes into the house, arid commits the crime, while the other is
on the outside watching to prevent a surprise, the former is actually, an
the latter constructively, present.
4. It is a rule in the civil law, that he who is incapable of giving
his consent to an act, is not to be considered present, although he be
actually in the place; a lunatic, or a man sleeping, would not therefore be
considered present. Dig. 41, 2, 1, 3. And so, if insensible; 1 Dougl. 241; 4
Bro. P. R. 71; 3 Russ. 441; or if the act were done secretly so that he knew
nothing of it. 1 P. Wms. 740.
5. The English statute of fraud, Sec. 5, directs that all devises and
bequests of any lands or tenements shall be attested or subscribed in the
presence of said devisor. Under this statute it has been decided that an
actual presence is not indispensable, but that where there was a
constructive presence it was sufficient; as, where the testatrix executed
the will in her carriage standing in the street before the office of her
solicitor, the witness retired into the office to attest it, and it being
proved that the carriage was accidentally put back, so that she was in a
situation to see the witness sign the will through the window of the office.
Bro. Ch. C. 98; see 2 Curt. R. 320; 2 Salk. 688; 3 Russ. R. 441; 1 Maule &
Selw. 294; 2 Car.& P. 491 2 Curt. R. 331. Vide Constructive.
PRESENT. A gift, or wore properly the thing given. It is provided by the
constitution of the United States, art. 1, s. 9, n, 7, that "no person
holding any office of profit or trust under them, [the United States] shall,
without the consent of congress, accept of any present, emolument, or
office, or title of any kind whatever, from any king, prince, or foreign
state."
PRESENTS. This word signifies the writing then actually made and spoken of;
as, these presents; know all men by these presents, to all to whom these
presents shall come.
PRESENTATION, eccl. law. The act of a patron offering his clerk to the
bishop of the diocese to be instituted in a church or benefice.
PRESENTEE, eccl. law., A clerk who has been presented by his patron to a
bishop in order to be instituted in a church.
PRESENTMENT, crim. law, practice. The written notice taken by a grand jury
of any offence, from their own knowledge or observation, without any bill of
indictment laid before them at the suit of the government; 4 Bl. Com. 301;
upon such presentment, when 'proper, the officer employed to prosecute,
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afterwards frames a till of indictment, which is then sent to the grand
jury, and they find it to be a true bill. In an extended sense presentments
include not only what is properly so called, but also inquisitions of
office, and indictments found by a grand jury. 2 Hawk. c. 25, s. 1.
2. The difference between a presentment and an inquisition, (q.v.) is
this, that the former is found by a grand jury authorized to inquire of
offences generally, whereas the latter is an accusation found by a jury
specially returned to inquire concerning the particular offence. 2 Hawk. c.
25, s. 6. Vide, generally, Com. Dig. Indictment, B Bac. Ab. Indictment, A 1
Chit. Cr. Law, 163; 7 East, R. 387 1 Meigs. 112; 11 Humph. 12.
3. The writing which contains the accusation so presented by a grand
jury, is also called a presentment. Vide 1 Brock. C. C. R. 156; Grand Jury.
PRETEXT. The reasons assigned to justify an act, which have only the
appearance of truth, and which are without foundation; or which if true are
not the true reasons for such act. Vattel, liv. 3, c. 3, 32.
PRETIUM AFFECTIONIS. An imaginary value put upon a thing by the fancy of the
owner in his affection for it, or for the person from whom he obtained it.
Bell's Dict. h.t.
2. When an injury has been done to an article, it has been questioned
whether in estimating the damage there is any just ground in any case, for
admitting the pretium affectionis? It seems that when the injury has been
done accidentally by culpable negligence, such an estimation of damages
would be unjust, but when the mischief has been intentional, it ought to be
so admitted. Kames on Eq. 74, 75.
PREVARICATION. Praevaricatio, civil law. The acting with unfaithfulness and
want of probity. The term is applied principally to the act of concealing a
crime. Dig. 47, 15, 6.
PREVENTION, civil and French law. The right of a judge to take cognizance of
an action over which he has concurrent jurisdiction with another judge.
2. In Pennsylvania it has been ruled that a justice of the peace cannot
take cognizance of a cause which has been previously decided by another
justice. 2 Dall. 77; Id. 114.
PRICE, contracts. The consideration in money given for the purchase of a
thing.
2. There are three requisites to the quality of a price in order to
make a sale.
3.-1. It must be serious, and such as may be demanded: if, therefore, a
person were to sell me an article, and by the agreement, reduced to writing,
he were to release me from the payment, the transaction would no longer be a
sale, but a gift, Poth. Vente, n. 18.
4.-2. The second quality of a price is, that the price be certain and
determinate; but what may be rendered certain is considered as certain if,
therefore, I sell a thing at a price to be fixed by a third person, this is
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sufficiently certain, provided the third person make a valuation and fix the
price. Poth. Vente, n. 23, 24.
5.-3. The third quality of a price is, that it consists in money, to be
paid down, or at a future time, for if it be of any thing else, it will no
longer be a price, nor the contract a sale, but exchange or barter. Poth.
Vente, n. 30; 16 Toull. n. 147.
6. The true price of a thing is that for which things of a like nature
and quality are usually sold in the place where situated, if real property;
or in the place where exposed to sale, if personal. Poth. Contr. de Vente,
n. 243. The first price or cost of a thing does not always afford a sure
criterion of its value. It may have been bought very dear or very cheap.
Marsh. Ins. 620, et seq.; Ayliffe's Pand. 447; Merlin, Repert. h.t.; 4 Pick.
179; 8 Pick. 252; 16 Pick. 227.
7. In a declaration in trover it is usual, when the chattel found is a
living one, to lay it as of such a price when dead, of such a value. 8
Wentw. Pl. 372, n; 2 Lilly's Ab. 629. Vide Bouv. Inst. Index, h.t.;
Adjustment; Inadequacy of price; Pretium affectionis.
PRICE CURRENT. The price for which goods, usually sell in the market. A
printed newspaper containing a list of such prices is also called a price
current.
PRIMA FACIE. The first blush; the first view or appearance of the business;
as, the holder of a bill of exchange, indorsed in blank, is prima facie its
owner.
2. Prima facie evidence of a fact, is in law sufficient to establish
the fact, unless rebutted. 6 Pet. R. 622, 632; 14 Pet. R. 334. See,
generally, 7 J. J. Marsh, 425; 3 N. H. Rep. 484; 3 Stew. & Port. 267; 5
Rand. 701; 1 Pick. 332; 1 South. 77; 1 Yeates, 347; Gilp. 147; 2 N. &
McCord, 320; 1 Miss. 334; 11 Conn. 95; 2 Root, 286; 16 John. 66, 136; 1
Bailey, 174: 2 A. K. Marsh. 244. For example, when buildings are fired by
sparks emitted from a locomotive engine passing along the road, it is prima
facie evidence of negligence on the part of those who have the charge of it.
3 Man. Gr. & Sc. 229.
PRIMA TONSURA. A grant of a right to have the first crop of grass. 1 Chit.
Pr. 181.
PRIMAGE, merc. law. A duty payable to the master and mariner of a ship or
vessel; to the master for the use of his cables and ropes to discharge the
goods of the merchant; to the mariners for lading and unlading in any port
or haven. Merch. Dict. h.t.; Abb. on Ship. 270.
2. This payment appears to be of very ancient date, and to be variously
regulated in different voyages and trades. It is sometimes called the
master's hat money. 3 Chit. Com. Law, 431.
PRIMARY. That which is first or principal; as primary evidence, or that
evidence which is to be admitted in the first instance, as distinguished
from secondary evidence, which is allowed only when primary evidence cannot
be had.
2. A primary obligation is one which is the principal object of the
contract; for example, the primary obligation of the seller is to deliver
the thing sold, and to transfer the title to it. It is distinguished from
the accessory or secondary obligation to pay damages for not doing so. 1
Bouv. Inst. n. 702.
PRIMARY EVIDENCE. The best evidence of which the case in its nature is
susceptible. 3 Bouv. Inst. n. 3053. Vide Evidence.
PRIMARY POWERS. The principal authority given by a principal to his agent;
it differs from mediate powers. (q.v.) Story, Ag. Sec. 58.
PRIMATE, eccl. law.. An archbishop who has jurisdiction over one or several
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other metropolitans.
PRIMER ELECTION. A term used to signify first choice.
2. In England, when coparcenary lands are divided, unless it is
otherwise agreed, the eldest sister has the first choice of the purparts;
this part is called the enitia pars. (q.v.) Sometimes the oldest sister
makes the partition, and in that case, to prevent partiality, she takes the
last choice. Hob. 107; Litt. Sec. 243, 244, 245; Bac. Ab. Coparceners, C.
PRIMER SEISIN, Eng. law. The right which the king had, when any of his
tenants died seised of a knight's fee, to receive of the heir, provided he
were of fall age, one whole year's profits of the lands, if they were in
immediate possession; and half a year's profits, if the lands were in
reversion, expectant on an estate for life. 2 Bl. Com. 66.
PRIMOGENITURE. The state of being first born the eldest.
2. Formerly primogeniture gave a title in cases of descent to the
oldest son in preference to the other children; this unjust distinction has
been generally abolished in the United States.
PRIMOGENITUS. The first born. 1 Ves. 290 and see 3 M. & S. 25; 8 Taunt. 468;
3 Vern. 660.
PRIMUM DECRETUM. In the courts of admiralty, this name is given to a
provisional decree. Bac. Ab. The Court of Admiralty, E.
PRINCE. In a general sense, a sovereign the ruler of a nation or state. The
son of a king or emperor, or the issue of a royal family; as, princes of the
blood. The chief of any body of men.
2. By a clause inserted in policies of insurance, the insurer is liable
for all losses occasioned by "arrest or detainment of all kings, princes,
and people, of what nation, condition, or quality soever." 1 Bouv. Inst. n.
1218.
PRINCIPAL. This word has several meanings. It is used in opposition to
accessary, to show the degree of crime committed by two persons; thus, we
say, the principal is more guilty than the accessary after the fact.
2. In estates, principal is used as opposed to incident or accessory;
as in the following rule: "the incident shall pass by the grant of the
principal, but not the principal by the grant of the incident. Accessorium
non ducit, sed sequitur suum principale." Co. Litt. 152, a.
3. It is used in opposition to agent, and in this sense it signifies
that the principal is the prime mover.
4. It is used in opposition to interest; as, the principal being
secured tho interest will follow.
5. It is used also in opposition to surety; thus, we say the principal
is answerable before the surety.
6. Principal is used also to denote the more important; as, the
principal person.
7. In the English law, the chief person in some of the inns of chancery
is called principal of the house. Principal is also used to designate the
best of many things as, the best bed, the best table, and the like.
PRINCIPAL, contracts. One who, being competent to contract, and who is sui
juris, employs another to do any act for his own benefit, or on his own
account.
2. As a general rule, it may be said, that every person, sui juris, is
capable of being a principal, for in all cases where a man has power as
owner, or in his own right to do anything, he may do it by another. 16 John.
86; 9 Co. 75; Com. Dig. Attorney, C 1; Heinec. ad Pand. P. 1, lib. 3, tit.
Sec. 424.
3. Married women, and persons who are deprived of understanding, as
idiots, lunatics, and others, not sui juris, are wholly incapable of
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entering into any contract, and, consequently, cannot appoint an agent.
Infants and married women are generally, incapable but, under special
circumstances, they may make such appointments. For instance, an infant may
make an attorney, when it is for his benefit; but lie cannot enter into any
contract which is to his prejudice. Com. Dig. Enfant, C 2; Perk. 13; 9 Co.
75; 3 Burr. 1804. A married woman cannot, in general, appoint an agent or
attorney, and when it is requisite that one should be appointed, the husband
generally appoints for both. Perhaps for her separate property she may, with
her husband, appoint an agent or attorney; Cro. Car. 165,; 2 Leon. 200; 2
Bulst. R. 13; but this seems to be doubted. Cro. Jac. 617; Yelv. 1; 1
Brownl. 134; 2 Brownl. 248; Adams' Ej. 174; Runn. Ej. 148.
4. A principal has rights which he can enforce, and is liable to
obligations which he must perform. These will be briefly considered: 1. The
rights to which principals are entitled arise from obligations due to them
by their agents, or by third persons.
5.-1st. The rights against their agents, are, 1. To call them to an
account at all times, in relation to the business of their agency. 2. When
the agent violates his obligations to his principal, either by exceeding his
authority, or by positive misconduct, or by mere negligence or omissions in
the discharge of the functions of his agency, or in any other manner, and
any loss or damage falls on his principal, the latter will be entitled to
full indemnity. Paley on Ag. by Lloyd, 7, 71, 74, and note 2 12 Pick. 328; 1
B. & Adolph. 415; 1 Liverm. Ag. 398. 3. The principal has a right to
supersede his agent, where each may maintain a suit against a third person,
by suing in his own name; and he may, by his own intervention, intercept,
suspend, or extinguish the right of the agent under the contract. Paley Ag.
by Lloyd, 362; 7 Taunt. 237, 243; 1 M. & S. 576 1 Liverm. Ag. 226-228; 2 W.
C. C. R. 283; 3 Chit. Com. Law, 201-203.
6.-2d. The principal's rights against third persons. 1. When a contract
is made by the agent with a third person in the name of his principal, the
latter may enforce it by action. But to this rule there are some exceptions
1st. When the instrument is under seal, and it has been exclusively made
between the agent and the third person; as, for example, a charter party or
bottomry bond in this case the principal cannot sue on it. See 1 Paine, Cir.
R. 252; 3 W. C. C. R. 560; 1 M. &. S. 573; Abbott, Ship, pt. 3, c. 1, s. 2.
2d. When an exclusive credit is given to and by the agent, and therefore the
principal cannot be considered in any manner a party to the contract,
although he may have authorized it, and be entitled to all the benefits
arising from it. The case of a foreign factor, buying or selling goods, is
an example of this kind: he is treated as between himself and the other
party, as the sole contractor, and the real principal cannot sue or be sued
on the contract. This, it has been well observed, is a general rule of
commercial law, founded upon the known usage of trade; and it is strictly
adhered to for the safety and convenience of foreign commerce. Story, Ag.
Sec. 423; Smith Mer. Law, 66; 15 East, R. 62; 9 B. & C. 87. 3d. When the
agent, has a lien or claim upon the property bought or sold, or upon its
proceeds, when it equals or exceeds the amount of its value. Story, Ag. Sec.
407, 408, 424.
7.-2. But contracts are not unfrequently made without mentioning the
name of the principal; in such case he may avail himself of the agreement,
for the contract will be treated as that of the principal, as well as of the
agent. Story, Ag. Sec. 109, 111, 403, 410, 417, 440; Paley, Ag. by Lloyd,
21, 22; Marsh. Ins. b. 1, c. 8, Sec. 3, p. 311; 2 Kent's Com. 3d edit. 630;
3 Chit. Com. Law, 201; vide 1 Paine's C. C. Rep. 252.
8.-3. Third persons are also liable to the principal for any tort or
injury done to his property or rights in the course of the agency. Pal. Ag.
by Lloyd, 363; Story, Ag. Sec. 436; 3 Chit. Com. Law, 205, 206; 15 East, R.
38.
9.-2. The liabilities of the principal are either to his agent or to
third persons.
10.-1st. The liabilities of the principal to his agent, are, 1. To
reimburse him all expenses he may have lawfully incurred about the agency.
Story, Ag. Sec. 335 Story, Bailm. Sec. 196, 197; 2 Liv. Ag. 11 to 33.
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2. To pay him his commissions as agreed upon, or according to the usage
of trade, except in cases of gratuitous agency. Story, Ag. Sec. 323; Story,
Bailm. 153, 154, 196 to 201. 3. To indemnify the agent when he has sustained
damages in consequence of the principal's conduct for example, when the
agent has innocently sold the goods of a third person, under the direction
or authority of his principal, and a third person recovers damages against
the agent, the latter will be entitled to reimbursement from the principal.
Pal. Ag. by Lloyd, 152, 301; 2 John. Cas. 54; 17 John. 142; 14 Pick. 174.
11.-2d. The liabilities of the principal to third persons, are, 1. To
fulfill all the engagements made by the agent, for or in the name of the
principal, and which come within the scope of his authority. Story, Ag. Sec.
126.
2. When a man stands by and permits another to do an act in his name,
his authority will be presumed. Vide Authority, and 2 Kent, Com. 3d edit.
614; Story, Ag. Sec. 89, 90, 91; and articles Assent; Consent.
3. The principal is liable to third persons for the misfeasance,
negligence, or omission of duty of his agent; but he has a remedy over
against the agent, when the injury has occurred in consequence of his
misconduct or culpable neglect; Story, Ag. Sec. 308; Paley, Ag. by Lloyd,
152, 3; 1 Metc. 560; 1 B. Mont. 292; 5 B. Monr. 25; 9 W. & S. 72; 8 Pick.
23; 6 Gill & John. 292; 4 Q. B. 298; 1 Hare & Wall. Sel. Dee. 467; Dudl. So.
Car. R. 265, 268; 5 Humph. 397; 2 Murph. 389; 1 Ired. 240; but the principal
is not liable for torts committed by the agent without authority. 5 Humph.
397; 2 Murph. 389; 19 Wend. 343; 2 Metc. 853. A principal is also liable
for the misconduct of a sub-agent, when retained by his direction, either
express or implied. 1 B. & P. 404; 15 East, 66.
12. The general, rule, that a principal cannot be charged with injuries
committed by his agent without his assent, admits of one exception, for
reasons of policy. A sheriff is liable, even under a penal statute, for all
injurious acts, willful or negligent, done by his appointed officers, colore
officii, when charged and deputed by him to execute the law. The sheriff is,
therefore, liable where his deputy wrongfully executes a writ; Dougl. 40; or
where he takes illegal fees. 2 E. N. P. C. 585.
13. But the principal may be liable for his agent's misconduct, when he
has agreed, either expressly or by implication, to be so liable. 8 T. R.
531; 2 Cas. N. P. C. 42. Vide Bouv. Inst. Index, h.t.; Agency; Agent.
PRINCIPAL, crim. law. A principal is one who is the actor in the commission
of a crime.
2. Principals are of two kinds; namely, 1. Principals in the first
degree, are those who have actually with their own hands committed the fact,
or have committed it through an innocent agent incapable himself, of doing
so; as an example of the latter kind, may be mentioned the case of a person
who incites a child wanting discretion, or a person non compos, to the
commission of murder, or any other crime, the incitor, though absent, when
the crime was committed, is, ex necessitate, liable for the acts of his
agent and is a principal in the first degree. Fost. 340; 1 East, P. C. 118;
1 Hawk. c. 31, s. 7; 1 N. R. 92; 2 Leach, 978. It is not requisite that each
of the principals should be present at the entire transaction. 2 East, P. C.
767. For example, where several persons agree to forge an instrument, and
each performs some part of the forgery in pursuance of the common plan, each
is principal in the forgery, although one may be away when it is signed. R.
& R. C. C. 304; Mo. C. C. 304, 307.
3.-2. Principals in the second degree, are those who were present
aiding and abetting the commission of the fact. They are generally termed
aiders and abettors, and sometimes, improperly, accomplices. (q.v.) The
presence which is required in order to make a man principal in the second
degree, need not be a strict actual, immediate presence, such a presence as
would make him an eye or ear witness of what passes, but may be a
constructive presence. It must be such as may be sufficient to afford aid
and assistance to the principal in the first degree. 9 Pick. R. 496; 1
Russell, 21; Foster, 350.
4. It is evident from the definition that to make a wan a principal, he
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must be an actor in the commission of the crime and, therefore, if a man
happen merely to be present when a felony is committed without taking any
part in it or aiding those who do, he will not, for that reason, be
considered a principal. 1 Hale, P. C. 439; Foster, 350.
PRINCIPAL CONTRACT. One entered into by both parties, on their own accounts,
or in the several qualities they assume. It differs from an accessory
contract. (q.v.) Vide Contract.
PRINCIPAL OBLIGATION. That obligation which arises from the principal object
of the engagement which has been contracted between the parties. It differs
from an accessory obligation. (q.v.) For example, in the sale of a horse,
the principal obligation of the seller is to deliver the horse; the
obligation to take care of him till delivered is an accessory engagement.
Poth. Obl. n. 182. By principal obligation is also understood tho engagement
of one who becomes bound for himself and not for the benefit of another.
Poth. Obl. n. 186.
PRINCIPLES. By this term is understood truths or propositions so clear that
they cannot be proved nor contradicted, unless by propositions which are
still clearer. They are of two kinds, one when the principle is universal,
and these are known as axioms or maxims; as, no one can transmit rights
which he has not; the accessory follows the principal, &c. The other class
are simply called first principles. These principles have known marks by
which they may always be recognized. These are, 1. That they are so clear
that they cannot be proved by anterior and more manifest truths. 2, That
they are almost universally received. 3. That they are so strongly impressed
on our minds that we conform ourselves to them, whatever may be our avowed
opinions.
2. First principles have their source in the sentiment of our own
existence, and that which is in the nature of things. A principle of law is
a rule or axiom which is founded in the nature of the subject, and it exists
before it is expressed in the form of a rule. Domat, Lois Civiles, liv.
prel. t. 1, s. 2 Toull. tit. prel. n. 17. The right to defend one's self,
continues as long as an unjust attack, was a principle before it was ever
decides by a court, so that a court does Dot establish but recognize
principles of law.
3. In physics, by principle is understood that which constitutes the
essence of a body, or its constituent parts. 8 T. R. 107. See 2 H. Bl. 478.
Taken in this sense, a principle cannot be patented; but when by the
principle of a machine is meant the modus operandi, the peculiar device or
manner of producing any given effect, the application of the principle may
be patented. 1 Mason, 470; 1 Gallis, 478; Fessend. on Pat. 130; Phil. on
Pat. 95, 101; Perpigna, Manuel des Inventeurs, &c., c. 2, s. 1.
PRINTING. The art of impressing letters; the art of making books or papers
by impressing legible characters.
2. The right to print is guaranteed by law, and the abuse of the right
renders the guilty person liable to punishment. See Libel,; Liberty of the
Press; Press.
PRIORITY. Going before; opposed to posteriority. (q.v.)
2. He who has the precedency in time has the advantage in right, is the
maxim of the law; not that time, considered barely in itself, can make any
such difference, but because the whole power over a thing being secured to
one person, this bars all others from obtaining a title to it afterwards. 1
Fonb. Eq. 320.
3. In the payment of debts, the United States are entitled to priority
when the debtor is insolvent, or dies and leaves an insolvent estate. The
priority was declared to extend to cases in which the insolvent debtor had
made a voluntary assignment of all his property, or in which his effects had
been attached as an absconding or absent debtor, on which an act of legal
bankruptcy had been committed. 1 Kent, Com. 243; 1 Law Intell. 219, 251; and
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the cases there cited.
4. Among common creditors, he who has the oldest lien has the
preference; it being a maxim both of law and equity, qui prior est tempore,
potior est jure. 2 John. Ch. R. 608. Vide Insolvency; and Serg. Const. La*,
Index, h.t.
PRISAGE. The name of an ancient duty taken by the English crown on wines
imported into England. Bac. Ab. Smuggling and Customs, C. 2; Harg. L. Tr.
75.
PRISON. A legal prison is the building designated by law, or used by the
sheriff, for the confinement, or detention of those whose persons are
judicially ordered to be kept in custody. But in cases of necessity, the
sheriff may make his own house, or any other place, a prison. 6 John. R. 22.
2. An illegal prison is one not authorized by law, but established by
private authority; when the confinement is illegal, every place where the
party is arrested is a prison; as, the street, if he be detained in passing
along. 4 Com. Dig. 619; 2 Hawk. P. C. c. 18, s. 4; 1 Buss. Cr. 378; 2 Inst.
589.
PRISON BREAKING. The act by which a prisoner, by force and violence, escapes
from a place where he is lawfully in custody. This is an offence at common
law.
2. To constitute this offence, there must be, 1. A lawful commitment of
the prisoner; vide Regular and Irregular process. 2. An actual breach with
force and violence of the prison, (q.v.) by the prisoner himself or by
others with his privity and procurement. Russ. & Ry. 458; 1 Russ. Cr. 380.
3. The prisoner must escape. 2 Hawk. P. C. c. 18, s. 12; vide 1 Hale P. C.
607; 4 Bl. Com. 130; 2 Insts. 500; 2 Swift's Dig. 327; Alis. Prin. 555;
Dalloz, Dict. mot Effraction.
PRISONER One held in confinement against his will.
2. Prisoners are of two kinds, those lawfully confined, and those
unlawfully imprisoned.
3. Lawful prisoners are either prisoners charged with crimes, or for a
civil liability. Those charged with crimes are either persons accused and
not tried, and these are considered innocent, and are therefore entitled to
be treated with as little severity as possible, consistently with the
certain detention of their persons; they are entitled to their discharge on
bail, except in capital cases, when the proof is great; or those who have
been convicted of crimes, whose imprisonment, and the mode of treatment they
experience, is intended as a punishment, these are to be treated agreeably
to the requisitions of the law, and in the United States, always with
humanity. Vide Penitentiary. Prisoners in civil cases, are persons arrested
on original or mesne process, and these may generally be discharged on bail;
and prisoners in execution, who cannot be discharged, except under the
insolvent laws.
4. Persons unlawfully confined, are those who are not detained by
virtue of some lawful, judicial, legislative; or other proceeding. They are
entitled to their immediate discharge on habeas corpus. For the effect of a
contract entered into by a prisoner, see 1 Salk. 402, n.; 6 Toull. 82.
5. By tho resolution. of congress, of September 23, 1789, it was
recommended to the legislatures of the several states, to pass laws, making
it expressly the duty of the keepers of those jails to receive and safely
keep therein, all persons committed under the authority of the United
States, until they shall be discharged by due course of the laws thereof,
under the like penalties as in the case of prisoners committed under the
authority of such states respectively. And by the resolution of March 3,
1791, it is provided, that if any state shall not have complied with the
above recommendation the marshal in such state, under the direction of the
judge of the district, shall be authorized to hire a convenient place to
serve as a temporary jail. See 9 Cranch, R. 80.
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PRISONER OF WAR. One who has been captured while fighting under the banner
of some state. He is a prisoner, although never confined in a prison.
2. In modern times, prisoners are treated with more humanity than
formerly; the individual captor has now no personal right to his prisoner.
Prisoners are under the superintendence of the government, and they are now
frequently exchanged. Vide 1 Kent, Com. 14.
3. It is a general rule, that a prisoner is out of the protection of
the laws of the state, so for, that he can have no civil remedy under them,
and he can, therefore, maintain no action. But his person is protected
against all unlawful acts. Bac. Ab. Abatement, b. 3; Bac. Ab. Aliens, D.
PRIVATE. Not general, as a private act of the legislature; not in office;
as, a private person, as well as an officer, may arrest a felon; individual,
as your private interest; not public, as a private way, a private nuisance.
PRIVATEER war. A vessel owned by one or by a society of private individuals,
armed and equipped at his or their expense, for the purpose of carrying on a
maritime war, by the authority of one of the belligerent parties.
2. For the purpose of encouraging the owners of private armed vessels,
they are usually allowed to appropriate to themselves the property they
capture, or, at least, a large proportion of it. 1 Kent, Com. 96; Posh. du
Dr. de Propr. n. 90 et seq. See 2 Dall. 36; 3 Dall. 334; 4 Cranch, 2; 1
Wheat. 46; 3 Wheat. 546; 2 Gall. R. 19; Id. 526; 1 Mason, R. 365 3 Wash. C.
C. R. 209 2 Gall. R. 56; 5 Wheat. 338; Mann. Com. 1.16.
PRIVEMENT ENCEINTE. This term is used to signify that a woman is pregnant,
but not quick with child; (q.v.) and vide Wood's Inst. 662; Enceinte;
Foetus; Pregnancy.
PRIVIES. Persons who are partakers, or have an interest in any action or
thing, or any relation to another. Wood, Inst. b. 2, c. 3, p. 255; 2 Tho.
Co. Lit. 506 Co. Lit. 271, a.
2. There aye several kinds of privies, namely, privies in blood, as the
heir is to the ancestor; privies in representation, as is the executor or
administrator to the deceased privies in estate, as the relation between the
donor and donee, lessor and lessee; privies in respect to contracts; and
privies on account of estate and contract together. Tho. Co. Lit. 506;
Prest. Con v. 327 to 345. Privies have also been divided into privies in
fact, and privies in law. 8 Co. 42 b. Vide Vin. Ab. Privily; 5 Coin. Dig.
347; Ham. on Part. 131; Woodf. Land. & Ten. 279, 1 Dane's Ab. c. 1, art. 6.
PRIVILEGE, civil law. A right which the nature of a debt gives to a
creditor, and which entitles him to be preferred before other creditors.
Louis. Code, art. 3153; Dict. de Juris. art. Privilege: Domat, Lois Civ.
liv. 2, t. 1, s. 4, n. 1.
2. Creditors of the same rank of privileges, are paid in concurrence,
that is, on an equal footing. Privileges may exist either in movables, or
immovables, or both at once. They are general or special, on certain
movables. The debts which are privileged on all the movables in general, are
the following, which are paid in this order. 1. Funeral charges. 2. Law
charges, which are such as are occasioned by the prosecution of a suit
before the courts. But this name applies more particularly to costs, which
the party cast has to pay to the party gaining the cause. It is in favor of
these only that the law grants the privilege. 3. Charges, of whatever
nature, occasioned by the last sickness, concurrently among those to whom
they are due; see Last sickness. 4. The wages of servants for the year past,
and so much as is due for the current year. 5. Supplies of provisions made
to the debtor or his family during the last six months, by retail dealers,
such as bakers, butchers, grocers; and during the last year by keepers of
boarding houses and taverns. 6. The salaries of clerks, secretaries, and
other persons of that kind. 7. Dotal rights, due to wives by their husbands.
3. The debts which are privileged on particular movables, are, 1. The
debt of a workman or artisan for the price of his labor, on the movable
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which he has repaired, or made, if the thing continues still in his
possession. 2. That debt on the pledge which is in the creditor's
possession. 3. The carrier's charges and accessory expenses on the thing
carried. 4. The price due on movable effects, if they are yet in the
possession of the purchaser; and the like. See Lien.
4. Creditors have a privilege on immovables, or real estate in some,
cases, of which the following are instances: 1. The vendor on the estate by
him sold, for the payment of the price, or so much of it as is due whether
it be sold on or without a credit. 2. Architects and undertakers,
bricklayers and other workmen employed in constructing, rebuilding or
repairing houses, buildings, or making other works on such houses,
buildings, or works by them constructed, rebuilt or repaired. 3. Those who
have supplied the owner with materials for the construction or repair of an
edifice or other work, which he has erected or repaired out of these
materials, on the edifice or other work constructed or repaired. Louis.
Code, art. 3216. See, generally, as to privilege. Louis. Code, tit. 21; Code
Civ. tit. 18; Dict. de Juris. tit. Privilege; Lien; Last sickness;
Preference.
PRIVILEGE, mar. law. An allowance to the master of a ship of the general
nature with primage, (q.v.) being compensation or rather a gratuity
customary in certain trades, and which the law assumes to be a fair and
equitable allowance, because the contract on both sides is made under the
knowledge such usage by the parties. 3 Chit. Com. Law, 431.
PRIVILEGE, rights. This word, taken its active sense, is a particular law,
or a particular disposition of the law, which grants certain special
prerogatives to some persons, contrary to common right. In its passive
sense, it is the same prerogative granted by the same particular law.
2. Examples of privilege may be found in all systems of law; members
of congress and of the several legislatures, during a certain time, parties
and witnesses while attending court; and coming to and returning from the
same; electors, while going to the election, remaining on the ground, or
returning from the same, are all privileged from arrest, except for treason,
felony or breach of the peace.
3. Privileges from arrest for civil cases are either general and
absolute, or limited and qualified as to time or place.
4.-1. In the first class may be mentioned ambassadors, and their
servants, when the debt or duty has been contracted by the latter since they
entered into the service of such ambassador; insolvent debtors duly
discharged under the insolvent laws; in some places, as in Pennsylvania,
women for any debt by them contracted; and in general, executors and
administrators, when sued in their representative character, though they
have been held to bail. 2 Binn. 440.
5.-2. In the latter class may be placed, 1st. Members of congress this
privilege is strictly personal, and is not only his own, or that of his
constituent, but also that of the house of which he is a member, which every
man is bound to know, and must take notice of. Jeff. Man. Sec. 3; 2 Wils. R.
151; Com. Dig. Parliament, D. 17. The time during which the privilege
extends includes all the period of the session of congress, and a reasonable
time for going to, and returning from the seat of government. Jeff. Man.
Sec. 3; Story, Const. Sec. 856 to 862; 1 Kent, Com. 221; 1 Dall. R. 296. The
same privilege is extended to the members of the different state
legislatures.
6.-2d. Electors under the constitution and laws of the United States,
or of any state, are protected from arrest for any civil cause, or for any
crime except treason, felony, or a breach of the peace, eundo, morando, et
redeundo, that is, going to, staying at, or returning from the election.
7.-3d. Militia men, while engaged in the performance of military duty,
under the laws, and eundo, morando et redeundo.
8.-4th. All persons who, either necessarily or of right are attending
any court or forum of justice, whether as judge, juror, party interested or
witness, and eundo, morando et redeundo. See 6 Mass. R, 245; 4 Dall. R. 329,
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487; 2 John. R. 294; 1 South. R. 366; 11 Mass. R. 11; 3 Cowen, R. 381; 1
Pet. C. C. R. 41.
9. Ambassadors are wholly exempt from arrest for civil or criminal
cases.
Vide Ambassador. See, generally, Bac. Ab. h.t.; 2 Rolle's Ab. 272; 2
Lilly's Reg. 369; Brownl. 15; 13 Mass. R. 288; 1 Binn. R. 77; 1 H. Bl. 686;
Bouv. Inst. Index, h.t.
PRIVITY OF ESTATE. The relation which subsists between a landlord and his
tenant.
2. It is a general rule that a termor cannot transfer the tenancy or
privity of estate between himself and his landlord, without the latter's
consent: an assignee, who comes in only in privity of estate, is liable only
while he continues to be legal assignee; that is, while in possession under
the assignment. Bac. Ab. Covenant, E 4; Woodf. L. & T. 279; Vin. Ab. h: t.;
Hamm. on Part. 132. Vide Privies.
PRIVY. One who is a partaker, or has an interest in any action, matter or
thing.
PRIVY COUNCIL, Eng. law. A council of state composed of the king and of such
persons as he may select.
PRIVY SEAL, Eng. law. A seal which the king uses to such grants or things as
pass the great seal. 2 Inst. 554.
PRIVY VERDICT. One which is delivered privily to a judge out of court.
PRIZE, mar. law, war. The apprehension and detention at sea, of a ship or
other vessel, by authority of a belligerent power, either with the design of
appropriating it, with the goods and effects it contains, or with that of
becoming master of the whole or a part of its cargo. 1 Rob. Adm. R. 228. The
vessel or goods thus taken are also called a prize. Goods taken on land from
a public enemy, are called booty, (q.v.) and the distinction between a prize
and booty consists in this, that the former is taken at sea and the latter
on laud.
2. In order to vest the title of the prize in the captors, it must be
brought with due care into some convenient port for adjudication by a
competent court. The condemnation must be pronounced by a prize court of the
government of the captor sitting in the country of the captor, or his ally;
the prize court of an ally cannot condemn. Strictly speaking, as between the
belligerent parties the title passes, and is vested when the capture is
complete; and that was formerly held to be complete and perfect when the
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battle was over, and the spes recuperandi was gone. 1 Kent, Com. 100; Abbott
on Ship. Index, h.t.; 13 Vin. Ab. 51; 8 Com. Dig. 885; 2 Bro. Civ. Law, 444;
Harr. Dig. Ship. and Shipping, X; Merl. Repert. h.t.; Bouv. Inst. Index.
h.t. Vide Infra praesidia.
PRIZE, contracts. A reward which is offered to one of several persons who
shall accomplish a certain condition; as, if an editor should offer a silver
cup to the individual who shall write the best essay in favor of peace.
2. In this case there is a contract subsisting between the editor and
each person who may write such essay that he will pay the prize to the
writer of the best essay. Wolff, Dr. de la Nat. Sec. 675.
3. By prize is also meant a thing which is won by putting into a
lottery.
PRIZE COURT, Eng. law The name of court which has jurisdiction of all
captures made in war on the high seas.
2. In England this is a separate branch of the court of admiralty, the
other branch being called the instance court. (q.v.)
3. The district courts of the United States have jurisdiction both as
instance and prize courts, there being no distinction in this respect as in
England. 3 Dall. 6; vide 1 Gall. R. 563; Bro. Civ. & Adm. Law, ch. 6 & 7; 1
Kent, Com. 356; Mann. Comm. B. 3, c. 12.
PRO AND CON. For and against. For example, affidavits are taken pro and con.
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PROAVUS. Great grandfather. This term is employed in making genealogical
tables.
PROBABLE. That which has the appearance of truth; that which appears to be
founded in reason.
PROBABLE CAUSE. When there are grounds for suspicion that a person has
committed a crime or misdemeanor, and public justice and the good of the
community require that the matter should be examined, there is said to be a
probable cause for, making a charge against the accused, however malicious
the intention of the accuser may have been. Cro. Eliz. 70; 2 T. R. 231; 1
Wend. 140, 345; 5 Humph. 357; 3 B. Munr. 4. See 1 P. S. R. 234; 6 W. & S.
236; 1 Meigs, 84; 3 Brev. 94. And probable cause will be presumed till the
contrary appears.
2. In an action, then, for a malicious prosecution, the plaintiff is
bound to show total absence of probable cause, whether the original
proceedings were civil or criminal. 5 Taunt. 580; 1 Camp. N. P. C. 199; 2
Wils. 307; 1 Chit. Pr. 48; Hamm. N. P. 273. Vide Malicious prosecution, and
7 Cranch, 339; 1 Mason's R. 24; Stewart's Adm. R. 115; 11 Ad. & El. 483; 39
E. C. L. R. 150; 24 Pick. 81; 8 Watts, 240; 3 Wash. C. C. R. 31: 6 Watts &
Serg. 336; 2 Wend. 424 1 Hill, S. C. 82; 3 Gill & John. 377; 1 Pick. 524; 8
Mass. 122; 9 Conn. 309; 3 Blackf. 445; Bouv. Inst. Index, h.t.
PROBATE OF A WILL. The proof before an officer appointed by law, that an
instrument offered to be recorded is the act of the person whose last will
and testament it purports to be. Upon proof being so made and security being
given when the laws of the state require such security, the officer grants
to the executors or administrators cum testamento annexo, when there been
adopted, but provision is made for perare no executors, letters
testamentary, or of administration.
2. The officer. who takes such probate is variously denominated; in
some states he is called judge of probate. in others register, and surrogate
in others. Vide 11 Vin. Ab. 5 8 12 Vin. Ab. 126 2 Supp. to Ves. jr. 227 1
Salk. 302; 1 Phil. Ev. 298; 1 Stark. Ev. 231, note, and the cases cited in
the note, and also, 12 John. R. 192; 14 John. R. 407 1 Edw. R. 266; 5 Rawle,
R. 80 1 N. & McC. 326; 1 Leigh, R. 287; Penn. R. 42; 1 Pick. R. 114; 1
Gallis. R. 662, as to the effect of a probate on real and personal property,
3. In England, the ecclesiastical courts, which take the probate of
wills, have no jurisdiction of devises of land. In a trial at common law,
therefore, the original will must be produced, and the probate of a will is
no evidence.
4. This rule has been somewhat changed in some of the states. In New
York it has petuating the evidence of a will. 12 John. Rep. 192; 14 John. R,
407. In Massachusetts, Connecticut, North Carolina, and Michigan, the
probate is conclusive of its validity, and a will cannot be used in evidence
till proved. 1 Pick. R. 114; l Gallis. R. 622 1 Mich. Rev. Stat. 275. In
Pennsylvania, the probate is not conclusive as to lands, and, although not
allowed by the Register's court, it may be read in evidence. 5 Rawle's R.
80. In North Carolina, the will must be proved de novo in the court of
common pleas, though allowed by the ordinary. 1 Nott & McCord, 326. In New
Jersey, probate is necessary, but it is not conclusive. Penn. R. 42.
5. The probate is a judicial act, and while unimpeached, authorizes
debtors of the deceased in paying the debts they owed him, to the executors
although the will may, have been forged. 3 T. R. 125; see 8 East, Rep. 187.
Vide Letters testamentary.
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PROBATION. The evidence which proves a thing. It is either by record,
writing, the party's own oath, or the testimony of witnesses. Proof. (q.v.)
It also signifies the time of a novitiate; a trial. Nov. 5.
PROBATOR. Ancient English law. Strictly, an accomplice in felony, who to
save himself confessed the fact, and charged or accused any other as
principal or accessary, against whom he was bound to make good his charge.
It also signified an approver, or one who undertakes to prove a crime
charged upon another. Jacob's Law Dict. h.t.
PROBATORY TERM. In the British courts of admiralty, after the issue is
formed between the parties, a time for taking the testimony is assigned,
this is called a probatory term.
2. This term is common to both parties, and either party may examine
his witnesses. When good cause is shown the term will be enlarged. 2 Bro.
Civ. and Adm. Law, 418 Dunl. Pr. 217.
PROBI ET LEGALES HOMINES. Good and lawful men; persons competent in point of
law to serve on juries. Cro. Eliz. 654, 751; Cro. Jac. 635; Mart. & Yerg.
147; Hardin, 63; Bac. Ab. Juries, A.
PROBITY. Justice, honesty. A man of probity is one who loves justice and
honesty, and who dislikes the contrary. Wolff, Dr. de la Nat. Sec. 772.
PROCEDENDO, practice. A writ which issues where an action is removed from an
inferior to a superior jurisdiction by habeas corpus, certiorari or writ of
privilege, and it does not appear to such superior court that the suggestion
upon which the cause has been removed, is sufficiently proved; in which case
the superior court by this writ remits the cause to the court from whence it
came, commanding the inferior court to proceed to the final hearing and
determination of the same. See 1 Chit. R. 575; 2 Bl. R. 1060 1 Str. R. 527;
6 T. R. 365; 4 B. & A. 535; 16 East, R. 387.
PROCEEDING. In its general acceptation, this word means the form in which
actions are to be brought and defended, the manner of intervening in suits,
of conducting them, the mode of deciding them, of opposing judgments and of
executing.
2. Proceedings are ordinary and summary. 1. By ordinary proceedings are
understood the regular and usual mode of carrying on, a suit by due course
at common law. 2. Summary proceedings are those when the matter in dispute
is decided without the intervention of a jury; these must be authorized by
the legislature, except perhaps in cages of contempts, for such proceedings
are unknown to the common law.
3. In Louisiana, there is a third kind of proceeding, known by the name
of executory proceeding, which is resorted to in the following cases: 1.
When the creditor's right arises from an act importing a confession of
judgment, and which contains a privilege or mortgage in his favor. 2. When
the creditor demands the execution of a judgment which has been rendered by
a tribunal different from that within whose jurisdiction the execution is
sought. Code of Practice, art. 732.
4. In New York the code of practice divides remedies into actions and
special proceedings. An action is a regular judicial proceeding, in which
one party prosecutes another party for the enforcement or protection of a
right, the redress or prevention of a wrong, or the punishment of a public
offence. Every other remedy is a special proceeding. Sec. 2.
PROCERES. The name by which the chief magistrates in cities were formerly
known. St. Armand, Hist. Eq. 88.
PROCES VERBAL, French law. A true relation in writing in due form of law of
what has been done and said verbally in the presence of a public officer,
and what he himself does upon the occasion. It is a species of inquisition
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of office.
2. The proces verbal should be dated, contain the name, qualities, and
residence of the public functionary who makes it, the cause of complaint,
the existence of the crime, that which serves to substantiate the charge,
point out its nature, the time, the place, the circumstances, state the
proofs and presumptions, describe the place, in a word, everything
calculated to ascertain the truth. It must be signed by the officer. Dall.
Dict. h.t.
PROCESS, practice. So denominated because it proceeds or issues forth in
order to bring the defendant into court, to answer the charge preferred
against him, and signifies the writ or judicial means by which he is brought
to answer. 1 Paine, R. 368 Bouv. Inst. Index, h.t.
2. In the English law, process in civil causes is called original
process, when it is founded upon the original writ; and also to distinguish
it from mesne or intermediate process, which issues pending the suit, upon
some collateral interlocutory matter, as, to summon juries, witnesses,, and
the like; mesne process is also sometimes put in contradistinction to final
process, or process of execution; and then it signifies all process which
intervenes between the beginning and end of a suit. 3 Bl. Com. 279.
3. In criminal cases that proceeding which is called a warrant, before
the finding of the bill, is termed process when issued after the indictment
has been found by the jury. Vide 4 Bl. Com. 319; Dalt. J. c. 193; Com. Dig.
Process, A 1; Burn's Dig. Process; Williams, J, Process; 1 Chit. Cr. Law,
338; 17 Vin. Ab. 585.
4. The word process in the 12th section of the 5th article of the
constitution of Pennsylvania, which provides that "the style of all process
shall be The Commonwealth of Pennsylvania," was intended to refer to such
writs only as should become necessary to be issued in the course of the
exercise of that judicial power which is established and provided for in the
article of the constitution, and forms exclusively the subject matter of it.
3 Penna. R. 99.
PROCTOR. One appointed to represent in judgment the party who empowers him,
by writing under his hand called a proxy. The term is used chiefly in the
courts of civil and ecclesiastical law. The proctor is somewhat similar to
the attorney. Avl. Parerg. 421.
PROCURATION, civil law. The act by which one person gives power to another
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to act in his place, as he could do himself. A letter of attorney.
2. Procurations are either express or implied; an express procuration is
one made by the express consent of the parties; the implied or tacit takes
place when an individual sees another managing his affairs, and does not
interfere to prevent it. Dig. 17, 1, 6, 2; Id. 50, 17, 60; Code 7, 32, 2.
3. Procurations are also divided into those which contain absolute
power, or a general authority, and those which give only a limited power.
Dig. 3, 3, 58; Id. 17, 1, 60, 4 4. The procurations are ended in three ways
first, by the revocation of the authority; secondly, by the death of one of
the parties; thirdly, by the renunciation of the mandatory, when it is made
in proper time and place, and it can be done without injury to the person
who gave it. Inst. 3, 27 Dig. 17, 1; Code 4, 35; and see Authority; Letter
of Attorney; Mandate.
PROCURATIONS, eccl. law. Certain sums of money which parish priests pay
yearly to the bishops or archdeacons ratione visitationis. it 3, 39, 25;
Ayl. Parerg. 429; 17 Vin. Ab. h.t., pa e 544.
PROCURATOR, civil law. A proctor; a person who acts for another by virtue of
a procuration. Procurator est, qui aliena negotia mandata Domini
administrat. Dig 3, 3, 1. Vide Attorney; Authority.
PROCURATOR in rem suam. Scotch law. This imports that one is acting as
attorney as to his own property. When an assignment of a thing is made, as a
debt, and a procuration or power of attorney is given to the assignee to
receive the same, he is in such case procurator in rein suam. 3 Stair's
Inst. 1, Sec. 2, 3, &c.; 3 Ersk. 5, Sec. 2; 1 Bell's Com. B. 5, c. 2, s. 1,
Sec. 2.
PROCURATORIUM. The proxy or instrument by which a proctor is constituted and
appointed.
PRODIGAL, civil law, persons. Prodigals were persons who, though of full
age, were incapable of managing their affairs, and of the obligations which
attended them, in consequence of their bad conduct, and for whom a curator
was therefore appointed.
2. In Pennsylvania, by act of assembly, an habitual drunkard is
deprived of the management of his affairs, when he wastes his property, and
his estate is placed in the bands of a committee.
PRODITORIE. Treasonably. This is a technical word formerly used in
indictments for treason, when they were written in Latin.
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PROJET. In international law, the draft of a proposed treaty or convention
is called a projet.
PROLES. Progeny, such issue as proceeds from a lawful marriage; and, in its
enlarged sense, it signifies any children.
PROLETARIUS, civil law. One who has no property to be taxed; and paid a tax
only on account of his children, proles; a person of mean or common
extraction. The word has become Frenchified, proletaire signifying one of
the common people.
PROLICIDE, med. jurisp. Medical jurists have employed this word to designate
the destruction of the human divided the subject into foeticide, (q.v.) or
the destruction of the foetus in utero; and infanticide, (q.v.) or the
destruction of the new-born infant. Ryan, Med. Jur. 137.
PROLYTAE, Rom. civil law. The term used to denominate students of law during
the fifth and last year of their studies. They were left during this year,
very much to their own direction, and took the name (prolytoi) Prolytae
omnino soluti. They studied chiefly the code and the imperial constitutions.
See Dig. Proef. Prim. Const. 2; Calvini Lex ad Voc.
PROLIXITY. The unnecessary and superfluous statement of facts in pleading or
in evidence. This will be rejected as impertinent. 7 Price, 278, n.
PROLOCUTOR. In the ecclesiastical law, signifies a president or chairman of
a convocation.
PROPIOS, or PROPRIOS, Span. law. Certain portions of ground laid off and
reserved when a town was founded in Spanish America, as the unalienable
property of the town, for the purpose of erecting public buildings, markets,
&c., or to be used in any other way, under the direction of the
municipality, for the advancement of the revenues, or the prosperity of the
place. 12 Peters' R. 442, note.
PROPONENT, eccl. law. One who propounds a telling as "the party proponent
doth allege and propound." 6 Eng. Ecclesiastical R. 356, n.
PROPRES, French law. The term propres or biens propres, is used to denote
that property which has come to an individual from his relations, either in
a direct line, ascending or descending, or from a collateral line, whether
the same have come by operation of law or by devise. Propres is used. in
opposition to acquets. Poth. Des. Propres; 2 Burge, Confl. of Laws, 61; 2 L.
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R. S.
PROPRIA PERSONA. In his own person. It is a rule in pleading that pleas to
the jurisdiction of the court must be pleaded in propria persona, because,
if pleaded by attorney, they admit the jurisdiction, as an attorney is an
officer of the court, and he is presumed to plead after having obtained
leave, which admits the jurisdiction. Lawes on Pl. 91.
2. An appearance may be in propria persona, and need not be by
attorney.
PROPRIETARY. In its strict sense, this word signifies one who is master of
his actions, and who has the free disposition of his property. During the
colonial government of Pennsylvania, William Penn was called the
proprietary.
2. The domain which William Penn and his family had in the state, was,
during the Revolutionary war, divested by the act of June 28, 1779, from
that family and vested in the commonwealth for the sum which the latter paid
to them of one hundred and thirty thousand pounds sterling.
PROPRIETATE PROBANDA. The name of a writ. See De proprietate probanda.
PROPRIETOR. The owner. (q.v.)
PROTUTOR, civil law. He who not being the tutor of a pupil or minor, has
administered his property or affairs as if he had been, whether he thought
himself legally invested with the authority of a tutor, or not.
2. He who marries a woman who is tutrix, becomes, by the marriage, a
protutor. The protutor is equally responsible as the tutor.
PROUT PATET PER RECORDUM. As appears by the record. This phrase is
frequently used in pleading; as, for example, in debt on a judgment or other
matter of record, unless when it is stated is an inducement, it is requisite
after slowing the matter of record, to refer to it by the prout patet per
recordum. 1 Chit. Pl. *356.
PROVINCE. Sometimes this signifies the district into which a country has
been divided; as, the province of Canterbury, in England the province of
Languedoc, in France. Sometimes it means a dependency or colony; as, the
province of New Brunswick. It is sometimes used figuratively, to signify
power or authority; as, it is the province of the court to judge of the law,
that of the jury to decide on the facts.
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PROVISION, French law. An allowance granted by a judge to a party for his
support; which is to be paid before there is a definitive judgment. In a
civil case, for example, it is an allowance made to a wife who is separated
from her husband. Dict. de Jurisp. h.t.
PROVISIONAL SEIZURE. A term used in Louisiana, which signifies nearly the
same as attachment of property.
2. It is regulated by the Code of Practice as follows, namely: Art.
284. The plaintiff may, in certain caws, hereafter provided, obtain the
provisional seizure of the property which he holds in pledge, or on which he
has a privilege, in order to secure the payment of his claim.
3. Art. 285. Provisional seizure may be ordered in the following cases:
1. In executory proceedings, when the plaintiff sues on a title importing
confession of judgment. 2. When a lessor prays for the seizure of furniture
or property used in the house, or attached to the real estate which he has
leased. 3. When a seaman, or another person, employed on board of a ship or
water craft, navigating within the state, or persons having furnished
materials for, or made repairs to such ship or water craft, prays that the
same may be seized, and prevented from departing, until he has been paid the
amount of his claim.
4. When the proceedings are in rem, that is to say, against the thing
itself, which stands pledged for the debt, when the property is abandoned,
or in cases where the owner of the thing is unknown or absent. Vide 6 N. S.
168; 8 N. S. 320; 7 N. S. 153; 1 Martin, R. 168; 12 Martin, R. 32.
PROVISIONS. Food for man; victuals.
2. As good provisions contribute so much to the health and comfort of
man, the law requires that they shall be wholesome; he who sells
unwholesome provisions, may therefore be punished for a misdemeanor. 2 East,
P. C. 822; 6 East, R. 133 to 141; 3 M. & S. 10; 4 Campb. R. 10; 4 M. & S.
214.
3. And in the sale of provisions, the rule is, that the seller
impliedly warrants that they are wholesome. 3 Bl. Com. 166.
PROVISO. The name of a clause inserted in an act of the legislature, a deed,
a written agreement, or other instrument, which generally contains a
condition that a certain thing shall or shall not be done, in order that an
agreement contained in another clause shall take effect.
2. It always implies a condition, unless subsequent words change it to
a covenant; but when a proviso contains the mutual words of the parties to a
deed, it amounts to a covenant. 2 Co. 72; Cro. Eliz. 242; Moore, 707 Com. on
Cov. 105; Lilly's Reg. h.t.; 1 Lev. 155.
3. A proviso differs from an exception. 1 Barn. k Ald. 99. An exception
exempts, absolutely, from the operation of an engagement or an enactment; a
proviso defeats their operation, conditionally. An exception takes out of an
engagement or enactment, something which would otherwise be part of the
subject-matter of it; a proviso avoids them by way of defeasance or excuse.
8 Amer. Jurist, 242; Plowd. 361; Carter 99; 1 Saund. 234 a, note; Lilly's
Reg. h.t.; and the cases there cited. Vide, generally Amer. Jurist, No. 16,
art. 1; Bac. Ab. Conditions, A; Com. Dig. Condition, A 1, A 2; Darw. on
Stat. 660.
PROVOCATION. The act of inciting another to do something.
2. Provocation simply, unaccompanied by a crime or misdemeanor, does
not justify the person provoked to commit an assault and battery. In cases
of homicide, it may reduce the offence from murder to manslaughter. But when
the provocation is given for the purpose of justifying or excusing an
intended murder, and the party provoked is killed, it is no justification. 2
Gilb. Ev. by Lofft, 753.
3. The unjust provocation by a wife of her husband, in consequence of
which she suffers from his ill usage, will not entitle her to a divorce on
the ground of cruelty; her remedy, in such cases, is by changing her
manners. 2 Lee,, R. 172; 1 Hagg. Cons. Rep. 155. Vide Cruelty; To Persuade;
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1 Russ. on Cr. B. 3, c. 1, s. 1, page 434, and B. 3, c. 3, s. 1, pa e 486; 1
East, P. C. 232 to 241.
PROXENETAE, civil law. Among the Romans these were persons whose functions
somewhat resembled the brokers of modern commercial nations. Dig. 50, 14, 3;
Domat, 1. 1, t. 17, Sec. 1, art. 1.
PUBLISHER. One who does by himself or his agents make a thing publicly
known; one engaged in the circulation of books, pamphlets, and other papers.
2. The publisher of a libel is responsible as if he were the author of
it, and it is immaterial whether he has any knowledge of its contents or
not; 9 Co. 59; Hawk. P. C. c. 73, Sec. 10; 4 Mason, 115; and it is no
justification to him that the name of the author accompanies the libel. 10
John, 447; 2 Moo. & R. 312.
3. When the publication is made by writing or printing, if the matter
be libelous, the publisher may be indicted for a misdemeanor, provided it
was made by his direction or consent, but if he was the owner of a newspaper
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merely, and the publication was made by his servants or agents, without any
consent or knowledge on his part, he will not be liable to a criminal
prosecution. In either case he will be liable to an action for damages
sustained by the party aggrieved. 7 John. 260.
4. In order to render the publisher amenable to the law, the
publication must be maliciously made, but malice will be presumed if the
matter be libelous. This presumption, however, will be rebutted, if the
publication be made for some lawful purpose, as, drawing up a bill of
indictment, in which the libelous words are embodied, for the purpose of
prosecuting the libeler; or if it evidently appear the publisher did not, at
the time of publication, know that the matter was libelous as, when a person
reads a libel presence of others, without beforehand knowing it to be such.
9 Co. 59. See Libel; Libeler; Publication.
PUDICITY. Chastity; the abstaining from all unlawful carnal commerce or
connexion. A married woman or a widow may defend her pudicity as a maid may
her virginity. Vide Chastity; Rape.
PUDZELD Eng. law. To be free from the payment of money for taking of wood in
any forest. Co. Litt. 233 a. The same as Woodgeld. (q.v.)
PUER. In its enlarged sense this word signifies a child of either sex;
though in its restrained meaning it is applied to a boy only.
2. A case once arose which turned upon this question, whether a
daughter could take lands under the description of puer, and it was decided
by two judges against one that she was entitled. Dy. 337 b. In another case,
it was ruled the other way. Rob. 33.
PUERILITY, civil law. This commenced at the age of seven years, the end of
the age of infancy, and lasted till the age of puberty, (q.v.) that is, in
females till the accomplishment of twelve years, and in males, till the age
of fourteen years fully accomplished. Ayl. Pand. 63.
2. The ancient Roman lawyers divided puerility into proximus infantiae,
as it approached infancy, and into proximus pubertati, as it became nearer
to puberty. 6 Toullier, n. 100.
PUFFER, commerce, contracts. A person employed by the owner of property
which is sold at auction to bid it up, who does so accordingly, for the
purpose of raising the price upon bona fide bidders.
2. This is a fraud which at the choice of the purchaser invalidates the
sale. 5 Madd. R. 37, 440; 3 Madd. R. 112; 12 Ves. 483; l Fonb. Eq. 227, n; 2
Kent, Com. 423; 11 Serg. & Rawle, 86; Cowp. 395; 3 Ves. jun. 628; 6 T. R.
642; 2 Bro. C. C. 326; 3 T. R. 93, 95; 1 P. A. Browne, Rep. 346; 2 Hayw. R.
328; Sugd. Vend. 16; 4 Harr. & McH. 282; 2 Dev. 126; 2 Const. Rep. 821;. 3
Marsh. 526.
PUIS DARREIN CONTINUANCE, pleading. These old French words signify since the
last continuance.
2. Formerly there were formal adjournments or continuances of the
proceedings in a suit, for certain purposes, from one term to another; and
during the interval the parties were of course out of court. When any matter
arose which was a ground of defence, since the last continuance, the
defendant was allowed to plead it, which allowance was an exception to the
general rule that the defendant can plead but one plea of one kind or class.
3. By the modern practice the parties are, from the day when, by the
ancient practice, a continuance would have been entered, supposed to be out
of court, and the pleading is suspended till the day arrives to which, by
the ancient practice, the continuance would extend; at that day, the
defendant is entitled, if any new matter of defence has arisen in the
interval, to plead it, according to the ancient plan puis darrein
continuance, before the next continuance.
4. Pleas of this kind may be either in abatement or in bar; and may be
pleaded, even after an issue joined, either in fact or in law, if the new
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matter has arisen after the issue was joined, and is pleaded before the next
adjournment. Gould on Pl. c. 6, Sec. 123-126; Steph. Pl. 81, 398; Lawes on
Pl. 173; 1 Chit. Pl. 637; 5 Peters, Rep. 232; 3 Bl. Com. 316; Arch. Civ, Pl.
353; Bac. Ab. Pleas, Q; 4 Mass. 659; 4 S. & R. 238; 1 Bailey, 369; 4 Verm.
545; 11 John. 4; 24; 1 S. & R. 310; 3 Bouv. Inst. n. 3014-18.
PUISNE. Since born; the younger; as, a puisne judge, is an associate judge.
PUPIL, civil law. One who is in his or her minority. Vide. Dig. 1, 7; Id.
26, 7, 1, 2; Code, 6, 30, 18; Dig. 50, 16, 239. One who is in ward or
guardianship.
PUPILLARITY, civil law. That age of a person's life which included infancy
and puerility. (q.v.)
PUR AUTRE VIE, tenures. These old French words signify, for another's life.
An estate is said to be pur autre vie, when a lease is made of lands or
tenements to a man, to hold for the life of another person. 2 Bl. Com. 259;
10 Vin. Ab. 296; 2 Supp. to Ves. Jr. 41.
PURCHASE. In its most enlarged and technical sense, purchase signifies the
lawful acquisition of real estate by any means whatever, except descent. It
is thus defined by Littleton, section 12. "Purchase is called the possession
of lands or tenements that a man hath by his own deed or agreement, unto
which possession he cometh, not by title of descent from any of his
ancestors or cousins, but by his own deed."
2. It follows, therefore, that not only when a man acquires an estate
by buying it for a good or valuable consideration, but also when it is given
or devised to him be acquires it by purchase. 2 Bl. Com. 241.
3. There are six ways of acquiring a title by purchase, namely, 1. By,
deed. 2. By devise. 3. By execution. 4. By prescription. 5. By possession,
or occupancy. 6. By escheat. In its more limited sense, purchase is applied
only to such acquisitions of lands as are obtained by way of bargain and
sale for money, or some other valuable consideration. Id. Cruise, Dig. tit.
30, s. 1, to 4; 1 Dall. R. 20. In common parlance, purchase signifies the
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buying of real estate and of goods and chattels.
PURCHASER, contracts. A buyer, a vendee.
2. It is a general rule that all persons, capable of entering into
contracts, may become purchasers both of real and personal property.
3. But to this rule there are several exceptions. 1. There is a class
of persons who are incapable of purchasing except sub modo; and, 2. Another
class, who, in consequence of their peculiar relation with regard to the
owners of the thing sold, are totally incapable of becoming purchasers,
while that relation exists.
4.-1. To the first class belong, 1st. Infants under the age of twenty-
one years, who may purchase, and at their full age bind themselves by
agreeing to the bargain, or waive the purchase without alleging any cause
for so doing. If they do not agree to the purchase after their full age,
their heirs may waive it in the same manner as they themselves could have
done. Cro. Jac. 320; Rolle's Ab. 731 K; Co. Litt. 2 b; 6 Mass. R. 80; 6
John. R. 257.
5.-2d. Femes covert, who are capable of purchasing but their husbands
may disagree to the contract, and divest the whole estate; the husband may
further recover back the purchase-money. 1 Ld. Raym. 224; 1 Madd. Ch. R.
258; 6 Binn. R. 429. When the husband neither, agrees nor disagrees, the
purchase will be valid. After the husband's death, the wife may waive the
purchase without assigning any cause for it, although the husband may have
agreed to it; and if, after her husband's death, she do not agree to it, her
heirs may waive it. Co. Lift. 3 a; Dougl. R. 452.
6.-3d. Lunatics, or idiots, who are capable of purchasing. It seems
that although they recover their senses, they cannot of themselves waive the
purchase; yet if, after recovering their senses, they agree to it, their
heirs cannot set it aside. 2 Bl. Com. 291; and see 3 Day's R. 101. Their
heirs may avoid the purchase when they die during their lunacy or idiocy.
Co. Litt. 2 b.
7.-2. It is a general rule that trustees 2 Bro. C. C. 400; 3 Bro. C. C.
483; 1 John. Ch. R. 36; 3 Desaus. Ch. R. 26; 3 Binn. Y. 59; unless they are
nominally so, to preserve contingent remainders; 11 Ves, Jr. 226; agents; 8
Bro. P. C; 42; 13 Ves. Jr. 95; Story, Ag. Sec. 9; commissioners of
bankrupts; assignees of bankrupts; solicitors to the commission; 6 Ves. Jr.
630, n. b.; auctioneers and creditors who have been consulted as to the mode
of sale; 6 Ves. Jr. 617; 2 Johns. Ch. R. 257; or any other persons who, by
their connexion with the owner, or by being employed concerning his affairs,
have acquired a knowledge of his property, are generally incapable of
purchasing such property themselves. And so stern is the rule, that when a
person cannot purchase the estate himself, he cannot buy it, as agent for
another; 9 Ves. Jr. 248; nor perhaps employ a third person to bid for it on
behalf of a stranger; 10 Ves. Jr. 381 for no court is equal to the
examination and ascertainment of the truth in a majority of such cases. 8
Ves. Jr. 345.
8. The obligations of the purchaser resulting from the contract of
sale, are, 1. To pay the price agreed upon in the contract. 2. To take away
the thing purchased, unless otherwise agreed upon; and, 3. To indemnify the
seller for any expenses he may have incurred to preserve it for him. Vide
Sugd. on Vend. Index, h.t.; Ross on Vend. Index, h.t.; Long on Sales, Index,
h.t.; 2 Supp. to Ves. Jr. 449, 267, 478; Yelv. 45; 2 Ves. Jr. 100; 8 Coin.
Dig. 349; 3 Com. Dig. 108.
PURCHASE-MONEY. The consideration which is agreed to be paid by the
purchaser of a thing in money. It is the duty of the purchaser to pay the
purchase-money as agreed upon in making the contract, and, in case of
conveyance of an estate before it is paid, the vendor is entitled according
to the laws of, England, which have been adopted in several of the states,
to a lien on the estate sold for the purchase-money so remaining unpaid.
This is called an equitable lien. This doctrine is derived from the civil
law. Dig. 18, 1, 19. The case of Chapman v. Tauner, 1 Vera. 267, decided in
1684, is the first where this doctrine was adopted. 7 S. & R. 73. It was
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strongly opposed, but is now firmly established in England, and in the
United States. 6 Yerg. R. 50; 4 Bibb, R. 239 1 John. Ch. R. 308; 7 Wheat. R.
46, 50 5 Monr. R. 287; 1 liar. & John. 106; 4 Har. & John. 522; 1 Call. R.
414; 1 Dana, R. 576; 5 Munf. R. 342; Dev. Eq. R. 163 4 Hawks, R. 256; 5
Conn. 468; 2 J. J. Marsh, 330; 1 Bibb. R. 590.
2. But the lien of the seller exists only between the parties and those
having notice that the purchase-money has nut been paid. 3 J. J. Marsh. 557;
3 Gill & John. 425 6 Monr. R. 198.
PURE DEBT. In Scotland, this name is given to a debt actually due, in
contradistinction to one which is to become due at a future day certain,
which is called a future debt: and one due provisionally, in a certain
event, which is called a contingent debt. 1 Bell's Com. 315, 5th ed.
PURE OR SIMPLE OBLIGATION. One which is not suspended by any condition,
whether it has been contracted without any condition, or when thus
contracted, the condition has been performed. Poth. Obl. n. 176.
PURE PLEA, equity pleading. One which relies wholly on some matter dehors
the bill as for example, a plea of a release or a settled account.
2. Pleas not pure, are so called in contradistinction to pure pleas;
they are sometimes also denominated negative pleas. 4 Bouv. Inst. n. 4275.
Q.
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QUADRIPARTITE. Having four parts, or divided into four parts; as, this
indenture quadripartite made between A B, of the one part, C D, of the
second part, E P, of the third part, and G H, of the fourth part.
QUADROON. A person who is descended from a white person, and another person
who has an equal mixture of the European and African blood. 2 Bailey, 558.
Vide Mulatto.
QUAERENS NON INVENIT PLEGIUM, practice. The plaintiff has not found pledge.
The return made by the sheriff to a writ directed to him with this clause,
namely, si A facerit B securum de clamore suo prosequando, when the
plaintiff has neglected to find sufficient security. F. N. B. 38.
QUALITY, pleading. That which distinguishes one thing from another of the
same kind.
2. It is in general necessary, when the declaration alleges an injury
to the goods and chattels, or any contract relating to them, that the
quality should be stated and it is also essential, in an action for the
recovery of real estate, that its quality should be shown; as, whether it
consists of houses, lands, or other hereditaments, whether the lands are
meadow, pasture or arable, &c. The same rule requires that, in an action for
an injury to real property, the quality should be shown. Steph. Pl. 214,
215. Vide, as to the various qualities, Ayl. Pand. [60.]
QUAMDIU SE BENE GESSERIT. As long as he shall behave himself well. A clause
inserted in commissions, when such instruments were written in Latin, to
signify the tenure by which the officer held his office.
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QUANDO ACCIDERENT, pleading, practice. When they may happen. When a
defendant, executor, or administrator pleads plene administravit, the
plaintiff may pray to have judgment of assets quando acciderint. Bull. N. P.
169; Bac. Ab. Executor, M.
2. By taking a judgment in this form the plaintiff admits that the
defendant has fully administered to that time. 1 Pet. C. C. R. 442, n. Vide
11 Vin. Ab. 379; Com. Dig. Pleader, 2 D 9.
QUANTUM VALEBAT, pleading. As much as it was worth. When goods are sold,
without specifying any price, the law implies a promise from the buyer to
the seller that he will pay him for them as much as they were worth.
2. The plaintiff may, in such case, suggest in this declaration that
the defendant promised to pay him as much as the said goods were worth, and
then aver that they were worth so much, which the defendant has refused to
pay. Vide the authorities cited under the article Quantum meruit.
QUARANTINE, commerce, crim. law. The space of forty days, or a less quantity
of time, during which the crew of a ship or vessel coming from a port or
place infected or supposed to be infected with disease, are required to
remain on board after their arrival, before they can be permitted to land.
2. The object of the quarantine is to ascertain whether the crew are
infected or not.
3. To break the quarantine without legal authority is a misdemeanor. 1
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Russ. on Cr. 133.
4. In cases of insurance of ships, the insurer is responsible when the
insurance extends to her being moored in port 24 hours in safety, although
she may have arrived, if before the 24 hours are expired she is ordered to
perform quarantine, if any accident contemplated by the policy occur 1
Marsh. on Ins. 264.
QUARANTINE, inheritances, rights. The space of forty days during which a
widow has a right to remain in her late husband's principal mansion,
immediately after his death. The right of the widow is also called her
quarantine.
2. In some, perhaps all the states of the United States, provision has
been expressly made by statute securing to the widow this right for a
greater or lesser space of time in Massachusetts, Mass. Rev. St. 411, and
New York, 4 Kent, Com. 62, the widow is entitled to the mansion house for
forty days. In Ohio, for one year, Walk. Intr. 231, 324. In Alabama,
Indiana, Illinois, Kentucky, Missouri, New Jersey, Rhode Island and
Virginia, she may occupy till dower is assigned; in Indiana, Illinois,
Kentucky, Missouri, New Jersey and Virginia, she may also occupy the
plantation or messuage. In Pennsylvania the statute of 9 Hen. III., c. 7, is
in force, Rob. Dig. 176, by which it is declared that "a widow shall tarry
in the chief house of her husband forty days after his death, within which,
her dower shall be assigned her." In Massachusetts the widow is entitled to
support for forty days in North Carolina for one year.
3. Quarantine is a personal right, forfeited by implication of law, by
a second marriage. Co. Litt. 82. See Ind. Rev. L. 209; 1 Virg. Rev. C. 170,;
Ala. L. 260; Misso. St. 229; Ill. Rev. L. 237; N. J. Rev. C. 397 1 Ken. Rev.
L. 573. See Bac. Ab. Dower, B; Co. Litt. 32, b; Id, 34, b 2 Inst. 16, 17.
QUARE, pleadings. Wherefore. This word is sometimes used in the writ in
certain actions, but is inadmissible in a material averment in the
pleadings, for it is merely interrogatory and, therefore, when a declaration
began with complaining of the defendant, "wherefore with force, &c. he broke
and entered" the plaintiff's close, was considered ill. Bac. Ab. Pleas, B 5,
4; Gould on Pl. c. 3, Sec. 34.
QUARE CLAUSUM FREGIT. Wherefore he broke the close. In actions of trespass
to real estate the defendant is charged with breaking the close of the
plaintiff. Formerly the original writ in such a case was a writ of trespass
quare clausum fregit, now the charge of breaking the close is laid in the
declaration. See Close; Trespass.
QUARE EJECIT INFRA TERMINUM. Wherefore did he eject within the term. The
name of a writ which lies for a lessee, who has been turned out of his farm
before the expiration of his term or lease, Against the feoffee of the land,
or the lessor who ejects him. This has given way to the action of ejectment.
3 Bl. Com. 207.
QUARE IMPEDIT, Eng. eccl. law. The name of a writ directed by the king to
the sheriff, by which he is required to command certain persons by name to
permit him, the king, to present a fit person to a certain church, which is
void, and which belongs to his gift, and of which the said defendants hinder
the king, as it is said, and unless, &c. then to summon, &c. the defendants
so that they be and appear, &c. F. N. B. 74.
QUARE OBSTRUXIT. The name of a writ formerly used in favor of one who having
a right to pass through his neighbor's grounds, was prevented enjoying such
right, because the owner of the grounds had obstructed the way. T. L.
QUARREL. A dispute; a difference. In law, particularly in releases, which
are taken most strongly against the releasor, when a man releases all
quarrels he is said to release all actions, real and personal. 8 Co. 153.
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QUARRY. A place whence stones are dug for the purpose of being employed in
building, making roads, and the like.
2. When a farm is let with an open quarry, the tenant may, when not
restrained by his contract, take out the stone, but he has no right to open
new quarries. Vide Mines. Waste.
QUART, measures. A quart is a liquid measure containing one-fourth part of a
gallon.
QUARTER. A measure of length, equal to four inches. Vide Measure.
To QUARTER. A barbarous punishment formerly inflicted on criminals by
tearing them to pieces by means of four horses, one attached to each limb.
QUARTER DAY. One of the four days of the year on which rent payable
quarterly becomes due.
QUARTER DOLLAR, money. A silver coin of the United States of the value of
twenty-five cents.
2. It weighs one hundred and three and one-eighth grains. Of one
thousand parts, nine hundred are of pure silver and one hundred of alloy.
Act of January 18, 1837, s. 8 and 9, 4 Sharsw. L. U. S. 2523, 4. Vide Money.
QUARTER EAGLE, money. A gold coin of the United States of the value of two
dollars and a half.
2. It weighs sixty-four and one-half grains. Of one thousand parts,
nine hundred are of pure gold, and one hundred of alloy. Act of January, 18,
1837, S. 8 and 10, 4 Sharsw. cont. of Story's L. U. S. 2523, 4. Vide Money.
QUARTER SEAL. The seal kept by the director of the chancery in Scotland is
so called. It is in the shape and impression of the fourth part of the great
seal. Bell's Scotch Law Diet. h.t.
QUARTER SESSIONS. A court bearing this name, mostly invested with the trial
of criminals. It takes its name from sitting quarterly or once in three
months.
2. The English courts of quarter sessions were erected during the reign
of Edward III. Vide Stat. 36 Edward III. Crabb's Eng. L. 278.
QUARTER YEAR. In the computation of time, a quarter year consists of ninety-
one days. Co. Litt. 135 b; 2 Roll. Ab. 521, l. 40; Rev. Stat. of N. Y. part
1, c. 19, t. 1, Sec. 3.
QUARTEROON. One who has had one of his grand parents of the black or African
race.
QUARTO DIE POST. The fourth day inclusive after the return day of the writ
is so called. This is the day of appearance given ex gracia curiae.
TO QUASH, practice. To overthrow or annul.
2. When proceedings are clearly irregular and void the courts will
quash them, both in civil and criminal cases: for example, when the array is
clearly irregular, as if the jurors have been selected by persons not
authorized by law, it will be quashed. 3 Bouv. Inst. n. 3342.
3. In criminal cases, when an indictment is so defective that no
judgment can be given upon it, should the defendant be convicted, the court,
upon application, will in general quash it; as if it have no jurisdiction of
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the offence charged, or when the matter charged is not indictable. 1 Burr.
516, 548; Andr. 226. When the application to quash is made on the part of
the defendant, the court generally refuses to quash the indictment when it
appears some enormous crime has been committed. Com. Dig. Indictment, H;
Wils. 325; 1 Salk. 372; 3 T. R. 621; 6 Mod. 42; 3 Burr. 1841; 5 Mod. 13;
Bac. Abr. Indictment, K. When the application is made on the part of the
prosecution, the indictment will be quashed whenever it is defective so that
the defendant cannot be convicted, and the prosecution appears to be bona
fide. If the prosecution be instituted by the attorney general, he may, in
some states, enter a nolle prosequi, which has the same effect. 1 Dougl.
239, 240. The application should be made before plea pleaded; Leach, 11; 4
St. Tr. 232; 1 Hale, 35; Fost. 231; and before the defendant's recognizance
has been forfeited. 1 Salk. 380. Vide Cassetur Breve.
QUASI. A Latin word in frequent use in the civil law signifying as if,
almost. It marks the resemblance, and supposes a little difference between
two objects. Dig. b. 11, t. 7, 1. 8, Sec. 1. Civilians use the expressions
quasi-contractus, quasi-delictum, quasi-possessio quasi-traditio, &c.
QUASI-AFFINITY. A term used in the civil law to designate the affinity which
exists between two persons, one of whom has been betrothed to the kindred of
the other, but who have never been married. For example, my brother is
betrothed to Maria, and, afterwards, before marriage he dies, there then
exists between Maria and me a quasi-affinity.
2. The history of England furnishes an example of this kind. Catherine
of Arragon was betrothed to the brother of Henry VIII. Afterwards Henry
married her and, under the pretence of this quasi affinity, he repudiated
her, because the marriage was incestuous.
QUASI-CONTRACTUS. A term used in the civil law. A quasi-contract is the act
of a person, permitted by law, by which he obligates himself towards
another, or by which another binds himself to him, without any agreement
between them.
2. By article 2272 of the Civil Code of Louisiana, which is translated
from article 1371 of the Code Civil, quasi-contracts are defined to be "the
lawful and purely voluntary acts of a man, from which there results any
obligation whatever to a third person, and sometime a reciprocal obligation
between the parties." In contracts, it is the consent of the contracting
parties which produces the obligation; in quasi-contracts no consent is
required, and the obligation arises from the law or natural equity, on the
facts of the case. These acts are called quasi-contracts, because, without
being contracts, they bind the parties as contracts do.
3. Quasi-contracts may be multiplied almost to infinity. They are,
however, divided into five classes: such "relate to the voluntary and
spontaneous management of the affairs of another, without authority; the
administration of tutorship; the management of common property; the
acquisition of an inheritance; and the payment of a sum of money or other
thing by mistake, when nothing was due.
4.-1. Negotiorum gestio. When a man undertakes of his own accord to
manage the affairs of another, the person assuming the agency contracts the
tacit engagement to continue it, an& complete it, until the owner shall be
in a condition to attend to it himself. The obligation of such a person is,
1st. To act for the benefit of the absentee. 2d. He is commonly answerable
for the slightest neglect. 3d. He is bound to render an account of his
management. Equity obliges the proprietor, whose business has been well
managed, 1st. To comply with the engagements contracted by the manager in
his name. 2d. To indemnify the manager in all the engagements he has
contracted. 3d. To reimburse him all useful and necessary expenses.
5.-2. Tutorship or guardianship, is the second kind of quasi-
contracts, there being no agreement between the tutor and minor.
6.-3. When a person has the management of a common property owned by
himself and others, not as partners, he is bound to account for the profits,
and is entitled to be reimbursed for the expenses which he has sustained by
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virtue of the quasi-contract which is created by his act, called communio
bonorum.
7.-4. The fourth class is the aditio hereditatis, by which the heir
is bound to pay the legatees, who cannot be said to have any contract with
him or with the deceased.
8.-5. Indebiti solutio, or the payment to one of what is not due to
him, if made through any mistake in fact, or even in law, entitles him who
made the payment to an action against the receiver for repayment, condictio
indebiti. This action does not lie, 1. If the sum paid was due ex equitate,
or by a natural obligation. 2. If he who made the payment; knew that nothing
was due, for qui consulto dat quod non, debebat, proesumitur donare.
9. Each of these quasi-contracts has an affinity with some contract;
thus the management of the affairs of another without authority, and
tutorship, are compared to a mandate; the community of property, to a
partnership; the acquisition of an inheritance, to a stipulation; and the
payment of a thing which is not due, to a loan.
10. All persons, even infants and persons destitute of reason, who are
consequently incapable of consent may be obliged by the quasi-contract,
which results from the act of another, and may also oblige others in their
favor; for it is not consent which forms these obligations; they are
contracted by the act of another, without any act on our part. The use of
reason is indeed required in the person whose act forms the quasi-contract,
but it is not required in the person by whom or in whose favor the
obligations which result from it are contracted. For instance, if a person
undertakes the business of an infant or a lunatic; this is a quasi-contract,
which obliges the infant or the lunatic to the person undertaking his
affairs, for what he has beneficially expended, and reciprocally obliges the
person to give an account of his administration or management.
11. There is no term in the common law which answers to that of quasi-
contract; many quasi-contracts may doubtless be classed among implied
contracts; there is, however, a difference between them, which an example
will make manifest. In case money should be paid by mistake to a minor, it
may be recovered from him by the civil law, because his consent is not
necessary to a quasi-contract but by the common law, if it can be recovered,
it must be upon an agreement to which the law presumes he has consented, and
it is doubtful, upon principle, whether such recovery could be had.
See generally, Just. Inst. b. 3, t. 28 Dig. b. 3, tit. 5; Ayl. Pand. b.
4, tit. 31 1 Bro. Civil Law, 386; Ersk. Pr. Laws of Scotl. b. 3, tit. 3, s.
16; Pardessus, Dr. Com. n. 192, et seq.; Poth. Ob. n. 113, et seq.; Merlin,
Rep. Riot Quasi-contract; Menestrier, Lecons Elem. du Droit Civil Romain,
liv. 3, tit. 28; Civil Code of Louisiana, b. 3, tit. 5; Code Civil, liv. 3,
tit. 4, c. 1.
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QUASI DELICT, civil law. An act whereby a person, without malice, but by
fault, negligence or imprudence not legally excusable, causes injury to
another.
2. A quasi delict may be public or private; the neglect of the affairs
of a community, when it is our duty to attend to them, may be a crime; the
neglect of a private matter, under similar circumstances, may be the ground
of a civil action. Bowy. Mod. C. L. c. 43, p. 265.
QUASI OFFENCES, torts, civil law. Those acts which, although not committed
by the persons responsible for them, are by implication of law supposed to
have been committed by their command, by other persons for whom they are
answerable. They are also injuries which have been caused by one person to
another, without any intention to hurt them.
2. Of the first class of quasi offences are the injuries occasioned by
agents or servants in the exercise of their employments. A master is,
therefore, liable to be sued for injuries occasioned by the neglect or
unskillfulness of his servant while in the course of his employment, though
the act was obviously tortious and against the master's consent as, for
fraud, deceit, or other wrongful act. 1 Salk. 280; Cro. Jac. 473; 1 Str.
653; Roll. Abr. 95, 1. 15; 1 East, 106; 2 H. Bl. 442; 3 Wills. 313; 2 Bl.
Rep. 845; 5 Binn. 54 0; sed vide, Com. Dig. tit. Action on the case for
deceit, B. A master is liable for a servant's negligent driving of a
carriage or navigating a ship; 1 East, 105; or for a libel inserted in a
newspaper of which defendant was proprietor. 1 B. & P. 409. The master is
also liable not only for the acts of those immediately employed about him,
but even for the acts of a sub-agent, however remote, if committed in the
course of his service; 1 Bos. & P. 404; 6 T. R. 411; and a corporate company
are liable to be sued for the wrongful acts of their servants; 3 Camp. 403;
when not, see 4 M. & S. 27.
3. But the wrongful or unlawful acts must be committed in the course of
the servant's employment, and while the servant is acting as such; therefore
a person who hires a post chaise is not liable for the negligence of the
driver, but the action must be against the driver or owner of the chaise and
horses. 6 Esp. Cas. 35; 4 Barn. & A. 409 sed vide 1 B. & P. 409.
4. A master is not in general liable for the criminal acts of his
servant willfully committed by him. 2 Str. 885. Neither is he liable his
servant willfully commit an injury to another as if a servant willfully drive
his master's carriage against another's, or ride or beat a distress damage
feasant. 1 East. 106; Rep. T. Hard. 87; 3 Wils. 217; 1 Salk. 289; 2 Roll.
Abr. 553; 4 B. & A. 590. In some cases, however, where it is the duty of the
master to see that the servant acts correctly, he may be liable criminally
for what the servant has done; as where a baker's servant introduced noxious
materials in his bread. 3 M. & S. 11; Ld. Raymond, 264; 4 Camp. 12. And on
principles of public policy, a sheriff is liable civilly for the trespass,
extortion, or other willful misconduct of his bailiff. 2 T. Rep. 154; 3 Wils.
317; 8 T. R. 431.
5. In Louisiana, the father, or after his decease, the mother is
responsible for the damages occasioned by their minor or unemancipated
children, residing with them, or placed by them under the care of other
persons, reserving to them recourse against those persons. Code art. 2297.
The curators of insane persons are answerable for the damage occasioned by
those under their care. Id. 2298. Masters and employers are answerable for
the damage occasioned by their servants and overseers, in the exercise of
the functions in which they are employed; teachers and artisans, for the
damage caused by their scholars and apprentices, while under their
superintendence. In the above cases responsibility attaches, when the
masters or employers, teachers and artisans, might have prevented the act
which caused the damage, and have not done it. Id. 299. The owner of an
animal is answerable for the damage he has caused; but if the animal has
been lost or strayed more than a day, he may discharge himself from this
responsibility, by abandoning him to the person who his sustained the
injury; except where the master has turned loose a dangerous or noxious
animal; for then he must pay all the harm done without being allowed to make
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the abandonment. Id. 2301.
QUASI PARTNERS. Partners of lands, goods, or chattels, who are not actual
partners, are sometimes so called. Poth. De Societe, App. n. 184. Vide Part
owners.
QUASI POSTHUMOUS CHILD, civil law. One who, born during the life of his
grand father, or other male ascendant, was not his heir at the time he made
his testament, but who by the death of his father became his heir in his
lifetime. Inst. 2, 13, 2; Dig. 28, 3, 13.
QUASI PURCHASE. This term is used in the civil law to denote that a thing is
to be considered as purchased from the presumed consent of the owner of the
thing; as, if a man should consume a cheese, which is in his possession and
belonging to another, with an intent to pay the price of it to the owner,
the consent of the latter will be presumed, as the cheese would have been
spoiled by keeping it longer. Wolff, Dr. de la Nat. Sec. 691.
QUASI TRADITION, civil law. A term used to designate that a person is in the
use of the property of another, which the latter suffers and does not
oppose. Lec. Elein. Sec. 396. It also signifies the act by which the right
of property is ceded in a thing to a person who is in possession of it; as,
if I loan a boat to Paul, and deliver it to him, and afterwards I sell him
the boat, it is not requisite that he should deliver the boat to me, to be
again delivered to him there is a quasi tradition or delivery.
QUATUORVIRI. Among the Romans these were magistrates who had the care and
inspection of roads. Dig. 1, 2, 3, 30.
QUAY, estates. A wharf at which to load or land goods, sometimes spelled
key.
2. In its enlarged sense the word quay, means the whole space between
the first row of houses of a city, and the sea or river 5 L. R. 152, 215. So
much of the quay as is requisite for the public use of loading and unloading
vessels, is public property, and cannot be appropriated to private use, but
the rest may be, private property. Id. 201.
QUE EST MESME. Which is the same. Vide Quce est eadem.
QUE ESTATE. These words literally translated signify quem statum, or which
estate. At common law, it is a plea by which a man prescribes in himself and
those whose estate he holds. 2 Bl. Com. 270; 18 Vin. Ab. 133-140; 2 Tho. Co.
Litt. 203; Co. Litt. 121 a; Hardress, 459 2 Bouv. Inst. n. 499.
QUEAN. A worthless woman a strumpet. The meaning of this word, which is now
seldom used, is said not to be well ascertained. 2 Roll. Ab. 296 Bac. Ab.
Stander, U 3.
QUEEN. There are several kinds of queens in some countries. 1. Queen
regnant, is a woman who possesses in her own right the executive power of
the country.
2. Queen consort, is the wife of a king.
3. Queen dowager is the widow of a king. In the United States there is
no one with this title.
QUERELA. An action preferred in any court of justice, in which the plaintiff
was called querens or complainant, and his brief, complaint, or declaration,
was called querela. Jacob's Diet. h.t.
QUESTION, punishment, crim. law. A means sometimes employed, in some
countries, by means of torture, to compel supposed great criminals to
disclose their accomplices, or to acknowledge their crimes.
2. This torture is called question, because, as the unfortunate person
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accused is made to suffer pain, he is asked questions as to his supposed
crime or accomplices. The same as torture. This is unknown in the United
States. See Poth. Procedure Criminelle, sect. 5, art. 2, Sec. 3.
QUESTION, evidence. An interrogation put to a witness, requesting him to
declare the truth of certain facts as far as he knows them.
2. Questions are either general or leading. By a general question is
meant such an one as requires the witness to state all be knows without any
suggestion being made to him, as who gave the blow?
3. A leading question is one which leads the mind of the witness to the
answer, or suggests it to him, as did A B give the blow ?
4. The Romans called a question by which the fact or supposed fact
which the interrogator expected, or wished to find asserted, in and by the
answer made to the proposed respondent, a suggestive interrogation, as, is
not your name A B? Vide Leading Question.
QUESTION, practice. A point on which the parties are not agreed, and which
is submitted to the decision of a judge and jury.
2. When the doubt or difference arises as to what the law is on a
certain state of facts, this is said to be a legal question, and when the
party demurs, this is to be decided by the court; when it arises as to the
truth or falsehood of facts, this is a question of fact, and is to be
decided by the jury.
QUESTOR or QUAESTOR, civil law. A name which was given to two distinct
classes of Roman officers. One of which was called quaestores classici, and
the other quaestores parricidii,
2. The quaestores classici were officers entrusted with the care of the
public money. Their duties consisted in making the necessary payments from
the aerarium, and receiving the public revenues. Of both, they had to keep
correct accounts in their tabulae publicae. Demands which any one might have
on the aerarium, and outstanding debts were likewise registered by them.
Fines to be paid to the public treasury were registered and exacted by them.
They were likewise to provide proper accommodations for foreign ambassadors
and such persons as were connected with the republic by ties of public
hospitality. Lastly, they were charged with the care of the burials and
monuments of distinguished men, the expenses for which had been decreed by
the senate to be paid, by the treasury. Their number at first was confined
to two, but this was afterwards increased as the empire became, extended.
There were questors of cities, provinces, and questors of the army, the
latter were in fact pay-masters.
3. The questores parricidii were public accusers, two in number, who
conducted the accusation of persons guilty of murder or any other capital
offence, and carried the sentence into execution. They ceased to be
appointed at an early period, Smith's Dic. Gr. and Rom. Antiq. h.v.
QUI TAM, remedies. Who as well. When a statute imposes a penalty, for the
doing or not doing an act, and gives that penalty in part to whosoever will
sue for the same, and the other part to the commonwealth, or some
charitable, literary, or other institution, and makes it recoverable by
action, such actions are called qui tam actions, the plaintiff describing
himself as suing as well for the commonwealth, for example, as for himself.
Espin. on Pen. Act. 5, 6; 1 Vin. Ab. 197; 1 Salk. 129 n.; Bac. Ab. h.t.
QUIA, pleadings. Because. This word is considered a term of affirmation. It
is sufficiently direct and positive for introducing a material averment. 1
Saund. 117, n. 4; Com. Dig, Pleader, c. 77.
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QUIETUS, Eng. law. A discharge; an acquittance.
2. It is an instrument by the clerk of the pipe, and auditors in the
exchequer, as proof of their acquittance or discharge to accountants. Cow.
Int. h.t.
QUINTAL. A weight of one hundred pounds
QUINTO EXACTUS, Eng. law. The fifth call or last requisition of a defendant
sued to outlawry.
QUIT CLAIM, conveyancing. By the laws of Connecticut, it is the common
practice there for the owner of land to execute a quit claim deed to a
purchaser who has neither possession nor pretence of claim, and as by the
laws of that state the delivery of the deed amounts to the delivery of
possession, this operates as a conveyance without warranty. It is, however,
essential that the land should not, at the time of the conveyance, be in the
possession of a stranger, holding adversely to the title of the grantor. l
Swift's Dig. 133; 2 N. H. R. 402; 1 Cowen, 613; and vide Release.
QUIT CLAIM, contracts. A release or acquittal of a man from all claims which
the releasor has against him.
QUIT RENT. A rent paid by the tenant of the freehold, by which he goes quit
and free; that is, discharged from any other rent. 2 Bl. Com. 42.
2. In England, quit rents were rents reserved to the king or a
proprietor, on an absolute grant of waste land, for which a price in gross
was at first paid, and a mere nominal rent reserved as a feudal
acknowledgment of tenure. Inasmuch as no rent of this description can exist
in the United States, when a quit rent is spoken of, some other interest
must be intended. 5 Call. R. 364. A perpetual rent reserved on a conveyance
in fee simple, is sometimes known by the name of quit rent in Massachusetts.
1 Hill. Ab. 150. See Ground Rent; Rent.
QUO ANIMO. The intent; the mind with which a thing has been done; as, the
quo animo with which the words were spoken may be shown by the proof of
conversations of the defendant relating to the original defamation. 19 Wend.
296.
QUO MINUS. The name of a writ. In England, when the king's debtor is sued in
the court of the exchequer, he may sue out a writ of quo minus, in which he
suggests that he is the king's debtor, and that the defendant has done him
the injury or damage complained of, quo minus sufficiens existit, by which
he is less able to pay the king's debt. This was originally requisite in
order to give jurisdiction to the court of exchequer, but now this
suggestion is a mere form. 3 Bl. Com. 46.
QUO WARRANTO, remedies. By what authority or warrant. The name of a writ
issued in the name of a government against any person or corporation that
usurps any franchise or office, commanding the sheriff of the county to
summon the defendant to be and appear before the court whence the writ
issued, at a time and place therein named, to show "quo warranto" he claims
the franchise or office mentioned in the writ. Old Nat. Br. 149; 5 Wheat.
291; 15 Mass. 125; 5 Ham. 358; 1 Miss. 115.
2. This writ has become obsolete, having given way to informations in
the nature of a quo warranto at the common law; Ang. on Corp. 469; it is
authorized in Pennsylvania by legislative sanction. Act 14 June, 1836. Vide
1 Vern. 156; Yelv. 190; 7 Com. Dig. 189; 17 Vin. Ab. 177.
3. An information in the nature of a quo warranto, although a criminal
proceeding in form, in substance, is a civil one. 1 Serg. & Rawle, 382.
QUOAD HOC. As to this; with respect to this. A term frequently used to
signify, as to the thing named, the law is so and so.
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QUOD COMPUTET. The name of an interlocutory judgment in an action of account
render: also the name of a decree in the case of creditors' bills against
executors or administrators. Such a decree directs the master to take the
accounts between the deceased and all his creditors; to cause the creditors,
upon due and public notice to come before him to prove their debts, at a
certain place, and within a limited period; and also directs the master to
take an account of all personal estate of the deceased in the hands of the
executor or administrator. Story, Eq. Jur. SS 548. See Judgment quod
computet.
QUOD CUM, pleading; It is a general rule in pleading, regulating alike every
form of action, that the plaintiff shall state his complaint in positive and
direct terms, and not by way of recital. "For that," is a positive
allegation; "for that whereas," in Latin "quod cum," is a recital
2. Matter of inducement may with propriety be stated with a quod cum,
by way of recital; being but introductory to the breach of the promise, and
the supposed fraud or deceit in the defendant's non-performance of it.
Therefore, where the plaintiff declared that whereas there was a
communication and agreement concerning a horse race, and whereas, in
consideration that the plaintiff promised to perform his part of the
agreement, the defendant promised to perform his part thereof; and then
alleged the performance in the usual way; it was held that the inducement
and promise were alleged certainly enough, and that the word "whereas" was
as direct an affirmation as the word "although," which undoubtedly makes a
good averment; and it was observed that there were two precedents in the new
book of entries, and seven in the old, where a quod cum was used in the very
clause of the promise. Ernly v. Doddington, Hard. 1. go, where the plaintiff
declared on a bill of exchange against the drawer, and on demurrer to the
declaration, it was objected that it was with a quod cum, which was
argumentative, and implied no direct averment; the