(UnrHf 11 SJaui ^rljanl Khratg 
 
„_ Cornell University Library 
 
 KF 156.B78 1883 
 
 V.2 
 
 A law dictionary :adapted to the Constit 
 
 3 1924 022 836 187 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022836187 
 
LAW DICTIONARY, 
 
 AUAFTED TO THE 
 
 CONSTITUTION AND LAWS 
 
 UNITED STATES OF AMERICA, 
 
 AND OF THE 
 
 bberal itaies of t^e gmttkm tnion 
 
 If 
 
 WITH 
 
 REFERENCES TO THE CIVIL MD OTHER SYSTEMS OF FOREIGN lAW. 
 
 BY 
 
 JOHN BOUVIER. 
 
 Ignoratis terminia ignoratnr et ars. — Co. Litt, 2 a. 
 Je sais que chaqne science et chaqne art a see tennes propres, inconau au commoa dea hommes.— Flbukt. 
 
 FIFTEENTH EDITION, THOROUGHLY REVISED AND GREATLY ENLARGED. 
 
 VOL. II. 
 
 PHILADELPHIA: 
 
 J. B. LIPPINCOTT & CO. 
 
 1883. 
 
Entered according to Act of Congress, in the year 1839, by 
 
 JOHN BOUVIEE, 
 
 in the Clerk's Office of tlie District Court of the United States for the Eastern District of Pennsylvania. 
 
 Entered according to Act of Congress, in the year 1843, by 
 
 JOHN BOUVIER, 
 
 in the Cleric's Office of the District Conrt of the United States for the Eastern District of Pennsylvania. 
 
 Entered according to Act of Congress, in the year 1848, by 
 
 JOHN BOUVIEE, 
 
 in the Clerk's Office of the District Conrt of the United States for the Eastern District of Pennsylvania. 
 
 Entered according to Act of Congress, in the year 18S2, by 
 
 ELIZA BOUVIEE AHD EOBEET E. PETEESON, Tbustebs, 
 
 in the Clerk's Office of the District Court of the United States for the Eastern District of Pennsylvania. 
 
 Entered according to Act of Congress, in the year 1867, by 
 
 ELIZA BOUVIEE AMD EOBEET B. PETEESON, Tebbteeb, 
 
 in the Clerk's Office of the District Court of the United States for the Eastern District of Pennsylvania 
 
 Entered according to Act of Congress, in the year 1883, by 
 
 EOBEET E. PETERSON, 
 in the Office of the Librarian of Congress at Washington. 
 
LAW DIOTIONAEY. 
 
 J. 
 
 JACTITATION OP MARRIAGE. In 
 
 English Ecclesiastical 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. 
 
 The ecclesiastical courts may in sucb 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 Bla, Com. 93 ; 
 2 Hagg. Cons. 423, 285 ; 2 Chitty, Pr. 459. 
 
 JACTURA (Lat. jaceo, to throw). A 
 jettison. 
 
 JACTUS (Lat.). A throwing goods over- 
 board to lighten or save the vessel, in which 
 case the goods so sacrificed are a proper sub- 
 ject for general average. Dig. 14. 2, de lege 
 Rhodia de jactu; 1 Pardessus, Collec. des 
 Lois marit. 104 et seq. ; Kuricke, Inst. Marit. 
 Hanseat. tit. 8 ; 1 Parsons, Mar. Law, 288, 
 note. 
 
 JAIL, GAOL (fr. Lat. caveola, a cage for 
 birds). A place for the confinement of per- 
 sons arrested for debt or for crime and held 
 in the custody of the sheriff. Webster, Diet. 
 It may be used also for the confinement of 
 witnesses ; and, in general, now there is no 
 distinction between a jail and a prison, except 
 that the latter belongs to a greater extent of 
 country; thus, we say a state's prison and a 
 county jail. Originally, a jail seems to have 
 been a place where persons were confined to 
 await further proceeding — e. g., debtors till 
 they paid their debts, witnesses and accused 
 persons till a certain trial came on, etc. — as 
 opposed to prison, which was for confinement, 
 as punishment. 
 
 A jail is an inhabited dwelling-house, and a 
 house within the statutes against arson ; 2 W. 
 Bla. 682 ; 1 Leach, 4th ed. 69 ; 2 Bast, PI. 
 Cr. 1020 ; 2 Cox, Cr. Cas. 65 ; 18 Johns, 
 115 ; 4 Call, 109 ; 4 Leigh, 683. See Gaol ; 
 Prison. 
 
 JAMtTNLINGI, JAMUNDILINGI. 
 
 Freemen who delivered themselves and pro- 
 perty to the protection of a more powerful 
 
 person, in order to avoid military service and 
 other burdens. Spelman, Gloss. Also, a 
 species of serfs among the Germans. Du 
 Cange. The same as commendati. 
 
 JEOFAILS (L. Fr.). I have failed; I 
 am in error. 
 
 Certain statutes are called statutes of 
 amendments and jeofailes, 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 Bla. 
 Com. 407 ; 1 Saund. 228, n. 1 ; Doct. PI. 
 297; Dane, Abr. These statutes do not 
 apply to indictments. 
 
 JEOPARDY. Peril; danger. 
 
 The term is used in this sense in the act esta- 
 blishing and regulating the post-oflEice depart- 
 ment. The words of the act are, " or if, in effects 
 ing such robbery of the mail the first time, the 
 ofiTender shall wound the person having the 
 custody thereof, or put his life in jeopardy by 
 the use of dangerous weapons, such oflTender 
 shall suffer death." 3 Story, Laws U. S. 1993. 
 See Baldw. 93-95. 
 
 The situation of a prisoner when a trial 
 jury is sworn and impanelled to try his case 
 upon a valid indictment, and such jury has 
 been charged with his deliverance. 1 Bail. 
 655; 7 Blackf. 191 ; 1 Gray, 490; 38 Me. 
 674, 586 ; 23 Penn. 12 ; 12 Vt. 93. 
 
 This is the sense In which the term is used in 
 the United States constitution: "no person 
 . . . . shall be subject for the same offence 
 to be twice put in jeopardy of life or limb," U. 
 S. Const, art. v. Amend. , and in the statutes or 
 constitutions of most if not all of the states. 
 
 This provision in the constitution of the IT. S. 
 binds only the United States ; 2 Cow. 819 ; g 
 How. 410 ; contra, 2 Pick. 531 ; 18 Johns. 187. In 
 this country this rule depends in most cases on 
 constitutional provisions ; in England it is said 
 not to be one of those principles which lie at the 
 foundation of the law, but to be a matter of prac- 
 tice, which has fluctuated at various times, and 
 which even at the present day may perhaps be 
 considered as not finally settled ; per Cockburn, 
 C. J., in L. B. 1 Q. B. 289. 
 
 (3) 
 
JERGUER 
 
 JOINDER 
 
 The conBtitutional provision, which refers to 
 " life or limb," properly interpreted, extends only 
 to treason and felonies, but It has usually heen 
 extended to misdemeanors ; 1 Bish. Cr. L. § 
 990 ; 36 Ala. 135 ; but not to proceedings for the 
 recovery of penalties, nor to applications for 
 sureties of the peace ; 1 Bish. Cr. L. § 990. 
 
 A person is in legal jeopardy when he is 
 put upon trial, before a court of competent 
 jurisdiction, upon indictment or information 
 which is sufficient in form and substance to 
 sustain a conviction, and a jury has been 
 charged with his deliverance ; Cooley, Const. 
 Lim. 404; approved in 9 Bush, 333; 21 
 Alb. L. J. 398. If, however, the court had 
 no jurisdiction of the cause ; 7 Mich. IGl; or 
 if the indictment was so defective that no 
 valid judgment could be rendered upon it ; 
 36 Ga. 447 ; 105 Mass. 53 ; or if by any 
 overruling necessity the jury are discharged 
 without a verdict; 9 Wheat. 579; 68 N. C. 
 203 ; or if the term of the court comes to an 
 end before the trial is finished ; 5 Ind. 290 ; 
 or the jury are discharged with the consent of 
 the defendant, express or implied ; 9 Meto. 
 572; or if after verdict against the accused, 
 it has been set aside on his motion for a new 
 trial or on writ of error, or the judgment 
 thereon has been arrested; 13 Johns. 351; 
 8 Kans. 232; s. C. 12 Am. Rep. 469, n. ; 
 in these cases, the accused may again be put 
 upon trial and the proceedings had will con- 
 stitute no protection; Cooley, Const. Lim. 
 405. But if a prisoner has been indicted for 
 murder, convicted of murder in the second de- 
 gree, and afterwards granted a new trial on his 
 own motion, he cannot, on the second trial, be 
 convicted of a higher crime than murder in the 
 second degree ; 33 Wise. 121 ; s. c. 14 Am. 
 Rep. 748, n. ; 35 Mo. 105 ; 11 Iowa, 352 ; 
 contra, 20 Ohio St. 572 ; 8 Kans. 232 ; S. C. 
 12 Am. Rep. 469, n. Where the indictment 
 was good and the judgment erroneously ar- 
 rested, the verdict was held to be a bar ; 2 
 Yerg. 24. Where a prisoner during his trial 
 fled the jurisdiction, and it became necessary 
 to discharge the jury, it was held that he was 
 never in jeopardy ; 13 Reporter, 105 (S. C. 
 of Cal.). See Dischakge of a Jury. 
 
 JERGUER. In English Law. An offi- 
 cer of the custom-house, who oversees the 
 waiters. Techn. Diet. 
 
 JETTISON, JETSAM. The casting out 
 of a vessel, from necessity, a part of the 
 lading. The thing so cast out. 
 
 It differs from flotsam in this, that In the lat- 
 ter" the goods float, while in the former they sink, 
 and remain under water. It differs also from 
 ligan. 
 
 The jettison must be made for sufficient 
 cause, and not for groundless timidity. It 
 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. 
 
 If the residue of the cargo be saved by 
 such sacrifice, the property saved is bound to 
 
 pay a proportion of the loss. In ascertain- 
 ing 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, 185-187 ; Park. Ins. 123 ; 
 Pothier, Charte-partie, n. 108 et suiv. ; Boulay- 
 Paty, Dr. Com. tit. 13; Pardessus, Dr. Com. 
 n. 734 ; 1 Ware, 9. The owner of a cargo 
 jettisoned has a maritime lien on the vessel 
 for the contributory share from the vessel on 
 an adjustment of the average, which may be 
 enforced by a proceeding in venue in the ad- 
 miralty; 19 How. 162; 2 Pars. Marit. Law, 
 373. See Average; Adjustment. 
 
 JEUX DE BOURSE. In French Law. 
 A kind of gambling or speculation, which 
 consists of sales and purchases which bind 
 neither of the parties to deliver the things 
 which are the object of the sale, and which 
 are settled by paying the difference in the 
 value of the things sold between the day of 
 the sale and that appointed for delivery of 
 such things. 1 Pardessus, Droit Com. n. 1 62. 
 
 JOB. The whole of a thing which is to 
 be done. In this sense it is employed in the 
 Civil Code of Louisiana, art. 2727 : " To 
 build by plot, or to work by the job," says 
 that article, "is to undertake a building for 
 a certain stipulated price." See Duranton, 
 du Contr. de Louage, liv. 3, t. 8, nn. 248, 
 263 ; Pothier, Contr. de Louage, nn. 392, 
 394 ; Deviation. 
 
 JOBBER. In Commercial Law. One 
 who buys and sells articles for others. Stock- 
 jobbers are those who buy and sell stocks for 
 others. This term is also applied to those 
 who speculate in stocks on their own account. 
 
 JOCALIA (Lat.). Jewels. This term 
 was formerly more properly applied to those 
 ornaments which women, although married, 
 call their own. When these jocalia are not 
 suitable to her degree, they are assets for the 
 payment of debts ; 1 RoUe, Abr. 911. 
 
 JOINDER. In Pleading. Union ; con- 
 currence. 
 
 Of Actions. In Civil Cases. The 
 union of two or more causes of action in the 
 same declaration. 
 
 At common law, to allow a joinder, the 
 form of actions must be such that the same 
 plea may be pleaded and the same judgment 
 given on all the counts of the declaration, or, 
 the counts being of the same nature, that the 
 same judment may be given on all ; 2 Saund. 
 177 c; 1 Term, 276; Comyns, Dig. Actions 
 (G) ; 16 N. Y. 548; 6 Du. N. Y. 43 ; 4 Cal. 
 27; 12 La. An. 873; 33 N. H. 495. And 
 all the pauses of action must have accrued to 
 the plaintiif or against the defendant ; 12 La. 
 An. 44 ; in the same right, though it may 
 have been by different titles. Thus, a plain- 
 tiff cannot join a demand iit his own right to 
 one_ as representative of another person or 
 against the defendant himself to one against 
 him in a representative capacity; 2 Viner 
 
JOINDER 
 
 JOINDER 
 
 Abr. 62; Bacon, Abr. Action in General 
 (C) ; 21 Barb. 246. See 25 Mo. 357. 
 
 In real actions there can be but one count. 
 
 In mixed actions joinder occurs, though 
 but infrequently ; 8 Co. 876; Poph. 24; Cro. 
 Eliz. 290. 
 
 In personal actions joinder is frequent. 
 
 By statutes, in many of the states, joinder 
 of actions is allowed and required to a greater 
 extent than at common law. 
 
 In Criminal Cases. Different offences 
 of the same general nature may be joined in 
 the same indictment; 1 Chitty, Cr. Law, 
 253, 255; 29 Ala. N. S. 62; 10 Cush. 530; 
 28 Miss. 267; 4 Ohio St. 440; 6 McLean, 
 596 ; 4 Denio, 133 ; 18 Me. 103 ; 1 Cheves, 
 103 ; 4 Ark. 56 ; see 14 Gratt. 687 ; and it is 
 no cause of arrest of judgment that they have 
 been so joined; 29 E. L. & Eq. 536; 29 
 N. H. 184; 11 Ga. 225; 3 W. & M. 164; 
 see 1 Strobh. 455 ; but not in the same count ; 
 6 R. I. 385; 24 Mo. 353; 1 Rich. 260; 
 4 Humphr. 25; and an indictment may be 
 quashed, in the discretion of the court, where 
 the counts are joined in such manner as will 
 confound the evidence ; 17 Mo. 544 ; 19 Ark. 
 563, 577; 20 Miss. 468. 
 
 No court, it is said, will, however, permit a 
 prisoner to be tried upon one indictmentfortwo 
 distinct and separate crimes ; 29 N. H. 184. 
 See 5 S. & R. 59 ; 12 id. 69 ; 10 Cush. 530. 
 
 In Demurrer. The answer made to a 
 demurrer. Co. Litt. 71 b. The act of 
 making such answer is merely a matter of 
 form, but must be made within a reasonable 
 time; 10 Rich. 49. 
 
 Of Issue. 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 him- 
 self 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. 
 
 Of Parties. In Civil Cases. 
 
 In Equity. 
 
 All parties materially interested in the sub- 
 ject of a suit in equity should be made parties, 
 however numerous ; Mitf. Eq. Plead. 144 ; 2 
 Eq. Cas. Abr. 179 ; 3 Swanst. 139; 1 Pet. 
 299 ; 2 id. 482 ; 13 id. 359 ; 7 Cra. 72 ; 2 
 Mas. 181 ; 5 McLean, 444 ; 2 Paine, 536 ; 1 
 Johns. Ch. 349; 2 Bibb, 184; 24 Me. 20; 
 
 3 Vt. 160; 7 Conn. 342; 11 Gill & J. 426; 
 
 4 Rand. 451 ; 1 Bail. Ch. 384 ; 7 Ired. Eq. 
 No. C. 261 ; 2 Stew. Ala. 280; 6 Blackf. 
 223. But, where the parties are very nume- 
 rous, a portion may appear for all in the same 
 situation; 16 Ves. 321; 16 How. 288; 11 
 Conn. 112; 3 Paige, Ch. 222; 19 Barb. 517. 
 
 Mere possible or contingent interest does 
 not render its possessor a necessary party ; 6 
 
 Wheat. 550; 3 Conn. 354; 5 Cow. 719. 
 And see 3 Bibb, 86 ; 6 J. J. Marsh. 425. 
 
 There need be no connection but commu- 
 nity of interests ; 2 Ala. n. s. 209. 
 
 Plaintiffs. 
 
 All persons having a unity of interest in 
 the subject-matter; 3 Barb. Ch. 397 ; 2 Ala. 
 N. s. 209 ; and in the object to be attained ; 
 
 2 Iowa, 55 ; 3 id. 443 ; who are entitled to 
 relief; 14 Ala. N. 8. 135; 17 id. 631; may 
 join as plaintiffs. The claims must not arise 
 under different contracts ; 8 Pet. 123; 5 J. J. 
 Marsh. 154 ; 6 id. 33 ; or to the same person 
 in different capacities; 1 Busb. Eq. 196. 
 And see 1 Paige, Ch. 637 ; 4 id. 23 ; 5 Mete. 
 Mass. 118. 
 
 Assignor and assignee. The assignor of a 
 contract for the sale of lands should be joined 
 in a suit by the assignee for specific perform- 
 ance; 3 Sandf. Ch. 614; and the assignor of 
 part of his interest in a patent in a suit by 
 assignee for violation ; 3 McLean, 350. 
 
 But he should not be joined where he has 
 parted with all his legal and beneficial inter- 
 est; 32 Me. 203, 343; 13 B. Monr. 210. 
 The assignee of a mere chose in action may 
 sue in his own name, in equity ; 1 7 How. 43 ; 
 5 Wise. 270 ; 6 B. Monr. 540 ; 7 id. 273. 
 
 Corporations. Two or more may join if 
 their interest is joint ; 8 Yes. 706. A cor- 
 poration may join with its individual members 
 to establish an exemption on their behalf ; 3 
 Anstr. 738. 
 
 Husband and wife must join where the 
 husband asserts an interest in behalf of his 
 wife; 6 B. Monr. 514; 3 Hayw. 252; 5 
 Johns. Ch. 196; 9 Ala. 133: as, for a 
 legacy; 5 Johns. Ch. 196; or for property 
 devised or descended to her during coverture ; 
 5 J. J. Marsh. 179, 600 ; or where he applies 
 for an injunction to restrain a suit at law 
 against both, affecting her interest ; 1 Barb. 
 Ch. 313. 
 
 Idiots and lunatics may be joined or not in 
 bills by their committees, at the election of 
 the committee, to set aside acts done by them 
 whilst under imbecility; 1 Ch. Cas. 112; 1 
 Jac. 377; 7 Johns. Ch. 139. They must be 
 joined in suits brought for the partition of 
 real estate ; 3 Barb. Ch. 24. In England it 
 seems to be the custom to join ; 2 Vern. 678. 
 See Story, Eq. PI. § 64, and note; Story, 
 Eq. Jur. § 1336, and note. 
 
 Infants. Several may join in the same bill 
 for an account of the rents and profits of 
 their estate; 2 Bland, Ch. 68. 
 
 Trustee and cestui que trust should join in 
 a bill to recover the trust fund ; 5 Dana, 128; 
 but need not to foreclose a mortgage ; 5 Ala. 
 447; 4 Abb. Pr. 106; nor to redeem one 
 made by the trustee ; 2 Gray, 190. And see 
 
 3 Edw. Ch. 175; 7 Ala. N. 8. 886. 
 
 Defendants. 
 
 In general, all persons interested in the 
 subject-matter of a suit who cannot be made 
 plamtiffs should be- made defendants. They 
 
JOINDER 
 
 JOINDER 
 
 may claim under different rights if they 
 possess an interest centring in the point in 
 issue; 4 Cow. 682. 
 
 Bills for discovery need not contain all the 
 parties interested as defendants; 1 M'Cord, 
 Ch. 301 ; and a person may be joined merely 
 as defendant in such bill ; 3 Ala. 214. A 
 person should not be joined as a party to 
 such bill who may be called as a witness on 
 trial; 13 111. 212; 3 Barb. Ch. 4S2. And 
 see 1 Chandl. 286. 
 
 Assignor and assignee. An assignor who 
 retains even the slightest interest in the sub- 
 ject-matter must be made a party ; 2 Dev. & 
 B. Eq. 395; 1 Green, Ch. 347; 2 Paige, 
 Ch. 289 ; 11 Cush. Ill : as a covenantee in a 
 suit by a remote assignee ; 1 Dana, 585 ; and 
 the original plaintiff in a creditor's bill by the 
 assignee of a judgment; 4 B. Monr. 594. 
 
 A fraudulent assignee need not be joined 
 in a bill by a creditor to obtain satisfaction 
 out of a fund so transferred ; 1 Paige, Ch. 637. 
 The assignee of a judgment must be a party in 
 a suit to stay proceedings ; 1 1 Paige, Ch. 438. 
 
 A party who acquires his interest pendente 
 lite cannot be made a party ; 5 111. 354. 
 Otherwise of an assignee in insolvency, who 
 must be madg a party ; 3 Johns. 543 ; 1 
 Johns. Ch. 339; 10 Paige, Ch. 20. 
 
 Corporations and associations. A corpo- 
 ration charged with a duty should be joined 
 with the trustees it has appointed, in a suit 
 for a breach ; 1 Gray, 399 ; 7 Paige, Ch. 
 281. Where -the legal title is in part of the 
 members of an association, no others need be 
 joined; 1 Gilm. 187. 
 
 Officers and agents may be made parties 
 merely for purposes of discovery ; 9 Paige, 
 Ch. 188. 
 
 Creditors who have repudiated an assign- 
 ment and pursued their remedy at law are 
 properly made parties to a bill brought by the 
 others against the trustee for an account and 
 the enforcement of the trpst; 3 Wise. 367. 
 So, when judgments are impeached and 
 sought to be set aside for fraud, the plaintiffs 
 therein are indispensable parties to the bill ; 
 20 Ala. 200. To a bill brought against an 
 assignee by a creditor claiming the. final bal- 
 ance, the preferred creditors need not be 
 made parties ; 28 Vt. 465. See, also, 20 
 How. 94; iMd. Ch. Dec. 299; 3 Mete. 
 Mass. 474; 11 Paige, Ch. 49. 
 
 Debtors must in some cases be joined with 
 the executor in a suit by a creditor ; though 
 not ordinarily ; Story, Eq. PI. § 227 ; 1 
 Johns. Ch. 305. Where there are several 
 debtors, all must be joined; 1 M'Cord, Ch. 
 301 ; unless utterly irresponsible ; 1 Mich. 
 446. Judgment debtors must in some cases 
 be joined in suits between the creditor and 
 assignees or mortgagees ; 5 Sandf. 271. 
 
 Executors and administrators should be 
 made parties to a bill to dissolve a partner- 
 ship ; 21 Ga. 6 ; to a bill against heirs to dis- 
 cover assets ; 7 B. Monr. 127 ; to a bill by 
 creditors to subject lands fraudulently con- 
 veyed by the testator their debtor, to the sat- 
 
 isfaction of their debt; 9 Mo. 304. See, also, 
 21 Ga. 433 ; 6 Munf. 520 ; 7 E. L. & Eq. 64. 
 
 Foreclosure suits. All persons_ having an 
 interest, legal or equitable, existing at the 
 commencement of a suit to foreclose mort- 
 gaged premises, must be made parties, or they 
 will not be bound ; 4 Johns. Ch. 605 ; 10 
 Paige, Ch. 307 ; 10 Ala. n. s. 283 ; 3 Ark. 
 364; 6 McLean, 416; It Tex. 526; includ- 
 ing the mortgagor within a year after the sale 
 of his interest hy the sheriff; 4 Johns. Oh. 
 649 ; and his heirs and personal representa- 
 tive after his death; 2 Bland, 684. But 
 bond-holders for whose benefit a mortgage has 
 been made by a corporation to a trustee need 
 not be made parties ; 5 Gray, 162 ; Jones, 
 Railroad Securities, § 42. A person claiming 
 adversely to mortgagor and mortgagee cannot 
 be made a defendant to such suit ; 3 Barb. 
 Ch. 438. 
 
 Heirs, distributees, and devisees. All the 
 heirs should be made parties to a bill respect- 
 ing the real estate of the testator; 3 N. Y. 
 261; 2 Ala. N. 8. 571; 4 J. J. Marsh. 
 231 ; 7 id. 432 ; 5 111. 452 ; although the tes- 
 tator was one of several mortgagees of the 
 vendee, and the bill be brought to enforce 
 the vendor's lien ; 6 B. Monr. 74 ; but need 
 not to a bill affecting personalty ; 1 M'Cord, 
 Ch. 280. All the devisees are necessary^ar- 
 ties to a bill to set aside the will ; 2 Dana, 
 
 1 55 ; or to enjoin executors from selling lands 
 belonging to the testator's estate ; 2 T. B. 
 Monr. 30. All the distributees are necessary 
 parties to a bill for distribution ; 1 B. Monr. 
 27 ; to a bill by the widow of the intestate 
 against the administrator to recover her share 
 of the estate ; 4 Bibb, 543 ; and to a bill 
 against an administrator to charge the estate 
 with an annual payment to preserve the resi- 
 due; 1 Hiil, Ch. 51. See, also, 11 Paige, 
 Ch. 49; 2 T. B. Monr. 95; 5 id. 573. 
 
 Idiots and lunatics should be joined with 
 their committees when their interests conflict 
 and must be settled in the suit ; 2 Johns. Ch. 
 242 ; 3 Paige, Ch. 470. 
 
 Partners must, in general, be all joined in 
 a bill for dissolution of the partnership, but 
 need not if without the jurisdiction ; 1 7 How. 
 468 ; 12 Mete. 329. And see 3 Stor. 335. 
 
 Assignees of insolvent partners must be 
 joined; 10 Me. 255. 
 
 Dormant partners need not be joined when 
 not known in the transaction on which the 
 billis founded ; 7 Blaekf. 218. 
 
 Principal and agent should be joined if 
 there be a charge of fraud in which the agent 
 participated; 3 Stor. 611 ; 12 Ark. 720; and 
 the agent should be joined where he binds 
 himself individually ; 3 A. K. Marsh. 484. 
 
 See, also, 5 H. & J. 147 ; 8 Ired. Eq. 229 ; 
 
 2 D. & B. 857 ; 1 Barb. Ch. 157. 
 
 Trustee and cestui que trust. If a trustee has 
 parted with the trust fund, the cestui que trvst 
 may proceed against the trustee alone to com- 
 pel satisfaction, or the fraudulent assignee 
 may be joined ■w'ith him at the election of the 
 complainant ; 2 Paige, Ch. 278. 
 
JOINDER 
 
 JOINDER 
 
 The trustees under a settlement of real 
 estate, against whom a trust or power given 
 to them to sell the estate is to be enforced, 
 are necessary parties to a suit for that pur- 
 pose ; 39 E. L. & Eq. 76. See, also, id. 225 ; 
 24 Miss. 597 ; 19 How. 376 ; 5 Du. N. Y. 
 168; 8 Md. S4. 
 
 At Law. 
 
 In actions ex contractu. 
 
 All who have a joint legal interest or are 
 jointly entitled must join in an action on a 
 contract, even though it be in terms several, 
 or be entered into by one in behalf of all; 
 Brown, Partn. 18; 1 Saund. 153; Archb. 
 Civ. PI. 58; Mete. Yelv. 177, n. 1 ; 10 
 East, 418; 8 S. & R. 308; 15 Me. 295; 
 
 3 Brev. 249; 3 Ark. 565; 16 Barb. 325: 
 as, where the consideration moves from 
 several jointly; 2 Wms. Saund. 116 o; 
 
 4 M. & W. 295 ; 5 id. 698 ; or was taken 
 from a joint fund; 19 Johns. 218 ; 1 Meigs, 
 394. 
 
 One of several joint obligees, payees, or 
 assignees may sue in the name of all ; 10 
 Yerg. 235. See 4 Saund. 657. 
 
 Some contracts may be considered as either 
 joint or several, and in such case all may 
 join, or each may sue separately; but part 
 cannot join leaving the others to sue sepa- 
 rately. 
 
 In an action for a breach of a joint contract 
 made by several, all the contracting parties 
 should be made defendants; 1 Saund. 158 
 n. ; even though one or more be bankrupt or 
 insolvent ; 2 Maule & S. 33 ; but see 1 Wils. 
 89 ; or an infant ; but not if the contract be 
 utterly void as to him ; 3 Taunt. 307 ; 5 
 Johns. 160, 280; 11 id. 101; 5 Mass. 270; 
 1 Pick. 500. 
 
 On a joint and several contract, each may 
 be sued separately, or all together ; 1 Pet. 73 ; 
 1 Wend. 524. 
 
 Executors and administrators must bring 
 their actions in the joint names of all; 5 
 Scott, N. E. 728 ; 1 Saund. 291 ^ ; 2 id. 
 213; 2 N. & M'C. 70; 2 Penning. 721; 1 
 Dutch. 374; even though some are infants; 
 Broom, Part. 104. 
 
 All the executors who have proved the will 
 are to be joined as defendants in an action on 
 the testator's contract ; Broom, Part. 196; 
 1 Lev. 161 ; 1 Cr. M. & R. 74 ; 4 Bingh. 
 704. But an executor de son tort is not to 
 be joined with the rightful executor. And 
 the executors are not to be joined with other 
 persons who were joint contractors with the 
 deceased ; 2 Wheat. 344 ; 6 S. & R. 272 ; 
 
 5 Cal. 173. 
 
 Administrators are to be joined, like ex- 
 ecutors ; Comyns, Dig. Administrators (B 
 12). Foreign executors and administrators 
 are not recognized as such, in general ; 2 
 Jones, Eq. 276; 10 Rich. 393; 7 Ind. 211. 
 
 Husband and wife must join to recover 
 rrtit due the wife before coverture on her 
 lease while sole ; Co. Litt. 55 b ; Cro. Eliz. 
 
 700 ; on the lease by both of lands in which 
 she has a life estate, where the covenant runs 
 to both ; 20 Barb. 269 ; but on a covenant 
 generally to both, the husband may sue alone ; 
 2 Mod. 217 ; 1 B. & C. 443 ; 1 Bulstr. 331 ; 
 in all actions in implied promises to the wife 
 acting in autre droit; Comyns, Dig. Baron 
 ^•jP. (V); 9M.&W. 694; 4 Tex. 283; as to 
 suit on a bond to both, see 2 Penning. 827 ; 
 on a contract running with land of which 
 they are joint assignees ; Woodf. Landl. & T. 
 190; Cro. Car. 503 ; in general, to recover 
 any of the wife's choses in action where the 
 cause of action would survive to her ; Co- 
 myns, Dig. Baron §• F. (V) ; 1 Chitty, PI. 
 17; 1 Maule & S. 180; 1 P. A. Browne, 
 263; 13 Wend. 271 ; 10 Pick. 470; 9 Ired. 
 163 ; 21 Conn. 557 ; 24 Miss. 245 ; 2 Wise. 22. 
 
 They may join at the husband's election in 
 suit on a covenant to repair, when they be- 
 come joint grantees of a reversion ; Cro. Jac. 
 399 ; to recover the value of the wife's choses 
 in action ; 5 Harr. Del. 57 ; 24 Conn. 45 ; 2 
 Wise. 22; 2 Mod. 217; 2 Ad. & E. 30 ; 2 
 Maule & S. 396, n. ; in case of joinder the 
 action survives to her; 6 M. & W. 426 ; 10 
 B. & C. 558 ; in case of an express promise 
 to the wife, or to both where she is the meri- 
 torious cause of action; Cro. Jac. 77, 205; 
 1 Chitty, PI. 18; 5 Harr. Del. 57; 32 Ala. 
 N. s. 30. 
 
 They must, in general, be joined in actions 
 on contracts entered into by the wife dum 
 sola; 1 Kebl. 281 ; 2 Term, 480; 7 id. 348; 
 
 1 Taunt. 217; 7 id. 432; 8 Johns. 149; 1 
 Grant, Cas. 21 ; 5 Harr. Del. 357 ; 25 Vt. 
 207 ; see 15 Johns. 403 ; 17 id. 167 ; 7 Mass. 
 291 ; where the cause of action accrues against 
 the wife ire autre droit; Cro. Car. 518. Thej' 
 may be joined when the husband promises 
 anew to pay the debt of the wife contracted 
 dum sola; 7 Term, 349 ; for rent or breaches 
 of covenant on a joint lease to both for the 
 wife's benefit ; Broom, Part. 178, 179. 
 
 Joint tenants must join in debt or an avowry 
 for rent ; Broom, Part. 24 ; but one of sev- 
 eral may make a separate demisfe, thus sever- 
 ing the tenancy; Bacon, Abr. Joint Ten. 
 (H 2) ; 12 East, 39, 57, 61 ; 3 Campb. 190; 
 and one may maintain ejectment against his 
 co-tenants ; Woodf. Landl. & T. 789. 
 
 Partners must all join in suing third par- 
 ties on partnership transactions ; 1 Esp. 183 ; 
 
 2 Campb. 302; 18 Barb. 534; 7 Rich. 118; 
 including only those who were such at the 
 time the cause of action accrued ; Broom, 
 Part. 65 ; although one or more may have 
 become insolvent; 2 Cr. & M. 318; but not 
 joining the personal representative of a de- 
 ceased partner ; 2 Salk. 444 ; 2 Maule & S. 
 225 ; 4 B. & Aid. 374 ; 9 B. & C. 538 ; with 
 a limitation to the actual parties to the instru- 
 ment in case of specialties ; 6 Maule & S. 75 ; 
 and including dormant partners or not, at the 
 election of the ostensible partners ; 2 Esp.' 
 468 ; 10 B. & C. 671 ; 4 B. & Aid. 437. See 
 4 Wend. 628. Where one partner contracts 
 in his name for the firm, he may sue alone, or 
 
JOINDER 
 
 8 
 
 JOINDER 
 
 all may join; 4 B. & Ad. 815; 4 B. & Aid. 
 437; but alone if he was evidently dealt with 
 as the sole party in interest ; 1 Maule & S. 
 249. 
 
 The surviving partners ; 3 Ball & B. 30 ; 
 1 B. & Aid. 29, 522 ; 18 Barb. 592 ; must 
 all be joined as defendants in suits on part- 
 nership contracts; 1 East, 30. 'And third 
 parties are not bound to know the arrange- 
 ments of partners amongst themselves; 4 
 Maule & S. 482; 8 M. & W. 703, 710. 
 
 A partner need not be joined if he was not 
 known as such at the time of making the con- 
 tract and there was no indication of his being 
 a partner; 1 Bosw. 28; 19 Ark. 701. And 
 see Partnership. 
 
 Tenants in common should join in an action 
 on any joint contract ; Comyns, Dig. Abate- 
 ment (E 10). 
 
 lyustees must all join in bringing an ac- 
 tion; 1 Wend. 470. 
 
 In actions ex deticio. 
 
 Joint owners must, in general, join in an 
 action for a tortious injury to their property ; 
 1 Saund. 291 jr; 6 Term, 766 ; 7 id. 297 ; 11 
 N. H. 141 ; in trover, for its conversion ; 5 
 East, 407 ; in replevin, to get possession ; 6 
 Pick. 571; 8 Mo. 522; 15 Me. 245; or in 
 detinue, for its detention, or for injury to 
 land ; 3 Bingh,. 455 ; 29 Barb. 9. 
 
 So may several owners who sustain a joint 
 damage ; 1 W. & M. 223. 
 
 For injury to the person, plaintiffs cannot, 
 in general, join; 2 Wms. Saund. 117 a; 
 Cro. Car. 512 ; Cro. Eliz. 472. 
 
 Partners may join for slanders ; 3 Bingh. 
 452; 10 id. 270; 1 C. & K. 568; 8 C. & P. 
 708; for false representations ; 17 Mass. 182; 
 injuring the partnership. 
 
 An action for the mfringement of letters 
 patent may be brought jointly by all the par- 
 ties who at the time of the infringement were 
 the holders of the title ; 1 Gall. 429 ; 1 
 McAU. 82. 
 
 In cases where several can join in the com- 
 mission of a tort, they may be joined in an 
 action as defendants ; 3 East, 62 ; 6 Taunt. 
 29; 14 Johns. 462; 19 id. 381; as, in 
 trover ; 1 Maule & S. 688 ; in trespass ; '2 
 Wms. 117 a; for libel; Broom, Part. 249, — 
 not for slander ; Cro. Jac. 647 ; in trespass ; 
 1 C. &M. 96. 
 
 Husband and wife must join in action for 
 direct damages resulting from personal injury 
 to the wife ; 3 Bla. Com. 140 ; 4 Iowa, 420 ; 
 in detinue, for the property which was the 
 wife's before marriage ; 2 Tayl. 266 ; see 30 
 Ala. N. s. 582 ; for injury to the wife's pro- 
 perty before marriage ; 2 Jones, No. C. 59 ; 
 where the right of action accrues to the wife 
 in autre droit; Comyns, Dig. Baron If F. 
 (V); 11 Mod. 177; 2 B. Se P. 407; and, 
 generally, in all cases where the cause of ac- 
 tion by law survives to the wife ; 4 B. & Aid. 
 523 ; 10 Pick. 470 ; 35 Me. 89. 
 
 They may join for slander of the wife, if 
 
 the words spoken are actionable per se, for 
 the direct injury ; 4 M. & W. 5 ; 22 Barb. 
 396 ; 2 Hill, N. Y. 309 ; 2 T. B. Monr. 66 ; 
 26 Mo. 580; 4 Iowa, 420; 11 Cush. 10; and 
 in ejectment for lands of the wife ; Broom, 
 Part. 235 ; 1 Bulstr. 21. 
 
 Theymust be joined as defendants for torts 
 committed by the wife before marriage ; Co. 
 Litt. 3516; 5 Binn. 43 ; or during coverture ; 
 19 Barb. 321; 2 E. D. Smith, 90; or for 
 libel or slander uttered by her ; 5 C. & P. 
 484 ; and in action for waste by the wife, 
 before marriage, as administratrix ; 2 Wms. 
 Ex. 1441. 
 
 They may be joined in trespass for their 
 joint act; 2 Stra. 1094 ; 4 Bingh. N. c. 96 ; 
 3 B. & Aid. 687 ; 6 Gratt. 213. 
 
 Joint tenants and parceners, during the 
 continuance df the joint estate, must join in 
 all actions ex delicto relative thereto, as in 
 trespass to their land, and in trover or reple- 
 vin for their goods; 2 Bla. Com. 182, 188; 
 Bacon, Abr. Joint Ten. (K) ; 2 Salk. 206 ; 
 29 Barb. 29. Joint tenants may join in an 
 action for slander of the title to their estate ; 
 3 Bingh. 455. They should be sued jointly, 
 in trespass, trover, or case, for any thing re- 
 specting the land held in common ; 5 Term, 
 651 ; Comyns, Dig. Abatement (F 6); 1 Wms. 
 Saund. 291 e. Joint tenants should join in an 
 avowry or cognizance for rent ; 3 Salk. 207 ; 
 1 td. 390 ; or for taking cattle damage feasant ; 
 Bacon, Abr. Joint I'en. (K) ; or one joint ten- 
 ant should avow, in his own right, and as 
 bailiflf to the otlier; 3 Salk. 207. But a 
 tenant in common cannot avow the taking of 
 the cattle of a stranger upon the land damage 
 feasant, without making himself bailiff or 
 servant to his co-tenant ; 2 H. Bla. 388, 389 ; 
 Bacon, Abr. Replevin (K). 
 
 Master and servant, where co-trespassers, 
 should be joined though they be not equally 
 culpable; 2 Lev. 172; 1 Bingh. 418; 6 B. 
 & C. 559. Partners may join for a joint in- 
 jury in relation to the joint property ; 3 C. & 
 P. 196. They may be joined as defendants 
 where property is taken by one of the firm 
 for its benefit ; 1 C. & M. 93 ; and where 
 the firm makes fraudulent representations as 
 to the credit of a third person, whereby the 
 firm gets benefit ; 17 Mass. 182. 
 
 Tenants in common must join for a trespass 
 upon the lands held in common; Littleton, 
 §315; 15 Johns. 497; 8 Cow. 304; 28 
 Me. 136 ; or for taking away their com- 
 mon property ; Cro. Eliz. 143 ; or for detain- 
 ing it; 1 Hill, N. y. 234; or for a nuisance 
 to their estate ; 14 Johns. 246. 
 
 In Criminal Cases. Two or more per- 
 sons who have committed a crime may be 
 jointly indicted therefor; 7 Gratt. 619- fi 
 McLean, 696 ; 10 Ired. 153 ; 8 Blackf. 205 • 
 only where the offence is such that it may be 
 committed by two jointly; 3 Sneed, 107 
 
 They may have a separate trial, however 
 in the discretion of the court ; 15 111 530 • 1 
 Park. Cr. Ca. 424; 7 Gratt. 619; 10 Cush 
 530; 5 Strobh. 85; 9 Ala. N. s. 137 ; and 
 
JOINT ACTION 
 
 9 
 
 JOINT STOCK COMPANY 
 
 in some states as a matter of right ; 1 Park. 
 
 Cr. Ca. 371. 
 
 See Dicey, Parties ; Steph. PL 
 
 JOINT ACTION. An action brought 
 
 by two or more as plaintiffs or against two or 
 
 more as defendants. See 1 Parsons, Contr. ; 
 
 Actions ; Joinder, § 1. 
 
 JOINT BOND. The bond of two or 
 
 more obligors, the action to enforce which 
 
 must be joint against them all. 
 
 JOINT AND SEVERAL BOITD. A 
 
 bond of two or more obligors, who bind them- 
 selves jointly and severally to the obligees, 
 who can sue all the obligors jointly, or any 
 one of them separately, for the whole amount, 
 but cannot bring a joint action against part, — 
 that is, treat it as joint as to some and seve- 
 ral as to others. Upon the payment of the 
 whole by one of such obligors, a right to con- 
 tribution arises in bis favor against the other 
 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. 
 
 It is a general rule that a joint contract sur- 
 vives, whatever may be the beneficial interests 
 of the parties under it. When 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, etc. ; 1 Ball. 65, 248 ; Addi- 
 son, Contr. 285. And when the obligation 
 or promise is to perform something jointly by 
 the obligors or promisors, and one dies, the 
 action must be brought against the survivor ; 
 Hamm. Partn. 156 ; Barb. Partn. 
 
 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 ; 
 Add. Contr. 285. See Contracts; Par- 
 ties TO Actions ; Co-Obligor. 
 
 JOINT EXECUTORS. Those who are 
 joined in the execution of a will. 
 
 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 tes- 
 tator's goods, are deemed, as regards the per- 
 sons with whom they contract, the acts of all ; 
 Bacon, Abr. ; 1 1 Viner, Abr. 358 ; Comyns, 
 Dig. Administration (B 12); 1 Dane, Abr. 
 583; 2 Litt. Ky. 315 ; Dy. 23, in marg. ; 16 
 S. & R. 337. But an executor cannot, with- 
 out 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. 267. 
 
 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 col- 
 , league. He may be rendered liable, how- 
 ever, for the misplaced confidence which he 
 
 may have reposed in his co-executor : 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. 
 
 I ; 1 Sch. & L. 341 ; 2 id. 231 ; 7 East, 256 ; 
 
 II Johns. 16; 11 S. & R. 71 ; 5 Johns. Ch. 
 283. And see 2 Brown, Ch. 116 ; 3 id. 112 . 
 Fonbl. Eq. b. 2, c. 7, s. 5, n. k. 
 
 Upon the death of one of several joint exe- 
 cutors, the right of administering the estate of 
 the testator devolves upon the survivors ; 3 Atk. 
 509; Comyns, Dig. Administration (B 12). 
 
 JOINT INDICTMENT. One indict- 
 ment brought against two or more offenders, 
 charging the defendants jointly. It may be 
 where there is a joint criminal act, without 
 any regard to any particular personal de- 
 fault or defect of either of the defendants : 
 thus, there may be a joint indictment against 
 thejointkeepew of a gaming-house. 1 Ventr. 
 302 ; 2 Hawk. PI. Cr. 240. 
 
 JOINT STOCK BANKS. In EnglUh 
 Laiv. A species of quasi corporations, or 
 companies regulated by deeds of settlement. 
 
 In some respects they stand in the same situa- 
 tion as other unincorporated bodies; but they 
 differ from the latter in this, that they are in- 
 vested by certain statutes with powers and privi- 
 leges usually incident to corporations. These 
 enactments provide for the continuance of the 
 partnership notwithstanding a change of part- 
 ners. 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 STOCK COMPANY. An asso- 
 ciation of individuals for purposes of profit, 
 possessing a common capital contributed by 
 the members composing it, such capital being 
 commonly divided into shares, of which each 
 member possesses one or more, and which are 
 transferable by the owner. The business of 
 the association is under the control of certain 
 selected individuals, called directors ; such 
 an association was, at common law, merely 
 s> large partnership ; Shelford, Joint St. 
 Comp. 1. A quasi partnership, invested by 
 statutes, in England and many of the states, 
 with some of the privileges of a corporation. 
 See 10 Wall. 556 ; L. R. 4 Eq. 695. 
 
 There is in such a company no dilectus per- 
 sonarum, that is, no choice about admitting 
 partners ; the shares into which the capital is 
 divided are transferable at the pleasure of the 
 person holding them, and the assignee becomes 
 a partner by virtue of the transfer, and the 
 rights and duties of the partners or members 
 are determined by articles of association, or, 
 in -England, by a deed of settlement. A 
 partnership whereof the capital is divided, or 
 agreed to be divided, into shares so as to be 
 transferable without the express consent of 
 all the CO- partners. 1 Parsons, Contr. 121. 
 The 7 & 8 Vict, includes within the term joint 
 
JOINT TENANTS 
 
 It) 
 
 JOURNAL 
 
 stock company all life, fire, and marine insur- 
 ance companies, and every partnership con- 
 sisting of more than twenty-five members. 
 In this country, where there were formerly 
 no statutes providing for joint stock com- 
 panies, they were rather to be regarded as 
 partnerships; 2 Lindl. Part. 1083 ; 63 Penn. 
 273 ; 3 Kent, 262. Statutes regulating the 
 formation of these companies exist in New 
 York, Massachusetts, and Maine. In New 
 York they have all the attributes of a cor- 
 poration, except the right to have and use a 
 common seal, and an action is properly 
 brought for or against the president or treas- 
 urer; 74 N. Y. 234; but it has been held 
 that a company formed under the New York 
 law, is not a corporation, but must be sued as 
 a partnership ; 128 Mass. 445; 60 Me. 468; 
 contra, 50 Barb. 157 ; 6 N. Y. 542. An 
 English joint stock company, however, is held 
 to be a corporation in this country ; 10 Wall. 
 566 ; see infra. The words, joint stock 
 company, in the Massachusetts statutes, refer 
 to companies organized under the general 
 laws as corporations; 121 Mass. 524. 
 
 "A joint stock company (in this case a fire 
 insurance company) which by its deed of 
 settlement in England and certain acts of 
 parliament is endowed with the faculties and 
 powers mentioned below, is a corporation and 
 will be so held in this country, notwithstand- 
 ing the acts of parliament declaring it shall 
 not be so held. These faculties and powers 
 are : 1 . A distinctive artificial name by which it 
 can make contracts. 2. A statutory form to 
 sue and be sued in the name of its officers as 
 representing the association. 3. A statutory 
 recognition of the association as an entity dis- 
 tinct from its members, by allowing them to 
 sue and be sued by it. 4. A provision for its 
 perpetuity by transfer of its shares, so as to 
 secure succession of membership. Such cor- 
 porations, whether organized under the laws 
 of a state of the Union, or a foreign govern- 
 ment, may be taxed by another state, for the 
 privilege of conducting their corporate busi- 
 ness within the latter." 10 Wall. 566. See 
 Shelf. ; Steph. ; Joint St. Co. ; Lindl. Parnt. 
 
 JOINT TENANTS. Two or more per- 
 sons to whom are granted lands or tenements 
 to hold in fee-simple, fee-tail, for life, for 
 years, or at will. 2 Bla. Com. 179. The 
 estate which they thus hold is called an estate 
 in joint tenancy. See Estate in Joint 
 Tenancy ; Jus Accrescbndi ; SuEvivoa. 
 
 JOINT TRUSTEES. Two or more per- 
 sons who are intrusted with property for the 
 benefit of one or more others. 
 
 Unlike joint executors, joint trustees can- 
 not 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 re- 
 sponsible for money received by their co- 
 
 trustees, if the receipt be mven 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 money, particularly where 
 he has it in his power to secure it, renders 
 him responsible; 11 S. & K. 71. See 1 
 Sch. & L. 341 ; 5 Johns. Ch. 283 ; Bac. 
 Abr. Uses and Trusts, K ; 2 Brown, Ch. 
 116; 3 id. 112. 
 
 JOINTRESS, JOINTURESS. A wo- 
 man who has an estate settled on her by her 
 husband, to hold during her life, if she sur- 
 vive him. Co. Litt. 46. 
 
 JOINTURE. A joint estate limited to 
 both husband and wife. A competent liveli- 
 hood of freehold for the wife, of lands and 
 tenements, to take effect, in profit or posses- 
 sion, presently after the death of the husband, 
 for the life of the wife at least. 
 
 Jointures are regulated by the statute of 27 
 Hen. VIII. c. 10, commonly called the stat- 
 ute of uses. 
 
 To make a good jointure, the following 
 circumstances must concur, namely : It must 
 take effect, in possession or profit, immediately 
 from the death of the husband. It must be 
 for the wife's life, or for some greater estate. 
 It must be limited to the wife herself, and not 
 to any other person in trust for her. It must 
 be made in satisfaction for the wife's whole 
 dower, and not of part of it only. The estate 
 limited to the wife must be expressed or 
 averred to be in satisfaction of her whole 
 dower. 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 pre- 
 vents 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 Bla. Com. 137. In 
 its more enlarged sense, a jointure signifies a 
 joint estate limited to both husband and wife ; 
 2 Bla. Com. 137. See 14 Viner, Abr. 540; 
 Bacon, Abr. ; 2 Bouvier, Inst. n. 1761 et 
 seq. ; Washb. E. P. 
 
 JOUR._ A French word, signifying day. 
 It is used in our old law-books : as, tout jours, 
 forever. 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. 
 
 JOURNAL. In Maritime 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 occuiv 
 rence during the voyage. Another name for 
 log-book. Chitty, Law of Nat. 199. 
 
 In Commercial Law. A book used 
 among merchants, in which the contents of 
 the waste-book are separated every month 
 
JOURNEYS ACCOUNT 
 
 tl 
 
 JUDGE 
 
 and entered on the debtor and creditor side, 
 for more convenient posting in the ledger. 
 
 In Legislation. An account of the pro- 
 ceedings of a legislative body. 
 
 The constitution of the United States, art. 1, 
 B. 5, directs that " each house shall Iseep a 
 journal of its proceedings, and from time to time 
 putilish the same, excepting such parts as may, 
 in their judgment, require secrecy." See 2 
 Story, Const. 301. 
 
 The constitutions of the several states contain 
 similar provisions. 
 
 The journal of either house is evidence of the 
 action of that house upon all matters before it ; 
 7 Cow. 613 ; Cowp. 17. It is a public record of 
 which the courts may take judicial notice ; 5 
 W. Va. 8.5 ; s. c. 17 Am. Rep. 28 ; 16 id. 647 ; 
 94 U. S. 260. Contra, 45 111. 119 ; 2 Cent. L. J. 
 407. If it should appear therefrom that any 
 act did not receive the requisite vote, or that 
 the act was not constitutionally adopted, the 
 courts may adjudge the act void ; Cooley, Const. 
 Lim. 164. But every reasonable presumption is 
 made in favor of the action of a legislative body ; 
 it will not be presumed from the mere silence of 
 the journals that either house disregarded a 
 constitutional requirement in the passage of an 
 act, unless in cases where the constitution has 
 required the journals to show the action that 
 has been taken ; 25 111. 181 ; 11 Ind. 434. 
 
 JOURNEYS ACCOUNT. In EngUsh 
 Practice. A new writ which the plaintiiF 
 was permitted to sue out within a reasonable 
 time after the abateihent, without his fault, of 
 the first writ. This time was computed with 
 reference to the number of days which the 
 plaintiff must spend in journeying to reach 
 the court: hence the name of journeys ac- 
 count, that is, journeys accomptes or counted. 
 This writ was quasi a continuance of the 
 first writ, and so related back to it as to oust 
 the defendant or tenant of his voucher, plea 
 of non-tenure, joint tenancy fully adminis- 
 tered, or any other plea arising upon matter 
 happening after date of the first writ. Co. 
 Litt. fol. 9 b. 
 
 This mode of proceeding has fallen into 
 disuse, the practice now being to permit that 
 writ to be quashed, and to sue out another. 
 See Termes de la Ley ; Bacon, Abr. Abate- 
 ment (Q) ; ] 4 Viner, Abr. 558 ; 4 Comyn, 
 Dig. 714 ; 7 M. & G. 762 ; 8 Cra. 84. 
 
 JUBILACION. In Spanish Law. The 
 right of a public officer to retire from office, 
 retaining his title and his salary, either in 
 whole or in part, after he has attained the 
 age of fifty years and been in public service 
 at least twenty years, whenever his infirmi- 
 ties prevent him from discharging the duties 
 of his office. 
 
 JUDAISMUS (Lat.). The religion and 
 rites of the Jews. DuCange. A quarter 
 set apart for residence of Jews. Du Cange. 
 A usurious rate of interest. 1 Mon. Angl. 
 839 ; 2 id. 10, 665. Sex marcus sterling- 
 orum ad aequietandam terram prcedictum de 
 Judaismo, inquo fuit impignorata. Du Cange. 
 An income anciently accruing to the king 
 from the J^s. Blount. 
 
 JUDEX (Lat.), In Roman Law. One 
 who, either in his own right or by appoint- 
 
 ment of the magistrate for the special case, 
 judged causes. 
 
 Thus, the prcetor was formerly called judex. 
 But, generally, praetors and magistrates who 
 judge of their own right are distinguished from 
 judices, who are private persons, appointed by 
 the praetor, on application of the plaintiff, to try 
 the cause, as soon as issue is joined, and fur- 
 nished by him with instructions as to the legal 
 principles involved. They were variously called 
 judices delegati, or pedanei, or speciales. They 
 resemble in many respects jurors : thus, both 
 are private persons, brought in at a certain 
 stage of the proceedings, viz., issue joined, to 
 try the cause, under instructions from the judge 
 as to the law of the case. But civilians are not 
 clear whether the judices had to decide the fact 
 alone, or the law and fact. The judex resembles 
 in many respects the arbitrator, or arbiter, the 
 chief differences being, first, that the latter is 
 appointed in cases of trust and confidence, the 
 former in cases where the relations of the par- 
 ties are governed by strict law {in pactionibus 
 etrictis) ; second, the latter has the whole con- 
 trol of case, and decides according to equity and 
 good conscience, the former by strict formulae ; 
 third, that the latter may be a magistrate, the 
 former must be a private person ; fourth, that the 
 award of the arbiter derives its force from the 
 agreement of submission, while the decree of 
 the judex has its sanction in the command of the 
 praetor to try the cause ; Calvinus, Lex. ; 1 
 Spence, Eq. Jur. 210, note; Mackeldey, Civ. 
 Law, Kanfmann ed. § 193, note. 
 
 There was generally one judex, sometimes 
 three, — in which case the decision of two, in 
 the absence of the third, had no effect. Cal- 
 vinus, Lex. Down to the time of handing 
 over the cause to the judex, that is, till issue 
 joined, the proceedings were before the prae- 
 tor, and were said to be in jure ; after that, 
 before the judex, and were said to be injudi- 
 cio. In all this we see the germ of the An- 
 glo-Saxon system of judicature. 1 Spence, 
 Eq. Jur. 67. . 
 
 In Civil Law. A judge who conducts the 
 trial from beginning to end ; magistratus. 
 The practice of calling in judices was disused 
 before Justinian's time : therefore, in the 
 Code, Institutes, and Novels, judex means 
 judge in its modern sense. Heineccius, Elem. 
 Jur. Civ. § 1327. 
 
 In Old English Law. A juror. Spel- 
 man. Gloss. A judge, in modem sense, espe- 
 cially — as opposed to justiciarius, i. e.a, com- 
 mon-law judge — to denote an ecclesiastical 
 judge. Bracton, fol. 401, 402. 
 
 JUDEX ORDINARIUS (Lat.). In 
 Civil Law. A judge who had jurisdiction 
 by his own right, not by another's appoint- 
 ment. Calvinus, Lex. ; Vicat, Voc. Jur. 
 Blackstone says that judices ordinarii de- 
 cided only questions of fact, while questions 
 of law were referred to the centumviri; 
 but this would seem to be rather the definition 
 of judices selecti ; and not all questions of 
 law were referred to the centumviri, but par- 
 ticular actions : e. g. querela inofficiosi testa- 
 menti. See 2 Bla. Com. 315 ; Vicat, Voc. 
 Jur. Vtr.Centumviri. 
 
 JUDGE. A public officer lawfully ap- 
 
JUDGE 
 
 JUDGE ADVOCATE 
 
 pointed to decide litigated questions accord- 
 ing to law. 
 
 An officer so named in his commission, who 
 presides in some court. 
 
 In its most extensive sense the term includes 
 all officers appointed to decide litigated ques- 
 tions while acting in that capacity, including 
 justices of the peace, and even jurors, it is said, 
 who are judges of the facts ; 4 Dall. 329 ; 3 
 Teates, 300. In ordinary legal use, however, the 
 term is limited to the sense of the second of the 
 definitions here given ; 15 111. 388 ; unless it may 
 he that the case of a justice or commissioner act- 
 ing judicially is to be considered an extension of 
 this meaning. See 3 Cush. 584. 
 
 Judges are appointed or elected in a vari- 
 ety of ways in the United States. For the 
 federal courts they are appointed by the 
 president, by and with the consent of the 
 senate; in some of the states they are ap- 
 pointed by the governor, the governor and 
 senate, or by the legislature. See 11 Ind. 
 357 ; 29 Penn. 129 ; 2 Greene, Iowa, 458 ; 
 6 Ired. 5. The judges of the federal courts, 
 and of the courts of some of the states, hold 
 their offices during good behavior; see 3 Cush. 
 584 ; of others, as in New York, during good 
 behavior, or until they shall attain a certain 
 age ; and of others, for a limited term of years. 
 See 30 Miss. 206. 
 
 Impartiality is the first duty of a judge : 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; 6 Pick. 109; 21 trf. 101; 14 S. 
 & R. 157 ; 4 Ohio St. 675 ; 17 Ga. 253 ; 17 
 Barb. 414; 22 N. H. 473; 19 Conn. 585. 
 It is said to be discretionary with him whether 
 he will sit in a cause in which he has been 
 of counsel; 2 A. K. Marsh. 517 ; Coxe, N. J. 
 164. See 2 Binn. 454; 5 Ind. 230. But 
 the practice is to refuse to sit in such case. 
 And in 5 Coldw. 217, it was held that where 
 the judge who rendered the judgment in the 
 case had been counsel in it, the judgment was 
 a nullity. A magistrate authorized to sign 
 writs cannot sign them in his own case; 47 
 Conn. 316. 
 
 When the lord chancellor, who was a 
 shareholder in a company in whose favor the 
 vice chancellor had made a decree, affirmed 
 this decree, .the house of lords reversed this 
 decree on that ground ; 3 H. L. C. 759 ; 
 where there is no other tribunal that can act, 
 the judge may hear the case ; 5 H. L. C. 88 ; 
 1 9 Johns. 501 ; contra, Hopk. Ch. 2 ; 105 
 Mass. 221. See Cooley, Const. Lim. 515 ; 
 25 Mich. 83. 
 
 It has been held that where the interest of 
 the judge is merely that of a corporator in a 
 municipal corporation, the legislature may 
 provide that this shall constitute no disquali- 
 fication when the corporation is a party — ap- 
 parently on the ground that the interest is 
 insignificant; 1 Gray, 475. But it is doubt- 
 ful whether even the legislature can go beyond 
 this class of cases and abolish the maxim; 
 Cooley, Const. Lim. 516. 
 
 If one of the judges is disqualified on this 
 ground, a judgment rendered will be void. 
 
 even though the proper number may have 
 concurred in the result, which includes the 
 interested judge; 6 Q. B. 753. The objec- 
 tion may be raised for the first time in the 
 appellate court; 6 Cush. 332; 3 H. L. C. 387. 
 
 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 capa- 
 ble of impartially deciding on the admissi- 
 bility of his own testimony, or of weighing it 
 against that of another ; 2 Mart. La. n. s. 3 1 2 ; 
 2 Cal. 358! See Comyn, Dig. Courts (B 4), 
 (C 2), (E 1), (P 16), Justices (I 1, 2, 3) ; 
 Bacon, Abr. Courts (B) ; 1 Kent, 291; 
 Charge. 
 
 While acting within the bounds of his juris- 
 diction, the judge is not responsible for any 
 error of judgment or mistake he may commit 
 as judge; 12 Co. 23; 2 Dall. 160; 2 N. & 
 M'C. 168; 1 Day, Conn. 315 ; 5 Johns. 282; 
 9 id. 395 ; 3 A. K. Marsh. 76 ; 1 South. 74 ; 
 1 N. H. 374. It has been said that a judge 
 of a court of superior jurisdiction is not liable 
 for acts done in excess of his jurisdiction ; 2 
 Bla. Rep. 1141 (dictum) ; 13 Wall. 335. Field, 
 J., in 7 Wall. 523, said, obiter, that a judge of 
 a court of superior jurisdiction is not liable 
 when he acts in excess of his jurisdiction, 
 except for malice. In 73 N. Y. 12, this 
 point was so decided, but the court drew a 
 distinction between the case where the judge 
 had acquired no jurisdiction at all, and the 
 case where the act was merely in excess of 
 jurisdiction after jurisdiction had been ac- 
 quired. There the judge of the circuit court 
 had imposed a resentence upon a prisoner, 
 and he was accordingly imprisoned; the su- 
 preme court held the second sentence illegal, 
 and discharged the prisoner. These cases 
 have been doubted in an article in 1 5 Am. L. 
 Rev. 442. There is no distinction between a 
 judge acting in court and acting judicially out 
 of court, that is, in chambers ; 3 Moore, P. C. 
 52; Wilm. 208. 
 
 "A judge of a court not of record is not 
 liable for any injury' sustained which is the 
 result of an honest error of judgment in a 
 matter wherein the court has jurisdiction, and 
 when the act done is not of a purely minis- 
 terial nature." The rule is thus stated in 
 15 Am. L. Rev. 444. See further an article 
 in Ir. L. T. and Sol. J., Nov. 13, 1880; 6 Am. 
 Dec. 303 ; 29 Am. Rep. 80 n. ; 23 Am. 
 Rep. 690. 
 
 A judge who acts corruptly may be im- 
 peached ; 6 Johns. 282 ; 8 Cow. 1 78 ; 4 
 Dall. 225. 
 
 JUDGE ADVOCATE. An officer of a 
 court-martial who is to discharge certain duties 
 at the trial of ofienders. 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 ques- 
 tions 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 
 
JUDGE'S CERTIFICATE 
 
 13 
 
 JUDGMENT 
 
 of War, art. 69 j 2 Story, U. S. Laws, 1001 ; 
 Holt, Dig. passim. 
 
 JUDGE'S CERTIFICATE. InEngUsh 
 Practice. The written statement of the 
 judge who tried the cause that one of the par- 
 ties is entitled to costs in the action. It is 
 very important in some cases that these certi- 
 ficates should be obtained at the trial. See 
 Tidd, Pr. 879 ; 3 Chitty, Pr. 458, 486 ; 3 
 Campb. 316 ; 5 B. & Aid. 796. A state- 
 ment of the opinion of the court, signed by 
 the judges, upon a question of law submitted 
 to them by the chancellor for their decision. 
 See 3 Bla. Com. 453 ; Case Stated. 
 
 JUDGE-MADE LAW. A phrase used 
 to indicate judicial decisions which construe 
 away {he meaning of statute, or find mean- 
 ings in them the legislature never intended. 
 It is sometimes used as meaning, simply, the 
 law established by judicial precedent. Cooley, 
 Const. Lim. 70, n. See Austin, Prov. of 
 Jur. 
 
 JUDGE'S NOTES. Short statements, 
 noted 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 oifers of evidence 
 and whether it has been received or rejected, 
 and the like matters. 
 
 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 sug- 
 gested that some of the witnesses in the for- 
 mer 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. 
 §166. 
 
 JUDGMENT. In Practice. The con- 
 clusion of law upon facts found, or admitted 
 by the parties, or upon their default in the 
 course of the suit. Tidd, Pr. 930 ; 32 Md. 
 147. 
 
 The decision on sentence of the law, given 
 by a court of justice or other competent tri- 
 bunal, as the result of proceedings instituted 
 therein for the redress of an injury. 3 Bla. 
 Com. 395; 12 Minn. 437. It is said to be 
 the end of the law ; 51 Penn. 373. 
 
 Judgment of cassetur breve or billa (that 
 the writ or bill be quashed) is a judgment 
 rendered in favor of a party pleading in 
 abatement to a writ or action. Steph. PI. 
 130, 131. 
 
 Judgment hy confession is a judgment en- 
 tered for the plaintifi in case the defendant, 
 instead of entering a plea, confesses the ac- 
 tion, or at any time before trial confesses the 
 action and withdraws his plea and other alle- 
 gations. 
 
 Contradictory judgment is a judgment 
 
 which has been given after the parties have 
 been heard either in support of their claims 
 or in their defence. 11 La. 366. It is used 
 in Louisiana to distinguish such judgments 
 from those rendered by default. 
 
 Judgment hy default is a judgment ren- 
 dered in consequence of the non-appearance 
 of the defendant. 
 
 Judgment in error is a judgment rendered 
 by a court of error on a record sent up from 
 an inferior court. 
 
 Final judgrfient is one which puts an end to 
 a suit. 
 
 Interlocutory judgment is one given in the 
 progress of a cause upon some plea, proceed- 
 ing, or default which is only intermediate and 
 does not finally determine or complete the 
 suit. 3 Bla. Com. 396. 
 
 Judgment of nil capiat per breve or per bil- 
 lam is a judgment in favor of the defendant 
 upon an issue raised upon a declaration or 
 peremptory plea. 
 
 Judgment by nil dicit is one rendered 
 against a defendant for want of a plea. 
 
 Judgment of nolle prosequi is a judgment 
 entered against the plaintiff where after ap- 
 pearance and before judgment he says " he 
 will not further prosecute his suit." Steph. 
 PI. 130. 
 
 Judgment ofnon obstante veredicto is a judg- 
 ment rendered in favor of one party with- 
 out regard to the verdict obtained by the 
 other party. 
 
 Judgment of non pros, (non prosequitur) is 
 one given against the plaintiff for a neglect 
 to take any of those steps which it is incum- 
 bent on him to take in due time. 
 
 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. PI. 130. 
 
 Judgment of non suit, a judgment rendered 
 against the plaintiff when he, on trial by jury, 
 on being called or demanded, at the instance 
 of the defendant, to be present while the jury 
 give their verdict, fails to make an appear- 
 ance. 
 
 Judgment pro retorno habendo is a judgment 
 that the party have a return of the goods. 
 
 Judgment quod computet is a judgment in 
 an action of account-render that the defend- 
 ant do account. 
 
 Judgment quod partitio fat is the interlo- 
 cutory judgment in a writ of partition that 
 partition be made. 
 
 Judgment quod partes replacitent is a judg- 
 ment for repleader. See Repleader. 
 
 Judgment quod recuperet is a judgment in 
 favor of the plaintiff (that he do recover) ren- 
 dered when he has prevailed upon an issue 
 in fact or an issue in law other than one aris- 
 ing on a dilatory plea. Steph. PI. 126. 
 
 Judgment of respondeat ouster is a judg- 
 ment given against the defendant after he 
 has failed to establish a dilatory plea upon 
 which an issue jn law has been raised. 
 
 Judgment of retraxit is one given against 
 
JUDGMENT 
 
 14 
 
 JUDGMENT 
 
 the plaintiff where, after appearance and 
 before judgment, the plaintiff enters upon 
 the record that he "withdraws his suit." 
 
 Judgments upon facts found are the follow- 
 ing. Judgment of nul tiel record occurs when 
 some pleading denies the existence of a record, 
 and Issue is joined thereon ; the record being 
 produced Is compared by the court with the 
 statement in the pleading which alleges it ; and 
 if they correspond, the party asserting its exist- 
 ence obtains judgment; if they do not corre- 
 spond, the other party obtains judgment of nul 
 tiel record. Judgment upon verdict is the most 
 usual of the judgments upon facts found, and is 
 for the party obtaining the verdict. Judgment 
 non obstante veredicto is a judgment rendered in 
 favor of the plaintiff notwithstanding the verdict 
 for the defendant : this judgment is given upon 
 motion (which can only be made by the plain- 
 tiff ) when, upon an examination of the whole 
 proceedings, it appears to the court that the de- 
 fendant has shown himself to be in the wrong, 
 and that the issue, though decided in his favor 
 by the jury, is on a point which does not at all 
 better his case ; Smith, Actions, 161. This is 
 called a judgment upon confession, because it 
 occurs after a pleading by defendant in con- 
 fession and avoidance and issue joined thereon, 
 and verdict found for defendant, and then it ap- 
 pears that the pleading was bad in law and 
 might have been demurred to on that ground. 
 The plea being substantially bad in law, of 
 course the verdict 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 declara- 
 tion, and shows that he was entitled to maintain 
 his action. Sometimes it may be expedient for 
 the plaintiff to move for judgment non obstante 
 veredicto even though the verdict be in his favor ; 
 for, in a case like that described above, if 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 EoUe, Abr. 99 ; 1 
 Bingh. N. o. 767. See, also, Cro. Eliz. 214 ; 6 
 Mod. 10 ; Str. 394 ; 1 Ld. Raym. 641 ; 8 Taunt. 
 413 ; Eastell, Ent. 628 ; 1 Wend. 307 ; 5 id. 513 ; 
 6 Cow. 225. A judgment of repleader iB given 
 when issue is joined on an immaterial point, or 
 one on which the court cannot give a judgment 
 which will determine the right. On the award 
 of a repleader, the parties must recommence 
 their pleadings at the point where the immaterial 
 issue originated. See Repleader. This judg- 
 ment is interlocutory, quod partes replacitent. 
 See Bacon, Abr. Heas, 4 (M) ; 3 Hayw. 159. 
 
 Judgments upon facts admitted by the parties 
 are as follows. Judgment upon a demurrer 
 against the party demurring concludes him, 
 because by demurring a party admits the facts 
 alleged in the pleadings of his adversary, and 
 relies on their insufficiency in law. It sometimes 
 happens that though the adverse parties are 
 agreed as to the facts, and only differ as to the 
 law arising out of them, still these facts do not so 
 clearly appear on the pleadings as to enable 
 them to obtain the opinion of the court by way 
 of demurrer ; for on demurrer the court can 
 look at nothing whatever except the pleadings. 
 In such circumstances the statute 3 & 4 Will . IV. 
 c. 42, § 25, which has been Imitated in most of 
 the states, allows them after issue joined, and on 
 obtaining the consent of a single judge, to state 
 the facts in a special case for the opinion of the 
 court, and agree that a judgment shall be en- 
 tered for the plaintiff or defendant by confession 
 
 or nolle prosequi immediately after the decision 
 of the case ; and judgment is entered accordingly. 
 Sometimes at the trial the parties find that they 
 agree on the facts, and the only question is one 
 of law. In such case a verdict pro forma is 
 taken, which is a species of admission by the 
 parties, and is general, where the jury find for the 
 plaintiff generally but subject to the opinion of 
 the court on a special case, or special, where they 
 state the facts as they find them, concluding 
 that the opinion of the court shall decide in 
 whose favor the verdict shall be, and that they 
 assess the damages accordingly. The judg- 
 ments in these cases are called, respectively, 
 judgment on a case stated, judgment onageneral 
 verdict subject to a special case, and judgment on a 
 special verdict. 
 
 Besides these, a judgment may be based upon 
 the admissions or confessions of one only of the 
 parties. Such judgments when for defendant 
 upon the admissions of the plaintiff are : Judg- 
 ment of nolle prosequi, where, after appearance 
 and before judgment, the plaintiff says he " will 
 not further prosecute his suit." Judgment of 
 retraxit is one where, after appearance and be- 
 fore judgment, the plaintiff enters upon the 
 record that he " withdraws his suit," where- 
 upon judgment is rendered against him. The 
 difference between these is that a retraxit is a 
 bar to any future action for the same cause; 
 while a nolle prosequi is not, unless made after 
 judgment ; 7 Bingh. 716 ; 1 Wms. Saund. 207, 
 n. A plaintiff sometimes, when he finds he has 
 misconceived his action, obtains leave from the 
 court to discontinue, on which there is a judg- 
 ment against him and he has to pay costs ; but 
 he may commence a new action for the same 
 cause. A stet processus is entered where it is 
 agreed by leave of the court that all further pro- 
 ceedings shall be stayed : though in form a 
 judgment for the defendant, it is generally, 
 like discontinuance, in point of fact for the bene- 
 fit of the plaintiff, and entered on his applica- 
 tion, as, for instance, when the defendant has 
 become insolvent, it does not carry costs ; Smith, 
 Actions, 162, 163. 
 
 Judgments for the plaintiff upon facts admitted 
 by the defendant are judgment by cognovit ac- 
 tionem, cognovit or confession, where, instead of 
 entering a plea, the defendant chooses to ac- 
 knowledge the rightfulness of the plaintld's 
 action ; or by confession relicta veiijlcatione, 
 where, after pleading and before trial, he both 
 confesses the plaintiff's cause of action to be 
 just and true and withdraws, or abandons, his 
 plea or other allegations. Upon this, judgment 
 is entered against him without proceeding to 
 trial. 
 
 Analogous to this is the judgment confessed 
 by warrant of attorney : this is an authority 
 given by the debtor to an attorney named by the 
 creditor, empowering him to confess judgment 
 either by cognovit actionem, nil dicit, or non gum. 
 informatus. This differs from a cognovit in that 
 an action must be commenced before a cognovit 
 can be given ; 3 Dowl. 278, per Parke, B. ; but 
 not before the execution of a warrant of attorney. 
 Judgments by nil didt and non sum informatus, 
 though they are in fact founded upon a tacit 
 acknowledgment on the part of the defendant 
 that he has no defence to the plaintiff's action, 
 yet as they are commonly reckoned among the 
 judgments by default, they will be explained 
 under that head. 
 
 A judgment is rendered on the default of a 
 party, on two grounds : it is considered that the 
 failure of the party to proceed is an admission 
 that he, if plaintiff, has ho just cause of action, 
 or, if defendant, has no good defence ; and it is 
 
JUDGMENT 
 
 15 
 
 JUDGMENT 
 
 intended as a penalty for his neglect ; for which 
 reason, when such judgment is set aside or 
 opened at the instance of the defaulting party, 
 the court generally require him to pay costs. 
 Judgment by default is against the defendant 
 when he has failed to appear after being served 
 with the writ ; to plead, after being ruled so to 
 do, x)r, in Pennsylvania and some other states, 
 to file an affidavit of defence within the pre- 
 scribed time ; or, generally, to take any step in 
 the cause ineambeut on him. Judgment by non 
 mm informatus is a species of judgment by 
 default, where, instead of entering a plea, the 
 defendant's attorney says he is " not informed" 
 of any answer to be given to the action. Judg- 
 ment by nil dicit is rendered against the de- 
 fendant where, after being ruled to plead, he 
 neglects to do so within the time specified. 
 
 Judgment of non pros, (from non prosequitur') 
 is one given against the plaintiff for a neglect to 
 take any of those steps which it is incumbent oh 
 him to take in due time. Judgment of non suit, 
 (from non sequitur, or ne suit pas) is where the 
 plaintifiF, after giving in his evidence, finds that 
 it will not sustain his case, and therefore volun- 
 tarily makes default by absenting himself when 
 he is called on to hear the verdict. The court 
 gives judgment against him for this default ; but 
 the proceeding is really for his benefit, because 
 after a nonsuit he can institute another action 
 for the same cause, which is not the case — except 
 in ejectment, in some states — after a verdict 
 and judgment against him. It follows that at 
 common law the plaintiif cannot be nonsuited 
 against his will ; for a party cannot be compelled 
 to make default. But in Pennsylvania, by 
 statute, the plaintiff may be nonsuited compul- 
 sorUy. This may be done in two cases : 1, under 
 the act of March 11, 1836, when the defendant 
 has offered no evidence, and the plaintiff's evi- 
 dence is not sufficient in law to maintain his 
 action ; 2, under the act of April 14, 1846, con- 
 fined to Philadelphia, when the cause is reached 
 and the plaintiff or his counsel does not appear, 
 or, if he appears, does not proceed to trial, and 
 does not assign and prove a sufficient legal cause 
 for continuance. 
 
 The formality of calling the plaintiff when he 
 is to suffer a nonsuit is obsolete in most of the 
 states. 
 
 In England, when the plaintiff neglects to carry 
 down the record to the assizes for trial, the de- 
 fendant is empowered by stat. Geo. II. c. 17, to 
 move for judgment as in case of nonsuit, which 
 the court may either grant, or may, upon just 
 and reasonable terms, allow the plaintiff further 
 time to try the issue. 
 
 Interlocutory judgments are such as are given 
 In the middle of a cause upon some plea, pro- 
 ceeding, or default which is only intermediate, 
 and does not finally determine or complete the 
 suit. Any judgment leaving something to be 
 done by the court, before the rights of the parties 
 are determined, and not putting an end to the 
 action in which it is entered, is interlocutory 
 I"reem. Judg. § 13 ; 3 Bla. Com. 396. Such is a 
 judgment for the plaintiff upon a plea in abate- 
 ment, which merely decides that the cause must 
 proceed and the defendant put in a better plea. 
 But, in the ordinary sense, interlocutory judg- 
 ments are those incomplete judgments whereby 
 the right of the plaintiff is indeed established, 
 but the quantum of damages sustained by him is 
 not ascertained. This can only be the case where 
 the plaintiff recovers ; for judgment for the de- 
 fendant is always complete as well as final. The 
 interlocutory judgments of most common occur- 
 rence are where a demurrer has been determined 
 for the plaintiff, or the defendant has made de- 
 
 fault, or has by cognovit actionem acknowledged 
 the plaintiff's demand to be just. After inter- 
 locutory judgment in such case, the plaintiff 
 must ordinarily take out a writ of inquiry, which 
 is addressed to the sheriff, commanding him to 
 summon a jury and assess the damages, and upon 
 the return of the writ of inquiry final judgment 
 may be entered for the amount ascertained by 
 the jury. It is not always necessary to have a 
 writ of inquiry upon interlocutory judgment ; 
 for it is said that " this is a mere inquest of office 
 to inform the conscience of the court, who, if 
 they please, may themselves assess the damages." 
 3 Wils. 63, per Wilmot, C. J.; and accordingly, 
 If the damages are matter of mere computation, 
 as, for instance, interest upon a bill of exchange 
 or promissory note, it Is usual . for the court to 
 refer it to the master or prothonotary, to ascer- 
 tain what is due for principal. Interest, and costs, 
 whose report supersedes the necessity of a writ 
 of inquiry; 4 Term, 375 ; 1 H. Blackst. 541 ; 4 
 Price, 134. But in actions where a specific thing 
 is sued for, as in actions of debt for a sum certain, 
 the judgment upon demurrer, default, or confes- 
 sion is not interlocutory, but Is absolutely com- 
 plete and final in the first instance. 
 
 Final judgments are such as at once put an 
 end to the action by determining the right and 
 fixing the amount In dispute. Such are a judg- 
 ment for defendant at any stage of the suit, a 
 judgment for plaintiff after verdict, a judgment 
 for a specific amount confessed upon warrant of 
 attorney, and a judgment signed upon the return 
 of a writ of Inquiry, or upon the assessment of 
 damages by the master or prothonotary. Judg- 
 ment for plaintiff Is final also in an action brought 
 for a specific sum, as debt for a sum certain, 
 although entered upon a demurrer or default, 
 because here, the amount being ascertained at 
 the outset, the only question at Issue is that re- 
 specting the right, and when that is determined 
 nothing remains to be done. 
 
 When an issue in fact, or an Issue in law arising 
 on a peremptory plea, is determined for the plain- 
 tiff, the judgment Is " that the plaintiff do re- 
 cover, etc., which is called a judgment quod 
 recuperet; Steph. PI. 126; Comyn, Dig. Abate- 
 ment (I 14, 1 15) ; 3 Archb. Pr. 3. When the 
 Issue in law arises on a dilatory plea, and is de- 
 termined for the plaintiff, the judgment is only 
 that the defendant "do answer over," called a 
 judgment of respondeat ouster. In an action of 
 account, judgment for the plaintiff is that the 
 defendant "do account," quod computet. Of 
 these, the last two, quod computet and quod re- 
 spondeat ouster, are Interlocutory only ; the first, 
 quod recuperet, is either final or interlocutory 
 according as the qtiantum of damages Is or is not 
 ascertained at the rendition of the judgment. 
 
 Judgment In error is either In affirmance of 
 the former judgment ; in recall of it for en-or in 
 fact ; in reversal of it for error in law ; that the 
 plaintiff be barred of his writ of error, where a 
 plea of release of errors or of the statute of limi- 
 tations is found for the defendant ; or that there 
 be a venire facias de novo, which is an award of a 
 new trial ; Smith, Actions, 196. A venire facias 
 de novo will always be awarded when the plain- 
 tiff's declaration contains a good cause of action, 
 and judgment in his favor is reversed by the 
 court of error ; 34 Penn. 470. In general, how- 
 ever, when judgment Is reversed, the court of 
 error not merely overturns the decision of the 
 court below, but will give such a judgment as 
 the court below ought to have given ; Smith, 
 Actions, 196. & . i 
 
 Eequisites op. To be valid, a judicial 
 judgment must be given by a competent judge 
 
JUDGMENT 
 
 16 
 
 JUDGMENT 
 
 or coart, at a time and place appointed by 
 law, and in the form it requires. A judg- 
 ment would be null if the judge had not juris- 
 diction of the matter, or, having such jurisdic- 
 tion, he exercised it when there was no court 
 held, or out of his district, or if he rendered 
 a judgment before the cause was prepared for 
 a hearing. 
 
 The judgtnent must confine itself to the 
 question raised before the court, and cannot 
 extend beyond it. For example, where the 
 plaintiff sues for an injury committed on his 
 lands by animals owned and kept carelessly 
 by defendant, the judgment may be for dam- 
 ages, but it cannot command the defendant 
 for the future to keep his cattle out of the 
 plaintifiT's land. That would be to usurp the 
 power of the legislature. A judgment de- 
 clares the rights which belong to the citizen, 
 the law alone rules future actions. The law 
 commands all men, it is the same for all, be- 
 cause it is general ; judgments are particular 
 decisions, which apply only to particular per- 
 sons, and bind no others ; they vary like the 
 circumstances on which they are founded. 
 
 Effect of. Final judgments are com- 
 monly said to conclude the parties ; and this 
 is true in general, but does not apply to judg- 
 ments for defendant on non suit, as in case of 
 non suit by nolle prosequi, and the like, 
 which are final judgments in one sense, be- 
 cause they put an end to all proceedings in 
 the suit, but which nevertheless do not debar 
 the plaintiff from instituting another suit for 
 the same cause. With this qualification, the 
 rule as to the effect of a judgment is as fol- 
 lows. The judgment of a court of concurrent 
 jurisdiction directly upon the point is, as a 
 plea, a bar, or, as evidence, conclusive, be- 
 tween the same parties upon the same matter 
 directly in question in another court. The 
 judgment of a court of exclusive jurisdiction 
 directly upon the point is in like manner con- 
 clusive upon the same matter, between the 
 same parties, coming incidentally in question 
 in another court for a different purpose. But 
 neither the judgment of a concurrent nor ex- 
 clusive jurisdiction is evidence of any matter 
 which came collaterally in question, though 
 within their jurisdiction, nor of any matter 
 incidentally cognizable, nor of any matter to 
 be inferred by argument from the judgment. 
 Duchess of Kingston's case, 20 Howell, St. 
 Tr. 538 ; 2 Smith, Lead. Cas. 424 ; and see 
 the authorities there cited. See, also, 2 Gall. 
 229 ; 4 Watts, IS.t. The rule above given 
 relates to the effect of a judgment upon pro- 
 ceedings in another court ; if the court is the 
 same, of course the rule holds a fortiori. 
 Moreover, all persons who are represented 
 by the parties, and claim under them or in 
 privity with them, are equally concluded by 
 the proceedings. All privies whatever in 
 estate, in blood, or in law, are, therefore, 
 estopped from litigating that which is conclu- 
 sive upon him with whom they are in privity ; 
 1 Greenl. Ev. §S 523, 536. 
 
 A further rule as to the conclusiveness of 
 
 judgments is sometimes stated thus: '| a judg- 
 ment of a court of competent jurisdiction 
 cannot be impeached or set aside in any col- 
 lateral proceeding except on the ground of 
 fraud." See, generalljr, 1 Greenl. Ev. pt. 
 3, ch. 5, and the authorities there cited. 
 
 This does not prevent a judgment from' be- 
 ing attached directly by writ of error or other 
 proceeding in the nature of an appeal ; and 
 its validity may be impeached in other direct 
 proceedings, as by motion to open or set it 
 aside, and in contests between creditors in 
 regard to the validity of their respective 
 judgments ; in this latter class of cases the 
 court will sometimes award a feigned issue to 
 try questions of fact affecting the validity of 
 the judgment. 
 
 If the record of a judgment show that it 
 was rendered without service of process or 
 appearance of the defendant, or if that fact 
 can be shown without contradicting the re- 
 citals of the record, it will be treated as void 
 in any other state; 97 Mass. 538 ; 46 N. Y. 
 30 ; 8. c. 7 Am. Kep. 299 ; 48 Ga. 60 ; 8. c. 
 15 Am. Bep. 660. But this fact cannot be 
 shown in contradiction of the recitals of the 
 record; 17 Vt. 302; 2 McLean, 511; 65 
 Penn. 105; contra, 46 N. Y. 30; 24 Tex. 
 551; 18 Wall. 467. See Cooley, Const. 
 Lim. 22. 
 
 Matters of defence arising since the judg- 
 ment may be taken advantage of by a wnt 
 of audita querela, or, which is more usual, 
 the court may afford summary relief on mo- 
 tion. 
 
 All the judgments, decrees, or other orders 
 of courts, however conclusive in their char- 
 acter, are under the control of the court 
 which pronounced them during the term at 
 which they are rendered or entered of record, 
 and may then be set aside, vacated, or modi- 
 fied by the court, but after the term has 
 ended, unless proceedings to correct the er- 
 ross alleged have been taken before its close, 
 they can only be corrected by writ of error 
 or appeal, as maybe allowed in a court which 
 by law can reverse the decision ; 14 Cent. L. 
 J. 250; citing 102 U. S. 107; 9 Wall. 103. 
 To this rule there is an exception founded on 
 the common law writ of coram nobis, which 
 brought before the court where the error was 
 committed certain mistakes of fact not put 
 in issue or passed upon by the court, such as 
 the death of one of the parties when the judg- 
 ment was rendered, coverture if a female party, 
 infancy and failure to appoint a guardian, 
 error in the process, or mistake of the clerk. 
 But if the error was in the judgment itself, 
 the writ did not lie. What was formerly 
 done by this writ in now attained by motion 
 and affidavits when necessary ; 14 Cent. L. 
 J. 253 ; 7 Pet. 147. 
 
 As TO Form. The form of the judgment 
 varies according to the nature of the action 
 and the circumstances, such as default, ver- 
 dict, etc., under which it is obtained. An- 
 ciently great particularity was required in the 
 entries made upon the judgment roll; but 
 
JUDGMENT 
 
 17 
 
 JUDGMENT 
 
 now, even in the English practice, the draw- 
 ing up the judgment roll is generally neg- 
 lected, except in cases where it is absolutely 
 necessary, as where it is desirable to give the 
 proceedings in evidence on some future occa^ 
 sion ; Smith, Actions, 169. In this country 
 the roll is rarely if ever drawn up, the simple 
 entry on the trial list and docket, "judgment 
 for plaintiif, " or "judgment for defendant," 
 being all that is generally considered neces- 
 sary ; and though the formal entries are in 
 theory still required to constitute a complete 
 record, yet if such record should subsequently 
 be needed for any purpose, it may be made 
 up after any length of time from the skeleton 
 entries upon the docket and trial list. See 
 11 Penn. 399. When the record is thus 
 drawn up in full, the ancient formalities must 
 be observed, at least in a measure. 
 
 Judgments on Verdict. * 
 
 In account, judgment for the plaintiif is 
 interlocutory in the first instance, that the de- 
 fendant do account, quod computet ; 4 Wash. 
 C. C. 84; 2 Watts, 95; 1 Penn. 138. 
 
 In assumpsit, judgment for the plaintiff is 
 that he recover the damages assessed by the 
 jury, and full costs of suit ; 1 Chitty, PL 100. 
 Judgment for the defendant is that he recover 
 his costs. For the form, see Tidd, Pr. 
 Forms, 165. 
 
 In case, trover, and trespass, the judgment 
 is the same in substance, and differs but 
 slightly in form from that of assumpsit ; 1 
 Chitty, PI. 100, 147. 
 
 A judgment in trover passes title to the 
 goods in question ; 4 Cent. Cas. 88 ; but 
 only where the value of the thing converted 
 is included in the judgment ; 5 H. & N. 288 ; 
 contra, that an unsatisfied judgment does not 
 pass the property ; L. K. 6 C. P. 584; 3 Wall. 
 1, 16 ; but see 1 Eawle, 121. 
 
 In covenant, judgment for the plaintiff is 
 that he recover the amount of his damages as 
 found which he has sustained by reason of 
 the breach or breaches of the defendant's 
 covenant, together with costs of suit; 1 Chitty, 
 PI. 116, 117. Judgment for defendant is for 
 costs. 
 
 In debt, judgment for the plaintiff is that 
 he recover his debt, and, in general, nominal 
 damages for the detention thereof; and in 
 cases under the 8th & 9th Will. III. c. 11, 
 for successive breaches of a bond conditioned 
 for the performance of a covenant, it is also 
 awarded that he have execution for such 
 damages, and likewise full costs of suit ; 1 
 Chitty, PI. 108, 109. But in some penal 
 and other actions the plaintiff does not always 
 recover costs; Esp. Pen. Act. 154; Hull 
 Costs, 200; Bull. N. P. 333; 5 Johns. 25l'. 
 Judgment for defendant is generally for costs : 
 but in certain penal actions neither party caii 
 recover costs ; 5 Johns. 251. See the form, 
 Tidd, Pr. Forms, 176. 
 
 In detinue, judgment for the plaintiff is 
 in the alternative that he recover the goods 
 or the value thereof if he cannot have the 
 Vol. II.— 2 
 
 goods themselves, with damages for the de- 
 tention, and costs ; 1 Chitty, PI. 121, 122 ; 1 
 Dall. 458. See the form, Tidd, Pr. Forms, 
 187. 
 
 Executor. If judgment in any of the above 
 personal actions is against the defendant in 
 the character of executor, it confines the lia- 
 bility of the defendant for the debt or dam- 
 ages to the amount of assets of the testator 
 in his hands, but leaves him personally liable 
 for costs. See the form, Tidd, Pr. Forms, 
 168. If the executor defendant has pleaded 
 plene administravit, judgment against him 
 confines his liability to such amount of the 
 assets as shall hereafter come to his hands. 
 See the form, Tidd, Pr. Forms; 174. A 
 general judgment for costs against an ad- 
 ministrator plaintiff is against the estate only. 
 
 In dower, judgment for demandant is in- 
 terlocutory in the first instance with the award 
 of a writ of habere facias seisinam, and 
 inquiry of damages, on the return of which 
 final judgment is rendered for the value of 
 the land detained, as ascertained by the jury, 
 from the death of the husband to the suing 
 out of the inquisition, and costs of suit. See 
 the form, 3 Chitty, PI. 583-585. 
 
 In ejectment, judgment for plaintiff is final 
 in the first instance, that he recover the term, 
 together with the damages assessed by the 
 jury, and the costs of suit, with^ward of the 
 writ of habere facias possessionem, directing 
 the sheriff to put him in possession. See the 
 form, 3 Bla. Com. App. xii. ; Tidd, Pr. 
 Forms, 188. 
 
 In partition, judgment for plaintiff is also 
 interlocutory in the first instance ; quod par- 
 titio fiat, with award of the writ de partitione 
 facienda, on the return of which final judg- 
 ment is rendered, — "therefore it is con- 
 sidered that the partition aforesaid be held 
 firm and effectual forever," quod partitio 
 facta firrrta et stabilis in perpetuam teneatur ; 
 Co. Litt. 169. See the form, 2 Sell. Pr. 
 319, 2d ed. 222. 
 
 In replevin. If the replevin is in the 
 detinuit, i. e. where the plaintiff declares that 
 the chattels " were detained until replevied 
 by the sheriff," judgment for plaintiff is that 
 he recover the damages assessed by the jury 
 for the taking and unjust detention, or for the 
 detention only where the taking was justifi- 
 able, and also his costs ; 5 S. & R. 133 ; 
 Hamm. N. P. 488. If the replevin is in the 
 detinet, i. e./where the plaintiff declares that 
 the chattels taken are "yet detained," the 
 jury in giving a verdict for plaintiff find, in 
 addition to the above, the value of the chat- 
 tels each separately ; for the defendant will 
 perhaps restore some, in which case the plain- 
 tiff is to recover the value of the remainder ; 
 Hamm. N. P. 489 ; Pitzh. N. B. 159 b ; 
 5 S. & R. 130. 
 
 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. 
 
 If the plaintiff is nonsuited, the judgment 
 
JUDGMENT 
 
 18 
 
 JUDGMENT 
 
 for defendant, at common law, is that the 
 chattels be restored to him, and that without 
 his first assigning the object of the taking, 
 because by abandoning his suit the plaintiil 
 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," proretorno habendo, without adding 
 the words " to hold irreplevisable." Hamm. 
 N. P. 490. For the form of judgments of 
 nonsuit under the statutes 21 Hen. VIII. c. 
 19, and 17 Car. II. c. 7, see Hamm. N. P. 
 490, 491 ; 2 Chitty, PI. 161 ; 8 Wentw. PI. 
 116; 5 S. & R. 132; 1 Saund. 195, n. 3 ; 
 2 id. 286, n. 5. In these cases the defendant 
 has the option of taking his judgment pro 
 retorno habendo at common law ; 5 S. & K. 
 132 ; 1 Lev. 255 ; 3 Term, 349. 
 
 When the avowant succeeds upon the 
 mei-its, the common-law judgment is that he 
 "have return irreplevisable;" for it is ap- 
 parent that he is by law entitled to keep pos- 
 session of the goods ; 5 S. & R. 145 ; Hamm. 
 N. P. 493 ; 1 Chitty, PI. 162. For the form 
 of judgment in such case under the statutes 
 last mentioned, see Hamm. N. P. 494. 
 
 After verdict, the general form of judg- 
 ment for plaintiff in actions on contracts 
 sounding in damages, and in actions founded 
 on torts unaccompanied with violence, is this. 
 " Therefore,it is considered that the said A 
 B do recover against the said C D his dam- 
 ages aforesaid, and also for his said costs 
 
 and charges, by the court now here adjudged 
 of increase to the said A B, with his assent ; 
 which said damages, costs, and charges in the 
 
 whole amount to . And the said C D 
 
 in mercy, etc." In debt for a sum certain, 
 
 the general form is ' ' that the said A B do 
 
 recover against the said C D his said debt, 
 
 and also for his damages which he has 
 
 sustained, as well on occasion of detaining 
 the said debt as for his costs and charges by 
 him about his suit in this behalf expended, by 
 the court now here adjudged to the said A B, 
 and with his assent. And the said C D in 
 mercy, etc." In actions founded on torts 
 accompanied with violence, the form of judg- 
 ments for plaintiff is, " that the said A 
 
 B do recover against the said C D his dam- 
 ages aforesaid, and also for his said costs 
 
 and charges by the court now here ad^dged 
 of increase to the said A B, and with his 
 consent ; which said damages, costs, and 
 
 charges in the whole amount to . And 
 
 let the said C D be taken, etc." 
 
 Final judgment for the defendant is in these 
 words : " Therefore it is considered that the 
 said A B take nothing by his writ, but that 
 he be in mercy, etc. (or that he and his 
 pledges to prosecute be in mercy, etc.), and 
 that the said C D do go thereof without day, 
 
 etc. And it is further considered ." 
 
 Then follows the award of costs and of exe- 
 cution therefor. See Tidd, Pr. Forms, 189. 
 
 This is the general form of judgment for 
 defendant, whether it arise upon interlocutory 
 proceediiigsior upon verdict, and whatever be 
 
 the form of action. This is sometimes called 
 judgment of nil capiat per breve or per bil- 
 lam; Steph. PI. 128. 
 
 The words " and the said in mercy, 
 
 etc.," or, as expressed in Latin, quod sit in 
 misericordia pro falso clamore sua, were for- 
 merly an operative part of the judgment, it 
 being an invariable rule of the common law 
 that the party who lost his cause was pun- 
 ished by amercement for having unjustly as- 
 serted or resisted the claim. And on this 
 account pledges of prosecution were required 
 of the plaintiff before the return of the origi- 
 nal, who were real and responsible persons 
 and liable for these amercements. But after- 
 wards the amercements ceased to be exacted, 
 — perhaps because the payment of costs took 
 their place, — and, this portion of the judg- 
 ment becoming mere matter of form, the 
 pledg^ returned were the fictitious names 
 John Doe and Richard Roe. Bacon, Abr. 
 Fines, etc. (C 1) ; 1 Ld. Baym. 273, 274. 
 
 The words "and let the said be 
 
 taken," in Latin, capiatur pro fine, which 
 occur above in the form of judgment in ac- 
 tions founded on torts accompanied with vio- 
 lence, were operative at common law, be- 
 cause formerly a defendant adjudged to have 
 committed a civil injury with actual violence 
 was obliged to pay a fine to the king for the 
 breach of the peace implied in the act, and 
 was liable to be arrested and imprisoned till 
 the fine was paid. This was abolished by 
 Stat. 5 W. & M. c. 12; but the form was still 
 retained in entering judgment against defend- 
 ant in such actions. See Gould, PL §§ 88, 
 82; Bacon, Abr. Fines, etc. (C 1) ; 1 Ld. 
 Baym. 273, 274 ; Style, 346. 
 
 These are called, respectively, judgments 
 of misericordia and of capiatur. 
 
 Judgments in other cases. On a plea in 
 abatement, either party may demur to the 
 pleading of his adversary or they may join 
 issue. On demurrer, judgment for the plain- 
 tiff is that the defendant have another day to 
 plead in chief, or, as it is commonly expressed, 
 that he answer over: quod respondeat ouster; 
 and judgfnent for defendant is that the writ 
 be quashed: quod cassetur hilla or breve. 
 But if issue be joined, judgment for plaintiff" 
 is quod recuperet, that he recover his debt or 
 damages, and not quod respondeat; judg- 
 ment for defendant is the same as in the case 
 of demurrer, that the writ be quashed. But 
 the plaintiff' may admit the validity of the 
 plea in abatement, and may himself pray that 
 his bill or writ may be quashed, quod cassetur 
 hilla or breve, in order that he may after- 
 wards sue or exhibit a better one ; Steph. PI 
 128, ISO, 131; Lawes, Civ. PI. See the 
 form, Tidd, Pr. Forms, 195. 
 
 Judgment on demurrer in other cases 
 when for the plaintiff' is interlocutory in as- 
 sumpsit and actions sounding in damages and 
 recites that the pleading to which exception 
 was taken by defendant appears sufKcient in 
 law, and that the plaintifl' ought therefore to 
 recover ; but the amount of damages being 
 
JUDGMENT 
 
 JUDICATURE 
 
 unknown, a court of inquiry is awarded to 
 ascertain them. See the form, Tidd, Pr. 
 ForTM, 181. In debt it is final in the first 
 instance. See the form, id. pp. 181, 182. 
 Judgment on demurrer when for the defendant 
 is always final in the first instance, and is for 
 costs only. See the form, id. 195, 196. 
 
 Judgment by default, whether by nil dicit 
 or non sum in/ormatus, is in these words, in 
 assumpsit or other actions for damages, after 
 stating the default: "wherefore the said A 
 B ought to recover against the said C D his 
 damages on occasion of the premises ; but 
 because it is unknown to the court, etc., now 
 here what damages the said A B hath sus- 
 tained by means of the premises, the sheriff 
 is commanded, etc." Then follows the award 
 of the writ of inquiry, on the return of which 
 final judgment is signed. See the forms, 
 Tidd. Pr. Forms, 165-169. In debt for a 
 sum certain, as on a bond for the payment of 
 a sum of money, the judgment on default is 
 final in the first instance, no writ of inquiry 
 being necessary. See the form, id. 169, 170. 
 
 Judgment by cognovit actionem is for the 
 amount admitted to be due, with costs, as on 
 a verdict. See the form, id. 176. 
 
 Judgment of non pros, or non suit is final, 
 and is for defendant's costs only, which is 
 also the case with judgment on a discontinu- 
 ance or nolle prosequi. See id. 189-195. 
 
 Or Mattkes op Practice. 0/ docket- 
 ing the judgment. By the stat. 4 & 5 W. & 
 M. c. 20, all final judgments are required to 
 be regularly docketed : that is, an abstract of 
 the judgment is to be entered in a book called 
 the judgment-docket ; 3 Bla. Com. 398. And 
 in these states the same regulation prevails. 
 Besides this, an index is required to be kept 
 in England of judgments confessed upon war- 
 rant of attorney, and of certain other sorts of 
 judgments ; 3 Sharsw. Bla. Com. 396, n. 
 In most of the states this index is required to 
 include all judgments. The effect of docket- 
 ing the judgment is to notify all interested 
 persons, including purchasers or incumbrancers 
 of land upon which the judgment is a lien, 
 and subsequent judgment creditors, of the ex- 
 istence and amount of the judgment. In 
 Pennsylvania, the judgment index is for this 
 purpose conclusive evidence of the amount of 
 a judgment in favor of a purchaser of the 
 land bound thereby, but not against him : if 
 the amount indexed is less than the actual 
 amount, the purchaser is not bound tO/go be- 
 yond the index ;\ but if the amount indexed 
 is too large, he may resort to the judgment- 
 docket to correct the mistake ; 1 Penn. 408. 
 
 Now, in England, judgments, in order to 
 affect purchasers, mortgagees, and creditors, 
 must be registered in the common pleas, and 
 renewed every five years. See 2 & 3 Vict. c. 
 11, s. 5. 
 
 Of the time of entering the judgment. After 
 verdict a brief interval is allowed to elapse 
 before signing judgment, in order to give the 
 defeated party an opportunity to apply for a 
 new trial, or to move in arrest of judgment. 
 
 if he is so disposed. This interval, in Eng- 
 land, is four days ; Smith, Actions, 150. In 
 this country it is generally short ; but, being 
 regulated either by statute or by rules of court, 
 it of course may vary in the different states, 
 and even in different courts of the same state. 
 
 See Arrest op Judgment ; Assumpsit ; 
 Attachment ; Conflict of Lavts ; Cove- 
 nant; Debt; Detinue; Ejectment; 
 Foreign Judgment ; Lien ; Replevin ; 
 Trespass ; Trover. See Freeman, Judg- 
 ments. 
 
 JUDGMENT NISI. A judgment en- 
 tered on the return of the nisi prius record 
 with the postea indorsed, which will become 
 absolute according to the terms of the " pos- 
 tea" unless the court out of which the nisi 
 prius record proceeded shall, within the first 
 four days of the following term, otherwise 
 order. 
 
 Under the compulsory arbitration law of 
 Pennsylvania, on filing the award of the 
 arbitrators, judgment nisi is to be entered, 
 which judgment is tp be valid as if it had 
 been rendered on a verdict of a jury, unless 
 an appeal is entered within the time required 
 by law. 
 
 JTJDG-MBNT NOTE. A promissory 
 note given in the usual form, and containing, 
 in addition, a power of attorney to appear 
 and confess judgment for the sum therein 
 named. On this account it is not negotiable ; 
 77 Penn. 131 ; but see 19 Ohio, 130. 
 
 It usually contains a great number of stipu- 
 lations as to the time of confessing the judg- 
 ment ; 11 111. 623 ; against appeal and other 
 remedies for setting the judgment aside^ see 
 9 Johns. 80; 20 id. 296; 2 Cow. 465; 
 2 Penn. 501; 15 111. 356; and other condi- 
 tions. 
 
 JUDGMENT PAPER. In English 
 Practice. An incipitur of the pleadings, 
 written on plain paper, upon which the mas- 
 ter will sign judgment. 1 Archb. Pr. 229, 
 306, 343. 
 
 JUDGMENT RECORD. In English 
 Practice. A parchment roll, on which are 
 transcribed the whole proceedings in the 
 cause, deposited and filed of record in the 
 treasury of the court, after signing of judg- 
 ment? 3 Steph. Com. 632. See Judgment 
 R01.L. In American practice, the record is 
 signed, filed, and docketed by the clerk, all of 
 which is necessary to suing out execution; 
 Graham, Pr. 341. ' 
 
 JUDGMENT ROLL. In English Law. 
 A record made of the issue roll (which see), 
 which, after final judgment has been given in 
 the cause, assumes this name. Steph. PL 
 133; 3 Chitty, Stat. 514; Freem. Judg. 
 § 75. The Judicature Act of 1875 requires 
 every judgment to be entered in a book by 
 the proper 'officer. 
 
 JUDICATURE. The state of those em- 
 ployed in the administration of justice ; and 
 in this . sense it is nearly synonymous with 
 
JUDICATURE ACTS 
 
 20 
 
 JUDICATURE ACTS 
 
 judiciary. This term is also used to signify 
 a tribunal ; and sometimes it is employed to 
 show the extent of jurisdiction : as, the judi- 
 cature is upon writs of error, etc. Comyn, 
 Dig. Parliament (L 1). And see Comyn, 
 Dig. Courts (A). 
 
 JUDICATURE ACTS. 
 
 The statutes of 36 & 37 Vict. c. 66, and 38 & 
 39 Vict. c. 77, which went into force Nov. 1, 
 1875, with amendments in 1877, c. 9, 1879, c. 78, 
 and 1881, c. 68, made most important changes in 
 the organization of, and methods of procedure 
 in, the superior courts of England, consolidating 
 them together so as to constitute one Supreme 
 Court or Judicature, consisting of two divisions : 
 Her Majesty's High Court of Justice, having 
 chiefly original jurisdiction, and Her Majesty's 
 Court of Appeals, whose jurisdiction is. chiefly 
 appellate. To the former is transferred the 
 jurisdiction of the courts of chancery, queen's 
 bench, common pleas, exchequer, admiralty, 
 probate, divorce, and tbe assize court, with 
 certain exceptions, of which the most important 
 is the appellate jurisdiction of the court of ap- 
 peal in chancery. The London court of bank- 
 ruptcy was included in this list by the act of 
 1873, but excluded by that of 1875. To Her 
 Majesty's Court of Appeal is transferred the 
 jurisdiction exercised by the lord chancellor and 
 lords justices of the court of appeal in chancery, 
 the court of exchequer chamber, the judicial 
 committee of the privy council on appeal from 
 the high court of admiralty, or from any order 
 in lunacy made by the lord chancellor, or any 
 other person having jurisdiction in lunacy. By 
 the act of 1873, no appeals were to be brought 
 from the High Court or Court of Appeal to the 
 house of lords or the privy council, but by the 
 Appellate Jurisdiction Act of 39 & 40 Vict. c. 
 59, the house of lords retains for all practical 
 purposes here, its powers and functions to hear 
 appeals from Her Majesty's Court of Appeal in 
 England, and from the courts of Scotland and 
 Ireland. Her Majesty's Court of Appeal practi- 
 cally takes the place of the exchequer chamber 
 in appeals in common law actions, and also 
 hears appeals in chancery, previously heard by 
 the chancellor or by the court of appeal in chan- 
 cery, in the exercise of its appellate jurisdiction, 
 and of the same court as a court of appeal in 
 bankruptcy. It consists of five ex-offlcio judges, 
 viz., the lord chancellor as president, the lord 
 chief justice of England, the master of the rolls, 
 the lord chief justice of the common pleas, and 
 the lord chief baron of the exchequer, and six 
 ordinary judges of the court of appeal, to be 
 styled, by the act of 40 & 41 Vict. c. 9, lords 
 justices of appeal, the first three of whom^re to 
 be made by the transfer of three judges frmn the 
 High Court of Justice. 
 
 The High Court of Justice consists of five divi- 
 sions as follows : 1. The chancery division, con- 
 sisting of the lord chancellor, the master of the 
 rolls (but by the act of 44 & 45 Vict. c. 68, the 
 master of the rolls ceases to belong to the high 
 court, and provision is made for a judge in his 
 place, who shall be in the same position as a 
 puisne judge under the acts of 1873 and 1875) 
 and such of the vice chancellors of the court of 
 chancery as shall not be appointed ordinary 
 judges of the court of appeal. The Judicature 
 Act of 1877, 40 & 41 Vict. c. 9, provides for 
 the appointment of a new judge, to be attached 
 to the chancery division, and entitles the puisne 
 judges, justices of the high court. The lord 
 chancellor is not to be deemed a permanent 
 judge of the High Court of Justice. 
 
 2. The queen's bench division, consisting of 
 the lord chief justice of England, and such 
 other of the judges of the court of queen's bench 
 as shall not be appointed ordinary judges of the 
 Court of Appeal. 
 
 3. The common pleas division, consisting of 
 the lord chief justice of the common pleas, and 
 such other judges of the court of common pleas 
 as shall not be appointed ordinary judges of the 
 Court of Appeal. 
 
 4. The exchequer division, consisting of the 
 lord chief baron of the exchequer, and certain 
 other barons of the court of exchequer. 
 
 5. The probate, divorce, and admiralty division, 
 consisting of two judges, one of whom shall be 
 the judge of the court of probate and of the 
 court for divorce and matrimonial causes, and 
 the judge of the high court of admiralty. 
 
 Any judge of any of the above divisions may 
 be transferred by her majesty from one to an- 
 other of the said divisions. Divisional courts of 
 the high courts of justice may be held for the 
 transaction of special business, consisting usually 
 of two judges. 
 
 Crown cases reserved are to be heard by the 
 judges of the High Court of Justice, or at least 
 five of them, of whom the lord chief justice of 
 England, the lord chief justice of the common 
 pleas, and the lord chief baron of the exchequer, 
 or one of them, shall be part. Their determina- 
 tion is final, save for some error of law upon the 
 record, as to which no question shall have been 
 reserved for their decision, under 11 & 13 Vict, 
 c. 78. 
 
 The reports of adjudicated cases are now ar- 
 ranged thus (see Repokts) : — 
 
 Appeal cases. Cases decided by the house of 
 lords and privy council, cited as App. Cas. They 
 are reported with the cases of the division from 
 which the appeal was taken, and are indicated 
 as, "In the court of appeal," or " C. A.;" 
 chancery division, cited as Ch. Div. ; common 
 pleas division, cited as C. P. Div. ; exchequer 
 division, cited as Ex. Div. 
 
 Probate division. Cases decided by the pro- 
 bate, divorce, and admiralty divisions, cited as 
 P. Div. 
 
 Queen's bench division, cited as Q. B. Div. 
 
 These acts provide for a concurrent adminis- 
 tration of legal and equitable remedies, accord- 
 ing to seven rules, which substantially provide 
 that any one of the courts, included in the acts, 
 shall give the same equitable relief to any plain- 
 tiff or defendant claiming it as would formerly 
 have been granted by chancery ; equitable relief 
 will be granted against third persons, not parties, 
 who shall be brought in by notice ; all equitable 
 estates, titles, rights, duties, and liabilities, will 
 be taken notice of as in chancery ; no proceed- 
 ing shall be restrained by injunction, but every 
 matter of equity on which an injunction might 
 formerly have been obtained, may be relied on 
 by way of defence, and the courts may in any 
 cause direct a stay of proceedings. Subject to 
 these and certain other provisions . of the act, 
 effect shall be given to all legal claims and de- 
 mands, and all estates, titles, rights, duties, obli- 
 gations, and liabilities, existing by the common 
 law, custom, or statute, as before the acts ; the 
 new courts shall grant, either absolutely or on 
 terms, all such legal or equitable remedies as the 
 parties may appear entitled to ; so that all mat- 
 ters may be completely and finally determined 
 and multiplicity of legal proceedings avoided ' 
 
 Eleven new rules of law are established, which 
 will be found in the act of 1873, c. 66, § 35, of the 
 following nature : 1. In the administration of in- 
 solvent estates, the same rules shall prevail as 
 may be in force under the law of bankruptcy • 
 
JUDICATURE ACTS 
 
 21 
 
 JUDICIAL MORTGAGE 
 
 2. No claim of a cestui que trust against his trus- 
 tee, lor property held on an express trust, shall 
 be barred by any statute of limitations ; 3, A 
 tenant for life shall have no right to commit 
 equitable waste, unless such right is expressly 
 conferred by the instrument creating the estate ; 
 4. There shall be no merger by operation of law 
 only, of any estate, the beneficial interest in which 
 would not be deemed merged in equity ; 5. A 
 mortgagor entitled for the time being to the pos- 
 session of the profits of land, as to which the 
 mortgagee shall have given no notice of his in- 
 tention to take possession, may sue for such pos- 
 session, or for the recovery of such profits, or to 
 prevent or recover damages in respect of any 
 trespass, or other wrong relative thereto, in his 
 own name only, unless the cause of action arises 
 upon a lease or other contract made jointly with 
 any other person ; 6. Any absolute assignment of 
 a chose in action, of which express notice in 
 writing shall have been given to the debtor, shall 
 pass the legal right thereto from the date of no- 
 tice, and all remedies for the same, and the 
 power to give a good discharge : provided, that 
 if the debtor, etc., shall have had notice of any 
 conflicting claims to such debt, he shall be enti- 
 tled to call upon such claimants to interplead ; 
 7. Stipulations as to time or othei-wise, which 
 would not have been deemed of the essence of 
 the contract in equity, shall receive the same 
 construction as formerly in equity ; 8.- A manda^ 
 mus or an injunction may be granted, or a re- 
 ceiver appointed by an interlocutory order, which 
 may he made either unconditionally or on terms ; 
 and an injunction may be granted to prevent 
 threatened waste or trespass, whether the estates 
 be legal or equitable, or whether the person 
 against whom the injunction is sought is or is 
 not in possession under any claim of title, or 
 does or does not claim a right to do the act 
 sought to be restrained under color of title ; 9. 
 In proceedings arising from collisions at sea, 
 where both ships are in fault, the rules hitherto 
 in force in the court of admiralty shall prevail ; 
 10. In questions relating to the custody of in- 
 fants, the rules of equity shall prevail ; 11. Gen- 
 erally, in all matters in which there is any con- 
 flict between the rules of common law and the 
 rules of equity, the latter shall prevail. 
 
 The division of the legal year into terms is 
 abolished, so far as relates to the administration 
 of justice, but where they are used' as a measure 
 for determining the time at or within which any 
 act is required to be done, they may continue to 
 be referred to. Numerous other regulations are 
 established for the arrangement of business, and 
 course of procedure under the new system, for 
 which reference must be had to the acts. We 
 will merely note that nothing is to affect the law 
 relating to jury trials, and the existing forms of 
 procedure are to be used as far as consistent with 
 these acts. Nothing shall afiect the practice or 
 procedure in — 1. Criminal proceedings ; 2. Pro- 
 ceedings on the crown side of the queen's bench 
 division ; 3. Proceedings on the revenue side of 
 the exchequer division ; 4. Proceedings for di- 
 vorce and matrimonial causes. The Chancery 
 Procedure Acts and the Common Law Procedure 
 Acts remam in full force, except so far as im- 
 pliedly or expressly repealed by the Judicature 
 Acts. Many sectionsof the C. L. P. Acts are re- 
 pealed by the act of 1879, c. 78, and by the Civil 
 Procedure Acts Repeal Act of 1879, c. 59. See 
 Moz. & W. ; preface to 15 Eug. Kep. by N. C. 
 Moak, and the several articles on the Courts of 
 England. 
 
 JUDICATURE ACTS (IRELAND). 
 
 The act of 40 & 41 Vict. c. 57, which went into 
 operation Jan. 1, 1878, established a supreme 
 court of judicature in Ireland, essentially similar 
 
 in its constitution to that in England. Amended 
 by 41 & 42 Vict. c. 27. 
 
 JUDICES FEDANEOS (Lat.). In 
 Roman Lavr. Judges chosen by the parties. 
 
 Among the Bomans, 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 judiees 
 pedaneos. In choosing them, the plaintiff had 
 the rigjit to nominate, and the defendant to 
 accept or reject those nominated. Heineccius, 
 Antiq. lib. 4, tit. b. n. 40 ; 7 Toullier, n. 353. 
 
 JUDICIAL ADMISSIONS. Admis- 
 sions of the party which appear of record in 
 the proceedings of the court. 
 
 JUDICIAL COMMITTEE OP THE 
 PRIVY COUNCIL. In English Law. 
 
 A tribunal, composed of members of the 
 privy council, which exercised the entire 
 appellate jurisdiction of the queen in council, 
 and also advised her majesty upon any mat- 
 ters which she might refer to it. 
 
 Its jurisdiction extended to cases in civil, 
 ecclesiastical, and maritime law, in equity, 
 and to many of the colonial cases, including 
 cases arising under the Hindu and Moham- 
 medan law. It consisted of eminent lawyers 
 chiefly of judicial station. When questions 
 arose which belonged to any peculiar jurisdic- 
 tion, as the ecclesiastical or civil, the attend- 
 ance and aid of judges in that branch were 
 required ; and in case of questions under the 
 Hindu or other peculiar systems of law, 
 assistance was, in like manner, derived from 
 those skilled in such proceedings. 
 
 Under the provisions of the Judicature Acts, 
 the appellate jurisdiction of this committee 
 was transferred to the Supreme Court of 
 Judicature ; Mozl. & W. 
 
 JUDICIAL CONPESSIONS. In 
 Criminal Lavr. 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 magis- 
 trate 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. 
 
 JXroiCIAL CONVENTIONS. Agree- 
 ments entered into in consequence of an 
 order of court; as, for example, entering 
 into a bond on taking out a writ of sequestra- 
 tion. 6 Mart. La. n. s. 494. 
 
 JUDICIAL DECISIONS. The opin- 
 ions or determinations of the judges in causes 
 before them. Hale, Hist. Cr. Law, 68- 
 WiUes, 666; 3 B. & Aid. 122; I H. 
 Blackst. 63 ; 5 Maule & S. 185. See Dictum. 
 
 JUDICIAL LIABILITY. See Judge; 
 6 Am. Dec. 333. 
 
 JUDICIAL MORTGAG-E. In Loui- 
 siana. The lien resulting from judgments, 
 whether these be rendered on contested cases, 
 or by default, whether they be final or pro- 
 visional, in favor of the person obtaining 
 them. La. Civ. Code, art. 3289. 
 
JUDICIAL NOTICE 
 
 22 
 
 JUDICIAL NOTICE 
 
 JUDICIAL NOTICE. Courts of justice 
 take judicial notice of certain facts, and no 
 evidence of any fact of which the court will 
 take such notice need be given by the party 
 alleging its existence. The judge, if a case 
 arise, may, if unacquainted with such fact, 
 refer to any person, or any document, or book 
 of reference for his satisfaction in relation 
 thereto ; or may refuse to take judicial notice 
 thereof unless and until the party calling upon 
 him to take such notice, produces any such 
 document or book of reference. Steph. Ev., 
 art. 59. The following classification of the 
 subject has been made by Mr. May in his 
 edition of Stephen's Evidence. 
 
 Courts will take judicial notice of: — 
 The existence and titles of all the sovereign 
 powers in the civilized world which are recog- 
 nized by the government of the United States, 
 their respective flags and seals of state ; 7 
 Wheat. 610, 634; id. 273, 335; L. R. 2 
 Ch. App. 585. The law of nations; 14 
 Wall. 170, 188; the general usages and cus- 
 toms of merchants ; 91 U. S. 37 ; treaties 
 made by the United States with foreign gov- 
 ernments, and the public acts and proclama- 
 tions of those governments and their public 
 authorized agents in carrying such treaties 
 into effect; 9 How. 127, 147. 
 
 Foreign admiralty and maritime courts ; 4 
 Cra. 434, 299 ; and their notaries public; 8 
 Wheat. 326, 333 ; and their respective seals. 
 The constitution, public statutes, and gene- 
 ral laws and customs of the Union, and also 
 of their own particular state or territory ; 1 1 
 How. 663 ; and the courts of the United 
 States take judicial notice of the laws of the 
 several states applicable to causes depending 
 before them; 12 Wall. 226. 
 
 The accession of the chief executive of the 
 nation, and of their own state or terri- 
 tory ; his powers and privileges ; 33 Miss. 
 508 ; 5 Wise. 308 ; and the genuineness of 
 his signature ; 4 Mart. La. 635 ; the heads of 
 departments, and principal ofiicers of state ; 
 91 U. S. 37 ; and the public seals; 2 Halst. 
 653 ; 3 Johns. 310 ; the election or resigna- 
 tion of a senator of the United States ; the 
 appointment of a cabinet or foreign minister ; 
 91 U. S. 37 ; 2 Rob, La. 466 ; marshals and 
 sheriffs ; 27 Ala. 17 ; and the genuineness of 
 their signatures; 10 Mart. La. 196; but not 
 their deputies ; 10 Ark. 142; courts of gene- 
 ral jurisdiction, their judges ; 2 Ohio St. 223 ; 
 their seals, regular terms, rules, and maxims 
 in the administration of justice and course of 
 proceeding; 10 Pick. 470; 17 Ala. 229. 
 
 Public proclamations of war and peace, and 
 of the days of special fast and thanksgiving ; 
 stated days of general political elections, the 
 sittings of congress, and also of their own 
 state or territorial legislatures, and their es- 
 tablished and usual course of proceeding, the 
 privileges of the members, but not the trans- 
 actions on the journals; 13 Wall. 154; 6 
 id. 4; contra (as to journals], 48 Ala. 115; 
 13 Mich. 481. 
 The territorial extent of the jurisdiction 
 
 and sovereignty exercised de facto by their 
 own government; 19 Iowa, 319; and the 
 local political divisions of their own state into 
 counties, cities, townships, and the like ; 40 
 N. H. 420; 22 Me. 453; and their relative 
 positions, but not their boundaries further 
 than described in public statutes ; 89 Me. 
 263, 291 ; 28 Ind. 429. 
 
 The general geographical features of their 
 own country, state, and judicial district, as to 
 the existence and location of its principal 
 mountains, rivers, and cities ; 27 Ind. 233 ; 
 40 N. H. 420 ; and also the geographical po- 
 sition and distances of foreign countries and 
 cities in so far as the same may be fairly 
 presumed to be within the knowledge of 
 most persons of ordinarj- intelligence and edu- 
 cation within the state or district where the 
 court is held; 91 U. S. 37; and the courts 
 of the United States especially take judicial 
 notice of the ports and waters of the United 
 States, in which the tide ebbs and flows, and 
 of the boundaries of the several states and 
 judicial districts; 91 U. S. 37. 
 
 All things which must have happened ac- 
 cording to the ordinary course of nature ; as 
 the ordinary limitation of human life as to age, 
 the course of time and of the heavenly bodies, 
 the mutations of the seasons and their general 
 relations to the maturity of the crops; 91 
 U. S. 37. 
 
 The ordinary public fasts and festivals ; 4 
 Md. 409; the coincidence of days of the 
 week with days of the month ; 31 Ala. 167. 
 The meaning of words in the vernacular lan- 
 guage : but not of catch words, technical, 
 locd, or slang expressions ; 20 Pick. 206 ; 15 
 Md. 276, 484. 
 
 Such ordinary abbreviations as by common 
 use may be regarded as universally under- 
 stood, as abbreviations of Christian names, 
 and the like ; 91 U. S. 37 ; 37 Ala. 216 ; 13 
 Mo. 89 ; but not those which are in any de- 
 gree doubtful or difiicult of interpretation ; 8 
 Texas, 205. 
 
 The legal weights, measures ; 4 Tenn. 314 ; 
 and coins ; 5 M'Lean, 23 ; 10 Ind. 536 ; the 
 character of the general circulating medium, 
 and the public language in reference to it ; 3 
 Monr. 149 ; but not the current value of the 
 notes of a bank at any particular time ; 40 
 Ala. 391. Any matters of public history 
 affecting the whole people, and also public 
 matters afi'ectiiig the government of the na- 
 tion, or of their own particular state or dis- 
 trict ; 16 How. 416 ; 91 U. S. 37 ; 37 Conn. 
 597. 
 
 _ And finally all matters which may be con- 
 sidered as within the common experience or 
 knowledge of all men ; 28 Ala. 83 ; or which 
 they are directed by any statute to notice. 
 
 Judicial notice will also be taken of the 
 period of gestation; 2 East, 202; of the 
 variation of the magnetic needle ; 6 Litt. 
 Ky. 91 ; (but not, it has been held, of the 
 fact that the concentric layers of the trunk 
 of a tree mark its age ; 8 Bland, 69 ;) of 
 general and notorious customs of merchants ■ 
 
JUDICIAL. POWER 
 
 23 
 
 / 
 JUDICIAL RECORDS 
 
 1 Whart. Ev. § 331 ; if they have been 
 sanctioned by the courts ; ibid. ; and are in- 
 telligible without extrinsic proof; 23 Beav. 
 370 ; of the custom of the road, as to passing 
 to the right or left; 8 C. & P. 104 ; and of 
 the customs of the sea, if general and noto- 
 rious ; L. R. 3 P. C. 44. 
 
 It has been said that the courts should ex- 
 ercise this power with caution. Care must 
 be taken that the requisite notoriety exists. 
 Every reasonable doubt upon the subject 
 should be solved promptly in the negative. 
 Per Swayne, J., in 91 U. S. 43. In that 
 case the court took judicial notice, in a patent 
 case, of the principle of operation of an ice- 
 cream freezer ; and the subject of judicial 
 notice was there fully discussed. 
 
 See, generally, 2 Cent. L. J. 393, 409 ; 14 
 id. 114, 125; 5 So. L. Rev. N. 8. 214. 
 
 JUDICIAL POWER. The authority 
 vested in the judges. 
 
 The constitution of the United States de- 
 clares 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. 
 
 By the constitutions of the several states, 
 the judicial power is vested in such courts as 
 are enumerated in each respectively. See the 
 articles on the several states. There is nothing 
 in the constitution of the United States to for- 
 bid or prevent the legislature of a state from 
 exercising judicial functions; 2 Pet. 413; 
 but even in the absence of special limitations 
 in the state constitutions, legislatures cannot 
 exercise powers in their nature essentially 
 judicial; 13 N. Y. 391. The different 
 classes of power have been apportioned to 
 different departments, and as all derive their 
 authority from the same instrument, there is 
 an implied exclusion of each department from 
 exercising the functions conferred upon the 
 others ; Cooley, Const. Lim. 106. The legis- 
 lative power cannot from its nature be assimir 
 lated to the judicial ; the law is made by the 
 one, and applied by the other ; 1 N. H. 204 ; 
 10 Wheat. 46; 11 Penn. 494; 19 111. 282; 
 
 1 Ohio St. 81 ; 13 N. Y. 391. 
 
 A state legislature cannot annul the judg- 
 ments nor determine the jurisdiction of the 
 courts of the United States; 5 Cra. 115; 2 
 Dall. 410 ; nor authoritatively declare what 
 the law is or has been, but what it shall be ; 
 
 2 Cra. 272 ; 4 Pick. 23 ; 3 Mart. La. 248 ; 
 10 id. 1 ; 3 Mart. La. N. s. 551 ; 5 id. 
 519. 
 
 JUDICIAL PROCEEDINGS. Proceed- 
 ings relating to, practised in, or proceeding 
 from, a court of justice. 
 
 Conclusive presumptions are made in faror 
 of judicial proceedings. Thus, it is an un- 
 doubted rule of pleading that nothing shall 
 be intended to be out of the jurisdiction of 
 a superior court but that which is so ex- 
 pressly alleged; 1 Saund. 74; 10 Q. B. 411, 
 455-459. So, also, it is presumed, with re- 
 
 spect to such writs as are actually issued by 
 the superior courts at Westminster, that they 
 are duly issued, and in a case in which the 
 courts have jurisdiction, unless the contrary 
 appears on the face of them; and all such 
 writs will of themselves, and without any 
 further allegation, protect all officers and 
 others in their aid acting under them; and 
 this, too, although they are on the face of 
 them irregular, or even void in form ; 6 Co. 
 54 a; 10 Q. B. 411, 455-459. 
 
 The rule is well settled by the authorities, 
 that words spoken in the course of judicial 
 proceedings, though they are such as impute 
 crime to another, and therefore if spoken 
 elsewhere would import malice and be action- 
 able in themselves, are not actionable if they 
 are applicable and pertinent to the subject of 
 inquiry. And this extends not merely to 
 regular courts of justice, but to all inquiries 
 before magistrates, referees, municipal, mili- 
 tary, and ecclesiastical bodies ; and they are 
 only restrained by this rule, viz., that they 
 shall be made in good faith to courts or tfi- 
 bunals having jurisdiction of the subject, and 
 power to hear and decide the matter of com- 
 plaint or accusation, and that they are not 
 resorted to as a cloak for private malice. 
 The question, therefore, in such cases is, not 
 whether the words spoken are true, not 
 whether they are actionable in themselves, 
 but whether they were spoken in the course 
 of judicial proceedings, and whether they 
 were relevant and pertinent to the cause or 
 subject of inquiry ; Heard, Lib. & S. §§ 101, 
 102. The rule that no action will lie for 
 words spoken or written in the course of any 
 judicial proceeding, has been acted upon from 
 the earliest times. In 4 Co. 14 ft, it was 
 adjudged that if one exhibits articles to jus- 
 tices of the peace, "in this case the parties 
 shall not have, for any matter contained in 
 such articles, any action upon the case, for 
 they have pursued the ordinary course of 
 justice in such cases ; and if actions should 
 be permitted in such cases, those who have 
 just cause for complaint would not dare to 
 complain, for fear of infinite vexation." And 
 it has been more recently decided, that, though 
 an affidavit made in a judicial proceeding is 
 false, slanderous, and malicious, no action will 
 lie against the party making it ; 18 C. B. 
 126; 4H. &N. 568. 
 
 The general rule is subject to this qualifi- 
 cation : that in all cases where the object or 
 occasion of the words or writing is redress for 
 an alleged wrong, or a proceeding in a tri- 
 bunal of before some individual or associated 
 body of men, such tribunal, individual, or 
 body must be vested with authority to render 
 judgment or make a decision in the case, or 
 to entertain the proceeding, in order to give 
 them the protection of privileged communica- 
 tions. This qualification of the rule runs 
 through all the cases where the question is 
 involved; Heard, Lib. & S. § 104. 
 
 Official Records of the States. The 
 constitution provides that full faith and credit 
 
JUDICIAL SALE 
 
 24 
 
 JUNIOR BARRISTER 
 
 shall be given in each slate to the public acts, 
 records, and judicial proceedingsof every other 
 state. Congress may by general laws prescribe 
 the manner in which such acts, records, and 
 proceedings shall be proved and the effect 
 thereof. The term records includes all execu- 
 tive, judicial, legislative, and ministerial acts, 
 constituting the public records of the state. 
 The object of this clause was to prevent judg- 
 ments from being disregarded in other states ; 
 25 Mich. 247 ; it does not change the nature 
 of a judgment, but places judgments ren- 
 dered in another state on a different footing 
 from what are known at common law as 
 foreign judgments ; 9 Wheat. 1 ; a judgment 
 rendered in another state is to be regarded as 
 a domestic judgment; 27 Penn. 247 ; but 
 this includes only judgments in civil actions ; 
 not in criminal prosecutions, or in divorce ; 
 17 Mass. 614; 122 id. 156; 56 Ind. 263. 
 The judgment of a state court has the same 
 validity and effect in any other state, as it 
 has in the state where it was rendered ; 6 
 Wheat. 129; 9 How. 520. The judicial 
 proceedings within the act are only such as 
 have been rendered by a competent court, 
 with full jurisdiction ; 9 Mass. 462; it may 
 be a superior court of record or an inferior 
 tribunal; 30 N. H. 78; 13 Ohio, 209; a 
 judgment may, however, be attacked on the 
 ground of a want of jurisdiction ; 18 Wall. 
 457 ; thus a judgment against a defendant 
 who was not served with proper process, and 
 ■who did not appear, would be entitled to no 
 credit in another state; 11 How. 165. The 
 constitution does not give to a judgment all the 
 attributes to which it was entitled in the state 
 where it was rendered ; 7 Gill & J. 434 ; but 
 if duly certified, it is admissible in evidence 
 in any state; 7 Cal. 54, 247; a state may 
 give a judgment rendered in another state 
 any effect it may think proper, always pro- 
 vided it does not derogate from legal effect 
 conferred upon it by the constitution and the 
 laws of congress in this behalf; 9 Mass. 462. 
 In case, however, full faith and credit is not 
 given to the judgment of another state, any 
 judgment based thereon will be invalid ; 
 7 Wall. 139. When the court rendering the 
 judgment had jurisdiction, its judgment is final 
 as to the merits ; 5 Wall. 302 ; 14 Tex. 352 ; 
 but no greater effect can be given to a judg- 
 ment than it had in the state where it was 
 rendered ; 17 Wall. 529 ; 18 N. Y. 468. 
 
 Legislative acts must be authenticated by 
 the seal of the state ; 4 Dall. 412. 
 
 JUDICIAL SALE. A sale, by authority 
 of some competent tribunal, by an officer 
 authorized by law for the purpose. 
 
 The oflficer who makes the sale conveys all 
 the rights of ythe defendant, or other person 
 against whoip 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. 45, 322. See Tax Sale. 
 
 JUDICIAL WRITS. In English Prac- 
 tice. Tlie capias and all other writs subse- 
 quent to the original writ not issuing out of 
 chancery, but from the court to which the 
 original was returnable. 
 
 Being grounded on what had passed in 
 that court in consequence of the sheriff's re- 
 turn, they are called judicial writs, in contra- 
 distinction to the writs issued out of chancery, 
 which were called original writs ; 3 Bla. 
 Com. 282. 
 
 / JUDICIARY. That which is done while 
 administering justice ; the judges taken col- 
 lectively : as, the liberties of the people arei 
 secured by a wise and independent judiciary. 
 See Courts ; 3 Story, Const, b. 3, c. 38. 
 
 JUDICIUM DEI (Lat. the judgment or 
 decision of God). 
 
 In Old English Law. A term applied to 
 trials by ordeal ; for, in all trials of this sort, 
 God was thought to interfere in favor of the 
 innocent, and so decide the cause. Th«se 
 trials are now all abolished. 
 
 JUICIO DE APEO. In Spanish Law. 
 
 The decree of a competent tribunal directing 
 the determining and marking the boundaries 
 of lands or estates. 
 
 JUICIO DE CONCURSO DE ACRE- 
 EDORES. In Spanish Law. . The decree 
 obtained by a debtor against his creditors, or 
 by the creditors against their debtor, for the 
 payment of the amount due, according to the 
 respective rank of each creditor, when the 
 property of the debtor is insufficient to pay 
 the whole of his liabilities. 
 
 JUNIOR. Younger. This has been held 
 to be no part of a man's name, but an addi- 
 tion by use, and a convenient distinction be- 
 tween a father and son of the same name 
 10 Paige, Ch. 170; 7 Johns. 649; 2 Caines," 
 164; 1 Pick. 388; 15 id. 7; 17 id. 200; 3 
 Mete. Mass. 330. 
 
 Any matter that distinguishes persons ren- 
 ders the addition of junior or senior unneces- 
 sary; 1 Mod. Ent. 35; Salk. 7. But if 
 father and son have both the same name, the 
 father shall he prima facie intended, if junior 
 be not added, or some other matter of distinc- 
 
 3W' Tff»;v!' ^^°-l^' llirf.S9; Hob. 
 330. If father and son have the same name 
 and addition, and the former sue the latter 
 the writ IS abatable unless the son have the 
 
 But if the father be the defendant and the 
 f\^^^ Pl^mtiff, there is no need of the 
 further addition of senior, or the elder to 
 the name of the father; 2 Hawk PI rl 
 187 ; Laws of Women, 380. ' ^'• 
 
 JUNIOR BARRISTER. A barrister 
 w A*l^® '''"'^ °*" 1"^^°'^ "=°"°sel. Moz & 
 vy. Also the junior of two counsel em- 
 ployea on the same side in a case. 
 
JUNIPERUS SABINA 
 
 25 
 
 JURATA 
 
 JUNIPERtrS SABINA (Lat.)- In 
 Medical Jurisprudence. This plant is com- 
 monly called savin. 
 
 It is used for lawful purposes in medicine, 
 but too frequently for the criijninal purpose 
 of producing abortion, generally endangering 
 the life of the woman. It is usually admin- 
 istered in powder or oil. The dose of oil for 
 lawful purposes, for a grown person, is from 
 two to four drops. Parr, Med. Diet. Sabina. 
 ^Foderfi mentions a case where a large dose of 
 powdered savin had been administered to an 
 ignorant girl in the seventh month of her 
 pregnancy, which had no effect on the fcetus. 
 It, however, nearly took the life of the girl. 
 Foder6, tome iv. p. 431. Given in suffi- 
 ciently large doses, four or six grains, in 
 the form of powder, it kills a dog in a few 
 hours ; and even its insertion into a wound 
 has the same effect. 3 Orlila, Trait6 des 
 Poisons, 42. For a form of indictment for 
 administering savin to a woman quick with 
 child, see 3 Chit. Cr. L. 798. See 1 Beck, 
 Med. Jur. 316. 
 
 JURA FISCALIA (Lat.). Rights of the 
 exchequer. 3 Bla. Com. 45. 
 
 JURA PERSONARUM (Lat.). In 
 Civil La'w. Rights which belong to men in 
 their different characters or relations, as father, 
 apprentice, citizen, etc. 1 Sharsw. Bla. Com. 
 122, n. 
 
 JURA IN RE (Lat.). In Civil Law. 
 Rights in a thing, as opposed to rights to a 
 thing (Jura ad rem) . Rights in a thing which 
 are not gone upon loss of possession, and 
 which give a right to an action in rem against 
 whoever has the possession. These rights are 
 of four kinds : dominium, hereditas, servitus, 
 pignus. Heineccius, Elem. Jur. Civ. § 333. 
 See Jus IN Re. 
 
 JURA REG-ALIA (Lat.) . Royal rights. 
 1 Bla. Com. 117, 119, 240; Z id. 45. See 
 21 & 22 Vict. c. 45. 
 
 JURAMENT.ZE CORPORALES(Lat.). 
 
 Corporal oaths, q. v. 
 
 JURAMBNTUM CALUMNIiE (Lat. 
 oath of calumny) . In Civil and Canon Law. 
 An oath required of plaintiff and defendant, 
 whether the parties themselves insist on it or 
 not, that they are not influenced in seeking 
 their right by malice, but believe their cause 
 to be just. It was also required of the attor- 
 neys and procurators of the parties. Called, 
 also, jusjurandum, or sacramentum calumnice. 
 Calv. Lex. ; Vicat, Voc. Jur, Utr. ; Clerke, 
 Pr. tit. 42. 
 
 JUR AMENTUM JUDICIALB (Lat.). 
 In Civil Law. An oath which the judge, of 
 his own accord, defers to either of the parties. 
 
 It is of two kinds : Jirst, that which the 
 judge defers for the decision of the cause, and 
 which is understood by the general name 
 juramentumjudiciale, and is sometimes called 
 suppletory oath, juramentum suppletorium ; 
 second, that which the judge defers in order 
 to fix and determine the amount of the con- 
 
 demnation which he ought to pronounce, and 
 which is called juramentum in litem, Pothier, 
 Obi. p. 4, c. 3, s. 3, art. 3. 
 
 JUPAT. In Practice. That part of an 
 affidavit where the officer certifies that the 
 same was "sworn" before him. 
 
 The jurat is usually in the following form, 
 viz. : " Sworn and subscribed before me, on 
 
 the day of , 1843. J. P., justice of the 
 
 peace." 
 
 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; 3 Disn. 472. But 
 see 3 Wend. 283 ; 6 id. 543 ; 13 id. 323 ; 3 Cow. 
 553 ; 3 Johns. 479 ; 17 Ind. 394 ; Proflf. Not. 
 
 An officer in some English corporations, 
 chiefly in certain towns in Kent and Sussex, 
 whose duties are similar to those of aldermen 
 in others ; stat. 1 Edw. IV. ; 2 & 3 Edw. 
 VL c. 30; 13 Edw. L c. 26. An officer in 
 the island of Jersey, of whom there- are 
 twelve, members of the royal court, and 
 elected for life ; 1 Steph. Com. 101 ; L. R. 
 1 P. C. 94-114. 
 
 JURATA (Lat.). In Old English Law. 
 A jury of twelve men sworn. Especially, a 
 jury of the common law, as distinguished 
 from the assiza, or jury established or re- 
 established by Stat. Hen. II. 
 
 The jurata, or common-law jury, was a jury 
 called in to try the cause, upon the prayer of the 
 parties themselves, in cases where a jury was not 
 given by statute Hen. II.,anda6the jury was not 
 given under the statute of Henry II. , the writ of 
 attaint provided in that statute would not lie 
 against a jurata for false verdict. It was common 
 for the parties to a cause to request that tlie cause 
 might be decided by the assiza, sitting as a jurata, 
 in order to save trouble of summoning a new 
 jury, in which case "cadit assiza etvertiturin 
 juratam," and the cause is said to be decided 
 non in modum assizce, but in modum juratce. 
 1 Reeve, Hist. Eng. Law, 335, 336 ; Glauville, 
 lib. 13, c. 30 ; Bracton, lib. 3, c. 30. But this 
 distinction has been long obsolete. 
 
 Juratae were divided into : jlrst, jurata dila- 
 toria, which inquires out oflFenders against the 
 law, and presents their names, together with 
 their offences, to the judge, and which is of two 
 kinds, rnajor and minor, according to the extent 
 of its jurisdiction ; second, jurata judicaria, 
 which gives verdict as to the matter of fact in 
 issue, and is of two kinds, civilis, in civil causes, 
 and eriminalis, in criminal causes. Du Cange. 
 
 A clause in nisi prius records called the 
 jury clause, so named from the word jurata, 
 with which its Latin form begins. This 
 entry, jurata ponitur in respectu, is abol- 
 ished. Com. Law Proc. Act, 1852, § 104; 
 Wharton, Law Lex. ; 9 Co. 32 ; 59 Geo. III. 
 0. 46; 4 Bla. Com. 342. Such trials 
 were usually held in churches, in presence 
 of bishops, priests, and secular judges, after 
 three days' fasting, confession, communion, 
 etc. Du Cange. 
 
 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 alleged. Its usual form is, " Sworn 
 
 (or affirmed) before me, the day of , 
 
 18—." A jurat. 
 
JURATORY CAUTION 
 
 26 
 
 JURISDICTION 
 
 JURATORY CAUTION. A security 
 sometimes taken in Scotch proceedings, when 
 no better can be had, viz. : an inventory of 
 effects given up upon oath, and assigned in 
 security of the sums which may be found due. 
 Bell, Diet. 
 
 JURE DIVINO. 
 
 By divine right. Divine Right is the name 
 generally given to the theory of government 
 which holds monarchy to be the only legitimate 
 form of government. The monarch and his 
 legitimate heirs being, by divine right, entitled 
 to the sovereignty, cannot forfeit that right by 
 any misconduct, or any period of dispossession. 
 But where the Isnowledge of the right heir is 
 lost, the usurper, being in possession by the per- 
 mission of God, is to be obeyed as the true heir. 
 Sir Robert Filmer, the most distinguished ex- 
 ponent of the theory, died about 1650. 
 
 JURE PROPINQUITATIS (Lat.). By 
 right of relationship. Co. Litt. 10 6. 
 
 JURE REPRESENTATIONIS (Lat.). 
 By right of representation. See Pek Stirpes. 
 2 Sharsw. Bla. Com. 219, n. 14, 224. 
 
 JURE UXORIS (Lat.). By right of a 
 wife. 
 
 JURIDICAL. Relating to administration 
 of justice, or office of a judge. Webster, Diet. 
 
 Regular; done in conformity to the laws 
 of the country and the practice which is there 
 observed. 
 
 JURIS ET DE JURE (Lat.). Of right 
 and by law. A presumption is said to be 
 juris et de jure when it is conclusive, t. e. 
 when no evidence will be admitted to rebut 
 it, in contradistinction to a presumption, which 
 is simply juris, i. e. rebuttable by evidence ; 
 1 Greenl. Ev. § 15, note ; Wills, Circ. Ev. 
 29 ; Best, Pres. 20, § 17; Best, Ev. 43, § 48. 
 
 JURIS ET SEISIN.aj CONJUNCTIO 
 (Lat.). The union of seisin, or possession, 
 and the right of possession, forming a com- 
 plete title. 2 Bla. Com. 199, 311. 
 
 JURISCONSULTUS (Lat. skilled in 
 the law). In Civil La'w. A person who 
 has such knowledge of the laws and customs 
 which prevail in a state as to be able to ad- 
 vise, act, and to secure a person in his deal- 
 ings. Cicero. 
 
 The early jurisconsults gave their opinions 
 gratuitously, and were also employed in draw- 
 ing up written documents. From Augustus to 
 Adrian, only those allowed by the emperor could 
 be jurisconsults : before and after those empe- 
 rors, any could be jurisconsults who chose. If 
 their opinion was unanimous, it had the force of 
 law : if not, the praetor could follow which 
 opinion he chose, vicat, Voc. Jur. Utr. 
 
 There were two sects of jurisconsults at Bome, 
 the Proculeians and Labinians. The former were 
 founded by Labeo, and were In favor of innova^ 
 tion ; the latter by Capito, and held to the re- 
 ceived doctrines. Gushing, nit. Bom. Law. § § 5, 6. 
 
 JURISDICTION (hat. jus, law, clicere, 
 to say). The authority by which judicial 
 officers take cognizance of and decide causes. 
 Power to hear and determine a cause. 3 Ohio, 
 494; 6 Pet. 591. The right of a, judge to 
 pronounce a sentence of the law, on a case or 
 
 issue before him, acquired through due pro- 
 cess of law. It includes power to enforce the 
 execution of what is decreed. 9 Johns. 239 ; 
 
 3 Mete. Mass. 460; Thach. 202. ' 
 Appellate jurisdiction is that given by ap- 
 peal from the judgment of another court. 
 
 Assistant jurisdiction is that afforded by 
 a court of chancery in aid of a court of law : 
 as, for example, by a bill of discovery, or for 
 the perpetuation of testimony, and the like. 
 
 Jurisdiction of the cause is the power over 
 the subject-matter given by the laws of the 
 sovereignty in which the tribunal exists. 
 
 Civil jurisdiction is that which exists when 
 the subject-matter is not of a criminal nature. 
 
 Criminal jurisdiction is that which exists 
 for the punishment of crimes. 
 
 Concurrent jurisdiction is thatwhich ispos^ 
 sessed over the same parties or subject matter 
 at the same time by two or more separate tri- 
 bunals. 
 
 Exclusive jurisdiction is that which gives 
 to one tribunal sole power to try the cause. 
 
 General jurisdiction is that which extends 
 to a great variety of matters. 
 
 Limited jurisdiction (called, also, special 
 and inferior') is that which extends only to 
 certain specified causes. 
 
 Original jurisdiction is that bestowed upon 
 a tribunal in the first instance. 
 
 Jurisdiction of the person is that obtained 
 by the appearance of the defendant before 
 the tribunal. 9 Mass. 462. 
 
 Territorial jurisdiction is the power of the 
 tribunal considered with reference to the ter- 
 ritory within which it is to be exercised. 9 
 Mass. 462. 
 
 Jurisdiction is given by the law; 22 Barb. 
 323 ; 3 Tex. 167 ; and cannot be conferred 
 by consent of the parties ; 5 Mich. 331 ; 3 
 Iowa, 470; 23 Conn. 112; 2 Ohio St. 223; 
 11 Ga. 453 ; 23 Ala. N. s. 155 ; 34 Me. 223 ; 
 
 4 Cush. 27; 4 Gilm. 131; 6 Ired. 139; 4 
 Yerg. 579; 3 M' Cord, 280; 12 Miss. 549; 
 see 17 Mo. 258; but a privilege defeating 
 jurisdiction may be waived if the court has 
 jurisdiction over the subject-matter; 4 Ga. 
 47; llirf. 453; 14 id. 589 ; 6 Tex. 379; 13 
 111. 432 ; 1 Iowa, 94 ; 1 Barb. 449 ; 7 Humphr. 
 209 ; 4 Mass. 593 ; 4 M'Cord. 79 ; 3 McLean, 
 58[; 4 Wash. C. C. 84; 5 Cra. 288; 8 
 Wheat. 699; and parties may admit facts 
 which show jurisdiction; 22 Wall. 822. 
 
 _ Jurisdiction given by the law of the sover- 
 eignty of the tribunal is held sufficient every, 
 where, at least as to all property within the 
 sovereignty; 2 Blatchf. 427; 10 Rich. Eq. 
 19 ; 27TVIo. 594 ; 1 R. 1. 285 ; and as to per- 
 sons ol whom process is actually and person, 
 ally served within the territorial limits of 
 jurisdiction, or who appear and by their 
 pleadings admit jurisdiction ; 6 Tex. 275 : 4 
 ^\\: "5; 8 Ga. 83. See 11 Barb. 309. 
 But the appearance of a person on whom no 
 personal service of process has been made 
 merely to object to the jurisdiction, is not such 
 an admission; 87 N. H. 9; 9 Mass. 462- 
 Hard. 96. And see 2 Sandf. 717. Jurfsl 
 
JURISDICTION 
 
 27 
 
 JUKY 
 
 diction must be either of the cause, which is 
 acquired by exercising powers conferred by 
 law over property within the territorial limits 
 of the sovereignty ; or of the person, which is 
 acquired by actual service of process or per- 
 sonal appearance of the defendant. The 
 question as to the possession of the former is 
 to be determined according to the law of the 
 sovereignty ; Dav. 407 ; of the latter, as a 
 simple question of fact. See Conflict or 
 Laws ; Forkign Judgments. 
 
 A court of general jurisdiction is presumed 
 to be acting within its jurisdiction till the con- 
 trary is shown ; 10 Ga. 371 ; 10 Barb. 97 ; 3 
 111.269; 13«W. 432; 15 Vt. 46 ; 2 Dev. 
 431 ; 4 id. 305. A court of limited jurisdic- 
 tion, or a court acting under special powers, 
 has only the jurisdiction expressly delegated ; 
 27 Ala. N. s. 291 ; 82 id. 227 ; 26 Mo. 65; 
 1 Dougl. Mich. 384 ; 7 Hill, So. C. 39 ; and 
 it must appear from the record that its acts are 
 within its jurisdiction; 5 Harr. Del. 387; 1 
 Dutch. 554; 2 Zabr. 356, 396; 2 111. 554; 
 20 id. 286 ; 27 Mo. 101 ; Hempst. 423 ; 22 
 Barb. 323 ; 28 Miss. 737 ; 26 Ala. N. s. 568 ; 
 5 Ind. 157 ; 1 Greene, Iowa, 78 ; 21 Me. 
 340; 16Vt. 246; 2 How. 319; unless the 
 legislature, bv general or special law, remove 
 this necessity; 24 Ga. 245 ; 7 Mo. 373; 1 
 Pet. C. C. 36. See 1 Salk. 414 ; Bacon, 
 Abr. Courts (C, D). 
 
 Where one of two courts of concurrent 
 jurisdiction has talcen cognizance of a cause, 
 the other will not entertain jurisdiction of the 
 same cause; 1 Grant, Cas. 212; 8 Ohio St. 
 599; 16 Ohio, 373; 27Vt. 518; 28irf. 470; 
 25 Barb. 513; 8 Md. 254; 2 Md. Ch. Dec. 
 42; 4 Tex. 242; 19 Ala. N. s. 438; 1 Fla. 
 198 ;, 2 Murph. 195 ; 6 McLean. 355. 
 
 Any act of a tribunal beyond its jurisdic- 
 tion is null and void, and of no efi'ect whatever ; 
 33 Me. 414 ; 13 111. 432 ; 21 Barb. 9 ; 26 
 N. H. 232 ; whethe* without its territorial 
 jurisdiction ; 21 How. 506 ; 1 Grant, Cas. 
 218; 15 Ga. 457; or beyond its powers; 22 
 Barb. 271 ; 13 111. 432 ; 1 Strobh. 1 ; 1 Dougl. 
 Mich. 390; 5 T. B. Monr. 261 ; 16 Vt. 246. 
 Want of jurisdiction may be talten ad- 
 vantage of by plea in abatement; 18 111. 
 292 ; 3 Johns. 105 ; 20 How. 541 ; see 6 
 Fla. 724; and must be talsen advantage of 
 before making any plea to the merits, if at 
 all, when it arises from formal defects in the 
 process, or when the want is of jurisdiction 
 over the person ; 7 Cal. 584 ; 19 Ark. 241 ; 
 17 id. 340; 28 Mo. 319; 22 Barb. 323; 6 
 Cush. 560 : 13 Ga. 318 ; 20 How. 541. See 
 2 K. I. 450 ; 30 Ala. N. s. 62. But where 
 the cause of action is not within the jurisdic- 
 tion granted by law to the tribunal, it will 
 dismiss the suit at any time when the fact is 
 brought to its notice ; 22 Barb. 271 ; 23 Conn. 
 172; 2 Ohio St. 26; 5 T. B. Monr. 261; 13 
 Vt. 175; 4 111. 133. 
 
 It is rarely, if ever, too late to object to 
 the jurisdiction of a court where the want of 
 power to hear and determine appears on the 
 face of the proceedings ; per Bronson, J., 2 
 
 Hill, N.Y. 159. Thus, an appellant from chan- 
 cery to the court of en-ors may avail himself 
 in the latter court of an objection to the 
 chancellor's jurisdiction, though it was not 
 made before him, when the objection, if valid, 
 is of such a kind that it could not have been 
 obviated, had it been started at an earlier 
 stage in the proceedings ; id. 
 
 Courts of dernier resort are conclusive 
 judges of their own jurisdiction; 1 Park. 
 'Cr. Cas. 360 ; 1 Bail. 294. 
 
 JTTRISDICTION CLAUSE. In 
 Equity Practice. That part of a bill which 
 is intended to give jurisdiction of the suit to 
 the court, by a general averment that the acts 
 complained of are contrary to equity and 
 tend to the injury of the plaintiff, and that 
 he has no remedy, or not a complete remedy, 
 without the assistance of a court of equity, is 
 called the jurisdiction clause. Mitf. Eq. PL 
 43. 
 
 This clause is unnecessary ; for if the court 
 appear from the bill to have jurisdiction, the 
 bill will be sustained without this clause ; and 
 if the court have not jurisdiction, the bill will 
 be dismissed though the clause may be in- 
 serted. Story, Eq. PI. § 34. 
 
 JURISPRUDENCE. The science of 
 the law. The practical science of giving a 
 wise interpretation to the laws and making a 
 just application of them to all cases as they 
 arise. 
 
 By science, in the first definition, is understood 
 that connection of truths which is founded on 
 principles either evident in themselves or capa- 
 ble of demonstration, — a collection of truths of 
 the same kind, arranged in methodical order. 
 In the latter sense, it is the habit of judging the 
 same questions in the same manner, and by 
 this course of judgments forming precedents. 1 
 Ayliffe, Pand. 3. See Austin, Amos, Markby, 
 Heron, Phillimore, Lorimer, Lindley, on Juris- 
 prudence. 
 
 JURIST. One versed in the science of 
 the law. One skilled in the civil law. One 
 skilled in the law of nations. 
 
 JURO. In Spanish La-w. A certain 
 pension granted by the king on the public 
 revenues, and more especially on the salt- 
 works, by favor, either in consideration of 
 meritorious services or in return for money 
 loaned the government or obtained by it 
 through forced loans. It is a portion of the 
 yearly revenue of the state, assigned as a 
 rightful indemnity, either in perpetuity or as 
 an annuity. 
 
 JUROR (Lat. jWo, to swear). A man 
 who is sworn or affirmed to serve on a jury. 
 
 JURY (Lat. jurata, sworn). In Prac- 
 tice. A body of men who are sworn to der 
 clare the facts of a. case as they are proven 
 from the evidence placed before them. 
 
 The origin of this venerable institution of the 
 common law is lost in the obscurity of the mid- 
 dle ages. Antiquarians trace it back to an early 
 period of English history ; but, if known to the 
 Saxons, it must have existed in a very crude 
 form, and may have been derived by them from 
 
JURY 
 
 28 
 
 JURY OF WOMEN 
 
 the mode of administering justice by the.peers 
 of litigant parties, under the feudal institutions 
 of France, Germany, and the other northern 
 nations of Europe. The ancient ordeals of red- 
 hot iron and boiling water, practised by the 
 Anglo-Saxons to test the innocence of a party 
 accused of crime, gradually gave way to the 
 wager of battle, in the days of the Normans ; 
 while this latter mode of trial disappeared in 
 civil cases in the thirteenth century, when Henry 
 II. introduced into the assizes a trial by jury. 
 It is referred to in Magna Charta as an institu- 
 tion existing in England at that time ; and its 
 subsequent history is well known.. See Grand 
 Assize ; 3 Bla. Com. 349 ; 1 Reeve, Hist. Eng. 
 Law, 23, 84 ; Granville, c. 9 ; Bracton, 155 ; 11 
 Am. L. Rev. 34. By common law one of the 
 qualifications of a juryman was that he should 
 be a freeholder : 3 Bla. Com. 361 ; and this re- 
 quirement is preserved in many of the United 
 States ; 20 Am. L. Reg. n. s. 436, 498. 
 
 Trial by jury is guaranteed by the constitution 
 of the United States in all criminal cases except 
 upon impeachments, and in all suits at common 
 law where the subjtect-matter of the controversy 
 exceeds twenty dollars in value. The right to 
 such a trial is also asserted in many of our state 
 constitutions. It has been held, however, not to 
 be an infringement of the prisoner's constitu- 
 tional right, where a statute provides that 
 in all criminal prosecutions, the party accused. 
 If he shall so elect, may be tried by the court 
 instead of by a jury ; 19 Am. L. Reg. N. s. Ill ; 
 5 Ohio St. • 57 ; 30 Mich. 116 ; see 16 Am. L. 
 Reg. N. s. 705 ; and that the constitutional pro- 
 vision does not apply to suits against the govern- 
 ment ; 13 Ct. CI. 312. 
 
 The term "jury" as used in the constitution 
 means twelve competent men, disinterested and 
 impartial, not of kin nor personal dependents of 
 either of the parties, having their homes within 
 the jurisdictional limits of the court ; drawn and 
 selected by ofBcers free from all bias in favor of 
 or against either party; duly impanelled, and 
 sworn to render a true verdict, according to the 
 law and the evidence ; 11 Nev. 39. 
 
 A common jury is one drawn in the usual 
 and regular manner. 
 
 A grand jury is a body organized for cer- 
 tain preliminary purposes. 
 
 A jury de medietate lingucE is one com- 
 posed half of aliens and half of denizens. 
 
 Such juries might formerly be claimed, both 
 in civil and criminal cases, where the party 
 claiming the privilege was an alien born, by 
 virtue of 38 Edw. III. c. 13. And see 8 Hen. 
 VI. c. 39 ; 3 Geo. III. c. 35, by which latter 
 statute the right is thought to be taken away in 
 civil cases. See 3 Bla. Com. 360 ; 4 id. 352. 
 A provision of a similar nature, providing for a 
 jury one-half of the nationality of the party 
 claiming the privilege where he is a foreigner, 
 exists in some of the states of the United States. 
 
 A petit or traverse jury is a jury who try 
 the question in issue and pass finally upon 
 the truth of the facts in dispute. The term 
 jury is ordinarily applied to this body dis- 
 tinctively. 
 
 A special jury is one selected by the assist- 
 ance of the parties. 
 
 This is granted in some cases upon motion and 
 cause shown, under various local provisions. 
 See 33 E. L. & Eq. 406. The method atcommon 
 law was for the officer to return the names of 
 forty-eight principal freeholders to the prothono- 
 tary or proper officer. The attorneys of the 
 
 respective parties, being present, strike off each 
 twelve names, and from the remaining twenty- 
 four the jury is selected. A similar course is 
 pursued in those states where such juries are 
 allowed. See 3 Sharsw. Bla. Com. 357. 
 
 A struck jury is a special jury. See 4 
 Zabr. 843. 
 
 2'Ae number of jurors must be twelve: 
 and it is held that the term jury in a consti- 
 tution imports, ex vi termini, twelve men; 
 6 Mete. 231 ; 4 Ohio St. 177 ; 2 Wise. 22 ; 3 
 id. 219; whose verdict is to be unanimous; 
 12 N. Y. 190. See 11 Nev. 39, supra. 
 
 Qualifications of jurors. Jurors must pos- 
 sess the qualifications which may be prescribed 
 by statute, must be free from any bias caused 
 by relationship to the parties or interest in 
 the matter in dispute, and in criminal cases 
 must not have formed any opinion as to the 
 guilt or innocence of the accused. See Chal- 
 lenge. 
 
 The selection of jurors is to be made im- 
 partially ; and elaborate provisions are made 
 to secure this impartiality. In general, a 
 sufficient number are selected, from among 
 the qualified citizens of the county or district, 
 by the sheriff, or similar executive officer of 
 the court, and, in case of his disqualification, 
 by the coroner, or, in some cases, by still 
 other designated persons. See Elisors. 
 From among these the requisite number is 
 selected at the time of trial, to whom objec- 
 tion may be made by the parties. See 
 Challenge. 
 
 The province of the jury is to determine 
 the truth of the facts in dispute in civil cases, 
 and the guilt or innocence of the person ac- 
 cused in criminal cases. See Charge. If they 
 go beyond their province, their verdict may 
 be set aside; 4 Maule & S. 192; 3 B. & C. 
 357 ; 2 Price, 282 ; 2 Cow. 479 ; 10 Mass. 39. 
 
 Duties and privileges of. Qualified persons 
 may be compelled to •erve as jurors under 
 penalties prescribed by law. They are ex- 
 empt from arrest, in certain cases. See Pri- 
 vilege. They are liable to punishment for 
 misconduct in some cases. 
 
 Consult Edwards, Forsyth, Ingersoll, on 
 Juries; 1 Kent, 623, 640. 
 
 JURY BOX. A place set apart for the 
 jury to sit in during the trial of a cause. 
 
 JURY LIST. A paper containing the 
 names of jurors impanelled to try a cause, or 
 it contains the names of all the jurors sum- 
 moned to attend court. 
 
 JURYMAN. A juror ; one who is im- 
 panelled on a jury. Webster, Diet. 
 
 JURY PROCESS. In Practice. The 
 
 writs for summoning a jury, viz.: in England, 
 venire juratores facias, and distringas jura- 
 tores, or habeas corpora juratorum. These 
 writs are now abolished, and jurors are sum- 
 moned by precept. 1 Chitty, Archb. 344 ; 
 Com. Law Proc. Act, 1852, §§ 104, 105- 3 
 Chitty, Stat. 519. 
 
 JURY OP WOMEN. A jury of women 
 is given in two cases ; viz. : on writ de ventre 
 
JUS 
 
 29 
 
 JUS INCOGNITUM 
 
 inspiciendo, in which case the jury is made 
 up of men and women, but the search is made 
 by the latter; 1 Mad. Ch. 11 ; 2 P. Wms. 591 ; 
 and where pregnancy is pleaded by condemned 
 criminal in delay of execution, in which case 
 a jury of twelve discreet women is formed, 
 and on their returning a verdict of "enseinte" 
 the execution is delayed till birth, and some- 
 times the punishment commuted to perpetual 
 exile. But if the criminal be privimevt 
 enseinte, and not quick, there is no respite. 
 2 Hale, PI. Cr. 412. As to time of quicken- 
 ing, see 1 Beck, Med. Jur. 229. 
 
 JUS (Lat.). Law; right; equity. Story, 
 Eq. Jur. § 1. 
 
 JUS ABUTENDI (Lat.). The right to 
 abuse. By this phrase is understood the right 
 to abuse property, or having full dominion 
 over property. 3 TouUier, n. 86. 
 . JUS ACCRBSCBNDI (Lat.). The right 
 of survivorship. 
 
 At common law, when one of several joint 
 tenants died, the entire tenancy or estate 
 went to the survivors, and so on to the last 
 survivor, who took an estate of inheritance, 
 This right, except in estates held in trust, has 
 been abolished by statute in Alabama, Dela- 
 ware, Georgia, Illinois, Indiana, Kentucky, 
 Michigan, Missouri, Mississippi, New York, 
 North Carolina, Pennsylvania, South Caro- 
 lina, Tennessee, and Virginia; Griffin, Reg.; 
 1 Hill, Abr. 439, 440; in Connecticut; 1 
 Koot, 48 ; 1 Swift, Dig. 102. In Louisiana, 
 this right was never recognized. See 11 S. & 
 E. 192 ; 2 Caines, Cas. 326 ; 3 Vt. 543 ; 6 T. 
 B. Monr. 15 ; Estate in Common ; Estate 
 IN Joint Tenancy. 
 
 JUS AQiEDUCTUS (Lat.). In Civil 
 La'w. The name of a servitude which gives 
 to the owner of land the right to bring down 
 water through or from the land of another, 
 either from its source .or from any other place. 
 
 Its privilege may be limited as to the time 
 when it may be exercised. If the source fails, 
 the servitude ceases, but revives when the 
 water returns. If the water rises in, or 
 naturally flows through, the land, its proprie- 
 tor cannot by any grant divert it so as to pre- 
 vent it flowing to the land below ; 2 KoUe, 
 Abr. 140, 1. 25 ; Lois des BS,t. part 1, c. 3. a. 1, 
 art. 1. But if it had been brought into his 
 land by artificial means, it seems it would be 
 strictly his property, and that it would be in 
 his power to grant it; Dig. 8. 3. 1. 10; 3 
 Burge, Confl. Laws, .417. See Kiver;- 
 "Water-Course ; Washb. Easem. 
 
 JUS CIVILE (Lat.). In Roman Law. 
 
 The private law, in contradistinction to the 
 public law, or Jus gentium ; 1 Savigny, Dr. 
 Kom. c. 1, § 1. 
 
 JUS CIVITATIS (Lat.). In Roman 
 Law. The collection of laws which are to be 
 observed among all the members of a nation. 
 It is opposed to jus gentium, which is the law 
 which regulates the affairs of nations among 
 themselves. 2 Lepage, El. du Dr. c. 5, 1. 
 
 JUS CLOACSi (Lat.). In Civil Law. 
 The name of a servitude which requires the 
 party who is subject to it to permit his neigh- 
 bor to conduct the waters which fall on his 
 grounds over those of the servient estate. 
 
 JUS DARE (Lat.). To give or to make 
 the law. Jus dare belongs to the legislature ; 
 jus dicere, to the judge. 
 
 JUS DELIBERANDI (Lat.). The right 
 of deliberating given to the heir, in those 
 countries where the heir may have benefit of 
 inventory (q. v.), in which to consider whether 
 he will accept or renounce the succession. 
 
 In Louisiana he is allowed ten days before 
 he is required to made his election. La. Civ. 
 Code, art. 1028. 
 
 JUS piCERE (Lat.). To declare the 
 law. It is the province of the court jus dicere 
 (to declare what the law is). 
 
 JUS DISPONENDI (Lat.). The right 
 to dispose of a thing. 
 
 JUS DUPLICATUM (Lat. double right). 
 When a man has the possession as well as the 
 property of any thing, he is said to have a 
 double right, jus duplicatum. Bracton, 1. 4, 
 tr. 4, c. 4 ; 2 Bla. Com. 1 99. 
 
 JUS FECIALS (Lat. ). In Roman Law. 
 That species of international law which had 
 its foundation in the religious belief of differ- 
 ent nations : such as the international law 
 which now exists among the Christian people 
 of Europe. Savigny, Dr. Rom. c. 2, § 11. 
 
 JUS FIDUCIARUM (Lat.). In Civil 
 Law. A right to something held in trust : 
 for this there was a remedy in conscience. 2 
 Bla. Com. 328. 
 
 JUS GENTIUM (Lat.). The law of 
 nations. Although the Romans used these 
 words in the sense we attach to law of na- 
 tions, yet among them the sense was much 
 more extended. Falck, Encyc. Jur. 102, n. 
 42. It is said to have been a system made up 
 jjy the early Roman lawyers of the common 
 ingredients in the customs of the old Italian 
 tribes, for the purpose of adjudicating ques- 
 tions arising in Rome between foreigners or 
 natives and foreigners. Maine, Anc. Law, 49. 
 
 Modem writers have made a distinction be- 
 tween the laws of nations which have for 
 their object the conflict between the laws of 
 different nations, which is called jus gentium, 
 privatum, or private international law, and 
 those laws of nations which regulate those 
 matters which nations, as such, have with 
 each other, which is denominated jus gentium 
 publicum, or public international law. Foelix, 
 Droit Intern. Priv6, n. 14. See Interna- 
 tional La-w. 
 
 JUS GLADII (Lat. the right of the 
 sword). Supreme jurisdiction. The right 
 to absolve from or condemn a man to death. 
 
 JUS HABENDI (Lat.). The right to 
 have a thing. ^ 
 
 JUS INCOGNITUM (Lat.). An un- 
 known law. This term is applied by the 
 
JUS LEGITIMUM 
 
 30 
 
 JUS KERUM 
 
 civilians to obsolete laws, which, as Bacon 
 truly observes, are unjust ; for the law to be 
 just must give warning before it strikes. Ba- 
 con, Aph. 8, s. 1 ; Bowyer, Mod. Civ. Law, 
 33. But until it has become obsolete no 
 custom can prevail against it. See Obso- 
 lete. 
 
 JUS LEGITIMUM (Lat.). In Civil 
 Laiw. A legal right which might have been 
 enforced by due course of law. 2 Bla. Com. 
 328. 
 
 JUS MARITI (Lat.). In Scotch Law. 
 The right of the husband to administer, dur- 
 ing the marriage, his wife's goods and the 
 rents of her heritage. 
 
 In the common law, by jus mariti is under- 
 stood the rights of the husband, as jus mariti 
 cannot attach upon a bequest to the wife, 
 although given during coverture, until the 
 executor has assented to the legacy. 1 Bail. 
 Eq. 214. 
 
 JUS MBRUM (Lat.). A simple or bare 
 right ; a right to property in land, without 
 possession or the right of possession. 
 
 JUS PATRONATUS (Lat.). In Ec- 
 clesiastical Law. A commission from the 
 bishop, directed usually to his chancellor and 
 others of competent learning, who are required 
 to summon a jury, composed of six clergymen 
 and six laymen, to inquire into and examine 
 who is the rightful patron. 3 Bla. Com. 246. 
 
 JUS PERSONARUM (Lat.). The 
 right of persons. See Jura JPersonakum. 
 
 JUS PRECARIUM (Lat.). In Civil 
 Law. A right to a thing held for another, 
 for which there was no remedy. 2 Bla. Com. 
 328. 
 
 JUS POSTLIMINII (Lat.). The right 
 to claim property after recapture. See Post- 
 liminy ; Marsh. Ins. 573; 1 Kent, 108; 
 Dane, Abr. Index. 
 
 JUS PROJICIENDI (Lat.). In Civil 
 Law, The name of a servitude by which the 
 owner of a building has a right of projecting 
 a part of his building towards the adjoining 
 house, without resting on the latter. It is 
 extended merely over the ground. Dig. 50. 
 16. 242; 8. 2. 25; 8. 5. 8. 5. 
 
 JUS PROTEGENDI (^Lat.). In Civil 
 Law. ,The name of a servitude : it is a right 
 by which a part of the roof or tiling of one 
 house is made to extend over the adjoining 
 house. Dig. 60. 16. 242. 1 ; 8. 2. 25 ; 8. 5. 8. 5. 
 
 JUS QU.SJSITUM (Lat.). A right to 
 ask or recover : for example, in an obligation 
 there is a binding of the obligor, and a jus 
 qumsitum in the obligee. 1 Bell, Com. 823. 
 
 JUS IN RE (Lat.). A right which be- 
 langs to a person, immediately and absolutely, 
 in a thing, and which is the same against the 
 whole world, — idem erga omnes. 
 
 JUS RELICTS (Lat.). In Scotch Law. 
 
 The right of a wife, after her husband's death, 
 to a ttiird of movables if there be children, 
 and to one-half if there be none. 
 
 JUS AD REM (Lat.). A right which 
 belongs to a person only mediately and rela- 
 tively, and has for its foundation an obligation 
 incurred by a particular person. 
 
 The jus in re, by the effect of its yery nature, 
 is independent and absolute, and is exercised per 
 ae ipaum, by applying It to its object ; but the jus 
 ad rem is the faculty of demanding and obtain- 
 ing the performance of some obligation by which 
 another is bound to me ad aliqiiid dandum, vel 
 faciendum, vel prcestandnm. Thus, if I have the 
 ownership of a horse, the usufruct of a flock of 
 sheep, the right of habitation of a house, a right 
 of way over your land, etc., my right in the 
 horse, in the flock of sheep, in the house, or the 
 land, belongs to me directly, and without any 
 intermediary ; it belongs to me absolutely, and 
 independently of any particular relation with 
 another person ; I am in direct and immediate 
 i-elation with the thing itself which forms the 
 object of my right, without reference to any 
 other relation. "This constitutes a jus in re. If, 
 on the other hand, the horse is lent to me by you, 
 or if I have a claim against you for a thousand 
 dollars, my right to the horse or to the sum of 
 money exists/only relatively, and can only be 
 exercised through you ; my relation to the object 
 of the right is mediate, and is the result of the 
 immediate relation of debtor and creditor exist- 
 ing between you and me. This is a jtis ad rem. 
 Every Jms in re, or real right, may be vindicated 
 by the actio in rem against him who is in posses- 
 sion of the thing, or against any one vho con- 
 tests the right. It has been said that the words 
 jus in re of the civil law convey the same idea as 
 thing in possession at common law. This is an 
 error, arising from a confusion of ideas as to the 
 distinctive characters of the two classes of 
 rights. Nearly all the common-law writers seem 
 to take it for granted that by the jus in re is un- 
 derstood the title or property in a thing in the 
 possession of the owner ; and that by the jus ad 
 rem is meant the title or property in a thing not 
 in the possession of the owner. But it is obvious 
 that possession is not one of the elements consti- 
 tuting the jus in re : although possession is gen- 
 erally, but not always, one of the incidents of 
 this right, yet the loss of possession does not ex- 
 ercise the slightest influence on the character of 
 the right itself, unless it should continue for a 
 suflBcient length of time to destroy the right 
 altogether by prescription. In many instances 
 ihejus in re is not accompanied by possession at 
 all : the usuary is not entitled to the possession 
 of the thing subject to his use ; still, he has a 
 jus in re. So with regard to the right of way, 
 etc. See Dominium. 
 
 A mortgage is considered by most writers as a 
 jus in re ; but it is clear that it is a jm ad rem : 
 it is granted for the sole purpose of securing the 
 payment of a debt or the fulfilment of some 
 other personal obligation. In other words, it is 
 an accessory to a principal obligation and corre- 
 sponding right : it can have no separate and 
 mdependent existence. The immovable on 
 which I have a mortgage is not the object of the 
 right, as m the case of the horse of which I am 
 *'i\°""«'"' O' the house of which I have the right 
 of habitation, etc. : the true object of my rilht 
 IS the sum of money due to me, the payment of 
 which I may enforce by obtaining a decree for 
 the sale of the property mortgaged. 2 Marcadfi, 
 
 OOU €t 8€Q, ' 
 
 JUS RERUM (Lat.). The right of 
 things. Its principal object is to ascertain 
 now tar a person can have a permanent do- 
 minion over things, and how that dominion 
 IS acquired. 
 
JUS STRICTUM 
 
 31 
 
 JUSTICE OF THE PEACE 
 
 JUS STRICTUM (Lat.). A Latin 
 phrase, which signifies law interpreted with- 
 out any modification, and in its utmost rigor. 
 
 JUS UTBNDI (Lat.)- The right to use 
 
 Property ^ithout deitroying its substance, 
 t is employed io contradistinction to the jus 
 abutendi. 3 TouUier, u. 86. 
 
 JUSTICE. The constant and perpetual 
 disposition to render every man his due. 
 Justinian, Inst. b. 1, tit. 1 ; Co. 2d Inst. 56. 
 The conformity of our actions and our will to 
 the law. TouUier, Droit Civ. Fr. tit. pr61. 
 n. 5. 
 
 Commutative justice is that virtue whose 
 object it is to render to every one what be- 
 longs to him, as nearly as may be, or that 
 which governs contracts. To render com- 
 mutative justice, the judge must make an 
 equality between the parties, that no one may 
 be a gainer by another's loss. 
 
 Distributive justice is that virtue whose 
 object it is to distribute rewards and punish- 
 ments to each one according to his merits, 
 observing a just proportion by comparing one 
 person or fact with another, so that neitlier 
 equal persons have unequal things nor un- 
 equal persons things equal. Tr. of Eq. 3 ; 
 and Touillier's learned note, Droit Civ. Fr. 
 tit. pr6I. n. 7, note. 
 
 In the most extensive sense of the word, it dif- 
 fers little from virtue; for it includes within 
 itself the whole circle of virtues. Tet the com- 
 mon distinction between them is, that that which 
 considered positively and in itself is called vir- 
 tue, 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. 
 
 TouUier exposes the want of utility and exact- 
 ness in this division of distributive and commu- 
 tative justice, adopted in the compendium or 
 abridgments of the ancient doctors, and prefers 
 the divisions of internal and external justice, — 
 the first being a conformity of our wiU, 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 moralty. Droit Civ. Fr. 
 tit. pril. n. 6 et 7. 
 
 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 in- 
 cludes all the other rules of right, there is prop- 
 erly but one single general rule of right, namely : 
 Give every one hie own. 
 
 In Norman French. Amenable to jus- 
 tice. Kelham, Diet. 
 
 In Feudal Law. Feudal jurisdiction, 
 divided into high {alta justitia), and low 
 (^simplex inferior justitia), the former being 
 a jurisdiction over matters of life and limb, 
 the latter over smaller causes. Leg. Edw. 
 Conf. c. 26 ; Du Cange. Sometimes high, low, 
 and middle justice or jurisdiction were dis- 
 tinguished. 
 
 An assessment, Du Cange; also, a judicial 
 fine, Du Cange. 
 
 At Common La'w. A title given in Eng- 
 land and America to judges of common-law 
 courts, being a translation of justitia, which 
 was anciently applied to common-law judges, 
 while judex was applied to ecclesiastical 
 judges and others ; e. g. judex Jiscalis. Leges 
 Hen. I. §§ 24, 63 ; Anc. Laws & Inst, of Eng. 
 Index ; Co. Litt. 71 b. 
 
 The judges of king's bench and common 
 pleas, and the judges of almost all the su- 
 preme courts in the United States, are pro- 
 perly styled "justices." 
 
 The term justice is also applied to the low- 
 est judicial officers : e.g.&. trial justice ; a jus- 
 tice of the peace. 
 
 JUSTICE AYRES. In Scotch Law. 
 
 The circuits through the kingdom made for 
 the distribution of justice. Erskine, Inst. 1. 
 3. 25. 
 
 JUSTICE OF THE PEACE. A public 
 officer invested with judiciiil powers for the 
 purpose of preventing breaches of the peace 
 and bringing to punishment those who have 
 violated the law. 
 
 These officers, under the constitution of 
 some of the states, are appointed by the 
 executive ; in others, they are elected by 
 the people and commissioned by the execu- 
 tive. In some states they hold their office 
 during good behavior ; in others, for a limited 
 period. 
 
 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 offisnder, or 
 command others to do so, and, in order to 
 prevent the riotous consequences of a tumult- 
 uous assembly, they may command others to 
 arrest affrayers when the afiray 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 ofl'ence 
 has been committed, and that the person 
 charged is the offender or there is probable 
 cause to believe that he has committed the 
 offence. 
 
 The constitution of the United States di- 
 rects that "no warrants shall issue but upon 
 probable cause, supported by oath or affirma- 
 tion." Amendm. IV. After his arrest, the 
 person charged is brought before the justice 
 of the peace, and after hearing he is dis- 
 charged, held to bail to answer to the com- 
 plaint, or, for want of bail, committed to 
 prison. 
 
 In some of the United States, justices of 
 the peace have jurisdiction in civil cases given 
 to them by local regulations. In Pennsylva- 
 nia, their jurisdiction extends only to one 
 hundred dollars, in cases of contracts, express 
 or implied; under the constitution of 1873, 
 police magistrates have been provided for 
 Philadelphia. 
 
JUSTICES COURTS 
 
 32 
 
 JUSTIFICATION 
 
 See, generally, Burn, Just. ; Graydon, 
 Just. ; Bache, Man. of a Just, of the Peace ; 
 Comyn, Dig. ; 15 Viner, Abr. 3 ; Bacon, 
 Abr.; 2 Sell. Pr. 70; 2 Phill. Ev. 239; 
 Chitty, Pr. ; Davis, Just. 
 
 JUSTICES COURTS. In American 
 LavB-. Inferior tribunals, with limited juris- 
 diction, both civil and criminal. There are 
 courts so called in the states of Massachusetts 
 and New .Hampshire, and probably other 
 states. 
 
 JUSTICES IN EYRE. 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 king- 
 dom once in seven years, lor the purpose of try- 
 ing 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 ordowei, ">r 
 of general gaol delivery, and the like. 3 Bla. 
 Com. 58; Crabb, Eng. Law, 103-104. 
 
 JUSTICES OP THE PAVILION (jus- 
 iiciarii pavilionis). Certain judges of a pye- 
 pouder court, of a most transcendent jurisdic- 
 tion, authorized by the bishop of Winchester, 
 at a fair held at St. Giles Hills near that city, 
 by virtue of letters-patent granted by Edw. 
 IV. Prynne's Animadv. on Coke's 4th Inst, 
 fol. 191. 
 
 JUSTICES OP TRAIL BASTION. 
 
 A sort of justice in eyre, with large and sum- 
 mary powers, appointed by Edw. I. during 
 his absence in war. Old. N. B. fol. 62; 12 
 Co. 25. For derivation, see Cowel. 
 
 JUSTICIAR, JUSTICIER. In Old 
 English Law. A judge or justice. Baker, 
 fol. 118; Cron. Angl. One of several per- 
 sons learned in the law, Tvho sat in the aula 
 regis, and formed a kind of court of appeal 
 in cases of difficulty. 
 
 The chief justiciar (capitalis justiciarius 
 tntius Anglim) was a special magistrate, who 
 presided over the whole aula regis, who was 
 the principal minister of state, the second 
 man in the kingdom, and by virtue of his 
 office guardian of the realm in the king's 
 absence. 3 Bla. Com. 37 ; Spelman, Gloss. 
 330, 331, 332 ; 2 Hawk. PI. Cr. 6. The last 
 who bore this title was Philip Basset, in the 
 time of Hen. III. 
 
 JUSTICIARII ITINERANTES 
 
 (Lat.). In English La-w. Justices who 
 formerly went from county to county to ad- 
 minister justice. They were usually called 
 justices in eyre, to distinguish them from 
 justices residing at Westminster, who were 
 caWeAjusticii residentes. Co. Litt. 203. 
 
 JUSTICIARII RESIDENTES (Lat.). 
 In English Law. Justices or judges who 
 usually resided in Westminster: they were 
 so called to distinguish them from justices in 
 eyre. Co. Litt. 293. 
 
 JUSTICIARY. Another name for a 
 judge. In Latin, he was called justiciarius, 
 and in French, /usiicier. Not used. Bacon, 
 Abr. Courts {A). 
 
 JUSTICIES (from verb juMiciare, 2d 
 pers. pres. subj., do you do justie"o). _ 
 
 In English Lavy. A special writ, in the 
 -nature of a commission, empowering a sheriff 
 to hold plea in his county court of a cause 
 which he could not take jurisdiction of with- 
 out this writ : e. g. trespass i4 et armis for any 
 sum, and all personal actions above forty shil- 
 lings. 1 Burn, Just. 449. So called from the 
 Latin vrard. justicies, used in the writ, which 
 runs, "prcecipimus tibi quod justicies A B," 
 etc. ; we command you to do A B right, etc. 
 Bracton, lib. 4, tr. 6, c. 13 ; Kitch. 74; Fitzh. 
 N. B. 117; 3 Bla. Com. 3, 6. 
 
 JUSTIPIABLE HOMICIDE. That 
 which is committed with the intention to kill, 
 or to do a grievous bodily injury, under cir- 
 cumstances which the law holds sufficient to 
 exculpate the person who commits it. A judge 
 who, in pursuance of his duty, pronounces 
 sentence of 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 intrusted with 
 its execution. A judge, therefore, who pro- 
 nounces 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 convic- 
 tion of the defendant, is guilty of no offence ; 
 1 Hale, PI. Cr. 496-502. 
 
 Magistrates, or other officers intrusted 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 re- 
 pressed; 4 Bla. Com. 178, 179. 
 
 An officer intrusted 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 
 hebe 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. 
 
 A soldier on duty is justified in committing 
 homicide, in obedience to the command of 
 his office!-, unless the command was some- 
 thing plainly unlawful. 
 
 A private individual will, in many cases, 
 be justified in committing homicide while 
 acting in self-defence. See Dkfence. 
 
 See, generally, Akrest ; Homicide: 4 
 Bla. Com. Mi et seq. ; 1 Hale, PI. Cr 496 
 etseq.; 1 East, PI. Cr. 219; 1 Buss. Cr 
 538; 2 Wash. C. C. 515; 4 Mass. 391: 1 
 Hawk«, 210 ; 1 Coxe, N. J. 424 ; 5 YeW 
 459; 9C. &P. 22. ^' 
 
 JUSTIFICATION. In Pleading. The 
 
 allegation of matter of fact by the defendant 
 
JUSTIFICATION 
 
 33 
 
 JUZGADO 
 
 establishing his legal right to do the act com- 
 plained of by the plaintiff. 
 
 Justification admits the dplng of the act charged 
 as a wrong, but alleges a right to do it on the 
 part of the defendant, thus denying that it is a 
 wrong. Excuse merely shows reasons why the 
 defendant should not malce good the injury 
 which the plaintiff has suffered from some wrong 
 done. See Avowry. 
 
 Trespasses. A warrant, regular on its 
 face, and issued by a court of competent 
 jurisdiction, is a complete justification to the 
 officer to whom it is dir^'ted for obeying its 
 command, whether it be really valid or not. 
 But where the warrant is absolutely void, or 
 apparently irregular in an important respect, 
 or where the act done is one which is beyond 
 the power conferred by the warrant, it is no 
 justification. See Arrkst ; Trespass. So, 
 too, many acts, and even homicide committed 
 in self-defence, or defence of wife, children, 
 or servants, are justifiable ; see Sblf-De- 
 PENCE ; or m preserving the public peace; 
 see Arrest ; Trespass ; or under a license, 
 express or implied ; 3 Cain*, 261 ; 2 Bail. 
 4 ; 3 McLean, 571 ; see 13 Me. 115 ; including 
 entry on land to demand a debt, to remove 
 chattels; 2 W. & S. 225; 12 Vt. 273; see 
 2 Humphr. 425 ; to ask lodgings at an inn, 
 the entry in such cases being peaceful ; to 
 exercise an incorporeal right; 21 Pick. 272; 
 or for public service in case of exigency, aa 
 pulling down houses to stop a fire ; Year B. 
 13 Hen. VIII. 16 6 ; destroying the suburbs 
 of a city in time of war ; Year B. 8 Edw. 
 IV. 35 b ; entry on land to make fortifica- 
 tions ; or in preservation of the owner's rights 
 of property ; 14 Conn. 255 ; 4 D. & B. 110; 
 7 Dana, 220 ; Wright, Ohio, 333 ; 25 Me. 
 453; 6 Penn. 318; 12 Mete. 53; are jus- 
 tifiable. 
 
 Libel and slander may be justified in a 
 civil action, in some cases, by proving the 
 truth of the matter alleged, and generally by 
 showing that 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 indict- 
 ment, or words of a slanderous nature are 
 uttered in the course of debate in the legisla- 
 ture by a member, or at the bar by counsel 
 when properly instructed by his client on the 
 subject. Comyns, Dig. Pleader. See De- 
 bate ; Slander. 
 
 Matter in justification must be specially 
 pleaded, and cannot be given in evidence un- 
 der the general issue. See License. A 
 plea of justification to an action for slander, 
 oral or written, should state the charge with 
 the same degree of certainty and precision as 
 are required in an indictment. The object of 
 
 the plea is to give the plaintiff, who is in truth 
 an accused person, the means of knowing 
 what are the matters alleged against him. It 
 must be direct and explicit. It must in every 
 respect correspond with, and be as extensive 
 as the charge in, the declaration. 
 
 The justification, however, will be com- 
 plete if it covers the essence of the libel. 
 But it must extend to every part which could 
 by itself form a substantive ground of action. 
 Where the slander consists m an imputation 
 of crime, the plea of justification must con- 
 tain the same degree of precision as is requi- 
 site in an indictment for the crime, and must 
 be supported by the same proof that is re- 
 quired on the trial of such an indictment. 
 It is aperfectly well-established rule that where 
 the charge is general in its nature, yet the 
 plea of justification must state specific in- 
 stances of the misconduct imputed to the 
 plaintiff. And, even for the purpose of avoid- 
 ing prolixity, a plea of justification cannot 
 make a general charge of criminality or mis- 
 conduct, but must s6t out the specific facts in 
 which the imputed offence consists, and with 
 such certainty as to afford the plaintiff an 
 opportunity of joining issue precisely upon 
 tlieir existence. Heard, Lib. & SI. §§ 240- 
 244. See Slander. 
 
 When established by evidence, it furnishes 
 a complete bar to the action. 
 
 In Practice. The proceeding by which 
 bail establish their ability to perform the un- 
 dertaking of the bond or recognizance. 
 
 It must take place before an authorized 
 magistrate; 5 Binn. 461 ; 6 Johns. 124; 13 
 id. 422; and notice must, in general, be 
 given by the party proposing the bail, to 
 the opposite party, of the names of the bail 
 and the intention to justify ; 3 Harr. N. J. 
 603. _ See 3 Halst. 369. 
 
 It is a common provision that bail must 
 justify in double the amount of the recogni- 
 zance if exceptions are taken ; 2 Hill, N. Y. 
 379; otherwise, a justification in the amount 
 of the recognizance is, in general, sufficient. 
 
 It must be made within a specified time, or 
 the persons named cease to be bail ; 1 Cow. 
 64. See Baldw. 148. 
 
 JUSTIFICATORS. A kind of compur- 
 gators, or those who, by oath, justified the 
 innocence or oaths of others as in the case of 
 wagers of law. 
 
 JUSTIFYING BAIL. In Practice. 
 
 The production of bail in court, who there 
 justify themselves against the exception of 
 the plaintiff. See Bail ; Justification. 
 
 JUZGADO. In Spanish Law. The 
 collective number of judges that concur in a 
 decree, and more particularly the tribunal 
 having a single judge. 
 
 Vol. II.— 3 
 
KAIN 
 
 34 
 
 KANSAS 
 
 K. 
 
 KAIN. In Scotch Law. A paj^ment 
 of fowls, etc., reserved in a. lease. It is de- 
 rived from canujn, a word used in ancient 
 grants to signify fowls or animals deliverable 
 By the vassal to his superior as part of the 
 reddendum. Erskine, Inst. 11. 10. 32 ; 2 
 Koss, Lect. 236, 405. 
 
 KANSAS. The name of one of the 
 states of the United States of America. 
 
 The territory of Kansas was organized by an 
 act of congress, dated May 30, 1854. 
 
 The constitution was adopted at Wyandotte, 
 July 39, 1859, and Kansas was admitted into the 
 Union as a state, by an act of congress, approved 
 January 30, 1861. 
 
 The state was carved out of a portion of the 
 Louisiana purchase, and a small portion of the 
 territory ceded to the United States by Texas, 
 and is bounded as follows, to wit : — 
 
 " Beginning at a point on the western boun- 
 dary of the state of Missouri, where the thirty- 
 seventh parallel of north latitude crosses the 
 same ; thence west on said parallel to the twenty- 
 fifth meridian of longitude west from Washing- 
 ton ; thence north on said meridian to the 
 fortieth parallel of latitude ; thence east on said 
 parallel to the western boundary of the state of 
 Missouri ; thence south with the western boun- 
 dary of said state to the place of beginning." 
 
 The portion of Kansas that originally belonged 
 to Texas, is that part of the state lying south of 
 the Arkansas river and west of longitude twenty- 
 three degrees west from Washington. 
 
 Under the constitution, the powers of the state 
 government are divided into three departments, 
 viz.: executive, legislative, and judicial. 
 
 Executive Department. — The executive de- 
 partment consists of a governor, lieutenant- 
 governor, secretary of state, auditor, treasurer, 
 attorney general, and superintendent of public 
 instruction, who are chosen by the electors of 
 the state, at the time and place of voting for 
 members of the legislature, and hold their offices 
 for two years from the second Monday in January 
 next after their election, and until their succes- 
 sors are elected and qualified. 
 
 The secretary of state, lieutenant-governor, 
 and attorney general constitute a board of state 
 canvassers of election, whose duty it is to meet 
 on the second Tuesday of December succeeding 
 each election for state officers, and proclaim the 
 result of such election. 
 
 No member of congress, or oflScer of the state, 
 or of the United States, shall hold the office of 
 governor, except as herein provided. 
 
 In all cases of the death, impeachment, resig- 
 nation, removal, or other disability of the gov- 
 ernor, the power and duties of the ofl[ice, for the 
 residue of the term, or until the disability shall 
 be removed, shall devolve upon the president of 
 the senate. 
 
 The lieutenant-governor shall be president of 
 the senate, and shall vote only when the senate 
 is equally divided. 
 
 The senate shall choose a presidentpro<cmpo)-e, 
 to preside in case of his absence or impeachment, 
 or when he shall hold the office of governor. 
 
 Legislative Department.— The legislative 
 power of this state shall be vested in a house ol 
 representatives and senate. 
 
 The number of representatives Is regulated by 
 law, but shall never exceed one hundred and 
 twenty-five representatives and forty senators. 
 
 A majority of all the members elected to each 
 house, voting in the affirmative, shall be neces- 
 sary to pass any bill or joint resolution. 
 
 No bill shall contain more than one subject, 
 which shall be clearly expressed In its title, and 
 no law shall be revived or amended, unless the 
 new act contain the entire act revived, or section 
 or sections amended, and the section or sections 
 60 amended shall be repealed. 
 
 All laws of a general nature shall have a uni- 
 form operation throughout the state ; and in all 
 cases where a general law can be made applicable, 
 no special law Shall be enacted. 
 
 The legislature may confer upon tribunals 
 transacting the county business of the several 
 counties, such powers of local legislation and 
 administration as it shall deem expedient. 
 
 For any speech or debate in either house, the 
 members shall not be questioned elsewhere. No 
 member of the legislature shall be subject to ar- 
 rest, except for felony or breach of the peace, in 
 going to or returning from the place of meeting, 
 or during the continuance of the session ; neither 
 shall he be subject to the service of any civil pro- 
 cess during the session, nor for fifteen days pre- 
 vious to Its commencement. 
 
 All sessions of the legislature shall be held at 
 the state capital, and, beginning with the session 
 of eighteen hundred and seventy-seven, all 
 regular sessions shall be held once in two years, 
 commencing on the second Tuesday of January 
 each alternate year thereafter. 
 
 The house of representatives has the sole power 
 to impeach. All impeachments are tried by the 
 senate. No person shall be convicted without 
 the concurrence of two-thirds of the senators 
 elected. 
 
 Judicial Department. — The judicial power 
 of this state is vested in a supreme court, district 
 courts, probate courts, justices of the peace, and 
 such other courts, inferior to the supreme court, 
 as may be provided by law. 
 
 The supreme court consists of one chief justice 
 and two associate justices, who are elected by the 
 electors of the state at large, and whose term of 
 office, after the first, shall be six years. At the 
 first election a chief justice shall be chosen for 
 six years, one associate justice for four years, 
 and one for two years. 
 
 The supreme court has original jurisdiction in 
 proceedings in quo warranto, mandamus, and ha- 
 beas corpus; and such appellate jurisdiction as 
 may be provided by law. 
 
 The state is divided into five judicial districts, 
 in each of which there Is elected a district judge, 
 who holds his office for four years. 
 
 The district courts have such jurisdiction in 
 their respective distrJtts as may be provided by 
 law. 
 
 There is a probate court in each county, which 
 is a court of record and has such probate juris- 
 diction and care of estates of deceased persons, 
 minors, and persons of unsound mind, as may 
 
KANSAS 
 
 35 
 
 KEEPING HOUSE 
 
 be prescribed by law, and shall have jurisdiction 
 in cases of habeas corpus. This court consists of 
 one judge, who is elected and holds his office for 
 two years. 
 
 Two justices of the peace are elected in each 
 township. 
 
 Justices of the supreme court and judges of 
 the district courts may be removed from office by 
 resolution of both houses, if two-thirds of the 
 members of each house concur, but no such re- 
 moval shall be made except upon complaint, the 
 substance of which shall be entered upon the 
 journal, nor until the party charged shall have 
 had notice and opportunity to be heard. 
 
 JSHeetions. — All elections by the people shall be 
 by ballot, and all elections by the legislature 
 shall be viva voce. 
 
 Suffrage. — Every person who shall give or ac- 
 cept a challenge to fight a duel, or who shall, 
 knowingly, carry to another person such chal- 
 lenge, or shall go out of the state to fight a duel, 
 shall be ineligible to any office of trust or profit. 
 
 Every person who shall have given or oflFered 
 a bribe to procure his election, shall be disquali- 
 fied from holding office during the term for 
 which he may have been elected. 
 
 Education,. — The legislature shall encourage 
 the promotion of intellectual, moral, scientific, 
 and agricultural improvement, by establishing a 
 uniform system of common schools and schools 
 of a higher grade, embracing normal, prepara- 
 tory, collegiate, and university departments. 
 
 No religious sect or sects shall ever control 
 any part of the common school or university 
 funds of the state. 
 
 Corporations.^The legislature shall pass no 
 special apt conferring corporate powers. Cor- 
 porations may be created under general laws ; 
 but such laws may be amended or repealed. 
 
 The term corporation, as used in this article, 
 includes all associations and joint stock compa^ 
 nies having powers and privileges notpossessed by 
 individuals or partnerships ; and all corporations 
 may sue and be sued in their corporate name. 
 
 iFiaeeUaneous. — Lotteries and the sale of lot- 
 tery tickets are forever prohibited. 
 
 The legislature shall provide for the protection 
 of the rights of women in acquiring and possess- 
 ing property, real, personal, and mixed, and sepa- 
 rate and apart from the husband ; and shall also 
 provide for their equal rights in the possession of 
 their children. 
 
 A homestead to the extent of one hundred and 
 sixty acres of farming land, or of one acre with- 
 in the limits of an incorporated town or city, oc- 
 cupied as a residence by the family of the owner, 
 together with all the improvements on the same, 
 is exempted from forced sale, and shall not be 
 alienated without the joint consent of husband 
 and wife, when that relation exists ; but no 
 property shall be exempt from sale for taxes, or 
 for the payment of obligations contracted for the 
 purchase of said premises, or for the erection of 
 Improvements thereon ; Provided, the provisions 
 of this section shall not apply to any process of 
 law obtained by virtue of a lieu given by the 
 consent of both husband and wife. 
 
 The manufacture and sale of intoxicating liq- 
 uors shall be forever prohibited in this state, ex- 
 cept for medical, scientific, and mechanical pur- 
 poses. 
 
 No distinction shall ever be made between 
 citizens and aliens in reference to the purchase, 
 enjoyment, or descent of property. 
 
 There are no common law crimes in this state. 
 All crimes are defined and punished by statute. 
 
 The common law, as modified by constitutional 
 
 and statutory law, judicial decisions, and the 
 conditions and wants of the people, shall remain 
 in force in aid of the general statutes In this 
 state ; but the rule of the common law, that 
 statutes in derogation thereof shall be strictly 
 construed, .shall not be applicable to any general 
 statute in this state, but all such statutes shall 
 be liberally construed to promote their object. 
 
 " The body of the laws of England as they ex- 
 isted in the fourth year of the reign of James I. 
 (1607) constitutes the common law of this 
 state;" 9 Kan. 252. 
 
 KEEIiAGE. The right of demanding 
 money for the bottom of ships resting in a 
 port or harbor. The money so paid is also 
 called keelage. 
 
 KEELS. This word is applied, in Eng- 
 land, to vessels employed in the carriage of 
 coals. Jacob, Law Diet. 
 
 KEEP. 
 
 Neither a single act of play at a gamingtable, 
 called a sweat cloth, at the races, nor even a 
 single day's use of it on the race field, is a keep- 
 ing of a common gaming table, within the Peni- 
 tentiary Act for the District of Columbia ; 4 Cr. 
 C. C. 6591 When it is said that a certain man 
 keeps a woman, the popular inference is, that the 
 relation is one which involves Illicit Intercourse ; 
 36 Ala. 717. See 3 Allen, 101 ; 52 N. H. 368. 
 
 KEEPER. 
 
 To warrant the conviction of one as the keeper 
 of a common gaming house, Jie need not be the 
 proprietor or lessee ; it is sufficient if he has the 
 general superintendence ; 67 III. 587. 
 
 KEEPER OF THE FOREST rcalled, 
 also, the chief warden of the forest). An 
 officer who had the principal government 
 over all officers within the forest, and warned 
 them to appear at the court of justice-seat on a 
 summons from the lord chief-justice in eyre. 
 Manw. For. Law, part 1, p. 156 ; Jacob, 
 Law Diet. 
 
 KEEPER OF THE GREAT SEAL 
 (lord keeper of the great seal) . A judicial 
 officer who is by virtue of his office a lord, 
 and a member of the privy council. Through 
 his hands pass all charters, commissions, and 
 grants of the "crown, to be sealed with the 
 great seal, which is under his keeping. The 
 office was consolidated with that of lord chan- 
 cellor by 5 Eliz. c. 18; and the lord chan- 
 cellor is appointed by delivery of the great 
 seal, and taking oath. Co. 4th Inst. 87 ; 1 
 Hale, PL Cr. 171, 174; 3 Bla. Com. 47. 
 
 KEEPER OF THE PRIVY SEAL. 
 
 The officer through whose hands go all char- 
 ters, pardons, etc. signed by the king before 
 going to the great seal, and some which do 
 not go there at all. He is of the privy council 
 virtute officii. He was first called clerk of 
 'the privy seal, then guardian, then lord privy 
 seal, which is his present designation. 1 2 Ric. 
 11. c. 12; Rot. Pari. 11 Hen. IV. ; Stat. 34 
 Hen. VIII. c. 4 ; 4 Inst. 55 ; 2 Bla. Com. 
 347. 
 
 KEEPING HOUSE. In English Law. 
 As an act of bankruptcy, is when a man absents 
 himself from his place of business and retires to 
 his private residence, so as to evade the impor- 
 
KEEPING OPEN 
 
 36 
 
 KENTUCKY 
 
 tunity of creditors. The usual evidence of 
 " keeping house" is denial to a creditor who has 
 called for money. Robson, Bkcy. ; 6 Bing. 363. 
 
 KEEPING OPEN. 
 
 A statute prohibiting shops to be kept open on 
 Sunday is violated where one allows general 
 access to his shop for purposes of traffic, though 
 the outer entrances are closed ; 11 Gray, 308 ; 
 16 Mich. 472. 
 
 KEEPING TERM. In English Law. 
 A duty performed by students of law, con- 
 sisting in eating a sufficient number of din- 
 ners in hall to make the term count for the 
 purpose of being called to the bar ; Moz. & W. 
 
 KENNING TO THE TERCE. In 
 Scotch Law. The ascertainment by a 
 sheriff of the just proportion of the husband's 
 lands which belongs to the widow in virtue of 
 her terce or third. An assignment of dower 
 by sheriff. Erskine, Inst. 11. 9. 60 ; Bell, 
 Diet. 
 
 KENTLEDGE, or KINTLEDGE. The 
 permanent ballast of a ship. Ab. Sh. 6. 
 
 KENTTTCKT. The name of one of the 
 states of the United States of America. 
 
 This state was formerly a part of Virginia, 
 which by an act of its legislature, passed Decem- 
 ber 18, 1789, consented that the district of Ken- 
 tucky within the jurisdiction of the said com- 
 mbnwealth, and according to its actual bound- 
 aries at the time of passing the act aforesaid, 
 should be formed into a new state. By the act 
 of congress of February, 1791, 1 Story, Laws, 
 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 admit- 
 ted into this Union, as a new and entire member 
 of the United States of America. 
 
 The present constitution of this state was 
 adopted June 11, 1850. The powers of govern- 
 ment are divided into three distinct departments, 
 each of them confided to a separate body of 
 magistracy, the legislative, the executive, and the 
 judicial. * 
 
 Legislative Depaktment. — The legislative 
 power is vested in two branches; a house of 
 representatives and a senate, which together 
 constitute the general assembly of the common- 
 wealth of Kentucky. The house of representa- 
 tives cousists of one hundred members. Eepre- 
 Bentatives are elected for a term of two years on 
 the first Monday in August in every second year 
 beginning with 1851, and must have attained the 
 age of twenty-four years, and have resided in 
 the state two years preceding the election, the 
 last year thereof in the county, town, or city for 
 which they are chosen. Voters for representa- 
 tive shall be male citizens of the age of twenty- 
 one years, who have resided in the state two 
 years, or in the county, town, or city one year 
 next preceding the election. 
 
 The senate consists of thirty-eight senators, 
 who are elected for a term of four years. Upon 
 its first session under this constitution in 1851, 
 the senators then elected were divided by lot into 
 two classes. The seats of the first class became 
 vacant at the end of two years, so that half of 
 the senate is chosen every second year. Sena- 
 
 tors must be citizens of the United States, of the 
 age of thirty years, and have resided in the state 
 six years preceding the election, the last year 
 thereof in the district for which they are chosen. 
 The general assembly convenes at the seat of 
 government, which is at the town of Frankfort, 
 in Franklin county. 
 
 Executive Depaktment. — The executive 
 power is vested in the chief magistrate, who is 
 styled the governor of the commonwealth of 
 Kentucky. He is elected for a term of four 
 years by the qualified voters of the state, and is 
 ineligible for the succeeding four years after the 
 expiration of the term for which he shall have 
 been elected. He must be at least thirty-five 
 years of age, a citizen of the United States, and 
 must have been an inhabitant of the state six 
 years next preceding his election. No member 
 of congress, or person holding any office under 
 the United States, or minister of any religious 
 society, is eligible to this office. The governor 
 is commander-in-chief of the army and navy of 
 the commonwealth, and its militia, except when 
 they shall be called into the service of the United 
 States. He has power to remit fines and forfeit- 
 ures, grant reprieves and pardons, except in cases 
 of impeachment. In cases of treason, he has 
 power to grant reprieves until the end of the 
 next session of the general assembly. He may, 
 on extraordinary occasions, convene the general 
 assembly, and in case of a disagreement between 
 the two houses with respect to the time of ad- 
 journment, he may adjourn them to such time 
 as he shall think proper, not exceeding four 
 months. " He shall take care that the laws are 
 faithfully executed." 
 
 A lieutenant-governor is chosen at every regu- 
 lar election for governor in the same manner and 
 for the same term . He must have the same qualifi- 
 cations, and he is, by virtue of his office, speaker 
 of the senate ; has a right in committee of the 
 whole to debate and vote on all subjects, and 
 when the senate is equally divided, to give the 
 casting vote. Should the governor be im- 
 peached, removed from office, die, refuse to 
 qualify, resign, or be absent from the state, the 
 lieutenant-governor shall exercise all the power 
 and authority appertaining to the oflice of gov- 
 ernor, or until another be duly elected and quali- 
 fied, or the governor, if absent or Impeached, 
 shall retura or be acquitted. 
 
 The governor has power to return bills which 
 have passed the general assembly, to the house 
 in which they originated, with his objections 
 thereto, which are to be entered upon its journal, 
 and such house shall then proceed to reconsider 
 the bill, and if, after such reconsideration, a ma- 
 jority of all the members elected to that house 
 agree to pass the bill, it shall be sent to the other 
 house with the objections, and there be likewise 
 considered, and if approved by a majority of all 
 the members elected to that house, it shall be a 
 law, but the votes of both houses must be de- 
 termined by yeas and nays, and the names of the 
 members voting for and against the bill entered 
 in the journal. Any bill not returned by the 
 governor within ten days (Sundays exceptecl), 
 after it shall have been presented to him, shall 
 become a law, as if he had signed It, unless the 
 general assembly by their adjourninent prevent 
 its return, in which case it shall be a law unless 
 sent back within three days after the next meet- 
 ing of the legislature. Every order, resolution, 
 or vote, in which the concurrence of both houses 
 may be necessary, except on a question of ad- 
 jourment, shall be presented to the governor and 
 be approved by him before it shall take effect, 
 or, being disapproved, shall be repassed as be- 
 
KEY 
 
 87 
 
 KING 
 
 fore provided. Contested elections for govertfcr 
 and lieutenant-governor shall be determined by 
 both houses of the general assembly, according 
 to such regulations as may be established by law. 
 
 Judicial Department. — The judicial power 
 of the commonwealth, both as to matters of 
 law and equity, is vested in one supreme court, 
 styled the court of appeals, and such courts, in- 
 ferior to the supreme court, as the general assem- 
 bly may from time to time recommend and 
 establish. The court of appeals consists of four 
 judges, who hold their ofifices eight years and 
 until their successors are duly qualified, but for 
 any reasonable cause the goveimor shall remove 
 any of them on the address of two-thirds of 
 each house of the general assembly. The judges 
 are elected ; and for the purpose of electing 
 judges the state is by law divided into four dis- 
 tricts, in each of which the qualified voters elect 
 one judge of the court of appeals. One judge 
 Is elected every two years. A judge of this 
 court must be a citizen of the United States, and 
 resident in the district for which he may be a 
 candidate two years next preceding his election. 
 He must be at least thirty years of age, and have 
 been a practising lawyer or a practising lawyer 
 and judge for eight years. 
 
 The inferior courts consist of circuit courts of 
 general jurisdiction, having cognizance of suits 
 both at common law and equity and of criminal 
 cases, but in some circuits the common law ju- 
 risdiction is vested in courts of common pleas, 
 and the equity jurisdiction in chancery courts. 
 
 In each county there is a county court with 
 probate jurisdiction, and appellate jurisdiction 
 of certain minor appeals from magistrates. The 
 county court is, at stated times, organized as a 
 levy court, composed of the presiding judge of 
 the county court and the magistrates of the 
 county, which has the power of a local legisla- 
 ture for county matters. 
 
 There are also justices of the peac^. All 
 judges are elected for terms provided by law, by 
 the qualified voters of the district in which they 
 hold office. 
 
 KEY. An instrument made for shutting 
 and opening a lock. 
 
 The keys of a house are considered as real 
 estate, and descend to the heir with the in- 
 heritance ; 11 Co. 50 6 ; 30 E. L. & Eq. 598. 
 See 5 Blackf. 417; 5 Taunt. 518. 
 
 When the keys of a warehouse are deliv- 
 ered to a purchaser of goods locked up there, 
 with a view of effecting a delivery of such 
 goods, the delivery is complete. The doctrine 
 of the civil law is the same ; Dig. 41. 1. 9. 6 ; 
 18. 1. 74. 
 
 Keys are implements of housebreaking 
 within statute 14 & 15 Vict. c. 19, § 1 ; for^ 
 though commonly used for lawful purposes, 
 they are capable of being employed for pur- 
 poses of housebreaking ; and it is a question 
 for the jury whether the person found in pos- 
 session of them by night had them without 
 lawful excuse, with the intention of using 
 them as implements of housebreaking; 2 Den. 
 Cr. Cas. 472 ; 3 C. & K. 250. 
 
 KEYAGB. A toll paid for loading and 
 unloading merchandise at a key or wharf. 
 
 KEYS. In the Isle of Man are the twenty- 
 four chief commoners, who form the local 
 legislature. 1 Steph. Com. 99. 
 
 KIDNAPPING. The forcible abduction 
 or stealing away of a man, woman, or child 
 from their own country and sending them into 
 another; 4 Bla. Com. 219. At common law 
 it is a misdmeanor ; Comb. 10. 
 
 There is no wide difference in meaning be- 
 tween kidnapping, false imprisonment, and 
 abduction. The better view seems to be that 
 kidnapping is a false imprisonment, which it 
 always includes, aggravated by the carrying 
 of the person to some other place ; 2 Bish. 
 Cr. L. §§ 750-756. It has been held that 
 transportation to a foreign country is not neces- 
 sary, though this conflicts with Blacksfcohe's 
 definition, supra ; 8 N. H. 550 ; see 1 East, 
 P. C. 429. The consent of a mature person of 
 sound mind prevents any act from being kid- 
 napping; otherwise as to a young child: a 
 child of nine years has been held too young 
 to render his consent available as a defence ; 
 41 N. H. 53; 5 Allen, 518; Thach. Cr. Cas. 
 488. Physical force need not be applied. 
 The crime may be effected by means of 
 menaces; 20 111. 315; or by getting a man 
 drunk; 25 N. Y. 373. Where the custody 
 of a child is assigned to one of two divorced 
 parents, and the other, or a third person em- 
 ployed for the purpose, carries it off, it is 
 kidnapping; 41 N. H. 53; 5 Allen, 518. 
 New York, Illinois, and ether states, have 
 passed statutes on kidnapping. See Abduc- 
 tion; 1 Kuss. Cr. 962; 3 Tex. 282; 12 
 Mete. 56 ; 2 Park. Cr. Ca. 590. 
 
 It has been held, however, that the carry- 
 ing away is not essential ; 8 N. H. 550. The 
 crime includes a false imprisonment ; 2 Bishop, 
 Crim. Law, § 671. See Abduction ; 1 Russ. 
 Cr. 716 ; 2 Harr. Del. 538 ; 3 Tex. 282 ; 12 
 Mete. 56. 
 
 Kidnapping Act, 1872. The stat. 35 & 
 36 Vict. c. 19, for the prevention and pun- 
 ishment of criminal outrages upon natives of 
 the islands of the Pacific ocean. Amended 
 by the 38 & 39 Vict. c. 51. 
 
 KILDERKIN. A measure of capacity, 
 equal to eighteen gallons. 
 
 KIN. Legal relationship. 
 
 KINDRED. Itelations by blood. This 
 properly includes only legitimate kindred ; 1 
 Bla. Com. 459; 38 Me. 153. 
 
 Nature has divided the kindred of every one 
 into three principal classes. 1. His children, 
 and their descendants. 2. His father, mother, 
 and other ascendants. 3. His collateral rela- 
 tione ; which Include, in the first place, his 
 brothers and sisters, and their descendants ; and, 
 secondly, his uncles, cousins, and other relations 
 of either sex, who have not descended from a 
 brother or sister of the deceased. All kindred, 
 then, are descendants, ascendants, or collaterals. 
 A husband or wife of the deceased, therefore. Is 
 not his or her kindred ; 14 Ves. 372. See Wood. 
 Inst. 50 ; Ayliffe, Parerg. 325 ; Dane, Abr. ; Toul- 
 lier, Ex. 382, 383 ; 2 Sharsw. Bla. Com. 516, n. ; 
 Pothier, Des Successions, c. 1, art. 3. 
 
 KING. The chief magistrate of a king- 
 dom, vested usually with the executive power. 
 
 The following table of the reigns of Eng- 
 lish and British kings and qeeens is added, to 
 
KING CAN DO NO WRONG 
 
 38 
 
 KNIGHT 
 
 assist the student in many points of chro- 
 nology : — 
 
 AcceBsion, 
 
 "William 1 1066 
 
 William II 1087 
 
 Henry 1 1100 
 
 Stephen 1135 
 
 Henry II 1154 
 
 Richard 1 1189 
 
 John 1199 
 
 Henry III 1216 
 
 Edward 1 1278 
 
 Edward II 1307 
 
 Edward III 1326 
 
 , Richard II 1377 
 
 Henry IV 1399 
 
 Henry V 1413 
 
 Henry VI 1433 
 
 Edward IV 1461 
 
 Edward V 1483 
 
 Richard III 1483 
 
 Henry VII 1485 
 
 Henry VIII 1509 
 
 Edward VI 1547 
 
 Mary 1553 
 
 Elizabeth 1558 
 
 James 1 1603 
 
 Charles 1 1635 
 
 Charles II 1649 
 
 James II 1685 
 
 William and Mary .... 1689 
 
 William III 1695 
 
 Anne 1703 
 
 George 1 1714 
 
 George II 1737 
 
 George III 1760 
 
 George IV 1820 
 
 William IV 1830 
 
 Victoria . 1837 
 
 KING CAN DO NO WRONG. 
 
 This maxim means that the king is not re- 
 sponsible legally for aught he may please to do, 
 or for any omission. Aust. Jur. sect. VI. It 
 does not mean that everything done by the 
 government Is just and lawful, but that what- 
 ever is exceptionable in the conduct of public 
 affairs is not to be imputed to the king ; 3 Steph. 
 Com. 478; Moz. &W. 
 
 This maxim has no place in the system of 
 constitutional law of the United States, as appli- 
 cable either to the government or any of its 
 officers. Our government is not liable for the 
 wrongful and unauthorized acts of its officers, 
 however high their place, and though done 
 under a mistaken zeal for tBe public good ; 21 Alb. 
 L. Jour. 397 ; 3 Wall. 561 ; 7 id. 132; 8 id. 269. 
 
 KING'S BENCH. See Court of 
 King's Bench. 
 
 KING'S or QUEEN'S COUNSEL. 
 Barristers or Serjeants who have been called 
 within the bar and selected to be the king's 
 counsel. They answer in some measure to the 
 advocati Jlsci, or advocates of the revenue, 
 among the Romans. They must not be em- 
 ployed against the crown without special 
 leave, which is, however, always granted, at 
 a cost of about nine pounds. B Sliarsw. Bla. 
 Com. 27, note. 
 
 KING'S EVIDENCE. An accomplice 
 in a felony, who, on an implied promise of 
 pardon if he fully and fairly discloses the 
 truth, is admitted as evidence for the crown 
 against his accomplices. 1 Phill. Ev. 81. 
 A jury may, if they please, convict on the 
 
 unsupported testimony of an accomplice; 
 
 4 Steph. Com. 398. On giving a full and 
 fair confession of truth, the accomplice has 
 an equitable title to a recommendation to 
 mercy. He cannot be admitted to testify as 
 king's evidence after judgment against him ; 
 2 Buss. Cri. 956-958. In the United States, 
 this is known as state's evidence. 
 
 KING'S SILVER. A fine or payment 
 due to the king for leave to agree in order to 
 levying a fine (^Jinalis concordia). 2 Bla. 
 Com. 350; Dy. 320, pi. 19; 1 Leon. 249, 
 250; 2 id. 56, 179, 233, 234; 5 Coke, 39. 
 
 KINGDOM. A country where an ofiieer 
 called a king exercises the powers of govern- 
 ment, whether the same be absolute or 
 limited. Wolfi". Inst. Nat. § 994. In some 
 kingdoms, the executive officer may be a 
 woman, who is called a queen. 
 
 KINSBOTE (from kin, and bote, a com- 
 position). In Saxon Lavr. A composition 
 for killing a kinsman. Anc. Laws & Inst, of 
 Eng. Index, Bote. 
 
 KIRBY'S QUEST. An ancient record 
 remaining with the remembrancer of the 
 English exchequer ; so called from being the 
 inquest of John de Kirby, treasurer to Ed- 
 ward I. 
 
 KISSING THE BOOK. A ceremony 
 used in taking the corporal oath, the object 
 being, as the canonists say, to denote the as- 
 sent 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 ex- 
 plained in Oughton's Ordo, tit. Ixxx. ; Consitt. 
 on Courts, part 3, sect. 1, § 3 ; Junkin, Oath, 
 173, 180; 2 Pothier, Obi. Evans ed. 234. 
 
 KNAVE. A false, dishonest, or deceitful 
 person. This signification of the word has 
 arisen by a long perversion of its original 
 meaning, which was merely servant or at- 
 tendant. 
 
 To call a man a knave has been held to be 
 actionable ; 1 RoUe, Abr. 52 ; 1 Freem. 277 : 
 
 5 Pick. 244. 
 
 KNIGHT. In English Law. The next 
 personal dignity after the nobility. Of 
 knights there are several orders and degrees. 
 The first in rank are knights of the garter, 
 instituted by Edward III. in 1344 ; next fol- 
 lows, a knight banneret ; then come knights 
 of the bath, instituted by Henry IV., and re- 
 vived by George I. ; and they were so called 
 from a custom of bathing the night before 
 their creation. The last order are knights 
 bachelors, who, though the lowest, are yet 
 the most ancient, order of knighthood; for 
 we find that King Alfred conferred this order 
 upon his son Athelstan. 1 Bla. Com. 403. 
 These are sometimes called knights of the 
 chamber, being such as are made in time 
 of peace, and so called because knighted in 
 the king's chamber, and not in the field 
 Co. 2d Inst. 666. Knights were called equU 
 tes, because they always served on horseback • 
 
KNIGHT'S FEE 
 
 89 
 
 LABOR 
 
 aurati, from the gilt spurs they wore ; and 
 milites, because they formed the royal army, 
 in virtue of their feudal tenures. 
 
 KNIGHT'S PEE was anciently so much 
 of an inheritance in land as was sufficient to 
 maintain a knight ; and every man possessed 
 of such an estate was obliged to be knighted, 
 and attend the king in his wars, or pay a 
 pecuniary sum in lieu thereof, called escuage. 
 In the time of Henry II. the estate was esti- 
 mated at twenty pounds a year ; but Lord 
 ■Coke, in his time, states it to be an estate of 
 six hundred and eighty acres. Co. Litt. 69 a. 
 
 KNIGHT'S SERVICE. Upon the Nor- 
 man conquest, all the lands in England were 
 divided into knight's fees, in number above 
 sixty thousand ; and for every knight's fee, a 
 knight was bound to attend the king in his 
 wars forty days in a year, in which space of 
 time, before war was reduced to a science, a 
 campaign was generally finished. If a man 
 only held half a knight's fee, he was only 
 bound to attend twenty days ; and so in pro- 
 portion. But this personal service, in pro- 
 cess of time, grew into pecuniary commuta- 
 tions, or aids ; until at last, with the military 
 part of the feudal system, it was abolished 
 at the restoration, by the statute of 12 Car. 
 II. c. 24. 1 Bla. Com. 410; 2 id. 62. 
 
 KNOW ALL MEN B7 THESE PRE- 
 SENTS. See Pkbsents. 
 
 KNOWINGLY. In Pleading. The 
 word ' ' knowingly, " or " well knowing, ' ' 
 will supply the place of a positive averment, 
 in an indictment or declaration, that the de- 
 fendant knew the facts subsequently stated ; 
 if notice or knowledge be unnecessarily 
 stated, the allegation may be rejected as sur- 
 plusage. See Comyns, Dig. Indictment (G 
 6) ; 2 Cush. 577 ; 2 Stra. 904 ; 2 East, 452 ; 
 1 Chitty, PI. 367. 
 
 KNOWLEDGE. Information as to a 
 fact. 
 
 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 knowl- 
 edge which makes the crime. 
 
 Such guilty knowledge is made by the 
 statute a constituent part of the ofi'ence ; and 
 therefore it must be averred and proved as 
 such. But it is in general true, and may be 
 considered as a rule almost necessary to the 
 restraint and punishment of crimes, that 
 when a man does that which by the common 
 law or by statute is unlawful, and in pursuing 
 his criminal purpose does that which consti- 
 tutes another and different offence, he shall 
 be held responsible for all the legal conse- 
 quences of such criminal act. When a man, 
 without justifiable cause, intends to wound or 
 maim another, and in doing it kills him, it is 
 murder, though he had no intention to take 
 life. It is true that in the commission of all 
 crimes a guilty purpose, a criminal will and 
 motive, are implied. But, in general, such 
 bad motive or criminal will and purpose, 
 that disposition of mind and heart which is 
 designated by the generic and significant term 
 "malice," is implied from the criminal act 
 itself. But if a man does an act, which 
 would be otherwise criminal, through mistake 
 or accident, or by force or the compulsion of 
 others, in which his own will and mind do not 
 instigate him to the act or concur in it, it is 
 matter of defence, to be averred and proved 
 on his part, if it does not arise out of the cir- 
 cumstances of the case adduced on the part 
 of the prosecution. Per Shaw, C. J., in 2 
 Mete. Mass. 192. Thus, it is not necessary, 
 in an indictment against an unmarried man 
 for adultery with a married woman, to aver 
 that he knew, at the time when the offence 
 was committed, that she was a married 
 woman ; nor is it necessary to prove such 
 knowledge at the trial. 2 Mete. Mass. 190. 
 See, as to the proof of guilty knowledge, 1 
 B. & H. Lead. Cr. Cas. 185-191. See In- 
 tention ; Ignorance or Lavs'. As to the 
 doctrine of imputed knowledge, see Notice. 
 
 L. 
 
 LABEL. A slip of ribbon, parchment, 
 or paper, attached to a deed or other writing 
 to hold the appended seal. 
 
 In the ordinary use of the word, it is a slip 
 of paper attached to articles of manufacture 
 for the purpose of describing them or specify- 
 ing their quality, etc., or the name of the 
 maker. The use of a label has been distin- 
 guished from a trade mark proper ; Browne, 
 
 Trade Marks, §§ 133, 537, 538. The use of 
 labels will be protected by a court of equity 
 under some circumstances ; id. 538. A copy 
 of a writ in the Eng. Exch. Tidd, Pr. *156. 
 
 LABOR. Continued operation ; work. 
 
 The labor and skill of one man are frequently 
 used in a partnership, and valued as equal to 
 the capital of another. 
 
 When business has been done for another. 
 
LABORER 
 
 40 
 
 LAIRESITE 
 
 and suit is brought to recover a just reward, 
 there is generally contained in the declaration 
 a count for work and labor. 
 
 Where penitentiaries exist, persons who 
 have committed crimes are condemned to be 
 imprisoned therein at labor. Under an order 
 of court directing a receiver to pay claims for 
 "labor," an attorney who rendered services 
 to the receiver is included ; 8 Report. 579. 
 
 LABORER. A servant in husbandry or 
 manufacture not liwing intra mania ; Whar- 
 ton, Law Die. ; for various acts of parliament 
 aff'ecting the rights and duties of laborers, see 
 id. tit. Labor. 
 
 In Pennsylvania (P. L. 1872, p. 47.), 
 Alabama (Code 1876, sec. 3481), and other 
 states, laborers have a statutory lien for their 
 wages. This applies to those engaged in 
 manual labor; 82 Penn. 149; 84 id. 168; 
 and not to a hotel cook ; 77 id. 107. 
 
 The term has been held to include a super- 
 intendent in charge of laborers employed by 
 a railroad contractor ; 5 How. Pr. 454 ; and 
 a drayman ; 30 N. J. Eq. 688 ; but not an 
 assistant chief engineer on a railroad ; 39 Mich. 
 47 ; s. c. 33 Am. Rep. 348, n. ; nor a con- 
 tractor for building the roadbed of a railroad ; 
 id. 594; nor a superintendent of a mining 
 company; 16 Hun, 186; 17 id. 463; nor a 
 farm overseer ; 81 N. C. 340 ; s. c. 31 Am. 
 Rep. 503 ; nor a consulting engineer ; 38 
 Barb. 390. But an architect is within the 
 mechanics' lien law which extends to those 
 who "perform labor;" 76 N. Y. 50; s. c. 
 32 Am. Rep. 262, n. ; 26 N. J. Eq. 29, 389 ; 
 
 13 Minn. 475 ; contra, 6 Mo. App. 445. 
 
 LABOR A JURV. To tamper with a 
 jury ; to persuade jurymen not to appear. It 
 seems to come from the meaning of labor, to 
 prosecute with energy, to urge : as to labor a 
 point. Dy. 48 ; Hob. 294 ; Co. Litt. 157 6 ; 
 
 14 & 20 Hen. VII. 30, 11. The first lawyer 
 that came from England to practise in Bos- 
 ton was sent back for laboring a jury. Washb. 
 Jud. Hist. 
 
 LACHES (Fr. lacker). Unreasonable 
 delay ; neglect to do a thing or to seek to 
 enforce a right at the proper time. 
 
 When a person has been guilty of unrea- 
 sonable delay in seeking to enforce a right in 
 equity, this circumstance will, in many cases, 
 in equity prejudice his right, or even his 
 remedy. It is said that equity does not en- 
 courage stale claims, nor give relief to those 
 who sleep upon their rights ; 4 Wait, Act. & 
 Def. 472; 9 Pet. 405; 91 U. S. 512, 806. 
 
 Equity will not decree the specific perform- 
 ance of a contract where the person seeking 
 it has been guilty of laches in bringing his 
 bill, nor unless he has shown himself ready, 
 des&ous, prompt, and eager ; 5 Ves. 720 n. ; 
 Fry, Sp. Perf. 422. 
 
 One who seeks to impeach a transaction 
 on the ground of fraud must seek redress 
 promptly ; he must show reasonable diligence. 
 Mere lapse of time will sometimes render a 
 fraudulent transaction unimpeachable ; Kerr, 
 Fraud & Mist. 303 ; 9 Pet. 405. 
 
 In general, when a party has been guilty of 
 laches in enforcing his right by great delay, 
 this circumstance will, at common law, preju- 
 dice and sometimes operate in bar of a remedy 
 which it is discretionary and not compulsory 
 in the court to afford. In courts of equity, 
 and in admiralty, spiritual, and other courts, 
 also, delay will generally prejudice ; 1 Chitty, 
 Pr. 786, and the cases there cited ; 6 Johns. 
 Ch. 360. As laches at law, Chitty refers 
 only to cases of injury to character and feel- 
 ings, to objections to irregularities in le^al 
 proceedings, and to motions for criminal in- 
 formations ; the first is, however, a mere 
 question of fact for the jury, the last two of 
 practice. 
 
 But laches may be excused from ignorance 
 of the party's right; 2 Mer. 362; 2 Ball & 
 B. 104 ; from the obscurity of the transaction ; 
 
 2 Seh. & L. 487 ; by the pendency of a suit ; 
 1 Sch. & L. 413 ; and where the party labors 
 under a legal disability : as, insanity, cover- 
 ture, infancy, and the like. And no laches 
 can be imputed to the public ; 4 Mass. 522 ; 
 
 3 S. & R. 291 ; 4 Hen. & M. 57. See Belt, 
 Suppl. to Ves. 436 ; 2 id. 170. 
 
 LADY'S FRIEND. Previously to the act 
 of 1857 abolishing parliamentary divorces, a 
 functionary 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. H. & W. 213. 
 
 LADY-DAY. The 25th of March, the 
 feast of the Annunciation of the Blessed 
 Virgin Mary. In parts of Ireland, however, 
 they so designate the 15th of August, the 
 festival of the Assumption of the Virgin. 
 
 L.a!SA MAJESTAS (Lat.). Lsse- 
 majesty, or injured majesty; high treason. 
 It is a phrase taken from the civil law, and 
 anciently meant any offence against the king's 
 person or dignity, defined by 25 Edw. III. c. 
 6. See Glanv. lib. 5, c. 2 ; 4 Bla. Com. 75 ; 
 Br. 118; Crimen L^i^SiB Majestatis. 
 
 LiESIONE PIDEI, SUITS PRO, pro- 
 ceedings in the ecclesiastical courts for spiritual 
 offences against conscience, for non-payment 
 of debts, or breaches of civil contracts. This 
 attempt to turn the ecclesiastical courts into 
 courts of equity was checked by the Constitu- 
 tions of Clarendon, A. D. 1164, o. v. 3 Bla. 
 Com. 52 ; Whart. Lex. 
 
 LAGA. The law. 
 
 LAGAN (Sax. liggan, cubare). Goods 
 found at such a distance from shore that it 
 was uncertain what coast they would be car- 
 ried to, and therefore belonging to the finder. 
 Br. 120. See Ligan. 
 
 LAHLSLIT (Sax.). A breach of law. 
 Cowel. A mulct for an offence, viz. : twelve 
 "ores." 1 Anc. Inst. & Laws of Eng. 169. 
 
 LAIRESITE. The name of a fine im- 
 posed upon those who committed adultery or 
 fornication. Tech. Diet. 
 
LAITY 
 
 41 
 
 LAND, LANDS 
 
 IiAITT. Those persons who do not make 
 a part of the clergy. They are divided into 
 three states: 1. Vivil, including all the na- 
 tion, except the clergy, the army and navy, 
 and subdivided into the nobility and the com- 
 monality. 2. Military. S. Maritime, con- 
 sisting of the navy. Whart. Le-t. In the 
 United States the division of the people into 
 clergy and laity is not authorized by kw, but 
 is merely conventional. 
 
 LAKB. A riparian owner of land on a 
 navigable lake does not own any part of the 
 bed, but on a non-navigable lake he takes the 
 bed of the lake ad medium Jilum ; 42 Wise. 
 214, 248 i 4.5 Vt. 215 ; 58 Ind. 248. See L. 
 R. 3 App. Cas. 1324. The riparian proprie- 
 tor upon a navigable lake has the exclusive 
 right of access to and from the lake in front 
 of his land, and of building wharves in aid of 
 navigation, not interfering with the public 
 easement; 42 Wise. 214; 10 Mich. 125. 
 Riparian owners on the large fresh-water 
 lakes of New York own only to low water 
 mark ; the public own the beds of the lake ; 
 4 Wend. 423 ; the same rule obtains in New 
 Hampshire; 9 N. H. 461; but in a later 
 case it was held that a lake about one mile 
 wide by five miles long passed under a grant 
 of a larger tract which included it ; 36 Barb. 
 102. See Ang. Waterc. 
 
 LAMB. A sheep, ram or ewe, under the 
 age of one year. 4 C. & P. 216. 
 
 LAMBETH DEGRBB. A degree given 
 by the archbishop of Canterbury. 1 Bla. 
 Com. 381, 11. Although he can confer all 
 degrees given by the two universities, the 
 graduates have many privileges not shared by 
 the recipients of his degrees. 
 
 LAMMAS DAT. The 1st of August. 
 Cowel. It is one of the Scotch quarter days, 
 and is what is called a "conventional term." 
 Moz. and W. 
 
 LAND, LANDS. A term comprehend- 
 ing any ground, soil, or earth whatsoever : as, 
 meadows, pastures, woods, waters, marshes, 
 furzes, and heath. 45N.H.313. Arableland. 
 
 Annexations made by a stranger to the 
 soil of another without his consent become 
 the property of the owner of the soil ; Brit- 
 ton, bk. 2, ch. 2, sec. 6, p. 856; 2 Kent, 
 334; 15 111. 397. When annexations are 
 made by the owner of the soil with the mate- 
 rials of another, so long as the identity of the 
 original materials can be proved, the right of 
 the original owner is not lost; 25 ¥^620; 
 57 N. H. 514. 
 
 An estate of frank tenement at the least. 
 Shepp. Touch. 92. 
 
 Land has an indefinite extent upward as well 
 as downward : therefore, land legally includes 
 all houses or other buildings standing or built 
 on it, and whatever is in a direct line between 
 the surface and the centre of the earth. 3 Kent, 
 378, n. See Co. Litt. 4 a ; Wood, Inst. 120 ; 8 
 Bla. Com. 18; 1 Cruise, Dig. 58. The law 
 recognizes horizontal divisions of land : e. g., 
 the different strata of a mine ; 37 Penn. 430. 
 
 Under the homestead laws, a part of a house 
 may be reserved and the rest taken in execution ; 
 4 Iowa, 368. Contra, 9 Wise. 70. Livery may 
 be made of a chamber in a house ; Shep. Touehst. 
 214; and an upper chamber may constitute a 
 distinct tenement; Burt. K. P. 549. See the 
 subject treated in 1 Am. Law Keg. N. s. 577. It 
 is not so broad a term as tenements, or heredita- 
 ments, hut has been defined in some states as 
 including these. 1 Washb. R. P. 9; 2 Rev. 
 Stat, of N. Y. 137, § 6 ; 88 Barb. 336. 
 
 In the technical sense, freeholds are not in- 
 cluded within the word lands; 3 Madd. 535. 
 The term terra in Latin was used to denote land, 
 from terendo, quia vomere teritur (because it is 
 broken by the plough), and, accordingly, in 
 fines and recoveries, land, i. e. terra, has been 
 held to mean arable land ; Salk. 356 ; Cowp. 
 346; Co. Litt. 4 a ; 11 Co. 55 a. But see 
 Cro. Ellz. 476 ; 4 Bingh. 90 ; Bu^. R. P. 196. 
 See, also, S P. Wms. 458, n. ; 5 Ves. 476 ; 20 
 Viner, Abr. 203. 
 
 Land includes, in general, all the buildings 
 erected upon it; 9 Day, 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. 449; 105 id. 414; yet 
 cases are not wanting where it has been held 
 that such an erection, under peculiar circum- 
 stances, would be considered as personal pro- 
 perty; 4 Mass. 514; 111 id. 298; 6 N. H. 
 555; 10 Me. 371; 1 Dana, 591 ; 1 Burr. 
 144. It includes mines, except mines of gold 
 and silver ; and in the United States a grant 
 of public lands will include these also; 3 
 Kent, 378, n. ; 1 N. Y. 572. See Mines. 
 
 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 ; Shepp. 
 Touehst. 92. But if a man have no freehold 
 estate, " lands," in a will, will pass his lease- 
 hold ; and now, by statute, leasehold will pass 
 if no contrary intent is shown, and the de- 
 scription is applicable even if he have free- 
 hold; 1 Vict. c. 26 ; 2 B. & P. 303; Cro. 
 Car. 292 : 1 P. Wms. 286 ; 11 Beav. 237, 250. 
 Generally, in wills, "land" is used in its 
 broadest sense ; 1 jarm. Wills, 604, n. ; 
 Pow. Dev. 186; 10 Paige, 140. But as 
 the word has two senses, one general and one 
 restricted, if it occurs accompanied with other 
 words which either in whole or in part sup- 
 ply the difference between the two senses, 
 that is a reason for taking it in its less general 
 sense : e. g. in a grant of lands, meadows, and 
 pastures, the former word is held to mean 
 only arable land; Burt. R. P. 183; Cro. 
 Eliz. 476, 659 ; 2 And. 123 ; 5 Johns. 440. 
 
 Incorporeal hereditaments will not pass un- 
 der "lands," if there is any other real estate 
 to satisfy the devise ; but if there is no other 
 such real estate they will pass, by statute. 
 Moore, 359, pi. 49 ; 3 & 4 Will. IV. cc. 74, 
 105, 106. See Real Property ; Fixtukes. 
 In equity, under certain circumstances, 
 money is considered land ; as where it is di- 
 
LANDS CLAUSES ACTS 
 
 42 
 
 LANDLORD AND TENANT 
 
 rected to be converted into land, by will or con- 
 tract, marriage articles, settlement, or other- 
 wise; Bisp. Eq. § 307. See Conversion. 
 
 LANDS CLAUSES CONSOLIDA- 
 TION ACTS. Important acts, beginning 
 in 1845, and last amended by 32 & 33 Vict. 
 c. 18, the object of which was to provide 
 legislative clauses in a convenient form for 
 incorporation by reference in future special 
 acts of parliament for taking lands, with or 
 without the consent of their owners, for the 
 promotion of railways, and other public un- 
 dertakings; Moz. & W. 
 
 LAND CEAP, LAND CHEAP Hand, 
 and Sax. ceapan, to buy). A fine payable in 
 money or cattle, upon the alienation of land, 
 within certuin manors and liberties. Cowel, 
 
 LAND COURT. In American Law. 
 
 The name of a court which formerly existed 
 in the city of St. Louis, state of Missouri, 
 having sole jurisdiction in St. Louis county 
 in suits respecting lands, and in actions of 
 ejectment, dower, partition. 
 
 LANDIRECTA. Rights charged upon 
 land. Toml. See Trinoda Necessitas. 
 
 LAND-MARK. A monument set up in 
 order to ascertain the boundaries between 
 two contiguous estates. For removing a land- 
 mark an action lies. 1 Thomas, Co. Litt. 
 787. See Monuments. 
 
 LAND-REEVE. One whose business it 
 is to overlook parts of an estate. Moz. & W. 
 
 LAND TAX. A tax on the beneficial 
 proprietor of land such as is imposed in 
 many of the states ; so far as a tenant is bene- 
 ficial proprietor, aud no farther, does it rest 
 on him. It has superseded all other methods 
 of taxation in Great Britain. Sugden, Vend. 
 268. It was first imposed in 1693, a new 
 valuation of the lands in the kingdom having 
 been made in 1692, which has not since been 
 changed. In 1798 it was made perpetual, at 
 a rate of four shillings in a pound of valued 
 rent. Under the provisions of the stat. 16 
 & 1 7 Vict. c. 74 ; this tax is now generally 
 redeemed. See Encyc. Brit. 7''axation. 
 
 LAND TENANT (commonly called terre 
 tenant, q. v."). He who actually possesses the 
 land. 
 
 LAND TITLES AND TRANSFER 
 ACT. The stat. 38 & 39 Vict. c. 87, for the 
 establishment of a registry for titles to land, 
 with various provisions in reference to the 
 transmission of land, and unregistered deal- 
 ings with registered land, etc. Analogous to 
 the recording or registry laws of the United 
 States. 
 
 LANDING. A place for loading or un- 
 loading boats, but not a harbor for them. 74 
 Penn. 373. 
 
 LANDLORD. The lord or proprietor of 
 land, who, under the feudal system, retained 
 the dominion or ultimate property of the 
 feud, or fee of the land ; while his grantee, 
 
 who had only the possession and use of the 
 land, was styled the feudatory, or vassal, 
 which was only another name for the tenant or 
 holder of it. In the popular meaning of the 
 word, however, it is applied to a person who 
 owns lands or tenements which he rents out 
 to others. 
 
 LANDLORD AND TENANT. A term 
 used to denote the relation which subsists 
 by virtue of a contract, express or implied, 
 between two or more persons, for the posses- 
 sion or occupation of lands or tenements 
 either for a definite period, from year to year, 
 for life, or at will. 
 
 When this relation is created by an ex- 
 press contract, the instrument made use of for 
 the purpose is called a lease. See Lease. 
 But it may also arise by necessary implication 
 from the circumstances of the case and the 
 relative position of the parties to each other ; 
 for the law will imply its existence in many 
 cases where there is an ownership of land on 
 the one hand and an occupation of it by per- 
 mission on the other ; and in such cases it 
 will be presumed that the occupant intends to 
 compensate the owner for the use of the prem- 
 ises; 4 Pet. 84; 89 111. 578; 60 N. Y. 102. 
 The intention to create. This relation 
 may be inferred from a variety of circum- 
 stances; but the most obvious acknowledg- 
 ment of its existence is the payment of rent ; 
 and this principle applies even after the ex- 
 piration of a lease for a definite term of years ; 
 for if a tenant continues to hold over, after 
 his term has run out, the landlord may, if he 
 chooses, consider him a tenant, and he is, in 
 fact, understood to do so, unless he proceeds 
 to eject him at once. If the landlord suffers 
 him to remain, and receives rent from him, 
 or by any other act acknowledges him still as 
 tenant, a new tenancy springs up, usually from 
 year to year, regulated by the same covenants 
 and stipulations entered into between the par- 
 ties at the creation of the original term in so 
 far as they are applicable to the altered nature 
 of the tenancy ; 15 Johns. 505 ; 4 M'Cord, 59 ; 
 2 C. & P. 348 ; 42 Ind. 212 ; 43 Md. 446 ; 42 
 Cal. 316. 
 
 The payment of money, however, is only a 
 prima facie acknowledgment of the exist- 
 ence of a tenancy ; for if it does not appear 
 to have been paid as rent, but has been paid 
 by mistake or stands upon some other consid- 
 eration, it will not be evidence of a subsisting 
 tenancy; 10 East, 261; 4 Bingh. 91; SB. 
 & C. 413 ; 4 M. & G. 143. Neither does a 
 mere participation in the profits of land, where 
 the owner is not excluded from possession, nor 
 the letting of land upon shares, unless the oc- 
 cupant expressly agrees to pay a certain part 
 of the crop as rent, in either case amount to 
 a tenancy ; 1 Gill & J. 266 ; 3 Zabr. 390 ; 2 
 Rawle, 11 ; 42 Vt. 94; 60 N. Y. 221 ; 21 
 111. 200. ' 
 
 But the relation of landlord and tenant 
 will not be inferred from the mere occupation 
 of land, if the relative position of the par- 
 ties to each other can, under the circum 
 
LANDLORD AND TENANT 
 
 43 
 
 LANDLORD AND TENANT 
 
 stances of the case, be referred to any other 
 distinct cause: as, for instance, between a 
 vendor and vendee of land, where the pur- 
 chaser remains in possession after the agree- 
 ment to purchase falls through. For the pos- 
 session in that case was evidently taken with 
 the understanding of both parties that the 
 occupant should be owner, and not tenant; 
 and the other party cannot without his 
 consent convert him into a tenant, so as to 
 charge him with rent ; 6 Johns. 46 ; 21 Me. 
 525 ; 8 M. & W. 118 ; 10 Cush. 259 ; 16 Vt. 
 257 ; 11 N. H. 148 ; 60 Barb. 463; 46 Me. 
 456; 12 B. Monr. 504; 16 Pet. 25; 17 Ind. 
 509. The same principle applies to a mort- 
 gagor and mortgagee, as well as to that of a 
 mortgagor and an assignee of the mortgagee 
 for no privity of the estate exists in either 
 case ; and, as a general rule, a tenancy by im- 
 plication can never arise under a party who 
 has not the legal estate of the premises in 
 question ; 2 M. & R. 303 ; 6 Ad. & E. 265 ; 
 Taylor, Landl. & T. § 25 ; 16 Vt. 371. 
 
 Generally, the rights and obligations of the 
 parties will be considered as having com- 
 menced from the date of the lease, if there 
 be one, and no other time for its commence, 
 ment has been agreed upon ; or, if there be 
 no date, then from the delivery of the papers 
 If, however, there be no writings, it will take 
 effect from the day the tenant entered into 
 possession, and not with reference to any 
 particular quarter-day; .4 Johns. 230; 15 
 Wend. 656; 3 Camp. 510; Taylor, Landl. 
 & T. 135 (11 ed.). And these rights and 
 duties attach to each of the parties, not only 
 in respect to each other, but also with refer- 
 ence to other persons who are strangers to the 
 contract. The landlord retains certain rights 
 over the property, although he has parted 
 with its possession, while the tenant assumes 
 obligations with respect to it which continue 
 so long as he is invested with that character. 
 
 After the making of a lease, the right of 
 possession, in legal contemplation, remains in 
 the landlord until the contract is consummated 
 by the entry of the lessee. When the tenant 
 enters, this right of possession changes, and 
 he draws to himself all the rights incident to 
 possession. The landlord's rights in the 
 premises during the term of the lease are con- 
 fined to those expressly or impliedly derived 
 from the contract of lease and to the protec- 
 tion of his reversionary interest. He may 
 maintain actions for such injuries as would, in 
 the ordinary course of things, continue to 
 affect his interest after the determination of 
 the lease. But such injuries must be of a 
 character permanently to affect the inherit- 
 ance ; such are breaking the windows of a 
 house, cutting timber, or damming up a rivu- 
 let, whereby the timber on the estate becomes 
 rotten; 11 Mass. 519; 1 Maule & S. 234; 
 3 Me. 6 ; 5 Duer, 494 ; 26 How. Pr. 105. 
 
 The landlord usually reserves the right to 
 go upon the premises peaceably, for the pur- 
 pose of ascertaining whether any waste or 
 injury has been committed by the tenant or 
 other persons, first giving notice of his inten- 
 
 tion. But he has no such right unless he 
 reserves it in the lease. He may also use all 
 ways appurtenant thereto, and peaceably 
 enter the premises to demand rent, to make 
 such repairs as are necessary to prevent waste, 
 or to remove an obstruction ; 1 B. & C. 8 ; 
 7 Pick. 76 ; 5 Harr. 378. But if the rent is 
 payable in hay or other produce, to be de- 
 livered to him from the farm, he is not enti- 
 tled to go upon the land and take it, until it 
 is delivered to him by the tenant, or until 
 after it has been severed and set apart for 
 his use; 9 Me. 137 ; 5 Blackf. 317. 
 
 The landlord's responsibilities in respect 
 to possession, also, are suspended as soon as 
 the tenant commences his occupation ; 4 
 Term, 318; 2 Sandf. 301; 2 ,St. Louis 
 (Mo.) App. 66. But if a stranger receive 
 injuries from the ruinous state of the premises 
 at the time of the demise, or from any fault 
 in their construction, or from any nuisance 
 thereon, even though it be created by a 
 tenant's ordinary use of the premises, the 
 landlord remains liable ; 43 Barb; 482 ; L. R. 
 2 C. P. 311; 116 Mass. 67; 4 Hun, 24; 
 20 Penn. 387 ; and if the landlord has under- 
 taken to keep the premises in repair, and the 
 injury be occasioned by his neglect to keep 
 up the repairs, or if he renew the lease with 
 a nuisance upon it, he will be likewise liable ; 
 2 H. Blackst. 350 ; 4 Taunt. 649 ; 1 Ad. & 
 E. 822; 67 111. 47. 
 
 The principal obligation on the part of 
 the landlord, which is, in fact, always to be 
 implied from the operative words of the lease, 
 ^t is also usually inserted as a distinct cove- 
 nant, is that the tenant shall enjoy the quiet 
 possession of the premises, — which means, 
 substantially, that he shall not be turned out 
 of possession of the whole or any material 
 part of the premises by one having a title 
 paramount to that of landlord, or that the 
 landlord shall not himself disturb or render 
 his occupation uncomfortable by the erection 
 of a nuisance on or near the premises, which 
 the law holds tantamount to an eviction ; 8 Co. 
 80ft; 4 Wend. 502; 8 Paige, 597 ; 8 Cow. 
 727 ; 13 N. y. 151 ; 5 Day, 282 ; 6 Term, 
 458; 29 Md. 35; 10 Gray, 258; 3 Duer, 
 464 ; 3 East, 491 ; 6 Dowl. & R. 349 ; 7 
 Wend. 281 ; 6 Mass. 246. But express 
 covenants for quiet enjoyment are framed 
 usually only against eviction by a paramount 
 title and against the lessor, his heirs, and 
 those claiming under them; implied cove- 
 nants have a similar effect. So that if the 
 tenant be ousted by a stranger, that is, by one 
 having no title, or if the molestation proceeds 
 from the acts of a third person, the landlord 
 is in neither case responsible for it ; 1 Term, 
 671 ; 3 Johns. 471 ; 7 Wend. 281 ; 5 Hill, 
 N. Y. 599; 13 East, 72; 12 Wend. 529; 25 
 Barb. 594 ; Taylor, Landl. & T. S 304, etc. 
 
 Another obligation which the law imposes 
 upon the landlord, in the absence of any ex- 
 press stipulation in the lease, is the payment 
 of all arrears of ^ound-rent, or interest upon 
 mortgages to which the property leased may 
 be subject. The same rule appUes as regards 
 
LANDLORD AND TENANT 44 LANDLORD AND TENANT 
 
 all taxes chargeable on the premises, though, 
 as regards these, statutes, both in England and 
 in almost all the United States, have been 
 passed expressly imposing the duty of paying 
 them on the landlord. Sometimes covenants 
 to that effect are inserted in the lease. In 
 general, every landlord is bound to protect 
 his immediate tenant against all paramount 
 claims ; and if a tenant is compelled, in order 
 to protect himself in the enjoyment of the 
 land in respect of which his rent is payable, 
 to make payment which ought, as between 
 himself and his landlord, to have been made 
 by the latter, he may call upon the landlord 
 to reimburse him, or he may set off such pay- 
 ment against the rent due or to become due ; 
 6 Taunt. 524 ; 5 Bingh. 409 ; 3 B. & Aid. 
 647 ; 7 id. 285 ; 5 id. 521 ; 3 Ad. & E. 
 331 ; 3 M. & W. 312 ; 19 Mo. 501. 
 
 There is no warranty in a lease on the part 
 of the landlord that the premises are fit for 
 the purpose for which they are intended (but 
 see 3 Rob. La. 52); 25 Wend. 669; 71 
 Penn. 383 ; 3 Gray, 823 ; 48 Me. 316. The 
 landlord is, in the absence of any express 
 covenant or agreement, under no obligation 
 to make any rejmirs, or to rebuild in case' the 
 premises should be burned. And it is not in 
 the power of a tenant to make repairs at the 
 expense of his landlord, unless there be a 
 special agreement between them authorizing 
 him to do so ; for the tenant takes the pre- 
 mises for better or for worse, and cannot in- 
 volve the landlord in expense for repairs 
 without his consent ; 6 Cow. 475 ; 3 Du. N. 
 Y. 464; 7 East, 116 ; 1 Ry. & M. 357 ; J 
 Mann. & G. 576 ; 52 N. Y. 512 ; 51 111. 
 492; 33 Gal. 341; 1 Sandf. 321 ; 22 Ind. 
 114 ; 36 Vt. 40. Even if the premises have 
 become uninhabitable by fire, and the land- 
 lord having insured them has recovered the 
 insurance-money, the tenant cannot compel 
 him to expend the money so recovered in re- 
 building, unless he has expressly engaged to 
 do so ; nor can he, in such an event, protect 
 himself from the payment of rent during the 
 unexpired balance of the term ; 8 Paige, Ch. 
 437; 1 Sim. Ch. 146; 1 Term, 312; 4 N. 
 Y. 126 ; 1 E. & E. 474 ; 52 N. Y. 512 ; 81 
 111. 607. 
 
 On the part of (he tenant, we may observe 
 that on taking possession he is at once in- 
 vested with all the rights incident to posses- 
 sion, is entitled to the use of all the privileges 
 and easements appurtenant to the premises, 
 and is at liberty to take such reasonable es- 
 tovers and emblements as are attached to the 
 estate. He may maintain an action against 
 any person who disturbs his possession or tres- 
 passes upon the premises, though it be the 
 landlord himself; Cro. Car. 325; 3 Wils. 
 461; 2W. Bla. 924; 2B. &Ad. 97; 1 
 Denio, 91 ; 3 Lev. 209 ; 17 C. B. N. s. 678 ; 
 8 Cush. 119 ; 1 Ohio, 251. And even after 
 the expiration of his term may recover for 
 injuries done during the period of his ten- 
 ancy ; 2 Rolle, Abr. 551 ; Holt, N. P. C. 
 553. As occupant, he is also answerable for 
 any neglect to repair highways, fences, or 
 
 party- wall. He is liable for all injuries pro- 
 duced by the mismanagement of his servants, 
 or by a nuisance kept upon the premises, or 
 by an obstruction of the highway adjacent to 
 them, or the like; for, as a general rule, 
 where a man is in possession of property, he 
 must so manage it that other persons shall not be 
 injured thereby ; 3 Term, 766 ; 3 Q. B..449 ; 2 
 Ld. Raym. 792 ; 22 N. Y. 355 ; 65 111. 160; 
 1 M. & W. 435 ; 51 Penn. 429 ; 3 Hun, 708. 
 
 Another obligation which the law imposes 
 upon every tenant, independent of any agree-' 
 ment, is to treat the premises in such a man- 
 ner that no substantial injury shall be done to 
 them, and so that they may revert to the land- 
 lord at the end of the term, unimpaired by any 
 wilful or negligent conduct on his part. In the 
 language of the books, he must keep the build- 
 ings wind-and-water-tight, and is bound to 
 make fair and tenantable repairs, such as the 
 keeping of fences in order, or replacing doors 
 and windows that are broken during his occu- 
 pation. If it is a furnished house, he must 
 preserve the furniture, and leave it, with the 
 linen, etc., clean and in good order ; 5 C. & 
 P. 239; 7 id. 827; 4 Term, 318; 18 Ves. 
 Ch. 331 ; 2 Esp. 590 ; 4 M. & G. 95 ; 12 M. 
 & W. 827; 94 U. S. 53; 55 Md. 71; 28 
 Penn. 306. 
 
 But he is not bound to rebuild premises 
 which have accidentally become runious dur- 
 ing his occupation ; nor is he answerable for 
 ordinary wear and tear, nor for an accidental 
 fire, nor to put a new roof on the building, 
 nor to make what are usually called general 
 or substantial repairs. Neither is he bound 
 to do painting, white-washing, or papering, 
 except so far as they may be necessary to pre- 
 serve exposed timber from decay. In gene- 
 ral he need do nothing which will make the 
 inheritance better than he found it ; 6 Term, 
 650; 6 C. & P. 8; 12 Ad. & E. 476; 1 
 Marsh. 567; 10 B. & C. 299; 2 Daly, 140; 
 10 Q. B. 135. 
 
 W ith respect to farming leases, a tenant 
 is under a similar obligation to repair ; but it 
 differs from the general obligation in this, 
 that it is confined to the dwelling-house which 
 he occupies, — the burden of repairing and 
 maintaining the out-buildings and other erec- 
 tions on the farm being sustained either by 
 the landlord, or the tenant, in the absence of 
 any express provision in the lease, by the 
 particular custom of the country in which the 
 farm is situated. He is always bound, how- 
 ever, to cultivate the farm in a good and 
 husband-like manner, to keep the fences in 
 repair, and to preserve the timber and orna- 
 niental trees in good condition ; and for any 
 violation of any of these duties he is liable to 
 be proceeded against by the landlord for 
 waste, whether the act of waste be committed 
 by the tenant or, through his negligence, by a 
 stranger; Co. Litt. 63; 6 Taunt. 300; 18 
 East, 18; 2 Dougl. 746; 1 Taunt. 198; 1 
 Denio, 104; 55 Penn. 847; 70 111. 527 ; 94 
 U. S. 58 ; 6 Term, 873. As to what consti- 
 tutes waste, see Waste. 
 
 The tenant's general obligation to repair 
 
LANDLORD AND TENANT 
 
 45 
 
 LANDLORD AND TENANT 
 
 also renders him responsible for any injury 
 a stranger may sustain by his neglect to keep 
 the premises in a safe condition : as, by not 
 keeping the covers of his vaults sufReiently 
 closed, so that a person walking in the street 
 falls through, or is injured thereby. If he 
 repairs or improves the building, he| must 
 guard against accident to the passers-by in 
 the street, by erecting a suitable barricade, 
 or stationing a person there to give notice of 
 the danger; 2 Term, 318; 109 Mass. 398; 
 22 N. Y. 366 ; 65 Barb. 214 ; L. R. 2 C. P. 
 311 ; L. R. 5 Q. B. 501. For any unreason- 
 able obstruction which he places in the high- 
 way adjoining his premises, he may be in- 
 dicted for causing a public nuisance, as well 
 as rendered liable to an action for damages, 
 at the suit of any individual injured. Nor 
 may the tenant keep dangerous animals on 
 the premises ; 4 Denio, 500 ; 15 Vt. 404. At 
 common law, if a fire began in a dwelling- 
 house and spread to neighboring buildings, 
 the tenant of the house where the fire begun 
 was liable on damages to all whose property 
 was injured. But by a statute of Queen Anne, 
 amended by stat. 14 Geo. III. c. 78, this 
 right of action has been taken away. The 
 statute is generally re-enacted in the United 
 States; vide Taylor, Landl. & T. § 196. 
 
 The tenant's cJiief duty, however, is the 
 payment of rent, the amount of which is 
 either fixed by the terms of the lease, or, in 
 the absence of an express agreement, is such 
 a reasonable compensation for the occupation 
 of the premises as they are fairly worth. If 
 there has been no particular agreement be- 
 tween the parties, the tenant pays rent only 
 for the time he has had the beneficial enjoy- 
 ment of the premises ; but if he has entered 
 into an express agreement to pay rent during 
 the term, no casualty or injury to the premises 
 by fire or otherwise, nothing, in fact, short of 
 an eviction, will excuse him from such pay- 
 ment ; AI. 26 ; 4 Paige, Ch. 355 ; 18 Ves. 
 415; 1 H. & J. 42; 16 Mass. 240; 7 
 Gray, 560 ; 1 Terra, 310 ; 10 M. & W. 321 ; 
 6 Phila. 457 ; 72 Penn. 685 ; 61 N. Y. 356 ; 
 80 m. 532 ; 4 Harr. & J. 564. But this is 
 not the law in South Carolina ; 1 Bav, 499 ; 
 4 iMcCord, 447. But, if he has been de- 
 prived of the possession of the premises by 
 the landlord, or by a third person, under a 
 title paramount to that of the landlord, or if 
 the latter annoys his tenant, or erects or causes 
 the erection of such a nuisance upon or near 
 the premises as renders the tenant's occupa- 
 tion so uncomfortable as to justify his re- 
 moval, he is in either case discharged from 
 the payment of rent ; 8 Cowen, 727 ; 4 N. Y. 
 217; 4 Rawle, 339; Co. Litt. 148 b; 75 
 111. 536 ; 117 Mass. 262 ; 106 Mass. 201 ; 18 
 N.Y. 509; 63 111. 430; 2 Ired. Eq. 350; 17 
 C. B. 30. If, however, part only of the 
 premises be recovered by paramount title, 
 the rent is apportioned, and the tenant re- 
 mains liable in proportion to the part from 
 which he has not been evicted ; 2 East, 575 ; 
 39 Barb. 59 ; 1 Allen, 489 ; see Rent. 
 The obligation to pay rent may be appor. 
 
 tioned; for, as rent is incident to the rever- 
 sion, it will become payable to the assignees 
 of the respective portions thereof whenever 
 that reversion is severed by an act of the par- 
 ties or of the law. But the tenant's consent 
 is necessary for an apportionment when made 
 by the landlord, unless the proportion of rent 
 chargeable upon each portion of the land has 
 been settled by the intervention of a jury ; 22 
 Wend. 121; 2 Barb. 643; 3 Denio, 454; 
 
 5 B. & Aid. 876; 1 M. & G. 577 ; 6 Halst. 
 262 ; 22 Pick. 569. A tenant, however, can- 
 not get rid of or apportion his rent by trans- 
 ferring the whole or a part of his lease ; for if 
 he assigns it, or underlets a portion of it, he 
 still remains liable to his landlord for the 
 whole ; Cro. Eliz. 63.3 ; 24 Barb. 333 ; Dyer, 
 4 B. Instances of an apportionment by act 
 of law occur where there is a descent of the 
 reversion among a number of heirs, or upon 
 a judicial sale of a portion of the premises ; 
 for in such cases the tenant will be bound to 
 pay rent to each of the parties for the portion 
 of the premises belonging to them respectively. 
 So, if a man dies, leaving a widow, she will 
 have a right to receive one-third of the rent, 
 while the remaining two-thirds will be payable 
 to his heirs ; so, if a part of the demised prem- 
 ises be taken for public purposes, the tenant is 
 entitled to an apportionment ; Cro. Eliz. 
 742; Co. Litt. 148 a; 25 Wend. 456; 
 13 111. 625; 20 Mo. 24; 57 Penn. 271; 3 
 Whart. 357. At common law rent could not 
 be apportioned as to time ; 2 Ves. Sr. 672; 
 3 Watts, 394. But various statutes, such as 
 11 Geo. II. c. 19, both in England and the 
 United States, have mitigated the hardships 
 resulting from an enforcement of this rule. 
 See Taylor, Landl. & T. § 389. 
 
 These rights and liabilities are not confined 
 to the immediate parties to the contract, but 
 will be found to attach to all persons to 
 whom the estate may be transferred, or who 
 may succeed to the possession of the prem- 
 ises, either as landlords or tenants. This 
 principle follows as a necessary consequence 
 of that privity of estate which is incident to 
 the relation of landlord and tenant. A land- 
 lord may not violate his tenant's rights by a 
 sale of the property ; neither can a tenant 
 avoid his responsibilities by substituting an- 
 other tenant in his stead without the land- 
 lord's consent. The purchaser of the pro- 
 perty becomes in one case the landlord, and 
 is entitled to all the rights and remedies 
 against the tenant or his assignee which the 
 seller had ; while in the other case the as- 
 signee of the lessee assumes all the liabili- 
 ties of the latter, and is entitled to the same 
 protection which he might claim from the 
 assignee of the rever.<iion ; in the case of ex- 
 press covenants the original lessee is not by 
 the transfer discharged from his obligations ; 
 17 Johns. 239; 24 Barb. 365; 13 Wend. 
 530; 19 N. Y. 68 ; 8 Ves. Ch. 95; 1 Ves. 
 
 6 B. Ch. 11 ; 4 Term, 94 ; 17 Vt. 626 ; 2 W. & 
 S. 556 ; 12 Miss. 43 ; 1 Dall. 305. In case 
 of implied covenants he is discharged if the 
 landlord specially accept the assignee as his 
 
LANDLORD AND TENANT 46 LANDLORD AND TENANT 
 
 tenant; 9 Vt. 191 ; 3 Rep; 22 ; 1 Sm. L. 
 Cas. *176; and the liability of the assignee 
 may be at any time terminated by him, by 
 a transfer of the estate assigned, even if the 
 transfer be made to a pauper with express in- 
 tent to evade liability ; 3 Y. & C. 96 ; 9 
 Cow. 88 ; 9 Vt. 181. 
 
 The relation of landlord and tenant may 
 he terminated in several ways. If it is a 
 tenancy for life, it will of course terminate 
 upon the decease of him upon whose life the 
 lease depends ; but if it be for life, or for a 
 certain number of years, and depend upon 
 some particular event, the happening of that 
 event will determine the tenancy. So if it 
 be for a certain number of years, independ- 
 ent of any contingency, it will expire at the 
 last moment of the last day of the tenancy. 
 And in all these cases depending upon the 
 express conditions of the lease, no notice to 
 quit will be necessary in order to dissolve the 
 relation of the parties to each other ; Co. 
 Litt. 216; Shepp. Touchst. 187 ; 9 Ad. & E. 
 879; 5 Johns. 128; 1 Pick. 43; 2 S. & R. 
 49 ; 18 Me. 264 ; 7 Halst. 99 ; Taylor, Landl. 
 & T. § 465. 
 
 But a tenancy from year to year, or at will, 
 can only be terminated on the part of the 
 landlord by a notice to quit. This notice 
 might at common law be by parol, but by 
 statute in England and in most of the United 
 States must now be in writing ; 3 Burr. 1 603 ; 
 
 2 Brewst. 528; 5 Esp. 196; it must be ex- 
 plicit, and require the tenant to remove from 
 the premises ; 2 Clark, Pa. 219 ; 2 Gray, 335 ; 
 11 Cush. 191 ; Dougl. 175 ; 5 Ad. & E. 350; 
 it must be served upon the tenant, and not 
 upon an under-tenant ; it must run in the 
 name of the landlord, and not of his agent ; 
 10 Johns. 270 ; 6 B. & G. 41. But personal 
 service of the notice on the tenant is not ab- 
 solutely essential, and it is sufficient if the 
 notice be left at the tenant's usual residence 
 with his wife or servant ; 4 Tenn. 464 ; 7 
 East, 551 ; L. R. 5 H. L. 134 ; 103 Mass. 
 154; 44 Mo. 581. Whether a tenant from 
 year to year is in any event bound to give 
 notice to determine the tenancy seems 
 doubtful. See the authorities collected in 
 Bright. Pa. 463. At common law this 
 notice was required to be one of half a year, 
 ending with the period of the year at which 
 the tenancy commenced; 1 W. Bla. 596; 3 
 Term, 13; 7 Q. B. 638; 4Bing. 362; 1 Esp. 
 94 ; and this rule prevails in Kentucky, 
 Tennessee, North Carolina, Vermont, Illinois, 
 and New Jersey as to tenancies from year to 
 year ; 1 Johns. 322 ; 22 Vt. 88 ; 4 Ired. 291 ; 
 
 3 Green, N. J. 181 ; 4 Kent, 113; 6 Terg. 
 431 ; 8 Cow. 13; 18 111. 75; 39 111. 378. In 
 Pennsylvania, South Carolina, New Hamp- 
 shire, Massachusetts and Michigan, three 
 months' notice is required; 4 Post. 219; 8 
 S. & R. 458; 2 Rich. S. C. 346; 11 Penn. 
 472; 34 id. 96; 113 Mass. 214; while the 
 New York statutes provide for its termination 
 by giving one month's notice wherever there 
 is a tenancy at will or by sufferance, created 
 by the tenant holding over after the term or 
 
 otherwise ; 1 R. S. 745, § 7. The subject is 
 in general governed by statutory rules too 
 numerous and complicated to set forth. 
 
 The relation of landlord and tenant will 
 also be dissolved when the tenant incurs a for- 
 feiture of his lease by the breach of some 
 covenant or condition therein contained. At 
 common law a forfeiture was incurred if the 
 tenant did any act which was inconsistent with 
 his relation to his landlord : as if he impugned 
 the title of his lessor by affirming by matter 
 of record the fee to be in a stranger, claimed 
 a greater estate than he was entitled to, 
 or undertook to alienate the estate in fee; 
 Co. Litt. 261 h, 252 a ; Cro. Eliz. 321 ; 12 
 East, 444. But these causes of forfeiture, 
 founded upon strict feudal principles, have 
 been generally abolished in the United 
 States ; and a forfeiture of a term of years 
 now only occurs in consequence of a breach 
 of some express stipulation contained in the 
 lease, as for the commission of waste, non- 
 payment of rent, or the like ; 2 Hill, 554 ; 
 
 7 Paige, Ch. 350 ; 5 B. & C. 855 ; 22 Md. 
 122 ; 20 111. 125 ; 32 Mich. 315. A forfeiture 
 may be waived by an acceptance of, or dis- 
 training for, rent which became due after a 
 breach committed by the tenant, or by giving 
 a notice to quit, or by any other act which ac- 
 knowledges the continuance of the tenancy ; 
 
 8 Watts, 51 ; 2 N. H. 163 ; 18 Johns. 174; 
 3 H. & M. 436 ; 1 Binn. 333 ; 1 M. & W. 
 408 ; 6 Wise. 323 ; 4 H. & N. 612 ; L. R. 
 7Q.B. 344; 21 Wend. 537; 40 Mo. 449; and 
 will be relieved against by the courts in all 
 cases wJiere it happened accidentally, or where 
 the injury is capable of compensation, the 
 damages on equitable principles being a mere 
 matter of computation; 12 Ves. Ch. 475; 
 16 id. 405; 2 Price, 206; 1 Dall. 210 ; 9 
 Mod. 22 ; Story, Eq. § 1314 ; 62 N. Y. 486 ; 
 44 Vt. 285 ; and it is always at the election 
 of the lessor to avail himself of his right of 
 re-entry for conditions broken or not as he 
 pleases ; 6 B. & C. 519 ; and vide 7 W. & S. 
 41 ; 38 Penn. 346 ; 12 Barb. 440 ; 5 Cush. 
 281 ; 29 Conn. 331 ; 1 Wall. 64. 
 
 Another means of dissolving a tenancy is 
 by an operation of law, termed a merger, — 
 which happens where a tenant purchases the 
 fee of the reversion, or the fee descends to 
 him as heir at law, the lease becoming there- 
 by merged in the inheritance, the lesser estate 
 being absorbed in the greater. 'To produce 
 this result, however, it is necessary that the 
 two estates should meet in the same person 
 and in the same right ; for if he who has the 
 reversion in fee marries the tenant for years, 
 or if a tenant makes the landlord his execu- 
 tor, the term of years is in neither case 
 merged, because in cither case he holds the 
 fee for his own benefit, while the term of 
 years is taken in one case for his wife's use, 
 and in the other for the benefit of the estate 
 he represents as executor; 10 Johns 481; 
 12 N. Y. 526; Co. Litt. 288 6; 1 Washb. 
 R. P. 354; 1 Clark, Pa. 362; 13 Penn. 
 16 ; 35 N. Y. 279 ; 3 Johns. Ch. 53. But 
 the universal current of opinion now sets 
 
LANDLORD AND TENANT 
 
 47 
 
 LANGUAGE 
 
 against the operation of the doctrine of merger 
 ■wherever a result will be produced contrary 
 to the intentions of the parties or prejudicial 
 to the interests of third parties ; 34 N. Y. 
 320; 4 Gray, 385; 4 DeG. M. & G. 474; 
 3 Hill, 96 ; 4 Paige, 403. 
 
 In addition to the several methods of put- 
 ting an end to a tenancy already mentioned, 
 we may add that it is, of course, competent 
 for a tenant at any time to svirrender his lease 
 to the landlord; 117 Mass. 357; 16 Johns. 
 28; 19 Cal. 354. An express surrender can 
 only be made by deed in England, since the 
 Statute of Frauds, and this provision is in 
 some of the states re-enacted ; 2 Wils. 26 ; 8 
 Taunt. 270; 11 Wend. 616; 8 Allen, 202; 
 8 Wise. 141. But a surrender by operation 
 of law is a case excepted out of the statute ; 
 as, for example, where, during the period of 
 the old lease, a* new one, inconsistent with it 
 in its terms, is accepted, the old lease is at an 
 end ; 8 Johns. 894 ; 99 Mass. 18 ; Taylor, 
 Landl. & T. 512; 117 Mass. 357. If the 
 subject-matter of the lease wholly perishes ; 
 26 N. T. 498; 118 Mass. 125; 38 Cal. 259; 
 11 Mete. 448 ; or is required to be taken for 
 public uses ; 38 Mo. 143 ; 20 Pick. 159 ; 57 
 Penn. 271; 119 Mass. 28; 43 N. Y. 377; 
 or the tenant disclaims to hold under his land- 
 lord, and therefore refuses to pay his rent, 
 asserts tlje title to be in himself or unlawfully 
 attorns to another, the tenancy is at an 
 end, and the landlord may forthwith resume 
 the possession; 3 Pet. 43; 4 Wend. 633; 21 
 Cal. 342 ; 8 Watts, 55 ; 5 Dana, 101 ; 23 
 Gratt. 332. 
 
 After the tenancy has ended, the right of 
 possession reverts to the landlord, who may 
 re-enter upon the premises if he can do so 
 without violence. But if the tenant holds 
 over and the landlord takes possession forci- 
 bly, so as to endanger a breach of the peace, 
 he runs the risk of being punished criminally 
 for a forcible entry (see Eorcibi.e Entby 
 AND Detainer) as well as of suffering the 
 consequences of an action of trespass; 121 
 Mass. 309 ; 59 Me. 568 ; 4 Allen, 318 ; 4 
 Am. Law Rev. 429 ; 10 Mass. 409 ; 1 M. & 
 G. 644 ; 1 W. & S. 90. The landlord should, 
 therefore, in all such cases, call in the law 
 to his assistance, and receive possession at the 
 hands of the sheriff. 
 
 _ The tenant, on his part, is bound quietly to 
 yield up the possession of the entire premises. 
 And for refusal to perform this duty he will be 
 subjected to all the statutory penalties of hold- 
 ing over ; 12 Pick. 416; 102 Mass. 514; 51 
 N. Y. 509 ; 84 111. 62 ; 35 Penn. 45 ; 62 Me 
 248 ; E. B. & E. 326. He has, however, a 
 reasonable right of egress and regress for the 
 purpose of removing his goods and chattels ; 
 2 Bla. Com. 14 ; 24 Me. 424 ; L. R. 5 C. P. 
 334. He may, also, in certain cases, take 
 the emblements or annual profits of the land 
 after his tenancy is ended, as to which his 
 rights are largely affected by local customs 
 (see Emblements), and, unless restricted by 
 some stipulation to the contrary, may remove 
 such fixtures as he has erecfed during his occu- 
 
 pation for his comfort and convenience, particu- 
 larly if for trade purposes. See Fixtures. 
 The ordinary common-law remedy by 
 which a landlord proceeds to recover the pos- 
 session of _ his premises is by an action of 
 ejectment, and in these cases it is a general 
 rule that the tenant is never permitted, for 
 reasons of sound public policy, to controvert 
 his landlord's title, or to set up against him a 
 title acquired by himself during his tenancy 
 which is hostile in its character to that which 
 he acknowledged in accepting the demise ; 10 
 East, 158 ; 3 B. & C. 413; 7 Term, 488 ; 5 
 Wend. 246 ; 2 Denio, 431 ; 3 Ad. & E. 188 ; 
 
 2 Binn. 472; 15 N. Y. 327; 61 Me. J590; 
 54 Penn. 196 ; 42 Md. 81 ; 72 N. C. 294 ; 
 18 Wall. 431. But to this rule there are 
 some exceptions : of these the chief are cases 
 where the landlord's interest has expired 
 during the lease ; 2 Zab. 261 ; Taylor, Landl. 
 & T. § 708 ; or where he has sold and con- 
 veyed the land ; 10 Md. 333 ; 33 Ves. 383 ; 
 50 111. 232; 99 Mass. 15 ; or where the ten- 
 ant has been evicted by title paramount, and 
 accepted a new lease under the real owner of 
 the premises ; 69 Penn. 316 ; 66 Me. 167 ; 
 14 S. & R. 382 ; 32 Mich. 285. 
 
 But the slow and measured progress of the 
 action of ejectment in most cases affords a 
 very inadequate remedy to the landlord ; and 
 in order, therefore, to obviate the evils arising 
 from its delays, the statutes of the different 
 states provide a summary proceeding, by 
 which a landlord may be speedily reinstated, 
 upon short notice, in cases where a tenant 
 abandons the premises before the end of the 
 term without surrendering the lease, leaving 
 rent in arrear, continues to hold over after 
 the expiration of his term, or has become un- 
 able or unwilling to pay rent for the use of 
 the premises; 22 Wend, 611 ; Taylor, Landl. 
 & T. § 713 et seq. 
 
 See, further, on the subject of this article, 
 Woodfall, Smith, Taylor, Archbold, Comyns, 
 Cootes, and Smith & Soden, on the Law 
 of Landlord and Tenant ; Piatt on Leases ; 
 Washburn on Real Property, 468 et seq. 
 
 LANG-TTAGE. The medium for the com- 
 munication of perceptions and ideas. 
 
 Spoken language is that wherein articulate 
 sounds are used. 
 
 Written language is that wherein written 
 characters are used, and especially the sys- 
 tem of characters called letters and figures. 
 
 By conventional usage, certain sounds and 
 characters have a definite meaning in one coun- 
 try, or In certain countries, and this is called the 
 language of such country or countries : as, the 
 Greek, the Latin, the French, or the English 
 language. The law, too, has a peculiar language. 
 See Eunom. Dial. 3. 
 
 On the subjugation of England by William 
 the Conqueror, the French-Norman language 
 was substituted in all law-proceedings for the 
 ancient Saxon. This, according to Blackstone, 
 
 3 Com. 317, was the language of the records, 
 writs, and pleadings until the time of Edward 
 III. Mr. Stephen thinks Blackstone has fallen 
 Into an error, and says the record was, from the 
 earliest period to which that document can be 
 traced, in the Latin language. Plead. Appx. note 
 
LANGUAGE 
 
 48 
 
 LAPSED DEVISE 
 
 U. By the statute 36 Edw. III. st. 1, c. 15, it 
 was enacted that for the future all pleas should 
 be pleaded, shown, defended, answered, debated, 
 and judged in the English tongue, but be entered 
 and enrolled in Latin. The Norman or law 
 French, however, being more familiar as applied 
 to the law than any other language, the lawyers 
 continued to employ it in making their notes of 
 the trial of cases, which they afterwards pub- 
 lished in that barbarous dialect under the name 
 of Reports. 
 
 After the enactment of this statute, on the 
 Introduction of paper pleadings, they followed in 
 the language as well as in other respects the 
 style of the records, which were drawn up in 
 Latin. This technical language continued in 
 use till the time of Cromwell, when by a statute 
 the records were directed to be in English ; but 
 this act was repealed at the restoration by 
 Charles II., the lawyers finding it difficult to 
 express themselves as well and as concisely in 
 the vernacular as in the Latin tongue ; and the 
 language of the law continued as before till 
 about the year 1730, when the statute of 4 Geo. 
 II. c. 86, was passed. It provided that both the 
 pleadings and the records should thenceforward 
 be framed in English. The ancient terms and 
 expressions which had been so long known in 
 French and Latin were now literally translated 
 into English. The translations of such terms 
 and phrases were found to be exceedingly ridicu- 
 lous. Such terms as nisi prius, habeas corpus, 
 fieri facias, mandamus, and the like, are not 
 capable of an English dress with any degree of 
 Beriousness. They are equally absurd in the 
 manner they are employed in Latin ; but use, and 
 the fact that they are in a foreign language, have 
 made the absurdity less apparent. 
 
 By statute of 6 Geo. II. c. 14, passed two years 
 after the last-mentioned statute, the use of tech- 
 nical words was allowed to continue in the usual 
 language, — which defeated almost every benefi- 
 cial purpose of the former statute. In changing 
 from one language to another, many words and 
 technical expressions were retained in the new, 
 which belonged to the more ancient language ; 
 and not seldom they partook of both. This, to 
 the unlearned student, has given an air of confu- 
 sion and disfigured the language of the law. It 
 has rendered essential, also, the study of the 
 Latin and French languages. This, perhaps, is 
 not to be regretted, as they are the keys which 
 open to the ardent student vast stores of knowl- 
 edge. In the United States, the records, plead- 
 ings, and all law proceedings are in the English 
 language, except certain technical terms which 
 retain their ancient French and Latin dress. 
 
 Agreements, contracts, wills, and other in- 
 struments, may be made in any language, and 
 will be enforced. Bac. Abr. Wills (D 1). 
 An English court, having to construe a con- 
 tract made in a foreign country and foreign 
 language, must obtain a translation of the in- 
 strument and an explanation of the terms of 
 art, if any ; 10 H. L. C. 624. And a slander 
 spoken in a foreign language, if understood 
 by those present, or a libel published in such 
 language, will be punished as if spoken or 
 written in the English language ; Bac. Abr. 
 Slander, (D 3) ; 1 RoUe, Abr. 74 ; 6 Term, 
 163. For the construction of language, see 
 articles Construction ; Interpretation ; 
 Jacob, Intr. to the Com. Law Max. 46. 
 
 Among diplomatists, the French language 
 is the one commonly used. At an early 
 period, the Latin was the diplomatic language 
 in use in Europe. Towards the end of the 
 
 fifteenth century that of Spain gained the as- 
 cendency, in consequence of the great influ- 
 ence which that country then exercised in 
 Europe. The French, since the age of Louis 
 XIV., has become the almost universal di- 
 plomatic idiom of the civilized world ; though 
 some states use their national language in 
 treaties and diplomatic correspondence. It 
 is usual in these cases to annex to the papers 
 transmitted a translation in the language of 
 the opposite party, wherever it is understood 
 this comity will be reciprocated. This is the 
 usage of the Germanic Confederation, of 
 Spain, and of the Italian courts. When 
 nations using a common language, as the 
 United States, and Great Britain, treat with 
 each other, such language is used in their di- 
 plomatic intercourse. 
 
 See, generally, 3 Bla. Com. 323; 1 Chit. 
 Cr. L. 415 ; 2 Key, Inst.' jud. de I'Angle- 
 terre, 211, 212. 
 
 LANGTTIDTTS (Lat.). In Practice. 
 The name of a return made by the sheriff 
 when a defendant, whom he has taken by 
 virtue of process, is so dangerously sick that 
 to remove him would endanger his life or 
 health ; 3 Chit. Pr. 249, 358 ; T. Chitty, 
 Forms, 753. 
 
 IiANZAS. In Spanish Lavr. A cer- 
 tain contribution in money "paid by the gran- 
 dees and other high officers in lieu of the sol- 
 diers they ought to furnish government in 
 time of war. 
 
 LAPSE. In Ecclesiastical Iiaw. The 
 transfer, by forfeiture, of a right to present 
 or collate to a vacant benefice from a person 
 vested with such right to another, in conse- 
 quence of some act of negligence by the for- 
 mer. Ayl. Par. 831. 
 
 Upon six months' neglect of the patron, the 
 right lapses to the bishop ; upon six months' 
 neglect of bishop, to archbishop ; upon his six 
 months' neglect, to king. The day on which the 
 vacancy occurs is not counted, and the six 
 months are calculated as a half-year. 3 Bum, 
 Ec. L. 355. 
 
 To glide ; to pass slowly, silently, or by 
 degrees. To slip ; to deviate from the proper 
 path. Webster, Diet. See Lapsed De- 
 vise ; Lapsed Legacy. 
 
 LAPSE PATENT. A patent issued to 
 petitioner for land. A patent for which land 
 to another party has lapsed through neglect 
 of patentee. The lapse patent relates to 
 date of original patent, and makes void all 
 mesne conveyances. 1 Wash. Va. 39, 40. 
 
 LAPSED DEVISE. A devise which 
 has lapsed, or does not take effect because of 
 the death of devisee before testator. 
 
 The subject-matter of the lapsed devise 
 will, if no contrary intention appears, be in- 
 cluded in the residuary clause (if any) con- 
 tained in the will. But, if the devise be to 
 children or other issue of devisor, and issue of 
 devisee be alive, the devise shall not lapse, if 
 no such intention appear in the will See 1 
 Vict. c. 26, §§ 25, 26, 32, 33. A devise 
 always lapses at common law if the devisee 
 
LAPSED LEGACY 
 
 49 
 
 LARCENY 
 
 dies before testator ; 3 id. 803, n. ; but in 
 many, if not all the states, if made to a son or 
 grandson of the testator, it takes effect, by 
 force of statute, in favor of his heirs, if he die 
 before testator; so in Massachusetts, in the 
 case of a devise to a child or other relative ; 
 3 Washb. R. P. 523 ; 101 Mass. 38. See 1 
 Jarman, Wills, Perkins ed. 301, n. ; Sid. 803, 
 n. ; 4Kent, 541. In regard to a lapsed devise, 
 where the devisee dies during the life of the 
 testator, the estate so devised will go to the 
 heir, notwithstanding a residuary devise. But 
 if the devise be void, as where the devisee is 
 dead at the date of the will, or is made upon 
 a condition precedent which never happens, 
 the estate will go to the residuary devisee, if 
 the words are sufficiently comprehensive; 
 2"Vern. 394; 15 Ves. 589; 3 Whart. 477; 
 1 Harr. 524; 4 Kent, 541, 542. But some 
 of the cases hold in that case, even, that the 
 estate goes to the heir ; 6 Conn. 292 ; 4 Ired. 
 Eq. 320 ; 13 Md. 415. By the English law 
 a residuary bequest operates upon all the 
 personal estate which the testator is possessed 
 of at the time of his death, and will include 
 such as would have gone to pay specific lega- 
 cies which lapse or are void ; 4 Ves. Ch. 708, 
 732 ; 4 Paige, Ch. 115 ; 6 id. 600 ; 4 Hawks, 
 215 ; 1 Dana, 206 ; 1 D. & B. Eq. 115, 116 ; 
 82 Penn. 428 ; 1 Jarm. Wills, 585-599. 
 
 LAPSED LEGACY. A legacy which, 
 on account of the death of the legatee before 
 the period arrives for the payment of the 
 legacy, lapses or deviates from the course 
 prescribed by the testator, and falls into the 
 residuum. 1 Williams, Ex. 1036; 10 S. & 
 R. 351. 
 
 A distinction exists between a lapsed devise 
 and a lapsed legacy. A devise which lapses 
 does not fall into the residue unless so pro- 
 vided by the will, but descends to the heir at 
 law; on the contrary, personal property 
 passes by the residuary clause, where it is not 
 otherwise disposed of; 2 Bouv. Inst. 2158- 
 2161. See Lapsed Devise. 
 
 LARCENY. In Criminal Law. The 
 
 wrongful and fraudulent taking and carrying 
 away by one person of the mere personal 
 goods of another from any place, with a 
 felonious intent to convert them to his the 
 taker's use, and make them his property 
 without the consent of the owner. 2 East, 
 PI. Or. 553 ; 4 Wash. C. C. 700. Robbery is 
 a form of compound larceny ; 2 Bish. Cr. L. 
 757; 23 Ind. 21. 
 
 In a recent English case, Mr. Baron Parke said 
 that this definition, which was the most complete 
 of any, was defective, in not stating what is the 
 meaning of the word " felonious," which, he said, 
 "may he explained to mean that there is no 
 color of right or excuse for the act; and the 
 'intent' must be, to deprive the owner, not 
 temporarily, but permanently, of his property." 
 Eegina vs. Holloway, 2 C. & K. 942 ; 1 Den. Cr. 
 Cas. .370 ; Tempi. & M. 40. It is safer to be 
 guided by the cases than by the definitions given 
 by text-writers. Per Coltman, J. Several defl- 
 nitioBs are collected by Mr. Bishop, 2 Cr. Law, 
 § 675, n., to which reference is made. . 
 Vol. IL— 4 
 
 Larceny was formerly in England, and still is, 
 perhaps, in some states, divided into grand and 
 petit or petty larceny, according as the value of 
 the property taken was great or small ; 2 East, 
 PI. Cr. 736 ; 3 M'Cord, 187 ; 3 Hill, N. T. 395 ; 
 6 id. 144 ; 1 Hawks, 463 ; 8 Blackf. 498. Yet in 
 England this distinction is now abolished, by 7 
 & 8 Geo. IV. c. 29, § 2 ; and the same is true of 
 many of the United States, although in some a 
 difference is made, similar in theory, between 
 cases where the amount stolen is more and where 
 it is less than one hundred dollars or some fixed 
 sum. 
 
 Compound larceny is larceny under circum- 
 stances which, in view of the law, aggravate 
 the crime. The law in relation to this branch 
 of larceny is to a great extent statutory. 
 
 The property of the owner may be either 
 general ; 1 C. & K. 518 ; 2 Den. Cr. Cas. 449 ; 
 or special; 10 Wend. 165; 14 Mass. 217; 13 
 Ala. N. s. 153; 21 Me. 14; 8 Tex. 115; 4 
 Harr. Del. 570 ; 6 HiU, 144 ; 9 C. & P. 44. 
 
 There must be a taking against the consent 
 of the owner; 8 C. & P. 291 ; 9 id. 365 ; 1 
 Den. Cr. Cas. 381 ; 2 Ov. 68 ; 9 Yerg. 198 ; 
 20 Ala. N. s. 428 ; 1 Rich. 30; 2 N. & M'C. 
 174; Coxe, N. J. 439; and the taking will 
 uot be lai-ceny if consent be given, though ob- 
 tained by fraud ; 15S. &R. 93; 9C. &P. 
 741 ; 4 Taunt. 258 ; 7 Cox, Cr. Cas. 289. 
 But where one retains money paid by mistake, 
 it is larceny, for the consent of the owner in 
 parting with his property was only apparent, 
 not real ; 8 Oreg. 394 ; s. c. 34 Am. Rep. 
 590 ; 6 Hun, 121. Whenever the defendant 
 can be regarded in the light of the servant or 
 agent of the owner, he is guilty of larceny ; 
 1 Denio, 120 ; Whar. Cr. Law, §§956-971. By 
 Stat. 24 & 25 Vict. c. 96; a bailee who fraudu- 
 lently converts the property entrusted to him, 
 to his own use is guilty of larceny ; Cox & 
 Saunders, Crim. Law, 26, 27. When the 
 possession of an article is intrusted to a per- 
 son, who carries it away and appropriates it, 
 this is no larceny; 24 E. L. & Eq. 562; 4 
 C. & P. 545 ; 5 id. 533 ; 1 Pick. 375 ; 20 
 Ala. N. s. 428 ; 17 N. Y. 11^ ; see 2 M'Mull. 
 382 ; 2 C. & K. 983 ; 4 Mo. 461 ; S3 Me. 
 127 ; 11 Cush. 483 ; 13 Gratt. 803 ; 11 Tex. 
 769 ; but when the custody merely is parted 
 with, such misappropriation is a larceny ; 6 
 T. B. Monr. 130; 1 Denio, 120; 11 Q. B. 
 929 ; 1 Den. Cr. Cas. 584. 
 
 The decisions have not been entirely uniform 
 as to whether the fraudulent retention of money 
 delivered to be changed, is larceny. It has been 
 held in England, not to be so, but here the con- 
 trary view has been taken ; 56 N. T. 394 ; 25 
 Minn. 66 ; s. c. 33 Am. Rep. 455, n. See 9 C. & 
 P. 741 ; 11 Cox's Cr. Cas. 32. 
 
 The_ taking must be in the county where 
 the criminal is to be tried ; 9 C. & P. 29 ; 
 Ry. & M. 349. But when the taking has 
 been in the county or state, and the thief is 
 caught with the stolen property in another 
 county than that where the theft was com- 
 mitted, he may be tried in the count;^ where 
 arrested with the goods; as, by construction 
 of law, there is a fresh taking in every county 
 in which the thief carries the stolen property ; 
 
LAS PARTIDAS 
 
 50 
 
 LATHE, LATH 
 
 7 Mete. 175. Whether an indictment for 
 larceny can be supported where the goods are 
 proved to have been originally stolen in another 
 state, and brought thence into the state vfhere 
 the indictment is found, is a point on which 
 the decisions are contradictory. Where pro- 
 perty was stolen in one of the . British Pro- 
 vinces and brought by the thief into Massa- 
 chusetts, it was held not larceny there ; 8 Gray, 
 484. See, contra, 11 Vt. 650. 
 
 There must be an actual removal of the 
 article; 1 Leach, 236, n., 320 ; 3 Greenl. Ev. 
 § 154 ; 7 C. & P. 552 ; 8 id. 291 ; 8 Ala. K. 
 s. 828; 12 Ired. 157; 9 Yerg. 198; but a 
 very slight removal, if it amount to an actual 
 taking into possession, is sufficient ; 2 East, 
 PI. Cr. 556, 617; 1 C. & K. 245 ; Dearsl. 
 421. 
 
 The property must be personal ; and there 
 can be no larceny of things affixed to the soil ; 
 1 Hale, PI. Cr. 510; 11 Ired. 477; 8 C. & 
 P. 293; 35 Cal. 671; 54 Ala. 238; but if 
 once severed by the owner, a third person, or 
 the thief himself, as a separate transaction, it 
 becomes a subject of larceny; 11 Ired. 70; 
 3 Hill, N. Y. 395 ; 1 Mod. 89 ; 2Kolle, 89 ; 
 7 Taunt. 188. The common law rule has 
 been modified from time to time in England, 
 so as to afford protection to things fixed to 
 the freehold. The rule was never satisfactory, 
 and the courts in modern times have been in- 
 clined to confine it within the narrowest limits ; 
 30 Am. Rep. 159, n. ; s. o. 4 Tex. Ct. App. 
 26; 11 Ohio, 104. It must be of some value, 
 though but slight ; 4 Rich. 356 ; 3 Harr. Del. 
 563; 7 Mete. 475. See 8 Penn. 260; 6 
 Johns. 103 ; 9 C. & P. 347. At common 
 law there cannot be larceny of animals, in 
 which there is neither an absolute nor a quali- 
 fied property, asheasts feroe naturae; 1 Greene, 
 106 ; 7 Johns. 16 ; 1 C. & K. 494 ; but other- 
 wise of animals reclaimed or confined, as deer, 
 or rabbits in a park, fish in a tank, pheasants, 
 ete. , in a mew ; all valuable domestic animals, 
 and all animals domitcB natures, which serve 
 for food. But all other animals which do not 
 serve for food, as dogs, unless taxed, are not 
 subjects of larceny. JBut oysters, when planted 
 for use, are so, as is the flesh of dead animals ; 
 1 Whart. Cr. Law, §§ 864-875. But under 
 statute in some of the states there may be 
 larceny of dogs, and actions may be main- 
 tained for injury to them ; 4 Parker, C. C. 
 386; 27 Ala. 480; 11 Kans. 480; s. c. 15 
 Am. Rep. n. ; see article in 2 Alb. Law Jour. 
 101. 
 
 See Hale, Hawkins, Pleas of the Crown ; 
 Wharton, Bishop, Gabbett, Russell, Criminal 
 Law ; Roscoe, Criminal Evidence. 
 
 LAS PARTIDAS. The name of a code 
 of Spanish law. It is sometimes called las 
 siete partidas, or the seven parts, from the 
 number of its principal divisions. It is a 
 compilation from the civil law, the customary 
 law of Spain, and the canon law. It was 
 compiled by four Spanish jurisconsults, under 
 the eye of Alphonso X., A. D. 1250, and 
 published in Castile in 1263, but first pro- 
 mulgated as law by Alphonso XI., A. d. 1348. 
 
 The maritime law contained in it is given in 
 vol. 6 of Pardess. Col. of Mar. Law. He 
 follows the editions of 1807, at Paris. It has 
 been translated into English. Such of its 
 provisions as are applicable are in force in 
 Florida, Louisiana, and Texas. 1 Bla. Com. 
 66 ; 1 Rec. 354. 
 
 LASCIVIOUS CARRIAGE. Jn Con- 
 necticut, A term including those wanton 
 acts between persons of different sexes, who 
 are not married to each other, that flow from 
 the exercise of lustful passions, and which are 
 not otherwise punished as crimes against chas- 
 tity and public decency. 2 Swift, Dig. 348 ; 
 2 Swift. Syst. 831. It includes, also, inde- 
 cent acts by one against the will of another. 
 5 Day, 81. 
 
 LAST HEIR. He to whom the lands 
 come if they escheat for want of lawful heirs : 
 viz., sometimes the lord of whom the lands 
 are held, sometimes the king. Bract, lib. 5, 
 c. 17. 
 
 LAST SICKNESS. That of which a 
 person dies. 
 
 The expenses of this sickness are generally 
 entitled to a preference in payment of debts 
 of an insolvent estate. La. Civ. Code, art. 
 3166. 
 
 To prevent impositions, the statute of frauds 
 requires that nuncupative wills shall be made 
 during the testator's last sicknsss. Roberts, 
 Frauds, 556 : 20 Johns. 502. 
 
 LAST VTILL (Lat. ultima voluntas). A 
 disposition of real estate to take effect after 
 death. 
 
 It is strictly distinguishable from testament, 
 which is applied to personal estate, 1 Wms. 
 Exec. 6, n. 6, Amer. notes ; but the words 
 are generally used together, "last will and 
 testament," in a will, whether real or per- 
 sonal estate is to be disposed of. See Will. 
 
 LASTAGE. 
 
 A custom anciently exacted in some fairs and 
 markets to carry things where one will ; also a 
 custom paid for goods sold by the last (a certain 
 weight or measure) ; the ballast of a ship. 
 Cowel. Stowage room for goods in a vessel. 
 Young, Naut. Die. 
 
 LATENT AMBIGUITY. One which 
 does not appear on the iace of the instru- 
 ment. A latent ambiguity is where words 
 apply equally to two diflerent things or sub- 
 ject matters; 15 M. & W. 561; but where 
 the parties may have intended either of the 
 two things in dispute, the term does not ap- 
 ply ; 10 Ohio, 534. See Ambiguity; 
 Maxims, Ambiguities. 
 
 LATERAL SUPPORT. A person's 
 right to the support of the land immediately 
 around his house is not so much an easement, 
 as it has been called, as it is the ordinary right 
 of enjoyment of property. Where a house 
 IS injured as an indirect effect of the improper 
 working of mines, the right of action arises 
 at the time the mischief is felt, and the stat- 
 ute of limitations runs from that time ; 9 H. 
 L. 503. See Support 
 
 LATHE, LATH (L. Lat. laestrum or 
 
LATIDEMEO 
 
 51 
 
 LAW 
 
 leda. Law Fr. and Eng. Diet.). A division 
 of certain counties in England, intermediate 
 between a county or shire and a hundred, 
 sometimes containing three or four hundreds, 
 as in Kent and Sussex. Cowel. But in Sus- 
 sex the word used for this division is rape. 
 1 Bla. Com. 116. There was formerly a 
 lathe-reeve or bailiff in each lathe. Id. This 
 division into lathes continues to the present 
 day. See 12 E. 244. In Ireland, the lathe 
 was intermediate between the tything and the 
 hundred. Spencer, Ireland. See T. L. 
 
 IiATIDEMEO. In Spanish Law. 
 
 The tax paid by the possessor of land held 
 by quit-rent or emphyteusis to the owner of 
 the estate, when the tenant alienates his 
 right in the property. 
 
 LATIPUNDIXTM(Lat.). In Civil 
 Laiv. Great or large possessions ; a great or 
 large field ; a common. Ainsworth. A great 
 estate made up of smaller ones (^fundis), 
 which began to be common in the latter times 
 of the empire. Schmidt, Civ. Law, Introd. 
 p. 17. 
 
 LATIPUNDTIS (Lat. late possidens). A 
 possessor of a large estate made up of smaller 
 ones. Du Cange. 
 
 LATITAT (Lat. he lies hid). In Eng- 
 lish Law. The name of a writ calling a de- 
 fendant to answer to a personal action in the 
 king's bench. It derives its name from a 
 supposition that the defendant lurks and lies 
 hid, and cannot be found in the county of 
 Middlesex (in which the said court is holden) 
 to be taken there, but is gone into some other 
 county, and therefore requiring the sheriff to 
 apprehend him in such other county. Fitz. 
 N. B. 78. Abolished by stat. 2 Wm. IV. 
 c. 39. 
 
 LIATTDIMIUM, , LAUDATIOREM 
 (Lat. a laudando domino) . A fiftieth part 
 of the purchase-money or (if no sale) of the 
 value of the estate paid to the landlord (domi- 
 nus) by a new emphyteuta on his succession 
 to the estate, not as heir, but as singular suc- 
 cessor. Voetius, Com. ad Pand. lib. 6, tit. 
 3, §§ 26-35 ; Mack. C. L. 297. ' 
 
 In Old English Law. The tenant paid 
 a laudimium or acknowledgment-money to 
 the new landlord on the death of the old. See 
 Blount, Acknowledgment-Money. 
 
 LAUNCH. The movement by which a 
 ship or boat descends from the shore into the 
 water when she is first built, or afterwards. 
 
 A large, long, low. flat-bottomed boat. 
 Mar. Diet. The long-boat of a ship. E. H. 
 Dana. A small vessel employed to carry the 
 cargo of a large one to-and from the shore. 
 
 The goods on board of a launch are at the 
 risk of the insurers till landed ; 5 Mart. La. 
 K. s. 387. The duties and rights of the mas- 
 ter of a launch are the same as those of the 
 master of a lighter. 
 
 When the master of a vessel agreed to take 
 cotton on board his vessel from the cotton- 
 press, and employed a steam-lighter for that 
 purpose, and the cotton was lost by an explo^ | 
 
 sion of the steam-boiler of the lighter, it was 
 held that his vessel was liable in rem for the 
 loss; 23 Bost. L: Rep. 277. 
 
 LAW. That which is laid down; that 
 which is established. A rule or method of 
 action, or order of sequences. 
 
 The rules and methods by which society 
 compels or restrains the action of its members. 
 
 The aggregate of those rules and principles 
 of conduct which the governing power in a 
 community recognizes as the rules and princi- 
 ples which it will enforce or sanction, and 
 according to which it will regulate, limit, or 
 protect the conduct of its members. 
 
 A rule of civil conduct prescribed by the 
 supreme power in a state. 1 Steph. Com. 25. 
 
 A rule or enactment promulgated by the 
 legislative authority of a state; a long- 
 established local custom which has the force 
 of such an enactment ; 10 Pet. 18. 
 
 The doctrines and procedure of the com- 
 mon law of England and America, as distin- 
 guished from those of equity. 
 
 An oath. So used in the old English prac- 
 tice, by which wager of law was allowed. 
 See Wager of Law. 
 
 Perhaps few terms whose use requires equal 
 precision serve in so many diverse meanings as 
 the term lav*^. In its root it signifies that which 
 is laid down, \hat which is established. "In the 
 largestsen8e,''fiaya Montesquieu(Espritdes Lois, 
 b. 1, oh. 1), "iaws are the necessary relations 
 which arise from the nature of things ; and, in 
 this sense, all beings have their laws, God has 
 his laws, the material universe has its laws, 
 intelligences superior to man have their laws, 
 animals have their laws, man has his laws. In 
 this sense, the idea of a command proceeding 
 from a superior to ah inferior is not necessarily 
 involved in the term law. It is frequently thus 
 used to denote simply a statement of a constant 
 relation of phenomena. The laws of science, 
 thus, are hut generalized statements of observed 
 facts." " It is a perversion of language," says 
 Paley, " to assign any law as the efficient opera^ 
 tive cause of any thing. A law presupposes an 
 agent : this is only the mode aecordlng to which 
 an agent proceeds." 
 
 In its relation to human affairs there is a 
 broad use of the term, in which it denotes any of 
 those rules and methods by which a society 
 compels or restrains the action of its members. 
 Here the Idea of a command is more generally 
 obvious, and has usually been thought an essen- 
 tial element in the notion of human law. 
 
 A distinction is to he observed in the outset 
 between the abstract and the concrete meaning 
 of the word. That which is usually intended by 
 the term " laws" is not coextensive with that 
 which is intended by the term " law." In the 
 broadest sense which it bears when used in the 
 abstract, law is a science. It treats of the theory 
 of government, the relation of states to each 
 other and to individuals, and the rights and 
 obligations of states, of individuals, and of arti- 
 ficial persons and local communities among 
 themselves and to each other. 
 
 An analysis of the science of law presetits a 
 view, first, of the rights of persons, distinguish- 
 ing them as natural persons and artificial per- 
 sons, or bodies politic or corporations. These 
 rights are deemed either absolute, as relating to 
 the enjoyment of personal security, liberty, and 
 of prlvataj^roperty, or, on the other hand, as 
 relcUive, — takt is, arising out of the relation in 
 
LAW 
 
 52 
 
 LAW 
 
 which several persons stand. These relations 
 are either (1) public or political, viz. : the rela- 
 tion of magistrates and people ; or, (2) private, 
 as the relations of master and servant, husband 
 and wife, parent and child, guardian and ward, 
 to which might he added relations arising out of 
 private contracts, such as partnership, principal 
 and agent, and the like. Under the head of the 
 rights of persons as arising out of public rela- 
 tions may be discussed the constitution and 
 polity of the state, the distribution of powers 
 among the various departments of the govern- 
 ment, the political status of individuals, as 
 aliens, citizens, and the like. 
 
 In the second place, the analysis presents the 
 rights of property, which is divided into personal 
 property or chattels, viz., that which is movable, 
 and real property, or that which is immovable, 
 viz., lands, including nearly all degrees of in- 
 terest therein, as well as such chattels as by a 
 peculiar connection with land may be deemed to 
 have lost their character as legally movable : 
 these rights of property are viewed in respect to 
 the origin of title, the transmission of title, and 
 the protection of the enjoyment thereof. 
 --<[n the third place, the analysis presents a view 
 of private wrongs, or those injuries to persons 
 for which the law provides a redress for the 
 aggrieved party ; and under this head may be 
 considered the tribunals through which the pro- 
 tection of rights or the redress of wrongs may 
 be obtained, and the various modes of procedure 
 to those ends. 
 
 Lastly, the analysis presents a view of public 
 wrongs, or crimes and misdemeanors, in which 
 may be considered the theory of crime and pun- 
 ishment, the persons capable of committing 
 crimes, the several degrees of guilt of principals 
 and accessaries, the various crimes of which the 
 law takes cognizance, — as, those against re- 
 ligion, those against the state and its govern- 
 ment, and those against persons and property, — 
 with the punishment which the law affixes to 
 each, and also the tribunals and precedure by 
 which crimes threatened m'ay be prevented, and 
 crimes committed may be punished ; Bla. Com. 
 
 In a stricter sense, but still in the abstract, 
 law denotes the aggregate of those rules and 
 principles of conduct which the governing power 
 In a community recognizes as the rules and 
 principles which it will enforce or sanction, and 
 according to which it will regulate, limit, or 
 protect the conduct of members of the com- 
 munity. 
 
 It is the aggregate of legal rules and princi- 
 ples, as distinguished from any particular rule 
 or principle. No one statute, nor all statutes, 
 constitute the law of the state ; for the maxims 
 of the courts and the regulations of municipal 
 bodies, as well as, to some extent, the universal 
 principles of ethics, go to make up the body of 
 the law. It includes principles, which rest in 
 the common sense of justice and right, as well 
 as positive rules or regulations, which rest in 
 ordinance. It is the aggregate of the rules or 
 principles only which the governmg power in 
 the community recognizes, because that power, 
 whether it be deemed as residing in a monarch, 
 an aristocracy, or in the people at large, is the 
 source of the authority and the sanction of those 
 rules and principles. It is the aggregate of those 
 rules and principles which are recognized as the 
 law by that power, rather than those which are 
 actually enforced in all cases ; for a statute is 
 none the less a law because the community for- 
 bear to enforce it, so long as it is officially recog- 
 nized by them as that which, in theory at least, 
 should be enforced ; nor does a departure from 
 the law by the governing power in itself abrogate 
 
 the law. It comprises not only those rules and 
 principles which are to be enforced, but also 
 those which are simply permissive ; for a very 
 large part even of modem statute-law — which is 
 commonly defined as a rule commanding or pro- 
 hibiting — in reality neither commands nor pro- 
 hibits, except in the most distant and indirect 
 sense, but simply authorizes, permits, or ^sanc- 
 tions ; and this is much more generally true of 
 those principles of the law which rest in custom 
 and the adjudications of the courts. It is only 
 those which relate to the members of the commu- 
 nity in question ; for laws, as such, have no 
 extra-territorial operation. 
 
 The earliest notion of law was not an enumera- 
 tion of a principle but a judgment in a particular 
 case. When pronounced in the early ages, by a 
 king, it was assumed to be the result of direct 
 divine inspiration. Afterwards came the notion 
 of a custom which a judgment affirms, or pun- 
 ishes its breach. In the outset, however, the 
 only authoritative statement of right and wrong 
 is a judicial sentence rendered after the fact has 
 occurred. It does not presuppose a law to have 
 been violated, but is enacted for the first time 
 by a higher form into the judge's mind at the 
 moment of adjudication. Maine, Anc. Law, 
 (Dwight's ed.) pp. xv. 5. 
 
 The idea of law has commOnly.been analyzed 
 as composed of three elements : (1) a commancl 
 of the lawgiver, which command must prescribe 
 not a single act merely, but a series or class of 
 acts ; (2) an obligation imposed thereby on the 
 citizen ; (3) a sanction threatened in the event 
 of disobedience ; Benth. Frag, on Gov. ; Austin, 
 Province, etc. ; Maine, Anc. Law. Thus, muni- 
 cipal law is defined as " a rule of civil conduct 
 prescribed by the supreme power in the state, 
 commanding what is right and prohibiting what 
 is wrong." 1 Bla. Com. 44. The latter clause 
 of this definition has been much criticized. Mr. 
 Chitty modifies it to " commanding what shall 
 be done or what shall not be done " (id. note) ; 
 and Mr. Stephen omits it, defining law as " a 
 rule of civil conduct prescribed by the supreme 
 power in a state." 1 Stephen, Com. 35. It is 
 also defined as a rule of conduct contained in the 
 command of a sovereign addressed to the subject. 
 (Encyc. Brit.) These definitions, though more 
 apt in reference to statutes and edicts than to the 
 law in general, seem, even In reference to the 
 former sort of law, to look rather at the usual 
 form than the invariable essence of the thing. 
 The principle of law, that a promise without a 
 consideration is void, neither commands men to 
 provide a consideration for every promise nor for- 
 bids them to promise without consideration, for 
 this is lawful ; nor does it forbid them to fulfil 
 such promises. It simply amounts to this, that 
 if men choose to break such promises, society will 
 interfere to enforce them. And even many stat- 
 utes have no form of a command or prohibition ; 
 and, moreover, some that are such in form are 
 not in reality. An enactment that no action shall 
 be brought on a simple contract after the lapse of 
 six years from the time the cause of action ac- 
 crued cannot aptly be said to command men to 
 bring actions within six years, nor even , in fact, to 
 forbid them to bring such actions after that time ; 
 for it is still lawful to sue on an outlawed de- 
 mand, and, if the defendant do not object, the 
 plamtiif may succeed. It may be deemed a com- 
 mand in so far as it is a direction to the court to 
 dismiss such actions ; but as a rule of civU con- 
 duct it amounts simply to this, that when an ob- 
 ligation has become stale to a certain degree, 
 society will sanction the debtor in repudiating it. 
 
 When used in theconcrete, the term usually has 
 relerence to statutes or expressions of the legis- 
 
LAW 
 
 63 
 
 LAW COURT OF APPEALS 
 
 lative will. " The laws of a state," observes Mr. 
 Justice Story, " are more usually understood to 
 mean the rules and enactments promulgated by 
 the legislative authority thereof, or long-estab- 
 lished local customs having the force of laws." 
 16 Pet. 18. Hence, he argues, " in the ordinary 
 use of language it will hardly be contended that 
 the decisions of courts constitute laws." In the 
 ■*" Civil Code of Louisiana they are defined to be 
 " the solemn expression of the legislative will." 
 
 But, as has already been said, " law " in the ab- 
 stract involves much more. Thus, a reference in 
 a statute to " the cases provided by law " includes 
 not only those cases provided by former statutes, 
 but also those contemplated by the common or 
 unwritten law ; 18 N. Y. 115. 
 
 The law of the land, an expression used in 
 Magna Charta and adopted in most of the earlier 
 constitutions of the original states, means, bow- 
 ever, something more than the legislative will : 
 it requires the due and orderly proceeding of 
 justice according to the established methods. 
 See Doe Process op Law ; 8 Gray, 329. 
 
 When the term law is used to denote enact- 
 ments of the legislative power, it is frequently 
 confined, especially by English writers, to per- 
 manent rules of civil conduct, as distinguished 
 from other acts, such as a divorce act, an appro- 
 priation bill, an estates act. Report of Eng. 
 Stat. L. Com., Mar. 1S56. 
 
 In the United States, the organic law of a state 
 is termed the constitution, and the term " laws" 
 generally designates statutes or legislative enact- 
 ments, in contradistinction to the constitution. 
 See Statutes. 
 
 Law, as distinguished from equity, denotes 
 the doctrine and procedure of the common law 
 of England and America, from which equity is 
 a departure. 
 
 Distinct courts of equity still exist in New 
 Jersey, Maryland, Kentucky, Delaware, Ten- 
 nessee, Mississippi, and Alabama. The judges 
 of the common law courts are invested with the 
 powers of a court of chancery in Maine, New 
 Hampshire, Vermont, Massachusetts, Rhode 
 Island, Connecticut, Pennsylvania, Virginia, 
 West Virginia, North Carolina, Georgia, Illinois, 
 Texas, Florida, Michigan, Iowa, Arlsausas, and 
 Oregon. In all the other states ' the distinction 
 between law and equity is abolished. 
 
 Law is also used in contradistinction to fact. 
 Questions of law are, in general, for the decision 
 of the court ; while it is for the jury to pass upon 
 questions of fact. 
 
 In respect to the ground of the authority of 
 law, it is divided as natural law, or the law of 
 nature or of God, and positive law. 
 
 Arbitrary law. A law or provision of law 
 so far removed from considerations of abstract 
 justice that it is necessarily founded on the 
 mere will of the law-making power, so that it 
 is rather a rule established than a principle 
 declared. The principle that an infant shall 
 not be bound by his contract is not arbitrary ; 
 but the rule that the limit of infancy shall be 
 twenty-one years, not twenty nor twenty-two, 
 is arbitrary. 
 
 The term is also sometimes used to signify 
 an unreasonable law, — one that is in violation 
 of justice. 
 
 Irrevocable lares. All laws which have 
 not in their nature or in their language some 
 limit or termination provided are, in theory, 
 perpetual ; but the perpetuity is liable to be 
 defeated by subsequent abrogation. It has 
 sometimes been attempted to secure an abso- 1 
 
 lute perpetuity by an express provision for- 
 bidding any abrogation. But it may well be 
 questioned whether one generation has power 
 to bind their posterity by an irrevocable law. 
 See this subject discussed by Bentham, 
 Works, vol. 2, 402-407; and see Dwarris, 
 Stat. 479. 
 
 Municipal laiB is a system of law proper to 
 any single state, nation, or community. See 
 McNiciPAL Law. 
 
 A penal law is one which inflicts a penalty 
 for its violation. 
 
 Positive law is the system naturally estab- 
 lished by a community, in distinction from 
 natural law. See Positive Law. 
 
 Private law is a term used to indicate a 
 statute which relates to private matters which 
 do not concern the public at large. 
 
 A prospective law or statute is one which 
 applies only to cases arising after its enact- 
 ment, and does not affect that which is already 
 past. 
 
 A public law is one which affects the pub- 
 lic, either generally or in some classes. 
 
 A retrospective law or statute is one that 
 turns backward to alter that which is past or 
 to affect men in relation to their conduct be- 
 fore its enactment. These are also called 
 retroactive laws. In general, whenever a 
 retroactive statute would take away vested 
 rights or impair the obligation of contracts, 
 it IS in so far void, because opposed to the 
 constitution of the United States ; 3 Dall. 
 391 . But laws which only vary the remedies, 
 or merely cure a defect in proceedings other- 
 wise fair, are valid; 10 S. & B,. 102, 103; 
 15 id. 72 ; 2 Pet. 380, 627 ; 8 id. 88 ; 11 id. 
 420. See Ex Post Facto. 
 
 For mattters peculiar to the following 
 classes of laws, see their several titles : — 
 
 Agrarian Laws ; Brehon Law ; Ca- 
 non Law ; Civil Law ; Codes ; Colo- 
 nial Law ; Commercial Law ; Consti- 
 tutional Law ; Conseutudinaky Law ; 
 Corn Laws ; Criminal Laws ; Crown 
 Law ; Ecclesiastical Law ; Edictal 
 Law; Ex Post Facto Laws; Fecial 
 Law ; Feudal Law ; Foreign Law ; 
 Game Laws ; Gentoo Law ; Green 
 Cloth Law; Hindu Law; Insolvency; 
 Laws of Oleron ; Mahommedan Law ; 
 Martial Law; Military Law; Ehodian 
 Law ; Statutes op Wisbuy. 
 
 See, generally, Maine, Bentham, Austin. 
 
 LAW BORGH. In Old Scotch Law. 
 
 A pledge or surety for appearance. 
 
 LAW-BURROWS. In Scotch Law. 
 Security for the peaceful behavior of a party ; 
 security to keep the peace. This process was 
 much resorted to by the government of 
 Charles II. for political purposes. 
 
 LAW COURT OP APPEALS. In 
 American Law. An appellate tribunal, 
 formerly existing in the state of South Caro- 
 lina, for hearing appeals from the courts' of 
 law. 
 
LAW DAY 
 
 54 
 
 LAW OF NATURE 
 
 LAVT DAY. The day fixed in a mort- 
 gage or defeasible deed for the payment of 
 the debt secured. 24 Ala. n. s. 149 ; 10 
 Conn. 280 ; 21 N. Y. 345. This does not 
 occur now until foreclosure, and the use of 
 the term is confusing; 21 N. Y. 343. 
 
 In Old English Law. Law day or laee 
 day denoted a day of open court ; especially 
 the more solemn courts of a county or hun- 
 dred. The court-leet, or view of frankpledge. 
 IiA.'W FRENCH. From the time of 
 William the Norman down to that of Edward 
 III., all public proceedings and documents in 
 England, including the records of the courts, 
 the arguments of counsel, and the decisions 
 of the judges, were in the language of the 
 Norman-French. After Latin and English 
 were substituted in the records and proceed- 
 ings, however, the cases and decisions con- 
 tinued until the close of the seventeenth cen- 
 tury to be reported in French ; the first 
 reports published in English being those of 
 Styles in 1658. The statutes of the reign of 
 Henry IIL and some of the subsequent reigns 
 are partly or wholly in this language ; but 
 English was substituted in the reign of Henry 
 VU. Of the law-treatises in French, the 
 Mirrour and Britton, and the works of Little- 
 ton, may be mentioned. 
 
 IiATV OP THE LAND. Due process of 
 law. 2 Yerg. 50; 6 Penn. 86; 73 id.. 370; 
 60 Me. 504 ; 4 Hill, N. Y. 140. See Due 
 Process of Law. 
 
 LATW LATIN. Edward III. substituted 
 the Latin language for the Norman- French 
 in the records, and the English in other pro- 
 ceedings. The Latin was used by virtue of 
 its being the language of scholars of all Eu- 
 ropean nations ; but, in order to adapt it to 
 the purpose of the profession, the English 
 terms of legal art in most frequent use were 
 Latinized by the simple addition of a Latin 
 termination, and the diverse vocabulary thus 
 collected was arranged in English idioms. 
 But this barbarous dialect commended itself 
 by a semblance of scholarly sound, and more 
 by the precision which attaches to technical 
 terms that are never used in popular language. 
 During the time of Cromwell, English was 
 used ; but with the restoration Latin was re- 
 instated, and held its place till 4 Geo. II. ch. 
 26, when it -was enacted that, since the com- 
 mon people ought to know what was done 
 for and against them, proceedings should be 
 in English. It was found, however, that 
 certain technical terms had become so fixed 
 that by a subsequent act such words were 
 allowed to continue in use ; 6 Geo. II. ch. 14. 
 Hence a large class of Latin terms are still in 
 use, of which nisi prius, habeas corpus, lis 
 pendens are examples. Consult 3 Bla. Com. 
 318-323 ; and as to particular words and 
 phrases, Termes de la Ley ; Taylor's Law 
 Gloss. ; the Law-French and Law-Latin Dic- 
 tionary; Kelham's Die. ; DuCange. 
 
 LAW LIST. In English Law. An an- 
 nual publication of a quasi-official character, 
 
 comprising various statistics of interest in con- 
 nection with the legal profession. 
 
 LAW LORDS. In English Law. Peers 
 who have held high judicial office, or have 
 been distinguished in the legal profession. 
 Moz. & W. 
 
 LAW MERCHANT. The general body* 
 of commercial usages in matters relative to 
 commerce. Blackstone calls it the custom of 
 merchants, and ranks it under the head of 
 the particular customs of England, which go 
 to make up the great body of the common 
 law; 1 Bla. Com. 75. Since, however, its 
 character is not local, nor its obligation con- 
 fined to a particular district, it cannot with 
 propriety be considered as a custom in the 
 technical sense ; 1 Steph. Com. 54. It is a 
 system of law which does not rest exclusively 
 on the positive institutions and local customs 
 of any particular country, but consists of cer- 
 tain principles of equity and usages of trade 
 which general convenience and a common 
 sense of justice have established, to regulate 
 the dealings of merchants and mariners in 
 all the commercial countries of the civilized 
 world ; 3 Kent, 2. 
 
 These usages, being general and extensive, 
 partake of the character of rules and princi- 
 ples of law, not of matters of fact, as do 
 usages which are local or special. They con- 
 stitute a part of the general law of the land, 
 and, being a part of that law, their existence 
 cannot be proved by witnesses, but the judges 
 are bound to take notice of them ex officio ; 
 Winch, 24 ; and this application is not con- 
 fined to merchants, but extends to all persons 
 concerned in any mercantile transaction. See 
 Beawes, Ijex Mercatoria Rediviva; Caines, 
 Lex Mercatoria Americana ; Comyns, Dig. 
 Merchant (D); Chitty, Com. Law; Pardessus, 
 Droit Commercial ; Collection des Lois mari- 
 times antSrieure an dix-huitifeme Sifecle, par 
 Dupin ; Capmany, Costumbres Maritimas ; II 
 Consolato del Mare ; Us et Coutumes de la 
 Mer; Piantandia, Delia Giurisprudenze Mari- 
 tima Commeroiale, Antica e Moderna ; Valin, 
 Commentaire sur I'Ordonnance de la Marine, 
 du Mois d'Aofit, 1681 ; Boulay-Paty, Droit 
 Comm.; Boucher, Institutions au Droit Mari- 
 time; Parsons, Marit. Law; Smith, Merc. 
 Law. 
 
 LAW OP MARQUE. See Letter of 
 Marque and Reprisal. 
 
 LAW OP NATIONS. See Interna- 
 tional Law. 
 
 n ^"^y °^ NATURE. That law which 
 God, the sovereign of the universe, "has pre- 
 scribed to all men, not by any formal pro- 
 mulgation, but hy the internal dictate of 
 reason alone. It is discovered by a just con- 
 sideration of the agreeableness or disagree- 
 ableness of human actions to the nature of 
 man ; and it comprehends all the duties which 
 we owe either to the Supreme Being, to our- 
 ri^^'' ?JiV"' neighbors: as, reverence to 
 God, self-defence, temperance, honor to our 
 
LAWFUL 
 
 55 
 
 LAWYER 
 
 parents, benevolence to all, a strict adherence 
 to our engagements, gratitude, and the like ; 
 Erskine, Pr. Sc. Law, 1. 1. 1. See Ayliffe, 
 Fand. tit. 2, p. 2 ; Cicero, de Leg. lib. 1. 
 
 The primitive laws of nature may be re- 
 duced to six, namely : comparative sagacity, or 
 reason ; self-love ; the attraction of the sexes 
 to each other; the tenderness of parents towards 
 their children ; the religious sentiment ; socia- 
 bility. 
 
 When man is properly organized, he is able 
 to distinguish 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. 
 
 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 re- 
 quisite to his existence. Hence the duty to 
 watch over his own preservation. Suicide 
 and duelling are, tiierefore, contrary to this 
 law ; and a man cannot mutilate himself, nor 
 renounce his liberty. 
 
 The attraction of the sexes has been pro- 
 vided for the preservation of the human 
 race ; and this law condemns celibacy. The 
 end of marriage proves that polygamy and 
 polyandry are contrary to the law of nature. 
 Hence it follows that the husband and wife have 
 a mutual and exclusive right over each other. 
 
 Man from his birth is wholly unable to pro- 
 vide 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 na- 
 ture. The principal duties it imposes on the 
 parents are to bestow on the child all the care 
 its weakness requires, to provide for its neces- 
 sary food and clothing, to instruct it, to pro- 
 vide for its wants, and to use coercive means 
 for its good, when requisite. 
 
 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 senti- 
 ment arise all the sects and different forms of 
 worship among men. 
 
 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 ihfdl 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. 
 
 LAV? OP THE STAPLE. 
 
 Merchant. 
 
 See Law 
 
 LAWPUL. Legal. That which is not 
 contrary to law. That which is sanctioned 
 or permitted by law. That which is in ac- 
 cordance with law. The terms "lawful," 
 "unlawful," and "illegal" are used with 
 
 reference to that which is in its substance 
 sanctioned or prohibited by the law. The 
 term "legal " is occasionally used with refer- 
 ence to matter of form alone : thus, an oral 
 agreement to convey land, tliough void by 
 law, is not properly to be said to be unlaw- 
 ful, because there is no violation of law in 
 making or in performing such an agreement ; 
 but it is said to be not legal, or not in lawful 
 form, because the law will not enforce it, for 
 want of that written evidence required in 
 such cases. 
 
 LAWFUL AGE. 
 
 Majority. This usually means twenty-one 
 years, but in some of the states, for certain pur- 
 poses, a woman attains lawful age at eighteen : 
 
 4 Md. Ch. 228. 
 
 LAWFUL AUTHORITIES. 
 
 The expression " lawful authorities," used in 
 our treaty with Spain, refers to persons who ex- 
 ercised the power of making grants by authority 
 of the crown ; 9 Pet. 711. • 
 
 LAWFUL DISCHARGE. 
 
 Such a discharge In Insolvency as exonerates 
 the debtor from his debts ; 12 Wheat 370. 
 
 LAWFUL GOODS. 
 
 Whatever is not prohibited to be exported by 
 the positive law of the country, even though It 
 be countraband of war, for a neutral has a right 
 to carry such goods at his own risk ; 1 Johns. 
 Cas. 1 ; 2 id. 77 ; id. 120. 
 
 LAWFUL ISSUE. 
 
 In a devise to A for life, and on her death to 
 her lawful issue, etc., these words are to be given 
 the same eifect as " heirs ;" 3 Edw. 1 ; 21 Tex. 
 804. Under the term lawful issue, bastards can- 
 not take a remainder in a life estate to the 
 mother ; 10 B. Mou. 188. 
 
 LAWFULLY POSSESSED. 
 
 In a statute concerning forcible entry and de- 
 tainer, is equivalent to peaceably possessed : 45 
 Mo. 35. 
 
 LAW^FUL MONEY. Money which is 
 a legal tender in payment of debts : e. g. gold 
 and silver coined at the mint. 2 Salk. 446 ; 
 
 5 Mod. 7 ; 3 Ind. 358 ; 2 How. 244 ; 3 id. 
 717; 16 Ark. 83. See Hempst., 236. 
 
 LA WING OF DOGS. Mutilating the 
 fore-feet of mastiffs, to prevent them from 
 running after deer. 3 Bla. Com. 71. 
 
 LAWLESS COURT. An ancient local 
 English court, said to have been held in Essex 
 once a year, at cock-crowing, without a light 
 or pen and ink, and conducted in a whisper. 
 
 LAWLESS MAN. An outlaw. 
 _ LAWSUIT. An action at law, or litiga- 
 tion. This is, however, only the vernacular 
 expression for a case before the courts in 
 which there is a controversy between two 
 parties. Technically we speak of a suit in 
 admiralty or equity, an action at law, a prose- 
 cution in a criminal court, etc. The term 
 lawsuit may include an arbitration ; 7 Cow. 
 434. 
 
 LAWYER. One skilled in the law. 
 
 Any person who, for fee or reward, prosecutes 
 or defends causes in courts of record; or other 
 judicial tribunals of the United States, or of any 
 of the states, or whose business it is to give legal 
 
LAY 
 
 56 
 
 LEADING QUESTION 
 
 advice in relation to any cause or mattter what- 
 ever. Act of July 13, 1866, § 9, Stat, at L. 121. 
 
 liAY. In English Law. That which 
 relates to persons or things not ecclesiastical. 
 In the United States, the people are not by 
 law divided, as in England, into ecclesiastical 
 and lay. The law makes no distinction 
 between them. The word is also used in' the 
 sense of opposed to professional. Also ap- 
 plied to a share of the profits of a fishing or 
 whaling voyage, allotted to the oflicers and 
 seamen, in the nature of wages ; 3 Story, 108. 
 
 In Pleading. To state or to allege. The 
 place from whence a jury are to be sum- 
 moned is called the venue, and the allegation 
 in the declaration of the place where the 
 jury is to be summoned is, in technical lan- 
 guage, said to lay the venue. 3 Steph. Com. 
 574; 3 Bouvier, Inst. n. 2830. 
 
 LAY CORPORATION. A corporation 
 composed of lay persons or for lay purposes. 
 They are either civil or eleemosynary.* Ang. 
 & A. Corp. 28-30; 1 Bla. Com. 470. 
 
 TO LAY DAMAGES. To state at the 
 conclusion of the declaration the amount of 
 damages which the plaintiff claims. 
 
 LAY DAYS. In Maritime Law. The 
 time allowed to the master of a vessel for 
 loading and unloading the same. In the 
 absence of any custom to the contrary, Sun- 
 days are to be computed in the calculation of 
 lay days at the port of discharge ; 10 M. & 
 W. 831. Sees Esp. 121; 3 Kent, 202; 2 
 Steph. Com. 141. They diifer from De- 
 murrage, which see. 
 
 LAY PEE. A fee held by ordinary feu- 
 dal tenure, as distinguished from the eccle- 
 siastical tenure of frankalmoign, by which 
 an ecclesiastical corporation held of the donor. 
 The tenure of frankalmoign is reserved by 
 stat. 12 Car. II., which abolished military 
 tenures. 1 Bla. Com. 101. 
 
 LAY IMPROPRIATOR. Lay rector, 
 to whom the greater tithes are reserved, the 
 lesser going to the vicar. 1 Bum, Eccl. Law, 
 75, 76. 
 
 LAY INVESTITURE. See Investi- 
 ture ; Annulus et Baculus. 
 
 LAY OUT. This term has come to be 
 used technically in highway laws as embrac- 
 ing all the series of acts necessary to the com- 
 plete establishment of a highway ; 28 Conn. 
 363 ; 121 Mass. 382. See 11 Ired. 94. 
 
 LAY PEOPLE. Jurymen. Finch, Law, 
 381. 
 
 LAYMAN. In Ecclesiastical Law. 
 One who is not an ecclesiastic nor a clergy- 
 man. 
 
 LAZARET, LAZARETTO. A place, 
 selected by public authority, where vessels 
 coming from infected or unhealthy countries 
 are required to perform quarantine. See 
 Health. 
 
 LE ROI S'AVISERA, or LA REINE 
 S'AVISERA. The king will consider of 
 it. This phrase is used by the English 
 
 monarch when he gives his dissent to an act 
 passed by the lords and commons. This 
 power was last exercised in the year 1707, by 
 Queen Anne; May, P. L. ch. 18. The 
 same formula was used by the king of the 
 French for the same purpose. 1 Toullier, n. 
 52. See Veto. 
 
 LE ROI LE VEUT. The king assents. 
 This is the formula used in England, and 
 formerly in France, when the king approved 
 of a bill passed by the legislature. 1 Toul- 
 lier, n. 52. 
 
 LE ROI VEUT EN DELIBERER. 
 The king will deliberate on it. This is the 
 formula which the king of the French used 
 when he intended to veto an act of the legis- 
 lative assembly. 1 Toullier, n. 42. 
 
 LEADING A USE. A term applied to 
 a deed executed before a fine is levied, declar- 
 ing the use of the fine : i. e. specifying to 
 whose use the fine shall enure. If executed 
 after the fine, it is said to declare the use. 2 
 Bla. Com. 363. See Deed. 
 
 LEADING CASE. A case decided by 
 a court of last resort, which decides some 
 particular point in question, and to which 
 reference is constantly or frequently made, 
 for the purpose of determining the law in 
 similar questions. 
 
 Many elements go to the constitution of a 
 case as a leading case : among which are, 
 the priority of the case, the character of the 
 court, the amount of consideration given to 
 the question, the freedom from collateral mat- 
 ters or questions. The term is applied to 
 cases as leading either in a particular state 
 or at common law. A very convenient means 
 of digesting the law upon any subject is found 
 to be the selection of a leading case upon the 
 subject, and an arrangement of authorities 
 illustrating the questions decided. See B. & 
 H. Lead. Crim. Cas. 2 v. ; Smith, Lead. Cas. 
 2 V. ; Sm. L. Cas. Comm. L. ; Hare & W. 
 Sel. Dec. 2 v. ; Tudor, Cas. E. P. 1 v. ; 
 Tudor, L. Cas. M. L. 1 v.; Sedgwick, Dam- 
 ages ; Bigelow, Torts ; Eedf. & Bigel., Bills 
 & Notes ; Eedfield, Eailw. Cas., and a variety 
 of others. 
 
 The French Causes C^lfebres correspond to 
 the English state trials. 
 
 LEADING COUNSEL. That one of 
 
 two or more counsel employed on the same 
 side in a cause who has the principal man- 
 agement of the cause. Sometimes called the 
 leader. So called as distinguished from the 
 other, who is called the junior counsel. ~ 
 
 LEADING QUESTION. In Practice. 
 
 A question which puts into the witness's mouth 
 the words to be echoed back, or plainly sug- 
 gests the answer which the party wishes to 
 get from him 7 S. & E. 171 ; 4 Wend. 247. 
 in that case the examiner is said to lead him 
 to the answer. It is not always easy to deter- 
 mine what is or IS not a leading question. 
 
 J.hese questions cannot, in general, be put 
 to a witness in his examination in chief ; S 
 
LEAGUE 
 
 57 
 
 LEASE 
 
 Binn. 130; 6 id. 483; 1 PhUl. Ev. 221 ; 1 
 Stark. Ev. 123. But, in an examination in 
 chief, questions may be put to lead the mind 
 of the witness to the subject of inquiry ; and 
 they are allowed when it appears the witness 
 wishes to conceal the truth or to favor the op- 
 posite party, or where, from the nature of the 
 case, the mind of the witness cannot be di- 
 rected to the subject of inquiry without a 
 particular specification of such subject; 1 
 Campb. 43 ; 1 Stark. 100. 
 
 In cross-examinations, the examiner has 
 generally the right to put leading questions ; 
 1 Stark. Ev. 132; 3 Chitty, Pr. 892; Rose. 
 Civ. Ev. 94 ; Whart. Ev. §§ 501-504 ; but 
 not perhaps when the witness has a bias in his 
 favor; Best, Ev. 805. 
 
 LXiAGrTTB. A measure of length, which 
 consists of three geographical miles. The 
 jurisdiction of the United States extends into 
 the sea a marine league. See Acts of Con- 
 gress of June 5, 1794, 1 Story, Laws, 352; 
 and April 20, 1818, 3 Story, Laws, 1694 ; 1 
 Wait, State Papers, 195. 
 
 A conspiracy to do an unlawful act. The 
 ■ term is but litue used. 
 
 An agreement or treaty between states. 
 Leagues between states are of several kinds : 
 First, leagues offensive and defensive, by 
 which two or more nations agree not only 
 to defend each other, but to carry on war 
 against their common enemies. Second, de- 
 fensive, but not offensive, obliging each to 
 defend the other against any foreign invasion. 
 Third, leagues of simple amity, by which 
 one contracts not to invade, injure, or offend 
 the other : this usually includes the liberty 
 of mutual commerce and trade, and the safe- 
 guard of merchants and traders in each other's 
 domain. Bacon, Abr. Prerogative (D 4). 
 See CoNPEDBRACY ; Conspiracy ; Peace ; 
 Truce ; War. 
 
 LEAKAGE. The waste which has taken 
 place in liquids, by their escaping out of the 
 casks or vessels in which they were kept. 
 See 107 Mass. 140, 145. 
 
 By the act of March 2, 1799, s. 59, 1 Story, 
 Laws, 625, it is provided that there be an allow- 
 ance of two per cent, for leakage on the quantity 
 which shall appear by the gauge to be contained 
 in any cask of liquors subject to duty by the 
 gallon, and ten per cent, on all beer, ale, and 
 porter in bottles, and five per cent, on all other 
 liquors in bottles, to be deducted from the 
 Invoice quantity, in lieu of breakage ; or it shall 
 be lawful to compute the duties on the actual 
 quantity, to be ascertained by tale, at the option 
 of the importer, to be made at the time of entry. 
 
 LEAIi. Loyal ; that which belongs to the 
 law. 
 
 LEAF 7EAR. See Bissextile. 
 
 LEASE. A species of contract for the 
 possession and profits of lands and tenements 
 either for life or for a certain period of time, 
 or during the pleasure of the parties. 
 
 One of its essential properties is, that its dura- 
 tion must be for a shorter period than the dura- 1 
 tion of the interest of the lessor in the land ; for j 
 
 If he disposes of his entire interest it becomes an 
 assignment, and is not a lease. In other words, 
 the granting of a lease always supposes that the 
 grantor reserves to himself a reversion in the 
 leased premises. 
 
 And a distinction is to be noted between a 
 lease and a mere agreement for a lease. The 
 whole question, however, resolves Itself into one 
 of construction, and an Instrument is to be con- 
 sidered either a lease or an agreement for a lease, 
 according to what appears to be the intention of 
 the parties; 1 Term, 735; 26 Pick. 401; 16 
 Barb. 621 ; 9 Ad. & E. 644 ; though, generally, 
 if there are apt words of demise followed by pos- 
 session, the instrument will be held a lease; 
 5 id. 74 ; 8 N. Y. 44 ; 3 C. & P. 441 ; 8 Bingh. 
 178 ; 102 Mass. 392 ; 4 Ad. & E. 225 ; 5 B. & A. 
 322 ; otherwise, if a fuller lease is to be prepared 
 and executed before the demise is td take effect 
 and possession to be given ; 81 Vt. 172 ; 24 Wend. 
 201 ; 3 Stor. 325 ; 4 Conn. 238 ; 75 111. 44 ; L. E. 
 
 2 Ex. Div. 355 ; 5 B. & C. 41 ; 14 Abb. Pr. 373. 
 The party who leases is called the lessor, he to 
 
 whom the lease is made the lessee, and the com- 
 pensation or consideration of the lease is the 
 rent. The words lease and demise are frequently 
 used to signify the estate or interest conveyed ; 
 but they properly apply to the instrument of 
 conveyance. When a lessee parts with the 
 estate granted to him, reserving any portion 
 thereof, however small, he makes an underlease; 
 Taylor, Landl. & Ten. § 16 ; 5 Denio, 454; 36 
 N. T. 569 ; 12 Iowa, 319 ; 16 Johns. 159. 
 
 The estate created by a lease, when for years, 
 is called a term (terminus') ,hecsinBe its duration 
 is limited and determined, — its commencement 
 as well as its termination being ascertained by 
 an express agreement of the parties. And this 
 phrase signifies not only the limitation of time 
 or period granted for the occupation of the 
 premises, but includes also the estate or interest in 
 the land that passes during such period. A term, 
 however, is perfected only by the entry of the 
 lessee ; for previous to this the estate remains in 
 the lessor, the lessee having a mere right to enter, 
 which right is called an interesse termini: 1 
 Washb. E. P. 292, 297 ; 5 B. & C. Ill ; 5 Co. 
 123 6 ; Co. Litt. 46, B. : Cro. Jac. 60 ; 1 B. & Aid. 
 593 ; 1 Br. & B. 238. 
 
 Any thing corporeal or incorporeal lying in 
 livery or in grant may be the subject-matter 
 of a lease ; and therefore not only lands 
 and houses, but commons, ways, fisheries, 
 franchises, estovers, annuities, rent charges, 
 and all other incorporeal hereditaments, are 
 included in the common-law rule; Shepp. 
 Touchst. 268; 110 Mass. 175; 24 Mich. 
 279; 33 N. Y. 251; 66 Me. 229; 17 C. B. 
 Green, 130; 27 Conn. 164. Bent cannot 
 properly be said ever to issue out of chattels ; 
 
 3 H. &M. 470 ; 35 Barb. 295 ; 15 Ohio, N. s. 
 186 ; 5 Rep. 16 ; but goods, chattels, or live 
 stock upon or about real property may be 
 leased with it and a rent contracted for, to 
 issue from the whole, upon which an action 
 for rent in arrear may be maintained as upon 
 such lease; Co. Litt. 57a; 31 Penn. 20; 
 24 Wend. 76 ; 9 Paige, 310. 
 
 Leases are made either hy parol or by deed. 
 The former mode embraces all cases where 
 the parties agree either orally or by a writing 
 not under seal. The technical words gene- 
 rally made use of in the written instrument 
 are, "demise, grant, and to farm let;" but 
 no particular form of expression is required 
 
LEASE 
 
 58 
 
 LEASE 
 
 in any case to create an immediate demise ;. 
 8 Bing. 182 ; 9 Ad. & E. 650 ; 5 Term, 168 ; 
 4 Burr. 2208 ; 5 Scott, 531 ; 15 Wend. 379 ; 
 111 Mass. 30; 71 III. 317; 7 Blackf. 403; 
 12 Me. 135; 6 Watts, 362; 1 Denio, 602; 
 Williams, R. P. 327. Any permissive hold- 
 ing is, in fact, sufficient for the purpose, and 
 it may be contained in any written memoran- 
 dum by which it appears to have been the in- 
 tention of one of the parties voluntarily to dis- 
 possess himself of the premises for any given 
 period, and of the other to assume the pos- 
 session for the same period ; Taylor, Landl. 
 & Ten. § 26 ; 1 Washb. R. P. 300. The 
 English statute of frauds (29 Charles II. c. 
 3), first required all leases exceeding three 
 years to be in writing. In Alabama, Arkan- 
 sas, California, Connecticut, Delaware, Illi- 
 nois, Iowa, Kansas, Kentucky, Michigan, 
 Minnesota, Mississippi, Montana, Nebras- 
 ka, Nevada, New York, Rhode Island, 
 7'exas, Utah, Oregon, Tennessee, West Vir- 
 ginia, Wyoming, Virginia, and Wisconsin, 
 leases for one year only are excepted from 
 the requirement that they should be in writ- 
 ing. In Georgia, Maryland, New Jersey, 
 North Carolina, Pennsylvania, and South 
 Carolina, the law is as in England. It is 
 two years in Florida. While in Vermont, 
 Ohio, New Hampshire, Missouri, Massachu- 
 setts, Maine, and Indiana, all leases not in 
 writing are declared mere estates at will. See 
 Browne on Stat, of Frauds, App. 
 
 A written agreement is generally sufficient 
 to create a term of years. But in England, 
 by statute, all leases that are required to be in 
 writing must also be under seal ; 8 & 9 Vict. c. 
 106. In Massachusetts and Maryland, leases 
 for more than seven years must be by deed. 
 So in Virginia, of those for more than five, 
 and in Delaware, Rhode Inland, and Ver- 
 mont, of those for moi* than one. 
 
 All persons seized of lands or tenements 
 may grant leases of them, unless they happen 
 to be under some legal disability : as, of un- 
 sound mind, immature age, or the like ; 8 C. 
 
 6 P. 679. See, as to infants, 10 Pet. 65 ; 
 
 7 Cow. 179; 11 Johns. 539; 3 Mod. 310. 
 Contracts by them are voidable only and not 
 void, and may be affirmed or disaffirmed by 
 them on attaining their majority; 17 Wend. 
 119; 12 ¥1.28; 11 Johns. 539 ; 6 Conn. 
 494. As to persons of unsound mind, see 3 
 Camp. 126; 51 N. Y. 384; 11 Pick. 304; 
 
 8 C. & P. 679 ; intoxicated persons, 2 Paige, 
 80; 18 Ves. 16; 4 Harr. 285; married 
 women. Smith, Landl, & T. 48 ; 1 Taylor, 
 Landl. ST.? 101. See Parties ; Con- 
 TEACT8. But it is essential to the validity of 
 a lease that the lessor has, at the time he un- 
 dertakes to make the grant, possession of the 
 premises ; otherwise, whatever he does will 
 amount to nothing more than the assignment 
 of a chose in action; Cro. Car. 109; Shep. 
 Touchst. 269. But possession is always pre- 
 sumed to follow the title unless there is a 
 clearly marked adverse possession. 
 
 _ And although a lease may not be sufficient 
 
 to authorize a lessee to demand possession for 
 the want of a possessory title in his lessor, it 
 will still operate by way of estoppel, and 
 enure to his benefit if the lessor afterwards 
 comes into possession of the land before the 
 expiration of the lease ; Bacon, Abr. Leases 
 (1 4) ; Cro. Eliz. 109 ; 28 Barb. 240; 61 N.Y. 
 6 ; 7 M. & G. 701 ; 3 Pick. 52 ; 18 How. 
 82; 6 Watts, 60 ; 2 Hill, N.Y. 554 ; 16 Johns. 
 110, 201 ; 5 Ark. 693. 
 
 The power to lease will, of course, depend 
 upon the extent of the lessor's estate in the 
 premises ; and if he has but an estate for life, 
 his lease can only be coextensive therewith ; 
 when for a term of years, its commencement 
 as well as its termination must be ascertained, 
 for certainty in these respects is of the essence 
 of a term of years. But although this term 
 may not at first appear to be certain, it may 
 be rendered so by reference to some fact or 
 event ; id certum est quod certum reddi potest. 
 Thus, if a lease be made to a man for so 
 many years as he has in the manor of Dale, 
 and he happens to have a term of two years 
 in that manor, the lease will be good for that 
 period; Co. Litt. 45 6; 3 Term, 463; 4 
 East, 29 ; 1 M. & W. 533 ; 3 Co. 346 ; 97 
 Mass. 206 ; 102 Mass. 93 ; 10 R. I. 355. 
 
 Lord Coke states that, originally, express 
 terms could not endure beyond an ordinary 
 generation of forty years, lest men might be 
 disinherited ; but the doctrine had become 
 antiquated even in his day, and at the present 
 time there is no limitation to a term" of years 
 except in the state of New York, where land 
 cannot be leased for agricultural purposes for 
 a longer period than twelve years ; see Co. 
 Litt. 45 6, 46 a ; 9 Mod. 101 ; 13 Ohio, 334; 
 1 Piatt, Leas. 3; 1 Washb. R. P. 310; 41 
 N. Y. 480 ; 62 N. Y. 524. 
 _ In all leases of uncertain duration, or if no 
 time has been agreed upon for the continua- 
 tion of the term, or if after the expiration of 
 a term the tenant continues to hold over, 
 without any effiart on the part of the landlord 
 to remove him, the tenancy is at the will of 
 either party. And it remains at will until 
 after the payment and receipt of rent on ac- 
 count of a new tenancy, or until the parties 
 concur in some other act which recognizes 
 the existence of a tenancy, from which event 
 it becomes a tenancy from year to year, in- 
 vested with the qualities and incidents of the 
 original tenancy. After this, neither party 
 has a right to terminate it before the expira- 
 tion of the current year upon which they 
 have entered, nor then without having first 
 given due notice to the other party of his in- 
 tention to do so. The length of this notice 
 IS regulated by the statutes of the different 
 states ; 11 Wend. 616 ; 13 Johns. 109 ; 8 
 Term, 3; 4 Ired. 294; 3 Zabr. 111. See 
 Landlord and Tenant. 
 
 Ihe formal parts of a lease by deed are: 
 first, the date, which will fix the time for its 
 commencement, unless some other period is 
 specified in the instrument itself for that pur- 
 pose ; but if there is no date, or an impossible 
 
LEASE 
 
 59 
 
 LEASING-MAKING 
 
 one, the time will be considered as having 
 commenced from the delivery of" the deed ; 2 
 Johns. 230 ; 15 Wend. 656 ; 4 B. & C. 908 ; 
 17 Wend. 103. Second, the names of the 
 parties, with respect to which the law knows 
 but one Christian name ; and therefore the 
 middle letter of the name of either party is 
 immaterial, and a person may always show he 
 is as well known by one name as another ; 14 
 Pet. 322; 36 111. 362; 55 N. Y. 380. The 
 entire omission of the lessee's name from a 
 lease will render the instrument simply void ; 
 11 Com. 129; 8 Md. 118; 24 N. Y. 336; 6 
 Allen, 305; 19 Iowa, 290; 2 Wall. 24. 
 Third, recitals of title or other circumstances 
 of the case. Fourth, some consideration 
 must appear, although it need not be what is 
 technically called rent, or a periodical render 
 of compensation for the use of the premises ; 
 but it may be a sum in gross, or the natural 
 affection which one party has for the other. 
 It may also consist in grain, animals, or the 
 personal services of the lessee ; 3 Hill, N. Y. 
 345 ; 1 Speers, 408 ; Taylo^, Landl. & T. § 
 152. Fifth, the operative words of the lease 
 are usually '''demise, gran(, lease, and to farm 
 let;" 50 N. Y. 414; 53 N. H. 613; 27 
 Md. 17^. Sixth, the description of the 
 premises need not specify all the particulars 
 of the subject-matter of the demise, for the 
 accessories will follow the principal thing 
 named : thus, the garden is parcel of a dwell- 
 ing-house, and the general description of a 
 farm includes all the houses and lands ap- 
 • pertaining to the farm ; 9 Conn. 374 ; 5 
 Johns. 446; 11 C. E. Green, 82; 4 Rawle, 
 330 ; 9 Cow. 747. But whether certain 
 premises are parcel of the demise or not is 
 always matter of evidence ; 14 Barb. 434 ; 
 3 B. & C. 870 ; 14 B. Mon. 8. SA>enth, the 
 rights and liabilities of the respective parties 
 are regulated by law in the absence of any 
 particular agreement in respect thereto ; but 
 express covenants are usually inserted in a 
 lease, for the purpose of limiting or otherwise 
 defining their rights and duties in relation to 
 repairs, taxes, insurance renewals, residence 
 on the premises, modes of cultivation, fixtures, 
 and the like. Certain covenants are also im- 
 plied in law from the use of certain technical 
 terms in leases. 
 
 In every well-drawn lease, provision is 
 made for a forfeiture of the term in case 
 the tenant refuses to pay rent, commits waste, 
 or is guilty of a breach of the covenant to 
 repair, insure, reside upon the premises, or 
 the like. This clause enables the lessor or 
 his assigns to re-enter in any such event upon 
 the demised premises and eject the tenant, 
 leaving both parties in the same condition as 
 if the lease were a nullity; but in the ab- 
 sence of a proviso for re-entry the lessor would 
 possess no such power, the mere breach of a 
 covenant enabling him to sue for damages 
 only; 11 Mod. 61; 3 Wils. 127; 2 Cow. 
 591 ; 2 Overton, 233 ; 1 Dutch. 285 ; 15 Cal. 
 233. The forfeiture will generally be en- 
 forced by the courts, except where the land- 
 
 lord's damages are a mere matter of compu- 
 tation and can be readily compensated by 
 money ; 7 Johns. 235 ; 4 Munf. 332 ; 2 Price, 
 200 ; 44 Vt. 285 ; 9 Hare, 683 ; 5 R. I. 144; 
 60 Penn. 131 ; 20 Vt. 415 ; 31 Conn. 468 ; 
 40 N. H. 434. But in case of a forfeiture 
 for the non-payment of rent, the proviso is 
 allowed to operate simply as a security for 
 rent, and the tenant will be relieved from its 
 effects at any time by paying the landlord or 
 bringing into court the amount of all arrears 
 of rent, with interest and costs. 
 
 A lease may also be terminated before the 
 prescribed period if the premises are required 
 to be taken for public uses or improvements, 
 or the subject-matter of demise wholly per- 
 ishes or is turned into a house of ill fame ; 
 24 Wend. 454 ; 29 Barb. 116 ; ll9 Mass. 28 ; 
 46 N. y. 297 ; 88 Mo. 143 ; 58 Penn. 271 ; 
 118 Mass. 125; 38 Cal. 259 ; 11 Cush. 600; 
 6 Ohio, 303. The same result will follow 
 when the tenant purchases the fee, or the fee 
 descends to him as heir at law ; for in either 
 case the lease is merged in the inheritance ; 
 since there would be a manifest inconsistency 
 in allowing the same person to hold two dis- 
 tinct estates immediately expectant on each 
 other, while one of them includes the time 
 of both, thus uniting the two opposite charac- 
 ters of landlord and tenant; 10 Johns. 482 ; 
 2 C. & P. 347 ; 26 111. 19 ; 6 Johns. Ch. 417 ; 
 13 Penn. 16; Taylor, Landl. & T. § 502. 
 See Landlord and Tenant. 
 
 LEASE AND RELEASE. A species 
 of conveyance much used in England, con- 
 sisting theoretically of two instruments, but 
 which are practically united in the same in- 
 strument. 
 
 It was invented by Sergeant Moore, soon 
 after the enactment of the statute of uses. 
 It is thus contrived : a lease, or rather bar- 
 gain and sale upon some pecuniary considera- 
 tion for one year, is made by the tenant of 
 the freehold to the lessee or bargainee. This, 
 without any enrolment, makes the bargainor 
 stand seised to the use of the bargainee, and 
 vests in the bargainee the use of the term for 
 one year, and then the statute immediately 
 annexes the possession. Being thus in pos- 
 session, he is capable of receiving a release 
 of the freehold and reversion, which must be 
 made to the tenant in possession, and accord- 
 ingly the next day a release is granted to 
 him. 
 
 The lease and release, when used as a con- 
 veyance of the fee, hav6 the joint operation 
 of a single conveyance ; 2 Bla. Com. 339 ; 4 
 Kent, 482 ; Co. Litt. 207 ; Cruise, Dig. tit. 
 32, c. 11. 
 
 LEASEHOLD. The estate held by vir- 
 tue of a lease. In practice the word is 
 generally applied to an estate for a fixed term 
 of years. 
 
 LEASING-MAKING. In Scotch 
 Law. Verbal sedition, viz. : slanderous and 
 untrue speeches to the disdain, reproach, and 
 contempt of his majesty, his council and pro- 
 
LEAVE OF COURT 
 
 60 
 
 LEGACY 
 
 ceedings, etc. Bell, Diet. ; Erskine, Inst. 
 4. 4. 29. 
 
 IiEAVIi or COURT. Permission 
 granted by the court to do something which, 
 without such permission, would not be allow- 
 able. 
 
 The statute of 4 Ann. c. 16, s. 4, provides 
 that it shall be lawful for any defendant or 
 tenant in any action or suit, or for any plain- 
 tiB' in replevin, in any court of record, with 
 leave of the court, to plead as many several 
 matters thereto as he shall think necessary for 
 his defence. The principles of this statute 
 have been adopted by most of the states of 
 the Union. 
 
 When the defendant, in pursuance of this 
 statute, pleads more than one plea in bar to 
 one and the same demand or thing, all of the 
 pleas except the first should purport to be 
 pleaded with leave of the court. But the 
 omission is not error nor cause of demurrer ; 
 Lawes, PI. 132 ; 2 Chitty, PI. 421 ; Story, 
 Eq. PI. 72, 76 ; Gould, PI. c. 8, § 21 ; Steph. 
 PI. 272 ; Andr. 109 ; 3 N. H. 523. 
 
 Asking leave of court to do any act is an 
 implied admission of jurisdiction of the court, 
 and in those cases in which the objection to 
 the jurisdiction must be taken, if at all, by 
 plea to the jurisdiction, and it can be taken 
 in no other way, the court, by such asking 
 leave, becomes fully vested with the jurisdic- 
 tion.^ Bacon, Abr. Abatement (A) ; Bacon, 
 Abr. Pleas, etc. (E 2) ; Lawes, PI. 91 ; 6 
 Pick. 391. But such admission cannot aid 
 the jurisdiction except in such cases. 
 
 LECTOR DE LETRA ANTIQUA. In 
 Spanish Law. The person duly authorized 
 by the government to read and decipher an- 
 cient documents and titles, in order to entitle 
 them to legal effect in courts of justice. 
 
 LEDGER. In Commercial La-w. A 
 book in which are inscribed the names of all 
 persons dealing with the person who keeps 
 it, and in which there is a separate account, 
 composed generally of one or more pages for 
 each. There are two parallel columns, on 
 one of which the party named is the debtor, 
 and on the other the creditor, and presents a 
 ready means of ascertaining the state of the 
 account. As this book is a transcript from 
 the day-book or journal, it is not evidence 
 per se. 
 
 LEDG-ER-BOOK. In Ecclesiastical 
 Law. The name of a book kept in the pre- 
 rogative courts in England. It is considered 
 as a roll of the court, but, it seems, it cannot 
 be read in evidence. Bacon, Abr. 
 
 LEGACT. A gift of personal property 
 by last will and testament. The term is 
 more commonly applied to a bequest of money 
 or chattels, although sometimes used with 
 reference to a charge upon real estate; 2 
 Will. Exec. (6 Am. ed.) 1051 ; see 9 Cush. 
 297 ; 1 Law Rep. 107 ; 5 Term, 716 ; 1 
 Burr. 268 ; 7 Ves. Ch. 391, 522. 
 
 An absolute legacy is one given without 
 condition, to vest immediately ; 1 Vern. Ch. 
 
 254 ; 2 id. 161 ; 6 Ves. Ch. 461 ; 19 id. 88 ; 
 Comyns, I)ig. Chancery (14). 
 
 An additional, or, more technically, a 
 cumulative, legacy is one given to a legatee 
 to whom a legacy has already been given. It 
 may be given by the same will in which a 
 legacy has been already bequeathed, or by a 
 codicil thereto; 1 Bro. C. C. 90; 10 Johns. 
 156; 17 Ohio, 597; 22 Conn. 371; as to 
 when such second legacy will be held a mere 
 repetition of a prior bequest; see 2 L. C. 
 Eq. 346. 
 
 An alternate legacy is one by which the 
 testator gives one of two or more things with- 
 out designating which. 
 
 A conditional legacy is a bequest whose 
 existence depends upon the happening or not 
 happening of some uncertain event ; 1 Roper, 
 Leg. (3d ed.) 645. The condition may be 
 either precedent; 2 Conn. 196 ; 9 W. & S. 
 103; 17 Wend. 893; 14 N. H. 315; 10 
 Cush. 129; or subsequent; 25 Me. 529; 33 
 N. H. 285 ; 3 Pet. 376. 
 
 A demonstrative legacy is a bequest of a 
 certain sum of money, stock, or the like, 
 with reference to a particular fund for pay- 
 ment; Will. Exec. (6 Am. ed.) 360; 23 
 N. H. 154; 19 Gratt. 438; 10 Penn. 387; 
 2 Dev. & B. Eq. 453 ; 16 N. Y. 365. 
 
 A general legacy is one so given as not to 
 amount to a bequest of a particular thing or 
 money of the testator, distinguished from all 
 other's of the same kind ; 1 Roper, Leg. (3d 
 ed.) 170 ; 8 N. Y. 516 ; 6 Madd. 92. 
 
 An indefinite legacy is a bequest of things- 
 which are not enumerated or ascertained as 
 to numbers or quantities : as, a bequest by a 
 testator of all his goods, all his stocks in the 
 funds ; Lowndes, Leg. 84 ; Swinburne, Wills, 
 485; Ambl. 641; 1 P. Wms. 697; of this 
 class are generally residuary legacies. 
 
 A lapsed legacy is one which, in conse- 
 quence of the death of the legatee before the 
 testator or before the period for vesting, has 
 never vested ; Swinb. b. t. 7, s. 23, pi. 1 ; 
 2 W. & S. 450 ; 1 P. Wms. 83 ; 1 Bro. C. C. 
 84; 4DeG. M. & G. §633. 
 
 A legacy^ for life is one in which the lega- 
 tee is to enjoy the use of the legacy for life. 
 
 _A modal legacy is a bequest accompanied 
 with directions as to the mode in which it 
 should be applied for the legatee's benefit : 
 for example, a legacy to Titius to put him an 
 apprentice; 2 Vera. Ch. 431; Lowndes, 
 Leg. 151. 
 
 A pecuniary legacy is one of money. 
 Pecuniary legacies are most usually general 
 legacies, but there may be a specific pecu- 
 niary legacy, for example, of the money in a 
 certain bag ; 1 Roper, Leg. (3d ed.) 150, n. 
 
 A residuary legacy is a bequest of all the 
 testator's personal estate not otherwise effect- 
 ually disposed of by his will ; Lowndes, Leg. 
 10; Bacon, Abr. Legacies (I) ; 6 H. L. Cas. 
 217. 
 
 A specific legacy is a bequest of a speci- 
 fied part of the testator's personal estate, 
 distinguished from all others of the same 
 
LEGACY 
 
 61 
 
 LEGACY 
 
 kind ; 3 Beav. 349 ; 20 Me. 106 ; 8 Kawle, 
 237; 23 N. H. 154; L. R. 20 Eq. 308. 
 
 All natural persons and all corporations are 
 capable of becoming legatees, unless pro- 
 hibited by statute or alien enemies. Legacies 
 to the subscribing witnesses to a will are by 
 statute often declared void ; see 2 Will. Exec. 
 (6th Am. ed.) 1053 et seq. ; 1 9 Ves. Ch. 
 208; 3 Russ. Ch. 437; 1 Bla. Com. 442; 
 L. R. 13 Eq. 381; 106 Mass. 474; 1 Moo. 
 & R. 288. Bequests to superstitious uses 
 are prohibited by many of the English stat- 
 utes; 2 Beav. 151; 2 Mylne & K. 897; 5 
 Mylne&C. 11; 1 Salk. 162; 2 Vern. 266. 
 But in the United States the free toleration 
 of all religious opinions would seem to make 
 it almost impossible to hold any use supersti- 
 tious; 1 Watts, 218; 1 Bright. 846; 2 Dana, 
 170. But the courts will not intervene to 
 support and maintain a legacy for any pur- 
 pose which is illegal or subversive of public 
 policy; 63 Penn. 465. Bequests to charita- 
 ble uses are favored both in England and the 
 United States. See Charity. The cases 
 are extensively collated in 2 Will. Exec. 
 (6th Am. ed.) 1055 ; 4 Kent, 508 ; 2 How. 
 127 ; 4 Wheat. 1 ; 7 Johns. Ch. 292 ; 20 
 Ohio, 483; 10 Penn. 23; 11 Vt. 296; 
 5 Cush. 336; 12 Conn. 113; Saxt. Ch. 577; 
 3 Leigh, 450; 2lred. Eq. 9, 210; 5 Humphr. 
 170; 11 Beav. 481; 14 id. 857; 10 Hare, 
 446. Legacies which would otherwise be 
 void for uncertainty or perpetuity are sus- 
 tained if for charitable uses ; 14 Allen, 550 ; 
 38 Conn. 366; 15 How. 367; 7 R. L 252. 
 In those states where the principles of the 
 statute of Elizabeth in regard to charitable 
 uses are recognized in the equity courts, the 
 decisions have been liberal in upholding 
 bequests for the most diverse objects and 
 expressed in the most general terms ; 1 7 S. & 
 R. 88 ; 2 Ired. Eq. 210 ; 1 Gilm. 336 ; 7 Vt. 
 241 ; 2 Sandf. Ch. 46 ; 7 B. Monr. 617, 618- 
 622; 2 How. 127; 9 Penn. 433; 7 Johns. 
 Ch. 292; 10 Allen, 177; 25 Md. 518; 
 2 Dana, 170; 24 How. 465; 15 Ohio St. 
 637 ; 28 Penn. 23 ; 59 Me. 332 ; 38 Conn. 
 362; 43 N. Y. 424; 2 Perry, Trusts, § 748, 
 note 1 ; 33 Md. 699. In Virginia, the stat. 
 of 43 Eliz. c. 4, has been ^repealed ; 3 Leigh, 
 450 ; 15 Gratt. 423. 
 
 Construction of legacies. First, the tech- 
 nical import of words is not to prevail over 
 the obvious intent of the testator ; 3 Term, 
 86 ; 11 East, 246 ; 16 id. 221 ; 6 Ad. & E. 
 167 ; 7 M. & W. 1, 481 ; 1 M. & K. 671 ; 
 2 id. 659 ; 2 Russ. & M. 546 ; L. R. 11 Eq. 
 280; 2 Mass. 56; 11 Pick. 257,375; IS id. 
 41, 44; 2 Mete. Mass. 191, 194; 1 Root, 
 332; 1 Nott & M'C. 69; 12 Johns. 389; 
 36 Me. 216 ; 58 Penn. 427 ; 51 N. H. 443 ; 
 64 Me. 490 ; 10 S. & R. 150. Second, where 
 technical words are used by the testator, or 
 words of art, they are to have their technical 
 import, unless it is apparent they were not 
 intended to be u.sed in that sense ; 6 Term, 
 352; 3 Brown, Ch. 68; 4 Russ. Ch. 386, 
 387 ; 1 Younge & J. 612 ; 4 Ves. Ch. 329 ; 
 
 8 id. 306 ; Dougl. 841 ; 5 Mass. 500 ; 8 id. 3 ; 
 
 2 M'Cord, 66 ; 5 Denio, 646 ; 75 Penn. 220 ; 3 
 Green, 218; 1 Sumn. 239; 18 N. Y. 417 ; 
 25 Wend. 119. The particular intent will 
 always be sacrificed to the general intent ; 
 1 Burr. 38; 7 Term, 531; 11 Gray, 469; 
 70 Penn. 335 ; 106 Mass. 24 ; 26 Mo. 590 ; 6 
 Peters, 68. Third, the intent of the tes- 
 tator is to be determined from the Whole 
 will ; 1 Swanst. 28 ; 1 Coll. Ch. 681 ; 8 Term, 
 122; 3 Pet. 377; 4 Rand. 213; 8 Blackf. 
 387 ; 100 Mass. 342 ; 51 N. H. 83 , 78 Penn. 
 40; 35 Ind. 198; ,82 N. Y. 450, 22 Me. 
 413. Fourth, every word shall have effect, 
 if it can be done without defeating the general 
 purpose of the will, which is to be carried 
 into effect in every reasonable mode ; 6 Ves. 
 102; 2 B. & Aid. 448; 2 Bla. Com. 381; 
 
 3 Pick. 360 ; 7 Ired. Eq. 267 ; IC Plumphr. 
 868 ; 2 Md. 82 ; 6 Pet. 68 ; 1 Jarm. Willsj 
 404-412 ; 9 H. L. Cas. 420; 40 N. H. 500; 
 53 Penn. 106 ; 12 Gratt. 196 ; 19 N. Y. 348. 
 But where it is impossible to form a consistent 
 whole the latter part will prevail; 6 Ves. 
 100; 1 Phill. C. C./333; 5 Beav. 100; .52 
 Me. 287; 52 N. Y. 12; 29 Penn. 234; 
 75 id. 226 ; 78 id. 484. 'Fifth, the will will 
 be favorably construed to effectuate the tes- 
 tator's intent, and to this end, words may be 
 transposed, supplied, or rejected ; Hob. 75 ; 
 16 East, 309 ; 21 Beav. 143 ; 7 H. L. Cas. 
 68; 2 Bligh, 1 ; 8 Sim. 184; 30 Iowa, 294; 
 
 4 Rich. Eq. 22; 63 N. C. 381 ; 7 GiU. & J. 
 311; 105 Mass. 338; 22 Me. 429; L. R. 14 
 Eq. 54; 10 Wheat. 204; 35 Md. 198; 54 
 Penn. 245 ; 20 Ohio St. 416. Sixth, in the 
 case of a will of personalty made abroad, the 
 lex domicilii must prevail, unless it appear 
 the testator had a different intent; Story, 
 Confl. Laws, §§ 479 a, 479 m, 490, 491 ; 
 1 DeG. F. Sc J. 404 ; L. R. 1 H. L. 401 ; 99 
 Mass. 136; 52 Me. 165; 34 N. Y. 584; 
 1 Cranch, 38 ; 14 How. 426. Seventh, a will 
 of personalty speaks from the time of testa- 
 tor's death; 8 DeG. M. & G. 391 ; 8 Paige, 
 104; 84 N. Y. 201 ; 22 N. H. 484 ; 21 Conn. 
 610 ; 41 Barb. 60. 
 
 Whether cumulated or repeated Wliere a 
 testator has twice bequeathed a legacy to one 
 person it becomes a question whedier the 
 legatee is entitled to both or one only. 
 Where there is internal evidence of the in- 
 tention of the testator, that intention is to be 
 carried out; 2 Beav. 216; 7 id. 107; 3 
 Hare, 620; 2 Drur. & W. Ch. 133; 3 Ves. 
 Ch. 462; 6 id. 369; 17 id. 462; 2 Sim. & 
 S. 145 ; 4 Hare, 219 ; L. R. 3 Ch. Div. 788 ; 
 10 Johns. 156; 4 Harr. N. J. 127; 1 Zabr. 
 573 ; and evidence will be received in sup- 
 port of the apparent intention, but not against 
 it; 5 Madd. 351; 2 Beav. 115 ; 1 My. & K. 
 589; 2 Brown, Ch. 528; 4 Hare, 216; 1 
 Drur; & W. Ch. 94, 113. Where there is no 
 such internal evidence, the following positions 
 of law appear established. First, if the 
 same specific thing is bequeathed twice to the 
 same legatee in the same will, or in the will 
 and agam in a codicil, in that case he can 
 
LEGACY 
 
 62 
 
 LEGACY 
 
 claim the benefit of only one legacy ; Toller, 
 Exec. 335 ; 2 Hare, 432. Second, where 
 two legacies of quantity of equal amount are 
 bequeathed to the same legatee in one and the 
 same instrument, there also the second be- 
 quest is considered a mere repetition, and he 
 shall be entitled to one legacy only ; 1 Brown, 
 Ch. 30 ; 4 Ves. Ch. 75 ; 3 Mylne & K. 29 ; 
 10 Johns. 156. See 4 Gill, 280; 1 Zabr. 
 573; 16 Penn. 127; 5 De G. & S. 698; 16 
 Sim. 423. 'Third, where two legacies of 
 quantity of unequal amount are given to the 
 same person in the same instrument, the one 
 is not merged in the other, but the latter 
 shall be regarded as cumulative, and the lega- 
 tee entitled to both; Finch, 267; 2 Brown, 
 C. C. 225; 3 Hare, 620. Fourth, where 
 two legacies are given simpliciter to the same 
 legatee by different instruments, in that case 
 also the latter shall be cumulative, whether 
 its amount be equal; 1 Cox, 392; 17 Ves. 
 Ch. 34; 1 Coll. Ch. 495; 4 Hare, 216; or 
 unequal to the former: 1 Chanc. Cas. 801; 
 1 P. Wms. 423; 5 Sim. 431; 7 id. 29; 
 1 Mylne & K. 589 ; 4 H. L. Cas. 393 ; 1 De 
 G. F. & J. 183 ; L. R. 1 2 Eq. Cas. 525 ; id. 7 
 Ch. App. 448. And see 1 Cox, 392; 1 
 Brown, Ch. 272 ; 2 Beav. 215 ; 2 Drur. & 
 W. 133; 1 Bligh, n; s. 491; 1 Phill. 294. 
 See, generally, on this subject notes to Hooley 
 vs. Hatton, 2 Lead. Cas. Eq^ *346. 
 
 Description of legatee. — Children. This 
 may have reference to the time of the testa^ 
 tor's death, or that of making the will. The 
 former is the presumed intention, unless from 
 the connection or circumstances the latter is 
 the apparent intent, in which case it must 
 prevail; 4 Brown, 55; Ambl. 397; 2 Cox, 
 191, 192; 11 Sim. 42; 2 Will. Exec. 
 (6th Am. ed.) 1089; 11 Gill & J. 185; 21 
 Conn. 16 ; 59 Me. 325 ; 2 Bev. & B. 30 ; 101 
 Mass. 132 ; 54 N. Y. 83. 
 
 This term will include a child in ventre sa 
 mire; 2 H. Bla. 399; 1 Sim. & S. 181 ; 2 
 Cox, 425 ; 1, Meigs, 149 ; 5 S. & R. 38 ; 15 
 Pick. 255; 30 Penn. 173; L. R. 1 Ch. Div. 
 460. Where the division of a fund to lega- 
 tees is postponed until a certain event or 
 period the word "child" will apply to all 
 those answering that description when the 
 fund is to' be divided ; 8 Ves. 38 ; 9 Leigh, 
 79 ; 1 Hill, Ch. 322 ; 1 McCarter, 159 ; 4 
 Sandf. 36; 101 Mass. 138. But it will 
 sometimes have a more restricted application, 
 and thus be confined to children born before 
 the death of the testator. But children born 
 after the period of distribution take no share ; 
 L. R. 12 Eq. 427; 45 N. H. 270; 8 Conn. 
 49 ; 5 Jones, Eq. 208 ; 1 Pars. 347 ; 1 Houst. 
 561. And it will make no difference that the 
 bequest is to children begotten, or to be be- 
 gotten, or which "may be born;" 2 Mylne 
 & K. 46; 14 Beav. 453; 10 Sim. 317; 5 
 R. L 318; 1 Rop. Leg. (3 ed.) 51 ; unless 
 such be the testator's clear intent; 19 Ves. 
 666 ; 16 Gray, 305 ; 4 Sneed, 254 ; 4 R. I. 
 121; 3 Head, 493; 3 Jones, Eq. 490; 2 
 Jarman, Wills, 84. 
 
 "Children," when used to designate one's 
 heirs,, may include grandchildren ; 1 2 B. 
 Monr. 115, 121 ; 5 Penn. 365 ; 37 N. Y. 42 ; 
 63 Mass. 289 ; S3 Me. 464 ; 5 Binn. 606. 
 But if the word children is used, and there 
 are persons to answer it, then grandchildren 
 cannot be comprehended under it ; 4 Myl. & 
 C. 60; L. R. 11 Eg. 91 ; 29 Md. 443 ; 14 
 Allen, 205 ; 6 C. E. Green, 85 ; 2 Whart. 
 376; 6 Ired. Eq. 421 ; 4 Watts, 82. The 
 general rule is, that a bequest to a man and 
 his children, he having children living at 
 the time the will takes effect, creates a joint 
 estate in the father and children ; but if he 
 have no children, he takes an absolute estate ; 
 5 Sim. 548 ; 2 You. & Coll. 478 ; L. R. 12 Eq. 
 316; L. R. 14 Eq. 415; L. R. 7 Ch. App. 
 253; 3 Pick.' 360; 6 Gray, 336. But in 
 both cases slight circumstances will warrant 
 the court in decreeing the limitation to be for 
 life to the father, with remainder over to the 
 children; 4 Madd. 361 ; 13 S. & R. 68 ; 16 
 B. Mon. 309 ; 1 Bailey, Eq. 357 ; 5 Jones, 
 Eq. 219 ; 23 Ala. 705. 
 
 The term children will not include illegiti- 
 mate children, if there are legitimate to an- 
 swer the term ; 1 Younge, 354 ; 2 Russ. & M. 
 336; see 2 Will. Exec. (6 Am. ed.) 1100, 
 and note (2) ; otherwise, it may or may not, 
 according to circumstances ; 1 Ves. & B. 422 ; 
 
 1 Bail. Eq. 351 ; 6 Ired. Eq. 135 ; 9 Paige, 
 88 ; 2 Smed. 625 : 1 Roper, Leg. 80 ; L. R. 
 10 Eq. 160 ; L. R. 1 Ch. Div. 644 ; 37 Conn. 
 429 ; L. R. 7 H. L. 576 ; L. R. 4 P. C. 164. 
 But a legacy to a natural child of a certain 
 man still in ventre sa mire is void, as contra- 
 vening public morals and decency; 1 P. Wms. 
 529 ; 2 My. & R. 769 ; L. R. 3 Ch. Div. 773. 
 The term grandchildren will not usually in- 
 clude great-grandchildren ; 3 Ves. & B. 59 ; 
 4 My. & C. 60 ; 8 Beav. 247. A bequest to 
 "my beloved wife," not mentioning her by 
 name, applies exclusively to the wife at the 
 date of the will, and is not to be extended 
 to an after-taken wife ; 1 Russ. & M. 629 ; 8 
 Hare, 131 ; L. R. 8 Eq. Cas. 65 ; 31 Beav. 
 398. One not lawfully married may, never- 
 theless, take a legacy by the name or descrip- 
 tion of the wife of the one to whom she is 
 reputed to be married ; 1 Keen, 685 ; 9 Sim. 
 615; 1 DeG. J. & S. 177; 11 W. R. 614; 
 but not if the reputed relation is the motive 
 for the bequest ; 4 Ves. 802 ; 4 Brown, 90 ; 5 
 My. & C. 145 ; L. R. 2 Ex. 319. But see 1 
 Keen, 685. 
 
 Nephew and nieces are terms which, in the 
 description of a legatee, will receive their 
 strict import, unless there is something in the 
 will to indicate a contrary intention ; 14 Sim. 
 214; 1 Jac. 207 ; 4 My. & C. 60; 27 Beav. 
 480; 2 Yeates, 196; 3 Barb. 475; 3 Halst. 
 
 ?h- ^T^V^** ^*''''' «3! ^ DeG. M. & G. 
 494; L. R. 6 Ch. App. 351; 2 Jones, Eq. 
 
 . '''.^^ *?™ cousins will be restricted in its 
 signification, where there is something in the 
 will to hmit Its meaning; 9 Sim 4'S7 .<?pp 
 
 2 Brown, C. C. 125: 1 Sim & sf 301 i 6 
 
LEGACY 
 
 63 
 
 LEGACY 
 
 DeGex, M. & G. 68 ; 4 Mylne & C. 56 ; 9 
 Sim. 386 ; 81 Beav. 805. 
 
 Terms which give an estate tail in lands 
 will be construed to give the absolute title to 
 personalty; 1 Madd. 475; 19 Ves. 544; 8 
 H. L. Cas. 571 ; 8 Md. Ch. 36 ; 10 Yerger, 
 287 ; 23 Penn. 9 ; 3 W. & S. 124 ; 4 Dev. & 
 B. 478 ; 2 Russ. & Mylne, 390; 1 Bligh, 1 ; 
 L. R. 5 Eq. Cas. 383. 
 
 A legacy to one and his heirs, although 
 generally conveying a fee-simple in real estate 
 and the entire property in personalty, may, 
 by the manner of its expression and connec- 
 tion, be held to be a designation of such per- 
 sons as are the legal heirs of the person 
 named, and thus they take as purchasers by 
 name; 4 Bro. C. C. 542; 10 B. Mon. 104; 
 108 Mass. 579 ; 64 Me. 490 ; 15 N. J. 404; 15 
 Ohio, 559. But the authority of these cases 
 is doubtful. The word ^^ heirs," when used 
 to denote succession or substitution, is under- 
 stood in the case of a legacy to mean persons 
 entitled under the intestate law ; 63 Me. 368 ; 
 59 N. Y. 151 ; 14 Allen, 205 ; 9 Pet. 483 ; 
 L. R. 9 Eq. 258; 100 Mass. 348; 3 Penn. 
 305. But if not so used, the word heir is 
 construed in its ordinary and legal sense: 63 
 Me. 379; 59 N. Y. 149; 37 Penn. 9; 108 
 Mass. 579 ; 45 Penn. 201 ; 3 H. L. Cas. 557 ; 
 L. R. 7 Eq. Cas. 151. 
 
 The word " t'ssue," used as a word of pur- 
 chase, comprises all descendants of him to 
 whose issue the bequest is made ; 8 Ves. 257 ; 
 23 Beav. 40; 7 Allen, 76; 68 Penn. 484; 
 103 Mass. 288. 
 
 The term ^^ relations" includes those only 
 who would otherwise be entitled under the 
 statute of distributions; 1 Bro. C. C. 31; 8 
 Swanst. 319; 54 Me. 291; 20 N. H. 431; 
 
 8 S. & R. 45 ; and so of the word '■^family ; " 
 
 9 Ves. 323 ; 19 Beav. 580; L. R. 9 Eq. Cas. 
 622; 9R. L 412. 
 
 A legacy to A and his executors and admin- 
 istrators, legal representatives or personal 
 representatives, gives A an absolute interest 
 in the legacy ; 15 Ves. 537 ; 1 Coll. 108 ; 118 
 Mass. 198 ; 18 Gratt. 529 ; L. R. 4 Eq. 359. 
 But in some instances these words will be 
 taken as words not of limitation but of pur- 
 chase ; 6 Sim. 47 ; L. R. 4 Eq. 359 ; 2 Beav. 
 67; 25 Md. 401. Generally when persons 
 take under this description they will be bound 
 to apply the legacy as the personal estate of 
 the testator or intestate ; 3 Bro. C. C. 224 ; 2 
 Yeates, 587 ; 8 Sim. 328. But see 1 Anstr. 
 128. 
 
 Mistakes in the name or description of 
 legatees may be corrected whenever it can 
 be clearly shown by the will itself what was 
 intended; 1 Phill. 279, 288; 2 Youn-re & 0. 
 72; 10 Hare, 345; 8 Md. 496; 15°N. H. 
 317; 32 id. 268; 4 Johns. Ch. 607; 23 Vt. 
 336 ; 7 Ired. Eq. 201 ; 15 Gray, 347 ; 59 N. 
 Y. 441 ; L. R. 10 E(j. 29. 
 
 The only instances m which parol evidence 
 is admissible to show the intention of the tes- 
 tator as to a legatee imperfectly described, is 
 that of a strict equivocation : that is, where 
 
 it appears from extraneous evidence that two 
 or more persons answer the description in the 
 will ; 8 Bingh. 244 ; 5 M. & W. 363 ; 2 
 Younse & C. 72 ; 12 Ad. & E. 451 ; L. R. 2 
 P. &I). 8; L. R. llEq. Cas.578; 15 N. H. 
 330 ; 49 Me. 288 ; 3 Watts, 385 ; 24 Penn. 
 199; 59 N. Y. 441 ; and toexplain names in 
 the will, which the testator has used and which 
 are peculiar or incomprehensible owing to tes- 
 tator's idiosyncrasies or other reasons ; 2 P. 
 Wms. 141 ; 4 John. Ch. 607 ; 5 H. L. Cas. 
 168. 
 
 Interest of legatee. Property given spe- 
 cifically to one for life, and remainder over, 
 must be enjoyed specifically during the life 
 of the first donee, although that may exhaust 
 it; 4 My. & Cr. 299; 2 My. & K. 703; L. 
 R. 11 Eq. 80; 45 N. H. 261; 6 Gill. & J. 
 171 ; 17 S. & R. 293 ; 2 Md. Ch. 190. But 
 where the bequest is not specific, as where 
 personal property is limited to one for life, 
 remainder over, it is presumed that the testa- 
 tor intended the same property to go over, 
 and if any portion of it be perishable, it shall 
 be sold and converted into permanent prop- 
 erty, for the benefit of all concerned ; 2 My. 
 &K. 699, 701, 702; 7 Ves. 137 ; 4My. &C. 
 298 ; L. R. 4 Eq. Cas. 295. 
 
 In personal property there cannot be a re- 
 mainder in the strict sense of the word, and 
 therefore every future bequest of personal 
 property, whether it be preceded or not by 
 any particular bequest, or limited on a cer- 
 tain or uncertain event, is properly an execu- 
 tory bequest, and falls under the rules by 
 which that mode of limitation is regulated ; 
 Fearne, Cont. Rem. 401, n. An executory 
 bequest cannot be prevented or destroyed by 
 any alteration whatsoever in the estate, out 
 of which or after which it is limited ; 8 Co. 
 96 a ; 10 id. 476. And this privilege of ex- 
 ecutory bequests, which exempts them from 
 being barred or destroyed, is the foundation 
 of an invariable rule, that the event on which 
 a limitation of this sort is permitted to take 
 effect must be such that the estate will neces- 
 sarily vest in interest from the time of its crea- 
 tion within a life or lives in being, and twen- 
 ty-one years thereafter and the fraction of 
 another year, allowing for the period of ges- 
 tation, afterwards; Fearne, Cont. Rem. 481. 
 _ Lapse of legacies. Unless the legatee sur- 
 vive the testator, as a rule neither he nor his 
 representatives have any claim to the legacy ; 
 2 W. & S. 450; 18 Pick. 41 ; 4 Strobh. Eq. 
 179; and the same rule applies where a legacy 
 is given to a man and his executors, etc. ; 1 
 P. Wms. 83 ; 3 Bro. C. C. 128 ; 108 Mass. 
 382; 39 Conn. 219. Though the testator 
 may expressly provide otherwise ; 1 Bro. 
 C. C. 84 ; L. R. 14 Eq. 848. Where the 
 legacy is payable at a future time a question 
 often arises as to when the legacy vests. The 
 rule seems to be that if a legacy is pay- 
 able or to he paid at a future time, then a 
 vested interest is conferred on the legatee eo 
 instante the testator dies, transmissible to his 
 executors or administrators ; 31 Beav. 425 j 
 
LEGACY 
 
 64 
 
 LEGACY 
 
 44 N. H. 281 ; 1 Ves. 217 ; 2 Sim. & S. 505 ; 
 6 W. & S. 517 ; 48 Me. 267 ; 9 Cush. 516 ; 
 2 Edw. Ch. 156. But if it be payable at, if, 
 when, in case, or provided a certain time comes 
 or contingency arrives, then tlie legatee's right 
 depends upon his being alive at the time fixed 
 for payment; 21 Pick. 311; 62 Me. 449; 
 37 Penn. 105; 3 R. I. 226; 106 Mass. 28; 
 4 Dana, 572 ; 3 Bro. C. C. 473 ; 5 Beav. 391. 
 For exceptions to this rule see 2 Will. Exec. 
 (6 Am. ed.) 1224, etc. 
 
 No particular form of words is requisite to 
 constitute one a residuary legatee. It must 
 appear to be the intention of the testator that 
 he shall take the residue of the estate, after 
 paying debts and meeting all other appoint- 
 ments of the will ; 2 Jac. & W. 399 ; 44 N. 
 H. 255; 9 Leigh, 361 ; 40 Conn. 264. The 
 right of the executor to the residue of the es- 
 tate when there is no residuary legatee is well 
 established, both at law and in equity, in 
 England, except so far as it is controlled 
 by statute ; 2 P. AVms. 340 ; 3 Atk. 228 ; 7 
 Ves. 288 ; but the rule has been controlled 
 in equity by aid of slight presumptions in 
 favor of the next of kin ; 1 Bro. C. C. 201 ; 
 14 Sim. 8, 12 ; 2 Sm. & G. 241 ; 14 Ves. 
 197; and is now altered by stat. 11 Geo. 
 IV. and 1 Wm. IV. c. 40. The rule never ob- 
 tained in this country, it is believed, to any 
 great extent ; 3 Binn. 557 ; 9 S. & K. 424 ; 
 6 Mass. 163; 2 Hayw. 298; 4 Leigh, 163; 
 9 S. & R. 186 ; 1 Penning. 44. 
 
 The assent of the executor to a legacy is 
 requisite to vest the title in the legatee ; 1 
 Bail. 504 ; 12 Ala. 532 ; 10 Huraphr. 559 ; 
 2 TMd. Ch. Dec. 162 ; 11 Gratt. 724 ; 8 How. 
 170; 2 Dev. & B. 254. This will often be 
 presumed where the legatee was in possession 
 of the thing at the decease of the testator, 
 and the executor acquiesces in his right. See 
 6 Pick. 126 ; 6 Call, 55 ; 23 Ala. 326; 4 Dev. 
 SeB. 40; 1 Bailey, Ch. 517. 
 
 Abatement. The general pecuniary legacies 
 are subject to abatement whenever the assets 
 are insufficient to answer the debts and speci- 
 fic legacies. The abatement must be upon all 
 pro rata ; 4 Brown, Ch. 349, 350 ; 13 Sim. 
 440; 106 Mass. 100; 71 Penn. 333 ; but a 
 residuary legatee has no right to call upon 
 general legatees to abate proportionally with 
 him ; 1 Dr. & S. 623 ; L. R. 3 Ch. App. 537 ; 
 
 1 Story, Eq. Jur. §8 555-575. And, gener- 
 ally, among general legatees there is a prefer- 
 ence of those who have relinquished any right 
 in consideration of their legacy over mere 
 volunteers; 106 Mass. 100; L. R. 3 Ch.Div. 
 714. Specific legatees must abate, pro rata, 
 when all the assets are exhausted except spe- 
 cific devises, and prove insufficient to pay debts; 
 
 2 Vern. 756 ; 1 P. Wms. 679; 2 Bla. Com. 513. 
 
 Demonstrative legacies will not abate under 
 general legacies; 11 Ves. 607; 11 CI. & F. 
 509; 25 N. Y. 128. In default of special 
 provision the following order is observed in 
 calling upon the estate to supply a deficiency 
 of assets; (1) General residuary estate; 
 (2) Estate devised for payment for debts; 
 
 (3) Real estate descended; (4) Real estate 
 devised subject to debts ; (5) General lega. 
 cies ; (6) Specific legacies and devises j>ro 
 rata ; 11 Penn. 72. 
 
 Ademption of legacies. A specific legacy 
 is revoked by the sale or change of form of 
 the thing bequeathed : as, by converting a 
 gold chain into a cup, or wool into cloth, or 
 cloth into garments; 2 Bro. C. C. 110; 7 
 Johns. Ch. 262 ; so if a debt specifically be- 
 queathed be received by the testator the 
 legacy is adeemed ; 3 Bro. C. C. 431 ; 7 
 Johns. Ch. 262; 23 N. H. 218; 10 Ohio, 
 64 ; and so of stock, which is partially or 
 wholly disposed of by testator before his 
 death; 6 Pick. 212; 28 Penn. 363 ; 1 Ves. 
 Sen. 426 ; 7 Johns. Ch. 258. A demonstra- 
 tive legacy is not adeemed by the sale of 
 change of the fund; 15 Ves. 384: 6 H. L. 
 Cas. 883; 11 CI. & F. 509; 16 Penn. 275; 
 25 N. Y. 128; 13 Allen, 256. A legacy to 
 a child is regarded in courts of equity as a 
 portion for such child : hence, when the tes- 
 tator, after giving such a legacy, settles the 
 child and gives a portion, it is regarded as an 
 ademption of the legacy. And it will make 
 no difference that the portion given in settle- 
 ment is less than the legacy : it will still 
 adeem the legacy pro tanto ; 2»Vern. 257; 
 15 Beav. 565; 5 My. & C. 29 ; L. R. 14 
 Eq. 236 ; 16 N. Y. 9 ; 16 Penn. 212 ; 5 Rand. 
 577; 2 Story, Eq. Jur. §§ 1111-1113. 
 
 Payment of legacies. A legacy given 
 generally, if no time of payment be named, 
 IS due at the death of the testator, although 
 not payable until the executor has time to 
 settle the estate in due course of law. See 
 Devise. Legacies are not due by the civil 
 law or the common law until one year after 
 the decease of the testator, and from that 
 time interest is chargeable on them. The 
 same term is generally allowed the executor 
 in the American states to dispose of the estate 
 and pay debts, and sometimes, by special 
 order of the probate court, this is extended, 
 from time to time, according to circumstances ; 
 13 Ves. 333 ; 12 N. Y. 474 ; 41 N. H. 391 : 
 21 Md. 156 ; 105 Mass. 431 ; 4 CI. & F. 
 276; 6 Binn. 475. 
 
 An annuity given by will shall commence 
 at the death of the testator, and the first pay- 
 ment fall due one year thereafter ; 3 Madd. 
 167 ; 1 Sumn. 19 ; 42 Barb. 533 ; 5 W. & S. 
 30. A distinction is taken between an annu- 
 ity and a legacy, in the matter of interest. 
 In the latter case, no interest begins to accu- 
 mulate until the end of one year from the 
 death of the testator; 1 Sch. & L. 301 ; 
 17 S. &R. 396; 2 Roper, Leg. 1253. In 
 cases where a legacy is given a child as a por- 
 tion, payable at a certain age, this will draw 
 interest from the death of th^e testator ; L. R. 
 1 Eq. 869; U Ves. 2; 5 Binn. 477, 479; 
 4 Rawle, 113, but this rule does not ap- 
 ply when any other provision is made for 
 the child; 9 Beav. 164; 19 Pe„n. 49; 16 
 m ^1-2*3 5 41 N.H. 393; U Allen, 
 
LEGACY 
 
 65 
 
 LEGAL ESTATE 
 
 Where legatees are under disabilities, as 
 infancy or coverture, the executor cannot 
 discharge himself by payment, except to 
 some party having a legal right to receive the 
 same on the part of the legatee, which in the , 
 case of an infant is the legally-appointed 
 guardian ; 9 Mete. 435 ; 1 Johns. Ch. 3 ; 106 
 Mass, 586 ; 1 V. Wms. 285 ; and in the case 
 of a married woman the husband ; 1 Vern. 
 261 ; but in the latter case the executor may 
 decline to pay the legacy until the husband 
 make a suitable provision out of it for the 
 wife, according to the order of the court of 
 chancery; 8 Bligh, 224-; Bisph. Eq. § 109. 
 By statute in England and in some of the 
 United States the executor is allowed in such 
 cases to deposit the money on interest, sub- 
 ject to the order of the court of chancery ; 
 2 Will. Exec. (6th Am. ed.) 1407. The exe- 
 cutor is liable for interest upon legacies, when- 
 ever he has realized it, by investing the 
 amount; L. R. 5 Ch. App. 233; 114 Mass. 
 404; 16 How. 542 ; and usually with annual 
 rests; 29 Beav. 586; 23 N. J. Eq. 192; 
 109 Mass. 541. Where an executor was com- 
 pelled to pay money out of his own funds on 
 account of the devastamt of a co-executor, 
 and the matter had lain along for many years 
 on account of the infancy of the legatees, no 
 interest was allowed under the special cir- 
 cumstances until the filing of the bill; 9 Vt. 41. 
 
 The better opinion is that at common law 
 no action lay against an executor for a general 
 legacy ; 5 Term, 690. But in case of a 
 specific legacy it will lie after the assent of 
 the executor; 5 Gray, 67; 114 Mass. 26; 
 and in the United States assumpsit will 
 generally lie for all legacies even before 
 assent by the executor ; 30 N. H. 505 ; 
 6 N. J. Law, 432 ; 12 Penn. 341 ; 2 Johns. 
 243 ; 6 Conn. 176 ; 2 Hayw. 153 ; 63 Me. 537. 
 
 The proper remedy for the recovery of a 
 legacy is in equity ; 5 Term, 690 ; 35 N. H. 
 349; 71 N. C.281; 35 N. H. 339 ; Will. 
 Exec. (6th Am. ed.) 2005. In most of the 
 United States summary proceedings to recover 
 legacies are provided in the orphans' or pro- 
 bate courts. 
 
 Satisfaction of debt by legacy. In courts 
 of equity, if a legacy equal or exceed the 
 debt, it is presumed to have been intended to 
 go in satisfaction ; but if the legacy be less 
 than the debt, it shall not be deemed satisfac- 
 tion pro tanto; 16 Vt. 150; 12 Mass. 391 ; 
 3 S. & R. 54 ; 3 W. C. C. 43 ; 8 Cow. 246 ; 
 1_ Lowell, 418. But courts allow very slight 
 circumstances to rebut this presumption of 
 payment : as, where the debt was not con- 
 tracted until after the making of the will ; 2 
 P. Wms. 343 ; Free, in Chan. 240 ; 3 P. 
 Wms. 353 ; 4 Madd. 325 ; 2 Salk. 608 ; 
 where the debt is unliquidated, and the 
 amount due not known ; 1 P. Wms. 299 ; 
 where the debt was due upon a bill or 
 note negotiable; 3 Ves. 561 ; 1 Root, 159 ; 
 1 Allen, 1 29 ; where the legacy is made 
 payable after the debt falls due; 3 Atk. 
 96 ; where the legacy appears from the will 
 Vol. IL— 5 
 
 to have been given diverso intuitu; 2 Ves. 
 Sen. Ch. 635 ; 2 Gill & J. 185 ; where there 
 is express direction in the will for the pay- 
 ment of all debts and legacies, or the legacy 
 is expressed to be for some other reason ; 1 
 P. Wms. 410. The same rule applies where 
 the legacy is of a different nature from the 
 debt ; 1 Atk. 428 ; 3 Atk. 65, 68 ; 2 Story, 
 Eq. Jur. §§ 1110-1113; Brightly, Eq. Jur. 
 §§ 382, 391 ; as a rule, the American cases are 
 not favorable to the doctrine of satisfaction. 
 
 Release of debt by a legacy. If one leave 
 a legacy to his debtor, it is not to be regarded 
 as a release of the debt unless that appears 
 to have been the intention of the testator ; 4 
 6ro. C. C. 226; 15 Sim. Ch. 554; 5 Ala. 
 245 ; and parol evidence is admissible to 
 prove this intention ; 6 Ves. 341 ; 23 Beav. 
 404 ; 2 Dev. Ch. 488. 
 
 Where one appoints his debtor his execu- 
 tor, it is at law regarded as a release of 
 the debt; Co. Litt. 264; 8 Co. 136 a; but 
 this is now controlled by statute in England 
 and in many of the United States ; 116 Mass. 
 552; 15 Penn. 533; 9 Conn. 470; 7 Cow. 
 781. But in equity it is considered that the 
 executor is still liable to account for the 
 amount of his own debt; 11 Ves. Ch. 90, 
 nn. 1, 2, 3 ; 13 id. 262, 264. 
 
 where one appoints his creditor executor, 
 and he has assets, it operates to discharge 
 the debt, but not otherwise ; 2 Will. Exec. 
 (6th Am. ed.) 1316, etc. ; 2 Show. 401 ; 1 
 Salk. 304. See, generally. Toller, Williams, 
 on Executors, Roper on Legacies, Jarman on 
 Wills. 
 
 LEGAL. That which is according to law. 
 It is used in opposition to equitable : as, the 
 legal estate is in the trustee, the eqiiitable es- 
 tate in the cestui que trust. But see Powell, 
 Mortg. Index. 
 
 LEGAL ASSETS. Such property of a 
 testator in the hands of his executor as is lia- 
 able to debts in temporal courts and to lega- 
 cies in the spiritual by course of law ; equita- 
 ble assets are such as are liable only by help 
 of a court of equity. 2 Will. Exec. 1408- 
 1431, Amer. notes. No such distinction ex- 
 ists in Pennsylvania; 1 Ashm. 347. See 
 Story, Eq. Jur. § 551 ; 2 Jarm. Wills, 543. 
 
 LEGAL ESTATE. One the right to 
 which may be enforced in a court of law. 
 
 It is distinguished from an equitable estate, 
 the riglit to which can be established only in a 
 court of equity. 2 Bouvier, Inst. n. 1688. 
 
 The party who has the legal title has alone the 
 right to seek a remedy for a wrong to his estate, 
 in a court of law, thougli he may have no bene- 
 ficial interest in it. The equitable owner is he 
 who has not the legal estate, but is entitled to 
 the beneficial interest. 
 
 The person who holds the legal estate for the' 
 benefit of another is called a trustee ; he who 
 has the beneficiary interest and does not hold the 
 legal title is called the beneficiary, or, more 
 technically, the cestui que trust. 
 
 When the trustee has a claim, he must enforce 
 his right in a court of equity, for he cannot sue 
 any one at law in his own name ; 1 East, 497 ; 8 
 
LEGALIZATION 
 
 66 
 
 LEGES 
 
 Term, 322; 1 Saund. 158, n. 1 ; 2 Bingh. 20; 
 still less can he in such court sue his own trus- 
 tee ; 1 East, 497. 
 
 LEGALIZATION. The act of making 
 lawful. 
 
 By legalization is also understood the act 
 by which a judge or competent officer authen- 
 ticates a record, or other matter, in order that 
 the same may be lawfully read in evidence. 
 
 LEGAL TENDER. That currency 
 ■which has been made suitable by law for the 
 purposes of a tender in the payment of debts. 
 
 The following descriptions of currency are 
 legal tender in the United States : — 
 
 All the gold coins of the United States anp 
 a legal tender in all payments at their nominal 
 value when not below the standard weight 
 and limit of tolerance provided by law for the 
 single piece, and, when reduced in weight be- 
 low such standard tolerance, they are a legal 
 tender at valuation in proportion to their 
 actual weight. The silver dollar of 412^ 
 grains is a legal tender for all debts and dues, 
 public and private, except where otherwise 
 expressly stipulated in the contract. The 
 silver coins of the United States of smaller 
 denominations than one dollar are a legal 
 tender in all sums not exceeding ten dollars 
 in payment of all dues, public and private. 
 The trade dollar of 420 grains is not a legal 
 tender. The five-cent piece, the three-cent 
 piece, and the one-cent piece are legal tender 
 for any amount not exceeding twenty-five 
 cents in any one payment. No foreign coins 
 are now a legal tender. 
 
 By acts of Feb. 25, 1862, July 11, 1862, 
 and March 3, 1863, congress authorized the 
 issue of notes of the United States, declaring 
 them a legal tender for all debts, public and 
 private, except duties on imports and interest 
 on the public debt. 12 Stat, at L. 345, 532, 
 709. These notes are obligations of the 
 United States, and are exempt from state 
 taxation ; 7 Wall. 26 ; but where a state 
 requires its taxes to be paid in coin, they 
 cannot be discharged by a tender of these 
 notes. A debt created prior to the passage 
 of the legal tender acts, and payable by the 
 express terms of the contract in gold and sil- 
 ver coins, cannot be satisfied by a tender of 
 treasury notes; 7 Wall. 229; trf. 258 ; 12 
 id. 687. The legal tender acts are constitu- 
 tional, as applied to pre-existing contracts, as 
 well as to those made subsequent to their pas- 
 sage; 12 Wall. 457; per Strong, J., over- 
 ruling the previous opinion of the court in 8 
 Wall. 604, per Chase, C. J. See 17 Am. L. 
 Keg. 193; 19 id. 73; 21 id. 601. 
 
 A postage currency has also been author- 
 ized, which is receivable in payment of all 
 dues to the United States less than five dol- 
 lars. They are not, however, a legal tender 
 in payment of private debts. (Act of Con- 
 gress, approved July 17, 1862.) 
 
 LEGALIS HOMO (Lat.). A person 
 who stands rectus in curia, who possesses all 
 his civil jights. A lawful man. One who 
 
 stands rectus in curia, not outlawed nor in- 
 famous. In this sense are the words probi 
 et legates homines. 
 
 LEGANTINE CONSTITUTIONS. 
 
 The name of a code of ecclesiastical laws, en- 
 acted in national synods, held under legates 
 from Pope Gregory IX. and Clement IV., 
 in the reign of Hen. III., about the years 
 1220 and 1268. 1 Bla. Com. 83. Burn says, 
 1237 and 1268. 2 Burn, Eccl. Law, 30 d. 
 
 LEGATARY. One to whom anything 
 is bequeathed ; a legatee. This word is 
 sometimes, though seldom, used to designate 
 a legate or nuncio. 
 
 LEGATEE. The person to whom a 
 legacy is given. See Legacy. 
 
 LEGATES. Legates are extraordinary 
 ambassadors sent by the pope to catholic 
 countries to represent him and to exercise his 
 jurisdiction. They are distinguished from 
 the ambassadors of the pope who are sent to 
 other powers. 
 
 Legates & latere hold the first rank among 
 those who are honored by a legation ; they 
 are always chosen from the college of cardi- 
 nals, and are called d latere, in imitation of 
 the magistrates of ancient Rome, who were 
 taken from the court or side of the emperor. 
 
 Legati missi are simple envoys. 
 
 Legati nati are those who are entitled to 
 be legates by birth. See A Latere. 
 
 LEGATION. An embassy; a mission. 
 All persons attached to a foreign legation, 
 lawfully acknowledged by the government of 
 this country, whether they are ambassadors^ 
 envoys, ministers, or attaches, are protected 
 by the act of April 30, 1790, 1 Story, Laws, 
 83, from violence, arrest, or molestation ; 
 1 Dall. 117; 1 Wash. C. C. 232; 2 id. 436; 
 4 id. 531; 11 Wheat. 467; 1 Miles, 366; 
 1 N. & M'C. 217; 1 Baldw. 240; Wheat. 
 Int. Law, 167. See Ambassador; Ar- 
 rest ; Pbivilege. 
 
 LEGATORY. The third part of a free- 
 man's personal estate, which by the custom 
 of London, in case he had a wife and chil- 
 dren, the freeman might always have dis- 
 posed of by will. Bacon, Abr. Customs of 
 London (D 4). "^ 
 
 LEGES (Lat.). In ClvU Law. Laws 
 proposed by a magistrate of the senate and 
 adopted by the whole people in comitia cen- 
 turiata. See Populiscitum ; Lex. 
 
 In English Law. Laws. Scripta. 
 
 Leges scripta:, written or statute laws. 
 
 Leges non scriptce, unwritten or customary 
 laws; the common law, including general 
 customs, or the common law properly so 
 called; and also particular customs of certain 
 parts of the kingdom, and those particular 
 laws that are, by custom, observed only in 
 certain courts and jurisdictions. 1 Bla. Com. 
 67. These parts of law are therefore styled 
 iejres non «crv«<B because their original in- 
 stitution and authority are not set down in 
 writing, as acts of pariiament are, but they 
 
LEGISLATIVE POWER 
 
 67 
 
 LEGITIME 
 
 receive their binding power and the force of 
 laws by long and immemorial usage." 1 
 Steph. Cora. 40, 66. It is not to be under- 
 stood, however, that they are merely oral ; 
 for they have come down to us in reports and 
 treatises. 
 
 LEGISLATIVE POWER. The au- 
 thority, under the constitution, to make laws, 
 and to alter and repeal them. 
 
 LEGISLATOR. One who makes laws. 
 
 LEGISLATURE. That body of men in 
 the state which has the power of making laws. 
 
 By the constitution of the United States, 
 art. 1, § 1, all legislative powers granted by 
 it are vested in a congress of the United 
 States, which shall consist of a senate and 
 house of representatives. 
 
 It requires the consent of a majority of 
 each branch of the legislature in order to en- 
 act a law, and then it must be approved by 
 the president of the United States, or, in case 
 of his refusal, by two-thirds of each house ; 
 U. S. Const, art. 1, § 7, 2. 
 
 Most of the constitutions of the several 
 states contain provisions nearly similar to 
 this. In general, the legislature will not, and, 
 by the constitutions of some of the states, 
 cannot, exercise judicial functions : yet the 
 use of such power upon particular occasions 
 is not without example. 
 
 LEGITIM (called, otherwise. Bairn's 
 Part of Gear). In Scotch Iinvr. The legal 
 share of father's free movable property, due 
 on his death to his children : if widow and 
 children are left, it is one-third ; if children 
 alone, one-half; Ersk. Inst. 3. 9. 20; 4 Bell, 
 H. L. Cas. 286. 
 
 LEGITIMAC7. The state of being bom 
 in wedlock ; that is, in a lawful manner. 
 
 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 off- 
 spring of such marriage are not legitimate ; 
 1 Phill. Ev.; La. Civ. Code, art. 203 to 216. 
 
 In Virginia, it is provided, by statute of 
 1787, "that the issue of marriages deemed 
 null in law shall nevertheless be legitimate." 
 3 Hen. & M. 228, n. 
 
 A strong presumption of legitimacy arises 
 from marriage and cohabitation ; and proof 
 of the mother's irregularities will not destroy 
 this presumption : pater est quern nuptice de- 
 monstrant. To rebut this presumption, cir- 
 cumstances must be shown which render it 
 impossible that the husband should be the 
 father, as impotency and the like ; 3 Bouvier, 
 Inst. n. 3062. See Bastard. 
 
 LEGITIMATE. That which is according 
 to law: as, legitimate children are lawfu! 
 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 ijot so born. 
 
 In Louisiana, the Civil Code, art. 217, 
 enacts that "children born out of marriage, 
 except those who are born of an incestuous 
 or adulterous connection, may be legitimated 
 by the subsequent marriage of their father and 
 mother, whenever the latter have legally ac- 
 knowledged them for their children, either 
 before their marriage, or by the contract of 
 marriage itself." 
 
 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 mo- 
 ther to her illegitimate children and their 
 representatives, and from such child, for want 
 of descendants, to brothers and sisters, bora 
 of the same mother, and their representatives. 
 Prince's Dig. 202. In Alabama, Kentucky, 
 Mississippi, Pennsylvania, Vermont, and Vir- 
 ginia, subsequent marriage of parents, and 
 recognition by the father, legitimize an ille- 
 gitimate child ; and the law is the same in 
 Massachusetts, for all purposes except inher- 
 iting from their kindred. Mass. Kev. Stat. 
 414. 
 
 The subsequent marriage of parents legiti- 
 matizes the child in Illinois ; but he must be 
 afterwards acknowledged. The same rule 
 seems to 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 from 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 Ala- 
 bama, Connecticut, Illinois, Indiana, Ken- 
 tucky, 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, 
 Abr. §§ 24-35, and authorities cited. See 
 Descent. 
 
 LEGITIME. In Civil Law. That por- 
 tion of a parent's estate of which he cannot 
 disinherit his children without a legal cause. 
 
 The civil code of Louisiana declares that dona- 
 tions inter vivos or mortis causd 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 under- 
 stood that they are only counted for the child 
 they represent. La. Civ. Code, art. 1480. 
 
 In Holland, Germany, and Spain, the princi- 
 ples of the Falcidian law, more or less limited, 
 have been generally adopted. Coop. Just. 516. 
 
 In the United States, other than Louisiana, 
 and in England, there is no restriction on the 
 
LENDER 
 
 68 
 
 LETTER OF ATTORNEY 
 
 right of bequeathing. But this power of be- 
 queathing 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 
 60 e converso if he had no children, the wife was 
 entitled to one moiety, and he might bequeat^i 
 the other ; but if he died without either wife or 
 issue, the whole was at his own disposal. Glan- 
 ville, 1. 8, c. 5 ; Bracton, 1. 3, c. 26. The shares 
 of the wife and children were called their rea- 
 sonable part, a Bla. Com. 491. .See Death's 
 Pakt ; Faloidian Law. 
 
 IiENDER. He from whom a thing is 
 borrowed. The bailor of an article loaned. 
 See Bailment ; Loan. 
 
 LESION. In Civil Law. A term 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. 
 
 The remedy given for this injury is founded 
 on its being the effect of implied error or im- 
 position ; for in every commutative contract 
 equivalents are supposed to be given and re- 
 ceived. La. Code, art. 1854. Persons of 
 full age, however, are not allowed in point of 
 law to object to their agreements as being in- 
 jurious, unless the injury be excessive. Po- 
 thier, Obi. p. 1, c. 1, s. 1, art. 3, § 4. But 
 minors are admitted to restitution, not only 
 against any excessive inequality, but against 
 any inequality whatever. Pothier, Obi. p. 1, 
 c. 1, s. 1, art. 3, § 5; La. Code, art. 1858. 
 See Fraud ; Guardian ; Sale. 
 
 LESSEE. He to whom a lease is made. 
 He who holds an estate by virtue of a lease. 
 See Lkase. 
 
 LESSOR. He who grants a lease. See 
 Lease ; Landlord and Tenant. 
 
 LESTAG-E, LASTAGE (Sax. last, bur- 
 den). A custom for carrying things in fairs 
 and markets. Fleta, 1. 1, c. 47 ; 'Termes de 
 la Ley. 
 
 LET. Hindrance;, obstacle; obstruction, 
 To lease ; to grant the use and possession of 
 a thing for compensation. It is the correla- 
 tive of hire. See Hire. To award a con- 
 tract of some work to a proposer, after pro- 
 posals have been received ; 35 Ala. 33. 
 
 LETTER. He who, being the owner of a 
 thing, lets it out to another for hire or com- 
 pensation. Story, Bailm. § 369. See Hiring. 
 
 LETTER. An epistle; a dispatch; a 
 written message, usually on paper, folded up 
 and sealed, and sent by onejjerson to another. 
 1 Caines, 582. 
 
 The business of transporting and delivering 
 letters between different towns, states, and 
 countries, and from one part of a city to an 
 other, is undertaken by the government, and 
 private persons are forbidden to enter into 
 competition. 
 
 In the United States by act of congress, 
 severe penalties are inflicted upon all persons 
 who interfere with the rapid transportation of 
 the mails, and upon all officers who tamper 
 with the mails, as by opening letters, secreting 
 the contents, etc., and competition by private 
 individuals is prohibited ; R. S. 3982. 
 
 Severe penalties are also provided for the 
 punishment of all persons sending obscene, 
 scurrilous, or disloyal books, pamphlets, or arti- 
 cles through the mails. Letters and circulars 
 regarding illegal lotteries are also forbidden ; 
 R. S. 3893. 
 
 It is no defence to an indictment under this 
 statute, that the matter mailed was sent to a de- 
 tective who wrote a decoy letter solicitingit under 
 a fictitious name ; 11 Blatchf. 346 ; 10 Fed. Rep. 
 92, note. 
 
 Contracts may be made by letter ; and when 
 a proposal is made by letter, the mailing a 
 letter containing an acceptance of the proposal 
 completes the contract; 6 Wend. 104; IB. 
 & Aid. 681 ; 6 Hare, 1 ; 1 H. L. Cas. 381 ; 
 11 N. Y. 441 ; 4 Ga. 1 ; 12 Conn. 431 ; 7 
 Dana, 281; 6 Penn. 339; 9 How. 390; 4 
 Wheat. 228; L. R. 4 Eq. 9; L. R. 7 Ch. 
 App. 687. See 23 Am. Law Reg. 401 ; 29 
 id. 21 ; 2 Kent, *477, n. ; Holmes, Com. Law, 
 305. This doctrine has sometimes been ques- 
 tioned, and it has been held that the letter of 
 acceptance must be received by the offerer be- 
 fore the contract becomes complete ; 1 Pick. 
 281 ; L. R. 6 Ex. 108 (but see 7 Ch. App. 
 592). See Merlin, R6p. Jur. tit. Venle, 1, 
 art. iii. ; Langd. Contr. 15 ; 7 Am. L. Rev. 
 433; L. R. 13 Eq. 148. 
 
 Payments may be made by letter at the 
 risk of the creditor, when the debtor is author- 
 ized, expressly, or impliedly from the usual 
 course of business, and not otherwise ; Peake, 
 67 ; 1 Ex. 477 ; Ry. & M. 149 ; 3 Mass. 249. 
 
 LETTER or ADVICE. In Common 
 Law. A letter containing information of 
 any circumstances unknown to the person to 
 whom it is written ; generally informing him 
 of some act done by the writer of the letter. 
 
 It is usual and perfectly proper for the 
 drawer of a bill of exchange to write a letter 
 of advice to the drawee, as well to prevent 
 fraud or alteration of the bill, as to let the 
 drawee know what provision has been made 
 for the payment of the bill. Chitty, Bills, 
 
 LETTER or ADVOCATION. In 
 Scotch Law. The decree or warrant of the 
 supreme court or court of sessions, discharg- 
 ing the inferior tribunal from all further pro- 
 ceedings in the matter and advocating the 
 action to itself. This proceeding is similar 
 to a certiorari issuing out of a superior court 
 for the removal of a cause from an inferior. 
 
 LETTER OP ATTORNEY. In Prac 
 tioe. A written instrument, by which one 
 or more persons, called the constituents, an- 
 thorize one or more other persons, called the 
 attorneys to do some lawful act by the latter 
 I for or instead, and m the place, of the former ; 
 
LETTER BOOK 
 
 69 
 
 LETTER OF LICENSE 
 
 1 Moody, 52, 70. It may be parol or under 
 seal. It is equivalent to Power op Attor- 
 ney, q.v. 
 
 LETTER BOOK. In Common Law. 
 
 A book containing the copies of letters writ- 
 ten by a merchant or trader to his correspon- 
 dents. 
 
 A press copy in a letter book stands in the 
 same relation to the original as a copy taken 
 from the letter book; both are secondary evi- 
 dence, and are receivable on the loss of, or after 
 notice to produce, the original: but the decisions 
 are not entirely uniform on this point ; 3 Camp. 
 305 ; 37 Conn. 555 ; 102 Mass. 362 : see Bouv. 
 Inst. n. 3143 ; 1 Stark. Ev. 356 ; 1 Whart. Ev. 
 §§ 72, 93, 133 ; 1 Greenl. Ev. § 116. See Copy ; 
 Evidence. 
 
 LETTER CARRIER. A person em- 
 ployed to carry letter? from the post-office to 
 the persons to whom they are addressed. Pro- 
 visions are made by the act of March 3, 1851, 
 11 U. S. Stat, at Large, 591, for the appoint- 
 ment of letter carriers in cities and towns, 
 and by c. 21, § 2 of the same act, for letter 
 carriers in Oregon and California. 
 
 See acts of June 23, 1874, and Feb. 21, 1879, 
 E. S. 3865, 3874, 3980, 3996, and E. S. Suppl. pp. 
 95, 414, 415. 
 
 LETTER OP CREDENCE. In Inter- 
 national Law. A written instrument ad- 
 dressed by the sovereign or chief magistrate 
 of a state to the sovereign or state to whom 
 a public minisl^er is sent, certifying his ap- 
 pointment as such, and the general object of 
 his mission, and requesting that full faith and 
 credit may be given to what he shall do and 
 say on the part of his court. 
 
 When it is given to an ambassador, envoy, or 
 minister accredited to a sovereign, it is addressed 
 to the sovereign or state to whom the minister is 
 delegated ; in the case of a chargt d'affaires, it 
 is addressed by the secretary or minister of state 
 charged with the department of foreign affairs 
 to the minister of foreign affairs of the other 
 government ; Wheat. Int. Law, pt. 3, c. 1, § 7 ; 
 Wicquefort, de I'Ambassadeur, 1. 1, § 15. 
 
 LETTER OP CREDIT. An open or 
 sealed letter, from a merchant in one place, 
 directed to another, in another place or 
 country, requiring him, if a person therein 
 named, or the bearer of the letter, shall have 
 occasion to buy commodities, or to want 
 money to any particular or unlimited amount, 
 either to procure the same, or to pass his 
 promise, bill, or other engagement for it, the 
 writer of the letter undertaking to provide 
 him the money for the goods, or to repay him 
 by exchange, or to give him such satisfaction 
 as he shall require, either for himself or the 
 bearer of the letter; 3 Chitty, Com. Law, 
 336. And see 4 id. 259, for a form of such 
 letter. 
 
 These letters are either general or special : 
 the former is directed to the writer's friends 
 or correspondents generally, where the bearer 
 of the letter may happen to go ; the latter is 
 directed to some particular person. When 
 the letter is presented to the person to whom 
 it is addressed, he either agrees to comply 
 
 with the request, in which case he imme- 
 diately becomes bound to fulfil all the engage- 
 ments therein mentioned; or he refuses, in 
 which case the bearer should return it to the 
 giver without any other proceeding, unless, 
 indeed, the merchant to whom the letter is 
 directed is a debtor of the merchant who gave 
 the letter, in which case he should procure 
 the letter to be protested; 3 Chitty, Com. 
 Law, 337; Malyn, 76; 1 Beaw. Lex Mer. 
 607; Hall, Adm. Pr. 14; 4 Ohio, 197. 
 
 In England it seems questionable whether an 
 action can be maintained by one who advances 
 money on a general letter of credit; 2 Stoiy, 
 214 ; 11 M. & W. 383 ; the reason given being 
 that there is no privity of contract between the 
 mandant and the mandatory. But in this coun- 
 try the contrary doctrine is well settled ; 3 N. T. 
 214 ; 5 Hill, N. Y. 643 ; 68 Penn. 102 ; 54 Miss. 1 ; 
 s. c. 28 Am. Eep. 347, n. In England, a letter 
 of credit Is not negotiable ; 1 Macq. 513 ; Grant, 
 Bank. ch. 15 ; except when it relates to bills of 
 exchange; L. E. 2 Ch. App. 397; 3 id. 154. 
 The same rule has been generally followed here, 
 but it has been held that a general letter of credit, 
 if it authorize more than a single transaction 
 with the party to whom it is granted, may be 
 honored by several persons successively, keeping 
 within the specified aggregate ; 3 N. T. 203 : 
 22 Vt. 160. 
 
 The debt which arises on such letter, in its 
 simplest form, when complied with, is be- 
 tween the mandatory and the mandant; 
 though it may be so conceived as to raise a 
 debt also against the person who is supplied 
 by the mandatory. First, when the letter is 
 purchased with money by the person wishing 
 for the foreign credit, or is granted in conse- 
 quence of a check on his cash account, or 
 procured on the credit of securities lodged 
 with the person who granted it, or in pay- 
 ment of money due by him to the payee, the 
 letter is, in its effects, similar to a bill of 
 exchange drawn on the foreign merchant. 
 The paj-ment of the money by the person on 
 whom the letter is granted raises a debt, or 
 goes into account between him and the writer 
 of the letter, but raises no debt to the person 
 who pays on the letter, against him to whom 
 the money is paid. Second, when not so 
 purchased, but truly an accommodation, and 
 meant to raise a, debt on the person accom- 
 modated, the engagement generally is, to see 
 paid any advances made to him, or to guar- 
 anty any draft accepted or bill discounted ; 
 and the compliance with the mandate, in such 
 case, raises a debt both against the writer of 
 the letter and against the person accredited ; 
 ] Bell, Com. 371, 5th ed. The bearer of 
 the letter of credit is not considered bound to 
 receive the money ; he may use the letter as 
 he pleases, and he contracts an obligation 
 only by receiving the money ; Pothier, Contr, 
 de Change, 237. 
 
 LETTER OP LICENSE. An instru- 
 ment or writing made by creditors to their 
 insolvent debtor, by which they bind them- 
 selves to allow him a longer time than he had 
 a right to, for the payment of his debts, and 
 that they will not arrest or molest him in his 
 
LETTER OF MARQUE 
 
 70 
 
 LETTERS PATENT 
 
 — t 
 
 person or property till after the expiration 
 of such additional time. Since the general 
 abolition of imprisonment for debt, and under 
 the modern system of -laws for settling insol- 
 vents' estates, it is seldom, if ever, used. 
 
 LETTER OP MARQTJE AND RE- 
 PRISAL. A commission granted by the 
 government to a private individual, to take 
 the property of a foreign state, or of the 
 citizens or subjects of such state, as a repara- 
 tion for an injury committed by such state, 
 its citizens or subjects. The prizes so cap- 
 tured are divided between the owners of the 
 privateer, the captain, and the crew. A ves- 
 sel loaded with merchandise, on a voyage to 
 a friendly port, but armed for its own defence 
 in case of attack by an enemy, is also called 
 a letter of marque. 1 Boulay-Paty, tit. 3, 
 § 2, p. 300. 
 
 By the constitution, art. 1, § 8, cl. 11, con- 
 gress have power to grant letters of marque 
 and reprisal. And by another section of the 
 same instrument this power is prohibited to 
 the several states. The granting of letters 
 of marque is not always a preliminary to war 
 or necessarily designed to provoke it. . It is a 
 hostile measure for unredressed grievances, real 
 or suppbsed ; Story, Const. § 1356. This is 
 a means short of actual war, well recognized 
 in international law, for terminating difl'er- 
 ences between nations ; Wheat. Int. Law, 
 § 290. Special reprisals are when letters of 
 marque are granted in time of peace, to par- 
 ticular individuals who have suffered an in- 
 jury from the government or subjects of another 
 nation ; they are to be granted only in case 
 of clear and open denial of justice ; id. § 291. 
 See Chitty, Law of Nat. 73 ; 1 Bla. Com. 
 251 ; Viner, Abr. Prerogative (B 4) ; Co- 
 myns. Dig. Prerogative (B 4) ; MoUoy, b. 
 1, c. 2, § 10 ; 2 Woodd. 440 ; 2 C. Rob. 224 ; 
 5 id. 9, 260. And see Rkpkisal ; Priva- 
 TEKK ; Declaration or Paris. 
 
 LETTER MISSIVE. In English Law. 
 A letter from the king or queen to a dean and 
 chapter, containing the name of the person 
 whom he would have them elect as bishop. 
 1 Steph. Com. 666. A request addressed to 
 a peer, peeress, or lord of parliament, against 
 whom a' bill has been filed, desiring the de- 
 fendant to appear and answer to the bill. It 
 is issued by the lord chancellor, on petition, 
 after the filing of the bill ; and a neglect to 
 attend to this places the defendant, m rela- 
 tion to such suit, on the same ground as other 
 defendants who are not peers, and a subpoena 
 may then issue; 2 Madd. Ch. Pr. 196; 
 Coop. Eq. PI. 16 ; 1 Dan. Ch. Pr. 366-869. 
 
 LETTER OF RECALL. A written 
 document addressed by the executive of one 
 government to the executive of another, in- 
 forming the latter that a minister sent by the 
 former to him has been recalled. 
 
 LETTER OP RECOMMENDATION. 
 In Commercial Law. An instrument given 
 by one person to another, addressed to a third, 
 in which the bearer is represented as worthy 
 
 of credit. 1 Bell, Com. 5th ed. 871 ; 8 Term, 
 61 ; 7 Cra. 69 ; Fell, Guar. c. 8 ; 6 Johns. 
 181; 13 id. 224; 1 Day, Conn. 22. See 
 Recommendation. 
 
 LETTER OF RECREDENTIALS. 
 A document delivered to a minister by the 
 secretary of state of the government to which 
 he was accredited. It is addressed to the ex- 
 ecutive of the minister's country. This is in 
 reply to the letter of recall. 
 
 LETTERS OP ABSOLUTION. Let- 
 ters whereby, in former times, an abbot re- 
 leased a monk ab omni subjectione et obedi- 
 enlia, etc., and enabled him to enter some 
 other religious order. Jacob. 
 
 LETTERS OP ADMINISTRATION. 
 
 An instrument in writing, granted by the 
 judge or ofiicer having jurisdiction and power 
 o^ granting such letters, thereby giving the 
 administrator (naming him) "full power to 
 administer the goods, chattels, rights, and 
 credits, which were of the said deceased," in 
 the county or district in which the said judge 
 or ofiicer has jurisdiction ; as also to ask, col- 
 lect, levy, recover, and receive the credits 
 whatsoever of the said deceased, which at the 
 time of his death were owing, or did in any 
 way belong, to him, and to pay the debts in 
 which the said deceased stood obliged, so far 
 forth as the said goods and chattels, rights and 
 credits, will extend, according to the rate and 
 order of law." See Letters Testament- 
 ary. 
 
 LETTERS OP CORRESPONDENCE. 
 In Scotch Law. Letters are admissible in 
 evidence against the panel, i. e., the prisoner 
 at the bar, in criminal trials. A letter writ- 
 ten by the panel is evidence against him ; not 
 so one from a third party found in his posses- 
 sion. Bell, Diet. 
 
 LETTERS OP FIRE AND SWORD. 
 
 See Fire and Swoed. 
 
 LETTERS OP HORNING. See 
 
 Horning. 
 
 LETTERS OF SAFE CONDUCT. See 
 
 Safe Conduct. 
 
 LETTERS CLOSE. In English Law. 
 
 Close letters are grants of the king, and, be- 
 ing of private concern, they are thus distin- 
 guished from letters patent. See Close 
 Rolls. 
 
 LETTERS AD COLLIGENDUM 
 BONA DEPUNCTI. In Practice. In 
 
 default of the representatives and creditors 
 to administer to the estate of an intestate, the 
 offacer entitled to grant letters of administra- 
 tion may grant, to such person as he approves, 
 letters to collect the goods of the deceased, 
 which neither make him executor nor admin- 
 istrator; his only business being to collect the 
 l°la Com *^™ '° ^'^ safe-custody; 2 
 
 LETTERS PATENT. The name of an 
 ins rument granted by the government to con- 
 vej a right to the patentee : as, a patent for 
 
LETTERS OF REQUEST 
 
 71 
 
 LETTERS TESTAMENTARY 
 
 a tract of land : or to secure to him a right 
 ■which he already possesses, as a patent for a 
 new invention or discovery. Letters patent 
 are matter of record. They are so called be- 
 cause they are not sealed up, but are granted 
 open. See Patent. 
 
 LETTERS OF REQUEST. In Eng- 
 lish Ecclesiastical liavr. An instrument 
 by which a judge of an inferior court waives 
 or remits his own jurisdiction in favor of a 
 court of appeal immediately superior to it. 
 
 Letters of request, in general, lie only 
 where an appeal would lie, and lie only to the 
 next immediate court of appeal, waiving 
 merely the primary jurisdiction to the proper 
 appellate court, except letters of request from 
 the most inferior ecclesiastical court, which 
 may be direct to the court of arches, although 
 one or two courts of appeal may by this be 
 ousted of their jurisdiction as courts of ap 
 peal ; 2 Add. Ecel. 406. The effect of let 
 ters of request is to give jurisdiction to the 
 appellate court in the first instance. See a 
 form of letters of request in 2 Chitty, Pr. 498, 
 note h ; 3 Steph. Com. 306. The same title 
 was also given to letters formerly granted by 
 the Lord Privy Seal preparatory to granting 
 letters of marque. 
 
 LETTERS ROGATORY. An instru- 
 ment sent in the name and by the authority 
 of a judge or court to another, requesting the 
 latter to cause to be examined, upon inter- 
 rogatories filed in a cause depending before 
 the former, a witness who is within the juris- 
 diction of the judge or court to whom such 
 letters are addressed. 
 
 They are sometimes denominated sub mur- 
 tucB vicissitudinis, from a clause which they 
 generally contain^ Where the government 
 of a foreign country, in which witnesses pro- 
 posed to be examined reside, refuse to allow 
 commissioners to administer oaths to such 
 witnesses, or to allow the commission to be 
 executed unless it is done by some magistrate 
 or judicial officer there, according to the laws 
 of that country, letters rogatory must issue. 
 Commissioners are forbidden to administer 
 oaths in the island of St. Croix ; 6 Wend. 
 476; in Cuba; 1 Pet. C. C. 236; 8 Paige, 
 Ch. 446 ; and in Sweden ; 2 Ves. Sen. 236. 
 
 These letters are directed to any judge or 
 tribunal having jurisdiction of civil causes in 
 the foreign country, recite the pendency of 
 the suit in court, and state that there are 
 material witnesses residing there, without 
 whose testimony justice cannot be done be- 
 tween the parties, and then request the said 
 judge or tribunal to cause the witnesses to 
 come before them and answer to the inter- 
 rogatories annexed to the letters rogatory, to 
 cause their depositions to be committed to 
 writing and returned with the letters rogatory ; 
 1 Greenl. Ev. § 320. In letters rogatory 
 there is always an offer, on the part of the 
 court whence they issued, to render a mutual 
 service to the court to which they may be 
 directed, whenever required. The practice 
 
 of such letters is derived from the civil law, 
 by which these letters are sometimes called 
 letters requisitory. A special application must 
 be made to court to obtain an order for letters 
 rogatory. 
 
 Though formerly used in England in the 
 courts of common law, iJloUe, Abr. 530, pi. 
 13, they have been siqRrseded by commis- 
 sions of dedimus potestatem, which are con- 
 sidered to be but a feeble substitute. Dunl. 
 Adm. Pr. 223, n. ; Hall, Adm. Pr. 37. 
 The courts of admiralty use these letters ; 
 and they are recognized by the law of na- 
 tions. See Foelix, Droit Intern, liv. 2, t. 4, 
 p. 300 ; Denisart ; Dunlap, Adm. Pr. 221 ; 
 Bened. Adm. § 533 ; 1 Hoffm. Ch. 482. 
 
 In Nelson vs. United States, supra, will be 
 found a copy of letters rogatory, issued to 
 the courts of Havana, according to the form 
 and practice of the civil law, on an occasion 
 when the authorities there had prevented the 
 execution of a cominission, regarding any 
 attempts to take testimony under it as an 
 interference with the rights of the judicial 
 tribunals of that place. 
 
 Under letters rogatory from any foreign court 
 to any circuit court of the United States, a com- 
 missioner designated to take the examination of 
 witnesses in said letters mentioned, shall be em- 
 powered to compel the witnesses to appear and 
 depose In the game manner as in court ; Act of 
 March 1, 18.55, § 2. For further legislation, see 
 Acts of March 3, 1863, c. 95 ; February 27, 1877, 
 c. 69 ; Kev. Stat. 1878, § § 875, 4071-4074 ; Weeks, 
 Depos. §§128,139,130. 
 
 LETTERS TBST.AMENTARY. An 
 
 instrument in writing granted by the judge 
 or officer having jurisdiction of the probate 
 of wills, under his hand and official seal, 
 making known that at a certain date the last 
 will and testament of A B (naming the testa- 
 tor) was duly proved before him ; that the 
 probate and grant of administration was with- 
 in his jurisdiction, and certifying accordingly 
 "that the administration of all and singular 
 the goods, chattels, and credits of the said 
 deceased, and any way concerning his will, 
 was granted " to C D, " the executor named 
 in the said will," "he having been already 
 sworn well and faithfully to administer the 
 same, and to make a true and perfect inven- 
 tory, etc., and to exhibit the same, etc., and 
 also to render a just and true account thereof." 
 In England, the original will is deposited 
 in the registry of the ordinary or metropolitan, 
 and a copy thereof ma^ out under his seal ; 
 which copy and the letters testamentary are 
 usually styled the probate. This practice has 
 been followed in some of the United States ; 
 but where the will needs to be proved in 
 more than one state, the impounding of it 
 leads to much inconvenience. In other states, 
 the original will is returned to the executor, 
 with a certificate that it has been duly proved 
 and recorded, and the letters testamentary are 
 a separate instrument. The letters are usu- 
 ally general ; but may be limited as to the 
 locality within which the executor is to act, 
 
LETTERS TESTAMENTARY 72 LETTERS TESTAMENTARY 
 
 as to the subject-matter over which he is to 
 have control, or otherwise, as the exigencies 
 of the case or , the express du-ections of the 
 testator may require. 
 
 Letters testamentary are granted in case 
 the decedent dies testate ; letters of adminis- 
 tration, in case he dies intestate, or fails to 
 provide an executoi^|see Administration, 
 Executor ; but in regard to all matters com- 
 ing properly under the heads of letters of ad- 
 ministration or letters testamentary, there is 
 little or no difference in the law relating to 
 the two instruments. Letters testamentary 
 and of administration are, according to their 
 terms and extent, conclusive as to personal 
 property while they remain unrevoked. They 
 cannot be questioned in a court of law or of 
 equity, and cannot be impeached, even by 
 evidence of fraud or forgery. Proof that the 
 testator was insane, or that the will was 
 forged, is inadmissible ; 1 Lev. 235 ; 8 Cush. 
 529; 12 Ves. 298; 21 Wall. 503 ; 27 Me. 
 17 ; 49 N. H. 295 ; 75 Penn. 503 ; 16 Mass. 
 433 ; 19 Johns. 386 ; 10 Ala. 977 ; 4 McC. 
 217; 18 Cal. 499; 60 N. Y. 123; 14 Ga. 
 185. But if the nature of his plea raise the 
 issue, the defendant may show that the court 
 granting the supposed letters had no jurisdic- 
 tion and that its action is therefore a nullity ; 
 3 Term, 130 ; or that the seal attached to the 
 supposed probate has been forged, or that the 
 letters have been revoked or that the testator 
 is alive ; 15 S. & R. 42 ; 9 Dana, 41 ; 8 
 Cra. 9 ; 3 Allen, 87 ; 25 Ala. 408. 
 
 Letters testamentary can be revoked only 
 by the court whence they issued, or on ap- 
 ^al; Will. Exec. (6 Am. ed.) 571. 
 
 At common law the executor or administra^ 
 tor has no power over real estate ; nor is the 
 probate even admissible as evidence that the in- 
 strument is a will, or as an execution of a power 
 to charge land ; Will. Exec. (6 Am. ed.) 562. 
 By statute, in some states, the probate is made 
 prima facie or conclusive evidence as to 
 realty ; 17 Mass. 68 ; 23 Conn. 1 ; 10 Wheat. 
 470 ; 3 Penn. 498 ; 8 B. Monr. 340 ; 5 La. 
 388. In some stat« the probate is made after 
 the lapse of a certain time conclusive as to 
 realty; 9 Pet. 180; 75 Penn. 512; 8 Ohio, 
 246 ; 26 Ala. 524 ; 6 Gratt. 564 ; 8 Wright, 
 189. Though the probate court has exclusive 
 jurisdiction of the grant of letters, yet where 
 a legacy has been obtained by fraud, or the 
 probate has been procured by fraud on the 
 next of kin, a court |^ equity would hold the 
 legatee or wrong-doer as bound by a trust 
 for the party injured ; Will. Exec. (6 Am. ed.) 
 552 et seq. 
 
 Letters may be revoked by the court which 
 made the grant, or an appeal to a higher 
 tribunal, reversing the decision by which 
 they were granted. Special or limited ad- 
 ministration will be revoked on the occasion 
 ceasing which called for the grant. An ex- 
 ecutor or administrator will be removed when 
 the letters were obtained improperly ; Will. 
 Exec. (6 Am. ed.) 571. 
 
 Of their effect in a state other than that in 
 which legal proceedings were instituted. 
 
 In view of the rule of the civil law, that 
 personalia sequuntur personam, certain effect 
 has been given by the comity of nations to a 
 foreign probate granted at the place of the 
 domicil of the deceased, in respect to the 
 personal assets in other states. At common 
 law, the lex loci rei sites governs as to real 
 estate, and the foreign probate has no validity ; 
 but as to personalty the law of the domicil 
 governs both as to testacy and intestacy. It 
 IS customary, therefore, on a due exemplifica- 
 tion of the probate granted at the place of 
 domicil, to admit the will to probate, and 
 issue letters testamentary, without requiring 
 original or further proof. 
 
 A foreign probate at the place of domicil 
 has in itself no force or effect beyond the 
 jurisdiction in which it was granted, but on 
 its production fresh probate will be granted 
 thereon in all other jurisdictions where assets 
 are found. This is the general rule, but is 
 liable to be varied by statute, and is so varied 
 in some of the states of the United States. 
 
 Alaiama: Executors and admlnietrators of 
 any person not an inhabitant of Alabama may 
 sue and recover, or receive, property by virtue of 
 letters testamentary or of administration granted 
 in another of the United States, provided that no 
 such letters shall have been issued in Alabama. 
 But before the rendition of the judgment or re- 
 ceipt of the property, they must record with the 
 probate judge of the county said letters, duly 
 authenticated according to. the laws of the United 
 States. Before they are entitled to the money on 
 the judgment, they must also give bond, payable 
 to the judge of the court where the judgment is 
 rendered, for the faithful administration of the 
 money received. A delivery of property or a 
 judgment recovered as aforesaid, is a full pro- 
 tection to the defendant or person delivering 
 such property; Walker's Bev. Code (1867), 
 §§ 3293-2296. 
 
 Arkamas. Administrators and executors ap- 
 pointed in any of the United States may sue in the 
 courts of this state in their representative capacity 
 with as full effect as though they had received 
 letters in this state ; Eev. Stat. (1874), § 4473. 
 
 California. When the estate of the deceased 
 is in more than one county, he having died out • 
 of the state, and not having been a resident 
 thereof at the time of his death, the probate 
 court of that county in which application is first 
 made for letters testamentary or of administra- 
 tion shall have exclusive jurisdiction of the set- 
 tlement of the estate ; Wood, Cal. Dig. art. 2223. 
 
 Gonneeticnt. Letters testamentary issued In 
 another state are not available in this ; 3 Day, 
 303 ; nor are letters of administration : 3 Dav, 
 74 ; and see 3 Root, 463. 
 
 Dakota. The question has not been raised, and 
 is not settled by statute. 
 
 Delaware. Letters testamentary or of adminis- 
 tration granted in any other state and produced 
 under the seal of the oflBce or court granting the 
 same are received as competent authority to the 
 executor or administrator therein named. But 
 JL »^f "i/=eased owed $20 or more to a citizen of 
 the state, he must before recovering judgment 
 the r^^"!'?'''*^,*'^ "y '•™ ^^""^ fis letters in 
 faithfnf »^^f- "f"^ \°^ ^'^^ «««"rity for the 
 Procfedinl?Vn**'°° °l ^^^ *"°"°t recovered. 
 Proceedings m any suit may be stopped, or any 
 
LETTERS TESTAMENTARY 
 
 73 
 
 LETTERS TESTAMENTARY 
 
 one may decline to pay over money or property In 
 his hands until such recording and security are 
 completed. But if judgment be once entered, It 
 shall not be reversed or set aside for failure to 
 comply with the above regulations ; Rev. Code 
 (1874), p. 552, §§46,47,^. 
 
 Florida. Executors and administrators who 
 shall produce probate of wills or letters of ad- 
 ministration duly obtained in any other state, 
 and properly authenticated under the act of con- 
 gress, may sue in the courts as other plaintiffs ; 
 Bush. Dig. 80, § 20 ; 9 Fla. 129. 
 
 Georgia. An executor or administrator may 
 sue by virtue of letters taken out In any state 
 where decedent was domiciled, upon fl^'ng an 
 exemplification of said letters in the court where 
 the action is brought. Any person Interested as 
 heir, legatee, creditor, or otherwi^ 3 may compel 
 him, however, to give security before removing 
 the assets from the state. He may also sell de- 
 cedent's real estate under the same rules as are 
 prescribed for the sale of real estate by resident 
 executors or administrators, and may transfer 
 bank stocks, draw dividends tliereon, and draw 
 checks on decedent's funds, upon first depositing 
 with the bank a certified copy of his appointment 
 and qualification : Code (1873), §§ 2450 : 2614- 
 2618. 
 
 Idaho. No provision is made by statute, and 
 no decsions on the point are reported, 
 
 Illinois. Executors or administrators who 
 have obtained letters testamentary or of admin- 
 istration, may sue in the courts of this state, en- 
 force claims of the deceased, and sell real estate 
 to pay debts, provided that no letters have pre- 
 viously been granted in the state on the same 
 estate, and provided that the plaintiff produces 
 a copy of his letters duly authenticated accord- 
 ing to the act of congress, and provided that he 
 five a bond for costs; Eev. Stat. (1880), 107, 
 § 42, 43. Deeds for real estate made by execu- 
 tors- and administrators who have complied with 
 the above regulations are valid ; id. 272, § 34. 
 
 I?idiana. An executor or administrator ap- 
 pointed in another state may maintain actions 
 and suits, and do all other acts coming within 
 his power, as such, within this state, upon pro- 
 ducing an authenticated copy of such letters and 
 filing them with the clerk of the court in which 
 such suit is to be brought, and upon giving a 
 bond for costs ; 2 Rev. Stat. (1876) 548, § 159. 
 In cases where he is to sell real estate, he must, 
 in addition to the foregoing, file a copy of the 
 bond given by him for the faithful application of 
 . the proceeds in the court of the foreign state. 
 But if there be no such bond, or if the court 
 shall think the surety therein insufiicient, he shall 
 first be required to file a sufficient bond: id. 
 530, §§ 95&96. 
 
 Iowa. If administration of the estate of a 
 deceased non-resident ha,s been granted in ac- 
 cordance with the laws of the state or country 
 where he resided at the time of his death, the 
 person to whom it has been committed may, 
 upon his application, and upon qualifying him- 
 self in the same manner as is required of other 
 executors, be appointed an executor to adminis- 
 ter upon the property of the deceased in this 
 state, unless another executor has previously 
 been appointed in this state. 
 
 The original letters testamentary or of admin- 
 istration, or other authority, conferring his 
 power upon such executor, or an attested copy 
 thereof, together with a copy of the will, if there 
 be one, attested as hereinbefore directed, must be 
 filed in the office of the judge of the proper 
 county court before such appointment can be 
 made; Code (1873), 414, § 2368, 415, § 2369. 
 Kansas. An executor or administrator duly 
 
 appointed in any other state or country may sue 
 or be sued In any court in this state, in his 
 representative capacity, in like manner as a 
 non-resident; Comp. Laws (1879), 436, § 2490. 
 In order to enable him to obtain an order for the 
 sale of real estate, he must, however, file a duly 
 authenticated copy of his letters and the bond 
 given by him for the faithful perfbrmance of his 
 duty In the probate court.- If there be no such 
 bond, or if the court shall think the surety 
 insuiflcient, he must file a sufScient bond before 
 obtaining the order ; id. 427, §§ 2430 and 2431. 
 Kentucky. Executors or administrators ap- 
 pointed by another state may sue in the courts 
 or prosecute claims otherwise on filing in court 
 an authenticated copy of their letters and filing 
 bond with securito to pay from the assets so 
 collected any debtr due to residents in the state 
 by decedent. Said bond must be filed before 
 judgment is entered. Debtors paying over to 
 a foreign executor or administrator who was 
 qualified as aforesaid are protected ; Gen. Stat, 
 (1873), 453, §§ 43, 44, and 45. 
 
 I^tiisiana. Executors or administrators of 
 other states must take out letters of curaiorihip 
 In this state. Exemplifications of wills and 
 testaments are evidence; 4 Griffith, Law Reg. 
 683 ; 8 Mart. La. N. s. 586. There is no statute 
 provision. 
 
 Maine. Letters of administration must be 
 taken from some court of probate in this state. 
 Copies of wills which have been proved In a 
 court of probate in any of the United States, or in 
 acourt of probate of any other state or kingdom, 
 with a copy of the probate thereof, under the seal 
 of the court where such wills have been proved, 
 may be filed and recorded in any probate court 
 In this state, which recording shall be of the 
 same force as the recording and proving the 
 original will; Eev. Stat. (1871), 507 and 508, 
 §§ 12-15. ' 
 
 Maryland. Letters testamentary or of admin- 
 istration granted out of Maryland have no effect 
 In this state, except only such letters issued In 
 the District or Columbia; and letters granted 
 there authorize executors or administrators to 
 claim and sue in this state ; Rev. Code (1878), 
 452, § 113. By the Eev. Code (1878), 452-453, 
 §§ 114-117, when non-resident owners of any 
 public or state of Maryland stocks, or stocks of 
 the city of Baltimore, or any other corporation 
 in this state, die, their executors or administra- 
 tors constituted under the authority of the state, 
 district, territory, or country where the deceased 
 resided at his death, have the same power as to 
 such stocks as if they were appointed by author- 
 ity of the state of Maiyland. But before they 
 can transfer the stocks they must, during three 
 months, give notice In two newspapers, pub- 
 lished In Baltimore, of the death of the testator 
 or Intestate, and of the " amount and description 
 of the stock designed to be transferred." Ad- 
 ministration must be granted in this state. In 
 order to recover a debt due here to a decedent, 
 or any of his property, with the exception above 
 noticed. 
 
 Massachusetts. When any person shall die In- 
 testate in any other state or country, leaving 
 estate to be administered within this state, 
 administration thereof shall be granted by the 
 judge of probate of any county in which there is 
 any estate to be administered ; and the adminis- 
 tration which shall be first lawfully granted 
 shall extend to all the estate of the deceased 
 within the state, and shall exclude the jurisdic- 
 tion of the probate court in every other county : 
 Rev. Stat. c. 117, § 2, 3. See 3 Mass. 514 ; 5 id. 
 67 ; 11 id. 256, 314 ; 1 Pick. 81. 
 Michigan. An executor or administrator hav- 
 
LETTERS TESTAMENTARY 
 
 74 
 
 LETTERS TESTAMENTARY 
 
 ing received letters in another state upon filing 
 a duly authenticated copy thereof in the probate 
 court may be authorized to sell real estate of the 
 deceased for the payment of debts and legacies 
 upon either filing a copy of the bond duly authen- 
 ticated given by him in the court whereby he 
 was appointed, or if there be no such bond, or if 
 the court shall deem the security inadequate, 
 upon entering a bond with surety for the faithful 
 application of the purchase money ; Comp. Laws 
 (1857), 919, §§ 3071-3075. For all other pur- 
 poses it is necessary to take out letters in the 
 state. Where the deceased 1 eaves a will executed 
 according to the laws of this state, and the same 
 is admitted to proof and record where he dies, a 
 certified transcript of the will and probate thereof 
 may be proved and recordej^ in any county in 
 this state where the deceased has property, real 
 or personal, and letters testamentary may issue 
 thereon ; 3 Comp. Laws (1857), 867, § 2845. 
 
 Minnesota. Wills duly proved in any of the 
 United States may be admitted to probate In any 
 county where testator owned land or personalty 
 with like effect as though originally there ad- 
 mitted to probate ; Stat, at Large (1873), 648, 
 § 18. Any executor or administrator appointed 
 In another state may, upon filing a copy of his 
 letters, duly authenticated, in the probate court, 
 obtain leave to sell real estate for payment of 
 debts or legacies, and may either by himself or 
 by attorney execute deeds therefor with like 
 force and effect as if letters had been granted to 
 him in this state ; id. 676, § 195. 
 
 Mississippi. Executors and administrators 
 who have qualified in other states may sue in 
 this state upon filing in the chancery court of 
 the county wherein the suit is brought, a duly 
 authenticated copy of said letters, and also a 
 certificate from the court where the letters were 
 granted that the property or debt sued for is 
 included in the inventory filed in such court by 
 such administrator or executor, and that he is 
 there liable for the subject matter of such suit; 
 Eev. Code (1871), 336, § 1189. 
 
 MissouH. Letters testamentary or of admin- 
 istration granted in another state have no valid- 
 ity in this ; to maintain a suit, the executors or 
 administrators must be appointed under the laws 
 of this state ; 1 Rev. Stat. (1879) , art. vil. 
 
 Montana. The same provisions substantially 
 as in Missouri are in force. 
 
 Nebraska. An executor or administrator duly 
 appointed by any other state or county may sue 
 as any other non-resident ; Gen. Stat. 1873, 343, 
 § 837 ; and, upon filing in the district court of 
 any county a duly authenticated copy of his 
 appointment, may be empowered to sell real 
 estate. He must, however, in such case file a 
 copy of the bond given by him in the foreign 
 court, whereby his letters were granted ; and if 
 there be no such bond, or if the court shall 
 judge the surety therein insufficient, must first 
 give bond with surety for the faithful applica- 
 tion by heirs of the purchase money : Gen. Stat. 
 (1873), 294, 295, §§ 100-104. 
 
 New Hampshire. One who has obtained letters 
 of administration ; Adams, Eep. 193 ; or letters 
 testamentary under the authority of another 
 state, cannot maintain an action in New Hamp- 
 shire by virtue of such letters ; 8 Griffith, Law 
 Keg. 41. 
 
 New Jersey. Executors having letters testa^ 
 mentary, and administrators letters of adminis- 
 tration, granted in another state, cannot sue 
 thereon in New Jersey, but must obtain such 
 letters in that state as the law prescribes. When 
 a will has been admitted to probate In any state 
 or territory of the United States, or foreign na- 
 tion, the surrogate of any county of this state 
 
 is authorized, on application of the executor or 
 any person interested, on filing a duly exempli- 
 fied copy of the will, to appoint a time not less 
 than thirty days and not more than six months 
 distant, of which notice is to be given as he shall 
 direct ; and if, at such time, no sufficient reason 
 be shown to the contrary, to admit such will to 
 probate, and grant letters testamentary or of 
 administration cum testamento annexo, which 
 shall have the same effect as though the original 
 will had been produced and proved under form. 
 If the person to whom such letters testamentary 
 or of administration be granted is not a resident 
 of this state, he is required to give security for 
 the faithful administration of the estate ; Eev. 
 Stat. (1877) , 757, § § 23, 24, and 25. If an exem- 
 plification of such foreign probate be filed in the 
 probate court, it shall have like effect as regards 
 real estate to a will duly admitted to probate 
 within the state ; id. § 26. 
 
 New York. An executor or administrator ap- 
 pointed in another state has no authority to sue 
 in New York ; 1 Johns. Ch. 153 ; 6 id. 353 ; 7 id. 
 45. Whenever an intestate, not being an inhabi- 
 tant of this state, shall die out of the state, 
 leaving assets in several counties, or assets shall 
 after his death come in several counties, the sur- 
 rogate of any connty in which assets shall be 
 shall have power to grant letters of administra- 
 tion on the estate of such intestate ; but the sur- 
 rogate who shall first grant letters of administra- 
 tion on such estate shall be deemed thereby to 
 have acquired sole and exclusive jurisdiction 
 over such estate, and shall be vested with the 
 powers incidental thereto ; 3 Fay's Dig. 830, § 34. 
 When letters testamentary or of administration 
 have been granted by a foreign state, and no such 
 letters granted in this state, the executor or ad- 
 'ministrator so appointed shall on producing a 
 duly certified copy of said letters be entitled to 
 like letters in preference to all others except the 
 public administrator in the city of New York : 
 id. §24. 
 
 North Carolina. It was decided by the court 
 of conference, then the highest tribunal in North 
 Carolina, that letters granted in Georgia were 
 insufficient; Conf. Eep. 68. But the supreme 
 court have since held that letters testamentary 
 granted in South Carolina were sufficient to en- 
 able an executor to sue in North Carolina ; 1 Car. 
 Law, 471. See 1 Hayw. 355 ; 2 Murph. 268. 
 
 Ohio. Executors and administrators appointed 
 under the authority of another state may, by vir- 
 tue of such appointment, sue and be sued in this 
 state, but they may be compelled at any time, by- 
 any legatee, creditor, or distributee in the state, 
 upon an allegation that they are wasting the 
 estate, to give bonds with security for the secur- 
 ing of the claims thereon ; Eev. Stat. (1880), 
 § § 6129-6133. Upon filing a duly authenticated 
 copy of said letters in the probate court, and of 
 the bond originally given by them to secure the 
 faithful application of the money in their hands, 
 or, if there be no such bond, or the surety thereon 
 shall seem to the said probate court insufficient, 
 upon giving new and sufficient securities, they 
 may be authorized to sell decedent's real estate 
 as in the case of executors and administrators 
 taking out letters within the state ; id. § 6168 ; 
 38 Ohio Stat. p. 146 ; Act of March 83, 1840 ; 
 Swan's Coll. 184. 
 
 Oregon. Letters testamentary, or of adminis- 
 tration, shall not be granted to a non-resident ; 
 and when an executor or administrator shall be- 
 ?nrf^^-^°°"™^i''t°'' ^'^^ probate court having 
 jurisdiction of the estate of the testator or inte£ 
 
 wr.°i:-T?/''®'="*°'"°'' administrator shall re- 
 voke his letters. 
 
 Pennsylvania. Executors and administrators 
 
LETTERS TESTAMENTARY 
 
 75 
 
 LEVANT AND COUCHANT 
 
 could originally sue In this state by virtue of 
 foreign letters ; 1 Binn. 63. The rule is now 
 otherwise by the Act of March 15, 1SS2, sec. 6. 
 It is provided that letters testamentary or of ad- 
 ministration, or otherwise purporting to author- 
 ize any person to intermeddle with the estate of 
 a decedent, granted out of the commonwealth, 
 do not in general confer on any such person any 
 of the powers and authorities possessed by an ex- 
 ecutor or administrator under letters granted 
 within the state. But by the act of April 14, 
 1835, sec. 3, this rule is declared not to apply to 
 any public debt or loan of this commonwealth; 
 but such public debt or loan shall pass and be 
 transferable, and the dividends thereon accrued 
 and to accrue be receivable, in lilie manner and 
 in all respects and under the same aud no other 
 regulations, powers, and authorities as were used 
 and practised before the passage of the above- 
 mentioned act. And the act of June 16, 1836, 
 sec. 3, declares that the above act of March 15, 
 1833, sec. 6, shall not apply to shares'of stock in 
 any bank or other incorporated company within 
 this commonwealth, but such shares of stock 
 shall pass and be transferable, and the dividends 
 thereon accrued and to accrue be receivable, in 
 like manner in all respects, and under the same 
 regulations, powers, and authorities, as were 
 used and practised with the loans or public debt 
 of the United States, and were used and prac- 
 tised with the loans or public debt of this 
 commonwealth, before the passage of the said 
 act of March 15, 1833, sec. 6, unless the by- 
 laws, rules, and regulations of any such bank or 
 corporation shall otherwise provide and declare. 
 
 JRhode Island. It does not appear to be settled 
 whether executors and administrators appointed 
 In another state may, by virtue of such appoint- 
 ment, sue in this ; 3 Griffith, Law Reg. 107, 108. 
 A foreign administrator of a person not domi- 
 ciled in the state may, upon filing a copy of his 
 letters in the probate court, filing a bond with 
 surety to account to said court, and giving thirty 
 days' notice of his application, obtain permission 
 from said court to sell the personalty of dece- 
 dent. But no such application is granted if any 
 creditor of the deceased residing in the state 
 shall, pending said application, make objection 
 thereto in writing before said court, accompanied 
 by an affidavit that his debt is justly due : Sandf. 
 Stat. (1872) 382, § 33. 
 
 South Carolina. Executors and administra- 
 tors of other states cannot, as such, sue in South 
 Carolina; they must take out letters In this 
 state ; 4 Griffith, Law Eeg. 848. 
 
 Tennessee. An act of 1809 (Car. & Nich. 
 Comp- 78) was once in force, enabling foreign 
 executors and administrators to sue in the 
 courts, but it has been repealed. 
 
 Texas. "When a will has been admitted to 
 probate in any of the United Btates or the terri- 
 tories thereof or of any country out of the limits 
 of the United States, and the executor or execu- 
 tors named in such will have qualified, and a 
 copy of such will and of the probate thereof has 
 been filed and recorded in any court of this state, 
 . and letters of administration with 
 Buchwillannexedhave been granted to any other 
 person or persons than the executors therein 
 named, upon the application of such executor 
 or executors, or any one of them, such letters 
 shall be revoked, and letters testamentary shall 
 be issued to such applicant;" Paechal's Dig. 
 (1866), art. 1376. 
 
 TXtah. No statutory provisions exist, and no 
 cases are reported upon the point. 
 
 Vermont. If the deceased person shall, at the 
 time of his death, reside in any other state or 
 country, leaving estate to be administered in this 
 
 state, administration thereof shall be granted by 
 the probate court of the district in which there 
 shall be estate to administer ; and the adminis- 
 tration first legally granted shall extend to all 
 the estate of the deceased in this state, aud shall 
 exclude the jurisdiction of the probate court of 
 every other district ; Gen. Stat. (1870) 372, 373, 
 §§ 18,19. 
 
 Virginia. Authenticated copies of wills, proved 
 according to the laws of any of the United 
 States, or of any foreign country, relative to any 
 estate in Virginia, may be offered for probate in 
 the general court ; or, if the estate lie altogether 
 in any one county or corporation, in the circuit, 
 county, or corporation court of such county or 
 corporation ; 3 Griffith, Law Reg. 345. It is un- 
 derstood to be the settled law of Virginia, 
 though there is no statutory provision on the 
 subject, that no probate of a will or grant of 
 administration in another state of the Union, or 
 in a foreign country, and no qualification of an 
 executor or administrator elsewhere than in Vir- 
 ginia, give any such executor or administrator 
 any right to demand the effects or debts of the 
 decedent which may happen to be within the 
 jurisdiction of the state. There must be a regu- 
 lar probate or grant of administration and quali- 
 fication of the executor or administrator in Virgi- 
 nia, according to her laws. And the doctrine 
 prevails in the federal courts held in Vira;inia, as 
 well as in the state courts; 3 Griffith, Law Reg. 348. 
 
 West Virginia. The law is the same as in Vir- 
 ginia. 
 
 Wisconsin. When an executor or administra- 
 tor shall be appointed in any other state, or in 
 any foreign country, on the estate of any person 
 dying out of this state, and no executor or ad- 
 ministrator shall be appointed in this state, the 
 foreign executor may file an authenticated copy of 
 his appointment in the county court of any county 
 in which there may be property of the deceased. 
 
 Upon filing such authenticated copy of his 
 appointment, such foreign executor or adminis- 
 trator may thereafter exercise full power over 
 said estate, sue and be sued, demand and receive 
 personalty and real estate, and obtain license 
 from the court to sell said real estate and make 
 conveyance thereof, in like manner as executors 
 and administrators obtaining letters in the state 
 may do ; Rev. Stat. (1878), § 3267. 
 
 Wyoming. No statutory provisions exist, and 
 no cases are reported upon the point. 
 
 LETTING OUT. In American Law. 
 The act of awarding a contract. 
 
 This term is much used in the United States, 
 and most frequently in relation to contracts to 
 construct railroads, canals, or other mechanical 
 works. When such an undertaking has reached 
 the point of actual construction, a notice is gen- 
 erally given that proposals will be received until 
 a certain period, and thereupon a letting out, or 
 award of portions of the work to be performed 
 according to the proposals, is made. See 35 Ala. 
 N. 8. 55. 
 
 LBVANDiE NAVIS CAUSA (Lat.). 
 In Civil Lavr. For the sake of lightening 
 the ship. See Leg. Rhod. de jactu. Goods 
 thrown overboard with this purpose of light- 
 ening the ship are subjects of a general 
 average. 
 
 LEVANT AND COUCHANT (Lat. 
 Levantes et cubantes). A term applied to 
 cattle that have been so long on the ground 
 of another that they have lain down, and are 
 risen up to feed, until which time they cannot 
 be distrained by the owner of the lands, if the 
 
LEVAKI FACIAS 
 
 76 
 
 LEX FORI 
 
 lands were not sufficiently fenced to keep out 
 cattle. 3 Bla. Com. 8, 9 ; Mozl. & W. 
 
 LEVARI FACIAS (Lat. that you cause 
 to be levied). In Practice. A writ of 
 execution directing the sheriff to cause to be 
 made of the lands and chattels of the judg- 
 ment debtor the sum recovered by the judg- 
 ment. 
 
 Under this writ the sheriff was to sell the goods 
 and collect the rents, issues, and profits of the 
 land in question. It has been generally super- 
 seded by the remedy by elegit, which was given 
 by statute Westm. 2d (13 Edw. I.), c. 18. In 
 case, however, the judgment debtor is a clerk, 
 upon the sheriffs return that he has no lay fee, 
 a writ in the nature of a levari fadai goes to the 
 bishop of the diocese, who thereupon sends a 
 sequestration of the profits of the clerk's bene- 
 fice, directed to the churchwardens, to collect 
 and pay them to the plaintiff till the full sum be 
 raised. Yet the same course is pursued upon a 
 fi. fa. a Burn, Eccl. Law, 329. See 8 Tidd, Pr. 
 lOia; Comyns, Dig. Execution (c. 4); Finch, 
 Law, 471 ; 3 Bla. Com. 471. 
 
 In American Law. A writ used to sell 
 lands mortgaged, after a judgment has been 
 obtained by the mortgagee, or his assignee, 
 against the mortgagor, under a peculiar pro- 
 ceeding authorized by statute. 3 Bouvier, 
 Inst. n. 3396. 
 
 LEVATO VELO (Lat ). An expression 
 used in the Roman law. Code, 11. 4. 5, and 
 applied to the trial of wreck and salvage. 
 Commentators disagree about the origin of 
 the expression ; but all agree that its general 
 meaning is that these causes shall be heard 
 summarily. The most probable solution is 
 that it refers to the place where causes were 
 heard. A sail was spread before the door 
 and officers employed to keep strangers from 
 the tribunal. When these causes were heard, 
 this sail was raised, and suitors came directly 
 to the court, and their causes were heard 
 immediately. As applied to maritime courts, 
 its meaning is that causes should be heard 
 without delay. These causes require de- 
 spatch, and a delay amounts practically to a 
 denial of justice. Emerigon, Des Assurances, 
 c. 26, sect. 3. 
 
 LEVIR. A husband's brother. Vicat, 
 Voc. Jur. 
 
 LEVITICAL DEGREES. Those de- 
 grees of kindred, set forth in the eighteenth 
 chapter of Leviticus, within which persons 
 are prohibited to marry. 
 
 LEVY. To raise. "Webster, Diet. To 
 levy a nuisance, t. e. to raise or do a nuisance, 
 9 Co. 55 ; to levy a fine, t. e. to raise or 
 acknowledge a fine, 2 Bla. Com. 357 ; 1 
 Steph. Com. 236 ; to levy a tax, i. e. to raise 
 or collect a tax ; to levy war, i. e. to raise or 
 begin war, to take arms for attack, 4 Bla. 
 Com. 81 ; to levy an execution, t. e. to raise 
 or levy so much money on execution. Reg. 
 Orig. 298. 
 
 In Practice. A seizure ; the raising of the 
 money for which an execution has been issued. 
 
 In order to make a valid levy on personal 
 
 property, the sheriff must have it within his 
 power and control, or at least within his 
 view ; and if, having it so, he makes a levy 
 upon it, it will be good if followed up after- 
 wards within a reasonable time by his taking 
 possession in such manner as to apprise every- 
 body of the fact of its having been taken 
 into execution. It is not necessary that an 
 inventory should be made, nor that the sheriff 
 should immediately remove the goods or put 
 a person in possession ; 3 Rawle, 405, 406 ; 
 1 Whart. 377; 2 S. & R. 142; 1 Wash. C. 
 C. 29 ; 46 Penn. 294. A levy on a leasehold 
 need not be in view of the premises if suffi- 
 ciently descriptive; 77 Penn. 103. The 
 usual mode of making levy upon real estate 
 is to describe the land which has been seized 
 under the execution, by metes and bounds, as 
 in a deed of conveyance ; 3 Bouvier, Inst. n. 
 3391 ; 1 T. & H. Pr. § 1216. 
 
 It is a general rule that when a sufficient 
 levy has been made the officer cannot make 
 a second ; 12 Johns. 208 ; 8 Cow. 192. 
 
 LEVYING "WAR. In Criminal Law. 
 The assembling of a body of men for the 
 purpose of efieeting by force a treasonable 
 object ; and all who perform any part, how- 
 ever minute, or however remote from the 
 scene^f action, and who are leagued in the 
 general conspiracy, are considered as engaged 
 in levying war, within the meaning of the 
 constitution ; 4 Cra. 473, 474 ; Const, art. 
 3, s. 3. See 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 Cra. 
 471 ; U. S. vs. Fries, Pamphl. 167 ; Hall, Am. 
 L. J. 351; Burr's Trial; 1 East, PL Cr. 62-77; 
 Alison, Cr. Law of Scotl. 606 ; 9 C. & P. 
 129. Where war has been levied, all who 
 aid in its prosecution by performing any part 
 in furtherance of the common object, however 
 minute, or however remote from the scene of 
 action, are guilty of treason ; 2 Abbott, 364. 
 
 LEX (Lat.). 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, it means the Law of the 
 Twelve Tables. 
 
 LEX DOMICILII. See Domicii.. 
 
 LEX FALCIDIA. See Falcidian Law. 
 
 LEX FORI (Lat. the law of the forum). 
 The law of the country, to the tribunal of 
 which appeal is made. 5 CI. & F. 1. 
 
 The forms of remedies, modes of proceed- 
 ing, and execution of judgments are to be 
 regulated solely and exclusively by the laws 
 of the place where the action is instituted; 
 8 CI. & F. 121 ; 11 M. & W. 877 ; 10 B. & 
 C. 903 ; 5 La. 295 ; 2 Rand. S03 ; 6 
 Humphr. 45; 2 Ga. 158; 13 N. H. 321; 
 24 Barb. 68; 4 Zabr. 333; 9 Gill, 1; 17 
 Penn. 91 ; 18 Ala. n. s. 248 ; 4 McLean, 
 540; 11 Ind. 385; 33 Miss. 423; 12. Vt. 
 48 ; 91 U. S. 406 ; 36 Conn. 39 ; 2 Woods, 
 C. C. 244; 26 Ark. 368; 83 111. 365; 27 
 
LEX FORI 
 
 77 
 
 LEX LOCI 
 
 iQwa, 251 ; 42 Miss. 444 ; 26 Ark. 858 ; 
 62 N. Y. 429. See Parties. 
 
 The lex fori is to decide -who are proper 
 parties to a suit; 11 Ind. 485; S3 Miss. 
 423 ; Merlin, E6p. Etrang. § II. ; Westlake, 
 Priv. Int. Law, 409. 
 
 The lex fori governs as to the nature, ex- 
 tent, and character of the remedy ; 17 Conn. 
 ■ 500 ; 37 N. H. 86 ; 2 Pat. & H. 144 ; as, in 
 case of instruments considered sealed where 
 made, but not in the country where sued 
 upon; 5 Johns. 239; 1 B. & P. 360; 3 
 Gill & J. 234; 3 Conn. 523; 27 Iowa, 251 ; 
 91 U. S. 406 ; 9 Mo. 56, 157. 
 
 Arrest and imprisonment may be allowed 
 by the lex fori, though they are not by the 
 lex loci contractus ; 2 Burr. 1089; 5 CI. & 
 F. 1; 1 B. & Ad. 284; 14 Johns. 346; 
 3 Jilas. 88; 10 Wheat. 1. ' 
 
 For the law of interest as affected by the 
 lex fori, see Conflict of Laws. For the 
 law in relation to damages, see Damages. 
 
 The forms of judgment and execution are 
 to be determined by the lex fori; 3 Mass. 88; 
 5 id. 378 ; 4 Conn. 47 ; 14 Pet. 67. 
 
 The lex fori decides as to deprivation of 
 remedy in that jurisdiction. 
 
 Where a debt is discharged by the law of 
 the place of payment, such dischanae will 
 amount to a discharge everywhere ; ^East, 
 124; 12 Wheat. 360; 1 W. Blackst. 258; 
 13 Mass. 1 ; 16 Mart. La. 297 ; 7 Cush. 15 ; 
 1 Woodb. & M. 115 ; 23 Wend. 87 ; 5 Binn. 
 332; 16 Me. 206; 2 Blackf. 866; unless 
 such discharge i| held by courts of another 
 jurisdiction to contravene natural justice ; 18 
 Mass. 6; 1 South. 192. It must be a dis- 
 charge from the debt, and not an exemption 
 from the effect of particular means of enforcing 
 the remedy; 14 Johns. 846; 8B. &C.479; 
 
 I Atk. 255 ; 2 H. Blackst. 553 ; 7 Me. 337 ; 
 
 II Mart. La. 730; 15 Mass. 419; 5 Mas. 387. 
 Under the constitution of the United 
 
 States, the insolvent laws of the various 
 states which purport to discharge the debt 
 are, at most, allowed that effect only as 
 against their own citizens ; as between their 
 own citizens and strangers, where the claims 
 of the latter have not been proved, they only 
 work a destruction in the remedy ; 6 Mas. 
 375; 4 Conn. 47; 14 Pet. 67; 12 Wheat. 
 218,358, 869; 8 Pick, 194; 3 Iowa, 299; 
 at least, if there be no provision in the con- 
 tract requiring performance in the state where 
 the discharge is obtained; 9 Conn. 314; 13 
 Mass. 18, 20; 7 Johns. Ch. 297; 1 Breese, 
 16; 4 Gill & J. 509. In the United States 
 and some state courts, the discharge of a 
 citizen of the state, granting a discharge from 
 an obligation, is not a bar against a citizen of 
 another state, although the contract creating 
 the obligation was to be performed in the 
 state granting the discharge ; 1 Wall. 223 ; 
 8 Keyes, 30 ; 5 Md. 1 ; 25 Conn. 603 ; 48 
 Me. 9 ; 2 Blackf. 394 ; but see 2 Gray, 43. 
 If claims are proved, they may work a dis- 
 charge; 3 Johns. Ch. 435; 26 Wend. 43; 
 3 Pet. 411; 2 How. 202; 5 id. 295, 299; 
 
 8 Mete. 129; 7 Cush. 45; 2 Blackf. 394. 
 See Insolvency. 
 
 Statutes of limitation affect the remedy 
 only ; and hence the lex fori will be the 
 governing law ; 6 Dow, P. C. 116 ; 5 CI. & F. 
 1-16; 8 id. 121, 140; 11 Pick. 36; 7 Ind. 
 91 ; 2 Paine, 487 ; 36 Me. 362 ; 83 111. 865 ; 
 68 N. Y. 33 ; see 9 B. Monr. 518 ; 16 Ohio, 
 145. But these statutes restrict the remedy 
 for citizens and strangers alike; 10 B. & C. 
 908 ; 2 Bingh. N. c. 202, 216 ; 5 CI. & F. 1 ; 
 
 3 Johns. Ch. 190; 6 Wend, 475; 9 Mart. 
 La. 526. For the effect of a discharge by 
 statutes of limitation, where they are so 
 drawn as to effect a discharge, in a foreign 
 state, see Story, Confl. Laws, § 582; 11 
 Wheat. 361; 2 Bingh. N. c. 202; 6 Rob. 
 La. 15 ; 8 Hen. & M. 67. The restriction 
 applies to a suit on a foreign judgment; 5 CI. 
 & F. 1-21 ; 13 Pet. 312 ; 2 B. & Ad. 413 ; 
 
 4 Cow. 528, n. 10 ; 1 Gall. 371 ; 9 How. 407. 
 
 The right of set-off is to be determined by 
 the lex fori; 2 N. H. 296 ; 6 B. Monr. 301 ; 
 83 111. 365 ; 8 Johns. 263 ; see 13 N. H. 126. 
 Liens, implied hypothecations, and priorities 
 of claim generaUy, are matters of remedy ; 
 12 La. An. 289. But only, it would seem, 
 where the property affected is within the 
 jurisdiction of the courts of the forum; 
 Wharton, Confl. L. §§ 317-824; 5 Cra. 289. 
 See L. R,. 3 Ch. Ap. 484. A prescriptive 
 title to personal property acquired in a former 
 domicil will be respected by the lex fori ; 1 7 
 Ves. 88 ; 3 Hen. & M. 57 ; 5 Cra. 358 ; 11 
 Wheat. 361 ; 1 Coldw. 43 ; 5 B. Monr. 621 ; 
 16 Hun, 80t 
 
 Questions of the admissibility and effect of 
 evidence are to be determined by the lex fori; 
 1'2 La. An. 410; 12 Barb. 631 ; 7 Ohio St. 
 134 ; 2 Bradf. Surr. 839. See Evidence. 
 
 The lex loci is presumed to be that of the 
 forum till the contrary is shown ; 4 Iowa, 
 464; 40 Me. 247 ; 6 N. Y. 447; 13 Md. 
 892; 12 La. An. 673 ; 9 Gill, 1 ; 70 Penn. 
 252; and also the iea; ret si«(E ; IH. &J.687. 
 See Foreign Laws ; Authentication. 
 
 LEX LOCI (Lat.). The law of the 
 place. This may be either lex loci contractus 
 aut actus (the law of the place of making the 
 contract or of the thing done) ; lex loci rei 
 sitae (the law of the place where the thing is 
 situated) ; lex loci domicilii (the law of the 
 place of domicil) . 
 
 In general, however, lex loci is only used 
 for lex loci contractus aut actus. 
 
 Contracts. It is a general principle ap- 
 plying to contracts made, rights acquired, or 
 acts done relative to personal property, that 
 the law of the place of making the contract, 
 or doing the act, is to govern it and determine 
 its validity or invalidity, as well as the rights 
 of parties under it in all matters touching the 
 modes of execution and authentication of the 
 form or instrument of contract ; and also in 
 relation to the use and meaning of the lan- 
 guage in which it is expressed, the construc- 
 tion and interpretation of it, the legal duties 
 and obligations imposed by it, and the legal 
 
LEX LOCI 
 
 78 
 
 LEX LOCI 
 
 rights and immunities accquired nnder it ; 1 
 Bingh. N. c. 151, 159; 8 CI. & P. 121; 1 
 Pet. 317; 2 N. H. 42; 13 id. 321; 6 Vt. 
 102 ; 2 Mass. 88, 89 ; 7 Cush. 30 ; 3 Conn. 
 253, 472; 14 id. 583; 22 Barb. 118; 17 
 Penn. 91; 2H. &J. 193; 3 Dev. 161 ; 8 
 Mart. La. 95 ; 4 Ohio St. 241 ; 14 B. Monr. 
 55fi ; 19 Mo. 84; 4 Fla. 404; 23 Miss. 42; 
 12La. An. 607; 3 Stor. 465 ; Ware, 402 ; 
 91 U. S. 406 ; 24 N. J. L. 319 ; 36 Conn. 
 39; 2 Woods, C. C. 244; 65 Barb. 265; 
 2 Kent, 39. As to the rule permitting an 
 election of the law under which certain con- 
 tracts may be governed, see Whart. Confl. 
 L. § 678 et seq. 
 
 This principle, though general, does not, 
 however, apply where the parties at the time 
 of entering into the contract had the law of 
 anotlier country in view, or where the lex loci 
 is in itself unjust, contra honos mores (against 
 good morals), or contrary to the public law 
 of the state, as regarding the interests of re- 
 ligion or morality, or the general well-being 
 of society ; Ferg. Marr. & D. 385 ; 2 Burr. 
 1077; 9 N. H. 271; 6 Pet. 172; 1 How. 
 169; 17 Johns. 511; 13 Mass. 23; 5 CI. & 
 P. 11, 13 ; 8 id. 121 ; 6 Whart. 331 ; 2Metc. 
 Mass. 8 ; 1 B. Monr. 32 ; 6 Ired. 690 ; 2 
 Kent, 458 ; Story, Confl. Laws, § 280 ; or 
 the rights of citizens of the former ; 1 2 Barb. 
 631 ; 13 Mass. 6. And where the place of 
 performance is different from the locus con- 
 tractus, it is presumed the parties had the law 
 of the former in mind. 
 
 The validity or invalidity of a contract as 
 affected by the lex loci may depend upon the 
 capacity of the parties or the legality of the 
 act to be done. 
 
 The capacity of the parties as affected by 
 questions of minority or majority, incapaci- 
 ties incident to coverture, guardianship, eman- 
 cipation, and other personal qualities or disa- 
 bilities, is to be decided by the law of the 
 place of making the contract; Story, Confl. 
 Laws, § 103 ; 1 Grant, Cas. 51. 
 
 The question of disability to make a con- 
 tract on account of infancy is to be decided 
 by the lex loci; 3 Esp. 163, 597; 17 Mart. 
 La. 597; 8 Johns. 189; 1 Grant, Cas. 51; 2 
 Kent, 233. So, also, as to contracts made by 
 married women ; Al. 72 ; 8 Johns. 189 ; 13 
 La. 177; 5 East, 31. 
 
 Personal disqualifications not arising from 
 the law of nature, but from positive law, and 
 especially such as are penal, are strictly terri- 
 torial, and are not to hp enforced in any 
 country other than that Where they originate; 
 Story, Confl. Laws, SS 91, 92, 104, 620-625; 
 2 Kent, 459. See Whart. Confl. L. § 101 et 
 seq.; 67 Barb. 9. 
 
 Natural disabilities, such as insanity, im- 
 becility, etc., are everywhere recognized, so 
 that the question whether they are controlled 
 by the lex loci or lex domicilii seems to be 
 theoretic rather than practical. On principle, 
 there seems to be no good reason why they 
 should come under a difi'erent rule from the 
 positive disabilities. 
 
 The legality or illegality of the contract 
 will be determined by the lex loci, unless it 
 affects injuriously the public morals or rights, 
 contravenes the policy or violates a public law 
 of the country where a remedy is sought ; 2 
 Kent, 458. 
 
 A contract illegal by the law of the place 
 of its making and performance will generally 
 be held so everywhere ; 1 Gall. 3 75 ; 2 Mass. 
 88, 89; 2 N. H. 42; 2 Mas. 459; 13 Pet. 65, 
 78 ; 2 Johns. Cas. 355 ; 1 N. & M'C. 173 ; 2 
 H. & J. 1 93, 221 , 226 ; 1 7 111. 328 ; 16 Tex. 
 344; 2 Burr. 1077.; 2 Kent, 458; Henry, 
 For. Law, 37, 50 ; Story, Confl. Laws, § 243. 
 
 An exception is said to exist in case of 
 contracts made in violation of the revenue 
 laws ; Cas. temp. Hardw. 85 ; 2 C. Rob. 6 ; 
 1 Dougl. 251 ; 1 Cowp. 341 ; 2 Cr. M. & R. 
 311 ; 2 Kent, 468. 
 
 A contract legal by the^ lex loci will be so 
 everywhere; 13 La. An. 117 ; unless — 
 
 It is injurious to public rights or morals ; 
 3 Burr. 1568 ; 2 C. & P. 347 ; 4 B. & Aid. 
 660; 1 B. & P. 340; 6 Mass. 379; 2 H. 8e 
 J. 193; or contravenes the policy ; 2 Bingh. 
 314; 2 Sim. Ch. 194; 16 Johns. 438; 5 
 Harr. Del. 31; 1 Green, Ch. 326; 17 Ga. 
 263. In this connection, it is held generally 
 thatjl^ claims of citizens are to be preferred 
 to t^Pe of foreigners in case of a conflict of 
 rights. Assignments, under the insolvent 
 laws of a foreign state, are usually held in- 
 operative as agamst claims of a citizen of the 
 state, in regard to personal property in the 
 jurisdiction of the lex fori; 1 Green, Ch. 
 326 ; 5 Harr. Del. 31 ; 32 Miss. 246 ; 13 Lai 
 An. 280; 21 Barb. 198 ; but see 12 Md. 54; 
 13 id. 392. Or violates a positive law of the 
 lex fori. The application of the lex loci is a 
 matter of comity ; and that law must, in all 
 cases, yield to the positive law of the place 
 of seeking the remedy; 18 Pick. 193; 1 
 Green, Ch. 326 ; 12 Barb. 631 ; 17 Miss. 
 247. See 10 N. Y. 63. 
 
 The interpretation of contracts is to be gov- 
 erned by the law of the country where the 
 contract was made; Dougl. 201, 207; 2 B. 
 & Ad. 746 ; 1 B. & Ad. 284 ; 10 B. & C. 
 903 ; 2 Hagg. Cons. 60, 61 ; 8 Pet. 361 ; 30 
 Ala. N. s. 253; 4 McLean, 540; 2 Bla. 
 Com. 141 ; Story, Confl. Laws, § 270. 
 
 The lex loci governs as to the formalities 
 and authentication requisite to the valid ex- 
 ecution of contracts; Story, Confl. Laws, 
 §§ 123, 260; 11 La. 14; 2 Hill, N. Y. 227; 
 37 N. H. 86 ; SO Vt. 42. But in proving 
 the existence of, and seeking remedies for, 
 the breach, as well as in all questions relating 
 to the competency of witnesses, course of pro- 
 cedure, etc., the lex fori must govern; 11 
 Ind. 386 ; 9 Gill, 1 ; 17 Penn. 91 ; 18 Ala. 
 N. s. 248 ; 4 McLean, 540 ; 3 id. 546 ; 5 
 How. 83; 6 Huraphr. 75; 17 Conn. 500; 9 
 Mo. 66, 157 ; 4 Gilm. 521 ; 26 Barb. 177 ; 
 Story, Confl. Laws, §§ 667, 634. 
 
 The lex loci governs as to the obligation 
 and construction of contracts ; 1 1 Pick. 32 ; 
 8 Vt. 825; 12 N. H. 520; 12 Wheat. 213; 
 
LEX LOCI 
 
 f9 
 
 LEX REI SIT^ 
 
 2 Keen, 293; 1 B. & P. 138; 12 Wend. 
 439 ; 13 Mart. La. 202 ; 14 B. Monr. 556 ; 
 15 Miss. 798 ; unless, from their tenor, it 
 must be presumed they were entered into 
 •vfith a yiew to the laws of some other state ; 
 13 Mass. 1. This presumption arises where 
 the place of performance is ditierent from the 
 place of making; 31 E. L. & Eq. 433 ; 17 
 Johns. 511 ; 13 Pet. 65; 9 La. An. 185; 13 
 Mass. 23 ; 91 U. S. 406 ; 2 Woods, 244. 
 
 A lien or privilege affecting personal estate, 
 created by the lex loci, will generally be en- 
 forced wherever the property may be found ; 
 
 8 Mart. 95 ; 5 La. 295 ; Story, Confl. Laws, 
 § 402 ; but not necessarily in preference to 
 claims arising under the lex fori, when the 
 property is within the jurisdiction of the court 
 of the forum; 5 Cra. 289, 298; 12 Wheat. 
 361 ; Whart. Confl. L. § 324. 
 
 A discharge from the performance of a con- 
 tract under the lex loci is a discharge every- 
 where ; 5 Mass. 509; 13 id. 1, 7; 7 Cush. 
 15; 4 Wheat. 122, 209; 12 id. 213; 2 Mas. 
 161; 2Blackf. 394; 24 Wend. 43; 2 Kent, 
 394. A distinction is to be taken between 
 discharging a contract and taking away the 
 remedy for a breach ; 3 Mas. 88 ; 5 id. 378 ; 
 4 Conn. 47; 12 Wheat. 347; 8 Pick. 194; 
 
 9 Conn. 314 ; 2 Blackf. 394 ; 9 N. H. 478. 
 As to the effect of a discharge from %» obli- 
 gation by a state insolvent law upon a debt 
 due a citizen of another state, see Lex Fori. 
 
 Statutes of limitations apply to the remedy, 
 but do not discharge the debt ; 9 How. 407 ; 
 20 Pick. 310; 2 Paine, 437; 2 Mas. 751 ; 6 
 N. H. 557; 6 Vt. 127; 8 Port. (Ala.) 84. 
 See Limitations, Statute of. 
 
 A question of some difficulty often arises 
 as to what the locus contractus is, in the case 
 of contracts made partly in one country or 
 state and partly in another, or made in one 
 state or country to be performed in another, 
 or where the contract in question is accessory 
 to a principal contract. 
 
 Where a contract is made partly in one 
 country and partly in another, it is a contract 
 of the place where the assent of the parties 
 first concurs and becomes complete ;■ 2 Par- 
 sons, Contr. 94; 27 N. H. 217, 244; 11 Ired. 
 303 ; 3 Strobh. 27 ; 1 Gray, 336. 
 
 As between the place of making and the 
 place of performance, wherfe a place of per- 
 formance is specified, the law of the place of 
 performance governs as to obligation, inter- 
 pretation, etc. ; 5 East, 124; 3 Caines, 154; 
 1 Gall. 371; 12 Vt. 648; 12 Pet. 456; 
 1 How. 182 ; 8 Paige, Ch. 261 ; 5 McLean, 
 448 ; 27 Vt. 8 ; 14 Ark. 189 ; 7 B. Monr. 
 575 ; 9 Mo. 56, 157 ; 4 Gilm. 521 ; 21 Ga. 
 135; 30 Miss. 59; 7 Ohio, 134; 4 Mich. 
 450 ; 62 N. Y. 151 ; 24 Iowa, 412; 2 Kent, 
 459. ButseellTex. 54. See Whart. Confl. 
 L. § 40. 
 
 Where the contract is to be performed 
 generally, the law of the place of making 
 governs; 2 B. & Aid. 301; 5 CI. &F. 12; 
 1 B. & C. 16 ; 1 Mete. Mass. 82 ; 6 Cra. 221 ; 
 6 Ired. 107; 17 Miss. 220. 
 
 If the contract is to be performed partly in 
 one state and partly in another, it will be 
 affected W the law of both states ; 91 U. S. 
 406 ; 14 B. Monr. 566 ; 22 Barb. 118. But 
 see 2 Woods, 244 ; 24 Iowa, 412. 
 
 In cases of indorsement of negotiable paper, 
 every indorsement is a new contract, and the 
 place of each indorsement is its locus con- 
 tractus; 2 Kent, 460 ; 17 Johns. 511 ; 9 B. 
 &C. 208; 13 Mass. 1; 25 Ala. N. s. 139; 
 19 N. y. 436; 17 Tex. 102. 
 
 The place of payment is the locus contrac- 
 tus, however, as between indorsee and 
 drawer. See 19 N. Y. 436. 
 
 The place of acceptance of a draft is re- 
 garded as the locus contractus; 3 Gill, 430; 
 1 Q. B. 43 ; 4 Pet. Ill ; 8 Mete. 107 ; 4 Dev. 
 124 ; 6 McLean, 622 ; 9 Cush. 46 ; 13 N. Y. 
 290; 18 Conn. 138; 17 Miss. 220. See 
 Promissory Notes ; Bills op Exchange. 
 
 The lex loci is presumed to be the same as 
 that of the forum, unless shown to be other- 
 wise; 46 Me. 247; 13 La. An. 673; 1 Sm. 
 & M. 176; 70 Penn. 252; 13 Md. 392; 9 
 Gill, 1 ; 4 Iowa, 464. But see 1 Iowa, 388. 
 
 Torts. Damages for the commission of a 
 tortious act are to be measured by the law of 
 the place where the act is done ; 1 P. Wms. 
 395 ; 1 Pet. C. C. 225 ; Story, Confl. Laws, 
 §307. 
 
 An action for a tort committed in a foreign 
 country will lie only when it is based upon an 
 act which will be considered as tortious both 
 in the place where committed and in the 
 locus fori ; in such case the law of the place 
 where the tort was committed governs ; L. R, 
 1 P. D. 107 ; id. 6 Q. B. 1 ; id. 2 P. C. 193. 
 See 1 H. & C. 219; Whart. Confl. L. §478; 
 54 Barb. 31. 
 
 Marriage. As to the conflict of laws in 
 relation to marriage, see Marriage. 
 
 As to divorce, see Divorce ; Domicil. 
 
 The law of all acts relating to real property 
 is governed by the lex rei sitce. Taking a 
 mortgage as security does not, however, 
 divest the lex loci of its force. See Lex Eei 
 
 SlT^. 
 
 For lex domicilii, see Domicil. 
 
 LEX LONGOBARDORTTM (Lat.). 
 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 (Lat.). That 
 system of laws which, is adopted by all com- 
 mercial nations, and which, therefore, con- 
 stitutes a part of the law of the land. See 
 Law Merchant. 
 
 LEX REI SIT.S! (Lat.). The law of the 
 place of situation of the thing. 
 
 It is the universal rule of the common law 
 that any title or interest in land, or in other 
 real estate, can ojily be acquired or lost agree- 
 ably to the law of the place where the same 
 
LEX REI SIT^ 
 
 80 
 
 LIBEL 
 
 is situate ; 6 Pick. 286 ; 1 Paige, Ch. 220 ; 2 
 Ohio, 124; 1 H. Blackst. 665; 2 Rose, 29; 
 2 Ves. & B. 130 ; 5 B. & C. 438 ; 6 Madd. 
 Ch. 16; 7 Cra. 115; 10 Wheat. 192, 465; 4 
 Cow. N. Y. 510, 527; 1 Gill, 280; 6 Binn. 
 659 ; Story, Coiitt. Laws, §§ 365, 428 ; and 
 the law is the same in this fespect in regard 
 to all methods whatever of transfer, and every 
 restraint upon alienation ; 12 E. L. & Eq. 
 206. 
 
 The lex rei sita governs as to the capacity 
 of the parties to any transfer, whether testa- 
 mentary or inter vioos, as affected by ques- 
 tions of minority or majority; 17 Mart. 669 ; 
 of rights arising from the relation of husband 
 and wife ; Story, Confl. Laws, § 454 ; 9 
 Bligh, 127; 8 Paige, Ch. 261; 2 Md. 297; 
 
 1 Miss. 281 ; 4 Iowa, 381 ; 3 Strobh. 562; 9 
 Bich. Eq. 475 ; parent and child, or guardian 
 and ward; 2 Ves. 8? B. 127; 1 Johns. Ch. 
 153 ; 4 Gill & J. 332 ; 9 Rich. Eq. 311 ; 14 
 B. Monr. 544; 11 Ala. N. s. 343; 18 Miss. 
 629 ; but see 7 Paige, Ch. 236 ; and of the 
 rights and powers of executors and adminis- 
 trators, whether the property be real or per- 
 sonal ; -2 Hamm. 124; 8 CI. & F. 112; 4 
 M. & W. 71, 192 ; 2 Sim. & S. 284; 3 Cra. 
 319 ; 5 Pet. 518 ; 15 id. 1 ; 12 Wheat. 169 ; 
 
 2 N. H. 291 ; 4 Rand. 158 ; 2 Gill & J. 493; 
 5 Me. 261; 5 Pick. 65; 20 Johns. 229; 3 
 Day, 74; 1 Humph. 54; 7 Ind. 211; 10 
 Rich. 393; see Executors; of heirs; 6 
 B. & C. 451, 452; 6 Bligh, 479, n.; 9 Cra. 
 151 ; 9 Wheat. 566, 570 ; 10 id. 192 ; and of 
 devisee or devisor; Story, Confl. Laws, § 
 474; 14 Ves. 337; 9 Cra. 161; 10 Wheat. 
 192; 37 N. H. 114. 
 
 So as to the forms and solemnities of the 
 transfer, the lex rei sites must be complied 
 with, whether it be a transfer by devise; 2 
 Dowl. & C. 349; 2 P. Wms. 291, 293; 14 
 Ves. 537; 7 Cra. 115; 10 Wheat. 192; 4 
 Johns. Ch. 260 ; 2 Ohio, 124 ; 37 N. H. 114 ; 
 5 R. I. 112, 413 ; 2 Jones, No. C. 368 ; see 
 4 McLean, 75 ; or by conveyance inter vivos; 
 9 Bligh, 127, 128; 2 Dowl. & C. 349; 1 
 Pick. 81 ; 1 Paige, Ch. 220 ; 11 Wheat. 465 ; 
 11 Tex. 755; 18 Penn. 170; 12 E. L. & Eq. 
 206. So as to the amount of property or 
 extent of interest which may be acquired, 
 held, or transferred ; 3 Russ. Ch. 328 ; 2 
 Dow. & C. 393 ; and the question of what is 
 real property ; 1 W. Blackst. 234 ; 2 Burr. 
 1079; 6 Paige, Ch. 630; 3 Deac. & C. 704; 
 2 Salk. 666. And, generally, the lex rei sitce 
 governs as to the validity of any such transfer ; 
 4 Sandf. 352; 2S Miss. 42; 11 Mo. 314; 2 
 Bradf. Surr. 339. As to the disposition of 
 the proceeds, see 12 E. L. & Eq. 206. As 
 to the interpretation and construction of wills, 
 see DoMiciL. 
 
 The rules here given do not apply to per- 
 sonal contracts indirfectly affecting real es- 
 tate ; 1 Halst. Ch. 631 ; Story, Confl. Laws, 
 § 351, d. 
 
 A contract for the conveyance of lands 
 valid by the lex fori will be enforced in 
 equity by a decree tra personam for a convey- 
 
 ance valid under the lex rei sitae; 1 Ves. 144 ; 
 2 Paige, Ch. 606 ; Wythe, 135 ; 6 Cra. 148. 
 An executory foreign contract for the con- 
 veyance of lands not repugnant to the lex rei 
 sitce will be enforced in the courts of the lat- 
 ter country by personal process ; 8 Paige, Ch, 
 201 ; 23 E. L. & Eq. 288 ; 4 Bosw. 266. 
 
 LEX TALIONIS (Lat.). 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, etc. 
 
 Amicable retaliation includes those act of 
 retaliation which correspond to the acts of the 
 other nation under similar circumstances. 
 
 Jurists and writers on international law are 
 divided as to the right of one nation punish- 
 ing with death, by way of retaliation, the 
 citizens or subjects of another nation. In the 
 United States no example of such barbarity 
 has ever beeif witnessed ; but prisoners have 
 been kept in close confinement in retaliation 
 for the same conduct towards American pri- 
 soners. See Rutherforth, Inst. b. 2, c. 9; 
 Marten, Law of Nat. b. 8, c. 1, s. 3, note; 1 
 Kent, 93 ; Wheaton, Int. Law, pt. 4, c. 1, 
 
 §1- 
 
 Vindictive retaliation includes those acts 
 which amount to a war. 
 
 LXip TERRTE! (Lat.). The law of the 
 land. See Due Pkocess of Law. 
 
 liEY (Old French ; a corruption of loi). 
 Law. For example, Termes de la Ley, Terms 
 of the Law. In another, and an old tech- 
 nical, sense, ley signifies an oath, or the oath 
 with compurgators ; as, ii tend sa ley aiu 
 pleyntiffe. Britton, c. 27. 
 
 LEY GAGER. Wager of law. An 
 offer to make an oath denying the cause of 
 action of the plaintiff, confirmed by compur- 
 gators (q. «.), which oath used to be allowed 
 in certain cases. When it was accomplished, 
 it was called the "doing of the law," 
 "fesans de ley." Termes de la Leye, Ley; 
 2 B. & C. 638 ; 3 B. & P. 297 ; 3 & 4 Will. 
 IV. c. 42, § 16. 
 
 LE7ES DE ESTILLO. In Spanish 
 Law. Laws of the age. A book of expla- 
 nations of the Fuero Real, to the number of 
 two hundred and fifty-two, formed under the 
 authority of Alonzo X. and his son Sancho, 
 and of Fernando el Emplazado, and pub- 
 lished at the end of the thirteenth century or 
 beginning of the fourteenth, and some of them 
 are inserted in the New Recopilacion. See 1 
 New Recop. p. 364. 
 
 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. 
 
 LIBEL (Lat. liher). In Practice. The 
 plaintifl's written statement of his cause of 
 action and of the relief which he seeks, made 
 and exhibited in a judicial process, with some 
 solemnity of law. 
 
LIBEL 
 
 81 
 
 LIBEL 
 
 A written statement by a plaintiff of his 
 cause of action, and of the relief he seeks to 
 obtain in a suit; Law, Eccl. Law, 17; Ayliffe, 
 Par. 846 ; Shelf. Marr. & U. 506 ; Dunl. 
 Adm. Pract. 111. It performs substantially 
 the same office in the ecclesiastical and admi- 
 ralty courts, as the bill in chancery does in 
 equity proceedings and the declaration in 
 common-law practice. 
 
 The libel should be a narrative, specific, 
 clear, direct, certain, not general nor alterna- 
 tive; 3 Law, Eccl. Law, 147; Dunl. Adm. 
 Pract. 113. It should contain, substantially, 
 the following requisites : (1) the name, de- 
 scription, and addition of the plaintiff, who 
 makes his demand by bringing his action ; (2) 
 the name, description, and addition of the de- 
 fendant ; (3) the name of the judge, with a 
 respectful designation of his office and court ; 
 (4) the thing or relief, genei^l or special, 
 which is demanded in the suit ; (5) the grounds 
 upon which the suit is founded. 
 
 The form of a libel is either simple or ar- 
 ticulate. 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 ; 3 Law, Eccl. Law, 148 ; Hall, Adm. 
 Pr. 123 ; 7 Cra. 394. 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 com- 
 mon law; 4 Mas. 541. 
 
 Although there is no fixed formula for 
 libels, and the courts will receive such an in- 
 strument 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 : 
 
 First, the address to the court : as, To the 
 Honorable William Butler, Judge of the Dis- 
 trict Court of the United States for the 
 Eastern District of Pennsylvania. 
 
 Second, the names and descriptions of 
 the parties. Persons competent to sue at 
 common law may be parties libellants. The 
 same 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 corpora- 
 tions are represented and proceeded against 
 as at common law. 
 
 Third, the averments or allegations setting 
 forth the cause of action. These 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 
 Vol. II.— 6 
 
 directly met by the opposing party by admis* 
 sion, denial, or avoidance : this is the more 
 necessary, because no proof can be given, or 
 decree rendered, not covered by and con- 
 formable to the allegations ; 1 Law, Eccl. 
 Law, 150; Hall,Pr.l26; Dunl. Adm. Pr. 113; 
 7 Cra. 394. But the requirements upon these 
 points are not so strict as in cases of declara- 
 tions at common law ; 7 Cra. 389 ; 9 Wheat. 
 386, 401. In no case is it necessary to assert 
 anything which amounts to matters of defence 
 to the claimant ; 2 Gall. 485. 
 
 Fourth, 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 pro- 
 cess ; 3 Law, Eccl. Law, 149 ; 3 Mas. 503. 
 
 Interrogatories are sometimes annexed to 
 the libel : when this is the case, there is usu- 
 ally a special prayer, that the defendant may 
 be required to answer the libel, and the in- 
 terrogatories annexed and propounded. This, 
 however, is a dangerous practice, because it 
 renders the answers of the defendant evi- 
 dence, which must be disproved by two wit- 
 nesses, or by one witness corroborated by very 
 strong circumstances. 
 
 The libel is the first proceeding in a suit in 
 admiralty in the courts of the United States ; 
 3 Mas. 504. 
 
 No mesne process can issue in the United 
 States admiralty courts until a libel is filed ; 
 Ist Rule in admiralty of the U. 8. supreme 
 court. The twenty-second and twenty-third 
 rules require certain statements to be con- 
 tained in the libel ; and to those, and the 
 forms in 2 Conkling, Adm. Pract., the reader 
 is referred. And see Parsons, Marit. Law ; 
 Dunl. Adm. Pr. ; Hall, Adm. Pr. 
 
 In Torts. That which is written or 
 printed, and published, calculated to injure 
 the character of another by bringing him into 
 ridicule, hatred, or contempt. Parke, J., 15 
 M. & W. 344. 
 
 Every thing, written or printed, which re- 
 flects on the character of another and is pub- 
 lished without lawful justification or excuse, 
 is a libel, whatever the intention may have 
 been; 15 M. & W. 435. 
 
 A malicious defamation, expressed either 
 in printing or writing, and tending either to 
 blacken the memory of one who is dead or 
 the reputation of one who is alive, and expose 
 him to public hatred, contempt, or ridicule. 
 Bac. Abr. tit. Libel; 1 Hawk. PI. Or. b. 1, 
 c. 73, § 1; 4 Mass. 168; 2 Pick. 115; 9 
 Johns. 214; 1 Denio, 347; 9 B. & C. 172; 
 4M. &R. 127; 2 Kent, 13. 
 
 It has been defined, perhaps with more 
 precision, to be a censorious or ridiculous 
 writing, picture, or sign made with a mali- 
 cious or mischievous intent towards govern- 
 ment, magistrates, or individuals. 3 Johns. 
 Cas. 354 ; 9 Johns. 215 ; 5 Binn. 340 ; 68 Me. 
 295. 
 
 There is a great and well-settled distinction 
 between verbal slander and written, printed, 
 
LIBEL 
 
 82 
 
 LIBEL 
 
 or pictured libel ; and this not only in refer- 
 ence to the consequences, as subjecting the 
 party to an indictment, iDut also as to the 
 character of the accusations or imputations 
 essential to sustain a civil action to recover 
 damages. To write and publish maliciously 
 any thing of another which either makes him 
 ridiculous or holds him out as a dishonest man, 
 is held to be actionable, or punishable crimi- 
 nally, when the speaking of the same words 
 would not be so ; 1 Saund. 6th ed. 247 a ; 4 
 Taunt. 355; 6 Binn. 219; Heard, Lib. & S. 
 § 74 ; 6 Cush. 71 ; 19 Johns. 349 ; 6 Vt. 489. 
 
 The reduction of the slanderous matter to 
 writing or printing is the most usual mode of 
 conveying it. The exhibition of a libellous 
 picture is equally criminal ; 2 Campb. 512 ; 5 
 Co. 125 6 ; 2 S. & R. 91. Fixing a gallows 
 at a man's door, burning him in effigy, or ex- 
 hibiting him in any ignominious manner, is a 
 libel ; Hawk. PI. Cr. b. 1, e. 73, s. 2 ; 11 
 East, 226. So a libel may be published by 
 speaking or singing it in the presence of 
 others ; 7 Ad. & E. 233. 
 
 There is, perhaps, no branch of the law 
 which is so difficult to reduce to exact princi- 
 ples, or to compress within a small compass, 
 as the requisites of a libel. 
 
 In the following cases the publications have 
 been held to be actionable. It is a libel to 
 write of a person soliciting relief from a 
 charitable society, that she prefers unworthy 
 claims, which it is hoped the members will 
 reject forever, and that she has squandered 
 away money, already obtained by her from 
 the benevolent, in printing circulars abusive 
 of the secretary of the society; 12 Q. B. 624. 
 It is libellous to publish of the plaintiiF that, 
 although he was aware of the death of a per- 
 son occasioned by his improperly driving a 
 carriage, he had attended a public ball in the 
 evening of the same day ; 1 Chitt. Bail, 480. 
 It is a libel to publish of a Protestant arch- 
 bishop that he endeavors to convert Roman 
 Catholic priests by promises of money and 
 preferment; 5 Bingh. 17. It is a libel to 
 publish a ludicrous story of an individual in 
 a newspaper, if it tend to render him the 
 subject of public ridicule, although he had 
 previously told the same story of himself; 
 6 Bingh. 409. It is a libel to publish of a 
 candidate for congress that he is a "pettifog- 
 ging shyster;" 40 Mich. 241; — or to write 
 and publish of any man that he is "thought 
 no more of than a horse thief and a counter- 
 feiter;" 10 Mo. 648;— or to publish of a 
 member of congress, "He is a fawning syco- 
 phant, a misrepresentative in congress, and a 
 grovelling office seeker;" 9 Johns. 214. See 
 8 Cr. 8; 42 Vt. 252 ; 17 Gratt. 250; 47 Cal. 
 207 ; 105 Mass. 394. 
 
 A declaration which alleges that the de- 
 fendant charged the plaintiff, an attorney, 
 with being guilty of "sharp practice," which 
 is averred to mean disreputable practice, 
 charges a libellous imputation; 4 M. & W. 
 446. 
 
 Any juhlication which has a tendency to 
 
 disturb the public peace, or good order of 
 society, is indictable as a libel. ' ' This crime 
 is committed," says Professor Greenleaf, " by 
 the publication of writings blaspheming the 
 Supreme Being, or turning the doctrines of 
 the Christian religion into contempt and ridi- 
 cule ; or tending, by their immodesty, to cor- 
 rupt the mind, and to destroy the love of 
 decency, morality, and good order ; or wan- 
 tonly to defame or indecorously to calumniate 
 the economy, order, and constitution of things 
 which make up the general system of the law 
 and government of the country ; to degrade 
 the administration of government, or of jus- 
 tice ; or to cause animosities between our own 
 and any foreign government, by personal 
 abuse of its sovereign, its ambassadors, or other 
 public ministers ; and by malicious defama- 
 tions, expressed in printing or writing, or by 
 signs or pictu^s, tending either to blacken the 
 memory of one who is dead, or the reputa- 
 tion of one who is living, and thereby to ex- 
 pose him to public hatred, contempt, and 
 ridicule. This descriptive catalogue embraces 
 all the several species of this offence which 
 are indictable at common law ; all of which, 
 it is believed, are indictable in the United 
 States, either at common law, or by virtue of 
 particular statutes." 3 Greenl. Ev. § 164. 
 See 4 Mass. 163 ; 9 Johns. 214 ; 4 M'Cord, 
 317; 4 Mas. 115; 34 Me. 223; 3 How. 266. 
 
 Libels against the memory of the dead, 
 which have a tendency to create a breach of 
 the peace, by inciting the friends and rela- 
 tives of the deceased to avenge the insult of 
 the family, render their authors liable to in- 
 dictment. The malicious intention of the 
 defendant to injure the family and posterity 
 of the deceased must be expressly averred 
 and clearly proved ; 5 Co. 125 ; 4 Term, 126, 
 129, note ; 6 Binn. 281 ; Heard, Lib. & S. 
 §§ 72, 348. 
 
 If the matter is understood as scandalous, 
 and is calculated to excite ridicule or abhor- 
 rence against the party intended, it is libellous 
 and indictable as such, however it may be ex- 
 pressed; 13 Mete. Mass. 68 ; 9 N. H. 34; 
 7 Conn. 266; 10 S. & R. 173; 32 Me. 630; 
 1 Denio, 41. 
 
 Evidence of publication in order to sustain 
 an indictment upon a libel must be to the 
 same effect as in case of a civil action brought 
 thereon. The publication of the libel in order 
 to warrant either civil action or indictment 
 must be malicious ; evidence of the malice 
 may be either express or implied. Express 
 proof is not necessary ; for where a man pub- 
 lishes a writing which on the face of it is 
 libellous, the law presumes he does so from 
 that malicious intention which constitutes the 
 offence, and it is unnecessary, on the part 
 of the prosecution, to prove any circumstance 
 from which malice may be inferred ; 4 B. & 
 C. 247 ; 6 Dowl. & R. 296 ; 18 Md. 177 ; 3 
 How. 266; 12 Conn. 262; 16 Mich. 447. 
 But m all cases of libels published confiden- 
 tially, and other privileged communications, 
 express malice must be shown or inferred from 
 
LIBEL OF ACCUSATION 
 
 83 
 
 LIBEK 
 
 circumstances, and this is alwavs a question 
 for a jury ; 8 B. & C. 578 ; 3 S'. & M. 116 ; 
 
 4 Tyrw. 583 ; 30 Me. 466 ; 3 Pick. 379 ; 
 
 1 Hawks, 472 ; 87 Penn. 885 ; 8 Metc.Mass. 
 193. But no allegation, however false and 
 malicious, contained in answers to interroga^ 
 toriea in affidavits duly made, or any other 
 proceedings in courts of justice, or petitions 
 to the legislature, are indictable; 4 Co. 14 
 b; 2 Burr. 807; Hawk. PI. Cr. b. 1, c. 73, 
 s. 8; 1 Saund. 131, n. 1 ; 1 Lev. 240; 2 
 Chitty, Cr. L. 869 ; 2 S. & R. 23. It is no 
 defence that the matter published is part of a 
 document printed by order of the house of 
 commons; 9 Ad. & E. 1. See Judicial 
 Pkocebdings ; and generally, 2 Bishop, Cr. 
 Law ; Heard, Lib. & S. 
 
 In civil actions for libel it has always been 
 held competent for the defendant to justify by 
 pleading the truth in evidence ; Heard, Lib. 
 & S. 186; 1 R. L 263; 6 La. An. 254; 
 
 5 Sandf. 54 ; 4 Sneed, 520. 
 
 In prosecutions, however, he may not do 
 so; 11 Mod. 99 ; because, if the publication 
 is malicious, it is equally to the public interest 
 to punish the publisher of it, whether it was 
 true or not. 
 
 The question as to the respective provinces 
 of court and jury in trials of indictments for 
 libel has given rise to one of the most interest- 
 ing of legal controversies. Lord Mansfield, 
 in 5 Burr. 2661, and in 20 How. St. Tr. 
 892, and Mr. Justice BuUer, in the Dean of 
 St. Asaph's case, 21 How. St. Tr. 847-1046, 
 charged the jury that the only questions for 
 them were whether the defendants had printed 
 and published the paper in question, and 
 whether the innuendoes therein were truly 
 intended as avowed in the indictment, and 
 that it was for the court alone to say whether 
 the paper was a libel or not. This was 
 stoutly denied to be the true state of the law, 
 and accordingly an act known as " Fox's 
 Libel Act" was passed in 1792, declaring 
 that the jury may give a general verdict of 
 guilty or not guilty in all such cases upon the 
 whole matter put at issue, and shall not be 
 required to find defendant guilty on mere 
 proof of publication, and of the sense ascribed 
 to the same in the indictment. 
 
 This statute is now generally conceded to be 
 declaratory of the common law. The judge 
 should instruct the jury as to what a libel is, 
 and then leave it to them to say whether the 
 facts necessary to constitute the offence have 
 been proved to their satisfaction ; 63 Penn. 
 253; 1 Minn. 156; 18 Penn. 489; 23 Vt. 14; 
 
 2 Camp. 478; 13 Mete. 120; 29 Me. 323; 
 21 How. St. Tr. 922. See generally Whar- 
 ton, Bishop, Crim. I^aw ; Starkie, Heard, 
 Townsend, Odger, Lib. & SI. 
 
 LIBEL OF ACCUSATION. In Scotch 
 Law. The instrument which contains the 
 charge against a person accused of a crime. 
 Libels are of two kinds, namely, indictments 
 and criminal letters. 
 
 Every libel assumes the form of what is termed, 
 in logic, a syllogism. It is first stated that some 
 
 particular Itind of act is criminal, as that " theft 
 is a crime of a heinous nature, and severely 
 punishable." This proposition is termed the 
 major. It is next stated that the person accused 
 is guilty of the crime so named, "actor, or art 
 and part." This, with the narrative of the man- 
 ner in which, and the time when, the offence 
 was committed, is called the minor proposition 
 of the libel. The concluiion is that, all or part 
 of the facts being proved, or admitted by confes- 
 sion, the panel "ought to be punished with the 
 pains of the law, to deter others from com- 
 mitting the like crime in all time coming." 
 Burton, Man. Pub. L. 300, 301. 
 
 LI6ELLANT. The party who files a 
 libel in an ecclesiastical or admiralty case, 
 corresponding to the plaintiff in actions in 
 the common-law courts. 
 
 LIBIjLLEB. a party against whom a 
 libel has been filed in proceedings in an eccle- 
 siastical court or in admiralty, corresponding 
 to the defendant in a common-law suit. 
 
 LIBELLUS (Lat.). In Civil Law. A 
 
 little book. Libellus supplex, a petition, espe- 
 cially to the emperor; all petitions to whom 
 must be in writing. L. 15, D. in jus voc. 
 Liiellum rescribere, to mark on such petition 
 the answer to it. L. 2, § 2, Dig. de jur. Jisc. 
 Libellum agere, to assist or counsel the empe- 
 ror in regard to such petitions, L. 12, I), de 
 distr. pign. ; and one whose' duty it is to do 
 so is called magister libellorum. There were 
 also promagistri. L. 1, D. de offic. prmf. 
 pract. Libellus accusatorius, an informa- 
 tion and accusation of a crime. L. 17, § 1, 
 & L. 29, § 8, D. ad leg. Jul. de adult. Li- 
 bellus divortii, a writing of divorcement. 
 L. 7, D. de divort. et repud. Libellus rerum, 
 an inventory. Calv. Lex. Libellus pr oratio 
 consvltoria, a message by whicB emperors 
 laid matters before the senate. Calvinus, 
 Lex. ; Suet. Cbbs. 56. 
 
 A writing in which are contained the names 
 of the plaintiff (actor) and defendant (reus), 
 the thing sought, the right relied upon, and 
 name of the tribunal before which the action 
 is brought. Calvinus, Lex. 
 
 Libellus appellatorius, an appeal. Calvinus, 
 Lex.; L. 1, § ult., D. ff. de appellat. 
 
 In English Law (sometimes called libel- 
 lus conventionalism. A bill. Bracton, fol. 
 112. 
 
 LIBELLUS FAMOSUS (Lat.). A 
 libel ; a defamatory writing. L. 15, D. de 
 pcen.; Vocab. Jur. Utr. sub "famosus." It 
 may be without writing : as, by signs, pic- 
 tures, etc. 5 Rep. defamosis libellis. 
 
 LIBER (Lat.). In Civil Law. A book, 
 whatever the material of which it is made ; a 
 principal subdivision of a literary work : thus, 
 the Pandects, or Digest of the Civil Law, 
 is divided into fifty books. L. 52, D. de 
 legat. 
 
 In Civil and Old English Law. Free : 
 e. g. a free (liber) bull. Jacobs. Exempt 
 from service or jurisdiction of another. Law 
 Fr. & I/at. Diet. : e.g. a. free (liber") man, L. 
 3, D. de statu hominum. 
 
LIBER ASSISARUM 
 
 84 
 
 LIBERTY 
 
 LIBER ASSISARUM (Lat.) The book 
 of assigns or pleas of the crown ; being the 
 fifth part of the Year-Books. 
 
 LIBER FEUDORXJM (Lat.). A code 
 of the feudal law, which was compiled by 
 direction of the emperor Frederick Barba- 
 rossa, and published in Milan, in 1170. It 
 was called the Liber Feudorum, and was di- 
 vided into five books, of which the first, 
 second, and some fragments of the others still 
 exist, and are printed at the end of all the 
 modern editions of the Corpus Juris Civilis. 
 Giannone, b. 13, e. 3; Cruise, Dig. prel. 
 diss. c. 1, § 31. 
 
 LIBER HOMO (Lat.). A free man; a 
 freeman lawfully competent to act as juror. 
 Ld. Kaym. 417; Kebl. 563. 
 
 In London, a man can be a liber homo 
 either — 1, by service, as having served his 
 apprenticeship ; or, 2, by birthright, being a 
 son of a liber homo; or, 3, by redemption, 
 J. e. allowance of mayor and aldermen. 8 
 Rep., Case of City of London. There was 
 no intermediate state between villein and 
 liber homo. Fleta, lib. 4, c. 11, § 22. But 
 a liber homo could be vassal of another. 
 Bract, fol. 25. 
 
 In Old European La'w. An allodial pro- 
 prietor, as opposed to a feudatory. Calvinus, 
 Lex, Alode. 
 
 LIBER JUDICIARTTM (Lat.). The 
 book of judgment, or doom-book. The Saxoh 
 Domboc. Conjectured to be a book of statutes 
 of ancient Saxon kings. See Jacob, Domboc ; 
 1 Bla. Com. 64. 
 
 LIBER ET LEGALIS HOMO (Lat.). 
 A free and lawful man. One worthy of being 
 a juryman ; he must neither be infamous nor 
 a bondman. 3 Bla. Com. 340, 362; Bract, 
 fol. 14 6 ; Fleta, 1. 6, e. 25, § 4 ; 1. 4, c. 5, 
 §4. 
 
 LIBERATE (Lat.). In English Prac- 
 tice. A writ which issues on lands, tene- 
 ments, and chattels, being returned under an 
 extent on a statute staple, commanding the 
 sheriff to deliver them to the plaintiff, by the 
 extent and appraisement mentioned in the 
 writ of extent and in the sherifl*s return 
 thereto. See Comyns, Dig. Statute Staple 
 (D6). 
 
 LIBERATION. In CivU Law. The 
 extinguishment of a contract, by which he 
 who was bound becomes free or liberated. 
 Wolff, pr. de la Nat. § 749. Synonymous 
 with payment. Dig. 50. 16. 47. 
 
 , LIBERTI, LIBERTINL In Roman 
 
 Law. The condition of those who, having 
 been slaves, had been made free. 1 Brown, 
 Civ. Law, 99. 
 
 There is some distinction between these words. 
 By libertns was understood the freedman when 
 considered in relation to his patron, who had be- 
 stowed liberty upon him ; and he was called 
 libertinua when considered in relation to the 
 state he occupied in society subsequent to his 
 manumission. Lee. El. Dr. Rom. § 93. 
 
 LIBERTY (Lat. liber, free; lihertas, 
 freedom, liberty)j Freedom from restraint. 
 The faculty of willing, and the power of do- 
 ing what haS' been willed, without influence 
 from without. 
 
 A privilege held by grant or prescription, 
 by which -some men enjoy greater privileges 
 than ordinary subjects. 
 
 The place within which certain privileges 
 or immunities are enjoyed, or jurisdiction is 
 exercised, as the liberties of a city. See 
 Faubourg. 
 
 Civil liberty is the greatest amount of abso- 
 lute liberty which can in the nature of things 
 be equally possessed by every citizen in a 
 state. 
 
 The term is frequently used to denote the 
 amount of absolute liberty which is actually 
 enjoyed by the various citizens under the 
 government and laws of the state as adminis- 
 tered. 1 Bla. Com. 124. 
 
 The fullest political liberty furnishes the 
 best possible guarantee for civil liberty. 
 
 Lieber defines civil liberty as guaranteed 
 protection against interference with the inter- 
 ests and rights held dear and important by 
 large classes of civilized men, or by all the 
 members of a state, together with an effectual 
 share in the making and administration of the 
 laws, as the best apparatus to secure that pro- 
 tection, including Blackstone's divisions of 
 civil and politicafunder this head. 
 
 Natural liberty is the right which nature 
 gives to all mankind of disposing of their 
 persons and property after the manner they 
 judge most consistent with their happiness, on 
 condition of their acting within the limits of 
 the law of nature and so as not to interfere 
 with an equal exercise of the same rights by 
 other men. Burlam. c. 3, § 15 ; 1 Bla. Com. 
 125. It is called by Lieber social liberty, 
 and is defined as the protection or unrestrained 
 action in as high a degree as the same claim 
 of protection of each individual admits of. 
 
 Personal liberty consists in the power of 
 locomotion, of changing situation, of remov- 
 ing one's person to whatever place one's in- 
 clination may direct, without imprisonment 
 or restraint unless by due course of law. 1 
 Bla. Com. 134. 
 
 Political liberty is an effectual share in the 
 making and administration of the laws. Lie^ 
 ber. Civ. Lib. 
 
 Liberty, in its widest sense, means the faculty 
 of willing, and the power of doing what has 
 been willed without influence from without. It 
 means self-determination, unrestrainedness of 
 action. Thus defined, one being only can be 
 absolutely free,— namely, God. So soon as we 
 apply the word liberty to spheres of human ac- 
 tion, the term receives a relative meaning, be- 
 cause the power of man is limited ; he is subject 
 to constant influences from without. If the 
 idea of unrestrainedness of action is applied to 
 the social state of man, it receives a limitation 
 still greater, since the equal claims of unre- 
 stramed action of all necessarily involves the 
 Wea of protection against interference by others. 
 We thus come to the definition, that liberty of 
 social man consists In the protection of unre- 
 
LIBERTY 
 
 85 
 
 LIBERTY 
 
 strained action in as Ugh a degree as the same 
 claim of protection of each individual admits 
 of, or in the most efficient protection of his 
 rights, claims, interests, as man or citizen, or of 
 his humanity, manifested as a social being. 
 (See Eight.) The word liberty, applied to men 
 in their political state, may be viewed with ref- 
 erence to the state as a whole, and in this 
 case means the independence of the state, of 
 other states (see Autonomv) ; or it may have 
 reference to the relation of the citizen to the 
 government, in which case It is called political 
 or civil liberty ; or it may have reference to the 
 status of a man as a political being, contradis- 
 tinguished from him who is not considered master 
 over his own body, will, or labor— the slave. This 
 is called personal liberty, which, a« a matter of 
 course, includes freedom li-om prison. 
 
 Lieber, in his work on Civil Liberty, calls that 
 system which was evolved in England, and forms 
 the basis of liberty in the countries settled by 
 English people, Anglican liberty. The principal 
 guarantees, according to him, are ; — 
 
 1. National Independence. There must be no 
 foreign interference. The country must have 
 the right and power of establishing the govern- 
 ment it thinks best. 
 
 2. Individual liberty, and, as belonging to it, 
 personal liberty, or the great habeas corpus prin- 
 ciple, and the prohibition of general warrants of 
 arrest. The right of bail belongs also to this head. 
 
 3. A well-secured penal trial, of which the 
 most important is trial for high treason. 
 
 I. The freedom of communion, locomotion, 
 and emigration. 
 
 5. Liberty of conscience. The United States 
 constitution and the constitutions of all the 
 states have provisions prohibiting any interfer- 
 ence in matters of religion. 
 
 6. Protection of individual property, which 
 requires unrestrained action in producing and 
 exchanging, the prohibition of unfair monopo- 
 lies, commercial freedom, and the guarantee 
 that no property shall be taken except in the 
 course of law, the principle that taxation shall 
 only be with the consent of the tax-payer, and 
 shall be levied for short periods only, and the 
 exclusion of confiscation. 
 
 7. Supremacy of the law. The law must not, 
 however, violate any superior law or civil princi- 
 ple, nor must it be an ex post facto law. The ex- 
 ecutive must not possess the power of declaring 
 martial law, which is merely a suspension of all 
 law. In extreme cases, parliament in ISlngland 
 and congress in the United States can pass an act 
 suspending the privilege of habeas corpus. 
 
 8. Every officer must be responsible to the 
 person affected for the legality of his act ; and 
 no act must be done for which some one is not 
 responsible. 
 
 9. It has been deemed necessary in the Bill of 
 Eights and the American constitution specially 
 to refer to the quartering of soldiers as a danger- 
 ous weapon in the hands of the executive. 
 
 10. The military forces must be strictly sub- 
 mitted to the law, and the citizen should have 
 the right to bear arms. 
 
 II. The right of petitioning, and the right of 
 meeting and considering public matters, and of 
 organizing into associations for any lawful pur- 
 poses, are important guarantees of civil liberty. 
 
 Tlie following guarantees relate more especially 
 to the government of a free country and the cha- 
 racter of its polity :— 
 
 13. Publicity of public business in all its 
 branches, whether legislative, judicial, written, 
 or oral. 
 
 13. The supremacy of the law, or the protec- 
 tion against the absolutism of one, of several, or 
 
 of the majority, requires other guarantees. It Is 
 necessary that the public funds be under close 
 and efficient popular control ; they should there- 
 fore be chiefly in the hands of the popular branch 
 of the legislature, never of the executive. Ap- 
 propriations should also be for distinct purposes 
 and short times. 
 
 14. It Is farther necessary that the power of 
 making war reside with the people, and not with 
 the executive. A declaration of war in the 
 United States is an act of Congress. 
 
 15. The supremacy of the law requires, also, 
 not only the protection of the minority, but the 
 protection of the majority against the rule of a 
 factious minority or cabal. 
 
 16. The majority, and through it the people, 
 are protected by the principle that the adminis- 
 tration is founded on party principles. 
 
 17. A very important guarantee of liberty Is 
 the division of government Into three distinct 
 functions, — legislative, administrative, and judi- 
 cial. The union of these is absolutism or despot- 
 ism on the one hand, and slavery on the other. 
 
 18. As a general rule, the principle prevails In 
 Anglican liberty that the executive may do what 
 is positively allowed by fundamental or other 
 law, and not all that which is not prohibited. 
 
 19. The supremacy of the law requires that, 
 where enacted constitutions form the fundamen- 
 tal law, there be some authority which can pro- 
 nounce whether the legislature itself has or has 
 not transgressed it. This power must be vested 
 in courts of law. 
 
 20. There is no guarantee of liberty more im- 
 portant and more peculiarly Anglican than the 
 representative government. See Lieber, Civ. Lib. 
 p. 168. 
 
 In connection with this, a very important ques- 
 tion is, whether there should be direct elections 
 by the people, or whether there should^be double 
 elections. The Anglican principle favors simple 
 elections ; and double elections have often been 
 resorted to as the very means of avoiding the ob- 
 ject of a representative government. 
 
 The management of the elections should also be 
 in the hands of the voters, and government espe- 
 cially should not be allowed to interfere. 
 
 Eepresentative bodies must be free. They must 
 be freely chosen, and, when chosen, act under no 
 threat or violence of the executive or any portion 
 of the people. They must be protected as repre- 
 sentative bodies ; and a wise parliamentary law 
 and usage should secure the rights of each mem- 
 ber and the elaboration of the law. 
 
 A peculiar protection is afforded to members of 
 the legislature In England and the United States 
 by their freedom from arrest, except for certain 
 specified crimes. 
 
 Every member must possess the right to pro- 
 pose any measure or resolution. 
 
 Not only must the legislature be the judge of 
 the right each member has to his seat, but the 
 whole internal management belongs to itself. 
 It is Indispensable that it possess the power and 
 privileges to protect its own dignity. • 
 
 The principle of two houses, or the bicameral 
 system, is an equally efficient guarantee of 
 liberty, by excluding impassioned legislation 
 and embodying In the law the collective mind of 
 the legislature. 
 
 21. The Independence of the law, of which the 
 independence of the judiciary forms a part, is 
 oneofthemain stays of civil liberty. It requires 
 "a living common law, a clear division of the 
 judiciary from other powers, the public accusa- 
 torial process, the independence of the judge, 
 the trial by jury, and an independent position of 
 the advocate." See Lieber, Civil Liberty and 
 Self-Govemment, 208-250. 
 
LIBERTY OF THE PRESS 
 
 86 
 
 LIBERUM TENEMENTUM 
 
 22. Another constituent of our liberty is local 
 and institutional self-government. It arises out 
 of a willingness of the people to attend to their 
 own aflairs, and an unwillingness to permit of 
 the interference of the executive and administra- 
 tion with them beyond what it necessarily must 
 do, or which cannot or ought not to be done by 
 self-action. A pervading self-government, in 
 the Anglican sense, is organic ; it consists in 
 organs of combined self-action, in institutions, 
 and in a systematic connection of these institu- 
 tions, it is, therefore, equally opposed to a 
 disintegration of society and to despotism. 
 
 American liberty belongs to the great division 
 of Anglican liberty, and is founded upon the 
 checks, guarantees, arid self-government of the 
 Anglican race. The following features are, how- 
 ever, peculiar to American liberty : republican 
 federalism, strict separation of the state from 
 the church, greater equality and acknowledg- 
 ment of abstract rights in the citizen, and a 
 more popular or democratic cast of the whole 
 polity. With reference to the last two may be 
 added these further characteristics : — 
 
 We have everywhere established voting by 
 ballot. The executive has never possessed the 
 power of dissolving or proroguing the legisla- 
 ture. The list of states has not been closed. 
 We admit foreigners to the rights of citizenship, 
 and we do not believe in inalienable allegiance. 
 
 There is no attainder of blood. We allow no 
 ex post facto laws. American liberty possesses, 
 also, as a characteristic, the enacted constitu- 
 tion, — distinguishing it from the English polity, 
 with its accumulative constitution. Our legis- 
 latures are, therefore, not omnipotent, as the 
 British Parliament theoretically is ; but the laws 
 enacted by them may be declared by the courts 
 to conflict with the constitution. 
 
 The liberty sought for by the French, as a 
 peculiar system, was founded chiefly, in theory, 
 on the idea of equality and the abstract rights of 
 man. (Kousseau's Social Contract.) 
 
 LIBERTY OF THE PRESS. The 
 
 right to print and publish the truth, from 
 good motives and for justifiable ends. 3 
 Johns. Cas. 394. The right freely to publish 
 whatever the citizen may please, and to be 
 protected against any responsibility for so 
 doing, except so far as such publications, from 
 their blasphemy, obscenity, or scandalous 
 character, may be a public offence ; or as by 
 their falsehood and malice they may injuri- 
 ously affect the standing, reputation, or pecu- 
 niary interests of individuals ; Cooley, Const. 
 Lim. c. xii. It is said to consist in this, 
 " that neither courts of justice, nor any judges 
 whatever, are authorized to take notice of 
 writings intended for the press, but are con- 
 fined to those which are actually printed." 
 VeLolme, Const. 254. 
 
 At the common law, the liberty of the press 
 was neither well protected nor well defined, and 
 not until after many struggles was it so far recog- 
 nized in England as to permit the publication of 
 current news without the permission of govern- 
 ment censors. This right is now, however, com- 
 pletely established, and comments on public leg- 
 islation are not actionable so long as made in a 
 fair spirit and justified by the circumstances ; 
 L. E. 4 Q. B. 73 ; May, Const. Hist. c. 7, 9, 10. 
 
 This right is secured by the constitution of the 
 United States ; Amendments, art. 1 ; and a pro- 
 vision of similar import has been embodied in 
 each of the state constitutions ; a constitutional 
 principle is thereby established which forms a 
 
 shield of protection to the free expression of 
 opinion in every part of the United States. The 
 abuse of the right is punished criminally by in- 
 dictment, civilly by action for damages. See 
 Cooper, Libel ; Heard, Lib. & S.; Libel. 
 
 LIBERTY OP SPEECH. The right to 
 speak facts and express opinions. Whart. Diet. 
 
 It is provided by the constitution of the 
 United States that members of congress shall 
 not be called to account for any thing said in 
 debate ; and similar provisions are contained 
 in the constitutions of the several states in 
 relation to the members of their respective 
 legislatures. The 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. See Bacon, Abr. libel; 
 Debate. 
 
 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 mali- 
 ciously to travel out of his case for the pur- 
 pose of slandering another, he would be liable 
 to an action, and amenable to a just, and 
 often more efiicacious, punishment, inflicted 
 by public opinion ; 3 Chitty, 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. 
 
 No action will lie against a witness at the 
 suit of a party aggrieved by his false testi- 
 mony, even though malice be charged; 60 
 N. Y. 309. The remedy against a dishon- 
 est witness is confined to the criminal prose- 
 cution for perjury ; but false accusations, con- 
 tained in aifidavits or other proceedings by 
 which a prosecution is commenced for sup- 
 posed crime, render the party liable to action, 
 if actual malice be averred and proven ; 47 
 Cal. 624; Cooley, Const. Lim. 522. 
 
 LIBERUM MARITAGIUM (Lat.). 
 In Old English La-w. Frank-marriage 
 (q. v.). 2 Bla. Com. 115 ; Littleton, 8 17; 
 Bract, fol. 21. 
 
 LIBERUM SERVITIUM. Free seiv 
 vice. Service of a warlike sort by a feuda- 
 tory tenant ; sometimes called servitium libe- 
 rum armorum. Somner, Gavelk. p. 56; 
 Jacob, Law Diet. ; 4 Co. 9. 
 
 Service not unbecoming the character of a 
 freeman and a soldier to perform : as, to serve 
 under the lord in his wars, to pay a sum of 
 money, and the like. 2 Bla. Com. 60. The 
 tenure of free service does not make a villein 
 a free man, unless homage or manumission 
 precede, any more than a tenure by villein 
 services makes a freeman a villein. Bract, 
 fol. 24. 
 
 LIBERUM TENEMENTUM. In 
 Real Law. Freehold. Frank-tenement. 2 
 Bouv. Inst. n. 1690; 1 Washb. E. P. 46. 
 
LICENCIADO 
 
 87 
 
 LICENSE 
 
 In Pleading. A plea in justification by 
 the defendant in an action of trespass, by 
 ■which he claims that he is the owner of th^ 
 close described in . the declaration, or that it 
 is the freehold of some third person by whose 
 command he entered. 2 Salk. 453 ; 7 Term, 
 355 ; 1 Wms. Saund. 299 6, note. 
 
 It has the effect of compelling the plaintifl' 
 to a new assignment, setting out the abuttals 
 where he has the locus in quo only generally 
 in his declaration; 11 Eas't, 51, 72; 16 id. 
 343 ; 1 B. & C. 489 ; or to set forth tenancy 
 in case he claims as tenant of the defendant, 
 or the person ordering the trespass ; 1 Saund. 
 299 b. It admits possession by the plaintifl', 
 and the fact of the commission of a trespass 
 as charged ; 2M'Cord, 226; see Greenl. Ev. 
 §626. 
 
 IiICENCIADO. In Spanish Law. 
 Lawyer or advocate. By a decree of the 
 Spanish government of 6th November, 1843, 
 it was declared that all persons who have ob- 
 tained diplomas of "Licentiates in Jurispru- 
 dence ' ' from any of the literary universities 
 of Spain are entitled to practise in all the 
 courts of Spain without fir&t obtaining per- 
 mission by the tribunals of justice. 
 
 Their title is furnished them by the minister 
 of the interior, to whom the universities for- 
 ward a list of those whom they think quali- 
 fied. 
 
 .This law does not apply to those already 
 licensed, who may, however, obfain the bene- 
 fit of it, upon surrendering their license and 
 complying with certain other formalties pre- 
 scribed by the law. 
 
 IiICENSE (Lat. Kcere, to permit). 
 
 In Contracts. A permission. A right 
 given by some competent authority to do an 
 act which without such authority would be 
 illegal. 
 
 An authority to do a particular act or series 
 of acts on another's land without possessing 
 any estate therein. 11 Mass. 533; 4 Sandf. 
 Ch. 72 ; 1 Washb. R. P. *398. 
 
 The written evidence of the grant of such 
 right. 
 
 An executed license exists when the licensed 
 act has been done. . 
 
 An executory license exists where the 
 licensed act has not been performed. 
 
 An ejcpress license is one which is granted 
 in direct terms. 
 
 An implied license is one which is presumed 
 to have been given from the acts of the party 
 authorized to give it. 
 
 It Is distinguished from an easement, which im- 
 plies an interest iu the laud to be affected, and a 
 lease, or right to take the profits of land. It may 
 be, however, and often is, coupled with a grant 
 of some interest in the land itself, or right to take 
 the profits ; 1 Washb. R. P. *398. 
 
 A license may be by specialty ; 2 Pars. Contr. 
 38 ; by parol ; 13 M. & W. 838; 4 Maule & S. 
 563 ; 7 Barb. 4 ; 1 Washb. R. P. 148 ; or by im- 
 plication from circumstances, as opening a door 
 in response to a knock ; Hob. 63 ; 2 Greenl. Ev. 
 § 427. 
 
 It may be granted by the owner, or, in 
 
 many cases, by a servant ; Cro. Eliz. 246 ; 2 
 Greenl. Ev. § 427. 
 
 An executory license may be revoked at 
 the pleasure of the grantor ; 1 Washb. R. P. 
 *398. In general, a mere license may be re- 
 voked at the grantor's pleasure ; 11 Mass. 
 433 ; 15 Wend. 380 ; although the licensee 
 has incurred expense ; 10 Conn. 378; 23 id. 
 223; 3 Du. N. Y. 355; 11 Mete. 251; 2 
 Gray, 302; 24 N. H. 364; 13 id. 264; 4 
 Johns. 418; 3 Wise. 117; iDev. &B. 492; 
 13 M. & W. 838; 37 E. L. & Eq. 489; 6 
 B. & Ad. 1. But see 14 S. & R. 267. Not 
 so a license closely coupled with a transfer 
 of title to personal property ; 8 Mete. 34 ; 
 11 Conn. 525 ; 13 M. & W. 856 ; 11 Ad. & 
 E. 34. 
 
 An executed license which destroys, an 
 easement enjoyed by the licenser in the licen- 
 see's land, cannot be revoked ; 9 Mete. 395 ; 
 2 Gray, 302 ; 2 Gill, 221 ; 3 Wise. 124 ; 3 
 Du. N. Y. 255 ; 7 Bingh. 682 ; 3 B. & C. 
 332; 5 id. 221. 
 
 The effect of an executed license, though 
 revoked, is to relieve or excuse the licensee 
 from liability for acts done properly in pursu- 
 ance thereof, and their consequences ; 22 
 Barb. 336; 2 Gray, 302; 10 Conn. 378; 13 
 N. H. 264 ; 7 Taunt. 374 ; 5 B. & C. 221. 
 
 It has been held that a license, to the enjoy- 
 ment of whioh It was necessary to expend money 
 upon the licenser's land, could not be revoked, 
 without reimbursing the licensee for the expendi- 
 tures ; 33 Ala. 600 ; 7 N. H. 237 ; and in Pennsyl- 
 vania and some other states such a license is 
 treated as irrevocable upon the ground of estop- 
 pel ; 33 Penn. 169 ; 59 111. 337 ; 45 Ga. 33 ; but 
 the current of authority is against this doctrine ; 
 13 M. & W. 838 ; 38 Mo. 599 ; 13 Gray, 213. 
 Courts of equity, however, will interfere to re- 
 strain the exercise of a legal right to revoke a 
 license on the ground of preventing fraud, and 
 construe the license as an agreement to give the 
 right, and compel specific performance by deed ; 
 4 C. E. Green, 153 ; 66 N. C. 546 ; 1 Washb. R. P. 
 *400. 
 
 In International Lavr. Permission granted 
 by a belligerent state to its own subjects, or 
 to the subjects of the enemy, to carry on a 
 trade interdicted by war. Wheat. Int. Law, 
 475. 
 
 Licenses operate as a dispensation of the 
 rules of war, so far as its provisions extend. 
 They are stricti juris, but are not to be con- 
 strued with pedantic accuracy. Wheat. Int. 
 Law, 476 ; 1 Kent, 163, n. ; 4 C. Rob. 8. 
 They can be granted only by the sovereign 
 authority, or by those delegated for the pur- 
 pose by special commission ; 1 Dods. 226 ; 
 Stew. Adm. 367. They constitute a ground 
 of capture and confiscation per se by the 
 adverse belligerent party ; Wheat. Int. Law, 
 475. 
 
 In Patent Law. See Patents. 
 
 In Pleading. A plea of justification to an 
 action of trespass, that the defendant was 
 authorized by the owner of the freehold to 
 commit the trespass complained of. 
 
 A license must be specially pleaded to an 
 action of trespass ; 2 Term, 166 ; but may be 
 
LICENTIA CONCORDANDI 
 
 88 
 
 ;lien 
 
 given in evidence in an action on the case ; 
 2 Mod. 6 ; 8 East, S08. 
 
 LICENTIA CONCORDANDI (La,t. 
 leave to agree). One of the formal steps in 
 the levying a fine. When an action is 
 brought for the purpose of levying a fine, 
 the defendant, knowing himself to be in the 
 wrong, is supposed to make overtures of 
 accommodation to the plaintiff, who accepts 
 them, but, having given pledges to prosecute 
 his suit, applies to the court, upon the return 
 of the writ of covenant, for leave to make the 
 matter up : this, which is readily granted, is 
 called the licentia concordandi. 5 Co. 39 ; 
 Cruise, Dig. tit. 35, c. 2, 22. 
 
 LICENTIA LOQUENDI. Imparlance. 
 
 LICENTIA SURGENDL In Old 
 English Latv. Liberty of rising. A liberty 
 or space of time given by the court to a tenant, 
 who is essoined, de malo lecti, in a real action, 
 to arise out of his bed. Also, the writ there- 
 upon. If the demandant can show that the 
 tenant was seen abroad before leave of court, 
 and before being viewed by the knights ap- 
 pointed by the court for that purpose, such 
 tenant shall be taken to be deceitfully 
 essoined, and to have made default. Bract, 
 lib. 5 ; Fleta, lib. 6, c. 10. 
 
 LICENTIA TRANSFRETANDL A 
 
 writ or warrant directed to the keeper of the 
 port of Dover, or other seaport, commanding 
 him to let the person who has this license of 
 the king pass over sea. Reg. Orig. 93. 
 
 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. § 84. 
 
 LICET (Lat.). It is lawful; not forbid- 
 den by law. 
 
 Id omne licitum est, quod non est legihus pro- 
 hibitum, quamobrem, quod, lege permittente,flt, 
 panam non meretur. Licere dicimus quod legU 
 bus, moribus, instiiutisque conceditur. Cic. 
 Philip. IS ; L. 42, D. ff. de ritu nupt. Est ali- 
 quid quod non oporteat ; tametsi licet ; quicquod 
 vero non licet certe non oportet. L. verbum opor- 
 tere, ff. de verb, et rer. sign. 
 
 Although. Calvinus, Lex. An averment 
 that, "although such a thing is done or not 
 done," is not implicative of the doing or not 
 doing, but adirect averment of it. Plowd. 127. 
 
 LICET S.a!PITJS REQUISITUS 
 (although often requested). In Pleading. 
 A formal allegation in a declaration that the 
 defendant has been often requested to perform 
 the acts the non-performance of which is 
 complained of. 
 
 It is usually alleged in the declaration that 
 the defendant, licet scepius requisitus, etc., 
 he did not perform the contract the violation 
 of which is the foundation of the action. 
 This allegation is generally sufficient when a 
 request is not parcel of the contract. Indeed, 
 
 in such cases it is unnecessary even to lay a 
 general request ; for the bringing of the suit 
 IS itself a sufficient request ; 1 Saund. 33, n. 
 2; 2 id. 118, note 3 ; 2 H. Bla. 131; 1 
 Johns. Cas. 99, 319 ; 3 Maule & S. 150. See 
 Demand. 
 
 LICITACION. In Spanish Law. The 
 sale made at public auction by co-proprietors, 
 or co-heirs, of their joint property which is 
 not susceptible of being advantageously di.. 
 vided in kind. 
 
 LIDFORD LAW. See Lynch Law. 
 
 LIEGrE (from liga, a bond, or litis, a man 
 wholly at command of his lord. Blount), 
 In Feudal Law. Bound by a feudal tenure ; 
 bound in allegiance to the lord paramount, 
 who owned no superior. 
 
 The term was applied to the lord, or liege lord, 
 to whom allegiance was due, since he was bound 
 to protection and a just government, and also to 
 the feudatory, liegeman, or subject bound to 
 allegiance, for he was bound to tribute and due 
 subjection. 34 & 35 Hen. VIII. So lieges are 
 the king's subjects. Stat. 8 Hen. VI. c. 10 ; 14 
 Hen. VIII. c. 2. So In Scotland. Bell, Diet. 
 But in ancient times private persons, as lords of 
 manors, had their lieges. Jacob, Law Diet. ; 1 
 Bla. Com. 367. 
 
 Liege, or ligius, was used in old records for 
 full, pure, or perfect : e.g. ligia potestas, full and 
 free power of disposal. Paroch. Antiq. 280. 
 (Probably in this sense derived from legitima.) 
 So in Scotland. See Liege Potjstie. 
 
 LIEGE POUSTIE (Legitima Potestas). 
 In Scotch Law. That state of health 
 which gives a person full power to dispose of, 
 mortis causfi, or otherwise, his heritable pro- 
 perty. Bell, Diet. 
 
 A deed executed at time of such state of 
 health, as opposed to a death-bed conveyance. 
 Id. A person is said to be in such state of 
 health (in liege poustie, or in legitima potes- 
 tati) when he is in his ordinary health and 
 capacity, and not a minor, nor cognosced as 
 an idiot or madman, nor under interdiction. 
 1 Bell, Com. 85 ; 6 CI. & F. 540. 
 
 LIEN. A hold or claim which one person 
 has upon the property of another as a security 
 for some debt or charge. 
 
 In every case in which property, either real or 
 personal, is charged with the payment of a debt 
 or duty, every such charge may be denominated 
 a lien on the property. Whittaker, Liens, p. 1. 
 It differs from an estate in or title to the pro- 
 perty, as it may be discharged at any time by 
 payment of the sum for which the lien attaches. 
 It differs from a mortgage in the fact that a 
 mortgage is made and the property delivered, or 
 otherwise, for the express purpose of security ; 
 while the lien attaches as incidental to the main 
 purpose of the bailment, or, as in case of the 
 hen of a judgment, by mere act of the law, 
 without any act of the party. In this general 
 sense the word is commonly used by English and 
 American law writers to include those preferred 
 or privileged claims given by statute or by ad^ 
 niiralty law, and which seem to have been 
 adopted from the civil law, as well as the secur- 
 ity existing at common law, to which the term 
 more exactly applies. In its more limited as 
 well as commoner sense, the word lien indicates 
 a mere right to hold the property of another as 
 
LIEN 
 
 89 
 
 LIEN 
 
 security ; or it is the right which one person pos- 
 sesses, in certain cases, of detaining property 
 placed in bis possession belonging to another, 
 until some demand which the former has he sat- 
 isfied. 2 East, 235. A qualified right which, in 
 certain cases, may be exercised over the property 
 of another. 6 East, 25, n. A lien is a right to 
 hold. 2 Camp. 579. A lien in regard to per- 
 sonal property is a right to detain the property 
 till seme claim or charge is satisfied. Mete. Yelv. 
 67, n. e. The right of retaining or continuing 
 possession till the price is paid. 1 Parsons, Mar. 
 Law, la. 
 
 Common Law Liens. 
 
 Which exist by law. 
 By usage. 
 
 By express agreement. 
 Bailments of various kinds. 
 
 Requisites to create. 
 
 Waiver. 
 Civil Law Lien, 
 Equitable Liens. 
 Maritime Liens. 
 
 Of shipper of goods. 
 
 Of owner and charterer. 
 
 Of master. 
 
 Of seamen. 
 
 Of material men. 
 
 Collision. 
 
 Ship's husband. 
 Statutory Liens. 
 Judgment Lien. 
 Mechanic's Lien. 
 
 The Common Law Lien. As distin- 
 guished from the other classes, it consists in 
 a mere right to retain possession until the 
 debt or charge is paid ; 2 Story, 131 ; 24 Me. 
 214 ; 5 Ohio, 88 ; 10 Barb. 626 ; 43 111. 424. 
 
 In the case of a factor an apparent exception 
 exists, as he is allowed a lien on the proceeds of 
 
 foods sold, as well as on the goods themselves. 
 ut this seems to result from the relation of the 
 parties and the purposes of the bailment; to 
 effectuate which, and at the same time give a 
 security to the factor, the law considers the pos- 
 session, or right to possession, of the proceeds, 
 the same thing as the possession of the goods 
 themselves ; 1 Wall. 166 ; 9 Bobw. 660 ; Stonr, 
 Ag. § 111. ■ 
 
 A particular lien is a right to retain the 
 property of another on account of labor em- 
 ployed or money expended on that specific 
 property. 
 
 A general lien is a right to retain the pro- 
 perty of another on account of a general 
 balance due from the owner ; 3 B. & P. 494 : 
 2 Hunt, 634. 
 
 Of course, where a general lien exists, a 
 particular lien is included. 
 
 Particular liens constitute the oldest class 
 of liens, and the one most favored by the 
 common law; 4 Burr. 2221; Dougl. 97; g 
 B. & P. 126. But courts ceased to originate 
 liens at an early period ; 9 East, 426 ; while 
 general liens have been looked upon with 
 jealousy, being considered encroachments 
 upon the common law and founded solely in 
 the usage of and for the benefit of trade ; 3 
 B. & P. 42, 26, 494. Liens either exist by 
 law, arise from usage, or are treated by ex- 
 press agreement. 
 
 Liens which exist by the common law, gen- 
 
 erally arise in cases of bailment. Thus, a 
 particular lien exists whenever goods are de- 
 livered to a handicraftsman of any sort for 
 the execution of the purposes of his trade 
 upon them; lAtk. 228; 3 Maule & S. 167 ; 
 14 Pick. 332; 7 Barb. 113; 8 Iowa, 207; 
 36 Me. 536 ; 2 W. & S. 392 ; 4 C. & P. 152. 
 And so, where a person is, from the nature of 
 his occupation, under a legal obligation to re- 
 ceive and be at trouble or expense about the 
 personal property of another, in every such 
 case he is entitled to a particular lien on it ; 
 1 Esp. 109 ; 1 Ld. Raym. 654 ; 6 Term, 17 ; 3 
 B. & P. 42; S Vt. 245 ; 6 B. & Aid. 350. 
 
 And sometimes a lien arises where there is 
 strictly no bailment. Thus, where a ship or 
 goods at sea come into possession of a party 
 by finding, and he has been at some trouble 
 or expense about them, he is entitled to re- 
 tain the same until reimbursed his expenses. 
 This applies only to the salvors of a ship and 
 cargo preserved from peril at sea; 1 Ld. 
 Raym. 393; 5 Burr. 2732; 8 East, 57; 16 
 Penn. 393; Sprague, 57-272; Daveis, 20; 
 Edw. Adm. 175 ; and, in the case of prop- 
 erty on shore, where a specific reward is 
 offered for the restoration ; 8 Gill, 213 ; 3 
 Mete. Mass. 352 ; 52 Penn. 484 ; 7 Barb. 
 113 ; and does not apply, generally, it is said, 
 to the preservation of things found' upon land; 
 
 2 H. Blackst. 254; 2 W. Blackst. 1107; 7 
 Barb. 113; 4 Watts, 63; 10 Johns. 102; 
 Story, Bailm. § 621, note a. 
 
 Liens which arise by usage are usually 
 general liens, and the usage is said by Whita^ 
 ker to be either the general usage of trade, 
 or the particular usage of the parties ; Whita. 
 ker. Liens, 31 ; 3 B. & P. 119 ; 4 Burr. 
 2222; 1 Atk. 228; Ambl. 252. 
 
 The usage must be so general that the 
 party delivering the goods may be presumed 
 to have known it, and to have made the right 
 of lien a part of the contract ; 4 C. & P. 152; 
 
 3 B. & P. 50. And it is said the lien must 
 be for a general balance arising from transac- 
 tions of a similar character between the par- 
 ties, and that the debt must have accrued 
 in the business of the party claiming the lien ; 
 Whitaker, Liens, 33 ; and see 1 Atk. 223 ; 1 
 W. Blackst. 651; and it seems that more 
 decisivfe proof of general usage is required in 
 those occupations in which the workmen are 
 required to receive their employment when 
 ofiered them, such as carriers; 6 Term, 
 14; 6 East, 519; 7 id. 224. But where a 
 general lien has been once established, the 
 courts will not allow it to be disturbed ; 1 
 Esp. 109 ; 3 id. 31. 
 
 _ In regard to a general lien arising from par- 
 ticular usage between the parties, proof of 
 their having before dealt upon the basis of 
 such a lien will be presumptive evidence that 
 they continue to deal upon the same terms • 
 
 1 Atk. 235 ; 6 Term, 19. If a debtor, who 
 has already pledged property to secure a loan', 
 borrow a further sum, it will be understood 
 that the creditor's lien is for the whole debt ; 
 
 2 Vern. 691. 
 
LIEN 
 
 90 
 
 LIEN 
 
 Liens which arise from express agreement. 
 A general or particular lien may be acquired 
 in any case by the express agreement of the 
 parties; Cro. Car. 271; 6 Term, 14. This 
 generally happens -when goods are placed in 
 the hands of a person for the execution of 
 some particular purpose upon them, with an 
 express contract that they shall be considered 
 as a pledge for the labor or expense which 
 the execution of that purpose may occasion. 
 Or it exists where property is merely pawned 
 or delivered for bare custody to another, for 
 the sole purpose of being a security for a 
 loan made to the owner on the credit of it ; 
 Whitaker, Liens, 27 ; 2 Kent, 637. And if 
 a number of tradesmen, not obliged by law to 
 receive the goods of any one who offers, for 
 the purposes of their trade, agree not to 
 receive goods unless they may be held subject 
 to a general lien for the balance due them, 
 and the bailor knows this, and leaves the 
 goods, the lien attaches. And the same is 
 true, of course, of an individual under similar 
 circumstances. - 
 
 But where the tradesman is obliged to 
 receive employment from any one who offers, 
 a mere notice will not be enough to give this 
 lien with implied assent, but express assent 
 must be shown ; 6 Term, 14 ; 8 B. & P. 42 ; 
 
 5 B. & Aid. 350. 
 
 Among the different classes who have liens 
 by the common law, in the absence of any 
 special agreement, are — 
 
 Innkeepers. They may detain a horse for 
 his keep; 2 Ld. Raym. 866; 8 Mod. 173; 
 
 6 Term, 141 ; 9 Pick. 289, 316, 332; though, 
 perhaps, not if the person leaving him be not 
 a guest; 68 Me. 489; 11 Barb. N. Y. 41; 
 but not sell him ; F. Moore, 876 ; Bacon, 
 Abr. Inns (D) ; 8 Mod. 173; 1 Holt, 383; 
 
 3 Gray, 382 ; Schoul. Bail. 294 ; except by 
 custom of London and Exeter; F. Moore, 
 876 ; and cannot retake the horse or any 
 other goods on which he has a lien, after 
 giving them up; 8 Mod. 173; Hob. 42; 
 Mete. Yelv. 67 ; L. R. 3 Q. B. Biv. 484. 
 These privileges do not extend to mere agis- 
 ters or livery-stable keepers ; 5 M. & W. 350 ; 
 6 0. B. 132; 78 N. C. 96; 7 Gray, 183; 35 
 Me. 153 ; 45 Iowa, 456. They may detain 
 the goods of a traveller, but not of a boarder ; 
 43 Vt. 80 ; 27 Wise. 202 ; L. R. 7 Q. B. 
 711; 36 Iowa, 651; 8 Rich. So. C. 428. 
 But there are statutes in force in many of the 
 United States conferring on boarding-house 
 keepers all the privileges of innkeepers ; 43 
 N. H. 332; 42 Barb. 623; 27 Wise. 406; 
 llOMass. 158. This lien is a particular lien; 9 
 East, 433 ; Cro. Car. 271 ; 2 E. D. Smith, 195. 
 
 Warehousemen have a particular lien ; 18 
 III. 286 ; 84 E. L. & Eq. 116 ; 31 Miss. 261 ; 
 1 Minn. 408; 13 Ark. 4S7. 
 
 Dyers and tailors have a particular lien'; 
 Cro. Car. 271; 9 East, 433; 6 East, 623; 
 
 4 Burr. 2214. 
 
 Common carriers, for transportation of 
 goods ; 2 Ld. Raym. 752 ; 6 East, 519 ; 7 id. 
 
 224 ; 1 Dougl. (Mich.) 1 ; Wright (Ohio), 
 216; 24 Me. 339; 6 Wall. 481; 25 Wise. 
 241; 1 Minn. 801; 51 Ala. 512; 10 Wall. 
 15 ; 104 Mass. 156 ; but not if the goods are 
 taken tortiously from the owner's possession, 
 where the carrier is innocent; 1 Dougl. 
 (Mich.) 1 ; 2 Hall, 561 ; 5 Cush. 137 ; 6 East, 
 519; 6 Whart. 418; 20 E. C. L. 426; nor 
 if the carrier transport them for a mere 
 hire ; 107 Mass. 126. Part of the goods may 
 be detained for the whole freight of goods 
 belonging to the same person ; 6 East, 622. 
 Bailees for hire, generally, for work done 
 by them ; 6 Term, 14 ; 3 Selw. N. P. 1163 ; 
 4 Term, 260; 26 Miss. 182; 4 Wend. 292; 
 40 N. H. 88 ; 86 Penn. 486. A wharfinger; 
 
 7 B. & C. 212; 43 N. Y. 554; 2 Gall. 483. 
 An agister of cattle has no lien ; Cro. Car. 
 
 271 ; 7 Gray, 183 ; 85 Me. 153 ; nor a livery- 
 stable keeper ; 2 Ld. Raym. 866 ; 6 East, 
 509 ; 35 Me. 158. In some of the states, 
 however, statutes have been passed conferring 
 the right of lien in these cases. 
 
 Attorneys and solicitors have a lien upon 
 papers of their clients; 12 Wend. 261; 2 
 Aik. 162; 14 Vt. 485; 11 N. H. 163; 11 
 Miss. 225 ; and also upon judgments obtained 
 by them; 20 Pick. 259 ; 10 Barb. 67; 4 
 Sandf. 661 ; Wright, Ohio, 485 ; 30 Me. 
 152; 15 Vt. 544 ; not in Pennsylvania; 7 
 Penn. St. 376 ; see 52 How. Pr. 54 ; 27 N. 
 H. 324 ; 15 Johns. 405 ; 3 Me. 34. This 
 lien is subject to some restrictions ; Mete. 
 Yelv. 67/; 24 Me. 20; 21 N. H. 339; 22 
 Pick. 210. 
 
 Clerks of courts have a lien on papers for 
 their fees ; 3 Atk. 727 ; 2 P. Wms. 460 ; 2 
 Ves. 111. 
 
 Bankers have a lien on all securities left 
 with them by their employers ; 5 Term, 488 ; 
 1 Esp. 66; 3 Gilm. 233; 1 How. 234; 
 Whit. Liens, 39. 
 
 Factors and brokers have a lien on goods 
 and papers; 3 Term, 119; 1 Johns. Cas. 
 487, n. ; 8 Wheat. 268 ; .28 Vt. 118 ; 34 Me. 
 582 ; on part of the goods for the whole 
 claim; 6 East, 622; 34 Me. 582; but only 
 for such goods as come to them as factors ; 11 
 E. L. &Eq. 528. 
 
 The vendor of goods, for the price so long 
 as he retains possession ; 7 East, 574 ; 1 H. 
 Bla. 363; Hob. 41 ; 2 Bla. Com. 448; 2 
 Swan, 661; 6 McLean, 472; Story, Sales, 
 §282; 8 H. L. Cas. 838; 4 Keyes, 90; 
 Benj. Sales, 8 796. 
 
 Pawnees, from the very nature of their 
 contract ; 15 Mass. 408 ; 2 Vt. 309 ; 9 Wend. 
 345; 8 Mo. 219; 89 Me. 45 ; but only where 
 the pawner has authority to make such pledge; 
 
 8 Atk. 44 ; 2 Camp. 336, n. A pledge, even 
 where the pawnee is innocent, does not bind 
 the owner, unless the pawner has authority 
 to make the pledge ; 1 Vern. 407 ; 2 Stark. 
 21 ; 1 Mas. 440 ; 2 Mass. 898 ; 4 Johns. 103 ; 
 1 Maule & S. 140 ; 17 C. B. 161 ; 20 How. 
 848 ; 98 Mass. 803 ; 57 Ga. 274. See, as to 
 stock, 4. Allen, 272 ; 100 Mass. 382 ; 48 Cal. 
 
LIEN 
 
 91 
 
 LIEN 
 
 99. The pawnee does not have a general 
 lien; 15 Mass. 490; 28 Com. 420 ; 27 La. 
 An. 110; 37 N. Y. 540. 
 
 Requisites as to Creation. In all these 
 cases, to give rise to the lien, there must have 
 been a delivery of the property ; it must have 
 come into the possession of the party claim- 
 ing the lien, or his agent; 3 Term, 119 ; 6 
 East, 25, n. 
 
 A question may arise by whom the delivery 
 is to be made. Where a person, in pursuance 
 of the authority and directions of the owner of 
 property, delivers it to a tradesman for the 
 execution of the purposes of his trade upon 
 it, the tradesman will not have a general lien 
 against the owner for a balance due from the 
 person delivering it, if he knew that the one 
 delivering was not the real owner ; 1 East, 
 835 ; 2 id. 523 ; 2 Campb. 218 ; 2 Atk. 114. 
 Thus, a carrier, who, by the usage of trade, 
 is to be paid by the consignor, has no lien for 
 a general balance against the consignee ; 5 B. 
 & P. 64. Nor can a claim against the con- 
 signee destroy the consignor's right of stop: 
 page in transitu ; 3 B. & P'. 42. But a par- 
 ticular lien may undoubtedly be derived 
 through the acts of agents acting within the 
 scope of their employment; 9 East, 233; 3 
 B. & P. 119 ; 3 Esp. 182. And the same 
 would be true of a general lien against the 
 owner for a balance due from him ; Whit. 
 Liens, 39. 
 
 No lien exists where the party claiming it 
 acquires possession by wrong ; 2 Term, 485 ; 
 or by misrepresentation ; 1 Campb. 1 2 ; or 
 by his unauthorized and voluntary act ; 1 Stra. 
 651 ; 8 Term, 310, 610 ; 2 H. Blackst. 254 ; 
 
 3 W. Blackst. 1117. But see 4 Burr. 2218. 
 No lien exists where the act of the servant 
 
 or agent delivering the property is totally un- 
 authorized, and the pledge of it is tortious 
 against the owner, whether delivered as a 
 pledge or for the execution of the purposes of 
 a trade thereupon ; 5 Ves. Ill ; 6 East, 17 ; 
 
 4 Esp. 1 74 ; 5 Term, 604. A pledge, even 
 ■when the pawnee is innocent, does not bind 
 the owner unless the pawner had authority ; 
 1 Vern. 407 ; 2 Stark. 21 ; 1 Mas. 440 ; 2 
 Mass. 398; 4 Johns. 103. 
 
 A delivery by a debtor for the purpose of 
 preferring a creditor will not be allowed to 
 operate as a delivery sufficient for a lien to 
 attach ; 4 Burr. 2239 ; 3 Ves. 85 ; 2 Campb. 
 679; 11 East, 256. 
 
 Waiver of Leins. Possession is a neces- 
 sary element of common-law liens ; and if 
 the creditor once knowingly parts with that 
 possession after the lien attaches, the lien is 
 gone ; Stra. 556 ; 1 Atk. 254 ; 5 Ohio, 88 ; 
 6 East, 25, n. ; 7 trf. 5 ; 3 Term, 119; 2 
 Edw. Ch. 181 ; 5 Binn. 398 ; 3 Am. L. J. 
 128; 4 N. Y. 497; 4 Denio, 498; 42 Me. 
 50; 11 Cush. 231; 2 Swan, 661; 23 Vt.' 
 217; Benj. Sales, § 799. But there may be 
 a special agreement extending the lien, though 
 not to affect third persons ; 36 Wend. 467. 
 The delivery may be constructive ; Ambl. 
 252 ; and so may possession ; 5 Ga. 163. A 
 
 lien cannot be transferred ; 8 Pick. 73 ; but 
 property subject to a lien may be delivered to ■ 
 a third person, as to the creditor's servant, 
 with notice of the lien, so as to preserve the 
 lien of the original creditor ; 2 East, 529 ; 7 
 id. 5. But it must not be delivered to the 
 owner or his agent ; 2 East, 529 ; 4 Johns. 
 103. But if the property be of a perishable 
 nature, possession may be given to the owner 
 under proper agreements ; 1 Atk. 235 ; 8 
 Term, 199. Generally a delivery of part of 
 the goods sold is not equivalent to a delivery 
 of the whole, so as to destroy the vendor's lien. 
 He may give up part and retain the rest, and 
 then his lien will remain on the part retained 
 for the price of the whole. But this is not so 
 unless the intention to separate the goods de- 
 livered from the rest is manifest ; Benj. Sales, 
 §805. 
 
 Neglect to insist upon a lien, in giving rea- 
 sons For a refusal to deliver property on de- 
 mand, has been held a waiver ; 1 Campb. 
 410, n. ; 7 Ind. 21 ; 13 Ark. 437. 
 
 Where there is a special agreement made, 
 or act done, inconsistent with the existence 
 of the lien, such as an agreement to give 
 credit, or where a distinct security is taken, 
 or the possession of the property is acquired 
 for another distinct purpose, and for that 
 only, or where the property is attached by 
 the creditor, no lien arises ; 16 Ves. 275 ; 4 
 Campb. 146; 2 Marsh. S39; 5 Maule & S. 
 180; Mete. Yelv. 67 e; 8 N. H. 441; 17 
 Pick. 140; 15 Mass. 389; 4 Vt. 649. But 
 such agreement must be clearly inconsistent 
 with the lien ; 1 Dufch. 443 ; 32 Me. 319. 
 
 The only remedy or use of the lien at com- 
 mon law is to allow the creditor to retain 
 possession of the goods ; 33 Me. 438 ; 1 Mas. 
 319. And he may do this against assignees 
 of the debtor ; 1 Burr. 489. 
 
 The Civil Law Lien. The civil law em- 
 braces, under the head of mortgage and 
 privilege, the peculiar securities which, in the 
 common and maritime law, and equity, are 
 termed liens. 
 
 In regard to privilege, Domat says, "We 
 do not reckon in the number of privileges the 
 preference which the creditor has on the 
 movables that have been given him in a 
 pawn; and which are in his custody. The 
 privilege of a creditor is the distinguishing 
 right which the nature of his credit gives him, 
 and which makes him to be preferred before 
 other creditors, even those who are prior in 
 time, and who have mortgages." Domat, 
 part 1, lib. iii. tit. i. sect. v. 
 
 These privileges were of two kinds : one 
 gave a preference on all the goods, without 
 any particular assignment on any one thing ; 
 the other secures to the creditors their secu- 
 rity on certain things, and not on the other 
 goods. 
 
 Among credit&rs who are privileged, there 
 is no priority of time, but each one takes in 
 the order of his privilege, and all creditors 
 who have a privilege of the same kind take 
 proportionately, although their debts be of 
 
LIEN 
 
 9^ 
 
 LIEN 
 
 diflferent dates. And all privileges have 
 equally a preference over those of an inferior 
 class, and over debts which do not have this 
 favored character, whether subsequent or 
 antecedent in point of time. 
 
 The vendor of immovable property, for 
 which payment has not been made, is pre- 
 ferred before creditors of the purchaser, and 
 all other persons, as to the thing sold. By 
 the Roman law, this principle applies equally 
 to movables and immovables ; and the seller 
 may seize upon the property in the hands of 
 his vendee, or wherever he can find it. 
 
 So, too, a person who has lent money to 
 repair a thing, or to make improvements, has 
 this privilege. And this, though he lends to 
 workmen or architects, etc., if it be done 
 with the knowledge of the owner. 
 
 Carriers have a privilege not only for the 
 price of carriage, but for money paid on ac- 
 count of the goods. 
 
 Landlords have a privilege for the rents 
 due from their tenants even on the furniture 
 of the under-tenants, if there be a sub-lease. 
 But not if payment has been made to the 
 teffant by an immediate lessor; although a 
 payment made by the sub-tenant to the land- 
 lord would be good as against the tenant. 
 
 The privilege was lost by a novation, or by 
 any thing in the original contract which 
 showed that the vendor had taken some other 
 security inconsistent with the privilege. See 
 Domat, part i. lib. iii. tit. i. sec. v. 
 
 Mortgages in the civil law are of two kinds, 
 conventional and legal. A conventional mort- 
 gage results from the direct act or covenant 
 of the parties. A legal mortgage arises by 
 mere act of law. 
 
 A mortgage may be acquired in three 
 ways. 
 
 First, with the consent of the debtor, by 
 his agreement. 
 
 Second, without the owner's consent, by 
 the quality and bare efiect of the engagement, 
 the nature of which is such that the law has 
 annexed to it the security of a mortgage. 
 
 Third, where a mortgage is acquired by the 
 authority of justice : as where a creditor who 
 had no mortgage obtains a decree of condem- 
 nation in his favor. • 
 
 When the creditor is put into possession of 
 the thing, movable or immovable, he has a 
 right to keep it until he is paid what is 'owing 
 him ; and the debtor cannot turn the creditor 
 out of possession, nor make use of his own 
 thing without the consent of the creditor. 
 
 Eff'ect of a Mortgage. First, the creditor 
 has a right to sell the thing pledged, whether 
 the creditor has it in his possession or not. 
 Under the French law, it was a right to have it 
 sold. Cushing's Domat, p. 647. 
 
 Second, a right on the part of the creditor 
 to follow the property, into whosesoever hands 
 it has come, whether movable or immovable. 
 
 Third, a preference of the first creditor to 
 whom the property is mortgaged, and a right 
 on his part to follow the property into the 
 hands of the other creditors. 
 
 Fourth, the mortgage is a security for all 
 the consequences of the original deb' as dam- 
 ages, interest, expenses in preserving, etc. 
 
 See, generally, Domat, part i. lib. iii. tit. 
 i. ; Guyot, Rep. Univ. tit. Prioilegium; 
 Cushing's Domat; Massi, Droit Commer- 
 ciel. 
 
 Equitable Liens are such as exist in 
 equity, and of which courts of equity alone 
 take cognizance. 
 
 A lien is neither a jus in re nor a jus ad rem ; 
 it is not property in the thing, nor does it consti- 
 tute a right of action for the thing. It more 
 properly constitutes a charge upon the thing. 
 In regard to these liens, it may be generally 
 stated that they arise from constructive trusts. 
 They are, therefore, wholly independent of the 
 possession of the thing to which they are at- 
 tached as an incumbrance ; and they can be en- 
 forced only in courts of equity ; Story, Eq. Jur. 
 §1215. 
 
 An equitable lien on a sale of realty is very 
 different from a lien at law ; for it operates after 
 the possession has been changed, and is available 
 by way of charge instead of detainer. Adams, 
 Eq. Jur. 127. 
 
 The vendor of land has a lien for the un- 
 paid purchase-money. The principle is stated, 
 "where a conveyance is made prematurely 
 before payment of the price, the money is a 
 charge on the estate in the hands of the 
 vendee;" 4 Kent, 151; Story, Eq. Jur. 8 
 1217; 1 W. Blaekst. 9oO ; 16 Ves. 329; 
 2 Sugd. Vend. 671; 2 Dart, V. & P. 729; 
 also 1 Whi. & T. Lead. Cas. 324 ; 1 Perry, 
 Trusts, § 232; 1 Sch. & L. 132; 6 Johns. 
 Ch. 402; 7 \Yheat. 46; 17 Ves. 433; 10 
 Pet. 625 ; and in the hands of heirs or subse- 
 quent purchasers with notice ; 16 Ves. 337 ; 3 
 Russ. 488; 1 Sch. & L. 135; against as- 
 signees in bankruptcy, under a general assign- 
 ment; Bump, Bankr.; 2 B. R. 183 ; 1 Bro. 
 Ch. 420 ; 9 Ves. 100 ; 2 V. & B. 306 ; 1 
 Vern. 267 ; 1 Madd. 356 ; and whether the 
 estate is actually conveyed or only contracted 
 to be conveyed; Sugd. Vend. c. 12, p. 641; 
 2 Dick. Ch. 730; 12 Ad. & E. 682. 
 
 So, too, where money has been paid prema- 
 turely before conveyance made, the purchaser 
 and his representatives have a lien ; 3 Y. & 
 J. 264; 11 Price, 58; IP. Wms. 278. 
 
 So where the purchase-money has been 
 deposited in the hands of a third person, to 
 cover incumbrances; 1 T. & R. 469 ; 1 Ves. 
 478. Yet a lien will not be created for a 
 third party, who was to receive an annuity 
 under a covenant as a part of the considera- 
 tion for the conveyance ; 3 Sim. 499 ; 1 M. & 
 K. 297; 2 Keen, 81. 
 
 The deposit of the title-deeds of an estate 
 gives an equitable lien on the estate ; 4 Bro. 
 ^. C. 269 ; s. c. 1 Lead. Cas. Eq. 931 ; L. 
 R. 3 P. C. C. 299; without any express 
 agreement either by parol or in writing. But 
 not when the circumstances of the deposit 
 were such as to show that no such lien was 
 intended ; 36 Beav. 27. This equitable lien 
 o*«-n ?,.'^''°^"'^«'^ '« 2 Sandf. Ch. 9; 
 li ^h ^^ ^?^' ^2 Wise. 413; 10 Sm. & 
 JM. 418 ; but denied in 2 Disn. 9 ; 1 Eawle, 
 
LIEN 
 
 93 
 
 LIEN 
 
 825. See 8 B. Monr. 438. This lien is not 
 favored, and is confined strictly to an actual, 
 immediate, and bond fide deposit of the title- 
 deeds with the creditor, as a security, in order 
 to create the lien; 12 Ves. 197; Story, Eq. 
 Jur. I 1020 ; 4 Kent, 150. 
 
 It 19 a general principle that if one party 
 has a lien on two funds for a debt, and an- 
 other party has a lien on one only of the 
 funds for another debt, the latter has a right 
 in equity to compel the former to resort to 
 the other fund in the first instance for satisfac- 
 tion ; 8 Vea. 388 ; 1 Johns. Ch. 318 ; 1 Story, 
 Eq. § 633. 
 
 When there is a lien upon different parcels 
 of land for the payment of the same debt, 
 and some of these lands still belong to the 
 person who ought to pay the debt, and other 
 parcels have been transferred by him to third 
 persons, his part of the land as between them 
 and him is primarily chargeable with the 
 debt ; and it has been further held that if he 
 has sold or transferred different parcels at 
 different times to different persons, as encum- 
 brancers or purchasers, there or between them- 
 selves, they are to be charged with the lien 
 in the reverse order of time of the transfers 
 to them; 5 Johns. Ch. 440; 1 Penn. 275; 
 but a&e. contra, 2 Story, Eq. Jur. § 1233. 
 
 One joint tenant has, in many cases, a lien 
 on the common estate for repairs put on by 
 himself above his share of the Lability ; 1 
 Ball & B. 199; Story, Eq. Jur. § 1236; 
 Sugd. Vend. 611. 
 
 And equity applies this principle even to 
 cases where tenant for life makes permanent 
 improvements in good faith ; 1 Sim. & S. 552. 
 So where a party has made improvements 
 under a defective title ; 6 Madd. 2 ; 9 Mod. 11. 
 
 So, too, there is a lien where property is 
 conveyed inter vivos, or is bequeathed or de- 
 vised by last will and testament, subject to a 
 charge for the payment of debts ; or to other 
 charges in favor of third persons ; Story, Eq. 
 Jur. § 1244. A distinction must be kept in 
 mind between a devise in trust to pay certain 
 sums, and a devise subject to charges. 
 
 A covenant to convey and settle lands does 
 not give the covenantee a lien ; but was held 
 to do so in case of a covenant to settle lands 
 in lieu of dower ; 3 Bro. Ch. 489 ; 1 Ves. 
 451 ;_ 1 Madd. Ch. Pr. 471. 
 
 Waiver. The lien may be waived by 
 agreement ; but postponement of the day of 
 payment is not a waiver, not being inconsist- 
 ent with the nature of the lien ; nor taking 
 personal security; Adams, Eq. Jur. 128; 1 
 Johns. Ch. 308 ; 2 Rand. 428 ; 2 Humphr. 
 248 ; 1 Mas. 192 ; 2 Ohio, 383 ; 1 Blackf. 
 246 J 6 B. Monr. 174; 6 Yerg. 50; 3 Ga. 
 333; 1 Ball & B. 514; 15 Ves. 348. An 
 acknowledgment of the payment of the 
 purchase-money in the body of the deed, or 
 bjr a receipt, will not operate as a waiver or 
 discharge of the vendor's lien if the purchase- 
 money has not in fact been paid ; 30 N. J. 
 Eq. 569 ; 50 Ala. 228 ; 29 Ark. 357. Taking 
 the note or other personsJ. security of the ven- 
 
 dee payable at a future day is generally held 
 merely a means of payment, and not a secu- 
 rity destroying the lien ; 1 Sch. & L. 135 ; 2 
 V. & B. 306 ; 1 Madd. 349 ; 2 Rose, 79 ; 2 
 Ball &B. 514; 12W. Va. 575; 50 Ala. 34 ; 
 26 N. J. Eq. 311 ; 44 Mi.ss. 508; 20 N. J. 
 Eq. 109 ; 25 Ark. 510 ; 21 Vt. 271 ; 1 Johns. 
 Ch. 308. But if it be the note of a third 
 party, or an independent security on real es- 
 tate, it would generally be a waiver ; Story, 
 Eq. Jur. § 1223, n. ; 4 Kent, 151 ; 4 Wheat. 
 290; 1 Paige, Ch. 20; 9 Cow. 316; 1 Mas. 
 212; 4Mo. App. 292; 67 111.599; 10 R.I. 
 334; 10 Heisk. 477; 49 Mo. 64; 43 Miss. 
 670 ; 46 Texas, 204 ; 30 Md. 422 ; 4 Wheat. 
 255; 20 Ohio, 546; 15 Ind. 435; 16 N. H. 
 592; 17 Cal. 70; 2 Mich. 243; 4 N. Y. 
 312; 66 Mo. 44. And, generally, the ques- 
 tion of relinquishment will turn upon the 
 facts of each case ; 6 Ves. 752; 15 id. 329 ; 
 3 Russ. Ch. 488; 3 Sugd. Vend. c. 18; 8 J. 
 J. Marsh. 553. 
 
 Maritime Iiiens. Maritime liens do not 
 include or require possession. The word lien 
 is used in maritime law, not in the strict legal 
 sense in which we understand it in courts of 
 common law, in which case there could be no 
 lien where there was no possession, actual or 
 constructive ; but to express, as if by analogy, 
 the nature of claims which neither presuppose 
 nor originate in possession ; 22 E. L. & Eq. 
 62. See 15 Bost. Law Rep. 555; 16 id. 1, 
 264; 17 id. 93, 421. A distinction is made 
 in the United States between qualified mari- 
 time liens, which depend upon possession, and 
 absolute maritime liens, which do not require 
 nor depend upon possession ; 7 How. 729 ; 21 
 Am. Law Reg. 1. 
 
 The shipper of goods has a lien upon the 
 ship, for the value of the goods sent, which 
 can be enforced in admiralty ; 1 Blatchf. & 
 H. 300; Olcott, 43; 1 Blatchf. 1 73 ; Ware, 
 188, 322; Daveis, 172; 22 How. 491 ; Crabbe, 
 534 ; 3 Blatchf. 271, 289 ; 1 Sumn. 551 ; 
 and, generally, every act of the master binds 
 the vessel, if it be done within the scope of 
 his authority ; 2 Pars. Sh. & Ad. 7 ; 17 Me. 
 147 ; 1 W. Rob. 392 ; 2 E. L. & Eq. 536 ; 
 18 Haw. 182 ; where the possession of the 
 master is not tortious, but under a. color of 
 right ; ,6 McLean, 484. This does not apply 
 to contracts of material men with the master 
 of a domestic ship ; 1 Conkl. Adm. 73 ; and 
 the act must have been within the scope of 
 the master's employment; 18 How. 182. 
 See 1 C. Rob. 84. This lien follows the ship 
 even in the hands of a purchaser, without no- 
 tice before the creditor has had a reasonable 
 opportunity to enforce his lien ; Ware, 188. 
 If the master borrow money for the ship's 
 necessity, the lender has a lien on the ship 
 for the amount; 4 DalL 225; 8 Me. 298. 
 A sale of the vessel by the master through 
 necessity cuts off the hen of the shipper of 
 the cargo in the vessel ; 6 Wall. 18. 
 
 The owner of a ship has a lien on the cargo 
 carried for the freight earned, whether re- 
 served by a bill of lading or not ; 12 Mod. 
 
LIEN 
 
 94 
 
 LIEN 
 
 447; 4 B. «E Aid. 630; 2 B. & B. 410; 
 6 Pick. 248 ; 18 Johns. N. Y. 157 ; 5 Sandf. 
 N. Y. 97; 8 Ohio, 88; 4 Wash. C. C. 110; 
 8 Wheat. 605 ; Ware, 149 ; 1 Sumn. 651 ; 
 2 W. &»M. 178. 
 
 This lien is, at most, only a qualified mari- 
 time lien; see 1 Pars. Mar. Law, 174, n. 
 The lien exists in case of a chartered ship ; 
 
 4 Cow. 470 ; 1 Paine, 358 ; 4 B. & Aid. 630 ; 
 20 Bost. L. Kep. 669 ; 8 Wheat. 605 ; to the 
 extent of the freight due under the bill of 
 lading; 2 Atk. 621 ; 1 B. & Aid. 711 ; 4 id. 
 630; 1 Sumn. 551. But if the charterer takes 
 possession and management of the ship, he 
 has the lien; 1 Cowp. 143; 8 Cra. 39; 6 
 Pick. 248 ; 4 Cow. 470 ; Ware, 149 ; 4 M. 
 & G. 502. No lien for freight attaches before 
 the ship has broken ground ; 1 B. & P. 634 ; 
 
 5 Binn. 392 ; 3 Gray, 92. But see, as to the 
 damages for removing goods from the ship 
 before she sails, 28 E. L. & Eq. 210 ; 1 C. B. 
 328 ; 2 C. & P. 334 ; 19 Bost. L. Rep. 679 ; 
 2 Gray, 92. 
 
 No lien exists for dead freight; 15 East, 
 647 ; 3 Maule & S. 205. The lien attaches 
 only for freight earned ; 3 Maule & S. 205 ; 
 Ware, 149; 2 Brev. 233. The lien is lost by 
 a delivery of the goods ; 6 Hill, 43 ; but not 
 if the delivery be involuntary or procured by 
 fraud ; id. So it is by stipulations incon- 
 sistent with its exercise; 17 How. 53; 10 
 Conn. 104 ; 6 Pick. 248 ; 4 B. & Aid. 50 ; 
 32 E. L. & Eq. 210 : as, by an agreement to 
 receive the freight at a day subsequent to the 
 entire delivery of the goods, — a distinction 
 being, however, taken between the unloading 
 or arrival of the ship, and the delivery of the 
 goods; 1 Sumn. 551; 18 Johns. 157; 14 M. 
 
 6 W. Exch. 794; 2 Sumn. 689; 10 Mass. 
 510. 
 
 A third person cannot take advantajje of the 
 existence of such lien ; 3 East, 85. A ven- 
 dor, before exercising the right of stoppage in 
 transitu, must discharge this lien by payment 
 of freight ; 1 Pars. Mar. L. 495 ; 15 Me. 
 314; 3 B. &P. 42. 
 
 Master's Lien. In England, the master 
 has no lien, at common law, on the ship for 
 wages, nor disbursements; 33 E. L. & Eq. 
 600; 1 B. & Aid. 575; 6 D. & R. 552; 6 
 How. 112. 
 
 But now, by the one-hundred-and-ninety- 
 first section of the English Merchant Ship- 
 ping Act of 1854, it is provided that " Every 
 master of a ship shall, so far as the case per- 
 mits, have the same rights, liens, and reme- 
 dies for the amount of his wages, which, by 
 this act, or any law or custom, any seaman, 
 not being a master, has for the money of his 
 wages." And it has been properly held by 
 Judge Sprague, of the United States district 
 court, that this lien of the master on an Enor- 
 lish vessel may be reinforced in the admiralty 
 courts of the United States; 22 Bost. L. 
 Rep. 160. See 9 Wall. 435; 3 Fed. Rep. 
 577; 7 id. 247, 674. 
 
 In the United States, he has no lien for 
 his wages ; 2 Paine, 201 ; 1 Pet. Adm. 223 ; 
 
 IX id. 175; 3 Mas. 91; 14 Penn. 34; 18 
 Pick. 530. This does not apply to one not 
 master in fact ; Bee, 198. As to lien for dis- 
 bursements, see 2 Curt. C. C. 427 ; 14 Penn. 
 34; 11 Pet. 175. He may be substituted if 
 he discharge a lien ; 1 Pet. Adm. 223 ; Bee, 
 116 ; 3 Mas. 255. But he has a lien on the 
 freight for disbursements ; 4 Mass. 91; Hid. 
 72 ;' 5 Wend. 316 ; 2 Pars. Sh. & Ad. 25, n. ; 
 for wages in a peculiar case ; Ware, 149 ; and 
 on the cargo, where it belongs to the ship, 
 owners ; 14 Me. 180. He may, therefore, 
 detain goods against the shipper or consignee, 
 even after payment to owner, if the master 
 give reasonable notice; 11 Mass. . 72; 5 
 Wend. 316; 4 Esp. 22. But see 5 D. & 
 R. 552. The master may retain goods till a 
 contribution bond is signed; 11 Johns. 23; 
 11 Me. 150; 13 id. 357. 
 
 J'Ae seamen's lien for wages attaches to the 
 ship and freight, and the proceeds of both, 
 and follows them into whosesoever hands they 
 come ; 2 Sumn. 443 ; 2 Par. Mar. L. 60 ; 
 and lies against a part, or the whole, of the 
 fund; 3 Sumn. 50, 286; but not the cargo; 
 5 Pet. 675. It applies to proceeds of a vessel 
 sold under attachment of a state court; 2 
 Wall. C. C. 692 ; overruling 1 Newb. 215. 
 
 This lien of a seaman is of the nature of 
 the privilegium of the civil law, does not de- 
 pend upon possession, and takes precedence 
 of a bottomry bond or hypothecation ; 2 Pars. 
 Mar. Law, 62, and cases cited ; 15 Bost. L. 
 Rep. 565; 16 id. 264; Ware, 134. Taking 
 the master's order does not destroy the lien ; 
 Ware, 185. And see 2 Hagg. Adm. 136. 
 Fishermen on shares have it, by statute. 
 Generally, all persons serving in a way di- 
 rectly and materially useful to the navigation 
 of the vessel; Gilp. 605 ; 3 Hagg. Adm. 
 376 ; 2 Pet. Adm. 268 ; Ware, 83 ; 1 
 Blatchf. & H. 423 ; 1 Sumn. 384 ; 1 Ld. 
 Raym. 397. A woman has it if she performs 
 seaman's service; 1 Hagg. Adm. 187; 18 
 Bost. L. Rep. 672; 1 Newb. 5. It lies 
 against ships owned by private persons, but 
 not against government ships employed in the 
 public service ; 9 Wheat. 409 ; 3 Sumn. 308. 
 
 ^ ship broker, who obtains a crew, has 
 been held to have a lien for his services and 
 advances for their wages ; 1 Blatclif. & H. 
 189. One who performs towage service on 
 the navigable waters of the United States 
 acquires_ a lien, which may be enforced by 
 proceedings in rem, and cannot be destroyed 
 by the sale of the vessel under a state law; 
 9 Fed. Rep. 777. 
 
 Stevedores have no lien; Olcott, 120; 1 
 Wall. Jr. 370. 
 
 Material men have a lien by admiralty law. 
 They are those whose trade it is to build, 
 repair, or equip ships, or to furnish them 
 with tackle and provisions necessary in any 
 kind; 3 Hagg. Adm. 129. In regard to 
 foreign ships, it has been held that material 
 men have a lien on the ship only when the 
 supplies were necessary and could be obtained 
 only on the credit of the ship ; 19 How. 359 ; 
 
LIEN 
 
 95 
 
 LIEN 
 
 13 Wall. 329. The lien for repairs continues 
 only as long as they retain possession, on do- 
 mestic ships ; Wright, Ohio, 660 ; 4 Wheat. 
 438 ; 1 Stor. 68 ; and is gone if possession is 
 left ; 14 Conn. 404 ; 4 Wheat. 438 ; 4 Wash. 
 C. C. 453. And see supra. 
 
 The several states of the United States are 
 foreign to each other in this respect. Where 
 repairs are made at the home port of the 
 owner, the maritime law of the United States 
 gives no maritime lien, the rights of the par- 
 ties being altogether governed by the local 
 law. The liens given by the state laws have, 
 however, been enforced by the federal courts, 
 not as rights which they were bound to en- 
 force, but as discretionary powers which they 
 might lawfully exercise, when the controver- 
 sies were within the admiralty jurisdiction ; 1 
 Black, 522; 21 Wall. 558; 95 U. S. 69; 1 Fed. 
 Eep. 218; 2 id. 364; 8 id. 366. The state 
 legislatures cannot create a maritime lien, nor 
 can they confer jurisdiction upon a state court 
 to enforce such a lien by a proceeding in rem ; 
 but they can authorize their enforcement by 
 common law remedies ; 4 Wall. 430, 571 ; 
 16 id. 534; 9 Am. L. Rev. 638; 2 Pars. 
 Shipp. & Ad. 157; 24 Iowa, 192; Field & 
 M. Fed. Pr. 561 ; 43 N. Y. 554 ; 21 Am. L. 
 Keg, N. s. 88 ; 16 Am. L. Rev. 193. 
 
 As to the order of precedence of these 
 liens, see Daveis, 199 ; Ware, 565 ; 2 Curt. 
 C. C. 421; 8 Fed. Rep. 331,. 833. 
 
 Giving credit will not be a waiver of a lien 
 on a foreign ship, unless so given as to be in- 
 consistent with the exercise of the lien ; 7 
 Pet. 324 ; 1 Sumn. 73 ; 5 Sandf. 342 ; 4 Ben. 
 151. 
 
 Builders' liens may be placed on the com- 
 mon-law ground that a workman employing 
 skill and labor on an article has a lien upon 
 it; 2 Rose, 91 ; 4 B. & Aid. 341 ; Wright, 
 Ohio, 660 ; 4 Wheat. 438 ; 1 Stor. 68 ; and a 
 lien for the purpose of finishing the ship, 
 where payments are made by instalments ; 1 
 Pars. Shipp. & Ad. 64 n. ; 5 B. & Aid. 942. 
 
 Collision. In case of collision the injured 
 vessel has a lien upon the one in fault for the 
 damage done; 22 E. L. & Eq. 62; Crabb, 
 580 ; and the lien lasts a reasonable time ; 18 
 Bost. L. Rep. 91; 1 Pars. Shipp. & Ad. 531. 
 
 A part-owner, merely as such, has no lien 
 whatever, but acquires such a lien when any 
 of the elements of partnership or agency, 
 with bailment upon which his lien may rest, 
 enter into his relation with the other part- 
 owners ; 1 Pars. Sh. & Ad. 115. 
 
 A part-owner who has advanced more than 
 his share towards building a vessel has no 
 lien on her for such surplus ; 6 Pick. Mass. 
 46 ; and none, it is said, for advances on ac- 
 count of a voyage ; 4 Pick. 456 ; 7 Bingh. 
 709. 
 
 That the relation of partners must exist to 
 give the lien; 20 Johns. 61 ; 4 B. Monr. 458; 
 8 B. &C. 612; Gilp. 467; 4 Johns. Ch. 522; 
 6 Pick. 120 ; 5 Mann. & R. 25. 
 
 And part-owners of a ship may become 
 partners for a particular venture ; 1 Ves. Sr. 
 
 497 ; S W. & M. 193 ; 10 Mo. 701 ; 9 Pick. 
 334. But see 14 Penn. 34. 
 
 The ship's husband, if a partner, has a 
 partner's lien ; if not, he may have a lien on 
 the proceeds of the voyage ; 8 B. & C. 612 ; 
 16 Conn. 12, 23 ; 3 W. & M. 193 ; or of the 
 ship herself, if sold, or on her documents, if 
 any of these have come into his actual pos- 
 session. And the lien applies to all disburse- 
 ments and liabilities for the ship. But it is 
 doubtful if his mere office gives him a lien ; 
 
 1 Pars. Mar. Law, 113 ; 2 Curt. C. C. 427 ; 
 
 2 V. & B. 242 ; Cowp. 469. 
 
 Deposit of a hill of lading gives a lien for 
 the amount advanced on the strength of the 
 security ; 5 Taunt. 558 ; 2 Wash. C. C. 283 ; 
 B. & L. Adm. 38. 
 
 These liens of part-owners and by deposit 
 of a bill of lading are not maritime liens, 
 however, and could not be enforced in admi- 
 ralty. See Collision ; Seamen's Wages; 
 Marshalling or Assets ; Mastek ; Cap- 
 tain ; Privilege. 
 
 Statutory Lien. Under this head it is 
 convenient to consider some of those liens 
 which subsist at common law, but have been 
 extensively modified by statutory regulations, 
 as well as those which subsist entirely by force 
 of statutory regulations. 
 
 The principal liens of this class are judg- 
 ment liens, and liens of material men and 
 builders. 
 
 Judgment Lien. At common law, a judg- 
 ment is i«erely a general security and not a 
 specific lien on land ; 2 Sugd. Vend. *517; 
 but by Stat. 1 & 2 Vict. c. 110, it is made a 
 charge upon all lands, tenements, etc., of 
 which the debtor is owner or in which he is in 
 any way interested, and it binds all persons 
 claiming under him after such judgment, in- 
 cluding his issue, and other persons whom he 
 could bar; id. *523. And now by stat. 27 
 & 28 Vict. c. 112, judgments are not liens 
 upon lands until such lands have been actu- 
 ally delivered in execution. 
 
 In Alabama. Judgments are not liens ; 57 Ala. 
 448. It requires an execution in the bands of 
 the sheriff to create a lieu either on real or per- 
 sonal property ; 58 Ala. 577 ; 59 id. 625. 
 
 In Arizona. Judgments are liens on real 
 property, and attach to after-acquired property, 
 binding for two years after being docketed; 
 Comp. Laws, 440, § 209. 
 
 In Arkansas. The lien attaches to real estate 
 situate in the county in which the court is held. 
 It begins from the delivering of execution to the 
 officer ; 13 Ark. 421 ; 18 id. 414 ; and binds after- 
 acquired lands ; 13 Ark. 74. The limitation is 
 ten years ; Gantt's Dig. ch. 79, § 3603 ; 36 Ark. 
 353 ; 33 Ark. 378. 
 
 In California. The lien attaches immediately 
 upon the judgment being docketed, and binds 
 all lands of the debtor including those after 
 acquired for two years ; C. C. P. § 671 ; 37 Cal. 
 131. The perfecting of an appeal does not dis- 
 charge the lien ; 25 'Cal. 337. 
 
 In Colorado. The lien attaches to real estate 
 when an abstract of the judgment certiiied by 
 the clerk of court is filed in the county where the 
 real estate is situated, and binds for seven years 
 from the last day of the term when rendered ; 
 Col. Laws, ch. 48 ; 1 Col. 84. 
 
LIEN 
 
 96 
 
 LIEN 
 
 In Connectvyat. Judgments are not liens un- 
 less made so by being recorded against particu- 
 lar real estate ; Gen. Stat. tit. 1, § 24 ; 17 Conn. 
 878. 
 
 In Dakota. The lien of a judgment attaches 
 to all real estate, excepting homesteads, as soon 
 as it is docketed, and la^ts for five years ; C. C. 
 P. § 300. 
 
 In Delaware. The lien attaches immediately 
 upon entering of the judgment. The limitation 
 is twenty years ; Del. Laws, ch. 110. 
 
 In District of Columbia. Judgments are liens 
 on real estate, but not on equitable interests, 
 from the date of rendition, and on personal pro- 
 perty for twelve years ; R. S. D. C, 265. 
 
 In Florida. Judgments are liens upon real 
 estate in the county where rendered, and may be 
 made in other counties by filing a transcript 
 there; McCIellan, Dig. 618 ; 12 Fla. 633. 
 
 In Georgia. Domestic judgments are a lien 
 from their date upon both real and personal pro- 
 perty for seven years, and may be revived for 
 three years additional ; Code, § 2913, 2914 ; for- 
 eign judgments bind for five years ; 42 Ga. 212, 218. 
 
 In Idaho. The lien of a judgment begins 
 from the time it is docketed, and binds all the 
 property of the debtor not exempt for two years ; 
 Rev. Laws, 1874-7.5, § 225. 
 
 In Illinois. When execution is not issued on 
 a judgment within one year from the time of 
 rendition, it ceases to be a lien, but execution 
 may issue at any time within seven years, and 
 becomes a lien immediately upon delivery to the 
 Bherifl'; R. S. ch. 77 ; 84 111. 557. 
 
 In Indiana. Judgments of the supreme, cir- 
 cuit, and superior courts are a lien upon all real 
 estate in the county where rendered for ten 
 years, and may be made so in other counties by 
 filing a transcript ; 2 Ind. Stat. § 264, p. 527 ; 9 
 Ind. 92 ; 73 Ind. 235. ♦ 
 
 In Iowa. Judgments of the supreme, district, 
 and circuit courts are liens on real estate, owned 
 or after acquired for ten years from the date of 
 the judgment, including equitable as well as 
 legal ; Stat. ch. 9 ; 40 la. 425. 
 
 In Kansas. For five years, and may be con- 
 tinued by revival ; Com. Laws, § 3972 ; S Kan. 
 280; 13 ia!. 53. 
 
 In Kentucky. Judgments are liens upon the 
 real estate from the time the writ of fieri facias 
 is delivered to the oiHcers for execution ; 1 Gen. 
 Stat. 417 ; 1 B. Mon. 109. 
 
 In Louisiana. Judgments recorded in the 
 ofiElce of the parish recorder operate as mortgages 
 upon all real estate from the date of record ; 
 Ci«. Code, § 3189. 
 
 In Maine. Except under an attachment on 
 mesne process for thirty days, judgments are 
 not a lieu ; R. S. ch. 81, § 64. 
 
 Jn Maryland. The lien of a judgment lasts 
 for twelve years ; Rev. Code, art. 64, § 135 ; 18 
 Md. 504 ; 37 id. 443. 
 
 In Massachusetts. Judgments do not consti- 
 tute a lien. All attachments on mesne process 
 continue in force for thirty days after judgment : 
 Mass. Stat. 635. 
 
 In Michigan. Judgments have no effect on 
 the debtor's property until execution has been 
 issued and levy made ; 2 Comp. Laws, 1871, ch. 
 165. 
 
 In Minnesota. Judgments are a lien upon all 
 real estate in the county where rendered, either 
 owned or after-acquired for ten years ; R. S. ch. 
 66 ; 10 Minn. 303. 
 
 In Mississippi. When enrolled in the oflBce of 
 the clerk of the circuit court, judgments become 
 liens and bind the property within the county 
 where rendered ; Miss. Rev. Code, § 830. 
 
 In Missouri. Judgments of courts of record 
 
 are liens upon all present and after-acquired 
 real estate in the county where rendered for 
 three years, and may be made so in other coun- 
 ties by filing a transcript. Liens may be revived 
 by scire facias for two years ; Mo. Code, § 2789 ; 
 67 Mo. 201. 
 
 Jn Montana. From the time of docketing, 
 judgments become a lien upon all real property 
 owned or after acquired in the county where 
 rendered for six years ; Code C. P. § 295. 
 
 In Nebraska. Judgments in the district court 
 are liens upon the lands of the debtor in the 
 county where rendered from the first day of the 
 term, but judgments by confession, and those 
 rendered at the same time the action was com- 
 menced, bind only from the day when rendered ; 
 Comp. §tat. § 477. By filing a transcript in the 
 district court of another county, a judgment 
 may be made a lien there ; Comp. Stat. ^ 429. 
 
 In Nevada. Judgments are liens for two 
 years from the time of docketing, and may be 
 made so in other counties by filing a transcript ; 
 1 Comp. Laws, § 1267 ; 1 Nev. 398. 
 
 In New Hampshire. Judgments are not liens ; 
 as to attachments, see Gen. Laws, 517. 
 
 In New Jersey. Judgments are liens from the 
 date of actual entry for twenty years ; N. J. Rev. 
 Stat. 520; 1 Zabr. 714, 751 ; 2Vroom, 171. 
 
 In New Mexico. Judgments are liens on the 
 real estate in the county where docketed, and 
 may be made so in other counties by filing a 
 transcript ; Gen. Laws. 
 
 In New York. A judgment of a court of 
 reeord or justice's court exceeding $25 is a lien 
 on real estate for ten years from the time of 
 docketing ; Code, § 1251 ; 50 N. T. 655 ; 6 Barb. 
 470. 
 
 In North Carolina. Judgments of the supe- 
 rior court are liens upon real property, except 
 homesteads, for ten years, from the time of 
 docketing. Transcripts may be filed and thus 
 become liens in other counties ; Battle's Rev. ch. 
 17, § 259 ; 71 N. C. 135. 
 
 In Ohio. Lands and tenements are bound by 
 the lien of a judgment in the county where ren- 
 dered for five years from the first day of the 
 term ; R. S. 5375. The lien then becomes dor- 
 mant, but may be revived by scire facias at any 
 time within twenty-one years ; R. 8. 5368. 
 
 In Oregon. Judgments are liens upon real 
 estate within the county, whether owned or after 
 acquired, for ten years ; Code, § 267. 
 
 In Pennsylvania. Judgments bind all the 
 real estate in the county where rendered for five 
 years, and may be continued by revival ; but are 
 not liens on after-acquired real estate unless 
 revived, and after-acquired real estate can be 
 reached by execution. A verdict for a specific 
 sum is also a lien ; 1 Purd. Dig. § 18 ; Act of 
 March 23, 1877. 
 
 In Rhode Island. A judgment is not a lien ; 
 Gen. Stats, ch. 145, § 15. 
 
 In South Carolina. Judgments are made a 
 lien on lands by the acts of 1873-74, for a period 
 of ten years from the date of entry. 
 
 In Tennessee. Judgments are liens, If ren- 
 dered in the county where the defendant resides, 
 against all his real estate wherever situate, for 
 twelve months ; but, in counties of 4000 or more 
 inhabitants, they become liens only from the date 
 of filing an abstract of the judgment in the regis- 
 ter's ofSce of the county where the land is 
 situated, unless actual notice of judgment has 
 been given ; Ten. Stat. § 2980. The lien extends 
 to after-acquired lands ; 13 Humphr. 177. 
 
 In Texas. Judgments are liens for ten years 
 from the date of record. 
 
 In Utah, Judgments are liens upon all real 
 property for two years from the time of docketing. 
 
LIEN 
 
 97 
 
 LIFE 
 
 To bind land in other counties, a transcript must 
 be flled. After five years, liens cannot be revived 
 by tcire facias ; Comp. Laws, 45. 
 
 In Vermont. Judgments are not liens. 
 
 M Virginia. Judgments are liens for one 
 year, and can be revived by scire facias within 
 ten years from time of dociceting ; Code, 1166 ; 
 31 Gratt. 112. 
 
 In Washington. Judgments become liens for 
 five years upon land situated within the county 
 &um the time a transcript is filed in the county 
 auditor's oiSce ; Stat. § 335. 
 
 In West Virginia. Judgments are liens for 
 ten years from the time they are docketed ; K. 8. 
 ch. 163, § 5. 
 
 In Wisconsin. Judgments of the circuit court 
 become a lien on all real estate within the county 
 for ten years from the time of docketing, and 
 bind real estate in other counties when a tran- 
 script is filed ; R. S. ch. 128, § 2901. 
 
 In Wyoming. Judgments constitute a lien 
 from the first day of the term when rendered ; 
 they become dormant in five years and cease to 
 be liens ; Comp. Laws, tit. xiv. § 437. 
 
 Judgments rendered in the federal courts 
 have the' same lien as those rendered in the 
 courts of the respective states wherein they are 
 held. Judgments in the circuit court for the 
 eastern district of Pennsylvania have been de- 
 cided to be liens against land in both the eastern 
 and western districts of Pennsylvania. 
 
 Mechanics' Liens. 
 
 The lien of mechanics and materia] men on 
 buildings and for work done and materials fur- 
 nished is unknown either at common law or in 
 equity ; 13 Penn. 167 ; 6 Wall. 561 ; but it exists 
 in all of the United States by statute, to a greater 
 or less extent. Each state has its own me- 
 chanics' lien law, differing often in minor particu- 
 lars, but alike in their general provisions. In 
 most of the states, this lien is equal to that of a 
 judgment or mortgage, and can be assigned and 
 enforced in a similar manner ; 26 Conn. 317. The 
 lien affects only real estate, and attaches to the 
 materials only when they become real estate by 
 being erected into a building and attached to the 
 land ; 2 Vroom, 477 ; but should the building 
 be removed or destroyed, the lieu does not remain 
 upon the laud ; 26 Penn. 246 ; nor upon any portion 
 of the materials of which the building was com- 
 posed ; 28 Penn. 161. 
 
 The benefits of the statute apply only to the 
 class of persons named therein. The contractor 
 seems to be liniversally secured- by the lien, and 
 in most of the states the sub-contractor and ma- 
 terial man are also protected either by a lien or a 
 right of action against the owner of the land. 
 In some states these provisions extend to work- 
 men, but generally they do not ; Phill. Mech. 
 Liens, 53. Mechanics' lien laws extend to non- 
 residents as well as residents ; 3 Swan, 130 ; 17 
 Minn. 353 ; where the statute was silent on the 
 subject of assigning a mechanic's lien, it was 
 held that an assignee could not prosecute in his 
 own name and avail himself of Its privileges ; 10 
 Wise. 331 ; 36 Me. 384 ; but in other states it has 
 been held that the lien may be assigned precisely 
 as any other chose in action, the assignee taking 
 subject to the equities of the parties ; 15 Gratt. 
 83 ; 12 Penn. 339 ; 14 All. 139 ; 14 Abb. Pr. N. s. 
 381. The right of lien survives to an executor or 
 administrator ; 14 Minn. li'i. 
 
 A lien cannot be acquired against certain classes 
 of property which are exempted on the ground 
 of public policy. Thus public school-houses ; 
 37 How. Pr. 530 ; 10 Penn. 275 ; court-houses, 
 public oflices, or jails, are exempt ; 7 W. & S. 197 ; 
 47 N. T. 666. So also are graveyards ; 3 Penn. L. 
 J. 343. Railroad depots are not exempt ; 11 Wise. 
 Vol. II.— 7 
 
 314; 10 Ohio St. 373; 37 N. H. 410. On the fore- 
 closure of a mortgage surplus moneys take the 
 place of the land and are subject to a lien; 17 
 Abb. Pr. 256 ; so also is a balance in court on sale 
 of a lessee's interest in land and buildings ; 62 
 Penn. 405. See, generally, Phillips, Mechanics' 
 Liens. 
 
 Remedy is by scire facias, in some states ; 
 14 Ark. 370 ; 1 Dutch. 317 ; 14 Tex. 37 ; 22 
 Mo. 140 ; 3 Md. Ch. Dec. 186 ; 14 flow. 
 434 ; 1 2 Penn. 45 ; by petition, in others ; 1 1 
 Cush. 308 ; 4 Wise. 451 ; 14 Ala. N. 8. 33'; 
 11 111. 519; 1 Iowa, 75. Judgment, when 
 obtained, has the effect of a common-law 
 judgment ; 3 Wise. 9. 
 
 Many of the states have made full provi- 
 sions, by statute, for the liens of repairers of 
 domestic ships and builders of ships and 
 steamboats. These liens are generally held 
 to be distinct from maritime liens, though in 
 some respects partaking of the nature of 
 such. For a full discussion of this subject, 
 and a classification of the laws of the different 
 states, see 1 Pars. Mar. Law, 106, and note. 
 
 LIEUTENANT. This word has now a 
 narrower meaning than it formerly had : its 
 true meaning is a deputy, a substitute, from 
 the French lieu (place or post) and tenant 
 (holder). Among civil officers we have lieu- 
 tenant-governors, who in certain cases per- 
 form the duties of governors (see the names 
 of the several states), lieutenants of police, 
 etc. Among military men, lieutenant-general 
 was formerly the title of a commanding gene- 
 ral, but now it signifies the degree above 
 major-general. Lieutenant-colonel is the offi- 
 cer between the colonel and the major. 
 Lieutenant, simply, signifies the officer next 
 below a captain. In the navy, a lieutenant 
 is the second officer next in command to the 
 captain of a ship. 
 
 LIFE. "The sum of the forces by which 
 death is resisted." Bichat. 
 
 A state in which energy of function is ever 
 resisting decay and dissolution. 
 
 It commences, for many legal purposes, at 
 the period of quickening, when the first mo- 
 tion of the foetus in utero is perceived by the 
 mother. 1 Bla. Com. 129 ; Co. 3d Inst. 60. 
 It ceases at death. See Death. 
 
 But physiology pronounces life as existing 
 from the period of conception, because foetuses 
 in utero do die prior to quickening, and then 
 all the signs of death are found to be perfect ; 
 Dean, Med. Jur. 129, 130. 
 
 For many important purposes, however, 
 the law concedes to physiology the fact that 
 life commences at conception, in ventre sa 
 mire. See F(Etus. Thus, it may receive a 
 legacy, have a guardian assigned to it, and 
 an estate limited to its use ; 1 Bla. Com. 130. 
 It is thus considered as alive for all beneficial 
 purposes; 1 P. Wras. 329. 
 
 But for the transfer of civil rights the child 
 must be born alive. The ascertainment of 
 this, as a fact, depends upon certain signs 
 which are always attendant upon life : the 
 most important of these is crying. As to 
 
LIFE-ANNUITY 
 
 98 
 
 LIMITATIONS 
 
 conditions of live birth, see Bikth ; Infanti- 
 cide. 
 
 Life is presumed to continue for one hun- 
 dred years ; 9 Mart. La. 257. As to the 
 presumption of survivorship in case of the 
 death of two persons, at or about the same 
 time, see Death; U Cent. L. J. 367, a full 
 article reprinted from the Irish L. Times. 
 
 LIPE-ANNTIITY. An annual income 
 to be paid during the continuance of a par- 
 ticular life. See Annuity. 
 
 LIFE-ASSURANCE. An insurance of 
 a life upon the payment of a premium: this 
 may be for the whole life, or for a limited 
 time. On the death of the person whose life 
 has been insured during the time for which 
 it is insured, the insurer is bound to pay to 
 the insured the money agreed upon. See 1 
 Bouvier, Inst. n. 1231; Assurance; Policy; 
 Loss. 
 
 LIFE-RENT. In Scotch Law. A right 
 to use and enjoy a thing during life, the sub- 
 stance of it being preserved. 
 
 A life-rent cannot, therefore, be constituted 
 upon things which perish in the use; and 
 though it may upon subjects which gradually 
 wear out by time, as household furniture, 
 etc., yet it is generally applied to heritable 
 subjects. Life-rents are divided into conven- 
 tional and legal. 
 
 The conventional are either simple or by 
 reservation. A simple life-rent, or by a sepa- 
 rate constitution, is that which is granted by 
 the proprietor in favor of another. A life- 
 rent by reservation is that which a proprietor 
 reserves to himself in the same writing by 
 which he conveys the fee to ■ another. Life- 
 rents by law are the terce and the courtesy. 
 SeeTEECE; Courtesy. 
 
 LIFE-RENTER. In Scotch Law. A 
 tenant for life without waste. Bell, Diet. 
 
 LIGrAN, LAGrAN. Goods cast into the 
 sea tied to a buoy, so that they may be found 
 again by the owners, are so denominated. 
 When goods are cast into the sea in storms or 
 shipwrecks, and remain there, without com- 
 ing to land, they are distinguished by the bar- 
 barous names of jetsam, flotsam, and ligan. 5 
 Co. 108 ; Hargr. St. Tr. 48 ; 1 Bla. Com. 292. 
 
 LIGEANCE. The true and faithful obe- 
 dience of a subject to his sovereign, of a citizen 
 to his government. It signifies, also, the 
 territory of a sovereign. See Allegiance. 
 
 LIGrHT. The English doctrine of pre- 
 sumptive title to light and air, arising from 
 the uninterrupted enjoyment of it for twenty 
 years and upward, has not been followed in a 
 majority of the United States; 19 Wend. 
 809 ; 19 Ohio St. 135 ; 33 Penn. 368 ; contra, 
 15 Am. L. Reg. n. s. 6 (a Delaware case) ; 
 see, also, 1 Green, Ch. 57. See Air. Nor in 
 the United States does the doctrine of an im- 
 plied reservation of an easement apply to an 
 easement of light and air ; 1 15 Mass. 204 ; 
 24 Iowa, 35 ; 33 Penn. 371 ; otherwise, if it 
 is an casement of necessity ; 58 Ga. 268 ; 5 
 W. Va. 1. See Ancient Lights; Air. 
 
 LIGHTERMAN. The owner or manager 
 of a lighter. A lighterman is considered a 
 common carrier. See Lighters. 
 
 LIGHTERS. Small vessels employed in 
 loading and unloading larger vessels. 
 
 The owners of lighters are liable like other 
 common carriers for hire. It is a term of the 
 contract on the part of the carrier or lighter- 
 man, implied by law; that his vessel is tight 
 and fit for the purpose or employments for 
 which he offers and holds it forth to the pub- 
 lic ; it is the immediate foundation and sub- 
 stratum of the contract that it is so : the law 
 presumes a promise to that effect on the part 
 of the carrier, without actual proof; and every 
 principle of sound policy and public conve- 
 nience requires it should be so ; 5 East, 428 ; 
 Abb. Shipp. 225 ; 1 Marsh. Ins. 254 ; Wes- 
 kett, Ins. 328 ; Pars. Mar. Law. 
 
 LIGHTNING. An insurance policy pro- 
 vided that the insurer should be liable "for 
 any loss or damage by lightning." The pro- 
 perty insured was destroyed in a tornado. 
 It was held, in an action for the loss, that the 
 word lightning applies to any sudden and 
 violent discharge of electricity occurring in 
 nature, and that, as the evidence tended 
 strongly to show the presence in the tornado 
 of electrical disturbance presenting the usual 
 characteristics of lightning, it was error to 
 nonsuit the plaintiff; 11 N. W. Rep. 894. 
 
 LIGHTS. Those openings in a wall 
 which are made rather for the admission of 
 light than to look out of. 6 J. B. Moore, 47 ; 
 9 Bingh. 305. See Ancient Lights. 
 
 Lamps carried pn board vessels, under sta- 
 tutory regulations or otherwise, for the pur- 
 pose of preventing collisions at night. See 
 Navigation Rules. 
 
 Lamps or lights placed in lighthouses, or 
 other conspicuous positions, as aids to navi- 
 gation at night. See Navigation Rules. 
 
 LIMITATION IN LAVST. A limitation 
 in law, or an estate limited, is an estate to be 
 holden only during the continuance of the 
 condition under which it was granted, upon 
 the determination of which the estate vests 
 immediately in him in expectancy; 2 Bla. 
 Com. 155. 
 
 LIMITATIONS. Of CivU RemecUes. 
 
 In general, by the theory and early practice 
 of the common law, a party who had any 
 legal ground of complaint against another 
 might call the latter to answer in court at 
 such time as suited his convenience ; 13 East, 
 449. This privilege, however, it was soon 
 found, might be productive of great incon- 
 venience, and not unfrequently of great in- 
 justice. Parties might, and often did, wait 
 till witnesses were dead or papers destroyed, 
 and then proceeded to enforce claims to which 
 at an earlier date a successful defence might 
 have been made. Titles were thus rendered 
 uncertain, the tenure of property insecure, 
 and litigation fostered. To prevent these 
 evils, statutes were .passed limiting the time 
 within which a party having a cause of action 
 should appeal to the courts for redress, — 
 
LIMITATIONS 
 
 99 
 
 LIMITATIONS 
 
 hence called statutes of limitation. The doc- 
 trine of fines, of very great antiquity in the 
 history of the common law, the purpose of 
 which was to put an end to controversies, 
 grew out of the efforts to obviate these evils, 
 and frequent attempts, prior to the accession 
 of James I., by statutes of restricted applica- 
 tion, were made to the same end. But till 
 the reign of that prince no general enactment 
 applicable alike to personal and real actions 
 had been passed. 
 
 In 1623, however, by stat. 21 Jac. I. c. 16, 
 entitled " An Act for Limitation of Actions, 
 and for avoiding of Suits in Law," known 
 and celebrated ever since as the Statute oj 
 ■ Limitations, the law upon this subject was 
 comprehensively declared substantially as it 
 exists at the present day in England, whence 
 our ancestors, brought it with them to this 
 country ; and it has passed, with some modi- 
 fications, into the statute-books of every state 
 in the Union except Louisiana, whose laws of 
 limitation are essentially the Prescriptions of 
 the civil law, drawn from the Partidas, or 
 Spanish Code. 
 
 The similarity between the statutes of the 
 several states and those of England is such 
 that the decisions of the British courts and 
 those of this country are for the most part 
 illustrative of all, and will be cited indiscrim- 
 inately in this brief summary of the law as it 
 now stands. Vide 5 B. & Aid. 204; 4 Johns. 
 317; 2 Gaines, Cas. 143. One preliminary 
 question, however, has arisen in this country, 
 growing out of the provision of the national 
 constitution prohibiting states from passing 
 laws impairing the obligation of contracts, for 
 which thSre is no English precedent. Upon 
 this point the settled doctrine is that unless 
 the law bars a right of action already accrued 
 without giving a reasonable time within which 
 to bring an action, it pertains to the remedy 
 merely, and is valid; 4 Wheat. 122; 3 Dall. 
 386; 11 Pet. 420; 3 Whart. 15; 8 Mass. 
 423; 2 Gall. 141; 19 Pick. 578; 2 Mas. 169. 
 Subject to this qualification, a law may ex- 
 tend or reduce the time already limited. But 
 a cause of action already barred by pre-exist- 
 ing statutes will not be revived by a statute 
 extending the time; 5 Mete. Mass. 400; 7 
 Penn. 292 ; 25 Vt. 41 ; 8 Blaokf. 606 ; 2 
 Sandf. Ch. 61 ; 18 Pick. 532 ; 2 Greene 
 (Iowa), 181; 2 Allen, 445; 11 Wise. 432; 
 1 Oregon, 176; though if it be not already 
 barred a statute extending the time will apply ; 
 21 Ark. 95 ; 24 Vt. 620 ; 1 T. B. Monr. 424 ; 
 6 Leg. Gaz. (Pa.) 93. 
 
 Whatever may have been the disposition in 
 the past, the courts are now inclined to con- 
 strue these statutes liberally, so as to effectu- 
 ate their intent ; they are little inclined to 
 fritter away their effect by refinements and 
 subtleties ; 1 Pet. 360 ; 8 Cra. 84 ; Ang. Lim. 
 §23. 
 
 Courts of equity, though not within the 
 terms of the statute, have nevertheless uni- 
 formly conformed to its spirit, and have, as 
 a general rule, been governed by its provi- 
 
 sions, unless special circumstances of fraud or 
 the like require, in the interests of justice, 
 that they should be disregarded ; 12 Pet. 56 ; 
 7 Johns. Ch. 90 ; 9 Pick. 242 ; 3 All. 42 ; 
 17 Ves. 96; 6 Pet. 61; Baldw. 419; 10 
 Wheat. 152; 4 How. 591; 10 Ohio, 424; 
 9 N. J. Eq. 425; 28 111. 44; 3 K. I. 237; 
 Ang. Lim. § 183. And in some cases when 
 claims are not barred by the statute of limita- 
 tions, a court of equity will refuse to inter- 
 fere, on the grounds of public policy, and the 
 difiiculty of doing entire justice between 
 the parties when the original transaction may 
 have become obscure by the lapse of time 
 and the evidence lost. This is what is known 
 as the doctrine of laches, q. v. ; 94 U. S. 
 806 ; Ambl. 645 ; Bisph. Eq. § 260. 
 
 But in a proper case where there are no 
 laches and where there is fraud undiscovered 
 till the statute has become a bar, or it is the 
 fault and wrong of the defendant that the 
 plaintiff did not enforce his legal rights within 
 the limited time, courts of equity will not 
 hesitate to interfere in the interest of justice, 
 and entertain suits long since b'iirred at law ; 
 4 How. 503; 11 CI. & F. 714; 23 Iowa, 
 467 ; 12 Minn. 522; L. R. 8 Ch. App. 398 ; 
 11 Wall. 443. But here, again, courts of 
 equity will proceed with great caution; 7 
 How. 819 ; and hold the complainant to alle- 
 gation and proof of his ignorance of the 
 fraud and when and how it was discovered ; 
 1 Curt. C. C. 390; 1 Watts, 401. 
 
 And courts of admiralty are governed by 
 substantially the same rules as courts of 
 equity; 3 Mas. 91; 2 Sumn. 212 ; 3 Sumn. 
 286; 2 Gall. 477; Sprague, 163; 3 Salk. 
 227. And, although the statute does not 
 itpply in terms to probate courts, there seems 
 to be no reason why it should not be applied 
 according to the principles of equity; 1 Bradf. 
 Surr. 1 ; contra, 61 Penn. 9, as to assets 
 not administered. 
 
 AS TO PKKSONAl. ACTIONS. 
 
 It is generally provided that personal ac- 
 tions shall be brought within a certain speci- 
 fied time — usually six years or less — from 
 the time when the cause of action accrues, 
 and not after; 3 Binn. 374 ; 3 T. B. Mon. 
 113; 13 La. An. 161; and hereupon, the 
 question at once arises when the cause of 
 ax;tion in each particular case accrues. 
 
 Cause of action accrues when. The rule, 
 that the cause of action accrues when and so 
 soon as there is a right to apply to the court 
 for relief, by no means solves the difficulty. 
 When does the right itself so to apply accrue ? 
 Upon this point the decisions are so numerous 
 and so conflicting, or. perhaps more accurately 
 speaking, so controlled by particular circum- 
 stances, that no inflexible rule can be ex- 
 tracted therefrom. In general, it may be said 
 that in actions of contract the cause of action ac- 
 crues when there is a breach of the contract. 
 
 When a note is payable on demand, the 
 statute begins to run from its date ; 2 M. & 
 W. 467; 9 Pick. 488; 10 N. H. 489 ; 5 
 
LIMITATIONS 
 
 100 
 
 LIMITATIONS 
 
 Jonea (Law), N. C. 139 ; 39 Me. 492 ; 7 
 Halst. 247; 60 Barb. 334; 17 Ohio, 9; 3 
 GraBt'9 Cas. 138; 3 Kich. (S. C.) 182. 
 The rule is the same if the note is payable 
 "at any time within six years;" 39 Me. 492; 
 or borrowed money is to be paid "when 
 called on;" 1 Harr. & G. 439. But this is 
 not true of a premium note payable in such 
 portions and at such times as may be neces- 
 sary to cover losses. There the statute only 
 runs from the time of loss, and the assess- 
 ment thereof; 40N.Y. 320; and the statute 
 runs in the case of an ordinary bank note, 
 only from demand and refusal ; 2 Sneed, 
 482. If the note be payable in certain days 
 after demand, sight, or notice, the statute be- 
 gins to run from the demand, sight, or notice ; 
 13 Wend. 267 ; 2 Taunt. 323 ; 8 Dowl. & 
 Ry. 374 ; 5 Halst. 114 ; 4 Harr. Del. 246 ; 
 24 Am. Rep. 605 ; s. c. 36 Mich. 487 ; 
 demand of a note payable on demand 
 should be made within the time limited for 
 bringing the action on the note ; else a note 
 limited to six years might be kept open in- 
 definitely by a failure to make a demand ; 10 
 Pick. 120. Demand of a bill payable " after 
 sight" or "after notice," should be within 
 a reasonable time ; 4 Mas. 336 ; 9 M. & W. 
 506. And when the note is on interest, this 
 does not become barred by the statute till the 
 principal, or some distinct portion of it, be- 
 comes barred ; 2 Crash. 92. Demand upon 
 a note or due bill, payable on demand, is not 
 a condition precedent to a right of action ; 1 1 
 W. N. C. (Pa.) 294. The rule, that a prom- 
 issory note payable on demand with interest, 
 is a continuing security, does not app^ be- 
 tween holder and maker; 41 N. i. 581 ; 
 s. c. 1 Am. Rep. 461. If the note be en- 
 titled to grace, the statute runs from the last 
 day of grace; 1 Shipl. 412; 13 La. An. 
 602. 
 
 Where money is payable in instalments the 
 statute runs as to each instalment from the 
 time of the failure to pay it; 10 Shepl. 
 (Me.) 400 ; 71 Penn. 208. But if the con- 
 tract provides that on failure to pay one in- 
 stalment the whole amount shall fall due, the 
 statute runs as to the whole from such failure ; 
 3 Gale & D. 402. 
 
 Where money is paid hy mistake, the stat- 
 ute begins to run from the time of payment ; 
 9 Cow. 674 ; 25 Penn. 164 ; also in case of 
 usury ; 6 Ga. 228 ; 35 Vt. 503 ; but a shorter 
 time is frequently limited by statute, and where 
 money is paid for another as surety ; 6 Cow. 
 225; 45 N. Y. 268; 110 Mass. 345. 
 
 Where a contract takes effect upon some 
 condition or contingency, or the happening of 
 some event, the statute runs from the per- 
 formance of the condition ; 5 Pick. 384 ; 1 7 
 Pick. 407 ; Ang. Lim. §113; or the happen- 
 ing of the contingency or event; 3 Penn. 
 149; 9 Wend. 287; 1 Whart. 292; and not 
 from the date of the contract. On an agree- 
 ment to devise, the statute runs from the 
 death of the promissor ; 9 Penn. 260. When 
 money is paid, and there is afterwards a fail- 
 
 ure of consideration, the statute runs from the 
 failure ; 14 Mass. 425 ; 9 Bing. 748. 
 
 Where continuous services are rendered, 
 as by an attorney in the conduct of a suit, or 
 by a mechanic in doing a job ; 7 Allen, 274 ; 
 55 Penn. 434 ; 36 N. Y. 255 ; 16 111. 341 ; 
 1 B. & Ad. 16; 4 Watts, 334; the statute 
 begins to run from the completion of the ser- 
 vice. On a promise of indemnity, when the 
 promissee pays money or is damnified, the 
 statute begins to run ; 12 Mete. 130 ; 8 M. & 
 W. 680 ; 14 Johns. 368 ; 3 Rawle, 275 ; 7 
 Pet. 113. 
 
 As to torts quasi ex contractu, the rule is 
 that in cases of negligence, carelessness, un- 
 skilfulness, and the like, the statute runs 
 from the time when these happen respectively, 
 and not from the time when damages accrue 
 therefrom ; 4 Pet. 172 ; 4 Ala. 495 ; 36 Md. 
 501 ; 61 Barb. 136 ; 2 Strobh. 344. Thus, 
 where an attorney negligently invests money 
 in a poor security, the statute runs from the 
 investment ; 2 Brod. & B. 73 ; so, where a 
 party neglected to remove goods from a ware- 
 house, whereby the plaintiff' was obliged to 
 pay damages, the statute runs from the neglect, 
 and not from the payment of damages; 3 
 Jolins. 137; so, where the defendant agreed 
 to go into another state and collect some 
 money, and on his return to pay off a certain 
 judgment, the statute was held to run from 
 the return and demand upon him ; 3 Ired. 481. 
 
 The breach of the contract is the gist of 
 the action, and not the damages resulting 
 therefrom ; 5 B. & C. 259 ; 1 Sandf. 98 ; 3 
 B. & Aid. 288. Thus, where the defendant 
 had contracted to sell the plaintiflf a quantity 
 of salt, but was unable, by reason of the de- 
 struction of the salt, to deliver on demand, 
 and prolonged negotiations for settlement till 
 the statutory limitation had expired, and then 
 refused, the statute was held to run from the 
 demand, the non-delivery being a breach of 
 the contract; 1 E. L. & Eq. 44. So, where 
 a notary public neglects to give seasonable 
 notice of non-payment of a note, and the 
 bank employing him was held responsible for 
 the failure, upon suit brought by the bank 
 against the notary to recover the damages it 
 had been obliged to pay, the action was held 
 to be barred, it not being within six years of 
 the notary's default, though within six years 
 of the time when the bank was required to 
 pay damages ; 6 Cow. 278. 
 
 So, where an attorney makes a mistake in 
 a writ, whereupon, after prolonged litigation, 
 nonsuit follows, but not till an action against 
 the indorser on the note originally sued has 
 become barred, the mistake was held to. set 
 the statute in motion ; 4 Pet. 172 ; 4 Ala. 495. 
 
 A captain who barratrously loses his vessel 
 is freed from his liability to the underwriter 
 in six years after the last act in the barratrous 
 proceeding ; 1 Campb. 539. Directors of a 
 bank liable by st-atute for mismanagement are 
 discharofed in six years after the insolvency of 
 the bank is made known ; 16 Mass. 68. 
 
 In some states a distinction has been taken 
 
LIMITATIONS 
 
 101 
 
 LIMITATIONS 
 
 in cases where a public officer has neglected 
 duties imposed on him by law, and the statute 
 is in such cases said to run only from the time 
 when the injury is developed ; 26 Conn. 324 ; 
 but see 8 Shepl. 314; 97 Penn. 47; and 
 it has been held that if a sheriff' make 
 an insufficient return, and there is in conse- 
 quence a reversal of judgment, the statute 
 runs from the return, and not from the re- 
 versal of judgment; 16 Mass. 456. So where 
 a sheriff collects money and makes due return 
 but fails to pay over, the statute runs from 
 the return ; 11 Ala. 679 ; or from the demand 
 by the creditor ; 10 Mete. 244. If he suffers 
 an escape, it runs from the escape ; 2 Mod. 
 212; if he takes insufficient bail, from the 
 return of non est inventus upon execution 
 against the principal debtor ;* 1 7 Mass. 60 ; 
 20 Me. 93 ; if he receive money in scire 
 facias, from its reception ; 9 Ga. 413 ; if he 
 neglects to attach sufficient property, on the 
 return of the writ, and not from the time 
 when the insufficiency of the property is as- 
 certained ; 27 Me. 443. 
 
 The same principle applies in cases of torts 
 pure and simple; 24 Penn. 186; 16 Pick. 
 241 ; 1 Rawle, 27 ; 4 Ohio, 331 ; 6 Ohio St. 276. 
 
 An action against a recorder of deeds for 
 damages caused by a false certificate of search 
 against encumbrances on real property, must 
 be brought within six years from the date 
 of the search, and not from the date of the 
 discovery of the lien overlooked or of the loss 
 suffered by the plaintiff; 97 Penn. 47. 
 
 In cases of nuisance, the statute begins to 
 run from the injury to the right, without 
 reference, to the question of the amount of 
 the damage, the law holding the violation of 
 a right as some damage ; 8 East, 4 ; 16 Pick. 
 241 ; 1 Rawle, 27 ; 10 Wend. 260. And so 
 when a party having a right to use land for a 
 specific purpose puts it to other uses, or wrong- 
 fully disposes of property rightfully in posses- 
 sion, the statute begins to run from the per- 
 version ; 24 Penn, 186. In trover, the statute 
 runs from the conversion ; 7 Mod. 99 ; 4 H. 
 & J. 393 ; 21 6a. 454 ; 15 Mass. 82 ; 5 B. & 
 C. 149 ; in replevin, from the unlawful taking 
 or detention. The limitation in the statute 
 of James of actions for slander to two years 
 next after the words spoken, applies only to 
 cases where the words are actionable in 
 themselves, and not when they become action- 
 able by reason of special damage arising from 
 the speaking thereof; 1 Salk. 206; 10 Wend. 
 167; 5 Watts, 308. The limitation extends 
 neither to slander of title; Cro. Car. 140; 
 nor to libel ; Arch. PI. 29. In cases of tres- 
 pass, crim. con., etc., the statute runs from the 
 time the injury was committed ; 5 N. H. 314. 
 
 Adverse possession of personal property 
 gives title in six years after the possession 
 becomes adverse; 16 Vt. 124; 1 Brev. Ill ; 
 
 16 Ala. N. s. 696 ; 9 Tex. 123 ; 3 Mete. 137 ; 
 
 17 Tex. 206. But one who holds by consent 
 of true owners is not entitled to have the 
 statute run in his favor until denial of the 
 true owner's claim ; 34 Ala. 188 ; Ang. Lim. 
 
 304, n. ; 55 N. H. 61. But different adverse 
 possessions cannot be linked together to give 
 title; 8 Strobh. 31; 1 Swan, 501; 11 
 Humphr. 369. The statute acts upon the 
 title, and, when the bar is perfect, transfers 
 the property to the adverse possessor ; while 
 in contracts for the payment there is no such 
 thing as adverse possession, but the statute 
 simply affects the remedy, and not the debt ; 
 18 Ala. N. g. 248. 
 
 Computation of time. In computing the 
 time limited, much discussion has been had 
 in the courts whether the day when the 
 statute begins to run is to be included or 
 excluded, but without any satisfactory result. 
 It is most generally held that when the com- 
 putation is from an act done the day upon 
 which the act is done is to be included, and 
 when it is from the date simply, then if a 
 present interest is to commence from the date 
 the day of the date is included, but if merely 
 used as a terminus from which to compute 
 time, then the day of the date is excluded ; 
 9 Cra. 104; 3 Term, 623; 1 Ld. Kaym. 
 280; 17 Penn. 48; Price, Lim. & Liens, 
 361; Hob. 139; 15 Mass. 193; 2 Cow. 605. 
 This rule, however, of including the day upon 
 which an act is done, is subject to so many 
 exceptions and qualifications that it can hardly 
 be said to be a rule, and many of the cases 
 are wholly irreconcilable with it. It has been 
 well said that whether the day upon which an 
 act is done or an event happens is to be 
 included or excluded, depends upon the cir- 
 cumstances and reasons of the thing, so that 
 the intention of the parties may be effected ; 
 and such a construction should be given as 
 will operate moat to the ease of the party 
 entitled to favor, and by which rights will be 
 secured and forfeitures avoided ; 1 Tex. 107 ; 
 Ang. Lim. c. VI. Fractions of a day arc not 
 regarded, unless it becomes necessary in a. 
 question of priority; 2 Story, 571; 4 Gilm, 
 (111.) 499 ; 8 Yes. 83 ; 3 Denio, 12 ; 6 Gray, 
 316 ; and then only in some cases, usually in 
 questions concerning private acts and transac- 
 tions ; 20 Vt. 653. 
 
 Exceptions to general rule. If, when the 
 right of action would otherwise accrue and 
 the statute begin to run, there is no person who 
 can exercise the right, the statute does not be- 
 gin to run till there is such a person ; 8 Cra. 
 84 ; for this would be contrary to the intent of 
 the various statutes. Thus, if a note matures 
 after the decease of the promisee, and prior to 
 the issue of letters of administration, the statute 
 runs from the date of the letters of adminis- 
 tration unless otherwise specified in the statute ; 
 5 B. & Aid. 204 ; 13 Wend. 267 ; 9 Leigh, 79 ; 
 7 H. & Johns. 14; 4 Whart. 130; 32 Vt. 
 176 ; 16 Conn. 145, 149 ; and there must be a 
 person in being to be sued, otherwise thestatute 
 will not begin to run; 12 Wheat. 129; 6 
 Harr. 299. 
 
 But the courts will not recognize exemp- 
 tions, where the statute has once begun to 
 run. So where the statute begins to run be- 
 fore the death of the testator or intestate, it 
 
LIMITATIONS 
 
 102 
 
 LIMITATIONS 
 
 is not interrupted by his death ; 4- M. & W. 
 43 ; 3 M. & C. 455 ; 4 Edw. Ch. 733 ; 3 Mc- 
 Lean, 568 ; nor by the death of the adminis- 
 trator; 17 Ala. N. s. 291; nor by his re- 
 moval from the state ; 15 Ala. N. s. 545. So 
 an insolvent's discharge as efi'ectually removes 
 him from pursuit by his creditor as absence 
 from the sTate ; but it is not an exception 
 •within the statute, and cannot avail ; 1 whart. 
 106 ; 1 Penn. 332 ; 1 Cow. 356 ; 6 Gray, 517. 
 A creditor's absence makes it inconvenient 
 for him to return and sue ; but as he can so 
 do, he must, or be barred ; 17 Ves. Ch. 87 ; 
 
 1 Wils. Ch. 134; 1 Johns. 165. And it has 
 ever been held that a statutory impediment to 
 the assertion of title will not help the party so 
 impeded ; 2 Wheat. 25 ; but when a state of 
 war exists between the governments of the 
 debtor and creditor, the running of the statute 
 is suspended; 22 Wall. 576; Chase, Dec. 
 286 ; 29 Ark. 238 ; 55 Ga. 274 ; 62 Mo. 140 ; 
 11 Bush, 191 ; 13 Wall. 158 ; and revives in 
 full force on the restoration of peace. 
 
 There are many authorities, however, to 
 show that if, by the interposition of courts, 
 the necessity of the case, or the provisions of 
 a statute, a person cannot be sued for a limited 
 time, the currency of the statute is suspended 
 during that period. In other words, if the 
 law interposes to prevent suit, it will see to it 
 that he who has a right of action shall not be 
 prejudiced thereby ; 4 Md. Ch. Dec. 368 ; 5 
 Ga. 66 ; 3 McLean, 568 ; 12 Wheat. 129 ; 
 
 2 Denio, 577 ; 20 How. 128. But see 21 
 Penn. 220. Thus, an injunction suspends 
 the statute; 1 Md. Ch. Dec. 182; 12 Gratt. 
 579; 2Stockt. 347; 10 Humphr. 365; 81 
 N. Y. 345; 13 La. An. 57; 106 Mass. 347. 
 And so does an assignment of an insolvent's 
 effects, as between the estate and the credit- 
 ors ; 7 Mete. 435 ; 7 Eich. (S. C.) 43 ; 12 La. 
 An. 216 ; though not, as has just been said, as 
 between the debtor and his creditor ; 6 Gray, 
 517. But when the statute does not in terms 
 exclude and limit a particular case, the court 
 will not extend it, although the case comes 
 within the reason of the statute ; 15 Ala. 1 94 ; 
 
 2 Curt. 480 ; 17 Ohio St. 548 ; 53 Penn. 382. 
 By the special provisions of the statute, 
 
 infants, married women, persons non compos 
 mentis, those imprisoned, and those beyond 
 seas, out of the state, out of the realm, or out 
 of the country, are regarded as affected by 
 the incapacity to sue, or, in other words, as 
 being under disability, and have, therefore, the 
 right of action secured to them until the ex- 
 piration of the time limited, after the removal 
 of the disability. These personal exceptions 
 have been strictly construed, and the party 
 alleging the disability has been very uniformly 
 held to bring himself exactly within the ex- 
 press words of the statute to entitle himself 
 to the benefit of the exception. To bring 
 himself within the spirit or supposed reason 
 of the exception is not enough ; 1 Cow. 356 ; 
 
 3 Green, N. J. 171 ; 2 Curt. C. C. 480; 17 
 Ves. Ch. 87; 4 Ben. 459. And this privi- 
 lege is accorded although the person laboring 
 
 under the statute disability might in fact 
 bring suit. Thus, an infant may sue before 
 he arrives at his majority, but he is not 
 obliged to, and his right is saved if he does 
 not; 2 Saund. 117. The disability must, 
 however, be continuous and identical. One 
 disability cannot be superadded to another so 
 as to prolong the time, and if the statute once 
 begins to run, whether before a disability ex- 
 ists or after it has been removed, no interven- 
 tion of another and subsequent disability can 
 stop it ; 29 Penn. 495 ; 15 B. Mon. 30 ; 54 
 111. 101 ; 2 McCord, 269. When, however, 
 there are two or more coexisting disabilities 
 at the time the right of action accrues, suit 
 reed not be brought till all are removed ; 
 Plowd. 375; 20 Mo. 530; 1 Atk. Ch. 610; 
 1 Shepl. 397 ; "3 Johns. Ch. 129. 
 
 "Beyond seas'" means, generally, without 
 the jurisdiction of the state or government in 
 which the question arises ; 1 Show. 91 ; 32 
 E. L. & Eq. 84; 3 Cra. 174; S Wheat. 
 341; 1 H. & M'H. 850; 14 Pet. 141 ; 2 
 MoCord, 331 ;13 N. H. 79; 24 Conn. 432; 
 52 N. H. 41 ; 6 Allen, 423. In Pennsylva- 
 nia, Missouri, Illinois, and Michigan,"how- 
 ever, and perhaps other states, contrary to 
 the very uniform current of authorities, be- 
 yond seas is held to mean out of the limits of 
 the United States ; 2 Dall. 217 ; 9 S. & K. 
 285 ; 14 Mo. 431 ; 20 id. 530 ; 2 Greene 
 (Iowa), 602 ; 24 111. 159. And the United 
 States courts adopt and follow the decisions 
 of the respective states upon the interpretation 
 oftheir respective laws; 11 Wheat. 361. What 
 constitutes absence out of the state within the 
 meaning of the statute, is wholly undetermin- 
 able by any rule to be drawn from the deci- 
 sions. It seems to be agreed that temporary 
 absence is not enough ; but what is a tempo- 
 rary absence is by no means agreed. Vide 
 Ang. Lim- § 200, n. 
 
 The word return, as applied to an absent 
 debtor, applies as well to foreigners, or resi- 
 dents out of the state coming to the state, as 
 to citizens of the state who have gone abroad 
 and have returned ; 3 Johns. 267; 11 Pick. 
 36; 3 R. I. 178. And in order to set the 
 statute in motion the return must be, open, 
 public, and such and under such circumstances 
 as will give a party, who exercises ordinary 
 diligence, an opportunity to bring his action ; 
 1 Pick. 263 ; 3 Gill & J. 158; 15 Vt. 727 ; 
 26 Barb. 208. Such a return, though tem- 
 porary, will be sufficient ; 8 Cra. 1 74. But 
 if the return is such and under such circum- 
 stances as to show that the party does not in- 
 tend that his creditor shall take advantage of 
 his presence, or such, in fact, that he cannot 
 without extraordinary vigilance avail himself 
 of '*>~if it is secret, concealed, or clandes- 
 tine, — it is insufficient. The absence of one 
 of several joint-plaintiffs does not prevent 
 the running of the statute; 4 Term, 516; 
 but the absence of one of several joint- 
 defendants does; 29 E. L. & Eq. 271. 
 This at least seems to be the settled law of 
 England ; but the cases in the several states 
 
LIMITATIONS 
 
 103 
 
 LIMITATIONS 
 
 of the Union are conflicting upon these points. 
 See 1 Dutch. 219; 18 N. Y. 567; 18 B. 
 Mon. 312 ; 4 Sneed, 99. The exception as 
 to being beyond seas does not apply to de- 
 fendants in Pennsylvania ; 1 Miles, 164. 
 
 Commencement of process. The question 
 sometimes arises as to what constitutes the 
 bringing an action or the commencement of 
 process, and this is very uniformly held to be 
 the delivery or transmission by mail in due 
 course of the writ or process to the sheriff, in 
 
 food faith, for service ; 14 Wend. 649 ; 15 
 lass. 859 ; 1 S. & R. 236 ; 20 Md. 479 ; 8 
 Greenl. (Mo.) 447 ; 1 W. Chip. 94. The 
 date of the writ is prima facie evidence of 
 the time of its issuance; 17 Pick. 407; 7 Me. 
 370; but is by no means conclusive ; 2 Burr. 
 950 ; 15 Mass. 364. 
 
 If the writ or process seasonably issued 
 fail.of a sufficient service or return by any 
 unavoidable accident, or by any default or 
 neglect of the officer to whom it is committed, 
 or is abated, or the action is otherwise avoided 
 by the death of any party thereto, or for aiiy 
 matter of form, or judgment for plaintiff be 
 arrested or reversed, the plaintiff may, either 
 by virtue of the statutory provision or by 
 reason of an implied exception to the general 
 rule, commence a new action within a reason- 
 able time ; and that reasonable time is usually 
 fixed by the statute at one year, and by the 
 courts in the absence of statutory provision at 
 the same period ; 1 Ld. Raym. 434 ; 2 Penn. 
 382; 1 Bailey (S. C), 542; 10 Wend. 278. 
 Irregularity of the mail is an inevitable acci- 
 dent within the meaning of the statute ; 8 
 Me. 447. And so is a failure of service by 
 reason of the removal of the defendant, with- 
 out the knowledge of the plaintiff, from the 
 county in which he had resided and to which 
 the writ was seasonably sent; 12 Mete. 15. But 
 a mistake of the attorney as to time of the 
 sitting of the court, and consequent failure to 
 enter, is not ; 29 Me. 458. An abatement by 
 the marriage of the female plaintiff is no 
 abatement within the statute ; it is rather a 
 voluntary abandonment ; 8 Cra. 84. And 
 so, generally, of any act of the party or his 
 attorney whereby the suit is abated or the ac- 
 tion fails ; 3 M'Cord, 452; 29 Me. 458; 1 
 Mich. 252; 6 Cush. 417. 
 
 A nonsuit is in some states held to be within 
 the equity of the statute; 13 Ired. 123; 4 
 Ohio St. 172; 12 La. An. 672; but gene- 
 rally otherwise; 1 S. & R. 236 ; 3 M'Cord, 
 452; 3 Harr. N. J. 269; 6 Cush. 417. If 
 there are two defendants, and by reason of a 
 failure of service upon one an alias writ 
 is taken out, this is no continuance, but a new 
 action, and the statute is a bar; 6 Watts, 
 628. So of amending bill introducing new 
 parties; 6 Pet. 61; 10 B. Mon. 84; 3 Me. 
 535. A dismissal of the action because of 
 the clerk's omission seasonably to enter it on 
 the docket is for matter of form, within the 
 Massachusetts statute, and a new suit may be 
 instituted within one year thereafter ; 7 Gray, 
 165 ; and so is a dismissal for want of juris- 
 
 diction, where the action is brought in the 
 wrong county ; 1 Gray, 580. In Maine, 
 however, a wrong venue is not a matter of 
 form; 38 Me. 217. The statute is a bar to 
 an action at law after a dismissal from chan- 
 cery for want of jurisdiction ; 1 Vern. 74 ; 
 16 Wend. 572 ; 2 Munf. 181. 
 
 Lex fori governs. Questions under the 
 statute are to be decided by the law of the 
 place where the action is brought, and not b^ 
 the law of the place where the contract is 
 made or the wrpng done. If the statute has 
 run against a claim in one state, the remedy 
 is gone, but the right is not extinguished ; and 
 flierefore the right may be enforced in another 
 state where the remedy is still open, the time 
 limited by the statute not having expired ; 
 15 East, 439; 11 Pick. 36, 522 ; 7 Md. 91 ; 
 23 How. 132; 13 Gray, 535; 13 Pet, 312. 
 So if the statute of the place of the contract 
 is still unexpired, yet an action brought in 
 another place is governed by the lex fori, 
 and may be barred ; I Caines, 402 ; 8 Dow, 
 P. C. 516 ; 5 CI. & F. 1. But statutes giving 
 title by adverse possession are to be distin- 
 guished from statutes of limitation. Adverse 
 possession gives title ; lapse of time bars the 
 remedy only. And a right acquired by 
 adverse possession in the place where the 
 adverse possession is had is good elsewhere ; 
 11 Wheat. 361; 5 Cranch, 358; 9 How. 
 407; Story, Confl. Laws, 582. 
 
 Public rights not affected. Statutes of 
 limitation do not on principles of public 
 policy run against the state or the United 
 States, unless it is expressly so provided in 
 the statute itself. No laches is to be imputed 
 to the government; 2 Mas. 312; 18 Johns. 
 228 ; 4 Mass. 528. But this principle has no 
 application when a party seeks his private 
 rights in the name of the state ; 4 Ga. 115 ; 
 but see 6 Penn. 290. Counties, towns, and 
 municipal bodies not possessed of the attri- 
 butes of sovereignty have no exemption ; 
 4 Dev. 568; 22 Me. 445; 12 111. 38; 13 
 Wall. 62 ; but see 8 Ohio, 298. If, however, 
 the sovereign becomes a party in a private 
 enterprise, as, for instance, a stockholder in a 
 bank, he subjects himself to the operation of 
 the statute ; 3 Pet. 30 ; 2 Brock. 393. 
 
 Particular classes of actions. Actions of 
 trespass, trespass quare clausum, detinue, 
 account, trover, replevin, and upon the case 
 (except actions for slander), and action of 
 debt for arrearages of rent, and of debt 
 grounded upon any lending or contract with- 
 out specialty, or simple contract debt, are 
 usually limited to six years. Actions for 
 slander, libel, assault, and the like, are 
 usually limited to a less time, generally two 
 years. Judgments of courts not of record, as 
 courts of justices of the peace, and county 
 commissioners' courts, are in some states, 
 either by statute or the decisions of the highest 
 courts, included in the category of debts 
 founded on contract without specialty, and 
 accordingly come within the statute ; 13 Mete. 
 251; 2 Bail. 58; 37 Me. 29; 2 Grant, Cas. 
 
LIMITATIONS 
 
 104 
 
 LIMITATIONS 
 
 853 ; 6 Barb. 683 ; 3 Living. 367. In others, 
 however, they are excluded upon the ground 
 that the statute applies only to debts founded 
 on contracts in fact, and not to debts founded 
 on contracts implied by law ; 14 Johns. 
 480. 
 
 Actions o{ assumpsit, though not specifically 
 named in the original statute of James I. as 
 included within the limitation of six years, 
 were held in England, after much discussion, 
 to be fairly embraced in actions of "tres- 
 pass ;" 4 Mod. 105 ; 4 B. & C. 44 ; 4 Ad, & 
 E. 912. The same rule has been adopted in 
 this country; 5 Ohio, 444; 3 Pet. 270; 1 
 Morr. Iowa, 59 ; 8 Cra. 98 ; but see 12 M. 
 & M. 141 ; and, in fact, assumpsit is ex- 
 pressly included in most of the statutes. And 
 it has also been held in this country that stat- 
 utes of limitation apply as well to motions 
 made under a statute as to actions; 11 
 Humphr. 423. Such statutes are in aid of 
 the common law, and furnish a general rule 
 for cases that are analogous in their subject- 
 matter, but for which a remedy unknown to 
 the common law has been provided by stat- 
 utes ; as where compensation is sought for land 
 taken for a railroad; 23 Penn. 371 ; 32 Conn. 
 621. 
 
 But it must be remembered that in all such 
 eases the debt is not discharged though the 
 right of action to enforce it may be gone. So, 
 where a creditor has a lien on goods for a 
 balance due, he may hold them, though the 
 statute has run against his debt ; 3 Esp. 81 ', 
 11 Conn. 160 ; 26 Me. 330 ; 28 HI. 44. And 
 an acceptor may retain funds to indemnify 
 him against his acceptances, though the accept- 
 ances may have been outstanding longer than 
 the time limited by statute ; 3 Campb. 418. 
 
 A set-off of a claim against which the 
 statute has run cannot usually be pleaded in 
 bar ; 5 East, 16 ; 3 Johns. 261 ; 8 Watts, 
 260; 5 Gratt. 360; 14 Penn. 531; though 
 when there are cross-demands accruing at 
 nearly the same time, and the plaintifi' has 
 saved the statute by suing out process, the 
 defendant will be allowed to set off his de- 
 mand ; 2 Esp. 569 ; 2 Green, N. J. L. 645 ; 
 and, generally, when there is any equitable 
 matter of defence in the nature of set-off, or 
 which might be the subject of a cross-action, 
 growing out of the subject-matter for which 
 the action is brought, courts will permit it to 
 be set up although a cross-action or an action 
 on the claim in set-off might be barred by the 
 statute ; 8 Rich. So. C. 113 ; 9 Ga. 398 ; 11 
 E. L. & Eq. 10 ; 8 B. Monr. 880 ; 3 Stockt. 
 44. 
 
 Debts hy specialty, as contracts under seal, 
 judgments of courts of record (except foreign 
 judgments, and judgments of courts out of 
 the state, upon which the decisions are very 
 discordant), liabilities imposed by statute, 
 awards under seal, or where the submission is 
 under seal, indentures reserving rent, and ac- 
 tions for legacies, are affected only by the 
 general limitation of twenty years; Angell, 
 Lim. § 77. A mortgage, though under seal, 
 
 does not take the note, not witnessed, secured 
 thereby, with it, out of the limitation of sim- 
 ple contracts ; 7 Wend. 94. And though lia- 
 bilities imposed by statute are specialties, a 
 liability under a by-law made by virtue of a 
 charter is not ; 6 E. L. & Eq. 309 ; on the 
 ground that by becoming a member of the 
 company enacting the by-laws the party con- 
 sents and agrees to assume the liabilities im- 
 posed thereby. 
 
 In Massachusetts, Vermont, and Maine, the 
 statute is regulated in its application to wit- 
 nessed promissory notes. In Massachusetts 
 an action brought by the payee of a witnessed 
 promissory note, his executor or administra- 
 tor, is excepted from the limitation of simple 
 contracts, and is only barred by the lapse of 
 twenty years. But the indorsee of such* a 
 note must sue within six years from the time 
 of the transfer to him ; 4 Pick. 384 ; though 
 he may sue after that time in the name of the 
 payee, with his consent ; 1 Gray, 261 ; 2 
 Curtis, C. C. 448. If there are two promis- 
 sees to the note, and the signature of only one 
 is witnessed, the note as to the other is not a 
 witnessed note ; 115 Mass. 699; 18 Shepl.49. 
 And the attestation of the witness must be 
 with the knowledge and consent of the maker 
 of the note ; 8 Pick. 246 ; 1 Williams, Vt. 26. 
 An attested indorsement signed by the pro- 
 missee, acknowledging the note to be due, is 
 not a witnessed note ; 23 Pick. 282 ; but the 
 same acknowledgment for value received, 
 with a promise to pay the note, is ; 1 Mete. 
 Mass. 21. If the note be payable to the 
 maker's own order, witnessed and indorsed 
 by the maker in blank, the indorsement being 
 without attestation, an action by the first in- 
 dorsee is barred in six years ; 4 Mete. Mass. 
 219. And even if the indorsement be at- 
 tested, a second indorsee or holder by de- 
 livery, not being the original payee, is barred ; 
 13 Mete. 128. 
 
 Statute bar avoided, when. Trusts in 
 general are not within the operation of the 
 statute, where they are direct and exclusively 
 within the jurisdiction of a court of equity^ 
 and the question arises between the trustees 
 and the cestui que trust; 7 Johns. Ch. 90; 1 
 Watts, 275; 28 Penn. 472; 1 Md. Ch. Dec. 
 53; 5 R. I. 79; 9 Pick. 212. And (rf this 
 character are the trusts of executors, adminis- 
 trators, guardians, assignees of insolvents, and 
 the like. The claim or title of such trustees 
 is that of the cestui que trust ; 2 Sch. & L. 
 607, 633; 4 Whart. 177; 71 Penn. 106; 1 
 Johns. Ch. 814 ; 4 Pick. 283. Special limi- 
 tations to actions at law are made in some 
 states in favor of executors and administra- 
 tors, modifying or abrogating the rule in 
 equity; and as these laws are made in the 
 interest of the trust funds, it is the duty of 
 the executor or administrator to plead the 
 special statute which applies to him as such 
 and protects the estate he represents, though 
 he is not bound to plead the general statute ; 
 IS Mass. 203 ; 3 N. H. 491 ; 15 id. 6 ; 15 S. 
 & R. 231 ; 2 Dess. 677 ; 4 Wash. 0. C. 688. 
 
LIMITATIONS 
 
 105 
 
 LIMITATIONS 
 
 If, however, the trustee deny the right of 
 his cestui que trust, and claim adversely to 
 him, and these facts come to the knowledge 
 of the cestui que trust, the statute will begm 
 to run from the time when the facts become 
 known; 9 Pick. 212; 10 Pet. 223; 3 Gill 
 & J. 389; 22 Md. 142; 62 Mo. 182; 11 
 Penn. 207. 
 
 Principal and agent. The relation of an 
 agent to his principal is a fiduciary one, and 
 the statute does not begin to run so long as 
 there is no breach of the trust or duty. When, 
 however, there is such a breach, and the 
 principal has knowledge of it, the statute 
 will begin to run; 3 Gill & J. 389; 5 Cra. 
 560; 4 Jones (N. C), 155; 12 Barb. 293; 
 32 Conn. 520. In many cases, a lawful de- 
 mand upon the agent to perform his duty, 
 and neglect or refusal to comply, are neces- 
 sary to constitute a breach. , As when money 
 is placed in the hands of an agent with which 
 to purchase property, and the agent neglects 
 to make the purchase, there must be a demand 
 for the money before the statute will begin to 
 run ; 5 Ired. 507 ; 6 Cow. 376 ; 24 Penn. 
 52 ; 48 id. 524 ; so where property is placed 
 in the hands of an agent to be sold, and he 
 neglects to sell ; 2 Gill & J. 389. If, how- 
 ever, the agent's conduct is such as to amount 
 to a declaration on his part that he will not 
 perform his duty, or if he has disabled himself 
 from performing it, it is tantamount to a 
 repudiation of the trust, or an adverse claim 
 against the cestui que trust, and the same 
 consequences follow. No demand is neces- 
 sary ; the right of action accrues at once upon 
 the declaration, and the statute then begins 
 to run ; 10 Gill «e. J. 422. 
 
 But where a demand is necessary, it should 
 itself be made within the limited time ; other- 
 wise an agent might be subject all his lifetime 
 to demands, however stale; 15 Wend. 302; 
 17 Mass. 145 ; 66 Penn. 192 ; see 10 Johns. 
 285 ; unless the agent, by his own act, pre- 
 vents a demand; 6 Cush. 501. The render- 
 ing an untrue account by a collection or other 
 agent would seem to be such a breach of duty 
 as to warrant an action without demand, and 
 would therefore set the statute in motion ; 1 7 
 Mass. 145. If the custom of trade or the 
 law makes it the clear duty of an agent to 
 pay over money collected without a demand, 
 then if the principal has notice the statute 
 begins to run from the time of collection ; 
 and when there is no such custom or law, if 
 the agent having funds collected gives notice 
 to his principal, the statute will begin to run 
 after the lapse of a reasonable time within 
 which to make the demand, though no de- 
 mand be made ; 4 Sandf. 590. 
 
 In equity, as has been seen, fraud prac- 
 tised upon the plaintiff so that the fact of his 
 tight to sue does not come to his knowledge 
 till after the expiration of the statute of limi- 
 tations, is held to open the case so that he 
 may bring his action within the time limited, 
 dating from the discovery of the fraud. But 
 herein the courts proceed with great caution, 
 
 and require not only a clear case of fraudu- 
 lent concealment, but the absence of negli- 
 gence on the part of the party seeking to 
 obviate the statute limitation by the replica- 
 tion of fraud; 7 How. 819; 12 Penn. 49; 
 1 Curt. C. C. 390; 5 Johns. Ch. 522; 2 
 Denio, 577; 11 Ohio, 194; 20 N. H. 187. 
 In some states, fraudulent concealment of the 
 cause of action is made by statute a cause of 
 exemption from its eS'ect in courts of law as 
 well as of equity. And the courts constnie 
 the saving clause with great strictness, and 
 hold that means of knowledge of the conceal- 
 ment are equivalent to knowledge in fact; 
 8 Allen, 130; 39 Me. 404. In the absence of 
 statutory provision, the admissibility of the 
 replication of fraud in courts of law has been 
 the subject of contradictory decisions in the 
 different states. In New York (20 Johns. 
 30), in Virginia (4 Leigh, 474), and in North 
 Carolina (3 Murph. 115), it is inadmissible. 
 But in the United States courts (1 McLean, 
 185), Pennsylvania (12 S. & R. 128), Indiana 
 (4 Black, 85), New Hampshire (8 Foster, 
 26), South Carolina (8 Rich. Eq. 130), it is 
 held to be admissible ; 5 Mas. 143 ; and this 
 is the rule generally prevalent in the United 
 States. 
 
 Running accounts. Such accounts as con- 
 cern the trade of merchandise between mer- 
 chant and merchant were by the original 
 statute of James I. exempted from its opera^ 
 tion. The earlier statutes of limitation in 
 this country contained the same exception. 
 But it has been very generally omitted in late 
 revised codes. Among the accounts excepted 
 from the operation of the statute all accounts 
 current were early held to be included ; 6 
 Term, 189; if they contained upon either 
 side any item upon which the right of action 
 accrued within six years, whether the accounts 
 were between merchant and merchant or other 
 persons. And this construction of the law, 
 based, as is said in some cases, upon the 
 ground that such accounts come within the 
 equity of the exception in respect to mer- 
 chants' accounts, and in others upon the 
 ground that every new item and credit in an 
 account given by one party to another is an 
 admission of there being some unsettled ac- 
 count between them, and, as an acknowledg- 
 ment, sufficient to take the case out of the 
 statute, has taken the form of legislative en- 
 actment in many states in this country, and, 
 in the absence of such enactment, has been 
 generally followed by the courts ; 20 Johns. 
 576 ; 6 Pick. 364 ; 6 Me. 308 ; 6 Conn. 246 ; 
 4 Rand. 488 ; 12 Pet. 300 ; 11 Gill & J. 212 ; 
 4 M'Cord, 215; 3 Harr. N. J. 266; 5 Cra. 
 15 ; 7 id. 350 ; 1 Md. 333 ; 25 Penn. 296 ; 
 SO Cal. 126. 
 
 But there must be a reciprocity of dealing 
 between the respective parties, and the ac- 
 counts must be such that there may be a fair 
 implication that it is understood that the 
 items of one account are to be a set-off so far 
 as they go against the items of the other 
 account ; 2 Sumn. 410 ; 40 Mo. 244 ; 2 Hals. 
 
LIMITATIONS 
 
 106 
 
 LIMITATIONS 
 
 357 ; 4 Cra. 696 ; 1 Edw. Ch. 417 ; 25 Penn. 
 296. Where the items of account are all on 
 one side, as between a shopkeeper and his 
 customer, or where goods are charged and 
 payments credited, there is no mutuality, and 
 the statute bars the account ; 4 M'Cord, 215 ; 
 1 Sandf. 220 ; 17 S. & R. 347 ; 18 Ala. 274. 
 And where, in the case of mutual account, 
 after a statement, the balance has been struck 
 and agreed upon, the statute at once applies 
 to such balance as a distinct demand ; 2 
 Saund. 125; 6 Me. 308; 1 Daveis, 294; 12 
 Pet. 300; 7 Cra. 147; unless it was made the 
 first item of a new mutual account ; 3 Pick. 
 96; 1 Mod. 270; 8 CI. & F. 121. 
 
 A closed account is not a stated account. 
 In order to constitute the latter, an account 
 must have been rendered by one party, and 
 expressly or impliedly assented to by the 
 other ; 8 Pick. 187 ; 6 Me. 308 ; 12 Pet. 300 ; 
 7 Cra. 147. Accounts between merchant and 
 merchant are exempted from the operation of 
 the statute, if current and mutual, although 
 no item appears on either side within six 
 years; 19 Ves. 180; 2 Saund. 124; 8 Bligh, 
 352; 6 Pick. 364; 5 Cra. 15; 13 Penn. 
 310; 1 Smith (Ind.), 217. A single trans- 
 action between two merchants is not within 
 the exception ; 1 7 Penn. 238 ; nor is an ac- 
 count between partners ; 3 S. I. 87 ; nor an 
 account between two joint-owners of a vessel ; 
 10 B. Monr. 112 ; nor an account for freight 
 under a charter-party, although both parties 
 are merchants; 6 Pet. 151. 
 
 New promise to pay debt barred. There 
 is another important class of exceptions, not 
 made by the statute, but by the courts, where- 
 in, although the statutory limitation may 
 have expired, parties bringing themselves 
 within the exception have always been allowed 
 to recover. In actions of assumpsit, a new 
 express promise to pay, or an acknowledg- 
 ment of existing indebtedness made under 
 such circumstances as to be equivalent to a 
 new promise and within six years before the 
 time of action brought, will take the case out 
 of the operation of the statute, although the 
 original cause of action accrued more than six 
 years before that time. And this proceeds 
 upon the ground that as the statutory limita- 
 tion merely bars the remedy and does not dis- 
 charge the debt, there is something more than 
 a merely moral obligation to support the prom- 
 ise, — to wit, a pre-existent debt, which is a 
 sufficient consideration for the new promise ; 
 2 Mas. 151 ; 8 Gill, 155 ; 19 111. 109 ; 26 Vt. 
 230 ; 9 S. & R. 128. The new promise upon 
 this sufficient consideration constitutes, in fact, 
 a new cause of action ; 4 East, 399 ; 6 Taunt. 
 210; 1 Pet. 351. 
 
 This was undoubtedly a liberal construction 
 of the statute ; but it was early adopted, and 
 has maintained itself, in the face of much ad- 
 verse criticism, to the present time. While, 
 however, at an early period there was an in- 
 clination of the courts to accept the slightest 
 and most ambiguous expressions as evidence 
 of a new promise, the spirit and tendency of 
 
 modern decisions are towards greater strict- 
 ness, and seem to be fairly expressed in the 
 learned judgment of Mr. Justice Story, in 
 the case of Bell v. Morrison, 1 Pet. 351. "It 
 has often been matter of regret, in modem 
 times, that, in the construction of the statute 
 of limitations, the decisions had not proceeded 
 upon principles better adapted to carry into 
 effect the real objects of the statute ; that, in- 
 stead of being viewed in an unfavorable light, 
 as an unjust and discreditable defence, it had 
 [not] received such support as would have 
 made it, what it was intended to be, emphati- 
 cally a statute of repose. It is a wise and 
 beneficial law, not designed merely to raise 
 a presumption of payment of a just debt from 
 lapse of time, but to afford security against 
 stale demands after the true state of the trans- 
 actions may have been forgotten, or be inca- 
 pable of explansition, by reason of the death 
 or removal of witnesses. It has a manifest 
 tendency to produce speedy settlement of ac- 
 counts, and to suppress those prejudices which 
 may rise up at a distance of time and bafile 
 every honest effort to counteract or overcome 
 them. Parol evidence may be offered of con- 
 fessions (a species of evidence which, it has 
 been often observed, it is hard to disprove and 
 easy to fabricate) applicable to such remote 
 times as may leave no means to trace the na- 
 ture, extent, or origin of the claim, and thus 
 open the way to the most oppressive charges. 
 If we proceed one step further, and admit, 
 that loose and general expressions, from which 
 a probable or possible inference may be de- 
 duced of the acknowledgment of a debt by a 
 court or jury, that, as the language of some 
 cases has been, any acknowledgment, however 
 slight, or any statement not amounting to a 
 denial of the debt, that any admission of the 
 existence of an unsettled account, without 
 any specification of amount or balance, and 
 however indeterminate and casual, are yet suf- 
 ficient to take the case out of the statute of 
 limitations, and let in evidence, aliunde, to 
 establish any debt, however large and at what- 
 ever distance of time ; it is easy to perceive 
 that the wholesome objects of the statute must 
 be in a great measure defeated, and the stat- 
 ute virtually repealed." . . . "If the 
 bar is sought to be removed by the proof of a 
 new promise, that promise, as a new cause of ac- 
 tion, ought to be proved in a clear and explicit 
 manner, and be in its terms unequivocal and de- 
 terminate ; and, if any conditions are annexed, 
 they ought to be shown to be performed." 
 
 And to the same general purport are the 
 following cases, although it is undeniable that 
 in the application of the rule there seems in 
 soine cases to be a looseness and liberality 
 which hardly comport with the rule. 32 Me. 
 260; 14 N. H. 422; 22 Vt. 179; 7 Hill, 
 N. Y. 45; 16 Penn. 210; 12 111. 146; 4 
 Fla. 481; 5 Ga. 486; 9 B. Monr. 614; 10 
 Ark. 134; 11 Ired. 445; 8 Gratt. 110; 20 
 Ala. N. 8. 687 ; 4 Zabr. 427 ; 14 N. H. 422; 
 12 111. 146 ; 4 Gray, 606 ; 33 Vt. 9 ; 6 Nev. 
 206 ; 54 Penn. 172 j 11 How. 493 ; 8 Fost. 26. 
 
LIMITATIONS 
 
 107 
 
 LIMITATIONS 
 
 A new provision to pay the principal only, 
 does not except the interest from the opera- 
 tion of the statute ; 29 Penn. 189. Nor does 
 an agreement to refer take the claim out of 
 the statute ; 1 Sneed, 464 ; nor the insertion, 
 by an insolvent debtor, of an outlawed claim 
 in a schedule of his creditors required by law ; 
 2 Miles, 424; 10 Penn. 129; 7 Gray, 274 
 (but this is not so in Louisiana ; 14 La, An. 
 612); 12 Mete. 470; nor an agreement not 
 to take advantage of the statute ; 29 Me. 47 ; 
 17 Penn. 232; 8 Md. 374; 9 Leigh, 381. 
 If such an agreement were valid, it might be 
 made part of the contract, and thus the ob- 
 ject of the law would be defeated ; 32 Me. 
 169. Nor will a devise of property to pay 
 debts exempt debts upon which the statute 
 has run prior to the testator's death ; 13 Ala. 
 611; 4Whart. 445; 4 Penn. 56; 13 Gratt. 
 329; 4 Sandf. 427. 
 
 Nor, in general, will any statement of a 
 debt, made officially, in pursuance of special 
 legal requirement, or with another purpose 
 than to recognize it as an existing debt ; 5 
 Me. 140; 12 E. L. & Eq. 191; 9 Cush. 
 S90 ; 30 Me. 425 ; 32 Ala. 134. Nor will a 
 deed of assignment made by the debtor for 
 the payment of certain debts, and of his 
 debts generally, and a partial payment by the 
 assignor to a creditor ; 1 B. I. 81 ; 6 E. 
 L. & Eq. 520 ; nor the entry of a debt in an 
 unsigned schedule of the debtor's liabilities, 
 made for his own use ; 30 Me. 425 ; nor an 
 undelivered mortgage to secure a debt against 
 which the statute has run, though duly exe- 
 cuted, acknowledged, and recorded ; 6 Cush. 
 151. But if the mortgage be delivered, it 
 will be a sufficient acknowledgment to exempt 
 the debt secured thereby from the operation 
 of the statute ; 4 Cush. 559 ; 18 Conn. 257 ; 
 14 Tex. 672. And so will the answer to a 
 bill in chancery which expressly sets forth the 
 existence of such a debt; 4 Sandf. 427 ; 3 
 GUI. 166. 
 
 If there is any thing said to repel the in- 
 ference of a promise, or inconsistent there- 
 with, the statute will not be avoided ; 1 Harr. 
 & J. 219 ; 23 Penn. 452 ; 6 Pet. 86 ; 2 Cra. 
 C. C. 120; 5 Blackf. 436; 11 La. An. 712; 
 14 Me. 300; 4 Mo. 100; 15 Wend. 137. 
 " The account is due, and I supposed it had 
 been paid, but did not know of its being ever 
 paid," is no new promise; 8 Cra. 72. If 
 the debtor admits that the debt is due, but 
 intimates his purpose to avail himself of the 
 bar of the statute, the acknowledgment is in- 
 sufficient ; 2 Dev. & B. 82 ; 2 Browne, 35 ; 
 29 Conn. 457. So if he says he will pay if 
 he owes, but denies that he owes ; 3 Me. 97 ; 
 2 Pick. 368. So if he states his inability to 
 pay; 22 Pick. 291 ; 13 N. H. 486. So if 
 he admits the claim to have been once due, 
 but claims that it is paid by an account against 
 the claimant; 3 Fairf. 72; 5 Conn. 480; 11 
 Conn. 160. "I am too unwell to settle now ; 
 when I am better, I will settle your account :" 
 held insufficient; 9 Leigh, 381. So of an 
 offer to pay a part in order to get the claim 
 
 out of the hands of the creditor ; 2 Bail. So, 
 C. 283 ; and of an admission that the account 
 is right ; 4 Dana, 505, 
 
 If the new promise is subject to conditions 
 or qualifications, is indefinite as to time or 
 amount, or as to the debt referred to, or in 
 any other way limited or contingent, the 
 plaintiff will be held to bring himself strictly 
 within the terms of the promise, and to show 
 that the condition has been performed, or the 
 contingency happened, and that he is not ex- 
 cluded by any limitation, qualification, or un- 
 certainty ; 11 Wheat. 309; 6 Pet. 86 ; 10 
 Allen, 438; 8 Mete. 432; 15 Johns. 511; 
 3 Bingh. 638 ; 3 Hare, 299. If the promise 
 be to pay when able, the ability must be 
 proved by the plaintifi'; 4 Esp. 36 ; 13 N. H. 
 486 ; 9 Penn. 410 ; 1 1 Barb. 264. But see 
 19 Vt. 308 ; 30 111. 429 ; 7 Hill, 45 ; 15 Ga. 
 395. So if it be to pay as soon as conve- 
 nient, the convenience must be proved ; 2 
 Cr. & M. ; or, " if E will say that I have had 
 the timber," the condition must be complied 
 with; 1 Pick. 370. 
 
 And if there be a promise to pay in specific 
 articles, the plaintiff must show that he offered 
 to accept them; 8 Johns. 318. The vote of 
 a town to appoint a committee to "settle the 
 dispute" was held to be a conditional promise, 
 requiring, to give it force as against the stat- 
 ute, proof that the committee reported some- 
 thingdue; 11 Mass. 452. If the original 
 promise be conditional, and the new promise 
 absolute, the latter will not alter the former ; 
 3 Wash. C. C. 404. But where the promise 
 by A, was to pay if the debtor could not 
 prove that B had paid it, it was held that the 
 onus was upon A to prove that B had paid it ; 
 11 Ired. 445. The offer must be accepted 
 altogether or rejected altogether. The liabil- 
 ity of the defendant is to l3e tried by the test 
 he has himself prescribed ; 4 Leigh, 603 ; 10 
 Johns. 35; 1 Gill & J. 497. 
 
 It must appear clearly that the promise is 
 made with reference to the particular demand 
 in suit ; 6 Pet. 86 ; 6 Ga. 21 ; 1 Kay, 650 ; 
 11 Ired. 86; though a, general admission 
 would seem to be sufficient, unless the defen- 
 dant show that there were other demands be- 
 tween the -parties ; 21 Pick. 21 23 ; 4 Gray, 
 606 ; 8 Gill, 82 ; 19 Penn. 888 ; 23 Conn. 
 453. If the admission be broad enough to 
 cover the debt in suit, according to some au- 
 thorities the plaintiff can prove the amount 
 really due aliunde. But the authorities are 
 not at one on this point ; 12 C. & P. 104 ; 6 
 N. H. 367; 19 Penn. 388; 22 Penn. 308; 22 
 Pick. 291 ; 27 Me. 433 ; 1 Pet, 351 ; 9 Leigh, 
 381 ; 2 P, & B. 390 : 23 Penn. 413. 
 
 Part payment of a debt is evidence of a 
 new promise to pay the remainder ; 2 DongL 
 552 ; 19 Vt. 28 ; 6 Barb. 583. It is, how- 
 ever, but prima facie evidence, and may be 
 rebutted by other evidence ; 28 Vt. 642; 27 
 Me. 370 ; 4 Mich. 508 ; L. R. 7 Q. B. 493 ; 
 13 Wall. 254; 53 N. Y, 442 ; 33 Miss. 41 ; 5 
 Ark. 638. Payment of the interest has the 
 same effect as payment of part of the principal ; 
 
LIMITATIONS 
 
 108 
 
 LIMITATIONS 
 
 8 Bingh. 309 ; 2 Tyrwh. 121 ; 7 Blackf. &37 ; 
 17 Cal. 574 ; 14 Pick. 387. And the giving 
 a note for part of a debt; 2 Mete. 168; or 
 for accrued interest, is payment; 13 Wend. 
 267 ; 6 Mete. 563 ; and so is the credit of in- 
 terest in an account stated; 6 Johns. 267; 
 and the delivery of goods on account ; 4 Ad. 
 &E. 71; 30 Me. 253; 11 How. 493. But 
 the payment of a dividend by the assignee of 
 an insolvent debtor is no new promise to pay 
 the remainder ; 7 Gray, 387 ; 6 E. L. & Eq. 
 620; and it has been held by respectable 
 authorities that new part payment is no new 
 promise, but that in order to take the case 
 out of the statute, the payment must be made 
 on account of a sum admitted to be due, ac- 
 companied with a promise to pay the re- 
 mainder ; 6 M. & W. 824 ; 6 E. L. & Eq. 
 620 ; 20 Miss. 663 ; 7 Gray, 274. 
 
 Part payment by a surety in the presence 
 of his principal, and without dissent, is pay- 
 ment by the principal ; 2 Post. 219 ; but part 
 payment by the surety after the statute has 
 barred the debt, is not a new promise to pay 
 the other part; 18 B. Monr. 643. A gene- 
 ral payment on account of a debt for which 
 several notes were given, without direction as 
 to the application of the payment, may be 
 applied by the creditor to either of the notes, 
 so as to take the note to which the payment 
 is applied out of the statute ; but the pay- 
 ment cannot be apportioned to the several 
 notes with the same effect ; 19 Vt. 26 ; 31 E. 
 L. & Eq. 65 ; 1 Gray, 630. With respect 
 to promissory notes and bonds, the general 
 proof of part payment or of interest, is the 
 indorsement thereon ; 2 Stra. 826 ; 1 Ad. & 
 E. 102 ; 9 Pick. 42 ; 42 Barb. 18 ; 17 Johns. 
 182. But it must be made bona Jide, and 
 with the privity of the debtor; 2 Campb. 
 321 ; 7 Wend. 408 ; 45 Mass. 678 ; 4 Leigh, 
 619. 
 
 The payment may be made to an agent, or 
 even a stranger not authorized to receive it, 
 but erroneously supposed to be authorized. 
 It is as much an admission of the debt as if 
 made to the principal himself; 1 Bingh. 480; 
 4 Tyrw. 94 ; 10 B. & C. 122. And so with 
 reference to acknowledgments or new prom- 
 ises ; 4 Pick. 110 ; 9 id. 488 ; 9 Wend. 293 ; 
 11 Me. 152; 21 Barb. 351 ; 36 Iowa, 676 ; 19 
 111. 189. And the weight of authority is in 
 favor of the rule that part payment of a wit- 
 nessed note or bond will avoid the statute ; 30 
 Me. 164; 9 B. Monr. 438; 12 Mo. 94; 18 
 Ark. 521. Whether ttie new promise or 
 payment, if made after the debt is barred by 
 the statute, will remove the bar, is also a 
 mooted point, the weight of authority per- 
 haps being in favor of the negative ; 14 Pick. 
 387; 10 Ala. n. 8. 969; 13 Miss. 564; 2 
 Comst. 523; 2 Kern. 635; 18 La. An. 353, 
 635; 14 Ark. 199. In Ohio it is so, by 
 statute; 17 Ohio, 9. For the affirmative, 
 see 18 Vt. 440 ; 20 Me. 176 ; 6 Ired. 341 ; 2 
 Tex. 501 ; 8 Hnmphr. 656 ; 47 Penn. 383 ; 
 9 Penn. 258 ; 6 Barb. 683. 
 
 It was long held that an acknowledgment 
 or part payment by one of several joint-C(Mih 
 tractors would take the claim out of the 
 statute as to the other joint-contractors ; 2 
 Dougl. 662 ; 2 H. Blackst. 340 ; and such is 
 the law in some parts of the Union ; 4 Pick. 
 382 ; 25 Vt. 390 ; 19 Conn. 37 ; 1 R. L 88 ; 
 3 Munf. 240; 1 M'Cord, 541 ; 7 Ired. 613; 
 30 Me. 810 ; 46 Miss. 367 ; 18 N. Y. 669. 
 But in the courts of the United States and 
 New Hampshire, South Carolina, Tennessee, 
 Indiana, Delaware, Pennsylvania, and some 
 other states, the contrary rule prevails; g 
 Cra. 721 ; 1 Pet. 351 ; 6 N. H. 124; 7 Yerg. 
 534; 1 M'MuUin, 297; 12 Md. 223; 17 8. 
 &R. 126; 41 Ala. 222. 
 
 Of course an acknowledgment or part pay» 
 ment made by an agent acting within the 
 scope of his authority is, upon the familiar 
 maxim, qui facit per alium facit per se, an 
 acknowledgment or part payment by the 
 principal ; and hence if a partner has been 
 appointed specially to settle the affairs of a 
 dissolved partnership, his acknowledgment or 
 part payment by virtue of his authority as 
 such agent will take the claim out of the 
 statute ; 6 Johns. 267 ; 1 Pet. 351 ; 20 Me. 
 347 ; 3 S. & K. 345. And the wife may be 
 such agent as to a claim for goods sold to her 
 during the absence of her busband ; 1 Camph. 
 394 ; 3 Bing. 119 ; but a wife during cover- 
 ture, not made specially or by implication of 
 law an agent, cannot make a new promise 
 effectual to take a claim to which she was a 
 party dum sola out of the statute ; 1 B. & C. 
 248; 24 Vt. 89; 12 E. L. & Eq. 398; not 
 even though the coverture be removed before 
 the expiration of six years after the alleged 
 promise ; 2 Penn. 490. 
 
 Nor is the husband an agent for the wife 
 for such a purpose ; 15 Vt. 471 ; but he is an 
 agent for the wife, payee of a note given t6 
 her dum sola, to whom a new promise or part 
 payment may be made ; 6 Q. B. 937. Boa 
 new promise to an executor or administrator 
 is sufficient; 8 Mass. 134; 17 Johns. 330; 
 7 Coms. 179; and the weight of authority 
 seems to be in favor of the binding force of a 
 promise or part payment made by an executor 
 or administrator; 12 Cnsh. 324; 12 B.Monr. 
 408 ; 9 Ala. 502; 17 Ga. 96 ; 9 E. L. & Eg. 
 80; 10 Md. 242; 4 B. Monr. 86; particular!^ 
 if the promise be express; 15 Johns. 8; 15 
 Me. 360 ; 36 N. J. L. 44. But there are 
 highly respectable authorities to the contrary ; 
 
 1 Whart. 71; 7 Ind. 442; 9 Md. 317; 14 
 Tex. 812; 36 Penn. 259; 11 Sm. &M. 9; 
 
 7 Conn. 172 ; see 12 Wheat. 565. 
 
 To put an end to all litigation in England 
 as to the effect of a new promise or acknowl- 
 edgment, it was enacted by stat. 9 Geo. IV. 
 c. 14, commonly known as Lord Tenderden's 
 Act, that the new promise or acknow,ledg» 
 ment by words only, in order to be effectual 
 to take a case out of the statute of limitations, 
 should be in writing, signed by the party 
 chargeable thereby ; and this statute has been 
 
LIMITATIONS 
 
 109 
 
 LIMITATIONS 
 
 substantially adopted by most, if not all, of 
 the states in this country. This statute affects 
 merely the mode of proof. The same effect 
 is to be given to the words reduced to writing 
 as would before the passage of the statute 
 have been given to them when proved by 
 oral testimony ; 7 Bingh. 163. If part pay- 
 ment is alleged, "words only," admitting 
 the fact of payment, though not in writing, 
 are admissible to strengthen the proof of the 
 fact of payment ; 2 Gale & D. 59. See Ang. 
 Lim. § 298 et seq. 
 
 Lord Tenderden's Act has been re-en- 
 acted substantially in Maine, Massachusetts, 
 Vermont, Virginia, and Wisconsin. In con- 
 struing these statutes it has been held that the 
 return, under citation, by an administrator of 
 the maker of a note, showing the note as one 
 of his intestate's debts, is, in writing, within 
 the meaning of this statute; 12 Sim. 17; 
 and so is the entry by an insolvent debtor of 
 the debt In his schedule of liabilities ; 1 2 
 Mete. 470. It was held in the last case that 
 the mere entry was not in itself a sufficient 
 acknowledgment, but being in writing, within 
 the meaning of the statute, it might be used 
 with other written evidence to prove a new 
 promise. But the making one note and ten- 
 dering it in payment of another is not a new 
 promise in writing ; 3 Cush. 355 ; not even 
 if the note be delivered, if it be re-deliTCred 
 to the maker for the purpose of restoring 
 matters between the parties to the state they 
 were in before the note was given ; 1 Mete. 
 894. 
 
 A and B had an unsettled account. In 
 1845, A signed the following : " It is agreed 
 that B, in his general account, shall give 
 credit to A for £10, for books delivered in 
 1834." Held, no acknowledgment in writ- 
 ing, so as to give B a right to an account 
 against A's estate more than six years before 
 A'a death ; 35 E. L. & Eq. 195. The writ- 
 ing must be signed by the party himself. 
 The signature of the husband's name by the 
 wife, though at his request, is not a signing by 
 the party to be charged ; 2 Bingh. N. C. 776. 
 Nor is the signature by a clerk sufficient ; 8 
 Scott, 147. Nor is a promise in the hand- 
 writing of the defendant sufficient ; it must be 
 signed by him; 12 Ad. & E. 493. And a 
 request by the defendant to the plaintiff' to 
 get certain moneys due the defendant from 
 third parties,, does not charge the party making 
 the request, because it is not apparent that 
 the defendant intended to render himself per- 
 sonally liable ; 8 Ad. & E. 221 ; 5 C. & P. 
 209. Since this statute, mutual accounts will 
 not be taken out of the operation of the statute 
 by any item on either side, unless the item be 
 the subject of a new promise in writing ; 
 2 Cro. M. & R. 45 ; 116 Mass. 529. The effect 
 of part payment is left by the statute as before ; 
 10 B. & C. 12,2. And the fact of part pay- 
 ment, it is now held, contrary to some earlier 
 oases, may be proved by unsigned written 
 evidence ; 4 E. L. & Eq. 614 ; or by oral 
 testimony ; 9 Mete. 482. 
 
 AS TO REAL PKOPEKTY AND EIGHTS. 
 
 The general if not universal limitation of 
 the right to bring action or to make entry, is 
 to twenty or twenty-one years after the right 
 to enter or to bring the action accrues, t. e, 
 to twenty or twenty-one years after the cause 
 of action accrues. As the rights and in- 
 terests of different parties in real -property 
 are various, and attach at different periods, 
 and successively, it follows that there may be 
 a right of entry in a particular person, accru- 
 ing after the expiration of antecedent' rights 
 at a period from the beginning of the adverse 
 possession, much exceeding twenty or twenty- 
 one years. 
 
 Thus, if an estate be limited to one in tail, 
 and the tenant in tail be barred of his 
 remedy by the statute, yet, as the statute only 
 affects the remedy, and the right or estate still 
 exists, the right of entry in the remainder- 
 man does not accrue until the failure of the 
 issue of the tenant in tail, which may not 
 happen for many years. The estate still ex- 
 isting in the tenant in tail or his issue supports 
 and keeps alive the remainder-man's right of 
 action till the expiration of twenty years af- 
 ter his right of entry accrues ; 1 Burr. 60 ; 3 
 Binn. 374 ; 1 Salk. 339 ; 5 Bro. P. C. 689 ; 
 Price, Lim. & Liens, 129 ; 15 Mass. 471. 
 
 The laches of the owner of a prior right 
 in an estate cannot prejudice the owner of a 
 subsequently accruing right in the same estate; 
 4 Johns. 390 ; 3 Cruise, Dig. 403 ; 2 Stark. 
 Ev. 887. And where there exist two distinct 
 rights of entry in the same person, he may 
 claim under either. He is not obliged to 
 enter under his earlier right ; 1 Pick. 318 ; 5 
 C. & P. 563 ; 29 Ga. 355 ; 2 Gill & J. 173. 
 
 Where it is necessary to prove that an 
 actual entry has been made upon the land 
 within a certain time before bringing suit, 
 such entry must be proved to have been made 
 upon the land in question ; 13 East, 489 ; 3 
 Me. 316 ; Doug. 477 ; 4 Cra. 367 ; 11 Gill& 
 J. 283 ; unless prevented by force or fraud, 
 when a bona fide attempt is equivalent ; 4 
 Johns. 389. If the land lie in two counties, 
 there must be an entry in each county ; though 
 if the land be all in one county an entry upon 
 part, with a declaration of claim to the whole, 
 is sufficient; Co. Litt. § 419 ; 3 Johns. Cas. 
 115. The intention to claim the land is es- 
 sential to the sufficiency of the entry ; and 
 whether this intention has existed is to be left 
 in each, case tothf#jury; 9 Watts, 567; 4 
 Wash. C. C. 367 ; 21 Ga. 113 ; 9 Watts, 28; 
 27 Ala. 364. An entry may be made by the 
 guardian for his ward, by the remainder-man 
 or reversioner for the tenant, and the tenant 
 for the reversioner or remainder-man, being 
 parties having privity of estate ; 9 Co. 106 ; 
 2 Penn. 180. So a cestui que trust may enter 
 for his trustee; 1 Ld. Raym. 716; and an 
 agent for his principal ; 11 Penn. 212; even 
 without original authority, if the act be 
 adopted/And ratified ; 9 Penn. 40. And the 
 entry of one joint-tenant, coparcener, or ten- 
 
LIMITATIONS 
 
 110 
 
 LIMITATIONS 
 
 ant in common will inure to the benefit of the 
 other ; 10 Watts, 296. 
 
 Adverse possession for the necfessary statu- 
 tory period gives title against the true owner; 
 but it must be open, unmterrupted, and with 
 intent to claim against the true owner. The 
 possession must be an actual occupation, so 
 open that the true owner ought to know it and 
 must be presumed to know it, and in such 
 manner and under such circumstances as 
 amount to an invasion of his rights, therebj' 
 giving him cause of action ; 11 (lill & J. 371 ; 
 6 Cow. 219 ; 2 Penn. 438 ; 9 Cush. 476 ; 13 
 Allen, 408; 5 Pet. 438; 4 Wheat. 230; 12 
 S. & R. 334 ; in Pennsylvania this rule has 
 been announced with special distinctness. "The 
 owner of land," says the supreme court in 1 
 Watts, 341, "can only be barred b)^ such 
 possession as has been actual, continued, 
 visible, notorious, distinct, and hostile or ad- 
 verse." 
 
 It must be open, so that the owner may 
 know it or might know of it. Many acts ot 
 occupation would be unequivocal, such as 
 fencing the land or erecting a house on it ; 7 
 Wheat. 59 ; 5 Pet. 402 ; actual improvement 
 and cultivation of the soil; 1 Johns. 156; 
 building on land and putting a fence around 
 it; 6 Pick. 172; digging stones and cutting 
 timber from time to time ; 14 East, 332 ; 6 
 S. & R. 21 ; driving piles into the soil covered 
 by a mill-pond, and thereon erecting a build- 
 ing ; 6 Mass. 229 ; cutting roads into a swamp, 
 and cutting trees and making shingles there- 
 from ; 1 Ired. 56; and setting fish-traps in a 
 non-navigable stream, building dams across it, 
 and using it every year during the entire fish- 
 ing-season for the purpose of catching fish ; 1 
 Ired. 535 ; but entering upon uninclosed flats, 
 when covered by the tide, and sailing over 
 them with a boat or vessel for the ordinary 
 purposes of navigation, is not an adverse pos- 
 session; 1 Cush. 395 ; though the filling up 
 the flats, and building a wharf there, and 
 using the same, would be if the use were ex- 
 clusive; 1 Cush. 313; 10 Bosw. 249; nor is 
 the entering upon a lot and marking its boun- 
 daries by splitting the trees ; 14 N. H. 101 ; 
 nor the getting rails and other timber for a few 
 weeks each year from timber-land ; 4 Jones, 
 295 ; nor the overflowing of land by the stop- 
 page of a stream ; 4 Dev. 158 ; nor the sur- 
 vey, allotment, and conveyance of a piece of 
 land, and the recording of the deed ; unless 
 there is open occupation ; 22 Me. 29. As a 
 rule the nature of the aSks necessary ,to consti- 
 tute adverse possession varies with the region 
 and character of the ground. If the latter is 
 uncultivated and the region sparsely populated, 
 much less unequivocal acts are necessary on 
 the part of the adverse holder. 
 
 It must be continuous for the whole period. 
 If one trespasser enters and leaves, and then 
 another trespasser, a stranger to the former 
 and without purchase from or respect to him, 
 enters, the possession is not continuous ; 2 S4 
 & R. 240; 34 Penn. 38; 17 How. 601 ; 4 
 Md. 143 ; 30 Mo. 99 ; 20 Pick. 465 ; 10 
 Johns. 475. But a slight connection of the 
 
 latter with the former trespasser, as by a pur- 
 chase by parol contract, will be sufiicient to 
 give the possession continuity ; 6 Penn. 355 ; 
 1 Meigs, 613 ; 31 Me. 583 ; 22 Ohio St. 42; 
 1 Term, 448. And so will a purchase at a 
 sale or execution; 5 Penn. 126; 24 How. 
 284. To give continuity to the possession 
 by successive occupants, there must be 
 privity of estate ; 5 Mete. Mass. 1 5 ; Anor. 
 Lim. § 414 ; and such a privity that each pos- 
 session may be referred to one and the same 
 entry : as that of a tenant to his landlord, or 
 of the heir of a disseisor to his ancestor ; 1 
 Rice, 10. 
 
 So an administrator's possession niay be 
 connected with that of his intestate; 11 
 Humphr. 457 ; and that of a tenant holding 
 under the ancestor, with that of the heir; 
 Cheeves, 200. In some states, however, it is 
 held that whether the possession be held uni- 
 formly under one title, or at difierent times 
 under different titles, can make no difference, 
 provided the claim of title is always adverse ; 
 as in Connecticut ; 3 Day, 269 ; and in Ken- 
 tucky ; 1 A. K. Marsh. 4. 
 
 The possession must be adverse. If it he 
 permissive ; 2 Jac. & W. 1 ; or by mistake ; 
 3 Watts, 280; or unintentional; 11 Ma^s. 
 296 ; or confessedly in subordination to an- 
 other's right ; 5 B. & Aid. 223 ; 9 Wheat. 
 241 ; 4 Wend. 558; 6 Penn. 210; 9 Mete. 
 418 ; 8 Shepl. 240 ; 10 B. & C. 866 ; 2 Ad. 
 & E. 520; 12 East, 141; it does not avail 
 to bar the statute. If the occupation is such 
 and by such a person that it may be for the 
 true owner, it will be presumed to be for him, 
 unless it be shown that the adverse claimant 
 gave notice that he held adversely and not in 
 subordination; 1 Batt. Ch. 373; 5 Burr. 
 2604. And this notice must be clear and un- 
 equivocal. If the act of the tenant or adverse 
 claimant may be a trespass as well as a dis- 
 seisin, the true owner may elect which he will 
 consider it, regardless of the wishes of the 
 trespasser, who cannot be allowed to qualify 
 his own wrong; 1 Burr. 60-107; 3 Pick. 
 575 ; 12 Mass. 325 ; 4 Mas. 329. 
 
 So that if the adverse claimant sets up his 
 trespasses as amounting to an adverse posses- 
 sion, the true owner may reply they are no 
 disseisin, but trespasses only ; while, on the 
 other hand, the true owner may elect, if he 
 please, for the sake of his remedy, to treat 
 them as a disseisin ; 19 Me. 383; 8 N. H. 67. 
 This is called a disseisin by election, in dis- 
 tinction from a disseisin in fact, — a distinction 
 which was taken for the benefit of the owner 
 of the land. Whenever the act done of itself 
 necessarily works an actual disseisin, it is a 
 disseisin in fact : as, when a tenant for years 
 or at wUl conveys in fee. On the other hand, 
 those acts which are susceptible of being 
 made a disseisin by election are no disseisin 
 till the election of the owner makes them so ; 
 1 Johns. Cas. 36. 
 
 The claim by adverse possession must have 
 some definite boundaries; 1 Mete. Mass. 528; 
 10 Johns. 447; 10 S. & R. 334; 4 Vt. 155; 
 3 H. & S. 13. There ought to be something 
 
LIMITATIONS 
 
 111 
 
 LIMITATIONS 
 
 to indicate to what extent the adverse posses- 
 sor claims. A sufficient inclosure will estab- 
 lish the limits, without actual continued resi- 
 dence on the land ; 3 S. & K. 291 ; 14 Johns. 
 405; 3 H. & M'H. 595; 10 Mass. 93; 4 
 Wheat. 213. But it must be an actual, visi- 
 ble, and substantial inclosure ; 7 N. H. 436 ; 
 2 Aik. 364; 4 Bibb, 455. An inclosure on 
 three sides, by a trespasser as against the real 
 owner, is not enough ; 8 Me. 239 ; 5 Md. 256 ; 
 nor is an unsubstantial brush fence; 10 N. H. 
 397 ; nor one formed by the lapping of fallen 
 trees ; 3 Mete. Mass. 125 ; 2 Johns. 230. And 
 where the claim is by possession only, with- 
 out any color or pretence of title, it cannot 
 extend beyond the actual limits of the inclo- 
 sure ; 3 H. & M'H. 621 ; 5 Conn. 305; 28 
 Vt. 142; 6 Ind. 273. And this must be 
 fixed, not roving from part to part; 11 Pet. 
 53. 
 
 Extension of the inclosure within the time 
 limited will not give title to the part included 
 in the extension ; 2 H. & J. 391 ; 8 111. 238. 
 
 Where, however, the claim rests upon color 
 of title as well as possession, the possession 
 will be regarded as coextensive with the 
 powers described in the title-deed ; 11 Pet. 
 41 ; 3 Mas. 330 ; 3 Ired. 578 ; 2 111. 181 ; 13 
 Johns. 406; 5 Dana, 232; 4 Mass. 416; 23 
 Cal. 431 ; unless the acts or declarations of 
 the occupant restrictlt. But the constructive 
 possession of land arising from color of title 
 cannot be extended to that part of it whereof 
 there is no actual adverse possession, whether 
 with or without a proper title ; 28 Penn. 124 ; 
 16 B. Monr. 472 ; 7 Watts, 442 ; nor will a 
 subsequent conflicting possession, whether 
 under color of title or not, be extended by 
 construction beyond the limits of the actual 
 adverse possession for the purpose of defeat- 
 ing a prior constructive possession ; 6 Cow. 
 677; 11 Vt. 521. Nor can there be any 
 constructive adverse possession against the 
 owner when there has been no actual posses- 
 sion which he could treat as a trespass and 
 bring suit for ; 3 Rich. 101. A trespasser who 
 afterwards obtains color of title can claim 
 constructively only for, the time when the title 
 was obtained; 16 Johns. 293. 
 
 This doctrine of constructive possession, 
 however, applies only to land taken possession 
 of for the ordinary purpose of cultivation and 
 use, and not to a case where a few acres are 
 taken possession of in an uncultivated town- 
 ship for the mere purpose of thereby gaining 
 title to the entire township ; 22 Vt. 388 ; 1 
 "Cow. 286 ; 6 B. Monr. 463 ; 14 Vt. 400. 
 
 In fine, with a little relaxation of strictness 
 in the case of wild, remote, and uncultivated 
 lands, the sort of possession necessary to 
 acquire title is adverse, open, public, and 
 notorious, and not clandestine and secret ; 
 possession, exclusive, uninterrupted, definite 
 as to boundaries, and fixed as to its locality. 
 
 Color of title is any thing in writing, how- 
 ever defective, connected with the title, which 
 serves to define the extent of the claim ; 2 
 Caines, 183 ; 21 How. 493 ; 30 111. 279 ; 34 
 
 Wise. 425; 16 N. H. 374; 19 Ga. 8; and 
 it may exist even without writing, if the facts 
 and circumstances show clearly the character 
 and extent of the claim ; 17 111. 498; Ang. 
 Lim. § 404, note. 
 
 A fraudulent deed, if accepted in good 
 faith, gives color of title ; 8 Pet. 244 ; so 
 does a defective deed ; 4 H. & M'H. 222 ; 6 
 Wise. 527; unless defective in defining the 
 limits of the land ; 1 Cow. 276 ; so does an 
 improperly executed deed, if the grantor be- 
 lieves {le has title thereby; 6 Mete. 337 ; so 
 does a sherifi''s deed; 7 B. Monr. 236; 22 
 Ga. 56 ; 7 Hill, 476 ; and a deed from a col- 
 lector of taxes; 4 Ired. 164; 24 111. 577; 
 unless defective on its face ; 29 Wise. 256 ; 
 and a deed from an attorney who has no au- 
 thority to convey ; 2 Murph. 14 ; 28 N. Y. 
 
 9 ; and a deed founded on a voidable decree 
 in chancery ; 1 Meigs, 207 ; and a deed, by 
 one tenant in common, of the whole estate, 
 to a third person ; 4 I). & B. 54 ; 2 Head, 
 674; and a deed by an infant; 4 I). & B. 
 289. 
 
 So possession, in good faith, under a void 
 grant from the state, gives color of title ; 4 
 Ga. 115. And if A purchases under an exe- 
 cution against B, takes a deed, and on the 
 same day conveys to B, though the purchase 
 and conveyance be at the request of B, and 
 no money is paid, B has a colorable title ; 4 
 I). & B. 201 ; 7 Humphr. 367. A will gives 
 color of title ; but if it has but one subscrib- 
 ing witness, and has never been proved, 
 it does not; 5 Ired. 711. Nor does the sale 
 by an administrator of the land of his solvent 
 intestate, under a license of the probate court, 
 unless accompanied by a deed from the ad- 
 ministrator; 34 N. H. 544; 13 Md. 105. 
 Nor does the sale of property by an intestate 
 to his son, of which the possession is held by 
 the wife, who is administratrix, while the son 
 lives in the family, as against the intestate's 
 creditors ; 30 Miss. 472. 
 
 If there is no written title, then the posses- 
 sion must be under a bond fide claim to a 
 title existing in another ; 3 Watts, 72. Thus, 
 if under an agreement for the sale of land the 
 consideration be paid and the purchaser enter, 
 he has color of title; 5 Mete. Mass. 173; 
 
 10 Fost. 531 ; 37 Miss. 138 ; 36 Ala. 308 ; 2 
 Strobh. 24; 12 Texi 195; 17 Ga. 600; 
 though if the consideration be not paid, or 
 be paid only in part, he has not ; 2 Bail. 
 59; 11 Ohio, 455; 20Ga. 311; 2 Dutch. 
 351 : because the /fair inference in such case 
 is that the purchaser is in by consent of the 
 grantor, and holds subordinately to him until 
 the payment of the full consideration. There 
 is, in fact, a mutual understanding, and a 
 mutual confidence, amounting to an implied 
 trust; 9 Wheat. 241 ; 12 Mass. 325 ; 1 Wash. 
 C. C. 207 ; 1 Spear, 291. 
 
 In New York, a parol gift of land is said 
 not to give color of title ; 1 Johns. Cas. 36 ; 
 but it is at least doubtful if that is the law of 
 New York; 6 Cow. 677; and in Massachu- 
 setts and other states, a parol gift is held to 
 
LIMITATIONS 
 
 112 
 
 LIMITATIONS 
 
 give color of title if accompanied by actual 
 entry and possession. It manifests, equally 
 ■with a sale, the intent of the donee to enter, 
 and not as tenant ; and it equally proves an 
 admission on the part of the donor that the 
 possession is so taken ; 6 Mete. 337 ; 13 
 Conn. 227 ; 2 B. Monr. 282 ; 39 Conn. 98 ; 
 4 Allen, 425 ; 32 N. J. 239 ; but see, contra, 
 24 Ga. 494. The element of good faith, and 
 the actual belief on the part of the claimant 
 that he has title, give the claimant by color 
 of title his advantage over the mere trespas- 
 ser, who, as -we have seen, is restrict'ed care- 
 fully to his actual occupation ; and it may be 
 said, generally, that whenever the facts and 
 circumstances show that one in possession, in 
 good faith and in the belief that he has title, 
 holds for himself and to the exclusion of all 
 others, his possession must be adverse, and 
 according to his assumed title, whatever may 
 be his relations in point of interest or priority, 
 toothers; 5 Pet. 440 ; 1 Paine, 467 ; 11 P«t. 
 41. When a man enters under suth a claim 
 of title, his entry on a part is an entry on the 
 whole ; but if he claims no such title he has 
 no seisin by his entry but by the ouster of 
 him who was seised, which can only be by 
 the actual and exclusive occupation of the 
 land; 4 Mass. 416. 
 
 In cases of mixed possession, or a posses- 
 sion at the same time by two or more persons, 
 each under a separate colorable title, the 
 seisin is in him who has the better or prior 
 title ; 4 Wheat. 213 ; 20 How. 236 ; 3 Wend. 
 149 ; for, though there may be a concurrent 
 possession, there cannot be a concurrent seisin ; 
 and, one only being seised, the possession 
 must be adjudged to be in him, because he 
 has the better right; 3 Mass. 219; 10 Mass. 
 161 ; 3 S. & R. 609 ; 1 D. & B. 6. Of 
 course, in such a case, if one has color of 
 title, and the other is a mere trespasser or 
 intruder, the possession is in him who has 
 color of title ; 2 Harr. & J. 112 ; 4 S. & R. 
 465 ; 5 Du. 272. 
 
 But, with all the liberality shown by the 
 courts in giving color of title, it has been de- 
 nied that a grant from a foreign government 
 confers it, on the ground that the possession 
 under such a title was rather a question be- 
 tween governments than individuals ; 3 H. & 
 McH. 621. Thus, the courts of New York 
 have refused to recognize claims under a grant 
 of the French government in Canada, made 
 prior to the treaty between Great Britain and 
 France in 1763; 4 Johns. 163; 12 id. 365; 
 as conferring color of title. But the sound- 
 ness of the exception has since been ques- 
 tioned in the same court ; 8 Cow. 689 ; and 
 the grant of another state has been expressly 
 held to give color of title in Pennsylvania, 
 even as against one claiming under her own 
 grant ; 2 Watts, 37. For political reasons, it 
 has been held that a grant from the Indians 
 jgives no color of title ; 8 Wheat. 671. 
 
 One joint-tenant, tenant in common, or 
 coparcener cannot dismiss another but by 
 actual ouster, as the seisin and possession of 
 
 one are the seisin and possession of all, and 
 inure to the benefit of all; 2 Salk. 422; 7 
 Wheat. 59; 12 Mete. 357; 11 Gratt. 505; 
 3 S. & R. 381 ; 4 Day, 473 ; 3 Grant, Cas. 
 247 ; actual ouster implies exclusion or expul- 
 sion. No force is necessary ; but there must 
 be a denial of the right of the co-tenant; 
 Cowp. 217; 5 Burr. 2604; 9 Cow. 530; 22 
 Tex. 663; 1 Me. 89; 12 Wend. 404; and, 
 like a grant, after long lapse of time it may be 
 presumed ; 1 East, 568 ; 3 Mete. 101 ; 29 
 Wise. 226 ; and inferred from acts of an 
 unequivocal character importing a denial; 
 3 Watts, 77 ; 1 Me. 89; 3 A. K. Marsh. 77; 
 but the possession of the grantee of one tenant 
 in common is adverse to all; 13 B. Monr. 
 436 ; 3 Mete. 101 ; 4 Paige, Ch. 178. 
 
 The possession of the tenant is likewise 
 the possession of his landlord, and caaa'^ be 
 adverse unless he distinctly renounce his land- 
 lord's title; 2 Campb. 11 ; 2 Binn. 468; 10 
 N. Y. 9 ; 3 Pet. 43 ; 6 Watts, 500. 
 
 Mere non-payment of rent during the time 
 limited, there having been no demand, does 
 not prejudice the landlord's right to enter 
 and demand it, even though the lease contdns 
 a clause giving the right of re-entry in case of 
 non-payment of rent; 5 Cow. 123; 7 East, 
 299 ; and payiuent of rent is conclusive evi- 
 dence that the occupation of the party paying 
 was permissive and net adverse ; 8 B. & C. 
 136; 12 L. J. N. s. Q. B. 236. The de- 
 fendant in execution after a sale is a quasi 
 tenant at will to the purchaser ; and his pos- 
 session is not therefore adverse ; 1 Johns. 
 Cas. 163 ; 3 Mass. 128. And a mere hold- 
 ing over after the expiration of a lease does 
 not change the character of the possession ; 
 2 Gill & J. 173. Nor does the assignment of 
 the lease, or a sub-letting. The assignee and 
 sub-lessees are still tenant-s, so far as the title 
 by adverse possession is concerned ; 4 S. & 
 R. 467 ; S Pet. 43 ; 6 Cow. 761. 
 
 If the tenant convey the premises, as we 
 have before seen, the landlord may treat the 
 grantee as a disseisor by election; but the 
 grantee cannot set up the act as the basis of a 
 title by adverse possession ; 6 Cow. 1 23 ; un- 
 less in the case where the relation of landlord 
 and tenant subsists by operation of law ; as 
 where one makes a grant and by the omission 
 of the word "heirs" an estate for life only 
 passes. In such case, after the death of the 
 tenant for life an adverse possession may com- 
 mence ; 7 Cow. 323. So in case the tenant 
 has attorned to a third person and the land- 
 lord has assented to the attornment ; 6 Cow. 
 133; 4 How. 289; 10 Sm. & M. 440; 
 4 Gilm. 336. But a mere parol disclaimer, 
 by_ the lessor, of the existence of the relation- 
 ship, and of all right in the premises, is not 
 equivalent to an attornment. To admit such 
 disclaimer would lead to fraud and perjury, 
 and is in direct violation of the principles of 
 the Statute of Frauds ; 7 Johns. 186 ; 16 id. 
 305; 6 Cow. 74; but see 13 S. &K. 133. 
 
 The possession of the mortgagor is not 
 adverse to the mortgagee (the relation being 
 
LIMITATIONS 
 
 113 
 
 LIMITATIONS 
 
 in many respects analogous to that of land- 
 lord and tenant) ; 3 Vet. 43 ; 4 Cra. 415 ; 
 11 Mass. 125; 30 Miss. 49; 27 Penn. 504; 
 Dougl. 275 ; not even if the possession be 
 under an absolute deed, if intended as a 
 mortgage ; 19 How. 289. The relation of 
 mortgagor and mortgagee is very peculiar and 
 sui generis. It is sometimes like a tenancy 
 for years ; Cro. Jac. 659 ; sometimes like a 
 tenancy at will ; Dougl. 275 ; and sometimes 
 like a tenancy at sufferance ; 1 Salk. 245 ; 
 but, whatever it may be like, it is always 
 presumed to be by permission of the mort- 
 gagor until the contrary be shown. The 
 assignee of the mortgagor, with notice, is in 
 the same predicament with the mortgagor ; 
 but if he purchase without notice, and particu- 
 larly if the mortgage be forfeited at the date 
 of his purchase ; his possession will be ad- 
 verse; 2 Car. L. It. 614; 19 Vt. 526; 6 B. 
 Mon. 479; 2 Sandf. 636; 34 Mo. 285; 32 
 Miss. 312; 19 How. 289. 
 
 But, although the possession of the mort- 
 gagor be not adverse so as to give title under 
 the statute against the mortgagee, the courts 
 have nevertheless practically abrogated this 
 rule, by holding that where the mortgagor 
 has held during the statutory limit, and has 
 meantime paid no interest nor otherwise 
 recognized the rights of the mortgagee, this 
 raises a presumption that the debt has been 
 paid, and is a good defence in an action to 
 foreclose; 12 Johns. 242; 9 Wheat. 497; 8 
 Mete. 87. And the reasons for so holding 
 seem to be equally cogent with those upon 
 which rests the well-settled rule that, with 
 certain exceptions, the mortgagee's possession 
 for the time limited bars the mortgagor's 
 right to redeem ; 2 J. & W. 434 ; 6 E. L. & 
 Eg. 355 ; 1 Johns. Ch. 385 ; 9 Wheat. 489 ; 
 3 Harr. & M'H. 328 ; 2 Sumn. 401 ; 13 Ala. 
 246 ; 20 Me. 269. 
 
 The exceptions to this rule are — -Jirst, where 
 an account has been settled within the limited 
 time ; 2 Vern. 377 ; 5 Bro. C. C. 187 ; 5 Johns. 
 Ch. 522; second, where within that time 
 the mortgagee, by words spoken or written, 
 or by deed, has clearly and unequivocally 
 recognized the fact that he held as mortgagee ; 
 2 Bro. 397 ; 1 Sim. & Stu. 347 ; 1 Johns. Ch. 
 594; 10 Wheat. 152; 3 Suran. 160; by 
 which recognition a subsequent purchaser, 
 with actual or constructive notice of the mort- 
 gage, is barred; 7 Paige, Ch. 465; third, 
 where no time is fixed by payment, as in the 
 case of a mortgage where the mortgagee is by 
 agreement to enter and hold till he is paid 
 out of the rents and profits; 1 Vt. 418; 
 fourth, where the mortgagor continues in pos- 
 session of the whole or any part of the prem- 
 ises ; Sel. Ca. in Ch. 55 ; 1 Johns. Ch. 594 ; 
 1 Neb. 342 ; and, Jifth, where there is fraud 
 on the part of the mortgagee, or at the time 
 of the inception of the mortgage he has taken 
 advantage of the necessities of the mortgagor ; 
 1 Johns. Cas. 402, 595; 2 Cruise, 161. 
 
 2'he trustee of real estate, under a direct 
 Vol. II.— 8 
 
 trust, as well as of personal, as we have seen, 
 holds for his cestui que trust, and the latter is 
 not barred of his right unless it be denied and 
 repudiated by the trustee ; in which case the 
 statute will begin to run from the denial or 
 repudiation ; 5 How. 233 ; 3 Gray, 1 ; 2 
 M'Lean, 376. In cases of implied construc- 
 tion and resulting trusts, the rule is also the 
 same as with reference to personal property. 
 The statute is a bar even in cases where the 
 conduct of the trustee was originally fraudu- 
 lent; 6 Johns. Ch. 184; 17 Ves. 161 ; 2 Bro. 
 C. C. 438. 
 
 The same general rules as regards persons 
 under disabilities apply in cases of real estate 
 as have already been described as applicable 
 to personalty at the time the right descends 
 or the cause of action accrues, and prevfent the 
 running of the statute, till their removal ; but 
 only such as exist at that time. When the 
 statute once begins to run, no subsequent dis- 
 ability can stop it ; 1 How. 37 ; 4 Mass. 182 ; 
 16 Johns. 513 ; 1 Wheat. 292 ; 2 Binn. 374 ; 
 and there is no distinction in this respect be- 
 tween voluntary and involuntary disabilities ; 
 4 Term, 301 ; 3 Brev. 286. The disability 
 of one joint-tenant,- tenant in common, or co- 
 parcener does not inure to the benefit of the 
 other tenants ; 8 Johns. 262, 265 ; 2 Taunt. 
 441 ; 10 Ohio, 11 ; 10 Ga. 218 ; 5 Humphr. 
 117 ; 4 Strobh. Eq. 167 ; 13 S. & R. 350. 
 
 It would be wholly impracticable here to 
 give a compend, or even an analysis, of the 
 different statutes of the several states. Nor, 
 indeed, would such an analysis be of much 
 service, as, from frequent revision, changes, 
 and modifications, what is the law to-day 
 might not be the law to-morrow, and it could 
 not be referred to, therefore, as a reliable 
 index of the actual state of the law in any 
 particular state. As, however, the statutes 
 of the several states are substantially and in 
 principle -the same, differing only in imma- 
 terial details, and as all are derived directly 
 or indirectly from the same source, it will 
 doubtless prove both convenient and useful to 
 be able to refer to the text of the original 
 &iglish statutes which have been the occasion 
 of so much comment. These are, accordingly, 
 appended, except Stat. 3 & 4 Will. IV. c. 27, 
 of which there is room only for a synopsis. 
 
 Statute 21 James I. c. 16. 
 For quieting of men's estates, and avoiding of 
 suits, be it enacted, etc., that all writs of forme- 
 don in descender, formedon in remainder, and 
 formedon in reverter, at any time hereafter to be 
 sued or brought, of or for any manors, lands, 
 tenements, or hereditaments, whereunto any per- 
 son or persons now hath or have any title, or 
 cause to have or pursue any such writ, shall be 
 sued or taken within twenty years next after the 
 end of this present session of parliament : and 
 after the said twenty years expired, no person or 
 persons, or any of their heirs, shall have or main- 
 tain any such writ, of or for any of the said manors, 
 lands, tenements, or hereditaments; (3) and 
 that all write of formedon in descender, forme- 
 don in remainder, formedon in reverter, of any 
 manors, lands, tenements, or other hereditaments 
 
LIMITATIONS 
 
 114 
 
 LIMITATIONS 
 
 whatsoever, at any time hereafter to be sued or 
 brought by occasion or means of any title or 
 cause hereafter happening, shall be sued or taken 
 within twenty years next after the title and cause 
 of action first descended or fallen, and at no time 
 after the said twenty years ; (3) and that no per- 
 son or persons that now hath any right or title 
 of entry into any manors, lands, tenements, or 
 hereditaments now held from him or them, shall 
 thereinto enterbut within twenty years next after 
 the end of this present session of parliament, or 
 within twenty years next after any other title of 
 entry accrued ; (4) and that no person or persons 
 shall at any time hereafter make any entry into 
 any lands, tenements, or hereditaments, but 
 within twenty years next after his or their right 
 or title, which shall hereafter first descend or ac- 
 crue to the same ; and in default thereof, such 
 persons so not entering, and their heirs, shall be 
 utterly excluded and disabled from such entry 
 after to be made, any former law or statute to 
 the contrary notwithstanding. 
 
 II. Provided, nevertheless. That if any person 
 or persons that is or shall be entitled to such 
 writ or writs, or that hath or shall have such 
 right or title of entry, be, or shall be, at the time 
 of the said rightor title first descended, accrued, 
 come or fallen within the age of one-and-twenty 
 years, feme covert, non compos mentis, impri- 
 soned, or beyond the seas, that then such person 
 and persons, and his and their heir and heirs, 
 shall or may, notwithstanding the said twenty 
 years be expired, bring his action or make his 
 entry as he might have done before this act : (3) 
 so as such person and persons, or his or their 
 heir and heirs, shall, within ten years next after 
 his and their full age, discovertnre, coming of 
 sound mind, enlargement out of prison, or com- 
 ing into this realm, or death, take benefit of and 
 sue forth the same, and at no time after the said 
 ten years. 
 
 III. And be it further enacted, That all ac- 
 tions of trespass quare clausum /regit, all actions 
 of trespass, detinue, action sur trover, and re- 
 plevin for taking away of goods and cattle, all 
 actions of account, and upon the case, other 
 than, such accounts as concern the trade of 
 merchandise between merchant and merchant, 
 their factors or servants, all actions of debt 
 grounded upon any lending or contract with- 
 out specialty, all actions of debt for arrear- 
 ages of rent, and all actions of assault, menace, 
 battery, wounding, and imprisonment, or any 
 of them, which shall be sued or brought at 
 any time after the end of this present session 
 of parliament, shall be commenced and sued 
 within the time and limitation hereafter ex- 
 pressed, and not after ; (that is to say,) (2) the 
 said actions upon the case (other than for slan- 
 der) , and the said actions for account, and the 
 said actions for trespass, debt, detinue, and re- 
 plevin for goods or cattle, and the said action of 
 trespass quare clausum /regit, within three yeaxB 
 next after the end of this present session of par- 
 liament, or within six years next after the cause 
 of such actions or suit, and not after ; (3) and 
 the said action of trespass, of assault, battery, 
 wounding, imprisonment, or any of them, within 
 one year next after the end of this present ses- 
 sion of parliament, or within four years next 
 after the cause of such actions or suit, and not 
 after ; (4J and the said action upon the case for 
 words, within one year, after the end of this 
 present session of parliament, or within two 
 years next after the words spoken, and not after. 
 
 IV. And, nevertheless, be it enacted. That if 
 in any the said actions qt suits, judgment be 
 given for the plaintifiT, and the same be reversed 
 by error, or a verdict pass for the plaintiff, and 
 
 upon matter alleged in arrest of judgment the 
 judgment be given against the plaintiff, that he 
 take nothing by his plaint, writ, or bill ; or if 
 any the said actions shall be brought by original 
 and the defendant therein be outlawed, and shall 
 aftel- reverse the outlawry, that in all such cases 
 the party plaintiff, his heirs, executors, or ad- 
 ministrators, as the case shall require, may com- 
 mence a new action or suit, from time to time, 
 within a year after such judgment reversed, or 
 such judgment be given against the plaintiff, or 
 outlawry reversed, and not after. 
 ' V. And be it further enacted. That in all ac- 
 tions of trespass quare clausum /regit, hereafter 
 to be brought, wherein the defendant or defend, 
 ants shall disclaim in his or their plea to make 
 any title or claim to the land in which the tres. 
 pass is by the declaration supposed to be done, 
 and the trespass be by negligence or involun- 
 tary, the defendant or defendants shall be ad- 
 mitted to plead a disclaimer, and that the tres- 
 pass was by negligence or involuntary, and a 
 tender or offer of sufficient amends for such tres- 
 pass before the action brought, whereupon, or 
 upon some of them, the plaintiff or plaintifis 
 shall be enforced to join issue; (2) and if the 
 said issue be found for the defendant or defend- 
 ants, or the plaintiff or plaintiffs shall be non- 
 suited, the plaintiff or plaintiffs shall be clearly 
 barred from the said action or actions, and all 
 other suits concerning the same. 
 
 VI. And be it further enacted by the authority 
 aforesaid. That in all actions upon the case for 
 slanderous words, to be sued or prosecuted by 
 any person or persons in any of the courts of 
 record at Westminster, or in any courts whatso- 
 ever that hath power to hold plea of the same, 
 after the end of this present session of parlia^ 
 ment, if the jury upon the trial of the issue in 
 such action, or the jury that shall inquire of the 
 damages, do find or assess the damages under 
 forty shillings, then the plaintiff or plaintiffs in 
 such action shall have and recover only so much 
 costs as the damages so given or assessed amount 
 unto, without any farther increase of the same, 
 any law, statute, custom, or usage to the con- 
 trary in any wise notwithstanding. 
 
 VII. Provided, nevertheless, and be it further 
 enacted. That if any person or persons that is or 
 shall be entitled to any such action of trespass, 
 detinue, action sur trover, replevin, actions of 
 account, actions of debt, actions of trespass for 
 assault, menace, battery, wounding, or imprison- 
 ment, actions upon the case for words, be, or 
 shall be, at the time of any such cause of action 
 given or accrued, fallen or come within the age 
 of twenty-one years, /erne covert, non compos 
 mentis, imprisoned or beyond the seas, that then 
 such person or persons shall be at liberty to 
 bring the same actions, so as they take the same 
 within such times as are before limited, after 
 their 'coming to or being of full age, discovert, of 
 sane memoijy, at large, and returaed from beyond 
 the seas, as other persons having no such impedi- 
 ment should have done. 
 
 Statute 9 Geo. IV. c. 14, Jcn^vm as Lord Tenter- 
 den's Act. Sect. 1. Whereas by an act passed in 
 England in the twenty-first year of the reign of 
 King James the First, it was among other things 
 enacted that all actions of account and upon the 
 case, other than such accounts as concern the 
 trade of merchandise between merchant and 
 merchant, their factors or servants, all actions 
 of debt grounded upon any lending or contract 
 without specialty, and all actions of debt for 
 arrearages of rent, should be commenced within 
 three years after the end of the then present ses- 
 sion of parliament, or within six years next after 
 the cause of such actions or suit, and not after ; 
 
LIMITATIONS 
 
 115 
 
 LIMITATIONS 
 
 and whereas a similar enactment is contained in 
 au act passed in Ireland in tlie tentii year of the 
 reign of King Charles the First ; and whereas 
 various questions have arisen in actions founded 
 on simple contract, as to the proof and effect of 
 acknowledgments and promises offered in evi- 
 dence for the purpose of taking cases out of the 
 operation of the said enactments, and it is expe- 
 dient to prevent such questions, and to make a 
 provision for giving effect to the said enactments 
 and to the intention thereof; Be it therefore en- 
 acted, etc., and by the authority of the same, 
 that in actions of debt, or upon the case, 
 grounded upou any simple contract, no acknowl- 
 edgment or promise by words only shall be 
 deemed sufficient evidence of a new or continu- 
 ing contract, whereby to take any ease out of the 
 operation of the said enactments, or either of 
 them, or to deprive any party of the benefit 
 thereof, unless such acknowledgment or promise 
 shall be made or contained by or in some writing, 
 to |be signed by the party chargeable thereby ; 
 and that where there shall be two or more joint- 
 contractors, or executors or administrations of 
 any contractor, no such joint-contractor, execu- 
 tor, or administrator shall lose the benefit of the 
 said enactments or either of them, so as to be 
 chargeable in respect or by reason only of any 
 written acknowledgment or promise made and 
 signed by any other or others of them: Provided, 
 always, that nothing herein contained shall alter 
 or take away or lessen the effect of any payment 
 of any principal or interest made by any person 
 whatsoever ; Provided also, that in actions to be 
 commenced against two or more such joint-con- 
 tractors, or executors or administrators, if it 
 shall appear at the trial or otherwise that the 
 plaintiff, though barred by either of the said 
 recited acts, or this act, as to one or more of 
 such joint-contractors or executors or adminis- 
 trators, shall, nevertheless, be entitled to recover 
 against any other or others of the defendants, 
 by virtue of a new acknowledgment, or promise 
 or otherwise, judgment may be given and costs 
 allowed for the plaintiff as to such defendant or 
 defendants against whom he shall recover, and 
 for the other defendant or defendants against the 
 plaintiff. 
 
 Sect. 2. If any defendant or defendants, in 
 any action on any simple contract, shall plead 
 any matter in abatement to the effect that any 
 other person or persons ought to be jointly sued 
 and issue be joined on such plea ; and it shall 
 appear at the trial that the action could not by 
 reason of the said recited acts, or of this act, or 
 of either of them, be maintained against the 
 other person or persons named in such plea, or 
 any of them, the issue joined on such plea shall 
 be found against the party pleading the same. 
 
 Sect. 3. No indorsement or memorandum of 
 any payment written or made after the time ap- 
 pointed for this act to take effect upon any prom- 
 issory note, bill of exchange, or other writing, 
 by or on the behalf of the party to whom such 
 payment shall be made, shall be deemed suffi- 
 cient proof of such payment, so as to take the 
 case out of the operation of either of the said 
 statutes. 
 
 Sect. i. That the said recited act, and this act, 
 shall be deemed and taken to apply to the case 
 of any debt on simplcj contract alleged by way 
 of set-off on the part of any defendant, either by 
 plea, notice, or otherwise. 
 
 Statute 3*4 Will. IV. e. 37. Section 1. The 
 time within which actions to recover realty, etc., 
 must be brought, is regulated by the statute 3 & 
 i Will. IV. c. 37. By the first section of the act 
 the meaning of the words in the act is defined ; 
 it enacts, inter atia, that the word "land" shall 
 
 extend to manors, messuages and all other corpor- 
 eal hereditaments whatsoever, and also to tithes 
 (other than tithes belonging to a spiritual or 
 eleemosynary corporation sole) , and also to any 
 share or interest in them, whether the same be a 
 freehold or chattel interest, and whether they be 
 of freehold, copyhold, or any other tenure ; and 
 that the word " rent " shall extend to all heriots, 
 services, and suits for which a distress may be 
 made, and to annuities charged upon land (ex- 
 cept moduses or compositions belonging to a 
 spiritual or eleemosynary corporation sole), and 
 that the word " person " shall extend to a body 
 politic, corporate, or collegiate, and to a class of 
 creditors or other persons, as well as to an indi- 
 vidual ; and that the singular number shall em- 
 brace the plural, and the masculine gender the 
 feminine. 
 
 Section 2 enacts that after the Slst day of De- 
 cember, 1833, no person shall make an entry or 
 distress, or bring an action to recover any land 
 or rent, but within twenty years next after the time 
 at which the right to make such entry or distress, 
 or to bring such action, shall have first accrued. 
 
 Sections 3, i, 5, 6, 7, 8, and 9, define the period 
 from which the statute begins to run (where a 
 party is not under disability), which may be 
 thus briefly stated: viz., where the claimant was, 
 in respect of the estate or interest claimed, him- 
 self once in possession or claims through a party 
 who was once in possession of the property or in 
 receipt of the rents or profits, the statute runs 
 from the time when he was dispossessed, or dis- 
 continued such possession or receipts. 
 
 Where the claimant claims on the death of one 
 who died in possession of the land or receipt of 
 the rents or profits thereof, the statute runs from 
 the time of the death, and this even in the case 
 of an administrator, by section 6, which see, 
 post. 
 
 Where the claimant derives his right under 
 any instrument (other than a will), the statute 
 runs from the time when under the instrument 
 he was entitled to the possession. 
 
 In the case of remainders or reversions, the 
 statute runs from the time when the remainder 
 or reversion becomes an estate in possession. 
 
 Where the claimant claims by reason of a for- 
 feiture or breach of condition, the statute runs 
 from the time of the forfeiture incurred or 
 breach of condition broken. 
 
 But section 4 provides that when any right to 
 make any entry or distress, or to bring any action 
 to recover any land or rent, by reason of any for- 
 feiture or breach of condition, shall have first 
 accrued in respect of any estate or interest in 
 reversion or remainder, and the land or rent 
 shall not have been recovered by virtue of such 
 right, the right to make an entry or distress, or 
 bring an action to recover such land or rent, shall 
 be deemed to have first accrued in respect of such 
 estate or interest at the time when the same shall 
 have become an estate or interest in possession, as 
 if no such forfeiture or breach of condition had 
 happened. 
 
 And by section 8 it is provided that a right to 
 make an entry or diEti<eES, or to bring an action 
 to recover any land or rent, shall be deemed to 
 have first accrued in respect of an estate or in- 
 terest in reversion at the time at which the same 
 shall have become an estate or interest in posses- 
 sion by the determination of any estate or estates 
 in respect of which such land shall have been 
 held, or the profits thereof, or such rent shall 
 have been received, notwithstanding the person 
 claiming such land, or some person through 
 whom he claims, shall, at any time previously to 
 the creation of the estate or estates which shall" 
 have determined, have been in possession or re- 
 
LIMITATIONS 
 
 116 
 
 LIMITATIONS 
 
 oeipt of the profits of such land, or In receipt 
 of Buch rent. 
 
 Section 6 enacts that, for ftw purpose of this 
 act, an admmiatrator claiming the estate or in- 
 terest of the deceased person of whose chattels 
 he shall be appointed administrator, ghcdl be 
 deemed to claim as if there had been no interval 
 of time between .the death of such deceased person 
 and the grant of letters of administration. 
 
 In case of a tenancy from year to year (with- 
 out lease In writing) , the statute runs from the 
 end of the first year or the last payment of rent 
 (which shall last happen). 
 
 In case of a lease in writing reserving more 
 than 20s. rent, if the rent be received by a party 
 wrongfully claiming the land, subject to the 
 lease, and no payment of the rent be afterwards 
 made to the party rightfully entitled, the statute 
 runs from the time when the rent was first so 
 received by the party wrongfully claiming ; and 
 the party rightfully entitled has no further right 
 on the determination of the lease. 
 
 In the case of a tenancy at will, the statute 
 runs from the determination of such tenancy, or 
 at the expiration of one year next after the com- 
 mencement of such tenancy, at which time the 
 tenancy at will shall be deemed to have determined. 
 But the clause provides that no mortgagor or 
 cestni que trust shall be deemed a tenant at will, 
 within the meaning of the act, to his mortgagee 
 or trustee. 
 
 Section 10 enacts that no person shall be 
 deemed to have been in possession of any land 
 within the meaning of this act merely by reason 
 of having made an entry thereon. 
 
 Section 11 enacts that no continual or other 
 claim upon or near any land shall preserve any 
 right of making an entry or distress, or of bring- 
 ing an action. 
 
 Section 12 enacts that when any one or more 
 of several persons entitled to any land or rent as 
 coparceners, joint-tenants, or tenants in common, 
 shall have been in possession or receipt of the 
 entirety, or more than his or their undivided 
 share or sliares of such land, or of the profits 
 thereof, or of such rent, for his or their own 
 benefit, or for the benefit of any person or per- 
 sons other than the person or persons entitled to 
 the other share or shares of the same land or 
 rent, such possession or receipt shall not be 
 deemed to have been the possession or receipt of 
 or by such last-mentioned person or persons, or 
 any of them. 
 
 Section li provides and enacts that when any 
 acknowledgment of the title of the person entitled 
 to any land or rent shall have been given to him 
 or his agent in writing signed by the person in 
 possession or in receipt of the profits of such land, 
 or in respect of such rent, then such possession or 
 receipt of or by the person by whom such ac- 
 knowledgment shall have been given, shall be 
 deemed, according to the meaning of this act, to 
 have beeti the possession or receipt of or by the per- 
 son to whom or to whose agent such acknowledg- 
 ment shall have been given at the time of giving 
 the same, and the right of such last-mentioned 
 person, or any person claiming through him, to 
 make an entry or distress, or bring an action to 
 recover such land or rent, shall be deemed to have 
 first accrued at, and not before, the time at which 
 such acknowledgment, or the last of such ac- 
 knowledgments, if more than one, was given. 
 
 Section IS gives a party claiming land or rent, 
 of which he had been out of possession more 
 than twenty years, five years from the time of 
 passingthe act within which to enforce his claim, 
 vfhere the possession was not adverse to his right 
 or title at the time of passing the act. 
 
 By section 16, persons under disability of In- 
 
 fancy, lunacy, coverture, or beyond seas, and 
 their representatives, are to be allowed ten years 
 from the termination of their disability or death 
 to enforce their rights. 
 
 But by section 17, even though a person be 
 under disability when his claim first accrues, he 
 must enforce it within forty years, even though 
 the disability continue during the whole of the 
 forty years. 
 
 And by section 18 no further time is to be 
 allowed for a succession of disabilities. 
 
 By section 20, when the right of any person to 
 recover any land or rent to which he may have 
 been entitled, or an estate or interest in posses- 
 sion, shall have been barred by time, any right in 
 reversion, or otherwise, which such person may 
 during that time have had to the same land or 
 rent, shall also be barred, unless in the mean 
 time the land or rent shall have been recovered 
 by some person entitled to an estate which shall 
 have taken effect after or in defeasance of such 
 estate or interest in possession. 
 
 Section 22 enacts that when any tenant in tail 
 shall have died before the bar as against him is 
 complete, no person claiming an estate or interest, 
 etc., which such tenant in tail might have barred, 
 shall enforce his claim but within the period 
 which the tenantln tail, had he lived, might have 
 recovered. 
 
 Section 24 enacts that no suit ]n equity shall 
 be brought after the time when the plaintiff, if 
 entitled at law, might have brought an action. 
 
 Section 25 enacts that in cases of express trust 
 the right of the cestui que trust, or any person 
 claiming through him, shall be deemed to have 
 first accrued at the time when the land or rent 
 may have been conveyed to a purchaser for a 
 valuable consideration, and shall then be deemed 
 to have accrued only against such purchaser, or 
 any person claiming through him. 
 
 Section 36 enacts that in case of fraud the right 
 shall be deemed to have first accrued at the time 
 when such fraud shall be, or with reasonable 
 diligence might have been; discovered, but that 
 nothing in that clause shall affect a bona fide 
 purchaser for value, not assisting in, and, at the 
 time he purchased, not knowing, and having no 
 reason to believe, such fraud had been committed 
 
 Section 27 provides that the act shall not pre- 
 vent the courts of equity refusing relief on the 
 ground of acquiescence, or otherwise, to any 
 person whose right to bring a suit may not be 
 barred by the acti 
 
 Section 28 enacts that a mortgagor shall be 
 barred by twenty years' possession of the mort- 
 gagee, unless there be an acknowledgment in 
 writing. 
 
 Section 29 enacts that no land or rent shall be 
 recovered by an ecclesiastical or eleemosynary 
 corporation sole, but within the period during 
 which two persons in succession shall have held 
 the benefice, etc. in respect whereof such land or 
 rent is claimed, and six years after a third person 
 shall have been appointed thereto, if such two 
 incumbencies and six years taken together shall 
 amount to the full period of sixty years, but if 
 they do not amount to sixty years, then during 
 such further time in addition to the two incum- 
 bencies and six years as will make up the sixty 
 years. 
 
 Section 35 enacts that the receipt of the rent 
 payable by any tenant from year to year, or other 
 lessee, shall, as against such lessee or any person 
 claiming under him (but subject to the lease), 
 be deemed to be the receipt of the profits of the 
 land for the purposes of this act. 
 
 Section 40 enacts that money secured by mort- 
 gage, judgment, or lien, or otherwise, charged up- 
 on or payable out of any land or rent at law or in 
 
LIMITATIONS 
 
 117 
 
 LINE 
 
 equity, or any legacy, sball not be recovered but 
 within twenty years next after a present right 
 shall have accrued to some person capable of 
 giving a discharge for or releasing the same, un- 
 less there have been part payment in the mean- 
 time of principal or interest, or an acknowledg- 
 ment in writing have been given, signed by the 
 person by whom the same shall be payable, or 
 his agent, to the person entitled thereto, or his 
 agent, in which case the time runs from such 
 payment or acknowledgment, or the last of them. 
 If more than one. 
 
 Section 41 enacts that no arrears of dower, or 
 any damages on account of such arrears shall be 
 recovered but within six years before commence- 
 ment of action or suit. 
 
 Section 42 enacts that no arrears of rent, or of 
 Interest in respect of any money charged upon 
 any land or rent, or in respect of any legacy, or 
 any damages in respect of atooh arrears of rent 
 or interest, shall be recovered but within six 
 years next after the same became due, or next 
 after an acknowledgement of the same in writing 
 shall have been given to the person entitled 
 thereto, or his agent, signed by the person by 
 whom the same .was payable, or his agent, except 
 where any prior mortgagee or incumbrancer 
 shall have been in possession of the land mort- 
 gaged, or profits thereof, within one year next 
 before any action or suit by a subsequent mort- 
 gagee or incumbrancer of the same land ; in 
 which case such subsequent mortgagee or in- 
 cumbrancer may in such action or suit recover 
 all arrears of interest which shall have become 
 due during the time that the prior mortgagee or 
 Incumbrancer was in possession of the land or 
 profits thereof. 
 
 Of Criminal Proceedings. The time 
 within which indictments may be found, or 
 other proceedings commenced, for crimes and 
 offences, varies considerably in the different 
 jurisdictions. In general, in all jurisdictions, 
 the length of time is extended in some propor- 
 tion to the gravity of the offence. Indict- 
 ments for murder, in most, if not all, of the 
 states, may be found at any time during the 
 life of the criminal after the death of the 
 victim. Proceedings for less offences are to 
 be commenced within periods varying from 
 ten years to sixty days. See Whart. Cr. PI. 
 & Pr. §§ 316-329. 
 
 Of Estates. A description either by ex- 
 press words or by intendment of law of the 
 continuance of time for which the property is 
 to be enjoyed, marking the period at which 
 the time of enjoyment is to end ; Prest. Est. 
 25. 
 
 The definition or circumscription, in any 
 conveyance, of the interest which the grantee 
 is intended to take. The term is used by 
 different writers in different senses. Thus, 
 it is used by Lord Coke to denote the express 
 definition of an estate by the words of its 
 creation, so that it cannot endure for any 
 longer time than till the contingency happens 
 upon which the estate is to fail; Co. Litt. 
 23 b. In the work of Mr. Sanders on Uses, 
 the term is used, however, in a broader and 
 more general sense, as given in the second 
 definition above; 1 Sanders, Uses, 68-122. 
 And, indeed, the same writers do not always 
 confine themselves to one use of the term ; 
 see Fearne, Cont. Eem. Butler's note n, 9tli 
 
 ed. 10; 1 Steph. Com. 5th ed. 304, note. 
 For the distinctions between limitations and 
 remainders, see Conditional Limita- 
 tion; Contingent Remainder. 
 
 Consult, generally, Angell, Ballantine, 
 Banning, Blanshard, Gibbons, Darby and 
 Bonsanquet, Price, Wilkinson, on Limita- 
 tions ; Flintoff, Washburn, on Keal Property ; 
 Barbour, Bishop, Wharton, on Criminal Law. 
 
 LIMITED COMPANY. A company 
 in which the liability of each shareholder is 
 limited by the number of shares he has taken, 
 so that he cannot be called on to contribute 
 beyond the amount of his shares. In Eng- 
 land, the memorandum of association of such 
 company may provide that the liability of the 
 directors, manager, or managing director, 
 thereof, shall be unlimited; 30 & 31 Vict. c. 
 131; 1 Lindl. Part. 383; Mozley & W. 
 Diet. 
 
 LIMITED PARTNERSHIP. A form 
 of partnership created by statute in many of 
 the United States, wherein the liability of cer- 
 tain special partners, who contribute a specific 
 amount of capital, is limited to the amount 
 so contributed, while the general partners are 
 jointly and severally responsible as in ordi- 
 nary partnership. All the partners are liable 
 as general partners, unless the statutes upon 
 the subject are strictly, or as some cases say, 
 substantially complied with; 5 Allen, 91 ; 39 
 Barb. 283 ; 3 Col. 342 ; 67 Penn. 330 ; 62 
 N. Y. 513 ; see 1 Lindley, Partn. 383, n. 
 
 LxbTE. In Descents. The series of per- 
 sons who have descended from a common an- 
 cestor, placed one under the other, in the 
 order of their birth. It connects successively 
 all the relations by blood to each other. See 
 Consanguinity; Degkee. 
 
 o 6. Trltavns, Tritavia. 
 (L 5. Atavus, Atavia. 
 o4> Abavns, Abavla. 
 
 I Qreat-grandfa- 
 ther, great- 
 grandmother. 
 Grandfather, 
 Grandmother. 
 
 ^ Father, Mother. 
 
 3. Proavua, Proavia. 
 
 6 2. Atu9, Aria, 
 o 1. Pater, Mater, 
 
 . Ego. o Ego- 
 
 a I 
 
 '■^ I Son. A 1. Pilins. 
 
 Grandson. 1 2. Kepos, Kepti. 
 
 I Great-grandson. 1 3. Pronepos, Froneptis. 
 T 4. Abnepos, Abneptis. 
 L5. Adnepos, Adnepti. 
 [ 6. Trinepos, Trincptia. 
 
 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 as the 
 propositus, in order to count from him up- 
 wards and downwards, the line will be divided 
 into two parts, the ascending and descending 
 lines. The ascending line is that which, count- 
 ing from the propositus, ascends to his ances- 
 tors, to his father, grandfather, great-grand- 
 father, etc. The descending line is that 
 which, counting from the same person, de- 
 
LINE 
 
 118 
 
 LIQUIDATED DAMAGES 
 
 scends to his children, grandchildren, great- 
 grandchildren, etc. The preceding table is 
 an example. 
 
 The collateral line, considered by itself and 
 in relation to the common ancestor, is a di- 
 rect line ; it becomes collateral when placed 
 alongside of another line below the common 
 ancestor, in whom both lines unite. For ex- 
 ample : — 
 
 Common Q ancestor. 
 
 Direct 
 line. 
 
 Collateral 
 line. 
 
 O o 
 
 Ego. 
 
 These two lines are independent of each 
 other; they have no connection except by 
 their union in the person of the common an- 
 cestor. This reunion is what forms the rela- 
 tion among the persons composing the two 
 lines, 
 
 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 pa- 
 ternal grandfather, his paternal great-grand- 
 father, etc., so on from father to father; this 
 is called tlie paternal line. Another line will 
 be found to ascend from the same peraon to 
 his mother, his maternal grandmothe* and 
 so from mother to mother : this is the mater- 
 nal line. These lines, however, do not take 
 in all the ascendants ; there are many others 
 who must be imagined. The number of as- 
 cendants is double at each degree, as is shown 
 by the following diagram : — 
 
 See 2 Bla. Com. 200, b. ; Pothier, Des Suc- 
 cessions, c. 1, art. 8, § 2 ; Ascendants. 
 
 Estates. The division between two estates. 
 Limit ; border ; boundary. 
 
 When a line is mentioned in a deed as end- 
 ing at a particular monument (q. v.), it is to 
 be extended in the direction called for, with- 
 out regard to distance, until it reach the 
 boundary; 1 Tayl. 110, 303; 2 id. 1; 2 
 Hawks, '219; 3 id. 21. And a marked line 
 is to be adhered to although it depart from 
 the course ; 7 Wheat. 7 ; 2 Ov. 304 ; 3 Call. 
 239 ; 4 T. B. Monr. 29 ; 7 id. 333 ; 2 Bibb. 
 261; 4 id. 503. See, further, 2 Dan. 2; 6 
 Wend. 467 ; 3 Murph. -82 ; 13 Pick. 145 ; 13 
 Wend. 300 ; 5 J. J. Marsh. 587. 
 , Where a number of persons settle simul- 
 taneously 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 consenlible lines. These lines, when 
 fairly agreed upon, have been sanctioned by 
 the courts ; and such agreements are conclu- 
 sive upon all persons claiming under the par- 
 ties to them, with notice, but not upon bond 
 fide purchasers for a valuable consideration, 
 without notice, actual or constructive ; 3 S. 
 & R. 323 ; 5 id. 273; 17 id. 57; 9 W. & 
 S. 66. 
 
 Lines fixed by compact between nations are 
 binding on their citizens and subjects ; 1 1 Pet. 
 209 ; 1 Ov. 269 ; 1 Ves. Sen. 450 ; 1 Atk. 2 ; 
 2 id. 592 ; 1 Ch. Cas. 85 ; IP. Wms. 723- 
 727 ; 1 Vern. 48^ 1 Ves. 19 ; 2 id. 284 ; 3 
 S. & K. 331. 9 
 
 Measures. A line is a lineal measure, 
 containing the one-twelfth part of an inch. 
 
 LINBA RECTA- (Lat.). The perpen- 
 dicular line ; the direct line. The line of 
 ascent, through father, grandfather, etc., and 
 of descent, through son, grandson, etc. ; Co. 
 Litt. 10, 158; Bracton, fol. 67; Fleta, lib>6, 
 c. 1, § 11. This is represented in a diagram 
 by a vertical line. 
 
 Where a person springs from another im- 
 mediately, or mediately through a third per- 
 son, they are said to be in the direct line 
 {linea recta), and are called ascendants and 
 descendants. Mackeldey, Civ. Law, § 129. 
 
 LINEA TRANSVERSALIS (Lat.). 
 A line crossing the perpendicular lines. 
 Where two persons are descended from a 
 third, they are called collaterals, and are said 
 to be related in the collateral line (linea trani- 
 versa or olliqua). 
 
 LINEAL. In a direct line. 
 
 LINEAL WARRANTY. A warranty 
 by an ancestor from whom the title did or 
 might have come to the heir. 2 Bla. Com. 
 301 ; Rawle, Cov. 30 ; 2 Hill. E. P. 360. 
 Thus, a warrant by an elder son during life- 
 time of his father was lineal to a younger 
 son, but a warranty by a younger son was col- 
 lateral to the elder ; for, though the younger 
 might take the paternsJ estate through the 
 elder, the elder could not take it through the 
 younger ; Litt. 8 703. Abolished in England 
 by Stat. 3 & 4 Will. IV. c. 74, § 14. 
 
 LINES AND CORNERS. In deeds 
 and surveys. Boundary-lines and their an- 
 gles with each other. 17 Miss. 459 ; 21 Ala. 
 66; 9 Post. & H. 471 : 10 Gratt. 445; 16 
 Ga. 141. 
 
 LIQUIDATE. To pay; to settle. Web- 
 ster. Diet. ; 8 Wheat. 322. Liquidated dam- 
 ages are damages ascertained or agreed upon. 
 Sedgw. Dam. 427 et seq. 
 
 LIQUIDATED DAMAGES. In Frac- 
 tioe._ Damages whose amount has been de- 
 termined by anticipatory agreement between 
 the parties. 
 
 Where there is an agreement between parties 
 for the doing or not doing particular acts, the 
 
LIQUroATED DAMAGES 
 
 119 
 
 LIQUOR 
 
 parties may, if they please, estimate beforehand 
 the damages to result from a breach of the 
 agreement, and prescribe in the agreement itself 
 the sum to be paid by either by way of damages 
 for such breach. See 1 H. Bla. 2S3 ; 2 B. <& P. 
 835, 350 ; 2 Bro. P. C. 431 ; 4 Burr. 2225 ; 2 
 Term, 32. The civil law appears to recognize 
 such stipulations ; Inst. 3. 16. 7 ; TouUier, 1. 3, 
 no. 809 ; La. Civ. Code, art. 1928, n. 5 ; Code 
 Civile, 11.52, 1153. Such a stipulation on the 
 subject of damages differs from a penalty in this, 
 that the parties are holden by it; whereas a 
 penalty is regarded as a forfeiture, from which 
 the defaulting party can be relieved. 
 
 The sum named in an agreement as dam- 
 ages to be paid in case of a breach will, in 
 general, be considered as liquidated damages, 
 or as a penalty, according to the intent of the 
 parties ; and the mere u|e of the words 
 "penalty" or " liquidated damages " will not 
 be decisive of the question, if on the whole the 
 instrument discloses a dilferent intent ; Story, 
 Eq.Jur. 1318; 6B.&C. 224; 6 Bingh. 141 ; 6 
 Ired. 186 ; 15 Me. 273 ; 2 Ala. N. s. 425 ; 8 
 Mo. 467 ; 69 N. Y. 45 ; 4 H. & N. 511. It 
 has been said, however, that if the parties 
 use the word "penalty," it will control the 
 interpretation of the contract ; 3 B. & P. 
 630 ; 7 Wheat. 13 ; 38 N. Y. 75 ; 13 N. H. 
 275; but in 16 N. Y. 469, the sum named was 
 stated to be "liquidated damages," but was 
 held to be a penalty. Whether the sura men- 
 tioned in the agreement to be paid for a 
 breach is to be treated as a penalty or as 
 liquidated damages is a question of law, to be 
 determined by the judge upon a consideration 
 of the whole instrument ; 7 C. B. 716. The 
 construction must be the same in law and 
 equity; 5 H. L, C. 105. The tendency of 
 the court is to regard the sum named as a 
 penalty rather than liquidated damages ; 5 
 Mete. Mass. 57 ; 2 B. & P. 346. 
 
 Such a stipulation in an agreement will be 
 considered as a penalty, in the following 
 cases : — 
 
 Where the parties in the agreement have 
 expressly declared it or described it as a 
 "penalty," and no other intent is clearly to 
 be deduced from the instrument ; 2 B. & P. 
 340, 350, 630; 1 Campb. 78: 7 Wheat. 14; 
 1 M'MuU. 106 ; 2 Ala. N. s. 425 ; 6 Mete. 
 Mass. 61 ; 1 Pick. 451 ; 3 Johns. Cas. 297 ; 
 17 Barb. 260; 24 Vt. 97. 
 
 Where it is doubtful on the language of the 
 instrument whether the stipulation was in- 
 tended as a penalty or as liquidated damages ; 
 3 C. & P. 240 ; 6 Humphr. Tenn. 186 ; 5 
 Sandf. 192; 24 Vt. 97; 16 111. 475. 
 
 Where the agreement was evidently made 
 for the attainment of another object or pur- 
 pose, to which the stipulation is wholly col- 
 lateral; 11 Mass. 488; 15 id. iSS; 1 Bro. 
 C. 0. 418. 
 
 Where the agreement imposes several dis- 
 tinct duties, or obligations of different degrees 
 of importance, and yet the same sura is named 
 as damages for a breach of either indifferently ; 
 6 Bingh. 141 ; 5 Bingh. N. c. 390 ; 7 Scott, 
 364 ; 5 Sandf. 192. But see 7 Johns. 72 ; 15 
 
 id. 200; 9 N. Y. 551 ; 77 111. 452 ; 7 Nev. 
 339; L. E. 4 Ch. Div. 731. 
 
 Where the agreement is not under seal, and 
 the damages are capable of being certainly 
 known and estimated ; 2 B. & Aid. 704 ; 6 
 B. & C. 216 ; 1 Mood. & M. 41 ; 4 Dall. 
 150; 5 Cow. 144. 
 
 Where the instrument provides that a larger 
 sum shall be paid upon default to pay a lesser 
 sum in the manner prescribed ; 5 Sandf. 192, 
 640; 16 111. 400; 14 Ark. 329; 2 B. & P. 
 346. 
 
 Where the stipulation is made in respect of 
 a matter certain in value, as the payment of a 
 debt or liquidated money demand, and the 
 sum fixed upon is greater than the debt or de- 
 mand ; 6 Bingh. 148 ; L. K. 8 Ch. 1022. If 
 a debt be secured by a stipulation that in case 
 of its not being paid at the appointed tirtie, a 
 larger sum shall become payable, the stipula- 
 tion for the larger sum is in the nature of a 
 penalty ; L. B. 4 H. L. 1 ; Leake, Contr. 
 1092. 
 
 The stipulation will be sustained as liqui- 
 dated damages in the following cases : — 
 
 Where the agreement is of such a nature 
 that the damages are uncertain, and are not 
 capable of being ascertained by any satisfac- 
 tory and known rule ; 1 Ale. & N. 389 ; 2 
 Burr. 2225 ; 10 Ves. 429 ; 13 M. & W. 702 ; 
 
 1 Ex. 665 ; 3 C. & P. 240 ; 8 Mass. 223 ; 7 
 Cow. 307; 4 Wend. 468; 5 Sandf. 192; 12 
 Barb. 137, 366; 14 Ark. 315; 2, Ohio St. 
 519; L. E. 15 Eq. 36; 101 Mass. 334. 
 
 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. Jur. 8 1318 ; 2 Greenl. Ev. 259 ; 
 1 Bingh. 302; 7 Conn. 291 ; 11 N. H. 234; 
 6 Blackf. 206 ; 13 Wend. 507 ; 26 id. 630 ; 
 10 Mass. 459 ; 7 Mete. 583 ; 2 Ala. N. s. 425 ; 
 14 Me. 250 ; 49 Mo. 406. 
 
 The penal sum in a bond is usually a pen- 
 alty, but if a sum be agreed upon in the con- 
 dition of a bond to be payable upon a breach, 
 the question may arise whether it is liquidated 
 damages or a penalty, and it will be subject 
 to the same principles of construction as in 
 any other forms of contract ; Leake, Contr. 
 1091 ; 2 Ves. Sen. 530. See 5 H. L. C. 105. 
 
 Where the language used is explicit, the 
 extravagance of the sum named as liquidated 
 damages will not be considered; 5 Sandf. 
 192; 11 Eich. 550. 
 
 See 5 Sandf. 192 ; 75 Penn. 157 ; 30 Am. 
 Eep. 26 ; 12 Am. L. Eev. 287 ; 1 Am. Dec. 
 331 ; Sedgw. ; Mayne ; Damages. 
 
 LIQUIDATION. A fixed and determi- 
 nate valuation of things which before were 
 uncertain. 
 
 LIQTTOR. This term, when used in stat- 
 utes forbidding the sale of liquors, refers only 
 to spirituous or intoxicating liquors ; 1 8 N. J. 
 L. 311 ; 20 Barb. 246 ; 3 Denio, 407. 
 
 Ale, beer, porter, rum, gin, brandy, whisky, 
 and wine are in Missouri held to be intoxicating 
 
LIRA 
 
 120 
 
 LIS PENDENS 
 
 liquors ; 12 Mo. 407. Lager beer is included in 
 the term in many of the states ; 8 Alb. L. J. 
 397 ; and evidence of its properties in this respect 
 Is unnecessary, as the court will take Judicial 
 notice of them ; 55 Ala. 158 ; so, also, with wine ; 
 80 N. C. 439. In Iowa, wine manufactured from 
 grapes, currants, or fruits grown within the state 
 is not Included in the term intoxicating liquors ; 
 38 Iowa, 465. See Rogers, Drinlis, etc., 71, and 
 an interesting case in 25 Kan. 751. 
 
 LIRA. The name of a foreign coin. 
 
 In all computations at the custom-house,, the 
 lira of Sardinia shall he estimated at eighteen 
 cents and six mills, Act of March 23, 1846 ; the 
 lira of the Lombardo-Venetian kingdom, and 
 the lira of Tuscany at sixteen cents. Act of 
 March 22, 1846. 
 
 LIS MOTA (Lat.). A controversy begun, 
 i. e. on the point at Issue, and prior to com- 
 mencement of judicial proceedings. Such 
 controversy is taken to arise on the advent 
 of the state of facts on which the claim rests ; 
 and after such controversy has arisen {post 
 litem motam) no declarations of deceased mem- 
 bers of family as to matters of pedigree are 
 admissible; 6 C. & P. 560; 4 Campb. 417 ; 
 
 2 Russ. & M. 161 ; Greenl. Ev. §§ 131, 132 ; 
 4 Maule & S. 497 ; 1 Pet. 337 ; 26 Barb. 177. 
 
 LIS PENDENS (Lat.). A pendingsuit. 
 Suing out a. writ and making attachment 
 (on mesne process) constitutes a lis pendens 
 at common law. 21 N. H. 570. 
 
 Filing the bill and serving . a subpoena cre- 
 ates a lis^endens in equity; 1 Vern. 318 ; 7 
 Beav. 444; 27 Mo. 560; 4 Sneed, 672; 26 
 Miss. 397; 9 Paige, Ch. 512 ; 22 Ala. N. s. 
 743 ; 7 Blackf. 242 ; which the final decree 
 terminates ; 1 Vern. 318. In the civil law, 
 an action is not said to be pending till it 
 reaches the stage of contestatio litis. The 
 phrase is sometimes incorrectly used as a sub- 
 stitute for autre action pendant, q. v. See 1 
 La. An. 46 ; 21 N. H. 570. 
 
 The proceedings must relate directly to the 
 specific property in question ; 1 Strobh. Eq. 
 180 ; 7 Blackf. 242 ; 7 Md. 637 ; Story, Eq. 
 § 351 ; 1 Hill. Vend. 411 ; and the rule ap- 
 plies to no other suits ; 1 M'Oord, Ch. 252. 
 
 Piling a judgment creditor's bill constitutes 
 a lispendens ; 4 Edw. Ch. 29. A petition 
 by heirs to sell real estate is not a lis pendens ,' 
 14 B. Monr. 164. The court must have ju 
 risdiction over the thing; 1 McLean, 167 
 Generally, suit is not pending till service of 
 process ; 57 Mo. 362 ; 14 Pet. 322 ; 1 Sandf. 
 731 ; Wade, Notice, 152; but see 30 Tex. 
 494 ; 10 Ark. 479 ; 64 Mo. 519. 
 
 Only unreasonable and unusual negligence 
 in the prosecution of a suit will take away its 
 character as a lis pendens ; 18 B. Monr. 230 ; 
 11 id. 297 ; there must be an active prosecu- 
 tion to keep it alive ; 1 Vern. 286 ; 1 Russ. & 
 M. 617 ; 30 Mo. 432; 9 Paige, 512; 21 Iowa, 
 421. 
 
 its pendens is said to be general notice to 
 all the world ; Ambl. 676 ; 2 P. Wms. 282 ; 
 
 3 Atk. 343; 1 Vern. 286; 3 Hayw. 147; 1 
 Johns. Ch. 556 (a leading case) ; but it has 
 been said that it is not correct to speak of it 
 
 as a part of the doctrine of notice ; the pur- 
 chaser /lenrfen^e lite is efiected, not by notice, 
 but because the law does not allow litigating 
 parties to giye to others, pending the litigation, 
 rights to the property in dispute so as to preju- 
 dice the opposite party. Per Cranworth, C, 
 in 1 De G. & J. 566. The doctrine rests upon 
 public policy, not notice ; 2 Rand. 93 ; 10 W. 
 N. C. (Pa). 389. 
 
 A voluntary assignment during the pen- 
 dency of a suit does not aifect the rights of 
 other parties, if not disclosed, except so far 
 as the alienation may disable the party from 
 performing the decree of the court ; Story, 
 Eq^. PL § 35] ; 15 Tex. 495; 22 Barb. 666: 
 as in the case of mortgage by tenant in com- 
 mon of his undivided interest, and subsequent 
 partition ; 2 Sandf. Ch. 98. 
 
 An involuntary assignment by a plaintiff, as 
 under the bankrupt or insolvent laws, renders 
 the suit so defective that it cannot be prose- 
 cuted if the defendent objects ; 7 Paige, Ch. 
 287 ; 1 Atk. 88 ; 4 Ves. 387 ; 9 Wend. 649; 
 1 Hare, 621 ; Story, Eq. PL § 849. Not if 
 made under the bankrupt law of 1841 ; 27 
 Barb. 252. 
 
 The same may be said of a voluntary as- 
 signment of all his interest by a sole com- 
 plainant ; 5 Hare, 223 ; Story, Eq. PL § 349. 
 
 An alienee, during the pendency of a suit, 
 is bound by the proceedings therein subse- 
 quent to the alienation, though before he be- 
 came a party ; 4 Beav. 40 ; 6 Mich. 456 ; 22 
 Barb. 166 ; 27 Penn. 418 ; 6 Du. N. Y. 631 ; 
 7 Blackf. 242. 
 
 Purchasers during the pendency of a suit 
 are bound by the decree in the suit without 
 being made parties ; 1 Swanst. 55 ; 4 Russ. 
 ,372; 1 Dan. Ch. Pr. 375; Story, Eq. PL 
 § 351 a ; 32 Ala. n. s. 451 ; 11 Mo. 519 ; 30 
 Miss. 27 ; 12 La. An. 776 ; 6 Barb. 133 ; 22 
 id. 166 ; 27 Penn. 418 j 7 Eng. 421 ; 16 111. 
 225; 5 B. Monr. 323; 9 B. Monr. 220; 11 
 Ind. 443 ; and will not be protected because 
 they paid value and had no notice of the 
 suit ; 35 Conn. 250 ; 6 Iowa, 258. 
 
 So also is a purchaser during a suit to avoid 
 a conveyance as fraudulent ; 5 T. B. Monr. 
 373 ; 6 B. Monr. 18. 
 
 A citizen of the United States resident in 
 a dififerent state from that in which the suit is 
 pending, is bound by the rule regarding pur- 
 chasers pendente lite ; 9 Pet. 86 ; and actual 
 notice of the pendency of the suit is not ne- 
 cessary; 9 Dana, 372. See 12 Cent. L. J. 
 101. 
 
 Lis pendens by a mortgagor under a prior 
 unrecorded mortgage is notice to a second 
 mortgagee; 9 Ala. N. B. 921. But see 2 
 Rand. 93. 
 
 The rule does not apply where a title im- 
 perfect before suit brought is perfected during 
 its pendency; 4 Cow. 667; 14 Ohio, 323. 
 
 A debtor need not pay to either party peri' 
 dente lite ; 1 Paige, Ch. 490. 
 
 The doctrine of lis pendens has been said 
 to be an equitable doctrine only ; 28 Conn. 
 593 ; but when one comes into possession of 
 
LIST 
 
 121 
 
 LITISPENDENCIA 
 
 the subject of litigation, during proceedings 
 in ejectment, he will be bound by the judg- 
 ment, though not a party, and may be ejected 
 under the judgment against his assignor; 
 Wade, Notice ; 1 McLean, 87 ; 9 Cow. 233. 
 
 In law, the same effect is produced by the 
 rule that each purchaser takes the title of his 
 vendor only; 11 Md. 519 ; 27 Penn. 418 ; 6 
 Barb. 133 ; 30 Miss. 27 ; 5 Mich. 456 ; 1 
 Hill. Vend. 411. This doctrine has generally 
 been confined to controversies over real estate ; 
 22 Ala. 760; 30 Mo. 462 ; 2 Johns. Ch. 444 ; 
 but a purchaser of securities pendente lite has 
 been decreed to surrender them upon receiving 
 the sum he had paid for them ; 1 Desau. 167 ; 
 and the principle has been extended to a 
 bond and mortgage, assigned by a trustee, 
 pending a suit by the cestui que trust; 2 
 Johns. Ch. 441. ' 
 
 The doctrine does not apply to stocks ; 48 N. 
 Y. 586 ; or to negotiable instruments, no matter 
 by what form of action it is sought to subject 
 them to adverse claims, when such instru- 
 ments are in the hands of bona fide purchas- 
 ers who acquired them before maturity ; 68 
 Penn. 72; 20 How. 343; 38 Ga. 18; 22 
 Ala. 760; 23 Wise. 21; 14 Wall. 283; 97 
 U. S. 96. 
 
 The doctrine of lis pendens is modified In 
 many of the states of the United States, and 
 by statutes requiring records of the attach- 
 ment to prelimmary proceedings to be made, 
 and constituting such records notice. See 
 Stat. 2 Vict. c. 11, § 7 ; and Be v. Statutes of 
 the various states. 
 
 See Wade, Notice; 4 Cent. L. J. 27; 14 
 Am. Dec. 774. 
 
 LIST. A table of cases arranged for trial 
 or argument : as, the trial list, the argument 
 list. See 3 Bouvier, Inst. n. 3031. 
 
 LISTERS. This, word is used in some of 
 the states to designate the persons appointed 
 to make lists of taxables. See Vt. Kev. Stat. 
 538. 
 
 LITi:R.Si PROCITRATORiaS (Lat.). 
 In Civil Lavr. Letters procuratory. A 
 written authority, or power of attorney (litera 
 attornati), given to a procurator. Vicat, Voc. 
 Jur. Utr. ; Bracton, fol. 40-43. 
 
 LITERAL CONTRACT. In Civil 
 LAW, A contract the whole of the evidence 
 of which is reduced to writing, and binds the 
 party who subscribed it, although he has re- 
 ceived no consideration. Lep. E16m. § 887. 
 
 LITERARY PROPERTT. The gene- 
 ral term which describes the interest of an 
 author in his works, or of those who claim 
 under him, whether before or after publica- 
 tion, or before or after a copyright has been 
 secured. 9 Am. L. Reg. 44 ; 4 Du. N. Y. 
 379; 11 How. Pr. 49. See Copyright; 
 Manuscript ; Curtis, Copyright ; 2 Bla. 
 Com. 405, 406 ; 4 Viner, Abr. 278 ; Bacon, 
 Abr. Prorogation (P 5) ; 2 Kent, 306-315 ; 
 1 Belt, Suppl. Ves. Jr. 360, 376 ; 2 id. 469 ; 
 Nickl. Lit. Prop. ; Dane, Abr. Index ; 1 
 Chitty, Pr. 98; 2 Am. Jur. 248; 10 id. 62; 
 
 1 Bell, Com. b. 1, part 2, c. 4, s. 2, p. 115 ; 
 Shortt, Copy. ; Morgan, Law of Lit. 
 
 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. 
 
 In order to prevent injustice, courts of 
 equity will restrain a party from further litiga- 
 tion, by a writ of injunction : for example, 
 after two verdicts on trials at bar, in favor of 
 the plaintiff, a perpetual injunction was de- 
 creed; Stra. 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. 587. See Circuity of Actions. 
 
 LITIGIOSITY. In Scotch Law. The 
 pendency of a suit : it is an implied prohibi- 
 tion 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. 
 
 2 Bell, Com. 5th ed. 152. , 
 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. . • 
 
 In Ecclesiastical LaTv. 
 
 A church is said to be litigious, when two 
 rival presentations are offered to the bishop upon 
 the same avoidance of the living ; Moz. & W. ; 
 
 3 Steph. Com. 417. 
 
 LITIGIOUS RIGHTS. In 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. Pothier, Vente, n. 584; 
 9 Mart. La. 183; Troplong, De la Vente, n. 
 984 h 1003 ; Eva. Civ. Code, art. 2623 ; id. 
 3522, n. 22. See Contentious Jurisdic- 
 tion. 
 
 LITISFENDENCIA. In Spanish Law. 
 Litispendency. The condition of a suit pend- 
 ing in a court of justice. 
 
 In order to render this condition valid, it is 
 necessary that the judge be competent to take 
 cognizance of the cause ; that the defendant 
 has been duly cited to appear, and fully in- 
 formed, in due time and form, of the nature 
 of the demand, or that, if he has not, it has 
 been through his own fault or fraud. 
 
 The litispendencia produces two effects : the 
 legal impossibility of alienating the property 
 in dispute during the pendency of the suit ; 
 the accumulation of all the proceedings in 
 the cause, in the tribunal where the suit is 
 pending, whether the same be had before the 
 
LITRE 
 
 122 
 
 LOAD-LINE 
 
 same judge or other judges or notaries. This 
 cumulation may be required in any stage of 
 the cause, and forms a valid exception to the 
 further proceeding, until the cumulation is 
 effected. Escriche, Diet. 
 
 LITRXi. A French measure of capacity. 
 It is of the size of a cubic d6cimfetre, or the 
 cube of one-tenth part of a metre. It is 
 equal to 61.027 cubic inches, or a little more 
 than a quart. See Measure. 
 
 LITTORAL Qittus) . Belonging to shore : 
 as, of sea and great lakes. Webst. Corre- 
 sponding to riparian proprietors on a stream 
 or small pond are littoral proprietors on a sea 
 or lake. But riparian is also used coexten- 
 sively with littoral. 7 Cush. 94. See 17 
 How. 426. 
 
 LITtrS MARIS (Lat.). In CivU Law. 
 Shore ; beach. Qua Jluclus eluderet. Cic. 
 Top. c. 7. Qudfluctus adludit. Quinct. lib. 
 5, c. ult. Quousque maximus Jluctus a mari 
 pervenit. Celsua ; said to have been first so 
 defined by Cicero, in an award as arbitrator. 
 L. 92, D, de verb, signif. Qud maximus 
 fluctus excBstuat. L. 112, D, eod. tit. Qua- 
 tenus hibernus fluctus maximus excurrit. 
 Inst. lib. 2, de rer. divis. et qual. § 3. That 
 is to say, as far as the largest winter wave 
 runs up. Vocab. Jur. Utr. 
 
 At Common lia.'w. The shore between 
 common high-water mark and low-water 
 mark. Hale, de Jure Maris, cc. 4, 6, 6 ; 3 
 Kent, 427 ; 2 Hill. R. P. 90. • 
 
 Shore is also used of a river. 5 Wheat. 
 385; 20 Wend. 149. See 13 How. 381 ; 28 
 Me. 180; 14 Penn. 171. 
 
 LIVE. 
 
 Under statute providing a punishment for 
 those " living together " in fornication or adul- 
 tery, occasional acts of intercourse are not suffi- 
 cient ; 14 Ind. 280 ; 37 Tex. 346 ; 25 Ga. 477 ; 
 see 39 Ala. 554 ; 11 Mass. 158 ; 2 Ired. Eq. 226 ; 
 47 How. Pr. 446. "Live animals" has been 
 held to include singing birds ; 7 Blatchf. 235. 
 " Live stock " has been held not to include live 
 fowls ; 5 Blatchf. 520. 
 
 LIVERY. In EngUsh Law. The de- 
 livery of possession of lands to those tenants 
 who hold of the king in capite or by knight's 
 service. 
 
 The name of a writ which lay for the heir 
 of age to obtain possession of the seisin of his 
 lands at the king's hands ; abolished by stat. 
 12 Car. IL c. 24 ; Fitzh. N. B. 155 ; 2 Bla. 
 Com. 68. 
 
 The distinguishing dress worn by the ser- 
 vants of a gentleman or nobleman, or by the 
 members of a particular guild. ' ' Livery or 
 clothing." Say. 274. By stat. 1 Rich. II. 
 c. 7, and 16 Rich. II. c. 4, none but the ser- 
 vants of a lord, and continually dwelling in 
 his house, or those above rank of yeomen, 
 should wear the lord's livery. 
 
 Privilege of a particular company or guild. 
 The members of such company are called 
 liverymen; Whart. Lex. 
 
 LIVERY OP SEISIN. In Estates. 
 A delivery of possession of lands, tenements, 
 
 and hereditaments unto one entitled to the 
 same. This was a ceremony used in the com- 
 mon law for the conveyance of real estate ; 
 and livery was in deed, which was performed 
 by the feoffor and the feoffee going upon the 
 land and the latter receiving it from the for- 
 mer; or in law, where the same was not 
 made on the land, but in sight of it ; 2 Bla. 
 Com. 315, 316. 
 
 In America, livery of seisin is unnecessary, 
 it having been dispensed with either by ex- 
 press law or by usage. The delivery and 
 recording of the deed have the same effect ■ 
 Washb. R. P. 14, 35. In Maryland, until 
 quite recently, it seems that a deed could not 
 operate as a feoffment without livery of seisin ; 
 but under the Rev. Code of 1878, art. 44, 
 § 6, neither livery of seisin nor indenting is 
 necessary; 5H. &J. 158. See 4 Kent, 381 ; 
 1 Mo. 553 ; 1 Pet. 508 ; 1 Bay, 107 ; 6 
 H. & J. 168 ; 11 Me. 318 ; 8 Cra. 229 ; 
 Dane, Abr. ; Bingh. Act. and Def. 96. 
 Seisin. 
 
 LIVRE TOXTRNOIS. In Common 
 La'w. A coin used in France before the 
 revolution. It is to be computed in the ad 
 valorem duty on goods, etc., at eighteen and 
 a half cents. Act of March 2, 1798, § 61, 1 
 Story Laws, 629. See Foreign Coins. 
 
 LLOYDS. An association in the city of 
 London, the members of which underwrite 
 each other's policies ; 2 Steph. Com. 129. 
 
 The name is derived from Lloyd's coflee house, 
 the great resort for seafaring men and those do- 
 ing business with them in the time of William 
 111. and Anne. Lloyd's underwriters now carry 
 on business in rooms over the Royal Exchange, 
 still called Lloyd's. The affairs of subscribers 
 to these rooms are managed by a committee, 
 called Lloyd's Committee, who appoint agents 
 in all the principal ports of the world, whose 
 business it is to forward all such maritime news 
 as may be of importanc^in guiding the Judg- 
 ment of the underwriters. These accounts, 
 which arrive almost hourly from some part of 
 the world, are at once posted up, and are called 
 Lloyd's Written Lists. They are subsequently 
 copied into three books, called Lloyd's Book. 
 °^e Moz. & W. ; Am. Ins. 
 
 LLOYD'S BONDS. A kind of bond 
 much used in commercial transactions in Eng- 
 land. _ They are under the seal of a company 
 admitting the indebtedness of the company to 
 a specified amount to the obligee, with a 
 covenant to pay him such amount with in- 
 terest on a future day. Their validity de- 
 pends on the considerations for which they are 
 given ; 2 Steph. Com. 108, n. ; Lind. Part. 
 284 ; L. R. 2 Ex. 226 ; 4 Ch. App. 748. 
 
 LOAD-LINE. The depth to which a 
 ship is loaded so as to sink in salt water. 
 
 Every owner of a British ship before entering 
 his ship outwards from any port In the United 
 Kingdom shall mark, in white or yellow on a 
 dark ground, a circular disc, twelve Inches in 
 diameter, with a horizontal line eighteen inches 
 long, through its centre, and the centre of this 
 disc IB to indicate the maximum load-line in salt 
 water, to which the owner intends to load the 
 ship for that voyage ; Moz. & W. 
 
LOADMANAGE 
 
 123 
 
 LOCAL ACTION 
 
 LOADMANAGE. The pay to loads- 
 men ; that is, persona who sail or row before 
 ships, in barks or small vessels, with instru- 
 ments for towing the ship and directing her 
 course, in order that she may escape the dan- 
 ■ gers in her way. Pothier, Des Avaries, n. 
 137 ; Guidon de la Mer, c. 14; Bacon, Abr. 
 Merchant and Merchandise (F). It is not 
 in use in the United States. 
 
 LOAN. A bailment without reward. A 
 bailment of an article for use or consumption 
 without reward. The thing so bailed. 
 
 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. 
 109. 
 
 It would be an inquiry too purely speculative, 
 whether this use of the term loan originated in 
 the times when talking interest was considered 
 usury and improper, the bailment of money 
 which was to be returned in kind. The suppo- 
 sition would furnish a reasonable explanation of 
 the exception to the general rule that loan in- 
 cludes properly only those bailments where no 
 reward is given or received by the bailee. 
 
 In order to make a contract usurious, there 
 must be a loan ; Cowp. 112, 770 ; 1 Ves. 527 ; 3 
 Wils. 390 ; and the borrower must be bound to 
 return the money at all events ; 2 8ch. & L. 470. 
 The purchase of a bond or note is not a loan ; 3 
 Sch. & L. 469 ; 9 Pet. 103 ; but if such a pur- 
 chase be merely colorable, it will be considered 
 as a loan ; 2 Johns. Cas. 60, 66 ; 12 S. & B. 46 ; 
 15 Johns. 44. 
 
 LOAN FOR CONSUMPTION. A 
 
 contract by which the owner of a personal 
 chattel, called the lender, delivers it to the 
 bailee, called the borrower, to be returned in 
 kind. 
 
 For example, if a person borrows a bushel of 
 wheat, and at the end of a month returns to the 
 lender a bushel of equal value. This class of 
 loans is commonly considered under the head of 
 bailments ; but it lacks the one essential ele- 
 ment of bailment, that of a return of the pro- 
 perty : it is more strictly a barter or an exchange : 
 the property passes to the borrower ; 4 N. T. 76 : 
 8 id. 433 ; 4 Ohio St. 98 ; 3 Mas. 478 ; 1 Blackf. 
 3.53 ; Story, Bailra. § 439. Those cases some- 
 times called ventvMm (the corresponding civil 
 law term) , such as where corn is delivered to a 
 miller to be ground into wheat, are either cases 
 of hirmg of labor and servjce, as where the mil- 
 ler grinds and returns the identical wheat ground 
 into flour, retaining a portion for his services, or 
 constitute a mere exchange, as where he mixes 
 the wheat with his own, undertaking to furnish 
 an equivalent in corn. It amounts to a contract 
 of sale, payment being stipulated for in a speci- 
 fied article instead of money. 
 
 LOAN FOR USE (called, also, commo- 
 datum) . A bailment of an article to be used 
 by the borrower without paying for the use. 
 2 Kent, 573. 
 
 Loan for use (called eommodattan in the civil 
 law) differs from a loan for consumption (called 
 mutiium in the civil law) in this, that the eommo- 
 datum must be specifically returned, the rmiiuum 
 Is to be returned in kind. In the case of a com- 
 modatum, the property in the thing remains in 
 the lender ; In a mutuum, the property passes to 
 the borrower. 
 
 The loan, like other bailments, must be 
 of some thing of a personal nature ; Story, 
 
 Bailm. § 223 ; it must be gratuitous ; 2 Ld. 
 Raym. 913 ; for the use of the borrower, and 
 this as the principal object of the bailment ; 
 Story, Bailm. § 225; 13 Vt. 161; and must 
 be lent to be specifically returned at the de- 
 termination of the bailment ; Story, Bailm. 
 § 228. 
 
 The general law of contracts governs as to 
 the capacity of the parties and the character 
 of the use; Story, Bailm. §§ 50, 162, 302, 380. 
 He who has a special property may loan the 
 thing, and this even to the general owner, and 
 the possession of the general owner still be 
 that of a borrower ; 1 Atk. 235 ; 8 Term, 
 199 ; 2 Taunt. 268. 
 
 The borrower may use the thing himself, 
 but may not, in general, allow others to use 
 it ; 1 Mod. 210 ; 4 Sandf. 8 ; during the time 
 and for the purposes and to the extent con- 
 templated by the parties ; 5 Mass. 1 04 ; 1 
 Const. S. C. 121 ; 3 Bingh. N. c. 468 ; Bracton, 
 99, 100. He is bound to use extraordinary 
 diligence ; 3 Bingh. N. c. 468 ; 14 Ul. 84 ; 4 
 Sandf. 8; Story, Bailm. § 237; is responsible 
 for accidents, though inevitable, which injure 
 the property during any excess of use ; 5 
 Mass. 194 ; 16 Ga. 25 ; must bear the ordi- 
 nary expenses of the thing; Jones, Bailm. 
 67 ; and restore it at the time and place and 
 in the manner contemplated by the contract ; 
 16 Ga. 25; 12 Tex. 373; Story, Bailm. § 
 99; including, also, all accessories; 16 Ga. 
 25 ; 2 Kent, 666. As to the place of delivery, 
 see 9 Barb. 189; 1 Me. 120; 1 N. H. 295; 
 1 Conn. 255; 5 id. 76; 16 Mass. 453. He 
 must, as a general rule, return it to the lender ; 
 7 Cow. 278 ; 1 B. & Ad. 450 ; 11 Mass. 211. 
 
 The lender may terminate the loan at his 
 pleasure ; 9 East. 49 ; 1 Term, 480 ; 8 Johns. 
 N. Y. 432 ; 16 Ga. 25 ; is perhaps liable for 
 expenses adding a permanent benefit ; Story, 
 Bailm. § 274. The lender still retains his 
 property as against third persons, and, for 
 some purposes, his possession; II Johns. 
 285; 6 id. 195; 13 id. 141, 561 ; 1 Pick. 
 389 ; 5 Mass. 303 ; 1 Term, 480 ; 1 B. & 
 Aid. 59 ; 2 Cr. M. & R. 659. As to whether 
 the property is transferred by a recovery of 
 judgment for its value, see 26 E. L. & Eq. 
 328 ; Mete. Yelv. 67, n. ; 5 Me. 147 ; 1 Pick. 
 62. See, generally, Edwards, Jones, Story, 
 on Bailments ; Kent, Leet. 46. 
 
 LOAN SOCIETIES. In English Law. 
 A kind of club formed for the purpose of ad- 
 vancing money on loan to the industrial 
 classes. They are of comparatively recent 
 origin in England, and are authorized and 
 regulated by 3 & 4 Vict. ch. 110, and 21 Vict, 
 ch. 19. 
 
 LOCAL ACTION. In Practice. An 
 
 action the cause of which could have arisen 
 in some particular county only. 
 
 All local actions must be brought in the 
 county where the cause of action arose. 
 
 In general, all actions are local which seek 
 the recovery of real property ; 2 W. Blackst. 
 1070; 4 Term, 504; 7 id. 689; whether 
 
LOCAL ALLEGIANCE 
 
 124 
 
 LOCATION 
 
 founded upon contract or not; or damages 
 for injury to such property, as waste, under 
 the statute of Gloucester, trespass _ quare 
 clausum /regit, trespass or 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 ; 1 Chitty, PI. 271 ; Gould, 
 PI. ch. 3, §§ 105, 106, 107; but not if there 
 was a contract between the parties on which 
 to ground an action ; 15 Mass. 284 ; 1 Day, 
 Conn. 263. 
 
 Many actions arising out of injuries to 
 local rights are local: as, quare impedit; 1 
 Chitty, PI. 241. The action of replevin is 
 also local ; 1 Wms. Saund. 247, n. 1 ; Gould, 
 PI. c. 3, §111. See Gould, Chitty, Pleading; 
 Comyns, Dig. Action.; Transitory Action. 
 LOCAL ALLEGIANCE. The alle- 
 giance due to a government from an alien 
 while within its limits. 1 Bla. Com. 370 ; 2 
 Kent, 63, 64. 
 
 LOCAL OPTION. This term is used to 
 designate a right granted by legislative enact- 
 ments to the inhabitants of particular dis- 
 tricts, to determine by ballot whether or not 
 licenses should be issued for the sale of intoxi- 
 cating liquors within such districts. 
 
 An act of this character passed in Delaware, in 
 1847, was declared unconstitutional as an at- 
 tempted delegation of the trust to malte laws, 
 confided to the legislature; 4 Harr. 479; so, 
 also, in Indiana and Iowa ; 4 Ind. 342 ; 42 Ind. 
 547 ; 5 Iowa, 495. This kind of legislation has 
 been supported, however, as falling within the 
 class of police regulations ; 108 Mass. 27. In 
 Pennsylvania, Agnew, J., In a leading opinion on 
 this subject, says, the true distinction is this : 
 " The legislature cannot delegate its power to 
 make a law ; but it can make a law to delegate 
 a power to determine some factor state of things 
 upon which the law makes, or intends to make, 
 its own action depend ;" 72Penn.491. At this time 
 the weight of authority is in favor of the consti- 
 tutionality of local option laws ; 36 N. J. 720 ; 42 
 Conn. 364 ; 42 Md. 71. See 12 Cent. L. J. 123 ; 
 12 Am. L. Eeg. N. s. 133 ; Cooley, Const. Lim. 125. 
 
 LOCAL STATUTES. Statutes whose 
 operation is intended to be restricted within 
 certain limits. Dwarr. on Stat. p. 384. It 
 may be either public or private. 1 Sharsw. 
 Bla. Com. 85, 86, n. Local statutes is used 
 by Lord Mansfield as opposed to personal 
 statutes, which relate to personal transitory 
 contracts ; whereas local statutes refer to 
 things in a certain jurisdiction alone : e. g., the 
 Statute of Frauds relates only to things in 
 England ; 1 W. Blackst. 246. 
 
 LOCALITY. In Scotch Law. This 
 name is given to a life rent created in mar- 
 riage contracts in favor of the wife, instead 
 of leaving her to her legal life rent of terce. 
 1 Bell, Com. 55. See Jointure. 
 
 LOCATIO (Lat.). In CivU Law. Letting 
 for hire. Calvinus, Lex. ; Voc. Jur. Utr. The 
 term is also used by text- writers upon the law 
 of bailment at common law. 1 Parsons, 
 Contr. 602. In Scotch law it is translated 
 location. Bell, Diet. 
 
 LOCATIO OFERIS MERCITTM VB- 
 HENDARUM (Lat.). In CivU Law. 
 The carriage of goods for hire. 
 
 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 ordi- 
 nary diligence and a reasonable exercise of 
 skill ; and of course he is not responsible for 
 any losses not occasioned by ordinary negli- 
 gence, 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 
 id. 577; 2 Marsh. 293; Jones, Bailm. 103, 
 106, 121; 2 B. & P. .417. See Common 
 Carriers. 
 
 LOCATIO OPERIS (Lat.). In ClvU 
 Law. 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. Pothier, Louage, n. 392. 
 This is divided into two branches : first, lo- 
 catio operis faeiendi ; and, secondly, localio 
 operis mercium vehendarum. See these 
 titles. 
 
 LOCATIO OFERIS FACIENDI 
 (Lat.). In Civil Lavr. Hire of services to 
 be performed. 
 
 There are two kinds : first, the locatio operit fa- 
 eiendi strictly so called, or the hire of labor and 
 services ; such as the hire of tailors to make 
 clothes, and of jewellers to set gems, and of 
 watchmakers to repair watches. Jones, Bailm, 
 90, 96, 97. Secondly, locatio eitatodice, or the re- 
 ceiving of goods on deposit for a reward, which 
 is properly the hire of care and attention about 
 the goods. Story, Bailm. §§ 422, 442. 
 
 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 re- 
 ward ; and, thirdly, a lawful contract between 
 parties capable and intending to contract. 
 Pothier, Louage, nn. 395-403. 
 
 LOCATIO REI (Lat.). In CivU Law. 
 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 re- 
 turn. Poth. Contr. de Louage, n. 1. See 
 Bailment ; Hire ; Hirer ; Letter. 
 
 LOCATION. In Scotch Law. A con- 
 tract by which the temporary use of a sub- 
 ject, or the work or service of a person, is 
 given for an ascertained hire. 1 Bell, Com. 
 b. 2, pt. 3, c. 2, s. 4, art. 2, § 1, page 255. 
 See Bailment ; Hire. 
 
 At Common Law. The act of selecting 
 and designating lands which the person mak- 
 ing the location is authorized by law to 
 select. 
 
LOCATIVE CALLS 
 
 125 
 
 LOG-BOOK 
 
 It is applied among surveyors who are au- 
 thorized by public authority to lay out lands 
 by a particular warrant. The act of selecting 
 the land designated in the warrant and sur- 
 veying it is called its location. In Pennsyl- 
 vania, 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, § 2. ft is often applied to denote 
 the act of selecting and marking out the line 
 upon which a railroad, canal, or highway is 
 to be constructed. 
 
 LOCATIVE CALLS. Calls or require- 
 ments of a deed, etc., for certain landmarks, 
 describing certain means by which the land 
 to be located can be identified. 
 
 Reference to physical objects in entries and 
 deeds, by which the land to be located is ex- 
 actly described ; 2 Bibb, 145 ; 3 id. 414. 
 
 Special, as distinguished from general, calls 
 or descriptions ; 3 Bibb, 414 ; 2 Wheat. 211 ; 
 10 id. 463 ; 7 Pet. 171 ; 18 Wend. 157 ; 10 
 Gratt. 445 ; Jones, Law, 469 ; 16 Ga. 141 ; 
 5lnd. 302; 15 Mo. 80. 
 
 LOCATOR. In CivU Law. He who 
 leases or lets a thing to hire to another. His 
 duties are, first, to deliver to the hirer the 
 thing hired, that he may use it ; second, to 
 guarantee to the hirer the free enjoyment of 
 it ; third, to keep the thing hired in good 
 order in such manner that the hirer may 
 enjoy it ; fourth, to warrant that the thing 
 hired has not such defects as to destroy its 
 use. Pothier, Contr. de Louage, n. 53. One 
 who locates, or surveys lands. 
 
 The claim of a " locator " is peculiar to Ken- 
 tucky, and is for a portion of the land located in 
 compensation for his services ; 4 Pet. 446. 
 
 LOCK-UP HOUSE. A place used tem- 
 porarily as a prison. 
 
 LOCO PARENTIS. See In Loco Pa- 
 rentis. 
 
 LOCUM TENENS. Holding the place. 
 A deputy. See Lieutenant. 
 
 LOCUS CONTRACTUS. See Lex 
 Loci. 
 
 LOCUS DELICTI. The place where 
 the tort, offence, or injury has been commit- 
 ted. 
 
 LOCUS PCBNITENTI.ai (Lat. a place 
 of repentance). The opportunity of with- 
 drawing 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. C. 569. Un- 
 til an offer is accepted by the offeree the 
 party making it may withdraw it at any time. 
 So of a bid at auction. ''An auction is not 
 inaptly called locus poenitentice." 3 Term, 
 148. See Attempt. 
 
 LOCUS IN QUO (Lat. the place in 
 which). In Pleading. The place where 
 any thing is alleged to have been done. 1 
 Salk. 94. 
 
 LOCUS REI SIT.a!. See Lex Rei 
 
 SlTJE. 
 
 LOCUS SIGILLI (Lat.). The place of 
 the seal. 
 
 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 ; Seal. 
 
 LOCUS STANDI. (A place of stand- 
 ing. ) A right of appearance in a court of 
 justice or before a legislative body, on a given 
 question. A right to be heard. 
 
 LODE MANAGE. The hire of a pilot, 
 for conducting a ship from one place to 
 another. Cowel. 
 
 LODGER. One who inhabits a portion 
 of a house of which another has the general 
 possession and custody. 
 
 It is difHcult, in the present state of the law, to 
 state exactly the distinctions between a lodger, a 
 guest, and a boarder. A person may be a guest 
 at an inn without being a lodger ; 1 Salk. 388 ; 9 
 Pick. 280 ; 25 Wend. 6.53 ; 342 ; 16 Ala. N. 8. 
 666 ; 8 Blackf. 535 ; 14 Barb. 193 ; 6 C. B. 133. 
 And boarder includes one who regularly takes 
 his meals with, and forms in some degree a part 
 of, the householder's family. See Boardei! ; 
 Guest ; Inn ; Innkeefek ; 25 E. L. & Eq. 76. 
 A lodger does not take meals in the house as 
 lodger ; but the duration of the inhabitancy is of 
 no importance as determining his character. The 
 difficulty in this respect is in deciding whether a 
 person is an under-tenant, entitled to notice to 
 quit, or merely a lodger, and not entitled to such 
 notice. See Wood, Landl. & T. 177; 7 M. & G.87. 
 
 LODGING HOUSE ACTS. Various 
 acts for the well ordering of common lodging 
 houses, beginning in 1851 with the stat. 14 
 & 15 Vict. c. 28. The last act on the subject 
 was 31 & 32 Vict. c. 130. 
 
 LOpS ET RENTES. A fine payable to 
 the seigneur upon every sale of lands within 
 his seigniory. 1 Low. C. 59. 
 
 Any transfer of lands for a consideration gives 
 rise to the claim ; 1 Low. C. 79 ; as, the creation 
 of a rente viagire (life-rent) ; 1 Low. C. 84 ; a 
 transfer under bail emphyteotiqtte ; 1 Low. C. 295; 
 a promise to sell, accompanied by transfer of 
 possession ; 9 Low. C. 272. It does not arise on a 
 transfer by a father to his son subject to a pay- 
 ment by the son of a life-rent to the father, and 
 of the father's debts ; 8 Low. C. 5, 34, 334 ; nor 
 where property is required for public uses. 1 
 Low. C. 91. 
 
 LOG-BOOK. A ship's journal. It con- 
 tains a minute account of the ship's course, 
 with a short history of every occurrence dur- 
 ingthe voyage. 1 Marsh. Ins. 408. 
 
 The part of the log-book relating to trans- 
 actions in the harbor is termed the harbor 
 log ; that relating to what happens at sea, the 
 sea log. Young, Naut. Die. 
 
 When a log-book is 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. Abbott, Shipp. 468, n. 
 
LONDON AND MIDDLESEX 12G 
 
 LOST PAPERS 
 
 1: 1 Sumn. 373; 2 id. 19, 78; 
 
 1 ; 1 aumn. oio ; a i«. la, lo , 4 Mas. 544 ; 
 1 Esp. 427 ; 1 Dods. 9 ; 2 Hagg. Eccl. 169 ; 
 GUp. 147. 
 
 All vessels making foreign voyages from the 
 United States, or, of the burden of seventy-flve 
 tons or more, from a port on the Atlantic to a 
 port on the Pacific, or vice versa, must have an 
 official log-book ; Rev. Stat. § 4290. 
 
 In suits for seamen's wages, the log-book is 
 to be produced if required, or otherwise the 
 complainant may state its contents. The 
 neglect of a seaman to render himself on 
 board, and his absence without leave, are also 
 to be entered on the log-book in certain cases, 
 or the sailor's fault will not forfeit his wages. 
 Acts 20 July, 1790, sects. 2, 6, & 6 ; 7 June, 
 .1872; 27 Feb. 1877. 
 
 It is the duty of the mate to keep the log- 
 book. Dana, Seaman's Friend, 145, 200. 
 
 Every entry shall be signed by the master and 
 mate or some other one of the crew, and shall 
 be made as soon as possible after the occurrence 
 to which it relates. For keeping the log in an 
 improper manner the master is punishable by 
 fine ; Kev. Stat. §§ 4291, 4292. 
 
 LONDON AND MIDDLIiSEX SIT- 
 TINGS. 
 
 The niti prius sittings held at Westminster or 
 in the Guildhall of London for the trial of 
 causes arising for the most part in London or 
 Middlesex. 3 Steph. Com. 514 ; Stat. 36 & 37 
 Vict. c. 66. By the Judicature Act, 1875, the 
 sittings of the Court of Appeal and those in 
 London and Middlesex of the High Court of Jus- 
 tice are to be four in every year : (1) The 
 Michaelmas sittings, from Nov. 2' to Dec 21. (2) 
 The Hilary sittings, from Jan. 11 to the Wed- 
 nesday before, Easter. (3) The Easter sittings, 
 from the Tuesday after Easter week to the Fri- 
 day before Whitsunday. (4) The Trinity 
 sittings, from the Tuesday after Whitsun week 
 to the 8th of August. Moz. & W. 
 
 LONDON COURT OP BANK- 
 RUPTCY. By the Judicature Act of 1875, 
 sec. 9, this court is not to be consolidated 
 with the Supreme Court of Judicature. See 
 Court of Bankruptcy. 
 
 LONG PARLIAMENT. 
 
 The parliament which met November, 1640, 
 tinder Charles I., and was dissolved (informally) 
 by Cromwell on the 10th of April, 1653. The 
 same name is also given to the parliament which 
 met in 1661 and was dissolved Dec. 30, 1678. 
 The latter is sometimes called, by way of dis- 
 tinction, the " Long Parliament of Charles II." 
 Moz. & W. 
 
 LONG QUINTO, THE. An expression 
 used to denote part II. of the year book 
 which gives reports of cases in 6 Edw. IV. 
 Wall. Reporters. 
 
 LONG VACATION. The recess of the 
 English courts from August 10th to Octo- 
 ber 24th. 
 
 LOQUELA (Lat.). In Practice. An im- 
 parlance, 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 plead- 
 ings. Steph. PI. 29. 
 
 LORD'S DAT. Sunday. Co. Litt. 135. 
 See Maxims, Dies Dominicus. 
 
 LORD MAYOR'S COURT. In Eng. 
 Usb Law. One of the chief courts of special 
 and local jurisdiction in London. It is a 
 court of the queen, held before the lord mayor 
 and aldermen. Its practice and procedure 
 are amended and its powers enlarged by 20 & 
 21 Vict. c. 157. In this court, the recorder, 
 or, in his absence, the common Serjeant, pre- 
 sides as judge ; and from its judgments error 
 may be brought in the exchequer chamber. 
 3 Steph. Com. 449, note /. 
 
 LORD HIGH CHANCELLOR. See 
 Chancellor. 
 
 LOSS. In Insurance. The destruction 
 of or damage to the insured subject by the 
 perils insured against, according to the ex- 
 press provisions and construction of the con- 
 tract. 
 
 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 within the 
 policy unless it be the direct and immediate con- 
 sequence of one or more of these perils. Marsh. 
 Ins. 1, c. 12. 
 
 Loss under a life policy is simply the death of 
 the subject by a cause the risk of which is not 
 expressly excepted in the policy, and where the 
 loss is not fraudulent, as where one assured, who 
 assures the life of another for his own benefit, 
 procures the death. 
 
 Loss in insurance against fire must, under the 
 usual form of policy, be by the partial or total 
 destruction or damage of the thing insured by 
 fire. 
 
 In maritime insurance. In which loss by fire is 
 one of the risks usually included, the loss in- 
 sured against may be absolutely or constnictiyely 
 total, or a partial or general average loss, or a 
 particular average. 
 
 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 id. 102, 122, 317 ; 12 id. 170, 
 288 ; 8 Johns. 237 ; 10 id. 487 ; 5 Binn. 596; 
 2 S. & R. 553. 
 
 A total loss is such destruction of, or dam- 
 age to, the thing insured that it is of little or 
 no value to the owner. 
 
 Partial losses are sometimes denominated aver- 
 age 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 Avebask. 
 
 Total losses, in maritime insurance, are abso- 
 lutely such when the entire thing perishes or be- 
 comes of no value. Constructively, a loss may 
 become total where the value remaining is of 
 such a small amount that the whole may be sur- 
 rendered. See Abandonment. 
 
 Consult Phillips, Arnold, May, Insurance; 
 Pars. Mar. Law ; Total Loss. 
 
 LOST INSTRUMENT. The "copy" 
 of a lost instrument intended by the Act of 
 Congress of January 23, 1874 (for stamping 
 unstamped instruments), is a substantial copy, 
 or such a draft of the_ original instrument as 
 will identify the subject of the fax ; 82 Penn. 
 280. 
 
 LOST PAPERS. Papers which have 
 been so mislaid that they cannot be found 
 after diligent search. 
 
LOST, OR NOT LOST 
 
 127 
 
 LOUAGE 
 
 When deeds, wills, agreements, and the 
 like, have been lost, and it is desired to prove 
 their contents, the party must prove that he 
 has made diligent search, and in good faith 
 exhausted all sources of information accessi- 
 ble to him. For this purpose his own affidavit 
 is sufficient ; 1 Atk. 446 ; 1 Greenl. Ev. § 349. 
 On being satisfied of this, the court will allow 
 secondary evidence to be given of its contents. 
 See Evidence. 
 
 Even a will proved to be lost may be ad- 
 mitted to probate upon secondary evidence ; 
 1 Greenl. Ev. §§ 84, 509, 575 ; 1 P. D. 154 ; 
 s. c. 17 Bng. Kep. 45, note; declarations, 
 written or oral, made by a testator, both be- 
 fore and after the execution of the will, are 
 admissible as secondary evidence ; id. But 
 the fact of the loss must be proved by the 
 clearest evidence ; 8 Mete. 487 ; 2 Add. Ecfll. 
 223 ; 6 Wend. 173 ; 1 Hagg. Eccl. 115. ' 
 
 When a bond or other deed was lost, for- 
 merly the obligee or plaintiff was compelled 
 to go into equity to seek relief, because there 
 was no remedy at law, the plaintiff being re- 
 quired to make profert in his declaration ; 1 
 Ch. Cas. 77. 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 re- 
 covering at law, as well as in equity ; 3 Atk. 
 214; iVes. 341; 7 ic?. 19 ; 3 V. & B. 54. 
 
 When a negotiable note has been lost, 
 equity alone will, in the absence of statutory 
 provisions, grant relief. In such case the 
 claimant must tender an indemnity to the 
 debtor, and file a bill in chancery to compel 
 payment ; 7 B. & C. 90 ; Ev. & M. 90 ; 4 
 Taunt. 602; 2 Ves. Sen. 317; 16 Ves. 430. 
 
 LOST, OR NOT LOST. A phrase in 
 policies of insurance, signifying the contract 
 to be retrospective and applicable to any loss 
 within the specified risk, provided the same 
 is not already known to either of the parties, 
 and that neither has any knowledge or in- 
 formation not equally obvious or known to 
 the other. The clause has been adopted only 
 in maritime insurance ; though a fire or life 
 policy is not unfrequently retrospect, or, under 
 a different phraseology, by a provision that the 
 risk is to commence at some time prior to its 
 date. 1 Phill. Ins. § 925. 
 
 LOST PROPERTY. See FilfDER. 
 
 LOT. 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 actu- 
 ally belongs 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. etc. de la Nat. 
 §669. 
 
 Verdicts reached by a jury by drawing lots 
 will be set aside ; 1 Ky. L. J. 500. See also 
 1 Wash. Ty. 329 ; s. c. 34 Am. Rep. 808, n. 
 
 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-lois, 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. 
 
 The holder of a lot of ground in a cemetery 
 for burial purposes has not a property in the soil, 
 but only an easement, and takes such easement 
 subject to any change that the altered circum- 
 stances of the congregation or of the neighborhood 
 may render necessary ; 19 Am. L. Reg. 65 ; 88 
 Penn. 42 ; Washb. R. P. ; Boone, Corp. 
 
 LOTTERY. A scheme for the distribu- 
 tion of prizes by chance. Lotteries were 
 formerly often resorted to as a means of raising 
 money by states as well as individuals, and 
 are still authorized in many foreign countries 
 and in a few of our states, but have been 
 abolished as immoral in England, and gener- 
 erally throughout this country. They were 
 declared a nuisance and prohibited by 10 & 11 
 Will. III. c. 1 7, and foreign lotteries were for- 
 bidden to be advertised in England by the 6 & 
 7 Will. IT. c. 66 ; 1 C. B. 974 ; Brown, Diet. 
 As to whit constitutes a lottery : the disposal 
 of any species of property by any of the schemes 
 or games of chance popularly regarded as inno- 
 cent, comes within this term of the law. Raf9es 
 at fairs, etc., are as clearly violations of the 
 criminal law as the most elaborate and carefully 
 organized lotteries; 8 Phila. 457. Thus, the 
 American Art Union is a lottery ; 8 N. T. 228, 
 240 ; so a " gift-sale " of books ; 33 N. H. 329 ; 
 so "prize-concerts;" 97 Mass. 583; and "gift- 
 exhibitions ;" 32 N. J. L. 398 ; 12 Abb. Pr. N. s. 
 210 ; S9 111. 160 ; 62 Ala. 334 ; 74 N. T. 63. The 
 payment of prizes need not be in money; 7 
 N. Y. 228. 
 
 The legislature of a state cannot, by charter- 
 ing a lottery company, defeat the wUl of the 
 people expressed in the constitution, in relation 
 to the continuance of such business in their 
 midst ; hence, a provision of a state constitution 
 prohibiting the legislature from authorizing any 
 lottery, passed subsequently to the chartering a 
 lottery, is not unconstitutional as impairing the 
 obligation of contracts ; 101 U. S. 814 ; overruling 
 3 Woods, 222, and 66 Ind. 588. Nor is a statute 
 which prohibits lotteries rendered inoperative, 
 because it virtually deprives a foreign govern- 
 ment of the privilege of selling its bonds within 
 the state ; 31 Hun, 466. 
 
 Under the act of 13 July, 1876, Rev. Stat. 
 § 3894, any person who shall deposit or send lot- 
 tery circulars by mail is punishable by fine ; 14 
 Blatchf.245; and a court of eqvuty will not grant 
 relief where letters addressed to the secretary of 
 a lottery company are detained by a postmaster 
 under the direction of the postmaster-general, If 
 the pleadings fail to show that the letters had no 
 connection with the lottery business; 1 Fed. 
 Rep. 417; see id. 426. The act of 8 June, 1873, 
 Rev. Stat. § 4041, authorizes the postmaster- 
 general to forbid the payment by any postmaster 
 of a money order to any person engaged in the 
 lottery business. But this does not authorize 
 any person to open any letter not addressed to 
 himself. Lottery ticket dealer is defined by the 
 act of July 13, 1866, § 9 ; 14 Stat, at L. 116. 
 
 LOXTAGE. In French Law. The con- 
 tracf of hiring and letting. It may be of 
 things or of labor. (1) Letting of things. 
 
LOUISIANA 
 
 128 
 
 LOUISIANA 
 
 (a) Baild layer, the letting of houses ; (6) 
 Bail d ferme, the letting of land ; (2) Let- 
 ting of labor,— (_a) Loyer, the letting of 
 personal service ; (b) Bail d chaptel, the 
 letting of animals ; Brown, Diet. 
 
 LOUISIANA. The name of one of the 
 states of the United States of America. 
 
 It was first explored by the French in 1682, 
 under Robert Chevalier de la Salic, and named 
 Louisiana, in honor of Louis XIV. In 1699, a 
 French settlement was begun at Iberville by 
 Lemoyne d'Iberville. His efforts were followed 
 up in 1712 by Anthony Crozat, a man of wealth, 
 who upheld the trade of the country for several 
 years. About 1717 all his interest in the province 
 was transferred to the " Western Company," a 
 chartered corporation, at the head of which was 
 the celebrated John Law, whose speculations in- 
 volved the ruin of one-half the French nobility. 
 In 1733 the " Company " resigned all their rights 
 to the Crown, by whom the whole of Louisiana 
 was ceded to Spain in 1762. By the treaty of St. 
 Ildefouso, signed October 1, 1800, Spain re-con- 
 veyed it to France, from whom it was purchased 
 by the United States, April 30, 1803, for $15,000,- 
 000. Louisiana was admitted into the Union by 
 an act of congress, approved April 8, 1812. 
 
 It covers a part of the territory ceded by 
 France to the United States, and was admitted 
 into the Union with the following limits : Begin- 
 ning 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 said river to lakes Maurepas and Pont- 
 chartrain to the Gulf of Mexico ; thence bounded 
 by said Gulf to the place of beginning, including 
 all Islands within three leagues of the coast. 
 These limits were enlarged by virtue of an act 
 of congress, with the consent of the legislature 
 of the state, April 14, 1812, by adding all that 
 tract of country comprehended within the follow- 
 ing bounds, to wit : Beginning with the junction 
 of the Iberville with the river Mississippi ; thence 
 along the middle of the Iberville, the river 
 Amite, and the lakes Maurepas and Pontchar- 
 train to the eastern mouth of the Pearl River ; 
 thence up the eastern branch of Pearl Elver to 
 the thirty-first degree of north latitude ; thence 
 along the said degree of latitude to the river 
 Mississippi ; thence down the said river to the 
 place of beginning. The territory thus added to 
 the limits of the state had, up to that time, been 
 subject to the dominion of Spain, and the par- 
 ishes into which it has been divided are, for this 
 reason, still called in popular language "the 
 Florida Parishes." 
 
 The first constitution of Louisiana was adopted 
 on January 22, 1812, and was substantially copied 
 from that of Kentucky. This constitution was 
 superseded by that of 184.5, which was in its 
 turn replaced by the one adopted July 31, 1852. 
 Next in order came the constitution of 1864, 
 which yielded to that of 1868, which last was 
 finally succeeded by the constitution adopted 
 July 23, 1879, now in force. 
 
 Every male citizen of the United States, and 
 every male person of foreign birth who has been 
 naturalized, or who may have legally declared 
 'his intention to become a citizen of the United 
 States before he ofifers to vote, who is twenty-one 
 years old or upwards, is an elector, and is entitle'd 
 to vote at any election by the people, provided he 
 
 be : 1. An actual resident of the state, at least one 
 year next preceding the election at which he 
 oilers to vote. 2. An actual resident of the par- 
 ish in which he offers to vote, at least six months 
 next preceding the election. 3. An actual resi- 
 dent of the ward or precinct in which he offers 
 to vote, at least thirty days next preceding the 
 election. 
 
 The Legislative Potveb is vested in a gen- 
 eral assembly which consists of a senate and 
 house of representatives. Every elector is eligi- 
 ble to a seat in the house of representatives, and 
 every elector who has reached the age of twenty- 
 five years is eligible to the senate. No person is 
 eligible to the general assembly, unless at the 
 time of his election he was a citizen of the state 
 for five years, and an actual resident of the dis- 
 trict or parish from which he may be elected, for 
 two years immediately preceding his election. 
 All members of the general assembly are elected 
 for a term of four years. Representation in the 
 house of representatives is equal and uniform, 
 and is regulated and ascertained by the total 
 population. A representative number is fixed 
 and each parish and election district has as many 
 representatives as the aggregate number of its 
 population entitles it to, and an additional repre- 
 sentative for any fraction exceeding one-half the 
 representative number. The number of repre- 
 sentatives can not be more than ninety-eight nor 
 less than seventy ; but each parish must have at 
 least one representative. The state is divided 
 into senatorial districts. The number of senators 
 can not be more than thirty-six nor less than 
 twenty-four, and they are apportioned by the con- 
 stitution among the senatorial districts according 
 to the total population contained in the several 
 districts. 
 
 The Executive Powee consists of a governor, 
 lieutenant-governor, auditor, treasurer, and 
 secretary of state. 
 
 The supreme executive power of the state is 
 vested in the governor. He is elected by the 
 qualified electors for representatives at the time 
 and place of voting for representatives, and holds 
 office during four years. If two persons have 
 an equal and the highest number of votes, a selec- 
 tion is to be made between these by the joint 
 vote of the general assembly. The governor 
 must be thirty years of age ; must have been ten 
 years a citizen of the United States, and resident 
 of the state for the same space and time preced- 
 ing his election ; and must not be a member of 
 congress or hold oflSce under the United States at 
 the time of or within six months immediately 
 preceding the election for such oflice. He is 
 commander-in-chief of the militia of the state ex- 
 cept when they are called into the active service of 
 the United States ; is to take care that the laws 
 be faithfully executed ; must give to the general 
 assembly information respecting the situation of 
 the state, and recommend such measures as he 
 may deem expedient ; has power to grant re- 
 prieves for all oflFences against the state, and, ex- 
 cept in cases of impeachment or treason, has, 
 upon the recommendation in writing of the lieu- 
 tenant-governor, attorney-general, and presiding 
 judge of the court before which conviction was 
 had, or any two of them, power to grant pardons, 
 commute sentences, and remit fines and forfeit- 
 ures after conviction. In cases of treason he 
 may grant reprieves until the end of the next 
 session of the general assembly, in which body 
 the power of pardoning is vested. He nominates, 
 and by and with the advice and consent of the 
 senate appoints all officers whose appointments 
 are not expressly otherwise provided for by the 
 [ constitution or the legislature ; has power to fill 
 
LOUISIANA 
 
 129 
 
 LOUISIANA 
 
 vacancies during the recess of the senate, pro- 
 vided he appoint no one whom the senate has re- 
 jected for the same office. He may require in- 
 formation In writing from the officers in the 
 executive department, upon any subject relating 
 to the duties of their respective offices ; and has 
 power on extraordinary occasions to 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. 
 He has the veto power, but must return the bill 
 vetoed, with his objections, to the house where it 
 originated, and it may still become a law, by a 
 vote of two-thirds of the members of that house. 
 (Const, arts. 58-79). 
 
 The lieutenant'govemor is elected by the people 
 at the same time, for the same term, and must 
 possess the same qualifications as the governor. 
 He is president of the senate by virtue of his 
 office, but has only a casting vote therein. In 
 case of the impeachment of the governor, his 
 removal from office, death, refusal or inability to 
 qualify, disability, resignation, or absence from 
 the state, the powers and duties of the office de- 
 volve upon the lieutenant-governor for the resi- 
 due of the term, or until the governor absent or 
 impeached shall return or be acquitted, or the 
 disability be removed. 
 
 The treasurer, auditor, secretary of state, and 
 also the attorney-general, are elected by the quali- 
 fied electors of the state for the term of four years. 
 
 The JuDioiiL Power is vested in a supreme 
 court, in courts of appeal, in district courts, and 
 in justices of the peace. 
 
 The supreme court is composed of one chief 
 justice and four associate justices, appointed by 
 the governor by and with the advice and consent 
 of the senate. They must be citizens of the 
 United States, and of the state, over thirty-five 
 years of age, learned in the law, and must have 
 practised law in the state for ten years preceding 
 their appointment. The judges of the first su- 
 preme court, organ^ed under the constitution of 
 1879, were appointM as follows : The chief jus- 
 tice for the term of twelve years ; one associate 
 justice for the term of ten years ; one associate 
 justice for the term of eight years ; one for the 
 term of six years ; and one for the term of four 
 years. After the expiration of the short term a 
 vacancy will occur every two years. The state 
 is divided into four supreme court districts, and 
 the court is composed of judges appointed from 
 those districts. The supreme court has appel- 
 late jurisdiction, which extends to all cases 
 where the matter in dispute or the fund to 
 be distributed, whatever may be the amount 
 therein claimed, exceeds one thousand dollars 
 exclusive of interest ; to suits for divorce and 
 separation from bed and board, and to all cases 
 in which the constitutionality Or legality of anjr 
 tax, toll, or impost whatever, or of any fine, 
 forfeiture, or penalty imposed by a municipal 
 corporation is In contestation, whatever may be 
 the amount thereof, and in such oases, the ap- 
 peal on the law and the facts shall be directly 
 from the court in which the case originated to 
 the supreme court; and to criminal cases on 
 questions of law alone, whenever the punish- 
 ment of death or imprisonment at hard labor 
 may be inflicted, or a fine exceeding three hun- 
 dred dollars is actually imposed. Its civil 
 remedial jurisdiction extends to both law and 
 facts. It has appellate jurisdiction only, but 
 exercises control and general supervision over all 
 inferior courts ; and may issue writs of habeas 
 corpus, certiorari, prohibition, mandamus, quo 
 warranto, and other remedial writs. 
 
 Courts of Appeal. — The state, with the exception 
 Vol. II.— 9 
 
 of the Parish of Orleans, is divided into five cir- 
 cuits, in each of which there is a court of appeals, 
 composed of two judges elected by the two houses 
 of the general assembly in joint session — one judge 
 for a term of eight years, and one for a term of 
 four years. The judges must be learned in the 
 law, and must have resided and practised law in 
 the state for six years, and must have been actual 
 residents of the circuit from which they are 
 elected, for at last two years next preceding their 
 election. This court of appeals has appellate 
 jurisdiction which extends to all cases civil or 
 probate, when the matter in dispute or fund to 
 be distributed exceeds two hundred dollars ex- 
 clusive of interest, and does not exceed one 
 thousand dollars exclusive of interest. This 
 jurisdiction is appellate only, but the judges 
 have power to grant writs of habeas corpus within 
 their circuits, and may also issue remedial writs 
 in aid of their appellate jurisdiction. Whenever 
 the judges composing the courts of appeal con- 
 cur, their judgment is final ; in case of disagree- 
 ment, the judgment appealed from stands af- 
 firmed. 
 
 District Courts. — The state (with the excep- 
 tion of the Parish of Orleans) is divided into 
 twenty-six judicial districts, in each of which 
 there is a district court, presided over by one 
 judge. The district judges are elected for the 
 term of four years by the people of their respec- 
 tive districts, where they must have resided for 
 two years next preceding their election. They 
 must be learned in the law, and must have prac- 
 tised law in the state for five years previous to 
 their election. The district courts have original 
 jurisdiction in all civil matters where the amount . 
 in dispute exceeds fifty dollars, exclusive of in- 
 terest. They have unlimited original jurisdic- 
 tion in all criminal, probate, and succession 
 matters, and when a succession is a party de- 
 fendant ; they have also jurisdiction of appeals 
 from justices of the peace in all matters where 
 the amount in controversy exceeds ten dollars 
 exclusive of interest. 
 
 Courts of the Parish and City of New Orleans. 
 — There are in the Parish of Orleans : — 
 
 1. A court of appeals, the jurisdiction of 
 which is of the same nature as, and coextensive 
 with that of the courts of appeal in the other 
 parishes. The appeals to this court are upon 
 questions of law alone in all cases involving less 
 than five hundred dollars exclusive of Interest, 
 and upon the law and the facts in other cases. 
 The court is presided over by two judges, who 
 must have the same qualifications, and who are 
 elected in the same manner and for the same 
 terra of office as the judges of the other appel- 
 late courts in the state. 
 
 2. Two district courts, the civil district court 
 and the criminal district court. The former 
 consists of five, and the latter of two judges, 
 who must have the qualifications prescribed for 
 district judges throughout the state, and are ap- 
 pointed by the governor by and with the advice 
 of the senate. Three judges of the civil district 
 court are appointed for four years, and two for 
 eight years ; one judge of the criminal district 
 court for eight years, and the other for four 
 years. The civil district court has exclusive and 
 general probate, and exclusive civil jurisdiction 
 in all cases where the amount in dispute exceeds 
 one hundred dollars exclusive of interest. The 
 criminal district court has general criminal juris- 
 diction only. 
 
 •Tustiees of the Peace. — ^In each parish (that of 
 Orleans excepted) there are justices of the peace 
 who are elected for the term of four years. 
 They have exclusive original jurisdiction in all 
 civil matters when the amount in dispute does 
 
LOW-WATER MARK 
 
 130 
 
 LUCID INTERVALS 
 
 not exceed fifty dollars excluBlve of interest, and 
 original jurisdiction concurrent with the district 
 court when the amount in dispute exceeds fifty 
 dollars, and does not exceed one hundred dollars 
 exclusive of interest. They have, also, criminal 
 jurisdiction as committing magistrates, with 
 power to bail or discharge in cases not capital, 
 or necessarily punishable at hard labor. 
 
 The justices of the peace ceased to exist in the 
 parish of Orleans with the adoption of the con- 
 stitution of 1879, and in their stead were substi- 
 tuted the city courts— four in number— presided 
 over by judges having all the qualifications re- 
 quired for district judges, and elected by the 
 people of the parish for the term of four years. 
 They have exclusive and final jurisdiction over 
 all sums not exceeding one hundred dollars 
 exclusive of interest. 
 
 System oi' Laws. Louisiana is governed by 
 the civil law, unlike the other states of the 
 Union. The first body of civil laws was adopted 
 in 1808, and was substantially the same as the 
 Code Napoleon, with some modifications derived 
 from the Spanish law . It was styled the ' ' Digest 
 of the Civil Law," and has been afterwards fre- 
 quently revised and enlarged to suit the nume- 
 rous statutory changes in the law, and since 
 1825 has become known as the " Civil Code of 
 Louisiana.. There is no criminal offence in this 
 state but such as is provided for by statute ; the 
 law does not define crimes, but prescribes their 
 punishment by reference to their name ; for defi- 
 nitions we turn to the common law of England. 
 The civil code lays down the general leading 
 principles of evidence, and the courts refer to 
 treatises on that branch of the law for the devel- 
 opment of those principles in their application 
 to particular cases, as they arise in practice. 
 Most of these rules have been borrowed from 
 the English law, as having a more solid founda- 
 tion in reason and common sense. The usages 
 of trade sanctioned by courts of different coun- 
 tries at difi'erent times, or the lex mereatoria, 
 also exist entirely distinct and independent of 
 the civil code, and are recognized and duly en- 
 forced. When Louisiana was ceded to the United 
 States, some of the lawyers from the old states 
 spared no eflTorts to introduce the laws with 
 which they were familiar, and of which they 
 sought to avail themselves, rather than undergo 
 the toil of learning a new system in a foreign 
 language. But of those conversant with the 
 common law, the most eminent did not favor its 
 introduction as a general system to the exclusion 
 of the civil law." 7 Ann. 39.5. The laws of the 
 state on public and personal rights, criminal and 
 commercial matters were assimilated to those of 
 the other states ; but in relation to real property 
 and its tenures, the common law or English 
 equity system has never had place in Louisiana. 
 
 LOW-'WATER MARK. That part of 
 the shore of the sea to which the waters re- 
 cede when the tide is lowest ; i. e. the line to 
 which the ebb-tide usually recedes, or the or- 
 dinary low-water mark unaffected by drought ; 
 26 Me. 384; 60 Penn. 339. iSee High- 
 Water Mark; River; Sea-Shore; Dane, 
 Abr.; 1 Halst. Ch. 1. 
 
 LOTAL. Legal, or according to law : as, 
 loyal matrimony, a lawful marriage. 
 
 " Vkcore n'est loyal a homme defaire un tort " 
 (it is never lawful for a man to do a wrong). 
 Dyer, fol. 36, § 38. "^< per curiam n'est loyal " 
 (and it was held by the court that it was not 
 lawful). T. Jones, 24. Also Bpellei loayl. Dy. 
 
 36, § 38 ; Law Fr. & Lat. Diet. The Norman 
 spelling is " loyse." Kelh. Norm. Diet. 
 
 Faithful to a prince or superior ; true to 
 plighted faith or duty. Webster, Diet. 
 
 LOYALTY. Adherence to law. Faith- 
 fulness to the existing government. 
 
 LUCID INTERVALS. In Medical 
 Jurisprudence. Periods in which an insane 
 person is so far free from his disease that the 
 ordinary legal consequences of insanity do not 
 apply to acts done therein. 
 
 Correct notions respecting the lucid interval 
 are no less necessary than correct notions respect- 
 ing the disease itself. By the earlier writers on 
 insanity, lucid intervals were regarded as a far 
 more common event than they have been found 
 to be in recent times. They were also supposed 
 to be characterized by a degree of mental clear- 
 ness and vigor not often witnessed now. These 
 views of medical writers were shared by distin- 
 guished legal authorities, by whom the lucid in- 
 terval was described as a complete, though tem- 
 porary, restoration. D'Aguesseau, in his plead- 
 ing in the case of the Abb^ d'OrWans, says, "It 
 must not be a superficial tranquillity, a shadow 
 of repose, but, on the contrary, a profound tran- 
 quillity, a real repose ; it must not be a mere ray 
 of reason, which makes its absence more appar- 
 ent when it is gone, — not a flash of lightning, 
 which pierces through the darkness only to ren- 
 der it more gloomy and dismal, — not a glimmer- 
 ing which joins the night to the day, — ^but a 
 perfect light, a lively and continued lustre, a full 
 and entire day interposed between the two sepa- 
 rate nights of the fury which precedes and fol- 
 lows it ; and, to use another image, it is not a 
 deceitful and faithless stillness which follows or 
 forebodes a storm, but a sure and steadfast tran- 
 quillity for a time, a real calm, a perfect serenity. 
 In fine, without looking for so many metaphors 
 to represent our idea, it must not be a mere 
 diminution, a remission of Me complaint, but a 
 kind of temporary cure, an intermission so 
 clearly marked as in every respect to resemble 
 the restoration of health." Eothier, Obi. Evans 
 ed. 579. So Lord Thurlow says, by a perfect 
 interval, " I do not mean a cooler moment, an 
 abatement of pain or violence or of a higher 
 state of torture, — a mind relieved from excessive 
 pressure ; but an interval in which the mind, 
 having thrown oflF the disease, had recovered its 
 general habit." 3 Bro. Ch. 234. That there 
 sometimes occurs an intermission in which the 
 person appears to be perfectly rational, restored, 
 in fact, to his proper self, is an unquestionable 
 fact. It is equally true that they are of rare 
 occurrence, that they continue but for a very 
 brief period, and that with the apparent clear- 
 ness there is a real loss of mental force and 
 acuteness. In most cases of insanity there may 
 be observed, from time to time, a remission of 
 the symptoms, in which excitement and violence 
 are replaced by quiet and calm, and, within a 
 certain range, the patient converses correctly 
 and properly. A superficial observer might be 
 able to detect no trace of disease ; but a little 
 further examination would show a confusion of 
 ideas and singularity of behavior, indicative of 
 serious, though latent, disease. In this condi- 
 tion the patient may hold some correct notions, 
 even on a matter of business, and yet be quite 
 incompetent to embrace all the relations con- 
 nected with a contract or a will, even though no 
 delusion were present to warp his judgment. 
 The revelations of patients after recovery furnish 
 indubitable proof that during this remission of 
 the symptoms the mind is in a state of confusion 
 
LUCID INTERVALS 
 
 131 
 
 LUCKI CAUSA 
 
 utterly unreliable for any business purpose. 
 Georget, Des Mai. Men. 46; Reid, Essays on 
 Hypochondriacal Affections, 31 Essay; Combe, 
 Men. Derang. 241 ; Ray, Med. Jur. 376. 
 
 Of late years — whatever may have been the 
 earlier practice — courts have not required that 
 proof of a lucid interval which consists of com- 
 plete restoration of reason, as described above. 
 They have been satisfied with such proof as was 
 furnished by the transaction in question. They 
 cared less to consider the general state of mind 
 than its special manifestations on a particular 
 occasion. In 1 Phill. Lect. 90, the court said, 
 " I think the strongest and beat proof that can 
 arise as to a lucid interval is that which arises 
 from the act itself ;" if that " is a rational act, 
 rationally done, the whole case is proved ;" "if 
 she could converse rationally, that is a lucid in- 
 terval." 2 C. & P. 415. This is a mere begging 
 of the question, which is whether the act so 
 rational and so rationally done — and not for that 
 reason necessarily incompatible with insanity — 
 was or was not done in a lucid interval. Persons 
 very insane, violent, and full of delusions fre- 
 quently do and say things evincing no mark of 
 disease, while no one supposes that there is any 
 lucid interval in the case. Correeter views pre- 
 vailed in 3 Hagg. 433, where the court pro- 
 nounced against two wills which showed no trace 
 of folly, because the testator had been con- 
 fessedly so insane as to require an attendant from 
 an asylum, until within a few months of the 
 date of the last will, and had manifested delu- 
 sions during the period that intervened between 
 the two wills in question. "It is clear," said 
 the court, " that persons essentially insane may 
 be calm, may do acts, hold conversations, and 
 even pass in general society as perfectly sane. It 
 often requires close examination by persons 
 skilled in the disordei', to discover and ascertain 
 whether or not the mental derangement is re- 
 moved and the mind become again perfectly 
 sound. Where there is calmness, where there is 
 rationality on ordinary subjects, those who see 
 the party usually conclude that his recovery is 
 perfect. . . . When there is not actual re- 
 covery, and a return to the management of him- 
 self and his concerns by the unfortunate indivi- 
 dual, the proof of a lucid interval is extremely 
 difficult." 
 
 In criminal cases, the proof of a lucid interval 
 must be still more difficult, in the very nature of 
 the ease. For although the mental manifesta- 
 tions may be perfectly right, it cannot be sup- 
 posed that the brain has resumed its normal con- 
 dition. In its outward expression, insanity, like 
 many other nervous diseases, is characterized by 
 a certain periodicity, whereby the prominent 
 symptoms disappear for a time, only to return 
 within a very limited period. An epileptic, in 
 the intervals between his fits, may evince to 
 the closest observer not a single trace of mental 
 or bodily disease ; and yet, for all that, nobody 
 supposes that he has recovered from his malady. 
 No more does a lucid interval in a case of in- 
 sanity imply that the disease has disappeared 
 because its outward manifestations have ceased. 
 There unquestionably remains an abnormal 
 condition of the brain, by whatever name it 
 may be called, whereby the power of the mind 
 to sustain provocations, to resist temptations, 
 or withstand any other causes of excitement, is 
 greatly weakened. 
 
 Lucid intervals, properly so called, should not 
 be confounded with those periods of apparent 
 recovery which occur between two successive at- 
 tacks of mental disease, nor with those trans- 
 itions from one phasis of insanity to another, in 
 which the individual seems to be in his natural 
 
 condition. They may not be essentially different, 
 but the suddenness and brevity of the former 
 would be likely to impart to an act a moral com- 
 plexion very different from that which it would 
 bear if performed in the larger and more indefi- 
 nite intermissions of the latter. Still, great 
 forbearance should be exercised towards persons 
 committing criminal acts while in any of these 
 equivocal conditions. Those who have suffered 
 repeated attacks of mental disease habitually 
 labor under a degree of nervous irritability, 
 which renders them peculiarly susceptible to 
 many of those incidents and Influences which 
 lead to crime. The law may make no distinction, 
 but executive and judicial tribunals are generally 
 intrusted with discretionary powers, whereby 
 they are enabled to apportion the punishment 
 according to the moral guilt of the party. Ray, 
 Med. Jur. chap. Luc. Int. 
 
 It isi the duty of the party who contends for a 
 lucid interval, to prove it ; for a person once in- 
 sane is presumed so, until it is shown that be had 
 a lucid interval, or has recovered ; Swinb. 77 ; 
 Co. Litt. 185, n. ; 3 Bro. Ch. 443 ; 1 Const. 225 ; 
 1 Pet. 163 ; 1 Litt. 102 ; and yet, on the trial of 
 Hadfield, whose insanity, both before and after 
 the act, was admitted, the court. Lord Kenyon, 
 said that, " were they to run into nicety, proof 
 might be demanded of his insanity at the precise 
 moment when the act was committed." See In- 
 sanity. 
 
 LUCRATIVE StrCCESSION. In 
 Scotch Law. The passive title o{ proeceptio 
 hoereditatis, by which, if an heir apparent re- 
 ceive gratuitously a part, however .small, of 
 the heritage which would come to him as heir, 
 he is liable for all the grantor's precontracted 
 debts. Erskine, Inst. 3. 8. 87-89; Stair, 
 Inst. 3. 7. 
 
 LTTCRI CAtTSA (Lat. for the sake of 
 gain). In Criminal La-vr. A term descrip- 
 tive of the intent with which property is 
 taken in cases of larceny. 
 _ According to the tenor of the latest authori- 
 ties, lucri causa would appear to be imma^ 
 terial; though, in recent cases, judges have 
 sometimes thought it advisable not to deny, 
 but rather to confess and avoid it, however 
 sophistically. The prisoner, a servant of A, 
 applied for, and received, at the post-office, 
 alt A's letters, and delivered them to A, with 
 the exception of one, which the prisoner de- 
 stroyed in the hope of suppressing inquiries 
 respecting her character. This was held to 
 be a larceny; "for, supposing that it was a 
 necessary ingredient in that crime that it 
 should be done lucri cawsd (which was no^ 
 admitted), there were sufficient advantages to 
 be obtained by the prisoner in making away 
 with the written character." 1 Den. C. C. 
 180. In a case where some servants in hus- 
 bandry had the care of their master's team, 
 they entered his granary by means of a false 
 ke^, and took out of it two bushels of beans, 
 which they gave to his horses. Of eleven 
 judges, three were of opinion that there was 
 no felony. Of the eight judges who were for 
 a conviction, some (it is not stated how many) 
 alleged that by the better feeding of the 
 horses the men's labor was lessened, so that 
 they took the beans to give themselves ease^ 
 
LUCRUM CESSANS 
 
 182 
 
 MACEDONIAN DECREE 
 
 which was, constructively at least, lucri 
 causd; Russ. & R. 307. When a similar 
 case afterwards came to be decided by the 
 judges, it Tvas said to be no longer res integra; 
 1 Den. C. C. 193. The rule with regard to 
 the lucri causa, is stated by the English crim- 
 inal law commissioners in the following terms : 
 " The ulterior motive by which the taker is 
 influenced in depriving the owner of his pro- 
 perty altogether, whether it is to benefit him- 
 self or another, or to injure any one by the 
 taking, is immaterial." Co. 17. In this 
 country, these cases have not been considered 
 as authority; 18 Ala. 461. 
 
 But the American courts have not discussed 
 very much the question of lucri causa. " The 
 rule is now well settled, that it is not necessary 
 to constitute larceny that the tiking should be 
 in order to convert the thing stolen to the pecu- 
 niary gain of the taker ; and that it is sufficient 
 if the taking be fraudulent, and with an intent 
 wholly to deprive the owner of the property." 
 35 Miss. 2M ; 14 Ind. 36 ; 52 Ala. 411. 
 
 See 16 Miss. 401 ; 10 Ala. n. s. 814; 3 
 Strobh. 508; 1 C. & K. 532; C. & M. 547; 
 Inst. lib. 4, t. 1, § 1 ; 2 Bish. C. L. §§ 842-848. 
 
 LUCRUM CESSANS. In Scotch 
 La^v. A cessation of gain. Opposed to 
 damnum emergens, an actual loss. 
 
 IiUGGAG-E. Such articles of personal 
 comfort afld conveniences as travellers usually 
 find it desirable to carry with them. This 
 term is synonymous with baggage : the latter 
 being in more common use in this country, 
 while the former seems to be almost exclu- 
 sively used in England. See Baggage. 
 
 LUNACY. See Insanity. 
 
 LUNAR. Belonging to or measured by 
 the moon. 
 
 LUNAR MONTH. See Month. 
 
 LUNATIC. One who is insane. See 
 Insanity ; De Lunatico Inquieendo. 
 
 LUSHBORO'W. A counterfeit coin 
 made abroad like English money, and brought 
 in during Edward lll.'a reign. To bring any 
 of it into the realm was made treason. Cowel. 
 
 LTEF-GELD. In Sazon Law. Leave- 
 money. A small sum paid by customary ten- 
 ant for leave to plough, etc. Cowel ; Somn. 
 on Gavelk. p. 27. 
 
 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. See Gkant ; Livery of Seibik ; 
 Seisin. 
 
 LYING IN WAIT. Being in ambush 
 for the purpose of murdering another. 
 
 Lying in wait is evidence of deliberation 
 and intention. Where murder is divided into 
 degrees, as in Pennsylvania, lying in wait is 
 such evidence of malice that it makes the kill- 
 ing, when it takes place, murder in the first 
 degree. See Dane, Abr. Index. 
 
 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 offience. In Eng- 
 land this is called Lidford Law. 
 
 All who consent to the infliction of capital 
 punishment by lynch law are guilty of murder in 
 the first degree when not executed in hot blood. 
 The act strikingly combines the distinctive 
 features of deliberation and intent to take life ; 
 38 Conn. 126 ; 1 Whart. Cr. Law, § 399. 
 
 Lynch law differs from mob law in disregarding 
 the forms of ordinary law, while intending to 
 maintain Its substance; while mob law disre- 
 gards both. 
 
 M. 
 
 M. The thirteenth letter of the alphabet. 
 
 Persons convicted of manslaughter, in Eng- 
 land, were formerly marked with this letter 
 on the brawn of the thumb. 
 
 This letter was sometimes put on the face of 
 treasury notes of the United States, and sig- 
 nifies that the treasury note bears interest at 
 the rate of one mill per centum, and not one 
 per Centura interest. 
 
 MACE BEARER. In EngUsh Law. 
 One who carries the mace, an ornamented 
 staff", before certain functionaries. In Scot- 
 land an officer attending the court of session, 
 and usually called a macer. 
 
 MACE-GREPP. In old English law, one 
 who willingly bought stolen goods, especially 
 food. Brit. c. 29. 
 
 MACE-PROOP. 
 
 Wharton. 
 
 Secure against arrest. 
 
 MACEDONIAN DECREE. In Roman 
 Law. A decree of the Roman sena( e, which 
 derived its name from that of a certain usurer, 
 who was the cause of its being made, in con- 
 sequence of his exactions. 
 
 It was intended to protect sons who lived 
 under the paternal jurisdiction from the un- 
 conscionable contracts which they sometimes 
 made on the expectations after their fathers' 
 deaths ; another, and perhaps the principal, 
 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, § 4 ; Fonbl. Eq. b. 1, c. 2, § 12, note. See 
 Catching Bargain ; Post Obit. 
 
MACHINATION 
 
 133 
 
 MAGISTRATE 
 
 MACHINATION. The act by which 
 some plot or conspiracy is set on foot. 
 
 MACHINE. In Patent Law. Any 
 contrivance which is used to regulate or mod- 
 ify the relations between force, motion, and 
 weight. 
 
 In its broadest signification, this term is ap- 
 plied to any contrivance which is used to regu- 
 late or modify the relations between force, mo- 
 tion, and weight. " The term machine includes 
 every mechanical device or combination of 
 mechanical powers and devices to perform some 
 function and produce a certain effect or result;" 
 15 How. 267 ; but when the effect is produced by 
 chemical action, or by the application of some 
 element or power of nature, or of one substance 
 to another, such methods or operations are called 
 processes ; 4 Fish. Fat. Gas. 17.5. 
 
 What are sometimes called the simple 
 machines are six in number : the lever, the 
 pulley, the wheel and axle, the wedge, the 
 screw, and the inclined plane. These are 
 sometimes known as the mechanical powers, 
 though neither these nor any other machinery 
 can ever constitute or create power. They 
 can only economize, control, direct, and ren- 
 der it useful. 
 
 Machines, as generally seen and under- 
 stood, are compounded of these simple ma- 
 chines in some of their shapes and modiiica- 
 tions. Such a combination as, when in 
 operation, will produce some specific final 
 result, is regarded as an entire machine. It 
 is so treated in the patent law ; for, although 
 a new machine, or a new improvement of a 
 machine, is an invention, and although only 
 one invention can be included in a single 
 patent, still several different contrivances, 
 each of which is in one sense a machine, may 
 all be separately claimed in a single patent, 
 provided they all contribute to improve or to 
 constitute one machine and are intended to 
 produce a single ultimate result ; and a new 
 combination of machines is patentable 
 whether the machines themselves be new or 
 old. 3 Wash. C. C. 69 ; 1 Stor. 273, 568 ; 
 2 id. 609; 1 Mas. 474; 1 Sumn. 482; 3 
 Wheat. 454 ; 2 Fish. Pat. Cas. 600. 
 
 MACHINERY. A more comprehensive 
 term than machine ; including the appurten- 
 ances necessary to the working of a machine ; 
 111 Mass. 540 ; 108 id. 78 ; as the mains of 
 a gas company ; 1 2 Allen, 75 ; or even a roll- 
 ing-mill ; 2 Sandf. 202. The question of 
 what machinery will pass under a mortgage of 
 realty has been variously decided and will be 
 found discussed under Pixtcees. The cases 
 are collected in 11 Am. Rep. 314, note, 
 and 24 id. 726, note. 
 
 MADE KNOWN. Words used as a 
 return to a writ of scire facias when it has 
 been served on the defendant. 
 
 MAEGrBOTE. A recompense for the slay- 
 ing of a kinsman. Cowel. 
 
 MA6ISTER (Lat.). A master; a ruler; 
 one whose learning and position make him 
 superior to others ; thus, one who has at- 
 tained to a high degree or eminence in science 
 
 and literature is called a master ; as, master 
 of arts. 
 
 MAGISTER AD FACULTATES 
 (Lat.). In English Ecclesiastical Law. 
 The title of an officer who grants dispensa- 
 tions : as, to marry, to eat flesh on days pro- 
 hibited, and the like. Bacon, Abr. Eccles. 
 Courts (A 5.) 
 
 MAGISTER NAVIS (Lat.). In CivU 
 Law. Master of a ship ; he to whom the 
 whole care of a ship is given up, whether 
 appointed by the owner, or charterer, or 
 master. L. 1, ff". de exercit. ; Idem, § 3 ; 
 Calvinus, Lex. ; Story, Ag. § 36. 
 
 MAGISTER SOCIETATIS (Lat.). In 
 Civil Law. Managing partner. Vicat, Voc. 
 Jur. ; Calv. Lex. Lspecially used of an 
 ofiicer employed in the business of collecting 
 revenues, who had power to call together the 
 tything-men (decumands), as it were a senate, 
 and lay matters before them, and keep ac- 
 count of all receipts, etc. He had, generally, 
 an agent in the province, who was also some- 
 times called magister societatis. Id. ; Story, 
 Partn. § 95. 
 
 MAGISTRACS*. In its most enlarged 
 signification, this term includes all ofiicers, 
 legislative, executive, and judicial. For ex- 
 ample, in some 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 ex- 
 ecutive, to another ; and those which are 
 judicial, 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 the peace. It is also 
 used for the office of a magistrate. 
 
 MAGISTRALIA BREVIA (Lat.). 
 
 Writs adapted to special cases, and so called 
 because drawn by the masters in chancery. 1 
 Spence, Eq. Jur. 239. For the diiference be- 
 tween these and judicial writs, see Bracton, 
 413 b. 
 
 MAGISTRATE. A public civil ofiicer, 
 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 jus- 
 tices of the peace. 
 
 The president of the United States is the 
 chief magistrate of this nation ; the governors 
 are the chief magistrates of their respective 
 states. 
 
 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 magis- 
 trate • to exercise the functions of his office, 
 when required by law, is a misdemeanor 
 See 15 Viner, Abr. 144 ; Aylifie, Pand. tit. 
 
MAGISTRATE'S COURT 
 
 134 
 
 MAGNA CHARTA 
 
 22 ; Dig. 30. 16. 57 ; Merlin, Rep.; 13 Pick. 
 523. 
 
 MAGISTRATE'S COUHT. In 
 Ameiican Law. Courts in the state of 
 South Carolina, having exclusive jurisdiction 
 in matters of contract of and under twenty 
 dollars. 
 
 The constitution of Pennsylvania of 1874, art. 
 T. § 12, abolishes the office of alderman in the 
 city of Philadelphia, and establishes in its place 
 magistrates' courts, not of record, of police and 
 civil causes, with jurisdiction not exceeding one 
 hundred dollars. 
 
 MAGNA ASSISA ELIGENDA. 
 
 An ancient writ to summon four lawful knights 
 before the justices of assize, there to choose 
 twelve others, with themselves to constitute the 
 grand assize or great jury, to try the matter of 
 right. The trial by grand assize was instituted 
 by Henry II. in parliament, as an alternative to 
 the duel in a writ of right. Abolished by 3 & 4 
 Will. IV. c. 37. Whart. 
 
 MAGNA CHAHTA. The Great Charter 
 of English liberties, so called (but which was 
 leally a compact between the king and his 
 barons, and almost exclusively for the benefit 
 of the latter, though confirming the ancient 
 liberties of Englishmen in some few particu- 
 lars), was wrung from king John by hii. 
 barons assembled in arms, on the 19th of 
 June, 1215, and was given by the king's 
 hand, as a confirmation of his own act, on 
 the little island in the Thames, within the 
 county of Buckinghamshire, which is still 
 called " Magna Charta Island." 
 
 The preliminary interview was held in the mea- 
 dow of Running Mede, or Bunny Mede (fr. Sax. 
 9-«ne, council) , that is, council meadow, which 
 had been used constantly for national assemblies, 
 and which was situated on the southwest side 
 bf the Thames, between Staines and Windsor. 
 Though such formalities were observed, the pro- 
 visions of the charter were disregarded by John 
 and succeeding klngs,.each of whom, when wish- 
 ing to do a popular thing, confirmed this charter. 
 Therewere thirty-two confirmations betweenl215 
 and 1416, the most celebrated of which were 
 those by Hen. III. (1325) and Edw. I., which 
 last confirmation was sealed with the great seal 
 of England at Ghent, on the 5th November, 1397. 
 Conflrmatio Chartarum. The Magna Charta 
 printed in all the books as of 9 Hen. III. is really 
 a transcript of the roll of parliament of 25 Edw. 
 I. There were many originals of Magna Charta 
 made, two of which are preserved in the British 
 Museum. 
 
 Magna Charta consists of thirty-seven chap- 
 ters, the subject-matter of which is very 
 various. C. 1 provides that the Anglican 
 church shall be free and possess its rights 
 unimpaired, probably referring chiefly to im- 
 munity from papal jurisdiction. C. 2 fixes 
 relief which shall be paid by king's tenant, 
 of full age. C. 3 relates to heirs and their 
 being in ward. C. 4 : guardians of wards 
 within age are by this chapter restrained from 
 waste of ward's estate, " vasto hominum et 
 rerum," waste of men and of things, which 
 shows that serfs were regarded as slaves even 
 by this much-boasted charter ; and as serfs 
 and freemen were at this time the divisions 
 
 of society, and as freemen included, almost 
 without exception, the nobility alone, we can 
 see somewhat how much this charter deserves 
 its name. C. 5 relates to the land and other 
 property of heirs, and the delivering them 
 up when the heirs are of age. C. 6 ; the 
 marriage of heirs. C. 7 provides that widow 
 shall have quarantine of forty days in her 
 husband's chief house, and shall have her 
 dower set out to her at once, without paying 
 anything for it, and in meanwhile to have 
 reasonable estovers ; the dower to be one-third 
 of lands of husband, unless wife was endowed 
 of less at the church-door ; widow not to be 
 compelled to marry, but to find surety that 
 she will not marry without consent of the 
 lord of whom she holds. 
 
 C. 8: the goods and chattels of crown-debtor 
 to be exhausted before his rents and lands 
 are distrained ; the surety not to be called 
 upon if the principal can pay ; if sureties pay 
 the debt, they to have the rents and lands of 
 debtor till the debt is satisfied. C. 9 secures 
 to London and other cities and boroughs and 
 town barons of the five ports, and aS other 
 ports, to have their ancient liberties. C. 10 
 prohibits excessive distress for more services 
 or rent than was due. C. 11 provides that 
 court of common pleas should not follow the 
 court of the king, but should be held in a 
 certain place. They have been, accordingly, 
 located at Westminster. C. 12 declares the 
 manner of taking assizes of novel desseisin 
 and mart d' ancestor. These were actions to 
 recover lost seisin (q. «.), now abolished. C. 
 13 relates to assizes darrein presentment 
 brought by ecclesiastics to try right to present 
 to ecclesiastical benefice. Abolished. C. 14 
 provides that amercement of a freeman for a 
 fault shall be proportionate to his crime, and 
 not excessive, and that the villein of any other 
 than the king shall be amerced in same man- 
 ner, his farm, utensils, etc. being preserved 
 to him (^salvo vianagio suo). For otherwise 
 he could not cultivate lord's land. C. 15 and 
 c. 16 relate to making of bridges and keeping 
 in repair of sewers and sea-walls. This is 
 now regulated by local parochial law. 
 
 C. 1 7 forbids sherifis and coroners to hold 
 pleas of the crown. Pleas of the crown are 
 criminal cases which it is desirable should not 
 be tried by an inferior and perhaps ignorant 
 magistrate. C. 18 provides that if any one 
 holding a lay fee from crown die, the king's 
 bailiff, on showing letters patent of summons 
 for debt from the king, may attach all his 
 goods and chattels, so that nothing be moved 
 away till the debt to crown be paid ofif clearly, 
 the residue to go to executors to perform the 
 testament of the dead ; and if there be no 
 debt owing to crown, all the chattels of the 
 deceased to go to executors, reserving, how- 
 ever, to the wife and children their reasonable 
 parts. C. 19 relates to purveyance of king's 
 house; C. 20,, to the castle-guard; C. 21, to 
 taking horses, carts, and wood for use of 
 royal castles. The last three chapters are 
 now obsolete. C. 22 provides that the lands 
 
MAGNA CHARTA 
 
 135 
 
 MAIL 
 
 of felons shall go to kin" for a year and a 
 day, afterwards to the lord of the fee. So in 
 Prance. The day is added to prevent dis- 
 pute as to whether the year is exclusive or 
 inclusive of its last day. C. 23 provides that 
 the wears shall be pulled down in the Thames 
 and Medway, and throughout England, ex- 
 cept on the sea-coast. These wears destroyed 
 fish, and interrupted the floating of wood and 
 the like down stream. C. 24 relates to the 
 writ of prcecipe in capite for lords against 
 their tenants oflerine wrong, etc. Now abol- 
 ished. C. 25 provides a uniform measure. 
 See 5 & 6 Will. IV. c. 63. C. 26 relates to 
 inquisitions of life and member, which are to 
 be granted freely. Now abolished. C. 27 
 relates to knight-service and other ancient 
 tenures, now abolished. 
 
 C. 28 relates to accusations, which must be 
 under oath. C. 29 provides that "no free- 
 man shall be taken, or imprisoned, or dis- 
 seised from his freehold, or liberties, or im- 
 munities, nor outlawed, nor exiled, nor in 
 any manner destroyed, nor will we come 
 upon him or send against him, except by 
 legal judgment of his peers or the law of the 
 land. We will sell or deny justice to none, 
 nor put off right or justice." This clause is 
 very much celebrated, as confirming the right 
 to trial by jury. C. 30 relates to merchant- 
 strangers, who are to be civilly treated, and, 
 unless previously prohibited, are to have free 
 passage through, and exit from, and dwelling 
 in, England, without any manner of extor- 
 tions, except in time of war. If they are of 
 a country at war with England, and found in 
 England at the beginning of the war, they 
 are to be kept safely until it is found out how 
 English merchants are treated in their coun- 
 try, and then are to be treated accordingly. 
 C. 31 relates to escheats; C. 32, to the power 
 of alienation in a freeman, which is limited. 
 C. 33 relates to patrons of abbeys, etc. C. 34 
 provides that no appeal shall be brought by a 
 woman except for death of her husband. 
 This was because the defendant could not 
 defend himself against a woman in single 
 combat. The crime of murder or homicide 
 is now inquired into by indictment. C. 35 
 relates to rights of holding county courts, etc. 
 Obsolete. C. 36 provides that a gift of lands 
 in mortmain shall be void, and lands so given 
 goto lord of fee. C. 37 relates to escuage 
 and subsidy. C. 38 confirms every article of 
 the charter. 
 
 The object of this statute was to declare 
 and reaffirm such common law "principles as, 
 by reason of usurpation and force, had come 
 to be of doubtful force, and needed therefore 
 to be authoritatively announced, that king and 
 subject might alike authoritatively observe 
 them. Cooley, Const. Lim. 30. 
 
 Magna Charta is said by some to have been 
 so called because larger than the Charta de 
 Foresta, which was given about the same time. 
 Spelman, Gloss. But see Cowel. Magna 
 Charta is mentioned casually by Bracton, 
 Fleta, and Britton. Glanville is supposed to 
 
 have written before Magna Charta. The 
 Mirror of Justices, c. 315 et seq., has a chap- 
 ter on its defects. See Co. 2d Inst. ; Bar- 
 rington, Stat. ; 4 Bla. Com. 423. 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, p. 
 229, there is a copy of the original seal of 
 King John affixed to this instrument ; a spe- 
 cimen oi & facsimile of the writing of Magna 
 Charta, beginning at the passage, Nullus 
 liber homo capietur vel imprisonetur, etc. A 
 facsimile has been published by Chatto & 
 Windess, London. A copy of both may be 
 found in the Magasin Pittoresque for the year 
 1834, pp. 52, 53. See 8 Encyc. Brit. 722 ; 
 6 id. 332 ; Wharton, Lex. ; Wells, Magna 
 Charta. 
 
 MAHL BRIEF. 
 
 A term confined to the German law of ship- 
 ping. It is a contract for building a ship, speci- 
 fying her description, quality of materials, the 
 denomination, and size, with reservation gene- 
 rally that contractor or his agent (who is in 
 most cases the master of a vessel) may reject 
 such material as he deems uncontract-worthy, 
 and oblige builder to supply other materials. 
 Jacobsen, Sea Laws, 2, 3. 
 
 MAIDEN. An instrument formerly used 
 in Scotland for beheading criminals. 
 MAIDEN ASSIZE. In EngUsh Law. 
 
 Originally an assize at which no person was 
 condemned to die. Now it is a session of a 
 criminal court at which there are no prisoners 
 to be tried. Wharton. 
 
 MAIDEN RENTS. In Old EngUsh 
 Law. A fine paid to lords of some manors, 
 on the marriage of tenants, originally given 
 in consideration of the lord's relinquishing his 
 customary right of lying the first night with 
 the bride of a tenant. Cowel. 
 
 MAIHEM. See Mayhem ; Maim. 
 
 MAIL (Pr. malle, a trunk). The bag, 
 valise, or other contrivance used in conveying 
 through the post-office letters, packets, news- 
 papers, pamphlets, and the like, from place 
 to place, under the authority of the United 
 States. The things thus carried are also 
 called the mail. 
 
 By the act of March 3, 1879, ch. 180, mailable 
 matter is divided into four classes. 1. Written 
 matter, embracing letters, postal cards, and all 
 matters wholly or partly in writing, with certain 
 exceptions. 2. Periodical publications issued as 
 often as four times a year. 3. Books, transient 
 newspapers and periodicals, circulars, proof 
 sheets, etc., wholly in print. 4. Merchandise, 
 comprising all matter not embraced in the above 
 classes, which is not liable to injure the contents 
 of the mail bags, or harm the person of any one 
 engaged in the postal service, and is not above 
 the weight of four pounds, except in the case of 
 single books. Obscene books, pictures, etc., 
 scurrilous and disloyal letters, and lottery circu- 
 lars are not mailable (8 June, 1872, Rev. Stat. 
 § 3893) , and all such matter reaching the office 
 of delivery, shall be held by the postmaster, 
 subject to the order of the postmaster-general ; 
 March 3, 1879, § 21 ; Supplement to Rev. Stat. 
 p. 457. In an indictment under § 3893, of the 
 act of 8 June, 1872, it is no defence that the non- 
 
MAILE 
 
 186 
 
 MAINE 
 
 mailable matter was mailed to a fictitious name 
 used as a decoy, nor that the thing sent, In the 
 ease of a nostrum, was ineffective ; 10 Fed. Kep. 
 92. Numerous provisions will be found under 
 the, acts of June 8, 1873, and Feb. 37, 1877, for 
 the punishment of crimes against the mail, such 
 as forging money-orders, counterfeiting postage 
 stamps, opening, stealing, or destroying letters, 
 robbing or attempting to rob the mail, deserting 
 the mail when in charge of it, injuring the mail 
 bags, etc. ; Eev. Stat. §§ .5463, 5480. 
 
 A neutral merchant vessel carrying the mail is 
 not privileged by that fact from examination ; 7 
 Am. L. Reg. N. s. 762. 
 
 MAILE. In Old English Law. A 
 small piece of money. A rent. 
 
 MAILS AND BUTIES. In Scotch 
 Lavr. Rents of an estate. Stair, Inst. 2. 
 12. 32 ; 2 Ross, Lect. 235, 381, 431-439. 
 
 MAIM. In Criminal 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. In New 
 York, under the Rev. Stat., a blow aimed at 
 and delivered upon the head, does not consti- 
 tute the crime of assault and battery, with 
 intent to maim ; 60 N. Y. 698. JJistin- 
 guished from wounding; 11 Cox, Cr. Cas. 
 125; 11 Iowa, 414. 
 
 In Pleading. The words "feloniously did 
 maim " must of necessity be inserted, because 
 no other word nor any circumlocution will 
 answer the same purpose. 1 Chitty, Cr. Law, 
 244. 
 
 MAINE. The name of one of the states 
 of the United States of America, formed out 
 of that part of the territory of Massachusetts 
 called the district of Maine. 
 
 The territory embraced in the new state was 
 not contiguous to that remaining in the state 
 from which it was taken, and was more than four 
 times as large. The legislature of Massachu- 
 setts, by an act passed June 19, 1819, gave 
 its consent for the people of the district to be- 
 come a separate and independent state. They 
 met in convention, by delegates elected for the 
 purpose, and formed a separate state, by the 
 style of the State of Maine, and adopted a consti- 
 tution for the government thereof, October 19, 
 1819, and applied to congress, at its next session, 
 for admission into the Union. 
 
 The petition was presented in the house of re- 
 presentatives of the United States, December 8, 
 1819, and the state was admitted into the Union 
 by the act of congress of March 3, 1820, from 
 and after the fifteenth day of March, 1820. 
 
 Every male citizen of the United States, twen- 
 ty-one years of age, excepting paupers, persons 
 under guardianship, and Indians not taxed, who 
 has resided in the state three months next be- 
 fore any election, has a right to vote, except 
 United States troops in service at stations of the 
 United States, who do not by such stay gain any 
 residence. ' 
 
 The election of governor, senators, and repre- 
 sentatives is on the second Monday of Septem- 
 ber. 
 
 Thb Legislative Power. — This is vested in 
 two distinct branches : a house of representatives 
 and a senate, each having a negative upon the 
 other, and both together being styled the Legis- 
 lature of Maine. Const. Art. 4, part 1, § 1. 
 
 The House of Representatives consists of one 
 hundred and fifty-one members. Art. 4, part 1, 
 
 §a- 
 
 They are to be apportioned among the counties 
 according to law : to be elected biennially by the 
 qualified electors, for two years from the day of 
 the meeting of the legislature. Amendment 
 1879. 
 
 The legislature convenes on the first Wednes- 
 day of January bienially, from and after the first 
 Wednesday of January, 1881. Amendment 
 1879. 
 
 A representative must be twenty-one years old 
 at least, for five years a citizen of the United 
 States, for one year a resident of the state, and 
 for three months immediately preceding his elec- 
 tion a resident of the town or district which he 
 represents. He must continue a resident during 
 his term of office. 
 
 The Senate consists of not less than twenty 
 nor more than thirty-one members, elected, one 
 from each district, at the same time, and for the 
 same term, as the representatives, by the quali- 
 fied electors of the districts into which the state 
 shall from time to time be divided. Art. 4, part 
 3, § 1. A senator must be at least twenty-five 
 years old, and otherwise possess the same quali- 
 fications as representatives. 
 
 Every bill or resolution having the force of law, 
 to which the concurrence of both branches is 
 necessary, except on a question of adjournment, 
 must be approved by the governor, unless, upon 
 its return to the house in which it originated) 
 with his objections, it shall there be passed over 
 his veto by receiving in each house the votes of 
 two-thirds thereof ; or unless he shall retain it 
 for more than five days. Art. 4, part 3, § 2. 
 
 The senate has power to try all impeachments. 
 Art. 4, part 2, § 7. 
 
 The Executive Pot^eb. — The Governor is 
 elected by the qualified electors, and holds his 
 office for two years from the first Wednesday of 
 January. Art. 5, part 1, § 2. Amendment 
 1879. 
 
 He must, at the commencement of his term, 
 be not less than thirty years of age, a natural- 
 born citizen of the United, five years a resident 
 of the state, and at the time of his election, and 
 during his term, be a resident of the state. Art. 
 5, part 1, § 4. 
 
 A Council consisting of seven persons, citizens 
 of the United States, and resident within the 
 state, to advise the governor in the executive part 
 of government, is to be chosen biennially by 
 joint ballot of the senators and representatives in 
 convention. Art. 5, part 3, §§ 1 and 2. 
 
 The governor nominates, and with the advice 
 and consent of the council appoints all judicial 
 oificers, coroners, and notaries public ; is to in- 
 form the legislature of the condition of the state, 
 and recommend measures ; may, after conviction, 
 with the advice and consent of council, remit 
 forfeitures, and grant reprieves and pardons, ex- 
 cept in cases of impeachment ; may convene the 
 legislature at unusual times or places, if neces- 
 sary, and adjourn them, in case of disagreement 
 as to the time of adjournment. 
 
 The Judicial Powek. — The Supi-eme Judicial 
 Court is composed of one chief and seven assis- 
 tant judges, appointed by the governor and 
 council for the term of seven years. It is the 
 highest court, and also the court of general 
 original jurisdiction, — having the jurisdiction of 
 the former district court. It' has exclusive civil 
 jurisdiction in law and equity, except over cases 
 involving small amounts, of which jurisdiction 
 is given to trial justices. Five judges are neces- 
 
MAINOUR 
 
 137 
 
 MAINTENANCE 
 
 sary to constitute a quorum for the decision of 
 questions of law. Annual law terms are held 
 in each of the three districts into which the state 
 is divided for the purpose. For purposes of jury 
 trials, including civil and criminal cases, the 
 court is held by a single judge. Two or more 
 terms are held annually in each county in the 
 state, as provided by statute, from time to time. 
 The justices receive a stated salary, and are to 
 give their opinions upon important questions of 
 law upon solemn occasions when required by the 
 governor, senate, or house of representatives. 
 
 Superior Courts are established in the counties 
 of Cumberland and Kennebec with an exclusive 
 criminal and a limited civil jurisdiction. 
 
 Probate Courtg are held in each county by 
 judges elected for four years by the people. They 
 are to appoint guardians ; take probate of wills ; 
 grant letters of administration ; attend to the 
 settlement of estates of persons in state prison, 
 under sentence of death or imprisonment for life ; 
 and to have jurisdiction generally for these and 
 similar purposes. The supreme court is the su- 
 preme court of probate, and an appeal lies to it 
 from the decision of the judge of probate. 
 
 Justices of the Peace and Quorum are appointed 
 by the governor and council for the term of seven 
 years. They may administer oaths ; issue sub- 
 poenas ; take depositions ; take the disclosures of 
 poor debtors arrested on reissue process or execu- 
 tion; and have certain other powers of less general 
 interest. 
 
 Trial justices are appointed in the same man- 
 ner as justices of the peace and quorum, and have 
 ex-offlcio all the powers of those officers and also 
 have jurisdiction over all civil cases (except 
 those involving the title to land) where the 
 amount involved does not exceed twenty dollars. 
 They have a limited criminal jurisdiction. 
 
 Police Courts are created by special enactment 
 in the larger towns, with a jurisdiction substan- 
 tially that of the trial justices, and exclusive 
 thereof, except in specified cases. 
 
 County Commissioners are chosen by the people, 
 three in each county, to attend to the internal po- 
 lice of the county. They have the care of roads, 
 bridges, etc., the public buildings of the county, 
 and the control of the county money. One is 
 elected annually for the term of three years. 
 
 No city or town can create any liability exceed- 
 ing five per centum of its last regular valua- 
 tion. Amendment of 1878. 
 
 MAINOUR In Criminal 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. 
 
 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 maynove7'e, ot ove mainer, or mainour, 
 as it is generally written. Barrington, Stat. 315, 
 316, note. 
 
 MAINPERNABLE. Capable of being 
 bailed ; one for whom bail may be taken ; 
 bailable. 
 
 MAINPERNORS. In English Law. 
 Those persons to whom a man is delivered 
 out of custody or prison, on their becoming 
 bound for his appearance. 
 
 Mainpernors differ from bail ; a man's hail 
 may imprison or surrender him up before the 
 stipulated day of appearance ; mainpernors can 
 
 do neither ; but are merely sureties for his ap- 
 pearance at the day ; bail are only sureties that 
 the party be answerable for all the special mat- 
 ter for which they stipulate ; mainpernors are 
 bound to produce him to answer all charges what- 
 soever. 6 Mod. 231 ; 7 id. 77, 85, 98 ; 3 Bla. 
 Com. 128. See Dane, Abr. 
 
 MAINPRISE. In English Law. The 
 taking a man into friendly custody, virho 
 might otherwise be committed to prison, upon 
 security given for his appearance at a time 
 and place assigned. Wood, Inst. b. 4, c. 4. 
 The writ of mainprise, q. v., is now obsolete. 
 See Bail. 
 
 MAINS'WORN. Forsworn, by making 
 false oath with hand (main) on book. Used 
 in the North of England. Brownl. 4 ; Hob. 
 125. 
 
 MAINTAINED. In Pleading. A 
 technical word indispensable in an indictment 
 for maintenance. 1 Wils. 325. 
 
 MAINTAINORS. In Criminal Law. 
 Those who maintain or support a cause de- 
 pending between others, not being retained as 
 counsel or attorney. For this they may be 
 fined and imprisoned. 2 Swift, Dig. 328 ; 4 
 Bla. Com. 124; Bacon, Abr. Barrator. 
 
 MAINTENANCE. Aid, support, assist- 
 ance ; 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 them- 
 selves, and he has ability to maintain them. 
 1 Bouvier, Inst. nn. 284-286. 
 
 In Criminal Law. 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 Buss. Cr. 
 176. 
 
 The intermeddling of a stranger in a suit 
 for the purpose of stirring up strife and con- 
 tinuing the litigation ; 2 Pars. Contr. 266. 
 See 4 Term, 340 ; 6 Bingh. 299 ; 4 Q. B. 883. 
 
 But there are many acts in the nature of 
 maintenance which become justifiable from 
 the circumstances uiider which they are done. 
 They may be justified, Jir.it, 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 ; Bacon, Abr. Maintenance ; and 
 see 11 M. & W. 675; 9 Mete. 489; 13 id. 
 262; 1 Me. 292; 6 id. 361; 11 id. Ill; 
 second, because the party is of kindred or 
 affinity, as father, son, or heir apparent, or 
 husband or wife; 3 Cow. 623 ; third, because 
 the relation of landlord and tenant or master 
 and servant subsists between the party to the 
 suit and the person who assists him ; fourth, 
 because the money is given out of charity ; 1 
 Bail. 401 ; Jifth, because the person assisting 
 the party to the suit is an attorney or coun- 
 sellor ; the assistance to be rendered must, 
 however, be strictly professional, for a lawyer 
 
MAISON DE DIEU 
 
 138 
 
 MAKE 
 
 ; more justified in giving his client money 
 another man; 1 Euss. Cr. 179; Bacon, 
 
 is not 
 than an 
 
 Abr. Maintenance; Brooke, Abr. Mainten- 
 ance. This offence is punishable criminally 
 by fine and imprisonment ; 4 Bla. Com. 124 ; 
 2 Swift, Dig. 328. Contracts growing out 
 of maintenance are void; 11 Mass. 549; 6 
 Humphr. 379 ; 20 Ala. n. s. 521; 5 T. B. Monr. 
 413 ; 5 Johns. Ch. 44 ; 4 Q. B. 883. See 1 
 Me. 292 ; 11 Mass. 553 ; 5 Pick. 359 ; 3 Cow. 
 647 ; 6 id. 431 ; 4 Wend. 306 ; 3 Johns. Ch. 
 508 ; 7 Dowl. & R. 846 ; 6 B. & C. 188 ; 2 
 Bish. Cr. Law, 122. 
 
 MAISON DE DIEU (Fr. house of God ; 
 a hospital). A hospital ; an almshouse ; a 
 monastery. Stat. 39 Eliz. c. 5. 
 
 MAJESTT. A term used of kings and 
 emperors as a title of honor. It sometimes 
 means power : as when we say, the majesty 
 of the people. See Wolff. § 998. 
 
 MAJOR. One who has attained his full 
 age and has acquired all his civil rights ; one 
 who is no longer a minor ; an adult. 
 
 In Militaiy Law. The officer next in 
 rank above a captain. 
 
 For the use of the word in Latin maxims, 
 see Maxims. 
 
 MAJOR-GENERAL. In Militarjr 
 Ita^nr. An officer next in rank above a 
 brigadier-general. He commands a division 
 consisting of several brigades, or even an 
 army. 
 
 MAJORES (Lat.). The male ascendants 
 beyond the sixth degree. The term was used 
 among the Romans ; and the term is still re- 
 tained in making genealogical tables. 
 
 MAJORA REGALIA. The king's dig- 
 nity, power, and royal prerogative, as opposed 
 to his revenue, which is comprised m the 
 minora regalia. 2 Steph. Com. 475 ; 1 Bla. 
 Com. 240. 
 
 MAJORITV. 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. 
 Full Age. 
 
 The greater number. More than all the 
 opponents. 
 
 Some question exists as to whether a majority 
 of any body is more than one-half tlie whole num- 
 her or more than the number acting in opposition. 
 Thus, in a body of one hundred voters, in which 
 twenty did not vote on any particular question, 
 on the former supposition fifty-one would be a 
 majority, on the latter forty-one. The intended 
 signification is generally denoted by the context, 
 and where it is not the second sense is generally 
 intended ; a majority on a given question being 
 more than one-half the number of those voting. 
 
 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 at the same time, in the same society, on 
 the same subject; 1 Tucker, Bla. Com. Appx. 
 168, 172 ; 9 Dane, Abr. 37-43 ; 1 Story, Const. 
 
 As to the rights of the majority of part- 
 owners of vessels, see 3 Kent, 114 et seq.; 
 Parsons, Marit. Law; Part-Owners. As 
 to the majority of a church, see 16 Mass. 488. 
 
 In the absence of all stipulations, the gene. 
 ral rule in partnerships is that each partner 
 has an equal voice, and a majority acting 
 bond Jide have the right to manage the part- 
 nership concerns and dispose of the partner- 
 ship 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. 
 See Partner. 
 
 As to the conflict of laws relating to major- 
 ity, see 19 Am. Dec. 180. 
 
 In corporations, in the absence of any pro. 
 vision in the charter or constitution, the gene- 
 ral rule is that, within the scope of the 
 corporate affairs, the acts of a majority bind 
 the corporation ; 30 Penn. 42 ; 4 Biss. 78 ; 
 33 Conn. 396. It is not necessary that those 
 present at a meeting constitute a majority of 
 all the members; 7 Cow. 42; a majority of 
 those who appear may act ; 88 Penn. 42 ; 104 
 Mass. 378; 6 Blatch. 525 ; 57 111. 416 ; 8. c. 
 11 Am. Rep. 24; 33 Beav. 595. When, 
 however, an act is to be performed by a select 
 and definite body, such as a board of directors, 
 a majority of the entire body is required to 
 constitute a meeting ; 9 Wend. 394 ; 16 Iowa, 
 284 ; but if a q^orum is present, a majority 
 of such quorum may act ; 23 N. H. 555 ; 13 
 Ind. 68. 
 
 In political elections, a majority of the, 
 votes cast at an election on any question 
 means the majority of those who voted on that 
 question; 10 Minn. 107; 1 Sneed, 637; 20 
 111. 159 ; 20 Wise. 544; 95 U. S. 369. "All 
 qualified voters who absent themselves from 
 an election duly called are presumed to assent 
 to the express will of the majority of those 
 voting, unless the lawprovidingfor the election 
 otherwise declares. Any other rule would be 
 productive of the greatest inconvenience, and 
 ought not to be adopted unless the legislative 
 will to that effect is clearly expressed." Hid. 
 (Miller and Bradley, JJ., dissenting). The 
 opposite view is held in 35 Mo. 103; 16 Minn. 
 249 ; 69 Ind. 505. In the last case an amend- 
 ment to the constitution received less than a 
 majority of all those who voted at the election, 
 but had a majority of those cast for or against 
 the adoption of the amendment ; it was held 
 (two judges dissenting) that the amendment 
 had been neither ratified nor rejected. See 
 22 Alb. L. J. 44. 
 
 MAKE. To perform or execute : as, to 
 make his law, is to perform that which a man 
 had bound himself to do ; that is, to clear 
 himself of an action commenced against him, 
 by his oath and the oath of his neighbors. 
 Old Nat. Brev. 161. To make default, is to 
 fail to appear in proper trial. To make oath, 
 is to swear according to the form prescribed 
 by law. It is also used intransitively of per- 
 sons and things, to have effect ; to tend ; e. g. 
 
MAKER 
 
 139 
 
 MALICE 
 
 "That case makes for me." Hardr. 133; 
 Webster, Diet. 
 
 MAKER. A term 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 in- 
 accurately applied to the maker of a promissory 
 note. See Peomissort Note. 
 
 MAKING HIS LAW. A phrase used 
 to denote the act of a person who wages his 
 law. Bacon, Abr. Wager of Law. 
 
 MALA FIDES (Lat.). Bad faith. It is 
 opposed to bonajides, good faith. 
 
 MALA PRAXIS (Lat.). Bad or unskil- 
 ful practice in a physician or other profes- 
 sional person, whereby the health of the 
 .patient is injured. 
 
 Wilful malpractice takes place when the 
 physician purposely administers medicines or 
 performs an operation which he knows and 
 expects will result in damage or death to the 
 individual under his care : as in the case of 
 criminal abortion ; Elwell, Malpract. 243 et 
 seq.; 2 Barb. 21 S. 
 
 Negligent malpractice comprehends those 
 cases where there is no criminal or dishonest 
 object, but gross negligence of that attention 
 which the situation of the patient requires : 
 as if a physician should administer medicines 
 while in a state of intoxication, from which 
 injury would arise to his patient. 
 
 Ignorant malpractice is the administration 
 of medicines calculated to do injury, which 
 do harm, which a well-educated and scientific 
 medical man would know were not proper in 
 the case; Elwell, Malpract. 198 et seq.; 7 
 
 B. & C. 493, 497 ; 6 Bingh. 440 ; 6 Mass. 134 ; 
 
 5 C. & P. 333 ; 1 Mood. & R. 405 ; 5 Cox, 
 
 C. C._587. 
 
 This offence is a misdemeanor (whether it 
 be occasioned by curiosity and experiment or 
 neglect), because it breaks the trust which the 
 patient has put in the physician, and tends 
 directly to his destruction ; 1 Ld. Raym. 
 213. See 3 Chitty, Cr. Law, 8G3 ; 4 Wentw. 
 PI. 360 ; 2 Russ. Cr. 277 ; 1 Chitty, Pr. 43 ; 
 
 6 Mass. 134; 8 Mo. 561 ; 3 C; & P. 629 ; 4 
 id. 423. 
 
 Besides the public remedy for malpractice, 
 in many cases the party injured may bring a 
 civil action ; 9 Conn. 209 ; 3 Watts, 355 ; 7 
 N. Y. 397 ; 39 Vt. 447. 
 
 Civil cases of malpractice are of very fre- 
 quent occurrence on those occasions where 
 surgical operations are rendered necessary, or 
 supposed to be so, by disease or injury, and 
 are so performed as either to shorten a limb or 
 render it stiff, or otherwise prevent the free, 
 natural use of it, by which the party ever 
 after suffers damages. This may embrace 
 almost every kind of surgical operation ; but 
 nine-tenths of all such cases arise from ampu- 
 tations, fractures, or dislocations; Elwell, 
 Malpract. 55. 
 
 To the performance of all surgical opera- 
 
 tions the surgeon is bound to bring at least 
 ordinary skill and knowledge. He must 
 apply without mistake what is settled in his 
 profession. He must possess and practically 
 exercise that degree and amount of knowl- 
 edge and science which the leading authorities 
 have pronounced as the result of their re- 
 searches and ekperience up to the time, or 
 within a reasonable time before the issue or 
 question to be determined is made ; Elwell, 
 Malpract. 55; 6 Am. L. Reg. N. 8. 774. 
 Manycases, both English and American, have 
 occurred, illustrating the nature and extent of 
 this liability; 8 East, 347; 2 Wils. 259; 1 
 H. Bla. 61 ; Wright, Ohio, 466 ; 22 Penn. 
 261 ; 27 N. H. 460 ; 13 B. Monr. 219. 
 
 MALA PROHIBITA (Lat.). Those 
 things . which are prohibited by law, and 
 therefore unlawful. 
 
 A distinction was formerly made, in respect of 
 contracts, between mala prohibita and mala in se; 
 but tbat distinction has been exploded, and it is 
 now established that when the provisions of an 
 act of the legislature have for their object the 
 protection of the public, it makes no difference 
 with respect to contracts whether the thing be 
 prohibited absolutely or under a penalty. 5 B. 
 & Aid. 335, 340 ; 10 B. & C. 98 ; 3 Stark. 61 ; 13 
 Pick. 518 ; 3 Bingh. N. c. 636, 646. The distinc- 
 tion is, however, important in criminal law 
 in some cases with reference to the question of 
 intent. See Intent ; 1 Bish. Cr. L. §§ 286-288; 
 1 Whart. Cr. L. § 35. 
 
 MALE. Of the masculine sex ; of the 
 sex that begets young ; the sex opposed to the 
 female. 
 
 MALEDICTION (Lat.). In Ecclesias- 
 tical Lavr. A curse which was anciently 
 annexed to donations of lands made to 
 churches and religious houses, against those 
 who should violate their rights. 
 
 MALEFACTOR (Lat.). He who has 
 been guilty of some crime ; in another sense, 
 one who has been convicted of having com- 
 mitted a crime. 
 
 MALEFICItTM (Lat). In Civil Law. 
 Waste; damage; tort; injury. Dig. 5. 18. 1. 
 
 MALFEASANCE. The unjust perform- 
 ance of some act which the party had no 
 right, or which he had contracted not, to do. 
 It differs from misfeasance and nonfeasance, 
 which titles see. See 1 Chitty, Pr. 9 ; 1 
 Chitty, PI. 134. 
 
 MALICE. In Criminal Law. The 
 doing a wrongful act intentionally without 
 just cause or excuse. 4 B. & C. 255 ; 9 Mete. 
 104. A wicked and mischievous purpose 
 which characterizes the perpetration of an 
 injurious act without lawful excuse. 4 B. & 
 C. 255 ; 9 Mete. 104. 
 
 A conscious violation of the law, to the 
 prejudice of another. 9 CI. & F. 32. 
 
 That state of mind which prompts a con- 
 scious violation of the law to the prejudice of 
 another. 9 CI. & F. 32. 
 
 In a legal sense malice is never understood to 
 denote general malevolence or unkindness of 
 heart, or enmity towards a particular individual, 
 
MALICE 
 
 140 MALICIOUS PROSECUTION 
 
 tut it signifies rather tlie intent from which flows 
 any unlawful and injurious act committed with- 
 out legal justification. 15 Pick. 337 ; 9 Mete. 
 410 : 4 Ga. 14; 33 Me. 'SSI ; 7 Ala. N. s. 728 ; 2 
 Dev. 425 ; 2 Rich. 179 ; 1 Dall. 335 ; 4 Mas. 115 ; 
 
 1 Den. Cr. Gas. 63 ; R. &R. 26,465 ; 1 Mood. C. C. 
 93. It is not confined to the intention of doing 
 an injury to any particular person, but extends 
 to an evil design, a corrupt and wicked notion 
 against some one at the time of committing the 
 crime : as, if A, intending to poison B, conceals a 
 quantity of poison in an apple and puts it in the 
 way of B, and C, against whom he has no ill- 
 will, and who, on the contrary, is his friend, 
 happens to eat it and dies, A will be guilty of 
 murdering C with malice aforethought. Bacon, 
 Max. Reg. 15 ; 2 Chitty, Cr. Law, 727 ; 3 id. 1104. 
 
 Any formed design of mischief may be called 
 malice. Malice is a wicked, vindictive temper, 
 regardless of social duty, and bent on mischief. 
 There ^ay be malice, in a legal sense, in homi- 
 cide, wnere there is no actual intention of any 
 mischief, but the killing is the natural conse- 
 quence of a careless action ; Add. 158 ; 8 Cr. 
 Law Mag. 216. 
 
 Express malice exists when the party 
 evinces an intention to commit the crime ; 3 
 Bulstr. 171. 
 
 Implied malice is that inferred by law from 
 the facts proved ; 11 Humphr. 172 ; 6 Blaclrf. 
 299; 1 East, PI. Cr. 371. In cases of mur- 
 der this distinction is of no practical value ; 
 
 2 Bish. Cr. L. § 675. 
 
 Malice is implied in every case of intentional 
 homicide ; and the fact of killing being first 
 proved, all the circumstances of accident, 
 necessity, or informality are to be satisfactorily 
 established by the party charged, unless they 
 arise out of the evidence produced against 
 him to prove the homicide, and the circum- 
 stances attending it. If there are, in fact, 
 circumstances of justification, excuse, or pal- 
 liation, such proof will naturally indicate 
 them. But where the fact of killing is proved 
 by satisfactory evidence, and there are no cir- 
 cumstances disclosed tending to show justifi- 
 cation or excuse, there is nothing to rebut the 
 natural presumption of malice. It is material 
 to the just understanding of this rule that it 
 applies only to cases where the filling is 
 proved and nothing further is shown ; for if 
 the circumstances disclosed tend to extenuate 
 the act, the prisoner has the full benefit of 
 such facts ; 9 Mete. 93 ; 3 Gray, 463. 
 
 It is a general rule that when a man com- 
 mits an act, unaccompanied by any circum- 
 stances justifying its commission, the law 
 presumes he has acted advisedly and with an 
 intent to produce the consequences which 
 have ensued. And therefore the intent to 
 kill is conclusively inferred from the deliber- 
 ate violent use of a deadly weapon ; 9 Mete. 
 103 ; 5 Cush. 305. See 3 Maule & S. 15 ; 1 
 E. & R. Cr. Cas. 207 ; 'l Wood. Cr. Cas. 
 263; 1 East, PI. Cr. 223, 232, 340; 15 
 Viner, Abr. 506. 
 
 In Torts. A malicious act is a wrongful 
 act, intentionally done without cause or ex- 
 cuse ; 48 Mo. 152. 
 
 This term, as applied to torts, does not neces- 
 sarily mean that which must proceed from a 
 
 spiteful, malignant, or revengful disposition, 
 but a conduct injurious to another, though pro- 
 ceeding from an ill-regulated mind not suffl. 
 ciently cautious before it occasions an injury to 
 another ; 11 S. & R. 39, 40. Indeed, in some 
 cases it seems not to require any intention in or- 
 der to make an act malicious. When a slander 
 has been published, therefore, the proper ques- 
 tion for the jury is, not whether the intention of 
 the publication was to injure the plaintiff, but 
 whether the tendency of the matter published 
 was so injurious ; 10 B. & C. 472. Ajain, take 
 the common case of an offensive trade, the melt- 
 ing of tallow, for instance : such trade is not 
 itself unlawful, but if carried on to the annoy- 
 ance of the neighboring dwellings, it becomes 
 unlawful with respect to them, and their inhabi- 
 tants may maintain an action, and may charge 
 the act of the defendant to be malicious : 3 B. & 
 G. 584. 
 See Malicious PROSBcnTioiir. 
 
 MALICE AFORETHOUGHT. Tiiis 
 is a technical phrase employed in indictments ; 
 and with the word murder must be used to 
 distinguish the felonious killing called murder 
 from what is called manslaughter; Yelv. 205; 
 1 Chitty, Cr. L. 242 ; 1 Bish. Cr. L. § 429. 
 In the description of murder the words do not 
 imply deliberation, or the lapse of considera- 
 ble time between the malicious intent to take 
 life and the actual execution of that intent, 
 but rather denote purpose and design in con- 
 tradistinction to accident and mischance; 5 
 Cush. 306 ; but premeditation may be an ele- 
 ment showing malice when otherwise it would 
 not sufficiently appear ; 2 Bish. Cr. L. §'677 ; 
 see 8 C. & P. 616; 2 Mas. 60; 1 D. &B. 
 121, 163 ; 6 Blackf. 299 ; 3 Ala. N. s. 497. 
 
 MALICIOUS ABANDONMENT. The 
 
 forsaking without a just cause a husband by 
 the wife, or a wife by her husband. See 
 Abandonment ; Divorce. 
 
 MALICIOUS ARREST. A wanton 
 arrest made without probable cause by a regu- 
 lar process and proceeding. See Malicious 
 Prosecution. 
 
 MALICIOUS INJURY. An injury 
 committed wilfully and wantonly, or without 
 cause. 1 Chitty, Gen. Pr. 136. See "Whar- 
 ton, Cr. Law, 226 et seq., as to malice. See 
 4 Bla. Com. 143, 198, 199, 200, 206; 2 
 Russ. Cr. 544, 647. 
 
 MALICIOUS MISCHIEF. An expres- 
 sion applied to the wanton or reckless des- 
 truction of property, and the wilful perpetra- 
 tion of injury to the person. 
 
 The term is not sufficiently defined as the 
 wilful doing of any act prohibited by law, and 
 for which the defendant has no lawful excuse. 
 In order to a conviction of the offence of 
 malicious mischief, the jury must be satisfied 
 that the injury was done either out of a spirit 
 of wanton cruelty or of wicked revenge. 
 Jacob, Law Diet. Mischief, Malicious; 
 Alison, Sc. Law, 448 ; 3 Cush. 558 ; 2 Met«. 
 Mass. 21 ; 3 Dev. & B. 130 ; 5 Ired. 364; 8 
 Leigh, 719 ; 3 Me. 177. 
 
 MALICIOUS PROSECUTION. A 
 wanton prosecution made by a prosecutor in 
 
MALICIOUS PROSECUTION 141 MALICIOUS PROSECUTION 
 
 a criminal proceeding, or a plaintiff in a civil 
 suit, without probable cause, by a regular 
 process and proceeding, which the facts did 
 not warrant, as appears by the result. 
 
 Where the defendant commenced a crimi- 
 nal prosecution wantonly, and in other re- 
 spects against law, he will be responsible ; 
 Add. Penn. 270 ; 12 Conn. 219. The prose- 
 cution of a cioil suit, when malicious, is a 
 good cause of action, even when there has 
 been no arrest ; 11 Conn. 582 ; 1 Wend. 345. 
 See 106 Mass. 300; Bigel. Torts, 71. But 
 see 1 Am. Lead. Cas. 261 ; 21 Am. L. Reg. 
 N. s. 287. In such cases the want of probable 
 cause must be very palpable ; very slight 
 grounds will not justify an action; Bigel. 
 Torts, 71. See L. R. 4 Q. B. 730. 
 
 The action lies against the prosecutor, and 
 even against a mere informer, when the pro- 
 ceedings are malicious ; 9 Ala. 367. But 
 grand jurors are not liable to an action for a 
 ^malicious prosecution for information given 
 by them to their fellow-jurors, on which a 
 prosecution is founded ; Hard. 556. Such 
 action lies against a plaintiff in a civil action 
 who maliciously sues out the writ and prose- 
 cutes it ; 16 Pick. 453 ; but an action does not 
 lies against an attorney at law for bringing 
 the action, when regularly retained ; 16 Pick. 
 478. See 6 Pick. 193. 
 
 The action lies against a corporation aggre- 
 gate if the prosecution be commenced and 
 carried on by its agents in its interest and for 
 its benefit, and they acted within the scope of 
 the authority conferred on them by the cor- 
 poration ; 29 Eng. Rep. 621 (s. C. 6 Q. B. 
 D. 287), note, citing 22 Alb. L. J. ; 9 Phila. 
 189;' 22 Conn. 530; 130 Mass. 443 ; 73 Ind. 
 430. See also Cooley, Torts, 121 ; 7 C. B. 
 If. s. 290. 
 
 The proceedings under which the original 
 prosecution or action was held must have 
 been regular, in the ordinary course of jus- 
 tice, and before a tribunal having power to 
 ascertain the truth or falsity of the charge 
 and to punish the supposed offender, the now 
 plaintift"; 3 Pick. 379, 383. When the pro- 
 ceedings are irregular, the prosecutor is a 
 trespasser; 3 Blackf. 210. 
 
 The plaintiff must prove affirmatively that 
 he was prosecuted, that he was exonerated or 
 discharged, and that the prosecution was both 
 malicious and without probable cause ; 35 Md. 
 194; s. c. 11 Am. L. Reg. N. s. 531 ; 48 
 Barb. 30 ; s. c. 6 Am. L. Reg. 717 ; 1 Wend. 
 140, 345; 7 Cow. 281 ; Cooke, 90; 4 Litt. 
 Ky. 334 ;. 3 Gill & J. 377 ; 1 N. & M'C. 36 ; 
 2 id. 54, 143 ; 12 Conn. 219 ; 3 Call, 446 ; 3 
 Mas. 112. Malice is a question of fact for the 
 jury, and is generally inferred from a want 
 of probable cause, but such presumption is 
 only prima facie and may be rebutted. From 
 the most express malice, however, want of 
 probable cause cannot be inferred ; 35 Md. 
 194; 36 Md. 246; 37 Md. 282. Proba- 
 ble cause means the existence of such facts 
 and circumstances as would excite the belief 
 in a reasonable mind that the plaintiff was 
 
 guilty of the offence for which he was prose- 
 cuted; 37 Md. 282. In a late English ease 
 in the court of appeal, the jury were instructed 
 that in an action for malicious prosecution, the 
 plaintiff must prove affirmatively the absence 
 of probable cause and the existence of malice ; 
 and that if they came to the conclusion that 
 the plaintiff (who had been prosecuted by the 
 defendant for perjury) had spoken the truth, 
 but that the defendant had a very treacherous 
 memory, and went on with the prosecution 
 under the impression that the plaintiff had 
 committed perjury, yet if that was an honest 
 impression, the upshot of a fallacious memory, 
 and acting upon it, he honestly believed the 
 plaintiff had sworn falsely, they would not be 
 justified in finding that the defendant had 
 prosecuted the plaintiff maliciously and with- 
 out probable cause ; this was held a right di- 
 rection ; see 16 Am. L. Rev. 426. See, also, 
 L. R. 8 Q. B. D. 167. 
 
 Probable cause is a question of law for the 
 court; 10 Q. B. 272; 47 Penn. 94. Evi- 
 dence that the prosecution was to obtain pos- 
 session of goods, is proof of want of probable 
 cause ; 47 Penn. 194 ; s. c. 4 Am. L. Reg. 
 443 ; so is evidence that the plaintiff began 
 the prosecution for the purpose of collecting 
 a debt. Probable cause depends upon the 
 prosecutor's belief of guilt or innocence ; 48 
 Barb. 30 ; see supra ; rumors are not, but 
 representations of others are, a foundation 
 for belief of guilt ; 52 Penn. 419. Malice 
 may be inferred from the zeal and activity 
 of the prosecutor conducting the prosecution ; 
 36 Md. 246 ; 8. c. 12 Am. L. Reg. 192. The 
 advice of counsel who has been fully informed 
 of the facts, is a complete justification ; 25 
 Penn. 275 ; 4 Am. L. Reg. N. 8. 281 (S. C. 
 of Illinois) ; otherwise, where the defendant 
 acts on the advice of a magistrate or one not 
 learned in law; 36 Md. 246. 
 
 The malicious prosecution or action must 
 be ended, and the plaintiff must show it was 
 groundless, either by his acquittal or by ob- 
 taining a final judgment in his favor in a civil 
 action; 1 Root, 553; 1 Nott & M'C. 36; 7 
 Cow. 715 ; 2 Dev. & B. 492. But see contra, 
 as to civil suits, Bi^el. Torts, 73 ; 14 East, 
 216 ; because the plaintiff in a civil suit can 
 terminate it whenever he wishes to do so. 
 Any act which is tantamount to a discontinu- 
 ance of a civil suit has the same effect ; as 
 in a case where the plaintiff had been arrested 
 in a civil suit, and the defendant had failed to 
 have the writ returned, and to appear and 
 file a declaration at the return term; 109 
 Mass. 158. 
 
 In criminal cases also, when the prosecuting 
 oflicer enters a dismissal of the proceedings 
 before the defendant is put in jeopardy, this 
 act gives no right to the prisoner against the 
 prosecutor ; for instance, where, in a prosecu- 
 tion for arson, the prosecuting officer enters 
 a nolle prosequi before the jury is sworn ; 4 
 Cush. 217. 
 
 The remedy for a malicious prosecution is 
 an action on the case to recover damages for 
 
MALPRACTICE 
 
 142 
 
 MANDAMUS 
 
 the injury sustained ; 5 Stew. & P. 367 ; 2 
 Conn. 700; 11 Mass. 600; 6 Me. 421; 3 
 Gill & J. 377. See Case. If the prosecu- 
 tion was begun without probable cause, and 
 persisted in for some private end, punitive 
 damages maybe given; 37 Md. 282. See 
 full article in 21 Am. L. lleg. n. s. 281. 
 
 MALFHACTICE. See Mala Praxis. 
 
 MALUM IN SE (Lat.). EvU in itself. 
 
 An offence malum te se is one which is naturally 
 evil, as murder, theft, and the like ; offences at 
 common law are generally mala in se. An offence 
 malum prohibitum, on the contrary, is not natu- 
 rally an evil, but becomes so in consequence of 
 its being forbidden : as playing at games which, 
 being innocent before, have become unlawful in 
 consequence of being forbidden. See Bacon, 
 Abr. Assumpsit (o) ; Mala Pkohibita. 
 
 MALVEILLES. Ill will. In some an- 
 cient records this word signifies malicious 
 practices, or crimes and misdemeanors. 
 
 MALVERSATION. In French Law. 
 
 This word is applied to all punishable faults 
 committed in the exercise of an office, such 
 as corruptions, exactions, extortions, and lar- 
 ceny. Merlin, Kfepert. 
 
 MAN. A human being. A person of the 
 male sex. A male of the human species 
 above the age of puberty. 
 
 In its most extended sense the term includes 
 not only the adult male sex of the human species, 
 but women and children : examples : " of of- 
 fences against man, some are more immediately 
 against the king, others more immediately against 
 the subject." Hawk. PI. Cr. h. 1, c. 2, s. 1. 
 " Offences against the life of man come under 
 the general name of homicide, which in our law 
 signifies the killing of a man by a man." Id. 
 book 1, c. 8, s. 3. 
 
 It was considered in the civil or Roman law 
 that although m,an and perstm are synonymous 
 in grammar, they had a different acceptation In 
 law ; all persons were men, but all men — for ex- 
 ample, slaves — were not persons, but things. 
 See Barrington, Stat. 216, note. 
 
 MANAGrER. A person appointed or 
 elected to manage the affairs of another. A 
 terra applied to those officers of a corporation 
 who are authorized to manage its affairs. 1 
 Bouv. Inst. n. 190. 
 
 One of the persons appointed on the part 
 of the house of representatives to prosecute 
 impeachments before the senate. 
 
 In banking corporations these officers are 
 commonly called directors, and the power to 
 conduct the affairs of the company is vested 
 in a board of directors. In other private cor- 
 porations, such as railroad companies, canal 
 and c"oal companies, and the like, these officers 
 are called managers. Being agents, when 
 their authority is limited, they have no power 
 to bind their principal beyond such authority ; 
 17 Mass. 29; 1 Me. 81. 
 
 In England and Canada the chief executive 
 officer of a branch bank is called a manager. 
 His duties are those of our presidents and 
 cashiers combined. His signature is neces- 
 sary to every contract binding on the bank, 
 
 except entries in the pass-books of customers. 
 He indorses bills, signs bills of exchange and 
 drafts, and conducts the correspondence of 
 the bank. He is under the control of the 
 board of directors of the bank, and there is 
 usually a local or branch board of directors 
 at which he acts as presiding officer. Sewell 
 Bank. 
 
 MANBOTE. A compensation paid the 
 relations of a murdered man by the murderer 
 or his friends. 
 
 MANCIFIUM. The power acquired over 
 a freeman by the mancipatio. 
 
 To form a clear conception of the true import 
 of the word in the Soman jurisprudence, it is 
 necessary to advert to the four distinct powers 
 which were exercised by t\ia pater familias, viz. : 
 the m,anus, or martial power ; the mandpium, 
 resulting from the mancipatio, or alienatio per at 
 et libram, of a freeman ; the dominica potestat, 
 the power of the master over his slaves, and the 
 patria potestai, the paternal power. When the 
 pater familias sold his son, vennm dare, manci- 
 pare, the paternal power was succeeded by the 
 mandpium, or the povf er acquired by the pur- 
 chaser over the person whom he held in mandpio, 
 and whose condition was assimilated to that of a 
 slave. What is most remarkable is, that on the 
 emancipation from the mandpium he fell back 
 into the paternal power, which was not entirely 
 exhausted until he had been sold three times by 
 the pater familias. Si pater Jilium ter venum 
 duit, fllius a patre liber esto. Gains speaks of the 
 mandpatio as imaginaria qucsdam vendiiio, be- 
 cause in his times it was only resorted to for the 
 purpose of adoption or emancipation. See Adop- 
 tion ; Pater Familias ; 1 Ortolan, 112 et seq. 
 
 MANDAMUS. In Practice. This is a 
 high prerogative writ, usually issuing gut of 
 the highest court of general jurisdiction in a 
 state, m the name of the sovereignty, directed 
 to any natural person, corporation, or inferior 
 court of judicature within its jurisdiction, re- 
 quiring them to do some particular thing 
 therein specified, and which appertains to 
 their office or duty. 3 Bla. Com. 110; 4 
 Bacon, Abr. 495 ; per Marshall, Ch. J., in 
 Marbury vs. Madison, 1 Cra. 137, 168. 
 
 Its use is well defined by Lord Mansfield, 
 inKex. vs. Barker, 3 Burr. 1265: "It was 
 introduced to prevent disorder from a failure 
 of justice and defect of police. Therefore it 
 ought to be used upon all occasions when the 
 law has established no specific remedy, and 
 where in justice and good government there 
 ought to be one." " If there be a right, and 
 no other specific remedy, this should not be 
 denied." The same principles are declared 
 by Lord EUenborovgh, in Rex vs. Arch- 
 bishop of Canterbury, 8 East, 219. See 6 
 Ad. & E. 321. The writ of mandamus is the 
 supplementary remedy when the party has a 
 clear right, and no other appropriate redress, 
 in order to prevent a failure of justice. 12 
 Petersd. Abr. 438 (309). It is the absence 
 of a specific legal remedy which gives the 
 court jurisdiction ; 2 Selw. N. P. Mandamus, 
 29 Penn. 181 ; 34 id. 496; 41 Me. IS; 2 
 Pat. & H. 885 ; but the party must have » 
 perfect legal right ; 27 Mo. 225 ; 11 Ind. 205) 
 
MANDAMUS 
 
 148 
 
 MANDAMUS 
 
 20 111. 525 ; 25 Barb. 73 ; 2 Dutch. 135 ; 3 
 Cal. 167. 
 
 The re.meily extends to the control of all 
 inferior tribunals, corporations, public officers, 
 and even private persons in some cases. But 
 more" generally, the English court of king's 
 bench, from which our practice on the subject 
 is derived, declined to interfere by mandamus 
 to require a specific performance of a contract 
 when no public right was concerned ; Ang. & 
 A. Corp. 761 ; 2 Term, 260 ; 6 East, 356 ; 
 Bacon, Abr. Mandamus; 28 Vt. 587, 592. 
 
 It is a proper remedy to compel the per- 
 formance of a specific act where the act is 
 ministerial in its character; 12 Pet. 524; 34 
 Penn. 293 ; 26 Ga. 665 ; 7 Iowa, 186, 390 ; 
 but where the act is of a discretionary ; 6 How. 
 92; 17 id. 284; 12 Cush. 403; 20 Tex. 60; 
 10 Cal. 376 ; 5 Harr. Del. 108 ; 12 Md. 329 ; 
 4 Mich. 187; 5 Ohio St. 528 ; or judicial na- 
 ture ; 14 La. An. 60 ; 7 Cal. 130 ; 18 B. Monr. 
 423 ; 7 E. & B. 366 ; it will lie only to compel 
 action generally ; 11 Cal. 42 ; 30 Ala. N. s. 49 ; 
 28 Mo. 259 ; and where the necessity of act- 
 ing is a matter of discretion, it will not lie 
 even to compel action ; 6 How. 92 ; 5 Iowa, 
 380. 
 
 This remedy will be applied to compel a 
 corporation or public officer ; 14 La. An. 265 ; 
 41 Me. 15; 3 Ind. 452 ; see 7 Gray, 280 ; to pay 
 money awarded against them in pursuance of 
 a statute duty, where no other specific remedy 
 is provided ; 6 Ad. & E. 335 ; 8 id. 438, 910 ; 
 34 Penn. 496 ; but if debt will lie, and the 
 party is entitled to execution, mandamus will 
 not be allowed ; Redf. Railw. § 1 58, citing 6 
 C. B. 70 ; 13 M. & W. 628 ; 4 B. & A. 360 ; 
 1 Q. B. 288. But mandamus will not be 
 granted to enforce a matter of contract or 
 right upon which an action lies in the common- 
 law courts, as to enforce the duty of common 
 carriers ; 7 Dowl. P. C. 566 ; or where the pro- 
 per remedy is in equity ; 3 Term, 646 ; 16 M. 
 & W. 451. But where compensation is claimed 
 for damages done partly under the powers of 
 a statute and partly not, mandamus is the pro- 
 per remedy ; 2 Railw. & C. Cas. 1 ; Redf. 
 Railw. § 158, pt. 3, 4, and notes and cases cited. 
 
 Mandamus is the appropriate remedy to 
 compel corporations to produce and allow an 
 inspection of their books and records, at the 
 suit of a corporator, where a controversy ex- 
 ists in which such inspection is material to his 
 interests ; 2 Stra. 1223 ; 3 Term, 141 ; 4 
 Maule & S. 162. 
 
 It lies to compel the performance by a cor- 
 poration of a variety of specific acts within 
 the scope of its duties ; 34 Penn. 496 ; 26 
 Ga. 665 ; 2 Mete. Ky. 56 ; 84 III. 303 ; s. c. 
 25 Am. Rep. 461. 
 
 The general rule on this subject is, that, 
 if the inferior tribunal or corporate body has 
 a discretion, and acts and exercises it, this 
 discretion cannot be controlled by mandamus ; 
 but if the inferior body refuse to act when 
 the law requires them to act, and the party 
 has no other legal remedy, and where in jus- 
 tice there ought to be one, a mandamus will 
 
 lie to set them in motion, to compel action, 
 and in proper cases, the court will settle the 
 legal principles which should govern, but 
 without controlling the discretion of the sub- 
 ordinate jurisdiction ; Dillon, Mun. Corp. 
 § 665 ; 52 Ala. 87. 
 
 It is the common remedy for restoring per- 
 sons to corporate offices, of which they are 
 unjustly deprived : the title to the office hav- 
 ing been before determined by proceeding by 
 quo warranto ; but it will not lie to try the 
 title to an office of which there is a de facto 
 incumbent; 52 Ala. 87 ; 1 Burr. 402 ; 1 Ld. 
 Raym. 426; 1 Salk. 314; 2 Head, 650; 54 
 Me. 95 ; unless quo warranto does not lie ; 3 
 Johns. Cas. 79 ; but see 20 Barb. 302 ; 9 Md. 
 83 ; 15 111. 492. And see the cases fully re- 
 viewed in Redf. Railw. § 159. 
 
 This remedy must be sought at the earliest 
 convenient time in those cases where impor- 
 tant interests will be affected by the delay ; 
 12 Q. B. 448. But it is often necessary to 
 delay in order to determine definitely the 
 rights and injuries of the several parties con- 
 cerned, as until public works are completed ; 
 9 Dowl. P. C. 614 ; 4 Q. B. 877. 
 
 It is no sufficient answer to the application 
 that the party is also liable to indictment for 
 the act complained of; 2 Railw. Cas. 599; 
 3 Q. B. 528. And where a railway company 
 attempted to take up their rails, they were 
 required by mandamus to restore them, not- 
 withstanding they were also liable to indict- 
 ment, that being regarded a less efficacious 
 remedy ; 2 B. & Aid. 646. But mandamus 
 will always be denied when there is other ade- 
 quate remedy ; 11 Ad. & E. 69 ; 1 Q. B. 288 ; 
 Redf. Railw. § 159, and cases cited in notes. 
 
 It is not a proper proceeding for the cor- 
 rection of errors of an inferior court ; 13 Pet. 
 279, 404; 18 Wend. 79 ; 13 La. An. 481; 7 
 Dowl. & R. 334. Indeed, by statute 6 & 7 
 Vict. ch. 67, § 2, the decisions of the Eng- 
 lish courts upon proceedings in mandamus 
 may be revised on writ of error, and upon 
 principle a writ of error will lie when the de- 
 cision is made to turn upon a question of 
 law and not upon discretion merely; Redf. 
 Railw. § 159, and notes. 
 
 The writ is not demandable, as fnatter of 
 right, but is to be awarded in the discretion 
 of the court; 1 Term, 331, 396, 404, 425; 
 id. 31 ; 49 Barb. 259 ; 2 id. 336 ; Redf. 
 Railw. § 159, and cases cited in notes. 
 
 The power of granting this writ in England 
 seems originally to have been exercised by 
 the court of chancery, as to all the inferior 
 courts, but not as to the king's bench ; 1 
 Vern. 175 ; Ang. & A. Corp. § 697. But 
 see 2 B. & Aid. 646 ; 2 Maule & S. 80 ; 3 
 Aid. & E. 416. But for a great number of 
 years the granting of the prerogative writ of 
 mandamus has been confined in England to 
 the court of king's bench. 
 
 In the United States the writ is generally 
 issued by the highest court of judicature hav- 
 ing jurisdiction at law ; 34 Penn. 496 ; 20 111. 
 525. 
 
MANDAMUS 
 
 144 
 
 MANDATE 
 
 The thirteenth section of the act of con- 
 gress of Sept. 24, 1789, gives the supreme 
 court power to issue writs of mandamus, in 
 cases warranted by the principles and usages 
 of law, to any courts appointed or persons 
 holding office under the authority of the 
 United States. The issuing of a mandamus 
 to courts is the exercise of an appellate juris- 
 diction, and, therefore, constitutionally vested 
 in the supreme court ; but a mandamus di- 
 rected to a public officer belongs to original 
 jurisdiction, and, by the constitution, the ex- 
 ercise of original jurisdiction by the supreme 
 court is restricted to certain specified cases, 
 which do not comprehend a mandamus. The 
 latter clause of the above section, authorizing 
 this writ to be issued by the supreme court, 
 to persons holding office under the authority 
 of the United States, is, therefore, not war- 
 ranted by the constitution, and void ; 1 Cra. 
 175; see 5 Pet. 190; 13 id. 279, 404; 5 
 How. 103. 
 
 The circuit courts of the United States may 
 also issue writs of mandamus ; but their power 
 in this particular is confined exclusively to 
 those cases in which it may be necessary to 
 the exercise of their jurisdiction ; 7 Cra. 604 ; 
 8 Wheat. 698 ; 1 Paine, 453. 
 
 The mode of proceeding in obtaining the 
 writ is : first, to demand of the party to per- 
 form the act. And it would seem that the 
 pairty should be made aware of the purpose 
 of the demand; 3 Ad. & E. 217, 477. The 
 refusal must be of the thing demanded, and 
 not of the right merely ; 5 B. & Ad. 978. 
 The refusal should be absolute and unquali- 
 fied ; but it may be by silence only. But 
 the party should understand that he is required 
 to perform the duty upon pain of the legal 
 redress being resorted to without further de- 
 lay; 4 Railw. Cas. 112. But any exception 
 to the demand should be taken as a prelimi- 
 nary question; 10 Ad. & E. 531; Kedf. 
 Kailw. § 190, and notes. 
 
 The application for a mandamus may be 
 by motion in court, and the production of ex 
 parte affidavits, in support of the facts al- 
 leged ; in which case an alternative writ issues, 
 as matter of course, generally, and the case 
 is heard'upon the excuse alleged in the return 
 to the alternative writ ; see 2 Mete. Ky. 66. 
 Or the party may apply for the writ by 
 formal petition, setting forth the grounds in 
 detail, in which case the merits of the ques- 
 tion are determined upon the traverse of the 
 petition, instead of the traverse of the return 
 to the alternative writ ; 9 Ohio St. 599. 
 And in either form, if the application pre- 
 vails, a peremptory mandamus issues ; the 
 only proper or admissible return to which is a 
 certificate of compliance with its requisitions, 
 without further excuse or delay ; 1 Q. B. 61 6 ; 
 1 Iowa, 179. See Ang. & A. Corp. § 716. 
 
 The English practice is, if the first writ 
 is denied, even on the ground of defects in 
 the affidavits, not to permit a second applica- 
 tion to be made ; 8 Ad. & E. 418. So, also, 
 if it fail for other defects of form. But a 
 
 more liberal. practice obtains in the American 
 courts. Redf. Eailw. § 1 90, notes. 
 
 Costs rest in the discretion of the court. In 
 the English courts they are allowed when the 
 application fails, but not always when it pre- 
 vails; Reaf. Railw. § 169. The more just rule 
 in such cases is to allow costs to the prevailing 
 party, unless there is some special reason for 
 denying them ; and this rule now generally 
 prevails; 8 Ad. & E. 901, 906; 5 id. 804- 
 1 Q. B, 636, 761 ; 6 E. h. & Eq. 267. 
 
 By the Common-Law Procedure Act, 17 & 
 18 Vict. e. 125, any party requiring sftiy order 
 in the nature of specific performance may 
 commence his action in any of the superior 
 courts of common law, in Westminster Hall, 
 except in replevin and ejectment, and may in- 
 dorse upon the writ and copy to be served that 
 he will claim a writ of mandamus, and may 
 renew the claim in his declaration, and if the 
 writ is awarded in the final judgment in the 
 case, it will issue peremptorily in the first in- 
 stance. It has been held that a plaintiff could 
 not under this act enforce specific performance 
 of a contract; but that the act contemplated a 
 public duty in which the plaintiff" among others 
 was interested ; and not a private obligation 
 which the plaintiff alone could enforce ; but 
 under the judicature acts, it is allowable for 
 the court by an interlocutory order to grant a 
 mandamus in any cases in which it shall ap- 
 pear just and convenient; Mozl. & W. Diet. 
 The form of this statutory mandamus is very 
 brief, and its execution is enforced by attach- 
 ment. The prerogative writ of mandamus 
 is still retained in the English practice ; but it 
 is obvious that the foregoing statute must 
 have very essentially abridged its use, as well 
 as that of decrees in chancery, for specific 
 performance. See 8 E. & B. 512 ; Kedf. 
 Railw. § 190, pi. 8. 
 
 Controverted questions of fact, arising in 
 the trial of applications for mandamus in the 
 English practice, are referred to the determin- 
 ation of a jury ; 1 Railw. Cas. 377 ; 2 id. 714 ; 
 8 Ell. & B. 512 ; 1 East, 114. By the Ameri- 
 can practice, questions of fact, in applications 
 for mandamus, are more commonly tried by 
 the court ; 2 Mete. Ky. 56. See Angell & 
 Ames, Corp. ; High, Extra. Leg. Rem. 
 
 MANCIPATIO. See Manumission. 
 
 MANDANT. The bailor in a contract of 
 mandate. 
 
 MANDATARY, MANDATARIUS. 
 
 One who undertakes to perform a mandate. 
 Jones, Bailm, 63. He that obtains a benefice 
 by mandamus. Cowel. 
 
 MANDATE. A judicial command or 
 precept issued by a court or magistrate, 
 directing the proper officer to enforce ajudg- 
 ment, sentence, or decree. Jones, Bailm. 52. 
 
 A bailment of property in regard to which 
 the bailee engages to do some act without re- 
 ward. Story, Bailm. § 137. 
 
 The contract of mandate in the civil law is not 
 limited to personal property, nor does it require 
 a delivery of personal property when it relates to 
 
MANDATE 
 
 145 
 
 MANIA 
 
 that. Pothier, de Mand. n. 1 ; La. Civ. Code, 
 3954-2964. It is, however, restricted to things 
 of a personal nature at common law, and of 
 these there must be a delivery, actual or con- 
 structive. Story, Bailm. § 142 ; 3 Strobh. 343. 
 Mandates and deposits closely resemble each 
 other ; the distinction being that in mandates the 
 care and service are the principal, and the cus- 
 C tody the accessory ; while in deposits the custody 
 Is the principal thing, and the care and service 
 are merely accessory. Story, Bailm. § 140. 
 
 For the creation of a mandate it is neces- 
 sary, — first, that there should exist something, 
 which should be the matter of the contract ; 
 secondly, that it should be done gratuitously ; 
 and, thirdly, that the parties should volun- 
 tarily intend to enter into the contract. Po- 
 thier, Pand. 1. 17, t. 1, p. 1, § 1 ; Pothier, 
 de Mandat, c. 1, § 2. 
 
 There is no particular form or manner of 
 entering into the contract of mandate pre- 
 scribed either by the common law or by the 
 civil law, in order to give it validity. It may 
 be verbal or in writing ; it may be express or 
 implied ; it may be in solemn form or in any 
 other manner. Story, Bailm. § 160. The 
 contract may be varied at the pleasure of the 
 parties. It may be absolute or conditional, 
 general or special, temporary or permanent. 
 Wood. Civ. Law, 242 ; 1 l>omat, b. 1, t. 15, 
 §§ 1, 6, 7, 8; Pothier, de Mandat,. e. 1, § 3, 
 nn. 34-36. 
 
 The mandatary, upon undertaking his trust 
 and receiving his article, is bound to perform 
 it as agreed upon ; 1 Taunt. 523 ; 5 B. & 
 AM. 117; 1 Sneed, 248; 6 Binn. 308 ; 5 
 Fla. 38 ; and is responsible only for gross 
 negligence; 2 Kent, 571-573; 1 H. Bla. 
 158; 4 B. & C. 345; 2 Ad. & E. 256; 16 
 How. 475 ; 3 Mas. 132 ; 14 S. & K. 275 ; 
 17 Mass. 459; 2 Hawks, 146; 8 Mete. 91 ; 
 but in considering the question of negligence, 
 regard is to be had to any implied undertak- 
 ing to furnish superior skill arising from the 
 known ability of the mandatary ; Story, 
 Bailm. §§ 177, 182; 20 Mart. La. 68. 
 Whether a bank is liable for neglect of its 
 agents in collecting notes, see 22 Wend. 215 ; 
 
 3 Hill, N. Y. 560 ; 8 N. Y. 459 ;'3 Hill, 77 ; 
 
 4 Rawle, 384 ; 2 Gall. 565 ; 10 Cush. 583 ; 
 12 Conn. 303; 6 H. & J. 146; 4 Whart. 
 105 ; 1 Pet. 25. He must render an account 
 of his proceedings, and show a compliance 
 with the condition of the bailment ; Story, 
 Bailm. §§ 191 e« seq. 
 
 The dissolution of the contract may be by 
 renunciation by the mandatary before com- 
 mencing the execution of the undertaking ; 2 
 M. & W. 145 ; 1 Mood. & R. 38 ; 22 E. L. 
 & Eq. 501 ; 8 B. Monr. 415 ; 3 Fla. 38 ; by 
 revocation of authority by the mandator; 6 
 Pick. 198; 5 Binn. 316; 5 Term, 213; see 
 4 Taunt. 541; 16 East, 382; by the deaiA 
 of the mandator ; 6 East, 356; 5 Esp. 118; 
 2 V. & B. 61 ; 2 Mas. 244; 8 Wheat. 174 ; 
 by death of the mandatary ; 2 Kent, 504 ; 8 
 Taunt. 403 ; and by change of state of the 
 parties ; Story, Ag. § 481 ; and in some 
 cases by operation of law ; Story, Ag. § 500. 
 Vol. II.— 10 
 
 The question of gross negligence is one for 
 the jury ; 2 Ad. & E. 256 ; 11 Wend. 25 ; 
 and the plaintifi' must show it ; 2 Ad. & E. 
 80; 10 Watts, 335. See 3 Johns. 170; 2 
 Wheat. 100; 7 B. Monr. 661; 8 Humphr. 
 430. 
 
 In Civil Lavir. The instructions which 
 the emperor addressed to a public functionary, 
 and which were to serve as rules for his con- 
 duet. These mandates resembled those of 
 the proconsuls, the mandata jurisdictio, and 
 were ordinarily binding on the legates or 
 lieutenants of the emperor of the imperial 
 provinces, and there they had the authority 
 of the principal edicts. Savigny, Dr. Bom. 
 c. 3, § 24, n. 4. 
 
 MANDATOR. The person employing' 
 another to perform a mandate. Story, Bailm. 
 § 138 ; 1 Brown Civ. Law, 382 ; Halif. Anal. 
 Civ. Law, 70. 
 
 MANDATOR?. In the construction of 
 statutes, this word is applied to such as re- 
 quire to be obeyed, under penalty of having 
 proceedings under them declared void. Direc- 
 tory statutes must be obeyed, but, if not, do 
 not invalidate the act. See Statutes. 
 
 MANDAVI BALIilVO. In English 
 Practice. The return made by a sheriif 
 when he has committed the execution of a 
 writ to a bailiff of a liberty, who has the right 
 to execute the writ. 
 
 MANHOOD. In Feudal Law. A term 
 denoting the ceremony of doing homage by 
 the vassal to his lord. The formula used was 
 devenio vester homo, I become your man. 2 
 Bla. Com. 54 ; 1 Dev. & B. Eq. 585. See 
 Homage. 
 
 MANIA. In Medical Jurisprudence. 
 
 This is the most common of all the forms of 
 recent insanity, and consists of one or both 
 of the following conditions, viz. : intellectual 
 aberration, and morbid or affective obliquity. 
 
 In other words, the maniac either misappre- 
 hends the true relations between persons and 
 things, in consequence of which he adopts no- 
 tions manifestly absurd, and believes in occur- 
 rences that never did and never could take place, 
 or his sentiments, affections, and emotions are so 
 perverted that whatever excites their activity is 
 viewed through a distorting medium, or, which 
 is the most common fact, both these conditions 
 may exist together, in which case their relative 
 share in the disease may differ in such a degree 
 that one or the other may scarcely be perceived 
 at all. According as the intellectual or moral 
 element prevails, the disease is called intellectual 
 or moral mania. Whether the former is ever 
 entirely wanting has been stoutly questioned, 
 less from any dearth of facts than from some 
 fancied metaphysical incongruity. The logical 
 consequence of the doubt is that in the absence 
 of intellectual disturbance there is really no in- 
 sanity, — the moral disorders proceeding rather 
 from unbridled passions than any pathological 
 condition. Against all such reasoning it will be 
 sufficient here to oppose the very common fact 
 that in every collection of the insane may be 
 found many who exhibit no intellectual aberra- 
 tion, but ill whom moral disorders of the most 
 
MANIA 
 
 146 
 
 MANIA 
 
 flagrant kind present a marked contrast to the 
 previous character and habits of life. 
 
 Both forms of mania may be either general or 
 partial. In the latter, the patient has adopted 
 some notion having a very limited influence upon 
 his mental movements, while outside of that no 
 appearance of impairment or irregularity can be 
 discerned. Pure monomania, as this form of 
 insanity has been often called, — that is, a mania 
 confined to a certain point, the understanding 
 being perfectly sound in every other respect,— is, 
 no doubt, a veritable fact, but one of very rare 
 occurrence. The peculiar notions of the insane, 
 constituting insane belief, are of two kinds : 
 delusions and hallucinations. By the former is 
 meant a firm belief in something impossible, 
 either in the nature of things or in the circum- 
 stances of the case, or, if possible, highly Im- 
 probable, and associated in the mind of the 
 patient with consequences that have to it only a 
 fanciful relation. By hallucination is meant an 
 impression supposed by the patient, contrary to 
 all proof or possibility, to have been received 
 through one of the senses. For instance, the 
 belief that one is the Pope of Rome is a delusion ; 
 the belief that one hears voices speaking from 
 the walls of the room, or sees armies contending 
 in the clouds, is a hallucination. The latter Inf- 
 plies some morbid activity of the perceptive 
 powers ; the former is a mistake of the intellect 
 exclusively. 
 
 The legal consequences of partial in- 
 tellectual mania in criminal cases are not 
 yet very definitely settled. In the trial of 
 Hadfield, Mr. Erskine, his counsel, declared 
 that delusion was the true test of the kind 
 of mental disease which annuls criminal re- 
 sponsibility ; and the correctness of the prin- 
 ciple was unhesitatingly recognized by the 
 court. In subsequent trials, however, it has 
 been seldom mentioned, being discarded for 
 other more favorite tests. In the authorita- 
 tive statement of the law made by the Eng- 
 • lish judges, in 1843, in reply to queries pro- 
 pounded by the house of lords, it is recognized 
 as a sufficient plea in defence of crime, under 
 certain qualifications. The effect of the de- 
 lusion on the quality of the act will be pre- 
 cisely the same as if the facts in conhection 
 with it were real. "Forexample," theysay, 
 "if under the influence of delusion the per- 
 son supposes another man to be in the act of 
 attempting to take away life, and he kills 
 that man, as he supposes, in self-defence, he 
 would be exempt from punishment. If his 
 delusion was that the deceased had inflicted 
 a serious injury to his character and fortune, 
 and he killed him in revenge for such sup- 
 posed injury, he would be liable to punish- 
 ment." 10 CI. & F. 200. "If a man had 
 the delusion that his head was made of glass, 
 that would be no excuse for his killing a man : 
 he would know very well that, although his 
 head was made of glass, that was no reason 
 why he should kill another man, and that it 
 was a wrong act ; and he would be properly sub- 
 jected to punishment for that act;" Baron 
 Alderson, in Reg. vs. Pate, Time.<i, July 12, 
 1850. In Cora. vs. Rogers, 7 Mete. 500, 
 this view was adopted, and has become au- 
 thority in this country. At first sight this 
 doctrine seems to be very reasonable; but 
 
 herein consists its fallacy, in expecting sound 
 logical reasoning from the insane. To sup- 
 pose that one may kill another for some little 
 affront or injury is no less an indication of in- 
 sanity than to suppose that one's head is made 
 of glass, and he is no more responsible for one 
 than for the other. It is a characteristic trait 
 of the insane that they do not gsiuge the meas- 
 ure of their retaliation for the fancied in- 
 juries which they suff'er by the standards of 
 sane men. The doctrine of the courts, there- 
 fore, is in direct conflict with the facts of sci- 
 ence. It also indicates the unwillingness com- 
 mon among all classes of minds to regard any 
 person as irresponsible who, notwithstanding 
 some delusions, conducts himself with shrewd- 
 ness and discretion in most of the relations of 
 life. 
 
 In civil cases the prevailing doctrine is that 
 partial intellectual mania invalidates, as it 
 certainly should, any act performed under its 
 influence. The principle was enforced with 
 remarkable clearness and ability by Sir John 
 Nicholl, in the celebrated case of Dew vs. 
 Clark, 3 Add. Eccl. 79. See Johnson vs. 
 Moore's heirs, 1 Litt. Ky. 371. This ia 
 noticeable as being opposed to the principle 
 of what was then the leading case on the sub- 
 ject, Greenwood vs. Greenwood, 13 Ves. 88, 
 sed contra, 3 Curt. Eccl. 337, where a will 
 was established which was made under the 
 direct influence of a delusion. More recently, 
 however. Lord Brougham declared that, in 
 regard to legal consequences, partial is not 
 to t)e distinguished from general insanity, be- 
 cause it is impossible to assign limits to the 
 action of the former in any given case. If 
 the mind were an aggregate of various facul- 
 ties, then it might he possible, perhaps, to 
 indicate those which are diseased and trace 
 the operation of the disease ; but, the fact 
 being that the mind is one and indivisible, 
 insanity on one point renders it unreliable on 
 any bther, and, consequently, must invalidate 
 any civil act, whether sensible and judicious 
 or manifestly prompted by the delusion. If, 
 for instancj, a person believing himself to be 
 Emperor of Germany should make his will, 
 and, while so doing, something should occur 
 to lead him to utter his delusion, then cer- 
 tainly that will cannot be established, how- 
 ever correct and rational its dispositions may 
 be. In this view of the matter, his lordship 
 said he had the concurrence of Lord Lang- 
 dale, Dr. Lushington, and Mr. T. Peraberton 
 Leigh. Waring vs. Waring, 6 Thornt. 388. 
 It is not probable, however, that the common 
 pra<?tice, founded as it is on our maturest 
 knowledge of insanity, will be readily aban- 
 doned on the strength of a showy speculation. 
 It may now be considered as the settled doe- 
 trine of English and American courts that 
 partial insanity may or may not invalidate a 
 will. 
 
 In general intellectual mania, excepting 
 that form of it called raving, it is not to be 
 understood that the mind is irrational on 
 every topic, but rather that it is the sport of 
 
MANIA 
 
 147 
 
 MANIA 
 
 vague and shifting delusions, or, where these 
 are not manifest, has lost all nicety of intel- 
 lectual discernment, and the ability to perform 
 any continuous process of thought with its 
 customary steadiness and correctness. It is 
 usually accompanied by feelings of estrange- 
 ment or indifference towards those who at 
 other times were objects of affection and in- 
 terest. A common feature of the disease 
 is either more or less nervous exaltation, 
 manifested by loquacity, turbulence, and great 
 muscular activity, or depression, indicated by 
 silence, gloom, painful apprehensions, and 
 thoughts of self-destruction. 
 
 The legal consequences of general intellec- 
 tual mania depend somewhat on the violence 
 of the disease, the instructions of the court, 
 the opinions of experts, and the intelligence 
 of the jury. In its higher grades, where all 
 reason has disappeared, and the person knows 
 nothing correctly, responsibility is unquestion- 
 ably annulled. 1 Hale, PI. Cr. 30. In cases 
 where reason has not completely gone, — where 
 the person converses rationally on some topics, 
 and conducts himself with propriety in some 
 relations of life, — the law does not regard him 
 as necessarily irresponsible. It lays down 
 certain criteria, or tests, and the manner in 
 which he stands these decides the question of 
 guilt or innocence. On these points the.prac- 
 tice varied to such a. degree that it was im- 
 possible to say with any confidence what the 
 law actually was. Ray, Med. Jur. 42. In 
 this dilemma, the house of lords propounded 
 to the judges of England certain queries, for 
 the purpose of obtaining an authoritative ex- 
 position of the law. 10 CI. & F. 200. These 
 queries had reference chiefly to the effect of 
 delusions ; and the reply of the judges has 
 been jiist considered. In regard to the effect 
 of insanity generally, they reply that " to 
 establish a defence on the ground of insanity 
 it must be clearly proved that at the time of 
 committing the act the party accused was 
 laboring under such a defect of reason, from 
 disease of the mind, as not to know the nature 
 and quality of the act he was doing, or, if he 
 did know it, that he did not know he was 
 doing what was wrong." In regard to this 
 criterion, it is enough to say that had it been 
 always used it woind have produced the con- 
 viction of most of those who. are universally 
 regarded as having been properly acquitted. 
 Hadfield, for instance, knew that in attempts 
 ing the life of the king he was doing wrong, 
 and that the act, if successful, would be mur- 
 der ; but he thought it would lead to the ac- 
 complishment of great ends, and he was ready 
 to meet the punishment he deserved. So, 
 too, in regard to the common case of a person 
 killing his children to prevent their coming to 
 want : he is perfectly aware of the nature and 
 quality of the act, but considers himself jus- 
 tified by the end proposed. And yet such 
 persons have been generally acquitted, The 
 truth is, these criteria have no foundation in 
 nature, and do not truly indicate the extent 
 to which the disease has affected the opera- 
 
 tions of the mind. Insanity once admitted, 
 in any degree, it is only sheer presumption, 
 not wisdom, to say that it could not have per- 
 verted the action of the mind in regard to any 
 particular criminal act. Bay, Med. Jur. Ins. 
 60, 64, 273-284. 
 
 In moral or effective mania, the disorder is 
 manifested chiefly, if not entirely, in the 
 sentiments or propensities, which are essen- 
 tial parts of our ment^il constitution, and, of 
 course, as liable to disease as the intellectual 
 faculties. It may be partial or general. In 
 the former, a single propensity is excited to 
 such a degree of activity as to impel the per- 
 son to its gratification by an irresistible force, 
 while perfectly conscious of the nature of the 
 act and deploring the necessity that controls 
 him. Our limits allow us to do but little 
 more than to indicate the principal of these 
 morbid impulses : — propensity to kill, homi- 
 cidal monomania ; propensity to steal, klepto- 
 mania ; sexual propensity, aidoiomania ; pro- 
 pensity to burn, pyromania ; propensity to 
 drink, dipsomania. In the first, the patient 
 is impelled by an inward necessity to take 
 life, without provocation, without motive. 
 The victim is often the patient's child, or 
 some one to whom he has been tenderly at- 
 tached. In most cases there has been some 
 derangement of health, or some deviation 
 from the ordinary physiological condition, 
 such as delivery, suppressed menstruation ; 
 but occasionally no incident of this kind can 
 be de'tected; the patient has been, appa^ 
 rently, in his ordinary condition, both bodily 
 and mental. Kleptomania occurs in persons 
 of a previously irreproachable life, who may 
 be in easy circumstances, and, by education 
 and habit, above all petty dishonesty. The 
 objects stolen are usually, not always, of 
 triflng value, and put away out of sight as 
 soon as obtained. It generally occurs in con- 
 nection with some pathological or other ab- 
 normal conditions, — as a sequel of fever or 
 blows on the head, of pregnancy and disor- 
 dered menstruation, and the precursor of 
 mania and organic disease of the brain. Pyro- 
 mania always occurs in young subjects, and 
 is supposed to be connected with disordered 
 menstruation, or that physiological evolution 
 which attends the transition from youth to 
 manhood. Doubts have been inconsiderately 
 expressed as to the maniacal character of 
 these singular impulses, which are attributed 
 to depravity of character rather than disease. 
 Nothing, however, is better established by an 
 abundance of cases related by distinguished 
 observers. In spite of all metaphysical cavils, 
 there are the cases on record ; and there they 
 will remain, to be increased in number with 
 every year's observation. 
 
 Nothing can be more contrary to the spirit 
 of the common law than to show any favor to 
 the plea of this kind of insanity in defence of 
 crime. Occasionally, however, this defence 
 has prevailed in minor offences, owing more 
 to favorable accessory circumstances than to 
 its intrinsic merits. Juries have been loath 
 
MANIA 
 
 148 
 
 MANKIND 
 
 to convict of theft a man who towards the 
 close of an exemplary life has been detected 
 in stealing things of insignificant value, or a 
 woman who when pregnant, and only then, 
 forgets entirely the distinctions of meum and 
 tuum, though at all other times a model of 
 moral propriety. In cases of homicide, the 
 defence of moral mania has been too seldom 
 made, either in this country or England, to 
 settle the law on the subject. But there is 
 no reason to suppose that the old criteria 
 would be dispensed with unless some peculiar 
 features of the case conveyed unquestionable 
 evidence of insanity. In 1846, C, J. Gibson, 
 of Pennsylvania, admitted that " there is a 
 moral or homicidal insanity, consisting of an 
 irresistible , inclination to kill or to commit 
 some other particular offence," which would 
 be a competent defence. Wharton, Ment. 
 Unsound. 43. Just previously, C. J. Shaw, 
 in Com. vs. Rogers, 7 Mete. 500, had men- 
 tioned an "uncontrollable impulse" as among 
 the conditions which would annul criminal re- 
 sponsibility. In practice, the objection would 
 always be urged that such impulses as those 
 under consideration are not uncontrollable. 
 
 In general moral mania, it is not to be sup- 
 posed that the sentiments and propensities are 
 all and equally disordered. On the contrary, 
 the propensities may not be excessively active, 
 though occasionally one may crave unusual 
 indulgence. The essential feature of general 
 moral mania is that the moral relations, where- 
 by the conduct is governed, more than by the 
 deductions of reason, are viewed through a 
 distorting medium. This condition is usually 
 accompanied by a perversion of some of the 
 sentiments that inspire hope, fear, courage, 
 relf-reliance, self-respect, modesty, veracity, 
 domestic affection. The patient is eager and 
 sanguine in the pursuit of whatever strikes 
 his fancy, ready with the most plausible rea- 
 sons for the success of the wildest projects, 
 viewing every prospect through a rose-colored 
 medium, and regardless of the little proprieties 
 and amenities of life. Love for others is re- 
 placed by aversion or indifference ; the least 
 contradiction or check is met by anger or im- 
 patience ; he is restless, insensible to fatigue, 
 and sleeps comparatively little. In some 
 cases, and often at different periods in the 
 same case, the very opposite moral condition 
 occurs. Without cause, true or delusive, the 
 person is completely wretched. 'The past af- 
 fords him no pleasure, the future reveals not 
 a- single gleam of hope, and the ordinary 
 sources of comfort and joy only serve to 
 darken the cloud of doubt, apprehension, and 
 despair in which he is enveloped. 
 
 There is no good reason why general 
 moral mania should not be followed by the 
 same legal consequences as those of intellect- 
 ual mania. True, the intellect is supposed to 
 be sound ; but that is only one element of re- 
 . sponsibility, which requires, besides a knowl- 
 edge of the right and true, the power, sup- 
 plied only by the moral faculties, to obey 
 their dictates. If the latter are diseased. 
 
 then is responsibility annulled just as effect- 
 ually as if the knowing faculties were dis- 
 ordered by delusion. The conduct of most 
 men is determined in a great degree as much 
 by the state of their feelings as by the con- 
 clusions of their understandings ; and when 
 the former are affected by disease, nothing 
 can be more unphilosophical, more contra- 
 dictory to facts, than to ignore its existence 
 altogether in settling the question of respon- 
 sibility. Theoretically, this form of insanity 
 is not recognized by courts. In Keg. vs. 
 Barton, it was pronounced by Baron Parke 
 to be "a dangerous innovation coming in with 
 the present century." 3 Cox, Cr. Cas. 275. 
 "A man might say he picked a pocket from 
 some uncontrollable impulse; and in that 
 case the law would have an uncontrollable 
 impulse to punish him for it." Baron 
 Alderson, in Reg. vs. Pate, Lond. Times, July 
 12, 1850. See, also, Chitty, Med. Jur. 352; 
 3 C. & K. 185. In Frere vs. Peacocke, 1 Eob. 
 Ec. 448, the court. Sir Herbert Jenner Fust, 
 said "he was not aware of any case decided 
 in a court of law, where moral perversion of 
 the feelings, unaccompanied with delusion, 
 has been held a sufficient ground to invalidate 
 and nullify the acts of one so affected." In 
 this country, C. J. Homblower, in State vs. 
 Spencer, 1 Zabr. 196, declared himself 
 strongly against the doctrine of moral insan- 
 ity. On the other hand, C. J. Lewis, of 
 Pennsylvania, in a case he was trying, de- 
 clared emphatically that, ' ' where its existence 
 is fully established, this species of insanity 
 relieves from accountability to human laws." 
 Whart. Ment. Unsound. 44. In cases not 
 capital, the verdict would probably be deter- 
 mined rather by the circumstances of the 
 case than by any arbitrary rule of law. See 
 Iksanitt. 
 
 MANIA A FOTU. See Delibiuh 
 Tremens ; Whart. & St. Med. Jur. 
 
 MANIFEST. In Commercial Law. A 
 written instrument containing a true account 
 of the cargo of a ship or a commercial vessel. 
 
 As to the requirements of the United States 
 laws in respect to manifests, see 1 Story, U. 
 S. Laws, 593, 594. 
 
 The want of a manifest, where one is re- 
 quired, and also the making a false manifest, 
 are grave offences. 
 
 In 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. 
 
 On the declaration of war, a manifesto is 
 usually issued, in which the nation declaring 
 the war states the reasons for so doing. Vattei, 
 1. 3, c. 4, § 64 ; Wolffius, § 1187. 
 
 MANKIND. Persons of the male sex; 
 the human species. The statute of 25 Hen. 
 VIII., c. 6, makes it felony to commit sodomy 
 with mankind or beast. Females as well as 
 
MANNER 
 
 149 
 
 MANSLAUGHTER 
 
 males are included under the term mankind. 
 Fortescue, 91 ; Bacon, Abr. Sodomy. See 
 Gender. 
 
 MANZTER. See Words. 
 
 MANNER AND FORM. In 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 circum- 
 stances attending it, if they were not origin- 
 ally material and necessary to be proved as 
 laid. 3 Bouvier, Inst. 297. See MoDO et 
 Forma. 
 
 MANNOPtrS (Siat.). An ancient word, 
 which signifies goods taken in the hands of 
 an apprehended thief. 
 
 MANOR. 
 
 This word is derived from the French manoir, 
 and signifies a house, residence, or habitation. 
 At present Its meaning is more enlarged, and in- 
 cludes not only a dwelling-house, but also lands. 
 See Co. Litt. 58, 108 ; 2 Rolle, Abr. 121 ; Merlin, 
 lUpert, Manoir. Serg. Land Laws of Fenn. 195. 
 
 In English La-v^. A tract of land origin- 
 ally granted by the king to a person of rank, 
 part of which (terrce tenementales) were given 
 by the grantee or lord of the manor to his 
 followers, the rest he retained, under the name 
 of his demesnes (terrce domintcales). That 
 which remained uncultivated was called the 
 lord's waste, and served for public roads, and 
 commons of pasture for the lord and his ten- 
 ants. The whole fee was called a lordship, or 
 barony, and the court appendant to the manor 
 the court-baron. The tenants, in respect to 
 their relation to this court and to each other, 
 were called pares curiae ; in relation to the 
 tenure of their lands, copyholders (q. v.), as 
 holding by a copy of the record in the lord's 
 court. 
 
 The franchise of a manor ; i. e. the right to 
 jurisdiction and rents and services of copy- 
 holders. Cowel. No new manors were created 
 in England after the prohibition of sub-infeu- 
 dation by stat. Quia Emptores, in 1290. 1 
 "Washb. R. P. 30. 
 
 In American Law. A manor is a tract held 
 of a proprietor by a fee-farm rent in money or 
 in kind, and descending to the oldest son of 
 the proprietor, who in New York is called a 
 patroon. 9 Seld. 291. 
 
 Manor is derived originally either from Lat. 
 manendo, remaining, or from Brit, maer, 
 stones, being the place marked out or inclosed 
 by stones. Webst. 
 
 MANSE. Habitation ; farm and land. 
 Spelman, Gloss. Parsonage or vicarage house. 
 Paroch. Antiq. 431 ; Jacob, Law Diet. So 
 in Scotland. Bell, Diet. 
 
 MANSION-HOUSE. Any house of 
 dwelling, in the law of burglary, etc. Ooke, 
 3d Inst. 64. 
 
 The terra " mansion-house," in its com- 
 mon sense, not only includes the dwelling- 
 house, but also all the buildings within the 
 curtilage, as the dairy-house, the cow-house, 
 the stable, etc. ; though not under the same 
 roof nor contiguous. Burn, Inst. Burglary ; 
 1 Thomas, Co. Litt. 215, 216 ; 1 Hale, PI. 
 Cr. 558; 4 Bla. Com. 225. See 3 S. & 
 K. 199 ; 4 Strobh. 372 ; 13 Bost. L. Rep. 
 157 ; 4 Call, 409 ; 14 M. & W. 181 ; 4 C. B. 
 105 ; 1 Whart. Cr. L. § 783. 
 
 MANSLAUGHTER. In Criminal 
 Law. The unlawful killing of another 
 without malice either express or implied. 4 
 Bla. Com. 190 ; 1 Hale, PI. Cr. 466. 
 
 The distinction between manslaughter and 
 murder consists in the following. In the former, 
 though the act which occasions the death be un- 
 lawful, or likely tq be attended with bodily mis- 
 chief, yet the malice, either express or implied, 
 which is the very essence of murder, is presumed 
 to be wanting in manslaughter ; 1 East, PI. Cr. 
 218 ; Foster, 290 ; 5 Gush. 304. 
 
 It also differs from murder in this, that there 
 can be no accessaries before the fact, there hav- 
 ing been no time for premeditation ; 1 Hale, PI. 
 Cr. 437 ; 1 Russ. Cr. 485 ; 1 Bish. Cr. L. 678. 
 
 Involuntary manslaughter is such as hap- 
 pens without the intention to inflict the in- 
 jury. 
 
 Voluntary manslaughter is such as happens 
 voluntarily or with an intention to produce 
 the injury. , 
 
 The distinction between voluntary and Invol- 
 untary manslaughter is now obsolete, and unless 
 where the terms are used in statutes defining the 
 crimes, they are not used in indictment, verdict, 
 or sentence. But where the distinction is made 
 by statute, there can be no conviction of involun- 
 tary manslaughter on an indictment for volun- 
 tary ; 1 Whart. Cr. L. § 307. 
 
 Homicide may become manslaughter in 
 consequence of provocation ; mutual combat ; 
 in case of resistance to public officers, etc. ; 
 killing in the prosecution of an unlawful or 
 wanton act ; or killing in the prosecution of 
 a lawful act improperly performed, or per- 
 formed without lawful authority. 
 
 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, there- 
 fore, no answer when express malice is 
 proved; 1 Russ. Cr. 440 ; Foster, 132 ; 1 
 East, PI. Cr. 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 ; 3 Wash. 
 C. C. 515; 4 Penn. 264; 2 N. Y. 193; 25 
 Miss. 383 ; 3 Gratt. 594 ; 6 Blackf. 299 ; 8 
 Ired. 344 ; 18 Ala. n. s. 720 ; 15 Ga. 223 ; 
 10 Huraphr. 141 ; 1 C. & K. 556 ; 6 C. & P. 
 324; 6 How. St. Tr. 769; 17 id. 57; 1 
 Leach, 151. 
 
 In cases of mutual combat, it is generally 
 manslaughter only, when one of the parties 
 is killed ; J. Kel. 58, 119 ; 4 D. & B. 191 ; 
 1 Jones, No. C. 280 ; 2 C. & K. 814. When 
 
MANSTEALING 
 
 150 
 
 MANUMISSION 
 
 death ensues from duelling, the rule is differ- 
 ent ; and such killing is murder. 
 
 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 put of his juris- 
 diction, the billing is manslaughter, or excu- 
 sable homicide, according to the circumstances 
 of the case; 1 Mood. Cr. Cas. 80, 132 ; 1 
 Hale, PI. Cr. 458 ; 1 East, PL Cr. 314 ; 2 
 Stark. N. P. C. 205. _ 
 
 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; Lew. Cr. Cas. 179. 
 
 When death ensues from the performance 
 of a lawful act, it may, in consequence of the 
 negligence of the offender, amount to man- 
 slaughter. For instance, if the death had 
 been occasioned by negligent driving ; 1 East, 
 PI. Cr. 263 ; 1 C. & P. 320 ; 6 id. 129. 
 Again, when death ensues from the gross neg- 
 ligence of a medical or a surgical practitioner, 
 it is manslaughter. It is no crime for any to 
 administer medicine ; but it is a crime to ad- 
 minister it so rashly and carelessly, or with 
 such criminal inattention, as to produce 
 death ; and in this respect there is no differ- 
 ence between the most regular practitioner 
 and the greatest quack ; 1 F. & F. 619, 521 ; 
 3 C. & K. 202 ; 4 C. & P. 440 ; 1 B. & H. 
 Lead. Cr. Cas. 46-48. And see 6 Mass. 134 ; 
 1 Hale, PI. Cr. 429 ; 8 C. & P. 632. 
 
 MANSTEALING. A word sometimes 
 used synonymously with kidnapping (q. «.). 
 The latter is more technical. 4 Bla. Com. 
 219. 
 
 MANir FORTI (Lat. with strong hand). 
 A term used in pleading in cases of forcible 
 entry. No other words are of equal import. 
 It implies greater force than the words vi et 
 armis; 10 Ired. 39; 8 Term, 362; 4 Cush. 
 141 ; Dane, Abr. c. 132, a. 6, c. 203, a. 12. 
 
 MANTJ OPERA. See Mannopus. 
 
 MANITAIi. That which is employed or 
 used by the hand, of which a present profit 
 may be made. Things in the manual occu- 
 pation of the owner cannot be distrained for 
 rent. See Tools. 
 
 MANTTCAPTIO (Lat.). In Old Eng- 
 lish Practice. A writ which lay for a man 
 taken on suspicion of felony, and the like, 
 who could not be admitted to bail by the 
 sheriff, or others having power to let to main- 
 prise. Fitzh. N. B. 249. 
 
 MANUCAPTORS. The same as main- 
 pernors. 
 
 MANUFACTURE. In Patent Law. 
 
 A term which is used to denote whatever- is 
 made directly by the hand of man, or indi- 
 Y-ectly^ through the instrumentality of any 
 machinery which is controlled by human 
 power. It is also applied to the process by 
 which those results are produced. A com- 
 modity may be regarded as being in itself a 
 
 manufacture, or as being produced by manu- 
 facttre. 
 
 . The term is used in its widest sense in the 
 patent law of Great Britain. The statute of 
 that kingdom prohibits the granting of letters 
 patent except for the making, using, or sell, 
 ing of some new manufacture. The term, 
 therefore, must embrace every thing which 
 can there be the subject-matter of a patent, 
 whether machinery or substances or fabrics 
 made by art and industry ; by construction it 
 has been extended to cover the process of 
 making a thing, or the art of carrying on 
 manufactures. See 2 B. & Aid. 349 ; 2 H. 
 Blackst. 492; 1 Webst. Pat. Cas. 512. It 
 has been defined there to be " anything made 
 by the hand of man." 8 Term, 99. 
 
 By our law, a patent can not only be granted 
 for a new manufacture, but also for a new 
 and useful art, machine, or composition of 
 matter. There are, c^sequently, with us 
 four classes of patentable inventions; and 
 we therefore give the word " manufacture," 
 when used as the subject-matter of a patent, 
 a meaning so narrow that it shall cover none 
 of the ground occupied by either of the other 
 classes. Now, all these classes together only 
 include what is embraced by the word "manu- 
 facture " in the English law, inasmuch as 
 nothing is the subject-matter of a patent with 
 us which is not so also in England. It follows 
 that the term " manufacture" has a very dif- 
 ferent signification in the patent laws of the 
 two countries. 
 
 With us, it has been defined to be " any 
 new combination of old materials constitu- 
 ting a new result or production in the form 
 of a vendible article, not being machinery." 
 The contriver of a substantially new com- 
 modity, which is not properly a machine or a 
 composition of matter, can obtain a patent 
 therefor as for a new manufacture. And 
 although it might be properly regarded as a 
 machine or a composition of matter, yet if 
 the claim to novelty rests on either of those 
 grounds, and if it really constitutes an essen- 
 tially new merchantable commodity, it may 
 be patented as a new manufacture. See 
 Patents. 
 
 The vendible substance is the thing pro- 
 duced ; and that which operates preserves no 
 permanent form. In the first class the ma- 
 chine, and in the second the substance pro- 
 duced, is the subject of the patent. 2 H. 
 Blackst. 492. See 8 Term, 99 ; 2 B. & Aid. 
 349 ;_ Dav. Pat. Cas. 278; Webs. Pat. 8; 
 Perpigny, Manuel des Inv. c. 2, s. 1 ; Re- 
 nouard, c. 5, s. 1 ; Westm. Rev. No. 44, 
 April, 1835, p. 247 ; 1 Bell, Com. 1. 1, part 
 2, c. 4, s. 1, p. 110, 5th ed. 
 
 MANUMISSION. The act of releasing 
 from the power of another. The act of giv- 
 ing liberty to a slave. 
 
 The modem acceptation of the word is the act 
 of giving liberty to slaves. But in the Roman 
 law it was a generic expression, equally applicable 
 to the enfranchisement from the manus, the 
 mandpium, the clominica potestat, and iiiepatria 
 
MANUMISSION 
 
 151 
 
 MANUSCRIPT 
 
 potestas. Manwmittere signifies to escape from a 
 power, — manus. Originally, the master could 
 only validly manumit his slave when he had the 
 domimum jure Quiritium over him : if he held 
 him merely in hxmit, the manumission was null, 
 according to the civil law ; but by the jus honur- 
 arium the slave was permitted to enjoy his lib- 
 erty de facto, but whatever he acquired belonged 
 to his master. By the law Junia Jforbana, passed 
 under Tiberius in the year of Kome 77a, the po- 
 sition of this class of quasi slaves was fixed, by 
 conceding to them the same rights which were 
 formerly enjoyed by the people of the colonies 
 established by Latium; and they were called 
 Latini Juniani, — Latini because they enjoyed the 
 jus lata,— jus latinUatis, — Jnniani because they 
 owed this status to the law Jwnia. They did not 
 possess the rights of Koman citizens : they could 
 neither vote nor perform any public functions ; 
 they were without the capacity of being insti- 
 tuted heirs or legatees, except indirectly by a 
 fiieicommissium ; they could make no valid will 
 or act as tutoi's ; but they had the commercium, 
 or right of buying and selling, and might witness 
 a will msiieper ms el libram. But at their death 
 their masters were entitled to all their property, 
 as if they had never ceased to be slaves. In the 
 language of the law, with their last breath they 
 lost both their life and their liberty : in ipso 
 ultimo spiritu simvl animam atque libertatem 
 amittebant. Inst. S. 7. 4 ; Gains, 3, § 56 et seq. 
 At first there were only three modes of manu- 
 mission, viz. : 1, vindicta ; 2, census ; and, 3, 
 testamentum. The vindicta consisted in a ficti- 
 tious suit, in which Vaeassertor libertatis, as plain- 
 tiff, alleged that the slave was free ; the master not 
 denying the claim, the prsetor rendered a decision 
 declaring the slave free. In this proceeding figured 
 a ioi,—^estuca vindicta, — a sort of lance (the 
 symbol of property), with which the assertor 
 libertatis touched the slave when he claimed him 
 as free : hence the expression vindicta manu- 
 missio. Census, the second mode, was when the 
 slave was inscribed at the instance of his master, 
 by the censor, in the census as a Roman citizen. 
 Testamento was when the testator declared in ex- 
 press terms that the slave should be free, — serous 
 meus Gratimis liber esto, — or by a fldeicommissum, 
 — Iieres meus rogo le vt Sanum vicini mei servum, 
 manumittas, jideicommitto heredls mei ut iste eum 
 servum manumittat. 
 
 Afterwards, manumission might take place in 
 various other ways ; in sacrosanctis ecclesiis, of 
 which we have a form : JSx beneficia S. <i> per 
 Joannem, episcopum et per Albertum, S. 4* Casa- 
 tum, foetus est liber Lemtbertus, teste hoc sancta 
 ecclesia. Per epistolam. Justinian required the 
 letter containing the manumission to be signed 
 by five witnesses. Inter arnicas, a declaration 
 made by the master before his friends that he 
 gave liberty to his slave : five witnesses were re- 
 quired, and an act was drawn up in which it was 
 stated that they had heard the declaration. Per 
 codielllum, by a codicil, which required to be 
 signed by five witnesses. There were many other 
 modes of manumission, which were enumerated 
 in a Constitution of Justinian. C. 76, 3-13 ; I 
 Ortolan, 35 et seq. ; 1 Etienne, 78 et seq. ; La- 
 grange, 101 et seq. 
 
 Direct manumission may be either by deed 
 or will, or any other act of notoriety done 
 with the intention to manumit. A variety of 
 these modes are described as used by ancient 
 nations. 
 
 Indirect manumission was either by ope- 
 ration of law, as the removal of a slave to 
 a non-slaveholding state animo morandi, or 
 by implication of law, as where the master 
 
 by his acts recognized the freedom of hia 
 slave. 
 
 In the absence of statutory regulations, it 
 has been held in this country, in accordance 
 with the principles of the common law, that 
 no formal mode or prescribed words were ne- 
 cessary to efiect manumission ; it could be by 
 parol ; and any words were sufficient which 
 evinced a renunciation of dominion on the 
 part of the master ; 8 Humpbr. 189 ; 3 Halst. 
 275. But mere declarations of intention were 
 insufficient unless subsequently carried into 
 effect; Coxe, 259; 8 Mart. La. 149; 14 
 Johns. 324; 19 id. 53. Manumission could 
 be made to take effect in future ; Coxe, 4 ; 2 
 Root, 364. In the mean time the slaves were 
 called statu liberi. See Cobb, Law of Sla- 
 very, passim ; Servus; Tbeedom; Bond- 
 age. 
 
 MANURE. Manure made upon a farm 
 in the ordinary manner, from the consump- 
 tion of its products, is a part of the realty ; 
 
 1 Washb. R. P. 18; 68 Me. 204; s. c. 28 
 Am. Rep. 36, n. ; 15 Wend. 169 ; 13 Gray, 
 53; 11 Conn. 525; 44 N. H. 120. It has 
 been also held to be personalty ; 4 Dutch. 
 581; 2 Ired. 326; especially if it be made 
 from hay purchased and brought upon the 
 land by the tenant ; 48 N. H. 147 ; and 
 where a teamster owning a house and stable 
 sold them with a small lot on which they 
 stood, it was held that manure in the stable 
 was personalty; 49 N. H. 62. Manure in 
 heaps has been held to be personalty ; 1 1 Conn. 
 525 ; and where the owner of land gathered 
 manure into heaps and sold it, and then the 
 land, the manure did not pass with the land ; 
 43 Vt. 93 ; 110 Mass. 94. In 1 Cr. & M. 
 809, a custom for a tenant to receive com- 
 pensation for manure left by him on the farm, 
 was recognized. Manure dropped in the 
 street belongs originally to the owners of the 
 animals that dropped it, but, if abandoned by 
 them, the first taker has a right to it; 37 
 Conn. 500 ; s. c. 9 Am. Rep. 350. 
 
 MANUS (Lat. hand), 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. LeQ. £1. Dr. Rom. § 94. 
 
 MANUSCRIPT. An unpublished writ- 
 ing, or one that has been published without 
 the consent of the person entitled to control 
 it. 
 
 In every writing the author has a property 
 at common law, which descends to his repre- 
 sentative, but is not liable to seizure by credi- 
 tors so that they can publish it ; 1 Bell, Diet. 
 68. And an unauthorized publication will 
 be restrained in equity ; 4 Burr. 2320, 2408 ; 
 
 2 Bro. P. C. 138 ; 2 Atk. 842; 2 Edw. Ch. 
 329; 2 Mer. 434; Ambl. 694, 739; 1 Ball 
 & B. 207; 2 Stor. 100; 5 McLean, 32. 
 Letters are embraced within this principle ; 
 for, although the receiver has a qualified pro- 
 
MARAUDER 
 
 152 
 
 MARINE INSURANCE 
 
 perty in them, the right to object to their 
 publication remains with the writer. It is 
 held, however, that the receiver may publish 
 them for the purposes of justice publicly ad- 
 ministered, or to vindicate his character from 
 an accusation publicly made; 2 V. & B. 19; 
 2 Swanst. 418; 2 Mer. 435; 2 Stor. 100; 2 
 Atk. 342; 2 Bush, 480; 1 Mart. La. 297; 
 4 Du. N. Y. 879. The receiver may destroy 
 or give away the letters, as soon as received ; 
 2 Bush, 480. The latter proposition has 
 been doubted; see Drone, Copyright, 137. 
 In the United States, the Copyright Act 
 recognizes the ri^t of property in "any 
 manuscript whatever," which includes private 
 letters ; 5 McLean, 32 ; and gives a remedy 
 for the unauthorized publication. These 
 rights will be considered, as abandoned if the 
 author publishes his manuscripts without se- 
 curing the copyright under the acts of con- 
 gress. Copykight; Curtis, Copinger, Drone, 
 Copyright. 
 
 MARAtTDER. 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. 
 Merlin, R6pert. See Halleck, Int. Laws ; 
 Lieber, Guerrilla Parties. 
 
 MARC-BANCO. The name of a coin. 
 The marc-banco of Hamburg, as money of 
 account, at the oustom-house, is deemed and 
 taken to be of the value of thirty-five cents. 
 Act of March 3, 1843. 
 
 MARCH. In Scotch La'w. A bound- 
 ary-line. Bell, Diet.-, Erskine, Inst. 2. 6. 4. 
 
 MARCHERS. In Old English Law. 
 Nobles who lived on the Marches, and had 
 their own laws, and power over life and death, 
 as if they were petty princes. Camden ; 
 Jacob, Law Diet. Abol^^hed by stat. 27 
 Hen. VIII. c. 26, 1 Edw. VL c. 10, & 1, and 
 2 P. & M. c. 15. They were also called 
 Lords Marchers. 
 
 MARCHES. Limits ; confines ; borders. 
 Especially, used of the limits between Eng- 
 land and Wales and between England and 
 Scotland. 
 
 MARESCALLUS (fr. Germ, march, 
 horse, and scAa/cA, master. DuCange). A 
 groom of the stables, who also took care of 
 the diseases of the horse. Du Cange. 
 
 An officer of the imperial stable : magister 
 equorum. Du Cange. 
 
 A military officer, whose duty it was to. 
 keep watch on the enemy, to choose place of 
 encampment, to arrange or marshal the army 
 in order of battle, and, as master of the horse, 
 to commence the battle. This office was 
 second to that of comes stabuli or constable. 
 DuCange. 
 
 An officer of the court of exchequer. 61 
 Hen. III. 5. 
 
 An officer of a manor, who oversaw the 
 hospitalities (mansionarius). Du Canire ; 
 Eleta, lib. 2, 74. ° 
 
 Marescallus aulas. An officer of the royal 
 
 household, who had charge of the person of 
 the monarch and peace of the palace. Du 
 Cange. 
 
 MARETUM (Lat.). Marshy ground 
 overflowed by the sea or great rivers. Co. 
 Litt. 5. 
 
 MARGIN. A sum of money, or its 
 equivalent, placed in the hands of a stock 
 broker, by the principal, or person on whose 
 account the purchase is to be made, as a 
 security to the former against losses to which 
 he may be exposed by a subsequent depres- 
 sion in the market value of the stock. 49 
 Barb. 462. 
 
 The effect of the contract Is that the broker, 
 upon the performance of certain conditions by 
 the customer, will buy and hold a eertain num- 
 ber of shares, and in case any advance accrues 
 and is secured by a sale, made under the direc- 
 tion or authority of the customer, he shall enjoy 
 the benefit of it, and in case a, loss eDsues, the 
 broker having performed the contract on his 
 part, the customer shall bear it ; 49 Barb. 464 ; 
 66 N. T. 518. See Lewis, Stoclss ; Biddle, Stock 
 Brokers ; Dos Passes, Stock Brokers, etc., and 
 the Stock Exchange. 
 
 MARINARIUS (L. Lat.). An ancient 
 word which signified a mariner or seaman. 
 In England, marinarius capitaneus was the 
 admiral or warden of the ports. 
 
 MARINE. Belonging to the sea ; relat- 
 ing to the sea ; naval. A soldier employed, 
 or liable to be employed, on vessels of war, 
 under the command of an officer of marines, 
 who acts under the direction of the comman- 
 der of the ship. See Makine Corps. It is 
 also used as a general term to denote the 
 whole naval power of a state or country. 
 
 MARINE CONTRACT. One which re- 
 lates to business done or transacted upon the 
 sea and in sea-ports, and over which the 
 courts of admiralty have jurisdiction concur- 
 rent with the courts of common law. See 
 Maritime Contract ; Parsons, Marit. 
 Law ; 2 Gall. 398. 
 
 MARINE CORPS. A body of officers 
 and soldiers under an organization separate 
 and distinct from that of the army, and in- 
 tended for service, in detached portions, on 
 board of ships of war. 
 
 MARINE COURT IN THE CITY OF 
 NEW YORK. See New York. 
 
 MARINE INSURANCE. A contract 
 of indemnity by which one party, for a stipu- 
 lated premium, undertakes to indemnify the 
 other, to the extent of the amount insured, 
 against all perils of the sea, or certain enu- 
 merated perils, to which his ship, cargo, and 
 freight, or some of them, may be exposed 
 during a certain voyage or fixed period of 
 time. 
 
 The party who takes the risk is called the 
 insurer or underwriter ; and the party to be 
 
 Protected is called the insured or assured, 
 'he sum paid as a consideration for the in- 
 surance is called the premium ; and the in- 
 strument containing the contract is called the 
 
MARINE INTEREST 
 
 153 
 
 MARITIME CAUSE 
 
 policy. See Phillips, Arnould, Dner, Mar- 
 shall, Insurance ; Parsons, Marit. Law ; Eme- 
 rigon on Insurance, by Meredith ; and title 
 Insurance in the Index of Kent's Commenta- 
 ries and BouVier's Institutes, and in this work. 
 
 MARINE INTEREST. A compensa- 
 tion paid for the use of money loaned on bot- 
 tomry or respondentia. Provided the money 
 be loaned and put at risk, there is no fixed 
 limit to the rate which may be lawfully 
 charged by the lender; but courts of admi- 
 ralty, in enforcing the contract, will mitigate 
 the rate when it is extortionate and uncon- 
 scionable. See Bottomry ; Maritime 
 Loan ; Respondentia. 
 
 MARINE LEAGUE. A measure equal 
 to the twentieth part of a degree of latitude. 
 Boucher, Inst. n. 1845. It is generally con- 
 ceded that a nation has exclusive territorial 
 jurisdiction upon the high seas for a marine 
 league from its own shores. 1 Kent, 29. See 
 The Franoonia, 2 Ex. Div. 63. 
 
 MARINER. One whose occupation it is 
 to navigate vessels upon the sea. See Seamen; 
 Shipping 'Articles. Surgeons, engineers, 
 clerks, stewards, cooks, porters, and chamber- 
 maids, on passenger-steamers, when necessary 
 for the service of the ship or crew, are also 
 deemed mariners, and permitted as such to sue 
 in the admiralty for their wages. 1 Conkl. 
 Adm. 107. See Seamen; Lien. 
 
 MARITAGIUM (Lat.). A portion given 
 with a daughter in marriage. 
 
 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. Beames, Glanv. 138, n. ; 
 Bracton, 21 a ; Spelm. Grloss. ; 2 Bla. Com. 69 ; 
 Co. Litt. 21 6, 76 a. 
 
 MARITAL. That which belongs to mar- 
 riage : as, marital rights, mai-ital duties. 
 
 Contracts made by a feme sole with a view 
 to deprive her intended husband of his mari- 
 tal rights with respect to her property are a 
 fraud upon him, and may be set aside in 
 equity. By the marriage the husband as- 
 sumes the duty of paying her debts contracted 
 previous to the coverture, and of supporting 
 her during its existence ; and he cannot, there- 
 fore, be fraudulently deprived, by the intended 
 wife, of those rights which enable him to per- 
 form the duties which attach to him ; 1 Vern. 
 408; 2id. 17; 2 P. Wms. 357, 674; 2 Bro. 
 C. C. 345 ; 2 Cox, Ch. 28 ; 2 Beav. 628 ; 
 White & T. Lead. das. in Eq. *277. 
 
 MARITAL PORTION. In Louisiana. 
 The name given to that part of a deceased 
 husband's estate to which the widow is en- 
 titled. La. Civ. Code, 334, art. 55 ; 3 Mart. 
 La. N. s. 1. 
 
 MARITIME CAUSE. A cause arising 
 from a maritime contract, whether made at 
 sea or, on land. 
 
 The term includes such causes as relate to 
 the business, commerce, or navigation of the 
 sea: as charter-parties, bills of lading, and 
 other contracts of affreighment ; bottomry 
 
 and respondentia contracts ; and contracts for 
 maritime services in repairing, supplying, and 
 navigating ships and vessels ; contracts and 
 quasi contracts respecting averages, contribu- 
 tions, and jettisons, when the party prosecu- 
 ting has a maritime lien ; and also those aris- 
 ing from torts and injuries committed on the 
 high seas, or on other navigable waters within 
 the admiralty jurisdiction. 
 
 Suits for the recovery of damages for the 
 collision of ships and vessels constitute an im- 
 portant class of the causes founded upon ma- 
 rine torts ; and in these cases the admiralty 
 courts adopt a rule of decision entirely dif- 
 ferent from that acted upon in common-law 
 courts. In the latter a plaintiff whose negli- 
 gence has contributed to the injury of which 
 he complains cannot recover damages, al- 
 though the defendant has been equally, or 
 even more, culpable ; but in cases of collision 
 the admiralty courts, when it is established 
 that both vessels were in fault, or that the col- 
 lision must be attributed to the fault of one 
 or both of the vessels, and it cannot be deter- 
 mined which, if either alone, was in fault, 
 aggregate the damage to both, and then divide 
 it between them, decreeing that the owners 
 of each shall bear half the whole loss ; 2 Dods. 
 85; 3 W. Rob. 38; 17 How. 172; 1 Conkl. 
 Adm. 374-380 ; Desty, Adm. § 388. 
 
 • Cases of salvage are also within the juris- 
 diction of the admiralty courts ; and they 
 likewise exercise jurisdiction in favor of a 
 part-owner who dissents from the determina- 
 tion of a majority of the owners to employ 
 the ship in a particular manner, and seek to 
 obtain security for the safe return of the ves- 
 sel. They also exercise a jurisdiction (founded 
 upon a rule of national comity) for the pur- 
 pose of enforcing the decrees of foreign courts 
 of admiralty, whep the ends of justice require 
 it; 1 Conkl. Adm. 26; 2 Gall. 191, 197. 
 
 The admiralty courts of the United States 
 also have jurisdiction of controversies between 
 part-owners and others in relation to the title 
 or possession of ships and vessels ; Ware, 
 232 ; 2 Curt. C. C. 426 ; 18 How. 267; also 
 of all seizures under laws of import, naviga- 
 tion, or trade of the United States, where 
 such seizures are made on the high seas or on 
 waters which are navigable from the sea by 
 vessels of ten or more tons burden. See 
 Judiciary Act, sec. 9, 1 Stat, at L. 77. 
 
 In all cases of contract the jurisdiction of 
 the admiralty courts depends upon the nature 
 or subject-matter of the contract ; but in 
 cases of maritime tort and salvage their juris- 
 diction depends upon the place in which the 
 cause of action accrued; 1 Conkl. Adm. 19, 
 32. In general, the courts of common law 
 have a concurrent jurisdiction with courts of 
 admiralty in those cases which, in legal par- 
 lance, are said to be prosecuted or promoted 
 on the instance side of the court. But the 
 admiralty also has jurisdiction of prize cases, 
 or cases arising upon captures jure belli ; and 
 that jurisdiction is exclusive, except where 
 affected by special statutes ; 6 Wall. 759. 
 
MARITIME CONTRACT 
 
 154 
 
 MARITIME LOAN 
 
 In the United States, the jurisdiction of 
 the admiralty courts is not hmited to the 
 cases of contracts relating to the navigation of 
 the high seas or other waters within the ebb 
 and flow 4f the tide, and to causes of action 
 for torts committed on tide-waters, as was 
 generally supposed prior to 1845 ; 10 Wheat. 
 428 ; 7 Pet. 324, 343 ; but it is now held to 
 extend to the great lakes and to the other 
 navigable waters of the United States, in re- 
 spect to commerce with foreign nations and 
 among the states; 12 How. 443, 468; 5 
 McLean, 269, 359 ; 20 How. 296. See Ad- 
 miralty. 
 
 The admiralty jurisdiction has been held 
 not to extend to preliminary contracts, merely 
 leading to the execution of maritime con- 
 tracts ; 3 Mas. 6 ; 4 id. 380 ; 3 Sumn. 144 ; 
 nor to matters of account between part-own- 
 ers ; 11 Pet. 175; nor to trusts, although they 
 may relate to maritime affairs ; Daveis, 71 ; 
 nor to enforce a specific performance of a con- 
 tract relating to maritime affairs ; nor to a 
 contract not maritime in. its character, al- 
 though the consideration for it may be mari- 
 time services ; 4 Mas. 38.0 ; nor to questions 
 of possession and property between owner 
 and mortgagee ; 17 How. 399; nor to con- 
 tracts of affreightment from one port of the 
 great lakes to another port in the same state ; 
 21 How. 244 ; nor to contracts for supplies 
 furnished a vessel engaged in such trade only ; 
 and, of course, such causes cannot be con- 
 sidered maritime causes ; 21 How. 248. 
 
 MARITIME CONTRACT. One which 
 relates to the business of navigation upon the 
 sea, or to business appertaining to commerce 
 or navigation to be transacted or done upon 
 the sea, or in sea-ports, and over which courts 
 of admiralty have jurisdiction concurrent with 
 the courts of common law. 
 
 Such contracts, according to civilians and 
 jurists, include, among others, charter-parties, 
 bills of lading, and other contracts of affreight- 
 ment, marine hypothecations, contracts for 
 maritime service in building, repairing, sup- 
 plying, and navigating ships or vessels, con- 
 tracts and quasi contracts respecting averages, 
 contributions, and jettisons. See 2 Gall. 
 898, etc., in which jfudge Story gave a very 
 elaborate and learned opinion on the sub- 
 ject; 2 Pars. Marit. Law, 182. It is, how- 
 ever, very doubtful whether his views in 
 respect to the admiralty jurisdiction in cases 
 of marine insurance would now be con- 
 curred in by the supreme court of the 
 United States. See 3 Mas. 27 ; 2 Story, 176 ; 
 2 Curt. C. C. 322 ; 7 How. 729. 
 
 The contract for building a vessel is not a 
 maritime contract ; 20 How. 393 ; 7 Am. 
 Law Reg. 6 ; 22 How. 129 ; contra, 21 Law 
 Rep. 281. 
 
 The term ^'■maritime contract, "in its or- 
 dinary and proper signification, does not 
 strictly apply to contracts relating to the navi- 
 gation of our great inland lakes arid our great 
 navigable rivers ; and yet contracts in respect 
 to their navigation from state to state are 
 
 now within the admiralty jurisdiction of the 
 United States to the same extent as though 
 they were arms of the sea and subject to 
 tidal influences; 12 How. 443, 468. Such 
 contracts are, therefore, frequently denomi- 
 nated maritime contracts, and may, perhaps, 
 be properly denominated quasi maritime, as 
 being within the jurisdiction of the admiralty 
 or maritime courts. 
 
 MARITIME INTEREST. See Ma- 
 rine Interest. 
 
 MARITIME LAW. That system of 
 law which particularly relates to the affairs 
 and business of the sea, to ships, their crews 
 and navigation, and to the marine conveyance 
 of persons and property. See Admiralty, 
 and the various titles in regard to which in- 
 formation is sought. 
 
 The following is a part of the syllabus of 
 the opinion of the court (per Bradley, J.), 
 in 21 Wall. 558. 
 
 Whilst the general maritime law is the basis 
 of the maritime law of the United States, as 
 well as of other countries, it is only so far 
 operative in this, or any country, as it is 
 adopted by the laws and usages thereof. It 
 has no inherent force of its own. 
 
 In particular matters, especially such as 
 approach a merely municipal character, the 
 received maritime law may differ in different 
 countries without affecting the integrity of 
 the system as a harmonious whole. 
 
 The general system of maritime law which 
 was familiar to the lawyers and statesmen of 
 this country when the constitution vas 
 adopted, was intended, and referred to, when 
 it was declared in that instrument that the 
 judicial power of the United States shall ex- 
 tend " to all cases of admiralty and maritime 
 jurisdiction." Thus adopted, it became the 
 maritime law of the United States, operating 
 uniformly in the whole country. 
 
 The question as to the true limits of mari- 
 time law and admiralty jurisdiction is exclu- 
 sively a judicial question, and no state law Or 
 act of congress can make it broader or nar- 
 rower than the judicial power may determine 
 those limits to be. But what the law is with- 
 in those limits, assuming the general maritime 
 law to be the basis of the system, depends on 
 what has been received as law in the maritime 
 usages of this country, and on such legislation 
 as may have been competent to effect it. 
 
 The decisions of this court illustrative of 
 these sources, and giving construction to the 
 laws and constitution, are especially to be con- 
 sidered ; and when these fail us, we must re- 
 sort to the principles by which they have been 
 governed. 
 
 MARITIME LOAN. A contract or 
 agreement by which one, who is the lender, 
 lends to another, who is the borrower, a cer- 
 tain 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 bor- 
 
MARITIME PROFIT 
 
 155 
 
 MARKET OVERT 
 
 rowed ; 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 re- 
 turn the sura borrowed, together with a cer- 
 tain sum agreed upon as the price of the haz- 
 ard incurred. Emerigon, Mar. Loans, c. 1, 
 s. 2. See Bottomry ; Gkoss Advbntuke ; 
 Makinb Interest; Respondentia. 
 
 MARITIME PROFIT. A term used 
 by French writers to signify any profit derived 
 from a maritime loan. 
 
 MARK. A sign, traced on paper or parch- 
 ment, which stands in the place of a signature ; 
 usually made by persons who cannot write. 
 The use of the mark in ancient times was not 
 confined to illiterate persons ; among the 
 Saxons the mark of the cross, as an attestation 
 of the good faith of the person signing, was 
 required to be attached to the signature of 
 those who could write, as well as to stand in 
 the place of the signature of those who could 
 not write. It was the symbol of an oath. 
 It is most often the sign of the cross, made in 
 a little space left between the Christian name 
 and surname ; 2 Bla. Com. 305 ; 2 Curt. 
 324 ; Mood. & M. 516 ; 12 Pet. 150 ; 2 Ves. 
 Sen. 455 ; 1 V. & B. 362 ; 1 Ves. 11. The 
 word his is usually written above the mark, 
 and the word mark below it. A mark is now 
 held to be a good signature though the party 
 was able to write ; 8 Ad. & E. 94 ; 3 Curt. 
 752 ; 5 Johns. 144 ; 2 Bradf. Sun-. 385 ; 24 
 Penn. 502 ; 19 Mo. 609 ; 18 Ga. 396 ; 16 B. 
 Monr. 102; 1 Jarm. Wills, 69, 112, note; 
 1 Will. Exec. 63. 
 
 The sign, writing, or ticket put upon manu- 
 factured goods to distinguish them from others; 
 Poph. 144 ; 3 B. & C. 641 ; 2 Atk. 485 ; 2 
 V. & B. 218 ; 3 M. & C. Ch. 1 ; also to iridi« 
 cate the price ; and if one use the mark of 
 another to do him damage, an action on the 
 case will lie, or an injunction maybe had from 
 chancery ; 2 Cro. 47. See Trade-Makks. 
 
 By the act of July 8, 1870, patentees are 
 required to mark patented articles with the 
 word patented and the day and year when the 
 patent was granted, and in any suit for infringe- 
 ment by the party failing so to mark, no dam- 
 ages can be recovered by the plaintiff, except 
 on proof that the defendant was duly notified 
 of the infringement, and continued, after such 
 notice, to make, use, or vend the article pat- 
 ented. 
 
 MARE (spelled, also, Marc). A weight 
 used in several parts of Europe, and for seve- 
 ral commodities, especially gold and silver. 
 When gold and silver are sold by the mark, 
 it is divided into twenty-four carats. A 
 money of accounts in England, and in some 
 other countries a coin. The English mark is 
 two-thirds of a pound sterling, or 13s. 4c?.; and 
 the Scotch mark is of equal value in Scotch 
 money of account. Encyc. Amer. 
 _ MARKET (Lat. merx, merchandise ; an- 
 ciently, mercai). A public place and ap- 
 
 pointed time for buying and selling. A pub- 
 lic place, appointed by public authority, where 
 all sorts of things necessary for the subsist- 
 ence or for the convenience of life are sold. 
 All fairs are markets, but not vice versa; 
 Bracton, 1. 2, c. 24 ; Co. Litt. 22 ; Co. 2d 
 Inst. 401 ; Co. 4th Inst. 272. Markets are 
 generally regulated by local laws. 
 
 The franchise by which a town holds a mar- 
 ket, which can only be by royal grant or im- 
 memorial usage. 
 
 By the term market is al30 understood the 
 demand there is for any particular article : as, 
 the cotton market in Europe is dull. See 15 
 Viner, Abr. 41; Comyns, Dig. Market; 
 Market Stalls. 
 
 MARKET OVERT. 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. "An open, public, 
 and legally constituted market." Jervis, C. 
 J., 9 J. Scott, 601. As to what is a legally 
 constituted market overt, see 5 C. B. N. s. 
 299. In 5 B. & S. 313, the doctrine rf market 
 overt was much discussed by Cockburn, C. J., 
 and the opinion expressed that a sale could 
 not be considered as made in market overt, 
 "unless the goods were exposed in the mar- 
 ket for sale, and the whole transaction begun, 
 continued, and completed in the open market ; 
 so as to give the fullest opportunity to the man 
 whose goods have been taken to make pursuit 
 of them, and prevent their being sold." 
 
 The market-place is the only market overt, 
 out of London ; but in London every shop is 
 a market overt ; 5 Co. 83 ; F. Moore, 300. 
 In London, every day except Sunday is 
 market-day. In the country, particular days 
 are fixed for market-days by charter or pre- 
 scription ; 2 Bla. Com. 449. 
 
 All contracts for any^ thing vendible, made 
 in market overt, shall be binding ; and sales 
 pass the property, though stolen, if it be an 
 open and proper place for the kind of goods, 
 there be an actual sale for valuable considera- 
 tion, no notice of wrongful possession, no 
 collusion, parties able to contract, a contract 
 originally and wholly in the market overt, 
 toll be paid, if requisite, by statute, and the 
 contract be made between sun and sun; 5 
 Co. 83 b. But sale in market overt does not 
 bind the king, though it does infants, etc. ; 
 C7). 2d Inst. 713 ; 2 Bla. Com. 449 ; Comyns, 
 Dig. Market (E) ; Bacon, Abr. Fairs and 
 Markets (E) ; 5 B. & Aid. 624. A London 
 shop is not a market overt except for such 
 goods as are usually sold there ; 5 Co. 83. A 
 sale by sample is not a sale in market overt ; 
 
 5 B. & 8. 313. A'sale to a shop-keeper in 
 London is a sale in market overt; 11 Ad. & 
 E. 326 ; but see 5 B. & S. 313. Under 24 
 
 6 25 Vict. e. 96, s. 100, upon the conviction 
 of a thief, at the prosecution of a person from 
 whom he has stolen goods, summary restitu- 
 tion of the stolen goods is provided for. Spe- 
 cial provisions have been made in England 
 touching the sale of horses in market overt. 
 
MARKET STALLS 
 
 156 
 
 MARRIAGE 
 
 There is no law recognizing the effect^ of 
 a sale in market overt in Fennsjflvania ; 
 3 Yeates, 347; 5 S. & R. 130; in New 
 York; Ijohns. 480; in New Hampshire; 
 52 N. H. 158; in Maine; 59 Me. Ill; in 
 Massachusetts ; 8 Mass. 521 ; in Ohio ; 5 
 Ohio, 203 ;' nor in Vermont; 1 Tyl. 341 ; 
 nor, indeed, in any of the United States ; 10 
 Pet. 161 ; 2 Kent, 324 ; 2 Tud. Lead. Cas. 
 734, where the subject is fully treated. 
 
 MARKET STALLS. The right ac- 
 quired by a purchaser of a market stall is in 
 the nature of an easement in, not a title to, a 
 freehold in the land, and such right or ease- 
 ment is limited in duration to the existence of 
 the market, and is to be understood as ac- 
 quired subject to such changes and modifica- 
 tions in the market during its existence as the 
 public needs may require. The purchase 
 confers an exclusive right to occupy the par- 
 ticular stalls, with their appendages, for the 
 purposes of the market, and none other, and 
 subject to the regulation of the market. So 
 held in a late case in 2 Md. Law Rec. 81, a 
 case of a public market in Baltimore. In 33 
 Penn. 202, the court refused to enjoin the 
 city of Philadelphia from demolishing the 
 old market house with a view to building a 
 new one on other property. See, also, 18 
 Ohio, 563; 19 Am. L. Reg. N. s. 9. 
 
 MARKETABLE TITLE. See Title. 
 
 MARLBRIDGE, STATUTE OF. An 
 important English statute, 52 Hen.' III. 
 (1267), relating to the tenures of real pro- 
 perty, and to procedure. It derived its name 
 from the town in Wiltshire in which parlia- 
 ment sat when it was enacted, now known as 
 Marlborough. Compare 2 Reeve, Hist. Eng. 
 Law, 62 ; Crabb, Com. Law, 166 ; Barr. 
 Stat. 66. 
 
 MARQUE AND REPRISAL. See 
 Letters of Marque. 
 
 MARRIAGE. A contract, made in due 
 form of law, by which a man and woman 
 reciprocally engage to live with each other 
 during their joint lives, and to discharge to- 
 wards each other the duties imposed by law on 
 the relation of husband and wife. 
 
 Marriage, as distinguished from the agree- 
 ment to marry and from the act of becoming 
 married, is the civil status of one man and 
 one woman united in law for life, for the dis- 
 charge to each other and the community, of 
 the duties legally incumbent on those whose 
 association is founded on the distinction of 
 sex. 1 Bish. Mar. & D. § 3. 
 
 The better opinion appears to be that mar- 
 riage is something more than a mere civil con- 
 tract. It has been variously said by different 
 writers, to be a status, or a relation, or an in- 
 stitution. This view is supported by the fol- 
 lowing: Story, Confl. Laws, § 108 n. ; 4 
 R. L 87; 9 Ind. 37; 3 P. D. ] ; s. c. 19 
 Am. L. Reg. sr. s. 80 ; 4 P. D. 1 ; 5 id. 94 ; 
 5 Law Mag. & Rev. 4 Ser. 26. In New 
 York, however, it has been held to be merely 
 a civil contract ; 19 Am. L. Reg. n. b. 219. 
 
 All persons are able to contract marriage 
 unless they are under the legal age, or unless 
 there be other disability. The age of con- 
 sent at common law is fourteen in males, and 
 twelve in females; Reeve, Dom. Rel. 236- 
 2 Kent, 78 ; IN. Chipm. 254 ; 10 Humphrl 
 61 ; 1 Gray, 119. See 20 Ohio, 1. This is 
 still the rule in the older states ; but in Ohio 
 Indiana, and other western states, the age of 
 consent is raised to eighteen for males, and 
 fourteen for females ; Schoul. Husb. & Vf, 
 § 24. When a person under this age marries, 
 such person can, when he or she arrives at the 
 age above specified, avoid the marriage, or 
 such person or both may; if the other is of 
 legal age, confirm it. It has been held that 
 the one who is of legal age may also disaffirm 
 the marriage ; Co. Litt. 79 ; East, P. C. 
 468; but see 15 Mich. 193. The disaffirm- 
 ance may be either with or without a judicial 
 sentence; 1 Bish. Marr. & D. § 150. If 
 either of the parties is under seven, the mar- 
 riage is void ; 1 Sharsw. Bla. Com. 436, note 
 9 ; 5 Ired. Eq. 487. 
 
 If either party is non compos mentis, or t». 
 sane, the marriage is void ; 21 N. H. 52; 22 
 id. 553 ; 4 Johns. Ch. 343. 
 
 If either party has a husband or wife living, 
 the marriage is void ; 4 Johns. 53 ; 22 Ala. 
 N. S..86 ; 1 Salk. 120 ; 1 Bla. Com. 438. See 
 Nullity of Marriage. 
 
 Consanguinity and affinity within the rules 
 prescribed by law in this country render a 
 marriage void. In England they render the 
 marriage liable to be annulled by the ecclesi- 
 astical courts ; 10 Mete. 451 ; 2 Bla. Com. 
 434. See Conflict 'or Laws. 
 
 The parties must each be willing to marry 
 the other. 
 
 If either party acts under compulsion, or 
 is under duress, the marriage is voidable ; 2 
 Hagg. Cons. 104, 246. 
 
 Where one of the parties is mistaken in the 
 person of the other, this requisite is wanting. 
 But a mistake in the qualities or character 
 of the other party will not avoid the mar- 
 riage ; Poynt. Marr. & D. c. 9. If a man 
 marries the woman he intends to marrj-, the 
 marriage is valid, though she passes under an 
 assumed name ; 1 Bish. JMar. & D. § 204 ; 3 
 Curt. Ec. 185 ; see Burke's Trials, 63. 
 
 If the apparent willingness is produced by 
 fraud, the marriage will oe valid till set aside 
 by a court of chancery or by a degree of di- 
 vorce ; 5 Paige, Ch. 43. Fraud is sometimes 
 said to render a marriage void ; but this is 
 incorrect, as it is competent for the party in- 
 jured to waive the tort and affirm the mar- 
 riage. _ Impotency in one of the parties is 
 sometimes laid down as rendering the mar- 
 riage void, as being a species of fraud on the 
 other party ; but it is only a ground for an- 
 nulling the contract by a court, or for a 
 divorce. 
 
 Dr. Wharton (Confl. Laws) gives three 
 distinct theories as to the law which is to de- 
 termine the question of matrimonial capacity. 
 
 It is determined by the law of the place 
 
MAEEIAGE 
 
 157 
 
 MARRIAGE ARTICLES 
 
 of solemnization of the maiTiage. This view 
 is supported by Judge Story (Confl. Laws, 
 §§ 110, 112), and Mr. Bishop (Mar. & D. 
 § 390) ; 19 Am. L. Reg. n. s. 219 ; but it is 
 objected to this theory that it is subject to 
 exceptions which destroy its applicability to 
 the majority of litigated cases. Thus mar- 
 riages which by our law are incestuous, are 
 not validated by being performed in another 
 land, where they would be lawful, and so the 
 converse is true, that the marriage, in Eng- 
 land, of an American with his deceased wife's 
 sister, would be recognized as valid in such 
 of our states as hold such a marriage to be 
 legal, nor is it believed that an American 
 court will ever hold a marriage of American 
 citizens, soleinnized abroad, to be illegal, 
 simply because the consent of parents was 
 withheld or because one of the parties, though 
 of age at home, was a minor at the place of 
 celebration. Further, to make the lex loci 
 celebrationis supreme enables parties to ac- 
 quire for themselves any kind of marital 
 capacity they want, by having the marriage 
 solemnized in a state where this kind of mari- 
 tal capacity is sanctioned by law. 
 
 A second theory of matrimonial capacity 
 is that it is determined by the lex dnmicilii ; 
 Wheat. Int. Law (Lawr.), 172 ; 4 Phill. Int. 
 Law, 284; 2 CI. 8e F. 488; 9 H. L. C. 193. 
 There are two serious objections to this theory. 
 First, it would make the validity of the mar- 
 riages in the United States of natives of other 
 countries, depend upon the question whether 
 such persons had acquired a domicil in the 
 United States ; for if they had not, they 
 would be governed by the laws of their 
 foreign domicil. Few aliens, who marry in 
 this country, could be sure they were legally 
 married. Second, it would be necessary upon 
 this theory to sustain the polygamous marriages 
 of Chinese ; see, as sustaining this theory, L. 
 R. 2 P. & M. 440 ; 4 P. D. 13 ; 3 P. U. 1 ; 
 29 L. J. P. & M. 97 ; Westl. 56 ; but see 125 
 Mass. 374. According to Savigny, all ques- 
 tions of capacity are to be determined by the 
 husband's domicil, which, as the true seat of 
 the marriage, absorbs that of the wife. It 
 has been conceded that the law of domicil 
 does not extend to the direction of the cere- 
 monial part of the marriage rite, and that the 
 lex domicilii is the law of the country in 
 which the parties are domiciled at the time of 
 the marriage, and in which their matrimonial 
 residence \» contemplated ; Lord Campbell 
 in 9 H. L. C. 193. 
 
 The third theory is that matrimonial capa- 
 city is a distinctive national policy, as to 
 which judges are obliged to enforce the rules 
 of the state of which they are the officers. 
 So far as concerns the United States, our 
 national policy in this respect is to sustain the 
 matrimonial capacity in all classes of persons 
 arrived at puberty, and free from the impedi- 
 ments of prior ties. This view is approved 
 by Dr. Wharton, Confl. Laws, §§ 160-165. 
 See 19 Am. L. Reg. n. s. 76, 219. 
 
 At common law, no particular form of 
 
 words or ceremony was necessary. Mutual 
 assent to the relation of husband and wife 
 was sufl5cient. Any words importing a pre- 
 sent assent to being married to each other 
 were sufficient evidence of the contract. If 
 the words imported an assent to a future 
 marriage, if followed by consummation, this 
 established a valid marriage by the canon 
 law, but not by the common law; 10 CI. & 
 F. 534 ; 15 N. Y. 345 ; 2 Rop. Husb. & W. 
 445-475; 1 How. 219; 2 N. H. 268. But 
 a betrothal followed by copulation does not 
 make the common law marriage per verba de 
 fulwo cum copula when the parties looked 
 forward to a formal ceremony, and did not 
 agree to become husband and wife without it ; 
 12 R. I. 485. 
 
 At common law the consent might be given 
 in the presence of a magistrate or of atiy 
 other person as a witness, or it might be found 
 by a court or jury from the subsequent ac- 
 knowledgment of the parties, or from the 
 proof of cohabitation, or of general reputa- 
 tion resulting from the conduct of the parties. 
 In the original United States the common-law 
 rule prevails, except where it has been 
 changed by legislation ; 6 Binn. 405 ; 4 
 Johns. 52. See 10 N. H. 388 ; 4 Burr. 2058 ; 
 1 How. 219, 234; 1 Gray, 119; 2 Me. 102. 
 
 In civil cases a marriage can generally be 
 proved by showing that the parties have held 
 themselves out as husband and wife, and by 
 general reputation founded on their conduct. 
 This is sufficient, too, for purposes of admin- 
 istration ; 2 Redf. 456. There is an exception, 
 however, in the case of such^ivil suits as are 
 founded on the marriage relation, such as 
 actions for the seduction of the wife, where 
 general reputation and cohabitation will not 
 be sufficient ; 4 N. Y. 230 ; 3 Bradf. Surr. 369, 
 373; 6 Conn. 446; 29 Me. 323 ; 14N.H.450. 
 
 In most of the states, the degrees of rela- 
 tionship within which marriages may not be 
 contracted are prescribed by statute. This 
 limit in cases of consanguinity is generally, 
 though not always, that of first cousins. In 
 some of the states, a violation of the ruleren- 
 ders, by statute, the marriage absolutely void. 
 In others, no provision of this kind is made. 
 Various statutes have been passed to guard 
 against abuse of the marriage ceremony. Such 
 of them as require license, or the publica- 
 tion of bans, or the consent of parents or 
 guardians, are regarded as directory, and, 
 unless explicitly declaring the marriage to be 
 void, if not complied with, do not render it 
 void. See 4 Iowa, 449 ; 26 Mo. 260 ; 2 
 Watts, 9 ; 1 How. 219 ; 2 Halst. 138 ; 2 N. 
 H. 268. As to rights of married women, see 
 Husband and Wife ; Wife. 
 
 MARRIAGE ARTICLES. Articles of 
 agreement between parties contemplating 
 marriage, in accordance with which the mar- 
 riage settlement is afterwards to be drawn 
 up. They are to be binding in case of mar- 
 riage. They must be in writing, by the 
 Statute of Frauds ; Burt. R. P. 484 ; Crabb, 
 R. P. § 1809 ; 4 Cruise, Dig. 274, 323. 
 
MARRIAGE BROKAGE 
 
 158 
 
 MARTIAL LAW 
 
 MARRIAGE BROEAGIi. 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 mar- 
 riage between them. The money paid for 
 such services is also known by this name. 
 
 It is a doctrine of the courts of equity that 
 all maiTiage brokage contracts are utterly 
 void, as against public policy, and are, there- 
 fore, incapable of confirmation ; 1 Fonbl. Eq. 
 b. 1, c. i, 10, notes; 2 Story, Eq. Jur. § 
 263. 
 
 MARRIAGZ! PORTION. That property 
 ■which is given to a woman on her marriage. 
 See Dowry. 
 
 MARRIAGE, PROMISE OF. See 
 Pkomise of Marriage. 
 
 MARRIAGE SETTLEMENT. An 
 
 agreement made by the parties in cohtempla^ 
 tion of marriage, by which the title to certain 
 property is changed, and the property to some 
 extent becomes inalienable ; 1 Rice, Eq. 815. 
 See 2 Hill, Ch. 3 ; 8 Leigh, 29; 1 D. & B. 
 Eq. 389 ; 2 id. 103 ; Baldw. 344 ; 15 Mass. 
 106 ; 1 Yeates, 221 ; 7 Pet. 348. See 2 
 Washb. R. P. Appx. ; Atherly, Marr. Settl. 
 
 MARSHAL. An officer of the United 
 States, whose duty it is to execute the process 
 of the courts of the United States. His duties 
 within the district for which he is appointed 
 are very similar to those of a sheriff'. See U. 
 S. Stat, at Large, Index ; Serg. Const. Law, 
 ch. 25; 2 Dall. 402; Burr's Trial, 365 ; 1 
 Mas. 100 ; 2 Gs^l. 101 ; 4 Cra. 96 ; 7 id. 276 ; 
 9 id. 86, 212; 6 Wheat. 194; 9 id. 645. 
 
 MARSHAL. To arrange; put in pro- 
 per order : e. g. '■' the law will marshal words, 
 ut res maffis valeat." Hill, B., Hardr. 92. 
 
 MARSHALLING ASSETS. The 
 
 equity of marshalling seems capable of be- 
 ing carried into effect in one of two ways : 
 either, first, by restraining the parties against 
 whom it exists from using a security to the 
 injury of another ; or, secondly, by giving 
 the party entitled to the protection of this 
 equity the benefit of another security in lieu 
 of the one of which he has been disappointed. 
 In other words, the right might be enforced 
 either by injunction against the paramount 
 creditor, or by subrogation in favor of the 
 former creditor. In practice, however, the 
 latter of these two methods is the one most 
 usually employed, and the sounder doctrine 
 seems to be that the first of the two ought 
 not to be resorted to except under very pecu 
 liar circumstances. But there are decisions 
 to the contrary ; 2 Lead. Cas. Eq. 280. Of 
 course, when both funds are in court or under 
 its immediate control, the case is different. 
 See Bisp. Eq. § 341 et seq. See Assets. 
 
 MARSHALSEA. In English La'w. 
 A prison belonging to the king's bench. It 
 has now been consolidated with others, under 
 the name of the queen's prison. 
 
 MARSHALSEA, COURT OF. A court 
 
 originally held before the steward and marshal 
 of the royal household. 
 
 It was instituted to administer justice be- 
 tween the servants of the king's household 
 that they might not be drawn into other courtB 
 and their services lost. It was anciently am- 
 bulatory ; but Charles I. erected a court of 
 record, by the name of curia palatii, to be 
 held before the steward of the household, etc. 
 to hold pleas of all personal actions which 
 should arise within twelve miles of the royal 
 palace at Whitehall, not including the city of 
 London. This court was held weekly, to de- 
 termine causes involving less than twenty 
 pounds, together with the ancient court of 
 MarshaJsea, in the borough of Sonthwark. A 
 writ of error lay thence to the king's bench. 
 Both courts were abolished by the stat. 12 & 
 13 Vict. c. 101, § 13. See Jacob, Whishaw, 
 Law Diet. 
 
 MARTIAL LAViT. That military rule 
 and authority which exists in time of war, 
 and is conferred by the laws of war, in rela- 
 tion to persons and things under and within 
 the scope of active military operations, in 
 carrying on the war, and which extinguishes or 
 suspends civil rights and the remedies founded 
 upon them, for the time-being, so far as it 
 may appear to be necessary in order to the 
 full 'accomplishment of the purposes of the 
 war. Prof. Joel Parker, in N. A. Rev., Oct. 
 1861. 
 
 It supersedes all ci^vil proceedings which 
 conflict with it; Ben^t, Mil. Law; but does 
 not necessarily supersede all such proceedings. 
 
 It extends, at least, to the camp, environs, 
 and near field of military operations ; 7 How. 
 83 ; 3 Mart. La. 530 ; 6 Am. Arch. 186 ; and 
 see, also, 2 H. Blackst. 165 ; iTerm, 549; 1 
 Knapp, P. C. 316; 13 How. 115; but does 
 not extend to a neutral country ; 1 Hill, N. 
 Y. 377 ; 25 Wend. 483, 612, n. Nor in time 
 of insurrection can it be applied to citizens in 
 states in which the courts are open and their 
 process unobstructed ; 4 Wall. 2. It is 
 founded on paramount necessity, and imposed 
 by a military chief; 1 Kent, 377, n. For any 
 excess or abuse of the authority, the officer 
 ordering and the person committing the act 
 are liable as trespassers ; 13 How. 116, 154; 
 1 Cowp. 180. 
 
 Martial law must be distinguished from 
 military law. The latt«r is a rule of govern- 
 ment for persons in military service only, but 
 the former when in force is indiscriminately 
 applieiito all persons whatsoever; De Hart, 
 Mil. Law, 17. Consult the articles Court 
 Martial, Military Law ; Hall. Int. Law; 
 1 Hale, PI. Cr. 347 ; 1 Lieb. Civ. Lib. ISO; 
 McArth. Courts Mart. 84; De Hart, Mil. 
 Law, 13-17; Tytl. Courts Mart. 11-27, 
 58-62, 105; Hough, Mil. Courts, 349, 350; 
 O'Brien, Mil. Law, 26, 30; 3 Webster, Works, 
 459 ; Story, Const. § 1342 ; 8 Opin. Atty. 
 Gen. 366-374; 12 Mete. 66; 8 Mart. La. 
 531 ; 1 Mart. Cond. 169, 170, n. ; 7 How. 
 59-88; 15 id. 115; 16 id. 144; 10 Johns. 
 328 ; 4 West. L. Monthl. 449. 
 
MARYLAND 
 
 159 
 
 MARYLAND 
 
 MARYLAND. One of the thirteen ori- 
 ginal states of the Union. 
 
 The territory of Maryland was Included In the 
 grants previously made to companies formed for 
 the settlement of Virginia. These grants were 
 annulled, and Maryland was granted by Charles 
 the First, on the 20th of June, 1633, to Cecilius 
 Calvert, Baron of Baltimore. The first settle- 
 ment under the authority of Lord Baltimore was 
 made on the 27th of March, 1634, in what is 
 now St. Mary's county. Some settlements were 
 previously made on Kent Island, under the 
 autliority of Virginia. 
 
 During its colonial period, Maryland was gov- 
 erned, with slight interruptions, by the lord pro- 
 prietary, under its charter. 
 
 The government of Maryland was assumed by 
 commissioners acting under the commonwealth 
 of England ; but in a few years Lord Baltimore 
 was restored to his full powers, and remained 
 undisturbed until the revolution of 1688, when 
 the government was seized by the crown, and not 
 restored to the proprietary till 1715. From this 
 period there was no interruption to the proprie- 
 tary rule until the revolution. 
 
 The territorial limits of Maryland seem to have 
 been plainly described In the charter ; still, long 
 disputes arose about the boundaries, in the ad- 
 justment of which this state was reduced to her 
 present limits. 
 
 The lines dividing Maryland from Pennsyl- 
 vania and Delaware were fixed under an agree- 
 ment between Thomas and Bichard Penn and 
 Lord Baltimore, dated 1760. These lines were 
 surveyed by Mason and Dixon ; and hence the 
 line between Maryland and Fenn|ylvania is 
 called Mason and Dixon's line. 
 
 By this agreement, the rights of grantees under 
 the respective proprietaries were saved, and pro- 
 vision made for confirming the titles by the gov- 
 ernment in whose jurisdiction the lands granted 
 were situated. The boundary between Maryland 
 and Virginia has never been finally settled. 
 Maryland claimed to the South branch of the 
 Potomac; but Virginia has held to the north 
 branch, and exercised jurisdiction up to that line. 
 The rights of the citizens of the respective states 
 to fish and navigate the waters which divide 
 Maryland and Virginia were fixed by compact 
 between the two states in 1785. 
 
 The first constitution of this state was adopted 
 on the eighth day of November, 1776. The pre- 
 sent constitution was adopted in 1867 and went 
 into operation on the fifth of October in that 
 year. It declared that no person ought to be 
 molested on account of his religious belief, or 
 compelled to frequent or maintain any place of 
 worship or any ministry. Any person who be- 
 lieves in a God, and that he will be punished or 
 rewarded for his acts either in this world or the 
 next, is competent as a witness or a juror. The 
 jury are the judges of the law and th^ fact in 
 criminal cases. In civil cases the trial by jury is 
 preserved where the amount in controversy ex- 
 ceeds five dollars. Lotteries are prohiljjted. No 
 divorce can be granted by the legislature. No 
 holder of public money, while Indebted to the 
 state, no person who fights a duel or sends or 
 accepts a challenge, no person holding any oiUce 
 under the United states, no minister or preacher 
 of the gospel, is eligible to any office of trust or 
 profit. No debt can be created for purposes of 
 internal improvement. Imprisonment for debt 
 is not allowed. Slavery shall not be re-estab- 
 lished in this state. Civil officers are nearly all 
 elected by the people. Every male citizen twenty- 
 one years of age, except lunatics, who has re- 
 sided a year in the state and six months in the 
 county or city, is entitled to vote. 
 
 The statute law of Maryland, from the earliest 
 colonial times to 1878, inclusive, has been codi- 
 fied in one volume, which was adopted "in lieu 
 of and as a substitute for all the public general 
 laws, and public local laws heretofore passed by 
 the legislature ;" see Revised Code of Md. 1878 ; 
 Acts 1878, ch. 196 ; and Acts 1880. 
 
 The Leoislativb Poweb. — This is lodged in 
 "the general assembly of Maryland ," composed of 
 two branches : a senate and a house of delegates. 
 
 The senate is composed of members elected 
 one from each county (the city of Baltimore also 
 electing three, one from each legislative district 
 therein) for the term of four years. One-half 
 of the senate is elected every two years. A sena^ 
 tor must be twenty-five years old, a citizen of the 
 United States, have resided three years next be- 
 fore election in the state, and the last year thereof 
 in the county or city from which he is elected. 
 
 The house of delegates consists of members 
 elected from the various counties. They are ap- 
 portioned according to population ; but the 
 smallest county is not to have less than two. 
 Each legislative district of the city of Baltimore 
 is entitled to the number of delegates to which 
 the largest county shall be entitled under the 
 apportionment. A delegate must be twenty-one 
 years of age, and otherwise possess the same 
 qualifications as a senator. 
 
 The general assembly meets on the first Wed- 
 nesday in January every even year, and the ses- 
 sion lasts for a period not longer than ninety 
 days. It can grant no act of incorporation 
 which may not be repealed. It cannot authorize 
 taking private property without first paying or 
 tendering a just compensation to the owner. 
 
 The Executive Powee. — TTie governor is 
 elected every fourth year from 1867, for the term 
 of four years, commencing on the second Wed- 
 nesday in January next after his election. He 
 must be thirty years old, ten years a citizen of 
 the state, and for five years next preceeding his 
 election a resident of the state. The governor 
 is commander of the land and naval forces ; ap- 
 points, with the consent of the senate, all mili- 
 tary officers, and all civil officers whose appoint- 
 ment is not otherwise provided for ; in case of 
 the vacancy of any office during the recess of 
 the senate, he is to appoint a person to said 
 office, to hold until the end of the next session 
 of the legislature ; may suspend or arrest any 
 military pfflcer for any military offence, and may 
 remove any civil officer appointed by the gover- 
 nor ; may convene the legislature or the senate 
 alone ; has power to grant reprieves and par- 
 dons, but before granting a nolle prosequi or par- 
 don, must give notice of the application, and of 
 the day on or after which his decisions will be 
 given. When required, he is to report to either 
 branch of the legislature the reasons which influ- 
 enced his decision. He may not appoint to an 
 office a person who has been rejected by the 
 senate. He must reside at Annapolis. If a va- 
 cancy occurs in the office of governor, the legisla- 
 ture, if in session, appoints a substitute ; and if 
 not in session, the president of the senate shall 
 act as governor ; and if there is no such presi- 
 dent, the speaker of the house is to act. 
 
 A secretary of state is appointed by the gover- 
 nor, with the advice of the senate. 
 
 A treasurer is appointed by the two houses of 
 the legislature every second year. 
 
 A comptroller of the treasury is elected by the 
 voters of the state at the same time as members 
 of the house of delegates. 
 
 The Judiciai. Power. — The court of appeals 
 consists of eight judges, one from each judicial 
 
MASSACHUSETTS 
 
 160 
 
 MASSACHUSETTS 
 
 district, one of whom Is designated Iby the gov- 
 ernor, with the approval of the senate, as chief 
 justice. It has appellate jurisdiction only. 
 
 There are seven cireait courts, one in each of 
 the seven districts of the state (Baltimore city 
 forming the eighth district) ; each court has one 
 chief and two associate judges. The judge of 
 the court of appeals from the circuit (or district) 
 is ex officio chief judge of the circuit court in 
 his circuit, except in the city of Baltimore. The 
 term of ofBce of the judges is fifteen years. 
 
 An orphans' court exists in each county, and 
 in the city of Baltimore, composed of three 
 judges, elected for the terra of four years by the 
 people of the county or city. 
 
 The city of Baltimore constitutes a judicial 
 circuit and has five courts, the judges of which 
 are elected for fifteen years. 
 
 The superior court has civil jurisdiction in all 
 common law cases. 
 
 The circuit court has an exclusive equity juris- 
 diction. 
 
 The court of common pleas has civil jurisdic- 
 tion in all common law cases and all cases under 
 the state insolvent law. 
 
 The city court has civil jurisdiction in all com- 
 mon law cases, and appellate jurisdiction in all 
 appeals from justices of the peace. 
 
 Justices of the peace have civil jurisdiction in 
 all cases when the deht or amount of damages 
 claimed does not exceed $100. 
 
 The crimiMal court has jurisdiction of all 
 crimes and ofiences committed in the city. 
 
 The governor, comptroller of the treasury, 
 and the treasurer constitute the board of public 
 works. 
 
 A commissioner of the land office is appointed 
 by the governor for the term of four years. He 
 is judge and clerk of the land oflRce. 
 
 Justices of the peace are appointed by the gov- 
 ernor. 
 
 The comptroller, sheriffs, county commission- 
 ers, etc., are elected every second year. 
 
 MASSACHUSETTS. One of the ori- 
 ginal thirteen states of the United States of 
 America. 
 
 In 1627, a company of Englishmen obtained 
 from the council of the Plymouth colony a grant 
 of "all that part of New England lying three 
 miles south of Charles river and three miles 
 north of Merrimac river, and extending from the 
 Atlantic to the South sea." In 1628, Charles I. 
 granted them a charter, under the name of "The 
 Governor and Company of the Massachusetts 
 Bay in New England." This charter continued 
 till 1684, when it was adjudged forfeited. From 
 this time till 1691, governors appointed by the 
 king ruled the colony. In 1691, William and 
 Mary granted a new charter, by which the colo- 
 nies of Massachusetts Bay and New Plymouth, 
 the province of Maine, and the territory called 
 Nova Scotia, were incorporated into one govern- 
 ment, by the name of The Province of Massa- 
 chusetts Bay. 1 Story, Const. § 71. This charter 
 continued as the form of government until the 
 adoption of the state constitution In 1780. 
 
 The constitution, as originally adopted, was 
 drafted by John Adams. 4 Adams, Life and 
 Works, 213. It contained a provision for calling 
 a convention for its revision or amendment in 
 1795, if two-thirds of the voters at an election 
 held for this purpose should be in favor of it. 
 Const. Mass. c. 6, art. x. But at that time a 
 majority of the voters opposed any revision ; 
 Bradford's Hist. Mass. 294 ; and the constitution 
 continued without amendment till 1820, when a 
 convention was called for revising or amending 
 it. Mass. Stat. 1820, c. 15. This convention 
 
 proposed fourteen amendments, nine of which 
 were accepted by the people. Since then, six- 
 teen additional articles of amendment have been 
 adopted at different times, making twenty-five in 
 all. In 1853, a second convention for revising 
 the constitution was held, which prepared an 
 entirely new draft of a constitution. This draft 
 upon submission to the people, was'rejected. ' 
 The constitution, as originally drafted, con- 
 sists of two parts, one entitled A Declaration of 
 the Eights of the Inhabitants of the Common- 
 wealth of Massachusetts, and the other The 
 Frame of Government. Const. Mass. Preamble. 
 
 The Deolabation op Rights.— The declara- 
 tion of rights asserts that all men are born free 
 and equal, and have certain natural, essential, 
 and unalienable rights, among them the rights 
 of life, liberty, and property, and, in fine, the 
 right of seeking safety and happiness. Art. i. 
 It declares the duty of public worship, and the 
 right of religious liberty; art. 11.; and that all 
 sects shall receive equal protection from the 
 law. Amend, xi. That the commonwealth is a 
 sovereign state, enjoying every power not ex- 
 pressly delegated to the United States. Art, It. 
 That all power is derived from the people, and 
 all public ofiScers are at all times accountable to 
 them. Art. v. That no man has any title to 
 exclusive privileges except from his public ser- 
 vices ; and this title is not heritable or transmis- 
 sible. Art. vl. That government Is for the pro- 
 tection of the people, and they alone have a 
 right to change it when their safety requires. 
 Art. vii. That, to prevent those in power from 
 becoming oppressors, the people have a right to 
 cause their public oflScers to return to private 
 life, and to fill their places by election ; art. viii. ; 
 and that all elections should be free, and every 
 qualified voter have a right to vote and to be 
 elected to office. Art'. Ix. Each Individual has 
 a right to be protected by law, and must, conse- 
 quently, pay his share of the expense of this 
 protection ; hut his property cannot he taken or 
 applied to public uses without his consent, or 
 that of the representative body ; and wherever 
 the property of any person is taken for public 
 uses, he shall receive reasonable compensation 
 therefor. Art. x. Every one should find in the 
 laws a certain remedy for all wrongs to person, 
 property, or character, and should obtain justice 
 freely, promptly, and completely. Art. xi. 
 Every person accused of an offence shall have a 
 right to have it formally and clearly set forth ; 
 shall not be compelled to furnish evidence against 
 himself ; shall be allowed to produce proofs in 
 his favor, and to be heard by himself or his coun- 
 sel, and shall not be punished (unless in the 
 army or navy) without trial by jury. Art. xii. 
 The proof of facts in the vicinity where they 
 happen Is one of the greatest securities of life, 
 liberty, and property. Art. xiil. All warrants 
 should be supported by an oath, and, if for the 
 search, arrest, or seizure of persons or property, 
 should describe such persons or property. Art. 
 xiv. In all civil suits (unless, i^causes arising 
 on the seas, or suits relating to mariners' wages, 
 the laws provide otherwise) the trial by jniy 
 shall be held sacred. Art. xv. The liberty of 
 the press ought not to be restrained. Art. xvi. 
 The people have a right to keep and bear arms 
 for the common defence ; as, in peace, armies 
 are dangerous to liberty, they ought not to be 
 maintained without legislative consent ; the mili- 
 tary power shall be in exact subordination to the 
 civil authority. Art. xvil. Frequent recurrence 
 to the fundamental principles of the constitution, 
 constant adherence to piety, justice, moderation, 
 temperance, industry, and frugality, are neces- 
 
MASSACHUSETTS 
 
 161 
 
 MASSACHUSETTS 
 
 Bary to preserve liberty and to maintain a free 
 government; the people ought especially to refer 
 to these in choosing otflcers, and have a right to 
 require of their officers an observaDce of them in 
 making and executing the laws. Art. xviii. The 
 people have a right to assemble peaceably, to 
 consult on the common good, to instruct their 
 representatiws, and to petition the legislative 
 body. Art. xix. The power to suspend the laws 
 should never be exercised but by the legislature, 
 or by legislative authority in cases provided by 
 law. Art. XX. Freedom of debate in the legis- 
 lature is so essential to the rights of the people 
 that it cannot be the foundation of any accusa- 
 tion, prosecution, action, or complaint in any 
 court or place whatsoever. Art. xxi. The leg- 
 islature ought to assemble frequently. Art. xxii. 
 No tax ought to be laid without the consent of 
 the people or their representatives. Art. xxiii. 
 Laws to punish acts already done, and not de- 
 clared crimes by preceding laws, are unjust, and 
 Inconsistent with the principles of a free govern- 
 ment. Art. xxiv. No subject ought, in any 
 case, to be declared guilty of treason by the 
 legislature. Art. xxv. No magistrate shall take 
 excessive bail, impose excessive fines, or inflict 
 cruel or unusual punishments. Art. xxvi. In 
 peace, no soldier should be quartered in any 
 house without the owner's consent ; and in war, 
 such quarters should not be made but by the 
 civa magistrate, in a manner provided by law. 
 Art. xxvii. No person can be subjected to mar- 
 tial law, unless in the army or navy, or militia 
 In actual service, except by legislative authority. 
 Art. xxviii. An impartial interpretation of laws 
 and administration of justice is essential to the 
 preservation of every right. It is the citizen's 
 right to be thed by judges as free, impartial, 
 and Independent as the lot of humanity will 
 admit. It is not only the best policy, but for 
 the security of the people, that the judges of 
 the supreme court should hold office during 
 good behavior, but that they should have honor- 
 able salaries established by standing laws. Art. 
 xxix. Neither the legislative, judicial, nor ex- 
 ecutive department shall ever exercise any powers 
 of government except its own, that it may be a 
 government of laws, and not of men. Art. 
 
 XXX. 
 
 Thb Frame op Government. — The name of 
 the state Is the Commonwealth of Mas^chu- 
 setts. 
 
 No property qualification Is required for voting 
 or for eligibility to any office, except those of gov- 
 ernor or lieutenant-governor. Const. Amend, 
 iii., xiil. Every male citizen, twenty-one years 
 or more of age, who has resided within the com- 
 monwealth twelve months, and in the town where 
 he claims to vote six months, preceding an elec- 
 tion, who has, unless exempt from taxation, paid 
 a tax within two years (Amend, iii.), who can, 
 unless physically disabled, read the constitution 
 in the English language, and write his name 
 (Amend, xx.), and who, If a naturalized for- 
 eigner, has re^ed in the United States two years 
 subsequent to his naturalization (Amend, xxiii.) , 
 may vote at any election. The last two amend- 
 ments, adopted respectively in 1857 and 18.59, do 
 not disqualify persons who had a legal right to 
 vote at the time of their adoption. 
 
 Oaths of Office. — Every person chosen or ap- 
 pointed to any office is obliged to take an oath or 
 affirmation faithfully to discharge the duties of his 
 office (c. 6, a. 1), and to support the constitution 
 of the commonwealth. Amend, vi. An oath to 
 support the constitution of the United States is 
 required by the laws of the United States of every 
 member of a state legislature, and of all judicial 
 Vol. II.— 11 
 
 and executive officers in the states. St. 1789, c. 
 1, § 3 ; 1 U. S. Stat, at Large, 22. 
 
 Amendments. — Specific amendments may be pro- 
 posed by the general court, and, if adopted in 
 both houses, by a vote of two-thirds of the mem- 
 bers present, taken by yeas and nays, in two suc- 
 cessive legislatures, and afterwards approved and 
 ratffied by a majoritj' of the voters at a popular 
 election, they become a part of the constitution. 
 Amend, ix. 
 
 The Legislative Power. — The Slsnate Is com- 
 posed of forty members, elected from single sena- 
 torial districts, each containing as nearly as pos- 
 sible the same number of legal voters. A senator 
 must be an inhabitant of the district for which 
 he Is chosen, and must have been an inhabitant 
 of the state for five years next preceding his elec- 
 tion, and ceases to be a senator on leaving the 
 commonwealth. Amend, xxii. Any vacancy 
 in the senate may be filled by vote of the people 
 of the unrepresented district, upon the order of 
 a majority of senators elected. Amend, xxiv. 
 
 The House of Representatives consists of two 
 hundred and forty members, chosen in each of 
 the representative districts into which the coun- 
 ties are divided for the purpose. The number of 
 representatives sent by any district depends on 
 the number of legal voters in it; but no district 
 can send more than three representatives. A 
 representative must have been an inhabitant of 
 the district for which he Is chosen for at least one 
 year next preceding his election, and ceases to 
 represent his district on leaving the common- 
 wealth. 
 
 The two houses together constitute the " Gen- 
 eral Court of Massachusetts." The members of 
 both houses are elected annually, at the state 
 ^teetions, on Tuesday after the first Monday in 
 November. Amend, xv. If the people of any 
 representative district fail to elect a representa- 
 tive on the day of the annual election, they may 
 hold a second meeting for this purpose on the 
 fourth Monday of November. Amend, xv. The 
 general court meets on the first Wednesday in 
 January, and Is dissolved on the day before the 
 session of the next general court. Amend, x. 
 It may be prorogued by the governor at any 
 time, at the request of both houses, or without 
 their request, by the advice of the council, for a 
 period not exceeding ninety days (c. 3, § 1, art. 
 6) ; and he may call them together sooner than 
 the time to which they were adjourned, if the in- 
 terests of the commonwealth require. The 
 legislature has power to create courts (e. 1, § 1, 
 art. 3) ; to make all reasonable laws for the 
 state ; to provide for the election of officers, and 
 to prescribe their duties ; to impose taxes and 
 duties (c. 1, § 1, a. 4) ; and, upon the applica- 
 tion and with the consent of the inhabitants, to 
 create cities, in towns of not less than twelve 
 thousand inhabitants. Amend, v. That taxes 
 may be equal, there shall be a new valuation of 
 estates every ten years. C. 1, § 1, a. 4. Th6 
 two houses are quite distinct, and have each the 
 usual privileges in regard to judging of the 
 qualifications, election, etc. of members, regula- 
 tion of their conduct, etc. The members of the 
 house are exempt from arrest on mesne process 
 in going to, attending, or returning from th^ 
 assembly. C. 1, § 8, a. 10, 11. Sixteen members 
 of the senate and one hundred members of the 
 house constitute a quorum for the transaction of 
 business ; but a less number may organize tem- 
 porarily, adjourn from day to day, and compel 
 the attendance of absent members. Amends, 
 xxi., xxll. 
 
 The Executive Power. — The Governor Is the 
 supreme executive (aagistrate. He Is styled the 
 
MASSACHUSETTS 
 
 162 
 
 MASSACHUSETTS 
 
 " Governor of the Commonwealth of Massachu- 
 setts," and his title is " His Excellency." C. 2, 
 § 1, a. 1. He is elected annually. C. 2, § 1, a. 
 2. Seven years' residence in the commonwealth, 
 and the possession of a free-hold of the value of 
 a thousand pounds, are the necessary qualifica- 
 tions for the office of governor or lieutenant- 
 governor. C. 2, § 1, a. 1 ; § 2, a. 1. The gov- 
 ernor has authority to call together the council- 
 lors, and shall, with them, or five of them at 
 least, from time to time hold a council for order- 
 ing and directing the afi'airs of the commonwealth. 
 C. 2, § 1, a. 4. He is commander-in-chief of the 
 army and navy of the commonwealth, has au- 
 thority to train the militia for the defence of the 
 commonwealth, and to assemble the inhabitants 
 for this purpose, and is intrusted with all the 
 powers incident to the office of commander-in- 
 chief, except that no inhabitants are obliged to 
 march out of the state without their own consent 
 or that of the general court. C 2, § 1, a. 7. 
 The pardoning power is in the governor, with 
 the advice of the council. C. 2, § 1, a. 8. No 
 money can issue from the treasury without his 
 warrant. C. 2, § 1, a. 11. He has the veto 
 power, and, with the advice and consent of the 
 council, the appointment of all judicial officers, 
 coroners, and notaries public. C. 2, § 1, a. 9, 
 amend, iv. 
 
 The lAmtenant- Governor is elected at the same 
 time, for the same term, and must have the same 
 qualifications, as thegovernor. His title is " His 
 Honor." He is a member of the council, and, in 
 the absence of the governor, its president. In case 
 of a vacancy in the office of governor, the lieu- 
 tenant-governor acts as governor. C. 2, §2, a. 3, 3. 
 
 The Council consists of eight councillors, each 
 chosen annually from a separate councillor dis- 
 trict. The state is re-districted every ten years. 
 Amend, xvi. Five councillors constitute a quo- 
 rum, and their duty is to advise the governor in 
 the executive part of the government. C. 2, § 3, 
 a. 1. In case of vacancies in both the offices of 
 governor and lieutenant-governor, the council, or 
 the major part of them, shall have and exercise 
 the powers of the governor. C. 2, § 3, a. 6. 
 Vacancies in the council are filled by concurrent 
 vote of the two branches of the legislature ; or, 
 if the legislature is not in session, by the gover- 
 nor's appointment. Amend, xxv. 
 
 The Secretary of the Commonwealth, the Trea- 
 surer, Auditor, and Attorney- General, are chosen 
 annually at the state election (Amend, xvii.) ; 
 and, that the citizens of the commonwealth may 
 be assured from time to time that the moneys re- 
 maining in the public treasury, iipon the settle- 
 ment and liquidation of the public accounts, are 
 their property, no man shall be eligible as trea- 
 surer more than five successive years. C. 2, § 4, 
 a. 1. Every councillor, the secretary, treasurer, 
 auditor, and attorney-general, must have been 
 an inhabitant of the state for the five years im- 
 mediately preceding his election or appointment. 
 Amends, xvi., xvii., xxii. Sheriffs, registers of 
 probate, clerks of courts, and district attorneys 
 are chosen by the people of the several counties. 
 Amend, xix. 
 
 The Judicial Power.— The Supreme Judicial 
 Court consists of one chief and six associate 
 justices. Four justices constitute a quorum to 
 decide all matters requisite to be heard at law. 
 Public Statutes, ch. 150, §§ 1 «« seq. Gen. Stat. 
 c. 112, § 1 e« seq. A law term of the court for 
 the commonwealth is held at Boston on the first 
 Wednesday of January in each year, which may 
 be adjourned from time to time, and to such 
 places and times as may be convenient for deter- 
 mining questions of law aiising in four of the east- 
 
 ern counties, (viz., Barnstable, Middlesex, Nor- 
 folk, and Suffolk) , and one term a year in each of 
 the remaining ten counties for cases in those 
 counties respectively (except that one term only 
 for Bristol, Dukes, and Nantucket is held in Bris- 
 tol, and that the terms for both Franklin and 
 Hampshire counties are held together in alternate 
 years in the respective counties). Tlipse are regu- 
 lar terms of the court ; but no jury is to be sum- 
 moned except in certain special cases. Jury terms 
 of the court are also held by a single justice, at 
 times and places prescribed, once a year, in each 
 county, except that one term only is held for 
 Barnstable and Dukes counties, and two terms 
 annually for Sufiblk. Questions of law arising 
 at the jury terms are reported by the presiding 
 judge to the full bench. It is provided that the 
 court shall have general superintendence of all 
 courts of inferior jurisdiction, and may issue 
 writs of error, certiorari, mandamus, prohibition, 
 and quo warranto ; shall have original and ei- 
 clusive jurisdiction of the trials of indictments 
 for capital crimes, of petitions for divorce and 
 nullity of marriage and original and concurrent 
 jurisdiction with the superior court of petitions 
 for partition and writs of entry, for foreclosure 
 of mortgages, and of civil actions, except actions 
 of tort, in which the damages demanded or the 
 property claimed exceed in amount or value four 
 thousand dollars if brought in the county of 
 Suffolk, and one thousand dollars if brought in 
 any other county, if the plaintiff', or some one in 
 his behalf, before service of the writ, makes oath 
 or affirmation before some justice of the peace 
 that he verily believes the matter sought to be 
 recovered equals in amount or value said sums 
 respectively, a certificate of which oath or afiirma- 
 tion shall be endorsed on or annexed to the writ; 
 and also that it shall have jurisdiction in equity 
 of all cases and matters of equity, cognizahle 
 under the general priuciples of equity jurispru- 
 dence, and of certain specified cases when the 
 parties have not a plain, adequate, and complete 
 remedy at the common law. Pub. Stat. ch. 151 
 §§ 2 ei seq. Trials of indictments for capital 
 crimes shall be had before two or more justices, 
 and questions of law on exceptions, on appeals 
 from the superior court, on cases stated by the 
 parties, and on a special vei diet, and all issues 
 in law, are to be heard and determined by the 
 full court. 
 
 The Superior Court is composed of one chief 
 justice and ten associate justices. It is to beheld 
 at the times and places prescribed, being at least 
 two terms annually in each county. The court has 
 exclusive original jurisdiction of complaints for 
 flowing land, of claims against the common- 
 wealth, of actions of tort except those of which 
 the police, district, or municipal courts or trial 
 justices have concurrent original jurisdiction, 
 and original jurisdiction of all civil actions ex- 
 cept those of which the supreme judicial court, 
 police, district, or municipal courts or trial jus- 
 tices have exclusive original jurisdiction ; Pub. 
 Stat. ch. 182, §§ 3e« seg.; jurisdiction of all civil 
 actions and proceedings legally brought before 
 it, by appeal or otherwise, from trial-justices, 
 police, district, or municipal courts, or courts 
 of insolvency, and from the decisions of 
 commissioners on insolvent estates of deceased 
 persons ; original jurisdiction of all crimes, of- 
 fences, and misdemeanors, except so far as the 
 Supreme Judicial Court has exclusive jurisdic- 
 tion in relation to capital crimes, and appellate 
 jurisdiction of all offences tried and determined 
 before a police, district, or municipal court or 
 trial justice ; and in criminal cases legally 
 brought before it its jurisdiction shall be final, 
 except as otherwise provided. It has concurrent 
 
MASSACHUSETTS 
 
 163 
 
 MASTER 
 
 jurisdiction witli the supreme court, as stated 
 above. 
 
 All the judicial officers are appoiuted by the 
 governor, with the advice of the council. Every 
 nomination for a judicial appointment must be 
 made by the governor to the council at least 
 seven days before the council can approve it. C. 
 3, § 1, a. 9. The judges hold office during good 
 behavior, but may be removed by the governor, 
 with the consent of the council, "upon the ad- 
 dress of both branches of the legislature. C. 3, 
 a. 1. The governor and council, and either 
 branch of the legislature, may require the opin- 
 ion of the justices of the supreme judicial court 
 upon important questions of law,- and upon 
 solemn occasions. C. 3, a. 2. 
 
 Judges of Probate and Insolvency are appointed 
 to hold office according to the tenor of their 
 commissions, so that there maybe one judge for 
 each county. They may interchange services or 
 perform each other's duties when necessary or 
 convenient. The courts of these judges are 
 courts of record, and have original jurisdic- 
 tion in their respective counties of all cases 
 of insolvency arising under the Insolvent 
 Act ; Pub. Stat. eh. 157 ; and of the probate 
 of wills, granting administration of the 
 estates of persons who at the time of their 
 decease were inhabitants of or resident in the 
 county, and of persons who die without the 
 state, leaving estate to be administered within 
 such county ; of the appointment of guardians 
 to minors and others, and of all matters relating 
 to the estates of such deceased persons and 
 wards ; and of petitions for the adoption of 
 children and the change of names. Pub. St. eh. 
 156. The courts are to be held at such times and 
 places as the statutes prescribe. They are held 
 at other places as well as at the shire towns ; and 
 sessions occur very frequently. At the time of 
 the adoption of the constitution, original juris- 
 diction in probate matters was exercised by 
 deputies or surrogates appointed by the governor 
 in the several counties, from whom there was an 
 appeal to the governor with the council. 21 
 Best. Law Sep. 78. Under a constitutional 
 provision, in 1784, an act was passed establishing 
 courts of probate in the several counties, and 
 making the supreme judicial court the supreme 
 court of probate. Sh. 1783, c. 46 ; 81 Bost. L. 
 Eep. 80. 
 
 The Supreme Judicial Court has a general super- 
 intendence and jurisdiction of all cases arising 
 under the Insolvent Act as a court of equity ; 
 Pub. Stat. ch. 157, § 16 ; and is the supreme 
 court of probate with appellate jurisdiction of 
 all matters determinable by the probate courts, 
 and by the judges thereof except in cases in 
 which other provisions are specially made ; Pub. 
 Stat. eh. 166, § 5. 
 
 Justices of the Peace are appointed by the gov- 
 ernor, by and with the advice and consent of the 
 council. The commissions of justices of the 
 peace shall continue only seven years, that the 
 people may not suffer from the long continuance 
 in place of any justice who shall fail of die- 
 charging the important duties of his office with 
 ability or fidelity ; but any such commission may 
 be renewed. C. 3. A certain number in each 
 county are designated as trial justices, who have 
 jurisdiction over petty criminal offences, and 
 who have original jurisdiction exclusive of the 
 superior court of all actions of replevin for 
 beasts destrained or impounded, and of all ac- 
 tions of contract, tort, or replevin where the 
 debt or damages demanded or value of the pro- 
 perty alleged to be detained does not exceed one 
 hundred dollars. They also have original and 
 concurrent jurisdiction with the superior court 
 where the amount involved is more than one 
 
 hundred and not more than three hundred dol- 
 lars. Pub. Stat. ch. l.'iS, § 12 et seq. 
 
 Police and District Courts consisting of one jus- 
 tice and two " special " justices, are established 
 in many of the cities and large towns, but may 
 not be hereafter in any town of less than ten 
 thousand inhabitants. They have substantially 
 the same jurisdiction in civil and criminal mat- 
 ters, as trial-justices, and their jurisdiction, when 
 both plaintiff and defendant reside in the dis- 
 trict, is exclusive of that of other police and dis- 
 trict courts and of trial-justices. Pub. Stat. ch. 
 154, § § 11 ef seq. A speedy settlement of suits 
 is obtained in these courts. 
 
 Municipal Courts are established in the city of 
 Boston, the principal one having original con- 
 current civil jurisdiction with the superior court 
 where the amount involved exceeds one hundred 
 and does not exceed one thousand dollars, 
 
 Gommissimis. — All commissions are to be in 
 the name of the commonwealth, and to be signed 
 by the governor and attested by the secretary, 
 and under the seal of the commonwealth. C. 
 6, a. 4. 
 
 Writs, — All writs are in the name of the com- 
 monwealth, under the seal of the court, bearing 
 teste of the first justice, not a party to the suit, 
 and signed by the clerk. C. 6, a. 5. 
 
 Habeas Corpus. — This writ shall be enjoyed in 
 the most free, easy, cheap, expeditious, and ample 
 manner ; shall not be suspended, except by the 
 legislature on the most urgent and pressing occa- 
 sions, and for not more than twelve months. C. 
 6, a. 7. 
 
 MASTER. One who has control over an 
 apprentice. 
 
 A master stands in relation to his apprentices 
 in loco parentis, and is bound to fulfil that rela- 
 tion, which the law generally enforces. He is 
 also entitled to be obeyed by his apprentices as 
 if they were his children. Bouvier, Inst. Index. 
 See Appbbnticeship. 
 
 One who is employed in teaching children : 
 known, generally, as a schoolmaster. As to 
 his powers, see Correction. 
 
 One who has in his employment one or 
 more persons hired by contract to serve him, 
 either as domestic or common laborers. 
 
 Where the hiring is for a definite term of 
 service, the master is entitled to their labor 
 during the whole term, and may recover dam- 
 ages against any one who entices away or 
 harbors them knowing them to be in his ser- 
 vice ; 6 Term, 221 ; 13 Johns. 322 ; 6 Wend. 
 4.S6; 4 Pick. 425; 2 E. & B. 216; 107 Mass. 
 555 ; or who debauches a female servant ; 4 
 Cow. 41 2 ; and if before the expiration of the 
 term the servant leaves without just cause, he 
 forfeits his wages; 2 C. & P. 510; 1 W. & 
 S. 265 ; 34 Me. 102; 43 id. 463 ; 19 Pick. 
 529 ; 19 Mo. 60 ; 25 Conn. 188 ; 6 N. H. 
 481. The master may dismiss a servant so 
 hired before the expiration of the term, either 
 for immoral conduct, wilful disobedience, or 
 habitual neglect, and the servant will not in 
 such case be entitled to his wages ; 4 C. & P. 
 518; 2 Stark. 256 ; 3 Esp. 235 ; but if the 
 dismissal be without reasonable cause, the 
 servant may recover damages from his master 
 therefor, to such an amount as to indemnify 
 him for the loss of wages during the time neces- 
 sarily spent in obtaining a fresh situation, and 
 for the loss of the excess of any wages con- 
 
MASTER 
 
 164 
 
 MASTER IN CHANCERY 
 
 tracted for above the usual rate ; 2 H. L. C. 
 607; ISO. B. 508; 20 E. L. & Eq. 157. 
 Where a sailor hired for a whole -voyage for a 
 certain sum, for which he received a promis- 
 sory note, and died before the end of the voy- 
 age, it was held that there could be no re- 
 covery ; 6 Term, 320 ; s. c. Sm. Lead. Cas. 
 17 and note. 
 
 A master may justify an assault in defence 
 of his servant, and a servant in defence of his 
 master : the master, because he has an interest 
 in his servant not to be deprived of his ser- 
 vice ; the servant, because it is a part of his 
 duty, for which he receives his wages, to 
 stand by and defend his master ; 1 Bla. Com. 
 429 ; Lofft, 215. The master is liable to be 
 sued for the injuries occasioned by the neg- 
 lect or unskilfulness or the tortious acts of his 
 servant whilst in the course of his employ- 
 ment; 3 Mass. 364; 19 Wend. 345; 40 E. 
 L. & Eq. 329 ; 26 Vt. 178 ; 23 N. H. 157 ; 
 although contrary to his express orders, if not 
 done in wilful disregard of those orders ; 14 
 How. 468 ; 7 Cush. 385 ; 10 111. 509 ; but he 
 is not liable for acts committed out of the 
 course of his employment ; 20 Conn. 284 ; 
 17 Mass. 508 ; 8 Term, 533 ; 16 E. L. & Eq. 
 448 ; nor for the wilful trespasses of his ser- 
 vants ; 1 East, 106 ; 24 Conn. 40 ; 1 Smith, 
 Ind. 455; 2 Mich. 519. A master is not 
 criminally liable for the acts of his servant un- 
 less committed by his command or with his 
 assent; 8 Ind. 312; 2 Stra. 885. 
 
 Where a master uses due diligence in the 
 selection of competent and trusty servants, 
 and furnishes them with suitable means to 
 perform the service in which he employs 
 them, he is not amenable to one of them for 
 an injury received by him in consequence of 
 the carelessness of another while both are 
 engaged in the same service; 3 M. & W. 
 Exch. 1 ; 4 Mete. 49 (a leading case) ; 5 N. 
 Y. 492; 3 Smith, Ind. 134, 153; 42 Me. 
 269; 100 U. S. 213; 40 E. L. & Eq. 376, 
 491. A distinction has been made to the effect 
 that if the negligence is that of a superior 
 or inferior servant, the servant injured may 
 recover; 3 Ohio St. 201 ; 9 Bush, 81 ; 93 
 111. 302; s. c. 34 Am. Rep. 168. The negli- 
 gence of officers invested with a controlling 
 or superior duty, is imputed to the master ; 
 100 U. S. 214. If the servant knows that he 
 is running a risk, through defective machinery, 
 or otherwise, he cannot recover, if he is in- 
 jured. Bat the burden of proving contributory 
 negligence is on the defendant ; and if the 
 servant, knowing a defect to exist, gave notice 
 to his employer of it and was promised that 
 it would be remedied and continued his work 
 in reliance on this promise, he is not, in law, 
 guilty of contributory negligence; 100 U. S. 
 213 ;• where the injury results from the master's 
 neglect to provide suitable means to perform 
 ,the service or to use reasonable care in the 
 selection of his servants, the master will be 
 answerable; 100 U. S. 213; 20 Barb. 449; 
 26 id. 39 ; 6 Du. N. Y. 225 ; 6 Cal. 209 ; 
 33 E. L. & Eq. 1 ; 36 id. 486 : 37 id. 281. 
 
 Important changes have been made in England 
 by Btat. 43 & 44 Vict. ch. 42, by which an em- 
 ployer is rendered liable for any injury to a ser- 
 vant caused (1) by reason of a defect in the ma- 
 chinery, etc., which arose from, or had not been 
 discovered or remedied owing to, the negligence 
 of the employer, or any person in hie employ 
 whose duty it was to see that such machinery, 
 etc. was in proper order ; (2) by reason of the 
 negligence of any person in the service of the 
 employer who has any superintendence intrnsted 
 to him ; (3) by reason of the negligence of any 
 person in the service of the employer, to whose 
 order the workman was bound to conform and 
 did conform, thereby receiving the injury ; (4) 
 by reason of the act or omission of a fellow ser- 
 vant in obedience to the rules or by-laws of the 
 employer (provided the injiu-y was caused by 
 some defect in such rules, etc.), or in obedience 
 to any particular instructions given by a fellow 
 servant delegated with the employer's authority 
 in that behalf; (5) by reason of the negligence 
 of a fellow servant in charge of a railway signal, 
 train, or locomotive. 
 
 All contracts made by the servant within 
 the scope of his authority, express or implied, 
 bind the master. See Fkincipal ; Agent. 
 
 The master may give moderate corporal 
 correction to his menial servant while under 
 age ; for then he is considered as standing in 
 loco parentis ; 2 Kent, 261. See Assault. 
 
 The master is bound to supply necessaries 
 to an infant servant unable to provide for him- 
 self ; 2 Campb. 650 ; 1 Leach, 137 ; 1 Bla. 
 Com. 427, n. ; but not to provide evens 
 menial servant with medical attendance and 
 medicines during sickness ; 4 C. & P. 80 ; 7 
 Vt. 76. 
 
 See, generally, 23 Alb. L. J. 245 ; 12 Am. 
 L. Rev. 69 ; Wood, Mast. & Serv. 
 
 MASTER IN CHANCZiR'S'. An officer 
 of a court of chancery, who acts as an assist- 
 ant to the chancellor. 3 Edw. Ch. 458 ; 19 
 111. 131. 
 
 The masters were originally clerks associated 
 with the chancellor, to discharge some of tlie 
 more mechanical duties of his office. They were 
 called preeeptorei, and gradually increased in 
 number until there were twelve of them. They 
 obtained the title of masters in the reign of Edw. 
 III. Their oifice is mainly judicial in its charac- 
 ter, but sometimes includes ministerial offices. 
 See 1 Spence, Eq. Jur. 360-S67 ; 1 Harr. Ch. 
 436 ; 1 Bail. Ch. 77 ; 1 Des. Ch. 587. The office 
 was abolished in England by the 15 & 16 Vict. c. 
 80. In the United States, ofRcers of this name 
 exist in many of the states, with similar powers 
 to those exercised by the English masters, but 
 variously modified, restricted, and enlarged by 
 statute, "and in some of the states similar officers 
 are called commissioners and by other titles. 
 
 The duties of the masters are, generally: 
 first, to take accounts and make computa- 
 tions; 18- How. 295; 2 Munf. 129; 14 Vt. 
 501 ; 27 id. 673 ; Walk. Ch. 532 ; second, 
 to make inquiries and report facts ; 3 W. & 
 M. 258; 3 Paige, Ch. 305; 23 Conn. 529; 
 1 Stockt. Ch. 309; 2 Jones, Eq. 238; 6 
 Gray, 423 ; 6 Cal. 90 ; see 1 Freem. 502 ; 9 
 Paige, Ch. 372; third, to perform some spe- 
 cial ministerial acts directed by the court, 
 such as the sale of property ; 1 1 Humplir. 
 278 ; 25 Barb. 440 ; settlement of deeds, see 
 
MASTER OF THE CROWN 
 
 165 
 
 MASTER OF A SHIP 
 
 1 Cow. 711 ; appointment of new trustees, and 
 the like ; 1 Barb. Ch. Pr. 468 ; fourth, to 
 discharge such duties as are specially charged 
 upon them by statute. See Dan. Ch. Pr. ; 
 Poor Debtok ; Insolvency. 
 
 MASTER OP THE CROWN OF- 
 FICE. The queen's coroner and attorney in 
 the criminal department of the court of 
 queen's bench, who prosecutes at the relation 
 of some private person or common informer, 
 the crown being the nominal prosecutor. Stat. 
 6 & 7 Vict. c. 20 ; Whart. Diet. 
 
 MASTER OF THE ROLLS. In Eng- 
 lish Law. An officer of chancery, who has 
 the keeping of the rolls and grants which pass 
 the great seal and the records of the chan- 
 cery, and formerly exercised extensive judi- 
 cial functions in a court which ranked next to 
 that of the lord chancellor. 
 
 An oflScer with this title existed in the time of 
 the Conqueror. He had from most ancient times 
 an office in chancery, with distinct clerks. In 
 early times no judicial authority was conferred 
 "by an appointment as master of the rolls. In 
 the reigns of Hen. VI. and Edw. IV. he was 
 found sitting in a judicial capacity, and from 
 1623 to 1873, had the regulation of some branches 
 of the business of the court. He was the chief of 
 the masters in chancery ; and his judicial func- 
 tions, except those specially conferred by commis- 
 sion, appear to have properly belonged to him in 
 this character. 1 Spence, -Eq. Jur. 100, 357. 
 
 All orders and decrees made by him, except 
 those appropriate to the great seal alone, were 
 valid, unless discharged or altered by the lord 
 chancellor, but had to be signed by him before 
 enrolment; and he was especially directed to 
 hear motions, pleas, demurrers, and the like. 
 Stat. 3 Geo. II. c. 30 ; 3 & 4 Will. IV. c. 94 ; 3 
 Bla. Com. 443. , 
 
 Under the Judicature Acts, he is a judge of 
 the high court, and an ex-officio member of 
 the court of appeal. His own judicial duties 
 are not affected by these acts. Provision is, 
 however, made for the abolition of this office 
 when it shall become vacant, by order in 
 council, on the recommendation of the coun- 
 cil of judges, provided, that such order in 
 council be laid before the houses of parlia^ 
 ment for thirty days, and during that time, 
 neither house address her majesty against it ; 
 Stat. 36 & 37 Vict. c. 66, §§ 5, 31, 32 : Mozl. 
 & W. Law Diet. 
 
 MASTER OF A SHIP. In Maritime 
 Law, The commander or first officer of a 
 merchant-ship ; a captain. 
 
 The master of an American ship must be 
 a citizen of the United States ; 1 U. S. Stat, 
 at Large, 287 ; and a similar requirement 
 exists in most maritime states. In some 
 countries their qualifications in point of skill 
 and experience must be attested by examina- 
 tion by proper authorities ; but in the United 
 States the civil responsibility of the owners 
 for their acts is esteemed sufficient. A ves- 
 sel sailing without a competent master is 
 deemed unseaworthy, and the owners are lia- 
 ble for any loss of cargo which may occur, 
 but cannot recover on a policy of insurance 
 
 in case of disaster; 21 How. 7, 23 ; 6 Cow. 
 270; 12 Johns. 128, 136; 21 N. Y. 378; 
 Desty, Sh. & Adra. § 232. 
 
 The master is selected by the owners, and, 
 in case of his death or disability during the 
 voyage, the mate succeeds ; if he also dies 
 in a foreign country, the consignee of the 
 vessel, or the consul of the nation, may, in a 
 case of necessity and in the absence of other 
 authority, appoint a master. The master 
 himself may, in similar circumstances of ne- 
 cessity and distance from the owners, appoint 
 a substitute ; 1 Pars. Mar. Law, 387 ; 2 
 Sumn. 206; 13 Pet. 387. During a tem- 
 porary absence of the master, the mate suc- 
 ceeds ; 2 Sumn. 588. 
 
 He must, at the commencement of the voy- 
 age, see that his ship is seaworthy and fully 
 provided with the necessary ship's papers, 
 and with all the necessary and customary 
 requisites for navigation, as well as with a 
 proper supply of provisions, stores, etc. ; Bee, 
 80; 2 Paine, 291; 1 Pet. Adm. 219; Ware, 
 464; for the voyage; 1 Pet. Adm. 407; 1 
 W. & M. 338. He must also make a con- 
 tract with the seamen, if the voyage be a 
 foreign one from the United States ; 1 U. S. 
 Stat, at Large, 131 ; 2 id. 203. He must 
 store safely under deck all goods shipped on 
 board, unless by well-established custom or 
 by express contract they are to be carried on 
 deck ; and he must stow them in the accus- 
 tomed manner in order to prevent liability in 
 case of damage. In respect to the lading or 
 carriage of goods shipped as freight, he is 
 required to use the greatest diligence ; and 
 his responsibility attaches from the moment 
 of their receipt, whether on board, in his 
 boat, or at the quay or beach ; 3 Kent, 206 ; 
 Abti. Shipp. 423. 
 
 He must proceed on the voyage in which 
 his vessel may be engaged by direction of the 
 owners, must obey faithfully his instructions, 
 and by all legal means promote the interests 
 of the owners of the ship and cargo ; 3 Cra. 
 242. On his arrival at a foreign port, he 
 must at once deposit, with the United States 
 consul, vice consul, or commercial agent, his 
 ship's papers, which are returned to him when 
 he receives his clearance ; R. S. § 4309. 
 This does not apply, however, to those vessels 
 merely touching for advice; 9 How. 372. 
 He must govern his crew and prevent im- 
 proper exercise of authority by his subor- 
 dinates ; 2 Sumn. 1,584; 14' Johns.. 19. He 
 must take all possible care of the cargo dur- 
 ing the voyage, and, in case of stranding, 
 shipwreck, or other disaster, must do all law- 
 ful acts which the safety of the ship and the 
 interests of the owners of the ship and cargo 
 require; Fland. Shipp. 190; 19 How. 150; 
 13 Pet. 387. It is proper, but not indispen- 
 sable, in case of an accident, to note a protect 
 thereof at the first port afterwards reached ; 
 6 McLean, 76 ; and to give information to the 
 owners of the loss of the vessel as soon as 
 he reasonably can ; 4 Mas. 74. In a port of 
 refuge, he is not authorized to sell the cargo 
 
MASTER OF A SHIP 
 
 166 
 
 MATE 
 
 as damaged unless necessity be shown ; but 
 where it is so much injured as to endanger 
 the ship, or will become utterly worthless, it 
 -is his duty to sell it at the place where the 
 necessity arises ; 1 Blatch. 357 ; 1 Story, 
 842. When possible, he is bound to notify 
 the owners before selling ; 30 Me. 302. 
 
 In time of war, he must avoid acts which 
 will expose his vessel and cargo to seizure 
 and confiscation, and must do all acts required 
 for the safety of the vessel and cargo and the 
 interests of their owners. In case of capture, 
 he is bound to remain by the vessel nntu con- 
 demnation, or until recovery is hopeless; 3 
 Mas. 161. He must bring home from foreign 
 ports destitute seamen ; Act of Congr. Feb. 
 28, 1803, § 4, Feb. 28, 1811,; R. S. 4578; 
 and must retain from the wages of his crew 
 hospital-money ; Act of Congr. Mar. 3, 1875 ; 
 R. S. 4585. 
 
 He is liable to the owners, and he and they 
 to all others whose interests are affected by 
 his acts, for want of reasonable skill, care, or 
 prudence in the navigation or management of 
 the vessel ; 1 "Wash. C. C. 142 ; including in- 
 juries done to the cargo by the crew ; 1 Mas. 
 104 ; and this rule includes Jthe improper dis- 
 charge of a seaman ; Ware, 65. 
 
 His authority on shipboard (Ware, 506) is 
 very great, but is of a civil character. He 
 has a right to control and direct the efforts of 
 the crew, and to use such force as may be 
 necessary to enforce obedience to his lawful 
 commands. He may even take life, if neces- 
 sary, to suppress a mutiny. He may degrade 
 officers; 1 Blatchf. & H. 195, 366; 1 Pet. 
 Adm. 244 ; 4 Wash. C. C. 338 ; 6 Bost. L. 
 Rep. 304; 21jd.l48; 2C.Rob.261. Hemay 
 punish acts of insolence, disobedience, and in- 
 subordination, and such other offences, when he 
 is required to do so for the safety and disci- 
 pline of the ship. Flogging is, however, pro- 
 hibited; 9 U. S. Stat, at Large, 515; and for 
 any unreasonable, arbitrary, or brutal exer- 
 cise of authority towards a seaman or passen- 
 ger he is liable, criminally and in a civil suit ; 
 4 U. S. Stat, at Large, 776, 1235. He may 
 also restrain or even confine a passenger who 
 refuses to submit to the necessary discipline of 
 the ship ; 3 Mas. 242 ; but without conferring 
 with the officers and entering the facts in the 
 log-book he can inflict no higher punishment 
 on a passenger than a reprimand ; 7 Penn. L. 
 J. 77 ; 6 C. Se p. 472 ; 1 Conkl. Adm. 430- 
 439 ; 14 Johns. 119; Desty, Adm. § 129. 
 
 If the master has not funds for the neces- 
 sary supplies, repairs, and uses (see 3 Wash. 
 C. C. 484) of his ship when abroad, he may 
 borrow money for that purpose on the credit 
 of his owners ; and if it cannot be procured on 
 his and their personal credit, he may take up 
 money on bottomry, or, in extreme cases, 
 may pledge his cargo ; 3 Mas. 255 ; but he 
 cannot bind owners to pay for repairs done at 
 the home port without special authority ; 47 
 Me. 254 ; nor when they or their agents are 
 so near that communication can be had with 
 them without delay ; 31 Conn. 61 ; Abb. 
 
 Shipp. 162; 3 Kent, Lect. 49. See Bot. 
 TOMBY ; Respondentia. 
 
 Generally, when contracting within the or- 
 dinary scope of his powers and duties, he is 
 personally responsible, as well as his owners 
 when they are personally liable. On bot- 
 tomry loans, however, there is ordinarily no 
 personal liability in this country, or in Eng. 
 land, beyond the fund which comes to the 
 hands of the master or owners from the sub- 
 ject of the pledge ; 6 Ben. 1 ; Abb. Shipp. 90- 
 Story, Ag. §§ 116, 123, 294. Inmost casesj 
 too, the ship is bound for the performance of 
 the master's contract; Ware, 322; but all, 
 contracts of the master in chartering or 
 freighting his vessel do not give such a hen ; 
 19 How. 82. 
 
 He has a lien upon, and a consequent right 
 to retain, the freight earned by his ship for 
 the repayment of money advanced by him for 
 necessary repairs and supplies ; 9 Mass. 648 ; 
 4 Johns. Ch. 218; or for seamen's wages; 
 and payment to the owner after notice of 
 the master's lien does not discharge the con. 
 signee ; 5 Wend. 315 ; but not, it would seem, 
 upon the ship itself ; 1 Pars. Mar. Law, 389 ; 
 nor has he any lien on the freight for his 
 wages : 11 Pet. 175 ; 5 Wend. 315. His 
 remedy is by an action in personam in ad- 
 miralty ; 2 Curt. C. C. 428. Consult Abbott^ 
 Flanders, Shipping ; Parsons, Maritime Law ; 
 3 Kent ; Desty, Ship. & Adm. 
 
 MASTERS AT COMMON LAW. 
 In English La-w. Officers of the superior 
 courts of common law, whose duty it is to tax 
 costs, compute damages, take affidavits and 
 the like. They are five in number in each 
 court. See stat. 7 Will. IV., and 1 Vict. c. 30. 
 
 MATE. In Maritime Law. The officer 
 next in rank to the master on board a mer- 
 chant ship or vessel. 
 
 In such vessels there is always one mate, and 
 sometimes a second, third, and fourth mate, ac- 
 cording to the vessel's size and the trade in 
 which she may be engaged. When the word 
 mate is used without qualification, it always de- 
 notes the first mate ; and the others are desig- 
 nated as above. On large ships the mate is fre- 
 quently styled first officer, and the second and 
 third mates, second and third bfiicers. Parish, 
 Sea Off. Man. 83-140. 
 
 The mate, as well as the inferior officers 
 and seamen, is a mariner, and entitled to sue 
 in the admiralty for his wages ; and he has 
 a lien on the vessel for his security. Even 
 when he acts as master in consequence of the 
 death of the appointed master, he can sue in 
 the admiralty for his proper wages as mate, 
 but not for the increased compensation to 
 which he is entitled as acting master. And 
 he is entitled, when sick, to be cured at the 
 expense of the ship. The mate should possess 
 a sufficient knowledge of navigation to take 
 command of the ship and carry on the voyage 
 in case of the death of the master ; and it 
 may well be doubted whether a vessel be sea- 
 worthy for a long voyage at sea when only the 
 master is competent to navigate her ; Blount, 
 
MATER FAMILIAS 
 
 167 
 
 MATRON 
 
 Com. Dig. 32 ; Dana, Seaman's Friend, 146 ; 
 Curtis, Rights and Duties of Merchant Sea- 
 men, 96, note. It is the special duty of the 
 mate to keep the log-book. The mate takes 
 charge of the larboard watch at sea, and in 
 port superintends the storage and breaking 
 out of the cargo. 
 
 The mate succeeds, of course, to the station, 
 rights, and authorities of the captain or mas- 
 ter on the death of the latter, and he also has 
 command, with the authority required by the 
 exigencies of the case, during the temporary 
 absence of the master. See Master op a 
 Ship ; Dana, Seaman's Friend ; Parish, Sea- 
 Officer's Manual; Curtis, Rights and Duties 
 of Merchant Seamen ; Parsons, Maritime Law ; 
 Desty, Shipp. & Adm. 
 
 MATER FAMILIAS. In CivU Law. 
 
 The mother of a family ; the mistress of a 
 family. 
 
 A chaste woman, married or single. Cal- 
 vinus, Lex. 
 
 MATERIAL MEN. Persons who fur- 
 nish materials to be used in the construction 
 or erection of ships, houses, or buildings. 
 
 By the general maritime law, material men 
 have a lien on a foreign ship for supplies or 
 materials furnished for such ship, which may 
 be recovered in the admiralty; 9 Wheat. 
 409 ; 19 How. 359 ; but no such lien exists 
 in the ease of domestic ships ; 4 Wheat. 438 ; 
 20 How. 393 ; 21 id. 248. See Lien. 
 
 By statutory provisions, material men have 
 a lien on ships and buildings, in some of the 
 states. See Lien. 
 
 MATERIALITY. The property of sub- 
 stantial importance or influence, especially as 
 distinguished from formal requirement. Ca- 
 pability of properly influencing the result of 
 the trial. 
 
 MATERIALS. Matter which is intended 
 to be used in the creation of a mechanical 
 structure; 71 Penn. 293; 36 Wise. 29. The 
 physical part of that which has a physical ex- 
 istence. 
 
 The general property in materials furnished 
 to a workman remains in the bailor where the 
 contract is merely one for the employment of 
 labor and services ; otherwise where it is a 
 sale. See Bailment ; Locatio ; Man- 
 date ; Tkover ; Trespass. 
 
 MATERNA MATERNIS (Lat. from 
 the mother to the mother's). 
 
 In French Laiv. A term denoting the 
 descent of property of a deceased person de- 
 rived from his mother to the relations on the 
 mother's side. 
 
 MATERNAL. That which belongs to, 
 or comes from, the mother : as, maternal au- 
 thority, maternal relation, maternal estate, 
 maternal line. See Line. 
 
 MATERNAL PROPERTY. That which 
 comes from the mother of the party, and other 
 ascendants of the maternal stock. Domat, 
 Liv. Pr61. t. 3, s. 2, n. 12. 
 
 MATERNITY. The state or condition 
 of a mother. 
 
 It is either legitimate or natural. The for- 
 mer 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 is only 
 presumed. 
 
 MATERTERA. A mother's sister. 
 
 MATERTERA MAGNA. A grand- 
 mother's sister. 
 
 MATERTERA MAJOR. A great- 
 grandmother's sister. 
 
 MATERTERA MAXIMA. A great- 
 great-grandmother's sister. 
 
 MATHEMATICAL EVIDENCE. That 
 evidence >vhich is established by a demonstra- 
 tion. ' It is used in contradistinction to moral 
 evidence. 
 
 MATIMA. A godmother. 
 
 MATRICIDE. ' The murder of a mother. 
 
 MATRICULA. In Civil Law. A regis- 
 ter in which are inscribed the names of per- 
 sons who becom§ 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 univer- 
 sity is to be matriculated. 
 
 MATRIMONIAL CAUSES. In the 
 
 English ecclesiastical courts there are five 
 kinds of causes which are classed under this 
 head, viz. : causes for a malicious jactitation ; 
 suits for nullity of marriage, on account of 
 fraud, incest, or other bar to the marriage ; 2 
 Hagg. Cons. 423 ; suits for restitution of con- 
 jugal rights ; suits for divorces on account 
 of cruelty or adultery, or causes which have 
 arisen since the marriage ; suits for alimony. 
 
 Matrimonial causes were formerly a branch of 
 the ecclesiastical jurisdiction. By the Divorce 
 Act of 1857, they passed under the cognizance of 
 the court for divorce and matrimonial causes 
 created by that act. This court is now included 
 in the probate, divorce, and admiralty division 
 of the high court of justice. See JtrDiCATUKB 
 Acts. 
 
 MATRIMONITJM. In CivU Law. A 
 legal marriage. A marriage celebrated in 
 conformity with the rules of the civil law was 
 called j'usiwm matrimonium; the husband wir, 
 the wife uxor. It was exclusively confined to 
 Roman citizens, and to those to whom the 
 cnnnubium had been conceded. It alone pro- 
 duced the paternal power over the children, 
 and the marital power — manus — over the 
 wife. The farreum, the coemptio, or the 
 MSM.S, was indispensable for the formation of 
 this marriage. See Paterfamilias. 
 
 MATRON. A woman who is a mother. 
 
 By the laws of England, when a widow 
 feigns herself with child, in order to exclude 
 the next heir, and a supposititious birth is ex- 
 pected, then, upon the writ de ventre inspici- 
 
MATTER IN CONTROVERSY 168 
 
 MAXIM 
 
 endo, a jury of women is to be impanelled 
 to try the question, whether with child or not ; 
 Cro. Eliz. 566. Interesting; cases will be 
 found at the last reference, and in 3 Moore, 
 823, and Cro. Jac. 685. So when a woman 
 was sentenced to death, and she pleaded in 
 stay of execution that she was quick with 
 child, a jury of matrons was impanelled to 
 try whether she was or not with child ; 4 Bla. 
 Com. 395. See Pregnancy ; Quick. 
 
 In the state of New York, if a female con- 
 vict sentenced to death be pregnant, _ the 
 sheriff is to summon a jury of six physicians, 
 who, with the sheriff, are to make an inquisi- 
 tion ; and, if she be found quick with child, 
 sentence is to be suspended. 2 Rev. Stat. 
 658, §§ 20, 21. 
 
 MATTER IN CONTROVERSY, OR 
 IN DISPUTE. The subject of litigation, in 
 the matter for which a suit is brought and up- 
 on which issue is joined; 1 Wall. 337. 
 
 To ascertain the matter in dispute we must re- 
 cur to the foundation of- the original contro- 
 versy ; the thing demanded, not the thing found ; 
 3 Dall. 405. An appeal will not lie on a claim 
 insufficient in amount to give jurisdiction when 
 suit was instituted, but which has been brought 
 within the limitation by the after-accrued inter- 
 est ; a La. An. 793 ; id. 911 ; 12 id. 87. See 3 
 Cra. 159. 
 
 MATTER IN DEED. Such matter as 
 may be proved or established by a deed or 
 specialty. Matter of fact, in contradistinc- 
 tion to matter of law. Co. Litt. 320 ; Steph. 
 PI. 197. 
 
 MATTER OF FACT. In Pleading. Mat- 
 ter the existence or truth of which is deter- 
 mined by the senses or by reasoning based up- 
 on their evidence. The decision of such mat- 
 ters is referred to the jury ; Hob. 127 ; 1 
 Greenl. Ev. § 49. 
 
 MATTER OF LAVT. In Pleading. 
 
 Matter the truth or falsity of which is deter- 
 mined by the established rules of law or by 
 reasoning based upon them. The decision of 
 such matters is referred to the court. Where 
 special pleading prevails, it is a rule that mat- 
 ter of law must be pleaded specially. The 
 phrase here means matter which, if estab- 
 lished as true, goes to defeat the plaintiff's 
 charges by the elEect of some rule of law, as 
 distinguished from that which operates as a 
 direct negative. 
 
 MATTER IN PAIS (literally, matter in 
 the country). Matter of fact, as distinguished 
 from matter of law or matter of record. 
 
 MATTER OF RECORD. Those facts 
 which may be proved by the production of a 
 record. It differs from matter in deed, wliich 
 consists of facts which may be proved by 
 specialty. 
 
 MATURITY. The time when a bill or 
 note becomes due. In order to bind the in- 
 dorsers, such note or bill must be protested, 
 when not paid, on the last day of grace. See 
 Days of Grace. 
 
 MAXIM. An established principle or 
 proposition. A principle of law universally 
 admitted, as being just and consonant with 
 reason. 
 
 Coke defines a maxim to be " conclusion of 
 reason," and says that it is so called "quia 
 maxima ejus dignitas et certissima auctori- 
 tas, et quod maxime omnibus probet^r." 
 Co. Litt. 11a. He says in another place: 
 "A maxime is a proposition to be of all men 
 confessed and granted without proofe, argu- 
 ment, or discourse." Id. 67 a. 
 
 Maxims in law are somewhat like axioms 
 in geometry. 1 Bla. Com. 68. They are 
 principles and authorities, and part of the 
 general customs or common law of the land, 
 and are of the same strength as acts of par- 
 liament, when the judges have determined 
 what is a maxim. This determination be- 
 longs to the court and not the jury. Termes 
 de la Ley; Doct. & Stud. Dial. 1, c. 8. 
 Maxims of the law are holden for law, and 
 all other cases that may be applied to them 
 shall be taken for granted ; Co. Litt. 11, 67. 
 See Plowd. 27 6. 
 
 The alteration of any of the maxims of the 
 common law is dangerous; 2 Inst. 210. 
 
 The application of the maxim to the case 
 before the court is generally the only diffi- 
 culty. The true method of making the ap- 
 plication is to ascertain how the maxim arose, 
 and to consider whether the case to which it 
 is applied is of the same character, or whether 
 it is an exception to an apparently general 
 rule. This requires extended discussion, 
 which it has received (so far as the more im- 
 portant maxims are concerned) in the able 
 treatise on Legal Maxims by Broom. 
 
 As to books on the subject : Noy's Treatise 
 of the Principal Grounds and Maxims of the 
 Law was first published in 1641 ; Wingate's 
 Maxims of Reasons, or the Reason of the 
 Common Law of England, appeared in 1658; 
 and Heath's Maxims and Rules of Pleadings 
 in 1694. Then followed Lord Bacon's Max- 
 ims, and, subsequently, Francis' Maxims ^of 
 Equity. To these may be added Grounds and 
 Rudiments ofthe Law, the collection of maxims 
 appended to Lofiflt's Reports and Halkerton's 
 Maxims. In 1753, appeared Branch's Prin- 
 cipia Legis et Equitatis, an alphabetical col- 
 lection of maxims, principiiBs, definitions, etc. 
 Broom's Maxims is undoubtedly the most 
 valuable and useful work on the subject, bnt 
 he treats of comparatively few maxims. To 
 this list we may add Trayner's Maxims, pub- 
 lished in Edinburgh in 1876, and Peloubet's 
 Maxims, published in New York in 1880, and 
 a Digest of the Maxims, etc., of the Coin; 
 mon ^^aw, by J. S. Barton, which has been 
 promised to the profession. See an article by 
 Judge Cooper in 15 W^est. Jur. 837. 
 
 The following list comprises, it is believed, 
 every legal maxim, properly so called, to- 
 gether with some that are in reality nothing 
 more than legal phrases, accompanied by a 
 translation, and, in most cases, a reference to 
 one or more authorities which are intended to 
 
MAXIM 
 
 169 
 
 MAXIM 
 
 show the origin and true application of the 
 rule. (Reference is made to the seventh 
 American edition of Broom's Maxims.) 
 
 A ammimi dburvantia non est recedendum. 
 There should be no departure from common ob- 
 servance (or usage). Co. Litt. 186 ; Wing. Max. 
 203 ; 2 Co. 74. 
 
 A. digniori fieri debet denominatio et resolutio. 
 The denomination and explanation ought to be 
 derived from the more worthy. Wing. Max. 265 ; 
 Fleta, lib. 4, c. 10, § 12. 
 
 A Vimpossible nul n'est Unu. No one is bound 
 to do what is Impossible. 
 
 A non posse ad non esse tequitur argumentum 
 necessarie negative, licet non afflrmative. From 
 impossibility to non-existence the inference fol- 
 lows necessarily in the negative, though not in 
 the affirmative. Hob. 336. 
 
 A piratis out latronibus eapti liberi permanent. 
 Those captured by pirates or robbers remain free. 
 Dig. 49. 15. 19. 3 ; Grot. lib. 3, c. 3, s. 1. 
 
 A piratis et latronibus capta dominium non 
 mutant. Things captured by pirates or robbers 
 do not change their ownership. 1 Kent, 108, 
 184 ; 2 Woodd. Lect. 2.58, 259. 
 
 A rescriptis valet argumentum. An argument 
 from rescripts (i. e. original writs in the regis- 
 ter) is valid. Co. Litt. 11 a. 
 
 A summo remedio ad inferiorem actionem non 
 Juibetur regressus neque auxilium. From the 
 highest remedy to an inferior action there is no 
 return or assistance. Fleta, lib. 6, c. 1 ; Brae. 
 104 a, 112 6; 3 Sharsw. Bla. Com. 193, 194. 
 
 A verbis Ugis non est recedendum. From the 
 words of the law there should be no departure. 
 Broom, Max. 632 ; Wing. Max. 25 ; 5 Co. 119. 
 
 Ab dbitsuadusum non valet consequentia. A con- 
 clusion as to the use of a thing from its abuse is 
 invalid. Broom, Max. xvii. 
 
 Ab assuetis non fit injuria. No iiyury is done 
 by things long acquiesced in. Jenk. Cent. In- 
 trod. vi. 
 
 Abbreviationum ille numerus et sensus accipien~ 
 dus estj ut concessio non sit inanis. Such number 
 and sense is to be given to abbreviations that the 
 grant may not fail. 9 Co. 48. 
 
 Absentem accipere debemus cum qui non est eo 
 loco in quo petitur. We must consider him ab- 
 sent who is not in that place in which he is 
 souffht. Dig. 50. 60. 199. 
 
 .^isentia ejus qui reipublicce causa dbest, neque ei 
 neque aliis damnosa esse debet. The absence of 
 him who is employed in the service of the state, 
 ought not to be prejudicial to him nor to others. 
 Dig. 50. 17. 140. 
 
 Absoluta sentenfia expos%tore non indiget. A 
 simple proposition needs no expositor. 2 Inst. 
 533. 
 
 Abmidans cautela non nocet. Abundant caution 
 does no harm. 11 Co. 6; Fleta, lib. 1, c. 28, § 1. 
 
 Accessorium non ducit sed aequitiir suum prvn,- 
 cipale. The accessory does not draw, but follows, 
 its principal. Co. Litt. 152 a, 389 a; 5 E. &B. 
 773; Broom, Max. 491: Lindl. Part. (3d ed.) 
 1036. 
 
 Accessorius sequUur naturam sui principalis. 
 An accessory follows the nature of his principal. 
 3 Inst. 139 ; 4 Bla. Com. 36 ; Broom, Max. 497. 
 
 Accipere quid ut justttiam facias, non eat tarn 
 accipere quam extorquere. To accept anything as 
 a reward for doing justice, is rather extorting 
 than accepting. Lofft, 72. 
 
 Accuaare nemo debet se, nixi coram Deo, No one 
 is obliged to accuse himself, unless before God, 
 Hardr. 139. 
 
 Accusator post rationabile tempvs non est audien- 
 due, nisi se bene de omissione excusaverit. An ac- 
 cuser is not to be heard after a reasonable time. 
 
 unless he excuse himself satisfactorily for the 
 omission. F. Moore, 817. 
 
 Acta exteriora indicant interiora secreta. Out- 
 ward acts indicate the inward intent. Broom, 
 Max. 301 ; 8 Co. 146 b. 
 
 Acta in unojudicis nonprobant in aliia nisi in- 
 ter easdem personas. Things done in one action 
 cannot be taken as evidence in another, unless it 
 be between the same parties. Trayner, Max. 11. 
 
 Actio non datur non damnificato. An action 
 is not given to one who is not injured. Jenk. 
 Cent. 69. 
 
 Actio nonfacit reum, nisi mens sit rea. An ac- 
 tion does not make one guilty, unless the inten- 
 tion be bad. Lofit, 37. See Actus non, etc. 
 
 Actio personalis moritur cum persona. A per- 
 sonal action dies with the person. Noy, Max. 
 14 ; Broom, Max. 904 et seq. ; 13 Mass. 455 ; 1 
 Pick. 73, 78 ; 21 Pick. 252. See Actio Pebson- 
 
 ALIS. 
 
 Actio qucelibet it sua via. Every action proceeds 
 in its own course. Jenk. Cent. 77. 
 
 Actionum genera maxime sunt servanda. The 
 kinds of actions are especially to be preserved. 
 LoflEt, 460. 
 
 Actor qui contra regulam quid adduxit, non est 
 audiendus. A pleader ought not to be heard who 
 advances a proposition contrary to the rules of 
 law. 
 
 Actor sequitur forum rei. The plaintiff must 
 follow the forum of the thing in dispute. Home, 
 Law Tr. 232 ; Story, Confl. L. § 325, k ; 2 Kent, 
 462. 
 
 Adore non probante reus absolvttwr. If the 
 plaintiff does not prove his case, the defendant is 
 absolved. Hob. 103. 
 
 Actori incumMt prdbatio. The burden of proof 
 lies on the plaintiff. Hob. 103. 
 
 Acts indicate the intention. 8 Co. 146 b ; Broom, 
 Max. 301. 
 
 Actus curies neminem gravdbit. An act of the 
 court shall prejudice no man. Jenk. Cent. 118 ; 
 Broom, Max. 122 ; 1 Str. 426 ; 1 8m. L. C. notes 
 to Cumber «s. Wane ; 12 C. B. 415. 
 
 Actus Dei nemini jfacit injuriam. The act of 
 God does wrong to no one (that is, no one is 
 responsible in damages for inevitable accidenta) . 
 3 Bla. Com. 122 ; Broom, Max. 330 ; 1 Co. 97 5; 
 5 id. 87 4,- Co. Litt. 306 a; i Taunt. 309 ; 1 
 Term, 33. See Act of God. 
 
 Actus inceptus cujus perfectio pendet ex volvmtate 
 partium, revocari potest ; si autem pendet ex volun- 
 tate tertia personce, vel ex contingenti, revocari non 
 potest. An act already begun, whose completion 
 depends upon the will of the parties, may be re- 
 called ; but if it depend on consent of a third 
 person, or on a contingency, it cannot be recalled. 
 Bacon, Max. Keg. 20. See Story, Ag. § 434. 
 
 Actus judiciarius coram, non fiedice irritus Jidbe* 
 tur ; de ministeriali autem a quocunque provenit 
 ratum esto. A judicial act before one not a judge 
 is void ; as to a ministerial act, from whomsoever 
 it proceeds, let it be valid. Lofft, 458. 
 
 Actus legis nemini est damnoaus. An act of the 
 law shall prejudice no man. 3d Inst. 387; 
 Broom, Max. 126; 11 Johns. 380; 3 Co. 87 a; 
 Co. Litt. 264 6 ; 5 Term, 381, 385 ; 1 Ld. Raym. 
 515; 3 H. Bla. 384, 334; 5 East, 147; 1 Prest. 
 Abs. of Tit. 346; 6 Bacon, Abr. 559. 
 
 Actus legis nemini facit injuriam. The act of 
 the law does no one wrong. Broom, Max. 137, 
 409; 2 Bla. Com. 133. 
 
 Actus legitimi non recipiunt modum. Acts re- 
 quired by law admit of no qualification. Hob. 
 153; Branch, Pr. 
 
 Actua me invito factua, non est meua actua. An 
 act done by me against my will is not my act. 
 Brae. 101 h. 
 
 Actua non rewm facit niai mens rea. An act does 
 
MAXIM 
 
 170 
 
 MAXIM 
 
 not make a person guilty unless his Intention be 
 guilty also. (This maxim applies only in crimi- 
 nal cases ; in civil matters it is otherwise.) 
 Broom, Max. 306, 367, 807, n. ; 7 Term, 514 ; 8 
 Bingh. N. o. 34, 468; 5 M. & G. 639; 3 C. B. 
 339 ; 5 id. 380 ; 9 CI. & F. 531 ; 4 N. T. 159, 1^, 
 19S; 3B0UV. Inst. n. 3211 ; L. R. 3 C. C. K. 160 
 {a very full case) . 
 
 Actus repiignus rum potest in esse prodiiei. A 
 repugnant act cannot be brought into being (i.e. 
 cannot be made effectual). Plowd. 355. 
 
 Actus servi inliis quitms opera ejus communiter 
 adhiUta est, actus dmiini habetur. The act of a 
 servant in those things in which he is usually em- 
 ployed, is considered the act of his master. 
 Lofft, 237. 
 
 Adea quce frequentius accidimt jura adaptarUur. 
 The laws are adapted to those cases which occur 
 more frequently. 2 Inst. 137 ; Wing. Max. 316 ; 
 Dig. 1. 3. 3 ; 19 How. St. Tr. 1061 ; 3 B. & C. 
 178, 183 : 2 C. & J. 108 ; 7 M. & W. 599, 600 ; 
 Vaugh. 373 ; 6 Co. 77 a ; 11 Exch. 476 ; 13 How. 
 313 ; 7 Allen, 227 ; Broom, Max. 43, 44. 
 
 Ad offlclum justieiariorum spectat, unieuique co- 
 ram eis placitanti justitiam exhibere. It is the duty 
 of justices to administer justice to every one 
 pleading before them. 3 Inst. 451. 
 
 Adproximum antecedens fiat relatio, nisi impedi- 
 atur sententia. A relative is to be referred to the 
 next antecedent, unless the sense would be there- 
 by impaired. Broom, Max. 680 ; Noy, Max. 9th 
 ed. 4 ; 3 Exch. 479 ; 17 Q. B. 833 ; 2 H. & N. 
 625 ; 3 Bingh. N. c. 217 ; 13 How. 143. 
 
 Ad qucestiones legis judices, et non juratores, re- 
 spondent. Judges, and not jurors, respond to 
 questions of law. 7 Mass. 379. 
 
 Ad questiones faeti non respondent judices ; ad 
 questiones legis non respondent juratores. The 
 judges do not answer to questions of fact ; the 
 jury do not answer to questions of law. Co. 
 Litt. 295 ; 8 Co. 155 a ; Vaugh. 149 ; 5 Gray, 311, 
 819, 390 ; Broom, Max. 103. 
 
 Ad reete doeendum oportet, primum inquirere 
 nomima, quia rerum cognitio a nominibus rerum 
 dependet. In order rightly to comprehend a 
 thing, inquire first into the names, for a right 
 knowledge of things depends upon their names. 
 Co. Lltt. 68. 
 
 Ad tristem partem strenua est suspicio. Suspi- 
 cion rests strongly on the unfortunate side. Tay- 
 lor, 4. 
 
 Ad vim, majorem vel ad casus fortuitos non tene- 
 tur quis, nisi sua culpa intervenerit. No one Is 
 held to answer for the effects of a superior force, 
 or of accidents, unless his own fault has contrib- 
 uted. Fleta, lib. 8, c. 72, § 16. 
 
 Additio probat minoritatem. An addition proves 
 inferiority. 4 Inst. 80 ; Wing. Max. 211, max. 
 60 ; Littleton, § 293 ; Co. Litt. 189 a. 
 
 ARjuvariquippenos, nondecipi, beneflcio oportet. 
 For we ought to be helped by a benefit, not de- 
 stroyed by it. Dig. 13. 6, 17. 3 ; Broom, Max. 
 393. 
 
 ^difleare hi too propria solo non licet quod al- 
 terl noeeat. It is not lawful to build upon one's 
 own land what may be injurious to another. 3 
 Inst. 301 ; Broom, Max. 369. 
 
 ^diflcatum Solo, solo cedit. That which is built 
 upon the land goes with the land. Co. Litt. 4 
 a ; Inst. ^. 1. 89 ; Dig. 47. 3. 1. 
 
 .^d'yieia solo cedunt. Buildings pass by a grant 
 of the land. Fleta, lib. 3, c. 8, § 13. 
 
 ^quior est dispositio legis quam hominis. The 
 disposition of the law is more impartial than that 
 of man. 8 Go. 152 a. 
 
 ^quitas agtt in personam. Equity acts upon 
 the person. 4 Bouv. Inst. n. 3733. 
 
 ^quitas est correctio legit generaliter latce qua 
 parte d^/icit. Equity is the correction of law, 
 
 when too general, in the part in which it is de- 
 fective. Plowd. 375. 
 
 ySquitas ignorantiae opitulatur, oscitantiae ncm 
 item. Equity assists ignorance, but not careless- 
 ness. 
 
 ^quitaa non 'faeit jus, sed juri auxUiatur. 
 Equity does not make law, but assists law 
 Lofit, 379. 
 
 JEquitas nunquam contravarit legem. Equity 
 never contradicts the law. 
 
 ^quUas sequitur legem. Equity follows the 
 law. 1 Story, Eq. Jur. § 64 ; 3 Woodd. Lect. 
 479, 482; Branch, Max. 8; 3 Bla. Com. 330' 
 Glib. 136 ; 8 Eden, 316 ; 10 Mod. 3 ; 15 How. 
 899 ; 7 Allen, 503 ; 5 Barb. 377, 283. 
 
 JEquitas supervacua odit. Equity abhors su- 
 perfluous things. Loflt, 282. 
 
 ^quum et bonum, est lex legvim. What is just 
 and right is the law of laws. Hob. 224. 
 
 ^stimatio prceteriti delicti ex postremo facto 
 nonquam crescit. The estimation of a crime 
 committed never increases from a subsequent 
 fact. Bacon, Max. Reg. 8 ; Dig. 50. 17. 139. 
 
 Affeetio tua nomen imponit operi tuo. Tour 
 motive gives a name to your act. Bract. 2 b, 
 1016. 
 
 Affectus pwnitur licet non sequitur pectus. The 
 intention Is punished although the consequence 
 do not follow. 9 Co. 57 a. 
 
 Afflnis mei afflnis non est mihi afflnis. A con- 
 nection (i. e. by marriage) of my connection is 
 not a connection of mine. Shelf. Man. & D. 
 174. 
 
 Affirmanti, non neganti, incumbit probatio. 
 The proof lies upon him who affirms, not on him 
 who denies. See Phlll. Ev. 493. 
 
 Affirmantis est probare. He who affirms must 
 prove. 9 Cush. 535. 
 
 Agenies et consentientes, pari poena pUiAentur. 
 Acting and consenting parties are liable to the 
 same punishment. 5 Co. 80 a. 
 
 Aliena negotia exacto officio gemntur. The 
 business of another is to be conducted with par- 
 ticular attention. Jon. Bailm. 83 ; 79 Penn. 118. 
 Alienatio licet prohibeatur, conserisu tamen onir 
 niv/m, in quorum, favorem, prohibita est, potest 
 fieri, et quilibet potest renunciare juri pro se intro- 
 ducto. Although alienation be prohibited, yet, 
 by the consent of all In whose favor it is pro- 
 hibited, it may take place, for it is in the power 
 of any man to renounce a right introduced for 
 his own benefit. Co. Litt. 98 ; 9 N. T. 291. 
 
 Alienatio rei praferturjuri accrescendi. Aliena- 
 tion is favored by the law rather than accumula- 
 tion. Co. Lltt. 185 a, 381 a, note ; Broom, Max. 
 443, 458 ; Wright, Tenures, 154 et seq. ; 1 Cruise, 
 Dig. 4th ed. 77, 78. 
 
 Alienation pending a suit is void. 2 P. Wms, 
 488; 8 Atk. 174; 3 id. 398; 11 Ves. 194; 1 
 Johns. Ch. 566, 580. See Lis Pendens, 
 
 Aliqiiid conceditur ne injuria remaneat impunita, 
 quod alias nmi concederetur. Something is con- 
 ceded lest a wrong should remain unpunished 
 which otherwise would not be conceded. Co. 
 Lltt. 197. 
 
 Aliquis non debet esse judex in propria cauiee, 
 quia non potest esse judex et pars. A person ought 
 not to be judge in his own cause, because he 
 cannot act both as judge and party. Co. Litt. 
 141 a; Broom. Max. 117 ; Littleton, § 313; 13 
 Q. B. 387 ; 17 id. 1 ; 15 C. B. 769 ; 1 C. B. u. 8. 
 389. See Jxjdge. 
 
 Aliud est celare, aHiud tacere. To conceal Is one 
 thing, to be silent another. 8 Burr. 1910. See 
 8 WTieat. 176 ; 9 id. 631 ; 3 Bingh. 77 ; 4 Taunt. 
 S51 ; 2 C. & P. 841 ; 18 Pick. 430 , 22 id. 53 ; 13 
 Cush. 425 ; Broom, Max. 783. 
 
 Aliud est distinctio, aliud aeparatio. Distinc- 
 tion Is one thing, separation another. Bacons 
 
MAXIM 
 
 171 
 
 MAXIM 
 
 arg. Case of Poetnati of Scotland, Works, Iv. 
 851. 
 
 AUud est poesidere, aliud esse in possessione. It 
 1b one thing to possess, it is another to be in pos- 
 session. Hob. 163 ; Bract. 206. 
 
 Aliud est vendere, dliud vendenti consentire. To 
 sell is one thing, to give consent to him who sells 
 another. Dig. 50. 17. 160. 
 
 Allegans eontraria non est audiendus. One 
 making contradictory allegations is not to be 
 heard. Jenk. Cent. 16 ; Broom, Max. 169, 294 ; 
 4 Term, 211 ; 3 Exch. 446, 527, 678 ; 4 id. 187 ; 11 
 id. 493 ; 3 E. & B. 363; 5 id. 502; 5 C. B. 195, 
 886 ; 10 Mass. 163 ; 70 Penn. 274 ;. 4 Inst. 279. 
 
 Allegans stiam turpitudinem non est audiendus. 
 One alleging his own infamy is not to be heard. 
 4 Inst. 279 ; 2 Johns. Ch. N. Y. 339, 350. 
 
 Allegari non debet quod probaium non relevat. 
 That ought not to be alleged which, if proved, 
 would not be relevant. 1 Ch. Cas. 45. 
 
 Mterius circumventio alii non prcebet actionem. 
 Dig. SO. 17. 49. A deception practised upon one 
 person does not give a cause of action to another. 
 
 Alternativa petitio non est audienda. An alter- 
 native petition is not to be heard. 5 Co. 40 a. 
 
 Ambigiia responsio contra proferentem est aeci- 
 pienda. An ambiguous answer is to be taken 
 against the party who offers it. 10 Co. 59 a. 
 
 Amiiiguis easibits semper prcesumitur pro rege. 
 In doubtful cases the presumption is always in 
 favor of the king. 
 
 AinMguUas verborum latens verifleatione supple- 
 tur; nam quod ex facto' oritur ambiguum veriflea- 
 tione facti tollitur. A latent ambiguity may be 
 supplied by evidence ; for an ambiguity which 
 arises out of a fact may be removed by proof of 
 fact. Bacon, Max. Reg. 23 ; 8 Bingh. 247. See 
 
 1 Pow. Dev. 477 ; 2 Kent, 557 ; Broom, Max. 
 608 ; IS Pet. 97 ; 1 Gray, 138 ; 100 Mass. 60 ; 8 
 Johns. 90 ; 3 Halst. 71. 
 
 Arnbiguitas verborum patens nulla verifleatione 
 excluditur. A patent ambiguity is never holpen 
 by averment. Lofft, 249 ; Bacon, Max. 25 ; 21 
 Wend. 651, 659 ; 23 id. 71, 78 ; 1 Mas. 11 ; 1 
 Tex. 377, 383. 
 
 Ambiguum pladtum interpretari debet contra 
 proferentem. An ambiguous plea ought to be in- 
 terpreted against the party pleading it. Co. Lltt. 
 303 5; Broom, Max. 601 ; Bacon, Max. Beg. 3: 
 
 2 H. Bla. 531 ; 2 M. & W. 444. 
 
 Ambulaforia est voluntas defwncti usque ad vitce 
 siupremum exitum. The will of a deceased person 
 is ambulatory until the last moment of life. 
 Dig. 34. 4. 4 ; Broom, Max. 503 ; 2 Bla. Com. 
 502 ; Co. Litt. 832 6 ; 1 Vict. c. 26, s. 24 ; 3 E. & 
 B. 572 ; 1 M. & K. 485 ; 2 id. 73. 
 
 AnglicBjura in omni easu libertati dantfavorem. 
 The laws of England are favorable in every 
 ease to liberty. Halkers, Max. 13. 
 
 Animus ad se omne jus ducit. It is tothe in- 
 tention that all law applies. 
 
 Animus hominis est anlma scripti. The inten- 
 tion of the party is the soul of the instrument. 
 
 3 Bulstr. 67 ; Pitman, Princ. & Sur. 26. 
 AnnieiUus treeentesimo sexagesimo-quvnto die 
 
 dicitur, incipient^ plane non exacto die, quia an- 
 num dviliter non ad momenta temporum. sed ad 
 dies numeramur. We call a child a year old on 
 the three hundred and sixty-fifth day, when the 
 day is fairly begun but not ended, because we 
 calculate the civil year not bv moments, but by 
 days. Dig. 50. 16. 134 ; id. 132 ; Calvinus, Lex. 
 
 Annua nee debititm judex non separat ipse. 
 Even the judge divides not annuities or debt. 8 
 Co. 52. See Story, Eq. Jur. § § 480, 517 ; 1 Salk. 
 36, 65. 
 
 Annus est mora motus quo suum planeta pervoU 
 vat eireuhim. A year is the duration of the mo- 
 
 tion by which a planet revolves through Its orbit. 
 Dig. 40. 7. 4. 5 ; Calvinus, Lex. ; Bract. 359 b. 
 
 Annus inceptus pro completo habeiw. A year 
 begun is held as completed. Trayner, Max. 45. 
 
 Apices juris non stmt jura. Legal niceties are 
 not laws. Co. Litt. 304 ; 3 Scott, 773 ; 10 Co. 
 136 ; Broom, Max. 188. See Apex Jukis. 
 
 Applieatio est vita regulce. Application is the 
 life of a rule. 2 Bulstr. 79. 
 
 .iqua cedit solo. The grant of the soil carries 
 the water. Hale de Jur. Mar. pt. 1, c. 1. 
 
 Aqua currit et debet currere ut eurrere solebat. 
 Water runs and ought to run as it was wont to 
 run. 3 Eawle, 84, 88 ; 26 Penn. 413 ; 3 Kent, 
 439 ; Ang. Wat. Cour. 413 ; Gale & W. Easem. 
 182. 
 
 Arbitrimentwm cequum tribuit euique suum. A 
 just arbitration renders to every one his own. 
 Noy, Max. 248. 
 
 Arbitrium est judicium. An award is a judg- 
 ment. Jenk. Cent. 137 ; 3 Bulstr. 64. 
 
 Arbor, dum erescit ; lignum, dum crescere neseit. 
 A tree while it is growing ; wood when it cannot 
 grow. Cro. Jac. 166 ; 12 Johns. 239, 241. 
 * Argumentuma divisione est fortissimmn injwe. 
 An argument arising fVom a division is most 
 powerful in law. 6 Co. 60 a ; Co. Litt. 213 6. 
 
 Argumentwm a Tnajori ad minus negative non 
 valet ; valet e converse. An argument from the 
 greater to the less is of no force negatively ; con- 
 versely it is. Jenk. Cent. 281. 
 
 ArguTnentum a sim-ili valet in lege. An argu- 
 ment drawn from a similar case, or analogy, 
 avails in law. Co. Litt. 191. 
 
 Argumentum ab auctoritate est fortissimwn in . 
 lege. An argument drawn from authority is the 
 strongest in law. Co. Litt. 254. 
 
 Argumentum db impossibili plurimum valet in 
 lege. An argument deduced from Impossibility 
 greatly avails in law. Co. Litt. 93. 
 
 Argumentum ab inconvenienti est validum in 
 lege; quia lex non permittit aliquod ineonveniens. 
 An argument drawn from what is inconvenient 
 is good in law, because the law will not permit 
 any inconvenience. Co. Litt. 66 a, 358 ; 7 Taunt. 
 537 ; 3 B. & C. 131 ; 6 CI. & F. 671. See Brown, 
 Max. 184 ; Cooley, Const. Lira. 4th ed. 83-86. 
 
 Arm,a in armatos sumere jura sinun,t. The laws 
 permit the taking arms against the armed. 2 
 Inst. 574. 
 
 Armorun appellati&ne, non solum scuta et gladii 
 et gcdece, sed etfustes et lapides Continentur, Un- 
 der the name of arms are included not only 
 shields and swords and helmets, but also clubs 
 and stones. Co. Litt. 163. 
 
 Ass^natus utitur jure auctoris. An assignee is 
 clothed with the rights of his principal. Halkers, 
 Max. 14 ; Broom, Max. 465, 477 ; Wing. Max. p. 
 56 ; 1 Exch. 33 ; 18 Q. B. 878 ; Perkins, § 100. 
 
 Auetoritates philosophorwm, msdicorum,, et 
 poetarum, sunt in eausis allegandce et tenendce. 
 The opinions of philosophers, physicians, and 
 poets are to be alleged and received in causes. 
 Co. Litt. 264. 
 
 Ancupia verborum suntjudice indigna. Catch- 
 ing at words is unworthy of a judge. Hob. 343. 
 
 Audi alteram partem. Hear the other side (or 
 no man should be condemned unheard). Broom, 
 Max. 113 ; 46 N. T. 119 ; 1 Cush. 243. 
 
 AutTiority to execute a deed must be given by 
 deed, Comyn, Dig. Attorney (C 5) ; 4 Term, 
 313 ; 7 id. 207 ; 1 Holt, 141 ; 9 Wend. 68, 75 ; 5 
 Mass. 11 ; 5 Binn. 613. 
 
 Saratriam eommiitit qui propter pecuniam jus- 
 titiam baractat. He is guilty of barratry who for 
 money sells justice. Bell, Diet. (Barratry at 
 common law has a different signification. See 
 Babbatrt.) 
 
MAXIM 
 
 172 
 
 MAXIM 
 
 £astardus non potest habere hceredum nisi de 
 corpore suo legitime procreatum. A bastard can 
 have no heir unless it be one lawfully begotten 
 of his own body. Trayuer, Max. 51. 
 
 Bella parta cedunt reipublicce. Things acquired 
 In war go to the state. Cited 3 Russ. & M. 66 ; 
 1 Kent, 101 ; 5 C. Rob. 155, 163; 1 Gall. 558. 
 
 Senedicta est expositio quando res redimitur a 
 destructione. Blessed is the exposition when the 
 thing is saved from destruction. 4 Co. 26 6. 
 
 Benigne faciend(e sunt interpretationes charta- 
 rum, ut res magis valeal quam pereat ; et qucelibet 
 concessio fortissime contra donatorem interpre- 
 tanda est. Liberal interpretations are to be made 
 of deeds, so that more may stand than fall ; and 
 every grant is to be taken most strongly against 
 the grantor. 4 Mass. 134 ; 1 Sandf. Ch. 258, 
 268 ; compare id. 275, 277 ; 78 Penn. 219. 
 
 Benigne faciendce sunt interpretationes propter 
 Mmplieitatem laieorum, ut res magis valeat quam 
 pereat ; et verba intentioni, non e contra, debent in- 
 servire. Constructions should be liberal on ac- 
 count of the ignorance of the laity, so that the 
 subject-matter may avail rather than perish ; and 
 words must be subject to the intention, not 
 the intention to the words. Co. Litt. 36 a; 
 Broom, Max. 540,565,645; 11 Q. B. 853,856, 
 868, 870 ; 4 H. I.. Cas. 556 ; 3 Bla. Com. 379 ; 1 
 Bulstr. 175 ; 1 Whart. 315. 
 
 Benignior sententia, in verbis generalitms seu 
 dubiis est preferanda. The more favorable con- 
 struction is to be placed on general or doubtful 
 expressions. 4 Co. 15 ; Dig. 50. 17. 192. 1 ; 2 
 Kent, 5.57. 
 
 Benignius leges interpretanda sunt quo volitntas 
 earum conservetur. Laws are to be more favorably 
 interpreted, that their intent may be preserved. 
 Dig. 1. 3. 16. 
 
 Bis idem exigi bona fides non patitur, et in satis- 
 factionibus, non perm.ittifur ampUus fieri quam 
 semd factum, est. Good faith does not suffer the 
 same thing to be exacted twice ; and in making 
 satisfaction, it is not permitted that more should 
 be done after satisfaction is once made. 9 Co. 
 53 ; Dig. 50. 17. 57. 
 
 Bona fide possessor facit fructus consumptoe 
 sttos. By good faith a possessor makes the fruits 
 consumed his own. Trayner, Max. 57. 
 
 Bona fides exigit utquodconvenitfiMt. Good faith 
 demands that what is agreed upon shall be done. 
 Dig. 19. 20. 21 ; id. 19. 1. 50 ; id. 50. 8. 2. 13. 
 
 Bona fides non patitur ut bis idem exigatu/r. 
 Good faith does not allow us to demand twice 
 the payment of the same thing. Dig. 50. 17. 57 ; 
 Broom, Max. 338 n. ; 4 Johns. Ch. 143. 
 
 Bonce fidei possessor in id tantum quod ad se 
 pervenerit tenetur. A bona fide possessor is bound 
 for that only which has come to him. 2 Inst. 
 285 ; Gro. de J. B. lib. 2, c. 10, § 3 e« seq. 
 
 Boni judieis est ampliare jurisdictionem (^orjus- 
 titiam. See 1 Burr. 304). It is the part of a 
 good judge to enlarge his jurisdiction ; that is, 
 his remedial authority. Broom, Max. 79, 80, 83 ; 
 Chanc. Prec. 329 ; 1 Wils. 384 ; 9 M. & W. 818 ; 
 1 C. B. N. 8. 255 ; 4 Bingh. N. 0. 233 ; 4 Scotf, u. 
 B. 229 ; 17 Mass. 310. 
 
 Boni judieis est causas lUium dirimere. It is 
 the duty of a good judge to remove causes of 
 litigation. 2 Inst. 306. 
 
 Boni judieis est judicium sine dilatione mandare 
 exeeutioni. It is the duty of a good judge to 
 cause execution to issue on a judgment without 
 delay. Co. Litt. 389. 
 
 Boni judieis estUtes dirimere, ne lisex liteoritwr, 
 et interest reipublicce ut sint fines litium. It is the 
 duty of a good judge to prevent litigations, that 
 suit may not grow out of suit, and it concerns 
 the welfare of a state that an end be put to liti- 
 gation. 4 Co. 15 6; 5 id. 31 a. 
 
 Brnium defendentis ex integra causa, mdvm ex 
 quolibet defectu. The good of a defendant results 
 from a perfect case, his harm from any defect 
 whatever. 11 Co. 68 a. 
 
 Bonum necessarium extra terminos necessitatis 
 non est bonum. A thing good from necessity Is 
 not good beyond the limits of the necessity. Hob 
 144. 
 
 Bonus judex.iecundum cequum et bonum judical 
 et ceguitatem stricto juri praefert. A good judge 
 decides according to justice and right, and pre- 
 fers equity to strict law. Co. Litt. 24 ; 4 Term 
 344 ; 2 Q. B. 837 ; Broom, Max. 80. 
 
 Breve judieidle debet sequi suum originate, et ac- 
 cessorium suum principale. A judicial writ ought 
 to follow its original, and an accessory its princl- 
 pal. Jenk. Cent. 292. 
 
 Breve judieidle non cadit pro defectu forma. A 
 judicial writ fails not through defect of form. 
 Jenk. Cent. 43. 
 
 By an acquittance for the last payment aU othet 
 arrearages are discharged. Noy, 40. 
 
 Career ad homines custodiendos, non ad pu/nien- 
 dos, dari debet. A prison ought to be given to 
 the custody, not the punishment of persons. Co, 
 Litt. 260. See Dig. 48. 19. 8. 9. 
 
 Casus fortuit/us non est sperandus, et nemo tene- 
 tur divinare. A fortuitous event is not to be fore- 
 seen, and no person is held bound to divine it. i 
 C!o. 66. 
 
 (alms fortuity* non est supponendus. A for- 
 tuitous event is not to be presumed. Eardr. 83, 
 arg. 
 
 Casus omissus et oblivioni datus dispoiitioni 
 com/munis juris relinquitur. A case omitted and 
 forgotten is left to the disposal of the common 
 law. 5 Co. 37 ; Broom, Max. 46 ; 1 Exch. 476. 
 
 Casus omissus pro omisso habendus est. A case 
 omitted is to be held as (intentionally) omitted, 
 Trayner, Max. 67. 
 
 Catalla juste possessa amitta non possunt. Chat- 
 tels justly possessed cannot be lost. Jenk. Cent, 
 28. 
 
 Catalla reputantwr inter minima in lege. Chat- 
 tels are considered in law among the mmor 
 things. Jenk. Cent. 52. 
 
 Causa causes est causa causati. The canse of 
 a cause is the cause of the effect. Preem. 329 ; 
 13 Mod. 639. 
 
 Causa causantis, causa est causati. The cause 
 of the thing causing is the cause of the effect. 
 4 Campb. 384 ; 4 Gray, 398. 
 
 Causa ecclesice publicis cequiparatur ; et summa 
 est ratio quce pro religione facit. The cause of the 
 church is equal to public cause ; and paramount 
 is the reason which makes for religion. Co. Litt. 
 341. 
 
 Causa et origo est materia negotii. Cause and 
 origin is the material of business. 1 Co. 99 ; 
 Wing. Max. 41, Max. 21. 
 
 Causa proximo, non remota spectatur. The 
 immediate and not the remote cause is to he con- 
 sidered. Bacon, Max. Reg. 1 ; Broom, Max. 
 216, 219, 280 ; Story, Bailm. 515 ; S Kent, 374 ; 
 2 East, 348 ; 10 Wall. 191. See Causa Proxima, 
 
 Causa vaga et incerta non est causa ratUnuMii. 
 A vague and uncertain cause is not a reasonable 
 cause. 5 Co. 57. 
 
 Causa! dotis, vitce, libertatH, fisa sunt ii^ ' 
 favorabilia in lege. Causes of dower, life, 
 liberty, revenue, are among the things favored In 
 law. Co. Litt. .341. 
 
 Caveat emptor. Let the purchaser beware. See 
 Caveat Emptor. 
 
 Caveat emptor; qui ignorare non debult qM^ 
 jus alienum emit. Let a purchaser beware i for 
 he ought not to be ignorant of what they are 
 when he buys the rights of another. Hob. ^ i 
 
MAXIM 
 
 173 
 
 MAXIM 
 
 Broom, Max. 768 et seq. Oo. Litt. 102 a; 3 
 Taunt. 439 ; 1 Bouv. Inst. 383 ; Sugd. V. & P. 
 14th ed. 328 et seq. ; 1 Story, Eq. JTur. 9th ed. 
 oh. 6. 
 
 Caveat venditor. Let the seller beware. Lofft, 
 328 : 28 Wend. 449, 453 ; 23 id. 353 ; 2 Barb. 
 823; 5N.Y. 73,82. 
 
 Caveat viator. Let the wayfarer beware. 
 Broom, Max. 387 n. ; 10 Exch. 774. 
 
 Cavendum est a fragmentis. Beware of frag- 
 ments. Bacon, Aph. 26. 
 
 Certa debet esse intentiOj et narratio et certum 
 fundarnentum, et certa res quce deducitur in jwdi- 
 eium. The intention, count, foundation, and 
 thing brought to judgment, ought to be certain. 
 Co. Litt. 3U3 a. 
 
 Certum est qiiod certum reddi potest. That is 
 certain which can be made certain. Noy, Max. 
 481 ; Co. Litt. 4.5 6, 98 o, 142 a ; 2 Bla. Com. 
 143 : 2 M. & S. 50 ; Broom, Max. 623-4 ; 3 Term, 
 463 ; 4 Cruise, Dig. 4th ed. 269 ; 3 M. & K. 353 ; 
 U Cush. 380. 
 
 Cessante causa, cessat effectus. The cause ceas- 
 ing, the effect must cease. 1 Exch. 430 ; Broom, 
 Max. 160. 
 
 Cessante ratione legis cessat et ipsa lex. When 
 the reason of the law ceases, so does the law it- 
 self. 4 Co. 38 ; 7 id. 69 ; Co. Litt. 70 6, 122 a; 
 Broom, Max. 159, 161-2 ; 13 East, 348 ; 4Bingh. 
 ■s. 0. 388 ; 10 Mete. 175 ; 12 Gray, 170 ; 11 Penn. 
 873 ; 54 «. 201. 
 
 Cessante statu primitivo, cessat derivativus. The 
 primary state ceasing, the derivative ceases. 8 
 Co. 34 ; Broom, Max. 495 ; 4 Kent, 32. 
 
 Cest le crime qui fait la honte, et nonpas Vicha- 
 faud. It is the crime which causes the shame, 
 and not the scatfold. 
 
 Ceetwy que doit inheriter al pire doit inheriter 
 alflls. He who would have been heir to the 
 father of the deceased shall also be heir of the 
 son. Fitz. Abr. Descent, 2 ; 2 Bla. Com. 239, 
 250. 
 
 Chacea est ad communem legem. A chace is 
 by common law. Reg. Brev. 806. 
 
 Charta de non ente non valet. A charter or 
 deed of a thing not in being is not valid. Co. 
 Litt. 36. 
 
 Chartarum, super fidem, mortuis teatllms, adpa- 
 triam de necessitudine, recurrendum est. The 
 witnesses being dead, the truth of charters must, 
 of necessity, be referred to the country. Co. 
 Litt. 36. 
 
 Ohirographum apiid debUorem repertum pre- 
 tumitur solutum. An evidence of debt found in 
 possession of the debtor is presumed to be paid. 
 Halk. Max. 30. See 14 M. & W. 379. 
 
 Chirographum non extatis presumitur solutum. 
 An evidence of debt not existing is presumed to 
 have been discharged. Trayner, Max. 73. 
 
 Cireuitus est evitandiis. Circuity is to be avoid- 
 ed. Co. Litt. 3S4 a ; Wing. Max. 179: Broom, 
 Max. 343; 5 Co. 31a; 15 M. & W. 208: 5 
 Exch. 829. 
 
 Citatio est de juri naturali. A summons Is by 
 natural right. Cases in Banco Begis Will. III. 
 453. 
 
 Citationes non concedantur priusquam exprima- 
 tur super qua re fieri debet citatio. Citations 
 should not be granted before it is stated about 
 what matter the citation is to be made. (A 
 maxim of ecclesiastical law.) 12 Co. 44. 
 
 ClausvXa generalis de residuo Twn ea complectitur 
 quce noil ejuadem sint generis cum ii^ quce spedatim 
 dicta fuerant. A general clause of remainder 
 does not embrace those things which are not of 
 the same kind with those which had been spe- 
 cially mentioned. Lofft, 419. 
 
 Clausula generalis «o« refertur ad expressa. A 
 
 general clause does not refer to things expressed. 
 8 Co. 154. 
 
 Clausula quce abrogationem excludit ab initio 
 non valet. A clause in a law which precludes its 
 abrogation is invalid from the beginning. Ba- 
 con, Max. Keg. 19, p. 89 ; 2 Dwarris, Stat. 673 ; 
 Broom, Max. 27. 
 
 Clausula vel dispositio inutilis per prcesump- 
 tionem remotam vel eausam,, ex post facto non fid- 
 eitur. A useless clause or disposition is not sup- 
 ported by a remote presumption, or by a cause 
 arising afterwards. Bacon, Max. Keg. 21 ; 
 Broom, Max. 673. 
 
 ClausuUs inconsuetx semper induount ffuspicio- 
 nem. Unusual clauses always excite suspicion. 
 3 Co. 81 ; Broom, Max. 290. 
 
 Cogitationis peenam nemo patitur. No one is 
 punished for his thoughts. Broom, Max. 311. 
 
 Cohceredes una persona censentur, propter uni- 
 tatem juris quod habent. Coheirs are deemed as 
 one person, on account of the unity of right 
 which they possess. Co. Litt. 163. 
 
 CiymnierciwFii jure gentium commune esse debet, 
 et non in monopolium. et privatum paucorum quces^ 
 turn convertendum. Commerce, by the law of 
 nations, ought to be common, and not to be con- 
 verted into a monopoly and the private gain of a 
 few. 3 Inst. 181, in marg. 
 
 Comm^dtim ex injuria sua non habere debet. A 
 man ought not to derive any benefit from his 
 own wrong. Jenk. Cent. 161 ; Finch, Law, b. 1, 
 c. 3, n. 62. 
 
 Comm,on opinion is good autJiority in law. Co. 
 Litt. 186 a ; 3 Barb. Ch. 528, 577. 
 
 Commmis error facit jus. A common error 
 makes law. (What was at first illegal, being 
 repeated many times, is presumed to have ac- 
 quired the force of usage ; and then it would be 
 wrong to depart from it.) Broom, Max. 139, 
 140 ; Hill. K. P. 268 ; 1 Ld. Raym. 42 ; 6 CI. & F. 
 172 ; 3 M. & S. 396 ; 4 N. H. 458 ; 2 Mass. 357 ; 
 1 Dall. 13. The converse of this maxim is com- 
 munis error non facit jus. A comm on error does 
 not make law. 4 Inst. 242 ; 3 Term, 725 ; 6 id. 
 564. 
 
 Compendia sunt dispendia. Abridgments are 
 hindrances. Co. Litt. 305. 
 
 Compromissarii sunt judices. Arbitrators are 
 judges. Jenk. Cent. 138. 
 
 Compromissum ad similitudiTiem judiciorum 
 redigitur. A compromise is brought into affinity 
 with judgments. 9 Cush. 571. 
 
 Concessio per regem fieri debet de certitudine. A 
 grant by the king ought to be a grant of a, cer- 
 tainty. 9 Coke, is. 
 
 Concessio versus concedentem latam interpreta- 
 tionem habere debet. A grant ought to have a 
 liberal interpretation against the grantor. Jenk. 
 Cent. 279. 
 
 Concordare leges legibtts eit optimus interpre- 
 tandi modus. To make laws agree with laws is 
 the best mode of interpreting them. Halkers, 
 70. 
 
 Concordia parvce res cresctfnt et opulentia lites. 
 Small means increase by concord, and litiga^ 
 tions by opulence. 4 Inst. 74. 
 
 Conditio beneflcialis, quce statimi construit, be- 
 nigne, seetmdum verbonim intentionem est inter- 
 pretanda; odiosa antem, quce statum destruit, 
 stride, secundum verborum proprietatem, accipi- 
 enda. A beneficial condition, which creates an 
 estate, ought to be construed favorably accord- 
 ing to the intention of the words ; but an odious 
 condition, which destroys an estate, ought to be 
 received strictly, according to the letter of the 
 words. 8 Co. 90 ; Shep. Touch. 134. 
 
 Conditio dicitur, eum quid in camem incertum 
 qui potest tendere ad esse aut non esse, confertur. 
 It is called a condition when something is given 
 
MAXIM 
 
 174 
 
 MAXIM 
 
 on an uncertain event, which may or may not 
 come into existence. Co. Litt. 201. 
 
 Oonditw illicita habetur pro non adjeeta. An 
 unlawful condition is deemed as not annexed. 
 
 Conditio prcecedens adimpleri debet priusquam 
 sequatur effeetus. A condition precedent must 
 be fulfilled before the effect can follow. Co. 
 Litt. 301. 
 
 Conditiones qucelibet odiosce; maxime autem 
 contra matrimonium et eommercium. Any condi- 
 tions are odious, but especially those against 
 matrimony and commerce. Lofft, 644. 
 
 Confessio facta injvdicio omni probatione major 
 eat. A confession maxle in court is of greater 
 effect than any proof. Jenk. Cent. 103. 
 
 Confesms in judicio pro judicato habetur et 
 quodammodo sua sententia damnatur. A person 
 who has confessed in court is deemed as having 
 had judgment passed upon him, and, in a man- 
 ner, is condemned by his own sentence. 11 Co. 
 30. See Dig. 43. 3. 1. 
 
 Conflrmare est id qitod prius infirmum fuit 
 limul firmare. To confirm is to make firm what 
 was before infirm. Co. Litt. 395. 
 
 Conflrmare nemo potest priusquam jus ei acei- 
 derit. No one can confirm before the right ac- 
 crues to him. 10 Co. 48. 
 
 Conftrmatio est nuUa, ubi dotium prcecedens est 
 invalidum. A. confirmation is null where the 
 preceding gift is invalid. Co. Litt. 295; F. 
 Moore, 764. 
 
 Confirmatio omnes supplet defectus, licet id quod 
 actum est ab initio non iialuit. Confirmation sup- 
 plies all defects, though that which has been 
 done was not valid at the beginning. Co. Litt. 
 395 6. 
 
 Conflrmat usum qui tollit dbusum. He confirms 
 a use who removes an abuse. F. Moore, 764. 
 
 Conjv/nctio mariti et femince est de jure naturoe. 
 The union of husband and wife Is of the law of 
 nature. 
 
 Oonsensvx fadt legem. Consent makes the law. 
 (A contract is law between the parties agreeing 
 to be bound by it. ) Branch, Princ. 
 
 Consensus non coneubitus facit matrimonium. 
 Consent, not coition, constitutes marriage. Co. 
 Litt. 33 a ; Dig. 50. 17. 30. See 10 CI. & F. 534 : 
 1 Bouv. Inst. 103 ; Broom, Max. 505-6, 515. 
 
 Consensus tollit errorem. Consent removes or 
 obviates a mistake. Co. Litt. 126 ; 3 Inst. 123 ; 
 Broom, Max. 135-6, 138 ; 1 Bingh. N. c. 68 : 6 
 E. & B. 338 ; 5 Cush. 55 ; 9 Gray, 386 ; 11 Allen, 
 138 ; 7 Johns. 611 ; 4 Penn. 335 ; 65 id. 190. 
 
 Consensus voluntas multorum ad quos res perti- 
 net, simul juncta. Consent is the united will of 
 several interested in one subject-matter. Dav. 
 48 ; Branch, Princ. 
 
 ConscTttientes et agentes pari pcena plectentur. 
 Those consenting and those perpetrating shall re- 
 ceive the same punishment. 5 Co. 80. 
 
 Consentire matrimonio non possunt infra annos 
 nvMes. Persons cannot consent to marriage be- 
 fore marriageable years. 5 Co. 80 ; 6 id. 23. 
 
 ConsequentUe non est consequentia. A conse- 
 quence ought not to be drawn from another con- 
 sequence. Bacon, Aph. 16. 
 
 ConsUia multorum requiruntur in magnis. The 
 advice of many persons is requisite in great af- 
 fairs. 4 Inst. 1. 
 
 Conslitutum esse earn domum unicuiqtte nostrum 
 debere existimari, vM quisque sedes et tabidas ha- 
 beret, suarumqiie rerum eonstitutionem fecisset. It 
 is settled that that is to be considered the home 
 of each one of us where he may have his habita- 
 tion and account-books, and where he may have 
 made an establishment of his business. Dia;. 60. 
 16. 303. ^ 
 
 Constructio legit turn fadt injuriam. The con- 
 
 struction of law does not work an injury Cn 
 Litt. 183 ; Broom, Max. 603. 
 
 Consuetudo contra rationem introducta, potlia 
 usurpatio quam consuedo appellari debet. A cus- 
 tom introduced against reason ought rather toie 
 called an usurpation than a custom. Co. Litt 
 113. 
 
 Consuetudo debet esse certa. A custom ought 
 to be certain. Dav. 33. 
 
 Consuetudo est altera lex. Custom is another 
 law. 4 Co. 31. 
 
 Consuetudo est optimus interpret legum. Cus- 
 tom is the best expounder of the law. 2 Inst 
 18 ; Dig. 1. 3. 37 ; Jenk. Cent. 373. 
 
 Consuetudo debet esse certa, nam incerta pro 
 nullis habetur. Custom ought to be fixed, for if 
 variable it is held as of no account. Travner 
 Max. 96. ' 
 
 Consuetudo et communis assuetudo vincit legem 
 non seriptam, si sit epecialis; et interpretatwr 
 legem seriptam, si lex sit generalis. Custom and 
 common usage overcome the unwritten law, if 
 it be special ; and interpret the written law, if 
 the law be general. Jenk. Cent. 273. 
 
 Consuetudo ex certa causa rationabili usitatapri- 
 vat communem legem. Custom observed by rea- 
 son of a certain and reasonable cause supersedes 
 the common laws. Littleton, § 169 ; Co. Litt. 
 33 b. See Judgt. 5 Bingh. 393 : Broom, Max. 
 919. 
 
 Consuetudo, licet sit magnce auctoritatix, nvn- 
 quam, tamen prcejudicat manifestce veHtati. A 
 custom, though it be- of great authority, should 
 never, however, be prejudicial to manifest truth. 
 4 Co. 18. 
 
 Consuetudo loci observanda est. The custom of 
 the place is to be observed. Broom, Max. 918 ; 
 4 Co. 38 5 ; 6 id. 67 ; 10 id. 139 ; 4 C. B. 48. 
 
 Consuetudo negue injuria oriri, neque toUipoteit. 
 A custom can neither arise, nor be abolished, by 
 a wrong. Lofft, 340. 
 
 CoTisuetudo non habitur in conseqitentiam. Cus- 
 tom is not to be drawn into a precedent. 3 
 Keble, 499. 
 
 Consustudo prcescripta et legitima vincit legem, 
 A prescriptive and legitimate custom overcomes 
 the law. Co. Litt. 113. 
 
 Consuetudo regni Anglite est lex Anglice. The 
 custom of the kingdom of England is the law of 
 England. Jenk. Cent. 119. 
 
 Consuetudo semel reprobaia non potest ampiiiM 
 induci. Custom once disallowed cannot again be 
 produced. Dav. 33 ; Grounds & End. of Law, 53. 
 
 Consuetudo vincit communem legem. Custom 
 overrules common law. 1 Eop. H. & W. 851 : 
 Co. Litt. 33 b. 
 
 Consuetudo volentes ducit, lex nolentes trcMt. 
 Custom leads the willing, law drags the unwill- 
 ing. Jenk. Cent. 274. 
 
 Contemporanea expositio est optima etfortiitima 
 in lege. A contemporaneous exposition is the 
 best and most powerful in the law. 2 Inst. 11 ; 
 8 Co. 7 ; Broom, Max. 682. 
 
 Conte&tatio litis egit terminos contradictariat. 
 An issue requires terms of contradiction (that 
 is, there can be no issue without an afiirmative 
 on one side and a negative on the other). Jenk. 
 Cent. 117. 
 
 Contra legem facit qui id facit quod lex prohUM ; 
 infraudem vero qui, salvis verbis legis, sententiam 
 ejus circumvenit. He does contrary to the law 
 who does what the law prohibits ; he acts in 
 iVaud of the law who, the letter of the law being 
 Inviolate, uses the law contrary to its intention. 
 Dig. 1. 3. 39. 
 
 Contra negantem principta non est disputall^ 
 dum. There is no disputing against one who 
 denies principles. Co. Litt. 43; Grounds ifcKud, 
 of Law, 57. 
 
MAXIM 
 
 175 
 
 MAXIM 
 
 Contra non valentem agere nulla currit prcescrip- 
 tio. No prescription runs against a person un- 
 able to act. Broom, Max. 903 ; Evans, Pothier, 
 451. 
 
 Contra veritaiem lex nunquam aliqwid permittit. 
 The law never eufl'ers any thing contrary to truth. 
 2Inst. 253. (But sometimes it allows a conclusive 
 presumption in apposition to truth. See 3 Bouv. 
 Inst. n. 3061.) 
 
 ContracUis ex turpi causa, vel contra bonos 
 mores nullus est, A contract founded on a base, 
 and unlawful consideration, or against good 
 morals, is null. Hob. 167 ; Dig. 2. 14. 27. i. 
 
 Contracttts legem ex conventione accipiunt. The 
 agreement of the parties ihakes the law of the 
 contract. Dig. 16. 3. 1. 6. 
 
 Contrariorum contraria est ratio. The reason 
 of contrary things is contrary. Hob. '344. 
 
 Gontrectatio rei alienee animo furandi, est fur- 
 tum. The touching or removing of another's 
 property, with an intention of stealing, is theft. 
 Jenk. Cent. 132. 
 
 Conventio privatorum non potest publico juri 
 derogare. An agreement of private persons can- 
 not derogate from public right. Wing. Max. 
 201 ; Co. Litt. 166 a ; Dig. 50. 17. 45. 1. 
 
 Conventio vincU legem. The agreement of the 
 parties overcomes the law. Story, Ag. § 368 ; 
 6 Taunt. 430 ; 52 Penn. 96 ; 18 Pick. 19, 273 ; 8 
 Gush. 156 ; 14 Gray, 446. See Dig. 16. 3. 1. 6. 
 
 Copulatio verborum indicat acceptationem in 
 eodem sensu. Coupling words together shows 
 that they ought to' be understood in the same 
 sense. Bacon, Max. Reg. 3 ; Broom, Max. 588 ; 
 8 Allen, 85 ; 11 id. 470. 
 
 Corporalis injuria non recipit cestimationem de 
 faturo, A personal injury does not receive satis- 
 faction from a future course of proceeding. 
 Bacon, Max. Reg. 6 : 3 How. St. Tr. 71 : Broom, 
 Max. 278. 
 
 Corpus humanum non recipit isstimationem. A 
 human body is not susceptible of appraisement. 
 Hob. 59. 
 
 Creditorum appellatione non hi tantum accipiun- 
 tur qui pecuniam crediderunt, sed omnes quibus 
 ex qudlihet causa debetur. Under the l^ead of 
 creditors are included not alone those who have 
 lent money, but all to whom from any cause a 
 debt is owing. Dig. 50. 16. 11. 
 
 Crescente malitia crescere debet ei poma. Vice 
 increasing, punishment ought also to increase. 
 2 n. Inst. 479. 
 
 Crimen falsi dicitur, cum quis illiciter, cui non 
 fuerit ad hcec data auctoritas, de sigillo regis rapto 
 vel invenio brevia, cartasve consignaverit. The 
 crimen falsi is when any one illicitly, to whom 
 power has not been given for such purposes, has 
 signed writs or charters with the king's seal, 
 which he has either stolen or found. Fleta, 1. 
 1.C.23. 
 
 Crimen Itssce majestatis omnia alia crimina ex- 
 cedit quoad pomam. The crime of treason exceeds 
 all other crimes as far as its punishment is con- 
 cerned. 3 Inst. 310. 
 
 Crimen omnia ex se nata vitiat. Crime vitiates 
 eveiy thing which springs from it. 5 Hill, N.T. 
 533,531. 
 
 Crimen trahit personam. The crime carries the 
 person (i. e., the commission of a crime gives 
 the courts of the place where it is committed 
 jurisdiction over the person of the offender) . 8 
 Denio, 190, 210. 
 
 Crimina morte extinguuntur. Crimes are ex- 
 tinguished by death. 
 
 .Cui jurisdietio data est, ea quoque concessa esse 
 videntur sine quibus jurisdietio explieari non potest. 
 To whom jurisdiction is given, to him those 
 things also are held to be granted without which 
 
 the jurisdiction cannot be exercised. Dig. 2. 1. 
 2 ; 1 Woodd. Lect. Introd. Ixxi. ; 1 Kent, 339. 
 
 Cui jus est donandi, eidem et vendendi et conce- 
 dendi jus est. He who has a right to give has 
 also a right to sell and to grant. Dig. 50. 17. 163. 
 
 Cui licet quod majus non debet quod minus est 
 non licere. He who has authority to the more 
 important act shall not be debarred from doing 
 that of less importance. 4 Coke, 23 ; Co. Litt. 
 355 6 ; 2 Inst. 307 ; Noy, Max. 26 ; Finch, Law, 
 22 ; 3 Mod. 382, 392 ; Broom, Max. 176 ; Dig. 50. 
 70. 21. 
 
 Cui pater est populus non habet ille patrem. He 
 to whom the people is father has not a father. 
 Co. Litt. 123. 
 
 Cuicunqux aliquis quid concedit concedere videtur 
 ei id, sine quo res ipsa esse non potuit. Whoever 
 grants a thing is supposed also tacitly to grant 
 that without which the grant itself would be of 
 no'effect. 11 Coke, 52 ; Broom, Max. 479, 489 ; 
 Hob. 234; Vaugh. 109 ; 11 Exch. 775; Shep. 
 Touch. 89 ; Co. Litt. 56 a. 
 
 Cuicunque aliquid conceditur, conceditur etiam 
 ei id sine quo res ipsa non esse potuit. Whenever 
 anything is granted, that also is granted without 
 which the thing itself could not exist. 9 Mete. 556. 
 
 GuUibet in arte sua perito est credendum. Cre- 
 dence should be given to one skilled in his pecu- 
 liar art. Co. Litt. 125 ; 1 Bla. Com. 75 ; Phillips, 
 Ev. Cowen & H. notes, pt. 1, p. 759 ; 1 Hagg. 
 Ecc. 727 ; 11 CI. & F. 85 ; Broom, Max. 932, . 
 934. See Expert ; Opinion. 
 
 Cfuique in sua arte credendum est. Every one 
 is to be believed in his own art. 9 Mass. 237. 
 
 Cujus est c&mmodum ejus est onus. He who has; 
 the benefit has also the burden. 3 Mass. 53. 
 
 Cujits est dare ejiis est disponere. He who has 
 a right to give has the right to dispose of the 
 
 rft. Wing. Max. 22 ; Broom, Max. 459 ei seq, ; 
 Co. 71.; 6W. & S. 330. 
 
 Cujus est divisio alterius est electio. Which- 
 ever of two parties has the division, the other has 
 the choice. Co. Litt. 166. 
 
 Cujus est dominium ejus est pericidum. The 
 risk lies upon the owner of the subject. Tray- 
 ner, Max. 114. 
 
 Cujus est instituere ejus est abrogare. Whose it 
 is to institute, his it is also to abrogate. Sydney, 
 Gov. 15 ; Broom, Max. 878, n. 
 
 Cujus est solum ejus est usque ad caelum. He 
 who owns the soil owns it up to the sky. Broom, 
 Max. 395 et seq. ; Shep. Touch. 90 ; 2 Bouv. Inst, 
 nn. 15, 70 ; 2 Sharsw. Bla. Com. 18 ; 9 Co. 54 ; 
 4 Campb. 219 ; 11 Exch. 832 ; 6 E. & B. 76 ; 2 
 Mete. 467 ; 11 id. 455 ; 3 Gray, 79 ; 10 Allen, 109. 
 
 Cujux juris (i. e. jurisdictionis) est principale, 
 ejusdem juris erit aceessorium. He who has juris- 
 diction of the principal has also of the accessory. 
 3 Inst. 493 ; Bract. 481. 
 
 Ci^us per errorem dati repetitio est, ejus eon- 
 sulto dati donatio est. That which, when given 
 through mistake, can be recovered back, when 
 given with knowledge of the facts, is a gift. 
 Dig. 50. 17. 53. • 
 
 Cujusque rei potissima pars principium est. The 
 principal part of every thing is the beginning. 
 Dig. 1. 2. 1 ; 10 Co. 49. 
 
 Culpa caret, qui scit, sed prohibere non potest. 
 He is clear of blame who knows but cannot pre- 
 vent. Dig. 50. 17. 50. 
 
 Culpa est immiscere se rei ad se non pertinenti. 
 It is a fault to meddle with what does not belong 
 to or does not concern you. Dig. 50. 17. 36 ; 3 
 Inst. 208. 
 
 Culpa lata dolo cequiparatur. Gross neglect is 
 equivalent to fraud. Dig. 11. 6. 1. 
 
 Culpa tenet suos auctores. A fault binds Its own 
 authors. Ersklne, Inst. b. 4, tit. 1, § 14 ; 6 Bell, 
 App. Cas. 539. 
 
MAXIM 
 
 176 
 
 MAXIM 
 
 Culpa poena par eeto. Let the punishment be 
 proportioned to the crime. Branch, Princ. 
 
 Oum actio fuerit mere eriminalis, inetUui poterit 
 db initio criminaliter vel eiviliter. When an ac- 
 tion is merely criminal, it can be instituted from 
 the beginning either criminally or ciyilly. Bract. 
 103. 
 
 Oum adsunt testimonia rerum, quid oput est ver- 
 bis f When the testimony of facts is present, 
 what need is there of words! 2 Bulstr. 53. 
 
 Cum aliquis rentmidaverit soeietati, solvitur so- 
 cietal. When any partner renounces the partner- 
 ship, the partnership is dissolved. Trayner, 
 Max. 118. 
 
 Cum eonfltente sponte mitius est agendum. One 
 making a voluntary confession is to be dealt with 
 more mercifully. 4 Inst. 66 ; Branch, Princ. 
 
 Cum de lucro duorum qucerilur miliar est causa 
 possidentis. When the question of gain lies be- 
 tween two, the cause of the possessor is the bet- 
 ter. Dig. 50. 17. 126. 
 
 Cum duo inter se pugtiantia reperiuntur m teHa- 
 msnto, ultimum ratum, est. When two things re- 
 pugnant to each other are found in a will, the 
 last is to be confirmed. Co. Litt. 112; Shep. 
 Tpuch. 451 ; Broom, Max. 583 ; 2 Jarm. Wills, 
 5th Am. ed. 44 ; 16 Johns. 146 ; 1 Phill. 536. 
 
 Cum in corpore dissentitur, apparet nullam esse 
 acceptionem. When there is a digagreement in 
 the substance, it appears that there Is no accept- 
 ance. 12 Allen, 44. 
 
 Cum in testamento ambigue aut etiam perperam 
 seriptum, est henigne interpretari^ et secundum id 
 quod credihUe est cogitalum credemdum est. When 
 an ambiguous or even an erroneous expression 
 occurs in a will, it should be construed liberally, 
 and in accordance with the testator's probable 
 meaning. Dig. 34. 5. 24 ; Broom, Max. 568 ; 3 
 Pothier, ad Pand. ed. 1819, 46. 
 
 Cum legitimce nuptia factce sunt, patrem liberi 
 sequuntur. Children born under a legitimate 
 marriage follow the condition of the father. 
 
 Cum par delictum est duorum,, semper oneratur 
 petitor, et melior habetur possessoris causa. Where 
 two parties are equally in fault, the claimant 
 always is at a disadvantage, and the party in po- 
 session has the better cause. Dig. 50. 17. 154 ; 
 Broom, Max. 720. 
 
 Curia parliamenti suis propriis legibus mibsistit. 
 The court of parliament is governed by its own 
 peculiar laws. 4 Inst. 50 : Broom, Max, 85 ; 12 
 C. B. 413, 414. 
 
 Curiosa et captiosa interpretatio in lege reproba- 
 tur. A curious and captious interpretation in 
 the law is to be reproved. 1 Bulstr. 6. 
 
 Currit tempus contra desides et sui juris con- 
 temptores. Time runs against the slothful and 
 those who neglect their rights. Bract. 100 b ; 
 Fleta, lib. 4 c. 5, § 12. 
 
 Cursus curiae est lex curice. The practice of the 
 court is the law of the court. 3 Bulstr. 53 ; 
 Broom, Max. 133, 135 ; 12 C. B. 414 ; 17 Q. B. 
 86 ; 8 Exch. 199 ; 2 M. & S. 25 ; 15 East, 226 ; 12 
 M. & W. 7 ; 4 My. & C. 635 ; 3 Scott, n. b. 599. 
 
 Custom, is the best interpreter of the lam, 4 
 Inst. 75 ; 2 Eden, 74 ; 5 Cra. 32 ; 1 S. & R. 106 : 
 a Barb. Ch. 232, 269 ; 3 id. 528, 577. 
 
 Custome serra prise stride. Custom must be 
 taken strictly. Jenk. Cent. 83. 
 
 Custos statum haredis in custodia existentis me- 
 liorem non deteriorem facere potest. A guardian 
 can make the estate of an heir living under his 
 guardianship better, not worse. 7 (S). 7. 
 
 Da tua dum tua sunt, post mortem tunc tua non 
 sunt. Give the things which are yours whilst 
 they are yours ; after death then they are not 
 yours. 3 Bulstr. IS. 
 
 iTea 
 
 It is given to the more worthy. 
 
 Dans et retinens, nihil dat. One who giyet 
 and yet retains does not give effectually, xrav 
 ner. Max. 129. ' 
 
 Datur digniori. 
 a Ventr. 268. 
 
 Defide et officio judi^As non recipitur qua8tio,ted 
 de sdentia sive sit error juris sivefacti. The bona 
 fides and honesty of purpose of a judge cannot be 
 questioned, but his decision may be impugned 
 for error either of law or of fact. Bacon, Maxi 
 ■Reg. 17; 5 Johns. 291 ; 9 id. 396; IN. T.45' 
 Broom, Max. 97. ' 
 
 J)e jure judices, de facto juratores, respondent. 
 The judges answer concerning the law, the jury 
 concerning the facts. See Co. Litt. 295 ; Broom, 
 Max. 99. 
 
 2)e majori et minori non variant jura. Con- 
 cerning greater and less laws do not vary. 3 
 Vern. 552. 
 
 De minimis non curat lex. The law does not 
 notice (or care for) trifling matters. Broom, 
 Max. 142 et seq. ; 2 Inst. 306 ; Hob. 88 ; 12 Pick. 
 549; 22 id. 298; 97 Mass. 83; 118 id. 175; 5 Hill, 
 N. Y. 170 ; 6 Penn. 472. 
 
 De morte hominis nvila est cunctatio longa. 
 When the death of a human being is concerned, 
 no delay is long. Co. Litt. 134. (When the 
 question is concerning the life or death of a man, 
 no delay is too long to admit of inquiring into 
 facts.) 
 
 De nomine propria non est curandum cum in 
 substantia non erretur ; quia nomina mutabilia 
 sunt, res autem immobiles. As to the proper 
 name, it is not to be regarded when one errs not 
 in substance ; because names are changeable, 
 but things are immutable. 6 Co. 66. 
 
 De non apparentibus et non existentibus eadem 
 est lex. The law is the same respecting things 
 which do not appear and things which do not 
 exist. 6 Ired. 61; 12 How. 253 ; 5 Co. 6; 6 
 Bingh. N. c. 453 ; 7 CI. & F. 873 ; 5 C. B. 53 ; 8 
 id. 286 ; 1 Term, 404 ; 4 Mass. 685 ; 8 id. 401 1 
 Broom, Max. 163, 166. 
 
 De nullo, quod est sua natura indiuisibile, et divi- 
 sionem non patitur, nullam, partem habebii vidua, 
 sed satisfadat ei ad valentiam. A widow, shall 
 have no part from that which in its own nature 
 is indivisible, and is not susceptible of division ; 
 but let [the heir] satisfy her with an equivalent. 
 Co. Litt. 32. 
 
 De nullo tenemento, quod tenetur adtermimim,jU 
 homagii, fit tamen inde fldelitatis sacramentum. In 
 no tenement which is held for a term of years ie 
 there an avail of homage ; but there is the oath 
 of fealty. Co. Litt. 67 6. 
 
 De simUilms ad similia eadem ratione proeeden- 
 dum est. From similars to similars we are to 
 proceed by the same rule. Branch, Princ. 
 
 De similibus idem est judicium. Concerning 
 similars the judgment is the same. 7 Co. 18. 
 
 Debet esse finis litium. There ought to be an 
 end of lawsuits. Jenk. Cent. 61. 
 
 Debet quis juri mbjacere ubi ddinquit. Every 
 one ought to be subject to the law of the place 
 where he offends. 3 Inst. 34 ; Finch, Law, 14, 
 36 ; Wing. Max. 113, 114 ; 3 Co. 331 ; 8 Scott, 
 N. B. 567. 
 
 Debet sua euique domiis esse perfugimn iB(i««i- 
 mum. Every man's house should be a perfectly 
 safe refuge. 12 Johns. 31, 54. 
 
 Debile fundamentum, fallit opus. Where there 
 is a weak foundation, the work falls. 2 Bouv. 
 Inst. n. 2068 ; Broom, Max. 180, 182. 
 
 Debita sequuntur personam debitorii. Deb's 
 follow the person of the debtor. Stoiy, Confl. 
 Laws, § 862 ; 8 Kent, 429 ; Halkers, Max. 18, 
 
 DMtor non prasumitur donare, A debtor a 
 
MAXIM 
 
 177 
 
 MAXIM 
 
 ngt presumed to make a gift. See 1 Kames, Eq. 
 212 ; Dig. 50. IB. 108 ; 1 P. Wms. 239. 
 
 I)eUtonimpactionibua,credUorumpetitioneetoUi 
 nee minui potest. The riglit of creditors to sue 
 cannot be talcen away or lessened by the con- 
 tracts of their debtors. Pothier, Obi. 108 ; 
 Broom, Max. 697. 
 
 Sebitum et contractus sunt nulUus loci. Debt 
 and contract are of no particular place. 7 Co. 
 61 ; 7 M. & G. 1019, n. 
 
 beceptis non decipientibus, jura subvenkmt. The 
 laws help persons who are deceived, not those 
 deceiving. Trayner, Max. 149. 
 
 Decipi quamfallere est tutius. It is safer to be 
 deceived than to deceive. LoflFt, 396. 
 
 Deflciente imo sanguine non potest esse hceres. 
 One blood being wanted, he cannot be heir. 3 
 Co. 41 ; Grounds & Rud. of Law, 77. 
 
 Delegata potestas non potest delegari. A dele- 
 gated authority cannot be delegated. Broom, 
 Max. 839; 2 Inst. 597 ; 5 Bingh. N. o. 310 ; 2 
 Bouv. Inst. n. 1300 ; Story, Ag. § 13 ; 11 How. 
 233 ; 15 Gray, 403. 
 
 Delegatus non potest delegare. A delegate (or 
 deputy) cannot appoint another. 2 Bouv. Inst, 
 n. 1936 ; Story, Ag. § 13 ; Broom, Max. 840, 842 : 
 9 Co. 77 ; 2 Scott, N. R. 509 : 12 M. & W. 712 ; 6 
 Exch. 1.56 ; 8 0. B. 627. 
 
 Belicatus debitor est odiomus in lege. A delicate 
 debtor is hateful in the law. 2 Bulstr. 148. 
 
 Delinquens per iram pravocatus puniri debet 
 mitius. A delinquent provoked by anger ought 
 to be punished more mildly. 3 Inst. 55. 
 
 Berivativa potestas non potest esse major primi- 
 tiva. The power which is derived cannot be 
 greater than that from which it is derived. Wing. 
 Max. 36 ; Einch, Law, b. 1, c. 3, p. 11. 
 
 Serogatur legi, cum pars detrahitur ; dhrogatur 
 legi, cum prorsus tollitur. To derogate from a 
 law is to take away part of it ; to abrogate a law 
 is to abolish it entirely. Dig. 50. 16. 102. See 1 
 Bouv. Inst. n. 91. 
 
 JOesignatio unius est exclusio alterius^ et expres- 
 sum facit eessare taciturn. The appointment or 
 designation of one is the exclusion of another ; 
 and that expressed makes that which is implied 
 to cease. Co. Litt. 210. 
 
 Deus solus hieredem facere potest, non homo. 
 God alone, and not man, can make an heir. Co. 
 Litt. 7 6 ; cited 5 B. & C. 440, 454 : Broom, Max. 
 516. 
 
 Dies dominicus non est juridicus. Sunday is not 
 a day in law. Co. Litt. 135 o ; 2 Saund. 291 ; 
 Broom, Max. 21 ; Finch, Law, 7 ; Noy, Max. 2 : 
 Plowd. 265 ; 3 D. & L. 328 ; 13 Mass. 327 ; 17 
 Pick. 109. See Sundat. 
 
 Dies inceptus pro completo hahetur. A day be- 
 gun is held as complete. 118 Mass. 505. 
 
 Dies in.certv.s pro conditione kdbetur. A day un- 
 certain is held as a condition. Bell, Diet. Com- 
 putation of Time. 
 
 Dilationes in lege sunt odiosce. Delays in law 
 are odious. Branch, Princ. 
 
 Discretio est discernere per legem quid sit jus- 
 tum. Discretion is to discern through law what 
 is just. 5 Co. 99, 100 ; 10 id. 140 ; Broom, Max. 
 84 n. ; Inst. 41 ; 1 W. Bla. 152 ; 1 Burr. 570 : 3 
 Bulstr. 128 ; 6 Q. B. 700 ; 5 Gray, 204. 
 
 Discretio est scire per legem quid sit juatum. 
 Discretion consists in knowing what ia just in 
 law. 4 Johns. Ch. 352, 356. 
 
 Disparata non debent jungi. Dissimilar things 
 ought not to be joined. Jenk. Cent. 24. 
 
 Dispensatio est vulnus, quod vulnerat jus com- 
 mune. A dispensation is a wound, because it 
 wounds a common right. Dav. 69 ; Branch, 
 Princ. 
 
 Disseisinam satis facit, qui uti non permittit pos- 
 sessorem, vet minus commode, licet omnino non ex- 
 
 Vot. II.— 12 
 
 pellat. He makes disseisin eno%h who does not 
 permit the possessor to enjoy, or makes his en- 
 joyment less commodious, although he does not 
 expel altogether. Co. Litt. 331 ; Bract, lib. 4, 
 tr. 2. 
 
 Dissimiliiim dissimilis est ratio. Of dissimilars 
 the rule is dissimilar. Co. Litt. 191 a. 
 
 Dissimulatione tollitur injuria. Wrong is wiped 
 out by reconciliation. Erskiue, Inst. b. 4, tit. 4, 
 § 108. 
 
 Distinguenda sunt tempora. The time is to be 
 considered. 1 Co. 16 a ; 2 Pick. 327 : 14 N. Y. 
 380,393. 
 
 Distinguenda sunt tempora ; aliud est facere, 
 dliud perflcere. Times must be distinguished ; it 
 is one thing to do a thing, another to complete it. 
 3 Leon. 243 ; Branch, Princ. 
 
 Distinguenda sunt tempora ; distingue tempora, 
 et coneordabis leges. Times are to be distinguished ; 
 distinguish times, and you will attune laws. 1 
 Co. 24. 
 
 Divinatio non interpretatio est, quce omnino re- 
 cedit a litera. It is a guess, not interpretation, 
 which altogether departs from the letter. Bacon, 
 Max. Reg. 3, p. 47. 
 
 Dolosus versatur in generalibus. A deceiver 
 deals in generals. 2 Co. 34 ; 2 Bulstr. 226 ; Lofffc, 
 782; 1 RoUe, 157; Wing. Max. 636; Broom, 
 Max. 289. 
 
 Dolum ex indiciis perspicuis probari convenit. 
 Fraud should be proved by clear tokens. Code, 
 2. 21. 6 ; 1 Story, Contr. § 635. 
 
 Dolus auctoris non nocet successori. The fraud 
 of a predecessor does not prejudice the successor. 
 
 Dolus circuitu ' non purgatur. Fraud is not 
 purged by circuity. Bacon, Max. Reg. 1 ; Noy, 
 Max. 9, 12; Broom, Max. 228 ; 6 E. & B. 948. 
 
 Doliis etfraus nemini patrodnentur (patrocinari 
 debent). Deceit and fraud shall excuse or bene- 
 fit no man (they themselves need to be excused). 
 Year B. 14 Hen. VIII. 8 ; Story, Eq. Jur. § 395; 
 3 Co. 78 ; 2 Fonblanque, Eq. b. 2, ch. 6, § 3. 
 
 Dolus latet in generalUius. Fraud lurks in gen- 
 eralities. Trayner, Max, 162. 
 
 Dolus versatur in generalibus. Fraud deals in 
 generalities. Trayner, Max. 162. 
 
 Dom.imum non potest esse in pendenti. The 
 right of property cannot be in abeyance. 
 Halkers, Max. 39. 
 
 Domus SMO cuique est tutissimum refugium. 
 Every man's house is his castle. 5 Co. 91, 92 ; 
 Dig. 2. 14. 18 ; Broom, Max. 432 ; 1 Hale, PI. Cr. 
 481 ; Foster, Horn. 320 ; 8 Q. B. 757 ; 16 id. 546, 
 556 ; 19 How. St. Tr. 1030. See Abbest. 
 
 Domus tutissimum cuique refugium atque recepta- 
 culum. The habitation of each one is an invio- 
 lable asylum for him. Dig. 2. 4. 18. 
 
 Dona clandestiTia sunt semper suspiciosa. Clan- 
 destine gifts are always suspicious. 3 Co. -81 ; 
 Noy, Max. 9th ed. 152 ; 4 B. & C. 652 ; 1 M. & S. 
 253 ; Broom, Max. 289, 290. 
 
 Donari videtur quod nulli jure cogente concedi- 
 tur. That is considered to be given which is 
 granted when no law compels. Dig. 50. 17. 82. 
 
 Donatio non prcesumitur. A gift is not pre- 
 sumed. Jenk. Cent. 109. 
 
 Donatio perflcitur possessione aecipientis. A 
 gift is rendered complete by the possession of the 
 receiver. See 1 Bouv. Inst. n. 712; 2 Johns. 52; 
 2 Leigh, 837 ; 2 Kent, 438. 
 
 Donationum alia perfecia, alia incepta e^ non 
 perfecta; ut si donatio lectafuttet concessa, ac tra- 
 ditio nondumfuerit stibsecMa. Some gifts are per- 
 fect, others incipient and not perfect ; as if a gift 
 were read and agreed to, but delivery had not 
 then followed. Co. Litt. 56. 
 
 Donator nunquam desinit possidere antequam do- 
 natarius incipiat possidere. He that gives never 
 
MAXIM 
 
 178 
 
 MAXIM 
 
 ceases to posset until he that receives begins to 
 possess. Dyer, 881 ; Bract. 41 b. 
 
 Dormiimt aliquando leges, mmquam moriuntur. 
 The laws sometimes sleep, but never die. 2 Inst. 
 161. 
 
 Dos de dote peti non debet. Dower ought not 
 to be sought from dower. 4 Co. 122 ; Co. Lltt. 
 31 ; 4 Dane, Abr. 671 ; 1 Washb. K. P. 209 ; 13 
 Allen, 459. 
 
 Doti lex favet ; pramium pudoris est, idea par- 
 catur. The law favors dower ; it is the reward of 
 chastity, therefore let it be preserved.. Co. Litt. 
 31; Branch, Princ. 
 
 iiroit ne donepluis que soil demawnde. The law 
 gives no more than is demanded. 2 Inst. 286. 
 
 Droit ne poet pas morier. Right cannot die. 
 Jenk. Cent. 100. 
 
 Dftas uxores eodem tempore habere non potest. 
 It is not lawful to have two wives at one time. 
 Inst. 1. 10. 6; 1 Bla. Com. 486. 
 
 Duo non possunt in solido unmn rem possidere. 
 Two cannot possess one thing each in entirety. 
 Co. Litt. 368 ; 1 Preston, Abstr. 318 ; 2 id. 86, 
 326 ; 2 Dod. 157 ; 2 Carth. 76 ; Brooin, Max. 
 465, n. 
 
 Duo sunt instrumenta ad omnes res aut eonflr- 
 mandas aut impugnandas, ratio et auctoritas. 
 There are two Instruments for confirming or im- 
 pugning every thing, reason and authority. 8 
 Co. 16. 
 
 Duorum, in solidum dominium vel possessio esse 
 non potest. Ownership or possession in entirety 
 cannot he in two persons of the same thing. 
 Dig. 13, 6. 5. 15 ; 1 Mackeldey, Civ. Law, 245, 
 § 236 ; Brae. 28 6. 
 
 Duplieationem possibilitatis lex non patitur. The 
 law does not allow a duplication of possibility. 
 1 EoUe, 321. 
 
 Ea est accipienda interpretatio, quce vitlo caret. 
 That interpretation is to be received which is free 
 from fault. Bacon, Max. Reg. 3, p. 47. 
 
 Ea qua commendandi causa in vendUionUnis di- 
 citntur, si pdtam appareant venditorem non obli- 
 gant. Those things which, byway of commend- 
 ation, are stated at sales, if they are openly 
 apparent, do not bind the seller. Dig. 18. 43. 
 m ; Broom, Max. 783. 
 
 Ea qtue dari impossiWlia sunt, vel quce in rerum 
 natura non sunt, pro non adjectis Jmbentur. Those 
 things which cannot be given, or which are not 
 in existence, are held as not expressed. Dig. 50. 
 17. 135. 
 
 Ea quce raro accidunt, non temere in agendis ne~ 
 gotiis compiitantur. Those things which rarely 
 happen are not to be taken into account in the 
 transaction of business without sufficient reason. 
 Dig. 50. 17. 64. 
 
 Eadem est ratio, eadem est lex. The same rea- 
 son, the same law. 7 Pick. 493. 
 
 Eadem mens prmsumitur regis quce est juris et 
 qute esse debet, prcesertim in dublls. The mind of 
 the sovereign is presumed to be coincident with 
 that of the law, and with that which ought to 
 be, especially in ambiguous matters. Hob. 154 ; 
 Broom, Max. 54. 
 
 Ecelesia ecelesUe dedmas soVoere non debet. It 
 is not the duty of the church to pay tithes to 
 the church. Cro. Eliz. 479. 
 
 Ecelesia non moritur. The church does not 
 die. 2 Inst. 3. 
 
 Ecelesice magis fcmendmn est quam persontc. 
 The church is more to be favored than an indi- 
 vidual. Godb. 172. 
 
 Effect/as sequitur causam. The effect follows 
 the cause. Wing. Max. 226. 
 
 Ei ineurribit probatio qili dicit, non qui negat. 
 The burden of the proof lies upon him who af- 
 firms, not him who denies. Dig. 22. 8. 2 ; Tait. 
 
 Ev. 1; 1 Phill. Ev. 194; 1 Greenl. Ev. §74-3 
 La. 83 ; 3 Dan. Ch. Pr. 408 ; 4 Bouv. Inst, n 
 4411. 
 
 Ei nihil turpe, cui nihU satis. Nothing Is base 
 to whom nothing is sufficient. 4 Inst. 53. 
 
 Ejus est interpretari cn^us est condere. It be- 
 longs to him to interpret who enacts. Travner 
 Max. 174. ' ' 
 
 Ejus est non nolle qui potest velle. He may con- 
 sent tacitly who may consent expressly. Dis 50 
 17. 3. .- 6 ov. 
 
 Ejus estpericulum eujus est dominium aut com- 
 modum. He has the risk who has the right of 
 property or advantage. 
 
 Ejus nulla culpa mt cui parere necesse sit. No 
 guilt attaches to him who is compelled to obev 
 Dig. 50. 17. 169 ; Broom, Max. 12 n. 
 
 Electa una via, non datur recursus ad alteram. 
 He who has chosen one way cannot have re- 
 course to another. 10 Toull. n. 170. 
 
 Electio est intima [internal, libera, et spontanea 
 separatio unius rei db alia, sine compulsUme, con. 
 sistens in animo et voluntate. Election is an In- 
 ternal, free, and spontaneous separation of one 
 thing from another, without compulsion, coneiet- 
 ing in intention and will. Dyer, 281. 
 
 Electio semel facta, et placitum testatum, rum 
 patitur regressum. Election once made, and wish 
 Indicated, suffers not a^ recall. Co. Lltt. 146. 
 
 Electiones Jlant rite et libere siTie interruptvm 
 aliqua. Elections should be made in due form 
 and freely, without any interruption. 2 Inst. 
 169. 
 
 Emptor emit quam mimimo potest ; venditor ven- 
 dit quam. maxima potest. The buyer buys for as 
 little as possible ; the vender sells for as much aa 
 possible. 2 Johns. Ch. 256. ' 
 
 En eschange U covient que les estates soient Igales. 
 In an exchange it is necessary that the estates be 
 equal. Co. Lltt. 50 ; 2 Hill. R. P. 298. 
 
 Emimeratio infirmat regulam in casibus mm 
 enumeratis. Enumeration disaffirms the rule in 
 cases not enumerated. Bacon, Aph. 17. 
 
 Enumeratio unius est exclusio alterius. SpecU- 
 cation of one thing is en exclusion of the rest, 
 4 Johns. Ch. 106, 113. 
 
 Eodem modo quo oritur, eodem mode dissdvitur. 
 It is discharged in the same way in which It arises. 
 Bacon, Abr. Release ; Cro. Eliz. 697 ; 2 Wms. 
 Saund. 48, n. 1 ; 11 Wend. 28, 30 ; 24 id. M, 
 298 ; 5 Watts, 155. 
 
 Eodem modo quo quid constitvittir, eodem modo 
 destruitur. In the same way in which any thing 
 is constituted, in that way is it destroyed. 6 Co. 
 53. 
 
 Equality is equity. Francis, Ma:^, Max. 3; 4 
 Bouv. Inst. n. 3725 ; 1 Story, Eq. Jur. § 64. 
 
 Equitas sequitur legem. Equity follows the law. 
 1 Story, Eq. Jur. 4 ; 5 Barb. 277, 282. 
 
 Equity delights to do justice, and that not If 
 halves. 5 Barb. 277, 280 ; Story, Eq. PI. § 73. 
 
 Equity foUovis the law. Cas. temp. Talb. 53; 1 
 Story, Eq. Jur. § 64. 
 
 Equity looks upon that as done, which ougM to 
 be done. 4 Bouv. Inst. n. 3729 ; 1 Fonbhmque, 
 Eq. b. 1, ch. 6, s. 9, note ; 3 Wheat. 563. 
 
 Equity suffers not a right without a remedy. > 
 Bouv. Inst. n. 3726. 
 
 Error fueatus nuda veritate in multis est prdxi- 
 bilior ; et scepenumero rationibjis vincit veritaUm 
 error. Error artfully colored is in many things 
 more probable than naked truth ; and frequently 
 error conquers truth by argumentation. 2 Co. 
 
 Error juris nocet. Error of law is injurions. 
 See 4 Bouv. Inst. n. 3828 : 1 Story, Eq. Jur. § 
 139, n. 
 
 Error nominis nunquam nocet, si de idmtitate rei 
 constat. Mistake in the name never injures, it 
 
MAXIM 
 
 179 
 
 MAXIM 
 
 there Is no doubt as to the identity of the thing. 
 1 Duer, Ins. 171. 
 
 Error qui non resistUur, approbatur. An error 
 not resisted is approved. Doct. & St. c. 70. 
 
 Error scrSmMs noeere rum debet. An error made 
 by a clerk ought not to injure. 1 Jenk. Cent. 334. 
 
 Errores ad sua principia referre, est refellere. 
 To refer errors to their origin is to refute them. 
 3 Inst. 15. 
 
 Erubescit lexfiUos eastigare parentes. The law 
 blushes when children correct their parents. 8 
 Co. 116. 
 
 Est aliquid qiiodnon oportet, etiam si licet ; quie- 
 quid vero non licet eerte non oportet. There are 
 some things which are not proper though lawful ; 
 but certainly those things are not proper which 
 are not lawful. Hob. 159. 
 
 Est autem jus publicum et privatum, quod ex «a- 
 turalibus prceeeptis out gentium, aut eivililms est 
 collectum ; et quod in jure scripto jus appeUatur, 
 id in lege Anglia rectum esse dicitur. Public and 
 private law is that which is collected from natu- 
 ral precepts, on the one hand of nations, on the 
 other of citizens ; and that which in the civil law 
 is called jus, that in the law of England is said 
 to be right. Co. Litt. 558. 
 
 Est autem vis legem simulans. Violence may 
 also put on the mask of law. 
 
 Est honi judids ampliare jurisdictionem. It is 
 the part of a good judge to extend the jurisdic- 
 tion. Gilb. 14. 
 
 Est ipsorum Ugislatorum tanquam viva vox ; re- 
 bus et non verbis legem imponimus. The utterance 
 of legislators themselves is like the living voice ; 
 we impose law upon things, not upon words. 10 
 Co. 101. 
 
 Wstoveria sunt ardendi, arundi, construendi, et 
 claiidendi. Estovers are for burning, ploughing, 
 building, and inclosing. 13 Co. 68. 
 
 Eum qui nocentem infamat, non est aquum et 
 bonum ob earn rem condemnari ; delicta enim no- 
 centium nota esse oportet et expidit. It is not just 
 and proper that he who speaks ill of a bad man 
 should be condemned on that account ; for it is 
 fitting and expedient that the crimes of bad men 
 should be known. Dig. 47. 10. 17 : 1 Bla. Com. 
 125. 
 
 Eventus varios res nova semper habet. A new 
 matter always produces various events. Co. Litt. 
 379. 
 
 Every man is presumed to intend the natural 
 and probable consequences of his own voluntary 
 acts. 1 Greenl. Evid. § 18 : 9 East, 377 : 9 B. 
 & C. 643 ; 3 Maule & S. 11, 17. 
 
 Ex antecedentibus et consequentibus Jit optima 
 interpretatio. The best interpretation is made 
 from antecedents and consequents. 3 Pars. 
 Contr. 13, n. (r) ; Broom, Max. 577 ; 2d Inst. 
 317; 3 Bla. Com. 379 ; 1 Bulstr. 101 ; 15 East, 541. 
 
 MX diuturnitate temporis, omnia prcesumvmtur 
 solenniter esse acta. From length of time, all 
 things are presumed to have been done in due 
 form. Co. Litt. 6 ; Broom, Max. 943 : 1 Greenl. 
 Ev. § 20 ; Best, Ev. § 43. 
 
 Ex dolo malo non oritur actio. A right of ac- 
 tion cannot arise out of fraud. Broom, Max. 
 397, 729 et seq. ; Cowp. 343 ; 2 C. B. 501, 512, 
 515 ; 5 Scott, N. B. 558 ; 10 Mass. 276 , 107 id. 440. 
 
 Ex facto jus oritur. The law arises out of the 
 fact. 3 Inst. 479 ; 3 Bla. Com. 329 ; Broom, 
 Max. 103. 
 
 Ex frequenti delicto augetur poena. Punishment 
 increases with increasing crime. 2 Inst. 479. 
 
 Ex malejicio Twn oritur contractus. A contract 
 cannot arise out of an illegal act. Broom, Max. 
 734 : 1 Term, 734 ; 3 id. 433 ; 1 H. Bla. 334 : 5 
 E. & B. 999, 1015. 
 
 Ex malis mtirilms bon(E leges natce sunt. Good 
 laws arise from evil manners. 3 Inst. 161, 
 
 Ex multitudine signorum, colligitwr identUai 
 vera. From the great number of signs true iden* 
 tity is ascertained. Bacon, Max. Beg. 35 ; Broom, 
 Max. 638. 
 
 Ex nihllo nihil jit. From nothing nothing 
 comes. 13 Wend. 178, 331; 18 id. 357, 301. 
 
 Ex nudo pacta non oritur actio. No action arises 
 on a contract without a consideration. Koy , Max. 
 24 ; Broom, Max. 745 ; 3 Burr. 1670 ; 2 Sharsw. 
 Bla. Com. 445 ; Chitty, Contr. 11th Am. ed. 34 ; 
 1 Story, Contr. § 525. See Nudum Pactum. 
 
 Ex pacto Ulicito non oritur actio. From an 
 illicit contract no action arises. Broom, Max. 
 743 ; 7 CI. & F. 739. 
 
 Ex procedentfbus et consequentibus optima jit in- 
 terpretatio. The best interpretation is made from 
 things proceeding and following (i. e. the con- 
 text). 1 RoUe, 375. 
 
 Ex tota materia erwrgat resolutio. The con- 
 struction or explanation should arise out of the 
 whole subject-matter. Wing. Max. 338. 
 
 Ex turpi causa non oritur actio. No action 
 arises out of an immoral consideration. Broom, 
 Max. 730 et seq. ; Selw. N. P. 63 ; 3 Pet. 539 ; 
 118 Mass. 299. 
 
 Ex turpi contractu non oritur actio. No action 
 arises on an immoral contract. Dig, 8. 14. 27. 
 4 ; 2 Kent, 466 ; 1 Story, Contr. § 593 ; 23 N, T. 
 373 ; 16 Ohio, 139. 
 
 Ex uno disces omnes. From one thing you can 
 discern all. 
 
 Exceptio ejus rei eujuspetitur dissolutio nulla est. 
 A plea of that matter the solution of which is the 
 object of the action is of no effect, Jenk, Cent, 
 37, 
 
 Exceptio falsi est omnium ultima. The excep- 
 tion of falsehood is last of all. Trayner, Max. 
 198. 
 
 Exceptio jlrmat regiHam in caxUbus non exceptia. 
 The exception affirms the rule In cases not ex- 
 cepted. Bacon, Aph. 17. 
 
 Exceptio jlrmat regulam in contrarium. The 
 exception affirms the rule to be the other way. 
 Bacon, Aph. 17. 
 
 Exceptio nulla est versus actionem qitce excep- 
 tionem perimit. There can be no plea against an 
 action which entirely destroys the plea. Jenk. 
 Cent. 106. 
 
 Exceptio probat regulam de rebus non exceptis. 
 An exception proves" the rule concerning things 
 not excepted. 11 Co. 41 ; 1 Pick. 371 ; 33 id. 113, 
 
 Exceptio qua jlrmat legem exponit legem. An 
 exception which confirms the law, expounds the 
 law. 2 Bulstr. 189. 
 
 Exceptio quoque regulam declarat. The excep- 
 tion also declares the rule. Bacon, Aph. 17. 
 
 Exceptio semper ultima ponenda est. An excep- 
 tion is always to be put last. 9 Co. 53. 
 
 Excessus in jure reprobatur. Excesstis in re 
 qualibetjure reprobatur commwni. Excess in law 
 is reprehended. Excess in any thing is repre- 
 hended by common law. 11 Co. 44. 
 
 Excusat aut extenuat delietum in capitaWbus, 
 quod noil operatur idem in civilibus. That excuses 
 or extenuates a wrong in capital causes which 
 does not have effect in civil suits. Bacon, Max. 
 Keg. 7 ; Broom, Max. 324. 
 
 Executio est exectitio juris secundum judicium. 
 An execution is the execution of the law accord- 
 ing to the judgment. 3 Inst. 212. 
 
 Executio estjinis etfructus legis. An execution 
 is the end and the fruit of the law, Co. Litt. 
 289. 
 
 Exilium est patrice privatio, natalis soli mutatio, 
 legum nativarum amissio. Exile is a privation of 
 country, a clfange of natal soil, a loss of native 
 laws. 7 Co. 20. 
 
 Expedit reipubliccE ne sua re quis male utatur. 
 It is for the interest of the state that a man 
 
MAXIM 
 
 180 
 
 MAXIM 
 
 should not use his own property improperly. 
 Jnst. 1. 8. a ; Broom, Max. 365-6 ; 8 Allen, 339. 
 
 Mxpedit reipublicce vt sit flnis lUium. It is to 
 the advantage of the state that there should be 
 an end of litigation. Co. Litt. 303 6 ; 5 Johns. 
 Ch. 568. See Interest reipublicce, etc. 
 
 Ihgjerientia per varios actus legem faeit. Expe- 
 rience by various acts malses laws. Co. Litt. 
 60; Branch, Princ. 
 
 Expositio, quce ex viseeribus causes nascitur, est 
 aptissima et fortissima in lege. That exposition 
 which springs from the vitals of a cause is the 
 fittest and most powerful in law. 10 Co. 24. 
 
 Sxpressa nocent, non expressa non noceni. 
 Things expressed may be prejudicial ; things not 
 expressed are not. Calvinus, Lex. ; Dig. 50. 17. 
 19. 5. 
 
 Expressa non proswnt quce non expressa prode- 
 runt. Things expressed may be prejudicial 
 which not expressed will profit. 4 Co. 73. 
 
 Mxpressio eorum quce tacite inmnt nihU operatur. 
 The expression of those things which are tacitly 
 implied operates nothing. Broom, Max. 669, 
 753 ; 2 Pars. Contr. 38 ; 4 Co. 73 ; 5 id. 11 ; Hob. 
 170 ; 3 Atk. 138 ; 11 M. & W. 569 ; 7 Exch. 28. 
 
 Expressio wnlus est exchisio aUerius. The ex- 
 pression of one thing is the exclusion of an- 
 other. Co. Litt. 310 ; Broom, Max. 607, 6.51 et 
 teq. ; 3 Bingh. N. c. 85 ; 8 Scott, N. K. 1013, 1017 ; 
 Term, 31 ; 6 id. 320 ; 13 M. & W. 761 ; 15 id. 
 110 ; 16 id. 244 ; 2 Curt. C. C. 365 ; 6 Mass. 84 ; 
 11 Cush. 328 ; 98 Mass. 39 ; 117 «. 448 ; 3 Johns. 
 Ch. 110 ; 5 Watts, 156 ; 59 Penn. 178. 
 
 Mxpressumfacit cessare taciturn. That which 
 Is expressed puts an end to (renders ineffective) 
 that which is irriplied. Broom, Max. 607, 651 
 et seq.; 5 Bingh. N. c. 185 ; 6 B. & C. 609 : 3 C. 
 & M. 4.59 ; 3 E. & B. 856 ; 7 Mass. 106 ; 9 Allen, 
 306 ; 13 id. 73 ; 34 Me. 374 ; 6 N. H. 481 ; 7 
 Watts, 361 ; 1 Doug. Mich. 330; 4 Wash. C. C. 
 185. 
 
 Exterus non habit terras. An alien holds no 
 lands. Trayner, Max. 203. 
 
 Extincto suijecto, toUitur adjunetum. When the 
 substance Is gone, the adjuncts disappear. 16 
 Johns. 438, 493. 
 
 Extra legem positvs est dviliter tnoriuus. One 
 out of the pale of the law (an outlaw) is civilly 
 dead. Co. Litt. 130. 
 
 Extra territorium jus dicenii non paretur im- 
 pune. One who exercises jurisdiction out of his 
 territory cannot be obeyed with impunity. 10 
 Co. 77 ; Dig. 3. 1. 20 ; Story, Confl. Laws, § 539 ; 
 Broom, Max. 100, 101. 
 
 Extremis probatis prcesumuniwr media. Ex- 
 tremes being proved intermediate things are pre- 
 sumed. Trayner, Max. 307. 
 
 Facta sunt potentiora verbis. Facts are more 
 powerful than words. 
 
 Facts cannot lie. 18 How. St. Tr. 1187 ; 17 »<? ; 
 1430 ; but see Best, Ev. 587. 
 
 Factum a judice quod ad ejus officium non spec- 
 tat, non ratum est. An act of a judge which does 
 not pertain to his office is of no force. 10 Co. 
 76 ; Dig. 50. 17. 170 ; Broom, Max. 93, n. 
 
 Factum, euique suum, non adversaria, nocere de- 
 bet. A man's actions should injure himself, not 
 his adversary. Dig. 50. 17. 155. 
 
 Factum infectum fieri nequit. What Is done 
 cannot be undone. 1 Kames, Eq. 96, 359. 
 • Factum negantis nulla probatio. No proof Is 
 incumbent on him who denies a fact. 
 
 Factmn non dicitur quod non perseverat. That 
 •is not said to be done-which does not last. 5 Co. 
 96 : Shep. Touch. Preston ed. 391. 
 
 Factum unius alteri nocere non debet. The deed 
 of one should not hurt another. Co. Litt. 153. 
 
 Facultas probationum non est angustanda. The 
 
 right of offering proof is not to be narrowed 
 4 Inst. 279. 
 
 Falsa demonstraiio non nocet. A false descrin. 
 Hon does not vitiate. 6 Term, 676. See 2 Storr 
 291; 1 Greenl. Ev. § 301; Broom, Max. 629 el 
 seq. ; 3 Pars. Contr. 63, n., 69, n., 73, n., 76, n • 
 
 4 C. B. 328 ; 11 «. 308 ; 14 id. 133 ; 7 Mete. 418 '■ 
 8 Gray, 78 ; 9 Allen, 113 ; 16 Ohio, 64. ' 
 
 Falsa demonstratione legatum non perimi. A 
 legacy is not destroyecj by an incorrect descrip- 
 tion. Broom, Max. 645 ; 3 Bradf. 144, 149. 
 
 FcUsa ortlwgraphia, give falsa grammatita, mm 
 vitiat concessionem. False spelling or falsegram- 
 mar does not vitiate a grant. 9 Co. 48 ■ SheD 
 Touch. 55. "' 
 
 Falaus in uno, faHsus in omnibus. False in one ■ 
 thing, false in every thing. 1 Sumn. 356 : 7 
 Wheat. 338 ; 97 Mass. 406 ; 3 Wise. 645 ; 2 Jones 
 N. C. 257. ' 
 
 Fama, fides, et oculus nonpativmtur ludum. 
 Fame, plighted faith, and eyesight do not endure 
 deceit. 3 Bulstr. 326. 
 
 Fatetur facinus qui judicium fugit. He who 
 flees judgment confesses his guilt. 3 Inst. 14 ■ 
 
 5 Co. 109 6. But see Best, Pres. § 348. ' 
 Fatuus prcesumitwr qui in propria nomine errat. 
 
 A man is pfesumed to be simple who maltes a 
 mistake in his own name. Code, 6. 24. 14 ; 5 
 Johns. Ch. 148, 161. 
 
 FavordbUia in lege suntflscus, dos,vita,liiertat. 
 The treasury, dower, life, and liberty, are things 
 favored in law. Jenk. Cent. 94. 
 
 FavoraiUiores rei potius quam adores habentur. 
 Defendants are rather to be favored than plain- 
 tiffs. Dig. 50. 17. 125. See 8 Wheat. 195, 196; 
 Broom, Max. 715. 
 
 Favorabiliores sunt exeeutiones aliis procesiSnu 
 quibuscunque. Executions are preferred to all 
 other processes whatever. Co. Litt. 287. 
 
 Favores ampliandi sunt ; odia restrvngenda. Fa- 
 vorable inclinations are to be enlarged ; animosi- 
 ties restrained Jenk. Cent. 186. 
 
 Felonia ex vi termini, signifieat qttodlibet eapi- 
 tale crimen felleo animo perpetratum. Felony, by 
 force of the term, signifies some capital crime 
 perpetrated with a malignant mind. Co. Litt. 
 391. 
 
 Felimiaimplicc^urin quolibet proditione. Felony 
 is implied in every treason. 3 Inst. 15. 
 
 Feodum est quod quis tenet ex qiiacunque causa, 
 sive sit tenementum sive redditus. A fee is that 
 which any one holds from whatever cause,whether 
 tenement or rent. Co. Litt. 1. 
 
 Festinatio justitia est noverca infortunii. Tlie 
 hurrying of justice is the stepmother of misfor- 
 tune. Hob. 97. 
 
 Fiat justitia ruat ccelu/m. Let justice be done, 
 though the heavens should fall. Branch, Princ. 
 161. 
 
 Fiat prout fieri consu€rU,n{l temerenovandum. 
 Let it be done as formerly, let no innovation be 
 made rashly. Jenk. Cent. 116 ; Branch, Princ, 
 
 Fictio cedit veritati. Fiction yields to truth. 
 
 Fictio est contra veritatem, sed pro veritate Jidbi- 
 twr. Fiction is against the truth, but it is to be 
 esteemed truth. 
 
 F^tio juris non est uK Veritas. Where truth is, 
 fiction of law does not exist. 
 
 Fictio legis inique operatur alieni damnwn vd 
 injuriam. Fiction of law is wrongful if it works 
 loss or injury to any one. 3 Co. 35 ; 3 id. 36 ; 
 Gilb. 333 ; Broom, Max. 139. 
 
 FKctio legis neminem Icedit. A fiction of law in- 
 jurcs no one. 3 RoUe, 503 ; 3 Bla. Com. 43 ; 17 
 Johns. 348. 
 
 Mdes servanda. Good faith must be observed. 
 1 Mete. Mass. 551 ; 3 Barb. 323, 330 ; S3 id. 531, 
 524. ' ' 
 
 Fides servanda est ; simplicitas juris gentium 
 
MAXIM 
 
 181 
 
 MAXIM 
 
 proevcieat. Good faith Is to be preserved ; the 
 simplicity of the law of nations should prevail. 
 Story, Bills, § 15. 
 
 Fieri non, debet, sed factum valet'. It ought not 
 to be done, but done it is valid. 5 Co. 89 ; 1 Str. 
 536: 19 Johns. 84, 93; 12 id. 11, 376. 
 
 Mliatio noH potest probari. Filiation eannot be 
 proved. Co. Litt. 126 a. But see 7 & 8 Vict. c. 
 101 
 
 Pilius est nomen natures, sed hares nomen juris. 
 Son is a name of nature, but heir a name of law. 
 X Sid. 193 ; 1 Pow. Dev. 311. 
 
 Filiiis in utero matris est pars viscerum matris. 
 A son in the mother's womb is part of the moth- 
 er's vitals. 7 Co. 8. 
 
 Mnis flnem litibus imponit. A fine puts an end 
 to litigation. 3 Inst. 78. 
 
 Mnis rei attendendus est. The end of a thing 
 is to be attended to. 3 Inst. 51. 
 
 Finis unius diei est principiwn alterius. The 
 end of one day is the beginning of another. 2 
 Buletr. 305. 
 
 Mrmior et poientior est operatio leffis quam dis- 
 positio hominis. The operation of law is firmer 
 and more powerful than the will Of man. Co. 
 Litt. 103. See Fortior et, etc. 
 
 Flumina et partus publica sunt, ideoque jus pis- 
 candi omnibus commune est. Rivers and ports are 
 public; therefore the right of fishing there is 
 common to all. Dav. 55 . Branch, Princ. 
 
 Fmninm db omnibus o;fficiis dvilibus vel publicis 
 remotce sunt. Woman are excluded from all civil 
 and public charges or offices. Dig. 50. 17. 2 ; 1 
 Exch. 645 ; 6 M. & W. 216. 
 
 F(jmiince non sunt eapaees de publicis offlciis. 
 Women are not admissible to public offices. 
 Jenk. Cent. 237. But see 7 Mod. 263 ; Str. 1114 ; 
 a Ld. Raym. 1014 ; 2 Term, 395. See Women. 
 
 Forma dat esse. Form gives being. Lord 
 Henley, Ch. 2. 
 
 Forma legalis forma essentialis. Le&;al form is 
 essential form. 10 Co. 100 ; 9 C. B. 493 ; 2 Hopk. 
 319. 
 
 Forms non dbservata, infertur adnullatio actus. 
 When form is not observed, a nullity of the act 
 is inferred. 12 Co. 7. 
 
 Forstellarius est pauperum depressor, et totius 
 communitatis et patrice publicus inimicus. A fore- 
 staller is an oppressor of the poor, and a public 
 enemy to 'the whole community and the country. 
 3 Inst. 196. 
 
 Fortior est custodia legis quam hominis. The 
 custody of the law is stronger than that of man. 
 3 RoUe, 325. 
 
 Fortior et potentior est dispositio legis quam 
 hominis. The disposition of the law Is stronger 
 and more powerful than that of man. Co. Litt. 
 234 ; Broom, Max. 697-8 ; 10 Q. B. 944 ; 18 id. 
 87; 10 C. B. 561 ; 3 H. L. C. 507 ; 13 M. & W. 
 285, 306 ; 8 Johns. 401. 
 
 Fraetionem diei non recipit lex. The law does 
 not regard a fraction of a day. Lofft, 572. But 
 see Day. 
 
 Fraterfratri uterino non succedet in TuBreditate 
 paterna. A brother shall not succeed a uterine 
 brother in the paternal inheritance. Fort, de 
 Laud. Leg. Ang. by Amos, p. 15 ; 2 Sharew. 
 Bla. Com. This maxim is now superseded in 
 England by 3 & 4 Wm. IV. c. 106, s. 9. Broom, 
 Max. 530 ; 2 Bla. Com. 332. 
 
 Fraus est celare fraudem. It is a fraud to con- 
 ceal a fraud. 1 Vern. 370. 
 
 Fraus est odiosa et non prasum^nda. Fraud is 
 odious and not to be presumed. Cro. Car. 550. 
 
 Fraus et dolus nemini patrocinari debent. Fraud 
 and deceit should excuse no man. Broom, Max. 
 297; 3 Co. 78. 
 
 Fi^aus et jus nunquam cohabitant. Fraud and 
 justice never dwell together. Wing. Max. 680. 
 
 Fraus latet in generdlibm. Fraud lies hid in 
 general expressions. 
 
 Fraus meretur fraudem. Fraud deserves fraud. 
 Plowd. 100 ; Branch, Princ. 
 
 Freight is the mother of wages. 2 Show. 383 ; 
 3 Kent, 196 ; 1 Hagg. 227; Smith, Merc. Law, 
 548 ; Cauders, Mar. Law, 339-343, 391, 398 ; 1 
 Hilt. 17; 5 Johps. 154; 11 id. 279; 12 id. 334; 
 52 Mo. 387. 
 
 Frequentia actus multum operatur. The fre- 
 quency of an act effects much. 4 Co. 78 ; Wing. 
 Max. 193. 
 
 Fructus augent hcereditatem. Fruits enhance 
 an inheritance. 
 
 Fructus pendentes pars fundi videntur. Hang- 
 ing fruits make part of the land. Dig. 6. 1. 44; 
 3 Bouv. Inst. n. 1578. See Larceny. 
 
 Fructus perceptos villce non esse constat. Gath- 
 ered fruits do not make a part of the farm. Dig. 
 19. 1. 17. 1 ; 2 Bouv. Inst. n. 1578. 
 
 Frum£nta qws sata sunt solo cedere intelliguntur. 
 Grain which is sown is understood to form a part 
 of the soil. Inst. 2. 1. 32. 
 
 Frustra agit qui judicium prosequi nequit aim 
 effectu. He in vain sues, who cannot prosecute 
 his judgment with effect. Pleta, lib. 6, c. 37, § 9. 
 
 Fi'v^tra est potentia qu<B nunquam venit in actum. 
 The power which never comes to be exercised Is 
 vain. 3 Co. 51. 
 
 Frustra expeetatur eventus eujus effectus mUltis 
 sequitur. An event is vainly expected from 
 which no effect follows. 
 
 Frustra feruntur leges nisi subditis et obedienti- 
 bus. Laws are made to no purpose unless for 
 those who are subject and obedient. 7 Co. 13. 
 
 Frustra Jit per plura, quod fieri potest per 
 pauciora. That is done vainly by many things, 
 which might be accomplished by fewer. Jenk. 
 Cent. 68; Wing. Max. 177. 
 
 Frustra legis auxilium qucerit qui in legem conv- 
 mittit. Vainly does he who offends against the 
 law seek the hflp of the law. 2 Hale, P. C. 386; 
 Broom, Max. 279, 397. 
 
 Frustra petis quod statim alteri reddere cogeris. 
 Vainly you seek that which you will immediately 
 be compelled to give back to another. Jenk. 
 Cent. 3.56 ; Broom, Max. 346. 
 
 Frustra petis quod mox es restiiurus. Vainly 
 you seek what you will immediately have to re- 
 store. 15 Mass. 407. 
 
 Frustra probatur quod probatum non relevat. It 
 is vain to prove that which if proved would not 
 aid the matter in question. Broom, Max. 355 : 
 13 Gray, 511. 
 
 Furiosi nulla vohmtas est. A madman has no 
 will. Dig. 50. 17. 5 ; id. 1. 18. 13. 1 ; Broom, 
 Max. 314. 
 
 Furiosiis absentis loco est. A madman is con- 
 sidered as absent. Dig. 50. 17. 34. 1. 
 
 Furiosus nullum negotium contraliere {gerere) ■ 
 potest {quia non intelligit quod agit) . A lunatic 
 cannot make a contract. Dig. 50. 17. 5; 1 
 Story, Contr. § 78. 
 
 Furiosus solo furore punitur, A madman is 
 punished by his madness alone. Co. Litt. 347 ; 
 Broom, Max. 15 ; 4 Bla. Com. 34, 25. 
 
 Fkoriosus stipulari non potest nee aliquod nego- 
 tium agere, qui non intelligit quid agit. An insane 
 person who knows not what he does, cannot make 
 a bargain, nor transact any business. 4 Co. 126. 
 
 Furor contrdhi matrimxmiumnon sinit, quia con- 
 sensu opus est. Insanity prevents marriage from 
 being contracted, because consent is needed. 
 Dig, 23. 2. 16. 2 ; 1 V. & B. 140 ; 1 Bla. Com. 
 439 ; 4 Johns. Ch. 343, 345. 
 
 F'urtum non est ubi initium Jiabet detentionis per 
 dominum rei. It is not theft where the com- 
 mencement of the detention arises through the 
 owner of the thing. 8 Inst. 107. 
 
MAXIM 
 
 182 
 
 MAXIM 
 
 Oenercde dictum gmeraliter est interpretandum. 
 A general expression is to be construed generally. 
 8 Co. 116 ; 1 Eden, 96. 
 
 Oenerale nihil certum implicat, A general ex- 
 pression Implies nothing certain. 2 Co. 34 ; 
 Wing. Max. 164. 
 
 Oenerale tantum valet in generalUms, quantum 
 slngulare in singulis. "What is general prevails 
 (or is worth as much) among things general, as 
 what is particular among things particular. 11 
 Co. 59. 
 
 Generalia praeedtmt, ^edalia sequuntur. 
 Things general precede, things special follow. 
 Keg. Brev. ; Branch, Frinc. 
 
 Generalia specicUibus nan derogant. Things 
 
 feneral do not derogate from things special, 
 enk. Cent. 120. 
 
 Generalia sunt prceponenda gingularibus. Gen- 
 eral things are to be put before particular things. 
 
 Gerteralia verba sunt generaliter intelUgenda. 
 General words are understood in a general sense. 
 8 Inst. 76 ; Broom, Max. 647. 
 
 Generalibus specialia derogant. Things special 
 take from things general. Halkers, Max. 51. 
 
 Generalis clausula non porrigitur ad ea qua 
 antea specialiter sunt comprehensa. A general 
 clause does not extend to those things which are 
 previously provided for specially. 8 Co. 1.54. 
 
 Generalis regula genercUiter est intelligenda. A 
 general rule is to be understood generally. 6 Co. 
 
 Glossa viperina est qua eorrodit viscera textus. 
 That is a viperine gloss which eats out the vitals 
 of the text. 10 Co. 70 ; 2 Bulstr. 79. 
 
 Grammatica falsa non vitiat chartam. False 
 grammar does not vitiate a deed. 9 Co. 48. 
 
 GraiHus est divinam quam temporalem ladere 
 majestatem. It is more serious to hurt divine 
 than temporal majesty, 11 Co. 29. 
 
 Sdbemus optimum testem confltentem reum. We 
 have the best witness, a confessing defendant. 
 Fos. Cri. Law, 843. See 2 Hagg. 315 ; 1 Phill. 
 Ev. 397. 
 
 Hceredem Deusfacit, non homo. God, and not 
 man, makes the heir. Bract. 62 b ; Co. Litt. 7 b. 
 
 Hceredipetce suo propmquo vel extraneo pericu- 
 loso sane custodi nullus committatwr. To the next 
 heir, whether a relation or a stranger, certainly 
 a dangerous guardian, let no one be committed. 
 Co. Litt. 88 6. 
 
 SaredUas est suecessio in universum jus quod 
 defunctus hatmerat. Inheritance is the succession 
 to every right which was possessed by the late 
 possessor. Co. Litt. 237. 
 
 Scereditas nihil aliud est, quam suecessio in 
 universum jus, quod defunctus habuerit. The right 
 of inheritance is nothing else than the faculty of 
 succeeding to all the rights of the deceased. 
 Dig. 50. 17. 62. 
 
 Hcereditas nimquam ascendit. The inheritance 
 never ascends. Glanville, 1. 7. c. 1 ; Broom, 
 Max. 527-8 ; 8 Sharsw. Bla. Com. 312, n. ; 8 
 Greenl. Cr. B. P. 331 ; 1 Steph. Com. 878. Ab- 
 rogated by Stat. 3 & 4 Will. IV. c. 106, § 6. 
 
 Mieredum appellationeveniunt hceredes hceredum 
 in infinitum. By the title of heirs, come the 
 heirs of heirs to inflnity. Co. Litt. 9. 
 
 Hares est alter ipse, etfiliut est pars patris. An 
 heir is another self, and a son is a part of the 
 father. 
 
 Hares est aut jure proprietatis aut jure repre- 
 sentationis. An heir is either by right of pro- 
 perty or right of representation. 3 Co. 40. 
 
 Hares est eadem persona cum anteeessore. The 
 heir is the same person with the ancestor. Co. 
 Litt. 23. 
 
 Hares est nomen coUeetivum, Heir Is a collective 
 name. 
 
 Hares est nomen juris, fllius est nomen naturce. 
 Heir is a term of law ; son, one of nature. 
 
 Hares est para antecessoris. The heir is a part 
 of the ancestor. Co. Litt. 82 6 : 8 Hill, N. T 
 165, 167. 
 
 Hares hoeredia mei est meus hares. The heir of 
 my heir is my heir. Wharton, Law Diet. 
 
 Hares legitimus est quern nuptia demonstrant. 
 He is the lawful heir whom the marriage indi- 
 cates. Mirror of Just. 70 ; Fleta, 1. 6, c. 1 ; 
 Dig. 2. 4. • 5 ; Co. Litt. 7 6 ; Broom, Max. 515. 
 (As to the application of the principle when the 
 marriage is subsequent to the birth of the child, 
 see 2 CI. & F. 571 ; 6 Blngh. N. c. 385 ; 5 Wheat. 
 226,262, n.) 
 
 Hares minor uno et vigenti annis non responde- 
 bit, nisi in casu dotis. An heir under twenty-one 
 years of age, is not answerable, except m the 
 matter of dower. F. Moore, 348. 
 
 He who has committed iniquity shall not have 
 equity. Francis, 3d Max. 
 
 He who wUl have equity done to him must do 
 equity to the same person. 4 Bouv. Inst. 3733. 
 
 Hoc servdbitur quod initio convenit. This shall 
 be preserved which is useful in the beginning. 
 Dig. 50. 17. 23 ; Bract. 73 b. 
 
 Honne ne sera pwny pur suer des briefes en court 
 le roy, soit U a droit ou a tort. A man shall not 
 be punished for suing out writs in the king's 
 court, whether he be right or wrong. 2 Inst. 
 228 ; but see Malicious Pkosecution. 
 
 Hominum causa jus constitutum est. Law is es- 
 tablished for the benefit of man. 
 
 Homo potest esse h^bilis et inhubilis diversis tem- 
 poribus. A man may be capable and incapable 
 at divers times. 5 Co. 98. 
 
 Homo vocabulum est natura ; persona juris civ- 
 His. Man (homo) is a term of nature ; person 
 {persona), of civil law. Calvinus Lex. 
 
 Hora non est multum de mbstantia negotii, licet 
 in appello de ea aliqitando flat mentio. The hour 
 is not of much consequence as to the substance 
 of business, although in appeal it is sometimes 
 mentioned. 1 Bulstr. 83. 
 
 Hostes sunt qui nobis vel quibiis nos beltum decer- 
 nimus ; cateri traditores vel pradones sunt. Ene- 
 mies are those upon whom we declare war, or 
 who declare it against us; all others are traitors 
 or pirates. 7 Co. 24; Dig. 50. 16. 118; 1 
 Sharsw. Bla. Com. 357. 
 
 Id certum. est quod certum reddi potest. That 
 is certain which may be rendered certain. 1 
 Bouv. Inst. n. 929 ; 3 Bla. Com. 143 ; 4 Kent, 
 463 ; 24 Pick. 178 ; 11 Cush. 380 ; 90 Mass. 548; 
 99 id. 3.30 ; Broom, Max. 624 et seq. 
 
 Id perfectum est quod ex omnibus suis partVM 
 constat. That is perfect which is complete in all 
 its parts. 9 Co. 9. 
 
 Idpossumus quodde jure possumus. We are 
 able to do that which we can do lawfully. Lane, 
 116. 
 
 Id quod est magis remotum, non trahit ad M 
 quod est magis junctum, sed e contrario in omni 
 casu. That which is more remote does not 
 draw to itself that which is nearer, but the con- 
 trary in every case. Co. Litt. 164. 
 
 Id quod nostrum est, sine facto nostra, addium 
 transferri non potest. What belongs to us cannot 
 be transferred to another without our consent. 
 Dig. .50. 17. 11. 
 
 Id solum nostrrtm quod debitis deductis nostrum 
 est. That only is ours which remains to us after 
 deduction of debts. Trayner, Max. 227. 
 
 Id tantum possumus quod de jure potiemui. 
 We can do that only which we can lawfully do. 
 Trayner, Max. 237. 
 
 Idem agem et patiens esse non poteat. To be at 
 
MAXIM 
 
 183 
 
 MAXIM 
 
 once the person acting and the person acted upon 
 Is impossible. JenlE. Cent. 40. 
 
 Idem est facere, et noUe proMbere cum poasis. 
 It Is the same thing to do a thing as not to pro- 
 hibit it when in your power. S Inst. 158. 
 
 Idem est nihil dicere et insufflcienter dicere. It 
 is the same thing to say nothing and not to say 
 enough. 2 Inst. 178. 
 
 Idem est non. prdbari et non esse ; non deficit 
 jus sed probatio. What is not proved and what 
 does not exist, are the same ; it is not a defect of 
 the law, but of proof. 
 
 Idem est scire aut scire debere aut potuisse. To 
 be bound to know or to be able to know is the 
 game as to know. 
 
 Idem non esse et non apparere. It is the same 
 thing not to exist and not to appear. Broom, 
 Max. 165 ; Jenk. Cent. 207. 
 
 Idem semper antecedenti proximo refertur. Idem 
 always relates to the next antecedent. Co. Litt. 
 385 ; 7 Johns. Ch. 348. 
 
 Identitas vera colligitur ex mvltitudine signorum,. 
 True identity is collected from a number of signs. 
 Bacon, Reg. 29. 
 
 Igiwrantia eorum qua quis scire tenetur non ex- 
 cusat. Ignorance of those things which eyery 
 one is bound to know excuses not. Hale, F. C. 
 43. See Tindal, C. J., 10 CI. & F. 310 ; Broom, 
 Max. 267 ; 4 Bla. Com. 27. 
 
 ^norantia exaisatur, non juris sedfaeti. Igno- 
 rance of fact may excuse, but not ignorance of 
 law. See Ignorance. 
 
 Ignorantia facti excusat, ignorantia juris non 
 exeuaat. Ignorance of fact excuses, ignorance of 
 law does not excuse. 1 Co. 177 ; 4 Bouv. Inst. 
 n. 3828 ; Broom, Max. 253^, 263 ; 2 Gray, 413 ; 
 1 Fonb. Eq. 119, n. See Ignokancb. 
 
 Ignorantia judicis est calamitas innocentis. The 
 Ignorance of the judge is the misfortune of the 
 Imnocent. 3 Inst. 591. 
 
 Hgnoramtia juris non excusat. Ignorance of the 
 law is no excuse. 8 Wend. 267, 384 ; 18 id. 586, 
 688 ; 6 Paige, 189, 195 ; 1 Edw. Ch. 467, 473 ; 7 
 Watts, 374. 
 
 Ignorantia juris guod quisque scire tenetur^ nemi- 
 nem excusat. Ignorance of law which every one 
 is bound to know, excuses no one. 3 Co. 3 6 ; 1 
 Plowd. 343 ; per Ld. Campbell, 9 CI. & F. 334 ; 
 Broom, Max. 253 ; 7 C. & P. 456 ; 9 Pick, li' 
 16 Gray, 596 ; 3 Kent, 491. 
 
 IgnoraTitia juris sui non pi'ojudicat juri. Igno- 
 rance of one's right does not prejudice the right. 
 Loflft, 553. 
 
 ^norantia legis neminem excusat. Ignorance 
 of law excuses no one. See Ignorance ; 4 Bouv. 
 Inst. n. 3828 : 1 Story, Eq. Jur. § 111 ; 7 Watts, 
 374. 
 
 Ignoratis terminis, ignoratur et ars. Terms 
 being unknown, the art also is unknown. Co. 
 Lltt.2. 
 
 Ignoscitur ei qui sanguinem suum qualiter re- 
 demptum voluit. The law holds him excused who 
 chose that his blood should be redeemed on any 
 terms. Dig. 48. 31. 1 ; 1 Bla. Cora. 131. 
 
 Mud quod alius lieitum non est, necessitas faeit 
 lieitum, et necessitas inducit privUegium quod jure 
 privatur. That which is not otherwise lawful 
 necessity makes lawful, and necessity makes a 
 privilege which supersedes the law. 10 Co. 61. 
 
 Mlud quod alteri unitur extinguitur, neque am^ 
 pUus per se vacare licet. That which is united to 
 another is extinguished, nor can it be any more 
 independent. Godolph. 169. 
 
 ImmobUia situm sequuntur. Immovables follow 
 (the law of) their locality. 3 Kent, 67. 
 
 Imperitia aulpce eeimmeratwr. Want of skill, 
 is considered a fault (i. e. a negligence, for which 
 one who professes skill is responsible) . Dig. 50. 
 
 17. 133 ; 1 Bouv. Inst. n. 1004 ; 3 Kent, 588 : 4 
 Ark. 533. 
 
 Imperitia est maxima mechanicorum poena. Lack 
 of skill is the greatest punishment of artisans^ 
 11 Co. 54 o. 
 
 ImpersonalUas non concUtdif nee ligat. Imper- 
 sonality neither concludes nor binds. Co. Litt. 
 353. 
 
 Impius et erudelis judicandus est qui libertati 
 nonfavet. He is to be judged impious and cruel 
 who does not favor liberty. Co. Litt. 134. 
 
 ImpossibUium nulla obligatio est. There is no 
 obligation to perform impossible things. Dig. 
 50.-18. 185 ; 1 Poth. Obi. pt. 1, c. 1. s. 4, § 3 ; 3 
 Story, Eq. Jur. 763 ; Broom, Max. 249. 
 
 Unpotentia excusat legem. Impossibility is an 
 excuse in the law. Co. Litt. 39 : Broom, Max. 
 243, 351. 
 
 Impunitas continuum affectum tribuit delin- 
 quenti. Impunity oifers a continual bait to a de- 
 linquent. 4 Co. 45. 
 
 Impunitas semper ad deteriora invitat. Impu- 
 nity always invites to greater crimes. 5 Co. 109. 
 
 In cedifieiis lapis male positus non est removenr- 
 dus. In buildings a stone badly placed is not to 
 be removed. 11 Co. 69. 
 
 In cequali jure melior est conditio possidentis. 
 When the parties have equal rights, the condi- 
 tion of the possesor is the better. Mltf. Eq. PI. 
 315 ; Jer. Eq. Jur. 285 ; 1 Madd. Ch. Pr. 170 ; Dig. 
 50. 17. 138 ; Broom, Max. 713 ; Plowd. 296. 
 
 In alternativis electio est debitoris. In alterna- 
 tives, the debtor has the election. 
 
 In ambigua voce legis ea potius accipienda est 
 signijicatio, quae vitio caret ; prcesertim cum etiam 
 voluntas legis ex hoc colligi possit. When ob- 
 scurities, ambiguiiies, or faults of expression 
 render the meaning of an enactment doubtful, 
 that interpretation shall be preferred which is 
 most consonant to equity, especially where it is 
 in conformity with the general design of the 
 legislature. Dig. 1. 3. 19 ; Broom, Max. 576 ; 
 Bacon, Max. Eeg. 3 ; 3 Inst. 173. 
 
 In ambiguis orationilms maxime sententia spec- 
 tanda est ejus qui eas protulisset. When there are 
 ambiguous expressions, the intention of him who 
 uses them is especially to be regarded. (This 
 maxim of Roman law was confined to wills.) 
 Dig. 50. 17. 96 ; Broom, Max. 567. 
 
 in atrocioribus delictis punitur affectus licet non 
 sequatur effeetus. In more atrocious crimes, the 
 intent is punished though the efiect does not fol- 
 low. 3 Rolle, 89. 
 
 In casu extremes necessitatis omnia su/nt com- 
 munia. In cases of extreme necessity, every 
 thing is in common. Hale, PI. Cr. 54 ; Broom, 
 Max. 3 n. 
 
 In civilibus mvniaterium excusat, in criminali- 
 bus 7ion item. In civil matters agency (or ser- 
 vice) excuses, but not so in criminal matters. 
 Loflft, 228 ; Trayner, Max. 243. 
 
 In commodato hcec pactio, ne dolus prcestetur, 
 rata non est. If in a contract for a loan there is 
 inserted a clause that fraud should not be ac- 
 counted of, such clause is void. Dig. 13. 7. 17. 
 
 ■In conjunctivis oportet utramque partem, esse 
 veram. In conjunctives each part must be true. 
 Wing. Max. 13. 
 
 In consimili casu consimUe debet esse remedium. 
 In similar cases, the remedy should be similar. 
 Hardr. 65. 
 
 In consuetudinibus non diuturnitas temporis sed 
 soliditas rationis est consideranda. In customs, 
 not the length of time but the strength of the 
 reason should be considered. Co Litt. 141. 
 
 In contractihus, benigna ; in testamentis, benig~ 
 nior; in restitutionibus, benignissima interpretatio 
 facienda est. In contracts, the interpretation or 
 construction should be liberal ; in wills, more 
 
MAXIM 
 
 184 
 
 MAXIM 
 
 liberal ; in restitutions, most lilieral. Co. Litt. 
 113 a. 
 
 In contractibus tacite insunt qua simt moris el 
 consuetudinis. In contracts, those things which 
 are of custom and usage are tacitly implied. 
 Broom, Max. 843; 3 Bingh. N. 0. 814, 818; 
 Story, Bills, § 143 ; 3 Kent, 260. 
 
 In contrahenda venditione, ambiguum pactum 
 contra ventiorem interpretandum e»t. In negotiat- 
 ing a sale, an ambiguous agreement is to be in- 
 terpreted against the seller. Dig. 50. 17. 172 ; 
 18. 1. 31. 
 
 In conventionibus contrahentium voluntatem po- 
 tius quam verba spectari placuit. In agreements, 
 the rule is to regard the intention of the con- 
 tracting parties rather than their words. Dig. 
 50. 16. 219 ; 2 Kent, 555 ; Broom, Max. 551; 17 
 Johns. 160. 
 
 In criminalibus, probationes debent esse luce 
 clariores. In criminal cases, the proofs ought to 
 be clearer than the light. 3 Inst. 210. 
 
 In criminalibus sufflcit generalis malitia interim 
 tionis eum facto paris gradus. In criminal cases, 
 a general malice of intention is sufficient, with 
 an act of corresponding degree. Bacon, Max. 
 Keg. 15 ; Broom, Max. 323. 
 
 In criminalibus voluntas reputabitur pro facto. 
 In criminal acts, the will will be taken for the 
 deed. 3 Inst. 106. 
 
 In disjunctivis sufflcit alteram partem esse veram. 
 In disjunctives, it is sufficient if either part be 
 true. Wing. Max. 13 ; Broom, Max. 593 ; Co. 
 Litt. 325 o ; 10 Co. 50 ; Dig. 50. 17. 110. 
 
 In dubiis benigniora prceferenda sunt. In 
 doubtful matters, the more favorable are to be 
 preferred. Dig. 50. 17. .56 ; 3 Kent, .557. 
 
 In dubiis magis dignum est oi^piendum. In 
 doubtful cases, the more worthy is to be taken. 
 Branch, Princ. 
 
 i» dubiis non prccsumitur pro testamento. In 
 doubtful cases, there is no presumption in favor 
 of the will. Cro. Car. 51. 
 
 In dubio h<ec legis constrnctio quam verba osten- 
 dunt. In a doubtful case, that is the construction 
 of the law which the words indicate. 
 
 In dubio pars mitior est sequenda. In doubt, 
 the gentler course is to be followed. 
 
 In dubio sequendum quod tutius est. In doubt, 
 the safer course is to be adopted. 
 
 In eo quod plus sit semper inest et minus. The 
 less is always included in the greater. Dig. 50. 
 17. 110. 
 
 In expositione instrumentorum, mala gram- 
 matica, quod fieri potest, vitanda est. In the con- 
 struction of instruments, bad grammar is to be 
 avoided as much as possible. 6 Co. 39 ; 3 Pars. 
 Contr. 36. 
 
 In facto quod sehdbet adbonum et malum magis 
 de bono quam de malo lex intendit. In a deed 
 which may be considered good or bad, the law 
 looks more to the good than to the bad. Co. 
 Litt. 78. 
 
 In favorabilUms magis attenditur quod prodest 
 quam qtiodnocet. In things favored, what does 
 good is more regarded than what does harm. 
 Bacon, Max. Reg. 13. 
 
 In favorem vitae, libertatis, et innocentice omnia 
 prcesumuntmr. In favor of life, liberty, and inno- 
 cence, all things are to be presumed. Loift, 135. 
 In flctione juris semper aquitas exi^tit. A legal 
 fiction is always consistent with equity. 11 Co. 
 51 ; Broom, Max. 127, 130 ; 17 Johns. 348 ; 8 
 Bla. Com. 43-283. 
 
 In flctione juris semper subsistit aquitas. In a 
 legal fiction equity always exists. 74 Penn. 398 ; 
 2 Pick. 495, 627. 
 
 In generalibus versatur error. Error dwells in 
 
 general expressions. 3 Sumn. 390 ; 1 Cush. 293. 
 
 In genere quieunque aliquid didt, sive actor aive 
 
 reus, necesse est ut probat. In general, whoever 
 alleges anything, whether plaintiff or defendant 
 must prove it. Best, Ev. § 352. ' 
 
 In hceredes non tolent transire actiones qtta pa. 
 nales ex mcdefldo sunt. Penal actions arising 
 from any thing of a criminal nature do not pasB 
 to heirs. 2 Inst. 442. 
 
 In his enim quce sunt favordbilia anima, quan- 
 vis sunt damnosa rebus, flat aliquando extentio 
 statuii. In things that are favorable to the spirit 
 though injurious to property, an extension of the 
 statute should sometimes be made. 10 Co 
 101. 
 
 In his qmg de jure eommuni omnibus concedvn. 
 tur, consuetudo alicujus patriee vel lod non est 
 alleganda. In those things which by common 
 right are conceded to all, the custom of a par- 
 ticular country or place is not to be alleged. 11 
 Co. 85. 
 
 In jtidiciis minori cetati suceurritur. In judicial 
 
 proceedings infancy is favored. Jenk. Cent. 46. 
 
 In jicdicio non ereditur nisi juratis. In law, 
 
 no one is credited unless he is sworn. Cro. Car. 
 
 64. 
 
 In jure non remota causa, sed proxima, tpecta- 
 tur. In law, the proximate and not the remote 
 cause is to be looked to. Bacon, Max. Reg. 1; 
 Broom, Max. 316, 338, 853, n. ; 13 Mass. 334 ; 13 
 Mete. 387 ; 14 Allen, 293. See 2 Pars. Con. 455. 
 In majore summa continetur minor. In the 
 greater sum is contained the less. 5 Co. 115. 
 
 In maleflciis voluntas spectatur non exitus. In 
 offences, the intention is regarded, not the event. 
 Dig. 48. 8. 14; Bacon, Max. Beg. 7; Broom, 
 Max. 324. 
 
 In malefleio ratihaHtio mandato comparetur. In 
 a tort, ratification is equivalent to a command. 
 Dig. 50. 17. 153. 3. 
 
 In maxima potentia minima Keentia. In the 
 greatest power there is the least liberty. Hob. 
 159. 
 
 In m^reibus iUicitis non sit commerdum. There 
 should be no commerce in illicit goods. 3 Kent, 
 363, n. 
 
 In obscura voluntate manumittentis favendum 
 est libertati. Where the expfession of the will 
 of one who seeks to manumit a slave is ambigu- 
 ous, liberty is to be favored. Dig. 50. 17. 179. 
 
 In obseuris inspici solere quod verisimUius est, 
 aut quod plerumque fleri solet. Where there is 
 obscurity, we usually regard what is probable or 
 what is generally done. Dig. 50. 17. 114. 
 
 In obseuris quod minimum est sequimur. In 
 obscure cases, we follow that which is least so. 
 Dig. 50. 17. 9. 
 
 In odium spoliatoris omnia prcesumuntur. All 
 things are presumed against a wrong-doer. 
 Broom, Max. 939 ; 1 Vem. 19 ; 1 P. Wms. T31 ; 
 1 Ch. Cas. 393. 
 
 In omni actione «W duce concurmnt districtiona, 
 videlicet in rem et in personam, Ula distridUt te- 
 nenda est quce magis timetur et magis ligat. In 
 every action where two distresses concur, that is 
 in rem and in personam, that is to be chosen 
 which is most dreaded, and which binds most 
 firmly. Bract. 372 ; Fleta, 1. 6, c. 14, § 28. 
 
 In omni re nascitur res qua ipsam, rem exter- 
 minat. In every thing, the thing is born which 
 destroys the thing itself. 2 Inst. 15. 
 
 In omnibus contractibus, sive nominatis sUie i«- 
 ttominatis, permutatio continetur. In every con- 
 tract, whether nominate or innominate, there is 
 implied an exchange, i. e. a consideration. 
 
 In omnibus obligafixmiMis, in quibus dies non 
 ponitur, prcesenti die debetw. In all obligations, 
 when no time is fixed for the payment, the thing 
 is due immediately. Dig. 50. 17. 14. 
 
 In omnibus panal'Smi judiciis, et (etati et imptVr 
 dentice succwritur. In all trials for penal of- 
 
MAXIM 
 
 185 
 
 MAXIM 
 
 fences, allowance is made for youth and lack of 
 discretion. Dig. 50. 17. 108 ; Broom, Max. 314. 
 
 In omnibus quidem maxime tamen injure (equi- 
 tas tpectanda nit. In all affairs indeed, but prin- 
 cipally in those which concern the administration 
 of justice, equity should be regarded. Dig. 50. 
 17.90. . 
 
 In pari causa possessor potior haberi debet. 
 When two parties have equal rights, the advan- 
 tage is always in favor of the possessor. Dig. 
 50. 17. 128 ; Broom, Max. 714. 
 
 In pari delicto melior est conditio possidentis. 
 When the parties are equally in the wrong, the 
 condition of the possessor is better. 11 Wheat. 
 258 ; 3 Cra. 244 ; Cowp. 341 ; Broom, Max. 325 ; 
 4 Bouv. Inst. u. 3724. 
 
 In pari delicto potior est conditio defendentis {et 
 possidentis) . Where both parties are equally in 
 fault, the condition of the defendant is prefera- 
 ble. L. R. 7 Ch. 473 ; 11 Mass. 376 ; 101 Mass. 
 150, 364 ; 107 id. 259 ; Broom, Max. 290, 721 et seq. 
 
 In personam actio est, qua cum eo agimus qui 
 obligatus est nobis adfaeiendum aliquid veldandum. 
 The action in personam is that by which we sue 
 him who is under obligation to us to do some- 
 thing or give something. Dig. 44. 7. 25 ; Bract. 
 1016. 
 
 In pcmalibus causis benigniut interpretandum, 
 est. In penal cases, the more favorable interpre- 
 tation is to be made. Dig. 50. 17. 155. 2 ; Plowd. 
 86 6 ; 2 Hale, P. C. 366. 
 
 In prceparatoriis ad judicium favetur actori. 
 In things preparatory before trial, the plaintiff 
 is favored. 2 Inst. 57. 
 
 In prasentia majoris potestatis, minor potestas 
 eessat. In the presence of the superior power, 
 the minor power ceases. Jenk. Cent. 214; 
 Hardw. 28 ; 13 How. 142 ; 13 Q. B. 740. See 
 Broom, Max. Ill, 112. 
 
 In pretio emptionis et venditionis naturajliter 
 licet contrahentibus se circumvenire. In the price 
 of buying and selling, it is naturally allowed to 
 the contracting parties to overreach each other. 
 1 Story, Contr. 606. 
 
 In propria causa nemo judex. No one can be 
 judge in his own cause. 12 Co. 13. 
 
 In quo quia delinquit, in eo dejure est puniendua. 
 In whatever thing one offends, in that he is right- 
 fully to be punished. Co. Litt. 233 b. 
 
 In re eommuni n.eminem dominorum jure faeere 
 Jiuicquam, invito altero, poase. One co-proprietor 
 can exercise no authority over the common prop- 
 erty against the will of the other. Dig. 10. 3. 28. 
 
 In re dubla benigniorem interpretationem sequi, 
 non mvnusjnstius est, quam tutius. In a doubtful 
 case, to follow the milder interpretation is not 
 less the more just than it is the safer course. 
 Dig. 50. 17. 192. 2 ; 28. 4. 3. 
 
 In re dubia magis infleiatio quam afflrmatio in- 
 telligenda. In a. doubtful matter, the negative is 
 to be understood rather than the affirmative. 
 Godb. 37. 
 
 In re lupanari, testes lupanares admittentur. 
 In a matter concerning a brothel, prostitutes are 
 admitted as witnesses. 6 Barb. 320, 824. 
 
 In re pari, potiorem causam esse prohibentia 
 constat. Where a thing is owned in common, it 
 is agreed that the cause of him prohibiting (its 
 use) is the stronger. Dig. 10. 3. 28 ; 3 Kent, 45 ; 
 Pothler, Traiti du Con. de Soc. n. 90 ; 16 Johns. 
 438, 491. 
 
 In re propria iniquum admodum est alieui lieen- 
 tiam tribuere sententice. It is extremely unjust 
 that any one should be judge in his own cause. 
 
 In rebits manifeatis errat qui auctoritates legum 
 allegat ; quia perapicua vera non sunt probanda. 
 He errs who alleges the authorities of law in 
 things manifest; because obvious truths need 
 not be proved. 5 Co. 67. 
 
 In rem actio eat per quam rem nostram quae ab 
 alio possidetur potimus, et semper adversus eum 
 est qui rem possidet. The action in rem is that 
 by which we seek our property which is pos- 
 sessed by another, and is always against him 
 who possesses the property. Dig. 44. 7. 25 ; 
 Bract. 102. 
 
 In repvMica maxime conservanda aunt jura 
 belli. In the state, the laws of war are to be 
 greatly preserved. 2 Inst. 58 ; 8 Allen, 484. 
 
 In restitutionem, non inpomam, hmres succedit. 
 The heir succeeds ' to the restitution, not the 
 penalty. 2 Inst. 198. 
 
 In reatitviioniTkis benignissima interpretatio fa- 
 cienda est. The most lavorable construction is 
 to be made in restitutions. Co. Litt. 112. 
 
 In aatiafactionibus non permittitur amplius fieri 
 quam semM factum est. In payments, more must 
 not be received than has been received once for 
 all. 9 Co. 53. 
 
 In stipndationibua cum quceritur quid actum sit, 
 verba contra stipulatorem interpretanda aunt. In 
 contracts, when the question is what was agreed 
 upon, the terms are to be interpreted against the 
 party offering them. Dig. 45. 1. 38. 18. (Chan- 
 cellor Kent remarks that the true principle ap- 
 pears to be "to give the contract the sense in 
 which the person making the promise believes 
 the other party to have accepted it, if he In fact 
 did so understand and accept it." 2 Kent, 
 721.) 2 Day, 281 ; 1 Duer, Ins. 159, 160 ; Broom, 
 Max. 599. 
 
 In atipuXationibus id tempus apectatur quo eon- 
 trahimua. In agreements, reference is had to 
 the time at which they were made. Dig. 50. 17. 
 144.1. 
 
 In suo quisgue negotio hebetior est quam in 
 alieno. Every one is more dull in his own busi- 
 ness than in that of another. Co. Litt. 377. 
 
 In testamentia plenius testatoris vntentionem 
 scrutamur. In testaments, we should seek dili- 
 gently the will of the testator. (But, B,ays 
 Doddridge, C. J., "this is to be observed with 
 these two limitations: Ist, his Intent ought to 
 be agreeable to the rules of the lawr ; 2d, his 
 intent ought to be collected out of the words 
 of the v^lll." 3 Bulstr. 103.) Broom, Max. 
 555. 
 
 In. testamentis pleniua voluntates testantium in- 
 terpretantur. In testaments, the will of the 
 testator should be liberally construed. Dig. 
 .50. 17. 12 ; Cujac. ad loc. cited 3 Pothler, Pand. 
 46 ; Broom, Max. 568. 
 
 In toto et pars continetur. A part Is included 
 in the whole. Dig. 50. 17. 113. 
 
 In traditioniius scriptorum (ehartarum') non 
 quod dictum est, sed quod geatum (factum') est, in- 
 spicitur. In the delivery of writings (deeds), 
 not what is said but what Is done Is to be con- 
 sidered. 9 Co. 137 ; Leake, Contr. 4. 
 
 In veram quantitatem fidejussor teneatur, nisi 
 pro certa qiuintitate accessit. Let the surety be 
 holden for the true quantity unless he agree for 
 a certain quantity. 17 Mass. 597. 
 
 In verbis non verba sed res et ratio qucerenda 
 est. In words, not the words, but the thing and 
 the meaning is to be inquired after. Jenk. Cent. 
 132. 
 
 In vocibus videndum non u quo sed ad quid 
 sumatur. In discourses, it is to be considered 
 not from what, but to what, it is advanced. 
 EUesmere, Postn. 62. 
 
 Incendium are alieno non exuit debiiorum. A 
 fire does not release a debtor from his debt. 
 Code, 4. 3. 11. 
 
 Incerta pro nullis habentur. Things uncertain 
 are held for nothing. Dav. 33. 
 
 Incerta quantitas vitiat actum. An uncertain 
 quantity vitiates the act. 1 Eolle, 465, 
 
MAXIM 
 
 186 
 
 MAXIM 
 
 Incivile est, nisi tota lege prospecta, una eiiqita 
 partictda ejv* proposita, pidicare, vel respondere. 
 It Is improper, unless the whole law has been ex- 
 amined, to give judgment or advice upon a view 
 of a single clause of it. Dig. 1. 3. 24. See Hob. 
 171a. 
 
 Incivile est nisi tota sententia inspecta, de dliqwa 
 parte judicare. It is improper to pass an opinion 
 on any part of a sentence without examining the 
 whole. Hob. 171. 
 
 JncZusto unius est exdusio alterius. The inclu- 
 sion of one is the exclusion of another. 11 Co. 58. 
 
 Incolas domicilium facit. Residence creates 
 domicil. 1 Johns. Cas. 363, 366. See Domioil. 
 
 Ihcommodum non solvit argumentum. An in- 
 convenience does not solve an argument. 
 
 Incorporalia hello non adquiruntur. Things in- 
 corporeal are not acquired by war. 6 Maule &S. 
 104. 
 
 Jnde data leges ne fortior omnia posset. Laws 
 were made lest the stronger should have unlim- 
 ited power. Dav. 36. 
 
 Indeflnitum cequipollet universali. The unde- 
 fined is equivalent to the whole. 1 Ventr. 368. 
 
 Ind^fmitum supplet locum universalis. The 
 undefined supplies the place of the whole. 4 Co. 
 77. 
 
 Independenter se haiet asseeuratio a viaggio navis. 
 The voyage insured is an independent or distinct 
 thing from the voyage of the ship. 8 Kent, 318, n. 
 
 Index animi sermo. Speech is the index of the 
 mind. Broom, Max. 622. 
 
 Inesse potest donationi, modus, conditio sive 
 causa ; ut modus est ; si conditio ; quia causa. In 
 a gift there may be manner, condition, and cause : 
 as («0) introduces a manner; if (si), a condi- 
 tion ; because {quia) , a cause. Dyer, 138. 
 
 Infans non multum a furioso distat. An infant 
 does not differ much from a lunatic. Bract. 1. 
 3, c. a, § 8 ; Dig. 50. 17. 5. 40 ; 1 Story, Eq. Jur. 
 §§323,234,242. 
 
 Inflnitum in jure reprobatur. That which is 
 infihite or endless is reprehensible in law. 9 Co. 
 45. 
 
 Iniguissima pax est anteponenda justissimo hello. 
 The most unjust peace is to be preferred to the 
 justest war. 18 Wend. 2,57, 305. 
 
 Iniquwm est cdios permittere, alios inhSiere mer- 
 eaturam. It is inequitable to permit some to 
 trade and to prohibit others. 3 Inst. 181. 
 
 Iniquvm est aliquem rei sui esse judicem. It is 
 uqjust for any one to be judge in his own cause. 
 12 Coke, 13. 
 
 Iniquum est ingenuis hominilus non esse liberam 
 rerum suarum alienationem. It is against equity 
 for freemen not to have the free disposal of their 
 own property. Co. Litt. 223. See 1 Bouv. Inst. 
 nn. 455, 460. 
 
 Injuria Jit ei cui convieium dictum est, vel de eo 
 factum carman famosum. An injury is done to 
 him of whom ^ reproachful thing is said, or con- 
 cerning whom an infamous song is made. 9 Co. 
 60. 
 
 Injuria non excusat injuriam. A wrong does 
 not excuse a wrong. Broom, Max. 370, 387, 395 ; 
 11 Exch. 822 ; 15 Q. B. 276 ; 6 E. & B. 76 ; 
 Branch, Prine. 
 
 Injuria non prasumitur. A wrong is not pre- 
 sumed. Co. Litt. 232. 
 
 Irtjv/ria propria non cadet ben^Hum facietitis. 
 No one shall profit by his own wrong. 
 
 Injuria servi dominum pertingit. The master 
 is liable for injury done by his servant. Lofft. 
 229. ' 
 
 Injustum est, nisi tota lege inspecta, de una ali- 
 qua ejus particula proposita jtidicare vel respondere. 
 It is unjust to give judgment or advice concern- 
 
 ing any particular clause of a law without having 
 examined the whole law. 8 Co. 117 6. 
 
 Insanu^ est qui, ahjecta ratione, omnia cum im- 
 petu et furore facit. He is Insane who, reason 
 being thrown away, does every thing with vio- 
 lence and rage. 4 Co. 128. 
 
 Instans est finis imius temporis et principium 
 alterius. An instant is the end of one time and 
 the beginning of another. Co. Litt. 185. 
 
 IntentU) caeca mala. A hidden intention is bad 
 2 Bulstr. 179. 
 
 Intentio inservire debet legibus, non leges intm- 
 tioni. Intentions ought to be subeei-vient to the 
 laws, not the laws to intentions. Co. Litt. 314. 
 
 Intentio mea imponit nomen operi meo. My in- 
 tent gives a name to my act. Hob. 123. 
 
 Inter alias causas acguisitiones magna, Celebris, 
 et famosa est causa donationis. Among other 
 methods of acquiring property, a great, much- 
 used, and celebrated method is that of gift, 
 Bract. 11. 
 
 Inter alios res gestas aliis non posse prcejudieium 
 faeere scepe constitutum est. It has been often 
 settled that things which took place between 
 other parties cannot prejudice. Code, 7. 60. 1. 2. 
 
 Interdumevenit ut exceptioquce prima fade jrnta 
 videtur, tamen inique noceat. It sometimes hap- 
 pens that a plea which seems prima fade just, 
 nevertheless is Injurious and unequal. Inst. i. 
 14 ; 4. 14. 1. 3. 
 
 interest rdpublicce ne malefida remaneant im- 
 punita. It concerns the commonwealth that 
 crimes do not remain unpunished. Jenk. Cent, 
 30, 31. 
 
 Interest reipublica ne sua quis male utatur. It 
 concerns the commonwealth that no one misuse 
 his property. 6 Co. 36. 
 
 Interest reipublicce quod homines conserventw. 
 It concerns the commonwealth that men be pre- 
 served. 13 Co. 62. 
 
 Interest reipvMicce res judicatas non resdndi. 
 It concerns the commonwealth that things ad- 
 judged be not rescinded. See Res Judicata. 
 
 Interest reipublicce suprema hominum testamenta 
 rata hdberi. It concerns the commonwealth that 
 men's last vrills be sustained. Co. Litt. 236. 
 
 Interest reipublicce ut carceres smt in tuto. It 
 concerns the commonwealth that prisons be se- 
 cure. 3 Inst. 587. 
 
 Interest reipublictx ut pax in regno conservetur, 
 et qucecunque pad adversentur provide declinenturm 
 It benefits the state to preserve peace in the king- 
 dom, and prudently to decline whatever is ad- 
 verse to it. 2 Inst. 158. 
 
 Interest reipublieaut quilihet re sua bene utatttr. 
 It concerns the commonwealth that every one 
 use his property properly. 6 Co. 37. 
 
 Interest reipublica ut sit finis litium. It con- 
 cerns the commonwealth that there be a limit to 
 litigation. Broom, Max. 331, 343, 893 n. ; Co. 
 Litt. 303 ; 7 Mass. 432: 16 Gray, 37: 99 Mass. 
 303 ; 88 Penn. 506. 
 
 Interpretare et concordare leges legibus est optir- 
 mus interpretandi modus. To interpret and recon- 
 cile laws so that they harmonize is the best mode 
 of construction. 8 Co. 169. 
 
 Interpretatio flenda est ut res magis valeat qaam 
 pereat. Such a construction is to be made that 
 the subject may have an eflect rather than none. 
 Broom, Max. 543 : Jenk. Cent. 198 : 78 Penn. 
 319. 
 
 Interpretatio talis ambiguis semper fienda est, vt 
 evitetur ineonveniens et absurdum. In ambiguons 
 things, such a construction should be made, that 
 what is inconvenient and absurd may be avoided. 
 4 Inst. 338. 
 
 Interruptio multiplex non tollit prcescriptionm 
 semel obtentam. Repeated interruptions do not 
 defeat a prescription once obtained. 8 Inst. 654. 
 
MAXIM 
 
 187 
 
 MAXIM 
 
 Intestatus decedit, qui out omnino teaiamentum 
 non fecit aut non Juri fecit, aut id quod feeerat 
 ruptum irritumve factum est, aut nemo ex eo hceret 
 exstitit. He dies intestate who either has made 
 no will at all or has not made it legally, or whose 
 will which he had made has heen annulled or 
 become ineffectual, or from whom there is no 
 living heir. Inst. 3. 1. pr. ; Dig. 38. 16. 1 ; 50. 
 
 16.64:. 
 
 TmtUis labor, et sine fruetu, 7ion est effectiis 
 legis. Useless labor and without fruit is not the 
 effect of law. Co. Litt. 137 ; Wing. Max. 38. 
 
 Inveni^ns libellum famosum et non corrumpens 
 punitur. He who finds a libel and does not de- 
 stroy it, is punished. F. Moore, 813. 
 
 Invito benefleium non datur. No one Is obliged 
 to accept a benefit against his consent. Dig. SO. 
 17. 69 ; Broom, Max. 699 n. (But if he does not 
 dissent, he will be considered as assenting. See 
 Assent. ) 
 
 Ipsre leges cupiunt ut jure regantur. The laws 
 themselves desire that they should be governed 
 by right. Co. Litt. 174 6, quoted from Cato ; 3 
 Co. 35 6. 
 
 Irafurm- brevis est. Anger is a short insanity. 
 i Wend. 336, 3.55. 
 
 Jta lex scripta est. The law Is so written. 36 
 Barb. 374, 380 ; 18 Penn. 306. See 33 Pick. 389. 
 
 Ita semper fiat relatio ut valeat dispositio. Let 
 the relation be so made that the disposition may 
 stand. 6 Co. 76. 
 
 Iter est jus eundi, ambulandi Tiominis; non 
 etiam jumentum agendi vel vehieulum. A way is 
 the right of going or walking, and does not in- 
 clude the right of driving a beast of burden or 
 a carriage. Co. Litt. 56 a ; Inst. 3. 3. pr. ; 1 
 Mack. Civ. Law, 343, § 314. 
 
 Judex cequitatem semper spectare debet. A judge 
 ought always to regard equity. Jenk. Cent. 45. 
 
 Judex ante oculos cequitatem semper habere debet. 
 A judge ought always to have equity before his 
 eyes. Jenk. Cent. 58. 
 
 Judex bonus nihil ex arbitrio »uofaciat, nee pro- 
 positione domesticce voluntatis, sed juxta leges et 
 jura pronunciet. A good judge should do noth- 
 ing from his own arbitrary will, or from the dic- 
 tates of his private wishes ; but he should pro- 
 nounce according to law and justice. 7 Co. 37 a. 
 
 Judex damnatur cum nocens absolvitur. The 
 judge is condemned when the guilty are acquitted. 
 
 Xulex debet judicare secundum allegata et pro- 
 bata. The judge ought to decide according to 
 the allegations and the proois. 
 
 Judex est lex loquens. The judge Is the speak- 
 ing law. 7 Co. 4 a. 
 
 Judex habere debet duos sales, salem sapientia, 
 ne sit insipidus, et salem conscientice, ne sit diabo- 
 lut, A judge should have two salts : the salt of 
 wisdom, lest he be foolish ; and the salt of con- 
 science, lest he be devilish. 3 Inst. 147. 
 
 Jiidex non potest esse testis in propria causa. A 
 judge cannot be a witness in his own cause. 4 
 Inst. 379. 
 
 Judex non potest injuriam sibi datam ptmire. A 
 judge cannot punish a wrong done to himself. 
 13 Co. 114. 
 
 Jiidex non reddit plus quam quod petens ipse re- 
 quirit. The judge does not give more than the 
 plaintiff demands. 3 Inst. 386, case 84. 
 
 Judieandum est legibus non exemplis. We are 
 to judge by the laws, not by examples. 4 Co. 
 33 6; 4 Bla. Com. 405 ; 19 Johns. 513. 
 
 Judices non tenentur exprimere eausam sententia 
 mcB. Judges are not bound to explain the reason 
 of their sentence. Jenk. Cent. 75. 
 
 Judici officium mum exeedenti non paretur. To 
 a judge who exceeds hie oflSce (or jurisdiction) 
 no obedience is due. Jenk. Cent. 139. 
 
 Judici satis poena est quod Deum habet ultorem. 
 It is punishment enough for a judge that he is 
 responsible to God. 1 Leon. 395. 
 
 Judida in curia regis non adnihUentur, sed stent 
 in robore »uo quousque per errorem aut attinctum 
 adnullentur. Judgments in the king's courts are 
 not to be annihilated, but to remain in force un- 
 til annulled by error or attaint. 3 Inst. 539. 
 
 Judida in deliberationibus crebro matureseunt, 
 in acaelerato processu nunquam. Judgments fre- 
 quently become matured by deliberation, never 
 by hurried process. 3 Inst. 310. 
 
 Judida posteriora sunt in lege fortiora. The 
 later decisions are stronger in law. 8 Co. 97. 
 
 Judida sunt tanquam juris dicta, et pro veritate 
 accipiuntur. Judgments are, as it were, the dicta 
 or sayings of the law, and are received as truth. 
 3 Inst. 537. 
 
 Judidis posteriorlbus fides est adhibenda. Faith 
 or credit is to be given to the later decisions. 
 13 Co. 14. 
 
 Judicis est in pronuntiando sequi regtilam, ex- 
 ceptione non probata. The judge in his decision 
 ought to follow the rule, when the exception is 
 not proved. 
 
 Judids est judicare secundum allegata et probata. 
 A judge ought to decide according to the allega- 
 tions and proofs. Dyer, 13 a; Halkers, Max. 73. 
 
 Judicis esjus dieere non dare. It is the duty of 
 a judge to declare the law, not to enact It. Lofft, 
 43. 
 
 Judicis offidum est opus did in die suo perflcere. 
 It is the duty of a judge to finish the work of 
 each day within that day. Dyer, 13. 
 
 Judicis offlcium est ut res ita tempora rerum 
 qucerere, qucesito tempore tutus eris. It is the duty 
 of a judge to inquire the times of things, as well 
 as into things ; by inquiring Into the time you 
 will be safe. Co. Litt. 171. 
 
 Judicium a non suojudice datum nuUius est mo- 
 menti. A judgment rfven by an improper judge 
 is of no moment. 10 Co. 76 6 ; 3 Q. B. 1014 : 
 13 id. 143 ; 14 M. & W. 134 ; 11 CI. & F. 610 ; 
 Broom, Max 93. 
 
 Judidum. est quasi juris dictum,. Judgment is 
 as it were a saying of the law. Co. Litt. 168. 
 
 Judicium non debet esse Ulusorium, suum effee- 
 tum habere debet. A judgment ought not to be 
 illusory, it ought to have its proper effect. 2 
 Inst. 341. 
 
 Judieiiim redditur in invitum, in prcesumptione 
 legis. In presumption of law, a judgment is 
 given against inclination. Co. Litt. 348 b, 314 b. 
 
 Judicium semper pro veritate accipitur. A 
 judgment it always taken for truth. 3 Inst. 380 ; 
 17 Mass. 337. 
 
 Juncta juvant. Things joined have effect. 11 
 East, 330. 
 
 Jura eeclesiastica limitata sunt infra limites sepa- 
 rates. Ecclesiastical laws are limited within 
 separate bounds. 3 Bulstr. 53. 
 
 Jwa eodem mmlo destituuntur quo constituuntur. 
 Laws are abrogated or repealed by the same 
 means by which they are made. Broom, Max. 878. 
 
 Jura natures sunt immutabilia. The laws of 
 nature are unchangeable. Branch, Frinc. ; Oliver, 
 Forms, 56. 
 
 Jurapubliea anteferendaprivatis. Public rights 
 are to be preferred to private. Co. Litt. 130. 
 
 Jura publica ex privato promiscue decidi non de- 
 bent. Public rights ought not to be decided pro- 
 miscuously with private. Co. Litt. 181 b. 
 
 Jura regis spedalia non conceduntur per gener- 
 alia verba. The special rights of the king are not 
 granted by general words. Jenk. Cent. 103. 
 
 Jura sanguinis nuUo jure dvili dirimi possunt. 
 The right of blood and kindred cannot be de- 
 stroyed by any civil law. Dig. 50. 17. 9 ; Bacon, 
 Max. Beg. 11 ; Broom, Max. 533 ; 14 Allen, 562. 
 
MAXIM 
 
 188 
 
 MAXIM 
 
 Jiiramentum est indivisibUe, et non est admitten- 
 dum in parte verum et in parte falmm. An oath 
 is indivisible ; it is not to be lield partly true and 
 partly false. 4 Inst. 274. 
 
 Jurare est Dernn in testum vocare, et est actus di- 
 vini cultus. To swear is to call God to witness, 
 and is an act of religion. 3 Inst. 16.5. See 3 
 Bouv. Inst. 3180, note ; 1 Benth. Ev. 376, 371, 
 note. 
 
 Juratur creditur in judicio. He who makes 
 oath Is to be believed in judgment. 3 Inst. 79. 
 
 Juratores debent esse vidni, sufflcientes et minus 
 suspeeti. Jurors ought to be neighbors, of suffi- 
 cient estate, and free from suspicion. Jenk. 
 Cent. 141. 
 
 Juratores sunt judices faeti. Jurors are the 
 judges of the facts. Jenk. Cent. 68. 
 
 Jure natures cequum est^ n^eminem cum aiterwis 
 detrimento, et injuria fieri locupletiorem. Accord- 
 ing to the laws of nature, it is just that no one 
 should be enriched with detriment and injury to 
 another (i. «. at another's expense). Dig. 50. 
 17. 200. 
 
 Juri non est consonum quod aliquis aceessorius 
 in curia regis convincatur antequam aliquis de 
 facto fuerit attinctus. It is not consonant to jus- 
 tice that any accessoiy should be convicted in 
 the king's court before any one has been attainted 
 of the fact. 2 Inst. 183. 
 
 Juris effectus in executione consistU. The effect 
 of a law consists in the execution. Co. Litt. 
 289 6. 
 
 Juris ignorantia est, cum jus nostrum ignoramtts. 
 It is ignorance of the law when we do not know 
 our own rights. 9 Pick. ISO. 
 
 Juris prcecepta sunt hcee, honeste vivere, alteram 
 non ladere, suum. cuique tribuere. These are the 
 precepts of the law, to live honorably, to hurt 
 nobody, to render to every one his due. Inst. 1. 
 1. 3 ; Sharsw. Bla. Com. Introd. 40. 
 
 Jurisdietio estpotestas de publico introducta, cum 
 necessitate juris dicendi. Jurisdiction is a power 
 Introduced for the public good, on account of the 
 necessity of dispensing justice. 10 Co. 73 a. 
 
 Jurisprudentia est divinarum atque humanarum 
 rerum notitia ; justi atque injusti scientia. Juris- 
 prudence is the knowledge of things divine and 
 human ; the science of the just and the unjust. 
 Dig. 1. 1. 10. 2 ; Inst. 1. 1. 1 : Bract. 3 : 8 Johns. 
 290, 293. 
 
 Jurisprudentia legis communis Anglice est scien- 
 tia socialis et copiosa. The jurisprudence of the 
 common law of England is a science sociable and 
 copious. 7 Co. 28 a. 
 
 Jtui aeerescendi inter mercatores locum non Tiabet, 
 pro ben^/icio commercii. The right of survivor- 
 ship does not exist among merchants, for the 
 benefit of commerce. Co. Litt. 182 ; 1 Bouy. 
 Inst. n. 688 ; Broom, Max. 455 : Lindl. Part. 4th 
 ed. 664. 
 
 Jus aeerescendi prcefertur oneribus. The right 
 of survivorship is preferred to incumbrances. Co. 
 Litt. 185. 
 
 Jus aeerescendi prafertur vUimce voluntati. The 
 right of survivorship is preferred to a last will. 
 Co. Litt. 185 5. 
 
 Jus civile est quod sibi populus constituU. The 
 civil law is what a people establishes for itself. 
 Inst. 1. 2. 1; 1 Johns. 424,' 426. 
 
 Jus deseendit, et non terra. A right descends 
 not the land. Co. Litt. 345. 
 
 As dieere, et non jus dare. To declare the law, 
 not to make it. 7 Term, 696 ; Arg. 10 Johns 
 566 ; 7 Exch. 543 ; 2 Eden, 29 : 4 C. B. 660, 561 : 
 Broom, Max. 140. 
 
 Jus est ars boni et cequi. Law is the science of 
 what is good and just. Dig. 1. 1. 1. 1. 
 
 Jus est norma recti ; et quicquid est contra nor- 
 mam recti est injuria. The law Is the rule of 
 
 right ; and whatever is contrary to the rule of 
 right is an injury. 8 Bulstr. 313. 
 
 Jus etfraus nunquam cohabitant. Kight and 
 fraud never live together. 10 Co. 45. 
 
 Jus ex injuria non oritur, A right cannot 
 arise from a wrong. 4 Bingh. 639 ; Broom, Max. 
 738 n. 
 
 Jus in re inhcerit ossiJMS usufructuarii. A right 
 in the thing cleaves to the person of the usufruc- 
 tuary. 
 
 Ju^ naturale est quod apud homines eandem 
 habet potentiam. Natural right is that which has 
 the same force among all mankind. 7 Co. 13. 
 
 .7ms non hdbenti tute non paretur. It is safe 
 not to obey him who has no right. Hob. 146. 
 
 Jus publicum privatorum pactis mutari turn po- 
 test. A public right cannot be changed by agree- 
 ment of private parties. 
 
 ■7ms quo universitates utumtur, est idem qnoi 
 habent privati. The law which governs corpora- 
 tions is the same which governs individuals. 16 
 Mass. 44. 
 
 Jus respicit cequitatem. Law. regards equity. 
 Co. Litt. 34 6 ; Broom, Max. 151 ; 17 Q. B. 292. 
 
 Jus superveniens auctori accressit successoti, A 
 right growing to a possessor accrues to a succes- 
 sor. Halker, Max. 76. 
 
 Jus vendit quod usus approbavit. The law dis- 
 penses what use has approved. Ellesmere, 
 Postn. 35. 
 
 Jusjurandi forma verbis differt, re convenit; 
 hunc enim sensum habere debet, ut Deus invocetur. 
 The form of taking an oath differs in language, 
 agrees in meaning ; for it ought to have this 
 sense, that the Deity is invoked. Grotiue, b. 2, 
 c. 13, s. 10. ' ' 
 
 Jusjurandum inter alios factum nee nocere nee 
 prodesse debet. An oath made in another canse 
 ought neither to hurt nor profit. 4 Inst. 279. 
 
 Justitia debet esse libera, quia nihil iniqaivs 
 venali justitia; plena, quia justitia non dd)et 
 claudicare ; et celekis, quia dHatio est qwsdam 
 negatio. Justice ought to be uribought, because 
 nothing is more hateful than venal justice ;/kJ!, 
 for justice ought not to halt ; and quick, for de- 
 lay is a kind of denial. 2 Inst. 56. 
 
 Justitia est eonstans et perpetua volimtas jut 
 suum cuique tribuendi. Justice is a steady and 
 unceasing disposition to render to every man his 
 due. Inst. 11. pr. ; Dig. 1. 1. 10. 
 
 Justitia est virtus exceUens et Altissimo eompla- 
 cens. Justice is an excellent virtue and pleasing 
 to the Most High. 4 Inst. 58. 
 
 Justitia flrmatur solium. By justice the 
 throne is established. 3 Inst. 140. 
 
 Jtistitia nemini neganda est. Justice is to be 
 denied to none. Jenk. Cent. 178. 
 
 Justitia non est neganda, non differenda. Justice 
 is not to be denied nor delayed. Jenk. Cent. 76. 
 
 Justitia non no^ patrem nee matrem, sdhm 
 veritatem spectat justitia. Justice knows neither 
 father nor mother, justice looks to truth alone. 
 1 Bulstr. 199. 
 
 Jtistum non est aliquem antenatum mortmtm fa- 
 cere bastardum, qui pro tota vita sua pro legifimD 
 habetur. It is not just to make a bastard after 
 his death one elder bom who all his life has been 
 accounted legitimate. 8 Co. 101. 
 
 L'obligation sans cause, ou sur unefmtsse eame, 
 ou sur cause iUicite, ne peut avoir aueim ejfet. An 
 obligation without consideration, or upon a false 
 consideration (which fails), or upon unlawful 
 consideration, cannot have any effect. Code, 3. 
 3. 4 ; Chitty, Contr. 11th Am. ed. 25, note. 
 
 L'ou le ley done chose, la ceo done remedie a veiur 
 a ceo. Where the law gives a right, it gives a 
 remedy to recover. 2 BoUe, 17. 
 
MAXIM 
 
 189 
 
 MAXIM 
 
 La conscience est la plus changeante des rtgles. 
 Conscience is the most changeable of rules. 
 
 La ley favour la vie d'un home. The law favors 
 a man's life. Tear B. Hen. VI. 51. 
 
 La ley favour I'inlieritance d'un home. The law 
 favors a man's inheritance. Year B. Hen. VI. 
 51. 
 
 La ley voit plus tost suffer un mischiefe que un 
 inconvenience. The law will sooner sutfer a 
 mischief than an inconvenience. Littleton, § 
 S31. 
 
 Lata culpa dolo cequiparatur. Gross negligence 
 Is equal to fraud. 
 
 Law eonstnieth every act to ie lawful wfien it 
 standeth indifferent whether it he lawful or not. 
 Wing. Max. 194 ; Finch, Law. 
 
 Law construeth things according to common possi- 
 Mity or intendment. Wing. Max. 189. 
 
 Lam construeth things to the best. Wing. Max. 
 193. 
 
 Law construeth things with equity and modera- 
 tion. Wing. Max. 183 ; Finch, Law, 74. 
 
 Law disfavoreth impossibilities. Wing. Max. 
 165. 
 
 Law disfavoreth improbaiilities. Wing. Max. 
 161. 
 
 Lawfavoreth charity. Wing. Max. 135. 
 
 Lawfavoreth common right. Wing. Max. 144. 
 
 Law favoreth diligence, and therefore hateth 
 folly and negligence. Wing. Max. 173 ; Finch, 
 Law, b. 1, 0. 3, n. 70. 
 
 Law favoreth honor and order. Wing. Max. 
 199. 
 
 Law favoreth justice and right. Wing. Max. 
 141. 
 
 Lawfavoreth life, liberty, and dower. 4 Bacon, 
 Works, 345. 
 
 Lawfavoreth mutual recompense. Wing. Max. 
 WO ; Finch, Law, b. 1, o. 3, n. 42. 
 
 Law favoreth possession where the right is eqtial. 
 Wing. Max. 98 ; Finch, Law, b. 1, c. 3, n. 36. 
 
 Law favoreth public commerce. Wing. Max. 
 198. 
 
 Law favoreth public quiet. Wing. Max. 200 ; 
 Finch, Law, b. 1, c. 3, n. 54. 
 
 Lawfavoreth speeding of men's causes. Wing. 
 Max. 175. 
 
 Law favoreth things for the commonwealth. 
 Wing. Max. 197 ; Finch, Law, b. 1, c. 3, n. 53. 
 
 Law favorethtruth, faith, andcertainty. Wing. 
 Max. 154. 
 
 Law hateth delays. Wing. Max. 176 ; Finch, 
 Law, b. 1, c. 3, n. 71. 
 
 Law hateth new inventions and innovations. 
 Wing. Max. 204. 
 
 Law hateth wrong. Wing. Max. 146 ; Finch, 
 Law, b. 1, c. 3, n. 62. 
 
 Law of itself prejudiceth no man. TVing. Max. 
 148 ; Finch, Law, b. 1, c. 3, n. 63. 
 
 Law respeeteth matter of substance more than 
 matter of circumstance. Wing. Max. 101 ; Finch, 
 Law, b. 1, c. 3, n. 39. 
 
 Law respeeteth possibility of things. Wing. 
 Max. 104 ; Finch, Law, b. 1, c. 3, n. 40. 
 
 Law respeeteth the bonds of nature. Wing. 
 Max. 78 ; Finch, Law, b. 1, c. 3, n. 29. 
 
 Lawful things are well mixed, unless a form of 
 law oppose. Bacon, Max. Reg. 23. (I'Ae law 
 giveth thatfavovjr to lawful acts, that although they 
 be executed by several authorities, yet the whole act 
 is good. la. ibid.) 
 
 Le contrat fait la loi. The contract makes the 
 law. 
 
 Le ley de Dieu et ley de terre sont tout un, et I'un 
 et V autre preferre et favour le common et pvblique 
 Men del terre. The law of God and the law of 
 the land are all one ; and both preserve and 
 fevor the common and public good of the land. 
 Keilw. 191, 
 
 Le ley est le plus haul inheritance que le roy ad, 
 car par le ley, il mesme et touts ses sujects sont 
 rules, et si le ley nefuit,nul roy ne nul inheritance 
 serra. The law is the highest inheritance that__ 
 the king possesses ; for by the law both he and^ 
 all his subjects are ruled ; and if there were no 
 law, there would be neither king nor inheritance. 
 
 Le salut dupeuple est la svprime loi. The safety 
 of the people is the highest law. Montes. Esp. 
 Lois, 1. xxvil. oh. 23 ; Broom, Max. 2 n. 
 
 Legatos violare contra jus gentium est. It is 
 contrary to the law of nations to do violence to 
 ambassadors. Branch, Princ. 
 
 Legatum morte testatoris tantum confirmatur, 
 sicut donatio inter vivos traditione sola. A legacy 
 is confirmed by the death of the testator, in the 
 same manner as a gift from a living person is by 
 delivery alone. Dyer, 143. 
 
 Legatus, regis vice fungitur a quo destinatur, et 
 honoran^us est sicut ille eujus vicem gerit. An 
 ambassador fills the place of the king by whom 
 he is sent, and is to be honored as he is whose 
 place he fills. 12 Co. 17. 
 
 Legem enim, contractus dot. The contract makes 
 the law. 23 Wend. 215, 233. 
 
 Legem terrce amittentes perpetuam infamies no- 
 tam inde merito incurrunt. Those who do not 
 preserve the law of the land, then justly incur 
 the ineffaceable brand of infamy. 3 Inst. 221. 
 
 Leges Anglice sunt tripartitce : jus commune, con- 
 suetudines, ac decreta eomitiorum. The laws of 
 England are threefold : common law, customs, 
 and decrees of parliament. 
 
 Leges Jigendi et refigendi consuetudo est periculo- 
 sissima. The custom of making and unmaking 
 laws is a most dangerous one. 4 Co. pref. 
 
 Leges humance nascuntur, mmmt, et moriuntur. 
 Human laws are born, live, and die. 7 Co. 25 ; 
 3 Atk. 674 ; 11 C. B. 767 ; 1 Bla. Com. 89. 
 
 Tjcges naturae perfectissimoe sunt et immutabUes ; 
 humani vero juris conditio semper in infinitum, de- 
 currit, et nihU est in eo quod perpetuo stare possit. 
 Leges humsince nascuntur, vivunt, moriuntur. The 
 laws of nature are most perfect and immutable ; 
 but the condition of human law is an unending 
 succession, and there is nothing in it which can 
 continue perpetually. Human laws are bom, 
 live, and die. 7 Co. 25. 
 
 Leges non verbis sed rebus sunt impositce. Laws 
 are imposed on things, not words. 10 Co. 101. 
 
 Leges posteriores priores contrarias dbrogant. 
 Subsequent laws repeal prior conflicting ones. 
 Broom, Max. 27, 39 ; 2 EoUe, 410 ; 11 Co. 636, 
 630 ; 12 Allen, 434. 
 
 Leges suum ligent latorem. Laws should bind 
 the proposers of them. Fleta, b. 1, c. 17, § 11. 
 
 Leges vigilantibus, non dormientibus subveniunt. 
 The laws aid the vigilant, not the negligent. 5 
 Johns. Ch. 122, 145 ; 16 How. Pr. 142, 144. 
 
 Legibus sumptis desinentibus, lege natures uten- 
 dum est. When laws imposed by the state fail, 
 we must act by the law of nature. 3 Eolle, 298. 
 
 Legis constructio nonfacit injuriam. The con- 
 struction of law does no wrong. Co. Litt. 183. 
 
 Legis flgendi et refigendi consuetudo periculosis- 
 sima est. The custom of fixing and reiixing 
 (making and annulling) laws Is most dangerous. 
 
 Legis inierpretatio legis vim obtinet. The con- 
 struction of law obtains the force of law. 
 Branch, Princ. 
 
 Legis minister non tenetur, in exeeutione officii 
 sui, fugere aut retrocedere. The minister of the 
 law is not bound, in the execution of his office, 
 either to fly or retreat. 6 Co. 68. 
 
 Legislai&rum est viva vox, rebus et non verbis 
 legem imponere. The voice of legislators is a 
 living voice, to impose laws on things and not on 
 words. 10 Co. 101. 
 
 Legitime imperanti parere necesse est. One who 
 
MAXIM 
 
 190 
 
 MAXIM 
 
 commands lawfully must be obeyed. Jenk. 
 Cent. 120. 
 
 Les flctiom naissent de la loi, et non la loi des 
 fictions. Fictions arise from the law, and not 
 law from fictions. 
 
 Les lois ne se ehargent de punir que leg actiont 
 exterieures. Laws do not undertake to punish, 
 other than outward actions. Montes. Esp. Lois, 
 b. 12, c. 11 ; Broom, Max. 311. 
 
 Lex cequitate gaudet; appetit perfectum; est 
 nm-ma recti. The law delights in equity : it covets 
 perfection ; it is a rule of right. Jenk. Cent. 36. 
 
 Zex aliqiumdo sequitur cequitatem. The law 
 sometimes follows equity. 8 Wils. 119. 
 
 Lex Anglice est lex misericordiee. The law of 
 England is a law of mercy. 3 Inst. 315. 
 
 Lex Anglice non patitur ahsurdum. The law of 
 England does not suffer an absurdity. 9 Co. 23. 
 
 Lex Anglice nunquam matris sed semper patris 
 conditionem imitari partum judical. The law of 
 England rules that the offspring shall always 
 follow the condition of the father, never that of 
 the mother. Co. Litt. 133. 
 
 Lex Anglice nunquam sine parliamento mutari 
 potest. The law of England cannot be changed 
 but by parliament. 2 Inst. 218, 619. 
 
 Lex beTieJicialis rei consimUi remedium prcestat. 
 A beneficial law affords a remedy in a similar 
 case. 2 lust. 689. 
 
 Lex citius tolerare vidt privatum damnum quam 
 publicum malum. The law would rather tolerate 
 a private loss than a public evil. Co. Litt. 152 b. 
 
 'Lex contra id quod prasumit, probationem non 
 recipit. The law admits no proof against that 
 which it presumes. Lofft, 573. 
 
 Lex de futuro, judex de pralerilo. The law 
 provides for the future, the judge for the past. 
 
 Lex deficere non potest in justitia exhibenda. The 
 law ought not to fail in dispensing justice. Co. 
 Litt. 197. 
 
 Lex dilationes semper exhorret. The law always 
 abhors delay. 2 Inst. 240. 
 
 Lex est ab cetemo. The law is from everlasting. 
 Branch, Princ. 
 
 Lex est dictam^n rationis. Law is the dictate 
 of reason. Jenk. Cent. 117. 
 
 Lex est norma recti. Law is a rule of right. 
 
 IjCx est ratio summa, quce jubet quce sunt utUia 
 et necessaria, et contraria prohibet. Law is the 
 perfection of reason, which commands what is 
 useful and necessary, and forbids the contrary. 
 Co. Litt. 319 b. 
 
 Lex est sanctio sa/neta^juhens Tionesta, et prohibene 
 contraria. Law is a sacred sanction, commanding 
 what is right and prohibiting the contrary. 2 
 Inst. 587 ; 1 Sharsw. Bla. Com. 44 n. 
 
 Lex est tutissima cassis ; sub clypeo legis nemo 
 decipitur. Law is the safest helmet ; under the 
 shield of the law no one is deceived. 2 Inst. 56. 
 
 Lex favet doti. The law favors dower. 3 & 4 
 Will. IV. c. 105. 
 
 Lex fingit ubi subsistit eequitas. Law feigns 
 where equity subsists. 11 Co. 90; Branch, 
 Princ. 
 
 Lex intendit vicinum vicini facta scire. The law 
 presumes that one neighbor knows the actions 
 of another. Co. Litt. 78 b. 
 
 Lex necessitatis est lex temporis, I. e., instanfis. 
 The law of necessity is the law of time, that is, 
 time present. Hob. 159. 
 
 Lex neminem cogit ad vana seu inntilia pera- 
 genda. The law forces no one to do vain or 
 useless things. Wing. Max. 600 ; Broom, Max. 
 252 ; 3 Sharsw. Bla. Com. 144 ; 2 Bingh. N. o. 
 131 ; 13 East, 420 ; 15 Pick. 190 ; 7 Cush. 43, 
 893 ; 14 Gray, 78 ; 7 Penn. 206, 214 ; 3 Johns. 
 598. 
 
 Lex neminem cogit ostendere quod netcire prce- 
 
 sumUur. The law forces no one to make known 
 what he is presumed not to know. Lofft, 669, 
 
 Lex nemini fadt injuriam. The law does 
 wrong to no one. Branch, Princ; 66 Penn. 157 
 
 Lex nemini operatur iniquum, nemini facit :V 
 juriam,. The law never works an injury, or doM 
 a wrong. Jenk. Cent. 22. 
 
 Lex n'U facit frustra, nil jubet frustra. The law 
 does nothing and commands nothing in vain 
 Broom, Max. 353 ; 3 Bulstr. 279 ; Jenk. Cent' 
 17. 
 
 Lex non cogit ad impossibUia. The law requires 
 nothing impossible. Broom, Max. 242 ; Co. Litt 
 231 b ; Hob. 96 ; 1 Bouv. Inst. n. 851 ; 17 N h' 
 411 ; 55 id. 211. 
 
 Lex noti curat de minimis. The law does not 
 regard small matters. Hob. 88. 
 
 Lex non deflcU in justitia exhibenda. The law 
 does not fail in showing justice. Jenk. Cent 
 31. 
 
 Zex non exacte d^nit, sed arbitrio boni i/i!i{ 
 permittit. The law does not define exactly, but 
 trusts in the judgment of a good man. 9 Mass. 
 475. 
 
 Lex non favet votis delieatorum. The law favors 
 not the wishes of the dainty. 9 Co. 58 o ; Broom, 
 Max. 379. 
 
 Lex non intendit aliquid impossibHe. The law 
 Intends not any thing impossible. 12 Co. 89 a. 
 
 Lex non patitur fractimies et divisiones statuum. 
 The law suffers no fractions and divisions of 
 estates. 1 Co. 87 ; Branch, Princ. 
 
 Lex non prcedpit inutUia, quia inutSit labor 
 stultus. The law commands not useless things, 
 because useless labor is foolish. Co. Litt.lK'; 
 5 Co. 89 a ; 112 Mass. 400. 
 
 Lex non requirit verijlcari quod apparet curim. 
 The law does not require that to be proved 
 which is apparent to the court. 9 Co. 54, 
 
 Lex plus laudatur quando rations probatur. The 
 law is the more praised when it is consonant with 
 reason. 3Term, 146 ; 7 id. 2.52 ; 7 A. & E. 657 ; 
 Broom, Max. 159. 
 
 Lex posterior derogat priori. A prior statute 
 shall give place to a later. Mack. Civ. Law, 5; 
 Broom, Max. 37, 38. 
 
 Lex prospidt, non respidt. The law looks for- 
 ward, not backward. Jenk. Cent. 284, See 
 Retrospective. 
 
 Lex punit mendaciam. The law panishea 
 falsehood. Jenk. Cent. 15. 
 
 Lex rejidt superjlua, pugnantia, incongna. 
 The law rejects superfluous, contradictory, and 
 incongruous things. Jenk. Cent. 133, 140, 176. 
 
 Lex reprobat moram. The law disapproves of 
 delay. 
 
 Lex respidt cequitatem. Law regards equity, 
 See 14 Q. B-, 504, 511, 512 ; Broom, Max. 151, 
 
 Lex semper dabit remedium. The law will 
 always give a remedy. 3 Bouv. Inst, n, 2411 ; 
 Bacon, Abr. Actions in General (B) ; Branch, 
 Princ. ; Broom, Max. 192 ; 13 A. & E. 266 ; 7 Q, 
 B. 451 ; 5 Eawle, 89. 
 
 Lex semper intendit quod convenit ratiom. The 
 law always intends what is agreeable to reason, 
 Co. Litt. 78. 
 
 Lex spectat naturce ordinem. The law regards 
 the order of nature. Co. Litt. 197; Broom, 
 Max. 252. 
 
 Lex sucewrrit ignoranti. The law succors the 
 ignorant. Jenk. Cent. 15. 
 
 Lex suf.eurrit minoribus. The law assists minors, 
 Jenk. Cent. 57. 
 
 Lex wno ore omnes cdloquUur. The law speaks 
 to all with one mouth. 3 Inst. 184. 
 
 Lexvigilantibus non dormierdfbus mibvenU. 1" 
 assists the wakeful, not the sleeping. 1 Story, 
 Contr. § 529. 
 
 lAberata peeania non liberal offerentem. MoneT 
 
MAXIM 
 
 191 
 
 MAXIM 
 
 being restored does not set free the party offer- 
 ing. Co. Litt. 207. 
 
 X4bertas est naturalis facultas ejus quod cuique 
 facere Ubet, nisi qnod de jure aut vi proMbetwr. 
 Liberty is the natural power of doing whatever 
 one pleases, except that which is restrained by law 
 or force. Co. Litt. 116 ; Sharsw. Bla. Com. Introd. 
 6n. 
 
 lAbertas incestimabUis res est. Liberty is an In- 
 estimable good. Dig. 50. 17. 106 ; Fleta, lib. 3, 
 0. 51, § 13. 
 
 lAiertas non reeipit cestimationem. Freedom does 
 not admit of valuation. Bracton, 14. 
 
 lAbertas omnibus rebviS favorabilior est. Liberty 
 is more favored than all things. Dig. 50. 17. 
 123. 
 
 Ziberum corpus (sstimationem non recipii. The 
 body of a freeman does not admit of valuation. 
 Dig. 9. 3. 7. 
 
 laberum est euique apud se explorare an expediat 
 sSH eonstUum. Every one is free to ascertain for 
 himself whether a recommendation is advanta- 
 geous to his interests. 6 Johns. 181, 184. 
 
 Librorum appellatione eontinentur omnia volu- 
 mina, sive m eJiarta, sive in membrana sint, sive in 
 quavis alia materia. Under the name of books 
 are contained all volumes, whether upon paper, 
 or parchment, or any other material. Dig. 33. 
 63. pr. et per tot. 
 
 Licet dispositio de interesse futuro sit inutilis ta- 
 men potest fieri declaratio prcecedens qucE sortiatur 
 effectum interveniente novo actu. Although the 
 grant of a future interest be inoperative, yet a 
 declaration precedent may be made which may 
 take effect, provided a new act intervene. Bacon, 
 Max. Keg. 14 ; Broom, Max. 498. 
 
 lAdta bene miscentur, formula nisi juris dbstet. 
 Lawful acts may well be fused Into one, unless 
 some form of law forbid. {E. g. Two having a 
 right to convey, each a moiety, may unite and 
 convey the whole.) Bacon, Max. 94; Crabb, K. 
 P. 179. 
 
 L^geantia est quasi legis essentia; est vinculum 
 fldei. Allegiance is, as it were, the essence of 
 the law ; it is the bond of faith. Co. Litt. 129. 
 
 lAgeantia naturalis, nullis elaustris eoercetur, 
 nuUis metis refraenaJtur, nullis Jinibus premitur. 
 Natural allegiance is restrained by no barriers, 
 curbed by no bounds, compressed by no limits. 
 7 Co. 10. 
 
 lAgna et lapides siih armonim appellatione non 
 eontinentur. Sticks and stones are not contained 
 under the name of arms. Bract. 144 6. 
 
 Zinea recta est index sui et obliqui ; lex est linea 
 recti. A right line is an index of itself and of an 
 oblique ; law is a line of right., Co. Litt. 158. 
 
 Linea recta semper prwfertur transversali. The 
 right line is always preferred to the collateral. 
 Co. titt. 10 ; Fleta, lib. 6, c. 1 ; 1 Steph. Com. 
 4th ed. 406 ; Broom, Max. 529. 
 
 iMerce pcdentes regis non erwnt vacuce. Letters- 
 patent of the king shall not be void. 1 Bulstr. 6. 
 
 Litis noTnen actionem significat, sive in rem, sive 
 in personam sit. The word "Us" (i. e. a, law- 
 suit) signifies every action, whether in rem or in 
 personam. Co. Litt. 293. 
 
 Litus est quousque maximus fiuctus a marl per- 
 veuit. The shore is where the highest wave from 
 the sea has reached. Dig. 50. 16. 96 ; Ang. Tide- 
 Waters, 67. . 
 
 Locus contractus regit actum. The place of the 
 contract governs the act. 2 Kent, 458 ; L. E. 1 
 Q. B. 119 ; 91 U. S. 406. See Lex Loot. 
 
 Locus pro soluiione reditus autpecuniee secundum 
 coTiditionem dimissionis aut obligationis est stride 
 obsenandus. The place for the payment of rent 
 or money is to be strictly observed according to 
 the condition of the lease or obligation. 4 Co. 73. 
 
 Longa patientia trahitur ad eonsensum. Long 
 
 sufferance is construed as consent. Fleta, lib. 
 4, c. 36, § 4. 
 
 Longa possessio est pacisjus. Long possession 
 is the law of peace. Co. Litt. 6. 
 
 Longa possessio parit jus possidendi, et toUtt 
 actionem vero domino. Long possession produces, 
 the right of possession, and takes away from the 
 true owner his action. Co. Litt. 110. 
 
 Longimn tempm, et longus msus qui excedit me- 
 moriam hominum, sufflcit pro jure. Long time 
 and long use beyond the memory of man, suf- 
 fice for right. Co. Litt. 115. 
 
 Loquent^um id vulgus, senUendum ut docti. We 
 should speak as the common people, we should 
 think as the learned. 7 Co. 11. 
 
 Ijubriemn Ivnguce non facile trahendum est in 
 pcenam. The slipperiness of the tongue (». e. its 
 liability to err) ought not lightly to be subjected 
 to punishment. Cro. Car. 117. 
 
 Lucrum facere ex pupUli tutela tutor non debet. 
 A guardian ought not to make money out of the 
 guardianship of his ward. 1 Johns. Ch. 537, 
 535 
 
 Lunaticui, qui gaudet in hieidis intervallis. He 
 is a lunatic who enjoys lucid intervals. 1 Story, 
 Cont. § 73. 
 
 Magis digmum traliit ad se minus dignwn. The 
 more worthy draws to itself the less worthy. 
 Tear B. 30 Hen. VI. 2 arg. 
 
 Magister rerwm usus ; magistra rerum . expe- 
 rientia. Use is the master of things ; experience 
 is the mistress of things. Co. Litt. 69, 339 ; 
 Wing. Max. 752. 
 
 Jl&gna culpa dolus est. Gross negligence is 
 equivalent to fraud. Dig. 50. 16. 226 ; 3 Spear. 
 256 ; 1 Bonv. Inst. n. 646. 
 
 Magna negligentia culpa est, magna culpa dolus 
 est. Gross negligence is a fault, gross fault is a 
 fraud. Dig. SO. 16. 226. ( Culpa is an inter- 
 mediate degree of negligence between negligent 
 tia, or lack of energetic care, and dolus, or fraud, 
 seeming to approach nearly to our " negligence" 
 in meaning.) See Whart. Negl. 
 
 Maihemium est homicidium inchoatum. May- 
 hem is Incipient homicide. 3 Inst. 118. 
 
 Maihemium est inter crimina majora minimum, 
 et inter minora maximum. Mayhem is the least 
 of great crimes, and the greatest of small. Co. 
 Litt. 127. 
 
 Major continet in se minus. The greater In- 
 cludes the less. 19 VIn. Abr. 379. 
 
 Major hcereditas venit unicuique nostrum a jure 
 et legibus quam a parentibus. A greater inherit- 
 ance comes to every one of us from right and the 
 laws than from parents. 2 Inst. 56. 
 
 Major numerus in se continet minorem. The 
 greater number contains In Itself the less. Brac- 
 ton, 16. 
 
 Majore poena affectus quam legibus statuta est, 
 non est imfmnis. One affected with a greater 
 punishment than is provided by law is not In- 
 famous. 4 Inst. 66. 
 
 Majori summa minor inest. The lesser Is In- 
 cluded In the greater sum. 2 Kent, 618 ; Story, 
 Ag. § 173. 
 
 Majus dignum. trahit ad se minus dignum. The 
 more worthy or the greater draws to It the less 
 worthy or the lesser. 5 Vin. Abr. 584, 586 ; Co. 
 Litt. 43, 355 5 ; 3 Inst. 307 ; Finch, Law, 23 ; 
 Broom, Max. 176 n. 
 
 Majus est delictum, seipsv/m oecidere quam alium. 
 It is a greater crime to kill one's self than an- 
 other. 
 
 Mala grammatica non vitiat ehartam ; sed in ex- 
 positione instrumentorum mala grammatica quoad 
 fieri possit evitanda est. Bad grammar does not 
 vitiate a deed ; but In the construction of instru- 
 ments, bad grammar, as far as It can be done, is 
 
MAXIM 
 
 192 
 
 MAXIM 
 
 to be avoided. 6 Co. 39 ; 9 lU 48 ; Tin. Abr. 
 Grammar, iK) \ Lofft, 441 ; Broom, Max. 686. 
 
 Maledicta expositio quce eorrumpit textum. It is 
 a cursed construction which corrupts the text, 
 a Co. 24 ; 4 id. 35 ; 11 id. 34 ; Wing. Max. 86 ; 
 .Broom, Max. 622. 
 
 Maleflcia non detent remanere impunita, et im^ 
 pvnitas continuum affectum tribuit delinquenti. 
 Evil deeds ought not to remain unpunished, and 
 Impunity affords continual Incitement to the de- 
 linquent. 4 Co. 45. 
 
 Mttlefida propositis distingwuntur. Evil deeds 
 are distinguished from evil purposes. Jenk. Cent. 
 390. 
 
 Malitia est acida, est mali animi affeMus. Malice 
 is sour, It is the quality of a bad mind. 2 Bulstr. 
 49. 
 
 Malitia supplet cetatem. Malice supplies age. 
 Dyer, 104; 1 Bla. Com. 464 ; 4 id. 22, 28, 312; 
 Broom, Max. 316. See Malice. 
 
 Malum hominum est obviandum. The malicious 
 plans of men must be avoided. 4 Co. 15. 
 
 Malum non habet cfflcientem, sed defidentem cau- 
 sam. Evil has not an efficient, but a deficient, 
 cause. 3 Inst. Proeme. 
 
 Malum non prcesumitur. Evil is not presumed. 
 4 Co. 72 ; Branch, Princ. 
 
 Malum quo communius eo pejus. The more com- 
 mon the evil, the worse. Branch, Princ. 
 
 Malms usus est abolendus. An evil custom is to 
 be abolished. • Co. Litt. 141 ; Broom, Max. 921 ; 
 Litt. § 212 ; 5 Q. B. 701 ; 12 id. 845 ; 2 M. & K. 
 449 ; 71 Penn. 69. 
 
 Mandata lieita strietam recipiwnt interpretation- 
 em, sed Ulicita latam et extensam. Lawful com- 
 mands receive a strict interpretation, but unlaw- 
 ful, a wide or broad construction. Bacon, Max. 
 Beg. 16. 
 
 Mandatarius terminos sibipositos transgredi non 
 potest. A mandatary cannot exceed the bounds 
 of his authority. Jenk. Cent. 53. 
 
 Mandatum, nisi gratuitum, nullum est. Unless a 
 mandate is gratuitous, it is not a mandate. Dig. 
 17. 1. 1. 4 ; Inst. 3. 27 ; 1 Bouv. Inst. n. 1070. 
 
 Manifesta probatione non indigent. Manifest 
 things require no proof. 7 Co. 40 b. 
 
 Maris et fesminw conjunctio est de jure naturce. 
 The union of male and female is founded on the 
 law of nature. 7 Co. 13. 
 
 Matrimonia debent esse libera. Marriages ought 
 to be free. Halkers, Max. 86 ; 2 Kent, 102. 
 
 Matrim/mium snbsequens tollU peccatum prcece- 
 dens. A subsequent marriage cures preceding 
 criminality. 
 
 Matter en ley ne serra mise en bouehe del jurors. 
 Matter of law shall not be put into the mouth 
 of jurors. Jenk. Cent. 180. 
 
 Mdturiora sumt vota mulierum quam virorum. 
 The wishes of women are of quicker growth 
 than those of men (i. e. women arrive at matur- 
 ity earlier than men). 6 Co. 71 a ; Bract. 86 b. 
 
 Maxime ita dicta quia maxima est ejus dignitas 
 et certissimM auetoritas, atque quod maxime omni- 
 bus probetur. A maxim is so called becai!ise its 
 dignity is chiefest, and its authority the most 
 certain, and because universally approved by all. 
 Co. Litt. 11. 
 
 Maxims pact sunt contraria, vis et injuria. The 
 CTeatest enemies to peace are force and wrong. 
 . Co. Litt. 161. 
 
 Maximus erroris populus magister. The people 
 Is the greatest master of error. Bacon. 
 
 Melior est causa possidentis. The cause of the 
 possessor is preferable. Dig. 50. 17. 126. 2. 
 
 Melior est conditio defendentis. The cause of 
 the defendant is the better. Broom, Max. 715, 
 719 ; Dig. 50. 17, 126. 3 ; Hob. 199 ; 1 Mass. 66 ; 
 8 id. 307 ; 4 Cush. 405. 
 
 Melior est conditio possidentis et rei quam actoris. 
 
 Better is the condition of the possessor and that 
 of the defendant than that of the plaintiff 
 Broom, Max. 714, 719 ; 4 Inst. 180 ; Vaugh SS 
 60 ; Hob. 103 ; 8 Mass. 189. ' 
 
 Melior est conditio possidentis, ubi neuter jus 
 habet. Better is the condition of the possessor 
 where neither of the two has a right. Jenk 
 Cent. 118. 
 
 Melior est justitia vere prceveniens quam seem 
 puniens. That justice which justly prevents a 
 crime is better than that which severely punishes 
 it. 
 
 Meliorem conditionem suam facere potest minor 
 deteriorem nequaquam. A minor can improve or 
 make his condition better, but never worse. Co 
 Litt. 337 6. ' 
 
 Melius est in tempore occurrere, quam post cm- 
 sam vulneratum remcdium qumrere. It is better 
 to meet a thing in time, than to seek a remedy 
 after a wrong has been inflicted. 3 Inst. 299. 
 
 Melius est jus deflciens quam jus Incertvm. 
 Law that is deficient is better than law that is 
 uncertain. Loift, 395. 
 
 Melius est omnia mala pati quam consentire. It 
 is better to suffer every wrong or ill, than to con- 
 sent to it. 3 Inst. 23. 
 
 Melius est recurrere quam malo currere. It Is 
 better to recede than to proceed wrongly, i 
 Inst. 176. 
 
 Mens testatoris in testamentis spectanda est. In 
 wills, the intention of the testator is to be re- 
 garded. Jenk. Cent. 277. 
 
 Mentiri est contra mentem ire. To lie is to go 
 against the mind. 3 Bulstr. 260. 
 
 Mercis jxppellatio ad res TnobUes tantum pertinet. 
 The term merchandise belongs to movable things 
 only. Dig. 50. 16. 66. 
 
 Mercis appeUatione homines non contineri. Un- 
 der the name of merchandise men are not in- 
 cluded. Dig. 50. 16. 207. 
 
 Merx est quldquid vendi potest. Merchandise is 
 whatever can be sold. 3 Mete. 367. See Meb- 
 
 CHANDISE. 
 
 Messis sementem sequitur. The harvest follows 
 the sowing. Ersk. Inst. 174. 36 ; Bell, Diet. 
 
 Meum est promittere, non dimittere. It is mine 
 to promise, not to discharge. 2 Rolle, 39. 
 
 Minima poena eorporalis est major qualibet peen. 
 niaria. The smallest bodily punishment is 
 greater than any pecuniaiy one. 2 Inst. 220. 
 
 Minime mutanda sunt quce certam JiabuerutU in- 
 terpretationem. Things which have had a certain 
 interpretation are to be altered as little as possi- 
 ble. Co. Litt. 365. 
 
 Minimum est nihUo proximum. The least is 
 next to nothing. Bacon, Arg. Low's Case of 
 Tenures. 
 
 Minor ante tempos agere non potest in cam pro- 
 prietatis, nee etiam convenire. A minor before 
 majority cannot act in a case of property, nor 
 even agree. 3 Inst. 291. 
 
 Minor jurare non potest. A minor cannot make 
 oath. Co. Litt. 172 6. An infant cannot be 
 sworn on a jury. Littleton, 289. 
 
 Minor minorem custodire non debet; a/ioxnto 
 prasumitur male regere qui seipsum regere neinf. 
 A minor ought not be guardian of a minor, for 
 he is presumed to govern others ill who does not 
 know how to govern himself. Co. Litt. 88. 
 
 Minor non tenetur respondere^jiurajite miwyri 
 cetati; nisi in causa dotls, propter favorem. A 
 minor is not bound to answer during his mi- 
 nority, except as a matter of favor in a cause of 
 dower. 8 Bulstr. 143. 
 
 Minor, qui infra cetatem 12 annorurufwrH, 
 utlagari non potest, nee extra legem poni, qmaentl 
 talem cetatem, non est sub lege aliqua, nee in ^ 
 cenna. A minor who is under twelve yean of 
 age cannot be outlawed, nor placed without the 
 
MAXIM 
 
 193 
 
 MAXIM 
 
 laws, because before such age he is not under 
 any laws, nor in a decennary. Co. Litt. 138. 
 
 lUnor 17 annis, non admittitur fore exeeutorem. 
 A minor under seventeen years of age is not ad- 
 mitted to be an executor. 6 Co. 67. 
 
 Minus solvitj qui tardius solvit ; nam et tempore 
 tninm solvitur. He does not pay who pays too 
 late ; for, from the delay, he is judged not to 
 pay. Dig. 50. 16. 13. 1. 
 
 Misera est servitus, iM jus est vagum aut ineer- 
 tum. It is a miserable slavery where the law is 
 vague or uncertain. 4 Inst. 346 ; 9 Johns. 427 ; 
 11 Pet. 286 ; Broom, Max. 150. 
 
 Mitius imperanti meliiis paretur. The more 
 mildly one commands, the better Is he obeyed. 
 S Inst. 24. 
 
 MobUia non habent sUum. Movables have no 
 situs. 4 Johns. Ch. 472. 
 
 Mohilia personam seqimntur, immobilia sitmn. 
 Movable things follow the person ; immovable, 
 their locality. Story, Conil. 3d ed. 638, 639. 
 
 MobUia sequwntur personam. Movables follow 
 the person. Story, Confl. Sd ed. 638, 639 ; Broom, 
 Max. 522. 
 
 Modica eircwmstantia facti jus m.utat. A small 
 circumstance attending an act may change the 
 law. 
 
 Modus de non decimMndo non valet. A modus 
 (prescription) not to pay tithes is void. Lofft, 
 427 ; Cro. Eliz. 511 ; 3 Sharsw. Bla. Com. 31. 
 
 Modus et convenfio vincuni legem. The form of 
 agreement and the convention of the parties over- 
 rule the law. 13 Pick. 491 ; Broom, Max. 689 
 a seq. ; 2 Co. 73 ; 22 N. Y. 252. 
 
 Modus legem dot donationi. The manner gives 
 law to a gift. Co. Litt. 19 a ; Broom, Max. 4.59. 
 
 Moneta est justum medium et mensura rerum 
 eommutaMlium, nam per medium mmietce fit om- 
 nium yerum conveniens, etjusta cestimatio. Money 
 is the just medium and measure of all com- 
 mutable things, for by the medium of money a 
 convenient and just estimation of all things is 
 made. See 1 Bouv. Inst. n. 923. 
 
 Monetandijus comprehenditur in regalibus quae 
 nimquam, a regio sceptro abdicantur. The right 
 of coining is comprehended among^ those rights 
 of royalty which are never relinquished by the 
 kingly sceptre. Dav. 18. 
 
 Mora reprobatur in lege. Delay is disapproved 
 of in law. Jenk. Cent. 51. 
 
 Mors dicUur ultimum suppliciiim. Death is 
 denominated the extreme penalty. 3 Inst. 213. 
 
 Mors omnia solvit. Death dissolves all things.- 
 
 Mortis momentum est ultimum, vita momentum. 
 The last moment of life is the moment of death. 
 4 Bradf. 345, 2.50. 
 
 Mortuus exitus non est exUus. To be dead-born 
 is not to be born. Go. Litt. 29. See 3 Paige, 35 ; 
 Domat, liv. pril. t. 3, s. 1, n. 4, 6 ; 3 Bout. Inst, 
 nn. 1721, 1935. 
 
 Mos retinendus est flddissinue vetustatis. A cus- 
 tom of the truest antiquity is to be retained. 4 
 Co. 78. 
 
 Mulcta damntimfam/B n&n irrogat. A fine does 
 not Impose a loss of reputation. Code, 1. 54; 
 Calvinus, Lex. 
 
 MuUa eoneedwntur per obliquum qua non conce- 
 duntur de direeto. Many things are conceded 
 indirectly which are not allowed directly. 6 Co. 
 47. 
 
 Multa fldem promissa levant. Many promises 
 lessen confidence. 11 Cush. 350. 
 
 Multa ignoramus quce nobis non laterent si vet- 
 erum lectio nobis fuitfamUiaris. We are ignorant 
 of many things which would not be hidden from us 
 if the reading of old authors were familiar to us. 
 10 Co. 73. 
 
 Multa in jure communi contra rationem dispu- 
 tandi pro communi uiilitate introducta sunt. Many 
 Vol. II.— 13 
 
 things have been introduced into the common 
 law, with a view to the public good, which are 
 inconsistent with sound reason. Co. Litt. 70 ; 
 Broom, Max. 158 ; 3 Co. 75. See 3 Term, 146 ; 
 7 id. 252. 
 
 Multa multo exercUatione facUius qvam reguiis 
 percipiee. You will perceive many things much 
 more easily by practice than by rules. 4th Inst. 
 50. 
 
 Multa non vetat lex, quce tamen tacite damnavU. 
 The law fails to forbid many things which yet it 
 has silently ccmdemned. 
 
 Multa transeunt cum universitate qnce non per se 
 trans&mit. Many things pass as a whole which 
 would not pass separately. Co. Litt. 12 a. 
 
 Multi multa, nemo <ymnia novit. Many men 
 know many things, no one knows everything. 4 
 Inst. 348. 
 
 Multiplex et indistinetum parit eonfusionem ; et 
 questiones quo simpliciores, eo lucidiores. Multi- 
 plicity and indistinctness produce confusion : the 
 more simple questions are, the more lucid they 
 are. Hob. 335. 
 
 Mwltiplicata transgressione crescat poena inflie- 
 tio. The infliction of punUhment should be in 
 proportion to the increase of crime. 3 Inst. 479. 
 
 Multitudinem decem faciunt. Ten make a mul- 
 titude. Co. Litt. 347. 
 
 MuUitudo errantium non parit errori patrocin- 
 ium. The multitude of those who err is no pro- 
 tection for error. 11 Co. 75. 
 
 MuUitudo imperitorum perdit curiam. A mul- 
 titude of ignorant practitioners destroys a court. 
 2 Inst. 219. 
 
 Midto utilius est pauca idonea effundere, quam 
 multis iinutilibus homines gravari. It is much 
 more useful to pour forth a few useful things 
 than to oppress men with many useless things. 
 4 Co. 20. 
 
 Natura appetit perfectum, ita et lex. Nature 
 aspires to perfection, and so does the law. Hob. 
 144. 
 
 Natura fide jussionig sit strictissimi juris et non 
 durat vel extendatur de re ad rem, de persona ad 
 personam., de tem,pore ad tempus. The nature of 
 the contract of suretyship is strictissimi juris, 
 and cannot endure nor be extended from thing 
 to thing, from person to person, or from time to 
 time. Burge, Sur. 40. 
 
 Ifatura non fadt sdltum, ita nee lex. Nature 
 makes no leap, nor does the law. Co. Litt. 338. 
 
 Natura non facit vacuum, nee lex supervaeuum. 
 Nature makes no vacuum, the law nothing pur- 
 poseless. Co. Litt. 79. 
 
 Natures vis maxima ; natura bis maxima. The 
 force of nature is greatest; nature is doubly 
 great. 3 Inst. 564. 
 
 Saturale est quidlibet dissolvi eo modo quo liga- 
 tur. It is natural for a thing to be unbound m 
 the same way In which it was bound. Jenk. 
 Cent. 66 ; 4 Denio, 417 ; Broom, Max. 877. 
 
 Nee curia dejleeret in justitia exkibenda. Nor 
 should the court be deficient in showing justice. 
 4 Inst. 63. 
 
 Nee tempus nee loeus oecurrit regi. Neither 
 time nor place bars the king. Jenk. Cent. 190. 
 
 Nee veniam e^fuso sanguine casvs habet. Where 
 blood is spilled, the case is unpardonable. 3 
 Inst. 57. 
 
 Nee veniam, lieso numine, casus hxibet. Where 
 the Divinity is insulted, the case is unpardonable. 
 Jenk. Cent. 167. 
 
 Necessarium est quod non potest aliter se Jiabere. 
 That is necessary which cannot be otherwise. 
 
 NeeessUas est lex temporis et loci. Necessity is 
 the law of a particular time and plaee. 8 Go. 
 69 ; Hale, 54. 
 
 Neeessitas exeusat aut eztemiat delictum in eapi- 
 
MAXIM 
 
 194 
 
 MAXIM 
 
 talUms, quod non operatitr idem in eivilitms. Ne- 
 ceseity excuses or extenuates delinquency in 
 capital cases, but not in civil. See Necessity. 
 
 JfeeessUas faeit licitwm quod alias non est liei- 
 tum. Necessity makes that lawful which other- 
 wise is unlawful. 10 Co. 61. 
 
 Necessitas indueit privilegium quoad jura pri- 
 vata. With regard to private rights, necessity 
 privileges. Bacon, Max. Reg. 5. Broom, Max. 
 11. 
 
 Hecestitae non hdbet legem. Necessity has no 
 law. Plowd. 18. See Necessity, and 15 Vin. 
 Abr. 534 ; 22 id. 540. 
 
 Necessitas publiea major est quam privata. Pub- 
 lic necessity is greater than private. Bacon, Max. 
 Beg. 5 ; Noy, Max. 9th ed. 34 ; Broom, Max. 
 18. 
 
 Necessitas, quod eogit, defendit. Necessity de- 
 fends what it compels. Hale, P. C. 54 ; Broom, 
 Max. 14. 
 
 Necessitas suh lege non continetur, quia quod 
 alias non est licitwm necessitas facit licitum. Ne- 
 cessity is not restrained by law ; since what other- 
 wise is not lawful, necessity malses lawful. 2 
 Inst. 326 ; Fleta, 1. 5, c. 23, § 14. 
 
 Nesessitas vincit legem. Necessity knows no 
 law. Hob. 144; Cooley, Const. Lim. 4th ed. 
 747. 
 
 Necessity creates equity. 
 
 Negatio conclusionis est error in lege. The de- 
 nial of a conclusion is error in law. Wing. Max. 
 268. 
 
 Negatio destruit negationem, et amice faciunt af- 
 firmMionem. A negative destroys a negative, 
 and both make an affirmative. Co. Litt. 146. 
 
 Negatio duplex est afflrmatio. A double nega- 
 tive is an affirmative. 
 
 Negligentia semper hdbet infortuniam comitem. 
 Negligence always has misfortune for a com- 
 panion. Co. Litt. 246 ; Shep. Touch. 476. 
 
 Neminem oportet esse sapientiorem. legibus. No 
 man need be wiser than the laws. Co. Litt. 97. 
 
 Nem^ admittendus est inhabUitare seipsum. No 
 one is allowed to incapacitate himself. Jenk. 
 Cent. 40. But see Stdltipy ; 5 Whart. 371 ; 2 
 Kent, 451, n. 
 
 Nemo agit in seipsum. No man acts against 
 himself. Jenk. Cent, 40. Therefore no man can 
 be a judge in his own cause. Broom, Max. 216, 
 n.; 4 Bingh. 151 ; 2 Exch. 595 ; 18 C. B. 253 ; 2 
 B. & Aid. 822. 
 
 Nemo alienoe rei, sine satisdatione, defensor 
 idoneus intelligitur. No man is considered a com- 
 petent defender of another's property, without 
 security. 1 Curt. C. C. 202. 
 
 Nem^ alieno nomine lege agere potest. No man 
 can sue at law in the name of another. Dig. 50. 
 17. 123. 
 
 Nemo (Aiquam partem recite inteUigere potest, 
 antequam totum itenim atque iterum perlegerit. 
 No one can properly understand any part of a 
 thing till he has read through the whole again 
 and again. 3 Co. 59 ; Broom, Max. 593. 
 
 Nemo allegans suam turpitudinem, audiendws 
 est. No one alleging his own turpitude is to be 
 heard as a witness. 4 Inst. 279 ; 3 Story, 514, 
 516 ; 12 Pick. 567 ; 24 id. 146. 
 
 Nemo Ms pwnitur pro eodem delicto. No one 
 can be punished twice for the same fault. 2 
 Hawk. PI. Cr. 377 ; 4 Sharsw. Bla. Com. 315. 
 
 Nemo cogitationes peenam patitur. No one suf- 
 fers punishment on account of his thoughts. 
 Trayner, Max. 362. 
 
 Nemo cogitur rem suam, vendere, etiam jiisto 
 pretio. No one is bound to sell his property, even 
 for a just price. But see Eminent Domain. 
 
 Nemo contra factum suum venire potest. No 
 man can contradict his own deed. 2 Inst. 66. 
 
 Nemo damnum facit, nisi qui id fecit quod facere 
 
 jus non habet. No one is considered as 
 
 damage, unless he who is doing what he has nn 
 right to do. Dig. .50. 17. 151. 
 
 Nemo dat qui non habet. No one can give who 
 does not possess. Broom, Max. 499, n.: Jenk 
 Cent. 250 ; 100 Mass; 24. 
 
 Nemo de domo sua extrahi debet. A citizen can- 
 not be taken by force from his house. Dig. 50. 
 17. 103. (This maxim in favor of Roman liberty 
 is much the same as that every man's house ii hii 
 castle.) Broom, Max. 4B2, n. 
 
 Nemo debet aliena jactura locupletari. No one 
 ought to gain by another's loss. 2 Kent, 3,36. 
 
 Nemo debet bis puniripro uno delicto. No one 
 ought to be punished twice for the same offence 
 4 Co. 43 ; Hid. 59 b; Broom, Max. 348. 
 
 Nemo debet bis vexari pro eadem causa. No one 
 should be twice harassed for the same cause. 2 
 Johns. 24, 27, 182 ; 13 id. 1.53 ; 8 Wend. 10, 38' 
 2 Hall, 454 ; 3 Hill, N. Y. 420 ; 6 id. 133 ; 2 Barb 
 285 : 6 id. 32. 
 
 Nemo debet bis vexari pro una et eadem emta. 
 No one ought to be twice vexed for the same 
 cause. 5 Pet. 61 ; 1 Arehb. Pr. by Oh. 476 : S 
 Mass. 355 ; 17 id. 425. 
 
 Nemo debet bis vexari, si constat curia quod lit 
 pro una et eadem causa. No man ought to be 
 twice punished, if it appear to the court that it 
 is for one and the same cause. 5 Co. 61 ; Broom, 
 Max. 327,348; 5 Mass. 176 ; 7 id. 423; 99 W. 
 203., 
 
 Nemo debet esse judex in propria causa. No 
 one should be judge in his own cause, 12 Co, 
 114; Broom, Max. 116. See Judge. 
 
 Nemo debet immiscere se rei alienee — ad se niM 
 pertinenti. No one should interfere in what no 
 way concerns him. Jenk. Cent. 18. 
 
 Nemo debet in eommunione invitus teneri. No 
 one should be retained in a partnership against 
 his will. 2 Sandf. .568, 593 ; 1 Johns. 106, 114. 
 
 Nemo debet locupletari ex alterius inccmmoio. 
 No one ought to be made rich out of another's 
 loss. Jenk. Cent. 4 ; 10 Barb. 626, 633. 
 
 Nemo debet rem suam sine factu aut defedu «mo 
 amittere. Noone should lose his property with- 
 out his act or'negligence. Co. Litt. 263, 
 
 Nemo duobus utatur offleiis. No one should 111 
 two offices. 4 Inst. 100. 
 
 Nemo ejusdem te7iementi sim.ul potest esse haares et 
 dominus. No one can be at the same time heir 
 and lord of the same flef. 1 Reeve, Hist. Eng, 
 Law, 106, 
 
 Nemo est hares viventis. No one is an heir to 
 the living. Co. Litt. 22 6; 2 Bla. Com. 70, 107, 
 208; Vin. Abr. Abeyance; Broom, Max. 52M; 
 2 Bouv. Inst. 1694,1832; 7 Allen, 75; 12 id. 
 144 ; 99 Mass. 456 ; 118 id. 345 ; 2 Johns. 36. 
 
 Nemo est supra leges. No one is above the law. 
 Lofift, 142. 
 
 Nemo ex alterius facto preegravari d^bet. No 
 man ought to be burdened in consequence of an- 
 other's act. 2 Kent, 646 ; Pothier, Obi, Evans ed. 
 133. 
 
 Nemo ex consilio obligatur. No man is bonnl 
 for the advice he gives.. Story, Bailm. § 165. 
 
 Nemo ex propria dolo consequitur actionem. No 
 one acquires a right of action from his own 
 wrong. Broom, Max. 297. 
 
 Nemo ex suo delicto meliorem suam conditionm 
 facere potest. No one can improve his condition 
 by his own wrong. Dig. 50. 17. 134. 1. 
 
 Nemo in propria causa testis esse debet. No one 
 can be a witness in his own cause. (But to this 
 rule there are many exceptions.) 1 Sharsw. Bl>. 
 Com. 443; Sid. 370. 
 
 Nemo inauditu^ condemnari debet, si non sit W- 
 tum/ix. No man "ought to be condemned un- 
 heard, unless he be contumacious. Jenk. Cent. 
 18. 
 
MAXIM 
 
 195 
 
 MAXIM 
 
 Nemo jus sibi dicere potest. No one can declare 
 the law for himself. (No one is entitled to take 
 the law into his own hands.) Trayuer, Max. 
 366. 
 
 2femo miiitans Deo vmpUeetur seeularSms nego- 
 Mt«. No man warring for God should be troubled 
 by secular business. Co. Litt. 70. 
 
 2femo nateitur artifex. No one is born an artifi- 
 cer. Co. Litt. 97. 
 
 Nemo patriam in qua natus est exuere, nee ligean- 
 tke debUum ejurare possU. No man can renounce 
 the country in which he was born, nor abjure the 
 obligation of his allegiance. Co. Litt. 129 a; 3 
 Pet. 1.55 ; Broom, Max. 75. See Allegiance ; 
 
 EXPATBIATION ; NATURALIZATION. 
 
 Nemo plus eommodi heredi suo relinquit quam 
 ipse habuit. No one leaves a greater advantage 
 to his heir than he had himself. Dig. 50. 17. 120. 
 
 Nemo plus juris ad alienum transferre potest, 
 quam ipse habet. One cannot transfer to another 
 a larger right than he himself has. Co. Litt. 
 309 6 : Wing. Max. 56 ; Broom, Max. 467, 469 ; 
 3 Kent, 324 ; 5 Co. 113 ; 10 Pet. 161, 175. 
 
 Nemo potest contra reeordum verijkare per pa- 
 triam. No one can verify by the country against 
 a record. (The issue upon a record cannot be 
 tried by a jury.) 3 Inst. 380. 
 
 Nemo potest esse dominus et tueres. No one can 
 be both owner and heir. Hale, C. L. c. 7. 
 
 Nemo potest esse simul actor et judex. No one 
 can be at the same time judge and suitor. 
 Broom, Max. 117 ; 13 Q. B. 327 ; 17 id. 1 ; 15 C. 
 B. 796 ; 1 C. B. N. s. 323. 
 
 Nemo potest esse tenens et dominus. No man 
 can be at the same time tenant and landlord (of 
 the same tenement). Gilbert, Ten. 102. 
 
 Nemo potest facere per alium quad per senon po- 
 test. No one can do that by another which he 
 cannot do by himself. Jenk. Cent. 237. 
 
 Nemo potest facere per obliquum quod non po- 
 test facere per directum.. No one can do that in- 
 directly which cannot be done directly. 1 Eden, 
 512. 
 
 Nemo potest mutare consilium suum in <Merius 
 injuriam. No one can change his purpose to the 
 Injury of another. Dig. 60. 17. 75 ; Broom, Max. 
 34 ; 7 Johns. 477. 
 
 Nemo potest sibi debere. No one can owe to 
 himself. See Confitsion of Rights. 
 
 Nemo prcBsens nisi intelligat. One is not present 
 unless he understands. See Pkesence. 
 
 Nemo prcesumitur alienam posteritatem sum 
 prcetulisse. No one is presumed to have pre- 
 ferred another's posterity to his own. Wing. 
 Max. 285. 
 
 Nemo prcesumitur donare. No one is presumed 
 to give. 9 Pick. 138. 
 
 Nemo prcesumitur esse immemor suce ceternoe 
 salutis, et maxima in artieulo mortis. No man is 
 presumed to be forgetful of his eternal welfare, 
 and particularly at the point of death. 6 Co. 
 76. > 
 
 Nemo prcesumitur ludere in extremis. No one 
 is presumed to trifle at the point of death. 
 
 Nemo prcesumitur maluS. No one is presumed 
 to be bad. 
 
 Nemo proMbetur plures negotiationes sive artes 
 exereere. No one is restrained from exercising 
 several kinds of business or arts. 11 Co. 54. 
 
 Nenio prohibetur pluribus defensionibus uti. No 
 one is restrained from using several defences. 
 Co. Litt. 304 ; Wing. Max. 479. 
 
 Nemoprudens punit ut proeterita revocentuVf sed 
 ut futura proeveniantur. No wise man punishes 
 that things done may be revoked, but that future 
 wrongs may be prevented. 3 Bulstr. 17. 
 
 Nemo punitur pro alieno delicto. No one is to 
 be punished for the crime or wrong of another. 
 Wing. Max. 336. 
 
 Nemo pwnltur sine injuria, facto, sen defalto. 
 No one is punished unless for some wrong, act, 
 or default. 3 Inst. 387. 
 
 Nemo qui eondemnare potest, abaolvere non po- 
 test. No one who may condemn is unable to ac- 
 quit. Dig. 50. 17. 37. 
 
 Nemo sibi esse judex vel suisjus dicere debet. No 
 man ought to be his own judge, or to administer 
 justice in cases where his relations are concerned. 
 
 13 Co. 113 ; Cod. 3. 5. 1 ; Broom, Max. 116, 124. 
 Nemo sine actione experitur, et hoe non sine 
 
 breve sive libdlo conventionali. No one goes to 
 law without an action, and no one can bring an 
 action without a writ or bill. Brae. 112. 
 
 Nemo teneturad impossiMle. No one is bound 
 to an impossibility. Jenk. Cent. 7 ; Broom, Max. 
 244. 
 
 Nemo tenetur armare adversarum contra se. No 
 one is bound to arm his adversary against himself. 
 Wing. Max. 665. 
 
 Nemo tenetur divinare. No one Is bound to 
 foretell. 4 Co. 38 ; 10 id. 55 a. 
 
 Nemo tenetur edere instrtimenta contra se. No 
 man is bound to produce writings against him- 
 self. Bell, Diet. 
 
 Nemo tenetur informare qui nescit sed quisquis 
 scire quod informal. No one who is ignorant of 
 a thing is bound to give information of it, but 
 every one is bound to know that which he gives 
 information of. Branch, Princ. ; Lane, 110. 
 
 Nemo tenetur jurare in suam turpitudinem. No 
 one is bound to testify to his own baseness. 
 
 Nemo tenetur seipsum accusare. No one Is 
 bound to accuse himself. Wing. Max. 486 ; 
 Broom, Max. 968, 970 ; 1 Sharsw. Bla. Com. 443 ; 
 
 14 M. & W. 286 ; 107 Mass. 181. 
 
 Nemo tenetur seipsum infortuniis et periculis ex- 
 ponere. No one is bound to expose himself to 
 misfortune and dangers. Co. Litt. 253. 
 
 Nemo tenetur seipsum prodere. No one is 
 bound to expose himself. 10 N. T. 10, 33 ; 7 
 How. Pr. 57, 58 ; Broom, Max. 968. 
 
 Nemo videtur fraudare cos qui sciunt et consen- 
 tiunt. No one is considered as deceiving those 
 who know and consent. Dig. 30. 17. 145. 
 
 Nigrum nunquam excedere debet rubrum. The 
 black should never go beyond the red (i. e. the 
 text of a statute should never be read in a sense 
 more comprehensive than the rubric, or title). 
 Trayner, Max. 373. 
 
 Nihil aliud potest rex quam quod de ju e v test. 
 The king can do nothing but what he c ' do 
 legally. 11 Co. 74. 
 
 NihU consensui tam eontrarium est quam via 
 atque metus. Nothing is so contrary to consent 
 as force and fear. Dig. 50. 17. 116 ; Broom, Max. 
 278, n. 
 
 Nihil dat qui non habet. He gives nothing who 
 has nothing. 
 
 Nihil de re accrescit ei qui nihU in re quandojus 
 accreseeret habet. Nothing accrues to him who, 
 when the right accrues, has nothing in the sub- 
 ject-matter. Co. Litt. 188. 
 
 Nihil est enim liberate quod non idem jtistum. 
 For there is nothing generous which is not at the 
 same time just. 3 Kent, 441, note a. 
 
 NihU est magis rationi consentaneum quam eodem 
 modo quodque dissolvere quo conflatum est. Nothing 
 is more consonant to reason than that every 
 thing should be dissolved in the same way in 
 which it was made. Shep. Touch. 333. 
 
 Nihil facit error nominis cum de eorpore constat. 
 An error in the name is nothing when there is 
 certainty as to the thing. 11 Co. 21 ; 2 Kent, 
 393. 
 
 Nihil habet forum ex scena. The court has 
 nothing to do with what is not before it. 
 
 Nihil in lege intolerabUius est, eandem rem diverso 
 jure censeri. Nothing in law is more intolerable 
 
MAXIM 
 
 196 
 
 MAXIM 
 
 than that the same case should be eubject (in 
 different courts) to different views of the law. 
 i Co. 9.3. 
 
 ■ MhU infra regnvm tuMitol magif eoniervat in 
 tranquUitate et concordia qiiam debita legum ad- 
 miniKiratio. Nothing preserves in tranquillity and 
 concord those who are subjected to the same gov- 
 ernment better than a due administration of the 
 laws. 2 Inst. 158. 
 
 MhU iniquius quam eeguUatem nittiis iniendere. 
 Nothing is more unjust than to extend equity too 
 far. Halkere,103. 
 
 MhU magis justum e»t quam quod necetsarium 
 est. Nothiing is more just than what is necessary. 
 Dav. 12. 
 
 MhU nequam eat prcesumendum. Nothing 
 wicked is to be presumed. 2 P. Wms. 583. 
 
 NihU perfeetum eit dum aliquid re»tat agendmn. 
 Nothing is perfect while something remains to be 
 done. 9 Co. 9. 
 
 MhU peti potest ante id tempus, quo per rerum 
 naturam peraolvi poisU. Nothing can be de- 
 manded before that time when, in the nature of 
 things, it can be paid. Dig. SO. 17. 186. 
 
 Mhil posaumus contra veritatem. We can do 
 nothing against truth. Doct. & Stu. Dial. 2, c. 
 6. 
 
 MhU praacribitur nisi quod possidetur. There 
 is no prescription for that which is not possessed. 
 6 B. & A. 277. 
 
 Mhil quod est contra rationem est lidtum. No- 
 thing against reason is lawful. Co. Litt. 97. 
 
 MhU quod eat ijiconveniens est lieUum. Nothing 
 inconvenient is lawful. 4 H. L. C. 145, 195 ; 
 Broom, Max. 186, 366. 
 
 Mhil simul inventum eat et perfeetum. Nothing 
 is invented and perfected at the same moment. 
 Co. Litt. 230 ; 2 Bla. Com. 298, n. 
 
 Mhil tarn conveniena est naturali cequitati quam 
 wnwmquodque diaaolvi eo ligamine quo ligatum eat. 
 Nothing is so consonant to natural equity as that 
 each thing should be dissolved by the same 
 means by which it was bound. 2 Inst. 360 ; 
 Broom, Max. 877. See Shep. Touch. 333. 
 
 MhU tarn conveniens est naturali aquitati, quam 
 voluntatem dorttini volentis rem auam in alium 
 transferre, ratam haberi. Nothing is more con- 
 formable to natural equity than to confirm the 
 will of an owner who desires to transfer his pro- 
 perty to another. Inst. 2. 1. 40 ; 1 Co; 100. 
 
 MhU tarn naturale eat, quam eo genere quidque 
 ■lissolvere, quo colligatwm eat. Nothing is so 
 natural as that an obligation should be dissolved 
 by the same principles which were observed in 
 contracting it. Dig. 50. 17. 35. See 1 Co. 100 : 
 2 Inst. 359; Broom, Max. 887. 
 
 MhU tarn proprium imperio quam legUma vivere. 
 Nothing is so becoming to authority as to live 
 according to the law. Fleta, 1. 1, c. 17, 6 11 ; 2 
 Inst. 63. 
 
 Ml agit exempltim litem quod lite reaohnt. An 
 example does no good which settles one question 
 by another. 15 wend. 44, 49. 
 
 NU faeit error nominia si de corpore constat. An 
 error in the name is immaterial if the body is 
 certain. Broom, Max. 634 ; 11 C. B. 406. 
 
 Ml sine prudenti fedt ratione vetustas. Anti- 
 quity did nothing without a good reason. Co. 
 Litt. 65. 
 
 Ml temere nevandwn^ Nothing should be 
 rashly changed. Jenk. Cent. 163. 
 
 Mimia certUudo certitudinem ipsam destruit. 
 Too great certainty destroys certainty itself. 
 Lofft, 244. 
 
 Mmia subtUitas in jure reprobatur, et tdlia eer- 
 titudo certitudinem confundit^ Too great subtlety 
 is disapproved of in law ; for such nice pretence 
 of certainty confounds true and legal certaintv 
 Broom, Max. 187 j 4 Co. 5. 
 
 Mmium altercando Veritas amiititur. By too 
 much altercation truth is lost. Hob. 344. 
 
 Ifo man can hold the same land immediately o/ 
 two several landlords. Co. Litt. 152. 
 
 jVb man is preaumed to do any thing againit 
 nature. 22 Vin. Abr. 154. 
 
 No man may iejrtdge in his own cause. 
 
 No man shall set up his infamy as a defence. 2 
 W. Bla. 364. 
 
 No man shall take by deed but parties, unlesi 
 in remainder. 
 
 No one can grant or convey what he does not 
 own. 25 Barb. 284, 301. See 20 Wend. 267: 23 
 N. T. 252 ; 13 id. 131 ; 6 Du. N. T. 238. And 
 see Estoppel. 
 
 Nobiles magis plectuntur pecunia, plebes vera in 
 corpore. The higher classes are more punished 
 in money ; but the lower in person. 3 Inst, 
 220. 
 
 Nobiles gunt qui arma gentilida antecetivrum 
 anorum proferre possunt. The gentry are those 
 who are able to produce armorial bearings de- 
 rived by descent from their own ancestore. 2 
 Inst. 595. 
 
 NobUiores et benigniores preaumptiones in ia- 
 biis swnt praferendee. When doubts arise, the 
 more generous and benign presumptions are to 
 be preferred. Reg. Jur. Civ. 
 
 Nomen est quasi rei notamen. A name is as it 
 were the note of a thing. 11 Co. 20. 
 
 Nomen rum siufficit si res non ait de jure cut it 
 facto. A name does not suffice if the thing do 
 not exist by law or by fact. 4 Co. 107. 
 
 Nomina si nescis perU eognitio rerum. If yon 
 know not the names of things, the knowledge o{ 
 things themselves perishes. Co. Litt. 86. 
 
 Nomina sunt mutabilia, res autem immobUet. 
 Names are mutable, bnt things immutable. 6 
 Co. 66. 
 
 Nomina sunt notee rerum. Names are the notei 
 of things. 11 Co. 20. 
 
 Nomina aunt symbota rerum. Names are the 
 symbols of things. 
 
 Non aceipi debent verba in demomtratwnm 
 falaayn, quee competunt in limitatioTiem verim. 
 Words ought not to be accepted to import a false 
 description, which may have effect by way of true 
 limitation. Bacon, Max. Beg. 13 ; 2 Fare. Con. 
 62-65; Broom, Max. 642; 3B. &Ad. 459;4 
 Exch. 604 ; 3 Taunt. 147. 
 
 Non alio modo puniatur aliquis, quam aemnd^m 
 quod ae habet eondemnatio. A person may not be 
 punished differently than according to what the 
 sentence enjoins. 3 Inst. 217. 
 
 Non aliter a aignijicatione verborum reeedi epof- 
 tet quatn cum man^estum est, aliud aeniiaae teila- 
 torem. We must never depart from the signifi- 
 cation of words, unless it is evident that they 
 are not conformable to the will of the testatof. 
 Dig. 33. 69. pr. ; Broom, Max. 568 ; 2 De G. M. 
 &G. 313. 
 
 Non auditur perire volens. One who wishes to 
 perish ought not to be heard. Best, Ev. § 385. 
 
 Non concedantur citaiiones priusquam exprimOr 
 tur super qua re fieri decet citatio. Summonses or 
 citations should not be granted before it is ex- 
 pressed upon what ground a citation ought to he 
 issued. 12 Co. 47. 
 
 Non conaentit qui errat. He who errs does not 
 consent. 1 Bouv. Inst. n. 581 ; Bract. 44. 
 
 Non dat qui non habet. He gives nothing Who 
 has nothing. Broom, Max. 467 ; 3 Cush. 369; 3 
 Gray, 178. 
 
 Non debeo melioris amditionis ease, quam aurfc 
 me«s a quo jus in me transit. I ought not to be 
 in better condition than he to whose rights I suc- 
 ceed. Dig ,50. 17. 175. 1. 
 
 Non deberet alii noeere, quod inter alios actum 
 esaet. No one ought to be injured by that which 
 
MAXIM 
 
 197 
 
 MAXIM 
 
 tiae taken place between other parties. Dig. 13. 
 a. 10. 
 
 NiM debet aetori licere, quod reo non, permittUur. 
 That which is not permitted to the defendant 
 ought not to be to the plaintiff. Dig. 50. 17. 41. 
 
 Ifon debet adduci exeepUo ejus rei cujus petitur 
 diisolutio. A plea of the very matter of which 
 the (^termination is sought ought not to be made. 
 Bacon, Max. Reg. 2 ; Broom, Max. 166 ; 3 P. 
 Wms. 317 ; 1 Ld. Raym. 57 ; 2 id. 1433. 
 
 Kon debet alteri per alterum iniqua condUio in- 
 ferri. A burdensome condition ought not to be 
 brought upon one man by the act of another. 
 Die. 50. 17. 74. 
 
 Non debet, eui plus licet, quod minus est, non 
 lieere. He who is permitted to do the greater 
 may with greater reason do the less. Dig. 50. 17, 
 21 ; Broom, Max. 176. 
 
 ifon decet homines dedere eausa non eognita. It 
 is unbecoming to surrender men when no cause 
 is shown. 4 Johns. Ch. 106, 114 ; 3 Wheel. Cr. 
 Cae. 473, 482. 
 
 Noil deeipitur qui seit se decipi. He is not de- 
 ceived who knows himself to be deceived. 5 Co. 
 60. 
 
 Non deflnitur in jure quid sit conatus. What 
 an attempt is, is not defined in law. 6 Co. 42. 
 
 Non differunt quae concordant re, tametsi non in 
 verbis iisdem. Tliose things which agree in sub- 
 stance, though not in the same words, do not 
 differ. Jenk. Cent. 70. 
 
 ^on dubitatur, etsi specialiter vendUor eviction- 
 em non promiserit, re evicta, ex empto competere 
 actionem. It is certain that although the vendor 
 has not given a special guarantee, an action ex 
 empto lies against him, if the purchaser is evicted. 
 Code, 8. 45. 6. But see Doct. cSe Stud. b. 2, c<, 
 47; Broom, Max. 768. 
 
 Non effldt affectus nisi sequatur effectus. The 
 intention amounts to nothing unless some effect 
 follows. 1 RoUe, 226. 
 
 Non est aretius vinculum inter homines quam. 
 jusjurandum. There is no stronger link among 
 men than an oath. Jenk. Cent. 126. 
 
 Non est certandum de regulis juris. There is no 
 disputing about rules of law. 
 
 JP^on est dispiUandum contra principia negantem. 
 There is no disputing against a man denying 
 principles. Co. Litt. 343. 
 
 Non est justum aliquem, antenatum post mortem 
 facere bastardum, qui toto tempore vita siwe pro 
 legitimo habebatur. It is not just to make an 
 elder-born a bastard after his death, who during 
 his lifetime was accounted legitimate, 12 Co. 
 44. 
 
 Non est novum ut priores leges ad posteriores 
 trahantur. It is not a new thing that prior stat- 
 utes shall give place to later ones. Dig. 1, 3. 
 26 ; 1. 1. 4; Broom, Max. 28. 
 
 Non est recedendum, a communi observantia. 
 There should be no departure from a common 
 observance. 3 Co. 74. 
 
 Non est regula quim fallat. There is no rule 
 but what may fail. Off. Ex. 212. 
 
 Non est singulis concedendum, quod per magis- 
 tratum. publice possit JUri, ne occasio sit majoris 
 tumultus fiieiendi. That is not to be conceded to 
 private persons which can be publicly done by 
 the magistrate, lest it be the occasion of greater 
 tumults. Dig. 50. 17. 176. 
 
 Non ex opinionibus singulorum, eed ex communi 
 ttsu, nomina exaudiri debent. Names of things 
 ought to be understood according to common 
 usage, not according to the opinions of individ- 
 uals. Dig. 33. 10. 7. 3. 
 
 Non facias malum, ut inde venial bonum. Tou 
 are not to do evil that good may come of it. 11 
 Co. 74 ff. 
 
 Non impedit clausula derogatoria, quo mimus ab 
 
 eadem potestate res dissolvantur a qua constUw- 
 untur. A derogatory clause does not prevent 
 things from being dissolved by the same power 
 by which they were originally made. Bacon, 
 Max. Reg. 19 ; Broom, Max. 27 ; 5 Watts, 155. 
 
 Non in legendo ted in intelligendo leges consixtunt. 
 The laws consist not in being read, but in being 
 understood. 8 Co. 167. 
 
 Non jus ex regula, sed regula ex jure. The law 
 does not arise from the rule (or maxim) , but 
 the rule from the law. Trayner, Max. 384. 
 
 Non jus, sed seisina facit stipitem. Not right, 
 but seisin, makes a stock from which the inheri- 
 tance must descend. Fleta, 1. 6, cc. 14, 2, § 3 ; 
 Noy, Max, 9th ed, 72, n, (6) ; Broom, Max, 625, 
 527 ; 2 Sharsw. Bla, Com. 209 ; 1 Steph. Com. 365, 
 368, 394 ; 4 Kent, 388, 389 ; 4 Scott, N. K. 468. 
 
 Non licet quod dispendio licet. That which is 
 permitted only at a loss is not permitted to be 
 done. Co. Litt. 127. 
 
 Non nasci, et natum mori, paria sunt. Not to 
 be born, and to be dead-born, are the same. 
 
 Non obligat lex nisi promulgata. A law is not 
 obligatory unless it be promulgated. 
 
 Non observata forma, infertur adnullatio actu*. 
 When the form is not observed, it is inferred that 
 the act is annulled. 12 Co. 7. 
 
 Non offlcit conatus nisi sequatur effectus. An 
 attempt does not harm unless a consequence 
 follow. 11 Co. 98. 
 
 Non omne damnum inducit injuriam. Not 
 every loss produces an injury (i. e. gives a right 
 of action). See 3 Bla. Com. 219; 1 Sm. L. C. 
 131 ; 2 Bouv. Inst. n. 2311. 
 
 Non ow.ne quod licet honestunt est. It is not 
 every thing which is permitted that is honor- 
 able. Dig. .50. 17. 144 ; 4 Johns. Ch. 131. 
 
 Non omnium quae a majorUms nostris constituta 
 sunt ratio reddi potest. A reason cannot always 
 be given for the institutions of our ancestors. 4 
 Co. 78 ; Broom, Max. 157 ; Branch, Princ. 
 
 Non possessori incuTnbit necessitas probandi pos- 
 sessiones ad se pertimere. It is not incumbent on 
 the possessor of property to prove his right to 
 his possessions. Code, 4. 19. 2 : Broom, Max. 
 714. 
 
 Non potest adduci exceptio ejus dem rei cujus pe- 
 titur dissolutio. A plea of the same matter, the 
 determination of which is sought by the action, 
 cannot be brought forward. Bacon, Max. Reg. 
 2. (When an action is brought to annul a pro- 
 ceeding, the defendant cannot plead such pro- 
 ceeding in bar.) Broom, Max. 166 : Wing. Max. 
 647; 3 P. Wms. 317. 
 
 Non potest probari quod probatum non relevat. 
 That cannot be proved which proved is irrele- 
 vant. See 1 Exch. 91, 92, 103. 
 
 Nan potest quis sine brevi agere. No one can 
 sue without a writ, Fleta, 1, 3, c, 18, § 4, 
 
 Non potest rex gratiam facere cum injuria et 
 damno aliorum. The king cannot confer a favor 
 which occasions injury and loss to others, 3 
 Inst, 336 ; Broom, Max, 63 ; Vaugh. 338 ; 3 E, 
 & B, 874. 
 
 Non potest rex subditum renitentem onerare im- 
 positionibus. The king cannot load a subject 
 with imposition against his consent. 2 Inst. 61. 
 
 Non potest videri disisse habere, qui nunquam 
 habuit. He cannot be considered as having 
 ceased to have a thing, who never had it. Dig. 
 50. 17. 308. 
 
 Non prcestat impedimentum quod de jure non 
 sortitur affectum. A thing which has no effect in 
 law is not an impediment. Jenk. Cent. 163 ; 
 Wing. Max. 737. 
 
 Non quod dictum est, sed quod factum, est, in- 
 spicitur. Not what is said, but what is done, is 
 to be regarded, Co, Litt, 36; 6 Bing, 310; 1 
 Mete, 353 ; 11 Cush. 986. 
 
MAXIM 
 
 198 
 
 MAXIM 
 
 Non refert an guis assensum maim prafert ver- 
 Us, an rebus ipsis et factis. It is immaterial 
 whether a man gives his assent by words or by 
 acts and deeds. 10 Co. 52. 
 
 Nim refert quidex mquipoUentibusJtat. It mat- 
 ters not which of two equivalents happens. 5 
 Co. 122. 
 
 Nbn refert quid nofum sit judiei, si notum non 
 sit in forma judicii. It matters not what is 
 known to the judge, if it is not known to him 
 j udicially. 3 Bulstr. 11.5. 
 
 Non refert verbis am factis fit revoeatio. It mat- 
 ters not whether a revocation be by words or by 
 acts. Cro. Car. 49 ; Branch, Princ. 
 
 Non remota causa sed proxima spectatur. See 
 Causa Pkoxima. 
 
 Non respondent minor, nisi in causa dotis, et 
 Jioc pro favore doti. A minor shall not answer 
 unless in a case of dower, and this in favor of 
 dower. 4 Co. 71. 
 
 Non Solent quce abundant vitiare scripiwras. 
 Surplusage does not usually vitiate writings. 
 Dig. 50. 17. 94 ; Broom, Max. 627, n. 
 
 Non solum quid licet, sed quid est conveniens con- 
 siderandum, quia nihil qtwd inconveniens est lici- 
 tum. Not only what is permitted, but what is 
 convenient, is to be considered, because what is 
 inconvenient is Illegal. Co. Litt. 66 a. 
 
 Non. stmt longa vM nihil est quod demere possis. 
 There is no prolixity where there is nothing that 
 can be omitted. Vangh. 138. 
 
 Non temere credere, est nermis sapientce. Not to 
 believe rashly is the nerve of wisdom. 5 Co. 
 114. 
 
 Non valet conflrmatio, nisi ille, qui eonflrmat, 
 sit in possessione rei vel juris unde fieri debet con- 
 flrmatio; et eodem modo, nisi ille cui conflrmatio 
 fit, sit in possessione. Confirmation is not valid 
 unless he who confirms is either in possession of 
 the thing Itself, or of the right of which confir- 
 mation is to be made, and, in like manner, unless 
 he to whom confirmation is made is in possession. 
 Co. Litt. 295. 
 
 Non valet exceptio ejusdem rei eujus petitur dis- 
 solutio. A plea of that of which the determina- 
 tion is sought is not valid. 2 Eden, 134. 
 
 Non valet impedimsntum quod dejure non sor- 
 titur effectum. An impediment is of no avail 
 which by law has no effect. 4 Co. 31 a. 
 
 Non verbis sed ipsis rebus, teges imponimus. 
 Not upon words, but upon things themselves, 
 do we impose law. Code, 6. 43. 2. 
 
 Non videntur qui errant conseniire. He who 
 errs is not considered as consenting. Dig. .50. 
 17.116; Broom, Max. 362; 2 Kent, 477; 6 Allen, 
 543 ; 14 Ga. 207. 
 
 Non videntur rem amittere quibus propria non 
 fuit. They are not considered as losing a thing 
 whose own it was not. Dig. 50. 17. 85. 
 
 Non videtur eonsensum retinuisse si quis ex prce- 
 scripto minantis aliquod, immutavit. He does not 
 appear to have retained his consent, who has 
 changed any thing at the command of a party 
 threatening. Bacon, Max. Eeg. 23 ; Broom, 
 Max. 378. 
 
 Non videtur perfecte eujusque id esse, quod ex 
 casu avferri potest. That does not truly belong 
 to any one which can be taken from him upon 
 occasion. Dig. 50. 17. 159. 1. 
 
 Non videtur quisquam id eapere, quod ei necesse 
 est alii restituere. One is not considered as ac- 
 quiring property in a thing which he is bound to 
 restore. Dig. 50. 17. 51. 
 
 Non videtur vimfacere, qui jure suo utitur, et 
 ofdinaria aetione experitur. He is not judged 
 to use force who exercises his own right and pro- 
 ceeds by ordinary action. Dig. 50. 17. 1.55. 1. 
 _ Nosoitur a sociis. It Is known from its asso- 
 ciates. The meaning of a word may be ascer- 
 
 tained by reference to the meaning of words 
 associated with it. Broom, Max. 588 et sea ■ 9 
 East, 267; 13 id. 531; 6 Taunt. 394; 1 Ventr 
 325 ; 1 B. & C. 644 ; arg. 10 id. 496, 519 : 18 c' 
 B. 102, 893 ; 5 M. & G. 639, 667 ; 8 C. B. 437 • 5 
 id. 380 ; 4 Exch. 511, 519 ; 5 id. 294 ; 11 id. 113 ■ 
 3 Term, 87 ; 8 id. 118 ; 12 Allen, 77 ; 105 Mass' 
 433; 1 N. T. 47, 69; 11 Barb. 43, 63; 20 ici 
 644. 
 
 Noscitur ex socio, qui non cognoseitur ex se. He 
 who cannot be known from himself may be 
 known from his associate. ¥. Moore, 817; 1 
 Ventr. 335 ; 3 Term, 87 ; 9 East, 267 ; 13 id 
 531 ; 6 Taunt. 294 ; 1 B. & C. 644. 
 
 Notitia dicUur a noscendo; et notitia non deiet 
 claudieare. Notice is named from a knowledge 
 being had ; and notice ought not to halt (i. e. be 
 imperfect). 6 Co. 39. 
 
 Nova constitutio futuris formam imponere debet, 
 nonprceteritis. A new enactment ought to im- 
 pose form upon what is to come, not upon what 
 is past. 2 Inst. 393 ; Broom, Max. 34, 37; T. 
 Jones, 108 ; 2 Show. 16 ; 6 M. & W. 285 ; 7 id. 
 536 ; 3 Maes. 132 ; 10 id. 439 ; 2 Gall. 139 ; 2 N. 
 Y. 345 ; 7 Johns. 503 et seq. 
 
 Novatio non prcesumitur. A novation is not 
 presumed. , Halkers, Max. 104. 
 
 Novitas non tarn utUitate prodest quam nonitate 
 perturbat. Novelty benefits not so much by its 
 utility as it disturbs by it« novelty. Jenk. Cent. 
 167. 
 
 Novum judicium non dot novum jus, sed de- 
 clarat antiquum. A new judgment does not 
 make a new law, but declares the old. 10 Co. 4^. 
 
 Noxa sequitur caput. The injury (i. e. lia. 
 bility to make good an injury caused by a slave) 
 follows the head or person (i. e. attaches to bis 
 master) . Heineccius, Elem. Jur. Civ. 1. 4, t, 8, 
 § 1231. 
 
 Nuda pactio obligationem non parit. A naked 
 promise does not create an obligation. Dig. 2. 
 14. 7. 4; Code, 4. 65. 27; Broom, Max. 746 ; 
 Brisson, Nudus. 
 
 Nuda ratio et nuda pactio non ligant tdiquem 
 debitorem. Naked reason and naked promise do 
 not bind any debtor. Fleta, 1. 2, c. 60, § 23. 
 
 Nudum pactum est libi nulla subest causa propter 
 eonventionem ; sed ubi svibest eattsa, flt oUigatio, 
 et parit actionem. Nudum pactum is where there 
 is no consideration for the undertaking or agree- 
 ment ; but when there is a consideration, an ob- 
 ligation is created and an action arises. Dig. 2. 
 14. 7. 4 ; 2 Sharsw. Bla. Com. 445 ; Broom, Max. 
 745, 750 ; Plowd. 309 ; 1 Pow. Contr. 330 et seq.; 
 3 Burr. 1670 et seq. ; Vin. Abr. Nudum Padvm 
 (A) ; 1 Eonbl. Eq. 5th ed. 335 a. 
 
 Nudum pactum ex quo non oritur actio . Nudum 
 pactum is that upon which no action arises. 
 Code, 3. 3. 10 ; 5. 14. 1 ; Broom, Max. 676. 
 
 Nul ne doit s'enrichir aux depens des autres. 
 No one ought to enrich himself at the expense 
 of others. 
 
 Nul prendra advantage de son tort demesne. 
 No one shall take advantage of his own wrong. 
 Broom, Max. 290. 
 
 Nulla curia quce recordum, non habet potest irn. 
 ponere flnem, neque aliquem mandare eareerij 
 quia ista spectant taniummodo ad curias de re- 
 cordo. No court which has not a record can im- 
 pose a fine, or commit any person to prison ; hB- 
 cause those powers belong only to courto of 
 record. 8 Co. 60. 
 
 Nulla emptio sine pretio esse potest. There can 
 be no sale without a price. 4 Pick. 189. 
 
 Nulla impossibilia aui inhonesta sunt pram' 
 m^nda ; vera autem et honesta et possibUia. So 
 Impossible or dishonorable things are to be pre- 
 sumed ; but things true, honorable, and possible. 
 Co. Litt. 78. 
 
MAXIM 
 
 199 
 
 MAXIM 
 
 NiMa pacttone effld potest ne dolus prcestetur. 
 By no agreement can it be effected that there 
 shall be no accountability for fraud. Dig. 2. 14. 
 27. 3 ; Broom, Max. 696, 118, n. ; 5 M. & S. 466. 
 
 NMe rigle sans faute. There is no rule with- 
 out a fault. 
 
 Niille terre sans seigneur. No land without a 
 lord. Guyot, Inst. Feod. c. 28. 
 
 NuUi enim res sua servit jure servitutia. No 
 one can have a servitude over his own property. 
 Dig. 8. 2. 26 ; 17 Mass. 443 ; 2 Bouv. Inst. n. 
 1600. 
 
 NulUus hondnis auetoritas apud nos valere debet, 
 ut meliora non sequeremur si quis attulerit. The 
 authority of no man ought to avail with us, that 
 we should not follow better [opinions] should 
 any one present them. Co. Litt. 383 6. 
 
 Ni/iUum crimen majus est inobedientia. No 
 crime is greater than disobedience. Jenk. Cent. 
 77. 
 
 NiAlum exemplum est idem omnibus. No exam- 
 ple is the same for all purposes. Co. Litt. 212 a. 
 
 Nullum iniquum est prasumendum. in jure. 
 Nothing unjust is to be presumed in law. 4 Co. 
 72. . ■ 
 
 Nullum matrimonium, i&i nulla dos. No mar- 
 riage, no dower. 4 Barb. 192, 194. 
 
 Nullum simile est idem. Nothing which is like 
 another is the same, i. e. no likeness is exact 
 identity. 2 Story, 512 ; Story, Partn. 90 ; Co. 
 Litt. 3 ; 2 Bla. Com. 162 ; 6 Binu. 506. 
 
 Nullum simile quatwor pedibus currit. No 
 simile runs upon four feet (or, as ordinarily ex- 
 pressed, " on all fours "). Co. Litt. 3 a ; Euno- 
 mns, Dial. 2, p. 155 ; 1 Story, 143 ; 6 Binn. 506. 
 
 Nullum tempus occurrit regi. Lapse of time 
 does not bar the right of the crown. 2 Inst. 
 273 ; 1 Sharsw. Bla. Com. 247 ; Broom, Max. 
 65; Hob. 347; 2 Steph. Com. 504; 1 Mass. 
 355 ; 2 Brock. 393 ; 18 Johns. 227 ; 10 Barb. 139. 
 
 Nullum tempus occurrit reipubliete. Lapse of 
 time does not bar the commonwealth. 11 Gratt. 
 572 ; Hill. B. P. 173 ; 8 Tex. 410 ; 16 id. 305 ; 5 
 McLean, 138 ; 19 Mo. 667. 
 
 Nullus commodum capere potest de injuria sua 
 propria. No one shall take advantage of his own 
 wrong. Co. Litt. 148 6 ; Broom, Max. 279 ; 4 
 Bingh. N. c. 395 ; 4 B. & A. 409 ; 10 M. & W. 
 309 ; 11 id. 680 ; 12 Gray, 493. 
 
 Nullus debet agere de dolo, ubi alia actio subest. 
 Where another form of action is given, no one 
 ought to sue in the action de dolo. 7 Co. 92. 
 
 Nullus dicitur aecessorius post feloniam sed ille 
 qui novit principalem feloniam fecisse, et ilium re- 
 ceptavit et eomfortavit. No one is called an acces- 
 sory after the fact but he who knew the principal 
 to have committed a felony, and received and 
 comforted him. 3 Inst. 138. 
 
 Nullus dicitur felo principalis nisi actor, aut qui 
 prtesens est, abettans aut auxilians aetorem, ad felo- 
 niam fadendam. No one is called a principal felon 
 except the party actually committing the felony, 
 or the party present aiding and abetting in its 
 commission. 3 Inst. 138. 
 
 NiiWiis idoneus testis in re sua intelligitur. No 
 one is understood to be a competent witness in 
 his own cause. Dig. 22. 5. 10 ; 1 Sumn. 328, 
 344. 
 
 Nullus jus alienumforisfacere potest. No man 
 can forfeit another's right. Fleta, 1. 1, c. 28, § 11. 
 
 Nullus recedat e curia cancellaria sine remedio. 
 No one ought to depart out of the court of chan- 
 cery without a remedy. Tear B. 4 Hen. VII. 4. 
 
 Nutlus videtur dolo facere qui sno jure utitur. 
 No man is to be esteemed a wrong-doer who 
 avails himself of his legal right. Dig. 50. 17. 
 55 ; Broom, Max. 130 ; 14 Wend. 399, 492. 
 
 Nrniqtiam crescit ex post facto prceteriti delicti 
 astinuUio. The quality of a past offence is never 
 
 aggravated by that which happens subsequently. 
 Dig. 50. 17. 138. 1 ; Bacon, Max. Reg. 8 ; Broom, 
 Max. 42. 
 
 Nunquam decurritur ad extraordinarium sed 
 ubi deficit ordinarium. We are never to recur to 
 what is extraordinary, till what is ordinary fails. 
 4 Inst. 84. 
 
 Nunqiiam flctio sine lege. There is no Action 
 without law. 
 
 Nunqttam nimis dicitur quod nwnquam satis 
 dicitur. What is never sufBeiently said is never 
 said too much. Co. Litt. 375. 
 
 Nunquam. prcescrihitur in faXso. There is never 
 prescription in case of falsehood. Bel^, Diet. 
 
 Nunquam res humancs prospere succedunt ubi 
 negliguntur divince. Human things never pros- 
 per when divine things are neglected. Co. Litt. 
 95 ; Wing. Max. 3. 
 
 Nuptias non eoneubiius, sed eotisensus facit. Not 
 cohabitation but consent makes the marriage. 
 Dig. 50. 17. 30 ; 1 Bouv. Inst. n. 239 ; Co. Litt. 
 33 ; Broom, Max. 506, n. 
 
 Obedientia est legis essentia. Obedience is the 
 essence of the law;. 11 Co. 100. j 
 
 Obtemperandum est consuetudini rationdbUi tan- 
 quam legi. A reasonable custom is to be obeyed 
 like law. 4 Co. 38. 
 
 Oceupantis flunt derelieta. Things abandoned 
 become the property of the (first) occupant. 1 
 Pet. Adm. 53. 
 
 Odiosa et inhonesta non s^cnt in lege prcesumanda. 
 Odious and dishonest acts are not presumed in 
 law. Co. Litt. 78 ; 6 Wend. 228, 231 ; 18 N. T. 
 295, 300. 
 
 Odiosa non prcesumuntur. Odious things are 
 not presumed. Burr. Sett. Cas. 190. 
 
 Officers may not examine the judicial acts of the 
 court.. 
 
 Officia judicialia non concedantur antequam va- 
 cent. Judicial offices ought not to be granted 
 before they are vacant. 11 Co. 4. 
 
 Officia magistratus non debent esse veTialia, The 
 offices of magistrates ought not to be sold. Co. 
 Litt. 234. 
 
 Officii conatus si effedtus sequatur. The attempt 
 becomes of consequence, if the effect follows. 
 Jenk. Cent. 55. 
 
 Officium nemini debet esse dam,nosum. An office 
 ought to be injurious to no one. Bell, Diet. 
 
 Omisslo eorum qua tacite insunt nihil operatur. 
 The omission of those things which are silently 
 expressed is of no fconsequence. 2 Bulstr. 131. 
 
 Omne actum ah intentione agentis est judican- 
 dum. Every act is to be estimated by the inten- 
 tion of the doer. Branch, Princ. 
 
 Omne crimen ebrietas et incendit et detegit. 
 Drunlcenness inflames and reveals every crime. 
 Co. Litt. 247 ; Broom, Max. 17. 
 
 Omne jus aut consensus fecit, aut necessitas con- 
 stituit, aut jirmavit cojisuetudo. All law has 
 either been derived from consent, established by 
 necessity, or confirmed by custom. Dig. 1. 3. 
 40 ; Broom, Max. 690 n. 
 
 Omne magis dignum trahit ad se minus dignum 
 sit antiquiua. Every worthier thing draws to It 
 the less worthy, though the latter be more an- 
 cient. Co. Litt. 355. 
 
 Omn.e magnum exemplum, habet aliquid ex ini- 
 qim, quodpublica utUUate compensatur. Every 
 great'example has some portion of evil, which is 
 compensated by its public utility. Hob. 279. 
 
 Omne majus continet in se m,inus. The greater 
 contains in itself the less. 5 Co. 1J5 a ; Wing. 
 Max. 206 ; Story, Ag. § 172 ; Broom, Max. 174 ; 
 15 Pick. 397 ; 1 Gray, 336. 
 
 Omne majus dignum continet in se minus dig- 
 num. The more worthy contains in itself the 
 less worthy. Co. Litt. 143. 
 
MAXIM 
 
 200 
 
 MAXIM 
 
 Omne majus mimis in se compleetUur. Every 
 greater embraces In itself the minor. Jenk. 
 Cent. 208. 
 
 Onme prmdpale trahit ad te aceeuorium. Every 
 principal thing draws to itself the accessory. 17 
 Mass. 425; 1 Johns. 580. 
 
 Omne quod solo iruediflcatur solo eedit. Every 
 thing helongs to the soil which is built upon it. 
 Dig. 41. 1. 7. 10 ; 47. 3. 1 ; Inst. 2. 1. 29 ; Broom, 
 Max. 401 ; Fleta, 1. 3, c. 2, § 12. 
 
 Omne saeramentum debet esse de certa edentia. 
 Every oath ought to be founded on certain know- 
 ledge. 4 Inst. 279. 
 
 Omne testamentum morte consummatum est. 
 Every will is consummated by death. 3 Co. 29 
 6 ; 4 id. 61 6 ; 2 Bla. Com. 500 ; Shep. Touch. 
 401 ; Broom, Max. 503. 
 
 Omnes actiones in mundo infra certa tempora 
 habent limitationem. All actions in the world are 
 limited within certain periods. Bract. 52. 
 
 Omnes homines avt liberi sunt aut servi. All 
 men are freemen or slaves. Inst. 1. 3. pr. ; Fleta, 
 1. 1, c. 1, § 2. 
 
 Omnes licentiam Jiabere Ms guce pro se indulta 
 tunt, renunciare. All have liberty to renounce 
 those things which have been established in their 
 favor. Code, 2. 3. 29 ; 1. 3. 51 ; Broom, Max. 
 699. 
 
 Omnes prudentes ilia admittere solent qucepro- 
 bantur iis qwi in arte sua bejie versati sunt. All 
 prudent men are accustomed to admit those 
 things which are approved by those who are well 
 versed in the art. 7 Co. 19. 
 
 Om.nia delicta in aperto leviora sunt. All crimes 
 committed openly are considered lighter. 8 Co. 
 127. 
 
 Omnia prcesumutitur contra spoliatorem. All 
 things are presumed against a wrong-doer. 
 Broom, Max. 938; 1 Greenl. Ev. § 37 ; 5 Allen, 172. 
 
 Omnia prtEsumuntur legitime facta donee pro- 
 betur in cofitrarium. All things are presumed to 
 be done legitimately until the contrary is proved. 
 Co. Litt. 232 ; Broom, Max. 948 ; 59Penn. 68. 
 
 Omnia prasumuntur rite et solenniter esse acta. 
 All things are presumed to have been rightly and 
 regularly done. Co. Litt. 232 6 ; Broom, Max. 
 165, 942 et sea. ) 12 C. B. 788 ; 3 Exch. 191 ; 6 id. 
 716. 
 
 Omnia prasumvntur rite et solenniter esse acta 
 donee probetur in contrarium. All things are pre- 
 sumed to have been done regularly and with due 
 formality until the contrary is proved. Broom, 
 Max. 944 ; 3 Bingh. 381 ; Campb. 44 ; 1 C. &M. 
 461 ; 17 C. B. 183 ; 5 B. & Ad. 550 ; 12 M. & 
 W. 251 ; 12 Wheat. 69, 70 ; 6 Binn. 447. 
 
 Omnia quae jure contrahunter, eontrario jure 
 pereunt. Obligations contracted under a law 
 are destroyed by a law to the contrary. Dig. 50. 
 17. 100. 
 
 Omnia qucB sunt uxorii sunt ipsius viri. All 
 things which are the wife's belong to the hus- 
 band. Co. Litt. 112 ; 2 Kent, 130, 143. 
 
 Omnia rite ease acta prcesumuntur. All things 
 are presumed to be done in due form. Co. Litt. 
 6; Broom, Max. 944, n.; llCu8h.441 ; 13 Allen, 
 397; 108 Mass. 435; S Ohio St. 246, 247; iid. 
 148 i 6 id. 293. 
 
 Omnis actio est loquela. Every action is a com- 
 plaint. Co. Litt. 293. 
 
 Omnis eonclwsio boni et veri judicii sequitur ex 
 bonis et veris prwmissis et dictis juratorum. Every 
 conclusion of a good and true judgment arises 
 from good and true premises, and the verdicts of 
 jurors. Co* Litt. 326. 
 
 Omnis consensus tollit errorem. Every consent 
 removes error. 2 Inst. 123. 
 
 Omnis deflnitio in jure eivili periculosa est, 
 partem est enim ut non subverti possit. Every de- 
 finition in the civil law is dangerous, for there is 
 
 very little that cannot be overthrown. (There Is 
 no rule In the civil law which is not liable to soma 
 exception ; and the least difference in the facts 
 of the case renders its application useless.) Bi? 
 50. 17. 202 ; 2 Woodd. Lect. 196. *' 
 
 Omnis exceptio est ipsa quoque regula. An ex- 
 ception is in itself also a rule. 
 
 Omnis indemnatus pro innoxis legitmt habetm. 
 Every uncondemned person is held by the law as 
 innocent. Lofit, 121. 
 
 Omnis innovatio plus novitate pertwrbat quam 
 utilitateprodest. Every innovation disturbs more 
 by its novelty than it benefits by its utility. 2 
 Bulstr. 338; 1 Salk. 20; Broom, Max. 147; m 
 Penn. 381. 
 
 Omnis interpretatio ti fieri potest ita flenia est 
 in instrumentis, ut omnes eontrarietaies amovean. 
 tur. The interpretation of instruments is to be 
 made, if they will admit of it, so that all contra- 
 dictions may be removed. Jenk. Cent. 96. 
 
 Omnis interpretatio vel declarat, vel extendit, vel 
 restringit. Every interpretation either declare!, 
 extends, or restrains. 
 
 Omnis nova constitutio futwris temporitmi far- 
 mum imponere debet, non prateritis. Every new 
 statute ought to set its stamp upon the fotnre, 
 not the past. Bract. 228 ; 2 Inst. 95. 
 
 Omnis persona est homo, sed non vicittim. 
 Every person is a man, but not every man a per- 
 son. Calvinus, Lex. 
 
 Omnis privatio praisfipponit habitum, Eveiy 
 privation presupposes former enjoyment. Co. 
 Litt. 339. 
 
 Omnis querela et omnis actio injuriarum limUata 
 est infra certa tempora. Every plaint and every 
 action for injuries is limited within certain times. 
 Co. Litt. 114. 
 
 Omnis ratihabitio retrotrahitur et mandatoagui- 
 paratur. Every subsequent ratification has a 
 retrospective eifect, and is equivalent to a prior 
 command. Co. Litt. 207 a ; Story, Ag. 4th ed. 
 102 ; Broom, Max. 757, 867 et seq. ; 2 Bonv. Inst. 
 35 ; 4 id. 26 ; 8 Wheat. 363 ; 7 Exch. 726 ; 10 0. 
 845 ; 9 C. B. 532, 607 ; 14 id. 53 ; 5 Johns. Ch. 
 256 ; 57 Penn. 433. 
 
 Omnis regula suas patitur exceptiones. Every 
 rule of law is liable to its own exceptions. 
 
 Omnium contributione sarciatur quod pro omni- 
 bus datum est. What is given for all shall be 
 compensated for by the contribution of all. 4 
 Bingh. 121 ; 2 Marsh. 309. 
 
 (Xnnium rerum quarum u»us est, potest esse abu- 
 sus, virtute solo excepta. There may be an abme 
 of everything of which there is a use, virtue only 
 excepted. Dav. 79. 
 
 Ome a fraud, always a fraud. 13 Vin. |Abr. 
 5o9. 
 
 Once a mortgage, always a mortgage. 1 Hill. E. 
 P. 378; Bisph. Eq. §153; 7 Watts, 375; 67 
 Penn. 104. 
 
 Once a recompense, always a recompemt, 19 
 Vin. Abr. 377. 
 
 Once quit and cleared, ever quit and eUarei. 
 Skene de Verb. Sign., iter ad fin. 
 
 One may not do an act to himself. 
 
 One should be just before he is generous. 
 
 Opinio qtue favet testamento est tenenda. That 
 opinion is to be followed which favors the will. 
 
 Oportet quod eertce personce, terra, et certi itatvi 
 comprehendantur in declaratione usuum. It is 
 necessary that certain persons, lands, and estates 
 be comprehended in a declaration of uses. 9 Co. 
 9. 
 
 Oportet quod certa res dedueatur in judicium. 
 A thing, to be brought to judgment, must be 
 certain or definite. Jenk. Cent. 84 ; Bract. 15 i. 
 
 Oportet quod certa sit res qua venditur. A 
 thing, to be sold, must be certain or definite' 
 Bract. 61. 
 
MAXIM 
 
 201 
 
 MAXIM 
 
 Oppoiita juxta se potUa magU eliiceaamt. Op- 
 poeites placed next each other appear In a clearer 
 light. 4 Bacon, Works, 256, 258, 353. 
 
 Optima enim est legU interpret coTisuetudo. 
 Usage is the best interpreter of law. 8 Inst. 18 ; 
 Broom, Max. 931. 
 
 Optima est lex, qua minimum relinquit arbitrio 
 judi<As, optimus judex qui minimum sibi. That 
 is the best law which confides as little as pos- 
 sible to the discretion of the judge ; he is the best 
 judge who takes least upon himself. Bacon, Aph. 
 16 ; Broom, Max. 81. 
 
 Optima statuti irtterpretatrix est (^omnibtis par- 
 ticuiis ejusdem inspeotis) ipsum statwtmn. The 
 best interpretress of a statute is (all the separate 
 parts being considered) the statute itself. 8 Co. 
 117 ; Wing. Max. 239, max. 68. 
 
 Optimam «««« legem, quce minimum relinquit ar- 
 bitrio judicis ; id quod certitudo ejus prcestat. That 
 law is the best which leaves the least discretion 
 to the judge ; and this is an advantage which 
 results from its certainty. Bacon, Aph. 8. 
 
 Optimus interpres rerum usus. Usage is the 
 best interpreter of things. 3 Inst. 282 ; Broom, 
 Max. 917, 930-1. 
 
 Optimus interpretandi modus est sic legis inter- 
 pretare ut leges legibua accordant. The best mode 
 of interpreting laws is to make them accord. 8 
 Co. 169. 
 
 Optimus judex, qui minimum siK. He Is the 
 best judge who relies as little as possible on his 
 own discretion. Bacon, Aph. 46 ; Broom, Max. 84. 
 
 Optimus legum interpres eonsuetudo. Custom is 
 the best interpreter of laws. 4 Inst. 75 ; 2 Pars. 
 Con. 53 ; Broom, Max. 685. 
 
 Ordine placitandi servato, tervatur et jus. The 
 order of pleading being preserved, the law is 
 preserved. Co. Litt. 303; Broom, Max. 188. 
 
 Origine propria nem,inem posse voluntate sua 
 eximi mandfestum est. It is manifest that no one 
 by his own will can renounce his origin (put off 
 or discharge his natural allegiance) . Code, 10. 
 34. 4. See 1 Bla. Com. c. 10; 20 Johns. 313; 8 
 Pet. 122, 246 ; Broom, Max. 77. 
 
 Origo rei inspici debet. The origin of a thing 
 ought to be inquired into. 1 Co. 99. 
 
 Pad sunt maxime eontraria, vis et injuria. Force 
 and wrong are especially contrary to peace. Co. 
 Litt. 161. 
 
 Pacta conventa qtiee Tieque contra leges, neqtte 
 dolo malo inita sunt, om,ni modo observanda sunt. 
 Contracts which are not illegal, and do not 
 originate in fraud, must in all respects be ob- 
 served. Code, 2. 3. 29 ; Broom, Max. 698, 732. 
 
 Pacta dant legem amtractui. Agreements give 
 the law to the contract. Halkers, Max. 118. 
 
 Pacta privata juri publico derogare non possimt. 
 Private contracts cannot derogate from the pub- 
 lic law. 7 Co. 23. 
 
 Pacta quce contra leges constitutionesque vel con^ 
 tra bonos mores Jiunt, nullam. vim. habere, indubi- 
 tati juris est. It is indubitable law that contracts 
 against the laws, or good morals, have no force. 
 Code, 2. 3. 6 ; Broom, Max. 695. 
 
 Pacta qua turpem causam continent non sunt 
 observanda. Contracts founded upon an im- 
 moral consideration are not to be observed. Dig. 
 3. 14. 37. 4; 2 Pet. 539 ; Broom, Max. 732. 
 
 Paetis privatorum juri publico non derogatur. 
 Private contracts do not derogate from public 
 law. Broom, Max. 695 ; per Dr. Lushington, 
 Arg. 4 CI. & F. 241 ; Arg. 3 id. 621. 
 
 Pacta aliquid lieitum est, quod sine paclo non 
 admittitur. By a contract something is permit- 
 ted, which, without it, could not be admitted. 
 Co. Litt. 166. 
 
 Par in parem imperium non habet. An equal 
 bas no power over an equal. Jenk. Cent. 174. 
 
 Example : One of two judges of the same court 
 cannot commit the other for contempt. 
 
 Parens est nomen generale ad omne genus cog- 
 nationis. Parent is a general name for every 
 kind of relationship. Co. Litt. 80 ; Littleton, 
 § 108 ; Mag. Cart. Joh. c. 50. 
 
 Pareniwm est liberos alere etiam nothos. It is 
 the duty of parents to support their children 
 even when illegitimate. Lofft, 222. 
 
 Paria copulantur paribus. Similar things 
 unite with similar. 
 
 Paribus sententiis reus absolvitur. When opin- 
 ions are equal, a defendant is acquitted. 4 Inst. 64. 
 
 Parols font plea. Words make the plea. 5 
 Mod. 458 ; Year B. 19 Hen. VI. 48. 
 
 Parte quaeumque integrante mblata, tollitur 
 totum. An integral part being taken away, the 
 whole is taken away. 8 Co. 41. 
 
 Partus ex legitimo thoro non certius noscit ma- 
 trem quam genitorem suam. The offspring of a 
 legitimate bed knows not his mother more cer- 
 tainly than his father. Porteficue, c. 42. 
 
 Partus sequitur ventrem. The offspring follow 
 the condition of the mother. Inst. 2. 1. 19. 
 (This is the law in the case of slaves and ani- 
 mals ; 1 Bouvier, Inst. n. 167, 503 ; but with re- 
 gard to freemen, children follow the condition 
 of the father.) Broom, Max. 516 n. ; 13 Mass. 
 551 ; 18 Pick. 222. 
 
 Parum cavet natura. Nature takes little heed-. 
 2 Johns. Cas. 137, 166. 
 
 Parum differunt qua re concordant. Things 
 differ but little which agree in substance. 3 
 Bulstr. 86. ^ 
 
 Parum est latam. esse sententiam, nisi mandetur 
 executioni. It is not enough that sentence should 
 be given unless it be committed to execution. 
 Co. Litt. 289. 
 
 Parum projlcit scire quid fieri debet, si non cog- 
 noscas quomodo sit facturum. It avails little to 
 know what ought to be done, if you do not know 
 how it is to be done. 2 Inst. 503. 
 
 Pater is est quern nnptia demonstrant. The 
 father is be whom the marriage points out. 1 
 Bla. Com. 446 ; 7 Mart. N. s. 548, 5.53; Dig. 2. 
 4. 5 ; 1 Bouv. Inst. n. 273, 304, 322 ; Broom, 
 Max. 516. 
 
 Patria laboribus et expensis non debet fatigari. 
 A jury ought not to be harassed by labors and 
 expenses. Jenk. Cent. 6. 
 
 Patria potestas in pietate debet, Twn in atrocitate 
 consistere. Paternal power should consist in 
 affection, not in atrocity. 
 
 Peccata contra naturam sunt gravissinux. Of- 
 fences against nature are the heaviest. 3 Inst. 
 30. 
 
 Piceatum peecato additqui culpa quamfacitpa- 
 trocinium defensionis adjungit. He adds one 
 offence to another, who, when he commits a 
 crime, joins to it the protection of a defence. 5 
 Co. 49. 
 
 Pendente lite nihil innovetur. During a litiga- 
 tion nothing should be changed. Co. Litt. £§4. 
 See 20 How. 106 ; Cross, Lien, 140 ; 1 Story, Eq. 
 Jur. § 406; 3 Johns. Ch. 441 ; 6 Barb. 33. 
 
 Per alluvionem id videtur adjici, quod ita paula- 
 tim adjieitur, ut intelligere non possumus qitantUTn 
 quoquo momento temporis adjiciatur. That is said 
 to be added by alluvion which is so added little 
 by little that we cannot tell how much is 
 added at any one moment of time. Dig. 41. 1. 
 7. 1 ; Hale, de Jur. Mar. pars 1, c. 4; Fleta, 1. 
 3, c. 3, § 6. 
 
 Per rationes pervenitur ad legitimam rationem. 
 By reasoning we come to legal reason. Littleton, 
 §386. 
 
 Per rerum naturam, factum negantis nulla pro- 
 batio est. It Is in the nature of things that he 
 who denies a fact is not bound to give proof. 
 
MAXIM 
 
 202 
 
 MAXIM 
 
 Per varies actus, legem experientia faeit. By 
 various acts experience frames tlie law. 4 Inst. 
 50. 
 
 Perfeettim M cui nihil deest secundwm suce per- 
 feotionis vel naturce modum. That is perfect 
 wliich wants notliing according to tiie measure 
 of its perfection or nature. Hob. 151. 
 
 Periculosum est res novas et inusitatas indueere. 
 It is dangerous to introduce new and unaccus- 
 tomed things. Co. Litt. 379. 
 
 Perieulosum existimo quod bonorum viroram 
 non eomprobatur exemplo. I think that dangerous 
 which is not warranted by the example of good 
 men. 9 Co. 97. 
 
 Periculum rei venditce, nondum tradiim, est emp- 
 toris. The purchaser runs the risk of the loss 
 of a thing sold, though not delirered. 1 Bouv. 
 Inst. n. 939 ; 2 Kent, 498, 499 ; 4 B. & C. 481, 
 941. 
 
 Perjuri sunt qui sirvatis verbis jwamenti decipi- 
 unt aures eorum qui accipiunt. They are perjured 
 who, preserving the words of an oath, deceive 
 the ears of those who receive it. 3 Inst. 166. 
 
 Perpetva lex est, nvliam legem humanam aepositi- 
 vam perpetuam esse ; et clausula quce abrogationem 
 excludit ab initio non valets It is a perpetual law 
 that no human or positive law can be perpetual ; 
 and a clause in a law which precludes the power 
 of abrogation is void ab initio. Bacon, Max. 
 Beg. 19 ; Broom, Max. 27. 
 Perpetuities are odious in law and equity. 
 Persona conjuneta cequiparatur interesse pro- 
 prio. The interest of a personal connection is 
 sometimes regarded in law as that of the indi- 
 vidual himself. Bacon, Max. Eeg. 18 ; Broom, 
 Max. 533, 537. 
 
 Persona est homo cum statu quodam eonsidera- 
 tus. A person is a man considered with refer- 
 ence to a certain stqtua. Heineccius, Elem. Jur. 
 Civ. 1. 1, tit. 3, § 75. 
 
 Persona vice fungitur munieipium et decuria. 
 Towns and boroughs act as if persons. 23 Wend. 
 103, 144. 
 
 Personal thirws cannot be done by another. 
 Finch, Law, b. 1, c. 3, n. 14. 
 
 Personal things cannot be granted over. Finch, 
 Law, b. 1, c. 3, n. 15. 
 
 Personal things die with the person. Finch, 
 Law, b. 1, c. 3, n. 16. 
 
 Fersmialia personam sequuntur. Personal 
 things follow the person. 10 Cush. 516. 
 
 Perspicua vera non sunt probanda. Plain 
 truths need not be proved. Co. Litt. 16. 
 
 Pirata est hostis humani geTieris. A pirate is 
 an enemy of the human race. 3 Inst. 113. 
 
 Placita negativa duo exitum nbn faciunt. Two 
 
 negative pleas do not form an issue. Lofft, 415. 
 
 Plena et ceteris justitia flat partibus. Let full 
 
 and speedy justice be done to the parties. 4 
 
 Inst. 67. 
 
 Plurcdis numerus est duobus contentus. The plu- 
 ral number is contained in two. 1 Bolle, 476. 
 Pluralities are odious in law, 
 Plures coheeredes simt quasi vmrnn corpus, prop- 
 ter unitatem juris quod hdbent. Several co-heirs 
 are as one body, by reason of the unity of right 
 which they possess. Co. Litt. 163. 
 
 Plures participes sunt quasi unum corpus, in eo 
 quod unum, jus habent. Several part-owners are 
 as one body, by reason of the unity of their 
 rights. Co. Litt. 164. 
 
 Plus exempla quam peecata nocent. Examples 
 hurt more than offences. 
 
 Plus peccat auctor quam actor. The instigator 
 of a crime is worse than he who perpetrates it. 
 5 Co. 99. 
 
 Plus valet wnus oculatus testis, qiuim auriii 
 decem. One eye-witness is better than ten ear 
 witnesses. 4 Inst. 279. 
 
 Plus vident oculi quam oeulus. Several eves 
 see more than one. 4 Inst. 160. 
 
 Poena ad paucos, metus ad omnes. Punishmest 
 to few, dread or fear to all. 
 
 Poena cui paucos, metus ad omnes pervenict. If 
 punishment be inflicted on a few, a dread comes 
 to all. 
 
 Poena ex delicto defiincti, hceres teneri non cUhet. 
 The heir ought not to be bound in a penalty in! 
 flicted for the crime of the ancestor. 2 Inst 
 198. 
 
 Pcena non potest, culpa perennis erit. Punish- 
 ment cannot be, crime will be, perpetual. 21 
 Vin. Abr. 271. 
 
 Poince potius nwUienda quam exasperanda srnit. 
 Punishments should rather be softened than 
 aggravated. 3 Inst. 320. 
 
 Poena sint restringendce. Punishmente should 
 be restrained. Jenk. Cent. 29. 
 
 Pcence suos tenere debet actores et non alios. Pun- 
 ishment ought to be Inflicted upon the guilty, 
 and not upon others. Bract. 380 b : Fleta, 1. 1, 
 c. 38, § 12; 1. 4, c. 17, §17. 
 
 Politiee legibus non leges politiis adaptandg. 
 Politics are to be adapted to the laws, and not 
 the laws to politics. Hob. 154. 
 
 Ponderantur testes non numerantur. WitneBsej 
 are weighed, not counted. 1 Stark. Et. 554; 
 Best, Ev. 426, § 389 ; 14 Wend. 105, 109. 
 
 Posito uno oppositorum negatur alteram. One 
 of two opposite positions being affirmed, the 
 other is denied. 3 Bolle, 422. 
 
 Possessio est quasi pedis positio. Possession is, 
 as it were, the position of the foot. 3 Co. 42. 
 
 Possessio fratris de feodo simplieifadt tororem 
 esse haredem. Possession of the brother in fee- 
 simple makes the sister to be heir. 3 Co. 42 ; i 
 Sharsw. Bla. Com. 327 ; Broom, Max. 532. 
 
 Possessio padflca pour anns 60 facitjm. Peace- 
 able possession for sixty years gives a right, 
 Jenk. Cent. 26. 
 
 Possession is a good title, where no better tide ap- 
 pears. 20 Vln. Abr. 378. 
 
 Possession of the termor, possession of the rever- 
 sioner. 
 
 Possessor has right against all men but him 
 who has the very right. 
 
 Possibility cannot be on a possibility. 
 
 Posteriora derogant priorSnes. Posterior things 
 derogate from things prior. 1 Bouv. Inst. n. 90. 
 
 Posthumus pro nato habetur. A posthumous 
 child is considered as though born (at the 
 parent's death). 15 Pick. 258. 
 
 Postliminium flngit eum, qui captus est in M- 
 tate semper fuisse. Postliminy feigns that he who 
 has been captured has never left the state. 
 Inst. 1. 12. 5 ; Dig. 49. 51. 
 
 Potentia debet sequi justitiam, non anteeedere. 
 Power ought to follow, not to precede justice. 
 SBulstr. 199. 
 
 Potentia inutilis frustra est. Useless power 
 is vain. 
 
 Potentia non est nisi ad bonum. Power is not 
 conferred but for the public good. 
 
 Potest quis renunciare pro se et suis, jus qvod 
 pro se introductum est. A man may relinquish, 
 for himself and those claiming under him, » 
 right which was introduced for hie own benefit. 
 See 1 Bouv. Inst. n. 83. 
 
 Potestas stricte interpretatur. Power should be 
 strictly interpreted. Jenk. Cent. 17. 
 
 Potestas suprema seipsum dissolvere potest, ligdM 
 non potest. Supreme power can dissolve, but 
 cannot bind itself. Bacon, Max. Beg. 19. 
 
 Potior est conditio defendentis. . Better Is the 
 condition of the defendant (than that of the 
 plaintiflT). Broom, Max. 740 ; Cowp,843 ; 15 Pet. 
 471 ; 31 Pick. 389 ; 23 id. 186,- 187 ; 107,MasB.«0. 
 
 Potior est conditio possidentis. Better is the 
 
MAXIM 
 
 203 
 
 MAXIM 
 
 condition of tlie possessor. Broom, Max. 315 n, 
 719 ; 6 Mass. 84, 381 ; 21 Pick. 140. 
 
 Prcedinm tervit prcedio. Land is under servi- 
 tude to land. (i. e. Servitudes are not personal 
 rights, but attach to the dominant tenement.) 
 Trayner, Max. 455. 
 
 Prapropera eonsilia raro mnt prospera. Hasty 
 counsels are seldom prosperous. 4 Inst. 57. 
 
 Prcescriptio est titiilzts ex usu et tempore aubstaii- 
 tiam capiens ab auctoritate legis. Prescription is 
 a title by authority of law, deriving its force 
 from use and time. Co. Litt. 113. 
 
 PrcBscriptio et exeaitii non pertitunt ad valorem 
 contractitSj sed ad tempua et modum actionis insti- 
 tuetidce. Presoriptiou and execution do not affect 
 the validity of the contract, but the time and 
 manner of bringing an action. 8 Mass. 84 ; 3 
 Johns. Ch. 190, 219. 
 
 Prmentare nihil aliud est qtiam prcesto dare seu 
 offere. To present is no more than to give or offer 
 on the spot. Co. Litt. 120. 
 
 Prcesentia corporis tollit errorem nominis, et Veri- 
 tas nominis tollit errorem demonstrationis. The 
 presence of the body cures the error in the name ; 
 • the truth of the name cures an error in the de- 
 scription. Bacon, Max. Eeg. 25 ; Broom, Max. 
 637, 639, 640 ; 6 Co. 66 ; 3 B. & Ad. 640 ; 6 Term, 
 675; lie. B. 996; IH.L. 0.793; 3DeG.M.& 
 G. 140. 
 
 Prastat eaiUela quammedela. Prevention is 
 better than cure. Co. Litt. 304. 
 
 Frasumatur pro justitia lententice. The justice 
 of a sentence should be presumed. Best, £v. 
 Int. 42 ; Mascardus deprob. cone. 1237, n. 2. 
 
 Prcesitmitur pro legitimatione. Legitimacy is 
 to be presumed. 5 Co. 98 ft ; 1 Bla. Com. 457. 
 
 Priesumitur pro legitimatione. There is a pre- 
 sumption in favor of legitimation. 5 Oo. 98 b ; 
 1 Sharsw. Bla. Com. 457. 
 
 Prceaumptio, ex ^eo quod plerumqite fit. Pre- 
 sumptions arise from what generally happens. 
 22 Wend. 425, 475. 
 
 Prcesmnptio violenta, plena prdbatio. Violent 
 presumption is full proof. 
 
 Prtcsumptio violenta valet in lege. Strong pre- 
 sumption avails in law. Jenk. Cent. 58. 
 
 Prcemmptiones sunt conjeeturce ex signo verisi- 
 mfli ad probandum asmmptce. Presumptions are 
 conjectures from probable proof, assumed for 
 purposes of evidence. J. Voet. ad Pand. 1. 22, 
 tit. 3, n. 14. 
 
 Pratextu lictti non debet admitti illieitum. 
 Under pretext of legality, what is illegal ought 
 not to be admitted. 10 Co. 88. 
 
 Praxis judiciim est interpres legum. The prac- 
 tice of the judges is the interpreter of the laws. 
 Hob. 96 ; Branch, Prlnc. 
 
 Precedents have as much law as justice. 
 
 Precedents that pass sub-sUentio are of little or 
 no authority. 16 Vin. Abr. 499. 
 
 Pretium succedit in locum rei. The price stands 
 in the place of the thing sold. 1 Bouv. Inst. n. 
 939 ; 2 Bulstr. 313. 
 
 Previous intentions are judged by mbsequent acts. 
 4 Denio, 319, 320. 
 
 Prima pars cequitatis aqualitas. The radical 
 element of equity is equality. 
 
 Primo excutienda est verbi vis, ne sernwnis vitio 
 obstructur oratio, sive lex sine argumentis. The 
 force of a word is to be first examined, lest by 
 the fault of diction the sentence be destroyed or 
 the law be without arguments. Co. Litt. 68. 
 
 Princeps et respubliea ex justa causa pessunt 
 rem meam auferre. The king and the common- 
 wealth for a just cause can take away my pro- 
 perty. 13 Co. 13. 
 
 Primeeps legibus solutus est. The emperor is 
 free from laws. Dig. 1. 3. 31 ; Halifax, Anal, 
 prev. vi, vii, note. 
 
 Pi'ineipalis debet semper exeuti aniequam per- 
 veniatur ad fldeijussores. The principal should 
 always be exhausted before coming upon the 
 sureties. 2 Inst. 19. 
 
 Principia data seqmmtur concomitantia. Griven 
 principles are followed by their concomitants. 
 
 Prineipia probant, non probantur. Principles 
 prove, they are not proved. 3 Co. 40. See Pbin- 
 
 CIFLES. 
 
 Prineipiis obsta. Oppose beginnings. Branch, 
 Princ. 
 
 Prindpiorum non est ratio. There is no rea- 
 soning of principles. 3 Bulstr. 339. See Pbin- 
 
 CIPLE9. 
 
 Prineipium est potissima pars eujusque rei. The 
 beginning is the most powerful part of a thing. 
 10 Co. 49. 
 
 Prior tempore J potior jure. He who is first in 
 time is preferred in right. Co. Litt. 14 a ; 
 Broom, Max. 854, 358 ; 3 P. Wms. 491 ; ITerm, 
 733 ; 9 Wheat. App. 34. 
 
 Privatio prasupponit habitum. A deprivation 
 presupposes a possession. 3 EoUe, 419. 
 
 Privatis pactionibus non dubium est non Icedi 
 jus cceterorum. There is no doubt that the 
 rights of others cannot be prejudiced by private 
 agreements. Dig. 2. 15. 3. pr.; Broom, Max. 
 697. 
 
 Privatorum conventio juri publico non derogat. 
 Private agreements cannot derogate from public 
 law. Dig. 50. 17. 45. 1 ; Broom, Max. 695. 
 
 Privatum commodum publico cedit. Private 
 yields to public good. Jenk. Cent. 273. 
 
 Privatum incommodum publico Tiono pensatur. 
 Private inconvenience is made up for by public 
 good. Broom, Max. 7. 
 
 Privilegium est befiefieium personate et extin- 
 guitur cum, persona. A privilege is a personal 
 benefit and dies with the person. 3 Bulstr. 8. 
 
 Privilegium est quasi privata lex. A privilege is, 
 as it were, a private law. 3 Bulstr. 189. 
 
 Privilegium, non valet contra rempublicam. A 
 privilege avails not against the commonwealth. 
 Bacon, Max. 35 ; Broom, Max. 18 ; Noy, Max. 
 9th ed. 34. 
 
 Pro possessore habetur qui dolo injuriave desiit 
 possidere. He is esteemed a possessor whose pos- 
 session has been disturbed by fraud or injury. 
 Off. Ex. 166. 
 
 Probandi necessitas incumbit Uli qui agit. The 
 necessity of proving lies with him who sues. 
 Inst. 2. 20. 4. 
 
 Probationes debent esse evidentes, {id est) per- 
 spicuce et faciles intelligi. Proofs ought to be 
 made evident, (that is) clear and easy to be un- 
 derstood. Co. Litt. 283. 
 
 Probatis extremis, preesumitur media. The ex- 
 tremes being proved, the intermediate proceed- 
 ings are presumed. 1 Greenl. Ev. § 20. 
 
 Processus legis est gravis vexatio, executio legis 
 coronal opus. The process of the law is a 
 grievous vexation; the execution of the law 
 crowns the work. Co. Litt. 389. 
 
 Prohibetwr ne quis facial in suo quod nocere pos- 
 sit alieno. It is prohibited to do on one's own 
 property that which may Injure another's. 9 
 Co. 59. 
 
 Proles seqwitur sortem patemam. The offspring 
 follows the condition of the father. 1 Sandf. 
 583, 660. 
 
 Propinquior excludit propirtquum ; propinqwug 
 remotum; et remotus remotiorem,. He who is 
 nearer excludes him who is near ; he who is 
 near, him who is remote ; he who is remote, him 
 who is more remote. Co. Litt. 10. 
 
 Propositum indeflnitum eequipoUet umiversali. 
 An indefinite proposition is equal to a general one. 
 
 Proprietas totius navis carina causam sequitur. 
 The property of the whole ship follows the 
 
MAXIM 
 
 204 
 
 MAXIM 
 
 ownership of the keel. Dig. 6. 1. 61 ; 6 Pick. 320. 
 (Provided it had not been constructed with the 
 materials of another, /d.) 2 Kent, 362. 
 
 H'oprietas verborum est salus proprietatum. 
 The propriety of words is the safety of property. 
 
 Proprietates vei-boram observandce sunt. Tlie 
 proprieties (i. e. proper meanings) of words are 
 to be observed. Jenk. Cent. 136. 
 
 Protectio trahit subjectionem, subjeetio proteetio- 
 nem. Protection draws to it subjection ; subjec- 
 tion, protection. Co. Litt. 65 ; Broom, Max. 78. 
 
 Proviso est providere pr(esentia et futuraj non 
 pi-teterUa. A proviso is to provide for the present 
 and the future, not the past. 2 Co. 72 ; Vaugh. 
 279. 
 
 Proximus est cui nemo antecedit ; supremus est 
 qiiem nem.o sequitur. He is first whom no one 
 precedes ; he is last whom no one follows. Dig. 
 60. 16. 92. 
 
 Prudenter agit qui praeepto legis obtemperat. 
 He acts prudently who obeys the commands of 
 the law. 5 Co. 49. 
 
 Pueri sunt de sanguine parentum, sed pater et 
 mater non sunt de sanguine puerorem. Children 
 are of the blood of their parents, but the father 
 and mother are not of the blood of their chil- 
 dren. 3 Co. 40. 
 
 Pupillus pati posse non intelligitur. A pupil is 
 not considered able to do an act which would be 
 prejudicial to him. Dig. SO. 17. 110. 2 ; 2 Kent, 
 245. 
 
 Purchaser without notice is not obliged to dis- 
 cover to his own hurt. See 4 Bouv. Inst. n. 4336. 
 See Ihpba Pb^sidu. 
 
 Quae ab hostibus capiuntur, statim capientium 
 fixmt. Things taken from public enemies imme- 
 diately become the property of the captors. Inst. 
 2. 1. 17 ; Grotius dejur. Bell. 1. 3, c. 6. § 12. 
 
 Qiiue ab initio inutilisfwit institutio, ex post facto 
 convalescere non potest. An institution void in 
 the beginning cannot acquire validity from after- 
 matter. Dig. 50. 17. 210. 
 
 Qum ab initio non valent, ex post facto convales- 
 cere non possunt. Things invalid from the be- 
 ginning cannot be made valid by subsequent 
 act. Trayner, Max. 482. 
 
 QwB accessionum locum obfineni, extinguuntur 
 cum principcdes res peremptae fuerint. When the 
 principal is destroyed, those things which are 
 accessory to it are also destroyed. Pothier,Obl. 
 pt. 3, c. 6, art. 4 ; Dig. 33. 8. 3 ; Broom, Max. 496. 
 
 QiuB ad unum Jinem locuta swnt, non deberti 
 ad dlium detorqueri. Words spoken to one end 
 ought not to be perverted to another. 4 Co. 14. 
 
 Quce eohcerent personee a persona separari neque- 
 unt. Things which belong to the person ought 
 not to be separated from the person. Jenk. Cent. 
 28. 
 
 Qu<e eommuni legi derogant striate interpretan- 
 tur. Laws which derogate from the common 
 law ought to be strictly construed. Jenk. Cent. 
 331. 
 
 Qua contra rationem juris introducta sunt, non 
 debent trahi in consequentiam. Things introduced 
 contrary to the reason of the law ought not to 
 be drawn into precedents. 12 Co. 75. 
 
 Quce dviiitationis causa tollendce inseruntur 
 communem legem non Icedunt, Whatever is in- 
 serted for the purpose of removing doubt does 
 not hurt or affect the common law. Co. Litt. 205. 
 
 Quce dubitationis tollendce causa contractibus <«- 
 seruntur, jus commune non laedtmt. Particular 
 clauses inserted in agreements to avoid doubts 
 and ambiguity do not prejudice the general law. 
 Dig. 60. 17. 81. 
 
 Qua in curia acta sunt rite agi prasumuntur. 
 Whatever is done in court is presumed to be 
 rightly done. 8 Bulstr. 43. 
 
 Qua in partes dividi nequeimt solida a singuld 
 prastantur. Things (i. e. services and rente) 
 which cannot be divided into parts are rendered 
 entire by each severally. 6 Co. 1. 
 
 Qua in testamento ita sunt scripta ut intenigi 
 non possunt, perinde sunt ac si scripta noti esaent 
 Things which are so written in a will that they 
 cannot be understood, are as if they had not bem 
 written. Dig. 60. 17. 73. 3. 
 
 Qua incontinenter vel certoflmtt in esse videntur. 
 Whatever things are done at once and certainly' 
 appear part of the same transaction. Cc'Litt. SasI 
 
 Qua inter alios acta sunt nemini nocere debeni 
 sed prodesse possmtt. Transactions between 
 strangers may benefit, but cannot injure, persons 
 who are parties to them. 6 Co. 1. 
 
 Qua legi eommmni derogant nMi stmt trahenit 
 in exemplum. Things derogatory to the common 
 law are not to be drawn into precedent. Branch 
 Princ. ' 
 
 Qua legi eommuni derogant stride interpretan- 
 tur. Those things which derogate from the com- 
 mon law are to be construed strictly. Jenk, 
 Cent. 29. 
 
 Qua mMla sunt inchoata in principio vix hno 
 peragantur exitu. Things bad in the commence- 
 ment seldom end well. 4 Co. 3. 
 
 Qua non fieri debent, facta valent. Thing! 
 which ought not to be done are held valid when 
 they have been done. Trayner, Max. 484. 
 
 Qiue non valeant singula, juncta jnvant. Thing) 
 which may not avail singly, when united have 
 an effect. 8 Bulstr. 132 ; Broom, Max. 588. 
 
 Qua prater consuetttdinem et morem mnjonm 
 flvmt, neque placent, neque recta videntur. "What 
 is done contrary to the custom and usage of onr 
 ancestors, neither pleases nor appears right. 4 
 Co. 78. 
 
 Qua propter necessitatem reeepta sunt, non ie- 
 bent in argvmentvm trahi. Things which are 
 tolerated on account of necessity ought not to he 
 drawn into precedent. Dig. 60. 17. 162. 
 
 Qua rerum natura prohibentur, nulla lege cm- 
 flrmata sunt. What is prohibited in the nature 
 of things can be confirmed by no law. Finch, 
 Law, 74. 
 
 Qva singula non prosunt, juncta juvant. Things 
 which taken singly are of no avail afford help 
 when taken together. Trayner, Max. 486. 
 
 Quee sunt m.inoris culpa sunt majoris in/amio. 
 Things which are of the smaller guilt are of the 
 greater Infamy. Co. Litt. 6. 
 
 Qucecunque intra rationem legis inveniimtvr,iii- 
 tra legem ipsam esse judicatitur. Whatever ap- 
 pears within the reason of the law, is considered 
 within the law itself. 3 Inst. 689. 
 
 Qualibet concessio fortissime contra donatorm 
 interpretanda est. Every grant is to be taken 
 most etrangly against the grantor. Co. Litt. 
 183 a ; 7 Mete. 516. 
 
 Queelibet jurisdietio cancellos suos Iidbet. Every 
 jurisdiction has its bounds. Jenk. Cent. 139. 
 
 Qualibet poena corporalis, quamvis tninimii, w* 
 jor est qualibet poena pecuniaria. Every corporal 
 punishment, although the very least, is greater 
 than any pecuniary punishment. 3 Inst. 280. 
 
 Quaras de dttbiis, legem bene diseere si vis. In' 
 quire into doubtful points if you wish to under- 
 stand the law well. Littl. § 443. 
 
 Queere de duMis, quia per rationes pervenitiir si 
 legitimam rationem. Inquire into doubtful points, 
 because by reasoning we arrive at legal reason. 
 Littl. § 877. 
 
 Qaarere dat sapere qua sunt legitima vere. To 
 investigate is the Way to know what things art 
 really lawful. Littl. § 443. 
 
 QualUai qua inesse debet, facile prcaumii^' ^ 
 quality which ought to form a part is easily pre- 
 sumed. 
 
MAXIM 
 
 20S 
 
 MAXIM 
 
 Quam longrnn debet es»a rationabile tempuB, non 
 d^nitur in lege, sedpendet ex dincretione jutticia- 
 riorvm. What is reasonable time the law does 
 not define ; It Is left to the discretion of the 
 judges. Co. Litt. 56. See 11 Co. H. 
 
 Quam rationabilii debet ease finis, non d^nitur, 
 tedomniims circumstantiis inspectis pendet ex jus- 
 tidariorum diseretione. What a reasonable fine 
 ought to be Is not defined, but is left to the dis- 
 cretion of the judges, all the circumstances being 
 considered. 11 Co. 44. 
 
 Quamvis aliquid per ae non sit malum, tamen 
 si sit mali exempli, non est faciendum. Although 
 in itself a thing may not be bad, yet if it holds 
 out a bad example it is not to be done. 3 Inst. 
 564. 
 
 Quamvis lex ffeneraliter loquitur, restringenda 
 tamen est, ut cessante ratione et ipsa eessat. Al- 
 though the law speaks generally, it is to be re- 
 strained, since when the reason on which it is 
 founded fails, it fails. 4 Inst. 330. 
 
 Quando aiiqiiid eonceditur, conceditur id sine 
 quo illud fieri non poasit. When any thing is 
 granted, that also is granted without which it 
 cannot be of efiTect. 9 Barb. 516, 518 ; 10 id. 
 8S4, 359. 
 
 Quando aliquid mandatur, majidatur et omne 
 per quod pervenitur ad iUud. When any thing 
 -is commanded, every thing by which it can be 
 accomplished is also commanded, 5 Co. 116. 
 See 7 C. B. 886 ; 14 id. 107 ; 6 Exch. 886, 889 ; 
 10 id. 4i9; 2 E. & B. 301 ; .8 Cusb. 345 ; Broom, 
 Max. 485. 
 
 Quando aliquid per ae non sit malum, tamen si 
 sit mali exempli, non eat faciendum. When any 
 thing by itself is not evil, and yet may be an ex- 
 ample for evil, it is not to be done. 2 Inst. 564. 
 
 Quando aliquid prohibetur ex direeto,prohibetur 
 et per obliquum. When any thing is prohibited 
 directly. It is also prohibited indirectly. Co. Litt. 
 223. 
 
 Quando aliquid prohibetur, prohibetur omne 
 per qiwd devenitur ad Ulud. When any thing is 
 prohibited, every thing by which it is reached is 
 prohibited. 2 Inst. 48 ; Broom, Max. 433, 489 ; 
 Wing. Max. 618. See 7 CI. & F. 509, 546 ; 4 B. 
 & C. 187, 193 ; 3 Term, 251, 252 ; 8 id. 301, 415 ; 
 15 M. & W. 7 ; 11 Wend. 329. 
 
 Quando (Uiquis aliquid aoncedit, concedere vide- 
 tur et id sine quo res uti non potest. When a per- 
 son grants a thing, he is supposed to grant that 
 also without which the thing cannot be used. 8 
 Kent, 421 ; 24 Pick. 104. 
 
 Quando charta continet generdlem clausulam, 
 post eaque descendit ad verba specialia qua 
 clceusulce generali sunt consentanea, interpretanda 
 eit charta secundum verba specialia. When a deed 
 contains a general clause, and afterwards de- 
 scends to special words, consistent with the 
 general clause, the deed is to be construed ac- 
 cording to the special words. 8 Co. 154. 
 
 QuoTido de una et eadem re, duo onerabHes exis- 
 tv/nt, wnus, pro insuffi^ientia alterius, de integro 
 onerabatur. When two persons are liable con- 
 cerning one and the same thing, If one makes de- 
 fault the other must bear the whole. 3 Inst. 
 377. 
 
 Quando dispoaiiio referri potest ad duaa res, ita 
 ■quod secundum relaiianem unam. vitiatur et secun- 
 dum cdteram utUis ait, tumfadenda est relatio ad 
 niam ut valeat dispositio. When a disposition 
 may be made to refer to two things, so that ac- 
 cording to One reference it would be vitiated and 
 by the other it would be made effectual, such a 
 reference must be made that the disposition shall 
 have efi'ect. 6 Co. 76 5. 
 
 Quando dioerai desiderantur acttts ad aUquem 
 •aiatum perfidendum, plus respicit lex actum origU 
 nalem. When different acts are required to the , 
 
 formation of an estate, the law chiefly regards 
 the original act. 10 Co. 49. 
 
 Qtiando duo jura concurrent^ in una persona, 
 cequum est ae si esaent in dviiersia. When two 
 rights concur in one person, It is the same as If 
 they were in two separate persons. 4 Co, 118 ; 
 Broom, Max. 531. 
 
 Quando jus domini regis et ambditi concummt 
 jus regis pratferri debet. When the right of the 
 sovereign and of the subject concur, the right of 
 the sovereign ought to be preferred, 1 Co. 139 ; 
 Co. Litt. 30 6 ; Broom, Max. 69. 
 
 Quando lex aliquid alicui concedit, concedere 
 videtur id siTie quo res ipsa esse non potest. When 
 the law gives any thing, it gives the means of 
 obtaining it. 5 Co. 47 ; 3 Kent, 421. 
 
 QuaTido lex aliquid alicui concedit, omnia imci- 
 dentia tacite conceduntur. When the law gives 
 any thing, it gives tacitly what Is Incident to it. 
 2 Inst. 3^6 ; Hob. 234. 
 
 Quando lex aliquid alicui concedit, conceditur et 
 id sine quo res ipsa esse non potest. When the law 
 grants a thing to any one. It grants that also 
 without which the thing Itself cannot exist. 
 Broom, Max. 486-7 ; 15 Barb. 153, 160. 
 
 Q'lando lex eat specialia, ratio autem genercUis, 
 geiici'dliter lex est intelligenda. When the law Is 
 special, but Its reason is general, the law Is to 
 be understood generally. 2 Inst. 83 ; 10 Co. 101. 
 
 Quando licet id quod majus, videtur licere id 
 quod minus. When the greater is allowed, the 
 less seems to be allowed also. Shep. Touch. 
 429. 
 
 Quando plus fit quam fieri debet, videtur etiam 
 Ulud fieri quod faciendum est. When more Is 
 done than ought to be done, that at least shall 
 be considered as performed which should have 
 been performed (as, If a man, having a power to 
 make a lease for ten years, make one for twenty 
 years. It shall be void only for the surplus). 
 Broom, Max. 177 ; 5 Co. 115 ; 8 id. 85 a. 
 
 Quando quod ago non valet ut ago, valeat quan- 
 tum valere potest. When that which I do does 
 not have effect as I do It, let it have as much 
 effect as it can. 16 Johns. 172, 178 ; 3 Barb. Ch. 
 343, 261. 
 
 Quan,do res non valet ut ago, valeat quantum 
 valere potest. When the thing Is of no force as I 
 do it, it shall have as much as it can have. Cowp. 
 600 ; Broom, Max. .543 ; 2 Sm. L. C. 394 ; 6 East, 
 105 ; 1 Ventr. 316 ; 1 H. Bla. 614, 620 ; 78 Penn. 
 219. 
 
 Quando verba et mens congruunt, non est inter- 
 pretationi locus. When the words and the mind 
 agree, there is no place for interpretation. 
 
 Quando verba statuti sunt specialia, ratio autem 
 generalis, genercditer statutum eat inteUigendum. 
 When the words of a statute are special, but the 
 reason or object of It general, the statute is to be 
 construed generally. 10 Co. 101 6. 
 
 Quemadmodumad qucestionem facti non reapon- 
 dent jttdices, ita ad quaationem juris non respon- 
 dent juratores. In the same manner that judges 
 do not answer to questions of fact, so jurors do 
 not answer to questions of law. Co. Litt. 395. 
 
 Qui accusal integrm farmx sit et non criminoaua. 
 Let him who accuses be of clear fame, and not 
 criminal, 3 Inst. 26. 
 
 Qui acquirit aibi acquirit hceredibus. He who 
 acquires for himself acquires for his heirs, 
 Trayner, Max. 496. 
 
 Qui adimit medium dirimit finem. He wno 
 takes away the means destroys the end, Co. 
 Litt, 161. 
 
 Qui aliquid statuerit parte inaudita altera, 
 cequum. licet dixerit, haud cequum facerit. He who 
 decides any thing, one party being unheard, 
 though he should decide right, does wrong. 6 
 Co. 53 ; 4 Bla. Com. 483. 
 
MAXIM 
 
 206 
 
 MAXIM 
 
 Qui alterius jure utitur, eodem jure uti debet. 
 He who uses the right of another ought to use 
 the same right. Pothier, Tr. Be Change, pt. 1, 
 0. 4, § 114 ; Broom, Max. 473. 
 
 Qui bene distingv.it, bene docet. He who dis- 
 tinguishes well, teaches well. 3 Inst. 470. 
 
 Qui bene interrogat, bene docet. He who ques- 
 tions well learns well. 3 Bulstr. 237. 
 
 Qui cadit a syllaba cadit a tota causa. He who 
 fails in a syllable fails in his whole cause. Bract, 
 fol. 211 ; Stat. Wales, 12 Edw. I. ; 3 Sharsw. Bla. 
 Com. 407. 
 
 Qui concedit aliquid, coneedere videtur et id sine 
 quo concessio est irrita, sine quo res ipsa esse non 
 potuit. He who grants any thing is considered 
 as granting that without which his grant would 
 be idle, without which the thing itself could not 
 exist. 11 Co. 52 ; Jenk. Cent. 33. 
 
 Qui confirmat nihil dat. He who confirms does 
 not give. 2 Bouv. Inst. n. 2069. 
 
 Qui contemnit prceceptum, contemnit pracipien- 
 tem. He who contemns the precept contemns the 
 party giving it. 12 Co. 96. 
 
 Qui cum alio contrahit, vel est vel debet esse non 
 ignarus conditionis ejus. He who contracts 
 knows, or ought to know, the quality of the per- 
 son with whom he contracts (otherwise he is not 
 excusable). Dig. 50. 17. 19 ; Story, Confi. § 76. 
 
 Qui dat flnem, dat media ad finem neeessaria. 
 He who gives an end gives the means to that end. 
 3 Mass. 129. 
 
 Qui destruit medium,, destruit flnem. He who 
 destroys the means destroys the end. 11 Co. 61 ; 
 Shep. Touch. 342 ; Co. Litt. 161 a. 
 
 Qui doit inheriter al pire, doit inheriter al flls. 
 He who ought to inherit from the father ought 
 to inherit from the son. 2 Bla. Com. 250, 273 ; 
 Broom, Max. 517. 
 
 Qui evertit causam, evertit causatum futurum,. 
 He who overthrows the cause overthrows its fu- 
 ture effects. 10 Co. 51. 
 
 Qui ex damnato coitu nascuntur, inter liberos 
 non computentur. They who are born of an illicit 
 union should not be counted among children. 
 Co. Litt. 8. See 1 Bouv. Inst. n. 289 ; Bract. 5 ; 
 Broom, Max. 519. 
 
 Qui facit id quod plus est, faeit id quod minus 
 est, sed non convertitur. He who does that which 
 is more does that which is less, but not vice versa. 
 Bracton, 207 6. 
 
 Qui facit per alium facit per se. He who acts 
 through another acts himself (i. e. the acts of 
 an agent are the acts of the principal) . Broom, 
 Max. 818 et seq.; 1 Sharsw. Bla. Com. 429 ; Story, 
 Ag. § 440 ; 2 Bouv. Inst. nn. 1273, 1335, 1336 ; 7 
 M. & G. 32, 33 ; 16 M. & W. 26 ; 8 Scott, N. R. 
 690 ; 6 CI. & F. 600 ; 10 Mass. 165 ; 3 Gray, 361 ; 
 11 Mete. 71. 
 
 Qui habet jurisdictionem absolvendi, habet juris- 
 dictionem ligandi. He who has jurisdiction to 
 loosen has jurisdiction to bind. 12 Co. 59. 
 
 Qui hceret in litera, hoeret in cortice. He who 
 adheres to the letter adheres to the bark. Broom, 
 Max. 685 ; Co. Litt. 289 ; 5 Co. 4 6 ; 11 id. 34 6 ; 12 
 East, 373 ; 9 Pick. 317 ; 22 id. 657 ; 1 S. & R. 253. 
 
 Qui ignorat quantum solvere debeat, non potest 
 improb^ videre. He who does not know what 
 he ought to pay does not want probity in not 
 paying;. Dig. 50. 17. W. 
 
 Qui in jus dominiumve alterius succeditjure ejus 
 uti debet. He who succeeds to the right or prop- 
 erty of another ought to use his right (i. e. holds 
 it subject to the same rights and liabilities as at- 
 tached to it in the hands of the assignor). Dig. 
 50. 17. 177 ; Broom, Max. 473, 478. 
 
 Qui in utero est, pro jam nato habetur quoties 
 de ejus commodo quceritur. He who is in the 
 womb Is considered as bom, whenever his benefit 
 is concerned. 
 
 Qui Jure mo vtitur, nemini faeit injuriam. He 
 who uses his legal rights harms no one. 8 Grau 
 424. See Broom, Max. 879. '' 
 
 Quijussujudicis aliquodfecerit non videtur iolo 
 malofedsse, quia parere necesse est. He whodoee 
 any thing by command of a judge will not be 
 supposed to have acted from an improper motive 
 because it was necessary to obey. 10 Co 76 ■ Dl^' 
 50. 17. 167. 1 ; Broom, Max. 93. ' ^' 
 
 Qui male agit, edit lucem. He who acts badlv 
 hates the light. 7 Co. 66. ' 
 
 Qui mandat ipsefecissi videtur. He who com- 
 mands (a thing to be done)iE held to have done 
 it himself. Story, Bailm. § 147. 
 
 Qui melius, probat, melitis habet. He who 
 proves most recovers most. 9 Vin. Abr. 235, 
 
 Qui molitur insidias in patriam, id facit quod 
 insanus nauta perforans navem in qua vehitur. He 
 who betrays his country is like the insane sailor 
 who bores a hole in the ship which carries him 
 3 Inst. 36. 
 
 Qui nascUur sine legitimo matrimonio, matrem 
 sequitur. He who is bom out of lawful matri- 
 mony follows the condition of the mother. 
 
 Qui non caditnt in eonstantem virum, vani 
 timores mint cestimandi. Those are to be esteemed 
 vain fears which do not afiect a man of a firm 
 mind. 7 Co. 27. 
 
 Qui non habet, Ule non dat. Who has not, he 
 gives not. ■ Shep. Touch. 243 ; 4 Wend. 619. 
 
 Qui non habet in are luat in corpore, ne qnii 
 peccetur impune. He who cannot pay with his 
 purse must suffer in his person, lest he who of- 
 fends should go unpunished. 2 Inst. 173 ; 4Bla. 
 Com. 30. 
 
 Qui non habet potestatem alienandi habet necmi- 
 tatem retinendi. He who has not the power of 
 alienating is obliged to retain. Hob. 386. 
 
 Qui non impi-dbat, approbat. He whodoesnot 
 disapprove, approves. 3 Inst. 37. 
 
 Qui non lihere veritatem pronundat, proditor 
 est veritatis. He who does not freely speak the 
 truth is a betrayer of the truth. 
 
 Qui non negat, fatetur. He who does not deny, 
 admits. Trayner, Max. 503. 
 
 Qui non obstat quod obstare potest facere side- 
 tur. He who does not prevent what he can, 
 seems to commit the thing. 3 Inst. 146. 
 
 Qui non prohibet cum prohibere possit, jvM, 
 He who does not forbid when he can forbid, 
 commands. 1 Sharsw. Bla. Com. 430. 
 
 Qui non prohibet quod prohibere potest astm- 
 tire videtur. He who does not forbid what he 
 can forbid, seems to assent. 2 Inst. 308; 8 
 Exch. 304. 
 
 Qui non propulsat injuriam quando potest, in- 
 fert. He who does not repel a wrong when he 
 can, occasions it. Jenk. Cent. 271. 
 
 Qui obstruit aditum, destruit commodum. He 
 who obstructs an entrance destroys a conveni- 
 ency. Co. Litt. 161. 
 
 Qui omne dicit, nihil exclttdit. He who saysall 
 excludes nothing. 4 Inst. 81. 
 
 Qui parcit nocentibus innocentes punit. He 
 who spares the guilty punishes the innocent. 
 Jenk. Cent. 126. 
 
 Quipeccat ebrius, luat sobrius. He who offends 
 drunk must be punished when sober. Car. 138 j 
 Broom, Max. 17. 
 
 Qui per alium facit per seipsmn facere videtur. 
 He who does any thing through another is con- 
 sidered as doing it himself. Co. Litt. 268^ 
 Broom, Max. 817.- 
 
 Qui per fraudem agit, frustra agit. He who 
 acts fraudulently acts in vain. 2 Bolle, 17. 
 
 Qui potest et debet vetare, tacens jubet. He who 
 can and ought to forbid, and does not, com- 
 mands. 
 
MAXIM 
 
 207 
 
 MAXIM 
 
 Qui primum peccat ille facU rixam. He who 
 flrBt offends causes the strife. 
 
 Qui prior est tempore, potior est jure. He who 
 is prior In time is stronger in right. Broom, 
 • Max. 3.53 et seq.; Co. Litt. 14 a ; 1 Story, Eq. 
 Jur 5 64 d ; Story, Bailm. § 312 ; 1 Bouv. Inst. 
 n flsl -4 id 3728 : 97 Mass. 108 ; 100 id. 411 ; 
 3East; 93 ; 10 Watts, 24 ; 24 Miss. 208. 
 
 Qui pro me aliquid facit, mihi fecisse videtur. 
 He who does any benefit for me (to another) is 
 considered as doing it to me. 2 Inst. 501. 
 
 Quiprovidet sibi, providet htsredibus. He who 
 provides for himself provides for his heirs. 
 
 Qui rationem in omnibus quarwnt, rationem 
 subvertunt. He who seeks a reason for every 
 thing subverts reason. 2 Co. 75 ; Broom, Max. 
 157. 
 
 Qui sciens solvit indebitum donandi eonsUio id 
 mdetur fecisse. One who knowingly pays what 
 is not due, is supposed to have done it with the 
 intention of making a gift. 17 Mass. 388. 
 
 Qui semel actionem renunciaverit, ampliws repe- 
 tere nan potest. He who renounces his action 
 once cannot any more bring it. 8 Co. 59. See 
 Retraxit. 
 
 Qui semel malus, semper prcesumitnr esse malus 
 in eodem genere. He who is once bad is presumed 
 to be always so in the same degree. Cro. Car. 
 317 ; Best, Ev. 345. 
 
 Qui sentit comjnodum., seniire debet et onus. He 
 who derives a benefit from a thing ought to bear 
 the disadvantages attending it. 2 Bouv. Inst. n. 
 1433 : 2 W. & M. 217 ; 1 Stor. Const. 78 ; Broom, 
 Max. 706 et seq. ; 17 Pick. 530, 537 ; 2 Binn. SOS," 
 571. 
 
 Qui sentit onus, sentire debet et commodum. He 
 who bears the burden ought also to derive the 
 benefit. 1 Co. 99 a ; Broom, Max. 712 et seq. ; 
 1 S. & R. 180 ; Francis, Max. 5. 
 
 Qui tacet consentire videtur. He who is silent 
 appears to consent. Jenk. Cent. 32 ; Broom, 
 Max. 138, 787 ; 2 Pick. 73, n. ; 119 Mass. 515. 
 
 Qui tacet consentire uidetur ubi traxtatw de efua 
 commodo. He who is silent is considered as as- 
 senting, when his advantage is debated. 9 Mod. 
 38. 
 
 Qui tacet non utique fatetur, sed tamen verum 
 est eum non negare. He who is silent does not 
 indeed confess, but yet it is true that he does not 
 deny. Dig. 50. 17. 142. 
 
 Qui tardius solvit, mAnus solvit. He who pays 
 tardily pays less than he ought. Jenk. Cent. 
 38. 
 
 Qui timent, cavent et vitant. They who fear 
 take care and avoid. Off. Ex. 162; Branch, 
 Princ. 
 
 Qui milt decipi, decipiatur. Let him who wishes 
 to he deceived, be deceived. Broom, Max. 782, 
 n. ; 1 De G., M. & G. 687, 710 ; Shep. Touch. 56 ; 
 43 Cal. 110. 
 
 Quicquid acquiritur servo, aequiritur domino. 
 Whatever is acquired by the servant is acquired 
 for the master. 15 Vin. Abr. 327. 
 
 Quicquid demonstratfe rei additwr satis demoTi- 
 stratce frustra est. Whatever is added to the de- 
 scription of a thing already sufficiently described 
 is of no effect. Dig. 33. 4. 1. 8 ; Broom, Max. 630. 
 
 Quicquid est contra normam recti est injuria. 
 Whatever is against the rule of right is a wrong. 
 3 Bulstr. 313. 
 
 Quicquid in exeessu actum est, lege prohibitur. 
 Whatever is done ip excess is prohibited by law. 
 
 3 Inst. 107. 
 
 Quicquid judicis auctoritafi subjicitur, novitati 
 non subjicitur. Whatever is subject to the au- 
 thority of a judge is not subject to innovation. 
 
 4 Inst. 66. 
 
 Quicquid plantatur solo, solo cedit. Whatever 
 is afllxed to the soil belongs to it. Off. Ex. 145 ; 
 
 8 Gush. 189. See Ambl. 118; 3 East, 51; 
 Broom, Max. 401 et seq. ; Fixtures. 
 
 Quicquid recipitur, recipUur secundum modv/m 
 recipientis. Whatever is received is received ac- 
 cording to the intention of the recipient. Broom, 
 Max. 810 ; Halkers, Max. 149 ; Law Mag. 1855, 
 p. 21 ; 3 Bingh. n. c. 461 ; 2 B. & C. 72 ; 14 Sim. 
 522 ; 2 CI. & F. 681 ; 2 Cr. & J. 678 ; 14 East, 
 239, 243 e. 
 
 Quicquid tolvitm', solvitur secundum modum soU 
 ventis. Whatever is paid is to be applied accord- 
 ing to the intention of the payer. Broom, Max. 
 810 ; 2 Vern. 606. See Appropriation of Pay- 
 ments. 
 
 Quid sit jus, et in quo consistit injuria, legis est 
 deftnire. What constitutes right, and what in- 
 jury, it is the business of the law to declare. Co. 
 Litt. 1.58 6. 
 
 Quidquid enim sive dolo et culpa venditoris ae- 
 cidit in eo venditor securus est. For concerning 
 anything which occurs without deceit and wrong 
 on the part of the vendor, the vendor is secure. 
 4 Pick. 198. 
 
 Quieta non truyvere. Not to unsettle things 
 which are established. 28 Barb. 9, 22. 
 
 QuUibet potest renunciare juri pro se inducto. 
 Any one may renounce a law introduced for his 
 own benefit. To this rule there are some excep- 
 tions. See 1 Bouv. Inst. n. S3 ; Broom, Max. 
 699,705; 3 Curt. C. C. 393 ; lExch. 6.57; 31 
 L. J. Ch. 175 ; 9 Mass. 482 ; 3 Pick. 218 ; 12 
 Gush. 83 ; 5 Johns. Gh. .566. 
 
 Quisquis est qui velit jurisconsultus hdberi, con- 
 tinuet studium, velit a quocwnque doceri. Who- 
 ever wishes to be held a jurisconsult, let him 
 continually study, and desire to be taught by 
 every body. 
 
 Quo ligatur, eo dissolvitur. As a thing is 
 bound, so it is unbound. 2 Bolle, 21. 
 
 Quocumque modo velit, quocumque modo possit. 
 In any way he wishes, in any way he can. 14 
 Johns. 484, 492. 
 
 Quod a quoque pcmce nomine exactum est id 
 eidem restituere nemo cogitur. That which has 
 been exacted as a penalty no one is obliged to 
 restore. Dig. 50. 17. 46. 
 
 Quod ab initio noTi valet, in tractu temporis non 
 eonvalescet. What is not good in the beginning 
 cannot be rendered good by time. Merlin, Rip. 
 verb. Begle de Droit. (This, though true in 
 general, is not universally so.) 4 Go. 26; Broom, 
 Max. 178 ; 5 Pick. 27. 
 
 Quod ad jus naturale attinet, omnes homines 
 (equates sunt. All men are equal as far as the 
 natural law is concerned. Dig. 50. 17. 33. 
 
 Quod cediflcatur in area legato cedit legato. 
 Whatever is built upon land given by will passes 
 with the gift of the laud. Amos & F. Fixtures, 
 246 ; Broom, Max. 424. 
 
 Quod alias bonum et justum est, si per vim vel 
 fraudem petatur, malum et injustum efflcitur. 
 What is otherwise good and just, if sought by 
 force or fraud, becomes bad and unjust. 3 Co. 
 78. 
 
 Quod alias non fuit licitum necessitas licitum 
 facit. Necessity makes that lawful which other- 
 wise were unlawful. Fleta, I. 5, c. 23, § 14. 
 
 Quod approbo non reprobo. What I accept I 
 do not reject. Broom, Max. 712. 
 
 Quod attinet ad jus civile, servi pro nullis haben- 
 tur, non tamen et jure naturali, quia, c[uod ad j«3 
 naturale attinet, omnes homines eequali sunt. So 
 far as the civil law.is concerned, slaves are not 
 reckoned as persons, but not so by natural law, for 
 so far as regards natural law a,ll men are equal. 
 Dig. 50. 17. 33. 
 
 Quod constat dare, non debet verifleari. What 
 is clearly apparent need not be proved. 10 Mod. 
 150 
 
MAXIM 
 
 208 
 
 MAXIM 
 
 Quod constat curicB opere testium nrni indiget. 
 What appears to the court needs not the help of 
 witnesses. 2 Inst. 662. 
 
 Quod contra juris rationem receptwm est, non 
 est prodiicmdum ad comequentias. What has 
 been admitted against the reason of the law, 
 ought not to be drawn into precedents. Dig. 50. 
 17. 141 ; 13 Co. 75. 
 
 Quod contra legem fit, pro infecto habetur. 
 What is done contrary to the law, is considered 
 as not done, i Co. 31. (No one can derive any 
 advantage from such an aet.) 
 
 Quod datum est ecdesice, datum est Deo. What is 
 given to the church is given to God. 2 lust. 590. 
 
 §«od dem^nstrandi causa additur rei satis de- 
 monstrates, frustra fit. What is added to a thing 
 sufficiently palpable, for the purpose of demon- 
 stration, is vain. 10 Co. 113. 
 
 Qmd dubitas, ne feceris. When you doubt 
 about a thing, do not do it. 1 Hale, P. C. 310 ; 
 Broom, Max. 326, n. 
 
 Quod enim semel aut bis existit, pratereunt legis- 
 latores. That which never happens but once or 
 twice, legislators pass by. Dig. 1. 3. 17. 
 
 Quod est ex necessitate nunquam introducitur, 
 nisi quando necessarium. What is introduced of 
 necessity, is never introduced except when neces- 
 sary. 2 Rolle, 512. 
 
 Quod est inconveniens, aut contra rationem non 
 perrnissum est in legeJ What is inconvenient or 
 contrary to reason, is not allowed in law. Co. 
 Litt. 178. 
 
 Quod est necessarium est licitwm. What Is ne- 
 cessary is lawful. Jenk. Cent. 76. 
 
 Quod factum est, cum in obscuro sit, ex affectione 
 cujusque capit interpretationem. When there is 
 doubt about an act, it receives interpretation 
 from the (known) feelings of the actor. Dig. 
 60. 17. 68. 1. 
 
 Quod fisri debet facHe prcesumitmr. That is 
 easily presumed which ought to be done. Halk- 
 ers. Max. 153 ; Broom, Max. 182-3, 297. 
 
 Qttodfiicri non debet, factum valet. What ought 
 not to be done, when done, is valid. 5 Co. 38 ; 
 12 Mod. 438 ; 6 M. <fe W. 58 ; 9 id. 636. 
 
 Quod in jure scripto "jus " appellatur, id in 
 lege Anglice " rectum " esse diciiur. What in the 
 civil law is called "jus," in the law of England 
 is said to be " rectum " (right). Co. Litt. 260 ; 
 Fleta, 1. 6, c. 1, § 1. 
 
 Quod in minori valet, valebit in majori ; et quod 
 in majori non valet, nee valebit in minori. What 
 avails in the less, will avail in the greater ; and 
 what will not avail in the greater, will not avail 
 in the less. Co. Litt. 260. 
 
 Quod in uno simUium valet, valebit in aXtere. 
 What avails in one of two similar things, will 
 avail in the other. Co. Litt. 191. 
 
 Quod inconsulto fecimus, consultius revocemus. 
 What is done without consideration or reflection, 
 upon better consideration we should revoke or 
 undo. Jenk. Cent. 116. 
 
 Quod initio non valet, tractu temporis non valet 
 A thing void in the beginning does not become 
 valid by lapse of time. 1 S. & R. 58. 
 
 Quod initio vitiosum est, non potest tractu tem 
 ports comialescere. Time cannot render valid 
 an act void in its origin. Dig. 50. 17. 29 : Broom, 
 Max. 178. 
 
 Qaod jpsis, qut contraxerunt, obstat, et succes- 
 soribus eorum obstabit. That which bars those 
 who have contracted will bar their successors 
 also. Dig. 50. 17. 103. 
 
 Quodjussu alterius solvitur pro eo est quasi ipsi 
 tolutum esset. That which is paid by the order 
 of another is, so far as such person is concerned, 
 as if it had been paid to himself. Dig. 50. 1? 
 180. 
 
 Quod meum est, sine facto sive defectu meo amitti 
 
 seu in alium transferri non potest. That which 
 is mine cannot be lost or transferred to another 
 without mine own act or default. 8 Co. 98' 
 Broom, Max. 465 ; 1 Prest. Abstr. 147, 318. ' 
 
 Quod meum est sine me auferri non potest, 
 What is mine cannot be taken away without my ' 
 consent. Jenk. Cent. 251. But see Duinbst 
 Domain. 
 
 Quod minus est in obligationem videtur dedue- 
 turn. That which is the less is held to be Im- 
 ported into the contract (e. g. A offers to hire 
 B's bouse at six hundred dollars, at the sane 
 time B offers to let it for five hundred dollars ; 
 the contract is for five hundred dollars), i 
 Story, Contr; 481. 
 
 Quod naturalix ratio inter omnes hominet am- 
 stituit, vocatur jus gentium. That which natural 
 reason has established among all men, is called 
 the law of nations. Dig. 1. 1. 9 ; Inst. 1. 2. 1 ; 
 1 Bla. Com. 43. 
 
 Quod necessarie intelligitur id non deest. What 
 Is necessarily understood is not wantlug. 1 
 Bulstr. 71. 
 
 Quod necessitas cogit, defendit. What neceeeity 
 forces, it justifies. Hale, P. C. ,54. 
 
 Quod non apparet non est, et non apparet j«di- 
 eialiter ante judicium. What appears not does 
 not exist, and nothing appears judicially before 
 judgment. 2 Inst. 479 ; Broom, Max. 164 ; Jenk, 
 Cent. 207 ; arg. 55 Penn. 57. 
 
 Quod non capit Christus, capit fiscus. What 
 the church does not take, the treasury takes. 
 Tear B. 19 Hen. VI. 1. 
 
 Quod non habet principium non habet frnm. 
 What has no beginning has no end. Co, Litt. 
 345 ; Broom, Max. 180. 
 
 Quod non legitur, non creditw. What is not 
 read is not believed. 4 Co. 304. 
 
 Quod non valet in principalia, in accessoria leu 
 consequentia non valebit ; et quod non valet in 
 magis propinquo, non valebit in magis remote. 
 What is not good as to things principal, will BOt 
 be good as to accessories or consequences ; and 
 what is not of force as regards things near tfIU 
 not be of force as to things remote. 8 Co, 78, 
 
 Quod nullius esse potest, id ut alicujus jletd 
 nulla obligatio valet ^fficere. No agreement em 
 avail to make that the property of any one which 
 cannot be acquired as property. Dig. 50. 17. 
 183. 
 
 Quod niUlius est, est domini regis. That which 
 belongs to nobody belongs to our lord the king. 
 Fleta, 1. 3; Broom, Max. 354; Bacon, Abr. 
 Prerogative (B) ; 2 Bla. Com. 260. 
 
 Quod mdlius est id ratione tiaturdli oceupwnfi 
 coneeditur. What belongs to no one, by natural 
 reason belongs to the first occupant. Inst. 2. 1. 
 12 ; 1 Bouv. Inst. n. 491 ; Broom, Max. 353. 
 
 Quod nuUum, est, nullum produdt effectwn. 
 That which Is null produces no effect. Trayner, 
 Max. 519. 
 
 Quod omnes tangit, ab omnibus debet supportari. 
 That which concerns all ought to be supported 
 by all. 3 How. St. Tr. 818, 1087. 
 
 Quod pendet, non est pro eo, quasi sit. What 
 is in suspense is considered as not existing dur- 
 ing such suspense. Dig. 50. 17. 169, 1. 
 
 Qtwd per me non possum, nee per aliium. Whw 
 I cannot do in person, I cannot do through the 
 agency of another. 4 Co. 24 5 ; 11 id. 87 a. 
 
 Quod per recordum probatwm, non debet eiKM- 
 gatum. What is proved by the record, ought 
 not to be denied. 
 
 Quod populus postremum jv^sit, id jus rattan 
 esto. What the people have last enacted, let that 
 be the established law. 1 Bla. Com. 89 1 U 
 Allen, 434. 
 
 . Quodprincipi plaeuit, legis habet rigoremi "j- 
 pote cum lege regia, qua de imperio ejus lata est, 
 
MAXIM 
 
 209 
 
 MAXIM 
 
 iK^aulus ei et in eum omne mum imperium et potes- 
 tatem eonferat. The will of the emperor has the 
 force of law ; for, by the royal law which has 
 been made concerning his authority, the people 
 has conferred upon him all its sovereignty and 
 power. Dig. 1. 4. 1 ; Inst. 1. 3. 1 ; Fleta, 1. 1, c. 
 17, § 7 ; Brae. 107 ; Selden, Diss, ad Flet. c. 3, 
 §§2-S. 
 
 Quod print est verius est ; et qiiod pHui est 
 tempore potius est jure. What is first is truest; 
 and what comes first in time is best in law. Co. 
 Litt. 347. 
 
 Quod pro minore licUism est, et pro majore lici- 
 tum est. What is lawful in the less Is lawful in 
 the greater. 8 Co. 43. 
 
 Quod pure debetur prcesenti die debeiur. That 
 which is due unconditionally is due now. Tray- 
 ner, Max. 519. i 
 
 Quod quis ex culpa sua damnum sentit, non in- 
 telligitur damnum sentire. He who eufiers a 
 damage by his own fault is not held to suffer 
 damage. Dig. 50. 17. 203. 
 
 Quod quis sdens indehitum dedit hae mente^ ut 
 postea repeteret, repetere non potest. What one 
 has paid Ijnowing it not to be due, with the in- 
 tention of recovering it baclc, be cannot recover 
 back. Dig. a. 6. 50. 
 
 Quod quisquis norit in hoc se exerceat. Let 
 every one employ himself in what he knows. 11 
 Co. 10. 
 
 Quod remedio destUuitur ipsa re valet si culpa 
 absit. What is without a remedy is by that very 
 fact valid if there be no fault. Bacon, Max. 
 Beg. 9 ; 3Bla. Com. 20 ; Broom, Max. 212. 
 
 Quod semel aut bis existit prceterewnt legislatores. 
 Legislators pass over what happens (only) once 
 or twice. Dig. 1. 3. 6 ; Broom, Max. 46. 
 
 Quod semel meum est ampUus meum esse non 
 potest. What is once mine cannot be mine more 
 completely. Co. Litt. 49 6 ; Shep. Touch. 212 ; 
 Broom, Max. 465 n. 
 
 Quod semel placuit in electione, amplius displi- 
 cere non potest. That which in making his elec- 
 tion a man has once been pleased to choose, he 
 cannot afterwards quarrel with. Co. Litt, 146 ; 
 Broom, Max. 295. 
 
 Quod sofo wuedifloatur solo eedit. Whatever is 
 built on the soil is an accessory of the soil. Inst. 
 3. 1. 29 ; 16 Mass. 449 ; 2 Bouv. Inst. n. 1571. 
 
 Quod sub certa forma concessum vel reservatum 
 estj non trahitur ad valorem vel eompensationem. 
 That which is granted or reserved under a cer- 
 tain form, is not to be drawn into valuation or 
 compensation. Bacon, Max. Beg. 4 ; Broom, 
 Max. 464. 
 
 Quod subintelligitur non deest. What is under- 
 stood is not wanting. 2 Ld. Raym. 832. 
 
 Quod tacite intelligitur deesse nonvidetur. What 
 is tacitly understood does not appear to be want- 
 ing. 4 Co. 22. 
 
 Quod vanum et inutile est, lex non requirU. The 
 law does not require what is vain and useless. 
 Co. Litt. 319. 
 
 Quod vera contra rationem juris receptvm est, 
 mm est producendum ad consequentias. But that 
 which has been admitted contrary to the reason 
 of the law, ought not to be drawn into prece- 
 dents. Dig. 1. 8. 14 ; Broom, Max. 158. 
 
 Quodcunque dliquis db tutelam corporis sui fece- 
 Tit jure id fecisse vitletur. Whatever one does in 
 defence of his person, that he is considered to 
 have done legally. 2 Inst. 590. 
 
 Quodque dissolvitur eodem modo quo ligatur. In 
 the same manner that a thing is bound, it is un- 
 bound. 6 EoUe, 39 : Broom, Max. 881 : 2 M. <fc 
 G.729. ' ' 
 
 Quamodo quid ecnstituitur eodem modo distolvi- 
 twr. In whatever mode a thing is constituted, in 
 the same manner is it dissolved. Jenk. Cent. 74. 
 Vol. II.— 14 
 
 Quorum praitexta, nee auget nee minuit senten- 
 tiam, sed tantum conflrmat prcemissa. " Quorum 
 pratexta" neither increases nor diminishes the 
 meaning, but only confirms that which went be- 
 fore. Plowd. 52. 
 
 Quotiens duMa interpretatio Ubertatis est, secun- 
 dum libertatem respondendum erit. Whenever 
 there is a doubt between liberty and slavery, the 
 decision must be in favor of liberty. Dig. 50. 17. 
 30. 
 
 Quotiens idem sermo duas sentential exprimtt, 
 ea potissimum aecipiatur, quce rei gerendae aptior 
 est. Whenever the same words express two 
 meanings, that is to be taken which is the better 
 fitted for carrying out the proposed end. Dig. 
 50. 17. 67. 
 
 Quoties in stipulationibus ambigua oratio est, 
 commodissimum est id accipi quo res de quo agitur 
 in, tuto sit. Whenever in stipulations the expres- 
 sion is ambiguous, it is most proper to give it 
 that interpretation by which the subject-matter 
 may be in safety. Dig. 41. 1. 80 ; .50. 16. 219. 
 
 Quoties in verbis nulla est ambiguitas ibi mdla 
 expositio contra verba flenda est. When there is 
 no ambiguity in the words, then no exposition 
 contrary to the words is to be made. Co. Litt. 
 147 ; Broom, Max. 619 ; 8 Mass. ^1. 
 
 Qwum de lucro duorum quaratur, meliorest con- 
 ditio possidentis. When the gain of one of two 
 is in question, the condition of the possessor is 
 the better. Dig. 50. 17. 126. 2. 
 
 Quum in testamento ambiguc aut etiam perperam 
 scriptum est, benigne interpretari et secundum id 
 quod credibile et cogitatum, credendum est. When 
 in a will an ambiguous or even an erroneous ex- 
 pression occurs, it should be construed liberally 
 and in accordance with what is thought the 
 probable meaning of the testator. Dig. 34. 5. 
 34; Broom, Max. 437. See Brisson, Perperam. 
 
 Quum principalis causa non consistit ne ea 
 quidem quce sequuntur locum habent. When the 
 principal cause does not hold its ground, neither 
 do the accessories find place. Dig. .50. 17. 139. 1 ; 
 Broom, Max. 496 ; 1 Pothier, Obi. 413. 
 
 BatihabUio mandato cequiparatur. Ratification 
 is equal to a command. Dig. 46. 3. 12. 4 ; Broom, 
 Max. 867 ; 20 Pick. 95. 
 
 Satio est formalis causa eonsuetudinit. Reason 
 is the source and mould of custom. 
 
 Hatio est legis aiiima, mutata legis ratione mu- 
 tatur et lex. Reason is the soul of the law ; the 
 reason of the law being changed, the law is also 
 changed. 7 Co. 7. 
 
 Batio est radius divini luminis. Reason is a 
 ray of divine light. Co. Litt. 332. 
 
 Batio et auctoritas duo clarixsima mundi 
 lumina. Reason and authority are the two 
 brightest lights in the world. 4 Inst. 330. 
 
 Batio in jure cequitas integra. Reason in law 
 is perfect equity. 
 
 Batio legis est anima legis. The reason of the 
 law is tlie soul of the law. Jenk. Cent. 45. 
 
 Batio non elauditur loco. Reason is not con- 
 fined to any place. 
 
 Batio potest aUegari deficiente lege, sed vera et 
 legaUs et nonapparens. Reason may be alleged 
 when the law is defective, but it must be true 
 and legal reason, and not merely apparent. Co. 
 Litt. 191. 
 
 Be, verbis, scripto, consensu, traditione,junetura 
 vestes sumere pacta solent. Compacts usually 
 take their clothing from the thing itself, from 
 words, from writing, from consent, from deliv- 
 ery. Plowd. 161. 
 
 Beeeditur a placttis juris, potius quam injuriaet 
 delicta maneant impunita. Positive rules of law 
 will be receded from rather than crimes and 
 wrongs should remain unpunished. Bacon, Max. 
 
MAXIM 
 
 210 
 
 MAXIM 
 
 Keg. 12; Broom, Max. 10. (This applies only 
 to such maxims as are "called plaaita juris; 
 these will be dispensed with rather than crimes 
 should go unpunished, quia talus populi su- 
 prema lex, because the public safety is the 
 supreme law.) 
 
 Recorda mint vestigia vetustaiis et veritatis, Ke- 
 cords are vestiges of antiquity and truth. 3 
 BoUe, S96. 
 
 Becurrenditm est ad extraordinarium guando 
 non valet ordinarium. We must have recourse 
 to what is extraordinary when what Is ordinary 
 fails. 
 
 Beddenda singula singulis. Let each be put in 
 its proper place. 13 Pick. 291 ; 18id. 338. 
 
 Megula est, juris quidem ignorantiam euique 
 nocere, facti vero ignorantiam non noeere. The 
 rule Is, that ignorance of the law does not ex- 
 cuse, but that ignorance of a fact may excuse a 
 party from the legal consequences of his con- 
 duct. Dig. 22. 6. 9 ; Broom, Max. 253. See 
 Irvine, Civ. Law, 74. 
 
 Segulapro lege, si deficit lex. In default of the 
 law, the maxim rules. 
 
 Begulariter non valet pactum de-re meanonalie- 
 nanda. Kegularly a contract not to alienate my 
 property is not binding. Co. Litt. 333. 
 
 Bei turpis nullum mandatum est. A mandate of 
 an illegal thing is void. Dig. 17. 1. 6. 8. 
 
 Beipublicce interest voluntates defunciorum effee- 
 tum sortiri. It concerns the state that the wills 
 of the dead should have their effect. 
 
 Belatio est jictio juris et intenta ad unum. Be- 
 lation is a Sction of law, and intended for one 
 thing. 3 Co. 28. 
 
 Belaiio semper fiat ut valeat dispositio. Eefer- 
 ence should always be had in such a manner, 
 that a disposition in a will may avail. 6 Co. 76. 
 
 Belation never defeats collateral acts. 18 Vin. 
 Abr. 292. 
 
 Belation sTiall never make good a void grant or 
 devise of the party. 18 Vin. Abr. 393. 
 
 Belative words refer to the next antecedent, unless 
 the sense be thereby impaired. Noy, Max. 4; 
 Wing. Max. 19 ; Broom, Max. 606 ; Jenk. Cent. 
 180. 
 
 Belativorum, eognito uno, cognoscifur et alterum. 
 Of things relating to each other, one being 
 known, the other is known. Cro. Jac. 539. 
 
 Bemainder can depend upon no estate but whM 
 beginneth at the same time the remainder doth. 
 
 Bemaindermust vest at the same instant that the 
 particular estate determines. 
 
 Bemainder to a person not of a capacity to take 
 at the time of appointing it, is void. Plowd. 27. 
 
 Bemediesfor rights are ever favordbly extended. 
 18 Vin. Abr. 521. 
 
 Bem£dies ought to be reciprocal. 
 
 Bemissius imperanti meli^ls paretur. A man 
 commanding not too strictly is better obeyed. 3 
 Inst. 233. 
 
 Bemoto impedimento, emergit actio. The im- 
 pediment being removed, the action arises. 5 Co. 
 76 ; Wing. Max. 30. 
 
 Bent must be reserved to him from whom the 
 xtate of the land moveth. Co. Litt. 143. 
 
 BepeUitur a Sacramento infamis. An infamous 
 person is repelled or prevented from takine an 
 oath. Co. Litt. 158 ; Bract. 185. 
 
 BepeUitur exceptione cedendarum actionum. He 
 is defeated by the plea that the actions have been 
 assigned. 1 Johns. Ch. 409, 414. 
 
 Beprobata pecunta liberal solventem. Money 
 refused liberates the debtor. 9 Co. 79. But 
 this must be understood with a qualification 
 See Tbndbk. 
 
 Beputatio est vulgaris opinio ubi non est Veritas. 
 Reputation is a common opinion where there is 
 
 no certain knowledge. 4 Co. 107. But see 
 Chakaoteb. 
 
 Berum ordo confunditur, Hunieuique jurisdietio 
 non servatur. The order of things is confounded 
 if every one preserves not his jurisdiction. 1 
 Inst. Proem. 
 
 Berum progressa ostendunt m!dta, qua in initUi 
 prcecaveri teu pravideri non possunt. In the 
 course of events many mischiefs arise which at 
 the beginning could not be guarded against or 
 foreseen. 6 Co. 40. 
 
 Berum suarum quUibet est moderator et arbiter. 
 Every one Is the manager and disposer of his own 
 matters. Co. Litt. 233. 
 
 Bes aecendent lumina rebus. One thing throws 
 light upon others. 4 Johns. Ch. 149. 
 
 Bes accessoria sequitur rem principalem. An ac- 
 cessory follows its principal. Broom, Max. '491, 
 (For a definition of res accessoria, see Mack. Civ! 
 Law, 15.5.) . 
 
 Bes denominatur a principaliori parte. A thing 
 is named from its principal part. 5 Co, 47. 
 
 Bes est misera ubi jus est vagwm et incei'tum. It 
 is a miserable state of things where the law is 
 vague and uncertain. 2 Salk. 512. 
 
 Bes generalem habet signijleationem, qiiia tarn 
 corporea, qicam incorporea, cujuscunque sunt gen. 
 eris, naiurce sive speciei, compreJiendit. The woid 
 things has a general signification, because it com- 
 prebends, as well corporeal as incorporeal ob- 
 jects, of whatever sort, nature or species. 8 
 Inst. 483 ; 1 Bouv. Inst. n. 415. 
 
 Bes inter alios acta alteri nocere non dM. 
 Things done between strangers ought not to in- 
 jure those who are not parties to them. Co. 
 Litt. 132 ; Broom, Max. 954, 967 ; 3 Curt. C. C. 
 403 ; 11 Q. B. 1028 ; 57 N. H. 369. 
 
 Bes inter alios judicatce nullum aliis prajuiitiim 
 fadumt. Matters adjudged in a cause do not 
 prejudice those who were not parties to it. Die. 
 44. 2. 1. , ' 
 
 Bes judicata faeit ex albo nigrum, ex nigro 
 album, ex curvo rectum, ex recto curvum. A thing 
 adjudged makes white, black ; black, white; the 
 crooked, straight; the straight, crooked. 1 
 Bouv. Inst. n. 840. 
 
 Bes judicata pro veritate acdpUur. A thing 
 adjudged must be taken for truth. Co, Litt, 
 103; Broom, Max. 828, 333,945; Dig. 60. 17, 
 207 ; 2 Kent, 120 ; 13 M. & W. 679 ; 59 Penn. 
 68. See Res Judicata. 
 
 Bes per pecuniam cestimatur, et non pecvnia per 
 res. The value of a thing is estimated by its 
 worth in money, and the value of money is not 
 estimated by reference to the thing. 9 Co, 76; 
 1 Bouv. Inst. n. 922. 
 
 ^es perit domino suo. The destruction of the 
 thing "is the loss of its owner, 2 Bouv, Inst, nn, 
 1456, 1466; Story, Bailm. 426; 3 Kent, 591; 
 Broom, Max. 238 ; 12 Allen, 381 ; 14 id. 269. 
 
 Bes propria est quce communis non est. A thing 
 is private which is not common. 8 Paige, 261, 
 270. 
 
 Bes quce intra prasidia perductce nondum sunt, 
 quanquam ab hostibus occupatce, idea postlimim 
 non egent, quia dominum nondum matnrunt a 
 gentiMm jure. Things which have not yet been 
 introduced within the enemy's lines, although 
 held by the enemy, do not need the fiction of 
 postliminy on this account, because their owner- 
 ship by the law of nations has not yet changed. 
 GrotiuB, de Jur. Bell. 1. 8, o. 9, § 16 ; 1. 3, c. 6, § 3. 
 
 Bes sacra non recipit eestimationem. A eacred 
 thing does not admit of valuation. Dig. 1. 8, 9,.5. 
 
 Bes sua nemini servit. No one can have a servi- 
 tude over his own property. Trayner, Max. 541. 
 
 Bes transit cum suo onere. The thing passes 
 with its burden. Pleta, 1. 8, c. 10, § 3. 
 
 Beservatio non cfebet esse de profieuis ips<« {"" 
 
MAXIM 
 
 2U 
 
 MAXIM 
 
 «o concedmitur, sed de reddiia novo extra proflcua. 
 A reservation ought not to be of the annual in- 
 crease itself, because It is granted, but of new 
 rentapart from theannual Increase. Co. Litt. 143. 
 
 Besignatio est juris proprii spontanea refutatio. 
 Besignation is the spontaneous relinquishment 
 of one's own right. Godb. 284. 
 
 Mesoluto jure eoneedentie resolvUur jus conces- 
 sum. The right of the grantor being extin- 
 guished, the right granted isextinguished. Mack. 
 Civ. Law, 179 ; Broom, Max. 467. 
 
 Jtespiciendum est judicanti, nequid aut durius 
 aut remissius construatur quam causa d^osdt ; 
 nee enim aut severitatis aut dementia gloria: affec- 
 tanda est. It is a matter of import to one adju- 
 dicating that nothing should be either more se- 
 verely or more leniently construed than the cause 
 Itself demands ; for the glory neither of severity 
 nor clemency should be affected. 3 Inst. 220. 
 
 Respondeat raptor, qui ignorare non potuit quod 
 ^ pupiltum alienum abduxit. Let the ravisber an- 
 swer, for he could not be ignorant that he has 
 taken away another's ward. Hob. 99. 
 
 Respondeat superior. Let the principal answer. 
 Broom, Max. 7, 62, 268, 369 u. 843 et sea. ; 4 
 Inst. 114 ; 2 Bouv. Inst. n. 1337 ; 4 id. n. 3586 ; 
 3 Lev. 352; 1 Salk. 408; 1 Bingh. N. c. 418 ; 4 
 Maule & S. 259 ; 10 Exch. 656 ; 2 E. & B. 216 ; 
 7 id. iS&; 1 B. & P. 404 ; 1 C. B. 678 ; 6 M. & 
 W. 302; 10 Exch. 656 ; 1 Allen, 103, 174; 12 id. 
 470 ; 98 Mass. 221, 571. 
 
 Bespondera son soveraigne. His superior or 
 master shall answer. Articuli sup. Chart, c. 18. 
 
 Besponsio unius non omnino auditur. The 
 answer of one witness shall not be heard at all. 
 1 Greenl. Ev. § 260. (This is a maxim of the 
 civil law, where everything must be proved by 
 two witnesses.) 
 
 Beus exeipiendoflt actor. The defendant by a 
 plea becomes plaintiff. Bannier, Tr, des preuves, 
 §§ 152,.320; Best, Evid. 294, § 252. 
 
 Beus Itests majestatis pwnitur, utpereat unus ne 
 pereant omnes. A traitor is puuished that one 
 may die lest all perish. 4 Co. 124. 
 
 Bex non debet esse sub Jiomine sed sub Deo et 
 lege. The king should not be under the authority 
 of man, but of God and the law. Broom, Max. 
 47, 117 ; Bract. 5. 
 
 Bex non potest fallere necfalU. The king can- 
 not deceive or be deceived. Grounds & Eud. of 
 Law, 438. 
 
 Bex non potest peceare. The king can do no 
 wrong. 2 EoUe, 304 ; Jenk. Cent. 9, 308 ; 
 Broom, Max. 52 ; 1 Sharsw. Bla. Com. 246. 
 
 BexnunqiMm moritur. The king never dies. 
 Broom, Max. 50 ; Branch, Max. 5th ed. 197 ; 1 
 Bla. Com. 249. 
 
 Bights never die, 
 
 Biparum usus pttblicus est jure gentium, sieut 
 ipsius fluminis. The use of river-banks is by the 
 law of nations public, like that of the stream It- 
 self. Dig. 1. 8. 5. pr.; Eleta, 1. 3, c. 1, § 5 ; Loc- 
 ' cenius de Jur. Mar. 1. 1, c. 6, § 12. 
 
 Boy n^est lie per ascun statute, si U ne soit ex- 
 pressement nosn^. The king is not bound by any 
 statute, if he is not expressly named. Jenk. 
 Cent. 307 ; Broom, Max. 72. 
 
 Saeramentum habet in «e tres comites, veritatem, 
 justitiam et judicium ! Veritas habenda estinjura- 
 to ; jttstitia et justicium in judiee. An oath has 
 in it three component parts — truth, justice, and 
 judgment : truth in the party swearing, justice 
 and judgment in the judge administering the 
 oath. 3 Inst. 160. 
 
 Saeramentum si fatuum fuerit, licet falsum 
 tamen non committit perjurium. A foolish oath, 
 though false, makes not perjury. 2 Inst. 167. 
 
 Saerilegus omnium prcedorum cupiditatem et 
 
 seelerem superat. A sacrilegious person tran- 
 scends the cupidity and wickedness of all other 
 robbers. 4 Co. 106. 
 
 Scepe constitutum est, res inter alios judicatas 
 aliis non prajudieare. It has often been settled 
 that matters adjudged between others ought not 
 to prejudice those who were not parties. Dig. 
 42. 1. 63. 
 
 Scepe viatorem nova non vetus orbitafallit. Of- 
 ten it is the new track, not the old one, which de- 
 ceives the traveller. 4 Inst. 34. 
 
 Scepenmnero ubi proprietas verborum attenditur, 
 sensus veritatis amittitur. Frequently where the 
 propriety of words is attended to, the meaning 
 of truth is lost. 7 Co. 27. 
 
 Salui populi est suprema lex. The safety of the 
 people is the supreme law. Bacon, Max. Beg. 
 12 ; Broom, Max. 1, 10, 287, n. ; 13 Co. 139 ; 8 
 Mete. 465 ; 12 id. 82 ; 116 Mass. 260. 
 
 Salus reipublicoE suprema lex. The safety of the 
 state is the supreme law. 4 Cush. 71 ; 1 Gray, 
 386 : Broom, Max. 366. 
 
 Salus ubi multi consiliarii. In many counsel- 
 lors there is safety. 4 Inst. 1. 
 
 Sanguinis eonjunctio benevolentia devineU 
 homines et caritate. A tie of blood overcomes 
 men through benevolence and family affection. 
 5 Johns. Ch. 1, 13. 
 
 Sapiens incipit a fine, et quod primum est in in- 
 tentione; ultimum est in executione. A wise man 
 begins with the last, and what is first in inten- 
 tion is last in execution. 10 Co. 25. 
 
 Sapiens omnia agit cum consUio. A wise man 
 does every thing advisedly. - 4 Inst. 4. 
 
 Sapientia legis nummario pretio non est tssti- 
 manda. The wisdom of the law cannot be valued 
 by money. Jenk. Cent. 168. 
 
 Sapientis judids est cogitare tantumsibi esse per-' 
 missum, quantum commissum et creditum. It is 
 the duty of a wise judge to think so much only 
 permitted to him as is committed and intrusted 
 to him. 4 Inst. 163. 
 
 Satisfaction should be made to that fund which 
 has sustained the loss. 4 Bouv. Inst. n. 3731. 
 
 Satius est petere f antes quam sectari rivulos. It 
 is better to seek the fountain than to follow rivu- 
 lets. 10 Co. 118. 
 
 Scientia sciolorum est mixta ignorantia. The 
 knowledge of smatterers is mixed ignorance. 8 
 Co. 159. 
 
 Sdentia utrinque par pares eontrahentes facU. 
 Equal knowledge on both sides makes the con- 
 tracting parties equal. 3 Burr. 1910 ; L. B. 3 Q. 
 B. 699 ; Broom, Max. 772, 793, n. 
 
 Seienti et volenti non fit injuria. A wrong is 
 not done to one who knows and wills it. Bract. 
 20. 
 
 Scire debes cum quo contrahis. You ought to 
 know with whom you deal. 11 M. & W. 405, 
 632 ; 13 id. 171. 
 
 Scire et scire debere cequiparantur in jure. To 
 know a thing, and to be bound to know it, are 
 regarded in law as equivalent. Trayner, Max. 
 551. 
 
 Scire leges, non hoc est verba earum tenere, sed 
 vim et potestatem. To know the laws, is not to 
 observe their mere words, but their force and 
 power. Dig. 1. 3. 17. 
 
 Scire proprie est rem ratione et per causam tog- 
 noseere. To know properly is to know a thing 
 by its cause and in its reason. Co. Litt. 183. 
 
 Scribere est agere. To write Is to act. 3 Bolle, 
 89 ; 4 Bla. Com. 80 ; Broom, Max. 312, 967. 
 
 Striptee obligationes scriptis toUuntur, et nudi 
 consensus obligatio, contrario consensu dissolvitur. 
 Written obligations are dissolved by writing, and 
 obligations of naked agreement by naked agree- 
 ment to the contrary. 
 
 Secta est pugna dvilis, sieut actores armantur 
 
MAXIM 
 
 212 
 
 MAXIM 
 
 aetionibus, et quati acdngtmtwr gladiis, ita rei 
 (e contra) muniimtur exceptionilms, et defendun- 
 tur quasi clypeis. A suit is a civil battle, as the 
 plaintiffs are armed with actions and as it were 
 girt with swords, so on the other hand the de- 
 fendants are fortified with pleas, and defended 
 as it were by helmets. Hob. 20 ; Bract. S39 6. 
 
 Secta qiue scHpto nititur a teripto variari non 
 debet. A suit which relies upon a writing ought 
 not to vary from the writing. Jenk. Cent. 65. 
 
 Secundum naturam eat, commoda cujusque rei 
 eum sequi, quern sequentur ineommoda. It is 
 natural that he who bears the charge of a thing 
 should receive the profits. Dig. 50. 17. 10. 
 
 iSeeurius expediuntur negotia commisna plurilms, 
 et plus vident oculi quam oeulus. Business in- 
 trusted to several speeds best, and several eyes 
 see more than one. 4 Co. 46. 
 
 Seisinafacit stipitem. Seisin makes the stock. 
 2 Bla. Com. 209; Broom, Max. 525, 528; 1 
 Steph. Com. 367 ; 4 Kent, 388, 389 ; 13 Ga. 238. 
 
 JHemel civis semper civis. Once a citizen always 
 a citizen. Trayner, Max. 555. 
 
 Semel malus semper prceswmitur esse malus in 
 eodem genere. Whoever is once tad is presumed 
 to he so always in the same degree. Cro. Car. 
 317. 
 
 Semper in dubiis benigniora prceferunda sunt. 
 In dubious cases the more liberal constructions 
 are always to be preferred. Dig. 50. 17. 56. 
 
 Semper in dubiis id agendum est, ut quam. tutis- 
 timo loco res sit bona fide contracta, nisi qwwm 
 aperte contra leges scriptnm. est. Always in 
 doubtful cases that is to be done by which a 
 bona fide contract may be in the greatest safety, 
 except when its provisions are clearly contrary 
 to law. Dig. 34. 5. 21. 
 
 Semper in obscuris quod minimum est sequimur 
 (sequere). In obscure cases we always follow 
 that which is least obscure. Dig. 50, 17. 9 ; 
 Broom, Max. 687, n. ; 3 C. B. 963. 
 
 Semper in stipulationibus et in ceteris contracti- 
 1ms id sequimur quod actum est. In stipulations 
 and other contracts we always follow that which 
 was agreed. Dig. 50. 17. 34. 
 
 Semper ita flat relatio ut valeat dispositio. Let 
 the reference always be so made that the dispo- 
 sition may avail. 6 Co. 76. 
 
 Semper necessitas probandi incumbit ei qui agit. 
 The claimant is always bound to prove (the 
 burden of proof lies oh him) . 
 
 Semper prcesumitur pro legitimatione pueromm, 
 et fliiatio non potest probari. The presumption 
 is always in favor of legitimacy, for filiation 
 cannot be proved. Co. Litt^ 126. See 1 Bouv. 
 Inst. n. 303 ; 5 Co. 98 6. 
 
 Semper prcesumitur pro negante. The presump- 
 tion is always in favor of the one who denies. 
 See 10 CI. & F. 534; 3 E. & B. 723. 
 
 Semper prcesumitur pro sententia. Presump- 
 tion is always in favor of the sentence. 3 Bulstr. 
 
 Semper qui non prohibet pro se intervenire, 
 mandare creditur. He who does not prohibit 
 the intervention of another in his behalf is sup- 
 posed to authorize it. S Kent, 616 ; Dig. 14. 6. 
 16 ; 43. 3. 12. 4. 
 
 Semper sexiis maseidinus etiam fcemininum eon- 
 tinet. • The male sex always includes the female. 
 Dig. 33, 62 ; 2 Brev. 9. 
 
 Semper speeialia generalitms insunt. Special 
 clauses are always comprised in general ones 
 Dig. 50. 17. 147. 
 
 Senatores sunt partes corporis regis. Senators 
 are part of the body of the king. Staunf. 72 
 £ ; 4 Inst. 53, in marg. 
 
 Sensus verborum est anima legis. The meaning 
 of words is the spirit of the law. 5 Co. 8. 
 
 Sensus verborum est duplex, mitis et (uper, et 
 
 verba semper aceipienda sunt in mitiore senm 
 The meaning of words is twofold, mild and 
 harsh ; and words are to be received in their 
 milder sense. 4 Co. 13. 
 
 Sensus verborum ex causa dicendiaccipiendtaett 
 et sermones semper aeeipiendi sunt secundum mb- 
 jectam materiam. The sense of words is to be 
 taken from the occasion of speaking them, and 
 discourses are always to be interpreted according 
 to the subject-matter. 4 Co. 14. 
 
 Sententia a nonjudiee lata nemini debet nocere. 
 A sentence pronounced by one who is not ajndge 
 should not harm any one. Fleta, 1. 6, c. 6, § 7. 
 
 Sententia contra matrimonium nunquam transit 
 in rem judicatam. A sentence against marriage 
 never passes into a judgment (conclusive upon 
 the parties). 7 Co. 43. 
 
 Sententia fadt jus, et legis interpretatio legis vim 
 obtinet. The sentence makes the law, and the 
 Interpretation has the force of law. 
 
 Sententia fadt jus, et res judicata pro veritati 
 accipitur. Judgment creates the right, and what 
 is adjudicated is taken for truth. Ellesm. 
 Fostn. 55. 
 
 Sententia interloctetoria revocari potest, defflni- 
 tiva non potest. An interlocutory sentience or 
 order may be revoked, but not a final. Bacon, 
 Max. Eeg. 20. 
 
 Sententia nonfertur de rebus non liquidis. Sen- 
 tence is not given upon a thing which is not 
 clear. 
 
 Sequi debet potentia justitiam, non pr<ecedere. 
 Power should follow justice, not precede it. 2 
 Inst. 454. 
 
 Sermo index animi. Speech is an index of the 
 mind. 5 Co. 118. 
 
 Sermo relata ad personam, intelligi debet de con- 
 ditione personce. A speech relating to the person 
 is to be understood as relating to his condition. 
 4 Co. 16. 
 
 Servanda est eonsuetudo lod ubi causa agitm. 
 The custom of the place where the action is 
 brought Is to be observed. 3 Johns. Ch. 190, 
 219. 
 
 Servitia personalia sequunlur personam. Per- 
 sonal services follow the person. 2 Inst. 374 ; 
 Fleta, 1. 3, c. 11, § 1. 
 
 Si a jure discedas, vagus eris et erunt omnia om- 
 nibus incerta. If you depart from the law, yon 
 will wander without a guide, and every thingwill 
 be in a state of uncertainty to every one. Co. 
 Litt. 227. 
 
 Si alicujus rei societas lit et finis negotio impo- 
 situs est, finitur societas. If there is a partner- 
 ship in any matter, and the business is ended, the 
 partnership ceases. 16 Johns. 438, 489. 
 
 Si aliquid ex solemnibus d^dat, cum capatas 
 poscit xubveniendum est. If any thing bewanting 
 from required forms, when equity requires itwiU 
 be aided. 1 Kent, 157. 
 
 Si assuetis mederi possisnova non sunt tenianda. 
 If you can be relieved by accustomed remedies, 
 new ones should not be tried. 10 Co. 142. 
 
 Si duo in testamento pugftantiareperientur,tiUi- 
 mum est ratum. If two conflicWng provisionB are 
 found in a will, the last is observed. Lofit, 351. 
 
 Si judieas, cognosce. If you judge, under- 
 stand. 
 
 Si meliores siunt quos ducit amor, plures «'"'' 
 g«o» corrigit timor. If those are better who 
 are led by love, those are the greater number 
 corrected by fear. Co. Litt. 392. 
 
 Si non appareat quid actum est, erit conseqveM 
 ut id sequamur quod in regione in qua action m 
 frequentatur. If it does not appear what ms 
 agreed upon, the consequence will be that we 
 must follow that which is the usage of the place 
 where the agreement was made. Dig; 5". !'■ 
 34. 
 
MAXIM 
 
 218 
 
 MAXIM 
 
 Si nulla »U conjaetura quae ducat alio, verba in- 
 teUigenda sunt ex proprietate, non grammatiea led 
 populari ex um. If there be no Inference which 
 leads to a different result, words are to be under- 
 stood according to their proper meaning, not in 
 a grammatical, but in a popular and ordinary, 
 sense. 2 Kent, 555. 
 
 Si plures conditioneii ascrlptce fuerunt donationi 
 cor^unctinif omnibus est parendum; et adveritatem 
 copulative requiritur quod utraque pars sit vera, ei 
 divisim, euilibet eel alteri eorum satis est obtempe- 
 rarei et in disjunctivis, sufflcU alteram partem esse 
 veram. If several conditions are conjunctively 
 written in a gift, the whole of them must be 
 complied with ; and with respect to their truth, 
 it is necessary that every part be true, taken 
 jointly ; if the conditions are separate, it is suffi- 
 cient to comply with either one or otherof them ; 
 and being disjunctive, that one or the other be 
 true. Co. Litt. 235. 
 
 8i plures sint fldejussores, quotquot erunt nu- 
 mero, singuli in solidwm tenentur. If there are 
 more sureties than one, how many soever they 
 shall be, they shall each be held for the whole. 
 Inst. 3. 20. 4. 
 
 Si quid universitati debetur singulis non debetur, 
 nee quod debet universitas singuli debent. If any 
 thing is due to a corporation, it is not due to the 
 individual members of it, nor do the members 
 individually owe what the corporation owes. 
 Dig. 3. 4. 7 ; 1 Bla. Com. 4S4. 
 
 Si quidem in nomine, cognomine, prcenomine, 
 agnomine legatarii erraverit; cum de persona con- 
 stat, nihilominus valet legatum. If the testator 
 has erred in the name, cognomen, prsenomen, or 
 title of the legatee, whenever the person is ren- 
 dered certain, the legacy is nevertheless valid. 
 Inst. 2. 20. 29 ; Broom, Max. 645 ; 2 Domat, b. 
 2j 1. 1, s. 6, §§ 10, 19. 
 
 Si quis custos fravdeim pupUlo fecerit, a tutela 
 removendus est. If a guardian behave fraudu- 
 lently to his ward, he shall be removed from the 
 guardianship. Jenk. Cent. 39. 
 
 Si quis prcegnantem uxorem reliquit, non videtur 
 sine liberis decessisse. If a man dies, leaving his 
 wife pregnant, he shall not be considered as hav- 
 ing died childless. 
 
 Si quis unum pereusserit, cum alium percutere 
 veUet, in felonia tenetur. If a man kill one, 
 meaning to kill another, he is held guilty of felony. 
 3 Inst. 51. 
 
 Si mggestio non sit vera, literce patentes vacuce 
 sunt. If the suggestion of a patent is false, the 
 patent itself is void. 10 Co. 113. 
 
 Sic enim debere quem meliorem, agrum suum fa- 
 eere, ne vicini deteriorem facial. Every one ought 
 so to improve his land as not to injure his neigh- 
 bor's. 3 Kent, 441. 
 
 Sic interpretandum est ut verba aeeipiantur cum 
 effeetu. Such an interpretation is to be made 
 that the words may have an effect. 3 Inst. 80. 
 
 Sic utere tuo ut alienum non Itedas. So use 
 your own as not to injure another's property. 1 
 Bla. Com. 306; Broom, Max. 368, 365 et seq., 
 862 ; 2 Bouv. Inst. n. 2379 ; 9 Co. 59 ; 5 Exch. 
 797 ; 12 Q. B. 739 ; 4 A. & E. 384 ; El., Bl. & El. 
 643 ; 15 Johns. 218 ; 17 id. 99 ; 17 Mass. 334 ; 106 
 id. 199 ; 107 id. 576 ; 13 id. 58 ; 86 Penn. 401 : 88 
 id. 189 ; 4 M'Cord, 473. 
 
 Sicut natura nil facit per saltum, ita nee lex. As 
 nature does nothing by a bound or leap, so 
 neither does the law. Co. Litt. 238. 
 
 Sigillum est cera impressa, quia cera sine int- 
 pressione non est sigillum. A seal is a piece of 
 wax impressed, because wax without an impres- 
 sion is not a seal. 3 Inst. 169. But see Seal. 
 
 Silence shows consent. 6 Barb. 28, 35. 
 
 Silent leges inter arma. Laws are silent amidst 
 arms. 4 Inst. 70„ 
 
 SimHHtii^ legdlis est casuum diversorum inter 
 se collatorum, similis ratio ; quod in u/no sim.ilium 
 valet, valebit in altera. Dissimilium, dissimilis est 
 ratio. Legal similarity is a similar reason which 
 governs various cases when compared with each 
 other, for what avails In one similar case will avail 
 in the other. Of things dissimilar, the reason is 
 dissimilar. Co. Litt. 191. 
 
 Simplex commendatio non obligat. A simple re- 
 commendation does not bind. Dig. 4. 3. 37 ; 2 
 Kent, 485 ; Broom, Max. 781 ; 4 Taunt. 488 ; 16 
 Q. B. 283, 283 ; Cro. Jac. 4 : 2 Allen, 214 ; 5 
 Johns. 354 ; 4 Barb. 95. 
 
 Simplex et para donatio did poterit, ubi nulla est 
 adjecta conditio nee modus. A gift is said to be 
 pure and simple when no condition or qualifica- 
 tion is annexed. Bract. 1. 
 
 Simplicitas est legibus amiea, et nimia subtilitas 
 in jure reprobatur. Simplicity is favorable to the 
 law, and too much subtlety is blameworthy in 
 law. 4 Co. 8. 
 
 Sine possessione usucapio proeedere non potest. 
 There can be no prescription without possession. 
 
 Slnquli in solikum tenentur. Each is bound 
 for the whole. 6 Johns. Ch. 242, 253. 
 
 Sive tola res evincatur, sUie pars, habet regressum 
 emptor in venditorem. The purchaser who has 
 been evicted in whole or in part has an action 
 against the vendor. Dig. 31. 3. 1 ; Broom, Max. 
 768. 
 
 Socii mei socius, msus socius non est. The 
 partner of my partner is not my partner. Dig. 
 50. 17. 47. 1 ; Lindl. Part. 4th ed. 54: 13 Gray, 
 472. 
 
 Sola ac per se senectus donationem testamentum 
 aut transaetionem non vitiat. Old age does not 
 alone and of itself vitiate a will or gift. 5 Johns. 
 Ch. 148, 158. 
 
 Solemnitafes juris sunt observandce. The so- 
 lemnities of law are to be observed. Jenk. 
 Cent. 13. 
 
 Solo cedit quod solo implantatur. What is 
 planted in the soil belongs to the soil. Inst. 3. 
 1. 32 ; 2 Bouv. Inst. n. 1572. 
 
 Solo cedit quod solo incediflcatur. Whatever is 
 built on the soil belongs to the soil. Inst. 3. 1. 
 29. See 1 Mack. Civ. Law, § 268 ; 3 Bouv. Inst, 
 n. 1571. 
 
 Solus Dent lueredem facit. God alone makes 
 the heir. Co. Litt. 5. 
 
 Solutio pretii emptionis loco Tiabetur. The 
 payment of the price stands in the place of a 
 sale. Jenk. Cent. 56 ; 1 Pick. 70. 
 
 Solvendo esse nemo intelligitur nisi qui solidum 
 potest solvere. No one is considered to be solvent 
 unless he can pay all that he owes. Dig. 50. 16. 
 114. 
 
 Solvitur adhiic tocietas etiam morte socii. A 
 partnership is moreover dissolved by the death 
 of a partner. Inst. 3. 36. 5 ; Dig. 17. 2. 
 
 Solvitur eo ligamine quo ligatur. In the same 
 manner that a thing is bound it is unloosed. 4 
 Johns. Ch. 583. 
 
 Spes est vigilantis somnium. Hope is the dream 
 of the vigilant. 4 Inst. 303. 
 
 Spes impunitatis continuum, affectum iribuit de- 
 Unquendi. The hope of impunity holds out a 
 continual temptation to crime. 3 Inst. 2.S6. 
 
 Spoliatus debet ante omnia restUui. . He who 
 has been despoiled ought to be restored before 
 anything else. 3 Inst. 714 ; 4 Sharsw. Bla. Com. 
 353. 
 
 Spondet peritiam artis. He promises to use the 
 skill of his art. Pothier, Louage, n. 425 ; Jones, 
 Bailm. 22, 53, 63, 97, 120 ; Domat, liv. 1, t. 4, s. 
 8, n. 1 : 1 Story, Bailm. § 431 ; 1 Bell, Com. 5th 
 ed. 459 ; 1 Bouv. Inst. n. 1004. 
 
 Sponte virum fugiens mulier et adultera facta, 
 dotl ma careat, nisi sponte retracta. A woman 
 
MAXIM 
 
 214 
 
 MAXIM 
 
 leaving her husband of her own accord, and com- 
 mitting adultery, loses her dower, unless her hus- 
 band takes her back of his own accord. Co. 
 Litt. 37. 
 
 Stabit prcemmptio donee probetwr in contranum. 
 A presumption will stand good until the con- 
 trary is proved. 1 Greenl. Ev. § S3 n. ; Hpb. 
 297 ; 3 Bla. Com. 371 ; Broom, Max. 949 ; 15 
 Mass. 90 ; 16 id. 87 ; 9 S. & R. 384. 
 
 Stare decisis, et non quieta movere. To adhere 
 to precedents, and not to unsettle things which 
 are established. 9 Johns. 395, 428 ; 11 Wend. 
 504, 507 ; 23 id. 336, 340 ; 25 id. 119, 142 ; 4 Hill, 
 N. Y. 271, 323 ; 4 id. 592, 595 ; 22 Barb. 97, 106 ; 
 87 Penn. 286. 
 
 Stat pro ratione voluntas. The will stands in 
 place of a reason. 1 Barb. 408, 411 ; 16 id. 514, 
 525. „ .„ , 
 
 Stat pro ratione voluntas populi. The will of 
 the people stands in place of a reason. 25 Barb. 
 344, 276. 
 
 Statuta pro publico commodo late interpretantur. 
 Statutes made for the public good ought to be 
 liberally construed. Jenk. Cent. 21. 
 
 Statuta suo cluduntur territorio, nee ultra terri- 
 torium dispommt. Statutes are confined to their 
 own territory, and have no extrar-territorial ef- 
 fect. 4 Allen, 324. 
 
 Statutes in derogation of common law must be 
 strictly construed. 1 Grant, Cas. 57 ; Cooley, 
 Const. Lira. 4th ed. 75 n. 
 
 Statutum affirmativum non derogat eommuni 
 legi. An affirmative statute does not take from 
 the common law. Jenk. Cent. 24. 
 
 Statutum generaliter est intelligendum quando 
 verba statuti sunt specialia, ratio autem. generalis. 
 When the words of a statute are special, but the 
 reason of it general, it is to be understood gener- 
 ally. 10 Co. 101. 
 
 Statutum spedale statuto specvdi non derogat 
 One special statute does not take away from 
 another special statute. Jenk. Cent. 199. 
 
 Sublata causa tollitur effectus. Remove the 
 cause and the effect will cease. 2 Bla. Com. 
 203. 
 
 Sublata veneratione magistratum, respublica 
 1-uit. The commonwealth perishes, if respect 
 for magistrates be taken away. Jenk. Cent. 48. 
 Sublato fundamento cadit opus. Remove the 
 foundation, the structure falls. Jenk. Cent. 
 106. 
 
 Sublato prineipali tollitur adjunctum. If the 
 principal be taken away, the adjunct is also 
 taken away. Co. Litt. 389 ; Broom, Max. 180 n. 
 Succurritur mihori ; fadlis est lapsus juventu- 
 tis. A minor is to be aided ; youth is liable to 
 err. Jenk. Cent. 47. 
 
 Summa caritas eat faeere justitiam singulis et 
 omni tempore quando necesse fuerit. The greatest 
 charity is to do justice to every one, and at any 
 time whenever it may be necessary. 11 Co. 70. 
 
 Summa est lex quce pro religione facit. That is 
 the highest law which favors religion. 10 Mod. 
 117,119; 2Ch. Ca.l8. 
 
 Summa ratio est quae pro religione facit. That 
 consideration is strongest which determines in 
 favor of religion. Co. Litt. 341 a ; Broom, Max. 
 19 ; 5 Co. 14 6 ; 10 id. 55a ; 2 Ch. Cas. 18.. 
 
 Sum/mam esse rationem quce pro religione facit. 
 That consideration is strongest which determines 
 in favor of religion. Dig. 11. 7. 43, cited in 
 Grotius de Jur. Bella, 1. 8, c. 1^, s. 7. See 10 
 Mod. 117, 119. 
 
 Swmmum, jus, snmm.a injuria. The height of 
 law is the height of wrong. Hob. 125. 
 
 Sunday is dies non juridicus. 12 Johns. 178, 
 180, ' 
 
 Superflua non nocent. Superfluities do no in- 
 jury. Jenk. Cent. 184. / 
 
 _iressio veri, expressio falsi. Suppression 
 of the truth Is (equivalent to) the expression of 
 what Is false. 11 Wend. 374, 417. 
 
 Suppresaia veri, suggestio falsi. Suppression 
 of the truth is (equivalent to) the suggestion of 
 what is false. 23 Barb. 521, 525. 
 
 Supremus est quern nemo sequitur. He is last 
 whom no one follows. Dig. 50. 16. 92. 
 
 Surplusagiwn non nocet. Surplusage does no 
 harm. 3 Bouv. Inst. n. 2949; Broom, Max. 
 627. 
 
 Tacita qwjedam habentur pro expressis. Certain 
 things though unexpressed are considered as ex- 
 pressed. 8 Co. 40. 
 
 Talis interpretatio semper flenda est, ut eviteiur 
 absurdum, et inconveniens, et ne judicium sit illu- 
 sorium. Interpretation is always to be made in 
 such a manner that what is absurd and incon- 
 venient is to be avoided, and so that the judg- 
 ment be not nugatory. 1 Co. 52. 
 
 Talis non est eadem, nam nullum simile est idem. 
 What is like is not the same, for nothing similar 
 is the same. 4 Co. 18. 
 
 Tantum bona valent, quantum vendi posmni. 
 Things are worth what they will sell for. 3 Inst. 
 ?05. 
 
 Tempus enim modus tdllendi dbligationes et ae- 
 tiones, quia tempus eitn'it contra desides et sui 
 juris contemptores. For time is a means of de- ' 
 stroying obligations and actions, because time 
 runs against the slothful and contemners of their 
 own rights. Fleta, 1. 4, c. 5, § 13. 
 
 Tenor est qui legem dat feudo. It is the tenor 
 of the feudal grant which regulates its effectand 
 extent. Craig, Jufi Feud., 3d ed. 66. See Co. 
 Litt. 19 a ; 2 Bla. Com. 310 ; 2 Co. 71 ; Broom, 
 Max. 459; Wright, Ten. 21,52, 153. 
 
 Terminus anmyrum eertus debet esse et determi- 
 natus. A term of years ought to be certain and 
 determinate. Co. Litt. 45. 
 
 Terminus et (ac) feodum non possunt eonstan 
 simul in una eademque persona. A term and the 
 fee cannot both be in one and the same person (at 
 the same time). Plowd. 29 ; 3 Mass. 141. 
 
 Terra jnanens vacua occupanti conceditur. Land 
 lying unoccupied is given to the occupant. 1 
 Sid. 347. 
 
 Terra transit cum onere. Land passes with the 
 incumbrances. Co. Litt. 231 ; Broom, Max. 437, 
 630. 
 
 Testamenia latissimam interpretationem liaben 
 debent. Wills ought to have the broadest inter- 
 pretation. Jenk. Cent, 81. 
 
 Testamentum est voluntatis nostra justa senten- 
 tia, de eo quod quis post mortem mam fieri velii. 
 A testament is the just expression of our will 
 concerning that which any one wishes done after 
 his death (or, as Blackstone translates, "tte 
 legal declaration of a man's intentions which he 
 wills to be performed after his death"). 3 Bla.- 
 Com. 499 ; Dig. 28. 1. 1 ; 29. 3. 2. 1. 
 
 Testamentum omne morte consummatum. Every 
 will is completed by death. Co. Litt. 332. 
 
 Testatoris ultima voluntas est perimplenda te- 
 eundum veram intentionem suam. The last will 
 of a testatoris to be fulfilled according to his 
 real intention. Co. Litt. 332. 
 
 Testes ponderantur, non numerantur. See the 
 maxim Ponderantur testes. . . 
 
 Testibus deponentibus in pari numero 'J'ff"''^ 
 bus est credendum. When the number of wit- 
 nesses is equal on both sides, the more worthy 
 are to be believed. 4 Inst. 379. 
 
 Testimonia ponderanda sunt, non nv/neranaa. 
 Testimonies are to be weighed, not numbereo. 
 Trayner, Max. 585. 
 
 Testis de visu preeponderat aliis. An eye-wit- 
 ness outweighs others. 4 Inst. 470. 
 
MAXIM 
 
 215 
 
 MAXIM 
 
 Testis nemo in ma causa esse potest. No one 
 can be a witness in his own cause. (Otherwise 
 in England, by etat. 14 & 15 Vict. fl9, and many 
 of the states of the United States.) 
 
 Testis oculatis unuspliis valet quam auriti decern. 
 One eye-witness is worth ten ear-witnesses. 4 Inst. 
 879. See 3 Bouv. Inst. n. 3154. 
 
 Testmoignes ne poent testifii le negative, mes 
 Vaffirmaiive. Witnesses cannot testify to a 
 negative ; they must testify to an atUrmative. 
 
 4 Inst. 279. 
 
 That which T may defeat by my entry I make 
 good by my confirmation. Co. Litt. 300. 
 
 The fund which has received the benefit should 
 make the satisfaction. 4 Bouv. Inst. n. 3730, 
 
 Things accessary are of the nature of the prin- 
 cipal. Finch, Law, b. 1, c. 3, n. 25. 
 
 Tilings are construed according to that which was 
 the cause thereof. Finch, Law, b. 1, c. 3, n. 4. 
 
 Things are dissolved as they be contracted. 
 Finch, Law, b. 1, c. 3, n. 7. 
 
 Things grounded upon an ill and void beginning 
 cannot have a good perfection. Finch, Law, b. 1, 
 c. 3, n. 8. 
 
 Things in action, entry, or re-entry cannot be 
 granted over. 19 N. Y. 100, 103. 
 
 Things incident cannot be severed. Finch, Law, 
 b. 3, c. 1, n. 12. 
 
 Things incident pass by the grant of the princi- 
 pal. 25. Barb. 284, 310. 
 
 Things incident shall pass by the grant of the 
 principal, but not the principal by the grant of the 
 incident. Co. Litt. 152 a, 151 b; Broom, Max. 433. 
 
 Things shall not be void which may possibly be 
 good. 
 
 T^mores vani sunt cestimandi qui non cadunt in 
 constantem virum. Fears which do not affect a 
 brave man are vain. 7 Co. 17. 
 
 TUulus est jusia causa possidendi id quod nos- 
 trum est. Title is the just cause of possessing that 
 which is ours. 8 Co. 153 (305) ; Co. Litt. 345 b. 
 
 Tolle volvMtatem et erit omnis actus indifferens. 
 Take away the will, and every action will be in- 
 different. Bract. 2. 
 
 Totum prcefertur unicuique parte. The wliole 
 is preferable to any single part. 3 Co. 41 a. 
 
 Tout ce que la loi ne defend pas est permis. 
 Everything is permitted which is not forbidden 
 by law. 
 
 Toute exception non surveilUe tend i prendre la 
 plice du principe. Every exception not watched 
 tends to assume the place of the principle. 
 
 Ih'octent fdbrilia fabri. Let smiths perform 
 the work of smiths. 3 Co. Epist. 
 
 Traditio loqui facit chartam. Delivery maizes 
 the deed speak. 5 Co. 1. 
 
 Traditio nihil amplius transferre debet vel po- 
 test, ad eum qui accipit, quam est apud eum qui 
 tradit. Delivery cannot and ought not to trans- 
 fer to him who receives more than was in posses- 
 sion of him who made the delivery. Dig. 41. 1. 20. 
 
 Transgressione multiplicata, crescat pt^nce infiic- 
 tio. When transgression is multiplied, let the 
 infliction of punishment be increased. 2 Inst. 479. 
 
 Transit in rem judicatum. It passes into a 
 judgment. Broom, Max. 298; 11 Pet. 100; 1 
 Pick. 70. See, also, 18 Johns. 463 ; 2 Sumn. 436 : 
 6 East, 251. 
 
 Transit terra cum onere. The land passes with 
 its burden. Co. Litt. 231 a; Shep. Touch. 178; 
 
 5 B. & C. 607 ; 7 M. & W. 530 ; 3 B. & A. 587 ; 
 18 C. B. 845 ; 19 Pick. 453 : 24 Barb. 365 ; Broom, 
 Max. 495, 706. 
 
 Tresfaciunt collegium. Three form a corpora- 
 tion, Dig. 50. 16. 85 ; 1 Bla. Com. 469. 
 
 Triatio ibi semper debet fieri, ubijuratores meli- 
 orem possunt habere notitiam. Trial ought always 
 to he had where the jury can have the best 
 Iniowledge. 7 Co. 1. 
 
 Trusts survive. 
 
 Tin-pis est part quce non convenit cum suo totn. 
 That part is bad which accords not with its 
 whole. Plowd. 161. 
 
 Tula est citstodia quce sibimet creditur. That 
 guardianship is secure which trusts to itself 
 alone. Hob. 340. 
 
 Tutins erratur ex parte mitiori. It is safer to 
 err on the side of mercy. 3 Inst. 220. 
 
 Tmtius semper est errare aequietando, quam in 
 puniendo ; ex parte miserieordiee quam ex parte 
 justitia. It is always safer to err in acquitting 
 than punishing, on the side of mercy than on the 
 side of justice. Branch, Princ; 2 Hale, P. C. 
 290 ; Broom, Max. 326 ; 9 Mete. 116. 
 
 Vbi aliquid conceditur, eomceditur et id sine qua 
 res ipsa, esse non potest. When any thing is 
 granted, that also is granted without which the 
 thing granted cannot exist. Broom, Max. 483 : 
 13 ivf. & W. 706. 
 
 Ubi aliquid impeditur propter unum, eo remoto, 
 tollitur impedirnentum. When any thing is im- 
 peded by one single cause, if that be removed 
 the impediment is removed. 5 Co. 77 a. 
 
 Vbi cessat remedium ordinarium ibi decurritur 
 ad extraordinarium. When a common remedy 
 ceases to be of service, recourse must be had to 
 an extraordinary one. 4 Co. 93. 
 
 Ubi culpa est, ibi poena stiiesse debet. Where a 
 crime is committed, there the punishment should 
 be inflicted. Jenk. Cent. 325. 
 
 Vbi damna dantur, victm victori in expensis 
 condemnari debet. Where damages are given, the 
 losing party should be adjudged to pay the costs 
 of the victor. 2 Inst. 289 : 3 Sharsw. Bla. Com. 
 399. 
 
 Vbi eadem ratio, ibi idem jux. Where there is 
 the same reason, there is the same law. 7 Co. 
 18 ; Broom, Max. 103, n., 153, 155. 
 
 Ubi et dantis et accipientis turpitndo versatur, 
 non posse repeti dicimus ; quotiens autem, accipien- 
 tis turpitude versatur, repeti posse. Where there 
 is turpitude on the part of both giver and re- 
 ceiver, we say it cannot be recovered back ; but 
 as often as the turpitude is on the side of the re- 
 ceiver (alone) it can be recovered back. 17 
 Mass. 562. 
 
 Vbi factum nullum,, ibi fortia nulla. Where 
 there is no act, there can be no force. 4 Co. 43. 
 
 Vbi jus, ibi remedium. Where there is a right, 
 there is a remedy. Broom, Max. 191,2,204; 1 
 Term, 512; Co. Litt. 197 6; 3 Bouv. Inst. n. 
 2411 ; 4 id. 3726 ; 7 Gray, 197. 
 
 Ubi jus incertum, ibi jus nullum. Where the 
 law is uncertain, there is no law. 
 
 Ubi lex aliquem eogit ostendere causam, necesse 
 est quod causa sit justa et legitima. Where the 
 law compels a man to show cause, it is necessary 
 that the cause be just and legal. 2 Inst. 269. 
 
 Vbi lex est specialis, et ratio ejus generalis, gene- 
 raliter accipienda est. Where the law is special 
 and the reason of it is general, it ought to be 
 taken as being general. 2 Inst. 43. 
 
 Ubi lex non distinguit, nee nos disUnguere debe- 
 mus. Where the law does not distinguish, we 
 ought not to distinguish. 7 Co. 5. 
 
 Vbi major pars est, ibi totum. Where is the 
 greater part, there is the whole. P. Moore, 578. 
 
 Vbi matrimonium, ibi dos. Where there is 
 marriage, there is dower. Bract. 92. 
 
 Xfbi non adest norma legis, omnia quasi pro sws- 
 pectis habenda sunt. When the law fails to serve 
 as a rule, almost every thing ought to be sus- 
 pected. Bacon, Aph. 25. 
 
 Vbi non est condendi auctoritas, ibi non est par- 
 endi necessitas. Where there is no authority to 
 establish, there is no necessity to obey. Dav. 
 
MAXIM 
 
 216 
 
 MAXIM 
 
 Ubi nan est directa lex, standum est arbitrio 
 judicis, vel procedendum ad similia. Where there 
 is no direct law, the judgment of the judge must 
 be depended upon, or reference made to eimilar 
 eases. 
 
 VM non est lex, iU non est transgressio quoad 
 mwndum. Where there is no law, there is no 
 transgression , as it regards the world. 4 Co. 1 6. 
 
 Ubi non est manifesto injustitia,judiceahabentur 
 pro bonis viris, et judieatum pro veritate. Where 
 there is no manifest injustice, the judges are to 
 be regarded as honest men, and their judgment 
 as truth. 1 Johns. Cas. 341, 345. 
 
 Vbi rum est principalis, non potest esse acees- 
 sorius. Where there is no principal, there can 
 be no accessory. 4 Co. 43. 
 
 Ubi nulla est conjeetura quce ducat alio, verba 
 intelligenda sunt ex proprietate non grammatica 
 ledpopulari ex itsu. Where there is no inference 
 which would lead in any other direction, words 
 are to be understood according to their proper 
 meaning, not grammatical, but according to 
 
 fopular usage. Grotius, de Jur. Belli, 1. 3, c. 
 6, § 2. 
 
 Ubi nullum matrimonium, ibi nulla dos. Where 
 there is no marriage there is no dower. Co. Litt. 
 33 a. 
 
 Ubi perieulum, ibi et lucrum eollocatur. He at 
 whose risk a thing is, should receive the profits 
 arising from it. 
 
 Ubipugnantia inter se in testamentojuberentur, 
 nevtrum ratum est. When two directions con- 
 flicting with each other are given in a will, 
 neither is held valid. Dig. 50. 17. 188 pr. 
 
 Ubi quid generaliter conceditur, inest fusee exeep- 
 tio, si non aliquid sit contra jus fasque. Where a 
 thing is granted in general terms, this exception 
 is present, that there shall be nothing contrary 
 to law and right. 10 Co. 78. 
 
 Ubi quis ddinquit iH pwnietur. Let a man be 
 punished where he commits the cfiience. 6 Co. 
 47. 
 
 Ubi verba conjuncta non sunt, sufflcit alterutrum 
 esse factum. Where words are used disjune- 
 tively, it is sufficient that either one of the things 
 enumerated be performed. Dig. 50. 17. 110. 3. 
 
 Ubicunque est injuria, ibi damnum sequitur. 
 Wherever there is a wrong, there damage fol- 
 lows. 10 Co. 116. 
 
 Ultima voluntas testatoris est perimplenda se- 
 cundum veram intentionem suam. The last will 
 of a testator is to be fulfilled according to his 
 true intention. Co. Litt. 333 ; Broom, Max. 
 566. 
 
 Ultimum gtipplicium. esse mortem solam inter- 
 pretamur. The extremest punishment we con- 
 sider to be death alone. Dig. 48. 19. 21. 
 
 Ultra posse non potest esse et vice versa. What 
 is beyond possibility cannot exist, and the re- 
 verse (what cannot exist is not possible) . Wing. 
 Max. 100. 
 
 Un ne doit prise advantage de son tort demesne. 
 One ought not to take advantage of his own 
 wrong. 3 Apd. 38, 40. 
 
 Una persona vix potest supplere vices duarum. 
 One person can scarcely supply the place of two. 
 4 Co. 118. 
 
 Unius omnino testis responiio non audiatur. 
 Let not the evidence of one witness be heard at 
 all. Code, 4. 30. 9 ; 3 Bla. Com. 370. 
 
 UniuseujKsque conti-actus initium spectandum 
 est, et causa. The beginning and cause of every 
 contract must be considered. Dig. 17. 1. 8 ; 
 Story, Bailm. § 56. 
 
 Universttlia sunt notiora singularibus. Things 
 universal are better known than things particu- 
 lar. 2 Rolle, 294 ; 3 C. Rob. 294. 
 
 UniversUas vel corporatio non dieitur aliquid 
 facere nisi id sit collegialiter deliberatum, etiomsi 
 
 major pars id facial. An university or corpora- 
 tion is not said to do any thing unless it be de- 
 liberated upon coUegiately, although the ma- 
 jority should do it. Dav. 48. 
 
 Uno absurdo dato, inflnita sequuntur. One ab- 
 surdity beingallowed, an infinity follow. 1 Co. 108. 
 
 Unumquodque dissolvitur eodem ligamine gii» 
 ligatur. Every thing is dissolved by the same 
 mode in which it is bound together. Broom 
 Max. 884 ; 9 Pick. 303. ' 
 
 Unumquodque eodem modo quo conigattm'0si 
 dissolvitur. In the same manner in which any 
 thing is bound it is loosened. 2 Rolle, 39- 
 Broom, Max. 891. ' 
 
 Unumquodque est id quod est principalius in ip. 
 go. That which is the principal part of a thing 
 is the thing itself. Hob. 123. 
 
 Unum^uodq'ue ligamen dissoMtur eodem ligamine 
 quo et ligatur. Every obligation is dissolved in 
 the same manner in which it is contracted. 2M. 
 & G. 729 ; 12 Barb. 366, 375. 
 
 Unumquodque prineipiorum est sibimetipsijldet; 
 et perspicaa vera non sunt probanda. Every 
 principle is its own evidence, and plain truths 
 are not to be proved. Co. Litt. 11 ; Branch, Princ. 
 
 Usntcapio constituta est ut aliquis litium finit 
 esset. Prescription was instituted that there 
 might be some end to litigation. Dig. 41. 10. 5 ; 
 Broom, Max. 894, n. ; Wood, Civ. Law,3d ed. 123. 
 
 Usury is odious in law. 
 
 Usus est dominium Jiduciarium. A use is a fi- 
 duciary ownership. Bacon, Uses. 
 
 Ut pcena ad paueos, metus ad omnes perveniat. 
 That punishment may happen to a few, the fear 
 of it afi'ects all. 4 Inst, 63. 
 
 Ut res magis valeat quam pereat. That the 
 thing may rather have efiect than be destroyed, 
 11 Allen, 445 ; 100 Mass. 113 ; 108 Mass. 373. 
 
 UtUe per inutile non vitiatur. What is usefol 
 is not vitiated by the useless. Broom, Max.OZT- 
 8 ; S Bout. Inst. nn. 2949, 3293 ; 2 Wheat. 221 ; 
 2 8. & R. 298 ; 17 id. 297 ; 6 Mass. 303 ; 12 M. 
 438 ; 17 Pick. 90 ; 7 Allen, 571 ; 9 Ired. 254. See 
 18 Johns. 93, 94. 
 
 Uxor et fllius sunt nomiTia naturrn. Wife and 
 son are names of nature. 4 Bacon, Works, 850. 
 
 Uxor non est sui juris, sed sub potestate viri. A 
 wife is not her own mistress, but is under the 
 power of her husband, 3 Inst, 108. 
 
 Uxor sequitur domicUium viri. A wife follows 
 the domicil of her husband. Trayner, Max. 608. 
 
 Vagdbundnm nuncupamus eum qui nullibi domi- 
 cUium contraxit habitationis. We call him a vaga- 
 bond who has acquired nowhere a domicil of 
 residence. Phill. Dom. 23, note. 
 
 Valeat quantum valere potest. It shall have 
 effect as far as it can have effect. Cowp. 600 1 4 
 Kent, 493; Shcp. Touch. 87. 
 
 Vana est ilia potentia quce nwnqiuim venit fn 
 actum. Vain is that power which is never 
 brought Into action. 2 Co. 51. 
 
 Tani timores sunt cestimjindi, qui non eaduntin 
 constantem virum. Vain are those fears which 
 affect not a brave man. 7 Co. 27. 
 
 Vani timoris justa excusatio n07i est. A frivolous 
 fear is not a legal excuse. Dig. 50. 17. 184; 8 
 Inst, 483 ; Broom, Max, 256, n, 
 
 Velle non creditur qui obsequitur imperio pairii 
 vel domini. He is not presumed to consent who 
 obeys the orders of his father or his master. Dif, 
 50. 17. 4. 
 
 Vendens eandem rem duobus falsarius est. He 
 is fraudulent who sells the same thing twice. 
 Jenk. Cent. 107. 
 
 Venice facilitas incentivum est deliitquendi. FS' 
 cility of pardon is an incentive to crime. 3 Inst. 
 286. 
 
 Verba accipienda sunt secundum mift/oeWi tM- 
 
MAXIM 
 
 217 
 
 MAXIM 
 
 teriam. Words are to be interpreted according 
 to tlie subject-matter. 6 Co. 6, n. 
 
 Verba accipienda ut aortientur effectum. Words 
 are to be taken so that they may have some effect, 
 i Bacon, Works, 258. 
 
 Verba aquivoca ae in dubio senau posita, intelli- 
 guntnr digniori et potentiori sensu. Equivocal 
 words and those in a doubtful sense are to be 
 taken in their best and most effective sense, 6 
 Co. 20. 
 
 Verba aliquid operari debent — debent intelligi ut 
 aliquid operentur. Words ought to have some 
 effect— words ought to be Interpreted so as to 
 give them some effect. 8 Co. 94. 
 
 Verba aliquid operaH debent, verba cum effectu 
 aunt accipienda. Words are to be taken so as to 
 have effect. Bacon, Max. Beg. 3, p. 47. See 
 1 Duer, Ins. 210, 211, 216. 
 
 Verba artia ex arte. Terms of art should be 
 explained from the art. 2 Kent, 556, n. 
 
 Verba chartarumfortiua accipiuntur contra pro- 
 ferentem. The words of deeds are to be taken 
 most strongly against the person offering them. 
 Co. Litt. 36 a ; Bacon, Max. Beg. 8 ; Noy, Max. 
 9th ed. p. 48 ; 3 B. & P. 399, 403 : 1 C. & M. 
 657 ; 8 Term, 605 ; 15 East, 546 ; 1 Ball. & B. 
 335; 2 Pars. Con. 22; Broom, Max. 594. 
 
 Verba cum effectu accipienda aunt. Words are 
 to be interpreted so as to give them effect. Bacon 
 Max. Beg. 3. 
 
 Verba currentis monetae, tempus aolutionis de- 
 aignant. The words " current money" refer to 
 the time of payment. Dav. 20. 
 
 Verba debent intelligi cum effectu. Words 
 should be understood effectively. 3 Johns. Cas. 
 97, 101. 
 
 Verba debent intelligi ut aliquid operentur: 
 Words ought to be so understood that they may 
 have some effect. 8 Co. 94 a. 
 
 Verba dicta de persona, intelligi debent d^. eon- 
 ditione personcs. Words spoken of the person 
 are to be understood of the condition of the 
 person. 3 Bolle, 72. 
 
 Verba generalia generaliter aunt intelligenda. 
 General words are to be generally understood. 3 
 Inst. 76, 
 
 Verba generalia reatringtmtur adTidbilitatem rei 
 vd aptitudinem persona. General words must 
 be restricted to the nature of the subject-matter 
 or the aptitude of the person. Bacon, Max, 
 Beg. 10 ; 11 C. B. 254, 3.56. 
 
 Verba getieralia restringuntur ad habUitatem rei 
 velpersonie. General words must be confined or 
 restrained to the nature of the subject or the 
 aptitude of the person. Bacon, Max. Beg, 10 ; 
 Broom, Max. 646. 
 
 Verba illata {relata) ineaae vldentur. Words 
 referred to are to be considered as if Incorpo- 
 rated. Broom, Max. 674, 677 : 11 M, & W. 183, 
 188 ; 10 C. B. 261, 263, 266. 
 
 Verba in differenti materia per prius, non per 
 posteriua, intelligenda sunt. Words referring to 
 a different subject are to be interpreted by what 
 goes before, not by what follows. Calvinus, Lex. 
 
 Verba intelligenda sunt in casu possibUi, Words 
 are to be understood in reference to a possible 
 case. Calvinus, Lex. 
 
 Verba intentioni, et non e contra, debent inser- 
 vire. Words ought to wait upon the intention, 
 not the reverse. 8 Co. 94 ; 6 Allen, 324 ; 1 Spence, 
 Eq. Jur. 527 ; 2 Sharsw. Bla. Com. 379. 
 
 Verba ita sunt intelligenda, ut res magia valeat 
 qtiam pereat. Words are to be so understood 
 that tlie subject-matter may be preserved rather 
 than destroyed. Bacon, Max. Beg. 3 : Plowd, 
 156; 2 Bla. Com, 380 ; 3 Kent, 555, 
 
 Verba mere tsquivoea, ai per communem umm 
 loquendi in intellectu certo aumuntur, talis intel. 
 lectus praferendm eat. When words are merely 
 
 equivocal, if by common usage of speech they 
 acquire a cert-ain meaning, such meaning is to be 
 preferred, Calvinus, Lex, 
 
 Verba nihil operari melius eat quam absurde. It 
 is better that words should have no operation, 
 than to operate absurdly, Calvinus, Lex, 
 
 Verba non tarn intuenda, quam cauaa et natura 
 rei, ut mens contrahentium ex eispotiua quam ex- 
 verbis appareat. Words are not to be looked at 
 so much as the cause and nature of the thing, 
 since the intention of the contracting parties 
 may appear from those rather than from the 
 words, Calvinus, Lex, 
 
 Verba offendi poasunt, imo ab eis recedere licet, 
 ut verba ad sanum intellectum reducantur. Tou 
 may disagree with words, nay, you may recede 
 from them. In order that they may be reduced to 
 a sensible meaning, Calvinus, Lex, 
 
 Verba ordinationis qnando veriflcari posaunt in 
 sua vera aigniflcatione, trahi ad extrameum intellec- 
 tum non debent. When the words of an ordi- 
 nance can be made true in their true signification, 
 they ought not to be warped to a foreign mean- 
 ing. Calvinus, Lex. 
 
 Verba posteriora propter eertitudinem addita, ad 
 priora quce ^certitudine indigent, sunt referenda. 
 Subsequent words added for the purpose of cer- 
 tainty are to be referred to preceding words in 
 which certainty is wanting. Wing. Max. 167 ; 
 6 Co, 236 ; Broom, Max, 5S&. 
 ' Verba pro re et aubjecta materia aeeipi debent. 
 Words should be received most favorably to the 
 thing and the subject-matter, Calvinus, Lex, 
 
 Verba quce aliquid operari poasunt non debent 
 esse superjlua. Words which can have any effect 
 ought not to be treated as surplusage. Calvinus, 
 Lex. 
 
 Verba, quantumvia generalia, ad aptitudinem 
 restringuntur, etiam^i nullam aliam paterentur 
 reatrietionem. Words, howsoever general, are 
 restrained to fitness (». e. to harmonize with the 
 subject matter) though they would bear no other 
 restriction. Spiegelius. 
 
 Verba relata hoc maxima operantur per referen- 
 tiam ut in eis ineaae videntur. Words to which 
 reference is made In an instrument have the 
 same effect and operation as if they were inserted 
 In the clause referring to them. Co. Litt. 359 ; 
 Broom, Max. 673 ; 14 East, 568 ; 66 Penn. 56. 
 
 Verba relata inesse videntur. Words to which 
 reference is made seem to be Incorporated, 11 
 Cush. 137; 121 Maes. 50, 
 
 Verba aecwndum materiam aubjectam intelligi 
 nemo eat gui nescit. There is no one who is igno- 
 rant that words should be understood according 
 to the subject-matter, Calvinus, Lex, 
 
 Verba semper accipienda sunt in mitiari senau. 
 Words are always to be taken in their milder 
 sense, 4 Co, 17. 
 
 Verba atrietce signiflcationia ad latum extendi 
 poasunt, si subsU ratio. Words of a strict signifl- 
 cation can be given a wide signification if reason 
 require. Calvinus, Lex ; Spiegelius. 
 
 Verba aunt indicea animi. Words are indica^ 
 tions of the intention. Latch, 106.' 
 
 Verbis standumubi nulla ambiguitas. One must 
 abide by the words where there is no ambiguity. 
 Trayner, Max. 612. 
 
 Verbum imperfecti temporis rem adhuc imper- 
 feetam signiflcat. The imperfect tense of the 
 verb indicates an incomplete matter. 6 Wend. 
 103, 120. 
 
 Veredicttiim, quaai dictum veritatis ; ut jfidicium, 
 quasi juris dictum. A verdict is as it were the 
 saying of tfie truth. In the same manner that a 
 judgment is the saying of the law. Co. Litt. 226. 
 
 Veritas dem^natrationis tollit errorem nominis. 
 The truth of the description removes the error of 
 the name. 1 Ld. Baym. 303. See Leoaieb. 
 
MAXIM 
 
 218 
 
 MAY 
 
 VerUas habenda eit in jwratore; justitia et judi- 
 cium in judice. Truth is the desideratum in a 
 juror ; justice and judgment, in a judge. Bract. 
 185 6. 
 
 Veritas nihU veretur nisi abscondi. Truth fears 
 nothing but concealment. 9 Co. 20. 
 
 Veritat nimiwm aUereando amittitur. By too 
 much altercation truth is lost. Hob. 344. 
 
 Veritas nominis tollit errorem denionairationis. 
 The truth of the name takes away the error of 
 description. Bacon, Max. Keg. 35; Broom, 
 Max. 637, 641 ; 8 Taunt. 313 ; 3 Jones, Eq. N. 
 C. 73. 
 
 Veritatem qui non Ubere pronuneiat, proditor 
 est veritatis. He who does not speak the truth 
 freely is a traitor to the truth. 4 Inst. Epil. 
 
 Via antiqua via est tnta. The old way is the 
 safe way. 1 Johns. Ch. 527, 530. 
 
 Via trita est tutissima. The beaten road is the 
 safest. 10 Co. 142 ; 4 Maule & S. 168. 
 
 Via trita, via tuta. The old way is the safe 
 way. 5 Pet. 223 ; Broom, Max. 134. 
 
 Vicarius non hahet vicarium. A deputy cannot 
 appoint a deputy. Branch, Max. 33 ; Broom, 
 Max. 839 ; 2 Bouv. Inst. n. 1300. 
 
 Vicini viciniora proesumuntur sci^e. Neigh- 
 bors are presumed to know things of the neigh- 
 borhood. 4 Inst. 173. 
 
 Videbis ea scepe committi, qua saepe vindicantur. 
 Tou will see those things frequently committed 
 which are frequently punished. 3 Inst. Epilog. 
 
 Videtur qui surdus et mulus nepoetfaire aliena- 
 tion. It seems that a deaf and dumb man can- 
 not alienate. 4 Johns. Ch. 441, 444. 
 
 Vigilantibus et non dormientibusjura subvenitmt. 
 The laws serve the vigilant, not those who sleep. 
 2 Bouv. Inst. n. 2327 ; 7 Allen, 493 ; 8 id. 133 ; 
 12 id. 28 ; 10 Watts, 34. See Laches : Broom, 
 Max. 65, 772, 892. 
 
 Vim vi repellere licet, modo flat moderamine im- 
 eulpata tvielce, non ad sumendam vindictam, sed 
 ad populsandam injuriam. It is lawful to repel 
 force by force ; but let it be done with the self- 
 control of blameless defence, — not to take re- 
 venge, but to repel injury. Co. Litt. 162. 
 
 Viperina est expositio qwe corrddit i)iseera textus. 
 That is a viperous exposition which gnaws out 
 the bowels of the text. 11 Co. 34. 
 
 Vir et uxor censentur in lege una persona. 
 Husband and wife are consideied one person In 
 law. Co. Litt. 112 ; Jenk. Cent. 27. 
 
 Vires acquirit e^mdo. It gains strength by 
 continuance. 1 Johns. Ch. 231, 237. 
 
 Vis legibus est inimica. Force is inimical to 
 the laws. 3 Inst. 176. 
 
 Vitium elerici nocere non debet. Clerical errors 
 ought not to prejudice. Jenk. Cent. 23 ; Dig. 
 34. 5. 3. 
 
 Vitium est quod fugi debet, ne, si rationem non 
 invenias, max legem sine ratione esse elames. It is 
 a fault which ought to be avoided, that if you 
 cannot discover the reason, you should presently 
 exclaim that the law is without reason. Ellesm 
 Postn. 86. 
 
 Vix uUa lex fieri potest quae omnibus commoda 
 sit, sed si majori parti prospiciat, utUis est. 
 Scarcely any law can be made which is beneficial 
 to all ; but if it benefit the majority it is useful. 
 Plowd. 369. 
 
 Vocabmla artium explicanda sunt secundum de- 
 flnitiones prudentium. Terms of art should be 
 explained according to the definitions of those 
 who are experienced in that art. Puffendorfi' 
 de Off. Bom. 1. 1, c. 17, § 3 ; Grotius, Jur. de 
 Bell. 1. 2, c. 16, § 3. 
 
 Void in part, void in toto. 16 N. T. 9, 96. 
 
 Void things are as no thirds. 9 Cow. 778, 784. 
 
 Volenti non fit injuria. He who consents can- 
 not receive an injury. 2 Bouv. Inst, nn, 
 
 2327; Broom, Max. 268-9,271,395; Shelf. Man- 
 & D. 449 ; Wing. Max. 482 ; 4 Term, 6.57 : Plowd' 
 501 ; 1 Mete. Mass. 275 ; 7 Cush. 145 ; 11 u 
 386, .550 ; 7 Allen, 175 ; 5 Johns. Ch. 257. 
 
 VoluH sed non dixit. He willed but did not 
 say. 4 Kent, 538. 
 
 Voluntas donatoris in charta doni sui manifeste 
 expressa observetur. The will of the donor 
 clearly expressed in the deed, should be ob^ 
 served. Co. Litt. 21 a. 
 
 Voluntas et propositwm dislinguunt nwkflda. 
 The will and the proposed end distimruished 
 crimes. Bract. 2 b, 136 6. 
 
 Voluntas fadt quod in testamento seriptwm 
 valeat. The will of the testator gives validity to 
 what is written in the will. Dig. 30. 1. 13. 3. 
 
 Voluntas in delictis non exitus spectatur. In 
 oft'ences, the will and not the consequences are to 
 be looked to. 2 Inst. 57. 
 
 Voluntas reputatur pro facto. Thewill is tohe 
 taken for the deed. 3 Inst. 69 ; Broom, Max 
 341 ; 4 Mass. 439. 
 
 Voluntas testatoris ambulatoria est usque ad 
 mortem. The will of a testator is ambulatory 
 until his death (that is, he may change it at any 
 time). See 1 Bouv. Inst. n. 33 ; 4 Co. 61. 
 
 Voluntas testatoris habet interpretationem latam 
 et benignam. The will of the testator has abroad 
 and liberal interpretation. Jenk. Cent. 260: 
 Dig. 50. 17. 12. 
 
 Voluntas ultima testatoris estperimplenda secun- 
 dum veram intentionem mam. The last will of 
 a testator is to be fulfilled according to his true 
 Intention. Co. Litt. 322. 
 
 Vox emissa volat, — litera icripta manet. Words 
 spoken vanish, words written remain. Broom, 
 Max. 666 ; 1 Johns. 571, 572. 
 
 We must not suffer the rule to be frittered away 
 by exceptions. 4 Johns. Ch. 46. 
 
 W!iat a man cannot transfer, he cannot Mnd 6y 
 articles. ' 
 
 When m,any join in one act, the law says it is the 
 act of hitn who could best do it ; and things shaiM 
 be done by him, who has the best skill. Noy, Max. 
 
 Wh^n no time is limited, the law appoints the 
 most convenient. 
 
 When the common law and statute law concur, 
 the common is to be preferred. 4 Co. 71, 
 
 When the foundation fails, all fails. 
 
 When the law gives any thing, it gives a remedg 
 for the tame. 
 
 When thelaw presumes the affirmative, the nega- 
 tive is to be proved. 1 RoUe, 83 ; 3 Bouv. Inet. 
 nn. 3063, 3090. 
 
 Wfien two titles concur, the best is prefemi. 
 Finch, Law, b. 1, c. 4, n. 82. 
 
 Where there is equal equity, the law naut pri- 
 vaa. 4 Bouv. Inst. n. 3727. 
 
 Where two rights concur, the more andent ihaU 
 be preferred. 
 
 MAY. Is permitted to ; has liberty to. 
 In interpreting statutes the word may 
 should be construed as equivalent to shall or 
 must in cases where the good sense of the en- 
 tire enactment requires it ; 22 Barb. 404 ; 
 wherever it is necessary in order to carry out 
 the intention of the legislature ; 1 Pet. 46 ; 
 4 Wall. 435 ; 3 Neb. 224 ; where it is neces- 
 sary for the preservation or enforcement of 
 the rights and interests of the public or third 
 persons; 18 Ind. 27; 61 Me. 566; 48 Mo. 
 167; 107 Mass. 194, 197; 12 How. Pr.224; 
 but not for the purpose of creating or deter- 
 mining the character of rights; 28 Ala. 28; 
 
MAYHEM 
 
 219 
 
 MEASURE 
 
 39 Mo. 521. Where there is nothing in the 
 connection of the language or in the sense and 
 policy of the provision to require an unusual 
 interpretation, its use is merely permissive 
 and discretionary ; 24 N. Y. 405 ; 50 Barb. 
 339 ; 77 111. 271 ; 27 N. J. L. 407. See 53 
 Me. 438; 1 Penio, 457; 48 Mo. 167; 125 
 Mass. 198. 
 
 MAYHEM. In Criminal Law. The 
 act of unlawfully and violentlj^ depriving an- 
 other of the use of such of his members as 
 may render him less able, in fighting, either 
 to defend himself or annoy his adversary. 8 
 C. & P. 167. But one may not innocently 
 maim himself, and where he procures another 
 to maim him, both are guilty ; Co. Litt. 127 a; 
 17 Wend. 351, 352. The cutting or disabling 
 or weakening a man's hand or finger, or 
 striking out his eye or foretooth, or depriving 
 him of those parts the loss of which abates 
 his courage, are held to be mayhems ; 7 
 Humphr. 161. But cutting off the ear or 
 nose, or the like, are not held to be may- 
 hems at common law ; 4 Bla. Com. 205. The 
 injurv must be permanent; 8 Port. 472 ; 30 
 La. An. II. 1329. 
 
 These and other severe personal injuries 
 are punished by the Coventry Act, which has 
 been re-enacted in several of the states ; 
 1 Hawk. P. C. Curw. ed. 107, § 1 ; Ryan, 
 Med. Jur. 191, Phil. ed. 1832 ; and by con- 
 
 f-ess. See Act of April 30, 1790, s. 13, 1 
 tory, U. S. Laws, 85 ; Act of March 3, 
 1825, s. 22, 3 id. 2006 ; Rev. Stat. § 1342, 
 art. 58 ; 10 Ala.' N. 8. 928; 5 Ga. 404; 7 
 Mass. 245; 1 Ired. 121 ; 6 S. & R. 224; 2 
 Va. Gas. 198; 4 Wise. 168. Mayhem is not 
 an offence at common law, but only an aggra- 
 vated trespass ; 7 Mass. 248; 3 Binn. 595. 
 See 11 Rich. 165 ; 2 Bish. Cr. L. §§ 1001- 
 1008, n. 2, p. 566. 
 
 MA7HEMAVIT. Maimed. This is a 
 term of art which cannot be supplied in 
 pleading by any other word, as mutilavit, 
 truncavit, etc. ; 3 Thomas, Co. Litt. 548 ; 7 
 Mass. 247. 
 
 Id indictments for mayhem the words/eZoni- 
 omly and did maim are requisite; Whart. Cr. 
 Pr. § 260, n. 
 
 MAYOR. (Lat. major ; Spelman, Gloss. 
 Meyr, m.iret, maer, one that keeps guard. 
 Cowel ; Blount ; Webster.) The chief gov- 
 ernor or executive magistrate of a city. The 
 old word was portgreve. The word mayor 
 first occurs in 1189, when Rich. I. substituted 
 a mayor for the two bailiffs of London. The 
 word is common in Bracton. Brae. 57. In 
 London, York, and Dublin, he is called lord 
 mayor. Wharton, Lex. 
 
 It is generally his duty to cause the laws of 
 the city to be enforced, and to superintend in- 
 ferior officers, such as constables, watchmen, 
 and the like. But the power and authority 
 which mayors possess, being given to them by 
 local regulations, vary in different places. 
 
 MAYOR'S COXTRT. The name of a 
 court usually established in cities, composed 
 
 of a mayor, recorder, and aldermen, gene- 
 rally having jurisdiction of offences commited 
 within the city, and of other matters specially 
 given them by the statute. 
 
 MAOYRAZGO. In Spanish Law. A 
 species of entail known to Spanish law. 1 
 New Rec. 119. 
 
 MEANDER. To wind as a river or 
 stream. Webster. 
 
 The winding or bend of a stream. 
 
 To survey a stream according to its mean- 
 ders or windings. 2 Wise. 317 ; 7 Wall. 272. 
 
 MEASON-DUE. A corruption of Mai- 
 son de Dieu. 
 
 MEASURE. A means or standard for 
 computing amount. A certain quantity of 
 something, taken for a unit, and which ex- 
 presses a relation with other quantities of the 
 same thing. 
 
 The constitution of the United States gives 
 power to congress to "fix the standard of 
 weights and measures." Art. 1, ». 8. 
 
 The states, it seems, possess the power to 
 legislate on this subject, or, at least, the ex- 
 isting standards at the adoption of the consti- 
 tution remain in full force ; 3 Story, Const. 
 21 ; Rawle, Const. 102 ; but it has been de- 
 cided that this constitutional power is exclu- 
 sive in congress when exercised ; 7 How. 
 282; 29 Penn. 27. 
 
 By a resolution of congress, of the 14th 
 of June, 1836, the secretary of the treasury 
 is directed to cause a complete set of all 
 weights and measures adopted as standards, 
 and now either made or in the progress of 
 manufacture, for the use of the several cus- 
 tom-houses and for other purposes, to be de- 
 livered to the governor of each state in the 
 Union, or to such person as he may appoint, 
 for the use of the states respectively, to the 
 end that a uniform standard of weights and 
 measures may be established throughout the 
 United States. The act of March 3, 1881, 
 requires the same to be furnished to such agri- 
 cultural colleges in every state as have re- 
 ceived grants of land from the United States. 
 The act of July 28, 1866, authorized the use 
 of the French metric system of weights and 
 measures in this country, and provided that 
 no contract or dealing, or pleading in any 
 court, shall be deemed invalid or liable to ob- 
 jection, because the weights or measures ex- 
 pressed or referred to therein are weights or 
 measures of the metric system ; Rev. Stat. 
 § 3569. Annexed to § 3570, q. v., is a 
 schedule which shall be recognized in the 
 construction of contracts, and in all legal pro- 
 ceedings, as establishing, in terms of the 
 weights and measures now in use in the 
 United States, the equivalent of the weights 
 and measures expressed therein in terms of 
 the metric system. See Measures, French, 
 infra; Weight. 
 
 Measures, French. 
 
 The fundamental, invariable, and standard 
 measure, tiy which all weights and measures are 
 formed, is called the mitre, a word derived from 
 the Greek, which signifies measure. It is a lineal 
 
MEASURE 
 
 220 [MEASURE OF DAMAGES 
 
 measure, and is equal to 3 feet, Inches, 
 lljjjj lines, Paris measure, or 3 feet, 3 inches, 
 ^jo English. This unit is divided into ten 
 parts ; each tenth, into ten hundredths ; each 
 hundredth, into ten thousandths, etc. These di- 
 visions, 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 m4ter is the quar- 
 ter 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 mitre. All the other 
 measures are formed from the mitre, as follows : — 
 
 Measure of Capacity. 
 The litre. This is the cubic decimilre, or the 
 cube of one-tenth part of a mitre. This is divi- 
 ded by tenths, as the mitre. The measures which 
 amount to more than a single litre are counted 
 by tens, hundreds, thousands, etu. of litres. 
 
 MEAS0BES OP WEIOHTS. 
 
 The gramme. This is the weight of a cubic 
 eentimitre of distilled water at the temperature 
 of 4° above zero Centigrade. 
 
 Measbbes op Sub paces. 
 The are, used in surveying. This is a square, 
 the sides of which are of the length of ten 
 mitres, or what is equal to one hundred square 
 mitres. Its divisions are the same as in the pre- 
 ceding measures. 
 
 Measures op Solidity. 
 The atire, used in measuring fire-wood. It is 
 a cubic mitre. Its subdivisions are similar to 
 the preceding. For the measure of other things, 
 the term cube mitre, or cubic mitre, is used, or 
 the tenth, hundredth, etc. of such a cube. 
 
 Money. 
 
 The ^anc. It weighs five grammes. It is made 
 out of nine-tenths of silver, and one-te^th of 
 copper. Its tenth part is called a deeime, and its 
 jdundredth part a centime. 
 
 It has already been stated that the divisions of 
 these measures are all uniform, namely, by tens, 
 or decimal fractions ; they may, therefore, be 
 written as such. Instead of writing, 
 
 1 mitre and 1-tenth of a mitre, we may write, 
 
 1 m. 1. 
 
 2 mitres and 8-tenths, — 3 m. 8. 
 
 10 mitres and 4^hundredths, — 10 m. 04. 
 7 litres, 1-tenth, and 3-huudredths, — ^7 lit. 13, 
 
 etc. 
 Names have been given to each of these divi- 
 sions 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, centl, for hundredth, and milU, for 
 thousandth. They are thus expressed : a d^ci- 
 mitre, a decilitre, a decigramme, a djcistire, a 
 diciare, a eentimitre, a centilitre, a centigramme, 
 etc. The facility with which the divisions of the 
 unit are reduced to the same egression is very 
 apparent ; this cannot be done with any other 
 kind of measures. 
 
 ' As it may sometimes be necessary to express 
 great quantities of units, collections have been 
 liiade of them in tens, hundreds, thousands, 
 tens of thousands, etc., to which names de- 
 rived from the Greek have been given, 
 namely, deca, for tens; lucto, for hundreds; 
 ftilo, for thousands; and myria, for tens of 
 thousands; they are thus expressed: a deca- 
 
 mitre, a decalitre, etc. ; a hectomitre, a Ittcto. 
 gramme, etc.; a kilomitre, a kilogramme, etc. 
 
 The following table will facilitate the rednt- 
 tion of these weights and measures into our 
 
 own :— 
 
 The Mtre is 3.28 feet, or 39.371 In. 
 Are is 1076.441 square feet. 
 Litre is 61.028 cubic inches. 
 Utire is 35.317 cubic feet. 
 Gramme is 15.4441 grains troy, or 5,6481 
 drams avoirdupois. 
 
 MEASURE OF DAMAGES. In Prac- 
 tice. A rule or method by which the dam. 
 age sustained is to be estimated or measured ' 
 Sedgw. Dam. 29. 
 
 The defendant is to make compensation for 
 all the natural and proximate consequences of 
 his wrong, but not for secondary or remote 
 consequences. There are cases in which thia 
 principle of compensation is departed from : 
 as, where exemplary damages are awarded, 
 or double or treble damages are allowed by 
 statute. But, in general, the' law seeks to 
 give compensation. The measure of thii 
 compensation has been somewhat definitely 
 fixed, as to many classes of cases, by rules, of 
 which the following are important and well 
 established : — 
 
 Bills of Exchange. The rate of dam- 
 ages to be paid to the holder of a bill of ex- 
 change which is dishonored has been the sub- 
 ject of distinct statute regulation in nearly all 
 the states of the Union. The following, is an 
 abstract of these regulations, and is believed 
 to contain all in force at the present time :— 
 
 Alabama. Damages on inland bills of excliaiige 
 protested for non-payment or non-acceptanceAre 
 five per cent., and on foreign bills five per cent., 
 on the sum drawn for. 
 
 Damages on protest for non-payment are in 
 lieu of all charges except costs of protests in- 
 curred previous to and at the time of giving 
 notice of non-payment ; but the holder may tn 
 cover legal interest on the amount of the bill and 
 damages, from the time at which payment vat 
 demanded, and costs of protest. 
 
 The same charges are allowed on protest for 
 non-acceptance ; but interest is recoverable on 
 the amount of the bill only. If the bill be pajfe 
 able in money of the United States, these, dam- 
 ages are computed without reference to the rate 
 of exchange between this state and the place on 
 which such bill is drawn. But if payable In 
 foreign money, then the amount of the bill is to 
 be ascertained by said rate of exchange at the 
 time of demand of payment, or notice of non- 
 payment; Code, 1876, §§ 2106, 3107, 2108,2109, 
 and 2110. 
 
 Arkansas. It is provided by the Eev. Stat. 
 (1874), § 556 et seq., that every bill of exchange, 
 expressed to be for value received, drawn or ne- 
 gotiated within the state, payable after date, tfl 
 order or bearer, which shall be duly presented 
 for acceptance or payment, and protested for 
 non-acceptance or non-payment, shall be snbjBe' 
 to damages in the following cases. Mrit, if the 
 bill have been drawn on any person at any place 
 within the state, at the rate of two per cent on 
 the principal sum specified in the bill ; second, if 
 the bill shall be drawn on any person, and paya- 
 ble In Alabama, Louisiana, Mississippi, Tennes- 
 see, Kentucky, Ohio, Indiana, Illinois, or Mis- 
 souri, or at any point on the Ohio river, »t *' 
 rate of four per cent, on the principal sum; 
 
MEASURE OF DAMAGES 
 
 221 
 
 MEASURE OP DAMAGES 
 
 third, If the bill shall have been drawn on any 
 person, and payable at any other place within 
 the United States, at the rate of five per cent, on 
 the principal sum ; fourth, if the bill shall have 
 been drawn on any person, and payable at any 
 port or place beyond the United States, at the 
 rate of ten per cent, on the sum specifled in the 
 bill. 
 
 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 the state, and accepted and protested for 
 non-payment, there shall be allowed and paid to 
 the holder, by the acceptor, damages in the fol- 
 lowing cases. First, if the bill be drawn by any 
 person at any place within the state, at the rate 
 of two per cent, on the principal sum ; second, if 
 the bill be drawn at any place without the state, 
 but within the United States, at the rate of six 
 per cent, on the sum therein specifled ; third, if 
 the bill be drawn on any person at any place 
 without the United States, at the rate of ten per 
 cent, on the sum therein specified. 
 
 In addition to the damages allowed in the two 
 preceding sections to the holder of any bill of 
 exchange protested for non-payment or non-ac- 
 ceptance, he shall be entitled to costs of protest, 
 and interest at the rate of ten per cent, per an- 
 num on the amount specifled in the bill, from the 
 date of the protest until the amount of the bill 
 shall be paid. 
 
 California. The damages allowed on protest 
 for non-payment of bills drawn or negotiated 
 within the state are, — if the bill be drawn on any 
 person in the state, two per cent. ; if drawn on 
 any person in any of the United States west of 
 the Rocky Mountains, five per cent. ; if drawn 
 on any person in the United States east of the 
 Rocky Mountains, ten per cent. ; if drawn on a 
 person in any foreign country, fifteen per cent. 
 1 Civil Code (1874), § 3235. 
 
 These damages are in lieu of interest, protest 
 fees, and all other charges, up to the time of 
 notice of non-payment. But the holder is entitled 
 to recover interest on the amount of the principal 
 sum, and the damages from the time at which 
 notice of protest for non-payment was given, and 
 payment of the principal sum demanded. Id. k 
 3234. 
 
 Connecticut. When drawn on another place in 
 the United States, as follows : 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 Caro- 
 lina, Georgia, or Ohio, Illinois, Indiana, Michi- 
 gan and Kentucky, 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. Said dam- 
 ages include all interest and expenses up to notice 
 of protest. From that time the holder is entitled 
 to lawful interest on the principal sum. Said 
 sum is to be computed without reference to the 
 rate of exchange existing at time of demand and 
 notice. Gen. Stat. (1875), § 7. 
 
 When the bill Is drawn on persons out of the 
 United States, twenty per cent, is said to be the 
 amount which oug-ht reasonably to be allowed ; 
 Swift, Ex. 336 ; 2 Root, 405. There is no statu- 
 tory provision on the subject. 
 
 Delaware. The damages on bills drawn on any 
 person beyond seas and returned unpaid with 
 legal protest, are, as to all concerned, twenty 
 per cent, on the contents of the bill. Rev. Code, 
 1858, as amended, 1874, 356, § 3. 
 
 Flcrrida. Damages on foreign protested bills 
 of exchange shall be at the rate of five per cent. 
 Bush, Dig. Laws, 1872, § 99. 
 
 Georgia. On bills drawn or negotiated within 
 the state on persons out of the state but within 
 the United States, five per cent, and interest with 
 protest fee is allowed. On bills drawn on a per- 
 son out of the United States, ten per cent, dam- 
 ages, interest and protest fees. Code, 1878, §6 
 2792-279.1. 
 
 ZUinoii. On foreign bills protested for non- 
 acceptance or non-payment, legal interest on the 
 bill from the time it ought to have been paid, 
 with ten per cent, damages in addition, and 
 charges of protest. On bills drawn within the 
 United States or their territories, but out of the 
 state, the same rule applies, except that the dam- 
 ages are only five per cent. Rev. Stat. (1880) , 
 726, §§ 1-12. 
 
 Indiana. No damages are allowed on a bill 
 drawn within the state on a person within the 
 state. On a bill drawn on a person at any place 
 out of the state but within the United States five 
 per cent, damages are recoverable ; and if on a 
 person out of the United States, ten per cent. No 
 interest or charges prior to protest are allowed ; 
 but interest from date of protest may be recov- 
 ered. And no damages are recoverable of 
 drawer or indorser beyond costs of protest, if 
 the principal sum is paid on notice of protest and 
 demand. As to bills payable within the United 
 States the rate of exchange is not to be taken 
 into account. 1 Rev. Stat. (1876) 636, §§ 13, 7, 
 8, 9, 10. 
 
 Iowa. On bills drawn on a person out of the 
 United States, or in California, Oregon, Nevada, 
 or any of the territories, five per cent, damages, 
 with interest from date of protest, are allowed. 
 If drawn on a person at any other place in the 
 United States out of this state, three per cent, 
 with interest. McClain's Ann. Stat. (1880) 
 sect. 2096. 
 
 Kansas. On bills drawn on any person outside 
 the state, within or without the jurisdiction of 
 the United States, six per cent, damages and no 
 other protest damages are allowed. The holder 
 may also recover seven per cent, on the amount 
 of the bill until paid. Comp. Laws (1879), 552. 
 
 Kentiicky. On bills drawn on a person at any 
 place within the United States, no damages are 
 allowed. Bills drawn on a person out of the 
 United States, and protested for non-acceptance 
 or non-payment, bear interest at the rate of ten 
 per cent, per year from the date of protest for 
 not longer than eighteen months, unless payment 
 be sooner demanded from the party to be 
 charged. Such interest is then recoverable up 
 to the time of judgment; and the judgment 
 bears legal interest. No other damages are 
 allowed. Gen. Stat. 1873, 250, c. 22, § 10. 
 
 Louisiana. On protest for non-acceptance or 
 for non-payment of bills drawn on foreign coun- 
 tries, ten per cent, is allowed ; on bills drawn in 
 other states of the United States, five per cent. 
 Rev. Stat. 1876, tit. Bills and Pr. Notes, sect. 320. 
 
 These damages are in lieu of interest and all 
 other charges incurred previous to time of giving 
 notice of non-acceptance or non-payment ; but 
 the principal and damages bear interest thereaf- 
 ter. Id. § 331. 
 
 If the bill is drawn in United States moneys, 
 the damages are to be ascertained without any 
 reference to the rate of exchange existing be- 
 tween the state and the place on which the bUl 
 was drawn ; id. § 323 ; if in a foreign currency, then 
 the amount both of principal and damages is to be 
 estimated by the rate of exchange between the 
 place where and the place on which it was drawn 
 existing at time of demand for payment or 
 
MEASURE OF DAMAGES 
 
 222 
 
 MEASURE OF DAMAGES 
 
 notice of non-payment or non-acceptance, unless 
 the value of such foreign currency is fixed by 
 law of the United States. Id. § 334. 
 
 Maine. Damages are allowed as follows, in 
 addition to interest : On bills for flOO or more, 
 drawn, accepted, or indorsed In the state, at a 
 place seventy-five miles distant from the place 
 where drawn, one per cent. ; on bills for any sum 
 drawn, accepted, or indorsed in the state, if 
 payable in New York or in any state north of it, 
 except Maine, three per cent. ; if payable in any 
 Atlantic states south of New York and north of 
 Florida, six per cent. ; if payable in any other 
 state, nine per cent. Rev. Stat. 1871, 648, § 35. 
 As to bills drawn payable out of the United 
 States, there is 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, aud also the charges of pro- 
 test, 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 inter- 
 est upon it from the time payment of the dishon- 
 ored bill was demanded of the drawer. But 
 ..nothing has been allowed for re-exchange, 
 whether it is below or above par. Per Parsoni, 
 Ch. J., 6 Mass. 157, 161. See 6 Mass. 162. 
 
 Maryland. No damages are allowed when the 
 bill is drawn in the state on another person in 
 Maryland. 
 
 When it is drawn on any person 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. 
 Rev. Code (1878), art. xxxv., page 296, § 4. 
 
 If the biU be drawn on a foreign country, fif- 
 teen per cent, damages are allowed, and the ex- 
 pense of purchasing a new bill, as above, besides 
 Interest and costs of protest. Id. § 1. 
 
 Massach'USeUs. When a bill drawn or indorsed 
 within the state, and payable without the limits 
 of the United States (excepting places in Africa 
 beyond the Cape of Good Hope, and places in 
 Asia and the islands thereof), is protested for 
 non-acceptance or non-payment, the party liable 
 on such bill shall pay the same at the current 
 rate of exchange at the time of the demand, and 
 five per cent, damages, with interest, from date 
 of protest, in full of all damages, charges, and 
 expenses. Gen. Stat. 1860, 293, § 11. 
 
 When the bill is payable at a place in Africa 
 beyond the Cape of Good Hope, or at any place 
 in Asia or the islands thereof, the party liable 
 shall pay the same at the par value, with twenty 
 per cent., in full of all damages, interest, and 
 charges. Id. § 12. 
 
 When the bill is drawn payable without the 
 state, but within the United States, damages are 
 as follows : if payable in Maine, New Hamp- 
 shire, Vermont, Rhode Island, Connecticut, or 
 New York, two per cent. ; if in New Jersey, 
 Pennsylvania, Maryland, or Delaware, three per 
 cent. ; if in Virginia, North Carolina, South 
 Carolina, Georgia, or the District of Columbia, 
 four per cent. ; if in any other of the states or 
 territories of the United States, five per cent. 
 Id. § 13. 
 
 When the bill is payable within the state, if it 
 Is for not less than $100, and is payable at a 
 place not less than seventy-five miles distant 
 from the place where it is drawn or indorsed, two 
 per cent, damages are payable. Id. 14. 
 
 Michigan. When a bill is drawn in the state 
 
 on a person in the state, no damages are allowed. 
 
 When drawn or indorsed within the state, and 
 
 payable out of it, within the United States, if 
 
 payable within the states of Wisconsin, Illinois, 
 
 Indiana, Pennsylvania, Ohio, or New York, three 
 per cent, interest on the contents of the bill and 
 charges, are allowed ; if payable within' the 
 states of Missouri, Kentucky, Maine, New Hamp- 
 shire, Vermont, Massachusett*, Rhode Island 
 Connecticut, New Jersey, Delaware, Maryland' 
 Virginia, or the District of Columbia, five per 
 cent.; if payable elsewhere in the United 
 States, out of Michigan, ten per cent.; if pay. 
 able out of the United States, the party liable 
 shall pay the same at the current rate of 
 exchange at the time of demand together with 
 four per cent, on the principal and interest 
 thereon from date of protest, said damages to be 
 in full of all damages, charges, and expenses 
 1 Comp. Laws, 408, ch. 81, §§ 8, 9. 
 
 Minnesota. When a bill payable out of the 
 United States is protested for non-acceptance or 
 non-payment, the party liable shall pay the bill 
 at the current rate of exchange at the time of 
 demand, and ten percent, damages, with interest 
 from day of protest, in full of all damages 
 charges, and expenses. Stat, at Large, 1873, 7m' 
 §7. ' 
 
 When the bill is drawn on a person out of 
 Minnesota, but within the United States, the 
 party shall pay the bill, with interest, and 6n 
 per cent, damages, together with costs and 
 charges of protest. Id. § 8. 
 
 Mississippi. Bills drawn on a person out of 
 the state, but within the United States, drawfive 
 per cent, damages, and interest on the principal ; 
 bills payable out of the United States, ten per 
 cent., besides interest. In all cases the holder is 
 entitled to all costs and charges. No damages 
 allowed on domestic bills. Rev. Code 1871, 8 
 2331. 
 
 Missouri. On bills drawn on a person within 
 the state, the damages are four per cent. ; when 
 on a person in another state or territory of the 
 United States, ten per cent. ; when on a person 
 out of the United States, twenty per cent. But 
 where a bill payable within the state is paid with- 
 in twenty days of demand or notice of dishonor, 
 no damages are recoverable thereon. Id. § 543. 
 
 Damages so awarded are in lieu of all other 
 charges and expenses. Id. § 544. If the bill be 
 drawii payable in a foreign country, the amount 
 thereof and damages are to be estimated by the 
 rate of exchange between the place where one 
 bill is drawn and on which it is drawn at the time 
 of payment, but if payable in money of the 
 United States no such rate is to be taken into 
 account. Id. §§ 545-546. Rev. Stat. 1879, §§ 
 539-540. 
 
 Nebraska. On bills drawn on a person withinthe 
 United States and without the state, six percent. 
 On bills drawn On persons without the United 
 States, twelve per cent. Gen. Stat. 1873, c. 32, § 7. 
 
 New York. Upon bills drawn or negotiated 
 within the state upon any person at any place 
 within the six states east of New York,orinNe¥ 
 Jersey, Pennsylvania, Ohio, Delaware, Maryland, 
 Virginia, or the District of Columbia, the dam- 
 ages are three per cent. If drawn upon a per- 
 son at a place within North.or South CarolmHi 
 Georgia, Kentucky, or Tennessee, five per cent. 
 If upon any person in any other state or teni- 
 tory 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 posses- 
 sions in the West Indies, or elsewhere in the 
 western Atlantic ocean, or in Europe, ten per 
 cent. These damages are in lieu of interest, 
 charges of protest, and all other charges in- 
 curred previous to, and at the time of, gi™? 
 notice of non-acceptance or non-payment. But 
 the holder is entitled to interest upon the aggre- 
 gate amount of the principal sum and damagf 
 
MEASURE OF DAMAGES 
 
 223 
 
 MEASURE OF DAMAGES 
 
 from time of notice of the protest. If tlie con- 
 tents of tlie bill are expressed in the money of 
 the United States, the amount due and the dam- 
 ages for non-payment are to be ascertained and 
 determined without reference to the rate of ex- 
 change existing between New York and the 
 place on which the bill is drawn. But if in the 
 currency of any foreign country, then the 
 amount due, exclueiTe of the damages, is to be 
 ascertained by the rate of exchange, or the value 
 of such foreign currency, at the time of the 
 demand of payment. 2 Rev. Stat. (1875) , 1162, 
 §§18, 19, 20, 21, and 23. 
 
 These damages are only recoverable by a 
 holder who has purchased the bill or some in- 
 terest therein for a valuable consideration. Id. 
 71, § 23. 
 
 North OaroUna. On bills drawn on a person 
 in any other state or territory of the United 
 States, three per cent, damages are allowed ; 
 if drawn on any other place in North America, 
 except the northwest coast, or on any of the 
 West India or Bahama Islands, ten per cent. ; if 
 on the island of Madeira, the Canary Islands, 
 the Azores, the Cape Verde Islands, or In any 
 other state or place in Europe, or in South 
 America, fifteen per cent. ; if on any other part 
 of the world, twenty per cent. In all cases, in- 
 terest is recoverable from maturity of the bill. 
 Battle's Rev. 1873, 103, § 8. 
 
 Ohio. Damages on protested bills of exchange 
 drawn by any person or corporation within the 
 state are not recoverable on any contract entered 
 into after the passage of the act of April 4, 1859. 
 Stat. 1859, 153. 
 
 Oregon. On bills drawn payable out of the 
 United States, and protested for non-acceptance 
 or non-payment, the party liable shall pay the 
 same at the current rate of exchange at the time 
 of demand, and damages at the rate of ten per 
 cent, with interest on the contents of the bill 
 from the date of protest ; the amount of con- 
 tents, damages, and interest to be in full of all 
 damages, charges, and expenses. Gen. Laws 
 1872, 718, § 8. 
 
 On bills drawn within the United States but 
 out of Oregon, the drawer or indorser shall pay 
 the bill with legal interest according to its tenor, 
 and five per cent, damages, with costs and 
 charges of protest. Id. § 9. 
 
 Fennsylvania. The following damages are 
 allowed on protest of a bill of exchange for non- 
 payment. They are in lieu of interest and all 
 other charges, except charges of protest, to the 
 time when notice of protest is given and demand 
 of payment made, but are in addition to the 
 charges of protest and interest on the amount of 
 principal, damages, and charges from the time 
 of such notice and demand. If the bill is drawn 
 on a person in any place in the United States or 
 the territories, except California (Upper or 
 Lower) , New Mexico, and Oregon, Ave per cent. ; 
 if upon Upper and Lower California, New Mex- 
 ico, or Oregon, ten per cent. ; if upon China, 
 India, or other parts of Asia, Africa, or Islands 
 in the Pacific Ocean, 20 per cent. ; If upon 
 Mexico, the Spanish Main, West Indies, orother 
 Atlantic islands, east coast of South America, 
 Great Britain, or other places in Europe, ten per 
 cent. ; if upon the west coast of South America, 
 15 per cent. ; if upon any other part of the world, 
 ten per cent. Act May 13, 1850, § 6 (P. L. 746) , 
 1 Purd. Dig., tit. Bills of Exch. p. 158, pi. 1. 
 
 The amount of the bill and damages are ascer- 
 tained by the rate of exchange or value of the 
 currency mentioned in the bill at the time of 
 notice of protest and demand of payment. 
 Act March 30, 1881, § 2, 7 Sm. L. 435 ; Purd. 
 Dig. 159, pi. 2. 
 
 Bhode Island, On foreign bills drawn or in- 
 dorsed 'within the state and returned from any 
 place without the United States, protested for 
 non-acceptance or non-payment, the damages are 
 ten per cent, and charges of protest, and the 
 bill carries interest at six per cent, from date of 
 protest. The same rule applies to inland bills, 
 except that the damages are five per cent. only. 
 Gen. Stat. 1872, c. 129, sec. 1, 3. 
 
 South Carolina. On bills drawn on persons 
 out of the state and resident in the United 
 States, ten per cent. On bills drawn on persons 
 resident elsewhere in North America, or in any 
 of the West India Islands twelve and a half per 
 cent. On all bills drawn on persons in another 
 part of the world, 15 per cent. The holder is 
 also entitled to recover all charges incidental 
 thereto. Rev. Stat. 1873, 331, sect. 19. 
 
 Tennessee. On bills payable out of the state 
 and protested for non-payment, damages in ad- 
 dition to interest and charges of protest are re- 
 coverable as follows : if the bill was drawn on a 
 person in any of the states (except Tennessee) 
 or territories of the United States, three per 
 cent. ; if on any other state or place in North 
 America, bordering upon the Gulf of Mexico, 
 or in any of the '^^st India Islands, fifteen per 
 cent. ; If on any other part of the world, twenty 
 per cent. See 3 Sneed, 140 ; Stat. 1871, § 1963. 
 The damages are in lieu of interest and all 
 other charges expept those of protest to the time 
 when notice of protest and demand shall have 
 been given, but interest shall be computed from 
 that time on the principal, together with the 
 damages and charges of protest. Id. § 1064. 
 
 Teseas. The holder of any protested draft or 
 bill of exchange drawn within the state and pay- 
 able beyond the limits of it, may recover ten per 
 cent, as damages, with interest and costs of 
 suit. But this provision shall not be construed 
 to embrace drafts drawn by persons other than 
 merchants upon their agents or factors. Laws 
 1870, p. 1.51, art. 336, Act of Dec. 24, 1851 ; 12 
 Laws, 23. 
 
 Virginia. When a bill of exchange drawn or 
 indorsed within this state is protested for non- 
 acceptance or non-payment, there shall be paid 
 by the party liable for the principal of such bill, 
 in addition to what else he Is liable for, damages 
 upon the principal at the rate of three per cent, 
 if the bill be payable out of Virginia and "within 
 the United States ; at the rate of ten per cent, if 
 the bill be payable without the United States. 
 Code 1873, 98, § 9. 
 
 Wisconsin. On bills drawn payable without 
 the United States, damages are allowed at the 
 rate of five per cent., with Interest on the con- 
 tents of the bill from the date of protest. These 
 damages and interest are in full of all damages, 
 charges, and expenses. On bills drawn payable 
 out of the state and in any state or territory of 
 the United States, damages at the rate of five 
 per cent, are allowed, with interest on the bill 
 according to its tenor, and costs and charges of 
 protest. Rev. Stat. 1878, §§ 1788, 1683. 
 
 Carriers. Upon a total failure to deliver 
 goods, the carrier is liable for the value of the 
 goods at their place of destination, with in- 
 terest from the time they should have been de- 
 livered, deducting the freight; 12 S. & R. 
 186; 8 Johns. 213; 14 id. 170; 15 id. 24; 
 14 111. 146 ; 24 N. H. 297 ; 1 Cal, 108 ; 10 
 La. An. 412; 9 Rich. So. C. 465; 17 Mass. 
 62; 46 N. Y. 462; 74 111. 249; 28 Ohio 
 St. 358; 87 111. 19.5; 64 Mo. 47; 27 Wise. 
 327 ; 3 Mo. App. 27 ; 98 Mass. 550 ; 41 Miss. 
 671 ; 26 Ga. 122 ; 13 Md. 164. Uponafailure 
 
MEASURE OF DAMAGES 
 
 224 
 
 MEASURE OF DAMAGES 
 
 to take the goods at all for transportation, he 
 is liable for the difference between the value 
 at the place of shipment and at the place of 
 destination, less his freight; or, if another 
 conveyance can be found, the difference be- 
 tween the freijrht agreed on with defendant, 
 and the sum (if greater) which the shipper 
 would be compelled to pay another carrier ; 10 
 Watts, 418; 4 N. Y. 340; 1 Abb. Adm. 
 119 ; 58 Barb. 216 ; 66 Penn. 231 ; 34 Mich. 
 439. Upon a delay to deliver the goods, 
 the plaintiff is entitled to an indemnity^ for 
 his loss incurred by the delay, taking into 
 account any fall in the market occurring be- 
 tween the time when the property should have 
 been delivered by the carrier and the time 
 when it actually was ; 12 N. Y. 509 ; 22 Barb. 
 278; 36 N. H. 390; 54 111. 68; 1 Disney, 
 23; 64 111. 143; 20 Wise. 694; 106 Mass. 
 468 ; 48 N. H. 455 ; 47 N. Y. 29 ; 14 Mich. 
 489 ; 49 Vt. 255. 
 
 Collision. The general principle followed 
 by the courts of admiralty in eases of collision 
 between vessels is that the damages awarded 
 against the offending vessel must be sufficient 
 to restore the other to the condition she was 
 in at the time of the collision, if restoration 
 is practicable. Both damages to vessel and 
 cargo are to be made good. But hypotheti- 
 cal and consequential damages are excluded. 
 The loss of the use of the injured vessel while 
 undergoing repairs is proper to be included. 
 If the injured vessel is a total loss, her market 
 value at the time is the measure of damages. 
 Consult Abbott, Pr. 386 ; 01c. 188, 246, 388 ; 
 444, 506; 13 How. 106; 17 id. 170; 2 Wall. 
 Jr. 62 ; 6 McLean, 238. If the fault is equal 
 on the part of both vessels, the loss is to be 
 divided between them ; 1 Sprague, 128 ; Abb. 
 Adm. 233 ; 6 McLean, 221 ; 14 Wall. 346 ; 
 21 Wall. 389. 
 
 Contracts for Personalty. The cardinal 
 principles governing all these cases are (1) ac- 
 tual compensation will only be given for actual 
 loss. (2) The contract itself furnishes the 
 measure of damages. The complications of 
 business render it impracticable here to insert 
 even an abstract of the decisions on this very 
 important branch of the law. For full and 
 accurate details, the reader is referred to 
 Sedgw. Dam. 199, etc. 
 
 Contracts for Land. Where a vendor of 
 real property fails to convey according to his 
 contract, a distinction is taken, in many of the 
 cases, growing out of the motive of the party 
 in default. If he acted in good faith and 
 supposed he had good title and could con- 
 vey, the purchaser's damages have been lim- 
 ited to the amount of his advance, if any, 
 interest, and expenses incurred examining the 
 title; 2 W. Blackst. 1078; 10 B. & C.'416; 
 8 C. B. 133 ; 2 Wend. 899 ; 4 Denio, 546 ; 
 6 Barb. 646; 2 Bibb, 415; 9 Md. 250; 11 
 Penn. 127; 69 N. Y. 201; 40 N. Y. 60; 2 
 Bibb, 415 ; 72 Penn. 160. But in some courts 
 the rule is the reverse, and the purchaser is 
 held to be entitled to the difference between 
 the amount he has agreed to pay and the price 
 
 at time of breach; 65 Me. 87; 113 Mass 
 538; 37 Iowa, 134; 6 Wheat. 109; 3 Gray" 
 557 ; 29 La. An. 286. But in case of a wil! 
 ful or fraudulent refusal to convey, the pu^ 
 chaser has been held entitled to the value 
 of the land, with interest ; 6 B. & C. 31 • 
 
 1 Exch. 850; 6 Wheat. 109; 2 Bibb 4o' 
 434; 9 Leigh, 111. See 21 Me. 484 ■ 21 
 Vt. 77; 1 Iowa, 26; 9 Ala. n. 8. 252- 19 
 id. 184; 1 Gill & J. 440; 11 Ired. 99 j 14 
 B. Monr. 364 ; 35 Penn. 23 ; 67 Penn. 126- 
 
 2 Wend. 399. ' 
 When the purchaser refuses to perform, the 
 
 measure has been held, in England, to be the 
 difference between the price fixed in the con- 
 tract and the value of the land at the time 
 fixed for the delivery «f the deed ; 7 M, & 
 W. 474. But the rule does not appear to be 
 well settled in this country. The English 
 rule has been adopted in New Hampsl^ire, '51 
 N. H. 107; Massachusetts, 101 Mass. 409; 
 Pennsylvania, 67 Penn. 126; and Ohio, 22 
 Ohio St. 172; in iVew York, Maine, Ver- 
 mont, and other states, the question seems 
 undecided ; 5 Cow. 306 ; 4 Greenl. 258 ; 21 
 Wend. 457 ; 18 Vt. 27. 
 
 Eviction. The damages recoverable for 
 an eviction, in an action for breach of cove- 
 nants of seisin and warranty in a deed, are 
 the consideration-money, interest thereoDj and 
 the costs, if any, of defending the eviction, 
 in Arkansas, 1 Ark. 323 ; Georgia, 17 Ga, 
 602 ; 24 Ga. 533 ; Illinois, 2 111. 310 ; 41 
 111. 413; Indiana, 2 Blackf. 147; 58 Ind. 
 392 ; Kentucky, 4 Dana, 258 ; Mississippi, 
 31 Miss. 433; Missouri, 1 Mo. 652; 19 id. 
 436 ; 23 Mo. 437 ; North Carolina, 2 Dev. 
 30 ; 76 N. C. 35 ; A^ea! Hampshire, 25 N. 
 H. 229 ; 80 id. 531 ; New Jersey, 4 Halst. 
 139; New York, 4 Johns. 1 ; is' id. 50; 13 
 Barb. 267 ; 69 N. Y. 434 ; Ohio, S Ohio, 
 211 ; see 8 id. 49 ; 10 id. 31 7 ; Pennsylvamt, 
 4 Dall. 441; 12 Penn. 872; 27 id. 2gife 
 South Carolina, 1 McCord, 585; 2irf. 413; 
 Tennessee, 2 Wheat. 64; 8 Humphr. 647; 
 Virginia, 2 Rand. 132 ; 2 Leigh, 461 ; 11 id. 
 261; Texas, 44 Tex. 400; Iowa, 6 Iowa, 
 287 ; 44 Iowa, 249 ; California, 33 Gal. 299; 
 while in Connecticut, 14 Conn. 245; Louisi- 
 ana, 13 La. 143 ; Maine, 12 Me. 1 ; 66 Me/ 
 667; Massachusetts, 119 Mass. 500; 108 
 Mass. 270; and Vermont, 12 Vt. 481; 30 Vt. 
 242, it is the value of the land at the time of 
 eviction, together with the expenses of the 
 suit, etc. See 2 Greenl. Ev. § 264; 4 Kent, 
 474. 
 
 Incumbrances. On a breach of a cove- 
 nant in a deed against incumbrances, the pur- 
 chaser is entitled to recover his expenses in- 
 curred in extinguishing the incumbrance; 22 
 Pick. 490 ; 1 Duer, 3191 ; 7 Johns. 858 ; 13 
 id. 105; 16 id. 122; 34 Me. 422; 4 Ind. 
 130; 109 Mass. 299; 7 R. L 638; 61 K. 
 373 ; 47 Mo. 157 ; 20 N. Y. 191 ; 41 Iowa, 
 204 ; 48 N. Y. 632 ; 59 Mo. 488. 
 
 Patents. When the plaintiff has songht 
 his profit in the form of^a royalty paid by 
 licenses, and there are no peculiar circuni- 
 
MEDIATE POWERS 
 
 225 
 
 MEDICAL EVIDENCE 
 
 stances in the case, the amount to be recov- 
 ered will be regulated by that standard. If 
 that test cannot be applied, he will be entitled 
 to an amount which will compensate him for 
 hisinjury ; 17 Wall. 462. Damages can now 
 be recovered in equity ; R. S. §4921. Even 
 though the infringer, by his improvidence, 
 made no profit; 97 U. S. 348. In an action 
 at law, the court may treble the damages ; 
 93 U. S. 64. See full article in ] 3 Am. L. 
 Rev. 1. 
 
 Sales. Where the seller of chattels fails 
 to perform his agreement, the measure ot 
 damages is the difference between the con- 
 tract-price and the market- value of the article 
 at the time and place fixed for delivery ; 5 
 K. Y. 637; 12 id. 41 ; 3 Mich. 55; 4 Tex. 
 289; 12 111. 184; 3 Wheat. 200; 44 Me. 
 255; 6 McLean, 102; 41 Miss. 368; 24 
 Wend. 322; 3 Col. 373; 48 Penn. 407; 33 
 Vt. 92'; 52 Barb. 427. The same rule ap- 
 plies as to the deficiency where there is a 
 part-delivery only; 16 Q. B. 941 ; 23 How. 
 149 ; 41 N. H. 86 ; 6 Whart. 299 ; 51 Penn. 
 175; 21 Pick. 378; 12 Wis. 276; 5 Hill, 
 472; 2 Minn. 229. Where, however, the 
 purchaser has paid the price in advance, some 
 of the cases, particularly in England and New 
 York, allow the highest market-price up to 
 the time of the trial ; 27 Barb. 424 ; 26 Penn. 
 143 ; 13 Tex. 324. Where the purchaser re- 
 fuses to take and pay for the goods, the seller 
 may sell them fairly, and charge the buyer 
 with the difference between the contract- price 
 and the best market-price obtainable within 
 a reasonable time after the refusal : 45 111. 
 79; 5 S. & R. 19; 30 N. Y. 549; 3 Mete. 
 (Ky.) 555; 9 B. Mon. 69. Where the 
 goods are delivered and received, but do not 
 correspond in quality with a warranty given, 
 the vendee may recover the difference be- 
 tween the value of the goods delivered and 
 the value they would have had if they had cor- 
 responded with the contract ; 4 Gray, 457 ; 5 
 Harr. 233 ; 26 Ga. 704 ; 21 111. 180 ; 29 Md. 
 142; 39 Me. 287; 14 N. Y. 597; 29 Ala. 
 568 ; 20 111. 184. The above are merely ex- 
 amples of a most important branch of the 
 law. See generally Sedgwick, Mayne, Dam- 
 ages. 
 
 MEDIATE FOAVERS. Those incident 
 to primaT}' 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 re- 
 quired to settle amounts, adjust disputed 
 claims, resist those which are unjust, and 
 answer and defend suits : these subordinate 
 .powers are sometimes called mediate powers. 
 Story, Ag. § 58. See 1 Campb. 43, note ; 4 
 id. 163 ; 6 S. & R. 149. 
 
 MEDICAL EVIDENCE. Testimony 
 given by pliysicians or surgeons in their pro- 
 fessional capacity as experts, or derived from 
 the statements of writers of medical or surgi- 
 cal works. 
 
 Vol. II.— 15 
 
 This kind of evidence was first recognized by 
 Charles V. of Germany, and incorporated in the 
 "Caroline Code," framed at Eatisbon in 1532, 
 wherein it was ordained that the opinion of 
 medical men^ — at first surgeons only — should be 
 received in cases of death by violent or unnatural 
 means, when suspicion existed of a criminal 
 agency. The publication of this code encour- 
 aged the members of the medical profession to 
 renewed activity, tending greatly to advance 
 their science and the cause of justice generally. 
 Many books soon appeared ou the subject of 
 medical jurisprudence, and the importance of 
 medical evidence was more fully understood. 
 Elwell, Malp. & Med. Ev. 885. 
 
 The evidence of the medical witness is 
 strictly that of an expert ; Elwell, Malp. & 
 Med. Ev. 275; 10 How. Pr. 289; 2 Conn. 
 514; 1 Chandl. Wise. 178 ; 2 Ohio, 452; 27 
 N. H. 157; 17 Wend. 136; 7 Cush. 219; 1 
 Phill. Ev. 780 ; 1 Whart. Ev. § 441. 
 
 The professional witness should not be permit* 
 ted to make up an opinion to be given in evidence 
 from what other witnesses say of the facts in the 
 case ; because under such circumstances he takes 
 the place of the jury as to the credibility of the 
 witness, and in that case he also determines what 
 part of the testimony of other witnesses properly 
 applies to the case, — a duty that belongs to the 
 court. In the case of Rogers, 7 Mete. 505, C. J. 
 Shaw presiding, the court held that the proper 
 question to be put to the professional witness 
 was : " If the symptoms and indications testified 
 to by other witnesses are proved, and if the jury 
 are satisfied of the truth of them, whether in his 
 [the witness's] opinion the party was insane, and 
 what the nature and character of that insanity ; 
 and what state did they indicate, and what he 
 would expect would be the conduct of such a 
 person in any supposed circumstance." Under 
 this ruling the medical witness passes upon the 
 condition of the person whose condition is at 
 issue. To do it correctly, he must hear all the 
 evidence that the jury hears; he must judge as 
 to the relevance of the evidence of others, and 
 make an application of the facts that legally and 
 properly bear upon the case to it, and reject all 
 others ; in short, he is Judge and jury iu the case. 
 Since the trial of Rogers, a diflferent rule has 
 been adopted by the courts in Massachusetts. 
 In the case of the United States vt. McGlue, re- 
 ported in 1 Curt., Mr. Justice Curtis instructed 
 the jury that medical experts " were not allowed 
 to give opinions in the case. It is not the pro- 
 vince of the expert to draw inferences of fact 
 from the evidence, but simply to disclose his 
 opinion on a known or hypothetical state of 
 facts ; and, therefore, the counsel on each side 
 have put to the physicians such states of fact as 
 they deem warranted by the evidence, and have 
 taken their opinions thereon. If you consider 
 any of these states of fact put to the medical 
 witness are proved, then the opinions thereon are 
 admissible to be weighed by you ; otherwise 
 their opinions are not applicable to the case." 
 See 127 Mass. 414. In the McNaughten Case, 10 
 CI. & F. 210, the twelve judges held in the same 
 way. The attention of the witness being called 
 to a definite state of facts constituting a hypo- 
 thetical case, his opinion is unembarrassed by 
 any collateral questions or considerations, and 
 the jury, under the instructions of the court, de- 
 termines how far the facts sustain the hypotheti- 
 cal case, and, consequently, how far the opinion 
 of the witness applies to the case under investi- 
 gation. See Elwell, Malp. & Med. Et. 811. 
 
MEDICAL EVIDENCE 
 
 226 MEDICAL JURISPEUDENCE 
 
 The medical witness is not a privileged wii^ 
 ness. A difference of opinion has existed among 
 medico-legal writers, and perhaps still exists. 
 Fonblanque, a distinguished English barrister, 
 holds that when the ends of justice absolutely 
 require the disclosure, a medical witness is not 
 only bound but compellable to give evidence on 
 all matters that' will enlighten the case ; and in 
 the important case of the Duchess of Kingston, 
 Lord Mansfield said, "In a court of justice 
 medical men are bound to divulge secrets when 
 required to do so. If a medical man was volun- 
 tarily to reveal these secrets, to be sure he would 
 be guilty of a breach of honor and of great in- 
 discretion ; but to give that information, which, 
 by the law of the land, he is bound to do, will 
 never be imputed to him as any indiscretion 
 whatever." In this case Sir C. Hawkins, who 
 had attended the duchess as medical man, was 
 compelled to disclose what had been committed 
 to him in confidence. While this is the common- 
 law rule, the states of New York, Missouri, Wis- 
 consin, Iowa, Indiana, Michigan, and perhaps 
 some others, have enacted statutory provisions 
 relieving the physician from the obligation of the 
 common-law rule to reveal professional secrets. 
 The language used in the statutes generally is, 
 " No person duly authorized to practise physic 
 or surgery shall be allowed to disclose any infor- 
 mation which he may have acquired in attending 
 a patient in a professional character, and which 
 information was necessary to enable him to pre- 
 scribe for such patient as a physician, or to do 
 any act for him as a surgeon." Under this stat- 
 ute, in New York it has been held that when a 
 physician was consulted by the defendant in an 
 action on the case for seduction, as to the means 
 of producing abortion, he cannot claim the pro- 
 tection of the statute, not being privileged ; 21 
 Wend. 79 ; Elwell, Malp. & Med. Ev. 320. The 
 privilege of the statute may be waived by the 
 patient ; 14 Wend. 637 ; but it does not apply to 
 testamentary inquiries ; 1 Bradf. Surr. 221 ; 1 
 Whart. Ev. § 606. See Confidentiai, Commu- 
 nications. 
 
 Medical books are not received in evidence. 
 They are subject to the same rule that applies to 
 scientific and other professional books. Even 
 the elementary works on law are not admissible 
 in evidence as to what the law is ; 5 C. & P. 73 ; 
 2 C. & K. 270. An expert may cite authorities 
 as agreeing with him, and may refresh his 
 memory by referring to standard works in his 
 specialty ; 40 Ind. 516 ; but such extracts from 
 books are not primary proof ; 117 Mass. 122 ; and 
 when an expert cites certain works as authority, 
 they may be put in evidence against him; 30 
 Wis. 614. But books of exact science, if duly 
 sworn to by their authors, or shown to be au- 
 thoritative by those dealing in business with the 
 particulai; subject, are the best evidence; 1 
 Whart. Ev. § 667. See Books op Sciknoe. 
 In the case of Commonwealth vs. Wilson, 1 
 Gray, 338, SJiaw, C. J., said, " Facts or opinions 
 on the subject of insanity, as on any other sub- 
 iect, cannot be laid before the jury except by the 
 testimony under oath of persons skilled in such 
 matter. Whether stated in the language of the 
 court or of the counsel in a former case, or cited 
 from works of legal or medical writers, they are 
 still statements of facts, and must be proved on 
 oath. The opinion of a lawyer on such a ques- 
 tion of fact is entitled to no more weight than 
 that of any other person not an expert. The 
 principles governing the admissibility of such 
 evidence have been fully considered by this court 
 since the trial of Rogers ; and the more recent 
 l!.ngli6h authorities are against the admission of 
 
 such evidence." 6 C. & P. 586 ; Elwell Main 
 & Med. Ev. 332; 49 N. H. 120; bniKj; 
 case it was held that common observers havin? 
 special opportunities for observation, may testllf 
 as to their opinions as conclusions of fact al 
 though they are not experts, where the facts'are 
 such as men in general are capable of understand 
 ing ; 117 Mass. 122 ; and in Pennsylvania, after 
 a non-professional witness has stated the facts 
 upon which his opinion is founded, he is permit- 
 ted to state his opinion as to the sanitv of a t*. 
 tator ; 68 Penn. 342. j a wa- 
 
 MEDICAL JURISPRUDENCE. That 
 science which applies the principles andprac- 
 tiee of medicine to the elucidation and settle. 
 ment of doubtful questions which arise in 
 courts of law. 
 
 These questions are properly embraced in 
 five different classes : — 
 
 The Jirst includes questions arising ont of 
 the relations of sex : as, impotence and steril- 
 ity, hermaphroditism, rape, pregnancy, legit, 
 imacy, delivery. 
 
 The second, injuries inflicted upon, the liv- 
 ing organization: as, infanticide, wounds, 
 poisons, persons found dead. 
 
 The third, those arising out of disqualify, 
 ing diseases : as, the diil'erent forms of men- 
 talalienation. 
 
 The fourth, those arising ont of deceptive 
 practices : as, feigned diseases. 
 _ The ^/th is made up of miscellaneous ques- 
 tions: as, age, identity, presumption of senior, 
 ship, life assurance, and medical evidence. 
 
 Independent of works on several of the 
 particular subjects above mentioned, the fol- 
 lowing are those, English and American, 
 which can be the most profitably consulted :— 
 
 Male's Medical Jurisprudence, 1 vol. 
 
 Smith, Dr. John Gordon, Principles of Foreneie 
 
 Medicine, 1 vol. 
 Paris & Fonblanque's Medical Jurisprudence, 8 
 
 vols. 
 Chltty's Medical Jurisprudence, 1 vol. 
 Ryan's Medical Jurisprudence, 1 vol. 
 Taylor's Medical Jurisprudence, 1 vol. 
 Guy's Principles of Forensic Medicine, 1 vol. 
 Dean's Principles of Medical Jurisprudence. 
 Beck's Elements of Medical Jurisprudence, 2 
 
 vols. 
 Wharton & Still^'s Medical Jurisprudence, 2 vols. 
 Ray's Medical Jurisprudence of Insanity, 1 to). 
 Elwell's Malpractice and Medical Evidence. < 
 
 To which may be added : — 
 Casper's Medical Jurisprudence. 
 Cheever's Medical Jurisprudence of India. 
 Husband's Forensic Medicine. 
 Journal of Medical Jurisprudence. 
 Ogston's Medical Jurisprudence. 
 Ordronaux's Medical Jurisprudence. 
 Medico-Legal Society Papers. 
 Reese's Toxicology. 
 
 Watson's Medical Jurisprudence of Homicide. 
 Woodman & Tidy's Forensic Medicine. 
 
 The French writers are numerous : Briand, 
 Biessy, Esquirol, Georget, Falret, Trebuchet, 
 Marc, and others, have written treatises or pub- 
 lished papers on this subject ; the learaed Foden 
 published a work entitled "Les Lois eclairfes par 
 les Sciences physiques, ou Trait^ de Miiedne 
 legale et d'HygiSne publique;" the "Annale 
 d'HygiJne et de M^decine llgale" is one of the 
 most valued works on this subject. Among the 
 
MEDIATORS OF QUESTIONS 227 
 
 MEMORANDUM 
 
 Germans may be found Rose's Manual on Med- 
 ico-Legal Dissection, Metzger's Principles of Le- 
 gal Medicine, and others. The reader Is referred 
 for a list of authors and their works on Medical 
 Jurisprudence to Dupin, Profession d'Avocat, 
 torn. 11. p. 343, art. 1617 to 1636 bis. For a his- 
 tory of the rise and progress of Medical Juris- 
 prudence, see Traill, Med. Jur. 13. 
 
 MEDIATORS OP QUESTIONS. Six 
 persons authorized, under statute in the reign 
 of Edw. III., to certify and settle, before the 
 mayor and officers of the staple, questions 
 arising amons merchants, relating to the wool 
 trade. Toml. (Staple.) 
 
 MEDICINE-CHEST. A box containing 
 an assortment of medicines. 
 
 Statutory provisions in the United States 
 require all vessels above a certain size to keep 
 a medicine-chest. 1 Story, U. S. Laws, 106 ; 
 iid. 971. 
 
 MEDIETAS LING'U.a: (Lat. half- 
 tongue). A terra denoting that a jury is to 
 be composed of persons one-half of whom 
 speak the English and one-half a foreign lan- 
 guage. See Jury. 
 
 MEDITATIO PUG.ai. In Scotch Law. 
 If a creditor apprehends that his debtor is 
 about to fly the country, he may appear be- 
 fore a judM and swear that he believes his 
 debtor to be in medilatione fugce, when a 
 warrant imprisoning him will be granted, 
 which, howevei:, is taken off on the debtor's 
 finding caution, i. e. surety. Bell, Moz. & W. 
 
 MEETINGS. A distinction is made be- 
 tween general stated meetings of a corporation 
 and special meetings. The former occur at 
 stated times usually fixed by the constitution 
 and by-laws ; the latter are called for special 
 purposes or business; see 11 Vt. 385. Gen- 
 erally speaking, every member of a corpora- 
 tion has a right to be present at every meeting 
 thereof, and to be notified of the meeting, in 
 some way; 22 N. Y. 128; 2 H. L. C. 789. 
 An omission to give the required notice will 
 generally, though it be accidental, invalidate 
 the proceedings ; 7 B. & C. 695. • When all 
 who are entitled to be present at a meeting 
 are present, whether notice has been given or 
 not, and no objection is made on account of 
 the want of formalities, there is a waiver of 
 the want of notice ; 11 Wend. 604; 7 Ind. 
 647 ; but if any one member is absent or re- 
 fuses to give his consent, the proceedings are 
 invalidated; 14 Gray, 440. Notice should 
 be personal; 7 Conn. 214; in writing, and 
 signed by the proper person ; 23 N. J. Eq. 216; 
 should state the time and place of meeting, 
 and, if a special meeting, the business to be 
 transacted; 14 Gray, 440; L. R. 2 Ch. 191. 
 Ordinarily, notice of stated meetings is not re- 
 quired ; 22 N. Y. 128. 
 
 All proceedings carried on by the members 
 of a corporation, while sitting outside of the 
 state which created it, are void ; 45 Ga. 34 ; 
 38 Me. 343 ; but this rule does not apply to 
 the meetings of the directors of a corporation ; 
 27 Ohio St. 343 ; 63 Barb. 415; and a cor- 
 poration created by the laws of two states, 
 
 may hold its meetings and transact its business 
 in either state ; 31 Ohio St. 317. 
 
 MELANCHOLIA. In Medical Juris- 
 prudence. A name given by the ancients to 
 a species of partial intellectual mania, now 
 more generally known by the name of mono- 
 mania. It bore this name because it was 
 supposed to be always attended by dejection 
 of mind and gloomy ideas. See Mania. 
 
 MELIORATIONS. In Scotch Law. 
 Improvements .of an estate, other than mere 
 repairs ; betterments. 1 Bell, Com. 73. 
 
 MELIUS INQUIRENDUM VEL IN- 
 QUIRENDO. In Old English Practice. 
 A writ which in certain cases issued after an 
 imperfect inquisition returned on a capias 
 utligatum in outlawry. This melius inqui- 
 rendum commanded the sheriff to summon 
 another inquest in order that the value, etc. 
 of lands, etc, might be better or more cor- 
 rectly ascertained. 
 
 MEMBER. A limb of the body useful 
 in self-defence. Membrum est pars corporis 
 habens destinatam operationem in corpore. 
 Co. Litt. 126 a. 
 
 An individual who belongs to a firm, part- 
 nership, company, or corporation. See Cor- 
 poration ; Partnership. 
 
 One who belongs to a legislative body, or 
 other branch of the government ; as, a mem- 
 ber of the house of representatives ; a mem- 
 ber of the court. 
 
 A child living with the father does not 
 necessarily cease to be a member of his fam- 
 ily on reaching his majority ; 79 III. 584. A 
 statutory provision that all the members of a 
 company shall, in certain cases, be liable, is 
 not confined to such as were members when 
 the debts were contracted ; 12 Mete. 3. 
 
 MEAIBER OF CONGRESS. A mem- 
 ber of the senate or house of representatives 
 of the United States. 
 
 MEMBERS. In 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 Chitty, Com. Law, 726. 
 
 MEMBRANA (Lat.). In Civil and 
 Old English Law. Parchment ; a skin of 
 parchment. Vocab. Jur. Utr.; Du Cange. 
 The English rolls were composed of several 
 skins, sometimes as many as forty-seven. 
 Hale, Hist. Comm. Law, 17. 
 
 MEMORANDUM (Lat. from memorare, 
 to remember). An informal instrument re- 
 cording 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, "Memo- 
 randum, that it is agreed ;" or it is headed 
 with the words. Be it remembered that, etc. 
 The term memorandum is also applied to the 
 cause of an instrument. 
 
 In English Practice. The commence- 
 ment of a record in king's bench, now writ- 
 
MEMORANDUM 
 
 228 
 
 MEMORY 
 
 ten in English, "Be it remembered," and 
 which gives name to the whole clause. 
 
 It is only used in proceedings by till, and not 
 In proceedings by original, and was introduced 
 to call attention to what was considered the bye- 
 business of the court. 3 Tidd, Pract. 775. Me- 
 morandum is applied, also, to other forms and 
 documents in English practice : e. g. memoran- 
 dum in error, a document alleging error in fact 
 and accompanied by an affidavit of such matter 
 of fact. 15 & 16 Vict. c. 76, § 158. Kerr's Act. 
 Law. Proceedings in error are now abolished in 
 civil cases ; Jud. Act, 1875. Also, a memoran- 
 dum of appearance, etc., in the general sense of 
 an informal instrument, recording some fact or 
 agreement. 
 
 A memorandum of association is a document 
 subscribed by seven or more persons for the pur- 
 pose of forming themselves into an incorporated 
 company, with or without limited liability. 8 
 Steph. Com. SO. 
 
 A writing required by the Statute of 
 Frauds. Vide " Note or memorandum." 
 
 A memorandum of the terms of an agreement 
 was signed by plaintiff but not by defendant ; 
 the latter subsequently wrote to plaintiff refer- 
 ring to " our agreement for the hire of your car- 
 riage," and " my monthly payment." There 
 was no other arrangement between the parties, 
 to which these expressions could refer. Held, 
 that, the letter and the document containing the 
 terms of the arrangement, together constituted 
 a note and memorandum signed by defendant, 
 within the fourth section of the Statute of Frauds ; 
 45 L. J. Rep. N. s. 348 ; s. c. 25 Alb. L. J. 70. 
 See 99 U. S. 100 ; 33 N. J. Eq. 838 ; 66 lud. 474. 
 
 In the Law of Bvidence. A witness 
 may refresh his memory by referring to a 
 written instrument, memorandum, or entry in 
 a book, and may be compelled to do so, if the 
 writing is in court ; 20 Pick. 441 ; 11 S. C. 
 195. The writing need not be an original or 
 made by the witness himself, provided, after 
 inspecting it, he can speak from his own re- 
 collection, not relying wholly upon the writ- 
 ing; 10 N. H. 544 ; 14 Cent. L. J. 119 ; 10 
 N.C.167; 39 Mich. 108. And a writing may 
 be referred to by witness, even if inadmis- 
 sible as evidence itself; 8 East, 273. A 
 witness may refer to a writing which he re- 
 members having seen before, and which he 
 knew at that time to be correct, although he 
 has no recollection of the facts contained 
 therein ; so, when he neither recognizes the 
 writing nor remembers anything therein, but 
 yet, knowing it to be genuine, his mind is so 
 convinced, that he is enabled to swear to the 
 fact, as where a banker's clerk is shown a bill 
 of exchange with his own writing upon it ; 1 
 Greenl. Ev. |§ 436-439. See 1 Houst. Cr. 
 C. 476; 76 N. Y. 604; 18 Hun, 443; 39 
 Mich. 405; 25 Minn. 160. 
 
 In Insurance. A clause in a policy limit- 
 ingthe liability of the insurer. 
 
 Policies of insurance on risks of transport- 
 ation by water generally contain exceptions 
 of all liability from loss on certain articles 
 other than total, or for contributions for 
 general average ; and for liability for particu- 
 lar average on certain other articles supposed 
 to be perishable or specially liable to damage. 
 
 under specified rates on each, varying from 
 three per cent, to twenty, and for any loss 
 whatever under three or five per cent. Some 
 seventy or eighty articles are subject to these 
 exceptions of particular average in the divers 
 forms of policy in use in different places • i 
 Phill. Ins. § 54, n. These exceptions were 
 formerly introduced under a " memorandum " 
 or " N. B.," and hence have been called 
 "memorandum articles," and the body of 
 exceptions the "memorandum." The list 
 of articles and rates of exceptions vary much 
 in different places, and from time to time at 
 the same place; 19 N. Y. 272. 
 
 The construction of these exceptions has 
 been a pregnant subject in jurisprudence. 1 
 Stark. 436 ; 3 Carapb. 429 ; 4 Maule & S. 
 503 ; 5 id. 47 ; 1 Ball& B. 358; 3 B. &Ad. 
 20; 5id. 225; 4 B. & C. 736; 7irf. 219; 
 8 Bingh. 458 ; 16 E. L. & Eq. 461 ; 1 Bingh. 
 N. C. 526 ; 2 id. 383 ; 3 id. 266 ; 3 Pick. 
 46 ; 3 Penn. 1550; 4 Term, 783 ; 7 id. 210; 
 5 B. & P. 213 ; 7 Johns. 385 ; 2 Johns. Cas. 
 246 ; 5 Mart. La. N . 8. 289 ; 2 Sumn. 366 ; 
 16 Me. 207 ; 31 id. 455; 1 Wheat. 219; 6 
 Mass. 465 ; 15 East, 559 ; 9 Giir& J. 337; 
 7 Cra. 415; 8 id. 84 ; 1 Stor. 463; Stevens, 
 Av. p. 214; Benecke, Av. by Phill. 402; 3 
 Conn. 367 ; 19 N. Y. 272. 
 
 MEMORAltonM CHECK. It is not 
 unusual among merchants, when one makes a 
 temporary loan to another, to give the lender 
 a check on a bank, with the express or im- 
 plied agreement that it shall be redeemed by 
 the maker himself, and that it shall not be 
 presented at the bank for payment : such un- 
 derstanding being denoted by the word mem- 
 orandum upon it. If passed to a third per- 
 son, it will be valid in his hands like any other 
 check; 4 Du. N. Y. 122; 11 Paige, Ch. 
 612; 12 Abb. Pr. U.S. 200. 
 
 MEMORIAIi. A petition or representa- 
 tion made by one or more individuals to a 
 legislative or other body. When such instru- 
 ment is addressed to a court, it is called a pe- 
 tition. 
 
 MEMORIZATION. 
 
 In the case of Coleman »». Wathen, S Term, 
 345, it was held by BuUer, J., that no action 
 could lie for pirating a play by means of memo- 
 rization alone. On the strength of this decision, 
 an injunction was refused to restrain the repre- 
 sentation of a play in the unreported case of 
 Wallack vs. Barney Williams, N.T. Sup.Ct.lst 
 Dist. 8. T. 1867. The reasoning upon which these 
 cases are based is not satisfactory. While the 
 owner of a play has no power to prevent one who 
 listens to its production, from committing it to 
 memory, and repeating it for his own or Wb 
 friends' amusement, he should certainly be able 
 to restrain its production by another for purposes 
 of profit, whether it be pirated in one way or 
 another. See article in 14 Am. L. Beg. s. s. 
 207 ; 3 Morg. Law of Lit. 330. 
 
 MEMOR7. Understanding ; a capacity 
 to make contracts, a will, or to commit a 
 crime, so far as intention is necessary. 
 
 Memory is sometimes employed to express tie 
 capacity of the understanding, and sometimes 
 its power; when we speak of a -retentive niein- 
 
MEMORY, TIME OF 
 
 229 
 
 MERCHANT 
 
 ory, we use it in the former sense ; when of a 
 ready memory, in the latter. Shelford, Lun. 
 Intr. 29, 30. 
 
 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 
 libellous 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 Term, 126 ; 5 
 Co. 125 ; Hawkins, PI. Cr. b. 1, c. 73, s. 1. 
 
 MEMOH7, TIME OF. According to 
 the English common law, which has Been 
 altered by 2 & 3 Will. IV. c. 71, the time of 
 memory commenced from the reign of Richard 
 the First, A. D. 1189. 2 Bla. Com. 31. 
 
 But proof of a regular usage for twenty 
 years, not explained or contradicted, is evi- 
 dence upon which many public and private 
 rights are held, and sufficient for a jury in 
 finding the existence of an immemorial cus- 
 tom or prescription; 2 Saund. 175 a, d; 
 Peake, Ev. 336 ; 2 Price, Exch. 450 ; 4 id. 
 198. 
 
 MENACIi. A threat; a declaration of 
 an intention to cause evil to happen to an- 
 other. 
 
 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 hag a civil action 
 against the wrong-doer. Comyns, Dig. Bat- 
 tery (D") ; Viner, Abr.; Bacon, Abr. Assault; 
 Co. Lift. 161 a, 162 6, 253 6; 2 Lutw. 1428. 
 See Threat. 
 
 MENIAL. This term is applied to ser- 
 vants who live under their master's roof. See 
 Stat. 2 Hen. IV. c. 21 ; 1 Bla. Com. 425. 
 
 MENSA (Lat.). An obsolete term, com- 
 prehending all goods and necessaries for live- 
 lihoods. 
 
 MENSA ET THORO. See Separa- 
 tion A MeNSA ET ThOKO. 
 
 MBNSURA DOMINI REGIS. The 
 measure of our lord the king, being the 
 weights and measures established under 
 King Richard I. in his parliament at West- 
 minster, 1197. 1 Bla. Com. 275 ; Moz. & W. 
 
 MENU, LAWS OP. Institutes of Hin- 
 du law, dating back probably three thousand 
 years, though the Hindus believe they were 
 promulgated " in the beginning of time, by 
 Menu, son, or grandson, of Brahma, the first 
 of created beings, and not the oldest only, 
 but the holiest of legislators." 
 
 " Such rules of the system as relate to man in 
 his social relations will be found singularly wise 
 and just, and not a few of them embodying the 
 substance of important rules, which regulate the 
 complex system of business in our day." Our 
 knowledge of these laws is derived chiefly from 
 the translation of Sir William Jones, in the 
 seventh and eighth volumes of his works, and a 
 translation by A. L. Deslong Champs, 1833. See 
 Maine's Anc. L.; 9 Am. Law Reg. o. s. 717. 
 
 MERCANTILE LAW. That branch of 
 law which defines and enforces the rights, 
 duties, and liabilities arising out of mercantile 
 transactions and relations. As to the origin 
 of this branch of law, see Law Merchant ; 
 and for its various principles, consult the arti- 
 cles upon the various classes of commercial 
 property, relations, and ti-ansactions. 
 
 MERCANTILE LAW AMENDMENT 
 ACTS. The statutes 19 & 20 Vict. ce. 60 
 and 9 7, passed mainly for the purpose of as- 
 similating the mercantile law ef England, 
 Scotland, and Ireland. 
 
 MERCATT7M (Lat.). A market. Du 
 Cange. A contract of sale. Id. Supplies 
 for an army (commeatus). Id. See Brac- 
 ton, 56 ; Fleta, 1. 4, c. 28, §§ 13, 14. 
 
 MERCEN-LAGE. The law of the Mer- 
 cians. One of the three principal systems of 
 laws which prevailed in England about the 
 beginning of the eleventh century. It was 
 observed in many of the midland counties, 
 and those bordering on the principality of 
 Wales. 1 Bla. Com. 65. 
 
 MERCES (Lat.). In Civil Law. Reward 
 of labor in 'money or other things. As dis- 
 tinguished from pensio, it means the rent of 
 farms (prcedia rustict). Calvinus Lex. 
 
 MERCHANDISE (Lat. merx). A term 
 including all those things which merchants sell, 
 either wholesale or retail : as, dry goods, 
 hardware, groceries, drugs, etc. It is usually 
 applied to personal chattels only, and to those 
 which are not required for food or immediate 
 support, but such as remain after having been 
 used, or which are used only by a slow con- 
 sumption. See Pardessus, n. 8 ; Dig. 13. 3. 
 1 ; 19. 4. 1 ; 50, 16, 66 ; 8 Pet. 277 ; 6 
 Wend. 335. 
 
 Mere evidences of value, as bank-bills, are 
 not merchandise. " The fact that a thing is 
 sometimes bought and sold does not make it 
 merchandise." Story, J., 2 Stor. C. C. 10, 
 53, 54. See 2 Mass. 467 ; 20 Pick. 9 ; 3 
 Mete. Mass. 367; 2 Parsons, Contr. 331, 
 note w. 
 
 " Goods, wares, and merchandise," has been 
 held to embrace animate, as well as inanimate, 
 property, as oxen ; 20 Mich. 353 ; or horses ; 32 
 Vt. 655. "Merchandise" may include a curricle, 
 Anth. N. P. 157 ; or shares in a joint-stock com- 
 pany ; 60 Me. 430 ; 2 Mo. App. 51. 
 
 MERCHANT (Lat. mercator, merx) . A 
 man who traffics or carries on trade with for- 
 eign countries, or who exports and imports 
 goods and sells them by wholesale. Webster, 
 Diet.; Lex Mercatoria, 23. These are known 
 by the name of shipping-merchants. See 
 Comyns, Dig. Merchant (A); Dy. 279 b; 
 Bacon, Abr. Merchant. 
 
 One whose business it it is to buy and sell 
 metchandise : this applies to all persons who 
 habitually trade in merchandise. 1 W. & 
 S. 469 ; 2 Salk. 445. 
 
 Merchants, in the Statute of Limitations, 
 means not merely those trading beyond sea, 
 as formerly held ; 1 Chanc. Cas. 152; 1 W. 
 
MERCHANT SHIPPING ACTS 230 
 
 MERGER 
 
 & S. 469; but -whether it includes common 
 retail tradesmen, qumre; 1 Mod. 238 ; 4 Scott, 
 N. K. 819 ; 2 Parsons, Contr. 369, 370. See, 
 also, 5 Cra. 15 ; 6 Pet. 151 ; 12 id. 300 ; 5 
 Mas. 505-; 2 Uuv. 107 ; 9 Bush, 569. 
 
 According to an old authority, there are 
 four species of merchants : namely, merchant 
 adventurers, merchants dormant, merchant 
 travellers, and merchant residents ; 2 Brownl. 
 99. See, generally, 9 Salk. 445; Bacon, 
 Abr. ; Comyns, Dig. ; 1 Bla. Com. 75, 260 ; 
 1 Pardessus, Droit Comm. n. 78 ; 2. Show. 
 326; Bracton, 334. 
 
 MERCHANT SHIPPING ACTS. Cer- 
 tain English statutes, beginning with the 16 
 & 17 "Viet. c. 131, whereby a general super- 
 intendence of merchant shipping is vested in 
 the board of trade. Provisions are made for 
 the registration, etc. of merchant ships, the 
 discipline and protection of seamen, the regu- 
 lation of pilotage, etc. 
 
 MERCHANTABLE. This word in a 
 contract means, generally, vendible in mar- 
 ket. Merchandise is vendible because of its 
 fitness to serve its proper purpose ; 11 Ct. CI. 
 680 ; 34 Barb. 204, 206. 
 
 MERCHANT APPRAISERS. Mer- 
 chants selected, under the revenue laws, to 
 appraise the value of imports, where the 
 importer is dissatisfied with the official ap- 
 praisement. 
 
 In the larger ports, the board usually con- 
 sists of a merchant selected by the importer, 
 and a permanent appraiser selected by 
 the collector ; 9 Stat, at L. 630 ; Rev. Stat. 
 §§ 2609, 2946, 2610; 24 How. 508, 521. 
 
 MERCHANTMAN. A ship or vessel 
 employed in the merchant-service. 
 
 MERCHANTS' ACCOUNTS. Accounts 
 between merchant and merchant, which must 
 be current, mutual and unsettled, consisting of 
 debts and credits for merchandise. 6 How. 
 (Miss.) 328; 4 Cra. C. C. 696 ; 6 Pet. 151. 
 
 The statutes of limitation in most of the 
 states contain an exception in favor of such 
 accounts, following the stat. 21 Jac. I. c. 16, 
 § 3, which, however, was repealed in England 
 by 19 & 20 Vict. c. 97, ? 9, and has not been 
 retained in the latest revised acts of limitation 
 in this country. Whether the exception ap- 
 plied to accounts in which there had been no 
 item for six years, has been the subject of con- 
 flicting adjudication, but was settled affirma- 
 tively in England, in Robinson v. Alexander, 
 8 Bligh, N. s. 352. See 8 M. & W.. 781 ; 20 
 Johns. 576; 7 Cra. 360; 61 Ala. 41 ; 24 
 Minn. 17; 30 N. J. Eq. 264; Ang. Lim. 
 ch. XV. 
 
 MERC? (Law Fr. merci; Lat. miseri- 
 cordia). 
 
 In Practice. The arbitrament of the king 
 or judge in punishing offences not directly cen- 
 sured by law. 2 Hen. VI. c. 2 ; Jacob, 
 Law Diet. So, to be in mercy, signifies to 
 be liable to punishment at the discretion of 
 the judge. 
 
 In Criminal La-w. The total or partial 
 remission of a punishment to which a convict 
 is subject. When the whole punishment is 
 remitted, it is called a pardon ; when only a 
 part of the punishment is remitted, it is fre- 
 quently a conditional pardon ; or, before sen- 
 tence, it is called clemency or mercy. See 
 Rutherforth, Inst. 224; 1 Kent, 265; 3 
 Story, Const. § 1488._ 
 
 As Jo the construction of "mercy" in the 
 exception to the Sunday laws in favor of 
 deeds of necessity and mercy, see 2 Pars. 
 Contr. 262, notes. 
 
 MERE(Fr.). Mother. Thi'swordisfre- 
 quently used, as, in ventre sa mire, which sig- 
 nifies a child unborn, or in the womb. 
 
 MERE MOTION. See £x Meko 
 
 MOTU. 
 
 MERE RIGHT. A right of property 
 without possession. 2 Bla. Com. 197. 
 
 MERGER. The absorption of a thing of 
 lesser importance by a greater, whereby the 
 lesser ceases to exist but the greater is not in- 
 creased. 
 
 In Estates. When a greater estate and 
 less coincide and meet in one and the same 
 
 Eerson, without any intermediate estate, the 
 iss is immediately merged, that is, sunk or 
 drowned, in the latter. For 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 inherit- 
 ance, 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 Bla. 
 Com. 177 ; Latch, 153 ; Poph. 166; 6 Madd. 
 119; 1 Johns. Ch. 417 ; 3 id. 53; 8 Mass. 
 172. 
 
 The estate in which the merger takes place 
 is not enlarged by the accession of the pre- 
 ceding estate ; and the greater or only sub- 
 sisting 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. Conv. 7 ; 
 Wash. R. P. As a general rule, equal es- 
 tates will not merge in each other. 
 
 The merger is produced either from the 
 meeting of an estate of higher degree with 
 an estate of inferior degree or from the meet- 
 ing of the particular estate and the immediate 
 reversion m the same person ; 4 Kent, 98. 
 See Wash. R. P. Index ; 3 Prest. Conv. ; 15 
 Viner, Abr. 361 ; 10 Vt. 293 ; 8 Watts, 
 146. 
 
 In Criminal La-w. When a man commits 
 a great crime which includes a lesser, the latter 
 is merged in the former ; 1 East, P. C. 411 ; 
 72 N. C. 447 ; 1 Bish. Cr. L. §§ 786-790, 
 804-815 ; 109 Mass. 349. 
 
 Murder, when committed by blows, neces- 
 sarily includes an assault and battery ; a ''*'■ 
 tery, an assault; a burglary, when accom- 
 panied with a felonious taking of personal 
 property, a larceny : in all these and similar 
 
MERITS 
 
 231 
 
 MESNE PROFITS 
 
 cases, the lesser crime is merged in the 
 greater. 
 
 But when one offence is of the same char- 
 acter with the other, there is no merger : as, 
 in the case of a conspiracy to commit a mis- 
 demeanor, and the subsequent commission of 
 the misdemeanor in pursuance of the conspi- 
 racy ; the two crimes being of equal degree, 
 there can be no leo;al merger ; 4 Wend. 265. 
 
 Of Rights. Rights are said to be merged 
 when the same person who is bound to pay is 
 also entitled to receive. This is more pro- 
 perly called a confusion of rights, or extinr 
 gnishraent. 
 
 When there is a confusion of rights, and 
 the debtor and creditor become the same per- 
 son, there can be no right to put in execution ; 
 but there is an immediate merger ; 2 Ves. 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 extin- 
 guished. 
 
 In 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 convic- 
 tion. 
 
 The old rule, 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; 1 
 Hale, PI. Cr. 546; or acquittal; 12 East, 
 409 ; 2 Hayw. 108. If the civil action be 
 commenced before, the plaintiff will be non- 
 suited ; Yelv. 90 a, n. See Ham. N. P. 63 ; 
 Kel. 48 ; Cas. temp. Hardw. 350 ; Lofft, 88 ; 
 3 Me. 468. BuUer, J., says this doctrine is 
 not extended beyond actions of trespass or 
 tort; 4 Term, 333. See, also, 1 H. Blackst. 
 583, 588, 594 ; 15 Mass. 78, 336 ; 1 Gray, 
 88, 100. 
 
 The Revised Statutes of New York, pt. 8, 
 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 Ken- 
 tucky, Pr. Dec. 203 ; New Hampshire, 6 N. 
 H. 454 ; and Massachusetts, 1 Gray, 83, 100 ; 
 the owner of stolen goods may immediately 
 pursue his civil remedy. See, generally, 1 
 Ala. 8 ; 2 id. 70 ; 15 Mass. 336 ; 1 Gray, 83, 
 100; 1 Coxe, 115; 4 Ohio, 376; 4 N. H. 
 239 ; 1 Miles, 312 ; 6 Rand. 223 ; 1 Const. 
 So. C. 231 ; 2 Root, 90. 
 
 MERITS. A word used principally in 
 matters of defence. 
 
 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. & Aid. 703; 1 Ashm. 4; 3 
 Johns. 245, 449 ; 6 id. 360, 536 ; 6 id. 131 ; 
 2 Cow. 281 ; 7 id. 514 ; 6 Wend. 511. 
 
 But as used in the N. T. Co|3e of Proc. § 349, 
 It has been held to mean " the strict legal rights 
 of the parties as contra-distinguished from those 
 mere questions of practice which every court 
 regulates for itself, and from all matters which 
 depend upon the discretion or favor of the 
 court." 4 How. Pr. 332. 
 
 MERTON, STATUTE OP. An an- 
 cient English ordinance or statute, 20 Hen. 
 III. (1235), which took its name from the 
 place in the county of Surrey where parlia- 
 ment sat when it was enacted. Its provisions 
 related chiefly to dower, usury, legitimacy of 
 children, the right of freeman to make suit 
 by attorney at the lord's or any county <eourt, 
 the inclosure of common lands, wardships. 2 
 Inst. 79 ; Barring. Stat. 41, 46 ; Hale, Hist. 
 Com. Law, 9, 10, 18. 
 
 MESCROVANT. Used in our ancient 
 books. An unbeliever. 
 
 MESE. An ancient word used to signify 
 house, probably from the French maison. It 
 is said that by this word the buildings, curti- 
 lage, orchards, and gardens will pass. Co. 
 Litt. 56. 
 
 MESNALTY, or, MESNALITY. A 
 manor held under a superior lord. The estate 
 of a mesne. T. L. ; Whart. Die; 4 Phila. 
 71 ; 14 East, 234. 
 
 MESNE. Intermediate ; the middle be- 
 tween two extremes ; that part between the 
 commencement and the end, as it relates to 
 time. 
 
 Hence the profits which a man receives be- 
 tween disseisin and recovery of lands are called 
 mesne profits. Process which is issued in a suit 
 between the original and final process is called 
 mesne process. 
 
 An assignment made between the original 
 grant and a subsequent assignment, is called a 
 m£sne assignment. 
 
 Mesne incumbrances are intermediate charges, 
 or incumbrances which have attached to property 
 between two given periods ; as, between the pur- 
 chase and the conveyance of land. 
 
 In England, the word mesne also applies to a 
 dignity : those persons who hold lordships or 
 manors of some superior who is called lord para- 
 mount, and grant the same to inferior persons, 
 are called mesne lords. 
 
 MESNE LORD. A middle or interme- 
 diate lord. 2 Bla. Com. 59 ; 1 Steph. Com. 
 168, 174. See Mesne. 
 
 MESNE PROCESS. In Practice. All 
 writs necessary to a suit between its begin- 
 ning and end, that is, between primary pro- 
 cess or summons and final process, or execu- 
 tion, whether for the plaintiff, against the de- 
 fendant, or for either against any party whose 
 presence is necessary to the suit. For ex- 
 ample, the capias or mesne process or ad re- 
 spondendum IS issued after a writ of sum- 
 mons, and before execution. 3 Bla, Com. 
 279 ; 3 Steph. Com. 664 ; 1 Tidd. Pr. 243 ; 
 Finch, Law, b. 4, c. 43, Proceedings are 
 now usually begun with a capias, so that 
 what was formerly mesne is now primary, 
 
 MESNE PROPITS. The value of the 
 premises, recovered in ejectment, during jthe 
 
MESNE, WRIT OF 
 
 232 
 
 MICHEL-GEMOT 
 
 time that the lessor of the plaintiff has been 
 illegally kept out of the possession of his es- 
 tate by the defendant : such are properly re- 
 covered by an action of trespass, quare clavr 
 fum f regit, after a recovery in ejectment. 11 
 S. & R. 56 ; Bacon, Abr. Ejectment (H) ; 3 
 Bla. Com. 205. 
 
 As a general rule, the plaintiff is entitled 
 to recover for such time as he can prove the 
 defendant to have been in possession, pro- 
 vided he does not go back beyond six years ; 
 for in that case the defendant may plead the 
 statute of limitations ; 3 Yeates, 13 ; Bull. 
 Nisi P. 88. 
 
 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 improvements; 2 Wash. C. C. 165. 
 See, generally. Wash. R. V. ; Bacon, Abr. 
 Ejectment (H) ; Woodf. Landl. & T. ch. 14, 
 a. 3 ; Fonbl. Eq. Index ; 2 Phill. Ev. 208 ; 
 Adams, Ej. 13 ; Dane, Abr. Index; Powell, 
 Mortg. Index ; Bouvier, Inst. Index. 
 
 MESNE, WRIT OP. The name of an 
 ancient and now obsolete 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. 
 Fitzh. N. B. 316. 
 
 MESS BRIEF. In Danish Law. A 
 
 certificate of admeasurement granted by com- 
 petent authority at home-port of vessel. Ja- 
 CObsen, Sea^Laws, 50. 
 
 MESSAGE FROM THE CROWN. 
 
 The method of communicating between the 
 sovereign and the house of parliament. A 
 written message under the royal sign manual, 
 is brought by a member of the house, being 
 a minister of the crown, or one of the royal 
 household. Verbal messages are also some- 
 times delivered. May, Pari. Pr. ch. 17. 
 
 MESSAGE, PRESIDENT'S. The an- 
 nual communication of the President of the 
 United States to congress, pursuant to art. 
 II. sec. 3, of the constitution. It is usually 
 delivered at the commencement of the ses- 
 sion, and embodies the president's views and 
 suggestions concerning the general aflTairs of 
 the nation. Since Jefferson's time, at least, 
 it has been in writing. 
 
 MESSENGER. A person appointed to 
 perform certain duties, generally of a minis- 
 terial character, such as carriers of messages 
 employed by a secretary of state, or officers 
 of a court of justice, called in Scotland, mes- 
 sengers at arms. Toml. ; Paterson. 
 
 The ofiicer who takes possession of an in- 
 solvent or bankrupt estate for the judge, com- 
 missioner, or other such officer. 
 
 The messenger of tlie English court of chan- 
 cery has the duty of attending on the great seal, 
 either in person or by deputy, and must he ready 
 to execute all such orders as he shall receive from 
 the lord chancellor, lord keeper, or lords eom- 
 iQissioners. Brown. 
 
 MESSUAGE. A term used in comtf. 
 ancing, and nearly synonymous with dwell] 
 ing-house. 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 to. 
 gether with the close on which the house is 
 built. Co. Litt. 5 6 ; 2 Saund. 400 ; 4 Cruise 
 Dig. 321 ; 2 Term, 502 ; 4 Blackf. 331. Bui 
 seejfhe cases cited in 9 B. & C. 681. This 
 term, it is said, includes a church ; 11 Co. 26 • 
 2 Esp. 628 ; 1 Salk. 256 ; 8 B. & C. 26* 
 And see 3 Wils. 141 ; 2 W. Blackst. 726- 4 
 M. & W. 567 ; 2 Bingh. n. c. 617 ; 1 Saund 
 6 ; 2 Washb. R. P. 
 
 METES AND BOUNDS. The boupd, 
 ary-lines of land, with their terminal points 
 and angles. Courses and distances control, 
 unless there is matter of more certain descrip. 
 tion, e. g. natural monuments ; 42 Me. 209. 
 A joint tenant cannot convey by metes and 
 bounds ; 1 Hill. R. P. 582. See Bods, 
 
 DARY. 
 
 METHOD. The mode of operating, or 
 the means of attaining an object. 
 
 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 pro. 
 duced 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. & Aid. 350; 2 H. Blackst 
 492 ; 8 Term, 106 ; 4 Burr. 2397 ; Perpigna, 
 Manuel des Inventeurs, etc., c. 1, sect. 6, § 1, 
 p, 22. 
 
 METRE (Greek). A measure. See 
 Measure. 
 
 METUS (Lat.). A reasonable fear of an 
 intolerable evil, as of loss of life or limb, such 
 as may fall upon a brave man {virum coMan- 
 tem). 1 Sharsw. Bla. Com. 131 ; Calvinus, 
 Lex. And this kind of fear alone will invali- 
 date a contract as entered into through duress. 
 Calvinus, Lex. 
 
 In a more general sense, fear. 
 
 MICHAI.MASTERM. InEngUsh 
 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 for- 
 merly a movable term. Stat. 11 Geo. IV. 
 and 1 Will. IV. c. 70. 
 
 MICHEL-GEMOT (spelled, also, micel, 
 gemote. Sax. great meeting or assembly). 
 One of the names of the general council im- 
 niemorially held in England. 1 Sharsw. BU. 
 Com. 147. 
 
 One of the great councils of king and noble, 
 men in Saxon times. 
 
 These great councils were severally called 
 wittena-gemotes, afterwards micel synodi and 
 micel-gemotes. Cowel, edit. 1727 ; Cunning- 
 ham, "Law Diet. Mic^UGemotes. See Mf- 
 chel-Synoth. 
 
MICHEL-SYNOTH 
 
 233 
 
 MICHIGAN 
 
 MICHEL-SYNOTH (Sax. great council). 
 One of the names of the f;eneral council im- 
 memorially held in England. 1 Sharsw. Bla. 
 Com. 147. 
 
 The Saxon kings usually called a lynod, or 
 mixed council, consisting both of ecclesiastics 
 and the nobility, three times a year^which was 
 not properly called a parliament till J3enry lll.'s 
 time. Cowel, ed. 1727 ; Cunningham, Law Diet., 
 Synod, Mlcel-Gemotes. 
 
 MICHIGAN. The name of one of the 
 states of the United States of America. 
 
 It was admitted into the Union by act of con- 
 gress of January 36, 1837. 5 Stat, at L. 44. See 
 Act of Congr. June 15, 1836, 5 Stat, at L. 49. 
 
 The iirst constitution of the state was adopted 
 by a convention held at Detroit, in May, 1835. 
 This was superseded by the one at present in 
 force, which was adopted in 1850. 
 
 Every person above the age of twenty-one 
 years, who has resided In the state three mouths, 
 and in the township or ward in which he offers 
 to vote ten days, next preceding election, and 
 who is either a male citizen, or a male inhabitant 
 who resided in the state June 24, 1835, or a male 
 inhabitant who resided in the state January 1, 
 1850, who had 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, 
 or who is a civilized male inhabitant of Indian 
 descent, a native of thcTJnited States, and not a 
 member of any tribe, is an elector and entitled 
 to vote. 
 
 The Legislative Power. — The Senate con- 
 sists of thirty-two members, elected by the 
 people in each district for the term of two years. 
 Senators must be citizens of the United States, 
 and qualified voters of the district they represent. 
 
 The Souse af Sepresentatives is to consist of 
 not less than sixty-four nor more than one hun- 
 dred members, elected in their resfiective dis- 
 tricts for the term of two years. The elections 
 take place on the Tuesday after the first Monday 
 in November, in the even years. Each county 
 entitled to more than one representative Is to be 
 divided by the supervisors into districts, each of 
 which is to elect one representative. A represen- 
 tative must be a citizen of the United States, and 
 a qualified voter of the county he represents. 
 
 The members of both houses are privileged 
 from arrest, except for treason, felony, and 
 breach of the peace, and from any civil process 
 during the session and for fifteen days before and 
 next afterwards. The constitution contains the 
 usual provisions making each house judge of the 
 qualifications, election, and returns of each of 
 its members ; providing for organization of the 
 houses and continuance of the session ; for regu- 
 lating the conduct of its members ; for keeping 
 and publishing a journal of proceedings ; for 
 open sessions. 
 
 The Executive Powek. — The Governor Is 
 elected by the people of the state for the term of 
 two years. He must be thirty years old at least ; 
 for flveyears a citizen of the United States, and for 
 two years next preceding the election a citi- 
 zen of the state ; and no member of con- 
 gress, nor any person holding ofiice under 
 the United States, may be governor. He is 
 commander-in-chief of the military and naval 
 forces, and may call out such forces to exe- 
 cute the laws, to suppress insurrections, and to 
 repel invasions ; is to transact all necessary busi- 
 ness with the oificers of government, and may 
 
 require information in writing, from the ofl3cera 
 of the executive department, upon any subject 
 relating to the duties of their respective olHces ; 
 must take care that the laws be faithfully exe- 
 cuted ; may convene the legislature on extraor- 
 dinary occasions, and at an unusual place when 
 the seat of government becomes dangerous from 
 disease or a common enemy ; may grant re- 
 prieves, commutations, and pardons after con- 
 victions, 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 ibr 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 exe- 
 cution of the sentence, or grant a further re. 
 prieve. He must communicate to the legislature 
 at each session information of each case of 
 reprieve, commutation, or pardon granted, and 
 the reasons therefor. 
 
 The lieutenant- Oavernor is elected at the same 
 time, for the same term, and must possess the 
 same qualifications, as tlie governor. He is, by 
 virtue of his office, president of the senate. 
 
 In case of the impeachment of the governor, 
 his removal from office, death, inability, resig- 
 nation, or absence from the state, the powers 
 and duties of the ofiice devolve upon the Ueu- 
 tenant-govemor for the residue of the term, or 
 until the disability ceases. 
 
 During a vacancy in the office of governor. If 
 the lieutenant-governor die, resign, be im- 
 peached, displaced, be Incapable of performing 
 the duties of his office, or absent from the 
 state, the president pro tempore of the senate is 
 to act as governor until the vacancy be filled or 
 the disability cease. 
 
 The Judicial Poweb. — TTie Supreme Court 
 consists of one chief and three associate justices, 
 chosen by the electors of the state for the term 
 of eight years. One of the judges goes out of 
 office every two years. Four terms are to he 
 held annually, at Lansing, and three of the 
 judges constitute a quorum. It has a general 
 supervisory power over inferior courts, and gen- 
 eral appellate jurisdiction of cases brought up 
 by appeal, by certificate of judges of lower 
 courts, or by consent of parties on agreed state- 
 ments of facts. The statute provides that the 
 supreme court shall by rules of practice sim- 
 plify the practice of the state. The changes to 
 be secured are specified as the following : to wit, 
 abolition of the distinction between law and 
 equity ; of fictions and unnecessary proceedings ; 
 shortening and simplification of pleadings ; ex- 
 pediting decisions ; regulation of decisions ; 
 remedying abuses and imperfections of practice ; 
 abolition of unnecessai-y forms and technicaUties; 
 non-abatement of suits through misjoinder or 
 non-joinder of parties, so far as justice will 
 allow ; providing for omitting parties improperly 
 joined, and joining those improperly omitted. 
 Comp. Laws, 1871, 1502. 
 
 Circuit Courts. The state is divided into twenty- 
 four judicial circuits, each presided over by a cir- 
 cuit judge, elected by the votes of his district, 
 and holding office for six years, until his succes- 
 sor is elected. In case of death, resignation, or 
 vacancy, the governor may appoint a circuit 
 judge who shall hold until a successor be elected 
 at a special or next general election. This is the 
 court of general original jurisdiction, having 
 jurisdiction in all matters civil and criminal not 
 expressly excepted, and appellate jurisdiction 
 from all inferior courts and tribunals, and a su- 
 
MIDDLE THREAD 
 
 234 
 
 MILITARY LAW 
 
 pervisory control of the same. It has alBO power 
 to Issue writs of habeas corpus, mandamus, In- 
 junction, quo warranto, certiorari, and other 
 writs necessary to carry into effect its orders, 
 judgments, and decrees, and give It a general 
 control over inferior courts and tribunals within 
 the respective districts. It sits also as a court of 
 chancery, having powers co-extensive with the 
 powers of the court of chancery In England, 
 with various modifications, however, both con- 
 stitutional and statutory. Two terms at least are 
 held annually in each county organized for judi- 
 cial purposes, and four terms in counties con- 
 taining ten thousand inhabitants. The stated 
 terms are also terms of the court of chancery. 
 
 A Probate Court is held in each county by a 
 judge elected by the people of the county for the 
 term of four years and till a successor is chosen. 
 It may take probate of wills, and has cognizance 
 of all matters appertaining to the settlement of 
 the estates of decedents and the care of minors. 
 Including the appointment and superintendence 
 of guardians of minors, etc. 
 
 Justices of the Peace are elected by the people 
 of each township for four years. Not more than 
 four are to be elected in each township, and they 
 are to be classified. They have exclusive civil 
 jurisdiction in all cases where the amounts in- 
 volved are less than one hundred dollars, and 
 concurrent jurisdiction over all sums less than 
 three hundred dollars. They have a criminal 
 jurisdiction for offences arising in their re- 
 spective counties over all cases of larceny 
 not charged as a second offence where the 
 ariiount taken does not exceed twenty-flve dol- 
 lars ; of assault and battery, not committed riot- 
 ously nor upon a public oflicer in the discharge 
 of his duty ; of killing, maiming, or disfiguring 
 cattle, where the damage done does not exceed 
 twenty-five dollars ; and of other minor oiTences 
 punishable by fine not exceeding one hundred 
 dollars, or imprisonment not exceeding three 
 months. 
 
 A Circuit Court Commissioner is elected in each 
 county for two years, who has the judicial power 
 of a judge of the circuit court at chambers. He 
 Is to perfoiin the duties of a master In chancery, 
 has power to grant injunctions, etc. He must be 
 an attorney and counsellor-at law. 
 
 Municipal Courts exist in the larger cities. 
 They are of two classes, civil and criminal. 
 
 The Civil Courts have the same general juris- 
 diction as the circuit courts as to actions of a 
 ■ transitory nature in which all or some of the 
 parties are residents of the city where the court 
 is situated. 
 
 The Criminal Courts have exclusive jurisdic- 
 tion over offences committed in the cities where 
 they are situated. 
 
 Michigan has no code of practice or procedure. 
 The practice is that of the English common law 
 courts largely modified by statute and rules of 
 court, by which special pleading is nearly dis- 
 pensed with. The last general compilation of 
 the laws of Michigan was in 1871. 
 
 MIDDLE THREAD. See Ad Medium 
 
 FiLUM. 
 
 MIDDLEMAN. One who has been em- 
 ployed as an agent by a principal, and who 
 has employed a sub-agent under him by au- 
 thority of the principal, either express or im- 
 plied. He is not, in general, liable for the 
 wrongful acts of the sub-agent, the principal 
 being alone responsible ; 3 Campb. 4 ; 6 
 Term, 411 ; 14 East, 605. 
 
 A person who is employed both by the 
 seller and purchaser of goods, or by the pur- 
 
 chaser alone, to receive them into his posses- 
 sion, for the purpose of doing something in 
 or about them,: as, if goods be delivered from 
 a ship by the seller to a wharfinger, to be by 
 him forwarded to the purchaser, who has been 
 appointed by the latter to receive them ; or 
 if goods be sent to a packer, for and by orders 
 of the vendee, the pac]s.er is to be considered 
 as a middleman. 
 
 The goods in both these cases will be con- 
 sidered in transitu, provided the purchaser 
 has not used the wharfinger's or the packer's 
 warehouse as his own, and have an ulterior 
 place of delivery in view ; 4 Esp. 82 ; 2 B 
 & P. 457; 3 id. 127, 469; 1 Campb. 282:1* 
 Atk. 245 ; 1 H. Blaekst. 364 ; 3 East, 93. 
 
 MIDWIFE. In Medical Jurispro. 
 dence. A woman who practises midwitiery 
 a woman who pursues the business of an ac- 
 coucheuse. 
 
 A midwife is required to perform the busi- 
 ness she undertakes with proper skill ; and if 
 she be guilty of any mala praxis she is liable 
 to an action or an indictment for the misde- 
 meanor. See Viner, Abr. Physician; Co. 
 myns. Dig. Physician ; 8 East, 348 ; 2 Wils. 
 259 ; 4 C. & P. 398, 407 a ; 2 Russ. Cri. 388. 
 
 M I E S E S. In Spanish Law. Grain 
 crops. 
 
 MILE. A length of a thousand paces, or 
 seventeen hundred and sixty yards, or five 
 thousand two hundred and eighty feet. It 
 contains eight furlongs, every furlong being 
 forty poles, and each pole sixteen feet six 
 inches. 2 Stark. 89. 
 
 MILEAGE. A compensation allowed by 
 law to officers for their trouble and expenses 
 in travelling on public business. 
 
 In computing mileage, the distance by the 
 road usually travelled is that which must be 
 allowed, whether in fact the officer travels a 
 more or less distant way to suit his own con- 
 venience ; 16 Me. 431. 
 
 MILES. In Civil Law. A soldier. 
 (FeZ o "militia" aula "multitudine," aula 
 numero, "mille hominum." L. 1, § 1, D., 
 de testam. milit.) Vocab. Jur. Utr. 
 
 In Old English Law. A knight, because 
 military service was part of the feudal tenure. 
 Also, a tenant by military service, not a 
 knight. 1 Bla. Com. 404 ; Seld. Tit. Hon. 
 334. 
 
 MILITARY LAW. A system of regu- 
 lations for the government of an army. 1 
 Kent, 341, n. 
 
 That branch of the laws which respects 
 military discipline and the government of 
 persons employed in the military service. De 
 Hart, Courts-Mart. 16. 
 
 Military law is to be distinguished from mar- 
 tial law. Martial law extends to all persons; 
 military law to all military persons only, and not 
 to those In a civil capacity. Martial law super- 
 sedes and suspends the civil law, but ni'l''?'? 
 law is superadded and subordinate to the civil 
 law. See 3 Kent, 10 ; 34 Me. 186 ; Mabtul 
 Law ; Couet-Martial. 
 
MILITIA 
 
 235 
 
 MILL 
 
 The body of the military law of the United 
 States is contained in the "act establishing 
 rules and articles for the government of the 
 armies of the United States," approved April 
 SO, 1806, and various subsequent acts, some 
 of the more important of which are those of 
 May 29, 1830; August 6, 1846; July 29, 
 1861; August S, 1861; August 5, 1861; 
 December 24, 1861; February 13, 1862; 
 March 13, 1862; March 13, 1865; Feb. 18, 
 1875. See, also, Act of February 28, 1795 ; 
 5 Wheat. 1 ; 3 S. & K. 156, 790 ; the gene- 
 ral regulations, and the orders of the presi- 
 dent. 
 
 The act of 1806 consists of three sections, 
 the first section containing one hundred and 
 one articles, which describe very minutely the 
 various military offences, the punishments 
 which may be inflicted, the manner of sum- 
 moning and the organization of courts-mar- 
 tial. These articles are called the articles of 
 war. Their provisions extend to the militia 
 mustered into the United States service, and 
 to marines when serving with the array. 
 
 The military law of England is contained 
 in the Mutiny Act, which has been passed an- 
 nually since April 12, 1689, and the additional 
 articles of war made and established by the 
 sovereign. 2 Steph. Com. 589. 
 
 In addition, there are in both countries 
 various usages which constitute an unwritten 
 military law, which applies to those cases 
 where there are no express provisions. 1 2 
 Wheat. 19 ; Benfet, Mil. Law, 3. 
 
 The sovereign, in England, has authority to 
 ordain, by articles of war, with regard to 
 crimes not specified by military law, every 
 punishment not reaching to death or mutila- 
 tion ; the president of the United States can- 
 not ordain any penalty for any military crime 
 not expressly declared by act of congress. 
 
 Consult Benfet, De Hart, Cross, Samuels, 
 Tytler, on Military Law ; Militia. 
 
 MILITIA. The military force of the 
 nation, consisting of citizens called forth to 
 execute the laws of the Union, suppress in- 
 surrection, and repel invasion. 
 
 The constitution of the United States pro- 
 vides on this subject that congress shall have 
 power to provide for calling forth the militia 
 to execute the laws of the Union, suppress in- 
 surrections, and repel invasions ; to provide 
 for organizing, arming, and disciplining the 
 militia, and for governing such part of them 
 as may be employed in the service of the 
 United States, reserving to the states respec- 
 tively the appointment of the officers, and the 
 authority of training the militia, according to 
 the discipline prescribed by congress. 
 
 In accordance with the provisions of the 
 constitution, congress, in 1792, act of May 8, 
 passed an act relating to the militia, which 
 has remained, with modifications, till the 
 present time. Under these provisions the 
 militia can be used for the iiuppression of re- 
 bellion as well as of insurrection; E. S. § 
 1642; 7 Wall. 700; 45 Penn. 238. The 
 president of the United States is to judge when 
 
 the exigency has arisen which requires the 
 militia to be called out; 12 Wheat. 19; 8 
 Mass. 548. He may make his request di- 
 rectly to the executive of the state, or by an 
 order directed to any subordinate officer of 
 the state militia; 3 S. & R. 169. So pro- 
 vided by K. S. § 1642; and see 12 Wheat. 
 19 ; 5 Phila. 259. 
 
 When the militia are called into actual ser- 
 vice, they are subject to the same rules and 
 articles of war as the regular troops ; R. S. 
 § 1644. The president may specify their 
 term of service, not exceeding nine months ; 
 R. S. § 1648. When in actual service the 
 militia are entitled to the same pay as the 
 regular troops; R. S. § 1650. The militia, 
 until mustered into the United States service, 
 is considered as a state force ; 3 S. & R. 169 ; 
 5 Wheat. 1. See 1 Kent, 262; Story, Const. 
 §§1194-1210. See Military Law ; Mak- 
 TiAL Law. 
 
 MILL. A complicated engine or machine 
 for grinding and reducing to fine particles 
 grain, fruit, or other substance, or for per- 
 forming other operations by means of wheels 
 and a circular motion. 
 
 The house or building that contains the 
 machinery for grinding, etc. Webster, Diet. 
 
 Mills are so very different and various, that it 
 is not easy to give a definition of the term. They 
 are used for the purpose of grinding and pulver- 
 izing grain and other matters, to extract the 
 juices of vegetables, to make various articles of 
 manufacture. They take their names from the 
 uses to which they are employed ; hence we have 
 paper-mills, fulling-mills, iron-mills, oil-mills, 
 saw-mills, etc. In another respect their kinds 
 are various ; they are either fixed to the freehold 
 or not. Those which are a part of the freehold 
 are either water-mills, wind-mills, steam-mills, 
 etc. ; those which are not so fixed are hand- 
 mills, and are merely personal property. Those 
 which are fixed, and make apart of the freehold, 
 are buildings with machinery calculated to at- 
 tain the object proposed in their erection. , 
 
 It has been held that the grant of a mill 
 and its appurtenances, even without the land, 
 carries the whole right of water enjoyed by 
 the grantor, as necessary to its use, and as a 
 necessary incident ; Cro. Jac. 121. And a 
 devise of a mill carries the land used with it, 
 and the right to use the water ; 1 S. & R. 169. 
 And see 5 id. 107 ; 10 id. 63 ; 2 Caines, Cas. 
 87; 3 N. H. 190; 7 Mass. 6; 6 Me. 154, 
 436; 16 id. 281. 
 
 The owner of a mill, whose dam and ma- 
 chinery are suited to the size and capacity of 
 the stream, has a right to the reasonable use 
 of the water to propel his machinery ; but he 
 must detain no longer than i^ necessary for its 
 profitable enjoyment, and must return it to its 
 natural channel, before it passes upon the laud 
 of the proprietor below ; 41 Ga. 162 ; B. C. 
 5 Am. Rep. 526. See Dam. 
 
 A mill means not merely the building in 
 which the business is carried on, but includes 
 the site, the dam, and other things annexed 
 to the freehold, necessary for its beneficial 
 enjoyment ; 3 Mass. 280 ; see 6 Me. 436 ; 
 and a water power also when applied to a mill 
 
MILL 
 
 236 
 
 MINISTER 
 
 becomes a part of the mill, and is to be in- 
 cluded in the valuation ; 37 "Vt. 622. 
 
 Whether manufacturing machinery will 
 pass under the grant of a mill must depend 
 mainly on the circumstances of each case ; 1 
 Brod. & B. 506 ; Ewell, Fixt. 94. As be- 
 tween mortgagor and mortgagee, a saw-mill 
 and its appointments are prima facie part of 
 the realty, if no intent is shown to change 
 their character ; 39 Mich. 777. When an 
 estate for years was by a conveyance to the 
 lessee merged in the fee, it was held that ma- 
 chinery by him firmly annexed to the pre- 
 mises, did not, by operation of law and with- 
 out intent on his part, become a part of the 
 realty ; 76 N. Y. 23. 
 
 MILL. The tenth part of a cent in value. 
 
 MILLED MONEY. This term means 
 merely coined money ; and it is not necessary 
 that it should be marked or rolled on the 
 edges. Running's case. Leach, Cr. Cas. 708. 
 
 MIL-REIS. The name of a coin. The 
 mil-reis of Portugal is taken as money of ac- 
 count, at the custom-house, to be of the value 
 of one hundred and twelve cents. The mil- 
 reis of Azores is deemed of the value of 
 eighty-three and one-third cents. The mil- 
 reis of Madeira is deemed of the value of one 
 hundred cents ; 5 Stat, at Large, 625. 
 
 MIND AND MEMORV. A testator 
 must have a sound and disposing mind and 
 memory. In other words, he " ought to be 
 capable of making his will with an under- 
 standing of the nature of the business in 
 which he is engaged, a recollection of the 
 property he means to dispose of, of the per- 
 sons who are the object of his bounty, and 
 the manner in which it is to be distributed be- 
 tween them." Washington, J., 8 Wash. C. 
 C. 585, 586 ; 4 id. 262 ; 1 Green, Ch. 82, 
 85 ; 2 id. 563, 604 ; 26 Wend. 255, 306, 311, 
 312 ; 8 Conn. 265 ; 9 id. 105. 
 
 MINE. An excavation in the earth for 
 the purpose of obtaining minerals. 
 
 Mines may be either by excavating a por- 
 tion of the surface, or almost entirely beneath 
 the surface. 
 
 Mines of gold and silver belong to the sov- 
 ereign ; 1 Plowd. 310 ; 3 Kent, 378, n. ; and 
 it has been said that though the king grant 
 lands in which mines are, and all mines in 
 them, yet royal mines will not pass by 'so 
 general a description ; Plowd, 336. In New 
 York the state's right as sovereign was as- 
 serted at an early day, and reasserted by the 
 legislature as late as 1828; 3 Kent, 378, n. 
 In Pennsylvania the Royal Charter to Penn 
 reserved one-fifth of the precious metals as 
 rent, and the patents granted by Penn usuallv 
 reserved two-fifths of the gold and silver. An 
 act passed in 1843 declared that all patents 
 granted by the state pass the entire estate of 
 the commonwealth. In California, after much 
 discussion, it seems to be finally settled that 
 minerals belong to the owner of the soil and 
 not to the government as an incident of sov- 
 ereignty ; 1 7 Cal. 199 ; 3 WalL 304 ; 2 Black, 
 
 1 7. See Mr. Dallas's note to Bainbr. Mines 
 39. All mineral lands of the general mvi 
 ernment, both surveyed and unsurveyed, are 
 free and open to exploration and occupation 
 subject to such regulations as may be pre! 
 scribed by law, and also to local customs or 
 rules of miners when not in conflict with the 
 laws of the United States. R.S. 8 2319 See 
 94 U. S. 763. 
 
 Mines of other minerals belong to the owner 
 of the soil, and pass by a grant thereof, un. 
 less separated; 1 N. Y. 564; 19 Pick. 814- 
 but the owner may convey his mines by a 
 separate and distinct grant so as to create one 
 freehold in the soil and another in the mines ' 
 
 1 Penn. R. 726 ; 7 Cush. 361 ; 8 irf. 21 1 6 
 M. & W. 50 ; but in California, a miner will 
 not be enjoined against disturbance of crops, 
 unless the appropriation of the land was an- 
 terior to the mining location ; 23 Cal. 593. 
 
 In case of a separate ownership, the owner 
 of the mine must support the superincumbent 
 soil ; 12 Q. B. 739 ; 5 M. & W. 60 ; 12 Exch. 
 259 ; and ancient buildings or other erections: 
 
 2 H. & N. 828. 
 
 Opening new mines by a tenant is waste, 
 uuless the demise includes them; Co. Litt. 
 53 6 ; 2 Bla. Com. 282 ; 1 Taunt. 410; Hob. 
 234 ; but if the mines be already open, it is 
 not waste to work them even to exhaustion; 
 1 Taunt. 410; 19 Penn. 324; 6 Munf. 134; 
 1 Rand. 258 ; 10 Pick. 460 ; 1 Cow. 460. See 
 Smith, Landl, & T. 192, 193, n. A mort- 
 gagee has been allowed for large sums ex- 
 pended in working a mine which he had a 
 right to work ; 39 E. L. & Eq. 130 ; but in 
 another case, expenses incurred in opening a 
 mine were disallowed ; 16 Sim. 445. 
 
 In California, the occupant of public lands, 
 who holds them for agricultural purposes 
 merely, holds them subject to the right of any 
 person to dig for gold ; 5 Cal. 36, 97 ; but 
 the miner must take them as he finds them, 
 subject to prior rights of the same character; 
 5 Cal. 140, 308; 6 id. 148 ; a miner cannot 
 take private lands ; 44 Cal. 460. 
 
 An injunction lies for interference wltlt 
 mines ; 6 Ves. 147. 
 
 See Bainbridge, Collier, on Mines; 1 Kent; 
 Washb. R. P.; Washb. Easem.; Tudoi, 
 Lead. Cas. 
 
 MINERALS (_L. Lat. minera, a vein i^ 
 metal). All fossil bodies or matters dug out 
 of mines or quarries, whence any thing may 
 be dug ; such as beds of stone which niay be 
 quarried ; 14 M. & W. 859, in construing 55 
 Geo. III. c. 18 ; Broom, Leg. Max. 175*, 
 176*. 
 
 Any natural production^ formed by the no- 
 tion of chemical affinities, and organized when 
 becpming solid by the powers of crystallization. 
 Webster, Diet. But see 5 Watts, 34; 1 
 Crabb, R. P. 95. The term has been held to 
 include coal oil ; 41 Penn. 351 ; 3 Pittsb. 201. 
 
 MINISTER. In Governmental Law. 
 
 An officer who is placed near the sovweigUi 
 and is invested with the administration of 
 
MINISTER 
 
 237 
 
 MINNESOTA 
 
 some one of the principal branches of the 
 government. 
 
 Ministers are responsible to the king or 
 other supreme magistrate who has appointed 
 them. 4 Conn. 134. 
 
 In Ecclesiastical Law. One ordained 
 by some church to preach the gospel. A per- 
 son elected by a Methodist Society to be one 
 of their local preachers, and ordained as a 
 deacon of that church, is a minister of the 
 gospel, within a statute exempting ministers 
 from taxation ; 1 Me. 102. So is a person 
 ordained as a Congregational minister and in- 
 stalled as such over a town ; 2 Pick. 403. 
 
 Ministers are authorized in the United 
 States, generally, to solemnize marriages, and 
 are liable to fines and penalties for marrying 
 minors contrary to the local regulations. As 
 to the rights of ministers or parsons, see 3 Am. 
 Jur. 268 ; Shepp. Touchst. Anthon ed.,564; 
 2 Mass. 500 ; 10 id. 97 ; 14 id. 333 ; 11 Me. 
 487. 
 
 In International Law. An officer ap- 
 pointed by the government of one nation, with 
 the consent of two other nations who have a 
 matter in dispute, with a view by his inter- 
 ference and good office to have such matter 
 settled. 
 
 A name given to public functionaries who 
 represent their country with foreign govern- 
 ments, including ambassadors, envoys, and 
 residents. 
 
 A custom of recent origin has introduced a 
 new kind of ministers, without any particular 
 determination of character ; these are simply 
 called ministers, to indicate that they are In- 
 vested with the general character of a sovereign's 
 mandatories, without any particular assignment 
 of rank or character. 
 
 The minister represents his government in a 
 vague and indeterminate manner, which cannot be 
 equal to the first degree ; and he possesses all the 
 rights essential to a public minister. 
 
 There are also ministers plenipotentiary, who, 
 as they possess full powers, are of much greater 
 distinction than simple ministers. These, also, 
 are without any particular attribution of rank 
 and character, but by custom are now placed 
 immediately below the ambassador, or on a level 
 with the envoy extraordinary. Vattel, liv. 4, c. 
 5, § 74 ; 1 Kent, 48 ; Merlin, Expert. 
 
 Formerly no distinction was made in the dif- 
 ferent classes of public ministers, but the 
 modern usage of Europe introduced some dis- 
 tinctions in this respect, which, on account of 
 a want of precision, had become the source 
 of controversy. To obviate these, the con- 
 gress of Vienna, and that of Aix-la-Chapelle, 
 put an end to these disputes by classing 
 ministers as follows: — 1. Ambassadors, and 
 papal legates or nuncios. 2. Envoys, minis- 
 ters, or others accredited to sovereigns 
 (auprfes des souverains). 3. Ministers resi- 
 dent, accredited to sovereigns. 4. Charges 
 d'affaires, accredited to the minister of foreign 
 affairs. Public ministers take rank among 
 themselves, in each class, according to the date 
 of the official notification of the arrival at the 
 court to which they are accredited. R£cez 
 du Congrfes de Vienne, du 19 Mars, 1815 ; 
 
 Protocol du Congrfes d'Aix-la-Chapello, du 
 21 Novembre, 1818 ; Wheaton, Int. Law, § 
 211. 
 
 The United States sends no envoys of the 
 rank of ambassadors ; it sends ambassadors 
 and envoys extraordinary and ministers pleni- 
 potentiary, and ministers resident. 
 
 Consuls and other commercial agents are 
 not, in general, considered as public minister?. 
 
 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. 
 
 A ministerial act may be defined to be one 
 which a person performs in a given state of 
 facts, in a prescribed manner, in obedience to 
 the mandate of legal authority without regard 
 to or the exercise of his own judgment upon 
 the propriety of the acts being done. Acts 
 done out of court in bringing parties into 
 court are, as a general proposition, ministerial 
 acts ; 54 Ind. 376. See 18 How. 396 ; 40 
 Wise. 175; 49 Ala. 311. 
 
 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 10 Me. 377 ; Bacon, Abr. Justices of the 
 Peace (E) ; 1 Conn. 295 ; 3 id. 107 ; 9 id. 
 275; 12trf. 464; Mandamus. 
 
 MINISTERIAL TRUSTS (;also called 
 instrumental trusts). Those which demand 
 no further exercise of reason or understand- 
 ing than every intelligent agent must neces- 
 sarily 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 Bouvier, Inst. n. 1896. 
 
 MINITESOTA. One of the new states of 
 the United States of America. 
 
 It was created a territory by act of congress, 
 March 3, 1849, and admitted into the Union as a 
 state. May 11, 1858, under a constitution framed 
 and adopted by a convention at St. Paul, on the 
 29th day of August, 1857, pursuant to an act of 
 congress of February 26, 1857, and submitted to 
 and ratified by the people on the 13th of Octo- 
 ber, 1857. 
 
 The Mil of Bights provides that there shall 
 be neither slavery nor involuntary servitude, 
 otherwise than for the punishment of crime ; 
 that there shall be no imprisonment for debt ; 
 that a reasonable amount of property shall he 
 exempt from execution ; that all future leases of 
 agricultural lands for a longer period than 
 twenty-one years, reserving any rent, shall be 
 void ; and that no person shall be rendered in- 
 competent as a witness in consequence of his 
 religious opinions. 
 
 Tne Bight of Suffrage is vested In all male 
 persons over twenty-one years of age, who have 
 resided in the United States jme year, in the 
 state four months, and in th^ election district 
 ten days, next preceding any election, and who 
 are either citizens of the United States, persons 
 of foreign birth who have declared their inten- 
 tion to become citizens, persons of mixed white 
 
MINNESOTA 
 
 238 
 
 MINNESOTA 
 
 and Indian blood who have adopted the cus- 
 toms and habits of civilization, or persons of In- 
 dian blood who have adopted the language and 
 habits of civilization and have been pronounced 
 by any district court of the state capable of en- 
 joying the rights of citizenship. But all persons 
 convicted of any felony, not restored to civil 
 rights, and all perBonsnoncompos mentis, insane, 
 or under guardianship, are excluded. All elec- 
 tions are by ballot. No arrest by civil process 
 is allowed on any day of election. All legal 
 voters are eligible by the people to any office, ex- 
 cept as hereinafter specified. Women of the age 
 of 21 years and upwards may, if the legislature 
 so provide, vote for school officers and upon 
 school matters, and be eligible to any office per- 
 taining solely to the management of schools. 
 
 Amendments to the Constitution. A majority of 
 both branches of the legislature may submit 
 amendments to the constitution to the people, 
 which, if ratified by a majority of the voters 
 present and voting, shall be part of the consti- 
 tution. A convention may also be called for the 
 purpose of amending it. 
 
 The Legislative Depaetment. — The Senate 
 is cpmposed of a number of senators not ex- 
 ceeding one for every five thousand inhabitants, 
 elected for the term of four years by the people. 
 A senator must have resided one year in the 
 state and six months next preceding the elec- 
 tion in the district from which he is elected, and 
 must be a qualified elector. One-half the senate 
 is elected every second year, the districts num- 
 bered with odd and even numbers electing alter- 
 nately, excepting that an entire new election 
 shall be had after each new apportionment. 
 
 The Smi^e of Representatives is composed of a 
 number of representatives not exceeding one for 
 every two thousand inhabitants, elected by the 
 people for the term of two years. The qualifica- 
 tions necessary are the same as those of the sena^ 
 tors. 
 
 The constitution contains the usual provisions 
 for the organization and continuance of the two 
 houses, regulating the conduct and judging of 
 the qualifications of members, recording and 
 pulishing proceedings, securing freedom of de- 
 bate, exempting members from arrest on civil 
 process, etc. Legislative sessions to be held bi- 
 ennially ; session not to exceed sixty days. 
 
 All elections by the legislature are to be made 
 viva voce. The legislature cannot authorize a 
 lottery or the sale of lottery-tickets. The legis- 
 lature is to provide a uniform system of public 
 schools. The proceeds of certain lands are 
 secured as a permanent school fund, the income 
 of which the legislature is to distribute among 
 the townships, in proportion to the number of 
 scholars therein between the ages of 5 and 31 years. 
 The legislature cannot create a corporation by 
 Spe<!ial act for any but municipal purposes. It 
 may pass a general banking law ; may not sus- 
 pend specie payments ; must provide that all 
 banks shall hold state or United States stocks as 
 security for their notes. It may, by vote of two- 
 thirds in both houses, contract a debt for extra- 
 ordinary expenses, not exceeding two hundred 
 and fifty thousand dollars. A tax must be levied 
 each year large enough to pay the expenses of 
 that year and cover the deficiency of the preced- 
 ing year if any exists. Provision must be made 
 at the time of creating any debt for the payment 
 of interest and its extinction in ten years. 
 f 
 
 The Executive Powee. — The Governor is 
 elected by the people for the terra of two years. 
 He must have attained the age of twenty-five, be 
 a citizen of the United States, and have resided 
 
 in the state for one year next preceding his elec- 
 tion. He is commander-in-chief of the militarr 
 and naval forces ; informs the legislature at each 
 session of the condition of the country ; may re- 
 quire the written opinion of the heads of the de- 
 partraent* on subjects relating to their respective 
 offices ; may grant reprieves and pardons, except 
 in cases of impeachment ; may, with the consent 
 of the senate, appoint a state librarian and 
 notaries public ; and may appoint commissioners 
 to take acknowledgments of deeds. He is in- 
 vested with the veto power, may call extra ses- 
 sions of the legislature, shall see that the laws 
 are executed, and may fill vacancies that may 
 occur in the office of secretary of state, trelbsnrer 
 auditor, attorney-general, and other state and 
 district offices hereafter to be created by law, 
 until the next annual election, and order elec- 
 tions to fill vacancies in the legislature. 
 
 The Lievienant- Governor is elected at the same 
 time, for the same term, and must possess the 
 same qualifications as the governor. He presides 
 over tlie senate, and acts as governor during any 
 vacancy occurring in that office. A president pro 
 tempore of the senate is elected at the close of 
 each session by the senate, who becomes lienten- 
 ant-governor in case of vacancy in that office. 
 
 The Judicial Power. — This is vested in a 
 supreme court, district court, courts of probate, 
 and justices of the peace ; but the legislature 
 may, by a two-thirds vote, establish other inte- 
 rior courts, of which the judges must be elected, 
 for a term not longer than seven years, by the 
 electors of the district for which the courts are 
 created. 
 
 The Supreme Court consists of one chief and 
 four associate justices, elected by the people of 
 the state at large for the term of seven years. 
 Its original jurisdiction is prescribed by law, and 
 it has appellate jurisdiction in all cases both in 
 law and equity, but holds no jury terms. 
 
 The District Court consists of fifteen judges, 
 elected by the voters of their respective districts 
 for a term of seven years. The state is divided 
 into twelve districte, one of which has three 
 judges, another two, and the remainder one 
 judge each. Each judge holds the court in hie 
 own district, exceptwhere convenience or the pub- 
 lic interests require otherwise, when the judges 
 may exchange services. One or more terms of the 
 court are held in each county per annum. It 
 has original jurisdiction in all civil cases where 
 the amount involved exceeds one hundred dol- 
 lars, the distinction between suits at law and in 
 equity being abolished, and in all criminal cases 
 where the penalty is three months' imprisonment 
 or more, or where a fine of more than one hun- 
 dred dollars is imposed, and- such appellate juris- 
 diction as may be conferred by law. It has 
 power, also, to change the names of people, 
 towns, or counties. 
 
 A Probate Court is held in each organised 
 county in the state, by a judge elected by the 
 people of the county for the term of two years. 
 The judge must be a resident of the county at 
 the time of his election, and continue to he 
 during his term. The court has jurisdiction 
 over the estates of decedents, and over persons 
 under guardianship. 
 
 Justwes of the Peace are elected, two for each 
 town (subject to variation by law), by the peo- 
 ple, for the term of two years. They have jun^ 
 diction in civil cases where the amount inyolvca 
 is one hundred dollars or less, and in criminsl 
 cases where the criminal is imprisoned for three 
 months or less, or a fine not exceeding one hun- 
 dred dollars. They have no jurisdiction in any 
 case involving the title to real estate. 
 
MINOR 
 
 239 
 
 MISBEHAVIOR 
 
 MINOR (Lat. less; younger). A minor; 
 one not a major, i. e. not twenty-one. Co. 
 2d Inst. 291; Co. Litt. 88, 128, 172 6; 6 
 Co. 67; 8 Bulstr. 143; Bracton, 340 6; 
 Fleta, 1. 2, c. 60, § 26. 
 
 Of less consideration ; lower. Calvinus, 
 Lex. Major and minor belong rather to civil 
 law. The common-law terms are adult and 
 infant. 
 
 MINORITY. The state or condition of 
 a minor ; infancy. See Pcll Age. 
 
 The smaller number of votes of a delibera^ 
 tive assembly: opposed to majority, which 
 see. 
 
 MINT. The place designated by law 
 where money is coined by authority of the 
 government of the United States. 
 
 The mint was established by the act of 
 April 2, 1792, 1 Story, U. S. Laws, 227, and 
 located at Philadelphia. There are mints of 
 the United States now (1882) at Philadel- 
 phia, San Francisco, New Orleans, Carson, 
 and Denver. R. S. § 3495. See 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. 
 
 In the computation of time, a minute is 
 equal to sixty seconds, or the sixtieth part of 
 an hour. See Mbascre. 
 
 In Practice. A memorandum of what 
 takes place in court, made by authority of 
 the court. From these minutes the record is 
 afterwards made up. 
 
 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 
 (seriptura') , in opposition to copies which were 
 delivered to the parties, and which were always 
 written in a larger hand. 8 Toullier, n. 413. 
 
 Minutes are not considered as any part 
 of the record. 1 Ohio, 268. See 23 Piclc. 
 184. 
 
 Of Corporate Meetings. It is usual 
 for boards of directors of corporations to keep 
 a regular record in writing of their proceed- 
 ings. It has been said that such a record is 
 essential either to the proof or validity of 
 their acts and contracts. Such may be the 
 case if the charter makes the keeping of such 
 a record essential to the validity of corporate 
 acts. But in the absence of a provision di- 
 recting the keeping of such records, there ap- 
 pears to be no reason for any distinction be- 
 tween recording in writing the acts of a board 
 of agents of a corporation, and of the agents 
 of a natural person. Provisions in charters 
 directing that minutes be kept are merely 
 directory ; a failure to keep them does not 
 affect the validity of corporate acts; 12 
 Wheat. 75; Ang. & A. Corp. 291 a; Green's 
 Brice, Ultra Vires, 522, n. b. See 96 U. S. 
 271. When such records are kept, they are 
 the best evidence of the proceedings of a 
 meeting ; but if no minutes were kept, or if, 
 in a suit against the corporation, and upon { 
 
 notice, the corporation neglects or refuses to 
 produce its books, other evidence is admissi- 
 ble ; 32Vt. 633; 111 Mass. 315; Ang. & A. 
 Corp. 291 a. 
 
 MINUTE-BOOK. A book kept by the 
 clerk or prothonotary of a court, in which 
 minutes of its proceedings are entered. 
 
 MINUTE TITHES. Small tithes, 
 usually belonging to the vicar : e. g. eggs, 
 honey, wax, etc. 3 Burn, Eccl. Law, 680 ; 
 6 & 7 Will. IV. c. 71, §§ 17, 18, 27. 
 
 MIRROR DBS JUSTICES. The Mir- 
 ror of Justices, a treatise written during the 
 reign of Edward II. Andrew Home is its 
 reputed author. But it has been thought that 
 the germ of it was written before the Con- 
 quest and that Home only made additions to 
 it; Marv. Leg. Bibl. 396. It was first pub- 
 lished in 1642, and in 1768 it was translated 
 into English by William Hughes. Some di- 
 versity of opinion seems to exist as to its 
 merits. Pref. to 9 & 1 Co. Rep. As to the 
 history of this celebrated book, see St. Ar- 
 mand's Hist. Essays on the Legislative Power 
 of England, 58, 59 ; 2 Reeve, Hist. 358 ; 4 
 id. 116, n. 
 
 MISADVENTURE. An accident by 
 which an injury occurs to another. 
 
 When applied to homicide, misadventure is the 
 act of a man who, in the performance of a law- 
 ful 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 matem prohibitum. The usual 
 examples under this head are : 1, when the 
 death ensues from innocent recreations ; 3, from 
 moderate and lawful correction in foro domes- 
 tico ; 3, from acts lawful and indiiierent in 
 themselves, done with proper and ordinary cau- 
 tion. 4 Bla. Com. 182 ; 1 East, PI. Cr. 231. See 
 Homicide ; Manslaughter ; Corbection. 
 
 MISBEHAVIOR. Improper or unlawful 
 conduct. See 2 Mart. La. N. s. 683. 
 
 A party guilty of misbehavior, as, for ex- 
 ample, to threaten to do injury to another, 
 may be bound to his good behavior, and thus 
 restrained. 
 
 Verdicts are not unfrequently set aside on 
 the ground of misbehavior 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; 
 see Jury ; New Trial ; when they cast lots 
 for. a verdict ; 2 Lev. 205; or give their ver- 
 dict, 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 jur- 
 ors, and giving their verdict for the quotient. 
 15 Johns. 87. See Bacon, Abr. Verdict 
 (H); Lot. 
 
 A verdict will be set aside if the successful 
 party has been guilty of any misbehavior 
 towards the jury : as, if he say to a juror, "I 
 hope you will find a verdict for me," or, 
 
MISCARRIAGE 
 
 240 
 
 MISDIRECTION 
 
 "The matter is clearly of my side." 1 
 Ventr. 125; 2 RoUe, Abr. 716, pi. 17. See 
 Code, 166, 401 ; Bacon, Abr. Verdict (I). 
 
 MISCARRIAGE. In Medical Juris- 
 prudence. Tlie 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; 
 Chitty, Med. Jur. 410; 2 Dungl. Hum. 
 Phys. 364. See Aboution; FcETua. 
 
 In Practice. A term used in the Statute 
 of Frauds to denote that species of wrongful 
 act for the consequences of which the wrong- 
 doer would be responsible at law in a civil 
 action. 
 
 By the English Statute of Frauds, 29 Car. 
 II. c. 3, § 4, it is enacted that "no action 
 shall be brought to charge the defendant upon 
 any special promise to answer for the debt, 
 default, or miscarriage of another person, 
 unless the agreement," etc. "shall be in 
 writing," etc. 
 
 The wrongful riding the horse of another, 
 without his leave or license, and thereby 
 causing his death, is clearly an act for which 
 the party is responsible in damages, and, 
 therefore, falls within the meaning of ^he 
 word miscarriage : 2 B. & Aid. 516 ; Burge, 
 Sur. 21. 
 
 MISCASTING-. An error in auditing 
 and numbering. It does not include any pre- 
 tended miscasting or misvaluing. 4 Bouvier, 
 Inst. n. 4128. 
 
 MISCEGENATION (Lat. miscere, to 
 mix, and genere, to beget). A mixture of 
 races. The intermarriage of persons belong- 
 ing to the white and black races. In many 
 of the states this is prohibited by statute. 
 The constitutionality of such statutes has been 
 repeatedly affirmed ; 3 Tex. Ct. App. 263 ; 
 s. C. 30 Ai)i. Rep. 131; 30 Gratt. 658; 3 
 Heisk. 287. It has been further held- that 
 a statute denouncing a severer penalty on 
 persons of the two races living together in 
 adultery, than that prescribed for a like 
 offence between persons of the same race, 
 is constitutional; 58 Ala. 190; 8. C. 29 Am. 
 Rep. 739 ; 2 Whart. Or. L. § 1754. 
 
 MISCOGNIZANT. Ignorant, or not 
 knowing. Stat. 32 Hen. VIII. c. 9. Little 
 used. 
 
 MISCONDUCT. Unlawful behavior by 
 a person intrusted in any degree with the ad- 
 ministration of justice, by which the rights of 
 the parties and the justice of the case may 
 have been affected. 
 
 A verdict will be set aside when any of the 
 jury have been guilty of such misconduct ; 
 and a court will set aside an award if it have 
 been obtained by the misconduct of an arbitra- 
 
 tor; 2 Atk. 501, 604; 2 Chitt. Bail, 44- j 
 Salk. 71 ; 3 P. Wms. 362 ; 1 Dick. 66. ' 
 
 MISCONTINUANCE. luFracticd. A 
 continuance of a suit by undue process. I(j 
 efi'ect is the same as a discontinuance. 2 
 Hawk. PI. Cr. 299 ; Kitch. 231 ; Jenk. Cent 
 Cas. 57. 
 
 MISDEMEANOR. In Criminal Law. 
 A term used to express every offence inferior 
 to felony, punishable by indictment, or by 
 particular prescribed proceedings. In its 
 usual acceptation, it is applied to all those 
 crimes and offences for which the law has not 
 provided a particular name. 
 
 The word is generally used in contradis. 
 tinction to felony ; misdemeanors compre- 
 hending all indictable offences which do not 
 amount to felony, as perjury, battery, libels, 
 conspiracies, and public nuisances, hut not 
 including a multitude of offences over which 
 magistrates have an exclusive summary juris- 
 diction, for a brief designation of which out 
 legal nomenclature is at fault Misdemean- 
 ors have sometimes been called misprisions. 
 See 1. Bish. Cr. L. § 624. 
 
 MISDIRECTION*. In Practice. An 
 
 error made by a judge in charging the jury in 
 a special case. 
 
 It is a rule, subject to the qualifications 
 hereafter stated, that when the judge at the 
 trial misdirects the jury on matters of law 
 material to the issue, whatever may be the 
 nature of the case, the verdict will be set 
 aside, and a new trial granted ; 6 Mod. 242 ; 
 2 Salk. 649 ; 2 Wils. 269 ; 4 Conn. 356 ; 59 
 Penn. 371 ; or, if such misdirection appearin 
 the bill of exceptions, or otherwise upon the 
 record, a judgment founded on a verdict thus 
 obtained will be reversed. And although the 
 charge of the court be not positively errone- 
 ous, yet, if it have a tendency to mislead 
 the jury, and it be uncertain whether they 
 would have found as they did if the instruc- 
 tions had been entirely correct, a new trial 
 will be granted : 1 1 Wend. 83 ; 6 Cow. 682 ; 9 
 Humph. 411 ; 9 Conn. 107. Whentheissue 
 consists of a mixed question of law and fact, 
 and there is a conceded state of facts, the 
 rest is a question for the court ; 2 Wend. 696 ; 
 and a misdirection in this respect will avoid 
 the verdict. In England, under the Judica- 
 ture Act of 1875, a new trial will not be 
 granted on the ground of misdirection or 
 of the improper admission or rejection o£ 
 evidence, unless in the opinion of the court, 
 to which the application is made, some sub- 
 stantial wrong or miscarriage has been there- 
 by occasioned in the trial of the action ; and 
 if it appear that such wrong or miscarriage af- 
 fects part only of the matter in controversy, 
 the court may give final judgment as to part 
 thereof, and direct a new trial as to the other 
 part only ; 1 Sched. Ord. xxxix. v. 3 ; L. »■ 
 10 Stat. 1875, 817. 
 
 Misdirection as to matters of fact W") '" 
 some cases, be sufficient to vitiate the pro- 
 ceedings. For example : misapprehension ol 
 
MISB 
 
 241 
 
 MISJOINDER 
 
 the judge as to a material circumstance, and a 
 direction to the jury accordingly ; 1 Const. 
 So. C. 200 ; or instructing them upon facts 
 which are purely hypothetical, whereby they 
 are misled; 8 Ga. 114; submittin" as aeon- 
 tested point what has been admitted ; 9 Conn. 
 216 ; giving to the jury a peremptory direc- 
 tion to find in a given way, when there are 
 facts in the case conducing to u different 
 conclusion; 7 J.J. Marsh. 410; 3 Wend. 
 102; 19 id. 402; 12 Mass. 22; 5 Humphr. 
 47fi. There are, however, many cases in 
 which the court may instruct the jury, upon 
 the whole evidence, to find for one or the other 
 party ; and when a verdict formed under such 
 instruction is conformable to the law, the evi- 
 dence, and the justice of the case, it is rarely 
 disturbed; 3 Dana, 566. But to warrant an 
 unqualified direction to the jury in favor of a 
 party, the evidence must either be undisputed 
 or the preponderance so decided that a verdict 
 against it would be set aside ; 16 Wend. 663. 
 When the court delivers its opinion to the 
 jury on a matter of fact, it should be as opin- 
 ion, and not as direction; 12 Johns. 513. 
 But it is, in general, allowed a very liberal 
 discretion in this regard ; 1 M'Cl. & Y. 286. 
 Where the question is one of mere fact, no 
 expressions of the judge, however strong or 
 erroneous, will amount to a misdirection, pro- 
 vided the question is fairly presented to the 
 jury and left with them for their decision ; 5 
 Scott. 28; 4 Moore & S. 295; 19 Wend. 186; 
 10 Pick. 252. 
 
 Unless the misdirection be excepted to, the 
 party by his silence will be deemed to have 
 waived it; 10 Mo. 515; 2 Pick. 145. But 
 see 4 Wend. 514 ; 2 Barb. 420. 
 
 As to its effects, the misdirection must be 
 calculated to do injustice ; for if it be entirely 
 certain that justice has been done, and that 
 a re-hearing would produce the same result, 
 or if the amount in dispute be very trifling, 
 so that the injury is scarely appreciable, a new 
 trial will not be granted ; 2 Caines, 85 ; 7 
 Me. 442 ; 10 Ga. 429 ; 3 Grab. & W. New 
 Tr. 705-873; Hill. New Tr. 96; New 
 Tkial; Charge. 
 
 MISE (Lat. miitere, through the French 
 mettre, to place). In Pleading. The issue 
 in a writ of right. The tenant in a writ of 
 right is said to join the mise on the mere right 
 when he pleads that his title is better than the 
 demandant's ; 2 Wms. Saund. 45, h, i. It was 
 equivalent to the general issue ; and every 
 thmg except collateral warranty might be 
 given in evidence under it by the tenant; 
 Booth, Real Act. 98, 114; 3 Wils. 420; 7 
 Wheat. 31; 3 Pet. 133; 7 Cow. 52; 10 
 Gratt. 350. The prayee in aid, on coming 
 into court, joined in the mise together with 
 the tenant ; 2 Wms. Saund. 45, d, note. It 
 was more common practice, however, for the 
 demandant to traverse the tenant's plea 
 when the cause could be tried by a common 
 jury instead of the grand assize. 
 
 In Practice. Expenses. It is so commonly 
 used in the entries of judgments, in personal 
 Vol. II.— 16 
 
 actions : as, when the plaintiff recovers, the 
 judgment is quod recuperet damna sua (that 
 he recover his damages), and pro mists et cus- 
 tagiis (for costs and charges) so much, etc. 
 
 MISERABILE! DEPOSITUM (Lat.). 
 In Civil Lavir. The name of an involuntary 
 deposit, made under pressing necessity : as, 
 for instance, shipwreck, fire, or other inevita- 
 ble calamity. Pothier, Proc. Civ. pt. 5, ch. 
 1, § 1 ; La. Code, 2935. 
 
 MISERICORDIA (Lat.). An arbitrary 
 or discretionary amercement. 
 
 To be in mercy is to be liable to such pun- 
 ishment as the judge may in his discretion 
 inflict. According to Spelman, misericordia 
 is so called because the party is in mercy, and 
 to distinguish this fine from redemptions, or 
 heavy fines. Spelman, Gloss. See Co. Litt. 
 126 i; Madox, 14. 
 
 MISFEASANCE. The performance of 
 an act which might lawfully be done, in an 
 improper manner, by which another person 
 receives an injury. 
 
 It differs from malfeasance or nonfeasance. 
 See, generally, 2 Viner, Abr. 35 ; 2 Kent, 
 443 ; Doctrina Plac. 62 ; Story, Bailm. § 9. 
 
 It seems to be settled that there is a dis- 
 tinction between misfeasance and nonfeasance 
 in the case of mandates. In cases of non- 
 feasance the mandatory is not generally liable, 
 because, his undertaking being gratuitous, 
 there is no consideration to support it ; but in 
 cases of misfeasance the common law gives a 
 remedy for the injury done, and to the extent 
 of that injury; 5 Term, 143 ; 4 Johns. 81 ; 
 2 Johns. Cas. 92 ; 1 Esp. 74 ; 2 Ld. Raym. 
 909; 33 Conn. 109; Story, Bailm. § 165; 
 Bouvier, Inst. Index. 
 
 MISJOINDER. In Pleading. The im- 
 proper union of parties or causes of action in 
 one suit at law or in equity. 
 
 Of Actions. The joining several demands 
 which the law does not permit to be joined, 
 to enforce by one proceeding several distinct, 
 substantive rights of recovery. Gould, PI. c. 
 
 4, § 98 ; Archb. Civ. PI. 61 ; Dane, Abr. 
 In equity, it is the joinder of different and 
 
 distinct claims against one defendant ; 1 M. 
 '& C. 608; 7 Sim. 241; 3 Barb. Ch. 432; 
 and is distinguished from multifariousness, 
 which may exist only where there are several 
 defendants disconnected with each other; 
 Story, Eq. PI. § 297, n. The grounds of 
 suit must be wholly distinct, and each ground 
 must be suflicient, as stated, to sustain a bill .; 
 
 5 Ired. Eq. 313. See 21 Ala. N. s. 252; 9 
 Ga. 278 ; 3 Md. Ch. Dec. 46 ; 22 Conn. 171. 
 
 It may arise from the joinder of plaintiffs 
 who possess distinct claims; 2 Sim. 331 ; 6 
 Madd. 94; 8 Pet. 123; but see 6 Johns. Ch. 
 150; 8 Paige, Ch. 605; or the joinder <rf 
 distinct claims of the plaintiff in one bfll ; 2 
 
 5. & S. 79. But it seems that where there is 
 a common liability of the defendants and a 
 common interest in the plaintiffs, different 
 claims may be united in the same suit ; 1 M. 
 
 6 C. 623 ; 3 id. 85 ; 5 How. 127 ; 12 Mete. 
 
MISKENNING 
 
 242 
 
 MISPRISION 
 
 323. And see 7 Sim. 241; 3 Price, 164; 2 
 Y. & C. 889; Story, Eq. PI. § 536, n.; 
 
 MOLTIFARIOUSNESS. 
 
 At law, misjoinder vitiates the entire decla- 
 ration, whether taken advantage of by gene- 
 ral demurrer ; 1 Maule & S. 355 ; motion in 
 arrest of judgment, or writ of error ; 2 B. & P. 
 424 ; 4 Term, 347. It may be aided by ver- 
 dict in some cases; 2 Lev. 110; 11 Mod. 
 196; 2 Maule & S. 533; 1 Chitty, PI. 188. 
 
 Of Parties. The joining, as plaintiffs or 
 defendants, parties who have not a joint in- 
 terest. 
 
 In England, under the Judicature Act, 
 1875, by order xvi. v. 13, no action is to be 
 defeated by the misjoinder of the parties. 
 Different causes of action which cannot be 
 tried together conveniently may be ordered by 
 the court or a judge to be tried separately. 
 Mozl. & W. Diet. 
 
 In equity, the joinder of improper plaintiffs 
 is a fatal defect ; 2 Sandf. Ch. 186; 3 Edw. 
 Ch. 48 ; 2 Ala. n. s. 406. But the court 
 may exercise a discretion whether to dismiss 
 the bill; 1 Barb. Ch. 59; 3 Ohio St. 129. 
 See 6 Fla. 110. It may be dismissed wholly, 
 or only as to a portion of the plaintiffs ; 1 8 
 Ohio, 72. The improper joinder of defen- 
 dants is no cause of objection by a co-defen- 
 dant; 2 Barb. Ch. 618; 6 Ired. Eq. 62; 7 
 Ala. N. S. 362 ; 12 Ark. 720 ; 23 Me. 269. 
 See 7 Conn. 387. 
 
 The objection must be taken before the 
 hearing ; 15 How. 546 ; 2 Hill, Ch. 566 ; 4 
 Paige, Ch. 51 ; not, however, if it be vital ; 
 30 N. H. 433 ; by demurrer, if apparent on 
 the face of the bill ; 9 Paige, Ch. 410 ; 7 Ala. 
 N. 8. 362 ; but see 5 III. 424 ; by plea and 
 answer ; or otherwise ; 13 Pet. 359 ; 1 T. B. 
 Monr. 105. A defendant who is improperly 
 joined must plead or demur ; 1 Mo. 410. At 
 law, see Abatement ; Pleading. 
 
 MISKENNINa (Fr. mis, wrong, and 
 Sax. cennan, summon). A wrongful citation 
 to appear in court. A variance in a plea. 1 
 Mon. Angl. 237 ; Chart. Hen. II.; Jacob, 
 Law Diet. ; Du Cange. 
 
 MISNOMER. The use of a wrong name. 
 
 In contracts, a mistake in the name will not 
 avoid the contract, in general, if the party can 
 be ascertained ; 11 Co. 20 ; Ld. Kaym. 304 ; 
 Hob. 125. So of contracts of corporations; 2 
 Beasl. 427. If a deed, note, etc. be made to 
 a corporation under an erroneous name, the 
 proper course is for the corporation to sue in 
 its proper name and allege that the defendant 
 made the deed, etc. to the corporation by the 
 name mentioned in the instrument; 69111. 658. 
 
 A misnomer of a legatee will not, in gene- 
 ral, avoid a legacy, when the context fur- 
 nishes the means of correction. See 19 Ves. 
 381 ; 1 Rop. Leg. 181 ; Legacy. A legacy 
 given to a corporation either by its corporate 
 name, or by description, is good ; in the latter 
 case it must be so designated as to be distin- 
 guished from every other corporation ; 10 N. 
 ,y. 84. See 45 Me. 552 ; 37 Ala. 478. 
 
 When a corporation is misnamed in a 
 
 statute, the statute is not inoperative if there 
 is enough to designate what corporation is 
 meant ; 10 Co. 44, 67 6. 
 
 Misnomer of one of the parties to a suit 
 must be pleaded in abatement. It has been 
 held that misnomer of one of the partners of 
 a firm in a scire facias sur mortgatre is nn. 
 important, if the name of the firm fs correct 
 in the mortgage itself; 64 Penn. 63. A 
 slight variation in a corporate name will be 
 disregarded unless the misnomer be taken ad- 
 vantage of by a plea in abatement ; 30 111. 
 151; 19Mich. 196. If a corporation, sued by 
 an erroneous name, appears by that name 
 without objection, the error is cured ; Taney 
 418. But a writ of mandamus issued against 
 a corporation under an erroneous name is 
 void; 2 Ld. Raym. 1238; and an error in 
 the corporate name in an execution is fatal ; 
 58 Ga. 280. The same is true when there Is 
 an error in the corporate name in a judgment ; 
 
 1 Ld. Raym. 117 ; but see 11 Mass. 138. 
 The names of third persons must be cor- 
 rectly laid ; for the error will not be helped 
 by pleading the general issue ; but, if a suffi- 
 cient description be given, it has been held, 
 in a civil case, that the misnojner was imma- 
 terial. Example: in an action for medicines 
 alleged to have been furnished to defendant's 
 wife, Mary, and his wife was named Eliza- 
 beth, the misnomer was held to be immaterial, 
 the word wife being the material word; 
 
 2 Marsh. 159. In indictments, the names of 
 third persons must be correctly given ; Rose. 
 Cr. Ev. 78. If a person is well known by 
 the name in the indictment, the indictment is 
 good ; 7 Am. L. Reg. n. s. 445 ; the middle 
 name of a defendant, if stated in an indict- 
 ment, either in full or by the initial letter, 
 must be correctly stated ; 1 Am. L. Keg. 880. 
 Accuracy is especially required in stating the 
 correct name of a corporation in all criminal 
 proceedings in which it may be concerned ; 1 
 Leach, 253; but see 35 Cal. 110. SeeArchh. 
 Chitty, PI. ; Abatement ; Contkact ; 
 Parties ; Legacy ; Name. 
 
 MISPLEADING. Pleading incorrectly, 
 or pmitting any thing in pleading which ises- 
 senitial to the support or defence of an action, 
 is so called. 
 
 Pleading not guilty to an action of debt u 
 an example of the first ; setting out a defect- 
 ive title is an example of the second. See 8 
 Salk. 365. 
 
 MISPRISION. In Criminal Law. A 
 term used to signify every considerable mis- 
 demeanor which has hot a certain namegiTcn 
 to it by law. Co. 3d Inst. 36. 
 
 The concealment of a crime. 
 
 Negative misprision consists in the conceal- 
 ment of something which ought to be revealed. 
 
 Misprision of felony is the like concealment 
 of felony, without giving any degree of main- 
 tenance to the felon ; Act of Congress of Apnl 
 30, 1790, s. 6, R. S. § 5390; for if any aiil 
 be given him, the party becomes an accessory 
 after the fact. , 
 
 Misp-ision of treason is the concealment ot 
 
MISREADING 
 
 243 
 
 MISSISSIPPI 
 
 treason by being merely passive. Act of 
 Congress of April 80, 1790, R. S. § 5333 ; 
 1 East, Fl. Cr. 139. If any assistance be 
 given to the traitor, it makes the party a 
 principal, as there are no accessories in treason. 
 
 Positioe misprision consists in the commis- 
 sion of something which ought not to be done. 
 4 Bla. Com. c. 9. 
 
 It is the duty of every good citizen, know- 
 in" of a treason or felony having been com- 
 mitted, to inform a magistrate. Silently to 
 observe the commission of a felony, without 
 using any endeavors to apprehend the offender, 
 is a misprision. 1 Russ. Cr. 43 ; 1 Bish. Cr. 
 L. § 720 ; Hawk. PI. Cr. c. 59, s. 6 ; 4 Bla. 
 Com. 119. 
 
 Misprisions which are merely positive are 
 denominated contempts or high misdemean- 
 ors : as, for example, dissuading a witness 
 from giving evidence. 4 Bla. Com. 126. 
 
 MISREADINQ. When a deed is read 
 falsely to an illiterate or blind man who is a 
 party to it, such false reading amounts to a 
 fraud, because the contract never had the as- 
 sent of both parties ; 5 Co. 19 ; 6 Bast, 309 ; 
 Dane, Abr. e. 86, a. 3, § 7 ; 2 Johns. 404 ; 
 
 12 id. 469 ; 3 Cow. 537. See 14 Penn. 496 ; 
 82 id. 203. 
 
 MISRECITAL. The incorrect recital of 
 a matter of fact, either in an agreement or a 
 plea : under the latter term is here understood 
 the declaration and all the subsequent plead- 
 ings. See Recital. 
 
 MISREPRESENTATION. The state- 
 ment made by a party to a contract that a 
 thing relating to it is in fact in a particular 
 way, when he knows it is not so. 
 
 The misrepresentation must be both false 
 and fraudulent in order to make the party 
 making it responsible to the other for dam- 
 ages; 3 Conn. 413 ; 10 Mass. 197; 1 Const. 
 So. C. 328, 475 ; Mete. Yelv. 21 a, n. 1 ; 
 Peake, Cas. 115; 3 Campb. 154; Marshall, 
 Ins. b. 1, c. 10, s. 1. And see 5 Maule & S. 
 380; 12 East, 638; 3 B. & P. 370. Misre- 
 presentation as to a material part of the con- 
 sideration will avoid an executory contract ; 
 1 Phill. Ins. §§ 630, 675. 
 
 A misrepresentation, to constitute fraud, 
 must be contrary to fact ; the party making 
 it must know it to be so; 2 Kent, 471 ; 1 
 Story, Eq. Jur. § 142 ; 4 Price, 135 ; 3 Conn. 
 597 ; 22 Me. 511 ; 7 Gratt. 64, 239 ; 6 Ga. 
 458; 5 Johns. Ch. 182; 6 Paige, Ch. 197; 
 
 1 Stor. 172; 1 W. & M. 342; excluding cases 
 of mere mistake; 5 Q. B. 804; 9 id. 197 ; 
 10 M. & W. 147; 14 id. 651; 7 Cra. 69; 
 
 13 How. 211 ; 8 Johns. 25 ; 7 Wend. 10; 1 
 Mete. Mass. 1 ; 27 Me. 309 ; 7 Vt. 67, 79; 
 6 N. H. 99; and including cases where he 
 falsely asserts a personal knowledge ; 18 Pick. 
 96; 1 Mete. Mass. 193; 6 id. 245; 27 Me. 
 309; 16 Wend. 646; 16 Ala. 785; 1 Bibb, 
 244; 4 B. Monr. 601; 3 Cra. 281; and one 
 which gave rise to the contracting of the other 
 party; 14 N. H. 331 ; 1/ W. & M. 90, 342 ; 
 
 2 id. 298 ; 2 Strobh. Eq. 14 ; 2 Bibb, 474 ; 
 
 8 B. Monr. 23 ; 4 How. Miss. 435; 6 id. 311 ; 
 25 Miss. 167; 3 Cra. 282; 3 Yerg. 178; 19 
 Ga. 448 ; 5 Blackf. 18. See 12 Me. 262 ; 13 
 Pet. 26 ; 28 Wend. 260 ; 7 Barb. 65. 
 
 In the absence of any bad faith, a principal 
 is not affected by a representation made by 
 his agent, which the former knows to be un- 
 true, as he would be by a fraudulent represen- 
 tation made either by himself or his agent ; 
 2 Kent, 621, n. ; 1 H. L. C. 615 ; 2 Macy, 
 145; 6 M. & W. 358; contra, 21 Vt. 129; 
 8 id. 98 ; 3 Q. B. 58. See Benj. Sales, 
 §445; Broom, Leg. Max. 707. . Where a 
 purchaser has been induced to buy through 
 the fraud of an agent, the vendor being inno- 
 cent, he may rescind the contract or maintain 
 an action of deceit against the agent personally, 
 but against the principal he can maintain no 
 action unless there was a warranty ; Benj. 
 Sales, ? 467, notes. See 3 Am. L. "Rev. 
 430; Bigel. L. C. Torts, 21 ; 16 Gray, 436. 
 
 MISSING SHIP. A ship which has 
 been at sea and unheard from for so long a 
 time as to give rise to the presumption that 
 she has perished with all on board. 
 
 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 Stra. 
 1199; Park. Ins. 63; Marsh. Ins. 488; 2 
 Johns. 150; 1 Caines, 525; Holt, 242. 
 
 MISSISSIPPI. The name of one of the 
 new states of the United States. 
 
 The territory of Mississippi, embracing the 
 present states of Alabama and Mississippi, was 
 authorized to be organized by act of congress, 
 of April 9, 1778, and organized on 22d January, 
 1779. Georgia, from which the territory was 
 formed, ceded it to the United States on April 
 24, 1802. 
 
 The western part of the Mississippi territory 
 was authorized to form a state government to be 
 linown as the state of Mississippi, by act of con- 
 gress passed March 1, 1817, and the state was 
 admitted into the Uilion December 10, 1817. 
 
 The first constitution of the state was adopted 
 at Washington, August 15, 1817. 
 
 The second, at Jaclcson, October 26, 1832. 
 This was amended in August, 1865, so as to 
 strike out the word " white," and to abolish and 
 to eliminate everything connected with the insti- 
 tution of slavery. 
 
 The third, at Jackson, on May 15, 1868 ; rati- 
 fied by the people on December 1, 1869, and 
 went into operation in 1870, on the readmission 
 of the state into the Union under the Recon- 
 struction Acts of congress. 
 
 Suffrage. All male citizens of the United 
 States, of the age of twenty-one years and up- 
 wards, who have resided in the state six mouths, 
 and in the county one month next preceding an 
 election, and who are registered as required by 
 the constitution, are qualified electors. Convic- 
 tion for bribery, perjury, forgery, or other high 
 crime or misdemeanor, disqualifies an elector. 
 Atheists are disqualified from holding office, and 
 those convicted of having given or offered a bribe 
 to procure an election or appointment. No pro- 
 perty qualification for elegibility to office shall 
 ever be required ; and no property or educational 
 qualification for an elector. 
 
 The Legislative Power. — ^This is vested in 
 the senate and house of representatives. Their 
 
MISSISSIPPI 
 
 244 
 
 MISSISSIPPI 
 
 action, except in impeachment trials, is subject 
 to executive veto. 
 
 The Senate is composed of members elected 
 by the qualified electors of the several districts, 
 for the term of four years, who are apportioned 
 according to the number of qualified electors in 
 the several districts, so as to be not less than one- 
 fourth nor more than one third of the whole num- 
 ber of representatives. One half of the senate is 
 changed every two years. A senator must have 
 attained to the age of twenty-five, must be an 
 Inhabitant of the state for one year, and an 
 actual resident of the district from which he is 
 chosen. 
 
 The H<mse of Sepresentativet is composed of 
 members elected biennially by the qualified 
 electors of the several counties. The members 
 of the house of representatives must be twenty- 
 one years of age at least, and actual residents of 
 the county from which chosen ; and are appor- 
 tioned among the several counties according to 
 the number of qualified electors, not to be less 
 than one hundred, nor more than one hundred 
 and twenty. 
 
 Each house appoints its own officers, and 
 judges of the qualification, return, and election 
 of its members. 
 
 The senate is presided over by the lieutenant- 
 governor, who is elected by the people at the 
 same time and for the same term as the gov- 
 ernor. It shall choose a president pro tempore, 
 to act in the absence or disability of the lieuten- 
 ant-governor. 
 
 No person liable for public moneys unac- 
 counted for shall be eligible as a member of 
 the legislature, or to any office of profit or 
 trust, until he shall have accounted for, and paid 
 over, all sums for which he may have been lia- 
 ble. 
 
 No member of the legislature, during the 
 term for which he was elected, shall be ap- 
 pointed to any office of profit which shall have 
 been created, or the emoluments of which have 
 been Increased, during the time such member 
 was in office. 
 
 Executive Power. — This is vested in a Gov- 
 ernor, who holds his office for four years, and is 
 elected by the qualified electors of the state. He 
 must be at least thirty ^years of age, twenty 
 years a citizen of the United States, and a resi- 
 dent in the state two years next preceding his 
 election. He may convene the legislature in 
 extra session. In all criminal cases, except im- 
 peachment and treason, he may grant reprieves 
 and pardons, and remit fines and forfeitures 
 with the advice and consent of the senate. He 
 is commander-in-chief of the army and navy, 
 and of the militia, except when called into 
 the service of the United States. It is his duty 
 to see that the laws are faithfully executed. 
 
 When the office of governor becomes vacant 
 by death or otherwise, the Lieutenant- Governor 
 possesses the powers and discharges the duties of 
 the office, and receives the same compensation as 
 the governor, during the remainder of the term. 
 When the governor is absent from the state, or 
 unable, from protracted illness, to perform the 
 duties of his office, tbe lieutenant-governor dis- 
 charges the duties until the governor shall be 
 able to resume his duties ; but, if from disability 
 or otherwise, the lieutenant-governor shall be 
 incapable of performing said duties, or if he be 
 absent from the state, the president of the senate, 
 pro tempore, acts in his stead ; but if there be 
 no such president, or if he be disqualified by like 
 disability, or be absent from the state, then the 
 Speaker of the house of representatives assumes 
 the office of governor, and performs said duties ; 
 
 and, in case of disability of the foregoine offl 
 cers to discharge the duties of governor the 
 secretary of state convenes the senate to elect a 
 president pro tempore. 
 
 The Judicial Poweb.— The judges of all the 
 courts, except justices of the peace ^nd boardi 
 of supervisors, are appointed by the governor 
 with the advice and consent of the senate. ' 
 
 The Supreme Court consists of three judges 
 appointed for the term of nine years. The termB 
 are so arranged that one expires every third 
 year. The judges must be at least thirty years 
 of age, and two years citizens of the state. The 
 terms of the court are held at Jackson, the seat 
 of government, twice in each year, to wit : third 
 Monday in October, and first Monday in April. 
 The state is divided into three districts, and the 
 dockets of the difi'erent districts are called at 
 difierent times,which are fixed during the October 
 term by statute, and during the April terra by 
 order of the court. The judges are not required 
 to be appointed from the districts, but are taken 
 from the state at large. It has no jurisdiction 
 "but such as properly b'elongs to a supreme 
 court." 
 
 The judges of the supreme court, severally, 
 may grant writs of tupertedeas, certiorari, and 
 habeas corpus, take the acknowledgment and 
 proof of all instruments, are conservators of the 
 peace, and may sit as a court of inquiry and ad- 
 minister oaths. 
 
 Circuit Court. The state, by the constitution, 
 Is required to be divided into convenient judicial 
 districts, and is now divided into twelve districtB. 
 The judges are appointed for the term of sit 
 years, and are required to be at least twentj-sk 
 years of age ; and for two years citizens of the 
 state ; and are not required to be residents of the 
 districtB for which they are appointed. The 
 judges may alternate and make temporary 
 changes of their circuits whenever the pnbflc 
 interests require. The judges may, in vacation, 
 issue writs of prohibition, mandamus, certiorari, 
 supersedeas, habeas corpus, injunction, and ne 
 exeat, returnable to any court having jurisdic- 
 tion. At least two terms of the court shall be 
 held each year in each county. 
 
 The court has original jurisdiction in all, mat- 
 ters, civil and criminal ; but in civil matters only 
 when the principal amount in controversy ex- 
 ceeds one hundred and fifty dollars. It has a{i- 
 pellate jurisdiction in all cases where appeals are 
 granted by law from inferior tribunals. It may 
 alter names, legitimate ofispring, and decree 
 adoption of children. 
 
 Chancery Courts are established in each county 
 in the, state, with full jurisdiction in all matters 
 in equity, and of divorce and alimony ; in mat- 
 ters testamentary and of administration; in 
 minors' business, and allotment of dower; and 
 in cases of idiocy, lunacy, and persons non com- 
 pos mentis. All appeals are prosecuted directly 
 to the supreme court. 
 
 The state is dividetf'into convenient chancery 
 districts, now into twelve, and they conform to 
 the circuit court districts. Chancellors are ap- 
 pointed for each district in the same manner as 
 circuit judges, and for the term of four yeaw. 
 The qualifications of the chancellors are regn- 
 lated by statute, and are the same as those pre- 
 scribed by the constitution for circuit judges. A 
 court is required to be held in each county at 
 least twice in each year. , 
 
 The clerk of the chancery court is vested wm 
 large powers. At any time he may receive ana 
 file bills, petitions, accounts, inventories, ana 
 reports, issue process and warrants of appmuf" 
 ment, allow and register claims against estates 
 
MISSOURI 
 
 US 
 
 MISSOURI 
 
 of decedents, adminleter in his court, may ap- 
 point administrators ad colligendum, may grant 
 letters of administration to husband, or wife, 
 or next of kin. At monthly rules, required 
 to be held on the first Monday of each month, 
 he may take the probate of wills, and grant 
 letters testamentary, grant letters of adminis- 
 tration, appoint guardians for minors, lunatics, 
 and idiots, compel the return of inventories, the 
 presentation of annual or final accounts and 
 approve the same ; may refer contested claims 
 to auditors,. and receive and act on their report ; 
 may do all things necessary to the settlement of 
 insolvent estates ; may require executors, or 
 administrators, or guardians to give new sure- 
 ties; may enter decrees nisi, and make all orders 
 of course, orders of revivor, and orders pro 
 confesso. All such orders are not final, but are 
 subject to approval by the court. 
 
 The clerks of the circuit and chancery courts 
 are elected by the qualified electors of the county, 
 and for the term of four years. The clerk of the 
 supreme court is appointed by the court for the 
 term of four years. 
 
 Justices of the Peace. Each county is divided 
 into justices' districts, and they are the same as 
 those laid off for the election of supervisors, un- 
 less othervrise directed by the board of supervis- 
 ors, or by law. Two justices are elected in each 
 district for the term of two years. The jurisdic- 
 tion in civil matters is limited to causes in which 
 the principal of the amount in controversy does 
 not exceed one hundred and fifty dollars ; and 
 in criminal matters, concuri'ent with the circuit 
 court, of all cases of offences where the punish- 
 ment prescribed does not extend beyond a fine 
 and imprisonment In the county jail. They are 
 conservators of the peace. An appeal may be 
 taken to circuit court in all cases. 
 
 Soardof Supervisors. Each county is divided 
 Into five districts, and from each there is elected 
 a supervisor, who holds Ms office for two years. 
 The five so elected constitute a board of super- 
 visors for each county, with full jurisdiction over 
 roads, ferries and bridges, and all matters of 
 county finance, assessment of taxes, and county 
 contracts. 
 
 MISSOTTHI. The name of one of the 
 states of the United States of America. 
 
 It was formed out of part of the territory 
 ceded to the United States by the French Repub- 
 lic by treaty of April 30, 1808. 
 
 This state was admitted into the Union by a 
 resolution of congress approved March 2, 1821. 
 Stat. U. S. 
 
 To this resolution there was a condition, 
 which, having been performed, the admission of 
 Missouri as a state was completed by the presi- 
 dent's proclamation-, dated August 10, 1881. 3 
 Litt. & Brown's edit. Stat. U. S. App. 2. 
 
 The convention which formed the constitution 
 of this state met at St. Louis, on Monday, June 
 12, 1820, and continued by adjournment till 
 July 19, 1820, when the constitution was 
 adopted, establiishing " an independent republic, 
 by the name of the 'State of Missouri.' " 
 
 Every male citizen of the United States, and 
 every person of foreign birth, who may have de- 
 clared his intention of becoming a citizen of the 
 United States according to law, not less than one 
 nor more than five years before offering to vote ; 
 who is over the age of twenty-one years, who 
 shall have resided in the state one year, and in 
 the county, city, or town sixty days, next pre- 
 ceding an election, is entitled to vote. But no 
 officer, soldier, or marine, in the regular army or 
 navy of the United States, shall be entitled to 
 vote at any election. 
 
 The Lbgislativb Powee.— This is lodged in 
 a General Assembly, consisting of a Senate and 
 House of Representatives. 
 
 The Senate consists of thirty-four members, to 
 be chosen by the qualified voters of their respect- 
 ive districts for the term of four years ; but one- 
 half of the senators are to be chosen every second 
 year. A senator must be a male citizen of the 
 United States, thirty years old, a qualified voter 
 of the state three years, and an inhabitant of the 
 district which he may be chosen to represent one 
 year, and shall have paid a state and county tax 
 within one year, next before his election. 
 
 The House of Bepresentatives consists of mem- 
 bers to be chosen every second year by the elect- 
 ors of the several counties, the total number be- 
 ing about one hundred and forty, but varying 
 with the apportionments, which are to be made 
 after each decennial census, and are based on a 
 ratio obtained by dividing the whole number of 
 inhabitants of the state by two hundred. Each 
 county is entitled to one representative, at least, 
 and when counties have certain multiples of 
 said ratio, they are entitled to representation pro- 
 portionate thereto ; such counties being divided 
 into representative districts by the county or cir- 
 cuit court. 
 
 A representative must be twenty-four years of 
 age at least, must have been a qualified voter of 
 the state two years, and otherwise possess the 
 same qualifications as a senator. 
 
 The Executive Power. — The Governor Ig 
 elected by the people, and holds his office for four 
 years and until a successor is duly elected and 
 qualified, but he is ineligible to re-election as his 
 own successor. He must be at least thirty-five 
 years old, a male, and must have been a citizen of 
 the United States for ten years, and a resident of 
 this state seven years next before his election. 
 He is commander-in-chief of the militia of the 
 state, except when they are called into the ser- 
 vice of the United States ; is the conservator of 
 the peace ; and is to take care that the laws are 
 distributed and faithfully executed. ISe has 
 power to grant reprieves, commutations, and 
 pardons, except in cases of treason and impeach- 
 ment ; is to communicate information and re- 
 commend measures to the general assembly; 
 commission all officers and fill all vacancies, un- 
 less otherwise provided by law ; and may veto 
 bills, which, however, may be passed over his 
 objections by a two-thirds vote of all the mem- 
 bers elect in both houses. 
 
 The Lieutenant-Governor is elected at the same 
 time, in the same manner, and for the same term, 
 and is to possess the same qualifications as the 
 governor. He is, by virtue of his office, president 
 of the senate, may debate in committee of the 
 whole, and give the casting vote in the senate, 
 and in joint vote of both houses. In case of 
 death, conviction, or impeachment, failure to 
 qualify, resignation, absence from the state, or 
 Other disability of the governor, the powers, 
 duties, and emoluments of the office for the resi- 
 due of the term, or until the disability shall be 
 removed, devolve upon him. 
 
 A Secretary of State, State Auditor, State 
 Treasurer, Attorney General, and Superintendent 
 of Public Schools, each of whom must be at least 
 twenty-five years old, a male citizen of the 
 United States, and a resident of this state at 
 least five years next before an election, and who 
 are all elected for four years, complete the ex- 
 ecutive department. 
 
 The Judicial Power.— The Supreme Court 
 consists of five judges, elected by the people for 
 ten years, one judge being elected every two 
 
MISSOURI 
 
 246 
 
 MISTAKE 
 
 years ; but they may be removed from office, for 
 Inefficiency on account of continued sickness or 
 inilrmity, by the general assembly, two-thirds of 
 the members concuriing, with the approval of 
 the governor. This process does not, however, 
 take the place of impeachment. Judges must be 
 citizens of the United States, not less than thirty 
 years old, and citizens of this state for five years 
 next before their election. 
 
 Three of the judges constitute a quorum, and 
 the court is required to sit at the seat of govern- 
 ment. It has an appellate jurisdiction from in- 
 ferior courts, coextensive with the state (under 
 limitations provided in the constitution), may 
 issue, hear, and determine writsof Aa6«a« corpus, 
 mandamus, quo warranto, certiorari, and other 
 original remedial writs, and has a general super- 
 intending control of inferior courts. 
 
 The St. Louis Court of Appeals has appellate 
 jurisdiction coextensive with the city of St. 
 Louis, and the counties of St. Louis, St. 
 Chai-Ies, Lincoln, and Warren. It has the same 
 power as the supreme court, within said city and 
 counties, as to superintendence of inferior courts 
 and the issuance and determination of original 
 remedial writs. 
 
 The court is held at the city of St. Louie, and 
 consists of three judges, two of whom constitute 
 a quorum, to be elected by the qualified voters 
 of said city and counties for the period of twelve 
 years, one judge being elected every four years. 
 Judges must be residents of the district com- 
 posed of said city and counties, and must other- 
 wise possess the same qualifications as judges of 
 the supreme court. Appeals to, and writs of 
 error from, the supreme court, lie in cases in- 
 volving : 1st, a sum exceeding twenty-five hund- 
 red dollars ; 2d, the construction of state or 
 national constitution ; 3d, a treaty, statute, or 
 authority under the United States; 4th, the 
 state revenue laws, or title to state office ; 5th, 
 title to real estate ; 6th, cases in which a politi- 
 cal subdivision, or an officer, of the state is a 
 party ; 7th, all cases of felony. 
 
 The Circuit Court has jurisdiction over all 
 criminal, and exclusive original jurisdiction over 
 all civil cases, not otherwise provided for by 
 law ; concurrent jurisdiction with, and appellate 
 jurisdiction from, inferior tribunals and justices 
 of the peace, as may be required by law. It ex- 
 ercises superintending control over criminal, 
 probate, county, and municipal corporation 
 courts, justices of the peace, and inferior tribu- 
 nals. It has full original jurisdiction in equity ; 
 and no other chancery court exists. 
 
 The state is divided into convenient circuits of 
 contiguous counties, in each of which circuits 
 one judge is elected for six years, who must be 
 thirty years old, a citizen of the United States 
 five years, of this state three years, and a resi- 
 dent of the circuit. Any circuit judge may be 
 removed by the general assembly, or may be im- 
 peached, in the same manner as supreme judges. 
 In the city of St. Louis (which is a distinct po- 
 litical subdivision of the state) there are five 
 circuit judges, of co-ordinate jurisdiction, who 
 sit separately in special term, for the trial of 
 causes, and together in general term, to make 
 rules of court and transact such other business 
 as may be provided by law, but with no power 
 to review proceedings had in special t«rm. 
 
 The Probate Court is a court of record in each 
 county, consisting of one judge, who is elected. 
 It has jurisdiction in probate matters, letters tes- 
 tamentary, and of administration, guardians, 
 curators, and«ll matters relating to apprentices. 
 
 The County Court is a court of record In each 
 county, and has jurisdiction to transact all 
 county business, and such other business as may 
 
 be prescribed by law. It consists of one or more 
 judges, not exceeding three, of whom the pro. 
 bate judge may be one. 
 
 Justices of the Peace are elected by the people 
 two in each township, for a term of four years' 
 The city of St. Louis is divided into fourteen 
 districts, each of which has one justice of the 
 peace, at least. They have original civil juris- 
 diction over matters arising from contract and 
 to recover statutory penalties when the amount 
 involved does not exceed one hundred and fifty 
 dollars (and in cities having over fifty thousand 
 inhabitants, two hundred and fifty dollars) ; also 
 in actions against railroad companies for injuries 
 to animals in their townships, without regard 
 to value. 
 
 They have criminal jurisdiction in breaches of 
 the peace, concurrent original jurisdiction with 
 the circuit court, coextensive with their counties 
 in misdemeanors, and authority to issue war- 
 rants for preliminary hearing, and to take bail, 
 in cases of alleged felony. 
 
 In the city of St. Louis there are the Crvmind 
 Court, the Court of Criminal Correction, and, as 
 in other cities. Municipal Corporation Courts. 
 
 The Criminal Court has the criminal jurisdic- 
 tion in felony cases of the circuit courts of other 
 counties. 
 
 The Court of Criminal Correction has exdnsire 
 original jurisdiction of all misdemeanors, com- 
 mitted In the city of St. Louis, under the laws 
 of the state, concurrent with justices of the 
 peace ; and power to hear and commit for indict- 
 ment, with or without bail, all parties charged 
 with felony. It has also an appellate jurisdiction 
 from justices of the peace in criminal cases. 
 
 Municipal Corporation Courts exercise func- 
 tions under the laws and ordinances of the city. 
 
 MISTAKE. Some unintentional act, 
 omission, or error arising from ignorance, sur- 
 prise, imposition, or misplaced confidence. 
 Story, Eq. Jur. § 110. 
 
 That result of ignorance of law or fact 
 which has misled a person to commit that 
 which, if he had not been in error, he would 
 not have done. Jeremy, Eq. Jur. 358. 
 
 A mistake exists when a person, under 
 some erroneous conviction of law or fact does, 
 or omits to do, some aet which, hut for the 
 erroneous conviction, he would not have done 
 or omitted. It may arise either from uncon- 
 sciousness, ignorance, forgetfulness, imposi- 
 tion, or misplaced confidence. Bishp. Eq. 
 § 185. 
 
 As a general rule, both at law and in equity, 
 mistakes of law do not furnish an excuse for 
 wrongful acts or a ground of relief from the 
 consequences of acts done in consequence of 
 such a mistake ; 6 CI. & F. 964-971 ; 9 M. 
 & W. 54; 5 Hare, 91; 8 Wheat. 214; 1 
 Pet. 15; 9 How. 55; 7 Paige, Ch. 99*, 137; 
 2 Johns. Ch. 60; Story, Eq. Jur.J§ 125- 
 138. See 2 M'Cord, Ch. 455; 6 H. & J. 
 500 ; 25 Vt. 603 ; De G. M. «e 6. 76 ; 21 
 Ala. N. s. 252; 13 Ark. 129; 6 Ohio, 169; 
 11 id. 480 ; 21 Ga. 118 ; Beasl. Ch. 165; L. 
 E. 14 Eq. 85; 3 Ch. Div. 351. But if a 
 contracting party knows that the other party 
 ia proceeding upon a mistake in law, there 
 might arise a consideration of fraud in his 
 taking advantage of the other's mistake; L. 
 R. 14 Eq. 85; 70 Penn. 425; 61 Ala. 154; 
 28 111. 579 ; when both parties are under a 
 
MISTAKE 
 
 247 
 
 MITIGATION 
 
 common mistake of law as to the application of 
 their contract, it can be applied only accord- 
 ing to their intention and not otherwise; 
 Leake, Contr. 347; 46 L. J. Q. B. 213. 
 And, if parties contract under a common 
 misapprehension as to their relative and re- 
 spective rights, the contract may be liable to 
 be set aside as inapplicable to the state of 
 rights really existipg; L. R. 2 H. L. 170; 
 6 H. L.^234. In this connection the word jus 
 in the maxim ignorantia juris haud excusat, 
 denotes general law and not private rights ; 
 ibid. An agreement made for the purpose of 
 settling rights, with full knowledge of the 
 doubts arising upon them, will be enforced, 
 and parties will not be allowed to state that 
 they were under a misapprehension as to the 
 law; 1 S. & S. 555; 51 Ala. 160; 3 Lead. 
 Cas. Eq. 411; 7 W. & S. 253. This is par- 
 ticularly the case in relation to family settle- 
 ments; 3 Swanst. 462; 64 Penn. 25. 
 
 An act done or a contract made under a mu- 
 tual mistake or ignorance of a material fact is 
 voidable and relievable in equity ; Story, Eq. 
 Jur. § 140. The rule applies to- cases where 
 there has been a studied suppression of facts 
 by one side, and to cases of mutual ignorance 
 or mistake; 3 Burr. 21; 26 Beav. 454; 12 
 Sim. 465; 9 Ves. 275; 3 Ch. Cas. 56; 2 
 Barb, 475; 1 Hill, N. Y. 287; 11 Pet. 71; 
 8 B. Monr. 580; 4 Mas. 414; 5 R. L 130. 
 But the fact must be material to the contract, 
 i. e. essential to its character, and an efficient 
 cause of its concoction; 1 Ves. 126, 210; 
 De G. & S. 83 ; 6 BInn. 102 ; 11 Grat. 468 ; 
 2 Barb. 37; 2 Sandf. Ch. 298; 13 Penn. 
 371. See 28 N. J. Eq. 806. A mistake 
 will not be relieved against if it was the result 
 of the party's negligence ; 5 Oreg. 169; 1 2 CI. 
 &F. 248; 1 W. &M. 138; 6 R. L130. If 
 the mistake, as to the expression of an agi-ee- 
 ment, is only on one side, there will be no 
 relief. But if such a mistake on the part of 
 one party be known to the other at the time, 
 the contract can be avoided at common 
 law, if not reduced to writing ; L. R. 6 Q. 
 
 B. 597. In equity, a mistake of one party 
 known to the other may not only preclude the 
 latter from obtaining specific performance, but 
 may also be a ground for setting aside the 
 contract altogether; Leake, Contr. 318; 30 
 Beav. 445. When a written contract con- 
 tains a mistake common to both parties in ex- 
 pressing its terms, equity will give relief by 
 restraining proceedings at law, or by rectifying 
 the writing or setting it aside ; Leake, Contr. 
 319. 
 
 When a mistake in the expression of- a 
 written contract is so obvious, without extrin- 
 sic evidence, as to leave no doubt of the in- 
 tention of the parties, the writing may be so 
 construed as to correct the mistake ; 8 B. & 
 
 C. 568 ; 5 H. L. C. 40 ; L. R. 9 Eq. 507. 
 An award may be set aside for a mistake of 
 
 law or fact by the arbitrators apparent on the 
 face of the award; 2 B. & P. 371 ; 1 Dall. 
 487; 1 Sneed, 321. See 6 Mete. 186; 17 
 How. 344 ; 6 Pick. 148 ; 2 Gall. 61 ; 4 N. H. 
 
 357; 3 Vt. 308 ; 6 jrf. 529 ; 15 IlL 461 ; 2 
 
 B. & Aid. 691 ; 3 id. 237 ; 1 Bingh. 104 ; 1 
 D. &R. 366; 1 Taunt. 152; 6 id. 254; 3 
 
 C. B. 705 ; 2 Exch. 344 ; 3 East, 18. 
 
 The word which the parties intended to use 
 in an instrument may be substituted for one 
 which was actually used by a clerical error, 
 in equity ; Adams, Eq. 169 et seq. ; 13 Gray, 
 373 ; 6 Ired. Eq. 462 ; 17 Ala. N. s. 562. 
 
 As to the rule for the correction of mistakes 
 in wills, see Story, Eq. Jur. § 179; 2 "Ves. 
 216; 3 id. 321; 1 Bro. Ch. 85; 3 id. 446; 
 1 Keen, 692; 2K. &J. 740; iJones, Eq. 110; 
 22 Mo. 518 ; 2 Stockt. Ch. 582. 
 
 A mistake sometimes prevents a forfeiture 
 in cases of violation of revenue laws ; Paine, 
 129; Gilp. 235; 4 Call, 158; breach of em- 
 bargo acts; 3 Day, 296; Paine, 16; 7 Cra. 
 22 ; 3 Wheat. 59 ; 11 How. 47 ; 1 Bish. Cr. 
 Law, § 697; 4 Cra. 347; 11 Wheat. 1; 12 
 id. 1 ; 1 Mass. 847. See Kerr, Fr. & Mist.; 
 Bispham, Equity ; Leake, Contr. ; 3 Lead. 
 Cas. Eq. 411. 
 
 MISTRIAL. A trial which is erroneous 
 on account of some defect in the persons try- 
 ing, 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 ; 2 Maule & S. 270. 
 
 Consent of parties cannot help such a trial, 
 when past ; Hob. 5. 
 
 It is error to go to trial without a plea or 
 an issue, in the absence of counsel and with- 
 out his consent, although an affidavit of de- 
 fence be filed in the case, containing the sub- 
 stance of a plea, and the court has ordered 
 the case on the list for trial; 3 Penn. 501. 
 
 On an indictment for perjury, an infant 
 under the age of twenty-one years, and not 
 otherwise qualified, not having, in fact, been 
 summoned, personated his father as a juror. 
 Here was a mistrial, because the verdict in 
 the case was the verdict of but eleven jurors. 
 "To support a judgment," observed Judge 
 Holroyd, ' ' it must be founded on a verdict 
 delivered by twelve competent jurors. This 
 man was incompetent, and therefore there 
 has been a mistrial." 7 D. & R. 684. See 4 
 B. & Aid. 430 ; 18 N. Y. 128 ; Nkw Trial. 
 
 MISUSER. An unlawful use of a right. 
 
 In cases of public offices and franchises, a 
 misuser is sufficient to cause the right to be 
 forfeited. 2 Bla. Com. 153 ; 5 Pick. 163. 
 
 MITIGATION. Reduction; diminution; 
 lessening of the amount of a penalty or pun- 
 ishment. 
 
 Circumstances which do not amount to a 
 justification or excuse of the act committed 
 may yet be properly considered in mitigation 
 of the punishment : as, for example, the fact 
 that one who stole a loaf of bread was starv- 
 ing. 
 
 In actions for the recovery of damages, 
 matters may often be given in evidence in 
 mitigation of damages which are no answer 
 to the action itself. See Damages ; Cha£- 
 
 ACTEB. 
 
MITIOR SENSUS 
 
 248 MODERATE CA8TIGAV1T 
 
 MITIOR SENSUS. See In Mitiori 
 
 Sensu. 
 
 MITTER (L. Er.). To put, to send, or 
 to pass : as, milter V estate, to pass the estate ; 
 mitter le droit, to pass a right. 2 Bla. Com. 
 324 ; Bacon, Abr. Release (C) ; Co. Litt. 
 193, 273 6. Mitter a large, to put or set at 
 large. 
 
 MITTIMUS. In Old English Law. 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, 
 etc. 1 Mart. La. 278 ; 2 id. 88. 
 
 In Criminal Practice. A precept in 
 ■writing, under the hand and seal of a justice 
 of the peace, or other competent officer, di- 
 rected to the jailer 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 ACTION. In Practice. An 
 action partaking of the nature both of a real 
 and of a personal action, by which real pro- 
 perty is demanded, and also damages for a 
 wrong sustained. An ejectment is of this 
 nature. 4 Bouvier, Inst. n. 3650. See Ac- 
 tion. 
 
 MIXED CONTRACT. In CivU Law. 
 
 A contract 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. Pothier, 
 Obi. n. 12. 
 
 MIXED GOVERNMENT. A govern- 
 ment established with some of the powers of 
 a monarchial, aristocratical, and democratical 
 government. See Government; Mon- 
 archy. 
 
 MIXED LARCENY. Compound lar- 
 ceny, which see. 
 
 MIXED PROPERTY. That kind of 
 property which is not altogether real nor per- 
 sonal, but a compound of both. Heir-looms, 
 tombstones, monuments in a church, and title- 
 deeds to an estate, are of this nature. 2 Bla. 
 Com. 428; 3 B. & Ad. 174; 4 Bingh. 106. 
 
 MIXED TITHES. In Ecclesiastical 
 La^w. "Those which arise not immediately 
 from the ground, but from those things which 
 are nourished by the ground:" e. g., colts, 
 chickens, calves, milk, eggs, etc. 3 Burn, 
 Eccl. Law, 380 ; 2 Bla. Com. 24. 
 
 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. 
 
 The intermixture may be occasioned by the 
 wilful act of the party, or owner of one of 
 
 the articles, by the wilful act of a stranger 
 by the negligence of the owner or a stranSer 
 or by accident. See Confusion of Goodb! 
 
 MOB (Lat. mobilis, movable). A tumul 
 tuous rout or rabble ; a crowd excited to some 
 violent or unlawful act. The word in legal 
 use is practically synonymous with riot, but 
 the latter is the more correct term. 
 
 At common law a municipal corporation ig 
 not liable for damage to property by a mob- 
 90 Penn. 397 ; s. C. 35 Am. Rep. 670- 46 
 Ala. 118 ; 25 Md. 107 ; nor for the failure of 
 its officers to repress a mob ; 53 Ala. 527 • s 
 o. 25 Am. Rep. 656 ; 13 Blatch. 289. The 
 legislature may, however, give a right of ac- 
 tion against the corporation for damages 
 caused by a mob, and provide the measure'of 
 damages; 9 Kan. 360; 24 Hun, 562- 47 
 Cal. 631 ; 65 Me. 426. Such a right of ac- 
 tion has been provided by statute in Pennsyl- 
 vania against the county in which the damage 
 was caused. 
 
 MOBBING AND RIOTING. In Scotch 
 Law. A general term, including all those 
 convocations of the lieges for violent and un- 
 lawful purposes, which are attended with in. 
 jury 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 some- 
 times used separately in legal language,— the 
 word mobbing being pecuEarly applicable to 
 the unlawful assemblage and violence of a 
 number of persons, and that of rioting to the 
 outrageous behavior of a single individual. 
 Alison, Cr. Law, c. 23, p. 509. 
 
 MOBILIA. See Moyableb. 
 
 MODEL. A machine made on a small 
 scale to show the manner in which it is to be 
 worked or employed. 
 
 The act of congress of July 4, 1838, § 6, 
 required an inventor who desired to take out 
 a patent for his invention to furnish a model 
 of his invention, in all cases which admitted 
 of representation by model, of a convenient 
 size to exhibit advantageously its several 
 parts. But now a model need not be fur- 
 nished unless required by the commissioner; 
 and the commissioner of patents may dispense 
 with models of designs when the design can 
 be sufficiently represented by drawings or 
 photographs ; R. S. § 4930. A model must 
 not exceed one foot in any of its dimensions, 
 under the present rules of the patent-office, 
 except vfhere the commissioner may admit 
 working models of complicated machines of 
 larger dimensions. 
 
 MODERATE CASTIGAVIT. In 
 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 Chitty, PL 576; 2 B. & P. 224. See 
 Correction; Assault; 15 Mass. 847; 2 
 Phill. Ev. 147 ; Bacon, Abr. Assault (C). 
 
 This plea ought to disclose, in general 
 
MODERATOR 
 
 249 
 
 MONARCHY 
 
 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. The presiding officer 
 of town meetings in New England is so 
 called. 
 
 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 my crop shall 
 produce that much, and it produces onfy eight 
 hundred bushels, the contract is modified ; it 
 is for eight hundred bushels, and no more. 
 
 It may be modified, by the consent of both 
 parties, after it has been made. See 1 Bou- 
 vier, Inst. n. 733. 
 
 MODO ET FORMA (Lat. in manner and 
 formj. In Pleading. Technical words used 
 to put in issue such concomitants of the prin- 
 cipal matters as time, place, etc., where these 
 circumstances were material. Their use when 
 these circumstances were immaterial was 
 purely formal. The words were translated 
 literally, when pleadings began to be made in 
 English, by "in manner and form." See 
 Lawes, PI. 120; Gould, PI. c. 6, § 22; 
 Steph. PI. 213; Dane, Abr. Index;* Viner, 
 Abr. Modo et Forma, 
 
 MODtTS. In Civil Law. Manner; 
 means ; way. Ainsworth, Lat. Diet. A 
 rhythmic song. Du Cange. 
 
 In Old Conveyancing. Manner: e.g., 
 the manner in which an estate should be held, 
 etc. A qualification, whether in restriction or 
 enlargement of the terms of the instrument 
 especially with relation to the kind of grant 
 called " donatio," — the making those quasi 
 heirs who were not in fact heirs according to 
 the ordinary form of such conveyances. And 
 this modus or qualification ^f the ordinary 
 form became so common as to give rise to the 
 maxim " modus et conoentio vincunt legem." 
 Co. Litt. 19 a; Bracton, 17 6 ; 1 Reeve, 
 Hist. Eng. Law, 293. A consideration. 
 Bracton, 17, 18. 
 
 In Ecclesiastical Law. A peculiar man- 
 ner of tithing, growing out of custom. See 
 
 Moons DSCIMANDI. 
 
 MODTTS DECIMANDI. In Ecclesias- 
 tical Law. A peculiar manner of tithing, 
 arising from immemorial usage, and differing 
 from the payment of one-tenth of the annusd 
 increase. 
 
 To be a good modus, the custom must be — 
 first, certain and invariable ; second, benefi- 
 cial to the person ; third, a custom to pay 
 something different from the thing com- 
 pounded fbr ; fourth, of the same species ; 
 fifth, the thing substituted must be in its na^ 
 ture as durable as the tithes themselves; 
 sixth, it must not be too large : that would be 
 a rank modus. 2 Bla. Com. 30. See 2 & 
 S Will. IV. c. 100 ; 13 M. & W. 822. 
 
 MODUS DE NON DECIMANDO. In 
 Ecclesiastical Laiv. A custom or prescrip- 
 tion not to pay tithes, which is not good, ex- 
 cept in case of abbey-lands. 2 Sharsw. Bla. 
 Com. 31, n. 
 
 MOHAXOMEDAN LATV. A system of 
 native law prevailing among the Mohammed- 
 ans in India, and administered there by the 
 British government. See Hindu Law. 
 
 MOHATRA. In French Law. The 
 
 name of a fraudulent contract made to cover 
 a usurious loan of money. 
 
 It takes place when an individual buys mer- 
 chandise from another on 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 TouIIier, n. 
 44; 1 Bouyier, Inst. n. 1118. 
 
 MOIETY. The half of any thing: 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. Littleton, 125 ; 3 C. B. 274, 283. 
 
 MOLESTATION. In Scotch Law. The 
 name of an action competent to the proprietor 
 of a landed estate against those who disturb 
 his possession. It is chiefly used in questions 
 of commonty, or of controverted marches. 
 Erskine, Inst. 4. 1. 48. 
 
 MOLITURA. Toll paid for grinding at a 
 mill ; multure. Not used. 
 
 MOLLITBR MANUS IMPOSTTIT 
 (Lat.). He laid his hands on gently. 
 
 In Pleading. A plea in justification of a 
 trespass to the person. It is a good plea 
 when supported by the evidence ; 12 Viner, 
 Abr. 182 ; Hamm. N. P. 149 ; where an 
 amount of violence proportioned to the cir- 
 cumstances ; 20 Johns. 427; 4 Dcnio, 448; 
 2 Strobh. 232 ; 17 Ohio, 454 ; has been done 
 to the person of another in defence of pro- 
 perty; 3 Cush. 154; 3 Ohio St. 159; 9 
 Barb. 652; 23 Penn. 424; see 19 N. H. 
 562 ; 25 Ala. N. s. 41 ; 4 Cush. 597 ; or the 
 prevention of crime ; 2 Chitty, PI. 574 ; 
 Bacon, Abr. Assault and Battery (C 8). 
 
 MOLMUTIAN LAW^S. The laws of 
 Dunvallo Molmutius, sixteenth king of the 
 Britons, who began his reign about 400 B. c. 
 These laws were famous m the land till the 
 conquest ; Toml. ; Moz. & W. 
 
 MONARCHY That government which 
 is ruled, really or theoretically, by one man, 
 who is wholly set apart from all other mem- 
 bers of the state. 
 
 According to the etymology of the word, mon- 
 archy is that government In which one person 
 rules supreme — alone. In modern times the 
 terms autocracy, autocrat, have come into use 
 to indicate that monarchy of which the ruler 
 desires to be exclusively considered the source of 
 all power and authority. The Russian emperor 
 styles himself Autocrat of all the Buseias. Auto- 
 crat is the same with despot ; but the latter term 
 has fallen somewhat into disrepute. Monarchy 
 is contradistinguished from republic. Although 
 the etymology of the term monarchy Is simple 
 
MONARCHY 
 
 260 
 
 MONEY 
 
 and clear, It is by no means easy to give a defini- 
 tion either of monarchy or of republic. The 
 constitution of the United States guarantees a 
 republican government to every state. What is 
 a republic! In this case the meaning of the 
 term must be gathered from the republics which 
 existed at the time of the formation of our 
 government, and which were habitually called 
 republics. Lieber, in a paper on the question, 
 "Shall Utah be admitted into the Union?" (in 
 Putnam's Magazine,) declared that the Mormons 
 did not form a republic. 
 
 The fact that one man stands at the head of a 
 government does not make it a monarchy. We 
 have a president at the head. Nor is it necessary 
 that the one person have an unlimited amount 
 of power, to make a government a monarchy. 
 The power of the king of England is limited by 
 law and theory, and reduced to a small amount 
 in reality : yet England is called a monarchy. 
 Nor does hereditariness furnish us with a dis- 
 tinction. The pope is elected by the cardinals, 
 yet the States of the Church were a monarchy ; 
 and the stadtholder of several states of the 
 Netherlands was hereditary, yet the states were 
 republics. We cannot find any better definition 
 of monarchy than this : a monarchy is that gov- 
 ernment which is ruled (really or theoretically) 
 by one man, who is wholly set apart from all 
 other members of the state (called his subjects) ; 
 while we call republic that government in which 
 not only there exists an organism by which the 
 opinion of the people, or of a portion of the peo- 
 ple (as in aristocracies) , passes over into public 
 will, that is, law, but in which also the supreme 
 power, or the executive power, returns, either 
 periodically or at stated times (where the chief- 
 magistracy is for life) , to the people, or a por- 
 tion of the people, to be given anew to another 
 person ; or else, that government in which the 
 hereditary portion (if there be any) is not the 
 chief and leading portion of the government, as 
 v^as the case in the Netherlands. 
 'Monarchy is the prevailing type of govern- 
 ment. Whether it will remain so with our cis- 
 Caucasian race is a question not to be discussed 
 in a law dictionary. The two types of monarchy 
 as it exists in Europe are the limited or constitu- 
 tional monarchy, developed in England, and 
 centralized monarchy — to which was added the 
 modern French type, which consisted in the 
 adoption of Kousseau's idea of sovereignty, and 
 applying it to a transfer of all the sovereign 
 power of the people to one Csesar, who thus be- 
 came an unqualified and unmitigated autocrat or 
 despot. It was a relapse into coarse absolutism. 
 
 Paley has endeavored to point out the advan- 
 tages and disadvantages of the different classes 
 of government, — not successfully, we think. 
 The great advantages of the monarchial element 
 In a free government are : first, that there re- 
 mains a stable and firm point in the unavoidable 
 party struggle; and secondly, that, supreme 
 power, and it may be said the whole government, 
 being represented by or symbolized in one living 
 person, authority, respect, and, with regard to 
 public money, even public morality, stand a 
 better chance to be preserved. 
 
 The great disadvantages of a monarchy are 
 that the personal interests or inclinations of the 
 monarch or his house (of the dynasty) are sub- 
 stituted for tfie public interest; that to the 
 chance of birth is left what with rational beings 
 certainly ought to be the result of reason and 
 wisdom ; and that loyalty to the ruler comes 
 easily to be substituted for real patriotism, and 
 frequently passes over into undignified and per- 
 nicious man-worship. Monarchy is assuredly 
 the best government for many nations at the 
 
 present period, and the only government under 
 which in this period they can obtain securitv 
 and liberty: yet, unless we believe in a pre-exist, 
 ing divine right of the monarch, monarchy can 
 never be anything but a substitute— acceptable 
 wise, even desirable, as the case may be— for 
 something more dignified, which, unfortunately 
 the passions or derelictions of men prevent. The 
 advantages and disadvantages of republics may 
 be said to be the reverse of what has been stated 
 regarding monarchy. A frequent mistake in 
 modem times is this: that a state simply for 
 the time without a king — a kingless govern- 
 ment — is called a republic. But a monarcliy 
 does not change into a republic simply by ex- 
 pelling the king or the dynasty ; as was seen 
 in France in 1848. Few governments are less 
 acceptable than an elective monarchy ; for it has 
 the disadvantages of the monarchy without its 
 advantages, and the disadvantages of a repuhlic 
 without its advantages. See Governmekt- 
 Absolutism. ' 
 
 MONETAG-rUM. An ancient tribute 
 paid by tenants to their lord every third year, 
 in consideration of the lord's not changing 
 the money he had coined. 
 
 Mintage, or the right of coining money, 
 Oowel. 
 
 MONZiV. Gold and silver coins. Tiie 
 common medium of exchange in a civilized 
 nation. 
 
 There is some difference of opinion as to the 
 etymology of the word money ; and writers do 
 not agree as to its precise meaning. Some 
 writers define it to be the common medium of 
 exchange among civilized nations ; but in the 
 United States constitution there is a provision 
 which has been supposed to make it synonymous 
 with coins: " The congress shall have power to 
 coin money." Art. "1, sect. 8. Again: '!Ko 
 state shall coin money, or make any thing but 
 gold and silver a legal tender in payment of 
 debt." Art. 1, sect. 10. Hence the money of 
 the United States consists of gold and silver 
 coins. And so well has the congress of the 
 United States maintained this point, that the 
 copper coins heretofore struck, and the nicliel 
 cent of recent issues, although authorized to 
 "pass current," are not money in an exact 
 sense, because tfcey are not made a legal tender 
 in the payment of debts. The question has been 
 made whether a paper currency can be consti- 
 tutionally authorized by congi'ess and constituted 
 a legal tender in the payment of private dehts. 
 Such a power has been exercised and adjudged 
 valid by the highest tribunal of several of the 
 states, as well as by congress in the legal-tender 
 acts of 1863 and 1863. See Legal-Tendeb ; 
 1 Am. L. Reg. N. s. 553 ; 11 id. 618 : 13 id. 601; 
 47 Wise. 551. 
 
 For many purposes, bank-notes ; 1 Y. & J- 
 380 ; 3 Mass. 405 ; 17 id. 560 ; 4 Pick. 74 ; 
 2N. H. 333; 20 Wise. 217; 7 Cow. 662; 
 Brayt. 24; a check ; 4 Bingh. 179; and ne- 
 gotiable notes ; 3 Mass. 405 ; will be consid- 
 ered as money. But a charge that the defen- 
 dant set up and kept a faro bank, at which 
 money was bet, etc., is not sustained by proof 
 that bank-notes were bet, etc.; 2 Dana, 298 J 
 see 2 H. &(J. 407; 3 Rogers' Rec. 8. To 
 support a count for money had and received, 
 the receipt by the defendant of bank-notes, 
 promissory notes ; 3 Mass. 40S ; 9 Pick. 93; 
 14 Me. 285 ; 7 Johns. 132 ; credit in account 
 
MONET OF ADIEU 
 
 261 
 
 MONEY LENT 
 
 in the books of a third person ; 3 Campb. 
 199 ; or any chattel, is sufficient ; 4 Pick. 71 ; 
 17 Mass. 560 ; and will be treated as money. 
 See? Wend. 311; 8 id. 641; 7 S. & R. 
 246 ; 8 Term, 687 ; 3 B. & P. 559 ; 1 Y. & 
 J. 380. 
 
 MONET OF ADIEU. In French Law. 
 Earnest-money : so called because given at 
 parting in completion of the bargain. Poth. 
 Sale, 507. Arrhes is the usual French word 
 for earnest-money ; money of adieu is a 
 provincialism found in the province of Or- 
 leans. 
 
 MONEY BILLS. Bills or projects of 
 laws providing for raising revenue, and for 
 making grants or appropriations of the public 
 treasure. 
 
 A bill for granting supplies to the crown. 
 Such bills commence in the House of Com- 
 mons and are rarely attempted to be materi- 
 ally altered in the Lords ; May, Pari. L. ch.22. 
 
 The first clause of the seventh section of 
 the constitution of the United States declares, 
 " all bills for raising revenue shall originate in 
 the house of representatives ; but the senate 
 may propose or concur with amendments, as 
 on other bills." See Story, Const. §§871- 
 877; 58 Ala. 546. 
 
 What bills are properly "bills for raising 
 revenue," in the sense of the constitution, 
 has been matter of some discussion. Tucker, 
 Bla. Com. App. 261, and note; Story, 
 Const. § 877. In practice, the power has been 
 confined to bills to levy taxes in the strict 
 sense of the words, and has not been under- 
 stood to extend to bills for other purposes 
 which may incidentally create revenue. Story, 
 id.; 2 Elliott, Deb. 283, 284. 
 
 MONEY CLAIMS. In English Prac- 
 tice. Under the Judicature Act of 1875, 
 claims for the price of goods sold, for money 
 lent, for arrears of rent, etc., and other claims 
 where money ia directly payable on a contract 
 express or implied, as opposed to the cases 
 where money is claimed by way of damages 
 for some independent wrong, whether by 
 breach of contract or otherwise. These 
 " money claims' ' correspond very nearly to the 
 " money counts" hitherto in use. Moz. & W. 
 410. 
 
 And a privilege conferred by a state consti- 
 tution, to originate "money-bills," has been 
 held limited to such as transfer money from 
 the people to the state, and not inclusive of 
 such as apprrariate money from the state 
 treasury; 126 Mass. 557. 
 
 MONEY COUNTS. In Pleading. The 
 
 common counts in an action of assumpsit. 
 
 They are so called because they are founded 
 on express or implied promises to pay money In 
 consideration of a precedent debt. They are of 
 four descriptions ; the indebitatua assmnpsit ; the 
 quantum meruit ; the quantum valebant j and the 
 account stated. See these titles. 
 
 Although the plaintiff cannot resort to an 
 implied promise when there is a general con- 
 tract, yet he may, in many cases, recover on 
 
 the common counts notwithstanding there was 
 a special agreement, provided it has been exe- 
 cuted ; 1 Campb. 471; 12 East, 1 ; 7 Cra. 
 299 ; 5 Mass. SSI ; 10 id. 287 ; 7 Johns. 
 132; lOirf. 136. It is, therefore, advisable 
 to insert the money counts in an action of as- 
 sumpsit, when suing on a special contract ; 1 
 Chitty, PI. 383, 834. 
 
 MONEY HAD AND RECEIVED. In 
 Pleading. The technical designation of a 
 form of declaration in assumpsit, wherein the 
 plaintiff declares that the defendant had and 
 received certain money, etc. 
 
 An action of assumpsit will lie to recover 
 money to which the plaintifl' is entitled, and 
 which in justice and equity, when no rule of 
 policy or strict law prevents it, the defendant 
 ought to refund to the plaintiff, and which he 
 cannot with a good conscience retain, on a 
 count for money had and received ; 6 S. & K. 
 369; 10 id. 219; 1 Dall. 148; 2 id. 154; 
 3 J. J. Marsh. 175; 1 Harr. N. J. 447; 1 
 Harr. & G. 258 ; 7 Mass. 288 ; 6 Wend. 290 ; 
 13 id. 488 ; Add. Contr. 230. 
 
 When the money has been received by the 
 defendant in consequence of some tortious act 
 to the plaintiffs property, as when he cut 
 down the plaintiffs timber and sold it, the 
 plaintiff may waive the tort and sue in assump- 
 sit for money had and received ; 1 Dall. 122 ; 
 1 Blackf. 181 ; 4 Pick. 452 ; 5 id. 285 ; 12 
 id. 120; 1 J. J. Marsh. 543; 4 Binn. 374; 
 3 Watts, 277; 4 Call, 451. 
 
 In general, the action for money had and 
 received lies only where money has been re- 
 ceived by the defendant ; 14 S. &R. 179; 1 
 Pick. 204 ; 1 J. J. Marsh. 544 ; 3 trf. 6 ; 7 id. 
 100 ; 11 Johns. 464 ; 77 N. Y. 400. But bank- 
 notes or any other property received as money 
 will be considered for this purpose as money ; 
 3 Mass. 405 ; 17 id. 560 ; Brayt. 24 ; 7 Cow. 
 622 ; 4 Pick. 74. See 9 S. & R. 11. 
 
 No privity of contract between the parties 
 is required in order to support this action, x- 
 cept that which results from the fact of one 
 man's having the money of another which he 
 cannot conscientiously retain ; 17 Mass. 663, 
 579. See 2 Dall. 54 ; 5 Conn. 71 ; 127 Mass. 
 22. 
 
 MONEY LAND. A phrase sometimes 
 applied to money held upon trust to be laid 
 out in the purchase of land. See Conter- 
 
 SIGN. 
 
 MONEY LENT. In Pleading. The 
 
 technical name of a declaration in an action 
 of assumpsit for that the defendant promised 
 to pay the plaintiff for money lent. 
 
 To recover, the plaintiff must prove that 
 the defendant received his ma|ey, but it is 
 not indispensable that it shoulabe originally ' 
 lent. If, for example, money has been ad- 
 vanced upon a special contract, which has 
 been abandoned and rescinded, and which 
 cannot be enforced, the law raises an implied 
 promise from the person who holds the money 
 to pay it back as money lent. 7 Bingh. 266 ; 
 
MONEY-ORDER 
 
 252 
 
 MONOGRAM 
 
 3 M. & W. 434 ; 9 id. 729. See 1 N. 
 Chipm. 214 ; 3 J. J. Marsh. 37. 
 
 MONEY-ORDER. The act of 8 June 
 1872, c. 335, provided for the establishment 
 of a uniform money-order system, at all suit- 
 able post-offices, which shall be called "mone^- 
 order" offices. The applicant, upon deposits 
 ing a sum, which must not be over fifty dol- 
 lars, at one post-office, receives a certificate 
 or order for that amount, which he mails to 
 the payee, who can then obtain the money at 
 the office designated in the order, upon pre- 
 senting the latter and mentioning the name of 
 his correspondent. The system is now estab- 
 lished with several foreign countries, as well 
 as at home, and is found very convenient for 
 the transmission of small sums ; R. S. §§4027- 
 4048. Suppl. toR. S. p. 155. For the Eng- 
 lish system, see 3 & 4 Vict. c. 96, and 11 & 
 12 Vict. c. 88. 
 
 MONEY PAID. In Pleading. The 
 technical name of a declaration in assumpsit, 
 in which the plaintiff declares for money paid 
 for the use of the defendant. 
 
 When one advances money for the benefit 
 of another with his consent, or at his express 
 request, although he be not benefited by the 
 transaction, the creditor may recover the 
 money in an action of assumpsit declaring for 
 money paid for the defendant; 5 S. & R. 9. 
 But one cannot by a voluntary payment of 
 another's debt make himself creditor of that 
 other ; 1 Const. So. C. 472 ; 1 Gill & J. 497 ; 
 5 Cow. 603: 3 Johns. 434; 10 id. 361 ; 14 
 id. 87 ; 2 Root, 84 ; 2 Stew. Ala. 500 ;, 4 N. 
 H. 138 ; 1 South. 150. 
 
 Assumpsit for money paid will not lie 
 where property, not money, has been paid or 
 received; 7 S. & R. 246; 10 id. 75; 14 id. 
 179; 7 J. J. Marsh. 18. But see 7 Cow. 
 662. 
 
 But where money has been paid to the de- 
 fendant either for a just, legal, or equitable 
 claim, although it could not have been en- 
 forced at law, it cannot be recovered as money 
 paid. See Money Had and Received. 
 
 The form of declaring is for ' ' money paid 
 by the plaintiff for the use of the defendant 
 and at his request." 1 M. & W. 511. 
 
 MONEYED CORPORATION. A cor- 
 poration having the power to make loans upon 
 pledges or deposits, or authorized by law to 
 make insurance. 2 N. Y. Rev. Stat. 7th 
 ed. 1371; 3 N. Y. 479; 48 Barb. 464; 6 
 Paige, 497. 
 
 MONITION. In Practice. A process 
 in the nature of a summons, which is used in 
 the civil law, and in those courts which de- 
 rive their practice from the civil law. In the 
 English ecc%iastical courts it is used as a 
 warning to a defendant not to repeat an of- 
 fence of which he had been convicted. See 
 Benedict, Adm. 
 
 A general monition is a citation, or sum- 
 mons to all persons interested, or, as is com- 
 monly said, to the whole world, to appear 
 and show cause why the libel filed in the case 
 
 should not be sustained, and the prayer of 
 relief granted. This is adopted in prfje 
 cases, admiralty suits for forfeitures, and other 
 suits in rem, when no particular individuals 
 are summoned to answer. In such cases the 
 taking possession of the property libelled, 
 and this general citation or monition served 
 according to law, are considered constructive 
 notice to the world of the pendency of the 
 suit ; and the judgment rendered thereupon 
 is conclusive upon the title of the property 
 which may be affected. In form, the moni- 
 tion is substantially a warrant of the court, io 
 an admiralty cause, directed to the . marshal 
 or his deputy, commanding him, in the name 
 of the president of the United States, to give 
 public notice, by advertisements in such news- 
 papers as the court may select, and by notifi. 
 cations to be posted in public places, th^ a 
 libel has been filed in a certain admiralty 
 cause pending, and of the time and place ap- 
 pointed for the trial. A brief statement of 
 the allegations in the libel is usually contained 
 in the monition. The monition is served in 
 the manner directed in the warrant. 
 
 A mixed monition is one which contains 
 directions for a general monition to all per- 
 sons interested, and a special summons to pah 
 ticular persons named in the warrant. This 
 is served by newspaper advertisements, by 
 notifications posted in public places, and by 
 delivery of a copy attested by the officer to 
 each person specially named, or by leaving it 
 at his usual place of residence. 
 
 A special monition is a similar warrant, di- 
 rected to the marshal or his deputy, requiring 
 him to give special notice to certain persons, 
 named in the warrant, of the pendency of the 
 suit, the grounds of it, and the time and place 
 of trial. It is served by delivery of a copy 
 of the warrant, attested by the ofiicer, to each 
 one of the adverse parties, or by leaving the 
 same at his usual place of residence ; but the 
 service should be personal, if possible. 
 Gierke, Prax. tit. 21 ; Dunlap, Adm. Pr. . 
 135. See Conkl. Adm. ; Pars. Marit. Law. 
 
 MONITORY LETTER. In Ecclesi- 
 astical Law. The process of an official, a 
 bishop, or other prelate having jurisdictJBJi, 
 issued to compel, by ecclesiastical censufSft 
 those who know of a crime, or other matter 
 which requires to be explained, to come and 
 reveal it. Merlin, R6pert. 
 
 MONOCRACY. A government by one 
 person only. 
 
 MONOCRAT. A monarch who govems 
 alone ; an absolute governor. 
 
 MONOGAMY. The state of having 
 only one husband or one wife at a time. 
 
 A marriage contracted between one nan 
 and one woman, in exclusion of all the re«t 
 of mankind. The term is used in opposition 
 to bigamy and polygamy. Wolff, Dr. de Is 
 Nat. § 857. 
 
 MONOGRAM. A character or cipher 
 composed of one or more letters interwoveH) 
 being an abbreviation of a name. 
 
MONOMANIA 
 
 253 
 
 MONTANA 
 
 A signature made by a monogram would 
 perhaps be binding provided it could be 
 proved to have been made and intended as a 
 signature ; iDenio, 471. 
 
 There seems to be no reason vehy such a 
 signature sheuld not be as binding as one 
 which is altogether illegible. 
 
 MONOMANIA. In Medical Juris- 
 prudence. Insanity only upon a particular 
 subject, and with a single delusion of the 
 mind. 
 
 The most simple form of this disorder Is that 
 in which the patient has imbibed some single no- 
 tion, contrary to common sense and to his own 
 experience, and which seems, and no doubt really 
 is, dependent on errors of sensation. It is sup- 
 posed the mind in other respects retains its intel- 
 lectual 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. Med. 
 Stmndness and Unsoundness of Mind ; Ray, Ins. 
 § 203 ; 13 Ves. Ch. 89 ; 3 Bro. Ch. 444 ; 1 Add. 
 Eccl. 283 ; Hagg. 18 ; 2 Add. 79, 94, 309 ; 5 C. 
 & P. 168; L. E. 1 P. & D. 398 ; Burrows, Ins. 
 484, 485. See DELtrsiON ; Mania ; Trebuchet, 
 Jur. de la Uii. 55-58 ; 1 Whart. & St. Med. Jur. 
 §§ 3, 34. 
 
 MONOFOIiT. In Commercial Law. 
 
 The abuse of free commerce by which one or 
 more individuals have procured the advan- 
 tage of selling alone all of a particular kind 
 of merchandise, to the detriment of the pub- 
 lic. 
 
 Any combination among merchants to raise 
 the price of merchandise to the injury of the 
 pubUc. 
 
 An institution or allowance by a grant from 
 the sovereign power of a state, by commis- 
 sion, letters-patent, or otherwise, to any per- 
 son or corporation, by which the exclusive 
 right of buying, selling, making, working, or 
 Usmg any thing is given. Bacon, Abr. ; Co. 
 3d Inst. 181. Monopolies were, by stat. 21 
 Jac. I. c. 3, declared illegal and void, sub- 
 ject to certain specified exceptions, such as 
 patents in favor of the authors of new inven- 
 tions; 4 Bla. Com. 159; 2 Steph. Com. 25. 
 See passim For. Cas. and Op. 421 ; Curtis, 
 Patents. 
 
 A patent for a useful invention, under the 
 United States laws, is not, in the old sense of 
 the common law, a monopoly ; 9 Off. Gaz. 
 Pat. Off. 1062. 
 
 The constitutions of Maryland, North Caro- 
 lina, and Tennessee declare that " mono- 
 polies are contrary to the genius of a free 
 government, and ought not to be allowed." 
 See Copyright ; Patent. 
 
 MONSTER. An animal which has a con- 
 formation contrary to the order of nature. 2 
 Dungl. Hum. Phys. 422. 
 
 A monster, although born of a woman in 
 lawful wedlock, cannot inherit. Those who 
 have, however, the essential parts of the 
 human form, and have merely some defect of 
 conformation, are capable of inheriting, if 
 otherwise qualified; 2 Bla. Com. 246; 1 
 Beck, M. Jur. 366 ; Co. Litt. 7, 8 ; Dig. 1. 5. 
 
 14 ; 1 Swift, Syst. 331 ; Fred. Code, pt. 1, b. 
 1, t. 4, § 4. 
 
 No living human birth, however much it 
 may differ from human shape, can be law- 
 fully destroyed. Traill, Med. Jur. 47. See 
 Briand, M6d. L6g. pt. 1, c. 6, art. 2, ? 3 ; 1 
 Foder6, M6d. L6g. §§ 402-405. 
 
 MONSTRANS DE DROIT (Fr. show- 
 ing of right). A common-law process by 
 which restitution of personal or real property 
 is obtained from the crown by a subject. 
 Chitty, Prerog. of Cr. 345 ; 3 Bla. Com. 256. 
 By this process, when the facts of the title of 
 the crown are already on record, the facts on 
 which the plaintifi' relies, not inconsistent with 
 such record, are shown, and judgment of the 
 court prayed thereon. The judgment, if 
 against the crown, is that of ouster le main, 
 which vests possession in the subject without 
 execution. Bacon, Abr. Prerogative (E) ; 1 
 And. 181 ; 5 Leigh, 512; 12 Gratt. 564. 
 
 Monstrans de droit was preferred either on the 
 common law side of the court of chancery, or in 
 the exchequer, and will not come before the cor- 
 responding divisions in the high court of justice. 
 (Jud. Act, 1873, s. 34.) 
 
 MONSTRANS DE FAIT (Fr. showing 
 of a deed). A profert. Bacon, Abr. Pleas 
 (I. 12, n. 1). 
 
 MONSTRAVERUNT, 'WRIT OP. In 
 English Law. A writ which lies for the 
 tenants of ancient demesne who hold by free 
 charter, and not for those tenants who hold 
 by copy of court-roll, or by the rod, accord- 
 ing to the custom of the manor. Fitzh. N. 
 B. 31. 
 
 MONTANA. One of the territories of 
 the United States. 
 
 Congress, by an act approved May 26, 1864 
 (R. S. § 1903) , created the territory and defined 
 its boundaries as follows : All that part of the 
 territory of the United States included within the 
 following limits, to wit : commencing at a point 
 formed by the intersection of the twenty-seventh 
 degree of longitude west from Washington, 
 with the forty-fifth degree of north latitude ; 
 thence due west in the forty-fifth degree of lati- 
 tude to a point formed by its intersection with 
 the thirty-fourth degree of longtitude west from 
 Washington, thence due south, along the thirty- 
 fourth degree of longitude, to a point formed by 
 its intersection with the crest of the Rocky 
 Mountains ; thence following the crest of the 
 Rocky Mountains northward till its intersection 
 with the Bitter Root Mountains ; thence north- 
 ward along the crest of the Bitter Root Moun- 
 tains, to its intersection with the thirty-ninth de- 
 gree of longitude west from Washington ; thence 
 along the thirty-ninth degree of longitude north- 
 ward to the boundary line of the British posses- 
 sions ; thence eastward along that boundary line 
 to the twenty-seventh degree of longitude west 
 from Washington ; thence southward along the 
 twenty-seventh degree of longitude to the place 
 of beginning. By the same act it is provided 
 that the United States may divide the territory or 
 change its boundaries in such manner as may be 
 deemed expedient ; and further, that the rights 
 of person and property pertaining to the Indians 
 in the territory shall not without their consent 
 be included within the territorial limits of juris- 
 diction. 
 
MONTH 
 
 254 
 
 MONUMENT 
 
 The provisions of the organic act do not vary 
 materially from those of the acts creating the 
 territory of New Mexico. See New Mexico. 
 See for provisions affecting all the territoricB, R. 
 8. §§ 1839-1895. 
 
 By act of congress approved March 1, 1873, a 
 tract of land in the territories of Montana and 
 Wyoming, lying near the headwaters of the 
 Tellowstone River,, is reserved and withdrawn 
 from settlement under the laws of the United 
 States and dedicated and set apart as a public 
 park for the benefit and enjoyment of the 
 people ; K. S. § 3474 ; and by act of April 15, 
 1874, a tract of land at the northern boundary is 
 set apart as a reservation for the Gros Ventre, 
 Piegan, Blood, Blackfoot, River Crow, and such 
 other Indians as the President may from time to 
 time see fit to locate therein. 18 Stat, at L. 38. 
 
 MONTSS PIETATIS, MONTS DB 
 FIETE. Institutions established by public au- 
 thority for lending money upon pledge of goods. 
 
 In these establishments a fund is provided, 
 ■with suitable warehouses and all necessary ac- 
 commodations. They are managed by direc- 
 tors. When the money for which the goods 
 pledged is not returned in proper time, the 
 £roods are sold to reimburse the institutions. 
 They are found principally on the continent 
 of Europe. With us, private persons, called 
 pawnbrokers, perform this office. See Bell, 
 Inst. 5. 2. 2. 
 
 MONTH. A space of time variously com- 
 puted, as the term is applied to astronomical, 
 civil or solar, or lunar months. 
 
 The astronomical month contains one- 
 twelfth part of the time employed by the sun 
 in going through the zodiac. In law, when 
 a month simply is mentioned, it is never un- 
 derstootrto mean an astronomical month. 
 
 The civil or solar month is that which 
 agrees with the Gregorian calendar; and 
 these months are known by the names of 
 January, February, March, etc. They are 
 composed of unequal portions of time. There 
 are seven of thirty-one days each, four of 
 thirty, and one which is sometimes composed 
 of twenty-eight days, and in leapyears of 
 twenty-nine. 
 
 The lunar month consists of twenty-eight 
 days. 
 
 The Roman names of the months, as settled by 
 Augustus, have been used in all Christian coun- 
 tries except Holland, where a set of characteris- 
 tic names prevail, the remains of the ancient 
 Gaulish title, which were also used by our An- 
 glo-Saxon ancestors. The Trench Convention, in 
 October, 1793, adopted a set of names similar to 
 that of , Holland. 
 
 By the law of England, a month means 
 ordinarily, in common contracts, as in leases, 
 a lunar month. A contract, therefore, made 
 for a lease of land for twelve months would 
 mean a lease for forty-eight weeks only ; 2 
 Bla. Com. 141 ; 6 Co. 62 ; 1 Maule & S. 
 111. A distinction has been made between 
 "twelve months" and "a twelve-month:" 
 the latter has been held to mean a year ; 6 Co. 
 61. In a contract for the hire of furniture 
 at a weekly rental for so many months, 
 " months." was held to mean lunar month ; 
 45 L. T. Rep. N. 8. 843 ; s. c. 26 Alb. L. 
 J. 83. 
 
 _ But in mercantile contracts a month simply 
 signifies a calendar month : a promissory note 
 to pay money in twelve months would, there. 
 fore, mean a promise to pay in one year or 
 twelve calendar months; 3 B. & B 187' i 
 Maule & S. Ill ; 2 C. & K. 9 ; Story, BlL 
 §§ 143, 330 ; 2Mass.l70 ; 19 Pick. 332; 6 W 
 & S. 179 ; 1 Johns. Cas. 99 ; Benj. Sale5,§684'. 
 In general, when a statute speaks of a 
 month, without adding "calendar," or other 
 words showing a clear intention, it shall be 
 intended a lunar month ; Comyns, Kg. 
 Anno (B) ; 15 Johns. 858. Dud. Ga. 10?! 
 See 2 Cow. 518, 605. But it is now otheri 
 wise in England by 13 Vict. c. 21, § 4. And 
 by the Judicature Act of 1 8 76, Ord. Ivii. r. 1 
 it is provided that month shall mean calendar 
 month when not otherwise expressed. In all 
 legal proceedings, as in commitments, plead- 
 ings, etc., a month means four weeks ; 3 Burr 
 1485 ; 1 W. Blackst. 540 ; Dongl. 446, 463. 
 
 In Pennsylvania and Massachusetts, and 
 perhaps some other states ; 1 Hill, Abr. 118, 
 n. ; a month mentioned generally in a 
 statute has been construed to mean a calendar 
 month ; 2 Dall. 302 ; 4 id. 143 ; 4 Mass. 461 ; 
 4 Bibb, 105. In England, in the ecclesiasti- 
 cal law, months are computed by the calen- 
 dar; 3 Burr. 1456 ; 1 Maule & S. 111. 
 
 In New York, it is enacted that wheneTer 
 the term " month " or " months " is or shall 
 be used in any statute, act, deed, verbal or 
 written contract, or any public or private in- 
 strument whatever, it shall be construed to 
 mean a calendar, and not a lunar, month, un- 
 less otherwise expressed. Rev. Stat. pt. 2, 
 c. 19, tit. 1, § 4 ; 28 N. Y. 444. But this 
 has been modified as to computation of inter- 
 est, so that a month shall be considered the 
 twelfth part of a year, and as consisting of 
 thirty days, and interest for any number of 
 days less than a month shall be estimated by 
 the proportion which such number of days 
 bears to thirty ; R. S. pt. 3, p. 2264, S 9. 
 
 See, generally, 2 Sim. & S. 476 ; 2 Campb. 
 294 ; 1 Esp. 146 ; 1 Maule & S. HI ; 6 id. 
 227; 3 B. & B. 187; 2 A. K. Marsh. 245; 
 3 Johns. Ch. 74 ; 4 Dall. 143 ; 4 Mass. 461; 
 81 Cal. 173; 2 Harr. Del. 548; 72 N. C. 
 146; 29 N. H. 385. 
 
 MONUMENT. A thing intended to 
 transmit to posterity the memory of some 
 one. A tomb where a dead body has been 
 deposited. 
 
 In this sense it differs from a cenotaph, wHcl 
 is an empty tomb. Dig. 11. 7. 3. 6 ; 11. 7.. 2.^. 
 
 Coke says that the erecting of monumenta in 
 church, chancel, common chapel, or churchyard 
 in convenient manner is lawful ; for it is the last 
 work of charity that can be done for the de- 
 ceased, who whilst he lived was a lively temple 
 of the Holy Ghost, with a reverend regard and 
 Christian hope of a joyful resurrection. 
 
 The defacing of monuments is punishable hy 
 the common law; Tear B. 9 Edw. IV. c. W; 
 and trespass may be maintained ; 10 F. Moore, 
 494 ; 1 Cons. So. C. 172. An heir may bring an 
 action against one that injures the monument of 
 his ancestor ; Co. 3d Inst. 203; Gibs. 453. Al- 
 though the fee of church or churehyard be In 
 another, yet he cannot deface monuments; Co. 
 
MONUMENTS 
 
 255 
 
 MORAL INSANITY 
 
 3d Inst. 203. The fabric of a church is not to 
 he injured or deformed by the caprice of indi- 
 viduals; 1 Cons. So. C. 145; and a monument 
 may be taken down if placed inconveniently ; 1 
 Lee, Eccl. 640. A monument containing an im- 
 proper inscription can be removed ; 1 Curt. Eccl. 
 880. 
 
 Inscriptions on funeral monuments, especially 
 In questions of pedigree, are admissible as origi- 
 nal evidence. Those which are proved to have 
 been made by or under the direction of a de- 
 ceased relative are admitted as his declarati(!tns. 
 But if they have been publicly exhibited, and 
 are well known to the family, the publicity of 
 them supplies the defect of proof in not show- 
 ing that they were declarations of deceased 
 members of the family ; and they are admitted 
 on the ground of tacit and common consent. It 
 is presumed the relatives of the family would 
 not permit an inscription without foundation to 
 remain. Mural and other funereal inscriptions 
 are, from necessity, provable by copies. Their 
 value as evidence depends much on the authority 
 under which they were set up, and the distance 
 of time between their erection and the events 
 they commemorate. See some remarkable mis- 
 takes of fact in such inscriptions mentioned in 1 
 Phill. Ev. 234, and note 4. See Declabations ; 
 Hbassay. 
 
 MONUMENTS. Permanent landmarks 
 established for the purpose of indicating 
 boundaries. 
 
 Monuments may be either natural or arti- 
 ficial objects : as, rivers, known streams, 
 springs, or marked trees ; 6 Wlieat. 582 ; 7 
 id. 10; 9 Cra. 173; 6 Pet. 498; 1 Pet. C. 
 C. 64; 3 Ohio, 284; 5 id. 534; 5 N. H. 
 524 ; 3 Dev. 75. Even posts set up at the 
 corners ; 5 Ohio, 534 ; and a clearing ; 7 
 Cow. 723 ; are considered as monuments. But 
 see 3 Dev. 75. 
 
 When monuments are established, they 
 must govern, although neither courses nor dis- 
 tances nor computed contents correspond ; 1 
 Cow. 605 ; 7 id. 723 ; 2 Mass. 380 ; 6 id. 
 131 ; 3 Pick. 401 ; 5 id. 135 ; 3 Gill & J. 
 142 ; 2 Harr. & J. 260 ; 5 id. 163, 255 ; 1 
 Harr. & M'H. 355; 2 id. 416; Wright, 
 Ohio, 176; 5 Ohio, 534; Cooke, 146; 4 
 Hen. & M. 125; 1 Call, 429; 11 Me. 325; 
 1 Hayw. 22; 3 Murph. 88; 4 T. B. Monr. 
 32 ; 5 id. 175 ; 5 J. J. Marsh. 578 ; 6 Wheat. 
 682 ; 4 Wash. C. C. 15 ; 72 Me. 90. See 3 
 Washb. K. P. 406, 407, 409 ; Boundary. 
 
 MOORING-. In Maritime Law. The 
 
 securing of 3, vessel by a hawser or chain, or 
 otherwise, to the shore, or to the bottom by 
 a cable and anchor. The being "moored in 
 safety," under a policy of insurance, is being 
 moored in port, or at the usual place for land- 
 ing and taking in cargo free from any imme- 
 diate impending peril insured against ; 1 
 Phill. Ins. 968; 3 Johns. 88; 11 id. 358; 2 
 Stra. 1243 ; 5 Mart. La. 637 ; 6 Mass. 313 ; 
 Code de Coram. 152. 
 
 MOOT (from Sax. gemot, meeting together. 
 Anc. Laws and Inst, of England). 
 
 In Englisli Law. A term used in the 
 inns of court, signifying the exercise of argu- 
 ing imaginary cases, which young barristers 
 and students used to perform at certain times, 
 
 the better to be enabled by this practice to 
 defend their clients' cases. Orig. Jur. 212. 
 Mooting was formerly the chief exercise of 
 the students in the inns of court. 
 
 To plead a mock cause. (Also spelled 
 meet, from Sax. molain, to meet ; the sense 
 of debate being from meeting, encountering. 
 Webster, Diet.) A moot question is one 
 which has not been decided. 
 
 MOOT COURT. A court where moot 
 questions are argued. Webster, Diet. 
 
 In law schools this is one of the methods of 
 instruction ; an undecided point of law is argued 
 by students appointed as counsel on either side 
 of the cause, one or more of the professors sit- 
 ting as judge in presence of the school. The 
 argument is conducted as in cases reserved for 
 hearing before the full bench. 
 
 MOOT HILL. Hill of meeting (gemot), 
 on which the Britons used to hold their courts, 
 the judge sitting on the eminence, the parties, 
 etc. on an elevated platform below. Encyc. 
 Lond. 
 
 MORA, A moor, barren or unprofitable 
 ground ; marsh ; a heath ; a watery bog or 
 moor. Co. Litt. 5; Fleta, 1. 2, c. 71. See 
 In Mora. 
 
 MORAL CERTAINTY. That degree 
 of certainty which will justify a jury in 
 grounding on it their verdict. It is only pro- 
 bability ; but it is called certainty, because 
 every sane man assents to it necessarily from 
 a habit produced by the necessity of acting. 
 Beccaria on Crimes and Punishments, c. 14. 
 Nothing else but a strong presumption 
 grounded on probable reasons, and which 
 very seldom fails and deceives us. PnfTen- 
 dorff, Law of Nature, b. 1, c. 2, § 11. A 
 reasonable and moral certainty ; a certainty 
 that convinces and directs the understanding 
 and satisfies the reason and judgment of those 
 who are bound to act conscientiously upon it. 
 A certainty beyond a reasonable doubt. 
 Shaw,, C. J., Commonwealth vs. Webster. 
 Bemis' rep. of the trial, 469, 470 ; 118 Mass. 
 1. Such a certainty "as convinces beyond 
 all reasonable doubt. Parke, B., Best, 
 Presumpt. 257, note; 6 Rich. Eq. 217. 
 
 MORAL INSANITY. In Medical 
 Jurisprudence. A morbid perversion of the 
 moral feelings, aflTections, inclinations, tem- 
 per, habits, and moral dispositions, without 
 any notable lesion of the intellect or knowing 
 and reasoning faculties, and particularly with- 
 out any maniacal hallucination. Prichard, 
 art. Insanity, in Cyclopsedia of Practic^ 
 Medicine. 
 
 It is contended that some human beings 
 exist who, in consequence of a deficiency in 
 the moral organs, are as blind to the dictates 
 of justice as others are deaf to melody. 
 Combe, Moral Philosophy, Lect. 12. 
 
 In some, this species of malady is said to 
 display itself in an irresistible propensitylto 
 commit murder ; in others, to commit theft, 
 or arson. Though most persons afflicted with 
 this malady commit such crimes, there are 
 
MORAL OBLIGATION 
 
 256 MORGANATIC MARRIAGE 
 
 others whose disease is manifest in nothing 
 but irascibility. Annals de Hygifene, torn. i. 
 p. 284. Many are subjected to melancholy 
 and dejection, without any delusion or illu- 
 sion. This, perhaps without full considera- 
 tion, has been judicially declared to be a 
 "groundless theory." The courts, and law- 
 writers, have not given it their full assent; 1 
 Chitty, Med. Jur. 352 ; 1 Beck, Med. Jur. 
 553 ; Ray, Med. Jur. Prel. Views, § 23, p. 
 49 ; 1 Whart. & S. Med. Jur. § 163 et seq. 
 (where the doctrine is entirely repudiated 
 on both legal and psychological grounds) ; 3 
 F. & F. 839 ; 9 C. & P. 525 ; 4 Cox, C. C. 
 149; 11 Gray, 303; 2 Ohio St. 64; 6 
 McLean, 120 ; 57 Me. 574 ; 8 Abb. Pr. n. s. 
 57 ; 52 N. y. 467 ; 47 Cal. 134 ; 10 Fed. Rep. 
 161. But the defence of moral insanity seems 
 to have been upheld in Keq^ucky ; 1 Duv. 
 224 ; and see 4 Penn. 264, per Gibson, J. C. 
 
 MORAL OBLIGATION. A duty which 
 one owes, and which he ought to perform, but 
 which he is not legally bound to fulfil. 
 
 These obligations are of two kinds: 1st, 
 those founded on a natural right : as, the ob- 
 ligation to be charitable, which can never be 
 enforced by law. 2d, those which are sup- 
 ported by a good or valuable antecedent con- 
 sideration : as, where a man owes a debt 
 barred by the act of limitations, or contracted 
 during infancy ; this cannot be recovered by 
 law, though it subsists in morality and con- 
 science. A doctrine prevailed for some time 
 in the courts of England and this country that 
 an express promise made in discharge of an 
 antecedent moral obligation created a valid 
 contract, and the contract was then said to be 
 supported by the previous moral obligation ; 
 Oowp. 290 ; 5 Taunt. 36 (1813) ; 4 Wash. 
 C. C. 148; 12 S. & R. 177. This opinion 
 appears to have been entertained by Lord 
 Mansfield. In a note to Wennall vs. Adney, 
 3 B._ & P. 249, this idea was controverted, 
 and in Eastwood vs. Kehyon, 11 Ad. & E. 
 438, the notion of the validity of a moral con- 
 sideration was finally overruled. 
 
 Promises by an infant, after coming of age, 
 to pay a debt incurred during infancy, of a 
 bankrupt to pay a debt discharged in bank- 
 ruptcy, and of a debtor to pay a debt barred 
 by the statute of limitations, are sometimes 
 considered as instances of contracts supported 
 by moral considerations. But the promise of 
 the_ infant is rather a ratification of a contract 
 which was voidable, but not void. The pro- 
 mise of the bankrupt operates as a waiver of 
 the defence given to the bankrupt by statute, 
 the certificate of discharge not having extin- 
 guished the debt, but merely having protected 
 the defendant from an action on it, by means of 
 the statutory bar. In both of these cases the 
 action is founded upon the original debt. The 
 case of a promise to pay a debt barred by the 
 statute of limitations is said to stand upon 
 inomalous grounds. The true explanation 
 of the doctnne seems to be that it was an in- 
 genious device for evading the statute adopted 
 at a time when the courts regarded it with 
 
 much disfavor. Here too the action is upou 
 the old debt, and not upon the new promise- 
 3 Mete. Mass. 439. The subject is learnedly 
 treated by Mr. Langdell (Contr. § 71 et tea ) 
 Some cases have held a feme bound by a 
 promise after coverture to pay a debt con. 
 tracted during coverture ; 24 Penn., 371 • ..» 
 Ewell, L. C. Cov. 332. ' ° 
 
 Under the English Bankruptcy Act of 
 18,69, debts discharged cannot be revived by 
 a promise made after adjudication; and under 
 the Infants' Relief Act of 1874, any promise 
 made after full age to pay a debt contracted 
 during infancy is void. 
 
 The discharge of a merely moral obligation 
 of another will not create a debt, unless made 
 in pursuance of an express request or actual 
 agreement to that effect ; Leake, Contr. 86. 
 
 MORATITR OR DEMORATUB IN 
 liEGrE. He demurs in law. He rests on 
 the pleadings of the case, and abides thejudg- 
 ment of the court. 
 
 MORE OR LESS. Words, in a convey- 
 ance of lands or contract to convey lands, im- 
 porting that the quantity is uncertain and not 
 warranted, and that no right of either party 
 under the contract shall be affected by a de- 
 ficiency or excess in the quantity. 17 Yes. 
 394 ; Powell, Pow. 397. So in contracts of 
 sale generally. 2 B. & Ad. 106. 
 
 In case of an executory contract, equity 
 will enforce specific performance without 
 changing the price, if the excess or deficiency 
 is very small; 17 Ves. 394; Powell, Pow. 
 397 ; 24 Miss. 597 ; 13 Tex. 223 ; but not if 
 the excess or deficiency is great, even thougli 
 the price reserved be per acre. In 2 B. & 
 Ad. 106, it was held that an excess of fifty 
 quarters over three hundred quarters of gmin 
 was not covered by the words "three hun- 
 dred more or less," if it was not shown that 
 so large an excess was in contemplation ; 1 
 Esp. 229. But a deed adding words more or 
 less to description of the property is not i 
 sufficient fulfilment of a contract to convey 
 the described property, when more or less was 
 not in such onginal contract, if there is an ac- 
 tual deficiency. But after such a conveyance 
 is made and a note given for the purchase- 
 money, the note cannot be defended against 
 on ground of deficiency ; 2 Penn. 533 ; 9 S. 
 & R. 80; 13 id. 143; 10 Johns. 297; 4 
 Mass. 414. 
 
 In case of an executed contract, equity will 
 not disturb it, unless there be a great defi- 
 ciency; 2 Russ. 670; 1 Pet. C. C. 49; or 
 excess ; 8 Paige, Ch. 31 2 ; 2 Johns. S7 ; Ow. 
 133; 1 V. & B. 375; or actual misrepre- 
 sentation without fraud, and there be a ma- 
 terial excess or deficiency ; 14 N. Y. 143. 
 
 Eighty-five feet, more or less, means eighty- 
 five feet, unless the deed or situation of the 
 land in some way controls it ; 20 Pick. 62. 
 
 The words more or less will not cover a dis- 
 tinct lot ; 24 Mo. 574. See Constbdction. 
 
 MORGANATIC IMARRIAGE. Alaw- 
 ful and inseparable conjunction of a single 
 
MORT D'ANCESTOK 
 
 257 
 
 MORTGAGE 
 
 man of noble and illustrious birth with a 
 single woman of an inferior or plebeian sta^ 
 tion, 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 morganatic 
 contract. 
 
 This relation was frequently contracted 
 during the middle ages ; the marriage cere- 
 mony was regularly performed, the union was 
 for life and indissoluble, and the children were 
 considered legitimate, though they could not 
 inherit. Fred. Code, b. 2, art. 3 ; Poth. 
 Du Mar. 1, c. 2, § 2; Shelf. Marr. & D. 10; 
 Pruss. Code, art. 835. 
 
 MORT D'ANCESTOH. An ancient 
 and now almost obsolete remedy in the Eng- 
 lish law. An assize of mart 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. Co. 
 Litt. 159. The remedy in such case is now 
 to bring ejectment. 
 
 MORTGAGtE. The conveyance of an 
 estate or property by way of pledge for the 
 security of debt, and to become void on pay- 
 ment of it. 4 Kent, 136. 
 
 An estate created by a conveyance absolute 
 in its form, but intended to secure the per- 
 formance of some act, such as the payment 
 of money, and the like, by the grantor or 
 some other person, and to become void if the 
 act is performed agreeably to the terms pre- 
 scribed at the time of making such convey- 
 ance. 1 Washi). R. P. c. 16, § 19. A condi- 
 tional conveyance of land, designed as a 
 security for the payment of money, the ful- 
 filment of some contract, or the performance 
 of some act, and to be void upon such pay- 
 ment, fulfilment, or performance. 44 Me. 299. 
 Both real and personal property may be mort- 
 gaged, and in substantially the same manner, 
 except that a mortgage being in its nature a 
 transfer of title, the laws respecting the neces- 
 sity of possession of personal property and the 
 nature of instruments of transfer being different, 
 require the transfer to be made differently in the 
 two cases. 
 
 The nature of the estate is indicated by the 
 etymology of its name, mort-gage, — the French 
 translation of the vadium mortuum, that is, dor- 
 mant or dead pledge, in contrast with vadium 
 vivum, an active or living one. They were both, 
 ordinarily, securities for the payment of money. 
 In the one, there was no life or active effect in 
 the way of creating the means of its redemption 
 by producing rents, because, ordinarily, the 
 mortgagor continued to hold possession and re- 
 ceive these. In the other, the mortgagee took 
 possession and received the rents towards 
 his debt, whereby the estate worked out as it 
 were its own redemption. Besides, in the one 
 case, if the pledge is not redeemed, it is lost or 
 dead as to the mortgagor ; whereas in the other 
 the pledge always survives to the mortgagor 
 when it shall have accomplished its purposes ; 
 Coote, Mortg. 4 ; Co. Litt. 305. In the case of 
 Welsh mortgages, however, which are now dis- 
 used, the mortgagee entered, taking the rents 
 and profits by way of interest on the debt, and 
 Vol. II._17 
 
 held the estate till the mortgagor paid the prin- 
 cipal. 
 
 Mortgages are to be distinguished from sales 
 with a contract for re-purchase. The distinction 
 is Important ; 3 Call, 428 ; 7 Watts, 401 ; but 
 turns rather upon the evidence in each case than 
 upon any general rule of distinction : 6 Blackf. 
 113 ; 15 Johns. 205 : 4 Pick. 349 ; 7 Cra. 218 ; 13 
 How. 139 ; 8 Paige, Ch. 243 ; 4 Denio, 493 ; 27 
 Mo. 113 ; 5 Ala. N. s. 698 ; 28 id. 226 ; 3 Tex. 
 119 ; 2 3.3. Marsh. 113 ; 3 id. 353 ; 2 Terg. 6 j 
 4 Ind. 101 ; 3 Tex. 119 ; 37 Me. 543 ; 7 Ired. Eq. 
 13, 167 ; 2 Seh. & L. 393 ; 30 Md. 495 ; 33 Gal. 
 326 ; 19 Iowa, 335 ; 80 111. 188 ; 41 Cal. 32 ; 35 
 Vt. 125 ; 70 Penn. 434 ; 21 Minn. 449 ; 8 Nev. 
 147 ; 49 Ga. 133 ; 62 Mo. 202 ; 73 111. 156 ; 50 
 N. T. 441 i 71 Penn. 264 ; 109 Mass. 130 ; 51 
 Miss. 339. 
 
 A mortgage differs from a pledge : the general 
 property passes by a mortgage, whilst by a 
 pledge only the possession or, at most, a special 
 property passes. ^Possession is inseparable from 
 the nature of a pledge, but is not necessaiy to a 
 mortgage ; 3 Mo. 516 ; 5 Johns. 358 ; 10 id. 741 : 
 13 id. 146 ; 2 Pick. 610 ; 2 N. H. 13 ; 5 Vt. 533 ; 
 26 Me. 499. 
 
 Mortgages were at common law held convey- 
 ances upon condition, and unless the condition 
 was performed at the appointed time the estate 
 became absolute ; in equity, however, the debt 
 was considered as the principal matter, and the 
 failure to perform at the appointed time a mat- 
 ter merely requiring compensation by interest in 
 the way of damages for the delay. This right to 
 redeem became known as the equity of redemp- 
 tion, and has been limited by statute, a common 
 period being three years. Courts of law have 
 now adopted the doctrines of equity with respect 
 to redemption, and in other respects to a con- 
 siderable extent. See 1 Washb. E. P. 477. 
 
 An equitable mortgage is one in which the 
 mortgagor does not actually convey the pro- 
 perty, but does some act by which he mani- 
 fests his determination to bind the same as a 
 security. See Equitable Mortgage. 
 
 A legal mortgage is a conveyance of pro- 
 perty intended by the parties at the time of 
 making it to be a security for the performance 
 of some prescribed act. 
 
 All kinds of property, real or personal, 
 which are capable of an absolute sale, may be 
 the subject of a mortgage : rights in remain- 
 der 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. § 1012; 4 
 Kent, 144 ; 1 Pow. Mortg. 17, 23; 3 Mer. 
 667; 32 Barb. 328; 13 Cal. 536; 45 111. 
 264; 12 N. J. Eq. 174; 108 Mass. 347; 68 
 111. 98 ; and where real estate is mortgaged 
 all accessions thereto, subsequent to the mort- 
 gage, will be bound by it ; 32 N. H. 484 ; 51 
 Cal. 620; 52 Ala. 123; 19 Wall. 544; 24 
 Mich. 416 ; 64 Penn. 366; and if specifically 
 stated to bind after-acquired property will 
 have that efiect ; 51 Barb. 45 ; 56 Me. 458 ; 
 14 Gray, 666; 11 Wall. 481; 19 Md. 472; 
 29 Conn. 282. 
 
 As to the form, such a mortgage must be 
 in writing, when it is intended to convey the, 
 legal title ; 1 Penn. 240. It is either in one 
 single deed which contains the whole contract, 
 — and which is the usual form, — or it is two 
 
MORTGAGE 
 
 258 
 
 MORTGAGE 
 
 separate instruments, the one containing an 
 absolute conveyance and the other a defeas- 
 ance; 2 Johns. Ch. 189; 15 Johns. 555; 3 
 Wend. 208; lid. 248; 2 Me. 152; 11 id. 
 346; 12 Mass. 456; 7 Pick. Mass. 157; 3 
 Watts, 188; 6 id. 405; 1 N. H. 89 ; 12 Me. 
 340; 5McL. 281; 65Penn. 311; 21 Minn. 
 620 ; 53 Me. 463 ; 13 Wise. 264 ; 38 Mo. 349 ; 
 65 N. C. 520 ; 18 Iowa, 376 ; 17 Ohio, 356 ; 
 and generally, whenever it is proved that a con- 
 veyance was made for purposes of security, 
 equity regards and treats it as a mortgage, and 
 attaches thereto its incidents ; 9 Wheat. 489 ; 
 1 How. 118; nid. 139; 2 Des. Eq. 564; 1 
 Hard. 6 ; 38 N. H. 22 ; 2 Cow. 246 ; 9 N. Y. 
 416; 25Vt. 273; iMd. Ch. Dec. 536; Sid. 
 608; 1 Murph. 116; lOYerg. 376; 3 J. J. 
 Marsh. 353; 5111.156; 4 Ind. 101 ; 2 Pick. 
 211 ; 20 Ohio, 464 ; 36 Me. •15 ; 1 Cal. 203 ; 
 1 Wise. 527 ; 9 S. & R. 434. In law, the 
 defeasance must be of as high a nature as the 
 conveyance to be defeated ; IN. H. 39 ; 13 
 Pick. 411 ; 22 id. 526 ; 43 Me. 206; 2 Johns. 
 Ch. 191; 7 Watts, 361; 1 Allen, 107; 13 
 Mass. 433; 53 Me. 963; 14 Pick. 467 ; 14 
 Pet. 201. The rule as to the admission 
 of parol evidence to establish the charac- 
 ter of a conveyance as a mortgage varies 
 in the different states. It is admissible in 
 Alabama, 38 Ala. 125; Arkansas, 18 Ark. 
 34 ; California, 24 Cal. 390 ; Connecticut, 30 
 Conn. 27; Florida, 10 Fla. .133; Illinois, 
 69 111. 276 ; Indiana, 22 Ind. 59 ; loiva, 25 
 Iowa, 191; Kansas, SKans. 381; Kentucky, 
 9 Dana, 109 ; Maryland, 21 Md. 474 ; Massa- 
 chusetts, 111 Mass. 219; Michigan, Harr. 
 Ch. lis'; Minnesota, 15 Minn. 69; Mis- 
 sissippi, 40 Miss. 469 ; Missouri, 27 Mo. 116 ; 
 New York, 52 N. Y. 258 ; New Jersey, 13 
 N. J. Eq. 358 ; North Carolina, 4 Dev. 50 ; 
 Ohio, Wright, 252 ; Pennsylvania, 69 Penn. 
 337 ; Rhode Island, 1 K. I. 30 ; South Caro- 
 lina, 3 Rich. Eq. 153 ; Tennessee, 10 Yerg. 
 .373 ; I'exas, 14 Tex. 142 ; Vermont, 42 Vt. 
 662 ; Virginia, 2 Munf. 40 ; Wisconsin, 9 
 Wise. 379 ; Nebraska, 1 Neb. 242; Nevada, 
 7 Nev. 200 ; West Virginia, 4 W. Va. 4. In 
 the courts of the United States ; 12 How. 139 ; 
 14 Pet. 201 ; and in England, Coote, Mort. 
 24; in Georgia, 7 Cobb. Dig. 1851, 274; and 
 in New Hampshire, 45 N. H. 321, it is for- 
 bidden by statute ; in Maine, 36 Me. 662 ; 43 
 Me. 206 ; in Michigan, 27 Mich. 231 ; in North 
 Carolina, Ired. 343, the question is in doubt, 
 and in Delaware has not been passed upon. 
 
 The mortgagor has, technically speaking, 
 in law a mere tenancy, subject to the right of 
 the mortgagee to enter immediately unless re- 
 strained by his agreement to the contrary ; 
 see 34 Me. 187 ; 9 S. & R. 302; 1 Pick. 87 ; 
 19 Johns. 825; 2 Conn. 1; 4 Ired. 122; 5 
 Bing. 421. In equity, however, the mortgage 
 is held a mere security for the debt, and only 
 a chattel interest ; and until a decree of fore- 
 closure the mortgagor is regarded as the real 
 owner; 2 J. & W. 190; 4 Johns. 41 ; 11 id. 
 534 ; 4 Conn. 235 ; 9 8. & R. 802 ; 5 Harr. 
 & J. 312 ; 3 Pick. 484; 7 Johns. 273. 
 
 The mortgagee, at law, is the owner of the 
 land, subject, however, to a defeat of title by 
 performance of the condition, with a right to 
 enter at any time. See 21 N. H. 460- 9 
 Conn. 216; 19 Me. 53; 2 Denio, 170. He 
 is, however, accountable for the profits before 
 foreclosure, if in possession ; 31 Me. 104 • 82 
 id. 97; 5 Paige, Ch. 1; 11 id. 436;' 24 
 Conn. 1 ; 1 Halst. Ch. 346 ; 2 id. 548 • 2 
 Cal. 387 ; 6 Fla. 1 ; 1 Washb. E. P. 577. 
 The different states fluctuate somewhat be- 
 tween the rules of equity and those of law 
 or, rather, have engrafted the equitable rules 
 upon the legal to an unequal extent ; 31 Penn. 
 295 ; 10 Ga. 65 ; 27 Barb. 603 ; 3 Mich! 
 581; 3 Greene, Iowa, 87; 4 Iowa, 571; 4 
 M'Cord, 336; 9 Cal. 123, 366; 1 Washb. 
 R. P. 517 et seq.; Jones, Mort. § 664 et seq. 
 
 Assignment of mortgages must be made in 
 accordance with the requirements of the Sta. 
 tute of Frauds ; 15 Mass. 233 ; 6 Gray, 152; 
 32 Me. 197; 33 id. 196; 18 Penn. 394; 7 
 Blackf. 210; 5 Denio, 187; 3 Ohio St. 471; 
 27 N. H. 300; 5 Halst. Ch. 156; 21 Ala. s. 
 s. 497 ; 51 Me. 121 ; 22 Tex. 464 ; 31 Penn. 
 142; 21 Wise. 476; 71 N. C. 492; 66 N. 
 H. 105. 
 
 Assumption of mortgage by grantee. The 
 question whether the acceptance by a grantee 
 of a deed subject to a specified mortgage as 
 part of the consideration, in the absence of 
 an express promise to pay ^it, implies such a 
 promise on his part, has been the subject of 
 conflicting decisions. But the more generally 
 accepted view is, that the clause "under and 
 subject," in a deed of conveyance, is a cove- 
 nant of indemnity only as between' grantor 
 and grantee for the protection of the former; 
 88 Penn. 450; 4 W. N. Cas. (Pa.) 497; 79 
 Penn. 439 ; 48 N. Y. 556 ; 4 N. J. Eq.454; 
 124 Mass. 254. A different view has been 
 held in New York, based in the later cases 
 on the doctrine that when one makes a pro- 
 mise for the benefit of a, third person, the 
 latter may maintain an action upon it; 24 
 N. Y. 1 78 ; 20 id. 268 ; 48 id. 253 ; 71 id. 
 26. But this doctrine is for the most part 
 confined to New York; see 26 Am. Eep. 
 660 n.; 1 Jones, Mort. §§ 758-763. 
 
 The remedies upon a mortgage by the 
 mortgagee in default of payment, are various. 
 In cases of real estate he may (1) bring eject- 
 ment on his legal title ; (2) file a bill and ob- 
 tain a decree of foreclosure, or a sale of the 
 property mortgaged ; (3) exercise a power of 
 sale in default of payment, if such power be 
 inserted in the instrument of mortgage ; (4) 
 take possession of the land, if he can do so 
 peaceably, his title becoming sure, and the 
 equity of redemption being barred after the 
 lapse of twenty years or a period egual to the 
 lapse of time necessary to bar a writ of entr)', 
 or in some states for a less period prpvidedby 
 law ; (5) by proceeding in accordance with 
 statutory enactments which vary in the dif- 
 ferent states. 
 
 In cases of chattel mortgages, the mort- 
 gagee's remedy is either (1) to bring a biUu 
 
MORTGAGEE 
 
 259 
 
 MOTHER 
 
 equity, obtain a decree of foreclosure, and a 
 sde ; (2) if he have the thing mortgaged in 
 his possession, to sell it after giving to the 
 mortgagor notice of such sale, and also of the 
 amount of the debt due. 
 
 Consult Washburn, Williams, on Real Pro- 
 perty; Billiard, Coote, Fisher, Powell, 
 Thomas, Jones, Patch, Wilmot, Miller, on 
 Mortgages ; Story, on Equity ; Kent, Lect. 
 
 i.-viir. 
 
 MORTGAGEE. He to whom a mort- 
 gage is made. See Mortgage. 
 
 MORTGAGOR. He who makes a mort- 
 gage. See Mortgage. 
 
 MORTIFICATION. In Scotch Law. 
 A term nearly synonymous with mortmain. 
 
 MORTMAIN. A term applied to denote 
 the possession of lands or tenements by any 
 corporation sole or aggregate, ecclesiastical 
 or temporal. These purchases having been 
 chiefly made by religious houses, in conse- 
 quence of which lands became perpetually 
 inherent in one dead hand, this has occasioned 
 the general appellation of mortmain to be 
 applied to such alienations. 2 Bla. Com. 
 268; Co. Litt. 2 6; Erskine, Inst. 2. 4. 10; 
 Harrington, Stat. 27, 97. See Story, Eq. 
 Jur. § 1137 ; Shelf. Mortm. In England the 
 common law right of every corporation to take 
 and hold lands and tenements has been re- 
 strained by the statutes of mortmain, which 
 subject the power to acquire lands to the dis- 
 cretion of the crown or parliament as to the 
 grant of a license : 8 H. L. C. 712 ; 15 How. 
 367, 404. These statutes have not been re- 
 enacted in this country except in Pennsyl- 
 vania, where they extend only to prohibiting 
 the dedication of property to superstitious 
 uses, and grants to a corporation without a 
 statutory license; 7 S. & R. 313; 7 Penn. 
 233 ; Boone, Corp. § 40 ; see 101 U. S. 352. 
 
 The principal act on the subject now in 
 operation in England is that of 9 Geo. II. c. 
 36, and requires that no lands or money shall 
 be in any way given for any charitable use, 
 unless by deed executed in the presence of 
 two witnesses, twelve months before the do- 
 nor's death, and enrolled in chancery within 
 six calendar months of its execution, and un- 
 less such gift be made to take effect immedi- 
 ately, and be without power of revocation. 
 There are various exceptions to the act, such 
 as gifts to certain universities and colleges ; 
 Moz. & W. 
 
 MORTUARY. In Ecclesiastical Law. 
 A burial-place. A kind of ecclesiastical 
 heriot, bemg a customary gift of the second 
 best living animal belonging to the deceased, 
 claimed by and due to the minister in many 
 parishes, on the death of his parishioners, 
 whether buried in the church-yard or not. 
 These qfortuaries, like lay heriots, were ori- 
 ginally voluntary bequests to the church in 
 lieu of tithes or ecclesiastical dues neglected 
 in lifetime. See Soulscot. They were re- 
 duced to a certain amount by 21 Hen. VIII. 
 c. 6. They were sometimes payable to the 
 
 lord. Paroch. Antiq. 470. The mortuary 
 seems to have been carried to church with 
 the corpse, and was therefore sometimes called 
 corpse-present. 2 Burn, Eccl. Law, 563. 
 Anciently, a parishioner could not make a 
 valid will without an assignment of a suffi- 
 cient mortuary or gift to the church. 2 Bla. 
 Com. 427. 
 
 MORTUUM VADIUM. A mortgage. 
 
 MORTUUS (Lat.). Dead. Ainsworth, 
 Lex. So in sheriff's return mortuus est, he 
 is dead. O. Bridgm. 469 ; Brooke, Abr. 
 Retorne de Brief e, pi. 125 ; 19 Viner, Abr. 
 Return, lib. 2, pi. 12. 
 
 MOTHER. A woman who has borne a 
 child. 
 
 It is generally the duty of a mother to sup- 
 port her child, when she is left a widow, until 
 he becomes of age or is able to maintain him- 
 self ; 8 Watts, 366; 16 Mass. 135; 3 N. H. 
 29 ; 4 id. 95 ; 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. Ch. 
 387 ; 2 Mass. 415 ; 4 id. 97 ; but will be en- 
 titled to an allowance out of the income of his 
 estate, and, if need be, out of the principal, 
 for his maintenance ; 2 Fla. 36 ; 2 Atk. 447 ; 
 5 Ves. 194; 7 id. 403; 3 Dutch. 388. Dur- 
 ing the life of the father she is not bound to 
 support her child, though she have property 
 settled to her separate use and the father be 
 destitute ; 4 CI. & P. 323 ; 11 Bligh, N. s. 62. 
 
 When the father dies without leaving a tes- 
 tamentary guardian at common law, the 
 mother is entitled to be the guardian of the 
 person and estate of the infant until he ar- 
 rives at fourteen years, when he is able to 
 choose a guardian ; Littleton, § 123 ; 3 Co. 
 38 ; Co. Litt. 84 6 ; 2 Atk. 14 ; Comyns, Dig. 
 Feme (B, D, E) ; 7 Ves. 348. See 10 Mass. 
 135, 140; 2 id. 415; Harp. 9 ; 1 Root, 487 ; 
 22 Barb. 178; 2 Dutch. 388; 2 Green, Ch. 
 221 ; 3 Dev. & B. 325 ; 9 Ala. 197. The right 
 of the widowed mother to the earnings and 
 services of her minor child does not appear to 
 have been precisely determined ; but it is by 
 no means so absolute as that of the father ; 31 
 Me. 240 ; 15 N. H. 486 ;. 4 Binn. 487 ; 3 Hill, 
 N. Y. 400 ; 14 Alal 123 ; 15 Mass. 272 ; 16 
 id. 28 ; Harp. 9. 
 
 In Pennsylvania, when the father dies with- 
 out leaving a testamentary guardian, the or- 
 phans' court will appoint a guardian until the 
 infant shall attain his fourteenth year. Dur- 
 ing the joint lives of the parents, the father 
 has the only control and custody of the chil- 
 dren, except when in special cases, as when 
 they are of tender years, or when the habits 
 of the father render him an unsuitable guar- 
 dian, the mother is allowed to have possession 
 of them ; 6 Rich. Eq. 344 ; 1 P. A. Browne, 
 143 ; 3 Binn. 320 ; 2 S. & R. 174; 13 Johns. 
 418; 2Phill. 786; 2 Coll. 661. 
 
MOTHER-IN-LAW 
 
 260 
 
 MULIER 
 
 The mother of a bastard child, as natural 
 guardian, has a right to the custody and con- 
 trol of such child, even as against the putative 
 father, and is bound to maintain it ; 2 Mass. 
 109; 12 id. 387, 483; 2 Johns. 875; 15 id. 
 208 ; 6 S. & R. 255 ; but after her death the 
 court will, in its discretion, deliver such child 
 to the father in opposition to the claims of the 
 maternal grandfather ; 1 Ashm. 65 ; Stra. 
 1162. See Bastard. 
 
 MOTHER-IN-LAW. The mother of 
 one's wife or of one's husband. 
 
 MOTION. In Practice. An applica^ 
 tion to a court by one of the parties in acause, 
 or his counsel, in order to obtain seme rule or 
 order of court which he thinks becomes neces- 
 sary in the progress of the cause, or to get re- 
 lieved in a summary manner from some mat- 
 ter which would work injustice. 
 
 Where the object of the motion may be 
 granted merely on request, without a hearing, 
 it is a motion of course ; those requiring a 
 hearing are special ; such as may be heard on 
 the application of one party alone, ex parte ; 
 those requiring notice to the other party, on 
 notice. 
 
 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. 
 145 ; 2 Yeates, 546. See 8 Bla. Com. 305 ; 
 2 Sell.Pr. 856 ; 15 Viner, Abr. 495; Graham, 
 Pr. 542 ; Smith, Ch. Pr. Index ; Mitchell, 
 Motions and Rules. 
 
 Under the English Bankruptcy Rules of 1870, 
 all applications to a court having jurisdiction in 
 bankruptcy, in the exercise of its primary juris- 
 diction, must in general be made by motion. 
 Any application made to a divisional court of 
 the high court of justice, or to a judge in an 
 action, under the rules appended to the Judicature 
 Act, 1875, must be made by motion. Moz. & W. 
 
 MOTION rOR DECREE. This has 
 hitherto been (since its introduction by stat. 
 15 & 16 Vict. c. 86) for the plaintiff in an 
 English chancery suit to obtain the decree to 
 which he claims to be entitled. It must be 
 distinguished from interlocutory motions. See 
 Hunt, Eq. PI. i. ch. 4 ; Moz. & W. 
 
 MOTION FOR JUDGMENT. In 
 English Practice. A proceeding whereby 
 a party to an action moves for the judgment 
 of the court in his favor, which he may 
 adopt under various circumstances enumerated 
 under the Judicature Act, 1875. 
 
 MOTIVE. The inducement, cause, or 
 reason why a thing is done. An act legal in 
 itself, and which violates no right, is not action- 
 able on account of the motive which actuated 
 it ; 6 Am. L. Reg. 528. 
 
 See Cause ; Consideration ; Mistake; 
 Witness 
 
 MOXTRNINQ. 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. 
 
 The expenses paid for such apparel. 
 
 It has been held, in England, that a de- 
 mand for mourning furnished to the widow 
 and family of the testator is not a funeral ei 
 pense ; 2 C. & P. 207. See 14 Ves.- 346 ■ i 
 V. & B. 364. See 2 Bell, Com. 166. ' 
 
 MOVABLES. Such subjects of property 
 as attend a man's person wherever he goes 
 in contradistinction to things immovable. , 
 
 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. So in the civil 
 law mohilia ; but this term did not properly 
 include living movables, which were termed 
 moventia. Calvinns, Lex. But these words, 
 mohilia and moventia, are also used synony- 
 mously, and in the general sense of " mov- 
 ables." Ibid. Movables are further distin- 
 guished 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; and 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. But it has been held that movable pro- 
 perty, in a legacy, strictly includes only such 
 as is corporeal and tangible ; not, therefore, 
 rights in action, as judgment or bond debts ; 
 19 Conn. 238, 245 ; 2 Dall. 142 ; 1 Wm. 
 Jones, 225. But see 17 Pick. 404. SeePEi- 
 soNAi Property; Fonbl. Eq. Index; 
 Pow. Mortg. Index ; 2 Bla. Com. 384 ; La. 
 Civ. Code, art. 464-472 ; 1 Bouvier, Inst. n. 
 462; 2 Steph. Com. 67; Shepp. TouoHOa 
 447; 1 P. Wms. 267. _ ' 
 
 In a will, " movables" is used in its largest 
 sense, but will not pass growing crop, nor 
 building materials on ground ; nor, as stated 
 above, rights in action ; 2 Wms. Exec. 1014 ; 3 
 A. K. Marsh. 123 ; 1 Yeates, 101 ; 2 Dall. 142. 
 
 In Scotch Law. Every right which a 
 man can hold which is not heritable ; opposed 
 to heritage. Bell, Diet. 
 
 MOVE. To apply to the court to take ac- 
 tion in any matter. See Motion. To pro- 
 pose a resolution, or recommend action in a 
 deliberative body. 
 
 MULATTO. A person bom of one white 
 and one black parent. 7 Mass. 88; 1 
 Bailey, 270; 2 id. 668; 18 Ala. 276. 
 
 Properly a mulatto is a person one of whose 
 parents is wholly black and the other wholly 
 white ; but the word does not always, though 
 perhaps it does generally, require so exactly 
 even a mixture of blood, nor is its significa- 
 tion alike in all the states. 1 Bish. Mar. & 
 D. § 808. 
 
 MULCT. A fine imposed on the convic- 
 tion of an offence. 
 
 An imposition laid on ships or goods by « 
 company of trade for the maintenanoe of con- 
 suls and the like. It is obsolete in the latter 
 sense, and but seldom used in the former. 
 
 MULIER. Of ancient "time, mu/ier was 
 taken for a wife, as it is commonly used for a 
 woman, and sometimes for a widow ; but it 
 has been held that a virgin is included under 
 
MULIER PUfSNfi 
 
 MUNICIPAL BONDS 
 
 the name m«Ker. Co. Litt. 1 70, 253 ; 2 Bla. 
 Com. 248. _ 
 
 The term is used always In contradlBtinction 
 to a bastard, mulier being always legitimate, Co. 
 Litt. 243, and seems to be a word corrupted from 
 mdior, or the French meUleitr, signifying lawful 
 issue born in wedlock. But by Glanville, lawful 
 issue are said to be mulier, not from mellor, but 
 because begotten e mtrfiere, and not ex concubindj 
 for he calls such issue ^Hos nrnlieratoi, opposing 
 them to bastards. Glanville, lib. 7, o. 1. If the 
 said lands "should, according to the queen's 
 lawes, descend to the right heire, then in right it 
 ought to descend to him, as next heire being 
 mulierlie borne, and the other not so borne." 
 Holinshed, Chron. of Ireland, an. 1.558. 
 
 MIT LIE R PtIISNB. See Bastaed 
 
 Eigne; Eisne. 
 
 MTJLTIPARIOTTSNBSS. In Equity 
 Pleading. The demand in one bill of several 
 matters of a distinct and independent nature 
 against several defendants. Cooper, Eq. PI. 
 182 ; 18 Ves. 80 ; 2 Mas. 201 ; 4 Cow. 682 ; 
 2 Gray, 467. 
 
 The uniting in one bill against a single de- 
 fendant several matters perfectly distinct and 
 unconnected. This latter is more properly 
 called misjoinder, which title see. 
 
 The subject admits of no general rules, but 
 the courts seem to consider the circumstances 
 of each case with reference to avoiding on 
 one hand a multiplicity of suits, and on the 
 other inconvenience and hardship to the de- 
 fendants from being obliged to answer mat- 
 ters with which they have, in great part, no 
 connection, and the complication and confu- 
 sion of evidence ; 1 My. &E C. 618; 5 Sim. 
 288; 3 Stor. 25; 2 Gray, 471; 3 McLean, 
 415 ; Story, Eq. PI. §§ 274, 530. It is to be 
 taken advantage of by demurrer; 2 Anstr. 
 469 ; or by plea and answer previous to a 
 hearing; Story, Eq. PI. 530, n.; or by the 
 court of its own accord at any time ; 1 My. 
 & K. 546; 3 How. 412; 5 id. 127. See, 
 generally, Story, Eq. PI. §§ 274-290, 530- 
 540; 4 Bouvier, Inst. n. 4243; Dan. Ch. 
 Pr. 
 
 MULTIPLE POINDING. In Scotch 
 Law, Double distress ; a name given to an 
 action, corresponding to proceedings by way 
 of interpleader, which inay be brought by a 
 person m possession of goods claimed by dif- 
 ferent persons pretending a right thereto, 
 calling the claimants and all others to settle 
 their claims, so that the party who sues may 
 be liable only "in once and single payment." 
 Bell, Diet.; 2 Bell, Com. 299 ; Stair, Inst. 
 3. 1. 39. 
 
 MTILTIPLICITY OP ACTIONS, OR 
 SUITS. Where repeated attempts are made 
 to litigate the same right. Fos such cases 
 equity provides a proceeding called a Bill of 
 Peace, q. v., and a court of common law may 
 gi'ant a rule for the consolidation of different 
 actions ; Lush, Pr. 964 ; L. K. 2 Ch. 8 ; Jud. 
 Act, 1873, p. 24, 89-91 ; Story, Eq. PI. 
 234 ; Bisb. Eq. 415. 
 
 MULTITUDE. The meaning of this word 
 is not very certain. By some it is said that 
 to make a multitude there must be ten per- 
 sons at least, while others contend that the 
 law has not fixed any number. Co. Litt. 257. 
 That two cannot constitute a multitude, see 
 104 Mass. 595. 
 
 MULTURE. In Scotch Law. The 
 quantity of grain or meal payable to the pro- 
 prietor of a mill, or to the multurer, his 
 tacksman, for manufacturing the corns. Er- 
 skine, Inst. 2. 9. 19.* 
 
 IklUNERA. The name given to grants 
 made in the early feudal ages, which were 
 merely tenancies at will or during the pleasure 
 of the grantor. Dalrymple, Feud. 198, 199; 
 Wright, Ten. 19. 
 
 MUNICEPS (Lat. from munus, office, 
 and capere, to take). In Roman Law. Eli- 
 gible to office. 
 
 A freeman born in a municipality or town 
 other than Rome, who had come to Rome^ 
 and though a Roman citizen, yet was looked 
 down upon as a provincial, and not allowed to 
 hold the higher offices (dignitates). 
 
 The inhabitants of a municipality entitled 
 to hold municipal offices. Voc. Jur. Utr. ; 
 Calvinus, Lex. 
 
 MUNICIPAL. Strictly, this word applies 
 only to what belongs to a city. It is used in 
 this sense in the terms municipal court, muni- 
 cipal ordinance, municipal officer. 
 
 Among the Romans, cities were called nvunici- 
 pia: these cities voluntarily joined the Roman 
 republic in relation to their sovereignty only, re- 
 taining their laws, their liberties, and iheir mag- 
 istrates, who were thence called municipal mag- 
 istrates. 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 Bla. Com. Municipal is used in con- 
 tradistinction to international : thus, we say, an 
 offence against the law of nations is an interna^ 
 tioual offence, but one committed against a par- 
 ticular state or separate community is a munici- 
 pal offence. 
 
 MUNICIPAL BONDS. This class of 
 securities is issued for sale in the market, 
 with the object of raising money, under the 
 expi'ess authority of the legislature. Not- 
 withstanding they are under seal, they are 
 clothed with all the attributes of negotiable or 
 commercial paper, pass by delivery or indorse- 
 ment, and are not subject to prior equities 
 (where the power to issue them exists) in the 
 hands of holders for value, who took before 
 maturity and without notice. The coupons 
 usually attached to such bonds, are likewise 
 negotiable, and may be detached and held 
 separately from the bond, and majr be sued 
 on by the holder in his own name without his 
 being the owner of the bonds to which they 
 were originally attached ; 1 Dill. Mun. Corp. 
 § 486 ; 3 WalL 327 ; 1 Dill. 338. 
 
 Coupons when severed from the bonds 
 cease to be incidents of the bonds, and be- 
 come independent claims, and do not lose 
 
MUNICIPAL CORPORATION 262 MUNICIPAL CORPORATION 
 
 their validity, if for any cause the bonds are 
 cancelled or paid before maturity ; 20 Wall. 
 683. See Bonds ; Coupons. 
 
 MUNICIPAL CORPOHATION. A 
 public corporation, created by government for 
 political purposes, and havjng subordinate and 
 local powers of legislation : e. jr. a county, 
 town, city, etc. 2 Kent, 275; Ang. & A. 
 Corp. 9, 29 ; Baldw. 222. An incorporation 
 of persons, inhabitants of a particular place, 
 or connected with a particular district, ena- 
 bling them to conduct fts local civil sovern- 
 ment. Glover, Mun. Corp. 1. In the United 
 States, until recently, municipal corporations 
 have been created singly, each with its special 
 or separate charter passed by the legislature 
 of the state. These charters define the ter- 
 ritorial boundaries ; provide for a governing 
 body, usually styled the town or city council, 
 with representatives to be chosen from differ- 
 ent wards of the city or town ; fix the quali- 
 fications of voters ; specify the mode of hold- 
 ing elections ; provide for the election of a 
 mayor, and contain a minute and detailed 
 enumeration of the powers of the city coun- 
 cil; 1 Dill. Mun. Corp. § 39. 
 
 In England, the municipal corporation 
 acts, 5 & 6 Will. IV. ch. 76, abolish all spe- 
 cial charters, with enumerated exceptions, 
 and enact general provisions for the incorpo- 
 ration, regulation, and government of muni- 
 cipal corporations. These acts have been 
 followed in many of the United States. The 
 usual scheme is to grade corporations into 
 classes, according to their size, as into cities 
 of the first class, second class, etc., and towns 
 or villages, and to bestow on each class such 
 powers as the legislature deems expedient; 
 but the powers and mode of organization of 
 corporations of each class are uniform ; 1 
 Dill. Mua. Corp. § 41, n. 
 
 The scope of legislative authority over mu- 
 nicipal corporations is limited only by the 
 terms of the state and federal constitutions, 
 and the necessary implications derived there- 
 from; 24 Mich. 44; s. c. 9 Am. Rep. 108. 
 Those matters which are of concern to the 
 state at large, although exercised within de- 
 fined limits, such as the administration of jus- 
 tice, the preservation of the public peace, and 
 the like, are held to be under legislative con- 
 trol ; while the enforcement of municipal by- 
 laws proper, the establishment of gas works, 
 of water works, the construction of sewers, 
 and the like, are matters which pertain to the 
 municipality as distinguished from the state 
 at large; 69 111. 326; 62 Mo. 370; 51 Cal. 
 15 ; 28 Mich. 228 ; s. c. 15 Am. Rep. 202 ; 
 97 U. S. 284. 
 
 As ordinarily constituted, municipal corpo- 
 rations have a dual character, the one govern- 
 mental, legislative, or public ; the other, pro- 
 prietary or private. In their public capacity 
 a responsibility exists in the performance of 
 acts for the public benefit, and in this respect 
 they are merely a part of the machinery of 
 government of the sovereignty creating them, 
 and the authority of the state is supreme. 
 
 But in their proprietary or private character 
 their powers are supposed to be conferred 
 not from considerations of state, but for the 
 private advantage of the particular copora- 
 tion as a distinct legal personality. As to 
 such powers, and to property acquired there- 
 under, and contracts made with reference 
 thereto, they are to be considered as quoad hoc 
 private corporations ; Dill. Mun. Corp. § 66, 
 and cases cited in note ; 102 Mass. 489 ; 122 
 Mass. 859 ; s. c. 23 Am. Rep. 332. If a 
 municipal corporation becomes indebted, the 
 rights of creditors cannot be impaired by any 
 subsequent legislative enactment; 4 Wall. 
 635 ; 19 Wise. 468 ; 100 U. S. 374 ; but m. 
 thority to a city to borrow money, and to tax 
 all the property therein to pay the debt thus 
 incurred, does not necessarily deprive the 
 state of the power to modify taxation, if the 
 rights of creditors be not thereby impaired ; 
 27 Ohio St. 426 ; s. c. 22 Am. Rep. 321. 
 So, also, as trustee for the general public, 
 the legislature has control over the public pro- 
 perty and the subordinate rights of municipal 
 corporations. It can authorize a railroad 
 company to occupy the streets of a city with- 
 out its consent and without payment; 31 
 N. Y._164; 13 La. An. 326. It can direct 
 a municipal corporation to build a bridge over 
 a navigable watercourse within its hmits, or 
 appoint agents of its own to build it, and em- 
 power them to create a loan for the purpose, 
 payable by the corporation; 58 Penn. 320; 
 17 Wall. 322 ; 104 Mass. 236 ; 47 Md. 145. 
 The legislature may compel a city to pay its 
 bonds, by taxation, but not to pay an obliga- 
 tion for which no consideration had been re- 
 ceived ; 95 U. S. 644. And in general the 
 legislature may, by subsequent legislation, 
 validate acts of a municipal corporation other- 
 wise invalid ; 97 U. S. 687 ; Cooley, Const. 
 Lim. 371 ; 101 U. S. 196. The legislature 
 may also interfere with the administration of 
 public charitable trusts by municipal corpora- 
 tions; 64 Penn. 169; but not with those of 
 a private character where a contract has been 
 constituted; 11 Me. 118; Dartmouth Coll. 
 Cas., 4 Wheat. 518 ; 63 N. H. 375. 
 
 "A municipal corporation possesses andean 
 exercise the following powers, and no others : 
 first, those granted in express words ; second, 
 those necessarily or fairly implied in or inci- 
 dent to the powers expressly granted; 
 third, those essential to the declared objects 
 and purposes of the corporation, not simply 
 convenient but indispensable ; " 70 N. C. 14; 
 s. c. 16 Am. Rep. 766 ; 93 111. 236 ; 8 Wall. 
 820 ; 1 Dill. Mun. Corp. § 89 ; 22 Am. Eep. 
 261. 
 
 A strict rather than a liberal construction 
 of the powers of a municipal corporation is 
 adopted ; 48 Iowa, 624 ; s. C. 22 Am. Kep. 
 261 ; 23 How. 436. 
 
 The power to borrow money and issne 
 bonds therefor, cannot be included among 
 the implied powers of a municipal corpora- 
 tion, but when a dqbt has been lawfully ifr 
 curred, it is not prohibited from issuing bonds 
 
MUNICIPAL LAW 
 
 263 
 
 MURDER 
 
 for its payment; 84 Penn. 487 ; but see 19 
 Wall. 468; 5 Bill. 165. A municipal cor- 
 poration has power to offer a reward for the 
 detection of criminals; 7 Gray, 374; 92 U. 
 S. 73; contra, 57 Me. 174; 48 Iowa, 472; 
 to erect public buildings ; 8 Allen, 9 ; to 
 make police regulations ; 61 Ga. 572 ; see 
 Police Powers ; to give aid to railroad cor- 
 porations by issuing bonds. See Bonds. 
 
 Municipal corporations may be dissolved in 
 England: 1, by act of parliament ; Co. Litt. 
 176, n. ; 2, by the loss of an integral part ; 
 9 Gill & J. 365; 3, by a surrender of its 
 franchise; 6 Term, 277; 4, by forfeiture of 
 its charter; 6 Beav. 220 ; 76 111. 419. 
 
 In the United States these modes of disso- 
 lution are not applicable, excepting the first ; 
 there can be no dissolution except by an 
 act of the legislature which created the cor- 
 poration. 
 
 The change of name does not dissolve a 
 corporation ; 7 Wall. 1 ; 93 U. S. 266 ; but 
 the power of so changing exists only in the 
 legislature. 
 
 Upon the division of a municipal corpora- 
 tion into two separate towns, each is entitled 
 to hold in severalty the public property within 
 its limits; 2 Wend. 159. In actions gene- 
 rally, the original minutes or records of a cor- 
 poration are competent evidence of its acts 
 and proceedings; 6 Wend. 651. It is com- 
 petent for the legislature to delegate to muni- 
 cipal corporations the power to make by-laws 
 and ordinances which have, when authorized, 
 the force, in favor of the municipality and 
 against the persons bound thereby, of laws 
 
 ?assed by the legislature of the state ; 44 
 owa, 508 ; s. c. 24 Am. Rep. 756 ; but or- 
 dinances cannot enlarge or change the charter 
 by enlarging, diminishing, or varying its pow- 
 ers ; 22 How. 422 ; 12 Wall. 349. 
 
 Contracts may be entered into by the offi- 
 cers of a corporation, binding upon it, without 
 the use of the corporate seal; 12 Mich. 138. 
 Without express legislative authority a muni- 
 cipality cannot act as surety or guarantee ; 19 
 Iowa, 199. 
 
 MUNICIPAL LA'W. In contradistinc- 
 tion to international law, is the system of law 
 proper to any single nation or state. It is the 
 rule or law by which a particular district, 
 community, or nation is governed. 1 Bla. 
 Com. 44. 
 
 Municipal law contrasts with international 
 law, in that it is a system of law proper to a single 
 nation, state, or community. See Municipal 
 Law. In any one state the municipal law of 
 another state is foreign law. See Fobeign Law. 
 A conflict of laws arises where a case arising in 
 one state involves foreign persons or interests, 
 and the foreign and the domestic laws do not 
 agree as to the proper rule to be applied. See 
 Conflict of Laws. 
 
 The various provinces of municipal law are 
 characterized according to the subjects with 
 which they respectively treat: as, criminal 
 or penal law, civil law, military law, and the 
 like. Constitutional law, commercial law, 
 parliamentary law, and the like, are depart- , 
 
 ments of the general provinces of civil law, 
 as distinguished from criminal and military 
 law. 
 
 MUNICIPa£iTY. The body of offi- 
 cers taken collectively, belonging to a city, 
 who are appointed to manage its affairs and 
 defend its interests. 
 
 MUNIMENTS. The instruments of 
 writing and written evidences which the 
 owner of lands, possessions, or inheritances 
 has, by which he is enabled to defend the 
 title of his estate. Ternies de la Ley ; Co. 
 3d Inst. 170. Cathedrals, collegiate churches, 
 etc., sometimes have a muniment house, 
 where the seal, evidences, charter, etc., of 
 such cathedral are kept. Cowel. 
 
 MUNUS. A gift ; an office ; a benefice, 
 or feud. A gladiatorial show or spectacle. 
 Calvinus, Lex. ; Du Cange. 
 
 M U R A G- E . A toll formerly levied in 
 England for repairing or building public 
 walls. 
 
 MURAL MONUMENTS. Monuments 
 made in walls. 
 
 Owing to the difficulty or impossibility of 
 removing them, secondary evidence may be 
 given of inscriptions on walls, fixed tables, 
 gravestones, and the like. 2 Stark. 274. 
 
 MURDER. In Criminal Law. The 
 wilful killing of any subject whatever, with 
 malice aforethought, whether the person slain 
 shall be an Englishman or a foreigner. 
 Hawk. Pi! Cr. b. 1, c. 13, s. 3. Russell says, 
 the killing of any person under the king's 
 peace, with malice prepense or aforethought, 
 either express, or implied by law. 1 Russ. Cr. 
 421 ; 5 Cush. 304. 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. Co. 3d Inst. 47. 
 
 The latter definition, which has been adopted 
 by Blackstone, 4 Com. 195 ; Chitty, 2 Cr. Law, 
 734, and others, has been severely criticized. 
 What, it has been asked, are sound mind and 
 discretion ? What has soundness of memory to 
 do with the act? be it ever so imperfect, how 
 does it afifect the guilt ? If discretion is neces- 
 sary, 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 malice aforethought ? Livingston, Pen. Law, 
 186. It is, however, apparent that some of the 
 criticisms are merely verbal, and others are an- 
 swered by the construction given in the various 
 cases to the requirements of the definition. See, 
 especially, 5 Cush. 304. 
 
 According to Coke's definition, there must 
 be, Jirst, sound mind and memory in the 
 agent. By this is understood there must be a 
 will and legal discretion. Second, 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 prove fatal ; Hawk. PI. Cr. b. 1, 
 c. 31, s. 4; 1 Hale, PI. Cr. 431; 1 Ashm. 
 
MURDRUM 
 
 264 
 
 MUTE 
 
 289 ; 9 C. & P. 356 ; 2 Palm. 545. Third, 
 the party killed must have been a reasonable 
 being, alive and in the king's peace. To con- 
 stitute a birth, so as to maks the killing of a 
 child murder, the whole body must be de- 
 tached from that of the mother ; but if it has 
 come wholly forth, but is still connected by 
 the umbilical cord, such killing will be mur- 
 der; 2 Bouvier, Inst. n. 1722, note. Foeti- 
 cide would not be such a killing ; he must 
 have been in rerum natura. Fourth, malice, 
 either express or implied. It is this circum- 
 stance which distinguishes murder from every 
 description of homicide. See Malice. 
 
 In some of the states, by legislative enact- 
 ments, murder has been divided into degrees. 
 In Pennsylvania, the act of April 22, 1794, 3 
 Smith, Laws, 186, makes "all murder which 
 shall be perpetrated by means of poison, or by 
 lying in wait, or by any other kind of wilful, 
 deliberate, and premeditated killing, or which 
 shall be committed in the perpetration or at- 
 tempt 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 ver- 
 dict whether it be murder of the first or second 
 degree ; but if such person shall be convicted 
 by confession, the court shall proceed, by ex- 
 amination of witnesses, to determine the de- 
 gree of the crime, and give sentence accord- 
 ingly." Many decisions have been made 
 under this act, to which the reader is referred. 
 See Wharton, Cr. Law. 
 
 Similar enactments have been made in Mas- 
 sachusetts, Tennessee, Virginia, Indiana, 
 New Hampshire, Ohio, and many other 
 states ; 3 Yerg. 283 ; 5 id. 340 ; 6 Rand. 
 721 ; 23 Ind. 231 ; 49 N. H. 399 ; Wright, 
 20. See, generally, Bishop, Gabbett, Rus- 
 sell, Wharton, Crim. Law ; Roscoe, Crim. 
 Ev. ; Archbold, Crim. Pract.; Hawkins, 
 Hale, Pleas of the Crown. 
 
 In Pleading. In an indictment for mur- 
 der, 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 man- 
 slaughter only ; Fost. Crim. Law, 424 ; Yelv. 
 205 ; 1 Chitty, Crim. Law, *243, and the 
 authorities and cases there cited. 
 
 MURDRUM. In Old English Law. 
 
 During the times of the Danes, and afterwards 
 till the reign of Edward III., murdrum was 
 the killing of a man in a secret manner ; and 
 in that it differed from simple homicide. 
 
 When a man was thus killed, and he was un- 
 known, 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. 
 
 The fine formerly imposed in England upon 
 a person who had committed homicide per in 
 
 fortuniwm or se defendendo. Prin. Pen. 
 Law, 219, note r. 
 
 MUSICAL COMPOSITION. The acts 
 of congress of February 3, 1831, and July 
 8, 1870, authorize the granting of a copy, 
 right 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 Qampb. 28, n.; 11 East 
 244. Not only an original composition, but 
 any substantially new arrangement or adapta- 
 tion of an old piece of music, is a proper sub. 
 ject of copyright; Taney, Dec. 72; L. E. 
 2 C. P. 340, 8. C. S id. 223; 2 BIatchf.39; 
 7 C. B. 4; Drone, Copyright, 175. See 
 Copyright. 
 
 TO MUSTER. To collect together and 
 exhibit soldiers and their arms. To employ 
 recruits, and put their names down in a book 
 to enroll them. In the latter sense the term im- 
 plies that the persons mustered are not already 
 in the service ; 8 Allen, 480. The same term 
 is applied to a list of soldiers in the service 
 of a government. Articles of War, K. S. 
 § 1342. 
 
 MUSTER-ROLL. A written document 
 containing the names, 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 neu- 
 trality. Marsh. Ins. b. 1, c. 9, s. 6, p. 407 ; 
 Jaeobsen, Sea Laws, 161 ; 2 Wash. C. C, 
 201. 
 
 MUSTIZO. A name given to the issue 
 of an Indian and a negro. Dudl. S. C. 174. 
 
 MUTATION. In French Law. Tiis 
 term is synonymous with change, and is par- 
 ticularly 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. 
 Merlin, Rfipert. 
 
 MUTATION OF LIBEL. In 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 ac- 
 tion, or asking one thing instead of another. 
 Dunl. Adm. Pr. 213 ; Law, Eccl. Law, 165- 
 167; 1 Paine, 435; 1 Gall. 123; 1 Wheat. 
 261. 
 
 MUTATIS MUTANDIS (Lat.). The 
 necessary changes. This is a phrase of fre- 
 quent practical occurrence, meaning that mat- 
 ters or things are generally the same, but to 
 be altered -mien necessary, as to names, offices, 
 and the like. 
 
 MUTE (miitus'). When a prisoner upon 
 his arraignment totally refuses to answer, m- 
 sists upon mere frivolous pretences, or refuses 
 to put himself upon the country, after pleading 
 not guilty, he is said to stand mute. 
 
 In the case of the United States vs. Hare 
 
MUTILATION 
 
 265 
 
 MUTUAL CONSENT 
 
 et al., Circuit Court, Maryland Dist., May 
 sess. 1818, the prisoner standing mute was 
 considered as if he had pleaded not guilty. 
 The act of congress of March 3, 1825, 3 Story, 
 Laws, 2002, has since provided as follows : 
 That if any person, upon his or her arraign- 
 ment 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, notwith- 
 standing, proceed to the trial of the person so 
 standing mute, or refusing to answer or plead, 
 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 and New York, and, in 
 England, the court now enters a plea of not 
 guifty for a prisoner refusing to plead, and 
 the trial proceeds as in other cases. 
 
 In former times, in England, the terrible 
 punishment or sentence of penance or peine 
 (probably a corrupted abbreviation of pris- 
 oned fort et dure was inflicted where a pris- 
 oner would not plead, and stood obstinately 
 mute. This judgment of penance for stand- 
 ing mute was as follows : that the prisoner be 
 remanded to the prison from whence he came, 
 and put into a low, dark chamber, and there 
 be laid on his back, on the bare floor, naked, 
 unless where decency forbids ; that there be 
 placed upon his body as great a weight of 
 iron as he could bear; and, more, that he 
 have no sustenance, save only on the first 
 day three morsels of the worst bread, and on 
 the second day three draughts of standing 
 water that should be nearest to the prison- 
 door ; and in this situation this should be al- 
 ternately his daily diet till he died or (as 
 anciently the judgment ran) till he answered. 
 Britton, c. 4, 22; Fleta, lib. 1, c. 34, § 33. 
 See Peine Forte et Duke. Prisoners 
 sometimes suffered death in this way to save 
 their property from forfeiture. In treason, 
 petit felony, and misdemeanors, however, 
 wilfully standing mute was equivalent to a 
 conviction, and the same punishment might 
 be imposed. Giles Corey, accused of witch- 
 craft, was perhaps the only person pressed to 
 death in America for refusing to plead. See 
 3 Bancroft's Hist. U. S. 93. 
 
 MUTILATION. In Criminal 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 Bla. Com. 130. 
 
 MUTINY. In Criminal Law. The un- 
 lawful 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 ; are- 
 volt. 
 
 By the act for establishing rules and articles 
 for _ the government of the armies of the 
 United States, it is enacted as follows : Article 
 22. Any officer or soldier, who begins, excites, 
 
 or causes, or joins in, any mutiny or sedi- 
 tion 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 a court-martial shall 
 direct. Article 23. Any officer or soldier 
 who, being present at any mutiny or sedition, 
 does not use his utmost endeavors to suppress 
 the same, or, having knowledge of any in- 
 tended mutiny, does not without delay give 
 information thereof to his commanding officer, 
 shall be punished by death, or suffer such other 
 punishment as a court-martial may direct. 
 
 And by the act for the better government of 
 the navy of the United States, it is enacted 
 as follows : Article 4. Any person in the 
 naval service who makes, or attempts to make, 
 any mutinous assembly, or, being witness to or 
 present at any mutiny, does not do his utmost 
 to suppress it, or knowing of any mutinous as- 
 sembly, or of any intended mutiny, does not 
 immediately communicate his knowledge to 
 his superior or commanding officer, shall suflTer 
 death or such other punishment as a court-mar- 
 tial may adjudge. And any person as aforesaid 
 who utters any seditious or mutinous words, 
 or joins in or abets any combination to weaken 
 the lawful authority of, or lessen the respect 
 due to, his commanding officer, or treats his 
 superior officer with contempt, or is disrespect- 
 ful to him, while in the execution of his office, 
 may be punished by such punishment as a 
 court-martial may adjudge. R. S. § 1624. 
 
 Mutiny, revolt, and the endeavor to make 
 a revolt or mutiny, on board merchant- vessels, 
 are made criminal, and the punishment pro- 
 vided for them ; E. S.§4596; 2 Curt. C. C. 
 225 ; 1 Woodb. & M. 306 ; 2 Sumn. 0. C. 
 582. 
 
 MUTINY ACT. In English Law. A 
 statute, annually passed, to punish mutiny and 
 desertion, and for the better payment of the 
 army and their quarters. It was first passed 
 12th of April, 1689. See 22 Vict. cc. 4, 5. 
 The passage of this biU is the only provision 
 for the payment of the army, and, like our 
 appropriation bills, it must be passed or the 
 wheels of government will be stopped. There 
 is a similar act with regard to the navy. 1 
 Sharsw. Bla. Com. 416, 417, n. 
 
 MUTUAL ACCOUNTS. Such as con- 
 tain mutual credits between the parties ; or an 
 existing credit on one side which constitutes a 
 ground for credit on the other, or where there 
 is an understanding that mutual debts shall be 
 a set-oflf pro tanto, between the parties. 27 
 Ark. 343. Such accounts, of however long 
 standing, are not barred by the statute of 
 limitations, if there be any items within the 
 prescribed limit; 6 Term, 189; Ang. Lim. 
 138, ch. xlv. See Merchants' Accounts. 
 
 MUTUAL CONSENT. Mutual consent 
 is of the essence of every contract, and therefore 
 it must always exist, in legal contemplation, 
 at the moment when the contract is made. It 
 never, however, is the subject of direct alle- 
 gation or proof, partly because it is generally 
 
MUTUAL CREDITS 
 
 266 
 
 NAME 
 
 incapable of direct proof, and partly because 
 every contract is made by acts performed. 
 Proof of the necessary acts carries with it 
 presumptive proof of mutual consent. Thus, 
 if two separate agreements be drawn up, gimed 
 and sealed, each of them purporting to be a 
 contract between A and B, and the parties, 
 intending to deliver one of the instruments, 
 deliver the other by mistake, there is no 
 contract made; Langd. Contr. 193. Where 
 the plaintift's acceptance of the defendant's 
 offer inadvertently made a slight change in a 
 date, there was held to be no contract, be- 
 cause there had not been mutual consent ; 4 
 Bing. 653. Mutual consent must extend to 
 the consideration as well as to the promise ; 
 Langd. Contr. 82. 
 
 MTJTUAIi CREDITS. Credits given by 
 two persons mutually, i.e. each giving credit 
 to the other. It is a more extensive phrase 
 than mutual debts. Thus, the sum credited 
 by one may be due at once, that by the other 
 payable in futuro : yet the credits are mutual, 
 though the transaction would not come within 
 the meaning of mutual debts ; 1 Atk. 230 ; 7 
 Term, 378. And it is not necessary that 
 there should be intent to trust each other: 
 thus, where an acceptance of A came into 
 the hands of B, who bought goods of A, not 
 knowing the acceptance to be in B's hands, 
 it was held a mutual credit ; 3 Term, 507, n. ; 
 4 id. 211; 3 Ves. 65; 8 Taunt. 156, 499; 
 1 Holt, 408; 2 Sm. Lead. Cas. 179 ; 26 Barb. 
 310 ; 4 Gray, 284 ; 9 N. J. Eq. 44 ; 5 Bobt. 
 (N. Y.) 348; 7D. &E. 378. 
 
 MUTUAL PROMISES. Promises simul- 
 taneously made by two parties to each other 
 each promise being the consideration of the 
 other. Hob. 88 ; 14 M. & W. 855 ; Add. 
 Contr. 22. If one of the promises be voidi 
 able, it will yet be good consideration, but 
 not if void ; Story, Contr. § 81 ; 2 StCDb 
 Com. 114. '^ ' 
 
 MUTUALITY. Reciprocity; an acting 
 in return. Webster, Diet. ; Add. Contr 
 622 ; 26 Md. 37. 
 
 MUTUARY. A person who borrows per- 
 sonal chattels to be consumed by him and re- 
 turned to the lender in kind ; the person who 
 receives the benefit arising from the contract 
 of mutuum. Story, Bailm. § 47. 
 
 MUTUUM. A loan of personal chattels 
 to be consumed by the borrower and to be re- 
 turned to the lender in kind and qnantity; 
 as, a loan of corn, wine, or money which are 
 to be used or consumed, and are to be replaced 
 by other corn, wine, or money. Story, Bailm. 
 § 228. See Loan for Use. 
 
 MYSTERY (said to be derived from the 
 French mestier, now written mitier, a trade). 
 A trade, art, or occupation. Co. 2d Inst, 
 668. 
 
 Masters frequently bind themselves in the 
 indentures with their apprentices to teach 
 them their art, trade, and mystery. See 
 Hawk. PI. Cr. c. 23, s. 11. 
 
 MYSTIC TESTAMENT. A will under 
 seal. La. Civ. Code, art. 1567; 5 Mart. La, 
 182 ; 5 La. 396 ; 10 id. 328 ; 15 id. 88. 
 
 N. 
 
 NAAM. See Namiitm. 
 
 ITAIL. A measure of length, equal to 
 two inches and a quarter. See Measure. 
 
 NAKED. This word is used in a meta>- 
 phorical 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 with- 
 out consideration, and for that reason it is 
 void ; a naked authority is one given without 
 any right in the a^ent, and wholly for the 
 benefit of the principal. 2 Bouvier, Inst. n. 
 1302. See Nudum Pactum. 
 
 NAME. One or more words used to dis- 
 tinguish a particular individual : as, Socrates, 
 Benjamin Franklin. 
 
 Names are Christian, as Benjamin, or sur- 
 names, as Franklin. One Christian name 
 
 only is recognized in law ; 1 Ld. Raym. 562 ; 
 Bacon, Abr. Misnomer (A) ; 7 Cold. 69 ; S 
 Johns. 84 ; though two or more names usually 
 kept separate, as John and Peter, may un- 
 doubtedly be compounded, so as to form in 
 contemplation of law but one; 5 Term, 195, 
 A letter put between the Christian and sur- 
 name as an abbreviation of a part of the 
 Christian name, as John B. Peterson, is no 
 part of either; 4 Watts, 329; 5 Johns. 84 1 
 14 Pet. 322; 3 id. 7; 2 Cow. 463; 17 Ala, 
 N. 8. 179; 10 Miss. 391 ; Co. Litt. 3 a; 1 
 Ld. Raym. 562 ; Viner, Abr. Misnomer (C 
 6, pi. 5, 6) ; Comyns, Dig. Indictment (6 1, 
 note u); Willes, 654; Bacon, Abr. Mmo- 
 mer and Addition; 3 Chitty, Pr. 164, 178; 
 52 Ind. 347 ; s. c. 21 Am. Rep. 179 n. But 
 see 7 W. & S. 406 ; 19 Ohio, 423 ; 1 Swan, 
 162; 20 Iowa, 98; 28 Tex. 772; 89 Dl. 
 
NAMIUM 
 
 267 
 
 NATIONAL BANKS 
 
 457 ; 25 Alb. L. J. 322, 823. The -words 
 junior and senior are no part of a name ; see 
 
 I Pick. 388; 2 Caines, 165; 9 N. H. 519; 
 22 Me. 171; 8 Conn. 280. The title Mrs. 
 is not a legal name ; 13 Vroom, 69. 
 
 In general, a corporation must contract and 
 sue, and be sued, by its corporate name ; 8 
 Johns. 295; 14 id. 238; 19 id. 300; 4 Rand. 
 359. Yet a slight alteration in stating the 
 name is unimportant if there be no possibility 
 of mistaking the identity of the corporation 
 Buina; 12 La. 444. See 20 Me. 41; 2 Va. 
 Cas.°362; 16 Mass. 141; 12 S. & R. 389. 
 See Misnomer. 
 
 The real name of a party to be arrested 
 must be inserted in the warrant, if known ; 8 
 East, 828; 6 Cow. 456; 9 Wend. 320; if 
 unknown, some description must be given ; 1 
 Chitty, Cr. Law, 39, 40 ; with the reason for 
 the omission; 1 Mood. & M. 281. 
 
 As to mistakes in devises, see Legacy. As 
 to the use of names having the same sound, 
 see Idem Sonans ; 1 Over. 434. As to the 
 effect of using a name having the same deri- 
 vation, see 2 RoUe, Abr. 135 ; 1 Wash. C. 
 C. 285. At common law, one could change 
 his name; 10 Fed. Rep. 894 ; 123 Mass. 415 ; 
 3 B. &Ald. 544. 
 
 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 au- 
 thority from his partner to make such a deed, 
 he cannot deny that his name is A and B ; 1 
 T. 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. See 3 P. & D. 271 ; 
 
 II Ad. & E. 594. 
 
 The right to the exclusive use of a name in 
 connection with a trade or business is familiar 
 to the law ; and any person using that name, 
 after a relative right of this description has 
 been acquired by another, is considered guilty 
 of a fraud or at least an invasion of another's 
 rights, and renders himself liable to an action, 
 or he may be restrained from the use of the 
 name by injunction. But the mere assump- 
 tion of a name which is the patronymic of a 
 family by a stranger who has never been 
 called by that name is a grievance to the 
 family for which the law aftords no redress ; 
 per Lord Chelmsford, L. R. 2 P. C. 441. See 
 11 Beav. 112 ; L. R. 2 Ch. 307. A name 
 may be a trade-mark ; L. R. 10 Ch. D. 436 ; 
 
 I Eq. 518; 13 Beav. 209; 13 Am. Rep. 
 111. A person cannot, however, have an 
 exclusive right of trade-mark in a name as 
 against all others bearing the same name, 
 unless the defendant uses the same brand or 
 stamp in connection with the name; 122 
 Mass. ; 96 U. S. 245 ; 50 Barb. 236. See 
 
 II Cent. L. J. 3 ; Election ; Trade-makk. 
 NAMIUM. An old word which signifies 
 
 the taking or distraining another person's 
 
 movable goods. 2 Inst. 140 ; 3 Bla. Com. 
 149. A distress. Ualrymple, Feud. Pr. 
 113. 
 
 NANTISSEMENT. In French Law. 
 The contract of pledge; if of a movable, it 
 is called gago, and if of an immovable, anti- 
 chrise ; Brown, Diet. 
 
 NARR (an abbreviation of the word nar- 
 ratio). A declaration in a cause. 
 
 NARRATOR. A pleader who draws 
 narrs. Serviens narrator, a serjeant-at-law. 
 Pleta, 1. 2, c. 37. Obsolete. 
 
 NARROW SEAS. In English Law. 
 Those seas which adjoin the coast of Eng- 
 land. Bacon, Abr. Prerogative (B 3). 
 
 NASCITURUS. Not yet born. This 
 term is applied in marriage settlements to the 
 unborn children of a particular marriage, na- 
 tus (born) being used to designate those al- 
 ready born. 
 
 NATAIiE. The state or condition of a 
 man acquired by birth. 
 
 NATION. An independent body politic. 
 A society of men united together for the 
 purpose of promoting their mutual safety and 
 advantage by the joint efforts of their com- 
 bined strength. 
 
 But every combination of men who govern 
 themselves independently of all others will not 
 be considered a nation ; a body of pirates, for 
 example, who govern themselves, are not a na- 
 tion. To constitute a nation, another ingredient 
 is required. The body thus formed must respect 
 other nations in general, and each of their mem- 
 bers in particular. Such a society has her affairs 
 and her interests ; she deliberates and takes re- 
 solutions in common, — thus becoming a moral 
 person, who possesses an understanding and will 
 peculiar to herself, and is susceptible of obliga- 
 tions and rights. Yattel, Frelim. §§ 1, 3 ; S Pet, 
 53. 
 
 It belongs to the government to declare 
 whether they will consider a colony which 
 has thrown off the yoke of the mother-country 
 as an independent state ; and until the gov- 
 ernment have decided on the question, courts 
 of justice are bound to consider the ancient 
 state of things as remaining unchaiiged ; 1 
 Johns. Ch. 543 ; 13 Johns. 141, 561. See 5 
 Pet. 1 ; 1 Kent, 21. 
 
 In American constitutional law the word 
 state is applied to the several members of the 
 American Union, while the word nation is 
 applied to the whole body of the people em- 
 braced within the jurisdiction of the federal 
 government ; Cooley, Const. Lim. 1. See 
 7 Wall. 720. 
 
 NATIONAL BANES. Banks created 
 and governed under the provisions of "The 
 National Bank Act." See Rev. Stat. § 5133 
 et seq.; title 62. 
 
 Congress, in the exercise of an undisputed 
 constitutional power to provide a currency for 
 the whole country, may constitutionally secure 
 the benefit of it to the people by appropriate 
 legislation, and to that end may restrain the 
 circulation of any notes not issued under its 
 
NATIONAL BANKS 
 
 268 
 
 NATIONALITY 
 
 authority ; 8 Wall. 548 ; this power, long dor- 
 mant, has been exercised by the National 
 Bank Act. 
 
 Any number of persons, not less than five, 
 may organize a national bank. They must 
 sign, acknowledge before a court of record or 
 notary public, and transmit to the comptroller 
 of the currency, an organization certificate, 
 containing the name of the bank, its place of 
 business, the amount of capital stock and the 
 number of shares into which it is to be divided, 
 the names and residences of the shareholders, 
 and the number of shares held by them, and 
 that the applicants desire to avail themselves 
 of the act of congress. The comptroller de- 
 cides whether the bank is lawfully entitled to 
 begin business; see 19 Mich. 196; if he so 
 finds, his certificate of this fact must be pub- 
 lished in a newspaper of the place where the 
 bank is to do business for sixty days. 
 
 One hundred thousand dollars is the mini- 
 mum capital allowed, except in places not ex- 
 ceeding 6000 inhabitants, when, by consent of 
 the comptroller, the capital may be |50,000 ; 
 where the population exceeds 50,000 the capi- 
 tal must be at least |200,000. The term 
 capital does not refer to borrowed money, but 
 to the property or moneys of the bank per- 
 manently invested in its business ; 7 Chi. L. 
 News, 339. The capital stock is divided into 
 shares of $100 each, which are personal pro- 
 perty. At least fifty per cent, thereof must 
 be paid in before organization, and the rest 
 in monthly instalments of ten per cent. each. 
 The stock of stockholders not paying these 
 instalments may be sold, on notice ; stock- 
 holders are individually responsible, in addi- 
 tion to what they have invested in their shares, 
 for all contracts, debts, and engagements of 
 the bank, to the extent of their stock at its 
 par value. This liability is several and not 
 joint ; 8 Wall. 605. 
 
 Upon its organization a national bank has 
 the usual corporate powers, also the right of 
 succession for twenty years, and the power to 
 exercise, by its board of directors or duly 
 authorized officers or agents, subject to law, 
 all such incidentar powers as shall be neces- 
 sary to carry on the business of banking ; by 
 discounting and negotiating promissory notes, 
 etc.; by receiving deposits, by buying and 
 selling exchange, coin and bullion ; by loan- 
 ing money on personal security ; and by ob- 
 taining, issuing, and circulating notes accord- 
 ing to the provisions of " title 62 of the Re- 
 vised Statutes." 
 
 The powers of national banks are to be mea- 
 sured by the act creating them ; 18 Wall. 
 589 ; 72 Penn. 466 ; 62 -Mo. 329 ; the words 
 of the act above quoted, " by discounting 
 and negotiating promissory notes, etc.," are 
 not to be read as limiting the mode of exer- 
 cising the "incidental powers" necessary to 
 carry on the business of banking, but as de- 
 scriptive of the kind of business which is 
 authorized; 22 Ohio St. 616. National banks 
 are designed to aid the government in the ad- 
 ministration of an important branch of the 
 
 public service. The states cannot exercise any 
 control over them, except so far as congre/j 
 may permit ; 91 U. S. 29 ; see 40 Md. 269, 
 
 National banks may purchase, hold, and 
 convey real estate for the following purposes 
 and for no others : 1. Such as shall be nece*. 
 sary for its immediate accommodation in the 
 transaction of its business. 2. Such as shall 
 be mortgaged to it in good faith by way 6f 
 security, for debts previously contracted. 3. 
 Such as shall be conveyed to it in satisfaction 
 of debts previously contracted in the conrseof 
 its dealings. 4. Such as it shall purchase at 
 sales under judgments, decrees, or mortgages 
 held by the association, or shall purchase to 
 secure debts due to it ; title in the latter case 
 to be held for no longer than five years. 
 
 It has been decided by the supreme court 
 of the United States that real estate security 
 on a contemporaneous loan of money by a 
 national bank is valid between the parties; 
 98 U. S. 621. See contra, 62 Mo. 329; 72 
 Penn. 456 ; 87 111. 181. A national bank 
 may take a purchase money mortgage on real 
 estate sold by it ; 29 La. An. 356. 
 
 The circuit courts of the United States have 
 jurisdiction of all suits by or against national 
 banks established in the district for which the 
 court is held ; K. S. ? 629 ; see 3 Dill. 298 ; ir. 
 respective of the amount in controversy or the 
 citizenship of the parties ; 19 Alb. L. J. 182. 
 A national bank may bring suit in the circuit 
 court out of its district, against a citizen of 
 the district where the court sits ; 8 Blatch. 
 137 ; 9 Nev. 134. A national bank may 
 waive its right to be sued in its own district; 
 2 Conn. 298; and state courts have jurisdic- 
 tion of suits brought by national banks ; 49 
 Vt. 1 ; 93 U. S. 130 : but this must be a state 
 court of its locality ; 14 Wall. 383 ; 101 Mass, 
 240. 
 
 National banks may go into liquidation and 
 be closed by a vote of the shareholders of two 
 thirds of its stock ; R. S. § 5220. In case 
 of a failure to pay its circulating notes, the 
 comptroller may appoint a receiver to wind up 
 national banks ; R. S. i 6234. 
 
 State banks may be changed into national 
 banks ; the change when made is a transit, 
 and not a creation. See 40 Mo. 140. See 
 Deposit; Interest; Proxy; Kesekvk. 
 
 NATIONAL DOMAIN. See Pubuc 
 Domain. 
 
 NATIONALIT7. Character, status, ot 
 condition with reference to the rights and 
 duties of a person as a member of some one 
 state or nation rather than another. 
 
 The term is in frequent use with regard to 
 ships. Nationality determined by one's teth- 
 place or parentage is called nationality of orir 
 gin ; that which results from naturalization i! 
 by acquisition. A woman upon marriage ac- 
 quires the nationality of her husband ; Morse 
 on Citizenship, 142. In feudal times nation- 
 alty was determined exclusively by the place 
 of birth, jure solis ; but under the laws w 
 Athens and Rome the child followed that ol 
 
NATIVE 
 
 269 
 
 NATURALIZATION 
 
 the parents, jure sanguinis. " Of these two 
 tests, the place of birth and the nationality of 
 the father, neither is at present adopted with- 
 out qualification by British, French, or Ameri- 
 can law. The laws of these countries exhib- 
 it, in fact, diiferent combinations of the two, 
 Great Britain and the United States laying 
 chief stress on the place of birth, while in 
 France the father's nationality determines, 
 though not absolutely and in all cases, that of 
 the child ; and this latter theory has found 
 acceptance among other European nations," 
 as Belgium, Bavaria, Prussia, and Spain. 
 Morse on Citizenship, 10. 
 
 Perhaps no more correct general rule can be 
 found than that recommended by Westlake. 
 "Legitimate children, wherever bom, are reg- 
 ularly members of the state of which their 
 parents form part the moment of their birth ; 
 but they may choose the nationality of the 
 place of their birth." See 2 Kent, 49, n. 1 ; 
 Cock. Nat. ; Whart. Confl. Laws ; Westlake, 
 Priv. Int. Law. See, generally, Allb- 
 GiANCK ; CiTrzEN J Dbnizen ; DoMiciL ; 
 Naturalization. 
 
 NATIVE, NATIVE CITIZEN. A 
 natural-born subject. 1 Bla. Com. 366. 
 Those born in a country, of parents who are 
 citizens. Morse, Citizenship, 12. A person 
 born within the jurisdiction of the United 
 States, whether after declaration of indepen- 
 dence or before, if he did not withdraw before 
 the adoption of the constitution; or the child 
 of a citizen born abroad, if his parents have 
 ever resided here ; or the child of an alien 
 born abroad, if he be in the country at the 
 time his father is naturalized. 8 Paige, Ch. 
 433 ; 21 Am. L. Reg. 77 ; 2 Kent, 39. See 
 Citizen. 
 
 NATURAL AFFECTION. The affec- 
 tion which a husband, a father, a brother, or 
 other near relative naturally feels towards 
 those who are so nearly allied to him, some- 
 times supplies the place of a valuable con- 
 sideration in contracts ; and natural affection 
 is a good consideration in a deed. 2 Steph. 
 Com. 61. See Bargain AND Sale ; Cove- 
 nant TO Stand Seized. 
 
 NATURAL CHILDREN. Bastards; 
 children born out of lawful wedlock. But in 
 , a statute declaring that adopted shall have all 
 the rights of "natural" children, the word 
 "natural" was used in the sense of legiti- 
 mate; 9 Am. L. Reg. 747. 
 
 In Civil La'w. Children by procreation, 
 as distinguished from children by adoption. 
 
 In Louisiana. Illegitimate children who 
 have been adopted by the father. La. Civ. 
 Code, art. 220. 
 
 NATURAL DAY. That space of time 
 included between the rising and the setting of 
 the sun. See Day. 
 
 NATURAL EQUITY. That which is 
 founded in natural justice, in honesty and 
 right, and which arises ex aequo et bono. 
 
 It corresponds precisely with the definition of 
 justice or natural law, which is a constant and 
 
 perpetual will to give to every man what ie his. 
 This kind of equity embraces so wide a range that 
 human tribunals have never attempted to enforce 
 it. Every code of laws has left many matters of 
 natural justice or equity wholly unprovided for, 
 from the difficulty of framing general rules to 
 meet them, from the almost impossibility of en- 
 forcing them, and from the doubtful nature ot 
 the policy of attempting to give a legal sanction 
 to duties of imperfect obligation, such as char- 
 ity, gratitude, or kindness. 4 Bouvier, Inst. n. 
 3720. 
 
 NATURAL FOOL. An idiot ; one bom 
 without the reasoning powers or a capacity to 
 acquire them. 
 
 NATURAL FRUITS. The natural pro- 
 duction of trees, bushes, and other plants, for 
 the use of men and animals, and for the re- 
 production of such trees, bushes, or plants. 
 
 This expression is used in contradistinction to 
 artificial or figurative fruits ; for example, apples, 
 peaches, and pears, are natural fruits ; interest 
 is the fruit of money, and this is artificial. 
 
 NATURAL INFANCY. A period of 
 non-responsible life, which ends with the sev- 
 enth year ; Whart. Diet. 
 
 NATURAL LAVT. The law of nature. 
 The divine will, or the dictate of right reason, 
 showing the moral deformity or moral neces- 
 sity there is in any act, according to its suitable- 
 ness or unsuitableness to a reasonable nature. 
 Sometimes used of the law of human reason, 
 in contradistinction to the fbvealed law, and 
 sometimes of both, in contradistinction to 
 positive law. 
 
 They are independent of any artificial connec- 
 tions, and differ from mere presumptions of law 
 in this essential respect, that the latter depend 
 on and are a branch of the particular system of 
 jurisprudence to which they belong ; but mere 
 natural presumptions are derived wholly by 
 means of the common experience of mankind, 
 without the aid or control of any particular rule 
 of law, but simply from the course of nature 
 and the habits of society. These presumptions 
 fall within the exclusive province of the jury, 
 who are to pass upon the facts. 3 Bouv. Inst. n. 
 3064 ; Greenl. Ev. § 44. 
 
 NATURAL OBLIGATION. One which 
 in honor and conscience binds the person who 
 has contracted it, but which cannot be en- 
 forced in a court of justice. Pothier, nn. 173, 
 191. See Obligation. 
 
 NATURAI. PRESUMPTIONS. In 
 Evidence. Presumptions of fact ; those 
 which depend upon their own form and effi- 
 cacy in generating belief or conviction in the 
 mind, as derived from those connections which 
 are pointed out by experience. 
 
 NATURALIZATION. The act by which 
 an alien is made a citizen of the United 
 States of America. 
 
 The act of adopting a foreigner and clothing 
 him with all the privileges of a native-born 
 citizen. 9 Wheat. 827; 9 Op. Att. Gen. 
 359. 
 
 A nation, or the sovereign who represents 
 it, may grant to a stranger the quality of a 
 citizen, by admitting him into the body of the 
 political society. This is called naturalization. 
 
NATURALIZATION 
 
 270 
 
 NAVIGABLE WATERS 
 
 Vattel, Laws of Nat., bk. 1, ch. xix. §§ 212- 
 214. 
 
 It is believed that every state in Christen- 
 dom accords to foreigners, with more or less 
 restrictions, the right of naturalization, and 
 that each has some positive law or mode of 
 its own for naturalizing the native-born sub- 
 jects of other states, without reference to the 
 consent of the latter for the release or the 
 transfer of the allegiance of such subjects ; 
 Hall, Int. Law, 693 ; see Morse, Citizenship, 
 66. 
 
 The constitution of the United States, art. 
 1, s. 8, vests in congress the power to esta^ 
 blish a uniform rule of naturalization, and 
 various laws have been passed in pursuance 
 of this authority. See Rev. Stat, of U. S. 
 
 The power to regulate naturalization is ex- 
 clusive in the federal government ; 7 H ow. 
 556; 5 CaL300; 19 How. 393. Before the 
 - adoption of the constitution, each state exer- 
 cised the right to naturalize citizens. A state 
 cannot make a citizen of the United States ; 
 4 Dill. 425. A state may confer the right of 
 citizenship on any one it thinks proper, but 
 only so far as the state itself is concerned ; 19 
 How. 393. By naturalization, a foreigner 
 becomes, to all intents and purposes, a citizen 
 of the United States, with no disability ex- 
 cept that he cannot become president or vice- 
 president. The provision of the constitution 
 applies to persons of foreign birth only; 19 
 How. 419; and not to a freeman of color, 
 born in the United States ; 26 Ind. 299. 
 Indians may be naturalized by act of con- 
 gross; 19 How. 393; but the naturalization 
 acts do not apply to Indians; 7 Op. Att. 
 Gen. 746. Entire communities have been 
 naturalized by a single act of national sover- 
 eignty; 36 Cal. 658. 
 
 Congress may invest the state courts with 
 jurisdiction to naturalize foreigners ; 33 N. 
 H. 89 ; and no state can confer jurisdiction 
 on any court which does not come within the 
 terms of the act of congress ; 50 N. H. 245. 
 
 An applicant for naturalization must have 
 been a resident of the United States for five 
 years next preceding his admission to citizen- 
 ship, but uninterrupted habitation is not re- 
 quired. 
 
 Courts of record, in naturalizing foreigners, 
 act judicially, ascertaining the fiicts and apply- 
 ing the law "to them ; 4 Pet. 407 ; the certifi- 
 cate of naturalization is the usual proof of 
 citizenship, though not the. only proof. The 
 judgment of the court, like every judgment, 
 has been decided to be complete' evidence of 
 its own validity ; id. The subject is fully 
 discussed in Morse, Citizenship. 
 
 Naturalization, of itself, confers no right 
 of suffrage ; Pars. Rights of an Amer. Citi- 
 zen, 190. 
 
 The 14th amendment to the constitution 
 provides that all persons born or naturalized 
 in the United States, and subject to the juris- 
 diction thereof, are citizens of the United 
 States and of the state wherein they reside. 
 
 A married woman may be naturalized ; 1 
 
 Cra. C. C. 372 ; even without the concurrence 
 of her husband ; 16 Wend. 617. See Citi- 
 zen ; Allegiance. 
 
 NATURALIZED CITIZEN. One who 
 being born an alien, has lawfully become a 
 citizen of the United States under the consti- 
 tution and laws. 
 
 In foreign countries he has a right to be 
 treated as such, and will be so considered 
 even in the country of his birth, at least for 
 most purposes ; 1 B. & P. 430. See Cm. 
 zen; Domicil; Inhabitant; Natdbal- 
 
 IZATION. 
 
 NAUCLERXJS (Lat.) . Master or owner 
 of a vessel. Vicat, Voe. Jur.; Calvinus 
 Lex. ' 
 
 NAUFRAGE. In French Maritime 
 Law. When, by the violent agitation of the 
 waves, the impetuosity of the winds, the 
 storm, or the lightning, a vessel is swallowed 
 up, or so shattered that there remain only the 
 pieces, the accident is called naufrage. 
 
 It differs from tchouement, which is when the 
 vessel remains whole, but is grounded ; or from 
 iris, which is when it strikes against a rock or a 
 coast ; or from sombrer, which is the sinking of 
 the vessel in the sea when it is swallowed up, 
 and which may be caused by any accident what- 
 ever. FardesBus, n. 643. See Wkeck. 
 
 NAULXTM (Lat.). Freight or passage 
 money. 1 Pars. Mar. Law, 124, n. ; Dig. 
 1. 6, § 1, qui potiores in pignore. 
 
 NAXJTA (Lat.). One who charters (ejj. 
 erect) a ship. . L. 1, § 1, ff. nauta, caupo; 
 Calvinus, Lex. Any one who is on board a 
 vessel for the purpose of navigating her. 3 
 Sumn. 213 ; Vicat, Voc. Jur. ; 2 Emerigon, 
 448 ; Pothier, Pand. lib. 4, tit. 9, u. 2 ; lib. 
 47, tit. 5, nn. 1, 2, 3, 8, 10. A carrier by 
 water. 2 Ld. Raym. 917. 
 
 NAVAL JiA'W. A system of regulations 
 for the government of the navy, 1 Kent, 
 377, n. Consult act of April 3, 1800; act 
 of December 21, 1861; act of July 17, 
 1862; Romans, Nav. Laws ; De Hart, Courts- 
 Martial. 
 
 NAVAL OFFICER. An officer of the 
 customs of the United States. 
 
 His office relates to the estimating duties, 
 countersigning permits, clearances, etc., cer- 
 tifying the collectors' returns, and similar 
 duties. 
 
 NAVARCHUS, NAVICULARTOS 
 (Lat.). In Civil Law. The master of an 
 armed ship. Navicularius also denotes the 
 master of a ship {patronus) generally ; Cic. 
 Ver. 4, 55; also, a carrier by water (ewrci- 
 tor navis). Calvinus, Lex. 
 
 NAVIGABLE WATERS. Those wa- 
 ters which afford a channel for useful com- 
 merce. 20 Wall. 430. 
 
 In its technical sense, the term navigable, 
 at common law, is only applied to the sea, 
 to arms of the sea, and to rivers which fio' 
 and reflow with the tide,— in other woids, to 
 tide-waters, the bed or soil of which is the 
 
NAVIGABLE WATERS 
 
 271 
 
 NAVIGATION, RULES OF 
 
 property of the crown. All other waters are, 
 in this sense of the word, unnavigable, and 
 are primd facie, strictly private property; 
 but in England even such waters, if naviga^ 
 ble in the popular sense of the term, are, 
 either of common right or by dedication, sub- 
 ject to the use of the public as navigable high- 
 ways, the fee or soil remaining in the riparian 
 proprietors ; Pavies, 149 ; 5 Taunt. 70.5 ; 20 
 C. B. N. 8. 1 ; 1 Pick. 180 ; 5 id. 199 ; Ang. 
 Tide Wat. 75-79. 
 
 In the United States, this technical use of 
 the term has been adopted in many of the 
 states, in so far as it is employed to designate 
 and define the waters the bed or soil of which 
 belongs to the state ; 4N. Y. 472; 26 Wend. 
 404 : 4 Pick. Mass. 268 ; 2 Conn. 481 ; 3 
 Me.'269; 31 id. 9; 16 Ohio, 540; 1 Halst. 
 31 ; 4 Wise. 486 ; 2 Swan, 9. But in Penn- 
 sylvania; 2 Binn. 475; 14 S. & R. 71 ; in 
 North Carolina; 3 Ired. 277; 2 Dev. 30; in 
 Iowa; 8 Iowa, 1; 4 id. 199 ; and in Ala- 
 bama; 11 Ala. 436 ; the technical use of the 
 term has been entirely discarded, and the 
 large fresh- water rivers of those states have 
 been decided to be navigable, not only as be- 
 ing subject to public use as navigable high- 
 ways, but also as having their bed or soil in 
 the state. 
 
 The rule of the common law, by which the 
 ebb and flow of the tide has been made the 
 criterion of navigability, has never been 
 adopted in any of the United States, or, if 
 adopted, it has been in a form modified and 
 improved to fit the condition of the country 
 and the wants of its inhabitants. According 
 to the rule administered in the courts of this 
 country, all rivers which are found ' ' of suffi- 
 cient capacity to float the products of the 
 mines, the forests, or the tillage of the coun- 
 try through which they flow, to market;" 
 8 Barb. 239 ; or which are capable of use 
 "for the floating of vessels, boats, rafts, or 
 logs ;" 31 Me. 9 (but see 6 Cal. 443) ; are 
 subject to the free and unobstructed naviga- 
 tion of the public, independent of usage or 
 of legislation ; 20 Johns. 90 ; 5 Wend. 358 ; 
 42 Me. 552; 18 Barb. 277; 5 Ind. 8; 2 
 Swan, 9; 29 Miss. 21; 6 Cal. 180 ; 2 Stockt. 
 211. See 51 Me. 256; 3 Oreg. 445 ; 8. c. 
 8 Am. Rep. 621 ; 42 Wise. 202. It is not 
 necessary that the stream should be navigable 
 all the year round; 31 Mich. 336. 
 
 In 108 Mass. 447, Gray, J., says: "The 
 term ' navigable waters ' as commonly used 
 in the law, has three distinct meanings ; 
 first, as synonymous with ' tide waters,' being 
 waters whether fresh or salt wherever the ebb 
 and flow of the sea is felt; or second, as 
 limited to tide-waters which are capable of 
 being navigated for some useful purpose ; or 
 third, as including all waters, whether within 
 or beyond the ebb and flow of the tide which 
 can be used for navigation." See 19 Am. L. 
 Reg. N. s. 147 ; Ang. Waterc. § 542. 
 
 In New York, it seems that courts are bound 
 to take judicial notice of what streams are, 
 'and what are not, highways, at common law; 
 
 8 Barb. 239 ; but it has been held that what 
 is a navigable stream is a mixed question of 
 law and fact ; if a stream is not navigable the 
 legislature cannot declare it to be so, because 
 the legislature cannot appropriate it to public 
 use without provision for compensation ; 35 
 N.Y. 454. 
 
 A grant by a government to a private indi- 
 vidual, of land upon a navigable river, is lim- 
 ited to the shore, while such a grant to a 
 political community extends to the middle of 
 the stream ; 4 Iowa, 199 ; 94 U. S. 324 ; 11 
 Fed. Rep. 394. 
 
 All navigable waters are for the use of all 
 citizens; 1 Pick. 180; 27 Tex. 68. The 
 general right to regulate the public use of navi- 
 gable waters is in the state, subject to the 
 power of congress when the water is a high- 
 way of commerce with foreign nations or 
 between states. The fact that it is so does not 
 exclude state regulations if congress has not 
 exercised its power; 2 Pet. 2115 ; or if the 
 state regulations do not conflict with congres- 
 sional regulations ; Cooley, Const. Lim. 73-9. 
 
 In the case of navigable waters used as a 
 highway of commerce between the states or 
 with foreign nations, no state can grant a mo- 
 nopoly for the navigation of any portion of 
 such waters ; 9 Wheat. 1 . A state has the 
 same power to improve such waters as it has 
 in the case of any highway ; Cooley, Const. 
 Lim. 738 ; and, having expended money for 
 such improvement, it may impose tolls upon 
 the commerce which has the benefit of the 
 improvement ; 3 McLean, 226 ; 8 Bush, 447. 
 The states may authorize the construction of 
 bridges over such waters, for railroads and 
 other species of highways, notwithstanding 
 they may to some extent interfere with navi- 
 gation. See 4 Pick. 460; 38 111. 467; 
 Bridge. A state may establish ferries over 
 such yaters ; 1 Black, 603 ; 41 Miss. 27 ; and 
 authorize the construction of dams ; Cooley, 
 Const. Lim. 740. A state may also regulate 
 the speed and general conduct of ships and 
 other vessels navigating its water highways, 
 provided its regulations do not conflict with 
 any regulations made by congress ; 1 Hill, N. 
 Y. 469, 470. See Cooley, Const. Lim. 737- 
 741. See Arm OF THE Sea; Reliction; 
 Rivek; Tide- Water. 
 
 NAVIGATION ACT. The stat. 12 Car. 
 II. c. 78. It was repealed by 6 Geo. IV. ce. 
 109, 110, 114. See 16 & 17 Vict. c. 107; 17 
 & 18 Vict. cc. 5 and 120; 3 Steph. Com. 
 145. 
 
 NAVIGATION, RULES OP. Rules 
 and regulations which govern the motions of 
 ships or vessels when approaching each other 
 under such circumstances that a collision may 
 possibly ensue. 
 
 These rules are firmly maintained in the 
 United States courts. 
 
 The rules of Navigation which prevailed 
 under the general maritime law, in the ab- 
 sence of statutory enactments, will first be 
 considered, although^ as hereinafter stated, 
 
NAVIGATION, RULES OF 
 
 272 
 
 NAVIGATION, RULES OF 
 
 they have lately been superseded by express 
 enactment in most of the commercial countries 
 of the world. 
 
 These rules were derived mainly from the 
 decisions of the high court of admiralty in 
 England, and of the superior courts of the 
 United States, and they are based upon the 
 rules promulgated by the corporation of the 
 Trinity House on the 30th of October, 1840, 
 and which may be found in full in 1 W. Rob. 
 488. These rules are substantially as follows : 
 
 For Sailing-Vessels about to meet. 
 
 First, those having the wind /air shall give 
 way to those on a wind [or close-hauled]. 
 
 Second, when both are going by the wind, 
 the vessel on the starboard tack shall keep her 
 wind, and the one on the larboard tack bear 
 up, thereby passing each other on the larboard 
 hand. 
 
 7'hird, when both vessels have the wind 
 large or abeam, and meet, they shall pass each 
 other in the same way, on the larboard hand ; 
 to effect which two last-mentioned objects the 
 helm must be put to port. 
 
 For a Sailing and a Steam Vessel about to 
 meet. 
 
 First, steam-vessels are to be considered in 
 the light of vessels navigating with a fair wind, 
 and should give way to sailing-vessels on a 
 wind on either tack. 
 
 Second, a steam- vessel and a sailing-vessel 
 going large, when about to meet, should each 
 port her helm and pass on the larboard side 
 of the other ; 1 W. Rob. 478 ; 2 id. 515 ; 4 
 Thornt. 40. 
 
 But in the United States courts it has been 
 almost uniformly held, and the rule is now 
 firmly established, that when a sailing-vessel 
 and a steamer are about to meet, the sailing- 
 vessel must, under ordinary circumstances, 
 and whether going large, or before the wind, 
 or close-hauled by the wind, keep her course, 
 and the steamer must take all the measures 
 necessary to avoid a collision ; 1 7 Bost. L. 
 Rep. 384 ; 18 id. 181 ; 10 How. 557 ; 17 id. 
 152, 178 ; 18 id. 581 ; 2 West. Law Month. 
 425 ; 3 Blatch. 92 ; Desty, Adm. § 357. 
 
 For Steam-Vessels about to meet. 
 
 First, when steam-vessels on different 
 courses are about to meet under such circum- 
 stances as to involve the risk of collision, each 
 vessel must put her helm to port, so as always 
 to pass on the larboard side of the other. 
 
 Second, a steam-vessel passing another in 
 a narrow channel must always leave the ves- 
 sel she is passing on the larboard hand.. 
 
 The following abstract of authorities may 
 also be referred to as furnishing rules of de- 
 cision (in addition to the general rules of 
 navigation) in the particular cases alluded to; 
 and they will generally be found applicable 
 in cases of collision arising under the new 
 regulations, as well as in cases arising under 
 the general maritime law. 
 
 When a steamer or other vessel is about to 
 pass another vessel proceeding in the same 
 general direction, she must . allow the fore- 
 most boat to keep her way and course and 
 must take the necessary measures to avoid a 
 collision ; 23 How. 448 ;' Abb. Adm. Pr. 108 
 110; Olc. 505; 1 Blirtch. 363. ' 
 
 A vessel under sail or steam is bound to 
 keep clear of a vessel stationary or at anchor 
 provided the latter is in a proper place, and 
 exhibits a proper light, — the presumption in 
 such cases being that the vessel in motion is 
 at fault; 1 How. 89; 19 id. 103; 3 Kent, 
 231 ; Conkl. Adm. 394, 396 ; Daveis, 359 j 
 1 Am. L. J. 387 ; 1 Swab. 88 ; 3 W. Kob 
 49. _ ' ' 
 
 A vessel entering a harbor is bound to keep 
 the most vigilant watch to avoid a collision ; 
 18 How. 584 ; Daveis, 359 ; and in the night- 
 time she ought generally to have her whole 
 crew on deck ; id. And see 3 Kent, 231 ; 1 
 Dods. 467. 
 
 By the general maritime law, vessels upon 
 the high seas are not ordinarily required con- 
 stantly to exhibit a light ; 2 W. Rob. 4 ; 3 
 id. 49 ; 2 Wall. Jr. 268 ; but by statute law 
 in England, the United States, Canada, and 
 most of the continental maritime states, steam 
 and sailing vessels were heretofore required 
 in the night-time, and under the circum- 
 stances and in the situation pointed out, to 
 carry lights. See 5 Stat, at L. 306, § 10 ; 9 
 id. 382, § 4 ; 10 id. 72, § 29 ; and the regu- 
 lations of the supervising mspectors under the 
 latter act ; the English Merchant Shipping 
 Act of 1854; 17 «e 18 Vict. c. 104, § 295; 
 and the regulations made under the same, 
 which will be found in Pratt on Sea Lights, 
 and Appendix ; the statutes of Canada, and 
 also the ordinances or regulations of France, 
 Russia, Prussia, Holland, Norway, Denmark, 
 Sweden, and Mecklenburg-Schwerin, in re- 
 gard to lights and the rules of navigation, 
 fiven in the Appendix to Pratt on Sea 
 lights. 
 
 The general rules above given may be, and 
 have been, abrogated by regulations made by 
 various governments, and which are binding 
 upon all vesselswithin the jurisdiction of that 
 
 fovernment ; The Aurora, before V. C. Adm. 
 udge Black, at Quebec, Oct. 1860; Story, 
 Confl. Laws, ch. 14; 1 Swab. 38, 63, 96; 1 
 How. 28; 19Bost. L. Rep. 220; 14 Pet. 99; 
 but it is beyond the power of the legislature 
 to make rules applicable to foreign vessels 
 when beyond their jurisdiction ; that is, more 
 than a marine league from their shores; 1 
 Swab. 96. And see 18 How. 223; 21 id. 
 184. It has, accordingly, been held that the 
 new English rule is not applicable in a case of 
 collision on the high seas between a British 
 and a foreign vessel, and that the Utter could 
 not set up in its defence a violation of the 
 English statute by the British vessel ; 1 Swab. 
 63, 96 ; and it was declared that in such a 
 case the general maritime law must be the 
 rule of the court. See 92 U. S. 31. 
 The rules of navigation under the general 
 
NAVIGATION, RULES OF 273 NAVIGATION, RULES OF 
 
 maritime law, particular statutes, and also the 
 rules of the maritime law, and of prior enact- 
 ments, in regard to vessels carrying lights, 
 have, in most commercial countries, been en- 
 tirely superseded by general rules of naviga- 
 tion, and general regulations in respect to 
 vessels' lights, which were agreed upon by 
 the governments of Great Britain and France 
 in 1863 (1 Lush. App. Ixxii.), and which 
 have since been adopted by most of the com- 
 mercial countries of Europe, and by Brazil 
 and most of the South American republics, as 
 well as by the United States and Canada. Id. 
 Ixxvii. and Ixxviii.; 13 Stat, at L. 58 ; Acts 
 of Canadian Pari. 1864; 14 Wall. 171. 
 These rules and regulations will be found in 
 the act of congress above referred to, and 
 which took effect Sept. 1, 1864. 
 
 This act is in the following words: 
 
 Be it enacted, by the senate and house of rep- 
 resentatives of the United States of America in 
 congress assembled. That from and after Sep- 
 tember one, eighteen hundred and sixty-four, the 
 following rules and regulations for preventing 
 collisions on the water be adopted in the navy 
 and the mercantile marine of the United States: 
 Provided, That the exhibition of any light on 
 board of a vessel of war of the United States 
 may be suspended whenever, in the opinion of 
 the secretary of the navy, the commander-iu- 
 cliief of a squadron, or tlie commander of a ves- 
 sel acting singly, the special character of the 
 service may require it. 
 
 Rule 1. In the following rules, every steam- 
 vessel which is under sail and not under steam 
 Is to be considered a sailing-vessel; and every 
 steam- vessel which is under steam, whether un- 
 der sail or not, is to be considered a steam-vessel. 
 
 Rule 2. The lights mentioned in the following 
 rules, and no others, shall be carried in all wea- 
 thers between sunset and sunrise. 
 
 Rule 3. All steam-vessels, when under way, 
 shall carry, — 
 
 («. ) At the foremast head a bright white light, 
 of such a character as to be visible on a dark 
 night, with a clear atmosphere^ at a distance of 
 at least five miles, so constructed as to show a 
 uniform and unbroken light over an arc of the 
 horizon of twenty points of the compass, so fixed 
 as to throw the light ten points on each side of 
 the vessel, viz., from right ahead to two points 
 abaft the beam on either side. 
 
 (5.) On the starboard side a green light, of 
 such a character as to be visible on a dark night, 
 with a clear atmosphere, at a distance of at least 
 two miles, and so constructed as to show a uni- 
 form and unbroken light over an arc of the hori- 
 zon of ten points of the compass, so fixed as to 
 throw the light from right ahead to two points 
 abaft the beam on the starboard side. 
 
 («.) On the port side a red light, of 
 such a character as to be visible on a dark night, 
 with a clear atmosphere, at a distance of at least 
 two miles, and so constructed as to show a uni- 
 form unbroken light over an arc of the horizon 
 of ten points of the compass, so fixed as to throw 
 the light from right ahead to two points abaft 
 the beam on the port side. 
 
 (<Z.) The green and red lights shall be fitted 
 with inboard screens, projecting at least three feet 
 forward from the lights, so as to prevent these 
 lights from being seen across the bow. 
 
 Rule 4. Steam-vessels, when towing other ves- 
 sels, shall carry two bright white masthead lights. 
 Vertically, in addition to their side-lights, so as 
 Vol. II.— 18 
 
 to distinguish them from other steam-vessels. 
 Each of these masthead lights shall be of the 
 same construction and character as the masthead 
 lights prescribed by rule three. 
 
 Rule S. All steam-vessels, other than ocean- 
 going steamers and steamers carrying sail, shall, 
 when under way, carry on the starboard and port 
 sides lights of the same character and construc- 
 tion, and in the same position as are prescribed 
 for side lights by i-ule three, except in the case 
 provided in rule six. 
 
 Rule 6. River-steamers navigating waters flow- 
 ing into the Gulf of Mexico, and their tribu- 
 taries, shall carry the following lights, viz. : one 
 red-light on the out-board side of the port smoke- 
 pipe, and one green light on the out-board side 
 of the starboard smoke-pipe. Such lights shall 
 show both forward and abeam on their respective 
 sides. 
 
 Rule 7. All coasting steam-vessels, and steam- 
 vessels other than ferry-boats and vessels other- 
 wise expressly provided for, navigating the bays, 
 lakes, rivers, or other inland waters of the United 
 States, except those mentioned in rule six; shall 
 carry red and green lights, as prescribed for 
 ocean-going steamers ; and, in addition thereto, 
 a central range of two white lights ; the after- 
 light being carried at an elevation of at least fif- 
 teen feet above the light at the head of the vessel. 
 The head-light shall be so constructed as to show 
 a good light through twenty points of the com- 
 pass, viz : from right ahead to two points abalt 
 the beam on either side of the vessel ; and the 
 after-light so as to show all around the horizon. 
 The lights for ferry-boats shall be regulated by 
 such rules as the board of supervising Inspectors 
 of steam-vessels shall prescribe. 
 
 Rule 8. Sail-vessels under way or being towed 
 shall carry the same lights as steam-vessels un- 
 der way, with the exception of the white mast- 
 head lights, which they shall never carry. 
 
 Rule 9. Whenever, as in the case of small ves- 
 sels during bad weather, the green and red lights 
 cannot be fixed, these lights shall be kept on 
 deck, on their respective sides of the vessel, 
 ready for instant exhibition, and shall, on the 
 approach of or to other vessels, be exhibited on 
 their respective sides in suflicient time to prevent 
 collision, in such manner as to make them most 
 visible, and so that the green light shall not be 
 seen on the port side, nor the red light on the 
 starboard side. 
 
 To make the use of these portahle lights more 
 certain and easy, they shall each be painted out- 
 side with the color of the light they respectively 
 contain, and be provided with suitable screens. 
 
 Rule 10. All vessels, whether steam or sail ves- 
 sels, when at anchor in roadsteads or fairways, 
 shall, between sunset and sunrise, exhibit where 
 it can best be seeii, but at a height not exceeding 
 twenty feet above the hull, a white light in a 
 globular lantern of eight inches in diameter, and 
 so constructed as to show a clear, uniform, and 
 unbroken light visible all around the horizon, at 
 a distance of at least one mile. 
 
 Rule 11. Sailing pilot-vessels shall not carry 
 the lights required for other sailing-vessels, but 
 shall carry a white light at the masthead, visible 
 all around the horizon, and shall also exhibit a 
 fiare-up light eveiy fifteen minutes. 
 
 Rule 12. Coal-boats, trading-boats, produce- 
 boats, canal-boats, oyster-boats, fishing-boats, 
 rafts, or other water craft, navigating any bay, 
 harbor, or river, by hand-power, horse-power, 
 sail, or by the current of the river, or which 
 shall be anchored or moored in or near the chan- 
 nel or fairway of any bay, harbor, or river, shall 
 carry] one or more good white lights, which 
 shall be placed in such manner as shall be pre- 
 
NAVIGATION, RULES OF 274 NAVIGATION, RULES OF 
 
 Bcribed by the board of supervising inspectors of 
 steam-vessels. 
 
 Rule 13. Open boats shall not be required to 
 carry the side-lights required for other vessels, 
 but shall, if they do not carry such lights, carry 
 a lantern having a green slide on one side and a 
 red slide on the other side, and, on the approach 
 of or to other vessels, such lantern shall be exhi- 
 bited in sufficient time to prevent collision, and 
 in such a manner that the green light shall not 
 be seen on the port side, nor the red light on the 
 starboard side. Open boats, when at anchor or 
 stationary, shall exhibit a bright white light. 
 They shall not, however, be prevented from 
 using a flare-up, in addition, if considered expe- 
 dient. 
 
 Kule 14:. The exhibition of any light on board of 
 a vessel of war of the United States may be sus- 
 pended whenever, in the opinion of the secretary 
 of the navy, the commander-in-chief of a squad- 
 ron, or the commander of a vessel acting singly, 
 the special character of the service may require 
 it. 
 
 Rule 15. Whenever there is a fog or thick 
 weather, whether by day or night, the fog-signals 
 shall be used as follows : — 
 
 (a.) Steam-vessels under way shall sound a 
 steam whistle placed before the funnel, not less 
 than eight feet from the deck, at intervals of not 
 more than one minute. 
 
 (6.) Sailing-vessels underway shall use a fog- 
 horn at intervals of not more than five minutes. 
 
 (c.) Steam-vessels and sailing-vessels when 
 not under way shall sound a bell at intervals of 
 not more than five minutes. 
 
 (d.) Coal-boats, trading-boats, produce-boats, 
 canal-boats, oyster-boats, flshing-boats, rafts, or 
 other water-craft, navigating any bay, harbor, or 
 river, by hand-power, horse-power, sail, or by 
 the current of the river, or anchored or moored 
 in or near the channel or fairway of any bay, 
 harbor, or river, and not in any port, shall sound 
 a fog-horn, or equivalent signal, which shall 
 make a sound equal to a steaiii whistle, at inter- 
 vals of not more than two minutes. 
 
 Rule 16. If two sailing-vessels are meeting end 
 on, or nearly end on, so as to involve risk of col- 
 lision, the helms of both shall be put to port, so 
 that each may pass on the port side of the other. 
 
 Rule 17. When two sailing-vessels are Crossing 
 so as to involve risk of collision, then, if they 
 have the wind on different sides, the vessel with 
 the wind on the port side shall keep out of the 
 way of the vessel with the wind on the starboard 
 side, except in the case in which the vessel with 
 the wind on the port side is close-hauled and the 
 other vessel free, in which case the latter vessel 
 shall keep out of the way. But if they have the 
 wind on the same side, or if one of them has the 
 wind aft, the vessel which is to windward shall 
 keep out of the way of the vessel which is to 
 leeward. 
 
 Rule 18. If two vessels under steam are meet- 
 ing end on, or nearly end on, so as to involve 
 risk of collision, the helms of both shall be put 
 to port, so that each may pass on the port side 
 of the other. 
 
 Rule 19. If two vessels under steam are cross- 
 ing so as to involve risk of collision, the vessel 
 which has the other on her own starboard side 
 shall keep out of the way of the other. 
 
 Rule 20. If two vessels, one of which is a sail 
 vessel and the other a steam-vessel, are proceed- 
 ing in such direction as to involve risk of colli- 
 sion, the steam-vessel shall keep out of the way 
 of the sail-vessel. 
 
 Rule 21. Every steam-vessel, when approach- 
 ing another vessel so as to involve risk of colli- 
 sion, shall slacken her speed, or, if necessary, 
 
 stop and reverse ; and every steam-vessel shall 
 when in a fog, go at a moderate speed. 
 
 Rule 23. Every vessel overtaking any other 
 vessel shall keep out of the way of the said last. 
 mentioned vessel. 
 
 Rule 23. Where, by rules 17, 19, SO, and 22 
 one of two vessels is to keep out of the way {he 
 other shall keep her course, subject to the quali 
 flcations contained in the following rule. 
 
 Rule 24. In obeying and construing these 
 rules, due regard must be had to all dangers of 
 navigation; and to any special circumstances 
 which may exist in any particular case, rendering 
 a departure from them necessary in order to 
 avoid immediate danger. 
 
 It is evident that these rules and regulations 
 were intended to supersede all other rules of 
 navigation, and every other system of vessels' 
 lights, wherever they may be adopted. They 
 establish a well-devised and complete system 
 of vessels' lights, and furnish plain and sim- 
 pie rules of navigation applicable to all the 
 ordinary cases of vessels approaching each 
 other under such circumstances as to involve 
 the risk of collision,— leaving extraordinary 
 cases, such as the meeting of vessels in ex- 
 tremely narrow or other very difficult chan- 
 nels (in respect to which no safe general rule 
 can be devised), to the practical good sense 
 and professional skill of those in charge of 
 such vessels. To such cases, and to cases in 
 which one vessel has been suddenly and unex- 
 pectedly brought into circumstances of imme- 
 diate danger entirely through the fault or mis- 
 management of another, or by inevitable acci- 
 dent, the exceptions contained in rule 24 will 
 apply. But a departure from these rules, to 
 be justifiable even in such cases, must be ne- 
 cessary in order to avoid immediate danger. 
 But that -necessity must not have been caused 
 by the negligence or fault of the party dis- 
 obeying the rule ; and courts of admiralty lean 
 against the exceptions ; 11 N. Y. Lee. Obs. 
 353, 355 ; 18 How. 581, 583 ; 1 W. Eob. 
 157, 478. And see 2 Curt. C. C. 141, 363; 
 18 How. 581. 
 
 The maritime law, however, requires that 
 in collision cases every violation of a rule of 
 navigation, and every other act or omission 
 alleged to be a fault, shall be considered in 
 connection with all the attending circum- 
 stances ; and when by inevitable accident, or 
 the fault of one of two colliding vessels, a 
 vessel free from fault is suddenly brought into 
 such circumstances of imminent danger as 
 probably to render the deliberate or proper 
 exercise of the judgment and skill of an ex- 
 perienced seaman impossible, an error of 
 judgment, or other mistake, is not regarded 
 as a legal fault ; 3 Blatch. 92 ; 12 How. 461 ; 
 14 Wall. 199; 19 id. 54. 
 
 The proper and continual exhibition of the 
 bright and colored lights which these rules 
 and regulations prescribe, and their careful 
 observance by the officer of the deck and the 
 lookout of every vessel, constitute the very 
 foundation of the system of navi^tion esta- 
 blished by such rules and regulations. The 
 exhibition of such lights, and the strict com- 
 pliance with the rules in respect to stationinj 
 
NAVIGATION, RULES OF 275 
 
 NE EXEAT EEPUBLICA 
 
 and keeping a competent and careful person 
 in the proper place and exclusively devoted 
 to the discharge of the duties of a lookout, 
 are of the utmost importance. 
 
 The stringent requirements of our maritime 
 courts in respect to lookouts may be learned 
 by consulting the following autliorities : 10 
 How. 585; 12 id. 443; 18 id. 108, 223; 21 
 id. 548, 670;. 23 id. 448, 3 Blatch. 92; 
 Desty, Adm. § 367. 
 
 The neglect to carry or display the lights 
 prescribed by these rules and regulations will 
 always be held, prima facie, a fault, in a col- 
 lisoncase; 5 How. 441, 465; 21 id. 548, 
 556; 3,W. Rob. 191; Swab. 120, 245, 253, 
 519; 1 Lush. 382; 2 Wall. 538. And, upon 
 the same principles, the neglect, in a fog, to 
 use the prescribed fog-signals will also be con- 
 sidered, primat facie, a fault; Desty, Adm. § 
 360 
 
 It will be observed that the duty of slacken- 
 ing speed, in all cases when risk of collision 
 is involved, is absolutely and imperatively im- 
 posed upon every steam- vessel, by these regu- 
 lations, and that they require that every steam- 
 vessel shall stop and reverse her engine when 
 necessary to avoid a collision. 
 
 The duty of slackening speed in order to 
 avoid a collision had been frequently declared 
 by the maritime courts before the adoption of 
 these regulations ; 3 Hasg, Adm. 414 ; 3 
 Blatch. 92 ; Swab. 138 ; 2"W. Rob. 1 ; 3 id. 
 95,270,377; 10 How. 557 ; 12ti. 443; 18 
 id. 108 ; but there was no inflexible rule re- 
 quiring a steamer to slacken speed in all cases 
 when there was risk of collision ; and the ne- 
 glect to do it was held to be a fault only in 
 those cases where its necessity was shown by 
 the proofs. This left the question open to be 
 determined by the courts in each particular 
 case, and perhaps upon vague and unreliable 
 estimates of time and distance and bearings, 
 or upon conflicting and unsatisfactory testi- 
 mony ; but the legislature, in view of the great 
 power and speed of the steamers now in gen- 
 eral use, and the very disastrous consequences 
 of a collision of such vessels when running at 
 their ordinary speed, has wisely made the duty 
 imperative; 5 Blatch. 256; 10 How. 586; 
 . 91 U. S. 200. 
 
 Some of the rules of navigation which these 
 rules and regulations prescribe are quite differ- 
 ent from those applied to similar cases by the 
 general maritime law. They will be most ap- 
 parent upon an examination of the new rules 
 for the crossing of two steam- vessels, or of 
 two sailing-vessels, in connection with the 
 rules formerly applied to similar cases. And 
 until the construction of the new rules has 
 been settled by judicial decisions, it is quite 
 likely that the changes they have introduced 
 will increase, rather than diminish the number 
 of^ collisions. But the construction of these 
 rules will soon be determined ; and, as they 
 are now applicable to the vessels of most com- 
 mercial countries, the new system is likely, 
 ere long, to become nearly universal ; and for 
 
 that reason, if for no other, its adoption 
 will doubtless reduce the number of colli- 
 sions. 
 
 NAVY. The whole shipping, taken col- 
 lectively, belonging to the government of an 
 independent nation, and appropriated for the 
 purposes of naval warfare. It does not in- 
 clude ships belonging to private individuals 
 nor (in the United States, at least) revenue 
 vessels or transports in the service of the war 
 department. • 
 
 Under the constitution, congress has power 
 to provide and maintain a navy. This power 
 authorizes the government to buy and build 
 vessels of war, to establish a naval academy, 
 and to provide for the punishment of deser- 
 tion and other crimes, and to make all need- 
 ful rules for the government of the navy. 
 See 3 Wheat. 337 ; 20 How. 65 ; 3 Wheat. 
 370. 
 
 NB ADMITTAS (Lat.). The name of 
 a writ now piactically obsolete, so called from 
 the first words of the Latin form, by which 
 the bishop is forbidden to admit to a benefice 
 the other party's clerk during the pendency 
 of a quare impedit. Fitzh. N. B. 37 ; Reg. 
 Orig. 31 ; 3 Bla. Com. 248 ; 1 Burn, Eccl. 
 Law, 31. 
 
 NB BAILA PAS (he did not deliver). 
 In Pleading. A plea in detinue, by which 
 the defendant denies the delivery to him of 
 the thing sued for. 
 
 NB DISTTTRBA PAS. In Pleading. 
 
 The general issue in quare impedit. Hob. 
 162. See Rast. Entr. 517; Winch, Entr. 
 703. 
 
 NB DONA PAS, NON DBDIT. In 
 Pleading. The general issue in formedon. 
 It is in the following formula: "And the 
 said C B, by J K, his attorney, comes and 
 defends the right, when, etc., and says that 
 the said E F did not give the said manor, 
 with the appurtenances, or any 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 Wentw. PI. 182. 
 
 NE EXEAT RBPUBLICA, NB EX- 
 EAT REGNO (Lat.). In Practice. The 
 name of a writ originally employed in Eng- 
 land as a high prerogative process, for politi- 
 cal purposes ; 50 N. H. 353 ; but now applied 
 in civil matters only, issued by a court of 
 chancery, directed to the sheriff", reciting that 
 the defendant in the case is indebted to the 
 complainant, and that he designs going 
 quickly into parts without the state, to the 
 damage of the complainant, and then com- 
 manding him to cause the defendnat to give 
 bail in a certain sum that he will not leave the 
 state without leave of the court, and for want 
 of such bail that he, the sheriff", do commit the' 
 defendant to prison. 
 
NE EXEAT REPUBLICA 
 
 276 
 
 NEAT CATTLE 
 
 This writ is issued 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, 32 ; 1 Clark, 551 ; 
 Beames, Ne Exeat; 13 Viner, Abr. 537 ; 1 
 Suppl. to Ves. Jr. 33, 352, 467 ; 4 Ves Ch. 
 577 ; 5 id. 91 ; Bacon, Abr. Prerogative (C) ; 
 8 Comyns, Dig. 232 ; 1 Bla. Com. 138 ; 
 Bfake, Ch. Pr. Index ; Madd. Ch. Pr. In- 
 dex; ] Smith, Ch. Pr. 576 ; 19V.&B.312; 
 6 Johns. Ch. 138 ; 27 Ohio, 666 ; 46 Vt. 708. 
 
 The writ may be issued against foreigners 
 Subject to the jurisdiction of the court, citi- 
 zens of the same state, or of another state, 
 ■frhen 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. 75, 412; 7 id. 192; 1 Hopk. 
 Ch. 499. On the same principle which has 
 been adopted in the courts of law that a de- 
 fendant 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. 594. 
 
 This writ can be issued only for equitable 
 demands ; 4 Des. Eq. 108 ; 1 Johns. Ch. 2 ; 
 6 id. 138 : 1 Hopk. Ch. 499 ; and not where 
 the plaintiff by process of law may hold the 
 defendanttolJail: 3 Bro. C. C. 218 ; 8 Ves. 
 Jr. 593 ; 36 Ga. 573 ; 18 N. J. Eq. 249 ; 28 
 Wise. 245 ; and where there is an adequate 
 remedy at law, the writ will be dissolved ; 30 
 Ga.965. It may be allowed in a case to prevent 
 the failure of justice; 2 Johns. Ch. 191. 
 When the demand is strictly legal, it cannot 
 be issued, because the court has no jurisdic- 
 tion. When the court has concurrent juris- 
 diction 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. 1 70. In all cases when a writ of ne exeat 
 is claimed, the plaintiff's equity must appear 
 on the face of the bill ; 3 Johns. Ch. 414. 
 
 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. 501. 
 
 This writ has been expressly abolished in very 
 many of the states. Tet its place has been filled 
 by other methods of procedure, similar in effect. 
 The constitutions of Vermont, Pennsylvania, 
 Kentucky, Mississippi, and Louisiana prohibit 
 ftny restraint upon emigration. In Arkansas the 
 Writ Is abolished, and in the new code of New 
 York a system of arrest and bail is substituted. 
 In Ohio and California it is abolished ; 27 Ohio, 
 654 ; 49 Cal. 465. In those Jurisdictions where 
 ne exeat is still recognized, the circumstances 
 under which the writ will be granted and the re- 
 quisites to its issuance, are largely regulated by 
 ■ statute ; but certain general principles govern in 
 nearly eveiy case. These will be found set forth 
 in Rhodes vs. Cousins, «6 Kand. 191. See 14 
 Amer. Dec. 560, n. 
 
 NE INJUSTB VEXES (Lat.). in 
 Old English 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. 
 
 It was a prohibition to the lord, not «n- 
 justly to distrain or vex his tenant. Fitzh. 
 N. B. Having been long obsolete, it was 
 abolished in 1833. 
 
 NE LUMI N I B TTS OPPICIATTJR 
 (Lat.). In 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. 18, 
 17 ; Servitude. 
 
 NE RECIi*IATUR (Lat.). That if 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 op. 
 ponent. 1 Sell. Pr. 8. 
 
 NE RELESSA PAS (Law Fr.). The 
 name of a replication to a plea of release, hy 
 which the plaintiff insists he did nut release. 
 2 Bulstr. 55. 
 
 NE UNQtTES ACCOTTPLB (La* Fr.), 
 In Pleading. A plea by which the party 
 denies that he ever was lawfully married to 
 the person to whom it refew. See the form, 
 2 Wils. 118; 10 Wentw. PI. 158; 2 H. 
 Blackst. 145; 3 Chftty, PI. 599. 
 
 NE UNQITES EXECUTOR. In 
 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 Chitty, PL 484 ; 1 
 Saund. 274, n. 8 ; Comyns; Dig. Pleader (2 
 D 2) ; 2 Chitty, PL 498 
 
 NE tTNQTTES SEISIE QXTE DOWER. 
 In Pleading. A plea by which a defendant 
 denies the right of a widow who sues for and 
 demands her dower in lands, etc., late of her 
 husband, because the husband was not on the 
 day of her marriage with him, or at any time 
 afterwards, seised of such estate, so that 
 she could be endowed of the same. See 2 
 Saund. 829; 10 Wentw. PL 169; 3 Chitty, 
 PL 598, and the authorities there cited. 
 
 NE TJNQUES SON RECEIVER. In 
 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 Viner, Abr. 183. 
 
 NE VARIETUR (Lat. that it be Hot 
 changed). A form sometimes written by 
 notaries public upon bills or notes, for the 
 purpose of identifying them. This does not 
 destroy their negotiability. 8 Wheat. 388. 
 
 NEAR. Near is a relative term, and its 
 precise meaning depends upon circumstance!! 
 44 Mo. 197; 6 Allen, 221. 
 
 NEAT CATTLE. Oxen or heifert- 
 Whart. Diet. "Beeves" may include neat 
 
NEAT, NET 
 
 277 
 
 NEBRASKA 
 
 stock, but all neat stock are not beeves ; 36 
 Tex. 324; 32 id. 479. 
 
 ITEAT, NET. The exact weight of an 
 article, without the bag, box, keg, or other 
 thing in which it may be enveloped. 
 
 NEATNESS. In Pleading. The state- 
 ment in apt and appropriate words of all the 
 necessary facts, and no more. Lawes, Plead. 
 62. 
 
 NEBRASKA. One of the states of the 
 American Union. 
 
 This state lies between latitude 40° and 43° 
 north, and longitude 95° 35' and 104° west from 
 Greenwich — near the centre of the Continent. It 
 contains 76,000 square miles ; and its population 
 in 1880 was 450,000, having increased about 
 330,000 in the last ten years. Its territory 
 forms a part of the province of Louisiana as ceded 
 by France, and was afterwards included in the 
 distriet and the territory of Louisiana as organ- 
 ized in 1804 and 1805, respectively, and in the 
 territory of Missouri, to which the name of the 
 last named territory was changed in 1812. The 
 territory of Nebraska, extending beyond the 
 limits of the present state westward to the sum- 
 mit of the Rocky Mountains, and northward to 
 the British possessions, was organized by the act 
 of May 30, 1854. An enabling act for the format 
 tion of a state government was passed April 19, 
 18^4 ; a state constitution was adopted June 21, 
 J866 ; on the 9th of February, 1867, an act was 
 passed for the admission of the state into the 
 Union, on condition that civil rights and the 
 elective franchise should be secured to all races, 
 excepting Indians not taxed ; and on the first of 
 March, 1867, a proclamation by the president 
 announced the acceptance of this condition, 
 whereupon by the terms of the act the admission 
 of the state became complete. 
 
 Constitution. — The present constitution was 
 adopted October 12, 1875. The Bill of Mights pro- 
 hibits slavery ; secures life, liberty, and property, 
 except against due process of law ; declares re- 
 ligious freedom in the manner of worshipping 
 Almighty God ; prohibits religious tests as quali- 
 fication for office ; protects all denominations in 
 the enjoyment of their mode of worship ; makes 
 the truth combined with justifiable motives, a 
 defence in libel cases, civil or criminal ; preserves 
 trial by jury ; forbids general warrants ; provides 
 that the habeas corpus shall only be suspended in 
 rebellion or invasion, and then according to law ; 
 makes all offences bailable except treason and 
 murder ; requires indictment by the grand jury 
 tn all cases of felony, but provides that the legis- 
 lature may change or abolish the grand jury sys- 
 tem ; forbids imprisonment for debt except in 
 case of fraud ; makes the writ of error a writ of 
 right in felony, and a supersedeas in capital cases, 
 and prohibits distinction between citizens and 
 aliens in respect to property rights. 
 
 Every male person of lawful age, vrho is a citi- 
 zen of the United States, or has declared his in- 
 tention to become a citizen thirty days prior to 
 an election, and who has resided in the state six 
 months, is an elector, unless non compos mentis, 
 A soldier in the regular army, or under convic- 
 tion of treason or felony. A constitutional 
 amendment conferring the elective franchise on 
 women was submitted to the people by the legis- 
 lature of 1881. 
 
 Amendments to the constitution may be made 
 by the concurrence of three-fifths of the members 
 chosen to each house of the legislature with a 
 majority of the voters at a general election. 
 
 The Lesislatube. — The legislative power is 
 vested in a senate and a house of representa- 
 tives. The senate consists of thirty-three mem- 
 bers, and the house of one hundred, apportioned 
 according to population every five years. The 
 regular sessions are biennial, and begin on the 
 first Tuesday in January. The pay of members 
 is limited to a session of forty days. A majority 
 of the members elected to each house is necessary 
 for the passage of a bill. Money bills originate 
 in the house of representatives. No bill can 
 contain more than one subject, which must be ex- 
 pressed in its title. Amendments tg laws must 
 be express. The power of impeachment rests in 
 the two houses, in joint convention. A ijiajority 
 of the elected members is requisite. Impeach- 
 ments are tried by the supreme court, sitting for 
 that purpose, except when a judge of that court 
 is impeached, in which case the .court of im- 
 peachment is composed of all the district judges, 
 sitting together. The concurrence of two-thirds 
 of the members of the court is necessary to con- 
 viction. Judgment extends only to removal from 
 office and disqualification ; and the trial is no bar 
 to a prosecution. Acts of the legislature take ef- 
 fect three months after the end of the session at 
 which passed, unless in case of an emergency de»- 
 clared by the vote of two-thirds of the elected 
 members of each house. 
 
 The Executive. — The supreme executive 
 power is vested in a Governor, who, with the 
 Lieutenant-Governor, Secretary of State, Audi- 
 tor of Public Accounts, Treasurer, Superinten- 
 dent of Public In^ruction, Attorney General, 
 and Commissioner of Public Lands and Build- 
 ings, is elected biennially. The governor must 
 be thirty years of age, and must have been for 
 two years a citizen of the United States and of 
 the state. His salary is $2500 a year. The gov- 
 ernor has the pardoning power, except in trea- 
 son, when it rests with the legislature, and in 
 cases of impeachment ; and has a qualified veto, 
 which may be applied to single items of appro- 
 priation. The treasurer is ineligible to the same 
 office for two years after two consecutive terms. 
 The secretary of state is the keeper of the seal. 
 
 The Jddiciakt. — The courts of record are the 
 Supreme Court, District Courts, and County 
 Courts. Judges are elected. The Supreme Cotart 
 is composed of three judges, elected, alternately, 
 for six years, the senior judge presiding. The 
 supreme court has original jurisdiction in civil 
 cases in which the state is a party, in revenue 
 cases, and in matters of mandamus, quo war- 
 ranto, and habeas corpus. Terms are held twice 
 a year at the capital. The state is divided into 
 six judicial districts, in each of which a judge is 
 elected for four years, who holds the district 
 court in the several counties in his district suc- 
 cessively. This is a court of first resort in civil 
 cases involving over $100 ; and is the criminal 
 trial court in all but petty cases. Inferior to the 
 district courts are the county courts, with juris- 
 diction of probate business, and of minor civil 
 and criminal matters; and police courts, and 
 courts of justices of the peace, with the ordinary 
 functions of such tribunals. Appeals lie in all 
 cases from these lower courts to the district 
 courts. 
 
 Jurisprudence. — The common law of England 
 is the basis of the law of this state. The 
 statutes are contained in the general statutes, one 
 volume, being the acts in force September 1, 
 1873, and in biennial volumes of session laws, 
 beginning with 1875. Practice is under a code 
 of procedure, based on that of Ohio. The dis- 
 tinction between legal and equitable proceedings 
 
NECESSARIES 
 
 278 
 
 NECK-VERSE 
 
 is abolished. There is one form of civil action. 
 The pleadings are the petition, the answer, and 
 the reply. There is a very liberal rule as to 
 amendments. Actions are in the name of " the 
 real party in interest." Companies and firms 
 sue in the partnership name. Married women 
 have full civil and property rights. Exemptions 
 are broad; and there is a liberal stay law. 
 Prosecutions are instituted, and process runs, in 
 the name of the state of Nebraska. 
 
 NECESSARIES. Such things as are 
 proper and necessary for the sustenance of 
 man. 
 
 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; 1 
 Campb. 120; 3 id. 326; 7 C. & P. 52; 1 
 Hodg. 31; 8 Term, 578; 1 Leigh, N- P- 
 135 ; some degree of education ; 4 M. & W. 
 727 ; 6 id. 48 ; 16 Vt. 683 ; lodging and house- 
 rent; 2Bulstr. 69; 1 B. & P. 340; see 12 
 Mete. 559 ; 13 id. 306 ; 1 M. & W. 67 ; 5 Q. 
 B. 606 ; horses, saddles, bridles, liquors, pis- 
 tols, powder, whips, and fiddles, have been 
 held not to be necessaries; 1 Bibb, 619; 
 1 M'Cord, 572 ; 2 N. &M'C. 524 ; 2Humphr. 
 27 ; 2 Stra. 1101 ; 1 M. & G. 550. And see 
 7 C. & P. 52 ; 4 id. 104 ; Holt, 77 ; 11 N. H. 
 51 ; 8 Exch. 680. 
 
 The rule for determining what are neces- 
 saries is that whether articles of a ceitaia kind 
 or certain subjects of expenditure are or are 
 not such necessaries as an infant may con- 
 tract for, is a matter of law, and for instruc- 
 tion by the court; but the question whether 
 any particular things come under these classes, 
 and the question, also, as to quantity, are 
 generally matters for the jury to determine ; 
 
 1 Pars. Contr. 241 ; 10 Vt. 225; 12 Mete. 
 559 ; 11 N. H. 51 ; 1 Bibb, 519 ; 2 Humphr. 
 27 ; 3 Day, 37 ; 1 M. & G. 550 ; 6 M. & W. 
 42 ; 6 C. & P. 690. 
 
 Infants, when not maintained by parent or 
 guardian, may contract for necessaries ; 4 M. 
 & W. 727 ; 16 Mass. 28 ; 10 Mo. 451 ; 9 
 Johns. 141. But when living with and sup- 
 ported by their parents theiy are not liable for 
 necessaries; 4 Wend. 403; 61 111. 177; 
 Ewell, Lead. Cas. 55. Nor can an infant 
 pledge his father's credit, as a wife can her 
 husband's, for abandonment of duty ; 17 Vt. 
 348 ; 6 M. & W. 482 ; Schoul. Dom. Rel. 
 828. Infants are not liable at law for bor- 
 rowed money, though expended for neces- 
 saries ; 10 Mod. 67; 1 Bibb, 519; 7 W. & 
 S. 83, 88 ; 10 Vt. 226. See 1 P. Wms. 658 ; 7 
 N. H. 368 ; 2 Hill, So. C. 400 ; 32 N. H. 
 345. Otherwise in equity ; 1 P. Wms. 558 ; 
 
 2 Duvall, 149 ; 7 W. & S. 88. But they are 
 liable for money advanced at their request to 
 a third party to pay for necessaries ; 1 Denio, 
 460 ; 10 Cush. 436 ; 7 N. H. 368 ; 2 Sandf. 
 806 ; 2 Hill, S. C. 400. Necessaries for the 
 infant's wife and children are necessaries for 
 
 himself; Stra. 168 ; Comyns, Dig. Enfant 
 (B 5) ; 2 Stark. Ev. 726 ; 3 Day, 37 ; 1 Bibb 
 519; 2 N. & M'C. 523; 9 Johns. 144; 16 
 Mass. 31; 14 B. Monr. 232; Bacon, Abr 
 Infancy (I). See 18 M. & W. 252 ; SHarr 
 Del. 428 ; 4 Vt. 152. 
 
 When a wife is living with her husband, it 
 is presumed that she has his assent to pledge 
 his credit for necessaries. But this presump. 
 tion may be rebutted by showing a prohibi- 
 tion on his part or that he has already snp. 
 plied her with necessaries. The fact of co- 
 habitation is not conclusive of the husband's 
 assent; 2 Ld. Baym. 1006; 34 N. H. 420; 
 39 N. Y. 351 ; Schoul. Dom. Eel. 80 ; 29 
 Am. L. Reg. 324. But if the husband alto- 
 gether neglects to supply the wife, she may 
 pledge his credit notwithstanding he has for- 
 bidden tradesmen to trust her; the law here 
 raising a presumption of agency to enforce the 
 marital obligation and protect the wife ; 40 
 Barb. 390; 41 Barb. 658 ; 15 Conn. 535; 
 Schoul. Dom. Rel. 77. The husband is also 
 liable when away from his wife without her 
 fault or by his own misconduct ; 24 Ala. 337; 
 8 Iowa, 51 ; 8 Gray, 172 ; 2 Kent, 146. But 
 otherwise where it is the wife's fault; 10 
 111. 569; 29 N. H. 63 ; 40 Vt. 68 ; 19 Wise. 
 268. But if the wife elopes, though it be not 
 with an adulterer, he is not chargeable even 
 for necessaries; the very fact of the elopement 
 and separation is sufficient to put persons on 
 inquiry, and whoever gives credit to the wife 
 afterwards gives it at his peril ; 1 Stra. 647 ; 
 11 Johns. 281; 12 id. 293; 3 Pick. 289; 2 
 Halst. 146 ; 2 Kent, 123 ; 2 Stark. Ev. 696; 
 Bacon, Abr. Baron, and Feme (H) ; 1 Hare 
 & W. Sel. Dec. 104, 106 ; 6 C. B. n. s. 519; 
 19 Wise. 268. Insane persons are liable for 
 necessaries; 5 B. & C. 170; 10 Allen, 59; 
 56 Me. 308. See generally Schouler, Dom. 
 Bel. ; Ewell, Lead. Cas. on Coverture, etc.; 
 29 Am. L. Reg. 324 ; 32 Mich. 204. 
 
 NECESSITY. That which makes the 
 contrary of a thing impossible. 
 
 Necessity is of three sorts : of conservation 
 of life; see Duress; of obedience, as the 
 obligation of civil subjection, and, in some 
 cases, the coercion of a wife by her husband ; 
 and necessity of the act of God, or of a stran- 
 ger; Jacob; Moz. & W. 
 
 Whatever is done through necessity is done 
 without any intention ; and as the act is done 
 without will (q. w.) and is compulsory, the 
 agent is not legally responsible ; Bacon, Max. 
 Reg. 5. Hence the maxim. Necessity has no 
 law ; indeed, necessity is itself a law which 
 cannot be avoided nor infringed. Clef to 
 Lois Rom.; Dig. 10. 3. 10. 1 ; Comyns, Dig. 
 Pleader (8 M 20, 8 M 30). As to the circnm- 
 stances which constitute necessity, see 1 Kuss. 
 Cr. 16, 20; 2 Stark. Ev. 713; 3llnd. 189; 
 4 Cush. 243 ; 65 Ga. 126. 
 
 NECK-VERSE. The Latin sentence 
 Miserere mei, Deus, Ps. li. 1, because the 
 reading of it was made a test for those who 
 claimed benefit of clergy. 
 
NEGATIVE 
 
 279 
 
 NEGLIGENCE 
 
 If a monk had been taken 
 
 For stealing of bacon, 
 For burglary, murder, or rape ; 
 
 If he could but rehearse 
 
 (Well prompt) his neok-vene, 
 He never could fail to escape. 
 
 Brit. Apollo, 1710 ; Whart. Diet. 
 
 NEGATIVE. Negative propositions are 
 usually much more difficult of proof than 
 affirmative, and in cases where they are in- 
 volved, it is often a nice question upon which 
 side lies the burden of proof. The general 
 rule has been thus stated : Whoever asserts a 
 right dependent for its existence upon a nega- 
 tive, must establish the truth of the negative, 
 except where the matter is peculiarly within 
 the knowledge of the adverse party. Other- 
 wise rights of which a negative forms an es- 
 sential element , may be enforced without 
 proof; 72 Ind. 113 ; s. c. 37 Am. Rep. 141. 
 Thus in actions for malicious prosecution, the 
 plaintiff must prove that there was no proba- 
 ble cause ; 67lnd. 375; 2 Greenl. Ev. § 454. 
 The rule applies whenever the claim is founded 
 in a breach of duty in not repairing high- 
 ways, and in cases of mutual negligence ; 78 
 N. Y. 480; Shearm. & Bed. Neg. 312. So 
 one must prove the allegation that a negotia^ 
 ble promissory note was not taken in payment 
 of a debt ; . 68 Ind. 254. So the onus is on a 
 plaintiff who' assigns as a breach by tenant 
 that he did not repair ; 9 C. & P. 734 ; 6 H. 
 L. C. 672 ; 12 Mod. §26. In all actions for 
 breach of warranty of the soundness of a per- 
 sonal chattel, the plaintiff must prove the 
 negative. "It may be stated as a test admit- 
 ting of universal application, that whether 
 the proposition be affirmative or negative, the 
 party against whom judgment would be given, 
 as to a particular issue, supposing no proof 
 to be offered on either side, has on him, 
 whether he be plaintiff or defendant, the bur- 
 den of proof which he must satisfactorily sus- 
 tain ;" 1 Whart. Ev. § 357 ; see 14 M. & W. 
 95; 5 Cra. C. C. 298; 119 Mass. 469; 47 
 Penn.^476; 62 N. Y. 448 ; 33 Miss. 292 ; 97 
 Mass. 97; 107trf. 334; 39 Wise. 520; 69111. 
 423 ; 52 Mo. 390 ; article in 25 Alb. L. Jour. 
 124 ; BuKDBN OF Proof. 
 
 NEGATIVE AVERMENT. In Plead- 
 ing, An averment in some of the pleadings 
 in a case in which a negative is asserted. . 
 
 NEGATIVE CONDITION. One where 
 the thing which is the subject of it must not 
 happen. 1 Bouvier, Inst. n. 761. See Posi- 
 tive Condition. 
 
 NEGATIVE PREGNANT. In Plead- 
 ing. Such a form of negative expression as 
 may imply or carry within it an affirmative. 
 
 Thus, where a defendant pleaded a license 
 from the plaintiffs daughter, and the plaintiff 
 rejoined that he did not enter by her license, 
 the rejoinder was objected to successfully as 
 a negative pregnant ; Cro. Jac. 87. The 
 fault here lies in the ambiguity. of the rejoin- 
 der, since it does not appear whether the 
 plaintiff denies that the license was given or 
 
 that the defendant entered by the license. 
 Steph. PI. 381. 
 
 This ambiguity constitutes the fault ; Hob. 
 295 ; which, however, does not appear to be 
 of much account in modern pleading ; 1 Lev. 
 88 ; Comyns, Dig. Pleader (R 6) ; Gould, 
 PI. c. 6, § 36. 
 
 NEGATIVE STATUTE. One which is 
 enacted in negative terms, and which so con- 
 trols the common law that it has no force in 
 opposition to the statute. Bacon, Abr. Sta- 
 tutes (G) ; Brook, Abr. Parliament, pi. 72. 
 
 NEGLIGENCE. The omission to do 
 something which a reasonable man, guided 
 upon those considerations which ordinarily 
 regulate the conduct of human affairs, would 
 do, or the doing something which ^prudent 
 and reasonable man would not do. Per Al- 
 derson, B., in Blyth vs. Birmingham Water- 
 works Co., 11 Ex. 784. 
 
 The failure to observe, for the protection of 
 the interests of another person, that degree of 
 care, precaution, and vigilance which the cir- 
 cumstances justly demand, whereby such other 
 person suffers injury. Cooley, Torts, 630. 
 
 The absence of care according to circum- 
 stances. See 78 Penn. 219; 46 Tex. 356; 
 9 W. Va. 252. 
 
 The failure to do what a reasonable and pru- 
 dent person would ordinarily have done under 
 the circumstances of the situation, or the doing 
 what such a person under the existing circum- 
 stances would not ha^e done. 95 U. S. 441, 
 per Swayne, J. 
 
 Dr. Wharton (Negligence, § 3) defines the 
 term as follows : ' ' Negligence, in its civil rela- 
 tion, is such an inadvertent imperfection, by 
 a responsible human agent, in the discharge of 
 a legal duty, as immediately produces, in an 
 ordinary and natural sequence, a damage to 
 another." It is conceded by all the authorities 
 that the standard by which to determine 
 whether a person has been guilty of negli- 
 gence is the conduct of the prudent or careful 
 or diligent man. Bigel. Torts, 261. 
 
 The opposite of care and prudence, the 
 omission to use the means reasonably neces- 
 sary to avoid injury to others. 39 111. 353. 
 
 When a contract creates a duty, the neg- 
 lect to perform that duty, as well as the negli- 
 gent performance of it, is a ground of action 
 for tort. Hence it is at the election of the 
 party injured to sue either on the contract or 
 on the tort; Whart. Negl. § 435; 4 Gray, 
 485 ; 24 Conn. 392. Some cases have gone 
 to the extent of maintaining an action in tort 
 even where no attempt has been made toper- 
 form the contract ; 13 Ired. 39 ; 11 CI. & F. 1. 
 
 It is said not to be essential to constitute 
 negligence that the damage caused might rea- 
 sonably have been expected from the negli-^ 
 gent act; Whart. Negl. §16. Thus Gray, C. 
 J., says in 107 Mass. 494, "A man whonegli- 
 gently sets fire on his own land and keeps it 
 negligently, is liable to an action at common 
 law for any injury done by the spreading or 
 communication of the fire directly from his 
 
NEGLIGENCE 
 
 280 
 
 NEGLIGENCE 
 
 own land to the property of another, whether 
 through the air or along the ground, and 
 whether he might or not have reasonably an- 
 ticipated the particular manner in which it 
 was communicated." And in L. K. 6 C. P. 
 14, where the defendants, a railway company, 
 left a pile of rubbish in hot weather by the 
 side of their track, and the pile was ignited by 
 sparks from the defendants' engine, and the fire 
 crossed the hedge and field and burned the 
 plaintifif 's cottage, two hundred yards away, 
 Channell, B., said: When there is no direct 
 evidence of negligence, the question what a 
 reasonable man might foresee is of importance, 
 in considering the. question whether there is 
 evidence for thejury of negligence or not, . . . 
 but when it has been once determined that 
 there h^ been evidence of negligence, the 
 person guilty of it is equally liable for its conse- 
 quences, whether he could have foreseen 
 them or not. 
 
 Where a person unlawfully injures another, 
 he is liable in damages, without regard to the 
 intention with which the act was done ; 32 N. 
 J. 554 ; 44 N. H. 211; and good faith does not 
 excuse negligence ; 32 Vt. 652 ; 3 Sneed, 677. 
 The damage caused must arise from inad- 
 vertence. If it be intentional, a suit for neg- 
 ligence will not lie ; the remedy is in trespass 
 and not case. 
 
 Proof of negligence. The first requi- 
 site for the plaintiff is to show the existence 
 of the duty which he alleges has not been per- 
 formed, and having shown this he must show 
 a failure to observe this duty ; that is, he must 
 establish negligence on the defendant's part. 
 This is an affirmative fact, the presumption 
 always being, until the contrary appears, that 
 every man will perform his duty ; Cooley, 
 Torts, 659, 661. In many cases evidence of 
 the injury done makes out a prima facie case 
 of negligence on the defendant's part ; for in- 
 stance, when a bailee returns in an injured 
 condition an article loaned to him, or when a 
 passenger on a railway- train is injured with- 
 out fault on his part. 
 
 Law or fact. It is generally said that 
 the question of negligence is a mixed question 
 of law and fact, to be decided by the court 
 when the facts are undisputed or conclusively 
 proved, but not to be withdrawn from the 
 jury when the facts are disputed, and the evi- 
 dence is conflicting ; Whart. Negl. § 420. In 
 the great aiajority of cases litigated, the 
 question is left to the jury to determine 
 whether the defendant's conduct was reasona- 
 ble under the circumstances. When a well- 
 recognized legal duty rested upon the plain- 
 tiff, it is usual for the court to define this duty 
 to the jury, and leaVe to it the question as to 
 whether the plaintiff fulfilled this duty. More 
 recently the courts have drawn a distinction 
 between what is evidence of negligence for 
 the jury, and what is negligence per se, and 
 therefore a question of law for the court, and 
 the tendency has perhaps been rather to in- 
 crease the number of cases in which the ques- 
 tion of negligence is passed upon by the 
 
 court. In Pennsylvania, when the standard 
 of duty is defined by law, and is the same 
 under all circumstances, and when there has 
 been such an obvious disregard of duty 
 and safety as amounts to misconduct the 
 courts have withdrawn the case from the con- 
 sideration of the jury. It is said to be clear 
 by most of the authorities, that when the 
 facts are found, and it is perfectly manifest 
 that a prudent man would or would not do as 
 the defendant has done, the court may rule 
 accordingly, or rather, may direct the jury, to 
 find accordingly. The same is also trae when 
 the law has prescribed the nature of the duty 
 and also when there exists a well-known prac- 
 tice in the community, of a proper character. 
 In other cases, the inference concerning negli- 
 gence is left to thejury; Bigel. Torts, 263. 
 See Bigel. L. C. Torts, 589-596. 
 
 ' ' When the circumstances of a case are such 
 that the standard of duty is fixed, when the 
 measure of duty is defined by law and is the 
 same under all circumstances, its omission ij 
 negligence and may be so declared by the 
 court. But it is said that when the negligence 
 is clearly defined and palpable, such that no 
 verdict of a jury could make it otherwise, or 
 when there is no controversy as to the facts, 
 and from these it clearly appears what course 
 a person of ordinary prudence would pursue 
 under the circumstances, the question of ne- 
 
 fligence is purely one of law." 2 Thomp. 
 fegl. 1236. 
 
 " As a general rule, a question whether a 
 party has been guilty of negligence or not, is 
 one of fact, not of law. Where, however, 
 the plaintiff brings action for a negligent in- 
 jury, and the action of the two parties must 
 have concurred to produce it, it devolves upon 
 him to show that he was not himself guilty of 
 negligence ; and if he gives no evidence to 
 establish that fact, the court may properly in- 
 struct the jury that they should return 4 ver- 
 dict for defendant. Where, however, the 
 question of negligence depends upon a dis- 
 puted state of facts, or when the facts, thou^ 
 not disputed, are such that different minds 
 might honestly draw different conclusions 
 from them, the court cannot give such posi- 
 tive instructions, but must leave the jury to 
 draw their own conclusions upon the faets, 
 and upon the question of negligence depend- 
 ing upon them. To warrant the Gonrt in any 
 case in instructing the jury that the plaintiff 
 was guilty of negligenoe, the case must be » 
 very clear one against him, and which would 
 warrant no other inference." Per Cooley, 
 C. J., in 17 Mich. 99. 
 
 It is true, in many cases, that when nie 
 facts are undisputed, the effect of them is for 
 the judgment of the court. That is true in 
 that class of cases when the existence of such 
 facts come in question, rather than when de- 
 ductions or inferences are to be made from the 
 facts (and see 25 Kan. 391). In some cases, 
 too, the necessary inference from the proot 
 is so certain that it may be ruled as a question 
 of law. Certain facts we may suppose to be 
 
NEGLIGENCE 
 
 281 
 
 NEGLIGENCE 
 
 clearly established from which one sensible, 
 impartial man would infer that proper care 
 had not been used; another man, equally 
 sensible, equally impartial, would infer that 
 proper care had been used. It is this class 
 of cases and those akin to it that the law com- 
 mits to the decision of a jury. Twelve men 
 of the average of the community, compris- 
 ing men of education and of little education, 
 men of learning and men whose learning 
 consists in what they have themselves seen and 
 heard, the merchant, the mechanic, the far- 
 mer, the laborer ; these sit together, consult, 
 apply their separate experiences of the affairs 
 of life to the facts proven, and draw a unanir 
 mous conclusion. This average judgment 
 thus given, it is the final effort of the law to 
 obtain. Per Hunt, J., in 1 7 Wall. 663. Al- 
 though the facts are undisputed, it is for the 
 jury and not for the judge to determine 
 whether proper care was given or whether 
 they established negligence; 73 Ind. 261. 
 The subject is fully treated in a note by the 
 present writer in 13 Am, L. Reg. N. 8. 
 284. 
 
 Contributory negligence. If the evidence 
 shows that the plaintiff himself was guilty of 
 pegligence eontributing to the injury, there 
 can be no recovery. The distinction, how- 
 ever, must be drawn between conditions and 
 causes, between cau$a causans . and causa 
 sine qua non. The question must always be 
 considered whether the act of the plaintiff 
 iad a natural tendency to expose him directly 
 to the danger which resulted in the injury 
 •complained of. If it had not, the plaintiff's 
 negligence is not considered in law as con- 
 tributing to the injury. Thus, when the de- 
 fendant was driving carelessly along the high- 
 way, and ran into and injured the plaintiff's 
 donkey which was straying improperly on the 
 highway with his fore feet fettered, it was 
 held that the plaintiff's negligence had not 
 contributed to the accident; 10 M. & W. 
 £46. It has also been held that if the plain- 
 tiff could by the exercise of reasonable care, 
 at or just before the happening of the injury 
 to him, have avoided the same, he cannot re- 
 cover; 5 C. B. N. 8. 573. And when it 
 appears that the plaintiff, by the defendant's 
 misconduct became frightened, and in en- 
 deavoring to escape the consequence of the 
 defendant's misconduct, rushed into danger 
 and was injured, the plaintiff's conduct does 
 not contribute to the injury ; 56 N. Y. 585. 
 So, when the defendant might, by proper 
 care, have avoided the consequences of the 
 plaintiff's negligence, the plaintiff may still 
 recover; 85 N. C. 512. 
 
 In some cases it has been held that the 
 plaintiff must show aflSrmatively that he was 
 m the lexereise of due care, when the injury 
 happened ; 83 111. 354 ; 6 Bradw. 242 ; 19 
 Conn. 566 ; 78 N. Y. 480 ; 101 Mass. 455. 
 Probably the proof need not be direct, but 
 may be mferred from the circumstances of the 
 case; 104 Mass. 137; 2 Thomp. Negl. 1178,i 
 n. In other states, contributory negligence 
 
 is a matter of defence, the burden of proving 
 which is on the defendant; 66 Penn. 30 ; 85 
 Penn. 275 ; 22 Minn. 152 ; 65 Mo. 34 ; 35 
 Ohio St. 627 ; 3 Mo. App. 565 ; 50 Cal. 70? 
 11 W. Va. 14 ; 43 Wise. 513 ; 8. c. 28 Am. 
 Rep. 558, where the cases are discussed. 
 But even in these courts, if the plaintiff's 
 own showing disclose contributory negligence, 
 he cannot recover. See, further, 15 Wall. 
 401 ; 41 Wise. 105 ; 44 N. Y. 465 ; 28 Am. 
 Rep. 563, n. ; 20 Alb. L. J. 304, 859. See 
 an article in 15 West. Jur. 529. 
 
 Comparative negligence. In Illinois a 
 rule of comparative negligence has been laid 
 down. It has been expressed thus : If, on 
 comparing the negligence of the plaintiff with 
 that of the defendant, or the negligence of 
 the person injured with that of the person in- 
 flicting the injury, the former is found to have 
 been slight and the latter gross, the plaintiff 
 may recover. See 20 111. 478 (where the 
 rule was first announced by Breese, J.) ; 83 
 id. 405 ; 95 111. 25. In 36 111. 409, it was 
 said, " Therule of this court is that negligence 
 is relative, and that the plaintiff, although 
 guilty of negligence which may have con- 
 tributed to the injury, may hold the defend- 
 ant liable if he has been guilty of a higher 
 degree of negligence, amounting to wilful in- 
 jury. The fact that the plaintiff is guilty of 
 slight negligence does not absolve the de- 
 fendant from the use of care and the use of 
 reasonable efforts to avoid the injury." In 
 a late case it was held that the negligence of 
 the plaintiff must be but slight, and that of 
 the defendant gross in comparison ; and both 
 of these terms, "gross" and "slight," or 
 their equivalents, should be used in every in- 
 struction to a jury on the subject. " Want of 
 ordinary care is not equivalent to gross negli- 
 gence;" 8 Bradw. 133 ; a mere preponder- 
 ance of negligence against the defendant will 
 not make him liable ; 96 HI. 42. 
 
 This doctrine has been adopted to a certain 
 extent in Kansas; 14 San. 37; and perhaps 
 in Georgia. 
 
 Imputed negligence. In cases of actions 
 brought by infants of tender years for dam- 
 ages caused by the defendant's negligence, it 
 has sometimes been held that the negligence 
 of the parent or guardian of the infant in 
 permitting it to become exposed to danger, is 
 to be imputed to the infant so as to bar its 
 right of action. This rule was first laid down 
 in Hartfield vs. Roper, 21 Wend. 615. The 
 doctrine has been much discussed, and this 
 case has been followed, sometimes with modi- 
 fication. See 104 Mass. 53 ; 88 111. 441 ; 28 
 Ind. 287 ; 2 Neb. 319 ; 50 Cal. 602 ; but in 
 other states, especially Pennsylvania (57 
 Penn. 187 ; 81 id. 19), its doctrine has been 
 denied ; 22 Vt. 213 ; 30 Ohio St. 451 ; 53 
 Ala. 70. But see L. R. 1 Ex. 239. See, 
 as to injuries to infants, 31 Am. Rep. 206 ; 
 14 Cent. L. J. 282. 
 
 In England where a passenger ias been 
 injured by concurrent negligence of his own 
 carrier and a third p?rty, the carrier's negU- 
 
NEGLIGENT ESCAPE 
 
 282 
 
 NEGOTIATION 
 
 gence is imputed to the passenger, and bars 
 his recovery against athird party ; 8C. B. 115 
 (but this case has been criticized in Lush. 
 388 ; 1 Sm. L. C. 481) ; see L. K. 9 Ex. 
 176. The contrary rule has been adopted in 
 this country ; 19 N. Y. 341 ; 38 N. X. 260 ; 
 7 Vroom, 225 ; s. c. 13 Am. Kep. 435 ; 46 
 Penn. 151. When the plaintiff is riding in 
 a private vehicle, the driver's negligence is 
 not imputable to him ; 66 N. Y. 11 ; s. c. 
 23 Am. Rep. 1 ; contra, 43 Wise. 513 ; s. c. 
 28 Am. Rep. 558. See notes to the 23 & 28 
 Am. Rep. just cited. 
 
 See Moak's Underbill, Tdrts ; Shearm. & 
 R. Negligence ; Bigel. L. C. Torts ; as to de- 
 grees of negligence, Bailee ; 8 Am. L. Rev. 
 653. 
 
 NEGLIGENT ESCAPE. The omission 
 on the part of a gaoler to take such care of a 
 prisoner as he is Dound to take, when in con- 
 sequence thereof the prisoner departs from his 
 confinement without the knowledge or con- 
 sent of the gaoler, and eludes pursuit. 
 
 For a negligent escape, the sheriff or keeper 
 of the prison is liable to punishment, in a 
 criminal case ; and in a civd ca^e he is liable 
 to an action for damages at the suit of the 
 plaintiff. In both cases the prisoner may be 
 retaken ; 3 Bla. Com. 415. See Escape. 
 
 NEGOTIABLE. In MercantUe Law. 
 A term applied to a contract the right of 
 action on which is capable of being trans- 
 ferred bjr indorsement (of which ddivery is 
 an essential part), in case the undertaking is 
 to A or his order, A or his agent, and the 
 like, or by delivery alone, in case the under- 
 taking is to A or bearer, — the assignee in 
 either case having a right to sue in his own 
 name. 
 
 At common law, choses in action were not 
 assignable ; but exceptions to this rule have 
 grown up by mercantile usage as to some 
 classes of simple contracts, and others have 
 been introduced by legislative acts, so that 
 now bills of exchange, promissory notes, and 
 bank-notes, to order or bearer, are universally 
 negotiable ; and notes not to order or bearer, 
 have become quasi negotiable; that is, an in- 
 dorsement will give a right of action in the 
 name of the assignor ; and in some states, by 
 statute, bonds and other specialties are assign- 
 able by indorsement. 
 
 And, in general, any chose in action can be 
 assigned so that the assignee can bring action 
 in name of assignor, and with same rights. 
 See Hare & W. Sel. Dec. 158-194; 1 Pars. 
 Contr. 202; Daniel, Negot. Instr. ; Benj. 
 Chalm. Digest, Bills, etc. ; Negotiable In- 
 
 STKUMENTS. 
 
 NEGOTIABLE INSTRUMENTS. The 
 
 weight of authority is in favor of the negotia^ 
 bility of instruments payable to bearer ; 14 
 Conn. 362. Besides notes, bills, and checks, 
 the following have been held to be negotiable 
 instruments: exchequer bills ; 4 B. & Aid. 1; 
 12 CI. & F. 787, 805; state and municipal 
 bonds ; 3 B. & C. 45 ; 96 U. S. 51 ; 3 Wall. 
 
 327 ; corporate bonds ; L. R. 3 Ch. Add 
 758 ; id. 154 ; L. R. 11 Eq. 478 ; 21 How 
 575; coupon bonds of an individual; 6 Ben! 
 175; coupon bonds of a corporation ; 9 Wall' 
 477 ; 14 id. 282 ; 20 id. 583 ; 66 N. Y. 14- 
 44 Penn. 63 ; (the question has been whether 
 such coupons are negotiable apart from the 
 bonds to which they were formerly attached 
 and the decisions establish tiieb neaotiabil' 
 ity ; 2 Mor. Tr. 660 ; 102 Mass. 503 ;)'goTern] 
 ment scrip ; L. R. 10 Ex. 337 ; U. S. Treas- 
 ury notes ; 21 Wall. 138 ; 57 N. Y. 573 1 post- 
 office orders ; 65 Law Times, 52 ; certificates 
 of deposit; 13 How. 218, 228 ; Pars. Bills 
 1, 2, 26; contra, 6 W. & S. 227; 8 W & 
 S. 353 ; 4 Cas. 452. The following have 
 been held not to be negotiable: Lottery 
 tickets; 8 Q. B. 134; dividend warrants; 
 9 Q. B. 396 ; iron scrip notes ; 3 Macq. 1 ; 
 debentures, on which authorities differ • L 
 R. 8 Q. B. 374. 
 
 In some of the states of the United States, 
 statutes have been enacted in regard to the 
 nature and operation of bills of lading and 
 warehouse receipts, but the statutes and inter- 
 pretations of them lack uniformity. Ware- 
 house receipts, bills of lading ; 14 M. & W. 
 403 ; 9 C. B. 297 ; 44 Md. 11 ; 115 Mass. 
 224; 12 Barb. 310; 4 Mor. Tr. 320; 101 
 U. S. 559; letters of credit; 2 How. D. S. 
 249; 40 Tex. 306, 318; 10 Pet. 482; 22 
 Pick. 228 ; 6 Hill, 543 ; 1 Macq. H. L. C. 
 513; certificates of stock; 28 N. Y. 600, 
 604 ; 13 Penn. 150 ; 86 Penn. 80 ; 10 Eep. 
 125; 2 W. N. 322; 17 N. Y. 592; 55 id. 
 41 ; 46 id. 325 ; 74 id. 226 ; are transferable 
 or assignable ; county warrants arenegotiable, 
 but not in the sense of the law merwiantj 2 
 Mor. Tr. 266. See Dos Passes, Stock Brokers. 
 
 An instrument in the form of a promissory 
 note drawn by a corporation, and bearing its 
 seal, is not a promissory note ne|dtiable by 
 the law merchant ; per Blatchfordy'i. J., in 
 8 Fed. Rep. 534. ''"^ 
 
 NEGOTIATE. The power to negotiate 
 a bill or note is the power to indorse and de- 
 liver it to another, so that the right of action 
 therein shall pass to the indorser or holder; 
 42 Md. 681. 
 
 NEGOTIATION. The deliberation 
 which takes place between the parties toaCh- 
 inga proposed agreement. 
 
 That which transpires in the negotiaijaft 
 makes no part of the agreement, unless intro- 
 duced into it. It is a general rule that no 
 evidence can be given to add, diminish, con- 
 tradict, or alter a written instrument ; Leake, 
 Contr. 26 ; 1 DaU. 426 ; 4 id. 340; S S. & 
 R. 609. 
 
 But this rule has been much modified, and 
 parol evidence is now held admissible to con- 
 tradict, vary, or even avoid a written instru- 
 ment where it would not have been executed 
 but for the oral stipulation, except in the case 
 of negotiable paper ; 90 Penn. 82. . 
 
 In MercantUe Law. The act by which 
 a bill of exchange or promissory note is p»' 
 
NEGOTIORUM GESTOR 
 
 283 
 
 NEUTRALITY 
 
 into circulation by being passed by one of the 
 original parties to another person. 
 
 The transfer of a bill in the form and 
 manner prescribed by the law merchant with 
 the incidents and privileges annexed thereby, 
 ». e. : — 
 
 The transferee can sue all parties to the in- 
 strument in his own name ; 
 
 The consideration for the transfer is prima 
 facie presumed ; 
 
 The transferor can under certain conditions 
 give a good title, although he has none him- 
 self ; 
 
 The transferee can further negotiate the bill 
 with the like privileges and incidents. 
 
 There are two modes of negotiation, viz. : 
 by delivery and by indorsement. The former 
 applies to bills, etc., payable to bearer; the 
 latter to those payable to order. See Chalm. 
 Dig. of Bills, etc., Benj. ed. S 106 et aeq. 
 
 Until an accommodation bill or note has 
 been negotiated, there is no contract which 
 can be enforced on the note : the contract, 
 either express or implied, that the party ac- 
 commodated will indemnify the other, is, till 
 then, conditional ; 2 M. & G. 911. 
 
 NBGOTIORUM GESTOR (Lat.). In 
 Civil Law. One who spontaneously, and 
 without authority, undertakes to act for an- 
 other, during his absence, in his affairs. 
 
 In cases of this sort, as he acts wholly with- 
 out authority, there can, strictly speaking, be 
 no contract ; but the civil law raises a quasi 
 mandate by implication for the benefit of the 
 owner, in many such cases ; Mackeldey, Civ. 
 Law, §460; 2 Kent, 616, n. ; Story, Bailm. 
 §§ 82, 189. 
 
 NEIP. In Old English Law. A woman 
 who was born a villein, or a bond-woman. 
 
 . NEMINE COHTRADICENTE (usually 
 abbreviated nem. con.'). Words used to signify 
 the unanimous consent of the house to which 
 they are applied. In England, they are used 
 in the house of commons ; in the house of 
 lords, the words used to convey the same idea 
 are nemine dissentiente. 
 
 NEPHEW. The son of a brother or sister. 
 Ambl. 614 ; 1 Jac. 207. 
 
 The Latin nepos, from which nepjiem is derived, 
 was used in the civil law for nephew, but more 
 properly for grandson ; and we accordingly find 
 neveu, the original form of nephew, in the sense 
 of grandson. Britton, c. 119. 
 
 According to the civil law, a nephew is in 
 the third degree of consanguinity ; according 
 to the common law, in the second : the latter 
 is the rule of common law ; 2 Bla. Com. 206. 
 But in this country the rule of the civil law 
 is adopted; 2 Hill. R. P. 194. In the United 
 States generally, there is no distinction be- 
 tween whole and half blood ; 1 Dev. 106 ; 2 
 Yerg. 115; 2 Jones, Eq. No. C. 202; 1 
 M'Cord, 456. 
 
 Nephews and nieces may be shown by circum- 
 stances to Include grand-nephews and grand- 
 nieces, and even a great-gi'and-niece ; 3 Barb. 
 Ch.466 ; 1 Abb. A pp. Dec. 314 ; but in a bequest, 
 
 would not include, without special mention, 
 nephews and nieces by marriage; 43 Penn. 25. 
 
 NEPOS (Lat.). A grandson. See Ne- 
 phew. 
 
 NEPTIS (Lat.). Granddaughter ; some- 
 times great-granddaughter. Calvinus, Lex.; 
 Vicat, Voc. Jur.; Code, 33. 
 
 NEUTRAL PROPERTY. Property 
 which belongs to neutral owners, and is used, 
 treated, and accompanied by proper insignia 
 as such. 
 
 Where the insured party has property and 
 commercial establishments and depositories in 
 different countries, if the property and con- 
 cern of any one are in, or 'belong to, a belli- 
 gerent country, they will have the national 
 character of such country though the national 
 character of the owner may be that of a neu- 
 tral; 1 Phill. Ins. § 164 ; 5 W. Rob. 302 ; 1 
 Wheat. 159; 16 Johns. 128. The declaration 
 of war by a nation subsequently to the time in 
 reference to which the policy takes effect will, 
 however, only affect ownership thereafter 
 acquired or acts thereafter done ; 1 Wash. C. 
 C. 219 ; 6 Cra. 274 ; 7 id. 506 ; 4 Mas. 256 ; 
 
 1 Johns. 192 ; 9 id. 388 ; 14 id. 308 ; 1 C. 
 Rob. 107, 336 ; 5 id. 2 ; 6 id. 364 ; 1 Binn. 
 203, 393; 5 id. 464; 3 Wheat. 245; 3 Gall. 
 274; 12 Mass. 246; 8 Term, 230; 1 Johns. 
 Ch. 363 ; 2 id. 191. 
 
 The description of the subject in the policy 
 of insurance, as neutral or belonging to neu- 
 trals, is, as in other cases, a warranty that the 
 property is what it is described to be, and 
 must, accordingly, in order to comply with the 
 warranty, not only belong to neutral owners at 
 the time of making the insurance, but must 
 continue to be owned during the period for 
 which it is insured, and must, so far as it de- 
 pends upon the assured, be accompanied by 
 the usual insignia, as such, and in all respects 
 represented, managed, and used as such; 
 Uougl. 732 ; 3 Term, 477 ; 1 Johns. 192 ; 
 
 2 id. 168 ; 1 Wash. C. C. 219 ; 2 Caines, 73; 
 6 Cra. 274 ; 4 Mas. 256 ; 1 C. Rob. 26, 336 ; 
 2 id. 133, 218; 1 Edw. Adm. 340. 
 
 NEUTRALITY. The state of a nation 
 which takes no part between two or more 
 other nations at war with each other. 
 
 Neutrality consists in the observance of a 
 strict and honest impartiality, so as not to af- 
 ford 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 J. B. Moore, 586. 
 A fraudulent neutrality is considered as no neu- 
 trality. But the exportation of contraband, 
 if confined to subjects, is not a breach of neu- 
 trality, though otherwise held by some writers. 
 The United States have always maintained the 
 right of exporting arms to belligerents in the 
 way of trade, and during the civil war the 
 Federal Government purchased warlike stores 
 from England to the value of over £ 2, 000, 000. 
 
NEVADA 
 
 284 
 
 NEVADA 
 
 Wheat. Int. L. Eng. ed. 1878, § 501 e. See the 
 same work, pp. 511-527, for a discussion of the 
 leading English and American cases, includ- 
 ing those growing out of the American civil 
 war. 
 
 The violation of neutrality by citizens of 
 the United States, contrary to the provisions 
 of the act of congress of April 20, 1818, 
 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, there- 
 fore, indictable. And by the 8th section of 
 the act, the president, or such other person as 
 he shall have empowered for that purpose, 
 may employ the land and naval forces and 
 the militia of the United States for the pur- 
 pose of taking possession of and detaining 
 any ship or vessel, with her prize or prizes, 
 etc., and for the purpose of preventing the 
 carrying on of any expedition or enterprise 
 contrary to the provisions of that act ; Whart. 
 Cr. Law, §§ 2778-2807, and cases there 
 cited; Brightly, Dig. U. S. Law, 688-690, 
 giving act of 1820, at length there cited ; acts 
 of 22 June, 1860, R, S. § 4090 ; 18 Feb. 
 1875, R. S. § 5287; 6 Pet. 445; 1 Pet. C. 
 C. 487. See Wheaton, Law of Nat.; Phill. 
 Int. Law, Marshall, Ins. 384 a; 1 Kent, 
 116 ; Burlamaqui, pt. 4, c. 5, ss. 16, 17 ; 
 Bynkershoeck, lib. 1, e. 9 ; Cobbett, Pari. 
 Deb. 406 ; Chitty, Law of Nat ; Vattel, 1. 
 3, c. 7, § 104 ; Woolsey, Int. L. §§ 155-165 ; 
 Martens, Precis, liv. 8, c. 7, § 306; Hall, 
 Neutrals ; International Law ; Block- 
 ade ; Contraband of War. 
 
 NEVADA. One of the stEites of the 
 United States of America. 
 
 It was admitted into the Union Oct. 31, 1864. 
 By the enabling act, approved March 21, 1864, 
 as amended by the act of May 5, 1866, its boun- 
 daries are defiiied as follows, to wit: Commencing 
 at a point formed by the Intersection of the 
 thirty-eighth degree of longitude west from 
 Washington, with the thirty-seventh degree o 
 north latitude; thence due west, along said 
 thirty-sevejith degree of north latitude, to the 
 eastern boundary line of the state of California ; 
 thence in a northwesterly direction, along the 
 said eastern boundary line of the state of .Cali- 
 fornia, to the forty-third degree of longitude 
 west from Washington ; thence north, along said 
 forty-third degree of west longitude, and said 
 eastern boundary line of the state of California, 
 to the forty-second degree of north latitude ; 
 thence due east, along the said forty-second de- 
 gree of north latitude, to a point formed by its 
 intersection with the aforesaid thirty-eighth de- 
 gree of longitude west from Washington ; 
 thence due south, along said thirty-eighth degree 
 of west longitude, to the place of beginning. 
 
 The consStution provides that every male citi- 
 zen of the age pf twenty-one years and upwards 
 who shall have actually and not constructively 
 resided in the state six months, and in the dis 
 trict or county thirty days, next preceding any 
 election, shall be entitled to vote for all officers 
 that now are, or hereafter may be, elected by the 
 people, and upon all questions submitted to the 
 electors on such elections, excepting that idiots 
 and insane persons, and those who have been 
 convicted of treason or felony in any state or 
 
 territory of the United States, unless restored to 
 civil rights, and those persons who, after arrivlne 
 at the age of eighteen, have voluntarily borne 
 arms against the United States, or held civil or 
 military ofBce under the so-called Confederate 
 States, or either of them, unless an amBesty be 
 granted them by the Federal Government are 
 debarred from the electoral privilege. Dmine 
 the day on which any general election shall be 
 held in this state, no qualified elector shall le 
 arrested by virtue of aaj civil process. Art. ii. 
 
 The LEaisLATivE Powek. — The legislatiye 
 authority is vested in a senate and assembly 
 designated " the legislature of the state of Ne^ 
 vada." 
 
 The'sessions are biennial, commencing on the 
 first Monday of January. 
 
 Senators and members of the assembly must 
 be duly qualified electors of the respective dig, 
 tricts and counties which they represent, and the 
 number of members of the senate must not be 
 less than one-third, noi- more than one-half pf 
 that of members of the assembly. 
 
 The members of the assembly are chosen bien- 
 nially by the qualified electors of their respective 
 districts, on the Tuesday next after the first 
 Monday in November, and their terms of office 
 are two years froni the day next after the elec- 
 tion. 
 
 Senators are chosen at the same time andfilaee 
 as members of the assembly, and their term of 
 office is four years from the day next after their 
 election. 
 
 Each house judges of the qualifications, elee- 
 tions, and returns of its own members, choosei 
 its own officers (except the president of the sen- 
 ate), determines the rules of its proceeflingp. 
 and, with the codcurrence of two-thirds of slj 
 the members elected, may expel a member. 
 
 Members of the legislature are privileged fram 
 arrest on civil process during the session of the 
 legislature, and for fifteen days next before flu 
 commencement of each session. 
 
 Any bill may originate in either house of the 
 legislature, and all bills passed by one maybe 
 amended in the other. 
 
 The Exeoctive Povtee. — The governor Is 
 elected at the time and place of voting fot mem- 
 bers of the legislature, and holds his office for 
 four years from the time of his installation, an4 
 until his successor is qualified. 
 
 No person is eligible to the office of goTcmor 
 who is not a qualified elector, and who, at the 
 time of such election, has not attained the ige 
 of twenty-five years and been a citizen of the 
 state for two years next preceding the election. 
 
 The governor is commander-in-chief of the 
 military forces of the state, except -when they 
 are called into the service of the United States. 
 
 He transacts all executive business with the of- 
 ficers of the government, civil and military, and 
 may require information in writing from the ot 
 fleers ,of the executive department upon any sub- 
 ject relating to the duties of their respectiW 
 offices. He may fill vacancies in oflices whepe n? 
 mode is provided by the constitution and laws 
 for filling such vacancy ; the commissionsof such 
 appointees to expire at the next election ai« 
 qualification of the person elected to such om, 
 He may on extraordinary occasions convene tM 
 legislature in special session. In case of i«^ 
 agreement between the two houses as tothe tim 
 of adjournment, he may adjourn the legj6latii«) 
 provided it be not beyond the time fixed lor toe 
 next meeting thereof. „j 
 
 "•ie governor, justices of the supreme conn, 
 attorney general, or a major part ol weui, 
 
 The 
 and 
 
NEVADA 
 
 285 
 
 NEW ASSIGNMENT 
 
 of whom the governor shall be one, may remit 
 fines and forfeitures, commute punishments and 
 grant pardons after conviction in all oases, ex- 
 cept treason and impeachment, subject to such 
 regulations as may be provided by law relative 
 to the manner of applying for pardons. 
 
 J. lieutenant-governor shall be elected at the 
 game time and places and in the same manner 
 as the governor, and his term of office, and his 
 eligibility shall also be the same. He shall be 
 president of the senate, and in case of the death, 
 removal, inability, or absence of tlje governor, 
 the duties of his otfice shall devolve upon the 
 lieutenant governor for the remainder of his 
 term, or until the disability shall cease. A 
 secretary of state, a treasurer, a controller, a sur- 
 veyor general, and an attorney general shall be 
 elected at the same time and places, and in the 
 same manner as the governor. The term of of- 
 fice is the same as that of the governor. Any 
 elector is eligible to those olBces. 
 
 The Jitdicial Power. — The judicial power is 
 vested in a supreme court, district courts, and in 
 justices of the peace. The legislature may also 
 establish courts for muiiicfpal purposes only, in 
 incorporated towns and cities. 
 
 The supreme court consists of a chief justice 
 and two associate justices, a majority of \^hom 
 constitute a quorum. Provided, that the legisla- 
 ture may provide for the election of two addi- 
 tional associate justices, and if so increased, 
 three shall constitute a quorum. 
 
 The justices of the supreme court are elected 
 at the general election and hold office for the 
 term of six years, the senior justice in commis- 
 sion being chief justice, and, in case of the com- 
 missions of two or inore justices bearing the same 
 date, the chief justice is determined by the draw- 
 ing of lots between them. The jurisdiction of 
 this court is appellate in all cases in equity ; and 
 also in law in which is involved the title of right 
 of possession to, or the possession of real estate 
 in mihing claims, or the legality of any tax, im- 
 posts, assessment, toll, or municipal fine, or in 
 which the demand (exclusive of Interest) or the 
 value of the property in controversy exceeds 
 three hundred dollars ; also in all other civil 
 cafies not included in the general subdivisions of 
 law and e'quity, and also in questions of law 
 albne in all criminal cases in which the offence 
 charged amounts to felony. This court also has 
 power to issue writs of mandamus, certiorari, pro- 
 hibition, quo warranto, and habeas corpus, and 
 all writs necessary or proper for the complete ex.' 
 ercise of its appellate jurisdiction. 
 
 Each of the justices has power to issue writs 
 of habeas corpus to all parts of the state, return- 
 able before himself, or the supreme court, or any 
 district court in the state or judge thereof. 
 
 The state is divided into nine judicial districts, 
 the judges of which are elected by the electors 
 and hold office for four years, the first judicial 
 district having three judges of concurrent juris- 
 diction. 
 
 The district courts have original jurisdiction in 
 all cases in equity ; and also all cases in law, 
 Involving the title to or possession of real property 
 or mining claims, or the legality of any tax, im- 
 post, etc. in which the demand or value exceeds 
 three hundred dollars, exclusive of interest ; 
 also in all cases relating to the estates of de- 
 ceased persons, the persons and estates of minors 
 and Insane persons, and of the action of forcible 
 entry and detainer, and all criminal cases not 
 otherwise provided for by law. They have final 
 appellate jurisdiction in cases arising in justices' 
 courts and such other inferior tribunals as may 
 be established by law. They have also the power 
 
 to issue writs of mandamus, injunction, quo war- 
 ranto, certiorari, etc. 
 
 The terms of the supreme court are held at the 
 seat of government, and those of the district 
 courts at the county seats of their respective 
 counties, or at such place as the legislature may 
 determine when more than one county is in- 
 cluded in a district. 
 
 The Justices of the Peace have jurisdiction in 
 such cases as the legislature may determine ; 
 provided, that the amount of the demand or 
 value of the property does not exceed three hun- 
 dred dollars, and that they shall not have juris- 
 diction in cases wherein the title to real estate or 
 mining claims or questions of boundaries to land 
 are involved, or of cases that conflict in any man- 
 ner with the jurisdiction of the state courts of 
 record. 
 
 The legislature may fix by law the powers, 
 duties, and responsibilities of any municipal 
 court that may be created. Art iv. 
 
 NEVER INDEBTED. A plea to an ac- 
 tion of indebitatus assumpsit, by which the 
 defendant asserts that he is not indebted to the 
 plaintifi'. 6 C. & P. 545 ; 1 M. & W. 542 ; 
 1 Q. B. 77. The plea of never indebted has, 
 in England, been substituted for nil debet, in 
 certain actions specified in schedule B (36) of 
 the Common Law Procedure Act of 1852 ; 
 and the efiect of the plea never indebted is to 
 deny those facts from which the liability of the 
 defendant arises. In actions on negotiable 
 bills or notes, never indebted is inadmissible ; 
 Beg. Gen. Hil. T. 1833, §§ 6, 7 ; 3 Chitty, 
 Stat. 560. By the judicature act, 1875, Ord. 
 xix. r. 20, a defendant is no longer allowed 
 to deny generally the facts alleged by the 
 plaintiff; Whart. Lex. A defendant cannot, 
 under the plea of "never indebted," con- 
 tend that, though a contract was made in fact, 
 it was void in point of law, for the facts from 
 which its invalidity is inferred must form the 
 subject of a special plea ; Moz. & W. 
 
 NEW AND USEFUL INVENTION. 
 A phrase used in the act of congress relating 
 to granting patents for inventions. 
 
 The invention to be patented must not only 
 be new, but useful, — that is, useful in contra- 
 distinction to frivolous or mischievous inven- 
 tions. It is not meant that the invention 
 should in all cases be superior to the modes 
 now in use for the same purposes ; 1 Mas. 
 182, 302 ; 4 Wash. C. C. 9 ; 1 Pet. C. C. 
 480, 481 ; 1 Painej 203 ; 3 C. B. 425. See 
 Patent. 
 
 NEW ASSIGNMENT. Are-statement 
 of the cause of action by the plaintiff, with 
 more particularity and certainty, but consist- 
 ently with the general statement in the de- 
 claration. Staph. PI. 241 ; 20 Johns. 43. 
 
 Its purpose is to avoid the effect of an eva- 
 sive plea which apparently answers the de- 
 claration, though it does not really apply to 
 the matter which the plaintiff had in view ; 
 1 Wms. Saund. 299 6, note 6. Thus, if a de- 
 fendant has committed two assaults on the 
 plaintiff, one of which is justifiable and the 
 other not, as the declaration may not distin- 
 guish one from the other, the defendant may 
 justify, and the plaintiff, not being able either 
 
NEW BRUNSWICK 
 
 286 
 
 NEW HAMPSHIRE 
 
 to traverse, demur, or confess and avoid, must 
 make a new assignment. 
 
 There may be several new assignments in 
 the course of the same action | 1 Chitty, PI. 
 614. A plaintiff may reply to a part of the 
 plea and also make a new assignment. A new 
 assignment is said to be in the nature of a new 
 declaration ; Bacon, A.br. Trespass (I 4, 2) ; 
 1 Saund. 299 c; but is more properly con- 
 sidered as a repetition of the declaration ; 1 
 Chitty, PL 602 ; difl'ering only in this, that 
 it distinguishes the true ground of complaint, 
 as being difi'erent from that which is covered 
 by the plea. Being in the nature of a new or 
 repeated declaration, it is, consequently, to be 
 framed with as much certainty or specification 
 of circumstances as the declaration itself. In 
 some cases, indeed, it should be even more 
 particular ; Bacon, Abr. Trespass (I 4, 2) ; 1 
 Chitty, PI. 610; Steph. PL 245. See 3 Bla. 
 Com. 311; Archb. Civ. PL 286; Doctrina 
 Plac. 318 ; Lawes, Civ. PL 163. In England, 
 under the Judicature Act, 1875, Or(L x'x. 
 r. 14, no new assignment is necessary or is to 
 be used ; but everything which has heretofore 
 been alleged by way of new assignment is to 
 be introduced by way of amendment of the 
 statement of claim ; Whart. Diet. 6th ed. 
 
 NEAV BRUNS'WICK. A province of 
 the Dominion of Canada. 
 
 It is bounded north by the river Eestigouche 
 and the bay of Chaleur, east by the gulf of St. 
 Lawrence, south by Nova Scotia and the Bay of 
 Fundy, and west by the state of Maine. Its 
 length from north to south is one hundred and 
 eighty miles, breadth one hundred and fifty miles, 
 giving an area of twenty-five thousand square 
 miles. 
 
 New Brunswick was originally part of the 
 French province of Acadie (see NoVa Scotia) , 
 but was made a distinct province in 1784, having 
 been first settled by the French A. d. 1639, 
 ceded to the English in 1713 by the treaty of 
 Utrecht, and settled by the British government 
 in 1764. By the Imperial Act, known as the 
 British North American Act, which went into 
 operation July 1, 1867, New Brunswick became 
 a province of the Dominion of Canada. See 
 Canada. 
 
 NEW FOR OLD. A term used in ma- 
 rine insurance in casea 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 Cow. 265 ; 4 
 id. 245 ; 4 Ohio, 284 ; 7 Pick. 259 ; 14 id. 
 141. The deduction, in the United States, 
 is usually one-third, and is made from the 
 cost of labor and material, and in practice 
 also from the incidental expenses of repairs, 
 as towage, etc. ; but see, as to this last, 3 
 Sumn. 45 ; 9 Wall. 203. The deduction is 
 without regard to the age of the vessel ; 1 1 
 Johns. 315. A late writer criticizes the rule 
 of thirds, and suggests that the increase of 
 iron hulls will change the rule of law ; 
 Gourlie, Gen. Av. In Liverpool, no dediic 
 
 vessels for the first eigh. 
 
 tion is made on iron 
 teen months. 
 
 NEW HAMPSHIRE. The name of 
 one of the original thirteen United States of 
 America. 
 
 It was subject to Massachusetts from 1641 to 
 1680. Many of its institutions and laws are to 
 be traced to that connection. It was govemed 
 as a province, under royal commisBions, by a 
 governor and council appointed by the kite 
 and a house of assembly elected by the people 
 until the revolution. ' 
 
 In January, 1776, a temporary constitution 
 was adopted, which continued till 1784. The 
 constitution adopted in 1784 was amended iy s 
 convention of delegates held at Concord, ap. 
 proved by the people in their town-meetings, and 
 ertablished by the convention in February, 1792, 
 This constitution was amended in 1850, by abol- 
 ishing the property qualifications for certain 
 offices, and amended again in 1877, changing 
 it in eleven particulars, the principal of whicli 
 were the abolition of the religious test, and 
 adoption of biennial elections, increasing number 
 of senators, and changing election from March 
 to November. 
 
 Every male Inhabitant of every town and 
 place, of twenty-one years of age and upwards, 
 except paupers and persons excused from paying 
 taxes at their own request, is entitled to vote in 
 the town-meetings for the officers elected by the 
 people. By statute, the names of all voters are 
 required to be placed by the supervisors of the 
 check-list on a check-list ; and no vote will be 
 received unless the name of the voter is so reg- 
 istered. Six months' residence in the town is re- 
 quired to entitle a party to be registered on the 
 check-list. 
 
 The LEOiSLATrvE Powee. — This is lodged ta 
 the senate and house of representatives, each of 
 which has a negative upon the other, and which 
 together are styled the Gmeral Court of Nm 
 Sampihire. 
 
 The Senate is composed of twenty-four mem- 
 bers, elected for the term of two years, one from 
 each district, by the people of the district If 
 no person Is elected by the people for any dis- 
 trict, or if a vacancy occur, one is, elected, by 
 joint ballot of the two houses, from the two per- 
 sons having the highest number of votes. A 
 senator must be thirty years old, an inhabitant 
 of the district, and, for seven years next before 
 his election, of the state. 
 
 Representatives are elected biennially, for the 
 term of two years, by the voters of the several 
 towns and districts. Each town having six hun- 
 dred Inhabitants by the last general census of the 
 state taken by authority of the United Statesorof 
 this state, may elect one representative ; if eigh- 
 teen hundred such inhabitants, may elect two 
 representatives ; and so proceeding in that pro- 
 portion, making twelve hundred such inhabi- 
 tants the mean increasing number for any addi- 
 tional representative. Towns and places having 
 less than six hundred inhabitants may to 
 classed by law for the chance of a representa- 
 tive ; and towns which cannot be classed without 
 great inconvenience may be authorized by law 
 to elect. A representative must be an inhabi- 
 tant of the town for which he is elected, and, 
 for two years next preceding his election, of tlie 
 state. The constitution contains the usual pro- 
 visions for securing the organization of each 
 house, giving control of the conduct of mem- 
 bers, providing for keeping and publisbins » 
 record of proceedings, for open sessions, 
 
 limit- 
 
 ing the power of adjournment of houses se^ 
 rately, securing members from arrest on ciW 
 
NEW HAMPSHIRE 
 
 287 
 
 NEW JERSEY 
 
 process while going to, remaining at, and re- 
 turning from, tlie session, and for securing free- 
 dom of debate. The general assembly has full 
 legislative powers, may constitute courts, regu- 
 late taxes, secure equal representation, etc., un- 
 der restrictions similar to those contained in the 
 constitutions of the other states. 
 
 The Executive Power. — This is lodged In a 
 governor and council. 
 
 The Governor is elected biennially, and holds 
 his office for two years from the first Wednesday 
 in June. If no person has a majority of votes, 
 the senate and house of representatives, by joint 
 ballot, elect one of the- two persons having the 
 highest number of votes. In case of a vacancy, 
 the president of the senate exercises the powers 
 of the office, but cannot then act as senator. 
 The governor must be of the age of thirty years, 
 and an inhabitant of the state for seven years 
 next preceding his election. 
 
 The governor is commander-in-chief of all the 
 military forces of the state. He has a limited 
 veto upon the acts and resolves of the general 
 court, which are invalid unless they are ap- 
 proved and signed by him ; but if he does not 
 return any bill to the house in which it originated, 
 with his objections, within five days after it is pre- 
 sented to him, provided the general court con- 
 tinue in session, or if the two houses, after con- 
 sidering his objections, shall again pass the same 
 by a vote of two thirds of each house, the bill 
 will become a law as if he had signed it. In 
 case any cause of danger to the health of the 
 members exists at their place of meeting, he may 
 direct the session to be held at another place. 
 
 Cmmcillors are elected biennially, must have 
 the qualifications of senators, and hold office for 
 the same terra as the governor. The state is di- 
 vided by law into five districts, in each of which 
 a councillor is elected, and vacancies are filled 
 by a lilce election. If no person has a majority 
 of votes, the two houses, by joint ballot, elect a 
 councillor from the two persons having the high- 
 est number of votes. 
 
 The governor and council may adjourn or pro- 
 rogue the general court, in case of disagreement 
 of the two houses, for any period not exceeding 
 ninety days. They nominate and appoint all 
 judicial officers, the attorney-general and coro- 
 ners, and all general and field officers of the mili- 
 tia, — each having a negative upon the other. 
 Nominations must be made three days before an 
 appointment can be made, unless a majority of 
 the council assent. All commissions must be in 
 the name and under the seal of the state, signed 
 by the governor and attested by the secretary, 
 and the tenure of the office stated therein. 
 
 The power of pardoning ofiences — after convic- 
 tion only, however — is vested in the governor 
 and council, except in cases of impeachment. 
 No money can be drawn from the treasury of the 
 state but by warrant of the governor, with the 
 advice and consent of the council. 
 
 The JtTDioiAL PowEE. — The Supreme Court 
 consists of a chief justice and six assistant jus- 
 tices, appointed by the governor and council, to 
 hold during good behavior, until seventy years 
 of age. It has original jurisdiction of all cases 
 and proceedings at common law, civil and crimi- 
 nal, except those in which justices of the peace 
 have jurisdiction ; of all cases in equity ; in all 
 cases of divorce and alimony ; and appellate 
 jurisdiction in all appeals from courts of pro- 
 bate, and in all appeals from police courts and 
 from justices of the peace. 
 
 Tiial terms of the supreme court are held by a 
 single judge in every county twice, and in the 
 
 larger counties three times a year ; but two 
 judges must attend in any capital trial. At these 
 terms are entered and tried most cases at com- 
 mon law and appeals from police courts and jus- 
 tices of the peace ; and all trials by jury are had 
 there ; but cases may be tried without a jury, by 
 consent of parties. The court has power to ap- 
 point a referee where the amount in dispute does 
 not exceed a hundred dollars, and the title to 
 real estate Is not involved. Any question of law 
 arising at these terms may be transferred to the 
 law terms for decision by the whole court. 
 
 Two law terms are held annually at Concord. 
 At these terras are entered and heard appeals 
 from courts of probate, writs of error and certi- 
 orari, cases of mandamos, quo warranto, and 
 the like, and all questions of law transferred from 
 the trial terms. No trials by jury are held at law 
 terms ; but issues of fact are transferred to the 
 trial terms. Four justices are a quorum at the 
 law terms, and the concurrence of four is neces- 
 sary to a decision qf any law question. 
 
 Jiidges of Probate are appointed By the govern- 
 or and council in each county, who hold their of- 
 fice during good behavior, unless sooner removed 
 by address of both houses or by impeachment. 
 They have jurisdiction of all matters relating to 
 the estates of persons deceased and the guardian- 
 ship of minors, Insane persons, and spendthrifts, 
 subject to appeal to the supreme court. 
 
 Justices of the Peace are appointed in sufficient 
 number by the governor and council, who hold 
 their office during the term of five years, unless 
 sooner removed by address of both houses of the 
 legislature. They have jurisdiction of all civil 
 causes at common law in which the damages 
 demanded do not exceed thirteen dollars and 
 thirty-three cents, and where the title to real 
 estate is not involved, and in many minor crimi- 
 nal cases, subject to appeal to the supreme court. 
 They have authority to arrest, examine, and bind 
 over for trial at the supreme court persons 
 charged with higher offences. 
 
 Police Courts have exclusive jurisdiction, in 
 the cities and places where they are established, 
 in all cases where justices of the peace have juris- 
 diction elsewhere. 
 
 No judge, clerk, or register of any court, or 
 justice of the peace, can act as attorney, be of 
 counsel, or receive fees as advocate or counsel, 
 in any case which may come before the court of 
 which he is an officer. 
 
 County Commissioners are elected, three in 
 each county, by the voters of the county, for the 
 term of two years. They have general control 
 and management of the financial affairs of the 
 county, of the public buildings, of the roads, of 
 paupers, and of levying the county tax. 
 
 NEW JERSEY. The name of one of 
 the original thirteen states of the United 
 States of America. 
 
 The territory of which the state is composed 
 was included within the patent granted by 
 Charles II. to his brother James, duke of York, 
 bearing date on the 13th of March, 1663-4. This 
 grant comprised all the lands lying between the 
 western side of Connecticut river and the east 
 side of Delaware bay,- and conferred powers of 
 government over the granted territoiy. At this 
 time the province was in the possession and under 
 the government of Holland. Before the close of 
 the year the inhabitants of the province sub- 
 mitted to the government of England, on the 
 23d and 24th of June, 1664. The duke of York, 
 by deeds of lease and release, conveyed to John 
 Lord Berkely and Sir George Carteret, their heirs 
 and assigns forever, "all that tract of land ad- 
 jacent to New England and lying and being to 
 
NEW JERSEY 
 
 288 
 
 NEW JERSEY 
 
 the westward of Long Island and Manhitas 
 Island, and bounded on the east part by the 
 main sea, and part by Hudson river, and hath 
 upon the west Delaware bay or river, and ex- 
 tendeth southward to the main ocean aS far as 
 Cape May at the mouth of Delaware bay, and to 
 the northward as far as the northernmost branch 
 of the said bay or river of Delaware, which is in 
 41 degrees and 40 minutes of latitude, and 
 crosseth over thenee in a straight line to Hud- 
 son's river in forty-one degrees of latitude; 
 which said tract of land is hereafter to be called 
 Nova Caesaria, or New Jersey. 
 
 This grant first defined the boundaries and 
 gave the name of the province. It confeiTed 
 upon the grantees, with the territory, powers of 
 government in as full and ample manner as they 
 were conferred by the crown upon the duke of 
 York. Lord Berkely and Sir George Carteret, 
 being by virtue of this conveyance the sole pro- 
 prietors of New Jersey, on the 10th of February, 
 1664-5, signed a constitution which they pub- 
 lished under the title of " The conseesions and 
 agreement of the lords proprietors of the pro- 
 vince of Nova Caesaria, or New Jersey, to and 
 with all and every of the adventurers, and all 
 such as shall settle or plant there." This docu- 
 ment, under the title of " The Consessions," was 
 regarded as the first constitution of New Jersey, 
 and continued in force until the division of the 
 province in 1676. The instrument was considered 
 as irrevocable, and therefore of higher authority 
 than the acts of assembly, which were subject to 
 alteration and repeal. War having been declared 
 by England against Holland in 1673, the Dutch 
 were again in possession of the country, and the 
 inhabitants submitted to their authority. 
 
 By the treaty of peace between England and 
 Holland on the 9th of February, 1674, the country 
 was restored to the possession of the English. 
 On the conclusion of peace, in order to remove 
 all grounds of objection to his title on account of 
 the recapture of the country by the Dutch, the 
 duke of York obtained from the crown a new 
 patent, similar to the first, and dated on the 29th 
 of June, 1674. On the 20th of July in the same 
 year, the duke of Tork made a second grant of 
 a portion of the province to Sir George Carteret 
 Individually. The partition which this patent 
 was intended to secure. In addition to the confir- 
 mation of Carteret's grant, was accomplished by 
 deeds of partition executed July 1, 1676, between 
 Carteret and the trustees of Byllinge. In 1702, 
 the proprietors of the two provinces, called re- 
 spectively East New Jersey and West New Jersey, 
 surrendered their powers of government to 
 Queen A nne, still retaining their title to the land. 
 The two divisions constituted thenceforth but 
 one colony. The colony was governed by a gov- 
 ernor and council appointed by the crown, and 
 an assembly of the representatives of the people 
 chosen by the freeholders. This form of govern- 
 ment continued till the American revolution. 
 
 The first constitution of the ttate of New Jer- 
 sey was adopted by the provisional congress on 
 the second day of July, 1776. This body was 
 composed of representatives from all the counties 
 of the state, who were elected on the fourth Mon- 
 day of May, and convened at Burlington on the 
 tenth day of June, 1776. It was finally adopted 
 on the second day of July, but was never sub- 
 mitted to a popular vote. This constitution con- 
 tinued in force until the first day of September, 
 1844, when It was superseded by the existing con- 
 stitution. The new constitution was adopted May 
 14, 1844, by a convention composed of delegates 
 elected by the people in pursuance of an act passed 
 by the legislature. The constitution thus fi-amed, 
 having been submitted to and adopted by the 
 
 people at an election held on the tjiirteenth day of 
 August, took efiect and went into operation mr. 
 suant to one of its provisions, on the twenty-eec^ 
 ond of September, 1844. This constitution was 
 amended at a special election held Sentembpr 1 
 1875. ' 
 
 The right of suflTrage is by the eonstitntlon 
 vestedin every [male] citizen of the United States 
 of the age of twenty-one years, who has been 
 a resident of the state one year, and of the county 
 in whichhe claims his vote five months, next before 
 the election : provided that no person in the mill- 
 tary, naval, or marine service of the United States 
 shall be considered a resident of the state by being 
 stationed in any garrison, barrack, or military or 
 naval place or station within the 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 ; and provided further, that in time of war 
 no elector in the actual military or naval senice 
 of the state or of the United States, in the army 
 or navy thereof, shall be deprived of his vote by 
 reason of his absence from such election district. 
 
 The LegisI/Ative Powek. — This is lodgecHn 
 a senate and general assembly, which meet sepa- 
 rately the second Tuesday in January each year. 
 
 The Senate is composed of one senator from 
 each county, elected by the people for three years. 
 They are divided into classes, so that one-thirclot 
 the senate is changed each year. A senator mnst 
 be entitled to vote, at least thirty years old, Iiave 
 been a citizen and inhabitant of the state for four 
 years, and of the county for which he is chosen 
 one year, next before election. 
 
 The General Assembly is composed of members 
 elected annually by the voters of the several 
 counties. They are apportioned on the basis of 
 population ; and each county is to have one mem- 
 ber at least, and the whole number is not to ex- 
 ceed sixty. Each member must be entitled to 
 vote, at least twenty-one years old, must have 
 been a citizen and inhabitant of the state for tvfo 
 years, and of the county for which he is chosen 
 one year, next before his election. 
 
 The Executivb Power. — The Governor is 
 elected by the legal voters of the state for the 
 term of three years, commencing on the third 
 Tuesday of January next ensuing his election. 
 He is incapable of holding the ofllce for three 
 years next after his term of service. He mnst 
 be not less then thirty years of age, and have 
 been for twenty years at least a citizen of tie 
 United States, and a resident of this state seven 
 years next before his election, unless he has been 
 absent during that time on the public busines! 
 of the United States or of this state. 
 
 He is the commander-in-chief of all the mili- 
 tary and naval forces of the state ; has power, 
 except in cases of impeachment, to suspend tie 
 collection of fines and forfeitures, and to grant 
 reprieves, to extend until the expiration of » 
 time not exceeding ninety days after conviction; 
 in connection with the chancellor and the sK 
 judges of the court of errors and appeals, or tne 
 major part of them, can remit fines and forfeit- 
 ures, and gi-ant pardons In all cases after con- 
 viction, except impeachment ; and is 1'*'''* "' 
 impeachment for misdemeanor in office during 
 his continuance In office and for two yeare there- 
 after. In case of the death, resignation, or re- 
 moval from office of the governor, the powers, 
 duties, and emoluments of the office deTolve 
 upon the president of the senate ; and In caeeoi 
 his death, resignation, or removal, then upon 
 the speaker of the house of assembly, until an- 
 
NEW JERSEY 
 
 289 
 
 NEW MEXICO 
 
 other governor shall be elected and qualified ; 
 but in such case another governor shall be 
 chosen at the next election ifor members of the 
 legislature, unless such vacancy occur within 
 thirty days preceding such election, In which 
 case a governor shall be chosen at the next suc- 
 ceeding election for members of the legislature. 
 
 The Judicial Power. — The Coiwrt of Errors 
 and Appeals consists of a chancellor, the justices 
 of the supreme court, and six judges, or a major 
 part of them. These six judges are appointed 
 for six years by the governor, with the consent of 
 the senate. 
 
 The seat of one of the judges is vacated each 
 year: so that one judge is annually appointed. 
 No member of the court who has given a judi- 
 cial opinion in the cause in favor of or against any 
 error complained of, may sit as a member or 
 have a voice on the hearing ; but the reasons for 
 such opinion shall be assigned to the court in 
 writing. Three sessions are held annually, at 
 Trenton. It is the highest court of appeals from 
 decisions of the supreme court, court of chan- 
 cery, and circuit court. After decision pro- 
 nounced, the cause is remitted to the inferior 
 courts for judgment and execution according to 
 the decision. 
 
 The Court of Chancery consists of a chancel- 
 lor, appointed by the governor for a term of 
 seven years, who is also the ordinary or surro- 
 gate general and judge of the prerogative court. 
 Appeals lie from the order or decree of the or- 
 phans' court to the prerogative court. The 
 chancellor is assisted by a vice-chancellor, who 
 is appointed by the chancellor for five years. 
 
 The Supreme Court consists of one chief and 
 four assistant judges, appointed by the governor, 
 with the advice and consent of the senate, for 
 the term of seven years. This number may be 
 increased or decreased by law, but may never be 
 less than two. The judges are ex officio justices 
 of the inferior court of common pleas, orphans' 
 court, and court of general quarter sessions. At 
 least three stated terms are to be held annually, at 
 Trenton, at such times as the court may appoint. 
 This is the court of general inquiry, common- 
 law jurisdiction. When issues of fact arise, 
 they are sent to the circuit to be found by a jury 
 and single judge. 
 
 Circuit Courts are held in every county in the 
 state, by one or more justices of the supreme 
 court, or a judge appointed for the purpose. 
 For this purpose the state is divided into nine 
 districts, and one judge assigned to each district. 
 In all cases within the county, except in those 
 of a criminal nature, these courts have common- 
 law jurisdiction concurrent with the supreme 
 courts ; and any final judgment of a circuit court 
 may be docketed in the supreme court, and 
 operates as a judgment obtained in the supreme 
 court from the time of such docketing. Final 
 judgments in any circuit court may be removed 
 hy writ of error into the supreme court, ordirectly 
 into the court of errors and appeals ; and ques- 
 tions of law which arise are to be certified by 
 the presiding judge to the supreme court for 
 decision. 
 
 Common Pleas Court. This In some counties 
 is composed of three judges, and, in certain 
 counties, of four judges, one of whom must be 
 a counsellor at law, and is. the president judge. 
 The judges are appointed for five years by senate 
 and general assembly by joint ballot. No more 
 than one judge may be appointed in each year. 
 
 Oyer and Terminer and General Jail Delivery. 
 
 This court is held by one or more justices of the 
 
 supreme court, and one or more of the court of 
 
 common pleas, in each county, at the times of 
 
 Vol. II.— 19 
 
 holding the circuit court, and such other times 
 as the judge of the supreme court may appoint. 
 It has cognizance of all crimes whatever of an 
 indictable or presentable nature committed in 
 the county where the court is held. 
 
 Court of Quarter Sessions. This court is com- 
 posed of two or more justices of the court of 
 Common pleas in each county. It has cognizance 
 of all crimes for purposes of indictment; but all 
 capital crimes and those of the graver character 
 must be tried by the court of oyer and terminer 
 or supreme court. 
 
 The Orphans' Court is held iu each county, by 
 two or more judges of the common pleas court. 
 It has the original jurisdiction of the probate of 
 wills, settlement of the estates of decedents, 
 appointment and control of administratoi's and 
 executors, and the care of minors, including the 
 appointment and control of guardians. Three 
 terms of this court are held annually. An appeal 
 lies to the prerogative court held by the chan- 
 cellor. The duties of clerk or register of this 
 court are discharged by a surrogate, elected by 
 the people of the county for five years. 
 
 Justices of the Peace are elected by the people 
 of each township, or ward of city, not less than 
 two nor more than five for each such division, 
 for five years. They have cognizance within 
 their counties of civil matters to an amount not 
 exceeding two hundred dollars, except those 
 cases involving land titles, and actions of re- 
 plevin, slander, or trespass for assaul t and battery 
 or imprisonment. A jury of six must be im- 
 panelled on demand of either party. In cities 
 containing twenty thousand inhabitants there 
 are district courts which have the civil jurisdic- 
 tion of justices of the peace. 
 
 NEW MATTER. Iu Pleading. Mat- 
 ter not previously alleged. Statements of 
 fact not previously alleged by either party to 
 the pleadings. Where special pleading pre- 
 vails, such matter must be pleaded in avoid- 
 ance, and it must, in general, be followed by 
 a verification; Gould, PI. c. 3, § 195; 1 
 Chitty, PI. .538 ; Stepb. PI. 251 ; Comyns, 
 Dig. Pleader (E32); 1 Wms. Saund. 103, 
 n. 1 ; 2 Lev. 5; Ventr. 121; 3 Bouvier, 
 Inst. n. 2983. See Plea.. 
 
 In equity, new matter, discovered by either 
 plaintiff or defendant, may be introduced by 
 cross or supplemental bill before a decree has 
 been pronounced, but not ^by amendment 
 after an answer has been filed ; 1 Paige, Ch. 
 200; Harr. Ch. 438; 4 Bouvier, Inst. nn. 
 4385-4387. 
 
 NEVT MEXICO. One of the territories 
 of the United States. 
 
 By act of congress, approved September 9, 
 1850, the territory of New Mexico was constituted 
 and described as " all that portion of the territory 
 of the United States bounded as follows: Begin- 
 ning at a point in the Colorado river where the 
 boundary line with the republic of Mexico crosses 
 the same ; thence eastwardly with that boundary 
 line to the Kio Grande; thence, following the 
 main channel of the Rio Grande, to the parallel 
 of the 32° of north latitude ; thence east with 
 that degree to its intersection with the 103° of 
 longitude W. of Greenwich ; thence north with 
 that degree of longitude to the parallel of 38° 
 of north latitude ; thence west with that parallel 
 to the summit of Sierra Madre ; thence south 
 with the crest of those mountains to the 37th 
 parallel of north latitude ; thence west with that 
 parallel to its interjection with the boundary-line 
 
NEW MEXICO 
 
 290 
 
 NEW TRIAL 
 
 of the Btate Of California; thence with such 
 boundai7-line to the place of beginning." A 
 proviso was annexed that the United States might 
 divide the territory into two or more, and that 
 when admitted as a state the said territory, or 
 any portion of the same, should be received into 
 the Union with or without slavery, as their con- 
 stitution might prescribe at the time of admis- 
 sion. 9 U. 8. Stat, at Large, 446. 
 
 Colorado was partly formed from New Mexico 
 in 1801, and in 1863 the entire territory of Arizona, 
 which reduced New Mexico to its present boun- 
 daries. By the organic act, the powers of the 
 territory are lodged in three branches, — the 
 legislative, executive, and judicial. The opera- 
 tion of this act was suspended until the Texan 
 boundary was agreed upon, when It went into 
 force by proclamation of the president, Decem- 
 ber 13, 1850. 9 Stat, at L. App. 
 
 The regulations as to the qualifications of 
 voters, subject to change by the territorial legis- 
 lature, are that all male inhabitants who have 
 lived three mouths in the territory and are citi- 
 zens of the United States, or who have declared 
 their intention to become such, and fifteen days 
 next before election in the county in which they 
 offer to vote, are qualified. In addition to these 
 classes, also, all persons who are recognized as 
 citizens under the treaties with Mexico are so en- 
 titled. But no person under guardianship, non 
 compos mentis, or convicted of treason, felony, or 
 bribery, may vote, unless restored to civil rights. 
 
 The Legislative Power. — The Council is 
 composed of thirteen members, elected by the 
 people of the districts into which the territory is 
 divided, for the term of two years. 
 
 The House of Bepresentatives consists of 
 twenty-six members, elected by the people of the 
 districts into which the territory is divided, for 
 the term of one year. The two houses have 
 power to legislate on all subjects of legislation 
 not inconsistent with the laws and constitution 
 of the United States. No laws may interfere with 
 the primitive disposition of the soil. No tax may 
 be levied of United States property. Property 
 of non-residents may not be taxed higher than 
 that of residents. No bank maybe incorporated 
 and no debt incurred by the territory. 
 
 The ExECtTTivB Power. — The Governor is ap- 
 pointed by the president of the United States, by 
 and with the advice and consent of the senate, 
 for four years, but he may be sooner removed. 
 He must reside in the territory. He is com- 
 mander-in-chief of the military of the terri- 
 tory ; is superintendent of Indian aifairs, is to 
 approve all acts passed by the legislature before 
 they can become laws ; may grant pardons and 
 remit fines for oflFences against the laws of the 
 territory, and reprieves for oflences against the 
 laws of the United States till the will of the 
 president can be known ; must take care that 
 the laws be executed. 
 
 A Secretary of the Territory is also appointed 
 in the same manner and for the same time. He 
 is to record and preserve laws passed by the 
 legislature, and acts done by the governor, in 
 his executive capacity, and to transmit copies, 
 etc. 
 
 The JuDioiAL Power. — The Supreme Court 
 consists of a chief and two assistant justices, ap- 
 pointed by the president of the United States, 
 with the advice and consent of the senate, for 
 the term of four years. Two of the three judges 
 constitute a quorum. The jurisdiction is appel- 
 late solely, and extends to all matters of appeal 
 and writs of error .that may be taken from the 
 
 judgments or decrees of the district courts In 
 cases of errors apparent on the face of the' re- 
 cord. 
 
 Special terms may be called by the chief iua. 
 tice for the hearing of causes in both civil and 
 criminal matters, when the parties or the ac- 
 cused, and the district attorney, agree. No jurr 
 trials are held by this court. An appeal lies to 
 the supreme court of the United States as from 
 a decision of the United States circuit court 
 where the amount involved exceeds the sum of 
 one thousand dollars. 
 
 The District Court is held in each of the three 
 districts into which the territory is divided for 
 th&,purpose, by one of the judges of the supreme 
 court. 
 
 It has exclusive original jurisdiction of all mat- 
 ters at law or in equity, except those of which 
 justices of the peace have concurrent jurisdic- 
 tion, and of all crimes and misdemeanors, except 
 those of which justices of the peace have exclu- 
 slve cognizance. 
 
 Probate Cq/urts are also to be provided for bj 
 law. They have, in general, the control of the 
 settlement of the estates of decedents, and the 
 appointment and control of guardians. 
 
 Justices of the Peace have a jurisdiction coex- 
 tensive with the county of all civil cases where 
 the amount involved does not exceed one hun- 
 dred dollars, except in actions for slander, lihel, 
 and false imprisonment, or where the title or 
 boundary of lands shall come in question. Act. 
 1876, ch. 27. 
 
 An Attorney and a Marshal are also ap- 
 pointed, for four years, by the president and 
 senate, and are subject to removal by them, 
 
 NETW PROMISE. A contract made 
 after the original promise has, for some cause, 
 been rendered invalid, by which the promisor 
 agrees to fulfil such original promise. 
 
 NEW TRIAL. In Practice. Are-ex- 
 amination of an issue in fact, before a court 
 and a jury, which has been tried at least once 
 before the same court ; Hilliard, N. Tr. § 1. A 
 re-hearing of the legal rights of the parties, 
 upon disputed facts, before another jury, 
 granted by the court on motion of the party 
 dissatisfied with the result of the previoBS 
 trial, upon a proper case being presented for 
 the purpose; 4 Chitty, Gen. Pr. 30; 26rali. 
 & W, N. Tr. 82. It is either upon the same, 
 or different, or additional evidence, before a 
 new jury, and probably, but not necessarily, 
 before a different judge. 
 
 The origin of the practice of granting new 
 trials is of extremely ancient date, and, con- 
 sequently, involved in some obscurity. Black- 
 stone gives the most connected and satisfac- 
 tory account of it of any writer ; 3 Bla. Com. 
 387, 388. 
 
 Courts have, in general, a discretionary 
 power to grant or refuse new trials, according 
 to the exigency of each particular case, upon 
 principles of substantial justice and equity; 1 
 iBurr. 390. This discretion is generally i^t 
 reviewable on error ; 10 Vt. 520 ; 14 N. H. 
 441; 20 Pick. 285; 10 Ga. 93. But see 4 
 Mo. 86; 160 Mo. St. 328. , 
 
 The usual grounds for a new trial may oe 
 enumerated as follows : — 
 
 The not giving the defendant suff.cient no- 
 tice of the time and place of trial, ""' 
 
NEW TRIAL 
 
 291 
 
 NEW TRIAL 
 
 ■waived by an appearance and makinw de- 
 fence, will be a ground for setting aside the 
 verdict ; 3 Price, 72 ; 1 Wend. 22. But to 
 have this effect the defendant's ignorance of 
 the trial must not have been owing to his own 
 negligence, and the insufficiency of the notice 
 must have been reasonably calculated to mis- 
 lead him; 7 Term, 59; 2 Bibb, 177; 3 B. & 
 P. 1 ; 3 Price, 72 ; 13 Tex. 516 ; 32 Conn. 402 ; 
 36 N. H. 74. 
 
 Mistakes or omissions of officers in sum- 
 moning and drawing jurors, when the irregu- 
 lairity deprives the party complaining of a 
 substantial right, will entitle him to a new 
 trial; 2 Halst. 244; 16 Ark. 37; 12 Pick. 
 496. Likewise, where the officer summoning 
 the jury is nearly related to one of the par- 
 ties ; 10 S. & R. 334 ; 1 South. 364 ; 20 Tex. 
 234; 1 Dev. & B. 196; or is interested in 
 the event ; 5 Johns. 133 ; unless the ob- 
 jection to the officer was waived by the party; 
 
 3 Me. 215; 21 Pick. 457; or the authority 
 of the officer be so circumscribed as to put it 
 out of his power to select an improper jury ; 
 7 Ala. 253 ; 7 Cow. 720. And the verdict 
 will be set aside for the following causes : the 
 unauthorized interference of a party, or his 
 attorney, or the court, in selecting or return- 
 ing jurors, — unless the interference can be 
 satisfactorily explained; 8 Humphr. 412; 
 that a juror not regularly summoned and re- 
 turned personated another ; Barnes, 455 ; 7 
 Dowl. & R. 684 ; but not if the juror perso- 
 nated another through mistake, was quali6ed 
 in other respects, and no injustice has been 
 done; 12 East, 229. See Mistrial. That 
 a juror sat on the trial after being challenged 
 and set aside, — unless the party complaining 
 knew of it, and did not object; 3 Yeates, 
 318; that a juror was discharged without any 
 sufficient reason, after being sworn ; 1 Ohio 
 St. 66 ; but not if the juror was discharged 
 by mistake and with the knowledge and ac- 
 quiescence of the party ; 9 Mete. Mass. 572 ; 
 5 Ired. 58 ; that the jury were not sworn, or 
 that the oath was not administered in the form 
 prescribed by law; 1 How. 497 ; 2 Me. 270. 
 
 The disqualification of jurors, if it has 
 not been waived, will be ground for a new 
 trial ; as, the want of a property qualification, 
 
 4 Term, 473 ; 15 Vt. 61 ; relationship to one 
 of the parties; 32 Me. 310; unless the rela- 
 tionship be so remote as to render it highly 
 improbable that it could have had any influ- 
 ence ; 12 "Vt. 661 ; interest in the event ; 2 
 Johns. 194; 21 N. H. 438; conscientious 
 scruples against finding a verdict of guilty ; 1 3 
 N. H.5g6; 16 Ohio, 364; 13 Wend. 351 ; 
 mental or bodily disease unfitting jurors for 
 the intelligent performance of their duties ; 6 
 Humphr. 59 ; 8 111. 368 ; alienage ; 6 Johns. 
 332 ; 2 111. 476. But see 8 111. 202 ; 4 Dall. 
 363. 
 
 When indirect measures have been resorted 
 to^ to prejudice the jury, or tricks practised or 
 disingenuous attempts made to suppress or 
 stifle evidence or thwart the proceedings, or 
 to obtain an unconscionable advantage, they 
 
 will be defeated by granting a new trial. For 
 example : where papers material on the point 
 in issue, not previously submitted, are surrep- 
 titiously handed to the jury; Cas. temp. Hardw. 
 116; 2 Yeates, 273; or where the party, or 
 some one in his behalf, directly approaches 
 the jury on the subject of the trial ; 7 S. & R. 
 458 ; 13 Mass. 218. But if the other party 
 is aware of such attempts, and neglects to cor- 
 rect them when in his power, he will be deemed 
 to have waived all objection ; 11 Mod. 118. 
 If the interference with the jury comes from 
 a stranger, be without fault in the jury, and 
 without the knowledge of the parties, and no 
 injury has thereby ensued, the verdict will 
 not be disturbed; 5 Mo. 525; 3 Bibb, 8; 11 
 Humphr. 169, 491. But see 9 Miss. 187 ; 16 
 id. 465; 20 id. 398. Where the jury, after 
 retiring to deliberate, examine witnesses in 
 the case, a new trial will be granted; Cro. 
 Eliz. 189; 2 Bay, 94; 1 Brev. 16; so, also, 
 when oneof their numbercommunicates to his 
 fellows private information possessed by him, 
 which influences the finding; 1 Sid. 235; 1 
 Swan, 61 ; 2 Yeates, 166 ; 4 Yerg. Ul ; or 
 the judge addresses a note to them, or pri- 
 vately visits them, after they have retired to 
 deliberate; 1 Pick. 337; 10 Johns. 238; 13 
 id. 487. 
 
 Misconduct of the jury will sometimes 
 avoid the verdict ; as, for example, jurors bet- 
 ting as to the result ; 4 Yerg. Ill; sleeping 
 during the trial ; 8 111. 368 ; unauthorized 
 separation ; 1 Va. Cas. 271 ; 11 Humphr. 
 502 ; 3 Harr. N. J. 468 ; taking refreshment 
 at the charge of the prevailing party; 1 
 Ventr. 124; 4 Wash. C. C. 32; drinking 
 spirituous liquor ; 4 Cow. 17, 26; lid. 562; 
 4 Harr. 367 ; 1 Hill, 207; talking to stran- 
 gers on the subject of the trial ; 3 Day, 223 ; 
 9 Humphr. 646 ; determining the verdict by 
 a resort to chance ; 15 Johns. 87; 8 Blackf. 
 32 ; see Lot. But every irregularity which 
 would subject jurors to censure will not over- 
 turn the verdict, unless there be some reason 
 to suspect that it may have had an influence 
 on the final result. In general, if it does not 
 appear that the misconduct was occasioned by 
 the prevailing party or any one in his behalf, 
 does not indicate any improper bias, and the 
 court cannot see that it either had or might 
 have had an effect unfavorable to the party 
 moving for a new trial, the verdict will not be 
 disturbed. Where, however, the misconduct 
 of the jury amounts to a gross deviation from 
 duty, decency, and order, a, new trial will 
 sometimes be granted, on grounds of public 
 policy, without inquiring whether or not any 
 injury has been sustained in that particular 
 cese; Hilliard, New T. 198. ' 
 
 Error of the judge will be ground for a 
 new trial; such as, admitting illegal evi- 
 dence which has been objected to, — unless 
 the illegal evidence was wholly immaterial, or 
 it is certain that no injustice has been done ; 
 and where the illegal testimony was ad- 
 mitted in gross violation of the well-settled 
 principles which govern proof, it has been 
 
NEW TRIAL 
 
 292 
 
 NEW TRIAL 
 
 AeemeA per se ground for a new trial, not 
 withstanding the jury were directed to disre- 
 gard if, 13 Johns. 350; 15 id. 239; but see 
 6 N. H. 333 ; improperly rejecting evidence 
 tending in any degree to aid the jury in de- 
 termining a material fact; 3 J. J. Marsh. 
 229 ; withdrawing testimony once legally be- 
 fore the jury, — unless the excluded testimony 
 could not be used on a second trial ; 4 
 Humphr. 22 ; denying to a party the right to 
 be heard through counsel ; 2 Bibb, 76 ; 3 A. 
 K. Marsh. 465 ; erroneously refusing to grant 
 a nonsuit ; 19 Johns. 154 ; improperly re- 
 stricting the examination or cross-examination 
 of witnesses, or allowing too great latitude in 
 that respect, under circumstances which con- 
 stitute a clear case of abuse ; 6 Barb. 383 ; 4 
 Edw. Ch. 621 ; refusing to permit a witness 
 to refer to documents to refresh his memory, 
 where by the denial, the complaining party 
 has sustained injury ; 3 Litt. 338 ; improperly 
 refusing an adjournment, whereby injustice 
 has been done; 2 South. 518; 9 Ga. 121; 
 refusing to give such instructions to the jury 
 as properly arise in the case, where it is mani- 
 fest that the jury erred through want of in- 
 struction ; 4 Ohio, 389 ; 1 Mo. 68 ; 9 id. 305 ; 
 giving to the jury binding instructions, when 
 there are circumstances in the case which 
 ought to have been submitted to them,- — un- 
 less the verdict is in strict accordance with 
 the weight of evidence ; 19 Wend. 402; 5 
 Humphr. 476 ; giving an erroneous exposi- 
 tion of the law on a point material to the is- 
 sue, — unless it is certain that no injustice has 
 been done, or the amount in dispute is very 
 trifling, so that the injury is scarcely appre- 
 ciable ; 4 Conn. 356; 5 Sandf. 180; 3 Johns. 
 239; misleading the jury by a charge which 
 is not explicit, or which is absurd and im- 
 possible, or contradictory, or argumentative 
 and evasive; 9 Humphr. Tenn. 411 ; 11 Wend. 
 83 ; 6 Cow. 682 ; erroneous instruction as to 
 the proof that is requisite; 3 Bibb, 481; 21 
 Me. 20; misapprehension of the judgeias to 
 a material fact, and a direction to the jury ac- 
 cordingly, whereby they are misled ; 1 Mills, 
 200 ; instructing the jury as to the law upon 
 facts which are purely hypothetical, — but not 
 if the charge was correct in point of law, 
 and the result does not show that the jury 
 were misled by the generality of the charge ; 
 8 Ga. 114 ; 2 Ala. n. s. 694 ; submitting as a 
 contested point what has been admitted ; 9 
 Conn. 21 6 ; erroneously leaving to the jury 
 the determination of a question that should 
 have been decided by the court, whereby they 
 have mistaken the law ; charging as to the 
 consequences of the verdict ; 1 Pick. 106 ; 2 
 Graham & W. New Tr. 595-703 ; 3 id. 705- 
 873. 
 
 Surprise, as a ground for setting aside the 
 verdict, is, cautiously allowed. When it is 
 occasioned by the act of the adverse party, 
 or by circumstances out of the knowledge and 
 beyond the control of the party injured by 
 it, this has sometimes been held to constitute 
 jgrounds for relief ; but not when he might 
 
 have been fully informed by the exercise of 
 ordinary diligence ; 6 Halst. 242; although 
 even when the complainant is not entirely 
 free from fault, the court, in cases where 
 great wrong would otherwise be done, will 
 for the sake of promoting justice, grant a new 
 trial. Among the cases of surprise which 
 will justify the interposition of the court may 
 be enumerated the following: the unex- 
 pectedly being summoned and detained as a 
 witness or juror in another court, or sudden 
 and serious illness, which prevents the party 
 from attending at the trial ; 3 T. B. Mour. 
 113 ; 7 id. 59 ; 4 Litt. 1 ; 1 Halst. 344; that 
 the cause was brought on prematurely, in the 
 absence of the party ; 6 Dana, 89 ; erroneous 
 ruling of the court as to the right to begin, 
 which has worked manifest injustice ; 4 Pick. 
 156; but see 8 Conn. 254, 296; perturba- 
 tion of counsel, arising from sudden and dan- 
 gerous sickness occurring in his family and 
 coming to his knowledge during the trial; 14 
 Pick. 494 ; where some unforeseen accident 
 has prevented the attendance of a material 
 witness; 6 Mod. 22; 11 id. 1 ; 2 Salk. 645; 
 1 Harp. 267; that testimony beyond the 
 reach of the party injured, and completely 
 under the control of the opposite party, was 
 not produced at the trial; 7 Yerg. 502; 7 
 Wend. 62 ; that competent testimony was 
 unexpectedly ruled out on the trial ; 9 Dana, 
 26 ; 2 Vt. 573 ; 2 J. J. Marsh. 515 ; where 
 a party's own witnesses, through forgetful- 
 ness, mistake, contumacy, or perjury, testify 
 differently than anticipated, or where evi- 
 dence is unexpectedly sprung upon a party by 
 his opponent; 8 Ga. 136 ; 18 Miss. 326; the 
 withdrawal of a material witness before tes- 
 tifying, attended with suspicions of collusion; 
 25 Wenf. 663 ; that a matertial witness was 
 suddenly deprived of the power of testifying 
 by a paralytic stroke, or other affection, or 
 that the testimony of the witness was inco- 
 herent on account of his being disconcerted 
 at the trial; 1 Root, 175; where it is dis- 
 covered after the trial that a material witness 
 who testified is interested in the event, or 
 where it is probable that the verdict was ob- 
 tained by false testimony, which the party 
 injured could not until after the trial contra- 
 dict or expose; 2 C. B. 342; 3 Bun-. 1771; 
 1 Bingh. 339 ; 1 Me. 322. 
 
 New trials on account of after-discoverei 
 testimony are granted but rarely, and with 
 great caution. The court, in order to set 
 aside the verdict on this ground, must be 
 satisfied that the evidence has come to the 
 applicant's knowledge since the trial ; SStor. 
 C. C. 1 ; 21 N. H. 166; that it is not owing 
 to the want of diligence that it did not come 
 sooner; 6 Johns. Ch. 479 ; 1 Blackf. 367; 
 that it is so material that it will probably 
 produce a difl^erent result; 1 Dudl. 85; aw 
 that it is not cumulative ; 3 Woodb. & M. C. 
 C. 348. Nor must the sole object of the 
 newly discovered evidence be to impeachw'' 
 nesses examined on the former trial ; 7 Barb. 
 271 ; U id. 216 ; 8 Gratt. 637. The moving 
 
NEW TRIAL 
 
 293 
 
 NEW TRIAL 
 
 party must state what the evidence is, and 
 ■what diligence he has used in the preparation 
 of his case ; and his application must be ac- 
 companied by the affidavits of the newly-dis- 
 covered witness, unless some cause be shown 
 why they cannot be produced ; 5 Halst. 250 ; 
 1 Tyl. Vt. 441 ; 22 ke. 246. 
 
 Excessive damages may be good cause for 
 granting a new trial ; first, where the mea^ 
 sure of damages is governed by fixed rules 
 and principles, as in actions on contracts, or 
 for torts to property the value of which may 
 be ascertained by evidence ; second, in suits 
 for personal injuries where, although there 
 is no fixed criterion for assessing the damages, 
 yet it is clear that the jury acted from passion, 
 partiality, or corruption ; 10 Ga. 37. In ac- 
 tions for personal torts, a new trial will not, 
 in general, be granted on account of the 
 smallness of the damages, unless the verdict 
 is the result of contrivance by the defendant, 
 or surprise on the plaintiff", or of partiality or 
 misconduct of the jury, or unless the finding 
 is entirely disproportioned to the injury. 
 Where the verdict is for an amount exceeding 
 the damages laid in the writ, it will be set 
 aside unless the plaintiiF will release the ex- 
 cess; 7 Wend. 330. 
 
 When the verdict is clearly against law, it 
 will be set aside notwithstanding the jury had 
 power to decide both the law and the fact, or 
 the issue was one exclusively of fact and there 
 have been concurrent verdicts by two succes- 
 sive juries; Dudl. 213 ; 4 Ga. 193. If, how- 
 ever, substantial justice has been done, a new 
 trial will not be granted though the law aris- 
 ing on the evidence would have justified a 
 different result ; 1 Burr. 54 ; 4 Term, 468. 
 
 Courts are at all times_ reluctant to grant a 
 new trial on the ground that the verdict is 
 against evidence; and where the jury have 
 passed upon a mere question of fact, they 
 will only do so when the verdict is palpably 
 against the evidence : injustice must have 
 been done by the verdict, and there must be 
 a probability that justice will be done on re- 
 trial; 21 Conn. 245; 5 Ohio, 509 ; 3 Strobh. 
 358. Where the verdict is founded on cir- 
 cumstantial evidence, the court will rarely, if 
 ever, interfere with it ; 16 Mass. 345 ; 11 111. 
 36. On the other hand, when the issue ap- 
 proximates to a purely legal question, courts 
 are somewhat more liberal in granting new 
 trials; 2 M'MuU. 44. The verdict will be 
 set aside where the witnesses upon whose tes- 
 timony it was obtained have since the trial 
 been convicted of perjury ; 3 Dougl. 24 ; so 
 where the testimony on which the verdict is 
 founded derives its credit from circumstances, 
 and those circumstances are afterwards clearly 
 falsified by affidavit ; 1 B. & P. 427 ; 3 Grab. 
 & W. N. Tr. 1203-1374. 
 
 The verdict may be void for obscurity or 
 uncertainty ; 1 S. & R. 367. It will be set 
 aside where it is not responsive to the issue, 
 or does not comprehend all of the issues un- 
 less the finding of one or more of the issues 
 will be decisive of the cause ; 2 Ala. u. s. 
 
 359 ; 11 Pick. 45. That it was not recorded 
 in open court, or was received in the absence 
 of the plaintiff", or was altered after it was re- 
 corded and the jury dismissed, will be 
 ground for a new trial ; 1 111. 109 ; 1 Wend. 
 36 ; 16 S. & R. 414. If rendered on Sun- 
 day, it Aiiill, in general, be void ; but there are 
 many instances in which verdicts have been 
 sustained though rendered on that day ; 1 
 South. 156 ; 15 Johns. 119 ; 3 Watts, 56 ; 13 
 Ohio, 490. 
 
 Courts of equity have always proceeded 
 with great caution in awarding new trials at 
 law. At the present day they are but seldom 
 applied to for this purpose, as courts of law 
 are liberal in exercising the same jurisdiction, 
 and it has been held to be unconscionable and 
 vexatious to bring into courts of equity a 
 discussion which might have been had at law ; 
 1 Sch. & L. 201. But, in general, when it 
 would have been proper for a court of law to 
 have granted a new trial if the application had 
 been made while that court had the power, it 
 is equally proper for a court of equity to do 
 so if the application be made on grounds 
 arising after the court of law can no longer 
 act; 1 A. K. Marsh. 237. A court of equity 
 will not grant a new trial at law to enable a 
 party to impeach a witness, or because the 
 verdict is against evidence ; 1 Johns. Ch. 432. 
 It will only interpose in cases of newly-dis- 
 covered evidence, surprise, fraud, or the like, 
 where the party is deprived of the means of 
 defence by circumstances beyond his control ; 
 
 1 Litt. 140; 2 Bibb, 241; 2 Hawks, 605; 
 WiUard, Eq. Jur. 357 ; 3 Grab. & W. N. Tr. 
 1455-1580. 
 
 A court of equity will often grant a second, 
 and sometimes a third, fourth, and even fifth 
 trial of a feigned issue, in cases where a court 
 of law would not disturb a first verdict ; 1 
 Edw. Ch. 96. This arises, from the consider- 
 ation that the responsibility of the decision 
 rests upon the judge in equity ; 3 Grab. & W. 
 N. Tr. 1570, 1571. 
 
 New trials may be granted in criminal as 
 well as in civil cases, at the solicitation of the 
 defendant, when he is convicted even of the 
 highest offences. But a person once lawfully 
 convicted on a sufficient indictment can never 
 after, against his consent, be a second time 
 put in peril for the same oflTence, unless the 
 former conviction v^as instituted by the fraudu- 
 lent procurement of the defendant with a view 
 to shield himself from adequate punishment ; 
 
 2 Grab. & W. N. Tr. 61-84. Where the ac- 
 cused has been acquitted, and his acquittal has 
 not been procured by his own fraud or evil 
 practice, the law, mingling justice with mercy 
 infavorem vitoe et libertatis, does not permit 
 a new trial; 16 Conn. 54. In civil actions 
 for the recovery of penalties, and in some 
 cases where the form of proceeding is crimi- 
 nal, if the object be only to establish a civil 
 right, as in cases of quo warranto and the like, 
 new trials may be granted even after acquittal. 
 But, in s\ich cases, when the verdict is for the 
 defendant it will not, in general, be disturbed 
 
NEW YORK 
 
 294 
 
 NEW YORK 
 
 unless some rule of law be violated in the ad- 
 mission or rejection of evidence or in the 
 charge of the court to the jury ; 4 Term, 753 ; 
 2 Cow. 811 ; 2 Graham & W. New Tr. 61. 
 See Graham & Waterman, and Hilliard on 
 New Trials. 
 
 NEW YORK. The name of o«te of the 
 original states of the United States of 
 America. 
 
 In its colonial condition this state was gov- 
 erned 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. 
 
 There have been three constitutions adopted 
 by the state since its colonial period : one in 
 1777, which remained in force until January 1, 
 1823, when the second went into operation. This 
 second constitution remained until January 1, 
 1847, when the present constitution, which was 
 adopted by a convention of the people at Albany, 
 went into force. This last constitution has since 
 been amended in certain particulars. See 1 
 Bev. St. of N. T. 83. 
 
 The qualifications of the electors are thus de- 
 scribed, namely : " Every male citizen of the age 
 of twenty-one years, who shall have been a citi- 
 zen 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, and 
 for the last thirty days a resident of the election 
 district in which he may oifer his vote, shall be 
 entitled to vote at such election in the election 
 district of which he shall at the time be a resi- 
 dent, and not elsewhere, for all officers that now 
 are or hereafter may be elective by the people, 
 and upon all questions which may be submitted 
 to the vote of the people. 
 
 The Legislative Poweb.— This Is lodged in 
 a senate and assembly. 
 
 The Senate consists of thirty-two members, 
 chosen, one for each senatorial district, for the 
 term of two years, by the electors of the dis- 
 trict. 
 
 • The Assemily consists of one hundred and 
 twenty-eight members, elected, one from each of 
 the assembly districts, for the term of one year, 
 by the people. A certain number of members is 
 elected from each county, according to an ap- 
 portionment by the legislature, and each county, 
 except Hamilton, is to be always entitled to one 
 member. The counties entitled to more than 
 one member are divided into districts, each of 
 which elects one member of the assembly. The 
 allotment and division are to be revised after 
 each census. No town is to be divided in form- 
 ing assembly districts. The districts must con- 
 tain, as nearly as possible, an equal number of 
 Inhabitants, excluding aliens. No member of 
 the legislature can receive any civil appointment 
 within the state, or to the senate of the United 
 States, from the governor, or the governor and 
 senate, or governor and legislature, during the 
 term for which he was elected, or from any city 
 goverment. 
 
 The constitution contains the usual provisions 
 for organization of the legislature ; making each 
 house judge of the qualifications of members ; 
 giving it power to regulate their conduct; to 
 choose its own officers; for the keeping and publi- 
 cation of a record of proceedings ; for open ses- 
 sions ; freedom of debate ; preventing one house 
 from adjourning without the consent of the 
 other. Local bills are not to be passed in certain 
 
 cases. Art. iii. § 18. Corporations may bs 
 formed by the legislature, but only under eene- 
 ral laws, except in cases wherein. In the ?ua» 
 ment of the legislature, the objects of the m. 
 poration cannot be attained under general laws' 
 Special charters may not be granted to banks 
 but they may be formed under general laws. ' 
 
 The Executive Poweb.— The Governor ii 
 elected biennially, for the term of three years by 
 the people, or by the legislature in consequence 
 of a failure to elect by the people. The governor 
 must be a citizen of the United States, thirty 
 years old at least, and have been for five years 
 next preceding his election a resident within the 
 state. He is commander-in-chief of the military 
 and naval forces of the state ; has power to con- 
 vene the legislature (or the senate only) on ex- 
 traordinary occasions, during which sessions no 
 subjects may be acted upon except those recom- 
 mended by the governor for consideration, com- 
 municates by message to the legislature, at every 
 session, the . condition of the state, and recom- 
 mends such matters to them as he judges expe- 
 dient ; transacts all necessary business with the 
 officers of the government, civil and military : 
 is to take care that the laws are faithfully exe- 
 cuted ; has the power to grant reprieves, com- 
 mutations, and pardons after conviction, for ifl! 
 offences except treason and cases of impeach- 
 ment, upon such conditions and with such re- 
 strictions and limitations as he may think pro- 
 per, subject to such regulations as may be pro- 
 vided by law relative to the manner of applying 
 for pardons. Upon conviction for treason, he 
 has powfer to suspend the execution of the sen- 
 tence until the case is reported to the legislature 
 at its next meeting, when the legislature either 
 pardons or commutes the sentence, directs the 
 execution of the sentence, or grants a further re- 
 prieve. He must annually communicate to the 
 legislature each case of reprieve, commntation, 
 or pardon granted, stating the name of the con- 
 vict, the crime of which he was convicted; the 
 sentence and its date, and the date of the com- 
 mutation, pardon, or reprieve. He has the veto 
 power, but a bill may be passed over his veto by 
 a vote of .two-thirds of both houses. 
 
 The Lieutenant- Governor is elected at the same 
 time, for the same term, and must possess the 
 same qualifications, as the governor. He it pre- 
 sident of the senate, — with only a casting vote 
 therein. In case of the impeachment of the gov- 
 ernor, of his removal from office, death, ina- 
 bility to discharge the powers and duties of the 
 said office, resignation, or absence from the state, 
 the powers and duties of the office devolve upon 
 the lieutenant-governor for the residue of the 
 term or until the disability ceases. But when 
 the governor, with the consent of the legislature, 
 is out of the state in time of war, at the head of 
 a military force thereof, he continues comman- 
 der-in-chief of all the military force of thestate. 
 If during the vacancy of the office of governor 
 the lieutenant-governor is impeached, displaced, 
 resigns, dies, or becomes incapable of perform- 
 ing the duties of his office, or is absent from the 
 state, the president of the senate acts as governor 
 until the vacancy is filled or the disability 
 ceases. 
 
 A Secretary of State, a OomptroUer, a T«i»- 
 surer, an Attorney- General, and a State Engineer 
 and Surveyor are elected by the people bien- 
 nially, for the term of two years each. 
 
 The Judicial 'Po-WETt.—Tbe Court of Appeatt 
 consists of seven judges, the chief judge and six 
 associate judges, who are chosen by the electore 
 of the state for the term of fourteen years, ttom 
 
NEW YORK 
 
 295 
 
 NEW YORK 
 
 and including the first day of January next after 
 their election. Five members of the court form 
 a quorum, and the concurrence of four is neces- 
 sary to a decision. It exercises an appellate ju- 
 risdiction for the correction of errors at law and 
 in equity. It has exclusive jurisdiction to review 
 upon appeal every act or determination (7 Barb. 
 N. Y. 581 ; 1 N. Y. 428) made at a general term 
 by the supreme court, or by the supreme court 
 of the city of New York, or by the court of com- 
 mon pleas of the city and county of New York, 
 in a judgment in an action' of contract tried 
 therein or brought there from another court, and, 
 upon the appeal from such judgment, to review 
 any intermediate order involving the merits and 
 necessarily affecting the judgment; (2 N. Y.4:16- 
 566) in an order affecting a substantial right 
 made in such action, when such order in effect 
 determines the action and prevents a judgment 
 from which an appeal might be taken ; 1 N. Y. 
 188, 228, 423, 534 ; in a final order affecting a 
 substantial right made in a special proceeding or 
 upon a summary application in an action after 
 judgment. But such appeal is not allowed in an 
 action originally commenced in a cojirt of a jus- 
 tice of the peace, or in the marine court of the 
 city of New York, or in a justice's court in the 
 state ; Code of Proc. tit. ii. 
 
 The Supreme Court is composed of thirty- four 
 judges ; five of the judges reside in New York, 
 five in the second judicial district, and four in 
 each of the other districts into which the state is 
 divided. The legislature may alter the districts 
 without increasing their numbers, once after 
 every enumeration of the inhabitants of the state. 
 It has general jurisdiction in law and equity sub- 
 ject to such appellate jurisdiction of the court of 
 appeals as is now or may be prescribed by law. 
 
 The Court of Oyer and Terminer is composed in 
 each county of a justice of the supreme court, 
 the county judge, and two justices of the peace, 
 elected for the purpose for the term of two years 
 by the people of the county. The supreme judge 
 and any two of the others constitute a quorum. 
 In the city and county of New York the court is 
 composed of a judge of the superior court and 
 any two of the following : the judges of the 
 court of common pleas, the mayor, recorder, or 
 aldermen. It is to inquire into all crimes and 
 misdemeanors committed or triable in the county, 
 to hear and determine all such, and to deliver the 
 jails of all prisoners according to law. 
 
 A Court of Sessions, more fully described as the 
 court of general sessions of the peace, is held in 
 each county by thecountyjudgeandtwo justices 
 of the peace ; the former must designate the terms 
 at which a jury is to be drawn. This court is to 
 inquire into all the crimes and misdemeanors 
 committed or triable in the county, and to hear, 
 determine, and punish according to law all 
 crimes and misdemeanors not punishable with 
 death or imprisonment in state prison for life. 
 
 Cownty Courts are held in each county, by a 
 single judge, elected by the people for the term 
 of six years. They have original civil jurisdic- 
 tion only in cases where the defendants reside in 
 the county, in which cases money or personal 
 property not exceeding one thousand dollars in 
 amount is demanded, for the foreclosure of 
 mortgages on real estate, and the collection of 
 the balance due after sale of the property, parti- 
 tion of real estate in the county, admeasurement 
 of dower, management of the property of in- 
 fants, mortgage and sale of the property of re- 
 ligious corporations, and such other original juris- 
 diction as the legislature may confer upon them. 
 They have also supervision of, and an appellate 
 jurisdiction from, the decisions of justices of the 
 peace. The county judge acts also as surrogate 
 
 in counties which have a population of less than 
 forty thousand. 
 
 Mayors' Courts are held in the various cities, 
 with a civil and criminal jurisdiction varying 
 somewhat in the different cities. 
 
 Eeco^-clers' Courts are held In Utica and 
 Oswego. 
 
 Justices of the Peace are elected in each town 
 and certain cities and villages of New York, for 
 the term of four years, in number and classes as 
 directed by law. 
 
 The Justices' Cottrts of the various cities have 
 jurisdiction in cases under the charters and by- 
 laws where the penalty does not exceed one hun- 
 dred dollars. It also extends to one hundred 
 dollars, and, on confession of judgment, to two 
 hundred and fifty dollars, with the exception of 
 certain actions where the people are concerned, 
 and where the title to land comes in question, 
 and actions for an assault and battel?, false im- 
 prisonment, libel, slander, malicious prosecution, 
 criminal conversation, and seduction, and mat- 
 ters of account where the sum total of the ac- 
 counts exceeds four hundred dollars, and actions 
 against an executor or administrator. There are 
 also justices' courts of Albany and Troy, and 
 district courts of New York city, and the muni- 
 cipal court of the city of Rochester. 
 
 A Surrogate, whose term of ofiBce is the same 
 as that of the county judge, is elected in each 
 county having a population of more than forty 
 thousand inhabitants : having less than that popu- 
 lation, the county judge discharges the duties oi 
 the surrogate. The Code of Procedure does not 
 apply to matters testamentary and of intestacy ; 
 and hence the rules of evidence and practice in 
 the surrogates' courts are the same as formerly ; 
 Will. Executors, 174 et seq. ; 26 Barb. 316. The 
 appeal from the decision of the surrogate is to 
 the supreme court, and from that court to the 
 court of appeals. The former jurisdiction oi 
 the court of probate is vested in the surrogates, 
 subject to appeal as aforesaid. 
 
 The Superior Court of New York City is com- 
 posed of six judges, elected by the people, oi 
 whom one is selected by his associates as chiel 
 justice. It has jurisdiction of actions for the re- 
 covery of real property or an interest or estate 
 therein ; for the foreclosure of personal-property 
 mortgages ; for recovery of personal property 
 distrained; for recovery of forfeitures imposed 
 by statute ; against an oflScer or person appointed 
 by him for acts done in virtue of said office or 
 appointment, where the cause has arisen or the 
 property is situated in said city ; and of all other 
 actions where all the defendants reside or are 
 personally served with summons within the city, 
 and of actions against corporations having theit 
 place of business in the city ; such further crimi- 
 nal and civil jurisdiction as may be conferred by 
 law. There are also, the court of common pleas 
 of the city and county of New York, the city 
 court of Brooklyn, the superior court of Buffalo, 
 and the city court of Yonkers. 
 
 The Court of Common Pleas for the City and 
 County of New York is composed of three judges, 
 elected by the people. It has the same jurisdic- 
 tion as the superior court within its limits, and, 
 in addition, has power to review the judgments 
 of the marine court of New York city, and oi 
 justices in that city. 
 
 The Marine Court of the City of New York has 
 the jurisdiction of justices of the peace, and also 
 of actions arising under the charter or by-laws 
 of New York city where the penalty is more than 
 twenty-five and less than one hundred dollars : 
 actions of contract for services rendered on board 
 a vessel on the high seas, where the state courts 
 have jurisdiction, though the damage exceeds 
 
NEWLY DISCOVERED EVIDENCE 296 
 
 NEXUM 
 
 one hundred dollars. But no admiralty powers 
 are given. 
 
 All the changes produced by the Code of Pro- 
 cedure cannot be noticed in so brief an article. 
 The prominent ones are : 1. The abolition of the 
 distinction between law and equity, accoi'ding to 
 the constitution, and the adoption of a new sys- 
 tem of pleading applicable to all remedies. 
 Code, § 140. a. The abolition of the rule with 
 respect to interest as a ground of exclusion of 
 wit^sses. Code, § 398. 3. The abolition of all 
 bills of discovery, and allowing parties to the 
 action to be examined as witnesses for and 
 against each other. Code, § 389, as amended in 
 1859, Stat, of 1859, p. 970. 4. Requiring the 
 real parties in interest to be the parties to the 
 action. Code, § 111. 5. Preventing an action 
 from abating by the death, marriage, or other 
 disability of a party, or by any transfer of in- 
 terest If the cause of action survive, and allow- 
 ing the action to be continued in the name of the 
 party in interest. Code, 131. 6. Providing as a 
 substitute for voluntary and compulsory refer- 
 ences''eithef of all or any of the issues of law or 
 fact, or both, to one, or not exceeding three, 
 referees. Code, 270-373. 
 
 The constitution provides for tribunals of con- 
 ciliation. A court of arbitration is established 
 by two acts, in which power ia given to the 
 chamber of commerce, of the city of New York, 
 upon voluntary submission by the parties, either 
 in writing or otherwise, to settle controversies 
 and differences upon any mercantile or commer- 
 cial subject. Ch. 378, Laws of 1874 ; and ch. 
 495, Laws of 1875. 
 
 NEWLY DISCOVERED EVIDENCE. 
 In Practice. Proof of some new and ma- 
 terial fact in the case, which has been ascer- 
 tained since the verdict. 
 
 The discovery of such evidence will afford 
 a ground for a new trial ; but courts only in- 
 terfere with verdicts for this cause under very 
 special circumstances. 
 
 To entitle the party to relief, certain well- 
 defined conditions are indispensable. It is a 
 rule subject to rare exceptions, and applied 
 perhaps with more stringency in criminal than 
 in civil cases, that the sole object of the new 
 evidence must not be to impeach or contradict 
 witnesses sworn on the former trial ; 7 Barb. 
 271 ; 8 Gratt. 637 ; it must not merely mul- 
 tiply testimony to any one or more of the facts 
 already investigated, but must bring to light 
 some new and independent truth of a different 
 character ; 3 W. & M. 348 ; 1 Sumn. 441 ; 
 6 Piclc. 114; 10 id. 16; 2 Gaines, 129; 8 
 Johns. 84 ; 15 id. 210 ; 4 Wend. 579 ; 7 W. 
 & S. 415 ; 5 Ohio, 375 ; 11 id. 147 ; 4 Halst. 
 228 ; 1 Green, 177 ; 8 Vt. 72 ; 1 A. K. Marsh. 
 151 ; 3 tW. 104 ; it must be to a point before 
 in issue, and be so material as to impress the 
 court with the belief that if a new trial were 
 granted the result would probably be dif- 
 ferent; Dudl. 85; 3 Huraphr. 222; it must 
 not have been known to the party until after 
 the trial ; 3 Stor. 1 ; 2 Sumn. 19 ; 2 N. li. 
 166 ; and the least fault in not procuring and 
 using it at the trial must not be imputable to 
 him; 6 Johns. Ch. 482; 1 Blackf. 367; 5 
 Halst. 250; 7 id. 225; 1 Mo. 49; 11 Conn. 
 15; 10 Me. 218; 20 id. 24S ; 14Vt. 415; 7 
 Mete. 748 ; 3 Grab. & W. N. Tr. 1015-1112. 
 See Niiw Trial. 
 
 NEV7SPAPERS. Papers for conveyioB 
 news, printed and distributed periodically, 
 
 NEXI. In Roman Law. Persons bouid 
 (^nexi) ; that is, insolvents, who miglitbeheld 
 in bondage by their creditors until their 
 debts were discharged. Vicat, Voc. Jur ■ 
 Heinecciusj Antiq. Kom. ad Inst. lib. 3 tit' 
 330 ; Calvinus, Lex.; Mackeldey, Civ W 
 § 486 a. ' ' 
 
 NEXT FRIEND. One who, withoot 
 being regularly ajjpointed guardian, acts for 
 the benefit of an infant, married woman, or 
 other person not sui juris. See Proch'ein 
 Ami. 
 
 NEXT OF KIN. This term is used to 
 signify the relations of a party who has died 
 intestate. 
 
 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; 28 How. Pr. 417. The phrase 
 means relation by blood ; 72 N. Y. 312. It 
 has been held, on the other hand, that next of 
 kin in a will means "nearest of kin;" 10 CI. 
 & F. 215 ; 63 N. C. 242. A wife cannot, in 
 general, claim as next of kin of her husband, 
 nor a husband as next of kin of his wife ; 113 
 Mass. 430 ; 4 Ired. Eq. 66. But see 34 Barb. 
 410; 28 Ohio, 192. But when there are cir- 
 cumstances in a will which induce a belief of 
 an intention to include them under this term, 
 they will be so considered, though intheordi- 
 nary sense of the word they are not ; Hoven- 
 den, Fr. 288, 289 ; 1 My. & K. 82; thesame 
 rule holds as to the interpretation of statutes ; 
 25 Alb. L. J. 496. See Legacy; Distbi- 
 BUTioN ; Descent. 
 
 NEXUM (Lat.). In Roman Law. The 
 transfer of the ownership of a thing, or the 
 transfer of a thing to a creditor as a security. 
 
 In one sense nexum includes maneipimii in 
 another sense, maTicipium and nexum are op- 
 posed, iu the same way as sale and mortgage or 
 pledge are opposed. The formal part of botll 
 transactions consisted in a transfer per m it KS- 
 ram. 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 Uberatio, respectively ex- 
 press the contracting and the release from the 
 obligation. 
 
 The Roman law as to the payment of borrowed 
 money was very strict. A curious passage of 
 Gellius (xx. 1) gives iis the ancient mode of 
 legal procedure in the case of debt, as fixed by 
 the Twelve Tables. If the debtor admitted the 
 debt, or had 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 fbemanus injectio, and ultimately 
 to be assigned over to the creditor {addictm) by 
 the sentence of the prsetor. The creditor was 
 required to keep him for sixty days in chains, 
 during which time he publicly exposed the 
 debtor, on three nundinoe, and proclaimed the 
 amount of his debt. If no person released the 
 prisoner by paying the debt, the creditor might 
 sell hipa as a slave or put him to death. If there 
 were several creditors, the letter of the law al- 
 lowed them to cut the debtor in pieces and taKe 
 
NICHILLS 
 
 297 
 
 NIL DEBET 
 
 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 satisiying 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 ad- 
 dieti, which is sometimes alleged as -evidence of 
 the identity of nexus and addiettui, 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 
 nexMS 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 assigned over by a 
 judicial sentence to several creditors, and it pro- 
 vided for a settlement of their conflicting claims. 
 The precise condition of a nexus has, however, 
 been a subject of much discussion among 
 scholars. Smith, Diet. Rom. & Gr. Antiq.; 
 Manoipidm. 
 
 NICHILLS. In English Practice. 
 
 Debts due to the exchequer which the sheriff' 
 could not levy, and as to which he returned 
 nil. These sums were transcribed once a 
 year by the clerk of the nichills, and sent to 
 the treasurer's remembrancer's office, whence 
 process was issued to recover the "nichill" 
 debts. Both of these offices were abolished 
 in 183.S : Manning's Exch. Pr. 321 ; Moz. & 
 W. 
 
 NIECE. The daughter of a brother or 
 sister. Ambl. 514; 1 Jac. 207. See 
 Nephew. 
 
 NIEFB. In Old English Law. A 
 woman born in vassalage. 
 
 NIENT COMPRISE (Law Fr. not in- 
 cluded). An exception taken to a petition 
 because the thing desired is not contfiined in 
 that deed or proceeding whereon the petition 
 is founded. Tomlyn, Law Diet. 
 
 NIENT CULPABLE (Law Fr. not 
 guilty). The name of a plea used to deny 
 any charge of a criminal nature, or of a tort. 
 
 NIENT DEDIRB (Law Fr. to say noth- 
 ing). 
 
 Words used to signify that judgment be 
 rendered against a party because he does not 
 deny the cause of action : i. e. by default. 
 
 When a fair and impartial trial cannot be 
 had in the county where the venue is laid, 
 the practice in the English courts is, on an 
 affidavit of the circumstances, to change it, in 
 transitory actions ; or, in local actions, they 
 will give leave to enter a suggestion on the 
 roll, with a nient dedire, in order to have the 
 trial in another county. 1 Tidd, Pr. 8th ed. 
 655. 
 
 NIENT LE FAIT (Law Fr.). In 
 Pleading. The same as non est factum, a 
 plea by which the defendant asserts that the 
 deed declared upon is not his deed. 
 
 NIGHT. That space of time during 
 which the sun is below the horizon of the 
 earth, except that short space which precedes 
 its rising and follows its setting, during which 
 
 by its light the countenance of a man may be 
 discerned. It is night when there is daylight, 
 crepusculum or diluculum, enough left or be- 
 gun to discern a man's face withal. 1 Hale, 
 PI. Cr. 550 ; 4 Bla. Com. 224 ; Bacon, Abr. 
 Burglary (^D) ; 2Russ. Cr. 32; Kosc. Cr. 
 Ev. 278. 
 
 The common law rule has been modified 
 by statute in some of the states, and by the 
 Stat. 9 Geo. IV. c. 69, the night, for purposes 
 of poaching, was held to begin one hour after 
 sunset, and end one hour before sunrise. By 
 the_ Stat. 24 & 25 Vict. c. 96, the night, 
 during which a burglary may be committed, 
 is deemed to commence at 9 P. M., aijKi end 
 at 6 A. M. ; 4 Steph. Com. 105. 
 
 NIGHT WALKERS. Persons who 
 sleep by day and walk by night, 5 Edw. III. 
 c. 14; that is, persons of suspicious appear- 
 ance and demeanor, who walk by night. In 
 many of the states there are statutes against 
 it; 1 Bish. Cr. L. § 501, n. 
 
 Watchmen may undoubtedly arrest them ; 
 and it is said that private persons may also 
 do so; 2 Hawk. PI. Cr. 120. But see 3 
 Taunt. 14; Hamm. N. P. 135. See 15 
 Viner, Abr. 555; Dane, Abr. Index. 
 
 NIHIL CAPIAT PER BREVE (Lat. 
 that he take nothing by his writ). In Prac- 
 tice. The form of judgment against the 
 plaintiff in an action, either in bar or in 
 abatement. When the plaintiff has com- 
 menced his proceedings by bill, the judgment 
 is nihil capiat per billam. Co. Litt. 363. 
 
 NIHIL DICIT (Lat. he says nothing). 
 The name of the judgment rendered against 
 a defendant who fails to put in a plea or an- 
 swer to the plaintiff's declaration by the day 
 assigned. In such a case, judgment is given 
 against the defendant of course, as he says 
 nothing why it should not. See 15 Viner, 
 Abr. 556 ; Dane, Abr. Index. 
 
 NIHIL HABET (Lat. he has nothing) . 
 The name of a return made by a sheriff, 
 marshal, or other proper officer, to a scire 
 facias or other writ, when he has not been 
 able to serve it on the defendant. 5 Whart. 
 367. 
 
 Two returns of nihil in proceedings in rem 
 are, in general, equivalent to a service, Yelv. 
 112 ; 1 Cow. 70 ; 1 Law Rep. No. C. 491 ; 4 
 Blaekf. 188; 5 S. & R. 211 ; 24 Penn. 491; 
 71 Penn. 81. 
 
 NIL DEBET (Lat. he owes nothing). In 
 Pleading. The general issue in debt on 
 simple contract. It is in the following form : 
 " And the said C D, by E F, his attorney, 
 comes and defends the wrong and injury, 
 when, etc., and says that he does not owe the 
 said sum of money above demanded, or any 
 part thereof, in manner and form as the said 
 A B hath above complained. And of this the 
 said C D puts himself upon the country." 
 When, in debt on specialty, the deed is the 
 only inducement to the action, the general is- 
 sue is nil debet. Steph. PI. 174, n.; 8 Johns. 
 83 ; Dane, Abr. Index. In English practice, 
 
NIL HABUIT IN TENEMENTIS 298 
 
 NOLLE PROSEQUI 
 
 by rule 11, Trinity Term, 1853, the plea oinil 
 debet was abolished ; 2 Chitty, Pi. 275. 
 
 NIL HABUIT IN TENEMENTIS 
 (Lat.). In Pleading. A plea by which the 
 defendant, who is sued by his landlord in debt 
 for rent upon a lease, but by deed indented, 
 denies his landlord's title to the premises, al- 
 lecing that he has no interest in the tenements. 
 2 Lilly, Abr. 214; 12 Viner, Abr. 184; 15 
 id. 556. 
 
 NISI PRITJS (Lat. unless before). In 
 Practice. For the purpose of holding trials 
 by jury. Important words in the writ (venire) 
 directing the sherifl" to summon jurors for the 
 trial of causes depending in the superior 
 courts of law in England, which have come 
 to be adopted, both in England and the United 
 States, to denote those courts or terms of 
 court held for the trial of civil causes with the 
 presence and aid of a jury. 
 
 The origin of the use of the term is to be 
 traced to a period anterior to the institution of 
 the commission of nisipriua in its more modem 
 form. By Magna Charta it was provided that 
 the common pleas should be held in one place, 
 and should not follow the person of the king ; 
 and by another clause, that assizes of novel dis- 
 seisin and of mort d'ancestor, which were the 
 two commonest forms of actions to recover land, 
 should be held in the various counties before the 
 justices in eyre. A practice obtained very early, 
 therefore, in the trial of trifling causes, to con- 
 tinue the cause in the superior court from term 
 to term, provided the justices in eyre did not 
 sooner (nisi justiciarii diu) come into the county 
 where the cause of action arose, in which case 
 they had jurisdiction when they so came. Brac- 
 ton, 1. 3, c. 1, § 11. By the statute of nisi prius, 
 13 Edw. I. c. 30, enforced by 14 Edw. III. c. 16, 
 justices of assize were empowered to try common 
 Issues in trespass and other suits, and return 
 them, when tried, to the superior court, where 
 judgment was given. The clause was tlien left 
 out of the continuance and inserted in the venire, 
 thus : ^^ I^cBcipimus tibi quod venire facias coram 
 justiciaris nostris apud Westm. in Octavis Scti 
 Michtslis, nisi talis et talis^ tali die et locOy ad par- 
 tes illas venerint, duodecini," etc. (we command 
 you that you cause to come before our justices at 
 Westminister, on the octave of Saint Michael, 
 imleas such and such a one, on such a day and 
 place shall come to those parts, twelve, etc.). 
 Under the provisions of 42 Edw. III. c. 11, the 
 clause is omitted from the venire, and the jury is 
 respited in the court above, while the sheriff 
 summons them to appear before the jus- 
 tices, upon a habeas corpora juratorum, or, in the 
 king's bench, a distringas. See Sell. Pr. Introd. 
 Ixv.; 1 Spence, Eq. Jur. 116 ; 3 Shars. Bla. Com. 
 352-354 ; 1 Reeve, Hist. Eng. Law, 245, 382. 
 
 See, also. Assize ; Courts of Assize 
 AND Nisi Pkius ; Jury. 
 
 NISI PRIUS ROLL. In Practice. The 
 
 transcript of a case made from the record of 
 the superior court in which the action is com- 
 menced, for use in the nisi prius court. 
 
 It includes a history of all the proceedings 
 in the case, including the declaration, plea, 
 replication, rejoinder, issue, etc. It must be 
 presented in proper manner to the nisi prius 
 court. When a verdict has been obtained 
 
 and entered on this record, it becomes the 
 postea, and is returned to the superior court. 
 
 Under the Judicature Act of 1875, Ist ScheS 
 Ord. xxxvi. r. 17, the party entering the action 
 for trial is to deliver to the officer a copy of the 
 pleadings for the use of the judge. Moz. & W. 
 
 NO AWARD. The name of a plea in an 
 action or award. 2 Ala. 520 ; 1 H. Chipm 
 131 ; 3 Johns. 367. 
 
 NO BILL. "Words frequently indorsed on 
 a bill of indictment by the grand jury when 
 they have not sufficient cause for finding a 
 true bill. They are equivalent to Not found, 
 or Ignoramus. 2 N. & M'C. 558. 
 
 NOBILB OFFICIUM. In Scotch Law. 
 An equitable power of the court of sessions, 
 by which it is able, to a certain extent, to 
 give relief when none is possible at law. 
 Stair, Inst. b. iv. tit. 3, § 1 ; Erskine, Inst. 1. 
 3. 22; Bell, Diet. 
 
 NOBILITY. An order of men, in sev- 
 eral countries, to whom special privileges are 
 granted. The constitution of the United 
 btates provides. Art. I. § 10, that "no state 
 shall grant any title of nobility," and § 9, 
 that " no title of nobility shall be granted by 
 the United States ; and no person holding 
 any office of profit or trust under them shall, 
 without the consent of congress, accept of 
 any title of any kind, whatever, from any 
 king, prince, or foreign state." It is singular 
 that there should not have been a general pro- 
 hibition against any citizen whatever, whether 
 in private or public life, accepting any foreign 
 title of nobility. An amendment for this 
 purpose has been recommended by congress ; 
 but it has not been ratified by a sufficient 
 number of states to make it a part of the con- 
 stitution, probably from a growing sense that 
 it is unnecessary ; Rawie, Const. 120 ; Story, 
 Const. §8 1350-52; Fed. No. 84. A marshal 
 of the United States cannot at the same time 
 hold the office of commercial agent of a for- 
 eign nation ; 8 Opin. of Att. Gen. 409. 
 
 NOCUMENTUM (Lat. harm, nuisance). 
 In Old English Law. A thing done where- 
 by another man is annoyed in his free lands 
 or tenements. Also, the assize or writ lying 
 for the same. Fitzh. N. B. 188 ; Old N. B. 
 108, 109. Manw. For. Laws, c. 17, divide! 
 nocumentum into generate, commune, speciale. 
 Reg. Orig. 197, 199; Coke, Will Case. 
 Nocumentum was also divided into damnosvm, 
 for which no action lay, it being done by an 
 irresponsible agent, and injuriosum et damno- 
 sum, for which there were several remedies. 
 Bracton, 221 ; Fleta, lib. 4, c. 26, § 2. 
 
 NOLLE PROSEQUI. In Practice. 
 An entry made on the record, by which the 
 prosecutor or plaintiff declares that he will 
 proceed no further. ' 
 
 A nolle prosequi may be entered either in 
 a criminal or a civil case. In criminal cases, 
 before a jury is impanelled to try an indict- 
 ment, and also after conviction, the attorney- 
 general has power to enter a nolle prosequi 
 
NOMEN 
 
 299 
 
 NOMINAL PARTNER 
 
 without the consent of the defendant ; but 
 after a jury is impanelled a nolle prosequi 
 cannot be entered without the consent of the 
 defendant; 17 Pick. 395; 20 id. 356; 
 1 Gray, 490 ; 7 id. 328 ; 12 Vt. 93 ; 3 Hawks, 
 613; 7 Humphr. 152; 1 Bail. 151; 9 Ga. 
 306. It is for the prosecuting oflScer to enter 
 a nol. pros, in his discretion ; 3 Hawlts, 613; 
 but in some states leave must be obtained of 
 the court; 1 Hill, N. Y. 377; 1 Va. Cas. 
 139 ; 12 Vt. 93 ; 7 Smith, Penn. Laws, 227. 
 
 It may be entered as to one of several de- 
 fendants ; 11 East, 307. 
 
 The effect of a nolle prosequi, when ob- 
 tained, is to put the defendant without day ; 
 but it does not operate as an acquittal ; for he 
 may be afterwards reindicted, and, it is said, 
 even upon the same indictment fresh process 
 may be awarded ; 6 Mod. 261 ; 1 Salk. 59 ; 
 Comyns, Die;. Indictment (K) ; 2 Mass. 172 ; 
 4 Cush. 2351 13 Ired. 256. See 3 Cox, C. 
 0. 93 ; 7 Humphr. 159. 
 
 In cioil cases, a nolle prosequi is con- 
 sidered not to be of the nature of a retraxit 
 or release, as was formerly supposed, but an 
 agreement only not to proceed either against 
 some of the defendants, or as to part of the 
 suit. See 1 Wms. Saund. 207, note 2, and the 
 authorities there cited ; 1 Chitty, PI. 546. A 
 nolle prosequi is now held to be no bar to a 
 future action for the same cause, except in 
 those cases where, from the nature of the ac- 
 tion, judgment and execution against one is a 
 satisfaction of all the damages sustained by 
 the plaintiff; 3 Term, 51 1 ; 1 Wils. 98. 
 
 In civil cases, a nolle prosequi may be en- 
 tered as to one of several counts ; 7 Wend. 
 301 ; or to one of several defendants ; 1 Pet. 
 80 ; as in the case of a joint contract, where 
 one of two defendants pleads infancy, the 
 plaintiff may enter a nolle prosequi as to him 
 and proceed against the other ; 1 Pick. 500. 
 See, generally, 1 Pet. 74 ; 2 Rawle, 334 ; 1 
 Bibb, 337 ; 4 id. 387, 454 ; 3 Cow. 335, 
 374; 5 Gill & J. 489 ; 5 Wend. 224; 12 id. 
 110; 20 Johns. 126 ; 3 Watts, 460. 
 
 NOMEN (Lat.). In CivU Law. A name 
 of a person or thing. In a stricter sense, the 
 name which declared the gens or family : as, 
 Porcius, Cornelius ; the cognomen being the 
 name which marked the individual : as Cato, 
 Marcus ; agnomen, a name added to the cog- 
 nomen for the purpose of description. The 
 name of the person himself : e. g. nomen curiis 
 addere. The name denoting the condition of 
 a person or class : e. g. nomen liberorum, con- 
 dition of children. Cause or reason (^pro 
 causa aut ratione") : e. g. nomine culpce, by 
 reason of fault. A mark or sign of any thing, 
 corporeal or incorporeal. Nomen supremum, 
 i. e. God. Debt, or obligation of debt. A 
 debtor. See Vicat, Voc. Jur.; Calvinus, Lex. 
 
 In Old English Law. A name. . The 
 Christian name, e. g. John, as distinguished 
 from the family name : it is also called prce- 
 nomen. Fleta, lib. 4, c. 10, §§7, 9;.Xaw 
 Fr. & Lat. Diet. ' ss ' - 
 
 In Scotch Law. Nomen dehiti. Right 
 to payment of a debt. 
 
 NOMEN COLLECTIVTJM (Lat.). A 
 word in the singular number which is to be 
 understood in the plural in certain cases. 
 
 Misdemeanor, for example, is a word of this 
 kind, and when in the singular may be taken 
 as nomen collectivum and including several 
 offences. 2 B. & Ad. 75. Heir, in the singu- 
 lar, sometimes includes all the heirs. Felony 
 is not such a term. 
 
 NOMEN GENERALISSIMUM (Lat.), 
 A most universal or comprehensive term : e.g. 
 land. 2 Bla. Com. 19 ; 3 id. 172 ; Tayl. Law 
 Gloss. So goods. 2 Will. Ex. 1014. 
 
 NOMINAL DAMAGES. In Practice. 
 
 A trifling sum awarded where a breach of 
 duty or an infraction of the plaintiff's right is 
 shown, but no serious loss is proved to have 
 been sustained. 
 
 Wherever any act injures another's right, 
 and would be evidence in future in favor of 
 a wrong-doer, an action may be obtained for 
 an invasion of the right without proof of any 
 specific injury; 1 Wms. Saund. 346 a; 28 
 N. H. 438 ; 13 Conn. 269; and wherever the 
 breach of an agreement or the invasion of a 
 right is established, the law infers some dam- 
 age, and if none is shown will award a trifling 
 sum : as, a penny, one cent, six and a quarter 
 cents, etc.; 14 111. 301; 4 Denio, 654; 
 Sedgw. Dam. 47 ; Mayne, Dam. 5. 
 
 Thus, such damages may be awarded in ac- 
 tions for flowing lands ; 2 Stor. 661 ; 1 Rawle, 
 27; 12 Me. 183; 28 N. H. 438; injuries to 
 commons; 2 East, 154; violation of trade- 
 marks ; 4B. & Ad. 410; and see 7 Cush. 
 322 ; 2 R. I. 566 ; infringement of patents ; 
 1 Gall. 429, 483 ; diversion of water-courses ; 
 5 B. & Ad. 1 ; 1 Bingh. u. c. 549 ; 17 Conn. 
 288 ; 2 111. 544 ; 6 Ind. 39 ; 32 N. H. 90 ; 
 but see 21 Ala. N. s. 309; 6 Ohio St. 187; 
 trespass to lands ; 24 Wend. 188 ; 2 Tex. 
 206 ; see 4 Jones, No. C. 139 ; neglect of of- 
 ficial duties, in some cases, 5 Mete. Mass. 517; 
 12 id. 535 ; 1 Denio, 548 ; 27 Vt. 563 ; 23 id. 
 306; 12 N. H. 341 ; breach of contracts; 1 
 Du. N. Y. 363; 2 Hill, N. Y. 644; 5 id. 
 290, 505 ; 6 Md. 274 ; and many other cases 
 where the effect of the suit will be to deter- 
 mine a right ; 2 Wils. 414 ; 12 Ad. & E. 488 ; 
 3 Scott, N. K. 890 ; 13 Conn. 861 ; 20 Mo. 
 603; 28 Me. 505; 19 Miss. 98; 2 La. An. 
 907. And see, in explanation and limitation ; 
 10 B. & C. 145 ; 14 C. B. 595 ; 1 Q. B. 636 ; 
 18 id. 252 ; 22 Vt. 231 ; 1 Dutch. 255 ; 14 
 B. Monr. 330; 5 Ind. 250; 6 Rich. 75. 
 
 The title or right is as firmly established as 
 though the damages were substantial ; Sedgw. 
 Dam. 47. As to its effect upon costs, see 
 Sedgw. Dam. 55 ; 2 Mete. Mass. 96 ; 1 Dow, 
 P. C. 201 ; 1 Curt. C. C. 434 ; 22 Vt. 231. 
 
 NOMINAL PARTNER. One who al- 
 lows his name to appear as a member of a 
 firm, wherein he has no real interest, is liable 
 as a partner to strangers who have no notice 
 
NOMINAL PLAINTIFF 
 
 300 NON CEPIT MODO ET FORMA 
 
 of his want of interest in the partnership ; 2 
 Staph. Com. 101. 
 
 NOMINAL PLAINTIFF. One who is 
 named as the plaintiff in an action, but who 
 has no interest in it, having assigned the cause 
 or right of action to another, for whose use it 
 is brought. 
 
 In general, he cannot interfere with_ the 
 rights of his assignee, nor will he be permitted 
 to'^diseontinue the action, or to meddle with 
 it; 1 Wheat. 233; 7 Cra, 152; 1 Johns. Cas. 
 411 ; 3 id. 242 ; 1 Johns. 532, n. ; 3 id. 426 ; 
 11 id. 47; 12 trf. 237; 1 Phill. Ev. 90, 
 Cowen's note, 172; Greed. Ev. § 173. 
 
 NOMINATE CONTRACT. A contract 
 distinguished by a particular name, the use of 
 which name determines the rights of all the 
 parties to the contract : as, purchase and sale, 
 hiring, partnership, loan for use, deposit, and 
 the like. The law thus supersedes the neces- 
 sity for special stipulations, and creates an ob- 
 ligation in the one party to perform, and a 
 right in the other to demand, whatever is nec- 
 essary to the explication of that ctontract. In 
 Roman law there were twelve nominate con- 
 tracts, with a particular action for each. Bell, 
 Diet. Nominate and Innominate ; Mackeldey, 
 Civ. Law, §§ 395, 408; Dig. 2. 14. 7. 1. 
 
 NOMINATION (from Lat. nominare, to 
 name) . An appointment : as I nominate A 
 B executor of this my last will. 
 
 A proposal. The word nominate is used in 
 this sense in the constitution of the United 
 States, art. 2, s. 2, § 2 : the president " shall 
 nominate, and by and with the consent of the 
 senate shall appoint, ambassadors," etc. 
 
 NOMINE Pa3N.a3 (Lat. in the nature 
 of a penalty) . In Civil LaiKr. A condition 
 annexed to heirship by the will of the de- 
 ceased person. Domat, Civ. Law ; Hallifax, 
 Anal. 
 
 At Common Lavr. A penalty fixed by 
 covenant in a lease for non-performance of its 
 conditions. 2 Lilly, Abr. 221. 
 
 It is usually a gross sum of money, though 
 it may be any thing else, appointed to be paid 
 by the tenant to the reversioner, if the duties 
 are in arrear, in addition to the duties them- 
 selves. Hamm. N. P. 411, 412. 
 
 To entitle himself to the nomine pcencB, the 
 landlord must make a demand of the rent on 
 the very day, as in the case of a re-entry ; 1 
 Saund. 287 b, note ; 7 Co. 28 6 ; Co. Litt. 
 202 a; 7 Term, 117. A distress cannot be 
 taken for a nomine pmnm unless a special 
 power to distrain be annexed to it by deed ; 
 8 Bouvier, Inst. n. 2451. See Bacon, Abr. 
 Rent (K 4) ; Woodf. Landl. & T. 253 ; Dane, 
 Abr. Index. 
 
 NOMINEE. One who has been named 
 or proposed for an office. 
 
 NON ACCEPTAVIT (Lat. he did not 
 accept) . _ In Pleading. The name of a plea 
 to an action of assumpsit brought against the 
 drawee of a bill of exchange upon a supposed 
 acceptance by him. See 4 M. & G. 561. 
 
 NON-ACCESS. The non-existence of 
 sexual intercourse between husband and wife 
 is generally exprtessed by the words non-access 
 of the husband to the wife; which expres- 
 sions, in a case of bastardy, are understood to 
 mean the same thing. 2 Stark. Ev. 218 n 
 
 In Pennsylvania, when the husband has V 
 cess to the wife, no evidence short of his ab- 
 solute impotence is sufiicient to bastardize 
 the issue; 6 Binn. 283. > 
 
 In the civil law the maxim is. Pater is est 
 quern nuptice demonstrant. Tonllier, torn. 2 
 n. 787. The Code Napolfeon, art. 312, enacts 
 "5ue r enfant cnngu pendant le manage a 
 pour pire le mari." See, also, 1 Browne, 
 Penn. Appx. xlvii. 
 
 A married woman cannot prove the non- 
 access of her husband. See 8 East, 193, 202; 
 11 W. 132 ; 12 id. 550 ; 13 Ves. 68 ; 4 Term, 
 251, 336 ; 6 id. 330. 
 
 NON-AGE. By this term is understood 
 that period of life from 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 (Lat. he did not 
 undertake). In Pleading. The general Issue 
 in an action of assumpsit. 
 
 Its form is, " And the said C D, by E F, 
 his attorney, comes and defends the wrong 
 and injury, when, etc., 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 coun- 
 try." 
 
 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 w 
 the contract, at the time when the action was 
 commenced, goes to the gist of the action. 
 Gilbert, C. P. 65; Salk. 279; 2 Stra. 738; 
 1 B. & P. 481. See 12 Viner, Abr. 189; 
 Coniyns, Dig. Pleader (2 G I). 
 
 NON ASSUMPSIT INFRA SEX 
 ANNOS (Lat. he has not undertaken within 
 six years). In Pleading. The plea by whici, 
 when pleadings were in Latin, the defendant 
 alleged that the obligation was not under- 
 taken and the right of action had not accrued 
 within six years, the period of limitation of 
 the right to bring suit. 
 
 NON BIS IN IDEM. In Civil Law. 
 A phrase which signifies that no one shall it 
 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 con. 
 victed or acquitted, he shall not again be tried, 
 Code, 9. 2. 9. 11; Merlin, Expert. Sei 
 Jeopardy. 
 
 NON CEPIT MODO ET , FORMA 
 (Lat. he did not take in manner and form)- 
 In Pleading. The plea which raises tlie 
 
 See 
 
NON-CLAIM 
 
 301 
 
 NON EST FACTUM 
 
 general issue in an action of replevin ; or 
 rather which involves the principal part of the 
 declaration, for, properly speaking, there is no 
 general issue in replevin; Morris, Repl. 142. 
 " Its torm is "And the said C D, by E F, his 
 attorney, comes and defends the wrong and 
 injury, when, etc., 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." 
 
 It denies the taking the things and having 
 them in the place specified in the declaration, 
 both of which are material in this action. 
 Stephen, PL 183, 184; 1 Chitty, PI. 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 (Lat. not of 
 sound mind, memory, or understanding). A 
 generic term, including all the species of mad- 
 ness, whether it arise from idibcy, sickness, 
 lunacy, or drunkenness. Co. Litt. 247 ; 4 
 Co. 124 ; 1 Phill. 100 ; 4 Comyns, Dig. 613 ; 
 Sid. 186 ; Shelf. Lun. 1 ; Idiocy; Lunacy. 
 
 In some states, idiots and lunatics are ex- 
 pressly excluded from the right of suffrage ; 
 and it has been supposed that these classes, by 
 the common political law of England and of 
 this country, were excluded from exercising 
 the right of suffrage even though not prohib- 
 ited therefrom by any express constitutional or 
 statutory provisions ; Cooley, Const. Lim. 753. 
 
 NON CONCESSIT (Lat. he did not 
 grant). In English La'w. 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 plain- 
 tiff sues another for the infringement of his 
 patent right, the defendant may deny that the 
 crown has granted him such a right. It does 
 not deny the grant of a patent, but of the 
 patent as described in the plaintiff's declara- 
 tion; 3 Burr. 1544; 6 Co., 15 b. Also a 
 plea resorted to by a stranger to a deed, be- 
 cause estoppels do not hold with respect to 
 strangers. It brought into issue the title of 
 the grantor as well as the operation of the 
 deed; Whart. Die. 
 
 NONCONFORMISTS. In BngUsh 
 Law. A name given to certain dissenters 
 from the rites and ceremonies of the church of 
 England. 
 
 NON CONSTAT (Lat. it does not ap- 
 pear. It is not certain). Words frequently 
 used, particularly in argument, to express dis- 
 satisfaction with the conclusions of the other 
 party : as, it was moved in arrest of judg- 
 ment that the declaration was not good, be- 
 cause non constat whether A B was seventeen 
 years of age when the action was commenced' 
 Swinb. pt. 4, § 22, p. 331. 
 
 NON CULFABILIS (Lat.). In Plead- 
 ing. Not guilty. It is usually abbreviated 
 non cul.\ 16 Viner, Abr. 1 ; 2 Gabb. Cr. Law, 
 317. 
 
 NON DAMNIPICATUS (Lat. not in- 
 jured). In Pleading. A plea in the nature 
 of a plea of performance to an action of debt 
 on a bond of indemnity, by which the defen- 
 dant asserts that the plaintiff has received no 
 damage. 1 B. & P. 640, n. a; 1 Taunt. 428; 
 1 Saund. 116, n. 1 ; 2 id. 81; 7 Wentw. 
 PI. 615, 616; 1 H. Blackst. 263: 14 Johns. 
 177 ; 5 id. 42 ; 20 id. 153 ; 10 Wheat. 396 ; 
 405; 3 Halst. 1. 
 
 NON DECIMANDO. See De non De- 
 
 CIMANDO. 
 
 NONDBDIT. In Pleading. The 
 
 general issue in formedon. See Ne Dona 
 Pas. 
 
 NON DEMISIT (Lat. he did not demise). 
 In 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 Chitty, PL 
 477. A plea in bar, in replevin, to an avowry 
 for arrears of rent, that the avowant did not 
 demise. Morris, RepL 179 ; 5 A. & E. N. S. 
 373. 
 
 It cannot be pleaded when the demise is 
 stated to have been by indenture. 1 2 Viner, 
 Abr. 178 ; Comyns, Dig. Pleader (2 W 48). 
 See Jud. Act, 1875, Ord.xix. rr. 20, 23. 
 
 NON DETINBT (Lat. he does not de- 
 tain). In 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 the wrong and injury, 
 when, etc., and says that he does not detain 
 the said goods and chattels (or " deeds and 
 writings," according to the subject of the ac- 
 tion) in the said declaration specified; or any 
 part thereof, in manner and form as the said 
 A B hath above complained. And of this 
 the said C D puts himself upon the coun- 
 try." 
 
 It puts in issue the detainer only : a justifi- 
 cation must be pleaded specially. 8 Dowl. 
 Pract. Cas. 347. It is a proper plea to an 
 action of debt on a simple contract in the case 
 of executors and administrators. 6 East, 549 ; 
 Bacon, Abr. Pleas (I) ; 1 Chitty, PL 476. 
 See Jud. Act, 1875, Ord. xix. rr. 20, 23. See 
 Detinet. 
 
 NON EST PACTtTM (Lat. is not Us 
 deed). In Pleading. A plea to an action 
 of debt on a bond or other specialty. 
 
 Its form is, " And the said C D, by E F, 
 his attorney, comes and defends the wrong 
 and injury, when, etc., and says that the 
 said supposed writing obligatory (or " inden- 
 ture," or " articles of agreement," according 
 to the subject of the action) is not his deed. 
 And of this he puts himself upon the coun- 
 try." 6 Rand. 86 ; 1 Litt. 158. 
 
 It is a proper plea when the deed is the 
 foundation of the action ; 1 Wms. Saund. 38, 
 
NON EST INVENTUS 
 
 302 
 
 NON OBSTANTE 
 
 note 3 ; 2 id. 187 a, note 2 ; 2 Ld. Raym. 
 1500; 11 Johns. 476 : and cannot be proved 
 as declared on ; 4 East, 585 ; on account of 
 non-execution ; 6 Term, 317 ; or variance in 
 the body of the instrument ; 1 Campb. 70 ; 
 11 East, 633 ; 6 Taunt. 394; 4 Maule & S. 
 470 ; 2 D. & R. 662. Under this plea the 
 plaintiff may show that the deed was void ab 
 initio; 2 Wils. 341; 2 Campb. 272; 3 id. 
 33; 12 Mod. 101; 1 Ld. Raym. 315; 12 
 Johns. 337 ; 13 id. 430 ; 10 S. & R. 25 ; 14 
 id. 208 ; see 2 Salk. 275 ; 6 Cra. 219 ; or be- 
 came so after making and before suit ; 5 Co. 
 119 b ; 11 id. 27; 4 Cruise, Dig. 368. See 
 1 Chitty, PI. 417, n. 
 
 In covenant, the defendant may, under this 
 plea, avail himself of a mis-statement or 
 omission of a qualifying covenant ; 2 Stra. 
 1146 ; 9 East, 188 ; 11 id. 639; 1 Campb. 
 70 ; 4 id. 20 ; or omission of a condition pre- 
 cedent ; 11 East, 639 ; 7 D. & R. 249. See 
 Jud. Act, 1875, Ord. xix. rr. 20, 23. 
 
 NON EST INVENTUS (I.at. he is not 
 found). In Practice. The sherift'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 JV. E. I. Chitty, Pr. 
 The English form "not found " is also com- 
 monly used. 
 
 NON-FEASANCE. The non-perform- 
 ance of some act which ought to be per- 
 formed. 
 
 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. See 1 Russ. Cr. 48. See, 
 also, Mandatum. 
 
 NON FECIT (Lat. he did not make it). 
 The name of a plea, for example, in an action 
 of assumpsit on a promissory note. 3 M. & 
 G. 446. Rarely used. 
 
 NON FECIT VASTUM CONTRA 
 FROHIBITIONEM (Lat. he did not com- 
 mit waste against the prohibition). In Plead- 
 ing. The name of a plea to an action founded 
 on a writ of estrepement, that the defendant 
 did not commit waste contrary to the prohibi- 
 tion. 2 Bla. Com. 226, 227. 
 
 NON IMPEDIVIT (Lat. he did not im- 
 pede) . In Pleading. The plea of the gene- 
 ral issue in quare impedit, 3 Bla. Com. 305 ; 
 3 Woodd. Lect. 36. In law French, ne dis- 
 turba pas. 
 
 NON INFREGIT CONVENTIONEM 
 (Lat. he has not broken the covenant). In 
 Pleading. A plea in an action of covenant. 
 This plea ia not a general issue : it merely de- 
 nies that the defendant has broken the cove- 
 nants on which he is sued. It being in the 
 negative, it cannot be used where the breach 
 is also in the negative. Bacon, Abr. Cove- 
 nant (L) ; 3 Lev. 19 ; 2 Taunt. 278 : 1 Aik. 
 150; 4 Dall. 436 ; 7 Cow. 71. 
 
 NON-JOINDER. In Pleading. Tie 
 omission of one or more persons wlio should 
 have been made parties to a suit at law or in 
 equity, as plaintiffs or defendants. 
 
 In Equity. Parties may be omitted when 
 the number is great. 1 Smedes & M. 404. 
 The relief granted in such cases will be so 
 modified as not to affect the interests of others • 
 
 1 Pet. 299; 2 Paine, 536; 11 111. 254; 2 
 Johns. Ch. 242. See Parties. It must be 
 taken advantage of before the final hearini;' 
 Ril. Ch. 138; 1 Ala. n. s. 580; 18 id. bu: 
 24 Conn. 586 ; 1 Des. 315 ; 1 Stockt. Ch 
 401 ; 10 Paige, Ch. 445 ; 2 Sandf. Ch. 17; 
 
 2 Iowa, 55 ; 2 McLean, 376 ; except in very 
 strong cases; 1 Pet. 299; as, where a party 
 indispensable to rendering a decree appears to 
 the court to be omitted ; 14 Vt. 178; 19 Ala, 
 N. s. 213 ; 5 111. 424; 24 Me. 119. The ob- 
 jection may be taken by demurrer, if the de. 
 feet appear on the face of the bill ; 5 111. 424 ; 
 1 Des. 315; 8 Ga. 506 ; 19 Ala. u. s. 121; 
 4 Rand. 451 ; or by plea, if it do not appear; 
 9 Mo. 605. See 3 Cra. 220. The objecfion 
 may be avoided by waiver of rights as to the 
 party omitted ; 4 Wise. 54 ; or a supplemen- 
 tal bill filed, in some cases ; 4 Johns, Ch, 
 605. It will not cause distnissal of the bill in 
 the first instance ; 3 Cra. 189 ; 6 Conn. 421 ; 
 17 Ala. 270; 1 T. B. Monr. 189; 1 Dev.Eq. 
 354; 1 Hill, So. C. 53; but will, if it con- 
 tinues after objection made ; 17 Ala. 270; 5 
 Mas. 561 ; without prejudice; 6 Mas, 561; 1 
 J. J. Marsh. 76 ; 3 id. 103 ; 6 id. 622 ; 4 .B 
 Monr. 594 ; 6 id. 330 ; 7 Paige, Ch. 451 ; 1 
 Sandf. Ch. 46. The cause is ordered to stand 
 over in the first instance ; 20 Me. 69 ; 9 Cow. 
 320; 2Edw. Ch. 242. 
 
 In Law. See Abatement; Parties, 
 
 In England, the Judicature Act of 1875, Orfl. 
 xvi., has made very full provisions as to the 
 joinder of parties, and the consequences of mis- 
 joinder and non-joinder. All persons may be 
 joined as plaintiffs in whom the right to any re- 
 lief claimed is alleged to exist, whether jointly, 
 severally, or in the alternative. 
 
 NON JURIDICUS. See Dies Non. 
 
 NON JURORS. In English Law. Per- 
 sons who refuse to take the oaths, required by 
 law, to support the government. See 1 Dall, 
 170. 
 
 NON LIQUET (Lat. it is not clear). In 
 Civil Law. Words by which the judges 
 (judices), in a Roman trial, were accustomed 
 to free themselves from the necessity of de- 
 ciding a cause when the rights of the parties 
 were doubtful. On the tablets which were 
 given to the judges wherewith to indicatf 
 their judgment, was written N. L. vicat, 
 Voc. Jur. 
 
 . NON OBSTANTE. In BngUsh Law, 
 These words, which literally signify nolwM- 
 standing, are used to express the act of the 
 English king by which he dispenses with the 
 law, that is, authorizes its violation. 
 
 He cannot by his license or dispensation 
 make an offence dispunishable which ismaW 
 in se ; but in certain matters which are mm 
 
NON OBSTANTE VEREDICTO 303 
 
 NONSENSE 
 
 prohibita he may, to certain persons and on 
 special occasions, grant a non obstante. 
 Vaugh. 330-359; Lev. 217; Sid. 6, 7; 12 
 Co. 18 ; Bacon, Abr. Prerogative (D 7) ; 
 
 2 Reeve, Eng. L. C. 8, p. 83. But the 
 doctrine of non obstante, which set the pre- 
 rogative above the laws, was demolished by 
 the bill of rights at the revolution ; 1 W. & 
 M. Stat. 2 c. 2 ; 1 Bla. Com. 342 ; 1 Steph. 
 Cora. 460. See Judgment non obstante 
 Verkdicto. 
 
 NON OBSTANTE VEREDICTO. Not- 
 withstanding the verdict. See Judgment 
 NON obstante Veredicto. 
 
 NON OMITTAS (Lat. more fully, non 
 omittas propter libertatem, do not omit on ac- 
 count of the liberty or franchise). In Prac- 
 tice. A writ which lies when the sheriff re- 
 turns on writ to him directed, that he hath 
 sent to the bailiff of such a franchise, which 
 hath return of writs, and he hath not served 
 the writ ; then the plaintiff shall have this 
 writ directed to tlie sheriff, that he omit not 
 on account of any franchise, but himself 
 enter into the franchise and execute the king's 
 writ. 
 
 This clause is now usually inserted in all 
 ' processes addressed to sheriffs. Wharton, 
 Lex.; 2 Will. IV. c. 39; 3 Chitty, Stat. 
 494; 3 Chitty, Pr. 190, 310. 
 
 NON-PLEVIN. In Old English Law. 
 A neglect to replevin land taken into the 
 hands of the king upon default, within fifteen 
 days, by which seisin was lost, as by default. 
 Heugh. de Magn. Ch. c. 8. By 9 Edw. III. 
 e. 2, ,no man shall lose his land by non-plevin. 
 
 NON PROS. An abbreviation of non 
 prosequitur, he does not pursue. Where the 
 plaintiff, at any stage of the proceedings, 
 fails to prosecute his action, or any part of it, 
 in due time, the defendant enters non prose- 
 quitur, and signs final judgment, and obtains 
 costs against the plaintiff', who is said to be 
 non pros'd. 2 Archb. Pr. Chitty ed. 1409 ; 
 
 3 Bla. Com. 296 ; 1 Tidd, Pr. 458 ; 3 Chitty, 
 Pr. 10; Caines, Pract. 102. The name non 
 pros, is applied to the judgment so rendered 
 .against the plaintiff ; 1 Sell. Pr., and authori- 
 ties above cited. 
 
 In modern English practice under the Jud. 
 Act, 1875, a plaintiff, failing to deliver a state- 
 ment of his claim in due time, may have bis ac- 
 tion dismissed for want of prosecution. And 
 the same couijse may be taken with a plaintiif 
 who fails to comply with an order to answer in- 
 terrogatories ; besides that the party so making 
 default renders himself liable to " attachment." 
 If the plaintiif fail in due time to give " notice 
 of trial," the defendant may do so for him ; 
 Moz. & W. 
 
 NON-RESIDENCE. In Ecclesiastical 
 Law. The absence of spiritual persons from 
 their benefices. 
 
 NON-RESIDENTS. Service of process 
 on non-resident defendants is void, except- 
 mg cases which proceed in rem, such as pro- 
 ceedings in admiralty or by foreign attachment, 
 in which the property of a non-resident 
 
 debtor is seized as security for the satisfaction 
 of any judgment that may be obtained 
 against him. 
 
 NON SUBMISSIT (Lat.). The name 
 of a plea to an action of debt, or a bond to 
 perform an award, by which the defendant 
 pleads that he did not submit. Bacon, Abr. 
 Arbitration, etc. (G). 
 
 NON SUM INFORlVrATUS (Lat.). 
 In Pleading. I am not informed. See 
 Judgment. 
 
 NON TENENT INSHVITTL (Lat. they 
 do not hold- together). In Pleading. A 
 plea to an action in partition, by which the 
 defendant denies that he holds the property 
 which is the subject of the suit, together with 
 the complainant or plaintiff. 
 
 NON TENTJIT (Lat. he did not hold). 
 In Pleading. The name of a plea in bar in 
 replevin, when the defendant has avowed for 
 rent-arrear, by which the plaintiff avows that 
 he did not hold in manner and form as the 
 avowry alleges; Rose. Real Act. 628. 
 
 NON-TENURE. In Pleading. A plea 
 in a real action, by which the defendant as- 
 serted that he did not hold the land, or at 
 least some part of it, as mentioned in the 
 plaintift''s declaration; 1 Mod. 250 ; in which 
 case the writ abates as to the part with refer- 
 ence to which the plea is sustained. 8 Cra. 
 242. It may be pleaded with or without a 
 disclaimer. It was a dilatory plea, though 
 not strictly in abatement ; 2 Saund. 44, n. 4 ; 
 Dy. 210;" Booth, Real Act. 179; 3 Mass. 
 312 ; 11 id. 216 ; but might be pleaded as to 
 part along with a plea in bar as to the rest ; 
 1 Lutw. 716 ; Rast. Ent. 231 a, b ; and was 
 subsequently considered as a plea in bar ; 14 
 Mass. 239; 1 Me. 54; 2 N. H. 10; Bacon, 
 Abr. Pleas (I 9). 
 
 NON-TERM. The vacation between two 
 terms of a court. 
 
 NON-USEK. The neglect to make use 
 of a thing. 
 
 A right which maybe acquired by use may 
 be lost by non-user ; and an absolute discon- 
 tinuance of the use for twenty years affords 
 presumption of the extinguishment of the 
 right in favor of some other adverse right. 
 5 Whart. 584; 23 Pick. 141. See Aban- 
 donment ; Easement. 
 
 Every public officer is required to use his 
 office for the public good : a non-user of a 
 public office is, therefore, a sufficient cause 
 of forfeiture ; 2 Bla. Com. 153; 9 Co. 50. 
 Non-user for a great length of time will have 
 the effect of repealing an old law. But it 
 must be a very strong case which will have 
 that effect; 13 S. & R. 452; 1 Bouvier, 
 Inst. n. 94. 
 
 NONSENSE. That which in a written 
 agreement or will is unintelligible. 
 
 It is a rule of law that an instrument shall 
 be so construed that the whole, if possible, 
 shall stand. When a matter is written gram- 
 matically right, but it is unintelligible and the 
 
NONSUIT 
 
 304 
 
 NORTH CAROLINA 
 
 whole makes nonsense, some words cannot be 
 rejected to make sense of the rest ; 1 Salk. 
 324 ; but when matter is nonsense by being 
 contrary and repugnant to some precedent 
 sensible matter, such repugnant matter is re- 
 jected ; 14 Viner, Abr. 142; ]5 id. 560. 
 The maxim of the civil law on this subject 
 agrees with this rule : Quas in testamento ita 
 sunt scripta, ut intelligi non possent : perinde 
 sunt, ac si scripta non essent ; Dig. 5ff. 17. 
 73.3. See Ambiguity; Cqnstkuction ; 
 Inteupretation. 
 
 In pleading, when matter is nonsense by 
 being contradictory and repugnant to some- 
 thing precedent, the precedent matter, which 
 is sense, shall not be defeated by the repug- 
 nancy which follows, but that which is con- 
 tradictory shall be rejected : as in ejectment 
 where the declaration is of a demise on the 
 second day of January, and that the defend- 
 ant postea scilicet, on the Jirst of January, 
 ejected liim, here the scilicet may be rejected 
 as being expressly contrary to the postea and 
 the precedent matter ; 6 East, 255 ; 1 Salk. 
 324. 
 
 NONSUIT. The name of a judgment 
 given against the plaintiff when he is unable 
 to prove his case, or when he refuses or neg- 
 lects to proceed to the trial of a cause after 
 it has been put at issue, without determining 
 such issue. 
 
 A voluntary nonsuit is an abandonment of 
 his cause by plaintiff, who allows a judgment 
 for costs to be entered against him by absent- 
 ing himself or failing to answer when called 
 upon to hear the verdict ; 1 Dutch. 656. 
 
 An involuntary nonsuit takes place when 
 the plaintifl', on being called, when his case is 
 before the court for trial, neglects to appear, 
 or when he has given no evidence on which a 
 jury could find a verdict ; 13 Johns. 334. 
 
 In English practice, when issue has been 
 joined, and the plaintiff neglects to bring on 
 the issue to be tried during or before the fol- 
 lowing -term and vacation, etc., the defend- 
 a.nt may give twenty days' notice to the plain- 
 tiff to bring on the issue, to be tried at the 
 sittings or assizes next aftgr the expiration of 
 the notice ; and if plaintiff afterwards neg- 
 lects to give notice of trial for such sittings 
 or assizes, or to proceed to trial in pursuance 
 of such notice of defendant, the defendant 
 may suggest on record that the plaintiff has 
 failed to proceed to trial, etc., and may sign 
 judgment for his costs : provided that the 
 judge may have power to extend time for 
 proceeding to trial with or without terms ; 
 Com. Law Proc. Act 1852, §§ 100, 101 ; 3 
 Chitty, Stat. 519, 550. 
 
 A nonsuit is no bar to another action for 
 the same cause. The courts of the United 
 States; 1 Pet. 469, 476; 1 McCrary, 436 ; 
 9 Ind. 551; 14 Ark. 706; Wisconsin; 50 
 Wis. 247; Massachusetts; 6 Pick. Mass. 
 117; Tennessee; 2 Ov. Tenn. 57; 4 Yerg. 
 528 ; and Virginia; 1 Wash. Va. 87, 219; 
 cannot order a nonsuit against a plaintiff who 
 has given evidence of his claim. In Alabama, 
 
 unless authorized by statute, the courts cannot 
 
 enter a nonsuit ; 1 Ala. 75 ; 4 id 42 Soo 
 
 22 Ala. N. 8. 613. " ^ 
 
 In New York; 12 Johns. 299; 13 iV.334. 
 
 1 Wend. 376 ; South Carolina: 2 Bay in 
 445; 2 Bail. 321; 2M'Cord, 26; Maine'- 
 
 2 Me. 5: 42 id. 259; New Hampshire; 26 
 N. H. 351 ; 31 id. 92; Ohio; 4 Ohio, 628 • 
 Illinois; 17 111. 494; Florida; 5 Fla. 476' 
 Indiana; 9 Ind. 179; Georgia; 16 Ga! 
 154; California; 1 Cal. 108, 125, 221- 
 Missouri; 19 Mo. 101; a nonsirit bih)-, in 
 general, be ordered where the evidence is in- 
 sufficient to support the action, but not till 
 final submission of the cause. See 3 Chitty 
 Pr. 910; 1 Archb. Pr. 787; Bacon, Abr.; 
 15 Viner, Abr. 560; 3 Bla. Com. 376- 2 
 Tidd. Pr. 916 et seq ; 1 T. & H. Pr. § 715. 
 
 NORTH CAROLINA. The name of 
 one of the original states of the United 
 States of America. 
 
 The territory which now forms this state was 
 included in the grant made in 1663 by Charles 
 II., to Lord Clarendon and others, of a mucli 
 more extensive country. The bounflaries were 
 enlarged by a new charter granted by the same 
 prince to the same proprietaries in the year 1665. 
 By this charter the proprietaries were authorized 
 to make laws, with the assent of the freemen of 
 the province or their delegates, and they were 
 invested with various other powers. Being dis- 
 satisfied with the form of government, the pro- 
 prietaries procured the celebrated John Locke to 
 draw up a plan of government for the colony, 
 which was adopted, and proved to be impracti- 
 cable : it was highly exceptionable on account 
 of its disregard of the principles of religious tole- 
 ration and national liberty, which are now uni- 
 versally admitted. After a few years of unsnc- 
 cessful operation it was abandoned. The colony 
 had been settled at two points, one called the 
 Northern and the other the Southern settlement, 
 which were governed by separate legislatures. 
 In 1729 the proprietaries surrendered their char- 
 ter, when it became a royal province, and was 
 governed by a commission and a form of gov- 
 ernment in substance similar to that established 
 in other royal provinces. In 1732 the territory 
 was divided, and the divisions assumed the 
 names of North Carolina and South Carolina. 
 
 A constitution of North Carolina was adopted 
 December 18, 1776. To this constitution amend- 
 ments were made in convention June 4, 1835, 
 which were ratified by the people on the 9th day 
 of November of the same year, and took effect 
 on the 1st day of January, 1836. There>a6a 
 second constitution of 1868, and the amended 
 constitution of 1876. 
 
 Every man of the age of twenty-one yeare, 
 being a native or naturalized ' citizen of the 
 United States, and who has been an inhabitant 
 of the state for twelve months immediately pre- 
 ceding the day of any election, and ninety days 
 in the county in which he offers to vote, is enti- 
 tled to vote. Amended Const. 1876, art. 6, § 1.. 
 
 The Legislative Powek.— The Senate con- 
 sists of fifty members, chosen biennially, for the 
 term of two years, by ballot. Each senator 
 must be twenty-five years of age, a resident of 
 the state as a citizen for two years, and usually 
 a resident of the district for which he is chosen 
 one year immediately preceding his election. 
 Art. 3, §§3,7. .,: 
 
 The House of Bepretentatives is composeo PJ 
 
NORTH CAROLINA 
 
 805 
 
 NORTH CAROLINA 
 
 one hundred and twenty representatives, appor- 
 tioned among the counties in the ratio of the 
 population as enumerated for the purposes of 
 federal representation. They are elected bien- 
 nially, for the term of two years. The qualifi- 
 cations required are that each representative be 
 a qualified elector of the state and a resident in 
 the county for which he is chosen, one year 
 immediately preceding his election. Art. 2, 
 §§ 5, 8. 
 
 The following classes of persons are disquali- 
 fied for ofiice : 1. All persons denying the being 
 of Almighty God. 2. All persons having been 
 convicted of treason, perjury, or any other infa- 
 mous crime, since becoming citizens of the 
 United States, or of corruption or malpractice 
 in ofiice, unless such person has been legally re- 
 stored to the rights of citizenship. Const, art. 
 6, §5. 
 
 The Executive Powek. — The Governor is 
 elected by the qualified voters of the state, for 
 the term of four years from the first day of Jan- 
 uary next following his election. He is not eli- 
 gible more than four years in any term of eight 
 years, unless the ofiice shall have been cast upon 
 him as lieutenant-governor or president of the 
 senate. He must be thirty years of age, and a 
 citizen of the United States five years, and a 
 resident of the state for two years next before 
 election. Const, art. 3, §§ 1-3. The candidate 
 having the largest number of votes is elected ; 
 and in case of no election or a contested elec- 
 tion, the matter is to be decided by the joint 
 action of the two houses. 
 
 There are also a lieutenant-governor, a secretary 
 of state, an auditor, a treasurer, a superintend- 
 ant of public instruction, and an attorney-gene- 
 ral, elected for a terra of four years by the 
 qualified electors of the state ; the attorney- 
 general being ex-oilicio the legal adviser of the 
 executive department, and the secretary of state, 
 auditor, treasurer, and superintendent of public 
 instruction forming a council of state ex-officio 
 to advise the governor in the execution of his 
 ofiice. Any three constitute a quorum. 
 
 The Judicial Power. — The distinction be 
 tween law and equity is done away with. There 
 is but one form of actiou in all civil actions. 
 Feigned issues also are abolished, and the issue 
 is tried before a jury. 
 
 The Supreme Court is composed of three 
 judges, elected by joint ballot in the two houses 
 of assembly, to hold their ofiice for eight years. 
 Of these, one is selected by his associates to 
 preside, and is styled the chief justice. It is al- 
 most entirely an appellate tribunal, having origi- 
 nal jurisdiction only in proceedings \>y a bill in 
 equity, or an information in the nature of a bill 
 in equity, filed on behalf of the state, in the 
 name of the attorney-general, to repeal grants 
 and other letters patent obtained by fraud or 
 false suggestions, and such decisions are merely 
 recommendations to the general assembly. It 
 has appellate jurisdiction over all cases in law 
 or equity brought before it by appeal or other- 
 wise from a superior court of law or a court of 
 equity. It has also power to issue writs of cer- 
 tiorari, scire facias, habeas corpus, and other 
 writs which may be necessary for the exercise of 
 its jurisdiction, and agreeable to the principles 
 and usages of law. Criminal cases are to be 
 certified to the superior court from which the 
 appeal was taken, which court proceeds to judg- 
 ment in accordance with the decision of the 
 supreme court. 
 
 A Superior Cowt is held by one judge, at the 
 court house in each county of the state, twice in 
 each year. For this purpose the state is divided 
 Vol. IL— 20 
 
 into nine circuits, each composed of ten or more 
 counties ; and the nine judges who are appointed 
 to hold these courts ride the circuits alternately, 
 with the power to interchange ; but no judge 
 rides the same circuit twice in succession. The 
 judges are appointed in the same manner and for 
 the same term as the supreme judges. The superior 
 courts " have cognizance and legal jurisdiction, 
 unless otherwise provided, of all pleas, real, 
 personal, and mixed, and also all suits and de- 
 mands relative todower, partition, legacies, filial 
 portions, and estates of intestates ; and, unless 
 it be otherwise provided, of all pleas of the 
 state, and criminal matters of what nature, de- 
 gree, or denomination soever, whether brought 
 before them by original or by mesne process, or 
 by certiorari, writ of error, appeal from any in- 
 ferior court, or by any other way or manner 
 whatsoever; and they are hereby declared to 
 have full power and authority to give judgment 
 and to award execution and all necessary pro- 
 cess therein," etc. See Kevised Code, c. 31, § 17. 
 
 The same judges who hold the superior courts 
 of law are required and authorized to hold, at 
 the same times and place*, courts of equity, and 
 in doing so shall "possess all the powers and 
 authorities within the same that the court of 
 chancery, which was formerly held in this state 
 under the colonial government, used and ex- 
 ercised, and that are properly and rightfully 
 incident to such a court, agreeable to the laws 
 and usages now in force and practice." See 
 Revised Code, c. 32, §§ 1-3. 
 
 The Courts of Pleas and Quarter Sessions are 
 held four times in each year, in the several coun- 
 ties of the state, by three or more justices of the 
 peace, who " shall take cognizance of, and have 
 full power and authority and original jurisdic- 
 tion to hear, try, and determine, all causes of a 
 civil nature whatever at the common law within 
 their respective counties, where the original 
 jurisdiction is not by statute confined to one or 
 more magistrates out of court, or to the supreme 
 or superior courts; of all penalties to the 
 amount of one hundred dollars and upwards in- 
 curred by violation of the penal statutes of the 
 state or of laws passed by the congress of the 
 United States, where by such law jurisdiction is 
 given to the courts of the several states ; of suits 
 for dower, partition, filial portions, legacies, and 
 distributive shares of intestates' estates, and all 
 other matters relating thereto ; to try, hear, and 
 determine all matters relating to orphans. Idiots, 
 and lunatics, and the management of their es- 
 tates, in like manner as courts of equity exer- 
 cise jurisdiction in such cases ; to inquire of, 
 try, hear, and determine all petit larcenies, as- 
 saults and batteries, all trespasses and breaches 
 of the peace, and all other crimes and misde- 
 meanors the judgment upon conviction whereof 
 shall not extend to life, limb, or member : ex- 
 cepting those only whereof the original jurisdic- 
 tion is given exclusively to a single justice or to 
 two justices of the peace, to the superior or to 
 the supreme court." 
 
 In some of the counties jury trials are abol- 
 ished by special acts of the legislature, and in 
 others such trials are had twice only in the year. 
 
 Justices of the Peace are elected. They have 
 jurisdiction of civil actions founded on contract, 
 where the sum demanded does not exceed two 
 hundred dollars, and where the title to real es- 
 tate is not in controversy, and all criminal mat- 
 ters arising within their counties, where the pun- 
 ishment cannot exceed a fine of fifty dollars or 
 imprisonment for thirty days. Jurisdiction may 
 be given to them by the assembly in other civil 
 actions where the value of the property in con- 
 troversy does not exceed fifty dollars. In issues 
 of fact, on demand of either party, a jury of sir 
 
NOSOCOMI 
 
 306 
 
 NOT PROVEN 
 
 Amended 
 
 men is summoned to try the same, 
 Const. 1876, art. 4, § 27. 
 
 NOSOCOMI. In CivU Law. Persons 
 ■who have the management and care of hos- 
 pitals for paupers. Clef Lois Kom. mot Ad- 
 ministrateurs. 
 
 NOT FOUND. Words indorsed on a 
 bill of indictment by a grand jury, when 
 they have not sufficient evidence to find a 
 true bill. See Ignoramus. 
 
 NOT GUILTY. In Pleading. The 
 
 general issue in several sorts of actions. 
 
 In trespass, its form is as follows: "And 
 the said C D, by E F, his attorney, comes 
 and defends the force and injury, when, etc., 
 and says that he is not guilty of the said tres- 
 passes above laid to his charge, or any part 
 thereof, in the manner and form as the said 
 A B hath above complained. And of this 
 the said C D puts himself upon the country." 
 
 Under this issue the defendant may give in 
 evidence any matter which directly contro- 
 verts the truth of any allegation, which the 
 plaintiff on such general issue will be bound 
 to prove; 1 B. & P. 213 ; and no person is 
 bound to justify who is not primd facie a 
 trespasser ; 2 B. & P. 359 ; 2 Saund. 284 d. 
 For example, the plea of not guilty is proper 
 in trespass to persons., if the defendant have 
 committed no assault, battery, or iniprison- 
 ment, etc. ; and in trespass to personal pro- 
 perty, if the plaintiff had no property in the 
 goods, or the defendant were not guilty of 
 taking them, etc. ; and in trespass to real 
 property, this plea not only puts in issue the 
 fact of trespass, etc., but also the title, which, 
 whether freehold or possessory in the defend- 
 ant or a person under whom he claims, may 
 be given in evidence under it, which matters 
 show prima, facie that the right of possession, 
 which is necessary in trespass, is not in the 
 plaintiff, but in the defendant or the person 
 under whom he justifies ; 7 Term, 354 ; 8 id. 
 403 ; Willes, 222 ; Steph, PL 1 78 ; I Chitty, 
 PI. 491, 492. 
 
 In trespass on the case in general, the 
 formula is as follows : " And the said C D, 
 by E F, his attorney, comes and defends the 
 wrong and injury, when, etc., and says that 
 he is not guilty of the premises above laid to 
 his charge, in manner and form as the said A 
 B hath above complained. And of this the 
 said C D puts himself upon the country." 
 
 This, it will be observed, is a mere traverse, 
 or denial, of the facts alleged in the declara- 
 tion, and therefore, on principle, should be 
 applied only to cases in which the defence 
 rests on such a denial. But here a relaxation 
 has taken place ; for, under this plea, a de- 
 fendant is permitted not only to contest the 
 truth of the declaration, but, with some ex- 
 ceptions, to prove any matter of defence that 
 tends to show that the plaintiff has no cause 
 of action, though such matters be in confes- 
 sion and avoidance of the declaration : as, for 
 example, a release given, or satisfaction made : 
 Steph. PI. 182, 183 ; 1 Chitty, PI. 486. 
 
 In trover. It is not usual in this action to 
 plead any other plea, except the statute of 
 limitations : and a release, and the bankruptcy 
 of the plaintiff, may be given in evidence nn- 
 der the general issue ; 7Term, 391. 
 
 In debt on a judgment suggesting a detas- 
 tavit, an executor may plead not guilty 1 
 Term, 462. 
 
 In criminal cases, when the defendant 
 wishes to put himself on his trial, he pleads 
 not guilty. This plea makes it incumbent up. 
 on the prosecutor to prove every fact and cir. 
 cumstance constituting the offence, as stated 
 in the indictment, information, or complaint. 
 On the other hand, the defendant may give 
 in evidence under this plea not only every 
 thing which negatives the allegations in the 
 indictmeiit, but also all matter of excuse and 
 justification. 
 
 In English practice, under the Jud. Act, 1875, 
 it is not sufficient for a defendant to deny gener- 
 ally the facts alleged by the plaintiff's statement 
 of claim, but he must deal epeciflcally with eack 
 allegation of fact of which he does notadmittbe 
 truth. But this does not affect defendant's right 
 to plead " not guilty by statute," which is aplea 
 of the general issue by a defendant in a civU ac- 
 tion, when he intends to give special matter in 
 evidence by virtue of some act or acts of parlia- 
 ment ; in which case he must add the reference 
 to such act or acts, and state whether tbey are 
 public or otherwise. Rule 21 of the Rules of 
 Trinity Term, 1853. But if a defendantso plead, 
 he will not be allowed to plead any other defence 
 without the leave of the court or a judge. Jud. 
 Act, 1875, 1st Sched. Ord. xix. r. 16. Moz. 
 &W. 
 
 NOT FOSSHSSED. In Pleading, A 
 plea sometimes used in actions of trover, when 
 the defendant was not possessed of the goods 
 at the commencement of the action. 3 M. & 
 G. 101, 103. This plea would probably be 
 held "evasive" within the meaning of Ord. 
 xix. r. 22, Jud. Act, 1875. Moz. & W. 
 
 NOT PROVEN. In Scotch Criminal 
 Lavr. It is a peculiarity of the Scotch jurj 
 system in criminal trials that it admits a ver- 
 dict of not proven, corresponding to the nra 
 liquet of the Roman law. The legal effect ol 
 this is equivalent to not guilty ; for a prisonci 
 in whose case it is pronounced cannot be triec 
 again. According to the homely but expres- 
 sive maxim of the law, no man can be madi 
 to thole an assize twice. But, although th( 
 verdict of not proven is so far tantamount t( 
 an acquittal that the party cannot be tried i 
 second time, it falls very far short of it will 
 regard to the effect upon his reputation am 
 character. He goes away from the bar of thi 
 aourt with an indelible stigma upon his fjune 
 There stands recorded agamst him the opinioi 
 of a jury that the evidence respecting m 
 guilt was so strong that they did not dare ti 
 pronounce a verdict of acquittal. So tla 
 many of the evil consequences of a convicUoi 
 follow, although the jury refuse to convict 
 When Sir Nicholas Throckmorton was trici 
 and acquitted by an English jury in 1554, !>< 
 said, "It is better to be tried than to hyesus 
 pected." But in Scotland a man may be no 
 
NOTARIUS 
 
 307 
 
 NOTICE 
 
 only tried, but acquitted, and yet live sus- 
 pected, owing to the sinister influence of a 
 verdict of not proven. Forsyth, Hist. Trial 
 by Jury, 334-339. 
 
 NOTARITTS. In Civil Law. One who 
 
 took notes or draughts in short-hand of what 
 ■was said by another, or of proceedings in the 
 senate or in a court. One who draughted 
 written instruments, wills, conveyances, etc. 
 Vicat, Voe. Jur.; Calvinus, Lex. 
 
 In English La'vtr. A notary. Law Fr. & 
 Lat. Diet.; Cowel. 
 
 NOTARY, NOTARY PUBLIC. An 
 ■ officer appointed by the executive or other 
 appointing power, under the laws of different 
 states. 
 
 Notaries are of ancient origin ; they existed 
 in Rome during the republic, and were called 
 tdbelliones forense.s, or personce publicce. 
 Their employment consisted in the drawing up 
 of legal documents. They exist in all the 
 countries of Europe, and as early as A. D. 
 803 were appointed by the Prankish kings 
 and the popes. Notaries in England are ap- 
 pointed by the archbishop of Canterbury. 25 
 Hen. VIIL c. 21, § 4. They are officers of 
 the civil and canon law; Brooke, Office & 
 Pr. of a Notary, 9. In most of the states, 
 notaries are appointed by the governor alone, 
 in others by the governor, by and with the 
 advice of his council, in others by and with 
 the advice and consent of the senate. As a 
 general rule, throughout the United States, 
 the official acts of a notary public must be 
 authenticated by seal as well as signature ; 10 
 Iowa, 305; 49 Ala. 242; 12 111. 162. 
 
 Their duties differ somewhat in the different 
 states, and are prescribed by statutes. They 
 are generally as follows: to protest bills of 
 exchange and draw up acts of honor ; to au- 
 thenticate and certify copies of documents ; 
 to receive the affidavits of mariners and draw 
 up protests relating to the same ; to attest 
 and take acknowledgments of deeds and other 
 instruments, and to administer oaths. 
 
 By act of congress, Sept. 16, 1850, notaries 
 are authorized to administer oaths and take 
 acknowledgments in all cases where under 
 the laws of the United States justices of the 
 peace were formerly authorized to act. 
 
 By act of Aug. 15, 1876, c. 304, notaries are 
 authorized to take depositions and do all other 
 acts in relation to talcing testimony to be used 
 in the courts of the United States, and to take 
 acknowledgments and affidavits with the same 
 effect as commissioners of the United States 
 circuit courts may do. R. S. § 1778. By act of 
 June 22, 1874, c. 390, notaries may take proof of 
 debts against the estate of a bankrupt. By act of 
 Feb. 26, 1881 , c. 82, reports of national banks may 
 be sworn to before notaries ; R. S. § 5211. By act 
 of Aug. 18, 1856, c. 127, every seeijitary of lega- 
 tion and consular officer may, within the limits 
 of his legation, perform any notarial act ; R. S. 
 § 1750. 
 
 The acts of notaries are respected by the 
 custom of merchants and the law of nations. 
 Their protest of a bill is received as evidence 
 m the courts of all civilized countries. Ex- 
 cept in cases of protest of bills, the signature 
 
 of a notary to an instrument going to a foreign 
 country ought to be authenticated by the con- 
 sul or representative of that country. 
 
 The notaries of England have always con- 
 sidered themselves authorized to administer 
 oaths ; and the act 5 & 6 Will. IV. has placed 
 it beyond dispute. In this country they do 
 not exercise the power unless authorized by 
 statute, except in cases where the oath is to 
 be used out of the state or in the courts of 
 the United States. 
 
 Where an action is brought against a notary 
 for a false certificate of acknowledgment, the 
 presumption is that the defendant, acting in 
 his judicial capacity, did so on reasonable in- 
 formation, and discharged his full dut3'. The 
 burden of proof is on the plaintiff to prove a 
 clear and intentional dereliction of duty. 97 
 Penn. 228; Proff. Notaries §§48 and 135; 
 Sewell, Bank ; Notary's Manual. 
 
 NOTE OF A PINE. The fourth step of 
 the proceedings in acknowledging a fine, which 
 is only an abstract of the writ of covenant and 
 the concord, naming the parties, the parcel of 
 land, and the agreement, and enrolled of record 
 in the proper office. 2 Sharsw. Bla. Com. 351, 
 App. n. iv. § 3 ; 1 Steph. Com. 518. 
 
 NOTE OP HAND. A popular name for 
 a promissory note. 
 
 NOTE, OR IMEMORANCnM. An in- 
 formal note or abstract of a transaction made 
 on the spot, and required by the Statute of 
 Frauds. 
 
 The fonn of it is immaterial ; but it must 
 contain the essential terms of the contract ex- 
 pressed with such a degree of certainty that it 
 may be understood without reference to parol 
 evidence to show intent of parties ; Browne, 
 Stat, of Frauds, 353, 386, and cases cited ; 
 43 Me. 158 ; 4 E. I. 14 ; 14 N. Y. 584 ; 1 
 E. D. Smith, 144; 2 id. 93 ; 31 Miss. 17; 
 11 Cush. 127; 9 Rich. 215; 10 id. 60; 23 
 Mo. 423; 17 111. 354; 3 Iowa, 430. Insome 
 states, and in England, the consideration need 
 not be stated in the note or memorandum ; 5 
 East, 10 ; 4 B. & Aid. 595 ; 5 Cra. 142 ; 17 
 Mass. 122 ; 6 Conn. 81. See Browne, Stat, 
 of Frauds ; Memorandum. 
 
 NOTE OP PROTEST. A note or min- 
 ute of the protest, made by the notary, at 
 time of protest, on the bill, to be completed 
 or filled out at his leisure. Byles, Bills, 9. 
 
 NOTES. See Judge' s Notes; Minutes. 
 
 NOTICE. The information given of some 
 act done, or the interpellation by which some 
 act is required to be done. Knowledge : as, 
 A had notice that B was a slave. 5 How. 
 216; 7 Penn. L. J. 119. 
 
 Actual notice exists when knowledge is 
 actually brought home to the party to be af- 
 fected by it. This definition is criticized, as 
 being too narrow, in Wade, Notice, 4. This 
 writer divides actual knowledge into two 
 classes, express and implied : the former in- 
 cludes all knowledge of a degree above that 
 which depends upon collateral inference, or 
 which imposes upon the party the further duty 
 
NOTICE 
 
 308 
 
 NOTICE OF DISHOKOR 
 
 of inquiry ; the latter imputes knowledge to 
 the party because he is shown to be conscious 
 of having the means of knowledge, though 
 he does not use them, choosing to remain ig- 
 norant of the fact, or is grossly negligent in 
 not following up the inquiry which the known 
 facts suggest ; Wade, Notice, 5. In 42 Conn. 
 146, there is a division into "particular or ex- 
 plicit"' and "general or implied" notice. 
 
 Constructive notice exists when the party, 
 by any circumstance whatever, is put upon 
 inquiry (which is the same as implied notice, 
 supra), or when certain acts have been done 
 which the party interested is presumed to have 
 knowledge of on grounds of public policy; 
 2 Mas. 531 ; 14 Pick. 224 ; 4 N. H. 397; 14 
 S. & R. 333. The recording a deed ; 23 Mo. 
 237; 25 Barb. 635; 28 Miss. 354; 4 Kent, 
 182, n. ; an advertisement in a newspaper, 
 when authorized by statute as a part of^the 
 process, public acts of government, lis pen- 
 dens (but see Lis Pendens), and the record 
 of a deed, furnish constructive notice. Judge 
 Story defines the term as " knowledge " im- 
 puted by the court on presumption, too strong 
 to be rebutted, that the information must have 
 been communicated; Story, Eq. Jur. § 899; 
 and see 2 Anstr. 432. "Constructive notice 
 is a legal inference of notice, of so high a na- 
 ture, as to be conclusive, unless disproved, and 
 is in most cases insusceptible of explanation 
 or rebuttal by evidence that the purchaser had 
 no actual notice, and believed the vendor's 
 title to be good ;" 2 Lead. Cas. Eq. 77. Con- 
 structive notice is sometimes called notice in 
 law; 1 Johns. Ch. 261. The constructive 
 notice given by the record of a deed is some- 
 times called record notice. Where an instru- 
 ment afl'ecting the title to real estate is prop- 
 erly recorded, the record thereof is notice to 
 subsequent purchasers, etc., from the same 
 grantor ; Wade, Notice, 54 ; 38 Tex. 530 ; 
 80 Ark.. 407 ; 28 N. J. Eq. 49. 
 
 Notice to an agent in the same transaction 
 is, in general, notice to the principal ; 25 Conn. 
 444 ; 10 Rich. 293 ; 3 Penn. 67 ; 39 N. Y. 
 70. See 25 Am. L. Reg. 1. 
 
 The giving notice in certain cases is in the 
 nature of a condition precedent to the right 
 to call on the other party for the performance 
 of his engagement, whether his contract were 
 express or implied. Thus, in the familiar in- 
 stance of bills of exchange and promissory 
 notes, the implied contract of an indorser is 
 that he will pay the bill or note, provided it be 
 not paid, on presentment at maturity, by the 
 acceptor or maker (being the party primarily 
 liable), and provided that he (the indorser) 
 has due notice of the dishonor, and without 
 which he is discharged from all liability : con- 
 sequently, it is essential for the holder to be 
 prepared to prove affirmatively that such 
 notice was given, or some facts dispensing 
 with such notice ; 1 Chitty, Pr. 496. 
 
 Whenever the defendant's liability to per- 
 form an act depends on another occurrence 
 which is best known to the plaintiff, and of 
 which the defendant is not legally bound to 
 
 take notice, the plaintiff must prove that due 
 notice was in fact given. So, in cases of in. 
 surances on ships, a notice of abandonment ig 
 frequently necessary to enable the assured 
 plaintiff to proceed as for a total loss when 
 something remains to be saved, in relation to 
 which, upon notice, the insurers might them- 
 selves take their own measures. 
 
 Notice may be written or oral, in many 
 cases, at the option of the party required to 
 give it ; but written notice is generally pre- 
 ferable, both as avoiding doubt and ambiguity 
 in its terms, and as admitting more easy and 
 exact proof of delivery. 
 
 NOTICE, AVERMENT OP. In 
 Pleading. The statement in a pleading that 
 notice has been given. 
 
 When the matter alleged in the pleading is 
 to be considered as lying more properly in 
 the knowledge of the plaintiff than of the 
 defendant, then the declaration ought to state 
 that the defendant had notice thereof: as, 
 when the defendant promised to give the 
 plaintiff as much for a commodity as another 
 person had given or should give for the like. 
 
 But where the matter does not lie more 
 properly in the knowledge of the plaintiff 
 than of the defendant, notice need not be 
 averred; 1 Saund. 117, n. 2; 2 id. 62 a, n. 
 4 ; Preem. 285. Therefore, if the defendant 
 contracted to do a thing on the performance 
 of an act by a stranger, notice need not be 
 averred ; for it lies in the defendant's know- 
 ledge as much as the plaintiff's, and he ought 
 to take notice of it at his peril ; Comyns, 
 Dig. Pleader (C 65). See Comyns, Dig. 
 Pleader (C 73, 74, 75) ; Viner, Abr. Notice; 
 Hardr. 42; 6 Term, 621. 
 
 The omission of an averment of notice, 
 when necessary, will be fatal on demurrer or 
 judgment by default; Cro. Jac. 432; but 
 may be aided by verdict; 1 Stra. 214; 1 
 Saund. 228 a ; unless in an action against 
 the drawer of a bill, when the omission of the 
 averment of notice of non-payment by the 
 acceptor is fatal, even after verdict ; Dougl. 
 679. 
 
 NOTICE OP DISHONOR. A notice 
 given to a drawer or indorser of a hill, or an 
 indorser of a negotiable note, by a subsequent 
 party, that it has been dishonored either by 
 non-acceptance in the case of a bill, or by 
 non-payment in the case of an accepted bill 
 or a note. 
 
 The notice must contain a description of the 
 bill or note; 5 Cush. 546; 14 Conn. 362; 1 
 Fla. 301 ; 1 Wise. 264 ; sufiieient to leaveno 
 doubt in the mind of the indorser, as a rea- 
 sonable man, what note was intended; 8 
 Mete. Mass. 495 ; 5 Cush. 546 ; 7 Ala. ». s. 
 205 ; 12 N. Y. 551 ; 19 id. 518 ; 26 Me, 46i 
 11 Wheat. 431. See 10 N. Y. 279; H «• 
 & W. 809 ; 5 Humphr. 335. As to what m 
 a mis-description, see 7 Exch. 578 ! ' "• „ 
 G. 76; 11 M. & W. 809; 15 id. 231; S 
 Q. B. 609; 9 Pet. 33; 11 Wheat. 431; " 
 How. 606 ; 1 N. Y. 413 ; 7 id. 19 ; 13 Miss. 
 
NOTICE OP DISHONOR 
 
 309 
 
 NOTICE OF DISHONOR 
 
 44; 19 id. 382; 2 Mich. 238; 12 Mass. 6; 
 2 Penn. 855 ; 14 id. 483 ; 2 Ohio St. 345. 
 
 It must also contain a clear statement of the 
 dishonor of the bill ; 7 Bingh. 530 ; 1 Bin»h. 
 N. C. 194; 3 id. 368 ; 2 CI. & F. 93 ; 2 M. 
 &W. 799; 11 C. B. 1011; 3 Mete. Mass. 
 495 ; 18 Conn. 361 ; and something more 
 than the mere fact of non-acceptance or non- 
 payment must be stilted ; 3 Bingh. N. c. 688 ; 
 
 10 Ad. & E. 125; 8 C. & P. 355; 2 Q. B. 
 388; 14 M. & W. 44; II Wheat. 431; 3 
 Mete. Mass. 495; 9 id. 174; 5 Barb. 490; 1 
 Spears, 244 ; 2 Ohio St. 345 ; 3 Md. 202, 251 ; 
 
 11 id. 148 ; 1 Litt. Ky. 194 ; 2 Hawks, 560 ; 
 
 5 How. Miss. 552 ^ except in some cases ; 5 
 Cash. 546 ; 1 Md. 59, 504 ; 4 id. 409 ; as to 
 279 ; 19 Me. 31 ; 23 id. 392 ; 1 N. H. 526 ; 
 the effect of the use of the word protested ; 
 11 Wheat. 431 ; 9 Pet. 33 ; 7 Ala. N. s. 205 ; 
 
 2 Dougl. Mich. 495 ; 1 N. Y. 413 ; 10 id. 
 9 Kob. La. 161; 14 Conn. 362; 5 Cush. 
 546; 1 Wise. 264; 4 N. J. 71. See some 
 cases where the notice was held sufficient ; 2 
 M. & W. 109, 799 ; 6 id. 400 ; 7 id. 515 ; 14 
 id. 7, 44 ; 6 Ad. & E. 499 ; 10 id. 131 ; 2 Q. 
 B. 421 ; 1 E. & B. 801 ; 5 C. B. 687 ; 1 H. 
 
 6 W. 3 ; and others where it was held insuf- 
 ficient; 2 Exch. 719; IE. & B. 801 ; 4 B. 
 & C. 339 ; 10 Ad. & E. 125 ; 7 Bingh. 530 ; 
 
 3 Bingh. N. C. 688 ; 8 C. & P. 355 ; 2 Q. B. 
 388 ; 1 M. & G. 76. 
 
 As to whether there must be a statement 
 that the party to whom the notice is sent is 
 looked to for payment, see 1 Term, 169 ; 11 
 M. &W. 372; 2 Exch. 719; 2 Q. B. 388, 
 419 ; 14 id. 200 ; 7 C. B. 400 ; 4 D. & L. 
 744. 
 
 The notice is generally in writing, but may 
 be oral; 4 AVend. 566; 16 Barb. 146; 3 
 Mete. Mass. 495 ; 8 Mo. 336 ; 7 C. B. 400 ; 
 11 W. 1011; 2 M. & W. 348; 8 C. & P. 
 355 ; 1 H. & W. 3. It need not be personally 
 served, but may be sent by mail; 7 East, 
 385; 6 Wheat. 102; 6 Mass. 316; 14 id. 
 116 ; 1 Pick. 401 ; 28 Vt. 316 ; 15 Md. 285 ; 
 6 Penn. 178; 1 Conn. 329 ; 2 R. I. 467 ; 23 
 Mo. 213 ; 13 N. Y. 649 ; otherwise, perhaps, 
 if the parties live in the same town ; see 5 
 Mete. Mass. 352; 10 Johns. 490; 20 id. 
 372 ; 3 McLean, 96 ; 1 Conn. 367 ; 28 N. H. 
 302; 15 Me. 141; 15 Md. 285 ; 3 Rob. La. 
 261 ; 6 Blackf. 312 ; 3 Jones, 387 ; 3 Ala. N. 
 8.34; 3 Harr. DeL 419; 8 Ohio, 507; or 
 left in the care of a suitable person, represent- 
 ing the party to be notified; 15 Me. 207; 2 
 Johns. 274 ; 20 Miss. 332 ; 16 Pick. 392 ; 14 
 La. 494; 19 111.598; Holt, 476. 
 
 It should be sent to the place where it will 
 most probably find the party to be notified 
 most promptly ; 6 Mete. 1, 7; 1 Pet. 578; 2 
 id. 543 ; whether the place of business ; 1 
 Pet. 578; 3 McLean, 96 ; 5 Mete. Mass. 212, 
 362; 11 Johns. 231; 15 Me. 139; 8 W. & 
 S. 138; 5 Penn. 178; 3 Harr. Del. 419; 6 
 Blackf. 312; 5 Humphr. 403; 3 Rob. La. 
 261; 1 La. An. 96; 1 Maule & S. 645; or 
 place of residence ; 4 Wash. C. C. 464 ; 28 
 Vt. 316 ; 1 Conn. 329. When sent by mail, 
 
 it should be to the post-office to which the 
 party usually resorts ; 2 Pet. 643 ; 4 Wend, 
 328 ; 5 Denio, 329 ; 5 Penn. 160; 3 McLean, 
 91 ; 15 La. 38 ; 4 Humphr. 86 ; 3 Ga. 486 ; 
 11 Md. 486 ; 3 Ohio, 307 ; 8 Mo. 443 ; 6 Mete. 
 106 ; 6 H. & J. 172. See 2 Pet. 643 ; 8 Cush. 
 425 ; 2 Halst. 130. 
 
 Every person who, by and immediately 
 upon the dishonor of the note or bill, and only 
 upon such dishonor, becomes liable to an ac- 
 tion either on the paper or on the considera- 
 tion for which the paper was given, is entitled 
 to immediate notice ; 1 Pars. Notes & B. 
 499. The holder need give notice only to the 
 parties and to the indorser whom he intends to 
 hold liable; 25 Barb. 138; 19 Me. 62; 16 
 Mart. La. 220 ; 11 La. An. 137; 1 Ohio St. 
 206 ; 1 Rich. 369 ; 5 Miss. 272 ; 17 Ala. 258 ; 
 15 M. & W. 231. 
 
 Notice may be given by any party to a note 
 or bill not primarily liable thereon as regards 
 third parties, and not discharged from liability 
 on it at the time notice is given ; 8 Mo. 
 336 ; 16 S. & R. 157 ; 3 Dana, 126 ; 5 Miss. 
 272 ; 17 Ala. 258 ; 3 Wend. 173 ; 25 Barb. 
 138; 15 Md. 150; 15 La. 321; 14 Mass. 
 116; 2 Campb. 373; 4 id. 87; 5 Maule & 
 S. 68 ; 3 Ad. & E. 193; 9 C. B. 46 ; 13 id. 
 249 ; 15 M. & W. 231. The late English 
 doctrine that any party to a note or bill may 
 give the notice by which an antecedent party 
 may be held liable to subsequent parties, is 
 now quite firmly established ; Wade, No- 
 tice, § 709. Such notice may be by the 
 holder's agent; 4 How. 336; 11 Rob. La. 
 454; 21 Tex. 680; 8 Mo. 704 ; 7 Ala. N. s. 
 205 ; 4 D. & L. 744 ; 15 M. & W. 231 ; an 
 indorsee for collection ; 2 Hall, N. Y. 112; 
 3 N. Y. 243 ; a notary ; 2 How. 66 ; 28 Mo. 
 339 ; the administrator or executor of a de- 
 ceased person ; Story, Pr. Notes, § 304 ; the 
 holder of the paper as collateral security ; 14 
 C. B. N. s. 728. It has been held that notice 
 by a stranger, pretending to be the holder, 
 may be ratified by the real holder ; 2 C. & K. 
 1016. 
 
 The notice must be forwarded as early as by 
 a mail of the day after the dishonor which 
 does not start at an unreasonably early hour ; 
 9 N. H. 558 ; 2 Harr. N. J. 587 ; 24 Me. 
 458; 2 R. I. 437 ; 24 Penn. 148; 4 N. J. 
 71 ; 1 Ohio St. 206 ; 9 Miss. 261, 644; 13 
 Ark. 645 ; 7 Gill & J. 78 ; 4 Wash. C. C. 
 464 ; 2 Stor. 416 ; 4 Bingh. 715. 
 
 Notice of dishonor may be excused : where 
 it is prevented by inevitable accident, or over- 
 whelming calamity ; by the prevalence of a 
 malignant disease which suspends the opera- 
 tions of trade ; by war, blockade, invasion or 
 occupation by the enemy ; by the interdiction 
 of commerce between the countries from which 
 or to which the notice is to be sent ; by the 
 impracticability of giving notice, by reason of 
 the party entitled thereto having absconded, 
 or having no fixed place of residence, or his 
 place of business or residence being unknown, 
 and incapable of being ascertained upon rea- 
 sonable inquiries. These are the excuses of 
 
NOTICE TO PLEAD 
 
 310 
 
 NOTICE TO QUIT 
 
 a general nature given by Story, on Pr. Notes 
 and on Bills. Special excuses are : That the 
 note was for the accommodation of the indorser 
 only ; an original agreement on the part of the 
 indorser, made with the maker or other party, 
 at all events to pay the note at maturity ; the 
 receiving security or indemnity from the 
 maker, or other party for whose benefit the 
 note is made, by the indorser, or money to 
 take it up with ; receiving the note as coUa^ 
 teral security for another debt where the debt- 
 or is no party to the note, or, if a party has 
 not indorsed it ; an original agreement by the 
 indorser to dispense with notice ; an order or 
 direction from the makee to the maker not to 
 
 Say the note at maturity. See Story, Prom. 
 Totes, §§ 293, 367. 
 
 Consult Bayley, Byles, Chitty, Story, on 
 Bills of Exchange ; Story, Promissory N otes ; 
 Parsons, Notes & Bills ; Daniel, Negotiable 
 Instruments ; Wade, Notice. 
 
 NOTICE TO PLEAD. Written notice 
 to defendant, requiring him to plead within a 
 certain time. It must always be given before 
 plaintiff can sign judgment for want of a 
 plea. 1 Chitty, Archb. Pr. Prent. ed. 221. 
 Notice to plead, indorsed on the declaration 
 or delivered separately, is sufficient without 
 demanding plea or rule to plead, in England, 
 by statute. See 3 Chitty, Stat. 515. 
 
 NOTICE OF PROTEST. A notice 
 given to a drawer or indorser of a bill, or to an 
 indorser of a note, by a prior party that the 
 bill has been protested for refusal of payment 
 or acceptance. See Notice op Dishonok. 
 
 NOTICE TO PHODUCE PAPERS. 
 
 In Practice. When it is intended to give 
 secondary evidence of a written instrument 
 or paper which is in the possession of the op- 
 posite party, it is, in general, requisite to give 
 him notice to produce the same on the trial 
 of the cause, before such secondary evidence 
 can be admitted. 
 
 To this general rule there are some excep- 
 tions : first, in cases where, from the nature 
 of the proceedings, the party in possession of 
 the instrument has notice that he is charged 
 with the possession of it, as in the case 
 of trover for a bond; 14 East, 274; 4 Taunt. 
 865; 6 S. & R. 154; 4 Wend. 626; 1 
 Campb. 143 ; second, where the party in pos- 
 session has obtained the instrument by fraud ; 
 4 Esp. 256. See 1 Phill. Ev. 425 ; 1 Stark. 
 Ev. 362 ; Rose. Civ. Ev. 4. 
 
 In general, a notice to produce papers 
 ought to be given in writing, and state the 
 title of the cause in which it is proposed to 
 use the papers or instruments required ; 2 
 Stark. 19. It seems, however, that the notice 
 may be by parol ; 1 Campb. 440. It must 
 describe with sufficient certainty the papers 
 or instruments called for, and must not be 
 too general and by that means be uncertain : 
 Ry. & M. 341 ; M'Cl. & Y. 1 39. 
 
 The notice may be given to the party him- 
 self, or to his attorney ; 2 Term, 203, n. ; 3 
 id. 306 ; Ry. & M. 327 ; 1 Mood. «e M. 96. 
 
 The notice must be served a reasonable 
 
 time before trial, so as to afford an 
 
 oppor- 
 
 tunity to the party to search for and produce 
 the instrument or paper in question ; 1 Stark 
 283 ; Ry. & M. 47, 327 ; 1 Mood. & M sg' 
 335, n. ' 
 
 When a notice to produce an instmment 
 or paper in the cause has been proved, and it 
 is also proved that such paper or instrument 
 was, at the time of the notice, in the hands 
 of the party or his privy, and upon request 
 in court he refuses or neglects to produce it 
 the party having given such notice and made 
 such proof will be entitled to give secondary 
 evidence of such paper or instrument tius 
 withheld. 
 
 NOTICE TO QUIT. A request from a 
 landlord to his tenant to quit the premises 
 leased, and to give possession of the same to 
 him. the landlord, at a time therein men- 
 tioned. 3 Wend. 337, 357; 7 Halst. 99. 
 
 The form of the notice. The notice or de. 
 mand of possession should contain a request 
 from the landlord to the tenant or person in 
 possession to quit the premises which beholds 
 from the landlord (which premises ought to 
 be particularly described, as being situate in 
 the street and city or place, or township and 
 county), and to deliver them to him on or be- 
 fore a day certain, — generally, when the lease 
 is for a year, the same day of the year on 
 which the lease commences. But where 
 there is some doubt as to the time when tbe 
 lease is to expire, it is proper to add, "or at 
 the expiration of the current year of your 
 tenancy." 2 Esp. 589. It should he dated, 
 signed by the landlord himself, or by some 
 person in his name, who has been authorized 
 by him, and directed to the tenant. The 
 notice must include all the premises under 
 the same demise ; for the landlord cannot 
 determine the tenancy as to part of the pre- 
 mises demised and continue it as to the resi- 
 due. Eor the purpose of bringing an eject- 
 ment, it is not necessary that the notice should 
 be in writing, except when required to be so 
 under an express agreement between the par- 
 ties ; Comyns, Dig. Estate by Grant (6 Jl, 
 n. p.) ; 2 Campb. 96 ; 2 M. & R. 439. But 
 it is the general and safest practice to give 
 written notices ; and it is a precaution which 
 should always, when possible, be observed, 
 as it prevents mistakes and renders the evi- 
 dence certain and correct. Care should be 
 taken that the words of a notice be clear and 
 decisive, without ambiguity or giving an al- 
 ternative to the tenant ; for if it be really 
 ambiguous or optional, it will be invalid; 
 Adams, Ej. 122. 
 
 As to the person hy whom the notice is to he 
 given. It must be given by the person intff- 
 ested in the preniises, or Lis agent property 
 appointed; Adams, Ej. 120. See 3 C. B. 
 215. As the tenant is to act upon the notice 
 at the time it is given to him, it is necessary 
 that it should be such as he may act upon 
 with security, and should, therefore, be bind- 
 ing upon aU the parties concerned at the tune 
 
NOTICE TO QUIT 
 
 311 
 
 NOTICE TO QUIT 
 
 it is given. Where, therefore, several per- 
 sons are jointly interested in the premises, 
 they need not all join in the notice ; but, if 
 any of them be not a party at the time, no 
 subsequent ratification by him will be suffi- 
 cient by relation to render the notice valid. But 
 see 5 East, 461 ; 2 Phill. Ev. 184 ; 2 Esp. 
 677; 1 B. & Ad. 135 ; 7 M. & W. 139. But 
 if the notice be given by an agent, it is suffi- 
 cient if his authority is afterwards recognized; 
 3 B. & Aid. 689. But see 10 B. & C. G21. 
 
 As to the person to whom the notice should 
 he gimn. W hen the relation of landlord and 
 tenant subsists, difficulties can seldom occur 
 as to the party upon whom the notice should 
 be served. It should invariably be given to 
 the tenant of the party serving the notice not- 
 withstanding a part may have been underlet 
 or the whole of the premises may have been 
 assigned; Adams, Ej. 119; 5 B. & P. 330; 
 14 East, 234 ; 6 B. & C. 41 ; unless, perhaps, 
 the lessor has recognized the sub-tenant as his 
 tenant; 10 Johns. 270. When the premises 
 are in possession of two or more as joint ten- 
 ants or tenants in common, the notice should 
 be to all. A notice addressed to all and served 
 upon one only will, however, be a good no- 
 tice; Adams, Ej. 123. 
 
 As to the mode of serving the notice. The 
 person about serving the notice should make 
 two copies of it, both signed by the proper 
 person, then procure one or more respectable 
 persons for witnesses, to whom he should 
 show the copies, who, upon comparing them 
 and finding them alike, are to go with the per- 
 son who is to serve the notice. The person 
 serving the notice then, in their presence, 
 should deliver one of these copies to the ten- 
 ant personally, or to one of his family, at his 
 usual place of abode, although -the same be 
 not upon the demised premises ; 2 Phill. Ev. 
 185 ; or serve it upon the person in possession ; 
 and where the tenant is not in possession, a 
 copy may be served on him, if he can be 
 found, and another on the person in possession. 
 The witnesses should then, for the sake of se- 
 curity, sign their names on the back of the 
 copy of the notice retained, or otherwise mark 
 it so as to identify it ; and they should also 
 state the manner in which the notice was 
 served. In the case of a joint demise to two 
 defendants, of whom one alone resided upon 
 the premises, proof of the service of the notice 
 upon him has been held to be sufficient ground 
 for the jury to presume that the notice so 
 served upon the premises has reached the 
 other who resided in another place ; 7 East, 
 553; 5 Esp. 196. 
 
 At what time it must be served. At com- 
 mon law it must be given six calendar months 
 before the expiration of the lease ; 1 Term, 
 159; 3 id. 13; 8 Cow. 13 ; 1 Vt. 311 ; 1 
 Dana, 30; 5 Yerg. 431 ; 4 Ired. 291 ; 17 
 Mass. 287 ; see 2 Pick. 70, 71 ; 8 S. & K. 
 458 ; 2 Rich. 346 ; and three months is the 
 common time under statutory regulations ; 
 and where the letting is for a shorter period 
 the length of notice is regulated by the time 
 
 of letting ; 6 Bing. 362 ; 5 Cush. 563 ; 23 
 Wend. 616. Difficulties sometimes arise as to 
 the period of the commencement of the ten- 
 ancy ; and when a regular notice to quit on 
 any particular day is given, and the time when 
 the term began is unknown, the eflTect of such 
 notice, as to its being evidence or not of the 
 commencement of the tenancy, will depend 
 upon the particular circumstances of its de- 
 livery : if the tenant, having been applied to 
 by his landlord respecting the time of the 
 commencement of the tenancy, has informed 
 him it began on a certain day, and in conse- 
 quence of such information a notice to quit 
 on that day is given at a subsequent period, 
 the tenant is concluded by his act, and will not 
 be permitted to prove tliat in point of fact the 
 tenancy has a difl'erent commencement ; nor 
 is it material whether the information be the 
 result of design or ignorance, as the landlord 
 is in both instances equally led into error ; 
 Adams, Ej. 130; 2 Esp. 635 ; 2 Phill. Ev. 
 186. In like manner, if the tenant at the 
 time of delivery of the notice assent to the 
 terms of it, it will waive any irregularity as 
 to the period of its expiration ; but such as- 
 sent must be strictly proved; 4 Term, 361 ; 
 2 Phill. Ev. 183. When the landlord is igno- 
 rant of the time when the term commenced, a 
 notice to quit may be given not specifying any 
 particular day, but ordering the tenant in gen- 
 eral terms to quit and deliver up the possession 
 of the premises at the end of the current year 
 of his tenancy thereof, which shall expire next 
 after the end of three months from the date 
 of the notice. See 2 Esp. 589. 
 
 What will amount to a tvaiver of the no- 
 tice. The acceptance of rent accruing sub- 
 sequently to the expiration of the notice is 
 the most usual means by which a waiver of 
 it may be produced ; but the acceptance of 
 such rent is open to explanation ; and it is 
 the province of the jury to decide with what 
 views and under what circumstances the rent 
 is paid and received; Adams, Ej. 139; 2 
 Campb. 387. If the money be taken with 
 an express declaration that the notice is not 
 thereby intended to be waived, or accom- 
 panied by other circumstances wliich may in- 
 duce an opinion that the landlord did not 
 intend to continue the tenancy, no waiver 
 will be produced by the acceptance : the rent 
 must be paid and received as rent, or the 
 notice will remain in force ; Cowp. 243. The 
 notice may also be waived by other acts of 
 the landlord ; but they are generally open to 
 explanation, and the particular act will or 
 will not be a waiver of the notice, according 
 to the circumstances which attend it ; 2 East, 
 236; 10 id. 13; 1 Term, 53. It has been 
 held that a notice to quit at the end of a cer- 
 tain year is not waived by the lansllord's per- 
 mitting the tenant to remain in possession an 
 entire year after the expiration of the notice, 
 notwithstanding the tenant held by an im- 
 proving lease, — that is, to clear and fence the 
 land and pay the taxes ; 1 Binn. 333. In 
 cases, however, where the act of the landlord 
 
KOTING 
 
 312 
 
 NOVATION 
 
 cannot be qualified, but must of necessity be 
 taken as a confirmation of the tenancy, as if 
 he distrain for rent accruing after the expira- 
 tion of the notice, or recover in an action for 
 use and occupation, the notice of course will 
 be waived ; Adams, Ej. 144 ; 1 H. Blackst. 
 311 ; 6 Term, 219 ; 19 Wend. 391. See 13 
 
 C. B. 178. 
 
 NOTING. A term denoting the act of a 
 notary in minuting on a bill of exchange, 
 after it has been presented for acceptance or 
 payment, the initials of his name, the date of 
 the day, month, and year when such present- 
 ment was made, and the reason, if any has 
 been assigned, for non-acceptance or non- 
 payment, together with his charge. The 
 noting is not indispensable, it being only a 
 part of the protest; it will not supply the 
 protest. 4 Terra, 175. 
 
 NOTOUR. In Scotch Law. Open ; 
 notorious. A notour bankrupt is a debtor 
 who, being under diligence by horning and 
 caption of his creditor, retires to sanctuary, 
 or absconds, or defends by force, and is after- 
 wards found insolvent by court of sessions. 
 Bell, Diet. ; Act of 1696, c. 5; Burton, Law 
 of Scotl. 601. 
 
 NOVA CtTSTOMA. An imposition or 
 duty. See Antiqua Customa. 
 
 NOVA SCOTIA. A province of British 
 North America, and now, by the "British 
 North American Act,- 1867," a part of the 
 Dominion of Canada. 
 
 It includes Nova Scotia proper, a peninsula 
 two hundred and eighty miles long and from 
 fifty to one hundred miles wide, trending E. N. 
 E., and connected with the province of New 
 Brunswicli by an isthmus only eight miles wide 
 in its widest part, and the island of Cape Breton, 
 separated from the eastern extremity of Nova 
 Scotia proper by the Gut of Canso. Nova Scotia 
 proper lies between latitude 43° 25' and 46° 
 north, and long. 610 and 66° 30' west. 
 
 England founds her claim to the original dis- 
 covery of this province upon the patent granted 
 by Queen Elizabeth to Sir Humphrey Gilbert, A. 
 
 D. 1578. 
 
 This was followed by De la Eoehe's unfortunate 
 attempt to colonize the Isle of Sable. 
 
 De Monts, having in 1603 received an appoint- 
 ment from Henri IV, of Prance, sailed the fol- 
 lowing year, with Champlain, De Poutrincourt, 
 and others. 
 
 After exploring the outer shore of the penin- 
 sula, having entered the bay of Eundy, De Pou- 
 trincourt settled Port Royal, A. D. 1605, — the first 
 permanent settlement in British North America. 
 Fi-om this time the English began to assert their 
 claims, and colonists from Virginia expelled the 
 colony of De Monts. 
 
 The French regained possession, but only to be 
 again expelled by the strong force sent against 
 them by Cromwell, A. d. 1654. 
 
 Thirteen years later, England ceded the pro- 
 vince to France by the treaty of Breda, A. D. 
 1667 ; but in the new wars it was again ravaged 
 by the English, who reacquired it in A. n. 1713 ; 
 and in 1749 it was formally colonized by the 
 British Government. 
 
 The French colonists, having resisted and 
 joined the Indians, were defeated by the British, 
 and their stronghold, Louisburgh on Cape Bre- 
 
 ton, was taken by Massachusetts colonists actin? 
 under a plan suggested by a Massachusetts law 
 yer. 
 
 In 1758 the province received its constitution 
 and in 1763 France, by the treaty of S' 
 ceded all rights whatsoever. ' 
 
 In 1784 New Brunswick and Cape Breton were 
 separated from Nova Scotia ; but Cape Breton 
 was reattached in 1819. ° 
 
 In 1867 it became a province of the Dominlou 
 of Canada. See supra ; Canada. 
 
 NOVA STATTJTA. New statutes. A 
 term including all statutes passed in the reiga 
 of Edw. in. and subsequently. Vetera 
 Statuta. 
 
 NOV-iE NARRATIONES. "Newcounts 
 or talys." _ A book of such pleadings as 
 were then in use, published in the reign irf 
 Edw. III. 3 Bla. Com. 297; 8 Eeeve, 
 Hist. Eng. Law, 439. 
 
 NOVATION (from Lat. novare, novug, 
 new). The substitution of a new obligation 
 for an old one, which is thereby extinguished. 
 
 Novation takes place when a debtor con- 
 tracts towards his creditor a new debt that is 
 substituted for the old one that is extinguished. 
 French Civil Code, art. 1271. It is one of 
 the modes by which debts become extinct. 
 
 In Civil Xia-w. There are three kinds of 
 novation. 
 
 First, where the debtor and creditor re- 
 main the same, but a new debt takes the place 
 ef the old one. Here, either the subject- 
 matter of the debt may be changed, or the 
 conditions of time, place, etc. of payment. 
 
 Second, where the debt remains the same, 
 but a new debtor is substituted for the old. 
 This novation may be made without the in- 
 tervention or privity of the old debtor (in 
 this case the new agreement is called expro- 
 missio, and the new debtor exjiromissor), or 
 by the debtor's transmission of his debt to 
 another, who accepts the obligation and is 
 himself accepted by the creditor. This trans- 
 action is called delegatio. Domat lays down 
 the essential distinction between a delegation 
 and any other novation, thus : that the former 
 demands the consent of all three parties, but 
 the latter that only of the two parties to the 
 new debt. 
 
 Third, where the debt remains the same, 
 but a new creditor is substituted for the old. 
 This also is called delegatio, for the reason ad- 
 duced above, to wit : that all three parties 
 must assent to the new bargain. It differs 
 from the cessio nominis of the civil law by 
 completely cancelling the old debt, while the 
 cessio nominis leaves the creditor a claim for 
 any balance due after assignment. 
 
 In every novation the old debt is wholly 
 extinguished by the new. To eifect such a 
 transformation, several things are requisite. 
 
 First, there must be an anterior obligatton 
 of some sort, to serve as a basis for the new 
 contract. If the old debt be void, as being, 
 e. g., contra bonos mores, then the new debt 
 is likewise void ; because the consideration for 
 the pretended novation is null. But if the 
 old contract is only voidable, in some cases 
 
NOVATION 
 
 313 
 
 NOVATION 
 
 the new one may be good, operating as a 
 ratification of the old. Moreover, if the old 
 debt be conditional, the new is also condi- 
 tional, unless made otherwise by special 
 agreement, — which agreement is rarely omit- 
 ted. 
 
 Second, the parties innovating must consent 
 thereto. In the modern civil law, every no- 
 vation is voluntary. Anciently, a novation 
 not having this voluntary element was in use. 
 And not only consent is exacted, but a capa- 
 city to consent. But capacity to make or re- 
 ceive an absolute payment does not of itself 
 authorize an agreement to innovate. 
 
 Third, there must be an express intention 
 to innovate, — the animus novandi. A nova- 
 tion is never presumed. If an intent to des- 
 troy the old debt be not proved, two obliga^ 
 tions now bind the debtor, — the old and the 
 new. Conversely, if the new contract be in- 
 valid, without fraud in the transaction, the 
 creditor has now lost all remedy. The ante- 
 rior obligation is destroyed without being re- 
 placed by a new one. 
 
 An important rule of novation is that the ex- 
 tinction of the debt destroys also all rights and 
 liens appertaining thereto. Hence, if any hypo- 
 thecations be attached to the ancient agreement, 
 they are cancelled by the new one, unless express 
 words retain them. The secoud contract is 
 simple and independent, and upon its terms is 
 the action ex stipulatu to be brought. Hence, 
 too, the new parties cannot avail themselves of 
 defences, claims, and set-offs which would have 
 prevailed between the old parties. 
 
 Obviously, a single creditor may make a nova- 
 tion with two or more debtors who are each liable 
 in solido. In this case any onedebtor may make 
 the contract to innovate ; and if such a contract 
 be completed, all his fellow-debtors are dis- 
 charged with him from the prior obligation. 
 Therefore Pothier says that, under the rule that 
 novation cancels all obligations subsidiary to the 
 main one, sureties are freed by a novation con- 
 tracted by their principal. The creditor must 
 specially stipulate that co-debtors and guaran- 
 tors shall consent to be bound by the novation, 
 if he wish to hold them liable. If they do not 
 consent to such novation, the parties all remain, 
 as before, bound under the old debt. So in 
 Louisiana the debt due to a community creditor 
 is not necessarily novated by his taking the indi- 
 vidual note of the surviving spouse, with mort- 
 gages to secure its payment. 11 La. An. 687. 
 
 It follows that the new debtor, in a delegation, 
 can claim nothing under the old contract, since 
 he has consented to the destruction of that 
 contract. For the same reason, a creditor can- 
 not proceed against the discharged debtor. And 
 this is true though the new debtor should be- 
 come insolvent while the old remains solvent. 
 And even though at the timeof the novation the 
 new debtor was insolvent, still the creditor has 
 lost his remedy against the old debtor. But the 
 rule, no doubt, applies only to a iona flde dele- 
 gation. And a suit brought by the creditor 
 against a delegated debtor is not evidence of in- 
 tention to discharge the original debtor. 11 La. 
 An. 93. 
 
 In a case of mistake, the rule is this : If the 
 new debtor agree to be substituted for the old, 
 under the belief that he himself owes so much 
 to the discharged debtor, although he do not in 
 fact owe the amount, yet he is bound to the 
 creditor on the novation ; because the latter has 
 
 been induced to discharge the old debtor by the 
 contract of the new, and will receive only his 
 due in holding the new debtor bound. But 
 where the supposed creditor had really no claim 
 upon the original debtor, the substitute contracts 
 no obligation with him ; and even though he in- 
 tended to be bound, yet he may plead the fact of 
 no former debt against any demand of the cred- 
 itor, as soon as this fact is made known to him. 
 
 A novation may be made dependent on a con- 
 dition. In that case the parties remain bound, 
 as before, until the condition is fulfilled. The 
 new debtor is not freed from a conditional nova- 
 tion as to the creditor until the condition hap- 
 pens ; and he is not liable in an action to the old 
 debtor until it is performed. 
 
 Any obligation which can be destroyed at all 
 may be destroyed by novation. Thus, legacies, 
 judgments, etc., with mortgages, guarantees, 
 and similar accessories, are as much the subjects 
 of novation as simple contract debts. But a 
 covenant by the obligee of a bond not to sue the 
 obligor within a certain time is not an example 
 of the civil-law novation. The agreement was 
 not a release, not a substituted contract, but 
 a covenant merely, for the breach of which the 
 obligee has his action ; 19 Johns. 139. 
 
 The preceding summary is founded on Massi, 
 Droit Commercial, liv. v. tit. 1, ch. 5, § 2; 
 Mackeldey, RBmischen Rechts, and Pothier, 
 Traits des Obligations, pt. 3, ch. 3. See, also, 
 Domat's Civil Law, trans, by Dr. Strahan (Cush- 
 ing's ed.), part. i. b. iv. tit. 3, i; and Burge, 
 Suretyship, b. 2, c. 5, Am. ed. pp. 168-190. 
 
 At Common Law. The common-law 
 doctrine of novation mainly agrees with that 
 of the civil law, but in some parts differs 
 from it. 
 
 The term novation is rarely employed. The 
 usual common-law equivalent is assignment, and 
 sometimes merger. Still, this form of contract 
 found its way into common-law treatises as early 
 as Fleta's day, by whom it was called innMvatio. 
 Item, per innovationem, ut si transfusa sit obliga- 
 tio de una persona in aliam, qua in se susceperit 
 oUigationem. Fleta, lib. 2, c. 60, § 12. The 
 same words here quoted are also in Bracton, lib. 
 3, c. 2, § 13, but we have 7iovation,ein for innova- 
 tionem. In England, recently, the term nova- 
 tion has been revived in some cases. 
 
 A case of novation is put in Tatlock vs. Harris, 
 3 Term, 180. "Suppose A owes B £100, and B 
 owes C £100, and the three meet, and it is agreed 
 between them that A shall pay C the £100 : B's 
 debt is extinguished, and C may recover that 
 sum against A." 
 
 The subject of novation has been much before 
 the courts in reference to the transfers of the 
 business of life assurance companies. In order 
 to constitute a novation the old obligation must 
 be discharged ; and it has often been the interest 
 of claimants on the transferor company, where 
 the transferee company has become insolvent, to 
 contend that there is no " novation," but that the 
 old obligation is still in force. In England the 
 questions which have arisen on this matter are 
 for the most part set at rest by the stat. 35 & 36 
 Vict. c. 41, s. 7, providing that no policy-holder 
 shall be deemed to have abandoned any claim 
 against the original company, and to have ac- 
 cepted In lieu thereof the liability of the new 
 company, unless such abandonment and accept- 
 ance shall have been signified by some writing 
 signed by him, or by his agent Uiwfully author- 
 ized. Moz. & W. 
 
 There must always be a debt once existing 
 and now cancelled, to serve as a consideration 
 for the new liability. The action in all cases 
 
NOVATION 
 
 314 
 
 NOVATION 
 
 is brought on the new agreement. But in 
 order to give a right of action there must be 
 an extinguishment of the original debt ; 4 B. 
 & C. 163 ; 1 M. & W. 124 ; 14 111. 34 ; 4 La. 
 An. 281 ; 15 N. H. 129. 
 
 No mere agreement for the transformation 
 of one contract into another is of effect until 
 actually carried into execution and the eon- 
 sent of the parties thereto obtained. A good 
 novation is an accord executed ; 5 B. & Ad. 
 925 ; 3 N. & M'C. 171 ; 1 Stra. 426 ; 15 M. 
 & W. 23; see 1 Ad. & E. 106; 2 Campb. 
 383 ; 1 La. 410 ; 1 Exch. 601 ; 24 Conn. 
 621 ; otherwise, if there be no satisfaction ; 
 2 Scott, N. R. 938. 
 
 But where an agreement is entered into by 
 deed, that deed gives in itself a substantial 
 cause of action ; and the giving such deed 
 may be a sufficient accord and satisfaction for 
 a simple contract debt; Co. Litt. 212 b; 1 
 Burr. 9; 2 Rich. 608; 3 W. & S. 276; 1 
 Hill, N. Y. 567. See 1 Mass. 503; 11 
 Wend. 321. 
 
 In the civil law delegatio, no new creditor 
 could be substituted without the debtor's con- 
 sent. This rule is observed in the common 
 law. Hence, without this consent and promise 
 to pay, a new creditor can have no action 
 against the debtor, because there is no privity 
 oi contract between them. To establish such 
 privity there must be a new promise founded 
 on sufficient consideration ; 14 East, 582 ; 3 
 Mer. 652; 5 Wheat. 277; 12 Ga. 406; 15 
 id. 486 ; 5 Ad. & E. 115 ; 7 Harr. & J. 213, 
 219; 21 Me. 484. 
 
 But in equity a creditor may assign his 
 claim fully to another without any interven- 
 tion of the debtor ; and the assignee is not 
 even compelled to sue in his assignor's name ; 
 14 Conn. 141 ; 3 Swanst. 392 ; 4 Rand. 392 ; 
 Mart. & Y. 378. 
 
 The extinction of the prior debt is consider- 
 ation enough to support a novation. If A 
 holds B's note, payable to A, and assigns this 
 for value to C, B is by such transfer released 
 from his promise to A, and this is sufficient 
 consideration to sustain his promise to C ; 1 
 Pars. Contr. ch. 13 ; 2 Barb. 349. And a 
 consideration need not be expressed in the 
 contract of novation ; though one must be 
 proved in order to defend in a suit brought by 
 creditors of the assignor. 
 
 When assent or consideration is wanting, 
 the novation operates only as a species of 
 collateral security. The transferee cannot sue 
 in his own name, and will be subject to all 
 the equitable defences which the debtor had 
 against the original creditor. This assent on 
 the debtor's part is said to be essential, for 
 the reason that he may have an account with 
 his assignor, and he shall not be barred of his 
 right to a set-off. Still, if any thing like an 
 assent on the part of a holder of money can 
 be inferred, he will be considered as the 
 debtor; 4 Esp. 203; 6 Tex. 163; If the 
 debtor's assent be not secured, the order of 
 transfer may be revoked before it is acted on. 
 
 In a delegation, if the old debtor agree to 
 
 provide a substitute, he must put his creditor 
 into such a position that the latter can claim 
 full satisfaction from the delegated debtor or 
 otherwise the original liability remains and 
 there is no novation ; 19 Mo. 322, 637 See 
 
 3 B. & Aid. 64 ; 5 id. 925 ; 5 B. & C. 196 • 
 
 4 Esp. 89 ; 4 Price, 200 ; 2 M. & W. 484 • 6 
 Cra. 253; 12 Johns. 409; 7 td. 311 ; 21 
 Wend. 450. 
 
 The existing Louisiana law is based upon 
 the doctrines of the Civil Code considered 
 above. It is held in numer6us cases that 
 " novation is not to be presumed:" hence the 
 receipt of a bill or note is not necessarily a 
 novation, or extinguishment of the debt for 
 which it is {^ven. An express declaration to 
 that effect is required in most of our states, 
 or else acts tantamount to a declaration. An 
 intention to discharge the old debt must be 
 shown in all cases ; and this intention is suffi- 
 cient to work a novation ; 4 La. An. 329, 
 543 ; 6 id. 669 ; 9 id. 228, 497 ; 12 id. 299. 
 " The delegation by which the debtor gives to 
 the creditor another debtor, who obliges him. 
 self towards such creditor, does not operate a 
 novation unless the creditor has expressly de- 
 clared his intention to discharge the debtor 
 who made the delegation." 13 La. An. 238. 
 
 One of the most common of modem nova- 
 tions is the surrender and destruction of an 
 old promissory note or bill of exchange, and 
 the receipt of a new one in payment thereof. 
 The rules of novation apply as completely to 
 debts evidenced by mercantile paper as to all 
 other obligations ; Story, Bills, 8 441 ; Pothier, 
 de Change, n. 189 ; Thorns. Bills, ch. 1, §3. 
 Hence, everywhere, if the parties intend that 
 a promissory note or bill shall be absolute pay- 
 ment, it will be so considered ; 10 Ad. & E. 
 593; 4 Mas. 336; 1 Rich. 37, 112; 9 Johns. 
 310; 13Vt. 452. ■ In some states, the receipt 
 of a negotiable promissory note is prima facie 
 payment of the debt upon which it is given, 
 and has an action upon the account unless the 
 presumption is controverted ; 1 2 Mass. 237 ; 
 12 Pick. 268 ; 5 Cush. 158; 8 Me. 298; 29 
 Vt. 32. " If a creditor gives a receipt for a 
 draft in payment of his account, the debt is 
 novated." 2 La. 109. But see the cases 
 cited supra for the full Louisiana law. la 
 most states, however, the rule is, as in Eng- 
 land, that, whether the debt be pre-existing 
 or arise at the time of giving the note, the 
 receipt of a promissory note is prima facie a 
 conditional payment only, and works no nova- 
 tion. 
 
 It is payment only on fulfilment of the con- 
 dition, i. e. when the note is paid; SBeav. 
 415 ; 40 E. L. & Eq. 625 ; 6 Cra. 264 ; 2 
 Johns. Cas. 438 ; 15 Johns. 224, 247 ; 27 H- 
 H. 253; 11 Gill & J. 416; 4 R. L 383; 8 
 Cal. 501 ; 2 Speers, 438 ; 2 Rich. 244; 15 b. 
 & R. 162. 
 
 If a vendor transfer his vendee's note, he 
 can only sue on the original contract when 
 he gets back the note, and has it in h's P"'*' 
 to return it to his vendee ; 1 Pet. C. C. w, 
 4 Rich. 59. See Discharge; PAYMESii 
 
NOVEL ASSIGNMENT 
 
 815 
 
 NUDUM PACTUM 
 
 10 Pet. 332 ; 8 Cow. 390 j 6 W. & S. 165 ; 1 
 Hill, N. Y. 516; 3 Wash. C. C. 396; 5 Day, 
 511; 9 "Watts, 278; 10 Md. 27; 1 Sneed, 
 501; Hempst. 431; 27 Ala. N. s. 254; 
 Dixon ou Substituted Liabilities. 
 
 NOVEL ASSIGNMENT. See New 
 Assignment. 
 
 NOVEL DISSEISIN. The name of an 
 old remedy -which was given for a new or re- 
 cent disseisin. 
 
 When tenant in fee-simple, fee-tail, or for 
 term of life, was put out and disseised of his 
 lands or tenements, rents, and the like, he 
 might sue out a writ of assize or novel dis- 
 seisin ; and if, upon trial, he could prove his 
 title and his actual seisin, and the disseisin by 
 the present tenant, he was entitled to have 
 judgment to recover his seisin and damages for 
 the injury sustained ; 3 Bla. Com. 187. This 
 remedy is obsolete. 
 
 NOVELLiB 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 Jus- 
 tinian law. This collection contains one hun- 
 dred and thirteen Novels, written originally 
 in Greek, and afterwards, in 1560, translated 
 into Latin by Agilasus. 
 
 NOVELS, NOVBLLiE CONSTITTT- 
 TIONES. In Civil Law. The name 
 given to the constitutions or laws of Justinian 
 and his immediate successors, which were 
 promulgated soon after the Code of Justi- 
 nian. 
 
 It appears to have been the intention of 
 Justinian, after the completion of the second 
 and revised edition of the Code, to supply 
 what had not been foreseen in the preceding 
 laws, together with any necessary amend- 
 ments or alterations, not by revising the Code, 
 but by supplementary laws. Such laws he 
 promulgated from time to time ; but no offi- 
 cial compilation of them is known to have 
 been made until after his death, when his laws 
 159 in number, with those of the reigns of 
 Justin II. and Tiberias, nine in number, were 
 collected, together with some local edicts, un- 
 der this name. They belong to various times 
 between 535 and 565 a.d. 
 
 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 used that 
 name. Some of the acts of Theodosius, 
 Valentinian, Leo, Severus, Authennius, and 
 others, were also called Novels. But the 
 Novels of the emperors who preceded Justi- 
 nian had not the force of law after the legis- 
 lation of that emperor. Those Novels are 
 not, however, entirely useless ; because, the 
 Code of Justinian having been compiled to a 
 considerable extent from the Theodosian Code 
 and the earlier Novels, the latter frequently 
 remove doubts which arise on the construction 
 of the Code. 
 
 The original language of the Novels was 
 for the most part Greek ; but they are repre- 
 
 sented in the Corpus Juris Civilis by a Latin 
 translation of 134 of them. These 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 indi- 
 vidual of Constantinople ; but they all had 
 the force and authority of law. 
 
 The 118th Novel is the foundation and 
 groundwork of the English Statute of Distri- 
 bution of Intestates' Effects, which has been 
 copied in many states of the Union. See 1 
 P. Wms. 27 ; -Prec. in Chanc. 593. 
 
 NOVELTY. In Patent Law. Every 
 device for which a patent is sought should 
 have, to some extent, the attributes of nov- 
 elty. It is said to be difficult to lay down a 
 rule as to novelty which will meet all cases. 
 The subject matter of a patent is said to be new 
 when it is substantially different from what 
 has gone before; Curtis, Pat. § 41. In pat- 
 ents for a composition of matter the test is 
 said to be not whether the materials of which 
 the combination is made are new, but whether 
 the combination is new. See Curtis, Pat. ; 
 12 O. G. 351 ; 2 Fish. 120. 
 
 NOVUS HO^O (Lat. 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. 
 
 NOXA (Lat.). In Civil Law. Damage 
 resulting from an offence committed by an 
 irresponsible agent. The oflence itself. The 
 punishment for the offence. The slave or 
 animal who did the offence, and who is de- 
 livered up to the person aggrieved (dalur 
 noxce) unless the owner choose to pay the 
 damage. The right of action is against who- 
 ever becomes the possessor of the slave or 
 animal (noxa caput sequitur). D. de furt. 
 L. 41 ; Vicat, Voc. Jur. ; Calv. Lex. 
 
 NOXAL ACTION. See Noxa. 
 
 NUBILIS (Lat.). In 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. 
 
 A nude contract, nudum pactum, is one 
 without a consideration. Nude matter is a 
 bare allegation of a thing done, without any 
 evidence of it. 
 
 NUDUM PACTUM. A contract made 
 without consideration. 
 
 It is a mere agreement, without the requisites 
 necessary to confer upon it a legal ooligation to 
 perform. 3 McLean, 330 ; 2 Denio, 403 ; 6 Ired. 
 480 ; 1 Strobh. 839 ; 1 Ga. 294 ; 1 Dougl. Mich. 
 188. The term, and the rule which decides upon 
 nullity of its effects, are borrowed from the civil 
 law ; yet the common law has not in any degree 
 been influenced by the notions of the civil law 
 in defining what constitutes a nudum pactum. 
 Dig. 19. 5. 5. See, on this subject, a learned 
 note in Fonbl. Eq. 335, and 2 Kent, 364. Toul- 
 ller defines nudum pactum to be an agreement 
 not executed by one of the parties. Tom. 6, n. 
 18, page 10. 
 
 It is of no consequence whether the agree- 
 ment be oral or -smitten ; 7 Term, 350 ; 7 
 
NUISANCE 
 
 316 
 
 NUISANCE 
 
 Bro. P. C. 550 ; 4 Johns. 235 ; 5 Mass. 301, 
 392 ; 2 Day, 22 ; but a contract under seal 
 cannot be held a nudum pactum for lack of 
 consideration, since the seal imports consid- 
 eration; 2 B. & Aid. 551. See Consid- 
 eration ; Maxims, Ex nudo pacta ; 2 Bla. 
 Com. 445; 16 Vin. Abr. 16. 
 
 NUISANCE. Any thing that unlawfully 
 ■worketh hurt, inconvenience, or damage. 3 
 Bla. Com. 5, 216. 
 
 That class of wrongs that arise from the un- 
 reasonable, unwarrantable, or unlawful use 
 by a person of his own property, either real 
 or personal, or from his own improper, inde- 
 cent, or unlawful personal conduct, working 
 an obstruction of or to the right of another or 
 of the public, and producing such material 
 annoyance, inconvenience, discomfort, or hurt 
 that the law will presume a consequent dam- 
 age. Wood, Nuisance. 
 
 A private nuisance is anything done to the 
 hurt or annoyance of the lands, tenements, 
 or hereditaments of another. It produces 
 damage to but one or a few persons, and 
 cannot be said to be public ; 36 N. Y. 297 ; 
 35 N. H. 357 ; 5 E. I. 185"; Adams, Eq. 210 ; 
 
 3 Bla. Com. 215. 
 
 A. public or common nuisance is such an 
 inconvenience or troublesome offence as -an- 
 noys the whole community in general, and 
 not merely some particular person. It pro- 
 duces no special injury to one more than 
 another of the people; 1 Hawk. PI. Cr. 197 ; 
 
 4 Bla. Com. 166. 
 
 A mixed nuisance is one which, while pro-, 
 ducing injury to the public at large, does some 
 special damage to some individual or class of 
 individuals ; Wood, Nuisance, 22. 
 
 It is difficult to say what degree of annoy- 
 ance constitutes a nuisance. If a thing is 
 calculated to interfere with the comfortable 
 enjoj'ment of a man's house, it is a nuisance ; 
 3 Jur. N. s. 571. In relation to offensive 
 trades, it seems that when such a trade ren- 
 ders the enjoyment of life and property un- 
 comfortable it is a nuisance ; 1 Burr. 333 ; 5 
 Esp. 217 ; 13 Allen, 95 ; 116 E. C. L. 608 ; 
 45 Cal. 65 ; 35 Iowa, 221 ; for the neighbor- 
 hood have a right to pure and fresh air ; 2 
 C. & P. 485; 6 Bog. 61; 26 L. T. (n. e.) 
 277; 22 N. J. 26; 58 Penn. 275; 4 B. 
 & S. 608. 
 
 A thing may be a nuisance in one place 
 which is not so in another ; therefore the situ- 
 ation or locality of the nuisance must be con- 
 sidered. A tallow-chandler, for example, 
 setting up his business among other tallow- 
 chandlers, and increasing the noxious smells 
 of the neighborhood, is not guilty of setting 
 up a nuisance unless the annoyance is much 
 increased by the new manufactory; Peake, 
 91. Such an establishment might be a nuis- 
 ance in a thickly populated town of merchants 
 and mechanics where no such business was 
 carried on ; 8 Grant, 302. The same doe- 
 trine obtains as regards other trades or em- 
 ployments. Persons living in populous manu- 
 facturing towns must expect more noise, 
 
 smoke, and disturbance than those living else, 
 where, and the circumstances of every case 
 must govern; 21 Conn. 213; 68 Penn. 276- 
 54 Me. 272. Carrying on an offensive trade 
 for several years in a place remote from 
 buildings and public roads does not entitle the 
 owner to contmue it in the same place after 
 houses have been built and roads laid out in 
 the neighborhood, to the occupants of and 
 travellers upon which it is a nuisance. For- 
 merly the contrary doctrine obtained, on the 
 ground that the complainants were in fault in 
 coming to a nuisance. This doctrine is now 
 very properly exploded, as it is manifest that 
 an observance of it would interfere greatly 
 with the growth of towns and cities ; 6 Gray 
 473 ; 7 Blackf. 634 ; 2 C. & P. 483 ; 7 East' 
 191; 23 Wend. 446; 8 Phila. 10; 5 Scott, 
 500; 3 Barb. 167. The trade may be offensive 
 for noise ; 51 N. Y. 300 ; 10 L. T. (N. S.) 
 241 ; 2 Bing. 34 ; Keames, Sel. Dec. 175; L. 
 R. 4 Ch. App. 388 ; 2 Sim. n. s. 133 ; L. R, 
 8 Ch. App. 467; 2 Show. 327; 22 Vt. 321; 
 6 Cush. 80; or smell; 2 C. & P. 485; 13 
 Mete. Mass. 365; 1 Denio, 524; 34 Tex. 
 230 ; 100 Mass. 597 ; 33 Conn. 121 ; 43 N. 
 H. 415; or for other reasons ; 1 Johns. 78; 
 1 Swan, 213; Thach. Crim. Cas. 14; SEast, 
 192; 3 Jur. N. B. 570; 73 Penn. 84; L. R. 
 
 5 Eq. Ca. 166 ; 52 N. H. 262. 
 
 To constitute a public nuisance, there must 
 be such a number of persons annoyed that the 
 offence can no longer be considered a private 
 nuisance; 1 Burr. 337 ; 4 Esp. 200; 1 Stra. 
 686, 704 ; 2 Chitty, Crim. Law, 607, n.; 8 
 Ind. 494 ; 1 Wheat. 469 ; 37 Barb. 301. 
 
 Public nuisances arise in consequence of 
 following particular trades, by which the air 
 is rendered offensive and noxious ; Cro. Car. 
 510; Hawk. PL Cr. b. 1, c. 75,§ 10; 2Ld. 
 Raym. 1163; 1 Burr. 333; 1 Stra. 686; 4 
 B. & S. 608 ; 23 Vt. 92 ; from acts of public 
 indecency, as bathing in a public •iver in 
 sight of the neighboring houses-; 1 Knssell, 
 Crimes, 302; 2 Campb. 89; Sid. 168; 29 
 Ind. 517; ISVt. 574; 5 Barb. 208; 20 Ala. 
 65 ; 5 Rand. 627 ; or for acts tending^ to a 
 breach of the public peace, as for drawing a 
 number of persons into a field for the purpose 
 of pigeon-shooting, to the disturbance of the 
 neighborhood ; 3 B. & Aid. 184 ; or for rude 
 and riotous sports or pastimes ; 5 Hill, 121 ; 
 1 Mod. 76 ; 8 Cow. 169 ; 3 Eeb. 610; 1 S. 
 
 6 R. 40 ; 6 C. P. 324 ; or keeping a disor- 
 derly house ; 1 Russell, Crimes, 298 ; 13 Gray, 
 26 ; 5 Cranch, 304 ; 8 Blackf. 208 ; 1 Salk. 
 282; 30 N. J. 103; or a gaming-hmie; 
 Hawk. PL Cr. b. 1, c. 76, § 6; orn bawdy- 
 house ; Hawk. PL Cr. b.l. c. 74 § 1 ; 9 Conn. 
 350; 13 Gray, 26; 26 N. Y. 190; 54 Barb. 
 299 ; or a dangerous animal, known to be 
 such, and suffering him to go at large, as a 
 large bulldog accustomed to bite people; 4 
 Burn, Just. 578 ; 90 B. 101 ; 28 Wise. 430; 
 40 Vt. 347 ; or exposing a person having a 
 contagious disease, as the smallpox, in pub- 
 lic ; 4 M. & S. 73, 472 ; and the like. Tke 
 bringing a horse infected with the glanders 
 
NUL AGARD 
 
 817 
 
 NULLITY OF MARRIAGE 
 
 into a public place, to the danger of infecting 
 the citizens, is a misdemeanor at common 
 law; Dearsl. Cr. Cas. 24; 2 H. & N. 299; 
 16 Conn. 272 ; 41 Barb. 329. The selling of 
 tainted and unwholesome food is likewise in- 
 dictable; 4 N. C. L. 309 ; 3 Hawks. 376; 3 
 M. & S. 1 1 . The leaving unburied the corpse 
 of a person for whom the defendant was 
 bound to provide Christian burial, as a wife 
 or child, is an indictable nuisance, if he is 
 shown to have been of ability to provide such 
 burial ; 2 Den. Cr. Cas. 325. See 3 Jur. N. 
 s. 570. So of storing combustible articles in 
 undue quantities or in improper places ; 56 
 Barb. 72.; 3 East, 192 ; 57 Penn. 274; 2 Hen. 
 & M. 345 ; or the erection and maintenance 
 of purprestures ; Story, Eq. § 921 ; 9 Wend. 
 571 ; 28 N. Y. 396 ; 55 Barb. 404 ; 10 Pet. 
 623; 23 Vt. 92; 2 Wall. 403; 10 id. 557. 
 
 Private nuisances may be to corporeal in- 
 heritances : as, for example, if a man should 
 build his bouse so as to throw the rain-water 
 which fell on it on my land ; Fitzherbert, 
 Nat. Brev. 184 ; 39 Barb. 400 ; 5 Rep. 101 ; 
 keep hogs or other animals so as to incommode 
 his neighbor and render the air unwholesome ; 
 9 Co. 58 ; or to incorporeal hereditaments ; 
 as, for example, obstructing a right of way 
 by ploughing it up or laying logs across it, 
 and the like; Fitzherbert, Nat. Brev. 183; 
 2 Rolle, Abr. 140 ; or obstructing a spring ; 
 
 1 Campb. 463 ; 6 East, 208 ; interfering with 
 a franchise, as a ferry or railroad, by a similar 
 erection unlawfully made. It is impossible to 
 state here a list of the offences held to be 
 nuisances. Any annoyance arising from 
 odors, smoke, unhealthy exhalations, noise, 
 interference with water-power, etc. etc., 
 whereby a man is prevented from fully enjoy- 
 ing his own property, may be ranked as a 
 private nuisance. 
 
 The remedies are by an action for the dam- 
 age done, by the owner, in the case of a pri- 
 vate nuisance ; 3 Bla. Com. 220 ; or by any 
 party suffering special damage, in the case of 
 a public nuisance ; 4 Wend. 9 ; 3 Vt. 529 ; 1 
 Penn. 309 ; Carth. 194 ; Vaugh. 341 ; 3 M. 
 & S. 472 ; 2 Bingh. 283 ; 1 Esp. 148 ; 28 
 Vt. 142; 36 Cal. 193 ; 2 R. I. 493 ; hy abate- 
 ment by the owner, when the nuisance is pri- 
 vate; 2 Rolle, Abr. 565; Rolle, 394; 3 
 Bulstr. 198; 3 Dowl. & R. 556; 37 Penn. 
 503; 8 Dana, 158; and in some cases when 
 it is public ; 9 Co. 55 ; 2 Salk. 458 ; 3 Bla. 
 Com. 5. But in neither case must there 
 be any riot, and very pressing exigency is 
 requisite to justify summary action of this 
 character, particularly in the case of a public 
 nuisance; 14 Wend. 397; 11 Ark. 252; 16 
 Q. B. 546 ; by injunction, which is the most 
 usual and efficacious remedy ; see Injunc- 
 tion; or hy indictment for a public nuisance; 
 
 2 Bish. Crim. Law, § 856 ; Whart. Crim. 
 Law (2 ed.) § 1410, etc. 
 
 See Wood on Nuisance. 
 
 NTIL AGARD (L. Fr. no award). In 
 Pleading. A plea to an action on an arbi- 
 tration bond, when the defendant avers that 
 
 there was no legal award made. 3 Burr. 
 1730; 2 Stra. 923. 
 
 NUL DISSEISIN. In Pleading. No 
 disseisin. A plea in a real action, by which 
 the defendant denies that there was any dis- 
 seisin. It is a species of the general issue. 
 
 NUL TIEL RECORD (Fr. no such 
 record). In Pleading. A plea which is 
 proper when it is proposed to rely upon facts 
 which disprove the existence of the record 
 on which the plaintiff founds his action. 
 
 Any matters may be introduced under it 
 which tend to destroy the validity of the 
 record as a record, provided they do not con- 
 tradict the recitals of the record itself; 10 
 Ohio, 100. It is frequently used to enable 
 the defendant to deny the jurisdiction of the 
 court from which the alleged record emanates ; 
 2 McLean, 129; 22 Wend. 293. 
 
 It is said to be the proper plea to an action 
 on a foreign judgment, especially if of a sis- 
 ter state, in the United States ; 2 Leigh, 72 ; 
 6 id. 570; 17 Vt. 302 ; 6 Pick. 232 ; U 
 Miss. 210; 1 Penn. 499; 2 South. 778; 2 
 Breese, 2 ; though it is held that nil debet is 
 sufficient ; 33 Me. 268 ; 3 J. J. Marsh. 600 ; 
 especially if the judgment be that of a justice 
 of the peace ; 3 Harr. N. J. 408. See Con- 
 flict OF Laws. * 
 
 NUL TORT (L. Fr. no wrong). In 
 Pleading, A plea to a real action, by which 
 the defendant denies that he committed any 
 wrong. It is a species of general issue. 
 
 NUL •WASTE. In Pleading. The 
 general issue in an action of waste; Co. 
 3d Inst. 700 a, 708 a. The plea of nul waste 
 admits nothing, but puts the whole declara- 
 tion in issue ; and in support of this plea the 
 defendant may give in evidence any thing 
 which proves that the act charged is no waste, 
 as that it happened by tempest, lightning, 
 and the like; Co. Litt. 283 a; 3 Wms. 
 Saund. 238, n. 5. 
 
 NULL. Properly, that which does not 
 exist; that which is not in the nature of 
 things. In a figurative sense it signifies that 
 which has no more effect than if it did not 
 exist. 8 TouUier, n. 320. 
 
 NULLA BONA (L. Lat. no goods). 
 The return made to a writ of fieri facias by 
 the sheriff, when he has not found any goods 
 of the defendant on which he could levy. 3 
 Bouvier, Inst. n. 3393. 
 
 NULLITY. An act or proceeding which 
 has absolutely no legal effect whatever. See 
 Chitty, Contr. 228. 
 
 NULLITY OP MARRIAGE. There- 
 quisites of a valid and binding marriage have 
 been considered in the article on that subject. 
 If any of these requisites are wanting in a 
 given case, the marriage is either absolutely 
 void, or voidable at the election of one or 
 both of the parties. The more usual imper- 
 fections which thus render a marriage void or 
 voidable are : 1. Unsoundness of mind in 
 either of the parties. 2. Want of age ; i.e., 
 
NULLIUS FILIUS 
 
 S18 
 
 NUMERATA PECUNIA 
 
 fourteen in males and twelve in females. 3. 
 Fraud or error ; but these must relate to the 
 essentials of the relation, as personal identity, 
 and not merely to the accidentals, as charac- 
 ter, condition, or fortune. 4. Duress. 5. 
 Physical impotence, which must exist at the 
 time of the marriage and be incurable. 6. 
 Consanguinity or affinity within the prohib- 
 ited degrees. 7. A prior subsisting marriage 
 of either of the parties. The fifth and sixth 
 are termed canonical, the remainder, civil 
 impediments. 
 
 The distinction between the two ia impor- 
 tant, — the latter rendering the marriage abso- 
 lutely void, while the former only renders it 
 voidable. In the one case, it is not necessary 
 (though it is certainly advisable) to bring a 
 suit to have nullity of the marriage ascer- 
 tained and declared : it may be treated by the 
 parties as no marriage, and will be so regarded 
 in all judicial proceedings. In the other case, 
 the marriage will be treated as valid and bind- 
 ing until its nullity is ascertained and declared 
 by a competent court in a suit instituted for 
 that purpose ; and this must be done during 
 the lifetime of both parties : if it is deferred 
 until the death of either, the marriage will 
 always remain good. But the effect of such 
 sentence of nullity, when obtained, is to ren- 
 der the marriage null and void from the be- 
 ginning, as in the case of civil impediments. 
 
 For the origin and history of this distinc- 
 tion between void and voidable marriages, see 
 Bish. Marr. & D. c. 4. 
 
 A suit for nullity is usually prosecuted in 
 the same court, and is governed by substan- 
 tially the same principles, as a suit for divorce ; 
 Bish. Marr. & B. c. 15. 
 
 In its consequences, a sentence of nullity 
 differs materially from a divorce. The latter 
 assumes the original validity of the marriage, 
 and its operation is entirely prospective. The 
 former renders the marriage void from the 
 beginning, and nullifies all its legal results. 
 The parties are to be regarded legally as if 
 no marriage had ever taken place : they are 
 single persons, if before they were single ; 
 their issue are illegitimate ; and their rights 
 of property as between themselves are to be 
 viewed as having never been operated upon 
 by the marriage. Thus, the man loses all 
 right to the property, whether real or per- 
 sonal, which belongs to the woman ; and the 
 woman loses her right to dower ; Bish. Marr. 
 & D. §§ 647, 659. 
 
 Neither is the woman, upon a sentence of 
 nullity, entitled to permanent alimony; though 
 the better opinion is that she is entitled to 
 alimony pendente lite ; Bish. Marr. & D. ss 
 663,579-580.' See Alimony. 
 
 NULLIUS FILIUS (Lat.). The son of 
 no one ; a bastard. 
 
 A bastard is considered nullius filius as far 
 as regards his right to inherit. But the rule 
 of nullius filius does not apply in other re- 
 spects, and has been changed by statute in 
 most states so as to make him the child of his 
 mother. 
 
 The mother of a bastard, during its age of 
 nurture, is entitled to the custody of her 
 child, and is bound to maintain it ; 6 S &R 
 256; 2 Johns. 375; 15 id. 208; 2 Ma™ 
 1 09 ; 12 id. 387, 433 ; 4 B. & P. u% « ; 
 see 6 East, 224, n. ' 
 
 The putative father, too, is entitled to the 
 custody of the child as against all but the 
 mother ; 1 Ashm. 55. And it seems that the 
 putative father may maintain an action, as if 
 his child were legitimate, for marrying him 
 without his consent, contrary to law. Add 
 Penn. 212. See Bastaed; Chjld" 
 Father; Mother; Putative Fathek! 
 
 NULLUM ARBITRIUM (Lat.). In 
 Pleading. The name of a plea to an action 
 on an arbitration bond for not fulfilling the 
 award, by which the defendant asserts that 
 there is no award. 
 
 NULLUM PECERUNT AHBt 
 TRIUM (Lat.). In Pleading. The name 
 of a plea to an action of debt upon an obliga. 
 tion for the performance of an award, by winch 
 the defendant denies that he submitted to ar- 
 bitration, etc. Bacon, Abr. Arlitr. etc. 
 (G). 
 
 NULLUM TEMFUS ACT. Thesta- 
 tute 3 Geo. III. c. 16. See 32 Geo. IIL c. 
 68, and 7 Will. c. 3. It was so called because 
 theright of the crown to sue, 'etc., was limited 
 by it to sixty years, in contradiction to the 
 maxim. Nullum tempus occurrit regi; 3 
 Chitty, Stat. 63. 
 
 NUMBER. A collection of units. 
 
 In pleading, numbers must be stated hiily 
 when alleged in the recital of a record, writ- 
 ten instrument, or express contract ; Lawes, 
 PI. 48 ; 4 Term, 314 ; Cro. Car. 262 ; Dougl. 
 669 ; 2 W. Blackst. 1104. But in other cases 
 it is not, in general, requisite that they should 
 be truly stated ; because they are not re- 
 quired to be strictly proved. If, for example, 
 in an action of trespass the plaintifi" proves 
 the wrongful taking away of any part of the 
 goods duly described in his declaration, he is 
 entitled to recover pro tanto; Bacon, Abr, 
 Trespass (I 2) ; Lawes, PI. 48. 
 
 And sometimes, when the subject to be 
 described is supposed to comprehend a multi- 
 plicity of particulars, a general description is 
 sufficient. A declaration in trover alleging 
 the conversion of " a library of books," with- 
 out stating their number, titles, or quality, 
 was held to be sufficiently certain ; 3 Bulstr. 
 31; Garth. 110; Bacon, Ahr. Trover {f 1)\ 
 and in an action for the loss of goods by burn- 
 ing the plaintiffs house, the articles may be 
 described by the simple denomination of 
 " goods" or " divers goods." 1 Kebl. 825; 
 Plowd. 85, 118, 123;^Cro. Eliz. 837; 1 H. 
 Blackst. 284. 
 
 NUMERATA PECUNIA (Lat.). In 
 Civil Law. Money counted or paid ; money 
 given in payment by count. See Pecunia 
 NuMKRATA and Pecunia Nok-Numeb- 
 ATA. L. 3, 10, C. de non numeral, pecun.; 
 Vicat, Voc. Jur. 
 
NUNC PRO TUNC 
 
 S19 
 
 NURTURE 
 
 NUNC PRO TUNC {Lat. now for then). 
 A phrase used to express that a thing is done 
 at one time which ought to have been per- 
 formed at another. 
 
 Leave of court must be obtained to do 
 things nunc pro tunc ; and this is granted to 
 answer the purposes of justice, but never to 
 do injustice. A judgment nunc pro tunc can 
 be entered only when the delay has arisen 
 from the act of the court ; 3 C. B. 970. See 
 1 V. & B. 312 ; 1 Moll. 462 ; 13 Price, 604. 
 A plea puis darrein continuance may be 
 entered nunc pro tunc after an intervening 
 continuation, in some cases; 11 N. H. 299; 
 and lost pleadings may be replaced by new 
 pleadings made nunc pro tunc ; 1 Mo. 327. 
 
 By the Jud. Act of 1875, Ord. xli. r. 2, the en- 
 try of a judgment pronounced by a judge in 
 court, shall be dated as of the day on which 
 such judgment is pronounced, and the judgment 
 shall take effect from that date. And in other 
 caaes, by r. 3, the entry of judgment shall be 
 dated as of the day on which the requisite docu- 
 ments are left with the proper ofBcer for the pur- 
 pose of such entry, and the judgment shall take 
 effect from that date. Moz. & W. 
 
 NUNCIATIO. In Civil Law. A for. 
 mal proclamation or protest. It may be by 
 acts {realis) or by words. Mackeldey, Civ. 
 Law, § 237. Thus, nunciatio novi operis was 
 an injunction which one man could place on 
 the erection of a new building, etc. near him, 
 until the case was tried by the praetor. Id.; 
 Calv. Lex. An information against a crimi- 
 nal. Calv. Lex. 
 
 NUNCIO. The name given to the pope's 
 ambassador. Nuncios are ordinary- or extra- 
 ordinary ; the former are sent upon usual mis- 
 sions, the latter upon special occasions. 
 
 N U N C t U S. In International Law. 
 
 A messenger; a minister; the pope's legate, 
 commonly called a nuncio. 
 
 NUNCUPATIVE "WILL. An oral will, 
 declared by testator in extremis, or under cir- 
 cumstances considered equivalent thereto, be- 
 fore witnesses, and afterwards reduced to 
 wfiting. 4 Kent. 576 ; 2 Bla. Com. 500 ; 1 
 Jarra. Wills, 130, 136. In early times this 
 kind of will was very common, and before 
 the Statute of Frauds, by which it was vir- 
 tually abolished, save in the case of soldiers 
 and sailors, was of equal efficacy, except for 
 lands, tenements, and hereditaments, with a 
 written testament. Such wills are subject to 
 manifest abuses, and by stat. 1 Vict. c. 26, 
 §§9, 11 (preceded by 1 Will. IV. c. 20), the 
 privilege is confined to soldiers in actual ser- 
 vice, and sailors at sea, and extends only to 
 personal estate. Similarprovisions have been 
 enacted in Massachusetts, Minnesota, New 
 York, Rhode Island, Virginia, West Virginia, 
 and the territory of Montana. In Georgia, 
 the statute embraces both real and personal 
 property. In California and Dakota, the de- 
 cedent must have been in actual military ser- 
 vice, or at sea, and in immediate fear of death. 
 In the other states, nuncupative wills by per- 
 sons in extremis are still recognized, subject 
 
 to restrictions as to amount of property be- 
 queathed similar to those of the English sta- 
 tute of frauds. The following principles, 
 among others, are well established : Statutes 
 relating to nuncupative wills are strictly con- 
 strued; 2 Phillim. 194; id. 190; 78 111. 
 287; 47 Penn. 31; 33 Miss. 629. The tes- 
 tator must be in extremis, overtaken by violent 
 sickness, in contemplation of death, and with- 
 out time to make a written will ; 1 Addams, 
 389; 20 Johns. 502; 6 W. & S. 184; 10 
 Gratt. 548 ; but see 2 Ala. (N. S.) 242 ; 82 
 111. 50 ; the deceased must have clearly inti- 
 mated by word or signs to those present that 
 he intended to make the will ; 9 B. Monr. 
 553; 27 111. 247; 26 N. H. 372; 14 La. 
 An. 729 ; 36 Md. 630 ; 2 Greenl. 298 ; 63 
 111. 455 ; 46 Iowa, 694 ; testamentary capacity 
 must be most clearly proved; 12 Gill & J. 
 192; 78 111. 287. In "actual military ser- 
 vice," is held to mean during warfare, and 
 while on an expedition; 3 Curt. 531; 53 
 Me. 561 ; but this rule has been somewhat 
 freely treated; 39 Vt. 498; 1 Abb. Pr. (U. 
 S.) 112. Sailors must be serving on ship- 
 board ; 2 Curt. 339 ; 2 R. I. 133. The term 
 mariner applies to every one in the naval or 
 mercantile service ; 4 Bradf. 154. See, in 
 general, 1 Wms. Exec. 59 ; Swinb. Wills ; 
 Redf. Wills, 185; Ayliffe, Pand.; Proflf. 
 Wills ; note to Sykes vs. Sykes, 20 Am. Dec. 
 44. 
 
 NUNDINiE (Law Lat.). In Civil and 
 Old English Law. Fair or fairs. Dion. 
 Halicarnass. lib. 2, p. 98 ; Vicat, Voc. Jur.; 
 Law Fr. & Lat. Diet. Hence Nundination, 
 traffic at fairs. 
 
 N U N Q U A M INDEBITATUS (Lat. 
 never indebted). In Pleading. A plea to 
 an action of indebitatus assumpsit, by which 
 the defendant asserts that he is not indebted 
 to the plaintiff. 6 C. & P. 545 ; 1 M. & W. 
 542 ; 1 Q. B. 77. In England, this plea has 
 been substituted for nil debet, q.v., as the 
 general issue in debt on a simple contract. 
 
 NUNTIUS, NUNCIUS. In Old Eng- 
 lish Practice. One who made excuse for 
 absence of one summoned. An apparitor, 
 beadle, or sergeant. Cowel. A messenger 
 or legate: «.y. pope's nuncio. Jacob, Law 
 Diet. Essoniator was sometimes wrongly 
 used for nuntius in the first sense. Bracton, 
 fol. 345, ? 2. 
 
 NUPER OBIIT (Lat. he or she lately 
 died). In Practice. The name of a writ 
 which in the English law lies for a sister co- 
 heiress dispossessed by her coparcener of 
 lands and tenements whereof their father, 
 brother, or any common ancestor died seised 
 of an estate in fee-s'imple. Fitzh. N. B. 
 197. Abolished in 1833. 
 
 NURTURE. The act of taking care of 
 children and educating them. The right to 
 the nurture of children generally belongs to 
 the father till the child shall arrive at the age 
 of fourteen years, and not longer. Till then 
 he is guardian by nurture ; Co. Litt. 38 b. 
 
NURUS 
 
 320 OATH AGAINST BRIBERY 
 
 But in special cases the mother will be pre- 
 ferred to the father; 6 Binn. 620 ; 2 S. &R. 
 174; and after the deatli of the father the 
 mother is guardian hy nurture. Fleta, 1. 1, 
 
 c. 6; Comyns, Dig. Guardian (B). R.. 
 GuAHDiAN ; Habeas Corpus. 
 
 NURUS (Lat.). A daughter-in-law. Die 
 50. 16. 60. ^' 
 
 O. 
 
 OATH. An outward pledge given by the 
 person taking it that his attestation or pro- 
 mise is made un(^r an immediate sense of 
 his responsibility to God. Tyler, Oaths, 15. 
 
 The term has been variously defined : as, " a 
 solemn invocation of the vengeance of the Deity 
 upon the witness if he do not declare the whole 
 truth, so far as he knows it," 1 Stark. Ev. 23 ; 
 or, "a religious asseveration by which a person re- 
 nounces the mercy and imprecates the vengeance 
 of Heaven if he do not speak the truth," 3 
 Leach, 482; or, as " 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 Toullier, nn. 343-348 ; Puffendorff, 
 b. 4, c. 3, § 4. The essential idea of an oath 
 would seem to be, however, that of a recogni- 
 tion of God's authority by the party taking it, 
 and an undertaking to accomplish the transaction 
 to which it refers as required by his laws. 
 
 In its broadest sense, the term is used to in- 
 clude all forms of attestation by which a party 
 signifies that he is bound in conscience to per- 
 form the act faithfully and truly. In a more re- 
 stricted sense, it excludes all those forms of at- 
 testation or promise which are not accompanied 
 by an imprecation. 
 
 Assertory oaths are those required by law 
 other than in judicial proceedings and upon 
 induction to oflice : such, forexample, as cus- 
 tom-house oaths. 
 
 Extra-judicial oaths are those taken with- 
 out authority of law. Though binding inforo 
 conscientim, they do not, when false, render 
 the party liable to punishment for perjury. 
 
 Judicial oaths are those administered in 
 judicial proceedings. 
 
 Promissory or official oaths are oaths 
 taken, by authority of law, by which the 
 party declares that he will fulfil 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 dutios of his office. The 
 breach of this does not involve the party in 
 the legal crime or punishment of perjury ; 3 
 i~\,. 49 _ Where an appointee neglects to 
 
 Zabr." 
 
 take an oath of office when required by sta- 
 tute to do soj he cannot be considered quali- 
 fied, nor justify his doings as an officer ; 2 N. 
 H. 202 ; s. c. 9 Am. Dec. 50. 
 
 The /orm of administering the oath mavbe 
 varied to conform to the religious belief of the 
 individual, so as to make it binding upon his 
 conscience; 16 Pick. 154; 2 Gall. 346- 8 
 Park. Cr. 590 ; 2 Hawkes, 458; 7 111. m- 
 Ry. & M. 77. The most common form ia 
 upon the gospel, by taking the book in the 
 hand: the words commonly used are, "You 
 do swear that," etc., "so help you God," 
 and then kissing the book ; 9 C. & P. 137, 
 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, be- 
 fore he reads it to the people ; Rees, Cyd In 
 New England, New York, and in Scotlandthe 
 gospels are npt generally used, but the partf 
 taking the oath holds up his right hand and re- 
 peats the words here given ; 1 Leach, 412,498. 
 
 Another form is by the witness or party 
 promising holding np his right hand while 
 the officer repeats to him, " You doswearby 
 Almighty God, the searcher of hearts, that," 
 etc., " and this as you shall answer to God at 
 the great day." 
 
 In another form of attestation, commonly 
 called an affirmation {a. v.), the officer re- 
 peats, "You do solemnly, sincerely, and traly 
 declare and affirm that," etc. 
 
 A Jew is sworn on the Pentateuch, or Old 
 Testament, with his head covered; Stra. 821, 
 1113; a Mohammedan, on the Koran; 1 
 Leach, 54 ; a Gentoo, by touching with his 
 hand the foot of a Brahmin or priest of hii 
 religion; a Brahmin, by touching the hand rf 
 another such priest ; Wils. 549 ; 1 Atk. 21 ; a 
 Chinaman, by breaking a china saucer ; 1 CI 
 &M. 248. See 25 Alb. L.J. 301. 
 
 The form and time of administering oaths, 
 as well as the person authorized to adminis- 
 ter, are usually fixed by statute. See Gilp. 
 439; 1 Tyl. 347; 1 South. 297; 4 Wash. C. 
 C. 555 ; 2 Blackf. 85 ; 2 McLean, 135; 9 
 Pet. 238 ; 1 Va. Cas. 181 ; 8 Rich. So. C. 
 456 ; 1 Swan, 157 ; 5 Mo. 21 ; 48 Cal. 197; 
 41 Conn. 206. The administering of unlaw- 
 ful oaths is an offence against the government, 
 punishable in England by transportation; 
 Whart. Lex. 
 
 The sabject of oaths has undergone mad' 
 
OATH OF CALUMNY 
 
 321 
 
 OBIT 
 
 revision of late years by parliament. By the 
 Promissory Oaths Act (31 & 32 Vict. o. 72) 
 a number of unnecessary oaths have been 
 abolished, and declarations substituted. The 
 same act provides a now form of the oath of 
 allegiance, and forms of a judicial oath and 
 an official oath to be taken by particular offi- 
 cers. See also Promissory Oaths Act of 1871. 
 
 OATH AGAINST BRIBERY. One 
 
 •which could have been administered to a 
 voter at an election for members of parlia- 
 ment. Abolished in 1854. Whart.' Lex. 
 
 OATH OP CALUMNY. In CivU Law 
 
 An oath which a plaintiff was obliged to take 
 that he was not actuated by a spirit of chi- 
 canery in commencing his action, but that he 
 had bona fide a good cause of action. 
 Pothier, Pand. lib. 5, tt. 16, 17, s. 124. This 
 oath is somewhat similar to our affidavit of a 
 cause of action. See Dunl. Adm. Pr. 289, 
 
 290 ; JURAMENTUM CaLUMNI/B'.. 
 
 OATH DECISORY. In Cival Law. 
 
 An oath which one of the parties defers or 
 refers back to the other for the decision of the 
 cause. 
 
 It may be deferred in any kind of civil con- 
 test 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. Pothier, Obi. pt. 4, c. 3, s. 4. 
 
 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. 
 
 OATH EX OFFICIO. The oath by 
 which a clergyman charged with a criminal 
 offence was formerly allowed to swear himself 
 to be innocent ; also the oath by which the 
 compurgators swore that they believed in his 
 innocence; 3 Bla. Com. 101, 447 ; Moz. &W. 
 
 O.A.TH IN LITEM. An oath which in 
 the civil law 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 de- 
 fendant and he suppressed proof in his pos- 
 session. See Greenl. Ev. § 348 ; Tait, Bv. 
 280; iVern. 207; 1 Eq. Gas. Abr. 229; 1 
 Me. 27 ; 1 Yeates, 34 ; 12 Viner, Abr. 24. 
 
 In general, the oath of the party cannot, 
 by the common law, be received to establish 
 his claim, but is admitted in two classes of 
 Vol. II.— 21 
 
 cases : first, 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. See 
 1 Pet. 591 ; 9 Wheat. 486 ; 5 Pick. 436 ; 15 
 id. 368 ; 16 Johns. 193 ; 17 Ohio, 156 ; 3 N. 
 H. 135. As, for example, where a trunk of 
 goods was delivered to a shipmaster at one 
 port to be carried to another, and on the pas- 
 sage 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 tes- 
 tify as to the contents of the trunk; 1 Me. 
 27 ; 11 id. 412. And see 10 Watts, 335 ; 1 
 Greenl. Ev. § 348 ; 12 Mete. 44 ; 2 Watts, 
 220 ; 12 Mass. 360. 3§oond, the oath in 
 litem is also admitted on the ground of public 
 policy where it is deemed essential to the pur- 
 poses of justice ; Tait, Ev. 280 ; 1 Pet. 596 ; 
 6 Mood. 137; 2 Stra. 1186. 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 un- 
 less the party interested be admitted as a wit- 
 ness ; 16 Pet. 203. 
 
 OATH PURGATORY. An oath 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 wit- 
 ness, he may purge himself of the contempt, 
 by swearing to a fact which is an ample ex- 
 cuse. See Purgation. 
 
 OATH SUPPLETORY. In CivU and 
 Ecclesiastical La^w. 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. 
 See 3 Bla. Com. 270. 
 
 OBEDIENCE. The performance of a 
 command. 
 
 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 n trespass un- 
 der an execution, when the court has jurisdic- 
 tion, although irregularly issued ; 3 Chitty, 
 Pr. 75 ; Hamm. ISI. P. 48. 
 
 A child, an apprentice, a pupil, a mariner, 
 and a soldier owe respectively obedience to 
 the lawful commands of the parent, the mas- 
 ter, the teacher, the captain of the ship, and 
 the military officer having command ; and in 
 case of disobedience submission may be en- 
 forced by correction. 
 
 OBIT. That particular solemnity or office 
 for the dead which the Komau Catholic church 
 appoints to be read or performed over the 
 body of a deceased member of that commun- 
 ion before interment; also,- the office which 
 upon the anniversary of his death was fre- 
 
OBITER DICTUM 
 
 322 
 
 OBLIGATIO 
 
 qnently used as a commemoration or obser- 
 vance of the day ; Dy. 313. 
 
 OBITER DICTUM. See Dictum. 
 
 OBJECTS OP A POWER. The per- 
 sons who are intended to be benefited by the 
 distribution of property settled subject to a 
 pow^r. 
 
 OBIiATIO (Lat.). In Civil Law. A 
 tender of money in payment of debt made 
 by debtor to creditor. L. 9, C. de solut. 
 Whatever is offered to the church by the 
 pious. Calv. Lex. ; Vicat, Voc. Jur. 
 
 OBLIGATIO. In Roman Law. A 
 
 legal bond which obliges us to the perform- 
 ance of something in accordance with the law 
 of the land. Ortolan, Inst. 2, § 1179. 
 
 It corresponded nearly to our word con- 
 tract. Justinian says, " Obligatio est juris 
 vinculum, quo nec^sitate adstringimur ali- 
 cujus salvendoe rei, secundum nostrce civitatis 
 jura." Pr. J. 3. 13. 
 
 The Bomans considered that obligations de- 
 rived their validity solely from positive law. At 
 flrat the only one» recognized were those estab- 
 lished in special cases in accordance with the 
 forms prescribed by the strict jMS civilis. In the 
 course of time, however, the praetorian jurisdic- 
 tion, in mitigation of the primitive rigor of the 
 law, introduced new modes of contracting obli- 
 gations and provided the means of enforcing 
 them : hence the twofold division made by Jus- 
 tinian of obligationes civiles, and obligatUmes prts- 
 toriae. Inst. 1. 3. 13. But there was a third 
 class, the obligationes naturdles, which derived 
 their validity from the law of nature and na- 
 tions, or the natural reason of manldnd. These 
 had not the binding force of the other classes, 
 not being capable of enforcement by action, and 
 are, therefore, not noticed by Justinian in his 
 classification ; but they had, nevertheless, a cer- 
 tain eflScacy even in the civil law : for instance, 
 though a debt founded upon a natural obliga- 
 tion could not be recovered by an action, yet if 
 it was voluntarily paid by the debtor he could 
 not recover it back, as he might do In the case 
 of money paid by mistake, etc. wher^ no natural 
 obligation existed. L. 38, pr. D. Is. 6. And 
 see Ortolan, 3, § 1180. 
 
 The second classification of obligations made 
 by Justinian has regard to the way in which they 
 arise. They were, in this aspect, either ex con- 
 tractu or quasi ex contractu, or ex mal^cio or 
 quasi ex malqficio. Inst. 2. 3, 13. These will be 
 discussed separately. 
 
 Obligationes ex contractu, those founded 
 upon an express contract, are again subdivided 
 into four classes, with reference to the mode 
 in which they are contracted. The contract 
 might be entered into re, verbis, Uteris, or 
 consensu. 
 
 A contract was entered into re by the actual 
 transfer of a thing from one party to the 
 other. Though in such cases the understand- 
 ing of the parties as to the object of the 
 transfer, and the conditions accompanying it, 
 formed an essential part of the contract, yet 
 it was only by the actual delivery of the thing 
 that the contract was generated. The only 
 contracts which could be entered into in this 
 way were those known to our law as bail- 
 ments, — a term derived from the French 
 
 word bailler, to deliver, and evidently point- 
 ing to the same characteristic feature in the 
 translation which the Romans indicated by 
 the word re. These were the mu(uum, or 
 loan of a thing to be consumed in the using 
 and to be returned in kind, the commodatum 
 or gratuitous loan of a thing to he used and 
 returned, the depositum, or delivery of a 
 thing to be kept in safety for the benefit of 
 the depositor, and the pignus, or delivery of 
 a thing in pledge to a creditor, as securitv for 
 his debt.. See Mutuum; Commodatum- 
 Depositum; Pignus; Ortolan, Inst. §§i 208 
 et seq. ; Mackeldey, Ebm. Recht, §§ 396-408. 
 Besides the above named contractus reales a 
 large class of contracts which had no special 
 names, and were thence, called contractus in. 
 nominati, were included under this head 
 from the fact that they, like the former, gave 
 rise to the actio prcescriptis verbis. Some of 
 these were the contracts of exchange, of 
 mutual compromise, of doubtful or contested 
 claims (somewhat resembling our accord and 
 satisfaction), of factorship, etc. See Mackel- 
 dey, §§ 409-414. 
 
 Contracts were entered into verbis, by a 
 formal interrogation by one party and re- 
 sponse by the other. The interrogation was 
 called stipulalio, and the party making it, 
 reus stipulandi. The response was called 
 promissio, and the respondent, reus promt- 
 tendi. The contract itself, consisting of the 
 interrogation and response, was often called 
 stipulatio. In the time of the earlier jurists, 
 the stipulation could only be entered into by 
 the use of certain formulary words by the 
 parties : as, for instance, Spondes f do you 
 promise? Spondee, I promise; DaUsI 
 will you give ? Dabo, I will give ; Fades t 
 will you do this? Faciam, I will do it, etc. 
 etc. But by a constitution of the emperor 
 Leo, A. D. 469, the obligation to use these 
 particiilar words was done away, and any 
 words which expressed the meaning of the 
 parties were allowed to create a, valid stipu- 
 lation, and any language understood by the 
 parties might be used with as much effect as 
 Latin. Such contracts were called verbis, be- 
 cause their validity depended entirely upon 
 the use of the words. The mere agreement 
 of the parties without using the question and 
 response could not beget a stipulation;: and, 
 on the other hand, if the question and re- 
 sponse' had been used, the obligation was 
 created although there might be an absence of 
 consent. In this latter case, however, equit- 
 able relief would be granted by the prator. 
 Ortolan, Inst. § 1250. Stipulations, and, in- 
 deed, all other forms of contracts, might be 
 made either pure, i. e. absolutely, or in diem, 
 i. e. to take effect at a future day, or suh coi^ 
 ditione,i.e. conditionally. But some kinds 
 of conditions, such as those physically im- 
 possible, were inadmissible, and invalidated 
 the contract; while others, such as those 
 which were absurd, were themselves invalid- 
 ated, and the contract was considered as hav- 
 ing been made absolutely. Max'keldey, §§ 
 
OBLIGATIO 
 
 823 
 
 OBLIGATION 
 
 416-421 ; Ortolan, Inst. §§ 1235-1413 ; Inst. 
 3. 13-20. 
 
 Contracts entered into Uteris were obsolete 
 in the reign of Justinian. In the earlier 
 days of Roman jurisprudence, every citizen 
 kept a private account-book. If a creditor, 
 at the request of his debtor, entered in such 
 book his charge against his debtor, such en- 
 try, in pursuance of the request, constituted 
 not merely evidence of a contract, but the 
 contract itself. This was the contract formed 
 litiris, in writing. The debtor, on his part, 
 might also make a corresponding entry of the 
 transaction in his own book. This was, in 
 fact, expected of him, and was generally 
 done ; but it seems not to have been neces- 
 sary to the validity of the contract. The 
 entry was made in the form of a fictitious pay- 
 ment ; it was allowable only in pecuniary 
 transactions ; it must be simple and uncondi- 
 tional, and could not be made to take effect at 
 a future day. The charge might be made 
 against the original debtor, a re in personam, 
 or against a third person who agreed to take 
 his place, a persona in personam. This 
 species of literal contract was called nomina, 
 nomina transcriptitia, or acceptilatio et 
 expensilatio. Ortolan, Inst. §§ 1414-1428. 
 This species of contract seems never to have 
 been of great importance ; they had disap- 
 peared entirely before the time of Justinian ; 
 Hadley, Kom. Law, 216. 
 
 There were two other literal contracts 
 known to the early jurisprudence, called syn- 
 graphia and chirographia ; but these even in 
 the times of Gains had become so nearly ob- 
 solete that very little is known about them. 
 All these, it must be borne in mind, were 
 contracts themselves, not merely evidences of 
 a contract ; and this distinguishes them from 
 the instruments of writing in use during the 
 latter ages of the civil law. Ortolan, Inst. 
 §§ 1414-1441 ; Mackeldey, § 422. 
 
 Contracts were made consensu, by the 
 mere agreement of the contracting parties. 
 Although such agreement might be proved by 
 a written instrument, as well as in other 
 ways, yet the writing was only evidence of the 
 contract, not the contract itself. This species 
 of consensual contracts are emptio et venditio, 
 or sale, locatio et conductio, or hiring, em- 
 phyteusis, or conveyance of land reserving a 
 rent, societas, or partnership, and mandatum, 
 or agency. See these words. 
 
 Obligationes quasi ex contractu. In the 
 Boman law, persons who had not in fact en- 
 tered into a contract were sometimes treated 
 as if they had done so. Their legal position 
 m such cases had considerable resemblance to 
 that of the parties to a contract, and is called 
 an obligatio quasi ex contractu. Such an ob- 
 ligation was engendered in the cases of nego- 
 tiorum gestio, or unauthorized agency, of 
 communio incidens, a sort of tenancy in com- 
 mon not originating in a contract, of soluiio 
 tndehiti, or the payment of money to one not 
 entitled to it, of the tutela and cura, resem- 
 bling the relation of guardian and ward, of the 
 
 additio hereditatis and agnitio honorum pos- 
 sessionis, or the acceptance of an heirship, 
 and many others. Some include in this class 
 the constitutio dotis, settlement of a dower. 
 Ortolan, Inst. §§ 1522-1632; Mackeldey, 
 §§ 457-468. 
 
 Obligationes ex malejicio or ex delicto. 
 The terms malejicium, delictum, embraced 
 most of the injuries which the common law 
 denominates torts, as well as others which are 
 now considered crimes. This class includes 
 furtum, theft, rapina, robbery, damnum, or 
 injury to property, whether direct or conse- 
 quential, and injuria, or injury to the person 
 or reputation. The definitions here given of 
 damnum and injuria are not strictly accurate, 
 but will serve to convey an idea of the dis- 
 tinction between them. All such acts, from 
 the instant of their commission, rendered the 
 perpetrator liable for damages to the party 
 injured, and were, therefore, considered to 
 originate an obligatio. Inst. 4. 1-4 ; Ortolan, 
 Inst. §§ 1715-1780. 
 
 Obligationes quasi ex delicto. This class 
 embraces all torts not coming under the de- 
 nomination of delicta and not having a special 
 form of action provided for them by law. 
 They differed widely in character, and at 
 common law would in some cases give rise to 
 an action on the case, in others to an action 
 on an implied contract. Ortolan, Inst. §§ 
 1781-1792. 
 
 Obligationes ex variis causarum figuris. 
 Although Justinian • confined the divisions of 
 obligations to the four classes which have 
 been enumerated, there are many species of 
 obligations which cannot properly be reduced 
 within any of these classes. Some authori- 
 ties have, consequently, established a fifth 
 class, to receive the odds and ends which be- 
 longed nowhere else, and have given to this 
 class the above designation, borrowed from 
 Gaius, 1. 1, pr. § 1 D. 44, 7. See Mackel- 
 dey, §§ 474-482. See, generally, Hadley, 
 Roman Law, 209, etc. 
 
 OBLIGATION (from Lat. ohligo, ligo, 
 to bind). A duty. 
 
 A tie which binds us to pay or do some- 
 thing agreeably to the laws and customs of 
 the country in which the obligation is made. 
 Inst, 3. 14. 
 
 A bond containing a penalty, with a con- 
 dition annexed, for the payment of money, 
 performance of covenants, or the like, and 
 which differs from a bill, which is generally 
 without a penalty or condition, though it may 
 be obligatory. Co. Litt. 172. 
 
 A deed whereby a man binds himself un- 
 der a penalty to do a thing. Comyns, Dig. 
 Obligation (A) ; 2 S. & R. 502 ; 6 Vt. 40 ; 
 1 Blackf. 241 ; Harp. 434 ; Baldw. 129. 
 
 An absolute obligation is one which gives 
 no alternative to the obligor, but requires ful- 
 filment according to the engagement. 
 
 An accessory obligation is one which is de- 
 pendent on the principal obligation ; for ex- 
 ample, if I sell you a house and lot of ground, 
 the principal obligation on my part is to make 
 
OBLIGATION 
 
 324 
 
 OBLIGATION 
 
 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. 
 
 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. 
 
 Thus, if A agrees to give B, upon a sufficient 
 consideration, a horse, or one hundred dollars, it 
 is an alternative obligation. Pothier, Obi. pt. 3, 
 c. 3, art. 6, no. 245. 
 
 In order to constitute an alternative obliga- 
 tion, 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. 
 
 The choice of performing one of the obliga- 
 tions belongs to the obligor, unless it is ex- 
 pressly agreed that it shall belong to the credi- 
 tor ; bougl. 14 ; 1 Ld.Raym. S79 ; 4 Mart. La. 
 N. s. 167. If one of the acts is prevented by the 
 obligee or the act of God, the obligor is dis- 
 charged from both. See 3 Evans, Pothier, Obi. 
 53-54 ; Viner, Abr. Condition (S b) ; Conjunc- 
 tive ; Disjunctive ; Election. , 
 
 A civil obligation is one which has a bind- 
 ing operation in law, 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. 4 Wheat. 197; 12 
 id. 318, 337. 
 
 Civil obligations are divided into express and 
 implied, pure and conditional, primitive and 
 secondary, principal and accessory, absolute and 
 alternative, determinate and indeterminate, di- 
 visible and indivisible, single and penal, and 
 joint and several. They are also purely personal, 
 purely real, or mixed. 
 
 A conditional obligation is one the execu- 
 tion of which is suspended by a condition 
 which has not been accomplished, and subiect 
 to which it has been contracted. 
 
 A determinate obligation is one which, has 
 for its object a certain thing : as, an obliga- 
 tion to deliver a certain horse named Buce- 
 phalus. In this case the obligation can only 
 be discharged by delivering the identical 
 horse. 
 
 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 that 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 dol- 
 lars ; 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 Appon- 
 tionment. 
 
 Express or conventional obligations are 
 those by which the obligor binds himself in 
 express terms to perform his obligation. 
 
 Imperfect obligations are those which are 
 not binding on us as between man and man 
 and for the non-performance of which we arc 
 accountable to God only : such as charity or 
 gratitude. In this sense an obligation is n 
 mere duty. Pothier, Obi. art. prll. n. 1. 
 
 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 i,, 
 your family, the law raises an obligation on 
 your part to pay me the value of the bread. 
 
 An indeterminate obligation is one where 
 the obligor binds himself to deliver one of a 
 certain species : as, to deliver a horse, where 
 the delivery of any horse will discharge the 
 obligation. 
 
 An indivisible obligation is one which is 
 not susceptible of division : as, for example 
 if I promise to pay you one hundred dollare 
 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. 
 
 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 
 fulfil 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. 
 
 A natural or moral obligation is one 
 which cannot be enforced by action, but which 
 is binding on the party who makes it in con- 
 science and according to natural justice. 
 
 As, for instance, when the action is barred by 
 the act of limitation, a natural obligation stUl 
 subsists, although the civil obligation is extin- 
 guished ; 5 Binn. 573. Although natural obli- 
 gations cannot be enforced by action, they haTe 
 the following effect ; first, no suit will lie to re- 
 cover back what -has been paid or given in com- 
 pliance with a natural obligation : 1 Term, 285; 
 1 Dall. 184 ; second, a natural obligation has been 
 held to be a sufficient consideration for a new 
 contract ; 2 Binn. 591 ; 5 id. 33 ; Telv. 41 o, n. 
 1 ; Cowp. 290 ; 3 Bla. Com. 445 ; 3 Bos. & P. 
 249, n. ; 2 East, 506 ; 3 Taunt. 311 ; 5 id. 36 ; 3 
 Pick. 207 ; Chitty, Contr. 10 ; but see Mokal 
 Oblioation ; Consideration. 
 
 A penal obligation is one to which is at- 
 tached a penal clause, which is to be enforced 
 if the principal obligation be not performed. 
 See Liquidated Damages. 
 
 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. 
 
 A personal obligation is one by which the 
 obligor binds himself to perform an act, with- 
 out directly binding his property for its per- 
 formance. 
 
 It also denotes an obligation in which the 
 obligor binds himself only, not including his 
 heirs or representatives. 
 
 A primitive ohligatioTi, 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. 
 
OBLIGATION OF CONTRACTS 325 
 
 OBSCENITY 
 
 A principal obligation is one which ig the 
 most important object of the engagement of 
 the contracting parties. 
 
 A pure or simple obligation is one which is 
 not suspended by any condition, either because 
 it has been contracted without condition, or, 
 having been contracted with one, it has been 
 fulfilled. 
 
 A real obligation is one by which real es- 
 tate, and not the person, is liable to the obli- 
 gee 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 per- 
 son buys an estate which has been mortgaged, 
 .subject to the mortgage : he is not liable for the 
 debt, though the 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. The obligation is 
 both personal and real when the obligor has 
 bound himself and pledged his estate for the 
 fulfilment of his obligations. 
 
 A secondary obligation is one which is con- 
 tracted 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 obli- 
 gation. 
 
 A several obligation is one by which one 
 individual, or, if there be more, several in- 
 dividuals, bind themselves separately to per- 
 form the engagement. In this case each obli- 
 gor may be sued separately ; and if one or 
 more be dead, their respective executors may 
 be sued. See Parties to Actions. 
 
 A single obligation is one without any pen- 
 alty : as where I simply promise to pay you 
 one hundred dollars. This is called a single 
 bill, when it is under seal. 
 
 OBLIGATION OF CONTRACTS. 
 See Impairing the Obligations of Con- 
 tracts. 
 
 OBLIGEE. The persons in favor of 
 whom some obligation is contracted, whether 
 such obligation be to pay money or to do or 
 not to do something. La. Code, art. 3522, 
 no. 11. 
 
 Obligees are either several or joint. An 
 obligee is several when the obligation is made 
 to him alone ; obligees are joint when the 
 obligation is made to two or more ; and in 
 that event each is not a creditor for his sepa- 
 rate share, unless the nature of the subject or 
 the particularity of the expression in the in- 
 strument lead to a different conclusion. 2 
 Pothier, Obi. Evans ed. 56 ; Dy. 360 a, pi. 
 20-; Hob. 172; 2 Brownl. 207; Yelv. 177; 
 Cro. Jac. 251. 
 
 OBLIGOR. The person who has engaged 
 to perform some obligation. La. Code, art. 
 3522, no. 12. One who makes a bond. 
 _^ Obligors are joint and several. They are 
 joint when fbey agree to pay the obligation 
 jointly ; and then the survivors only are lia- 
 
 ble upon it at law, but in equity the assets of 
 a deceased joint obligor may be reached ; 1 
 Bro. C. 29; 2 Ves. 101, 371. They are 
 several when one or more bind themselves 
 each of them separately to perform the obli- 
 gation. 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 Ala. 479 ; 4 Hayw. 239 ; 4 
 M'Cord, 203 ; 7 Cow. 484 ; 2 Hen. & M. 
 398 ; 5 Mass. 538 ; 2 Dana, 463 ; 4 Munf. 
 380 ; 4 Dev. 272. When the obligor signs 
 between the penal part and the condition, 
 still the latter will be a part of the instru- 
 ment; 7 Wend. 345; 3 Hen. & M. 144. 
 
 The execution of a bond by the obligor, 
 in blank, with verbal authority to fill it up, 
 does not' bind the obligor, though it is after- 
 wards filled up, unless the bond is redelivered 
 or acknowledged or adopted ; 1 Yerg. 69, 
 149; 1 Hill, N. Y. 267; 2 N. & M'C. 
 125; 2 Brock. 64; 1 Ohio, 368 ; 2 Dev. 
 369; 6 Gill & J. 250. But see, contra, 17 
 S. & R. 438 ; and see 6 id. 308 ; Wright, 
 Ohio, 742; Blank. 
 
 OBLITERATION. In the absence of 
 statutory provisions to the contrary, the ob- 
 literation of part of a will, leaving it other- 
 wise complete, with the intention by the tes- 
 tator to annul only what was cancelled, leaves 
 the residue valid; 123 Mass. 102; 19 Alb. 
 L. J. 328 ; 39 L. T. (n. s.) 681 ; 22 N. J. 
 Eq. 463. But under the present Wills Act 
 in England ; 1 Vict. c. 26 ; any obliterations 
 or other alterations must be duly attested as 
 is required for the execution of a will, except 
 that such attestation may be limited to the 
 alterations ; 1 Wms. Exec. 144. For a 
 review of the cases see note to 25 Am. Rep. 
 35; Wills. 
 
 OBREPTION. Acquisition of escheats, 
 etc. from sovereign, by making false repre- 
 s,entations. Bell, Dfc. Subreption; Oal. 
 Lex. 
 
 OBROGATION. The annulling a law, 
 in whole or in part, by passing a law contrary 
 to it. The alteration of a law. Vicat, Voc. 
 Jur. ; Calv. Lex. 
 
 OBSCENITY. In Criminal Law. 
 
 Such indecency as is calculated to promote 
 the violation of the law and the general cor- 
 ruption of morals. In all cases the indict- 
 ment must aver exposure and offence to the 
 community generally ; mere private indecency 
 is not indictable at common law ; 2 Whart. 
 Or. L. §§ 1431, 1432. 
 
 The exhibition of an obscene picture is an 
 indictable offence at common law, although 
 not charged to have been exhibited in public, 
 if it be averred that the picture was exhibited 
 to sundry persons for money; 2 S. & R. 91. 
 The Stat. 20 and 21 Vict. c. 83, gives sum- 
 mary powers for the searching of houses in 
 which obscene books, etc. , are suspected to be 
 
OBSERVE 
 
 326 
 
 OCCUPAKT, OCCUPIER 
 
 kept, and for the seizure and destruction of 
 such books. By various acts'of congress, the 
 importation and circulation through the mails 
 or otherwise, of obscene literature or articles 
 of any kind is rendered punishable with fine 
 or imprisonment; E. S. §§ 2491, 3893, 5389. 
 See 8 Phila. 453 ; 126 Mass. 46 ; 92 111. 182. 
 Legislative .provisions forbidding the keeping, 
 exhibition, or sale of indecent books or pic- 
 tures, and authorizing their destruction if 
 seized, are within the police powers of the 
 states and are constitutional ; Cooley, Const. 
 Lim. 749. 
 
 OBSERVE. In Civil Law. To per- 
 form that which has been prescribed by some 
 law or usage. Dig. 1. 3. 32. 
 
 OBSOLETE. A term applied to laws 
 which have lost their efficacy without being 
 repealed. 
 
 A positive statute, unrepealed, can never be 
 repealed by non-user alone ; 4 Teates, 181 , 215 ; 
 1 P. A. Browne, App. 28 ; 13 S. & R. 447. The 
 disuse of a law is at most only presumptive evi- 
 dence that society has consented to such a re- 
 peal : however this presumption may operate on 
 an unwritten law, it cannot, in general, act upon 
 one which remains as a legislative act on the 
 statute-book ; because no presumption can set 
 aside a certainty. A written law may indeed be- 
 come obsolete when the object to which it was 
 intended to apply, or the occasion for which it 
 was enacted, no longer exists ; 1 P. A. Browne, 
 App. 28. "It must be a very strong case," says 
 Chief-Justice Tilghman, " to justify the court in 
 deciding that an act standing on the statute- 
 bools, unrepealed, ' is obsolete and invalid. I 
 will not say that such case may not exist, — where 
 there has been a non-user for a great number of 
 years, — where, from a change of times and man- 
 ners, an ancient sleeping statute would do great 
 mischief if suddenly brought into action, — 
 where a long practice inconsistent with it has 
 prevailed, and specially where from other and 
 latter statutes it might be inferred that in the 
 appprehension of the legislature the old one was 
 not in force." 13 S. & E. 453; Kutherforth, 
 Inst. b. 2, c. 6, s. 19 ; Merlin, Expert. Desuetude. 
 
 OBSTRUCTING- MAIL. See Mail. 
 
 OBSTRUCTING PROCESS. In 
 Criminal Law. The act by which one or 
 more persons attempt to prevent, or do pre- 
 vent, the execution of lawful process. 
 
 The officer must be prevented by actual 
 violence, or by threatened violence accom- 
 panied by the exercise of force, or by those 
 having capacity to employ it, by which the 
 officer is prevented from executing his writ. 
 The officer is not required to expose his per- 
 son by a personal conflict with the offisnder ; 
 2 Wash. C. C. 169. See 3 id. 335 ; 12 Ala. 
 N. s. 199. 
 
 This is an offence against public justice of 
 a very high and presumptuous nature ; and 
 more particularly so where the obstruction is 
 of an arrest upon criminal process. A person 
 opposing an arrest upon criminal process be- 
 comes fliereby partipeps criminis; that is, 
 an accessory in felony, and a principal in 
 high treason ; 4 Bla. Com. 128 ; 2 Hawk. PL 
 Cr. c. 17, s. 1; 1 Russ. Cr. 360. See 2 
 Gall. 15: 2 Chitty, Cr. Law, 145, note a; 3 
 
 73; 15] 
 
 Vt. 110 ; 25 id. 415 ; 2 Strobh. 
 486 ; 4 Am. L. J. 489. 
 
 OBSTRUCTING RAILWAYS. Dn- 
 
 der a statute for the punishment of any who 
 shall wilfully obstruct any engine or carriage 
 passing upon any railroad, so as to endaiirar 
 the safety of any person conveyed therein^ it 
 is not necessary for conviction that any en- 
 sine or carriage should be actually obstructed. 
 It is the character and intention of the act 
 and not the actual consequence of it, which 
 fixes its criminality ; State vs. Kilty, S. C. of 
 Minn., 25 Alb. L. J. 419; see Railway." 
 
 OBVENTIO (Lat. obvenire, to fall in). 
 In Civil Law. Kent or profit accruing from 
 a thing, or from industry. It is generally used 
 in the plural. 
 
 In Old English Law. The revenue of 
 spiritual living, so called. Cowel. Abo, in 
 the plural, offerings. Co. 2d Inst. 661. 
 
 OCCUPANCY. The taking possession of 
 those things corporeal which are without an 
 owner, with an intention of appropriating 
 them to one's own use. 
 
 Pothier defines it to be the title by which one 
 acquires property in a thing which belongs to 
 nobody, by taking possession of it with design of 
 acquiring it. Ti-. du Dr. de ProprWti, n, 20. 
 The CivU Code of Louisiana, art. 3375, nearly 
 following Pothier, defines occupancy to be "A 
 mode of acquiring property by which a thing 
 which belongs to nobody becomes the property 
 of the person who took possession of it with an 
 intention of acquiring a right of ownership in 
 it." Occupancy is sometimes used in the sense of 
 occupation or holding possession ; indeed it has 
 come to be very generally so used in this conn- 
 try in homestead laws, public-land laws, and the 
 like ; 21 Dl. 178; 25 Barb. 54; .4ct of Cong. 
 May 29, 1830 (4 Stat, at L. 420) ; 36 Wise. 73; 
 but this does not appear to be a common legal 
 use of the term, as recognized by English au- 
 thorities. 
 
 To constitute occupancy, there must be 
 a taking of a thing corporeal, belongiiig to 
 no body, with an intention of becoming the 
 owner of it ; Co. Litt. 416'. 
 
 A right by occupancy attaches in the finder 
 of lost goods unreclaimed by the owner; m 
 the captor of beasts fercB naiurce, so long as 
 he retains possession ; 2 Bla. Com. 403 ; the 
 owner of lands by accession, and the owner 
 of goods acquired by confusion. 
 
 It was formerly considered, also, that the 
 captor of goods contraband of war acqnireda 
 right by occupancy; but this is now held 
 otherwise, such goods being now held to he 
 primarily vested m the sovereign, and as be- 
 longing to individual captors only, to the ex- 
 tent and under such regulations as positive 
 laws may prescribe ; 2 Kent, 290. 
 
 OCCUPANT, OCCUPIER. One who 
 has the actual use or possession of a thing- 
 
 When the occupiers of a house areentiHea 
 to a privilege in consequence of such occupa- 
 tion, as to pass along a way, to enjoy a pew, 
 and the like, a person who occupies a part* 
 such house, however small, is entitled to some 
 
OCCUPATION 
 
 327 
 
 OFFER 
 
 ri"ht, and cannot be deprived of it ; 2 B. & 
 A'id. 164 ; 1 Chitty, Pr. 209, 210 ; 4 Qomyns, 
 Dig. 64; 5 W. 199. 
 
 OCCXTPATION. Use of tenure : as, the 
 house is in the occupation of A B. A trade, 
 business, or mystery : as, the occupation of a 
 printer. 
 
 A putting out of a man's freehold in time 
 of war. Co. Litt. s. 412. 
 
 OCCTTPAVIT (Lat.). In Old Practice. 
 The name of a writ which lies to recover the 
 possession of lands when they have been 
 taken from the possession of the owner by oc- 
 cupation (9. v.). 
 
 OCCUPIER. One who is in the enjoy- 
 ment of a thing. 
 
 He may be the occupier by virtue of a law- 
 ful contract, either express or implied, or 
 without any contract. The occupier is, in 
 general, bound to make the necessary repairs 
 to the premises he occupies : the cleansing 
 and repairing of drains and sewers, therefore, 
 is prima facie the duty of him who occupies 
 the premises ; 3 Q. B. 449. 
 
 OCHLOCRAC7. A government where 
 the authority is in the hands of the multitude ; 
 the abuse of a democracy. Vaurafene, Diet, 
 du Langage Politique. 
 
 OCTAVE (Law Lat. utas). la Old Eng- 
 lish Practice. The eighth day inclusive af- 
 ter a feast. 3 Bla. Com. 277. 
 
 OCTO TALES (Lat. eight such). If, 
 when a trial at bar is called on, the number 
 of jurors in attendance is too small, the trial 
 must be adjourned, and a decern or octo tales 
 awarded, according to the number deficient ; 
 as, at common law, namely, a writ to the 
 sheriff to summon eight more such men as 
 were originally summoned. 3 Bla. Com. 
 364. 
 
 ODHALL RIGHT. The same as allo- 
 dial. Odio et atia. See De Odio et atia. 
 
 OP COURSE. That which may be done 
 in the course of legal proceedings without 
 making, any application to the court ; that 
 which 13 granted by the court, without further 
 inquiry, upon its being asked : as, a rule to 
 plead is a matter of course. 
 
 OFFENCE. In Criminal Law. The 
 
 doing that which a penal law forbids to be 
 done, or omitting to do what it commands. 
 In this sense, it is nearly synonymous with 
 crime. In a more confined sense, it may be 
 considered as having the same meaning with 
 misdemeanor ; but it differs from it in this, 
 that it is not indictable, but punishable sum- 
 marily by the forfeiture of a penalty • 1 
 Chitty, Pr. 14. 
 
 OFFER. A proposal to do a thing. 
 
 An offer, as an element of a contract, is a 
 proposal to make a contract. It must be 
 made by the person who is to make the pro- 
 mise, and it must be made to the person to 
 whom the promise is made. It may be made 
 either by words or by signs, either orally or 
 >n writing, and either personally or by a mes- 
 
 senger; but in whatever way it is made, it 
 is not in law an offer until it comes to the 
 knowledge of the person to whom it is made ; 
 Langd. Contr. § 151; 18 Dunl. 1. While 
 an offer remains in force, it confers upon the 
 offeree the power to convert it into a promise 
 by accepting it. The offerer may state how 
 long it Shall remain in force ; and it will then 
 remain in force during the time so stated, un- 
 less sooner revoked; 3 Cush. 224. In the 
 absence of any specification by the offerer, an 
 offer will remain in force a reasonable time 
 unless sooner revoked. As to what will be 
 a reasonable time, no uniform positive rule 
 cai\ be laid down. When an offer is made 
 personally, it will prima facie continue until 
 the interview or negotiation terminates, and 
 longer; 6 Wend. 103. In commercial trans- 
 actions, when an offer is made by mail, the 
 general rule is that the offerer is entitled to an 
 answer by return mail ; but this will not ap- 
 ply in all cases, e.g., when there are several 
 mails each day. In transactions which are 
 not commercial, much less promptitude in 
 answering is required ; Langd. Contr. S 162. 
 
 Where the offer contemplates a unilateral 
 contract, the length of time that the offer will 
 continue in force depends upon different con- 
 siderations. The question is no longer one 
 of accepting the offer orally or by letter, but 
 of performing the consideration. The dura- 
 tion of such an offer, therefore, in the absence 
 of any express limitation, will be measured 
 by the length of time which may be rea- 
 sonably required for the performance of 
 the consideration. When performance 
 of tho consideration has been begun in 
 good faith, it seems that the offer will con- 
 tinue, in the absence of actual revocation, un- 
 til the performance is either completed or 
 abandoned, especially when the performance 
 of the consideration is constantly within the 
 knowledge of the offerer ; Langd. Contr. § 
 155. An offer which contains no stipulation 
 as to how long it shall continue is revocable . 
 at any moment. A stipulation that an offer 
 shall remain open for a specified time, must 
 be supported by a sufficient consideration, or 
 be contained in an instrument under seal, in 
 order to be binding ; Langd. Contr. § 178 ; 3 
 Term, 653. When thus made binding, the 
 offer is not irrevocable, but the only effect is 
 to give the offerer a claim for damages if the 
 stipulation be broken by revoking the offer. 
 
 As an offer can only be made by communi- 
 cation from the offerer to the offeree, so it 
 can only be revoked in the same manner. 
 But the death or insanity of the offerer dur- 
 ing the pendency of the offer, revokes it ; 
 Langd. Contr. § 180. 
 
 An offer can only be accepted in the terms 
 in which it is made ; an acceptance, therefore, 
 which modifies the offer in any particular, 
 goes for nothing ; L. K. 7 Ch. App. 587. 
 
 A man may change his will at any time, if it 
 is not to the injury of another ; he may, there- 
 fore, revoke or recall his offers at any time 
 before they have been accepted ; and, in or- 
 
OFFICE 
 
 328 
 
 OFFICER 
 
 der to deprive him of this right, the offer 
 must have been accepted on the terms in 
 which it was made ; 10 Ves. 438 ; 2 C. & P. 
 553. 
 
 Any qualification of, or departure from, 
 those terms, invalidates the ofler, unless the 
 same be agreed to by the party wlio made it ; 
 4 Wheat. 225 ; 3 Johns. 534 ; 7 id. 470 ; 6 
 Wend. 103. 
 
 When the offer has been made, the party 
 is presumed to be willing to enter into the 
 contract for the time limited, and, if the time 
 be not fixed by the offer, then until it be ex- 
 pressly revoked or rendered nugatory by a 
 contrary presumption ; 6 Wend. 103. See 
 8 S. & R. 243 ; 1 Pick. 278 ; 10 id. 326 ; 12 
 Johns. 190; 9 Port. Ala. 605; 1 Bell, Com. 
 326, 5th ed.; Pothier, Vente, n. 32. 
 And see Acceptance of Contracts ; 
 Assent ; Bid. 
 
 OFFICE. A right to exercise a public 
 function or employment, and to take the fees 
 and emoluments belonging to it. Shelf. 
 Mortm. 797 ; Cruise, Dig. Index ; 3 S. & R. 
 149. An office may exist without an incum- 
 bent ; 28 Cal. 382. 
 
 Judicial offices are those which relate to 
 the administration of justice, and which must 
 be exercised by persons of sufficient skill and 
 experience in the duties which appertain to 
 them. 
 
 Military offices are such as are held by sol 
 •Hers and sailors for military purposes. 
 
 Ministerial offices are those which give the 
 officer no power to judge, of the matter to be 
 <lone, and require him to obey the mandates 
 of a superior. 7 Mass. 280. See 5 Wend. 
 170; 10 id. 514; 8Vt. 512; 1 111.280; 12 
 Ind. 569. It is a general rule that a judicial 
 office cannot be exercised by deputy, while a 
 ministerial may. 
 
 Political offices are such as are not con- 
 nected immediately with the administration 
 of justice or the execution of the mandates 
 of a superior officer : the offices of the presi- 
 dent of the United States, of the heads of 
 departments, of the members of the legisla- 
 ture, are of this number. 
 
 In England, offices are public or private. 
 The former affect the people generally ; the 
 latter are such as concern particular districts 
 belonging to private individuals. In the 
 United States, all offices, according to the 
 above definition, are public ; but in another 
 sense employments of a private nature are 
 also called offices : for example, the office of 
 president of a bank, the office of director of 
 a corporation. For the incompatibility of 
 office, see Incompatibility ; 4 S. & R. 
 277; 4 Co. Inst. 100; Corny ns. Dig. b. 7. 
 And see, generally, 3 Kent, 362 ; Cruise, 
 Dig. tit. 25; 16 Viner, Abr. 101; Ayliffe, 
 Parerg. 395; Pothier, Traits des Choses, 
 , § 2 ; 17 S. & R. 219 ; 6 Wall. 385 ; 22 Barb. 
 695 ; 29 Ohio, 347 ; 27 Am. Rep. 754 ; 
 Mandamus ; Quo Waukanto. 
 
 For the word " office," as used of a place 
 for transacting public business, see 6 Gush. 
 
 181. See, as to tenure of office, R.S. 881747 
 1775. See Rank. 
 
 OFFICE-BOOK. A book kept in a pub- 
 lie officer not appertaining to a court, author- 
 ized by the law of any state. 
 
 An exemplification of any such office-book ^ 
 when authenticated under the act of congress 
 of 27th March, 1804, is to have such faith 
 and credit given to it in every court and office 
 within the United States as such exemplifi. 
 cation has by law or usage in the courts or 
 offices of the state from whence the same has 
 been taken. See Foreign Laws ; Foreibx 
 Judgment. 
 
 OFFICE-COPT. A transcript of a re- 
 cord or proceeding filed in an office estab- 
 lished by law, certified under the seal of the 
 proper officer. 
 
 OFFICE POUND. In Bngliah Law. 
 
 When an inquisition is made to the king's use 
 of any thing, by virtue of office of him -who 
 inquires, and the inquisition is found, it is 
 said to be office found. See Inqdest or 
 Office. 
 
 OFFICE GRAITT. See Grant. 
 
 OFFICE OF A JUDGE. In Bngliah 
 La-w. A criminal suit in an ecclesiastical 
 court, not being directed to the reparation of 
 a private injury, is regarded as a proceeding 
 emanating from the office of the judge, and 
 may be instituted by the mere motion of the 
 judge. But in practice these suits are insti- 
 tuted by private individuals, with the permis- 
 sion of the judge or his surrogate ; and the 
 private prosecutor, in any such ca?e is, accord- 
 ingly, said io promote the office of the judge, 
 Coote's Eccl. Practice ; Moz. & W. 
 
 OFFICER. He who is lawfully invested 
 with an office. An office in this country is 
 not property, nor are the prospective fees of 
 an office the property of the incumbent ; 37 
 N. Y. 518. He cannot sell, or purchase, or 
 encumber his office. Payment of salary to a 
 de facto officer is a good defence to an action 
 by a de jure officer for the same salary after 
 he had acquired possession ; 68 N. Y. 279 ; 
 s. c. 23 Am. Rep. 168 ; 30 Barb. 193; 20 
 Kans. 298 ; 12 Ad. & E. 702 ; but see con. 
 tra, 12 Heisk. 499 ; 8. C. 27 Am. Eep. 754; 
 28 Cal. 21 ; 53 111. 428. 
 
 Executive officers are those whose duties 
 are mainly to cause the laws to be executed. 
 
 For example, the president of the United 
 States of America, and the several governors of 
 the different states, are executive officers. Their 
 duties are pointed out in the national constitu- 
 tion and in the constitutions of the several 
 states. 
 
 Legislative officers are those whose duties 
 relate mainly to the enactment of laws, such 
 as members of congress and of the sevenil 
 state legislatures. 
 
 These officers are confinea in their duties, by 
 the constitution, generally to make laws ; 'hougfl 
 sometimes, in cases of iinpeachment, one of tne 
 houses of the legislature exercises judicial func- 
 tions somewhat similar to those of agrandjuij? 
 
OFFICIAL 
 
 329 
 
 OHIO 
 
 by preBenting to the other articles of impeach- 
 ment, and the other house acts as a court in try- 
 ing such impeachment. The legislatures have, 
 besides, the power to inquire into the conduct of 
 their members, judge of their elections, and the 
 like. 
 
 Judicial officers are those whose duties are 
 to decide controversies between individuals, 
 iind accusations made in the name of the pub- 
 lic ao-ainst persons charged with a violation 
 of the law. 
 
 Ministerial officers are those whose duty it 
 is to execute the mandates, lawfully issued, 
 of their superiors. 
 
 Military officers are those who have com- 
 mand in the army ; and 
 
 Naval officers are those who are in com- 
 mand in the navy. 
 
 Officers are also divided into public officers and 
 those who are not public. Some officers may 
 bear both characters : lor 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; 18 Me. 155. 
 
 Officers are required to exercise the func- 
 tions which belong ty their respective offices. 
 The neglect to do so may, in some cases, sub- 
 ject the offender to an indictment ; 1 Yeates, 
 519; and in others he will be liable to the 
 party injured ; 1 Yeates, 506. 
 
 The word " officer" has been held strictly ap- 
 plicable, among others, in the following eases : 
 persons entrusted by authority of law with the 
 receipt of public money ; 74 Penn. 134 ; a deputy 
 of a United States mai'shal ; 3 Bla. 435 ; the 
 legally appointed receiver of a national bank ; 3 
 Ben. 303 ; clerks in the executive departments 
 of the federal or of a state goverment ; 10 Ct. 
 CI. 426 ; a collector of city taxes ; 7 Mete. 153 ; 
 a representative in a state legislature ; 3 N. H. 
 246 ; president and directors of a bank, or treas- 
 urer of a railroad corporation ; 8 Mete. 247 ; 10 
 Gray, 173 ; while the reverse has been held as to : 
 one who receives no certificate of appointment, 
 takes no oath, and has no term of office ; 43 N. 
 Y, Sup. Ct. 48i J one who has been elected, but 
 has not qualified ; 1 Neb. 130 ; 38 Md. 1 ; a 
 special deputy of a sheriff ; 41 Ala. 399 ; a road 
 supervisor ; 35 Iowa, 361 ; 50 How. Pr. 353 ; a 
 police juryman ; 25 La. An. 138 ; a pension of- 
 ficer of the United States ; 33 Miss. 508 ; a pub- 
 lic printer ; 70 N. C. 93 ; see SO Wall. 179 ; 82 
 id. 492. 
 
 OFFICIAL. In Old CivU Law. The 
 
 person who was the minister of, or attendant 
 upon, a magistrate. 
 
 In Canon Law. The person to whom 
 the bishop generally commits the charge of 
 his spiritual jurisdiction bears this name. 
 Wood, Inst. 80, 505 ; Merlin, R6pert. 
 
 OFFICINA JUSTITI.a!. The work- 
 shop or office of justice. In English Law. 
 The chancery was formerly so called, because 
 all writs issued from it, under the great seal, 
 returnable into the courts of common law. 
 See Chancery. 
 
 OHIO. One of the states of the Ameri- 
 can Union. 
 
 Massachusetts, Connecticut, and Virginia 
 claimed, under their respective charters, the terri- 
 tory lying northwest of the river Ohio. At the 
 solicitation of the continental congress, these 
 claims were, soon after the close of the war of 
 independence, ceded to the United States. Vir- 
 ginia, however, reserved the ownership of the soil 
 of three million seven hundred thousand acres 
 between the Scioto and the Little Miami rivers, 
 for military bounties to the soldiers of her line 
 who had served in the revolutionary war ; and 
 Connecticut reserved three million six hundred 
 and sixty-six thousand acres in northern Ohio, 
 now usually called " the Western Reserve." The 
 history of these reservations, and of the several 
 "purchases " under which land-titles have been 
 acquired in various parts of the state, will be 
 found in Albachi's Annals of the West ; in the 
 Preliminary Sketch of the History of Ohio, in 
 the first volume of Chase's Statutes of Ohio ; and 
 in Swan's Land Laws of Ohio. The conflicting 
 titles of the states having been extinguished, con- 
 gress, on July 13, 1787, passed the celebrated or- 
 dinance for the government of the territory 
 northwest of the river Ohio. 1 Curwen's Re- 
 vised Statutes of Ohio, 86. It provided for the 
 equal distribution of the estates of intestates 
 among their children, gave the widow dower as 
 at common law, regulated the execution of wills 
 and deeds, secured perfect religious toleration, 
 the right of trial by jury, judicial proceedings 
 according to the course of the common law, the 
 benefits of the writ of habeas corpus, security 
 against cruel and unusual punishments, the right 
 of reasonable bail, the inviolability of contracts 
 and of private property, and declared that " there 
 shall be neither slavery nor involuntary servitude 
 in the said territory, otherwise than in the pun- 
 ishment of crimes whereof the party shall have 
 been duly convicted." 
 
 These provisions have been, in substance, in- 
 corporated into the constitution and laws of Ohio, 
 as well as of the other states which haveeince been 
 formed within " the territory." The legal effect 
 of the ordinance has been much discussed, and 
 the supreme court of Ohio and the circuit court 
 of the United States for the seventh circuit, on 
 the one hand, and the supreme court of the 
 United States, on the other, have arrived at di- 
 rectly opposite conclusions in respect to it. By 
 the former it was considered a compact not in- 
 compatible with state sovereignty, and as binding 
 on the state of Ohio as her own constitution ; while 
 the latter treated it as a mere temporary statute, 
 which was abrogated by the adoption of the con- 
 stitution of the United States. 5 Ohio, 410 ; 7 id. 
 416 ; 17 id. 425 ; 1 McLean, 336 ; 3 id. 226 ; 3 
 How. 212, 589 ; 10 id. 82; s. c, 8 West. L. J., 
 232. 
 
 On the 30th of October, 1802, congress passed 
 an act making provision for the formation of a 
 state constitution, under which, in 1803, Ohio 
 was admitted into the Union, under the name of 
 " the State of Ohio." This constitution was 
 never submitted to a vote of the people. It con- 
 tinued to be the organic law of Ohio until Sep- 
 tember 1, 1851, when it was abrogated by the 
 adoption of the present constitution. 
 
 The bill of rights which forms a part of this 
 constitution contains the provisions common to 
 such instruments in the constitutions of the dif- 
 ferent states. Such are the prohibitions against 
 any laws impairing the right of peaceably as- 
 sembling to consult for the common good, to 
 bear arms, to have a trial by jury, to worship ac- 
 cording to the dictates of one's own conscience, 
 to have the benefit of the writ of Jiabeas corpus, 
 to be allowed reasonable bail, to be exempt from 
 excessive fines and cruel and unusual punish- 
 
OHIO 
 
 830 
 
 OHIO 
 
 ments, not to be held to answer for a capital or 
 otherwise infamous crime unless on presentment 
 or indictment of a grand jury, to have a copy of 
 the indictment, the aid of counsel, compulsory 
 process for witnesses, a speedy and public trial, 
 to be privileged from testifying against one's self 
 or tobe twice put in jeopardy for the same offence. 
 Provision is also made against the existence of 
 slavery, against transporting offenders out of the 
 state, against imprisonment for debt unless in 
 cases of fraud, against granting hereditary 
 honors, against quartering soldiers in private 
 houses, for the security of persons from unrea- 
 sonable arrest or searches, and for the freedom 
 of speech and the press. 
 
 Every male citizen of the United States, 
 twenty-one years of age, who has resided in the 
 state one year, and in the county, township, or 
 ward such period as may be fixed by law, next 
 preceding election,, is entitled to vote. 
 
 The Leoislative Power. — This is lodged in a 
 General Assembly, consisting of a Senate and 
 House of Representatives. 
 
 The Senate is composed of thirty-five members, 
 elected biennially, one in each of the senatorial 
 districts into which the state is divided, for the 
 term of two years. Senators must have resided 
 In their respective districts one year next before 
 election, unless absent on business of the state 
 or the United States. 
 
 The House of Hepresentatives is composed of 
 one hundred members, elected biennially, one in 
 each of the representative districts of the state, 
 for the term of two years, by the voters of the 
 district. A. representative must have resided one 
 year next preceding the election in the county or 
 district for which he is elected. No person can 
 be elected to either house who holds office under 
 the United States or an office of profit under the 
 state. Provision is made for re-districting the 
 state every ten years from 1851, by dividing and 
 combining the existing districts, and affbrding 
 additional representatives during a part of the 
 decennial period to those districts which have a 
 surplus population over the ratio. The assembly 
 cannot grant special charters to corporations, 
 but may provide for their creation by general 
 laws. No association with banking powers can 
 be authorized until the act creating it has been 
 submitted to the people and approved by a ma- 
 jority voting at that election. A debt cannot 
 be contracted for purposes of internal improve- 
 ment. Cities and incorporated''villages are cor- 
 porations under general laws. The general as- 
 sembly may not pass retroactive laws, but may 
 authorize courts to carry into effect, upon such 
 terms as may be just and equitable, the manifest 
 intention of parties and officers, by curing omis- 
 sions, defects, and errors in instruments and 
 proceedings arising out of their want of confor- 
 mity with the laws of the state. 
 
 The Exeootive Department. — The Governor 
 Is elected biennally, for the term of two years 
 from the second Monday of January next follow- 
 ing his election, and until his successor is quali- 
 fied. He may require information. In writing, 
 from the officers in the executive department, 
 upon any subject relating to the duties of their re- 
 spective offices, and shall see that the laws are 
 faithfully executed ; may, on extraordinary occa- 
 sions, convene the general assembly by procla- 
 mation ; in case of disagreement between the 
 two houses in respect to the time of adjourn- 
 ment, has power to adjourn the general assembly 
 to such time as he may think proper, but not be- 
 yond the regular meetings thereof; is command- 
 er-in-chief of the military and naval forces of 
 
 the state, except when they shall be called Into 
 the service of the United States ; and has power 
 after conviction, to grant reprieves, commuta! 
 tions, 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 prescribeil 
 by law. Upon conviction for treason, he mav 
 suspend the execution of the sentence, and tL 
 port the case to the general assembly at its next 
 meeting, when the general assembly shall either 
 pardon, commute the sentence, direct its execn- 
 cution, or grant a further reprieve. He must 
 communicate to the general assembly, at every 
 regular session, each case of reprieve, commu- 
 tation, or pardon granted," stating the name and 
 crime of the convict, the sentence, its date, and 
 the date of the commutation, . pardon, or re. 
 prieve, with his reasons therefor. 
 
 He has no veto power upon the acts of the 
 legislature, and his power of appointment is ex- 
 tremely limited. 
 
 The lAeutenant-Governor is elected at the same 
 time, and for the same term of office, as the 
 governor. 
 
 In case of the death, impeachment, resigna- 
 tion, removal, or other disability of the gover- 
 nor, the powers and duties of the office, for the 
 residue of the term, or until he is acquitted or 
 the disability be removed, devolve upon the lieu- 
 tenant-governor, f 
 
 He is president of the senate ex officio but pos- 
 sesses only a casting vote. 
 
 A Secretary of State, a Treasurer, and an At- 
 torney-General are also elected at the same time, 
 for the same term. 
 
 An Avditor is elected once in four years. If 
 any of these offices become vacant, the governor 
 appoints incumbents to serve till the next gene- 
 ral election, after thirty days, occurs, when a 
 successor is elected for a full term. 
 
 The Judicial Power. — The Supreme Court 
 consists of five judges, elected by the people for 
 five years. The judges are so classified that one 
 goes out of office each year. It has original 
 jurisdiction over writs of quo warranto, manda- 
 mus, habeas corpus, and procedendo, and a 
 large appellate jurisdiction by writs of error 
 from inferior courts. It may issue writs of enor 
 and certiorari in any criminal case, and super- 
 sedeas in any ease, and all writs, not provided 
 for, which are necessary to enforce the adminis- 
 tration of justice. Writs of error, certiorari, 
 habeas corpus, and supersedeas may be issued 
 by the judge in vacation. 
 
 The District Court is composed of one judge 
 of the supreme court and the judges of the com- 
 mon pleas court for the district in which the 
 court Is held. One session at least of this 
 court is to be held annually in each county, or 
 at least three sessions annually in three places 
 in the district. It has like original and appel- 
 late jurisdiction with the supreme court upon 
 writ of error granted by the supreme court, or 
 some judge thereof in vacation. 
 
 The Court of Common Fleas under the constitu- 
 tion of 18.51, was originally composed of three 
 judges, elected by the people in each of the nine 
 districts into which the state was divided, for 
 the term of five years. Each of these nine dis- 
 tricts was divided into three parts, followmg 
 county-lines, and as nearly equal as possible; 
 and in each of these sub-districts one judge was 
 elected. The general assembly may increase " 
 diminish the number of judges in any d'STO'i 
 and may alter the number of districts, and m 
 in several districts increased the number w 
 
om 
 
 331 
 
 OMNIA PERFOEMAVIT 
 
 judges, and has increased the number of dis- 
 tiicos to ten. Courts of common pleas are to he 
 held by one or more of these judges ; and more 
 than one common pleas court may be held in 
 the district at the same time. This court has 
 original jurisdiction of all civil causes where the 
 matter in controversy exceeds one hundred dol- 
 lars, and a service, personal or by attachment of 
 property, can be made in the county or where 
 the property in question is situated in the 
 county. This court has also almost exclusively 
 the criminal jurisdiction, with the exception of 
 a petty jurisdiction exercised in some instances 
 by local police courts. It has a supervisory 
 jurisdiction in cases of distribution of decedent's 
 property or the probate courts. Acts 1857, p. 
 202. It may effectuate the intentions of parties, 
 by curing defective instruments. Acts 1859, p. 
 40. It exercises appellate jurisdiction also of 
 cases brought from justices of the peace and &.11 
 other inferior judicial tribunals. A writ of error 
 lies from this court to the district court. 
 
 A Probate Court Is held in each county by a 
 probate judge, elected for three years by the 
 people of the county. This court has jtirisdic- 
 tion in probate and testamentary matters, the 
 appointment of administrators and guardians, the 
 settlement of the accounts of executors, admin- 
 istrators, 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. 
 
 A very extensive jurisdiction is now exercised 
 over the administration of ti-usts upon assign- 
 ments made by failing debtors for the benefit of 
 their creditors, and over judgment debtors who 
 are accused of secreting their effects. 
 
 Bwperior Courts have been established, under 
 authority of the constitution. In Cincinnati, and 
 Dayton, whose jurisdiction in civil causes is con- 
 current with the courts of common pleas within 
 their respective territorial limits. Their deci- 
 sions are supervised by the supreme court, by 
 writ of error allowed by that court, or by one of 
 its judges in vacation. 
 
 Juritpnidence. — ^The common law of England 
 is the basis of the civil law of this state, modi- 
 fled by the judicial rejection of that part which 
 is " inapplicable to the condition of the people 
 of Ohio." A revision and consolidation of the 
 statutes was adopted by the general assembly in 
 June, 1879, and published in two volumes under 
 the title of the "Revised Statutes of Ohio, 1880." 
 This work contains all the statutes of a general 
 nature In force on January 1, 1880. No attempt 
 has ever been made to arrange or classify the 
 great mass of local legislation, including the 
 charters of banks, turnpikes, railroads, and 
 manufacturing companies, the boundaries of 
 counties, sales of school lands, acts for the relief 
 of private persons, and others of a kindred na- 
 ture ; and complete editions of these latter laws 
 have now become very rare. 
 
 The criminal law of the state is wholly statu- 
 tory, and there are no offences recognized as 
 common-law offences. The formal distinction 
 between actions at law and In equity is 
 abolished. Actions are brought by a petition 
 stating the facts of the case. 
 
 OIL. Coal oil, or petroleum, is a mineral, 
 and forms part of the realty ; 9 Pitts. L. J. 
 N. s. 139. 
 
 OLD NATURA BREVIUM. The 
 title of an English book, so called to distin- 
 Suish it from Fitzherbert's work entitled 
 Natura Brevium. 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 ST7LZi. The mode of reckoning 
 time in England until the year 1752, when 
 the New Style, at present in use, and which 
 had prevailed in the Koman Catholic coun- 
 tries of the continent since 1582, was intro- 
 duced. According to the O. S., the year 
 commenced on the 25th of March ; every 
 fourth year wa.s a leap-year, instead of, as 
 now, but 97 leap years in 400 years ; Moz. & 
 
 w. 
 
 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 8vo. in 
 1764, by Serjeant Hawkins, in a selection of 
 Coke's Law Tracts. 
 
 OLEROIT, LAVTS OF. A maritime 
 code promulgated by Eleanor, duchess of 
 Guienne, mother of Kichard 1., at the isle 
 of Oleron, — whence their name. They were 
 modified and enacted in England under Kich- 
 ard I., and again promulgated under Henry 
 III. and Edward III., and are , constantly 
 quoted in proceedings before the admiralty 
 courts, as are also the Bhodian Laws. Co. 
 Lift. 2. See Code. 
 
 OLIGARCHY (Gr. a?u>j and apa^. The 
 government of a few). A name 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 exam- 
 ple, under the decemvirs, when they became 
 the only magistrates in the commonwealth. 
 
 OLOGRAPH. A term which signifies 
 that an instrument is wholly written by the 
 party. See La. Civ. Code, art. 1581 ; Code 
 Civ. 970 ; 5 TouUier, n. 357 ; 1 Stu. Low. C. 
 327 ; 2 Bouvier, Inst. n. 2139. And see 
 Testament; Will. 
 
 OMISSION. The neglect to perform 
 what the law requires. 
 
 When a public law enjoins on certain offi- 
 cers 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. 
 
 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. See Commission ; 
 Nuisance. 
 
 OMNIA PERPORMAVIT (Lat. he 
 has done all). In Pleading. A good plea 
 in bar where all the covenants are in the af- 
 firmative. 1 Me. 189. 
 
OMNIUM 
 
 332 
 
 OPEN COURT 
 
 OMNIUM (Lat.)- In MercantUe Law. 
 
 A term used to express the aggregate value 
 of the difi'erent stock in which a loan is usu- 
 ally funded. 2 Esp. 361 ; 7 Term, 630. 
 
 ON ACCOUNT OF WHOM IT MAY 
 CQNCZiRN, FOR WHOM IT MAT 
 CONCXiRN. A clause in policies of insu- 
 rance, under which all are insured who have 
 an insurable interest at the time of effecting 
 the insurance and who were then contem- 
 plated by the party eflecting the insurance. 
 2 Parsons, Marit. Law, SO. 
 
 ONCR IN JliOFARDT. See Jeop- 
 ardy. 
 
 ONERARI NON (Lat. ought not to be 
 burdened). In Pleading. The name of a 
 plea by which the defendant says that he 
 ought not to be charged. It is used in an ac- 
 tion of debt ; 1 Saund. 290, n. a. 
 
 O. Ni. In the exchequer, when the sheriff 
 made up his account for issues, amerciaments, 
 etc.., he marked upon each head O. Ni., which 
 denoted oneratur, nisi habeat sufficientem ex- 
 onerationem, and presently he became the 
 king's debtor, and a debet was set upon his 
 head ; whereupon the parties paravaile became 
 debtors to the sheriff, and were discharged 
 against the king, etc.; 4 Inst. 116. But 
 sheriffs now account to the commissioners for 
 auditing the public accounts ; Whart. Lex. 
 
 ONERIS FERZJNDI (Lat. of bearing a 
 burden). In 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. 
 
 The owner of the servient building is 
 bound to repair and keep it sufficiently strong 
 for the weirfit it has to bear. Dig. 8. 2. 23 ; 
 2 Bouvier, Inst. n. 1627. 
 
 ONEROUS CAUSE. In CivU Law. 
 A valuable consideration. 
 
 ONEROUS CONTRACT. In CIvU 
 Iiavr. One made for a consideration given 
 or promised, however small. La. Civ. Code, 
 art. 1767. 
 
 ONEROUS DEED. In Scotch Law. 
 A deed_ given for valuable consideration. 
 Bell, Diet.; Consideration. 
 
 ONEROUS GIFT. The gift of a thing 
 subject to certain charges imposed by the 
 giver on the donee. Pothier, Obi. 
 
 ONOMASTIC. A term applied to a sig- 
 nature which is in n, different handwriting 
 from the body of the instrument. 2 Benth. 
 Jud. Ev. 460, 461. 
 
 ONUS PROBANDI (Lat.) In Evi- 
 dence. The burden of proof. 
 
 It is a. general rule that the party who al- 
 leges 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 plain- 
 tiff" replies a promise after the defendant had 
 
 attained his age,, it is sufficient for the plain 
 tiff" to prove the promise, and it lies on the 
 defendant to show that he was not of age at 
 the time ; 1 Term, 648. But where thi ne. 
 gative involves a criminal omission by the 
 party, and, consequently, where the law by 
 virtue of the general principle, presumes hu 
 innocence, the affirmative of the fact is also 
 presumed. See 11 Johns. 513 ; 19 id. 345- 
 9 Mart. La. 48 ; 3 Mart. La. n. s. 576. ' 
 
 In general, wherever the law presumes the 
 affirmative, it lies on the party who deniesthe 
 fact to prove _the negative ; as when the la¥ 
 raises a presumption as to the continuance of 
 life, the legitimacy of children born in wed- 
 lock, or the satisfaction of a debt. See 
 generally ;1 Phill. £v. 156; 1 Stark. Ev' 
 376; Rose. Civ. Ev. 51; Roscoe, Cr. Ev 
 55 ; Bull. N. P. 298 ; 2 Gall. 485 ; iM'Cord 
 573 ; 1 Houst. 44 ; 12 Viuer. Abr. 201. 
 
 The party on whom the onus probandi 'hi 
 is entitled to begin, notwithstanding the tech- 
 nical form of the proceedings ; 1 Stark. Ev. 
 584; 3 Bouvier, Inst. n. 3043. SeeBuBDEN 
 OF Proof. 
 
 OPEN. To begin. He begins or opens 
 who has the affirmative of an issue. 1 Greenl. 
 Ev. § 74. 
 
 To open a case is to make a statement of the 
 pleadings in a case, which is called the opening. 
 This should be concise, very distinct, and per- 
 spicuous. Its use is to enable the judge and 
 jury to direct their attention to the real meritsof 
 the ease and the points in issue ; 1 Stark. 439 ; 2 
 id. 317. 
 
 To vacate ; to relieve a party who has an 
 equitable right to such relief against a pro- 
 ceeding which is to him a formal or legal bar ; 
 to allow a re-discussion on the merits. 
 
 For example, to open a rule of court. 8 Chitty, 
 Bail, 265 ; 5 Taunt. 628 ; 1 Mann. & G. 656| 7 
 Ad. & E. 519. To open a judgment or default. 
 4 K. I. 324 ; 1 Wise. 631. See OPENrss A Jma- 
 MENT. To open an account ; to make a judicial 
 announcement, that a party, e. g. an executor, 
 shall not be absolutely bound by the account he 
 has rendered, but may show that it contains 
 errors to his prejudice. To open a marriage 
 settlement or an estate-tail ; t. e. to allow a neir 
 settlement of the estate. To open biddings ; i. «. 
 to allow a re-sale. See Opening Biddings. To 
 open contract. 44 Me. 206. 
 
 OPEN ACCOUNT. A running or un- 
 settled account; not completely settled, but 
 subject to future adjustment. 1 Alii. 62; 
 6 id. 438 ; 21 La. An. 406. 
 
 OPEN A CREDIT. To accept or pay 
 the draft of a correspondent who has not fur- 
 nished funds. Pardessus, n. 296. 
 
 OPEN COURT. A court formally opened 
 and engaged in the transaction of all judicial 
 functions. 45 Iowa, 501. 
 
 A court to which all persons have free ac- 
 cess as spectators while they conduct them- 
 selves in an orderly manner. 
 
 The term is used in the first sense as distiu- 
 guishing a court from a judge sitting In cnam- f 
 bers or informally for the transaction of 6n«^ 
 matters as may be thus transacted. See OaiM- 
 
 BEBS; COUKT. 
 
OPEN ENTRY 
 
 338 
 
 OPERATIVE WORDS 
 
 In the second sense, all courts in the United 
 States are open ; but in England, formerly, while 
 the parties and probably their witnesBcs were ad- 
 mitted freely in the courts, all other persons were 
 required to pay iu order to obtain admittance. 
 Stat. 13 Edw. I. cc. 42, 44 ; Barr. on the Stat. 
 126, 137. See Prin. of Pen. Law, 165. 
 
 OPEN ENTRY. See Entry. 
 
 OPEN LAW. The waging of law ; 
 Magna Charta, c. 21. 
 
 OPEN POLICY. An open policy is one 
 in whicli the amount of the interest of the 
 insured is not fixed by the policy, and is to 
 be ascertained in case of loss. See Policy. 
 
 OPENING. In American Frac.tice. 
 The beginning. The commencement. The 
 first address of the counsel. 
 
 The opening is made immediately upon the 
 impanelling of the jury : it embraces the 
 reading of such of the pleadings as may be 
 necessary, and a brief outline of the case as 
 the party expects to prove it, where there is a 
 trial, or of the argument, where it is ad- 
 dressed to the court. 
 
 OPENING AND CLOSING. After the 
 evidence is all in, the plaintiff has tlie privi- 
 lege of the opening and closing or summing 
 up speeches to the jury ; in the closing ad- 
 dress he should confine himself to a reply to 
 defendant's speech. It seems doubtful whether 
 it is within the discretion of the court to in- 
 terfere with this established mode of pro- 
 cedure ; at least it should only be done with 
 great caution ; 36 Mich. 254; 32 Ohio, 224; 
 « Daly, 61 ; 16 West. Jur. 18. See Best's 
 Right to Begin and Reply ; Trial. 
 
 In English Practice. The address made 
 immediately after the evidence is closed. 
 Such address usually states — first, the full 
 extent of the plaintiff's claims, and the cir- 
 cumstances under which they are made, to 
 show that they are just and reasonable ; 
 second, at least an outline of the evidence by 
 which those claims are to be established ; 
 third, the legal grounds and authorities in 
 favor of the claim or of the proposed evi- 
 dence ; fourth, an anticipation of the expected 
 defence, and statement of the grounds on 
 which it is futile, either in law or justice, and 
 the reasons why it ought to fail. But the 
 <;ourt will sometimes restrict counsel from an 
 anticipation of the defence. 3 Chitty Pr. 
 «81. 
 
 OPENING A COMMISSION. See 
 Courts of Assize and Nisi Prius. 
 
 OPENING BIDDINGS. Ordering a 
 resale. When estates are sold under decree 
 of equity to the highest bidder, the court 
 will, on notice of an offer of a sufficient ad- 
 vance on the price obtained open the bid- 
 dings, i. e. order a re-sale. But this will not 
 generally be done after the confirmation of 
 the certificate of the highest bidder. So, by 
 analogy, a re-sale has been ordered of an es- 
 tate sold under bankruptcy. Sugd. Vend. 
 SO; 22 Barb. 167; 8 Md. 322; 9 id. 228; 
 13 Gratt. 639 ; 4 Wise. 242 ; 31 Miss. 614. | 
 
 In England, by stat. 30 & 31 Vict. c. 48, s. 7, 
 the opening of biddings is now allowed only in 
 cases of fraud or misconduct in the sale ; Wms. 
 R. P. The courts of this country also will not 
 generally open the biddings merely to obtain a 
 higher price, but require irregularity, fraud, or 
 gross inadequacy of price to be shown. 
 
 OPENING A JUDGMENT. In 
 Practice. An act of the court by which a 
 judgment is so far annulled that it cannot be 
 executed, although it still retains some quali- 
 ties of a judgment : as for example, its bind- 
 ing operation or lien upon the real estate of 
 the defendant. 
 
 The opening of the judgment takes place 
 when some person having an interest makes 
 affidavit to facts which, if true, would render 
 the execution of such judgment inequitable. 
 The judgment is opened so as to be in effect 
 an award of a collateral issue to try the facts 
 alleged in the affidavit; 6 W. & S. 493, 494. 
 
 The rule to open judgment and let defendant 
 into a defence is peculiar to Pennsylvania prac- 
 tice, and is a clear example of our system of 
 administering equity under common law forms. 
 By practice it is confined to judgments by de- 
 fault and those entered on warrants of attorney 
 to confess, etc. It was, however, devised in the 
 absence of a court of chancery, as a substitute 
 for a bill in equity, to enjoin proceedings at 
 law ; Mitchell's " Motions and Rules ;" 49 Penn. 
 36.5 ; 8 Phila. 553 ; 3 Watts, 379 ; 6 W. N. C. 
 484. 
 
 OPENING OP A POLICY OP IN- 
 SURANCE. The question has been made 
 whether, and in what cases, if any, the valua- 
 tion in a valued policy shall be opened. The 
 valuation, being a part of the agreement of 
 the parties, is not to be set aside as between 
 them in any case. The question is, how 
 shall it be treated where only a part of the 
 subject insured and valued is put at a risk, 
 and also in the settlement of a particular 
 average ? and the answer is the same in both 
 cases : viz., when the proportion or rate per 
 centum put at risk or lost is ascertained, the 
 agreed valuation of the whole is to be ap- 
 pUed to the part put at risk or the proportion 
 lost, pro rata. 2 Phill. Ins. 1203. 
 
 OPERATION OF LAW. A term ap- 
 plied to indicate the manner in which a party 
 acquires rights without any act of his own : 
 as, the right to an estate of one who dies 
 intestate is cast upon the heir at law, by op- 
 eration of law ; when a lessee for life enfeoffs 
 him in reversion, or when the lessee and lessor 
 join in a feoffment, or when a lessee for life 
 or years accepts a new lease or demise from 
 the lessor, there is a surrender of the first 
 lease by operation of law ; 5 B. & C. 269 ; 9 
 id. 298; 2 B. & Ad. 119; 5 Taunt. 518. 
 See Descent ; Purchase. 
 
 OPERATIVE. A workman ; one em- 
 ployed to perform labor for another. See 1 
 Penn. L. J. 368; 3 C. Rob. 237; 2 Cra. 
 240, 270. 
 
 OPERATIVE WORDS. In a deed, 
 or lease, are the words which effect the trans- 
 action of which the instrument is the evi- 
 
OPINION 
 
 334 
 
 OPINION 
 
 dence ; the terms generally used in a lease are 
 " demise and lease, " but any words clearly 
 indicating an intention of making a present 
 demise will suffice; Fawcett, L. & T. 74; 
 Wms. R. P. 196 ; Bacon, Abr. (K) 161 ; see 
 Martindale, Conv. 273. 
 
 OFIiriON. In Iividence. An infer- 
 ence or conclusion drawn by a witness as dis- 
 tinguished from facts known to him as facts. 
 
 ft is the province of the jury to draw in- 
 ferences and conclusions ; and if witnesses 
 were in general allowed to testify what they 
 judge as well as what they know, the verdict 
 would sometimes prove not the decision of the 
 jury, but that of the witnesses. Hence the 
 rule that, in general, the witness cannot be 
 asked his opinion upon a particular question ; 
 29 N. H. 94 ; 16 111. 513 ; 18 Ga. 194, 573 ; 
 7 Wend. 560 ; 24 id. 668 ; 2 N. Y. 514 ; 9 
 id. 371 ; 17 id. 340. But while it is incom- 
 petent for a witness to state his opinion upon 
 a question of law, where the intent with which 
 an act done by him is drawn in question he 
 may testify as to such intent; 12 Reptr. 664. 
 
 Some confusion in the application of this 
 rule arises from the delicacy of the line which 
 divides that which is to be regarded as matter 
 of observation from that which is matter of 
 judgment founded upon observation. Thus, 
 it is held that an unprofessional witness may 
 testify to the fact that a person whom he saw 
 was intoxicated, whether he is able to state 
 all the constituent facts which amount to 
 drunkenness or not ; 14 N. Y. 562 ; 26 Ala. 
 N. s. 26. But, on the other hand, insanity 
 or mental incapacity cannot, in general, be 
 proved by the mere assertion of an unprofes- 
 sional witness; 17 N. T. 340 ; 7 Barb. 314; 
 13 Tex. 568. And see 25 Ala. N. s. 21. 
 
 So handwriting may be proved by being 
 recognized by a witness who has seen other 
 writings of the party in the usual course of 
 business, or who has seen him write ; Peake, 
 N. P. 21 ; 1 Esp. 15, 351 ; 2 Johns. Cas. 
 211; 19 Johns. 134. But, on the other hand, 
 the authorship of an anonymous article in a 
 newspaper cannot be proved by one profess- 
 ing to have a knowledge of the author's style; 
 How. App. Cas. N. Y. 187, 202. 
 
 From necessity, an exception to the rule 
 of excluding opinions is made in questions 
 involving matters of science, art, or trade, 
 where skill and knowledge possessed by a 
 witness, peculiar to the subject, give a value 
 to his opinion above that of any inference 
 which the jury could draw from facts which 
 he might state ; 4 Hill, N. Y. 129 ; 1 Denio, 
 281 ; 3 111. 297 ; 2 N. H. 480 ; 2 Story, 421. 
 Such a witness is termed an expert ; and he 
 may give his opinion in evidence. 
 
 The following reference to some of the 
 matters in which the opinions of expert wit- 
 nessess have been held admissible will illus- 
 trate this principle. The unwritten or com- 
 mon law of foreign countries may be proved 
 by the opinion of witnesses possessing pro- 
 fessional knowledge; 1 Cra. 12, 38; 2 id. 
 236 ; 6 Pet. 763 ; 2 Wash. C. C. 1, 175 ; 2 
 
 Wend. 411 ; 3 Pick. 293; 4 Conn. 517- 4 
 Bibb, 73 ; 2 Marsh. 609 ; 5 Harr. & J. igg . 
 1 Johns. 385 ; 14 Mass. 455 ; 6 Conn 5O8 '■ 
 
 1 Vt. 336 ; 15 S. & R. 87 ; 1 La. 1S3 ; 3 id 
 53 ; 6 Cra. 274 ; the degree of hazard of 
 property insured against fire ; 17 Barb, in ■ 
 4 Zabr. 843 ; whether a picture is a good 
 likeness or not ; 89 Ala. 193 ; handwriting' 
 35 Me. 78; 2R. I. 319; 25 N, H. 87; i 
 Jones, No. C. 94, 150 ; 13 B. Monr. 255 . 
 mechanical operations, the proper wav of 
 conducting a particular manufacture, and' the 
 effect of a certain method; 4 Barb. 614- 19 
 id. 338 ; 8 N. Y. 322 ; negligence of a n'aTi- 
 gator, and its effect in producing a collision ■ 
 24 Ala. N. s. 21; sanity; 1 Add. 244;' 41 
 Ala. 700 ; 12 N. Y. 358 ; 17 id. 340; impo- 
 tency ; 3 Phill. Eccl. 14 ; value of chatties ; 
 22 Ala. N. s. 370; 11 Cush. 267; 22 Barb 
 652, 656 ; 23 Wend. 354 ; value of land ; 11 
 Cush. 201 ; 4 Gray, 607 ; 9 N. Y. 183 ; com- 
 pare 4 Ohio St. 583; value of services ; 16 
 Barb. 550; 20 id. 387; speed of a railway 
 train ; 59 N. Y. 631 ; benefit to real pro- 
 perty by laying out a street adjacent thereto; 
 
 2 Gray, 107; survey-marks identified as be- 
 ing those made by United States surveyors; 
 
 24 Ala. N. s. 390 ; seaworthiness ; Peake, 
 Cas. 25 ; 10 Bingh. 57 ; and see 9 Cush. 
 226 ; whether a person appeared sick or 
 well; 53 N. Y. 603. So an engineer may 
 be called to say what, in his opinion, is the 
 cause that a harbor has been blocked up ; 3 
 Dougl. 158; 1 Phill. Ev. 276; 4 Term, 498. 
 Opinion evidence as to the age of .a person, 
 from his appearance, is not admissible; 6 
 Conn. 9 ; nor is it in cases involving adulteiy, 
 on the question of guilt or guilty intent ; see 
 
 18 Ala. 738. 
 
 It is to be observed, however, that the 
 principle of admitting such opinions is taken 
 with the qualifications necessary to make, as 
 far as possible, the judgment of the jury, 
 and not that of the witness, the final means 
 of determining the issue. Thus opinions of 
 experts are not admissible upon the question 
 of damages; 4 Denio, 311; 3 Hill, N. T. 
 609 ; 21 Barb. 331 ; 23 Wend. 425 ; 2 N. T. 
 514 ; and experts are always confined to 
 opinions within the scope of their professions, 
 and are not allowed to give opinions on things 
 of which the jury can as well judge ; 6 Rog. 
 Rec. N. Y. 26 ; 4 Wend. 320 ; 14 Me. 398 ; 
 
 3 Dana, 382 ; 1 Penn. R. 161 ; 2 Halst. 244; 
 7 Vt. 161 ; 6 Rand. 704 ; 4 Yeaf«s, 262; 9 
 Conn. 102 ; 3 N. H. 349 ; 5 Harr. & J- 
 438; 1 Denio, 281. A distinction is^ also to 
 be observed between a feeble impression and 
 a mere opinion or belief ; 3 Ohio St. 406 ; 
 
 19 Wend. 477. See Mr. Lawson's article, in 
 
 25 Alb. L. J. 367 etseq. 
 
 In Practice. The statement of reasons 
 delivered by a judge or court for giving the 
 judgment which is pronounced upon a case. 
 The judgment itself is sometimes called an 
 opinion ; and sometimes the opinion is spoken 
 of as the judgment of the court. 
 
 A declaration, usually in writing, made by 
 
OPINION 
 
 335 
 
 OPTION 
 
 a counsel to the client of what the law is, ac- 
 cording to his judgment, on a statement of 
 facts submitted to him. 
 
 An opinion is in botli the above cases a deci- 
 sion of wliat principles of law are to be applied 
 In the particular case, with the difference that 
 judicial opinions pronounced by the court are 
 law and of authority, while the opinions of 
 counsel, however eminent, are merely advice to 
 his client or argument to the court. 
 
 Where there are several judges, and they 
 do not all agree in the disposition of the cause, 
 the opinion of the majority is termed the pre- 
 vailing opinion, or the opinion of the court. 
 The opinion of the minority is termed the 
 dissentmg opinion. The opinions of the 
 courts, collected and provided with such pre- 
 liminary statements of facts and of the argu- 
 ments of counsel as may be necessary in each 
 case to an understanding of the decision, 
 make up the books of reports. 
 
 Opinions are said to be judicial or extra- 
 judicial. A judicial opinion is one which is 
 given on a question which is actually involved 
 m the matter brought before the judge for his 
 decision; an extra-judicial opinion is one 
 which, although given by a judge in deciding 
 a case, is not necessary to the judgment ; 
 Vauah. 382 ; 1 Hale, Hist. 141 ; and, 
 whether given in or out of court, is no more 
 than the prolatum of him who gives it, and 
 has no legal efficacy ; 4 Penn. St. 28. Where 
 a point is essential to the decision rendered, 
 it will be presumed that it was duly considered, 
 and that all that could be urged for or against 
 it was presented to the court. But if it ap- 
 pears from the report of the case that such 
 point was not taken or inquired into at all, 
 there is no ground for this presumption, and 
 the authority of the case is proportionably 
 weakened ;. 8 Abb. Pr. 316. 
 
 Where two or more points are discussed in 
 the opinions delivered on the decision of a 
 cause, and the determination of either point 
 in the manner indicated in such opinions 
 would authorize the judgment prono^nced by 
 the court, the judges concurring in the judg- 
 ment must be presumed to have concurred in 
 such opinions upon all the points so discussed, 
 unless some disseiit is expressed or the cir- 
 cumstances necessarily lead to a different con- 
 clusion ; 6 N. Y. 9. Where a judgment is 
 reversed upon a part only of the grounds on 
 which it went, it is still deemed an authority 
 as to the other grounds not questioned. See 
 5 Johns. 125. 
 
 Counsel should, in giving an opinion, as far 
 aa practicable, give, first, a direct and positive 
 opinion, meeting the point and effect of the 
 question, and, if the question proposed is 
 properly divisible into several, treating it ac- 
 cordingly. Second, his reasons, succinctly 
 stated, in support of such opinion. Third, a 
 reference to the statutes or decisions on the 
 subject. Fourth, when the facts are suscep- 
 . tible of a material difference in statement, a 
 suggestion of the probability of such varia^ 
 tion. When an opinion is sought as a guide 
 
 in respect to maintaining an action or defence, 
 some other matters should be noticed : — as. 
 Fifth, any necessary precautionary sugges- 
 tions in reference to the possibility of a fatal 
 defect in the evidence, arising from the nature 
 of the case. Thus, where some important 
 fact is stated as resting principally on the 
 statement of the party interested, if by the 
 law of the place such party is incompetent to 
 testify respecting it, a suggestion ought to be 
 made to inquire now that fact is to be proved. 
 Sixth, a suggestion of the proper mode of 
 proceeding, or the process or pleadings to be 
 adopted. 
 
 In English and American law, the opin- 
 ions of counsel, however eminent, are not 
 entitled to .my weight with the court, as evi- 
 dence of the law. While tliecourt will deem it 
 their duty to receive such opinions as argu- 
 ments and entitled to whatever weight they 
 may have as such, they will not yield to them 
 any authority ; 4 Penn. 1, 28. In many 
 cases, however, where a client acts in good 
 faith under the advice of counsel, he may on 
 that ground be protected from a liability 
 which the court in its discretion might other- 
 wise have imposed upon him. 
 
 OPPOSITION. In Practice. The act 
 of a creditor who declares his dissent to a 
 debtor's being discharged under the insolvent 
 laws. 14 Bankr. Reg. 449. 
 
 OPPRESSOR. One who having public 
 authority uses it unlawfully to tyrannize over 
 another : as, if he keep him in prison until 
 he shall do something which he is not lawfully 
 bound to do. 
 
 To charge a magistrate with being an op- 
 pressor is, therefore, actionable. 1 Starkie, 
 Sland. 185. 
 
 OPPROBRIUM. In Civil Law. Igno- 
 miny ; shame ; infamy. 
 
 OPTION. Choice ; election. See those 
 titles. 
 
 In Contracts. A contract by which A, in 
 consideration of the payment of a certain sum 
 to B, acquires the privilege of buying from or 
 selling to B, specified securities at a fixed price 
 within a certain time ; 71 N. Y. 420 ; 83 id. 
 93. 
 
 These options are of three kinds, viz. : " calls," 
 "puts," and "straddles," or " spread eagles." 
 A call gives A the option of calling or buying from 
 B or not, certain securities. A put gives A the 
 option of selling or delivering to B or not. A 
 straddle is a combination of a put and a call, 
 and secures to A the right to buy of or sell to 
 B or not. Where neither party, at the time of 
 making the contract, intends to deliver or accept 
 the shares, but merely to pay differences accord- 
 ing to the rise or fall of the market, the contract 
 is void either by virtue of statute or as contrary to 
 public policy ; 11 C. B. 538. In each transaction the 
 law looks primarily at the intention of the par- 
 ties ; and the form of the transaction is not con- 
 clusive ; 11 Hun, 471 ; 71 N. T. 420 ; 5 M. & W. 
 466 ; 89 Penn. 250 ; 10 W. N. C. 112. Option 
 contracts are not prima facie gambling contracts; 
 H Hun. 471 ; 71 N. Y. 420. But see, 78 111. 43 ; 
 83 id. 83. See in general Dos Fassos, Stock- 
 Brokere. 
 
OPTIONAL WRIT 
 
 336 
 
 ORDER 
 
 OPTIONAL WRIT. An original vrrit 
 in the alternative, commanding either to do a 
 thing or show cause why it has not been done. 
 3 Bla. Com. 274 ; Finch, Law, 257. 
 
 OPUSLOCATUM(Lat.). InCivULaw. 
 A work (i. e. the result of work) let to another 
 to be used. A work (t. e. something to be 
 completed by work) hired to be done by 
 another. Vicat, Voe. Jur. Opus, Locate ; L. 
 51, § 1, D. Locat. ; L. 1, § 1, D. ad leg. 
 Rhod. 
 
 OPUS MAGNIPICIUM or MANIFI- 
 CIUM (from Lat. opus, work, manus, hand). 
 In Old English Law. Manual labor. Fleta, 
 1. 2, c. 48, § 3. 
 
 OR. A disjunctive particle. 
 
 As a particle, or is often construed and, 
 and and construed or, to further the intent 
 of the parties, in legacies, devises, deeds, 
 bonds, and writings ; 3 Gill. 492 ; 7 id. 197 ; 
 1 Call, 212 ; 2 Rop. Leg/ text and notes of 
 American editor 1400, 1405 ; 3 Greenl. Ev. 
 tit. 38, c. 9, §§ 18, 25; 1 Jarra. Wills, c. 17, 
 p. 427, 2d ed., and cases cited in Perk. note. ; 
 
 1 Wills. Ex. 932, notes k, 1; 5 Co. 112 a; 
 Cro. Jac. 322 ; 4 Zabr. 686 ; 3 Term, 470. 
 
 Where an indictment is in the alternative, 
 as forged or caused to be forged, it is bad for 
 uncertainty; 2 Stra. 900; Hardw. 370; 1 
 Y. & J. 22. But a description of a horse as of 
 a brown or bay color, in an indictment for 
 larceny of such horse, is good; 13 Vt. 687 ; 
 and so an indictment describing a nuisance as 
 in the highway or road ; 1 Dall. 150. See 
 28 Vt. 583; 24 Conn. 286; 13 Ark. 397. 
 So, "break or enter," in a statute defining 
 burglary means "breakand enter ;" 82 Penn. 
 306, 326; 105 Mass. 185. 
 
 When the word or in a statute is used in 
 the sense of to wit, that is in explanation of 
 what precedes, and making it signify the 
 same thing, a complaint or indictment which 
 adopts the words of the statute is well framed. 
 Thus, it was held that an indictment was suf- 
 ficient which alleged that the defendant had 
 in his custody and possession ten counterfeit 
 bank-bills or promissory notes, payable to the 
 bearer thereof, and purporting to be signed 
 in behalf of the president and directors of the 
 Union Bank, knowing them to be counterfeit, 
 and with intent to utter and pass them, and 
 thereby to injure and defraud the said presi- 
 dent and directors ; it being manifest from 
 the statute on which the indictment was 
 framed, that promissory note was used merely 
 as explanatory of bank-bill, and meant the 
 same thing ; 8 Mass. 59 ; 2 Gray, 502. 
 
 In general, see Cro. Eliz. 832 ; 27 Hen. 
 VIII. 18 6; Hardw. 91, 94; 1 Ventr. 148; 
 
 2 Sandf. 369 ; 1 Jones, No. C. 309 ; 3 Atk. 
 291 ; 3 Term, 470 ; 1 Bingh. 500 ; 2 Dr. & 
 Warr. 471; Whart. Cr. PL & Pr. 171, 251. 
 
 ORACULUM (Lat.). In Civil Law. 
 
 The name of a kind of decision given by the 
 Roman emperors. 
 
 ORAL. Spoken, in contradistinction, to 
 written : as, oral evidence, which is evidence 
 
 delivered verbally by a witness. Formally 
 pleadings were put in viva voce, or orally' 
 Kerr's Act. Law. 
 
 ORATOR. In Chancery Practtee 
 The party who files a bill. Oratrix is used 
 of a female plaintiff". These words are dis- 
 used in England, the customary phrases now 
 being plaintiff' and petitioner ; Brown. 
 
 In Roman Law. An advocate ; Code 1 
 3. 33. 1. ' ' 
 
 ORDAIN. To ordain is to make an ordi- 
 nance, to enact a law. 
 
 The preamble to the constitution of the United 
 States declares that the people " do ordain and 
 establish this constitution for the United States 
 of America." The third article of the same con- 
 stitution declares that " the judicial power shall 
 be vested in one supreme court, and in snch in- 
 ferior courts as the congress may from time to 
 time ordain and establish." See 1 Wheat. 304 
 3ai ; 4 id. 316, 403. ' 
 
 Ordination, in the Prot. Epls. church, is tbe 
 conferring on a person the holy orders of priest 
 or deacon. The custom is similar in the Method- 
 ist church ; 4 Conn. 134. 
 
 ORDBAL. An ancient superstitions mode 
 of trial. 
 
 When in a criminal case the accused was ar- 
 raigned, he might select the mode of trial either 
 by God and his country, that is, by jury, or by 
 God only, that is, by ordeal. 
 
 The trial by ordeal was either by fire or by 
 water. Those who were tried by the former 
 passed barefooted and blindfolded oyer nine hot 
 glowing ploughshares, or were to carry bummg 
 irons in their hands, and accordingly as they es- 
 caped or not they were acquitted or condemned. 
 The water ordeal was performed either in hot or 
 cold water. In cold water, the parties suspected 
 were adjudged innocent if their bodies were not 
 borne up by the water contrary to the course of 
 nature ; and if after putting their bare arms or 
 legs into scalding water they came out unhurt, 
 they were taken to be innocent of the crime. 
 
 It was supposed that God would, by the mere 
 contrivance of man, exercise his power in favor 
 of the innocent. 4 Bla. Com. 342 ; 2 Am. Jur. 
 380. For a detailed account of the trial by ordeal, 
 see Herbert, Antiq. of the Inns of Court, W. 
 
 ORDER. Command; direction. 
 
 An informal bill of exchange or letter of 
 request requiring the party to whom it is ad- 
 dressed to deliver property of the person 
 making the order to some one therein de- 
 scribed. 
 
 A designation of the person to whom a bill 
 of exchange or negotiable promissory note is 
 to be paid. See 14 Conn. 445 ; 48 N. H. 
 45; 39 N. Y. 98. 
 
 This order, in the case of negotiable paper, 
 is usually by indorsement, and may be either 
 express, as, "Pay to C D," or implied 
 merely, as by writing A B [the payee's name]. 
 See Indoksembnt. 
 
 In French Law. The act by which the 
 rank of preferences of claim, among credit- 
 ors who have liens over the price whicU 
 arises out of the sale of an immovabte sub- 
 ject, is ascertained. Dalloz, Diet. 
 
 In the Practice of Courts. An order is 
 any direction of a court or judge made cen- 
 tered in writing, and not included in a JiuJg- 
 
ORDER OF DISCHARGE 
 
 337 
 
 ORDINARY SKILL 
 
 ment; N. Y. Code of Proc. § 400. For 
 distinction between order and requisition, see 
 19 John. 7. 
 
 In Governmental Law. By this e.\pres- 
 sion is understood the several bodies which 
 eompose the state. In ancient Rome, for 
 example, there were three distinct orders : 
 namely, that of the senators, that of the pai 
 tricians, and that of the plebeians. 
 
 In the United States there are no orders of 
 men ; all men are equal in the eye of the law. 
 See Rank. 
 
 ORDER OFDISCHARGE. InEndand, 
 an order made under the Bankruptcy Act of 
 1869, by a court of bankruptcy, the effect of 
 which is to discharge a bankrupt from all 
 debts, claims, or demands provable under the 
 bankruptcy ; Robson, Bkcy. ; Whart. Lex. 
 
 ORDER OF FILIATION. The name 
 of a judgment rendered by two justices, hav- 
 ing jurisdiction in such ease, in which a man 
 therein nailed is adjudged to be the putative 
 father of a bastard child, and it is further ad- 
 judged that he pay a certain sum for its sup- 
 port. 
 
 The order must bear upon its face — -first, 
 that it was made upon the complaint of the 
 township, parish, or other place where the 
 child was born and is chargeable; second, 
 that it was made by justices of the peace hav- 
 ing jurisdiction; 1 Salfc. 122, pi. 6; 2 Ld. 
 Raym. 1197; third, the birthplace of the 
 child ; fourth, the examination of the puta^ 
 tive father and of the mother, but it is said 
 the presence of the putative father is not 
 requisite if he has been summoned ; Cald. 
 ■308 ; fifth, the judgment that the defendant 
 is the putative father of the child : Sid. 363 ; 
 Style, 154 ; Dalt. 52 ; Dougl. 662 ; sixth, 
 that he shall maintain the child as long as he 
 shall be chargeable to the township, parish, or 
 other place, which must be named ; 1 Salk. 
 121, pi. 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 pub- 
 lic ; Style, 134 ; Ventr. 210 ; seventh, it must 
 be dated, signed, and sealed by the justices. 
 Such order cannot be vacated by two other 
 justices; 15 Johns. 208. See 4 Cow. 253 ; 
 8 id. 623 ; 12 Johns. 195 ; 2 Blackf. 42. 
 
 ORDER OF REVIVOR. In English 
 
 Practice. An order as of course for the 
 continuance of an abated suit. It super- 
 seded the bill of revivor. See 15 & 16 Vict, 
 c. 86, s. 52. Whart. Lex. 
 
 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 
 otlier competent jurisdiction. The formula 
 M, generally in these words : It is ordered, 
 etc. 
 
 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. 
 Vol. II.— 22 
 
 ORDERS OF THE DAT. Matters 
 which the House of Commons may have 
 agreed beforehand to consider on any par- 
 ticular day, are called the " orders of the 
 day," as opposed to original motions; May's 
 Pari. Prac. Orders of the day are also 
 known to the parliamentary practice of this 
 country; Cush. 1512, 1513. 
 
 ORDINANCE. A law ; a statute ; a de- 
 cree. 
 
 This word is more usually applied to the laws 
 of a corporation than to the acts of the legis- 
 lature : as, the ordinances of the city of Phila- 
 delphia, The following account of the difference 
 between a statute and an ordinance is extracted 
 from Bacon's Abridgment, 5ia*Kte (A). "Where 
 the proceeding consisted only of a petition from 
 parliament and an answer from the king, these 
 were entered on the parliament roll ; and if the 
 matter was of a public nature, the ^hole was 
 then styled an ordinance : if, however, the peti- 
 tion and answer were not only of a public but a 
 novel nature, they were then formed into an act 
 by the king, with the aid of his council and 
 judges, and entered on the statute roU." See Co. 
 LItt. 159 6, Butler's note ; 3 Reeve, Hist. Eng. 
 Law, 146. 
 
 According to Lord Coke, the difference be- 
 tween a statute and an ordinance is that the lat- 
 ter has not had the assent of the king, lords, 
 and commons, but is made merely by two of 
 these powers. Co. 4th Inst. 35. See Barrington, 
 Stat. 41, note (x). 
 
 ORDINARY. In Ecclesiastical Law. 
 
 An ofiicer who has original jurisdiction in his 
 own right, and not by deputation. 
 
 In England, the ordinary is an officer who 
 has immediate jurisdiction in ecclesiastical 
 causes. Co. Litt. 344. Also a bishop, and 
 an archbishop is the ordinary of the whole 
 province ; also an archdeacon ; and an officer 
 of the royal household. 
 
 In the United States, the ordinary possesses, 
 in those states where such officer exists, pow- 
 ers identical with those usually vested in the 
 courts of probate. In South Carolina, tlie 
 ordinary was a judicial officer ; 1 Const. So. 
 C. 267 ; 2 id. 384 ; but no longer exists in 
 South Carolina, where they have now a pro- 
 bate court. Georgia retains courts of ordi- 
 nary. 
 
 ORDINART CARE. That degree of 
 care which men of ordinary prudence exercise 
 in taking care of their own property. It can 
 only be determined by the circumstances of 
 each particular case whether ordinary care 
 was used. This degree of care is that required 
 of bailees for the mutual benefit of bailor and 
 bailee; 8 Mete. 91; 2 Wise. 316; 16 -Ar-k. 
 308; 23 Conn. 443; 40 Me. 64; 19 Ga. 
 427; 28 Vt. 150, 458; 9 N. Y. 416; 26 
 Ala. N. s. 203 ; 1 Dutch. 556 ; 36 E. L. & B. 
 506; 4 Ind. 368. See Bailee; 24 N. J. 
 L. 268 ; 35 Penn. 60 ; 74 111. 232 ; 21 How. 
 356. 
 
 ORDINARY SKILL. Such skill as a 
 person conversant with the matter undertaken 
 might be reasonably supposed to have. 11 
 M. & W. 113 ; 20 Mart. La. 68, 75 ; 1 H. 
 Blackst. 158, 161; 6 Ga. 213, 219; 8 B. 
 
ORDINATION 
 
 OREGON 
 
 Monr. 516 ; 13 Johns. 211 ; 4 Burr. 2060 ; 7 
 C. & P. 289; 6 Bingh. 460; 16 S. & B. 
 368 ; 15 Mass. 316 ; 2 Cush. 316 ; 8 C. & P. 
 479; 4 Barnew. & C. 345. See Negli- 
 
 GKNCE. 
 
 One who undertakes to act in a professional 
 or other clearly defined capacity is bound to 
 exercise the skill appropriate to such capa- 
 city, though the undert^ing be gratuitous ; 
 20 Penn. 136 ; 31 N. H. 119. 
 
 ORDINATION. The act of conferring 
 the orders of the church upon an individual. 
 
 In the Presbyterian and Congregational 
 churches, ordination means the act of establish- 
 ing a licensed preacher over a congregation 
 with pastoral charge and authority, or the act of 
 conferring on a man the powers of a settled min- 
 ister of the gospel, without the charge of a par- 
 ticular church, but with general powers where- 
 ever he may be called on to officiate ; Whart. 
 Lex. See Obdaiit. 
 
 ORDINIS BENEFICIUM. See Bene- 
 
 FICIUM ObDINIS. 
 
 ORDONNANCI! DE LA AIARINE. 
 
 See Code. 
 
 ORE TBNtrS (Lat.). 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 III. 3 
 Reeve, Hist. Eng. Law, 95 ; Steph. PL 29. 
 And seeBracton, 372 6. 
 
 In chancery practice, a defendant may de- 
 mur at the bar ore tenus; 3 P. Wms. 370; 
 if he has not sustained the demurrer on the 
 record; 1 Swanst. 288; Mitf. PI. 176; 6 
 Ves. 779; Sid. 405; 17 irf. 215, 216. 
 
 OREGON. One of the Pacific coast 
 states of the American Union, and the thirty- 
 third state admitted therein. 
 
 The territory called Oregon from the early 
 name of its principal river — now called the Co- 
 lumbia — originally included all the country on 
 the Pacific coast west of the Rocliy mountains, 
 and north of the 42d and south of the 49th par- 
 allel of north latitude. From 1818 to 1846, this 
 country was subject to the joint occupancy of 
 the subjects and citizens of Great Britain and 
 the United States, under a disputed claim of 
 title, which was settled by the treaty of June 15, 
 of the latter year, in favor of the United States 
 (8 Stat. S49, 360 ; 9 Stat. 109, 869). 
 
 As early as 1841 the American and British oc- 
 cupants west of the Cascade mountains, com- 
 menced to organize a government for their 
 protection. These efforts resulted In the estab- 
 lishment of the "Provisional government of 
 Oregon " by a popular vote on July 5, 1845, con- 
 sisting of an executive, legislative (one house) , 
 and judicial department, the officers of which 
 were chosen and supported by the voluntary ac- 
 tion of the citizens and subjects of both nations. 
 On March 3, 1849, this government was super- 
 seded by the territorial government provided by 
 congress in the act of August 14, 1848 (9 Stat. 
 823) . On September 27, 1850, congress passed the 
 "donation act" (9 Stat. 497), giving the set- 
 tlers the land held by them under the provisional 
 government — 640 acres to a married man and 
 his wife, and 320 to a single man. 
 
 In 1857 a state constitution was formed and 
 ratified by the people, under which that portion 
 of the territory included in the following bound- 
 
 aries was admitted into the Union on Febnn™ 
 14,1859 (11 Stat. 883), on an equal footineS 
 the other states : — 
 
 Beginning one marine league at sea due west 
 from the point wh^re the forty-second parallel 
 of north latitude intersects the same: thence 
 northerly, at the same distance from the line of 
 the coast lying west and opposite the state in- 
 eluding all islands within the jurisdiction of' the 
 United States, to a point due west and opposite 
 the middle of the north ship-channel of the Co- 
 lumbia river ; thence easterly to and up the mid- 
 die channel of said river, and, where it is divided 
 by islands, up the middle of the widest channel 
 thereof, to a point near fort Walla-Walla, where 
 the forty-sixth parallel of north latitude croeses 
 said river; thence east on said parallel to the 
 middle of the main channel of the Shoshones or 
 Snake river ; thence up the middle of the main 
 channel of said river to the mouth of the Owy. 
 hee river ; thence due south to the parallel of 
 latitude forty-two degrees north ; thence wett 
 along said parallel to the place of beginning' 
 including jurisdiction in civil and criminal cases 
 upon the Columbia river and Snake river, eon- 
 currently with states and territories of which 
 those rivers form a boundary in common with 
 this state. 
 
 By the same act the navigable waters of the 
 state were declared common highways, and for- 
 ever free to the citizens of the United States. 
 
 The Legislative Power. — The legislative 
 authority is vested in a legialative asHembly, con- 
 sisting of a Senate and House of Representa- 
 tives. 
 
 The Senate is to consist of sixteen memberB, 
 which number may be increased to thirty, 
 elected for the term of four years by the electors 
 of the districts into which the state is divided 
 for the purpose. The senate is divided into two 
 classes : so that one-half the number may be 
 changed every two years. 
 
 The Souse of Sepresentatiues is to consist of 
 thirty-four members, which number may be in- 
 creased to sixty, chosen by the electors from the 
 respective districts into which the state is divided 
 for the purpose, for the term of two years. 
 
 Both houses now consist of the maximum 
 number. 
 
 Senators and representatives must be twenty- 
 one years old, citizens of the United States, and 
 for a year at least preceding the election inhabi- 
 tants of the county or district from which they 
 were chosen. Sessions of the assembly are 
 holden every second year. 
 
 Two-thirds of each house constitutes a quo- 
 rum ; and no bill can be passed without the 
 votes of a majority of all the members elected 
 to each house. No act can take efiect until 
 ninety days after the adjournment of the legis- 
 lature, except in case of an emergency which 
 must be declared therein. The power to pass 
 special and local laws is denied in certain cases; 
 and the reading of a bill by sections on its final 
 passage cannot be dispensed with. 
 
 The Exeoctivb Powbb.— The Oovemor ii 
 elected for the term of four years, by the quali- 
 fied electors, at the titae and places of choosing 
 members of the assembly. He is commander 
 in-chief of the military and naval forces of tw 
 state; must take care that the laws are taiin- 
 fully executed; may convene the legisianve 
 assembly on extraordinary occasions ; maygrau' 
 reprieves, commutations, and pardons, after con- 
 victions, for all offences but treason, subject ro 
 regulations prescribed by the assembly- He ra» 
 the veto power, and must sign all commissions. 
 
OREGON 
 
 ORIGIN AL, ENTRY 
 
 He must be thirty years old, a citizen of the 
 United States, and must have been for three 
 years preceding his election a resident in 
 the state. In case of removal, death, resigna- 
 tion, or inability of the governor, the duties of 
 his ofBce devolve upon the secretary of state, 
 and in case of his removal, death, re6igi}j.tion, 
 or disability, upon the president of the senate, 
 till a governor is elected. 
 
 A Secretary of State is elected, by the qualified 
 electors, for the term of four years, who is also 
 auditor of public accounts. 
 
 A Treasurer of State is elected, by the quali- 
 fied electors, for the term of four years. 
 
 In each county, a county clerk, treasurer, 
 sherifi', coroner, and surveyor are elected, for th» 
 term of two years. 
 
 The Jddioial Power. — The judicial power 
 of the state is vested in a supreme court, circuit 
 and county courts, and justices of the peace ; 
 and municipal courts may be created to admin- 
 ister the regulations of incorporated towns. 
 
 The Supreme Court originally consisted of 
 four justices, which number was increased to 
 five, chosen in districts, within which they held 
 the circuit courts. But in 1878 the legislative 
 assembly, in pursuance of § 10 of art. vii., of 
 the constitution, provided for the election of 
 justices of the supreme and circuit courts in 
 separate classes ; and now the supreme court is 
 held by three justices elected by the electors of 
 the whole state. A judge of the supreme court 
 is elected for six years, and in addition to the 
 usual oath of office is required to swear that'he 
 will not accept any other office, except a judi- 
 cial one, during the term for which he is elected. 
 He must be a citizen of the United States, and 
 must have resided three years in the state. The 
 court has jurisdiction only to revise the decisions 
 of the circuit court. It holds two terms a 
 year, at the seat of government, and the judges 
 are required to file with the secretary of state 
 concise written statements of their decisions. 
 
 The Circuit Courts have all jurisdiction not 
 vested in any other court including appellate 
 jurisdiction and supervisory control of all in- 
 ferior tribunals and officers. There are five cir- 
 cuit judges who are elected by the electors of 
 the districts in which they hold court, for the 
 term of six years. Their qualifications are the 
 same as the judges of the supreme court, includ- 
 ing the oath not to accept a political office. 
 
 ponmty Courts are held in each county, by a 
 judge elected for the term of four years. They 
 have the jurisdiction pertaining to courts of pro- 
 bate and county commissioners, and may have, by 
 act of assembly, civil jurisdiction to the extent of 
 five hundred dollars, and " criminal jurisdiction 
 not extending to death or imprisonment in the 
 peijitentiary." The civil jurisdiction has been 
 conferred but no criminal jurisdiction. 
 
 A county clerk and sheriff are elected in each 
 county, for the term of two years, and in each 
 district composed of one or more counties a 
 prosecuting attorney, who is a law officer of the 
 state, and of the counties within his district. 
 
 A judge of the supreme court, or prosecuting 
 officer, may be removed from office by the gov- 
 ernor, upon the joint resolution of the legislative 
 assembly in which two-thirds of the members 
 present concur, for incompetency, corruption, 
 malfeasance, or delinquency in office, or other 
 sufficient cause stated in such resolution. 
 
 Jurors are selected from the names of the per- 
 sons on the assessment rolls, and out of the 
 number in attendance upon the circuit court, 
 seven are chosen by lot, who constitute the 
 grand jury for the term, five of whom must con- 
 
 cur to find an indictment. But the legislature 
 may abolish the grand jury. 
 
 ORFGrILD (Sax. orf, cattle, gild, pay- 
 ment. Also called eheapgild). A payment 
 for cattle, or the restoring them. Cowel. 
 
 A restitution made by the hundred or 
 county of any wrong done by one that was 
 in pledge. Lambard, Archaion. 125, 126. 
 
 A penalty for taking away cattle. Blount. 
 
 ORIGINAL. An authentic instrument 
 of something, and which is to serve as a 
 model or example to be copied or imitated. 
 It also means first, or not deriving any au- 
 thority from any other source : as, original 
 jurisdiction, original writ, original bill, and 
 the like. 
 
 Originals are single or duplicate : single 
 when there is but one; duplicate, when there 
 are two. In the case of printed documents, 
 all the impressions are originals, or in the 
 nature of duplicate originals, and any copy 
 will be primary evidence ; 2 Stark. 130. But 
 see 14 S. & R. 200 ; 2 Bouvler, Inst. n. 2001. 
 
 When an original document is not evidence 
 at common law, and a copy of such original 
 is made evidence by an act of the legislature, 
 the original is not therefore made admissible 
 evidence by implication; 2 Campb. 121, n. 
 
 ORIGINAL BILL. In Chancery Prac- 
 tice. A bill relating to a matter not before 
 brought before the court by the same parties, 
 standing in the same interests. Mitf. Eq. PI. 
 33 ; Willis, PI. 13 et seq. 
 
 Proceedings in a court of chancery are either 
 commenced by way of information, when the 
 matter concerns the state or those under its pro- 
 tection, or by original petition or bill, when the 
 matter does not concern the state or those under 
 its protection. The original bill states simply 
 the cause of complaint, and asks for relief. It 
 is composed of nine parts ; Story, Eq. PI. 7, 8, 
 and is the foundation of all subsequent proceed- 
 ings before the court ; see 1 Daniell, Ch. Pr. 351. 
 See Bill. 
 
 ORIGINAL CHARTER. In Scotch 
 Lavr. That one by which the first grant of 
 land is made. Bell, Diet. 
 
 ORIGINAL CONVEYANCES (called, 
 also, primary conveyances) are those convey- 
 ances by means whereof the benefit or estate 
 is created or first arises : viz. , feoffment, gift, 
 grant, lease, exchange, partition. 2 Bla. Com. 
 309, 310* ; 1 Steph. Com. 466. 
 
 ORIGINAL ENTRY. The first entry 
 made by a merchant, tradesman, or other 
 person in his account-books, charging another 
 with merchandise, materials, work or labor, 
 or cash, on a contract made between them. 
 
 Such an entry, to be admissible as evidence, 
 must be made in a proper book. In general, 
 the books in which the first entries are made, 
 belonging to a merchant, tradesman, or 
 mechanic, in which are charged goods sold 
 and delivered or work and labor done, are re- 
 ceived in evidence. There are many books 
 which are not evidence, a few of which will 
 be here enumerated. A book made up by 
 transcribing entries made on a slate by a 
 
ORIGINAL ENTRY 
 
 340 
 
 ORNAMENT 
 
 journeyman, the transcript being made on the 
 same evening, or sometimes not until nearly 
 two weeks after the work was done, was con- 
 sidered as not being a book of original en- 
 tries ; 1 Kawle, 435 ; 4 id. 408 ; 2 Watts, 
 451; 4 id. 258; 6 iA 432; 6 Whart. 189; 2 
 Miles, 268. A book purporting to be a book 
 of original entries, containing an entry of the 
 sale of goods when they were ordered, but 
 before they were delivered, is not a book of 
 original entries ; 4 Rawle, 404. And uncon- 
 nected scraps of paper, containing, as alleged, 
 original entries of sales by an agent, on ac- 
 count of his principal, and appearing on their 
 face to be irregularly kept, are not to be con- 
 sidered as a book of original entries ; 13 S. 
 & R. 126. See 2 Whart. 33 ; 4 M'Cord, 
 76 ; 20 Wend. 72 ; 1 Yeates, 198 ; 4 id. 341. 
 
 The entry must be made in the course of 
 business, and with the intention of making a 
 charge for goods sold or work done; they 
 ought not to be made after the lapse of one 
 day ; 1 N. & McO. 130 ; 4 id. 77 ; 4 S. & 
 R. 5 ; 9 id. 285 ; 8 Watts, 545. A book in 
 which the charges are made when the goods 
 are ordered is not admissible ; 4 Rawle, 404 ; 
 3Dev. 449. 
 
 The entry must be made in an intelligible 
 manner, and not in figures or hieroglyphics 
 which are understood by the seller only ; 4 
 Rawle, 404. A charge made in the gross as 
 "190 days work," 1 N. & McC. 130, or 
 "for medicine and attendance," or "thir- 
 teen dollars for medicine and attendance on 
 one of the general's daughters in curing the 
 hooping-cough," 2 Cons. So. C. 476, were 
 rejected. An entry of goods without carry- 
 ing out any prices proves, at most, only a sale ; 
 and the jury cannot, without other evidence, 
 fix any price ; 1 South. 370. The charges 
 should be specific, and denote the particular 
 work or service charged as it arises daily, and 
 the quantity, number, weight, or other dis- 
 tinct designation of the materials or articles 
 sold or furnished, and attach the price and 
 value to each item ; 2 Const. So. C. 745 ; 1 
 N. &M'C. 130. 
 
 The entry must, of course, have been made 
 by a person having authority to make it ; 4 
 Rawle, 404 ; and with a view to charge the 
 party ; 8 Watts, 545. 
 
 The proof of the entry must be made by the 
 person who made it. If made by the seller, 
 he is competent to prove it from the necessity 
 of the case, although he has an interest in the 
 matter in dispute ; 5 Conn. 496 ; 12 Johns 
 N. Y. 461 ; 1 Dall. 239. When made by a 
 clerk, it must be proved by him. But in either 
 case, when the person who made the entry is 
 out of the reach of the process of the court, 
 as in the case of death, or absence out of the 
 state, the handwriting >may be proved by a 
 person acquainted with the handwriting of the 
 person who made the entry; 2 W. & S. 137. 
 But the plaintiff was not competent to prove 
 the handwriting of a deceased clerk who made 
 the entries ; 1 Browne, App, liii. 
 
 The books and original entries, when proved 
 
 by the supplementary oath of the party is 
 primd facie evidence of the sale and deliv 
 ery of goods, or of work and labor done" 
 1 Yeates, 347; Swift, Ev. 84 ; SVt. 463! 
 1 M'Cord, 481 ; 2 Root, 59 ; 1 Cooke, ss' 
 But they are not evidence of money lent or 
 cash paid ; 1 Day, 104 ; 1 Aik. 73, 74; Kirb 
 289 ; nor of the time a vessel lay at the 
 plaintiff's wharf; 1 Browne, 267 ; nor of the 
 delivery of goods to be sold on commission ■ 2 
 Whart. 33. ' 
 
 These entries are evidence in suits between 
 third parties ; 8 Wheat. 326 ; 3 Campb. 306 
 377; 2 P. & D. 573; 15 Mass. 380;, 20 
 Johns. 168; 7 Wend. 160; 15 Conn. 206- 7 
 S. &R. 116; 16 td. 89; ZHarr. &J. 77'.2 
 Rand. 87 ; 1 Y. & C. 53 ; and also in favor 
 of the party himself; 2 Mart. La. n. 8. 508- 
 4 id. 383 ; 2 Mass. 217 ; 1 Dall. 239 ; 288?' 
 173, 362; 6 Vt. 313; 1 Phill. Ev. 266, 
 Cowen & H. note. 
 
 ORIG-IKAL AND DERIVATIVE ES- 
 TATXiS. An original estate is the first of 
 several estates, bearing to each other the rela- 
 tion of a particular estate and a reversion. It 
 is contrasted with a derivative estate, which 
 is a particular interest carved out of another 
 estate of larger extent ; 1 Pres. Est. *128. 
 
 PRIGINAI. JURISDICTION. See 
 
 Jurisdiction. 
 
 ORIGINAIi VTRIT. In English Prac- 
 tice. A mandatory letter issued in the king's 
 name, sealed with his great seal, and directed 
 to the sheriff of the county wherein the in- 
 jury was committed or supposed to have been 
 done, requiring him to command the wrong- 
 doei-, or party accused, either to do justic&'to 
 the complainant, or else to appear in court 
 and answer the accusation against him. This 
 writ is deemed necessary to give the courts of 
 law jurisdiction. 
 
 This writ is now disused, the writ of summons 
 being the process prescribed by the Uniformity 
 of Process Act for commencing personal actions; 
 and under the Judicature Act, 1873, all suits, 
 even In the court of chancery, are to be com- 
 menced by such writs of summons; Brown. 
 But before this, in modem English practice, the 
 original writ was often dispensed with, by re- 
 course to a fiction, and a proceeding by Ml sul- 
 stituted. In this country, our courts derive their 
 jurisdiction from the constitution, and require 
 no original writ to confer it. Improperly speak- 
 ing, the iirst writ which is issued in a case is 
 sometimes called an original writ ; but it is not 
 so in the English sense of the word. See 3 Bla. 
 Com. 373 ; Walker, Am. Law, 514. 
 
 ORIGINALIA (Lat.). In English Law. 
 The transcripts and other documents sent to 
 the oflSce ot the treasurer-remembrancer in 
 exchequer are called by this name to distin- 
 guish them from recorda, which contain the 
 judgments of the barons. The treasurer- 
 remembrancer's office was abolished in 1838. 
 
 ORNAMENT. An embellishment. In 
 questions arising as to which of two things is 
 to be considered as principal or accessory, it 
 is the rule that an ornament shall be considered 
 as accessory. 
 
ORPHAN 
 
 341 
 
 OUTHOUSES 
 
 ORPHAN. A minor or infant who has 
 lost both of his or her parents. Sometimes 
 the term is applied to such a person who has 
 lost only one of his or her parents. 8 Mer. 
 48 ; 2 S. & S. 93 ; Aso & M. Inst. b. 1, t. 2. 
 c. 1 ; 40 "Wise. 276. See 14 Hazzard, Penn. 
 Reg. 188, 189, for a correspondence between 
 the Hon. Joseph Hopkinson and ex-president 
 J. Q. Adams as to the meaning of the word 
 orphan. See, also, Hob. 247. 
 
 ORPHANAGE. In English Law. The 
 share reserved to an orphan by the custom of 
 London. 
 
 By the custom of London, when a freeman of 
 that city dies, Ws estate is divided into three 
 parts, as follows: one-third part to the widow; an- 
 other to the children advanced by him in his 
 lifetime, which is called the orphanage ; and the 
 other third part may be by him disposed of by 
 will. Now, however, a freeman may dispose of 
 his estate as he pleases ; but in cases of intestacy 
 the Statute of Distribution expressly excepts and 
 reserves the custom of London. Lovelace, Wills, 
 103, 104; Bacon, Abr. Custom of London (C). 
 
 ORPHANS' COURT. In American 
 Law. Courts of more or less extended pro- 
 bate jurisdiction, in Delaware, Maryland, 
 New Jersey, and Pennsylvania. See the ac- 
 counts of the respective states. 
 
 ORPHANOTROPHI. In Civil Law. 
 Persons who have the charge of administering 
 the affairs of houses destined for the use of 
 orphans. Clef des Lois Rom. Administra- 
 teurs. 
 
 OSTENSIBLE PARTNER. One whose 
 name appears in a firm as a partner, and who 
 is really such. 
 
 OSTWALD'S LAW. The law by which 
 was effected the ejection of married priests, 
 and the introduction of monks into churches, 
 by Oswald, bishop of Worcester, about a. d. 
 964 ; Whart. Lex. 
 
 OTHER WRONGS. See Alia Enor- 
 mia. 
 
 OTHESWORTHE (Sax. eoth, oath). 
 Worthy to make oath. Braeton, 185, 192. 
 
 OUNCE. The name of a weight. See 
 Weights. 
 
 OUSTER (L. Fr. outre, oultre ; Lat. ultra, 
 beyond). Out; beyond; besides; farther; 
 also ; over and more. Le ouster, the upper- 
 most. Over : respondeat ouster, let him an- 
 swer over. Britton, c. 29. Ouster le mer, 
 over the sea. Jacob. Law Diet. Ouster eit, 
 he went away. 6 Co. 41 J ; 9 id. 120. 
 
 To put out ; to oust. II oust, he put out 
 or ousted. Oustes, ousted. 6 Co. 41 b. 
 
 In Torts. The actual turning out or keep- 
 ing excluded the party entitled to possession 
 of any real property corporeal. 
 
 An ouster can properly be only from real 
 property corporeal, and cannot be committed 
 of any thing movable; 1 C. & P. 123; 2 
 Bouvier, Inst. n. 2348 ; 1 Chitty, Pr. 148, n. 
 r ; nor is a mere temporary trespass considered 
 as an ouster. Any continuing act of exclu- 
 sion from the enjoyment constitutes an ouster, 
 
 even by one tenant in common of his co- 
 tenant; Co. Litt. 199 6, 200 a. See 3 Bla. 
 Com. 167; Archb. Civ. PL 6, 14; 1 Chitty, 
 Pr. 374, where the remedies for an ouster are 
 pointed out. In an action of quo-warranto, 
 the judgment rendered, if against an officer 
 or individuals, is called judgment of ouster ; 
 if against a corporation by its corporate name, 
 it is ouster and seizure. See Judgment of 
 Respondeat Ouster ; Rose. Real Actions, 
 502, 552, 574, 582 ; 2 Crabb, R. P. § 2454 
 a ; 1 Woodd. Lect. 501 ; Washb. R. P. 
 
 OUSTER LE MAIN (L. Fr. to take out 
 of the hand). In Old English lia.v7. A 
 
 delivery of lg,nd3 out of the hands of the lord 
 after the tenant came of age. If the lord re- 
 fused 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. Abolished by 
 12 Car. II. c. 24. Also, a livery of land out 
 of the king's hands by judgment given in 
 favor of the petitioner in a monstrans de droit ; 
 3 Steph. Com. 657. 
 
 OUT OP COURT. A plaintiff in an 
 action at common law sues to have declared 
 within one year after the service of the sum- 
 mons, otherwise he was out of court, unless 
 the court had, by special order, enlarged the 
 time for declaring; see now Jud. Act, 1875, 
 Ord. xxi. 1. 1. Whart. Lex. Also a collo- 
 quial phrase applied to a litigant party, when 
 his case breaks down, equivalent to saying, 
 ' ' he has not a leg to stand on ;" Moz. & W. 
 
 OUT OP THE STATE. Beyond sea, 
 which title see. 
 
 OUT OF TIME. In Marine Insurance. 
 
 Missing. Generally speaking, a ship may be 
 said to be missing or out of time when she 
 has not been heard of after the longest ordi- 
 nary time in which the voyage is safely per- 
 formed. 1 Arnoult, Ins. 540 ; 2 Duer, Ins. 
 469, n. 
 
 OUTER BAR. See Uttek Barrister. 
 
 OUTER HOUSE. A department of the 
 court of session in Scotland, consisting of five 
 lords ordinary, sitting each separately, to de- 
 cide causes in the first instance. Paterson ; 
 Moz. & W. 
 
 OUTFIT. An allowance made by the 
 government of the United States to a minis- 
 ter plenipotentiary, or charg6 d'affaires, on 
 going from the United States to any foreign 
 country. 
 
 The outfit can in no case exceed one year's 
 full salary of such minister or charg6 d'af- 
 faires. No outfit is allowed to a consul. Act 
 of Congr. May 1, 1810, s. 1. See Minis- 
 ter. 
 
 As to the meaning of " outfit" in the whal- 
 ing business, see 9 Mete. 354. 
 
 OUTHOUSES. Buildings adjoining or 
 
 belonging to dwelling-houses. 
 
 BuUdings subservient to, yet distinct from, 
 the principal mansion-house, located either 
 
OUTLAW 
 
 342 OVERSEERS OP HIGHWAYS 
 
 within or without the curtilage ; 4 Conn. 46 ; 
 4 Gill & J. 402 ; 2 Cr. & D. 479. 
 
 It is not easy to say what comes within and 
 what is excluded from the meaning of out- 
 house. It has been decided that a school-room, 
 separated from the dwelling-house by a nar- 
 row passage about a yard wide, the roof of 
 which was partly upheld by that of the dwell- 
 ing-house, the two buildings, together with 
 some other, and the court which inclosed 
 them, being rented by the same person, was 
 properly described as an outhouse ; Russ. & 
 K. Cr. Cas. 295. See, for other cases, Co. 
 3d Inst. 67 ; Burn, Just. Burning, II.; 1 
 Leach, 49 ; 2 East, PI. Cr. 1020, 1021 ; 5C. 
 & P. 555 ; 6 id. 402 ; 8 B. & C. 461 ; 1 
 Mood. Cr. Cas. 323, 336; 4 Conn. 446 ; 11 
 Ala. N. s. 594 ; 20 id. 30. 
 
 OUTLAW. In English Law. One who 
 is put out of the protection or aid of the law. 
 22 Viner, Abr. 316; 1 Phill. Ev. Index; 
 Bacon, Abr. Outlawry; 2 Sell. Pr. 277 ; 
 Doctr. Plac. 331 ; 3 Bla. Com. 283, 284. 
 
 As used in the Ala. act of December 38, 
 1868, § 1, declaring counties liable for persons 
 killed by an " outlaw," outlaw is not used in 
 the strict common law sense of the term, but 
 merely refers in a loose sense to the disorderly 
 persons then roving through the state, commit- 
 ting acts of violence : 46 Ala. 118, 137. See 37 
 Me. 389. 
 
 OUTLAWRY. In English Law. The 
 
 act of being put out of the protection of the 
 law, by process regularly sued out against a 
 person who is in contempt in refusing to be- 
 come amenable to the court having jurisdic- 
 tion. The proceedings themselves are also 
 called the outlawry. 
 
 Outlawry may take place in criminal or in 
 civil cases ; 3 Bla. Com. 283 ; Co. Litt. 128 ; 
 4 Bouvier, Inst. n. 4196. 
 
 In the United States, outlawry in civil 
 cases is unknown, and if there are any 'cases 
 of outlawry in criminal cases they are very 
 rare; Dane, Abr. ch. 193 a, 34. See Ba^ 
 con, Abr. Abatement (B), Outlawry; Gilbert, 
 Hist. 196, 197; 2 Va. Cas. 244; 2 Dall. 92. 
 
 OUTRAGE. A grave injury ; a serious 
 wrong. This is a generic word which is ap- 
 plied to every thing which is injurious in a 
 great degree to the honor or rights of another. 
 44 Iowa, 314. 
 
 OUTRIDERS. In EngUsh Practice. 
 
 Bailiffs employed by the sheriffs and their 
 deputies to ride to the farthest places of their 
 counties or hundreds, to summon such as they 
 thought good to attend their county or hun- 
 dred court. 
 
 OUVERTURE DBS SUCCESSIONS. 
 
 In French law, the right of succession which 
 arises to one upon the death, whether natural 
 or civil, of another ; Brown. 
 
 OVERDRAFT. See Ovkrdraw. 
 
 OVERDRAW. To draw bills or checks 
 upon an individual, bank, or other corpora- 
 tion, for a greater amount of funds than the 
 party who draws is entitled to. 
 
 When a person has overdrawn his account 
 without any intention to do so, and after 
 wards gives a check on a bank, the holder ii 
 required to present it, and on refusal of pay 
 ment to give notice to the maker, in order to 
 hold him bound for it ; but when the maker 
 has overdrawn the bank knowingly, havins 
 no funds there between the time the check is 
 given and its presentment, the notice is not 
 requisite ; 2 N. & M'C. 483 ; 16 Me. 36. 
 
 An overdraft on a bank is in the nature of 
 a loan. It is considered a fraud on the part 
 of the depositor ; 52Penn. 206; see 10 Wall. 
 647. Indebitatus assumpsit will lie against 
 the depositor to recover the overdrat' 9 
 Penn. 475. ' 
 
 A cashier who knowingly permits an over- 
 draft is guilty of a breach of trust, and liable 
 to an action to make good the amount even 
 though the directors had been wont to coun- 
 tenance him in a custom of allowing good 
 depositors to overdraw ; Morse, Bank. 196. 
 
 OVERDUE. A bill, note, bond, or other 
 contract for the payment of money at a par- 
 ticular day, when not paid upon the day, is 
 overdue. ■ 
 
 The indorsement of a note or hill overdue 
 is ec^uivalent to drawing a new bill payable 
 at sight; 2 Conn. 419; 18 Pick. 260; 9 
 Ala. ST. 8. 153. 
 
 A note, when passed or assigned, when 
 overdue is subject to all the equities between 
 the original contracting parties; 6 Conn. 5; 
 10 id. 30, 55 ; 3 Harr. N. J. 222. 
 
 OVER-INSURANCE. See Dodble 
 Insurance. 
 
 OVERPLUS. What is left beyond a 
 certain amount ; the residue ; the remainder 
 of a thing. The same as surplus. 
 
 The overplus may be certain or uncertain, i It 
 is certain, for example, when an estate is wortli 
 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 uncertsta 
 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 tie entitled only to what may be left ; 18 
 Ves. 466. See Eesidue ; Surplus. 
 
 OVERRULE. To annul; to make void. 
 This word is frequently used to signify that a 
 case has been decided directly opposite to a for- 
 mer case; when this takes place, the firstJJeclded 
 case is said to be oven-uled as a precedeUt, and 
 cannot any longer be considered as of bindhig 
 authority. 
 
 Mr. Greenleaf has made a very valuable collec- 
 tion of overruled cases, of great service to the 
 practitioner. 
 
 It also signifies that a majority of the judges 
 having decided against the opinion of the minor- 
 ity, in which case the latter are said to be over- 
 ruled. 
 
 OVERSEERS OP HIGHWATS. So 
 called in some of the states. See Commis- 
 sioners OP Highways. 
 
OVERSEEKS OF THE POOR 343 
 
 OWNERSHIP 
 
 OVERSEERS OF THE POOR. Per- 
 sons appointed or elected to take care of the 
 poor with moneys furnished to them by the 
 public authority. 
 
 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. 
 See 1 Bla. Com. 360 ; 16 Viner, Abr. 150; 
 1 Mass. 459 ; 3 id. 436 ; 1 Penn. N. J. 6, 
 136 ; 77 N. C. 494 ; Comyns, Dig. Justice of 
 the Peace (B 63-65). 
 
 OVERSMAN. In 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 overs- 
 man has no power to decide unless the arbi- 
 ters differ in opinion; Erskine, Inst. 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 in- 
 tention of the traitor, because it opens his de- 
 signs : without an overt act, treason cannot be 
 committed ; 2 Chitty, Cr. Law, 40. An overt 
 act, then, is one which manifests the inten- 
 tion of the traitor to commit treason ; Archb. 
 Cr. PI. 379 ; 4 Bla. Com. 79 ; Co. 3d Inst. 
 12; 1 Dall. 33; 2 id. 346; 4 Cra. 75; 3 
 Wash. C. C. 234. In order to sustain a con- 
 viction for treason under the United States 
 constitution, there must be the testimony of 
 two witnesses to the same overt act or a con- 
 fession in open court. A conspirator can be 
 tried in any place where his co-conspirators 
 perform an overt act ; Rev. Stat. § 440. The 
 phrase is used in relation to the fugitive slave 
 act in 5 How. 215. 
 
 In conspiracy, no overt act is needed to 
 complete the offence ; 11 CI. & F. 155; 48 
 Md. 381 ; 49 Ind. 186. See 7 Biss. 175. 
 
 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 mere 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. See Attempt ; Con- 
 spiracy ; Cro. Car. 577. 
 
 OWELTY. The difference which is paid 
 or secured by one coparcener to another for 
 the purpose of equalizing a partition. Lit- 
 tleton, § 251; Co. Litt. 169 a; 1 Watts, 
 265 ; 1 Whart. 292 ; Cruise, Dig. tit. 1 9, § 
 32; 1 Vern. 133; Plowd. 134; 16 Viner, 
 Abr. 223, pi. 3 ; Brooke, Abr. Partition, 
 §5. 
 
 OWING. Something unpaid. A debt, 
 for example, is owing while it is unpaid, and 
 whether it be due or not. 
 
 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. 
 
 L. J. 210. ; 
 
 O WLER. In EngllBh Law. One guilty 
 of the offence of owling. 
 OW^LING. In English Law. The 
 
 offence of transporting wool or sheep out of 
 the kingdom. 
 
 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. He who has dominion of a 
 thing, real or personal, corporeal or incor- 
 poreal, which he has a right to enjoy and do 
 with as he pleases, — even to spoil or destroy 
 it, as far as the law permits, unless he be pre- 
 vented by some agreement or covenant which 
 restrains his right. 
 
 Although there can be but one absolute 
 owner of a thing, there may be a qualified 
 ownership of the same thing by many. Thus, 
 a bailor has the general ownership of the 
 thing bailed, the bailee the special owner- 
 ship. See 2 Cra. C. C. 83. The right of 
 the absolute owner is more extended than 
 that of him who has only a qualified owner- 
 ship : as, for example, the use of the thing. 
 Thus, the absolute owner of an estate, that 
 is, an owner in fee, may cut the wood, de- 
 molish the buildings, build new ones, and dig 
 wherever he may deem proper for minerals, 
 stone, plaster, and similar things, which 
 would be considered waste and ^ould not be 
 allowed in a qualified owner of the estate, as 
 a lessee or a tenant for life. The word owner, 
 when used alone, imports an absolute owner; 
 but it has been held in Ohio that the word 
 owner, in the Mechanic Lien Law of that 
 state, included the owner of the leasehold as 
 well as of the reversion, on the ground 
 that any other construction would be sub- 
 versive of the^^policy and intent of the stat- 
 ute. 2 Ohio';^23:- 
 
 The owner continues to have the same right 
 although he perform no acts of ownership or 
 be disabled from performing them, and al- 
 though 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 a sufficient time to enable 
 the latter to acquire a title to it by prescrip- 
 tion or under the Statute of Limitations. See 
 La. Civ. Code, b. 2, tit. 2, c. 1 ; Encyqlo- 
 pedie de M. d'Alembert, Proprietaire. 
 
 When there are several joint owners of a 
 thing, — as, for example, of a ship, — the ma- 
 jority of them have the right to make con- 
 tracts 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, Com. 5th ed. 519 ; 5 
 Whart. 366. See, further, 22 Wall. 263 ; 76 
 111. 490 ; 64 Mo. 112 ; 57 N. H. 110 ; 36 N. 
 J. L. 181 ; 13 N. Y. 553 ; 25 N. J. Eq. 
 284; 26 Penn. 238. 
 
 OW^NBRSHIP. The right by which a 
 thing belongs to some one in particular, to the 
 
OXGANUv 
 
 344 r Aux u ja uo JS STITUT^ PECUNLE 
 
 exclusion of all others. La. Civ. Code, art. 
 480. 
 
 OXG-ANG' (fr. Sax. gang, going;, and ox ; 
 Law Lat. bovata). In Old English Law. 
 So much land as an ox could till. According 
 to some, fifteen acres. Co. Litt. 69 a ; 
 Crompton, Jurisd. 220. According to Bal- 
 four, the Scotch oxengang, or oxgate, con- 
 tained twelve acres ; but this does not corre- 
 spond with ancient charters. See Bell, Diet. 
 Ploughgate. Skene says thirteen acres. 
 Cowel. 
 
 OYER (Lat. audire ; through L. Fr. oyer, 
 to hear). 
 
 In Pleading. A prayer or petition to the 
 court that the party may hear read to him the 
 deed, etc., stated in the pleadings of the op- 
 posite party, and which deed is by intend- 
 ment of law in court when it is pleaded with 
 a prpfert. The same end is now generally 
 attained by giving a copy of the deed of 
 which oyer is asked, or, in other instances, 
 by setting forth the instrument in full in the 
 plaintiff's statement of his case. Oyer as it 
 existed at common law seems to be abolished 
 in England ; 1 B. & P. 646, u. b; 3 id. 398 ; 
 25 E. L. & E. 304. Oyer may be demanded 
 of any specialty or other written instrument, 
 as, bonds of all sorts, deeds-poll, indentures, 
 letters testamentary and of administration, 
 and the like, which the adverse party is 
 obliged to plead with a proferi in curia. But 
 
 pleading with a profert unnecessarily does 
 not give aright to demand oyer; 1 Salk 
 497 ; and it may not be had except wheii 
 profert is made ; Hempst. 265. Denial of 
 oyer when it should be granted is ground for 
 error; 1 Blackf. 126. In such cases 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 coun- 
 terplead the right of oyer, or strike out the 
 rest of the pleading following the oyer, and 
 demur; 1 Saund. 9 6, 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. ; 2 Lev' 
 142 ; 6 Mod. 28. See Profert in Curu. 
 
 After craving oyer, the defendant may set 
 forth the deed or a part thereof, or not, at his 
 election; 1 Chitty, PI. -372; and may after- 
 wards plead non est factum, or any other 
 plea, without stating the oyer ; 2 Stra. 1241 • 
 1 Wils. 97 ; and may demur if a materid 
 variance appear between the oyer and decla- 
 ration; 2 Saund. 366, u. 
 
 See, generally, Comyns, Dig. Pleader (P), 
 Abatement (I 22) ; 3 Bouvier, Inst. ii. 2890. 
 
 OYER Airo TERMINER. See As- 
 size ; Court of Oyer and Terminer. 
 
 OYEZ (Fr. hear ye). The introduction 
 to any^ proclamation or advertisement by pub- 
 lic crier. It is wrongly and usually pro- 
 nounced oh yes. 4 Bla. Com. 340, a. 
 
 P. 
 
 FACE. 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 (Lat. pax, peace, 
 facere, to make). The act of making peace 
 between two countries which have been at 
 war ; the restoration of public tranquillity. 
 
 FACE. To deceive by false appearances ; 
 to counterfeit ; to delude : as, packing a jury. 
 See Jury; Bacon, Abr. Juries (M) ; 12 
 Conn. 262. 
 
 PACKAGE. A bundle put up for trans- 
 portation or commercial handling. " A parcel 
 is a small package ; 1 Hugh. 529 ; 44 Ala. 
 468. Certain duties charged in the port of 
 London on Ihe goods imported and exported 
 by aliens. Now abolished. Whart. Lex. 
 
 FACT. In Civil Iiaw. 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 con- 
 sensus de re solvendd, id est faciendd vel 
 prcestandA. Dig. 2. 1 4 ; Clef des Lois Rom. ; 
 Ayliffe, Pand. 558 ; Merlin, R6p. Pacle. 
 
 PACTIONS. In International Law. 
 Contracts between nations which are to be 
 performed by a single act, and of which exe- 
 cution is at an end at once. 1 Bouvier, Inst. 
 n. 100. 
 
 , PACTUM CONSTITUTiE PECU- 
 NI.3: (Lat.). In Civil Law. An agree- 
 ment by which a person appointed to his 
 creditor a certain day, or a certain time, at 
 which he promised to pay ; or it may be de- 
 fined simply an agreement by which a person 
 promises a creditor to pay him. 
 
 When a person by this pact promises his own 
 creditor to pay him, there arises a new obliga- 
 tion, 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. Pothier, 
 Obi. pt. 2, c. 6, B. 9. 
 
PACTUM DE NON PETENDO 845 
 
 PANDECTS 
 
 There is a striking conformity between tlie 
 pactum constitutcB pecunicBj as above deiined, and 
 our indebitatus assumpsit. Thie pactum constitute 
 peeunia was a promise to pay a subsisting debt, 
 wbetlier natural or civil, made in such a manner 
 as not to extinguish the preceding debt, and in- 
 troduced by the praetor to obviate some formal 
 difficulties. The action of indeUtatus assumpsit 
 was brought upon a promise for the payment of 
 a debt: is 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 ; 
 i Co. 91, 95. See 1 H. Blackst. 550-555, 850: 
 Dougl. 6, 7 ; 3 Wood, Inst. 168, 169, n. c ; 1 
 Viner, Abr. 370 ; Brooke, Abr. Action sur le Oase 
 (pi. 7, 69, 72) ; Fitzh. N. B. 94 A, n. a, 145 G ; 
 4 B. & P. 395 ; 1 Chitty, PI. 89 ; Toullier, Dr. 
 Civ. Fr. liv. 3, t. 3, c. 4, nn. 388, B9S. 
 
 PACTUM DE NON PBTBNDO 
 
 (Lat.). In Civil Tiayr. 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 un- 
 like the covenant not to sue, of the common 
 law. "Wolflf, Dr. de la Nat. § 755 ; Leake, 
 Contr. 504. 
 
 PACTUM DE QUOTA LITIS (Lat.). 
 In Civil Law. 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 at com- 
 mon law. 
 
 PAGODA. In Commercial Law. A 
 
 denomination of money in Bengal. In the 
 computation of ad valorem duties it is "valued 
 at one dollar and ninety-four cents. Act of 
 March 2, 1799, s. 61, 1 Story, U. S. Laws, 
 626. See Foreign Coins. 
 
 PAINE PORTE ET DURE. See Peine 
 Forte et Dure. 
 
 PAINS AND PENALTIES. See 
 Bill op Pains and Penalties. 
 
 PAIRING-OFF. A kind of system of 
 negative proxies, in vogue both in parliament 
 and in legislative bodies in this country, 
 whereby a member agrees with a member on 
 the opposite side, that they shall both be ab- 
 sent from voting during a given time, or upon 
 a particular question. Said to have origin- 
 ated in the house of commons in Cromwell's 
 time. See May's Pari. Prao. 
 
 PAIS, PATS. A French word, signify- 
 ing country. In law, matter in pais is matter 
 of fact, in opposition to matter of record : a 
 trial pe*-^ai« is a trial by the country, — that 
 is, by a jury. 
 
 PALACE COURT. In English Law. 
 
 A court which had jurisdiction of all personal 
 actions arising between any parties within 
 twelve miles of Whitehall, not including the 
 city of London. 
 
 It was erected in the time of Charles I., 
 and was held by the steward of the house- 
 hold, the knight-marshal and steward of the 
 
 court, or his deputy. It had its sessions once 
 a week, in the borough of Southwark. It 
 was abolished by 12 & 13 Vict. c. 101, § 13. 
 See Marshalsba, Court of. 
 
 PALFRIDUS (L. Lat.) A palfrey ; a 
 horse to travel on. Fitzherbert, Nat. Brev. 93. 
 
 FALLIO COOPERIRB. (To cover 
 with a cloak.) An ancient custom, where the 
 parents of children born out of wedlock, 
 afterwards intermarried, of the parents and 
 children standing together under a cloth ex- 
 tended, while the marriage was solemnized, 
 the act being in the nature of adoption ; Toml. 
 
 PANDECTS. In CivU Law. The 
 name of an abridgment or compilation of tlie 
 civil law, made by Tribonian and others, by 
 order of the emperor Justinian, and to which 
 he gave the force of law a.d. 533. 
 
 It is also known by the name of the Digest, 
 because in his compilation the writings of the 
 jurists were reduced to order and condensed 
 quasi digestice. The emperor, in 530, published 
 an ordinance entitled He Conceptione JHgestorumf 
 which was addressed to Tribonian, and by which 
 he was required to select some of the most dis- 
 tinguished lawyers to assist him in composing a 
 collection of the best decisions of the ancient 
 lawyers, and compile them in fifty books, with- 
 out confusion or contradiction. The instructions 
 of the emperor were to select what was useful, 
 to omit what was antiquated or superfluous, to 
 avoid contradictions, and by the necessary 
 changes, to produce a complete body of law. 
 This work was a companion to the Code of Jus- 
 tinian, and was to be governed in its arrange- 
 ment of topics by the method of the Code. Jus- 
 tinian allowed the commissioners, who were six- 
 teen in number, ten years to compile it ; but the 
 work was completed in three years, and promul- 
 gated in 533. A list of the writers from whose 
 works the collection was made, and an account 
 of the method pursued by the commissioners, will 
 be found in Smith's Diet, of Gr. & R. Antiq. 
 About a third of the collection is taken from Ul- 
 pian ; Julius Paulus, a contemporary of Ulpian, 
 stands next : these two contributed one half i of 
 the Digest. Papinian comes next. The Digest, 
 although compiled in Constantinople, was origi- 
 nally written in Latin, and afterwards trans- 
 lated into Greek. 
 
 The Digest is divided in two different ways : the 
 first into fifty books, each book in several titles, 
 and each title into several extracts or leges, and 
 at the head of each series of extracts is the name 
 of the lawyer from whose work they were taken. 
 
 The first book contains twenty-two titles. 
 The subject of the first is De Justicia et Jure, of 
 the division of person and things, of magistrates, 
 etc. The second, divided into fifteen titles, treats 
 of the power of magistrates and their jurisdic- 
 tion, the manner of commencing suits, of agree- 
 ments and compromises. The third, composed 
 of six titles, treats of those who can and those 
 who cannot sue, of advocates and attorneys and 
 syndics, and of calumny. The fourth, divided 
 into nine titles, treats of causes of restitution, 
 of submissions and arbitrations, of minors, car- 
 riers by water, inn-keepers, and those who have 
 the care of the property of others. In the fifth 
 there are six titles, which treat of jurisdiction 
 and inofficious testaments. The subject of the 
 sixth, in which there are three titles, is actions. 
 The seventh, in nine titles, embraces whatever 
 concerns usufructs, personal servitudes, habita- 
 tions, the uses of real estate and its appurte- 
 nances, and of the sureties required of the usu- 
 
PAJfDECTS 
 
 346 
 
 PANDECTS 
 
 fructuary. The HgMh book, in six titles, regu- 
 lates urban and rural servitudes. The ninth 
 book, in four titles, explains certain personal ac- 
 tions. The tenth, in four titles, treats of mixed 
 actions. The object of the eleventh book, con- 
 taining eight titles, is to regulate interrogatories, 
 the cases of which the judge was to take cogni- 
 zance, fugitive slaves, of gamblers, of surveyors 
 who made false reports, and of funerals and 
 funeral expenses. The twelfth book, in seven 
 titles, regulates personal actions in which the 
 plaintiff claims the title of a thing. The thir- 
 teenth, in seven titles, and the fcmrteenth, in six 
 titles, regulate certain actions. The fifteenth, in 
 four titles, treats of actions to which a father or 
 master Is liable in consequence of the acts of his 
 children or slaves, and those to which he is en- 
 titled, of the peculimn of children and slaves, and 
 of the actions on this right. 
 
 The sixteenth, in three titles, contains the law 
 relating to the senatus-consultum Velleianum, of 
 compensation or set-off, and of the action of de- 
 posit. The seventeenth, in two titles, expounds 
 the law of mandates and partnership. The 
 eighteenth book, in seven titles, explains the con- 
 tract of sale. The nineteenth, in five titles, treats 
 of the actions which arise on a contract of sale. 
 The law relating to pawns, hypothecation, the 
 preference among creditors, and subrogation, 
 occupy the twentieth book, which contains six 
 titles. The twenty-first book explains, under 
 three titles, the edict of the ediles relating to the 
 sale of slaves and animals, then what relates to 
 evictions and warranties. The twenty-second 
 book, in six titles, treats of interest, profits, and 
 accessories of things, proofs, presumptions, and 
 of ignorance of law and fact. The twenty-third, 
 in five titles, contains the law of marriage, and 
 its accompanying agreements. The twenty^oKrth, 
 In three titles, and the twenty-fifth, in seven titles, 
 regulates donations between husband and wife, 
 divorces and their consequence. The twenty-sixtfi 
 and twenty-seventh, each in two titles, contain the 
 law relating to tutorship and curatorship. The 
 twenty-eighth. In eighttitles, and the twenty-ninth, 
 in seven, contain the law on last will and testa- 
 ments. 
 
 The thirtieth, thirty-first, and thirty-second, each 
 divided Into two titles, contain the law of trusts 
 and specific legacies. 
 
 The thirty-third, thirty-fourth, and thirty-fifth — 
 the first divided into ten titles, the second into 
 nine titles, and the last into three titles — treat of 
 "various kinds of legacies. The thirty-sixth, con- 
 taining four titles, explains the senatus-consul- 
 tum Trebelliannm, and the time when trusts be- 
 come due. 
 
 The thirty-seventh book, containing fifteen 
 titles, has two objects, — to regulate successions 
 and_to declare the respect which children owe 
 their parents and freedmen their patrons. The 
 thirty-eighth book, in seventeen titles', treats of a 
 variety of subjects : of successions, and of the 
 degree of kindred in successions ; of posses- 
 sion; and of heirs. The thirty-ninth explains 
 the means which the law and the praetor take to 
 prevent a threatened injury, and donations inter 
 vivos and mortis causd. The fortieth, in sixteen 
 titles, treats of the state and condition of per- 
 sons, and of what relates to freedmen and liberty. 
 The different means of acquiring and losing title 
 to propert;y are explained in the forty-first book, 
 in ten titles. The forty-second, in eight titles, 
 treats of the res judicata, and of the seizure and 
 sale of the property of a debtor. Interdicts, or 
 possessory actions, are the object of the forty- 
 third book , in three titles. The forty-fourth con- 
 tains an enumeration of defences which arise In 
 consequence of the res judicata, from the lapse 
 of time, prescription, and the like. This occupies 
 
 six titles ; the seventh treats of obligations ana 
 actions. The forty-fifth speaks of stipulations 
 by freedmen or by slaves. It contains only tW 
 titles. The forty-sixth, in eight titles, treats of 
 securities, novations and delegations, payments 
 releases, and acceptilations. In the/or(«.jei/en(A 
 book are explained the punishments inflicted for 
 private crimes, de privatis delictis, among which 
 are Included larcenies, slander, libel, offences 
 against religion and public manners, removlnB 
 boundaries, and similar offences. 
 
 The forty-eighth book treats of public crimes 
 among which are enumerated those of lasa-mii. 
 jestatis, adultery, murder, poisoning, parricide 
 extortion, and the like, with rules for procedure 
 in such cases. The forty-ninth, in eighteen titles 
 treats of appeals, of the rights or the public 
 treasury, of those who are in eaptiviiy, and of 
 their repurchase. The fiftieth and last book, in 
 seventeen titles, explains the rights of munici- 
 palities, and then treats of a variety of public 
 officers. 
 
 These fifty books are allotted in seven parte; 
 the first contains the first four books ; the second 
 from the fifth to the eleventh book IncluBlve; the 
 third, from the twelfth to the nineteenth inclu- 
 sive ; the fourth, from the twentieth to the 
 twenty-seventh inclusive ; the fifth, from the 
 twenty-eighth to the thirty-sixth inelUBive ; the 
 sixth commences with the thirty-seventh and 
 ends with the forty-seventh book ; and the 
 seventh, or last, is composed of the last six 
 book^. 
 
 The division into digestwm vetm (book first to 
 and including title second of hook tventy- 
 fourth) , digestum infortiatum (title third of book 
 twenty-fourth, to and including book thirty- 
 eighth) , and digestum novum (from book thirty- 
 ninth to the end) , has reference to the order in 
 which these three parts appeared. 
 
 The Pandects aremore usually cited by English 
 and American jurists by numbers, thus: Dig. 28. 
 3. 5. 6, meaning book 23, title 3, law or fragment 
 5, section 6 ; sometimes, also, otherwise, as, D. 
 S3. 8. fr. 5. § 6. or fr. 5. § 6. D, 23. 3. The old 
 mode of citing was by titles and initial words, 
 thus: D.dejure dotium, li. profectUia, § ti pater; 
 or the same references In reverse order. From 
 this afterwards originated the following : L. pro- 
 fectitia 5. § si pater 6. D. de jwe dotiim, and 
 lastly, L. 5. § 6. D. dejure doiwm,— which is the 
 form commonly used by the continental jurists 
 of Europe. 1 Mackeldy, Civ. Law, 54, 55, § 65. 
 And see Taylor, Civ. Law, 24, 25. The abbre- 
 viation ff. was commonly used instead of Dig. or 
 Pandects. 
 
 The Pandects — as well indeed as allJustln- 
 ian's laws, except some fragments of the Code 
 and Novels— were lost to all Europe for a con- 
 siderable period. During the pillage of Amalfi, 
 in the war between the two soi-disant popes In- 
 nocent II. and Anaclet XL, a soldier discovered 
 an old manuscript, which attracted his attsntion 
 by its envelope of many colors. It was carried 
 to the Emperor Clothaire, and proved to be the 
 Pandects of Justinian. The work was arranged 
 in its present order by Warner, a German, whose 
 Latin name is Irnerius, who was appointed by 
 that emperor Professor of Roman Law at Bo- 
 logna. 1 Fournel, Hist, des Avocats, 44, 48, 51. 
 The style of the work is very grave and pure, 
 and contrasts in this respect, with that ol the 
 Code, which is very far from classical. On tne 
 other hand, the learning of the Digest stands 
 rather in the discussing of subtle questions « 
 law, and enumerations of the variety of opm- 
 ions of ancient lawyers thereupon, than in prac- 
 tical matters of daily use, of which the (W so 
 simply and directly treats. See Ridley, View, 
 pt. 1. ch. 1, 3. 
 
PANEL 
 
 347 
 
 PARAMOUNT 
 
 While the Pandects form much the largest 
 fraction of the Corpus Juris, their relative value 
 and importance are far more than proportional 
 to their extent. They are, in fact, the eoul of the 
 Corpus Juris. Hadley, Bom Law, 11. 
 
 FANEIi (diminutive from either pane, 
 apart, or page, pagella. Cowel). In Prac- 
 tice. 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 court whence the venire 
 issued. Co. Litt. 158 6 ; 3 Bla. Com. 353 ; 
 40 Cal. 586. 
 
 In Scotch La'w. The prisoner at the 
 bar, or person who takes his trial before the 
 court of justiciary for some crime. So called 
 from the time of his appearance. Bell, Diet. 
 Spelled, also, pannel. 
 
 PAPER BLOCKADE. An ineffective 
 blockade. See Blockade. 
 
 PAPBH-BOOK. In Practice. A book 
 or paper containing an abstract of all the 
 facts and pleadings necessary to the full un- 
 derstanding of a case. 
 
 Courts of error, and other courts, on argu- 
 ments, require that the judges shall each be 
 furnished with such a paper-book. In the 
 court of king's bench, in England, the tran- 
 script containing the whole of the proceed- 
 ings filed or delivered between the parties, 
 when the issue joined, in an issue in fact, is 
 called the paper-book. Steph. PI. 95 ; 5 
 Bla. Com. 317; 3 Chitt. Pr. 521 5 2 Stra. 
 1131,1266; 1 Chitty, Bail, 277; 2 Wils. 
 243 ; Tidd, Pr. 727. 
 
 In modem English practice under the Jud. 
 Act of 1875, printed copies of every special ease 
 .must now be delivered by the plaintiff (Ord. 
 xxxiv. r. 3) . And any party who enters an ac- 
 tion for trial must deliver to the officer of the 
 court a copy of the whole of the pleadings In 
 the action for the use of the judge at the trial 
 (Ord. xxxvi. r. 17). 
 
 FAPER-DA7S. In English Law. 
 
 Days on which special arguments are to take 
 place. Tuesdays and Fridays in term-time 
 are paper-days appointed by the court. Lee, 
 Diet, of Pr. ; Archb. Pr. 101. 
 
 Since the Judicature Acts have come into 
 force, similar arrangements continue to be made. 
 
 r PAPER MONEV. The engagements to 
 pay money which are issued by governments 
 and banks, and which pass as money. Par- 
 dessus, Droit Com. n. 9. Bank-notes are 
 generally considered as cash, and will answer 
 all the , purposes of currency ; but paper 
 money is not a legal tender if objected to. 
 See Legal Tender ; National Banks. 
 
 PAPER OFFICE. An ancient office in 
 the palace of Whitehall, wherein state papers 
 are kept. Also an ancient office for the court 
 records in the court of queen's bench, some- 
 times called the paper-mill; Moz. & W. 
 
 PAPERS. The constitution of the 
 United States provides that the rights of the 
 people to be secure in their persons, houses, 
 papers, and effects, against unreasonable 
 
 searches and seizures shall not be violated. 
 See Search- Wakbant. 
 
 PAPIST. A term applied by Protestanta 
 to Roman Catholics. By the act of 10 Geo. 
 IV. c. 7, known as the Catholic Emancipa- 
 tion Act, Roman Catholics were restored in 
 general to the full enjoyment of all civil 
 rights, except that of holding ecclesiastical 
 offices and certain high appointments in the 
 state. Before that act their condition had 
 been much ameliorated by various statutes, 
 beginning with 18 Geo. III. c. 60. As to the 
 right of holding property for religious pur- 
 poses, the 2 & 3 Wm. IV- c. 115, placed 
 them on a level with Protestant dissenters, 
 and the 7 & 8 Vict. c. 102, and 9 & 10 Vict, 
 c. 49, repealed all enactments oppressive to 
 Roman Catholics. See Whart. Lex. 
 
 FAR. In Common 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 nomi- 
 nal value ; above par, or below par, when 
 they sell for more or less ; 57 Ga. 324 ; 8 
 Paige, 527 ; 22 Penn. 479. 
 
 PAR OF EXCHANGE. The par of the 
 currencies of any two countries means the 
 equivalence of a certain amount of the cur- 
 rency of the one in the currency of the other, 
 supposing the currency of both to be of the 
 precise weight and purity fixed by their re- 
 spective mints. The exchange between the 
 two countries is said to be at par when bills 
 are negotiated on this footing, — t. e. when a 
 bill for £100 drawn on London sells in Paris 
 for 2520 frs., and vice versa. Bowen, Pol. 
 Econ. 321. See 11 East, 267. 
 
 PARAGE. Equality of blood, name, or 
 dignity, but more especially of land in the 
 partition of an inheritance between co-heirs. 
 Co. Litt. 166 b. Hence disparage, and dis- 
 paragement. Blount. 
 
 In Feudal Law. Where heirs took of 
 the same stock and by same title, but from 
 right of primogeniture, or some other cause, 
 the shares were unequal, the younger. was 
 said to hold of the elder, jure et titulo par- 
 agii, by right arnd title of parage being equal 
 in everything but the quantity, and owing no 
 homage or fealty. Calv. Lex. 
 
 FARAGITTiyi (from the Latin adjective 
 par, equal ; made a substantive by the addi- 
 tion 0* agium; 1 Thomas, Co. Litt. 681). 
 Equality. 
 
 In Ecclesiastical Law. The portion 
 which a woman gets on her marriage. Ayl. 
 Par. 336. 
 
 PARAMOUNT (par, by, mounter, to as- 
 cend). Above ; upwards. Kelh. Norm. Diet. 
 Paramount especifi4, above specified. Plowd. 
 209 a. 
 
 That which is superior : usually applied to 
 the highest lord of the fee of lands, tene- 
 ments, or hereditaments. Fitzh. N. B. 135. 
 Where A lets lands to B, and he underlets 
 them to C, in this case A is the paramount 
 
VABAPHERNA 
 
 348 
 
 PARDON 
 
 and B is the mesne landlord. See Mesne ; 
 2 Bla. Com. 91 ; 1 Thomas, Co. Litt. 484, 
 n. 79, 485, n. 81. 
 
 PARAPHERNA (Lat.). In CivU Law. 
 Goods brought by wife to husband over and 
 above her dower (dos). Voc. Jur. Utr.; 
 Fleta, lib. 6, c. 23, § 6 ; Mack. C. L. § 529. 
 
 PARAPHERNALIA. Apparel and or- 
 naments of a wife, suitable to her rank and 
 degree. 2 Bla. Com. 435. 
 
 These are subject to the control of the hus- 
 band during his lifetime ; 3 Atk. 394 ; but 
 go to the wife upon his death, in preference 
 to all other representatives ; Cro. Car. 343 ; 
 and cannot be devised away by the husband ; 
 Noy, Max. They are liable to be sold to 
 pay debts on a failure of assets ; 1 P. Wms. 
 730. See, also, 2 Atk. 642; 11 Vin. Abr. 
 176. The judge of probate is, in the prac- 
 tice of most states, entitled to make an allow- 
 ance to the widow of a deceased person which 
 more than takes the place of the parapherna- 
 lia. See 4 Bouv. Inst. 3996, 3997. 
 
 While a married woman may acquire title 
 to articles of apparel by gift from her hus- 
 band, yet her mere use and enjoyment of such 
 articles purchased by her husband does not 
 give title thereto as her separate property ; 
 12 S. C. 180 ; 8. c. 32 Am. Rep. 508. See 
 also 35 Ohio St. 514. In New York, by 
 statute, a married woman may sue in her own 
 name for injury to her paraphernalia ; 48 N. 
 Y. 212 ; 8. c. 8 Am. Rep. 543 ; but in the 
 absence of proof of a gift to her, the husband 
 can sue ; 74 N. Y. 116 ; s. c. 30 Am. Rep. 
 271. 
 
 PARATITLA (Lat.). In CivU Law. 
 An abbreviated explanation of some titles or 
 books of the Code or Digest. 
 
 PARATUM HABEO (Lat. I have 
 ready). In Practice. A return made by 
 the sherift" 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. After- 
 wards he 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. 536. 
 
 PARA VAIL. Tenant paravail is the 
 lowest tenant of the fee, or he who is the im- 
 mediate tenant to one who holds of another. 
 He is called tenant paravail because it is pre- 
 sumed he has the avails or profits of the land. 
 Fitzh. N. B. 136 ; Co. 2d Inst. 296. 
 
 PARCEL. A part of the estate; 38 
 Iowa, 141 ; 1 Comyns, Dig. Abatement (H 
 51), Grant (E 10). To parcel is to divide 
 an estate. Bacon, Abr. Conditions (0). 
 
 A small bundle or package. 
 
 The word "parcel" is not a sufficient de- 
 scription of the property alleged in an indict- 
 ment to have been stolen. The prisoner was 
 indicted for stealing "one parcel, of the value 
 of one shilling, of the goods," etc. The par- 
 cel in question was taken from the hold of a 
 
 vessel, out of a box broken open by the pns. 
 oner. Held an insufiicient descrintion' 7 
 Cox, C. C. 13. . r , ( 
 
 PARCENARY. The state or condition 
 of holding title to lands jointly by parceners 
 before the common inheritance has been dil 
 vided. See Coparcenary. 
 
 PARCENERS. 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 tene- 
 ments descend, and they enter, See Copar- 
 ceners. 
 
 PARCHMENT. Sheepskins dressed for 
 writing, so called from Pergamus^ Asia Minor, 
 where they were invented. Used for deeds 
 and was used for writs of summons in Eng- 
 land previous to the Judicature Act, 1876 
 (Ord. V. 1. 5). Whart. Lex. 
 
 PARCO PRACTO (Lat.). In English 
 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. 
 
 PARDON. An act of grace, proceeding 
 from the power intrusted with the execution 
 of the laws, which exempts the individual on 
 whom it is Isestowed from the punishment the 
 law inflicts for a crime he has committed. 1 
 Pet. 160. 
 
 Every pardon granted to the g^ullty is in dero- 
 gation of the law : if the pardon be equitaWe, 
 the law Is bad ; for where legislation and the ad- 
 ministration of the law are perfect, pardons most 
 be a violation of the law. But, as human actions 
 are necessarily imperfect, the pardoning power 
 must be vested somewhere, in order to prevent 
 injustice when it is ascertained that an error has 
 been committed. 
 
 An absolute pardon is one which firees the 
 criminal without any condition whatever. 
 
 A conditional pardon is one to which a 
 condition is annexed, performance of which 
 is necessary to the validity of the pardon. 1 
 Bail. 283 ; 10 Ark. 284; 1 M'Cord, 176; 1 
 Park. Cr. Cas. 47. 
 
 A general pardon is one which extends to 
 all offenders of the same kind. It maybe 
 express, as when a general declaration is made 
 that all offenders of a era-tain class shall be 
 pardoned, or implied, as in case of the repeal 
 of a penal statute. 2 Over. 423. 
 
 The pardoning power is lodged in the ex- 
 ecutive of the United States and of the va- 
 rious states, and extends to all oifenc'es except 
 in cases of impeachment. In some states a 
 concurrence of one of the legislative bodies 
 is required ; in other states, boards of pardon 
 have been provided, whose recommendation 
 of a pardon to the executive is a prerequisite 
 to the exercise of the power. 
 
 The power of pardon conferred by the 
 constitution upon the president is unlimited, 
 except in cases of impeachment. It extends 
 to every offence known to thelaw, and may 
 be exercised at any time after its commission, 
 either before legal proceedings are taken, M 
 
PARDON 
 
 849 
 
 PARES 
 
 during their pendency, or after conviction and 
 judgment. The power is not subject to legis- 
 lative control. A pardon reaches the punish- 
 ment prescribed for an offence, and the guilt 
 of the offender. If granted before conviction, 
 it prevents any of the penalties and disabil- 
 ities consequent upon conviction from attach- 
 ing : if granted after conviction, it removes 
 the penalties and disabilities, and restores him 
 to all his civil rights. It gives him a new 
 credit and capacity. There is only this lim- 
 itation to its operation; it does not restore 
 offices forfeited, or property or interests vested 
 in others, in consequence of the conviction 
 and judgment; 4 Wall. 333. 
 
 There are several ways (as given by Judge 
 Cooley) in which the pardoning power of the 
 president may be exercised: 1. A pardon 
 may be given to a person under conviction by 
 name, and this will take effect from its de- 
 livery, unless otherwise provided therein. 2. 
 It may be given to one or more persons 
 named, or to a class of persons, before con- 
 viction, and even before prosecution begun. 
 Such a pardon is rather in the nature of an 
 amnesty. 3. It may be given by proclama- 
 tion, forgiving all persons who may have 
 been guilty of the specified offence, or of- 
 fences ; 4 Wall. 330, 380; 13 id. 128; and 
 in this case the pardon takes. effect from the 
 time the proclamation is signed; 17 Wall. 
 191. 4. It may in any of these ways be made 
 a pardon, on conditions to be first performed, 
 in which case it has effect only on perform- 
 ance ; or on conditions to be thereafter per- 
 formed, in which case a breach in the con- 
 dition will place the offender in the position 
 occupied by him before the pardon was issued ; 
 7 Pet. 150 ; 2 Caines, 57 ; 1 McCord, 176. 
 
 It is to be exercised in the discretion of the 
 power with whom it is lodged. As to pro- 
 mises of pardon to accomplices, see 1 Chitty, 
 Cr. Law, 83 ; 1 Leach, 115. 
 
 In order to render a pardon valid, it must 
 express with accuracy the crime intended to 
 be forgiven ; 4 Bla. Com. 400 ; 3 Wash. C. 
 C. 335; 7 Ind. 359; 1 Jones, No. C. 1. 
 
 The effect of a pardon is to protect from 
 punishment the criminal for the offence par- 
 doned; 6 Wall. 766; 16 id. 147; 91 U. S. 
 474 ; but for no other ; 10 Ala. 475 ; 1 Bay, 
 34. It seems that the pardon of an assault 
 and battery, which afterwards becomes murder 
 by the death of the person beaten, would not 
 operate as a pardon of the murder ; 12 Pick. 
 496. See Plowd. 401 ; 1 Hall, N. Y. 426. 
 In general, the effect of a full pardon is to 
 restore the convict to all his rights. But to 
 this there are some exceptions. First, it does 
 not restore civic capacity ; 2 Leigh, 724. See 
 1 Strobh. 150 ; 2 Wheel. Cr. Cas. 451 ; 33 
 N. H. 388. Second, it does not affect a status 
 of other persons which has been altered or a 
 right wliich has accrued in consequence of the 
 commission of the crime or its punishment ; 
 10 Johns. 232; 2 Bay, 565; 5 Gilm. 214; or 
 third persons who, by the prosecution of judi- 
 cial proceedings, may have acquired rights to | 
 
 a share in penalties or to property forfeited 
 and actually sold ; 4 Wash. C. C. 64 ; 1 Abb. 
 U. S. 110 ; 9 Fed. Rep. 645 ; but see 4 Biss. 
 336 ; 6 Wall. 766 (as to forfeiture to U. S.). 
 
 When the pardon is general, either by an 
 act of amnesty, or by the repeal of a penal 
 law, it is not necessary to plead it ; because 
 the court is bound, ex officio, to take notice 
 of it; Baldw. 91; and the criminal cannot 
 even waive such pardon, because by his ad- 
 mittance no one can give the court power to 
 punish him when it judicially appears there is 
 no law to do it. But when the pardon is spe- 
 cial, to avail the criminal it must judicially 
 appear that it has been accepted ; and for this 
 reason it must be specially pleaded ; 7 Pet. 
 150, 162; and if he has obtained a pardon 
 before arraignment, and instead of pleading 
 it in bar he pleads the general issue, he shall 
 be deemed to have waived the benefit of it, 
 and cannot afterwards avail himself of it in 
 arrest of judgment ; 1 RoUe, 297. See 1 
 Dy. 34 a ; Keilw. 58 ; T. Raym. 13 ; 3 Mete. 
 Mass. 453. 
 
 The power to pardon extends to punish- 
 ments for contempt ; 7 Blatch. 23. 
 
 All contracts made for the buying or pro- 
 curing a pardon for a convict are void ; and 
 such contracts will be declared null by a 
 court of equity, on the ground that they are 
 opposed to public policy ; 4 Bouvier, Inst. n. 
 3857. 
 
 See, generally. Bacon, Abr. Pardon ; Co- 
 myns. Dig. Pardon; Viner, Abr. Pardon; 
 13 Petersd. Abr.; Dane, Abr.; Co. 3d Inst. 
 233-240; Hawk. PI. Cr. b. 2, c. 37 ; 1 
 Chitty, Cr. Law, 762-778 ; 2 Russ. Cr. 595 ; 
 Stark. Cr. PL 368, 380. 
 
 PARENS PATRI.a! (Lat.). Father 
 of his country. In England, the king ; 3 
 Bla. Com. 427; 2 Steph. Com. 528; in 
 America, the power is reserved to the states ; 
 4 Kent, 508, n.; 17 How. 393. 
 
 PARENT AND CHILD. See Father ; 
 Mother. 
 
 PARENTAGE. Kindred in the direct 
 ascending line. See 2 Bouv. Inst. n. 1955. 
 
 For a discussion of the subject in connec- 
 tion with Citizenship, see 2 Kent, 49 ; Morse 
 on Citizenship ; Citizen ; Naturaliza- 
 tion. 
 
 PARENTS. The lawful father and 
 mother of the party spoken of; 1 Murph. 
 No. C. 336; 11 S. & R. 93. 
 
 The term parent differs from that of ancestor, 
 the latter embracing not only the father and 
 mother, but every person in an ascending line. 
 It differs also from predecessor, which is applied 
 to corporators. Wood, Inst. 68 ; 7 Ves. Ch. 522 ; 
 1 Murph. No. C. 836; 6 Binn. Penn. 355. See 
 Father ; Mother. 
 
 By the civil law, grandfathers and grand- 
 mothers, and other ascendants, were, in certain 
 cases, considered parents. Diet, de Jur. Par- 
 ente. See 1 Ashm. Penn. 55 ; 3 Kent, 159 ; 5 
 East, 233 ; Bouvier, Inst. Index. 
 
 FARES (Lat.). A man's equals ; his 
 peers ; 3 Bla. Com. 349. 
 
PARES CURIAE 
 
 S60 PARLIAMENTUM INDOCTDM 
 
 FARES CURIiB (Lat.). In Feudal 
 La'w. Those vassals who were bound to at- 
 tend the lord's court ; Erskine, Inst. b. 2, tit. 
 3, s. 17; 1 Washb. R. P. 
 
 PARI DELICTO (Lat.). In Criminal 
 Law. In a similar offence or crime ; equal 
 in guilt. 
 
 A person who is in pari delicto with another 
 differs from a partieeps eriminis in this, that the 
 former terra always Includes the latter, but the 
 latter does not always include the former. 8 
 East, 381, 382. 
 
 FARI MATERIA (Lat.). Of the same 
 matter; on the same subject: as, laws^ort 
 materia must be construed with reference to 
 each other. Bacon, Abr. Statute (I 3). 
 
 FARI PASSU (Lat.) By the same gra- 
 dation. Used especially of creditors who, 
 in marshalling assets, are entitled to receive 
 out of the same fund without any precedence 
 over each other. 
 
 PARISH. A district of country, of dif- 
 ferent extents. 
 
 In Ecclesiastical Law. The territory 
 committed to the charge of a parson, or vicar, 
 or other minister. Ayl. Par. 404 ; 2 Bla. 
 Com. 112 ; Hoffm. Eccl. Law. 
 
 Although, in' the absence of a state church in 
 this country, the status of parishes is compara- 
 tively unimportant, y et in the Prot. Epis. Church , 
 at least, their boundaries and the rights of the 
 clergy therein are quite clearly defined by 
 canon. In the leading case of Stubbs and Boggs 
 vs. Tyng, decided in New York, in March, 1868, 
 the defendant was found guilty of violating a 
 canon of the church, in having officiated, with- 
 out the permission of plaintiffs within the cor- 
 porate bounds of the city of New Brunswick, 
 N. J., which then constituted the plaintiffs' 
 parochial cure ; Baum, 103-148. 
 
 In Louisiana. Divisions corresponding 
 to counties. The state is divided into par- 
 ishes. 
 
 In New England. Divisions of a town, 
 originally territorial, but which now constitute 
 quasi-corporations, consisting of those con- 
 nected with a certain church. See 2 Mass. 
 501 ; 16 id. 457, 488, 492 et seq. ; 1 Pick. 
 91. 
 
 In English Law. The children of pa- 
 rents unable to maintain them, who are ap- 
 prenticed by the overseers of the poor of 
 their parish, to such persons as may be will- 
 ing to receive them ; 2 Steph. Com. 230. 
 
 PARISH CLERK. In EngUsh Law. 
 An officer, in former times often in holy 
 orders, and appointed to officiate at the altar ; 
 now his duty consists chiefly in making re- 
 sponses in church to the minister. By com- 
 mon law he has a freehold in his office, but it 
 seems now to be falling into desuetude ; 2 
 Steph. Com. 700 ; Moz. & W. 
 
 PARISHIONERS. Members of a par- 
 ish. In England, for many purposes they 
 form a body politic. See Parish. 
 
 PARISH CONSTABLE. See Consta- 
 ble. 
 
 PARISH COURT. In Louisiana the 
 local courts in each parish, corresponding 
 
 generally to county and probate courts, and 
 in some respects, justices' courts, in other 
 states were formerly so called. 
 
 PARIUM JUDICIUM (Lat. the deci 
 sion of ejiuals). The right of trial by one's 
 peers : t. e. by jury in the case of a com- 
 moner, by the house of, peers in the case of 
 a peer. 
 
 PARK (L. Lat. parens). An inclcsure- 
 2 Bla. Com. 38. A pound. Reg. Orig! 
 166 ; Cowel. An inclosed chase extending 
 only over a man's own grounds. 13 Car. IL 
 c. 10 ; Manw. For. Laws ; Crompton, Jur 
 fol. 148 ; 2 Bla. Com. 38. 
 
 Pairk is still retained in Ireland for 
 "pound." 
 
 PARLE HILL (also called Parling Hill). 
 A hill where courts were held in olden times, 
 Cowel. 
 
 PARLIAMENT (said to be derived from 
 parler la ment, to speak the mind, or parum 
 lamentuni) . 
 
 In English Law. The legislative branch 
 of the government of Great Britain, consist- 
 ing of the house of lords and the house of 
 commons. 
 
 The parliament is usually considered to con- 
 sist of the king,^ lords, and commons. See 1 
 Bla. Com. 147*, 157*, Chitty's note ; 2 Steph. 
 Com. 537. In 1 Woodd. Lect. 30, the lords tem- 
 poral, the lords spiritual, and the commons are 
 called the three estates of the realm : yet the 
 king is called a part of the parliament, in right 
 of his prerogative of veto and the necessity of 
 his approval to the passage of a bill. That the 
 connection between the king and the loids tem- 
 poral, the lords spiritual, and the commons, who 
 when assembled in parliament form the three 
 estates of the realm, is the same as that Thich 
 subsists between the king and those estates— the 
 people at large — out of parliament, the king not 
 being in either case a member, branch, or co- 
 estate, but standing solely in the relation of sov- 
 ereign or head, see Colton, Records, 710 ; Hot 
 Pari. vol. iii. 623 a ; 2 M. & G. 457, n. 
 
 Records of writs summoning knights, burges- 
 ses, and citizens to parliament are first found 
 towards the end of the reign of Henry III., such 
 writs having issued in the thirty-eighth and 
 forty-ninth years of his reign. 4 Bla. Com. 425; 
 Prynne, 4th Inst. 2. In the reign of Edward 
 III. it assumed its present form. Jd. Since the 
 reign of Edward III. the history' of England 
 shows an almost constant increase in the power 
 of parliament. Anne was the last sovereign who 
 exercised the royal prerogative of vetoi and, as 
 this prerogative no longer practically exists, the 
 authority of parliament is absolutely) unre- 
 strained. The parliament can only meetswhen 
 convened by the sovereign, exept on the demise 
 of the sovereign with no parliament in being, in 
 which case the last parliament is to assemble, o 
 Anne, c. 7. The sovereign has also power to 
 prorogue and dissolve the parliament. May, |n- 
 perial Parliament. The origin of the English 
 parliament seems traceable to the m(en« ff^J* 
 of the Saxon kings. Encyc. Brit. See May s 
 Law, Priv. and Proc. of Parliament; High 
 
 COUBT OF PaBLIAMENT. 
 
 PARLIAMENTUM INDOCTUM 
 
 (Lat. unlearned parliament). A name ap- 
 plied to a parliament assembled, under a 
 
PARLOR CAR 
 
 351 
 
 PARSON 
 
 law that no lawyer should be a member of it, 
 at Coventry. 6 Hen. IV. ; 1 Bla. Cora. 177; 
 Walsingham, 412, n. 30 ; Rot. Pari. 6 Hen. 
 IV. 
 
 PARLOR CAR. See Sleeping Car. 
 
 PAROL (more properly, parole. A 
 French word, which means, literally, word, or 
 speech). A term used to distinguish con- 
 tracts which are made verbally, or in writing 
 not under seal, which are called parol con- 
 tracts, from those which are under seal, which 
 bear the name of deeds or specialties ; 1 
 Chitty, Contr. 1; 7 Term, 350, 351, n.; 3 
 Johns. Cas. 60 ; 1 Chitty, PI. 88. It is pro- 
 per to remark that when a contract is made 
 under seal, and afterwards it is modified ver- 
 bally, it becomes wholly a parol contract ; 2 
 Watts, 451 ; 9 Pick. Mass. 298 ; 13 Wend. 
 71. 
 
 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 ances- 
 tors, he prays that the parol may demur, i. e. 
 that the pleadings may be stayed till he shall 
 attain fufl age ; 3 Bla. Com. 300 ; 4 East, 
 486 ; 1 Hoffm. 178. See a form of a plea in 
 abatement, praying that the parol may de- 
 mur, in 1 Wentw. PI. 43, and 2 Chitty, PI. 
 520. But a devisee cannot pray the parol to 
 demur ; 4 East, 485. 
 
 PAROL DEMURRER. The staying of 
 proceedings in a real action brought by or 
 against an infant, until the infant should come 
 of age. Abolished by Stat. 11 Geo. IV.; 
 Moz. &W. 
 
 PAROL EVIDENCE. Evidence verb- 
 ally delivered by a witness. As to the cases 
 when such evidence will be received or re- 
 jected, see Stark. Ev. pt. 4, pi. 995-1055; 1 
 Phill. Ev. 466, c. 10, s. 1 ; Sugd. Vend. 97 ; 
 78 N. Y. 74; 24 Alb. L. J. 430; 5 Am. 
 Sep. 241; 6 id. 678. See Evidence; Con- 
 tract. 
 
 ' PAROL LEASE. An agreement made 
 orally between parties, by which one of them 
 leases to the other a certain estate. 
 
 By the English Statute of Frauds of 29 Car. 
 II. c. 3, es. 1, 2,3, it isdeclared that " all leases, 
 estates, or terms of years, or any uncertain in- 
 terest 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 exceed- 
 ing 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 as- 
 signed, granted, or surrendered unless in writ- 
 ing." The principles of this statute have been 
 adopted, with some modifications, in nearly all 
 the states of the Union. 4 Kent, 95 ; 1 Hill, Abr. 
 130. 
 
 PAROLE. In 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, § 151. 
 
 PARRICIDE (from Lat. pater, father, 
 caedere to slay). In Civil La'«7. One who 
 murders his father. One who murders his 
 mother, his brother, his sister, or his children. 
 Merlin, Rep. Parricide; Dig. 48. 9. 1. 
 3,4. 
 
 This offence is defined almost in the same words 
 in the penal code of China. Penal Laws of China, 
 
 b. 1, s. 2, § 4. 
 
 The criminal was punished by being scourged, 
 and afterwards sewed in a sort of sack, with a 
 dog, a cook, 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 ; Code, 9, 17. 1. 1. 4, 18, 6 ; 
 Brown, Civ. Law, 423 ; Wood, Civ. Law, b. 3, c. 
 10, s. 9. 
 
 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 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 immedi- 
 ately put to death. Id. art. 13. 
 
 The common law does not define this crime, 
 and makes no difference between itaaunishment 
 and the punishment of murder ; 1 Hale, PI. Cr. 
 380 ; Prin. Penal Law, c. 18, § 8, p. 243 ; Dalloz, 
 Diet. Homicide, § 3. 
 
 PARS ENITIA (Lat.). In Old English 
 Laiv. The share of the eldest daughter where 
 lands were parted between daughters by lot, 
 she having her first choice after the division 
 of the inheritance. Co. Litt. 166 J ; Glanv. 
 lib. 7, c. 3 ; Fleta, lib. 5, c. 10, § to divis- 
 ionem. 
 
 PARS RATIONABILIS (Lat. reason, 
 able part). That part of a man's goods 
 which the law gave to his wife and children. 
 2 Bla. Com. 492; Magn. Chart.; 9 Hen. 
 III. c. 18 ; 2 Steph. Com. 228, 254. 
 
 PARSON. In Ecclesiastical Law. 
 One that hath full possession of all the rights 
 of a parochial church. 
 
 So called because the church, which is an in- 
 visible body, is represented by his person. In 
 England he is himself a body corporate, in order 
 to protect and defend the church (which he per- 
 sonates) by a perpetual succession ; Co. Litt. 
 300. 
 
 The parson has, during life, the freehold 
 in himself of the parsonage-house, the glebe, 
 the tithes, and other dues, unless these are 
 appropriated, i. e. given away, to some spirit- 
 ual corporation, sole or aggregate, which the 
 law estee;ns as capable of providing for the 
 service of the church as any single private 
 clergyman ; 4 Bla. Com. 384 ; 1 Hajrg. 
 Cons. 162; Plowdi 493; 3 Steph. Com. 70. 
 
 The ecclesiastical or spiritual rector of a 
 rectory. 1 Woodd. Lect. 311 ; Fleta, lib. 7, 
 
 c. 18; Co. Litt. 300. Also, any clergyman 
 having a spiritual prefeiment. Co. Litt. 17, 
 
PARSON IMPARSONA 
 
 352 
 
 PARTICULARS 
 
 18. Holy orders, presentation, inatitution, 
 and induction are necessary for a parson ; and 
 a parson may cease to be such by death, resig- 
 nation, cession, or deprivation, which last 
 may be for simony, non-conformity to canons, 
 adultery, etc. ; Co. Litt. 120; 4 Co. 75, 76. 
 
 PARSON IMPARSONA (Lat.). A 
 persona, or parson, may be termed imperson- 
 ata, or impersonee, only in regard to the pos- 
 session he hath of the rectory by the act of 
 another. Co. Litt. 300. One that is in- 
 ducted and in possession of a benefice : e. g. 
 a dean and chapter. Dy. 40, 221. He that 
 is in possession of a church, be it presentative 
 or appropriate, and with whom the church is 
 full, — persona in this case meaning the patron 
 who gives the title, and persona impersonata 
 the parson to whom the benefice is given in 
 the patron's right. Reg. Jud. 24 ; 1 Barb. 
 330 ; 1 Busb. Eq. 55 ; 10 Pet. 618 ; 70Penn. 
 210. 
 
 PARSONAGE. The house set apart for 
 the minister's residence. A portion of lands 
 and tithes established by law for the mainten- 
 ance of a minister. Toml. 
 
 PART. A share : a purpart. This word 
 is also used in contradistinction to counter- 
 part : covenants were formerly made in a 
 script and rescript, or part and counterpart. 
 
 PART AND PERTINENT. In Scotch 
 Jia.vr. 4ftterm in a conveyance including 
 lands or servitudes held for forty years as part 
 of, or pertinent to, lands conveyed, natural 
 fruits before they are separated, woods and 
 parks, etc.; but not steelbow stock, unless the 
 lands have been sold on a rental. Bell, 
 Diet.; Erskine, Inst. 2. 5. 3 et seq. 
 
 PART-OWNERS. Those who own a 
 thing together, or in common. 
 
 In Maritime liaMT. A term applied to 
 two or more persons who own a, vessel to- 
 gether, and not as partners. 
 
 In general, when a majority of the part- 
 owners are desirous of employing such a ship 
 upon a particular voyage or adventure, they 
 have a right to do so upon giving security in 
 the admiralty by stipulation to the minority, 
 if required to bring her back and restore the 
 ship, or, in case of her loss, to pay them the 
 value of their respective shares; 4 Bouv. 
 Inst. n. 3780 ; Abb. Shipp. 70 ; 3 Kent, 151 ; 
 Story, Partn. §489 ; 11 Pet. 175. When the 
 majority do not choose to employ the ship, 
 the minority have the same right, upon giving 
 similar security ; 11 Pet. 175 ; 1 Hagg. Adm. 
 306 ; Jacobsen, Sea-Laws, 442. 
 
 Where part-owners are equally divided as 
 to the employment upon any particular voy- 
 age, the courts of admiralty have manifested a 
 disposition to support the right of the court to 
 order a sale of the ship ; Story, Partn. § 439 ; 
 >Bee, 2; Gilp. 10; 18 Am. Jur. 486. See 
 Pars. Mar. L. 
 
 PARTES FINIS NIL HABUERXTNT 
 (Lat. the parties to the fine had nothing ; i. e. 
 nothing which they could convey). In Old 
 English Pleading. The plea to a fine levied 
 
 by a stranger, and which only bound parties 
 and privies. 2 Bla. Com. 356»: Hob ^<u ■ 
 1 P. Wms. 520; 1 Woodd. Leet. 315.' ' 
 
 PARTIAL LOSS . A loss of a part of a 
 thing or of its value, as contrasted witli » 
 total loss. 
 
 Where this happens by damage to an arti- 
 cle, it is also called a particular average 
 which is to be borne by the owner, aa disfc 
 guished from a general average loss, which is 
 to be contributed for by the other interests 
 exposed to the same perils ; 1 Phill. Ins ss 
 1269, 1422. See Average; Abando^ 
 
 MENT. 
 
 PARTICEPS CRIMINIS. A partner in 
 crime. 
 
 PARTICITLAR AVERAGE. Every 
 kind of expense or damage, short of total loss, 
 which regards a particular concern, and which 
 is to be wholly borne by the proprietor of 
 that concern or interest alone. See 3 Bosw 
 N. T. 385 ; 14 Allen, 320 ; 2 Phill. Ins. § 
 354 ; 1 Pars. Marit. Law, 284 ; Gourlie, Gen. 
 Average; Average. 
 
 PARTICULAR AVERMENT. See 
 
 Averment. 
 
 PARTICULAR CUSTOM. A custom 
 which only affects the inhabitants of some 
 particular district. 
 
 To be good, a particular custom must have 
 been used so long that the memory of man 
 runneth not to the contrary ; must have been 
 continued ; must have been peaceable.; must 
 be reasonable ; must be certain ; must be 
 consistent with itself; must be consistent with 
 other customs. 1 Bla. 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, 
 and the tenant of such estate is called the 
 particular tenant ; 2 Bla. Com. 165 ; 4 Kent, 
 226 ; 16 Vin. Abr. 216 ; 4 Comyns, Dig. 32; 
 5 id. 346. See Remainder. 
 
 PARTICULAR LIEN. A right whi«h a 
 person has to retain property in respect of 
 money or laber expended on such particular 
 property. See Lien. 
 
 PARTICULAR STATEMENT. In 
 Pennsylvania Pleading and Practice. A 
 statement particularly specifying the date of 
 a promise, book-account, note, bond (penal 
 or single), bill, or all of them, on which M 
 action is founded and the amount believed by 
 the plaintifi" to be due from the defendant. 6 
 S. & R. 21. It is founded on the provisions 
 of a statute passed March 21, 1806. See 4 
 Sm. Penn. Laws, 828. It is an unmethodical 
 declaration, not resti-icted to any particular 
 form; 2 S. &R. 537; 3 td. 405; 8id.3U, 
 567. 
 
 PARTICULARS. See Bill of Fab- 
 
 TICULARS. 
 
PARTIES 
 
 S53 
 
 PARTIES 
 
 PARTIES (Lat. pars, a part). Those 
 ■who take part in the performance of an act, 
 as, making a contract, carrying on an action. 
 A party in law may be said to be those united 
 in interest in the performance of an act : it 
 may then be composed of one or more per- 
 sons. Parties includes every party to an act. 
 It is also used to denote ail the individual 
 separate persons engaged in the act, — in 
 which sense, however, a corporation may be 
 a party. 
 
 To Contracts. Those persons who engage 
 themselves to do or not to do the matters and 
 things contained in agreement. 
 
 In general, aU persons may be parties to 
 contracts. But no person can contract with 
 himself in a different capacity, as there must 
 be an agreement of minds ; 1 Vern. 465 ; 9 
 Ves. Ch. 234 ; 13 id. 156 ; 2 Bro. C. C. 400 ; 
 1 Pet. C. C. 373; 3 Binn. 54; 13 S. & R. 
 210; 9 Paige, Ch. 238, 650; 2 Johns. Ch. 
 252; 4 How. 503. And no want, immatu- 
 rity, or incapacity of mind, in the consider- 
 ation of the law, disables a person from be- 
 coming a party. Such disability may be en- 
 tire or partial, and must be proved ; 2 Stark. 
 326 ; 1 Term, 648 ; 11 Ad. & E. 634 ; 17 L. 
 J. Ex. 233. 
 
 Aliens were under greater disabilities at 
 common law with reference to real than to 
 personal propertv ; 7 Co. 25 a; 1 Ventr. 
 417; 6 Pet. 102; 11 Paio;e, Ch. 292; 1 
 Gush. 531. The disability is now removed, 
 in a greater or less degree, by statutes in the 
 various states ; 2 Kent, Lect. 25 ; and alien 
 friends stand on a very different footing from 
 alien enemies;'^ 2 Sandf. Ch. 586; 2 W. & 
 M. 1 ; 3 Stor. 458; 2 How. 65 ; 5 id. 103 ; 
 8 Cra. 110; 3 Dall. 199. 
 
 Bankrupts and insolvents are disabled to 
 contract, by various statutes, in England, as 
 well as by insolvent laws in the states of the 
 United States. 
 
 Duress renders a contract voidable at the 
 option of him on whom it was practised. See 
 Duress. 
 
 Excommunication can have no effect in the 
 United States, as there is no national church 
 recognized by the law. 
 
 Infants are generally incapable of contracts 
 ing before the age of twenty-one years. This 
 provision is intended for their benefit; and 
 therefore most of their contracts are voidable, 
 and not void. It is the infant's privilege at 
 maturity to elect whether to avoid or ratify 
 the contract he has made during minority. 
 Though the infant is not bound, , the adult 
 with whom he may contract is. The infant 
 may always sue, but cannot be sued ; Stra. 
 937, — which seems to be an exception to the 
 mutuality of contracts. The infant cannot 
 avoid his contract for necessaries; 10 Vt. 
 225; UN. H. 51: 12 Mete. 659 : 6 M. & 
 W. 42. ' 
 
 Married women, at common law, were 
 almost entirely disabled to contract, their 
 personal existence being almost entirely 
 Vol. II.— 23 
 
 merged in that of their IRisbands ; 2 J. J. 
 Marsh. 82 ; 23 Me. 305 ; 2 Chitty, Bail, 117; 
 5 Exch. 388 ; so that contracts made by them 
 before marriage may be taken advantage of 
 and enforced by their husbands, but not by 
 themselves; 13 Mass. 384; 17 Me. 29 ; 2 
 Dev. 360 ; 9 Cow. 230 ; 14 Conn. 99 ; 6 T. 
 B. Monr. 257. The contract of a feme 
 covert is, then, generally void, unless she be 
 the agent of her husband in which case it is 
 the nusbancfs contract, and not hers; 15 
 East, 607 ; 6 Mod. 171 ; 6 N. H. 124; 16 
 Vt. 390; 5 Binn. 285; 15 Conn. 347. See 
 Wife. 
 
 Non compotes mentis. At common law, for- 
 merly, in this class were included lunatics, 
 insane persons, and idiots. It is understood 
 now to include drunkards ; 4 Conn. 203 ; 2 
 N, H. 435; 15 Johns. 503; 2 Harr. & J. 
 421; 11 Pick. 304; 1 Rice, 56 ; 5 Munf. 
 466; 3 Blackf. 51 ; 1 Green, N. J. 233; 1 
 Bibb, 168 ; n Miss. 94 ; 13 M. & W. 623. 
 Spendthrifts under guardianship are not com- 
 petent to make a valid contract for the pay- 
 ment of money; 13 Pick. 206. Seamen 
 " are the wards of the admiralty, and though 
 not technically incapable of entering into a 
 valid contract, they are treated in the same 
 manner as courts of equity are accustomed to 
 treat young heirs, dealing with their expect- 
 ancies, wards with their guardians, and ces- 
 tuis que trust with their trustees." 2 Mas. 
 541. See 3 Kent, 193 ; 2 Dods. 504 ; 2 
 Sumn. 444. 
 
 Outlawry does not exist in the United 
 States. 
 
 As to the character in which parties con- 
 tract. They may act independently or seve- 
 rally, jointly, or jointly and severally. The 
 decision of the question of the kind of lia- 
 bility incurred depends on the terms of the 
 contract, if they are express, or, if not ex- 
 press, upon the intention of the parties as 
 gathered from the circumstances of the case. 
 Whenever, however, the obligation is under- 
 taken by two or more, or a right given to two 
 or more, it is a general presumption of law 
 that it is a joint obligation or right ; words of 
 joinder are not necessary for this purpose ; 
 but, on the other hand, there should be 
 words of severance in order to produce a seve- 
 ral responsibility or a several right ; 1 Taunt. 
 7 ; 13 M. & W. 499 ; 8 C. & P. 332 ; Shepp. 
 Touchst. 375 ; 6 Wend. 629 ; 7 Mass. 58 ; 
 10 Barb. 385, 638 ; 14 id. 644 ; 1 Lutw. 
 695 ; Peake, N. P. 130 ; Holt, N. P. 474 ; 
 1 B. & C. 407 ; 12 Gill & J. 265. It may be 
 doubted, however, whether any thing less 
 than express words can raise at once a joint 
 and several liability. Parties may act as the 
 representatives of others, as agents, factors 
 or brokers, servants, attorneys, executors, or 
 administrators, and guardians. See these 
 titles. 
 
 They may act in a collective capacity, as 
 corporations, joint-stock companies, or as 
 partnerships. See these titles. 
 
PARTIES 
 
 354 
 
 PARTIES 
 
 New parties may be made to contracts al- 
 ready in existence, by novation, assignment, 
 and indorsement, which see. 
 
 To Suits in Equity. The person who 
 seeks a remedy in chancery by suit, com- 
 monly called the plaintiff, or complainant, 
 and the person against whom the remedy is 
 sought, usually denominated the defendant, 
 are the parties to a suit in equity. 
 
 Active parties are those who are so involved 
 in the subject-matter in controversy that no 
 decree can be made without their being in 
 court. Passive parties are those whose inter- 
 ests are involved in granting complete relief 
 to those who ask it. 1 Wash. C. C. 517. See 
 3 Ala. 361. 
 
 Plaintiffs. 
 
 In general, all persons, whether natural 
 or artificial, may sue in equity ; and an equit- 
 able title only is sufficient; 10 111. 332. In- 
 capacities which prevent suit* are absolute, 
 which disable during their continuance, or 
 partial which disable the party to sue alone. 
 
 Alien enemies are under an absolute inca- 
 pacity to sue. Alien friends may sue ; Mitf. 
 Eq. PI. 129 ; Coop. Eq. PI. 27 ; if the subject- 
 matter be not such as to disable them ; Co. 
 Litt. 129 b ; although a sovereign ; 1 Sim. 94 ; 
 2 Gall. 105 ; 8 Wheat. 464 ; 4 Johns. Ch. 370 ; 
 Adams, Eq. 314. In such case he must have 
 been first recognized by the executive of the 
 forum ; Story, Eq. PI. § 55 ; 3 Wheat. 324. 
 
 In such case the sovereign submits to the 
 jurisdiction, as to the subject-matter, and 
 must answer on oath ; Mitf. Eq. PI. 30 ; 
 Adams, Eq. 313 ; 6 Beav. 1. 
 
 Attorney- general. Government (in Eng- 
 land, the crown) may sue both in its own 
 behalf, for its own political rights and inter- 
 ests, and in behalf of the rights and interests 
 of those partaking of its prerogatives or 
 claiming its peculiar protection ; Mitf. Eq. PI. 
 421-424 ; Coop. Eq. PI. 21, 101 ; usually by 
 the agency of the attorney-general or solicitor- 
 general; Mitf. Eq. PL 7; Adams, Eq. 312. 
 See Injunction ; Qno Warranto ; 
 Trusts. 
 
 Corporations, like natural persons, may 
 sue; Grant, Corp. 198; although foreign ; id. 
 200 ; but in such case the corporate act must 
 be set forth; 1, Stra. 612; 1 Or. M. & R. 
 296 ; 4 Johns. Ch. 327 ; as it must if they 
 are domestic and created by a private act ; 3 
 Conn. 199 ; 15 Viner, Abr. 198. All the 
 members of a voluntary association must be 
 joined ; 15 111. 251 ; unless too numerous. 
 2 Pet. 566 ; 3 Barb. Ch. 362. 
 
 Idiots and lunatics may sue by their com- 
 mittees; Mitf. Eq. PI. 29; Adams, Eq. 301. 
 As to when a mere petition is sufficient, see 
 7 Johns. Ch. 24 ; 2 Ired. Eq. 294. 
 
 Infants may sue; Mitf. Eq. PI. 25; and, 
 if they be on the wrong side of the suit, may 
 be transferred at any time, on suggestion ; 3 
 Edw. Ch. 32. The bill must be filed by the 
 next friend ; Coop. Eq. PI. 27 ; 1 Sm. Ch. 
 Pr. 54 ; 2 Ala. 406 ; who must not have an 
 
 adverse interest ; 2 Ired. E(j. 478 ; and who 
 may be compelled to give bail ; 1 Paige, Ch 
 178. If the_ infant have a guardian' the 
 court may decide in whose name the suit' shall 
 continue; 12 111. 424. 
 
 A married woman is under partial incapac- 
 ity to sue ;_ 7 Vt. 369. Otherwise, when in 
 such condition as to be considered in law a/eme 
 sole; 2_Hayw._40S. She majr sue on a sepa, 
 rate claim by aid of a next fnend of her own 
 choice ; Story, Eq. PI. § 61 ; Fonbl. Eq. b. 
 1, c. 2, § 6, note p; 1 Freem. 216; bnt 
 see_ 2 Paige, Oh. 454 ; and the defendant maj- 
 insist that she shall sue in this manner- 2 
 Paige, Ch. 255; 4 Rand. 397. ' 
 
 Societies. A certain number of persons 
 belonging to a voluntary society may sue on 
 behalf of themselves and their associates for 
 purposes common to them all ; 2 Pet. 366. 
 
 Defendants. 
 
 Generally, all who are able to sue may he 
 sued in equity. To constitute a person de- 
 fendant, process must be prayed against him: 
 2 Bland, Ch. 106 ; 4 Ired. Eq. 175; 5 Ga. 
 251 ; 1 A. K. Marsh. 594. Those who are 
 under incapacity may be made defendants, 
 but must appear in a peculiar manner. One, 
 or more, interested with the plaintiff, who re- 
 fuse to join may be made defendants ; 2Bland, 
 Ch. 264 ; 3 Des. 31 ; 10 111. 534; 15 id. 
 251. 
 
 Corporations must be sued by their corpo- 
 rate names, unless authorized to come info 
 court in the name of some other person, as 
 president, etc.; Story, Eq. PI. § 70 ; 4 Ired. 
 Eq. 195. Governments cannot, generally, 
 be sued in their own courts ; Story, Eq, PI, 
 § 69 : yet the attorney-general may be made 
 a party to protect its rights when involved ; 1 
 Barb. Ch. 157; and the rule does not prevent 
 suits against officers in their official capacity; 
 
 I Dougl. Mich. 225. 
 
 Idiots and Z«na(tcs may he defendants and 
 defend by committees, usually ajipointed 
 
 fuardians ad litem as of course; Mitf. Eq, 
 '1. 103 ; Story, Eq. PI. § 70 ; Shelf. Lnn, 
 425 ; 6 Paige, Ch. 237. 
 
 A guardian de facto may not have a bill 
 against a lunatic for a balance due him, bnt 
 must proceed by petition ; 2 D. & B. Eq. 
 385 ; 2 Johns Ch. 242 ; 2 Paige, Ch. 422; 8 
 id. 609. 
 
 Infants defend by guardians appointed W 
 the court ; Mitf. Eq. PI. 103 ; 9 Ves. UK 
 
 II id. 563 ; 1 Madd. 290; 8 Pet. 128; H 
 Mass. 16;'2Tayl. 125. 
 
 On becoming of age, an infant is allowed, 
 as of course, to put in a new plea, or to de- 
 mur on showing that it is necessary to protect 
 his rights ; 6 Paige, Ch. 353. 
 
 Married women may be made defendants, 
 and may answer as if femes sole, if the hus- 
 band is plaintiff, an exile, or an alien enemj', 
 has abjured the realm or been transported 
 under criminal sentence; Adams, Eq. 3"; 
 Mitf. Eq. PI. 104. . 
 
 She should be made defendant where Her 
 
PARTIES 
 
 355 
 
 PARTIES 
 
 husband seeks to recover an estate held in 
 trust for her separate use ; 9 Paige, Ch. 225 ; 
 and, generally, where the interests of her 
 husband conflict with hers in the suit, and he 
 is plaintiff ; 3 Barb. Ch. 397. See, also, 11 
 Me. 145 ; Mitf. Eq. PI. 1 04. See, gener- 
 ally, as to who may be defendants. Joinder 
 OP Parties. 
 
 At Law, In actions ex contractu. 
 Plaintiffs. In general, all persons who 
 have a just cause of action may sue, unless 
 some disability be shown; Dicey, Part. 1. 
 An action on a contract, of whatever descrip- 
 tion, must be brought in the name of the 
 party in whom the legal interest is vested ; 1 
 East, 497 ; Yelv. 25, n. 1 ; 1 Lev. 235 ; 3 
 
 B. & P. 147 ; 1 H. Blackst.*4; 5 S. & R. 
 27-, 10 Mass. 230, 287; 15 id. 286; 1 Pet. 
 
 C. C. 109; 2 Root, 119; 2 Wend. 158; 21 
 id. 110; Hempst. 541. 
 
 On simple contracts by the party from 
 whom (in part, at least) the consideration 
 moved ; Browne, Act. 99 ; 1 Stra. 592 ; 2 
 W. & S. 237 ; although the promise was 
 made to another, if for his benefit ; Browne, 
 Act. 103 ; 10 Mass. 287 ; 3 Pick. 83 ; 2 
 Wend. 158 ; 10 id. 87, 156 ; 5 Dana, 45 ; 
 and not by a stranger to the consideration, 
 even though the contract be for his sole bene- 
 fit; Browne, Act. 101. On contracts under 
 seal by parties to the instrument only ; 1 
 Wend. 87 ; Co. Litt. 231. 
 
 Agents contracting in their own name, 
 without disclosing their principals, may, in 
 general, sue in their own names ; 3 B. & Aid. 
 280 ; 5 id. 393 ; 1 Campb. 337 ; 4 B. & C. 
 656 ; 10 id. 672 ; 5 M. & W. 650 ; 5 Penn. 
 41 ; or the principals may sue; 6 Cow. 181 ; 
 3 Hill, N. Y. 72; 2 Ashm. 485 ; Broom, 
 Part. 44. 
 
 So they may sue on contracts made for an 
 unknown principal ; 3 E. L. & E. 391 ; and 
 also when acting under a del credere commis- 
 sion; 4 Maule&S. 566; 6 id. 172; 4 Campb. 
 195 ; 10 Barb. 202 ; but not an ordinary mer- 
 chandise broker. An auctioneer may sue for 
 the price of goods sold; 1 H. Blackst. 81 ; 
 16 Johns. 1 ; but a mere attorney having no 
 beneficial interest may not sue in his own 
 ■name; 10 Johns. 383. 
 
 Alien enemies, unless resident under a 
 license or contracting under specfic license, 
 cannot sue, nor can suit be brought for their 
 benefit; Broom, Part. 84 ; 1 Campb. 482 ; 1 
 Kent, 67; 11 Johns. 418 ; 2 Paine, 639. 
 License is presumed if they are not ordered 
 away; 10 Johns. 69; 6 Binn. 241. See, 
 also, Co. Litt. 129 b ; 15 East, 260 ; 1 Kent, 
 68. 
 
 Alien friends may bring actions concerning 
 personal property ; Browne, Act. 304 ; Ba- 
 con, Abr. Aliens ; for libel published here ; 8 
 Scott, 182 ; and now, in regard to real estate 
 generally, by statute ; 12 Wend. 342 ; see 15 
 Tex. 495 ; and, by common law, till office 
 found, against an intruder; 13 Wend. 546 ; 
 1 Johns. Cas. 399 ; 3 id. 109 ; 3 Hill, N. Y. 
 
 79. But see 5 Cal. 373. As a general rule, 
 an alien may maintain a personal action in the 
 federal courts ; 3 Story, 458 ; 4 McLean, 
 516. 
 
 Assignees of choses in action cannot, at 
 common law, maintain actions in their own 
 names ; Broom, Part. 10 ; 42 Me. 221. Pro- 
 missory notes, bills of exchange, bail-bonds, 
 and replevin-bonds, etc., are exceptions to 
 this rule ; Hamm. Part. 108. 
 
 An assignee of real estate may have an ac- 
 tion in his own name for breaches of a cove- 
 nant running with the land, occurring after 
 assignment ; 3 Bou vier, Inst. 150; Broom, 
 Part. 9 ; 14 Johns. 89 ; and he need not be 
 named in an express covenant of this charac- 
 ter ; Broom, Part. 8. 
 
 An assignee in insolvency or bankruptcy 
 should sue in his own name on a contract 
 made before the act of bankruptcy or the 
 assignment in insolvency ; 1 Cliitty, PI. 14 ; 
 Hamm. Part. 167; Comyns. Dig. Ahatement 
 (E 17) ; 3 Dall. 276 ; 5 S. & R. 394; 7 id. 
 182 ; 9 id. 434. See 3 Salk. 61 ; 3 Term, 779. 
 Otherwise of a suit by a foreign assignee ; 11 
 Johns. 488. The discharge of the insolvent 
 pending suit does not abate it ; 2 Johns. 342 ; 
 11 id. 488. But see 1 Johns. 118. 
 
 An assignee who is to execute trusts may 
 sue in his own name ; 4 Abb. 106. Cestuis 
 que trustent cannot sue at law ; 3 Bouvier, 
 Inst. 135. 
 
 Civil death occurring in case of an outlaw, 
 an attainted felon or one sentenced to im- 
 prisonment for life, incapacitates the person 
 for suing as plaintiff during the continuance 
 of the condition ; Broom, Part. 85. Sentence 
 as above, during suit, abates it; 1 Du. N. Y. 
 664 ; but the right to sue is suspended only ; 
 Broom, Part. 85. 
 
 Corporations may sue in their true corpo- 
 rate name, on contracts made in their behalf 
 by officers or agents ; 2 Blatchf. 343 ; 6 Cal. 
 258 ; 5 Vt. 500 ; 20 Me. 45 ; 3 N. J. 321 ; 
 9 Ind. 359 ; Dicey, Part. 276 ; as, a bank, 
 on a note given to a cashier ; 5 Mo. 26 ; 4 
 How. Pr. 63 ; 21 Pick. 486 See, also, 15 
 Me. 443. 
 
 The name must be that at the time of suit ; 
 3 Ind. 285 ; 4 Rand. 359 ; with an averment 
 of the change, if any, since the making of 
 the contract ; 6 Ala. 327, 494 ; even though 
 a wrong name were used in making the con- 
 tract; 6 S. & R. 16; 10 Mass. 360; 5 
 Ark. 234; 10 N. H. 123; 5 Halst. 323. 
 
 If the corporation be a foreign one, proof 
 of its existence must be given ; 1 C. & P; 
 569; 13 Pet. 519; 2 Gall. 105; 5 Wend. 
 478; 7 id. 539; 10 Mass. 91; 2 Tex. 531; 
 
 1 T. B. Monr. 170 ; 7 id. 584 ; 2 Rand. 465 ; 
 
 2 Green, N. J. 439 ; 1 Mo. 184. 
 
 As to their ability to sue in the United 
 States courts, see 5 Cra. 57. 
 
 Executors and administrators in whom is 
 vested the legal interest are to sue in all per- 
 sonal contracts ; 5 Term, 393 ; Will. Exec. 
 Index; see 15 S. & R. 183; or covenants 
 affecting the realty but not running ■ with the 
 
PARTIES 
 
 S56 
 
 PARTIES 
 
 land; 2 H. Blackst. 310; and on such cove- 
 nants running with the land, for breach during 
 the decedent's lifetime occasioning special 
 damage; 2 Johns. Cas. 17; 4 Johns. 72. 
 They must sue as such, on causes accruing 
 prior to the death of the decedent ; 1 Saund. 
 112; Comyns, Dig. Pleader (2 D 1) ; 3 
 Dougl. 36 ; 2 Swan, 170; and as such, or m 
 their own names, at their election, for those 
 accruing subsequent; 16 Ark. 36 ; 3 Dougl. 
 36 ; Will. Exec. 1590 ; and upon contracts 
 made by them in their official capacity ; 30 
 Ala. 482; 32 Miss. 319; 15 Tex. 44 ; in their 
 own names only, in some states ; 4 Jones, 
 159. 
 
 On death of an executor, his executor, or 
 administrator de bonis non if he die intes- 
 tate, is the legal representative of the origi- 
 nal decedent ; 7 M. & W. 306 ; 2 Swan, 127 ; 
 2 Bla. Com. 506. 
 
 Foreign governments, whether monarchical 
 or republican ; 5 Du. N. Y. 634 ; if recognized 
 by the executive of the forum ; 3 Wheat. 
 824 ; Story, Eq. PI. § 55 ; see 4 Cra. 272 ; 
 2 Wash. C. C. 43 ; 9 Ves. 347 ; 10 id. 354 ; 
 11 id. 283; may sue; 26 Wend. 212; 6 
 HiU, 33. 
 
 Husband must sue alone for wages accru- 
 ing to the wife, for the profits of business car- 
 ried on by her, or moiiey lent by her during 
 coverture; Broom, Part. 71; 2 W. Blackst. 
 1239 ; 4 E. D. Smith, 384 ; and see 1 Salk. 
 114; 2Wils. 424; 9 East, 472; 1 Maule & 
 S. 180; 4 Term, 516; for slanderous words 
 spoken of the wife which are actionable only 
 by reason of special damage ; 2 Du. N. Y. 
 633 ; on a fresh promise, for which the con- 
 sideration was in part some matter moving 
 from him, renewing a contract made with the 
 wife dum sola; 1 Maule & S. 180; and see 
 2 Penn. 827 ; for a legacy accruing to the 
 wife during coverture; 22 Pick. Mass. 480; 
 and as administrator of the wife to recover 
 chattels real and personal not previously re- 
 duced into possession ; Broom, Part. 74. 
 
 He may sue alone for property that be- 
 longed to the wife before coverture ; 1 Murph. 
 41 ; 5 T. B. Monr. 264 ; on a joint bond 
 
 fiven for a debt due to the wife dum sola ; 1 
 laule & S. 180 ; 4 Term, 616 ; 1 Chitty, PI. 
 20 ; on a covenant running to both ; Cro. Jac. 
 399 ; 2 Mod. 217 ; 1 B. & C. 443 ; 1 Bulstr. 
 31 ; to reduce choses in action into posses- 
 sion; 2 Maule & S. 396, n. (b) ; 2 Mod. 
 217; 2 Ad. & E. 30 ; and, after her death, 
 for any thing he became entitled to during 
 coverture ; Co. Litt. 351 a, n. 1, And see 4 
 B. & C. 529. 
 
 Infants may sue only by guardian or pro- 
 chein ami; 3 Bouvier, Inst. 188 ; 13 M. & 
 W. 640 ; Broom, Part. 84 ; 11 How. Pr. 188 ; 
 13 id. 413 ; 13 B. Monr. 193. 
 
 Joint tenants. See Joinder. 
 
 Lunatic, or non compos mentis, may main- 
 tain an action, which should be in his own 
 name ; Broom, Part, 84 ; Browne, Act. 301 ; 
 Hob. 215 ; 8 Barb. 552. His wife may ap- 
 pear, if he have no committee ; 7 Dowl. 22. 
 
 An idiot may by a next friend who petitions 
 for that purpose ; 2 Chitty, Archb. Pr. 909. 
 
 Married women cannot, in general sue 
 alone at common law ; Broom, Part. 74' but 
 a married woman may sue alone where her 
 husband is civilly dead ; see 4 Term 361 • 
 Cro. Eliz. 519 ; 9 East, 472; 2 B. & P. 165! 
 1 Selw. N. P. 286 ; or, in England, where 
 he is an alien out of the country, on her sepa. 
 rate contracts ; 2 Esp. 544 ; 1 B. & P. 357 • 2 
 id. 226 ; 11 East, 301 ; 3 Campb. 123 ; while 
 he is in such condition ; Broom, Part. 8 114. 
 
 So she may sue alone after a sentence of 
 nullity or divorce a vinculo ; 9 B. & C. 698 ; 
 8 Term, 548 ; but not after a divorce mensu 
 et thoro, or voluntary separation merely; S 
 B. & C. 297. 
 
 She may, wiiere he is legally presumed to 
 be dead ; 2 Campb. 113 ; 5 B. & Ad. 94; 2 
 M. & W. 894 ; or where he has been absent 
 from the country for a very long time ; 12 
 Mo. 30 ; 23 E. L. & E. 127. See 11 East, 
 301 ; 2 B. & P. 226. 
 
 When the wife survives the husband, the 
 may sue on all contracts entered into by 
 others with her before coverture, and she may 
 recover all arrears of rent of her real estate 
 which became due during the coverture, on 
 their joint demise ; 8 Taunt. 181 ; 1 EoUe, 
 Abr. 350 d. She is also entitled to all her real 
 property, and her chattels real and choses in 
 action not reduced into possession by the hus- 
 band ; Broom, Part. 76. 
 
 Partners. One cannot, in general, sue 
 another for goods sold ; 9 B. & C. 356 ; for 
 work done ; 1 B- & C. 74 ; 7 id. 419 ; for 
 money had and received in connection with a 
 partnership transaction ; 6 B. & C. 194 ; or 
 for contribution towards a payment made 
 under compulsion of law ; 5 B. & Ad. 936 ; 
 
 1 M. & W. 604. See 1 M. & W. 168; 2 
 Term, 476. But one may sue the other for 
 a final balance struck ; Broom, Part. 57 ; 2 
 Term. 479 ; 5 M. & W. 21 ; 2 Or. & M. 361; 
 see Joinder ; and they may sue the admin- 
 istrator of a deceased partner; 4 Wise. 102. 
 
 Survivors. The survivor or survivors of 
 two or more jointly interested in a contract 
 not running with the land must sue as such ; 
 Broom, Part. 21; Archb. PI. 54; 1 East, 
 497 ; Yelv. 177 ; 1 Dall. 65, 248 ; 4 id. 354; 
 
 2 Johns. Cas. 374 ; 7 Ala. 89. 
 
 The survivor of a partnership must sue 
 alone as such ; 9 B. & C. 538 ; 4 B. & Aid. 
 374; 2 Maule & S. 225. 
 
 The survivor of several, parties to a simple 
 contract, should describe himself as such ; 3 
 Conn. 203. 
 
 lenants in common may sue each other 
 singly for actual ouster ; Woodf . Landl. & T. 
 789. See Joinder. 
 
 Trustees must sue, and not the cest^is que 
 trustent; 1 Lev. 235; 15 Mass. 286; 12 
 Pick. 554 ; 4 Dana, 474. See Joikbbb. 
 
 Defendants. 
 All persons having a direct and immediate 
 legal interest in the subject-inattw of the suit 
 
PARTIES 
 
 857 
 
 PARTIES 
 
 are to be made parties. The proper defen- 
 dants to a suit on a specialty are pointed out 
 by the instrument. 
 
 In case of simple contracts, the person 
 made liable expressly by its terms ; S Bingh. 
 N. <3. 732 ; 8 East, 12 ; or by implication of 
 law, is to be made defendant ; 2 Bla. Com. 
 443; 3 Campb. 356; 1 H. Blackst. 93; 2 
 id. 563. See 6 Mass. 253 ; 11 id. 335 ; 1 
 Chitty, PI. 24. Where there are several per- 
 sons parties, if the liability be joint, all must 
 be joined as defendants, either on specialties ; 
 1 Wms. Saund. 154 ; or simple contracts ; 
 Chitty, Contr. 99. If it be joint and several, 
 all may be joined ; 1 Wms. Saund. 154, n. 
 4 ; or each sued separately ; 1 Wms. Saund. 
 191, ; Comyns, Dig- Obligations (G) ; 3 
 Term, 782 ; 1 Ad. & E. 207 ; if it be seve- 
 ral, each must be sued separately ; 1 East, 
 226. The presumption is, in such case, that 
 a written agreement is joint; 2 Campb. 640 ; 
 3 id. 49, 51, n.; otherwise of verbal con- 
 tracts; 1 Ad. &E. 691 ; 8 B. & Aid. 89; 1 
 Bingh. 201. 
 
 Alien enemies may be sued ; Broom, Part. 
 18-21 ; 1 W. Blackst. 30; Cro. Eliz. 516 ; 4 
 Bingh. 421 ; Comyns, Dig. Abatement (E 3) ; 
 and, of course, alien friends. 
 
 Assignees of a mere personal contract can- 
 not, in general, be sued ; of covenants run- 
 ning with the realty may be, for breach after 
 assignment; 2 Saund. 304, n. 12; Woodf. 
 Landl. & T. 113 ; 1 Fonbl. Eq. 359, n. y ; 3 
 Salk. 4; 7 Term, 312; 1 Dall. 210 ; but not 
 after an assignment by him; Bacon, Abr. 
 Covenant (B 4). See, on this subject, 
 Bouvier, Inst. 162. 
 
 Assignees of bankrupts cannot be sued as 
 such at law; Cowp. 134; Chitty, PI. ,11, u. 
 
 (0- 
 
 Bankrupts after discharge cannot be sued. 
 An insolvent after discharge may be sued on 
 his contracts, but his person is not liable to 
 arrest in a suit on a debt which was due at 
 the date of his discharge ; Dougl. 93 ; 8 
 East, 311 ; 1 Saund. 241, n. 5 ; Ingr. Insolv. 
 377. 
 
 See Conflict op Laws ; Bankruptcy ; 
 Insolvency. 
 
 Corporations must be sued by their true 
 names; 7 Mass. 441; 2 Cow. 778; 15 111. 
 185; 4 Rand. 359; 2 Blatchf. 343. The 
 suit may be brought in the United States 
 courts by a citizen of a foreign state ; 2 How. 
 497. Assumpsit lies against a corporation 
 aggregate on an express or implied promise, 
 in the same manner as against an individual ; 
 3 Halst. 182; 3 S. & R. 117 ; 4 id. 16 ; 12 
 Johns. 231 ; 44 id. 118 ; 7 Cra. 297 ; 2 Bay, 
 109; 10 Mass. 397; 1 Aik. 180; 9 Pet. 541; 
 3 Ball. 496 ; 1 Pick. 215 ; 2 Conn. 260 ; 5 
 Q. B. 547. 
 
 Executors and administrators of a de- 
 ceased contractor or the survivor of several 
 point contractors may be sued; Hamm. 
 Part. 156 ; but not if any of the original con- 
 tractors survive ; 6 S. & R. 272 ; 2 Wheat. 
 344. 
 
 The liability does not commence till pro- 
 bate of the will ; 2 Sneed, 58. The executor 
 or administrator de bonis non of a deceased 
 person is the proper defendant ; Broom, Part. 
 197. 
 
 The liability is limited by the amount of 
 assets, and does not arise on subsequent 
 breach of a covenant which could be per- 
 formed only by the covenantor ; Broom, 
 Part. 118. They, or real representatives, may 
 be parties, at election of the plaintiff, where 
 both are equally liable; 1 Lev. 189, 803. 
 
 Foreign governments cannot be sued to en- 
 force a remedy, but may be made defendants 
 to give an opportunity to appear ; 14 How. Pr. 
 517. A foreign sovereign cannot be sued for 
 any act done by him in the character of a sov- 
 ereign prince; 2 H. L. C. 1 ; 17 Q. B. 171 ; 
 it would appear most probably that he can in 
 no case be made defendant in an action ; 
 Dicey, Part. *5 ; but see 10 Q. B. 656. 
 
 Heirs may be liable to suit under the an- 
 cestor's covenant, if expressly named, to the 
 extent of the assets received ; Broom, Part. 
 118 ; Piatt, Cov. 449. 
 
 Husband may be sued alone for breach of 
 jointcovenaut of himself and wife^; 15 Johns. 
 483 ; 17 How. 609, and must be on a mere 
 personal contract of the wife made during co- 
 verture ; Comyns, Dig. Pleader (2 A 2) ; 3 
 W. Raym. 6 ; 1 Lev. 25 ; 8 Term, 545 ; 2 B. 
 & P. 105 ; 1 Taunt. 217 ; 4 Price, 48 ; 16 
 Johns. 281 ; even if made to procure neces- 
 saries when living apart ; 6 W. & S. 346 ; 
 may be on a new promise for which the con- 
 sideration is a debt due by the wife before 
 marriage; Al. 72; 7 Term, 348; but such 
 promise must be express; Broom, Part. 174; 
 and have some additional considerations, as 
 forbearance, etc. ; 1 Show. 183 ; 11 Ad. & 
 E. 438, 451 ; on lease to both made during 
 coverture ; Comyns, Dig. Baron §• F. (2 B); 
 on lease to wife dum sola, for rent accruing 
 during coverture, or to wife as executrix ; 
 Broom, Part. 178; Comyns, Dig. Baron If F. 
 (T) ; 1 RoUe, Abr. 149 ; not on wife's con- 
 tracts dum sola after her death ; 3 Mod. 186; 
 Rep. temp. Talb. 173 ; 3 P. Wms. 410 ; ex- 
 cept as administrator ; 7 Term, 350 ; Cro. 
 Jac. 257 ; 1 Campb. 189, n. 
 
 He is liable, after the death qf the wife, in 
 cases where he might have been sued alone 
 during her lifetime. 
 
 Idiots, lunatics, and non compotes mentis, 
 generally, may be sued on contracts for nec- 
 essaries ; 2 M. & W. 2. See Appearance. 
 
 Infants may be sued on their contracts for 
 necessaries; 10 M. & W. 195; Macph. Inf. 
 447. Ratification in due form ; 11 Ad. & E. 
 934 ; after arriving at fuU age, renders them 
 liable to suit on contracts made before. 
 
 Partner is not liable to suit by his co-part- 
 ners. A sole ostensible partner, the others 
 being dormant, may be sued alone by one 
 contracting with him; Broom, Part. 172. 
 
 Survivor of two or more joint contractors 
 must be sued alone; 1 Saund. 291, n. 2; 2 
 Burr. 1196. A sole surviving partner may be 
 
PARTIES 
 
 358 
 
 PARTIES 
 
 sued alone ; CHtty, PI. 152, note d; 1 B. & 
 Aid. 29. 
 
 In actions ex delicto. 
 Plaintiffs. 
 The plaintiflf must have a legal right in the 
 property affected, whether real ; 2 Term, 
 684 ; 7 id. 60 ; Broom, Part. 202 ; Co. Litt. 
 240 6; 2 Bla. Com. 185; or personal; 11 
 Cush. 55 ;' though a mere possession is suffi- 
 cient for trespass, and trespass quare clausum ; 
 Cro. Jac. 122 ; 11 East, 65 ; 4 B. & C. 591 ; 
 2 Bingh. N. c. 98 ; 1 Ad. & E. 44 ; and the 
 possession may be constructive in case of tres- 
 pass for injury to personal property ; 1 Term, 
 450 ; 6 Q. B. 606 ; 6 B. & Aid. 603 ; 1 Hill, 
 N. Y. 311. The property of the plaintifi' 
 maybe absolute; 3 Campb. 187; 5 Bingh. 
 305; 1 Taunt. 190; 1 C.B. 672; or special. 
 See 7 Term, 9 ; 4 B. & C. 941 ; 3 Scott, N. 
 8. 358. 
 
 Agents who have a qualified property in 
 goods may maintain an action of tort in their 
 own names for injury to the goods. 
 
 A principal may sue in the name of his 
 agent for a false representation to the agent ; 
 12 Wend. 176. 
 
 Assignees of property may sue in their own 
 names for tortious injuries committed after 
 the assignment ; 4 Bingh. 106 ; 3 Maule & S. 
 7 ; 5 id. 105 ; 1 Ad. & E. 580 ; although it 
 has never been in their possession ; 9 Wend. 
 80; 2N.Y. 293; 1 E.I). Smith, 622 ; 8 B. 
 & C. 270; 6 B. & Aid. 604; Wms. Saund. 
 252 a, n. (7). 
 
 Otherwise of the assignee of a mere right 
 of action; 12 N. Y. 322; 18 Barb. 500; 7 
 How. 492. See 15 N. Y. 432. Assignees in 
 insolvency may sue for torts to the property ; 
 6 Binii. 186 ; 8 S. & R. 124 ; but not to the 
 person of the assignee; W. Jones, 215. 
 
 Executors and administrators cannot, in 
 general, sue in actions ex delicto, as such ac- 
 tions are said to die with the plaintiff; Broom, 
 Part. 212 ; 13 N. Y. 322. See Peesonal 
 Action. They may sue in their own names 
 for torts subsequent to the death of the de- 
 ceased; 11 Rich. 363. 
 
 Heirs and devisors have no claim for torts 
 committed during the lifetime of the ancestor 
 or devisor ; 2 Inst. 305. 
 
 Husband must sue alone for all injuries to 
 his own property and person ; 3 Bla. Com. 
 143; 2 Ld. Raym. 1208; Cro. Jac. 473; 1 
 Lev. 3 ; 2 id. 20 ; including personalty of the 
 wife which becomes his upon marriage ; 1 
 Salk. 141; 6 Call, 55; 13 N. H. 283; Cro. 
 Eliz. 133; 6 Ad. _& E. 259; 27 Vt. 17; 
 Hempst. 64; and including the continuance 
 of injuries to such property commenced before 
 marriage ; 1 Salk. 141 ; 6 Call, 55 ; 1 Selw. 
 N. P. 656 ; in replevin for timber cut on land 
 belonging to both ; 8 Watts, 412 ; for personal 
 injuries to the wife for the damages which he 
 sustains ; 3 Bla. Com. 140 ; Chitty, PI. 718, 
 n.; 4 B. & Aid. 523; 4 Iowa, 420; as in 
 battery; 2 Ld. Raym. 1208; 8 Mod. 342; 
 2 Brev. 170; slander, where words are not 
 
 actionable per se; 1 Lev. 140 ; 3 Mod. 120' 
 4 B. & Ad. 514 ; 22 Barb. 396 ; 2 Hill, n! 
 Y. 309 ; or for special damages ; 4 B. & Ad" 
 514. 
 
 He may sue alone, also, for injuries to per. 
 sonalty commenced before marriage and con. 
 summated afterwards; 2 Lev. 107; Yentr 
 260 ; 2 B. & P. 407 ; and the right survives 
 to him after death of the wife in all cases 
 where he can sue alone ; 1 Chitty, PI. 75 ■ 
 Viner, Abr. Baron §• F. (G) ; for cutting 
 trees on land held by both in right of the 
 wi/e; 16 Pick. 235; 1 Rop. Hush. & W. 
 215 ; and generally, for injury to realestateof 
 the wife during coverture ; 18 Pick. 110 ; 20 
 Conn. 296 : 2 Wils. 414 ; although her in- 
 terests be reversionary only ; 5 M. & W. 
 Exch. 142. 
 
 Infants may sue by guardian for torts; 
 Broom, Part. 238. 
 
 Lessors and reversioners, generally, may 
 have an action for injury to their reversions; 
 Broom, Part. 214. Damage necessarily to 
 the reversion must be alleged and shoTjn; 1 
 Maule & S. 234 ; 11 Ad. & E. 40 ; 5 Bingh. 
 153; 10 B. &C. 145. 
 
 Lessees and tenants, generally, may sue 
 for injuries to their possession ; 4 Burr. 2141 ; 
 3 Lev. 209; Selw. N. P. 1417; Woodf. 
 Landl. & T. 661. 
 
 Married woman must sue alone for injury 
 to her separate property ; 29 Barb. 512 ; es- 
 pecially after her husband's death ; 87 N. H. 
 355. 
 
 The restrictions on her power to sue are 
 the same as in actions ex contractu; Broom, 
 Part. 233. Actions in which she might or 
 must have joined her husband survive to her. 
 RoUe, Abr. 349 (A). 
 
 Master has an action in tort for enticing 
 away an apprentice; 3 Bla. Com. 342; 3 
 Burr. 1345 ; 3 Maule & S. 191 ; and, upon 
 the same principle, a parent for a child ; 1 
 Halst. 322 ; 4 B. & C. 660 ; 4 Litt. 25; 
 and for personal injury to his servant, for 
 loss of time, expenses, etc. ; 3 Bla. Com. 
 342. 
 
 For seduction or debauchery, a master; 
 Broom, Part. 227; 4 Cow. 422; and if any 
 service be shown, a parent ; 2 M. & W. 642; 
 6 id. 56 ; 2 Term, 166 ; has his action. 
 
 Survivor, whether sole or several, must sue 
 for a tortious injury, the rule being that the 
 remedy, and not the right, survives; Broom, 
 Part. 212; 1 Show. 188; 2 Maule & S. 226. 
 
 Tenants in common must sue strangers 
 separately to recover land; 15 Johns. 479; 
 1 Wend. 380. 
 
 A tenant in common may sue his co-tenant, 
 where there has been actual ouster, in eject- 
 ment; Littleton, §322; 1 Campb. 173; n 
 East, 49; Cowp. 217; or trespass qwre 
 clausum; 7 Penn. 397; and *»■«??"'' if' 
 mesne profits after recovery; 3 Wus. W- 
 118. Where there is a total destruction or 
 comversion of the property, one tenant m 
 common mav sue his co-tehaat in trespass; 
 Co. Litt. 206 a, J ; Cro. Eliz. 157 ; 8 B. s 
 
PARTIES 
 
 S59 
 
 PARTITION 
 
 C 257; or in trover; Selw. N. P. 1366; 1 
 Term, 658 ; 2 Ga. 73 ; 2 Johns. 468 ; 3 id. 
 175; 9 Wend. 338 ; 21 id. 72; 6 Ired. 388. 
 For a misfeasance, waste, or case in the na- 
 ture of waste, may be brought. 
 
 Defendants. 
 
 The party committing the tortious act or 
 asserting the adverse title is to be made de- 
 fendant : as, the wrongful occupant of land, 
 in ejectment; 7 Term, 327 ; 1 B. & P. 573 ; 
 the party converting, in trover ; Broom, Part. 
 246 ; making fraudulent representations ; 3 
 Term, 56 ; 5 Bingh. N. c. 97 ; 3 M. & W. 
 632 ; 4 id. 337. The act may, however, have 
 been done by the defendant's agent ; 2 M. & 
 W. 650; his mischievous animal; 12 Q. B. 
 29 ; or by the plaintiff himself, if acting with 
 due care and suffering from the defendant's 
 negligence ; 1 Q. B. 29 ; 1 Ld. Raym. 738 ; 
 10111. 425. 
 
 Agents ani principals ; Story, Ag. § 625 ; 
 Paley, Ag. 294 ; are both liable for tortious 
 act or negligence of the agent under the direc- 
 tion; 1 Sharsw. Bla. Com. 431, n.; or in the 
 regular course of employment, of the princi- 
 pal ; 10 111. 425 ; 1 Mete. Mass. 550. See 
 2 Denio, 115; 6 id. 639. As to the agent of 
 a corporation acting erroneously without 
 malice, see 1 East, 555. 
 
 Subsequent ratification is equivalent to 
 prior authority ; Broom, Part. 259. 
 
 Agents are liable to their principals for con- 
 version; 14 Johns. 128; 8 Penn. 442. 
 
 Assignees are liable only for torts com- 
 mitted by them : as, where one takes property 
 from another who has possession unlawfully ; 
 Bacon, Abr. Actions (B.) ; or continues a 
 nuisance ; 2 Salk. 460 ; 1 B. & P. 409. 
 
 Bankrupts ,- 3 B. & Aid. 408 ; 2 Denio, 
 73 ; and insolvents ; Broom, Part. 284 ; 2 
 Chitty, Bail. 222 ; 2 B. & Aid. 407 ; 9 
 Johns. 161; 10 id. 289; 14 id. 128; are 
 liable even after a discharge, for torts com- 
 mitted previously. 
 
 Corporations are liable for torts committed 
 by their agents ; 7 Cow. 485 ; 2 "Wend. 452 ; 
 17 Mass. 503 ; 4 S. & R. 16 ; 9 id. 94 ; 2 
 Ark. 255 ; 4 Ohio, 500 ; 4 Wash. C. C. 106 ; 
 5 Ind. 252 ; but not, it seems, at common 
 law, in replevin ; Kyd, Corp. 205 ; or tres- 
 pass quare clausum; 9 Ohio, 31. 
 
 Death of a tort-feasor, at common law, 
 takes away all cause of action for torts dis- 
 connected with contract ; 5 Term, 651 ; 1 
 Saund. 291 e. But actions against the per- 
 sonal representatives are provided for by sta- 
 tute in most of the states, and in England by 
 Stat. 3 & 4 Will. IV. c. 42, § 2. 
 
 Executors and administrators, at common 
 law, are liable for the continuance of torts 
 first committed by the deceased ; W. Jones, 
 173 ; 5 Dana, 34 ; see 28 Ala. N. 8. 360 ; 
 but such continuance must be laid to be, as it 
 really is, the act of the executor ; 1 Cowp. 
 373 ; Will. Exec. 1358 ; 13 Penn. 64 ; 1 
 Harr.Mich. 7. 
 . Husland must be sued alone for his torts, 
 
 and in detinue for goods delivered to himself 
 and wife ; 2 Bulstr. 308; 1 Leon. 312. 
 
 He may be sued alone for a conversion by 
 the wife during coverture ; 2 Rop. Husb. & 
 W. 127. 
 
 Idiots and lunatics are liable, civilly, for 
 torts committed ; Hob. 134 ; Bacon, Abr. 
 Trespass (G) ; though they may be capable 
 of design; Broom, Part. 281. But if the 
 lunatic is under control of chancery, pro- 
 ceedings must be in that court, or it will con- 
 stitute a contempt ; 3 Paige, Ch. 199. 
 
 Infants may be sued in actions ex delicto, 
 whether founded on positive wrongs or con- 
 structive torts ; Broom, Part. 280 ; Co. Litt. 
 180 6, n. 4 ; as, in detinue for goods deliv- 
 ered for a specific purpose ; 4 B. & P. 140 ; 
 for tortiously converting or fraudulently ob- 
 taining goods ; 3 Pick. 492 ; 5 Hill, N. Y. 
 391; 4 M'Cord, 387; for uttering slander; 
 8 Term, 337 ; but only if the act be wholly 
 tortious and disconnected from contract ; 8 
 Term, 35 ; 6 Watts, 1 ; 6 Cra. 226. 
 
 Lessor and lessee are respectively liable for 
 their part of the tort in case of a wrong com- 
 menced by one and continued by the other : 
 as, for example, a nuisance ; 2 Salk. 460 ; 
 Broom, Part. 253 ; Woodf. Landl. & T. 671. 
 
 Master is liable for a negligent tortious act 
 or default of his servant while acting within 
 the scope of his employment; 6 Cow. 189; 
 1 Pick. 465 ; 2 Gray, 181 ; 23 N. H. 157 ; 
 16 Me. 241; 5 Rich. 44; 18 Mo. 362; al- 
 though not in his immediate employ ; 5 B. & 
 C. 554; 8 Ad. & E. 109 ; see 3 Gray, 349 ; 
 for the direct effect of such negligence ; 17 
 Mass. 132 ; but not to one servant for the 
 neglect of another engaged in the same gene- 
 ral business ; 36 Eng. L. & Eq. 486 ; 3 Gush. 
 270; 23 Penn. 384; 15 Barb. 574 ; 6 Ind. 
 205 ; 22 Ala. N. s. 294 ; 23 Me. 269 ; 4 
 Sneed, 36 ; see 5 Da. N. T. 39 ; 37 E. L. & 
 E. 281 ; if the servant injured be not unne- 
 cessarily exposed ; 28 Vt. 59 ; 6 Cal. 209 ; 
 4 Sneed, 36. 
 
 And the servant is also liable ; 1 Sharsw. 
 Bla. Com. 431, n. For wilful acts ; 9 C. & 
 P. 607 ; 3 Barb. 42 ; for those not commit- 
 ted while in the master's service ; 26 Penn. 
 482 ; or not within the scope of his em- 
 ployment, he alone is liable. 
 
 Partners may be sued separately for acts 
 of the firm, its agents or servants ; 4 Gill, 
 406 ; 1 C. & M. 93 ; 17 Mass. 182 ; 1 Mete. 
 Mass. 560; 11 Wend. 571; 18 id. 175. 
 
 PARTITION. The division which is 
 made between several persons of lands, tene- 
 ments, or hereditaments, or of goods and chat- 
 tels which belong to them as co-proprietors. 
 The term is more technically applied to the 
 division of real estate made between co-par- 
 ceners, tenants in common, or joint tenants. 
 
 Voluntary partition is that made by the 
 owners by mutual consent. It is effected by 
 mutual conveyances or releases to each person 
 of th^share which heis tohold, executed by the 
 other owners. Cruise, Dig. tit. 32, c. 6, § 14. 
 
 Compulsory partition is that which takes 
 
PARTNERS 
 
 360 
 
 PARTNERS 
 
 place without regard to the wishes of one or 
 more of the owners. 
 
 At common law the right of compulsory- 
 partition existed only in cases of co-parcenary; 
 Litt. §264. By statutes of 31 Henry VIII. c. 
 1 and 32 id. c. 2, the right was extended to 
 joint tenants and tenants in common. These 
 statutes have been generally re-enacted or 
 adopted in the United States, and usually with 
 increased facilities for partition ; 4 Kent, 362, 
 etc. ; Co. Litt. 175 a/ 2 Bla. Com. 185, note 
 c; 16 Vin. Abr. 217; AUnatt, Part. Parti- 
 tion at common law is effected by a judgment 
 of the court and delivering up possession in 
 pursuance of it, which concludes all the par- 
 ties to it. In England the writ of partition 
 has been abolished by stat. 3 & 4 Wm. IV. c. 
 27, § 36. 
 
 Courts of equity also exercise jurisdiction 
 in cases of partition where no adequate rem- 
 edy could be had at law, as where the titles to 
 the estates in question are such as are cogniz- 
 able only in equity or where it is necessary to 
 award owelty of partition. This jurisdiction 
 was first settled in Elizabeth's time, and has 
 increased largely on account of the peculiar 
 advantages of the chancery proceeding ; 1 
 Spenee, Eq. 654. Nor have the increased 
 facilities grafted by statute upon the common 
 law proceeding ousted the jurisdiction ; 1 
 Story, Eq. § 646, et seq. ; 1 Ponbl. Eq. book 
 1, c. 1, § 3, note (b). 
 
 Partition in equity is effected by first as- 
 certaining the rights of the several parties in- 
 terested ; and then issuing a commission to 
 make the partition required ; and finally on 
 return of the commissioners and confirmation 
 thereof by decreeing mutual conveyances be- 
 tween the parties ; Mitf. Eq. PI. 120 ; 2 Sc. 
 & L. 371. For an abstract of the laws of 
 the several states on this subject, see 1 Hill. 
 R. P. c. 55. 
 
 PARTNERS. Members of a partnership. 
 
 Ostensible partners are those whose names 
 appear to the world as partners, and who in 
 reality are such. 
 
 Nominal partners are those who are held 
 out as partners but who have no interest in 
 the firm or business. 
 
 Dormant partners are those whose names 
 and transactions as partners are professedly 
 concealed from the world. 
 
 Special partners are those whose liabilities 
 are limited by statute to the amount of their 
 respective contributions. Ordinarily a special 
 partner is associated with at least one general 
 partner by whom the business is managed, but 
 in the "partnerships limited" organized 
 under recent statutes, all the parties have a 
 limited liability. 
 
 Who may he. 
 
 General rule. Persons who have the legal 
 capacity to make other contracts may enter 
 into that of partnership; Lind. Part. *77 ; 1 
 Col. Part. § 11. 
 
 Aliens. An alien friend may be a partner ; 
 Lind. Part. *78 ; Co. Litt. 129 b. An alien 
 
 enemy cannot enter into any commercial con 
 tract; 1 Kent, *66-69 ; 8 Term, 548- ic 
 Johns. 438 ; 7 Pet. 586. ' 
 
 Corporations. There is no general pnnci- 
 pie of law which prevents a corporation from 
 being a partner with another corporation or 
 with ordinary individuals, except the princi. 
 pie that a corporation cannot lawfully employ 
 its funds for purposes not authorized by i^ 
 constitution ; Lind. Part. *86 ; 46 Conn. 136' 
 Grant, Corp. 6 ; 5 Gray, 58. ' 
 
 Firms. Two firms may he partners in one 
 joint firm; 1 Ab. Pr. 243; 1 Fed. Rep. 800. 
 _ Infants. An infant may contract the rela- 
 tion of partner, ashemaymakeany trading con- 
 tract which is likely to prove for his advantage' 
 17 Gratt. 503 ; 8 Taunt. 35 ; 5 B. & Aid. W. 
 Such a contract made by a person during in- 
 fancy is voidable and may be aflimied or dis. 
 affirmed by him at majority ; Story, Part. § 
 
 7 ; 42 Mich. 134 ; but whether he may dis- 
 affirm before majority is doubtful ; 31 Mich, 
 182 ; Ewell's Lead. Cas. 92, 96 ; Lind. Part. 
 *80n.,and*83 ; unless he gives notice of disaf- 
 firmance, or in some manner repudiates this con- 
 tract within a reasonable time after becoming 
 of age, he will be presumed to have ratified it ; 
 
 8 Taunt. 35 ; Story, Part. § 7 ; 9 Vt. 368 ; 
 and his liability relates back to firm contracts 
 made during his minority ; 2 Hill, S. C. 479; 
 21 Mich. 304. As to what amounts to a rati- 
 fication, see 2 Hill, S. C. 479 ; 123 Mass. 88. 
 The person with whom the minor contracts 17111 
 be bound by all the consequences; 2 Stra. 987; 
 2 Maule & S. 206 ; 1 Watts, 412 ; 3 Green, 
 N. J. 343. 
 
 Lunatics. A lunatic is probably not abso- 
 lutely incapable of being a partner ; Lind. Part. 
 *84 ; since the insanity of a partner does not 
 per se dissolve the firm, but simply amounts 
 to a sufficient cause for a court of equity to de- 
 cree a dissolution ; 1 Cox, Ch. 107 ; 2 M. & K. 
 125; 15 Johns. 57. Whether a contract by a 
 lunatic to become a partner can in all cases be 
 avoided by him, is, perhaps, unsettled ; Story, 
 Part. § 7, n. 1. 
 
 Married women. Married women, at 
 common law, are incapable of becoming 
 partners, since they are generally unable 
 to contract or engage in trade; Story, 
 Part. 8 10 ; 3 De G. M. & G. *18; Lind. 
 Part. *84. But where a married woman is 
 authorized by custom, statute, or otherwise (e. 
 g. because her husband is an alien, or on ac- 
 count of a divorce a mensa et thoro) to trade 
 as a feme sole, she may probably be a partner; 
 52 Miss. 402 ; Story, Part. § 10 ; Pars. Part. 
 25. The mere consent of her husband to her 
 trading as a feme sole does not necessarily 
 permit her to become a partner ; Story, Part. 
 § 12. In some states a married woman may 
 be a partner as to her separate estate ; M 
 Penn. 448. In 10 Paige, Ch. 82, it washeld 
 that a married woman, by acting as partner 
 and contitiuing the business after her m- 
 band's death, created a partnership from the 
 beginning. , 
 
 Number of personi. Generally speat- 
 
PARTNERS 
 
 861 
 
 PARTNERS 
 
 ing, the common law imposes no restnc- 
 tion as to the number of persons who may 
 carry on trade as partners ; 1 Col. Part. § 10; 
 27 Ind. 399. But a parnership cannot con- 
 sist of but one person ; 46 Mich. 449. 
 
 Who are partners. 
 
 See Partnership ; 15 Am. L. Rev. 785. 
 Powers of partners. 
 
 General rule. It has been customary to 
 derive the authority of a partner from an as- 
 sumed relation of mutual agency between the 
 members of the firm, and it is true that the 
 firm is responsible for whatever is done by 
 any of the partners while acting for it within 
 the limits of the authority conferred by the 
 nature of the business carried on; 6 Bing. 
 792 ; 8 H. L. C. 268 ; Lind. Part. *236 ; 
 Poth. Part. c. 5, n. 90 ; 4 Exch. 623 ; 36 
 Penn. 498 ; 58 Mo. 532 ; 45 Miss. 499 ; 59 
 Ala. 386. It is perhaps more accurate to 
 trace a partner's power to his standing as a 
 co-principal, and to consider his agency an 
 incident of this relation ; 5 Ch. Div. 458 ; L. 
 K. 7 Ex. 218. Whatever the source of a 
 partner's power, it is as a rule limited to acts 
 incident to carrying on, in the usual way, the 
 particular business in which the firm is en- 
 gaged, and each partner has the power to 
 manage the ordinary business of the firm, and, 
 consequently, to bind his co-partners, whether 
 they be ostensible, dormant, actual, or nomi- 
 nal; 7 East, 210 ; 2 B. & Aid. 673; 1 Cr. & 
 J. 316 ; by whatever he may do, in the course 
 of such management, as entirely as to bind 
 himself. But the acts of a partner wholly 
 unconnected with the business of the partner- 
 ship do not bind the firm ; 4 Exch. 623 ; 2 
 B. & Aid. 678 ; 8 Me. 820 ; 15 Pick. 290 ; 3 
 Johns. Ch. 23 ; Story, Part. § 112-113 and n. 
 
 In special cases. 
 
 Accounts. One partner can bind his firm 
 by rendering an account relating to a partner- 
 ship transaction ; 8 CI. & F. 121 ; Lind. Part, 
 *264. 
 
 Actions, One partner can bring an action 
 on firm account in his own and his co-partners' 
 names without their consent, but they are en- 
 titled to indemnity if he sues against' their 
 will; Lind. Part. *473 ; 2 Cr. & M. 318; 
 67 Mo. 568. This power of a partner sur- 
 vives the dissolution of the firm ; 1 E. Dc 
 Sm. 423. One partner cannot, as a rule, sue 
 in his own name for a firm debt ; the suit 
 must be in the names of all; Penn. N. J. 711 
 
 Appearance, entering an. In an action 
 against partners, one may enter an appear- 
 ance for the rest, or authorize an attorney to 
 do so; 7 Term, 207; 17 Vt. 531; 4 Kan. 
 240. But not after dissolution of the firm ; 2 
 McCord, 311. Nor can one partner bind his 
 co-partners personally and individually by en- 
 tering an appearance for them when they are 
 not within the jurisdiction, nor served with 
 process; 9 Cush. 890; 11 How. 166. 
 
 Arbitration. As a general rule one part- 
 
 ner cannot bind the firm by submitting any of 
 its afi'airs to arbitration, whether by deed or 
 parol ; 3 Kent, 49 ; 3 Bingh. 101 ; 1 Cr. M. 
 & R. 681 ; 3 C. Se B. 742 ; 35 Mich. 5 ; 40 
 Vt. 460; 19 Johns. 137; 1 Pet. 221. The 
 reason given being that such a power is un- 
 necessary for carrying on the business in the 
 ordinary way ; Lind. Part. •266. 
 
 This rule has not been universally adopted, 
 and in Pennsylvania, Kentucky, and Illinois 
 one partner may bind the firm by submission 
 to arbitration, by an agreement not under 
 seal ; 89 Penn. 453 ; 3 T. B. Monr. 435 ; 25 
 111. 48 ; and see Wright, Ohio, 420. 
 
 Assignments. The right of a partner to 
 dispose of the property of the firm extends 
 to the assignment of at least a portion of it 
 as security for antecedent debts, as well as for 
 debts thereafter to be contracted on account 
 of the firm ; Story, Part. § 101 ; 5 Cra. 289 ; 
 58 Mo. 532 ; 17 Vt. 394. The assignment 
 may be for the benefit of one or of several 
 creditors ; 4 Day, 428 ; 6 Pick. 360 ; 5 Watts, 
 22. Although the authorities differ, the better 
 opinion seems to be that one partner cannot, 
 without the knowledge or consent of his co- 
 partners, assign all the property of the firm 
 to a trustee for the benefit of creditors ; 13 
 Minn. 43 ; 84 Mo. 329 ; 50 Ala. 251 ; 29 Ohio 
 St. 441; 32 Wise. 444; 17 Vt. 390; Lind. 
 Part. *266 n. 
 
 Bills of exchange and promissory notes. 
 A partner may draw, accept, and indorse bills 
 and notes in the name, and for the use of the 
 firm, for purposes within the scope of the 
 partnership business; Story, Part. § 102; 7 
 Term, 210; 20 Miss. 226; 119 Mass. 215; 78 
 111. 234. A restriction of this power by agree- 
 ment between the partners does not afiect 
 third persons unless they have notice of it ; 
 27 La. An. 352 ; 44 Miss. 283. This power 
 cannot be exercised after dissolution of the 
 firm; 42 Mich. 110; 51 Cal. 531; unless 
 such dissolution be without proper notice ; 180 
 Mass. 591. A bill or note made by one part- 
 ner in the name of the firm is prima facie 
 evidence that it was executed for partnership 
 purposes; 81 Mich. 373; 34 Penn. 344; 16 
 Wend. 505 ; 44 Miss. 283. 
 
 A partner has no implied authority to in- 
 dorse a note made payable to a co-partner, 
 although for firm account ; 64 Ga. 221 ; nor 
 to bind the firm as a party to a bill or note 
 for the accommodation of or as a mere surety 
 for another; 2 Cush. 300; 19 Johns. 154; 5 
 Conn. 574; 21 Miss. 122; 31 Me. 452; 8 
 Humph. 697 ; unless by special authority im- 
 plied from the nature of the business or pre- 
 vious course of dealing ; 3 Kent, 46 ; 3 Humph. 
 697; 4 Hill, N. Y. 261; and the burden is on the 
 holder of the instrument to show such author 
 ity; 19 Johns. 154; 2 Cush. 314, 315; 2 
 Penn. 177; 21 Miss. 122; 22 Me. 188, 189. 
 Direct or positive proof is not necessary ; the 
 authority or ratification may be inferred from 
 circumstances; 2 Cush. 309; 22 Me. 188, 
 189; 14 Wend. 133; 2 Litt. 41; 10 Vt. 
 268. 
 
PARTNERS 
 
 862 
 
 PARTNERS 
 
 Borrowing money. One partner may bor- 
 row money on the credit of the firm, when it 
 is necessary for the transaction of the partner- 
 ship business in the ordinary way; Lind. 
 Part. *269; 8 Ves. 540; 115 Mass. 388; 62 
 Penn. 393 ; 75 111. 629 ; 61 Ala. 143. 
 
 Checks. One partner has the implied pow- 
 er to bind the firm by cheeks drawn on its 
 bankers in the partnership name ; 3 C. B. N. 
 S. 442; Pars. Part. §§ 102-102 a. Such 
 checks must not be post-dated ; L. R. 6 Q. 
 B. 209. 
 
 Compromise. A partner may compromise 
 with the debtors or creditors of the firm ; 
 Story, Part. § 115 ; 30 Conn. 1 ; 7 Gill, 49 ; 
 and see 10 Conn. 269. 
 
 Confession of judgment. One partner can- 
 not, by confessing a voluntary judgment 
 against the firm, bind his co-partners, unless 
 actually brought into court by service of pro- 
 cess against him and his co-partners. But a 
 judgment so confessed will bind the partner 
 who confessed it ; 3 C. B. 742; Lind. Part. 
 *474, notes ; 36 Penn. 458 ; 13 Iowa, 496 ; 32 
 Vt. 709 ; 30 La. An. 692 ; but see 13 Ab. 
 PI. 192 ; 22 How. 209 ; and 32 La. An. 607 ; 
 where it was held that a " commercial part> 
 ner" has a right to confess judgment on behalf 
 of the firm. 
 
 Contracts. A partner has the power to 
 bind the firm by simple contracts within the 
 scope of the partnership business ; 15 Mass. 
 75 ; 5 Pet. 529 ; Lind. Part. *275 n. 
 
 It has been held, however, that a partner, 
 without authority express or implied from cir- 
 cumstances, cannot bind the firm by a contract 
 to convey the partnership real estate unless 
 the contract is subsequently ratified ; 5 Hill, 
 N. Y. 107. 
 
 Debts. One partner may receive debts due 
 the firm, and payment to him by the debtor 
 extinguishes -the claim ; 12 Mod. 446 ; 1 
 Wash. Va. 77 ; 2 Blackf. 371 ; 14 La. An. 
 681; 4 Binn. 375; even after dissolution; 
 15 Ves. 198. A partner may also bind the 
 firm by assenting to the transfer of a debt due 
 to it, as the transfer ofthe firm's account from 
 one banker to another; 2 H. & N. 326. But 
 a partner cannot employ the partnership 
 funds to pay his own pre-existing debt, with- 
 out the express or implied consent of his co- 
 partners; 18 Conn. 294; 12 Pet. 221 ; Lind. 
 Part. *277 n. (2); 31 Ala. 532; 28 Ohio 
 St. 55 ; 94 Penn. 31. 
 
 Deeds. One partner has no implied author- 
 ity to bind his co-partners by a deed, even for 
 a debt or obligation contracted in the ordinary 
 .course of commercial dealings within the 
 scope of the partnership business ; Story, 
 Part. §117; 7 Term, 207; 3 Kent, 47; H 
 Ohio St. 223 ; 26 Vt. 154. Such an instru- 
 ment binds the maker only; 62 Penn. 393; 
 7 Ohio St. 463. But a deed made by one part- 
 ner in the name and for the use of the firm 
 will bind the others if they assent to it, or 
 subsequently adopt it ; and this consent or 
 adoption may be by parol ; 26 Vt. 154; 11 
 Pick. 400. One partner may convey by deed 
 
 property of the firm which he might have 
 conveyed without deed. The seal m auch a 
 case would be surplusage ; 2 Ohio St. 478 • s 
 Hill, N. Y. 107 ; .7 Mete. 244 ; 8 Leigh 4l's- 
 Lind. Part. 279 n. "e > i 
 
 Distress. Where a lease has been granted 
 by the firm, any partner may distrain or ap- 
 point a bailifi' to do so ; 4 Bing. 562, and cases 
 there cited. 
 
 Firm property. Each partner has the 
 power, to dispose of the entire right of his co. 
 partners in the partnership efifects, for the pur- 
 poses of the partnership business and in the 
 name of the firm ; Story, Part. § 9. This 
 power is held not to extend to real estate, 
 which a single partner cannot transfer without 
 special authority ; Story, Part. § 101 ; 1 
 Brock. 456 ; 3 McLean, 27. Since the power 
 to transfer the. firm property must be exer- 
 cised for the ordinary purposes ofthe partner, 
 ship business, itis held that a partner" 8,employ. 
 ment of firm capital in a new partnership, 
 which he forms for his firm with third persons, 
 charges him for a conversion of the fiind to 
 his own use ; 25 Ohio St. 180. 
 
 Guarantees.. A partner derives no autho- 
 rity from the mere relation of partnership to 
 bind the firm as guarantor of the debt of 
 another ; 5 Q. B. 833 ; 4 Exch. 623 ; Lind. 
 Part. *281 ; 31 Me. 454 ; 21 Miss. 122 ; 35 
 Penn. 517. If the contract of guaranty is 
 strictly within the scope of the firm business, 
 one partner may bind the firm by it; 41 
 Iowa, 518. 
 
 Insurance. One partner may effect an 
 insurance of the partnership goods ; 4 Camp. 
 66 ; 1 M. «E G. 130. The assignment of a 
 partner's interest in the firm stock without 
 the insurer's consent, does not violate a policy 
 of insurance upon it; 27 Ohio St. 1. 
 
 Leases. Inasmuch as a lease is under mi 
 the rule is that a partner has no power to con- 
 tract on behalf of the firm for a lease of a 
 building for partnership purposes; Lind. 
 Part. *284 ; 22 Beav. 606. But it is held 
 that a partner may bind the firm for the rent 
 of premises necessary for partnership pur- 
 poses, and so used ; 47 Conn. 26 ; 21 La. 
 An. 21. 
 
 Majority, power of. The weight of au- 
 thority seems to be in favor of the power of a 
 majority ofthe firm, acting in good faith, tobind 
 the minority in the ordinary transactions o£#e 
 partnership business; 3 Kent, 45, and note; 
 Story, Part. § 123, and notes; T. &B.496; 
 33 Beav. 595 ; 4 Johns. Ch. 473 ; 46 Penn. 
 434 ; 27 Ala. 245 ; 49 Ga. 417. But see 6 
 Ves. 773 ; 16 Vin. Abr. 244 ; 1 Y. & J. 227i 
 57 Penn. 365. It is said by a learned writer 
 that, in the absence of an express stipulation, 
 a majority must decide as to the disposal of 
 the partnership property ; 3 Chitty, Com. 
 Law, 234 ; but the power of the majon^ 
 must be confined to the ordinary business ot 
 the partnership; 9 Hare, 326; 8 DeG.&J- 
 128 ; 4 K. & J. 733 ; 2 Phill. 740; 14 Beav. 
 367; 2DeG. M. &G.49; 3Sm.&G.n6; 
 it does not extend to the right to change anjr 
 
PARTNERS 
 
 363 
 
 PARTNERS 
 
 of the articles therein; Story, Part. § 125; 
 4 Johns. Oh. 573 ; 32 N. H. 9 ; nor to en- 
 gage the partnership in transactions for which 
 it was never intended ; 3 Maule & S. 488 ; 1 
 Taunt. 241 ; 1 S. & S. 31. Where a ma- 
 jority is authorized to act, it must be fairly 
 constituted and must proceed with the most 
 entire good faith ; T. & R. 525 ; 10 Hare, 
 493 ; 5 De 6. & S. 310. 
 
 Mortgages. A partner has no implied 
 power to make a legal mortgage of partner- 
 ship real estate ; Lind. Part. *284 ; 2 
 Humph. 534. But one party may execute a 
 valid chattel mortgage of firm property, with- 
 out the consent of his co-partners ; 47 Wise. 
 261; 18 Minn. 232; and see 116 Mass. 289. 
 It has been held that a partner's mortgage of 
 his separate estate to the firm is valid ; SO La. 
 An. 869 ; also that where there are firm im- 
 provements on a partner's land, his mortgage 
 of the land carries the improvements with it to 
 the mortgagee without notice ; 7 Barb. 263. 
 
 Pledges of firm property. As a natural 
 consequence of a partner's power to borrow 
 money for the firm, he may pledge its per- 
 sonal property for that purpose ; 3 Kent, 46 ; 
 10 Hare, 453 ; 7 M. & G. 607 ; 3 Bradw. 
 261. It is thought that a partner's equitable 
 mortgage of firm real estate, by depositing 
 deeds of partnership property as a pledge, 
 would be valid ; Lind. Part. *285. 
 
 Purchases. A partner may bind the firm 
 by purchasing on credit such goods as are ne- 
 cessary for carrying^ on the business in the 
 usual way ; 2 C. & K. 828 ; 5 W. & S. 564 ; 
 19 Ga. 520 ; 76 N. C. 139. 
 
 Receipts. The power of a partner to re- 
 ceipt for the firm is incident to his power to 
 receive money for it ; see debts ; Story, Part. 
 §115. 
 
 Relative extent of each partner's power. 
 In all. ordinary matters relating to the part- 
 nership, the powers of the partners are coex- 
 tensive, and neither has a right to exclude 
 another from an equal share in the manage- 
 ment of the concern or from the possession 
 of the partnership effects ; 2 Paige, Ch. 310; 
 16 Ves. 61 ; 2 J. & W. 558 ; Lind. Part. 
 *540. 
 
 Releases. This rule that one partner can- 
 not bind his co-partners by deed does not ex- 
 tend to releases; 10 Moore, 393; 2 Co. 68; 
 3 Johns. 68 ; 4 Gill & J. 310 ; 3 Kent, 48. 
 As a release by one partner is a release by 
 all; Lind. Part. *293; 2 RoUe, Abr. ije- 
 /ease, 410 D; 21 111. 604; 37 Vt. 573; so 
 a release to one partner is a release to all ; 5 
 Gill & J. 314 ; 23 Pick. 444. 
 
 Sales. A partner has power to sell any of 
 the partnership goods ; Cowp. 445 ; 3 Kent, 
 44; see 2 Stark. 287; even the entire 
 stock if the sale be free from fraud on the 
 part of the purchaser ; and such sale dissolves 
 the firm, although the term for which it was 
 formed has not expired ; Lind. Part. *295, 
 n. ; 24 Pick. 89 ; 5 Watts, 22 ; 59 Ala. 338. 
 See, contra, 8 Bosw. 495. A sale by one 
 partner of his share of the stock dissolves the 
 firm and gives the purchaser the right to an 
 
 account; 50 Cal. 615. A bona fide sale of 
 all the partnership effiects by one partner to 
 another is valid, and the property becomes 
 separate estate of the purchaser, although the 
 firm and both partners are at the time insol- 
 vent ; 9 Gush. 553 ; 21 Conn. 130 ; 21 N. H. 
 462. 
 
 Servants. One partner has the implied 
 power to hire servants for partnership pur- 
 poses; 9 M. & W. 79; 74 Penn. 166; and 
 probably to discharge them, though not 
 against the will of his co-partner; Lind. 
 Part. *296. 
 
 Specialties. As a rule, the relation of 
 partnership gives a partner no authority to 
 bind his co-partners by specialty ; Story, 
 Part. § 117 ; and see Deeds and Mortgages. 
 But it has been held that a partner may bind 
 his firm by an executed contract under seal, 
 because the firm is really bound by the act, 
 and the seal is merely evidence ; 38 Penn. 
 231 ; and as stated above, a partner may 
 bind his firm by a release under seal. A 
 lender may diregard a specialty executed by 
 one partner, for a loan, and recover from the 
 firm in assumpsit ; 98 111. 27. 
 
 Warranties. It is laid down as a general 
 rule that a partner has no implied authority 
 to bind the firm by a warranty ; Parsons, 
 Part. *217. But the question is always open 
 to evidence, and a warranty by one partner 
 is held to bind the firm, when it is shown to 
 be incident to the business ; 2 B. & Aid. 679. 
 
 Liabilities. 
 
 General rule. If an act is done by one 
 partner on behalf of the firm, and it can be 
 said to have been necessary for the carrying 
 on of the partnership business in the ordinary 
 way, the firm will prima facie be liable, al- 
 though in point of fact the act was not author- 
 ized by the other partners ; but if the act 
 cannot be said to have been necessary for the 
 carrying on of the partnership business in the 
 ordinary way, the firm will prima facie not 
 be liable ; 10 B. & C. 128 ; 14 M. & W. 11 ; 
 Lind. Part. *237. As to reason for such lia- 
 bility, see Powers, supra. 
 
 Concerning matters relating to admissions^ 
 It is laid down as a general rule that partners 
 are bound by the admissions, representations, 
 and acknowledgments of one of their number, 
 concerning partnership transactions ; Story, 
 Part. § 107 ; Parsons, Part. 201 ; 1 Harr. N. 
 J. 41. A better rule seems to be that the 
 admissions of one partner with reference to a 
 partnership transaction are evidence against 
 the firm; Lind. Part. *264 ; 2 C. &P. 232; 
 1 Stark. 81 ; but not necessarily conclusive 
 evidence ; Lind. Part. *264 ; 2 K. & J. 491 ; 
 5 Stew. N. J. 828. It is held that the ad- 
 mission of one partner in legal proceedings 
 is the admission of all; Story, Part. § 107; 
 1 Maule & S. 259 ; 1 Camp. 82 ; 40 Md. 499 ; 
 68 Ind. 110 ; 47 Mo. 346 ; 4 Conn. 326 ; 15 
 Mass. 44 ; 2 Wash. C. C. 388. 
 
 Agreements inter se. No arrangement 
 between the partners themselves can limit or 
 prevent their ordinary responsibilities to third 
 
PARTNERS 
 
 364 
 
 PARTNERS 
 
 persons, unless the latter assent to such ar- 
 rangement; 2 B. & Aid. 679; 3 Kent, 41; 
 6 Mas. 187, 188; 5 Pet. 129; 3 B. & C. 
 427. But where the creditor has express notice 
 of a private arrangement between the part- 
 ners, by which either the power of one to 
 bind the firm or his liability on partnership 
 contracts is qualified or defeated, such creditor 
 will be bound by the arrangement; 12 N. 
 H. 275 ; 4 Ired. 129 ; 38 N. H. 287 ; 6 Pick. 
 372; 4 Johns. 251; 5 Conn. 597, 598; 1 
 Campb. 404 ; 5 Bro. P. C. 489. 
 
 Attachment. A partner's interest in a firm 
 is liable to attachment by his creditors ; Pars. 
 Part. 382 ; 7 C. B. 229 ; 2 Johns. Ch. 548 ; 
 8 N. H. 252. 
 
 Contracts. See Powers, supra. _ 
 
 Contribution. A partner's contribution to 
 the capital of his firm is a partnership debt 
 for the repayment of which each partner is 
 liable; 119 Mass. 38. Failure of a partner 
 to pay his contribution in full does not entitle 
 his co-partner to exclude him from the busi- 
 ness without a dissolution; 3 C. E. Green, 
 385. 
 
 Debts. Each partner is liable to pay the 
 whole partnership debts. In what proportion 
 the partners shall contribute is a matter mere- 
 ly among themselves; Lord Mansfield, 5 
 Burr. 2613. Universally, whatever agree- 
 ment may exist among the partners them- 
 selves, stipulating for a restricted responsi- 
 bility, and however limited may be the extent 
 of his own separate beneficial interest in, and 
 however numerous the members of, the part- 
 nership, each individual member is liable for 
 the joint debt to the whole extent of his pro- 
 perty ; 5 Burr. 2611; 9 East, 516; 1 V. & 
 B. 157 ; 2 Des. 148 ; 6 S. & R. 333 ; 34 Ohio 
 St. 187. In Louisiana, ordinary partners are 
 bound in solido for the debts of the partner- 
 ship ; La. Civ. Code, art. 2843 ; each part- 
 ner is bound for his share of the partnership 
 debts, calculating such share in proportion to 
 the number of partners, without attention to 
 the proportion of the stock or profits each is 
 entitled to ; Id. art. 2844. 
 
 An incoming partner is not liable for the 
 debts of the firm incurred before he became a 
 member, unless he assumes them by agree- 
 ment; 58 Penn. 179; 27 La. An. 352; 73 
 111. 381 ; 6 Munf. 118. But a retiring part- 
 ner remains liable for the outstanding debts of 
 the firm ; 1 Taunt. 104 ; 4 Russ. 430. 
 
 Dormant partners. Dormant partners are, 
 when discovered, equally liable with those 
 who are held out to the world as partners, 
 upon contracts made during the time they 
 participate in the profits of the business ; 1 
 Cr. & J. 316; 5 Mas. 176; 9 Pick. 272; 5 
 Pet. 529 ; 2 Harr. & G. 169 ; 5 Watts, 454 ; 
 1 Dougl. 371; 1 H. Blackst. 37; 3 Price, 
 538; 21 Miss. 656; 25111.859. This liability 
 is said to be founded on their participation in 
 the profits; 1 Stor. 371, 376; 5 Mas. 187, 
 188; 5 Pet. 574; lOVt. 170; 16 Johns. 40; 
 1 H. Blackst. 31 ; 2 id. 247. Anotherreason 
 given for holding them liable is that they 
 
 might otherwise receive usurious interest with 
 out any risk ; Lord Mansfield, 1 Dougl 371 ■ 
 4 B. & Aid. 663 ; 3 C. B. 641, 650 ; 10 JohnV 
 226. But inasmuch as a dormant partnei 
 differs from an ostensible partner only in beins 
 unknown as such, the liability of eact mu^ 
 be owing to the same cause, viz. : that they 
 are principals in the business, the dormant 
 partner bemg undisclosed ; L. R. 7 Ex. 218. 
 Sharing profits is simply evidence ef this re^ 
 lation ; 5 Ch. Div. 468 ; and the usurious In. 
 terest theory is so palpably illogical that it 
 has never been accepted to any extent ; 2 W 
 Blackst. 997. 
 
 Dower. It has been held that a partner's 
 widow is entitled to dower in firm lands sub- 
 ject to the equities of the parties; 3 Ste* 
 (N.-J.) 415. But see 1 Ohio St. 6S5! 
 Firm debts are a lien on partnership lands 
 paramount to a widow's nght of dower; 8 
 Ohio St. 328. 
 
 Firm funds. A partner who withdraws 
 firm funds from the business, thereby dimin- 
 ishing the stock, and applies them to his own 
 use, IS liable to the others for the injury ; 1 
 J. J. Marsh- 507 ; 3 Stor. 101 ; andfiindsaS 
 used by a partner may be followed into his 
 investments ; 1 Stew. (N. J.) 595. 
 
 Fraud. One partner will be bound by the 
 fraud of his co-partner in contracts relating to 
 the affairs of the partnership, made with in- 
 nocent third persons ; 2 B. & Aid. 795 ; 1 
 Mete. Mass. 563; 6 Cow. 497; 2 CI. & F, 
 250 ; 7 T. B. Monr. 617 ; 7 Ired. 4; 15 Mass, 
 75, 81, 331 ; 66 Ind. 406 ; 73 111. 381 ; Liiid. 
 Part. *314. This doctrine proceeds upon the 
 ground that where one of two innocent per- 
 sons must suffer by the act of a third person, 
 he shall suffer who has been the cause or the 
 occasion of the confidence and credit reposed 
 in such third person; 1 Meto. Mass. 562, 
 563. The liability, therefore, does not arise 
 when there is collusion between the fraudn^ 
 lent partner and the party with whom he 
 deals ; 1 East, 48, 53 ; or the latter has rea^ 
 son to suppose that the partner is acting on 
 his own account ; Peake, 80, 81 ; 2 Ci B. 
 821 ; 10 B. & C. 298. 
 
 Not only gross frauds, but intrigues for pri- 
 vate benefit, are clearly offences against the 
 partnership at large, and, as such, are reliev- 
 able in a court of equity; 15 VeS. 227; % 
 Kent, 51, 52; 1 Sim. 52, 89; 17 Ves. 298. 
 
 Insolvency. It has been held that the dis- 
 charge of the partners in insolvency, as indi- 
 viduals, does not relieve them from Uahility 
 for the firm debts; 56 Cal. 631. 
 
 Judgments. The rule is that a judgment 
 obtained against one partner on a firm liabihfy 
 is a bar to an action against his co-partners on 
 the same obligation ; Lind. Part. *451 ; 3 De 
 G. & J. 33 ; 4 McLean, 51 ; 1 1 Gill & J. 11 1 
 see contra, 14 Bush, 777 ; except when they 
 are abroad and cannot be sued with effect; 
 Ewell's Lind. Part. *451 ; 4 De G. & S- 199. 
 But in Pennsylvania and other states this mlo 
 is changed by statute. Where one partneris 
 sued and judgment is given /or him, the credi- 
 
PARTNERS 
 
 365 
 
 PARTNERS 
 
 tor may still have recourse to the others ; 2 
 H. &C. 717. 
 
 Mismanagement. As a rule, a partner is 
 not liable to the firm for the mismanagement of 
 its business; Penn. N.J. 717. Because it is 
 unreasonable to hold a partner, who acts fairly 
 and for the best interests of the firm accord- 
 ing to his judgment, liable for a loss thus un- 
 wittingly occasioned ; 3 Wash. C. C. 224. 
 
 Notice. A retiring ostensible partner re- 
 mains liable to old customers of the firm who 
 have no notice of his retirement ; 51 Ala. 126 ; 
 57 Ind. 284 ; 83 Penn. 148. Actual notice 
 is not necessary to escape liability to new 
 customers ; Wade, Notice, 226 ; even though 
 the business is continued in the same firm 
 name; 36 Ohio St. 135. As a general rule, 
 notice to one partner of any matters relating 
 to the business of the firm is notice to all ; 40 
 Mich. 546 ; 5 Bosw. 319 ; Lind. Part. *287 ; 
 40N. H. 267; 6 La. An. 684; 20 Johns. 176. 
 
 Surviving partner. The surviving part- 
 ner stands chargeable with the whole of the 
 partnership debts, he takes the partnership 
 property by survivorship, for all purposes of 
 holding and administering the estate, until the 
 effects are reduced to money and the debts 
 paid; 3 Kent, 37 ; 5 Mete. Mass. 576, 585 ; 
 10 Gill & J. 404 ; 30 Me. 386 ; 8 Paige, Ch. 
 527; 13 Miss. 44; 18 Conn. 294. See 1 
 Exch. 164; Year B. 38 Edw. III. f. 7, t. 
 Accompt. The debts of the partnership must 
 ]ye collected in the name of the surviving 
 partner ; 6 Cow. 441 ; Story, Part. § 346 ; 
 3 Kent, 37 ; 4 Mete. Mass. 540. In Louisi- 
 ana the surviving partner does not possess the 
 right until he is authorized by the court of 
 probate to sue alone for or receive partnership 
 debts; 6 La. 194. 
 
 Torts. The firm is not liable for the torts 
 of a partner committed outside of the usual 
 course of the partnership business, unless they 
 are assented to or adopted by its members ; 
 42 N. H. 25 ; 87 111. 508 ; 2 Iowa, 580 ; 4 
 Blatch. 129; 32 Miss. 17. Otherwise, in re- 
 gard to torts committed in conducting the af- 
 fairs of the partnership or those assented to 
 by the firm ; Lind. Part. *299 : as, for the 
 negligent driving of a coach by a member 
 of a firm of coach proprietors ; 4 B. & C. 
 223 ; or for the negligence of a servant em- 
 ployed by the firm while transacting its busi- 
 ness ; 14 Gray, 191 ; or for the conversion of 
 property by a partner to be appropriated to 
 the use of the firm; 87 111. 508. Demand 
 of, and a refusal by, one partner to deliver up 
 property is evidence of a conversion by the 
 firm; 4 Hill, N. Y. 13; 24 Wend. 169; 4 
 Eawle, 120. 
 
 Rights and Duties. 
 General rules. Good faith, reasonable dili- 
 gence and skill, and the exercise of a sound 
 judgment and discretion, lie at the very foun- 
 dation of the relation of partnership. In this 
 respect the same general rules apply to .part- 
 ners which are applicable to the other fidu- 
 ciary relations ; Story, Part. § 169 ; 14Beav. 
 
 250; 10 Hare, 532; 1 Johns. Ch. 470; 53 
 Mo. 122 ; 81 111. 221 ; 80 Penn. 234. It be- 
 comes, therefore, the implied duty of each 
 partner to devote himself to the interests of 
 the business, and to exercise due diligence 
 and skill for the promotion of the common 
 benefit of the partnership. No partner has 
 a right to engage in any business or specula- 
 tion which must necessarily deprive the part- 
 nership of a portion of his skill, industry, or 
 capital; 3 Kent, 51, 52; 1 Johns. Ch. 305; 
 1 S. & S. 133 ; nor to place himself in a po- 
 sition which gives him a bias against the dis- 
 charge of his duty ; Story, Part. § 1 76 ; 1 
 S. & S. 124; 9 Sim. 607; 11 S. & R. 41, 
 48 ; 3 Kent, 61 ; nor to make use of the part- 
 nership stock for his own private benefit ; 6 
 Madd. 367; 4 Beav. 534; 16 irf. 485; 1 
 Macn. & G. 294 ; 1 Sim. 52 ; 3 Stew. (N. J.) 
 254. 
 
 Concerning matters relating to account, 
 suit in equity for. Every partner has a right 
 to an acccount from his co-partner, which may 
 be enforced by a suit in equity, whereby a 
 partner is enabled to secure the application of 
 partnership assets to the payment of firm 
 debts and the distribution of the surplus 
 among the members of the firm ; 8 Beav. 
 106; 5Ves. 792; 24 Conn. 279. A silent 
 partner may have a bill for an account ; 98 
 Mass. 118. It has been held that a partner's 
 bill for an account will be barred by the 
 statute of limitations ; 3 C. E. Green, 457. 
 But not for secret profits made by one part- 
 ner in transacting firm business; 3 Stew. 
 (N. J.) 254. A partner cannot maintain 
 account against the co-partner for the profits 
 of an illegal traffic; 120 Mass. 285. 
 
 Accounts. In order to give the partners 
 an opportunity of seeing that the business is 
 being carried on for their mutual advantage, 
 it is the duty of each to keep an accurate 
 account ready for inspeffion ; 2 J. & W. 
 556 ; Story, Part. § 181 ; and see 104 Mass. 
 436; 16 Fla. 99; 1 De G. & S. 692; 12 
 Sim. 460 ; 3 Y. & C. 655 ; 20 Beav. 219. 
 
 Actions. As a general rule an action •at 
 law does not lie by one partner against his 
 co-partners for money paid or liabilities in- 
 curred on account of the partnership, because 
 without an account it is impossible to tell 
 whether a partner is a debtor or creditor of the 
 firm; Story, Part. § 219; 33 Mo. 557; 54 
 Barb. 353. See, contra, Gow, Part. c. 2, § 3. 
 There are, however, many circumstances un- 
 der which partners may sue each other ; see 
 Story, Part. § 219, note (2). 
 
 Articles of copartnership. Partners may 
 enter into any agreements between themselves, 
 which are not void as against statutory provi- 
 sions or general principles of law, even though 
 they do conflict with the ordinary rules of the 
 law of partnership, and such engagements 
 will be enforced between the parties ; Pars. 
 Part. *232 ; 28 E. L. & Eq. 7. But they do 
 not bind third persons, unless adopted by 
 them ; 2 B. & Aid. 697 ; 8 M. & W. 703 ; 1 
 Dall. 269 ; 14 Ohio St. 592 ; 16 Wend. 505. 
 
PARTNERS 
 
 366 
 
 PARTNERS 
 
 Claims against the firm. _ A partner may 
 be a firm creditor and is entitled to payment 
 of his claim before judgment creditors of the 
 individual partners ; 5 C. E. Green, 288. 
 
 Compensation. As it is the duty of part- 
 ners to devote themselves to the interests of 
 the business, it follows that they are not enti- 
 tled to any special compensation for so doing, 
 although the services performed by them are 
 Very unequal in amount and value, unless 
 there is an express stipulation for remunera- 
 tion ; 7 Paige, Oh. 483 ; 4 Gill, 338 ; 2 D. & 
 B. Eq. 123; Story, Part. 182; 44 Iowa, 
 428; 69Penn. 30; nor for services performed 
 prior to the partnership, although they 
 enure to its benefit ; 124 Mass. 305. A sur- 
 viving partner hfis been held entitled to com- 
 pensation for continuing the business, in 
 order to save the good-will ; 26 Ohio St. 
 190. See 118 Mass. 237. 
 
 Contribution, Since partners are co-prin- 
 cipals and all liable for the firm debts, any 
 partner who pays its liabilities is, in absence 
 of agreement to the contrary, entitled to con- 
 tribution from his co-partners ; Lind. Part. 
 *760; 6 DeG. M. &G. 572; 3 111.464; 18 
 Penn. 351. ■ 
 
 Dissolution. A member of an ordinary 
 partnership, the duration of which is indefi- 
 nite, may dissolve it at any time; Lind. 
 Part. *220; 51 Ind. 478; 76 N. Y. 373; 4 
 Col. 567. It will then continue only for pur- 
 poses of winding up ; 1 7 Ves. 298 ; 5 Leigh, 
 583. But a court of equity would perhaps 
 interfere to prevent irreparable injury by an 
 untimely dissolution; 1 Swanst. 512, note. 
 Where there is an agreement to continue the 
 business for a certain time, one partner has 
 no right to have a dissolution except for spe- 
 cial cause; 50 Barb. 169 ; s. c. 3 Abb. Pr. 
 U. S. 163. In general, any circumstance 
 which renders the continuance of the partner- 
 ship, or the attainment of the end for which 
 it was created, practically impossible, would 
 seem sufficient to warrant a dissolution ; Lind. 
 Part. *222; 22 Beav. 471. 
 
 Exemption. The right of partners to statu- 
 tory exemption out of firm property is a dis- 
 puted point, and depends somewhat on the 
 statutes of the several states. In Ohio and 
 Pennsylvania it has been decided that they 
 are not so entitled; 26 Ohio St. 317; 44 
 Penn. 442. Contra, 57 Ga. 229 ; 44 Mich. 
 86; 37 N. Y. 350; and see 67 N. C. 140; 
 101 Mass. 105; Thomps. Hom. & Ex. § 197. 
 
 Firm name, use of. It has been held that 
 one partner has no right to use the firm name 
 after dissolution ; 7 South. 749 ; 7 Abb. Pr, 
 202 ; 7 Phila. 257 ; the reason given being that 
 such a continued use of the firm name would 
 impair the value of the good- will and might 
 also subject the retired partners to additional 
 liabilities ; Lind. Part. 862. For cases contra 
 see 3 Swanst. 490 ; 7 Sim. 421 ; 28 Beav. 
 536 ; 4 Denio, 559. 
 
 Firm property. Each partner has a claim, 
 not to any specific share or interest in the pro- 
 perty in specie, as a tenant in common has, 
 
 but to the proportion of the residue which 
 shall be found to be due to him upon the final 
 balance of their accounts, after the conversion 
 of the assets and the liquidation thereout of 
 all claims upon the partnership ; and there- 
 fore each partner has a right to have the same 
 applied to the discharge and payment of all 
 such claims before any one of the partners 
 or his personal representatives, or his indil 
 vidual creditors, can claim any right or title 
 thereto; Story, Part. § 97; 7 Jarman, 
 Conv. 68 ; Cowp. 469 ; 1 Ves. Sen. 239 ■ i 
 Ves. 396; 6 id. 119; 17 id. 193. ' 
 
 Each partner has also a specific lien on the 
 present and future property of the partner- 
 ship, the stock brought in, and every thin» 
 coming in during the continuance and after 
 the (determination of the partnership, not 
 only for the payment of debts due to third 
 persons, but also for the amount of his own 
 share of the partnership stock, and for all 
 moneys advanced by him beyond that amount 
 for the use of the partnership, as also for 
 moneys abstracted by his co-partners beyond 
 the amount of his share ; Story, Part. §§ 97, 
 326, 441 ; 3 Kent, 65, 66 ; 8 Dana, 278 ; 10 
 Gill & J. 253 ; 20 Vt. 479 ; 9 Cush. S58; 9 
 Beav. 239; 20 id. 20; 25 id. 280. This 
 lien attaches on real estate held by the part- 
 nership for partnership purposes, as well as 
 upon the personal estate; 5 Mete. Mass. 662, 
 577-579, 585 ; and is coextensive with the 
 transactions on joint account; 1 Dana, 68; 
 11 Ala. N. s. 412. 
 
 Upon a settlement of a partnership by an 
 account, the assets are divided among the 
 partners in proportion to their contributions; 
 atid each partner is liable for a deficit in pro- 
 portion to his share of the profits ; 120 Mass. 
 324. 
 
 Fraud. A partner has an equity to re- 
 scind the partnership and be indemnified for 
 his co-partner's fraud in inducing him to en- 
 ter the business ; 1 26 Mass. 304 ; 3 De G. & 
 J. 304 ; 1 Gifi". 355. Where the partnership 
 suffers from the fraud or wanton misconduct 
 of any partner in transacting firm business, he 
 will be responsible to his co- partners for it; 
 Story, Part. S 169. 
 
 Interest. As a general rule partners are not 
 entitled to interest on their respective capi- 
 tals unless by special agreement, or unless it 
 has been the custom of the firm to have such 
 interest charged in its accounts ; 3 De G. J. 
 & S. 1 ; 6 Beav. 483; 89 Penn. 139; 119 
 Mass. 38 ; 20 Ala. 747 ; 92 111. 92. But a 
 partner is entitled to interest on advances 
 made by him to the firm ; 6 Mad. 145 ; 4 De 
 G. M. &G. 36; 129 Mass. 517; 14 N. J. 
 Eq. 44; Lind. Part. *787; 17 Vt. 242; 79 
 N. Y. 366 ; and no express agreement is 
 necessary; 1 McCart. Ch. 44. See, how- 
 ever, 8 Dana, 214 ; Pars. Part. *229, !"><« 
 (y) ; 24 Conn. 185. , 
 
 Liquidating partner. It is the duty ot 
 thos© upon whom, by appointment or other- 
 wise, it devolves, after the dissolution ot a 
 firm, to wind up the aflairs of the partnership, 
 
PARTNERS 
 
 367 
 
 PARTNERSHIP 
 
 to act for the best advantage of the concern, 
 to make no inconsistent use of the property, 
 and to seek no private advantage in the com- 
 position of debts or in any other transaction 
 in the performance of this business ; 1 Taunt. 
 104 ; 1 Swanst. 507 ; 2 id. 627. Nor, in this 
 case, can any partner claim any commission 
 for getting in the debts, or, in any other par- 
 ticular, re ward or compensation for his trouble ; 
 
 1 Knapp, P.O. 312; 3 Kent, 64, note; 
 Story, Part. ? 331 and note; 17 Pick. 519; 
 4 Gratt. 138; but in 16 Vt. 613, a partner 
 ■who performed services in settling up the 
 affairs of a firm after dissolution was allowed 
 compensation for them. See Compensation, 
 supra. 
 
 Litigation. A partner may recover the 
 costs of carrying on litigation for the firm — 
 but not compensation for conducting it, unless 
 by express agreement ; 2 Stew. N. J. 504. 
 
 Profits and losses, distribution of. As 
 between the partners, they may by agreement 
 stipulate for equal or unequal shares in the 
 profit and loss of the partnership; Story, 
 Part. § 23 ; but in the absence of any ex- 
 press agreement or stipulation between them, 
 and of all controlling evidence and circum- 
 stances, tlie presumption has been held to be 
 that they are interested in equal shares ; Story, 
 Part. § 24; 1 Mood. & R. 527; 6 Wend. 
 263 ; 9 Ala. N. s. 372 ; 13 id. 752 ; 2 Murph. 
 70; 5 Dana, 211 ; 1 Ired. Eq. 332; 1 J. J. 
 Marsh. 506 ; 20 Beav. 98 ; 17 Ves. Ch. 49. 
 And the circumstance that each partner has 
 brought an unequal amount of capital into 
 the common stock, or that one or more have 
 brought in the whole capital and the others 
 have only brought industry, skill, and experi- 
 ence, would not seem to furnish any substan- 
 tial ground of difference as to the distribution ; 
 Story, Part. § 24 ; 3 Kent, 28, 29 ; 21 Me. 
 117. 
 
 It has sometimes been asserted, however, 
 that it is a matter of fact, to be settled by a 
 jury or by a court, according to all the cir- 
 cumstances, what would be a reasonable ap- 
 portionment, uncontrolled by any natural pre- 
 sumption of equality in the distribution; 
 Story, Partn. ? 24 ; 2 Camp. 45 ; 7 Bligh, 
 432. The opinion in England seems divided; 
 ■ but in America the authorities seem decidedly 
 to favor the doctrine of a presumed equality 
 of interest. See American cases cited above ; 
 Story, Part. §§ 24-26. 
 
 Receiver, appointment of. To authorize a 
 partner to demand the appointment of a re- 
 ceiver of a subsisting partnership, he must 
 show such a case of gross abuse and miscon- 
 duct on the part of his co-partner, that a dis- 
 solution ought to be decreed and the business 
 wound up; Story, Part. §§ 228, 231 ; 2 Mer. 
 405 ; 8 C. E. Green, 208, 388. After disso- 
 lution a court of equity will appoint a re- 
 ceiver almost as a matter of course ; Lind. 
 Part. *1008; 1 Ch. Div. 600; 65 N. C. 162; 
 
 2 C. E. Green, 343 ; 20 Md. 30. But see 
 18 Ves. 281. 
 
 Set-off. It may be stated as a general rule 
 in law and equity that there can be no set-off | 
 
 of joint debts against separate debts unless 
 under a special agreement; Story, Part. § 
 396. Thus, a debt due by one of the mem- 
 bers of a firm cannot be set off against a debt 
 due the firm ; 2 C. B. 821 ; 8 Scott, 257 ; 2 
 Bay, 146 ; 4 Wend. 583. Nor can a debt 
 owing to a partner be set off against a debt 
 due by the firm ; 9 Exch. 153'; 6 C. & P. 
 60; Lind. Part. *506 ; 1 South. 220. 
 
 Torts. If the partnership suffers loss from 
 the gross negligence, unskilfulness, fraud, or 
 other wanton misconduct of a partner in the 
 partnership business, or from a known devia- 
 tion from the partnership articles, he is ordi- 
 narily responsible over to the other partners 
 for all losses and damages sustained thereby ; 
 1 Sim. 89 ; Pothier, Part. n. 133 ; 3 Kent, 
 52, note; Story, Part. § 173 and note. 
 
 PARTNERSHIP. A relation founded 
 upon a contract between two or more persons 
 to do business as individuals on joint, undi- 
 vided account. 
 
 A voluntary contract between two or more 
 persons for joining together their money, 
 goods, labor, and skill, or any or all of them, 
 in some lawful commerce or business, under 
 an understanding, express, or implied from 
 the nature of the enterprise, that there shall 
 be a communion of profit and loss between 
 them, will constitute a partnership. Collyer, 
 Part. § 2 ; 10 Me. 489 ; 3 Harr. N. J. 485 ; 
 5 Ark. 278. 
 
 An agreement that something shall be at- 
 tempted with a view to gain, and that the 
 gain shall be shared by the parties to the 
 agreement, is the grand characteristic of every 
 partnership, and is the leading feature in 
 every definition of the term. See Ewell's 
 Lind. Part. *1, *2, *3, where many defini- 
 tions are collected. 
 
 There can be no doubt whatever that per- 
 sons engaged in any trade, business, or adven- 
 ture, upon the terms of sharing the profits 
 and losses arising therefrom, are partners in 
 that trade, business, or adventure. This 
 is a true partnership, both between the par- 
 ties and quoad third persons. 2 Bingh. N. c. 
 108; 3 Jur. N. s. 31, in the Rolls; Bissett, 
 Part. Eng. ed. 7. 
 
 The law of partnership, as administered in 
 England and in the United States, rests on a 
 foundation composed of three materials, — the 
 common law, the law of merchants, and the 
 Roman law. Collyer, Part. § 1. 
 
 Partnership at the Roman law (societas) 
 included every associated interest in property 
 which resulted from contract ; e. g. where 
 two bought a farm together. Every other 
 associated interest was styled communitas, 
 e. g. where a legacy was left to two ; Pothier, 
 Droit Franc. III., 444 ; Ewell's Lind. Part. 
 58, note 2; 11 l^a. An. 277. 
 
 Partnership at the common law is an active 
 notion. The relation implies a business and 
 a turning of capital. It is to be contrasted 
 with ownership, which is, whatever the ten- 
 ancy, a passive notion ; 1 Johns. 106 ; 54 
 Cal. 439. But there may be at the common 
 law a joint purchase and an individual liabili- 
 
PARTNERSHIP 
 
 368 
 
 PARTNERSHIP 
 
 ty for the whole price without a partnership. 
 In a purchase expressly by two the contract 
 is prima facie joint with a consequent lia- 
 bility of each for the whole price. But this 
 inference may be contradicted by circum- 
 stances known to the seller which indicate a 
 division of title ; Ewell's Lind. Part, *58 
 et seq. ; 1 Wms. Saund. 291 c. ; 4 Cow. 163, 
 282; 19 Ves. Jr. 441; 27 Iowa, 131 ; 9 
 Johns. 475; 15 Me. 17. 
 
 Partnership, in the Roman law, was in buy- 
 ing or selling. True partnership, at common 
 law, is only in buying and selling. This pe- 
 culiarity of the common law is due to the 
 commercial origin of the relation and of the 
 rules by which the relation is governed. The 
 Roman societas was an ontmowth of the an- 
 cient tribal constitution. The common law 
 partnership is an expedient of trade; 15 
 Wend. 187; 12 Wend. 386; 42 Ala. 179; 
 Ewell's Lind. Part. *58 et seq. ; 41 Me. 9 ; 
 1 Penn. 140 ; Camp. 793 ; 2 Johns. Cas. 329 ; 
 1 Johns. 106. Buying to sell again fixes the 
 transaction as a joint one and establishes a 
 partnership. The transaction is joint beeaaise 
 the sale excludes the idea of division of title 
 in the purchase. The property dealt in be- 
 comes the instrument of both parties in ob- 
 taining a totally distinct subject of distribu- 
 tion, i. e. the profit; 14 Wend. 187 ; 1 Hill, 
 N. Y. 234 ; 3 Kent, *25. There must be an 
 agreement, not a mere intention to sell jointly ; 
 47 N. Y. 199. 
 
 In a partnership, the members do business 
 in their unqualified capacity as men, without 
 special privilege or exemption ; they are 
 treated in law as a number of individuals, 
 ~ occupying no different relation to the rest of 
 the world than if each were acting singly ; 7 
 Ves. 773; 3 V. & B. 180; Ewell's Lind. 
 Part. *4, note. On the other hand, a cor- 
 poration, though in fact but an association of 
 individuals with special privileges and exemp- 
 tions, is in contemplation of law a fictitious 
 person distinct from the members who com- 
 pose it; Ewell's Lind. Part. *4. Every 
 unincorporated association for purposes of 
 gain is a partnership ; unless it can claim cor- 
 porate privilege on the ground of a de facto 
 standing; 27 Ind. 399; 66 N. Y. 425 ; 7 
 Penn. 165 ; Ewell's Lind. Part. *99, note; 
 65 111. 532 ; 4 Hun, 402. A club or associa- 
 tion not for gain is not a partnership : it is 
 not a commercial relation ; Ewell's Lind. 
 Part. *57; 6 Mo. App. 465; 22 Ohio St. 
 159 ; 97 Penn. 493. 
 
 Whether a partnership exists or not in a 
 particular case is not a mere question of fact, 
 but one mixed of law and fact. It is, never- 
 theless, generally to be decided by a jury. 
 See 3 Harr. N. J. 358 ; 4 id. 190 ; 6 Conn. 
 347; 1 N. & M'C. 20; 1 Caines, 184; 2 
 Fla. 541 ; 3 C. B. n. s. 562, 563 ; 42 Ala. 179. 
 
 Elements of Partnership. 
 The elements of partnership are the con- 
 tribution and a sharing in the profits. These 
 
 two elements must be combined. Without 
 contribution the aUeged partner cannot be 
 said to do business; unless he shares the 
 profits, the business is not carried on for his 
 account. Contribution without a share in the 
 profits is a simple gift to the firm, by which 
 firm creditors are enriched, not damaged 
 Sharing profits without contribution is iM 
 by the firm to the beneficiary, with which 
 creditors may of course interfere by tmim 
 the property and closing out the concern. In 
 neither case, does the alleged partner enter 
 into business relations with the customers and 
 creditors of the firm; 3 Kent, *24 *25- g 
 H. L. C. 286 ; 6 Ch. Div. 458 ; 8 Hun, ' 
 L. R. 7 Exch. 218. 
 
 , 189; 
 
 Contribution need not be made to the firm 
 stock ; any co-operation in the business will 
 be enough; 4 East, 144; 16 Johns. 34; 
 Story, Part. §§ 27, 40. A contribution must 
 be kept in the concern, and takes the risk of 
 the business; a loan, on the other hand, is 
 made upon the personal credit of the partners 
 merely, and may be used by them as they 
 please ; it is to be repaid at all events. Be- 
 cause of this difierence, sharing profits in lien 
 of interest upon a loan does not create a part- 
 nership. The English statute to this effect 
 has been decided to be merelv declaratory; 5 
 Ch. Div. 458 ; 7 Ch. Div. '511 ; 62 N. Y. 
 508 ; 6 Pick. 372. 
 
 It has sometimes been said that sharing pro- 
 fits is the sole criterion of partnership : but 
 this rule has been condemned. Again, it is 
 called prima facie evidence of partnership, 
 but a contribution will have the same effect. 
 Each is an element in a relation not complete 
 without both. Sharing profits without losses 
 has been said to constitute a partnership as to 
 third persons, a j'uasi-partnership ; 1 Story, 
 371 ; 58 N. Y. 272; 13 Barb. 302. The 
 doctrines by which a 9ua.?i-partnership re- 
 sults from merely sharing profits seem to 
 find their root in decisions of a comparatively 
 modern date. They are certainly not very 
 clearly defined, and sometimes lead to great 
 apparent injustice ; Ewell's Lind. Part. •84 
 et seq.; 2 W. Blackst. 998 ; 18 C. B. 617; 
 3 N. H. 287, 307 ; 58 N. Y. 272. 
 
 It has been held that a juasf-partnership 
 subsists between merchants who divide the 
 commissions received by each other on the 
 sale of goods recommended or "influenced" 
 by the one to the other ; 4 B. & Aid. 663. 
 So between persons who agree to share the 
 profits of a single isolated adventure; 9 C. 
 B. 431; 1 Rose, 297; 4 East, 144; and be- 
 tween persons one of whom is in the position 
 of a servant to the others, but is paid a share 
 of the profits instead of a salary ; 1 Deac. 341 ; 
 1 Rose, 92 ; and between persons one of 
 whom is paid an annuity out of the profits 
 made by the others ; 17 Ves. 412; SBingh. 
 469 ; or an annuity in lieu of any share 
 in those profits ; 2 W. Blackst. 999. So be- 
 tween the vendor and purchaser of a busaess, 
 
PARTNERSHIP 
 
 869 
 
 PARTNERSHIP 
 
 if the former guarantees a clear profit of so 
 much a year, and is to have all profits beyond 
 the amount guaranteed ; 3 C. B. 641. The 
 character in which a portion of the profits is 
 received does not aifect the result; see 1 
 Maule & S. 412; 10 Ves. 119; 21 Beav. 
 164; 6 Ad. & E. 28; U C. B. 406. Per- 
 sons who share profits are guasi-partners al- 
 though their community of interest may be 
 confined to the profits ; 2 B. & C. 401. 
 
 An agreement to share losses is not essen- 
 tial ; that follows as an incident to the relation. 
 Indeed all liability inter se may be guarded 
 against by contract and a partnership may 
 nevertheless subsist ; 1 H. Blackst. 49 ; 3 M. 
 &W. 357; 6 id. 119; 2 Bligh, 270; 8 C. 
 B. 32, 39 ; Ewell's Lind. Part. *22 ; 7 Ala. 
 761 ; 5 La. An. 44. Partnership is a ques- 
 tion of intention, and the intention which 
 makes a partnership is to contribute to the 
 business and share the profits. In this way, 
 the parties became co-principals in a business 
 carried on for their account. The law then 
 creates a liability even against the express 
 stipulations of the parties ; L. R. 7 Exch. 
 218 ; 5 Ch. Div. 458 j 8 H. L. C. 268. The 
 question of intention is to be decided by a 
 consideration of the whole agreement into 
 which the parties have entered, and ought not 
 to be made to turn upon a consideration of 
 only a part of its provisions; 15 M. & W. 
 292 ; 2 B. & C. 401 ; 1 Stor. 371 ; 3 Kent, 
 27 ; 3 C. B. 250 ; Ewell's Lind. Part. *19. 
 
 An agreement to share profits, nothing be- 
 ing said about the losses, amoants prima facie 
 to an agreement to share losses also : so that 
 an agreement to share profits is prima facie 
 an agreement for a partnership ; and, accord- 
 ingly, it is held that, unless an agreement to 
 the contrary is shown, persons engaged in any 
 business or adventure, and sharing the profits 
 derived from it. are partners as regards that 
 business or adventure. Still, if cannot be 
 said that persons who share profits are neces- 
 sarily and inevitably partners in the proper 
 sense of the word ; 1 Camp. 330 ; Ewell's 
 Lind. Part. *1 9 note; 28 Ohio St. 319; 54 
 Mo. 3,25; 5 Gray, 59, 60; 12 Conn. 69; 12 
 N.H. 185 ; 15 Me. 294; 3 C. B. n. s. 562, 
 563. See 18 Johns. 34 ; 18 Wend. 175 ; 6 
 Conn. 347. Although a presumption of part- 
 nership would seem to arise in such a case ; 
 CoUyer, Part. § 85 ; ^still, the particular cir- 
 cumstances of the case may be such as to re- 
 pel this presumption. It may appear that the 
 share of the profits taken was merely a com- 
 pensation to one party for labor and service, 
 or for famishing the raw materials, or a mill- 
 privilege, or a factory, or the like, from which 
 the other is to earn profits ; Story, Part. § 
 36 ; 5 Gray, 60 ; 8 Cush. 556, 562 ; 3 Kent, 
 33; 6 Halst. 181; 2 M'Cord, 421; but see 
 38 N. H. 289. Originally it was immaterial 
 whether the profits were shared as gross or 
 net ; but the later cases have established a dis- 
 tmction. A division of gross returns is 
 thought to be identical with a purchase for 
 the purpose of division ; the price represents 
 Vol. II.— 24 
 
 the thing. There is no unity of interest ; 1 
 Camp. 829 ; Story, Part. § 34 ; 3 Kent, 25, 
 note; 3 M. & W. 857, 360, 361 ; 3 C. B. 
 N. 8. 544, 562; 4 Maule & S. 240 ; 5 N. Y. 
 186 ; 6 Denio, 68 ; Ewell's Lind. Part. *15 et 
 acq. But the distinction is not absolutely de- 
 cisive on the question of partnership ; see 1 
 Camp. 330; 6 Vt. 119; 10 id. 170; 6 Pick. 
 335; Hid. 193; 6 Mete. 91 ; 4 Me. 264; 
 12 Conn. 69 ; 38 N. H. 287, 304 ; Abbott, C. 
 J., 4 B. & Aid. 663. The officers and crews 
 of whaling and other fishing vessels, who are 
 to receive certain proportions of the produce 
 of the voyage in lieu of wages ; 4 Esp. 182 ; 17 
 Mass. 206 ; 3 Pick. 435 ; 4 id. 234 ; 28 id. 
 495 ; 3 Stor. 112 ; 2 Y. & C. 61 ; captains of 
 merchant-ships who, instead of wages, receive 
 shares in the profits of the adventures on 
 which they sail ; 4 Maule & S. 240 ; or who 
 take vessels under an agreement with the 
 owners to pay certain charges and receive a 
 share of the earnings ; 6 Pick. 335 ; 16 Mass. 
 336 ; 7 Me. 261 ; persons making shipments 
 on half-profits, and the like ; 1 7 Mass. 206 ; 
 14 Pick. 195; have generally been held not 
 to be partners with the owners. A clerk, of 
 course, co-operates in the business ; but his 
 services are rendered to his employer and in 
 the capacity of a subordinate. So long as his 
 special function remains unchanged, the busi- 
 ness may assume any complexion the em- 
 ployer pleases to give it. Hence sharing pro- 
 fits in lieu of wages is not a partnership. 
 There is no true contribution ; Ewell's Lind. 
 Part. *20 et seq.; 69 111. 237 ; 16 Kan. 209 ; 
 118 Mass. 443; 84 Md. 49; 29 N. J. L. 
 270 ; 76 N. Y. 55 ; 14 Cal. 78 ; 43 Mo. 538 ; 
 44 Ga. 228. A factor, simple or del credere, 
 may receive a portion of the profits in lieu of 
 commissions without becoming a partner. 
 His services are not contributed to the busi- 
 ness as a whole, they are not co-ordinate with 
 the investment of the consignor in the goods. 
 The factor is agent for selling merely ; 62 
 Penn. 374 ; 24 L. J. Ch. 58 ; 8 C. B. 32. 
 
 Where a business is assigned to trustees 
 who are to manage it and pay creditors out of 
 the profits, the creditors are not partners ; 
 they made no original contribution, and they 
 do not strictly participate in the gain. The 
 distribution of so-called profit is really the 
 payment of a debt; 8 H. L. C. 268; but 
 creditors who set up their insolvent debtor in 
 business and share the profits with him, for- 
 bearing meanwhile to press their claims, are 
 partners; 8 Hun, 189. 
 
 A distinction is made between a share in 
 the profits and a commission equal to a cer- 
 tain per cent, on the profits. In the latter 
 case there is no partnership, because no shar- 
 ing in the profits as such. The rule is based 
 upon authority, but is acknowledged to have 
 no foundation in common sense. It is an at- 
 tempt to escape from the rigidity of the sup- 
 position that a share in the profits must in all 
 cases make a man a partner ; L. R. 4 P. C. 
 App. 419 ; 62 Penn. 374 ; 17 Ves. 404, 419 ; 
 18 Ves. 300; 12 Conn. 69; 6 Mete. 82; 6 
 
PARTNERSHIP 
 
 370 
 
 PARTNERSHIP 
 
 Denio, 180; 3 Kent, 34; Ewell's Lind. Part. 
 *37; 74 N. Y. 30. 
 
 In other cases, it is held that in order to 
 render a man liable as partner he must have 
 a specific interest in the profits as a principal 
 trader ; CoUyer, Part. § 25 ; 12 Conn. 77,78; 
 1 benio, 337; 15 Conn. 73; 10 Mete. 303; 
 28 Ohio St. 319. But in reference to these 
 positions the questions arise, When may a 
 party be said to have a specific interest in the 
 profits, as profits ? when, as a principal tra- 
 der ? — questions in themselves very nice, and 
 difficult to determine. See 6 Mete. 82; 12 
 Conn. 77. 
 
 Sometimes the partnership relation has 
 been made dependent on the power to control 
 the business. In strictness the only control 
 necessary is the power to control the applica- 
 tion of the contribution. A partner may 
 have no power inter se to manage the busi- 
 ness; 4 Sandf. 311 ; 1 Hem. & M. 85. 
 
 Again, partnership has been said to re- 
 quire that a partner have an initiative in the 
 conduct of the business ; but the proposition 
 seems to lose sight of dormant partners ; L. 
 R. 4 P. C. 419. 
 
 Again, partnership has been made to depend 
 on what is termed the legal title to the busi- 
 ness : A was not a partner-, though he shared 
 in the profits of a business created solely by 
 his contribution but assigned to B for A's 
 protection; L. R. 1 C. P. 86. There are 
 other cases in which considerable stress is laid 
 on the right to an account of profits, as fur- 
 nishing a rule of liability ; 3 Kent, 25, note ; 
 18 Wend. 184, 185 ; 3 C. B. N. s. 544, 561 ; 
 Story, Partn. § 49. But, although it is true 
 that every partner must have a right to an 
 account, it seems not to be equally true that 
 every party who has a right to an account is 
 a partner ; 5 Gray, 58. 
 
 Partnership has sometimes been styled a 
 branch of the law and relation of principal 
 and agent. But mutual agency is not the 
 basis, it is the incident of partnership. Part- 
 ners are co- principals, and the right and power 
 of representation springs from this circum- 
 stance. A dormant partner is not at all the 
 agent of the firm; L. R. 7 Ex. 227. The 
 principal distinction between a partnership 
 and a mere agency is that a partner has a 
 community of interest with the other partners 
 in the business and responsibilities of the 
 partnership, — sometimes both in the stock and 
 profits, and sometimes only in the profits, — 
 whereas an agent, as such, has no interest in 
 either; Story, Part. ? 1 ; 16 Ves. 49; 17 
 id. 404; 4 B. & C. 67; 1 Deac. 341. The 
 authority of a partner is much more extensive 
 than that of a mere agent ; 10 N. H. 16. See 
 Partners. 
 
 The formation of a contract of partnership 
 does not require any particular formality. It 
 is, in general, sufficient that it is formed by 
 the voluntary consent of the parties, whether 
 that be express or implied, whether it be by 
 written articles, tacit approbation, or by parol 
 contract, or even by mere acts ; Story, Part. 
 
 § 86 ; 3 Kent, 27 ; Daveis, 320; 4 Conn 
 568. As a general rule a writing is unneces^ 
 sary ; 2 Barb. Ch. 336 ; Ewell's Lind. Part 
 *92. Under the Statute of Frauds, where 
 there is an agreement that a partnership shall 
 commence at sometime more than a year from 
 the making of the agreement, a writing is 
 necessary; 5 B. & C. 108; as to partnership 
 in lands, see infra. 
 
 Where there is no written agreement, the 
 evidence generally relied upon to prove a 
 partnership is the conduct of the parties, the 
 mode in which they have dealt with each 
 other, and the mode in which each has, with 
 the knowledge of the others, dealt with other 
 persons. This can be shown by the books of 
 account, by the testimony of clerks, agents, 
 and other persons, by letters and admissions, 
 and, in short, by any of the modes in which 
 facts can be established. As to the presump- 
 tion arising from the joint retainer of solicit 
 ors, see 20 Beav. 98 ; 7 De G. M. & G. 239; 
 7 Hare, 159, 164. For cases in which part- 
 nership has been inferred from various cir- 
 cumstances, see 4 Russ. 247 ; 2 Bligh, N. b. 
 215 ; 3 Bro. P. C. 548 ; 5 id. 482; 1 Stark. 
 81 ; 2 Camp. 45. Though formed by deed, 
 partnership may be dissolved by parol; Ewell's 
 Lind. Part. *222. 
 
 Kinds. The Roman law recognized five 
 sorts of partnership. First : societaa univer- 
 sorum bonoram, a community of goods; 
 probably a survival of the old tribal relation. 
 Second : societas universorum quae ex quasbt 
 veniunt, or partnership in everything which 
 comes from gain, — the usual form; rothier, 
 Part. nn. 29, 43. Such contracts are said 
 to be within the scope of the common law; 
 but they are of very rare existence ; Story, 
 Part. § 72; 6 Mas. 183. Third: societal 
 vectigalium, a partnership in the collection of 
 taxes. It was not dissolved by the death of a 
 'member ; and if it was so agreed in the begin- 
 ning, the heir immediately succeeded to the 
 place of the ancestor. Fourth : societm tie- 
 gotiationis alicujus, i. e. in a given business 
 venture. Fifth : societas certarvm rerum ml 
 unius ret, i. e. in the acquisition or sale of one 
 or more specific things ; Pothier, Part. *24 
 et seq. 
 
 At the French law, there are four princiiial 
 classes of partnership ; First : en nom coUedif, 
 the ordinary general partnership. Second; 
 en commandite, an association corresponding 
 to our limited partnership, composed of gen- 
 eral and special partners in which the liabil- 
 ity of the latter is limited to the fund invested 
 by them. Third : anonyme, a joint stock 
 company with limited liability. Fourth: en 
 participation, simply a partnership with a 
 dormant partner ; Merlin, Rep. de Jur. tit. 
 Society; Mackenzie, Rom. Law, 217; Pothier, 
 Part. *39 et seq; see Goiraud, Code, etc. 
 
 At the common law all partnership is forga!"; 
 General partnership is for a general line ol 
 business ; 3 Kent, »25 ; Ewell's Lind. i'art. 
 *65, *56; Cowp. 814, 816. But where the 
 parties are engaged in one branch of trade or 
 
PARTNERSHIP 
 
 871 
 
 PARTNERSHIP 
 
 business only, they would be usually spoken of 
 as engaged in a general partnership ; Storjf, 
 Part. § 74. Special or particular partnership 
 is one confined to a particular transaction. 
 The extent or scope of the agreement is difier- 
 ent in the two cases, but the character of the 
 relation is the same. A partnership may ex- 
 ist in a single transaction as well as in a series ; 
 Daveis, 323 ; 3 Kent, SO; 2 Ga. 18; 3 C. B. 
 641, 651 ; 9 id. 458 ; Ewell's Lind. Part. *36, 
 *56 ; 49 Penn. 83. Special or limited part- 
 nership diifers from the ordinary relation. It 
 is composed of general partners to whom all 
 the ordinary rules of partnership apply, and 
 of limited partners with circumscribed power 
 and liability limited to the amount of their 
 contribution. The privilege is imparted by 
 charter in England. In America it exists by 
 statute ; and unless the provisions of the act 
 are strictly complied with, the association will 
 be treated as a general partnership ; 3 Kent, 
 *35; 67 Penn. 330; 62 N. Y. 513; 91 111. 
 96. The special exemption of a limited part- 
 ner will be recognized in other jurisdictions 
 than the one in which the association is 
 formed, though the firm has made the con- 
 tract in the foreign jurisdiction ; 69 N. Y. 24. 
 
 Another sort of association is styled ' ' part- 
 nership limited." It is of recent, statutory 
 origin and strongly resembles a corporation. 
 The members incur no liability beyond the 
 amount of their subscription ; unless they vio- 
 late in some manner the requirements of the 
 statute under which they organize. It is a 
 general requirement, that the word " limited " 
 be in all cases added to the firm name. 
 
 There is still another class of partnerships, 
 called "joint-stock companies." These gen- 
 erally embrace a large number of persons, 
 but, except under express statute provisions, 
 the members are liable to the same extent as 
 in ordinary partnerships ; Story, Part. § l&i'n 
 4 Mete. Mass. 535 ; 2 C. & P. 408, n. ; 1 V. 
 & B. 167; 63 Penn. 273; 24 111. 387; 37 
 Vt. 64. 
 
 Sub-Partnerships. 
 The delectus personam, q. v., which is in- 
 herent in the nature of partnership, precludes 
 the introduction of a stranger into the firm 
 without the concurrence of all the partners ; 7 
 Pick. 235, 238; 11 Me. 488; 1 Hill, N. Y. 
 234 ; 8 W. & S. 63 ; 16 Ohio, 1 66 ; 2 Rose, 254. 
 Yet no partner is precluded from entering into 
 a sub-partnership with a stranger : nam socii 
 mei socius, meus socius non est. Dig. lib. 1 7, 
 tit. 2, s. 20; Pothier, Part. ch. 5, § ii. n. 
 91. In such case the stranger may share the 
 profits of the particular partner with whom he 
 contracts ; and although it has been decided 
 that it is not true as a general proposition 
 that such stranger will not be liable for the 
 debts of the general partnership ; 13 Gray, 
 468 ; still, it is quite evident that a mere par- 
 ticipation in profits renders one responsible 
 only for the debts and liabilities of those with 
 whom he participates j and, inasmuch as such 
 stranger shares the profits only of and with 
 
 one of the partners, he can be held only as 
 the partner of that partner ; he cannot be held 
 as a partner in the general partnership, be- 
 cause he does not share or participate with 
 the other persons who compose it. See Rose, 
 265; IJao. 284; 3 Kent, 52 ; 2S. &S. 124; 
 
 1 B. &P. 646; M. &M'A. 445; 19 Ind. 113; 
 3 Ired. Eq. 226 ; 43 N. Y. S. Ct. 238. Besides, a 
 sub-partner does not receive a certain share of 
 the whole profits of the firm, but only a part 
 of a share thereof ; and he does not receive 
 this part of a share, nor is he entitled to in- 
 terfere with it at all, to say whether it shall 
 be more or less in amount, until it has actually 
 been set out and the time has come for a di- 
 vision between himself and the partner with 
 whom he contracted. He does not draw out 
 of the general concern any of its profits ; he 
 only draws from the profits of one who has 
 previously drawn them from the general part- 
 nership. See 6 Madd, 5 ; 4 Russ. 285 ; 3 
 Ross, Com. Law, 697. If this stranger has 
 caused damage to the partnership by his de- 
 fault, the party who has taken him into the 
 partnership will be liable to the other partners 
 the same as if he had done the damage him- 
 self ; Pothier, Part. n. 93. 
 
 Any number of partners less than the whole 
 may form an independent co-partnership, 
 which, though not strictly a sub-partnership, 
 is entitled to a separate standing in equity. 
 In case of insolvency the subordinate co-part- 
 nership is treated as a distinct concern, and 
 the assets are marshalled accordingly. Conse- 
 quently, although the creditors of the smaller 
 firm are strictly separate creditors when com- 
 pared with the creditors (rf the larger firm ; 
 yet debts owing by one firm to the other are 
 collected on insolvency for the benefit of the 
 creditors of the creditor firm ; Ewell's Ijind. 
 Part. *655 ; 11 Ves. 413 ; 1 B. & P. 539 ; 1 
 Cox, 140. Indeed, one partner may have 
 this independent standing if the trade is dis- 
 tinct; Lind. Part. 4th ed. 1229; Mont. 228. 
 But the debts must arise in the ordinary course 
 of trade ; Lind. Part. 4th ed. 1229 ; 3 M. 
 D. & D, 433. 
 
 Quasi-Partnership. 
 This is simply the case of a man who with- 
 out having any interest in or connection with 
 the business holds himself out or suffers him- 
 self to be held out as a partner ; he is estop- 
 ped to deny his liability as a partner ; 14 Vt. 
 540; 3 Kent, 32, 33; 27 N. H. 252; 2 
 Campb. 802; 2 McLean, 347; 10 B. & C. 
 140 ; 19 Ves. 459 ; 17 Vt. 449 ; 6 Ad. & E, 
 469. This rule of law arises not upon the 
 ground of the real transaction between the 
 partners, but upon principles of general poli- 
 cy, to prevent the frauds to which creditors 
 would be liable if they were to suppose that 
 they lent their money upon the apparent 
 credit of three or four persons, when in fact 
 they lent it only to two of them, to whom, 
 without othere they would have lent nothing; 
 
 2 H. Blackst. 235 ; 3 Kent, 32, 33 ; 6 S. i& 
 R. 259, 333 ; 16 Johns. 40 ; 2 Des. 148 : 2 
 
PARTNERSHIP 
 
 372 
 
 PARTNERSHIP 
 
 N. & M'C. 427 ; Ewell's Lind. Part. "47 
 et leq. 
 
 The term "holding one's self out as part- 
 ner'' imports, at least, the voluntary act of 
 the party holding himself out ; 3 Conn. 324 ; 
 2 Camp. 617; but no particular mode of 
 holding himself out is requisite to charge a 
 party. It may be express and either by di- 
 rect assertion or by authority to a partner to 
 use the stranger's name. It may result from 
 negligence, as a failure to forbid the use of 
 one's name by the firm ; 2 Zab. 372 ; 61 N. 
 y. 456; 41 Penn. 30; Ewell's Lind. Part. 
 *47, and note ; 64 Ind. 545 ; 63 Ga. 98 ; SO 
 Md. 1 ; 32 Ark. 733 ; 53 Ga. 98. 
 
 Holding out is a question of fact ; Ewell's 
 Lind. Part. *53 ; 25 Mo. 341 ; 10 Ind. 
 475. The usual evidence to charge a party 
 in such cases is that he has suffered the use of 
 his name over the shop-door, in printed 
 notices, bills of parcels, and advertisements, 
 or that he has done other acts, or suffered his 
 agents to do acts ; 37 N. H. 9 ; no matter of 
 what kind, sufficient to induce others to be- 
 lieve him to be a partner ; 3 McLean, 364, 
 549 ; 3 Camp. 310 ; 1 Ball & B. 9 ; 4 M. & 
 P. 713 ; 20 N. H. 453, 454 ; 39 Me. 157 ; 55 
 Ga. 116. A person is not relieved from lia- 
 bility though he was induced by the fraud of 
 others to hold himself out as a partner with 
 them. See 5 Bingh. 521 ; 1 Rose, 69. The 
 holding out must have been before the con- 
 tract with the third person was entered into, 
 and must have been the inducement to it ; 7 
 B. & C. 409 ; 10 id. 140 ; 1 F. & F. 344 ; 6 
 Bing. 776; 3 C. B. 32 ; 2 Camp. 617; 8 
 Ala. 560; 67 111. 161 ; 37 Me. 252. 
 
 It is not necessary that the creditor have 
 ■personal knowlege of the individual whose 
 name is used ; 61 N. Y. 456 ; see 1 Sm. 
 Lead. Cas. Engl. ed. 507; 10 B. & C. 140; 
 2 McLean, 347 ; 1 B. & Aid. 11; 8 Ala. , 
 N. 8. 560 ; 7 B. Monr. 456. A person does 
 not become liable as partner because he re- 
 presents that he is willing or intends to become 
 one; 9 B. & C. 632; 15 M. & W. 517. 
 
 One who holds himself out as a partner is 
 responsible as such to strangers even though 
 they know his true relation and that by agree- 
 ment with the partners he is to share no loss ; 
 Ewell's Lind. Part. *48 ; contra, Camp. 
 404, note ; 5 Bro. P. C. 489. How knowl- 
 edge of the terms of the agreement under 
 which parties are associated will affect third 
 persons, see 6 Mete. 93, 94 ; 6 Pick. 372 ; 
 15 Mass. 339 ; 4 Johns. 251 ; 5 Cow. 489 ; 
 28 Vt. 108. 
 
 The Domain. 
 A partnership is primarily a commercial 
 relation. The notion has, however, been gradu- 
 ally extended to include other associations 
 than those for trade merely : e. g. partner- 
 ships between two attorneys at law ; 6 Penn. 
 360 ; 8 Wend. 665 ; 13 Ark. 178. It is .said 
 by Mr. CoUyer that " perhaps it may be laid 
 down genera,lly that a partnership may exist 
 in any business or transaction which is not a 
 
 mere peirsonal office, and for the performance 
 of which payment may be enforced." CoUvep 
 Part. § 56. ' ' 
 
 The early law did not recognize partnet 
 ships for trading in land, because the land 
 was all held by the barons who did not engase 
 in trade. But in modem times, and esS- 
 ally in America, where the social condition^ 
 are different, land is largely held by specula- 
 tors whose operations as partners the law 
 must recognize; 21 Me. 421, 422; 7 Penn 
 165; 10 Cush. 458; 4 Conn. 568 ; 4 Ohio 
 St. 1 ; 64 N. Y. 1. In transferring title to 
 and from the firm the ordinary niles of con. 
 veyancing must be observed. "W^en the title 
 is in all the partners, all must join in the deed- 
 if in the name of one, he alone need execute • 
 Story, Part. § 92, note; 15 Johns. 168; 15 
 Gratt. 11 ; 16 B. Monr. 631 ; 2 Nev. 234. 
 
 Building operations are now upon the eame 
 footing as land speculations ; 4 Cow. 282. 
 But the tradition has been too strong to be 
 impaired as yet in landlord and tenant cases. 
 Farming on shares is no partnership. The 
 owner of land may either receive a share in 
 the produce as rent, or give such a portion to 
 a laborer in lieu of wages ; Lind. Part. Am. 
 ed. *651, *652; 68 Ind. 379. But there 
 may be a partnership in the development of 
 land owned by one ; 69 Ala. 587. 
 
 Firm Property.. 
 
 Partners have, presumptively,, the same in- 
 terest in the stock that they have in the pro- 
 fits; 16 Hun, 163. Their shwes are presumed 
 to be equal both in capital and profits ; E.ireil'v 
 Lind. Part. *676; 795; 23 Oal, 427; 16 
 Hun, 163; 23 Cal. 427. But a joint stock it 
 not essential to a partnership. The partner 
 without capital is then ipterested, not in the 
 fund, but in the adventure; 2 Bingh. 170; 7 
 ^Hun, 425 ; Ewell's Lind. Part. *648, 
 
 Sometimes a partnership exists between 
 parties merely as the managers and disposers 
 of the goods of others ; 4 B. & Aid. 663 ; 15 
 Johns. 409, 422. So, it seems, two persons 
 may be owners in common of property, and 
 also partners in the working and manMenient 
 of it for their common benefit ; 2 C. B. N. 8. 
 367, 363 ; 8 C. & P. 346 ; 16 M. & W. 508; 
 3 Ross, Lead. Cas. 529. 
 
 Whether a partnership includes the capital 
 stock, or is limited to the profit and loss, must 
 be determined from the agreement and inten- 
 tion of the parties ; 21 Me. 120. See 5 Taunt. 
 74 ; 4 B. & C. 867 ; Story, Part. § 26. 
 
 A partner may contribute but the use of 
 his capital, retaining fuU control of the prin- 
 cipal ; and he may charge interest for the use 
 whether profits are earned or not; Ewell's 
 Lind. Part. •786. If, however, the firm 
 funds are expended in repairing and improv- 
 ing the property thus placed at their dispose, 
 it becomes partnership stock; Ewell's Lind. 
 Part. *662, note; 49 Me. 262; 23N. J-M' 
 247 ; 72 Penn. 142. , 
 
 The partnership property consists 01 tne 
 original stock and the additions made to it m 
 
PARTNERSHIP 
 
 373 
 
 PARTNERSHIP 
 
 the course of trade. All real estate purchased 
 for the partnership, paid for out of the funds 
 thereof, and devoted to partnership uses and 
 trusts, whether the legal title is in one or all 
 of the partners, is treated in equity in the 
 same manner as other partnership property 
 until the partnership account is settled and the 
 partnership debts are paid; Story, Part. § 98; 
 
 5 Ves. 189 ; 3 Swanst. 489 ; 10 Cush. 458 ; 4 
 Mete. Mass. 527 ; 6 id. 562 ; 3 Kent, 37 ; 27 
 N. H. 37 ; Ewell's Lind. Part. *642. Leases 
 of real estate tajcen by one partner for part- 
 nership purposes, mines, and trade-marks are 
 held to be partnership property ; 1 7 Ves. 298 ; 
 1 Taunt. 250 ; 5 Ves. 308 ; Story, Part. § 98. 
 The good-will of a business is an asset of the 
 firm. It does not always have a salable value, 
 however; Ewell's Lind. Part. *860; 9 Neb. 
 258; 4 Sandf. Ch. 405; 1 Hoff. Ch. 68; 3 
 Mer. 452, 455 ; 5 Ves; 539. But Chancellor 
 Kent says, ' ' the good- will of a trade is not 
 partnership stock." 3 Kent, 64. The good- 
 will of a professional partnership belongs, in 
 the absence of express stipulations, exclusively 
 to the survivors ; Bissett, Part. 64 ; 3 Madd. 
 64; CoUyer, Part. § 163. See Good-Will. 
 A ship, as well as any other chattel, may be 
 held in strict partnership; 3 Kent, 154; 12 
 Mass. 54; 6 Me. 77 ; 15 id. 427. But ships 
 are generally owned by parties as tenants in 
 common ; and they are not in consequence of 
 such ownership to be considered as partners ; 
 
 6 Me. 77 ; 6 Pick. 120 ; 24 id. 19; 14 Conn. 
 404 ; 14 Penn. 34, 38 ; 8 Gill, 92 ; 47 N. Y. 
 462. The same is true of any other species 
 of property in which the parties have only a 
 community of interest ; Ewell's Lind. Part. 
 *6S etseq., and. note; 8 Exch. 825 ; 21 Beav. 
 536 ; 24 id. 283 ; 2 C. B. N. s. 357. 
 
 Partners hold land by a peculiar title. In 
 one respect it most resembles an ancient joint 
 tenancy. Neither partner can convey title to 
 a moiety of the goods his assignee takes sub- 
 ject to claim of other partner to have firm 
 debts paid out of that fund ; he therefore can 
 assign only his interest, t. e., a moiety of 
 what is left after firm debts paid. Upon this 
 principle depends also the special right of sur- 
 vivorship for the purposes of liquidation. 
 With these qualifications the partner's title at 
 law difiers but slightly from a tenancy in 
 common; Story, Part. §§ 90, 91, 97; 9 Me. 
 28; 5 Johns. Ch. 417. 
 
 A partner has the same title to the sta^ 
 tionary capital of the firm that he has to its 
 product in his hands for sale, but his power 
 over it is less extensive. He can not sell the 
 permanent capital stock. The power of a 
 partner to sell results not from the title, but 
 from the general partnership relation ; 37 
 Penn. 217. 
 
 Partners may of course hold land as part 
 of the firm assets. It has been held that in 
 order to make the land really firm assets the 
 title should be in the partners as a firm, other- 
 wise, the partners would be mere tenants in 
 common, and the land, as to purchasers and 
 creditors, would be the individual estate of the 
 
 partners, regardless of the funds by which it 
 was purchased and the uses to which it was 
 put; 81 Penn. 377; but as to the partners 
 and their representatives, the land would be- 
 long to the firm, in such case ; 5 Mete. Mass. 
 582 ; 89 Penn. 203. The rule is applied to 
 cases of equitable, as well as legal, estates ; 
 70 Penn. 79. In other cases it has been held 
 that where land has been bought with firm 
 money and is used for firm purposes, or where 
 it has been dedicated to the firm, it must be 
 regarded as partnership property without con- 
 sidering the record title ; 64 N. Y. 479 ; 5 
 Mete,. Mass. 562, 582; 55 111. 416; 14 Fla. 
 565 ; 17 Cal. 262. It has been thought ne- 
 cessary to resort to an equitable conversion of 
 firm land into personalty in order to subject it 
 to the rules governing partnership property ; 
 7 J. Baxter, 212; 15 Gratt. 11 ; 74 Penn. 
 391. But this fiction seems unnecessary; see 
 25 Ala. 625.; 3 Stew. (N. J.) 415 ; 2 Edw. Ch. 
 28; 11 Barb. 43. After liquidation, the lands 
 or their surplus proceeds pass as real estate ; 
 3 Stew. (N. J.) 415; 7 J. Baxt. 212; 11 
 Barb. 43 ; 74 Penn. 391 ; 6 Yerg. 20. If 
 one partner buys land with firm money and 
 takes title in his own name, a resulting trust 
 arises to the firm; 21 Penn. 257 ; 39 id. 536 ; 
 Ewell's Lind. Partn. *643. 
 
 Marshalling Assets. 
 
 The firm is not a corporation, and hence firm 
 creditors are in theory separate creditors as 
 well. But in administering bankrupt estates 
 equity has established the "rule of conve- 
 nience" that firm and separate creditors shall 
 have priority upon, and be confined to, the 
 firm and separate funds respectively. A sur- 
 plus upon a separate fund is divided among 
 firm creditors pro rata ; a surplus upon a firm 
 fund is divided among the separate creditoi-s 
 of the various partners in proportion to the 
 shares of the partners therein ; Ewell's Lind. 
 Part. *655, *1053, *1054 and notes; Story, 
 Part. § 376, note; Pars. Part. *480 ; 67 
 Ind. 485 ; 50 Miss. 300 ; 44 Penn. 503 ; 
 13 N. J. Eq. 126; 41 N. H. 12; 35 Vt. 
 44; 94 111. 271; 28 Ga. 371; 29 Ala. 172. 
 If there is no firm fund, the firm creditors 
 come in on an equal footing with separate 
 creditors against th« separate estate ; Story, 
 Part. § 380; Lind. Part. 4th ed. 1234; 10 
 Cush. 592; contra, 15 Ind. 124; 46 N. H. 
 188. A very slight firm fund over and above 
 costs will suffice to exclude firm creditors from 
 the separate estate ; five shillings has been 
 said to be enough ; 7 Am. L. Beg. 499 ; one 
 dollar and a quarter was considered too little ; 
 Pars. Part. *483, note ; Lind. Part. 4th ed. 
 1235. A solvent partner, if living, is equiva- 
 lent to a &na fund ; 8 Conn. 584 ; Story, 
 Part. § 380; Lind. Part. 4th ed. 1234. 
 
 But though there is no separate estate, 
 separate creditors can not come against the 
 joint estate; Lind. Part. 4th ed. 1224. 
 Various explanations have been ofiered for 
 this rule. Sometimes it is called a " rule of 
 convenience ;" sometimes a fundamental prin- 
 
PARTNERSHIP 
 
 374 
 
 PARTNERSHIP 
 
 ciple of equity; Ewell's Lind. Part. *655, 
 *1053; 22 Pick. 450; 5 Johns. Ch. 60; 
 Story, Part. § 377 ; 5 S. & R. 78 ; 44 Penn. 
 503. Sometimes it is said to depend on the 
 principle of- destination ; the partners by 
 gathering together a firm fund have dedicated 
 It to the firm creditors. Upon this theory, 
 the partnership stock becomes a trust fund. 
 The firm creditors occupy a commanding po- 
 sition and restrain even the partners in dealing 
 with the property; Ewell's Lind. Part. 
 *655, note; 3 Biss. 122; 41 Barb. 307 ; 52 
 N. y. 146 ; 5 How. Pr. 35. Usually it is 
 declared to be the outgrowth of the partner's 
 equity, ». e. his right to have firm funds ap- 
 plied first to the pavment of firm debts ; 
 Ewell's Lind. Part. *6'55, note ; 7 Md. 398 ; 
 32 Gratt. 481 ; 4 Bush, 25 ; 4 R. I., 173 ; 7 
 B. Monr. 210. Consequently where the part- 
 ner gives up this right, the firm creditor loses 
 his priority ; Ewell's Lind. Part. *655 ; 3 
 Ired. L. 213; 69 Tenn. 167; 2 Disn. 286; 
 1 Woods, 127 ; 32 Gratt, 481. If insolvent 
 partners divide the firm fund among their 
 separate creditors in proportion to the interest 
 of each in the partnership, firm creditors can 
 not object; 39 Penn. 369 ; 77 N. Y. 195. If 
 insolvent partners assign away firm funds for 
 the benefit of the separate creditors of one 
 only, firm creditors may object, at least to 
 the action of the other partner ; 20 N. H. 
 462 ; 20 How. Pr. 121. As a general rule, 
 insolvency fixes the position of the different 
 funds. A debt to a partner by the firm can 
 not- be collected for the benefit of separate 
 creditors ; a debt of a partner to the firm can 
 not be collected for the benefit of firm credit- 
 ors ; because a man can not prove against his 
 own creditors ; 3 P. Wms. 180 ; 4 H. & 
 McH. 167 ; Lind. Part. 4th ed. 1236 et seq. 
 What one partner owes his co-partner inde- 
 pendently of the firm can be collected from 
 the separate estate of the debtor for the bene- 
 fit of the separate estate of the creditor : but 
 this will not be allowed unless the situation is 
 such that the firm creditors can derive no 
 benefit even indirectly from the enforcement 
 of the claim, i. e. there must be no surplus to 
 so to them; Lind. Part. 4th ed. 1244; 4 De 
 G. J. & S. 551. Contra, where both part- 
 ners owe the firm one-half of the excess of one 
 debt over the other it is payable to the firm 
 creditors out of the estate of the greater debt- 
 or ; 55 Penn. 252. Partners, before insol- 
 vency, may, by an executed agreement, 
 change firm into separate property. Firm 
 creditors have no lien to prevent the altera- 
 tion ; e. g. where one partner sells out to 
 the others the fund becomes primarily liable 
 to the claims of the creditors of the new firm; 
 20 N. J. Eq. 13 ; 6 Bosw. 533 ; 19 Ga. 190 ; 
 9 Cush. 553 ; 35 Iowa, 323 ; 21 Penn. 77 ; 
 6 Ves. 119. 
 
 Equity will not interfere to embarrass a 
 vested legal right. Therefore if a firm credi- 
 tor levies on separate estate, his execution has 
 priority over the subsequent execution of a 
 separate creditor ; 24 Ga. 625 : 22 Pick. 450 ; 
 
 9N. J.Eq. 363; 17 N. Y. 300. Ifasepa. 
 rate creditor levies on firm property, his levy 
 is subject to the paramount right of the cL 
 partner, and he sells nothing but his debtor's 
 interest. An execution against the firm 
 though subsequent in time, has priority, bel 
 cause it attaches this paramount right of the 
 co-partner. But a firm creditor, without a 
 legal lien has, in such case, no standiDg- 22 
 Cal. 194 ; 17 N. J. Eq. 269; 5 Johns Ch 
 417; 9 Me. 28. But where there is an exe- 
 cution against each partner and a subsequent 
 execution against the firm, and the sheriff 
 seizes and sells firm goods under the three 
 the proceeds are given first to the joint 
 creditor, and the remainder to the separate 
 creditors in proportion to partner's interest; 
 29 Penn. 90. So in the case of judgmenta 
 against real estate. A separate judgment is 
 no lien on the firm real estate but only on the 
 partner's interest. But a firm judgment is a 
 lien on partner's separate real estate, and takes 
 priority over a subsequent separate judgment; 
 Ewell's Lind. Part. *1054 and note; 17N. 
 Y. 300 ; 46 Iowa, 461. 
 
 Duration. Prima facie every partnership 
 is determinable at will. But it may be entered 
 into for a definite term by agreement express- 
 or implied ; Ewell's Lind. Part. *218. 
 
 A partnership at will is presumed to con- 
 tinue so long as the parties are in life and of 
 capacity to continue it; 1 Greenl. Ev. § 42; 
 Story, Part. § 271 ; 9 Humphr. 750. A 
 partnership for a term is presumed to continue 
 during the term, provided the parties are in 
 life and of legal capacity to continue it. See 
 7 Mo. 29 ; Collyer, Part. § 105. If a part- 
 nership be continued by express or tacit con. 
 sent after the expiration of the prescribei^ 
 period, it will he presumed to continue upoil;v 
 the old terms, but as a partnership at will; 
 Ewell's Lind. Part. *219 ; 17 S. & K. 165. 
 But in no case will the law presume a partner- 
 ship to exist beyond the life of the parties ; 1 
 Swanst. 521 ; 1 Wils. Ch. 181. When a 
 partnership has been entered into for a definite 
 term, it is nevertheless dissolved by death 
 within the term ; Story, Part. § 195 ; Ewell's 
 Lind. Part. *832. The delectus pmona is 
 so essentially necessary to the constitution of 
 a partnership that even the executors or other 
 representatives of partners themselves do not, 
 in their capacity of executors or representa- 
 tives, succeed to the state and condition of 
 partners; 7 Pick. 237, 238 ; 3 Kent, 55, 56; 
 42 111. 342; 46 Mo. 197. The civilians car- 
 ried this doctrine so far as not to permit it to 
 be stipulated that the heirs or executors ol 
 partners should themselves be partners! 
 Domat, lib. 1, tit. 8, s. 2 ; Pothier, Part. n. 
 145 ; though Pothier thinks it binding. 
 
 At the common law, the representatives ot 
 a deceased partner vaa.y be made partneisUn 
 his stead either by original agreement or bj 
 testamentary direction ; Ewell's Lind. Fart. 
 *2.=il ; 47 Tex. 481 ; 8 Am. L. Kec. 641. 
 Clauses providing for the admission into the 
 firm of a deceased partner's representatives 
 
PARTNERSHIP 
 
 375 
 
 PARTNERSHIP 
 
 will, in general, be construed as giving them 
 an option to become partners, and not as con- 
 stituting them partners absolutely; 7 Jarm. 
 Conv. 120 i 1 McCl. & Y. 569 ; 2 Russ. 62. 
 In any event it must be a new partnership ; 
 Pars. Part. *439 ; contra, 46 Conn. 136. 
 
 Only the fund already invested or directed 
 to be invested by the testator is subject to the 
 claims of new creditors; 15 Gratt. 11; 10 
 Ves. 110, 121, 122 ; 47 Tex. 481 ; the direc- 
 tion to charge the general assets must be clear 
 and unambiguous ; 2 How. 577; 8 Am, L. 
 Rec. 641 ; 48 Penn. 275. 
 
 The rule in England is clear that when an 
 executor undertakes to participate in the busi- 
 ness, whether in consequence of a testamen- 
 tary direction or otherwise, he becomes per- 
 sonally liable to creditors as a partner, in 
 addition to the liability of the estate. The 
 common law relation of partnership will not 
 admit of a qualified liability ; Ewell's Lind. 
 Part. •1060, note; 10 Ves. 119; 11 Moo. 
 P. C. 198. But simply taking profits will 
 not charge the executor; L. R. 7 Ex. 218. 
 But in America, some authorities have de- 
 clared that the executor is not personally liable 
 when the testator has directed him to continue 
 the business, but only when he does so of his 
 own motipn ; 4 Ala. 588 ; 33 Md. 382 ; 39 
 How. Pr. 82 ; 48 Penn. 275 ; contra, for 
 personal liability of executor ; 8 Conn. 684. 
 A simple direction to allow a fund to remain 
 in a partnership may be construed as a loan 
 to the survivors ; Ewell's Lind. Part. *1064; 
 9 Hare, 141. 
 
 Dissolution. A partnership may be dis- 
 solved ; — 
 
 First, hy the act of the parties : as, by 
 their mutual consent; Story, Part. § 268; 3 
 Kent, 54; Pothier, Part. n. 149; and where 
 no specified period is limited for the continu- 
 ance of the partnership, either party may dis- 
 solve it at any time ; 4 Russ. 260 ; 1 Swanst. 
 608; 3 Kent, 53, 54; Story, Part. §§ 84, 
 272,273. See 6 Ark. 280; Ewell's Lind. 
 Part. *220, note. Whether a partnership for 
 a certain time can be dissolved by one partner 
 at his mere will and pleasure before the term 
 has expired, seems not to be absolutely and 
 definitively settled ; Story, Part. § 275. In 
 favor of the right of one partner in such cases, 
 see 3 Kent, 56; 17 Johns. 525; 19 id. 538 ; 
 1 Hofi'm. Ch. 534; 3 Bland, Ch. 674. 
 Against it, see Story, Part. §§ 276, 276 ; 5 
 Ark. 281 ; 4 Wash. C. C. 234 ; Pothier, 
 Part. 152 ; Ewell's Lind. Part. *222, note ; 
 20 N.J. Eq. 172. See, also, 15 Me. 180; 
 1 Swanst.' 496 ; 16 Ves. 56. As against 
 third persons, a partner may certainly with- 
 draw from a partnership at his pleasure ; 3 C. 
 B. N. s. 561. 
 
 Second, hy the act of God: as, by the 
 death of one of the partners ; and this oper- 
 ates from the time of the death ; 3 Mer. 
 610; 6 Cow. 441; 6 Conn. 184; 2 How. 
 560 ; 7 Ala. N. s. 19 ; 3 Kent, 55, 56 ; Story, 
 Part. §§ 317, 319; 7 Pet. 594; 17 Pick. 519; 
 
 5 Gill, 1 ; 40 Mich. 343 ; unless there be an 
 express stipulation to the contrary ; 3 Madd. 
 251 ; 2 How. 660 ^ Ewell's Lind. Part. *231, 
 note ; 42 111. 342. 
 
 A partnership dissolved by the death of 
 one of the partners is dissolved as to the 
 whole firm ; 7 Pet. 586, 594 ; and the reason 
 given for this rule is applicable not only to 
 dissolutioa by death, but to every species of 
 dissolution; Story, Part. §§ 317, 318; 
 Ewell's Lind. Part. *231. 
 
 2'hird, by the act of law : as, by the bank- 
 ruptcy of one of the partners ; 4 Burr. 2174 ; 
 Cowp. 448 ; 6 Ves. 126 ; 5 Maule & S. 340 ; 
 Ewell's Liad. Part. *224 ; 45 Miss. 703 ; 59 
 Ala. 697. 
 
 Fourth, hy a valid assignment of all the 
 partnership effects for the benefit of creditors, 
 either under insolvent acts; CoUyer, Part. 
 § 112 ; or otherwise ; 41 Me. 373 ; but this 
 13 only prima facie evidence of dissolution 
 which other circumstances may rebut; 1 Dall. 
 380; by a sale of the partnership effects under 
 a separate execution against one partner ; 
 Cowp. 446 ; 2 V. & B. 300 ; 3 Kent, 69. 
 But the mere insolvency of one or all of the 
 members of a partnership, without a suspen- 
 sion or judicial process, etc., does not of itself 
 operate a dissolution ; 24 Pick. 89. See 1 
 Bland, Ch. 408; 2 Ashm. 306; Ewell's 
 Lind. Part. *223 ; 28 Penn. 279. 
 
 Fifth, by the civil death of one of the part- 
 ners ; Pothier, Part. h. 147. But the ab- 
 sconding of a party from the state does not 
 of itself operate a dissolution ; 24 Pick. 89. 
 See Story, Part. § 298. 
 
 Sixth, by the breaking out of war between 
 two states in which the partners are domiciled 
 and carrying on trade; 16 Johns. 438; 3 
 Kent, 62; 3 Bland, Ch. 674; 60 N. Y. 166. 
 
 Seventh, hy the marriage of a feme sole 
 partner; 4 Russ. 260; 3 Kent, 66; Ewell's 
 Lind. Part. *230. 
 
 Eighth, by the extinction of the subject- 
 matter of the joint business or undertaking ; 
 16 Johns. 401, 402; Pothier, Part. nn. 5, 
 140-143 ; and hy the completion of the busi- 
 ness or adventure for which the partnership 
 was formed ; Story, Part. § 280. 
 
 Ninth, by the termination of the period for 
 which a partnership for a certain time was 
 formed; CoUyer, Part. § 119. 
 
 Tenth, by the assignment of the tohole of 
 one partner's interest either to his co-partner 
 or to a stranger ; 3 Kent, 59 ; Story, Part. 
 §§ 307, 308; 4 B. & Ad. 175; 17 Johns. 
 526 ; 1 Freem. Ch. 231 ; 8 W. & S. 262 ; 
 where it does not appear that the assignee 
 acts in the concern after the assignment ; 17 
 Johns. 525 ; 8 W^end. 442 ; 5 Dana, 213 ; 1 
 Whart. 381 ; 2 Dev. Eq. 481. But inEng- 
 land this can occur only in partnerships at 
 will. In partnerships for a term, assignment 
 is a ground for dissolution by remaining co- 
 partners, but probably not by the transferee. 
 In America, the ta-ansferee always has a right 
 to an account; Ewell's Lind. Part. *230; 
 
PARTNERSHIP 
 
 376 
 
 PARTNERSHIP 
 
 60 Ala. 226 ; 50 Cal. 615. But see 14 Pick. 
 322, where it was held that such an assignment 
 would not ipso facto worka dissolution. 
 
 Eleventh, by the award of arbitrators ap- 
 pointed under a clause in the partnership 
 articles to that effect ; see 1 W. Blackst. 475 ; 
 4 B. & Ad. 172. 
 
 A partnership for a term may be dissolved 
 before the expiration of the term, by the de- 
 cree of a court of equity founded on the wil- 
 ful fraud or other gross misconduct of onfe of 
 the partners ; Collyer, Part. § 296 ; 4 Beav. 
 502; 21 id. 482; 2 V. & B. 299; 5 Ark. 
 270 ; so on his gross carelessness and waste in 
 the administration of the partnership, and 
 his exclusion of the other partners from their 
 just share of the management ; 1 J. & W. 
 592 ; 2 id. 206 ; 6 Ark. 278 ; 2 Ashm. 309, 
 310; 3 Ves. 74; so on the existence of vio- 
 lent and lasting dissensions between the part- 
 ners ; 1 Iowa, 537; Collyer, Part. § 297; 
 see 4 Sim. 11 ; Story, Part. § 288 ; 4 Beav. 
 503 ; 14 Ohio, 315 ; 52 How. Pr. 41 ; where 
 these are of such a character as to prevent the 
 business from being conducted upon the stipu- 
 lated terras; 3 Kent, 60, 61; Collyer, Part. 
 § 297 ; and to destroy the mutual confidence 
 of the partners in each other ; 4 Beav. 502 ; 
 21 id. 482; 20 N. J. Eq. 172. But a part- 
 ner cannot, by misconducting himself and 
 rendering it impossible for his co-partners to 
 act in harmony with him, obtain a dissolution 
 on the ground of the impossibility so created 
 by himself ; 21 Beav. 493, 494; 3 Hare, 387 ; 
 84 m. 121. A partnership may be dissolved 
 by decree when its business is in a hopeless 
 State, its continuance impracticable, and its 
 property liable to be wasted and lost ; 3 Kent, 
 60 ; 1 Cox, 212 ; 2 V. & B. 290 ; 16 Johns. 
 491 ; 3 K. & J. 78 ; 13 Sim. 495 ; 8 Oreg. 
 84. 
 
 The confirmed lunacy of an active partner 
 is sufiicient to induce a court of equity to de- 
 cree a dissolution, not only for the purpose of 
 protecting the lunatic, but also to relieve his 
 co-partners from the difficult position in which 
 the lunacy places them ; see 1 Cox, Ch. 107 ; 
 1 Swanst. 514, note ; 2 My. & K. 125 ; 6 
 Beav. 324 ; 2 Kay & J. 441 ; 3 Kent, 58 ; 3 
 Y. & C. 184. The same may be said of every 
 other inveterate infirmity, such as palsy, or 
 the like, which has seized upon one of the 
 partners and rendered him incompetent to act 
 where his personal labor and skill were con- 
 tracted for; Pothier, Part. n. 152; 3 Kent, 
 62. But lunacy does not itself dissolve the 
 firm, nor do other infirmities ; 3 Kent, 58 ; 
 , Story, Part. § 295 ; 3 Jur. 358. It is, how- 
 ever, contended by Mr. Justice Story and by 
 Parker, C. J., that a clear case of insanity 
 ought to effect that result; Story, Part. § 
 295 ; 10 N. H. 101. An inquisition of lunacy 
 found against a member dissolves the firm ; 6 
 Humph. 85. The court does not decree a 
 dissolution on the ground of lunacy except 
 upon clear evidence that the malady exists 
 and is incurable ; 3 Y. 8e C. 184 ; 2 K. & J. 
 441. A temporary illness is not sufficient ; 2 
 
 Ves. Sell.; 84.^ 1 Cox, 107. A dissolution 
 by the (Jb<irt blii the ground of insanity dates 
 from the decree and not from a prior day • i 
 PhiU. 172; 2 Coll. 276; 1 K. & J. 765. 
 
 Actual notice of dissolution must he brought 
 home to persons who have been in the habit 
 of dealing with the firm ; but as to all persons 
 who have had no previous dealings TPith the 
 firm, notice fairly given in the public news. 
 papers is deemed sufficient ; Collyer, Part. 
 §§ 532-534. This notice is necessary to ter- 
 minate the agency of each partner, and, con- 
 sequently, his powers and liabilities as a mem. 
 ber ; 68 N. Y. 314 ; 25 Gratt. 321 ; 47 Wise. 
 261 ; 67 lU. 106 ; 83 Penn. 148 ; 7 Price 
 193; 1 Camp. 402. ' 
 
 It is not necessary to give notice of the re- 
 tirement of a dormant partner from the firm 
 if the fact of his being a partner he unknown 
 to all the creditors of the firm ; if it be known 
 to some, notice to those must be given, but 
 that will be sufficient ; 1 Mete. Mass. 19 ; 1 
 B. & Ad. 11 ; 4 id. 179; 5 B. Monr. 170; 
 36 Penn. 325 ; 37 HI. 76 ; see 35 Ala. 242; 
 87 111. 281; 3N. Y. 168. 
 
 Notice of the dissolution is not necessary, 
 in case of the death of one of the partners, 
 to free the estate of the deceased partner from 
 further liability ; 3 Kent, 63 ; 3 Mer. 614; 
 17 Pick. 519; Ewell's Lind. Part. *404; 25 
 Gratt. 321 ; nor is notice, in fact, necessary 
 in any case where the dissolution takes place 
 by operation of law; 3 Kent, 63, 67; 15 
 Johns. 57 ; 16 id. 494 ; Ewell's Lind. Part. 
 *405 ; Cowp. 445 ; 9 Exch. 145. 
 
 Effect of dissolution. The effect of disso- 
 lution, as between the partners, is to termi- 
 nate all transactions between them as partners, 
 except for the purpose of taking a genetw 
 account and winding up the concern ; 1 Penn; 
 274 ; 3 Kent, 62 et seq. As to third persdns, 
 the effect of a dissolution is to absolve the 
 partners from all liability for future transac- 
 tions, but not for past transactions of the firm; 
 53 Miss. 280; 61 Cal. 530; 61 Ind. 225; 
 57 111. 215 ; 3 Kent, 62 et seq. ; 2 Gush. 175; 
 3 M'Cord, 378; 4 Munf. 215; 6 Mas. 66; 
 Harp. 470 ; 4 Johns. 224 ; 41 Me.' 376. 
 
 It is said that a firm, notwithstanding its 
 dissolution, continues to exist so far as may 
 be necessary for the winding up of its busi- 
 ness ; 11 Ves. 5 ; 15 id. 227 ; 16 id. 57; 2 
 Russ. 242 ; Ewell's Lind. Part. HU. The 
 power of the partners subsists for many pur- 
 poses after dissolution : among these are— /rs(, 
 the completion of all the unfinished engage 
 ments of the partnership ; second, the con. 
 version of all the property, means, and assets 
 of the partnership existing at the time of the 
 dissoliition, for the benefit of those who were 
 
 partners, according to their respective shares; 
 third, the application of the partnership fmas 
 to the payment of the partnership debts; 
 Story, Part. §826; 3 Kent, 57; 17 PA 
 519. But although, for the purposes of wind- 
 ing up the concern and fulfilling engagements 
 that could not be fulfilled during its existence, 
 the power of the pai-tners certainly subsists 
 
PARTURITION 
 
 877 
 
 PASS 
 
 even after diaaolution, yet, legally and strictly 
 sneaking, it subsists for those purposes only ; 
 15 Ves. 227 ; 5 M. & G. 504 ; 4 M. & W. 
 461, 462 ; 10 Hare, 453 ; 4 De G. M. & G. 
 542 ; 61 N. Y. 222 ; 49 Iowa, 177 ; 45 Penn. 
 
 Whether a dissolution of a partnership is 
 per se a breach of a contract by the firm to 
 employ a person in their service is question- 
 able; 3H. &N. 931. 
 
 PARTURITION. The act of giving birth 
 to a child. See Birth. 
 
 PARTUS (Lat.). The child just before 
 it is born, or immediately after its birth. 
 
 Offspring. See Maxims, Partus sequitur, 
 etc. 
 
 PARTY. See Parties. 
 
 PARTY-JURY. A jury de medietate 
 Unguce, which title see. 
 
 PARTY-WALL. A wall erected on the 
 line between two adjoining estates, belonging 
 to different persons, for the use of both estates. 
 2 Bouvier, Inst. n. 1615. 
 
 The phrase ordinarily means a wall of 
 which the two adjoining owners are tenants in 
 common. Emden, Building Leases, etc., 285. 
 
 There can be no available objection to the 
 principle upon which a law of party- walls is 
 based. It has constituted a part of the law of 
 France for ages. The principle is no inva- 
 sion of the absolute right of property, for that 
 absolute implies a relative, etc. Per Lowrie, 
 J., in 23 Penn. 36. 
 
 "The words party wall appear to me to 
 express a meaning rather popular than legal, 
 and they may, I think, be used in four 
 different senses. They may mean, first, a 
 wall of which the two adjoining owners are 
 tenants in common, which is the most com- 
 mon and the primary meaning of the term. 
 In the next place the term may be used to 
 signify a wall divided longitudinally into two 
 strips, one belonging to each of the neigh- 
 boring owners. Then, thirdly, the term may 
 mean a wall which belongs entirely to one 
 of the adjoining owners, but is subject to 
 an easement or right in the other to have 
 it maintained as a dividing wall between 
 the two tenements. The term is so used in 
 some of the building acts. Lastly, the term 
 may designate a wall divided longitudinally 
 into two moieties, each moiety being subject 
 to a cross-easement in favor of the owner of 
 the other moiety." 14 Ch. Div. 192. 
 
 Party- walls are generally regulated by acts 
 of the local te^slatures. The principles of 
 these acts generally are that the wall shall be 
 built equally on the lands of the adjoining 
 owners, at their joint expense, but when only 
 one owner wishes to use such wall it is built 
 at his expense, and when the other wishes to 
 make use of it he pays one-half of its value. 
 Each owner has a right to place his joists in 
 it and use it for the support of his roof. See 
 4 Sandf. 4S0 ; 24 Mo. 69 ; 12 La. An. 785. 
 When the party-wall has been built, and the 
 adjoining ownei; is desirous of having a deeper 
 
 foundation, he has a right to undermine such 
 wall, using due care and diligence to prevent 
 any injury to his neighbor ; and, having done 
 so, he is not answerable for any consequential 
 damages, which may ensue ; 17 Johns. 92 ; 12 
 Mass. 220 ; 2 2J. H. 534. See 1 Dall. 346 ; 
 6 S. & R. 1. 
 
 When such a wall exists between two build- 
 ings, belonging to different persons, and one 
 of them takes it down with his buildings, he 
 is required to erect another in its place in a 
 reasonable time and with the least inconveni- 
 ence ; the other owner must contribute to the 
 expense, if the wall required repairs, but 
 such expense wUl be limited to the costs of 
 the old wall; 3 Kent, 436; 6 Denio, 717. 
 When the wall is taken down, it must be done 
 with care ; but it is not the duty of the person 
 taking it down to shore up or prop the house 
 of his neighbor to prevent it from falling. If, 
 however, the work be done with negligence, 
 by which injury accrues to the neighboring 
 house, an action will lie ; 1 M. & M. 362 ; 15 
 N. Y. 601. If one tenant in common of a 
 party-wall excludes the other from the use of 
 it by placing obstacles in it, the only remedy 
 is to remove the obstruction ; 14 Ch. Div. 
 192. 
 
 Where the owner of two contiguous lots 
 erects a brick messuage, with a division 
 wall, and sells to different purchasers, the 
 wall is not a party-wall ; 2 Miles, 247. 
 The right to use a party- wall is not lost by 
 lapse of time, even seventy-five years ; 1 
 Phila. 366. A party- wall must be built with- 
 out openings ; 61 Penn. 118 ; 51 Tex. 480; 
 s. c. 32 Am. Kep. 627. A party-wall can 
 only be built for mutual support ; painting a 
 sign on it is unlawful ; 2 W. N. C. 333. The 
 principle of party- walls is based upon mutual 
 benefit, and does not extend to the interior 
 of lots where the adjoining owner cannot be 
 expected to build ; 2 Pears. 324. Where one 
 built a party- wall, which was defective and 
 fell over, injuring the adjoining premises, he 
 was held liable to the owner of the premises ; 
 125 Mass. 232; s. c. 28 Am. Rep. 224. 
 Where a building having a party- wall is de- 
 stroyed by fire, leaving the wall standing, the 
 easement in the wall ceases ; 57 Miss. 746. 
 
 Consult Washb. Easem. 2 Washb. R. P. ; 
 4 C. & P. 161; 9 B. & C. 725; 3 B. & 
 Ad. 874 ; 2 Ad. & E. 493 ; 1 Cr. & J. 20 ; 
 4 Paige, Ch. 169 ; 1 Pick. 434 ; 12 Mass. 220. 
 
 PARVUM CAPE. See Petit Cape. 
 
 PASS. A certificate given to a slave, by 
 his master or mistress, in which it is stated 
 that he is permitted to leave his home with 
 their authority. The paper on which such 
 certificate is written. 
 
 In Practice. To be given or entered : as, 
 let the judgment pass for the plaintiff. 
 
 To become transferred : thus, the title to 
 goods passes by the sale whenever the parties 
 have agreed upon the sale and the price, and 
 nothing remains to be done to complete the 
 agreement; 1 Bouvier, Inst. n. 939. 
 
PASS-BOOK 
 
 378 
 
 PATENT 
 
 To decide upon. When a jury decideupon 
 the rights of the parties, which are in issue, 
 they are said to pass upon them. 
 
 PASS-BOOK. In Mercantile Law. A 
 
 book used by merchants with then: customers, 
 in which an entry of goods sold and delivered 
 to a customer is made. 
 
 It is kept by the buyer, and sent to the mer- 
 chant whenever he wishes to purchase any arti- 
 cle. It ought to be a counterpart of the mer- 
 chant's books, as far as regards the customer's 
 account. 
 
 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 state- 
 ment 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 D. & C. 
 '634; 2M.&W. 2. 
 
 PASSAGE-MONEY. The sum claim- 
 able for the conveyance of a person, with or 
 without luggage, on the water. 
 
 The difference between freight and passage- 
 money is this, that the former is claimable for 
 the carriage of goods, and the latter for the car- 
 riage of the person. The same rules which gov- 
 ern the claim for freight affect that for passage- 
 money ; 3 Chitty, Com. Law, 424 ; 1 Pet. Adm. 
 126 ; 3 Johns. 335. See Common Cabbiebb of 
 Passengeks. 
 
 PASSENGER. One who has taken a 
 place in a public conveyance for the purpose 
 of being transported from one place to an- 
 other. One who is so conveyed from one 
 place to another. 
 
 Any one may become a passenger by ap- 
 plying for transportation to a earner of pas- 
 sengers. Every one holding himself out as a 
 carrier of passengers must receive and carry 
 such persons, unless he Can show legal excuse 
 for not so doing. Drunkenness, refusal to 
 pay fare, the fact that there is no room in the 
 conveyance, or that the person wishing a 
 passage is affected with a contagious disease, 
 or is fleeing from justice, or enters the carrier' s 
 conveyance with the intention of committing 
 a crime, have all been held sufficient to excuse 
 a carrier from receiving a person as a passen- 
 ger; 11 Allen, 304; 4 Dill. 321; Thomp. 
 Carr. of Pass. 29 ; 1 Blatchf. 569. 
 
 The relation of carrier and passenger can 
 be created by the exhibition of a bona fide 
 intention on the part of the passenger. Thus 
 going into the depot of a railroad company 
 and waiting for the train has been held suffi- 
 cient to make a person a passenger, and to 
 make the company responsible for his treat- 
 ment as such'; 40 Barb. 546. 
 
 The carrier may make reasonable rules for 
 the conduct of passengers, and all such rules 
 the passengers are bound to obey ; 6 Mich. 
 620 ; Thomp. Carr. of Pass. 306. 
 
 Carriers of passengers are not like carriers 
 of goods, liable for all injuries except those 
 arising from act of God or the public enemy. 
 They are not responsible for injuries happen- 
 ing to the person of a passenger by mere 
 accident, as by fire or robbery, without fault 
 
 on their part. They are liable only for want 
 of due care or skill ; 10 N. H. 481. But in 
 the matter of care and foresight the law holds 
 them to a strict account, and makes them re- 
 sponsible for every slight neglect ; 11 Minn 
 296; 23 111. 357; 36 ll. Y. 378; 13 Conn; 
 319. In regard to the personal baggage of 
 passengers, carriers of passengers are hdd to 
 the same strict liability as carriers of goods- 
 19 Wend. 234. ' 
 
 See Negligenck; Baggage; Ticket. 
 
 Full prcJvisiona for the health and safety of 
 passengers by sea have been made by the 
 United States laws. See Act of Congr. May 
 17, 1848, 11 U. S. Stat, at Large, 127; 
 March 2, 1847, 11 id. 149 ; January 31, 1848' 
 11 id. 210. See Gilp. 334. ' 
 
 PASSIVE. All the sums of which one ig 
 a debtor. 
 
 It is used in contradistinction to active. 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. 
 
 PASSPORT (Fr. passer, to pass, fori, 
 harbor or gate). In Maritime Lavr. A 
 paper containing a permission from tlie neu- 
 tral state to the captain or master of a ship or 
 vessel to proceed on the voyage proposed. -It 
 usually contains his name and residence, the 
 name, property, description, tonnage, and 
 destination of the ship, the nature and quan- 
 tity of the cargo, the place from whence it 
 comes, and its destination, with such other 
 matters as the practice of the place requires. 
 
 It is also called a sea-6rie/, or sea-letter. Bnt 
 Marshall distinguishes sea-letter from paBsport, 
 which latter, he says, is pretended to protect the 
 ship, while the former relates to the cargo, des- 
 tination, etc. See Jacobs. Sea-Laws, 66, note. 
 
 This document is indispensably necessaijin 
 time of war fo9 the safety of every neutral vessel f 
 Marsh. Ins. b. 1, c. 9, s. 6, 317, 406 6. 
 
 A M^terranean pass, or protexition against 
 the Barbary powers. Jacobs. Sea-Laws, 66, 
 note; Act of Congr. 1796. 
 
 A document granted in time of war to pr(V 
 tect persons or property from the general ope- 
 ration of hostilities. Wheat. Int. Law, 475; 
 1 Kent, 161 ; 6 Wheat. 3. 
 
 In most countries of continental Europe 
 passports are given to travellers. These are 
 intended to protect them on their journey 
 from all molestation while they are obedient 
 to the laws. The secretary of state may 
 issue, or cause to be issued in foreign countnes 
 by such diplomatic or consular officers of the 
 United States, and under such rules as the 
 president may prescribe, passports, but only 
 to citizens of the United States; E. S. §§ 
 4075-4076. See 1 Kent, 162, 182; 9 Pet 
 692; Merlin, R6pert. 
 
 PASTURES. Lands upon which beasts 
 feed themselves. By a grant of pastures the 
 land itself passes. 1 Thomas, Co. Litt. 202. 
 
 PATENT. A grant of some privilege, 
 property, or authority, made by the .govern- 
 ment or sovereign of a country to one or more 
 individuals. Phillips, Pat. 1. 
 
PATENT 
 
 S79 
 
 PATENT 
 
 As the term was originally used in Eng- 
 land, it signified certain written instruments 
 emanating from the king and sealed with the 
 great seal. These instruments conferred 
 grants of lands, honors, or franchises ; they 
 were called letters patent, from being deliv- 
 ered open, and by way of contradistinction 
 from instruments like the French lettres de 
 cachet, which went out sealed. 
 
 In the United States, the word patent 
 is sometimes understood to mean the title- 
 deed by which a government, either state or 
 federal, conveys its lands. But in its more 
 usual acceptation it is understood as referring 
 to those instruments by which the United 
 States secures to inventors for a limited time 
 the exclusive use of their own inventions. 
 
 The granting of exclusive privileges by means 
 of letters patent was a power which for along 
 time was greatly abused by the sovereigns of 
 England. The sole right of dealing in certain 
 commodities was in that manner conferred upon 
 particular individuals, either as a matter of royal 
 favor or as a means of replenishing the royal 
 treasury. These exclusive privileges, which were 
 termed monopolies, became extremely odious, 
 and, at an early date, met with the most deter- 
 mined resistance. One of the provisions of 
 Magna Charta was Intended to prevent the 
 granting of monopolies of this character ; and 
 subsequent prohibitions and restrictions were 
 enacted by parliament even under the most ener- 
 getic and absolute of their monarchs. See Hal- 
 lam, Const. Hist., Harp. ed. 153, 305 ; 7 Lin- 
 gard. Hist. Eng. Dolman's ed. 247, 380 ; 9 id. 183. 
 
 Still, the unregulated and despotic power of 
 the crown proved, in many instances, superior 
 to the law, until the reign of James I., when an 
 act was passed, in the twenty-first year of his 
 reign, known as the Statute of Monopolies, 
 which entirely prohibited all grants of that na- 
 ture, so far as the traffic in commodities already 
 known was concerned. But the king was per- 
 mitted to secure by letters patent, to the inventor 
 of any new manufacture, the sole right to make 
 and vend the same for a term not exceeding 
 fourteen years. Since that time the power of the 
 monarch has been so far controlled by the law 
 that the prohibition contained in the Statute of 
 Monopolies has been fully observed, and under 
 that statute has grown up the present system of 
 Britiph patent law, from which ours has to a 
 great extent been derived. 
 
 The constitution of the United States confers 
 upon congress the power to pass laws " to pro- 
 mote the progress of science and the useful arts, 
 by securing for limited times to authors and in- 
 ventors the exclusive right of their respective 
 writings or discoveries." U. S. Const, art. 1. s. 
 6, ol. 8. This right can, accordingly, be con- 
 ferred only upon the authors and inventors them- 
 selves ; but It rests in the sound discretion of 
 congress to determine the length of time during 
 which it shall continue. Congress at an early 
 day availed itself of the power. 
 
 The first act' passed was that which estab- 
 lished the patent office, on the 10th of April, 
 1790. There were several supplements and 
 modifications to this law, namely, the acts passed 
 February 7, 1793, June 7, 179i, April 17, 1800, 
 July 3, 1833, July 13, 1833. These were all re- 
 pealed, by an act passed July 4, 1836, and a new 
 system was established. Subsequently other 
 changes .were made by the acts of March S, 
 1837, March 3, 1839, August 29, 1842, May 37, 
 1848, March 3, 1849, February 18, 1861, March 2, 
 
 1861, Julv 16, 1863, March 3, 1863, June 35, 
 1864, and March 3, 1865. The act of July 8, 1870, 
 entitled "An act to revise, consolidate, and 
 amend the statutes relating to patents and copy- 
 rights" repealed all existing acts. 
 
 The present law does not, indeed, furnish any 
 guarantee of the validity of the title conferred 
 upon the patentee. The patent is, nevertheless, 
 prima facie evidence of its own validity ; 1 Stor. 
 336 ; 3 id. 173 ; 1 Mas. 153 ; 14 Pet. 458 ; 3 
 Blatohf. 339 ; 1 McAU. 171 ; as well for a de- 
 fendant in an action as for a plaintiff; 15 How. 
 353. No provision is made by statute for setting 
 it aside directly, however invalid it may prove, 
 except in the special case of interference between 
 two patents or an application and a> patent. 
 But, throughout its whole term of existence, 
 whenever an action is brought against any one 
 for having infringed it, he is permitted to show 
 its original invalidity in his defence. The supreme 
 court, however, while deciding that an individ- 
 ual cannot maintain a suit in equity in his own 
 name to repeal a patent, except in interference 
 cases, have raore'^recently intimated that the 
 proper remedy is in the name of the attorney- 
 general, or of the United States ; 14 Wall. 
 4.34 ; on the relation of the party interested ; 
 Curt. Pat. § 503. The exclusive right of the 
 patentee did not exist at common law ; it is cre- 
 ated by acts of congress ; and no rights can be 
 acquired unless authorized by the statute and in 
 the manner it prescribes ; 10 How. 494 ; 19 id. 
 195 ; 3 N. Y. 9 ; 8 Pet. 658. The power granted 
 by the patent is domestic in its character, and 
 confined within the limits of the United States ; 
 consequently it does not extend to a foreign ves- 
 sel lawfully entering one of our ports, where the 
 patented improvement was placed upon her in a 
 foreign port and authorized by the laws of the 
 country to which she belongs ; 19 How. 183. 
 
 We will now proceed to treat of some of the 
 details of our present law on this subject. 
 
 Of the subject-matter of a patent. The act 
 of July 8, 1870, sec. 24, provides for the 
 
 f ranting of a patent to the first inventor or 
 iseoverer of any new and useful art, machine, 
 manufacture, or composition of matter, or 
 any new and useful improvement thereof, not 
 known or used by others in this country, and 
 not patented, or described in any printed pub- 
 lication in this or any foreign country before 
 his invention or discovery thereof, and not in 
 public use or on sale for more than two years 
 prior to his application, unless the same is 
 proved to have been abandoned. The distinc- 
 tion between a process and a machine is dis- 
 cussed in 16 How. 252. There are with us, 
 according to the phraseology of the statute, 
 four classes of inventions which may be the 
 subjects of patents : _first, an art ; second, a 
 machine ; third, a manufacture ; and, fourth, 
 a composition of matter. In Great Britain, 
 as we have seen, letters patent granting ex- 
 clusive privileges can be issued only to the 
 inventors of a " new manufacture." But the 
 courts in defining the meaning of the term, 
 have construed the word "manufacture" to 
 be coextensive in signification with the whole 
 of the four classes of inventions thus re- 
 cognized by our law. An art or process, a 
 machine, and a composition of matter are all 
 regarded there as manufactures. The field of 
 invention in Great Britain is, therefore, coin- 
 
PATENT 
 
 380 
 
 PATENT 
 
 cident with that provided by our law, and the 
 legal subject-matter of patents is the same in 
 each country ; 2 B. & Aid. 349 ; 8 Term, 
 99 ; 2 H. Blackst. 492 ; 2 M. & W. 544 ; 
 "Webst. Pat. Cas. 237, 393, 459. ■ 
 
 But, inasmuch as we have three other 
 classes of inventions, the term "manufacture*' 
 has a more limited signification here than it 
 receives in Great Britain. In this country it 
 is understood to mean a new article of mer- 
 chandise which has required the exercise of 
 something more than ordinary mechanical 
 skill and ingenuity in its contrivance ; no new 
 principle, or combination of parts is necessary 
 to render a patent of this kind valid. All 
 that is requisite is that a substantially new 
 commodity shall have been produced for the 
 public use and convenience. A mere change 
 in the form of a well-known article may some- 
 times justify the granting of a patent for the 
 same, where such change adapts it to an es- 
 sentially new use, and where something be- 
 yond the range of ordinary skill and ingenuity 
 must have been called into exercise in its con- 
 trivance. See H How. 248. 
 
 The general rule, then, is that wherever 
 invention has been exercised, there will be 
 found the subject-matter of a patent ; 1 Mc- 
 AU. 48 ; 5 Blatch..46. And as the law looks 
 to the fact, and not to the result by which it 
 was accomplished, it is immaterial what 
 amount of thought was involved in making' 
 the invention ; 4 Mas. 6. 
 
 Although the word "discovery" is used in 
 our statute as entitling the discoverer to a 
 ' patent, still, every discovery is not a patent- 
 able invention. The discoverer of a mere 
 philosophical principle, or abstract theory, or 
 elementary truth of science, cannot obtain a 
 patent for the same, unless he applies it to 
 some directly useful purpose. The patent 
 can only be for such a principle, theory, or 
 truth reduced to practice and embodied in a 
 particular structure or combination of parts ; 
 1 Stor. 285 ; 1 Mas. 187 ; 4 irf. 1 ; 1 Pet. C. 
 C. 342 ; nor can there be a patent for a func- 
 tion or for an effect only, but for an effect 
 produced in a given manner or by given 
 means; 1 Holmes, 20; 2 Fisher, 229; i id. 
 275; or by a particular operation; 1 Gall. 
 480; 1 Mas. 476; 1 Stor. 270; 2 id. 164; 1 
 Pet. C. C. 394 ; 5 McLean, 76 ; 15 How. 62 ; 
 4 Fisher, 468; 11 Off. Gaz. 153. An idea 
 is not patentable ; a patent is valid only for 
 the practical application of An idea ; 3 Blatch. 
 636 ; 20 Wall.' 498. 
 
 An invention, to be patentable, must not 
 only be new, but must also be useful. But 
 by this it is not meant that it must be more 
 useful than any thing of the kind previously 
 known, but that it is capable of use for a 
 beneficial purpose. The word "useful" is 
 also to be understood in contradistinction to 
 "pernicious," or "frivolous." A contrivance 
 directly and mainly calculated to aid the 
 counterfeiter, the pickpocket, or the assassin, 
 or which would in any way be directly calcu- 
 lated to be injurious to the morals-, the health, 
 
 or the good order of society, would not be 
 patentable. Neither would a new contrivance 
 which was of too trivial a character to be 
 worthy of serious consideration ; 1 Mas 186 
 303; 4 Wash. C. C. 9; 1 Paine, 203 • I 
 Blatch. 372, 488 ; 2 id. 132 ; 1 W. & M. 290- 
 2 McLean, 35 ; Baldw. 303 ; 13 N. H. 3ii • t 
 Fisher, 396 ; 1 Biss. 362 ; 3 Fisher, 218, S36. 
 
 The patent itself is prima facie evidence 
 of utility ; 9 Blatch. 77 ; s. c. 6 Fish. 48- i 
 Bond; 212 ; and its use by the defendant and 
 others is evidence of utility ; 1 Holmes, 840. 
 
 In the trial of an action for infringemefif 
 evidence of the comparative utility" of the 
 plaintiff's machine and the defendant's is in^ 
 admissible, except for the purpose of showin? 
 a substantial difference-between the two ma. 
 chines; 1 Stor.. 336. 
 
 A mere application of an old device or prOi 
 cess to the manufacture of an article is held 
 to constitute only a double use, and not to be 
 patentable. There must be some new process 
 or machinery used to produce the efl'ect; i 
 Stor. 190, 408; Gilp. 489; 3 Wash. C. C. 
 443 ; 1 W. & M. 290 ; 2 McLean, 35 ; 4 id. 
 456 ; 2 Curt. 340; 2 Robb, 133; 12 Blatch. 
 101 ; 91 U. S. 37, 150. But where thenew 
 use is not analogous to the old and would not 
 be suggested, by it, — where invention is ne- 
 cessary in order to conceive of the new ap- 
 plication, and experiment is required to test 
 its success, and the result is a new or superior 
 result, — there a patent may be obtained 
 
 No patent can be granted in the United 
 States for the mere importation of an invent 
 tion brought from abroad ; although it a 
 otherwise in England. The constitutionj/as 
 we have seen, only authorizes congress to 
 grant these exclusive privileges to the inven- 
 tors themselves. The mere fact of an in- 
 ventor having obtained a patent for a device 
 in a foreign country wiU not prevent his ob- 
 taining a patent for the same thing herey |lro- 
 vided it shall not have been introduced inW 
 public use in the United States for more than 
 two years prior to the application, and that the 
 patent shall expire at the same time with the 
 foreign patent, or if there be more than one, 
 at the same time with the one having the 
 shortest term. In no case shall such patent 
 be in force more than seventeen years ; sec. 
 26, Act of 1870. 
 
 Of caveats. Section 40 of the act of 1870 
 authorizes the inventor of anything patent- 
 able — provided' he be a citizen, or an alien 
 who has resided within the United States for 
 one year next preceding his application and 
 has made oath of his intention to become a 
 citizen — to file a caveat in the patent office 
 for his own security. This caveat consiste m 
 a simple statement of his invention, in any 
 language which will render it intelligible. It 
 is always well to attach a drawing to the de- 
 scription, in order that it may be more easily 
 and thoroughly understood ; but this ib m 
 indispensable. ; . , . 
 
 The right acquired by the caveator in tins 
 manner is that of preventingthe grant of any 
 
PATENT 
 
 381 
 
 PATENT 
 
 interfering patent, on any application filed 
 within one year from the day when the caveat 
 was lodged in the patent office, without his 
 being notified of the application and having 
 an opportunity of contesting the priority of 
 invention of the applicant, by means of an 
 "interference," which will be treated of 
 hereafter. In this way an inventor can ob- 
 " tain a year to perfect his invention, without 
 the risk of having the patent to which he is 
 entitled granted to another in the mean time. 
 
 Upon application within one year by any 
 other person for a patent that interferes in 
 Any way, it is the duty of the commissioner 
 of patents to give notice of such application 
 to the person filing the caveat, who shall 
 within three months file his description, etc. 
 The caveat is filed in the confidential archives 
 of the office, and preserved in secrecy. See 
 1 Bond, 212 ; 1 Fisher, 479, 372 ; 8. C. 4 
 Blatoh. 362. 
 
 Of the application for a patent. When the 
 invention is complete, and the inventor de- 
 sires to apply for a patent, he causes a specifi- 
 cation to be prepared, setting forth in clear 
 and intelligible terms the exact nature of his 
 invention, describing its different parts and 
 the principle and mode in which they operate, 
 and stating precisely what he claims as new, 
 in contradistinction from those parts and com- 
 binations which were previously in use. This 
 should be accompanied by a petition to the 
 commissioner of patents, stating the general 
 nature of his invention and the object of his 
 application. One copy of drawings should bo 
 attached to the specification, where the nature 
 of the case admits of drawings ; and, where 
 the invention is for a composition of matter, 
 specimens of the ingredients and of the com- 
 position of matter should be furnished. The 
 specification, as well as the drawings, must be 
 signed by the applicant and attested by two 
 witnesses ; the drawings may be signed by an 
 Attorney in fact ; and appended to the specifi- 
 cation must be an affidavit of the applicant, 
 statuw that he verily believes himself to be 
 the OHginal and first inventor of that for which 
 he asks a patent, and that he does not know 
 and does not believe that the same was ever 
 before known or used, and, also, of what 
 country he is a citizen. The whole is then 
 filed in the patent office. As to furnishing a 
 model, see Model. E. S. §§ 4889, 4891. 
 
 Of the examination. As has been already 
 observed, the act (sec. 31) provides for an 
 examination whenever an application is com- 
 pleted in the prescribed manner. And if on 
 such examination it appears that the claim of 
 the applicant is invalids and would not be sus- 
 tained by the courts, the application is rejected. 
 In cases of doubt, however, the approved 
 practice of the patent office is to grant the 
 patent, and thus give the party an opportu- 
 nity to sustain it in the courts if he can. 
 
 As a general rule, an invention is consid- 
 ered patentable whenever the applicant is 
 shown to be the original and first inventor ; 
 and his own affidavit appended to the appli- 
 
 cation is sufficient to raise a presumption that 
 he is the first inventor, until the contrary 
 is shown. But if it is ascertained by the office 
 that the same thing had been invented by any 
 other person in this country, or that it had 
 been patented or described in any printed 
 publication in this or any foreign country, 
 prior to its invention by the applicant, a pat- 
 ent will be denied him. But a mere prior 
 invention of the same thing in a foreign coun- 
 try, if not patented or described in some 
 printed publication, will not afiect his right to 
 a patent here. 
 
 The rule that the applicant is entitled to a 
 patent whenever he is shown to be the origi- 
 nal and first inventor is subject to one impor- 
 tant exception. If he has, either actually or 
 constructively, abandoned his invention to the 
 public, he can never afterwards recall it and 
 resume his right of ownership ; 4 Mas. Ill; 
 4 Wash. C. C. 544 ; 2 Pet. 16 ; 6 id. 248 ; 
 7 id. 313 ; 1 How. 202 ; 5 Fisher, 189 ; 2 
 id. 531 ; 94 U. S. 92 ; 3 Fisher, 595 ; 3 Biss. 
 321; 1 Fisher, 252; 14 OS. Gaz. 308; 14 
 Blatch. 94. 
 
 Where an invention has been in public use 
 or on sale for more than two years before the 
 date of the application, a patent cannot be 
 granted. See97 U.S.126; 94id. 92; 12Blatch. 
 149 ; 6 Fisher, 343 ; s. c. 3 Cliff. 563 ; 7 Wall. 
 583 ; 9 Reporter, 337 ; 1 Holmes, 503. (Un- 
 der the earlier acts, such use, etc., did not 
 prejudice an inventor's rights unless it occur- 
 red with the consent and allowance of the ap- 
 plicant.) 
 
 If the application for a patent is rejected, ' 
 the specification may be amended and a 
 second examination requested. If again re- 
 jected, an appeal may be taken, upon the pay- 
 ment of $10, to the examiners-in-chief. If 
 rejected by them, an appeal lies to the com- 
 missioner in person, on' payment of a fee of 
 f 20 ; and if rejected by him, an appeal may 
 be taken to the supreme court of the District 
 of Columbia, sitting in banc, upon notice to 
 the commissioner, and filing the reasons of 
 appeal in writing. If all this proves inef- 
 fectual, the applicant may still file a bill in 
 equity in the circuit court to compel the allow- 
 ance of his patent; §§ 46-52, act of 1870. 
 
 All the proceedings before the patent office 
 connected with the application for a patent 
 are ex parte, and are kept secret, except in 
 cases of conflicting claims, which will be refer- 
 red to below. 
 
 Of the date of the patent. The patent 
 usually takes date on the day it issues ; every 
 patent shall bear date as of a day not later 
 than six months from its allowance and notice 
 to the applicant; sec. 23. 
 
 The obtaining of foreign letters patent by 
 an inventor entitled to obtain a patent in this 
 country does not prevent the granting of a 
 patent here. In such case the patent here 
 expires with the foreign patent, or if more 
 than one, with the one first expiring, but in 
 no case can the patent here continue more 
 than seventeen years. 
 
PATENT 
 
 382 
 
 PATENT 
 
 Of interferences. The forty-second sec- 
 tion of the act of 1870 provides that when an 
 application is made which interferes with 
 another pending application or with an unex- 
 pired patent, a trial shall be allowed for the 
 purpose of determining who was the prior in- 
 ventor, and a patent is directed to be issued or 
 not accordingly. 
 
 Whenever there are interfering patents, 
 any person interested in any one of such 
 patents may have relief against the interfering 
 patent by suit in equity against its owners ; 
 the court may thereupon adjudge either 
 patent void in whole or in part, etc., but such 
 judgment shall affect none but parties to the 
 suit and those deriving title under them sub- 
 sequently to the judgment ; sec 68, act of 
 1870. 
 
 Of the specification. The specification is 
 required, by the act of 1870, § 26, to de- 
 scribe the invention in such full, clear, con- 
 cise, and exact terms as to enable any person 
 skilled in the art or science to which it relates 
 to make, construct, or use it. In the trial of 
 an action for infringement, it is a question of 
 fact for the jury whether this requirement has 
 been complied with ; 2 Brock. 298 ; 1 Mas. 
 182; 2 Stor. 432; 3 id. 122; 1 W. & M. 
 53. At the same time, the interpretation of 
 the specification, and the . ascertainment of 
 the subject-matter of the invention from the 
 language of the specification and from the 
 drawings, is, as appears from the authorities 
 just referred to, as well as from others, a 
 matter of law exclusively for the court ; 5 
 How. 1 ; 3 McLean, 250, 432 ; 2 Cliff. 507 ; 
 2 Fisher, 62 ; 4 Blatch. 61 ; 1 Fisher, 44 ; 
 289, 351. The specification will be liberally 
 construed by the court, in order to sustain the 
 invention ; 1 Sumn. 482 ; 3 id. 514, 535 ; 1 
 Stor. 270 ; 5 McLean, 44 : 5 Fisher, 153 ; 2 
 Bond, 189; 15 How. 341; 4 Blatch. 238; 
 14 id. 162 ; 2 Sawy. 461 ; s. c. 6 Fisher, 
 469; 1 Wall. 491. See 7 Off. Gaz. 385; 
 but it must, nevertheless, identify with rea- 
 sonable clearness and accuracy the invention 
 claimed, and describe the manner of its con- 
 struction and use so that the public from the 
 specification alone may be enabled to prac- 
 tise it ; and if the court cannot satisfactorily 
 ascertain the meaning of the patent from its 
 face, it will be void for ambiguity ; 2 Blatch. 
 1 ; 2 Brock. 303 ; 1 Sumn. 482 ; 1 Mas. 
 182, 447. It will be construed in view of the 
 state of the art ; 2 Fisher, 477 ; 14 Blatch. 
 79 ; 1 Holmes, 445 ; 1 Biss. 87. 
 
 It is required to distinguish between what 
 is new and what is old, and not mix them up 
 together without disclosing distinctly that for 
 which the patent is granted ; 4 Wash. C. C. 
 68 ; 2 Brock. 298 ; 1 Stor. 273 ; 1 Mas. 188, 
 475 ; 1 Gall. 438, 478 ; 2 id. 51 ; 1 Sumn. 
 482 ; 3 Wheat. 534 ; 7 id. 356. If the in- 
 vention consists of an improvement, the pat- 
 ent should be confined thereto, and should 
 clearly distinguish the improvement from the 
 prior machine, so as to show that the former 
 only is claimed ; 1 Gall. 438, 478 ; 2 id. 61 ; 
 
 1 Mas. 447 ; 3 McLean, 260. Ambianoiis 
 terms should be avoided ; nothing material 
 to the use of the invention should be omitted- 
 and the necessity of trials and experiments 
 should not be thrown upon the public. 
 
 Of re-issues. It often happens that errors, 
 defects, and mistakes occur in the specification 
 of a patent, by which it is rendered wholly or 
 partially inoperative or perhaps invalid. To 
 furnish a remedy in such cases, § 53 of tlie 
 act of 1870 provides that when such errors or 
 defects are the result of inadvertency, acci- 
 dent, or mistake, without any fraudulent or 
 deceptive intention, the patent may be snr- 
 rendered by the patentee, his executors, ad- 
 ministrators, or assigns, and a new patent 
 issued in proper shape to secure the real in. 
 vention intended to have been patented origi- 
 nally. The identity between the invention de- 
 scribed in the re-issued and that in the original 
 patent is a question of fact for the jury ■ 4 
 How. 380; 27 Penn. 517; 1 Wall. 53U 
 
 A re-issued patent has the same effect and 
 operation in law, on the trial of all actions 
 for causes subsequently accruing, as though 
 the patent had been originally issued in such 
 corrected form. From this it appears that 
 after a re-issue no action can be brought for a 
 past infringement of the patent. But, as the 
 bare use of a patented machine is (if unauthor- 
 ized) an. infringement of the rights of the 
 patentee, a machine Constructed and lawfully 
 used prior to the re-issue may be an infringe- 
 ment of the patent if used afterwards. The 
 re-issued patent will expire when the original 
 patent would have expired. 
 
 For the principles applicable to a surrender 
 and re-issue, and the extent to which the 
 action of the commissioner of patents is con. 
 elusive, see 2 McLean, 35; 2 Stor. 432; 3 
 id. 749 ; 4 How. 380, 646 ; 15 id. 112; 17 
 id. 74; 6 Pet. 218; 7 id. 202; 1 W. &M, 
 248 ; 2 irf. 121. All matters of fact relating 
 to a re-issue are finally settled by the decision 
 of the commissioner, granting the re-issue; 
 but it may be shown that the commissioner 
 has exceeded his authority in granting are- 
 issue for an invention different from the one 
 embraced in the original patent; 11 Wall. 
 516 ; 9 id. 796 ; 8 Blatch. 513 ; S. 0. 4 Fisher, 
 324 ; id. 468 ; Curt. Pat. § i82, h. The late 
 case of Miller v. Bridgeport Brass Co., 21 0. 
 G. 201 ; 3 Morr. Transcr. 419, indicates some 
 departure from the accepted rules on the sub. 
 ject. It was there said by Bradley, J., thst 
 where the only mistake suggested is that the 
 claim is not so broad as it might have been, 
 the mistake was apparent on flie first inspeiv 
 tion of the patent, an* any correction desired 
 should have been applied for immediately, 
 and that the right to a correction may be lost 
 by unreasonable delay. Further, that m 
 claim of a specific device, and the omission to 
 claim other devices apparent on the face 01 
 the patent, are in law a dedication to the 
 public of that which was not claimed, and the 
 legal effect of the patent cannot be revoked 
 unless the patentee surrenders it and proves 
 
PATENT 
 
 383 
 
 PATENT 
 
 that the specification was so framed by real 
 inadvertence, accident, or mistake, and this 
 should be done with due diligence (and before 
 adverse rights have accrued ; 3 Morr. Tran- 
 scr. 455). It was not the special purpose of 
 the legislation upon re-issues to authorize re- 
 issues with broader claims, though such a re- 
 issue may be made, when it clearly appears 
 that there has been a bona fide mistake such 
 as chancery in cases within its ordinary juris- 
 diction would correct. The subject is dis- 
 cussed in 15 Am. L. Rev. 731 ; 16 id. 57, 
 296 ; Howson, Ee-issued Patents. See, also, 
 
 I Wall. 677. The re-issued patent is not a 
 new patent; and an existing contract con- 
 cerning the patent before its surrender applies 
 equally to it after the surrender and re-issue ; 
 
 II Gush. 669. 
 
 Under the act of 1870, the application for a 
 re-issue must be sworn to by the inventor, if 
 living — and not by the assignee, if any, but 
 this does not apply to patents issued and as- 
 signed prior to July 8, 1870 ; act of March 3, 
 1871. R. S. § 4895. 
 
 Of patents for designs. The act of 1870 
 permits any person to obtain a patent for a 
 design, which shall continue in force for three 
 and a half, seven, or fourteen years, at the 
 option of the applicant, upon the payment of 
 a fee of ten, fifteen, or thirty dollars, accord- 
 ing to the duration of the patent obtained. 
 These patents are granted wherever the ap- 
 plicant, by his own industry, genius, efibrts, 
 and expense, has invented or produced any 
 new and original design for a manufacture, alto 
 relievo, or bas-relief, or any new and original 
 design for the printing of woollen, silk, cotton, 
 or other fabrics ; any new and original im- 
 pression, ornament, pattern, print, or picture, 
 to be printed, painted, cast, or otherwise 
 placed on or worked into any article of manu- 
 facture, or any new and original shape or con- 
 figuration of any article of manufacture, not 
 known or used by others before his invention 
 or production thereof, or patented or described 
 in any printed publication. 
 
 The general method of making the applica- 
 tion is the same as has been hereinbefore de- 
 scribed, and the patent issues in a similar form. 
 
 Of disclaimers. Section 54, of the act of 
 1870, provides "that whenever a patentee 
 has, through inadvertence, accident, or mis- 
 take, and without any fraudulent or deceptive 
 intention, claimed more than that of which 
 he was the original or first inventor or dis- 
 coverer, his patent shall be valid for all that 
 part which is truly and justly his own, pro- 
 vided the same is a material or substantial 
 part of the thing psijented, and any such 
 patentee, his heirs or assigns, whether of the 
 whole or any sectional interest therein, may, 
 on payment of the duty required by law (ten 
 dollars), make disclaimer of such parts of the 
 thin^ patented as he shall not claim to hold 
 by virtue of the patent or assignment, stating 
 therein the extent of his interest in such pat- 
 ent; said disclaimer shall be in writing, at^ 
 tested by one or more witnesses, and recorded 
 
 in the patent office, and shall thereafter be 
 considered as part of the original specification, 
 to the extent of the interest possessed by the 
 claimant, and by those claiming under him, 
 after the record thereof. But no such dis- 
 claimer 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 it." 
 
 To understand the object and purpose of 
 some of these provisions, it must be known 
 that by the fifteenth section of the act of 1836 
 it was provided that it should be a good de- 
 fence to an action for infringement that the 
 specification was too broad ; and although this 
 was modified by the ninth section of the act 
 of 1837 so as to permit a patentee who, by 
 mistake, accident, or inadvertence, and with- 
 out any wilful intent, had claimed some things 
 of which he was not the first inventor, to re- 
 cover damages for the infringement of what 
 was really his invention, where the parts in- 
 vented could be clearly separated from the 
 parts improperly claimed, yet in such cases 
 the plaintiff was not entitled to recover costs 
 unless previous to the commencement of the 
 suit he had entered a disclaimer for that which 
 was not his invention. But no person can 
 avail himself of the benefits of this provision 
 who has unreasonably neglected or delayed to 
 enter his disclaimer. The act of 1870 follows 
 substantially the act of 1837 in this respect. 
 The provisions authorizing disclaimers, and 
 their effect upon the question of costs, are 
 discussed in 1 Stor. 273, 590 ; 1 Blatchf. 244, 
 445; 2 id. 194; 15 How. 121 ; 19 id. 96; 
 20 id. 378; 21 Wall. 112; 6 Blatchf. 96; 2 
 Fisher, 477 ; 3 N. Y. 9 ; 5 Denio, 314 ; a 
 disclaimer by one owner will not affect the 
 interest of any other owner. 
 
 Of the extension of a patent. Patents 
 were formerly granted for fourteen years, the 
 commissioner of patents being authorized in 
 special cases to extend the same for seven 
 years longer. But by the act of 1861 the 
 length of time for the patent to run was ex- 
 tended to seventeen years, and the right to 
 an extension on such patents was denied. 
 Therefore no extensions hereafter will be 
 granted, except by congress, of patents issued 
 before March 2, 1861. R. S. § 4924. 
 
 Applications for extension were required 
 to be filed with the commissioner, not more 
 than six months, or less than ninety days be- 
 fore the expiration of the patent ; no exten- 
 sion was granted after the expiration of the 
 original term. 
 
 Notice of the application was required to 
 be given through newspapers published in 
 Washington, and in the section of the coun- 
 try interested adversely to the extension, for 
 sixty days before the day set for the hearing. 
 After paying a fee of fifty dollars, he was re- 
 quired, in accordance with the act of congress 
 and the rules of the office, to file a sworn 
 statement of the ascertained value of his in- 
 vention or discovery, and of his receipts and 
 expenditures, sufficiently in detail to exhibit 
 
PATENT 
 
 884 
 
 PATENT 
 
 a true and faithful account of loss and profit in 
 any manner accruing to him by reason of said 
 invention. Act of 1870, §§ 63-4-5-6. 
 
 Any person might appear and show cause 
 against the extension of the patent. But if, 
 after all was done, the commissioner was fully 
 satisfied that, having due regard to the public 
 interest, it was 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 remunera- 
 tion for the time, ingenuity, and expense be- 
 stowed upon the same and the introduction 
 thereof into use, it was his duty to grant the 
 extension as prayed for. And thereupon the 
 patent, as extended, had the same effect in 
 law as though it had been originally granted 
 for the term of twenty-one years. The ex- 
 tension enured only to the benefit of the pat- 
 entee, and not of his assignees, unless he had 
 contracted to convey to them an interest or 
 right therein. But the assignee had a right 
 to continue the use by himself of the patented 
 machine which he was using at the time of the 
 renewal; 4 How. 646, 709, 712 ; 19 id. 211 ; 
 3 McLean, 250; 4 id. 526; 1 Blatch. 167, 
 258; 2 id. ill ; 3 Stor. 122, 171;- and a 
 purchaser might repair his own machine, when 
 necessary, though the repair consisted in the 
 replacement of an essential part of the com- 
 bination patented ; 9 How. 109. 
 
 The act of the commissioner in granting 
 the extension was conclusive, in the absence of 
 fraud or excess of jurisdiction ; 2 Curt. C. C. 
 506 ; see 8 Blatch. 513 ; 8. c. 4 Fisher, 324. 
 As to the effect of an extension, see 3 Blatch. 
 48 ; 6 id. 165 ; 10 Wall. 367 ; 98 U. S. 596. 
 
 Of the assignment of patents. By § 36 of 
 the act of 1870, every patent or an interest 
 therein is assignable in law, by an instrument 
 in writing ; such assignments, etc., are void 
 as against any purchaser or mortgagee for a 
 valuable consideration, without notice, unless 
 recorded in the patent ofiice within three 
 months. See Patent Office. 
 
 Strictly speaking, the word "assignment" 
 applies to the transfer of the entire interests 
 of the inventor, or of a fraction of that entire 
 interest running throughout the whole United 
 States. A conveyance of an exclusive inter- 
 est within and throughout any specified part 
 or portion of the United States is more pro- 
 perly denominated a grant. A mere authori- 
 ty or permission to use, sell, or manufacture 
 the thing patented, either in the whole United 
 States or in any specific portion thereof, is 
 known as a license. But all three are some- 
 times included under the general term of an 
 assignment. As to the distinction between an 
 assignment and license, see 4 Fisher, 221 ; 
 21 Wall. 205 ; 1 Holmes, 149; 10 How. 447. 
 Where the assignment, however, is not of the 
 patent itself, or of any undivided part thereof, 
 or of any right therein limited to a particular 
 locality, but constitutes merely a license or 
 authority from the pantentee, not exclusive 
 and not transferring any interest in the patent 
 
 itself, it has been held that it need not be re. 
 corded ; 2 Stor. 541 . Acts in pais will some, 
 times justify the presumption of a license ■ l 
 How. 202; 17 Pet. 228; 3 Stor. 402. As 
 to a verbal license, see 1 Bond, 1 94 ; s. c. i 
 Fisher, 380. As to the rights of licensees 
 see 12 Blatch. 202. ' 
 
 An assignment may be made prior to tie 
 granting of a patent. And when duly made 
 and recorded, the patent may be issued to the 
 assignee.- See act of 1870, § 33. This 
 however, only applies to cases of assignments 
 proper, as contradistinguished from grants or 
 licenses. The application must, however in 
 such cases be made and the specification 
 sworn to by the inventor. See 6 McLean 
 131; 4 Wash. C. C. 71 ; 4 Mas. 15; 1 
 Blatch. 606. The assignment transfers th^ 
 right to the assignee, although the patent 
 should be afterwards issued to the assignor- 
 10 How. 477. See 1 Wash. C. C. 168; I 
 Mas. 15. 
 
 Of joint inventors. The patent must in 
 all cases issue to the inventor, if alive and 
 if he has not assigned his interest. And if 
 the invention is made jointly by two invcn- 
 tors, the patent must issue to them both. 
 This is equally the case where one makes a 
 portion of the invention at one time apd 
 another at another time. A failure to observe 
 this rule may prove fatal to the validity of 
 the patent ; see 1 Mas. 447. 
 
 of executors and administrators. The 
 thirty-fourth section of the act of 1870 pro- 
 vides that, where an inventor dies before ob- 
 taining a patent, his executor or administrator 
 may apply for and obtain such patent, hold, 
 ing it in trust for the heirs at law or devisee!, 
 accordingly as the inventor died intestate or 
 testate. Nothing is said as to its being ap- 
 propriated to the payment of debts; but, 
 having once gone into the hands of the ex- 
 ecutors or administrators, it would perhaps be- 
 come assets, and be used like other personal 
 property. In England, a patent will pass as 
 assets to assignees in bankruptcy ; 3 B. &F> 
 565. 
 
 The right to make a surrender and receive 
 a re-issue of a patent also vests by law in the 
 executor or administrator. See act of 1870, 
 § 53. The law further provides that the ex- 
 ecutor or administrator may make the oath 
 necessary to obtain the patent,— differing in 
 this respect from the case of an assignment, 
 where, although the patent issues to the as. 
 signee, the inventor must make the oath. 
 
 2'ke liability/ of a patent to be levied upon 
 for debt. The better opinion is that letters 
 patent cannot be levied upon and sold b^ a 
 common law execution. The grant of pnvi- 
 lege to the patentee would, from its incorpo- 
 real nature, seem to be incapable of manual 
 seizure and of sale. Even if such a sale 
 were made, there does not appear to be any 
 provision in the acts of congress which con- 
 templates the recording of a sheriffs deed; 
 and without a valid record the patent«e 
 might nevertheless make a subsequent trans- 
 
PATENT 
 
 385 
 
 PATENT 
 
 fer to a hand fide purchaser without notice, 
 which would be valid. 
 
 But this peculiar species of property may- 
 be subjected to the payment of debts through 
 the instrumentality of a bill in equity. The 
 chancellor can act upon the person. He can 
 direct the patent to be sold, and by attachment 
 can compel the patentee to execute a convey- 
 ance to the purchaser. It was so ruled in 23 
 Alb. L. J. 332 (S. C. of Dist. of Col.), which 
 case was affirmed by the supreme court ; 14 
 Cent. L. J. 326 ; 21 Am. L. Reg. N. S. 469 
 (see 14 How. 528 ; 1 Paige, 637 ; 1 Gall. 485) ; 
 where it was further held that the court might 
 compel the holder of the patent to assign 
 it, or appoint a trustee for that purpose. 
 The right of a patentee will pass to his as- 
 signees in bankruptcy; 3 B. & P. 777 ; but 
 not to a trustee in insolvency, in Massachu- 
 setts; 1 Holmes, 152. 
 
 How far a patent is retroactive. By the 
 earlier law on this subject in the United States, 
 a patent, when granted, operated retroac- 
 tively: so that a machine covered by the 
 terms of the patent, though constructed pre- 
 viously to the date of that instrument, could 
 not be used after the issuing of the patent 
 without subjecting the party so using it to an 
 action for infringement. Of course the use 
 of the machine previously to the date of the 
 patent was not unlawful. 
 
 The 37th section of the act of 1870, fol- 
 lowing substantially the act of 1837, pro- 
 vides "that every person who may have pur- 
 chased of the inventor, or with his knowledge 
 and consent may have constructed any newly- 
 invented or discovered machine, or other 
 patentable article, prior to the application by 
 the inventor or discoverer for a patent, or sold 
 or used one po constructed, shall have the 
 right to use, and vend to others to be used, 
 the specific thing so made or purchased, with- 
 out liability therefor." 
 
 At present, therefore, property rightfully 
 acquired in a specific machine, etc., cannot be 
 affected by a patent subsequently applied for 
 by the patentee. It has been held, however, 
 that, under the general grant contained in the 
 constitution, congress has power to pass a 
 special act which shall operate retrospectively 
 so as to give a patent for an invention already 
 in public use; 3 Wheat. 454; 2 Stor. 164; 
 3 Sumn. 535. The infringement must be 
 subsequent to the date of the patent ; but on 
 the question of novelty the patent will be con- 
 sidered as relating back to the original dis- 
 covery ; 4 Wash. C. C. 68, 703. 
 
 Marking patented articles. The thirty- 
 eighth section of the act of 1870 declares that 
 in all cases where an article is made or vended 
 by any person under the protection of letters 
 patent, it shall be the duty of sufih person, to 
 give sufficient notice to the pnblic that said 
 article is so patented, either by fixing thereon 
 the word " patented," together with the day 
 and year the patent was granted, or when, 
 from the character of the article patented, 
 that may be impracticable, by enveloping one 
 Vol. II._25 
 
 or more of the said articles, and affixing a label 
 to the package, or otherwise attaching thereto 
 a label containing a like notice ; on failure of 
 which, in any suit for the infringement of 
 letters patent by the party failing so to mark, 
 no damage shall be recovered by the plaintiff, 
 except on proof that the defendant was duly 
 notified of the infringement, and continued 
 after such notice, to make, use, or vend the 
 article patented. 
 
 Penalties provided in certain cases. The 
 thirty-ninth section of the act of 1870 pro- 
 vides a penalty of not less than J 100 and 
 costs for every person who shall mark, etc., 
 any article for which he has not obtained a 
 patent, with the name in imitation of the 
 name of any person who has a patent there- 
 upon, without his consent, etc., or who shall 
 so mark the word "patent" or any word of 
 similar import with intent to counterfeit the 
 mark or device of the patentee, without con- 
 sent ; or who shall in any manner mark upon 
 an unpatented article the word "patent," 
 etc., for the purpose of deceiving the people. 
 This penalty may be recovered in the district 
 court where the offence was committed ; one 
 half goes to the person who sues for the 
 penalty and the other to the United States. 
 
 A similar statute — that of 5 & 6 Will. IV. 
 c. 83 — exists in England, for observations up- 
 on which see Hindm. Pat. 366. It has been 
 decided under that statute that where there 
 has been an unauthorized tise of the word 
 " patenl," it must be proved that the word 
 was used with a view of imitating or counter- 
 feiting the stamp of the patentee, and that it 
 is no defence that the patented article imitated 
 was not a new manufacture, the grant of the 
 patent being conclusive on the defendant ; 3 
 H. & N. 802. See 1 Fisher, 647 ; 2 Bond, 
 23 ; 8. c. 3 Fisher, 72 ; id. 374 ; 5 id. 384 ; 
 5 Blatch. 494; &id. 33. 
 
 Of infringements. The criterion of infringe- 
 ment is substantial identity of construction or 
 operation. Mere changes of form, propor- 
 tion, or position, or substitution of mechani- 
 cal equivalents, will not be infringements, 
 unless they involve a substantial difference of 
 construction, operation, or effect ; 3 McLean, 
 250, 432 ; 1 Wash. C. C. 108 ; 15 How. 62 ; 
 1 Curt. 279 ; 1 McAU. 48. As a general 
 rule, whenever the defendant has incorpor- 
 ated in his structure the substance of what the 
 plaintiff has invented and properly claimed, 
 he is responsible to the latter ; 1 Wall. 531. 
 
 Where the patent is for a new combina- 
 tion of machines to produce certain effects, it 
 is no infringement to use any of the machines 
 separately, if the whole combination is not 
 used; 1 Mas. 447; 2 id. 112; 1 Pet. C. C. 
 322 ; 1 Stor. 568; 2 id. 190; 16 Pet. 336 ; 
 3 McLean, 427 ; 4 id. 70 ; 6 id. 539 ; 14 
 How. 219; 24 Vt. 66; 1 Black, 427; 1 
 Wall. 78. But it is an infringement to use 
 one of several improvements claimed, or to 
 use a substantial part of the invention, 
 although with some modification or even im- 
 provement of form or apparatus ; 2 Mas. 
 
PATENT 
 
 386 
 
 PATENT 
 
 112 ; 1 Stor. 273. Where the patent de- 
 scribes and claims a machine, it cannot be 
 construed to be for a process or function, so 
 as to make all other machines infringements 
 which perform the same funct^jon ; and no in- 
 fringement will in such case take place where 
 the practical manner of giving effect to the 
 principle is by a different mechanical struc- 
 ture and mechanical action; 15 How. 252. 
 If the patentee is the inventor of a device, he 
 may treat as infringers all who make a simi- 
 lar device operating on the same principle 
 and performing the same functions by analo- 
 gous means or equivalent combinations, al- 
 though the infringing machine may be an im- 
 provement of the original and patentable as 
 such. But if the invention claimed is itself 
 but an improvement on a known machine, by 
 a mere change of form or combination of parts, 
 it will not be an infringement to improve the 
 original machine by the use of a different 
 form or combination of parts performing the 
 same functions. The doctrine of equivalents 
 does not in such case apply, unless the sub- 
 sequent improvements are mere colorable in- 
 vasions of the first ; 20 How. 405. 
 
 A sale of the thing patented to an agent of 
 the patentee, employed by him to make the 
 purchase on account of the patentee, is not 
 per se an infringement, although, accom- 
 panied by other circumstances, it may be 
 evidence of infringement ; 1 Curt. 260. 
 
 The making' of a patented machine for 
 philosophical experiment only, and| not for 
 use or sale, has been held to be no infringe- 
 ment ; 1 Gall. 429, 485 ; but a use with a 
 view to an experiment to test its value is an 
 infringement; 4 Wash. 580. The sale of the 
 articles produced by a patented machine or 
 process is not an infringement ; 3 McLean, 
 295 ; 4 How. 709 ; 94 U. S. 668 ; nor is the 
 bond_fi.de purchase of patented articles from 
 an infringing manufacturer ; 10 Wheat. 359 ; 
 nor a sale of materials by a sheriff; 1 Gall. 
 485 ; 1 Robb, 47. Selling the parts of a 
 patented machine may be an infringement ; 
 1 Holmes, 88. As to infringement by a 
 railroad corporation, where its road was 
 worked and its stock owned by a connecting 
 road, see 17 How. 30. Ignorance by the in- 
 fringer of the existence of the patent in- 
 fringed is no defence, but may mitigate dam- 
 ages ; 1] How. 687. 
 
 Of damages for infringements. The act of 
 1870, § 59, provides that damages may be re- 
 covered in any circuit court of U. S. etc., in 
 fhe name of the party interested either as 
 patentee, assignee, or grantee, and that in case 
 of verdict for the plaintiff the court may en- 
 ter judgment thereon for any sum above the 
 amount found by the verdict as the actual 
 damages sustained, according to the circum- 
 stances of the case, not exceeding three times 
 the amount of such verdict, together with 
 costs. 
 
 By § 55 of same act, a court of equity may 
 award damages for infringement and increase 
 the -same >in a similar manner. See Mea- 
 sure .(XF Damages. 
 
 The actual damage is all that can be al 
 lowed by a jury, as contradistinguished fron 
 exemplary, vindictive, and punitive damages 
 The amount of defendant's profits from the 
 unlawful user is, in general, the measure 
 of the plaintiff's damages ; and this may be 
 determined by the plaintiffs price for a li. 
 cense; 11 How. 607; 15 id. 646; 16 id 
 480 ; 20 id. 198 ; 1 Gall. 476 ; 1 Blatch 244' 
 405; 2 id. 132, 194, 229, 476. The ruleol 
 damages is different where a patent is only for 
 an improvement on a machine and where it is 
 for an entire machine ; 16 How. 480. li 
 there be a mere making and no user proved 
 the damages should be nominal ; 1 Gall, m', 
 
 Jurisdiction of cases under the patent lam. 
 The act of 1870, § 55, gives original jurisdic 
 tion to the circuit courts of the United Statei 
 and to the supreme court of the District of 
 Columbia, or of any territory, in all cases 
 arising under the laws of the United States 
 granting exclusive privileges to inventors. 
 This jurisdiction extends both to law and 
 equity, and is irrespective of the citizenship 
 of the parties or the amount in controversy. 
 The jurisdiction of the federal courts is ex- 
 elusive of that of the state courts ; 8 N, Y, 
 9 ; 40 Me. 430. But this is to be understood 
 of cases arising directly under the acts of 
 congress, and not of those where the patent 
 comes collaterally in question : as, for instance, 
 where it is the subject-matter of a contract or 
 the consideration of a promissory note; 3 
 McLean, 525 ; 1 W. & M. 34 ; 16 Conn. 409, 
 Hence, a bill to enforce the specific perform- 
 ance of a contract for the sale of a patent- 
 right is not such a case arising under the pat- 
 ent laws as gives jurisdiction to the federal 
 courts; 10 How. 477. By the same act, § 56, 
 a writ of error or an appeal lien to the supreme 
 court of the United States from all judgments 
 or decrees of any circuit court, etc., m any 
 suit under the patent law, without regard to 
 the sum or value in controversy. See ConBia 
 OF THE United States. 
 
 Patent-right, note given for a. In nan; 
 of the states, laws have been passed making 
 void all notes given in consideration of a 
 patent-right unless the words "given for a 
 patent-right " are prominently written on the 
 face of the note. These laws have been de- 
 cided in Michigan, 16 Alb. L. J. 330; Illinois, 
 70 111. 109 ; Indiana, 2 Bissell, 811 ; Minne- 
 sota, 9 Chic. Leg. News, 112 ; to be unconsti- 
 tutional and void. The property in invention! 
 exists by virtue of the laws of congress, and 
 no state has a right to interfere with its en. 
 joyment or annex conditions to the grant | 
 2 Biss. 314 ; 4 Bush, 311. In Pennsylvania, 
 however, a distinction . has been made, the 
 statute of April 12, 1872, requiring the in- 
 sertion of the words "given for a patent- 
 right," merely having the effect of mabng 
 the note or instrument in the hands of a m 
 chaser subject to the same defence as if w the 
 hands of the original owner or holder, nj 
 necessary implication, notes without sucl 
 words inserted in them remain on the same 
 footing as before the act, and innocent hoio- 
 
PATENT OFFICE 
 
 387 
 
 PATENT OFFICE 
 
 ers, who take such notes -without notice, take 
 them clear of all equities existing between 
 the original parties. 
 
 As between the original parties to a note 
 given for a patent-right, it is well settled that 
 it is a good defence to show that the alleged 
 patent was void, and therefore there was no 
 consideration ; 18 Penn. 465. All who take 
 with notice of the consideration, take subject 
 to the same defence; id. Sharswood, J., 
 holds that there is nothing in this view which 
 interferes with any just right of the holder of 
 a valid patent under the acts of congress, nor 
 in permitting the maker to show against a 
 holder with such notice that the note was ob- 
 tained by fraudulent misrepresentation; 86 
 Penn. 173. 
 
 To secure the insertion of the words, the 
 act makes it a misdemeanor punishable by 
 fine or imprisonment, or both, for any person 
 "knowing the consideration of a note" to be 
 the sale of a patent-right, to sell or transfer 
 it without the words "given for a patent- 
 right" inserted, as provided by the act; 26 
 Am. Hep. 514 and note, citing 43 Ind. 167 ; 
 23 Minn. 24; 53 Ind. 454; 54 id. 270. 
 
 See Abandonmbnt of Invention ; Ca- 
 veat ; Commissioner of Patents ; Ex- 
 tension or Patents ; , Infringement ; 
 Interference; Invention; Machine; 
 Manufacture ; Measure op Damages ; 
 Model ; Patent Office ; Patent Of- 
 fice, Examiners in ; Process ; Utility ; 
 Withdrawal. 
 
 PATENT OFFICE. The office through 
 ■which applications for patents are made, and 
 from which those patents emanate. 
 
 Some provision for the purpose of issuing pat- 
 ents is, of coiirse, found in every country where 
 the system m granting patents for inventions 
 prevails; but nowhere else' is there an establish- 
 ment which is organized in all respects on the 
 same scale as the United States Patent Office. 
 
 By the act of 1790, the duty of transacting this 
 business was devolved upon the secretary of 
 state, the secretary of war, and the attorney- 
 general. In the provision for .a board for this 
 purpose found in the act of 1793, the secretary 
 of war is omitted. From that time during a 
 period of more than forty years all the business 
 connected with the granting of patents was 
 transacted by a clerk in the office of the secre- 
 tary of state, — the duties of the secretary in this 
 respect being little more than nominal, and the 
 attorney-general acting only as a legal adviser. 
 
 The act of July 4, 1836, reorganized the office 
 and gave it a new and higher position. A com- 
 missioner of patents was constituted. Provision 
 was made for a library, which has since become 
 one of the finest of the kind in the country. 
 
 The patent office is an office of record, in 
 which assignments of patents are recordable, 
 and the record is notice to all the world of 
 the facts to be found on record. Under sec- 
 tion four of the act of 1793, an assignment 
 was not valid unless recorded in the office of 
 the secretary of state ; 4 Blackf. 183. The 
 law on the subject of recording is thus stated 
 in Curt. Pat. § 183 : As against the patentee 
 himself, an assignment vests a good title in 
 
 the assignee, from the time of its execution, 
 and recording within three months is not ne- 
 cessary to its validity. But as respects subse- 
 quent purchasers without notice and for a 
 valuable consideration the prior assignment 
 must be recorded within the three months. As 
 against third persons, a suit may be main- 
 tained, in law or equity, by an assignee, pro- 
 vided he records his assignment at any time 
 before the trial or hearing. See 1 Story, 
 273 ; 2 id. 609 ; 7 Blatch. 195. 
 
 Three cases only are said to be provided 
 for by statute: first, an assignment of the 
 whole patent ; second, an assignment of an 
 undivided part thereof ; and, third, a grant 
 or conveyance of an exclusive right under the 
 patent within a specified part or portion of 
 the United States ; 2 Stor. 542 ; 2 Blatch. 
 148; 9 Vt. 177. A question may arise 
 whether the act of 1860, in prescribing a 
 tariff" of fees for recording other papers, as 
 agreements, etc., has not recognized the usage 
 of the office in recording them as within the 
 meaning of the acts of congress, and rendered 
 them recordable. See, as to recording con- 
 tracts relating to patents. Curt. Pat. § 183, n. 
 
 PATENT OFFICE, EXAMINEES IN. 
 
 Upon the reorganization of the patent office, 
 in 1836, under the act of July 4 of that year, 
 a new and important principle was intro- 
 duced. Prior to that date, any one was at 
 liberty to take out his patent for almost any 
 contrivance, if he was willing to pay the fees. 
 At least, this was the practical operation of 
 the system ; for although a patent was not 
 granted until it was allowed by certain heads 
 of departments, still, as the examination in 
 such cases went no further than merely to as- 
 certain whether the contrivance was of suffi- 
 cient importance to be worthy of a patent, 
 without any inquiry as to who was the first 
 inventor thereof, the allowance of the patent 
 was rather a matter of course in almost every 
 case. The applicant, at his own peril, de- 
 cided for himself' whether the subject-matter 
 of the patent was new. If it was not so, the 
 patent would be of no value, as it could never 
 be enforced. The question of novelty could 
 be raised whenever an action for infringement 
 was brought ; or a proceeding might be di- 
 rectly instituted to test the validity of the 
 patent, and to annul it if the patentee was 
 found not to be the orignal and first inventor. 
 The law in these respects was like that of 
 England and most other European countries. 
 But the act of 1836 provided for a thorough 
 examination of every application, with a view 
 of ascertaining whether the contrivance thus 
 shown was novel as well as useful : so that 
 no patent should issue which would not be 
 sustained by the courts. In theory, this was 
 to be done by the commissioner of patents ; 
 but the amount of business on his hands was 
 such, even then, as to render it impossible for 
 him to perform all that labor in person ; and 
 provision was accordingly made by law for an 
 examining clerk to assist him in these exam- 
 
PATENT-ROLLS 
 
 388 
 
 PATER FAMILIAS 
 
 inations. Under the act of 1870 there are 
 now, besides the commissioner and assistant 
 commissioner, three examiners-in-chief, a chief 
 clerk, an examiner in charge of interfer- 
 ences, twenty-two principal examiners? twen- 
 ty-two first and twenty-two second assistant 
 examiners. 
 
 The duty of these examiners is to deter- 
 mine whether the subject-matter_ of the re- 
 spective patents which are applied for had 
 been invented or discovered by any other per- 
 son in this country, or had been patented or 
 described in any printed publication in this 
 or any foreign country, prior to the alleged in- 
 vention thereof by the applicant. If not, 
 and the invention is deemed useful within the 
 meaning of the patent law, a patent is al- 
 lowed, unless it clearly appears that the in- 
 vention has been abandoned to the public. If 
 the invention has been in public use more 
 than two years with or without the con- 
 sent of the inventor, that single circumstance 
 amounts to a statutory abandonment of the 
 invention ; although it may be abandoned in 
 various other methods. But, unless the fact 
 of abandonment is very clear, the office does 
 not assume to decide against the applicant, 
 but leaves the matter to a court and jury. 
 See Patents ; Patent Office. 
 
 PATENT-ROLLS. Registers in which 
 are recorded all letters patent granted since 
 1516; 2 Sharsw. Bla. Com. 346; App. to 
 First Rep. of Select Commit, on Pub. Rec. 
 pp. 53, 84. 
 
 PATENT WRIT. A writ not closed or 
 sealed up. Jacob, Law Diet.; Co. Litt. 289 ; 
 2 id. 39 ; 7 Co. 20. 
 
 PATENTEE. He to whom a patent has 
 been granted. The term is usually applied 
 to one who has obtained letters patent for a 
 new invention. 
 
 PATER (Lat.). Father. The Latin term 
 is considerably used in genealogical tables. 
 
 PATER-PAMILLA.S (Lat.). In CivU 
 Law. One who was sui juris, and not sub- 
 ject to the paternal power. 
 
 In order to give a, correct idea of what was 
 understood in the Roman law by this term, it is 
 proper to refer briefly to the artificial organiza- 
 tion of the Roman family,^the greatest moral 
 phenomenon in the history of the human race. 
 The comprehensive term /amiZio embraced both 
 persons and property : money, lands, houses, 
 slaves, children, all constituted part of this ar- 
 tificial family, this juridical entity, this legal 
 patrimony, the title to which was exclusively 
 vested in the chief or pater-fdmilias, who alone 
 was capax dominii, and who belonged to himself, 
 sui juris. 
 
 The word pater-famUias is by no means equiva- 
 lent to the modern expression father of a family, 
 but means proprietor in the strongest sense of 
 that term ; it is he qui in domo dominium habet, 
 in whom were centred all property, all power, 
 all authority : he was, in a word, the lord and 
 master, whose authority was unlimited. No one 
 but he who was suijuris, who was pater-fami- 
 lias, was capable of exercising any right of pro- 
 perty, or wielding any superiority or power over 
 any thing ; for nothing could belong to him who 
 
 wiis hlmeeHxiHmijuris. Hence the children of the 
 fllii-famaias, as well as those of slaves, beloneed 
 to the pater-familias. In the same manner e?erv 
 thing that was acquired by the eone or'slava 
 formed a part of the famUia, and, coneequentlT 
 belonged to its chief. This absolute properti 
 and power ot the pater-familias only ceased with 
 his life, unless he voluntarily parted with them 
 by a sale ; for the alienation by sale is invariabl? 
 the symbol resorted to for the purpose of dij. 
 solving the stem dominion of the pater-fttmUUa 
 over those belonging to thefamUia. Thus, both 
 emancipation and adoption are the results of 
 imaginary sales,— per imaginariaS venditiona. 
 As the daughter remained in the family of her 
 father, grandfather, or great-grandfather, as the 
 case might be, notwithstanding her marriage, It 
 followed as a necessary consequence that the 
 child never belonged to the same family as its 
 mother : there is no civil relationship between 
 them ; they are natural relations,— cogrnafi,— but 
 they are not legally related to each other,— ny. 
 nati; and therefore the child never Inherlte from 
 its mother, nor the mother from her chUd. There 
 was, however, a means by which the wife might 
 enter into the family and subject herself to the 
 power of her husband, in manu mariii, and 
 thereby establish a legal relationship between 
 herself and her husband. This marital power of 
 the husband over the wife was generally ac. 
 quired either coemptione, by the purchase of the 
 wife by the husband from the pater-familias, or 
 usu, by the prescription based on the possession 
 of one year, — the same by which the title to 
 movable property was acquired according to the 
 principles governing the usucapio {usu cflp«*f,to 
 obtain by use). Another mode of obtaining the 
 same end was the co7>farreatio, a sacred cere- 
 mony performed by the breaking and eating of 
 a small cake, farreum, by the married conple. 
 It was supposed that by an observance of this 
 ceremony the marital power was produced by 
 the intervention of the gods. This solemn mode 
 of celebrating marriages was peculiar to tlie pat- 
 rician families. By means of these fictions and 
 ceremonies the wife became in theeyeof thelaw 
 the daughter of her husband, an! the sister of 
 the children to whom she gave birth, who wonld 
 otherwise have been strangers to her. Well 
 might Gains say. Fere nuUi alii sunt homimipi 
 talem in liberos habeant potestatem, qudem not 
 habemus. 
 
 There is some similarity between the agnatio, 
 or civil relationship, of the Romans, and the 
 transmission of the name of the father, under 
 the modern law, to all his descendants in the 
 male line. The Roman law says of the children, 
 patris, non matris, familiam eequuntar; we say, 
 patris, non matris, nomen sequwitur. All the 
 members of the family who, with us, hear the 
 same name, were under that law agnates, or con- 
 stituted the agnatio, or civil family. Those chil- 
 dren only belonged to the family, and were sub- 
 ject to the paternal power, who had been 
 conceived in justis nuptiis, or been adopted. 
 Nuptia, or matrimonium, was a marriage cele- 
 brated in conformity with the peculiar rules of 
 the civil law. There existed a second kind of 
 marriage, call c(meuUnatus,—2. valid union ana 
 a real marriage,— which has been often impw- 
 perly confounded, even by high authority, wltn 
 concubinage. This confusion of ideas is attri- 
 butable to a superficial examination of the sub- 
 ject ; for the illicit intercourse between r man 
 and a woman which we call concubinage was 
 stigmatized by the opprobrious term stuprm by 
 the Romans, and is spoken of in the strongesi 
 terms of reprobation. The eonci^inatm was toe 
 natural marriage, and the only one which tboK 
 who did not enjoy the jus eonnubii were peraufr 
 
PATERNA PATERNIS 
 
 889 
 
 PATRIA POTESTAS 
 
 ted to contract. The Roman law recognized two 
 species of marriage, the one civil, and the other 
 natural, in the same manner as there were two 
 Icinds of relationship, the agnatio and cognatio. 
 The justa nuptUe or justum matrimonmm, or 
 civil marriage, could only be contracted by 
 Roman citizens and by those to whom the jut 
 eonmiMi had been conceded : this kind of mar- 
 riagealone produced the paternal power, the right 
 of inheritance, etc. 
 
 But the rapid rise and extraordinary greatness 
 of the city attracted immense crowds of stran- 
 gers, who, not possessing the jus connubii, could 
 form no other union than that of the coneitbina- 
 tm, which, though authorized by law, did not 
 give rise to those legal effects which flowed from 
 the jiutte nuptite. By adoption, the person 
 adopted was transferred from one family to an- 
 other ; he passed from the paternal power of one 
 pater-fiimilias to that of another : consequently, 
 no one who was sui juris could be adopted in 
 the strict sense of that word. But there was 
 another species of adoption, called adrogatio, by 
 which a person sui juris entered into another 
 family, and subjected himself to the paternal 
 power of its chief. The effect of the adrogation 
 was not confined to the person adrogated alone, 
 but extended over his family and property. 1 
 Marcadj, 75 et seq. 
 
 This extraordinary organization of the Roman 
 family, and the unlimited powers and authority 
 vested in the pater-familias, continued until the 
 reign of Justinian, who, by his 118th Novel, en- 
 acted on the 9th of August, 514, abolished the 
 distinction between the agnatio and cognatio, and 
 established the order of inheritance which, with 
 some modifications, continues to exist at the pre- 
 sent day in all countries whose jurisprudence is 
 based on the civil law. See F^tbia Potestas. 
 
 PATERNA PATERNIS (Lat. the 
 father's to the father's). In French Law. 
 An expression used to signify that, in a suc- 
 cession, the property coming from the father 
 of the deceased descends to hb paternal rela^ 
 tions. 
 
 PATERNAL. That which belongs to the 
 father or comes from him : as paternal power, 
 
 Eaternal relation, paternal estate, paternal 
 ne. See Line. 
 
 PATERNAL PO"WER. The authority 
 lawfully exercised by parents over their chil- 
 dren. See Father. 
 
 PATERNAL PROPERTY. That 
 which descends or comes from the father and 
 other ascendants or collaterals of the paternal 
 stock. Domat, Liv. Pr6I. tit. 3, s. 2, n. 11. 
 
 PATERNITY. The state or condition 
 of a father. 
 ' The husband is primd facie presumed to 
 be the father of his wife's children born dur- 
 ing coverture or within a competent time 
 afterwards : pater is est quern nuptice demon- 
 strant; 7 Mart. La. N. s. 553. So if the 
 child is en ventre sa mere at time of marriage ; 
 Co. Litt. 123 ; 8 East, 192. In civil law the 
 presumption holds in case of a child born be- 
 fore marriage as well as after; 1 Bla. Cora. 446, 
 454 ; Fleta, lib. 1, c. 6. In cases of mar- 
 riage of a widow within ten months after de- 
 cease of husband, the paternity is to be de- 
 cided by circumstances; Hargrave, note to 
 Co. Litt. § 188, n. 190. Marriage within ten 
 
 months after decease of husband was forbid- 
 den by Roman, Danish, and Saxon law, and 
 English law before the Conquest ; 1 Beck, 
 Med. Jnr. 481 ; Brooke, Abr. Bastardy, pi. 
 18 ; P^lm. 10 ; 1 Bla. Com. 466. 
 
 The presumption of paternity may always 
 be rebutted by showing circumstances which 
 render it impossible that the husband can be 
 the father ; 6 Binn. 283 ; 1 P. A. Browne, 
 Appx. xlvii.; Hard. 479; 8 East, 193; Stra. 
 51, 940 ; 4 Term, 866 ; 2 Myl. & K. -349 ; 3 
 Paige, Ch. 139; 1 S. & S. 150; T. & R. 
 138 ; 1 Bouvier, Inst. n. 302 et seq. 
 
 The declarations of one or both of the 
 spouses, however, cannot affect the condition 
 of a child born during the marriage ; 7 Mart. 
 La. N. 8. 553 ; 3 Paige, Ch. 139. See Bas- 
 tard ; Bastardy ; Legitimacy ; Mater- 
 nity ; Pregnancy. 
 
 PATHOLOGY. In Medical Jurispru- 
 dence. The science or doctrine of diseases. 
 In cases of homicides, abortions, and the like, 
 it is of great consequence to the legal prac- 
 titioner to be acquainted in some degree with 
 pathology. 2 Chitty, Pr. 42, n. 
 
 PATRIA (Lat.). The country ; the men 
 of the neighborhood competent to serve on a 
 jury ; a jury. This word is nearly synony- 
 mous with pais, which see. 
 
 PATRIA POTESTAS (Lat.). In Civil 
 Law. The paternal power; the authority 
 which the law vests in the father over the 
 persons and property of his legitimate chil- 
 dren. 
 
 One of the effects of marriage is the paternal 
 authority over the children born in wedlock. In 
 the early period of the Roman history, the pater- 
 nal authority was unlimited : the father had the 
 absolute control over his children, and might 
 even, as the domestic magistrate of his family, 
 condemn them to death. They could acquire 
 nothing except for the benefit of the pater-fa- 
 mUias (which see) ; and they were even liable to 
 be sold and reduced to slavery by the author of 
 their existence. But in the progress of civiliza- 
 tion this stem rule was gradually relaxed ; the 
 voice of nature and humanity was listened to on 
 behalf of the oppressed children of a cruel and 
 heartless father. A passage in the 37th book, t. 
 13, § 5, of the Pandects, informs us that, in the 
 year 870 of Rome, the emperor Trajan compelled 
 a father to release his son from the paternal au- 
 thority, on account of cruel treatment. The 
 same emperor sentenced a father to transporta- 
 tion because he had killed his son in a hunting- 
 party, although the son had been guilty of adul- 
 tery with his stepmother ; for, says Marcianus, 
 who reports the case, patria potestas in pietate 
 debet J non in atrodtate, consistere. Ulpianus says 
 that a father is not permitted to kill his eon 
 without a judgment from the prefect or the pres- 
 ident of the province. In the year 981 of Rome, 
 the emperor Alexander Severus addressed a con- 
 stitution to a father, which is found in the 8th 
 book, t. 47, § 3, of the Justinian Code, in which 
 he says, "Tour paternal authority authorizes 
 you to chastise your son ; and if he persists in 
 his misconduct, you may bring him before the 
 president of the province, who will sentence him 
 to such punishment as you may desire." In the 
 same book and title of the Code we find a con- 
 stitution of the emperor Constantiue, dated in 
 
PATKIA POTESTAS 
 
 390 
 
 PATKIMONIUM 
 
 the year of Rome 1065, which inflicts the punish- 
 ment denounced against parricide on the father 
 who shall be convicted of having killed his son. 
 The power of selling the child, which at first 
 was unlimited, was also much restricted, and 
 finally altogether abolished, by subsequent legis- 
 lation, especially during the empire. Paulus, 
 who wrote about the middle of the tenth century 
 of Rome, informs us that the father could only 
 sell his child in case of extreme poverty: contem- 
 platione extremes necessitatis aut alimentarum gra- 
 tia. In 1039 of Rome, Diocletian and Maximian 
 declare In a rescript that it is beyond doubt 
 {manifestissimi juris) that a father can neither 
 sell nor pledge nor donate his children. Con- 
 stantine,in 1059, permitted the sale by the father 
 of his child, at its birth and when forced to do so 
 by abject poverty ; propter nimiam paupertatem 
 egestatemque vidua; and the same law is re- 
 enacted in the Code of Justinian. C. 4. 43, t. 
 2,3. 
 
 The father, being bound to indemnify the party 
 who had been injured by the olfencesof his child, 
 could release himself from this responsibility by 
 an abandonment of the ofiender, in the same 
 manner as the master could abandon his slave 
 for a similar purpose, — noxali causa maneipare. 
 This power of abandonment continued to exist, 
 with regard to male children, up to the time of 
 Gains, in the year 925 of Rome. But by the In- 
 stitutes of Justinian it is forbidden. Inst. 4. 8. 
 7. 
 
 With regard to the rights of the father to the 
 property the child might acquire, it was origi- 
 nally as extensive and absolute as if it had been 
 acquired by a slave : the child could possess 
 nothing nor acquire any thing that did not be- 
 long to the father. It is true, the child might pos- 
 sess a pecuUum ; but of this he had only a preca- 
 rious enjoyment, subject to the will and pleasure 
 of the father. Under the first emperors a distinc- 
 tion was made In favor of the son as to such 
 property as had been acquired by him in the 
 army, which was called castrense peculium, to 
 which the son acquired a title in himself. Con- 
 stantine extended this rule by applying it to 
 such property as the child had acquired by ser- 
 vices in offices held in the state or by following 
 a liberal profession : this was denominated quasi- 
 eastrense peculium. He also created the peeulium 
 adventitium, which was composed of all property 
 inherited by the son from his mother, whether 
 by will or ab intestat ; but the father had the 
 usufruct of this peculium. Arcadius and 
 Honorius extended it to every thing the son ac- 
 quired by succession or donations from his 
 grandfather or mother or other ascendants in 
 the maternal line. Theodosius and Valentinian 
 embraced in it whatever was given by one of the 
 spouses to the other ; and Justinian included in 
 it everything acquired by the son, except such 
 as was produced by property belonging to the 
 father himself. It is thus seen that, by the 
 legislation of Justinian and his predecessors, the 
 paternal power with regard to property was al- 
 most entirely destroyed. 
 
 The pater-familias had not only under his pa- 
 ternal power his own children, but also the chil- 
 dren of his sons and grandsons, — in fact, all his 
 descendants in the male line ; and this authority 
 continued in full force and vigor no matter what 
 might be the age of those subject to it. The 
 highest offices in the government did not release 
 the incumbent from the paternal authority. The 
 victorious general or consul to whom the honors 
 of a triumph were decreed by the senate was 
 subject to the paternal power in the same man- 
 ner and to the same extent as the humblest citi- 
 zen. It is to be observed, however, that the do- 
 
 mestic subjection did not interfere with the cana. 
 city of exercising the highest public functions in 
 the state. The children of the daughter werenot 
 subject to the paternal authority of her father- 
 they entered into the family of her husband' 
 Women could never exercise the paternal power' 
 And even when a woman was herself mi Jiiru 
 she could not exercise the paternal power. Itis 
 for this reason, Ulpian observes, that the family 
 of which a woman, aui juris, was the head 
 mater-familias, commenced and ended with her : 
 mulier autem familim sua et caput et finis est. { 
 Ortolan, 191 et seq. 
 
 The modern civil law has hardly preserved 
 any features of the old Roman jurisprudence 
 concerning the paternal power. Article 233 of 
 the Louisiana Code provides, it is true, that a 
 child, whatever be its age, owes honor and re- 
 spect to its father and mother ; and the next ar- 
 ticle adds that the child remains under the autho- 
 rity of the father and mother until hie majority 
 or emancipation, and that in case of a dilference 
 of opinion between the parents the authority of 
 the father shall prevail. In the succeediDg 
 article obedience is enjoined on the child to the 
 orders of the parents as long as he remains sub- 
 ject to the paternal authority. But article 236 
 renders the foregoing rules in a great measure 
 nugatory, by declaring that " a child under the 
 age of puberty cannot quit the paternal house 
 without the permission of his father and mother, 
 who have a right to correct him, provided it be 
 done in a reasonable manner." So that the 
 power of correction ceases with the age of four- 
 teen for boys and twelve for girls : nay, at these 
 ages the children may leave the paternal roof in 
 opposition to the will of their parents. It is seen 
 that, by the modern law, the paternal authority 
 is vested in both^parents, but practically it is 
 generally exercised by the father alone; for 
 wherever there is a difference of opinion his will 
 prevails. The great object to be attained by tie 
 exercise of the paternal power is the education 
 of the children to prepare them for the battle of 
 life, to make them useful citizens and respect- 
 able members of society. During the marriage, 
 the parents are entitled to the enjoyment of the 
 property of their minor children, subject to the 
 obligation of supporting and educating them, 
 and of paying the taxes, making the necessary 
 repairs, etc. Donations made to minors are ac- 
 cepted by their parents or other ascendants. The 
 father has under his control all actions which It 
 may be necessary to bring for his minor children 
 during the marriage. When the marriage is dis- 
 solved by the death of one of the spouses, the 
 paternal power ceases, and the tutorship Is 
 opened : but the surviving parent is the natural 
 tutor, and can at his death appoint a testament- 
 ary tutor to his minor children. See Paiee 
 Familias. 
 
 PATRICIDE. One guilty of killing his 
 father. See Parricide. i 
 
 PATRIIMONIAL. A thin^ which comes 
 from the father, and, by extension, from the 
 mother or other ancestor. 
 
 PATKIMONIUM. In Civil Law. That 
 which is capable of being inherited. 
 
 Things capable of being possessed by a single 
 person exclusively of all others are, in the Boman 
 or civil law, said to be in patnmonwi w"® "' 
 capable of being so possessed, they are mro 
 patrimonium. , ..... .-, 
 
 Most things may be inherited; hut there a« 
 some which are said to be extra patnmmtvm, or 
 which are not in commerce. These are sucb » 
 
PATRIMONY 
 
 391 
 
 PAX REGIS 
 
 are common, as the light of heaven, the air, the 
 sea, and the like ; things public, as rivers, har- 
 bors, roads, oreelcs, ports, arms of the sea, the 
 sea-shore, highways, bridges, and the like ; things 
 which belong to cities and municipal corporations, 
 as public squares, streets, market-houses, and 
 the like. See 1 Bouvier, Inst. nn. 431-446. 
 
 PATRIMONY. Any kind of property. 
 Such estate as has descended in the same 
 family ; estates which have descended or been 
 devised in a direct line from the father, and, 
 by extension, from the mother or other an- 
 cestor. 
 
 The father's duty to take care of his chil- 
 dren. Swinb. Wills, 235. 
 
 PATHINITS (Lat.). A godfather. 
 
 PATRON. In Ecclesiastical Lav^. He 
 who has the disposition and gift of an eccle- 
 siastical benefice. 
 
 In Roman La^r. 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 endan- 
 ger the liberties of the people. 
 
 In Ecclesiastical Law. The right of pre- 
 sentation to a church or ecclesiastical benefice. 
 2BIa. Com. 21. 
 
 PATRONUS (Lat.). In Roman Law. 
 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. 
 
 Bomulus at first appointed a hundred of them. 
 Seven years afterward, in consequence of the 
 aBsociation of Tatius to the Bomans, a hundred 
 more were appointed, chosen from the Sabines. 
 Tarquinius Priscus Increased the number to three 
 hundred. Those appointed by Bomulus and 
 Tatius were called patrea majorum gentium, and 
 the others were called patrea miTwrum gentium,. 
 These and their descendants constituted the no- 
 bility of Rome. The rest of the people were 
 called plebians, 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 
 cli^ns (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 in- 
 terests 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, etc. The contract was of a sacred nature : 
 the violation of it was a sort of treason, and 
 punishable as such. According to Cicero (De 
 Bepub. ii. 9) , this relation formed an integral 
 part of the governmental system, Et habuit ple- 
 bem in dienielas principum deseriptum, 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 Ro- 
 maln, § ill. Ultimately, by force of radical 
 changes in the institution, the word patronus 
 came to signify nothing more than an advocate. 
 Id. Iv. 
 
 PATROON. In New York. The lord 
 of a manor. See Manor. 
 
 PATRUBLIS (Lat.). InCivULaw. A 
 
 cousin-german by the father's side; the son 
 or daughter of a father's brother. Dig. 38. 
 10. 1. 
 
 PATRXTTJS (Lat.). In Civil Law. An 
 uncle by the father's side ; a father's brother. 
 Dig. 38. 10. 10. Patruus magnus is a grand- 
 father's brother, grand-uncle. Patruus major 
 is a great-grandfather's brother. Patruus 
 maximus is a great-grandfather's father's 
 brother. 
 
 PAUPER (Lat. poor). One so poor that 
 he must be supported at the public expense. 
 
 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. 
 See 16 Viner, Abr. 259 ; Botts, Poor-Laws ; 
 Woodf. Landl. & T. 201. 
 
 PAUPERIBS (Lat.). In CivU Law. 
 Poverty. In a technical sense, damnum absque 
 injuria : i. e. a damage done without wrong 
 on the part of the doer : c. g. damage done 
 by an irrational being, as an animal. L. 1, 
 §3, D. St quod paup. fee. ; Vicat. Voc. Jur.; 
 Calvinus, Lex. 
 
 FAVIAGE. A contribution or tax for 
 paving streets or highways. 
 
 PAWN. A pledge. A pledge includes, 
 in Louisiana, a pawn and an antichresis; 
 but sometimes pawn is used as the general 
 word, including pledge and antichresis. La. 
 Civ. Code, art. 3101 ; Hennen, Dig. Pledge. 
 See Pledge. 
 
 PAVyNBROKBR. One whose business 
 it is to lend money, usually in small sums, 
 upon pawn or pledge. 
 
 PAWNEE. He who receives a pawn or 
 pledge. See Pledge. 
 
 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 fulfilment of 
 his liability. See Pledge. 
 
 PAX REGIS (Lat.). The peace of the 
 king. That peace or security for life and goods 
 which the king promises to all persons under 
 his protection. Bracton, lib. 3, c. 11 ; 6 Ric. 
 IL Stat. 1, c. 13. 
 
 In ancient times there were certain limits 
 which were known by this name. The pax regie, 
 or 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, C. L. 41 ; or from the four sides of the 
 king's residence, four miles, three furlongs, nine 
 acres in breadth, nine feet, nine barleycorns, etc. 
 LL. Edw. Conf. c. 13, et LL. Hen. I. 
 
PAYEE 
 
 392 
 
 PAYMENT 
 
 ■ PAYEE. The person in -whose favor a 
 bill of exchange is made payable. See Bills 
 OF Exchange. 
 
 PAYMENT. The fulfilment of a pro- 
 mise, or the performance of an agreement. 
 
 The discharge in money of a sum due. 
 
 The word payment is not a technical term : it 
 has been imported into law proceedings from the 
 exchange, and not from law treatises. When 
 payment is pleaded as a defence, the defendant 
 must prove the payment of money, or something 
 accepted in its stead, made to the plaintltf or to 
 some person authorized In his behalf to receive 
 it ; 3 Greenl. Ev. 509. 
 
 Payment, in its most general acceptation, is 
 the accomplishment of every obligation, whether 
 it consists in giving or in doing : Solutio est 
 prastatio ejus qtiod in obligatione est. 
 
 It follows, therefore, that every act which, 
 while it extinguishes the obligation, has also for 
 its object the release of the debtor and his ex- 
 emption from liability, is not payment. Pay- 
 ment is doing precisely what the payer has 
 agreed to do. Solvere dicitur cum qui fecit quod 
 facere promisit. 
 
 However, practically, the name of payment is 
 often given to methods of release which are not 
 accompanied by the performance of the thing 
 promised. Sestrinximus solutiones ad eompensa- 
 tionem, ad novationem, ad delegationem, et ad 
 numerationem. 
 
 In a more restricted sense, payment is the dis- 
 charge in money of a sum due. Mimeratio est 
 nummarice solutio, 5 Mass£, Droit commerciel, 
 829. That a payment may extinguish a debt. It 
 must be made by a person who has a right to 
 make it, to a person who is entitled to receive it, 
 in something proper to be received both as to 
 kind and quality, and at the appointed place and 
 time. 
 
 In the civil law, it is said, where payment is 
 something to be done, it must be done by the 
 debtor himself. If I hire a skilful mechanic to 
 build a steam-engine for me, he cannot against 
 my will substitute in his stead another workman. 
 Where it is something to be given, the general 
 rule is that it can be paid by any one, whether a 
 co-obliger, or surety, or even a third person who 
 has no interest ; except that in this last case 
 subrogation will prevent the extinction of the 
 debt as to the debtor, unless the payer at the 
 time of payment act in the name of the debtor, 
 or in his own name to release the debtor. See 
 
 SUBBOOATION. 
 
 What constitutes payment. 
 
 According to Comyns, payment by mer- 
 chants must be made in money or by bill ; 
 Comyns, Dig. Merchant (F). 
 
 It is now the law for all classes of citizens 
 that payment must be made by money, unless 
 the obligation is, by the terms of the instru- 
 ment creating it, to be discharged by other 
 means. In the United States, congress has, 
 by the constitution, power to decide what 
 shall be a legal tender ; that is, in what form 
 the creditor may demand his payment or must 
 receive it if offered ; and congress has deter- 
 mined this by statutes. The same power ia 
 exercised by the governments of all civilized 
 countries. As to the medium of payment in 
 the United States, see Legal Tendek. 
 
 In England, Bank-of-England notes are 
 
 may 
 notes 
 
 legal tender. But the creditor may waive 
 this nght, and anything which he has acceBted 
 as satisfaction for the debt will be considS 
 as payment. ™ 
 
 Upon a plea of payment, the defendant 
 ■" prove a dischargein bank-notes,nesotiable 
 9 of individuals, or a debt already due 
 from the payee, delivered and accepted or 
 discounted as payment ; Phill. Ev. Cowen & 
 H. ed. n. 387. Bank-notes, in conformity to 
 usage and common understanding, are re. 
 sarded as cash ; 1 Burr. 452 ; 3 id. 1516- o 
 Johns. 120 ; 6 Md. 37 ; unless objected tO' 
 
 1 Mete. Mass. 356; 8 Ohio, 169: lo Me' 
 475; 2 Cr. & J. 16, n. ; 5 Yerg. 199- 3 
 Humphr. 162; 6 Ala. N. 8. 226. Treasury 
 notes are not cash ; 3 Conn. 534. Givine 3 
 check is not considered as payment; but the 
 holder may treat it as a nullity if he derives 
 no benefit from it, provided he has not yet 
 been guilty of negligence so as to cause injury 
 to the drawer ; 2 Campb. 615 ; 8 Term, 451- 
 
 2 B. & P. 518 ; 4 Ad. & E. 952; 4 Johns! 
 296 ; 30 N. H. 256. But see 14 How. 240. 
 
 Payment in forged bills is generally a nnl. 
 lity, both in England and this country; 10 
 Wheat. 333 ; 2 Johns. 465 ; 6 Hill, N. Y. 
 340; 7 Leigh, 617; 3 Hawks, 568; 2 Ham 
 & J. 368 ; 4 Gill & J. 463 ; 4 111. 392; 11 
 id. 137; 3 Penn. 330; 6 Conn. 71.- Soalso 
 of counterfeit coin ; but an agreement to sell 
 goods and accept specific money is good, and 
 payment in these coins is valid even though 
 they be counterfeit ; 1 Term, 226 ; 14 S. & 
 R. 51. And the forged notes must be re- 
 turned in a reasonable time, to throw the loss 
 upon the debtor; 7 Leigh, 617; 11 111. 137. 
 Payment to a bank in its own notes which 
 are received and afterwards discovered to be 
 forged is a good payment ; 1 Parsons, Contr. 
 220. A forged check received as cash and 
 passed to the credit of the customer is good 
 payment ; 4 Ball. 234 ; s. C. 1 Binn. 27 ; 
 10 Vt. 141. Payment in bills of an insolvent 
 bank, where both parties were innocent, has 
 been held no payment; 7 Term, 64; 13 
 Wend. N. Y. 101; 11 Vt. 576; 9 N. H. 
 366 ; 22 Me. 85. On the other hand, it has 
 been held good payment in 1 W. & S. 92; 6 
 Mass. 185; 12 Ala. 280; 8 Yerg. 175. The 
 point is still unsettled, and it is said to be a 
 question of intention rather than of law ; 
 Story, Pr. Notes, 125*, 477*, 641. 
 
 If a bill of exchange or promissory note 
 be given to a creditor and accepted as pay- 
 ment, it shall be a good payment ; Comyns, 
 Dig. Merchant (F) ; 30 N. H. 640; 27 Ala. 
 N. s. 254 ; 16 111. 161 ; 2 Dn. N. Y. 133; 14 
 Ark. 267 ; 4 Rich. 600; 34 Me. 324. But 
 regularly a bill of exchange or note given to 
 a creditor shall not be a discharge of the debt 
 till payment of the bill, unless so accepted; 
 Skinn. 410; 1 Salk. 124. 
 
 If the debtor gives his own promissory note, 
 ft is held in England and the United States 
 generally not to be payment, unless it be 
 shown that it was so intended ; 10 Pet. 567; 
 
PAYMENT 
 
 393 
 
 PAYMENT 
 
 4 Mas. 336 ; 27 N. H. 244 ; 15 Johns. 247 ; 
 3 Wend. 66 ; 9 Conn. 23 ; 2 N. H. 525 ; 26 
 E. L. & E. 56. 
 
 And if payment be made in the note of a 
 factor or agent employed to purchase ^oods, 
 or intrusted with the money to be paid for 
 them, if the note be received as payment it 
 will be good in favor of the principal ; 1 B. 
 & Aid. 14 ; 7 B. & C. 17 ; but not if received 
 conditionally ; and this is a question of fact 
 for the jury; 6 Cow. 181; 10 Wend. 271. 
 
 It is said that an agreement to receive the 
 debtor's own note in payment must be ex- 
 pressed ; 1 Cow. 359 ; 1 "Wash. C. C. 328 ; 
 and when so expressed it extinguishes the 
 debt; 5 Wend. 85. Whether there was such 
 an agreement is a question for the jury ; 9 
 Johns. 310. 
 
 A bill of exchange drawn on a third per- 
 son and accepted discharges the debt as to the 
 drawer ; 10 Mod. 37 ; and in an action tore- 
 cover the price of goods, in England, pay- 
 ment by a bill not dishonored has been held 
 a good defence ; 4 Esp. Cas. 46 ; 3 Campb. 
 411 ; 1 M. & M. 28 ; 4 Bingh. 454 ; 5 Maule 
 & S. 62. 
 
 Retaining a draft on a third party an un- 
 reasonable length of time will operate as pay- 
 ment if loss be occasioned thereby ; 3 Wils. 
 553 ; 13 S. & E. 318 ; 2 Wash. C. C. 191. 
 
 In the sale of a chattel, if the note of a 
 third person be accepted for the price, it is 
 
 food payment; 3 Cow. 272 ; 1 D. & B. 291. 
 Tot so, however, if the note be the promise 
 of one of the partners in payment of a part- 
 nership debt; 4 Dev 91, 460. 
 
 In Maine and Massachusetts, the presump- 
 tion where a negotiable note is taken, whether 
 it be the debtor's promise or that of a third 
 person, is that it is intended as payment ; 6 
 Mass. 143 ; 12 Pick. 268 ; 2 Mete, l^ass. 168 ; 
 8 Me. 298; 18 trf. 249 ; 37 jd. 419. The 
 fact that a note was usurious and void was 
 allowed to overcome this presumption ; 11 
 Mass. 361. Generally, the question will de- 
 pend upon the fact whether the payment was 
 to have been made in notes or the receiving 
 them was a mere accommodation to the pur- 
 chaser; 17 Mass. 1. And the presumption 
 never attaches where non-negotiable notes are 
 given; 11 Me. 381 ; 15 id. 340. 
 
 Payment may be made through the inter- 
 vention of a third party who acts as the agent 
 of both parties : as, for example, a stake- 
 holder. If the money be deposited with him 
 to abide the event of a legal wager, neither 
 pittty can claim it until the wager is deter- 
 mined, and then he is bound to pay it to the 
 winner; 4 Campb. 87. If the wager is il- 
 legal, the depositor may reclaim the money 
 at any time before it is paid over ; 4 Taunt. 
 474; 5 Term, 406;' 8 B. & C. 221 ; 29 E. 
 L. & E. 424; 31 id. 452. And at any time 
 after notice given in such case he may hold 
 the stake-holder responsible, even though hfe 
 may have paid it over ; see 2 Para. Contr. 
 138. 
 An auctioneer is often a stake-holder, as 
 
 in case of money deposited to be made over 
 to the vendor if a good title is made out. In 
 such case the purchaser cannot reclaim except 
 on default in giving a clear title. But if the 
 contract has been rescinded by the parties 
 there need be no notice to the stake-holder in 
 case of a failure to perform the condition ; 2 
 M. & W. 244 ; 1 M. & R. 614. 
 
 A transfer of funds, called by the civil-law 
 phrase a payment by delegation, is payment 
 only when completely effected ; 2 Pars. Contr. 
 137 ; and an actual transfer of claim or credit 
 assented to by all the parties is a good pay- 
 ment; 4 Bingh. 112; 2 B. & Aid. 39; 5 id. 
 228; 7 N. H. 345, 397 ; 17 Mass. 400. This 
 seems to be very similar to payment by draw- 
 ing and acceptance of a bill of exchange. 
 
 Foreclosure of a mortgage given to secure 
 a debt operates as payment made when the 
 foreclosure is complete ; but if the property 
 mortgaged is not equal in value to the amount 
 of the debt then due, it is payment pro tanto 
 only ; 2 Greenl. Ev. § 324 ; 3 Mass. 562 ; 2 
 Gall. 152; 3 Mas. 474; 10 Pick. 396; 11 
 W^end. 106. A legacy also is payment, if 
 the intention of the testator that it should be 
 so considered can be shown, and if the debt 
 was liquidated at the death of the testator ; 
 1 Esp. 187; 12 Mass. 391; 5 Cow. 368. 
 See Legacy. 
 
 When money is sent by letter, even though 
 the money is lost, it is good payment, and 
 the debtor is discharged, if he was expressly 
 authorized or directed by the creditor so to 
 send it, or if such authority can be presumed 
 from the course of trade ; Peake, 67 ; 11 M. 
 & W. 233. But, even if the authority be 
 given or inferred, at least ordinary diligence 
 must be used by the debtor to have the money 
 safely conveyed. See 3 Mass. 249 ; Ry. & 
 M. 149; 1 Exch. 477; Peake, 186. Pay- 
 ment must be of the whole sum ; and even 
 where a receipt in full has been given for a 
 payment of part of an ascertained sum, it 
 has been held not to be an extinction of the 
 debt; 5 Co. 117; 2 B. & C. 477 ; 3 N. H. 
 618 ; 11 Vt. 60 ; 26 Me. 88 ; 37 id. 361 ; 10 
 Ad. & E. 121 ; 4 Gill. & J. 305; 9 Johns. 
 333; 17 id. 169; 11 How. 100. 
 
 But payment of part may be left to the 
 jury as evidence that the whole has been paid ; 
 5 Cra. 11 ; 3 N. H. 518 ; aiid payment of a 
 part at a different time ; 2 Mete. Mass. 283 ; 
 or place ; 3 Hawks, 580 ; or in any way more 
 beneficial to the creditor than that prescribed 
 bjr the contract, is good ; 15 M. & W. 23. 
 Giving a chattel, though of less value than 
 the debt, is a discharge ; Dy. 75 a ; 2 Litt. 
 49 ; 3 Barb. Ch. 621 ; or rendering certain 
 services, with the consent of the creditor ; 5 
 Day, 359 ; or assigning certain property ; S 
 Johns. 386 ; 13 Mass. 424. So if a stranger 
 pay a part, or give his note for a part, and 
 this is accepted, it is a good payment of the 
 debt ; 11 East, 390 ; 4 B. & C. 500 ; 13 Ala. 
 N. s. 353; 14 Wend. 116; 2 Mete. Mass. 
 283. And where a creditor by process of 
 law compels the payment of a part of his 
 
PAYMENT 
 
 394 
 
 PAYMENT 
 
 claim, by a suit for that part only, this is gene- 
 rally a discharge of the whole ; 11 S. & R. 
 78; see 16 Johns. 121. 
 
 The payment must have been accepted 
 knowingly. Many instances are given in the 
 older writers to illustrate acceptance : thus, 
 if the money is counted out, and the payee 
 takes a part and puts it in a bag, this is a 
 good payment, and if any be lost it is the 
 payee's loss ; 5 Mod. 398. Where A paid B 
 £100 in redemption of a mortgage, and B 
 bade C put it in his closet, and C did so, and 
 A demanded his papers, which B refused to 
 deliver, and A demanded back his money, 
 and B directed C to give it to him, and C did, 
 it was held to be a payment of the mortgage ; 
 Viner, Abr. Payment (E). 
 
 Generally, there can be but little doubt as 
 to acceptance or non-acceptance, and the 
 question is one of fact for the jury to deter- 
 mine under the circumstances of each particu- 
 lar case. Of course where notes or bank-bills 
 are given in payment of a debt, the evidence 
 that they were so given is to be the same as 
 evidence of any other fact relating to pay- 
 ment. 
 
 Evidence of payment. Evidence that 
 any thing has been done and accepted as pay- 
 ment is evidence of payment. 
 
 A receipt is prima facie evidence of pay- 
 ment : but a receipt acknowledging the re- 
 ception of ten dollars and acquitting and re- 
 leasing from all obligations would be a re- 
 ceipt for ten dollars only ; 2 Ves. 310 ; 5 B. 
 & Aid. 606 ; 18 Pick. 325 ; 1 Edw. Ch. 341. 
 And a receipt is only prima facie evidence 
 of payment ; 2 Taunt. 241 ; 7 Cow. 334 ; 4 
 Ohio, 346. For cases explaining this rule, 
 see, also, 2 Mas. 141 ; 11 Mass. 27 ; 9 Johns. 
 310 ; 4 H. & M'H. 219 ; 3 Gaines, 14. And 
 it may be shown that the particular sum 
 stated in the receipt was not paid, and, also, 
 that no payment has been made ; 2 Term, 
 366 ; 26 N. H. 12 ; 9 Conn. 401 ; 2 N. J. 
 59; 10 Humphr. 188; 13 Penn. 46. 
 
 Payment may be presumed by the jury in 
 the absence of direct evidence : thus, posses- 
 sion by the debtor of a security after the day 
 of payment, which security is usually given 
 upon payment of the debt, is prima facie 
 evidence of payment by the debtor ; 1 Stark. 
 374 ; 9 S. & K. 385. 
 
 If an acceptor produce a bill of exchange, 
 this is said to afford in England no presump- 
 tion of payment unless it is shown to have 
 been in circulation after he accepted it; 2 
 Campb. 439. See, also, 14 M. & W. Exch. 
 379. But in the United States such posses- 
 sion IS prima facie evidence of payment ; 7 
 S. & E. 116 ; 4 Johns. 296 ; 2 Pick. 204. 
 Payment is conclusively presumed from lapse 
 of time. After twenty years' non-demand, 
 unexplained, the court will presume a pay- 
 ment without the aid of a jury ; 1 Campb. 
 27 ; 14 S. & K. 15 ; 6 Cow. 401 ; 2 Cra. 
 180. Facts which. destroy the reason of this 
 rule may rebut the presumption ; 1 Pick. 60 ; 
 2 La. 481. And a jury may infer payment 
 
 from a shorter lapse of time, espp,ciallv if 
 there be attendant circumstances favoring tie 
 presumption ; 7 S. & E. 410. As to pre. 
 sumptions against the existence of the debt 
 see 5 Barb. 63. ^ 
 
 A presumption may arise from the conree of 
 dealing between the parties, or the regular 
 course of trade: thus, after two years it was 
 presumed that a workman had been paid as 
 it was shown that the employer paid 'his 
 workmen every Saturday night, and this man 
 had been seen waiting among others ; 1 Esd 
 296. See, also, 3 Campb. 10. 
 
 A receipt for the last year's or quarter" j 
 rent is prima facie evidence of the payment ' 
 of all the rents previously due ; 2 Pick. 20t 
 If the last instalment on a bond is paid indue 
 form, itis evidence that the others have been 
 paid ; if paid in a different form, that the 
 parties are acting under a new agreement. 
 
 Where receipts had been regularly given 
 for the same amount, but for a sum smaller 
 than was due by the agreement, it was held 
 evidence of full payment ; 4 Mart. La. 698. 
 
 Who may make payment. Payment may 
 be made by the primary debtor, and by other 
 persons from whom the creditor has a right to 
 demand it. 
 
 An agent may make payment for his prin- 
 cipal. 
 
 An attorney may discharge the debt against 
 his client ; 5 Bingh. 506. One of any num- 
 ber of joint and several obligors, or one of 
 several joint obligors, may discharge the debt; 
 Viner, Abr. Payment (B). Payment may 
 be made by a third person, a stranger to the 
 contract. 
 
 It may be stated, generally, that any act 
 done by any person in discharge of the debt, 
 if accepted by the creditor, will operate as 
 payment. In the civil law there are many 
 exceptions to this rule, introduced by the 
 operation of the principle of subrogation. 
 Most of these have no application in the com- 
 mon law, but have been adopted, in some in- 
 stances, as a part of the law merchant. See 
 Subrogation ; Conteibution. 
 
 To whom payment may be made. Pajr- 
 ment is to be made to the creditor. But it 
 may be made to an authorized agent. And 
 if made in the ordinary course of business, 
 without notice requiring the payment to he 
 made to himself, it is binding upon the prin- 
 cipal; 11 East, 36 ; 6 M. & 6. 166; Cowp. 
 257 ; 4 B. & Aid. 395 ; 3 Stark. Cas. 16; 1 
 Campb. 477. Payment to a third person by 
 appointment of the principal will be substan- 
 tially payment to the principal ; 1 Phill. Et. , 
 200. Payment to an agent who made the 
 contract with the payee (without prohibition) 
 is payment to the principal; 1 Campb. 339; 
 16 Johns. 86 ; 2 Gall. 56'5 ; 10 B. & C. 766. 
 But payment may be made to the principal 
 after authority given to an agent to receive; 
 ffMaule & S. 156. Payment to a broker or 
 factor who sells for a principal not named u 
 good; 11 East, 36. Payment to an agent 
 when he is known to be such will be good il 
 
PAYMENT 
 
 895 
 
 PAYMENT 
 
 made upon the terms authorized ; 1 1 East, 
 36 ; if there be no notice not to pay to him ; 
 3 B. & P. 485 ; 15 East, 65 ; and even after 
 notice, if the factor had a lien on the money 
 •when paid ; 5 B. & Aid. 27. If the broker 
 sell goods as his own, payment is good though 
 the mode varies from that agreed on ; 1 1 East, 
 86 ; 1 Maule & S. U7 ; 2 C. & P. 49. 
 
 Payment to an attorney is as effectual as 
 payment to the principal himself; 1 W. 
 Blackst. 8 ; 1 Wash. C. C. 9 ; 1 Call, 147. 
 So, also, to a solicitor in chancery after a de- 
 cree; 2 Ch. Cas. 38. The attorney of re- 
 cord may give a receipt and discharge the 
 judgment; 1 Call, 147; 1 Coxe, 214; 1 
 Pick. 347 ; 10 Johns. 220 ; 2 Bibb, 382 ; if 
 made within one year ; 1 Me. 257. Not so 
 of an agent appointed by the attorney to collect 
 the debt ; 2 JDougl. 623. Payment by an offi- 
 cer to an attorney whose power had been re- 
 voked before he received the execution did 
 not discharge the officer ; 13 Mass. 465 ; S 
 Yeates, 7. See, also, 1 Des. Ch. 461. Pay- 
 ment to one of two co-partners discharges the 
 debt; 8 Wend. 542; 15Ves. 198; 2 Blackf. 
 371 ; 1 111. 107; 6 Maule & S. 156 ; 1 Wash. 
 C. C. 77; even after dissolution; 4 C. & P. 
 108. And see 7 N. H. 568. So payment to 
 one of two joint creditors is good, though 
 they are not partners; 4 J. J. Marsh. 367. 
 But payment by a banker to one of several 
 joint depositors without the assent of the 
 others was held a void payment ; 1 M. & R. 
 145 ; Ry. & M. 364 ; 4 E. L. & E. 342. 
 
 Payment to the wife of the creditor is not 
 a discharge of the debt, unless she is ex- 
 pressly or impliedly his agent ; 2 Scott, N. B. 
 372; 1 Add. 316; 2 Freem. 178; 22 Me. 
 335. An auctioneer employed to sell real 
 estate has no authority to receive the pur- 
 ehase-money by virtue of that appointment 
 merely; 1 M. & R. 326. Usually, the terms 
 of sale authorize him to receive the purchase- 
 money ; 5 M. & W. 645. Payment was 
 made to a person sitting in the creditor's 
 counting-room and apparently doing his busi- 
 ness, and it was held good ; 1 M. & M. 200 ; 
 
 5 Taunt. 307 ; but payment to an apprentice 
 so situated was held not to be good ; 2 Cr. 
 
 6 M. 304. Generally, payment to the 
 agent must be made in money, to bind the 
 principal; 11 Mod. 71; 10 B. & C. 760. 
 Power to receive money does not authorize 
 an agent to commute ; 1 Wash. C. C. 454 ; 1 
 Pick. 347 ; nor to submit to arbitration ; 5 
 How. 891. See, also. Story, Ag. § 99. 
 
 An agent authorized to receive money can- 
 not bind his principal by receiving goods ; 4 
 C. & P. 501 ; or a note ; 1 Salk. 442 ; 2 Ld. 
 Eaym. 928 ; 5 M. & W. 645 ; but a subse- 
 quent ratification would remedy any such de- 
 parture from authority ; and ' it is said that 
 slight acts of acquiescence will be deemed 
 ratification. Payment to one of several joint 
 creditors of his part will not alter the nature" 
 of the debt so as to enable the others to sue 
 separately ; 4 Tyrwh. 488. Payment to one 
 of several executors has been held sufficient ; 
 
 S Atk. 695. Payment to a trustee generally 
 concludes the cestui que trust in law ; 5 B. & 
 Ad. 96. Payment of a debt to a marshal or 
 sheriff having custody of the person of the 
 debtor does not satisfy the plaintiff; 2 Show. 
 129 ; 14 East, 418 ; 4 B. & C. 32. Interest 
 may be paid to a scrivener holding the mort- 
 gage-deed or bond, and also the principal, if 
 he deliver up the bond ; otherwise of a mort- 
 gage-deed as to the principal, for there must 
 be a re-conveyance ; 1 Salk. 157. It would 
 seem, then, that in those states where no re- 
 conveyance is needed, a payment of the prin- 
 cipal to a person holding the security would 
 be good, at least prima facie. 
 
 Subsequent ratification of the agent's acts 
 is equivalent to precedent authority to receive 
 money ; Pothier, Obi. n. 528. 
 
 When to be made. Payment must be made 
 at the exact time agreed upon. This rule is 
 held very strictly in law ; but in equity pay- 
 ment will be allowed at a time subsequent, 
 generally when damages can be estimated 
 and allowed by way of interest ; 8 East, 208 ; 
 3 Pick. 414; 5 id. 106, 187. Where pay- 
 ment is to be made at a future day, of course 
 nothing can be demanded till the time of pay- 
 ment, and, if there be a condition precedent 
 to the liability, not until the condition has 
 been performed. And where goods had been 
 sold "at six or nine months' credit," the 
 debtor was allowed the option ; 5 Taunt. 338. 
 Where no time of payment is specified, the 
 money is to be paid immediately on demand ; 
 Viner, Abr.. Payment (H) ; 1 Pet. 455 ; 4 
 Rand. 346. When payment is to be made 
 at a certain time, it may be made at a different 
 time if the plaintiff will accept; Viner, Abr. 
 Payment (H) ; and it seems that the debtor 
 cannot compel the creditor to receive payment 
 before the debt is due. 
 
 Where to he made. Payment must be made 
 at the place agreed upon, unless both the 
 parties consent to a change. If no place of 
 payment is mentioned, the payer must seek 
 out the payee; Moore, P. C. 274; Shepp. 
 Touchst. 378; 2 Br. & B. 165; 2 Maule & 
 S. 120; 2 M. & W. 223; 20 E. L. & E. 
 498. 
 
 So, too, the creditor is entitled to call for 
 Ijayment of the whole of his claim at one 
 time, unless the parties have stipulated for 
 payment in parcels. 
 
 Questions often arise in regard to the pay- 
 ment of debts and legacies by executors and 
 administrators. These questions are gene- 
 rally settled by statute regulations. See Dis- 
 tributions ; Executor; Administra- 
 tor. 
 
 As a general rule, debts are to be paid first, 
 then specific legacies. The personal property 
 is made liable for the testator's debts, and, 
 after that is exhausted, the real estate, under 
 restrictions varying in the different states. 
 
 In the payment of mortgages, if the mort- 
 gage was made by the deceased, the personal 
 estate is liable to discharge the mortgage 
 debts; 2 Cruise, Digi 147. But where tfie 
 
PAYMENT INTO COURT 
 
 396 
 
 PEACE OP GOD 
 
 deceased acquired the land subject to the 
 mortgage, his real estate must pay the debt ; 
 3 Will. Exec. 1699; 3 Johns. Ch. 252; 2 P. 
 Wms. 664, n. 1 ; 2 Bro. C. C. 57 ; 5 Ves. 
 534 ; 24 Penn. 203. See Mortgage. 
 
 Effect of payment. The effect of payment 
 \s—Jirst, to discharge the obligation ; and it 
 may happen that one payment will discharge 
 several obligations by means of a transfer of 
 the evidences of obligation; Pothier, Obi. 
 554, n. Second, payment does not prevent 
 a recovery when made under a mistake of 
 fact. The general rule is that mistake or 
 ignorance of law furnishes no ground to re- 
 claim money paid voluntarily under a claim 
 of right; 2 Kent, 491 ; 2 Greenl. Ev. § 123. 
 But acts done under a mistake or ignorance 
 of an essential fact are voidable and relievable 
 both in law and equity. Laws of a foreign 
 country are matters of fact ; Story, Const. §8 
 407, 411; 9 Pick. 112; and the several 
 United States are foreign to each other in this 
 respect. See Conflict or Laws-; Foreign 
 Laws. In Kentucky and Connecticut there 
 is a power of recovery equally in cases of 
 mistake of law and of fact ; 19 Conn. 548 ; 
 3 B. Monr. 510 ; 4 id. 190. In Ohio it may 
 be remedied in equity; 11 Ohio, 223. In 
 New York a distinction is taken between 
 ignorance of law and mistake of law, giving 
 relief in the latter case; 18 Wend. 422; 2 
 Barb. Ch. 508. In England, money paid 
 under a mistake of law cannot be recovered 
 back ; 4 Ad. & E. 858. 
 
 Jhird, part payment of a note will have 
 the effect of waiver of notice as to the whole 
 sum. Fourth, payment of part of the debt 
 will bar the application of the Statute of 
 Limitations as to the residue ; 22 N. H. 219 ; 
 6 Md. 201 ; 8 Mass. 134 ; 28 E. L. & E. 
 454 ; even though made in goods and chattels ; 
 2 Cr. M. & R. 337 ; 4 Ad. & E. 71 ; 4 Scott, 
 N. R. 119. But it must be shown conclu- 
 sively that the pavment was made as part of 
 a larger debt ; 1 'Cr. M. & R. 252 ; 2 Bingh. 
 N. c. 241 ; 6 M. & W. 824 ; 20 Miss. 663 ; 
 24trf. 92; 9 Ark. 455 ; 11 Barb. 554; 24 
 Vt. 216. See, also, 2 Pars. Contr. 353- 
 359. 
 
 In Pleading. 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. See 
 Chitty, Plead. 
 
 See, also, generally. Parsons, Story, Leake, 
 and Chitty, on Contracts ; Greenleaf, Phil- 
 lipps, and Starkie, on Evidence ; Story, Par- 
 sons, and Byles, on Bills and Notes ; Green- 
 leafs Cruise, on Real Property ; Daniel, 
 Neg. Inst.; Kent, vol. iii.; Mass6, Droit, com- 
 merciel, vol. v. p. 229 et seq.; Domat,. Civil 
 Law ; Pothier, on Obligation ; Guvot, Re- 
 pertoire Universelle, Payment ; Comyns ; 
 Viner, Burn, and Dane, Abridgment, Pay- 
 ment. 
 
 PAYMENT ISTO COURT. In Prac- 
 tice. Depositing a sum of money with the 
 
 proper officer of the court by the defendant 
 in a suit, for the benefit of the plaintiff and 
 in answer to his claim. 
 
 It may be made in some states under »tat- 
 utory provisions; 18 Ala. 293; 7 111. jji! 
 iBarb. 21; 5 HaiT. Del. 17; 24 Gav21l! 
 
 16 Tex. 461 ; 11 Ind. 532 ; and see 3 E. L.' 
 & E. 185 ; 7 id. 152 ; and in most by a rule 
 of court granted for the purpose; 2 Bail 
 28 ; 7 Ired. 201 ; 1 Swan, 92 ; in which 
 case notice of an intention to apply must, in 
 general, have been previously given. 
 
 _ The effect is to divest the defendant of all 
 right to withdraw the money ; 1 Wend. N 
 Y. 191 ; 1 E. D. Smith, 398; 3 Watts, 248; 
 except by leave of court; 1 Coxe, 298; and 
 to admit conclusively every fact which the 
 plaintiff would be obliged to prove in order to 
 recover the money ; 1 B. & C. 3 ; 6 M. & 
 W. 9 ; 2 Scott, N. 8. 56 ; 9 Dowl. 21 ; 1 
 Dougl. Mich. 330 ; 24 Vt. 140 ; and see 7 
 Cush. 556 ; as, that the amount tendered is 
 due; 1 Campb. 558; 2 id. 341; SMaas. 365; 
 2 Wend. 431 ; 7 Johns. 315; for the cause 
 laid in the declaration ; 5 Bingh. 28, 32 ; 2 
 B. & P. 560 ; 5 Pick. 286 ; 6 id. 340; to the 
 plaintiff in the character in which he sues ; 3 
 Campb. 441 ; the jurisdiction of the court; 5 
 Esp. 19; that the contract was made; 3 
 Campb. 52 ; 3 Taunt. 95 ; and broken aa al- 
 leged ; IB. & C. 3 ; but only in reference to 
 the amount paid in ; 7 Johns. 315 ; 3 £. L. & 
 E. 548; and nothing beyond such facts; 1 
 Greenl. Ev. § 206. And see 2 M. & G. 208, 
 233 ; 5 C. & P. 247. 
 
 Generally, it relieves the defendant from 
 the payment of costs until judgment is re- 
 covered for a sum larger than that paid in; 1 
 Wash. 10; 3 Cow. 36; 3 Wend. 326; 2 
 Miles, 65 ; 2 Rich. 64 ; 24 "Vt. 140. As 
 to the capacity in which the officer receiving 
 the money acts, see 1 Coxe, 298; 2 Bail. 28; 
 
 17 Ala. 293. 
 
 PAYS. Country. Trial per pays, trial 
 by jury (the country). See Pais. 
 
 PEACE. The concord or final agreexmi 
 in a fine of lands ; 18 Edw. I. modus lemni} 
 finis. 
 
 The tranquillity enjoyed by a political so. 
 ciety, internally by the good order whicfc 
 reigns among its members, and externally by 
 the good understanding it has with all other 
 nations. Applied to the internal regulation! 
 of a nation, peace imports, in a technical 
 sense, not merely a state of repose and secu- 
 rity as opposed to one of violence or wantoe, 
 but likewise a state of public order and de- 
 corum; Hamm. N. P. 139; 12 Mod. 566. 
 See, generally. Bacon, Abr. Prerogative (U 
 4); Hale, Hist. Comm. Pleas, 160; 3 
 Taunt. 14 ; 1 B. & Aid. 227 ; Peake, 89; 1 
 Esp. 294 ; Harrison, Dig. Officer (V 4) ; 2 
 Benth. Ev. 319, note; Goo]? Bkhaviob; 
 Surety of the Peace. , 
 
 PEACE OP GOD. The words, "in Ae 
 peace of God and the said commonweailin, 
 then and there being," as used in indictments 
 
PEACE OP GOD 
 
 397 
 
 PECUNIARY 
 
 for homicide and in the definition of murder, 
 mean merely that it is not murder to kill an 
 alien enemy in time of war, provided such 
 killing occur in the actual exercise of war ; 
 Whart. Cr. Law, § 310 ; 13 Minn. 341. 
 
 PEACE OF GOD AND THE 
 CHURCH. The freedom from suits at law 
 ' between the terms. Spelman, Gloss.; Jacob, 
 Law Diet. 
 
 FECE. A measure of capacity, equal to 
 two gallons. See Measure. 
 
 PECULATION. In CivU Law. The 
 unlawful appropriation by a depositary of pub- 
 lic funds, of the property of the government 
 intrusted to his care, to his own use or that 
 of others. Domat, Suppl. au Droit Public, 
 1. 3, tit. 5. 
 
 PECULIAR. In Ecclesiastical Law. 
 A parish or church in England which has 
 junsdiction of ecclesiastical matters within 
 itself and independent of the ordinary. 
 
 They may be either — 
 
 Royal, which includes the sovereign's free 
 chapels ; 
 
 Of the archbishops, excluding the jurisdic- 
 tion of the bishops and archdeacons ; 
 
 Of the bishops, excluding the jurisdiction 
 of the bishop of the diocese in which they 
 are situated ; 
 
 Of the bishops in their own diocese, ex- 
 cluding archdiaconal jurisdiction ; 
 
 Of deans, deans and chapters, prebenda- 
 ries, and the like, excluding the bishop's ju- 
 risdiction in consequence of ancient composi- 
 tions. 
 
 The court of peculiars has jurisdiction of 
 causes arising in such of these peculiars as 
 are subject to the metropolitan of Canterbury. 
 In other peculiars the jurisdiction is exercised 
 by commissaries. 1 Phill. Eccl. 202, n. 245 ; 
 Skinn. 589 ; 3 Bla. Com. 65. 
 
 PBCULIUM (Lat. ). In ClvU Law. 
 The most ancient kind of peculium was the 
 peeulium prnfectitium of the Roman law, 
 which signified that portion of the property 
 acquired by a son or slave which the father 
 or master allowed him, to be managed as he 
 saw fit. In modern civil law there are other 
 kinds of t>ec«7i«m, viz.: peculium castrense, 
 which includes all movables given to a son by 
 relatives and fri.ends on his going on a cam- 
 paign, all the presents of comrades, and his 
 military pay and the things bought with it : 
 peculium quasi-castrense^ which includes all 
 acquired by a son by performing the duties of 
 a public or spiritual office or of an advocate, 
 and also gifts from the reigning prince ; pecu- 
 lium adventitium, which includes the property 
 of a son's mother and relatives on that side of 
 the house, and all which comes to him on a 
 second marriage of his parents, and, in gene- 
 ral, all his acquisitions which do not come 
 from his father's property and do not come 
 under castrense or quasi-castrense peculium. 
 
 "i^^ peculium prof ectitium remains the pro- 
 perty of the father. The peculium castrense 
 and quasi-castrense are entirely the property 
 
 of the son. The peculium adventitium be- 
 longs to the son ; but he cannot alien it nor 
 dispose of it by will ; nor can the father, un- 
 less under peculiar circumstances, alien it 
 without consent of the son. Mackeldey, Civ. 
 Law, §§ 557-559; Vicat, Voc. Jur.; Inst. 2. 
 9. 1 ; Dig. 15. 1. 6. 3 ; Pothier, ad Pand. 
 lib. 50, tit. 17, c. 2, art. 3. 
 
 A master is not entitled to the extraordi- 
 nary earnings of his apprentices which do not 
 interfere with his services so as to affect the 
 master's profits. An apprentice was therefore 
 decreed to be entitled to salvage, in opposi- 
 tion to his master's claim for it. 2 Cra. 270. 
 
 PECUNIA (Lat.). In CivU Law. 
 Property, real or personal, corporeal or in- 
 corporeal. Things in general (omnes res). 
 So the law of the Twelve Tables said, uti 
 quisque pater familias legasset super pecunid 
 tutelare rei sucb, ita jus esto : in whatever 
 manner a father of a family may have dis- 
 posed of his property or of the tutorship of 
 his things, let this disposition be law. 1 
 LeQons E16m. du Dr. Civ. Rom. 288. But 
 Paulus, in 1. 5, D. de verb, signif., gives it 
 a narrower sense than res, which he says 
 means what is not included within patrimony, 
 pecunia what is. Vicat, Voc. Jur. In a still 
 narrower sense, it means those things only which 
 have measure, weight, and number, and most 
 usually strictly money. Id. The general 
 sense of property occurs, also, in the old 
 English law. Leg. Edw. Confess, c. 10. 
 
 Flocks were the first riches of the ancients; 
 and it is from pecue that the words pecunia, pecu- 
 lium, peeulatui, are derived. In old English law 
 pecunia often retains the force of pecus. So often 
 in Domesday : pastura ibidem pecunia villce, i. e. 
 pasture for cattle of the village. So vivccpccunia, 
 live stock. Leg. Edw. Confess, c. 10 ; Emendat, 
 Willielmi Primi ad Leges Edw. Confess. ; Cowel. 
 
 PECUNIA NUMERATA (Lat.). Money 
 given in payment of a debt. Properly used 
 of the creditor, who. is properly said to num- 
 ber, i. e. count out, the money to the debtor 
 which he must pay, and improperly of the 
 debtor, who is said to number or count out 
 the money to the creditor, t. e. to pay it. 
 Vicat, Voc. Jur. ; Calvinus, Lex. 
 
 PECUNIA NON-NUMERATA (Lat.). 
 Money not paid or numbered. The exceptio 
 non-numeratce pecunia: (plea of money not 
 paid) is allowed to the principal or surety 
 by the creditor. Calvinus, Lex. 
 
 PECUNIA TRAJECTITIA (Lat.). A 
 loan of money which, either itself or in the 
 shape of goods bought with it, is to be carried 
 over the sea, tte lender to take the risk from 
 the commencement of voyage till arrival at 
 port of destination, and on that account to 
 have higher interest ; which interest is not es- 
 sential to the contract, but, if reserved, is 
 caWeAfcenusnauticum. Mackeldey, Civ. Law, 
 § 398 6. The term fcenus nauticum is sometimes 
 applied to the transaction as well as the interest, 
 making it coextensive with pecunia trajectitia. 
 
 PECUNIARY. That which relates to 
 money. 
 
PECUNIARY CAUSES 
 
 S98 PEINE FORTE ET DURE 
 
 PBCXTNIARY CAUSES. Causes in 
 ecclesiastical courts where satisfaction is sought 
 for withholding ecclesiastical dues or the doing 
 or neglecting some act connected with the 
 church. 3 Bla. Com. 88. For what causes 
 are ecclesiastical, see 2. Burn, Eccl. Law, 39. 
 
 FEDAG'IUM (Lat. pes, foot). Money 
 paid for passing by foot or horse through any 
 forest or country. Pupilla oculi, p. 9, c. 7 ; 
 Cassan de Coutum. Burgund. p. 118; Rot. 
 Vase. 22 Edw. III. m. 34. 
 
 FEDAULUS (Lat. pes, foot). In Civil 
 [■aw. A judge who sat at the foot of the 
 tribunal, i. e. on the lowest seats, ready to 
 try matters of little moment at command of 
 prsetor. Calvinus, Lex. ; Vieat. Voc. Jur. 
 
 PEDIGREE. A succession of degrees 
 from the origin : it is the state of the family 
 as far as regards the relationship of the dif- 
 ferent members, their births, marriages, and 
 deaths. This term is applied to persons or 
 families who trace their origin or descent. 
 
 On account of the difficulty of provitig in 
 the ordinary manner, by living witnesses, 
 facts which occurred in remote times, hearsay 
 evidence has been admitted to prove a pedi- 
 gree. See Declaration ; Hearsay. 
 
 PEDIS POSITIO (Lat. a planting or 
 placing of the foot). A term used to denote 
 an actual corporal possession. Possessio est 
 quasi pedis positio : possession is as it were a 
 pknting of the foot. 3 Co. 42 ; 8 Johns, per 
 Kent, C. J.; 5 Penn. 303 ; 2 N. & McC. 343. 
 See Pedis Possessio. 
 
 PEDIS POSSESSIO (Lat.). A foot- 
 hold; an actual possession. To constitute ad- 
 verse possession, there musthe pedis possessio, 
 or a substantial inclosure. 2 Bouvier, Inst. 
 n. 2193; 2N. & M'C. 343. 
 
 PEDLARS. Persons who travel about 
 the country with merchandise for the purpose 
 of selling it. . 
 
 Persons, except those peddling newspapers. 
 Bibles, or religious tracts, who sell, or offer 
 to sell, at retail, goods, wares, or other com- 
 modities, travelling from place to place, in 
 the street, or through different parts of the 
 country. Act of Congr. July 1, 1862. 
 
 They are obliged, under the laws of per- 
 haps all the states, and of the United States, 
 to take out licenses, and to conform to the 
 regulations which those laws establish. 
 
 If the provisions of a state license and tax 
 act are designed by the legislature to discrim- 
 inate against non-resident merchants, and 
 against goods sold from other states, in favor 
 of resident merchants, and goods held in the 
 state for sale, and if such discrimination be 
 the practical effect of the law, it is unconsti- 
 tutional, null and void. But the payment of 
 taxes in the same state of a merchant does 
 not of itself entitle him to sell his goods in all 
 other states free of taxation. Each state may 
 determine its own policy as to the levying of 
 license taxes, and its laws are valid so long 
 as they do not discriminate against citizens of 
 
 other states; 12 Fed. Rep. 638, note' u 
 Wall. 430; 8 id. 123; lOo'^U. S. 134 'i 
 U. S. 123 ; 33 Gratt. 898. See Commu'rce 
 12 Report. 650. "^i 
 
 PEERS (Lat pam). The vassal, of , 
 lord ; the freeholders of a neighborhood, be. 
 fore whom livery of seisin was to be made, 
 and before whom, as the jury of the county 
 trials were had. 2 Bla. Com. 316. Trial bj 
 a man's peers or equals is one of the righte 
 reserved by Magna Charta. 4 Bla. Com. 
 349. These vassals were called pares cwia 
 which title see. 1 Washb. R. P. 23. ' 
 
 The nobility of England, who, though of 
 different ranks, viz., dukes, marquises, earls 
 viscounts, and barons, yet are equal in their 
 privileges of sitting and voting in the house of 
 lords : hence they are called peers of the realm. 
 
 They are created by writ summoning them 
 to attend the house of lords by the title in- 
 tended to be given, or by letters patent di- 
 rectly conferring the dignity. The former is 
 the more ancient way ; but the grant by pat- 
 ent is more certain. See Sullivan, Lect. 19 
 a; 1 Woodd. Lect. 37. 
 
 Peers are tried by other peers in cases of 
 treason, felony, and misprision of the same. 
 In cases of treason, felony, and breach of the 
 peace, they have no privilege from arrest. 1 
 Sharsw. Bla. Com. 401*, n. 11. 
 
 Bishops who sit in parliament are peers; 
 but the word spiritual is generally added ; e, 
 g. '.' lords temporal and spiritual." 1 Sharsir. 
 Bla. Com. 401* n. 12. 
 
 Peerage may be for life, which does not 
 make the peer a lord of parliament, 1. 1, en- 
 title him to a seat in the house of lords; 1 
 Sharsw. Bla. Com. 401*, n. 10. A peerage 
 is not transferable, except with consent of 
 parliament ; Id. A peerage is lost by at- 
 tainder; 1 Bla. Com. 412*. 
 
 PEINE FORTE ET DURE (L. Fr.). 
 In English liavr. A punishment formerly 
 inflicted in England on a person who, being 
 arraigned of felony, refused to plead and put 
 himself on his trial, and stubbornly stood 
 mute. He was to be laid down, naked, on 
 his back, on the ground, his feet and head and 
 loins covered, his arms and legs drawn apart 
 by cords, and as much weight of iron or 
 stone as he could bear placed on his chest. He 
 was to have the next day three morsels of 
 barley bread, without drink ; the next, three 
 draughts, as much each time as he could 
 drink, of the nearest stagnant water to' the 
 prison, without bread ; and such was to behil 
 diet on alternate days, till he died. This 
 punishment was vulgarly called pressing to 
 death; 2 Reeve, Hist. Eng. Law, 134; 4 
 Bla. Com. 324; Cowel; Britton, c. 4. 
 fol. 11*. This punishment was introduced 
 between 31 Edw. III. and 8 Hen. IV; 4 
 Bla. Com. 324; Year B. 8 Hen. IV. 1. 
 Standing mute is now, by statute, in Eng- 
 land, equivalent to a confession or verdict ol 
 guilty ; 12 Geo. III. c. 20. See Mute. _ 
 
 The only instance in which this puniBli- 
 
PELT WOOL 
 
 899 
 
 PENITENTIARY 
 
 ment has ever been inflicted in this country is 
 that of Giles Cory, of Salem, who refused to 
 
 5 lead when arraigned as a witch ; Washb. 
 ud. Hist. 142; 1 Chandl. Cr. Tr. 122. 
 
 FELT WOOL. The wool pulled off the 
 skin or pelt of a dead ram. 
 
 FENAL ACTION. An action for re- 
 covery of statute penalty. 3 Steph. Com. 
 635. See Hawk. PI. Cr. Informatio. It is 
 distinguished from a popular or qui tarn ac- 
 tion, in which the action is brought by the in- 
 former, to whom part of the penalty goes. A 
 penal action or information is brought by an 
 officer, and the penalty goes to the king ; 1 
 Cliitty, Gen. Pr. 25, note; 2 Archb. Pr. 
 188. 
 
 FENAL BILL. The old name for a bond 
 with condition by which a person is bound to 
 pay a certain sum of money or do a certain 
 act, or, in default thereof, pay a certain sum 
 of money by way of penalty. Jacob, Law 
 Diet. Bill. 
 
 PENAL STATUTES. Those which in- 
 flict a penalty for the violation of some of 
 their provisions. 
 
 It is a rule of law that such statutes must 
 be construed strictly ; 1 Bla. Com. 88 ; Es- 
 pinasse, Pen. Actions, 1 ; Boscawen, Conv.; 
 Cro. Jac. 415 ; 1 Comyns, Dig. 444 ; 5 id. 
 360; 1 Kent, 467. They cannot, therefore, 
 be extended by their spirit or equity to other 
 offences than those clearly described and pro- 
 vided for ; 1 Paine, 32 ; 6 Cra. 171. 
 
 FENALTT. A clause in an agreement, 
 by which the obligor agrees to pay a certain 
 sum of money if he shall fail to fulfil the 
 contract contained in another clause of the 
 same agreement. 
 
 A penal obligation differs from an alternative 
 obligation, for this Is but one in Its essence ; 
 while a penalty always Includes two distinct en- 
 gagements, and when the first is fulfilled the 
 second is void. When a breach has taken place, 
 the obligor has his option to require the fulfil- 
 ment of the first obligation, or the payment of 
 the penalty, in those cases which cannot be re- 
 lieved in equity, when the penalty is considered 
 as liquidated damages. Dalloz, Diet. Obligation 
 mec Clause penale. 
 
 A distinction is made in courts of equity be- 
 tween penalties and forfeitures. In cases of for- 
 feiture for the breach of any covenant other than 
 a covenant to pay rent, relief will not be granted 
 in equity, unless upon the ground of accident, 
 fraud, mistake, or surprise, when the breach is 
 capable of compensation ; Eden, Inj. 33 ; 3 Ves. 
 69a ; 16 id. 403 ; 18 id. 58 : 4 Bouvier, Inst. n. 
 3915. . 
 
 For the distinction between a penalty and 
 liquidated damages, see Liquidated Damages. 
 
 The penalty remains unaffected although the 
 condition may have been partially performed : 
 as, in a case where the penalty was one thousand 
 dollars, and the condition was to pay an annuity 
 of one hundred dollars, which had been paid for 
 ten years, the penalty was still valid ; 5 Vt. 355. 
 
 The punishment inflicted by a law for its 
 violation. The term is mostly applied to a 
 pecuniary punishment. See 6 Pet. 404 ; 7 
 Wheat. 13 ; 10 id. 246 ; 1 Wash. C. C. 1 ; 
 2 id. 323; 1 Paine, 661; 1 Gall. 26; 2 id. 
 
 515 ; 1 Mas. 243 ; 7 Johns. 72; 1 Pick. 451 ; 
 4 Mass. 433 ; 15 id. 488 ; 8 Comyns, Dig. 
 846 ; 16 Viner, Abr. 301 ; 1 Vern. 83, n.; 
 1 Saund. 58, n. ; 1 Swanst. 318. 
 
 FENANCE. In Ecclesiastical Law. 
 
 An ecclesiastical punishment inflicted by an 
 ecclesiastical court for some spiritual offence. 
 Ayliffe, Parerg. 420. 
 
 PENCIL. An instrument made of plum- 
 bago, red chalk, or other suitable substance, 
 for writing without ink. 
 
 It has been holden that a will written with 
 a pencil could not on this account be annulled. 
 
 1 Phill. Eccl. 1 ; 2 id. 173. See Will. 
 PENDENTE LITE (Lat.). Pending the 
 
 continuance of an action ; while litigation con- 
 tinues. 
 
 An administrator is appointed pendente 
 lite, when a will is contested. 2 Bouvier, 
 Inst. n. 1557. See Administrator ; Lis 
 Pendens. 
 
 PENDENTES (Lat.). In Civil Law. 
 The fruits of the earth not yet separated from 
 the ground ; the fruits hanging by the roots. 
 Erskine, Inst. b. 2, lit. 2, s. 4. 
 
 PENETRATION. The act of inserting 
 the penis into the female organs of generation. 
 9 C. & P. 118. See 5 C. & P. 321 ; 8 id. 
 614; 9 trf. SI. It was once held that in 
 order to commit the crime of rape it is re- 
 quisite that the penetration should be such as 
 to rupture the hymen ; 5 C. & P. 321. But 
 this case has since been expressly overruled ; 
 
 2 Mood. Cr. Cas. 90 ; 9 C. & P. 752. 
 
 This has been denied to be sufficient to 
 constitute a rape without emission. The 
 statute 9 Geo. IV". c. 31, § 18, enacts that the 
 carnal knowledge shall be deemed complete 
 upon proof of penetration only. Statutes to 
 the same effect have been passed in some of 
 the United States; but these statutes have 
 been thought to be merely declaratory of the 
 common law ; 3 Greenl. Ev. § 210. See, 
 on this subject, 1 Hale, PI. Cr. 628 ; 1 East, 
 PI. Cr. 437 ; 1 Chitty, Med. Jur. 386-396 ; 1 
 Russ. Cr. Law, 860; Rape. 
 
 PENITENTIARY. A prison for the 
 punishment of convicts. 
 
 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, con- 
 victs 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 per- 
 mitted to see or speak with each other. Their 
 usual employments are shoemaking, weaving, 
 winding yarn, picking wool, and such like busi- 
 ness. The only punishments to wliich 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 corporeal punishments are prohib- 
 ited. 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, 
 
PENNSYLVANIA 
 
 400 
 
 PENNSYLVANIA 
 
 their best exertions to do their work well ; being 
 entirely secluded, they are of course unknown 
 to their fellow-prisoners, and can form no com- 
 bination to escape while in prison, or associations 
 to prey upon sooiety 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 expo- 
 sure of their fellow-prisoners when in a strange 
 place ; the labor of the convicts tends greatly to 
 defray the expenses of the prison. The disad- 
 vantages 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 in- 
 sane ; this has also been found to be otherwise : 
 that solitude is incompatible with the perform- 
 ance of business : that obedience to the disci- 
 pline of the prison could not be enforced. These, 
 and all other objections to this system, are by its 
 friends believed to be without force. 
 
 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 dur- 
 ing the night only ; during the working-hours in 
 the daytime they labor together in workshops ap- 
 propriated to their use. They eat their meals to- 
 gether, but in such a manner as not to be able 
 to speak with each other. Silence is also im- 
 posed upon them at their labor. They perform 
 the labor of carpenters, blacksmiths, weavers, 
 shoemakers, tailors, coopers, gardeners, wood- 
 sawyers, etc. The discipline of the prison is en- 
 forced by stripes, inflicted by the assistant keep- 
 ers, 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, inas- 
 much 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. 
 
 See, generally, on the subject of penitentiaries, 
 Beport of the Commissioners (Messrs. King,. 
 Shaler, and Wharton) on the Penal Code of 
 Pennsylvania ; De Beaumont and De Tocqueville, 
 on the Penitentiary System of the United States; 
 Mease on the Penitentiary System of Pennsyl- 
 vania ; 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 Lou- 
 isiana ; Encycl. Americ. Prison IHecipline ; De 
 I'Etat actnel des Prisons en France, par L. M. 
 Moreau Christophe ; Dalloz, Diet. JPeine, § 1, n. 
 3, and Supplem. Prisons et Bagnes. 
 
 PENNSYLVANIA. One of the thirteen 
 original states of the United States of Amer- 
 ica. 
 
 It received its name from a royal chari;er 
 granted March 4, 1681, by Charles II. to William 
 Penn. By that charter, Penn was constituted 
 the proprietary and governor of the province, 
 
 and vested with power to enact laws, with the 
 consent of the freemen, to execute said laws to 
 appoint judges and other officers, incorporate 
 towns, establish ports, levy cuf tome, import and 
 export goods, sell lands creating a tenure len 
 troops, make war, and exercise other attribute! 
 of sovereign power. Appeals in judicial matten 
 lay to the crown, and all laws were liable to be 
 avoided by the crown. 
 
 . The first frame of government was adopted 
 and promulgated on April 25, 1683. The govern, 
 ment was to be by the governor and freemen in 
 a provincial council and general assembly. Both 
 of the latter were chosen annually by the people 
 All laws were to originate with the council. A 
 governor, judges, and other officers were to he 
 appointed, during good behavior, by the governor 
 from a double list presented by the council or 
 assembly. 
 
 On April 2, 1683, a new frame was adopted, 
 reducing the numbers both of the council and 
 assembly. In 1693 the proprietary was deprived 
 of his government and the province placed under 
 the governmentof New York. But in 1694 Penn 
 was duly reinstated. 
 
 A new frame of government adopted on October 
 26, 1696, made some material alterations in the 
 existing order of things. The power of origi- 
 nating laws was thereby first conferred on the 
 assembly. 
 
 The charter of privileges granted by the pro- 
 prietaiT and accepted by the assembly on Octo- 
 ber 28, 1701, confirming the foregoing provisions 
 and making numerous others, continued the 
 supreme law of the province during the residue 
 of the proprietary government. 
 
 In 1776, after the declaration of American in- 
 dependence, a constitution was formed adapted 
 to the altered circumstances of the country, 
 which continued in force until 1790, when a new 
 one was substituted. This was amended in 1838 
 by the introduction of some very radical changes. 
 Other amendments were made in 1850, in 1857, 
 and in 1864. In 1874 a new constitution was 
 adopted, which remains still in force. 
 
 The form of government established is repub- 
 lican. Legislative, executive, and judicial pow- 
 ers are committed to three distinct departments, 
 neither of which can exercise the powers of any 
 other department. 
 
 The legislative power is vested in a general as- 
 sembly, consisting of a senate and house of rep- 
 resentatives, who sit in regular session everytwo 
 years, beginning the first Tuesday of January, 
 and at such other times as they are convened by 
 the governor. 
 
 The supreme executive power is vested in a 
 governor. 
 
 All judicial power is vested in a supreme court, 
 in courts of oyer and terminer and general jail 
 delivery, in courts of common pleas, orphans' 
 courts, courts of quarter sessions of the peace, 
 magistrate's courts, and in such other courts aa 
 the legislature may from time to time establish. 
 
 The members of the senate and house of rep- 
 resentatives, the governor, and all judicial offi- 
 cers, are elected by the people, and hold their 
 offices during limited periods. All elections by 
 the citizens are made by ballot. Every male 
 citizen twenty-one years of age, who shall have 
 been a citizen of the United States at least one 
 month, and who shall have resided in the state 
 one year, and in the election district where ne 
 offers to vote two months immediately preceding 
 the election, and who shall have within two years 
 paid a state or county tax assessed at least.wo 
 months, and paid at least one month, before tie 
 election, is entitled to the rights of an elector; 
 and a citizen of the United States, who had pre- 
 
PENNSYLVANIA 
 
 401 
 
 PENNSYLVANIA 
 
 Tiously been a qualified voter, or native born 
 citizen, of the state, and removed therefrom and 
 returned. Is entitled to vote after a new reBldence 
 within the state for six months, if he has resided 
 in the election district and paid taxes as afore- 
 said. Citizens of the United States, between the 
 ages of twenty-one and twenty-two, are entitled 
 to vote without the payment of taxes, subject to 
 the restrictions respecting residence already men- 
 tioned. For the purpose of voting, no person is 
 deemed to have gained or lost a residence by 
 reason of military or naval service, nor while a 
 student in any institution of learning, nor while 
 confined in any prison or other institution main- 
 tained at the puble expense. Qualified electors 
 in actual military service of the United States or 
 of the state, under a requisition from the presi- 
 dent of the United States, or under authority of 
 the commonwealth, are also entitled to vote, 
 under regulations prescribed by law, without 
 being present at their usual place of election. 
 
 The general election is held on the Tuesday 
 next following the first Monday of November in 
 every year, but this date is liable to be changed 
 by legislative enactment. Elections for munici- 
 pal, ward, borough, and township officers for 
 regular terms of service are held on the third 
 Tuesday of February. All laws regarding elec- 
 tions are uniform throughout the state. Elec- 
 tion districts are formed and divided as necessity 
 may arise by the courts of quarter sessions of 
 the respective counties. 
 
 Bribery on the part of a candidate is punished 
 by incapacity to hold offices of trust or profit 
 and on the part of all concerned by a depriva- 
 tion of the right of suffrage for a limited time. 
 
 Election officers are elected annually by the 
 citizens of each district. No person is eligible 
 who is In the service of the United States, or in 
 that of the state, or any county thereof, except 
 certain subordinate officers. Overseers of elec- 
 tions for each district may be appointed by the 
 court of common pleas. All contested elec- 
 tions of public officers are tried by the courts of 
 law. 
 
 The members of the general assembly are 
 chosen every second year, and whenever a va- 
 cancy occurs in either house the presiding officer 
 thereof issues his writ to fill such vacancy for 
 the residue of the terms. No person is compe- 
 tent to serve who has been convicted of an infa- 
 mous crime, or who is in the service of the 
 United States, or of the commonwealth. Mem- 
 bers of the senate must be at least twenty-five 
 years old, and representatives twenty-one. They 
 must have been citizens and inhabitants of the 
 state four years, and inhabitants of their respec- 
 tive districts one year next before their election 
 (unless absent on public business of the United 
 States or of the state) , and must reside in their 
 respective districts du^-ing continuance in office. 
 They are paid a fixed salary which can neither 
 be increased nor diminished during their term of 
 ofllce. 
 
 The members of the house of representatives 
 are apportioned and distributed every tenth year 
 among the various counties throughout the state 
 in proportion to the population, on a ratio ob- 
 tained by dividing the total population of the 
 state by two hundred. Every county is entitled 
 to at least one representative, and every city con- 
 taining one ratio or more, is entitled to elect sepa^ 
 rately its representatives. 
 
 Every city entitled to more than four represen- 
 tatives, or county containing over one hundred 
 thousand Inhabitants, is divided into districts 
 which elect. representatives according to their 
 population, but no district is entitled to elect 
 more than four representatives. 
 Vol. II 26 
 
 The term of office of a member of the house 
 of representatives is two years. 
 
 The state is divided into fifty senatorial dis- 
 tricts equal in population, each of which is en- 
 titled to elect one senator. Each county con- 
 taining oneor more senatorial ratiosof population 
 (such ratios to be estimated by dividing the 
 total population of the state by fifty) is entitled 
 to one senator for each ratio, and to an addi- 
 tional senator for a surplus of population ex- 
 ceeding three-fifths of a ratio. No county, how- 
 ever, forms a separate district unless it contains 
 four-fifths of a ratio, except where adjoining 
 counties are entitled to one or more senators, 
 when such county is entitled to a senator on ex- 
 ceeding one-half a ratio. No county is divided 
 unless entitled to two or more senators. No 
 ward, borough, or township is divided in the 
 formation ot districts, nor is any city or county 
 entitled to more than one-sixth of the total 
 number of senators. The term of office of sena- 
 tors is four years. 
 
 The powers and privileges of the legislature do 
 not differ materially from those which belong to 
 the legislatures of the other states of the United 
 States. The constitution Imposes numerous re- 
 strictions upon the general power to legislate, 
 notably prohibiting special legislation in many 
 instances and putting bounds to the power of 
 appropriating the public moneys to charitable ob- 
 jects. All laws relating to taxation and courts 
 of justice are general and uniform in their oper- 
 ation throughout the state. Restrictions are laid 
 upon the right of the state or of any munici- 
 pality therein to contract debts. Most of the 
 essential provisions of Magna Charta are em- 
 bodied in the Declaration of Rights. 
 
 The supreme executive power of the state is 
 vested in a governor, who is chosen by the elec- 
 tors qualified to elect members of the legislature. 
 His term of office is four years from the third 
 Tuesday of January next ensuing his election, 
 and he is incapable of re-election to office for the 
 next succeeding term. He must be at least 
 thirty years of age ; and he must 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 the state. No member of 
 congress or person holding any office under-the 
 United States or of the state can exercise the 
 office of governor. 
 
 The governor is ex officio commander-in-chief 
 of the army and navy of the commonwealth, and 
 of the militia, except when they are called into 
 the actual service of the United States. . It is 
 his duty to see that the laws of the common- 
 wealth are executed. With the advice and con- 
 sent of two thirds of the senate he appoints a 
 secretary of the commonwealth and an attorney 
 general during pleasure, and a superintendent of 
 public instruction for four years. If vacancies 
 in these offices occur during a recess of the 
 senate, he may grant commissions to ffil them to 
 expire at the close of the next session. In cases 
 of vacancies in the offices of auditor general, 
 state treasurer, secretary of internal affairs, 
 superintendent of public instruction, in a judi- 
 cial office, or any other elective office he may be 
 authorized to fill, he has power to fill the 
 vacancy (the consent of the senate being neces- 
 sary if in session) until the next general election, 
 unless the vacancy occurs within three months 
 before such election, in which case his nominee 
 remans in office until the second succeeding 
 general election. All commissions must be in 
 the name andby authority of the commonwealth, 
 and be sealed with the state seal and signed by 
 the governor. The governor has also power to 
 
PENNSYLVANIA 
 
 402 
 
 PENNYWEIGHT 
 
 remit fines and forfeitures, and grant reprieves, 
 commutations of sentence, and pardons, on 
 recommendation of three or more of a board of 
 pardons consisting of the lieutenant-goTernor, 
 secretary of the commonwealth, attorney-gene- 
 ral, and secretary of internal affairs. He may 
 convene the legislature on extraordinary occa- 
 sions, or the senate for the transaction of execu- 
 tive business, and in case of disagreement 
 between the two houses with respect to the time 
 of adjournment, he may adjourn them to such 
 time as he may think proper, not more remote 
 than four months. He may require from the 
 Various heads of executive departments informa- 
 tion as regards the duties of their respective of- 
 fices, and it is made his duty to communicate to 
 the legislature from time to time information of 
 the state of the commonwealth, and recommend 
 to their consideration such measures as he may 
 deem expedient. He has a veto power over 
 every bill passed by the legislature ; but if, 
 notwithstanding his objection, two-thirds of both 
 houses agree to the bill after reconsideration, it 
 becomes a law. 
 
 In case of the death or resignation of the gov- 
 ernor, his removal from office, or other disability, 
 the office devolves upon the lieutenant-governor, 
 and in case of a vacancy in that office, on the 
 president pro tem. of the senate. 
 
 Contested elections for governor or lieutenant- 
 governor are decided by a committee from both 
 houses of the assembly. The chief justice pre- 
 sides. In such cases the next preceding officers 
 continue in office until their successors are duly 
 qualified. 
 
 The other officers in the executive department 
 consist of the lieutenant-governor, a secretary of 
 Internal affairs, each elected for four years, 
 secretary of the commonwealth, attorney-gene- 
 ral and superintendent of public instruction ap- 
 pointed as above stated, auditor-general elected 
 for three years, and state treasurer elected for 
 two years. No persons elected to the last two 
 offices may hold the same office for two consecu- 
 tive terms. The governor and all civil officers 
 are liable to impeachment by the house of re- 
 presentatives. The senate have the exclusive 
 right to try all impeachments. No person can 
 be convicted without the concurrence of two- 
 thirdfe of that body, nor can the judgment ex- 
 tend beyond removal from office and incapacity 
 to hold offices of trust or profit under the state. 
 
 All appointed officers except judges and the 
 Buperintendent of public instruction may be 
 removed by the power who appointed them, and 
 all officers elected by the people, except gover- 
 nor, lieutenant-governor, members of the assem- 
 bly, 'and judges of the courts, may be removed 
 by the governor on reasonable cause on address 
 , of two-thirds of the senate. 
 
 The supreme court is the highest judicial tri- 
 bunal of the state. It is composed of seven 
 Judges elected by the qualified electors of the 
 state at large. They hold their offices for the 
 term of twenty-one years if they so long behave 
 themselves well, but are not again eligible. 
 They mustduringtheir term of office reside within 
 the commonwealth. The jurisdiction of the court 
 extends over the state, and the judges are, ex- 
 •officio, justices of oyer and terminer and general 
 jail delivery in the several counties. The court 
 Is principally a court of errors and appeals, and 
 its writs run to all other courts in the state. It 
 has original jurisdiction only in cases of' injunc- 
 tion where a party corporation is defend^t, of 
 habeas corpus, of mandamus to courts of infe- 
 rior jurisdiction, and of quo warranto to officers 
 whose jurisdiction extends over the whole state. 
 In all cases of felonious homicide, and in such 
 
 other criminal cases as are provided bv law t)i. 
 accused is entitled of right to remove the mrL 
 ceedings to this court for review. It holds ih 
 sessions once in each year at least, in Phlkdil 
 phia, Pittsburg, and Hariisburg, for theadiudl 
 cation of writs of error, appeals, et«. etc »i,rt 
 certiorari. '' " 
 
 For the courts of common pleas, the state !■ 
 divided into forty-four districts ; these districts 
 are subject to change by the legislature, but no 
 more than four counties can at auy time be in 
 eluded in one judicial district. Most civU issues 
 are tried by the courts of common pleas but 
 their decisions are reviewable by the supreme 
 court. All judges of these and every other 
 court (except those of the supreme court) re- 
 quired to be learned in the law, are elected by 
 the qualified electors of the district in which 
 they are to preside, and hold office for ten years 
 if they so long behave themselves well. They 
 must reside within their respective districts dur- 
 ing their terms of office, and are liable on suffi- 
 cient cause to be removed by the governor on 
 address of two-thirds of each house of the as- 
 sembly. Every district is entitled to one court 
 of common pleas, and one president judge 
 learned in the law, and such additional judges 
 as the general assembly may provide. In cverj 
 county constituting a separate judicial district 
 such associate judges must be learned in the law. 
 
 In Philadelphia there are four, and in Alle- 
 gheny county two courts of common pleas of 
 co-ordinate powers, but more may be created by 
 the legislature. In each county the judges of 
 the courts of common pleas are ex-oflicio justices 
 of oyer and terminer, quarter sessions of the 
 peace, and general gaol delivery, and of the 
 orphans' court, and within their respective dis- 
 tricts are justices of the peace as to criminal 
 matters. 
 
 In Philadelphia and Allegheny counties the 
 judges of the common pleas serve in rotation as 
 judges of quarter sessions and oyer and terminer. 
 
 In counties exceeding in population one hun- 
 dred and fifty thousand, separate orphans' courts 
 may be established, to consist of one or more 
 judges learned in the law. Only three such 
 are now established, viz.: in Philadelphia, Alle- 
 gheny, and Luzerne counties. Theorphans' courts 
 have general jurisdiction over the settlement of 
 decedents' estates, and the accounts of executors, 
 administrators, and guardians, subject, however, 
 to an appellate jurisdiction in the supreme court. 
 No new courts can be created to exercise the pow- 
 ers now vested in the courts of common pleas and 
 orphans' courts. All judges are paid by fixed 
 salaries, and can be called upon only to dis- 
 charge judicial duties. Aldermen, justices of 
 the peace, and magistrates are elected in the 
 various counties for terms of five years. A 
 register's office for the probate of wills ana 
 granting letters of administration, and also sn 
 office for recording deeds, are maintained in each 
 county. 
 
 Civil writs issue, generally, from the offices of 
 the prothonotaries or clerks of the courts m each 
 county ; and the style of all process is required 
 to be " The Commonwealth of Pennsylvania. 
 
 PENNY. The name of an English com, 
 of the value of one-twelfth part of a sW- 
 ling. 
 
 While the United States were colonies, each 
 adopted a monetary system composed of pounos, 
 shillings, and pence. The penny varied in value 
 In the different colonies. 
 
 PENNYTVEIGHT. A troy weight «» 
 weighs twenty-four grains, or one-twentieth 
 part of an ounce. See Weights. 
 
PENSION 
 
 403 
 
 PER CAPITA 
 
 PENSION. A stated and certain allow- 
 ance granted by the government to an indi- 
 vidual, or those who represent him, for valu- 
 able services performed by him for the coun- 
 try. The government of the United States' 
 has, by general laws, granted pensions ; (1) to 
 any officer of the army, including regulars, 
 volunteers, and militia, or any officer in the navy 
 or marine corps, or any enlisted man however 
 employed, in the military or naval service of 
 the United States, whether regularly mustered 
 or not, disabled by reason of any wound or 
 injury received, or disease contracted, while 
 in the service of the United States — and in 
 the line of duty ; (2) any master serving on a 
 gunboat, or any pilot, engineer, sailor, or other 
 person not regularly mustered, serving upon 
 any gunboat or war vessel of the United 
 States, disabled by any wound or injury re- 
 ceived BO as to be incapacitated for procuring 
 subsistence by manual labor ; (3) any volun- 
 teer, or person not an enlisted soldier, who 
 was incapacitated while rendering service in 
 any engagement under the order of an officer 
 of the United States ; (4) any acting assist- 
 ant, or contract surgeon disabled by any 
 wound or disease contracted in the line of 
 duty ; (5) any provost-marshal, deputy pro- 
 vostrmarsbal, or enrolling officer disabled in 
 the Une of his duty ; R. S. § 4692. Provis- 
 ion is also made for the payment of pensions 
 to the survivors of the wars of the revolution, 
 of 1812, and with Mexico; to the widows 
 and children of those who served in these 
 wars ; and also to those who served in the civil 
 war and to their widows and children under 
 specified conditions ; R. S. 4692-4791. By 
 the act of Jan. 25, 1879, ch. 23, it is p^-ovided 
 that all pensions which have been or may 
 hereafter be granted for a cause which origi- 
 nated in the service since March 4, 1861, shall 
 commence from the death or discharge of the 
 person ou whose account the claim has been 
 granted, if the disability occurred prior to the 
 discharge, and if the disability occurred after 
 the discharge, then from the date of actual 
 disability ; R. S. Supp. p. 468. 
 
 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. In Spanish liayr. A por- 
 tion 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 pos- 
 sessions in America it measured fifty feet front 
 and one hundred feet deep. 2 White, Rec. 
 49; 12 Pet. 444, noies. 
 
 PEOPLE. A state : as, the people of the 
 state of New York. A nation in its collective 
 and political capacity. 4 Term, 783. See 6 
 Pet. 467. 
 
 When the term the people is made use of in 
 constitutional law or discussions, it is often the 
 case that those only are Intended who have a 
 share in the government through being clothed 
 
 with the elective franchise. Thus, the people 
 elect delegates to a constitutional convention; 
 the people choose the officers under the consti- 
 tution, and so on. For these and similar pur- 
 poses, the electors, though constituting but a 
 small minority of the whole body of the com- 
 munity, nevertheless act for all, and, as being for 
 the time the representatives of sovereignty, they 
 are considered and spoken of as the sovereign 
 people. But in all the enumerations and guar- 
 anties of rights the whole people are intended, 
 because the rights of all are equal, and are meant 
 to be equally protected. Cooley, Const. 267. 
 
 The word people occurs in a policy of in- 
 surance. The insurer insures against "de- 
 tainments 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. See Body Politic ; Na- 
 tion. 
 
 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 Bla. Com. 181. See Ektky, 
 Writ or. 
 
 PER .aiS ET LIBRAM (Lat. ces, brass, 
 libram, scale). In Civil Lavr. A sale was 
 said to be made per ces et libram when one 
 called libripens held a scale (libra), which 
 the one buying struck with a brazen coin 
 (ces), and said, " I say, by the right of a Ro- 
 man, this thing is mine," and gave the coin 
 to the vendor, in presence of at least three 
 witnesses. This kind of sale was used in the 
 emancipation of a son or slave, and in making 
 a will. Calvinus, Lex. Mancipatio ; Vicat, 
 Voc. Jur. Mancipatio, 
 
 PER ALLITVIONEM (Lat.). In Civil 
 LaTV. By alluvion, or the gradual and im- 
 perceptible increase arising from deposit by 
 water. Vocab. Jur. Utr. Alluvia ; Angell & 
 A. Waterc. 53-57. 
 
 PER ANNULUM ET BACULUM 
 (Lat.). In Ecclesiastical Law. The sym- 
 bolical investiture of an ecclesiastical dignity 
 was per annulmn et baculum, i. e. by staff 
 and crosier. 1 Bla. Com. 878, 379; 1 Bum, 
 Eccl. Law, 209. 
 
 PER AVERSIONEM (Lat.). In CivU 
 Law. By turning away. Applied to a sale 
 not by measure or weight, but for a single 
 price for the whole in gross : e. g. a, sale of 
 all the wine of a vineyard for a certain price. 
 Vocab. Jur. Utr. Aversio. Some derive the 
 meaning of the phrase from a turning away 
 of the risk of a deficiency in the quantity 
 from the seller to the buyer; others, from 
 turning away the head, i. e. negligence in the 
 sale ; others think aversio is for .adversio. 
 Calvinus, Lex.; 2 Kent, 640; 4 id. 517. 
 
 PER CAPITA (Lat. by the head or polls). 
 When descendants take as individuals, and 
 not by right of representation (per stirpes), 
 they are said tb take per capita. For ex- 
 ample, if a legacy be given to the issue of A 
 
PER AND CUI 
 
 404 
 
 PERCEPTION 
 
 B, and A B at the time of his death shall 
 hare 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 id. 344 ; 2 
 Bla. Com. 218; 6 Cush. 158, 162 ; 2 Jarm. 
 Wills, Perkins' Notes, 47 ; 3 Beav. 451 ; 4 
 id. 239 ; 2 Steph. Com. 253 ; 3 id. 197*; 2 
 "Woodd. Lect. 114. 
 
 PER AND CUI. When a writ of entry- 
 is brought against a second alienee or de- 
 scendant from the disseisor, it is said to be in 
 the per and cut, because the form of the writ 
 is that the tenant had not entry but by and 
 under a prior allienee, to whom the intruder 
 himself demised it ; 3 Bla. Com. 181. See 
 Entry, Writ of. 
 
 PER CURIAM (Lat. by the court). A 
 phrase which occurs constantly in the reports. 
 It distinguishes the opinion or decision of the 
 court from that of a single judge ; Abb. Law 
 Die. 353. It designates, in Pennsylvania, 
 opinions written by the presiding justice. 
 
 PER FORMAM DONI (Lat. by the 
 form of the gift). According to the line of 
 descent prescribed in the conveyance of the 
 ancestor or donor of estate-tail ; 2 Bla. Com. 
 113*; 3 Harr. & J. 323; 1 Washb. B. P. 
 74, 81. 
 
 PER FRAUDEM (Lat.). 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 iifiad the plaintiff may reply 
 per fraudem ; 2 Chitty, PI. *675. 
 
 PER INFORTUNIUM (Lat. by misad- 
 venture). In Criminal La-w. Homicide 
 per infortunium, or by misadventure, is sai5 
 to take place when a man in doing a lawful 
 act, without any intent to hurt, unfortunately 
 kills another ; Hawk. PL Cr. b. 1, c. 11; 
 Post. Cr. Law, 258, 259 ; Co. 3d Inst. 56. 
 
 PER MINAS (Lat. by threats). When 
 a man is compelled to enter into a contract 
 by threats or menaces, either for fear of loss 
 of life or mayhem, he may avoid it after- 
 wards ; 1 Bla. Com. 131 ; Bacon, Abr. 
 Duress, Murder (A). See Duress. 
 
 PER MY ET PER TOUT (Law Fr. by 
 the moiety, or half, and by the whole). The 
 mode in which joint tenants hold the joint 
 estate, the effect of which, technically con- 
 sidered, is that for purposes of tenure and 
 survivorship each is the holder of the whole, 
 but for purposes of alienation each has only 
 his own share, which is presumed in law to 
 be equal.; 1 Washb. R. P. 406 ; 2 Bla. Com 
 182. 
 
 PER QUOD CONSORTIUM AMISIT 
 
 (Lat. by which he lost her company). If a 
 man's wife is so badly beaten or ill used that 
 thereby he loses her company and assistance 
 for any time, he has a separate remedy by an 
 
 action of trespass (in the nature of an action 
 on the case) per quod consortium amisii in 
 which he shall recover satisfaetibn in dam 
 ages ; 3 Bla. Com. 140 ; Cro. Jac. 501, 538- 
 1 Chitty, Gen. Pr. 69. ""i.iXfS, 
 
 PER QUOD SERVITIUM AMISIT 
 (Lat. by which he lost her or his service). 
 Where a servant has been so beaten or in- 
 jured that his or her services are lost to the 
 master, the master has an action of trespass 
 vi et armii, per quod servitium amisit, in 
 which he must allege and prove the special 
 damage he has sustained ; 3 Bla. Com. 142, 
 This action is commonly brought by the 
 father for the seduction of his daughter, in 
 which case very slight evidence of the relation 
 of master and servant is necessary ; bnt still 
 some loss of service, or some expense, must 
 be shown ; 6 East, 45 ; 6 td. 391 ; 11 id. n ■ 
 T. Raym. 459 ; 2 Term, 4 ; 5 B. & P. 466; 
 1 Stark. 287; 2 id. 493; 5 Price, 641; 11 
 Ga. 603 ; 15 Barb. 279 ; 18 id. 212 ; 8 N. 
 Y. 191; 11 id. 343; 14 id. 413; 20 Penn. 
 354 ; 5 Md. 211 ; 1 Wise. 209 ; 3 Sneed, 29. 
 
 PER STIRPES (Lat. slirps, trunk or 
 root of a tree or race). By or according to 
 stocks or roots ; by right of reprenseDtatjon. 
 Mass. Gen. Stat. 1860, c. 9, § 12; 6 Cash. 
 158, 162; 2 Bla. Com. 217, 218; 2 Steph. 
 253 ; 2 Woodd. Lect. 114, 115; 2 Kent, 
 425. 
 
 PER TOUT ET NON PER MY (Law 
 Fr. by the whole and not by the moiety). 
 Where an estate in fee is given to a man and 
 his wife, they cannot take the estate by 
 moieties, but both are seized of the entirety, 
 per tout et non per my. 2 Bla. Com. 182. 
 The late married woman's acts have been held 
 to abolish estates by entireties ; 76 111. 57 ; 
 56 N. H. 105 ; 76 N. Y. 262; coniro, 67 
 Ind. 412; s. c. 26 Am. Kep. 64, and n.; 
 25 Mich. 350; 56 Penn. 106. See 20 Alb. 
 L. J. 346. 
 
 PER UNIVERSITATBM (Lat. by the 
 whole). Used of the acquisition of any pro- 
 perty as a whole, in opposition to an acquisi- 
 tion by parts : e. g. the acquisition of an 
 inheritance, or of the separate property of 
 the son (^peculiuTri), etc. Calvinns, Lex. 
 Universitas. 
 
 PERAMBULATIONS FACIEHDA, 
 VTRIT DE. In English Law. The name 
 of a writ which is sued by consent of hih 
 parties when they are in doubt as to the 
 bounds of their respective estates: it is di- 
 rected to the sheriff to make perambulation, 
 and to set the bounds and limits between them 
 in certainty. Fitzh. N. B. 309. ^ , 
 
 " The writ de perambulatione faciendaii 
 not known to have been adopted in .practice 
 in the United States," says Professor Green- 
 leaf, Ev. § 146, n.; "but in several of the 
 states remedies somewhat similar in principle 
 have been provided by statutes." 
 
 PERCEPTION (From' per and capere). 
 The taking possession of. For example, a 
 
PERCH 
 
 405 
 
 PERILS OF THE SEA 
 
 lessee or tenant before perception of the 
 crops, «. e. before harvesting them, has a right 
 to offset any loss which may happen to them, 
 against the rent; but after the perception 
 they are entirely at his risk. Maclfeldey, 
 Civil Law, § 378. Used of money, it means 
 the counting out and payment of a debt. 
 Also used for food due to soldiers. Vicat, 
 Voc. Jur. 
 
 PERCH. The length of sixteen feet and 
 a half; a pole or rod of that length. Forty 
 perches in length and four in breadth make 
 an acre of land. 
 
 PERCOLATION. See Subtehhanean 
 Waters. 
 
 PBRDONATIO TJTLAGARIiB (Lat.). 
 In English Iia.vr. 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. 
 
 PERDUELLIO (Lat.). In CivU Law. 
 At first, an honorable enmity to the republic ; 
 afterwards, a traitorous enmity of a citizen ; 
 consisting in being of a hostile disposition 
 towards the republic, e. g. treason aiming at 
 the supreme power, -violating the privileges 
 of a Roman citizen by beating him, etc., at- 
 tempting any thing against the person of the 
 emperor, and, in general, any open hostility 
 to tne republic. Sometimes used for the ene- 
 my of traitor himself. PerduelUo was distin- 
 guished from crimen imminuloe majestatis, as 
 being an attempt against the whole republic, 
 punishable in comitia centuriata, by crucifix- 
 ion and by infamy after death. Calvinus, 
 Lex. ; Vicat, Voc. Jur. 
 
 FEREGRINI (Lat.). In ClvQ 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 had not 
 established relations. Savigny, Or. Rom. 
 §66. 
 
 PEREMFJORITTS (Lat. from ^en'mere, 
 to destroy). In Civil Law. That which 
 takes away or destroys forever : hence, ex- 
 ceptio peremptoria, a plea which is a per- 
 petual bar. See Peremtokt. Bracton, 
 lib. 4, c. 20 ; Fleta, lib. 6, c. 36, § 3 ; Cal- 
 vinus, Lex. 
 
 FEREMPTORT. Absolute ; positive. A 
 final determination to act, without hope of 
 renewing or altering. Joined to a substan- 
 tive, this word is freqnently used in law : as, 
 peremptory action ; Fitzh. N. B. 35, 38, 104, 
 108 ; peremptory nonsuit ; id. 5, 11 ; peremp- 
 tory exception ; Bracton, lib. 4, c. 20 ; peremp- 
 tory undertaking ; 3 Chitty, Pract. 112, 793 ; 
 peremptory challenge of jurors ; Inst. 4. 13. 
 9; Code, 7. 50. 2; 8. 36. 8; Dig. 5. 1. 70. 
 73. 
 
 FEREMFTOR7 CHALLENGE. A 
 
 challenge without cause given, allowed to 
 prisoner's counsel in criminal cases, up to a 
 certain number of jurors. 11 Chitty, Stat. 
 
 59, 689 ; 2 Hargr. St. Tr. 808 ; 4 id. 1 ; 
 Fost. Cr. Law, 42 ; 4 Bla. Com. 353*. 
 
 FEREMFTOR7 DEFENCE. A de- 
 fence 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 Bouvier, Inst. n. 4206. 
 
 f-EREMFTORT EXCEPTION. Any 
 defence which denies entirely the ground of 
 action ; 1 White, Rec. 283. So of a de- 
 murrer ; 1 Tex. 364. 
 
 FEREMPTOR7 MANDAMUS. A 
 mandamus requiring a thing to be done abso- 
 lutely. It is usually granted after failure to 
 show satisfactory cause on an alternative man- 
 damus. No other return will be permitted but 
 absolute obedience; 3 Bla. Com. *110; Tapp. 
 Mand. 400 et seq. See Mandamus. 
 
 PEREMPTORY PLEA . A plea which 
 goes to destroy the right of action itself; a 
 plea in bar or to the action ; 3 Steph. Com. 
 576 ; 3 Woodd. I.«ct. 57 ; 2 Saunders, PI. 
 & Ev. 645 ; 3 Bouvier, Inst. n. 2891. 
 
 PERFECT. Complete. 
 
 Tbis term is applied to obligations in order to 
 distinguish those wlilch may be enforced by law, 
 which are called perfect, from those which cannot 
 be so enforced, which are said to be imperfect. 
 
 PERFIDY. The act of one who has en- 
 gaged his faith to do a thing, and does not do 
 it, but does the contrary. Wolff, § 390. 
 
 PERFORMANCE. The act of doing 
 something. The thing done is also called a 
 performance : as, Paul is exonerated from the 
 obligation of his contract by its performance. 
 
 When a contract has been made by parol, 
 which under the Statute of Frauds and Per- 
 juries could not be enforced, because it was 
 not in writing, and the party seeking to avoid 
 it has. received the whole or a part perform- 
 ance of such agreement, he cannot afterwards 
 avoid it; 14 Johns. 15; 1 Johns. Ch. 273 ; 
 and such part performance will enable the 
 other party to prove it aliunde ; 1 Pet. C. C. 
 380 ; 1 Rand. 166 ; 1 Blackf. 58 ; 2 Day, 
 255; 5 id. 67 ; 1 Des. 350 ; 1 Binn. 218 ; 1 
 Johns. Ch. 131, 146: 3 Paige, Ch. 545. 
 
 PERIL. The accident by which a thing 
 ia lost. LeQons FA&m. Dr. Rom. § 911. 
 
 In Insurance, The risk, contingency, or 
 cause of loss insinred against, in a policy of 
 insurance. See Risk ; Insurance. 
 
 PERILS OF THE SEA. A phrase 
 contained in bills of lading, and a class of 
 dangers to goods carried, the effects of which 
 the carriers do not undertake to insure against 
 in virtue of their general undertaking. 
 
 Bills of lading generally contain an excep- 
 tion that the carrier shall not be liable for 
 " perils of the sea." What is the precise im- 
 port of this phrase is not, perhaps, very ex- 
 actly settled. In a strict sense, the words 
 perils of the sea denote the natural accidents 
 peculiar to the sea ; but in more than one in- 
 stance they have been held to extend to events 
 not attributable to natural causes. For in- 
 
PEKIPHKASIS 
 
 406 
 
 PERJURY 
 
 stance, they have been held to include a cap- 
 ture by pirates on tlie high sea, and a case of 
 loss by collision of two ships, where no blame 
 is imputable to the injured ship ; Ab. Shipp. 
 pt. 8, c. 4, §§ 1-6 ; Park. Ins. c. 3 ; Marsh, 
 Ins. b. 1, c. 7, p. 214; 1 Bell, Com. 579; 3 
 Kent, 299-307; 3 Esp. 67. 
 
 The burden of proof is upon the ship-ow^r 
 to show that an injury was occasioned by one 
 of .the excepted perils ; 28 Am. L. Eeg. 310. 
 
 It has indeed been said that by perils of 
 the sea are properly meant no other than in- 
 evitable perils or accidents upon the sea, and 
 that by such perils or accidents common carriers 
 are prima facie excused, whether there be a 
 bill of lading containing the expression of 
 "peril of the sea" or not; 1 Conn. 487. 
 
 It seems that the phrase perils of the sea, 
 on the western waters of the United States, 
 signifies and includes perils of the river; 8 
 Ala. 176. 
 
 If the law be so, then the decisions upon 
 the meaning of these words become important 
 in a practical view in all cases of maritime or 
 water carriage. 
 
 It seems that a loss occasioned by leakage 
 which is caused by rats gnawing a hole in the 
 bottom of the vessel is not, m the English 
 law, deemed a loss by peril of the sea or by 
 inevitable casualty ; 1 Wils. 281 ; 4 Campb. 
 203. But if the master had used all reason- 
 able precautions to prevent such loss, as by hav- 
 ing a cat on board, it seems agreed it would be 
 a peril of the sea or inevitable accident ; Abb. 
 Shipp. pt. 3, c. 3, § 9. But see 3 Kent, 299- 
 301. In conformity to this rule, the destruc- 
 tion of goods at sea by rats has, in Pennsyl- 
 vania, been held a peril of the sea, where 
 there has been no default in the carrier ; 1 
 Binn. 592. But see 6 Cow. 266 ; 3 Kent, 
 248, n. c. On the other hand, the destruc- 
 tion of a ship's bottom by worms in the course 
 of a voyage has, both in America and England, 
 been deemed not to be a peril of the sea, 
 upon the ground, it would seem, that it is a 
 loss by ordinary wear and decay ; Park, Ins. 
 c. 3 ; 1 Esp. 444 ; 2 Mass. 429. But see 2 
 Caines, 85. See, generally, Act of God ; 
 Fortuitous Event ; Marsh. Ins. ch. 7, ch. 
 12, § 1 ; Phill. Ins. ; Pars. Marit. Law. 
 
 PERIPHRASIS. Circumlocution ; the 
 use of other words to express the sense of one. 
 
 Some words are so technical to their meaning 
 that in cbar^ng offences in indictments tliey 
 must be used or the indictment will not be sus- 
 tained : for example, an indictment for treason 
 must contain the word traitoramly ; an indict, 
 ment for burglary, iurglarioualy ; and feloni- 
 ously must be introduced into every indictment 
 for felony ; 1 Chitty , Cr.Law, 242 ; Co. 8d Inst. 15 ; 
 Carth. 319 ; 2 Hale, PI. Cr. 172, 184 : 4 Bla. 
 Com. 307 ; Hawk. PI. Cr. b. 2, c. 85, s. 65 ; 1 
 East, PI. Cr. 115 ; Bacon, Abr. Indietmmt (G 1) ; 
 Comyns, Dig. Indictment (0 6) j Cro. Car. c. 87 
 
 PERISH. To come to an end ; to cease 
 to be ; to die. 
 
 What has never existed cannot said to have 
 perished. 
 
 When two or more persons die by the same 
 accident, as a shipwreck, no presumption arises 
 that one perished before the other. 
 
 PERISHABLE GOODS. Goods which 
 are lessened in value and become worse by be- 
 ing kept. 
 
 _ Losses due to the natural decay, deteriora- 
 tion, and waste of perishable goods in the 
 hands of a carrier are excusable. Reference 
 must always be had, however, to the nature 
 and inherent qualities of the articles in ques- 
 tion, their unavoidable, exposure at the time 
 and place, and under the general circum- 
 stances, while in the charge of a carrier of 
 ordinary prudence, and their condition when 
 entrusted to him ; Shoul. Bail. 397 ; 31 Am 
 Rep. 567. 
 
 PERJURY'. In Criminal Law. The 
 
 wilful assertion as to a matter of fact, opinion, 
 belief, or knowledge, made by a witness in 
 a judicial proceeding as part m his evidence, 
 either upon oath or in any form allowed by 
 law to be substituted for an oath, whether 
 such evidence is given in open court, or in an 
 affidavit, or otherwise, such assertion being 
 known to such witness to be false, and being 
 intended by him to mislead the court, jury, 
 or person holding the proceeding. 2 Whart. 
 Cr. Law, § 1244. 
 
 The wilful giving, under oath, in a judicial, 
 proceeding or course of justice, of false testi- 
 mony material to the issue or point of in- 
 quiry. 2 Bish. Cr. Law, § 1015. 
 
 The intention must be' wilful. The oath 
 must be taken and the falsehood asserted with 
 deliberation and a consciousness of the nature 
 of the statement made ; for if it has arisen 
 in consequence of inadvertency, surprise, or 
 mistake of the import of the question, there 
 was no corrupt motive ; Hawk. PI. Cr. b. 1, 
 c. 69, s. 2; Cro. Eliz. 492; 2 Show. 165; 4 
 McLean, 113; 3 Dev. 114; 7 Dowl. &R. 
 665; 5B. &C. 346; 7 C. &P. 17; 11 Q. 
 B. 1028 ; 1 Rob. Va. 729 ; & Ala. n. s. 602. 
 But one who swears wilfully and deliberately 
 to a matter which he rashly beheves, which 
 is false, and which he had no probable cause 
 for believing, is guilty of perjury ; 6 Binn, 
 249. See Baldw. 370; 1 Bail. 60; 4 Mc- 
 Lean, 113. 
 
 'ITie oath must he false. The partj; must 
 believe that what he is swearing is fictitious; 
 and if, intending to deceive, he asserts that 
 which may happen to be done without any 
 knowledge of the fact, he is equally crimina, 
 and the accidental truth of his evidence wiU 
 not excuse him ; Co. 3d Inst. 166; Hawk. 
 PI. Cr. b. 1, c. 69, s. 6. See 4 Mo. 47 ; 4 
 Zabr. 455 : 9 Barb. 667 ; 1 C. & K, 519. As, 
 if a man swears that C D revoked his will in 
 his presence, if he really had revoked it, but 
 it was unknown to the witness that he tm 
 done so, it is perjury ; Hetl. 97. 
 
 The party must he lawfully sworn. IM 
 person by whom the oath is administereo 
 must have competent authority to receive it, 
 
PERJURY 
 
 407 
 
 PERMISSION 
 
 an oath, therefore, taken before a private 
 person, or before an officer having no juris- 
 diction, will not amount to perjury. " For 
 ■where the court hath no authority to hold plea 
 of the cause, but it is coram non judice, there 
 perjury cannot be committed;" 1 Ind. 232; 
 1 Johns. 498; 9 Cow. 30; 3 M'Cord, 308; 
 4W. 165; 3C. &P. 419; 4 Hawks, 182; 1 
 N. &M'C. 546; 3 M'Cord, 308; 2 Hayw. 
 56; 8 Pick. 453; 12 Q. B. 1026; Dearsl. 
 C. C. 251 ; 2Ruas. Or. 520 ; Co. Sd Inst. 166. 
 
 The proceedings must he judicial ; 5 Mo. 
 21 ; 1 Bail. 595 ; 11 Mete. 406 ; 5 Humphr. 
 83; 1 Johns. 49; Wriglit, Ohio, 173; R. & 
 R. 459 ; 24 Alb. L. J. 312. Proceedings be- 
 fore those who are in any way intrusted with 
 the administration of justice, in respect of 
 any matter regularly before them, are con- 
 sidered as judicial for this purpose ; 2 Russ. 
 Cr. 518 ; Hawk. PI. Cr. b. 1, c. 69, s. 3. 
 See 9 Pet. 238 ; 2 Conn. 40 ; 11 id. 408 ; 4 
 M'Cord, 165. Perjury cannot be committed 
 where the matter is not regularly before the 
 court; 4 Hawks, 182; 2 Hayw. 56; 3 
 M'Cord, 308,; 8 Pick. 453; 1 N. & M'C. 
 546; 9 Mo. 824; 18 Barb. 407; 10 Johns. 
 167 ; 26 Me. 33 ; 7 Blackf. 25 ; 5 B. & Aid. 
 634; 1 C. &P. 258; 9 id. 513. 
 
 The assertion must be absolute. If a man, 
 however, swears that he believes that to be 
 true which he knows to be false, it will be 
 perjury; 10 Q. B. 670; 3 "Wils. 427 ; 2 W. 
 Blackst. 881 ; 1 Leach, 232 ; 6 Binn. 249 ; 
 Gilbert, Ev. Lofft ud. 662. It is immaterial 
 whether the testimony is given in answer to 
 a question or voluntarily; 3 Zabr. 49; 12 
 Mete. 225. Perjury cannot be assigned up- 
 on the valuation, under oath, of a jewel or 
 other thing the value of which consists in 
 estimation; Sid. 146; 1 Kebl. 510. But in 
 some cases a false statement of opinion may 
 become perjury ; 10 Q. B. 670 ; 15 III. 357 ; 
 3 Ala. N. s. 602 ; 3 Strobh. 147 ; 1 Leach, 
 C. C. 325. 
 
 The oath must be material to the question 
 depending; 1 Term, 63; 12 Mass. 274; 3 
 Murph. 123; 4 Mo. 47; 2 111.80; 9 Miss. 
 149; 6 Penn. 170 ; 2 Cush. 212. Where the 
 facts sworn to are wholly foreign from the 
 purpose and altogether immaterial to the mat- 
 ter in question, the oath does not amount to a 
 legal perjury ; 2 Russ. Cr. 521 ; Co. 3d Inst. 
 167; 8 Ves. 35; 2 RoUe, 41, 42, 369; 1 
 Hawk. PL Cr. b. 1, c. 69, s. 8 ; Bacon, Abr. 
 Perjury (A) ; 2 N. & M'C. 18; 2 Mo. 158. 
 But every question in cross-examination which 
 goes to the credit of a witness, as, whether he 
 has been before convicted of felony, is ma- 
 terial; 3 C. & K. 26 ; 2 Mood. C. C. 263 ; 1 
 C. & M. 655. And see 1 Ld. Raym. 257 ; 
 10 Mod. 195 ; 8 Rich. 456 ; 9 Mo. 824 ; 12 
 Mete. 225. False evidence, whereby, on the 
 trial of a cause, the judge is induced to ad- 
 mit other material evidence, even though the 
 latter evidence is afterwards withdrawn by 
 counsel, or though it was not legally receiv- 
 able, is indictable as perjury ; 2 Den. C. C. 
 302; 3C. &K. 302. 
 
 It is not within the plan of this work to cite 
 all the statutes passed by the general govern- 
 ment or the several states on the subject of 
 perjury. It is proper, however, here to 
 transcribe a part of the thirteenth section of 
 the act of congress of March 3, 1825, which 
 provides as follows : " If any person in any 
 case, matter, hearing, or other proceeding, 
 when an oath or affirmation shall be required 
 to be taken or administered under or by any 
 law or laws of the United States, shall, upon the 
 taking of such oath or affirmation, knowingly 
 and willingly swear or affirm falsely, every 
 person so offending shall be deemed guilty of 
 perjury, and shall, on conviction thereof, be 
 punished by fine, not exceeding two thousand 
 dollars, and by imprisonment and confinement 
 to hard labor, not exceeding five years, ac- 
 cording to the aggravation of the offence. 
 And if any person or persons shall knowingly 
 or willingly procure any such perjury to be 
 committed, every person so offending shall be 
 deemed guilty of subornation of perjury, and 
 shall, on conviction thereof, be punished by 
 fine, not exceeding two thousand dollars, and 
 by imprisonment and confinement to hard 
 labor, not exceeding five years, according to 
 the aggravation of the offence;" R. S. § 
 5392. See 4 Blackf. 146; 15 N. H. 83 ; 9 
 Pet. 238 ; 2 McLean, 135 ; 1 Wash. C. C. 
 84 ; 2 Mas. 69. 
 
 In general, it may be observed that a per- 
 jury is committed as well by making a false 
 affirmation as a false oath. See, generally, 
 16 Viner, Abr. 307 ; Bacon, Abr. ; Corayns, 
 Dig. Justices of the Peace (B 102-106) ; 4 
 Bla. Com. 137-139; Co. 3d Inst. 163-168; 
 Hawk. PI. Cr. b. 1, c. 69 ; Russ. Cr. b. 5, c. 
 1 ; Whart. Cr. L. ; Bish. Cr. Law ; 2 Chitty, 
 Cr. Law, c. 9 ; Rose. Cr. Ev. ; Burn, Just.; 
 Williams, Just. 
 
 PERMANENT TRESPASS. A tres- 
 pass consisting of trespasses of one and the 
 same kind, committed on several days, which 
 are in their nature capable of renewal or con- 
 tinuation, and are actually renewed or con- 
 tinued from day to day, so that the particular 
 injury done on each particular day cannot be 
 distinguished from what was done on another 
 day. In declaring for such trespasses, they 
 may be laid with a continuando ; 3 Bla. Com. 
 212 ; Bacon, Abr. Trespass (B 2, 12); 1 
 Saund. 24, n. 1. See Continuando ; 
 Trespass. 
 
 PERMISSION. A license to do a thing ; 
 an authority to do an act which without such 
 authority would have been unlawful. A per- 
 mission differs from a law : it is a check upon 
 the operations of the law. 
 
 Express permissions derogate from some- 
 thing which before was forbidden, and may 
 operate in favor of one or more persons, or 
 for the performance of one or more acts, or 
 for a longer or shorter time. 
 
 Implied permissions are those which arise 
 from the fact that the law has not forbidden 
 the act to be done. 
 
PERMISSIVE 
 
 408 
 
 PERSON 
 
 PERMISSIVE. Allowed ; that which 
 may be done : as, permissive waste, which 
 is the permitting real estate to po to waste. 
 When a tenant is bound to repair, he is punish- 
 able for permissive waste ; 2 Bouvier, Inst, 
 n. 2400. See Waste. 
 
 PERMIT. A license or warrant to do 
 something not forbidden by law : as, to land 
 goods imported into the United States, after 
 the duties have been paid or secured to be 
 paid. Act of Congr. March 2, 1799, s. 49, 
 cl. 2. See form of such a permit, Gordon, 
 Dig. App. II. 46. 
 
 PERMUTATION. In Civil Law. Ex- 
 change ; barter. 
 
 This contract is formed by the consent of the 
 parties ; but delivery is indispensable, for with- 
 out it it is a mere agreement. Dig. 31. 77. 4 ; 
 Code, 4. 64. 3. 
 
 Permutation differs from sale in this, that in 
 the former a delivery of the articles sold must 
 be made, while in the latter it is unnecessary. It 
 agrees with the contract of sale, however, in the 
 following particulars : that he to whom the de- 
 livery is made acquires the right or faculty of 
 prescribing ; Dig. 41. 8. 4. 17 ; that the contract- 
 ing parties are bouUd to guarantee to each other 
 the title of the things delivered ; Code, 4. 64. 1 ; 
 and that they are bound to take back the things 
 delivered when they have latent defects which 
 they have concealed ; Dig. 21. 1. 63. See Aso & 
 M. Inst. b. 2, t. 16, c. 1 ; Mutation ; Transfer. 
 
 PERNANCY (from Fr. prendre, to take). 
 A taking or receiving. 
 
 PERNOR OP PROFITS. He who re- 
 ceives the profits of lands, etc. A cestui qui 
 use, who is legally entitled and actually does 
 receive the profits, is the pernor of profits. 
 
 PERPETUAL. That which is to last 
 without limitation as to time : as, a. perpe- 
 tual statute, which is one without limit as to 
 time, although not expressed to be so. 
 
 PERPETUAL CURACY. The office 
 of a curate in a parish where there is no 
 spiritual rector or vicar, but where the curate 
 is appointed to officiate for the time by the 
 impropriator. 2 Burn, Eccl. Law, 55. 
 
 The church of which the curate is per- 
 petual. 2 Ves. Sen. 425, 429. See 2 Steph. 
 Com. 76 ; 2 Burn, Eccl. Law, 65 ; 9 Ad. & 
 E. 556. As to whether such curate may be 
 removed, see 2 Burn, Eccl. Law, 55. 
 
 PERPETUATING TESTIMONY. 
 The act by which testimony is reduced to 
 writing as prescribed by law, so that the same 
 shall be read in evidence in some suit or legal 
 proceedings to be thereafter instituted. 
 
 The origin of this practice may be traced 
 to the cannon law, cap. 5, X ut lite non con- 
 testata, etc. Bockmer, n. 4 ; 8 TouUier, n. 22. 
 Statutes exist in most of the states for this 
 purpose. Equity also furnishes means, to a 
 limited extent, for the same purpose. 
 
 PERPETUITY. Any limitation tending 
 to take the subject of it out of commerce for 
 a longer period than a life or lives in being, 
 and twenty-one years beyond, and, in case of 
 a posthumous child, a few months more, al- 
 lowing for the term of gestation. Randell, 
 
 Perp. 48. Such a limitation of property ag 
 renders it unalienable beyond the pajod 
 allowed by law. Gilbert, Uses, Sued ed 
 260, n. " 
 
 Mr. Justice Powell, in Scattergood vi. tist 
 13 Mod. 278, distinguished perpetuities into two 
 sorts, absolute and qualified ; meaning thereby 
 as it is apprehended, a distinction between a 
 plain, direct, and palpable perpetuity, and the 
 case where an estate is limited on a contingency 
 which might happen within a reaeonable com! 
 pass of time, but where the estate nevertheless 
 from the nature of the limitation, might he kept 
 out of commerce longer than was thouffht 
 agreeable to the policy of the common law. But 
 this distinction would not now lead to a better 
 understanding or explanation of the subject- 
 for whether an estate be so limited that it cannot 
 take effect until a period too much protracted or 
 whether on a contingency which may happen 
 within a moderate compass of time, it equally 
 falls within the line of perpetuity, and the limi- 
 tation is therefore void ; for it is not sufficient 
 that an estate may vest within the time allowed, 
 but the rule requires that it must. Eandell, 
 Perp. 49. See Cruise, Dig. tit. 32, c. 2.3 ; 1 Belt, 
 Suppl. to Ves. Jr. 406; 2 Ves. 357; 3 Saund. 
 ,388 ; Comyns, Dig. Chancery (4 6 1) ; 3 Ch. 
 Cas. 1 ; 2 Bouvier, Inst. n. 1890. 
 
 PERQUISITES. In its most extensiye 
 sense, perquisites signifies any thing gotten 
 by industry or purchased with money, differ- 
 ent from that which descends from a father or 
 ancestor. Bracton, 1. 2, c. 30, n. 3 ; 1. 4, 
 c. 22. In a more limited sense, it means 
 something gained by a place or office beyond 
 the regukr salary or fee. 
 
 PERSON. A man considered according 
 to the rank he holds in society, with all the 
 right to which the place he holds entitles him, 
 and the duties which it imposes. 1 Bouvier, 
 Inst. n. 137. 
 
 A corporation, which is an artificial person. 
 1 Bla. Com. 123; 4 Bingh. 669; Woodd. 
 Lect. 116; 1 Mod. 164. 
 
 The term, as is seen, is more extensive than 
 man, — including artificial beings, as corpora- 
 tions, as well as natural beings. But when flie 
 word " persons " is spoken of in legislative acts, 
 natural persons will be intended, unless some- 
 thing appear in the context to show that it ap- 
 plies to artificial persons ; 2 111. 178. 
 
 Natural persons are divided into males, or 
 men, and females, or women. Men are capable 
 of all kinds of engagements and functions, un- 
 less by reasons applying to particular indiyidu- 
 als. Women cannot be appointed to any public 
 office, nor perform any civil functions, except 
 those which the law specially declares them ea- 
 pable of exercising ; La. Civ. Code, art. 25. 
 
 They are also sometimes divided into free per- 
 sons and slaves. Freemen are those who haye 
 preserved their natural liberty, that is to say, 
 who have the right of doing what is not forbid- 
 den by the law. A slave is one who is lathe 
 power of a master to whom he belongs. Slaves 
 are sometimes ranked not with persons, but 
 things. But sometimes they are consideted as 
 persons ; for example, while African slavery ex- 
 isted in the United States, a negro was in con- 
 templation of law a person, so as to be <:»P?™' 
 of committing a riot in conjunction with white 
 men ; 1 Bay, 358. See Man. . 
 
 Persons are also divided into citizens ana 
 aliens, when viewed with regard to their poUO- 
 
PERSONA 
 
 40» 
 
 PERSONAL PROPERTY 
 
 cal rights. When they are considered in relation 
 to their civil rights, they are living or civilly 
 dead, see Civil Death; outlaws; and infamous 
 
 persons. 
 
 Persons are divided Into legitimates and bas- 
 tards, when examined as to their rights by birth. 
 
 When viewed in their domestic relations, they 
 are divided into parents and children ; husbands 
 and wives ; guardians and wards ; and masters 
 and servants. 
 
 For the derivation of the word person, as it Is 
 understood in law, see 1 TouUier, n. 168 ; 1 
 Bouvler, Inst. u. 1890, note. 
 
 In Criminal Law. The question has 
 arisen in a number of cases how far a court 
 may go in compelling a prisoner in a criminal 
 action to expose his person or a portion of it 
 as to exhibit bis personal peculiarities, e. g. 
 the length of his foot, or marks on his body, 
 in order to prove his identity. The better 
 opinion is that such action is not permissible, 
 as it in a manner compels the prisoner to tes- 
 tify against himself. This view is held in 
 45 How. Pr. 216 ; 3 Cr. L. Mag. 393 ; and 
 in 22 Alb. L. J. 144, it is said that on prin- 
 ciple a prisoner cannot, be compelled to say 
 anything, nor do anything, nor submit to any 
 act addressed to his actual person, which may 
 tend to criminate him. But see, contra, 71 
 N. C. 85; 25 La. An. 523 ; 14 Nev. 79 ; s. 
 C. 33 Am. Rep. 540, n. ; 74 N. C. 646 ; 5 
 Baxt. 619; 5 Jones, 269; 63 Ga. 667. The 
 subject is treated in 15 Cent. L. J. 2. 
 
 PERSONA (Lat.) . In Civil Law. 
 Character, in virtue of which certain rights 
 belong to a man and certain duties are im- 
 posed upon him. Thus, one man may unite 
 many characters (person^') : as, for example, 
 the characters of father and son, of master 
 and servant. Mackeldey, Civ. Law, § 117. 
 
 In its original signification, a mask ; after- 
 wards, a man in reference to his condition or 
 character (s<a«««). Vlcat, Voc. Jur. It is used 
 metaphorically of things, among which are 
 counted slaves. It is often opposed to res : as, 
 actio in personam and actio in rem. 
 
 Power and right belonging to a person in a 
 certain character (pro jure et potestate per&once 
 competente) . Vicat, Voc. Jur. Its use is not 
 confined to the living, but is extended to, the 
 dead and to angels. Jd. A statue in a foun- 
 tain whence water gushes. 
 
 PERSONAL. Belonging to the person. 
 
 This adjective is frequently employed in con- 
 nection with substantives, things, goods, chat- 
 tels, actions, right, duties, and the like : as, per- 
 sonal estate, put in opposition to real estate ; 
 personal actions, in contradistinction to real 
 actions. Personal rights are those which belong 
 to the person ; personal duties are those which 
 are to be performed in person. 
 
 PERSONAL ACTION. Id Practice. 
 
 In the Civil Law. An action in which 
 one person (the actor) sues another (the reus) 
 in respect of some obligation which he is'un- 
 der to the actor either ex contractu or ex de- 
 licto. It will be seen that this includes all 
 actions against a person, without reference to 
 the nature of the property involved. In a 
 limited sense of the word action in the civil 
 law, it includes ^only personal action, all 
 
 others being called petitions. See Real 
 Action. 
 
 At the Common Law. An action 
 brought for the recovery of personal pro- 
 perty, for the enforcement of some contract 
 or to recover damages for its breach, or for 
 the recovery of damages for the commission 
 of an injury to the person or property. Such 
 arise either upon contracts, as account, as- 
 sumpsit, covenant, debt, and detinue (see 
 these words), or for wrongs, injuries, or torts, 
 as trespass, trespass on the case, replevin, 
 trover (see these words). Other divisions 
 of personal actions are made in the various 
 states ; and in Vermont and Connecticut an 
 action is in use called the action of book 
 debt. 
 
 PERSONAL CHATTELS. Strictly, 
 and properly speaking, things movable, 
 which may be annexed to or attendant on 
 the person of the owner, and carried about 
 with him from one part of the world to 
 another ; 2 Bla. Com. 388. 
 
 PERSONAL CONTRACT. A con- 
 tract as to personal property. A covenant 
 (or contract) personal relates only to matters 
 personal as distinguished from real, and is 
 binding on the covenantor (contractor) dur- 
 ing his life, and on bis personal representa- 
 tives after his decease, in respect of assets ; 3 
 Coke, 22 a. 
 
 PERSONAL COVENANT. A coven- 
 ant which binds only the covenantor and his 
 personal representatives in respect to assets, 
 and can be taken advantage of only by the 
 covenantee. 
 
 A covenant which must be performed by 
 the covenantor in person. Fitzh. N. B. 340. 
 
 All covenants are either personal or real ; but 
 some confusion exists in regard to the division 
 between them. Thus, a covenant may be per- 
 sonal as regards the covenantor, and real as re- 
 gards the covenantee ; and different definitions 
 have been given, according to whether the rights 
 and liabilities,of the covenantor or the covenantee 
 have been in consideration. It is apprehended, 
 however, that the prevalent modern usage is to 
 hold a covenant real, if it is real, — that is, runs 
 with the land so as to apply to an assignee, 
 either as r^ards the covenantor or the covenan- 
 tee. See Piatt, Cov. 61; 4 Bla. Com. 304, n., 
 305, n.; 3 N. J. 260 ; 7 Gray, 88. 
 
 PERSONAL LIBERT'S'. See 
 
 LiBEKTY. 
 
 PERSONAL PROPERT-r. The right 
 or interest which a man has in things per- 
 sonal. 
 
 The right or interest less than a freehold 
 which a man has in realty, or any right or 
 interest which he has in things movable. 
 
 Personal property is to be distinguished from 
 things personal. There may be, for example, a 
 personal estate in realty, as chattels real ; but 
 the only property which a man can have in things 
 personal must be a personal property. The essen- 
 tial idea of personal property is that of property 
 in a thing movable or separable from the realty, 
 or of perishability or possibility of brief duration 
 of interest as compared with the owner's life in 
 a thing real, without any action on the part of 
 
PERSONAL REPRESENTATIVES 410 
 
 PERVISE, PARVISE 
 
 the owner. See 2 Bla. Com. 14 and notes, 
 884 and notes. 
 
 A crop growing in the ground is personal 
 property so far as not to be considered an in- 
 terest in land, under the Statute of Frauds ; 
 11 East, 362 ; 12 Me. 337 ; 6 B. & C. 829 ; 
 9 id. 561 ; 10 Ad. & E. 753. 
 
 It is a general principle of American law 
 that stock held in corporations is to be con- 
 sidered as personal property; Walker, Am. 
 Law, 211 ; 4 Dane, Abr. 670 ; Sullivan, Land 
 Tit. 71 ; 1 Hill. R. P. 18 ; though it was held 
 that such stock was real estate ; 2 Conn. 567 ; 
 but the rule was then changed by the legisla^ 
 ture. 
 
 Title to personal property is acquired — 
 first, by original acquisition by occupancy : 
 as, by capture in war, by finding a lost thing ; 
 second, by original acquisition Isy accession ; 
 third, by original acquisition by intellectual 
 labor : as, copyrights and patents for inven- 
 tions ; fourth, by transfer, which is by act of 
 law, by forfeiture, by judgment, by insolvency, 
 by intestacy ; ffth, by transfer by act of the 
 party, by gift, by sale. See, generally, 16 
 Viner, Abr. 335; 8 Comyna, Dig. 474, 562; 
 
 1 Belt, Suppl. Ves. 49, 121, 160, 198, 255, 
 368, 369, 399, 412, 478; 2 id. 10, 40, 129, 
 290, 291, 341 ; 1 Vern. 3, 170, 412; 2 Salk. 
 449; 2 "Ves. 59, 176, 261, 271, 336, 683; 7 
 id. 453 ; Wms. Pers. Prop. See Pew ; Pbo- 
 PEETY ; Reai, Property. 
 
 FERSONAIi REPRESENTATIVES. 
 
 The executors or administrators of the per- 
 son deceased. 6 Mod. 155; 6 Ves. 402; 1 
 Madd. 108; 118 Mass. 198. 
 
 In wills, these words are sometimes con- 
 strued to mean next of kin ; 3 Bro. C. C. 224 ; 
 
 2 Jarm. Wills, 112 ; 1 Beav. 46 ; 1 R. & M. 
 587 ; that is, those who would take the per- 
 sonal estate under the Statute of Distribu- 
 tions. They have been held to mean descend- 
 ants ; 19 Beav. 448. 
 
 PERSONAL SECURITY. The legal 
 and uninterrupted enjoyment by a man of his 
 life, his body, his health, and his reputation. 
 1 Bouvier, Inst. n. 202. 
 
 PERSONAL STATUTE. A law whose 
 principal, direct, and immediate object is to 
 regulate the condition of persons. 
 
 The term is not properly in use in the common 
 law, although Lord Mansfield, in 2 W. Blackst. 
 334, applied it to those legislative acts which re- 
 spect personal transitory contracts, but it is occa- 
 sionally used in the sense given to it in civil law 
 and which is adopted as its definition. It is a 
 law, ordinance, regulation, or custom, the dis- 
 position of which afifects the person and clothes 
 him with a capacity or incapacity which he does 
 not change with his abode. See 3 Kent, 613. 
 
 PERSONALTY. That which is mova- 
 ble ; that which is the subject of personal 
 property and not of a real property. 
 
 PERSONATE. In Criminal Law. To 
 assume the character of another without law- 
 ful authority, and, in such character, do some- 
 thing to his prejudice, or to the prejudice of 
 another, without his will or consent. 
 
 The bare fact of personating another fop 
 the purpose of fraud is no more than a cheat 
 or misdemeanor at common law, and punish 
 able as such; 2 East, PI. Cr. lOlO; 2 E««," 
 Cr. 479. ' *'■ 
 
 By statute punishment is inflicted in the 
 United States courts for false personatinn of 
 any person under the naturalization laws "and 
 of any person holding a claim or debt against 
 the government; R. S. §§ 5424, 5436. See 
 generally, 2 Johns. Cas. 293 ; 16 Viner, Abr' 
 336 ; Comyns, Dig. Action on the Case for a 
 Deceit (A3). •' 
 
 PERSUADE, PERSUADING. Toper- 
 suade is to induce to act. Persuading is in- 
 ducing others to act. Inst. 4. 6. 23 ; Dis ifS 
 3. 1. 5. ^' ■' 
 
 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, etc., hy persuadin'g 
 others to enlist for that purpose, etc., he shaU 
 be adjudged guilty of high treason," the word 
 persuading thus used means to succeed ; and 
 there must be an actual enlistment of the per- 
 son persuaded in order to bring the defendant 
 within the intention of the clause ; 1 Dall. 
 39 ; 4 C. & P. 369 ; 9 id. 79 ; Administkb- 
 ING. See 2 Ld. Raym. 889. The attempt 
 to persuade a servant to steal his master"! 
 goods, or other person to undertake a larceny 
 or other crime, is an indictable misdemeanor, 
 although the person approached declines the 
 persuasion ; 1 Bish. Cr. L. § 767. 
 
 If one counsels another to suicide, and it is 
 done in his presence, the adviser is as guilty 
 as the principal. Accordingly, where two 
 persons, agreeing to commit suicide together, 
 employ means which take effect in one only, 
 the survivor is a principal in the murder of 
 the other ; 8 C. & P. 418 ; 1 Bish. Cr. L. § 
 652. 
 
 PERSUASION. The act of influencing 
 by expostulation or request. While the per- 
 suasion is confined within those limits vhich 
 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 tes- 
 tator that he would be deprived of a perfectly 
 free will, it would vitiate the instrument; 8 
 S. & R. 269; 5 id. 207; 13 id. 323. 
 
 PERTINENT (from Lat. ;)ertin«8; be- 
 long to). Which tends to prove or disprove 
 the' allegations of the parties. Willes, 319. 
 Matters which have no such tendency sre 
 called impertinent; 8 TouUier, n. 22. 
 
 PERTURBATION. This is a technical 
 word which signifies disturbance or infringe- 
 ment of a right. It is usually applied to the 
 disturbance of pews or seats in a church. In 
 the ecclesiastical courts, actions for these w- 
 turbances are technically called "suits for 
 perturbation of seat." 1 Phill. Eccl. S2S. 
 See Pew. 
 
 PERVISE, PARVISE. The 
 yard at Westminster. 
 
PESAGE 
 
 411 
 
 PETITORY 
 
 A place where counsel used to advise with 
 their clients. 
 
 An aJfternoon exercise or moot for the in- 
 struction of students. Cowel ; Blount. 
 
 FESAOB. In England, a toll charged 
 for weighing avoirdupois goods other than 
 wool. 2 Chitty, Com. Law, 16. 
 
 PETIT (sometimes corrupted into ]>etty). 
 A French word signifying little, small. It is 
 frequently used : as, petit> larceny, petit jury, 
 petit treason. 
 
 PETIT CAPE. When the tenant is 
 summoned on a plea of land, and comes on 
 the summons and his appearance is recorded, 
 if at the day given him he prays the view, 
 and, having it given him, makes default, then 
 shall this writ issue from the king. Old N. 
 B. 162; Reg. Jud. fol. 2; Fleta, lib. 2, c. 
 44. See Grand Cape. 
 
 PETIT, PETIT JURY. The ordinary 
 jury of twelve, as opposed to the grand jury, 
 which was of a larger number and whose 
 duty it was to find bdls for the petit jury to 
 try ; 3 Bla. Com. 351. 
 
 PETIT, PETTY LARCENY. Larceny 
 to the amount of twelve pence or less ; 4 Bla. 
 Com. *229. See 1 Bish. Cr. Law, §§ 378, 
 379. See Lakcbny. 
 
 PETIT SERJEANTY. A tenure by 
 which lands are held of the crown by the ser- 
 vice of rendering yearly some small imple- 
 ment of war, as a lance, an arrow, etc. 2 
 Bla. Com. 82. Though the stat. 12 Car. II. 
 took away the incidents of livery and primer 
 seisin, this tenure still remains a dignified 
 branch of socage tenure, from which it only 
 differs in name on account of its reference to 
 war. Such is the tenure of the grants to the 
 dukes of Marlborough and Wellington. 
 
 PETIT 3;REAS0N. In EngUsh Law. 
 The killing of a master by his servant, a hus- 
 band by his wife, a superior by a secular or 
 religious man. In the United States, this 
 is like any other murder. See High Tkea- 
 son; Treason. 
 
 PETITE ASSIZE. Used in contradis- 
 tinction from the grand assize, which was a 
 jury to decide on questions of property. 
 Petite assize, a jury to decide on questions of 
 possession. Britton, c. 42 ; Glanville, lib. 
 2, e. 6, 7, Home, Mirror, lib. 2, c. de Novel 
 Disseisin. ^ 
 
 PETITION. An instrument of writing 
 or printing, containing a prayer from the per- 
 son 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. 
 
 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. 
 
 Petitions are frequently presented to the 
 cflurts 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 he believes to 
 be true. 
 
 PETITION OF RIGHT. In English 
 Law. A proceeding in chancery by which a 
 subject may recover property in the possession 
 of the king. 
 
 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 peti- 
 tion 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 de- 
 livered to the chancellor to be executed ac- 
 cording to law. Co. 4th Inst. 419, 422 6; 
 Mitf. Eq. PI. 30, 31 ; Cooper, Eq. PI. 22, 23. 
 
 The modern practice is regulated by statute 
 23 and 24 Vict. c. 34, which provides that 
 the petition shall be left with the home secre- 
 tary for Her Miyesty's consideration, who, if 
 she shall think fit, may grant her fiat that 
 right be done, whereupon the fiat having been 
 served on the solicitor of the treasury, an an- 
 swer, plea, or demurrer shall be made in be- 
 half of the crown, and the subsequent plead- 
 ings be assimulated as far as practicable to the 
 course of an ordinary action ; Mozl. & W. 
 
 The stat. 3 Car. I., being a parliamentary 
 declaration of the liberties of the people. 1 
 Bla. Com. 128, 
 
 PETITORY. That which demands or 
 petitions ; that which has the quality of a 
 prayer or petition ; a right to demand. 
 
 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, petition, or 
 other legal proceeding, as distinguished from a 
 suit where only the riglit of possession and not 
 the mere right of property is in controversy. 1 
 Kent, 371 ; 7 How. 846.; 10 id. 257. Admiralty 
 suits touching property in ships are either peti- 
 tory, in which the mere title to the property is 
 litigated, or possessory, to restore the possession 
 to the party entitled thereto. 
 
 The American courts of admiralty exercised 
 unquestioned jurisdiction in petitory as well 
 as possessory actions ; but in England the 
 courts of law, some time after the restoration 
 in 1660, claimed exclusive cognizance of mere 
 questions of title, until the statute of 3 & 4 
 Vict. c. 65. By that statute the court of ad- 
 miralty was authorized to decide all questions 
 as to the title to or ownership of any ship or 
 vessel, or the proceeds thereof remaining in 
 the registry in any cause of possession, sal- 
 vage, damage, wages, or bottomry, instituted 
 in such court after the passing of that act ; 
 Ware, 232 ; 18 How. 267 ; 2 Curt. C. C. 
 426. 
 
PETTY AVERAGE 
 
 412 
 
 PHYSICIAN 
 
 In Scotch Law. Actions in which dam- 
 ages are sought. 
 
 This class embraces such actions as assump- 
 sit, debt, covenant, and detinue, at common 
 law. Sea Patterson, Comp. 1058, n. 
 
 PETTY AVERAGE (called, also, cus- 
 tomary average) . Several petty charges which 
 are borne partly by the ship and parfly by the 
 cargo, such as the expense of tonnage, bea- 
 conage, etc. Abbott, Shipp. 7th ed. 404 ; 
 
 2 Pars. Mar. Law, 312 ; 1 Bell, Com. 567 ; 2 
 Magens, 277 ; Gourlie, Gen. Av. 
 
 FETT7 BAG OFFICE. In English 
 Law. An office in the court of chancery, 
 appropriated for suits against attorneys and 
 officers of the court, and for process and pro- 
 ceedings by extent on statutes, recognizances 
 ad quod damnum, and the like. Termes de 
 la Ley. 
 
 PETTY CONSTABLE. The ordinary 
 constable, as distinguished from the high eon- 
 stable of the hundred. 1 Bla. Com. 355 ; 
 Bacon, Law Tr. 181, Office of Constable ; 
 Willcock, Cons. c. 1, § 1. For duties of con- 
 stable in America, see New England Sher- 
 iff ; Crocker, Sheriffs ; Marsh, Const. 
 Guide. 
 
 PETTIFOGGER. One who pretends to 
 be a lawyer, but possesses neither knowledge 
 of the law nor conscience. 
 
 An unprincipled practitioner of law, whose 
 business is confined to petty cases. 
 
 PEW. A seat in a church, separated from 
 all others, with a convenient place to stand 
 therein. 
 
 It is an incorporeal interest in the real pro- 
 perty. And although a man has the exclusive 
 right to it, yet it seems he cannot maintain 
 trespass against a person entering it ; 1 Term, 
 430 ; but case is the proper remedv ; 3 B. & 
 Aid. 361 ; 8 B. & C. 294. In 3 Paige, Ch. 
 296, it was held that the owner of a pew can, 
 if disturbed in its use, maintain trespass, case, 
 or ejectment, according to the circumstances. 
 
 The right to pews is limited and usufruc- 
 tuary, and does not interfere with the right of 
 the parish or congregation to pull down and 
 rebuild the church; 4 'Ohio, 541; 5 Cow. 
 496 ; 17 Mass. 435 ; 109 id. 21 ; 1 Pick. 102 ; 
 
 3 id. 344 ; 6 S. & R. 508 ; 9 Wheat. 445 ; 9 
 ^ Ora. 52 ; 6 Johns. 41 ; 4 Johns. Ch. 596 ; 6 
 ' Term, 396 ; 3 How. 74 ; indemnifying those 
 
 whose pews are destroyed ; 17 Mass. 435. See 
 Powell, Mortg. Index ; 2 Bla. Com. 429 ; 1 
 Chitty, Pr. 208, 210; 1 Powell, Mortg. 17, 
 n ; 19 Am. L. Reg. n. s. 1 ; 9 Am. Dec. 
 161; 24 id. 230; Baum. 
 
 A pew may be used only for divine service 
 and for meetings of the congregation held for 
 temporal purposes. The pew-owner must 
 preserve order while enjoying his pew; 34 
 N. Y. 149. The owner of a pew does not 
 own the soil under it, nor the space above it • 
 17 Mass. 435. ' 
 
 In Connecticut, Maine, and Louisiana, pews 
 are considered real estate. In Massachusetts 
 
 and New Hampshire, they are personal vk. 
 perty ; Mass. Gen. Stat. c. 30, § 38 ; 1 sA,, 
 bt. 145. The precise nature of^such property 
 does not appear to be well settled in N™ 
 York; 15 Wend. 218; 16 id. 28; 5 Cow 
 494. See 10 Mass. 323 ; 17 id. 438 ; S3 La" 
 An. 9; 7 Pick. 138; 4 N. H. 180; 4 Ohio 
 515; 4 H. & M'H. 279; Best, Tmin- 
 Crabb, R. P. §§ 481-497; Washb. Easem' 
 PHOTOGRAPH. See Peess Copt. ' 
 PH YSICIAN. A person who has received 
 the degree of doctor of medicine from an in- 
 corporated institution. 
 
 One lawfully engaged in the practice of 
 medicine. 
 
 As used in a policy of life insurance, the 
 term "family physician" has been held to 
 mean the physician who usually attends, and 
 is consulted by the members of a family, in 
 the capacity of a physician, whether or not 
 he usually attended on or was consulted by 
 the insured himself; 17 Minn. 497; s. o. 10 
 Am. Rep. 166. 
 
 Although the physician is civilly and crim. 
 inally responsible for his conduct while dis. 
 charging the duties of his profession, he is in 
 no sense a warrantor or insurer of a favorable 
 result, without an express contract to that ef- 
 fect ; Elwell, Malp. 20 ; 7 0. & P. 81. 
 
 Every person who offers his services to the 
 public generally impliedly contracts with the 
 employer that he is in possession of the ne- 
 cessary ordinary skill and experience which 
 are possessed by those who practise or profess 
 to understand the art or science, and which 
 are generally regarded by those most conver- 
 sant with the profession as necessary to 
 qualify one to engage in such business suc- 
 cessfully. This ordinary skill may differ ac- 
 cording to locality and the means of informa- 
 tion ; Elwell, Malp. 22-24, 201; Story, Bailm. 
 433; 3 C. & P. 629; 8 id. 475; 34 Iowa, 
 286 ; s. c. 11 Am. Rep. 141 n.; 34 Iowa, 800;, 
 82 111. 379 ; 8. c. 25 Am. Rep. 328. 
 
 The physician's responsibility is the same 
 when he is negligent as when he lacks ordi- 
 nary skill, although the measure of indemnity 
 and punishment may be diil'erent; Elwell, 
 Malp. 27 ; Archb. Cr. PI. 411 ; 2Ld. Kaym. 
 1583; 3 Maule & S. 14, 16; 6 id. 198; 1 
 Lew. C. C. 169 ; 2 Stark. Ev. 526 ; Broom, 
 Leg. Max. 168, 169; 4 Denio, 464; 19 
 Wend. 345, 346. ,\ 
 
 In England, at common law, a physician 
 could not maintain an action for his fees for any 
 thing done as physician either while attending 
 to or prescribing for a patient ; but a distinction 
 was taken when he acted as a surgeon or in 
 any other capacity than that of physician^ and 
 in such cases an action for fees would be sus- 
 tained; 1 C. &M. 227, 370; 3G.&D.198; 
 4 Term, 317 ; 8 Q. B. 928. But now by the 
 act of 21 & 22 Vict. c. 90, aph;^sician whois 
 registered under the act may bring an action 
 for his fees, if not precluded by any Waw 
 of the college of physicians ; 2 H. & C. 92. 
 In this country, the various states have 
 statutory enactments regulating the collection 
 
PHYSICIAN 
 
 413 
 
 PIGNUS 
 
 of fees and the practice of medicine. In 
 Georgia, a physician cannot recover for his 
 services unless he shovrs that he is licensed as 
 required by the act of 1839, or unless he is 
 ■within the proviso in favor of physicians who 
 were in practice before its passage ; 8 Ga. 74. 
 In New York, prior to the act repealing all 
 former acts prohibiting unlicensed physicians 
 from recovering a compensation for their ser- 
 vices (Stat, of 1844, p. -406), an unlicensed 
 physician could not maintain an action for 
 medical attendance and medicines ; 4 Denio, 
 60. Under the Maine statute of 1838, c. 53, 
 a person who is not allowed by law to collect 
 his dues for medical or surgical services as a 
 regular practitioner cannot recover compensa- 
 tion for such services unless previous to their 
 performance he obtained a certificate of good 
 moral character in manner prescribed by 
 that statute, nor can he recover payment for 
 such services under the provision of the Re- 
 vised Statute, c. 22, by having obtained a 
 medical degree, in manner prescribed by that 
 statute, after the performance of the service, 
 though prior to the suit ; 25 Me. 104. 
 
 In Alabama and "Missouri, a non-licensed 
 physician cannot recover for professional ser- 
 vices; 21 Ala. N. s. 680; 15 Mo. 407. 
 When A, the plantation physician of a plan- 
 ter, found a surgical operation necessary on 
 one of the negroes, and requested the over- 
 seer to send for B, another physician, who 
 came and performed the operation without 
 any assistance from A, it was held that B 
 could not maintain an action against A to 
 recover for his service; 1 Strobh. 171. In 
 Vermont, the employment of a physician, and 
 a promise to pay him for his services, made 
 on the Sabbath-day, is not prohibited by sta- 
 tute; 14 Vt. 332. In Massachusetts, an un- 
 licensed physician or surgeon may maintain 
 an action for professional service ; 1 Mete. 
 Mass. 154. See 2 Pars. Contr. *56 note. 
 
 Where the wife of the defendant, being af- 
 flicted with a dangerous disease, was carried 
 by him to a distance from his residence and 
 left under the care of the plaintiff as a sur- 
 geon, and after the lapse of some weeks the 
 plaintiff performed an operation on her for 
 the cure of the disease, soon after which she 
 died, it was held, in an action by the plaintiff 
 against the defendant to recover compensa- 
 tion for his services, that the performance of 
 the operation was within the scope of the 
 plaintiff's authority, if, in his judgment, it 
 was necessary or expedient, and that it was 
 not incumbent on him to prove that it was 
 necessary or proper under the circumstances, 
 or that before he performed it he gave notice 
 to the defendant, or that it would have been 
 dangerous to the wife to wait until notice 
 could be given to the defendant; 19 Pick. 
 333. Where one who has received personal 
 injury through the negligence of another uses 
 reasonable and ordinary care in the selection 
 of a physician, the damages awarded him will 
 not be reduced because the more skilful 
 medical aid was not secured ; 32 Iowa, 324 ; 
 
 8. c. 7 Am. Hep. 200. In assumpsit by a 
 physician for his services, the defendant can- 
 not prove the professional character of the 
 plaintiff; 3 Hawks, 105. Physicians can re- 
 cover for the services of their students in at- 
 tendance upon their patients ; 4 Wend. 200. 
 Partners in the practice of medicine are with- 
 in the law merchant, which excludes the jus 
 accrescendi between traders; 9 Cow. 631. 
 An agreement between pliysicians whereby 
 for a money consideration one promises to use 
 his influence with his patrons to obtain their 
 patronage for the other is lawful and not con- 
 trary to public policy; 39 Conn. 326; 8. c. 
 12 Am. Kep. 390. If a pliysician carries 
 contagious disease into a family, on a suit for 
 services this may be shown to reduce such 
 claim; 12 B. Monr. 465. See Confiden- 
 tial Communications. 
 
 FICKER7. In Scotch Law. Stealing 
 of trifles, punishable arbitrarily. Bell, Diet.; 
 Tait, Inst. Theft. 
 
 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. 
 
 FIGITORATIO (Lat. from pignorare, to 
 pledge). In Civil Lavr. The obligation of 
 a pledge. L. 9. D. de pignor. Sealing up 
 (ubsignatio). A shutting up of an animal 
 caught in one's field and keeping it till the 
 expenses and damage have been paid by its 
 master. New Decis. 1. 34. 13. 
 
 PIGNORATIVE CONTRACT. In 
 Civil La'w. A contract by which the owner 
 of an estate engages it to another for a sum 
 of money and grants to him and his succes- 
 sors the right to enjoy it until he shall be re- 
 imbursed, voluntarily, that sum of money. 
 Pothier, Obi. 
 
 PIGNORIS CAPTIO (Lat.). In Roman 
 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 tifxes, duties, rents, etc., 
 and is comparable in some respects to dis- 
 tresses at common law. The proceeding took 
 place in the presence of a prsetor. 
 
 PIGNUS (Lat.). In Civil Law. Pledge, 
 or pawn. The contract of pledge. The right 
 in the thing pledged. 
 
 " It Is derived," says Galus, "from pugnwm, 
 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 
 Koman jurists when they attempted etymological 
 explanations of words. The elements of pignus 
 {pig) are contained in the word pan{g)-o and 
 its cognate forms. See Smith, Diet. Gv. & Bom. 
 Antiq. 
 
 Though pledge is distinguished from mort- 
 gage {kypotheca^, as being something deliv- 
 ered in hand, while mortgage is good without 
 possession, yet a pledge (pignus} may also be 
 
PILLAGE 
 
 414 
 
 PIRACY 
 
 good without possession. Domat, Civ. Law, 
 b. iii. tit. 1,85; Calvinus, Lex. Pignus is 
 properly applied to movables, hypotheca to 
 immovables ; but the distinction is not always 
 preserved. Id. 
 
 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 commanding or 
 chief officer at the place where the pillage is 
 committed. The property thus violently taken 
 belongs, in general, to the commpn soldiers. 
 See IJalIoz, Diet. Propri4ii, art. 3, § 5 ; 
 Wolff, § 1201 ; Booty; Prize. 
 
 FILLORV. A wooden machine, in which 
 the neck of the culprit is inserted. 
 
 This punishment has in most of the states 
 been superseded by the adoption of the peni- 
 tentiary system. See 1 Chitty, 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 Barrington, Stat. 48, note. 
 
 PILOT. An officer serving on board of a 
 ship during the course of a voyage, and hav- 
 ing charge of the helm and of the ship's route. 
 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. 
 
 Pilots of the second description are esta^ 
 blished by legislative enactments at the prin- 
 cipal seaports in this country, and have rights, 
 and are bound to perform duties, agreeably to 
 the provisions of the several laws establishing 
 them. 
 
 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 ex- 
 ercise their functions ; Abbott, Shipp. 180 ; 1 
 Johns. 305 ; 4 Dall. 205 ; 5 B. & P. 82 ; 5 
 Bob. Adm. 308 ; 6 id. 316 ; Laws of Oleron, 
 art. 23 ; MoUoy, b. 2, c. 9, ss. 3, 7 ; Weskett, 
 Ins. 395; Act of Con|r. of August 7, 1789, 
 s. 4 ; Merlin, Rfepert.; Pardessus, n. 637. 
 
 The master of a vessel may decline the ser- 
 vices of a pilot, but in that event he must pay 
 the legal fees ; 1 Cliff. 492. A pilot who first 
 offers his services, if rejected, is entitled to his 
 fee ; 2 Am. Law Rev. 458 ; Desty, Shipp. § 
 
 PILOTAGE, The compensation given 
 to a pilot for conducting a vessel in or out of 
 port. Pothier, Des Avaries, n. 147. 
 
 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 per- 
 son lawfully authorized to make it ; 1 Mas. 
 508 ; and the admiralty court has jurisdiction 
 when services have been performed at sea ; 
 Id. ; 10 Wheat. 428 ; 6 Pet, 682 ; 10 id. 108 ; 
 10 Fed. Rep. 135 ; 3 Morr. Transcr. 438. 
 
 And see 1 Pet. Adm. Detf. 227. The stat. 
 utes of the several states regulating the sub. 
 ject of pilotage are, in view of the numerous 
 acts of congress recognizing and adoptins 
 them, to be regarded as constitutionally made 
 until, congress by its own acts superseded 
 them; 12 How. 312; 13 Wall. 236. 
 
 PIN-MONEY. Money allowed by a man 
 to his wife to spend for her own personal 
 comforts. 
 
 It has been conjectured that the term ph. 
 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 pine ; Barrington, Stat. 181. 
 
 When pin-money is given to but not spent 
 by the wife, on the husband's death it belongs 
 to his estate; 4 Viner, Abr. 133, Baron It 
 Feme (E a. 8) ; 2 Eq. Cas. Abr. 156 ; 2 P 
 Will. 341 ; 3 id. 353 ; 1 Ves. 267 ; 2 id 
 190 ; 1 Madd. 489, 490. 
 
 In England it was once adjudged that a 
 promise to a wife, by the purchaser, that if 
 she would not hinder the bargain foi" the sale 
 of the husband's lands he would give herten 
 pounds, was valid, and might be enforced by 
 an action of assumpsit instituted by husband 
 and wife; RoUe, Abr. 21, 22. 
 
 In the French law, the term 4pingles,pDa, 
 is used to designate the present which is some- 
 times given by the purchaser of an immovable 
 to the wjfe or daught«rs 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. 
 Epingles. 
 
 PINT. A liquid measure, containing half 
 a quart or the eighth part of a gallon. ' 
 
 PIOUS USES. See Charitable Uses I 
 3 Sandf. 377. 
 
 PIPE. In English Law. The name of a 
 roll in the exchequer, otherwise called the 
 Great Roll. A measure, containing two hogs- 
 heads : one hundred and twenty-six gallons is 
 also called a pipe. 
 
 PIRACY. In Criminal Law. A rob- 
 bery or forcible depredation on the high seas, 
 without lawful authority, done animofurandi, 
 in the spirit and intention of universal hostil. 
 ity. 3 Wheat. 610 ; 5 id. 153, 163 ; 3 Wash, 
 C. C. 209. This is the definition of this of- 
 fence by the law of nations ; 1 Kent, 188. 
 
 Congress may define and punish piracits 
 and felonies on the high seas, and offences 
 against the law of nations. Const. U. S. art, 
 1, s. 7, n. 10 ; 8 Wheat. 336 ; 5 id. 76, 153, 
 184. In pursuance of the authority thus 
 given by the constitution, it was declared by 
 the act of congress of AprilSO, 1790, s. 8, 1 
 Story, Laws, 84, that murderer robbery com- 
 mitted on the high seas, or in any river, haven, 
 or bay out of the jurisdiction of any particu- 
 lar 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 antt 
 felony, and punishable with death. It wM 
 
PIRATE 
 
 415 
 
 PLACITA COMMUNIA 
 
 further declared that if any captain or mariner 
 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 forcibly 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 ad- 
 judged a pirate and felon, and be punishable 
 with death. Accessories before the fact are 
 punishable as the principal ; those after the 
 fact, with fine and imprisonment. 
 
 By a subsequent act, passed March 3, 1819, 
 3 Story, Laws, 1739, made perpetual by the 
 act of May 15, 1820, 1 Story, Laws, 1798, 
 concress 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, sufier death. 
 
 And again, by the act of May 15, 1820, s. 
 3, 1 Story, Laws, 1798, congress declared 
 that if any person should upon the high seas, 
 or in any open roadstead, or iu any harbor, 
 haven, basin, or bay, or in any river where 
 the tide 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 sufl'er 
 death. And%' any person engaged in any 
 piratical cruise or enterprise, or being of the 
 crew or ship's company of any piratical ship 
 or vessel, should land Irom such snip or vessel, 
 and, on shore, should commit robbery, such 
 person should be adjudged a pirate, and suffer 
 death. Provided tliat 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 of- 
 fence, in a state court. The fourth and fifth sec- 
 tions of the last-mentioned act declare persons 
 engaged in the slave-trade, or in forcibly de- 
 taining a free negro or mulatto and carrying 
 him in any ship or vessel into slavery, piracy, 
 punishable with death ; R. S. § 5368-5382. 
 See 1 Kent, 183 ; Beausaant, Code Maritime, 
 t. 1, p. 244; Dalloz, Diet. Supp. ; Dougl. 
 613; Park, Ins. Index; Bacon, Abr. ; 16 
 Viner, Abr. 346 ; Ayl. Pand. 42 ; 11 AVheat. 
 39 ; 1 Gall. 247, 524 ; 3 Wash. C. C. 209, 
 240; 1 Pet. C. C. 118, 121. 
 
 In Torts. By piracy is understood the 
 plagiarism of a book, engi-aving, or other 
 work for which a copyright has been taken 
 out. 
 
 When a piracy has been made of such a 
 work, an injunction will be granted ; 4 Ves. 
 681 ; 5 id. 709 ; 12 id. 270. See Copy- 
 
 KIGHT ; MkMORIZATION. 
 
 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 loading, and some- 
 times bereaving them of life and sinking 
 
 their ships. Ridley, View, pt. 2, c. 1, s. 3. 
 One guilty of the crime of piracy. Merlin, 
 Rupert. See, for the etymology of this word, 
 Bacon, Abr. Piracy. 
 
 PIRATICALLY. In Pleading. This 
 is a technical word, essential to charge the 
 crime of piracy in an indictment, which can- 
 not be supplied by another word or any cir- 
 cumlocution ; Hawk. PI. Cr. b. 1, c. 37, s. 
 15; Co. 3d Inst. 112; 1 Chitty, Cr. Law, 
 *244. 
 
 PISCARY. The right of fishing in the 
 waters of another. Bacon, Abr. ; 5 Comyns, 
 Dig. 366. See Fisheky. 
 
 PISTAREEN. A small Spanish coin. It 
 is not made current by the laws of the United 
 States. 10 Pet. 618. 
 
 PIT. 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. 
 
 PIT AND GALLOWS (Law. Lat. fossa 
 etfurca'). In Scotch Law. A privilege of 
 inflicting capital punishment for theft, given 
 by king Malcolm, by which a woman could 
 be drowned in a pit {fossa) or a man hanged 
 on a gallows (furca). Bell, Diet.; Stair, 
 Inst. 277, § 62. 
 
 PLACE. See Venuk. 
 
 PLACE OF BUSINESS. The place 
 where a man usually transacts his affairs or 
 business. 
 
 When a man keeps a store, shop, counting- 
 room, or ofl[ice, independently and distinctly 
 from all other persons, that is deemed his 
 place of business ; and when he usually tran- 
 acts his business at the counting-house, office, 
 and the like, occupied and used by another, 
 that will also be considered his place of busi- 
 ness, 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, an exchange-room, a 
 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 ; 1 Pet. 582 ; 2 id. 
 121; 10 Johns. 501; 11 id. 231; 16 Pick. 
 392. _ 
 
 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 pne of the part- 
 ners ; Story, Pr. Notes, § 312; Dan. Neg. 
 Instr. 503. 
 
 PLACITA COMMUNIA (Lat.). Com- 
 mon pleas. All civil actions between subject 
 and subject. 3 Bla. Com. 38, 40*; Cowel, 
 Plea. See Placitum. 
 
PLACITA CORONA 
 
 416 
 
 PLAT 
 
 PLACITA CORONA (Lat.). Pleas of 
 the crown. All trials for crimes and misde- 
 meanors, wherein the king is plaintiff, on be- 
 half of the people. 3 Bla. Com. 40*; Cowel, 
 Plea. 
 
 PLACITA JURIS (Lat.). Arbitrary 
 rules of law. Bacon, Law Tr. 73 ; Bacon, 
 Max. Reg. 12. 
 
 PLACITtTM (Lat. from placere). In 
 Civil Lavr. Any agreement or bargain, A 
 law ; a constitution or rescript of the emper- 
 or ; the decision of a judge or award of arbi- 
 trators. Vicat, Voc. Jur.; Calvinus, Lex.; 
 Dupin, Notions sur le Droit. 
 
 In Old English Laiw (Ger. plats, Lat. 
 plateis, i.e. fields or streets). An assembly 
 of all degrees of men, where the king pre- 
 sided and they consulted about the great af- 
 fairs of the kingdom : first held, as the name 
 would showj in the fields or street. Cowel. 
 
 So on the continent. Hinc. de Ordine 
 Palatii, c. 29 ; Bertinian, Annals of France 
 in the year 767 : Const. Car. Mag. cap. ix.; 
 Hinc. Epist. 197, 227 ; Laws of the Longo- 
 bards, passim. 
 
 A lord's court. Cowel. 
 
 An ordinary court. Placita is the style of 
 the English courts at the beginning of the re- 
 cord at nisi prius ; in this sense, placita are 
 divided into pleas of the crown and common 
 pleas, whiclj see. Cowel. 
 
 A trial or suit in court. Cowel ; Jacohs. 
 
 A fine. Black Book of Exchequer, lib. 2, 
 tit. 13; 1 Hen. L cc. 12, 13. 
 
 A plea. This word is nomen generalissi- 
 mum, and refers to all the pleas in the case. 
 1 Saund. 388, n. 6 ; Skinn. 5.'54; Carth. 334 ; 
 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, generally, num- 
 bered. In citing, it is abbreviated as follows : 
 Viner, Abr. Abatement, pi. 3. 
 
 Placitum nominatum is the day appointed 
 for a criminal to appear and plead. 
 
 Placitum fractum. A day past or lost to 
 the defendant. 1 Hen. I. c. 59. 
 
 PLAGIARISM. ''The act of appropri- 
 ating the ideas and language of another and 
 passrag them for one's own. 
 
 When this amounts to piracy, the party 
 who has been guilty of it will be enjoined 
 when the original author has a copyright. 
 See Copyright ; Piracy ; Quotation ; 
 Pardessus, Dr. Com. n. 169. 
 
 PLAGIARIUS (Lat.). In CivU Law. 
 He who fraudulently concealed a freeman or 
 slave who belonged to another. 
 
 The oflfence Itself was called plagium. 
 
 It differed from larceny or theft in this, that 
 larceny always implies that the guilty party in- 
 tended to make a profit, whereas the plagiarim 
 did not intend to make any proflc. Dig. 48. 15. 
 6 ; Code, 9. 20. 9, 15. 
 
 FLAGIUM (Lat.). Man-stealing; kid- 
 napping. This ofience is the crimen plagii 
 of the Romans. Alison, Crim. Law, 280, 
 281. 
 
 PLAINT. In English Law. The ex. 
 hibiting of any action, real or personal in 
 writing. The party making his plaint it 
 called the plaintiff. 
 
 PLAINTIFF (Fr. pleyntife). He ivho 
 complains. He who, in a personal action 
 seeks a remedy for an injury to his rights. 3 
 Bla. Com. 26; Hamm. Part. ; 1 Chitty, PI.- 
 Chitty, Pr. ; 1 Comyns, Dig. 36, 205,' 308.' 
 
 The legal plaintifj' is he in whom the legal 
 title or cause of action is vested. 
 
 The equitable plaintiff is he who, notiav- 
 ing 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 bring- 
 ing suits when the cause of action is not as. 
 signable at law but is so in equity. See Bon- 
 vier, Inst. Index, Parties. 
 
 The word plaintiff occurring alone means 
 the plaintiff on record, not the real or equi- 
 table plaintiff. After once naming the plain. 
 tiff in pleading, he may be simply called the 
 plaintiff. 1 Chitty, PI. 266; 9 Paige, Ch. 
 226 ; 4 Hill, N. Y. 468 ; 5 id. 623, 648 ; 7 
 Term, 50. 
 
 PLAINTIFF IN ERROR. A partj 
 who sues out a writ of error ; end this, whe. 
 ther in the court below he was plaintiff or de. 
 fendant. 
 
 FLAN. The delineation or design of i 
 city, a house or houses, a garden, a vessel, 
 etc., traced on paper or other substance, re- 
 presenting the position and the relative pro- 
 portions of the different parts. 
 
 A plan referred to in a deed describing 
 land as bounded by a way laid down upon a 
 plan may be used as evidence in fixing the 
 locality of such way ; 16 Gray, 374 ; and if a 
 plan is referred to in the deed for description, 
 and in it are laid down courses, distances, and 
 other particulars, it is the same as if they 
 were recited in the deed itself; 3 Washb. K. 
 P. 430. 
 
 When houses are built by one person agree- 
 ably to a plan, and one of them, with win- 
 dows and doors in it, is sold to a person, the 
 owner of the others cannot shut up those 
 windows, nor has his arantee any greater 
 right; 1 Price, 27 ; 2 Ry. & M. 24; 1 Lev. 
 122; 2 Saund. 114, n. 4; 1 Mood. & M. 396; 
 9 Bingh. 305; 1 Leigh, N. P. 569. See 12 
 Mass. 159; Hamm. Nisi P. 202; 2 HiU. B. 
 P. c. 12, n. 6-12 ; Comyns, Dig. Actum on 
 the Case for a Nuisance (A) ; Ancient 
 Lights ; Windows. 
 
 PLANTATIONS. Colonies ; dependen. 
 cies. 1 Bla. Com. 107. 
 
 In England, this word, as it is used i? ?'*Jf 
 Car. II. c. 18, is never applied to any of ™ Orn- 
 ish dominions in Europe, but only to f\<^^ 
 nies in the West Indies and America ; 1 ms""' 
 Ins. b. 1, c. 3, § 2, p. 69. 
 
 PLAT. A map of a piece of lan^. <"■ 
 which are marked the courses and distances 
 
PLEA 
 
 417 
 
 PLEA 
 
 of the different lines, and the quantity of 
 land it contains. 
 
 Such a plat may be given in evidence in 
 ascertaining the position of the land and 
 what is included, and may serve to settle the 
 iitrure of a survey and correct mistakes ; 5 
 t! B. Monr. 160. See 17 Mass. 211 ; 5 Me. 
 ^19 ; 7 id. 61 ; 4 Wheat. 444 ; 14 Mass. 149. 
 
 FLEA. In Equity. A special answer 
 showing or relying upon one or more things 
 (Ls a cause why the suit should be either dis- 
 missed, or delayed, or barred. Mitf. Eq. PI. 
 ,I.'r. cd. 219; Coop. Eq. PI. 223; Story, 
 Eq. PI. § 649. 
 
 The modes of making defence to a bill in 
 •equity are said to be by demurrer, which de- 
 mands of the court whether from the matter 
 apparent from the bill the defendant shall 
 answer at all ; hy plea, which, resting on the 
 foundation of new matter offered, demands 
 whether the defendant shall answer further ; 
 by answer, which responds generally to the 
 charges of the bill ; by disclaimer, which de- 
 nies any interest in the matters in question ; 
 Mitf. Eq. PI. Jer. ed. 13; 2 Stor. 59; 
 Story, Eq. PI. § 437. Pleas are said to be 
 fure which rely upon foreign matter to dis- 
 charge or stay the suit, and anomalous or ne- 
 gative which consist mainly of denials of the 
 substantial matters set forth in the bill ; 
 Story, Eq. PI. §§ 651, 667 ; 2 Dan. Ch. Pr. 
 97, 110 ; Beames, Eq. PI. 123 ; Adams, Eq. 
 236. 
 
 Pleas to the jurisdiction assert that the 
 court before which the cause is brought is not 
 the proper court to take cognizance of the 
 matter. 
 
 Pleas to the person may be to the person 
 of tlie plaintiff or defendant. Those of the 
 former class are mainly outlawry, excommu- 
 nication, popish recusant convict, which are 
 never pleaded in America and very rarely 
 DOW in England ; attainder, which is now 
 seldom pleaded; 2 Atk. 399; alienage, 
 which is not a disability unless the matter re- 
 spect lands, when the alien may not hold 
 them, or he be an alien enemy not under 
 license; 2 V. & B. 323; infancy, coverture, 
 and idiocy, which are pleadable as at law 
 (see Abatement) ; bankruptcy and insol- 
 vency, in which case all the facts necessary 
 to establish the plaintiff as a legally declared 
 bankrupt must be set forth ; 3 Mer. 667, 
 though not necessarily as of the defendant's 
 own knowledge ; Younge, 331 ; 4 Beav. 
 554; 1 Y. & C. 39 ; want of character in 
 which he sues, as that he is not an administra- 
 tor; 2 Dick. 610; 1 Cox, Ch. 198; is not 
 heir; 2 V. & B. 159 ; 2 Bro. C. C. 143 ; 3 id. 
 489; is not a creditor; 2 S. & S. 274; is 
 not a partner ; 6 Madd. 61 ; as he pretends 
 to be ; that the plaintiff named is a fictitious 
 person, or was dead at the commencement of 
 the suit ; Story, Eq. PI. § 727. Those to the 
 person of the defendant may show that the 
 defendant is not the person he is alleged to 
 be, or does not sustain the character given by 
 the bill; 6 Madd. 61 ; Rep. Finch, 334; or 
 Vol. II.— 27 
 
 that he is bankrupt, to require the assignees 
 to be joined; Story, Eq. PI. § 732. These 
 pleas to the person are pleas in abatement, or, 
 at least, in the nature of pleas in abatement. 
 
 Pleas to the bill or the frame of the bill 
 object to the suit as framed, or contend that it 
 is unnecessary. These may be — the pendency 
 of another suit, which is analogous to the 
 same plea at law and is governed in most re- 
 spects by the same principles ; Story, Eq. 
 PI. § 736 ; 2 My. & C. 602 ; 1 Phill. 82 ; 1 
 Ves. 544 ; 4 id. 357 ; 1 8. & S. 491 ; Mitf. 
 Eq. PI. Jer. ed. 248 ; see Lis Pendens ; 
 and the other suit must be in equity, and not 
 at law ; Beames, Eq. PI. 146-148 ; want of 
 proper parties, which goes to both discovery 
 and relief, where both are prayed for ; Story, 
 Eq. PI. § 745 ; see 3 Y. & C. 447 ; but not to 
 a bill of discovery merely ; 2 Paige, Ch. 
 280 ; 3 id. 222 ; 3 Cra. 220 ; a multiplicity 
 of suits; 1 P. Wms. 428 ; 2 Mas. 190 ; mul- 
 tifariousness, which should be taken by way 
 of demurrer, when the joining or confession 
 of the distinct matters appears from the face 
 of the bill, as it usually does ; Story, Ex. PL 
 §271. 
 
 Pleas in bar rely upon a bar created by 
 statute ; as, the Statute of Limitations ; 1 S. 
 & S. 4 ; 2 Sim. 45 ; 3 Sumn. 152 ; which is 
 a good plea in equity as well as at law, and 
 with similar exceptions ; Cooper, Eq. PI. 
 253 ; see Limitations, Statute of ; the 
 Statute of Frauds, where its provisions ap- 
 ply ; 1 Johns. Ch. 425 ; 2 id. 275 ; 4 Ves. 
 24, 720 ; 2 Bro. C. C. 559 ; -or some other 
 public or private statute ; 2 . Story, Eq. Jur. 
 § 768 ; matter of record or as of record in 
 some court, as, a common recovery; 1 P. 
 Wms. 754 ; 2 Freem. 180 ; 1 Vern. 13 ; a 
 judgment at law ; 1 Keen, 456 ; 2 My. & C. 
 Ch. 602; Story, Eq. PI. § 781, n.; the sen- 
 tence or judgment of a foreign court or a 
 court not of record; 12 CI. & F. 368 ; 14 
 Sim. 265; 3 Hare, 100; 1 Y. & C. 464; 
 especially where its jurisdiction is of a pecu- 
 liar or exclusive nature ; 1 2 Ves. 307 ; AmbL 
 756; 2 How. 619; with limitations in case of 
 fraud ; 1 Ves. 284 ; Story, Eq. PI. § 788 ; or 
 a decree of the same or another court of 
 equity ; Cas. Talb. 217 ; 7 Johns. Ch. 1 ; -2 
 S. & S. 464 ; 2 Y. & C. 43 ; matters purely in 
 pais, in which case the pleas may go to di.s- 
 coverj', relief, or either, both, or a part of 
 either, of which the principal (though not 
 the only) pleas are : account, stated or set- 
 tled ; 2 Atk. 1 ; 13 Price, 767 ; 7 Paige, Ch. 
 573 ; 1 My. & K. 231 ; accord and satisfac- 
 tion ; 1 Hare, 564 ; award; 2 V. & B. 764 ; 
 purchase for valuable consideration ; 2 Sumn. 
 507 ; 2 Y. & C. 457 ; release ; 3 P. Wms. 
 315 ; lapse of time, analogous to the Statute 
 of Limitations ; 1 Ves. 264; 10 id. 466; 1 
 Y. & C. 432, 453 r 2 J. & W. 1 ; 1 Hare, 
 594 ; 1 Euss. & M. 453 ; 2 Y. & C. 58 ; 1 
 Johns. Ch. 46 ; 10 Wheat. 152 ; 1 Sch. & 
 L. 721; 6 Madd. 61; 3 Paige, Ch. 273; 5 
 id. 26 ; 7 id. 62 ; title in the defendant ; 
 Story, Eq. PI. § 812. 
 
PLEA 
 
 418 
 
 PLEA 
 
 The same pleas may be made to bills seek- 
 ing discovery as to those seeking relief ; but 
 matter ■which constitutes a good plea to a bill 
 for relief does not necessarily to a bill for dis- 
 covery merely. See Story, Eq. PI. ? 816 ; 
 Mitf. Eq. PI. Jer. ed. 281, 282. The sa,me 
 kind'of pleas may be made to bills not origi- 
 nal as to originsd bills, in many cases, accord- 
 ing to their respective natures. Peculiar de- 
 fences to each may, however, be sometimes 
 urged by plea ; Story, Eq. PI. § 826 ; Mitf. 
 Eq. PI. Jer. ed. 288. 
 
 Effect of a plea. A plea may extend to 
 the whole or a part, and if to a part only 
 must express which part, and an answer over- 
 rules a plea if the two conflict ; 3 Y. & C. 
 683 ; 3 Cra. 220. The plea may be accom- 
 panied by an answer fortifying it with a pro- 
 test against waiver of the plea thereby ; Story, 
 Eq. PI. § 695. A plea- or argument may be 
 allowed, in which case it is a full bar to so 
 much of the bill as it covers, if true; Mitford, 
 Eq. PI. Jer. ed. 301 ; or the benefit of it may 
 be saved to the hearing, which decides it 
 valid so far as then appears, but allows matter 
 to be disclosed in evidence to invalidate it, or 
 it may be ordered to stand for an answer, 
 which decides that it may be a part of a de- 
 fence ; 4 Paige, Ch. 124 ; but is not a full de- 
 fence, that the matter has been improperly 
 offered as a plea, or is not sufficiently fortified 
 by answer, so that the truth is apparent ; 3 
 Paige, Ch. 459. See, generally. Story, Eq. 
 PL; Mitf. Eq. PI. by Jeremy; Beames, Eq. 
 PL; Cooper, Eq. PL; Blake, Ch. Pr. ; Dan. 
 Ch. Pr.; Barbour, Ch. Pr. ; Langd. Eq. PL 
 
 AtLa'w. The defendant's answer by mat- 
 ter of fact to the plaintiff's declaration, as 
 distinguished from a demurrer, which is an 
 answer by matter of law. 
 
 It includes as well the denial of the truth of 
 the allegations on which the plaintiff relies, as 
 the statement of facte on which the defendant 
 relies. In an ancient use it denoted action, and 
 is still used sometimes in that sense : as, " sum- 
 moned to answer in a plea of trespass." Steph. 
 PI. 88, 39, n.; Warren, Law Stud. 273, note w ; 
 Oliver, Free. 97. In a popular, and not legal, 
 sense, the word is used to denote a forensic ar- 
 gument. It was strictly applicable in a kindred 
 sense when the pleadings were conducted orally 
 by the counsel. Steph. PI. App. n. 1. 
 
 Pleas are either dilatory, which tend to de- 
 feat the particular action to which they apply 
 on account of its being brought before the 
 wrong court, by or agamst the wrong person, 
 or in an improper form ; or peremptory, which 
 impugn the right of action altogether, which 
 answer the plaintiff's allegations of right 
 conclusively. Pleas are also said to be to the 
 jurisdiction of the court, in suspension of the 
 action, in abatement of the writ, in bar of the 
 action. The first three classes are dilatory, 
 the last peremptory. Steph. PL 63 ; 1 Chitty, 
 PL 425; Lawes, PL 36. 
 
 Fleas are of various kinds. In abatement. 
 See Abatement. In avoidance, called, also, 
 confession and avoidance, which admits, in 
 words, or in effect, the truth of the matters 
 
 contained in the declaration, and alleges some 
 new matter to avoid the effect of it and show 
 that the plaintiff is, notwithstanding, not en- 
 titled to his action. 1 Chitty, PI. 540" 
 Lawes, PL 122. Every allegation made m 
 the pleadings subsequent to the declaration 
 which does not go in denial of what is before 
 alleged on the other side is an allegation of 
 new matter. Gould, PL ch. iii. § 195. 
 
 Pleas in bar deny that the plaintiff has* 
 any cause of action. 1 Chitty, PL 407 • Co. 
 Lit. 303 b. They either conclude the plain! 
 tiff by matter of estoppel, show that he never 
 had any cause of action, or, admitting that 
 he had, insist that it is determined by some 
 subsequent matter. 1 Chitty, PL 407; Steph 
 PL 70 ; Britt. 92. They either den)- all or 
 some essential part of the averments in the 
 declaration, in which case they are said to 
 traverse it, or, admitting them to be true 
 allege new facts which obviate and repel'their 
 legal effect, in which case they are said to 
 confess and avoid. Steph. PL 70. The 
 term is often used in a restricted sense to de- 
 note what are with propriety called special 
 pleas in bar. These pleas are of two kinds; 
 the general issue, and special pleas in bar. 
 The general issue denies or takes issue upon 
 all the material allegations of the declaration, 
 thus compelling the plaintiff to prove all of 
 them that are essential to support his action. 
 There is, however, a plea to the action which 
 is not strictly either a general issue or a spe- 
 cial plea in bar, and which is called a special 
 issue, which denies only some particular part 
 of the declaration which goes to the gist of 
 the action. It thus, on the one hand, denies 
 less than does the general issue, and, on the 
 other hand, is distinguished from a "special 
 plea in bar" in this, — that the latter univer- 
 sally advances new matter, upon which the 
 defendant relies for his defence, which a spe- 
 cial issue never does; it simply denies. 
 Lawes, PL HO, 112, 113, 145; Co. Litt. 
 126 a; Gould, PL ch. ii. § 38, ch. vi.8 8. 
 The matter which ought to be so pleadea is 
 now very generally given in evidence under 
 the general issue. 1 Chitty, PL 415. 
 
 Special pleas in bar admit the facts alleged 
 in the declaration, but avoid the action by 
 matter which the plaintiff would not be 
 bound to prove or dispute in the first instance 
 on the general issue. 1 Chitty, PL 442 ; Ld. 
 Raym. 88. They are very various, according 
 to the circumstances of the defendant's case: 
 as, in personal action the defendant may plead 
 any special matter in denial, avoidance, dis- 
 charge, 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 rwied 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 dernana- 
 ant's title ; as, a general release. Stepn. r . 
 115,116. 
 
PLEA 
 
 419 
 
 PLEA 
 
 The general qualities of a plea in bar are — 
 first, that it be adapted to the nature and form 
 of the action, and also conformable to the 
 count. Co. Litt. 303 a ; 285 b ; Bacon, Abr. 
 Pleas (I); 1 Rolle, 216. Second, that it 
 answers all it assumes to answer, and no more. 
 Co. Litt. 803 a; Comyns, Dig. Pleader (E 
 1, 36) ; 1 Saund. 28, nn. 1, 2, 3 ; 2 B. & P. 
 427 ; 3 id. 174. ' Third, in the case of a spe- 
 cial plea, that it confess and admit the fact. 
 3 Term, 298 ; 1 Salk. 394 ; Garth. 380 ; 1 
 Saund. 28, n., 14, n. 3; 10 Johns. 289. 
 Fourth, that it be single. Co. Litt. 307 ; 
 Bacon, Abr. Pleas (K 1, 2) ; 2 Saund. 49, 
 50 ; Plowd. 150 d. Fifth, that it be certain. 
 Comyns, Dig. Pleader (E 5-11, C 41). See 
 Cektaijsty ; Pleading. Sixth, it must be 
 direct, positive, and not argumentative. See 
 6 Cra. 126 ; 9 Johns. 313. Seventh, it must 
 be capable of trial. Eighth, it must be true 
 and capable of proof. 
 
 The parts of a plea are— _/frs/, the title of 
 the court. Second, the title of the term. 
 Third, the names of the parties in the mar- 
 gin. These, however, do not constitute any 
 substantial part of the plea. The surnames 
 only are usually inserted, and that of the de- 
 fendant precedes the plaintiflF's: as, "Koews. 
 Doe." Fourth, the commencement, which 
 includes the statement of the name of the 
 defendant, the appearance, the defence, see 
 Defence, the actio non, see Actio Non. 
 Fifth, the body, which may contain the in- 
 ducement, the protestation, see Protesta- 
 tion, ground of defence, qucs est eadem, the 
 traverse. Sixth, the conclusion. 
 
 Dilatory pleas go to destroy the particular 
 action, but do not affect the nght of action in 
 the plaintiff, and hence delay the decision of 
 the cause upon its merits. Gould, PI. ch. ii. 
 § 33. This class includes pleas to the juris- 
 diction, to the disability of the parties, and 
 all pleas in abatement. All dilatory pleas 
 must be pleaded with the greatest certainty, 
 must contain a distinct, clear, and positive 
 averment of all ipaterial • facts, and must, in 
 
 feneral, enable the plaintiff to correct the de- 
 oiency or error pleaded to. 1 Chitty, PI. 
 365. See Abatement ; Jurisdiction. 
 
 Pleas in discharge admit ihe demand of 
 the plaintiff, and show that it has been dis- 
 charged by some matter of fact. Such are 
 pleas of judgment, release, and the like. 
 
 Pleas in excuse admit the demand or com- 
 plaint stated in the declaration, but excuse the 
 non-compliance with the plaintiff's claim, or 
 the commission of the act of which he com- 
 plains, on account of the defendant's having 
 done all in his power to satisfy the former, or 
 not having been 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. 
 
 Foreign pleas go to the jurisdiction ; and, 
 their effect is to remove the action from the 
 county in which the venue is originally laid. 
 Carth. 402. Previous to the statute of Anne, 
 an affidavit was required. 5 Mod. 335 ; Carth. 
 402 ; 1 Saund. PI. 98, n. 1 ; Viner, Abr. 
 
 Foreign Pleas ; 1 Chitty, PI. 382 ; Bacon, 
 Abr. Abatement (R). 
 
 Pleas of justification, which assert tliat 
 the defendant has purposely done the act of 
 which the plaintiff complains, and in the ex- 
 ercise of his legal rights. 8 Term, 78 ; 3 
 Wils. 71. No person is bound to justify who 
 is not primd facie a wrong-doer. 1 Leon. 
 301 ; 2 id. 83 ; Cowp. 478 ; 4 Pick. 126 ; 13 
 Johns. 443, 579 ; 1 Chitty, PI. 436. 
 
 Pleas puis ~ darrein continuance, which 
 introduce new matter of defence, which has 
 arisen or come to the plaintiff's knowledge 
 since the last continuance. In most of the 
 states, the actual continuance of a cause from 
 one terra to another, or from one particular 
 day in term to another day in the same term, 
 is practically done away with, and the pre- 
 scribed times for pleading are fixed without 
 any reference to terms of court. Still, this 
 right of a defendant to change his plea so as 
 to avail himself of facts arising during the 
 course of the litigation remains unimpaired ; 
 and though there De no continuance, the plea 
 is still called a plea puis darrein continuance, 
 — meaning, now, a plea upon facts arising 
 since the last stage of the suit. They are 
 either in bar or in abatement. Matter which 
 arises after purchase or issue of the writ, and 
 before issue joined, is properly pleaded in bar 
 of the further maintenance of the suit ; 4 
 East, 502 ; 3 Term, 186 ; 5 Pet. 224; 4 Me. 
 582; 12 Gill & J. 358; see 7 Mass. 325; 
 while matter subsequent to issue joined must 
 be pleaded puis darrein continuance. 1 
 Chitty, PL 569 ; 30 Ala. N. s. 253 ; Hempst. 
 16 ; 40 Me. 582 ; 7 Gill, 415 ; 10 Ohio, 300. 
 Their object is to present matter which has 
 arisen since issue joined, and which the de- 
 fendant cannot introduce under his pleadings 
 as they exist, for the rights of the parties 
 were at common law to be tried as tliey ex- 
 isted at the time of bringing the suit, and mat- 
 ters subsequently arising come in as it were 
 by exception and favor. See 7 Johns. 194. 
 
 Among other matters, it may be pleaded 
 that the plaintiff has become an alien enemy ; 
 3 Camp. 152 ; that an award has been made 
 after issue joined ; 2 Esp. 504 ; 29 Ala. N. s. 
 619 ; that there has been accord and satisfac- 
 tion ; 5 Johns. 392 ; that the plaintiff has be- 
 come bankrupt ; Tidd, Pr. 800 ; 1 Dougl. 
 Mich. 267 ; that the defendant has obtained a 
 bankrupt-certificate, even though obtained be- 
 fore issue joined ; 9 East, 82 ; see 2 H. 
 Blackst. 553 ; 3 B. & C. 23 ; 3 Denio, 269 ; 
 that a feme plaintiff has taken a husband ; 
 Bull. N. P. 310 ; 1 Blackf. 288 ; that judg- 
 ment has been obtained for the same cause of 
 action ; 9 Johns. 221 ; 5 Dowl. & R. 1 75 ; 
 that letters testamentary or of administration 
 have been granted ; 2Stra.ll06; 1 Saund. 
 265, n. 2 ; or revoked ; Comyns, Dig. 
 Abatement (I 4) ; that the plaintiff has re- 
 leased the defendant ; 4 Cal. 331 ; 3 Sneed, 
 52 ; 17 Mo. 267. See 33 N. H. 179. But 
 the defendant in ejectment cannot plead re- 
 lease from the lessor of the plaintiff ; 4 Maule 
 & S. 300 ; 7 Taunt. 9 ; and the release will 
 
PLEA 
 
 420 
 
 PLEADING 
 
 be avoided in case of fraud ; 7 Taunt. 48 ; 4 
 B. & Ad. 419; 4 J. B. Moore, P. C. 192; 
 23 N. H. 635. 
 
 As a general rule, such matters must be 
 pleaded at the first continuance after they 
 happen or come to the plaintiiPs knowledge ; 
 H Johns. 424; 1 S. & R. 146 ; though a dis- 
 charge in insolvency or bankruptcy of the de- 
 fendant ; 2 E. D. Smith, 396; 2 Johns. 
 294; 9 id. 255, 392; and coverture of the 
 plaintiff existing at the purchase of the suit, 
 are exceptions ; Bull. N. P. 310 ; in the dis- 
 cretion of the court ; .10 Johns. 161 ; 4 S. & 
 K. 239; 5 Dowl. & B,. 521; 2 Mo. 100. 
 Oreat certainty is required in pleas of this 
 description; Yelv. 141; Freem. 112; Cro. 
 Jac. 261 ; 2 Wils. 130 ; 2 Watts, 451. They 
 must state the day of the last continuance, and 
 of the happening of the new matter ; Bull. 
 N. P. 309 ; 1 Chitty, PI. 572 ; 7 111. 252 ; can- 
 not be awarded after assizes are over ; 2 M' CI. 
 & Y. 350 ; Freem. 252 ; must be verified on 
 oath before they are allowed ; 1 Stra. 493 ; 1 
 Const. So. C. 455 ; and must then be re- 
 ceived ; 5 Taunt. 333; 3 Term, 554; 1 
 Stark. 52; 1 Marsh. 70, 280; 15 N. H. 
 410. They stand as a substitute for former 
 pleas; 1 Salk. 178; Hob. 81; Hempst. 16; 
 4 Wise. 159; 1 Strobh. 17; and demurrers; 
 32 E. L. & E. 280; may be pleaded after a 
 plea in bar; 1 Wheat. 215; Al. 67; Freem. 
 252; and if decided against the defendant, 
 the plaintiflT has judgment in chief ; 1 Wheat. 
 215; Al. 67; Freem. 252. 
 
 Sham pleas are those which are known to 
 the pleader to be false, and are 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, are tacitly 
 allowed : as, for example, the common plea 
 of judgment recovered, that is, that judg- 
 ment has been alreac^ recovered by the 
 plaintiff for the same cause of action ; Steph. 
 PI. 444, 445,'' 1 Chitty, PI. 505, 506. See 
 14 Barb. 393 ; 2 Denio, 195. The later 
 practice of courts in regard to sham pleas is to 
 strike them out on motion, and give final 
 judgment for the plaintiff, or impose terms (in 
 the discretion of the court) on the defendant, 
 as a condition of his being let in to plead anew. 
 The motion is made on the plea itself, or on 
 affidavits in connection with the plea. 
 
 Pleas in suspension of the action show 
 some ground for not proceeding in the suit at 
 the present period, and pray 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. 
 Steph. PL 64. 
 
 See, generally, Bacon, Abr. Pleas (Q) ; 
 Comyns, Dig. Abatement (I 24, 34) ; Doc- 
 trina Plac. 297 ; BuUer, Nisi P. 309 ; Lawes, 
 Civ. Plead. 173; 1 Chitty, Plead. 634; 
 Stephen, Plead. 81; Gould, Plead.; Bou- 
 vier, Inst. Index. 
 
 In ecclesiastical courts, a plea is called an 
 allegation. See Allegation. 
 
 PLEAD, TO. To answer the indictment 
 or, m a civil action, the declaration of the 
 plaintiff, in a formal manner. To enter the 
 defendant's defence upon record. In a pom- 
 lar use, to make a forensic argument. The 
 word is not so used by the profession. Stenh 
 PI. App. n. I ; Story, Eq. PI. § 4, n. 
 
 PLEADING. In Chancery Practice. 
 Consists in making the formal written allega- 
 tions or statements of the respective parties 
 on the record to maintain the suit, or to defeat 
 it, of which, when contested in matters of 
 fact, they propose to offer proofs, and in mat- 
 ters of law to offer arguments to the court. 
 Story, Eq. PI. § 4, n. ' The substantial ohi 
 ject of pleading is the same, but the forms 
 and rules of pleading are very different, at 
 law and in equity. 
 
 In Civil Practice. The stating in a logical 
 and legal form 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 constitutes 
 the support or the defence of the party in 
 evidence. 3 Term, 159 ; Dougl. 278 ; Comyns, 
 Dig. Pleader (A) ; Bacon, Abr. Pleas and 
 Pleading; Cowp. 682. Pleading is used to 
 denote the act of making the pleadings.. . 
 
 The object of pleading is to secure a clear 
 and distinct statement of the claims of each 
 party, so that the controverted points may be 
 exactly known, examined, and decided, and 
 the appropriate remedy or punishment ad- 
 ministered. See Cowp. 682; Dougl. 159. 
 Good pleading consists in good matter pleaded 
 in good form, in apt time and due order ; Co. 
 Litt. 303. Good matter includes all facts and 
 circumstances necessary to constitute the 
 cause of complaint or ground of defence, and 
 no more. It does not include arguments or 
 matters of law. But some matters of fact 
 need not be stated, though it be necessary to 
 establish them as facts. Such are, among 
 others, facts of which the courts take notice 
 by virtue of their office : as, the time of ac- 
 cession of the sovereign ; 2 Ld. Eaym. 794 ; 
 time and place of holding parliMaent; 1 
 Saund. 131 ; public statutes and the facts they 
 ascertain; 1 Term, 45 ; including ecclesiastical, 
 civil, and marine laws ; Ld. Kaym. 838 ; but 
 not private ; 2 Dougl. 97 ; or foreign laws; 2 
 Carth. 27S; 4 K. I. 523; common-law rights, 
 duties, and general customs ; Ld. Raym. 1642; 
 Co. Litt. 175; Cro. Car. 561; the almanac, 
 days of the week, public holidays, etc.; Salk. 
 269 ; 6 Mod. 81 ; 4 Dowl. 48; 4 Fla. 158; 
 political divisions ; Co. 2d Inst. 557 ; 4 B. & 
 Aid. 242 ; 6 111. 73 ; the meaning of Eng- 
 lish words and terms of art in ordinaiy ac- 
 ceptation ; 1 Rolle, Abr. 86, 525 ; thek own 
 course of proceedings; 1 Term, 118; 2 Lev. 
 1-76; 10 Pick. 470; see 16 East, 39; and 
 that of courts of general jurisdiction; 1 
 Saund. 73; 5 McLean, 167; 10 Pick. 470; 
 3 B. & P. 183 ; 1 Greenl. Ev. §§ 4-6 ; facU 
 which the law presumes : as, the innocence of 
 
PLEADING 
 
 421 
 
 PLEADINGS 
 
 a party, illegality of an act, etc. ; 4 Maule & 
 S. 105; 1 B. & Aid. 463; 2 Wils. 147; 6 
 Johns. 105 ; 16 East, 343 ; 16 Tejt. 885 ; 6 
 Conn. 130 ; matters which the other party 
 should plead, as being more within his knowl- 
 edge ; 1 Sharsw. Bla. Com. 293, n. ; 8 Term, 
 167 ; 2 H. Blaekst. 530 ; 2 Johns. 415 ; 9 
 Cal. 286 ; 1 Sandf. 89 ; 3 Cow. 96 ; mere 
 matters of evidence of facts; 9 Co. 96; 
 Willes, 130 ; 25 Barb. 457 ; 7 Tex. 603 ; 6 
 Blackf. 173; 1 N. Chipm. 293; unnecessary 
 matter: as, a second breach of condition, 
 where one is sufficient ;, 2 Johns. 443 ; 1 
 Saund. 58, n. 1 ; 33 Miss. 474 ; 4 Ind. 409 ; 
 23 N. H. 415 ; 12 Barb. 27 ; 2 Green, N. J. 
 677; see Duplicity ; or intent to defraud, 
 when the facts alleged constitute fraud ; 16 
 Tex. 835 ; see 3 Maule & S. 182 ; irrelevant 
 matter; 1 Chitty, PI. 209. Such matter may 
 be rejected without damage to the plea, if 
 wholly foreign to the case, or repugnant ; 7 
 Johns. 462; 3 Day, 472 ; 2 Mass. 2^ ; 8 S. 
 &R. 124; 11 Ala. 145; 16 Tex. 656; 7 Cal. 
 348; 23 Conn., 134; 1 Du. N. Y. 242; 6 
 Ark. 468 ; 8 Ala. n. s. 320 ; but in many 
 cases the matter must be proved as stated, if 
 stated ; 7 Johns. 321 ; 3 Day, 283 ; Phill. 
 Ev. 160. The matter must be true and sus- 
 ceptible of proof; but legal fictions may be 
 stated as facts ; 2 Burr. 667 ; 4 B. & P. 140. 
 2heform of statement should be according 
 to the established forms ; Co. Litt. 303 ; 6 
 East, 351 ; 8 Co. 48 6. This is to be con- 
 sidered as, in general, merely a rule of cau- 
 tion, though it is said the courts disapprove 
 a departure from the well-established tbrms 
 of pleading; 1 Chitty, PI. 212. In most of 
 the states of the United States, and in Eng- 
 land since 1852, many radical changes have 
 been introduced into the law of pleading : 
 still, it is apprehended that a reasonable re- 
 gard to the old forms will be profitable, al- 
 though the names of things may be changed. 
 See 3 Sharsw. Bla. Com. 301, n.; 3 Cal. 196 ; 
 28 Miss. 766 ; 14 B. Monr. 83. In general, 
 it may be said that the facts should be stated 
 logically, in their natural order, with cer- 
 tainty, that is, clearly and distinctly, so that the 
 party who is to answer, the court, and the jury 
 may readily understand what is meant ; Cowp. 
 682; 2 B. & P. 267; 60. Litt. 303; 13 
 East, 107; 33 Miss. 669; Hempst. 238; 
 with precision; 13 Johns. 437 ; 19 Ark. 696 ; 
 5 Du. N. Y. 689 ; and with brevity ; 36 N. 
 H. 468 ; 1 Chitty, PI. 212. The facts stated 
 must not be insensible or repugnant ; 1 Salk. 
 324; 7 Co. 26; 25 Conn. 431; 5 Blackf. 
 339; nor ambiguous or doubtful in meaning; 
 5 Maule & S. 38 ; Yelv. 36 ; nor argumenta- 
 tive; Co. Litt. 303 ; 5 Blackf. 657 ; nor by 
 way of recital; 2 Bulstr. 214; Ld. Raym. 
 1413 ; and should be stated accordingto their 
 legal efiect and operation; Steph. PL 378- 
 392; 16 Mass. 443; 12 Pick. 251. 
 _ '^he time within which pleas must be filed 
 13 a matter of local regulation, depending 
 upon the court in which the action is brought. 
 The order of pleading different matters is of 
 
 importance as affecting the defendant, who 
 may oppose the plaintiff's suit in various ways. 
 The order is as follows : — ■ 
 
 jPHrst, to the jurisdiction of the court. 
 
 Second, to the disability, etc. of the person : 
 frst, of the plaintiff; second, of the defendant. 
 
 Third, to the count or declaration. 
 
 Fourth, to the writ : first, to the form of 
 the writ, — first, matter apparent on the face 
 of it, secondly, matters dehors ; second, to 
 the action of the writ. 
 
 Fifth, to the action itself in bar. 
 
 This is said to be» the natural order of 
 pleading, because each subsequent plea ad- 
 mits that there is no foundation for the for- 
 mer; 13 La. An. 147; 41 Me. 102; 7 Gray, 
 38 ; 5 E. I. 235 ; 2 Bosw. 267 ; 1 Grant, Cas. 
 Pa. 359; 4 Jones, No. C. 241; 3 Miss. 704; 
 20 id. 656 ; 1 Chitty, PI. 425. See 16 Tex. 
 114; 4 Iowa, 168. An exception exists 
 where matter is pleaded puis darrein contin- 
 uance, see Plea ; and where the subject- 
 matter is one over which the court has no 
 jurisdiction, a failure to plead to the puis 
 cannot confer jurisdifttion ; 10 S. & E. 229 ; 
 17 Tex. 52. 
 
 The science of pleading, as it existed at 
 common law, has been much modified by 
 statutory changes ; but, under whatever names 
 it is done, — whether under rules of court, or 
 of the legislative power, by the parties, the 
 court, or the jury, — it is evident that, in the 
 nature of things, the end of pleading must be 
 attained, namely, the production ot one or 
 more points of issue, where a single fact is 
 affirmed by one party and denied by the 
 other. By pleading at the common law, this 
 was done by the parties ; in the civil law, by 
 the court. 
 
 In England, pleadings in actions are now 
 governed by the provisions of the Judicature 
 Act, ord.xix. which made a number of changes 
 in the old common law methods. See Whar- 
 ton, Diet.; Judicature Acts. 
 
 In Criminal Practice the rules of pleading 
 are the same as in civil practice. There is, 
 however, less liberty of amendment of the 
 indictment. The order of the defendant's 
 pleading is as follows -.—first, to the jurisdic- 
 tion ; second, in abatement ; third, special 
 pleas in bar : as, autrefois acquit, autrefois 
 attaint, autrefois convict, pardon ; fourth, the' 
 general issue. 
 
 See, generally, Lawes, Chitty, Stephen, 
 Gould, Pleading; 3 Sharsw. Bla. Com. 301 
 et seq. and notes ; Co. Litt. 303 ; Comyns, 
 Dig. Pleader ; Bacon, Abr. Plea and Plead- 
 ing; Bates, Pleadings under the Code ; Nash, 
 PI. & Pr. 
 
 PLEADING, SPECIAL. By special 
 pleading is meant the allegation of special or 
 new ipatter, as distinguished from a direct 
 denial of matter previously alleged on the 
 opposite side. Gould, PI. c. 1, s. 18. See 
 Special Pleading. 
 
 PLEADINGS. In Chancery Practice. 
 The written allegations of the respective par- 
 
PLEAS OF THE CROWN 
 
 422 
 
 PLEDGE, PAWN 
 
 ties in the suit. The pleadings in equity are 
 less formal than those at common law. 
 
 The parts of the pleadings are — the hill, 
 which contains the plaintiff's statement of his 
 case, or information, where the suit is brought 
 by a public oflBcer in behalf of the sovereign ; 
 the demurrer, by which the defendant de- 
 mands judgment of the court, whether he 
 shall be compelled to answer the bill or not ; 
 the plea, whereby he shows some cause why 
 the suit should be dismissed or barred ; the 
 answer, which, controverting the case stated 
 by the bill, confesses and avoids it, or traverses 
 and denies the material allegations in the bill, 
 or, admitting the case made by the bill, sub- 
 mits to the judgment of the court upon it, or 
 relies upon a new case or upon new matter 
 stated in the answer, or upon both ; dis- 
 claimer, which seeks at once a termination of 
 the suit by the defendants, disclaiming all 
 right and interest in the matter sought by the 
 bill ; Story, Eq. PI. § 546 ; Mitf. Eq. PI. by 
 Jer. 13, 106; Cooper, Eq. PI. 108; 2 Story,59. 
 
 In Civil Practice. The statements of the 
 parties, in legal and proper manner, of the 
 causes of action and grounds of defence. The 
 result of pleading. They were formerly made 
 by the parties or their counsel, orally, in open 
 court, under the control of the judge. They 
 were then called the parole ; 3 Bla. Com. 293 ; 
 2 Keeves, Hist. Eng. Law, 267. 
 
 The parts of the pleadings may be arranged 
 under two heads : the regular, which occur in 
 the ordinary course of a suit ; and the irregular 
 or collateral, which are occasioned by errors 
 in the pleadings on the other side. 
 
 The regular parts are — the declaration or 
 count ; the plea, which is either to the juris- 
 diction of the court, or suspending the action, 
 as in the case of a parol demurrer, or in abate- 
 ment, or in bar of the action, or in replevin, 
 an avowry or cognizance; the replication, 
 and, in case of an evasive plea, a new assign- 
 ment, or, in replevin, the plea in bar to the 
 avowry or cognizance; the rejoinder, or, in 
 replevin, the replication to the plea in bar ; 
 the sur-rejoinder, being in replevin the re- 
 joinder ; the rebutter; the sur-rebutter; Viner, 
 Abr. Pleas and Pleading (C) ; Bacon, Abr. 
 Pleas and Pleadings (A) ; pleas puis darrein 
 continuance, when the matter of defence 
 arises pending the suit. 
 
 The irregular or collateral parts of plead- 
 ing are stated to be — demurrers to any part 
 of the pleadings above mentioned ; demurrers 
 to evidence given at trials ; bills of excep- 
 tions ; pleas in scire facias ; and pleas in 
 error. Viner, Abr. Pleas and Pleadings 
 (C) ; Bouvier, Inst. Index. 
 
 In Criminal Practice, the pleadings are— 
 first, the indictment ; second, the plea ; and 
 the other pleadings as in civil practice. 
 
 PLEAS OF THE CROWN. In Bng- 
 liflh Lavr. A phrase now employed to sig- 
 nify criminal causes in which the king is a 
 party. Formerly it signified royal causes for 
 offences of a greater magnitude than mere 
 misdemeanors. 
 
 These were left to be tried in the courts of th* 
 barons ; whereas the greater offencee, or rov«i 
 causes, were to be tried in the king's courts m 
 der the appellation of pleas of the crown i 
 Robertson, Hist. Charles V. 48. ^ 
 
 PLEAS ROLL. In English PracHoe 
 A record which contains the declaration plea 
 replication, rejoinder, and other pleading' 
 and the issue. Eunom. Dial. 2 8 29 n 
 111. * ' ^' 
 
 PLEBEIAN. One who is classed amone 
 the common people, as distinguished from 
 the nobles. / 
 
 PLEBISCITUM (Lat.). In Homan 
 Law. A law established by the people 
 (pubs'), on the proposal of a popular magis- 
 trate, as a tribune. Vicat, Voc. Jur.; CaU 
 vinus. Lex.; Mackeldey, Civ. Law, §§ 27, 
 
 Ot. 
 
 PLEDGE, PAWN. A bailment of per- 
 sonal peoperty as security for some debt or en- 
 gagement. 
 
 A pledge or pawn (Lat. pignus), according (jo, 
 Story, is a bailment of personal property a< 
 security for some debt or engagement. Story, 
 Bailm. § 286, which see for the lees comprehen- 
 sive definitions of Sir Wm. Jones, Lord Holt, 
 Pothler, etc. Domat broadly defines it as an 
 appropriation of the thing given for the security 
 of an engagement. But the term is commonly 
 used as Sir Wm. Jones defines it : to wit, as a 
 bailment of goods by a debtor to liis creditor, to 
 be kept till the debt is discharged. Jones, Bailm. 
 117 ; 2 Ld. Raym. 909 ; Pothier, de Naut. art. 
 prelim. 1 ; Code, Civ. 3071 ; Domat, b. 3, tit. 1, 
 § 1, n. 1 ; La. Civ. Code, 3100 ; 6 Ired. 309. Tlie 
 pledgee secures his debt by the bailment, and the 
 pledgeor obtains credit or other advantage. See 
 1 Pars. Contr. 591 et aeq. 
 
 Delivery. The first essential thing to be 
 done is a delivery to the pledgee. Without 
 his possession of the thing, the transaction is 
 not a pledge ; 37 Me. 543. But a construc- 
 tive possession is all that is required of the 
 pledgee. Hence, goods at sea or in a ware- 
 house pass by transfer of the muniments of 
 title, or by symbolic delivery.' Stocks and 
 equitable interests may be pledged ; and it 
 will be sufficient if, by proper transfer, the 
 property be put within the power and control 
 of the pledgee ; 12 Mass. 300 ; 20 Pick. 405 ; 
 22 N. H. 196; 2 N. Y. 403; 7 Hill, 497. 
 Stocks are usually pledged by delivery of the 
 company's certificate, together with a power 
 of attorney to the pledgee to make the trans- 
 fer, leaving the actual transfer to be made 
 subsequently. 
 
 Primd facie, if the pledgee redeliver the 
 pledge to the pledgeor, third parties without 
 notice might regard the debt as paid. Still, this 
 presumption can be rebutted, in most states. 
 In some states courts in effect hold that even in 
 case of sale, as well as in case of pledge, posses- 
 sion of the vendor is fraud per se, and refuse 
 to admit explanatory evidence. In such 
 states, therefore, a vendee may always take 
 the pledge if found in the vendor's possession ; 
 5 N. H. 345 ; 14 Pick. 509 ; 4 Jones, No. C. 
 40, 43. The prevailing rule is, however, that 
 a temporary redelivery to the pledgeor makes 
 
PLEDGE, PAWN 
 
 423 
 
 PLEDGE, PAWN 
 
 him only the agent or bailee of the pledgee, 
 and the latter does not lose his special prop- 
 erty or even his constructive possession ; 5 
 Bingh. N. C. 136; U E. L. & E. 684; 8 
 Whart. 531; 5 Humphr. 308; 32 Me. 211 ; 
 
 1 Sandf. 248. 
 
 Subject of pledge. Any tangible personal 
 property may be pledged except for the pe- 
 culiar rules of maritime law which are appli- 
 cable to shipping. Hence, not only goods 
 and chattels and money, but also n^otiable 
 paper, may be put in pledge. So may 
 choses in action, patent rights, coupon bonds, 
 and manuscripts of various sorts ; 1 Ves. 278 ; 
 
 2 Taunt. 268 ; 15 Mass. 389, 634 ; 2 Blackf. 
 198 ; 7 Me. 28 ; 4 Denio, 227 ; 2 N. Y. 443 ; 
 1 Stockt. 667; Story, Bailm. § 290. So 
 
 . may bonds secured by a mortgage on personal 
 property and corporate franchises ; 50 N. 
 H. 57 ; and chattel' mortgages of every de- 
 scription ; 36 Wise. 35, 946, and 734. Even 
 a lease may be taken in pledge ; 8 Cal. 145 ; 
 L. R. 10 Eq. 92 ; for leases are but chattels 
 real ; or a mortgage of real estate, which be- 
 fore foreclosure, is now to be ranked with 
 personal property ; 9 Bosw. 322 ; Schoul. 
 Bailm. 167. . Incorporeal things could be 
 pledged immediately, probably, under the 
 civillaw, and so in the Scotch law, or, at all 
 events, by assignment ; 1 Domat, b. 3, tit. 1, 
 § 1 ; Pothier, de Naut. n. 6 ; 2 Bell, Com. 
 23. The laws of France and Louisiana re- 
 quire a written act of pledge, duly registered 
 and made known, in order to be made good 
 against third parties. In the civil law, prop- 
 erty of which the pledgeor had neither pres- 
 ent possession nor title could be pledged, — 
 though this was rather a contract for pledge, 
 called a hypothecation. The pledge became 
 complete when the property was acquired by 
 the pledgeor. The same rule holds in our 
 law, where a hypothecary contract gives a lien 
 which attaches when the property is vested ; 
 1 Hare, 549; 13 Pick. 175; 14 id. 497 ; 21 
 Me. 86; 16 Conn. 276; Daveis, 199. And 
 it has been held that a pledge may be made 
 to secure an obligation not yet risen into 
 existence; 12 La. An. 529. In an agree- 
 ment to pledge a vessel not then completed, 
 the intent of the parties governs in determin- 
 ing when the property passes ; 8 Pick. 236 ; 
 f24 E. L. & E. 220. 
 
 A life-policy of insurance may be pledged, 
 or a wife's life-policy. The commbn law 
 does not permit the pay and emoluments of 
 officers and soldiers to be pledged, from pub- 
 lic policy ; 1 H. Blackst. 627 ; 4 Term, 248. 
 Hence, probably, a fishing-bounty could not be 
 pledged, lon the ground that government pen- 
 sions and bounties to soldiers, sailors, etc., 
 for their personal benefit, cannot be pledged. 
 A bank can pledge the notes left with it for 
 discount, if it is apparent on the face of the 
 notes that the bank is their owner. 
 
 Ordinary care. The pawnee is bound to 
 take ordinary care of his pawn, and is liable 
 only for ordinary neglect, because the bail- 
 ment is for the mutu^ benefit of both parties. 
 
 Hence, if the pledge is lost and \he pledgee 
 has taken ordinary care, he may still re- 
 cover his debt. Such losses often result from 
 casualty, superior force, or intrinsic defect 
 against which a man of ordinary prudence 
 would not have efiectually guarded himself. 
 If a pledgeor find it necessary to employ an 
 agent, and he exercise ordinary caution in his 
 selection of the agent, he will not be liable 
 for the latter's neglect or misconduct; 1 La. 
 An. 344 ; 10 B. Monr. 239 ; 4 Ind. 425 ; 8 
 N. H. 66 ; 14 id. 567 ; 6 Cal. 643. 
 
 Loss by theft is prima facie evidence of a, 
 want of ordinary care, and the bailee must re- 
 but the presumption. The facts in each case 
 regulate the liablity. Theft is only evidence, 
 in short, and not absolute presumption, . of 
 negligence. Perhaps the only safe rule is 
 that, where the pledgee pleads loss by theft as 
 ground for not performing his duty, to excuse 
 himself he must show that the theft could not 
 have been prevented by ordinary care on his 
 part. If the bailor should assert in his decla- 
 ration that the pledge was lost by the bailee's 
 fault, he would be compelled to prove the 
 charge as laid. 
 
 Use. The reasonable use* of a pledge is 
 allowed to a pledgee, according to Lord Holt, 
 Sir Wm. Jones, and Story, provided it be of 
 no injury or peril to the bailment. The rea- 
 son given by Story is precise, namely, that 
 where use of the pledge is beneficial to it, or 
 cannot depreciate it, theconsent of thepledgeor 
 to such use may fairly be presumed ; but not 
 otherwise. Still, the word peril is somewhat 
 broad. If the pawn be in its nature a charge 
 upon the pawnee, — as a horse or cow, — he 
 may use it, moderately, by way of recom- 
 pense. For any unusual care he may get 
 compensation from the owner, if it were 
 not contemplated by the parties or im- 
 plied in the nature of the bailment; Ld. 
 Raym. 909 ; 2 Salk. 522 ; 1 Pars. Contr. 
 593. The pawnee is answerable in damages 
 for an injury happening while he is using 
 the pawn. Still, though he use it tortiously, 
 he is only answerable by action. His pledgee's 
 lien is not thereby forfeited ; 4 Watts, 414. 
 A pledgee can exercise a horse, but not loan 
 it for hire. The rule is, that if he derive any 
 profits from the pledge they must be applied 
 to the debt ; 2 Murph. 111. 
 
 The pledgee, of shares of stock, in the ab- 
 sence of a specific agreement to the contrary, 
 may transfer the stock to his own name on 
 the books of the company, and when so trans- 
 ferred, the particular shares become undistin- 
 guishable from the common mass, and the 
 pledgeor is not entitled to the return of the 
 identical shares pledged; 11 Fed. Rep. 115; 
 s. c. 21 Am. L. Reg. n. s. 452, and note 
 citing 69 Penn. 409 ; 8 Nev. 345. 
 
 Property. The pledgee has at common 
 law a special property in the pledge, and is 
 entitled to the exclusive possession of it dar- 
 ing the time and for the objects for which it 
 is pledged. If a wrong-doer take the pledge 
 from him, he is not thereby ousted from ms 
 
TLEDGE, i:'4\VJN 
 
 4^4 
 
 ifLEUliE, PAWN 
 
 right. His special property is enough for 
 him to support replevin or trover against the 
 wrong-doer. He has, moreover, a right to 
 action, because he is responsible to his pledge- 
 or for proper custody of the bailment. The 
 pledgeor, also, may have his action against 
 the wrong-doer, resting it on the ground of 
 his general property. A judgment for either 
 pledgeor or pledgee is a bar against a similar 
 action by the other; 2 Bla. Com. 395; 6 
 Bligh. N. s. 127 ; 1 B. & Aid. 59 ; 5 Binn. 
 457; see 15 Conn. 302; 9 Gill, 7; 13 Me. 
 436 ; 13 Vt. 504. 
 
 The bailee, having a special property, re- 
 covers only the value of his special property 
 as against the owner, but the value of the 
 whole property as against a stranger, and the 
 balance beyond the special property he holds 
 for the owner ; 15 Conn. 302. So if the owner 
 brings the action and recovers the whole 
 damages, including those for deprivation of 
 possession, it must be with the consent of the 
 pledgee. 
 
 A pledgee may bring replevin or trover 
 against the pledgeor if the latter remove his 
 pledge before paying the debt and thus injure 
 the pledgee's rights, on the ground that the 
 owner has parted with his absolute right of 
 <Ksposing of the chattel until he has redeemed 
 it from its state of pledge ; 2 Taunt. 268 ; 1 
 Sandf. 208 ; 22 N. H. 196 ; 11 N. Y. 150 ; 
 2M'Cord, 126. Yet in trover the damages 
 recovered cannot be greater than the amount 
 of the debt, if the defendant derives title 
 under the pledgeor ; 4 Barb. 491 ; 13 111. 465. 
 
 Sale. If the pledgeor fail to pay the debt, 
 the pledgee may sell the pledge. Formerly 
 a decree of court was necessary to make the 
 sale valid, and under the civil law it is still 
 so in many continental countries. It is safer 
 in a large pledge to proceed by bill in equity 
 to foreclose ; but this course is ordinarily too 
 expensive. A demand of payment, however, 
 must be made before sale ; and if the pledgee 
 mentions no time of sale, he may demand at 
 once, and may sell in a reasonable time after 
 demand ; Glanville, lib. x. c. 6 ; 5 Bligh, N. 
 s. 136; 9 Mod. 275; 2 Johns. Ch. 100; 1 
 Sandf. 351 ; 8 111. 423 ; 4 Denio, 227 ; 3 
 Tex. 119; 1 P. A. Browne, 176 ; 22 Pick. 
 40 ; 2 N. Y. 443. The jjledge must be sold 
 at public auction, and, if it be divisible, only 
 enough must be sold to pay the debt. Even a 
 sale at a brokers' board has been held im- 
 proper ; 40 Barb. 648. In general, also, the 
 pledgee must not buy the pledge when put up 
 at auction. Still, the purchase of the pledgee 
 is probably not void per se, but voidable at the 
 election of the pledgeor ; and the latter may 
 ratify the purchase by receiving the surplus 
 over the debt, or avoid it by refusing to do so. 
 The pledgee may charge the pledge with ex- 
 penses rightfully incurred, as the costs of sale, 
 etc. If the pledge when sold bond Jide does 
 not bring enough to pay the debt, the pledgee 
 has still left a good claim against the pledgeor 
 for the balance. 
 
 The pledgeor' s bankruptcy after putting the 
 
 thing in pledge will not impair the piedeee's 
 right to make sale upon default : 95 IT <! 
 764. ''• 
 
 In those states were strict foreclosure is al 
 lowed, an absolute transfer of title is made to 
 a mortgagee, and hence there is never any in- 
 quiry into the matter of surplus after sale 
 because there is no right to reclaim. But in 
 such states the mortgage law does not apply 
 to pawns ; for in pawns the surplus over the 
 amount of debt after sale must be given back 
 to the pledgeor. This last is also the law of 
 mortgages in some states ; but still, every- 
 where, pawns and mortgages of personal pro- 
 perty are separate in law. In order to autlio- 
 rize any sale of a pledge without judicial pro- 
 ceedings, not only personal notice of the in- 
 tent to redeem must be given, but also of 
 the time, place, and manner of the intended 
 sale; 12 Barb. 103; 4 Denio, 226; 14 N 
 Y. 392.' 
 
 Buying and selling through a broker on 
 deposit of a " margin" with him is held in 
 New York to create the relation of pledgeor 
 and pledgee ; so that, on the pledgeor's faU- 
 ure to keep his " margin" good, the pledgee 
 or broker cannot sell the stock, except upon 
 the pledge formalities, for repayment of his. 
 advances and commissions; 41 N". Y. 235 ; 55 
 Barb. 59; Dos Passos, Stock-brokers, U4; 
 Schoul. Bail. 211. 
 
 Negotiable paper. The law of pledge ap- 
 plies, probably, to promissory notes on de- 
 mand, held in pledge. But it does not ap- 
 ply, in general, to other promissory notes and 
 commercial paper pledged as collateral secu- 
 rity. The holder of negotiable paper, even 
 though it be accommodation paper, may pledge, 
 it for an antecedent debt, the rule governine 
 pledges not being applicable to commercial 
 property of this description ; 3 Penn. 381 ; see 
 13 Mass. 105 ; 3 Cal. 151 ; 5id. 260. Pledg- 
 ees of negotiable paper have no right to sell 
 it, but must wait until its maturity and then 
 coUect it; 25 Minn. 202; 82 111. 584; 2i 
 Gratt. 262; 16 N. Y. 392. 
 
 See, upon the law of pledges in mercantile 
 propertv, 28 N. H. 561 ; 26 Vt. 686; 13 B. 
 Monr. 432; 1 Stockt. Ch. 667; 17 Barb. 
 492 ; 5 Du. N. Y. 29 ; 14 Ala. N. s. 65 ; 
 10 Md. 373 ; IN. Y. Leg. Obs. 25; 5 Tex. 
 318. 
 
 In most states, a pledgee cannot sell his 
 pledge before default on the debt. And hence 
 any pledgee who has stock put into his hands 
 cannot sell it or operate with it as his own. 
 If he do sell it, the pledgeor can recover of 
 him the highest price the stock has reached 
 at any time previous to adjudication ; 2 Caines, 
 Cajs. 200 ; contra, i. e., up to the expiration 
 of a reasonable time to replace it in, after no- 
 tice ; 53 N. Y. 211. A pledgeor may bring 
 trover upon the sale of a pledge, or upon a 
 tortious repledging of it. 
 
 Other debts. A pledge cannot, in general, 
 be held for any other debt than that which it 
 was given to secure, except on the special 
 agreement and consent of the parties ; 7 
 
PLEDGE, PAWN 
 
 425 
 
 PLEDGEE 
 
 East, 224 ; 6 Term, 258 ; 2 Ves. 872 ; 6 id. 
 226 i 7 Port. Ala. 466 ; 15 Mass. 389 ; 2 
 Leigh, 493; 14 Barb. 636. The civil law and 
 Scotch law are otherwise ; 2 Bell, Com. 22. 
 
 Pledgeor's transfer. The pledgeor may- 
 sell or transfer his right to a third party, who 
 can bring trover against the pledgee if the lat- 
 ter, after tender of the amount of his debt, re- 
 fuse to deliver the pawn ; 9 Cow. 52 ; 13 M. 
 & W. 480. A creditor of the pledaeor can 
 only take his interest, and must pay the debt 
 before getting the pawn. And now it is set- 
 tled that the pledgeor's general property in 
 the pawn may be sold at any time on execu- 
 tion, and the purchaser or assignee of the 
 pledgeor succeeds to the pledgeor's rights, 
 and may himself redeem. At common law, a 
 pledge could not be taken at all in execution , 
 iVes. 278; 3 Watts, 258; 17 Pick. 85; 1 
 Const. 20 ; 1 Gray, 254. On an extent the 
 king takes a pawn on paying the pawnee's 
 debt ; 2 Chit. Prerog. 285. 
 
 Factor. A factor cannot, at common law, 
 pledge his principal's goods ; and the princi- 
 pal may recover them from the pledgee's 
 hands; 2 Stra. 1178; 6 Maule & S. 1 ; 3 
 Bingh. 139, 603 ; 2 Br. & B. 639 ; 4 B. & C. 
 5; 1 M'Cord, 1; 6 Mete. 68; 20 Johns. 
 421; 4 Hen. & M. 432; 18 Mo. 147, 191 ; 
 11 How. 209, 226. The question is very 
 fully discussed in Pars. Marit. Law, 363. But 
 statutes in England and in various states, as 
 Maine, Massachusetts, Rhode Island, New 
 York, Pennsylvania, Ohio, etc., give the fac- 
 tor a power of pledging, with various modifi- 
 cations; 7B.&C. 517; 6M. &W. 572; 2 
 Mood. & R. 22 ; 3 Denio, 472 ; 4 id. 323 ; 2 
 Sandf. 68. 
 
 Co-pledgees. A pledgee may hold a pledge 
 for another pledgee also, and it will be a good 
 pledge to both. If the pledge be not large 
 enough for both debts after BsQe, and no other 
 arrangement be made, the prior pledgee will 
 have the whole of his debt paid before any 
 part of the proceeds is applied to the subse- 
 quent pledgee. If there is no priority of time, 
 they will divide ratably. But an agreement 
 between the parties will always determine the 
 rights of two or more pledgees ; 12 Mass. 321. 
 Where possession is given to one of three 
 pledgees, to hold for all three, the other two 
 have a constructive possession, which is 
 ecjually good, for the purpose of sharing, 
 with an actual possession. Hence the mere 
 manual possession of one pledge will not give 
 a right to discharge the whole debt of the 
 holder and a part only of that of his co-pledg- 
 ees. ^ So, by the rule of constructive posses- 
 sion, if the holder should lose the pledge by 
 his own negligence, he would be liable to his 
 co-batlees out of actual possession, as well as 
 to his bailor. 
 
 There is a clear distinction between mortgages 
 and pledges. In a pledge, the legal title re- 
 mains in the pledgeor. In a mortgage, it passes 
 to the mortgagee. In a mortgage, the mortgagee 
 need not have possession. In a pledge, the 
 pledgee must have possession, though it be only 
 
 constructive. In a mortgage, at common law, 
 the property on non-payment of the debt passes, 
 wholly to the mortgagee. In a pledge, the pro- 
 perty is sold, and only so much of the proceeds 
 as will pay his debt passes to the pledgee. A 
 mortgage is a conditional conveyance of pro- 
 perty, which becomes absolute unless redeemed 
 at a specified time. A pledge is not strictly a 
 conveyance at all, nor need any day of redemp- 
 tion be appointed for it. A mortgagee can sell 
 and deliver the thing mortgaged, subject only to 
 the right of redemption. A pledgee cannot sell 
 and deliver his pawn until the debt is due and 
 payment denied. 
 
 The civil law pignus was our pledge, and the 
 hypotheca was our mortgage o£ chattels. In the 
 former, possession was in the bailor ; in the latter, 
 in the bailee. 
 
 Pledge and mortgage, therefore, are diverse in 
 law. Each of the following authorities recog- 
 nizes one or another of the preceding distinc- 
 tions : 3 Brown. C. C. 31 ; Yelv. 178 ; Free, in 
 Chanc. 419 ; 1 Vee. 3.58 ; 3 id. 372 ; 1 Bulstr. 39 ; 
 Comyns, Dig. Mortgage ; Ow. 123 ; 5 Johns. 260; 
 8jd. 97; 2 Pick. 607; Sid. 60; SPenn. 208, ft' 
 Mass. 425 , 33 Me. 348 ; 6 Pet. 449 ; 3 Barb. 538 ; 
 
 4 Wash. C. C. 418 ; 3 Ala. N. s. 555 ; 9 Me. 82 : 
 
 5 N. H. .545; 5 Blackf. 330 ; 3 Tex. 119 , 1 Pars. 
 Contr. 591 ; Schoul Bailm. 163 ; see Chattel 
 
 MOBTOAOE. 
 
 The distinction between mortgages and pawns 
 is often observed strictly. Hence an instrument 
 giving security upon a chattel for the future pay- 
 ment of a debt was held to be a mortgage and 
 not a pledge, because It provided for the continu- 
 ance of the possession of the debtor until pay- 
 ment, or on non-payment at the appointed day 
 authorized the creditor to take possession ; and 
 this was held although instead of the ordinary 
 terms of conveyance the words used were, " I 
 hereby pledge and give a lien on," etc.; 9 Wend. 
 80. If a pledge is given with the understanding- 
 that if the debt be not paid within the stipulated 
 time the pledgee shall have the pledge, the pledge 
 does not pass to the pledgee on non-payment, 
 unless the transaction be proved a mortgage and 
 not a pledge; 3 Tex. 119; 2 Cow. 324. These 
 decisions coincide, apparently, with the doctrines- 
 of the civil law and the French Code. 
 
 It has been seen that when no definite day- 
 is appointed the pledge may be redeemed at 
 any time. Hence, if the pledgee himself da 
 not give notice to the pledgeor to redeem, the 
 latter has his whole lifetime in which to do so ; 
 and his right of redemption .survives and goes, 
 to his representatives, 3 Mo. 316; 1 Call, 
 290. But for further discussion of pledge and 
 hypothecation see 2 Ld. Raym. 982; 1 Atk. 
 165 ; 5 C. Rob. 218 ; 2 Curt. C. C. 404; 1 
 Pars. Marit. Law, 118 ; Schoul. Bailm. 158. 
 
 In Louisiana there are two kinds of 
 pledges, — the pawn and the antichresis. The 
 former relates to movable securities, and the 
 latter to immovables. If a creditor have not 
 a right to enter on the land and reap the 
 fruits, the security is not an antichresis ; 3 
 La. 157. A pledge of negotiable paper is 
 not valid against fliird parties without trans- 
 fer from debtor to creditor; 2 La. 387. 
 See, in general, 13 Pet. 351 ; 5 Mart. La. n. 
 s. 618 ; 18 La. 543 ; 1 La. An. 340 ; 2 id. 
 872. 
 
 PLEDGrEE. He to whom a thing is 
 pledged. 
 
PLEDGEOR 
 
 426 
 
 PLURIES 
 
 FLEDGrEOR. The party -vrho makes a 
 pledge. 
 
 FLEDGES. In Pleading. Those per- 
 sons who became sureties for the plaintifi's 
 prosecution of the suit. Their names were 
 anciently appended at the foot of the declara- 
 tion. In time it became purely a formal mat- 
 ter, because the plaintiff was no longer liable 
 to be amerced for a false claim, and the ficti- 
 tious persons John Doe and Richard Roe be- 
 came the universal pledges, or they might be 
 omitted altogether ; 1 Tidd, Pr. 455 ; Archb. 
 Civ. PI. 171 ; or inserted at anytime before 
 judgment ; 4 Johns. 90 ; and are now 
 omitted. 
 
 PLEGIIS ACQUIETANDIS, WRIT 
 DE. The name of an ancient writ in the 
 English law, which lies where a man be- 
 comes 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. Pitzh. N. B. 321. 
 
 FLENA PROBATIO. In Civil Law. 
 
 A term used to signify full proof, in contra- 
 distinction to semi-plena probatio, which is 
 only a presumption. Code, 4. 19. 5. etc.; 1 
 Greenl. Ev. § 119. 
 
 FLENART7. In Ecclesiastical Law. 
 Signifies that a. benefice is full. See Avoid- 
 ance. 
 
 PLENARY. Full; complete. 
 
 In the courts of admiralty, and in the Eng- 
 lish ecclesiastical courts, causes or suits in re- 
 spect of the different course of proceedings in 
 each are termed plenary or summary. Plen- 
 ary, or full and formal, suits are those in 
 which the proceedings must be full and formal ; 
 the term summary is applied to those causes 
 where the proceedings are more succinct and 
 less formal. 2 Chitty, Pr. 481. 
 
 PLENE ADMINISTRAVIT (Lat. he 
 has fully administered). In Pleading. A 
 plea in bar entered by an executor or admin- 
 istrator, by which he affirms that he had not 
 in his possession at the time of the commence- 
 ment of the suit, nor has had any time smce, 
 any goods of the deceased to be administered ; 
 when the plaintiff replies that the defendant 
 had goods, etc. in his possession at that time, 
 and the parties join issue, the burden of the 
 proof will be on the plaintiff. See 15 Johns. 
 323; 6 Term, 10 ; 1 B. & Aid. 254; 11 
 Viner, Abr. 349; 12 id. 185; 2 Phill. Ev. 
 295 ; 3 Saund. (a) 315, n. 1 ; 6 Comyns, 
 Dig. 311. 
 
 PLENE ADMINISTRAVIT PRiE- 
 
 TER (Lat. he has fully administered except). 
 In Pleading. A plea by which a defendant 
 executor or administrator admits that there 
 is a balance remaining in his hands unadmin- 
 istered. 
 
 PLENE COMPUTAVIT (Lat. he has 
 fully accounted). In Pleading. A plea in 
 an action of account render, by which the de- 
 
 fendant avers that he has fully accounted. 
 Bacon, Abr. Accompt (E). This pleadow 
 not admit the liability of the defendant tn 
 account. 16 S. & R. 153. 
 
 PLENIPOTENTLa.RY. Possessing fuU 
 powers : as, a minister plenipotentiary S one 
 authorized fully to settle the matters con- 
 nected with his mission, subject, however to 
 the ratification of the government by which 
 he is authorized. See Minister. 
 
 PLENUM DOMINIUM (Lat.). The 
 unlimited right which the owner has to use 
 his property as he deems proper, without ac 
 countability to any one. 
 
 PLIGHT. An old English word, used 
 sometimes for the estate with the habit and 
 quality of the land. Co. Litt. 221. It ex- 
 tends to a rent-eharee and to a possibility of 
 dower. Id. ; 1 Rolle, Abr. 447 ; Littleton, 
 § 289. 
 
 PLOUGH-BOTE. An allowance made 
 to a rural tenant of wood sufficient for ploughs, 
 harrows, carts, and other instruments of hug! 
 bandry. 
 
 PLOUGH-LAND. In Old English Law. 
 An uncertain quantity of land. According to 
 some opinions, it contains one hundred and 
 twenty acres. Co. Litt. 69 a. 
 
 PLUNDER. The capture of personal 
 property on land by a public enemy, with a 
 view of making it his own. The property so 
 captured is called plunder. See Booty; 
 Prize. 
 
 PLUNDERAGE. In Maritime Law. 
 The embezzlement of goods on board of a 
 ship is known by the name of plunderage. 
 
 The rule of the maritime law in such cases 
 is that the whole crew shall be responsible for 
 the property thus embezzled, because there 
 must be some negligence in finding out the 
 depredator ; Abbott, Shipp. 457 ; 3 Johns. 
 17 ; 1 Pet. Adm. 200, 239, 243 ; 4 B. & P. 
 347. 
 
 PLURAL. A term used in grammar, 
 which signifies more than one. 
 
 Sometimes, however, it may be so used that 
 it means only one : as, if a man were to de- 
 vise to another all he was worth if he, the 
 testator, died without children, and hffdied 
 leaving one child, the devise would not take 
 effect. See Dig. 60. 16. 148 ; Shelf. Lun. 
 504, 518. 
 
 PLURALITY. The greatest number of 
 votes given for any one person. 
 
 Plurality has the meaning, as used in govern- 
 mental law, given above. Thus, if there arethree 
 candidates, for whom four hundred, three hun- 
 dred and fifty, and two hundred and fifty votes 
 are respectively given, the one receiving ioya 
 hundred has a plurality, while five hundi«o an* 
 one would be a majority of the votes cast. See 
 Majority. 
 
 PLURIES (Lat. many times.) A writ 
 issued subsequently to a first and second 
 (alias) of the same kind, which have proved 
 ineffectual. The name is given to it from the 
 
POACHING 
 
 427 
 
 POISON 
 
 word pluries in the Latin form of the writ : 
 " we command you, as we have often 
 (pluries') commanded you before, " which dis- 
 tmguishes it from those which have gone be- 
 fore. Plvries is variously translated, in the 
 modern forms of writs, by " formerly," 
 "more than once," "often." The next writ 
 to the pluries is called the second pluries ; 
 and so on. 3 Sharsw. Bla. Com. 283, App. 
 15 ; Natura Brev. 83. 
 
 POACHING. Unlawful entering land, 
 in night-time, armed, with intent to destroy 
 game. 1 Russell, Crimes, 469 ; 2 Stephen, 
 Comm. 82 ; 2 Chitty, Stat. 221-245. 
 
 POCKET SHERIFF. InEngUshLaw. 
 A sheriff appointed by sole authority of the 
 crown, not being one of the three nominated 
 by the judges in the exchequer. 1 Sharsw. 
 Bla. Com. 342*. 
 
 POINDING. In Scotch Law. That 
 diligence (process) affecting movable sub- 
 jects by which their property is carried di- 
 rectly tothe creditor. Poinding is real or 
 personal. Erskine, Inst. 3. 6. 11. 
 
 POINDING, PERSONAL. Poinding 
 of the goods belonging to the debtor, and of 
 those goods only. 
 
 It may have for its warrant either letters of 
 horning, containing a clause for poinding, and 
 then it is executed by messengers ; or pre- 
 cepts of poinding, granted by sheriffs, com- 
 missaries, etc., which are executed by their 
 proper officers. No cattle pertaining to the 
 plough, nor instrunlents of tillage, can be 
 poinded in the time of laboring or tilling the 
 ground, unless where the debtor has no other 
 goods that may be poinded. Erskine, Inst. 
 3. 6. 11. This process is somewhat similar to 
 distress. 
 
 POINDING, REAL. Poinding of the 
 Ground. Though it be properly a dili- 
 gence, this is generally considered by lawyers 
 as a species of real action, and is so called to 
 distinguish it from personal poinding, which is 
 founded merely on an obligation to pay. 
 
 Every dehitum fundi, whether legal or 
 conventional, is a foundation for this action. 
 It is, therefore, competent tO/ all creditors in 
 debts which make a real burden on lands. 
 ^ As. it "proceeds on a real right, it may be di- 
 rected against all goods that can be found on 
 the lands burdened ; but goods brought upon 
 the ground by strangers are not subject to 
 this diligence. Even the goods of a tenant 
 cannot be poinded for more than his term's 
 rent. Erskine, Inst. 4. 1. 3. 
 
 POINT. In Practice. 
 
 question arising in a case. 
 
 It is the duty of a judge to give an opinion 
 on every point of law properly arising out 
 of the issue which is propounded to him. 
 
 POINT RESERVED. A point or ques- 
 tion of law which the court, not being fully 
 satisfied how to decide, in the hurried trial of 
 
 A proposition or 
 
 new trial. If, after argument, it be found to 
 have been ruled correctly, the verdict is sup- 
 ported ; if otherwise, it is set aside. 
 
 POINTS. Marks in writing and in print, 
 to denote the stops that ought to be made in 
 reading, and to point out the sense. 
 
 Points are not usually put in legislative acts 
 or in deeds ; Eunom. Dial. 2, § 33, p. 239 ; 
 yet, in construing such acts or instruments, 
 the courts must read them with such stops as 
 will give effect to the whole; 4 Term, 65. 
 
 The points are — the comma, the semicolon, 
 the colon, the full point, the point of interro- 
 gation, and the pomt of exclamation. Bar- 
 rington, Stat. 294, u. See Punctuation. 
 
 POISON. In Medical Jurisprudence. 
 
 A substance having an inherent deleterious 
 property which renders it, when taken into 
 the system, capable of destroying life. Whart. 
 & St. Med. Jur. § 493 ; Tayl. Poisons. 
 
 The history of poisoning, and many remarka- 
 ble early instances of a wide-spread use of poisons, 
 are recorded in works on medical jurisprudence. 
 See these, and also, especially, Taylor, Poisons ; 
 Archbold, Crim. Pract. Waterman's ed. 940 ; 
 Wharton & StiUe, Med. Jur. ; 1 Beekman, Hist. 
 Jur; 74 et seq. The classification proposed by 
 Mr. Taylor is as follows : — 
 
 r Acids, Al- 
 ( NoN- J kalies and 
 
 Mineral < Metallic 1 their Salts. 
 ( L Metalloids. 
 
 IBKITANTS. ^ Metallic (Arsenic), 
 
 Vegetable (Savin). 
 
 Animal (Cantharide$). 
 
 Cerrbral (Morphia). 
 
 Spinal (Strychnia). 
 
 CsBBsiiO-STiiiii.(Conia,Aconitina). 
 
 NARCOTICS. 
 GASEOUS. 
 
 Irritant poisons, when taken in ordinary doses, 
 occasion speedily violent vomiting and purging, 
 preceded, accompanied, or followed by intense 
 pain in the abdomen, commencing in the region 
 of the stomach. The corrosive poisons, as dis- 
 tinguished from those in a more limited sense 
 termed irritant, generally produce their result 
 more speedily, and give chemical indications ; 
 but every corrosive poison acts as an irritant in 
 the sense here adopted. 
 
 Mareotic poisons act chiefly on the brain or 
 spinal marrow. Either immediately or some 
 time after the poison has beeii swallowed, the 
 patient suffers from headache, giddiness, paraly- 
 sis, stupor, delirium, insensibility, and, in some 
 Instances, convulsions. 
 
 The effects of one class are, however, sometimes 
 produced by the other, — more commonly as sec- 
 ondary, but sometimes even as primary symp- 
 toms. 
 
 The evidence of poisoning as derived from 
 symptoms is to be looked for chiefly in the sud- 
 denness of their occurrence / this is perhaps the 
 most reliable of all evidence derived from symp- 
 toms in cases of criminal poisoning ; see Taylor, 
 Pois. 107; Christison, Pois. 42 ; though none of 
 this class of evidence can be considered as fur- 
 nishing any thing better than a high degree of 
 probability : the regularity of their increase ; this 
 feature is not universal, and exists in many dis- 
 eases ; uniformity in their nature ; this is true in 
 the case of comparatively few poisons ; tlie symp- 
 toms begin soon after a meal ; but sleep, the man- 
 ner of administration, or certain diseases, may 
 a ou„<,o _.,!„ ■ i- ' J- .ii_ J. a- ■ affect this rule in the case of some poisons ; 
 
 a cause, rules m favor of the party offering y,J^^ several partake at the same time of tlie same 
 It, but subjec'; to revision on a motion tor a \ poisoned food, all sm^er from similar symptoms ; 
 
POLE 
 
 428 
 
 POLICE POWER 
 
 2 Park. C. C. 335 ; Taylor, Pole. 118 ; the symp- 
 toms first appearing while the body is in a state of 
 perfect heal(h ; Archb. Cr. PI. Waterman ed. 948. 
 
 Appearances which present themselves on post- 
 mortem examinations are of Importance In regard 
 to some classes of Irritant poisons ; see The Her- 
 sey Case, Mass. 1861 ; Palmer's case, Taylor, 
 Poisons, 697 ; 17 Am. L. Rep;. N. B. 145 ; but 
 many poisons leave no traces which can be so 
 discovered. 
 
 Chemical analysis often results in important 
 evidence, by discovering the presence of poison, 
 which must then be accounted for ; but a failure 
 to detect it by no means proves that it has not 
 been given. Christison, Poisons, 61, 62. 
 
 The evidence derived from dreumstanxes differs 
 in nothing in principle from that in case of com- 
 mission of other crimes. 
 
 Homicide by poisoning is, of course, gen- 
 erally either accidental, so as not to amount to 
 murder, or deliberate : yet it has been held 
 that there may be a verdict of murder in the 
 second degree under an indictment for poison- 
 ing; 19 Conn. 388. The doctrine of princi- 
 pal and accessory is also modified to some ex- 
 tent in its application to cases of poisoning ; 2 
 Mood. Cr. Cas. 120 ; 9 C. & P. 356 ; 9 Co. 
 81 . To constitute an administering of poison, 
 it is not necessary that there should be a de- 
 livery by hand; 4 C. & P. 356 ; 6 id. 161 ; 
 1 Bish. Cr. L. § 651. 
 
 Intent to kill need not be specifically alleged 
 in an indictment for murder by poison ; 2 
 Stark. Cr. PI. prec. 18 ; 1 East, PI. Cr. 346; 
 
 3 Cox, C. C. 300 ; 8 C. & P. 418 ; 2 Allen, 
 173. 
 
 Many of the states have statutes inflicting 
 severe penalties upon the administering of poi- 
 sons with a malifcious intent ; see Archb. Cr. 
 Pr. "Waterman's ed. 942 ; 3 N. Y. Rev. Stat. 
 5th ed. 941, 944, 969, 975 ; Mich. Rev. Stat. 
 c. 153, § 13 ; Mass. Gen. Stat. c. 160, § 32 ; 
 Vt. Rev. Stat. 543; Wise. Rev. Stat. c. 133, 
 § 44, c. 144, § 39 ; Iowa Code, § 2728 ; N. J. 
 Rev. Stat. 268 ; Ohio Stat. 1854 ed. c. 33, § 
 34. 
 
 Consult Christison, Taylor, on Poisons ; 
 Beck, Taylor, Wharton & Still6, Med. Jur. ; 
 Archbold, Crim. Pract. Waterman's ed. ; 
 Russell, Crimes ; Wharton, Homicide. 
 
 FOLE. A measure of length, equal to 
 five yards and a half. See Measure. 
 
 FOIiICE. That species of superintend- 
 ence by magistrates which has principally for 
 its object the maintenance of public tran- 
 quillity among the citizens. The ofiicers who 
 are apjjointed for this purpose are also called 
 the police. See 9 Cent. L. J. 353. 
 
 The word police has three significations. The 
 first relates to the measures which are adopted to 
 keep order, the laws and ordinances on cleanli- 
 ness, health, the markets, etc. 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 execu- 
 tion and delivered over to the justice of the 
 country. The third comprehends the laws, ordi- 
 nances, and other measures which require the 
 citizens to exercise their rights in a particular 
 form. 
 
 Police has also been divided into odminj«ro«„r 
 polMc, which has for its object to maintain Z 
 stantly public order in every part of the eenerai 
 administration ; andji«Zic»or^po;fce,whiclilsin 
 tended principally to prevent crimes by Duntah 
 ing the criminals. Its object is to puuishciImM 
 which the administrative police has not h^Z 
 able to prevent. "" 
 
 POLICE JURY. In Louisiana. A 
 name given to certain officers who collectively 
 exercise jurisdiction in certain cases of police • 
 as, levying taxes, regulating roads, etc. 
 
 POLICE POWER. The authority to 
 establish, for the intercourse of the several 
 members of the body politic with each other 
 those rules of good conduct and good neigh! 
 borhood which are calculated to prevent a 
 conflict of rights and to insure to each the un- 
 interrupted enjoyment of his own, so faras i» 
 reasonably consistent with a corresponding 
 enjoyment by others, is usually spoken of as 
 the authority or power of police. This is a 
 most comprehensive branch of sovereignty 
 extending as it does to every person, every pub- 
 lic and private right, everything in the nature 
 of property, every relation in the state, in so- 
 ciety and in private life. Cooley, Const. 227. 
 See also, Cooley, Const. Lim. 572 ; 4 Bla. 
 Com. 162. 
 
 All jjroperty is held subject to those general 
 regulations which are necessary to the com- 
 mon good and general welfare. Eights of 
 property, like all other social and conventional 
 rights, are subject to such reasonable limita- 
 tions in their enjoyment as shall prevent them 
 from being injurious, and to such reasonable 
 restraints and regulations established by law 
 as the legislature, under the governing and 
 controlling power vested in them by the 
 constitution, may think necessary and expefr 
 ent. This is very different from the right of 
 eminent domain, the right of a government to 
 take and appropriate private property when- 
 ever the public exigency requires it, which 
 can be done only on condition of providing a 
 reasonable compensation therefor. The power 
 we allude to is rather the police power; the 
 power vested in the legislature to make, or- 
 dain, and establish all manner of wholesomis 
 and reasonable laws, statutes, and ordinances^ 
 either with penalties or without, not repugnant 
 to the constitution, as they shall judge to be 
 for the good and welfare of the commonwealth, 
 and of the subjects of the same. It is much 
 easier to perceive and realize the existence 
 and sources of this power than to mark its 
 boundaries or prescribe limits to its existence. 
 Per Shaw, C. J., in 7 Cush. 84. See, also, 
 25 Barb. 370; 3 Bush, 597; 5 How. 683; 
 94 U. S. 113; 81 Penn. 80. 
 
 The exercise of this power has be»n left 
 with the individual states ; 11 Bush, 311 ; 
 and cannot be taken from them and exercised, 
 wholly or in part, under legislation in congress; 
 Cooley, Const. Lim. 715; 9 Wall. 41; see, 
 92 U. S. 214, 542. But a state cannot, by 
 police regulation, interfere with the control by 
 
 congress over inter-state commerce 
 
 95 U. S. 
 
POLICE POWER 
 
 429 
 
 POLICE POWER 
 
 465 ; id. 485. All that the federal authority 
 can do is to see that the states do not, under 
 cover of this power, invade the sphere of na- 
 tional sovereignty, obstruct or impede the ex- 
 ercise of any power which the constitution has 
 ■confided to the nation, or deprive any citizen 
 of rights guaranteed by the federal constitu- 
 tion; Cooley, Const. Lim. 715; see 16 Wall. 
 56 ; 7 How. 283. 
 
 The power to establish police regulations 
 may be conferred by the state upon municipal 
 <!orporations ; Cooley, Const. Lim. 148. 
 
 The rights insured to private corporations 
 by their charters, and the manner of their ex- 
 ercise, are subject to such new regulations as 
 from time to time may be made by the state 
 with a view to the public protection, health, 
 and safety, and in order to guard properly the 
 rights of other individuals and corporations ; 
 but these regulations must not conflict with 
 the charter, nor take from the corporation any 
 of its essential rights and privileges ; Cooley, 
 Const. Lira. 718, citing 61 Mo. 24 ; 18 Conn. 
 53 ; 35 Wise. 425. Thus a municipal corpo- 
 ration may regulate the speed of railway trains 
 within its limits ; 67 111. 113 ; 79 Penn. 33 
 (but only in the streets and public grounds of 
 the municipality ; 29 N. J. 170) ; a railroad 
 ■company may be required to fence its tracks ; 
 27 Vt. 156 ; a state may regulate the grade 
 •of railways and may prescribe how railways 
 may cross each other, and apportion the ex- 
 pense of making the necessary crossings be- 
 -tween the corporations owning the roads ; 77 
 Penn. 173 ; 4 Allen, 198 ; and it may regulate 
 the speed of trains at highway and other 
 ■crossings ; 72 111. 235 ; and establish regular 
 tions requiring railway companies to cause a 
 bell to be rung or a whistle blown (67 Ind. 45) 
 on locomotives before crossing highways at 
 grade, and to station flagmen at dangerous 
 crossings ; 67 111. 37 ; Cooley, Const. Lim. 
 724 ; and a statute imposing a penalty on 
 Tailroad conductors for failing to cause their 
 trains to stop five minutes at every station is 
 ■constitutional ; 4 Tex. App. 545 ; s. c. 30 
 Am. Rep. 166 ; and so is a statute directing 
 the printing upon railroad tickets of any con- 
 dition limiting the liability of the railroad 
 •company, in type of a specified size, and pro- 
 viding for the redemption by the company of 
 tickets sold but not used ; 63 Ind. 552 ; s. C. 
 30 Am. Rep. 238. 
 
 Prohibitory liquor laws have been sustained 
 as police regulations established by the legis- 
 lature for the prevention of intemperance, 
 pauperism, and crime ; Cooley, Const. Lim. 
 727, citing 13 Gray, 26 ; 4 Mich. 244 ; 26 
 Conn. 179 ; even where a statute has provided 
 legal process for the condemnation and de- 
 struction of liquor and the seizure and con- 
 demnation of the building in which the liquor 
 is sold ; 4 Green, Iowa, 172. The dealing in 
 liquors even for lawful purpose may be con- 
 fined to persons of approved moral character; 
 32 Iowa, 250. 
 
 Quarantine regulations and health laws of 
 •every description are within the police power 
 
 of the state, even when they go to the extent 
 of providing for the destruction of private 
 property when infected with disease ; Cooley, 
 Const. Lim. 729 ; • see 5 How. 632 ; 15 
 Wend. 897. For other exercises of this 
 power, see Commerce. 
 
 A state law which grants to a corporation 
 of that state the exclusive right for a term of 
 years to control the slaughtering of cattle in 
 and near one of its cities, and requires that 
 all cattle and other animals intended for sale 
 and slaughter in that district shall be brought 
 to the yards and slaughter houses of the cor- 
 poration, and authorizes the corporation to 
 charge certain fees for the use of its yards, 
 and for each animal landed or slaughtered, is 
 constitutional, as coming within the police 
 power of the state; 16 Wall. 36. 
 
 Proper regulations for the use of public 
 highways and for their alteration are within 
 the police power ; Cooley, Const. Lim. 734 ; 
 so is a law prohibiting beasts from running at 
 large, under a penalty of being seized and 
 sold ; 30 111. 459 ; 4 Iowa, 296 ; and a law 
 requiring the owners of urban property to 
 construct and keep in repair sidewalks in 
 front of it; 8 Mich. 309; 19 Ohio, 418; 4 
 R. I. 230, 445; 36 Barb. 226; 16 Pick. 
 504. 
 
 The general right to control and regulate 
 the public use of navigable waters is unques- 
 tionably in the state, subject to the power of 
 congress to regulate commerce with foreign 
 nations and between the states ; Cooley, 
 Const. Lim. 737. 
 
 Laws compelling the owners of large un- 
 productive tracts of land, which are sources 
 of danger to health, to drain them, are also 
 within the police power ; 12 Rich. 702. A 
 state law prescribing the maximum charges of 
 a warehouse company is constitutional ; 69 
 111. 80; 94 U. S. 113. 
 
 Regulations providing for the destruction 
 of private property to prevent the spread 
 of a fire, etc.; forbidding the erection of 
 wooden buildings within the built-up parts of 
 a city; 11 Mich. 425; 7 Cow. 352; and es- 
 tablishing wharf lines ; 7 Cush. 53 ; are with- 
 in the police power ; Cooley, Const. Lim. 
 746. Cemeteries within the built-up parts of 
 a city may be closed against further use ; 5 
 Cow. 538; 66 Penn. 411 ; s. c. 5 Am. Rep. 
 377. The keeping of gunpowder in cities or 
 villages ; 1 Gray, 27 ; the sale of poisonous 
 drugs, unless labelled ; allowing unmuzzled 
 dogs to run at large ; and the keeping for sale 
 of unwholesome provisions ; and carrying on 
 offensive manufactures; 47 Barb. 64; are 
 all subject to be forbidden under the police 
 power ; Cooley, Const. Lim. 748. But a law 
 prohibiting the bringing of Texas cattle into 
 a state, has been held to conflict with the 
 power of congress to regulate commerce ; 95 
 U. S. 585. 
 
 Regulations tending to preserve public 
 morals, for instance, by forbidding the sale of 
 indecent books, are within the power of a 
 state ; see 8 Gray, 488; 38 N. H. 426. The 
 
POLICIES OF INSURANCE 480 
 
 POLICY 
 
 keeping of swine within the thickly popu- 
 lated portions of a city; 97 Mass. 221 ; or of 
 a slaughterhouse; 109 Mass. 315; or carry- 
 ing on any other business injurious to the pub- 
 lic ; 85 Wise. 298 ; may be prohibited. 
 Markets may be regulated ; weights and mea- 
 sures established; 18 Iowa, 210; 36 Barb. 
 392 ; and certain persons, such as auctioneers 
 etc., may be required to take out licenses and 
 conform to such rules and regulations as are 
 deemed important for the public convenience 
 and protection ; 38 Wise. 428 ; 8. c. 20 Am. 
 Eep. 12; Dill. Mun. Corp. §§ 291-296. 
 Laws may be passed regulating the hours of 
 labor of women and children in factories; 
 120 Mass. 383. 
 
 "Whether the prohibited act or omission 
 shall be made a criminal offence, punishable 
 under the general laws, or subject to punish- 
 ment under municipal by-laws, or, on the 
 other hand, the party be deprived of all 
 remedy for any right which, but for the reg- 
 ulation, he might have had against other 
 persons, are questions which the legislature 
 must decide." Cooley, Const. Lim. 750. 
 
 Other cases may be added. A statute ex- 
 empting one dog to each family and taxing all 
 others at a fixed rate is constitutional ; 3 Tex. 
 App. 489 ; S. C. 30 Am. Rep. 152 ; a state 
 may provide by contract that certain persons 
 shall have exclusive privileges — as that to 
 supply the coiumon schools of the state with 
 text-books of a specified character and price ; 
 6 Sawy. 502. 
 
 This subject is treated with great learning 
 and fulness by Judge Cooley in his admirable 
 and learned work on Constitutional Limita- 
 tion. See, also, Cooley's Constitutional Law, 
 and an article by Mr. Wade in 6 So. L. Rev. 
 N. 8. 59. 
 
 POLICIES OF INSURANCE, 
 COURT OF. A court established in pursu- 
 ance of the statutes 43 Eliz. c. 12, and 13 & 
 14 Car. U. c. 23. Composed of the judge of 
 the admiralty, the recorder of London, two 
 doctors of the civil law, two common lawyers, 
 and eight merchants ; any three of whom, 
 one being a civilian or a barrister, could deter- 
 mine in a summary way causes concerning 
 policies of assurance in London, with an ap- 
 peal to chancery. No longer in existence. 3 
 Bla. Com. 74. 
 
 POLICY. In Insurance. The instru- 
 ment whereby insurance is made by an un- 
 derwriter in favor of an assured, expressed, 
 implied, or intended, against some risk, peril, 
 or contingency in reference to some subject. 
 It is usually either marine, or against fire, or 
 on a life. 
 
 It must show expressly, or by Implication, in 
 whose favor it is made. It may be upon a valu- 
 able property, interest, or contingency, or be a 
 gaming or wagering policy on a subject in 
 which the assured has no interest, or against 
 risks in respect to which the assured has no in- 
 terest except what arises from the contract Itself. 
 A wagering policy is valid or not, according as a 
 wager is or is not recognized as a valid contract 
 by the lex loci. 
 
 An interegt policy is one where the insured 
 has a real, substantial, assignable interest in 
 the thing insured. 
 
 An open policy is one on which the value 
 is to be proved by the assured. 1 PhiU t„, 
 §§4, 6, 7, 27, 439,, 948, 1178. By an ''"open 
 policy" 18 also sometimes, meant, in the 
 United States, one in which an aggregate 
 amount is expressed in the body of the policy 
 and the specific amounts and subjects are to 
 be indorsed from time to time ; 12 La An 
 259 ; 19 N. Y. 305; 6 Gray, 214. ' ' 
 
 A valued policy is one where a value has 
 been set on the ships or goods insured, and 
 this value inserted in the policy in the nature 
 of liquidated damages. In such a policy the 
 value of the subject is expressly agreed, oris 
 as between the parties, the amount insured! 
 Under an open policy, in case of loss, the in^ 
 sured must prove the true value of the pro^ 
 perty, while under a valued policy, the sum 
 agreed upon is conclusive, except in case of 
 fraud : 3 Camp. 31 9 ; 15 Mass. 341 ; 48Penn 
 372; May, Ins. § 30. 
 
 A wager policy is a pretended insurance, 
 founded on an ideal risk, where the insured 
 has no interest in the thing insured, and can 
 therefore sustain no loss by the happening 
 of any of the misfortunes insured against. 
 These policies are strongly reprobated; 3 
 Kent, 225. 
 
 Records and documents expressly referred 
 to in the policy are in effect, for the purpose 
 of the reference, a part of the contract ; 22 
 Conn. 235; 37 Me. 137; 20 Barb. 468; 23 
 Penn. 50 ; 23 E. L. & E. 614 ; S3 N. H. 203 ; 
 10 Cush. 337; 70 N. Y. 72; May, Ins. § 
 158. A policy may take effect on actual or 
 constructive delivery ; 1 PhiU. Ins. ch. xi. 
 sect, i.; 25 Ind. 537; 27 Penn. 268; 42 Me. 
 259 ; 25 Conn. 207 ; 5 Gray, 52 ; and may. 
 be retrospective, provided there is no conceal- 
 ment or misrepresentation by either party; 
 Phill. Ins. § 925 ; 2 Dutch. 268; 8. c. 3 id. 
 645. 
 
 Every policy, whether marine, against fire, 
 or on life, specifies or imports parties, and 
 specifies the subject or interest intended to be 
 insured, the premium or other consideration, 
 the amount insured, the risks and perils for 
 which indemnity is stipulated, and the period 
 of the risk or the terminus o quo and ad 
 quern. The subject-matter is usually more 
 minutely described in a separate paper- 
 called an application. May, Ins. § '29. 
 
 The duration of the risk, under a marine 
 insurance or one on inland navigationj is 
 either from one geographical terminus to an- 
 other, called a " Voyage Policy,'' or from a 
 specified time, called a " Time Policy;" that 
 of a fire-policy is for a specified time ; one on 
 life is either for life or a term of years, 
 months, etc. It is a leading principle, as to 
 the construction of a policy of insurance, that 
 its distinguishing character as a contract of in- 
 demnity IS to be favored ; which is in con- 
 formity with the common maxim, u« res vam 
 magis quam pereat; 8 N. Y. 351; 18 w- 
 
POLITICAL 
 
 431 
 
 PONE 
 
 885 ; 8 Gush. 398 ;] id. 356 ; 17 Penn. 253 ; 
 23 id. 262; 32i id. 381 ; 29 E. L. & E. Ill, 
 215 ; 33 id. 514 ; 2 Du. N. Y. 419, 554 ; 5 
 id. 517, 594; 14 Barb. 383; 20 id. 635; 16 
 Mo. 98 ; 22 id. 82 ; 22 Conn. 235 ; 13 B. 
 Monr. 311; 16 id. 242; 3 Ind. 23; 11 id. 
 171 ; 28 N. H. 234; 29 id. 182 ; 2 Curt. C. 
 C. 322, 610 ; 37 Me. 137 ; 4 Zabr.,447 ; 18 
 m. 653 ; 4 R. I. 159; 5 id. 426;' see May, 
 Ins. § 7 ; 94 U. S. 457. 
 
 In marine insurance the contract has neces- 
 sarily more implied reference to customs and 
 usages than most other contracts ; or, in other 
 -words, a larger proportion of the stipulations 
 are not specifically expressed in the instru- 
 ment; 1 Phill. Ins. § 119; whence it has 
 been thought to be an imperfect, obscure, con- 
 fused instrument ; 1 Phill. Ins. § 6, u. 3 ; 1 
 East, 579; 5 Cra. 342; 1 Burr. 347. 
 But the difficulty in giving it a practical 
 construction seems to arise more from the 
 complication of the circumstances necessarily 
 involved than from any remediable defects in 
 its provisions and phraseology. New provi- 
 sions are, hovrever, needed, from time to 
 time, to adapt the contract to new circum- 
 stances. A mistake in filling up a policy may 
 be corrected by order of a court of equity ; 
 ,5B. &P. 322; 1 Wash. C. C. 415; 1 Ves. 
 Sen. 317, 456; 2 Cra. 441 ; 2 Johns. 330 ; 1 
 Ark. 545; 1 Paige, Ch. 278; 2 Curt. C. C. 
 277. A marine policy is assignable without 
 the consent of the insurers ; May, Ins. § 377 ; 
 while a fire policy is not; 16 Wend. 385 ; 2 
 Pet. 25 ; 4 Bro. P. C. 431 ; 18 Iowa, 319 ; 
 9L. T. N. s. 688; 4 Term, 340. The bet- 
 ter opinion seems to be that an out-standing 
 and valid life policy is assignable without the 
 insurer's consent, provided the sale is bona 
 fide and not a device to evade the law; 17 
 Am. L. Keg. n. s. 83 ; 13 N. Y. 31 ; 29 
 Ind. 236 ; 98 Mass. 381 ; 26 Penn. 189 ; but 
 see, eontra, 41 Ind. 116. 
 
 See AsANDONMESfT ; Average ; Insur- 
 able Interest ; Insurance • Salvage ; 
 Loss ; Total Loss. 
 
 POLITICAL. Pertaining to policy, or 
 the administration of the government. Politi- 
 cal rights are those which may be exercised 
 in the formation and administration of the 
 government: they are distinguished from 
 civil rights, which are the rights which a man 
 enjoys as regards other individuals, and not 
 in relation to the government. A political 
 corporation is one which has principally for 
 its object the administration of the govern- 
 ment, or to which the powers of government, 
 or a part of such powers, have been delegated. 
 1 Bouvier, Inst. nn. 182, 197, 198. 
 
 POLL. A head. Hence poll-tax is the 
 name of a tax imposed upon the people at so 
 much a head. 
 
 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, ac- 
 cording to the practice in some states. See 
 
 3 Cow. 23 ; 18 Johns. 188 ; 1 111. 109 ; 7 id. 
 342 ; 9 id. 336. In some states it lies in the 
 discretion of the judge ; tM'Cord, 24, 525; 
 22 Ga. 431. 
 
 In Conveyancing. A deed-poll, or single 
 deed, is one made by a single party, whose 
 edges are polled, or shaved even, in distinction 
 from an indenture,- whose sides are indented, 
 and which is executed by more than one 
 party. 2 Bla. Com. 296. See Deed Poll. 
 
 POLL-TAX. A capitation tax ; a tax 
 assessed on every head, i. e. on every male 
 of a certain age, etc., according to statute. 
 Mass. Gen. Stat. 74, 75 ; Webster, Diet.; 
 Wharton, Diet. 2d Lond. ed. 
 
 POLLICITATION. In ClvU Law. An 
 
 offier not yet accepted by the person to whom 
 it is made. Langd. Contr. § 1. 
 
 It difiFere from aiiontract, inasmuch as the latter 
 Includes a concurrence of intention in two par- 
 ties, one of whom promises something to the 
 other, who accepts, on his part, of such promise. 
 Grotius, 1. a, c. 2 : Pothier, Obi. pt. 1, c. 1, s. 1, 
 art. 1, § 2. 
 
 POLLS. The place where electors cast 
 in their votes. 
 
 POLYANDRY. The state of a woman 
 who has several husbands. 
 
 Polyandry is legalized only in Thibet. It 
 is inconsistent with the law of nature. See 
 Law of Nature. 
 
 POLYGAMY. The act or state of a 
 person who, knowing that he has two or more 
 wives, or that she has two or more husbands, 
 marries another. 
 
 It differs from bigamy, which see. Comyns, 
 Dig. Justices (S 5) ; Diet, de Jur.; Co. 3d Inst. 88. 
 
 But bigamy Is now commonly used even where 
 polygamy would be strictly correct ; 1 Rubs. Cr. 
 186, n. On the other hand, polygamy is used 
 where bigamy would be strictly correct ; Mass. 
 Gen. Stat. 1860, p. 817. 
 
 Every person having a husband or wife living, 
 who marries another, whether married or single, 
 in a territory or other place over which the United 
 States has exclusive jurisdiction, is guilty of big- 
 amy , and shall be punished by a fine of not more 
 than five hundred dollars, and by imprisonment 
 for a term of not more than five years : K. S. § 
 5352 ; 103 U. S. 304. 
 
 POLYGARCHY. A term used to ex- 
 press a government which is shared by several 
 persons ; as, when two brothers succeed to 
 the throne and reign jointly. 
 
 POND. A body of Stagnant water ; a 
 pool. But see Call. Sew. 103. 
 
 Any one has a right to erect a fish-pond ; 
 the fish in it are considered as real estate, and 
 pass to the heir, and not to the executor. O w. 
 20. Where land bounding on a lake or pond 
 is conveyed, the grant extends only to the 
 water's edge if it is a natural pond (some 
 cases say to low- water mark; 13 Pick. 261); 
 but to the middle of the stream if it is artifi- 
 cial ; Ang. Water Courses, § 41 ; see 3 
 Washb. K. P. 416. 
 
 PONE. (Lat. ponere, to put). In Eng- 
 lish Practice. An original writ issuing out 
 of chancery, for the purpose of removing a 
 
PONENDIS IN ASSISIS 
 
 432 
 
 POOR DEBTORS 
 
 plaint from an inferior court into the superior 
 courts at Westminster. The word sij^nifies 
 " put : " put by gages, etc. The writ is called 
 from the words it contained when in Latin, 
 Pone per vadium et salvos plegios, etc.: put 
 by gage and safe pledges, etc. See Fitzh. 
 N. B. 69, 70 a ; Wilkinson, Repl. Index. _ 
 
 The writ of certiorari is now used in its 
 place. 
 
 PONENDIS IN ASSISIS. An old 
 writ directing a sheriff to empanel a jury 
 for an assize or real action. Moz. & W. 
 Law Die. ; Whart. Law Lex. 
 
 PONENDTTM IN BALLITTM. A writ 
 commanding that a prisoner be bailed incases 
 bailable; Whart. Law Lex.; Moz. & W. 
 Law Die. 
 
 PONENDUM SIGIIiLUM. A writ 
 requiring justices to put their seals to excep- 
 tions, according to Stat. West. 2, IS Ed. I. 
 c. 31 ; Whart. Law Lex. ; Moz. & W. Law 
 Die. 
 
 PONERB (Lat.). To put. The word is 
 used in the old law in various connections, in 
 all of whieh it can be translated by the 
 English verb " put." See Glanville, lib. 2, 
 c. 3. 
 
 PONIT SE (Lat. puts himself). In Eng- 
 lish Criminal Practice. When the defen- 
 dant pleads " not guilty," his plea is recorded 
 by the officer of the court, either by writing 
 the words " po. se," an abbreviation of the 
 words ponit se super patriam (puts himself 
 upon his country), or, as at the central crimi- 
 nal court, non cul. 2 Den. C. C. 392. See 
 Arraignment. 
 
 PONTAGE. A contribution towards the 
 maintenance, rebuilding, or repairs of a 
 bridge. The toll taken for this purpose also 
 bears this name. Obsolete. Meta, lib. 4, 
 c. 1, § 16. 
 
 PONTIBUS REPARANDIS. An old 
 
 writ directed to the sheriff commanding him 
 to charge one or more to repair a bridge. 
 Cow. Inst.; Reg. Orig. fol. 153. 
 
 POOL. A small lake of standing water. 
 
 By the grant of a pool, it is said, both the 
 land and water will pass ; Co. Litt. 5. Un- 
 doubtedly the right to fish, and probably the 
 right to use hydraulic works, will be acquired 
 by such grant; 2 N. H. 259; Co. Litt. 5; 
 Bacon, Abr. Grants (H 3) ; Comyns, Dig. 
 Grant (^5) \ 5 Cow. 216; Cro. Jac. 150; 
 1 Lev. 44 ; PI. 161 ; Vaugh. 103. 
 
 POOR DEBTORS. By the constitutions 
 of the several states and territories, or by the 
 laws which exist for the relief of poor debt- 
 ors, it is provided in general terms that there 
 shall be no imprisonment for debt. But this 
 is usually qualified by provisions for the arrest 
 of debtors in certain enumerated cases of 
 fraud. The statutes in the different states 
 are very similar, and as a rule, require the 
 creditor to make affidavit that the debtor is 
 about to remove some of his property out of 
 the jurisdiction of the court with intent to de- 
 
 fraud his creditors, or that, for the same fe». 
 son, he is about to or has disposed of his pro." 
 perty, or that he is fraudulently concealine it- 
 er that the debt, concerning which suit ii 
 brought, was fraudulently contracted. Such 
 in general is the law in the following states 
 and territories : — 
 
 Alabama, Const, art. 1, § 21 ; Arizona, 
 Bill of Rights, § 18, and Comp. Laws ss 
 2508-9; Arkansas, Const, art. 1, s'lf 
 California, Codes & Stats. §10479; Dakota 
 Rev. Code, p. 536, § 149 ; Florida, Ded' 
 Rights, § 13 ; Idaho, 2 Sess. L. p. 93 ; lui 
 mis, Const, art. ii. § 12; Indiana, Rev 
 Stats. 1876, pp. 636-637; Iowa, Const, art! 
 1, § 19 ; Kansas, Comp. Laws, §§ 3676-6 • 
 Kentucky, Code, Pr. tit. 8, ch. 1 ; Maine 
 Rev. Stats, p. 792, § 2 ; Massachusetts, Gen! 
 Stats. 1 24, § 5 ; Michigan, Comp. Laws, § 
 7177 ; Nebraska, Rev. Stats, p. 417,§ 418; 
 Nevada, Const, art. 1, ? 14 ; New Hmj. 
 shire. Gen. Laws, 522-3 ; New Jersey, Rev. 
 Stats. (1877) p. 857, § 58; North Caro- 
 Una, Const, art. 1, § 16 ; Ohio, Kev. Stats. 
 §§ 5491-2-3 ; Oregon, Const, art. 1, No. 
 19; Pennsylvania, Pur. Dig. p. 49, §§ 51-53 ; 
 Rhode Island, Gen. Stats, ch. 195; South 
 Carolina, Civil C. Proced. § 119; Utah, 
 Comp. Laws, 582, § 75; Vermont, Rev. 
 Laws, 1476-1491 ; Virginia, Code, pp. 
 1016-1017; Washington, Qsa. Stats. 1877, 
 §116; West Virginia, Code, ch. 106, §37; 
 Wisconsin, Rev. Stats, ch. 1 22, § 2689. 
 
 It may be stated generally, that the object 
 of such statutes as exist in the states above 
 mentioned is to induce the defendant to pay 
 the debt, give security, or take advantage o( 
 the insolvent laws or of some enactments 
 made especially for the relief of poor debtors. 
 It follows therefore that in most of the states 
 a person under arrest for debt may obtain his 
 release in any of these ways. A poor debtor 
 is of course usually compelled to resort to oneof 
 the two last mentioned, and, although the pro- 
 ceedings differ in the different states, yet as a 
 rule he is released upon delivering his property 
 to a trustee or taking oath that he has not 
 more than ten or twenty dollars above the 
 amount exempted by statute in the particuhii 
 state in which he is confined ; Rev. Stat. Illi- 
 nois (1880), p. 601, §§ 1-35; Kev. Stat. 
 Maine, p. 793, § 6 ; Public Stats. Massachtt- 
 setts, p. 892, § 82 ; Genl. Laws New Hamp- 
 shire, ch. 241 ; Rev. Stats. Neie Jersey, p. 
 497; Genl. Laws Oregon, pp. 627-628; 
 Pennsylvania, Pur. Dig. p. 52, §62; Kev. 
 Stats. South Carolina, p. 690, §§9-35; Eev. 
 Laws Vermont, §§ 1514-1528 ; Code of Vir- 
 ginia, p. 1017 ; Rev. Stats. Wisconsin, §§ 
 4307-4320. 
 
 In a few states the rule that there shall be 
 no imprisonment for an ordinary contract debt 
 is strictly adhered to ; see Genl. Laws Colo- 
 rado, p. 506 ; Rev. Stats. District Colmhta, 
 8 791; Code of Georgia, § 5010; Const. 
 Maryland, art. 8, § 38 ; Const. Minnesota, 
 art. 1, § 12; Const. Mississippi, art. 1, § 
 11 ; Const. Missouri, art. 2, § 16 ; Const. Ten- 
 
POOR LAW BOARD 
 
 433 
 
 POSITIVE CONDITION 
 
 nessee, art. 1, § 18; Const. Texas, art. 1, § 
 15; Coinp. Laws Wyoming, p. 429, § 196; 
 and in others female debtors are not subject 
 to arrest; see e.g. North Carolina, Rhode 
 Island, South Carolina, Vermont, Pennsyl- 
 vania, Dakota T., New Jersey. 
 
 POOR LAW BOARD. A government 
 board appointed by statute 10 & 11 Vict. c. 
 109, to take the place of poor law commis- 
 sioners, who had general management of the 
 poor and the funds for their relief. The poor 
 law board is now superseded by the local gov- 
 ernment board, established under 34 & 35 
 Viet. c. 70 ; 3 Steph. Com. 49 ; Moz. & W. 
 
 POOR RATE. A rate levied by church 
 authorities for the relief of the poor. 
 
 POPE. The bishop of Rome and head of 
 the Roman Catholic church. He is elected 
 by certain officers called cardinals, and remains 
 in power during life. In the 9th Collation of 
 the Authentics it is declared the bishop of 
 Rome hath the first place of sitting in all as- 
 semblies, and the bishop of Constantinople 
 the second. Ridley, Civ. & Eccl. Law, pt. 
 1, c. 3, § 10. 
 
 POPULAR ACTION. An action given 
 by statute to any one who will sue for the 
 penalty. A qui tam action. Dig. 47. 23. 1. 
 
 POPULISCITUM (Lat.). An act of 
 the commons ; same as plebiscitum. Ains- 
 worth. Diet. 
 
 A law passed by the whole people assem- 
 bled in comitia centuriata, and at the propo- 
 sal of one of the senate, instead of a tribune, 
 as was the case with a plebiscitum. Taylor, 
 Civ. Law, 178 ; Mackeldey, Civ. Law, §8 
 26, 37. 
 
 PORT. A place to which the officers of 
 the customs are appropriated, and which in- 
 cludes the privileges and guidance of all 
 members and creeks which are allotted to 
 them. 1 Chitty, Com. Law, 726 ; Postle- 
 waith, Com. Diet. According to Dalloz, a 
 port is a place within land, protected' against 
 the waves and winds and affording to vessels 
 a place of safety. By the Roman law a port 
 is defined to be locus conclusus, quo impor- 
 tantur merces et wide exportantur. Dig. 50. 
 16. 59. See 7 Mart. La. n. s. 81. 
 
 A port differs from a haven, and includes 
 something more. First, it is a place at which 
 vessels may arrive and discharge or take in 
 their cargoes. Second, it comprehends a 
 ville, city, or borough, called in Latin caput 
 corpus, for the reception of mariners and 
 merchants, for securing the goods and bring- 
 ing them to market, and for victualling the 
 ships. Third, it is impressed with its legal 
 character by the civil authority. Hale, de 
 Portibus Mar. c. 2 ; 1 Hargrave, Tracts, 46, 
 73; Bacon, Ahr. Prerogative (D 6); Comyns, 
 Dig. Navigation (.E); Co. 4th Inst. 148; 
 Ulhs, Sewers, 56 ; 2 Chitty, Com. Law, 2 ; 
 %• 50. 16. 59; 43. 12. 1. 13; 47. 10. 15. 
 ?;S9. 4. 15. 
 
 Vol. II.— 28 
 
 PORT OP DELIVERY. This is some- 
 times used to distinguish the port of unlading 
 or destination, from any port at which the 
 vessel touches for other purposes. 2 Mas. 
 319. 
 
 PORT OP DESTINATION. As used 
 in a time policy, the phrase has been held to 
 mean any foreign port to which the vessel 
 may be destined during the voyage, as well 
 as her home port, and to include any usual 
 stopping place for lading or unlading cargoes. 
 12 Gray, 501. 
 
 PORT OP DISCHARGE. The place 
 where the substantial part of the cargo is dis- 
 charged has been held to be such, although 
 done with the intent to complete the discharge 
 at another basin. 104 Mass. 510. Some car- 
 go must be discharged to make the port of 
 destination the port of discharge ; 6 Mas. 
 414. See, further, 2 Cliff. 4; 1 Sprague, 
 485 ; 1,8 Law Rep. 94. 
 
 PORT TOLL. The toll paid for bringing 
 goods into a port. 
 
 PORTATICA. (L. Lat.). In English 
 Law. The generic name for port duties 
 charged to ships. Hargr. Law Tracts, 64. 
 
 PORTER. The name of an ancient Eng- 
 lish officer who bore or carried a rod before 
 the justices. The door-keeper of the English 
 parliament also bears this name. 
 
 One who is employed as a common carrier 
 to carry goods from one place to another in 
 the same town is also called a porter. Such 
 person is, in general, answerable as a common 
 carrier. Story, Bailm. § 496. 
 
 PORTGREVE (from Sax. gerefa, reeve 
 or bailiff, and portj. A chief] magistrate in 
 certain maritime towns. The chief magis- 
 trate of London was anciently so called, as 
 appears from a charter of king WiUiam I. 
 Instead of this portgreve of London, the suc- 
 ceeding king appointed two bailiffs, and after- 
 wards a mayor. Camden, Hist. 325. 
 
 PORTION. That part of a parent's es- 
 tate, or the estate of one standing in loco pa- 
 rentis, which is given to a child. 1 Vern. 
 204'. See 8 Comyns, Dig. 539 ; 16 Viner, 
 Abr. 432 ; 1 Belt, Suppl. Ves. 34, 58, 303, 
 308 ; 2 id. 46, 370, 404. 
 
 PORTORIA (Lat.). InCivULaw. Du- 
 ties paid in ports on merchandise. Code, 4. 
 61.3. Taxes levied in old times at city gates. 
 Tolls for passing over bridges. Vicat, Voc. 
 Jur.; Spelman, Gloss. 
 
 PORTSALES. Auctions were anciently 
 so called, because they took place in ports. 
 
 POSITIVE. Express ; absolute ; not 
 doubtful. This word is frequently used in 
 composition. 
 
 POSITIVE CONDITION. One in 
 which the thing which is the subject of it must 
 happen : as, if I marry. It is opposed to a 
 negative condition, which is where the thing 
 which is the subject of it must not happen : 
 as, if I do not marry. 
 
POSITIVE EVIDENCE 
 
 434 
 
 POSSESSIO FRATRIS 
 
 POSITIVE EVIDENCE is that which, 
 if believed, establishes the truth or falsehood 
 of a fact in issue, and does not arise from any 
 presumption. It is distinguished from cir- 
 cumstantial evidence. 3 Bouvier, Inst. n. 
 3057. 
 
 POSITIVE FRAUD is the intentional 
 and successful employment of any cunning, 
 deception, or artifice, to circumvent, cheat, or 
 deceive another. 1 Story, Bq. Jur. 186 ; 
 Dig. 4. 3. 1. 2 ; Dig. 2. 14. 7. 9. It is cited 
 in opposition to constructive fraud. 
 
 POSITIVE LAW. Law actually ordained 
 or established, under human sanctions, as dis- 
 tinguished from the law of nature or natural 
 law, which comprises those considerations of 
 justice, right, and universal expediency that 
 are announced by the -voice of reason or of 
 revelation. Municipal law is chiefly, if not 
 essentially, positive ; while the law of nations 
 has been deemed by many of the earlier 
 writers as merely an application of the law of 
 nature. That part <x the law of nations 
 which rests on positive law may be considered 
 in a threefold point of view : — Jirst, the uni- 
 versal voluntary law, or those rules which 
 become law by the uniform practice of nations 
 in general, and by the manifest utility of the 
 rules themselves ; second, the customary law, 
 or that which, from motives of convenience, 
 has, by tacit but implied agreement, prevailed, 
 not necessarily among all nations, nor with so 
 permanent a utility as to become a portion of 
 the universal voluntary law, but enough to 
 have acquired a prescriptive obligation among 
 certain states so situated as to be mutually 
 benefited by it ; 1 Taunt. 241 ; third, the con- 
 ventional law, or that which is agreed between 
 particular statfes by express treaty, a law bind- 
 ing on the parties among whom such treaties 
 are in force. 1 Chitty, Com. Law, 28. 
 
 POSSE. This word is used substantively 
 to signify a possibility. For example, such 
 a thing is in posse, that is, such a thing may 
 possibly be. When the tBing is in being, the 
 phrase to express it is, in esse. 
 
 POSSE COMITATUS (Lat.). The 
 power of the county. 
 
 The sheriff, or other peace officer, has 
 authority by the common law, while acting 
 under the authority of the writ of the Uriited 
 States, commonwealth, or people, as the case 
 may be, and for the purpose of preserving 
 the public peace, to call to his aid the posse 
 comitatus. 
 
 But with respect to writs which issue in 
 the first instance to arrest in civil suits, the 
 sheriff' is not bound to take the posse comita- 
 tus to assist him in the execution of them ; 
 though he may, if he pleases, on forcied re- 
 sistance to the execution of the process ; Co. 
 2d Inst. 193 ; Co. 3d Inst. 161. 
 
 Having the authority to call in the assist- 
 ance of all, he may equally require that of any 
 individual ; but to this general rule there are 
 some exceptions ; persons of infirm health, or 
 who want understanding, minors under the 
 
 age of fifteen years, women, and 
 some others, it seems, cannot be required°to 
 assist the sheriff", and are, therefore, not con- 
 sidered as a part of the power of the countv- 
 Viner, Abr. Sheriff, B. ' ' 
 
 A refusal on the part of an individual law- 
 fully called upon f» assist the officer in put! 
 ting down a riot is indictable ; 1 Carr. & M 
 314. In this ease will be found the fonn of 
 an indictment for this offence. 
 
 Although the sheriff" is acting without 
 authority, yet it would seem that any person 
 who obeys his command, unless aware of that 
 fact, will be protected. 
 
 Whether an individual not enjoined by the 
 sheriff" to lend his aid would be protected in 
 his interference, seems questionable. In a 
 case where the defendant assisted sherifPs 
 officers in executing a writ of replevin with- 
 out their solicitation, the court held him jus- 
 tified in so doing ; 2 Mod. 244. See Bacon, 
 Abr. Sheriff (N) ; Hamm. N. P. 63 ; 6 
 Whart. 437, 440. 
 
 POSSESSED. This word is applied to 
 the right and enjoyment of a termor, or a 
 person having a term, who is said to be pos- 
 sessed, and not seized. Bac. Tr. 335 ; Foph. 
 76 ; Dy. 369. 
 
 POSSESSIO (Lat.>. In CivU Law. 
 The detention of a thing: divided into— 
 Jirst, natural, or the naked detention of a 
 thing, without intention to acquire ownership; 
 second, civil, or the detention of a thing t» 
 which one has a right, or with intention 
 of acquiring ownership. Heineccius, Elem. 
 Jur. Civ. § 1288 ; Mackeldey, Civ. Law, §§ 
 210, 213. 
 
 In Old English Law. Fossesaion ; seisin. 
 Law Fr. & Lat. Diet.; 2 Bla. Com. 227; 
 Bracton, lib. 2, c. 17; Cowel, Possession. 
 But seisina cannot be of an estate less than 
 freehold; possessio can. New England Sheriff, 
 141 ; 1 Mete. Mass. 450; 6 id. 439. 
 
 POSSESSIO PRATRIS (Lat. the 
 brother's possession). A technical phrase 
 applied in the English law relating to descents, 
 to denote the possession by one in such privity 
 with a person as to be considered the peraon's 
 own possession. 
 
 By the common law, the ancestor from 
 whom the inheritance was taken by descent 
 must have had actual seisin of the lands, either 
 by his own entry,orby the possession of his own 
 or his ancestor's lessee for years, or by being 
 in the receipt of rent from the lessee of the 
 freehold. But there are qualifications as to 
 this rule, one of which arises from the doc- 
 trine ofpossessio fratris. The possession ol 
 a tenant for years, guardian, or brother, b 
 equivalent to that of the party himself, "nc 
 
 is'termed in law possessio fratris ; Littleton, 
 sect. 8; € " "^^ " ~- " "^'■' 
 Term, 886 
 
 sect. 8; Co. Litt. 15 a; 3 Wills. 516; ' 
 
 In Connecticut, Delaware, Georgia, Massa- 
 chusetts, New Jersey, New York, Ol"". 
 Pennsylvania, Rhode Island, South Carolina, 
 Virginia, and probably in other states, the im 
 
POSSESSION 
 
 435 
 
 POSSESSORY ACTION 
 
 and personal estates of intestates are distrib- 
 uted among the heirs without any reference or 
 regard to the actual seisin of the ancestor. 
 Reeve, Desc. 377-379; 4 Mass. 467; 3 Day, 
 166 ; 2 Pet. 59. In Maryland, New Hamp- 
 shire, North Carolina, and Vermont, the doc- 
 trine of possessio fratris, it seems, still ex- 
 ists; 2 Pet. 625; Reeve, Desc. 377 ; 4 Kent, 
 384, 385. 
 
 POSSESSION. The detention or enjoy- 
 ment of a thing which a man holds or exer- 
 cises by himself, or by another who keeps or 
 exercises it in his name. 
 
 By the posBeseion of a thing we always conceive 
 the condition in which not only one's own deal- 
 ing with the thing is physically possible, but 
 every other person's dealing with it is capable of 
 being excluded. Thus, the seaman possesses his 
 ship, but not the water in which it moves, al- 
 though he makes each subserve his purpose. 
 
 Actual possession exists where the thing is 
 in the immediate occupancy of the party. 3 
 Dev. 34. 
 
 Constructive possession is that which exists 
 in contemplation of law, without actual per- 
 sonal occupation. 11 Vt. 129. And see 1 
 McLean, 214, 265; 2 Bla. Cora. 116. 
 
 In order to complete a possession, two things 
 are required: that there be an occupancy, 
 apprehension, or taking; that the taking be 
 with an intent to possess (animus possidendi) : 
 hence persons who have no legal wills, as chil- 
 dren and idiots, cannot possess or acquire pos- 
 session ; Pothier ; Etienne. See 1 Mer. 358 ; 
 Abbott, Shipp. 9. But an infant of suffi- 
 cient understanding may lawfully acqujre the 
 possession of a thing. 
 
 The failure to take possession is considered 
 a badge of fraud, in the transfer of personal 
 property. See Sale ; Mortgage. 
 
 As to the effects of the purchaser's taking 
 possession, see Sugd. Vend. 8, 9 ; 3 P. Wms. 
 193; 1 Ves. 226; 11 id. 464; 12 id. 27. 
 See, generally, 1 Harr. & J. 18; 5 id. 230, 
 263 ; 6 id. 336 ; 1 Me. 109 ; 1 H. & McH. 
 210; 2 id. 60, 254, 260; 3 Bibb, 209; 4 
 id. 412; 6 Cow. 632; 9 id. 241 ; 5 Wheat. 
 116, 124 ; Cowp. 217 ; Code Nap. art. 2228 ; 
 Code of the Two Sicilies, art. 2134 ; Bava^ 
 rian CodCj b. 2, c. 4, n. 5 ; Pruss. Code, art. 
 579 ; Domat, Lois Civ. liv. 3, t. 7, s. 1 ; 
 Viner, Abr. ; Wolff, Inst. § 200, and the 
 note in the French translation ; 2 Greenl. Ev. 
 §§ 614, 615; Co. Litt. 57 a; Cro. Eliz. 777; 
 5 Co. 13; 7 Johns. 1. 
 
 In Louisiana. Civil possession exists when 
 a person ceases to reside in a house or on the 
 land which he occupied, or to detain the mov- 
 able which he possessed, but without intend- 
 ing to abandon the possession. It is the de- 
 tention of a thing by virtue of a just title and 
 under the conviction of possessing as owner. 
 La. Civ. Code, art. 3.392, 3394. 
 
 Natural possession is that by which a man 
 detains a thing corporeal : as, by occupying 
 a house, cultivating ground, or retaining a 
 movable in his possession. Natural posses- 
 fflOB is also defined to be the corporeal deten- 
 
 tion of a thing which we possess as belonging 
 to us, without any title to that possession, or 
 with a title which is void. La. Civ. Code, 
 art. 3391, 3393. 
 
 Possession applies properly only to cor- 
 poreal things, movables and immovables. 
 The possession of incorporeal rights, such as 
 servitudes and other rights of that nature, is 
 only a quasi-possession, and is exercised by a 
 species of possession of which these rights 
 are susceptible. Id. art. 3395. 
 
 Possession may be enjoyed by the proprie- 
 tor of the thing or by another for him : thus, 
 the proprietor of a house possesses it by his 
 tenant or farmer. 
 
 To acquire possession of a property, two 
 things are requisite : the intention of possess- 
 ing as owner ; the corporeal possession of the 
 thmg. Id. art. 3399. 
 
 Possession is lost with or without the con- 
 sent of the possessor. It is lost with his eon- 
 sent — when he transfers this possession to 
 another with the intention to divest himself 
 of it ; when he does some act which mani- 
 fests his intention of abandoning possession : 
 as, when a man throws into the street furni- 
 ture or clothes of which he no longer chooses 
 to make use. Id. art. 3411. A possessor of 
 an estate loses the possession against his con- 
 sent — when another expels him from it, 
 %hether by force in driving him away, or by 
 usurping possession during his absence, and 
 preventing him from re-entering ; when the 
 possessor of an estat* allows it to be usurped 
 and held for a year, without during that time 
 having done any act of possession or inter- 
 fered with the usurper's possession. Id. art. 
 3412. 
 
 POSSESSION MONEY. An allow- 
 ance to one put in possession of goods taken 
 under writ of fieri facias. Holthouse, Diet. 
 
 POSSESSOR. He who holds, detains, 
 or enjoys a thing, either by himself or his 
 agent, which he claims as his own. 
 
 In general, the possessor of personal chat- 
 tels is presumed to be the owner ; and in case 
 of real estate he has a right to receive the 
 profits until a title adverse to his possession 
 has been established, leaving him subject to 
 an action for the mesne profits. 
 
 POSSESSORY ACTION. In Old 
 English Iia-w. A real action, in which the 
 plaintiff, called the' demandant, sought to re- 
 cover the possession of land, tenements, and 
 hereditaments. On account of the great 
 nicety required in its management, and the 
 introduction of more expeditious methods of 
 trying titles by other actions, it has been laid 
 aside. Finch, Laws, 257 ; 2 Bouvier, Inst. 
 n. 2640. 
 
 In admiralty law the term is still in use; see 
 Petitions. 
 
 In Louisiana. An action by which one 
 claims to be maintained in the possession of 
 an immovable property, or of aright upon or 
 growing out of it, when he has been dis- 
 turbed ; or to be reinstated to that possession, 
 
POSSIBILITY 
 
 436 
 
 POST-NUPTIAL 
 
 when he has been divested or evicted. 2 La. 
 227, 254. 
 
 In Scotch Law. An action by which the 
 possession of heritable or movable property 
 may be recovered and tried. An action of 
 molestation is one of them. Paterson, Comp. 
 § 1058, n. 
 
 FOSSIBILITf. An uncertain thing 
 which may happen. Lilly, Eeg. A contin- 
 gent interest in real or personal estate. 1 
 Madd. 549. 
 
 Possibilities are near, as when an estate is 
 limited to one after the death of another ; or 
 remote, as that one man shall be married to a 
 woman, and then that she shall die and he be 
 married to another. 1 Fonbl. Eq. n. e ; 
 Viner, Abr.; 2 Co. 51 a. 
 
 Possibilities are also divided into — a possi- 
 bility coupled with an interest. This may, 
 of course, be sold, assigned, transmitted, or 
 devised. Such a possibility occurs in execu- 
 tory devises, and in contingent, springing, or 
 executory uses. 
 
 A bare possibility, or hope of succession. 
 This is the case of an heir apparent during 
 the life of his ancestor. It is evident that he 
 has no right which he can assign, devise, or 
 even release. 
 
 A possibility or mere contingent interest : 
 as, a devise to Paul if he survive Pete* 
 Dane, Abr. c. 1, a 5, § 2, and the cases there 
 cited. 
 
 POST (Lat.). After. When two or more 
 alienations or descents have taken place be- 
 tween an original intruder and the tenant or 
 defendant in a writ of entry, the writ is said 
 to be in the post, because it states that the 
 tenant had not entry unless after the ouster of 
 the original intruder. 3 Bla. Com. 182. See 
 Entuy, Writ of. 
 
 POST-DATE. To date an instrument a 
 time after that on which it is made. See 
 Date. 
 
 POST DIEM (Lat.) . After the day ; as, 
 a plea of payment post diem, after the day 
 when the money became due. Comyns, Dig. 
 Pleader (2 W 29). 
 
 POST DISSEISIN. In English Law. 
 
 The name of a writ which lies for him who, 
 having recovered lands and tenements by force 
 of a novel disseisin, is again disseised by a 
 former disseisor. Jacob, Law Diet. 
 
 POST ENTRY. In Maritime Law. 
 
 An entry made by a merchant upon the im- 
 portation of goods, after the goods have been 
 weighed, measured, or gauged, to make up 
 the deficiency of the original or prime entry. 
 The custom of making such entries has 
 arisen from the fact that a merchant in 
 making the entry at the time of importation 
 is not or may not be able to calculate exactly 
 the duties which he is liable to pay: he 
 therefore makes an approximately correct 
 entry, which he subsequently corrects by the 
 post entry. See Chitty, Com. Law, 746. 
 
 POST FACTO (Lat). After the f«t. 
 See Ex Post Facto. 
 
 POST LIMINIUM (Lat. from;,o,(, after, 
 and hmen,, threshold). A fiction of civil law 
 by which persons or things taken by the 
 enemy were restored to their former state on 
 coming again under the power of the nation 
 to which they formerly belonged. Calvinns 
 Lex. ; 1 Kent, 108*. It is also recognized 
 by the law of nations. But movables are not 
 entitled to the benefit of this rule, by strict 
 law of nations, unless promptly recaptured. 
 The rule does not affect property which is 
 brought into a neutral territory ; 1 Kent, 108. 
 It is so called from the return of the person 
 or thing over the threshold or boundary of 
 the country from which it was taken. 
 
 POST LITEM MOTAM (Lat.). After 
 the commencement of the suit. 
 
 Declarations or acts of the parties made 
 post litem motam are presumed to be made 
 with reference to the suit then pending, and, 
 for this reason, are not evidence in favor of 
 the persons making them ; while those made 
 before an action has been commenced, in some 
 cases, 33 when a pedigree is to be proved, may 
 be considered as evidence ; 4 Camp. 401. 
 
 POST-MARE. A stamp or mark put 
 on letters in the post-office. 
 
 Post-marks are evidence of a letter's hav- 
 ing passed through the post-office ; 2 Camp. 
 620 ; 2 B. & P. 316 ; 15 East, 416 ; 1 Maule 
 & S. 201 ; 15 Conn. 206. 
 
 POST MORTEM (Lat.). Afterdeath: 
 as, an examination ^os« mortem is anexamin- 
 ation made of a dead body to ascertain the 
 cause of death ; an inquisition post mortem is 
 one made by the coroner. 
 
 It is the duty of the coroner, after death by 
 violence, to cause a post mortem examination to 
 be made by a competent medical authority. A 
 physician thus employed may, at common law, 
 maintain an action against the county for trouble 
 and labor expended in such examination ; Gib- 
 son, C. J., in 4 Penn. 269. 
 
 POST-NATDS (Lat.). Literally, after 
 born ; it is used by the old law, writers to de^ 
 signate the second son. See Puisne ; Post- 
 Nati. 
 
 POST NOTES. A species of bank-notes 
 payable at a distant period, and not on de- 
 mand. 2 W. & S. 463. A kind of bank- 
 notes intended to be transmitted at a distance 
 by post. See 24 Me. 36. 
 
 POST-NUPTIAL. Something which takes 
 place after marriage : as, a post-nuptial set- 
 tlement, which is a conveyance made gene- 
 rally by the husband for the benefit of the 
 wife. 
 
 A post-nuptial settlement is either yfith or 
 without consideration. The former is valid 
 even against creditors, when in other respects 
 it is untainted with fraud ; 4 Mas. 443 ;, 2 
 Bail. 477. The latter, when made without 
 consideration, \i bona fide, and the husband be 
 not involved at the time, and it be not dis- 
 proportionate to his means, taking his debts 
 
POST OBIT 
 
 437 
 
 POSTAGE 
 
 and situation, into consideration, is valid ; 4 
 Mas. 443. See 4 Dall. 304 ; Settlement ; 
 
 VOLUNTAliY CONYEYANCE. 
 
 POST OBIT (Lat.). An agreement by 
 which the obligor borrows a certain sum of 
 money and promises to pay a larger sum, ex- 
 ceeding the lawful rate of interest, upon the 
 death of a person from whom he has some ex- 
 pectation, if the obliger be then living. 7 
 Mass.ll9;6Madd. Ill; 5Ves.57; 19 id. 628.. 
 
 Equity will, in general, relieve a party 
 from these unequal contracts, as they are 
 fraudulent on the ancestor. See 1 Story, Eq. 
 Jur. §342; 2 P. Wms. 182; 2 Sim. 183, 
 192 ; 5 id. 524. But relief will be granted 
 only on equitable terms ; for he who seeks 
 equity must do equity; 1 Fonbl. Ex. b. 1, 
 c. 2, § IS, note p.; 1 Story, Eq. Jur. § 344. 
 It has been held that the repeal of the usury 
 laws, in England has not altered the doctrine 
 by which the court of chancery affords relief 
 against improvident and extravagant bar- 
 gains; L. K. 8 Oh. 484. In some of the 
 United States the usurious excess above the 
 lawful rate alone is void ; 8 Phila. 84; Bisph. 
 Eq. § 222. See Catchinu Bakgain ; 
 Macedonian Decree. 
 
 POST-OPPICB. An office for the receipt 
 and delivery of the mail. 
 
 The constitution has vested in congress the 
 power to establish post-offices and post-roads. 
 Art. 1, § 8, n. 7. By virtue of this authority, 
 several acts have heen passed, the more impor- 
 tant of which are those of March 3, 1825, 4 U. 
 S. Stat, at Large, 102 ; July 2, 1836, 5 U. S. 
 Stat, at Large, 84; March 3, 18.51, 9 U. S. Stat, 
 at Large, 593 ; March 3, 1853, 11 U. S. Stat, at 
 Large, 255; March 3, 1863, June 8, 1872; R. S. 
 3829. Such existing roads as are adopted for the 
 purpose are selected by congress as post-roads ; 
 and new ones are seldom constructed, though 
 they have been made by express authority ; 
 Story, Const. § 1133. 
 
 POSTAGE. The money charged by law 
 for carrying letters, packets, and documents 
 by mall. 
 
 The rates of postage between places in the 
 United States are fixed expressly by law ; the 
 rates of postage upon foreign letters are fixed 
 by arrangements entered into by the post- 
 master-general, in pursuance of authority 
 vested in him by congress for that purpose. 
 
 All mailable matter is divided into three 
 classes : letters, embracing all correspondence 
 wholly or partly in writing, except that men- 
 tioned in the third class ; regular printed matter, 
 embracing all mailable matter exclusively in 
 print and regularly issued at stated periods, 
 without addition by writing, mark, or sign ; see 
 12 How. 284 ; 4 Opin. Atty.-Genl. 10 ; miseella- 
 neous matter, embracing all other matter which 
 i« or may hereafter be by law declared mailable, 
 including pamphlets, occasional publications, 
 books, book- manuscripts, and proof-sheets, 
 whether corrected or not, maps, prints, en- 
 gravings, blanks, flexible patterns, samples and 
 sample cards, phonographic paper, letter en- 
 velopes, postal envelopes or wrappers, cards, 
 paper, plain or ornamental, photographic repre- 
 sentations of different types, seeds, cuttings, 
 bulbs, roots, and scions. 
 
 The rate of postage on all domestic mailable 
 matter, wholly or partially in writing, or so 
 
 marked as to convey any other or further intel- 
 ligence or information than is conveyed in the 
 original print, in the case of printed matter, or 
 which is sent in violation of law or regulations 
 of the department touching the inclosure of mat- 
 ter which may be sent at less than letter rates, 
 and on all matter introduced into the mails not 
 otherwise provided for, excepting manuscript 
 and corrected proof passing between authors 
 and publishers, and memorandums of the ex- 
 piration of subscriptions, receipts and bills for 
 subscription. Inclosed with or printed on regular 
 publications by the publishers, is three cents for 
 a half-ounce or less, avoirdupois, and three cents 
 additional for each additional half-ounce or frac- 
 tion. 
 
 The postage on all letters not transmitted 
 through the mails but delivered through the 
 post-office or by its carriers, is two cents for a 
 half-ounce or less, and an additional rate for each 
 additional half-ounce or fraction thereof. 
 
 The following mailable matter is subject to 
 the rate of one cent for every two ounces, or 
 fractional part thereof, and one cent for each 
 additional two ounces or fractional part thereof, 
 to wit : Books (printed and blank), transient 
 newspapers and periodicals, circulars, and 
 other matter wholly in print, proof-sheets and 
 corrected proof-sheets and manuscript copy 
 accompanying the same, prices-current, with 
 prices filled out in writing, printed commercial 
 paper filled out in writing (provided such 
 writing is not in the nature of personal corre- 
 spondence), such as papers of legal procedure, 
 deeds of all kinds, way-bills, bills of lading, 
 invoices, insurance policies and the various 
 documents of insurance companies, hand- 
 bills, posters, chromo-lithographs, engravings, 
 envelopes with printing thereon, heliotypes, 
 lithographs, photographic and stereoscopic 
 views with title written thereon, printed 
 blanks, and printed cards. 
 
 The following mailable matter is at the rate 
 of one cent for each ounce or fractional part 
 thereof, to wit : Blank cards, cardboard, and 
 other flexible material, flexible patterns, let- 
 ter envelopes and letter paper withcvut printing 
 thereon, merchandise models, ornamented 
 paper, sample cards, samples of ores, metals, 
 minerals, seeds, cuttings, bulbs, roots, scions, 
 drawings, plans, designs, original paintings 
 in oil or water colors, and any other matter 
 not included in the first, second, or third 
 classes, and which is not in its form or nature 
 liable to destroy, deface, or otherwise damage 
 the contents of the mail-bag, or harm the 
 person of any one engaged in the postal ser- 
 vice. K. S. § 3896. 
 
 The postmaster-general is authorized and 
 directed to furnish and issue to the public, 
 with postage stamps impressed upon them, 
 " postal-cards," which cards shall be used as 
 a means of postal intercourse, under rules and 
 regulations to be prescribed by the postmas- 
 ter-general, and when so used shall be trans- 
 mitted through the mails at a postage charge 
 of one cent each. R. S. § 3916. 
 
 It is lawful to transmit through the mail 
 free of postage, any letters, packages, or other 
 matters, relating exclusively to the business of 
 the government of the United States, pro- 
 vided that every such letter or package, to 
 
POSTAGE-STAMPS 
 
 438 
 
 POSTMAN 
 
 entitle it to pass free, shall bear over the 
 words ' ' official business, ' ' an endorsement 
 showing also the name of the department and 
 bureau or office, as the case may be, whence 
 transmitted; B. S. Supp. p. 288. 
 
 Senators, representatives, and delegates in 
 congress, the secretary of the senate, and clerk 
 of the house of representatives, may send and 
 receive through the mail, all public documents 
 printed by order of congress ; and the name 
 of each senator, representative, delegate, sec- 
 retary of the senate, and clerk of the house 
 shall be written thereon, with the proper 
 designation of the office he holds, and the 
 provisions of this act apply to each of the 
 persons named therein until the first of De- 
 cember following the expiration of his term 
 of office ; R. S. Supp. p. 288. 
 
 POSTAGE-STAMPS. The act of con- 
 gress 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 post- 
 master-general be authorized to prepare post- 
 age-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 post-stamp, with the intent to de- 
 fraud 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 sucli offence ; to be re- 
 covered in the name of the United States, in 
 any court of competent jurisdiction. See, 
 also. Act of Mar. 3, 1851, 9 Stat, at L. 589 ; 
 Act of Aug. 31, 1852, 10 Stat, at L. 141. 
 It is made penal to sell stamps or stamped 
 envelopes for a larger sum than that indi- 
 cated on the stamp or than is charged by 
 the department. Act of Mar. 3, 1855, 10 
 Stat, at L. 642 ; see R. S. § .5463. 
 
 POSTEA (Lat. afterwards). In Practice. 
 
 The indorsement, on the nisi prius record 
 purporting to be the return of the judge be- 
 fore whom a cause is tried, of what has been 
 done in respect of such record. 
 
 It states the day of trial, before what judge, 
 by name, the cause is tried, and also who is 
 or was an associate of such judge ; it also 
 states the appearance of the parties by their 
 respective attorneys, or their defaults, and 
 the summoning and choice of the jury, 
 whether those who were originally summoned, 
 or those who were tales, or taken from the 
 standers-by ; it then states the finding of the 
 jury upon oath, and, according to the descrip- 
 tion of the action, and the assessment of the 
 damages, with the occasion thereof, together 
 with the costs. 
 
 These are the usual matters of fact con- 
 tained in the pogtea ; but it varies with the 
 description of the action. See Lee, Diet 
 Postea; 2 Lilly, Abr. 337; 16 Viner, Abr 
 465 ; Bacon, Law Tr. 127. 
 
 When the trial is decisive, and neither the 
 law nor the facts can afterwards be contro. 
 verted, the postea is delivered by the proper 
 officer to the attorney of the successful party 
 to sign his judgment ; but it not nnfrequently 
 happeiis that after a verdict has been given 
 there is just cause to question its validity : in 
 such case the postea remains in the custody of 
 the court. Eunomus,.Dial. 2, § 33, p. 116. 
 
 POSTERIORES (Lat.). This term was 
 used by the Romans to denote the descendants 
 in a direct line bej^ond the sixth degree. It 
 is still used in making genealogical tables. 
 
 POSTERIORITY, Being or coming 
 after. It is a word of comparison, the corre- 
 lative of which is priority : as, when a man 
 holds lands from two landlords, he holds from 
 his ancient landlord by priority, and from the 
 other by posteriority. Co. 2d Inst. 392. 
 
 These terms, priority and posteriority, are 
 also used in cases of liens : the first are prior 
 liens, and are to be paid in the first place ; 
 the last are posterior liens, and are not en- 
 titled to payment until the former have been 
 satisfied. 
 
 FOSTERITf. All the descendants of a 
 person in a direct line to the remotest genera- 
 tion. 8 Bush, 527. 
 
 POSTHUMOUS CHILD. One bom 
 
 after the death of its father ; or, when the 
 Caesarean operation is performed, after that 
 of the mother. The doctrine is universally 
 adopted throughout the United States, that 
 posthumous children inherit in the same man- 
 ner as if born during the father's life ; and 
 this relates back to the conception of the child, 
 if it is bom alive ; 3 Washb. R. P. *412 ; 4 
 Paige, 52; 30 Penn. 173. The court will 
 allow a longer time than nine months for the 
 birth of the child, when the opinion of physi- 
 cians, or circumstances warrant it ; 2 Greenl. 
 Cruise, R. P. 140. 
 
 The issue of marriages deemed null in law 
 or dissolved by a court, are nevertheless de- 
 clared legitimate in Arkansas, Dig. Stet. 
 (1858) c. 56, § 5 ; California, Wood, Dig. 
 (1858) 424 ; Missouri, 1 Rev. Stat. (1855) 
 c. 54, § 11 ; Ohio, Rev. Stat. (1854) c. 36, 
 §16; Virginia, Code (1849), 623. See 2 
 Washb. R. P. 413, 439 ; 4 Kent, 412 ; 7Ga. 
 535 ■ 12 Miss. 99. 
 
 When a father makes a will without pro- 
 viding for a posthumous child, the will b 
 generally considered as revoked pro tanto ; 2 
 Washb. R. P. 699, 412; 4 Kent, 412,621, 
 n., 525 ; 28 Am. Rep. 486. 
 
 POSTMAN. A senior barrister in court 
 of exchequer, who has precedence in motions; 
 so called from place where he sits. 2 m- 
 Com. 28 ; Wharton, Diet. A letter-earner. 
 Webster, Diet. 
 
POSTMASTER 
 
 439 
 
 POSTULATIO 
 
 POSTMASTER. An officer who keeps 
 a post-office, attending to the receipt, for- 
 warding, and delivery of letters and other 
 matter passing through the mail. 
 
 Postmasters must reside within the delivery 
 for which they are appointed. For those of- 
 fices where the salary or compensation is less 
 than a thousand dollars a year, the postmaster- 
 general appoints ; where it is more, the presi- 
 dent. Postmasters are divided into five 
 classes, exclusive of the postmaster at N. Y. 
 city, according to the amount of salary ; those 
 of the first class receiving between three and 
 four thousand, those of the fifth, less than 
 two hundred ; R. S. § 3852. They must 
 give bond to the United States of America ; 
 see 19 How. 73 ; Gilp. 54 ; which remains in 
 force, for suit upon violation during the term ; 
 1 W. & M. 150 ; for three, formerly two, 
 years after the expiration of the term of of- 
 fice ; R. S. § 3838 ; 7 How. 681. See R. S. 
 §3836. 
 
 Where an office is designated as a money- 
 order office, the bond of the postmaster shall 
 contain an additional condition for the faith- 
 ful performance of all duties and obligations 
 in connection with the money-order business ; 
 E. S. § 3834. 
 
 Every postmaster is required to keep an 
 office in the place for which he may be ap- 
 pointed; 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. 
 
 Every person who, without authority from 
 the postmaster-general, sets up any office bear- 
 ing the title of post-office is liable to a penalty 
 of $500 for each offence; R. S. § 3829. 
 
 Although not subject to all the responsibil- 
 ities of a common carrier, yet a postmaster i? 
 liable for all losses and injuries occasioned 
 by his own default in office ; 3 Wils. 443 ; 
 Cowp. 754 ; 5 Burr. 2709 ; 1 Bell, Com. 
 468; 2 Kent, 474 ; Story, Bailm. § 463. 
 
 Whether a postmaster is liable for the acts 
 of his clerks or servants seems not to be set- 
 tled ; 1 Bell, Com. 468. In Pennslyvania it 
 has been decided that he is not responsible 
 for their secret delinquencies ; though, per- 
 haps, he is answerable for want of attention 
 to the official conduct of his subordinates ; 8 
 Watts, 453. 
 
 POSTMASTER-GENERAL. The 
 chief officer of the post-office department of 
 the executive branch of the government of 
 the United States. 
 
 His duties, in brief, are, among other 
 things, to establish post-offices and appoint 
 postmasters, see Postmaster, at convenient 
 places upon the post-roada established by 
 law ; to give instructions for conducting the 
 business of the department ; to provide for 
 the carriage of the mails ; to obtain from 
 the postmasters balances due, with accounts 
 and vouchers of expenses ; to pay the ex- 
 penses of the department, see 15 Pet. 377; 
 
 to prosecute offences, and, generally, to 
 superintend the business of the department in 
 all the duties assigned to it. He is assisted by 
 three assistants and a large corps of clerks, — 
 the three assistants being appointed by the pre- 
 sident. He must make ten several reports an- 
 nually to congress, relating chiefly to the 
 financial management of the department, with 
 estimates of the expenses of the department 
 for the ensuing year. He is a member of the 
 cabinet ; R. S. §§ 388-414. 
 
 FOSTNATI (Lat.). Those bom after. 
 Applied to American and British subjects 
 born after the separation of England and the 
 United States ; also to the subjects of Scot- 
 land born after the union of England and 
 Scotland. Those born after an event, as op- 
 posed to antenaii, those born before. 2 Kent, 
 56-59; 2 Pick. 394; 5 Day, 169*. See 
 Antenati. 
 
 FOSTUliATIO (Lat.). In Roman Law. 
 
 The name of the first act in a criminal pro- 
 ceeding. 
 
 A person who wished to accuse another of 
 a crime appeared before the praetor and re- 
 quested his authority for that purpose, 
 designating the person intended. This act 
 was called postulatio. The postulant (^caltinv- 
 nium jurabat) made oath that he was not 
 influenced by a spirit of calumny, but acted 
 in good faith with a view to the public 
 interest. The praetor received this declara- 
 tion, at first made verbally, but afterwards 
 in writing, and called a libel. The postulatio 
 was posted up in the forum, to give public 
 notice of the names of the accuser and the 
 accused. A second accuser sometimes ap- 
 peared and went through the same formalities. 
 
 Other persons were allowed to appear 
 and join the postulant or principal accuser. 
 These were said postulare suhscriptionem, 
 and were denominated suhscriptores. Cic. in 
 Cajcil. Divin. 15. But commonly such per- 
 sons 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, bj' judges 
 appointed for the purpose. Cic. in Verr. i. 6. 
 The preliminary proceeding-was called divina- 
 tio, and is well explained in the oration of 
 Cicero entitled Divinatio. See Aulus Gellius, 
 Att. Noct. lib. ii. cap, 4. 
 
 The accuser having been determined in this 
 manner, he appeared before the prsetor, and 
 formally charged the accused by name, speci- 
 fying 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. 
 
 If the accused appeared, the accuser for- 
 mally charged him with the crime. If the 
 accused confessed it, or stood mute, he was 
 adjudged to pay the penalty. If he denied 
 
POSTULATIO ACTIONIS 
 
 440 
 
 -POUNDAGE 
 
 it, tlje 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 intervalof 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 ac- 
 complished it in fifty days, and renounced, as 
 he might do, the advantage of the remainder 
 of the time allowed him. 
 
 At the day appointed for the trial, the ac- 
 cuser and his adjuncts or colleagues, the ac- 
 cused, and the judges, were summoned by the 
 lierald 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 qucestionis. The jury 
 was called y«ra(j homines, and the drawing of 
 them sortitio, and they were taken from a 
 general list made out for the year. Either 
 liarty 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. 
 
 In some tribunals quastiones (the jury) 
 were editi (produced) in equal number by the 
 accuser and the accused, and sometimes by 
 the accuser alone, and 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 (giuBstio): 
 they were sworn before the trial began. Hence 
 they were called jurati. 
 
 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 
 da,y following the first hearing, which was 
 called comperendinatio. 
 
 After the pleadings were concluded, the 
 prsetor or the Judex qucestionis distributed 
 tablets to the jury, upon which each wrote, 
 secretly, either the letter A. [absolvo), or the 
 letter C. (condem.no), 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 ac- 
 cused, the magistrate declared it by the words 
 fecisse non videtur, and by the words /ecisse 
 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 amplius. Such, 
 in brief, was the course of proceedings before 
 the qucsstiones perpetuce. 
 
 The forms observed in the comitia centu- 
 riata and comitia tributa were nearly the 
 same, except the composition of the tribunal 
 and the mode of declaring the vote. 
 
 POSTULATIO ACTIONIS (Lat.). In 
 
 Civil Law. Demand of an action (mid) 
 from the praetor, which some explain to be a 
 demand of a formula, or form of the suit- 
 others, a demand of leave to bring the cause 
 before the judge. Taylor, Civ. Law, 80- 
 Calvinus, Lex. Actio. ' 
 
 POT-DE-VIN. In French Law. A 
 sum of money frequently paid, at the mo- 
 ment of entering into a contract, beyond tie 
 price agreed upon. 
 
 It differs from arrha in this, that it is no part 
 of the price of the thing sold, and that the per- 
 son who has received It cannot by returnin? 
 double the amount, or the other party by losinl 
 what he has paid, rescind the contract. 18 Toul- 
 lier, n. 53. 
 
 POTENTATE. One who has a great 
 power over an extended country ; a sove- 
 reign. 
 
 By the naturalization laws of the United 
 States, an alien is required, before he can be 
 naturalized, to renounce all allegiance and 
 fidelity to any foreign prince, potentate, state, 
 or sovereign whatever. 
 
 POTEST AS (Lat.). In Civil Law. 
 Power ; authority ; domination ; empire. Im- 
 perium, or the jurisdiction of magistrates. 
 The power of the father over his children, 
 patria potestas. The authority of mastera 
 over their slaves, which makes it nearly syn- 
 onymous with dominium. See Inst. 1. 9. 12 ; 
 Dig. 2. 1. 13. 1 ; 14. 1; 14. 4. 1. 4. 
 
 POUND. A place, enclosed by public 
 authority, for the temporary detention of 
 stray animals. 4 Pick. 268 ; 5 id. 514 ; 9 
 id. 14. 
 
 Weights. There are two kinds of weights, 
 namely, the troy and the avoirdupois. Tlie 
 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. 
 
 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 dif- 
 ferent value in the several states. 
 
 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 shaiU be con- 
 sidered and taken as of the value of four 
 dollars and eighty-six cents and six and one 
 half mills; R. S. § 3565. 
 
 The pound sterling of Irelandis tobecom- 
 puted, in calculating said duties, at four dol- 
 lars and ten cents ; id. 
 
 POUND-BREACH. Theoffenceof 
 breaking a pound in order to take ""* ♦j'^ 
 cattle impounded. 3 Bla. Com. 146. The 
 writ de parco fracto, or pound-breach, lies 
 for recovering damages for this oflfence ; also 
 case. Id. It is also indictable. 
 
 POUNDAGE. In Practice. The amount 
 allowed to the sheriff, or other officer, for 
 
POURPARLER 
 
 441 
 
 POWER 
 
 commissions on the money made by virtue of 
 an execution. This allowance varies in dif- 
 ferent states and to different officers. 
 
 POURPARLER. In 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. Pardessus, Dr. Com. 142. 
 
 POURSmVANT. A follower ; a pur- 
 suer. 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, etc., to be sent as a messenger. A 
 poursuivant was, therefore, a messenger of the 
 king. 
 
 POWER. The right, ability, or faculty 
 of doing something. 
 
 Technically, an authority by which one 
 person enables another to do some act for him. 
 2 Lilly, Abr. 839. 
 
 Derivative Powers are those which are 
 received from another. This division includes 
 all the powers technically so called. They 
 are of the following classes : — 
 
 Coupled with an interest, being a right or 
 authority to do some act, together with an 
 interest in the sulgect on which the power is 
 to be exercised. Marshall, C. J., 8 Wheat. 
 203. 
 
 A power of this class survives the person cre- 
 ating It, and, in case of an excess in execution, 
 renders the act valid so far as the authority ex- 
 tends, leaving it void as to the remainder only. 
 It includes powers of sale conferred on a mort- 
 
 Naked, being a right of authority discon- 
 nected from any interest of the donee in the 
 subject-matter. 3 Hill, N. Y. 365. 
 
 Inherent Powers. Those which are 
 enjoyed by the possessors of natural right, 
 without having been received from another. 
 Such are the powers of a people to establish 
 a form of government, of a father to control 
 his children. Some of these are regulated 
 and restricted in their exercise by law, but 
 are not technically considered in the law as 
 powers. 
 
 The person bestowing a power is called the 
 donor; the person on whom it is bestowed is 
 called the donee. See Contract ; Agent ; 
 Agency. 
 
 Powers under the Statute of Uses. An 
 authority enabling a person, through the me- 
 dium of the Statute of Uses, to dispose of an 
 interest in real property, vestgd either in him- 
 self or another person. 
 
 Methods of causing a use, with its accom- 
 panying estate, to spring up at the will of a 
 t'ven person. Williams, R. P. 245 ; 2Washb. 
 . P. 300. 
 
 The right to designate the person who is to 
 take a use. Co. Litt. 271 6, Butler's note, 
 231, § 3, pi. 4. 
 
 A right to limit a use. 4 Kent, 334. 
 
 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. N. Y. Rev. Stat. 
 
 They are distinguished as — 
 
 Appendant. Those which the donee is au- 
 thorized to exercise out of the estate limited 
 to him, and which depend for their validity 
 upon the estate which is in him. 2 Washb. 
 R. P. 304. A life-estate limited to a man, 
 with a power to grant leases in possession, is 
 an example. Hardr. 41C ; 1 Caines, Cas. 15 ; 
 Sugd. Pow. 107 ; Burton, R. P. § 179. 
 
 Of appointment. Those which are to cre- 
 ate new estates. Distinguished from powers 
 of revocation. 
 
 Collateral. Those in which the donee has 
 no estate in the land. 2 Washb. R. P. 
 .S05. 
 
 General. Those by which the donee is at 
 liberty to appoint to whom he pleases. 
 
 In gross. Those which give a donee, who 
 has an estate in the land, authority to create 
 such estates only as will not attach on the 
 interest limited to him or take effect out of 
 his own interest. 2 Cow. 236 ; Tudor, Lead. 
 Cas. 293 ; Watk. Conv. 260. 
 
 Of revocation. Those which are to divest 
 or abridge an existing estate. Distinguished 
 from those of appointment ; but the distinc- 
 tion is of doubtful exactness, as every new 
 appointment must divest or revoke a former 
 use. Sanders, Uses, 154. 
 
 As to the effect of the insertion of a power of 
 revocation, either single or in connection with 
 one of appointment, see Styles, 389 ; 3 Washb. 
 B. P. 307. 
 
 Special. Those in which the donee is re- 
 stricted to an appointment to or among par- 
 ticular objects only. 2 Washb. R. P. 307. 
 
 The person who receives the estate by ap- 
 pointment is called the appointee ; the donee 
 of the power is sometimes called the ap- 
 pointor. 
 
 2%e creation of a power may be by deed 
 or will; 2 Washb. R. P. 314 ; by grant to a 
 grantee, . or reservation to the grantor ; 4 
 Kent, 319; and the reservation need not be 
 in the same instrument, if made at the same 
 time; 1 Sugd. Pow. 158; hy any form of 
 words indicating an intention ; 2 Washb. R. 
 P. 315. The doubt whether a power is 
 created or an estate conveyed can, in general, 
 exist only in cases of wills ; 2 Washb. R. P. 
 316 ; and in any case is determined by the in- 
 tention of the grantor or devisor, as expressed 
 in or to be gathered from the whole will or 
 deed ; 10 Pet. 532 ; 8 How. 10 ; 3 Cow. 651 ; 
 7 id. 187; 6 Johns. 73; 6 Watts, 87; 4 Bibb, 
 307. It must be limited to be executed, and 
 must be executed within the period fixed by 
 the rules against perpetuities ; 5 Bro. P. C. 
 592 ; 2 Ves. S68 ; 13 Sim. 393 ; Lewis, 
 Perpet. 483-485. 
 
 The interest of the donee is not an estate ; 
 Watk. Conv. 271 ; 2 Prest. Abstr. 275 ; N. 
 Y. Rev. Stat. art. 2, § 68 ; but is sufficient to 
 enable the donee to act, if the intention of 
 the donor be clear, without words of inherit- 
 ance; 3 Ves. 467 ; 1 Mod. 190; 1 P. Wms. 
 
POWER 
 
 442 
 
 PRACTICE 
 
 171 ; 7 Johns. Ch. 34; see Co. Litt. 271 b, 
 Butler's note, 231 ; and may coexist with the 
 absolute fee in the donee; 10 Ves. 255- 
 257; 4 Greenl. Cruise, Dig. 241, n. As a 
 •leneral rule a power to sell does not include a 
 power to mortgage ; 3 Hill, N. Y. 361 ; but 
 where it is for raising a particular charge, and 
 the estate itself is settled or devised subject 
 to that charge, then it may be proper under 
 the circumstances to raise the money by mort 
 gage, and the court will support it as a condi- 
 tional sale ; 1 De G. M. & G. 645 ; 3 Jur. n. 
 s. 1143; Sugd. Powers, 425; and sale gene- 
 rally means a cash sale ; 4 Kent, 331 ; 3 Hill, 
 N. Y. 373. 
 
 As to exercising the power : if it be 
 simply one in which no person is interested 
 but the donee, it is a matter of election on his 
 part whether to exercise it or not ; 1 Sugd. 
 Pow. ed. 1856, 158 ; see infra; but if coupled 
 with a trust in which other persons are inter- 
 ested, equity will compel an execution ; Story, 
 Eq. Jur. § 1062 ; 2 Mas. 244, 251. 
 
 The execution must be in the manner pre- 
 scribed, by the proper person, see Appoint- 
 ment, and cannot be by an assignee ; 2 
 Washb. R. P. 321 ; unless authorized by the 
 limitation ; 4 Cruise, Dig. 211 ; or unless an 
 interest be coupled with the power ; 2 Cow. 
 236; 8 Wheat. 203; nor by a successor, as on 
 the death of an executor ; 13 Mete. 220. See 
 
 1 Bail. Eq. 392 ; 6 Rand. 593. As to whe- 
 ther a sale by a donee who has also an estate 
 in the land is held to be an execution of the 
 power, see 2 Washb. R. P. 325; Tudor, Lead. 
 Cas. 306 ; 1 Atk. 440 ; 5 B. & 0. 720 ; 6 Co. 
 18 ; 8 Watts, 203 ; 16 Penn. 25. 
 
 Where an exact execution is impossible 
 under authority of court, it may be executed 
 as near as may be {cy-pris) to carrying out 
 the donor's intention; 2 Term, 241 ; 4 Ves. 
 681 ; 5 Sim. 632; 3 Wash. C. C. 12. 
 
 It must be made at a proper time, and, 
 where several powers are given over different 
 parts of the same estate, in proper -success- 
 sion ; 1 Co. 174; 1 W. Blackst, 281. 
 
 Equity will compel the donee to execute a 
 power where it is coupled with a trust in 
 which other persons are interested; Story, 
 Eq. Jur. § 1062 ; and to correct a formal de- 
 fect in the manner of execution ; Ambl. 687 ; 
 
 2 P. Wms. 489, 622 ; 2 Mas. 251 ; 3 Edw. 
 Ch. 175. 
 
 The suspension or destruction of a power 
 may sometimes happen by a release by the 
 donee, by an alienation of his estate, by his 
 death, and by other circumstances. 
 
 An appendant power may be suspended by 
 a conveyance of his interest by the donee ; 4 
 Cruise, Dig. 221-Dougl. 477 ; Cro. Car. 472 ; 
 4 Bingh. n. c. 784; 2 Cow. 287 ; and may 
 be extinguished by such conveyance ; 2 B. & 
 Aid. 93; 10 Ves. 246 ; or by a release ; 1 
 Russ, & M. 431, 486, n. ; 1 Co. 102 b; 2 
 Washb. R. P. 308. 
 
 A power in gross may be released to one 
 having the freehold in possession, reversion, 
 or remainder, and not by any other act of 
 
 the donee; Tudor, Lead. Cas. 294; Burton 
 R. P. § 176 ; Chance, Pow. § 3172; Harfr' 
 416 ; 1 P. Wms. 777. 
 
 A collateral power cannot be suspended or 
 destroyed by act of the donee; P. Moore 
 605 ; 5 Mod. 457. And see 1 Kuss. & m' 
 431 ; 13 Mete. 220. 
 
 Impossibility of immediate vesting in inter- 
 est or possession does not suspend or extin- 
 guish a power ; 2 Bingh. 144. 
 
 Consult Burton, Labor, Flintoff, Wagh- 
 burn, Williams, Real Property; Chance 
 Sugden, Powers; Fearne, Contingent' Ke^ 
 mainders ; Tudor, Leading Cases ; Cruise 
 Digest, Greenleaf's ed.; Gilbert, Sugden'r 
 ed.; Sanders, Usesj Kent, CommentarieB ;' 
 Watkins, Conveyancing. 
 
 For the distinction between political and 
 judicial power, see 78 111. 261 ; 75 id. 152 ; 29 
 Mich. 451; 43 Iowa, 452; 114 Mass. 247; 
 s. c. 19 Am. Rep. 341 ; lOBush, 72; Cooley, 
 Const. Lim. 122. 
 
 POV7ER OF ATTORNBT. An instru- 
 ment authorizing a person to act as the agent 
 or attorney of the person granting it, 
 
 A general power authorizes the agentJo 
 act generally in behalf of the principal. ■ 
 
 A special power is one limited to particular 
 acts. 
 
 It may be parol or under seal; 1 Pars. 
 Contr. 94. The attorney cannot, in general, 
 execute a sealed instrument so as to bind his 
 principal, unless the power be under seal ; 7 
 Term, 259 ; 2 B. & P. 338 ; 5 B. & C. 355 ; 
 2 Me. 358. See 7 M. & W. 322, 331 ; 7 Cra. 
 299; 4 Wash. C. C. 471; 19 Johns. 60; 2 
 Pick. 345. 
 
 Powers of attorney are strictly construed ; 
 6Cush. 117; 5 Wheat. 326; 3 M. & W. 402 ; 
 8 id. 806 ; 5 Bingh. 442. General terms used 
 with reference to a particular subject-matter 
 are presumed to be used in subordination to 
 that matter; 1 Taunt. 349 ; 7 B. & C. 278; 
 1 Y. & C. 394; 7 M. & W. 695; 5 Denio, 
 49; 7 Gray, 287. See, as to a power to col- 
 lect a debt ; 1 Blackf. 252 ; to settle a claim; 
 5 M. & W. 645 ; 8 Blackf. 291 ; to make an 
 adjustment of all claims; 8 Wend. 494; 7 
 Watts, 716 ; 14 Cal. 399 ; 7 Ala. N. S. 800; 
 to accept bills ; 7 B. & C. 278. 
 
 Third parties dealing with an agent on the 
 basis of a written letter of attorney are not 
 prejudiced by any private instructions from the 
 principal to the agent, unless such instructions 
 are in some way referred to in the letter ; 15 
 Johns. 44. WHIre an agent is acting undra 
 such a written letter, it is the duty of third 
 persons! to examine the instrument ; Story, 
 Agency, § 72. A failure to do this is nedi- 
 gence, and precludes a recovery unless the 
 claim is based on fraud ; 1 Pet. 264 ; Whart. 
 Agency, § 227. 
 
 PRACTICE. The form, manner. 
 
 and 
 
 order of conducting and carrj'ing on suits or 
 prosecutions in the courts through their vanons 
 stages, according to the principles of law antt 
 the rules laid down by the respective courts. 
 
PRACTICE COURT 
 
 443 
 
 prjESUmptio juris 
 
 In its ordinary meaning it is to be distinguished 
 from the pleadings. The term applies to a 
 'distinct part of the proceedings of the court. 
 10 Jur. N. 8. 457. In a popular sense, the 
 business which an attorney or counsellor does : 
 as, A B has a good practice. 
 
 The books on practice are very numerous : 
 among the most popular are those of Tidd, 
 Chitty, Archbold, Sellon, Graham, Dunlap, 
 Caines, Troubat & Haly, Blake, Impey, Dan- 
 iell, Benedict, Colby, Curtis, Hall, Law, Day, 
 Abbott. 
 
 A settled, uniform, and long-continued 
 practice, without objection, is evidence of 
 what the law is ; and such praetice is based 
 on principles which are founded injustice and 
 convenience; 2 Russ. 19, 570; 2 Jac. 232; 
 5 Term, 380; 1 Y. & J. 167, 168; 2 C. & 
 M. 55; Ram, Judgm. c. 7. 
 
 With respect to criminal practice, it has 
 been forcibly remarked by a learned judge 
 that even where the course of practice m 
 criminal law has been unfavorable to parties 
 accused, and entirely contrary to the most ob 
 vious principals of justice and humanity, as 
 well as those of law, it has been held that 
 such practice constituted the law, and could 
 not be altered without the authority of par- 
 liament. Per Maule, J., Scott, n. c. 599, 
 600. 
 
 PRACTICE COURT. In English Law. 
 
 A court attached to the court of king's bench, 
 which heard and determined common matters 
 of business and ordinary motions for writs' of 
 mandamus, prohibition, etc. 
 
 It was usually called the bail court. It was 
 held by one of' the puisne justices of the king's 
 bench. 
 
 PRACTICES. A succession of acts of a 
 similar kind or in a like employment. 
 Webst. 
 
 PRSiCEPTORES (Lat.). Heretofore 
 masters in chancery were so called, as having 
 the direction of making out remedial writs. 
 Fleta, 76 ; 2 Reeve, Hist. Eng. Law, 251. 
 A species of benefice, so called from being 
 possessed by the principal templars (prcecep- 
 tores templi), whom the chief master by his 
 authority created. 2 Mon. Ang. 543. 
 
 r PRiECIPE, PRECIPE (Lat.). A slip 
 of paper upon which the particulars of a writ 
 are written. It is lodged in the office out of 
 which the required writ is to issue. Wharton, 
 Diet. A written order to the clerk of a court 
 to issue a writ. 
 
 PRECIPE QUOD REDDAT (Lat.). 
 Command him to return. An original writ, 
 of which prmcipe is the first word, command- 
 ing the person to whom it is directed to do a 
 thing or to show cause why he has not done 
 It. 3 Bla. Com. 274 ; Old N. B. 13. It is 
 as well applied to a writ of right as to other 
 writs of entry and possession. 
 
 PR.5!DA BBLLICA (Lat.). Booty. 
 
 Property seized in war. 
 
 (Lat.). 
 
 In Civil Law. 
 
 FRiEDIA 
 
 Lands. 
 
 Prcedia urbana, those lands which have 
 buildings upon them and are in the city. 
 
 Prcedia rusiica, those lands which are 
 without buildings or in the country. Voc. 
 Jur. Utr. 
 
 It indicates a more extensive domain than 
 fundus. Calvinus, Lex. 
 
 FR.3iDIAL. That which arises imme- 
 diately from the ground : as, grain of all 
 sorts, hay, wood, fruits, herbs, and the like. 
 
 FRSmiUM DOMINANS (Lat. the 
 ruling estate). In Civil Law. The name 
 given to an estate to which a servitude is due : 
 it is called the ruling estate. 
 
 PRiEDIUM RUSTICUM (Lat. a coun- 
 try estate). In Civil Law. By this is un- 
 derstood all heritages which are not destined 
 for the use of man's habitation : such, for 
 example, as lands, meadows, orchards, gar- 
 dens, woods, even though they should be 
 within the boundaries of a city. 
 
 PR.aiDIUM SERVIENS (Lat.). In 
 Civil Law. The name of an estate which 
 suffers or yields a service to another estate. 
 
 PR.aaDIUM URBANUM (Lat.). In 
 Civil Law. By this term is understood 
 buildings and edifices intended for the habita- 
 tion and use of man, whether they be built in 
 cities or whether they be constructed in the 
 country. 
 
 PR.ajPECTUS VIGILIUM (Lat.). In 
 Roman 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. 
 
 FR.S1MUNIRE (Lat.). In order to pre- 
 vent 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, punish- 
 ing certain acts of submission to the papal 
 authority therein mentioned. In the writ for 
 the execution of these statutes, the words 
 prcemunire facias (cause to be forewarned), 
 being used to command a citation of the party, 
 save not only to the writ, but to the offence 
 itself of maintaining the papal power, the 
 name of ^rcemumVe. Co. Litt. 129; Jacob, 
 Law Diet. 
 
 The penalties of praemunire were subse- 
 quently applied to other offences of various 
 kinds. Wharton, Law Diet. 
 
 PRiESUMPTIO JURIS (Lat.). In 
 Roman Law. A deduction from the exist- 
 ence of one fact as to the existence of another 
 which admits of proof to the contrary. A re- 
 buttable presumption. An intendment of law 
 which holds good until it is weakened by proof 
 or a stronger presumption. Best, Presump. 
 29. 
 
 PR.aiSUMPTIO JURIS ET DE JURE 
 (Lat.). In Romam Law. A deduction 
 drawn, by reason of some rule of law, from 
 
PR^TOR 
 
 444 
 
 PREAMBLE 
 
 the existence of one fact as to the existence 
 of another, so conclusively that no proof can 
 be admitted to the contrary. A conclusive 
 presumption. 
 
 PRiQTOR. In Roman Law. A muni- 
 cipal officer of Rome, so called because (prce- 
 iret populo) he went before or took precedence 
 of the people. 
 
 The consuls were at first called prators. Liv. 
 Hist. ili. 55. He was a sort of minister of jus- 
 tice, invested with certain legislative powers, es- 
 ppcially in regard to the forms or formalities of 
 legal proceedings. Ordinarily, he did not decide 
 causes as a judge, but prepared the grounds of 
 decision for the judge, and sent to him the ques- 
 tions to he decided between the parties. The 
 judge was always chosen by the parties, either 
 directly, or by rejecting, under certain rules and 
 limitations, the persons proposed to them by the 
 prcetor. Hence the saying of Cicero (pro Chi- 
 entis, 43) that no one could be judged except by 
 a judge of his own choice. There were several 
 kinds of oflScers called praetors. See Vicat, Voc. 
 
 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 ex- 
 pressed by the words do, dico, addieo, i. e. do I 
 give the action, dico I declare the law, I promul- 
 gate the edict, addieo I Invest the judge with the 
 rightof judging. There were certain cases which 
 he was bound to decide himself, assisted by a 
 council chosen by himself, — ^perhaps the decem- 
 virs. But the greater part of causes brought 
 before him he sent either to a judge, an arbi- 
 trator, or to recuperators {reeuperatores) , or to 
 the centumvirs, as before stated. Under the em- 
 pire, the powers of the prsetor passed by degrees 
 to the prefect of the prmtorium or the prefect 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. 
 
 PRAGMATIC SANCTION. In French 
 Law. An expression used to designate those 
 ordinances which concern the most important 
 object of the civil or ecclesiastical administra- 
 tion. Merlin, R6pert. ; 1 Fournel, Hist, des 
 Avocats,. 24, 38, 39. 
 
 In Civil Lavir. The answer given bj' 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. LeQons El. du Dr. Civ. Rom. § 53. 
 This differed from a rescript. 
 
 PRAYER. In Equity Practice. The 
 request in a bill that the court will grant the 
 aid which the petitioner desires. That part 
 of the bill which asks for relief. The word 
 denotes, strictly, the request, but is very com- 
 monly applied to that part of the bill which 
 contains the request. 
 
 Or Pkocess. That part of the bill which 
 asks that the defendant may be compelled to 
 appear and answer the bill, and abide the de- 
 termination of the court upon the subject. 
 
 It must contain the names of all the parties; 
 1 P. Wms. 593 ; 2 Dick. Ch. 707 ; 2 Johns. 
 Ch. 245; Coop. Eq. PI. 16; although they 
 are out of the jurisdiction; 1 Beav. 106; 
 Smith, Ch. Pr. 45 ; Mitf. Eq. PL 164. The 
 
 ordinary process asked for is a writ of sub 
 poena; Story, Eq. PI. § 44; and in case a 
 distringas against a corporation ; Coop. Ea 
 PL 16 ; or an injunction ; 2 S. & S, 219 ■ i 
 Sim. 50; is sought for, it should be included 
 in the prayer. 
 
 FoK Relief, is general, which asks for 
 such relief as the court inay grant ; or special 
 which states the particular form of relief de^ 
 sired; A special prayer is generally inserted 
 followed by a general prayer; 4 Madd. 408' 
 
 5 Ves. 495; 13 id. 119; 2 Pet. 69S; 16 id 
 195; 23 Vt. 247; 6 Gill, 105; 25Me. US^ 
 10 Rich. Eq. 53 ; 7 Ind. 661 ; 15 Ark. 555! 
 Unless the general prayer is added, if the de- 
 fendant fails in his special prayer he will not be 
 entitled to any relief; 2 Atk. 2 ; 1 Ves. 426- 
 12 id. 62; 3 Woodd. Lect. 55 ; 2R.L129J 
 iid. 173; 15 Ala. 9; except in case of 
 charities and bills in behalf of infants; 1 
 Atk. 6, 355; 1 Ves. 418; 18 id. 325; 1 
 Russ. 235; 2 Paige, Ch. 396. 
 
 A general prayer is sufficient for most 
 purposes ; and the special relief desired may 
 be prayed for at the bar ; 4 Madd. 408 ; 2 
 Atk. 3, 141 ; 1 Edw. 26 ; Story, Eq. PI. S 
 41 ; 31 N. H. 193 ; 2 Paine, 11 ; 3 Md. Ch. 
 Dec. 140, 466 ; 9 How. 390 ; 9 Mo. 201 ; 9 
 Gill &_ J. 80 ; see 13 Penn. 67 ; hut Tfbere 
 a special order and provisional process are re- 
 quired, founded on peculiar circumstances, s 
 special prayer therefor is generally inserted ; 
 
 6 Madd. 218 ; Hinde, Ch. Pr. 17 ; 3 Ind. 419. 
 
 Such relief, and such only, will be granted, 
 either under a special prayer, whether at bar; 
 
 3 Swanst. '208; 2 Ves. 299; Sid. 416; 4 
 Paige, Ch. 229 ; 25 Me. 153 ; 30 Ala. K. 8. 
 416 ; 32 id. 508 ; or in the bill ; 16 Tex. 399; 
 18 Ga. 492 ; 21 Penn. 131 ; or under a gen- 
 eral prayer, as the case as stated will justify; 
 
 7 Ired. Eq. 80 ; 4 Sneed, 623 ; 18 111. 142; 
 5 Wise. 117, 424; 24 Mo. 31 ; ? Ala. N. S. 
 193; 16 id. 793; 13 Ark. 183; 3 Barb. Ch. 
 613; 3 Graft. 618; 9 How. 390; and a bill 
 framed apparently for one purpose will not be 
 allowed to accomplish another, to the injury 
 of the defendant; 16 Tex. 399; 21 Penn. 
 131 ; 6 Wend. 63. See 13 Gratt. 653. 
 
 And, generally, the decree must conform 
 to the allegations and proof; 7 Wheat. 622; 
 10 id. 181 ; 19 Johns. 496 ; 2 Harr. Ch. 
 401; 1 H. & G. 11; 12 Leigh, 69; 1 
 Ired. Eq. 83 ; 5 Ala. 243 ; 8 id. 211 ; 14 id. 
 470 ; 6 Ala. N. 8. 518 ; 4 Bibb, 376 ; 5 Day, 
 223; 13 Conn. 146. But a special prayer 
 may be disregarded, if the allegations war- 
 rant under the general prayer ; 15 Ark. 555; 
 
 4 Tex. 20 ; 2 Cal. 269 ; 22 Ala. n. a. 646 ; 
 
 8 Humphr. 230 ; 1 Blackf. 305 ; the re- 
 lief granted must be consistent with the spe- 
 cial prayer ; 27 Ala. 507 ; 21 Penn. 131 ; 1 
 Jones, Eq. 100; 2Ga. 413; 14ic|.52; 1 
 Edw. Ch. 654 ; 9 Gill & J. 80 ; 4 Des. Eq. 
 530 ; 9 Yerg. 301 ; 1 Johns. Ch. HI ; 15 
 Ala. 9. 
 
 PREAMBLE. An introduction prefixed 
 to a statute, reciting the intention of tlie 
 
PREBEND 
 
 445 
 
 PRECEDENTS 
 
 legislature in framing it, or the evils which 
 led to its enactment. 
 
 A preamble is said to be the key of a statute, 
 to open the minds of the makers as to the mis- 
 chiefs which are to be remedied and the objects 
 which are to be accomplished by the provisions 
 of the statute ; Co. 4th Inst. 330 ; 6 Pet. 301. In 
 modern legislative practice, preambles are much 
 less used than formerly, and in some of the 
 United States are rarely, if ever, now inserted in 
 statutes. In the interpretation of a statute, 
 though resort may be had to the preamble, it 
 cannot limit or control the express provisions of 
 the statute; Dwarris, Stat. 504^508 ; Wilberforce, 
 Stat. Law, 277. Nor can it by implication en- 
 large what is expressly fixed ; 1 Story, Const, b. 
 3, c. 6 ; 3 M'Cord, 298 ; 15 Johns. 89 ; Busb. 131 ; 
 Davels, 38. 
 
 A recital inserted in a contract for the 
 purpose of declaring the intention of the 
 parties. 
 
 The facts recited in a preamble of a private 
 statute are not evidence, as between the per- 
 son for whose benefit the act passed and a 
 third person; 3 Litt. 472 ; 7 Hill, 80; but 
 the statement of legislative reasons in the pre- 
 amble will not affect the validity of an act ; 
 42 Conn. 583. 
 
 But a preamble reciting the existence of 
 public outrages provision against which is 
 made in the body of the act, is evidence of the 
 facts it recites; see 4 Maule & S. 532; 1 
 Phill. Ev. 239 ; 2 Russ. Cr. 720. See, gen- 
 erally, Erskine, Inst. 1. 1. 18; TouUier, 1. 3, 
 n. 318 ; 2 Belt, Suppl. Ves. 239 ; 4 La. 65 ; 
 Harrington, Stat. 353, 370 ; Wilb. Stat. 
 
 PREBEND. In Ecclesiastical Law. 
 The stipend granted to an ecclesiastic, in con- 
 sideration of officiating in the church. It is 
 in this distinguished from a canonicate, which 
 is a mere title and may exist without stipend. 
 The prebend may be a simple stipend, or a 
 stipend with a dignity attached to it, in which 
 ■case it has some jurisdiction belonging to it. 2 
 Burn, Eccl. Law, 88 ; Stra. 1082 ; 1 Term, 
 401 ; 2 id. 630; 1 "Wils. 206 ; Dy. 273 a; 7 
 B. & C. 113 ; 8 Bingh. 490 ; 5 Taunt. 2. 
 
 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. 
 
 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 ex- 
 piration. Wolff, Inst. § 333. 
 
 PRECARIUM (Lat.). The name of a 
 contract among civilians, by which the owner 
 of a thing, at the request of another person, 
 gives him a thing to use as long as the owner 
 shall please. Pothier, n. 87. SeeYelv. 172; 
 Cro.Jac. 236; 9 Cow. 687; Rolle, 128 ; Ba- 
 con, Ahr. Bailment (C) ; Erskine, Inst. 3. 1. 
 9; Wolff, Ins. Nat. S 333 ; Story, Bailm. SS 
 227,253*. . ^ ^^ 
 
 A tenancy at will is a right of this kind. 
 
 PRECATORY 'WORDS. Expressions 
 m a will praying or requesting that a thing 
 .shall be done. 
 
 Although recommendatory words used by 
 
 a testator, of themselves, seeru to leave the 
 devisee to act as he may deem proper, giving 
 him a discretion, as when a testator gives an 
 estate to a devisee, and adds that he hopes, 
 recommends, has a confidence, wish, or desire 
 that the devisee shall do certain things for the 
 benefit of another person, yet courts of equity 
 have construed such precatory expressions as 
 creating a trust ; 8 Ves. Ch. 380 ; 18 id. 41 ; 
 Bacon, Abr. Legacies (B) ; 98 Mass. 274 ; 35 
 Vt. 173; 4 Am. L. Rev. 617. See, contra, 
 20 Penn. 268; 1 McCart. 397; 2 Story, Eq. 
 Jur. § 1069. 
 
 But this construction will not prevail when 
 either the objects to be benefited are imper- 
 fectly described, or the amount of property 
 to which the trust should attach is not sufla- 
 ciently defined ; 1 Bro. C. C. 142 ; 1 Sim. 
 542, 556. See 2 Story, Eq. Jur. § 1070; 
 Lewin, Trusts, 77 ; 4 Bouvier, Inst. n. 3953. 
 
 PRECEDENCE. The right of being first 
 placed in a certain order, — the first rank being 
 supposed the most honorable. 
 
 In this country no precedence is given by 
 law to men. 
 
 Nations, in their intercourse with each 
 other, do not admit any precedence : hence, 
 in their treaties, in one copy one is named 
 first, and the other in the other. In some 
 cases of officers when one must of necessity 
 act as the chief, the oldest in commission will 
 have precedence : as, when the president of a 
 court is not present, the associate who has the 
 oldest commission will have a precedence; or 
 if their commissions bear the same date, then 
 the oldest man. 
 
 In the army and navy there is an order of 
 precedence which regulates the officers in 
 their command. See Rank. 
 
 For rules of precedence in England, see 
 W^hart. Law Die. 
 
 PRECEDENTS. In Practice. Legal 
 acts or instruments which are deemed worthy 
 to serve as rules or models for subsequent 
 cases. 
 
 The word is similarly applied In respect to 
 political and legislative action. In the former 
 use, precedent is the word to designate an ad- 
 judged case which is actually followed or sanc- 
 tioned by a court in subsequent cases. An ad- 
 judged case may be of any degree of weight, 
 from that of absolute conclusiveness down to the 
 faintest presumption : and one which is in fact 
 disregarded is said never to have become a prece- 
 dent. In determining whether an adjudication is 
 to be followed as a precedent, the following con- 
 siderations are adverted to. First, the justice of 
 the principle which it declares, and the reason- 
 ableness of its application. Hob. 270. If a pre- 
 cedent is to be followed because it is a prece- 
 dent, even when decided against an established 
 ruleof law, there can be no possible correction 
 of abuses, because the fact of their existence 
 would render them above the law. It is always 
 safe to rely upon principles. See 16 Viner, Abr. 
 499 ; 2 Swanst. 163 ; 3 J. & W. 318 ; 3 Ves. 527 ; 
 2 Atk. 559 ; 2 P. Wms. 258 ; 2 Bro. C. C. 86 ; 1 
 Tex. 11 ; 2 Evans, Poth. 377, where the author 
 argues against the policy of making precedents 
 binding when contrary to reason. See, also, 1 
 Kent, 475-477 ; Livermore, Syst. 104, 105 ; Gresl. 
 
PRECEPT 
 
 446 
 
 PRE-EMPTION 
 
 Eq. Ev. 800; 16 Johns. 402; 20 «. 722; Cro. 
 Jac. 527 ; 33 Hen. VII. 41 ; Jonee, Bailm. 46 ; 
 1 Hill, N. Y. 438 ; 9 Barb. 544 ; 50 N. T. 451 ; 
 Wells, Res. Adj. & St. Dec.; Peinciple ; Rea- 
 son ; Stare Decisis. 
 
 According to Lord Talbot, it is " much better 
 to stick to the known general rules than to fol- 
 low any one particular precedent which may be 
 founded on reasons unknown tons." Cas. Talb. 
 26. Blackstone, 1 Com. 70, says that a former 
 decision is, in general, to be followed, unless 
 " manifestly absurd or unjust ;" and in the lat- 
 ter ease it is declared, when overruled, not that 
 the former sentence was bad law, but that it was 
 not law. If an adjudication is questioned in 
 these respects, the degree of consideration and 
 deliberation upon which it was made ; 4 Co. 94 ; 
 the rank of the court, as of inferior or superior 
 jurisdiction, which established it, and the length 
 of time during which it has been acted on as a rule 
 of property, are to be considered. The length 
 of time which a decision has stood unques- 
 tioned is an important element ; since where a rule 
 declared to be law, even by an inferior tribunal, 
 has been habitually adopted and acted upon by 
 the community, and becomes thus imbedded in 
 the actual affairs of men, it is frequently better 
 to enforce it as it is, instead of allowing it to be 
 re-examined and unsettled. It is said that In or- 
 der to give precedents binding effect there ihust 
 be a current of decisions ; Cro. Car. 528 ; Cro. 
 Jac. 386 ; 8 Co. 163 ; 10 Wise. 370 ; and even 
 then, injustice in the rule often prevails overthe 
 antiquity and frequency of its adoption, and in- 
 duces the court to overrule it. But this is to be 
 very cautiously done where it' is a rule of pro- 
 perty, or wherever a departure from it would un- 
 justly affect vested rights ; 8 Cal. 188 ; 47 Ind. 
 286 ; 30 Miss. 256 ; 23 Wend. 340. 
 
 Written forms of procedure which have 
 been sanctioned by the courts or by long 
 professional usage, and are commonly to be 
 followed, are designated precedents. Steph. 
 PI. 392. And this terln, when used as the 
 title of a law-book, usually denotes a collec- 
 tion of such forms. 
 
 PHBCEPT (Lat. precipio, to command). 
 A writ directed to the sheriff, or other oificer, 
 commanding him to do something. 
 
 "PRECINCT. The district for which a 
 high or petty constable is appointed is, in 
 England, called a precinct. Wilcox, Const. 
 xii. 
 
 In daytime, all persons are bound to re- 
 cognize a constable acting within his own pre- 
 cinct ; after night, the constable is required 
 to make himself known ; and it is, indeed, 
 proper he should do so at all times ; id. n. 
 265, p. 93. 
 
 PRECIPTIT. In French Law. An ob- 
 ject which is ascertained by law or the agree- 
 ment of the parties, and which is first to be 
 taken out of property held in common by 
 one having a right, before a partition takes 
 place. 
 
 The preciput is an advantage or a principal 
 part to which some one is entitled proecipium 
 jus, which is the origin of the word preciput. 
 "balloz. Diet.; Pothier, Obi. By preciput is 
 also understood the right to swe out the pre- 
 ciput. 
 
 PRECLTTOI NOW (Lat.). In Plead- 
 ing. A technical allegation contained in a 
 replication which denies or confesses and 
 avoids the plea. 
 
 It is usually in the following form : "And 
 the said A B, as to the plea of the said C D 
 by him secondly above pleaded, says that he' 
 the said A B, by reason of any thing by the 
 said C D in that plea alleged, ought not to be 
 barred from having and maintaining his afore- 
 said action thereof against the said C D be- 
 cause he says that," etc. 2 Wils 42- i 
 Chitty, PI. 573 ; Steph. PI. 398. ' 
 
 FRECOGNITIOH. In Scotch Law. 
 The examination of witnesses who were pre- 
 sent at the commission of a criminal act, upon 
 the special circumstances attending it, in 
 order to know whether there is ground for a 
 trial, and to serve for direction to the prose- 
 cutor. But the persons examined may insist 
 on having their declaration cancelled before 
 they give testimony at the trial. Erskine, 
 Inst. 4. 4. n. 49. 
 
 PRECONTRACT. An engagement en- 
 tered into by a person which renders him un- 
 able to enter into another ; as, a promise or 
 covenant of marriage to beiad afterwards. 
 When made per verba de presenti, it is in 
 fact a marriage, and in that case the party 
 making it cannot marry another person ; Bish. 
 Mar. & D. § 53. 
 
 PREDECESSOR. One who has pre- 
 ceded another. 
 
 This term is applied in particular to corpora- 
 tors who are now no longer such, and whose 
 rights have been vested in their successor ; the 
 word ancestor is more usually applicable to com- 
 mon persons. The predecessor in a corporation 
 stands in the same relation to the successor that 
 the ancestor does to the heir. ' 
 
 One who has filled an oflSce or station before 
 the present incumbent. 
 
 PRE-EMPTION. In International 
 Iiaw. The right of pre-emption- 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 Chitty, Com. Law, 
 103 ; 2 Bla. Com. 287. 
 
 This right is sometimes regulated by treaty. 
 In the treaty made between the United 
 States and Great Britain, bearing date the 
 ] 9th day of November, 1794, ratified in 1795, 
 it was provided, after mentioning that the 
 usual munitions of war, and also naval ma- 
 terials, should be. confiscated as contraband, 
 that, "whereas the difficulty of a^ecing on 
 precise casks in which alone provisions and 
 other articles not generally contraband may 
 be regarded as ^uch, renders it expedient to 
 provide against the inconveniences and mis- 
 understandings 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 com- 
 
PKE-EMPTION-RIGHT 
 
 447 
 
 PREGNANCY 
 
 pletely indemnified; and the captors, or, in 
 their default, the government under whose 
 authority they act, Siall 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. 
 
 PRE-EMPTION-RIGHT. The right 
 given to settlers upon the public lands of the 
 United States to purchase them at a limited 
 price in preference to others. 
 
 It gives a right to the actual settler who is 
 a citizen of the United States, or who has 
 filed a declaration of intention to become such, 
 and has entered and occupied without title, to 
 obtain a title to a quarter-section at the mini- 
 mum price fixed by law, upon entry in the 
 proper office and payment, to the exclusion 
 of all other persons. It is an equitable title ; 
 15 Miss. 780 ; 9 Mo. 683 ; 15 Pet. 407 ; and 
 does not become a title at law to the land till 
 entry and payment ; 2 Sandf. Ch. 78 ; 11 111. 
 529; 15 id. 131. It may be transferred by 
 deed; 9 111. 454; 16 id. 131; and descends 
 to the heirs of an intestate ; 2 Pet. 201 ; 12 
 Ala. N. a. 322." See 2 Washb. K. P. 532 ; 
 Eev. Stat. U. S.; Zab. Land Law. 
 
 PREFECT. In French Law. A chief 
 officer invested with the superintendence of 
 the administration of the laws in each depart- 
 ment. Merlin, Rfepert. 
 
 PREFER. To bring any matter before a 
 court: as,— A preferred a charge of assault 
 against B. 
 
 To apply or move: thus,^"to prefer for 
 costs." Abb. Law Diet. 
 
 PREFERENCE. The paying or securing 
 to one or more of his creditors, by an insolvent 
 debtor, the whole or a part of their claim, to 
 the exclusion of the rest. The right which a 
 creditor has acquired over others to be paid 
 first out of the assets of his debtor : as, when 
 a creditor has obtained a judgment against 
 his debtor which binds the latter's land, he 
 has a preference. 
 
 A failing creditor may prefer any one credi- 
 tor to the exclusion of others; 12 Pet. 178; 
 38Penn. 446; 7 Hun, 146 ; 15 Mo. 378; 48 
 Ala. 377. In some states, assignments for 
 creditors may create preferences in favor of 
 certain creditors or classes of creditors. 
 
 Voluntary preferences are, however, for- 
 bidden by the insolvent laws of some of the 
 states, and are in such cases void when made 
 in a general assignment for the benefit of 
 creditors ; e. g. New Hampshire, Connecticut, 
 New Jersey, Pennsylvania, Iowa, Ohio. See 
 Insolvent ; Priority ; Moses, Insolv. 
 Laws; Burr. Assignments. 
 
 , PREGNANCY. In Medical Jurls- 
 piudence. The state of a female who has 
 within her ovary, or womb, a fecundated 
 germ, which gradually becomes developed in 
 the latter receptacle. Dunglison, Med. Diet. 
 Pregnancy. 
 
 The signs of pregnancy. These acquire 
 a great importance from their connection 
 with the subject of concealed, and also of 
 pretended, pregnancy. The first may occur 
 in order to avoid disgrace, and to accomplish 
 in a secret manner the destruction of off- 
 spring. The second may be attempted to 
 gratify the wishes of a husband or relations, 
 to deprive the legal successor of his just 
 claims, to gratify avarice by extorting money, 
 and to avoid or delay execution. 
 
 These signs and indications have a two- 
 fold division. First, those developed through 
 the general system, and hence termed con- 
 stitutional ; second, those developed through 
 the uterine system, termed local or sensible. 
 
 The first, or constitutional, indications 
 xegaiA— first, the mental phenomena, or 
 change wrought in the temperament of the 
 mother, evidenced by depression, despond- 
 ency, rendering her peevish, irritable, capri- 
 cious, and wayward ; sometimes drowsiness 
 and occasionally strange appetites and anti- 
 pathies are present. 
 
 Second, the countenance exhibits languor, 
 and what the French writers term decompo- 
 sition of features, — the nose becoming sharper 
 and more elongated, the mouth larger, the 
 eyes sunk and surrounded with a brownish 
 or livid areola, and having a languid expres- 
 sion. 
 
 Third, the vital action is increased; a 
 feverish heat prevails, especially in those of 
 full habit and sanguine temperament. The 
 body, except the breasts and abdomen, some- 
 times exhibits emaciation. There are fre- 
 quently pains in the teeth and face, heart- 
 burn, increased discharge of saliva, and cos- 
 tiveness. 
 
 Fourth, the mammary sympathies give 
 enlargement and firmness to the breasts ; but 
 this may be caused by other disturbances of 
 the uterine system. A more certain indica- 
 tion is found in the areola, which is the 
 dark-colored circular disk surrounding the 
 nipple. This, by its gradual enlargement, 
 its constantly deepening color, its increasing 
 organic action evidenced by its raised appear- 
 ance, turgescence, and glandular follicles, is 
 justly regarded as furnishing a very high de- 
 gree of evidence. 
 
 Fifth, irritability of stomach, evidenced 
 by sickness at the stomach, usually in the 
 early part of the day. 
 
 Sixth, suppression of the menses, or monthly 
 discharge arising from a secretion from the 
 internal surface of the uterus. This sup- 
 pression, however, may occur from diseases 
 or from a vitiated action of tbe uterine system. 
 
 The second, termed local or sensible signs 
 and indications, arise mainly from the devel- 
 opment of the uterine system consequent upon 
 impregnation. This has reference — 
 
 First, to the change in the uterus itself. 
 The new principle introduced causes a deter- 
 mination of blood to that organ, which de- 
 velops it first at its fundus, second in its 
 body, and lastly in its cervix or neck. The 
 
PREGNANCY 
 
 448 
 
 PREGNANCY 
 
 latter constantly diminishes until it has become 
 almost wholly absorbed in the body of the 
 uterus. The os uteri in its unimpcegnated state 
 i'eels firm, with well-defined lips or margins. 
 After impregnation the latter becomes tumid, 
 softer, and more elastic, the orifice feeling 
 circular instead of transverse. 
 
 Second, to the state of the umbilicus, which 
 is first depresssd, then pushed out to a level 
 with the surrounding integuments, and at last, 
 towards the close of the period, protruded 
 considerably above the surface. 
 
 Third, to the enlargement of the abdomen. 
 This commences usually by the end of the 
 third month, and goes on increasing during 
 the period of pregnancy. This, however, 
 may result from morbid conditions not affect- 
 ing the uterus, such as disease of the liver, 
 spleen, ovarian tumor, or ascites. 
 
 Fourth, to quickening, as rendered evident 
 by the foetal motions. By the former we un- 
 derstand the feeling by the mother of the self- 
 induced motion of the foetus in utero, which 
 occurs about the middle of the period of preg- 
 nancy. But as the testimony of the mother 
 <!annot be always relied upon, her interest be- 
 ing sometimes to conceal it, it is important to 
 inquire what other means there may be of as- 
 certaining it. These movements of the fetus 
 may sometimes be excited by a sudden ap- 
 plication of the hand, having been previously 
 rendered cold by immersion in water, on to 
 the front of the abdomen. Another method 
 is to apply one hand against the side of the 
 uterine tumor, and at the same time to im- 
 press the opposite side quickly with the 
 fingers of the other hand. 
 
 But the most reliable means consists in the 
 application of auscultation, or the use of the 
 stethoscope. This is resorted to for the pur- 
 pose of discovering — 
 
 First, the souffle, or placental sound. 
 
 Second, the pulsations of the foetal heart. 
 
 The first is a low, murmuring or cooing 
 sound, accompanied by a slight rushing 
 noise, but without any sensation of impulse. 
 It is synchronous with the pulse of the 
 mother, and varies not in its situation during 
 the course of the same pregnancy. Its seat 
 in the abdomen does vary in proportion to the 
 progressive advance of the pregnancy, and it 
 is liable to intermissions. 
 
 The second is quite different in its charac- 
 teristics. It is marked by double pulsations, 
 and hence very rapid, numbering from one 
 hundred and twenty to one hundred and sixty 
 in a minute. These pulsations are not heard 
 until the end of the fifth month, and become 
 more distinct as pregnancy advances. Their 
 source being the foetal heart, their seat will 
 vary with the varying position of the foetus. 
 Auscultation, if successful, not only reveals 
 the fact of pregnancy, but also the life of the 
 fcetus. 
 
 There is still another indication of preg- 
 nancy ; and that is a bluish tiift of the vagina, 
 extending from the os externum to the os 
 uteri. It is a violet color, like lees of wine, 
 
 and is caused by the increased vascularity ottlie 
 genital system consequent upon conception 
 But any similar cause other than conception 
 may produce the same appearance. 
 
 Independent of what may be found on tills 
 subject in works on medicarjurisprudence and 
 midwifery, that of Dr. Montgomery on the 
 Signs and Indications of Pregnancy is the 
 fullest and most reliable-. 
 
 The laws relating to pregnancy concern the 
 circumstances under and the manner In which 
 the fact is ascertained. There are two cases 
 where the fact whether a woman is or has 
 been pregnant is important to ascertain. The 
 one is when it is supposed she pretends preg. 
 nancy, and the other when she Is charged 
 with concealing it. 
 
 Pretended pregnancy may arise from two 
 causes : the one when a widow feigns herself 
 with child in order to produce a supposititious 
 heir to the estate. The presumptive heir may 
 in such case have a writ de ventre inspiciendo, 
 by which the sheriff is commanded to have 
 such made, and the fact determined whether 
 pregnancy exists or not, by twelve matrons, 
 in the presence of twelve knights. If the re- 
 sult determine the fact of pregnancy, then she 
 is to be kept under proper guard until she is 
 delivered. If the pregnancy be negatived, 
 the presumptive heir is admitted to the in- 
 heritance. 1 Bla. Com. 456; Cro. Ellz. 
 566; 4 Bro. C. C. 90; 2 P. Wms. 591; 
 Cox, C. C. 297. A practice quite similar pre- 
 vailed in the civil law. 
 
 The second cause of pretended pregnancy 
 occurs when a woman is under sentence of 
 death for the commission of a crime. At 
 common law, in case this plea be made be^ 
 fore execution, the court must direct a jury 
 of twelve matrons, or discreet women, to as- 
 certain the fact, and if they bring in their 
 verdict quick with child (for barely with cUld, 
 unless it be alive in the womb, is not suffi- 
 cient), execution shall be stayed, generally 
 till the next session of the court, and so from 
 session to session, till either she is dellTere4 
 or proves by the course of nature not to have 
 been with child at all ; 4 Bla. Com. 394, 395; 
 1 Bay, 497. 
 
 In Scotland, all that is necessary to be 
 proved, to have execution delayed, is the 
 fact of pregnancy, no difference being made 
 whether she be quick with child or not. This 
 is also the provision of the French penal code 
 upon this subject. In this country, there is 
 little doubt that clear proof that the woman 
 was pregnant, though not quick with child, 
 would at common law be sufiScient to obtain 
 a respite of execution until after dellve^. 
 The difficulty lies in making the ^roof _suffi- 
 ciently clear, the signs and indications being 
 all somewhat uncertain, some of them want 
 ing, aU liable to variation, and conviction o^ 
 the fact only fastening upon the mind when a 
 number of them, inexplicable upon any other 
 hypothesis, concur in that one result. 
 
 It has been recently held that pregnancy at 
 the time of marriage by another than the bus- 
 
PREGNANCY 
 
 449 
 
 PREMEDITATION 
 
 band is sufficient ground for divorce, provided 
 the pregnancy was unknown to the husband 
 and there was no reasonable ground of suspi- 
 cion by him ; 25 Alb. L. J. 383. This can 
 hardly be laid down as an absolute rule; 
 Bish. Mar. & D. 6 180. 
 
 Pregnancy is seldom concealed except for 
 the crfminal purpose of destroying the fife of 
 the fcetus in utero, or of the child immediately 
 upon its birth. Infant life is easily extin- 
 guished ; while proof of the unnatural crime 
 IS hard to be furnished. This has led to the 
 passage of laws, both in England and in this 
 country, calculated to facilitate the proof and 
 also to punish the very act of concealment of 
 pretmancy and death of the child when if born 
 alive it would have been illegitimate. In Eng- 
 land, the very stringent act of 21 Jac. I. c. 27, 
 required that any mother of such child who had 
 endeavored to conceal its birth should prove 
 by at least one witness that the child was ac- 
 tually born dead ; and for want of such proof 
 it arrived at the forced conclusion that the 
 mother had murdered it. This cruel law was 
 essentially modified, in 1803, by the passage 
 of an act declaring that women indicted for 
 the murder of bastard children should be 
 tried by the same rules of evidence and pre- 
 sumption as obtain in other trials of murder. 
 
 The early legislation of Pennsylvania was 
 characterized by the same severity. The act 
 of May 31, 1781, made the concealment of 
 the death of a bastard child conclusive evi- 
 •dence to convict the mother of murder. This 
 was repealed by the act of 5th April, 1790, s. 
 ^, which declared that the constrained pre- 
 sumption that the child whose death is con- 
 cealed was therefore murdered by the mother 
 «hall not be sufficient to convict the party in- 
 dicted, without probable presumptive proof 
 is given that the child was bom alive. The 
 law was further modified by the Act of 22d 
 April, 1794, s. 18, which declares that the 
 concealment of the death of any such child 
 shall not be conclusive evidence to convict the 
 party indicted for the murder of her child, 
 unless the circumstances attending it be such 
 as shall satisfy the mind of the jury that she 
 did wilfully and maliciously destroy and take 
 away the life of such a child. The act also 
 punishes the concealment of the death of a 
 "bastard child by fine and imprisonment. The 
 act of 31 March, 1860, Pur. Dig. p. 341, § 
 136, now governs in Pennsylvania. It makes 
 the concealment of the death of an illegiti- 
 mate child a substantive offence punishable by 
 ine and imprisonment, and leaves the ques- 
 tion of the murder of the child by its mother, 
 subject to the mode of trial and punishment as 
 ordinary cases of murder. Counts for murder 
 and concealing the death of thechild may, how- 
 ever, be united in the same indictment. The 
 itatesof New York, Massachusetts, Vermont, 
 Connecticut, New Jersey, New Hampshire, 
 Georgia, Dlinpis, and Michigan, all have 
 enactments on this subject, — the punishment 
 prescribed being, generally, fine and imprison- 
 VOL. if— 29 
 
 ment. For duration of pregnancy, see Ges- 
 tation. 
 
 PREGNANT. See Affirmative Preg- 
 nant ; Negative Pregnant. 
 
 FREJUDICIj (Lat. prce, before, judi- 
 care, to judge). 
 
 A forejudgment. A leaning towards one 
 side of a cause for some reason other than its 
 justice. 
 
 PRELATE. The name of an ecclesias- 
 tical officer. There are two orders of pre- 
 lates : the first is composed of bishops, and, 
 the second, of abbots, generals of orders, 
 deans, etc. 
 
 PRELEVEMENT. In French Law. 
 The portion which a partner is entitled to take 
 out of the assets of a firm before any division 
 shall be made of the remainder of the assets 
 between the partners. 
 
 The partner who is entitled to a prfelfeve- 
 ment is not a creditor of the partnership : on 
 the contrary, he is a part-owner ; for, if the 
 assets should be deficient, a creditor hag the 
 preference over the partner ; on the other 
 hand, should the assets yield any profit, the 
 partner is entitled to his portion of it, whereas 
 the creditor is entitled to no part of it, but he 
 has a right to charge interest when he is in 
 other respects entitled to it. 
 
 FRELIMINAR'7. Something which pre- 
 cedes : as, preliminaries of peace, which are 
 the first sketch of a treaty, and contain the 
 principal articles on which both parties are 
 desirous of concluding, and which are to serve 
 as the basis of the treaty. 
 
 PRELIMINARY PROOF. In In- 
 surance. Marine policies in the United 
 States generally have a provision that a loss 
 shall be payable in a certain time, usually 
 sixty days, "after proof," meaning "pre- 
 liminary proof," which is not particularly 
 specified. Fire policies usually specify the 
 preliminary proof. Life policies, like marine, 
 usually make the loss payable sixty or ninety 
 days after notice and proof; 2 Phill. Ins. ch. 
 XX.; 11 Johns. 241; 16 Barb. 171; 31 Me. 
 325; 4 Mass. 88; 6 Gray, 396 ; 6 Cush. 342 ; 
 6 Harr. & J. 408 ; 3 Gill, 276 ; 2 Wash. Va. 
 61; 23 Wend. N. Y. 43 ; 1 La. 216; 11 
 Miss. 278 ; Stew. Low. C. 354 ; 14 Mo. 220 ; 
 10 Pet. 507; 6111.434; 13 irf. 676 ;"5 Sneed, 
 139; 2 Ohio, 452; 6 Ind. 137; 30 Vt. 659. 
 
 PREMEDITATION. A design formed 
 to commit a crime or to do some other thing 
 before it is done. 
 
 Premeditation differs essentially from will, 
 which constitutes the crime; because It supposes, 
 besides an actual will, a deliberation, and a con- 
 tinued persistence ■which lniica,te more perversity. 
 The preparation of arms or other instruments re- 
 quired for the execution of the crime are indi- 
 cations of a premeditation, but are not absolute 
 proof of it ; as these preparations may have been 
 intended for other purposes, and then suddenly 
 changed to the performance of the criminal act. 
 Murder by poisoning must of necessity be done 
 with premeditation. 
 
PREMISES 
 
 450 
 
 PREROGATIVE COURT 
 
 PREMISES (Lat. prce, before, mittere, to 
 put, to send). 
 
 ■ That which is put before. The introduc- 
 tion. Statements previously made. See 1 
 East, 456. 
 
 In Conveyancing. That part of a deed 
 ■which precedes the habendum, 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 considera- 
 tion on which it is made is set down and the 
 certainty of the thing granted. 2 Bla. Com. 
 298 ; 8 Mass. 1 74 ; 6 Conn. 289. 
 
 In Equity Pleading. The stating part 
 of a 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. Cooper, Eq. 
 Pi. 9 ; Barton, Suit in Eq. 27 ; Mitf. Eq. PI. 
 43; Story, Eq. PI. §27. 
 
 Every material fact to which the plaintifl 
 intends to offer evidence must be stated in the 
 premises ; otherwise, he will not be permitted 
 to offer or require evidence of such fact ; 1 
 Bro. C. C. 94 ; 3 Swanst. 472 ; 3 P. Wms. 
 276 ; 2 Atk. 96 ; 1 Vern. 483 ; 11 Ves. 240; 
 2 Hare, 264 ; 6 Johns. 565 ; 9 6a. 148. 
 
 In Estates. Lands and tenements. 1 
 East, 453 : 3 Maule & S. 169. 
 
 PREMIUM. In Insurance. The con- 
 sideration for a contract of insurance. 
 
 A policy of insurance always expresses the 
 consideration called the premium, which is a 
 certain amount or a certain rate upon the 
 value at risk, paid wholly in cash, or partly 
 so and partly by promissory note or other- 
 wise; 2 Parsons, Marit. Law, 182. By the 
 charters of mutual fire insurance companies, 
 the insured building is usually subject to a 
 lien for the premium ; 1 Phill. Ins. ch. vi. ; 19 
 Miss. 53 ; 21 How. 35. The premium may 
 be payable by service rendered ; 5 Ind. 96. 
 
 In life insurance, the premium is usually 
 payable periodically ; 18 Barb. 541 ; and the 
 continuance of the risk is usually made to de- 
 pend upon the due payment of a periodical 
 premium ; 2 Dutch. 268. But if the practice 
 of the cofupany and its course of dealings with 
 the insured, and others known to him, have 
 been such as to induce a belief that so much 
 of the contract as provides for a forfeiture 
 upon non-payment at a fixed time will not be 
 insisted on, the company will not be allowed to 
 set up such a forfeiture, as against one in whom 
 their conduct has induced such belief ; May, 
 Insurance, § 361 ; 95 U. S. 380. So far as 
 the agreed risk is not run in amount or time 
 under a marine policy, the whole or a propor- 
 tional stipulated or customary part of the 
 premium is either not payable, or, if paid, is 
 to be returned unless otherwise agreed ; 2 
 Phill. Ins: c. xxii. ; 2 Pars. Marit. Law, 
 185; 16 Barb. 280; 7 Gray, 246. 
 
 PREMIUM NOTE. In Inauranc. 
 A note given m place of payment of the 
 whole or a part of the premium. 
 
 The premium, or a part of it, is not unfre- 
 quently paid wholly or in part by a promin- 
 sory note, with a stipulation in the policv 
 that the unpaid amount shall be set off and 
 deducted in settling for a loss ; 1 Phill. Jng t 
 51. It is also usuflly collaterally secured by 
 a stipulation in the policy for the forfeiture rf 
 the policy by non-payment of the premium 
 note, or any amount due thereon by assess- 
 ment or otherwise; 19 Barb. 440- 2i id 
 605 ; 25 id. 109 ; 12 K. Y. 477; 2 Ind. 66 ■ 
 3 Gray, 215; 6 id. 288; 36 id. 252; 19 Miss' 
 135 ; 35 N. H. 328 ; 29 Vt. 23 ; 2 N h' 
 198 ; 32 Penn. 75 ; 34 Me. 451. 
 
 PREMIUM PUDICITIiB (Lat. the 
 price of chastity). The consideration of » 
 contract by which a man promises to pay to 
 a woman with whom he has illicit intercomse 
 a certain sum of money. 
 - When the contract is made as the payment 
 oi past cohabitation, as between the parties, 
 it is good, and will be enforced, if under seal, 
 but such consideration will not support a parol 
 promise ; 3 Q. B. 483 ; 1 Story, Contr. § 
 670. It cannot be paid on a deficiency of as- 
 sets, until all creditors are paid, though jt has 
 a preference over the heir, next of kin, or de- 
 visee. If the contract be for future eohabita- 
 tion, it is void. 1 Story, Eq. Jur. § 296 ; 5 
 Ves. 286 ; 11 id. 535 ; 8 E. & B. 642; 2 P. 
 Wms. 432; 1 W. Blackst. 617; 3 Burr. 
 1568; 1 Fonbl. Eq. b. 1, c. 4, § 4, and 
 notes s and y ; 1 Ball & B. 360 ; Boberts, 
 Fraud. Conv. 428 ; Cas. Talb. 153, and the 
 cases there cited ; 6 Ohio, 21 ; 5 Cow. 253 ; 
 Harp. 201 ; 3 T. B. Monr. 36; 11 Mass. 
 368; 2 N. §M'C. 251. 
 
 PRENDER, PRENDRE (L. Fr.). 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. See A Prendke ; Gale & W. 
 Easem.; Washb. Easem. 
 
 FRENOMEN (Lat.). The first or Chris- 
 tian name of a person. Benjamin is the 
 prenomen of Benjamin Franklin. See Cas. 
 Hardw. 286 ; 1 Tayl. 148. 
 
 PREPENSE. Aforethought. See 2 
 Chitty, Cr. Law, *784. 
 
 PREROGATIVE. In Civil Law. The 
 privilege, pre-eminence, or advantage which 
 one person has over another : thus, a person 
 vested with an ofiice is entitled to ail me 
 rights, privileges, prerogatives, etc. which be- 
 long to it. , 
 
 In English Law. The royal prerogaWe 
 is an arbitrary power vested in the executive 
 to do good and not evil. Rutherforth, Inst. 
 279 ; Co. Litt. 90 ; Chitty, Prerog.; Bason, 
 Abr. 
 
 PREROGATIVE COURT. In Eng- 
 Ush Law. An ecclesiastical court held m 
 each of the two provinces of York mm 
 
PREROGATIVE WRITS 
 
 431 
 
 PRESENCE 
 
 Canterbury before a judge appointed by the 
 archbishop of the province. 
 
 Formerly in this court testaments were 
 proved, and administrations granted where a 
 decedent left chattels to the value of five 
 pounds (bona notabilia) in two distinct dio- 
 ceses or jurisdictions within the province, and 
 all causes relating to the wills, administrations, 
 or legacies of such persons were originally 
 cognizable. This jurisdiction was transferred 
 to the couVt of probate by 20 & 21 Vict. c. 
 77, § 4, and 21 & 22 Vict. c. 95, and now, by 
 the Judicature Acts, it is included in the su- 
 preme court of judicature. 
 
 An appeal lay formerly from this court to 
 the king in chancery, by stat. 25 Hen. VIII. 
 c. 19, afterwards to the privy council, by 
 stat. 2 & 3 Will. IV. c. 92. 2 Steph. Com. 
 237, 238 ; 3 Bla. Com. 65, 66. 
 
 In American ItaMr. A court having a 
 jurisdiction of probate matters, in the state of 
 New Jersey. 
 
 PREROGATIVE 'WRITS. Processes 
 issued by an exercise of the extraordinary 
 power of the crown on proper eaus^ shown. 
 They are the writs of procedendo, mandamus, 
 prohibition, quo warranto, habeas corpus, and 
 certiorari; 3 Steph. Com. 629. They differ 
 from other writs in that they are never issued 
 except in the exercise of the judicial dis- 
 cretion, and are directed generally not to the 
 sheriff, but to the parties sought to be affected 
 themselves; 3 Bla. Com. 132. 
 
 PRESCRIBABLE. To which i> right 
 may be acquired by prescription. 
 
 PRESCRIPTION. A mode of acquiring 
 title to incorporeal hereditaments by imme- 
 morial or long-continued enjoyment. 
 
 The distinction between a prescription and a 
 emlam is that a custom is a local usage and not 
 annexed to a person ; a prescription is a personal 
 usage confined to the claimant and hie ancestors 
 or grantors. The theory of prescription was 
 that the right claimed must have been enjoyed 
 beyond the period of the memory of man, which 
 for a long time, in England, went back to the 
 time of Richard I. To avoid the necessity of 
 proof of such long duration, a custom arose of 
 allowing a presumption of a grant on proof of 
 usage for a long term of years. 
 
 The length of time necessary to raise a strict 
 prescription was limited by statute 32 Hen. 
 VIII. at sixty years ; 8 Pick. 308 ; 7 Wheat. 
 59; 4 Mas. 402; 2 Greenl. Ev. § 539. See 
 9 Cush. 171 ; 29 Vt. 43 ; 24 Ala. N. s. 130 ; 
 29 Penn. 22. Grants of incorporeal heredit- 
 aments are presumed upon proof of enjoy- 
 ment of the requisite character for a period 
 of years i.>qual to that fixed by statute as the 
 period of limitation in respect of real actions ; 
 3 Kent, 442; 12 Wend. 330; 19 id. 365 ; 27 
 Vt. 265; 2 Bail. 101 • 4 Md. Ch. Dec. 386 ; 
 13 N. H. 360 ; 4 Day, 244 ; 10 S. & R. 63 ; 
 9 Pick. 251. See 14 Barb. 511 ; 3 Me. 120 ; 
 IB. & P. 400; 6B. &Ald. 232. 
 
 Prescription properly applies only to in- 
 corporeal hereditaments ; 3 Barb. 105; Finch, 
 Iiaw, 132 ; such as easements of water, light 
 
 and air, way, etc.; 4 Mas. 397 ; 4 Rich. 536 ; 
 20 Penn. 331 ; 1 Cro. M. & R. 217 ; 1 Gale 
 & D. 205, 210, n.; Tudor, Lead. Cas. 114; 
 Washb. Easem.; a class of franchises; Co. 
 Litt. 114; 10 Mass. 70; 10 S. & R. Penn. 
 401. See Ferry. As to the character ot 
 the use necessary Co create a prescriptive right, 
 see Adverse Enjoyment. 
 
 It has been held that corporations may exist 
 by prescription ; 2Kent, *277; 12 Mass. 400. 
 It is necessary in such ease to presuppose a 
 grant by charter or act of parliament, which 
 has been lost; 85 Barb. 319. 
 
 PRESENCE. The being in a particular 
 place. 
 
 In many contracts and judicial proceedings It 
 is necessary that the parties should be present in 
 order to render them valid : for example, a party 
 to a deed, when it is executed by himself, must 
 personally acknowledge It, when such acknowl- 
 edgment is required by law, to give it its full 
 force and effect, and his presence is indispensable, 
 unless, indeed, another person represent him as 
 Ms attorney, having authority from him for that 
 purpose. 
 
 Actual presence is being bodily in the prCr 
 cise spot indicated. 
 
 Constructive presence is being so near to 
 or in such relation with the parties actually 
 in a designated place as to be considered in 
 law as being in the place. 
 
 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 actu- 
 ally in the place. A lunatic, or a man sleep- 
 ing, would not, therefore, be considered 
 present; Dig. 41. 2. 1. 3. And so if insensi- 
 ble ; 1 Dougi. 241 ; 4 Bro. P. C. 71 ; 3 Russ. 
 441 ; or if the act were done secretly so that 
 he knew nothing of it ; 1 P. Wms. 740. 
 
 The English Statute of Frauds, § 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 suffi- 
 cient: as, where the testatrix executed the 
 will in her carriage standing in the street be- 
 fore the ofiice of her solicitor, the witness re- 
 tired 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. C. C. 98. See 2 Curt. Eccl. 
 320, 331 ; 2 Salk. 688 ; 3 Russ. 441 ; 1 
 Maule & S. 294; 2 C. & P. 491. 
 
 In Criminal Law. In trials for cases 
 in which corporal punishment is assigned, the 
 defendant's appearance must ordinarily be in 
 person, and must so appear on record. There 
 can be no judgment of conviction taken by de- 
 fault ; 6 Barr, 387 ; Whart. Cr. PI. & Pr. § 
 540. The prisoner's actual presence is not 
 requisite at the making and arguing of motions 
 of all kinds, though in motions for arrest of 
 judgment and^n error, the old practice was to 
 require it; 88 111. 284; 63 Mo. 159. This 
 is not now usually required in proceedings 
 
PRESENT 
 
 452 
 
 PRESENTMENT 
 
 in error; 1 Park. C. C. 360. In felonies 
 (presence at the verdict is essential, and this 
 right cannot be waived ; 18 Penn. 103 ; 63 id. 
 386 ; but where a prisoner was voluntarily 
 absent during the taking of a portion of the 
 testimony in an adjoining room, he was consid- 
 ered as constructively present ; 25 Alb. L. J. 
 803. See 88 Penn. 189. In trials for misde- 
 meanors these rules do not apply ; 9 Dana, 
 304 ; 7 Cow. 525 ; Whart. Cr. PI. & Pr. § 
 550. 
 
 PRESENT. A gift, or more properly, 
 the thing given. It is provided by the con- 
 stitution 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 for- 
 eign 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. la Ecclesiastical 
 La'vo'. The act of a patron ofiering his clerk 
 to the bishop of the diocese to be instituted 
 in a church or benefice. 
 
 PRESENTEE. In Ecclesiastical Law. 
 A clerk who has been presented by his patron 
 to a bishop in order to be instituted in a 
 church. 
 
 PRESENTMENT. In Criminal Prac- 
 tice. The written notice taken by a grand 
 jury of any ofitence, from their own knowledge 
 or observation, without any bill of indictment 
 laid before them at the suit of the government. 
 4 Bla. Com. 301. 
 
 Upon sBch presentment, when proper, the 
 officer employed to prosecute afterwards frames 
 a bill 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 are properly so called, but also inquisitions 
 of olBce and indictments found by a grand jury. 
 2 Hawk. PI. Cr. c. 25, s. 1. 
 
 The difference between, a presentment and an 
 inquisition is this : that the former is found by a 
 grand jury authorized to inquire of offences gene- 
 rally, whereas the latter is an accusation found 
 by a jury specially returned to inquire concerning 
 the particular offence. 2 Hawk. PI. Cr. c. 35, s. 
 6. See, generally, Comyns, Dig. Inclictment (B) ; 
 Bacon, Abr. Indictment (A); 1 Chitty, Cr. Law, 
 163 ; 7 East, .387 ; 1 Meigs, 113 ; 11 Humphr. 12. 
 
 The writing which contains the accusation 
 so presented by a grand jury. 1 Brock. 1 56. 
 
 In Contracts. The production of a bill 
 of exchange or promissory note to the party 
 on whom the former is drawn, for his accept- 
 ance, or to the person bound to pay either, 
 for payment. 
 
 The holder of a bill is bound, in order to 
 hold the parties to it responsible to him, to 
 present it in due time for acceptance, and to 
 give notice, if it be dishonored, to all the 
 parties he intends to hold liable ; 2 Pet. 
 170 ; 4 Mas. 336 ; 5 id. 118 ; 12 Pick. 399 ; 
 
 7 Gray, 217; 20 Wend. 321; 12 Vt 401- 
 13 La. 357; 7 B. Monr. 17; 8 Mo.' iZ'. 
 7 Bla«kf. 367 ; I M'Cord, 322 ; 7 Leigh I79 
 And when a bill or note becomes payable it 
 must be presented for payment. ' 
 
 In general, the presentment for payment 
 should be made to the maker of a note, or the 
 drawee of a bill, for acceptance, or 'to the 
 acceptor, for payment ; 2 Esp. 509 ; but a 
 presentment made at a particular place, when 
 payable there, is, in general, sufficient. A 
 personal demand on the drawee or acceptor 
 is not necessary ; a demand at his usual place 
 of residence ; 17 Ohio, 78 ; of his wife, or other 
 agent, is sufficient ; 17 Ala. n. 8. 42 ; 1 Const 
 367 ; 2 Esp._ 509 ; 5 id. 265 ; Holt, 313. 
 
 When a bill or note is made payable at a 
 particular place, a presentment, as we have 
 seen, may be made there ; 8 N. Y. 266 ; but 
 when the acceptance is general, it must be pre- 
 sented at the house ; 2 Taunt. 206 ; 1 M. & 
 G. 83 ; 3 B. Monr. 461 ; or place of busi- 
 ness, of the acceptor; 3 Kent, 64, 66; 4 Mo. 
 52; 11 Gratt. 260; 2 Camp. 596. See 14 
 Mart. I^a. 6II. 
 
 The presentment for acceptance must be 
 made in reasonable time ; and what this rea- 
 sonable time is depends upon the circum- 
 stances of each case ; 7 Taunt. 1 97 ; 9 Bingh. 
 416 ; 9 Moore, P. C. 66 ; 2 H. Blackst. 565 ; 
 
 4 Mas. 336; 1 M'Cord, 322; 7 Gray, iU; 
 7 Cow. 205; 9 Mart. La. 326; 7 Blackf. 
 367. The presentment of a note or bill for 
 payment ought to be made on the day it be- 
 comes due; 4 Term, 148; 8 Mass. 453; 3N. 
 H. 14; 12 La. 386; 22 Conn. 213 ; 20 Me. 
 109; 7 Gill & J. 78; 8 Iowa, 394; 1 Blackf. 
 81 ; 10 Ohio, 496 ; and notice of non-pay- 
 ment given (otjierwise the holder will lose the 
 security of the drawer and indorsers of a bill 
 and indorsers of a promissory note); and in 
 case the note or bill be payable at a particular 
 place, it should be presented for payment at 
 that place ; 1 Wheat. 171 ; 1 Harr. Del. 10; 
 
 5 Leigh, 522 ; 5 Blackf. 215 ; 2 Jones, No. 
 C. 23; 13 Pick. 465; 19 Johns. 891; 8 Vt. 
 191 ; 1 Ala. n. s. 375; 8 Mo. 336; and if 
 the money be lodged there for its payment, 
 the holder would probably have no recourse 
 against the maker or acceptor if he did not 
 present them on the day and the money 
 should be lost ; 5 B. & Aid. 244 ; S Me. 147 ; 
 27 id. 149. 
 
 The excuses for not making a presentment 
 are general, and applicable to all persons who 
 are indorsers ; or they are special, and ap- 
 plicable to the particular indorser only. ' 
 
 Among the former are — inevitable accident 
 or overwhelming calamity ; Story, Bills, § 
 308 ; 3 Wend. 488 ; 2 Ind. 224. Theprev^ 
 lence of a malignant disease, by which the 
 ordinary operations of business are suspended; 
 2 Johns. Cas. 1 ; 3 Maule & S. 267. Ihc 
 breaking out of war between the countrj; ot 
 the maker and that of the holder; 1 Paine, 
 156. The occupation of the country where 
 the note is payable, or where the parties hve, 
 by a public enemy, which suspends commer- 
 
PRESERVATION 
 
 453 
 
 PRESIDENT 
 
 cial operations and intercourse ; 8 Cra-_ 155; 
 15 Johns. 57; 16 id. 438; 7 Pet. 686; 2 
 Brock. 20. The obstruction of the ordinary 
 negotiations of trade by the vis major. Posi- 
 tive interdictions and public regulations of the 
 state which suspend commerce and inter- 
 course. The utter impmcticdbility of finding 
 the maker or ascertaining his place of resi- 
 dence; Story, Pr. Notes, §§205, 236, 238, 
 241, 264 ; 4 S. & R. 480 ; 6 La. 727 ; 14 La. 
 An. 484; 3 M'Cord, 494; 1 Dev. 247; 2 
 Caines, 121. 
 
 Among the latter, or special excuses for not 
 making a presentment, may be enumerated 
 the foUowmg. The receiving the note by the 
 holder from the payee, or other antecedent 
 party, too late to make a due presentment : 
 this will be an excuse as to such party; 16 
 East, 248 ; 7 Mass. 483 ; Story, Pr. Notes, 
 §§ 201, 265 ; 2 Wheat. 373 ; 11 id. 431. The 
 note being an accommodation note of the 
 maker for the benefit of the indorser ; Story, 
 Bills, § 370. See 2 Brock. 20 ; 7' Harr. & 
 J. 381 ; 1 H. & G. 468 ; 7 Mass. 452 ; 1 
 Wash. C. C. 461 ; 2 id. 514 ; 1 Hayw. 271 ; 
 4 Mas. 413 ; 1 Caines, 157 ; 1 Stew. Ala. 
 175; 5 Pick. 88; 21* td. 327. A special 
 agreement by which the indorser waives the 
 presentment; 8 Me. 213; 6 Wheat. 572; 
 11 id. 629 ; Story, Bills, §§ 371, 373. The 
 receiving security or money by an indorser 
 to secure himself from loss, or to pay the 
 note at maturity. In this case, when the in- 
 demnity or money is a full security for the 
 amount of the note or bill, no presentment is 
 requisite ; Storv, Bills, § 374 ; Story, Pr. 
 Kotes, § 281 ; i Watts, 328 ; 9 Gill & J. 47 ; 
 7 Wend. 165 ; 2 Me. 207 ; 5 Mass. 170 ; 5 
 Conn. 175. ihe receiving the note by the 
 holder from the indorser as a collateral secur- 
 ity for another debt ; Story, Pr. Notes, § 284 ; 
 Story, Bills, § 372 ; 2 How. 427, 457. 
 
 A want of presentment may be waived by 
 the party to be affected, after a full knowl- 
 edge of the fact ; 8 S. & E. 438. See 6 
 Wend. 658 ; 3 Bibb, 102 ; 5 Johns. 385 ; 4 
 Mass. 347 ; 7 id. 452 ; 8 Gush. 157 ; Bacon, 
 Ahr. Merchant, etc. (M). See, generally, 1 
 Hare&W. Sel. Dec. 214, 224; Story, Pr. 
 Notes ; Byles, Bills ; Parsons, Bills ; Dan. 
 Neg. Instr. 
 
 PRESERVATION. Keeping safe from 
 harm ; avoiding injury. This term always 
 presupposes a real or existing danger. 
 
 A jettison, which is always for the preser- 
 vation of the remainder of the cargo, must 
 therefore be made only when there is a real 
 danger existing. See Avkkage ; Jettison. 
 
 PRESIDENT. An officer of a company 
 who is to direct the manner in which business 
 is to he transacted. From the decision of the 
 president there is an appeal to the body over 
 which h^ presides. 
 
 PRESIDENT OP A BANE. This of- 
 ficer, under the banking system in the United 
 States, is oi-dinarily a member of the board of 
 directors of the bank, and is chosen by them. 
 
 It is his duty to preside at all meetings ot the 
 board of directors ; to exercise a constant, 
 immediate, and personal supervision over the 
 daily affairs of the bank ; and to institute and 
 carry on legal proceedings to collect demands 
 or claims due the institution. This latter func- 
 tion is the most important of those attached to 
 the office ; Morse, Banks, 144, citing 2 Mete. 
 (Ky.) 240 ; 5 How. 83 ; 28 Vt. 24. Mort 
 gages to secure subscriptions to stock run in 
 his name; 1 Sandf. Ch. 179; but he has no 
 more control over the property of the bank 
 than any other director ; 7 Ala. 281 ; 1 Seld. 
 320 ; 9 P. C. L. J. 43. He has no authority 
 to release the claims of the bank, without 
 the authorization of the board of directors ; 
 7 R. I. 224; 115 Mass. 547. See, generally, 
 Ball, Nat. Banks, 58. 
 
 PRESIDENT OF THE UNITED 
 STATES OF AMERICA. The title of the 
 chief executive officer of the United States. 
 
 The constitution directs that the executive 
 power shall be vested in a president of the 
 United States of America. Art. 2, s. 1. 
 
 No person except a natural-born citizen, or a 
 citizen of the United States at the time of tbe 
 adoption of this constitution, shall be eligible to 
 the office of president ; neither shall any person 
 be eligible to that office who shall not have at- 
 tained the age of thirty-five years and been four- 
 teen years a resident within the United States. 
 Art. 2, B. 1, n. 5. 
 
 He is chosen by presidential electors (g. a.). 
 See 1 Kent, Lect. xiii.; Story, Const. § 1410. 
 The constitution, after providing for the trans- 
 mission of the votes by the electoral colleges to 
 the president of the senate, provides (Amend- 
 ment xii.), that "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 hav- 
 ing the greatest number of votes for president 
 shall be president, if such number ^be a ma- 
 jority of the whole number of electors ap- 
 pointed ; and if no person have such majority, 
 then from the persons having the highest num- 
 bers, not exceeding three, on the list of those 
 voted for as president, the house of represen- 
 tatives shall 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 mem- 
 bers from two-thirds of the states, and a ma- 
 jority 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-pres- 
 ident shall act as president, as in the case of the 
 death or other constitutional disability of the 
 president. 
 
 " 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, then 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 in- 
 eligible to the office of president shall be eligible 
 to that of vice-president of the United States." 
 
 After his election, and before' he enters on the 
 
PRESIDENT 
 
 454 
 
 PRESS COPIES 
 
 execution of his office, he shall take the follow- 
 ing oath or affirmation : " I do solemnly swear 
 (or affirm), that I will faithfully execute the 
 office ct president of the United States, and will, 
 to the best of my ability, preserve, protect, and 
 defend the constitution of the United States." 
 Art. 2, s. 1, n. 8. He holds his office for the 
 term of four years (art. 8, sec. 1, n. 1), and is 
 re-eligible for successive terms, though no one 
 has yet been elected for a third term. 
 
 In case of the removal of the president from 
 office, or of his death, resignation, or inability to 
 discharge the powers and duties of the said ofBce, 
 the same shall devolve on the vice-president; 
 and the congress may by law provide for the re- 
 moval, death, resignation, or inability both of 
 the president and vice-president, declaring what 
 officer shall then act as president; and such officer 
 shall act accordingly until the disability be re- 
 moved or a president shall be elected. Art. 3, 
 B. 1, n. 6. Congress have accordingly provided 
 that, in case of the inability of both of said offi- 
 cers to serve, the president of the senate, or, if 
 there is none, the speaker of the house for the 
 time being, shall act as president, until the disa- 
 bility is removed or a president elected. 
 
 The president shall, at stated times, receive 
 for his services a compensation which shall 
 neither be increased nor diminished during the 
 period for which he shall have been elected ; and 
 he shall not receive within that period any other 
 emolument from the United States, or any of 
 them. Art. 2, s. 1, n. 7. The act of March Sd, 
 1873, c. 326, fixed the salary of the president at 
 fifty thousand dollars. 
 
 The powers of the president are to be exercised 
 by him alone, or by him with the concurrence of 
 the senate. 
 
 The constitution has vested in him alone the 
 following powers : he is commander-in-chief of 
 the army and navy of the United States, and of 
 the militia of the several states, when called into 
 the actual sei-vice of the United States ; he may 
 require the opinion, in writing, of the principal 
 officers of each of the executive departments, up- 
 on any subject relating to the duties of their re- 
 spective offices ; and he shall have the power to 
 grant reprieves and pardons for offences against 
 the United States, except in cases of impeach- 
 ment. Art. 3, s. 3,n. 2. He shall have power 
 to fill up all vacancies that may happen during 
 the recess of the senate, by granting commis- 
 sions, which shall expire at the end of their next 
 session. Art, 2, s. 2, n. 3. He shall from time 
 to time give congress information of the state 
 of the Union, and recommend to their con- 
 sideration such measures as he shall judge 
 necessary and expedient ; he may, on extraordi- 
 nary occasions, convene both Houses, or either of 
 them, and in case of disagreement between them 
 with respect to the time of adjournment, he may 
 adjourn them to such time as he shall think pro- 
 per ; he shall receive ambassadors and other 
 public ministers ; he shall take care that the laws 
 be faithfully executed, and shall commission all 
 officers of the United States. 
 
 His power, with the concurrence qt the sen- 
 ate, is as follows : to make treaties, provided 
 two-thirds of the senators present concur ; nomi- 
 nate, and, by and with the advice and consent of 
 the senate, appoint, ambassadors, other public 
 ministers and consuls, judges of the supreme 
 court, and all other officers of the United States 
 whose appointments are not provided for in the 
 constitution, and which have been established by 
 law ; but the congress may by law vest the ap- 
 pointment of such inferior officers as they shall 
 think proper in the courts of law, orin the heads 
 of departments. Art. 3, s. 2, n. 2. See 1 Kent, 
 
 Lect. 13; Story, Const, b. 3, c. 86; Rawle 
 Const. Index ; Serg. Const. L. Index; CooW 
 Const. "I 
 
 The president and all civil officers of the Cnitad 
 States shall be removed from office on imoeaeh 
 ment for, and conviction of, treason, briben or 
 other high crimes and misdemeanors Art 2 
 sec. 4. ' 
 
 PRESIDENTIAL ELECTORS. Per. 
 sons appointed in the difierent states whose 
 sole duty it is to elect a president and vice- 
 president of the United States. Each state 
 appoints a number of electors equal to the 
 whole number of senators and representatives 
 to which the state is entitled in congress, and 
 it is within the power of the state legishiture 
 to direct how such electors shall be appointed. 
 (Const, art. ii. sect. 1). The electors have 
 frequently been appointed by the state legis. 
 latures directly, and they have been elected 
 separately by congressional districts; but the 
 more usual method of appointment is by gen- 
 eral ballot, so that each voter in a state votes 
 for the whole number of electors to which his 
 state is entitled. 
 
 The constitution provides. Amend, art. 12, that 
 " the electors shall meet in their respective states, 
 and vote by ballot for president and vice-presi- 
 dent, one of whom, at least, shall not be an in- 
 habitant of the same state with themselves ; thej 
 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 for as president, 
 and of all persons voted for as vice-presideiit, 
 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." 
 See President of the United States. 
 
 PRESS. By a figure, this word signifies 
 the art of printing : the press is free. 
 
 All men have a right to print and publish 
 whatever they may deem proper, unless bj 
 doing so they infringe the rights of another, 
 as in the case of copyrights {q. v.), when 
 they may be enjoined. For any injury they 
 may commit against the public or individuals 
 they may be punished, either by indictment 
 or by a civil action at the suit of the party 
 injured, when the injury has been committed 
 against a private individual. See U. S. Const. 
 Amendm. art. 1 ; Liberty of the Press. 
 
 PRESS COPIES. They are part of the 
 original letters. The identity of the hand- 
 writing as shown on the impression is not de- 
 stroyed, nor rendered unrecognizable by per- 
 sons acquainted with its characteristics. A 
 person having accurate knowledge can testify 
 to the genuineness with as much accuracy as if 
 the original sheets were before him. Such 
 copies are the same as other writings partially 
 obliterated by damp and exposure, which are 
 admissible as evidence, if duly identified by 
 testimonv. They are not however satisfactory 
 as standards of comparison of handwriting. 
 Enough originality is left to be identified by 
 a witness when its own originality is in ques- 
 tion ; 7 Allen, 561 ; 1 Cush. 217 ; to prove 
 the contents of a lost letter, or where a party 
 
PRESS COPIES 
 
 455 
 
 PRESUMPTION 
 
 refused to give up the original ; 6 S. & R. 
 420; 19 La. An. 91; 37 Conn. 555. The 
 necessity of producing the original, or laying 
 the foundation in the usual way for secondary 
 evidence, is not obviated by the fact that a 
 party keeps letter press copies; 44N. Y. 171 ; 
 so in 35 Md. 123. A copy, sworn to be cor- 
 rectly made from a press copy, of a letter is 
 admissible as secondary evidence, to prove 
 its contents, without producing the press copy; 
 102 Mass. 362. Press copies are admissible 
 against a party when they appear to be in 
 hTs handwriting and the originals cannot be 
 produced; 7 Allen, 561. Strictly speaking, 
 a letter-press copy is secondary to the docu- 
 ment from which it is taken, and cannot be 
 treated as an original ; 3 Camp. 228 ; 4 Mc- 
 Lean, 378; 35 Md. 123; 19 La. An. 91. 
 
 Photographs are admissible in evidence un- 
 der similar rules, and in them also the accuracy 
 of mechanical processes is judicially recog- 
 nized as a means of producing true represen- 
 tations. They may be treated of here. 
 
 A photograph, if proved to be fairly taken 
 from the disputed object, is clearly admissible ; 
 45 N. Y. 215. 
 
 Upon a criminal trial, photographic like- 
 nesses tkken after death, of persons whom it 
 is material to identify, may be exhibited to 
 witnesses acquaintied with such persons in life 
 as aids in the identification ; 45 N. Y. 215. 
 Where a mutilated body was found, the wit- 
 ness was allowed to testify that the face re- 
 sembled a photograph of a person alleged to 
 be the one found, though he had not known 
 the man before death ; 76 Penn. 340. The 
 healthy condition of the deceased may be 
 proved by a colored photograph taken a short 
 time before death; 1 W. N. C. (Pa.) 369; 
 and in an indictment for bigamy a photograph 
 of the first husband may be shown to a witness 
 to the first marriage to prove his identity with 
 the person mentioned in the marriage certifi- 
 cate; 4 F. & F. 103. See 52 Ala. 115; 9 
 Am. L. Rev. 18, 173. 
 
 Photographs of places have been introduced 
 as evidence to prove that a grotto mentioned 
 by the witness as the place where the act was 
 committed, was not such a spot as the parties 
 would likely have chosen to commit the act ; 
 2 Tichb. Tr. 640 ; to show to the jury the 
 location and surroundings of premises injured 
 by a change of grade in the street, to aid them 
 in determming the effect of such change ; 31 
 Wise. 512 ; and where damages are sought to 
 be recovered for injuries caused by neglect to 
 repair the highway, a photograph of the place 
 showing its condition at the time is competent 
 evidence; 1 Abb. App. 451. To be admissi- 
 ble the photographs must first be shown to be 
 true representations of the places ; 118 Mass. 
 420; 31 Wise. 512. The weight of authority 
 IS in favor of the admissibility of photographic 
 copies of signatures, when the genuineness of 
 a signature is in question, if the copies are ac- 
 companied by competent preliminary proof 
 that they are accurate in all respects except as 
 to size and coloring. They may be used by 
 
 an expert to aid him as a basis of opinion as 
 to the genuineness of the original signature. 
 The doctrine that such an opinion is only en- 
 titled to little weight, and is at best only 
 secondary evidence, is not supported by the 
 cases ; 16 Gray, 161 ; 45 N. Y. 213 ; 36 Conn. 
 218 ; 115 Mass. 481 ; 47 Tex. 503 ; s. c. 26 
 Am. Rep. 315; contra, 10 Abb. Pr. Rep. n. 
 s. 300. Photographs of instruments and 
 public records which can not be brought 
 into court are admissible in evidence ; but it 
 is necessary to authenticate them by proof 
 of handwriting ; 2 Woods, 682 ; 6 Blatch. 
 137 ; 8 Eng. Rep. 481 ; s. c. L. R. 9 C. 
 P. 187. The copyright in a photograph is 
 protected and a penalty imposed for the vio- 
 lation of it ; R. S. 4965. See 6 Fed. Rep. 
 178. 
 
 See Whart. Hom. §§ 708 and 709 ; Whart. 
 Cr. Ev. §§ 544, 805 ; Whart. & St. Med. J. 
 8 1231 ; 10 Abb. Pr. N. 8. 300; 2 Alb. L. 
 J . 1 ; 7 id. 50; 8 Am. L. Reg. n. s. 1. 
 See Pop. Science Monthly (1875), 710. 
 
 PRESUMPTION. An inference affirm- 
 ative or disaffirmative of the truth or false- 
 hood of any proposition or fact drawn by a 
 process of probable reasoning in the absence 
 of actual certainty of its truth or falsehood, 
 or until such certainty can be ascertained. 
 Best, Presump. 4. 
 
 An inference affirmative or disaffirmative 
 of the existence of a disputed fact, drawn by 
 a judicial tribunal, by a process of probable 
 reasoning, from some one or more matters of 
 fact, either admitted in the cause or otherwise 
 satisfactorily established. Best, Presump. 12. 
 
 A rule of law that courts and judges shall 
 draw a particular inference from a particular 
 fact, or from particular evidence, unless and 
 until the truth of such inference is disproved. 
 iSteph. Ev. 4. 
 
 Conclusive presumptions are inferences 
 which the law makes so peremptorily that it 
 will not allow them to be overturned by any 
 contrary proof, however strong. Best, Pre- 
 sump. 20. They are called, also, absolute 
 and irrebuttable presumptions. 
 
 Disputable presumptions are inferences 
 of law which hold good until they are inva- 
 lidated- by proof or a stronger presumption. 
 Best, Presump. 29; 2 H. & M'H. 77; 4 
 Johns. Ch. 287. 
 
 Presumptions of fact are inferences as to 
 the existence of some fact drawn from the 
 existence of some other fact ; inferences 
 which common sense draws from circum- 
 stances usually occurring in such cases. 1 
 Phill. Ev. 599 ; 3 B. & Ad. 890 ; 3 Hawks, 
 122 ; 1 Wash. C. C. 372. 
 
 Presumptions of law are rules which, in 
 certain cases, either forbid or dispense with 
 any ulterior inquiry. 1 Greenl. Ev. § 14. 
 Inferences or positions established, for tlie 
 most part, by the common, but occasionally 
 by the statute, law, which are obligatory alike 
 on judges and juries. Best, Presump. 17. 
 They are either conclusive or disputable. 
 
PRESUMPTION 
 
 456 
 
 PRBT A USAGE 
 
 The distinctions between presumptions of law 
 and presumptions of fact are— first, that In re- 
 gard to presumptions of law a certain inference 
 must be made whenever the facts appear which 
 furnish the basis of the Inference ; while in case 
 of other presumptions a discretion more or less 
 extensive is vested in the tribunal as to drawing 
 the inference. See 9 B. & C. 643. Second, in 
 case of presumptions of law, the court may draw 
 the inference whenever the requisite facts are 
 developed in pleading ; Stephen, Plead. 4th ed. 
 383 ; while all other presumptions can be made 
 only by the intervention of a jury. Presumptions 
 of law are reduced to fixed rules, and form a 
 part of the system of jurisprudence to which 
 they belong ; presumptions of fact are derived 
 wholly and directly from the circumstances of the 
 particular case, by means of the common ex- 
 perience of mankind. See 2 Stark. Ev. 684 ; 6 
 Am. Law Mag. 370 ; 35 Penn. 440. 
 
 In giving effect to presumptions of fact, it 
 is said that the presumption stands until proof 
 is given of the contrary ; 1 Cr. M. & R. 895 ; 2 
 H. & M'H. 77 ; 2 Ball. 22 ; 4 Johns. Ch. 287. 
 See Burden of Proof ; Onus Proband!. 
 This contrary proof may be a conflicting pre- 
 sumption ; and Mr. Best lays down the fol- 
 lowing rules for application in such cases : 
 ^first, special presumptions take the place of 
 general ones; see 8 B. & C. 737 ; 9 id. 643 ; 
 5 Tauut. 326 ; 1 Marsh. 68 ; second, pre- 
 sumptions derived from the ordinary course of 
 nature are stronger than casual presumptions ; 
 1 C. & K. 134 ; 4 B. & C. 71 ; Co. Litt. 373 
 a ; third, presumptions are favored which 
 tend to give validity to acts; 1 Leach, 412; 
 
 5 Esp. 230; 1 Mann. & R. 668; 3 Camp. 
 432; 2 B. & C. 814; 7 id. 573; 2 Wheat. 
 70 ; 1 South. 148 ; 3 T. B. Monr. 64 ; 7 id. 
 344; 2 Gill & J. 114; 10 Pick. 359; 1 
 Rawle, 386 ; Maxims, Omnia proBSumuntur, 
 etc.; fourth, the presumption of innocence is 
 favored in law ; 4 C. Se P. 116 ; Russ. & R. 
 61; 10 M. &W. 15. 
 
 Among conclusive presumptions may be 
 reckoned estoppels by deed, see Estoppels ; 
 solemn admissions of parties, and unsolemn 
 admissions which have been acted on; 1 
 Camp. 139 ; 1 Taunt. 398 ; 2 Term, 275 ; 15 
 Mass. 82 ; see Admissions ; 1 Greenl. Ev. § 
 205 ; that a sheriff's return is correct as to 
 facts stated therein as between the parties ; 15 
 Mass. 82 ; that an infant under the age of 
 seven years is incapable of committing a 
 felony ; 4 Bla. Com. 23 ; that a boy under 
 fourteen is incapable of committing a rape ; 7 
 C. & P. 582 ; contra, 5 Lea, 352 ; that the 
 issue of a wife with whom her husband co- 
 habits is legitimate, though her infidelity be 
 proved; 3 C. & P. 215 : IS.&S. 153; 5 CI. 
 
 6 F. 163 ; 2 Allen, 453 ; 3 id. 151; that des- 
 patches of an enemy carried in a neutral ves- 
 sel between two hostile ports are hostile ; 6 C. 
 Rob. 440 ; that all persons subject to any law 
 which has been duly promulgated, or which 
 <lerives its validity from geiieral or immemo- 
 rial custom, are acquainted with its provisions ; 
 4 Bla. Com. 27 ; 1 Co. 177 ; 2 id. 3 6 ; 6 id. 
 54 a See, also. Limitation ; Prescrip- 
 tion. 
 
 Among rebuttable presumptions maybe 
 reckoned the presumptions that a man is ,„. 
 nocent of the commission of a crime ■ 2 Lew 
 Cr. Cas. 227 ; see 3 Gray, 465 ; 3 East, 192" 
 10 id. 211 ; 4 B. & C. 247; 6 id. 758; 2 b! 
 
 6 Aid. 385 ; that the possessor of propetty \i 
 its owner; 1 Stra. 505; 9Cush. 150; 21 Barb 
 333 ; 35 Me. 139, 150 ; i\ia.i possession of (he 
 fruits of crime is guilty possession ; 2 C & 
 P. 359 ; 7 id. 551 ; Russ. & R. 3O8 ; 1 Den 
 Cr. Cas. 596; 3 D. & B. 122; 7 Vt. 122- 9 
 Conn._ 527 ; 19 Me. 398 ; that things usually 
 done in the course of trade have been done ' 
 1 Stark. 225 ; 1 M. & G. 46 ; 8 C. B. 827- 
 
 7 Q. B. 846 ; 7 Wend. 198 ; 9 id. 323 ; 9 s' 
 &R. 385; 9N. H. 519; 10 Mass. 205; 19 
 Pick. 112; 7 Gill, 34; 45 Me. 516, 550; 15 
 Conn. 206 ; that solemn instruments are duly 
 executed ; 1 Rob. Eccl. 10 ; 9 C. & P. 570 ■ 
 15 Me. 470 ; 1 Mete. Mass. 349 ; 15 Conn! 
 206 ; that a person, relation, or state of 
 things once shown to exist continues to exist, 
 as, life; 2 RoUe, 461; 2 East, 313; 1 Pet. 
 452 ; 3 McLean, 390 ; see 2 Camp. 113 ; 14 
 Sim. 28, 277 ; 2 PhiU. 199 ; 2 M. & W. 894; 
 19 Pick. 112; 1 Mete. Mass. 204; 1 6a. 
 538 ; 11 N. H. 191 ; 4 Whart. 150, 173; 23 
 Penn. 114; 36 Me. 176; 13 Ired. 333; 1 
 Penn. N. J. 167; 18 Am. L. Reg. N. 8. 
 639 ; 22 Alb. L. J. 38; 14 Cent. L. J. 86; 
 see Death ; a partnership ; 1 Stark. 405 ;, 
 insanity ; 3 Bro. C. C. 443 ; 3 Mete. Mass. 
 164 ; 4 id. 545 ; 39 N. H. 163 ; 4 Wash. C. 
 C. 262; 5 Johns. 144; 1 Pet. C. C. 163; 2 
 Va. Cas. 132; 24 Alb. L. J. 304; that offi- 
 cial acts have been properly performed; Ij. 
 J. Marsh. 447) 14 Johns. 182; 19 td.345; 
 3 N. H. 310; S Gill & J. 359; 12 Wheat. 
 70; 7 Conn. 350. 
 
 Consult Greenleaf, Starkie, Phillips, Whar- 
 ton, Stephen, on Evidence : Best, Matthewe, 
 on Presumptive Evidence ; Russell on Crimes. 
 
 FEBSUMPTrVE EVIDEHCE. Any 
 evidence which is not direct and positive. 1 
 Stark. Ev. 558. The proof of facts from 
 which with more or less certainty, according 
 to the experience of mankind of their more 
 or less universal connection, the existence of 
 other facts can be deduced. 2 Saunders, PI. 
 673. The evidence afforded by circumstances, 
 from which, if unexplained, the jury may or 
 may not infer or presume other cu^umstances 
 or facts. 1 Greenl. Ev. §13. See Peake, 
 Ev. Morris ed. 45 ; Best, Pres. 4, § 3. 
 
 PRBSUMPTIVIi HEIE. One who if 
 
 the ancestor should die immediately would, 
 under existing; circumstances of things, be 
 his heir, but whose right of inheritance may 
 be defeated by the contingency of some 
 nearer heir being born ; as, a brother, who » 
 the presjimptive heir, may be defeated by the 
 birth of a child to the ancestor. 2 Bla. Com. 
 208. 
 
 PRET A trSAGE. (Fr. loan for use). 
 A phrase used in the French law instead ol 
 commodatum. 
 
PRETENSION 
 
 467 
 
 PRIMAGE 
 
 PRETENSION. In French Law. The 
 
 claim made to a thing yhich a party believes 
 himself entitled to demand but which is not 
 admitted or adjudged to be his. 
 
 The words rights, actions, and pretensions are 
 usually joined ; not that they are synonymous, 
 for right is something positive and certain, action 
 is what is demanded, while pretension is some- 
 times not even accompanied by a demand. 
 
 PRETBRITION (Lat. prceter and eo, to 
 go by). In Civil Law. The omission by a 
 testator of some one of his heirs who is enti- 
 tled to a legitime {q. v.) in the succession. 
 
 Among the Romans, the pretention of 
 children when made by the mother was pre- 
 sumed to have been made with design ; the 
 preterition of sons by any other testator, was 
 considered as a wrong, and avoided the will, 
 except the will of a soldier in service, which 
 was not subject to so much form. 
 
 PRETEXT (Lat. prceiextum, woven be- 
 fore). 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. 
 
 PRBTItJM AFPECTIONIS(Lat.). An 
 imaginary value put upon a thing by the fancy 
 of the owner in his affection for it or for the 
 
 Serson from whom he obtained it. Bell, 
 lict. 
 
 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, Eq. 74, 75. 
 
 PREVARICATION. In CivU 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 (Lat. prevenire, to come 
 before). In Civil Law. The right of a 
 judge to take cognizance of an action over 
 which he has concurrent jurisdiction with 
 another judge. 
 
 _ , 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, 114. 
 
 PRICE. The consideration in money 
 given for the purchase of a thing. 
 
 There are three requisites to the quality of 
 a price in order to make a sale. 
 
 It must be serious and such as may be de- 
 manded : ^ 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. Pothier, V^nte, n. 18. 
 
 It must 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 
 sufficiently certain, provided the third person 
 make a valuation and fix the price ; Pothier, 
 Vento, n. 23, 24 ; 2 Sumn. 539 ; 4 Pick. 
 179 ; 13 Me. 400 ; 2 Ired. 36 ; 3 Penn. 50 ; 
 2 Kent, 477. When the parties have not ex- 
 pressed any price in their contract, the pre- 
 sumption of law is that the thing is sold for 
 the price it generally brings at the time and 
 place where the agreement was made ; 3 T. 
 
 B. Monr. 133 ; fi^H. & J. 273 ; Coxe, 261 ; 
 10 Bingh. 376 ; 11 U. C. Q. B. 545 ; 6 Taunt. 
 108. 
 
 The third quality of a price is that it con- 
 sists 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 ; Pothier, Vente, n. 30 ; 
 16 Toullier, n. 147; 12 N. H. 390 ; 10 Vt. 
 457 ; contra, 54 N. Y. 173. 
 
 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; Pothier, Vente, n. 243. 
 The first price or cost of a thing does not al- 
 ways afford a sure criterion of its value. It 
 may have been bought very dear or very 
 cheap : Marsh. Ins. 620 et seq.; Ayl. 
 Parerg. 447 ; Merlin, R6pert.; 4 Pick. 179 ; 
 8 id. 252 ; 16 id. 227. 
 
 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. PI. 372, n. ; 2 Lilly, Abr. 629. 
 See Bouvier, Inst. Index. 
 
 Lord Tenterden's act has substituted value 
 for price in the English Statute of Frauds ; 
 25 L. J. C. P. 257. See Campb. Sales, 162. 
 
 PRIMA FACIE (Lat.) . At first view or 
 appearance of the business : as, the holder of 
 a bill of exchange, indorsed in blank, is pri- 
 ma facie its owner. 
 
 Primd facie evidence of fact is in law suf- 
 ficient to establish the fact, unless rebutted ; 6 
 Pet. 622, 632; 14 id. 334. See, generally 
 7 J. J. Marsh. 425 ; 3 N. H. 484 ; 7 Ala. 
 267; 5 Rand. 701; 1 Pick. 332; 1 South. 
 77; lYeates, 347; 2N. &M'C. 320; 1 Mo. 
 334; 11 Conn. 95; 2 Boot, 286; 16 Johns. 
 66, 136; 1 Bail. 174; 2 A. K. Marsh. 244. 
 For example, when buildings are fired by 
 sparks emitted from a locomotive engine pass- 
 ing along the road, it has been held to be 
 primd facie evidence of pegligence on the 
 part of those who have the charge of it ; 3 
 
 C. B. 229. 
 
 PRIMA TONSTTRA (Lat.) . A grant of 
 a right to have the first crop of grass. I 
 Chitty, Pr. 181. 
 
 PRIMAGE. In Mercantile Law. A 
 
 duty payable to the master and mariners 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. Abbott, Shipp. 
 270. 
 
PRIMARY 
 
 458 
 
 PRINCIPAL 
 
 This payment appears to be of very ancient 
 date, and to be variously regulated indifferent 
 voyages and trades. • It is sometimes called 
 the master's hat-money. 3 Chitty, Com. Law, 
 431. 
 
 PRIMARY. That which is first or prin- 
 cipal : 'as, primary evidence, 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. 
 
 FRIMART EVIDENCZi. The best 
 evidence of which the case in its nature is 
 susceptible. 3 Bouvier, Inst. n. 3053. See 
 Evidence. 
 
 PRIMARY OBLIGATION. An obli- 
 gation 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 Bouvier, 
 Inst. n. 702. 
 
 PRIMARY POVTERS. The principal 
 authority given by a principal to his agent : 
 it differs from mediate powers. Story, Ag. 
 §58. 
 
 PRIMATE. In Ecclesiastical Law. 
 An archbishop who has jurisdiction over one 
 or several other metropolitans. 
 
 PRIMER ELECTION. A term used to 
 signify first choice. 
 
 In pngland, when coparcenary lands are 
 divided, unless it is otherwise agreed, the 
 eldest sister has the first choice of the pur- 
 parts : this part is called , the enitia pars. 
 Sometimes the oldest sister makes the par- 
 tition ; and in that case, to prevent partiality, 
 she takes the last choice. Hob. 107 ; Little- 
 ton, §§ 243, 244, 245 ; Bacon, Abr. Copar- 
 ceners (U). 
 
 PRIMER SEISIN. In English 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 full 
 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 Bla. Com 
 66. 
 
 PRIMOGENITURE. The state of being 
 first born ; the eldest. 
 
 At common law, in cases of descent of land, 
 primogeniture gave a title to the oldest son in 
 preference to the other children. This unjust 
 distinction has been generally abolished in the 
 United States. Formerly in Pennsylvania, 
 in cases of intestacy, the oldest son took a 
 double portion of the real estate. 
 
 PHIMOGBNITXJS (Lat.). The first- 
 born. 1 Ves. 290. And see 3 Maule & S. 
 25 ; 8 Taunt. 468 ; S Vern. 660. 
 
 PRIMUM DECRETUM (Lat.). In the 
 courts of admiralty, this name is given to a 
 
 provisional decree. Bacon, Abr. The Court 
 of Admiralty (^E). 
 
 PRINCE. In a general sense, asovereisn- 
 the ruler of a nation or state. The son rf a 
 king or emperor, or the issue of a royal fam. 
 ily : as, princes of the blood. The chief of 
 any body of men. 
 
 By a clause inserted in policies of insuiiance 
 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 Bouvier, Inst. n. 1218. 
 
 PRINCIPAL. Leading; chief; more 
 important. 
 
 This word has several meaningfl. 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 aceeesary 
 after the fact. 
 
 In estates, principal is used as opposed to inci- 
 dent 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 inci- 
 dent : accessorium non dudt, sed sequititr imm 
 principale." Co. Litt. 152 a. 
 
 It is used in opposition to agent, and in this 
 sense it eigniiieB that the principal is the prime 
 mover. 
 
 It is used in opposition to interest ; as, the 
 principal being secured, the interest will follow. 
 
 It is used also in opposition to swrety: tins, 
 we say, the principal is answerable before the 
 surety. 
 
 Principal is used also to denote the more im- 
 portant : as, the principal person. 
 
 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 principal bed, the 
 principal table, and the like. 
 
 In Contracts. One who, being competent 
 sui juris to do any act for his own benefit or 
 on his own account, confides it to anotber 
 person to do for him. 1 Domat, b. 1, tit. 15, 
 Introd.; Story, Ag. § 3. 
 
 Every one of full age, and not otherwise 
 disabled, is capable of being a principal ; for 
 it is a rule that whenever a person has power, 
 as owner, or in his own right, to do a thing, 
 he may do it by another ; Comyns, Dig. At- 
 torney (C 1) ; Heineccius, ad Pand. p. I, I. 
 3, tit. 1, § 424 ; 9 Co. 75 b; Story, A^. §6. 
 Infants are generally incapable of appointing 
 an agent; but under special circumstances 
 they may make such appointments. For in- 
 stance, an infant may authorize another to do 
 any act which is beneficial to him, but not to 
 do an act which is to his prejudice ; 2 Kent, 
 233-243; 9 Co. 75, 76; 3 Burr. 1804; 6 
 Cow. 893 ; 10 Ohio, 37 ; 10 Pet. .58, 69; U 
 Mass. 463. A married woman cannot, m 
 general, appoint an agent or attorney; and 
 when it is requisite that one should be ap- 
 pointed, the husband usually appoints for 
 both. She may, perhaps, dispose of at in- 
 cumber her separate property, through an 
 agent or attorney ; Cro. Car. 165 ; 2 l^ 
 200 ; 2 Bulstr. 13 ; but this seems to be 
 doubted; Cro.Jac.617; Yelv.l; 1 Brownl. 
 134 ; 2 id. 248 ; Adams, Ej. 174. Idioti, 
 
PRINCIPAL 
 
 459 
 
 PRINCIPAL 
 
 lunatics, and other persons sui juria are 
 wholly incapable of appointing an agent; 
 Story,' Ag. §6. _ 
 
 The rights to which principals are entitled 
 arise from obligations due to them by their 
 agents or by third persons. 
 
 The rights of principals in relation to their 
 agents axe— first, to call them to an account 
 at all times in relation to the business of the 
 agency ; 2 Bouvier, Inst. 28. Second, when 
 the agent violates his obligations to his princi- 
 pal, 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 ; 1 Liver- 
 more, Ag. 398 ; Story, Ag. § 217 c ; 12 Pick. 
 328 ; 20 id. 167 ; 6 Hare, 366 ; 7 Beav. 176. 
 But the loss or damage must be actual, and 
 not merely probable or possible ; Story, Ag. 
 § 222 ; Paley, Ag. 7, 8, 74, 75. But see id. 
 74, note 2. Ihird, where both the principal 
 and agent may maintain a suit against a third 
 person for any matter relating to the agency, 
 the principal has a right to supersede the agent 
 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 ; Story, Ag. § 403 ; 4 Camp. 1 94 ; 3 
 Hill, N. Y. 72, 73 ; 6 S. & R. 27 ; 2 Wash. 
 0. C. 283 ; 7 Taunt. 237, 243 ; 1 Maule & S. 
 576. But, as we shall presently see, an ex- 
 ception to this rule arises in favor of the 
 agent, to the extent of any lien, or other in- 
 terest, or superior right, he may have in the 
 property; Story, Ag. §§ 393, 397, 407, 408, 
 424. 
 
 In general, the principal, as against third 
 persons, has a right to all the advantages and 
 benefits of the acts and contracts of his agent, 
 and is entitled to the same remedies against 
 such third persons, in respect to such acts and 
 contracts, as if they were made or done with 
 him personally; Story, Ag. §§ 418, 420: 
 Paley, Ag. 323 ; 8 La. 296 ; 2 Stark. 443! 
 But to this rule there are the following excep- 
 tions. First, when the instrument is under 
 seal, and it has been exclusively made be- 
 tween the agent and the third person, as, for 
 example, a charter-party or bottomry bond 
 made by the master of a ship in the course of 
 his employment, in this case the principal can- 
 not sue or be sued on it ; Story, Ag. § 422 : 
 Abbott, Shipp. pt. 3, ch. 1, § 2 : 4 Wend. 
 285 ; 1 Paine, 252 ; 3 Wash. C. C. 560. 
 Second, 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 autho- 
 rized it and be entitled to all the benefits aris- 
 ing from it. The case of a foreign factor buy- 
 ing 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 con- 
 tract. This, it has been well observed, is a 
 general rule ol 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. § 423 ; Smith, 
 Merc. Law. 66 ; 15 East, 62 ; 9 B. & C. 87; 
 4 Taunt. 574. Third, when the agent has a 
 lien or claim upon the property bought or 
 sold, or upon its proceeds, which is equal to 
 or exceeds the amount of its value, the prin- 
 cipal cannot sue without the consent of the 
 agent ; Story, Ag. §§ 403, 407, 408, 424. 
 
 But contracts are not unfrequently made 
 without mentioning the name of the prin- 
 cipal : 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. 
 If, however, the person with whom the con- 
 tract was made bond fide dealt with the agent 
 as owner, he will be entitled to set off any 
 claim he may have against the agent, in 
 answer to the demand of the principal ; and 
 the principal's right to enforce contracts en- 
 tered into by his agent is affected by every 
 species of fraud, misrepresentation, or con- 
 cealment of the agent which would defeat 
 it if proceeding from himself; Story, Ag. §§ 
 420, 421, 440 ; 2 Kent, 632 ; Paley, Ag. 324, 
 325; a B. & P. 490; 7 Term, 359, 360, 
 note; 24 Wend. 458; 3 Hill, 72. 
 
 Where the principal gives notice to the 
 debtor not to pay money to the agent, unless 
 the agent has a superior right, from a lien or 
 otherwise, the amount of any payment after- 
 wards made to the agent may be recovered 
 by the principal from the debtor ; Story, Ag. 
 § 429 ; 4 Camp. 60 ; 6 Cow. 181, 186. Money 
 paid by an agent may also be recovered by 
 the principal under any of the following cir- 
 cumstances : first, where the consideration 
 fails ; second, where money is paid by an 
 agent through mistake ; third, where money 
 is illegally extorted from an agent in the 
 course of his employment ; fourth, where the 
 money of the principal has been fraudulently 
 applied by the agent to an illegal and prohib- 
 ited purpose ; Paley, Ag. 335-337. When 
 goods are intrusted to an agent for a specific 
 purpose, a delivery by him for a different 
 purpose, or in a manner not authorized by the 
 commission, passes no property in them, and 
 they may, therefore, be reclaimed by the 
 owner ; Paley, Ag. 340, 341 ; 3 Pick. 495. 
 Third persons are also liable to the principal 
 from any tort or injury done to his property 
 or rights in the course of the agency. If both 
 the agent and third person have been parties 
 to the tort or injury, they are jointly as well 
 as severally liable to the principal, and he 
 may maintain an action against both or either 
 of them : Story, Ag. § 436 ; 3 Maule & S. 562. 
 
 The liabilities of the principal are either to 
 his agent or to third persons. The liabilities 
 of the principal to his agent are — to reimburse 
 him all his advances, expenses, and disburse- 
 ments lawfully incurred about the agency, 
 and also to pay him interest upon such ad- 
 vances and disbursements whenever interest 
 may fairly be presumed to have been stipu- 
 lated for or to be due to the agent ; Story, 
 
PRINCIPAL 
 
 460 
 
 PRINCIPAL 
 
 Ag. §8 336, 336, 838; Story, Bailm. 196, 
 197 ; Paley, Ag. 107, 108 ; second, to pay 
 him his commissions as agreed upon, or ac- 
 cording to the usage of trade, except iii cases 
 of gratuitous agency ; Story, Ag. § 324 ; 
 Paley, Ag. 100-107; tJdrd, to indemnify the 
 agent -when, without his own default, he has 
 sustained damages in following the direc- 
 tions of his principal: 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; 
 Story, Ag. § 339; 9 Mete. Mass. 212. 
 
 The principal is bound to fulfil all the en- 
 gagements made by the agent for or in the 
 name of theprincipal, and which come within 
 the scope of his usual employment, although 
 the agent in the particular instance has in 
 fact exceeded or violated his private instruc- 
 tions ; Story, Ag. 443 ; Smith, Merc. Law, 
 56-59 ; 4 Watts, 222 ; 21 Vt. 129 ; 26 Me. 
 84; 1 Wash. C. 0. 174. And where an ex- 
 clusive credit is not given to the agent, the 
 principal is liable to third persons upon con- 
 tracts made by his agent within the scope of 
 his authority, although the agent contracts in 
 his own name and does not disclose his 
 agency ; Story, Ag. § 446. But if the prin- 
 cipal and agent are both known, and exclu- 
 sive credit be given to the latter, the princi- 
 pal will not be liable though the agent should 
 subsequently become insolvent ; Story, Ag. 
 § 447. When goods are sold to a person 
 who in fact is the agent of another, but the 
 seller has no knowledge of the agency, the 
 latter may elect to make the principal his 
 debtor on discovering him; 48 Conn. 3] 4. 
 The same principle applies where the seller is 
 informed at the time of the sale that the buyer 
 is an agent, but is not informed who the 
 principal is ; 9 B. & C. 78 ; 2 Mete. Mass. 
 319. Where money is paid by a third per- 
 son to the agent, by mistake or upon a con- 
 sideration that has failed, the principal will 
 be liable to repay it although he may never 
 have received it from his agent ; Story, Ag. 
 § 451 ; Paley, Ag. 293 ; 2 Esp. 509. 
 
 The principal is not, in general, liable to a 
 criminal prosecution for the acts or misdeeds 
 of his agent, unless he has authorized or co- 
 operated in •such acts or misdeeds ; Story, 
 Ag. § 452 ; Paley, Ag. 303 ; 1 Mood. & M. 
 433. He is, however, civilly liable to third 
 persons for the misfeasance, negligence, or 
 omission of duty of his agent in the course of the 
 agency, although he did not authorize or know 
 of such misconduct, or even although he for- 
 bade it; Story, Ag. § 462 ; Paley, Ag. 294- 
 307 ; 26 "Vt. 112, 123 ; 6 Gill & J, 291 ; 20 
 Barb. 507 ; 7 Cush. 385 ; and he is liable for 
 the injuries and wrongs of sub-agents who 
 are retained by his direction, either express or 
 implied ; Story, Ag. § 454 ; Paley, Ag. 296; 
 1 B. & P. 409. But the responsibility of the 
 principal for the negligence or unlawful acts 
 of his agent is limited to cases properly with- 
 
 in the scope of the agency. Nor is he liable 
 for the wilful acts of his agent whereby dam 
 age is occasioned to another, unless he oriei! 
 nally commanded or subsequently assented to 
 the act; Paley, Ag. 298, 299; Story, Ae 8 
 456; 9 Wend. 268; 23 Pick. 26; 20Co1m 
 284. 
 
 In Criminal Law. The actor in the com- 
 mission of a crime. 
 
 Principals are of two kinds, namely, prin. 
 cipals in the first degree, and principals in the 
 second degree. 
 
 A principal in the first degree is oiit via 
 is the actual perpetrator of the act. 1 Hide, 
 PI. Cr. 233, 615; 16 Ga. 346. But to con- 
 stitute him such it is not necessary that he 
 should be actually present when the offence is 
 consummated ; 3 Denio, 190. For if one lay 
 poison purposely for another, who takes it 
 and is Killed, the oil'ender, though absent 
 when it' was taken, is a principal in the first 
 degree ; Post. 349 ; 1 Hawk. PI. Cr. c. 31, 
 § 7 ; 4 Bla. Com. 34 ; 1 Chitty, Crim. Law, 
 267. And the offence may be committed in 
 his absence, through the medium of an inno- 
 cent agent : as, if a person incites a child un- 
 der the age of discretion, or any other instru- 
 ment excused from the responsibility of his 
 actions by defect of understanding, ignorance 
 of the fact, or other cause, to the commission 
 of crime, the inciter, though absent when the 
 fact was committed, is ea;nece*s!<ate liable for 
 the act of his agent and a principal in the first 
 degree ; 1 Hale, PI. Cr. 614 ; 2 Leach, 978. 
 But if the instrument be aware of the conse- 
 quences of his act, he is a principal in thefirs^ 
 degree ; the employer, in such case, if pre- 
 sent when the fact is committed, is a princi- 
 pal in the second degree, and, if absent, an 
 accessary before the fact; Euss. & R. 163; 1 
 C. & K. 589 ; 1 Archb. Cr. Law, 58-60. 
 
 Principals in the second degree are those 
 who are present aiding and abetting the com- 
 mission of the fact. 2 Va. Cas. 356. They 
 are generally termed aiders and abettors, and 
 sometimes, improperly, accomplices ; for the 
 latter term includes all theparticeps criminii, 
 whether principals in the first or second de- 
 gree or mere accessaries. A person to be a 
 principal in the second degree need not be 
 actually present, an ear or eye-witness of the 
 transaction. The presence may be construct- 
 ive. He is, in construction of law, present 
 aiding and abetting if, with the intention of 
 giving assistance, he be near enough to afford 
 it should the occasion arise. If, for instance, 
 he be outside the house watching to prevent 
 surprise or the like, whilst his companions are 
 in the house committing a felony, such con- 
 structive presence is sufficient, to make bun a 
 principal in the second degree; Foster, Cr. 
 Law, 347, 360; 1 Russ. Cr. Law, 27; 1 
 Hale, 556 < Wright, Ohio, 75; 9 Pick. 496; 
 9C. &P. 437; 15 m. 511. There most, 
 however, be a participation in the act ; for 
 although a person be present when a felony is 
 committed, yet if he does not consent to the 
 felonious purpose or contribute to its cxecu- 
 
PBINCIPAL CHALLENGE 
 
 461 
 
 PRIORITY 
 
 tion, he will not be a principal in the second 
 degree merely because he does not endeavor 
 to prevent the felony or apprehend the felon ; 
 1 Russ. Cr. 27 ; 1 Hale, PI. Cr. 439 ; Foster, 
 Cr. Law, 350 ; 9 Ired. 440 ; 3 Wash. C. C. 
 223; 1 Wise. 159 ; 1 Archb.Cr. Law, 61, 62. 
 
 The law recognizes no difierence between 
 the offence of principals in the first and prin- 
 cipals in the second degree. And so imma- 
 terial is the distinction considered in practice 
 that, if a man be indicted as principal in the 
 first degree, proof that he was present aiding 
 and abetting another in committing the offence, 
 although his was not the hand which actually 
 did it, will support the indictment ; and if he 
 be indicted as principaj in the second degree, 
 proof that he was not only present, but com- 
 mitted the offence with his own hand, will 
 support the indictment. So, when an oifence 
 is punishable by a statute which makes no 
 mention of principals in the second degree, 
 such principals 'are within the meaning of the 
 statute as much as the parties who actually 
 commit the offence ; 1 Archb. Cr. Law, 
 66, 67. 
 
 In treason, and in oifenoes below felony, 
 and in all felonies in which the punishment 
 of principals in the first degree and of princi- 
 pals in the second degree is the same, the in- 
 dictment may charge all who are present and 
 abet the fact as principals in the first degree, 
 provided the offence permits of a participation, 
 or specially, as aiders and abettors; Archb. 
 Cr. PI. 7; 11 Cush. 422; 1 C. & M. 187. 
 But where by particular statutes the punish- 
 ment is different, then principals in the second 
 degree must be indicted specially as aiders and 
 abettors; Archb. Cr. PI. 7. If indicted 
 as aiders and abettors, an indictment charging 
 that A gave the mortal blow, and that B, C, 
 and D were present aiding and abetting, will 
 be sustained by evidence that B gave the blow, 
 and that A, C, and D were present aiding and 
 abetting ; and even if it appears that the act 
 was committed by a person not named in the 
 indictment, the aiders and abettors may, 
 nevertheless^ be convicted; Dougl. 207; 1 
 East, PI. Cr. 350. And the same though the 
 jury say that they are not satisfied which gave 
 the blow, if they are satisfied that one of them 
 did, and that the others were present aiding and 
 abetting ; 1 Den. Cr. Cas. 52 ; 2 C. & K. 382. 
 
 PRINCIPAL CHAIiLENGK See 
 
 Challengk. 
 
 PRINCIPAL CONTRACT. One entered 
 into by both parties on their own accounts or 
 in the several qualities they assume. 
 
 PRINCIPAL OBLIGATION. That 
 obligation which arises from the principal ob- 
 ject of the engagement which has been con- 
 tracted between the parties. It differs from 
 an accessory obligation. For example, in the 
 siile 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 ac- 
 cessory engagement. Pothier, Obi. n. 182. 
 By principal obligation is also understood the 
 
 engagement of one who becomes bound for 
 himself, and not for the benefit of another. 
 Pothier, Obi. n. 186. 
 
 PRINCIPLES. By this term is under- 
 stood truths or propositions so clear that they 
 cannot be proved nor contradicted unless by 
 propositions which are still clearer. 
 
 That which constitutes the essence of a 
 'body or its constituent parts. 8 Term, 107. 
 See Patents. 
 
 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, etc. 
 The other class are simply called first principles. 
 These principles have known marks by which 
 they may always be recognized. These are — 
 first, that they are so clear that they cannot be 
 proved by anterior and more manifest truths ; 
 second, that they are almost universally received ; 
 third, that they are so strongly impressed on our 
 minds that we conform ourselves to them what- 
 ever may be our avowed opinions. 
 
 Krst principles have their source in the senti- 
 ment 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. 
 pi-a. t. 1, s. 2 ; TouUier, tit. piel. n. 17. Tlie 
 right to defend one's self continues as long as an 
 unjust attack, was a principle before it was ever 
 decided by a court : so that a court does not es- 
 tablish but recognizes principles of law. 
 
 PRINTING. The art of impressing let- 
 ters ; the art of making books or papers by 
 impressing legible characters. 
 
 The right to print is guaranteed by law, 
 and the abuse of the right renders the guilty 
 person liable to punishment. See Libei. ; 
 
 LiBBKTY OF THE PrESS ; PjRESS. 
 
 PRIORITY. Precedence ; going before. 
 
 He who has the precedency in time has the 
 advantage in right, is the maxim of the law ; 
 not that time, eonsidertd 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 Fonbl. Eq. 320. 
 
 In the payment of debts, the United States 
 is entitled to priority when the debtor is in- 
 solvent or dies and leaves an insolvent estate. 
 The priority was declared to extend to cases 
 in which the insolvent debtor had made a vol- 
 untary assignment of all his property, or in 
 which his effects had been attached as an ab- 
 sconding or absent debtor, on which an act of 
 legal bankruptcy had been committed ; 1 
 Kent, 243; 1 Phil. Int. Law, 219, 251, and 
 the cases there cited. 
 
 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 Johns. Ch. 608. 
 See Insolvency.' 
 
 But in respect to privileged debts, arising 
 ex contractu, existing against a ship or vessel 
 under the general admiralty law, the order of 
 priority is most generally that of the inverse 
 order of their creation, — thus reversing the 
 
PRISON 
 
 462 
 
 PRIVATEER 
 
 order of priority generally adopted in the courts 
 of common law. The ground of this inversion 
 of the rule is that the services performed at the 
 latest hour are more efficacious in bringing the 
 vessel and her freightage to their final destina- 
 tion. Each foregoing incumbrance is, there- 
 fore, actually benefited by means of the suc- 
 ceeding incumbrance; 16 Bost. Law Rep. 1, 
 264; 17 id. 421. See Maeitime Liens; 
 Assets. 
 
 PRISON. A public building for confining 
 persons, either to insure their production in 
 court, as accused persons and witnesses, or to 
 punish, as criminals. 
 
 The root is French, as is shown by the Norman 
 prisons, prisoners; Kelbam, Norm. Fr. Diet,; 
 and Yr. prisons, prisons. Britton, c. 11, de Prisons. 
 Originally it was distinguished from gaol, which 
 was a place for confinement, not for punishment. 
 See Jacob, Diet. Ctaol. But at present there is no 
 such distinction. See Penitbntiakt. 
 
 FRISON-BREAKING'. The act by 
 which a prisoner, by force and violence, es- 
 capes from a place where he is lawfully in cus- 
 tody. This is an offence at common law. 
 This offence is to be distinguished from rescue 
 (y. w.) which is a deliverance of a prisoner 
 from lawful custody by a third person. 2 Bish. 
 Cr. L. § 1065. 
 
 To constitute this offence there must be — a 
 lawful commitment of the prisoner on criminal 
 process; Co. 2d Inst. 589 ; 1 Carr. & M. 295 ; 
 2 Ashm. 61 ; 1 Ld. Raym. 424 ; an actual 
 breach with force and violence of the prison, 
 by the prisoner himself, or by others with his 
 privity and procurement ; Russ. & R. 458 ; 1 
 Russ. Cr. 380 ; the prisoner must escape ; 2 
 Hawk. PI. Cr. c. 18, s. 12. See 1 Hale, PI. 
 Cr. 607 ; 4 Bla. Com. 130; Co. 2d Inst. 500; 
 1 Gabb. Cr. Law, 305; Alison, Scotch Law, 
 655 ; Dalloz, Diet. Effraction ; 3 Johns. 449 ; 
 5 Mete. Mass. 559. 
 
 PRISONER. One held in confinement 
 against his will. 
 
 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 con- 
 sidered 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 ; or those who 
 have been convicted of crimes, whose impris- 
 onment, and the mode of treatment they ex- 
 perience, 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. See Penitentiary. Pris- 
 oners in civil cases are persons arrested on 
 original or mesne process, and these may gen- 
 ersQly be discharged on bail ; and prisoners in 
 execution, who cannot be discharged except 
 under the insolvent laws. 
 
 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 Toullier, 82. ' ' 
 
 Prisoners charged with the commission of 
 crimes under the United States laws are to be 
 confined in the prisons of the states, or in 
 proper places of confinement provided by the 
 marshab; 9 Cra. 80. 
 
 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. 
 
 In modern times, prisoners are treated with 
 more humanity than formerly : the individual 
 captor has now no personal right to bis pris- 
 oner. Prisoners are under the superintend- 
 ence of the government, and they are now 
 frequently exchanged. See 1 Kent, 14. 
 
 It is a general rule that a prisoner is out of 
 the protection of the laws of the state so far 
 that he can have no civil remedy under them, 
 and he can, therefore, maintain no action. 
 But his person is protected against all unlaw- 
 ful acts. Bacon, Abr. Abatement (B 3), 
 Aliens (D). 
 
 PRIVATE. Affecting or belonging to in- 
 dividuals, as distinct from the public generally, 
 Not clothed with office. 
 
 PRIVATE ACT. An act operating only 
 upon particular persons and private concerns, 
 and rather an exception than-a rule. Opposed 
 to public act. 1 Bla. Com. 86 ; 1 Term, 125; 
 Plowd. 28; Dy. 75, 119; 4 Co. Eep. 76, 
 Private acts ought not to be noticed by courts 
 unless pleaded. As to the constitutionality of 
 statutes empowering guardians and trustees 
 to sell lands, see Cooley, Const. Lim. 118. 
 
 PRIVATEER. A vessel owned by one 
 or more private individuals, armed and 
 equipped at his or their expense, for the pur- 
 pose of carrying on a maritime war, by 
 the authority of one of the belligerent par- 
 ties. 
 
 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, 96; Pothier, du 
 Dr. de Propr. n. 90 et seq. See 2 Ball, 36 ; 
 3 id. 334 ; 4 Cra. 2 ; 1 Wheat. 46 ; 3 id 546 ; 
 5 id. 338; 2 Gall. 19, 56, 526; 1 Mas. 365; 
 3 Wash. C. C. 209. On the 16th of Apnl, 
 1856, most of the great maritime powers, 
 assembled in congress at Paris, agreed that 
 privateers should not be allowed in war. 
 
 Spain and Mexico, though represented, did 
 not join in this portion of the Declaration of 
 Paris. And the United States, although urged 
 to accede to it, declined. During the civil 
 war in America, congress authorized the 
 president to issue letters of marque, but he 
 did not do so. The Confederates offered 
 their letters of marque to foreigners, but they 
 were not accepted. The ostensibly Confeder- 
 ate vessels were commissioned as of its regular 
 navy. Boyd's Wheat. Int. Law, 429, 
 
PRIVBMENT ENCEINTE 
 
 463 PRIVILEGE FROM ARREST 
 
 PBIVBMBNT ENCEINTE (L. Fr.). 
 
 A term used to signify that a woman is preg- 
 nant, but not quick with child. See Wood, 
 Inst. 662; Enceinte; Fostus ; Pkeg- 
 
 NANCY. 
 
 PHIVIBS. 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; Co. Litt. 271 a. 
 
 There are 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 es- 
 tate, 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. Prest. Conv. 327- 
 345. Privies nave also been divided into 
 privies in fact and privies in law. 8 Co. 42 
 6. See Viner, Abr. Privity; 5 Comyns, 
 Dig. 347 ; Hamm. Part. 131 ; Woodf. Landl. 
 & T. 279 ; 1 Dane, Abr. c. 1, art. 6. 
 
 PRIVIONUS (Lat.). In CivU Law. 
 Son of a husband or wife by a former mar- 
 riage; a stepson. Calvinus, Lex.; Vicat, 
 Voc. Jur. 
 
 PRIVILEGE. In CivU Law. A right 
 which the nature of a debt gives to a creditor, 
 and which entitles him to be preferred before 
 other'creditors. La. Code, art. 3153 ; Dalloz, 
 Diet. Privilege ; Domat, Lois Civ. liv. 2, t. 
 1, s. 4, n. 1. 
 
 Creditors of the same rank of privileges are 
 paid in concurrence, that is, on an equal foot- 
 ing. Privileges may exist either in movables 
 or immovables, or in both at once. They are 
 general or special, on certain movables. The 
 debts which are privileged on all the mov- 
 ables in general are the following, which are 
 paid in this order. Funeral charges. Law 
 charges, which arejsuch as are occasioned by 
 the prosecution of a suit before the courts. 
 But this name applies more particularly to 
 costs, whidh the party cast has to pay to the 
 party gaining the cause. It is m favor oi 
 these only that the law grants the privilege. 
 Charges, of whatever nature, occasioned by 
 the last sickness, concurrently among those 
 to whom they are due. See Last Sickness. 
 The loages of servants for the year past, and 
 so much as is due for thecurrent year. Sup- 
 plies 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. The salaries of clerks, 
 secretaries, and other persons of that kind. 
 Dotal rights due to wives by their hus- 
 banils. 
 
 The debts which are privileged on particu- 
 lar movables 'axe — the debt of a workman or 
 artisan, for the price of his labor, on the 
 movable which he has repaired or made, it 
 the thing continues still in his possession ; 
 that debt on the pledge which is in tlie credi- 
 tor's possession ; the carrier's charges and ac- 
 cessory expenses on the thing carried- the 
 
 price due on movable effects, if they are yet 
 in the possession of the purchaser ; and the 
 like. See Lien. 
 
 Creditors have a privilege on immovables 
 or real estate in some cases, of which the fol- 
 lowing are instances : the vendor, oiv the es- 
 tate 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 ; architects and con- 
 tractors, bricklayers, and other workmen, em- 
 ployed in constructing, rebuilding, or repair- 
 ing houses, buildings, or making other works 
 on such houses, buildings, or works by them 
 constructed, rebuilt, or repaired ; 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. La. Code, art. 
 3216. 
 
 See, generally, as to privilege, La. Code, 
 tit. 21; Code Civ. tit. 18; Dalloz, Diet. 
 Privilege ; Lien ; Last Sickness ; Pbe- 
 
 FEKENCK. 
 
 In Maiitime Law. An allowance to the 
 master of a ship of the general nature with 
 primage, being compensation, or rather a 
 gratuity, customary in certain trades, arid 
 which the law assumes to be a fair and equi- 
 table allowance, because the contract on 
 both sides is made under the knowledge of 
 such usage by the parties. 
 
 PRIVILEGE FROM ARREST. Privi- 
 lege from arrest on civil process. 
 
 It is either permanent, as in case of am- 
 bassadors, public ministers, and their servants, 
 the royal family and servants, peers and 
 peeresses, etc., or temporary, as in case of 
 members of both houses of congress, and of 
 the state legislature, who are privileged eundo, 
 manendo, et redeundo ; 1 Kent, 243 ; Cooley, 
 Const. Lim. 163 ; 8 R. I. 43 ; see 2 Stra. 
 985 ; practising barristers, while actually en- 
 gaged in the business of the court ; 2 Dowl. 
 51 ; 5 id. 86 ; 1 H. Blackst. 636 ; 1 M. & 
 W. 488 ; 6 Ad. & E. 623 ; a clergyman in 
 England whilst going to church, performing 
 service, and returning ; 7 Bingh. 320 ; wit- 
 nesses and parties to a suit and bail, eundo, 
 manendo, et redeundo; 5 B. & Ad. 1078 ; 6 
 Dowl. 632; 1 Stark. 470; 1 Maule & S. 
 638 ; 1 M. & W. 488 ; 6 Ad. & E. 623 ; and 
 other persons who are privileged by law. See 
 Abkest. 
 
 In case of the arrest of a legislator contrary 
 to law, the house of which he is a member 
 may give summary relief, by ordering his dis- 
 charge, and if this be not complied with, by 
 punishing the persons concerned in such ar- 
 rest, as for contempt of its authority. If the 
 house neglect to interfere, the court from 
 which the process issued should set it aside, 
 on the fact being shown to it ; and any court 
 or officer having authority to issue writs of 
 habeas corpus, may inquire into the case and 
 release the party ; Cooley, Const. Lim. 1 63 ; 
 Cush. Pari. Pract. §§ 546-597. 
 
 By the constitutions of some of the states, 
 
PRIVILEGED COMMUNICATIONS 464 PRIVILEGES OF CITIZENS 
 
 the privilege has been enlarged, so as to ex- 
 empt the persons of legislators from any ser- 
 vice of civil process ; e. g. Michigan, Kansas, 
 Nebraska, California, Wisconsin, Indiana, 
 Oregon, and others. 
 
 PRIVILEGED COMMUNICA- 
 TIONS. A communication made bond fide 
 upon any subject-matter in which the party 
 communicating has an interest, or in reference 
 to which he has a duty, if made to a person 
 having a corresponding interest or duty, 
 although it contain criminatory matter which 
 without this privilege would be slanderous and 
 actionable. 
 
 Duty, in this canon, cannot be confined to 
 legal duties, which may be enforced by in- 
 dictment, action, or mandamus, but must in- 
 clude moral and social duties of imperfect ob- 
 ligation ; 6 E. & B. 347. The proper mean- 
 ing of a privileged communication, said Mr. 
 Baron Parke, is only this : that the occasion 
 on which the communication was made rebuts 
 the inference primd facie arising from a 
 statement prejudicial to the character of the 
 plaintiff, and puts it upon him to prove that 
 there was malice in fact, — that the defendant 
 was actuated by motives of personal spite or 
 ill will, independent of the occasion on which 
 the communication was made ; 2 Cr. M. & R. 
 573. So, also, in 16 N. Y. 373. 
 
 The law recognizes two classes of cases in 
 which the occasion either supplies an absolute 
 defence, or a defence subject to the condition 
 that the party acted bond fide without malice. 
 The distinction turns entirely on the question 
 of malice. The communications last men- 
 tioned lose their privilege on proof of express 
 malice. (12 Fed. Rep. 526.) The former 
 depend in no respect for their protection upon 
 the bona fides of the defendant. The occa- 
 sion is an absolute privilege, and the only 
 questions are whether the occasion existed, 
 and whether the matter complained of was 
 pertinent to the occasion ; Heard, Lib. & S. 
 §89. 
 
 As to communications which are thus abso- 
 lutely privileged, it may be stated as the re- 
 sult of the authorities that no person is liable, 
 either civilly or criminally, in respect of any 
 thing published by him as a member of a legis- 
 lative body, in the course of his legislative 
 duty, nor in respect of any thing published by 
 him in the course of his duty in any judicial 
 proceeding. This privilege extends not only 
 to parties, counsel, witnesses, jurors, and 
 judges in a judicial proceeding, but idso to 
 proceedings in legislative bodies, and to all 
 who, in the discharge of public duty or the 
 honest pursuit of private right, are compelled 
 to take part in the administration of justice or 
 in legislation. A fair report of any judicial 
 proceeding or inquiry is also privileged; 
 Heard, Lib. & S. §§ 90, 103, 110: Odeer, 
 Lib. & S. *185. 
 
 "A communication is privileged when made 
 in good faith in answer to one having an inter- 
 est in the information sought, and it will be 
 privileged if volunteered, when the party to 
 
 whom it is made has an interest in it and such 
 party stands in such relation to him as to make 
 it a reasonable duty, or at least proper that 
 he should give the information. ' 
 
 "The verbal statements of a mercantile 
 agency, made in relation to the plaintiffs' busi- 
 ness credit and standing as merchants, to its 
 subscribers who had an interest in knowing 
 the facts, and in answer to inquiries made by 
 them, if made in good faith and upon informii. 
 tion on which defendant relied, are privileged 
 and cannot be made the foundation of an 
 action. But daily 'notification sheets' sent 
 to all the subscribers of such an agency witl?. 
 out regard to the question whether they have 
 any_ interest in the persons there referred to oi' 
 their business, cannot be considered privilced 
 communications. (See 46 N. Y. 188.) 
 
 "A communication which would otherwise 
 be privileged, if made with malice in fact or 
 through hatred, ill-will, and a malicious de- 
 sign to injure, is not a privileged communica- 
 tion, but the burden of proof is on the plaintiffs 
 to show malice in fact." 12 Fed. Eep. 526. 
 
 Information furnished by a charity orgaui- 
 zation society at the request of a person not 
 a member, but who was interested, is a priv- 
 ileged communication ; 13 Cent. L. J. 482. 
 So are communications to a near relative re- 
 specting the character of a person with whom 
 the relative is negotiating for a marriage ; 8 
 C. & P. 88 ; but not by a stranger; 5 Allen, 
 170 ; so where one communicated to an em- 
 ployer his suspicions of dishonest conduct 
 in a servant towards himself; 8 C. B. s. 8. 
 597. See Towns. Lib. & S. ; Confiden- 
 tial Communications. 
 
 PRIVILEGED COP7HOLDS. Those 
 copyholds which are held according to the 
 custom of the manor, and not accordmg to the 
 will of the lord. They include ancieiit de- 
 mesne and customary freehold. See Custom- 
 ary CoPTHOLD. 2 Woodd. Lect. 83-49 ; 
 Lee, Abs. 63 ; 1 Crabb, E. P. 709, 919; 2 
 Bla. Com. 100. 
 
 PRIVILEGED DEBTS. Those which 
 an executor or administrator, assignee in bank- 
 ruptcy, etc., may pay in preference toothers, 
 such as funeral expenses, servants' wages, and 
 doctors' bills during last sickness, etc. See 
 Privilkge. 
 
 PRIVILEGED DEED. In Scotch 
 Law. An instrument, for example, a testa- 
 ment, in the execution of which certain statu- 
 tory formalities usually retjuired are dispensed 
 with, either from necessity or expediency. 
 Erskine, Inst. 3. 2. 22 ; Bell, Diet. 
 
 PRIVILEGES OP CITIZENS. The 
 federal constitution pro vides that " the citizens 
 of each state shall be entitled to all the pnv- 
 ileges and immunities of citizens of the several 
 states." 
 
 These have been enumerated as some of the 
 principal privileges : Protection by the go'™" 
 ment, the enjoyment of life and liberty, witl m 
 right to acquire and possess property of evei? 
 kind, and to pursue and obtain happiness antt 
 safety, subject nevertheless to such restralnw as 
 
PRIVILEGIUM 
 
 465 
 
 PRIZE 
 
 the government may justly prescribe for the gen- 
 eral good of the whole. The right of a citizen of 
 one state to pass through or reside In any other 
 state, for purposes of trade, agriculture, profes- 
 sional pursuits, or otherwise, to claim the benefit 
 of the writ of habeas corpus, to institute and 
 maintain actions of every kind in the courts of 
 the state, to take, hold, and dispose of property, 
 and an exemption from higher taxes or imposi- 
 tions than are paid by the citizens of other states, 
 etc.; 4 Wash. C. C. 371. Other judges have pre- 
 ferred to leave the meaning of the phrase to be 
 determined as each case arises ; 94 U. 8. 391. 
 See Cooley, Const. 188. 
 
 The constitution also declares that "no 
 slats shall make or enforce any law which 
 shall abridge the privileges and immunities of 
 citizens of the United States." 
 
 A citizen of the United States has been said to 
 have a right as such to participate in foreign and 
 inter-state commerce, to have the benefit of the 
 postal laws, to make use in common with others 
 of the navigable waters of the United States, to 
 pass from state to state and into foreign coun- 
 tries; he may petition the federal authorities, 
 visit the seat of government without being sub- 
 jected to the payment of a tax for the privilege 
 (6 Wall. 3.5) , be the purchaser of public lands 
 on the same terras as others, participate in the 
 government if he comes within the conditions of 
 suffrage, and demand the protection of the gov- 
 ernment on the high seas or in foreign countries ; 
 Cooley, Const. 246 ; see 16 Wall. 36. A state 
 may not impose a tax upon travellers passing by 
 public conveyance out of the state ; 6 Wall. 35 ; 
 nor impose conditions upon the rights of citizens 
 of other states to sue its citizens in the federal 
 eourts'; 30 Wall. 445. See 37 Iowa, 145. 
 
 PRIVILBGrlUM (priva lex, i. e. de uno 
 hnmine). In Civil Law. A private law in- 
 flicting a punishment or conferring a reward. 
 Calvinus, Lex.; Cicero, de Lege, 3, 19, pro 
 Domo, 1 7 ; Vicat, Voc. Jur. Ever}' peculiar 
 right by which one creditor or class of credit- 
 ors is preferred to another in personal actions. 
 Vicat, Voc, Jur. Every privilege granted by 
 law in derogation of common right. Mackel- 
 ^^y,y §§ 188, 189. A claim or lien on a thing, 
 which once attaching continued till waiver or 
 satisfaction, and which existed apart from 
 possession. So at the present day in mari- 
 time law : e. q. the Hen of seamen on ship 
 for wages. 2 Pars. Marit. Law, 561-563. 
 
 PRIVILEGIUM CLERICALE (Lat.). 
 The same as benefit of clergy. 
 
 PRIVITY. The mutual or successive re- 
 lationship to the same rights of property ; 1 
 fireenl. Ev. § 189; 6 How. 60. 
 
 PRIVITY OP CONTRACT. The re- 
 lation which subsists between two contracting 
 parties. 
 
 From the nature of the covenant entered 
 mto by him, a lessee has both privity of con- 
 tract and of estate ; and though by an assign- 
 ment of his lease he may destroy his privity 
 of estate, still the privity of contract remains, 
 and he is liable on his covenant notwithstand- 
 ing the assignment ; Dougl. 458, 764; Viner, 
 Abr.; 6 How. 60. 
 
 PRIVITY OP ESTATE. Identity of 
 title to an estate. 
 Vol. II.— 30 
 
 y The relation which subsists between a Iknd- 
 lord and his tenant. 
 
 It is a general rule that a termor cannot 
 transfer the tenancy or privity of estate be- 
 tween himself and his landlord without the 
 latter's consent : an assignee who comes in only 
 in privity of estate is liable only while he con- 
 tinues to be legal assignee ; that is, while in 
 possession under the assignment ; Bacon, Abr. 
 Covenant (I 4) ; Wood?. Landl. & T. 279 ; 
 Viner, Abr.; Washb. K. P. 
 
 PRIVY. One who is a partaker or has 
 any part or interest in any action, matter, or 
 thing. 
 
 PRIVY COUNCIL. The chief council of 
 the sovereign, called, by pre-eminence, "the 
 Council," composed of those whom the king 
 appoints. 1 Bla. Com. 229-232. 
 
 By statute of Charles II. in 1679 the number 
 was limited to thirty, — fifteen the chief officers of 
 the state ex virtvie o^icii, the other fifteen at the 
 king's pleasure ; but the number is now indefi- 
 nite. A committee of the privy council is a court 
 of ultimate appeal in admiralty causes and causes 
 of lunacy and idiocy ; 3 P. Wms. 108 ; and from 
 all dominions of the crown except Great Britain 
 and Ireland; 1 Woodd. Lect. 157 6; 2 Steph. 
 Com. 479 ; 3 id. 425, 432. This jurisdiction is 
 now transferred to the Court of Appeal. 
 
 PRIVY SEAL. In English Law. A 
 
 seal which the king uses to such grants or 
 things as pass the great seal. Co. 2d Inst. 554. 
 
 PRIVY SIGNET. The seal which is 
 first used in making grants, etc. of the crown. 
 It is always in custody of the secretary of 
 state. 2 Bla. Com. 34*7 ; 1 Woodd. Lect. 
 250; 1 Steph. Com. 571. 
 
 PRIVY TOKEN. By stat. 33 Henry 
 VIII. c. 1, punishment is provided against 
 those evil-disposed persons who devised how 
 they might unlawfully get into their posses- 
 sion goods, chattels, and jewels of other per- 
 sons by ' ' privy tokens and counterfeit let- 
 ters in other men's names," unto divers per- 
 sons, their friends and acquaintances, by color 
 whereof they have unlawfully obtained the 
 same. A false privy token within the statute 
 has generally been taken to denote some seal, 
 visible mark or thing, as a key, a ring, etc.; 
 13 Viner, Abr. 460. When one makes use of 
 a false token, he is indictable for the cheat, 
 though the act is not larceny ; 1 Bish. Cr. L. 
 § 585. But when the consent obtained 
 covers no more than the possession, and the 
 goods are converted to his own use, the offence 
 becomes larcenv ; 1 Leach, 420 ; East, PI. 
 Cr. 691. 
 
 PRIVY VERDICT. One which is de- 
 livered privily to a judge out of court. 
 
 PRIZE. In Maritime Law. The ap- 
 prehension and detention at sea of a ship or 
 other vessel, by authority of a belligerent 
 power, either with the design of appropriat- 
 ing it, with the goods and effects it contains, 
 or with that of becoming master of the whole 
 or a part of its cargo. 1 C. Rob. 228. 
 
 The vessel or goods thus taken. 
 
PRIZE COURT 
 
 466 
 
 PROBABILITY 
 
 Goods taken on land from a public enemy- 
 are called booty ; and the distinction between 
 a prize and booty consists in this, that the 
 former is taken at sea and the latter on land. 
 
 In order to vest the title of the prize in the 
 captors, it must ordinarily be brought with 
 due care into some convenient port for adjudi- 
 cation by a competent court. But circum- 
 stances may rend.er such a step improper; 
 and of these the captor must be the judge. 
 In making up his decision, good faith and 
 reasonable discretion are required ; 18 How. 
 110; 1 Kent, 101. The condemnation must 
 be pronounced by a prize court of the govern- 
 ment 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 for- 
 merly held to be complete and perfect when 
 the battle was over and the spes recuperandi 
 was gone. But by the modern usage of na^ 
 tions this is not sufficient to change the pro- 
 perty. A judicial tribunal must pass upon 
 the case ; and the property is not charged in 
 favor of a neutral vendee or recaptor, so as 
 to bar the original owner, until a regular sen- 
 tence of condemnation; 1 Kent, 102. See 
 Phill. Int. Law, Index, Prize ; 1 Kent, 101 ; 
 Ab. Sh.; 2 Brown, Civ. Law, 444; Merl. 
 R6pert.; Infra Pr^sidia. 
 
 In 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. 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. § 675. 
 
 PRIZE COTTRT. In EngUsh Law. 
 That branch of admiralty which adjudicates 
 upon cases of maritime captures made in time 
 of war. A special commission issues in Eng- 
 land, in time of war, to the judge of the ad- 
 miralty court, to enable him to ht)ld such 
 court. See Admiralty. 
 
 Some question has been raised whether the 
 prize court is or is not a separate court from the 
 admiralty court. Inasmuch as the commission 
 is always issued to the judge of that court, and 
 the forms of proceeding are substantially those 
 of admiralty, while the law applicable is derived 
 from the same sources, the fact that the com- 
 mission of prize is only issued occasionally 
 would hardly seem to render the distinction a 
 valid one. 
 
 In the United States, the admiralty courts dis- 
 charge the duties both of a prize and an instance 
 court. 
 
 PRIZE PIG-HT. A public prize fight is 
 an indictable offence.' No concurrence of 
 wills can justify a public tumult and alarm ; 
 therefore, persons who voluntarily engage in 
 a prize fight and their abettors are all guilty 
 of assault ; 4 C. & P. 587 ; 1 Cox, C. C. 177 ; 
 2 Bish. C. L. § 35. All persons guilty of aid- 
 
 ing and abetting a prize-fight are guilty of »d 
 assault, but mere voluntary presence at a 
 prize-fight does not, as a matter of law, neces. 
 sarily render a person so present guilty of an 
 assault in aiding and abetting in such fight 
 though it is evidence for the jury; 8 Q. b! 
 Piv. 534 ; see, also, 108 Mass. 302. 
 
 PRO (Lat.). For. This preposition is of 
 frequent use in composition. 
 
 PRO AMITA (Lat.). A grandfather-i 
 sister ; a great-aunt. Ainsworth, Diet. 
 
 PRO CONFESSO (Lat. as confessed). 
 
 In Equity Practice. A decree taken 
 where the defendant has either never ap- 
 peared in the suit, or, after having appeared, 
 has neglected to answer. 1 Dan. Ch. Pr 
 479 ; Ad. Eq. 327, 374 ; 1 Sm. Ch. Pr. 254! 
 
 PRO EO QUOS (Lat.). In Pleading. 
 For this that. This is a phrase of affirmation, 
 and is sufficiently direct and positive for intro- 
 ducing a material averment. 1 Sannd. 117, 
 n. 4 ; 2 Chit. PI. 369-393 ; Gould, PI. c. 3, 
 §34. 
 
 PRO HAC VICE (Lat.). For this occa- 
 sion. 
 
 PRO INDIVISO (Lat.). For an undi- 
 vided part. The possession or occupation of 
 lands or tenements belonging to two or more 
 persons, and where, consequently, neither 
 knows his several portion till divided. Bract. 
 1.6. 
 
 PRO INTERESSE SUO (Lat.). Ac- 
 cording to his interest. 
 
 PRO QUERENTE (Lat.). For the plain- 
 tiff : usually abbreviated pro quer. 
 
 PRO RATA (Lat.). According to the rate, 
 proportion, or allowance. A creditor of an 
 insolvent estate is to be paid pro rata with 
 creditors of the same class. 
 
 According^to a certain rule or proportion. 
 19 Am. L. Keg. n. s. 365, n. (U. S. D. C. 
 Cal.). It is presumed to be used in that 
 sense in a will ; id. 
 
 PRO RE NATA(Lat.). For the occasion 
 as it may arise. 
 
 PRO TANTO (Lat.). For so much. See 
 17 S. & R. 400. 
 
 PROAMITA MAGNA. A great-great- 
 aunt. Whart. Law Diet. 
 
 PROAVIA (Lat.). A great-grandmother. 
 Ainsworth, Diet. 
 
 PROAVUNCULUS (Lat.). A great- 
 grandmother's brother. Ainsworth, Diet. 
 
 PROAVTJS (Lat.). Great-grandfather. 
 This term is employed in making genealogical 
 tables. 
 
 PROBABILIT7. Likelihood; conso- 
 nance to reason ; for example, there is a 
 strong probability that a man of good mora) 
 character, and who has heretofore been re- 
 markable for truth, will, when examined as 
 a witness under oath, tell the truth; and, on 
 the contrarv, that a man who has been gm»y 
 of perjury will not, under the same ciKum- 
 
PROBABLE 
 
 467 
 
 PROBATE OF A WILL 
 
 stances, tell the truth : the former will, there- 
 fore, be entitled to credit, while the latter will 
 not. 
 
 PROBABLE. Having the appearance of 
 truth ; appearing to be founded in reason. 
 
 FROBABIiE CAUSE. Such a state of 
 facts as to make it a reasonable presumption 
 that their supposed existence was the cause of 
 action. 
 
 Such conduct on the part of the accused as 
 may induce the court to infer that the prose- 
 cution was undertaken from public motives. 
 1 Greenl. 135; s. c. 10 Am. Dec. 48. See, 
 also, 72 111. 262 ; 83 id. 548 ; 4 Vt. 363 ; 62 
 N. Y. 525. 
 
 Whether the circumstances relied on to 
 prove the existence of probable cause be true 
 or not is a fact to be found by the jury ; but 
 whether if found to be true, they amount to 
 probable cause, is a question of law ; 2 Q. B. 
 169; 29 Cal. 644 ; 27 Me. 266 ; 10 N. Y. 
 240; 20 Ohio, 119. 
 
 When there are grounds for suspicion that 
 a person has committed a crime or misde- 
 meanor, 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, how- 
 ever malicious the intention of the accuser 
 may have been ; Oro. Eliz. 70 ; 2 Term, 
 231 ; 1 Wend. 140, 345 ; 5 Humphr. 357 ; 3 
 B. Monr. 4. See 1 Penn. 234 ; 6 W. & S. 
 236 ; 1 Meigs, 84 ; 3 Brev. 94. And prob- 
 able cause will be presumed till the contrary 
 appears. , 
 
 In an action, then, for a malicious prosecu- 
 tion, the plaintiff is bound to show total ab- 
 sence of probable cause, whether the original 
 proceedings were civil or criminal ; 5 Taunt. 
 680; 1 Camp. 199; 2 Wils. 307; 1 Chitty, 
 Pr. 48 ; see Malicious Prosecution ; 7 
 Cra. 339; 1 Mas. 24; 11 Ad. & E. 483; 1 
 Pick. 524 ; 24 id. 81 ; 8 Watts, 240 ; 3 
 Wash. C. C. 31 ; 6 W. & S. 336 ; 2 Wend. 
 424; 1 Hill, So. C. 82; 3 Gill & J. 377; 9 
 Conn. 309 ; 3 Blackf. 445. 
 
 In cases of municipal seizure for the breach 
 of revenue, navigation, and other laws, if the 
 property seized is not condemned, the party 
 seizing is exempted from liability for such 
 seizure if the court before which the cause is 
 tried grants a certificate that there was pro- 
 bable cause for the seizure. If the seizure 
 was without probable cause, the party injured 
 has his remedy at common law ; see 7 Cra. 
 339; 2 Wheat. 118; 9 id. 362; 16 Pet. 342; 
 3 How. 197; 4 id. 251 ; 13 id. 498. 
 
 PROBATE OP A WILL. The proof 
 before an officer authorized by law that an 
 instrument offered to be proved or registered 
 18 the last will and testament of the deceased 
 person whose testamentary act it is alleged to 
 
 Jurisdiction. In England, the ecclesiastical 
 courts were the only tribunals in which, except 
 hy special prescription, the validity of wills of 
 personal estate could be established or disputed. 
 
 Hence in all courts, the seal of the ecclesiasti- 
 cal court is conclusive evidence of the factum 
 of a will of personalty ; from which it follows 
 that an executor cannot assert or rely on his 
 authority in any other court, without showing 
 that he has previously established it in the 
 spiritual court, — the usual proof of which is 
 the production of a copy of the will by which 
 he is appointed, certified under the seal of the 
 ordinary. This is usually called the probate. 
 
 The ecclesiastical courts have no jurisdiction 
 of devises of lands ; and in a trial at common 
 law or in equity the probate of a will is not ad- 
 missible as evidence, but the original will must 
 be produced, and proved the same as any other 
 disputed instrument. This rule has been 
 modified by statute in some of the United 
 States. In New York, the record, when the 
 will is proved by the subscribing witnesses, is 
 prima facie evidence, and provision is made 
 for perpetuating the evidence. See 1 2 Johns. 
 192 ; 14 id. 407. In Massachusetts, North 
 Carolina, and Michigan, the probate is conclu- 
 sive of its validity, and a will cannot be used 
 in evidence till proved ; 12 Allen, 1 ; 1 Gall. 
 622; 2 Mich. Comp. Laws (1871), 1375; 
 Battle Rev. 849. In Pennsylvania, the pro- 
 bate is not conclusive as to lands, and, although 
 not allowed by the register's court, it may be 
 read in evidence ; 5 Rawle, 80 ; but it becomes 
 conclusive as tp realty, unless within live 
 years from probate those interested shall con- 
 test its validity. In South Carolina the will 
 must be proved de novo in the court of common 
 pleas, though allowed in the ordinary; 1 N. 
 & M'C. 326. In New Jersey, probate is ne- 
 cessary, but it is not conclusive ; 1 Penn. N. 
 J. 42 ; except in actions not commenced with- 
 in seven years from the probate ; N. J. Rev. 
 Stat. 1250. See Letters Testamentary. 
 
 7he effect of the probate in this country, 
 and the rules in regard to jurisdiction, are 
 generally the same as in England ; but, as no 
 ecclesiastical courts exist in the United States, 
 probate is granted by some judicial officer, 
 who performs the part of the ordinary in 
 England, but generally with more ample 
 powers in relation to the administration of the 
 estate. See Surrogate ; Letters Testa- 
 mentary. 
 
 The proof of the will is a judicial proceed- 
 ing, and the probate a judicial act. The 
 party propounding the instrument is termed 
 the proponent, and the party disputing, the 
 contestant. In England, proof ex parte was 
 called probate in common form, and proof on 
 notice to the next of kin, proof in solemn 
 form. In the United States, generally speak- 
 ing, proofs are not taken until citation or 
 notice has been issued by the judge to all the 
 parties interested to attend. On the return 
 of the citation, the witnesses are examined, 
 and the trial proceeds before the court. If 
 the judge, when both parties have been 
 heard, decides in favor of the will, he admits 
 it to proTiate ; if against the will, he rejects 
 it. 
 
 More than one instrument may be proved ; 
 
PROBATION 
 
 468 
 
 PROCESS 
 
 and where the contents of two or more instru- 
 ments are ndt wholly inconsistent with each 
 other, they may all be admitted as together 
 constituting the last will and testament of the 
 deceased; Williams, Exec. 281. 
 
 On the probate the alleged will may be 
 contested on any ground tending to impeach 
 its validity : as, that it was not executed in 
 due form of law and according to the requisite 
 statutory solemnities ; that it was forged, or 
 was revoked, or was procured by force, fraud, 
 misrepresentation, or undue influence over a 
 weak mind, or that the testator was incom- 
 petent by reason of idiocy or lunacy. 
 
 PROBATION. The evidence which 
 proves a thing. It is either by record, writing, 
 the party's own oath, or the testimony of wit- 
 nesses. Proof. It also signifies the time of 
 a novitiate ; a trial. Nov. 5. 
 
 FROBATOR. In Old Bnglish 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, Law Diet. 
 
 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 pro- 
 batory term. 
 
 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 Brown, Civ. Law, 418 ; Dunlop, 
 Adm. Pr. 217. 
 
 PROBI ET IiEGALBS HOMINES 
 (Lat.). Good and lawful men ; persons com- 
 petent in point of law to serve on juries. Cro. 
 Eliz. 654, 751 ; Cro. Jac. 635 ; Mart. & Y. 
 147 ; Hard. 63 ; Bacon, Abr. Juries (A). 
 
 PROCEDENDO (Lat.). In 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 sufiiciently proved ; in which 
 i»case the superior court by this writ remits the 
 cause to the court from whence it came, com- 
 manding the inferior court to proceed to the 
 final hearing and determination of the same. 
 See 2 W. Blackst. 1060 ; 1 Stra. 527 ; 6 
 Term, 365 ; 4 B. & Aid. 535 ; 16 East, 887. 
 
 PROCEEDING-. In its general accep- 
 tation, 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 oppos- 
 ing judgments, and of executing. 
 
 Ordinary proceedings intend the regular 
 and usual mode of carrying on a suit by due 
 course at common law. 
 
 Summary proceedings are those where the 
 matter in dispute is decided without the in- 
 
 tervention of a jury : these must be author- 
 ized by the legislature, except perbaps in 
 cases of contempt, for such proceedings are 
 unknown to the common law. 
 
 In Louisiana there is a third kind of pro. 
 ceeding, known by the name of executory 
 proceeding, which is resorted to in the follow- 
 ing cases : When the creditor's right arises 
 from an act importing a confession of judg. 
 ment and which cbntains a privilege or mort- 
 gage in his favor ; or when the creditor de- 
 mands the execution of a judgment which has 
 been rendered by a tribunal difiFerent from 
 that within whose jurisdiction the execution 
 is sought. La. Code, art. 732. 
 
 In New York the code of practice divides 
 remedies into actions and special proceedings. 
 An action is an ordinary proceeding in a court 
 of justice, by which one party prosecutes 
 another party for the enforcement or proteo. 
 tion of a right, the redress or prevention of a 
 wrong, or the punishment of a public offence. 
 Every other remedy is a special proceeding. 
 
 PROCEEDS. Money or articles of value 
 arising or obtained from the sale of property. 
 Goods purchased with money arising from 
 the sale of other goods, or obtained on their 
 credit, are proceeds of such goods. 2 Pars. 
 Marit. Law, 201, 202. The sum, amount, 
 or value of goods sold, or converted into 
 money. Wharton Diet. 
 
 PROCERES (Lat.). The name by which 
 the chief magistrates in cities were formerly 
 known. St. Armand, Hist. Eq. 88. 
 
 PROCES-VERBAL. In 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 oflGoer, and what he 
 himself does upon the occasion. It is a spe- 
 cies of inquisition of office. 
 
 The prods-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, tliat 
 which serves to substantiate the charge, point 
 out its nature, the time, the place, the circum- 
 stances, state the proofs,, and presumptions, 
 describe the place,— in afford, everything 
 calculated to ascertain the truth. It must be 
 signed by the officer. Dalloz, Diet. 
 
 PROCESS. In Practice. The means 
 of compelling a defendant to ajppear in court, 
 after suing out the original writ, in civjl, and 
 after indictment, in criminal, cases. 
 
 The method taken by law to compel a com- 
 pliance with the original writ or commands ot 
 the coui-t. 
 
 In civil causes, in all real actions and for [J; 
 juries not committed against the peace, tnenrei 
 step was a summons, which was served in per- 
 sonal actions by twopersons called sui'iiioM"- 
 in real actions by erecting a white stick orwanu 
 on the defendant's grounds. If ^ summon 
 was disregarded, the next step was an attaclmeni 
 of the goods of the defendant, and m ^^f^ w 
 trespasfes the attachment issued at once w tnoui 
 a summons. If the attachment failed, a distnn 
 gas issued, which was continued tUl he appeareo. 
 
PROCESS 
 
 469 
 
 PliOCLAMATION 
 
 Here proeess ended in injuries not committed 
 witli force. In case of such injuries, an arrest 
 of tlie person was provided for. See Akkest. 
 In modern practice some of these steps are 
 omitted ; but the practice of the different states 
 is too various to admit tracing here the differ- 
 ences which have resulted from retaining differ- 
 ent steps of the process. 
 
 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 Jinal 
 process, or process of execution ; and then it 
 signifies all process which intervenes between 
 the beginning and end of a suit. 3 Bla. Com. 
 279. oee Regular Process. 
 
 In Patent IiaTiT-. The art or method by 
 which any particular result is produced. 
 
 A process, eo nomine, is not made the sub- 
 ject of a patent in our act of congress. It 
 isinchided under the general term "useful 
 art." Where a result or efi'ect is produced by 
 chemical action, by the operation or appli- 
 cation of some element or power of nature, 
 or of one substance to another, such modes, 
 methods, or operations are called processes. 
 A new process is usually the result of dis- 
 covery ; a machine, of invention. The arts 
 of tanning, dyeing, making water-proof cloth, 
 vulcanizing india-rubber, smelting ores, and 
 iiumeroas others, are usually carried on by 
 processes, as distinguished from machines. 
 But the term process is often employed more 
 vaguely in a secondary sense in which it cannot 
 he the subject of a patent. Thus, we say 
 that aboard is undergoing the process of being 
 planed, grain of being ground, iron of being 
 hammered or rolled. Here the term is used 
 subjectively or passively, as applied to the 
 material operated on, and not to the method 
 or mode of producing that operation, which 
 is by mechanical means, or the use of a ma- 
 chine as distinguished from a process. In this 
 use of the term it represents the function of a 
 machine, or the effect produced by it on the 
 material subjecteH to the action of the ma- 
 chine, and does not constitute a patentable 
 subject-matter, because there cannot be a valid 
 patent for the function or abstract effect of a 
 machine, but only for the machine which pro- 
 duces it. 15 How. 267, 268. See 2 B. & 
 AM. 349. 
 
 Letters patent for a process irrespective of the 
 particular mode or form of apparatus for carry- 
 ing it into effect are admissible under the laws 
 of the United States. Whoever discovers that a 
 certain useful result will be produced in any art, 
 machine, manufacture, or composition of matter, 
 by the use of certain means, is entitled to a 
 patent for it, provided he specifies the means he 
 uses in a manner so full and exact that any one 
 skilled in the science to which it appertains can, 
 by using the means he epeeifles, without any ad- 
 dition to or subtraction from them, produce pre- 
 cisely the result he discovers : 15 How. 62, US : 
 102 U. 8, 727, 728. 
 
 PROCESS OF GARSriSHMEHT. See 
 
 Gaunishment. ' 
 
 FROCESS^OF INTERPLEADER. A 
 
 means of determining the right to property 
 claimed by each of two or more persons, 
 which is in the possession of a third. 
 
 Formerly Tvhen two parties concurred in 
 bailment to a third person of things which 
 were to be delivered to one of them on the 
 performance of a covenant or other thing, 
 and the parties brought several actions of 
 detinue against the bailee, the latter might 
 plead the facts of the case and pray that the 
 plaintiffs in the several actions might inter- 
 plead with each other: this was called pro- 
 cess of interpleader. 3 Reeve, Hist. Eng. 
 Law, ch. 23 ; Mitf. Eq. PI. Jeremy ed. 141 ; 
 2 Story, Eq. Jur. § 802. 
 
 PROCESS OF LA^RT. See Dub Pro- 
 cess or Law ; 3 Morr. Transcr. 88. 
 
 PROCESSION. A peaceable procession 
 in the streets of a town, if lawful, and the 
 streets are not obstructed more than is ordi- 
 narily the case under such circumstances, is 
 not an indictable offence on the part of those 
 composing it ; 72 N. C. 25. 
 
 The peaceable procession in the streets of a 
 religious body, known as the Salvation Army, 
 has been held lawful, although the members 
 were aware of the lawless intention of their 
 opponents to make it the occasion of a riot ; 
 26 Soli. Journ. 505. See 26 Alb. L. J. 22. 
 
 PROCESSIONING. In Tennessee. A 
 
 term used to denote the manner of ascertain- 
 ing the boundaries of land, as provided for by 
 the laws of that state. 1 Tenn. Comp. Stat. 
 § 2020. The term is also used in North Car- 
 olina. 3 Murph. 504 ; 3 Dev. 268. 
 
 PROCHEIN (L. Fr.). Next. A term 
 somewhat used in modem law, and more fre- 
 quently in the old law : as, prochein ami, 
 prochein cousin. Co. Litt. 10. 
 
 PROCHEIN AMI (L. Fr.; spelled, also, 
 prochein amy and prochain amy). Next 
 friend. He who, without being appointed 
 guardian, sues in the name of an infant for the 
 recovery of the rights of the latter, or does 
 such other acts as are authorized by law : as, 
 in Pennsylvania, to bind the infant appren- 
 tice. 3 S. & R. 172 ; 1 Ashm. 27. Forsome 
 of the rules with respect to the liability or pro- 
 tection of a prochein ami, see 3 Madd. 468 ; 
 4 id. 461 ; 2 Stra. 709 ; 1 Dick. Ch. 346 ; 1 
 Atk. 570 ; 1 Ves. 409 ; 7 id. 425 ; 10 id. 184 ; 
 Edwards, Parties, 182-204. 
 
 PROCLAMATION. The act of causing 
 some state matters to be published or made 
 generally known. A written or printed docu- 
 ment in which are contained such matters, 
 issued by proper authority : as, the president's 
 proclamation, the governor's, the mayor'B 
 proclamation. The word proclamation is also 
 used to express the public nomination made 
 of any one to a high office : as, such a prince 
 was proclaimed emperor. 
 
 The president's proclamation may give 
 
PROCLAMATION OF EXIGENTS 470 
 
 PRODIGAL 
 
 force to a law, when authorized hy congress : 
 as, if congress were to pass an act, which 
 should take eifect upon the happening of a 
 contingent event, which was to be declared 
 by the president by proclamation to have 
 happened, in this case the proclamation would 
 give the act the force of law, which till then 
 it wanted. How far a proclamation is evi- 
 dence of facts, see Bacon, Abr. Evidence 
 (F) ; Dougl. 594, n.; Bull. N. P. 226 ; 12 
 Mod. 216 ; 8 State Tr. 212 ; 4 Maule & S. 
 546 ; 2 Camp. 44 ; Dane, Abr. oh. 96, a. 2, 
 3, 4 ; 6 111. 577 ; Brooke, Abr. 
 
 In Practice. The declaration made by 
 the crier, by authority of the court, that 
 something is about to be done. 
 
 It usually commences with the French word 
 Oyez, do you hear, in order to attract atten- 
 tion : it is particularly used on the meeting 
 or opening of the court, and at its adjourn- 
 ment ; it is also frequently employed to dis- 
 charge persons who have been accused of 
 crimes or misdemeanors. 
 
 PROCLAMATION OF EXIGENTS. 
 In Old English Practice. On awarding an 
 exigent, in order to outlawry, a writ of pro- 
 clamation issued to the sheriff of the county 
 where the party dwelt, to make three procla- 
 mations for the defendant to yield himself or 
 be outlawed. 
 
 PROCLAMATION OF A FINE. The 
 proclamation of a fine was a notice, openly 
 and solemnly given at all the assizes held in 
 the county where the lands lay. It was made 
 within one year after engrossing the fine ; and 
 anciently consisted in the fine as expressed 
 being openly read in court sixteen times, — 
 four times in the term in which it was made, 
 and four times in each of the three succeeding 
 terms. This, however, was afterwards re- 
 duced to one reading in each term. These 
 proclamations were upon transcripts of the 
 fine, sent by the justices of the common pleas 
 to the justices of assize and the justices of the 
 peace. Abb. Law Die. See 2 Bla. Com. 
 352. 
 
 PROCLAMATION OF REBELLION. 
 In Old English Practice. When a party 
 neglected to appear upon a subpoena, or an 
 attachment in chancery, a writ bearing this 
 name issued ; and, if he did not surrender 
 himself by the day assigned, he was reputed 
 and declared a rebel. 
 
 PROCREATION. The generation of 
 children : it is an act authorized by the law 
 of nature. One of the principal ends of mar- 
 riage is the procreation of children. Inst. 
 tit. 2, in pr. 
 
 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 courta of civil, 
 ecclesiastical, and admiralty law. The proctor 
 is somewhat similar to the attorney. Ayliffe, 
 Parerg. 421. By the Judicature Acts, proc- 
 tors now practise in all divisions of the 
 supreme court of judicature. 
 
 PROCURATION. In Civil Law. The 
 
 act by which one person gives power to another 
 to act in his place, as he could do himself. 
 A letter of attorney. 
 
 An express procuration is one made by the 
 express consent of the parties. An implied 
 or tacit procuration takes place when an in- 
 dividual sues another managbg his affairs 
 and does not interfere to prevent it. Dig 17 
 1. 6. 2; 50. 17. 60; Code, 7. S2. 2. 
 
 Procurations are also divided into those 
 which contain absolute power, or a general 
 authority, and those which giveonly a limited 
 power. Dig. 3. 3. 68 ; 17. 1. 60. 4. Pro- 
 curations are ended in three ways : Jint, by 
 the revocation of the authority ; second, by 
 the death of one of the parties ; third, 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, 85. 
 See Authority ; Letter of Attorney ; 
 Mandate. 
 
 PROCURATIONS. In Ecclesiastical 
 Law. Certain sums of money which parish 
 priests pay yearly to the bishops or archdea- 
 cons ratione visitationis. Dig. 3. 39. S5 ; 
 Ayliffe, Parerg. 429 ; 17 Viner, Abr. S44. 
 
 PROCURATOR. In 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. See Attoejtet ; Adthokitt. 
 
 PROCURATOR, FISCAL. In Scotcli 
 LavT-. A public prosecutor. Bell, Diet. 
 
 PROCURATOR LITIS (Lat.). In Civil 
 Lavr. One who by command of another in- 
 stitutes and carries on for him a suit. Vicat, 
 Voc. Jur. Procurator is properly used of the 
 attorney of actor (the plaintiff), defensor of 
 the attorney of reus (the defendant). It is 
 distinguished from advocatus, who was one 
 who undertook the defence of persons, not 
 things, and who was generally the patron of 
 the person whose defence he prepared, the 
 person himself speaking it. It is also distin- 
 guished from cognitor, who conducted the 
 cause in the presence of his principal, and 
 generally in cases of citizenship ; whereas the 
 procurator conducted the cause in the absence 
 of his principal. Calvinus, Lex. 
 
 PROCURATOR IN REM SXTAM. In 
 Scotch Law. A terra which imports that 
 one is acting as attorney as to his own prop- 
 erty. When an assignment of a thing is made, 
 as a debt, and a procuration or power of attor- 
 ney is given to the assignee to receive the 
 same, he is in such case procurator «»J«» 
 suam. 3 Stair, Inst. 1. 2. 8, etc. ; S Erskine, 
 Inst. 3. 5. 2 ; 1 Bell, Diet. b. 5, c. 2, s. 1, 
 §2. 
 
 PROCURATORIUM (Lat.). The proxy 
 or "instrnment by which a proctor is consti- 
 tuted and appointed. 
 
 PRODIGAL. InCivULaw. A person 
 who, though of full age, is incapable oi 
 
PRODITORIE 
 
 471 
 
 PROFITS 
 
 mani^ing his affairs, and of the obligations 
 which attend them, in consequence of his bad 
 conduct, and for whom a curator is therefore 
 appointed. 
 
 PRODITORIE (].iat.)- Treasonably. 
 This is a technical word formerly used in 
 indictments for treason, when they were writ- 
 ten in L^tin. Tomlins. 
 
 FRODUCENT. In Ecclesiastical Law. 
 He who produces a witness to be examined. 
 
 PRODUCTION OP SUIT (-productio 
 sectoB)- The concluding clause of all declar- 
 ations is, " and thereupon he brings his suit." 
 In old pleading this referred to the {jroduc- 
 tion by the plaintiff of his secta or suit, i.e. 
 persons prepared to confirm what he had 
 stated in the declaration. 
 
 The phrase has remained ; but the practice 
 from which it arose is obsolete ; 3 Bla. Com. 
 295 ; Steph. PI. 428. 
 
 PROPANE. That which has not been 
 consecrated. By a profane place is under- 
 stood one which is neither sacred, nor sancti- 
 fied, nor religious. Dig. 11. 7. 2. 4. 
 
 PROPANBLY. In a profane manner. 
 In an indictment, under the act of assembly 
 of Pennsylvania, against profanity, it is re- 
 quisite that the words should be laid to have 
 been spoken profanely; 11 S. & R. 394. 
 
 PROFANENBSS, PROPANITY. In 
 Criminal Laiv. A disrespect to the name 
 of God or His divine providence. This is 
 variously punished by statute in the several 
 states. See Cooley, Const. Lim. 660, 688. 
 
 PROPECTITUS (Lat.). In Civil Law. 
 That which descends to us from our ascend- 
 ants. Dig. 23. 3. 5. 
 
 PROPERT IN CURIA (Lat. he pro- 
 duces in court : sometimes written profert in 
 curiam, with the same ineaning) . In Plead- 
 ing. A declaration on the record thut a party 
 produces the deed under which he makes title 
 in court. In ancient practice, the deed itself 
 was actually produced ; in modern times, the 
 allegation only is made in the declaration, 
 and the deed is then constructively in pos- 
 session of the court; 3 Salk. 119; 6 M. & 
 G. 277; 11 Md. 322. 
 
 Profert is, in general, necessary when either 
 party pleads a deed and claims rights under 
 it, whether plaintiff; 2 Dutch. 293 ; or defen- 
 dant; 17 Ark. 279; to enable the court to 
 inspect and construe the instrument pleaded, 
 and to entitle the adverse party to oyer there- 
 of; 10 Co. 92 6; 1 Chitty, PI. 414; 1 
 Archh. Pr. 164; and is not necessary when 
 the party pleads it without making title under 
 it; Gould, PI. c. 7, p. 2, § 47. But a party 
 who is actually or presumptively unable to 
 produce a deed may plead it without profert, 
 as in suit by a stranger; Comyna, Dig. 
 Pleader, O 8 ; Cro. Jac. 217 ; Cro., Car. 
 441; Garth. 316; or one claiming title by 
 operation of law ; Co. Litt. 225 ; Bacon, 
 Abr. Pleas (112); 5 Co. 75 ; or where the 
 deed is in the possession of the adverse party 
 
 or is lost. In all these cases the special facts 
 must be shown, to excuse the want of pro- 
 fert. See Gould, PI. c. 8, p. 2 ; Lawes, PI. 
 96 ; 1 Saund. 9 a, note. Profert and oyer 
 are abolished in England by the Common 
 Law Procedure Act, 15 & 16 Vict. v. 76 ; 
 and a provision exists, 14 & 15 Vict. c. 99, 
 for allowing inspection of all documents in 
 the possession or under the control of the 
 party against whom the inspection is asked. 
 See 25 E. L. & E. 304. In many of the 
 states of the United States profert has been 
 abolished, and in some instances the instru- 
 ment must be set forth in the pleading of the 
 party relying upon it. The operation of pro- 
 fert and oyer, where allowed, is to make the 
 deed a part of the pleadings of the party pro- 
 ducing it; 11 Md. 322; 3 Cra. 234. See 7 
 Cra. 176. 
 
 PROFESSION. A public declaration 
 respecting something. Code, 10. 41. 6. A 
 state, art, or mystery : as, the legal profession. 
 Dig. 1. 18. 6. 4; Domat, Dr. Pub. 1. 1, t. 9, 
 s. 1, n. 7. 
 
 In Ecclesiastical Law. The act of en- 
 tering into a religious order. See 1 7 Viner, 
 Abr. 545. 
 
 The term professions in a statute laying a 
 tax, includes lawyers ; 59 Ga. 187. 
 
 PROFITS. The advance in the price of 
 goods sold beyond the cost of purchase. 
 
 The gain made by the sale of produce or 
 manufactures, after deducting the value of 
 the labor, materials, rents, and all expenses, 
 together with the interest of the capital em- 
 ployed. 
 
 An excess of the value of returns over the 
 value of advances. 
 
 The excess of receipts over expenditures ; 
 that is, net earnings. 15 Minn. 519. 
 
 The receipts of a business, deducting cur- 
 rent expenses ; it is equivalent to net receipts. 
 94 U. S. 500. ^ 
 
 This is a word of very extended signification. 
 In commerce, it means the advance in the price of 
 goods sold beyond the cost of purchase. In dis- 
 tinction from the wages of labor, it is well under- 
 stood to imply the net return to the capital or 
 stock employed, after deducting all the expenses, 
 including not only the wages of those employed 
 by the capitalist, but the wages of the capitalist 
 himself for superintending the employment of his 
 capital or stock. Adam Smith, Wealth of Nat. 
 b. i. c. 6, and M'CuUoch's Notes ; MUl, Polit. 
 Econ. c. 15. After indemnifying the capitalist 
 for his outlay there commonly remains a sur- 
 plus, which is his profit, the net income from his 
 capital. 1 Mill, Polit. Econ. c. 15. The word 
 profit is generally used by writers on political 
 economy to denote the difference between the 
 value of advances and the value of returns made 
 by their employment. ' 
 
 The profit of the farmer and the manufacturer 
 is the gain made by the sale of produce or manu- 
 factures, after deducting the value of the labor, 
 materials, rents, and all expenses, together with 
 the interest of the capital employed, — whether 
 land, buildings, machinery, instruments, or 
 money. The rents and profits of an estate, the 
 income or the net income of it, are all equivalent 
 expressions. The income or the net income of an 
 
PROFITS 
 
 472 
 
 PROFITS 
 
 estate means only the profit it will yield after 
 deducting the charges of management ; 6 Me. 
 a02;.35id. 430. 
 
 Under the term profit is comprehended the pro- 
 duce of the soil, whether it arise above or below 
 the surface : as, herbage, wood, turf, coals, mine- 
 rals, stones ; also fish in a pond or running 
 water. Profits are divided into profits d prendre, 
 or those taken and enjoyed by the mere act of 
 the proprietor himself, and profits d vendre, 
 namely, such as are received at the hands of and 
 rendered by another. Hamm. N. P. 173. 
 
 Profits are divided by writers on political 
 economy into gross and net, — gross profits being 
 the whole difference between the value of advances 
 and the value of returns made by their employ- 
 ment, and net profits being so much of that difc 
 ference as is attributable solely to the capital em- 
 ployed. The remainder of the difl'erence, or, in 
 other words, the gross profits minus the n£t 
 profits, has no particular name ; butit represents 
 the profits attributable to Industry, skill, and 
 enterprise. See Malthus, Def. in Polit. Econ. ; 
 M'Culloch, Polit. Econ. 563. But the word 
 profit is generally used in a less extensive signifi- 
 cation, and presupposes an excess of the value 
 of returns over the value of advances. 
 
 Using profit in this more limited and popu- 
 lar sense, persons who share profits do not 
 necessarily share losses ; for they may stipu- 
 late for a division of gain, if any, and yet some 
 one or more of them may, by agreement, be 
 entitled to be indemnified against losses by the 
 others : so that whilst all share profits, some 
 only bear losses. Persons who share gross 
 returns share profits in the sense of gain ; but 
 they do not by sharing the returns share losses, 
 for these fall entirely on those making the ad- 
 vances. Moreover, although a division of 
 gross returns is a division of profits if there 
 are any, it is so only incidentally, and because 
 such profits are included in what is divided : 
 it is not a division of profits as such ; and under 
 an agreement for a division of gross returns, 
 whatever is returned must be divided, whether 
 there be profit or loss, or neither ; 1 Lindl. 
 Part. Engl. ed. 10. These considerations 
 have led to the distinction between agreements 
 to share profits and agreements to share gross 
 returns, and to the doctrine that, whilst an 
 agreement to share profits creates a partner- 
 ship, an agreement to share gross returns does 
 not; 1 Lindl. Part. Engl. ed. 11. See 10 Vt. 
 170; 12 Conn. 69; 1 Campb. 329 ; 2 Curt. 
 C. C. 609; 38 N. H. 287, 304. 
 
 Commissions may be considered as profits, 
 for some purposes. A participation in com- 
 missions has been held such a participation in 
 profits as to constitute the participants part- 
 ners; 2 H. Blackst. 235; 4 B. & Aid. 663. 
 So, commissions received from the sales of a 
 pirated map are profits which must be ac- 
 counted for by the commission merchant on a 
 bill by the proprietor of the copyright; 2 
 Curt. C. C. 608. As between partners, all 
 gains which equitably belong to the firm, but 
 which are clandestinely received by one part- 
 ner, are accounted profits of the firm ; Story, 
 Part. § 174; 2 Curt. C. C. 608, 609. 
 
 Depreciation of buildings in which a busi- 
 ness is carried on, though they were erected 
 by expenditure of the capital invested, is not 
 
 ordinarily or necessarily considered in est™, 
 ting the profits ; 94 U. S. 500. 
 
 A direction or power given in a will to raise 
 money out of the rents and profits of an estate 
 for the payment of debts and legacies, or to 
 raise a portion within a definite period, within 
 which it could not be raised out of the annual 
 rents and profits, authorizes a sale- 2 Ch 
 Cas. 205; 1 Vern. 104; 2 id. 26, 310, 42o' 
 424; 1 Ves. Sen. 491; 1 Atk. 550. And 
 judges in latter times, looking to the incon- 
 venience of raising a large sum of money in 
 this manner, have inclined much to treat a 
 trust to apply the rents and profits in raising 
 a portion, even at an indefinite period, as 
 authorizing a sale or mortgage; 2 Jarm 
 Wills, 282, 383 ; 1 Ves. 234; 1 Atk. 505; 1 
 Ves. Sen.' 42. But, as a general rule, the 
 question whether the money is to be raised Ky 
 a sale or mortgage or out of the annual rents 
 and profits will depend upon the nature of the 
 purpose for which the money is to be raised, 
 and the general tenor of the will ; 2 Jarm 
 Wills, 383, 384 ; 3 Bro. P. C. 66 ; 3 Y. & 
 J. 360; 1 Atk. 650; 1 Russ. & M. 590; 3 
 id. 97 ; 2 P._ Wms. 63. The circumstances 
 that have chiefly influenced the decisions are 
 — the appointment of a time within which the 
 charge cannot be raised by annual profits ; the 
 situation of the estate, where a sale or mort- 
 gage would be very prejudicial, as in the case 
 of a reversion, especially if it would occasion 
 any danger that the charge would not be an- 
 swered in its full extent ; the nature of the 
 charge, as where it is for debts or portions, 
 and, in the latter instance, the age or death of 
 the child ; 2 Ves. 480, n. 1 ; 1 Ch. Cas. 170; 
 2 id. 205.; 1 Vern. 256; 2 id. 26, 72, 420; 
 2 P. Wms. 13, 650 ; 1 Fonbl. Eq. 440, n. (o); 
 1 Atk. 506, 650 ; 2 id. 358. But in no case 
 where there are subsequent restraining words 
 has the word profit been extended ; Free. Ch. 
 586, note, and the cases cited there ; 1 Atk. 
 506 ; 2 id. 105. 
 
 A devise of the rents and profits of land is 
 equivalent to a devise of the land itself, and 
 will carry the legal as well as the beneficial 
 interest therein ; 1 Ves. Sen. 171 ; 2 B. & 
 Aid. 42 ; Plowd. 640 ; 9 Mass. 372 ; 1 Cush.i 
 93; 1 Ashm. 131 ; 1 Spenc. 142; 17 Wend. 
 393; 5 Me. 119; 3b id. 4,14; 1 Atk. 506; 2 
 id. 358 ; 1 Bro. C. C. 310. A direction hy 
 the test-fitpr that a certain person shall receive 
 for his support the net profits of the land is a 
 devise of the land itself, for such period of 
 time as the profits were devised ; 35 Me. 419. 
 
 An assignment of the profits of an estate 
 amounts to an equitable lien, and would en- 
 title the assignee in equity to insist upon a 
 mortgage. Thus, if a tenant for life of the 
 real estate should, by covenant, agree to set 
 apart and pay the whole or a portion of the 
 annual profits of that estate to trustees for 
 certain objects, it would create a lien in the 
 nature of a trust on those profits against him 
 and all persons claiming as volunteers or with 
 notice under him ; 2 Cox, Ch. 253 ; s. C. 1 
 Ves. 477 ; 3 Bro. C. C. 631, 538. 
 
PROFITS 
 
 473 
 
 PROLOCUTOU 
 
 Profits expected to arise from merchandise 
 employed in maritime commerce are a pro- 
 per subject of insurance in England and in 
 the United States; Marsh. Ins. b. 1, ch. 3, 
 §8; 3 Kent, 271; 16 Pick. 399; 5 Mete. 
 Mass. 391; 1 Sumn. 451. So in Italy; 
 Targa, cap. xliii. no. 5 ; Portugal ; Santerna, 
 part iii. no. 40; and the Haose Towns; 2 
 Magnus, 213; Beneck, Ass. chap. 1, sect. 10. 
 voir 1, p. I'O- But in France; Code de 
 Comm! art. 347; Holland; Bynkershoeck, 
 Quajst. Priv. Jur. lib. iv. c. 5; and in Spain, 
 except to certain distant parts ; Ordinanzas 
 de Bilboa, ch. xxii. art. 7, 8, 11 ; it is illegal 
 to insure expected profits. Such insurance is 
 required by the course and interest of trade, 
 and has been found to be greatly conducive to 
 its prosperity ; 3 Kent, 271 ; Lawrence, J., 2 
 East, 544 ; 1 Arnould, Ins. 204, 205. Some- 
 times the profits are included in a valuation 
 of the goods from which they are expected to 
 ilrise ; sometimes they are insured as profits ; 
 
 I Johns. 433 ; 3 Pet. 222 ; 1 Sumn. 451 ; 6 
 E. & B. 312 ; 2 East, 544 ; 6 id. 316. They 
 must be insured as profits ; May, Ins. § 79. 
 They may be insured equally by valued 
 and by open policies; 1 Ajnould, Ins. 
 205 ; 3 Camp. 267. But it is more judicious 
 to make the valuation ; 1 Johns. 433 ; 3 
 Kent, 273. The insured must have a real in- 
 terest in the goods from which the profits are 
 expected ; 3 Kent, 271 ; but he need not 
 have the absolute property in them ; 1 6 Pick. 
 397, 400 ; see May, Ins. § 79. 
 
 A trustee, executor, or guardian, or other 
 person standing in a like relation to another, 
 may be made to account for and pay all the 
 profits made by him in any of the concerns of 
 his trust, as by embarking the trust funds in 
 trade; 1 Story, Eq. Jur. § 465 ; 2 My. & K. 
 66, 672, note ;" 1 Ves. 32, 41, 42, 43, in note ; 
 
 II id. 61 ; 2 V. & B. 315 ; 1 J. & W. 122, 
 131 ; 2 Will. Exec. 1311 ; 1 S. & R. 245 ; 
 1 Maule & S. 412 ; 2 Bro. C. C. 400 ; 10 
 Pick. 77; Lind. Part. 
 
 The expected profits of a special contract 
 may be reckoned as a part of the damages 
 for a failure to fulfil it, where it appears that 
 such profits would have accrued from the con- 
 tract itseH as the direct and immediate conse^ 
 quence of its fulfilment ; 13 How. 307, 344 ; 
 7 Gush. 516, 522, 523 ; 8 Exoh. 401 ; 16 N. 
 T. 489; Mayne, Damages, 15, 16 ; 2 C. B. 
 N. 8. 592. But where the profits are such 
 only as were expected to result from other 
 independent bargains actually entered into on 
 the faith of such special contract, or for the 
 purposes of fulfilling it, or are contingent upon 
 future bargains or speculations or states of the 
 market, they are too remote and uncertain to 
 be relied upon as a proper basis of damages ; 
 13 How. 307, 344 ; 38 Me. 361 ; 7 Cush. 516, 
 522, 523 ; 7 Hill, 61 ; 13 C. B. 353. See, 
 also, 21 Pick. 378, 381 ; 1 Pet. Q. C. 85, 94 ; 
 3 Wash. C. C. 184 ; 1 Pet; 172 ; 11 S. & R. 
 445. 
 
 A purchaser is entitled to the profits of the 
 estate from the time fixed upon for complet- 
 
 ing the contract, whether he does or does not 
 take possession of the estate ; 2 Sugd. Vend, 
 ch. 16, sect. 1, art. 1 ; 6 Dana, 298 ; 3 Gill, 
 82. See 12 M. & W. 761. 
 
 Under what circumstances a participation or 
 sharing in profits will make one a partner in 
 a trade or ad-venture, see Partners ; Part- 
 nership. 
 
 FROGRESSIOIT (Lat. progressio; from 
 pro and gredior, to go forward). That state 
 of a business which is neither the commence- 
 ment nor the end. Some act done after the 
 matter has commenced and before it is com- 
 pleted. Plowd. 343. See Consummation; 
 Inception. 
 
 PROHIBITION (Lat. prokibitio ; from 
 pro and Jiabeo, to hold back). In Practice. 
 The name of a writ issued by a superior court, 
 directed to the judge and parties of a suit in 
 an inferior court, commanding them to cease 
 from the prosecution of the same, upon a 
 suggestion that the cause originally, or some 
 collateral matter arising therein, does not be- 
 long to that jurisdiction, but to the cognizance 
 of some other court. 3 Bla. Cora. 112; 
 Comyns, Dig. ; Bacon, Abr. ; Saund. Index; 
 Viner, Abr. ; 2 Sell. Pr. 308 ; Ayliflte, Pa- 
 rerg. 434 ; 2 H. Blackst. 533. 
 
 The writ of prohibition may also be issued 
 when, having jurisdiction, the court has at- 
 tempted to proceed by rules differing from 
 those which ought to be observed ; Bull. N. 
 P. 219 ; or when by the exercise of its juris- 
 diction, the inferior court would defeat a legal 
 right; 2 Ohitty, Pr. 355. 
 
 PROHIBITIVE IMPEDIMENTS. 
 Those impediments to a marriage which are 
 only followed by a punishment, but do not 
 render the marriage null. Bowyer, Mod. Civ. 
 Law, 44. 
 
 PROJET. In International Law. The 
 draft of a proposed treaty or convention. 
 
 PROLES (Lat.). Progeny; such issue 
 as proceeds from a lawful marriage ; and, in 
 its enlarged sense, it signifies any children. 
 
 PROLETARITJS. In Civil Law. One 
 who had no property to be taxed, and paid 
 a tax only on account of his children (prules); 
 a person of mean or common extraction. 
 The word has become, in French, proUiaire, 
 signifying one of the common people. 
 
 PROLICIDE (Lat. proles, oflTspring, 
 ccedere, to kill). In Medical Jurispru- 
 dence. A word used to designate the de- 
 struction of the human offspring. Jurists 
 divide the subject into foeticide, or the de- 
 struction of the foetus in utero, and infanticide, 
 or the destruction of the new born infant. 
 Ryan, Med. Jur. 137. 
 
 FROLIXIT7. The unnecessary and su- 
 perfluous statement of facts in pleading or 
 in evidence. This will be rejected as imper- 
 tinent. 7 Price, 278, n. 
 
 PROLOCUTOR (Lat. pro and loquor, to 
 speak before). In Ecclesiastical Law. The 
 president or chairman of a convocation. 
 
PROLONGATION 
 
 474 PROMISE OF MARRIAGE 
 
 PROLONGATION. Time added to the 
 duration of something. 
 
 When the time is lengthened during which 
 a party is to perform a contract, the sureties 
 of such a party are, in general, diseharged, 
 miless the sureties consent to such prolonga- 
 tion. See Giving Time. 
 
 In the civil law the prolongation of time to 
 the principal did not discharge the surety; 
 Dig. 2. 14. 27 ; 12. 1. 40. 
 
 PROLYT.ai (Lat.). In Roman 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 
 (TtptAvtm) prolytse omnino soluti. They 
 studied chiefly the Code and the imperial 
 constitutions. See Dig. Pref. Prim. Const. 
 2 ; Calvinus, Lex. 
 
 FROMATERTERA (Lat.). Great ma- 
 ternal aunt; the sister of one's grandmother. 
 Inst. 3. 6. S ; Dig. 38. 10. 10.' 14 et seq. 
 
 PROMISR (Lat. promittn, to put for- 
 ward). An engagement by which the pro- 
 misor contracts with another to perform or 
 do something to the advantage of the latter. 
 
 When a promise is made, all that is said at 
 the time in relation to it must be considered : 
 if, therefore, a man promises to pay all he 
 owes, accompanied by a denial that he owes 
 any thing, no action will lie to enforce such a 
 promise; 15 Wend. 187. 
 
 And when the promise is conditional, the 
 condition must be performed before it be- 
 comes of binding force ; 7 Johns. 36. See 
 Condition; Contracts; 5 East, 17; 2 
 Leon. 224 ; 4 B. & Aid. 595. 
 
 PROMISE OF MARRIAGE. A con- 
 tract mutually entered into by a man and a 
 woman that they will marry each other. 
 Every marriage is necessarily preceded by an 
 express or implied contract of this descrip- 
 tion, as a wedding cannot be agreed upon and 
 celebrated at one and the same instant ; Addi- 
 son, Contr. 676. 
 
 A promise of marriage is not to be likened 
 to an actual marriage. The latter, as has been 
 seen in the article on marriage, is not a con- 
 tract, but a legal relation ; while the former 
 is an executory contract in the strict sense of 
 the term, and governed in general by the or- 
 dinary law of contracts, though it has certain 
 peculiarities of its own. As in other con- 
 tracts, the parties must be sui juris. If, 
 therefore, the man or the woman be an in- 
 fant, or labor under any other legal disability, 
 he or she will not be bound by a promise of 
 marriage ; but if one of the parties be an in- 
 fant and the other be an adult, the promise 
 will be binding upon the latter; Stra. 937; 
 5 Cow. 475 ; 7 id. 22 ; 5 Sneed, 659 ; 1 D. 
 Chipm. 252. A promise made during in- 
 fancy may be ratified after the infant attains 
 majority. A late English statute requires a 
 new and distinct contract, after majority, in 
 order to bind the infant on his promise to 
 marry after he comes of age ; but a new con- 
 
 tract may be inferred from continued 
 acceptance of the engagement; L R s 
 C. P. 410; and see 4 C. P. Div. 485 
 Neither does it follow, as we shall see prei 
 sently, that a promise of marriage is not 
 binding because the parties to the promise 
 cannot form a valid marriage ; they may be 
 competent to contract, though not competent 
 to marry. 
 
 There must be a legal and valid considera- 
 tion ; but as there are always mutual pro- 
 mises, they are a sufficient consideration for 
 each other. There must be a meeting of tlie 
 minds of the parties, i.e. a request or proposi- 
 tion on the one side, and an assent on the 
 other. If the communications between the 
 parties are verbal, the only questions which 
 usually arise relate to evidence and proof. 
 The very words or time or manner of the pro- 
 mise need not be proved, but it may be in- 
 ferred from the conduct of the parties, and 
 from the circumstances which usually attencf 
 an engagement to marry : as, visiting, the un- 
 derstanding of friends and relations, prepara- 
 tions for marriage, and the reception of the 
 man by the woman's family as a suitor; 3 
 Salk. 16 ; 15 Mass. 1 ; 2 D. & C. 282 ; 2 
 Penn. 80; ISiflT. 331; 1 Ohio St. 26; 2 C. 
 & P. 553; 1 Stark. 82; 6 Cow. 254; 26 
 Conn. 398 ; 4 Zabr. 291. But as to the evi- 
 dence of a contract to marry, more direct 
 proof is now commonly required than for- 
 merly, since modern statutes permit parties 
 themselves to take the stand ; Schoul. Hush. 
 & W. § 43. Therefore a promise cannot be in- 
 ferred from devoted attention, frequent visits, 
 and apparently exclusive attention ; 53 N. Y. 
 267 ; nor from mere presents or letters not to 
 the point ; see 2 Brewst. 487 ; nor from the 
 plaintiff's wedding preparations, unknown 
 to the defendant; 48 Ind. 562; 63 111. 41; 
 nor from the woman's unexplained possession 
 of an engagement ring ; 2 Brewst. 487. See 
 generally 53 N. Y. 267. When the parties 
 are at a distance from each other, and the of- 
 fer is made by letter, it will be presumed to 
 continue for a reasonable time for the con- 
 sideration of the party addressed; and if ac- 
 cepted within a reasonable time, and before it 
 is expressly revoked, the contract is then com- 
 plete ; 1 Pars^ Contr. b. 2, c. 2. No particu- 
 lar form of words is necessary; 53 N. Y.267. 
 
 A. promise of marriage is not within the 
 third clause of the fourth section of the Sta- 
 tute of Frauds, relating to agreements made 
 upon consideration of marriage ; but if not to 
 be performed within a year, it has been held 
 to be within the fifth clause, and must, there- 
 fore, be in writing in order to be binding; 1 
 Stra. 34; 1 Ld. Raym, 387; 58 Ind. 29; 2 
 N. H. 515. But t;he latest cases areinclmed 
 to construe the statute so as not to aflect 
 promises to marry; 5,6 Me. 187; 20 Unn, 
 495 ; Schoui. Husb. & W. § 44 ; themama^e 
 may be performed within a year, and that is 
 enough ; see 85 111. 222. 
 
 If no time be fixed and agreed upon for tne 
 performance of the contract, it is, m contem- 
 
PROMISE OF MARRIAGE 
 
 475 
 
 PROMISE OF MARRIAGE 
 
 platlon of law, a contract to marr^ within a 
 reasonable period, considering the circumstan- 
 ces of the age, pecuniary means, et<;. , of the 
 contracting parties, and either party may call 
 upon the other to fulfil the engagement, and 
 in case of default may bring an action for 
 damages. If both parties lie by for an unrea- 
 sonable period, and do not treat the contract 
 as continuing, it will be deemed to be aban- 
 doned by mutual consent. If the parties are 
 somewhat advanced in years, and the mar- 
 riage is appointed to take place at a remote 
 period of time, the contract would be voidable 
 at the option of either party, as in restraint of 
 marriage; Addison, Contr. 678. 
 
 Upon a refusal to marry, an action lies at 
 once, although the time set for the marriage 
 has not come ; 42 N. Y. 246 ; so if a party 
 puts it out of his power to perform his promise 
 of marriagfe; 27 Mich. 217 ; 15 M. &W. 189. 
 , A refusal to fulfil the contract may be as well 
 manifested by acts as by words. After the 
 lapse of a reasonable time, if one party, with- 
 out excuse, neglects or refuses to fulfil his 
 promise, the other may consider this a breach 
 and sue ; 42 Mich. 346. 
 
 The defences which may be made to an 
 action for a breach of promise of marriage are, 
 of course, various ; but it is only necessary to 
 notice in this place such as are in some degree 
 peculiar. Thus, if either party has been con- 
 victed of an infamous crime, or has sustained 
 a bad character generally, and the other was 
 ignorant of it at the time of the engagement, 
 or if the woman has committed fornication, 
 and this was unknown at the time to the man 
 who promised to marry her, or if the woman 
 prove unchaste subsequently ; 7 7 Penn. 504 ; 
 51 m. 288 ; or if the woman is deeply in- 
 volved in debt at the time of the engagement, 
 and the fact is kept secret from her intended 
 husband; Addison, Contr. 680; but see IE. 
 B. & E. 7, 96 ; or if false representations are 
 made by the woman, or by her friends in col- 
 lusion with her, as to her circumstances and 
 situation in life and the amount of her fortune 
 and marriage portion, either of these will con- 
 stitute a good defence ; 1 C. & P. 350, 529 ; 
 3 Esp. 236 ; 44 Me. 164 ; 1 C. & K. 463 ; 3 
 Bing;h. n. c. 54 ; 5 La. An. 316 ; 18 111. 44. 
 But it has been held not to be a defence that 
 the plaintiff at the time of the engagement 
 was under an engagement to marry another 
 person, unless the prior engagement was fraud- 
 ulently concealed ; 1 E. B. & E. 796. But 
 see 1 Pars. Contr. 550. And the defendant's 
 pre-engagement would be no defence ; Schoul. 
 Hush. & W. § 48. 
 
 If after the engagement either party is 
 guilty of gross misconduct, inconsistent with 
 the character which he or she was fairly pre- 
 sumed to possess, the other party will be re- 
 leased ; 4 Esp. 256 ; so if either party is 
 guilty of acts of unehastity after the making 
 the promise, the other party will be absolved ; 
 51 111. 288 ; 77 Penn. 504 ; but mutual impro- 
 prieties and lewdness between the parties will 
 not be allowed to bar the action or to go in 
 
 mitigation or aggravation of damages ; 3 
 Pittsb. 84. If the engagement is made with- 
 out any agreement respecting the vfoman's 
 property, and she afterwards disposes of any 
 considerable portion of it without her intended 
 husband's knowledge and consent, or if she 
 insists upon having her property settled to her 
 own separate use, it is said that this will justify 
 him in breaking off the engagement ; Addi- 
 son, Contr. 680. So, if the situation and posi- 
 tion of either of the parties as regards his or her 
 fitness for the marriage relation is materially 
 and permanently altered for the worse (wheth- 
 er with or without the fault of such party) after 
 the engagement, this will release the other 
 party. Thus, if one of the parties is attacked by 
 blindness, or by an incurable disease, or any 
 malady calculated permanently to impair and 
 weaken the constitution, this will dispense 
 with the performance of the contract on the 
 part of the other party ; Addison, Contr. 681 ; 
 Pothier, Tr. du Mar. no. 1, 60, 61, 63. (In 
 1 Abb. app. sec. 282, it was held that evi- 
 dence that the plaintiff drank intoxicating 
 liquors to excess was not admissible as a de- 
 fence.) Whether it will also constitute a de- 
 fence for the party aflflioted, is a question of 
 much difficulty. In 1 E. B. & E. 746, 765, 
 where it appeared that the defendant since the 
 engagement had become afflicted with con- 
 sumption, whereby he was rendered incapa- 
 ble of marriage without great danger of his 
 life, it was held, by six judges against five, 
 that this constituted no defence ; though it 
 seemed to be agreed that it would have been 
 a good defence for the other party. 
 
 The common opinion that an agreement to 
 marry between persons incapable of forming 
 a valid marriage is necessarily void, is erro- 
 neous. If the disability pertains only to one 
 of the parties, and the other party was igno- 
 rant of it at the time of the engagement, it 
 will constitute no defence for the former. 
 Thus, if a man who already has a wife living 
 makes a promise of marriage to another 
 woman who is ignorant of the former mar- 
 riage, he will be liable in damages for a 
 breach of his promise, although a perform- 
 ance is impossible; 2 C. & P. 553 ; 7 C. B. 
 999 ; 5 Exch. 775 ; 29 Barb. 22 ; 106 Mass. 
 339. Otherwise, if the woman knew at 
 the time the engagement to marry was en- 
 tered into, that the man was married ; 39 N. 
 J. L. 133 ; 63 111. 99. Knowledge that the 
 man was married, obtained by the woman 
 subsequently to the engagement to marry, is 
 not a defence, but may go in mitigation of 
 damages; 1 Heisk. 368. 
 
 In an action for breach of promise of mar- 
 riage, the court -will not interfere with the 
 discretion of the jury as to the amount of 
 damages, unless there has been some obvious 
 error or misconception on their part, or it is 
 made apparent that they have been actuated 
 by improper motives ; 1 C. B. N. s. 660; 1 
 Y. & J. 477 ; 26 Conn. 398. And if the de- 
 fendant has undertaken to rest his defence, 
 in whole or in part, on the general bad char- 
 
PROMISEE 
 
 476 
 
 PROMISSORY NOTE 
 
 acter or the criminal conduct of the plaintiff, 
 and fails altogether in the proof, the jury may 
 take this into consideration as enhancing the 
 damages ; 6 Cow. 254 ; 27 Mo. 600. Where 
 such an action is brought by a woman, she 
 may prove, in aggravation of damages, that 
 the defendant, under color of a promise of 
 marriage, has seduced her; 106 id. 396; s. 
 C. 8 Am. Rep. 838 n.; 42 Mich. 346 ; s. 
 c. 36 Am. Rep. 442; 37 Wise. 46; 
 33 Md. 288; s. c. 3 Am. Rep. 174; L. 
 R. 1 C. P. 331 ; 8 Barb. 323; 2 Ind. 
 402; 3 Mass. 73. But see, contra, 2 
 Penn. 80, commented on in 11 id. 316 ; 
 1 R. I. 493. And misconduct, showing 
 that the plaintiff would be an unfit companion 
 in married life, may be given in evidence in 
 mitigation of damages ; 1 Abb. App. Die. 
 282. The defendant may show that his fail- 
 ure to marry the plaintiff proceeded from op- 
 position by his mother to the marriage ; 24 
 N. Y. 252 ; or that he was afflicted with an 
 incurable disease at the time of his breach of 
 the promise to marry, in mitigation of dam- 
 ages ; 51 111. 288. Evidence that the 
 general character of the plaintiff for chastity 
 previously to the engagement, was bad, is ad- 
 missible in mitigation of damages ; 71 Penn. 
 240; 4 Mo. App. 94; 2 Brad w. 236 ; so is 
 indelicate conduct (not criminal) of plaintiff 
 before the promise was made ; 7 Wend. 142. 
 Evidence of the defendant's financial standing 
 is admissible; 42 Mich. 346 ; s. c. 36 Am. 
 Rep. 442 ; so of his social position ; Schoul. 
 Husb. & W. § 49. 
 
 See 21 Alb. L. J. 327 ; Schouler, Husb. 
 & W. §§ 40-51 ; 5 So. L. Rev. N. s. 57. 
 
 PROMISEE. A person to whom a pro- 
 mise has been made. 
 
 In general, a promisee can maintain an ac- 
 tion on a promise made to him ; but when the 
 consideration moves not from the promisee, 
 but some other person, the latter, and not the 
 promisee, has a cause of action, because he is 
 the person for whose use the contract was 
 made; Latch, 272; Poph. 81; Cro. Jac. 77; 
 1 T. Raym. 271, 368 ; 4 B. & Ad. 435 ; 1 
 N. & M. 303 ; Cowp. 437 ; Dougl. 142. But 
 see Carth. 5 ; 2 Ventr. 307 ; 9 M. & W. 
 92, 96. 
 
 PROMISES. When a defendant has been 
 arrested, he is frequently induced to make 
 confessions in consequence of promises made 
 to him that if he will tell the truth he will be 
 either discharged or favored : in such a case, 
 evidence of the confession cannot be received, 
 because, being obtained by the flattery of 
 hope, it comes in so questionable a shape, 
 when it is to be considered evidence of guilt, 
 that no credit ought to be given to it ; 1 Mass. 
 144 ; 1 Leach, 299. This is the principle ; 
 but what amounts to a promise is not so easily 
 defined. See Confession. 
 
 PROMISOR. One who makes a pro- 
 mise. 
 
 The promisor is bound to fulfil his promise, 
 unless when it is contrary to law, as a promise 
 
 to steal or to commit an assault and battery ■ 
 when the fulfilment is prevented by the act of 
 God, as where one has agreed to teach another 
 drawing and he loses his sight, so that he can- 
 not teach it ; when the promisee prevents the 
 promisor from doing what he agreed todo- 
 when the promisor has been discharged from 
 his promise by the promisee ; when the pro- 
 mise has been made without a sufficient 
 consideration; and perhaps in some other 
 cases. 
 
 PROMISSORY NOTE. A written pro- 
 mise to pay a certain sum of money, at a future 
 time, unconditionally. 7 W. & S. 264; 2 
 Humphr. 143; 10 Wend, 675; 1 Ala. 263- 
 7 Mo. 42; 2 Cow. 536; 6 N. H. 364- 7 
 Vern. 22. 
 
 An unconditional written promise, signed by 
 the maker, to pay absolutely and at all events 
 a sum certain in money, either to the bearer 
 or to a person therein designated or his order. 
 Benj. Chalra. Bills etc., Art. 271. 
 
 A promissory note differs from a mere 
 acknowledgment of debt without any promise 
 to pay, as when the debtor gives his Creditor 
 an I O U. See 2 Yerg. 60 ; 15 M. & W. 23. 
 But see 2 Humphr. 143 ; '6 Ala. N. s. 373. 
 In its form it usually contains a promise to 
 pay, at a time therein expressed, a sum of 
 money to a certain person therein named or 
 to his order, for value received. It is dated 
 and signed by the maker. It is never under 
 seal ; 9 Hun. 981 ; even when made by a cor- 
 poration ; 1 6 Wend. 265 ; 8 Fed. Rep. 408. 
 But see L. R. 3 Ch. Ap. 758. No particular 
 form of words is necessary : but there must be 
 an intention to make a note ; see 15 M. & W. 
 29 ; Benj. Chalm. Bills, etc., 274. 
 
 He who makes this promise is. called the 
 maker, and he to whom it is made is the 
 payee ; 3 Kent, 46. A writing in the form 
 of a note payable to the maker's order, be- 
 comes a note by indorsement ; 22 Penn. 89. 
 
 Although a promissory note in its original 
 shape, bears no resemblance to a bill of ex- 
 change, yet when indorsed it is exactly simi- 
 lar to one ; for then it is an order by the 
 indorser of the note upqn the maker to pay 
 the indorsee. The indorser is as it were the 
 drawer ; the maker, the acceptor ; and the 
 indorsee, the payee ; 4 Burr. 669; 4 Term, 
 148 ; 3 Burr. 1224. 
 
 Most of the rules applicable to bills of ex- 
 change equally affect promissory notes. No 
 particular form is requisite to these instru- 
 ments : a promise to deliver the money, or to 
 be accountable for it, or that the payee shall 
 have it, is sufficient; Chitty, Bills, S3, 54. 
 
 There are two principal qualities essential 
 to the validity of a note : first, that it be 
 payable at all events, not dependent on any 
 contingency ; 20 Pick. 132 ; 22 id. 132 ; nor 
 payable out of any particular fund ; 3 J. J- 
 Marsh. 170, 542; 5 Ark. 441; 2 Blackf. 
 48 ; 1 Bibb, 503 ; 9 Miss. 393 ;*3 Pick. 541; 
 4 Hawks, 102; 5 How. 382. Second, it is re- 
 quired that it be for the payment of money only; 
 10 S. & R. 94 ; 47 Wise. 851 ; 27 Mich. 191 ; 
 
PROMOTERS 
 
 477 
 
 PROMOTERS 
 
 35 Me. 864; 11 Vt. 268; (though statutes 
 in some states have made notes payable in 
 merchandise negotiable) that is, in whatever 
 is legal tender at the place of payment ; 2 
 Ames, Bills, etc., 828, and not in bank-notes; 
 though it has been held differently in the state 
 of New York; 9 Johns. 120; 19 id. 144. 
 The rule on this subject is said to be more 
 strict in England than here, but to have been 
 relaxed there in 2 Q. B. Div. 194. The 
 same writer says that the tendency here is to 
 use the term money in a very wide sense ; 
 Benj. Chalm. Bills, etc., 10. 
 
 A promissory note payable to order or 
 bearer passes by indorsement, and, although 
 a chose in action, the holder may bring suit 
 on it in his own name. Although a simple 
 contract, a, sufficient consideration is implied 
 from the nature of the instrument. See 5 
 Comyns, Dig. 133, n., 151, 472 ; Smith, Merc. 
 Law, b. 3, c. 1 ; 4 B. & C. 235 ; 1 C. & M. 
 16. It has been urged that upon principle, 
 negotiable instruments are contracts binding 
 by their own force, and therefore not requir- 
 ing any consideration ; Langd. Contr. § 49. 
 
 A stipulation in an instrument, otherwise in 
 the form of- a promissory note, for the pay- 
 ment of an attorney's fee for the collection of 
 the note in case of dishonor renders the instru- 
 ment non-negotiable ; 84 Penn. 470 ; 71 Mo. 
 622 ; contra, 33 111. 372 ; 32 Iowa, 184 ; 35 
 Ind. 103; 18 Kan. 433; 11 Bush, 180; per 
 Miller, J., in U. S. C. C. ; referred to in an 
 article in 14 Cent. L. J. 88 ; see id. 266 ; 1 
 Dan. Neg. Instr. 54. 
 
 As to promises to pay a debt in specific 
 articles ; see 21 Am. Dec. 422. 
 
 See Bill OF Exchange ; Indorsement ; 
 Notice ; Dan. Neg. Instr. ; Ames, Bills & 
 Notes; Byles, Bills. 
 
 PROMOTERS. Those who in popular 
 and penal actions, prosecute offenders in their 
 own name and the king's. Persons or cor- 
 porations at whose instance private bills are 
 introduced into, and passed through parlia- 
 ment. Especially those who press forward 
 bills for the taking of land for railways and 
 other public purposes ; who are then called 
 promoters of the undertaking. Persons who 
 assist in establishing joint-stock companies. 
 Mozl. & W. 
 
 In this country the use of the term is in the 
 seftse last given ; but it is not as much used 
 here as in England. 
 
 Aa to the liability of a corporation in re- 
 gard to any contract made by its promoters 
 on its behalf (supposing the contract to be 
 one which the corporation, after its organiza- 
 tion, could legally have made), these rules 
 have been laid down by a late writer in 1 6 
 Am. L. Rev. 281 : — 
 
 I. As long as the contract remains execu- 
 tory on both sides, the party who contracted 
 with the promoter cannot enforce the contract 
 against the corporation, unless tho corporation 
 has ratified the same ; and the corporation 
 cannot enforce the contract against the other 
 contracting party without carrying out all the 
 
 engagements entered into with the other con- 
 tracting party at the time of making the con- 
 tract. 
 
 II. When a contract made by a promoter 
 on behalf of a future corporation has been 
 ratified and performed by the latter, it may 
 force the party who contracted with the pro- 
 moter to perform on his side. 
 
 III. When the contract has been executed 
 by the other contracting party, the corpora^ 
 tion should be held to perform on its side, if 
 (1) it has ratified the contract, or (2) volun- 
 tarily accepted the benefit arising from the 
 performance of the contract in such a manner 
 as to estop the corporation from denj-ing that 
 it has ratified the contract. Button the other 
 band if the benefit from the contract came to 
 the corporation without any voluntary action 
 on its part, or on the part of those whose acts 
 in regard to the subject-matter of the contract 
 are to be regarded as the acts of the corpora- 
 tion, then there is no principle in law or in 
 equity on which it can be compelled to carry 
 out engagements entered into without its au- 
 thority, and which it has never even impliedly 
 ratified. 
 
 Ratification may be express, or may be im- 
 plied from the voluntary acceptance of the 
 benefit of the contract, whereby an estoppel 
 is worked ; see 12 N. H. 205 ; 15 Barb. 323. 
 See, also, 7 Ch. Div. 368 ; L. R. 2 C. P. 
 1 74. A corporation cannot enforce a subscrip- 
 tion to shares made before its formation on the 
 faith of certain promises of its promoters, 
 without fulfilling the promises ; 10 N. Y. 550. 
 
 Promoters are personally liable on contracts 
 made by them for the intended company when 
 the latter proves abortive ; L. R. 2 C. P. 
 1 74 ; and also for subscriptions paid in to an 
 abortive company, and that without any de- 
 duction for expenses incurred ; 3 B. & C. 
 814. 
 
 A promoter is not liable ex contractu to a 
 person who has been induced by his fraud to 
 take shares in a company, but he may be 
 liable ex delicto ; 2 E. & B. 476. A bill in 
 equity lies to recover back money which a 
 person has been induced, through fraud, to 
 invest in a bubble; 2 P. Wms. 153. As 
 against a person acting as promoter, the cor- 
 poration is entitled to the full benefit of all 
 acts done and contracts made by him while 
 acting in that capacity ; and the promoter, as 
 between himself and the corporation, is en- 
 titled to no secret profits ; he may not pur- 
 chase property for the corporation, and then 
 sell the same to the corporation at an advance ; 
 61 Penn. 202 ; 5 Ch. Div. 73, 395 ; 6 id. 
 371. Where one has already purchased a 
 certain property at a good bargain, it is no 
 fraud to organize a company and sell the 
 property to it at an advance ; Thomp. Liab. 
 of Off. 222. See 1 Ch. Div. 182 ; 4 Hun. 
 192. But if at the time of making the sale 
 he occupies towards the corporation a position 
 of trust, as promoter or otherwise, it would 
 seem that he should not be allowed to sell at 
 an exorbitant price ; 16 Am. L. Rev. 289 ; 
 
PROMULGATION 
 
 478 
 
 PROPERTY 
 
 but see 64 Penn. 43 ; and he should faithfully 
 state to the company all material facts relating 
 to the property which would influence it in 
 deciding as to the purchase ; Thomp. Liab. 
 of Off. 219 ; L. R. 5 Eq. 464. See 2 Lind. 
 Part. 580. See also, 3 App. Gas. 1218 (S. 
 0. 4 Cent. L. J. 510) ; affirming 5 Ch. Div. 
 103. 
 
 ■The subject is fully treated by Judge 
 Thompson in his work above cited, and by 
 Mr. Taylor in 16 Am. L. Rev. 281. 
 
 PROMULGATION. The order given 
 to cause a law to be executed, and to make 
 it public : it differs from publication. 1 Bla. 
 Com. 45 ; Stat. 6 Hen. VI. c. 4. 
 
 With regard to trade, unless previous notice 
 can be brought home to the party charged 
 with violating their provisions, laws are to 
 be considered as beginning to operate in the 
 respective collection districts only from the 
 time they are received from the proper de- 
 partment by the collector; Paine, 32. See 
 id. 23. 
 
 The promulgation of laws is an executive 
 function. The mode may be presented by 
 the legislature. It is the extrinsic act which 
 gives a law, perfect in itself, executory force. 
 Unless the law prescribes that it shall be ex- 
 ecutory from its passage, or from a certain 
 date, it is presumed to be executory only 
 from its passage ; 1 7 La. An. 390. Formerly 
 promulgation meant introducing a law to the 
 senate ; Aust. Jur. Lect. 28. 
 
 PROMUTUUM (Lat.). In CivU Law. 
 A quasi contract, by which he who receives a 
 certain sum of money, or a certain quantity 
 of fungible things, which have been paid to 
 him through mistake, contracts towards the 
 payer the obligation of returning him as much. 
 Pothier, de I'Usure, pt. 3, s. 1, a. 1. 
 
 This contract is called promutuumy because it 
 has much resemblance to that of mutwum. This 
 resemblance consists in this : firtt, that in both a 
 sum of money or some fungible things are re- 
 quired ; second, that in both there must be a 
 transfer of the property in the thing ; third, that 
 in both there must be returned the same amount 
 or quantity of the thing received. But, though 
 there is this general resemblance between the 
 two, the mutuum differs essentially from the pro- 
 mutuum. The former is the actual contract of 
 the parties, made expressly, but the latter is a 
 quasi contract, which is the effect of an error or 
 mistake. 1 Bouvier, Inst. n. 1125, 1126. 
 
 PRONEPOS (Lat.). Great-grandson. 
 
 PRONEPTIS (Lat.). A niece's daugh- 
 ter. A great-granddaughter. Ainsworth, 
 Diet. 
 
 PRONURUS (Lat. ) . The wife of a greal^ 
 grandson. 
 
 PROOF. In Practice. The conviction 
 or persuasion of the mind of a judge or jury, 
 by the exhibition of evidence, of the reality 
 of a fact alleged. Thus, to prove is to deter- 
 mine or persuade that a thing does or does 
 not exist ; 8 TouUier, n. 2 ; Ayliffe, Parerg. 
 442 ; 2 PhiU. Ev. 44, n. a. Proof is the 
 perfection of evidence ; for without evidence 
 
 there is no proof, although there may be evi- 
 dence which does not amount to prod'; for 
 example, if a man is found murdered at a spot 
 where another has been seen walking but a 
 short time before, this fact will be evidence 
 to show that the latter was the murderer but 
 standing alone, will be very far from moof 
 of it. •' 
 
 Ayliffe Ae^ntiS judicial proof to be a clear 
 and evident declaration or demonstration of 
 a matter which was before doubtful, conveyed 
 in a judicial manner by fit and proper argu- 
 ments, and likewise by all other legal 
 methods : first, by proper arguments, such as 
 conjectures, presumptions, indicia, and other 
 adminicular ways and means; secondly, by 
 legal methods, or methods according to law, 
 such as witnesses, public instruments, and 
 the like. Ayliffe, Parerg. 442 ; Aso & M. 
 Inst. b. 3, t. 7. 
 
 PROPER. That which is essential, suit 
 able, adapted, and correct. 
 
 Congress is authorized, by art. 1, s. 8, of 
 the constitution of the United States, "to 
 make all laws which shall be necessary and 
 proper for carrying into execution the forego- 
 ing powers, and all other powers vested by 
 this constitution of the United States, in any 
 department or officer thereof." 
 
 PROPERTY. The right and interest 
 which a man has in lands and chattels to the 
 exclusion of others. 6 Binn. 98; 4 Pet. 
 511; 17 Johns. 283; 11 East, 290,518; 14 
 id. 370. 
 
 The term "property" embraces every 
 species of valuable right and interest, includ- 
 ing real and personal property, easements, 
 franchises, and hereditaments ; 19 Am. L. 
 Reg. N. s. 376 (N. Y. Snp. Ct.). 
 
 All things are not the subject of property : 
 the sea, the air, and the like cannot be appro- 
 priated ; every one may enjoy them, but he 
 has no exclusive right in them. When thingf 
 are fully our own, or when all others are ex- 
 cluded from meddling with them or from in- 
 terfering about them, it is plain that no person 
 besides the proprietor, who has this exclusivjr 
 right, can have any claim either to use them, 
 or to hinder him from disposing of them as he 
 pleases : so that property, considered as an 
 exclusive right to things, contains not only a 
 right to use those thmgs, but a right to dis- 
 pose of them, either by exchanging them for 
 other things, or by giving them away to any 
 other person without any consideration, or 
 even throwing them away. Rutherforth, 
 Inst. 20; Domat, liv. pril. tit. 3; Pothier, 
 des Choses; 18 Viner, Abr. 63; Comyns, 
 Dig. Biens. See, also, 2 B. & C. 281 ; Hi- 
 396 ; 8 Dowl. & R. 394; 1 C. & M. 39; 4 
 Call, 472; 18 Ves. 193 ; 6 Bingh. 630. 
 
 Property is said to be real and personal pro- 
 perty. See those titles. 
 
 It is also said to be, when it relates to goods 
 and chattels, absolute or qualified. Absolute 
 property is that which is our own without any 
 qualification whatever : as, when a man is the 
 
PROPERTY 
 
 479 
 
 PROPRIETARY 
 
 owner of a watch, a book, or other inanimate 
 thing, or of a horse, a sheep, or other animal 
 which never had its natural liberty in a wild 
 state. 
 
 Qualified property consists in the right 
 which men have over wild animals which they 
 have reduced to their own possession, and 
 which are kept subject to their power : as, a 
 deer, a buffalo, and the like, which are his 
 own while he has possession of them, but as 
 soon as his possession is lost his property is 
 gone, unless the animals go animo revertendi. 
 2 Bla. Com. 396 ; 3 Binn. 546. 
 
 But property in personal goods may be ab- 
 solute or qualified without any relation to the 
 nature of the subject-matter, but simply be- 
 cause more persons than one have an interest 
 in it, or because the right of property is sep- 
 arated from the possession. A bailee of goods, 
 though not the owner, has a qualified property 
 in them ; while the owner has the absolute 
 property. See Bailee; Bailment. 
 
 Personal property is further divided into 
 property in possession, and property or choses 
 in action. See Chose in Action. 
 
 Property is again divided into corporeal and 
 incorporeal. The former comprehends such 
 property as is perceptible to the senses, as 
 lands, houses, goods, merchandise, and the 
 like; the latter consists in legal rights, as 
 choses in action, easements, and the like. 
 
 Property is lost by the act of man hy— first, 
 alienation ; but in order to do this the owner 
 must have a legal capacity to make a contract ; 
 second, by the voluntary abaftdonraent of the 
 thing ; but unless the abandonment be purely 
 voluntary the title to t^e property is not lost : 
 as, if things be thrown into the sea to save 
 the ship, the right is not lost ; Pothier, n. 
 270 ; 3 Toullier, n. 346. But even a volun- 
 tary abandonment does not deprive the former 
 owner from taking possession of the thing 
 abandoned at any time before another takes 
 possession of it. 
 
 It is lost hy operation of law — first, by the 
 forced sale, under a lawful process, of the pro- 
 perty of a debtor to satisfy a judgment, sen- 
 tence, or decree rendered against him, to com- 
 pel him to fulfil his obligations ; second, by 
 confiscation, or sentence of a criminal court ; 
 llird, by prescription ; fourth, by civil death ; 
 fifth, by capture of a public enemy. It is 
 lost by the act of God, as in the case of the 
 death of slaves or animals, or in the total de- 
 struction of a thing : for example, if a house 
 be swallowed up by an opening in the earth 
 daring an earthquake. 
 
 It is proper to observe that, in some cases, 
 the moment that the owner loses his possession 
 he also loses his property or right in the thing : 
 animals fera naturce, as mentioned above, be- 
 long to the owner only while he retains the 
 possession of them. But, in general, the loss 
 of possession does not impair the right of pro- 
 perty, for the owner may recover it within a 
 certain time allowed by law. See, generally, 
 Bouvier, Inst. Index. 
 
 PROPINQUITY (Lat.). Kindred; 
 parentage. See Affinity ; Consanguin- 
 ity; Next of Kin. 
 
 PROPIOR SOBRINA, PROPIOR 
 SOBRINO (hat.). The son or daughter of 
 a great^uncle or great-aunt on the father's or 
 mother's side. Calvinus, Lex. 
 
 PROPIOS; PROPRIOS. In Spanish 
 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, etc., or to be used in any 
 other way, under the direction of the munici- 
 pality, for the advancement of the revenues 
 or the prosperity of the place. 12 Pet. 442, 
 note. 
 
 PROPONENT. In Ecclesiastical Law. 
 One who propounds a thing: as, " the party 
 proponent doth allege and propound." 6 
 Eccl. 356, n. 
 
 PROPOSAL. An offer. A formal offer 
 to perform some undertaking, stating the time 
 and manner of performance and price de- 
 manded, or one or more of these particulars, 
 either directly or by implied or direct refer- 
 ence to some announcement requesting such 
 an offer. See 35 Ala. N. s. 33. A proposal 
 of this character is not to be considered 
 as subject to different rules from any other 
 offer. Pierce, Am. Railw. Law, 364. See 
 Offer. 
 
 PROPOSITUS (Lat.). The person pro- 
 posed. In making genealogical tables, the 
 person whose relations it is desired to find out 
 is called the propositus. 
 
 PROPOUND. To offer ; to propose : as, 
 the onus probandi in every case lies upon the 
 party who propounds a will. 1 Curt. Eccl. 
 637; 6 Eccl. 417. 
 
 PROPRES. In 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, as- 
 cending or descending, or from a collateral 
 line, whether the same have come by opera- 
 tion of law or by devise. Propres is used in 
 opposition to acquits. Pothier, Des Propres ; 
 2 Burge, Confl. of Law, 61. 
 
 PROPRIA PERSONA (Lat. 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 at- 
 torney they admit the jurisdiction, as an attor- 
 ney is an officer of the court, and he is pre- 
 sumed to plead after having obtained leave, 
 which admits the jurisdiction. Lawes, Plead. 
 91. 
 
 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 
 
PROPRIETATE PROBANDA 480 
 
 PROSPECTUS 
 
 of Pennsylvania, William Penn was called 
 the proprietary. 
 
 The domain which "William Penn and his 
 family had in the state was, during the revo- 
 lutionary war, divested by the act of Novem- 
 ber 27, 1779, from that4"amily, and vested in 
 the commonwealth for the sum which the lat- 
 ter paid to them of one hundred and thirty 
 thousand pounds sterling. 
 
 PROPRIETATE PROBANDA. See 
 De Pkoprietate Pkobanda. 
 
 PROPRIETOR. The owner. 
 
 PROPRIO VIGORE (Lat.)- By its own 
 force or vigor : an expression frequently used 
 in construction. A phrase is said to have a 
 certain meaning propria vigore. 
 
 PROPTER AFFECTUM (Lat.). For 
 or on account of some afiection or prejudice. 
 A juryman may be challenged propter affec- 
 tum : as, because he is related to the party, 
 has eaten at his expense, and the like. See 
 Challengk. 
 
 PROPTER DEFECTUM (Lat.). On 
 account of or for some defect. This phrase 
 is frequently used in relation to challenges. 
 A juryman may be challenged propter defec- 
 tum : as, that he is a minor, an alien, and the 
 like. See Challenge. 
 
 PROPTER DELICTUM (Lat.). For or 
 on account of crime. A juror maybe chal- 
 lenged propter delictum when he has been 
 convicted of an infamous crime. See Chal- 
 lenge. 
 
 PROROGATED JURISDICTION. In 
 Scotch Law. That jurisdiction which by 
 the consent of the parties, is conferred upon 
 a judge who, without such consent, would be 
 incompetent. Erksine, Inst. 1. 2. 15. 
 
 At common law, when a party is entitled to 
 some privilege or exemption from jurisdiction 
 he may waive it, and then the jurisdiction is 
 complete ; but the consent cannot give juris- 
 diction. 
 
 PROROGATION (Lat.). Putting off 
 to another time. It is generally applied to 
 the English parliament, and means the con- 
 tinuance of it from one day to another : it 
 differs from adjournment, which is a continu- 
 ance of it from one day to another in the same 
 session. 1 Bla. Com. 186. 
 
 In Civil Lav?. The giving time to do a 
 thing beyond the term prefixed. Dig. 2. 14. 
 27. 1. See Prolongation. 
 
 PROSCRIBED (Lat. proscribo, to write 
 before). In Civil Law. Among the Romans, 
 a man was said to be proscribed when a re- 
 ward was offered for his head ; but the term 
 was more usually applied to those who were 
 sentenced to some punishment which carried 
 with it the consequeoces of civil death. Code, 
 9. 49. 
 
 PRpSECUTION (Lat. prosequor, to fol- 
 low after). In Criminal Law. The means 
 adopted to bring a supposed offender to jus- 
 tice and punishment by due course of law. 
 
 Prosecutions are carried on in the name of 
 the government, and have for their principal 
 object the security and happiness of the i)eo- 
 ple in general. Hawk. PI. Cr. b. 2, c. 25 s 
 3 ; Bacon, Abr. Indictment (A3). ' ' 
 
 In England, the modes most usually em- 
 ployed to carry them on are— by indictment' 
 1 Chitty, Cr. Law, 132; presentment of a 
 grand jury; id. 133 ; coroner's inquest; id. 
 134; and by an information. In this country 
 the modes are — by indictment, by present- 
 ment, by information, and by complaint. 
 
 PROSECUTOR. In Practice. He who 
 prosecutes another for a crime in the name 
 of the government. 
 
 The public prosecutor is an officer appointed 
 by the government to prosecute all offences : 
 he is the attorney-general or his deputy. 
 
 A private prosecutor is one who prefers an 
 accusation against a party whom he suspects 
 to be guilty. 
 
 Every man may become a prosecutor ; but 
 no man is bound, except in some few of the 
 more enormous offences, as treason, to be one ; 
 but if the prosecutor should compound a 
 felony he will be guilty of a crime. The 
 prosecutor has an inducement to prosecute, 
 because he cannot, in many cases, have any 
 civil remedy until he has done his duty to 
 society by an endeavor to bring the offender 
 to justice. If a prosecutor act from proper 
 motives, he will not be responsible to the 
 party in damages though he was mistaken in 
 his suspicions ; but if, from a motive of re- 
 venge, he institute a criminal prosecution 
 without any reasonable foundation, he may 
 be punished by being mulcted in damages, in 
 an action for a malicious prosecution. 
 
 In Pennsylvania, a defendant is not bound 
 to plead to an indictment, where there is a 
 private prosecutor, until his name shall have 
 been indorsed on the indictment as such, and 
 on acquittal of the defendant, in all cases ex- 
 cept where the charge is for a felony, the 
 jury may direct that he shall pay the costs. 
 See 1 Chitty, Cr. Law, 1-10; 1 Phill. Ev.; 
 2 Va. Cas. 3, 20 ; 1 Dall. 5 ; 2 Bibb. 210; 
 6 Call, 245 ; Informer. 
 
 PROSOCER (Lat.). A father-in-law's 
 father; grandfather of wife. Vicat. Voc. 
 Jur. 
 
 PROSOCERUS (Lat.). A wife's grand- 
 mother. 
 
 PROSPECTIVE (Lat. prnspicio, to look 
 forward). That which is appfioable to the 
 future: it ia used in opposition to' retrospec- 
 tive. To be just, a law ought always to he 
 prospective. 1 Bouvier, Inst. n. 116. 
 
 PROSPECTUS. A prospectus of an in- 
 tended company ought not to omit actual and 
 material facts, or to conceal facts material to 
 be known, the misrepresentation or conceal- 
 ment of which may improperly influence tue 
 mind of the reader; for if he is thereby de- 
 ceived into becoming an allottee of shares ana 
 suffers loss he may proceed against those wM 
 have misled him. The purpose of a prospec- 
 
PROSTITUTION 
 
 481 PROTEST, PAYMENT UNDER 
 
 tus is only to invite persons to become allot- 
 tees of shares ; when it has performed this 
 office it is exhausted; L. R. 6 H. L. 377. 
 
 A prospectus is admissible in evidence in 
 an action at law by a company against its pro- 
 moters for secret profits ; 61 Penn. 202. See 
 Thomp. liab. of Off. 309. 
 
 PROSTITUTION. The common lewd- 
 ness of a woman for gain. The act of per- 
 mitting a common and indiscriminate sexual 
 intercourse for hire ; 12 Mete. 97. 
 
 In all well-regulated communities this has been 
 considered a heinous ofience, for which the woman 
 may be punished ; and the keeper of a house of 
 prostitution may be indicted for keeping a com- 
 mon nuisance. 
 
 So much does the law abhor this offence that 
 a landlord cannot recover for the use and occu- 
 pation of a house let for the purpose of prostitu- 
 tion ; 1 Esp. Cas. 13 ; 1 B. & P. 340, n. 
 
 In a figurative sense, it signifies the bad use 
 which a corrupt judge makes of the law, by 
 making it subservient to his interest : as, the 
 prostitution of the law, the prostitution of 
 justice. 
 
 PROTECTION. In Mercantile LaVT-. 
 The name of a document generally given by 
 notaries public to sailors and other persons 
 going abroad, in which is certified that the 
 bearer therein named is a citizen of the 
 United States. 
 
 In Governmental La-^. That benefit or 
 safety which the government aiibrds to the 
 citizens. 
 
 In English La'w. A privilege granted 
 by the king to a party to an action, by which 
 he is protected from a judgment which would 
 otherwise be rendered against him. Of these 
 protections there are several kinds. Fitzh. 
 N. B. 65. 
 
 PROTEST. In Contracts. A notarial 
 act, made for want of payment of a promis- 
 sory note, or for want of acceptance or pay- 
 ment of a bill of exchange, by a notary pub- 
 lic, in which it is declared that all parties to 
 such instruments will be held responsible to 
 the holder for all damages, exchanges, re- 
 exchange, etc. 
 
 A formal notarial certificate attesting the 
 dishonor of a bill of exchange or promissory 
 note; Benj. Chalm. Bills, etc., art. 176. 
 
 There are two kinds of protest, namely, 
 protest for non-acceptance, and protest for 
 non-payment. There is also a species of pro- 
 teat common in England, which is called pro- 
 test for better security. Protest for non- 
 acceptance or non-payment, when duly made 
 and accompanied by notice to all the parties 
 to the bill or note, has the effect of making 
 all of them responsible to the holder for the 
 amount of the bill or note, together with 
 damages, etc.; 3 Kent, 63; Chitty, Bills, 
 278; Comyns, Dig. Merchant (F 8, 9, 10) ; 
 Bacon, Abr. Merchant, etc. (M 7). Protesi 
 for better security may be made when tW 
 acceptor of a bill fails, becomes insolvent, or 
 m any other way gives the holder just rea- 
 Vol. IlHi 
 
 son to suppose it will not be paid. It seems 
 to be of doubtful utility, except that it 
 gives the drawer of a bill on a foreign 
 country an opportunity of availing himself 
 of any attachment law there in force ; 1 Ld. 
 Raym. 745. 
 
 The protest is a formal paper signed and 
 sealed by a notary wherein he certifies that 
 on the day of its date he presented the original 
 bill attached thereunto, or a copy of which is 
 above written (a description of the bill is 
 enough; 17 How. 606), to the acceptor, 
 or the original note to the maker thereof, and 
 demanded payment, or acceptance, which 
 was refused, for reasons given m the protest, 
 and that thereupon he protests against the 
 drawer and indorsers thereof, for exchange, 
 re-exchange, damages, costs, and interest. See 
 Benj. Chalm. Bills, etc., art. 176; 2 Ames, 
 Bills, etc., 863. It is usual, also, for the no- 
 tary to serve notices of the protest on all the 
 parties to the biU. The notice contains a de- 
 scription of the bill, including its date and 
 amount, the fact of demand and refusal, and 
 that the holder looks to the person notified for 
 payment. Protest of foreign bills is proof of 
 demand and refusal to pay or accept ; 2 H . 
 & J. 899; 4 id. 54; 8 Wheat. 833; 2 Pet. 
 179, 688. Protest is said to be part of the 
 constitution of a foreign bill ; and the form is 
 governed by the lex loci contractus ; 2 Hill, 
 N. Y. 227; 11 La. 14; 2 Pet. 179, 180; 
 Story, Bills, 176 (by the place where the 
 protest is made ; Benj. Chalm. Bills, etc., art. 
 180). A protest must be made by a notary 
 public or other person authorized to act as 
 such; Benj. Chalm. Bills, etc., art. 177 ; but 
 it has been held that the duties of a notary 
 cannot be performed by a clerk or deputy ; 
 102 Mass. 141. Inland bills and promissory 
 notes need not be protested ; 6 How. 23. See 
 Acceptance ; Bills or Exchange. 
 
 In Legislation. A declaration made by 
 one or more members of a legislative body 
 that they do not agree with some act or reso- 
 lution of the body : it is usual to add the rea- 
 sons which the protestants have for such a 
 dissent. 
 
 In Maritime Law. A writing, attested 
 by a justice of the peace, a notary public, or 
 a consul, made and verified by the master of 
 a vessel, stating the severity of a voyage by 
 which a ship has suffered, and showing that it 
 was not owing to the neglect or misconduct of 
 the master. See Marsh. Ins. 715, 716 ; 1 
 Wash. C. C. 145, 238, 408, n.; 1 Pet. C. C. 
 119 ; 1 Dall. 6, 10, 317 ; 2 id. 195 ; 3 W. & 
 S. 144. 
 
 The protest is not, in general, evidence for 
 the master of the vessel or his owners in the 
 English or American courts ; yet it is often 
 proper evidence against them ; Abbott, Shipp. 
 465, 466 ; Pland. Shipp. § 285. 
 
 PROTEST, PAYMENT UNDER. A 
 person who without the compulsion of legal pro- 
 cess, or duress of goods or of the person, yields 
 to the assertion of an invalid or unjust claim 
 by paying it, cannot by mere protest, either 
 
PEOTESTANDO 
 
 482 PEOUT PATET PEE EECOEDUM 
 
 in writing or oral, change its character from a 
 voluntary to an involuntary payment. The 
 payment overcomes and nullifies the protest ; 
 4 Wait. Act. & Def. 493. Where an illegal 
 tax is paid under protest to one having au- 
 thority to enforce its collection, it is an invol- 
 untary payment and may be recovered back ; 
 29 Iowa, 310; 21 Mich. 483 ; but see 34 id. 
 170; S. C. 22 Am. Eep. 512. 
 
 A mere apprehension of legal proceedings 
 to coUt^ct a tax is not sufficient to make the 
 payment compulsory ; there must be an im- 
 mediate power or authority to institute them ; 
 46 Md. 552. 
 
 An action will not lie to recover money 
 voluntarily paid to redeem land sold upon a 
 void tax judgment, when the party making 
 the payment has at the time full knowledge 
 of the character of the sale and all the facts 
 affecting its validity ; 26 Minn. 543. 
 
 The payment of illegal fees cannot generally 
 be considered as voluntary, so as to preclude 
 the plaintiff from recovering them back ; 2 
 B. & C. 729 ; 2 B. & A. 562. Wliere money 
 is paid under an illegal demand, colore officii, 
 the pavment can never be voluntary ; 8 Exch. 
 625. 
 
 Where a railway company exacted from a 
 carrier more than they charged to other car- 
 riers in breach of the acts of parliament, it 
 was held that sums thus exacted could be re- 
 covered back; 7 M. & G. 253. Where a 
 man pays more than he is bound to do by 
 law for the performance of a duty which the 
 law says is owed to him for nothing, or for 
 less than he has paid, he is entitled to recover 
 back the excess ; L. E. 4 H. L. C. 249. 
 
 The object of the protest is to take from 
 the payment its voluntary character ; it serves 
 as evidence that the payment was not volun- 
 tary, and in order to be efficacious, there must 
 be actual coercion, duress or fraud, presently 
 existing, or the payment will be voluntary in 
 spite of the protest; 59 N. Y. 603; 115 
 Mass. 367. Whether actual protest, in case 
 of the payment of money illegally demanded 
 by a public officer is a condition precedent to 
 a recovery by the party paying the money is 
 not clearly settled; 4 Wait. Act. & Def. 
 495. Where the person demanding the money 
 has notice of the illegality of the demand, a 
 protest is not necessary, but otherwise it is 
 necessary ; 49 Cal. 624. 
 
 FROTESTANDO. See Protestation. 
 
 PROTESTATION. In Pleading. The 
 
 indirect affirmation or denial, by means of 
 the word protesting (in the Latin form of 
 pleadings, prolestando), of the truth of some 
 matter which cannot with propriety or safety 
 be positively affirmed, denied, or entirely 
 passed over. See 3 Bla. Com. 311. 
 
 The exclusion of a conclusion. Co. Litt. 
 124. 
 
 Its object was to secure to the party making 
 it the benefit of a positive affirmation or de- 
 nial in case of success in the action, so far as 
 to prevent the conclusion that the fact was 
 
 admitted to be true as stated by the opposite 
 party, and at the same time to avoid the ob- 
 jection of duplicity to which a direct affirma- 
 tion or denial would expose the pleading- lo 
 Johns. 96; 2 Saund. 103; Comym, Di, 
 Pleader (N). Matter which is the ground of 
 the suit upon which issue could be taken could 
 not be protested ; Plowd. 276; 2 Johns. 227 
 But see 2 Wms. Saund. 103, n. Protesta- 
 tions are no longer allowed ; 3 Bla. Com. 312 ■ 
 and were generally an unnecessary form' 3 
 Lev. 125. ' 
 
 The common form of making protestations 
 was as follows : "because protesting that," 
 etc., excluding such matters of the adver- 
 sary's pleading as are intended to be excluded 
 in the protestando, if it be matter of fact- 
 or, if it be against the legal sufficiency of his 
 pleading, "because protesting that the plea 
 by him above pleaded in bar" (or by vray of 
 reply, or rejoinder, etc., as the case might be) 
 " is wholly insufficient in law." See gener- 
 ally, 1 Chitty,Pl. 534 ; Comyns, Vie. Pleader 
 (N); Steph. PL 235. 
 
 In Practice. An asseveration made by 
 taking God to witness. A protestation is a 
 form of asseveration which approaches, very 
 nearly to an oath. Wolffius, Inst. § 376, 
 
 PROTHONOTARY. The title given to 
 an officer who officiates as principal clerk of 
 some courts. Viner, Abr. 
 
 In the ecclesiastical law, the name of pro- 
 thonotary is given to an officer of the court 
 of Eome. He is so called because he is the 
 _first notary, — the Greek word rtputoj signif)-- 
 ing primus, or first. These notaries have 
 pre-eminence over the other notaries, and are 
 put in the rank of prelates. There are twelve 
 of them. Dalloz, Diet, de Jur. 
 
 PROTOCOL. A record or register. 
 Among the Eoinans, protocollum was a writ- 
 ing at the head of the first page of the paper 
 used by the notaries or tabellions. Nov. 44. 
 
 In France the minutes of notarial acts were 
 formerly transcr'ibed on registers, which were 
 called protocols. Toullier, Dr. Civ. Fr. liv. 
 3, t. 3, c. 6, s. 1, n. 413. 
 
 By the German law it signifies the minutes 
 of any transaction. Encyc. Amer. Protocol, 
 In the latter sense the word has of late been 
 received into international law. Id. 
 
 PROTXTTOR (Lat.). In CivU Law. 
 He who, not being the tutor of a p«pil or 
 minor, has administered his property or ^- 
 fairs as if he had fceen, whether he thought 
 himself legally invested with the authority of 
 a tutor or not. 
 
 He who marries a woman who is ^^^'^^ 
 comes, by the marriage, a protutor. The 
 protutor is equally responsible as the tutor. 
 
 PROUT PATET PER EECOKDUM 
 (Lat.). As appears by the record. Hus 
 phrase is frequently used in pleading; as, 
 for example, in debt on a judgment or other 
 matter of record, unless when it is stated as 
 an inducement, it is requisite, after showing 
 the matter of record, to refer to it by toe 
 
PROVER 
 
 483 
 
 PROVOST 
 
 prout patet per recordum. 1 Chitty, PI. *356 ; 
 ,10 Me. 127. 
 
 PROVER. In Old English Law. One 
 who undertakes to prove a crime against an- 
 other. 28 Edw. I. ; 5 Hen. IV. One who, 
 being indicted and arraigned for treason or 
 felony, confesses before plea pleaded, and ac- 
 cuses his accomplices to obtain pardon ; state's 
 evidence. 4 Bla. Com. 330*. To prove. 
 Law Fr. & Lat. Diet. ; Britton, c. 22. 
 
 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 Bruns- 
 wick. It is sometimes used figuratively to 
 signify power or authority : as, it is the pro- 
 vince of the court to judge of the law, that 
 of the jury to decide on the facts. 
 
 PROVISION. In Common Law. The 
 
 property which a drawer of a bill of exchange 
 places in the hands of a drawee : as, for ex- 
 ample, by remittances, or when the drawee 
 is indebted to the drawer when the bill be- 
 comes due, provision is said to have been 
 made. Acceptance always presumes a, pro- 
 vision. See Code de Comm. art. 115-117. 
 
 In French Law. An allowance granted 
 by a judge to a party for his support, — which 
 is to be paid before there is a definite judg- 
 ment. In a civil case, for example, it is an 
 allowance made to a wife who is separated 
 from her husband. Dalloz, Diet. 
 
 PROVISIONAL SEIZURE. In 
 Louisiana. A term which signifies nearly 
 the same as attachment of property. 
 
 It is regulated by the Code of Practice as 
 follows, namely : — 
 
 The plaintiff may, in certain cases, here- 
 after provided, obtain the provisional seizure 
 of the property which he holds in pledge, or 
 on which he has a privilege, in order to secure 
 a payment of his claim. La. Code, art. 284. 
 
 Provisional seizure may be ordered in the 
 following cases : ^rst, in executory proceed- 
 ings, when the plaintiff sues on a title im- 
 porting confession of judgment ; second, 
 ■ when a lessor prays for the seizure of furni- 
 ture or property used in the house, or attached 
 to the real estate which he has leased ; third, 
 when a seaman, or other person, employed on 
 board of a ship or water craft, navigating 
 within the state, or person 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 ; 
 fourth, 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. La. Code, 
 art. 285. See 6 Mart. La. N. 8. 168 ; 7 id. 
 153; 8 id. 320: 1 Mart. La. 168; 12 id. 
 32. 
 
 PROVISIONS. Food for man ; victuals. 
 
 As good provisions contribute so much to 
 the health and comfort of man, the law re- 
 quires that they shall be wholesome : he who 
 sells unwholesome provisions may, therefore, 
 be punished for a misdemeanor. 2 East, PI. 
 Cr. 822 ; 3 Manle & S. 10 ; 4 id. 214 ; 4 
 Camp. 10. 
 
 And in the sale of provisions the rule is 
 that the seller impliedly warrants that they 
 are wholesome. 3 Bla. Com. 166. 
 
 PROVISO. The name of a clause in- 
 serted 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. 
 
 It always implies a condition, unless subse- 
 quent words cliange it to a covenant ; but wlien 
 a proviso contains the mutual words of the par- 
 ties to a deed, it amounts to a covenant ; 2 Co. 
 72 ; Cro. Eliz. 242 ; Moore, 707. 
 
 A proviso differs from an exception ; 1 B; & 
 Aid. 99. An exception exempts, absolutely, from 
 the operation of an engagement or an enactment; 
 a proviso defeats their operation, condUiondlly. 
 An exception takes out of an engagement or en- 
 actment something which would otherwise be 
 part of the subject-matter of it ; a proviso avoids 
 them by way of defeasance or excuse ; 8 Am. 
 Jur. 242 ; Piowd. 361 ; 1 Saund. 234 a, note ; 
 Lilly, Keg., and the cases there cited. See, gen- 
 erally. Am. Jur. no. 16, art. 1 ; Bacon, Abr. 
 Conditions (A); Comyns, Dig. Condition (A 1), 
 (A 2), Dwarris, Stat. 660. 
 
 PROVISOR. He that hath the care of 
 providing things necessary; but more espe- 
 cially one who sued to the court of Rome for 
 a provision. Jacobs ; 25 Edw. III. One 
 nominated by the pope to a benefice before it 
 became void, in prejudice of right of true pa- 
 tron. 4 Bla. Com. 111*. 
 
 PROVOCATION (Lat. provoco, to call 
 out). The act of inciting another to do some- 
 thing. 
 
 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 pur- 
 pose of justifying or excusing an intended 
 murder, and the party provoked is killed, it 
 is no justification ; 2 Gilb. Ev. by Loffl, 753. 
 
 The unjust provocation by a wife of her 
 husband, in consequence of which she suffers 
 from his ill usage, will bar her divorce on the 
 ground of the husband's cruelty ; her remedy 
 m such cases is to change her manners ; 2 
 Lee, 172; 1 Hagg. Cons. 155. SeeCEUELTY; 
 Persuade ; 1 Russ. Cr. 434, 486 ; 1 East, 
 PI. Cr. 232-241. 
 
 PROVOST. A title given to the chief of 
 some corporations or societies. In France, 
 this title was formerly given to some presiding 
 judges. The word is derived from the Latin 
 prospositus. 
 
PROXENETiE 
 
 484 
 
 PUBLIC LANDS 
 
 FROXENETiE (Lat.)- In CivU Iiaw. 
 
 Among the Romans, these were persons whose 
 functions somewhat resembled those of the 
 brokers of modem commercial nations. Dig. 
 50. 14. 3 ; Domat, 1. 1, t. 17, § 1, art. 1. 
 
 PROXIMATE CAUSE. See 23 Am. 
 Rep. 21 ; 35 id. 649. Causa Proxima. 
 
 PROXIMITY (Lat.). Kindred between 
 two persons. Dig. 88. 16. 8. 
 
 PROXY (contracted from procuracy, pro- 
 curator). A person appointed in the place 
 of another, to represent him. 
 
 The instrument by which a person is ap- 
 pointed so to act. 
 
 The right of voting at an election of an 
 incorporated company by proxy is not a 
 general right, and the party claiming it must 
 show a special authority for that purpose ; 
 Ang. & A. Corp. § 1 28 ; 76 Penn. 42. At 
 common law it was allowable only by the peers 
 of England, and that is said to be in virtue of 
 a special permission of the king; 1 Paige, 
 590. 
 
 Where there was no clause in the act of in- 
 corporation empowering the members of the 
 company to vote by proxy, but a by-law pro- 
 vided that the shareholders may so vote, it 
 was held in view of this by-law that a vote 
 given by proxy should have been received ; 5 
 Day, 329. The court did not say how they 
 would have decided had there been no such 
 by-law, but drew a clear distinction between 
 public and mbneyed corporations. In 2 
 Green, N. J. 222, it was held that it required 
 legislative sanction before any corporation 
 could make a by-law authorizing members to 
 vote by proxy. So, also, in 3 Grant, Cas. 
 209. See 2 Kent, 294 ; 6 Wend. 509. Stock- 
 holders of national banks may vote by proxy, 
 but no officer, clerk, teller, or book-keeper of 
 a bank may act as proxy ; R. S. § 5144 ; many 
 of the states have passed statutes regulating 
 the right to vote by proxy. 
 
 In Ecclesiastical Law. A judicial proc- 
 tor, or one who is appointed to manage an- 
 other man's law concerns, is called a proxy. 
 Ayliffe, Parerg. 
 
 An annual payment made by the parochial 
 clergy to the bishop, etc., on visitations. 
 Tomlins Law Diet. 
 
 In Rhode Island and Connecticut the name 
 of an election or day of voting for officers of 
 government. Webst. Diet. 
 
 PUBERTY. In Civil Law. The age 
 in boys of fourteen, and in girls of twelve 
 years. Ayliflfe, Pand. 63 ; Hall, Pract. 14 ; 
 Toullier, Dr. Civ. Fr. tom. 5, p. 100 ; Inst. 
 1. 22 ; Dig. 1. 7. 40. 1 ; Code, 5. 60. 3 ; 1 
 Bla. Com. 436. 
 
 PUBLIC. The whole body politic, or all 
 the citizens of the state. The inhabitants of 
 a particular place : as, the New York public. 
 
 This term is sometimes joined to other 
 terms, to designate those things which have 
 a relation to the public : as, a public-efficer, a 
 public road, a public passage, a public house. 
 
 A distinction viias been made between thetenn« 
 public and general: they are sometimeB nsed «• 
 synonymous. The former term is applied etrictlv 
 to that which COncems all the citizens and everv 
 member of the state ; while the latter includM 
 a lesser, though still a large, portion of the com 
 mnnity. Greenl. Ev. § 128. 
 
 When the public interests and ife rights 
 conflict with those of an individual, the latter 
 must yield. Co. Litt. 181. If, for example 
 a road is required for public convenience' 
 and in its course it passes on the ground occu- 
 pied by a house, the latter must be tom down 
 however valuable it may be to the owner! 
 In such a case both law and justice require 
 that the owner shall be fully indemnified. 
 See Eminent Domain. 
 
 PUBLIC DEBT. That which is due or 
 owing by the government. 
 
 The constitution of the United States proTides, 
 art. 6, s. 1, that "all debtscontraoted or engage^ 
 ments entered into before the adoption of this 
 constitution shall be as valid against the Uaited 
 States under this constitution as under the con- 
 federation." The fourteenth amendment pro- 
 vides that "the validity of the public debt of the 
 United States, authorized by law, including dehts 
 incurred for payment of pensions and bountiCB 
 for services in suppressing insurrection or rebel- 
 lion, shall not be questioned." 
 
 PUBLIC ENEMY. This word, nsed in 
 the singular number, designates a nation at 
 war with the United States, and includes 
 every member of such nation. Vattel, b. 3, 
 c. 5, § 70. 
 
 To make a public enemy, the government 
 of the foreign country must be at war with 
 the United States ; for a mob, how numerous 
 soever it may be, or robbers, whoever they 
 may be, are never considered as a public 
 enemy; 2 Marsh. Ins. 508; 3 Esp. 131, 
 132. 
 
 A common carrier is exempt from respon- 
 sibility whenever a loss has been occasioned 
 to the goods in his chaise by the act of a 
 public enemy ; but the burden of proof lies 
 on him to show that the loss was so occasioned; 
 3 Munf. 239 ; 4 Binn. 127 ; 2 Bail. 157. 
 See Common Carbiisb. 
 
 In the late rebellion, the Federal troops 
 were a public enemy, against whose acts a 
 common carrier within the Confederate lines 
 did not insure ; 1 Heisk. 256. 
 
 PUBLIC HOUSE. A house ke^t for the 
 entertainment of all who come lawfully and 
 pay regularly ; 3 Brewst. 344. It does not 
 include a boarding house; id.; but under a 
 statute a store house in the country is included 
 by this term ; 29 Ala. 40 ; and a barber 
 shop ; 30 id. 550 ; and a broker's office ; 31 
 W. 371. A room to which persons generally 
 are permitted to resort, to play cards, though 
 not every one has access to it, is a public gam- 
 bling-house. See many cases collected m 22 
 Alb. L. J. 24, and Abb. Die. 
 
 PUBLIC LANDS. Such lands as are 
 subject to sale or other disposition by the 
 United States, under getaeral laws; 92U.». 
 761. See 10 Nev. 260. 
 
PUBLIC MONEY 
 
 485 
 
 PUBLICATION 
 
 PUBLIC MONEY. As used in the U. 
 S. statutes, the money of the federal govern- 
 ment received from the public revenues, or 
 intrusted to its fiscal officers, wherever it may 
 be. It does not include money in the hands 
 of the marshals and other officers of the courts, 
 held to await the judgment of the court ; 12 
 Ct. 01. 281. 
 
 PUBLIC PASSAGE. A right to pass 
 over a body of water. This terra is synony- 
 mous with public highway, with this ■ differ- 
 ence : by the latter is und.erstood a right to 
 pass over the land of another ; by the former 
 IS meant the right of going over the water 
 which is on another's land. Carth. 193 ; 
 Hamm. N. P. 195. See Passage. 
 
 PUBLIC PLACE. Under a statute 
 against gaming, a steamboat carrying passen- 
 gers and freight is a public place ; 13 Ala. 
 602 ; so is an infirmary ; 19 id. 551 ; so is a 
 shoemaker's shop into which many went, but 
 a few were excluded during the gaming ; 1 7 
 id. 369. Under statutes against indecent ex- 
 posure, a public omnibus is a public place ; 3 
 C. & K. 360 ; so is a urinal in a public park ; 
 L. R. 1 C. C. 282 ; and a part of the sea 
 beach, visible from inhabited houses ; 2 
 Campb. 89. See many cases cited in 22 Alb. 
 L. J. 24, and Abb. Die. See Public 
 House. 
 
 PUBLICAN. In Civil Law. A farmer 
 of the public revenue ; one who held a lease 
 of some property from the public treasury ; 
 Dig. 39. 4. 1. 1 ; 39. 4. 12. 3 ; 39. 4. 13. 
 
 l^UBLICATION. The act by which a 
 thing is made public. 
 
 It differs from promulgation, which see ; and 
 see, also, TouUier, Dr. Civ. Pr. titre Prtliminaire, 
 n. 59, for the difference in the meaning of these 
 two words. 
 
 Publication has different meanings. When 
 applied to a law it signifies the rendering 
 public the existence of the law ; when it re- 
 lates to the opening the depositions taken in 
 a case in chancery, it means that liberty is 
 given to the officer in whose custody the de- 
 positions of witnesses in a cause are lodged, 
 either by consent of parties, or by the rules 
 or orders of the court, to show the depositions 
 openly, and to give out copies of them ; 
 Pract. Keg. 297 ; Blake, Ch. Pr. 143. And 
 when spoken of a will, it signifies that the 
 testator has done some act from which it can 
 be concluded that he intended the instrument 
 to operate as his will; 8 Atk. 161 ; 4 Me. 
 220; 3 Rawle, 15; Comyns, Dig. Estates by 
 Devise (E 2). See Comyns, Dig. Chancery 
 (Q). As to the publication of an award, see 
 6 N. H. 36. 
 
 Some of the state constitutions provide that 
 general laws shall not take effect till published. 
 The mode of publication is for the legislature 
 to determine. A general law printed in a 
 volume of private laws was held to have been 
 published; 9 Wise. 264 : but an unauthorized 
 publication is no publication; 10 Wise. 136. 
 
 In Pennsylvania, where the constitution did 
 not require publication, it was held to be ne- 
 cessary before an act could be operative ; but 
 nevertheless that publication in the legislative 
 journals was sufficient, and that neglect to 
 publish an act in the pamphlet laws did not 
 invalidate the act; 31 Penn. 432. An inaccu- 
 racy in the publication of a statute which does 
 not change its substance or legal effect, will 
 not invalidate the publication ; 14 Wise. 212 ; 
 a joint resolution of a general nature must be 
 published; 4 Kan. 261. See Cooley, Const. 
 Lim. 161. 
 
 Tn law of libel. The communication of 
 the defamatory words to a third party ; Odg. 
 Lib. & S. 150. 
 
 A libel may be published either by speaking 
 or singing, as where it is maliciously repeated 
 or sung in the presence of others, or by deliv- 
 ery, as when a libel, or a copy of it, is deliv- 
 ered to another. A libel may also be pub- 
 lished by pictures or signs, as by painting 
 another in an ignominious manner, or making 
 the sign of a gallows, or other reproachful 
 and ignominious sign, upon his door or before 
 his house. If the libel is contained in a letter 
 addressed to the plaintiff, this is not Evidence 
 of a publication sufficient to support a civil 
 action ; although it would be otherwise in an 
 indictment for libel. But if the letter, though 
 addressed to the plaintiff, was forwarded dur- 
 ing his known absence, and with intent that 
 it should be opened and read by his family, 
 clerks, or confidential agents, and it is read 
 by them, it is a sufficient publication. If it 
 was not opened by others, even though it 
 were not sealed, it is no publication ; Heard, 
 Lib. & S. §§ 264, 265. In a modern case the 
 publication relied on was a sale of a copy of 
 a newspaper to a person sent by the plaintiff 
 to procure it, who, on receiving it, carried it 
 to the plaintiff. It was held that this was a 
 sufficient publication to the agent to sustain 
 an action ; 14 Q. B. 185. A sealed letter or 
 other communication delivered to the wife of 
 the plaintiff is a publication within the mean- 
 ing of the law ; 13 C. B. 836 ; Spenc. 209. 
 If the libel be published in a netospaper, proof 
 that conies were distributed, and that the 
 clerk of the printer received payment forthem, 
 is evidence of publication; 3 Yeates, 128. 
 Publication may be by telegraph ; L. R. 9 0. 
 P. 393 ; and by postal card ; 4 L. R. Jur. 
 391. Having a letter copied by a clerk is 
 publication ; 1 Clarke (la.) 482. In crimi- 
 nal cases, the publication must be proved to 
 have been made within the county where the 
 trial is had. If it was contained in a news- 
 paper printed in another state, yet it will be 
 sufficient to prove that it was circulated, and 
 read within the county ; 3 Pick. 304. If it 
 was written in one county and sent by post 
 to a person in another, or if its publication in 
 another county be otherwise consented to, 
 this is evidence of a publication in the latter 
 county; 7 East, 65; 12 How. St. Tr. 331, 
 332. If a libel is written in one county with 
 
PUBLICIANA 
 
 486 
 
 PUISNE 
 
 intent to publish it in another, and it is ac- 
 cordingly so published, this is evidence suffi- 
 cient to charge the party in the county in 
 which it was written ; 4 B. & Aid. 95. 
 
 Uttering slanderous words in the presence 
 of the person slandered only is not a publica^ 
 tion. It is immaterial that the words were 
 spoken in a public place. The question for 
 the jury is whether they were so spoken as to 
 have been heard by third persons ; 1 3 Gray, 
 304. It must also be shown that the words 
 were spoken in the presence of some one who 
 understood them. Words in a foreign lan- 
 guage, whether spoken or written, must be 
 proved to have been understood by those who 
 heard or read them ; otherwise there is no 
 publication which is prejudicial to the plain- 
 tiff; Heard, Lib. & S. § 263. See Odg.; 
 Towns. Lib. & S. 
 
 PUBLICIANA (Lat.). In CivU Law. 
 The name of an action introduced by the 
 praetor Publicius, the object of which was to 
 recover a thing which had been lost. Inst. 4 
 6. 4 ; Dig. 6. 2. 1. 16 et 17. Its effects were 
 similar to those of our action of trover. 
 
 PUBLICITY. The doing of a thing in 
 the view of all persons who choose to be pre- 
 sent. 
 
 The law requires that courts should be open 
 to the public : there can therefore be no secret 
 tribunal, except the grand jury (y. u.) ; and 
 all judgments are required to be given in pub- 
 lic. 
 
 Publicity must be given to the acts of the 
 legislature before they can be in force ; but in 
 general their being recorded in a certain pub- 
 lic office is evidence of their publicity. 
 
 PUBLISHER. One who by himself or his 
 agent makes a thing publicly known ; one en- 
 gaged in the circulation of books, pamphlets, 
 and other papers. 
 
 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. PI. Cr. c. 73, § 10 ; 
 4 Mas. 115 ; and it is no justification to him 
 that the name of the author accompanies the 
 libel ; 10 Johns. 447 ; 2 Mood. & ^ 312. 
 
 When the publication is made by writing 
 or printing, if the matter be libellous, the 
 publisher may be indicted for a misdemeanor, 
 provided it was made by his direction or con- 
 sent ; but if he was the owner of a news- 
 paper 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. But see 107 
 Mass. 199. In either case he will be liable to 
 an action for damages sustained by the party 
 aggrieved ; 7 Johns. 260 ; 60 III. 51 ; 38 
 Mich. 10. 
 
 In order to render the publisher amena- 
 ble to the law, the publication must be ma- 
 liciously made ; but malice will be presumed 
 if the matter be libellous. 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 libellous 
 words are embodied for the purpose of prose, 
 cuting the libeller; or if it evidently appear 
 that the pubhsher did not, at the time of pnb. 
 hcation, know that the matter was libellous- 
 as, when a person reads a hbel aloud in the 
 presence of others, without beforehand know 
 ingitto be such; 9 Co. 59. See Libel" 
 Libeller ; Publication ; Odg. Lib. & s' 
 PUDICITY. Chastity; the abstaining 
 from all unlawful carnal commerce or conne(N 
 tion. A mairied woman or a widow may de- 
 fend her pudicity as a maid may her virginity 
 See Chastity ; Rape. 
 
 PUDZELD. In Old English Law. To 
 be free from the payment of money for taking 
 of wood in any forest. Co. Litt. 233 o. The 
 same as Woodgeld. 
 
 PUER (Lat. a boy ; a child). In its en- 
 larged sense this word signifies a child of 
 either sex ; though in its restrained meaning 
 it is applied to a boy only. 
 
 A case once arose which turned upon this 
 question, whether a daughter could take 
 lands under the description of piier ; and it 
 was decided by two judges agamst one that 
 she was entitled ; Dy. 337 b. In another 
 case, it was ruled the other way ; Hob. 83. 
 
 PUERILITY. In Civil Law. A con^ 
 dition which commenced at the age of seven 
 years, the end of the age of infancy, and 
 lasted till the age of puberty, — that is, in 
 females till the accomplishment of twelve 
 years, and in males till the age of fourteen 
 years fully accomplished. Ayliffe, PandA63. 
 
 The ancient Koman lawyers divided pueri- 
 lity into proximus infantiw, as it approached 
 infancy, and into proximus mbertati, as it 
 became nearer to puberty. 6 Toullier, n. 100. 
 
 PUERITIA. (Lat.). In CivU Law. Age 
 from seven to fourteen. 4 Bla. Com. 22; 
 Wharton, Diet. The age from birth to four- 
 teen years in the male, or twelve in the fe- 
 male. Calvinus, Lex. The age from birth 
 to seventeen. Vicat, Vocj. Jur. 
 
 PUPPER. 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 bond fide 
 bidders. 
 
 This is a fraud, which, at the option of the 
 purchaser, invalidates the sale. 3Madd. 112; 
 2 Kent, 423; 8 Ves. 628; 2 Bro. C. C.326; 
 11 S. & K. 89 ; 2 Hayw. 328 ; 4 H. & McH. 
 282; 2Dev. 126. See Auction; Biddeb; 
 By Bidder. 
 
 PUIS DARREIN CONTINUANCE 
 (L. Fr. since last continuance). In Plead- 
 ing. A plea which is put in after issue joined, 
 for the purpose of introducing new matter, 
 or matter which has come to the knowledM 
 of the party pleading it subsequently to such 
 joinder. See Continuance ; Plea. 
 
 PUISNE (L. Fr.). Younger; junior. As- 
 sociate. 
 
PUNCTUALITY 
 
 487 
 
 PUNISHMENT 
 
 PUNCTUALITY. As a general rule, a 
 railroad company is liable to damage accruing 
 to a passenger for a negligent failure on its 
 part to run its trains according to the com- 
 pany's time tables ; but there must be proof 
 of negligence. Neither time table nor adver- 
 tisement is a warrant of punctuality. Whart. 
 Hegl. § 662. 
 
 The publication of the time table cannot 
 amount to less than this, viz. : a representa- 
 tion that it is ordinarily practicable for the 
 company, by the use of due care and skill, to 
 run according to the table, and an engage- 
 ment on their part that they wiU do all that 
 can be done, by the use of due care and 
 skill, to accomplish that result; 52 N. H. 
 896. See also 5 E. & B. 860. The com- 
 pany is undoubtedly liable for any want of 
 punctuality which they could have avoided 
 by the use of due care and skill; nor can 
 they excuse a want of conformity to the 
 time table for any cause, the existence of 
 which was known to them, or ought to have 
 been known to them, at the time of publishing 
 the table; 52 N. H. 596. 
 
 See 8 E. L. & Eq. 362; 14 Allen, 433; 
 36 Miss. 660 ; L. R. 2 C. P. 339. In Ang. 
 Carriers, 527 a, it is said that time tables are 
 in the nature of a special contract, so that any 
 deviation from them renders the company 
 liable. But it does not appear that the cases 
 go so far. 
 
 PUNCTUATION. The division of a 
 written or printed instrument by means of 
 points, such as the comma, semicolon, and 
 the like. 
 
 In construing deeds, it is said that no re- 
 gard is to be had to punctuation, and although 
 stops are sometimes used, they are not to be 
 regarded in the construction of the instru- 
 ment; 3 Washb. R. P. 397. Punctuation is 
 not allowed to throw light on printed statutes 
 in England ; 24 Beav. 330. 
 
 Where a comma after a word in a statute, if 
 any force was attached to it, would give the 
 section containing it broader scope than it 
 would otherwise have, it was held that that 
 cu'cumstanee should not have a controlling 
 influence. Punctuation is no part of the 
 statute ; 4 Morr. Transcr. 613 ; in constru- 
 ing statutes, courts will disregard punctuation, 
 or, if need be, repunctuate, to render the 
 true meaning of the statute; 16 Ohio St. 
 432; approved in 4 Morr. Transcr. 613; 
 also 65 Penn. 311 ; 9 Gray, 385. 
 
 Punctuation is a most fallible standard by 
 which to interpret a writing ; it may be re- 
 sorted to when all other means fail, but the 
 court will first ascertain the meaning from 
 the four corners oi the instrument; 11 Pet. 
 64. 
 
 Lord St. Leonards said "In wills and deeds 
 you do not ordinarily find any stops ; but the 
 court reads them as if they were properly 
 punctuated." 2 Dr. &-War. 98. 
 
 Judges, in the later cases, have been in- 
 fluenced in construing wills by the punctua- 
 
 tion of the original document ; 2 M. & G. 
 679; 26 Beav. 81; 1 Phil. 528; 17 Beav. 
 589 ; 24 L. J. Ch. 523 ; but see 1 Mer. 651, 
 where Sir William Grant refused to resort to 
 punctuation as an aid to construction. See, 
 also, 25 Barb. 405; 16 Can. L. J. 183. 
 
 FUNISHSiIENT. In Criminal Law. 
 Some pain or penalty warranted by law, in- 
 flicted on a person for the commission of a 
 crime or misdemeanor, or for the omission of 
 the performance of an act required by law, 
 by the judgment and command of some law- 
 ful court. 
 
 The right of society to punish is derived, by 
 Beccaria, Hably, and some others, from a sup- 
 posed agreement which the persons ^ho com- 
 posed the primitive societies entered into, in 
 order to keep order, and, indeed, the very ex- 
 istence of the state. According to others, it is 
 the interest and duty of man to live in society : 
 to defend this right, society may exert tliis prin- 
 ciple, in order to support itself ; and this it may 
 do whenever the acts punSshaWe would endanger 
 the safety of the whole. And Bentham is of 
 opinion that the foundation of this right is laid 
 in public utility or necessity. Delinquents are 
 public enemies, and they must be disarmed and 
 prevented from doing evil, or society would be 
 destroyed. But, if the social compact has ever 
 existed, says Livingston, its end must have been 
 the preservation of the natural rights of the 
 members ; and therefore the effects of this fic- 
 tion are the same with those of the theory, which 
 takes abstract justice as the foundation of the 
 right to punish ; for this justice, if well con- 
 sidered, is that which assures to each member 
 of -the state the free exercise of his rights. And 
 if it should be found that utility, the last source 
 from which the right to punish is derived, is so 
 intimately united to justice that it is inseparable 
 from it in the practice of law, it will follow that 
 every system founded on one of these principles 
 must be supportedby the other. 
 
 To attain their social end, punishments 
 should be exemplary, or capable of intimi- 
 dating those who might be tempted to imitate 
 the guilty ; reformatory, or such as should 
 improve the condition of the convicts ; per- 
 sonal, or such as are at least calculated to 
 wound the feelings or affect the rights of the 
 relations of the guilty ; divisible, or capable 
 of being graduated and proportioned to the 
 offence aid the circumstances of each case ; 
 reparable, on account of the fallibility of hu- 
 man justice. 
 
 Punishments are either corporal or not cor- 
 poral. The former are — death, which is 
 usually denominated capital punishment ; im- 
 prisonment, which is either with or without 
 labor, see Pej^itentiart ; whipping, in 
 some states ; and banishment. 
 
 The punishments which are not corporal 
 are — fines ; forfeitures ; suspension or depriva- 
 tion of some political or civil right ; depriva- 
 tion of office, and being rendered incapable to 
 hold ofiice ; compulsion to remove nuisances. 
 
 The object of punishment is to reform the 
 offender, to deter him and others from com- 
 mitting like offences, and to protect society. 
 See 4 Bla. Com. 7; Rutherforth, Inst. b. 1, 
 c. 18. 
 
PUPIL 
 
 488 
 
 PURGATION 
 
 The constitution of the United States, 
 Amendments, art. 8, forbids the infliction of 
 cruel and unusual punishments. This is in- 
 tended only for congress and the federal 
 courts ; 12 S. & R. 220 ; 3 Cow. 686. 
 
 What punishment is suited to a specified 
 offence must in general be determined by the 
 legislature, and the case must be very extraor- 
 dinary in which its judgment could be brought 
 ip question. A punishment may possibly be 
 unlawful because it is so manifestly out of aU 
 proportion to the ofience as to shock the moral 
 sense with its barbarity, or because it is a 
 punishment long disused for its cruelty un- 
 til it has become unusual ; Cooley, Const. 
 296. So, for example, is the punishment of 
 depriving a native of China of his hair; 18 
 Am. L. Reg. 676. Whipping, as a punish- 
 ment for stealing mules, is not contrary to this 
 provision ; 1 New Mex. 415. In New York, 
 where a general law created a crime and 
 fixed the maximum of its punishment, a spe- 
 cial statute operating only in localities, or upon 
 particular individuals, whereby, for no per- 
 ceptible reason, the same identical crime, 
 which consists in the violation of a statute ap- 
 plicable to the whole state, can therein or in 
 those persons be punished with double the 
 severity that it can be elsewhere in the same 
 state, is within the prohibition of section five 
 of article one, of the constitution of the state 
 as to " cruel and unusual punishments." 61 
 How. Pr. 294. 
 
 PUPIL. In Civil Law. One who is in 
 
 his or her minority. See Dig. 1. 7 ; 26. 7. 1. 
 2 ; 50. 16. 239 ; Code, 6. 30. 18. One who 
 is in ward or guardianship. 
 
 PTTPILLARIS SUBSTITXJTIO (Lat.). 
 In Civil Law. The nomination of another 
 besides his son pupil to succeed, if the son 
 should not be able or inclined to accept the 
 inheritance, or should die before he came of 
 age to make a testament. 
 
 If the child survived the age of puberty, 
 though he made no testament, the substitute 
 had no right of succession. See Bell, Diet. 
 Substitution ; Dig. 28. 6. 
 
 PUPILLARITY. In Civil Law. That 
 age of a person's life which included infancy 
 and puerUity. 
 
 PUR. A corruption of the French word 
 par, by or for. It is frequently used in old 
 French law phrases : as, pur autre vie. It is 
 also used in the composition of words : as, 
 puparty; purlieu, purview. 
 
 PUR AUTRE VIE (old French, /or an- 
 other'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 an- 
 other person. 2 Bla. Com. 269 ; 10 Viner, 
 Abr. 296 ; 2 Belt, Suppl. Ves, Jr. 41. 
 
 PURCHASE. A term including every 
 mode of acquisition of estate known to the 
 law, except that by which an heir on the 
 death of his ancestor becomes substituted in 
 
 his place as owner by operation of law o 
 Washb. R. P. 401. ^ 
 
 There are six ways of acquiring a title by 
 purchase, namely, by deed; by devise- by 
 execution; by prescription ; by possession or 
 occupancy ; by escheat. In its more limited 
 sense, purchase is applied only to such acqui. 
 sitions of lands as are obtained by way of 
 bargain and sale for money or some other 
 valuable consideration ; Cruise, Dig. tit. 30 
 §§ 1-4 ; 1 Dall. 20. In common parlance' 
 purchase signifies the buying of real estate 
 and of goods and chattels. 
 
 PURCHASER. A buyer; a vendee. 
 See Sale ; Parties ; Contkacts. 
 
 PURCHASE-MONEY. Theconsidera. 
 tion which is [agreed to be paid by the pur. 
 chaser 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 the 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 equi- 
 table lien. This doctrine is derived from the 
 civil law; Dig. 18. 1. 19. The case of Chap- 
 man vs. Tanner, 1 Vern. 267, decided m 
 1684, is the first where this doctrine was 
 adopted ; 7 S. & R. 73. It was stron^y op- 
 posed, but is now firmly estabhshed in Eng- 
 land and in the United States ; 6 Yerg. 50 ; 
 1 Johns. Ch. 808 ; 7 Wheat. 46, 50 ; 5 Monr. 
 287 ; 1 Harr. & J. 106 ; 4 Hawks, 256 ; 6 
 Conn. 468 ; 2 J. J. Marsh. 330. 
 
 But the lien of the seller exists only be- 
 tween the parties and those having notice 
 that the purchase-money has not been paid ; 
 3 J. J. Marsh. 557 ; S Gill & J. 425. See 
 Lien. 
 
 PURE DEBT. In Scotch Law. A 
 debt actually due, in contradistinction to one 
 which is to become due at a future day cer- 
 tain, which is called a future debt, and one 
 due provisionally, in a certain event, which 
 is called a contingent debt. 1 Bell, Com. 
 315. 
 
 PURE 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. PotWer, Obi. n. 176. 
 
 PURE PLEA. In Equity Pleading. 
 One which relies wholly on some matter de- 
 hors the bill, as, for example, a plea of a re- 
 lease on a settled account. 
 
 Pleas not pure are so called in contradis- 
 tinction to pure pleas; they are sometimes 
 also denominated negative pleas. 4 Bouvier, 
 Inst. n. 4275. 
 
 PURGATION. (L&t. purge ;bmpi-rm 
 and ago, to make cl^n). The clearing ones 
 self of an ofience charged, by denying tie 
 guilt on oath or affirmation. , 
 
 Canonical puliation was the act of jnsti- 
 
PURGED OF PARTIAL COUNSEL 489 
 
 PUTATIVE MARRIAGE 
 
 fying one's self, when accused of some offence, 
 in the presence of a number of persons worthy 
 of credit, generally twelve, who would swear 
 they believed the accused. See Compur- 
 gator ; Law of Wager. 
 
 Vulgar purgation consisted in superstitious 
 trials by hot and cold water, by fire, by hot 
 irons, by batell, by corsned, etc. 
 
 In modern times a man may purge him- 
 self of an offence in some cases where the 
 facts are within his own knowledge ; for ex- 
 ample, when a man is charged with a eon- 
 tempt of court, he may purge himself of such 
 contempt by swearing that in doing the act 
 charged he did not intend to commit a con- 
 tempt. 
 
 PURGED OP PARTIAL COUNSEL. 
 In Scotland every witness, before making 
 oath or affirmation, is purged of partial coun- 
 sel, i. e. cleared by examination on oath of 
 having instigated the plea, of having been 
 present with the party for whom he testifies 
 at consultations of lawyers, where it might 
 be shown what was necessary to be proved, 
 or of having acted as his agent in any of the 
 proceedings. So, in a criminal case, he who 
 IS agent of prosecutor or who tampers with 
 the panel cannot be heard to testify, because 
 o( partial counsel. Stair, Inst. p. 768, § 9; 
 Bell, Diet. Partial Counsel. 
 
 PURLIEU. In English Lavr. A space 
 of land near a forest, known by certain boun- 
 daries, which was formerly part of a forest, 
 but which has been separated from it. 
 
 The history of purlieus is this. Henry II., on 
 taking possession of the throne, manifested so 
 great a taste for forests that he enlarged the old 
 ones wherever he could, and by this means en- 
 closed many estates which had no outlet to the 
 public roads ; forests increased in this way until 
 the reign of king John, when the public recla- 
 mations were so great that much of this land 
 was disforested, — that is, no longer had the 
 privileges of the forests — and the land thus se- 
 parated bore the name of purlieu. 
 
 PURPARTY. That part of an estate 
 which, having been held in common by par- 
 ceners, is by partition allotted to any of 
 them. To make purparty is to divide and 
 sever the lands which fall to parceners. Old 
 N. B. U. 
 
 PURPORT. In Pleading. The sub- 
 stance of a writing as it appears on the face 
 of it to the eye that reads it. It differs from 
 tenor. 2 Russ. Cr. 365; 1 East, 179. 
 
 PURPRESTURE. An enclosure by a 
 private individual of a part of a common or 
 public domain. 
 
 According to Lord Coke, purpresture is a close 
 or enclosure, that is, when one encroaches or 
 makes several to himself that which ought to be 
 in common to many : as, if an individual were 
 to build between high and low water mark on 
 the side of a public river. In England this is a 
 nuisance, and in cases of this kind an injunction 
 will be granted, on ex-pa«te affidavits, to restrain 
 such a purpresture and nuisance ; 2 Bouvier, 
 Inst, n. 2382 ; 4 a. n. 3798 ; Co. 2d Inst. 28. 
 And see Skene, Pourpresture ; Glanville, lib. 9, 
 
 ch. 11, p. 239, note ; Spelman, Gloss. Purpres- 
 ture; Hale, de Port. Mar.; Hargrave, Law 
 Tracts, 84; 2 Anstr. 606 ; Callis, Sew. 174. 
 
 PURSER. The person appointed by the 
 master of a ship or vessel, whose duty it is to 
 take care of the ship's books, in which every 
 thing on board is inserted, as well the names 
 of mariners as the articles of merchandise 
 shipped. Roccius, Ins. note. 
 
 By statute pursers in the navy are now 
 called paymasters. R. S. § 1383. 
 
 PURSUER. The name by which the com- 
 plainant or plaintiff is known in the ecclesias- 
 tical courts. 3 Eccl. 350. 
 
 PURVIEW. That part of an act of the 
 legislature which begins with the words, " Be 
 it enacted," etc., and ends before the repeal- 
 ing clause. Cooke, 330 ; 3 Bibb, 181. Ac- 
 cording to Cowel, this word also signifies a 
 conditional gift or grant. It is said to be de- 
 rived from the French pourvu, provided. It 
 always implies a condition. Interpreter. 
 
 PUT. In Pleading. To select ; to de- 
 mand : as, "the said C D puts himself upon 
 the country ;" that is, he selects the trial by 
 jury as the mode of settling the matter in dis- 
 pute, and does not rely upon an issue in law. 
 Gould, PI. c. 6, part 1, § 19. 
 
 PUTATIVE. Reputed to be that which 
 is not. The word is frequently used : as, 
 putative father, putative marriage, putative 
 wife, and the like. And TouUier, tome 7, n. 
 29, uses the words putative owner, propri£- 
 taire putatif. Lord Kames uses the same 
 expression. Princ. of Eq. 391. 
 
 PUTATIVE FATHER. The reputed 
 father. 
 
 This term is usually applied to the father 
 of a bastard child. 
 
 The putative father is bound to support his 
 children, and is entitled to the guardianship 
 and care of them in preference to all persons 
 but the mother. 1 Ashm. 55. And see 5 
 Esp. 131 ; 1 B. & Aid. 491 ; Bott, Poor Law, 
 499 ; 1 C. & P. 268 ; 3 id. 36 ; 1 Ball & 
 B. 1. 
 
 PUTATIVE MARRIAGE. A mar- 
 riage which is forbidden but which has been 
 contracted in good faith and ignorance of the 
 impediment on the part of at least one of the 
 contracting parties. 
 
 Three circumstances must concur to consti- 
 tute this species of marriage. There must he 
 a bona fides. One of the parties at least 
 must have been ignorant of the impediment, 
 not only at the time of the marriage, but must 
 also have continued ignorant of it during his 
 or her life, because if he became aware of it 
 he was bound to separate himself from his 
 wife. The marriage must he duly solemnized. 
 The marriage must have been considered 
 lawful in the estimation of the parties or of 
 that party who alleges the bona fides. _ 
 
 A marriage in which these three circum- 
 stances concur, although null and void, will 
 have the effect of entitling the wife, if she be 
 
PUTTING IN FEAR 
 
 490 
 
 QU^STIO 
 
 in good faith, to enforce the rights of pro- 
 perty which would have been competent to her 
 if the marriage had been valid, and of ren- 
 dering the children of such marriage legiti- 
 mate. 
 
 This species of marriage was not recognized 
 by the civil law : it was introduced by the 
 canon law. It is unknown to the law of the 
 United States, and in England and Ireland. 
 In France it has been adopted by the Code 
 Civil, art. 201, 202. In Scotland the ques- 
 tion has not been settled. Burge, Confl. 
 Laws, 151, 152. 
 
 PUTTING IN FEAR. These words are 
 used in the definition of a robbery from the 
 person : the offence must have been com- 
 mitted hy putting in fear the person robbed. 
 Co. 3d Inst. 68 ; 4 Bla. Com. 243. 
 
 This is the circumstance which distin- 1 
 
 guishes robbery from all other larcenies But 
 what force must be used or what kind of fears 
 excited are questions very proper for discus- 
 sion. The goods must be taken against the 
 will of the possessor. 
 
 There must either be a putting in fear or 
 actual violence,- though both need not be posi 
 tively shown, for the former will be inferred 
 fron» the latter, and the latter is sufficiently 
 implied in the former. For example, when a 
 man is suddenly knocked down, and robbed 
 while he is senseless, there is no fear, yet in 
 consequence of the violence, it is presumed- 
 2 East, PI. Cr. 711 ; 4 Binn. 379 ; 3 Wash' 
 C. C. 209. 
 
 In an indictment for robbery, at common 
 law, it is not necessary to allege a putting in 
 fear in addition to the allegation of force and 
 violence ; 7 Mass. 242 j 8 Cush. 217. 
 
 Q. 
 
 QITACK. One who, without sufficient 
 knowledge, study, or previous preparation, 
 undertakes to practise medicine or surgery, 
 under the pretence that he possesses secrets 
 in those arts. 
 
 To call a regular physician a quack is 
 actionable. A quack is criminally answer- 
 able for his unskilful practice, and also civilly 
 to his patient in certain cases. See Mal- 
 practice ; Physician. 
 
 QtTADRANS (Lat.). InCivULaiv. The 
 fourth part of the whole. Hence the heir ex 
 quadrante; that is to say, of the fourth part 
 of the whole. 
 
 QUADRIENNIUM UTILE (Lat.). In 
 Scotolx Law. The four years of a minor 
 between his age of twenty-one and twenty- 
 five^ years are so called. During this period 
 he is permitted to impeach contracts made 
 against his interest previous to his arriving at 
 the age of twenty-one years. 1 Bell, Com. 
 135. 
 
 QUADRIPARTITE (Lat.). Having four 
 parts, or divided into four parts : as, this in- 
 denture quadripartite, made between A B, 
 of the one part, C D, of the second part, 
 E F, 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 Bail. 558. See Mu- 
 latto. 
 
 QUADRUPLICATION. In Pleading, 
 
 Formerly this word was used instead of sur- 
 rebutter. 1 Brown, Civ. Law, 469, n. 
 
 QU2E! EST EADEM (Lat. which is the 
 same) . In Pleading. A clause containing 
 a statement that the trespass, or other fact 
 mentioned in the plea, is the same as that 
 laid in the declaration, where from the cir- 
 cumstances there is an apparent difierence 
 between the two. 1 Chitty, PL *582, Gould, 
 PI. c. 3, §§ 79, 80 ; 29 Vt. 465. 
 
 The form is as follows: "which are the 
 same assaulting, beating, and ill-treating, the 
 said John, in the said declaration mentioned, 
 and whereof the said John hath above 
 thereof complained against the said James." 
 See 1 Saund. 14, 208, n. 2 ; 2 id. 5 a, n. 3; 
 Arch. Civ. PL 217 ; Comyns, Dig. Pleader 
 (E 31) ; Cro. Jac. 372. 
 
 QU.S1RE (Lat.). Query; noun andverb. 
 A word frequently used to denote that an in- 
 quiry ought to be made of a doubtful thing. 
 2 Lilly, Abr. 406. Commonly used in the 
 syllabi of the reports, to mark points of law 
 considered doubtful. 
 
 QU.S!RENS NON INVBNIT PLB- 
 GIUM (Lat.). In Practice. The plaintiff 
 has not found pledge. The return made by 
 the sheriff to a writ directed to him with this 
 clause, mamely, si Afecerit B securum de 
 clamore suo prosequando, when the plaintiff 
 has neglected to find sufficient security. Fitz. 
 N. B. 88. 
 
 QU.aE!STIO (Lat.). In Roman La-w. A 
 sort of commission (ad qucerendum) to inquire 
 into some criminal uptter given to a magis- 
 trate or citizen, who was called quiBsitor or 
 qticestor, who made report thereon to the senate 
 or the people, as the one or the other appointed 
 
QUjESTOK 
 
 491, 
 
 QUALITY 
 
 him. In progress of time he was empowered 
 (with the assistance of a counsel) to adjudge 
 the case ; and the tribunal thus constituted was 
 called qucBstio. 
 
 This special tribunal continued in use until the 
 end of the Koman republic, although it was re- 
 sorted to, during the last times of the republic, 
 only in extraordinary cases. 
 
 The manner In which they were constituted 
 was this. If the matter to be inquired of was 
 within the jurisdiction of the comitia, the senate, 
 on the demand of the consul, or of a tribune, or 
 of one of its members, declared by a decree that 
 there was cause to prosecute a citizen. Then 
 the consul ex auctoritate senatus asked the people 
 in comitia (rogahat rogatio) to enact this decree 
 into a law. The comitia adopted it, either 
 simply or with amendment, or they rejected it. 
 
 The increase of population and of crimes ren- 
 dered this method, which was tardy at best, 
 onerous, and even impracticable. In the year 
 A. u. 0. 604, or 149 b. c, under the consulship 
 of Censorinus andManilius, the tribune Calpur- 
 nius Piso procured the passage of a law estab- 
 lishing a cptestio perpetua, to take cognizance of 
 the crime of extortion committed by Roman 
 magistrates against strangers de pecuniis repetim- 
 dis. Cicero, Brut. 27 ; de Off. il. 21 ; in Verr. iv. 
 25. 
 
 Many such tribunals were afterwards estab- 
 lished, such as Qusestiones de majestate, de am- 
 bitu, de peculatu, de vi, de sodalitiis, etc. Each 
 was composed of a certain number of judges taken 
 from the senators, and presided over by a prae- 
 tor, althongh he might delegate his authority to 
 a public officer, who was called judex qucestionis. 
 These tribunals continued a year only ; for the 
 meaning of the word perpetutis is non, interrvp- 
 tus, not interrupted during the term of its ap- 
 pointed duration. 
 
 The establishment of these gucestiones deprived 
 the comitia of their criminal jurisdiction, except 
 the crime of treason : they were, in fact, the de- 
 positories of the judicial power during the sixth 
 and seventh centuries of the Soman republic, 
 the last of which was remarkable for civil dis- 
 sensions and replete with great public transac- 
 tions. Without some knowledge of the constitu- 
 tion of the Quwstio perpetua, it is impossible to 
 understand the forensic speeches of Cicero, or 
 even the political history of that age. But when 
 Julius Caesar, as dictator, sat for the trial of 
 Ligarius, the ancient constitution of the re- 
 public was, in fact, destroyed, and the criminal 
 tribunals, which had existed in more or less 
 vigor and purity until then, existed no longer 
 . but in name. Under Augustus, the concentra- 
 tion of the triple power of the consuls, pro-con- 
 suls, and tribunes in his person transferred to 
 him, as of course, all judicial powers and 
 authorities. 
 
 Q]tT.a!STOR (Lat.). ' The name of a 
 magistrate of ancient Rome. 
 
 QTIALIPICAraON. Having the requi- 
 site qualities for a thing : as, to be president 
 of the United States, the candidate must pos- 
 sess certain qualifications. 64 Mo. 89. 
 
 QUALIFIED ELECTOH. A person who 
 is legally qualified to vote. 28 Wise. 358. 
 
 QUALIFIED FEE. One which has a 
 qualification subjoined to it, and which must 
 he determined whenever the qualification an- 
 nexed to it is at an end. A limitation to a 
 man and his heirs on the part of his father 
 
 affords an example of this species of estate. 
 Littleton, § 254 ; 2 Bla. Com. 109. 
 
 QUALIFIED INDORSEMENT. A 
 
 transfer of a bill of exchange or promissory 
 note to an indorsee, without any liability to 
 the indorser: the words usually employed for 
 this purpose are sans recours, without re- 
 course. 1 Bout. Inst. n. 1138. 
 
 QUALIFIED PROPERTY. Property 
 not in its nature permanent, but which may 
 sometimes subsist and at other times not sub- 
 sist. A defeasible and precarious ownership, 
 which lasts as long as the thing is in actual 
 use and occupation : e. </. , frst, property in 
 animals ferce naturce, or in light, or air, 
 where the qualified property arises from the 
 nature of the thing ; second, property in a 
 thing held by any one as a bailee, where the 
 qualified property arises not from the nature 
 of the thing, but from the peculiar circum- 
 stances under which it is held ; 2 Bla. Com. 
 391, 395* i 2 Kent, 347 ; 2 Woodd. Lect. 
 385. 
 
 Any ownership not absolute. 
 
 QUALIFY. To become qualified or fit 
 for any office or employment. To take the 
 necessary steps to prepare one's self for an ap- 
 pointment ; as, to take an oath to discharge 
 the duties of an office, to give the bond re- 
 quired of an executor, etc. 
 
 QUALITY. Persons. The state or con- 
 dition of a person. 
 
 Two contrary qualities cannot be in the 
 same person at the same time. Dig. 41. 10. 
 4. Every one is presumed to know the 
 quality of the person with whom he is con- 
 tracting. In the United States the people 
 are all upon an equality in their civil rights. 
 
 In Pleading. That which distinguishes 
 one thing from another of the same kind. 
 
 It is, in general, necessary, when the declar- 
 ation alleges an injury to the goods and chat- 
 tels, 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, etc. The same rule re- 
 quires that, in an action for an injury to real 
 property, the quality should be shown ; Steph. 
 PI. 214, 215. See, as to the various qualities, 
 Ayliffe, Pand. [60]. 
 
 It is often allowable to omit from the indict- 
 ment, and it is seldom necessary to prove 
 with precision, allegations of quality, or, in 
 other words, those allegations which describe 
 the mode in which certain acts have been done. 
 Thus, if the charge is of a felonious assault 
 with a staff, and the proof is of such an as- 
 sault with a stone, or if a wound, alleged to 
 have been given with a, sword, is proved to 
 have been inflicted by an axe, or if a pistol 
 is stated to have been loaded with a bullet, 
 and it turns out to have been loaded with 
 some other destructive material, the charge is 
 
QUAMDIU SE BENE GESSERIT 492 
 
 QUARANTINE 
 
 substantially proved, and no variance occurs ; 
 1 East, PI. C. 341 ; 5 C. & P. 128; 9 id. 
 525, 548. 
 
 QUAMDIU SE BENE GESSERIT 
 (Lat. 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. 
 
 QUANDO ACCIDERINT (Lat. when 
 they fall in). 
 
 In Practice. When a defendant, execu- 
 tor or administrator, pleads plene adminis- 
 travit, the plaintiff may pray to have judg- 
 ment of assets quando acciderint ; Bull. N. 
 P. 169 ; Bacon, Abr. Executor (M). 
 
 By taking a judgment in this form the 
 plaintiff admits that the defendant has fully 
 administered to that time ; 1 Pet. C. C. 442, 
 n. See 11 Viner, Abr. 379 ; Comyns. Dig. 
 Pleader (2 D 9). 
 
 QUANTI MINORIS (Lat.). The name 
 of a particular action in Louisiana. An ac- 
 tion quanti minoris is one brought for the re- 
 duction of the price of a thing sold, in conse- 
 quence of defects in the thing which is the 
 object of the sale. 
 
 Such action must be commenced within 
 twelve months from the date of the sale, or 
 from the time within which the defect became 
 known to the purchaser ; 3 Mart. La. n. s. 
 287 ; 11 Mart. La. 11. 
 
 QUANTITY. In Pleading. That which 
 is susceptible of measure. 
 
 It is a general rule that, when the declara- 
 tion alleges an injury to goods and chattels, 
 or any contract relating to them, their quan- 
 tity should be stated ; Gould, PI. c. 4, | 35. 
 And in actions for the recovery of real estate 
 the quantity of the land should be specified ; 
 Bracton, 431 a ; 11 Co. 25 6, 55 a ; Doctr. 
 Plac. 85, 86 ; 1 East, 441 ; 8 id. 367 ; 13 id. 
 102; Steph. PI. 314, 315. 
 
 QUANTUM DAMNIFICATUS (Lat.). 
 • In Equity Practice. An issue directed by a 
 court of equity to be tried in a court of law, 
 to ascertain by a trial before a jury the 
 amount of damages suffered by the non-per- 
 formance of some collateral undertaking 
 which a penalty has been given to secure. 
 When such damages have thus been ascer- 
 tained, the court will grant relief upon their 
 payment. 4 Bouvier, Inst. n. 3913. 
 
 QUANTUM MERUIT (Lat.). In 
 Pleading. As much as he has deserved. 
 
 When a person employs another to do work 
 for him, without any agreement as to his com- 
 pensation, the law implies a promise from the 
 employer to the workman that he will pay 
 him for his services as much as he may deserve 
 or merit. In such case the plaintiff may sug- 
 gest in his declaration that the defendant pro- 
 mised to pay him as much as he reasonably 
 deserved, and then aver that his trouble was 
 worth such a sum of money, which the defen- 
 dant has omitted to pay. This is called an 
 
 assumpsit on a quantum meruit. 2 Bla, Com 
 162, 163 ; 1 Viner, Abr. 346. 
 
 When there is an express contract for a 
 stipulated amount and mode of compensation 
 for services, the plaintiff cannot abandon the 
 contract and resort to an action for a quanUxm 
 meruit on an implied assumpsit ; 14 Johns 
 326 ; 18 id. 169 ; 10 S. & R. 236. But see 
 7 Ora. 299 ; Stark. 277 ; Holt, N. P. 236- 
 10 Johns. 36 ; 12 id. 374 ; 13 id. 86, 94* 
 359 ; 14 id. 326 ; 5 M. & W. 114 ; 4 C. & 
 P. 93 ; 4 Scott, N. 8. 874; 4 Taunt. 475; 1 
 Ad. & E. 333. See Common Counts. 
 
 QUANTUM VAI.EBAT (Lat. as much 
 as it was worth). In Pleading. When 
 goods are sold without specifying any price, 
 the law implies a promise from the tuyer to 
 the seller that he will pay him for them aa 
 much as they were worth. 
 
 The plaintiff may, in such case, suggest 
 in his declaration that the defendant pro- 
 mised 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. See the authorities cited 
 under the article Quantum Meeuit. 
 
 QUARANTINE. In Maritime Law. 
 
 The space of forty days, or less, during which 
 the crew of a ship or vessel coming from s 
 port or place infected- or supposed to be in- 
 fected with disease are required to remain on 
 board after their arrival, before they can be 
 permitted to land. It was probably estab- 
 lished by the Venetians in 1484. Baker, 
 Quar. 3. 
 
 By act of congress of April 29, 1878, eh. 
 66, vessels from foreign ports where contagions, 
 and other diseases exist, are forbidden to entCT 
 the United States, excepting subject to certain 
 regulations prescribed. 
 
 The object of the quarantine is to ascertain 
 whether the crew are infected or not. To 
 break the quarantine without legal authority 
 is a misdemeanor ; 1 Russ. Cr. 138. 
 
 Quarantine regulations made by the states 
 are sustainable as the exercise of the police 
 power ; Cooley, Const. Lim. 729 ; 95 .U. S. 
 465. 
 
 In cases of insurance of ships, the insurer, 
 is responsible when the insurance extends to 
 her being moored in port twenty-four hours 
 in safety, although she may have arrived, if 
 before the twenty-four hours are expired she 
 is ordered to perform quarantine, if any acci- 
 dent contemplated by the policy occur; 1 
 Marsh, Ins. 264. 
 
 See Baker, Quarantine. , , ^ 
 
 In Real Property. The space of forty 
 days during which a widow has a nght to 
 remain in her late husband's principal man- 
 sion immediately after his death. The nght 
 of the widow is alsocaUed her quarantine. 
 
 In some, perhaps all, of the states ot tbe 
 United States, provision has been expressly 
 made by statute securing to the widow tM 
 right for a greater or less space of time. 
 See 4 Kent, 62 j Walk. Am. Law, 231 ! ? 
 
QUARE 
 
 493 
 
 QUASH 
 
 Washb. R. P. 272. Quarantine is a personal 
 right, forfeited, by implication of law, by a 
 second marriage ; Co. Litt. 32. See Bacon, 
 Abr. Dower (B) ; Co. Litt. 32 6, 34 6 ; Co. 
 2d Inst. 16, 17. 
 
 QITARE! (Lat.). In Pleading. Where- 
 fore. 
 
 This word is sometimes used in the writ in per- 
 tain actions, but is inadmissible in a material 
 averment in the pleadings, for it is merely inter- 
 rogatory ; and, therefore, when a declaration be- 
 gan with complaining of the defendant, " where- 
 fore with force, etc. he broke and entered " the 
 plaintiff's close, it was considered ill ; Bacon, 
 Abr. Plem (B. 5, 4) : Gould, PI. c. 3, § 34. 
 
 QUASE CLATJSUM FRBGIT. See 
 
 Tbkspass. 
 
 QUARE EJECIT INFRA TERMI- 
 HUM. See Ejectment. 
 
 QUARE IMPEDIT (Lat. why he hin- 
 ders). In English La'w. A real possessory 
 action which can be brought only in the court 
 of common pleas, and lies to recover a pre- 
 sentation when the patron's right is disturbed, 
 or to try a disputed title to an advowson. See 
 Disturbance ; Mireh. Advow. 265 ; 2 
 Saund. 336 a. 
 
 QUARE OBSTRUXIT (Lat. why he 
 obstructs). The name of a writ formerly used 
 in favor of one who, having a right to pass 
 through his neighbor's grounds, was prevented 
 enjoyrag such right, because the owner of the 
 grounds had obstructed the way. 
 
 QUARREIi. A dispute ; a difference. 
 In law, particularly in releases, which are 
 taken most strongly against the releasor, 
 when a man releases all quarrel he is said to 
 release all actions, real and personal ; 8 Co. 
 153. 
 
 QUARRT. A place whence stones are 
 dug for the purpose of being employed in 
 building, making roads, and the like. In 
 Inining law it is said to be an open excavation 
 where the works are visible at the surface. It 
 is said to be derived from quadratarius, a 
 stone-cutter or squarer. ^Bainbr. Mines, 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. See Mines ; 
 
 Waste. 
 
 QUART. A liquid measure, containing 
 one-fourth part of a gallon. 
 
 QUARTER: A measure of length, equal 
 to four inches. See Measure. 
 
 QUARTER-DAYS. The four days of 
 the year on which rent payable quarterly 
 becomes due. 
 
 QUARTER-DOLLAR. A silver coin 
 of the United States, of the value of twenty- 
 five cents. 
 
 Previous to the act of Feb. 21, 1853, c. 79, 10 
 U. 8. Stat, at Large, 160, the weight of the quar- 
 ter-dollar was one hundred and three and one- 
 *ighth grains ; but coins struck after the passage 
 of that act were of the weight of ninety-six 
 
 grains. The fineness was not altered by the act 
 cited : of one thousand parts, nine hundred are 
 pure silver and one hundred alloy. By the act 
 of 13th of Feb. 1873, the weight of the quarter- 
 dollar is iixed at one-half that of the half-dollar 
 (twelve and one-half grams) ; R. S. § 3573 ; and 
 by act of July 33, 1876, it is made legal tender 
 in all sums public and private not exceeding ten 
 dollars ; Supplement R. S. p. 488. 
 
 See Halp-Dollah, — in which the change in 
 the weight of silver coins is more fully noticed. 
 
 QUARTER-EAGLE. A gold coin of 
 the United States, of the value of two and a 
 half dollars. See Money ; Coin. 
 
 QUARTER-SALES. In New York a 
 certain fraction of the purchase-money is often 
 conditioned to be paid back on alienation of 
 the estate ; and this fine on alienation is ex- 
 pressed as a tenth-sales, a quarter-sales, etc. 
 7 Cow. 285 ; 7 Hill, 253 ; 7 N. Y. 490. 
 
 QUARTER SEAL. In Scotch Law; 
 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, Diet. 
 
 QUARTER SESSIONS. A court bear, 
 ing this name, mostly invested with the trial 
 of criminals. It takes its name from sitting 
 quarterly, or once in three months. 
 
 The English courts of quarter sessions 
 were erected during the reign of Edward III. 
 See Stat. 36 Edw. III. ; Crabb, Eng. Law, 
 278. 
 
 QUARTER-TEAR. In the computa- 
 tion of time, a quarter-year consists of ninety- 
 one days. Co. Litt. 135 6; 2 RoUe, Abr. 
 521, 1. 40; N. Y. Rev. Stat. pt. 1, c. 19, t. 
 1, §3. 
 
 QUARTERING. A barbarous punish, 
 ment formerly inflicted on criminals by tear- 
 ing them to pieces by means of four horses, 
 one attached to each limb. 
 
 QUARTERING OF SOLDIERS. Fur- 
 nishing soldiers with board or lodging or 
 both. The constitution of the United States, 
 Amendm. art. 3, provides that "no soldier 
 shall, in time of peace, be quartered in any 
 house without the consent of the owner, nor in 
 time of war but in a manner to be prescribed 
 by law." See Cooley, Const. Lim. 378 ; 
 Rawle, Const. 126. 
 
 QUARTEROON. One who has had one 
 of his grandparents of the black or African 
 race. 
 
 QUARTO DIE POST (Lat. fourth day 
 after) . Appearance-day, which is the fourth 
 day inclusive from the return of the writ; 
 and if the person summoned appears on that 
 day, it is suflScient. On this day, also, the 
 court begins to sit for despatch of business. 
 These three days were originally given as an 
 indulgence. 3 Sharsw. Bla. Com. 278*; 
 Tidd, New Pr. 134. But this practice is now 
 altered. 15 & 16 Vict. u. 76. 
 
 QUASH. In Practice. To overthrow 
 or annul. 
 
 When proceedings are clearly irregular and 
 
QUASI 
 
 494 
 
 QUASI-CONTRACTUS 
 
 void, the courts will qaash 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 Bouvier, Inst. n. 
 3342. 
 
 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 applicatioDj will, in general, 
 quash it : as, if it have no jurisdiction of the 
 offence charged, or when the matter charged 
 is not indictable. 1 Burr. 516, 543 ; Andr. 
 226. It is in the discretion of the court to 
 quash an indictment or to leave the defendant 
 to a motion in arrest of judgment ; 1 Cush. 
 189. When the application to quash is made 
 on the part of the defendant, in English 
 practice, the court generally refuses to quash 
 the indictment when it appears some enor- 
 mous crime has been committed ; Comyns, 
 Dig. Indictment (H) ; Wils. 325 ; 3 Term, 
 621; 5 Mod. 13; 6 id. 42; 3 Burr. 1841; 
 Bacon, 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 pro- 
 secution appears to be bona fide. If the pro- 
 secution 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 State Tr. 232; 
 1 Hale, 35 ; Fost. 231 ; and before the de- 
 fendant's recognizance has been forfeited; 1 
 Salk. 380. See Cassetur Breve. 
 
 QUASI (Lat. as if, almost). A term 
 used to mark a resemblance, and which sup- 
 poses a difference between two objects. Dig. 
 11. 7. 1. 8. 1. It is exclusively a term of 
 classification. Prefixed to a terra of Roman 
 law, it implies that the conception to which it 
 serves as an index is connected with the con- 
 ception with which the comparison is insti- 
 tuted by a strong superficial analogy or re- 
 semblance. It negatives the idea of identity, 
 but points out that the conceptions are suffi- 
 ciently similar for one to be classed as the 
 equal of the other; Maine, Anc. Law, 332. 
 Civilians use the expressions quasi-contrac- 
 tus, quasi-delictum, quasi-posiessio, quasi- 
 traditio, etc. 
 
 QITASI-APPINITY. In Civil Law. 
 
 The afiinity which exists between two per- 
 sons, 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 quasl- 
 affinity. 
 
 The history of Eng^land furnishes an example 
 of this kind. Catherine of Arragon was be- 
 trothed to the brother of Henry VIII. After- 
 wards, Henry married her, and under the pre- 
 tence of this quasi-affinity he repudiated her, be- 
 cause the marriage was incestuous. 
 
 QUASI-CONTRACTUS (Lat.) in 
 CivULaw. 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. 
 
 By article 2372 of the Civil Code of Louisiana 
 which is translated from article 1371 of the Code 
 Civil, quasi-contracts are defined to be "the law 
 ful and purely voluntary acts of a man from 
 which there results any obligation whatewtoa 
 third person, and sometimes a reciprocal ohliffa- 
 tion between the parties." In contracts it is 
 the consent of the contracting parties which pro. 
 duces the obligation ; in quasi-contracts no con 
 sent is required, and the obligation arises from 
 the law or natural equity, on the facts of the 
 case. These acts are called quasi-contracts be- 
 cause, without being contracts, they bind' the 
 parties as contracts do. 
 
 There is no term in the common law which an- 
 swers to that of quasi-contracts ; many quasi- 
 contracts may doubtless be classed among im- 
 plied contracts : there is, however, a difference 
 to be noticed. For example : in case money 
 should be paid by mistake to a minor, it maybe 
 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 douhtfnl, 
 upon principle, whether such recovery could be 
 had. 
 
 Quasi-contracts may be multiplied almost 
 to infinity. They are, however, divided 
 into five classes ; such as relate to the volun- 
 tary and spontaneous management of the 
 affairs of another, without authority (nego. 
 tiorum gestio) ; the administration of tutor- 
 ship ; the management of common property 
 {communio bonorum) ; the acquisition of an 
 inheritance ; and the payment of a sum of 
 money or other thing by mistake, when noth- 
 in» was due (indehiti solutio). 
 
 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 stipu- 
 lation ; and the payment of a thing which is 
 not due, to a loan. 
 
 All persons, even infants and persons desti- 
 tute of reason, who are consequently incapa- 
 ble 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 re- 
 quired in the person by whom or in Vhose 
 fevor the obligations which result from it are 
 contracted. For instance, if a person under- 
 takes the business of an infant or a lunatic, 
 this is a quasi-contract, which obliges the 
 infant or the lunatic to the person undertak- 
 ing his affairs, for what he has beneficially ex- 
 pended, and reciprocally obliges the person to 
 give an account of his administration or man- 
 agement. 
 
QUA SI-CORPORATIONS 
 
 495 
 
 QUE ESTATE 
 
 Quasi-contracts are usually identified with 
 implied contracts, but this is an error, for im- 
 plied contracts are true contracts which quasi- 
 contracts are not, inasmuch as the conven- 
 tion, the essential part of a contract, was 
 wanting : Maine, Anc. Law, 332. 
 
 See, generally, Justinian, Inst. 3. 28 ; Dig. 
 3. 5; Ayl. Pand. b. 4, tit. 31 ; 1 Brown, 
 Civil Law, 386; Erskine, Inst. 3. 3. 16; 
 Pardessus, Dr. Com. n. 192 et seq.; Pothier, 
 Obi. n. 113 et seq.; Merlin, Rupert. Quasi- 
 Contracl. 
 
 QUASI-CORPORATIONS. A term 
 applied to those bodies or municipal societies 
 which, though not vested with the general 
 powers of corporations, are yet recognized, by 
 statutes or immemorial usage, as persons or 
 aggregate corporations, with precise duties 
 which may be enforced, and privileges which 
 may be maintained, by suits at law. They 
 may be considered guasi-corporations, with 
 limited powers, coextensive with the duties 
 imposed upon them by statute or usage, but 
 restrained from a general use of the authority 
 which belongs to those metaphysical persons 
 by the common law. See 13 Mass. 192; L 
 K. 1 H. L. 293 ; Boone, Corp. § 10. 
 
 Among lyuasi-corporations may be ranked 
 counties, and also towns, townships, parishes, 
 hundreds, and other political divisions of 
 counties, which are established without an ex- 
 press charter of incorporation ; commissioners 
 of a county, most of the commissions instituted 
 for public use, supervisors of highways, over- 
 seers or guardians of the poor, loan officers of 
 a county, trustees of a school fund, trustees of 
 the poor, school districts, trustees of schools, 
 judges of a court authorized"to take bonds to 
 themselves in their official capacity, and the 
 like, who are invested with corporate powers 
 sub modo and for a few specified purposes 
 only. The governor of a state has been held 
 a juasi-corporation sole; 8 Humph. 176; 
 so has a trustee of a friendly society in whom, 
 by statute, property is vested, and by and 
 against whom suits may be brought ; see 1 B. 
 & Aid. 157 ; so if a levee district organized 
 by statute to reclaim land from overflow ; 51 
 Cal. 406 ; and fire departments having by 
 statute certain powers and duties which neces- 
 sarily invest them with a limited capacity to 
 sue and he sued ; 1 Sweeny, 224. It may be 
 laid down as a general rule that where a body 
 is created by statute possessing powers and 
 duties which involve incidentally a qualified 
 capacity to sue and be sued, such body is to 
 be considered a juasi-corporation ; id.; 51 
 Cal. 406. See, generally, Ang. & A. Corp. 
 § 24; 13 Am. Dec. 524 ; but not such a body 
 as (!he general assembly of the Presbyterian 
 church, which has not the capacity to sue and 
 be sued ; 4 Whart. 531 ; Ang. & A. Corp. § 24. 
 
 QUASI-DELICT. In CivU Law. An 
 
 act whereby a person, without malice, but by 
 fault, negligence, or imprudence not legally 
 excusable, causes injury to another. 
 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. Bowyer, Mod. Civ. 
 Law, c. 43, p. 265. 
 
 QUASI-DEPOSIT. A kind of involun- 
 tary bailment, which takes place where a 
 person acquires possession of property law- 
 fully, by finding. Story, Bailm. § 85. 
 
 QtlASI-OPPENCES. Offences for which 
 some person other than the actual perpetrator . 
 is responsible, the perpetrator being presumed 
 to act by command of the responsible party. 
 
 Injuries which have been unintentionally 
 caused. See Master and Servant. 
 
 QUASI-PARTNERS. Partners of lands, 
 goods, or chattels, who are not actual partners, 
 are sometimes so called. Pothier, de Soci6t6, 
 App. n. 184. See Part-Owners. 
 
 QUASI-POSTHUMOUS CHILD. In 
 Civil Law. One who, born during the life 
 of his grandfather or other male ascendant, 
 was not his heir at the time he made his testa- 
 ment, but who by the death of his father be- 
 came his heir in his lifetime. Inst. 2. 13. 2 ; 
 Dig. 28. 3. 13. 
 
 QUASI-PURCHASB. 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 a thing : as, if a man 
 should consume a cheese, which is in his pos- 
 session and belonging to another, with an in- 
 tent 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. § 691. 
 
 QUASI-TRADITIO (Lat.). In CivU 
 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. LeQ. 
 Elem. § 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 (Lat. four men). In 
 Roman Law. Magistrates who had the care 
 and inspection of roads. Dig. 1. 2. 3. 30. 
 
 QUAY. A wharf at which to load or 
 land goods. (Sometimes spelled key.) 
 
 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 La. 
 152, 215. So much of the quay as is requi- 
 site for the public use of loading and unload- 
 ing vessels is public property, and cannot be 
 appropriated to private use, but the rest may 
 be private property. 
 
 QUE EST MBSME (L. Er.). Which 
 is the same. See QUi« est Eadem. 
 
 QUE ESTATE [qnem statum, or wTiicli 
 estate). A plea by which a man prescribes 
 
QUEAN 
 
 496 
 
 QUIA 
 
 in himself and those whose estate he holds. 
 2 Bla. Com. 270 ; 18 Viner, Abr. 133-140 ; 
 Co. Lift. 121 a. 
 
 QUEAN. A worthless woman ; a strum- 
 pet. The meaning of this word, which is 
 now seldom used, is said not to be well ascer- 
 tained. 2 RoUe, Abr. 296; Bacon, Abr. 
 Slander (.U 3). 
 
 QITEEN ANISTE'S BOUNTY. By stat. 
 2 Anne, c. 11, all the revenue of first-fruits 
 and tenths was vested in trustees' forever, to 
 form a perpetual fund for the augmentation 
 of poor livings. 1 Bla. Com. 286 ; 2 Burn, 
 Eecl. Law, 260-268. 
 
 QUEEN CONSORT. The wife of a 
 reigning king. 1 Bla. Com. 218. She is 
 looked upon by the law as a feme sole, as to 
 her power of contracting, suing, etc. Id. 
 
 QUEEN DOWAGER. The widow of 
 the king. She has most of the privileges be- 
 longing to a queen consort. 1 Bla. Com. 
 229. 
 
 QUEEN-GOLD. A royal revenue be- 
 longing to every queen consort during her 
 marriage with the king, and due from every 
 person who has made a voluntary fine or of- 
 fer to the king of ten marks or upwards, in 
 consideration of any grant or privilege con- 
 ferred by the crown. It is due of record on 
 the recording of the fine. It was last exacted 
 in the reign of Charles I. It is now quite 
 obsolete. 1 Bla. Com. 220-222 ; Fortescue, 
 de Laud. 398. 
 
 QUEEN REGNANT. She who holds 
 the crown in her own right. She has the 
 same duties and prerogatives, etc. as a king. 
 Stat. 1 Mar. I. st. 3, c. 1 ; 1 Bla. Com. 218 ; 
 1 Woodd. Lect. 94. 
 
 QUERELA (Lat.). An action preferred 
 in any court of justice. The plaintifiF 
 was called querens, or complainant, and his 
 brief, complaint, or declaration was called 
 querela. Jacob, Law Diet. 
 
 QUERIiJiA INOPPICIOSI TBSTA- 
 MENTI (^Lat. complaint of an undutiful or 
 unkind will). In Civil Lainr. A species 
 of action allowed to a child who had been 
 unjustly disinherited, to set aside the will, 
 founded oh the presumption of law, in such 
 cases, that the parent was not in his right 
 mind. Calvinus, Lex.; 2 Kent, 327 ; Bell, 
 Diet. 
 
 QUESTION. In Criminal Law. A 
 
 means sometimes employed, in some coun- 
 tries, by torture, to compel supposed great 
 criminals to disclose their accomplices or to 
 acknowledge their crimes. 
 
 This torture is called qmstion because, as the 
 unfortunate person accused is made to suffer 
 pain, he is asked qmstioni as to hi^ supposed 
 crime or accomplices. This is unknown in the 
 United States. See Pothter, Procedure Criml- 
 nelle, sect. 5, art. 3, § 8. 
 
 In Evidence. An interrogation put to a 
 witness, requesting him to declare the truth 
 of certain tacts as far as he knows them. 
 
 Questions are eitlier general or leadina Bv « 
 general question is meant such a. one as reani™ 
 the witness to state all he knows, withoutTnv 
 suggestion being made to him : as, WU gave tk 
 
 OCOW i 
 
 A leading question is one which leads the 
 mind of the witness to the answer, or Bue-m>iit«it 
 to him : a.B, Sid AS give the Urn ? ^^ 
 
 The Romans called a question by which the 
 fact or supposed fact which the interrogator ex 
 pected or wished to find asserted in and bv the 
 answer was made known to the proposed respon 
 dent, a suggestive interrogation : as, Is not your 
 name AS? See Leadino Question. 
 
 In Practice. A point on which the par- 
 ties arenot agreed, and which is submitted to 
 the decision of a judge and jury. 
 
 When the doubt or difference arises as to what 
 the law is on a certain state of facte, this is said 
 to be a legal question ; and when the party de- 
 murs, 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. 
 
 QU.S!STORES CLASSICI (Lat.). In 
 Roman Lavir. Officers intrusted with the 
 care of the public money. 
 
 Their duties consisted in making the neces- 
 sary payments from the cerarium, and receiv- 
 ing the public revenues. Of both they had 
 to keep correct accounts in their taluloe pub- 
 licce. Demands which any one might have 
 on the serarium, and outstanding debts, were 
 likewise registered by them. Fines to be 
 paid to the public treasury were registered ani 
 exacted by them. They were likewise topro- 
 vide proper accommodations for foreign am- 
 bassadors 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 em- 
 pire became extended. There were ques- 
 tors of cities and of provinces, and questors 
 of the army: the latter were in fact pay- 
 masters. 
 
 QUESTORBS PARRICIDII (Lat.). In 
 Roman Law. Public accusers, two in num- 
 ber, 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 estlj 
 period. Smith, Diet. 6r. & Rom. Antiq. 
 
 QUI TAM (Lat. who as well). An ac- 
 tion under a statute which imposes a penalty 
 for the doing or not doing an act, and gives 
 that penalty in part to whomsoever will sue for 
 the same, and the other part to the com- 
 monwealth, or some charitable, literan^ or 
 other institution, and makes it recoverable bjr 
 action. The plaintiff describes himself as 
 suing as well for the commonwealth, '"■' *^' 
 ample, as for himself. Espinasse, Pen. Act, 
 6, 6; 1 Viner, Abr. 197; 1 Salk. ^29. n-i 
 Bacon, Abr. 
 
 QUIA (Lat.). In Pleading. Because. 
 This word is considered a term of affirmation. 
 
QUIA EMPTORES 
 
 497 
 
 QUINTO EXACTUS 
 
 It is sufficiently direct and positive for intro- 
 ducing a material averment. 1 Saund. 117, 
 n. 4; Comyns, Dig. Pleader (C 77). 
 
 QUIA EMPTORES (Lat.). A name 
 sometimes given to the English Statute of 
 Westminster 3, 13 Edw. I. c. 1, from its ini- 
 tial words. 2 Bla. Com. 91. 
 
 QTTIA TIMET (Lat. because he fears). 
 A term applied to preventive or anticipatory 
 remedies. According to Lord Coke, "there 
 be six writs of law that may be maintained 
 quia timet, before any molestation, distress, 
 or impleading: as. First, a man may have 
 his writ or mesne before he be distrained. Se- 
 cond, a warrantia chartce, before he be im- 
 pleaded, l^hird, a monstraverunt, before 
 any distress or vexation. Fourth, an audita 
 querela, before any execution sued. Fifth, 
 a curia claudenda, before any default of en- 
 closure. Sixth, a ne injuste vexes, before any 
 distress or molestation. And these are called 
 hrevia anticipantia, writs of prevention." 
 Co. Litt. 100. And see 7 Bro. P. C. ] 25. 
 
 These writs are generally obsolete. In chan- 
 cery, when it is contemplated to prevent an 
 expected injury, a bill quia timet is filed. See 
 Bill Quia Timet. 
 
 QUIBBLE. A slight difficulty raised 
 without necessity or propriety ; a cavil. 
 
 No justly eminent member of the bar will re- 
 sort to a quibble in his argument. It is con- 
 trary to his oath, which is to be true to the court 
 as well as to the client ; and bad policy, because 
 by resorting to it he will lose bis character as a 
 man of probity. 
 
 QUICK WITH CHILD. See Quicken- 
 
 IKG. 
 
 QUICKENING. In Medical Jnrispiu- 
 
 dence. The sensation a mother has of the 
 motion of the child she has conceived. 
 
 The period when quickening is first expe- 
 rienced varies from the tenth to the twenty- 
 fifth, but is usually about the sixteenth week 
 from conception ; Denman, Midw. p. 129. 
 
 It was formerly supposed that either the 
 child was not alive until the time of quicken- 
 ing, or that it had acquired some new kind 
 of existence that it did not possess before : 
 hence the presumption of law that dates the 
 life of the child from that time. 
 
 The child is, in truth, alive from the first 
 moment of conception, and, according to its 
 age and state of development, has different 
 modes of manifesting its life, and, during a 
 portion of the period of gestation, by its mo- 
 tion. By the growth of the embryo, the 
 womb is enlarged until it becomes of too great 
 a size to he contained in the. pelvis, it then 
 rises to the abdomen, when the motion of the 
 fetus is for the first time felt. See 1 Leg. 
 Gaz. Rep. (Pa.) 188. 
 
 Quickening as indicating a distinct point in 
 the existence of the foetus, has no foundation 
 m physiology ; for it arises merely from the 
 relation which the organs of gestation bear 
 to the parts that surround them : it may take 
 place early or late, according to the condition 
 TOL. II.— 32 
 
 of these different parts, but not from any in- 
 herent vitality for the first time manifested by 
 the foetus. 
 
 As life, by law, is said to commence when 
 a woman first becomes quick with child, so 
 procuring an abortion after that period is a 
 misdemeanor. Before this time, formerly 
 the law did not interfere to prevent a preg- 
 nant woman convicted of a capital offence 
 from being executed; 2 Hale, PI. Cr. 413. 
 If, however, the humanity of the law of the 
 present day would not allow a woman to be 
 executed who is, as Blackstone terms it, 
 priviment enceinte. Com. 129, t. e. pregnant, 
 although not quick, it would be but carrying 
 out the same desire to interfere with long- 
 established rules, to hold that the penalty for 
 procuring abortion should also extend to the 
 whole period of pregnancy. 
 
 "Quick with child is having conceived; 
 with quick child is where the child has quick- 
 ened." 8 C. & P. 265; approved in 1 Leg. 
 Gaz. Rep. (Pa.) 183 ; 2 Whar. & St. Med. 
 Jur. 1230. See 26 Am. Dec. 60, n. 
 
 QUID PRO QUO (Lat. what for what). 
 A term denoting the consideration of a contract. 
 See Co. Litt. 47 6; 7 M. & G. 998. 
 
 QUID AM (Lat. some one ; somebody). 
 In French lia'W. A term used to express 
 an unknown person, or one who cannot be 
 named. 
 
 A quidam is usually described by the fea- 
 tures of his face, the color of his hair, his 
 height, his clothing, and the like, in any pro- 
 cess which may be issued against him. Merlin, 
 Ripert.; Bncyclopfidie. 
 
 QUIET ENJOYMENT. The name of 
 a covenant in a lease, by which the lessor 
 agrees that the lessee shall peaceably enjoy 
 the premises leased. This covenant goes to 
 the possession, and not to the title ; 3 Johns. 
 471 ; 6 id. 120; 2 Dev. 388 ; 3 id. 200. A 
 covenant for quiet enjoyment does not extend 
 as far as a covenant of warranty ; 1 Aik. 233. 
 
 The covenant for quiet enjoyment is broken 
 only by an entry, or lawful expulsion from, 
 or some actual disturbance in, the possession ; 
 
 3 Johns. 471 ; 8 id. 198 ; 15 id. 483 ; 7 
 "Wend. 281 ; 2 Hill, N. Y. 105 ; 9 Mete. 63 ; 
 
 4 Whart. 86 ; 4 Cow. 340. But the tortious 
 entry of the covenantor, without title, is a 
 breach of the covenant for quiet enjoyment ; 
 7 Johns. 376. 
 
 QUIETUS (Lat. freed or acquitted). 
 In English LaTv. A discharge ; an acquit- 
 tance. 
 
 An instrument by the clerk of the pipe 
 and auditors in the exchequer, as proof of 
 their acquittance or discharge of accountants. 
 Cowel. 
 
 Discharge of a judge or attorney-general. 
 3 Mod. 99*. 
 
 In American La'W. The discharge of an 
 executor by the probate court. 4 Mas. 131. 
 
 QUINTO EXACTUS (Lat.). In Old 
 English Law. The fifth call or last requisi- 
 tion of a defendant sued to outlawry. 
 
QUIT-CLAIM 
 
 498 
 
 QUO WARRANTO 
 
 QUIT-CLAIM. In Conveyancing. A 
 
 form of deed of the nature of a release con- 
 taining words of grant as well as release. 2 
 Washb. R. P. 606. 
 
 The term is in constant and general use in 
 American law to denote a deed substantially 
 the same as a release in English law. It pre- 
 supposes a previous or precedent conveyance 
 or a subsisting estate and possession ; Thornt. 
 Conv. 44. It is a conveyance at common law, 
 but differs from a release in that it is regarded 
 as an original conveyance in American law, 
 at least in some states ; 6 Pick. 499 ; 3 Conn. 
 398; 9 Ohio, 96; 5 111. 117 ; Me. Rev. Stat. 
 c. 73, § 14 ; Miss. Code 1857, p. 309, art. 17. 
 The operative words are remise, release, and 
 forever quit-claim ; Thornt. Conv. 44. Cove- 
 nants of warranty against incumbrances by 
 the grantor are usually added. See a full 
 article in 12 Cent. L. J. 127. 
 
 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 Bla. Com. 42. 
 
 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 re- 
 served 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 in- 
 tended. 5 Call. 364. A perpetual rent re- 
 served on a conveyance in fee-simple is some- 
 times known by the name of quit-rent in 
 Massachusetts. See Gkound-Rent ; Rent. 
 
 QUO ANIMO (Lat. with what intention) . 
 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 re- 
 lating to the original defamation. 19 Wend. 
 296. 
 
 QUO JURE, WRIT OP. In English 
 Law. The name of writ commanding the 
 defendant to show hy what right he demands 
 common of pasture in the land of the com- 
 plainant who claims to have a fee in the same. 
 Eitzh. N. B. 299. 
 
 QUO MINUS (Lat.). 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 sug- 
 gests 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. 8 Bla. 
 Com. -46. 
 
 QUO WARRANTO (Lat. by what au- 
 thority). In Practice. The name of a writ 
 (and also of the whole pleading) by which 
 the government commences an action to re- 
 cover an office or franchise from the person 
 or corporation in possession of it. 
 
 The writ commands the sheriff to BummoutliB 
 defendant to appear before the court to whirh iJ 
 is returnable, to show {quo warranto) bvwC 
 authority he claims the office or francliise if 
 is a writ of right, a civil remedy to try th« 
 mere nght to the franchise or office, where the 
 person in possession never had a right toitm 
 
 262 263^''^'* " ^^ °^^'^'*' ^ ^''"'' ' ^^'*- Com. 
 
 The action otquo warranto was prescribed hv 
 theStatuteofGlo8ter,6Edw.I., and k^^C 
 tion upon the royal prerogative. Before this stat- 
 ute, theking, by virtue of his prerogative sent 
 commissions over the kingdom to inquire into the 
 right to all franchises, quo jure et quore nomine 
 Uli retinent, etc.; and, as they were grants from 
 the crown, if those in possession of them could 
 not show a charter, the franchises weie seized 
 into the king's hands without any judicial pro- 
 ceeding. Like all other original civil writs the 
 writ of quo warranto issued out of chanceryl and 
 was returnable alternatively before the king's 
 bench or justices in eyre ; Co. 2d Inst. 277, m • 
 3 Term, 549. ' 
 
 The writ of quo warranto has given place to an 
 information in t?ie nature of quo warranto. This 
 though in form a criminal ; see 14 Fla. 256 ; is 
 in substance a civil, proceeding, to try the mere 
 right to the franchise or office ; 3 Bla. Com. 263 ■ 
 1 S. & R. 382; Ang. & A. Corp. 469; 3 Kent! 
 312; 3 Term, 199 ; 23 Wend. 537, 591 ; but see 
 13 111. 66. 
 
 If the proceedings refer to the usurpation 
 of the franchises of a municipal corporation, 
 the right to file the information is in the state, 
 at the discretion of the attorney-general ; 14 
 Fla. 256; not of citizens; id. see 20 Penn. 
 518. Individuals cannot take proceedingsto 
 dissolve a corporation; 16 S. & R. 144; but 
 in regard to the election of a corporate officer, 
 the writ may issue at the suit of the attorney- 
 general or of any person interested ; 1 Zab. 9 ; 
 20 Penn. 415 ; but a private citizen must 
 have some interest ; 50 Mo. 97. The attor- 
 ney-general may act without leave of court; 
 83 Penn. 105; 38 N. J. L. 282; 12 Fla. 
 190 ; but a private relator may not; 15 S. & 
 R. 127; 8. C. 16 Am. Dec. 531; and the 
 court will use its discretion in granting the 
 writ; 70 LI. 25; 2 Johns. 184. Leave is 
 granted on a petition or motion with affida- 
 vits, upon which a rule to show cause is 
 granted ; 70 111. 25. The writ lies against the 
 corporate body, if it is to restrain a usurpa- 
 tion ; 60 Mo. 56 ; or enforce a forfeiture ; 67 
 N. H. 498; but if it is to inquire whether a 
 corporation has been legally organized, the 
 writ lies against the individuals; 15 Wend. 
 113; B.C. 30 Am. Dec. 34. 
 
 In New York a statutory action in the nature 
 of a quo warranto, has been substituted. Code 
 Civ. Proc. § 1983. This ie a civil writ of legal, 
 not equitable cognizance ; 52 N. T. 576. So iu 
 other states it is subject to the rules strictly a^ 
 plicable to civil proceedings; 50 Ala. 568; 44 
 Mo. 154 ; Boone, Corp. § 161. The terms quo 
 warranto" and " information in the natmre of 
 a quo warranto" are synonymous; 34 Wise. 
 197 ; contra, 25 Mo. 555 ; 26 Ark. 281. 
 
 Although quo warranto proceedings will lie 
 against a municipal corporation in this coun- 
 try, yet they are seldom employed. See» 
 case in 32 Vt. 50 ; and see 66 Mo. 328. They 
 
QUO WARRANTO 
 
 499 
 
 QUO WARRANTO 
 
 Tiill lie against members of a city council 
 70 Penn. 465; 80 N. Y. 117; contra, 47 
 Cal. 624 ; 20 Kans. 692 ; a county treasurer, 
 15 iu. 617 ; a sheriff'; 5 Mich. 146 ; 83 Penn. 
 105; a lieutenant-governor ; 12 Fla. 265; a 
 governor; 4 Wise. 567 ; a judge of probate ; 
 77 N. C. 18; a mayor; 55 N. Y. 525; an 
 elector of president of the United States, 
 proceedings being taken in the name of the 
 United States ; 8 S. C. 400 ; a major-general 
 of militia'; 5 R. I. 1 ; so of other militia of- 
 ficers ; 26 Penn. 31 ; 2 Green, Law, 84. 
 There must first be a user of the office ; 83 
 111.128; but taking the oath; id.\ or exer- 
 cising its functions without taking the oath ; 
 52 Miss. 665 ; is enough. 
 
 Pleadings in quo warranto are anomalous. 
 In ordinary legal proceedings, the plaintiff, 
 whether he be the state or a person, is bound 
 to show a case against the defendant. But 
 in an information of quo warranto, as well as 
 in the writ for which it is substituted, the or- 
 der is reversed. The state is not bound to 
 show any thing, but the defendant is bound 
 to show that he has a right to the franchise 
 or office in question ; and if he fail to show 
 authority, judgment must be given against 
 him; 4 Burr. 2146, 2127 ; Ang. & A. Corp. 
 636. To the writ of quo warranto the de- 
 fendant simply pleaded his charter, which was 
 a full answer to the writ ; just as before the 
 statute of Edward I. the production of the 
 charter to the king's commissioners was full 
 authority for the possession of the franchise 
 or office. But to an information of quo 
 warranto the plea of the defendant consists 
 of his charter, with an absque hoc denying 
 that he usurped the franchise, and concludes 
 with a verification. The plea is in form a 
 special traverse, but in substance it is not 
 such. The information was originally a 
 criminal proceeding, to punish the usurpa- 
 tion of the franchise by a fine, as 'well as to 
 seize the franchise ; therefore the information 
 charged usurpation, and the defendant was 
 compelled to deny the usurpation, as well as 
 to show his charter, which he did in the form 
 of an absque hoc to his plea. But when the 
 proceeding ceased to be criminal, and, like 
 the writ of quo warranto, was applied to the 
 mere purpose of trying the civil right to the 
 franchise, the absque hoc denying the usur- 
 pation became immaterial, though it is still 
 retained in the forms;. 5 Jacob, Law Diet. 
 374; 4 'Cow. 106, note. In Coke's Entries, 
 351 ; there is a plea to an information of quo 
 warranto without the absque hoc. The abs- 
 quehoc, being immaterial, should not be an- 
 swered by the replication, as it must always be 
 in a special traverse ; but the charter, in the 
 first part of the plea, though occupying 
 the place of an inducement, must be denied 
 by the replication, its existence and character 
 being the sole question in controversy upon 
 which the legality of the acts of thecorporadon 
 turns; Gilb. Ev. 6-8, 145 ; 10 Mod. Ill, 296. 
 Until the statute 32 Geo. III. c. 58, the 
 defendant could not plead double in an in- 
 
 formation of quo warranto to forfeit an office 
 or franchise ; 1 P. Wms. 220 ; 4 Burr. 2146, 
 n. ; 1 Chitty, PI. 479 ; 5 Bacon, Abr. 449 ; 
 4 Cow. 113, n. ; 2 Dutch. 215. 
 
 In information of quo warrantOf there are 
 two forms of judgment. When it is against 
 an officer or against individuals, the judgment 
 is ouster ; but when it is against a corpora- 
 tion by its corporate name, the judgment was 
 ouster and seizure. In the first case, there 
 being no franchise forfeited, there is none to 
 seize ; in the last case, there is ; consequently 
 the franchise is seized; 2 Kent, 312, and 
 note; 2 Term, 521, 550. Now, judgment is 
 ouster and dissolution; 15 Wend. 113 ; s. c. 
 30 Am. Dec. 34 ; but there may be a judg- 
 ment of ouster of a particular franchise, and 
 not of the whole charter ; 15 Wend. 113. See, 
 as to the judgment, 32 Vt. 50 ; 4 Cow. 120. 
 By such judgment of ouster and seizure the 
 franchises are not destroyed, but exist in the 
 hands of the state ; but the corporation was de- 
 stroyed, and ceased to be the owner or pos- 
 sessor of lands or goods, or rights or credits. 
 The lands reverted to the grantor and his heirs, 
 and the goods escheated to the state. But, 
 later, it has been held that the judgment must 
 be confined to seizure of the franchises : if it 
 be extended to seizure of the property, so far 
 it is erroneous ; 1 Blackf. 267. See Scire 
 Facias ; 30 Barb. 588. 
 
 The principle of forfeiture is that the fran- 
 chise is a trust ; and all the terms of the char- 
 ter are conditions of the trust; and if any 
 one of the conditions of the trust be violated, 
 it will work a forfeiture of the charter. And 
 the corporate powers must be construed 
 strictly, and must be exercised in the manner 
 and in the forms and by the agents prescribed 
 in the charter ; 2 Kent, 298, 299 ; 1 Bla. Com. 
 485; 13 Viner, Abr. 511 ; 13 Pet. 587; 6 
 Wend. 211 ; 2 Term, 546 ; 4 Gill & J. 121. 
 Cases of forfeiture may be divided into 
 two great classes. Cases of perversion : as, 
 where a corporation does an act inconsistent 
 with the nature and destructive of the ends 
 and purposes of the grant. In such cases, 
 unless the perversion is such as to amount to 
 an injury to the public who are interested in 
 the franchise ; 34 Penn. 283 ; it will not 
 work a forfeiture. Cases of usurpation : as, 
 where a corporation exercises a power which 
 it has no right to exercise. In such cases the 
 cause of forfeiture is not determined by any 
 question of injury to the public, but the abuse 
 which will work a forfeiture need not be of 
 any particular measure or extent ; 3 Term, 
 216, 246; 23 Wend. 242; 34 Miss. 688; 21 
 111. 65. See 30 Ala. N. s. 66. In case of 
 usurpation of an office or franchise by an in- 
 dividual, it must be of a public nature to be 
 reached by this writ ; 21 111. 65 ; 28 Vt. 594, 
 714 ; 9 Cush. 596. 
 
 In England, corporations are the creatures 
 of the crown, and on dissolution their fran- 
 chises revert to the crown ; and they may be 
 re-granted by the crown either to the old, or to 
 the new, or to the old and new, corporators ; 
 
QUOAD HOC 
 
 500 
 
 QUORUM 
 
 and such grant restores the old rights, even to 
 sue on a bond given to the old corporation, and 
 the corporation is restored to the full enjoy- 
 ment of its ancient liberties ; and if it were 
 a corporation by prescription it would still be 
 so ; 2 Tertn, 624, 543 ; 3 id. 241. In the 
 United States, corporations are the creatures 
 of the legislature, and on dissolution their 
 franchises revert to the state ; and the legis- 
 lature can exercise the same powers by legis- 
 lation over the franchises, and with the same 
 effects, as the crown can in England ; Ang; & 
 A. Corp. 652. 
 
 By the statute of Anne, c. 20, an informa- 
 tion in the nature of quo warranto may by 
 leave of court be applied to disputes between 
 party and party about the right to a corporate 
 office or franchise ; 4 Zabr. 529 ; 1 Dutch. 
 354 ; 32 Penn. 478 ; 33 Miss. 508 ; 7 Cal. 
 893, 432. And the person at whose instance 
 the proceeding is instituted is called the rela- 
 tor; 3 Bla. Com. 264. The court will not 
 give leave to private informers to use the 
 king's name and suit to call in question the 
 validity of a franchise, when such persons 
 apply under very unfavorable circumstances ; 
 4 Burr. 2123. As to where the burden falls 
 of showing the lawful or unlawful character of 
 a franchise or right, see 28 Penn. 383 ; 5 
 Mich. 146. The information, it is said, may 
 be filed, after the expiration of the term of 
 office; 2 Jones, No. C. 124; but see High, 
 Extr. Leg. Rem. § 633. 
 
 SeeHigh,Extr. Leg. Rem.; 30 Am. Dec. 33 
 and full note, Boone, Corp.; Ang. & A. Corp. 
 
 QUOAD HOC (Lat. as to this ; with re- 
 spect to this). A term frequently used to 
 signify, as to the thing named, the law is so 
 and so. 
 
 QUOD COMPUTET (Lat. that he ac- 
 count). The name of an interlocutory judg- 
 ment 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, ^t 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. § 
 548. See Judgment Quod Computet ; 
 
 ACCOUKT. 
 
 QUOD CUM (Lat.). In Pleading. For 
 
 that whereas. A form of introducing matter 
 of inducement in those actions in which in- 
 troductory matter is allowed to explain the 
 nature of the claim : as, assumpsit and case. 
 Hardr, 1 ; 2 Show. 180. 
 
 This form is not allowable to introduce the 
 matter which constitutes the gravamen of the 
 charge, as such matter must be stated by posi- 
 tive averment, while guod cum introduces 
 the matter which depends upon it by way of 
 recital merely. Hence in those actions, as 
 
 trespass lii et armis, in which the complaint ij 
 stated without matter of inducement, quod cum 
 cannot be properly used ; 2 Bulstr. 214. But 
 its improper use is cured by verdict ; 1 P. A 
 Browne, 68 ; Coinyns, Dig. Pleader (C 86)! 
 
 QUOb EI DEPORCEAT (Lat.). in 
 English Law. The name of a writ given by 
 Stat. Westm. 2, 13 Edw. I. c. 4, to the ownen 
 of a particular estate, as for life, in dower, by 
 the curtesy, or in fee-tail, who are barred of 
 the right of possession by a recovery had 
 against them through their default or non- 
 appearance in a possessory action ; by which 
 the right was restored to him who had been 
 thus unwarily deforced by his own default. 3 
 Bla. Com. 193. 
 
 QUOD PERMITTAT (Lat.). In Eng. 
 lish Law. That he permit. The name of a 
 writ which lies for the heir of him who is 
 disseised of his common of pastnrfi, against 
 the heir of the disseisor, he being dead. 
 Termes de la Ley. 
 
 QUOD PERMITTAT PROSTER. 
 NERE (Lat. that he give leave to demolish). 
 In English Law. The name of a writ which 
 commands the defendant to permit the plain- 
 tiff to abate the nuisance of which complaint 
 is made, or otherwise to appear in court and 
 to show cause why he will not. On proof Of 
 the facts, the plaintiff is entitled to have judg- 
 ment to abate the nuisance and to recover 
 damages. This proceeding, on account of its 
 tediousness and expense, has given way to ii 
 special action on the case. 
 
 QUOD PROSTRAVIT (l!at.). The name 
 of a judgment upon an indictment for a nui- 
 sance, that the defendant abate such nuisance. 
 
 QUOD RECUPERET. See Jcdgmekt 
 Quod Recupeket. 
 
 QUORUM. Used substantively, quorum 
 signifies the number of persons belonging to 
 a legislative assembly, a corporation, society, 
 or other body, required to transact business. 
 There is a difference between an act done hy 
 a definite number of persons, and one per- 
 formed by an indefinite number ; in the first 
 case a majority is required to constitute a 
 quorum, unless the law expressly^ directs that 
 another number may make one ; in the latter 
 case any number who may be present may 
 act, the majority of those present having, as 
 in other cases, the right to act ; 7 Cow. 402 ; 
 9 B. & C. 856 ; 34 Vt. 316 ; 27 Miss. 517. 
 
 Where articles of association did rot pre- 
 scribe the number of du-ectors necessary fora 
 quorum, it was held that the number who 
 usually transacted the business constituted a 
 quorum ; L. R. 4 Eq. 233. A single share- 
 holder was held not to constitute a meetttgi 
 2 Q. B. Div. 26. A majority of a board ol 
 directors is a quorum, and a majority of such 
 quorum can act; 19 N. J. Eq. 402; so ot a 
 board of selectmen of a town ; Maine Um 
 (1880), 225. 
 
 Sometimes the law requires a greater num- 
 ber than a bare majority to form a quorum. 
 
QUOT 
 
 601 
 
 RAILROAD 
 
 In such case no quorum is present until such 
 a number convene. 
 
 When an authority is confided to several 
 persons for a private purpose, all must join 
 in the act, unless otherwise authorized; 6 
 Johns. 38; 17 Abb. Pr. 201 ; otherwise if 
 the trust is a continuous public duty; 17 
 Abb. Pr. 201. See Authority ; Majority; 
 Plukauty; Meeting. 
 
 QUOT. In Scotch Law. The twentieth 
 part of the movables, computed without com- 
 putation of debts, was so called. 
 
 Formerly the bishop was entitled, in all 
 confirmations, to the quot of the testament. 
 Erskine, Inst. 3. 9. 11. 
 
 QUOTA. That part which each one is to 
 bear of some expense : as, his quota of this 
 debt ; that is, his proportion of such debt. 
 
 QUOTATION. In Practice. The alle- 
 gation of some authority or case, or passage 
 of .some law, in support of a position which 
 it is desired to estabhsh. 
 
 The transcript of a part of a book or writ- 
 ing from a book or paper into another. 
 
 If the quotation is fair, and not so extensive 
 as to extract the whole value or the most valu- 
 able part of an author, it will not be a viola- 
 
 tion of the copyright. It is mostly difficult to 
 define what is a fair quotation. When the 
 quotation is unfair, an injunction will lie to 
 restrain the publication! See 17 Ves. 424; 1 
 Bell, Com. 121. 
 
 " That part of a work of one author found 
 in another," observed Lord Ellenborough, 
 "is not of itself piracy, or sufficient to sup- 
 port an action ; a man may adopt part of the 
 work of another; he may so make use of 
 another's labors for the promotion of science 
 and the benefit of the public." 1 Camp. 94. 
 See Curtis, Copyr. 242 ; 3 Myl. & C. 737 ; 
 17 Ves. 422; 2 Stor. 100; 2 Beav. 6; Abridg- 
 ment ; Copyright. 
 
 QUOUSQUE. A Latin adverb, which 
 signifies how long, how far, until. 
 
 In old conveyances it is used as a word of 
 limitation ; 10 Co. 41. 
 
 In practice, it is the name of an execution 
 which is to have force until the defendant 
 shall do a certain thing. Of this kind is the 
 capias ad satisfaciendum, by virtue of which 
 the body of the defendant is taken into exe- 
 cution, and he is imprisoned until he shall 
 satisfy the execution ; 3 Bouvier, Inst. n. 
 3371. 
 
 R. 
 
 RACHBTTTM (Fr. racheter, to redeem). 
 In Scotch LavT-. Ransom : corresponding 
 to Saxon weregild, a pecuniary composition 
 for an offence. Skene ; Jacob, Law Diet. 
 
 RACK. An engine with which to torture 
 a supposed criminal, in order to extort a con- 
 fession of his supposed crime and the names 
 of his supposed accomplices. 
 
 It is unknown in the United States, but, known 
 by the nickname of the Duke of Exeter's daugh- 
 ter, was in use in England. Barrington, Stat. 
 366; laS. &E. 327. 
 
 RACK RENT. In English Law. The 
 
 full extended value of land left by lease, paya- 
 ble by a tenant for life or years." Wood, Inst. 
 192. 
 
 RADOUR. In French Law. A term 
 mcluding the repairs made to a ship, and a 
 fresh supply of furniture and victuals, muni- 
 tions, and other provisions required for the 
 voyage. Pardessus, n. 602. 
 
 RAILROAD. A road graded and having 
 rails of iron or other material for the wheels 
 of railroad cars to run upon. 
 
 Railroads in their present form first began to 
 De extensively constructed after the successful 
 experiments in the use of locomotives in 1829. 
 They had been in use in a rude form as early as 
 1676. These earlier railroads were of limited ex- 
 
 tent, built by private persons on their own land 
 or upon the land of others, by special license, 
 called way-leave. In their modem form, rail- 
 roads are usually owned by a corporation ; 3 Col. 
 673 ; 18 Penn." 187 ; which is authorized to exer- 
 cise some important privileges, such as a right of 
 eminent domain, etc. But a private individual 
 may construct and work a railroad if he can ob- 
 tain a right of way by purchase ; 70 Penn. 310 ; 
 L. K. 4 H. L. 171; 30 Vt. 182. Within recent 
 years, another class of railroads, namely, those 
 laid in the streets of towns and cities, have be- 
 come very numerous. 
 
 As to a distinction between railroads and rail- 
 ways, see 89 Penn. 310. 
 
 The charter of a public railway requires 
 the grant of the supreme legislative authority 
 of the state ; 3 Engl. Railw. Cas. 65 ; 2 
 Railw. Cas. 177 ; 3 N. Y. 430. It is usually 
 conferred upon a private corporation, but 
 sometimes upon a public one, where the 
 stock is owned and the company controlled 
 by the state ; Redf. Railw. § 1 7 ; 1 Ohio St. 
 657 ; 21 Conn. 304 ; 10 Leigh, 454 ; 4 Wheat. 
 668; 8 Watts, 316. Such charter, when con- 
 ferred upon a private company or a natural 
 person, as it may be, is in the absence of con- 
 stitutional or statutory provisions to the con- 
 trary, irrevocable, and only subject to general 
 legislative control, the same as other persons 
 natural or artificial ; 4 Wheat. 668 ; 2 Kent, 
 
RAILROAD 
 
 602 
 
 RAILROAD 
 
 275 ; 27 Vt. 140 ; 11 La. An. 253 ; 2 Gr^, 
 1 ; 3 Sneed, 609 ; 26 Penn. 287 ; 32 N. H. 
 215. See infra. 
 
 The right of way is generally obtained by 
 the exercise of the right of eminent domain. 
 This can only be done in strict conformity to 
 the charter or grant ; 4 Engl. Railw. Cas. 
 235, 513, 524; 6 Gill, 363. Statute in Eng- 
 land ; 7 Hare, 264 ; and in this country, in 
 many cases, the provision of the charter ; 25 
 Vt. 49 ; enable companies to obtain land by 
 purchase. The company may enter upon 
 lands for the purpose of making preliminary 
 surveys, by legislative permission, without be- 
 coming trespassers, and without compensation; 
 34 Me. 247 ; 9 Barb. 449 ; Wright, Ohio, 
 132 ; but compensation must be made before 
 the permanent Occupation of the lands ; see 
 6 Biss. 168; 27 Ind. 260. See 47 Cal. 628. 
 
 A company may not take land for specula- 
 tion, or to prevent competition; 43 N. Y. 
 137; or to build a ear factory; 34 Vt. 484 ; 
 or dwelling houses for its employees ; id. ; 
 but it may take land for turn-outs, depots, 
 engine-houses, etc. ; 64 Penn. 103 ; 49 Mo. 
 165; repair shops; id. One company may 
 be authorized to condemn the property of an- 
 other company upon making compensation 
 therefor ; 121 Mass. 124 ; Peirce, Railr. Law, 
 162 ; even though the latter company was 
 chartered by the U. S. ; 8 Fed. Rep. 106, 
 702. A company may acquire by condemna- 
 tion water fronts and land through which 
 public streets run and land for reasonable 
 storehouses. They may thus acquire land by 
 way of a reasonable provision for future needs. 
 The fact that real estate was at the time of 
 condemnation very depressed will be con- 
 sidered in estimating damages ; 77 N. Y. 
 248. If the necessity exist and a reasonable 
 discretion has been exercised, courts will not 
 interfere ; id. 
 
 The company acquire only a right of way, 
 the fee remaining in the former owner. The 
 company can take nothing from the soil, ex- 
 cept for the purpose of construction ; 68 N. 
 Y. 1 ; 38 Iowa, 316 ; 59 Penn. 290; 60 Mo. 
 496 ; 2 Gray, 574 ; 26 Vt. 161 ; 2 D. & B. 
 467; 20 Barb. 644; 34 N. H. 282; 16 111. 
 198 ; 1 Sumn. 21. But in Vermont the title 
 is ordinarily the fee ; 42 Vt. 266 ; and it has 
 been held that companies may acquire the ab- 
 solute fee in land by purchase, and sell and 
 convey the same, when no longer needed ; 66 
 N. Y. 526.' 
 
 The mode of estimating compensation to 
 the land-owners varies in different states. 
 The more general mode is to award such a 
 sum as will fairly compensate the actual 
 loss, i. e. to give a sum of money which being 
 added to the land remaining will make it 
 as valuable as the whole would have been 
 if none of it had been taken; 13 Barb, 
 171 ; Redf. Railw. § 71 ; 9 Hun, 104. Re- 
 mote and indefinite damages should not be 
 considered ; 60 Me. 290 ; in general all in- 
 conveniences caused by embankments, excava- 
 tions, and_ obstruction to the free use of build- 
 ings, and inconveniences from the sounding of 
 
 whistles, ringing of bells, rattling of trains 
 jarring the ground, and from smoke, so far as 
 they severally arose from the use of the strip 
 of land taken, may be considered ; Boone 
 Corp. § 249 ; see 71 111. 361 ; 79 Penm447' 
 118 Mass. 646; 8 Nev. 165; 50 Cal. so! 
 The increased danger of fire to buildings 
 may be included in the damages ; 55 N. H. 
 413 ; s. c. 20 Am. Rep. 220 ; conira, 33 
 Penn. 426. And so of the expense of erect- 
 ing additional fences made necessary ; 74 N 
 C. 220; 1 Bush, 326. 
 
 The company may lay their road across a 
 highway, but not without making compensa- 
 tion to the owner of the fee for the additional 
 servitude thus imposed upon the land; 26 N 
 Y. 526 ; 76 111. 74 ; 41 Cal. 256 ; 1 Exch! 
 728 ; 21 Mo. 580 ; 27 Penn. 339 ; 9 Cush. 1. 
 
 The legislature may authorize a raihoad to 
 be constructed under, as well as upon, high- 
 ways ; and when so constructed, the rights of 
 the land-owners are determined upon the same 
 principles as if they were built upon the sur- 
 face; Peirce, Railr. 248; 42 Md. 117. It 
 may also authorize elevated railroads, or rail- 
 roads built upon structures raised above the 
 highway ; Peirce, Railr. 248. See 70 N. Y. 
 327, 361; 6 Blatch. 487; 43 N. Y. Sup.Ct.292; 
 82 N. Y. 95 ; 26 Alb. L. J. 406. The owner 
 of a house on a street in New York city may 
 recover for any injury received by him by 
 reason of the construction and operation of an 
 elevated railroad on the street in front of his 
 house; 19 Am. L. Reg. n. s. 376. The 
 superstructure, etc. of such a railroad is within 
 the terms "land," "real estate," used ina 
 statute with reference to taxation ; 83 N. Y. 
 459. 
 
 The construction of the road must be 
 within the prescribed limits of the charter. 
 The right of deviation secured by the char- 
 ter or general laws is lost when the road is 
 once located; iMyl. &K. 154; 2 Ohio St. 
 235 ; 31 N. J. L. 205. See 2 Rich. 434 ; 1 
 CI. & F. 262 ; 86 Penn. 468, 609 ; .S Mo. App. 
 315; 10 Conn. 157; 2 Swan, 282, 284; 1 
 Gray, 340. The location can then be changed 
 only by act of legislature ; 35 Barb. 878. Dis- 
 tance, having reference either to the length 
 of the line or to deviation, is to be measured 
 in a straight line through a horizontal plane ; 
 Redf. Railw. § 106 ; 9 Q. B. 76 ; 27 Vt. 766; 
 36 E. L. & E. 114. But charters must be 
 taken to allow such discretion in the location 
 of the route as is incident to an ordinary prac- 
 tical survey thereof, with reference to the ta- 
 ture of the country ; Boone, Corp. § 261 ; 6 
 Minn. 160. In crossing highways, pubhc 
 safety undoubtedly requires that it should not 
 be at grade, or, if so, that the crossing should 
 be protected by gates ; 20 Law Jour. 428. 
 Such is the common practice in England though 
 not in this country. 
 
 Injuries to domestic animals. A railway 
 company is not bound at common law *<> fe""f 
 its tracks or erect cattle guards ; 44 111. 76 ; 
 43 Miss. 279 ; but statutes have been passea 
 in some states requiring them to do so; L. K. 
 3 Q. B. 549; 81 N. Y. 190. In default ot 
 
KAILKOAD 
 
 503 
 
 KAILROAD 
 
 these precautions, if so required, they are 
 liable for injuries to animals, whether due to 
 the negligence of the company's servants or 
 not; 61 N. y. 353 ; 50 Mo. 78. In the ab- 
 sence of such statutes the company are not 
 liable for any injury to domestic animals stray- 
 ing upon their track, or while crossing it, in 
 the highway, unless they have been guilty of 
 some neglect in building fences or in the man- 
 agement of their trains ; 21 N. H. 363 ; 29 
 Me. 307 ; 6 Penn. 472 ; 6 Ind. 141 ; 4 Ohio 
 St. 424; 33 E. L. & E. 193 ; 25 Vt. 150. 
 
 Liability for the acts of contractors, sub- 
 contractors, and agents. The company are 
 not hable for the act of the contractor or sub- 
 contractor, or their agents, except in doing 
 precisely what is contemplated in the contract ; 
 6 M. & W. 499 ; 12 Ad. & E. 737 ; 24 Barb. 
 355; 3 Gray, 349; Kedf. Railw. § 168. 
 
 Railroad companies are liable for the acts of 
 their agents and sub-agents within the range 
 of their employment; and it has been the 
 purpose of the courts to give such agents a 
 large discretion, and hold the companies 
 liaole for all acts of their agents within the 
 most extensive range of their charter-powers ; 
 14 How. 483; 27 Vt. 110; 7 Gush. 385. 
 But the company are not liable for the wilful 
 acts of their agents, out of the range of their 
 employment, unless directed by the company 
 or subsequently adopted by them ; 2 Harr. 
 N. J. 514; 1 Pla. 136. See this subject fur- 
 therdiscussed in Redf. Railw. § 1 69, and notes. 
 The company are not liable for injuries to 
 servants through the neglect of their fellow- 
 servants or defects in machinery, unless they 
 were themselves in fault in employing incom- 
 petent servants or purchasing imperfect ma- 
 chinery for the road ; 3 M. & W. 1 ; 4 Mete. 
 Mass. 49; 6 Hill, N. Y. 592; 9 N. Y. 175. 
 See Master. 
 
 Railroad companies are liable for any in- 
 jury accruing to the person or property of 
 another through any want of reasonable care 
 and prudence on the part of their agents or 
 employees. This occurs from the omission 
 of the requisite signals at road-crossings, and 
 from want of care in other respects in cross- 
 ing highways ; 2 Gush. 539 ; 10 id. 562. See, 
 also, 28 Vt. 185 ; 18 Ga. 679 ; 8 Gray, 45. 
 It is the duty of the company to use on its 
 cars, etc., all the improvements in machinery 
 commonly used ; 65 Barb. 92 ; 76 N. G. 454. 
 The conduct of railway trains is so far matter 
 of science and skill that it is proper to receive 
 the testimony of experts in regard to it ; 23 
 Vt. 394, 395; 17 111. 509, 580. Railway 
 companies, like other corporations, cannot be 
 bound by any contract of their agents beyond 
 their charter-power, or, as it is called, ultra 
 vires, although assumed by their express direc- 
 tion or consent; 7 E. L. & E. 505; 16 id. 
 180; 30 tU 120. 
 
 Express business. They are bound, as com- 
 mon carriers, to allow express companies to do 
 business on their roads, and to provide such con- 
 veniences, by special cars or otherwise, as are 
 required for the safe and proper transportation 
 
 of express matter ; and they are bound to ex- 
 tend the use of such facilities on equal terms 
 to all who are engaged in the express business. 
 Railroad companies are entitled to fair com- 
 pensation for such services, which, in case of 
 a disagreement, will be fixed by the courts. 
 A railroad company cannot fix an absolute 
 rate of compensation therefor, and insist upon 
 being paid that rate in advance, or at the end 
 of each trip ; 10 Fed. Rep. 210 ; s. c. 14 
 Gh. L. N. 201 (U. S. G. C., Miller, G. J.). 
 
 Street railways. A street railway com- 
 pany owns the structure laid by it in the high- 
 way, and has a superior right to the space 
 covered by its track ; Peirce, Railr. 252 ; see 
 14 Gray, 69 : 76 N. Y. 530 ; 34 Iowa, 527. 
 The public, on foot or in carriages, may cross 
 its track, and travel on the spaces covered by 
 it, and even incidentally drive ordinary car- 
 riages on the rails. But a /person driving a 
 carriage on the track should leave it without 
 retarding the cars ; 76 N. Y. 530 ; 69 111. 
 388. Its rails cannot be u^ed by other com- 
 peting common carriers driving railway or 
 other carriages, without special legislative 
 authority; 72 N. Y. 330; 4 Stew. N. J. 
 525 ; 81 111. 523. A company may remove 
 snow from its track to another part of the 
 street, but in so doing, it must avoid unneces- 
 sary injury to the owners of property ; 50 
 Md. 73. See Peirce, Railr. 252-3. 
 
 A street railway company must exercise a 
 high degree of care towards its passengers ; 
 36 N. Y. 135 ; 62 111. 238 ; cars should come 
 to a full stop to enable passengers to alight ; 
 75 Penn. 83 ; and it is negligence to start the 
 car before a passenger has stepped ofi' or had 
 time to do so ; 61 N. Y. 621. See Street. 
 
 Constitutional questions. These have re- 
 ference chiefly to the inviolability of charter 
 rights under the United States constitution,, 
 and rest mainly upon the doctrines and prin- 
 ciples of the Dartmouth Gollege case, 4 
 Wheat. 518. The provision in the United 
 States constitution referred to is that prohi- 
 biting the several states from passing " any 
 law impairing the obligation of contracts." 
 
 A corporate charter is regarded as a legis- 
 lative grant of certain franchises and immu- 
 nities involving pecuniary value, and, conse- 
 quently, not revocable, or subject to legisla- 
 tive control in any other sense than as all 
 rights of property are liable to be affected 
 by general legislation ; 4 Wheat. 518 ; 27 
 Vt. 140; Redfield, Railw. § 231; see Po- 
 lice Powers. 
 
 The essential franchise of a private corpo- 
 ration, being private property, cannot be 
 taken for public use without adequate com- 
 pensation; 15 Vt. 745; 16 id. 476; 27 id. 
 140 ; 6 How. 507. 
 
 But to be thus inviolable it is essential that 
 the franchises in question shall be such as are 
 indispensable to the existence and just opera- 
 tion of the corporation, or else that they be 
 expressly secured to the corporation in its 
 charter ; 11 Pet. 420. 
 
 These exclusive grants are to be strictly 
 
RAIN-WATER 
 
 604 
 
 RAPE 
 
 construed in favor of the corporation, and 
 liberally expounded in favor of public rights 
 and interests ; 11 Pet. 420; 13 How. 71 ; 1 
 La. An. 253. 
 
 It makes no difference in regard to the 
 rights of the corporation that it may have re- 
 ceived large grants of land or other property 
 from the state or sovereignty conferring the 
 charter. Unless the stock is owned by the 
 state, or the appointment and control of the 
 principal offic'ers are retained by the state, so 
 as to create it a public corporation, its es- 
 sential franchises are inviolable to the same 
 extent as other private rights of a pecuniary 
 character, and its functions are equally inde- 
 pendent of legislative control as are thosfe of 
 any natural person ; 14 Miss. 699; 6 Penn. 
 86 ; 13 Ired. 75 ; 9 Mo. 507 ; 27 Miss. 517 : 
 13 B. Monr. 1 ; 4 Barb. 64. See, also, 18 
 How. 331, 380 ; Redf. Railw. § 232. 
 
 See Bonds ; Common Carriers ; Roll- 
 ing Stock ; Passengkks ; Punctuality ; 
 Ticket. 
 
 RAIN-WATER. The water which natu- 
 rally falls from the clouds. 
 
 Ho one has a right to build his house so as 
 to cause the rain-water to fall over his neigh- 
 bor's land ; 1 RoUe, Abr. 107 ; 1 Stra. 643 ; 
 Fortesc. 212 ; Bacon, Abr. Action on the 
 Case (F) ; 5 Co. 101 ; unless he has acquired 
 a right by a grant or prescription. 
 
 When theland remains in a state of nature, 
 said a learned writer, and by the natural de- 
 scent the rain-water would descend from the 
 superior estate over the lower, the latter is 
 necessarily subject to receive such water ; 1 
 Lois des Batimens, 15, 16. See 2 Rolle, 140. 
 
 RAISE. To create. A use may be raised ; 
 t. e. a use may be created. 1 Spence, Eq. 
 Jur. 449. 
 
 RANGE. A word used in the land-laws 
 of the United States to designate the order 
 of the location of public lands. In patents 
 from the United States to individuals for pub- 
 lic lands, they are described as being within a 
 certain range. 
 
 RANGER. A sworn officer of the forest 
 to inquire of trespasses, and to drive the 
 beasts of the forest out of the deforested 
 ground into the forest. Jacob, Law Diet. 
 
 RANK. The order or place in which 
 certain officers are placed in the army and 
 navy, in relation to others. 
 
 It is a maxim that officers of an inferior 
 rank are bound to obey all the lawful com- 
 mands of their superiors, and are justified for 
 such obedience. 
 
 Army and navy. In 1868, a retiring board 
 found a colonel incapacitated from the result 
 of wounds received in battle while command- 
 ing a division with the brevet rank of major- 
 general. He was thereupon retired by the 
 President, under the act of July 18, 1866, 
 with the full rank of major-general. Subse- 
 quently his retired rank was changed by the 
 character of the act of March 3, 1875, to that 
 
 of fcngadier-general. It was held that he 
 was not appointed to the office of maior 
 general; that he still retained on the retired 
 list the office of colonel ; that the rank con- 
 ferred upon him by act of congress was in no 
 sense a constitutional appointment to a new 
 b^ce; and that the same power that gave 
 him his rank could take it away. Rank is 
 often used to express something different from 
 office. It then becomes a designation or title 
 of honor, dignity, or distinction conferred 
 upon an officer in order to fix his relative 
 position in reference to other officers in mat- 
 ter of privilege, precedence, and sometimes 
 of command, or by which to determine his 
 pay and emoluments. This is the case with 
 the staff officers of the army. See K S 88 
 1122, 1128, 1131, 1168, for instances. ' 
 
 The distinction between rank and office 
 is more clearly apparent with reference to 
 staff officers than to officers of the line, be- 
 cause in the latter case the words used to de- 
 signate the rank and the office are usually the 
 same, while in the former case they are al- 
 ways different. 
 
 In some cases, officers of the line have a 
 rank assigned to them different from the title 
 of their office; see R. S. §§ 1096, 1097. Selec- 
 tions under these sections are usually made 
 from among officers whose rank is raised to a 
 higher degree by the service assigned to them, 
 but the new rank does not confer a new of- 
 fice. 
 
 In the army, all officers, except chaplains, 
 are paid according to their rank ; in the navy, 
 the pay of staff officers does not depend up- 
 on their rank ; and there rank onfy deter- 
 mines matter of precedence, etc., among offi- 
 cers. 
 
 Grade is a step or degree in either office or 
 rank. See 15 Ct. CI. 151, per Richardson, J., 
 from which the above is taken. 
 
 RANKING. In Scotch Law. Deter- 
 mining the order in which the debts of a 
 bankrupt ought to be paid. 
 
 RANSOM BILL. A contract, for pay- 
 ment of ransom of a captured vessel, with 
 stipulations of safe conduct if she pursue a 
 certain course and arrive at a certaiii time. 
 If found out of time or course, the safe-con- 
 duct is void ; Wheaton, Int. Law, 107. The 
 payment cannot be enforced in England, 
 during the war, by an action on the contract, 
 but can in this country; 1 Kent, 104, 106; 
 4 Wash. C. C. 141 ; 2 Gall. 325. 
 
 RAPE (Lat. rapere, to snatch, to seize 
 with violence). In Criminal Law. The 
 carnal knowledge of a woman by a man for- 
 cibly and unlawfully against her will. 
 
 The statute of Westminster 2, c. 34, de- 
 fines the crime, to be where "aman do ravish 
 a woman, married, maid, or other, where she 
 did not consent neither before nor after." 
 And this statute definition has been adopted 
 in several very recent cases. Addenda to 1 
 Den. Cr: Cas.; 1 Bell, Cr. Cas. 63, 71. 
 
 Much difficulty has arisen in defining the 
 
RAPE 
 
 505 
 
 RAPPORT A SUCCESSION 
 
 meaning of carnal knowledge, and different 
 opinions have been entertained, — some judges 
 having supposed that penetration alone is suf- 
 ficient, while others deemed emission an es- 
 sential ingredient in the crime; Hawk. PI. 
 Or. b. 1, c. 41, s. 3 ; 12 Co. 37 ; 1 Hale, PL 
 Cr. 638 ; 2 Chitty, Cr. Law, 810. But in mod- 
 ern times the better opinion seems to be that 
 both penetration and emission are not neces- 
 sary I 1 East, PI. Cr. 439 ; Add. Pa. 143 ; 3 
 Greenl. Ev. 8^410 ; 2 Bish. Cr. Law, § 1127 ; 
 contra, 14 Ohio, 222; but later cases in 
 that state intimated that if the question were 
 new, the decision would be the other way ; 
 22 Ohio St. 102, 541. See 65 N. C. 466. By 
 statute in England carnal knowledge is com- 
 pletely proved by proof of penetration. It is 
 to be remarked, also, that very slight evidence 
 may be sufficient to induce a jury to believe 
 there was emission ; Add. Pa. 143; 2 Const. 
 351 ; 1 Beck, Med. Jur. 140 ; 4 Chitty, Bla. 
 Com. 213, note 8. In Scotland, emission is 
 not requisite ; 1 Swint. 93. See Emission ; 
 Penetration. 
 
 By the term man in this definition is meant 
 a male of the human species, of the age of 
 fourteen years and upwards ; for an infant 
 under fourteen years is supposed by law in- 
 capable of committing this offence ; 1 Hale, 
 PL Cr. 631 ; 8 C. & P. 738. But this pre- 
 sumption has been held by some authorities 
 not to be conclusive, but capable of removal by 
 proof; 5 Lea, 352. But not only can an infant 
 under fourteen years, if of sufficient mischiev- 
 ous discretion, but even a woman may be guilty 
 as principal in the second degree. And the 
 husband of a woman may be a principal in 
 the second degree of a rape committed upon 
 his wife ; as, where he held her while his ser- 
 vant committed the rape ; 1 Hargr. St. Tr. 
 388. 
 
 The knowledge of the woman's person 
 must be forcibly and against her will ; and 
 if her consent has not been voluntarily and 
 freely given (when she has the power to con- 
 sent), the offence will be complete, nor will 
 any subsequent acquiescence on her part do 
 away the guilt of the ravisher. A consent 
 obtained from a woman by actual violence, 
 by duress or threats of murder, or by the 
 administration of stupefying drugs, is not 
 such a consent as will shield the offender or 
 turn his crime into adultery or fornication ; 
 and if the connection took place when she 
 was in a state of insensibility from liquor, 
 having been made drunk by the prisoner, 
 though the liquor was given only for the pur- 
 pose of exciting her, it is a rape ; 1 Den. Or. 
 Cas. 89; 1 C. & K. 746; 12 Cox, C. C. 311. 
 Having carnal knowledge of a woman by a 
 fraud which induces her to suppose it is her 
 husband, does not amount to a rape ; 8 C. & 
 P. 265, 286 ; 1 C. & K. 415. But there can 
 be no doubt that the party is liable in such 
 case to be indicted for an assault. 
 
 It has been decided that if a physician pro- 
 to take steps to cure a woman of dis- 
 
 ease, induces her to submit to sexual inter- 
 course with him, under the impression that it 
 is a necessary portion of her medical treat- 
 ment, this does not amount to rape. To con- 
 stitute rape there must be an actual resistance 
 of the will on the part of the woman ; 19 L. 
 J. M. C. 174; 1 Den. C. C. 580; 12 Am. 
 Rep. 283, n. ; s. c. 25 Mich. 356. Some 
 authorities have held that the woman's resist- 
 ance is not sufiicient to render the crime rape, 
 if finally she consent through fear, duress, or 
 fraud. It must appear that she showed the 
 utmost reluctance and resistance; 50 Wise. 
 518; s. c. 36 Am. Rep. 856 ; 59 N. Y. 374. 
 But this is not the general rule, the better 
 opinion being that a consent obtained by fear 
 of personal violence is no consent — and though 
 a man puts no hand on a woman, yet if, by 
 the array of physical force, he so overpowers 
 her mind that she dares not resist, he is guilty 
 of rape; 2Bish. Cr. L. § 1125 ; 36 Am. Rep. 
 860, n. ; s. c. 50 Wise. 518. 
 
 The matrimonial consent of the wife cannot 
 be retracted ; and, therefore, her husband 
 cannot be guilty of a rape on her, as his act 
 is not unlawful. But, as already observed, 
 he may be guilty as principal in the second 
 degree. 
 
 As a child under ten years of age is inca- 
 pable in law to give her consent, it follows 
 that the offence may be committed on such a 
 child whether she consent or not. See stat. 
 18 Eliz. C. 7, s. 4. 
 
 It has been questioned whether rape was 
 a felony at common law, or was made one by 
 a statute in the reign of Edward I. The 
 benefit of clergy was first taken away by a 
 statute of Elizabeth. By a statute of Vic- 
 toria, the offence is no longer punishable with 
 death, but, at most, with transportation for 
 life; previously to that statute, the capital 
 punishment was almost invariably enforced. 
 
 See, as to the possibility of committing a 
 rape, and as to the signs which indicate it, 1 
 Beck, Med. Jur. c. 12 ; Merlin, Repert. 
 Viol. ; Biessy, Manuel M6dico-L6gal, etc., 
 149 ; Parent-Duchatellet, De la Prostitution, 
 etc., c. 3, § 5 ; 9 C. & P. 752; 2 Pick. 380; 
 12 S. & R. 69 ; 7 Conn. 54. 
 
 In English TLa.'w. A division of a county 
 similar to a hundred, but oftentimes contain- 
 ing in it more hundreds than one. 
 
 RAPINE. In Criminal Law. The 
 
 felonious taking of another man's personal 
 property, openly and by violence, against his 
 will. The civilians define rapine to be the 
 taking with violence the movable property of 
 another, with the fraudulent intent to appro- 
 priate it to one's own use. Leg. El. Dr. Rom. 
 § 1071. 
 
 RAPPORT A SUCCESSION (Fr. ; 
 similar to hotchpot). In Louisiana. The 
 reunion to the mass of the succession of the 
 things given by the deceased ancestor to his 
 heir, in order that the whole may be divided 
 among the co-heirs. 
 
RASCAL 
 
 606 
 
 RAVISHED 
 
 The obligation to make the rapport has a 
 triple foundation. First, it is to be presumed 
 that the deceased intended, in making an ad- 
 vancement, to give only a portion of the in- 
 heritance. Second, it establishes the equality 
 of a division, at least, with regard to the chil- 
 dren of the same parent, who all have an equal 
 right to the succession. Third, it preserves 
 in families that harmony which is always dis- 
 turbed by unjust favors to one who has only 
 an pqual right. Dalloz, Diet. See Ad- 
 vanckmknt; Collation; Hocthpot. 
 
 RASCAL. An opprobrious term, applied 
 to persons of bad character. The law does 
 not presume that a damage has arisen because 
 the defendant has been called a rascal, and 
 therefore no general damages can be recov- 
 ered for it : if the party has received special 
 damages in consequence of being so called, he 
 can recover a recompense to indemnify him 
 for his loss. 
 
 RASTJRE. The scratching or scraping a 
 writing, so as to prevent some part of it from 
 being read. The word writing here is in- 
 tended to include printing. 
 
 RATE. A public valuation or assessment 
 of every man's estate ; or the ascertaininehow 
 much tax every one shall pay. See Pow. 
 Moptg.; 1 Hopk. Ch. 37. 
 
 RATE OF EXCHANGE. In Commer- 
 cial Law. The price at which a bill drawn 
 in one country upon another may be sold in 
 the former. 
 
 RATIFICATION. An agreement to 
 adopt an act performed by another for us. 
 
 Express ratifications are those made in ex- 
 press and direct terms of assent. Implied 
 ratifications are such as the law presumes from 
 the acts of the principal: as, if Peter buy 
 goods for James, and the latter, knowing the 
 fact, receive them and apply them to his own 
 use. 
 
 By ratifying a contract a man adopts the 
 agency altogether, as well what is detrimental 
 as what is for his benefit ; 2 Stra. 859 ; 7 
 East, 164; 16 Mart. La. 105; 1 Ves. 509; 
 Story, Ag. § 250 ; 9 B. & C. 59. 
 
 As a general rule, the principal has the 
 right to elect whether he will adopt the unau- 
 thorized act or not. But having once ratified 
 the act, upon a full knowledge of all the ma- 
 terial circumstances, the ratification cannot be 
 revoked or recalled, and the principal becomes 
 bound as if he had originally authorized the 
 act; Story, Ag. § 250; 3 Chitty, Com. Law, 
 197. 
 
 Where there has been actual and positive 
 fraud, or the adverse party has acted mala 
 fide, there can be no such thing as a confirm- 
 ation ; 8 W. & S. 86. The ratification of 
 the signing of a bond by an obligor whose 
 signature nas been forged, does not render 
 him liable thereon, there being no new con- 
 sideration ; 67 Penn. 391 ; s. c. 5 Am. Rep. 
 445, n.; 33 Ohio St. 405 ; s. C. 31 Am. Rep. 
 546, n. But if a contract be merely against 
 
 conscience, then if a party, being fully ,„. 
 formed of all the circumstances of it and ob- 
 jections to it, voluntarily confirms it, his ratifi 
 cation will stand ; 67 Penn. 217 ; 62 111 m'. 
 s. c. 14 Am. Rep. 106. A forged note can! 
 not be ratified ; L. R. 6 Ex. 49 ; 92 Penn 
 447 ; but see 4 Allen, 447. 
 
 The ratification of a lawful contract has a 
 retrospective effect, and binds the principal 
 from its date, and not only from the time of 
 the ratification, for the ratification is equiva- 
 lent to an original authority, according to 
 the maxim that omnis ratihabitio mandato 
 cequiparatur ; Pothier, Obi. n. 75 ; 2 Ld 
 Baym. 930; 6 Burr. 2727; 1 B. &P. sie- 
 13 Johns. 367 ; 2 Mass. 106. ' 
 
 Such ratification will, in general, relieve tie 
 agent from all responsibility on the contract 
 when he would otherwise have been liable ■ 
 2Br. &B. 452. See 16 Mass. 461; 8 Wend! 
 494. SeeAssPiNT; Ayliffe, Pand. *386 ; 18 
 Viner, Abr. 156; Story, Ag. § 239. 
 
 An infant is not, in general, Kable on his 
 contracts.; but if, after coming of age, he 
 ratify the contract by an actufl or express 
 declaration, he will be bound to perform: it, 
 as if it had been made after he attained; full 
 age. The ratification must be voluntary, de- 
 liberate, and intelligent, and the party must 
 know that without it he would not be bound; 
 3 Penn. 428 ; see 12 Conn. 551 ; 10 Mass. 
 137 ; 4 Wend. 403 ; and now in England must 
 be in writing. But a confirmation or ratifi- 
 cation of a contract may be implied from acts 
 of the infant after he becomes of age, as, by 
 enjoying or claiming a benefit under a contract 
 he might have wholly rescinded ; 1 Pick. 221 ; 
 and an infant partner will be liable for the 
 contracts of the firm, or at least such as were 
 known to him, if he, after becoming of age, 
 confirm the contract of partnership by trans- 
 acting business of the fom, receiving profits, 
 and the like ; 2 Hill, So. C. 479 ; 1 J. B. 
 Moore, 289. 
 
 RATIFICATION OP TREATIES. 
 
 See Treaty. 
 
 RATIHABITION. Confirmation; ap- 
 probation of a contract ; ratification. 
 
 RATIO (Lat.). A reason; a cause; a 
 reckoning of an account. 
 
 RATIONALIBUS DIVISIS, WHIT 
 DE. The name of a writ which lies properly 
 when two men have lands in several towns or 
 hamlets, so that the one is seized of the land 
 in one town or hamlet, and the other of the 
 other town or hamlet by himself, and they do 
 not know the bounds of the town or hamlet, 
 nor of their respective lands. This writ lies 
 by one against the other, and the object of it 
 is to fix the boundaries. Fitzh. Nat. B. 
 
 RAVISHED. In Pleadfaig. A tech- 
 nical word necessary in an indictment for 
 rape. . . 
 
 No other word or circumlocution wiU an- 
 swer. The defendant should be charged with 
 
KAVISHMENT 
 
 507 
 
 REAL COVENANT 
 
 having "feloniously ravished" the prosecu- 
 trix or -woman mentioned in the indictment ; 
 Bacon, Abr. Indictment (G 1); Comyns, Dig. 
 Indictment (G 6); Hawk. PI. Cr. 2, c. 25. s. 
 26; Cro. Car. ST, Co. Litt. 184, n. p; Co. 
 2d Inst. 180: 1 East, PI. Cr. 447. The 
 ■words "feloniously did ravish and carnally 
 know " imply that the act was done forcibly 
 and against the will of the woman ; 12 S. & 
 B. 70. See 3 Chitty, Cr. Law, 812. 
 
 RAVISHMENT. In Criminal Law. 
 
 An unlawful taking of a woman, or of an heir 
 in ward. Rape. 
 
 RAVISHMENT OP 'WARD. In 
 English LaTV. The marriage of an infant 
 ■ward without the consent of the guardian. 
 It is punishable by statute Westminster 2, 
 c. 35. 
 
 READING. The act of pronouncing 
 aloud, or of acquiring by actual inspection a 
 knowledge of, the contents of a writing or of 
 a printed document. 
 
 In order to enable a party to a contract, or 
 a devisor, to know what a paper contains, it 
 must be read, either by the party himself or 
 by some other person to him. When a per- 
 son signs or executes a paper, it will be pre- 
 sumed that it has been read to him ; 1 4 Penn. 
 496 ; 82 id. 203 J but this presumption may 
 be rebutted. 
 
 In the case of a blind testator, if it can be 
 proved that the will was not read to him, it 
 cannot be sustained ; 3 Wash. C. C. 580. 
 
 REAL. At Common Lavr. A term 
 which is applied to land in its most enlarged 
 signification. Real security, therefore, means 
 the security of mortgages or other incum- 
 brances affecting lauds ; 2 Atk. 806 ; S. C. 2 
 Tes. Sen. 547. 
 
 In Civil La^w. That which relates to a 
 iking, whether it be movable or immovable, 
 lands or goods: thus, a real injury is one 
 which is done to a thing, as a trespass to pro- 
 perty, whether it be real or personal in the 
 common-law sense. A real statute is one 
 which relates to a thing, in contradistinction 
 to such as relate to a person. 
 
 HEAL ACTION. In Practice. In the 
 Civil Law. One by which a person seeks 
 to recover his property which is in the posses- 
 sion of another. Dig. 50. 16. 16. It is to be 
 brought against the person who has posses- 
 sion. 
 
 At the Common Law. One brought for 
 the specific recovery of lands, tenements, or 
 hereditaments. Stephen, PI. 3. 
 
 They are droitural when they are based 
 upon the right of property, and possessory 
 when based upon the right of possession. 
 They are either virits of right ; ■writs of entry 
 upon disseisin (which lie in the per, the per et 
 cui, or the post), intrusion, or alienation ; writs 
 ancestral possessory, as mort d' ancestor, aiel, 
 besaiel, cossinage, or nuper obiit. Comyns, 
 Dig. Actions (D 2). 
 
 These actions were always local, and were 
 
 to be brought in the county where the land 
 lay ; Bracton, 189, 414. They are now pretty 
 generally laid aside in practice, upon account 
 of the great nicety required in their manage- 
 ment, and the inconvenient length of their 
 process, — a much more expeditious method of 
 trying titles being since introduced by other 
 actions, personal and mixed. See Stearns, 
 Booth, Keal Act. ; Bacon, Abr. Actions ; 
 Comyns, Dig. Actions; 3 Bla. Com. 118. 
 
 REAL CONTRACT. At Common La^w. 
 A contract respecting real property. 3 Hep. 
 22, a. 
 
 In Civil La^w. Those contracts which 
 require the interposition of a thing (res} as 
 the subject of them. 
 
 Contracts are divided into those which are 
 formed by the mere consent of the parties, 
 and therefore are called consensual, such as 
 sale, hiring, and mandate ; and those in which 
 it is necessary that there should be something 
 more than mere consent, such as the loan of 
 money, deposit or pledge, which, from their 
 nature, require the delivery of the thing; 
 whence they are called real. Pothier, Obi. 
 p. 1, c. 1, s. 1, art. 2. 
 
 REAL COVENANT. A covenant where- 
 by a man binds himself to pass a real thing, 
 as lands or tenements ; as a covenant to levy 
 a fine, etc. Shepp. Touchst. 161 ; Fitzh. N. 
 B. 145 ; Co. Litt. 384 ft. 
 
 A covenant, the obligation of which is so 
 connected with the realty that he who has the 
 latter is either entitled to the benefit of or 
 liable to perform the other. 2 Bla. Com. 
 304, Coleridge's note ; Stearns, Keal Act. 
 134 ; 4 Kent, 472. 
 
 A covenant by which the covenantor binds 
 his heirs. 2 Bla. Com. 304. 
 
 Very considerable confusion exists among the 
 authorities in the use of the term real covenants. 
 The definition of Blackstone which determines 
 the character of covenants from the insertion or 
 non-insertion of the word "heir" by the cove- 
 nantor, is pretty generally rejected. Of the 
 other definitions, that which makes a real cove- 
 nant an obligation to pass realty is the most an- 
 cient. The second definition is that now ordi- 
 narily understood when the term "real covenant" 
 is employed. The benefit of such covenants will 
 always run with the land and can be enforced by 
 any vendee, no matter how remote. The burden, 
 however, will not run with the land so as to be 
 capable of enforcement unless there be privity 
 either of contract or estate between the plaintiff 
 and the defendant ; Spencer's Case, 1 Sm. L. C. 
 115, These covenants are of various kinds. 
 Some are used in lieu of the ancient warranty. 
 Of these the most common are covenants of war- 
 ranty, both general and special, covenants of 
 seisin, that the vendor has a good right to convey, 
 for quiet enjoyment, for freedom from incum- 
 brances, and for further assurance. Vms. R. P. 
 447. In regard to all these, it may be said that 
 in England the right of action passes to and 
 vests in the party in whose time the substantial 
 breach occurs and who ultimately sustains in- 
 jury ; Rawle, Cov. 324. In the United States, 
 however, the covenants for seisin, for right to 
 convey, and against incumbrances are usually 
 construed to be broken as soon as made and can- 
 not enure to the advantage of subsequent gran- 
 
REAL LAW 
 
 508 
 
 REAL PROPERTY 
 
 tees. Covenants of warranty and for quiet en- 
 joyment are, however, prospective, and no breach 
 occurs until eviction, actual or constructive ; id. 
 313. See Covenant, and the various titles there- 
 under. 
 
 Other real covenants now in use are as fol- 
 lows : either to preserve the inheritance, as to 
 keep in repair; 9 B. & C. 505; 17 Wend. 
 148; 1 Dall. 210; 6 Yerg. 512; 6 Vt. 276; 
 38 E. L. & E. 462 ; to keep buildings insured, 
 and reinstate them if burned ; 5 B. & Aid. 1; 
 6 Gill & J. 372; to continue the relation of 
 landlord and tenant, as to pay rent ; 1 Uougl. 
 183; 2 Rawle, 159; 1 Wash. C. C. 376; to 
 do suit to the lessor's mill ; 5 Co. 18 ; 1 B. & 
 0.410; to grind the tenant's corn ; 2 Yeates, 
 74 ; for the renewal of leases ; Moor. 159 ; or 
 to protect the tenant in his enjoyment of the 
 premises, as to warrant and defend, never to 
 claim or assert title; 7 Me. 97 ; 3 Mete. 121; 
 to release suit and service ; Co. Litt. 384 b ; 
 to produce title-deeds in defence of the gran- 
 tee's title; Dig. tit. xxxii. c. 27, §99; 10 
 Law Mag. 353-357 ; 1 S. & S. 449 ; to sup- 
 ply water to the premises ; 4 B. Se Aid. 266 ; 
 to draw water ofif from a mill-pond ; 19 Pick. 
 449 ; not to establish another mill on the same 
 stream; 17 Wend. 136; not to erect buildings 
 on adjacent land; 4 Paige, Ch. 510; to use 
 the land in a specified manner ; 13 Sim. 228; 
 generally to create or preserve easements for 
 the benefit of the land granted ; 4 E. D. Sm. 
 122 ; 1 Bradf. 40. See 2 Greenl. Ev. § 240 ; 
 2 Washb. R. P. 648 ; Spencer's Case, 1 Sm. 
 L. C. 115. 
 
 REAL LAW. At Common Law. A 
 
 popular term used to denote such parts of the 
 system of common law as concern or relate to 
 real property. 
 
 In Civil La-w. A law which relates to 
 specific property, whether movable or im- 
 movable. 
 
 If real law in any given case relate to im- 
 movable property, it is limited in its operation 
 to the territory within which that property is 
 situate, real estate being, both by the common 
 and continental laws, subject exclusively to 
 the laws of the government within whose 
 territory it is situate ; Story, Confl. Laws, 426. 
 See Rei SiTjB. 
 
 REAL PROPERTY. Land, and gene- 
 rally whatever is erected or growing upon or 
 affixed to land, also rights issuing out of, an- 
 nexed to, and exercisable within or about the 
 same. Such property has the quality of pass- 
 ing on the death of the owner to the heir and 
 not the executor. It may either be corporeal 
 or incorporeal. 
 
 In respect to property, real and personal corre- 
 spond very nearly with immovables and movables 
 of the civil law. By the latter " blens " is a 
 general term for property ; and these are classi- 
 fied into movable and immovable, and the latter 
 are subdivided into corporeal and incorporeal. 
 Guyot, Eepert. Biens. 
 
 By immovables the civil law intended property 
 which could not be removed at all, or not without 
 destroying the same, together with such mova- 
 bles as are fixed to the freehold, or have been so 
 
 fixed and are intended to be again united with It 
 although at the time severed therefrom. Tavlm 
 Civ. Law, 475. -"jiur, 
 
 Real property includes also some thlnsB nnt 
 strictly land or rights exercised or encaled fn 
 reference thereto, such are offices and limiltiM 
 which are so classed because in ancient times 
 such titles were annexed to the ownershin of vi 
 rious lands ; Wms. K. P. 8. Corodles and annu. 
 ities are also sometimes classed as real proDertv 
 Shares of stock in railway and canal comDa^ 
 mes are in England real property unless made 
 personalty by act of parliament. In the United 
 States the better opinion is that they are per 
 sonalty Independent of statutory enactment" 
 Ang. & A. Corp. § 557; 3 Kent, 340 n. Some 
 interests in lands are regarded as personal prop, 
 erty, and are governed by the rules relating 
 thereto— such are terms of years of lands. Such 
 Interests are known as chattels real ; 2 Bla. Com. 
 386. 
 
 Though the term real, as applied to property, 
 in distinction from personal, is now so familiar 
 It is one of a somewhat recent introduction.' 
 While the feudal law prevailed, the terms In use 
 in its stead were lands, tenements, or heredita- 
 ments. These acquired the epithet of real from 
 the nature of the remedy applied by law for the 
 recovery of them, as distinguished from that pro- 
 vided in. case of injuries, contracts broken, and 
 the like. In the one case the claimant or de- 
 mandant recovered the real thing sued for,— the 
 land itself, — while, ordinarily, in the other he 
 could only recover recompense in the form of 
 pecuniary damages. 
 
 The term, it is said, as a means of desiginatlon, 
 did not' come into general use until after the feu- 
 dal system had lost its hold, nor till even as late 
 as the commencement of the seventeenth centuiy. 
 One of the earliest cases in which the courts ap- 
 plied the distinctive terms of real and pertoml 
 to estates, without any words of explanation, is 
 said to have been that of Wind vs. Jekyl, 1 P. 
 Wms. 575 ; Wms. E. P. 6, 7, note e. 
 
 Corporeal hereditaments comprise land and 
 whatever is erected or growing upon or affixed 
 thereto, including whatever is beneath or above 
 the surface, "usque ad or cum" as well as 
 " usque ad caelum ;" 2 Bla. Com. 17-19; Co. 
 Litt. 4 a. Houses, trees, growing crops, and 
 other articles fixed to the soil, though usually 
 classed as realty, may under certain circum- 
 stances and for certain purposes acquire tie 
 character of personalty. Thus if one erect a 
 building on the land of another with the lafc 
 ter's consent, it is the personal estate of the 
 builder and may be levied on by his creditors 
 as such ; 6 N. H. 555 ; 6 Me. 452 ; 8 Pick, 
 402. So if a nurseryman plant trees upon 
 land leased for the purpose of growing them 
 for the market, the trees are deemed per- 
 sonalty; 1 Mete. 27; 4 Taunt. 316. So 
 where the owner of land sells growing trees 
 (not on a nursery) to be cut hy the vendee, 
 tbey will be deemed to pass as personalty 
 where the contract gives no right to the ven- 
 dee to allow them to remain upon the land ; 
 4 Mete. Mass. 580; 9 B. & C. 561. But 
 where there is an understanding; express or 
 implied, that the trees may remain upon the 
 land and be cut at the pleasure of the vendee, 
 then the property in the trees is deemed real ; 
 4 Mass. 266 ; 7 N. H. 522. So crops, while 
 growing, planted by the owner of the land, 
 
REAL PROPERTY 
 
 809 
 
 REASONABLE TIME 
 
 are a part of the real estate ; but if sold by 
 him when fit for harvesting, they become per- 
 sonalty ; 5 B. & C. 829 ; and a sale of such 
 crops, though not fit for harvest, has been held 
 good as personalty ; 4 M. & W. 343 ; 2 Dana, 
 206; 2Rawle, 161. See Emblements. 
 
 There are a large number of articles known 
 as fixtures, which, though originally wholly 
 movable and personal in their nature, have ac- 
 quired, by having been affixed to real estate or 
 applied to use in connection with it, the char- 
 acter of realty. Such articles pass from the 
 vendor to the vendee of the land as realty ;' 2 
 Kent, 345; 2 Sm. L. C. 228 ; 20 Wend. 636 ; 
 even though they may be at the time tempo- 
 rarily disconnected. Such are keys to locks 
 fastened upon doors, mill stones and irons, 
 though taken out of the mill for repairing, 
 and window blinds, though temporarily re- 
 moved from the house ; 11 Co. 50; 2 W. & S. 
 116; 41 N. H. 505 ; 36 Barb. 483 ; 11 Iowa, 
 535. And the same rule applies between 
 toortg^or and mortgagee ; 19 Barb. 317; 4 
 Mete. Mass. 306 ; 3 Edw. Ch. 246 ; 3 Fost. 
 46. The same is the rule as between heir 
 and executor upon the death of the ancestor, 
 and between debtor and creditor upon a levy 
 made by the latter upon the land of the for- 
 mer; 10 Paige, Ch. 158; 7 Mass. 432; 30 
 Penn. 185. But many such fixtures as be- 
 tween landlord and tenant are personalty, and 
 may be removed by the latter as such, unless 
 left by him attached to the realty at the close 
 of his term, in which case they become a part 
 of the realty ; Smith, Land. & T. 264 ; 2 Pet. 
 137; 4 Gray, 256; 16 Vt. 124. And the 
 tenant is particularly favored in cases of 
 trade fixtures ; 1 Salk. 368; 4 Tyrwh. 121; 
 .20 John. 29; 7 Cow. 319. 
 
 Manure made upon a farm in the usual 
 manner by consumption of its products would 
 be a part of the real estate ; while if made 
 from products purchased and brought on to 
 the land by the tenant, as in case of a livery- 
 stable, it would be personal; 21 Pick. 367; 
 3 N. H. 503 ; 6 Me. 222 ; 2 N. Chipm. 115 ; 
 11 Conn. 525; 15 Wend. 169; SO N. H. 
 558. See Manure ; Fixtures. 
 
 Equity will, in many instances, for the sake 
 of enforcing and preserving the rights of par- 
 ties Interested, regard realty as converted in- 
 to personalty and personalty as converted 
 into realty, although no such change may 
 actually have taken place. So where realty 
 is devised by a testator to his executors with 
 imperative directions to sell, the devolution of 
 the property, even before actual conversion, 
 will be controlled by the rules relating to per- 
 sonalty; 1 Bro. C. C. 497; 3 Wheat. 563; 
 72 Penn. 417. So where money is directed to 
 be laid out in lands, it will be deemed realty for 
 purposes of descent even before the purchase ; 
 1 Bro. C. C. 503. But such direction must be 
 imperative, otherwise no such result ensues ; 
 8 Atk. 255 ; L. R. 7 Eq. 226 ; 10 Penn. 131. 
 So realty owned by a partnership will be 
 deemed personalty for the purposes of the part- 
 nership ; 3 Kent, 39 ; 81 Penn. 377 ; 1 Black, 
 
 346; 7 Conn. 11. See Partnership ; Con- 
 version ; Incorporeal Hereditaments. 
 REAL RIGHT. In Scotch Law. That 
 which entitles him who is vested with it to 
 possess the subject as his own, and, if in the 
 possession of another, to demand from him 
 its actual possession. 
 
 It is distinguished from a personal right, which 
 is that of action against a debtor, but without 
 any right In the subject which the debtor is ob- 
 liged to transfer to him. Seal rights affect the 
 subject itself ; personal are founded in obligation. 
 Erekine, Int. 479. 
 
 By analogy, the right which a claimant in 
 an action of replevin seeks to enforce at com- 
 mon law would be a real one, while the com- 
 pensation which a plaintifif seeks in an action 
 of assumpsit or of trover, being a pecuniary 
 one, would be personal. 
 
 REALM. A kingdom ; a country. 1 
 Taunt. 270; 4 Camp. 289; Rose, 387. 
 
 REALT?. A term sometimes used as a 
 collective noun for real property or estate — 
 more generally to imply that that of which it 
 is spoken is of the nature or character of real 
 property or estate. 
 
 REASON. That power by which we dis- 
 tinguish truth from falsehood and right from 
 wrong, and by which we are enabled to com- 
 bine means for the attainment of particular 
 ends. EncycIop6die ; Shelf. Lun. Introd. 
 xxvi. Ratio injure cequitas integra. 
 
 A man deprived of reason is not, in many 
 cases, criminally responsible for his acts, nor 
 can he enter into any contract. 
 
 Reason is called the soul of the law, for 
 when the reason ceases the law itself ceases. 
 Co. Litt. 97, 183; 1 Bla. Com. 70; 7 Toul- 
 lier, n. 566 ; Maxims, Cessante ratione, etc. 
 
 REASONABLE. Conformable or agree- 
 able to reason ; just ; rational. 
 
 An award must be reasonable ; for if it be 
 of things nugatory in themselves, and offer- 
 ing no advantage to either of the parties, it 
 cannot be enforced ; 3 Bouvier, Inst. n. 2096. 
 See Award. 
 
 REASONABLE ACT. This term sig- 
 nifies such an act as the law requires. When 
 an act is unnecessary, a party will not be re- 
 quired to perform it as a reasonable act ; 9 
 Price, 43 ; Yelv. 44 ; Piatt, Cov. 342, 157. 
 
 REASONABLE DOUBT. See Doubt ; 
 2 Green, Cr. Cas. 434; 10 Am. L. Rev. 642 ; 
 14 Cent. L. J. 446 ; 47 Ala. 78. 
 
 REASONABLE TIME. The English 
 law, which in this respect has been adopted 
 by us, frequently requires things to be done 
 within a reasonable time ; but what a reason- 
 able time is, it does not define : guam longum 
 debet esse rationabile tempus, non definitur in 
 lege, sedpendet ex discretionejusticiariorum ; 
 Co. Litt. 50. 
 
 The question of reasonable time is left to 
 be fixed by circumstances and the usages of 
 business. A bill of exchange must be pre- 
 sented within a reasonable time ; Chitty, Bills, 
 
REASSURANCE 
 
 510 
 
 RECAPTION 
 
 197-202. An abandonment must be made 
 ■within a reasonable time after advice received 
 of the loss ; Marsh. Ins. 589. 
 
 The commercial code of France fixes a 
 time in both these cases, which varies in pro- 
 portion to the distance. See Code de Com. 
 1. 1, t. 8, s. 1, § 10, art. 160; id. 1. 5, t. 10, 
 s. 3, art. 373. See Notice of Dishonor ; 
 Protest. 
 
 Where the facts are admitted or clearly 
 proved, what is a reasonable time is a ques- 
 tion of law for the court ; in cases where the 
 facts are controverted or doubtful, it is for 
 the jury to determine the facts, and the court 
 to apply the law in determining the question ; 
 Wells, Law & Fact, 135. 
 
 REASSURANCE. When an insurer is 
 desirous of lessening his liability, he may pro- 
 cure some other insurer to insure him from 
 loss for the insurance he has made: this is 
 called reassurance. 
 
 REBATE. In Mercantile Law. Dis- 
 count ; the abatement of interest in conse- 
 quence of prompt payment. 
 
 REBEL. A citizen or subject who un- 
 justly and unlawfully takes up arms against 
 the constituted authorities of the nation, to 
 deprive them of the supreme power, either 
 by resisting their lawful and constitutional or- 
 ders in some particular matter, or to impose 
 on them conditions. Vattel, Droit des Gens, 
 liv. 3, § 328. In another sense, it signifies a 
 refusal to obey a superior or the commands of 
 a court. 
 
 REBELLION. In Criminal Law. The 
 
 taking up arms traitorously against the gov- 
 ernment. The forcible opposition and resist- 
 ance to the laws and process lawfully issued. 
 
 If the rebellion amount to treason, it is 
 punished by the laws of the United States 
 with death. If it be a mere resistance of pro- 
 cess, it is generally punished by fine and im- 
 prisonment. See Dalloz, Diet.; Code Penal, 
 209. 
 
 When a rebellion has broken out in any 
 state, the rebel cruisers may be treated as 
 pirates by the established government, if the 
 rebel government has not been recognized as 
 belligerent by thrf parent state, or by foreign 
 nations ; but the right ceases to exist on the 
 recognition of the rebels as belligerents ; 2 
 Black, 273; 11 Wall. 268; Boyd's Wheat. 
 Int. Law, 169. 
 
 REBELLION, COMMISSION OP. 
 In Old Engllsli Practice. A writ issuing 
 out of chancery to compel the defendant to 
 appear. 
 
 REBOtTTER. To repel or bar. The 
 action of the heir by the warranty of his an- 
 cestor is called to rebut or repel. 
 
 REBUT. To contradict : to do away. 
 Thus, every homicide is presumed to be mur- 
 der, unless the contrary appears from evi- 
 dence which proves the death ; and this pre- 
 sumption it lies on the defendant to rebut, 
 
 by showing that it was justifiable or excusa. 
 ble. Ahson, Sc. Law, 48. 
 
 REBUTTER In Pleading. The name 
 ot the defendant's answer to the plaintiff-, 
 surrejomder. It is governed by the same 
 rules as the rejomder. Comyns, Dig. Pkader 
 (K). See Pleadings. 
 
 REBUTTING EVIDENCE. Thatevi 
 dence which is given by a party in the cause 
 to explain, repel, counteract, or disprove facts 
 given m evidence on the other side. Tlie 
 term rebutting evidence is more particularly 
 applied to that evidence given by the plaintiff 
 to explain or repel the evidence given by the 
 defendant. 
 
 It is a general rule that any thing may be 
 giving as rebutting evidence which is a direct 
 reply to that produced on the other side ; 2 
 M'Cord, 161; and the proof of circumstances 
 may be oflfered to rebut the most positive tes- 
 timony ; 1 Pet. C. C. 235. 
 
 But there are several rules which exclude 
 all rebutting evidence. A party cannot im- 
 peach his own witness, though he may dis- 
 prove, by other witnesses, matters to which 
 he has testified ; 3 Litt. 465 ; nor can he re- 
 but or contradict what a witness has sworn to 
 which is immaterial to the issue; 16 Pick. 
 153; 2 Bail. 118. 
 
 Parties and privies are estopped from con- 
 tradicting a written instrument by parol proof; 
 but this rule does not apply to strangers ; 10 
 Johns. 229. But the parties may prove that 
 before breach the agreement was abandoned, 
 or annulled by a subsequent agreement not 
 in writing; 4 N. H. 196. And when the 
 writing was made by another, as where the 
 log-book stated a desertion, the party affected 
 by it may prove that the entry was false or 
 made by mistake ; 4 Mas. 641. See Es- 
 toppel. 
 
 RECALL. In International Law. To 
 deprive a minister of his functions ; to super- 
 sede him. 
 
 RECALL A JUDGMENT. To reverse 
 a judgment on a matter of fact. The judg- 
 ment is then said to be recalled or revoked; 
 and when it is reversed for an error of law 
 it is said simply to be reversed, quod judicium 
 reversetur. 
 
 RECAPTION. The act of a person who 
 has been deprived of the custody of another, 
 to which he is legally entitled, by which he 
 regains the peaceable custody of such person ; 
 or of the owner of personal or real property 
 who has been deprived of his possession, by 
 which he retakes possession peaceably. 
 
 In each of these cases the law allows the 
 recaption of the person or of the property, 
 provided he can do so without occasioning j 
 breach of the peace or an injury to a third 
 person who has not been a party to the wrong. 
 Co. 3d Inst. 134 ; 2 Rolle, Abr. 665; 3 Bla. 
 Com. 5. 
 
 The right of recaption of a person is con- 
 fined to a husband, in retaking his wife ; • 
 
EECAPTURE 
 
 5U 
 
 RECEIPT 
 
 parent, his child, of whom he has the cus- 
 tody ; a master, his apprentice ; and, accord- 
 in" to Blackstone, a master, his servant, — but 
 thTs must be limited to a servant who assents 
 to the recaption : in these cases, the party 
 injured may peaceably enter the house of the 
 wronf-doer, without a demand being first 
 made" the outer door being open, and take 
 and carry away the person wrongfully de- 
 tained. He may also enter {)eaceably into 
 the house of a person harboring, who was 
 rot concerned in the original abduction; 8 
 Bingh. 186. 
 
 The same principles extend to the right of 
 recaption of personal property. In this sort 
 of recaption too much care cannot be observed 
 to avoid any personal injury or breach of the 
 peace. 
 
 In the recaption of real estate, the owner 
 may, in the absence of the occupier, break 
 open the outer-door of a house and take pos- 
 session: but if in regaining his possession 
 the party be guilty of a forcible entry and 
 breach of the peace, he may be indicted ; but 
 the wrong- doer, or person who had no right 
 to the possession, cannot sustain any action 
 for such forcible regaining possession merely ; 
 1 Chitty, Pr. 646. 
 
 BECAFTURE. The recovery from the 
 enemy, by a friendly force, of a prize by him 
 captured. 
 
 It seems incumbent on fellow-citizens, and 
 it is of course equally the duty of allies, to 
 rescue each other from the enemy when there 
 is a reasonable prospect of success ; 3 C. 
 Rob. 224. 
 
 By the British law, vessels belonging to 
 British subjects recaptured, are restored to 
 their owners on payment of a fixed rate of 
 salvage, unless they shall appear to have been 
 sent forth by the enemy as vessels of war. 
 In the United States, vessels are restored to 
 their former owners, upon payment of salvage, 
 unless they have been condemned as a prize 
 by competent authority. By the French law, 
 if a French vessel be retaken from the enemy 
 after being in his hands more than twenty- 
 four hours, it is a good prize to the recap- 
 tor. But if retaken by a public ship after 
 twenty-four hours, it is restored to the owner 
 on payment of salvage ; Boyd's Wheat. Int. 
 Law, 443. 
 
 RECEIPT (Lat. receptum, received : 
 through Fr. receit). A written acknowledg- 
 ment of payment of money or delivery of 
 chattels. 
 
 It is executed by the person to whom the 
 delivery or payment is made, and may be used 
 as evidence against him, on the general prin- 
 ciple which allows the admission or declara- 
 tion of a party to be given in evidence against 
 himself. As an instrument of evidence, the 
 receipt of one person is, in genera), inopera- 
 tive against another, although often useful as 
 a voucher in the private settlement of ac- 
 counts ; and the statutes of some states make 
 receipts for small payments made by execu- 
 
 tors, etc. evidence of the payment on a settle- 
 ment of their accounts. And receipts of pub- 
 lic officers are sometimes admissible per se; 1 
 111. 45. It is essential to a receipt that it 
 acknowledge the payment or delivery referred 
 to; Russ. & R. 227 ; 7 C. & P. 549. And 
 under the stamp laws a delivery or payment 
 must be stated ; 1 Camp. 499. Also the re- 
 ceipt must, from the nature of the case, be in 
 writing, and must be delivered to the debtor; 
 for a memorandum of payment made by the 
 creditor in his own books is no receipt ; 2 B. 
 & Aid. 501, n.; 1 Spears, 53. 
 
 Receipts, effect of. The mere acknow- 
 ledgment of payment made is not ti-eated in 
 law as binding or conclusive in any high de- 
 gree. So far as a simple acknowledgment of 
 payment or delivery is concerned, it is pre- 
 sumptive evidence only; 1 Pet. C. C. 182; 
 1 Rich. 32 ; 1 Harr. Del. 5 ; 16 Wend. 460 ; 
 16 Me. 475 ; .5 Ark. 61 ; 11 Mass. 27, 363 ; 
 3 McLean, 265; 6 B. Monr. 199 ; 1 Perr. & 
 D. 437; 8 Gill, 179 ; 3 Jones, No. C. 501; and 
 is, in general, open to explanation ; 2 Johns. 
 378 ; 8 Ala. N. s. 59 ; 4 Vt. 308 ; 3 McLean, 
 387 ; 4 Barb. 265 ; 5 J. J. Marsh. 79 ; 5 
 Mich. 171; being an exception to the general 
 rule that parol evidence cannot be admitted 
 to contradict or vary a written instrument ; 5 
 Johns. 68 ; 2 Mete. Mass. 283. Thus, a 
 party may always show, in explanation of a 
 receipt limited to such acknowledgment, the 
 actual circumstances under which it was 
 made; 8 Johns. 389; e.g. that it was ob- 
 tained by fraud ; Wright, Ohio, 764 ; 4 H. 
 &M'H. 219; or given under a mistake; 6 
 Barb. 58 ; 3 Dana, 427 ; or that, in point of 
 fact, no money was actually paid as stated in 
 it ; 2 Strobh. 390 ; 3 N. Y. 168 ; 10 Vt. 96. 
 But see 1 J. J. Marsh. 583. A receipt is an 
 admission only ; 3 B. & Ad. 318; it is but 
 prima facie evidence against the creditor, and 
 may be explained, unless executed with the 
 formalities of a deed ; Leake, Contr. 901 ; in 
 law as well as equity ; L. R. 6 Ch. 534. 
 
 Receipts "in full." When, however, we 
 find a receipt acknowledging payment "in 
 full" of a specified debt, or "in full of all 
 accounts" or of " all demands," the instru- 
 ment is of a much higher and more conclusive 
 character. It does not, indeed, like a release, 
 operate upon the demand itself, extinguishing 
 it by any force or virtue in the receipt, but it 
 is evidence of a compromise and mutual 
 settlement of the rights of the parties. The 
 law infers from such acknowledgment an ad- 
 justment of the amount due, after considera^ 
 tion of the claims of each party, and a pay- 
 ment of the specified sum as a final satisfac- 
 tion ; 10 Vt. 491 ; 2 Dev. 247 ; Wright, Ohio, 
 764 ; 21 N. H. 85. This compromise thus 
 shown by the receipt will often operate to 
 extinguish a demand, although the creditor 
 may be able to show he did not receive all 
 that he justly ought. See Accord and 
 Satisfaction. If the rights of a party are 
 doubtful, are honestly contested, and time is 
 given to allow him to satisfy himself, a re- 
 
RECEIPT 
 
 512 
 
 RECEIPT 
 
 oeipt in full, though given for less than his 
 just rights, will not be set aside. Thus, in 
 general, a receipt in full is conclusive when 
 given with a knowledge of the circumstances, 
 and when the party giving it cannot complain 
 of any misapprehension as to the compromise 
 he was making, or of any fraud ; 5 Vt. 520 ; 
 
 1 Camp. 392 ; 2 Strobh. 208. But receipts 
 of this character are not wholly exempt from 
 explanation : fraud or misrepresentation may 
 be proved, and so may such mistake as enters 
 into and vitiates the. compromise of the de- 
 mand admitted ; Brayt. 75 ; 1 Camp. 394 ; 
 Coxe, N. J. 48 ; 2 Brev. 223 ; 4 H. & M'H. 
 219; 4 Barb. 265; 2 Harr. Del. 392; 2 C. 
 & P. 44. The evidence in explanation must 
 be clear and full, and addressed to the point 
 that there was not in fact an intended and 
 valid compromise of the demand. For if the 
 compromise was not binding, the receipt in 
 full will not aid it. The receipt only operates 
 as evidencce of a compromise which extin- 
 guished the claim ; 26 Me. 88 ; 4 Denio, 166 ; 
 
 2 M'Cord, 320; 4 Wash. C. C. 562. 
 Receipts in deeds. The effect to" be given 
 
 to a receipt for the consideration-money, so 
 frequently inserted in a deed of real property, 
 has been the subject of numerous and con- 
 flicting adjudications. The general principle 
 settled by weight of authority is that for the 
 purpose of sustaining the conveyance as against 
 the vendor and his privies the receipt is con- 
 clusive : they are estopped to deny that a 
 consideration was paid sufficient to sustain the 
 conveyance; 1 Binn. 602; 26 Mo. 56; 4 
 Hill, N. Y. 643. But in a subsequent action 
 for the purchase-money or upon any collateral 
 demand, e.g. in an action to recover a debt 
 which was in fact paid by the conveyance, or 
 in an action for damages for breach of a co- 
 venant in the deed, and the like, the grantor 
 may show that the consideration was not in 
 fact paid — that an additional consideration to 
 that mentioned was agreed for, etc. ; 16 
 Wend. 460 ; 10 Vt. 96 ; 4 N. H. 229, 397 ; 
 1 M'Cord. 614; 7 Pick. 633; 1 Rand. 219; 
 4 Dev. 355 ; 6 Me. 364 ; 5 B. & Aid. 606 ; 
 6 Ala. 224 ; 2 Harr. Del. 354 ; 13 Miss. 238 ; 
 6 Conn. 113 ; 1 Harr. & G. 139 ; 2 Humphr. 
 684 ; 1 J. J. Marsh. 387 ; 3 Ind. 212 ; 15 
 111. 230 ; 1 Stockt. Ch. 492. But there are 
 many contrary cases. See 1 Me. 2; 7 Johns. 
 341 ; 3 M'Cord, 552 ; 1 Harr. & J. 252 ; 1 
 Hawks, 64 ; 4 Hen. & M. 113 ; 2 Ohio, 182 ; 
 1 B. & C. 704. And when the deed is at- 
 tacked for fraud, or is impeached by credi- 
 tors as voluntary and therefore void, or when 
 the object is to show the conveyance illegal, 
 the receipt may be explained or contradicted ; 
 
 3 Zabr. 465 ; 3 Md. Ch. Dec. 461 ; 21 Penn. 
 480; 20 Pick. 247 ; 12 N. H. 248. See As- 
 sumpsit Deed ; Recital. 
 
 With this exception of receipts inserted in 
 a sealed instrument having some other pur- 
 pose, to which the receipt is collateral, a re- 
 ceipt under seal works an absolute estoppel, 
 on the same principles and to the same gene- 
 ral extent as other specialties ; Ware, 496 ; 
 
 4 Hawks, 22. Thus, where an assignment 
 of seamen's wages bore a sealed receipt for 
 the consideration-money, even though the 
 attesting witness testified that no money was 
 paid at the execution of the papers, and de- 
 fendant offered no evidence of any payment 
 ever having been made, and refused to pro- 
 duce his account with the plaintiff (the 
 assignor), on the trial, it was held that the 
 receipt was conclusive; 2 Taunt. 141. gee 
 Seal; Specialty. 
 
 Receipt embodying contract. A receipt 
 may embody a contract ; and in this ease it is 
 not open to the explanation or contradiction 
 permitted in the case of a simple receipt ; 4 
 Gray, 186. The fact that it embodies an 
 agreement brings it within the rule that all 
 matters resting in parol are merged in the 
 writing. See Evidence. Thus, a receipt 
 which contains- a clause amounting to an 
 agreement as to the apphcation to be made of 
 the money paid — as when it is advanced on 
 account of future transactions — is not open to 
 parol evidence inconsistent with it; 5 Ind. 
 109; 14 Wend. 116; 12 Pick. 40, 562; 16 
 id. 437. A bill of parcels with prices affixed, 
 rendered by a seller of goods to a purchaser, 
 with a receipt of payment executed at tlie 
 foot, was held in one case to amountto a con- 
 tract of sale of the goods, and therefore not 
 open to parol explanation ; while in another 
 case a similar bill was held merely a receipt, 
 the bill at the head being deemed only a 
 memorandum to show to what the receipt 
 applied ; 3 Cra. 311 ; 1 Bibb, 271. A bill 
 of lading, which usually contains -words of 
 receipt stating the character, quantity, and 
 condition of the goods as, delivered to the 
 carrier, is the subject of a somewhat peculiar 
 rule. It is held that so far as the receipt is 
 concerned it may be explained by parol; 
 6 Mass. 422; 7 id. 297; 3 N. Y. 821; 10 
 irf. 629; lAbb.,Adm. 209,397. But see I 
 Bail. 174. 
 
 But as respects the agreement to carry and 
 deliver, the bill is a contract, to be construed, 
 like all other contracts, according to the legal 
 import of its terms, and cannot be varied hy 
 parol; 25 Barb. 16; 8 Sandf. 7. In this 
 connection may also be mentioned the receipt 
 customarily given in the New England states, 
 more particularly for goods on which an at- 
 tachment has been levied. The oflBcer taking 
 the goods often, instead of retaining them m 
 his own manual control, delivers them to some 
 third person, termed the "receiptor," who 
 
 fives his receipt for them, undertaking to re- 
 eliver upon demand. This receipt has m 
 some respects a peculiar force. The receiptor 
 having acknowledged that the goods have been 
 attached cannot afterwards object that no at^ 
 tachment was actually made, or that it was 
 insufficient or illegal; 11 Mass. 219, 317: U 
 Pick. 196. Nor can he deny that the prop- 
 erty was that of the debtor, except in mi^ga- 
 tion of damages or after re-delivery ; 1 2 "C*' 
 662 ; 13 id. 139; 15 id. 40. And, in the at)- 
 sence of fraud, the value of the chattels statea 
 
RECEIPT 
 
 613 
 
 KECEIVEK 
 
 in the receipt is conclusive upon the receiptor; 
 12 Pick. 362. 
 
 Where the payment is made in some par- 
 ticular currency or medium, as doubtful bank- 
 bills, a promissory note of another person, etc., 
 clauses are often inserted in the receipts speci- 
 fying the condition in which such mode of pay- 
 ment is accepted. The rule of law in most of 
 onr states is that negotiable paper given in 
 payment is presumed to have been accepted 
 on the condition that it shall not work a dis- 
 charge of the demand unless the paper shall 
 uhiraately produce satisfaction ; and if an in- 
 tent to accept it absolutely does not affirma- 
 tively appear, the creditor is entitled, in case 
 the paper turned out to him is dishonored, to 
 return it and claim to be paid anew. See 
 Payment. If the receipt is silent on that 
 subject, it is open to explanation, and the 
 creditor may rebut it by proof that the pay- 
 ment admitted was in fact made by a note, 
 bill, check, bank-notes afterwards ascertained 
 to be counterfeit, or notes of a bank in fact 
 insolvent though not known to be so to the 
 parties, etc. ; 1 Wash. C. C. 338 ; 1 W. & S. 
 521 ; 2 Johns. Cas. 438 ; 13 Wend. 101 ; 3 
 McLean, 265 ; 5 J. J. Marsh. 78. But see 3 
 Caines, Cas. 14 ; 1 Munf. 460 ; 1 Mete. Mass. 
 166. But if the agreement of the parties is 
 specified in the receipt, the clause which con- 
 tains it will bind the parties, as being in the 
 nature of a contract ; 4 Vt. 555 ; 1 Rich.' 
 Ill ; 16 Johns. 277 ; 23 Wend. 345 ; 2 Gill 
 & J. 493 ; 3 B. Monr. 353. A receipt for a 
 note taken in payment of an account will not, 
 in general, constitute a defence to an action 
 on the account, unless it appears by proof 
 that the creditor agreed to receive the note as 
 payment and take the risk of its being paid ; 
 10 Md. 27. 
 
 Receipts, uses of. A receipt is often useful 
 as evidence of facts collateral to those stated 
 in it. It proves the payment ; and whatever 
 inference may be legally drawn from the fact 
 of the payment described will be supported 
 by the receipt. Thus, receipts for rent for a 
 given term have been held prima facie evi- 
 dence of the payment of all rent previously 
 accrued ; 15 Johns. 479 ; 1 Pick. 332. And 
 they have been admitted on trial of a writ of 
 right, as showing acts of ownership on the 
 ■part of him who gave them; 7 C. B. 21. 
 A receipt given by A to B for the price of a 
 horse, afterwards levied on as property of A, 
 but claimed by B, has been admitted as 
 evidence of ownership against the attaching 
 creditor; 2 Harr. N. J. 78. A receipt "in 
 full of all accounts," the amount being less 
 than that called for by the accounts of the 
 party giving it, was held in his favor evidence 
 of a mutual settlement of accounts on both 
 sides, and of payment of the balance ascer- 
 tamed to be due after setting off one account 
 against the other ; 9 Wend. 332. A receipt 
 given by an attorney for securities he was to 
 collect and account for has been held pre- 
 sumptive evidence of the genuineness and 
 justness of the securities ; 14 Ala. 500. And 
 Vol. II 33 
 
 when a general receipt is given by an attorney 
 for an evidence of debt then due, it will be 
 presumed he received it in his capacity as 
 attorney for collection ; and it is incumbent 
 on him to show he received it for some other 
 purpose, if he would avoid an action for 
 neglect in not collecting; 3 Johns. N. Y. 
 185. 
 
 Receipts, larceny and forgery of. A re- 
 ceipt may he the subject of larceny ; 2 Abb. 
 Pr. 211 ; or of forgery ; Russ. & R. 227 ; 7 C. 
 & P. 459. And it is a sufficient "uttering'" 
 of a forged receipt to place it in the hands of 
 a person for inspection with intent fraudu- 
 lently to induce him to make an advance on 
 the faith that the payment mentioned in the 
 spurious receipt has been made ; 14 E. L. & 
 Eq. 556. See Forgery. 
 
 RECEIPTOR. In Practice. A name 
 given to the person yrho, on a trustee process 
 being issued and goods attached, becomes 
 surety to the sheriff to have them forthcoming 
 on demand, or in time to respond to the judg- 
 ment, when the execution shall be issued; 
 upon which the goods are bailed to him. 
 Story, Bailm. § 124. The term is used in 
 New York and New Hampshire; 11 N. H. 
 557; and Maine ; 14 Me. 414. See Attach- 
 ment ; Receipt. 
 
 As to whether a receiptor is estopped to 
 show property in himself, see 31 Am. Dec. 
 62 ; s. c. 14 Me. 414 ; 25 Am. Dec. 426, n. ; 
 116 Mass. 454; 28 Am. Dec. 695;" 24 Am. 
 Dec. 108. He may defend by showing that 
 the property has been taken from him ; 1 1 
 N. H. 570. 
 
 RECEIVER. In Practice. One who 
 
 receives money to the use of another to ren- 
 der an account. Story, Eq. Jur. § 446. 
 Receivers were at common law liable to the 
 action of account-render for failure in the 
 latter portion of their duties. 
 
 In equity. A person appointed by a court 
 possessing chancery jurisdiction, to receive 
 the rents and profits of land, or the profits or 
 produce of other property in dispute. 
 
 A receiver is an indifferent person be- 
 tween the parties appointed by the court to 
 collect and receive the rents, issues, and 
 profits of land, or the produce of personal 
 estate, or other things which it does not seem 
 reasonable to the court that either party 
 should do ; or where a party is incompetent 
 to do so, as in the case of an infant. The 
 remedy of the appointment of a receiver is 
 one of the very oldest in the court of chan- 
 cery, and is founded on the inadequacy of the 
 remedy to be obtained in the court of ordinary 
 jurisdiction ; Bisph. Eq. 606. 
 
 He is a ministerial officer of the court it- 
 self; 1 Ball & B. 74 ; 2 S. & S. 98 ; 1 Cox, 
 Ch. 422; 9 "Ves. 335 ; 11 Ga. 413 ; with no 
 powers but those conferred by his order of 
 appointment and the practice of the court ; 6 
 Barb. 589 ; 2 Paige, Ch. 452 ; which do not 
 extend beyond the jurisdiction of the court 
 which appoints him ; 1 7 How. 322 ; ap- 
 
RECEIVER 
 
 514 RECEIVER OF STOLEN GOODS 
 
 pointed on behalf of all parties who may es- 
 tablish rights in the cause ; 1 Hog. 234 ; 3 
 Atk. 564 ; 2 Md. Ch. Dee. 278 ; 4 Madd. 
 80; 4 Sandf. Ch. 417; and after his ap- 
 pointment neither the owner nor ani^- other 
 party can exercise any acts of ownership over 
 the property ; 2 S. & S. 96. Neither party is 
 responsible for his acts ; 2 "Wall. 51 9. His 
 custody is that of .the court, and leaves the 
 right of the parties concerned to be controlled 
 by the ultimate decree of the court ; 1 Bank. 
 Reg. 517. 
 
 A receiver is appointed only in those cases 
 where in the exercise of a sound discretion it 
 appears necessary that some indifferent person 
 should have charge of the property ; 1 Johns. 
 Ch. 57 ; 25 Ala. N. s. 81 ; only during the 
 pendency of a suit ; 1 Atk. 578 ; 2 Du. N. Y. 
 6.S2 ; except in extreme cases ; 2 Atk. 315 ; 
 2 Dick. Ch. 580 ; as when a fund in litiga- 
 tion is in peril ; 2 Blatch. 78 ; and ex parte ; 
 14 Beav. 423 ; 8 Paige, Ch. 373 ; or before 
 answer; 13 Ves. 266; 4 Price, 346; 4 Paige, 
 Ch. 574; 2 Swanst. 146 ; in special cases 
 only ; and, generally, not till all the- parties 
 are before the court ; 2 Russ. Ch. 145 ; 1 
 Hog. Ir. 93. The action of the court in the 
 appointment of a receiver is not reviewable on 
 appeal; 1 Bond, 422 ; 1 Biss. 198. 
 
 One will not be appointed, except under 
 special circumstances making a strong case, 
 where a party is already in possession of the 
 property under a legal title ,-19 Ves. 59 ; 1 
 Ambl. 311 ; 2 Y. & C. 351 ; as a trustee ; 2 
 Bro. C. C. 158; 1 V. & B. 183: 1 My. 
 & C. 163 ; 16 Ga. 406 ; 2 J. & W. 294; an 
 executor ; 13 Ves. 266 ; tenant in common ; 
 2 Dick. Ch. 800 ; 4 Bro. C. C. 414 ; 2 S. & 
 S. 142 ; a mortgagee ; 4 Abb. Pr. 235 ; 13 
 Ves. 377; IJ. & W. 176, 627 ; 1 Hog. Ir. 
 179; or a mortgagor when the debt is not 
 wholly due; 5 Paige, Ch. 38; a director of a 
 corporation in a suit by a stockholder ; 2 
 Halst. Ch. 374 ; where the property is or 
 should be already in the possession of. some 
 court, as during the contestation of a will in 
 the proper court; 2 Atk. 378; 6 Ves. 
 172 ; 2 V. & B. 85, 95 ; 7 Sim. 512 ; 1 My. 
 & C. 97 ; but see 3 Md. Ch. Dec. 278 ; when 
 admiralty is the proper forum ; 5 Barb. 209 ; 
 or where there is already a receiver ; 1 Hog. 
 Ir. 199 ; 10 Paige, Ch. 43 ; 1 Ired. Eq. 210 ; 
 11 id. 607; nor, on somewhat similar 
 grounds, where salaries of public oflScers are 
 in question ; 1 Swanst. 1 ; 2 Sim. 560 ; 10 
 Beav. 602 ; 2 Paige, Ch. 333 ; or where a 
 public office is in litigation ; 9 Paige, Ch. 507 ; 
 where the equitable title of the party asking a 
 receiver is incomplete as made out, as where 
 he has delayed asking for one ; 1 Hog. Ir. 
 118; 1 Donn. Min. Cas. 71; or where the 
 necessitjf is not very apparent, as on account 
 merely of the poverty of an executor ; 1 2 
 Ves. 4; 1 Madd. 142; 18 Beav. 161; see 4 
 Price, 346 ; pending the removal of a trustee; 
 1 6 Ga. 406 ; where a trustee mixes trust- 
 money with his own; 1 Hopk. Ch. 429. 
 
 Generally any stranger to the suit may be 
 
 appointed receiver. The court will not appoint 
 attorneys and solicitors in the cause ; i Hob 
 Ir. 322 ; masters in chancery ; 6 Ves. 427 • aii 
 officer of the corporation ; 1 Paige, Ch. 517 • 
 though it is sometimes done; a mortgagee • 
 2 Term, 238 ; 9 Ves. 271 ; a trustee ; 3 Ve«' 
 516; 8 id. 72; see 3 Mer. 695; apartvin 
 the cause; 2 J. 8f W. 255. ' 
 
 One who has a legal cause of action sound- 
 ing merely in tort against a receiver ap. 
 pointed by a court of chancery has a right to 
 pursue his redress by an action at law. Such 
 action cannot be brought without the chan, 
 cellor's permission, but this cannot be re- 
 fused, unless the claim preferred be mani- 
 festly unfounded ; 19 Am. L. Reg. n. s. 553 ■ 
 16 Wall. 218. See 25 Alb. L. J. 46.^ 
 
 He has no power without the previous di- 
 rection of the court to incur any cxpensei, 
 except those absolutely necessary for the pre- 
 servation and use of the property; 93 Ijf S 
 352. 
 
 He is responsible for good faith and reason- 
 able diligence. When the property is lost or 
 injured by any negligence or dishonest exe- 
 cution of the trust, he is liable in damages ; 
 but he is not as of course responsible because 
 there has been an embezzlement or theft. He 
 is bound to such ordinary diligence as belongs 
 to a prudent and honest discharge of his duties, 
 and such as is required of all persons who re- 
 ceive compensation for their services ; Story, 
 Bailm. §§620,621; see 80 N.Y. 458 ; butheis 
 not the agent of an insolvent railroad com- 
 pany, and hence the company is not liable for 
 damages occasioned by his negligence in ope- 
 rating the road ; 58 N. Y. 61 ; nor is he 
 personally liable ; 63 N. Y. 281 ; but he is 
 liable for loss as a carrier of goods ; 38 Vt. 
 402; 99 Mass. 395. It is held that where 
 an injury results from the fault or misconduct 
 of a receiver appointed by a court of equity, 
 the court may in its discretion either take 
 cognizance of the question of the receiver's 
 liability, and determine it, or permit tlie ag- 
 grieved party to sue at law ; 1 1 C. E. Green, 
 474 ; 4 Hun, 373; 14 Cent. L. J. 347; 12 
 Am. Law Rev. 660. See, generally, Ed- 
 wards, Kerr, Receivers. 
 
 A receiver cannot sue outside of the juris- 
 diction which appointed him ; 17 How. 322; 
 but see, contra, 48 Conn. 401 ; 8 Baxt. 580 ; 
 art. in 6 Cent. L. J. 143 ; nor be sued in any 
 other court without the consent of that which 
 commissioned him ; 25 Alb. L. J. 46 (S. C. 
 of U. S.). See Receivers' Certificates. 
 
 RECEIVER OP STOLEN GOODS. 
 In Criminal Law. By statutory provision, 
 the receiver of stolen goods, knowing them 
 to have been stolen, may he punished as 
 the principal, in perhaps all the United 
 States. , 
 
 To make this offence complete, the gooa» 
 received must have been stolen, they musj 
 have been received by the defendant, ano 
 the receiver must know that they had been 
 stolen. 
 
RECEIVER OF STOLEN GOODS 515 RECEIVERS' CERTIFICATES 
 
 A boy stole a chattel from his master, and 
 after it had been taken from him in his mas- 
 ter's presence, it was, with the master's con- 
 sent, restored to him afjain, in order that he 
 miffht sell it to the defendant, to whom he 
 haS been in the habit of selling similar 
 stolen articles. He accordingly sold it to the 
 defendant, who, bein" indicted for feloniously 
 receiving it of an evil-disposed person, know- 
 ing it to be stolen, was convicted, and, not- 
 withstanding objection made, sentenced; Car. 
 & M. 217. But this case has since been held 
 not to be law, and a defendant not to be 
 liable to conviction under such circumstances, 
 inasmuch as at the time of the receipt the 
 goods were not stolen g'oods ; Dearsl. 468. 
 
 The goods stolen must have been received 
 by the defendant. Prima facie, if stolen 
 goods are found in a man' s house, he, not be- 
 ing the thief, is a receiver ; per Coleridge, J. , 
 
 1 Den. Cr. Cas. 601. And though tliere is 
 proof of a criminal intent to receive, and a 
 knowledge that the goods were stolen, if the 
 eaiciusiM possession still remains in the thief, a 
 conviction for receiving cannot be sustained ; 
 
 2 Den. Cr. Cas. 37. So a principal in the 
 first degree, particeps criminis, cannot at the 
 same time be treated as a receiver ; 2 Den. Cr. 
 Cas. 459. Where a prisoner is charged in 
 two counts with stealing and receiving, the 
 jury may return a verdict of guilty on the 
 latter count, if "warranted by the evidence, al- 
 though the evidence is also consistent with the 
 prisoner having been a principal in the second 
 degree in the stealing ; Bell, Or. Cas. 20. 
 But a person having a joint possession with 
 the thief may be convicted as a receiver; 
 Dearsl. 494. The actual manual possession 
 or touch of the goods by the defendant, how- 
 ever, is not necessary to the completion of the 
 offence of receiving ; it is sufficient if they are 
 in the actual possession of a person over whom 
 the defendant has a control, so that they 
 would be forthcoming if he ordered it ; Dearsl. 
 Cr. Cas. 494. Husband and wife were in- 
 dicted jointly for receiving. The jury found 
 both guilty, and found, also, that the wife re- 
 ceived the goods without the control or knowl- 
 edge of the husband, and apart from him and 
 that "he afterwards adopted his wife's re- 
 ceipt." It was held that this finding did not 
 warrant the conviction of the husband ; Dearsl. 
 & B. 329. 
 
 It is almost always difficult to prove guilty 
 knowledge ; and that must, in general, be col- 
 lected from circumstances. If such circum- 
 stances are proved which to a person of 
 common understanding and prudence, and 
 situated as the prisoner was, must have satis- 
 fied him that they were stolen, this is suffi- 
 cient. For example, the receipt of watches, 
 jewelry, large quantities of money, bundles 
 of clothes of various kinds, or personal pro- 
 perty of any sort, to a considerable value, 
 from boys or persons destitute of property 
 and without any lawful means of acquiring 
 them, and specially if bought at untimely 
 hours, the mind can arrive at no other con- 
 
 clusion than that they were stolen. This is 
 further confirmed if they have been bought 
 at an under-value, concealed, the marks de- 
 faced, and falsehood resorted to in accounting 
 for the possession of them; Alison, Cr. Law, 
 330 ; 2 Russ. Cr. 253 ; 1 Fost. & F. 51. 
 
 At common law, receiving stolen goods, 
 knowing them to have been stolen, is a mis- 
 demeanor ; 2 Russ. Cr. 253. But in Massa- 
 chusetts it has been held to partake so far of 
 the nature of felony that if a constable or 
 other peace-officer has reasonable grounds to 
 suspect one of the crime of receiving or aiding 
 in the concealment of stolen goods, knowing 
 them to be stolen, he may without warrant 
 arrest the supposed offender, and detain him 
 for a reasonable time, for the purpose of se- 
 curing him to answer a complaint for such of- 
 fence ; 5 Cush. 281. See Recent Posses- 
 sion, ETC. 
 
 RECEIVERS' CERTIFICATES. Cer- 
 tificates of indebtedness issued by receivers in 
 possession of property and having the first 
 lien upon such property. 
 
 A court of chancery has power after notice 
 to interested parties to authorize the issue 
 even of negotiable certificates of indebted- 
 ness, creating a first lien, displacing other 
 liens to that extent, on the property of a 
 railroad which it is operating through its 
 receiver, whenever it is necessary to raise 
 money for the economical management and 
 conservation of the property. In order to 
 complete a railroad, equity will not create 
 liens upon its property, which will displace an 
 older lien (but where it was necessary to com- 
 plete a railroad before a certain date, in order 
 to secure a line grant, which was a very 
 material part of the security of the bond- 
 holders, a receiver was authorized to borrow 
 money and complete the road ; 2 Dill. 448 ; 
 but this was a case of great exigency. See 
 2 Woods, 506; 54 Iowa, 200). A chancellor 
 cannot authorize a receiver to borrow money by 
 selling interest-bearing receivers' certificates 
 of indebtedness at less than their face value ; 
 53 Ala. 237 ; but see, as to this last point, 
 2 Woods, 506. 
 
 A lien for a receivership debt which shall 
 take precedence over existing liens should not 
 be created or upheld, except when expressly 
 ordered in advance, with the consent of the 
 prior incumbrancers, and in a case of absolute 
 necessity for the preservation of the property 
 and securities; 12 Am. Railw. Rep. 497 
 (S. C. cf Vt.). 
 
 Where a dilapidated railroad is in posses- 
 sion of receivers, under proceedings brought 
 by trustees of a first mortgage, and it is 
 necessary to borrow money to preserve the 
 road and complete some inconsiderable por- 
 tion thereof, the court may auth'brize the 
 receivers to borrow money for such purposes, 
 and make the sum so borrowed a lien on the 
 property superior to the first mortgage. The 
 certificates issued here were payable to bearer 
 and referred to the order of court under which 
 they were issued ; it was held that they were 
 
RECENT POSSESSION OF, ETC. 516 RECENT POSSESSION OF, ETC. 
 
 not commercial paper, and that persons who 
 bouglit them were not bound to see to the 
 application of the purchase money ; 2 Woods, 
 506; see 95 111. 134. 
 
 Courts of equity have authority without the 
 consent of mortgagees, to order receivers to 
 borrow money and bind the property in their 
 hands for the payment of the loans ; 53 Ala. 
 237. See, generally, 12 Am. L. Rev. 660 ; 
 Receivkk. 
 
 RECENT POSSESSION OF STOLEN 
 PROPERTY. In Criminal La-w. Posses- 
 sion of the fruits of crime recently after its 
 commission is prima facie evidence of guilty 
 possession ; and if unexplained, either by 
 direct evidence, or by the attending circum- 
 stances, or by the character and habits of life 
 of the possessor, or otherwise, it is usually 
 regarded by the jury as conclusive ; 1 Tayl. 
 Ev. § 122. See 1 Greenl. Ev. §34. 
 
 It is manifest that the force of this rule of 
 presumption depends upon the recency of the 
 possession as related to the crime, and upon 
 the exclusiveness of such possession. 
 
 If the interval of time between the loss and 
 the finding be considerable, the presumption, 
 as it affects the party in possession of the 
 stolen property, is much weakened, and the 
 more especially so if the goods are of such a 
 nature as, in the ordinary course of things, 
 frequently to change hands. From the na- 
 ture of the case, it is not possible to fix any 
 precise period within which the effect of this 
 rule of presumption can be limited : it must 
 depend not only upon the mere lapse of time, 
 but upon the nature of tne property and the 
 concomitant circumstances of each particular 
 case. Thus, where two ends of woollen cloth 
 in an unfinished state, consisting of about 
 twenty yards each, were found in the posses- 
 sion of the prisoner two months after they 
 had been stolen, Mr. Justice Patteson held 
 that the prisoner should explain how he came 
 by the property ; 7 C. & P. 551. But where 
 the only evidence against a prisoner was that 
 certain tools had been traced to his possession 
 three months after their loss, Mr. Justice 
 Parke directed an acquittal ; 3 C. & P. 600. 
 And Mr. Justice Maule pursued a similar 
 course on an indictment for horse-stealing, 
 where it appeared that the horse was not dis- 
 covered in the custody of the accused until 
 after six months from the date of the robbery ; 
 3 C. & K. 318. So where goods lost sixteen 
 months before were found in the prisoner's 
 house, and no other evidence was adduced 
 against him, he was not called upon for his 
 defence ; 2 C. & P. 459. 
 
 It is obviously essential to the just appli- 
 cation of this rule of presumption that the 
 house or other place in which the stolen pro- 
 perty is found, be in the exclusive possession 
 of the prisoner. Where they are found in 
 the apartments of a lodger, for instance, the 
 presumption may be stronger or weaker 
 according as the evidence does or does not 
 sliow an exclusive possession. Indeed, the 
 finding of stolen property in the house of the 
 
 accused, provided there were other inmates 
 capable of committing the larceny, wiU ^ 
 itself be insufficient to prove his possession 
 however recently the theft may have been 
 effected, though, if coupled with proof of 
 other suspicious circumstances,' it may fully 
 warrant the prisoner's conviction even though 
 the property is not found in his house until 
 after his apprehension; J Tayl. Ev S 122- 
 3 Uowl. & R. 572; 2 Stark. 139. ' ' 
 
 The force of this presumption is greatly In- 
 creased if the fruits of a plurality or of a series 
 of thefts be found in the prisoner's possession 
 or if the property stolen consist of a multi! 
 plicity of miscellaneous articles, or be of an 
 uncommon kind, or, from its value or other 
 circumstances, be inconsistent with or unsuited 
 to the station of the party. 
 
 The possession of stolen goods recently 
 after their loss may be indicative not of the 
 offence of larceny dimply, but of any more 
 aggravated crime which has been connected 
 with theft. Upon an indictment for arson, 
 proof that property which was in the house 
 at the time it was burnt was soon afterwards 
 found in the possession of the prisoner was 
 held to raise a probable presumption that ho 
 was present and concerned in the offence. 
 2 East, PI. Cr. 1035. A like inference has 
 been raised in the case of murder accom- 
 panied by robbery; Wills, Circ. Ev. 72, 241; 
 in the cases of burglarv and shopbreaking ; 
 4B. & Aid. 122; 9C. &!'. 364; 1 Mass. 106; 
 and in the case of the possession of a quantity 
 of counterfeit money; Russ. & R. 308; 
 Dearsl. 652. 
 
 Upon the principle of this presumption, a 
 sudden and otherwise inexplicable transition 
 from a state of indigence, and a consequent 
 change of habits, is sometimes a circumstance 
 extremely unfavorable to the supposition of 
 innocence; 11 Mete. 534. See 1 Gray, 101. 
 
 But this rule of presumption must be ap- 
 plied with caution and discrimination ; for the 
 bare possession of stolen property, though 
 recently stolen, uncorroborated by other evi- 
 dence, is sometimes fallacious and dangerous 
 as a criterion of guilt. Sir Matthew Hale 
 lays it down that "if a horse be stolen from 
 A, and the same day B be found upon him, it 
 is a strong presumption that B stole him; 
 yet," adds that excellent lawyer, "I do re- 
 member before a learned and very wary judge, 
 in such an instance, B was condemned and 
 executed at Oxford assizes, and yet, within 
 two assizes after, C, being apprehended for 
 another robbery, and convicted, upon his 
 judgment and execution confessed he was the 
 man that stole the horse, and, being closfly 
 pursued, desired B, a stranger, to walk his 
 horse for liim while he turned aside upon a 
 necessary occasion, and escaped ; and B was 
 apprehended with the horse, and died inno- 
 cently." 2 Hale, PI. Cr. 289. . 
 
 The rule under discussion is occasionally 
 attended with uncertainty in its application, 
 from the difficulty attendant upon the positive 
 identification of articles of property allcgea 
 
RECEPTUS 
 
 517 
 
 RECITAL 
 
 to have been stolen ; and it clearly ought 
 never to be applied where there is reasonable 
 ground to conclude that the witnesses may be 
 mistaken, or where, from any other cause, 
 identity is not satisfactorily established. But 
 the rule is nevertheless fairly and properly 
 applied jn peculiar circumstances, where, 
 though positive identification is impossible, 
 the possession of the property cannot without 
 violence to every reasonable hypothesis but 
 be considered of a guilty character : as in the 
 case of persons employed in carrying sugar 
 and other articles from ships and wharves. 
 Cases have frequently occurred of convictions 
 of larceny, in such circumstances, upon evi- 
 dence that the parties were detected with 
 property of the same kind upon them re- 
 cently after coming from such places, although 
 the identity of the property as belonging to 
 any particular person could not otherwise be 
 proved. 
 
 It is seldom, however, that juries are re- 
 quired to determine upon the effect of evidence 
 of the mere recent possession of stolen pro- 
 perty : from the very nature of the case, the 
 fact is generally accompanied by other corro- 
 borative or explanatory circumstances of pre- 
 sumption. If the party have secreted the 
 property ; if he deny it is in his possession, 
 and such denial is discovered to be false ; if he 
 cannot show how he became possessed of it ; 
 if he give false, incredible, or inconsistent ac- 
 counts of the manner in which he acquired it, 
 as that he had found it, or that it had been 
 given or sold to him by a stranger or left at 
 his house ; if he has disposed of or attempted 
 to dispose of it at an unreasonably low price ; 
 if he has absconded or endeavored to escape 
 from justice ; if other stolen property, or 
 picklock keys, or other instruments of crime, 
 be found in his possession ; if he were seen 
 near the spot at or about the time when the 
 act was committed, or if any article belonging 
 to him be found at the place or in the locality 
 where the theft was committed, at or about 
 the time of the commission of the offence : if 
 the impression of his shoes or other articles of 
 apparel correspond with marks left by the 
 thieves ; if he has attempted to obliterate 
 from the articles in question marks of iden- 
 tity, or to tamper with the parties or 
 the officers of justice : these and all like cir- 
 camstances are justly considered as throwing 
 light upon and explaining the fact of posses- 
 sion ; and render it morally certain that such 
 possession can be referrible only to a criminal 
 origin, and cannot otherwise be rationally ac- 
 counted for. 1 Benn. & H. Lead. Cr. Cas. 
 371, where this subject is fully considered. 
 
 HBCBPTUS (Lat.). In Civil Law. The 
 
 name sometimes given to an arbitrator, be- 
 cause he had been received or chosen to settle 
 the differences between the parties. Dig. 4. 
 8; Code, 2. 56. 
 
 RECESSION. A re-grant ; the act of 
 returning the title of a country to ii govern- 
 ment which formerly held it, by one which 
 
 has it at the time: as, the recession of Louisi- 
 ana, which took place by the treaty between 
 France and Spain, of October 1, 1800. See 
 2 White Rec. 516. 
 
 RECIDIVE. In French Law. The 
 state of an individual who commits a crime 
 or misdemeanor, after having once been con- 
 demned for a crime or misdemeanor ; a re- 
 lapse. 
 
 Many statutes provide that for a second offence 
 punishment shall be increased : in those cases 
 the indictment should set forth the crime or 
 misdemeanor as a second offence. 
 
 The second offence must have heen committed 
 after the conviction for the first : a defendant 
 could not be convicted of a second offence, as 
 such, until after he had suffered a punishment 
 for the first. Dalloz, Diet. 
 
 RECIPROCAL CONTRACT. In CivU 
 Law. One by which the parties enter into 
 mutual engagements. 
 
 They are divided into perfect and imper- 
 fect. When they are perfectly reciprocal, 
 the obligation of each of the parties is equally 
 a principal part of the contract, such as sale, 
 partnership, etc. Contracts imperfectly re- 
 ciprocal are those in which the obligation of 
 one of the parties only is a principal obliga- 
 tion of the contract : as, mandate, deposit, 
 loan for use, and the like. In all reciprocal 
 contracts the consent of the parties must be 
 expressed. Pothier, Obi. n. 9 ; La. Civ. 
 Code, art. 1758, 1759. 
 
 RECIPROCITY. Mutuality ; state, qua^ 
 lity, or character of that which is reciprocal. 
 
 The states of the Union are bound to many 
 acts of reciprocity. The constitution requires 
 that they shall deliver to each other fugitives 
 from justice; that the records of one state, 
 properly authenticated, shall have full credit 
 in the other states; that the citizens of one 
 state shall be citizens of any state into which 
 they may remove. Jn some of the states, as 
 in Pennsylvania, the rules with regard to the 
 effect of a discharge under the insolvent laws 
 of another state are reciprocated ; the dis- 
 charges of those courts which respect the dis- 
 charges of the courts of Pennsylvania are re- 
 spected in that state. 
 
 RECITAL. The repetition of some for- 
 mer writing, or the statement of something 
 which has been done. It is useful to explain 
 matters of fact which are necessary to make 
 the transaction intelligible. 2 Bla. Com. 
 298. 
 
 In Contracts. The party who executes 
 a deed is bound by the recitals of essential 
 facts contained therein. Comyns, Dig. Es- 
 toppel (A 2); Mete. Yelv. 227, n. ; 2 Co. 33 ; 
 8 Mod. 311. 
 
 The amount of consideration received is 
 held an essential averment, under this rule, 
 in England; 2 Taunt. 141; 5 B. & Aid. 
 606 ; 1 B. & C. 704 ; 2 B.' & Ad. .544 ; other- 
 wise in the United States; 20 Pick. 247; 5 
 Cush. 431; 6 Me. 364; 7 id. 175; 10 Vt. 
 96; 4 N. H. 229, 397; 8 Conn. 304; 14 
 .Tnl:ns. 210; 20 irf. 388 ; 7 S. & R. 311 ; 1 
 
RECITAL 
 
 518 
 
 RECOGNIZANCE 
 
 Harr. & G. 139; 4 Hen. & M. 113; 1 
 M'Cord, 514; 15 Ala. 498; lOYerg. 160; 7 
 Monr. 291. But see 1 Hawks, 64 ; 11 La. 
 -116; 2 Ohio, 350; 3 Mas. 347. 
 
 The recitals in a deed of conveyance bind 
 parties and privies thereto, whether in blood, 
 estate, or law ; 1 Greenl. Ev. § 23 ; and see 
 
 3 Ad. & E. 265 ; 7 Dowl. & R. 141 ; 4 Pet. 
 1 ; 6 id. 611. See Estoppel. The recital 
 of the payment of the consideration money is 
 evidence of payment against subsequent pur- 
 chasers from the same grantor ; 54 Penn. 19 ; 
 but not against third parties, when it is neces- 
 sary for the party claiming under the deed to 
 show full payment before receiving notice 
 of an adverse equity ; 28 Penn. 425. A deed 
 of defeasance which professes to recite the 
 principal deed must do so truly ; Cruise, Dig. 
 tit. 32, c. 7, § 28. See 3 Penn. R. 324 ; 3 Ch. 
 Cas. 101 ; Co. Litt. 352 ; Comyns, Dig. Fait 
 (E 1). 
 
 In Pleading. In Equity. 
 The decree formerly contained a recital of 
 the pleadings. This usage is now abolished ; 
 
 4 Bouvier, Inst. n. 4443. 
 
 At Law. 
 
 Recitals of deeds or specialties bind the 
 parties to prove them as recited ; Comyns, 
 Dig. Pleader (2 W. 18); 4 East, 585; 3 De- 
 nio, 356; 9 Penn. 407; Hempst. 294; 13 
 Md. 117 ; see 6 G'ratt. 130; and a variance 
 in an essential matter will be fatal ; 18 Conn. 
 395 ; even though the variance be trivial ; 
 Hempst. 294 ; -l Chitty, PL 424. The rule 
 applies to all written instruments ; 7 Penn. 
 401 ; 11 Ala. N. s. 529 ; 1 Ind. 209 ; 32 Me. 
 283 ; 6 Cush. 508 ; 4 Zabr. 218 ; 16 111. 495 ; 
 86 N. H. 252; not, it seems, where it is 
 merely brought forward as evidence, and is 
 not made the ground of action in any way ; 
 1 1 111. 40 ; 13 id. 669. And see 31 Me. 
 290. • , 
 
 Recitals of public statutes need not be made 
 in an indictment or information; Dv. 155 a, 
 346 b; Cro. 187 ; Hob. 310 ; 2 Hale, PI. Cr. 
 172; 1 AVms. Saund. 135, n. 3; nor in a 
 civil action ; 6 Ala. N. s. 289 ; 4 Blackf. 234; 
 16 Me. 69; 18 id. 58; 3 N. Y. 188; but, if 
 made, a variance in a material point will be 
 fatal; Plowd. 79; 1 Stra. .214; Dougl. 94; 
 4 Co. 48 ; Cro. Car. 135 ; 2 Brev. 2 ; 5 
 Blackf. 548; Bacon, Abr. Indictment IX. 
 See 1 Chitty, Cr. Law, 276. 
 
 Recitals of private statutes must be made ; 
 10 Wend. 75 ; 1 Mo. 593 ; and the statutes 
 proved by an exemplified copy unless ad- 
 mitted by the opposite party ; Steph. PI. 
 347; 10 Mass. 91 ; but not if a clause be in- 
 serted that it shall be taken notice of as a 
 public act; 10 Bingh. 404 ; 1 Cr. M. & R, 
 44, 47; 5 Blackf. 170 ; contra, 1 Mood. & M 
 421. Pleading a statute is merely stating the 
 facts which bring a case within it, without 
 making any mention or taking any notice of 
 the statute itself ; 6 Ired. 352 ; 7 Blackf. 359. 
 Counting upon a statute consists in making ex- 
 press reference to it, as by the words " against 
 
 the form of the statute [or ' ' by force of the 
 statute"] in such case made and provided." 
 Reciting a statute is quoting or statinir its con 
 tents ; Steph. PI. 347 ; Gould, Pl.''4th ed" 
 46, n. 3. • ■ 
 
 Recital of a record on which the action is 
 based must be correct, and a variance in a 
 material point will be fatal ; 9 Mo. 742 • 12 
 id. 484 ; 2 Paine, 209 ; 29 Ala. n. s. 112 ■ 
 30 Miss. 126 ; 17 Ark. 371 ; 19 111. 637 j 
 otherwise where it is oflered in evidence 
 merely ; 12 Ark. 760, 766, 768. 
 
 RECLAIM. To demand again ; to insist 
 upon a right ; as, when a defendant for aeon- 
 sideration received from the plaintiff has 
 covenanted to do an act, and fails to do it, 
 the plaintiff may bring covenant for the 
 breach, or assumpsit to reclaim the considera» 
 tion. 1 Caines, 47. 
 
 RECLAIMING BILL. In Scotch Law. 
 A petition for review of an interlocutor, pro. 
 nounced in a sheriff's or other inferior court. 
 It recites verbatim the interlocutor, and, after 
 a written argument, ends with a prayer for 
 the recall or alteration of the interlocutor, in 
 whole or in part. Bell, Diet. Reclaiming 
 Petition; Shaw, Dig. 394. 
 
 RECOGNITION. An acknowledgment 
 that some thing which has been done by one 
 man in the name of another was done by 
 authority of the latter. 
 
 A recognition by the principal of the 
 agency of another in the particular instance, 
 or in similar instances, is evidence of the 
 authority of the agent, so that the recognition 
 may be either express or implied. As an in- 
 stance of an implied recognition may he men- 
 tioned the case of one who subscribes pohciea 
 in the name of another, and, upon a loss hap- 
 pening, the latter pays the amount; 1 Campb. 
 43, n. a ; 4 id. 88 ; 1 Esp. Cas. 61. 
 
 RECOGNITORS. In English Law, 
 The name by which the jurors empanelled on 
 an assize are known. 17 S. & K. 174. 
 
 RECOGNIZANCE. An obligation of 
 record, entered into before a court or officer 
 duly authorized for that purpose, with a con- 
 dition to do some act reauired by law, which is 
 therein specified. 2 Bla. Com. 341. 
 
 The liability of bail above in civil cases, and 
 of the bail in all cases in criminal matters, must 
 be evidenced by a recognizance, as the sherifflias 
 no power to discharge upon a bail-bond being 
 given to him in these cases. See 4 Bla. i/Om. 
 297. 
 
 The bail-bond may be considered as furnish- 
 ing the sheriff with an excuse for not complying 
 strictly with the requirements of the wnt ; ira 
 work is performed in securing the appearance ai 
 court of the defendant. The object of a recog- 
 nizance is to secure the presence of the defenaani 
 to perform or suffer the judgment "i 'he conri. 
 In some of the United States, however, thisms- 
 tinction is not observed, but bail in the torm oi 
 a bail-bond is filed with the officer, which is »' 
 once baU below and above, being i^oM'^S^ 
 that the party shall appear and answer to tne 
 plaintiff in the suit, and abide the judgment 
 of the court. 
 
RECOGNIZANCE 
 
 519 
 
 RECOMPENSE 
 
 In civil cases they are entered into by bail, 
 conditioned that they will pay the debt, in- 
 terest, and costs recovered by the plaintiff un- 
 der certain contingencies, and for other pur- 
 poses under statutes. 
 
 In criminal cases they are either that the 
 party shall appear before the proper court to 
 answer to such charges as are or shall be made 
 against him, that he shall keep the peace or 
 be of good behavior. The presence of wit- 
 nesses may also be secured in the same man- 
 ner; 6 Hill, 506. 
 
 Who may take. In civil cases recognizances 
 are generally taken by the court; 15 Vt. 9 ; 
 7 Blackf. 221 ; or by some judge of the court 
 in chambers, though other magistrates may 
 be authorized therefor by statute, and are 
 in many of the states ; 6 Whart. 359 ; 4 
 Humphr. 213. See 2 Dev. 555 ; 3 Gratt. 82. 
 
 In criminal cases the judges of the various 
 courts of criminal jurisdiction and justices of 
 the peace may take recognizances ; 6 Ohio, 
 251; 19 Pick. 127; 14 Conn. 206; 6 Blackf. 
 284, 315; 18 Miss. 626 ; 26 Ala. N. s. 81 ; 3 
 Mich. 42 ; see 2 Curt. C. C. 41 ; the sheriff, 
 in' some cases; 5 Ark. 265; 11 Ala. 676; 
 but in case of capital crimes the power is re- 
 stricted usually to the court of supreme juris- 
 diction. See Bail. 
 
 In cases where a magistrate has the power 
 to take recognizances it is his duty to do so, 
 exercising a judicial discretion, however ; 7 
 Blackf. 611. In form it is a short memoran- 
 dum on the record, made by the court, judge, 
 or magistrate having authority, which need 
 not be signed by the party to be found ; 5 S. 
 & R. 147 ; 9 Mass. 520 ; 4 Vt. 488 ; 1 Dana, 
 523; 6 Ala. 465; 2 "Wash. C. C. 422; 6 
 Yerg. 354. It is to be returned to the court 
 having jurisdiction of the offence charged, in 
 all cases; 7 Leigh, 371; 9 Conn. 350; 4 
 Wend. 387 ; 14 Vt. 64. See 27 Me. 179. 
 
 Discharge and excuse under. A surrender 
 of the defendant at any time anterior to a 
 fixed period after the sheriff's return of non 
 est to a ca. sa.,.ov taking the defendant on a 
 CO. sa. ; 1 Hawks, 51 ; 6 Johns. 97 ; dis- 
 charges the bail (see Fixing Bail) ; as does 
 the death of the defendant before the return 
 of noil est; 1 N. & M'C. 251 ; 3 Conn. 84 ; 
 or a loss of custody and control by act of gov- 
 ernment or of law without fault of the bail 
 prior to being fixed; 3 Dev. 157; 18 Johns. 
 335 ; 5 Mete. Mass. 380 ; 2 Ga. 33 ; 14 Gratt. 
 698 ; see 8 Mass. 264 ; 5 Sneed, 623 ; 2 Wash. 
 C. C. 464 ; including imprisonment for life or 
 for a long term of years in another state ; 18 
 John. 35 ; 6 Cow. 599 ; but not voluntary en- 
 listment; 11 Mass. 146, 234; or long delay 
 in proceeding against bail ; 2 Mass. 485 ; 1 
 Root, 428; see 4 Johns. 478 ; or a discharge 
 of the principal under the bankrupt or insol- 
 vent laws of the state ; 2 Bail. 492 ; 1 Harr. 
 & J. 101, 156 ; 21 Wend. 670; 1 Mass. 292; 
 1 Harr. Del. 367, 466; 1 McLean, 226; 1 
 f-ill. 259; and see, also, 2 Penn. 492; and, 
 of course, performance of the conditions of 
 the recognizance by the defendant, discharge 
 
 the bail. And see Bail-Bond ; Fixing 
 Bail. 
 
 The formal mode of noting a discharge is 
 by entering an exoneration ; 5 Binn. 332 ; 1 
 Johns. Cas. 329; 2 id. 101, 220; 7 Conn. 
 439; 1 Gill, 529; 2 Ga. 331. 
 
 The remedy upon a recognizance is by 
 means of a scire facias against the bail ; 1 H. 
 &. G. Md. J54 ; 1 Ala. 34 ; 7 T. B. Monr. 
 130 ; 4 Bibb, Ky. 181 ; 7 Leigh, 371 ; 4 Iowa, 
 289 ; 3 Blackf. 344 ; 6 Halst. 124 ; 19 Pick. 
 127 ; 2 Harr. N. J. 446 ; or by suit, in some 
 cases; 13Wend. 33; 5 Ark. 691; 14 Conn. 329. 
 
 RECOGNIZE. To try; to examine in 
 order to determine the truth of a matter. 3 
 Sharsw. Bla. Com. App. No. III. § 4 ; Brac- 
 ton, 179. 
 
 To enter into a recognizance. 
 
 RECOGNIZEE. He for whose use a 
 recognizance has been taken. 
 
 RECOGNIZOR. He who enters into a 
 recognizance. 
 
 RECOLEMENT. In French Law. 
 The reading and re-examination by a witness 
 of a deposition, and his persistence in the 
 same, or his making such alteration as his 
 better recollection may enable him to do after 
 having read his deposition. Without such 
 re-examination the deposition is void. Po- 
 thier, Proc6d. Cr. s. 4, art. 4. 
 
 RECOMMENDATION. The giving to 
 a person a favorable character of another. 
 
 When the party giving the character has 
 acted in good faith, he is not responsible for 
 the injury which a third person, to whom such 
 recommendation was given, may have sus- 
 tained in consequence of it, although he was 
 mistaken. 
 
 But when the recommendation is know- 
 ingly untrue, and an injury is sustained, the 
 party recommending is civilly responsible for 
 damages ; 3 Term, 51 ; 7 Cra. 69 ; 7 Wend. 
 1 ; 14 id. 126 ; 6 Penn. 310 ; whether it was 
 done merely for the purpose of benefiting the 
 party recommended or the party who gives 
 the recommendation. See Pkivileged Com- 
 
 MUKICATIONS. 
 
 And in case the party recommended was a 
 debtor to the one recommending, and it was 
 agreed, prior to the transaction, that the for- 
 mer should, out of the property to be obtained 
 by the recommendation, be paid, or in case 
 of any other species of collusion to cheat the 
 person to whom the credit is given, they may 
 both be criminally prosecuted for the conspi- 
 racy. See Charactkk ; Fell, Guar. c. 8 ; 6 
 Johns. 181 ; 13 id. 224 ; 1 Day, 22 ; 5 Mart. 
 La. N. s. 443. 
 
 RECOMFENSATION. In Scotch 
 Law. An allegation by the plaintiff of com- 
 pensation on his part made in answer to a 
 compensation or set-off pleaded by the defen- 
 dant in answer to the plaintiffs demand. 
 
 RECOMPENSE. A reward for ser- 
 vices ; remuneration for goods or other pro- 
 perty. 
 
RECOMPENSE OF RECOVERY 520 RECORD ARI FACIAS LOQUELAM 
 
 In maritime law there is a distinction between 
 recompense and restitution. When goods have 
 been lost by jettison, if at any subsequent period 
 of the voyage the remainder of the cargo be lost, 
 the owner of the goods lost by jettison cannot 
 claim restitution from the owners of the other 
 goods ; but in the case of expenses incurred with 
 a view to the general benefit, it is clear that they 
 ought to be made good to the party, whether he 
 be an agent employed by the master in a foreign 
 port, or the ship-owner himself. 
 
 RECOiaPENSE OF RECOVER'X' IN 
 VAIiUE. A phrase applied to the matter 
 recovered in a common recovery, after the 
 vouchee has disappeared and judgment is 
 given for the demandant. 2 Bouvier, Inst. 
 II. 2093. 
 
 RECOITCILIATIOIT. The act of bring- 
 ing persons to agree together, who before had 
 had some diiferenoe. 
 
 A renewal of cohabitation between husband 
 iind wife is proof of reconciliation ; and such 
 reconciliation destroys the effect of a deed of 
 separation ; 4 Eccl. 238. 
 
 RECONDtrCTlON. In CivU Law. A 
 renewing of a former lease ; relocation. Dig. 
 19. 2. 13. 11 ; Code Nap. art. 1737-1740. 
 
 RECONSTRUCTIOIT. This term has 
 been widely used to describe the measures 
 adopted by congress, at the close of the civil 
 war in the United States, to regulate the ad- 
 mission of the representatives from the states 
 lately in rebellion, the re-establishment of the 
 Federal authority within their borders, and the 
 changes in their internal government, in order 
 to adapt them to the condition of affairs 
 brought about by the war. See 1 Am. L. Rev. 
 238. 
 
 RECONVENTION. InCIvULaw. An 
 action brought by a party who is defendant 
 against the plaintiff before the same judge. 
 4 Mart. La. N. s. 439. To entitle the defen- 
 dant to institute a demand in reconvention, it 
 is requisite that such demand, though diffe- 
 rent from the main action, be nevertheless 
 necessarily connected with it and incidental 
 to the same. La. Code of Pr. art. 375 ; 11 
 La. 309; 7 Mart. La. N. s. 282; 8 id. 516. 
 The reconvention of the civil law was a spe- 
 cies of cross-bill. Story, Eq. Plead. § 402. 
 
 See CONVENTIO. 
 
 RECORD. A written memorial made by 
 a public officer authorized by law to perform 
 that function, and intended to serve as evi- 
 dence of something written, said, or done. 6 
 Call, 78 ; 1 Dana, 595. 
 
 Records may be either of legislative or 
 judicial acts. Memorials of other acts are 
 sometimes made by statutory provisions. 
 
 Legislative acts. The acts of eongrgss and 
 of the several legislatures are the highest kind 
 of records. The printed journals of con- 
 gress have been so considered ; 1 Whart. 
 Dig. Evidence, ^\. 112. And see Dougl. 598 ; 
 Cowp. 17. 
 
 The proceedings of the courts of common 
 law are records. But every minute made by 
 a clerk of a court for his own future guidance 
 
 in making up his record is not a record • 4 
 Wash. C. C. 698. See 10 Penn. 157' , 
 Pick. 448; .4 N. H. 450; 6 Ohio St. 5 J 
 3Wend.26y; 2 Vt. 573 ; 5 Day, 363; 3 T 
 B. Monr. 63. j< , n x. 
 
 Proceedings in courts of chancery are said 
 not to be, strictly speaking, records ; but thcv 
 are so considered ; Gresl. Ev. loi. And see 
 8 Mart. La. n. s. 303; 1 Rawle, 381 • n 
 Yerg. 142; 1 Pet. C. C. 352. ' 
 
 Statutes of the several states have made the 
 enrolment of certain deeds and other docu- 
 ments necessary in order to perpetuate the 
 memory of the facts they contain, and de- 
 clared that the copies thus made should have 
 the effect of records. 
 
 The fact of an instrument being recorded is 
 held to operate as a constructive notice to all 
 subsequent purchasers of any estate, legal or 
 equitable, in the same property; 1 Johns. 
 Ch. 394. And even if not recorded, if it 
 has been filed for record and its existence is 
 necessarily implied from the existence of 
 another instrument already of record, pur- 
 chasers will be deemed to have had notice of 
 its existence ; 14 Cent. L. J. 374. 
 
 But all conveyances and deeds which may 
 be de facto recorded are not to be considered 
 as giving notice : in order to have this effect, 
 the instruments must be such as are author- 
 ized to be recorded, and the registry must 
 have been made in compliance with the law, 
 otherwise the registry is to be treated as a 
 mere nullity, and it will not affect a subse- 
 quent purchaser or incumbrancer unless he 
 has such actual notice as would amount to a 
 fraud; 2 Sch. & L. 68; 4 Wheat. 466; 
 1 Binu. 40; 1 Johns. Ch. 300; 1 Story, 
 Eq. Jur. §§ 403, 404 ; 6 Me. 272; but where 
 a statute makes it discretionary to record an 
 instrument, the effect of recording is in no 
 wise lessened, but is deemed a constructive 
 notice the same as if the recording had been 
 required ; 77 Penn. 373 ; 25 Alb. L. J. 249. 
 Where a proper book is kept for the purpose 
 of showing when an instrument is left for 
 record, delay or negligence in entering it in 
 other books will not affect it as a lien upon 
 the property; 82 Penn. 116. See as to 
 recording acts ; 3 Law Mag. & Kev. 4th sec. 
 412 ; Judge Cooley's Paper in 4th Eep. Am. 
 Bar Association (1881) ; Lecture of W. H. 
 Rawle before the Law Dept. Univ. of Pa., 
 1881. 
 
 As to giving full faith and credit to judicial 
 proceedings, under the U. S. Constitution, 
 see Judicial Proceedings. 
 
 RECORD OP NISI PRITJS. In Eng- 
 lish Law. A transcript from the issue-roll : 
 it contains a copy of the pleadings and issue. 
 Steph. PI. 105. 
 
 RECORDARI FACIAS LOQUE- 
 LAM. In English Practice. A writ com- 
 manding the sheriff that he cause the plamt 
 to be recorded which is in his county, without 
 writ, between the parties there named, ot 
 the cattle, goods, and chattels of the com- 
 
KECORDATUR 
 
 521 
 
 RECOUPEMENT 
 
 ijlainant taken and unjustly distrained as it is 
 said, and that he have the said record before 
 the court on a day therein named, and that 
 he prefix the same day to the parties, that 
 then they may be there ready to proceed in 
 the same plaint. 2 Sell. Pr. 166. Now 
 obsolete. 
 
 RECORD ATITR (Lat.). An order or 
 allowance that the verdict returned on the 
 nisi prius roll be recorded. Bacon, Abr. 
 Arbitration, etc., D. 
 
 RECORDER. A judicial officer of some 
 cities, possessing generally the powers and 
 authority of a judge. 3 Yeates, 300; 4 Dall. 
 299. But see 1 Const. So. C. 45. 
 
 Anciently, recorder signified to recite or 
 testify on recollection, as occasion might re- 
 quire, what had previously passed in court ; 
 and this was the duty of the judges, thence 
 called recordeuj-s. Steph. PI. note 11. 
 
 An ofiicer appointed to make record or en- 
 rolment of deeds and other legal instruments 
 authorized by law to be recorded. 
 
 RECORDING DEEDS. See Record. 
 
 RECOUPEMENT (Fr. recouper, to cut 
 again). The right of the defendant, in the 
 same action, to claim damages from the plain- 
 tiff, either because he has not complied with 
 some cross-obligation of the contract upon 
 which he sues, or because he has violated some 
 duty which the law imposed upon him in the 
 making or performance of that contract. 4 
 Wend. N. Y. 483 ; 8 id. 109 : 10 Barb. N. 
 Y. 55; 13 N. Y. 151 ; 3 Ind. 72, 265 ; 4 id. 
 533; 7 id. 200; 9 id. 470; 7 Ala. N. 8. 
 753; 13 id. 587; 16 id. 221; 27 id. 574; 
 12 Ark. 699; 16 tU 97; 17 id. 270; 6 B. 
 Monr. 528; 13 id. 239 ; 15i(i. 454; 3 Mich. 
 281; 4 id. 619; 39 Me. 382; 16 111. 495; 
 11 Mo. 415 ; 18 id. 368 ; 25 id. 430. 
 
 This is not a new title in the law, the term oc- 
 eurring from the 14th to the 16th centuries, al- 
 though it seems of late years to have assumed a 
 new signification, and the present doctrine is 
 said to be still in its infancy ; 7 Am. L. Kev. 389. 
 Originally it implied a mere deduction from the 
 claim of the plaintiflT, on account of payment in 
 whole or in part, or a former recovery, or some 
 analogous fact ; 3 Co. 65 ; 4 id. 94 ; 5 id. 2, 31 ; 
 11 id. 51, 52. See note to Icily vs. Grew, 6Nev. 
 & M. 467 ; Viner, Abr. Discount, pl^ 3, 4, 9, 10 ; 
 28 Vt. 413. This meaning has been retained in 
 many modern eases, but under the name of de- 
 duction or reduction of damages ; 11 East, 232 ; 
 IManle & S. 318, 323 ; 5 id. 6, 10 ; 4 Burr. 3133 ; 
 a M. & G. 241 ; 7 M. & W. 314 ; 13 id. 772 ; 
 2 Taunt. 170 ; 2 Term, 97 ; 1 Stark. 343 ; 20 
 Conn. 204 ; 21 Wend. 610 ; 20 id. 267 ; 24 id. 
 304; 3 Dana, 489; 6 Mass. 30; 14 Pick. 356; 
 18 id. 283 ; 3 Mete. Mass. 9 ; 13 id. 269. The 
 word recoupement has also been applied to cases 
 i very similar to the above ; 4 Denio, 337 ; 20 
 Wend. 267. See 7 Am. L. Rev. 389, where re- 
 coupement is fully treated. 
 
 Kecoupement as now understood seems to cor- 
 respond with the Beeonvention of the civil law, 
 sometimes termed demandes incidentes by the 
 French writers, in which the reus, or defendant, 
 was permitted to exhibit his claim against the 
 plaintiff for allowance, provided It arose out of, 
 or was incidental to, the plaintiff's cause of ac- 
 tion. (Euvres de Pothier, 9 vol. p. 39 ; 1 White, 
 
 New Rec. 285; Voet, tit. de Judiciis, n. 78; 
 La. Code Pr. art. 375 ; 4 Mart. N. s. 439 ; 6 id. 
 671 ; 7 id. 517 ; 10 La. 185 ; 14 id. 385 ; 12 La. 
 An. 114, 170 ; 6 Tex. 406 ; 2 Hennen, Dig. lie- 
 coupement, pi. 8, &. 
 
 In England, as well as in some of the 
 United States, the principles of recoupement 
 as defined above have been recognized only 
 in a restricted form. Under the name of re- 
 duction of damages, the defendant is allowed 
 to show all such violations of his contract by 
 the plaintiff' as go to render the consideration 
 less valuable, but he is compelled to resort to 
 an independent action for any immediate or 
 consequential damages affecting him in other 
 respects ; 8 M. & W. 858 ; 1 Stark. 107, 274 ; 
 3 Campb. 450; 1 C. & P. 384; 2 id. 113; 6 
 Barb. 387 ; 6 B. Monr. 528; 12 Conn. 129; 
 11 Johns. 547; 14 id. 377; 12 Pick. 330; 
 22 id. 512; 8 Humphr. 678; 9 How. 231. 
 But these restrictions are all gradually disap- 
 pearing, and the law is assuming the form ex- 
 pressed in the cases cited under the definition 
 of modern recoupement, the main reason up- 
 on which the doctrine now rests being the 
 avoidance of circuity of action. 
 
 There are some limitations and qualifica- 
 tions to the law of recoupement, as thus es- 
 tablished. Thus, it has been held that the 
 defendant is not entitled to any judgment for 
 tTie excess his damages in recoupement may 
 have over the plaintiff's claim, nor shall he 
 be allowed to bring an independent action for 
 that excess; 6 N. H. 481 ; 14 111. 424; 3 
 Mich. 281 ; 12 Ala. n. s. 643 ; 3 Hill, N. Y. 
 171 ; 17 Ark. 270. If recoupement is put 
 upon the ground of a cross-action and not a 
 mere defence for the reduction of damages, 
 there is no reason why ho should not have 
 judgment to the extent of his injury. Such 
 seems to be the practice in Louisiana, under 
 the name of reconvention; 12 La. An. 170; 
 and such will probably be the practice under 
 those systems of pleading which authorize 
 the court, in any action which requires it, to 
 grant the defendant affirmative relief; 2 E. 
 D. Sm. 317. See, also, 3 W. & S. 472 ; 17 
 S. & R. 385 ; 12 How. Pr. 310. 
 
 The damages recouped must be for a breach 
 of the same contract upon which suit is brought; 
 3 Hill, N. Y. 171 ; 2 Wend. 240; 4 Sandf. 
 147 ; 10 Ind. 329. They may be for a tort ; 
 but it seems that the tort must be a violation 
 of the contract, and they are to be measured 
 by the extent of this violation, and no allow- 
 ance taken of malice; 10 Barb. 55; 17 111. 
 38 ; 4 S. & R. 249 ; 5 id. 122 ; 3 Binn. 169. 
 The language of some cases would seem to 
 imply that recoupement may be had for dam- 
 ages connected with the subject-matter or 
 transaction upon which the suit is brought, 
 but which do not constitute a violation of any 
 obligation imposed by the contract, or of any 
 duty imposed by the law in themaking or per- 
 formance of the contract; 14 111. 424; 17 id. 
 38. But these cases will be found to be decided 
 with reference to statutes of counter-claim. 
 And even in the construction of such statdte» 
 
RECOUPEMENT 
 
 RECOVERY 
 
 it has been doubted whether it is not better to 
 confine the damages to violations of the con- 
 tract ; 8 Ind. 399 I 2 Sandf. 120. 
 
 It is well established, in the absence of 
 statutory provisions, that it is optional with 
 the defendant whether he shall plead his cross- 
 claim by way of recoupement, or resort to 
 an independent action ; 14 Johns. 379 ; 18 
 Wend. 277; 3 Sandf. 743; 12 Ala. N. 8. 
 643 ; 3 Ind. 59 ; 4 id. 585; 21 Mo. 415. 
 Nor does the fact of a suit pending for the 
 same damages estop him from pleading them 
 in recoupement, although he may be com- 
 pelled to choose upon which action he shall 
 proceed; 3 E. D. Sm. 135; 1 W. & S. 58; 
 
 5 Watts, 116. Payment after action brought, 
 although never pleadable in answer to the ac- 
 tion, was usually admitted in reduction of 
 damages ; 4 N. H. 557 ; 6 Ind. 26 ; 2 Bingh. 
 N. c. 88; 7 C. & P. 1 ; 1 M. & W. 463. 
 But the defendant can never recoup for dam- 
 ages accruing since action brought ; 20 E. L. 
 
 6 E. 277 ; 4 Barb. 256 ; 2 Binn. 287. 
 
 It has been maintained by some courts that 
 the law of recoupement is not applicable to 
 real estate. Accordingly, they have denied 
 the defendant the right, when sued for the 
 purchase-money, to recoup for a partial fail- 
 ure of title. 11 Johns. 50 ; 2 Wheat. 13 ; 12 
 Ark. 709; 17 id. 254. But most of these 
 cases will be found denying him that righl; 
 only before eviction. A confusion has been 
 introduced by regarding failure of title and 
 failure of consideration as convertible terms. 
 The consideration of a deed without covenants 
 is the mere delivery of the instrument ; Rawle, 
 Gov. 588. A failure of title in such case is 
 not a failure of consideration, and it therefore 
 affords no ground for recoupement. The con- 
 sideration of a deed with covenants does not 
 fail till the covenantee has suffered damages 
 on the covenants, which in most cases does 
 not happen till eviction, either actual or con- 
 structive. After this has happened, his right 
 to recoup is now pretty generally admitted. 
 This is nothing more than allowing him to 
 recoup as soon as he can sue upon the cove- 
 nants ; 21 Wend. 131 ; 25 id. 107 ; 19 Johns. 
 77 ; 13 N. Y. 151 ; 8 Barb. 11 ; 3 Pick. 459 ; 
 14 id. 293 ; G Gratt. 305 ; Dart, Vend. 381 ; 
 Rawle, Gov. 583. 
 
 It has been more generally admitted that 
 where there is a failure of the consideration as 
 to the quantity or quality of the land, the pur- 
 chaser may recoup upon his covenants; 12 
 Ark. 699 ; 17 id. 254 ; 2 Kent, 470 ; 18 Mo. 
 368 ; 20 id. 443. 
 
 Under the common-law system of pleading, 
 the evidence of a recoupement, if going to a 
 total failure of consideration, might be given 
 under the general issue without notice, but if 
 it went only to a partial failure, notice was 
 required to prevent surprise; 6 Barb. 386; 7 
 id. 53 ; 2 N. Y. 157 ; 6 N. H. 497 ; 3 Ind. 
 265; 6 id. 489. This is the only way it 
 could bo admitted, for it could not be pleaded, 
 a partial defence constituting neither a plea 
 ip bar nor in abatement. Under a notice it 
 
 was admitted to aid in sustaining the general 
 denial. 
 
 But under the new systems of praetioe fash- 
 ioned more or less after the New York Code" 
 there being no general issue to which the no! 
 tice was subsidiary, the defendant is required 
 to plead his defence whether it is in answer of 
 the whole demand or only in reduction of 
 damages; 6 How. Pr. 433 ; 8 id. 441 • n 
 N. Y. 352 ; 16 id. 297 ; 12 Wend. 246; 18 
 Mo. 368. 
 
 The effect to be given to the law of re- 
 coupement will depend, in many of Ihe states, 
 upon the statutes of counter-claim and offset 
 in force. In Missouri, for instance, it is pro- 
 vided that if any two or more persons are 
 mutually indebted in any manner whatever 
 and one of them commence an action against 
 the other, one debt may be set off against the 
 other, although such debts are of a different 
 nature ; 1 R. S. § 3867. The term counter- 
 claim under this statute is held to include 
 both set-off and recoupement; 49 Mo. 670; 
 the distinction between the two terms being 
 important only from the fact that the former 
 must arise from contract, and can only be 
 used in an action founded on contract ; while 
 the latter may spring from a wrong provid#' 
 it arose out of the transaction set forth in ttf 
 petition, or was connected with thfe subject of 
 the action ; id. In the case of actions arising 
 out of contracts, it has been held that noth- 
 ing would be allowed by way of recoupement 
 unless it worked a violation of some obliga- 
 tion imposed by the contract, or some dutj- 
 imposed by the law in the making or perform- 
 ance of it; 2 Sandf. 120; 8 Ind. 399. 
 
 RECOVERER. The demandant in a 
 common recovery, after judgmont has been 
 given in his favor, assumes the name of re- 
 coverer. 
 
 RECOVERY. The restoration of a for- 
 mer right, by the solemn judgment of a court 
 of justice. 3 Murph. 169. 
 
 A common rccouery is a judgment obtained 
 in a fictitious suit, brought against tlie tenant 
 of the freehold, in consequence of a default 
 made by the person who is last vouched to 
 warranty in such suit. Bacon, Tracts, 148. 
 
 A true recovery, usually known by thename 
 of recovery simply, is the procuring a former 
 right by the judgment of a court of competent 
 jurisdiction: as, for example, when judgment 
 is given in favor of the plaintiff when he 
 seeks to recover a thing or a right. 
 
 Common recoveries are considered as mere 
 forms of conveyance or common assurances ; al- 
 though a common recovery is a fictitious suit, 
 yet the same mode of proceeding must be pur- 
 sued, and all the forms strictly adhered to, 
 which are necessary to be observed in an adver- 
 sary suit. The first thing, therefore, neceesary 
 to be done in suffering a common recovery u 
 that the person who is to be the demandant, ana 
 to whom the lands are to be adjudged, shoum 
 sue out a writ or praecipe against the tenant oi 
 the freehold; whence such tenant is usuauy 
 called tlie tenant to ihepracipe. In obedience 
 to this writ the tenant appears in court, eitberm 
 
 J J 
 
RECREANT 
 
 523 
 
 RECUSATION 
 
 person or by his attorney j but, instead of de- 
 fending the title to tlie land himself, he calls on 
 8ome other person, who upon the original pur- 
 chase is supposed to have warranted the title, 
 and prays that the person may be called in to 
 defend the title which he warranted, or other- 
 wise to give the tenant lands of equal value to 
 those he shall lose by the defect of his warranty. 
 This is called the voucher vucatia, or calling to 
 warranty. The person thus called to warrant, 
 who 18 usually called the vouchee, appears 
 in court, is Impleaded, and enters into the war- 
 ranty, by which means he takes upon himself 
 the defence of the land. The defendant then de- 
 sires leave of the court to imparl, or confer with 
 the vouchee in private, which is granted of 
 course. Soon after the demandant returns into 
 court, but the vouchee disappears or makes de- 
 fault, in consequence of which it is presumed by 
 the court that he has no title to the lands de- 
 manded in the writ, and therefore cannot defend 
 them ; whereupon judgment is given for the de- 
 mandant, now called the recoverer, to recover 
 the lands in question against the tenant, and for 
 the tenant to recover against the vouchee lands 
 of equal value in recompense for those so war- 
 ranted by him, and now lost by his default. 
 This is called the recompense of recovery in 
 value ; but as it is customary for the crier of the 
 court to act, who is hence called the common 
 vouchee, the tenant can only have a nominal and 
 not a real recompense for the land thus recovered 
 against him by the demandant. A writ of habere 
 facias is then sued out, directed to the sheriff of 
 the county in which the landsthus recovered are 
 situated ; and on the execution and return of 
 the writ the recovery is completed. The recovery 
 here described is with single voucher ; but a re- 
 covery may be, and is frequently. Buffered with 
 double, treble, or further voucher, as the exi- 
 gency of the case may require, in which case 
 there are several judgments against the several 
 vouchees. 
 
 Common recoveries were invented by the ec- 
 clesiastics in order to evade the statute of mort- 
 main, by which they were prohibited from pur- 
 chasing, or receiving under the pretence of a free 
 gift, any land or tenements whatever. They 
 have been used in some states for the purpose of 
 breaking the entail of estates. See, generally, 
 Cruise, Digest, tit. 36 ; 2 Wms. Saund. 43, n. 7 ; 
 
 4 Kent, 487 ; Pigot, Comm. Rec. passim. 
 
 All the learning in relation to common re- 
 coveries is nearly obsolete, as they are out of use. 
 Key, a French writer, in his work Des Institu- 
 tions Judiciaires de I'Angleterres, tom. ii. p. 
 831, points out what appears to him the absurdity 
 of acommon recovery. As to common recoveries, 
 see 3 S. & E. 435 ; 9 id. 330; 1 Teates, 244 ; 4 
 id. 413 ; 1 Whart. 139, 151 ; 2 Rawle, 168 ; 6 Penn. 
 45; 2 Halst. 47; 5 Mass. 438; 6 id. 328; 8 id. 
 34; 3 Harr. &J.292. 
 
 RECREANT. A coward; a poltroon. 
 
 5 Bla. Com. 340. 
 
 RECRIMINATION. In Criminal Law. 
 
 An accusation made by a person accused 
 against his accuser, either of having com- 
 mitted the same oiTence or another. 
 
 In general, recrimination does not excuse 
 'he person accused nor diminish his punish- 
 ment, because the guilt of another can never 
 excuse him. But in applications for divorce 
 on the ground of adultery, if the party de- 
 ftndiint can prove that the plaintiii' or com- 
 plainant has been guilty of the same offence, 
 the divorce will not be granted; 1 Hagg. 
 
 Cons. 144 ; 4 Eccl. 360. The laws of Penn- 
 sylvania contain a provision to the same 
 effect. See 1 Hagg. Eccl. 790; 3 id. 77; 1 
 Hagg. Cons. 147; 2 id. 297; Shelf. Marr. 
 & Div. 440 ; Dig. 24. 3. 39 ; 48. 3. 13. 5 ; 1 
 Add. Eccl. 411; Compensation; Con- 
 donation; DiVOBCE. 
 
 RECTIFIER. As used in the internal 
 revenue laws, this term is not confined to a 
 person who runs spirits through charcoal ; but 
 is applied to any one who rectifies or purifies 
 spirits in any manner whatever, or who makes 
 a mixture of spirits with anything else, and 
 sells it under any name ; 3 Ben. 73 ; B. c. 2 
 Am. L. T. Rop. 23. 
 
 RECTO (Lat.). Right. Breve de rectW, 
 writ of right. 
 
 RECTOR. In Ecclesiastical Law. One 
 who rules or governs : a name given to certain 
 officers of the Roman church. Dict.Canonique. 
 
 In English Law. He that hath full pos- 
 session of a parochial church. A rector (or 
 parson) has for the most part the whole right 
 to all the ecclesiastical dues in his parish ; 
 where, as in theory of law, a vicar has an 
 appropriator over him, entitled to the best 
 part of the profits, to whom the vicar is, as it 
 were, perpetual curate, with a standing salary ; 
 Cowel; 1 Bla. Com. 384; 2 Steph.. Com. 
 677. 
 
 RECTORY. In English Law. Corpo- 
 real real property, consisting of a church, 
 glebe-lands, and tithes. 1 Cnltty, Pr. 163. 
 
 RECTUS IN CURIA (Lat. right in 
 court). The condition of one who stands at 
 the bar, against whom no one objects any 
 offence or prefers any charge. 
 
 When a person outlawed has reversed his 
 outlawry, so that he can have the benefit of 
 the law, he is said to be rectus in curia. Ja- 
 cob, Law Diet. 
 
 RECUPERATORXiS (Lat.). In Ro- 
 man Law. A species of judges originally 
 established, it is supposed, to decide contro- 
 versies between Roman citizens and strangers 
 concerning the right to the possession of pro- 
 perty requiring speedy remedy, but gradually 
 extended to questions which might be brought 
 before ordinary judges. 
 
 After the enlargement of their powers, the dif- 
 ference between them and judges, it is supposed, 
 was simply this : — if the prsetor named three 
 judges, he called them remperatores ; if one, he 
 called him. judex. But opinions on this subject 
 are very various. Colman, De Somano judieio 
 recuperatorio. Cicero's oration pro Ccecin. 1, 3, 
 was addressed to revuperatores. 
 
 RECUSANTS. In EngUsh Law. Per- 
 sons who wilfully absent themselves from 
 their parish church, and on whom penalties 
 were imposed by various statutes passed 
 during the reigns of Elizabeth and James I. ; 
 Whart. Diet. 
 
 Those persons who separate from the church 
 established by law. Termes de la Ley. 
 
 RECUSATION. In Civil Law. A 
 plea or exception by which the defendant re- 
 
RED BOOK 
 
 524 
 
 REDUNDANCY 
 
 quires that the judge having jurisdiction of 
 the cause should abstain from deciding, upon 
 the ground of interest, or for a legal objection 
 to his prejudice. 
 
 A recusation is not a plea to the jurisdiction of 
 the court, but simply to the person of the judge. 
 It may, however, extend to all the judges, as 
 when the party has a suit against the whole court. 
 Pothier, Procid. Civ. ISre part. ch. 2, s. 5. It is 
 a personal challenge of the judge for cause. See 
 3 La. 390 ; 6 id. X34. 
 
 The challenge of jurors. La. Code Pract. 
 art. 499, 500. An act, of what nature soever 
 it may be, by which a strange heir, by deeds 
 or words, declares he will not be heir. Dig. 
 
 Fi. 2. 95. See, generally, 1 Hopk. Ch. 1 ; 
 Mart. La. 292. 
 
 RED BOOK OF THE EXCHEQUER. 
 
 An ancient record, wherein are registered the 
 holders of lands per baroniam in the time of 
 Henry III., the number of hides of land in 
 certain counties before the conquest, and the 
 ceremonies on the coronation of Eleanor, wife 
 of Henry III. : compiled by Alexander de 
 Swenford, archdeacon of Salop and treasurer 
 of St. Paul's, who died in 1246. SI Hen. III.; 
 Jacob, Law Diet. ; Cowel. 
 
 REDDENDO SINGULA SINGULIS 
 (Lat.). Referring particular things to par- 
 ticular persons. For example : when two 
 descriptions of property are given together in 
 one mass, both the next of kin and the heir 
 cannot take, unless in cases where a construc- 
 tion can be made reddendo singula singulis, 
 that the next of kin shall take the personal 
 estate, and the heir-at-law the real estate. 14 
 Ves. 490. See 11 East, 513, n.; Bacon, Abr. 
 Conditions (L). 
 
 REDDENDUM (Lat.). That clause in a 
 deed by which the grantor reserves something 
 new to himself out of that which he granted 
 before. It usually follows the tenendum, and 
 is generally in these words, "yielding and 
 paying." In every good reddendum or re- 
 servation these things must concur : namely, 
 it must be in apt words ; it must be of some 
 other thing issuing or coming out of the thing 
 granted, and not a part of the thing itself nor 
 of something issuing out of another thing ; it 
 must be of a thing on which the grantor may 
 resort to distrain ; it must be made to one of 
 the grantors, and not to a stranger to the deed. 
 See 2 Bla. Com. 299 ; Co. Litt. 47 ; Shepp. 
 Touchst. 80 ; Cruise, Dig. tit. 32, c. 24, s. 1 ; 
 Dane, Abr. Index. 
 
 REDDIDIT SE (Lat. he has rendered 
 himself). In English Practice. An en- 
 dorsement made on the bail-piece when a 
 certificate has been made by the proper officer 
 that the defendant is in custody. Comyns, 
 Dig. Bail (Q. 4). 
 
 REDEMPTION (Lat. re, red, back, 
 emptio, a purchase). 
 
 A purchase back by the seller from the 
 buyer. It is applied to denote the perform- 
 ance of the conditions upon performance of 
 which a conditional sale is to become ineffec- 
 
 tive as a transfer of title, or, more strictly 
 a right to demand a reconveyance becomes 
 vested in the seller. In the case of mort 
 gages, this right is a legal right until a breach 
 of conditions, when it becomes an equitable 
 right, and is called the equity of redemption 
 See Mortgage ; Equity op Redemption! 
 REDEMPTIONES (Lat.). Heavy fines 
 Distinguished from Misekicorma, which 
 see. 
 
 REDHIBITION. In CivU Law. The 
 
 avoidance of a sale on account of some vice 
 or defect in the thing sold, which renders its 
 use impossible or so inconvenient and imper- 
 fect that it must be supposed that the buyer 
 would not have purchased it had he known 
 of the vice. La. Civ. Code, art. 2496. 
 
 This is essentially a civil-law right. The 
 effect of the rule expressed by the maxim 
 caveat emptor is to prevent any such right 
 at common law, except in cases of express 
 warranty. 2 Kent, 374; Sugd. Vend. 222. 
 
 REDHIBITORY ACTION. In Civil 
 La'W. An action instituted to avoid a sale 
 on account of some vice or defect in the thing 
 sold which renders its use impossible or so 
 inconvenient and imperfect that it must be 
 supposed the buyer would not have purchased 
 it had he known of the vice. La. Civ. Code, 
 2496. 
 
 REDITUS ALBI (Lat.). A rent pay- 
 able in money ; sometimes called white rent, 
 or blanche farm. See Ai.ba Eirma. 
 
 REDITUS NIGRI (Lat.). A rent pay- 
 able in grain, work, and the like : it was also 
 called black mail. This name was given to 
 it to distinguish it from reditus albi, which 
 was payable in money. 
 
 REDOBATORES (L. Lat.). Those that 
 buy stolen cloth and turn it into some other 
 color or fashion, that it may not be recog- 
 nized. Redubbers, g. v. Barrington, Stat. 2d 
 ed. 87, n. ; Co. 3d Inst. 134; Britton, c. 29. 
 
 REDRAFT. In ConuneTCial Law. A 
 bill of exchange drawn at the place where 
 another bill was made payable and where it 
 was protested, upon the place where the first 
 bill was drawn, or, when there is no regular 
 commercial intercourse rendering that prac- 
 ticable, then in the next best or most direct 
 practicable course. 1 Bell, Com. 406. See 
 Re-Exchange. 
 
 REDRESS. The act of receiving satis- 
 faction for an injury sustained. For the mode 
 of obtaining redress, see Remedies; 1 Chitty, 
 Pr. Anal. Table. 
 
 REDUBBERS. In Criminal Law. 
 Those who bought stolen cloth and dyed it ot 
 another color to prevent its being feniibea 
 were anciently so called. Co. 3d Inst. 134. 
 See Redobatores. 
 
 REDUITOANCY. Matter introduced in 
 an answer or pleading which is foreign to the 
 bill or articles. . , . 
 
 The respondent is not to insert in bis »"■ 
 
RE-ENTRY 
 
 525 
 
 RE-EXAMINATION 
 
 swer any matter foreign to the articles he is 
 called upon to answer, although such matter 
 may be admissible in a plea ; but he may, in 
 his answer, plead matter by way of explana- 
 tion pertinent to the articles, even if such 
 matter shall be solely in his own knowledge, 
 and to such extent incapable of proof ; or he 
 may state matter which can be substantiated 
 by witnesses ; but in this latter instance, if 
 such matter be introduced into the answer, 
 and not afterwards put in the plea, or proved, 
 the court will give no weight or credence to 
 such part of the answer. Per Lushington, 3 
 Curt. Eccl. 543. _ 
 
 A material distinction is to be observed be- 
 tween redundancy in the allegation and re- 
 dundancy in the proof. In the former case, 
 a variance between the allegation and the 
 proof will be fatal, if the redundant allega- 
 tions are descriptive of that which is essential. 
 But in the latter case, redundancy cannot 
 vitiate because more is proved than is alleged, 
 unless the matter superfluously proved goes to 
 contradict some essential part of the allega- 
 tion ; 1 Greenl. Ev. § 67 ; 1 Stark. Ev. 401. 
 
 RE-ENTRY. The act of resuming the 
 possession of lands or tenements in pursuance 
 of a right which the party exercising it re- 
 served to himself when he quit his former 
 
 Conveyances in fee reserving a ground-rent, 
 and leases for a term of years, usually contain 
 a clause authorizing the proprietor to re-enter 
 in case of the non-payment of rent, or of the 
 breach of some covenant in the lease, which 
 forfeits the estate. Without such reservation 
 he would have no right to re-enter for the 
 mere breach of a covenant, although he may 
 do so upon the breach of a condition which, 
 by its terms, is to defeat the estate granted ; 
 3 Wils. 127 ; 2 Bingh. 13 ; 1 M. & Ry. 694 ; 
 Tayl. Landl. & T. § 290. 
 
 When a landlord is about to enforce his 
 right to re-enter for the non-payment of rent, 
 he must make a specific demand of payment, 
 and be refused, before the forfeiture is com- 
 plete, unless such demand has been dis- 
 pensed with by an express agreement of the 
 parties; 18 Johns. 451; 8 Watts, 51; 6 S. & 
 R. 151; 13 Wend. 524; 6 Halst. 270; 7 
 Term, 117; 5 Co. 41. In the latter case, a 
 mere failure to pay, without any demand, 
 constitutes a sufficient breach, upon which an 
 entry may at any time subsequently be made ; 
 2N. Y. 147; 2N. H. 164; 2Dousl. 477; 
 2 B. & C. 490. 
 
 The requisites of a demand upon which to 
 predicate a forfeiture for the non-payment of 
 rent, at common law, are very strict. It must 
 be for the payment of the precise sura due up- 
 on the day when, by the terms of the lease. 
 It becomes payable ; if any days of grace are 
 allowed for payment, then upon the last day 
 
 of 
 
 grace; Co. Litt. 203; 7 Term, 117 
 
 Comyns, Dig. Rent (D 7) ; 2 N. Y. 147 ; at 
 a convenient time before sunset, while there 
 IS light enough to see to count the money ; 17 
 ■Johns. N.Y. 66; 1 Saund. 287; at the place 
 
 appointed for payment, or if no particular 
 place has been specified in the lease, then at 
 the most public place on the land, which, if 
 there be a dwelling-house, is the front door ; 
 4 Wend. 313 ; 18 Johns. 450; 1 How. 211 ; 
 Co. Litt. 202 a ; notwithstanding there be no 
 person on the land to pay it; Bacon, Abr. 
 Rent (I) ; and if the re-entry clause is 
 coupled with the condition that no sufficient 
 distress be found upon the premises, the 
 landlord must search the premises to see that 
 no such distress can be found ; 15 East, 286 ; 
 6 S. & R. 151 ; 8 Watts, 51. See Jacks. & 
 Gross, Landl. & T. § 236. 
 
 But the statutes of most of the states, fol- 
 lowing the English statute of 4 Geo. II. c. 
 28, now dispense with the formalities of a 
 common-law demand, by providing that an 
 action of ejectment may be brought as sub- 
 stitute for such a demand in all cases where 
 no sufficient distress can be found upon the 
 premises. And this latter restriction disap- 
 pears entirely from the statutes of such of the 
 states as have abolished distress for rent. 
 
 The clause of re-entry for non-payment of 
 rent operates only as a security for rent ; for 
 at any time before judgment is entered in 
 the action to recover possession the tenant 
 may either tender to the landlord, or bring 
 into the court where the action is pending, 
 all the rent in arrear at the time of such 
 payment, and all costs and charges incurred 
 by the landlord, and in such case all further 
 proceedings will cease. And in some states, 
 even after the landlord has recovered posses- 
 sion the tenant may in certain cases be re- 
 instated upon the terms of the original lease, 
 by paying up all arrearages and costs ; Tayl. 
 Landl. &T. 302. 
 
 But the courts will not relieve against a 
 forfeiture which has been wilfully incurred 
 by a tenant who assigns his lease, or neglects 
 to repair or to insure, contrary to his express 
 agreement, or if he exercises a forbidden 
 trade, or cultivates the land in a manner 
 prohibited by the lease ; for in all such cases 
 the landlord, if he has reserved a right to 
 re-enter, may at once resume his former pos- 
 session and avoid the lease entirely ; 2 Price, 
 206, n.; 2 Mer. 459 ; 9 C. & P. 706 ; 1 Dall. 
 210; 9 Mod. 112; 3 V. & B. 29 ; 12Ves. 291. 
 
 REEVE. An ancient English officer of 
 justice, inferior in rank to an alderman. 
 
 He was a ministerial officer appointed to 
 execute process, keep the king's peace, and 
 put the laws in execution. He witnessed all 
 contracts and bargains, brought offenders to 
 justice and delivered them to punishment, 
 took bail for such as were to appear at the 
 county court, and presided at the court or 
 folcmote. He was also called gerefa. 
 
 There were several kinds of reeves : as, the 
 shire-gerefa, shire-reeve or sheriff; the heh- 
 gerefa, or high-sheriff, tithing-reeve, burgh- 
 or borough-reeve. 
 
 RE-EXAMINATION. A second ex- 
 amination of a thing. A witness may be re- 
 
RE-EXCHANGE 
 
 526 
 
 REFORM 
 
 examined, in atrial at law, in the discretion of 
 the court; and this is, seldom refused. In 
 equity, it is a general rule that there can be 
 no re-examination of a witness after he has 
 once signed his name to the deposition and 
 turned iiis back upon the commissioner or 
 examiner. The reason of this is that he may 
 be tampered with, or induced to retract or 
 qualify what he-has sworn to; 1 Mer. 130. 
 
 RE-EXCHANGE. The expense incun-ed 
 by a bill being dishonored in a foreign coun- 
 try where it is made payable and returned to 
 that country in which it was made or indorsed 
 and there taken up. 11 East, 265; 2 Campb. 
 65. 
 
 The loss resulting from the dishonor of a 
 bill of exchange in a country different from 
 that in which it was drawn or indorsed. It is 
 ascertained by proof of the sum for which a 
 sight bill (drawn at the time and place of dis- 
 honor at the then rate of exchange at the place 
 where the drawer or indorser sought to be 
 charged resides) must be drawn in order to 
 realize at the place of dishonor the amount of 
 the dishonored bill and the expenses conse- 
 quent on its dishonor. The holder may draw 
 a sight bill for such sum on either the drawer 
 or one of the indorsers. Such bill is a ' re- 
 draft;' Benj. Chalm. Bills, etc., art. 221. 
 See L. R. 3 App. Cas. 146. 
 
 The drawer of a bill is liable for the whole 
 amount of re^exchange occasioned by the cir- 
 cuituous mode of returning the bill through the 
 various countries in which it has been nego- 
 tiated, as much as for that occasioned by a 
 direct return; 2 H. Blackst. 378; 11 East, 
 265 ; 3 B. & P. 335. And see 10 La. 562 ; 
 24 Mo. 65 ; 8 Watts, 545 ; 10 Mete. 375 ; 7 
 Cra. 500; 4 Wash. C. C. 310; 2 How. 711, 
 764 ; 9 Exch. 25 ; 6 Moo. P. C. 314. 
 
 In some states legislative enactments have 
 been made which regulate damages on re-ex- 
 change. These damages are different in the 
 several states ; and this want of uniformity, if 
 it does not create injustice, must be admitted 
 to be a serious evil. See 2 Am. Jur. 79 ; 23 
 Penn. 137; 4 Johns. 119; 12 id. 17; 4 Cal. 
 395 ; 3 Ind. 53 ; 9 id. 233 ; 8 Ohio, 292 ; 
 Measure of Damages. 
 
 REFALO. A word composed of the three 
 initial syllables re. fa. lo., for recordari 
 facias loquelam. 2 Sell. Pr. 160 ; 8 Dowl. 
 514. 
 
 REFECTION (Lat. re, again, facio, to 
 make). In Civil Law. Reparation; re- 
 establishment of a building. Dig. 19. 1. 6. 1. 
 
 REFEREE. A person to whom has been 
 referred a matter in dispute, in order that he 
 may settle it. His judgment is called an 
 award. See Akbitkator ; Reperence. 
 
 REFERENCE. In Contracts. An 
 
 agreement to submit to certain arbitrators 
 matters in dispute between two or more par- 
 ties, for their decision and judgment. The 
 persons to whom such matters are referred 
 are sometimes called referees. 
 
 In MercantUe Law. A direction or re- 
 quest by a party who asks a credit to the per 
 son from whom he expects it, to call on some 
 other person named, in order to ascertain the 
 character or mercantile standing of the for- 
 mer. 
 
 In Practice. The act of sending any mat. 
 ter by a court of chancery, or one exercising 
 equitable powers, to a master or other officer 
 in order that he may ascertain facts and rel 
 port to the court. That part of an instrument 
 of writing where it points to another for the 
 matters therein contained. For the effect (»" 
 such reference, see 1 Pick. 27 ; 15 id. 66 ■ 
 17 Mass. 443; 7 Halst. 25; 14 Wend. 619 • 
 10 Conn. 422; 3 Me. 393; 4 id. 14, 471! 
 The thing referred to is also called a refer^ 
 ence. 
 
 REPERENDARIUS (Lat.). An officer 
 by whom the order of causes was laid before 
 the Roman emperor, the desires of petitioners 
 made known, and answers returned to them. 
 Vicat, Voc. Jur.; Calvinus, Lex. 
 
 HEFERENDUM (Lat.). In Interna- 
 tional Law. A note addressed by an am- 
 bassador to his government, submitting to its 
 considerations propositions made to him touch- 
 ing an object over which he has no sufficient 
 power and is without instructions. When 
 such a proposition is made to an ambassador, 
 he accepts it ad referendum ; that is, under 
 the condition that it shall be acted upon by 
 his government, to which it is referred. 
 
 REFORM. To reorganize ; to rearrange. 
 Thus, the jury "shall be reformed by putting 
 to and taking out of the persons so impan- 
 nelled." Stat. 3 Hen. VIIL c, 12; Bacon, 
 Abr. Juries (A). 
 
 To reform an instrument in equity is to 
 make a decree that a deed or other agreement 
 shall be made or construed as it was origin- 
 ally intended by the parties, when an error 
 or mistake as to a fact has been committed. 
 A contract has been reformed although the 
 party applying to the court was in the legal 
 profession and he himself drew the contract, 
 it appearing clear that it was framed so as to 
 admit of a construction inconsistent with the 
 true agreement of the parties; 1 S. & S. 
 210; 3 Russ. 424. But a contract will not 
 be reformed in consequence of an error of 
 law ; 1 Russ. & M. 418; 1 Chitty, Pr. 124. 
 
 A person who seeks to rectify a deed on 
 the ground of mistake must establish )n the 
 clearest and most satisfactory manner, that 
 the alleged intention to which he desires it to 
 be made conformable, continued concurrently 
 in the minds of all the parties down to the 
 time of its execution; and also must be able to 
 show exactly and precisely the form to which 
 the deed ought to be brought ; 4 De 6. & J. 
 265. Where the mistake has been on one 
 side only, the utmost that the party desiring^ 
 relief can obtain is rescission, not reformation ; 
 14 N. H. 1 75. But if there is mistake on one 
 side and fraud on the other, there is a case for 
 reformation ; 44 N. Y. 325- Bisph Eq. §469. 
 
EEFRBSHING THE MEMORY 527 
 
 REGISTER 
 
 KEPRBSHINO THE MEMORY. To 
 
 revive the knowledge of a subject by having 
 ii reference to something connected with it. 
 
 A witness has a right to examine a memo- 
 randum or paper which he made in relation 
 to certain facts when the same occurred, in 
 order to refresh his memory ; but the paper 
 or memorandum itself is not evidence ; 5 
 Wend. 301 ; 12 S. & R. 328 ; 6 Pick. 222; 
 1 A. K. Marsh. 188; 2 Conn. 213; 1 Const., 
 336, 373. 
 
 Where the witness after referring to the 
 paper, speaks from his own memory and de- 
 pends upon his own recollection of the facts 
 to which he testifies, he is allowed to use the 
 paper without regard to the time when, or 
 the person by whom, it was made ; but where 
 he relies upon the paper and testifies only be- 
 cause he finds the facts contained therein, he 
 cannot use it unless it is an original paper 
 made by himself and contemporaneously with 
 the transaction referred to ; 14 Cent. L. J. 
 119. 
 
 REFUND. To pay back by the party who 
 has received it, to the party who has paid it, 
 money which ought not to have been paid. 
 
 On a deficiency of assets, executors and ad- 
 ministrators cum testamento annexo are en- 
 titled to have refunded to them legacies which 
 they may have paid, or so much as may be 
 necessary to pay the debts of the testator ; 
 and in order to insure this they are generally 
 authorized to require a refunding bond. See 
 Bacon, Abr. Legacies (H). 
 REFUNDING BOND. See Refund. 
 REFUSAL. The act of declining to re- 
 ceive or to do something. 
 
 A grantee may refuse a title, see Assent ; 
 one appointed executor may refuse to act as 
 such. In some cases, a neglect to perform a 
 duty which the party is required by law or 
 his agreement to do will amount to a refusal. 
 REGARDANT (French, regardant, see- 
 ing or vigilant). A villein regardant was one 
 who had the charge to do all base services 
 within the manor, and to see. the same freed 
 of annoyances. Co. Litt. 120; 2 Bla. Com. 93. 
 REGENCY. The authority of the per- 
 son in monarchical countries invested with the 
 right of governing the state, in the name of 
 the monarch, during his minority, absence, 
 sickness, or other inability. 
 
 REGENT. A ruler; a governor. The 
 term is usually applied to one who governs a 
 regency, or rules in the place of another. 
 
 In the canon law, it signifies a master or 
 professor of a college. Diet, du Dr. Can. 
 
 It sometimes means simply a ruler, direc- 
 tor, or superintendent ; as in New York, 
 where the board who have the superintend- 
 ence of all the colleges, academies, and 
 schools are called the regents of the Univer- 
 sity of the state of New York. 
 
 REGIAM MAJBSTATBM (Lat.). An 
 ancient book purporting to contain the law of 
 Scotland, and said to have been compiled by 
 
 king David, who reigned 1124-1153. It is 
 not part of the law of Scotland, though it was 
 ordered to be revised with other ancient laws 
 of Scotland by parliaments of 1405 and 1407. 
 Stair, Inst. 12, 508. So Craig, Inst. 1. 8. 
 11 ; Scott, Border Antiq. prose works, 7, 30 ; 
 but Erskine, Inst. b. 1, tit. 1, §32, and Ross, 
 60, maintain its authenticity. It is cited in 
 some modern Scotch cases. 2 Swint. 409 ; 3 
 Bell, Hou. L. It is, according to Dr. Robert- 
 son, a servile copy of Glanville. Robertson, 
 Hist. Charles V. 262. 
 
 REGICIDE (Lat. rex, king, ccedere, to 
 kill, slay). The killing of a king, and, by 
 extension, of a queen. Th^orie des Lois 
 Criminelles, vol. 1, p. 300, 
 
 REGIDOR. In Spanish Law. One of 
 a body, never exceeding twelve, who formed 
 a part of the ayuntamiento, or municipal coun- 
 cil, in every capital of a jurisdiction in the 
 colonies of the Indies. The office of regidor 
 was held for life ; that is to say, during the 
 pleasure of the supreme autliority. In most 
 places the office was purchased ; in some 
 cities, however, they were elected by persons 
 of the district, called capitulares. 12 Pet. 
 442, note. 
 
 REGIMIENTO. In Spanish Law. 
 The body of regidores, who never exceeded 
 twelve, forming a part of the municipal coun- 
 cil, or ayuntamiento, in every capital of a 
 jurisdiction. 12 Pet. 442, note. 
 
 REGISTER. In Evidence. A book 
 containing a record of facts as they occur, 
 kept by public authority : a register of births, 
 marriages, and burials. 
 
 Although not originally intended for the 
 purposes of evidence, public registers are in 
 general admislible to prove the facts to which 
 they relate. In Pennsylvania, the registry of 
 births, etc., made by any religious society in 
 the state is evidence, by act of assembly, but 
 it must be proved as at common law ; 6 Binn. 
 416. A copy of the register of births and 
 deaths of the Society of 1' riends in England, 
 proved before the lord mayor of London by 
 an ex parte affidavit, was allowed to be given 
 in evidence to prove the death of a person ; 1 
 Dall. 2 ; and a copy of a parish register in 
 Barbadoes, certified to be a true copy by the 
 rector, proved by the oath of a witness, taken 
 before the deputy secretary of the island and 
 notary public, under his hand and seal, was 
 held admissible to prove pedigree, the hand- 
 writing and office of the secretary being 
 proved; 10 S. & R. 383. 
 
 In North Carolina, a parish register of 
 births, marriages, and deaths, kept pursuant 
 to the statute of that state, is evidence of 
 pedigree ; 2 Murph. 47. In Connecticut, a 
 parish register has been received in evidence ; 
 2 Root, 99. See 15 Johns. 226; 1 Phill. 
 Ev. 305 ; 1 Curt. 755 ; 6 Eccl. 452. 
 
 In Common Law. The certificate of 
 registry granted to the person or persons en- 
 titled thereto, by the collector of the dis- 
 trict, comprehending the port to which any 
 
REGISTER, REGISTRAR 
 
 528 
 
 REI INTERVENTUS 
 
 ship or vessel shall belong ; more properly, 
 the registry itself. For the form, requisites, 
 «tc., of certificate of registry, see Acts of 
 Cong. Dec. 31, 1792, 1 Stat, at L. 287, § 
 9, May 6, 1864, 13 Stat, at L. 69, § 4;" 
 Desty, Com. & Nav. § 4155; 3 Kent, 141. 
 See 1 Cra. 158 ; 9 Pet. 682 ; 19 How. 76 ; 3 
 Wheat. 601 ; 1 Newb. 309 ; 1 Wash. C. C. 
 125 ; 1 Mas. 306 ; 1 Blatch. & H. 52. 
 
 REGISTER, REGISTRAR. An officer 
 authorized by law to keep a record called a 
 register or registry : as, the register for the 
 probate of wills. 
 
 REGISTER'S COURT. In Americ^ 
 Iiaw. A court in the state of Pennsylvania 
 which has jurisdiction in matters of probate. 
 See Pennsylvania. 
 
 REGISTER OF "WRITS. A book pre- 
 served in the English court of chancery, in 
 which were entered, from time to time, all 
 forms of writs once issued. Stat. Westm. 2, 
 c. 25. 
 
 It is spoken of as one of the most ancient 
 books of the common law. Co. Litt. 159 ; 
 Co. 4th Inst. 150 ; 8 Co. Pref.; 3 Shars. Bla. 
 Com. 183*. It was first printed and published 
 in the reign of Hen. VIII. This book is still 
 an authority, as containing, in general, an ac- 
 curate transcript of the forms of all writs as 
 then framed, and as they ought still to be 
 framed in modern practice. 
 
 But many of the writs now in use are not 
 contained in it. And a variation from the 
 register is not conclusive against the pro- 
 priety of a form, if other sufficient authority 
 can be adduced to prove its correctness. Steph . 
 PI. 7, 8. 
 
 REGISTRARirrS (Lat.). An ancient 
 name given to a notary. In^ England this 
 name is confined to designate the officer of 
 some court the records or archives of which 
 are in his custody. 
 
 REGISTRATION OF DEEDS. See 
 
 Record. 
 
 REGISTRUM BRBVIUM (Lat.). 
 The name of an ancient book which was a 
 collection of writs. See Registek op Writs. 
 
 REGISTRY. A book, authorized by 
 law, in which writings are registered or re,- 
 corded. 
 
 REGNAL YEARS. See King. 
 
 REGNANT. One having authority as 
 a king; one in the exercise of royal au- 
 thority. 
 
 REGRATING. In Criminal Law. 
 
 Every practice or device, by act, conspiracy, 
 words, or news, to enhance the price of vic- 
 tuals or other merchandise, is so denominated. 
 Co. 3d Inst. 196 ; 1 Russell, Cr. 169. 
 
 REGULAR CLERGY. Monks who 
 lived according to the rules of their respective 
 houses or societies, in contradistinction to the 
 parochial clergy, who did their duties "in 
 seculo, ' ' and hence were called secular clergy. 
 1 Sharsw. Bla. Com. 887, n. 
 
 REGULAR DEPOSIT. One where the 
 thing deposited must be returned. It is djs. 
 tinguished from an irregular deposit. 
 
 REGULAR PROCESS. ReguLir pro- 
 cess IS that which has been lawfully issued by 
 a court or magistrate having competent iurij. 
 diction. 
 
 When the process is regular, and the de- 
 fendant has been damnified, as in the case 
 of a malicious arrest, his remedy is by an 
 action on the case, and not trespass ; when it 
 is irregular, the remedy is by action of tres- 
 pass. 
 
 If the process be wholly illegal or misap- 
 plied as to the person intended to be arrested 
 without regard to any question of fact, or 
 whether innocent or guilty, or the existence 
 of any debt, then the party imprisoned liiay 
 legally resist the arrest and imprisonment, 
 and may escape, be rescued, or even break 
 prison ; but if the process and imprisonment 
 were in form legal, each of these acts would 
 be punishable, however innocent the defend- 
 ant might be, for he ought to submit to legal 
 process and obtain his release by due course 
 of law ; 1 Chitty, Pr. 637 ; 5 East, 304, 308; 
 2 Wils. 47 ; 1 East, PI. Cr. 310 ; Hawk. PI. 
 Cr. b. 2. c. 19, ss. 1, 2. See Escape; Ar- 
 best; Assault. 
 
 When a party has been arrested on process 
 which has afterwards been set aside for irreg- 
 ularity, he may bring an action of trespass, 
 and recover damages as well against the attor- 
 ney who issued it as the party ; though such 
 process will justify the oflScer who executed 
 it : 8 Ad. & E. 449 ; 15 East, 615, note c; 2 
 Conn. 700 ; 11 Mass. 500 ; 6 Me. 421 ; 8 Gill 
 &J. 377; 1 Bail. 441; 2 Litt. 234; 3S.&R. 
 139 ; 12 Johns. 257. And see Malicious 
 Prosecution. 
 
 REHABERE FACIAS SEISINAII 
 (Lat. do you cause to regain seisin). I^hep 
 a sheriff in the " habere facias seisinqm" had 
 delivered seisin of more than he ought, thb 
 judicial writ lay to make him restore seisin of 
 the excess. Reg. Jud. IS, 61, 54. 
 
 REHABILITATION. Theactby 
 which a man is restored to his former ability, 
 of which he had been depriveji by a convic- 
 tion, sentence, or judgement of a competent 
 tribunal. 
 
 REHEARING. A second consideration 
 which the court gives to a cause on a second 
 argument. 
 
 A rehearing takes place principally when 
 the court has doubts on the subject to be de- 
 cided ; but it cannot be granted by the supreme 
 court aft-er the cause has been remitted to the 
 court below to carry into effect the decree of 
 the supreme court; 7 Wheat. 58. See Ke- 
 OPENiNG Case. 
 
 REI INTERVENTUS (Lat.). When a 
 party is imperfectly bound in an obligation, he 
 may, in general, annul such imperfect obliga- 
 tion ; but when he has permitted the opposite 
 party to act as if his obligation or agreement 
 were complete, such things have intervened as 
 
REINSURANCE 
 
 529 
 
 RELATOR 
 
 to deprive him of the right to rescind such 
 obligation: these circumstances are the rei 
 intfrventus ; 1 Boll, Com. 328, 329, 5th ed. ; 
 Burton, Man. 128. 
 
 HBINS0RANCE. Insurance effected by 
 an underwriter upon a subject against certain 
 risks with another underwriter, on the same 
 subject, against all or a part ofthe same risks, 
 not exceeding the same amount. In the ori- 
 ginal insurance, he is the insurer ; in the 
 second, the assured. His object in reinsurance 
 is to protect himself against the risks which 
 he lias assumed. There is no privity of con- 
 tract between the original assured and the 
 reinsurer, and the reinsurer is under no lia- 
 bility to such original assured ; 3 Kent, 227 ; 
 
 1 Phill. Ins. § 78 a, 404; 20 Barb. 468; 
 23 Penn. 250 ; 9 Ind. 443 ; 13 La. An. 246. 
 
 REISSTTABLE NOTES. Bank-notes 
 which, after having been once paid, may 
 again be put into circulation. 
 
 They cannot properly be called valuable 
 securities while in the hands of the maker, 
 but, in an indictment, may properly be called 
 
 Soods and chattels ; Ry. & M. 218. See 5 
 las. 537; 2 Russ. Cr. 147. And such notes 
 would fall within the description of promis- 
 tory notes ; 2 Leach, 1090, 1093. 
 
 REISSUE ; REISSUED PATENT. 
 See Patent. 
 
 REJOINDER. In Pleading. The de- 
 fendant's answer to the plaintiff's replication. 
 It must conform to the plea ; 1 6 Mass. 1 ; 
 
 2 Mod. 343 ; be triable, certain, direct, and 
 positive, and not by way of recital, or argumen- 
 tative; 1 H. &M'H. 159; must answer every 
 material averment ofthe declaration ; 23 N. 
 H. 198. It must not be double ; 6 Blackf. 
 421 ; 3 McLean, 163 ; and there may not be 
 
 ' several rejoinders to the same replication ; 1 
 How. Miss. 139; 1 Wms. Saund. 337, n.; 
 nor repugnant or .insensible ; see Co. Litt. 
 394; Archb. Civ. PI. 278; Comyns, Dig. 
 Pleader (H). 
 
 REJOINING GRATIS. Rejoining 
 within four days from the delivery of the re- 
 plication, without a notice to rejoin or demand 
 of rejoinder. 1 Archb. Pr. 280, 317; 10 M. 
 & W. 12. But judgment cannot be signed 
 without demanding ; 3 Dowl. 537. 
 
 RELATION (Lat. re, back, fero, to 
 bear). In Civil Law. The report which 
 the judges made of the proceedings in certain 
 suits to the prince were so called. 
 
 These relations took place when the judge had 
 no law to direct him, or when the laws were sus- 
 ceptible of difficulties ; it was then referred to 
 the prince, who was the author of the law , to give 
 the interpretation. They were made in writing, 
 and contained the pleadings of the parties and 
 all the proceedings, together with the judge's 
 opinion, and prayed the emperor to order what 
 should be done. This ordinance of the prince 
 thus required was called a rescript. Their use 
 was abolished by Justinian, Nov. 125. 
 
 In Contracts. When an act is done at 
 one time, and it operates upon the thing as 
 if done at another time, it is said to do so by 
 Vol. n.-34 
 
 relation : as, if a man deliver a deed as an 
 escrow, to be delivered, by the party holding 
 it, to the grantor, on the performance of some 
 act, the delivery to the latter will have rela- 
 tion back to the first delivery. Termes de la 
 Ley. Again, if a partner be adjudged a 
 bankrupt, the partnership is dissolved, and 
 such dissolution relates back to the time when 
 the commission issued ; 3 Kent, 33, See 
 Litt. 462-466 ; 2 Johns. 510 ; 15 id. 309 ; 2 
 Harr. & J. 151 ; Fiction. 
 
 RELATIONS. A term which, in its 
 widest sense, includes all the kindred of the 
 person spoken of. It has long been settled 
 that in the construction of wills it includes 
 those persons who are entitled as next of kin 
 under the statute of distribution; 2 Jarm. 
 Wills. 661 ; 54 Me. 291 ; L. R. 20 Eq. 410 ; 
 in the interpretation of a statute, the term 
 -was held not to include a stepson ; 108 Mass. 
 382 ; or a wife ; 101 id. 36. 
 
 A legacy to "relations" generally, or to 
 "relations by blood or marriage," without 
 enumerating any of them, will, therefore, en- 
 title to a share such of the testator's relatives 
 as would be entitled under the statute of dis- 
 tributions in the event of intestacy ; 1 Madd. 
 45 ; 1 Bro. C. C. S3. The same rule extends 
 to devises of real estate ; 1 Taunt. 263. 
 
 Relations to either ofthe parties, even be- 
 yond the ninth degree, have been holden in- 
 capable to serve on juries ; 3 Chitty, Pr. 795, 
 note c. Relationship or affinity is no objec- 
 tion to a witness, unless in the case of husband 
 and -wife. See Witness. 
 
 RELATIVE. One connected with an- 
 other by blood or affinity ; a relation ; a kins- 
 man or kinswoman. In an adjective sense, 
 having relation or connection with some othei" 
 person or thing : as, relative rights, relative 
 povfers. 
 
 RELATIVE POWERS. Those which 
 relate to land : so called to distinguish them 
 from those which are collateral to it. 
 
 These powers are appendant: as, where a 
 tenant for life has a power of making leases 
 in possession. They are in gross when a per- 
 son has an estate in the land, with a power of 
 appointment, the execution of which falls out 
 ofthe compass of his estate, but, notwithstand- 
 ing, is annexed in privity to it, and takes effect 
 in the appointee out of an interest appointed 
 in the appointer. 2Bouvier, Inst. n. 1930. 
 
 RELATIVE RIGHTS. Those to which 
 a person is entitled in consequence of his re- 
 lation with others ; such as the rights of a 
 husband in relation to his wife ; of a father 
 as to his children ; of a master as to his ser- 
 vant ; of a guardian as to his ward. 
 
 In general, the superior may maintain an 
 action for an injury committed against his 
 relative rights. See 2 Bouvier, Inst. nn. 
 2277-2296; 3 id. n. 3491 ; 4 id. nn. 3615- 
 3618 ; Action. 
 
 RELATOR. A rehearser or teller. One 
 who, by leave of court, brings an information 
 in the nature of a quo warranto. 
 
RELEASE 
 
 630 
 
 RELEVANCY 
 
 At common law, strictly speaking, no such 
 person as a relator to an information is 
 known, he being a creature of the statute of 
 Anne, c. 20. In this country, even where no 
 statute similar to that of Anne prevails, in- 
 formations are allowed to be filed by private 
 persons desirous to try their rights, in the 
 name of the attorney-general, and these are 
 commonly called relators ; though no judg- 
 ment for costs can be rendered for or against 
 them; 5 Mass. 231 ; 3 S. & R. 52; 15 id. 
 127 ; Ang. Corp. 470. In chancery, the re- 
 lator is responsible for costs ; i Bouvier, Inst. 
 n. 4022. 
 
 REIiEASXi. The giving up or abandon- 
 ing a claim or right to the person against 
 whom the claim exists or the right is to be 
 exercised or enforced. 
 
 Releases may either give up, discharge, or 
 abandon a right of action, or convey a man's in- 
 terest or right to another who has possession of 
 it or some estate in the same. Shepp. Touchst. 
 320 : Littleton, 444 ; Nelson, Abr.; Bacon, Abr.; 
 Yiner, Abr.; Bolle, Abr. In the former class a 
 mere right is surrendered ; in the other not only 
 a right is given up, but an interest in the estate 
 is conveyed and becomes vested in the release. 
 
 An express release is one directly made in 
 terms by deed or other suitable means. 
 
 An implied release is one which arises from 
 acts of the creditor or owner, without any ex- 
 press agreement. See Fothler, Obi. nn. 608, 
 609. 
 
 A release by operation of law is one which, 
 though not expressly made, the law presumes 
 in consequence of some act of the releasor ; 
 for instance, when one of several joint oblig- 
 ors is expressly released, the others are also 
 released by operation of law ; 3 Salk. 298 ; 
 Hob. 10, 66 ; 4 Mod. 380 ; 7 Johns. 207. 
 
 Releases of claims which constitute a cause 
 of action acquit the releasee, and remove in- 
 competency as a witness resulting from inter- 
 est. 
 
 Littleton says a release of all demands is 
 the best and strongest release; sect. 608. 
 Lord Coke, on the contrary, says claims is a 
 stronger word ; Co. Litt. 291 6. 
 
 In general, the words of a release will 
 be restrained by the particular occasion of 
 giving it ; 1 Lev. 235 ; 3 id. 273 ; T. Raym. 
 399. 
 
 The reader is referred to the following cases 
 where a construction has been given to the ex- 
 pressions mentioned. A release of " all ac- 
 tions, suits, and demands;" 3 Mod. 277; 
 "all actions, debts, duties, and demands ;" id. 
 1, 64 ; 8 Co. 160 6 ; 2 Saund. 6a; "all de- 
 mands ;" 6 Co. 70 6 ; 1 Lev. 99 ; Salk. 578 ; 
 2 RoUe, 20; 2 Conn. 120; "all actions, 
 quarrels, trespasses;" Dy. 2171, pi. 2; Cro. 
 Jac. 487 ; "all errors, and all actions, suits, 
 and writs of error whatsoever;" T. Raym. 
 399; "all suits;" 8 Co. 150; " of coven- 
 ants ;" 5 Co. 70 b. 
 
 A release by a witness where he has an in- 
 terest in the matter which is the subject of 
 the suit, or release by the party on whose side 
 
 he is interested, renders him comcetent- . 
 Phill. Ev. 102, and the cases citefina' 
 See Chitty, Bail. 329 ; 1 Dowl. & R. sgj 
 
 In Estates. The conveyance of a man', 
 mterest or right which he hath unto a thin» 
 to another that hath the possession thereof or 
 some estate therein. Shepp. Touchst 820 
 The relinquishment of some right or benefit 
 to a person who has already some interest 
 in the tenement, and such interest as quali 
 fies him for receiving or availing himself of 
 the right or benefit so relinquished. Burton 
 R. P. 15*. ' 
 
 The words generally used in such convey- 
 ance are "remised, released, and forever 
 quit-claimed." Littleton, § 445. 
 
 Releases of _ land are, in respect of their 
 operation, divided into five sorts: releases 
 that enure by way of passing the estate, or 
 mitter l'estate(^q. v.), e. g. a release by joint- 
 tenant to eo-joint-tenant, which conveyance 
 will pass a fee without words of limitation. 
 Releases that enure by way of passing the 
 right, or mitter le droit: e.g. by disseisee to 
 disseisor. Releases that enure by enlarge- 
 ment of the estate. 
 
 Here there must be an actual privity of 
 estate at the time between releasor and re- 
 leasee, who must have an estate actually 
 vested in him capable of enlargement. 
 
 Releases that enure by way of extinguish- 
 ment : e.g. a, lord releasing his seignorial 
 rights to his tenant. 
 
 Releases that enure by way of feoffment 
 and entry : e.g. if there are two disseisors, a 
 release to one will give him a sole estate, as 
 if the disseisee had regained seisin by entry 
 and enfeofied him. 2 Sharsw. Bla. Com. 
 325*. See 4 CTuise, Dig. 71 ; Gilb. Ten. 
 82 ; Co. Litt. 264 ; 3 Brock. 185 ; 2 Snmn. 
 487; 8 Pick. 143; 5 Harr. & J. 168; 2N. 
 H. 402 ; 10 Johns. 456. 
 
 The technicalities of English lair as to 
 releases are not generally applicable in the 
 United States. The corresponding convey- 
 ance is a quit-claim deed. 2 Bouvier, Inst. 
 416 ; 21 Ala. n. s. 125. 
 
 RELEASEE. A person to whom a re- 
 lease is made. 
 
 RELEASOR. He who makes a release. 
 
 RELEGATIO (Lat). A kind of banish- 
 ment known to the civil law, which did not 
 take away the rights of citizenship, which de- 
 portatio did. 
 
 Some say that relegatio was temporary, iepor- 
 tatio perpetual ; that relegatio did not take away 
 the property of the exile, and that deportatto 
 did ; but these distinctions do not seem always 
 to exist. There was one sort of relegatk for 
 slaves, viz. in agras; another for freemen, -m. 
 in provincias. JSelegatio only exiled fiom cer- 
 tain limits ; deportatia confined to a particular 
 place (ZoctM^osnos). Calvinus, Lex. 
 
 RELEVANCY. Applicability to the 
 issue joined. That quality of evidence whicn 
 renders it properly applicable in determining 
 the truth and falsity of the matters in iMue 
 
BELICTA VEKIFICATIONE 581 
 
 REMAINDER 
 
 between the parties to a suit. See 1 Greenl. 
 Ev. § 49 ; Steph. Ev. 
 
 REIiICTA VERIPICATIONE (Lat. his 
 pleading being abandoned). 
 
 In Pleading. A confession of judgment 
 made after plea pleaded : viz. a cognitvit acti- 
 onem accompanied by a withdrawal of the 
 plea. 
 
 RELICTION (Lat. relinquo, to leave be- 
 hind). An increase of the land by the retreat 
 or recession of the sea or a river. 
 
 Lands left dry by the sudden and sensible 
 recession of the sea, or of a river which flows 
 and re-flows with the tide, belong to the 
 sovereign or state, unless the property in the 
 land so relicted has been granted to indi- 
 viduals. In other words, the right of pro- 
 perty in the soil is not changed by such change 
 of the water. But where the recession is 
 gradual and insensible, or where it takes place 
 in fresh- water rivers, the soil of which belongs 
 to the riparian proprietors, the lands so re- 
 licted belong to the proprietors of the estates 
 which are thereby increased; Woolr. Wat. 
 29-36 ; Schultes, Aqu.» Rights, 138 ; Ang. 
 Tide- Wat. 264-267; 3 B. & C. 91; 9 Conn. 
 41; 2 Md. Ch. Deo. 485 ; 13 N. Y. 296 ; 5 
 Bingh. 163. But this reliction must be from 
 the sea in its usual state ; for if it should inun- 
 date the land and then recede, this would be 
 no reliction; Ang. Tide- Wat. «6. sup.; 
 Hargr. Tracts, 15; 16 Viner, Abr. 574. See 
 River. 
 
 Where the sea cut off the sea front of the 
 main land between certain points and after- 
 wards a beqch was reformed outside the main 
 land, and divided from it by a bay of naviga^ 
 ble water, it was held that the title to the new 
 formation was in the owners of the part cut 
 ofl"; 61 How. Pr. 197. 
 
 In this country it has been decided that if a 
 navigable lake recede gradually and insensi- 
 bly, the derelict land belongs to the adjacent 
 riparian proprietors ; but if the recession be 
 sudden and sensible, such land belongs to the 
 state; 1 Hawks, 56; 1 Gill & J. 249. See 
 Avulsion; Alluvion. 
 
 RELIEF. A sum payable by the new 
 tenant, the duty being incident to every feudal 
 tenure, by way of fine or composition with 
 the lord for taking up the estate which was 
 lapsed or fallen in by the death of the last 
 tenant. At one time the amount was arbi- 
 trary; but afterwards the relief of a knight's 
 fee became fixed at one hundred shillings, i 
 Bla. Com. 65. 
 
 RELIGION (Lat. re, back, ligo, to bind) 
 Real piety in practice, consisting in the per- 
 formance of all known duties to God and our 
 fellow-men. The constitution of the United 
 States provides that " congress shaU make no 
 law respecting an establishment of religion, or 
 prohibiting the free exercise thereof." This 
 provision and that relating to religious tests 
 (?• ».) are limitations upon the power of con- 
 gress only ; Cooley, Const. 206 ; perhaps the 
 fourteenth amendment may give additional 
 
 securities if needful ; id. By establishment 
 of religion is meant the setting up of a state 
 church, or at least the conferring upon one 
 church of special favors which are denied to 
 others ; 1 Tuck. Bla. Com. App. 296 ; 2 id. 
 App. n. G. The Christian religion is, of 
 course, recognized by the government, yet not 
 so as to draw invidious distinctions between 
 different religious beliefs, etc.; Cooley, Const. 
 206. With the exception of these provisions, 
 the prfijservation of religious liberty is left to 
 the states. The various state guarantees may 
 be summed up as follows : 1. They establish 
 a system, not of toleration merely, but of reli- 
 gious equality. 2. They exempt all persons 
 from compulsory support of religious worship, 
 and from compulsory attendance on the same. 
 3. They forbid restraints upon the free exercise 
 of religion according to the dictates of con- 
 science, or upon the free expression of reli- 
 gious opinions ; Cooley, Const. 206. See 
 Cooley, Const. l.iim. ch. 13. See Charitiks; 
 Charitable Uses ; Religious Test. 
 
 RELIGIOtTS MEN (L. Lat. religiosi). 
 Such as entered into some monastery or con- 
 vent. In old English deeds, the vendee was 
 often restrained from aliening to " Jews or 
 religious men," lest the lands should fall into 
 mortmain. Religious men were civilly dead. 
 Blount. 
 
 RELIGIOUS TEST. The constitution 
 of the United States declares that " no re- 
 ligious test shall ever be required as a qualifi- 
 cation to any ofiice or public trust under the 
 United States." This clause was introduced 
 for the double purpose of satisfying the scru- 
 ples of many respectable persons who feel an 
 invincible repugnance to any religions test or 
 affirmation, and to cut off forever every pre- 
 tence of any alliance between church and state 
 in the national government. Story, Const. 
 § 1841. See Religion. 
 
 RELIGIOUS USE. See Charitable 
 Uses. 
 
 RELINQUISHMENT. In Practice. 
 
 A forsaking, abandoning, or giving over a 
 right : for example, a plaintiff may relinquish 
 a bad count in a declaration, and proceed on 
 a good ; a man may relinquish a part of his 
 claim in order to give a court jurisdiction. 
 
 RELOCATIO (Lat.). In Civil Law. A 
 
 renewal of a lease on its determination on like 
 terms as before. It may be either express or 
 tacit; the latter is when the tenant holds 
 over with the knowledge and without objection 
 of the landlord. Mackeldey, Civ. Law, § 379. 
 
 REMAINDER. The remnant of an es- 
 tate in land, depending upon a particular 
 prior estate created at the same time and by 
 the same instrument and limited to arise im- 
 mediately on the determination of that estate 
 and not in abridgment of it. 4 Kent, 197. 
 
 A contingent remainder is one which is 
 limited to an uncertain or dubious person or 
 which is to take effect on an event or condi- 
 tion which may never happen or be performed, 
 
EEMAINDEB.MAN 
 
 532 
 
 REMISSION 
 
 or which may not happen or be performed till 
 after the determination of the preceding par- 
 ticular estate. A vested remainder is one by 
 which a present interest passes to the party, 
 though perhaps to be enjoyed in future, and by 
 which the estate is invariably fixed to remain 
 to a determinate person after the particular 
 estate has been spent. See Contingent 
 Bemainder ; Cross-Remainder ; Execu- 
 tory Devise ; Limitation ; Reversion. 
 
 REMAINDER-MAN. One who is en- 
 titled to the remainder of the estate after a 
 particular estate carved out of it has expired. 
 
 flEMAND (Lat. re, back, mando, to com- 
 mand). When a prisoner is brought before 
 a judge on a habeas corpus, for the purpose 
 of obtaining his liberty, the judge hears the 
 case, and either discharges him or not : when 
 there is cause for his detention, he remands 
 him. 
 
 REMANDING A CAUSE. In Prac- 
 tice. The sending it back to the same court 
 out of which it came, for the purpose of hav- 
 ing some action on it there. March, 100. 
 
 REMANENT PRO DEPECTTJ EMP- 
 TORUM (JLat. remanent, they remain, pro 
 defeetu, through lack, emptorum, of buyers). 
 In Practice. The return made by the sheritf 
 to a writ of execution when he has not been 
 able to sell the property seized, that the same 
 remains unsold for want of buyers ; in that 
 case the plaintiff is entitled to a venditioni ex- 
 ponas. Comyns, Dig. Execution (C 8). 
 
 REMANET (Lat.). In Practice. The 
 causes which are entered for trial, and which 
 cannot be tried during the term, are remanets. 
 Lee, Diet. Trial; 1 Sell. Pr. 434; 1 Phill- 
 ipps, Ev. 4. 
 
 REMEDIAL. That which affords a 
 remedy : as, a remedial statute, or one which 
 is made to supply some defects or abridge 
 some superfluities of the common law. 1 
 £la. Com. 86. The term remedial statute is 
 also applied to those acts which give a new 
 remedy. Esp. Pen. Act. 1. 
 
 REMED7. The means employed to 
 enforce a right or redress an injury. 
 
 Remedies for non-fulfilment of contracts 
 are generally by action, see Action ; As- 
 sumpsit ; Covenant ; Debt ; Detinue ; 
 or in equity, in some cases, by bill for specific 
 performance. Remedies for the redress of 
 injuries are either public, by indictment, when 
 the injury to the individual or to his pro- 
 perty affects the public, or private, when the 
 tort is only injurious to the individual. See 
 Indictment ; Felony ; Merger ; Torts ; 
 Civil Remedy. 
 
 Remedies are preventive which seek com- 
 perisation, or which have for their object 
 punishment. The preventive, or removing, or 
 abating remedies may be by acts of the party 
 aggrieved or by the intervention of legal pro- 
 ceedings : as in the case of injuries to the per- 
 son or to personal or real property, defence, 
 resistance, recaption, abatement of nuisance, 
 
 and surety of the peace, or injunction in 
 equity, and perhaps some others. Remedies 
 for compensation may be either by the ads 
 of the party aggrieved, or summarily before 
 justices, or by arbitration, or action, or suit 
 at law or in equity. Remedies which have 
 for their object punishments or compensation 
 and punishments are either summary pro- 
 ceedings before magistrates, or indictment 
 etc. ' 
 
 Remedies are specific and cumulative: 
 the former are those which can alone be apl 
 ^lied to restore a right or punish a crime: 
 for example, where a statute makes unlawful 
 what was lawful before, and gives a particular 
 remedy, that is specific, and must be pursued, 
 and no other; Cro. Jac. 644; 1 Salk. 48; 2 
 Burr. 803. But when an offence was ante- 
 cedently punishable by a common-law pro- 
 ceeding, as by indictment, and a statute 
 prescribes a particular remedy, there such 
 particular remedy is cumulative, and proceed, 
 ings may be had at common law or under the 
 statute ; 1 Saund. 134, n. 4. 
 
 The maxim ubijus, ibi remedium, has been 
 considered so valuable that it gave occasion to 
 the first invention of that form of action called 
 an action on the case ; 1 Sm. Lead. Cas. 472. 
 The novelty of the particular complaint al- 
 leged in an action on the case, is no objection, 
 provided there appears to have been an 
 injury to the plaintiff' cognizable by law ; 2 
 Wils. 146 ; 3 Term, 63; Willes, 577; 2M. 
 & W. 519. 
 
 REMEMBRANCERS. In E n g 1 i a h 
 
 Iiaiv. Officers of the exchequer, whose 
 duty it is to remind the lord-treasurer and 
 the justices of that court of such things as 
 are to be called and attended to for the hene- 
 fit of the crown. 
 
 REMISE, RELEASE, AND QUIT- 
 CLAIM. The ordinary effective words in a 
 release. These words are, in this country, 
 sufficient to pass the estate in a primary con- 
 veyance ; 7 Conn. 250; 24 N. H. 460; 21 
 Ala. N. s. 125; 7 N. Y. 422. Remise is a 
 French word synonymous with release. See 
 Quit-Claim. 
 
 REMISSION (Lat. re, back, mitto, to 
 send). 
 
 In Civil LaTv. A release of a debt. 
 
 It is conventional when it is expressly granted 
 to the debtor by a creditor having a capacity to 
 alienate ; or tacit, when the creditor voluntarily 
 surrenders to his debtor the original title, nnder 
 private signature constituting the obligation, la. 
 Civ. Code, art. 3195. 
 
 Forgiveness or pardon of an offence. 
 
 It has the effect of putting back the offender 
 into the same situation he was before the coin- 
 mission of the offence. Remission is generally 
 granted in cases where the offence was involun- 
 tary or committed in self-defence. Pothier, 
 Pr. Civ. sect. 7, art. S, § 8. 
 
 At Common Law. The act by which » 
 forfeiture or penalty is forgiven. 10 Wheat 
 246. 
 
REMIT 
 
 533 
 
 REMOVAL OP CAUSES 
 
 REMIT. To annul a fine or forfeiture. 
 
 This is generally done by the courts where 
 they have a discretion by law : as, for exam- 
 ple, when a juror is fined for non-attendance 
 in court, after being duly summoned, and, on 
 appearing, he produces evidences to the court 
 that he was sick and unable to attend, the fine 
 will be remitted by the court. 
 
 In Commercial Laiv. To send money, 
 bills, or something which will answer the pur- 
 pose of money. 
 
 REMITTANCE. In Commercial Law. 
 Money sent by one merchant to another, 
 either in specie, bill of exchange, draft, or 
 otherwise. 
 
 REMITTEE. A person to whom a re- 
 mittance ia made. Story, Bailm. § 75. 
 
 REMITTER. To be placed back in pos- 
 session. 
 
 When one having a right to lands is out of 
 possession, and afterwards the freehold is cast 
 upon him by some defective title, and he en- 
 ters by virtue of that title, the law remits him 
 to his ancient and more certain right, and, by 
 an equitable fiction, supposes him to have 
 gained possession under it ; 3 Bla. Com. 190 ; 
 Comyns, Dig. Remitter. 
 
 REMITTIT DAMNA (Lat. he releases 
 damages). An entry on the record, by which 
 the plaintiff declares that he remits the dam- 
 ages or a part of the damages which have been 
 awarded him by the jury, is so called. 
 
 In some cases a misjoinder of actions may 
 be cured by the entry of a remittit damna ; 
 Chitty, PI. 207. 
 
 REMITTITUR DAMNUM or DAM- 
 NA. In Practice. The act of the plain- 
 tiff upon the record, whereby he abates or 
 remits the excess of damages found by the 
 jury beyond the sum laid in the declaration. 
 See 1 Saund. 285, n. 6 ; 4 Conn. 109. 
 
 REMITTITUR OP RECORD. After 
 a record has been removed to the supreme 
 court, and a judgment has been rendered, it 
 is to be remitted or sent back to the court be- 
 low, for the purpose of re-trying the cause, 
 when the judgment has been reversed, or of 
 issuing an execution when it has been affirmed. 
 The act of so returning the record, and the 
 writ issued for that purpose, bear the name of 
 remittitur. 
 
 REMITTOR. A person who makes a re- 
 mittance to another. 
 
 REMONSTRANCE. A petition to a 
 court or deliberative or legislative body, in 
 which those who have signed it request that 
 something which is in contemplation to per- 
 form shall not be done. 
 
 REMOTE. At a distance; afar off. See 
 Causa Promixa ; Measure op Damages. 
 
 REMOVAL OP CAUSES. It is pro- 
 vided by statute that causes may be removed 
 from state to federal courts where the amount 
 in controversy exceeds five hundred dollars, 
 m the following cases : — 
 
 1 . Where the suit is against an alien, or is 
 by a citizen of the state wherein it is brought 
 and against a citizen of another state, it may 
 be removed on petition of the defendant. 
 
 2. Where the suit is against an alien and a 
 citizen of the state wherein it is brought, or 
 is by a citizen of such state against a citizen 
 of the same and a citizen of another state, it 
 may be removed as against such alien or 
 citizen of another state on his petition, and 
 the case may proceed in the state court as 
 against the other defendant or defendants. 
 
 3. Where the suit is between a citizen of 
 the state in which it is brought and a citizen 
 of another state, it may be removed on peti- 
 tion of the latter, be he plaintiff or defendant, 
 on his filing an affidavit that he has reason to 
 believe, and does believe, that from preju- 
 dice or local influence he will not be able to 
 obtain justice in such state court; Acts of 
 Sept. 24, 1879; July 27, 1866; March 2, 
 1867; May .S, 1875; R. S. § 639. Also, 
 any suit commenced against any corporation 
 other than a banking corporation organized 
 under a law of the United States, or against 
 any member thereof, as such member, for any 
 alleged liability of such corporation ; or such 
 member as a member thereof may be removed 
 on petition of the defendant, verified by oath, 
 stating such defendant has a defence arising 
 under or by virtue of the aonstitution, or any 
 treaty or law of the United States; Act of 
 July 27, 1866; July 27, 1868; R. S. § 640. 
 
 Also, when any civil suit or criminal prose- 
 cution is commenced in any state court, for 
 any cause whatsoever, against any person who 
 is denied or cannot enforce in the judicial 
 tribunals of the state, or in the part of the 
 state where such suit or prosecution is pend- 
 ing, any right secured to him, by any law 
 providing for the equal civil rights of citizens 
 of the United States, or of all persons within 
 the jurisdiction of the United States, or 
 against any officer, civil or military, or other 
 person, for any arrest or imprisonment, or 
 other trespasses or wrongs, made or com- 
 mitted by virtue of or under color of autho- 
 rity derived from any law providing for equal 
 rights as aforesaid, or for refusing to do any 
 act on the ground that it would be inconsis- 
 tent with such law, — such suit or prosecution 
 may, upon the petition of the defendant, 
 filed in said state court at any time before 
 the trial or final hearing of the cause, stating 
 the facts, and verified by oath, be removed 
 for trial into the next circuit court to be held 
 in the district where it is pending ; Acts Mar. 
 3, 1863; April 9, 1866; May 11, 1866; 
 May 31, 1870; R. S. § 641. 
 
 Also, when any suit or criminal prosecution 
 is commenced in any court of a state against 
 any officer appointed under or acting by au- 
 thority of any revenue law of the United 
 States, or against any person acting under or 
 by authority of such officer on account of any 
 act done under color of his office or of any 
 such law, or on account of any right, title, or 
 authority claimed by such officer or person 
 
REMOVAL OF CAUSES 
 
 534 
 
 REMOVAL OF CAUSES 
 
 under such law, or is commenced against any 
 person holding property or estate by title de- 
 rived from any such officer, and affects the 
 validity of any such revenue law, or is com- 
 menced against any officer of the United 
 States, or other person, on acount of any act 
 done under the provisions of the laws of con- 
 gress respecting the elective franchise, or on 
 account of any right, title, or authority claimed 
 by such officer or other person under any of 
 said provisions, — such suit or prosecution may 
 be removed for trial into the circuit court of 
 the United States for the district, upon the 
 petition of the defendant setting forth the 
 nature of the suit or prosecution, and duly 
 verified; Acts Mar. 2, 1838; July 13, 1866; 
 Feb. 28, 1871; Mar. 3, 1875; R. S. § 643. 
 
 Also, whenever a personal action is brought 
 in any state court by an alien against a citizen of 
 a state who is, or when the action accrued was, 
 a civil officer of the United States, being a 
 non-resident of the state where suit is brought, 
 the action may be removed into the circuit 
 court of the United States for the district, in 
 the manner provided for the cases last above 
 mentioned. A subsequent section makes pro- 
 vision for the removal of a cause from the 
 state court where the party claims land in 
 dispute under a grant from another state than 
 that in which suit is brought; Acts Mar. 30, 
 1872; Mar. 3, 1875; Sept. 29, 1789; R. S. 
 §§ 644, 647. 
 
 The cognizance over cases removed to the 
 federal court has been referred to the appel- 
 late jurisdiction ; on the ground that the suit 
 is not instituted in that court by original pro- 
 cess ; 1 Wheat. 304; but this jurisdiction has 
 been more accurately characterized as ' ' ori- 
 ginal jurisdiction acquired indirectly by a re- 
 moval from the state court;" 6 Blatchf. 336 ; 
 6 id. 362. The validity of the legislation on 
 this subject has been repeatedly affirmed ; 92 
 U. S. 10 ; 100 id. 257 ; 77 N. C. 530 ; 28 
 Ohio St. 208. And it has been further de- 
 cided that when the terms upon which the 
 right is given have been complied with, the 
 right of removal cannot be defeated by state 
 legislation ; 20 Wall. 445. But a state has 
 the right to impose conditions, not in conflict 
 with the constitution or the laws of the United 
 States, on the transaction of business within 
 its territory by a foreign corporation, or hav- 
 ing given a license, to revoke it with or with- 
 out cause; it may therefore require foreign 
 corporations to forego their right of removal, 
 or cease to do business within the state ; 94 
 U. S. 535 ; 40 Wise. 220. 
 
 When the controversy about which a suit 
 in the state court is brought is between citi- 
 zens of one or more states on one side, and 
 citizens of other states on the other side, 
 either party may remove the suit to the cir- 
 cuit court, without regard to the position they 
 occupy as plaintiffs or defendants; 100 U. 
 S. 457. In order to bar the right of removal 
 upon the ground that the trial in the state 
 court has commenced, it must appear that 
 such trial is actually in progress, when the ap- 
 
 plication is made ; id. A party who, failing 
 to obtain a removal of the suit, is forced to 
 trial, loses none of his rights ; 1 9 Wall. 214 • 
 100 U. S. 457 ; 101 id. 184, 289, 610; 1 Fed' 
 Rep. 541. 
 
 The right of removal under R. S. § 641 
 supra, is authorized only upon petition setting 
 forth infractions of the 14th amendment to the 
 constitution previous to the trial and final 
 hearingjjf the cause, and has no applicability 
 to those occurring after the trial or final hear- 
 ing has commenced. This section was drawn 
 only with reference to state action, and has 
 no reference to individual violations of rights • 
 100 U. S. 313. ' 
 
 If the case, whether civil or criminal, be 
 one to which the judicial power of the United 
 States extends, its removal to the federal 
 court does not invade state jurisdiction. A 
 case arises under the constitution, laws, or 
 treaties of the United States, wherever its 
 correct decision as to the right, privilege, 
 claim, protection, or defence of a party, in 
 whole or in part, depends upon the construc- 
 tion of either. It is in the power of congress 
 to give the circuit courts of the United States 
 jurisdiction of such a case, although it may 
 involve other questions of fact or law ; Dil- 
 lon, Rem. Causes, 47 ; 100 U. S. 257. 
 
 A motion under a state statute as to corpo. 
 rations, for execution against a stockholder, 
 cannot be removed ; 5 l)illon, 223. A pro- 
 ceeding by mandamus to compel the register 
 of the transfer of stock may be removed ; id. 
 489 ; but not on a plea which raises the issue 
 of title to an office ; 29 La. An. 399 ; nor 
 an action in the nature of quo warranto to 
 determine the title to office of presidential 
 electors ; 8 So. C. 382. Suits hj attachment 
 may be removed ; 5 Blatchf. 107 ; 2 Curt. 
 C. C. 212; ejectment actions; 3 Wall. Jr. 
 258, 263 ; a hill in equity to reform an insur- 
 ance policy ; 6 Blatchf. 208 ; a suit to annul 
 a will ; 92 U. S. 10; a^ railway foreclosure 
 suit ; 6 Biss. 529. An action of tort against 
 several defendants for a conspiracy cannot be 
 removed by a part of them ; 40 Ala. 639. 
 Where the suit is in its nature an equitable 
 proceeding, it must proceed as such in the 
 federal court, and in accordance with the rules 
 governing equity cases in such court without 
 regard to the system in the state court ; 13 
 How. 268; 23 id. 484. Where the suit 
 unites legal and equitable questions of relief 
 or defence, a repleader is necessary after re- 
 moval ; 1 Dillon, 290; 8 Blatchf. 299; 15 
 id. 432 ; 15 Wall. 573. The circuit court 
 may issue a certiorari to bring in the record 
 from the state courts ; 4 Dillon, 1. It is not 
 sufficient that the value in dispute be precisely 
 |500; it must exceed that sum; 4 Wall. 
 163 ; 47 Ind. 532. Under the act of 1789, 
 the petition must be filed at the time of en- 
 tering appearance ; 6 Wall. 139 ; under the 
 acts of 1866 and 1867, the petition maybe 
 filed at any time before final trial or hearing; 
 Dillon, Rem. Causes, § 59; even after anew 
 trial granted ; 21 Wall. 41 ; but see 1 1 2 Mass. 
 
REMOVAL FROM OFFICE 
 
 535 
 
 RENT 
 
 SS9. Under the act of 1875, it must be filed 
 before or at the term at which the cause could 
 be first tried and before the trial thereof. 
 
 When the state court asserts jurisdiction 
 after a proper application for removal, the 
 question is not waived by the party entitled 
 to the removal by reason of his appearing 
 and contesting the matter in dispute; 19 
 Wall. 214. He may take an appe^, should 
 the decision be agamst him, to the highest 
 court of the state, and failing there, to the 
 supreme court of the United States. In the 
 event of his obtaining a decision in favor of 
 removal there, the judgment of the state court 
 will be reversed and an order made to transfer 
 the case to the circuit court for trial on the 
 merits ; 92 U. S. 10. If a cause be impro- 
 perly removed and the circuit court enter- 
 tains jurisdiction improperly, its judgment 
 will be reversed by the supreme court with 
 directions to the circuit court to remand the 
 same to the state court ; 20 Wall. 117. See 
 Dillon, Rem. of Causes ; Cooley, Const. 122. 
 
 REMOVAIi FROM OFFICE. A de- 
 privation of oifice by the act of a competent 
 officer or of the legislature. It may be ex- 
 press, that is, by a notification that the officer 
 lias been removed, or implied, by the appoint- 
 ment of another person to the same office ; 
 Wall. Jr. 118. See 13 Pet. 130; 1 Cra. 
 137. 
 
 REMOVER. In Practice. A transfer 
 of a suit or cause out of one court into another, 
 which is efifected by writ of error, certiorari, 
 and the like. 11 Co. 41. 
 
 REMUNERATION. Reward ; recom- 
 pense; salary. Dig. 17. 1. 7. 
 
 REITDER. To yield; to return; to give 
 again : it is the reverse of prender. 
 
 RENDEZVOUS. A place appointed for 
 meeting. Especially used of places appointed 
 for the meeting of ships and their convoy, 
 and for the meeting of soldiers. 
 
 RENEWAL. A change of something 
 old for something new ; as, the renewal of a 
 note; the renewal of a lease. See Nova- 
 tion ; 1 Bouvier, Inst. n. 800. 
 
 RENOUNCE. To give up a right : for 
 example, an executor may renounce the right 
 of administering the estate of the testator; 
 a widow, the right to administer to her intes- 
 tate husband's estate. 
 
 RENOUNCING PROBATE. Giving 
 Tip the right to be executor of a will, wherein 
 he has been appointed to that office, by re- 
 fusing to take out probate of such will. 1 
 Will. Exec. 230, 231 ; 20 & 21 Vict. c. 77, § 
 79; 21 & 22 Vict. c. 94, § 16. 
 
 RENT. (Lat. reditus, a return.) A re- 
 turn or compensation for the possession of 
 some corporeal inheritance, and is a certain 
 profit, either in money, provisions, or labor, 
 issuing out of lands and tenements, in return 
 for their use. 
 
 The compensation, either in money, provi- 
 sions, chattels, or labor, received by the owner 
 
 of the soil from the occupant thereof. Jacks. 
 & Gross, Landl. & T. § 38. 
 
 It has been held that a rent may issue out 
 of lands and tenements corporeal, and also, 
 out of them and their furniture, in this case 
 a dairy farm with its stock and utensils ; 31 
 Penn. 20 ; see as tp furnished lodgings ; 5 B. 
 & P. 224 ; 5 Co. 16 b. 
 
 Some of its common-law properties are that It 
 must be a profit to the proprietor, certain in its 
 character, or capable of being reduced to a cer- 
 tainty, issuing yearly, that is, periodically, out 
 of the thing granted, and not he part of the land 
 or thing itself; Co. Litt. 47 ; 2 Bla. Com. 41. 
 
 At common law there were three species of 
 rent : rent service, having some corporeal service 
 attached to the tenure of the land, to which the 
 right of distress was necessarily incident ; rent 
 charge, which was a reservation of rent, with a 
 clause authorizing its collection by distress ; and 
 rent seek, where there was no such clause, but 
 the rent could only be collected by an ordinary 
 action at law. These distinctions, however, for 
 all practical purposes, have become obsolete, in 
 consequence of various statutes both in England 
 and in this country, allowing every kind of rent 
 to be distrained for without distinction. See 
 Tayl. Landl. & T. § 370. 
 
 The payment of rent is incident to every 
 tenancy where the relation of landlord and 
 tenant subsists, except as to mere tenancies at 
 will or by sufferance, where this relation can- 
 not be said to exist. And no tenant can re- 
 sist a demand for rent unless he shows that he 
 has been evicted or become otherwise entitled 
 to quit the premises, and has actually done 
 so, before the rent in question became due. 
 By the strictness of the common law, when a 
 tenant has once made an agreement to pay 
 rent, nothing will excuse him from continuing 
 to pay, although the premises should be re- 
 duced to a ruinous condition by some una- 
 voidable accident of fire, flood, or tempest ; 6 
 Mass. 63 ; 4 Harr. & J. 564 ; 72 Penn. 285 ; 
 39 Cal. 151; 3 Johns. 44; 1 Term, 310; 2 
 Ld. Raym. 1477; 9 Price, 294. 
 
 But this severity of the ancient law has 
 been somewhat abated in this country, and in 
 this respect conforms to the more reasonable 
 provisions of the Code Napolfion, art. 1722, 
 which declares that if the thing hired is de- 
 stroyed by fortuitous events, during the con- 
 tinuance of the lease, the contract of hiring is 
 rescinded, but if it be only destroyed in part, 
 the lessee may, according to circumstances, 
 demand either a diminution of the rent or a 
 rescission of the contract itself. The same pro- 
 vision is to be found substantially in the Code 
 of Louisiana, art. 2667, and in the act of the 
 legislature of New York of 1860. In South 
 Carolina and Pennsylvania it was decided that 
 a tenant who had been dispossessed by a pub- 
 lic enemy ought not to pay rent for the time 
 the possession was withheld from him ; and in 
 Maryland it has been held that where a hurri- 
 cane rendered a house untenable it was a good 
 defence to an action for rent. But these cases 
 are evidently exceptions to the general rule of 
 law above stated ; 1 Bay, 499 ; 5 Watts, 517 ; 
 4 M'Cord, 447. Where land has been swept 
 
RENT 
 
 536 
 
 KENUNCIATION 
 
 away or gained upon by the sea, the lessee is 
 no longer liable for rent ; Bac. Abr. 63 ; 
 RoUe, Abr. 236. 
 
 The quiet enjoyment of the premises, un- 
 molested by the landlord, is an implied condi- 
 tion to the payment of rent. If, therefore^ he 
 ousts the tenant from any considerable portion 
 of the premises, or erects a nuisance of any 
 description upon or so near to them as to oblige 
 the tenant to remove, or if the possession of 
 the land should be recovered by a third per- 
 son, by a title superior to that of the landlord, 
 the dispossession in either case amounts to an 
 eviction, and discharges the obligation to pay 
 rent; 2 Ired. 350; 3 Harr. N. J. 364 ; 4 
 Wend. 432 ; 4 Leigh, 484 ; 4 N. Y. 217 ; 1 
 Ld. Raym. 77; IM. &W. 747; 91 Penn. 
 ,322; 106 Mass. 201 ; 54 N. H. 426; 49 Vt. 
 109; 31 Ala. 412. By retaining possession of 
 premises in spite of such acts of his landlord 
 as would otherwise amount to an eviction, a 
 tenant waives his right to withhold the rent ; 
 112 Mass. 8; 20 N. Y. 32. 
 
 As rent issues out of the land, it is said to 
 be incident to the reversion, and the right to 
 demand it necessarily attaches itself to the 
 ownership, and follows a transfer of the 
 premises, and the several parts thereof, with- 
 out the consent of the occupant. Every 
 occupant is chargeable with rent by virtue of 
 his occupation, whether he be the tenant or 
 an assignee of the tenant. The original ten- 
 ant cannot avoid his liability by transferring 
 his lease to another, but his assignee is only 
 liable so long as he remains in possession, and 
 may discharge himself by the simple act of 
 assigning over to some one else ; 14 Wend. 
 N. Y. 63 ; 1 N. & M'C. 104 ; 12 Pick. 460 ; 
 4 Leigh, 69 ; 2 Ohio, 221 ; 1 Wash. C. C. 
 375; 1 Rawle, 155; 3 B. & Aid. 396 ; 11 
 Ad. & E. 403 ; Cro. Eliz. 256 ; Co. Litt. 46 
 6 ; 2 Atk. 646 ; 3 Campb. 394. When rent 
 will be apportioned, see Apportionment ; 
 Landlord and Tenant. 
 
 The d'ay of payment depends, in the first 
 instance, upon the contract : if this is silent 
 in that respect, rent is payable quarterly or 
 half-yearly, according to the custom of the 
 country ; but if there be no usage governing 
 the case, it is not due until the end of the 
 terra. Formerly it was payable before sun- 
 set of the day whereon it was to be paid, on 
 the reasonable ground that sufficient light 
 should remain to enable the parties to count 
 the money ; but now it is not considered due 
 until midnight or the last minute of the natu- 
 ral day on which it is made payable ; 36 Penn. 
 272. This rule, however, may be varied by 
 the custom- of different places ; Co. Litt. 
 202 a ; 15 Pick. 147 ; 5 S. & R. 432. And 
 see Forfeiture; Re-entry. 
 
 Interest accrues on rent from the time it is 
 due, but cannot be included in a distress ; 1 7 
 S. & R. 390. 
 
 When rent is payable in money, it must 
 strictly be paid in legal-tender money ; with 
 respect to foreign coin he may decline to re- 
 ceive it except by its true weight and value. 
 
 Bank-notes constitute part of the currency of 
 the country, and ordinarily pass as money 
 and are a good tender, unless specially obi 
 jected to by the creditor at the time of the 
 offer; 10 Wheat. 347. Payment may be 
 made in commodities, when so reserved 
 If the contract specifies a place of payment 
 a tender of rent, whether in money or in 
 kind, must be made at that place ; but, if 
 no place is specified, a tender of either on the 
 land will be sufiScient to prevent a forfeiture ■ 
 16 Term, 222; 10 N. Y. 80; 4 Taunt. 555-! 
 Distress; Re-Entry; Ground-Eent. 
 
 RENT CHASG-E. A rent reserved with 
 a power of enforcing its payment by distress. 
 
 RENT ROLL. A list of rents payable 
 to a particular person or public body. 
 
 RENT SECK; A rent collectible only 
 by action at law in case of non-payment. 
 
 RENT SERVICE. A rent embracing 
 some corporal service attendant upon the 
 tenure of the land. Distress was necessarily 
 incident to such a rent. 
 
 RENT, ISSUES, AND FROHTS. 
 
 The profits arising from property generally. 
 This phrase in the Vermont statute has been 
 held not to cover " yearly profits ;" 26 Vt. 
 741. 
 
 RENTAL. A roll or list of the rents of 
 an estate, containing the description of the 
 lands let, the names of the tenants, and other 
 particulars connected with such estate. Thi» 
 is the same as rent-roll, from which it is said 
 to be corrupted. 
 
 RENTE. In French Law. A word 
 nearly synonymous with our word annuity. 
 RENTE FONCIERE. InFrenchLaw. 
 
 A rent which issues out of land ; and it is of 
 its essence that it be perpetual, for if it be 
 made but for a limited time it is a lease. It 
 may, however, be extinguished. La. Civ. 
 Code, art. 2750, 2759; Pothier. See 
 Ground- Rent. 
 
 RENTE VIAGERE. InFrenchLaw. 
 
 An annuity for life. La. Civ. Code, art. 
 2764; Pothier, Rente, n. 215. 
 
 RENUNCIATION. The act of giving 
 up a right. 
 
 It is a rule of law that any one may re- 
 nounce a right which the law has established 
 in his favor. To this maxim there are many 
 limitations. A party may always renounce 
 an acquired right : as, for example, to take 
 lands by descent ; but one cannot always give 
 up a future right before it has accrued, nor 
 the benefit conferred by law, although such 
 advantage may be introduced only for the 
 benefit of individuals. 
 
 For example, the power of making a will, 
 the right of annulling a future contract on the 
 ground of fraud, and the right of pleading 
 the act of limitations, cannot be renounced. 
 The first, because the party must be left free 
 to make a will or not ; and the latter two, 
 because the right has not yet accrued. 
 
REOPENING CASE 
 
 537 
 
 REPEAL 
 
 This term is usually employed to signify the 
 abdication or giving up of one's country at 
 the time of choosing another. The act of 
 congress requires from a foreigner who ap- 
 plies to become naturalized a renunciation of 
 all allegiance and fidelity to any foreign 
 prince, potentate, state, or sovereignty 
 whereof such alien may at the time be a 
 citizen or subject. See Morse, Citizen- 
 ship ; Citizen ; Expatriation ; Natu- 
 ralization. 
 
 REOPENING CASE. A court of equity, 
 in the exercise of a sound discretion, has full 
 power to reopen a case, and allow the correc- 
 tion of mistakes in testimony. Such appli- 
 cations are not favored, however, and, when 
 granted, miist be based upon strong circum- 
 stances to justify a deviation from the general 
 rule; 93 Penn. 214; Adams, Eq. 372; 8 
 Fhila. 380. See Rehearing. 
 
 REPAIRS. That work which is done to 
 an estate to keep it in good order. 
 
 What a party is bound to do, when the law 
 imposes upon him the duty to make necessary 
 ' repairs, does not appear to be very accu- 
 rately defined. Natural and unavoidable de- 
 cay in the buildings must always be allowed 
 for, when there is no express covenant to the 
 contrary ; and it seems the lessee will satisfy 
 the obligation the law imposes on him by de- 
 livering the premises at the expiration of his 
 tenancy in a habitable state. Questions in 
 relation to repairs most frequently arise be- 
 tween the landlord and tenant. 
 
 When there is no express agreement be- 
 tween the parties, the tenant is always re- 
 quired to do the necessary repairs ; Woodf. 
 Landl. & T. 244 ; 6 Cow. 475. He is, there- 
 fore, bound to put in windows or doors that 
 have been broken by him, so as to prevent 
 any decay of the premises ; but he is not re- 
 quired to put a new roof on an old worn-out 
 house ; 2 Esp. 590. 
 
 An express covenant on the part of the 
 lessee to keep a house in repair, and leave it 
 in as good a plight as it was when the lease 
 was made, does not bind him to repair the 
 ordinary and natural decay ; Woodf. Landl. 
 & T. 256. See 7 Gray, 550. And it has 
 been held that such a covenant does not bind 
 him to rebuild a house which had been de- 
 stroyed by a public enemy ; 1 Ball. 210 ; but 
 where in a lease there is an express and un- 
 conditional agreement to repair and keep in 
 repair, the tenant is bound to do so, though 
 the premises be destroyed by fire or accident ; 
 SlPenn. 88; 2 Wall. 1. 
 _ Repair means to restore to its former con- 
 dition, not to change either the form or ma- 
 terial of a building ; 63Penn. 162. When a 
 landlord covenants to repair, he is bound only 
 to restore to a sound state either what has 
 become decayed or dilapidated, or better, what 
 has been partially destroyed; his covenant 
 does not extend to improvements, nor to new 
 bnildings erected by the tenant ; 4 Penn. 364. 
 See 1 Dy. 33 a. 
 
 As to the time when the repairs are to be 
 made, it would seem reasonable that when 
 the lessor is bound to make them he should 
 have the right to enter and make them, when 
 a delay until after the expiration of the lease 
 would be injurious to the estate ; but when 
 no such damage exists, the landlord should 
 have no right to enter without the, consent of 
 the tenant. See 18 TouUier, n. 297. When 
 a house has been destroyed by accidental 
 fire, neither the tenant nor the landlord is 
 bound to rebuild, unless obliged by some 
 agreement so to do ; 4 Paige, Ch. 355 ; 1 
 Term, 708. See 6 Term, 650; 4 Camp. 
 275 ; 3 Ves. Ch. 34 ; Co. Litt. 27 a, note 1 
 3 Johns. 44 ; 6 Mass. 63 ; Piatt, Gov. 266 
 Comyns, Dig. Cnndilion (h 1 2) ; La. Civ 
 Code, 2070; 1 Saund. 322, n. 1, 323, n. 7 
 2 id. 158 J. n. 7 & 10; Jackson & Gross, 
 Landl. & T. 
 
 REPARATION. The redress of an 
 injury ; amends for a tort inflicted. See 
 Remedy. 
 
 REFARATIONE FACIENDA, -WRIT 
 
 DE (Lat.). The name of an ancient writ, 
 which lies by one or more joint tenants against 
 the other joint tenants, or by a person owning 
 a house or building against the owner of the 
 adjoining building, to compel the reparation 
 of such joint property. Fitzherbert, Nat. 
 Brev. 295. 
 
 REPEAL. The abrogation or destruction 
 of a law by a legislative act. 
 
 A repeal is express, as, when it is literally 
 declared by a subsequent law, or implied, 
 when the new law contains provisions con- 
 trary to or irreconcilable with those of the 
 former law. 
 
 A law may be repealed by implication, by 
 an affirmative as well as by a negative sta- 
 tute, if the substance is inconsistent with the 
 old statute ; 1 Ohio, 10 ; 2 Bibb, 96 ; Harp. 
 101 ; 4 Wash. C. C. 691 ; and a repeal by 
 implication has been efiected even where two 
 inconsistent enactments have been passed in 
 the same session ; 2 B. & Aid. 818 ; or where 
 two parts of the same act have proved repug- 
 nant to each other ; 4 C. B. Div. 29 ; but 
 this will be presumed only in extreme cases ; 
 13 C. B. 461. A repeal by implication is not 
 favored, the leaning of the courts is against 
 the doctrine, if it be possible to reconcile the two 
 acts together ; 1 Black, 470. 
 
 It is a general rule that when d penal sta- 
 tute punishes an offence by a certain penalty, 
 and a new statute is passed imposing agreater 
 or a lesser penalty for the same oft'ence, the 
 former statute is repealed by implication ; 5 
 Pick. 168 ; 3 Halst. 48; 3 A. K. Marsh. 70. 
 See 1 Binn. 601 ; Bacon, Abr. Statute (D) ; 
 but subsequent statutes which add accumula- 
 tive penalties do not repeal former statutes ; 
 1 Cowp. 297; 6 Mod. 141. 
 
 By the common law, when a statute repeals 
 another, and afterwards the repealing statute 
 is itself repealed, the first is revived ; 2 
 Blackf. 32. In some states this rule has been 
 
REPERTORY 
 
 538 
 
 REPLEGIARE FACIAS 
 
 changed, as in Ohio and Louisiana ; La. Civ. 
 Code, art. 23. 
 
 It has been held that when the repealing 
 clause in an unconstitutional statute repeals 
 all inconsistent acts, the repealing clause is to 
 stand and have efli'ect, notwithstanding the in- 
 validity of the act; 11 Ind. 489. But other 
 cases hold that such repealing clause is to be 
 understood as designed to repeal all conflicting 
 provisions, in order that those of the new sta- 
 tute can have effect, and that if the statute is 
 invalid, nothing can conflict with it, and there- 
 fore nothing is repealed ; 6 Wise. 605 ; 35 
 Barb. 264 ; Cooley, Const. Lim. 186. 
 
 When a law is repealed, it leaves all the 
 civil rights of the parties acquired under the 
 law unaffected; 3 La. 337; 4 id. 191 ; 2 
 South. 689 ; Breese, 29 ; 2 Stew. Ala. 160 ; 
 2 Wall. 450. An action for penalties cannot 
 be sustained when the statute inflicting them 
 has been repealed before judgment ; 13 How. 
 429 ; nor an action for the recovery of money 
 paid in violation of law, under similar circum- 
 stances ; 5 Blatch. 229. 
 
 When a penal statute is repealed or so mo- 
 dified as to exempt a class from its operation, 
 violations committed before the repeal are 
 also exempted, unless specifically reserved, 
 or unless there has been some private right 
 vested by it; 2 Dana, 330; 4 Yeates, 392; 5 
 Rand. 657 ; 1 Wash. C. C. 84 ; 2 Va. Cas. 
 382. See, generally, Dwarris, Wilberforce, 
 Statutes. 
 
 REFERTOR'S'. In French Law. A 
 
 word used to denote the inventory or minutes 
 which notaries are required to make of all 
 contracts which take place before them. Dal- 
 loz, Diet. 
 
 REPETITION. In CivU Law. The 
 
 act by which a person demands and seeks to 
 recover what he has paid by mistake or de- 
 livered on a condition which has not been per- 
 formed. Dig. 12. 4. 5. 
 
 The name of an action which lies to recover 
 the payment which has been made by mistake, 
 when nothing was due. 
 
 Repetition is never admitted in relation to 
 natural obligations which have been volun- 
 tarily acquitted, if the debtor had capacity to 
 give his consent. 6 TouUier, 386. 
 
 In order to entitle the payer to recover 
 back money paid by mistake, it must have 
 been paid by him to a person to whom he did 
 not owe it, for otherwise he cannot recover it 
 back, — the creditor having, in such case, the 
 just right to retain the money. Repetitio 
 nulla est ah eo qui suum recepit. 
 
 How far money paid under a mistake of 
 law is liable to repetition has been discussed 
 by civilians ; and opinions on this subject are 
 divided. 2 Pothier, Obi. Evans ed. 369, 
 408-437 ; 1 Story, Eq. PI. § 111, note 2. 
 
 In Scotch Law. The act of reading over 
 a witness's deposition, in order that he may 
 adhere to it or correct it, at his choice. The 
 same as recolement (5. f.) in the French 
 law. 2 Benth. Ev. 239. See Legacy. 
 
 REPLEADER. In Pleading. Making 
 a new series of pleadings. 
 
 Judgment of repleader differs from a juder 
 ment non obstante veredicto in this : that it i« 
 allowed by the court to do justice between the 
 parties where the defect is in the form or man- 
 ner of stating the right, and the issue joined is 
 on an immaterial point, so that it cannot tell for 
 whom to give judgment ; 7 Mass. 312 ; 3 Pick 
 124 ; 19 id. 419 ; while judgment non obstante is 
 given only where it is clearly apparent to the 
 court that the party who has succeeded has, up- 
 on his own 8ho\^lng, no merits, and cannot have 
 by any manner of statement ; 1 Chittv. PI. 568 
 See 19 Ark. 194. j. ^. 
 
 It may be ordered by the court for the pur- 
 pose of obtaining a better issue, if it will 
 effect substantial justice where issue has been 
 reached on an immaterial point ; 3 B. & P. 
 353; 2 Johns. 388; 16 id. 230; 3 Hen. & 
 M. 118, 161; as, a plea of payment on a 
 given day to an action on a bond conditioned 
 to pay on or before that day ; 2 Stra. 994. 
 It is not to be allowed till after trial for a de- 
 fect which is aided by verdict ; 2 Saund. 319 
 b ; Bacon, Abr. Pleas. If granted or denied 
 where it should not be, it is error; 2 Salk. 
 679. See 9 Ala. N. 8. 198. 
 
 The judgment is general, and the parties 
 must begin at the first fault which occasioned 
 the immaterial issue ; 1 Ld. Eaym. 169;' en- 
 tirely anew, if the declaration is imperftetj' 1 
 Chitty, PL 568 ; that the action must be dis- 
 missed in such case ; 1 Wash. Va. 136 ; witli 
 the replication, if that be faulty and the bar 
 be good ; 3 Keb. 664 ; 1 Wash. Va. 155. 
 No costs are allowed to either side ; 2 Ventr. 
 196 ; 6 Term, 131 ; 2 B. & P. 376. 
 
 It cannot be awarded after a default at nisi 
 prius ; 1 Chitty, PI. 568 ; nor where the 
 court can give judgment on the whole record ; 
 Willes, 532 ; nor after demurrer ; 2 Mass. 
 81 ; unless, perhaps, where the bar and re- 
 plication are bad ; Cro. Eliz. 318 ; 7 Me. 
 302 ; nor after writ of error, without the con- 
 sent of the parties ; 3 Salk. 306 ; nor at any 
 time in favor of the person who made the 
 first fault; 1 Ld. Raym. 170; 1 Hempst. 
 268 ; 1 Humphr. 85 ; 6 Blackf. 375; see 3 
 Hen. &M. 388; nor after judgment ; 1 Tyl. 
 Vt. 146. The same end is secured in many 
 of the states bv statutes allowing amend- 
 ments. See, eenerally, Tidd. Pr. 813, 814; 
 Corny ns. Dig." Pleader (R. 18) ; Bacon, Abr. 
 Pleas (M). 
 
 REPLEGIARE (Lat.). To replevy ; to 
 redeem a thing detained or taken by another, 
 by putting in legal sureties. 
 
 REPLEGIARE DB AVEEIIS (Lat,). 
 A writ brought by one whose cattle are im- 
 pounded or distrained, upon security given to 
 the sheriff to pursue or answer the action at 
 law. 7 Hen. VIII. c. 4 ; Fitzh. N. B. 68; 
 New Book of Entries, Replevin; Dy. If3| 
 Reg. Orig. 81. 
 
 REPLEGIARE FACIAS (Lat.). A 
 writ of replevin, which issued out of chancery, 
 commanding the sheriff to deliver the distress 
 
REPLEVIN 
 
 539 
 
 KEPLEVY 
 
 to the owner, and afterwards to do justice in 
 regard to the matter in his own county court. 
 It was abolished by statute of Marlbridge (g. 
 v.), which provided a shorter process. 8 
 Sharsw. Bla. Com. 147*. 
 
 REPLEVIN. In I>ractice. A form of 
 action which lies to regain the possession of 
 personal chattels which have been taken from 
 the plaintiff unlawfully. 
 
 The action originally lay for the purpose of re- 
 covering chattels taken as a distress, but has 
 acquired a much more extended use. In Eng- 
 land and most of the states of the United States 
 it extends to all cases of illegal taking, and in 
 some of the states it may be brought wherever a 
 person wishes to recover specific goods to which 
 he alleges title. See infra. 
 
 By virtue of the writ, the sheriff proceeds at 
 once to take possession of the property therein 
 described and transfer it to the plaintiff, upon his 
 giving pledges which are satisfactory to the sheriff 
 to prove his title, or return the chattels taken if 
 he fail so to do. It is said to have laid formerly 
 in the detinuit, which is the only form now found 
 at common law, and also in the detinet, where 
 the defendant retained possession, and the sheriff 
 proceeded to take possession and deliver the pro- 
 perty to the plaintiff after a trial and proof of 
 title ; Bull. N. P. 52 ; Chitty, PI. 145 ; 3 Bla. 
 Com. 146 ; Detinet ; Dbtinhit. 
 
 It differs from detinue in this : that it requires 
 an unlawful taking as the foundation of the ac- 
 tion ; and from all other personal actions in that 
 it is brought to recover the possession of the 
 specific property claimed to have been unlawfully 
 taken. 
 
 The action lies to recover personal property ; 
 19 Penn. 71 ; including parish records ; 11 
 Pick. 492 ; trees after they have been cut 
 down; 2Barb. 613; 9 Mo. 259 ; 13111.192; 
 records of a corporation ; 5lnd, 165; articles 
 which might be fixtures under some circum- 
 stances; 4 N. J. 287; which can be specifi- 
 cally distinguished from all other chattels of 
 the same kind by indicia or ear-marks ; 18 HI. 
 286 ; including money tied up in a bag and 
 taken in that state ; 2 Mod. 61 ; trees cut into 
 boards; 30 Me. 370; 13 111. 192; but does 
 not lie for injuries to things annexed to the 
 realty; 4 Term, 504; 2 M'Cord, 329; 17 
 Johns. 116; 10 B. Monr. 72; nor to recover 
 such things, if dissevered and removed as part 
 of the same act; 3 S. & R. 509. 6 Me. 427 ; 
 8 Cow. 220 ; nor for writings concerning the 
 realty; 1 Brownl. 168. 
 
 A general property with the right to imme- 
 diate possession gives the plaintiff sufficient 
 title to maintain it ; 3 Wend. 280 ; 15 Pick. 
 63 ; 9 Gill & J. 220 ; 2 Ark. 315 ; 4 Blackf. 
 304; 8 Dana, 268; 27 Miss. 198; 2 Swan, 
 358 ; as do a special property and actual pos- 
 session ; 2 Watts, 110 ; 2 Ark. 315 ; 4 Blackf. 
 304; 10 Mo. 277; 9 Humphr. 739; 2 Ohio 
 St. 82. 
 
 It will not lie for the defendant in another 
 action lo recover goods belonging to him and 
 taken on attachment; 5 Co. 99; 20 Johns. 
 470 ; 2 N. H. 412 ; 2 B. Monr. 18 ; 3 Md. 
 64 ; nor, generally, for goods properly in the 
 custody of the law ; 2 N. & M'C. 456 ; 3 Md. 
 
 887; 16 How. 622; 3 Mich. 163; Hempst. 
 10 ; 2 Wise. 92 ; 1 Sneed, 390 ; but this rule 
 does not prevent a third person, whose goods 
 have been improperly attached in such suit, 
 from bringing this action; 4 Pick. 167 ; 14 
 Johns. 84 ; 20 id. 465 ; 6 Halst. 370 ; 2 
 Blackf. 172; 7 Ohio, 133; 19 Me. 255; 
 
 9 Gill & J. 220; 24 Vt. 371. 
 As to the rights of co-tenants to bring this 
 
 action as against each other, see 1 H arr. & 
 G. 308; 12 Conn. 331; 15 Pick. 71; as 
 against strangers, see 4 Mas. 515; 12 Wend. 
 131 ; 15 Me. 245 ; 2 N. J. 552 ; 27 N. H. 
 220 ; 6 Ind. 414. 
 
 The action lies, in England and most of the 
 United States, wherever there has been an 
 illegal taking; 18 E. L. & E. 230 ; 7 Johns. 
 140 ; 5 Mass. 283 ; 6 Binn. 2 ; 3 S. & R. 
 562; 1 Mas. 319; 11 Me. 28; 27 id. 453; 
 2 Blackf. 415 ; 1 Const. 401 ; 3 N. H. 36 ; 
 
 10 Johns. 369; 6 Halst. 370; 1 111. 130; 1 
 Mo. 345; 6 T. B. Monr. 421; 6 Ark. 18; 
 4 Harr. Del. 327 ; and in some states wher- 
 ever a person claims title to specific chattels 
 in another's possession ; 2 Harr. & J. 429 ; 
 4 Me. 306; 15 Mass. 359; 17 id. 666; 1 
 Penn. 238 ; 11 Me. 216 ; 4 Harr. N. J. 160 ; 
 4 Mo. 93; 8 Blackf. 244; Hempst. 10; 4 
 R. I. 539 ; while in others it is restricted to 
 a few cases of illegal seizure ; 9 Conn. 140 ; 3 
 Rand. 448; 16 Miss. 279; 4 Mich. 295. 
 The object of the action is to recover posses- 
 sion ; and it will not lie where the property 
 has been restored. And when brought in the 
 detinet the destruction of the articles by the 
 defendant is no answer to the action ; 8 Bla. 
 Com. 147. 
 
 The declaration must describe the place of 
 taking. Great accuracy was formerly required 
 in this respect; 2 Wms. Saund. 74 6 ; 10 
 Johns. 53 ; but now a statement of the county 
 in which it occurred is said to be sufficient ; 
 1 P. A. Browne, 60. 
 
 The chattels must be accurately described 
 in the writ ; 6 Halst. 179; 1 Harr. & G. 252 ; 
 4 Blackf. 70 ; 1 Mich. 92. 
 
 The plea of non cepit puts in issue the 
 taking, and not the plaintiff's title ; 6 Ired. 
 38; 25 Me. 464; 8 N. Y. 506; 2 Fla. 42; 
 12 111. 378; and the pleas, not guilty; 9 
 Mo. 256 ; cepit in alio loco, and property in 
 another, are also of frequent occurrence. 
 
 An avowry, cognizance, or justification are 
 often used in defence. See those titles. 
 
 The judgment, when the action is in the 
 detinuit, if for the plaintiff, confirms his title, 
 and is also for damages assessed by the jury 
 for the injurious taking and detention ; 1 W. 
 & S. 518; 20 Wend. 172; 15 Me. 20; 1 
 Ark. 557 ; 5 Ired. 192. 
 
 See Judgment ; Morris, Repl.; Jacks. & 
 Gross, Landl. & T. 
 
 REPLEVY. To re-deliver goods which 
 have been distrained to the original possessor 
 of them, on his giving pledges in an action 
 of replevin. It signifies also the bailing or 
 liberating a man from prison, on his finding 
 
 04; 7 Watts, 173; 4 Ark. 525; 8 Ired. | bail to answer. See Replevin. 
 
REPLIANfT 
 
 940 
 
 REPORTS 
 
 REPLIANT. One who makes a replica- 
 tion. 
 
 REPLICATION (Lat. replicare, to fold 
 back). 
 
 In Pleading. The plaintiflf's answer to 
 the defendant's plea or answer. 
 
 In Equity. The plaintifl's avoidance or 
 denial of the answer or defence. Story, Eq. 
 PI. § 877. 
 
 A general replication is a general denial of 
 the truth of the defendant's plea or answer, 
 and of the sufficiency of the matter alleged 
 in it to bar the plaintiffs suit, and an asser- 
 tion of the truth and sufficiency of the bill. 
 Cooper, Eq. PI. 329, 330. 
 
 A special replication was one which intro- 
 duced new matter to avoid the defendant's 
 answer. It might be followed by rejoinder, 
 surrejoinder, and rebutter. Special replica^ 
 tions have been superseded by the practice 
 of amending bills ; 1 How. Intr. 55 ; 17 Pet. 
 App. 68. A replication must be made use of 
 where the plaintiff intends to introduce evi- 
 dence, and a subpoena to the defendant to 
 rejoin must be added, unless he will appear 
 gratis; Story, Eq. PI. § 879. 
 
 A replication may be filed nunc pro tunc 
 after witnesses have been examined under 
 leave of court ; Story, Eq. PI. § 881 ; Mitf. 
 Eq. PI. by Jeremy, 323. 
 
 At La-w. The plaintiffs reply to the de- 
 fendant's plea. It contains a statement of 
 matter, consistent with the declaration, which 
 avoids the effect of the defendant's plea or 
 constitutes a joinder in issue thereon. 
 
 It is, in general, governed by the plea, 
 whether dilatory or in bar, and most fre- 
 quently denies it. When the plea concludes 
 to the country, the plaintiff must generally 
 reply by a similiter. See Simiotee ; Hempst. 
 67. When it concludes with a verification, 
 the plaintiff" may either conclude the defen- 
 dant by matter of estoppel, deny the truth of 
 the plea in whole or in part, confess and avoid 
 the plea, or new assign the cause of action in 
 case of an evasive plea. Its character varies 
 with the form of action and the facts of the 
 case. See 1 Chitty, PI. 519. 
 
 As to the form of the replifcation : 
 
 The title contains the name of the court, 
 and the term of which it is pleaded, and in 
 the margin the names of the plaintiff and de- 
 iendant. 2 Chitty, PL 641. 
 
 The commencement is that part which im- 
 mediately follows the title, and contains a 
 general denial of the effect of the defendant's 
 plea. When the plea is to the jurisdiction, 
 it contains a statement that the writ ought not 
 to be quashed, or that the court ought not to 
 be ousted of their jurisdiction. Rastell, Entr. 
 101. W^en misnomer is pleaded, no such 
 allegation is required; 1 B. & P. 61. 
 
 When matter in estoppel is replied, it is, 
 in general, in the words "and the said plain- 
 tiff saith that the said defendant." 
 
 When the replication denies or confesses 
 and avoids the plea, it contains a precludi non, 
 which see. 
 
 The hody should contain — 
 
 Matter of estoppel, which should be set 
 forth in the replication if it does not appear 
 from the previous pleadings : as, if the mat- 
 ter has been tried upon a particular issue in 
 trespass and found by the jury ; 3 East, 346 • 
 4 Mass. 443 ; 4 Dana, 73 ; denial 'of tU 
 truth of the plea, either of the whole plea 
 which may be by a denial of the fact or facte 
 constituting a single point in express words • 
 12 Barb. 573 ; 36 N. H. 232; 28 Vt. 279- 
 1 Humphr. 524 ; or by the general rcplical 
 tion and injuria, etc., according to the form 
 of action; 8 Co. 67 ; 1 B. & P. 79; 13 HI 
 80 ; 19 Vt. 329 ; or of a part of the plea, 
 which may be of any material fact; 20 
 Johns. 406 ; 13 T. B. Monr. 288 ; and of 
 such only ; 20 N. H. 323 ; 37 E. L. & E 
 479 ; 9 Gill, 310 ; 3 Pet. 31 ; or of matter of 
 right resuhing from facts ; 1 Saund. 23 a, n. 
 5; 10 Ark. 147; see 2 Iowa, 120; and see Tba- 
 verse; a confession and avoidance ; 23 N. 
 H. 585 ; 2 Denio, 97 ; 10 Mass. 226 ; see 
 Confession and Avoidance ; a new as- 
 signment, which see. 
 
 The conclusion should be to the country 
 when the replication denies the whole of the 
 defendant's plea containing matter of fact; 2 
 McLean, 92 ; 7 Pick. 117 ; 1 Johns. 616 ; as 
 well where the plea is to the jurisdiction; 
 Clifton, Entr. 17: 1 Chitty, PI. 385; as in 
 bar ; 1 Chitty, PI. 554 ; but with a verifica- 
 tion when new matter is inti-oduced; 1 
 Saund. 103, n.; 17 Pick. 87; 1 Brev. U ; 11 
 Johns. 56. See 5 Ind. 264. The couolu- 
 sions in particular cases are stated in I Chitty, 
 PI. 615; Comyns, Dk. Pleader (F 5). See 
 1 Saund. 103, n.; 1 Johns. 616; 2 id. 428; 
 Archb. Civ. PI. 258 ; 19 Viner, Abr. 29; 
 Bacon, Abr. Trespass (I 4). 
 
 As to the qualities of a replication. It 
 must be responsive to the defendant's plea, 
 17 Ark. 365; 4 McLean, 521; answering all 
 which it professes to answer; 12 Ark. 188; 
 8 Ala. N. s. 875; and if bad in part is bad 
 altogether; 1 Saund. 338; 7 Cra. 156; 32 
 Ala. N. 8. 506 ; directly; 10 East, 205; see 
 7 Blackf. 481 ; without departing from the 
 allegations of the declaration in any material 
 matter; 2 Watts, 306; 4 Munf. 206; 2 
 Root, 388 ; 22 N. H. 303 ; 5 Blackf 306,; 
 4 M'Cord, 93 ; 1 111. 26; see Dkpabtuke; 
 with certainty ; 6 Fla. 25 ; see Certaikty ; 
 and without duplicity; 4 111. 423; 2 Halst. 
 77; Daveis, 236; 14 N. H. 373; Hempst. 238; 
 26 Vt. 397 ; 4 Wend. 211 ; see Dupli- 
 city. 
 
 REPLY. In England in public prosecu- 
 tions for felony or misdemeanor, instituted by 
 the Crown, the law officers have a general 
 right of reply, whether the defendant has in- 
 troduced evidence or not; but prosecuting 
 counsel in ordinary cases have not this ridit. 
 See 6 Law Mag. & Rev. 4 Ser. 102. See 
 Opening and Closing ; Right to Begin. 
 
 REPORTS. A printed or written collec- 
 tion of accounts or relations of cases judicially 
 argued and determined. 
 
REPORTS 
 
 S41 
 
 REPORTS 
 
 In the jurisprudence of nearly every civilized 
 country, the force of adjtidicated precedents is to a 
 greater or less degree acknowledged. But in no 
 countries are they so deferentially listened to and, 
 indeed, so implicitly obeyed as in England and 
 in those countries which, like our own, derive 
 their systems of judicial government from her. 
 The European systems are composed, much 
 more than either ours or the English, of Codes ; 
 and their courts rely far more than ours upon 
 the opinions of eminent text-writers. With us 
 we pay no implicit respect to any thing but a 
 " case in point ;" and, supposing the case to be 
 by an authoritative court, when that is cited, it 
 is generally taken as conclusive on the question 
 in issue: Hence both the English and American 
 Jurisprudence is filled with books of Reports ; 
 that is to say, with accounts of cases which have 
 arisen, and of the mode in which they have been 
 argued and decided. These books, which until 
 the last half-century were not numerous, have 
 now become, as will be seen In the list appended, 
 or are becoming, almost infinite in number, — so 
 much so that the profession has taken refuge in 
 the system ot Leading Gases, which, in the forms 
 of Smith's Leading Cases, The American Lead- 
 ing Cases, and White & Tudor's Leading Cases 
 in Equity, and many others, have now obtained 
 a place in most good libraries. 
 
 Of these late years, in the United States at least, 
 it is usual for the courts to write tmt their opinions 
 and to deliver them to the reporter : so that 
 usually the opinion of the court is correctly given. 
 At the same time, the volumes of different re- 
 porters, even of quite modern times, are very dif- 
 ferent in character,— the accounts of what the 
 eases were being often so badly presented as to 
 render the opinion of the courts, even when the 
 ■opinions themselves are good, comparatively 
 worthless. In addition to this, an immense pro- 
 portion of the reports — especially of the Ameri- 
 can — are by courts of no great eminence or abil- 
 ity, while in England, with their system of rival 
 reporters, we have at times been borne down 
 with such a multitude of " Reports " that the 
 eases are fairly buried in their own masses. 
 
 A late writer estimates the entire number of 
 reports published, on April 1, 1882, exclusive of 
 -numerous periodicals, at 5233. See 16 Am. L. 
 Rev. 429. 
 
 We are speaking here of the business of report- 
 ing as practised say since the year 1800. Prior 
 to this date there were only one or two American 
 Reports. In England, however, there were even 
 then very many, and among the English Keports 
 prior to the date of which we speak are many of 
 the highest authority, and which are constantly 
 cited at this day both in England and America. 
 'There are, however, many also of very bad au- 
 thority, and, indeed, of no authority at all ; and 
 against these the lawyer must be upon his guard. 
 They are all called "Keports" alike, and in 
 many cases have the name of some eminent per- 
 son attached to them, when, in fact, they are 
 mere forgeries so far as that person is concerned. 
 Nothing can he so various, as respects their grade 
 •nf merit, as the English Reports prior to about the 
 year 1776 ; and the lawyer should never rely on 
 any one of them without knowing the character 
 of the volume which he cites. They are often 
 mere note-books of lawyers or of students, or 
 copies hastily and very inaccurately made from 
 genuine manuscripts. In some instances one 
 part of a book is good, when another is perfectly 
 worthless. This is specially true of the early 
 •Chancery Reports, which were generally printed 
 as booksellers' "jobs." 
 
 Great judicial mistakes have arisen, even with 
 the most able courts, from want of attention to 
 
 the different characters of the old reporters. One 
 illustration of this — not more striking, perhaps, 
 than others — occurred in the supreme court of 
 our own country. " It is well known," says Mr. 
 J. W. Wallace, in his work entitled " The Re- 
 porters," " that, in a leading case, Chief-Justice 
 Marshall, some years since, gave an opinion 
 which had the effect of almost totally subvert- 
 ing, in two states of our Union, the entire law of 
 charitable uses. And though some other states 
 did not adopt the conclusions of the chief-justice, 
 his venerated name was seized in all quarters of 
 the country to originate litigation and uncer- 
 tainty, and deeply to wound the Jwhole body 
 of trusts for religious, charitable, and literary 
 purposes. For a quarter of a century the influ- 
 ences of his opinion were yet active in evil, — 
 when, in 1844, an endeavor to subvert a large 
 foundation brought the subject again before the 
 court, in the Girard College case, and caused a 
 more careful examination into it. The opinion 
 of Chief-Justice Marshall was in review, and 
 was overruled. Mr. Binney showed at the bar 
 that as to the principal authority cited by the 
 chief-justice, from one of the old books, there 
 were no less than four different reports of it, all 
 variant from each other ; that, as to one of the 
 reporters, the case had been decided thirty years 
 before the time of his report ; that he was not 
 likely to know anything personally about it; 
 that ' he certainly knew nothing about it accu- 
 rately ;' that another reporter gave two versions 
 of the case ' entirely different,' not aplj from 
 that of his co-reporter, but likewise from 
 another of his own ; that a fourth account, by a 
 yet distinct reporter, was ' different from all the 
 rest ;' that ' nothing is to be obtained from any 
 of these reports, except perhaps the last that is 
 worthy of any reliance as a true history of the 
 case ;' and that even this, the best of them, had 
 been rejected in modem times, as ' being con- 
 trary to all principle.' After such evidence that 
 these judicial historians, like others of the title, 
 were full of nothing so much as of ' most excel- 
 lent differences,' the counsel might very well ob- 
 serve that it is ' essentially necessary to guard 
 against the indiscriminate reception of the old 
 reporters, especially the Chancery Reporters, as 
 authority ;' and certainly a knowledge less than 
 that which Chief-Justice Marshall possessed in 
 some other branches of the law would have re- 
 minded him that most of his authorities enjoyed 
 a reputation but dubiously good, while the - 
 character of one of them was notoriously bad." 
 Among the English Reporters the following 
 possess little authority ; Noy, Godbolt, Owen, 
 Popham, Winch, March, Button, Ley, Lane, 
 Hetley, Carter, J. Bridgman, Keble, Siderfin, 
 Latch, several volumes of the "Modern" Re- 
 ports, 3d Salkeld, Gilbert's Cases in Law and 
 Equity, the 1st and 2d parts of " Reports in 
 Chancery," Chancery Cases, Reports temp. 
 Finch, "Gilbert's "Reports," 8th Taunton, 
 Peake's Nisi Prius Reports. See comments, 
 infra, under some of the old reports, and the 
 articles in So. L. Rev. referred to infra. But 
 even in books of the worst authority there are 
 occasionally cases well reported. The fullest 
 account which has yet been given of the Repor- 
 ters — their chronological order, their respective 
 merits, the history, public and private, of the 
 volumes, with biographical sketches of the auth- 
 ors — is presented in an American work, " The 
 Reporters, Chronologically Arranged ; with Oc- 
 casional Remarks on their Respective Merits." 
 The author (Mr. Wallace) spent a considerable 
 time at Lincoln's Inn, and at the Temple, Lon- 
 don, from the libraries of which he collected 
 much history hitherto not generally known. In 
 
REPORTS 
 
 542 
 
 REPORTS 
 
 the case of FarraUX vs. Milditch, 6 C. B. N. s. 854, 
 the work received from the judges of the court 
 of common pleas, sitting in banc at Westmin- 
 ster, the characterization of " highly valuable 
 and interesting," and one to which, " they could 
 not refrain from referring" on a question invol- 
 ving the reputation of one of the e»rly English 
 reporters. 
 
 See an interesting article on Reports, Repor- 
 ters, and Reporting, in 5 So. Law Rev. N. s. 53 ; 
 and a series of articles by F. F. Heard, on the 
 Reporters, etc., in 1 So. Law Rev. N. s. 86, 923, 
 497, 3 id. 268. A series of articles in 3 Alb. L. 
 J. et seq, gives accounts of various state reports 
 and reporters. See Marvin's Legal Bibliography. 
 
 The following list of reports is based upon the 
 list in the preceding edition of this work, pre- 
 pared by Prof. Theodore W. Dwight, of Colum- 
 bia College, New York. Numerous additions, 
 made necessary by the publication of subsequent 
 volumes of reports, and such corrections as were 
 found necessary, have been made with the assist- 
 ance of W. D. Kndlay, formerly assistant to the 
 present editor in charge of the Philadelphia Law 
 Library, now 6f Boston. A very valuable list of 
 reports by N. C. Moak may be found in the law 
 catalogue of William Gould <& Son, Albany. 
 
 Abbott (Austin). New Cases, selected chiefly 
 from decisions of the Cts. of New York, 1876- 
 82. 9 vols. 
 
 Abbott (Austin). New York Ct. of Apps. De- 
 cisions, cases not reported by the Official Re- 
 porter, 1850-69. 4 vols. 
 
 Abbott (B. v.). U. S. Cir. and Dist. Cts., vari- 
 ous circuits and districts, 1863-71. 3 vols. 
 
 Abbott (Austin <& Benjamin V.). Cases in 
 Admiralty in the U. S. Dist. Ct., Southern 
 Dist. of New York, 1847-50. 1 vol. 
 
 Abbott (Austin & Benjamin V.). Practice 
 Reports in the Cts. of New York, 1854-65. 19 
 vols. 
 
 Abbott (Austin & Benjamin V.). Practice 
 Reports in the Cts. of New York, New Series ; 
 1865-76. 16 Vols. 
 Vol. 1-7, by A. & B. V. Abbott. 
 8-16, " Austin Abbott. 
 
 Abbreviatio Placitorum. K. B., 1272-1327. 1 
 vol. 
 
 Abridgment of Cases in Equity. See Equity 
 Cases Abridged. 
 
 Acta Cancellariae. See Monro. 
 
 Acton (Thomas H. ) . Prize Cases on App. before 
 the Lords Commissioners and in Council, 1809- 
 11. 2 vols.; vol. 2 cont. 135 pp. and 23 pp. of 
 app. 
 
 Adams (John M.). See Maine. 
 
 Adams (Nathaniel). See New Hampshire. 
 
 Addams (J.). Eccl. Cts. at Doctors' Commons 
 and High Ct. of Delegates, 1822-26. 3 vols.; 
 vol. 3 cont. 284 pp. 
 
 Addison (Alexander). Penna. County Cts., 
 Fifth Cir. , and Ct. of Errors, 1791-99. 1 vol. 
 
 Adolphus (J. L.) & Ellis (T. F.). K. B., 1834^ 
 41. 12 vols. 
 
 Adolphus (J. L.) & Ellis (T. F.). New 
 Series. See Queen's Bench. 
 
 Agra. High Courts Reports, India, 1866-8. 2 
 vols. 
 
 Aikens (Asa). Vermont Sup. Ct., 1826-27. 
 2 vols. 
 
 Alabama. Supreme Court, 1820-39. 18 vols. 
 Vol. 1, 1820-26. Henry Minor. 
 
 2-4, 1827-31. George N. Stewart. 
 
 10-18, 
 
 1834-39. 
 
 New Series, 1840-80. 
 
 Vol. 1-11, 
 
 1840-47. 
 
 12-15, 
 
 1847-49. 
 
 16-18, 
 
 1849-51. 
 
 19-21, 
 
 1851-52. 
 
 22,23, 
 
 1853. 
 
 34^41 
 
 1853-69. 
 
 42, 
 
 1869. 
 
 43-48, 
 
 1869-72. 
 
 49-52, 
 
 1873-74. 
 
 53-57, 
 
 1875-77. 
 
 58, 
 
 1877. 
 
 59 
 
 1877. 
 
 60 
 
 1877. 
 
 61,62, 
 
 1878. 
 
 63-65, 
 
 1880. 
 
 Vol. 5-9, 1831-34. George N. Stewart & 
 Benj. F. Porter. 
 Benjamin F. Porter. 
 65 vols. 
 The Judges. 
 J. J. Ormond. 
 N. W. Cocke. 
 J. W. Shepherd. 
 The Judges. 
 J. W. Shepherd. 
 J. L. C. Danner. 
 T. G. Jones. 
 J. W. Shepherd. 
 T. G. Jones. 
 F. B. Clark. 
 J. W. A. Sanford. 
 J. W. Shepherd. 
 T. G. Jones. 
 J. W. Shepherd. 
 See Shepherd. 
 Albany Law Journal. Albany, N. T., 1870-82. 
 26 vols ; weekly. 
 
 Alcock (John C.) . Registration Cases in Ire- 
 
 land, 1832-41. 1 vol. of 344 pp. 
 Alcock (John C.) & Napier (Joseph). K. B. 
 
 and Ezch. in Ireland, 1831-33. 1vol. 
 Alden (T. J. F.). Index to Decisions of U. 8. 
 
 Sup. Ct. from Dallas to 14 Howard. 8 vols. 
 
 This is not properly classed with reports, 
 
 though sometimes quoted as such. 
 Aleyn (John). K. B., 1646-48. 1 vol. These 
 
 are reports of cases in the time of the cirt 
 
 wars of Charles I., and do not possess much 
 
 authority, though containing reports of RoUe'i 
 
 decisions. 
 Allen (Charles). See Massachusetts. 
 Allen (Charles). Telegraph Cases, in America, 
 
 Great Britain and Ireland, to 1873. 1 vol. 
 Allen (John B.). See Washington Territory. 
 Allen (John C). Cases in the Sup. Ct. of New 
 
 Brunswick, 1848-66. 6 vols. 
 Ambler (Charles) . Cases in the High Court of 
 
 Ch. 1737-83. Second edition,.by J. E. Blunt. 
 
 2 vols. As originally published, of very little 
 authority, and much improved by Mr. Blunt, 
 whose edition was published in 1838. 
 
 American Civil Law Journal. New York, 1873, 
 only 112 pages published. 
 
 American Corporation Cases. See Withrow. 
 
 American Criminal Reports. Containing the 
 latest and most important criminal cases de- 
 cided in the Federal and State Cts. of the U. 
 S. and selected cases from the English, Irish, 
 Scotch, and Canadian Law Reporte, 1875-83. 
 
 3 vols, by John G. Hawley. 
 
 American Decisions. Containing the cases of 
 general value and authority in the courts of 
 last resort of the several states, from the earliest 
 State Reports to 1869. Compiled and anno- 
 tated (1-11) by John Profi'att and (13-36) by 
 A. C. Freeman. 36 vols. Giving the Decisions 
 to 1841. 
 
 American Insolvency Reports. New York, 1879- 
 81. 1vol. 
 
 American Jurist & Law Magazine. Bost 
 1829-i3. 28 vols. Quarterly. 
 
 American Law Journal. See Hall (John E.). 
 
 American Law Journal. New Series. PhSadel- 
 phia, 1848-52. 4 vols. Monthly. 
 
 American Law Magazine. Philadelphia, 184S- 
 46. 6 vols. Quarterly. 
 
 American Law Magazine. Chicago, 1882. 1 vol. 
 Monthly. 
 
KEPOKTS 
 
 643 
 
 REPORTS 
 
 CincinnaU, 1872-83. 10 
 
 American Law Record 
 
 vols. Monthly. 
 American Law Register. Philadelphia, 1852-61. 
 
 9 vols. Monthly. 
 American Law Register. New Series. Philadel- 
 phia, 1861-82. 21 vole. Monthly. 
 American Law Reporter. Davenport, Iowa, 
 
 1875. Weekly, 15 numbers published. 
 American Law Review. Boston, 1866-82. 16 
 
 vols., 1st 13 vols, quarterly ; now monthly. 
 American Law Times. Washington, D. C, 
 
 1868-73. 6 vole. Monthly. 
 American Law Times. New Series. New Tork, 
 
 1874-77. 4 vols. Monthly. 
 American Law Times Reports, 1868-73. 6 vols. 
 
 Vol. 1 contains D. S. Ct. Reports, State Ct. 
 Reports, Bankruptcy Reports, and 
 Department Reports. 
 
 2, the same series. 
 
 3, XT. S. Ct. Reports and State Ct. 
 
 Reports (the Bankruptcy Cases 
 and the Departments Reports be- 
 ing Included, from hereon, in the 
 American Zaw Times). 
 
 4, U. S. Cte. Reports and State Ct. 
 
 Reports. 
 5, 6, Cases in U. S. and State Cts. 
 American Law Times Reports. New Series. New 
 
 Tork, 1874t-77. 4 vols. Containing leading 
 
 cases decided in the Cts. of the U. a. and the 
 
 Cts. of last resort of the several states. 
 American Leading Cases. See Hare (J. I. C.) & 
 
 Wallace (H. B.). 
 American Quarterly Register. Philadelphia, 
 
 1848-51. 6 vols. 
 American Railway Cases. See Smith & Bates. 
 American Railway Reports. A collection of all 
 
 reported decisions relating to Railways, 1871- 
 
 80. 31 vols. 
 Vol. 1. J. Henry Truman. 
 2-5. John A. Mallory. 
 6-9. Herbert A. Shipman. 
 10-19. W. W. Ladd, Jr. 
 30-21. G. C. Clemens. 
 American and English Railroad Cases, 1881-82. 
 
 5 vole. A continuation of American Railway 
 
 Reports. 
 American Reports, containing all the decisions of 
 
 general interest decided in the Courts of last 
 
 resort of the several states. 1868-82. 37 vols. 
 Vol. 1-27. Isaac G. Thompson. 
 27-37. Irving Browne. 
 American Themis. New Tork. January to 
 
 June, 1844. Six numbers published. 
 American Trade-Mark Cases. See Cox. 
 Ames ( Jamee Barr) . Leading Cases on Bills & 
 
 Notes, to 1881. 2 vols. 
 Ames (Samuel). See Rhode Island. 
 Ames, Knowlee & Bradley. See Rhode Island. 
 Anderson (Edw.). C. P. and Court of Wards, 
 
 1.5S4-1604. 2 vols, in 1. Among the best of 
 
 the old reporters. See Wallace, Report. 140. 
 Anderson (James). See Deas & Anderson. 
 Andrews (George). K. B., 1737-38. 1vol. 
 Angell & Durfee. See Rhode Island. 
 Anglo-Norman Cases. SeeBigelow (M. M.). 
 Annaly. See Ridgway. 
 Anstruther (Alex.). English Exch., 1792-97. 
 
 3 vols. 
 Anthon (John). Nisi Prius Cases in the Supr. 
 
 Ct. of New Tork, 1808-51. I vol. 2d ed. 1858. 
 Appleton (John). See Maine. 
 
 Arburthnot. Calcutta Foujdaree Udalet. 1826- 
 
 50. 1 vol. 
 Archer (Jas. T.). See Florida. 
 Arkansas Law Journal. Little Rock, Ark., 
 
 1877. Four numbers published. 
 Arkansas Supreme Court, 1837-82. 37 vols. 
 Vol. 1-5, 1837-44. Albert Pike. 
 6-13, 1845-53. E. H. English. 
 14-24, 1853-67. L. E. Barber. 
 
 1867-72. 
 
 1872-78. 
 1880-82. 
 
 Norval N. Cox. 
 John M. Moore. 
 D. B. Turner. 
 
 25-27, 
 28-34, 
 35-37, 
 
 Arkley (Patrick). Cases before the High Ct. 
 
 and Cir. Ct. of Justiciary in Scotland, 1846-48. 
 
 IvoL 
 Armstrong (C. W.). New Tork Contested Elec- 
 tion Cases, 1777-1871. 1 vol. 
 Armstrong (Richard), Macartney (John), & 
 
 Ogle (John C). Cases at Nisi Prius and the 
 
 Commission in Dublin, 1840-42. 1 vol. 
 Arnold (Thomas J.). C. P. and Exch. Chamb., 
 
 1838-39. 3 vols. Vol. 2 contains 120 pp. 
 Arnold (Thomas J.) & Hodges. Bail Ct. and 
 
 Practice Cases, 1840-41. 1 vol. of 320 pp. 
 Arnot (Hugo). Scotch Criminal Cases, 1536- 
 
 1784. 1 vol. 
 Ashmead (John W.). C. P., Qr. Sess., Oyer 
 
 and Terminer, and Orphans' Court, in the 
 
 First District of Pennsylvania, 1808-41. 2 vols. 
 Aspinall (J. C). Maritime Law Cases. New 
 
 Series. London, 1870-77. 4 vole. 
 Asseseed Taxes, Exch. Cases, 1824-48. 
 Atcheson- (Nathaniel). English Admiralty, 
 
 1800-03. 3 vols. , each vol. containing one case. 
 Atkyns (John T.). High Ct. Ch. temp. Hard- 
 
 wicke, 1736-54. 3 vols. 
 Austin (C). Eng. County Cts., 1867-69. 1vol. 
 
 Bagley (David T.). See California. 
 
 Bail Court Cases. See Lowndes & Maxwell. 
 
 Bail Court Reports. See Sanders & Cole; 
 
 Lowndes & Maxwell. 
 Bailey (Henry). Cases at Law in the Ct. o^ 
 
 App. of South Carolina, 1828-32. 2 vols. 
 Bailey (Henry). Cases in Eq. in the Ct. of 
 
 App. of South Carolina, 1830-31. 1 vol. 
 Baldwin (Henry). U. 8. Circ. Ct., Third Circ, 
 
 1829-33. 1 vol. 
 Ball (Thomas) & Beatty (Francis). Ch. in Ire- 
 land, 1807-14. 2 vols. 
 Baltimore Law Transcript, 1868-70. 3 vols. 
 Bankers' Magazine. New Tork, 1847-82. 37 
 
 vols, monthly. 
 Bankrupt Court Reporter. New Tork, 1867-68. 
 
 1vol. 
 Bankrupt Register. See National Bankruptcy 
 
 Register. 
 Bankruptcy and Insolvency Reports. English 
 
 Insolv. Cas., 1853-55. 2 vols. 
 Banks (Elliot V.). See Kansas. 
 Banning (H. A.) & Arden (Henry). Patent 
 
 Cases, U. S. Circ. Cts., 1874r-78. 3 vols. A 
 
 continuation of Fisher's Patent Cases. 
 Bar Reports. Containing all the cases in all the 
 
 English Cts. and a selection of cases decided 
 
 in the Sup. Cts. of Ireland and Scotland, 
 
 186.5-67. 4 vols. 
 Barber (L. E.). See Arkansas. 
 Barbour (Oliver L.). Ct. of Ch. in New York, 
 
 1845-48. 3 vols. 
 
REPORTS 
 
 544 
 
 REPORTS 
 
 Barbour (Oliver L.). Supr. Ct. of New Tork, 
 1847-77. 77 vols. 
 
 Barnardiston (Thomas). High Ct. of Ch., 
 1740-41. 1 vol. Lord Mansfield (2 Burr. 
 1142) forbade the citing of this book, as it would 
 be only misleading the students to put them 
 upon reading it. He said it was marvellous, 
 however, to those who knew the sergeant, and 
 his manner of taking notes, that he should so 
 often stumble upon what was right ; but that 
 there was not one case in his book which was 
 so throughout. Lord Eldon, however, in 1 
 Bligh, N. R. 538, says, " in that book there are 
 reports of very great authority." 
 
 Barnardiston (Thomas). K. B., 1726-34. 3 
 vols. A book which for many years was very 
 little esteemed, the author having been reputed 
 a careless fellow who let the wags scribble 
 what they liked in his note-book while he was 
 asleep. However, where his accuracy has 
 been tested, as it has been of later times, it 
 has come out pretty fairly ; and now both the 
 E. B. and Ch. reports of Barnardiston are 
 reasonably respected. See Wallace, Report. 
 423. 
 
 Barnes (Henry). Notes of Cases on Points of 
 Practice in the C. P. at Westminster, 1732- 
 60. 1 vol. 
 
 Bamet (James D.). See Central Criminal 
 Court. 
 
 Bamewall (Richard V.) & Adolphus (John L.). 
 K. B., 1830-34. 5 vols. 
 
 Bamewall (B. V.) &Alderson (Edw. H.). K. 
 B., 1817-22. 5 vols. 
 
 Bamewall (R. V.) &Creswell (Cresswell). K. 
 B., 1822-80. 10 vols. 
 
 Barr (Robert M.). See Pennsylvania State. 
 
 Barradall. ' MS. Reports of Cases in Virginia. 
 See advertisement to 2d ed. of Wythe's Va. 
 Rep. 
 
 Barron (Arthur) & Arnold (ThosJ.). Parlia- 
 mentary Election Cases, 1843-46. 1 vol. 
 
 Barron (Arthur) & Austin (Alfred). Parlia- 
 mentary Election Cases, 1842. 1 vol. 
 
 Barry (James). Case of Tenures, in Moly- 
 neaux's Cases, 13 Car. I. 
 
 Bartlett (D. W.). Congressional Election Cases, 
 which see. 
 
 Bates (Daniel M.). See Delaware Chancery. 
 
 Batty (Espine). K. B. in Ireland, 1835-26. 1 
 vol. 
 
 Baxter (Jere). Supr. Ct. of Tenn., 1873-76. 
 7 vols.' 
 
 Bay (Elihu Hall). Superior Cts. of Law in 
 South Carolina, 1783-1804. 3 vols. 
 
 Bay (S. M. ) . See Missouri. 
 
 Beasley (Mercer). Ch. and Ct. of Errors for 
 New Jersey. / 
 
 Beatty (Francis). Ch. in Ireland, 1814-30. 1 
 vol. 
 
 Beavan (Charles) . Cases in the Rolls Ct. and 
 the Chancellor's Cts., 1838-66. 36 vols. 
 
 Beavan (E.) <fc Walford (F.). Parliamentary 
 Cases relating to Railways, 1846. 3 parts. 
 
 Beavan (Edw.). See Railway and Canal Cases. 
 
 Bee (Thomas). Admiralty Cases in the U. S. 
 Diet. Ct. for South Carolina, and some cases 
 in other districts, including Hopkinson's deci- 
 sions in the Admiralty Ct. of Pennsylvania, 
 1779-1809. 1 vol. 
 
 Bell (Robert). Scotch Ct. of Sess. Cases, 1790- 
 93. 1vol. 
 
 Bell (Robert). Scotch Ct. of Sees. Cases 179i- 
 95. 1 vol. ' 
 
 Bell (Robert). Dictionary of Decisions, Scotch 
 
 Ct. of Sess. Cases, 1808-33. 3 vols. 
 Bell (Sydney S.). Cases in the House of Lords 
 
 on App. from Scotland, 1843-50. 7 vols. 
 Bell (Thomas). Crown Cases Reserved, with a 
 
 few in the Q. B. and Cts. of Error, 1858-61 
 
 1 vol. 
 
 Bellais. India, Criminal Cases, 1827-16. 1 vol, 
 
 Bellewe (Richard). K. B. and C. P., 1378. 
 1400. 1 vol. The book sometimes improperly 
 cited as Bellewe's Cases is Brooke's New 
 Cases, which see. 
 
 Bellinger (C. B.). See Oregon. 
 
 Belt (Robert). A supplement to Vesey Senior's 
 English Ch. Reports, 1746-1855. 1 vol. 
 
 Bench and Bar, Chicago, 1870-74. 5 vols, quar- 
 terly. 
 
 Bendloes (Gulielme). All the Courts, 1531- 
 1628. 1 vol. Properly cited as New Benloe, 
 but sometimes as Old Benloe. 
 
 Benedict (Robert D.). U. S. Dist. Cts., Second 
 Circ, 1865-83. 9 vols. 
 
 Bengal Law Reports, Calcutta High Ct., 
 original side, 1868-75. 15 vols. 
 
 Bengal Law Reports, supplement, 1863-68.- 1 
 vol. 
 
 Bengal Sudder Dewanny. Adawlut Eeports, 
 Calcutta Sudder Cts. , 1845-62. 18 vols. 
 
 Bengal Sudder Nizamut Adawlut Reports, Cal- 
 cutta Sudder Cts., 1805-50. 16 vols. 
 
 Bengal Sudder Nizamut Adawlut Reports, New 
 Series. Calcutta Sudder Cts., 1851-59. 9 
 vols. 
 
 Benloe (Gulielme) & Dalison (Gulielme). C. 
 P. Benloe contains cases from 1533 to 1579, 
 and Dalison from 1546 to 1574. 1 vol. of each, 
 bound together. There is very great confusion 
 in the citations of the reports of Benloe and 
 Dalison. Some cases of Benloe's are given at 
 the end of Keilway's Reports and of Ashe's 
 Tables. It is supposed that the title New 
 Benloe was given to the volume here given as 
 Bendloes to distinguish it from ' the cases in 
 Keilway and Ashe. The volume given as 
 Benloe & Dalison consists in reality of two 
 separate series of reports, paged independently, 
 although bound together, and the modes of 
 reference are very various, being sometimes to 
 Dalison when Benloe is intended, and ito 
 versa. A full account is given in Wallace's 
 Report. 80-85, 93, of these reports, and of the 
 various mistakes made in citation. 
 
 Bennett (Edmund H.). A collection of all the 
 
 Fire Insurance cases in the Cts. of England, 
 
 Ireland, Scotland, and America, 1729-1875. 5 
 
 vols. 
 Bennett (E. H.) & Heard (F. F.). Leading 
 
 Criminal Cases, with Notes, 1869. 2 vols. 
 Bennett (Granville G.). See Dakota. 
 Bennett (Nathaniel). See California. 
 Bennett (Samuel A.). See Missouri. 
 Bentley. Irish Ch. 1830. 
 Bernard (Wm. L.). Leading cases decided 
 
 under the Irish Church Acts, 1876. 1 vol. 
 Berton (George F. S.). Supr. Ct. of New 
 
 Brunswick, 1835-39. 1 vol. 
 Berry (A. M.). See Missouri. 
 Best (William M.) & Smith (George J. P.^. 
 
 Q. B. and Exoh. Chamb., 1861-70. 10 vols. 
 
REPORTS 
 
 S45 
 
 REPORTS 
 
 Betts' Admiralty Decisions. See Blatchford & 
 Howland. 
 
 Bibb (George M.)- Ct. of App. in Kentucky, 
 1808-17. i vols. 
 
 Bicknell & Hawley. See Nevada. 
 
 Bigelow (Melville M.). Life and Accident In- 
 surance Cases, 1846-76. 5 vols. 
 
 Bigelow (Melville M.). Leading Cases on the 
 Law of Torts, in the Cts. of America and 
 England, to 1875. 1 vol. 
 
 Bigelow (Melville M.). LawCases, K. B., 1066- 
 1195. 1vol. 
 
 Bignell. Calcutta Supreme Court, 1830-1. 1vol. 
 
 Bingham (P.). C. P. and other Cts., 1823-34. 
 10 vols. 
 
 Bingham (P.). New Cases, C. P. and other 
 Cts., 1834^0. 6 vols. 
 
 Binney (Horace). Sup. Ct. of Penna., 1799- 
 1814. 6 vols. Sd ed. 1878. 
 
 Biseell (Josiah H.). U. S. Cir. and Dist. Cts., 
 Seventh Cir., 1851-79. 8 vols. 
 
 Bittleston (A. H.). Practice Cases under Judi- 
 cature Acts, 1875-76. 1 vol. 
 
 Black (James B.). See Indiana. 
 
 Black (J. S.). U. S. Sup. Ct, 1861-63. 3 vols. 
 
 Blackford (Isaac). Sup. Ct. of Indiana, 1817- 
 47. 8 vols. 
 
 Blackham (John), Dundas (William J.), & Os- 
 borne (Robert W.). Practice and N. P. Cases 
 in the Superior Cts. in Ireland, 1846-48. 1 vol. 
 
 Blackstone (Henry). C. P. and Exch. Cham- 
 ber, 1788-96. 3 vols. 
 
 Blackstone (William). K. B., C. P., and 
 Exch. Chamber, 1746-79. 3 vols. Lord Mans- 
 field said (Dougl. 93, n.) : "We must not 
 always rely on the words of reports, though 
 under great names. Mr. Justice Blackstone's 
 reports are not very accurate," but of late 
 they have been well edited, and are more es- 
 teemed. 
 
 Blake (Henry M.) . See Montana. 
 
 Blake & Hedges. See Montana. 
 
 Blanchard (George A.) & Weeks (Edward P.). 
 Select and- Leading Cases on Mines, Minerals, 
 and Mining Water Eights, 1877. 1 vol. 
 
 Bland (Theodoric). High Court of Ch., Mary- 
 land, 1811-33. 3 vols. 
 
 Blatchford (Samuel). U. S. Cir. Ct., Second 
 Cir., 1845-83. 18 vols. 
 
 Blatchford (Samuel) . Cases in Prize in the IT. 
 S. Cir. and Dis. Cts., Southern Dis. of New 
 York, 1861-65. 1vol. 
 
 Blatchford (Samuel) & Howland (Francis). U. 
 S. Dis. Ct., Southern Dis. of New York (Betts' 
 Admiralty Decisions) , 1837-37. 1 vol. 
 
 Bleckley (L. E.). See Georgia. 
 
 Bligh (Richard) . Cases in Parliament, 1819-31. 
 4 vols.; vol. 4 contains 141 pp. 
 
 Bligh (Richard). New Series, Cases in Parlia- 
 ment, 1827-37. 11 vols.; vol. 11 contains only 
 526 pp. 
 
 Bloomfield (Joseph). Cases in the Sup. Ct. of 
 New Jersey relative to the Manumission of 
 Negroes, 1773-93. 1 vol. 
 
 Bluett. Notes of Cases, Isle of Man, 1730-1847. 
 1 vol. 
 
 Bombay High Court Reports, 1863-76. 13 vols. 
 Bond (Lewis H.). U. S, Cir. and Dis. Cts., 
 
 Southern Dis. of Ohio, 1856-71.- 3 vols. 
 Booraem (H. Toler). See California. 
 Vol. II.— 35 
 
 Borradaile. Bombay Sudder Court, 1800-24. 2 
 vols. 
 
 Bosanquet (J. B.) & Puller (C). C. P., 
 Exch. Chamb., and H. of L., 1796-1804. 8 
 vols. 
 
 Bosanquet (J. B.) & Puller (C.) New Reports, 
 C. P., Exch. Chamb., and House of Lords, 
 1804-07. 2 vols. The volumes of Bosanquet 
 & Puller are generally cited from 1 to 5 in 
 American books. In English books the latter 
 series is frequently cited as New Reports. 
 
 Boston Law Reporter, 1838-64. 27 vols. Monthly. 
 
 Boston Police Reports. Selections from the Court 
 Reports, originally published in the Boston 
 Morning Post, 1834-37. 1 vol. ; sometimes 
 cited as Gill's Reports. 
 
 Bosworth (Joseph S.). See New York Superior 
 Court. 
 
 Bott (E.). English Poor Law Cases, 1761-1827. 
 2 vols. 
 
 Boulnoe. Calcutta Supr. Ct., 18.56-59. 2 vols. 
 
 Bourke. Calcutta High Ct. , Original Side, 1861- 
 65. 1 vol. 
 
 Bovill. See Wynne. 
 
 Bradford (Alexander W.). Surrogate Reports 
 in New York, 1849-57. 4 vols. 
 
 Bradford. Iowa Sup. Ct., 1839^1. 1 vol. Re- 
 printed in Morris's Report. 
 
 Bradwell (James B.). Decisions of the Ap- 
 pellate Ct. of Illinois, 1877-82. 10 vols. 
 
 Branch (Joseph). See Florida. 
 
 Brayton (William). Supr. Ct. of Vermont, 
 1815-19. 1 vol. 
 
 Breese (Sydney). See Illinois. 
 
 Brevard (Joseph). Superior Cts. of Law in 
 South Carolina, 1793-1816. 3 vols. 
 
 Brewer (Nicholas, Jr. ) . See Maryland. 
 
 Brewster (F. Carroll). Cases in the County Cts. 
 of Philadelphia, the Supr. Ct. of Pennsylvania, 
 and other Courts, 1856-73. 4 vols. 
 
 Bridgman (John). Cases decided by Sir John 
 Bridgman, Chief Justice of Chester, 1613-21. 
 Not often referred to nor particularly esteemed . 
 
 Bridgman (Oriando). C. P., 1660-67. 1 vol. 
 Published first of late years, and therefore not 
 coming down to us with the fame which, had 
 it appeared at all contemporaneously with the 
 decisions, the book would certainly have pos- 
 sessed. The decisions are by a great judge, 
 and are well reported by himself. Wallace, 
 Report. 248. 
 
 Brightly (Frederick C.) . N. P. Decisions in C. P. 
 and Supr. Ct. of Penna., 1809-51. 1 vol. 
 
 Brightly (Frederick C). Leading Election Cases, 
 1871. 1vol. 
 
 British Crown Cases Reserved. See English 
 Crown Cases Reserved. 
 
 Brockenbrough (John W.). U. S. Cir. Ct., 
 Fourth Cir. , 1803-32. 2 vols. 
 
 Brockenbrough (William). See Virginia Cases. 
 
 Brockenbrough (William) & Holmes (Hugh). 
 See Virginia Cases. 
 
 Broderick (G. C.) &Freemantle (W.H.). Eng- 
 lish Ecclesiastical Cases, 1840-65. 1 vol. 
 
 Broderip (William J.) & Bingham (Peregrine), 
 C. P. and other Courts, 1819-23. 3 vols. 
 
 Brooke (Robert). New Cases. Called also 
 Petit Brooke, Little Brooke, and Bellewe's 
 Cases, temp. Henry VIII. A selection of 
 cases in the K. B., C. P., and Exch., 151.5- 
 58. These cases were selected out of Brooke's 
 Abridgment by Richard Bellewe. 
 
REPORTS 
 
 546- 
 
 REPORTS 
 
 Brooke (William G.). Six Judgments of the 
 
 Judicial Committee of the Privy Council in 
 
 Eccl. Caeee, 1850-73. 1 vol. 
 Broun (Archibald). High Ct. and Cir. Ct. of 
 
 Justiciary in Scotland, 1842-45. 3 vols. 
 Brown (Archibald). See Broun. 
 Brown (Charles K.). Nisi Prius Cases in the 
 
 Cir. Cts. of Michigan, and Abstracts of Deci- 
 sions of the Supr. Ct., 1870-71. 3-vol8. 
 Brown (Guy A.). See Nebraska. 
 Brown (Henry F.). Admiralty and Kevenue 
 
 Cases in the U. S. Cts., Western Lake and 
 
 River Districts, 18.57-75. 1 vol. 
 Brown (Josiah). Cases in Parliament, 1702- 
 
 1800. 8 vols. 
 Brown (M. P.). Supplement to Morrison's 
 
 Dictionary, Scotch Court of Sessions, 1630- 
 
 1768. 5 vols. 
 Brown (M. P. ) . Synopsis of Decisions, Scotch 
 
 Court of Sessions, 1,540-1837. 4 vols. 
 Brown (William). High Court of Ch. temp. 
 
 Thurlow and Loughborough, 1778-94. 4 vols. 
 Browne (Albert G. ) See Massachusetts. 
 Browne (Albert G.) & Gray (John C). See 
 
 Massachusetts. 
 Browne (Peter A.). C. P., Oyer and Term., Q. 
 
 Sees., and Orphans' Court, First Dist. of Penn., 
 
 1806-14. 2 vols. 
 Browning (Ernst) & Lushington (Vernon). 
 
 English Admiralty, 1863-66. 1 vol. 
 Brownlow (Richard) & Goldesborough (John). 
 
 C. P., 1569-1634. 3 parts; the first by both, 
 
 and the second by Brownlow alone. 
 Bruce (Alex.). Sc. Ct. of Sess., 1714^-17. 1 vol. 
 Buchanan (E. J. & J.). Cases in the Supr. Ct, 
 
 of the Cape of Good Hope, 1868-79. 13 vols. 
 Buchanan (E. J.). Cases in East. Dist. Cts., 
 
 Cape of Good Hope, 1880-81. 1 vol. 
 Buchanan (E. J.). Cases in Ct. of App., Cape 
 
 of Good Hope, 1880-81, 1 vol. 
 Buchanan (W.). Scotch Criminal Cases, 1810- 
 
 13. 1vol. 
 Buck (J. W.). Cases in Bankruptcy (English), 
 
 1816-30. 1 vol. i- J-V g ,-, 
 
 Buckler (Henry). See Central Criminal Court. 
 
 Buffalo City, N. T., Superior Court Reports, 
 1854-74. 1 vol. by Sheldon. 
 
 Bulstrode (Edward). K. B., 1609-39. 3 parts. 
 
 Bunbury (William). Exch., 1713-43. 1 vol. 
 A posthumous work, not of the highest repu- 
 tation, though edited by a good editor. 
 
 Burke (P.). A collection of Celebrated Trials, 
 1848-51. 3 vols. 
 
 Burke (P.). A Collection of Naval & Military 
 Trials, 1865. 1 vol. 
 
 Burnett (T. P.) . Supr. Ct. of the Territory of 
 Wisconsin, 1843-43. 1 vol. 
 
 Burrow (James). K. B., 1756-71. 5 vols. A 
 full, excellent, and accurate reporter, who 
 holds in a legal point of view the same relation 
 to Lord Mansfield that in a literary and histori- 
 cal one Boswell does to Dr. Johnson. 
 
 Burrow (James). K. B. Settlement Cases, 
 1733-76. 1 vol. 
 
 Buebee (Perrin). Eq. Cas. in the Supr. Ct. of 
 North Carolina, 1853-53. 1 vol . 
 
 Busbee (Perrin). Supr. Ct. of North Carolina, 
 Law, 1853-53. 1vol. 
 
 Bush (W. P. D.). KentuckyCt. of Apps., 1866- 
 79. 14 vols. 
 
 Caiues (George). Cases in the New Tork Gt nf 
 Errors, 1801-05. 3 vols. 
 
 Caines (George). Supr. Ct. of New Tork 
 1803-05. 3 vols. "' 
 
 Calcutta Legal Observer, 1840. 1 vol. 
 Caldecott (Thomas). Cases in the K. B re- 
 lative to the Duty and Office of a Justice nf 
 the Peace, 1776-85. 1 vol. 
 Calcutta Supreme Court. See Hyde, Morton 
 Montriou, Bignell, Fulton, Taylor, Taylor i 
 Bell, Boulnoe, Commercial Cases, etc., Gas- 
 per. 
 California. Supreme Court, 1850-81. 57 vols 
 Vol. 1, 1850-51. Nath. Bennett. 
 
 3-4, 18.53-54. H.P.Hepburn. 
 6, 18.55. W. G. Morris. 
 
 6-8, 18.56-57. H. T. Booraem. 
 9-13, 1858-59. H. Lee. 
 13-15, 18.59-60. J. B. Harmon. 
 16-19, 1860-63. D. T. Bagley. 
 20-33, 1862-63. Curtis J. Hillyer.: 
 33-33, 1863-67. C. A. Tuttle. - A 
 33-37, 1867-69. J. E.Hale. 
 38, 1869. Tod Robinson. 
 
 39-40, 1870-71. R. Aug. Thompson. 
 41-51, 1871-77. C. A. Tuttle. 
 53, 1877-78. C. A. Tuttle & Q. J, 
 
 Carpenter. 
 53, 1878-79. 6. J. Carpenter. 
 
 54-57, 1880-81. G. H. Smith. 
 See Myrick (M. H.), Probate Court. 
 California Law Journal, San Francisco, 1862-63. 
 
 3 vols. 
 California Legal Record, San Francisco, 1878-79. 
 
 3 vols. Weekly. 
 Call (Daniel). Virginia Ct. of Apps., 1779- 
 
 1818. 6 vols. 
 Callthrop (H.). Cases touching Several Cus- 
 toms and Liberties of the City of London, 
 1609-18. 1vol. 
 Cameron (Duncan) & Norwood (Wm.). Nortli 
 
 Carolina Ct. of Conference, 1800-04. 1 vol. 
 Cameron (JohnH.). See Upper Canada, Queen's 
 
 Bench. 
 Campbell (James M.). See Taney. 
 Campbell (John). Nisi Prius in K. B. andC. 
 
 P., 1807-16. 4 vols. 
 Campbell (J. H.). See Legal Gazette Re- 
 ports. 
 Canada Law Journal. See Upper Canada Law 
 
 Journal. 
 Canada Supreme Court Reports, 1877-83. 5 
 
 vols, by George Duval. 
 Canadian Law Times, Toronto, 1881-82. 2 vols. 
 
 Monthly. 
 Carolina Law Journal, Charleston, S. C, 
 
 1830. S Nos. 
 Carolina Law Journal, Columbus, 8. C, 1831. 
 
 1 vol. 
 Carolina Law Repository. A periodical contain- 
 ing reports and legal intelligence, 1813-16. i 
 vols. 
 Carpenter (G. J.). See California. 
 Carpmael (William). English Patent Cases, 
 
 1603-1843. 3 vols. 
 Carrington (P. A.) & Kirwan (A. V.). Nisi 
 Prius Cas. in Q. B., C. P., and Exch., and m 
 the Circuits and in Central Criminal Court, 
 1843-53. 3 vols.; vol. 8 contains only 378 pp. 
 Carrington (F. A.) & Marshman (J- ".)■ 
 Nisi Prius Cas. in Q. B., C. P., and Exch., sua 
 on Circuit, 1841-42. 1 vol. 
 
REPORTS 
 
 647 
 
 REPORTS 
 
 Carrington (F. A.) & Payne (J.). Nisi Prius 
 Cas. in K. B., C. P., and Ezcli., and on Cir- 
 cuit, 1823-41. 9 vols. 
 
 Carrow (Jolin M.). See Railway & Canal 
 Cases. 
 
 Carrow, Hamerton, & Allen. See New Sessions 
 Cases. 
 
 Carrow, Oliver, & Beaven. See Railway & Canal 
 Cases. 
 
 Carrow & Oliver. See Railway & Canal Cases. 
 
 Carter (Horace E.). See Indiana. 
 
 Carter (S.). Common Pleas, 166i-76. 1 vol. 
 
 Carthew (Thomas). King's Bench, 3 Jae. II.- 
 12 Will. III. 1 vol. Lord Thurlow said, 
 " Carthew and his book were equally bad 
 authority;" but Lord Kenyon, in 3 Term, 
 776, says that Carthew is in general a good re- 
 porter. See also Willes, 183. 
 
 Gary (George). Ch., 1557-160i. 1 vol. Fre- 
 quently mere transcripts from the Registrar's 
 books. 
 
 Cases Argued and Decreed in the High Court of 
 Chancery. See Cases in Chancery. 
 
 Cases in B. R. temp. Holt. Cases and Resolu- 
 tions in the Court of K. B., 1714-29. 1 vol. 
 This must not be mistaken for " Reports temp. 
 Holt," for which see " Holt." 
 
 Cases in Chancery. Two parts in 1 vol.; with 
 this is usually bound " Select Cases in the 
 High Ct. of Ch.," which contains the cases of 
 the Duke of Norfolk and of the Earls of Bath 
 & Montagu : it is cited as 1st, 2d, & 3d 
 " Chancery Cases." 
 
 Cases in Chancery, Select. See " Select Cases 
 in Chancery ;" see also Mosely. 
 
 Cases in Equity. See Gilbert. 
 
 Cases in Equity Abridged. See Equity Cases 
 Abridged. 
 
 Cases in House of Lords. See House of Lords 
 
 Cases in King's Bench. See Ridgway. 
 
 Cases in Law & Equity. See Gilbert. 
 
 Cases in Parliament. See Showers. 
 
 Cases of Practice in the C. P. during the Reigns 
 
 of Queen Anne, George I., and George 11. 1 
 
 vol. 
 
 Cases of Practice in the K. B. from Ellz. to 14th 
 George III. 1 vol. 
 
 Cases of Self Defence. See Horrigan & Thomp- 
 son, 
 
 Cases of Settlement, 1685-1733. 1 vol. 
 
 Cases of Settlement, English Courts, 1710-20. 1 
 vol. 
 
 Cases on the Six Circuits Ireland, 1841-43. 1 
 vol. Sometimes cited " Irish Circuit Repor- 
 ters." 
 
 Cases tempore Finch. High Court of Ch. 
 
 1673-80. 1 vol. by Nelson. 
 Cases tempore George I. Sometimes called 
 
 Modem Cases at Law and Equity. See 8 & 9 
 
 Modem. 
 
 Cases tempore Hardwicke. K. B. at Westmln- 
 eter during the time of Hardwicke, usually 
 cited as Hardwicke's Cases, which see; see 
 also Ridgway. 
 
 Cases tempore Holt. See Holt. 
 
 Cases tempore King. Select Cases in Ch. temp. 
 King, 1724-33. 1 vol. Sometimes cited as 
 Macnaghten's Select Cases." See also 
 Mosely. 
 
 Cases tempore Macclesfield. See Lucas. 
 
 Cases tempore Napier. See Drury (William B.). 
 
 Cases tempore Plunket. See Lloyd & Gould ; 
 Drury & Walsh. 
 
 Cases tempore Queen Anne. Reports of Cases in 
 Banco Regis in the Reign of Queen Anne, es- 
 pecially from the IV. to the VIII. year of her 
 reign. See Modern Reports, Vol. 11. 
 
 Cases tempore Sugden. See Lloyd & Gould; 
 Connor & Lawson ; Drury & Warren ; Drury. 
 
 Cases tempore Talbot. K. B., C. P., and Ch., 
 1734^38. 1vol. By Alex. Forrester to page 317, 
 and from there to the end, by Hawkins. A book 
 of highly respectable authority, though not a 
 monument worthy of Lord Talbot's trans- 
 cendent virtue. Wallace, Report. 506. 
 
 Cases tempore William III. King's Bench, 1690- 
 1702. 1 vol. See Modern, vol. 13. Buller 
 said in Dougl. 83, " 13th Modern is not a book 
 of any authority.*' 
 
 Cases with Opinions. A collection of cases, with 
 opinions of eminent counsel, alphabetically 
 arranged and digested under distinct heads, 
 1791. 3 vols. 
 
 Casey (Joseph). See Pennsylvania State. 
 
 Central Criminal Court. The whole proceed- 
 ings in Oyer and Terminer and Gaol Delivery, 
 1834-82. 95 vols. 
 
 Vol. 1-26. Henry Buckler. 
 
 27-95. James D. Barnet & Alexander 
 Buckler. 
 
 Central Law Journal. St. Louis, Mo., 1874-83. 
 15 vols. Weekly. 
 
 Chambers Reports. Cases of Practice decided 
 in Chambers by the judges of the Q. B. & C. 
 P. of Upper Canada, 1848-53. 2 vols. 
 Chancery Cases. See Cases in Chancery. 
 Chancery Chambers Reports. Cases decided 
 in the Chancery Chambers and Master's Office, 
 Upper Canada, 1857-72. 4 vols. 
 Vol. 1, 18.57-65. Alexander Grant. 
 2-4, 1866-73. C. W. Cooper. 
 (Vol. 4 contains only 96 pp.) 
 Chancery Precedents. See Precedents in Chan- 
 cery. 
 
 Chancery Sentinel. Saratoga, N. T., 1841-47. 
 
 6 vols. 
 Chandler (D. H.). Sup. Ct. of Wisconsin, 
 
 1849-53. 4 vols, in two. 
 
 Chandler (P. W.). American Criminal Trials. 
 2 vols. 
 
 Chandler (W. E.). See New Hampshire. 
 
 Chaney (Henry A.). See Michigan. 
 
 Chanley (Wm. T.). Practice Cases under the 
 
 Judicature Acts of England, 1875-80. 3 vols.; 
 
 vol. 3 contains only 384 pp. 
 Charlton (Robert M.). Superior Cts. of tie 
 
 Eastern Dist. of Georgia, 1811-37. 1 vol. 
 Charlton (Thomas U. P.). Superior Cts. of the 
 
 Eastern Dist. of Georgia, 1805-10. 1 vol. 
 Chase's Decisions. See Johnson (Bradley T.). 
 Cheves (Langdon). Eq. Reports in the Ct. of 
 
 App. in South Carolina, 1839-40. r 1 vol. 
 Cheves (Langdon). Law Reports in the Ct. of 
 
 App. in South Carolina, 1839-40. 1 vol. 
 Chicago Law Bulletin, Chicago, 111., 1854r-78. 
 
 24 vols. 
 Chicago Law Journal. Chicago, 111., 1877-78. 
 
 2 vols. Only 192 pp. of vol. 2 were published. 
 Chicago Weekly Law Record. Chicago, HI., 
 
 1855-81. 28 vols. 
 Chicago Legal News. Chicago, Dl., 1868-83. 15 
 
 vols. Weekly. 
 
REPORTS 
 
 648 
 
 REPORTS 
 
 Chipman's MS. Supreme Court of New Bruns- 
 wick, 1825-27. 1 vol. 
 
 Chipman (Daniel). Vermont Sup. Ct., 1789- 
 1824. 2 vols. This work contains selected 
 cases from N. Chipman's reports, infra. 
 
 Chipman (Nathaniel). Vermont Sup. Ct., 
 1789-91. 1 vol. Principally cases relating to 
 ■practice, pleading, and magistrates. 
 
 Chitty (Joseph). Bail Court Practice Cases, 
 1770-1820. 2 vols. 
 
 Choyce Chancery Cases, 1557-1606. 1 vol. A 
 very good little book, so far as it goes. See 
 Wallace, Report. 470, where curious extracts 
 are given from the volume. Beprinted, 1S70. 
 
 Cincinnati Law Bulletin. Cincinnati, Ohio, 
 1875-82. 7 vols. Weekly. 
 
 Cincinnati Superior Court Reports, 1870-73. 2 
 vols. 
 Vol. 1. C. P. Taft & B. Storer, Jr. 
 2. C. P. & P. B. Taft. See Handy. 
 
 City Courts Reports. See Robertson (Daniel T. ) . 
 
 City Hall Recorder. See Rogers. 
 
 City Hall Reporter. See Lomas. 
 
 City Record. The official journal of the city of 
 New York, 187.3-81. 9 vols. 
 
 Clark (C). See House of Lords Cases. 
 
 Clark (C.) & Finelly (W.). Cases in the House 
 of Lords, 1831-46. 12 vols. 
 
 Clark (C.) & Finelly (W.). New Series. See 
 House of Lords Cases. 
 
 Clark (Francis B.). See Alabama. 
 
 Clark (John A.). Pennsylvania Law Journal 
 Reports, containing cases decided in the Fede- 
 ral and State Cts. of Penna., 1842-52. 5 vols. 
 
 Clarke (Chas, L.). Ch. Reports In New York 
 in time of Vioe-Chancellor Whittlesey, 1839- 
 41. 1vol. 
 
 Clarke (H. K.). See Michigan. 
 
 Clarke (M. St. Clair). See Congressional Elec- 
 tion Cases. 
 
 Clarke (W. Fenn). See Iowa. 
 
 Clayton (John). Pleas of Assize held at York, 
 1632-49. 1vol. 
 
 Cleveland Law Record. Cleveland, Ohio, 1856. 
 Only 96 pp. published. 
 
 Cleveland Law Reporter. Cleveland, Ohio, 1878- 
 
 79. 2 vols. Weekly. 
 
 Clifford (Wm. H.). V. S. Cir. Ct., First Cir., 
 1858-81. 4 vols. 
 
 Clifford (Henry). Southwark Election Cases 
 relating to the Treating Act of 37 Geo. III., 
 1797-1802. 1vol. 
 
 Clifford (Fredk.) & Richards (A. G.). Parlia- 
 mentary Locus Standi Cases, 1870-76. 2 vols. 
 
 Clifford (Fredk.) & Stephens (P. S.) Parlia- 
 mentaiy Locus Standi Cases, 1867-69 and 1877- 
 
 80. 2 vols. 
 
 Cobb (T. B. R.). See Georgia. 
 
 Cochran (F.). Supreme Court of Nova Scotia, 
 1859. Only 93 pp. published. 
 
 Cockbum (W.) & Rowe (R. R.). Parliamen- 
 tary Election Cases, 1833. 1 vol. 
 
 Cocke (N. W.). See Alabama, New Series. 
 
 Cocke (Wm. B.). See Florida. 
 
 Code Reporter, containing Decisions on the Code 
 of New York, 1848-51. 3 vols. 
 
 Code Reports, New Series. Reports of Decisions 
 on the Code of Procedure of New York, 1851- 
 52. Ivol. 
 
 Coke (Edward). King's Bench, Commoa 
 Pleas, Exchequer, and Chancery, 1572-1618 
 13 parts or volumes. Lord Coke's report^ 
 are very voluminous. They have been e^ 
 verely criticized by Sir Edward Sugden 
 Lord Redesdale, and others, and Coke charted 
 with " telling untruths " in them ; but all the 
 charges made against him have been examined 
 by Mr. Wallace (Reporters, p. 165), and Lord 
 Coke's integrity vindicated from the imputa- 
 tions of his countrymen. 
 
 Coldwell (Thomas H.). Sup. Ct. of TennesBee, 
 
 Cole (C. C). See Iowa. 
 Coleman (William). Decisions in the Mayor's 
 Court of the City of New York, 1794-1800 
 
 1 vol. 
 
 Coleman (William) & Caines (George). New 
 York Supreme Court, 1794-1805. 1 vol. 
 
 CoUes (Richard). Cases in Parliament on Am 
 
 and Writs of Error, 1697-1714. 1 vol. 
 CoUyer (John). Cases in the High Court of 
 
 Ch. of England, 1844-46. 2 vols. 
 Colorado. Sup. Court, 1864-81. 5 vols. 
 Vol. 1-2, 1864-75. Moses Hallett. 
 2-6, 1876-81. L. B. France. 
 Colorado Law Reporter. Denver, Col., 1830-82. 
 
 2 vols. Monthly. 
 
 Colqult (Anthony). See Modem, 1st. 
 
 Coltman (F. J.). Registration Cases, 1878-82. 
 Vol. 1 in course of publication in parts. 
 
 Comberbach (Roger). K. B., 1685-99. It ij 
 said ,by Lord Thurlow (1 Bro. 0. 0. 97) to lie 
 bad authority, though a few cases are better 
 reported than in any other place. Its clief 
 use is for comparison with other reports of the 
 same cases. Wallace, Report. 396. 
 
 Commercial Cases and Small Causes Court. 
 
 Calcutta, Supr. Ct., 1851-60. 1 vol. 
 Commissioner's Decisions. See Patent Office 
 
 Decisions. 
 Common Bench. Cases in the Ct. of C. P., 
 1845-56. 18 vols. 
 Vol. 1-8. Manning (Jas.), Granger (T. 
 C.),& Scott (John). 
 9. Manning ( Jas. ) & Scott (John) . 
 10-18. Scott (John). 
 Common Bench. New Series. C. P. and Exch. 
 
 Chamb., 1856-65. 19 vols., by John Scott. 
 Common Law. See English Common Law. 
 Common Law Reports. See Spottiswoode. 
 Common Pleas Reporter, Scranton, Penna., 1879. 
 Only 156 pages published. (Superseded the 
 Lackawanna Legal Record.) 
 Comstock (George F.). See New York Court 
 
 of Appeals. 
 Comyns (Sir John). K. B., Ch., and Exch., 
 
 1695-1741. 2 vols. 
 Conference. See Cameron & Norwood. 
 Congressional Election Cases, 1789-1876. 4to1!. 
 Vol.1, 1789-1834. M. St. C. Clarke &D. 
 A. Hall. 
 3, 1834-1865. D. W. Bartlett. 
 
 3, 1865-1871. " 
 
 4, 1871-1876. J.M.Smith. 
 Connecticut. Supr. Ct. and other highest Cts. 
 
 of Judicature, 1814-83. 48 vols. 
 
 Vol. 1-21, 1814-52. Thomas Day. 
 33-34, 1852-56. Wm. N. Matson. 
 25^8, 18.56-79. John Hooker. 
 See Day ; Kirby ; Boot. 
 Connor (Henry) & Lawson (James A.). Ch.in 
 Ireland, time of Sugden, 1841-43. 2 vols. 
 
EEPOETS 
 
 549 
 
 REPORTS 
 
 Conover (0. M.). See Wisoonsln. 
 
 Gonroy (J.)- Custodiam Reports, Ireland, 1795. 
 1 vol. 
 
 Consistory Court Keports. See Haggard (John) . 
 
 Constitutional. Reports of the Constitutional 
 Ct. of South Carolina. Published by Tread- 
 way, and sometimes cited as Treadway's Re- 
 ports. 1812-16,1833. 2 vols. 
 
 Constitutional. New Series. Constitutional 
 Court of South Carolina, 1817-18. 2 vols. 
 Published by Mills, and often cited as Mills's 
 Reports. 
 
 Contested Elections in Congress. See Congres- 
 sional Election Cases. 
 
 Coolte (Sir George) . Cases of Practice in the 
 C. P., 1706-47. 1vol. 
 
 Cooke (James R.) & Alcock (John C). K. 
 B. in Ireland, 1833-34. 1 vol. of 199 pp. 
 
 Cooke (William W.). U. S. Dist. Ct. for East 
 Tennessee, and Sup. Ct. of Errors and Apps. 
 of Tennessee, 1810-14. 1 vol. 
 
 Cooley (Thomas M.). See Michigan. 
 
 Cooper (Charles P.). Cases in Ch. decided by 
 lord Brougham, 1833-34. 1 vol. of 531 pp. 
 without Index. 
 
 Cooper (Charles P.). Casesin Chancery decided 
 by Lord Cottenham, 1846-48. 2 vols. 2d vol. 
 contains only 560 pp. 
 
 Cooper (Charles P.). Oases in Lord Chancel- 
 lor's, Rolls, and Vice-Ch. Cts., 1837-9. 1 vol. 
 
 Cooper (George). High Court of Ch., time of 
 Lord Eldon, 1815. 1 vol. 
 
 Cooper (W. E.). See Tennessee. 
 
 Copp (Henry N.). Decisions of the Commis- 
 sioner of the Land Office and the Secretary of 
 the Interior of the U. S., under the Mining 
 Statutes, 1866-73. 1 vol. 
 
 Corbett (Uvedale) & Daniell (Edmund R.). 
 Election Cases in Parliament, 1819. 1 vol. 
 
 Coryton. Calcutta, High Ct., Original Side, 
 1864^66. 2 vols. 
 
 County Courts Cases. English County Courts, 
 1849-58. 3 vols. Vol. 3 has only 236 pp. 
 Vol. 1. Roberts, Leaming, & Wallace. 
 2-3. Sanders & McCrea. 
 County Courts Chronicle. London, 1847-81. 27 
 vols. Contains Cases in the English County 
 Courts and, to 1860, in the Superior Cts. on 
 App. therefrom ; in 1860 there was started a 
 series in connection with this, called County 
 Courts Reports, new series. These (14 vols, to 
 1881) contain cases in the Superior Courts on 
 App. from the County Cts. Vol. 1 of the Chron- 
 , Icle is 4to. ; vols. 7-13 and 21-24 are small folio ; 
 all the others and the County Courts Reports, 
 new series, are 8vo. 
 Couper (Charles T.). Scotch Justiciary Cases, 
 
 1868-77. 3 vols. Vol. 4 in preparation. 
 Court of Claims of the U. S., 1865-80. 16 vols. 
 These reports contain, in vols. 7-16, all the de- 
 cisions of the U. S. Supr. Ct. in cases appealed 
 from the Court of Claims from 1865-78. 
 Vol. 1-7, 1865-71. Charles C.Nott& Sam- 
 uel H. Huntington. 
 8-16, 1872-80. Charles C. Nott & 
 Archibald Hopkins. 
 See Devereux (John C). 
 
 Court of Sessions. See Session Cases. 
 Cowen (Esek). New York Sup. Ct., Ct. of Er- 
 rors and of Impeachment, 1823-28. 9 vols. 
 Cowper (Henry). K. B., 1774^-75. 2 vols. 
 
 Cox (Edward W.). Cases relating to Magis-' 
 trates. Municipal and Parochial Law, 1859-83. 
 13 vols. Reprinted from ' Law Times.' 
 
 Cox (Edward W. ) . Criminal Cas. in all the Cts. 
 in England and Ireland, 1843-81. 14 vols. 
 These reports, which are edited by Mr. Cox, , 
 are prepared by a large number of reporters. 
 
 Cox (N. W.). See Arkansas. 
 
 Cox (Rowland). American Trade-Mark Cases, 
 to 1871. 1 vol. 
 
 Cox (Samuel C). Cases determined in Cts. of 
 
 Ch., 1783-96. 2 vols. 
 Cox (Edw.), McCrea (D. C), &Hertslet (C. J. 
 
 B.) . English County Cts., 1847-53. 1 vol. 
 Cox (Edw.) & Atkinson. Registration App. 
 
 Cas. in the C. P. on App. from the Revising 
 
 Barristers, 1843-46. 1 vol. of 170 pp. 
 
 Coxe (Richard S.). See New Jersey, 1790-95. 
 1 vol. 
 
 Crabbe (William H.). U. S. Dist. Ct., Eastern 
 Dist. of Penna., 1836-46. 1 vol. 
 
 Craig (R. D.) & Phillips (T. J.). High Court 
 of Ch., time of Cottenham, 1840-41. 1 vol. 
 
 Graigie (John), Stewart (John S.), & Paton 
 (Thomas S.) . Cases in the House of Lords on 
 App. from Scotland, 1736-1821. 6 vols. This 
 series is cited as Craigie & Stewart, and some- 
 times as Stewart. 
 
 Cranch (William). TJ. S. Supr. Ct. 1800-15. 9 
 vols. 
 
 Cranch (William). U. S. Cir. Ct. of the Dist. 
 of Columbia, 1801-41. 6 vols. 
 
 Cranch (William) . Patent Cases on App. from 
 Commissioner of Patents, 1841-48. 1 vol. 
 published byCom. of Patents, in Ex. Doc. No. 
 54, 1848. 
 
 Cranch & Davis. See Peters. 
 
 Crawford (George) & Dix (Edward S.). Cases 
 in the Cir. in Ireland, also at Nisi Prius and 
 Criminal Courts at Dublin, 1839-46. 3 vols. 
 
 Crawford (George) & Dix (Edward S.). Notes 
 of Cases in the Courts of Law & Eq. in Ireland, 
 1837-38. 1vol. 
 
 Creswell (Creswell). English Insolvency Cases, 
 
 1827-29. 1 vol. of 256 pp. 
 Criminal Law Magazine. Jersey City, N. J., 
 
 1880-82. 3 vols. Monthly. 
 Criminal Law Reports. See Green (N. St. 
 
 John) . 
 Criminal Recorder. New York. 'See Wheeler 
 
 (J. D.). 
 Criminal Recorder. Philadelphia, 1813. 1 vol. 
 Cripp (H. W.). Church and Clergy Cases, 
 
 1847-50. 1vol. of 288 pp.; no title-page or 
 
 index. 
 
 Critchfleld (L. J.). See Ohio State. 
 
 Crockford (John) . In Maritime Law Cases. 
 
 Croke (Sir George). Ch., K. B., and C. P., 
 1583-1641. 4vols. The reports in Croke are 
 generally short, and, as the books consist of 
 four closely-printed volumes, the cases are, of 
 course, very numerous. ' Occasionally cases are 
 misreported ; but, taken as a whole, Croke has 
 enjoyed from early times a high reputation, 
 and even now Is constantly cited. Wallace, 
 Report. 198. The Chancery cases in the time 
 of Elizabeth are Sir Harbottle Grimston's. 
 The reports are commonly cited by the name 
 of the author and the reigning sovereign : vol. 
 1 as Croke Car., vols. 2 & 3 Croke Ellz., and 
 vol. 4 Croke Jac. 
 
KEPOKTS 
 
 550 
 
 REPORTS 
 
 Crompton (Charles) & Jervis (J.)- Exch. and 
 
 Exch. Chamb., 1830-33. 2 vols. 
 Crompton (Charles) & Meeson (B.). Exch. 
 
 and Exch. Chamb., 1832-34. 3 vols. 
 Crompton (Charles), Meeson (B.), & Eoscoe, 
 
 (H.). Exch. and Exch. Chamb., 1834-35. 
 
 2 vols. 
 
 Crounse (L.). See Nebraska. 
 
 Crown Cases Reserved. See Law Keports, Crown 
 Cases Reserved. 
 
 Crumrine (Boyd). See Pittsburgh Keports. 
 
 Cummins (John). See Idaho. 
 
 Cunningham (Timothy). K. B., 1734-36, time 
 of Hardwioke. 1 vol. 
 
 Curry (Thomas). See Louisiana. 
 
 Curteis (W. C). Eccl. Cts. at Doctors' Com- 
 mons and High Court of Delegates, 1834-44. 
 
 3 vols. 
 
 Curtis (B. R.). Cir. Ct. of the U. S. for the 
 First Cir., 1851-56. 2 vole. 
 
 Curtis (B. R.). United States Supreme Court. 
 The reports of Dallas, Cranch, Wheaton, 
 Peters, and the first seventeen volumes of 
 Howard, condensed and given in twenty-one 
 volumes, with a digest making the twenty- 
 second. (Continued to 2d Black by Miller's 
 Decisions.) 
 
 Gushing (Luther S.). Election Cases contested 
 inMassachusettsLegislature,1780-1834. Alater 
 edition gives the cases down to 1852 in the same 
 volume, by L. S. Cushing, Charles W. Storey, 
 and Lewis JoBselyn. 
 
 Cushing (Luther S.). Massachusetts Supr. Ct., 
 1848-53. 12 vols. See Massachusetts. 
 
 Cushman (John S.). See Mississippi. 
 
 Daily Register. New York, 1872-81. 19 vols. 
 Dakota Supreme Court, 1867-77. 1 vol., by 
 
 Granville G. Bennett. 
 Dale (James M.). 
 
 1868-71. 1 vol. 
 
 English Ecclesiastical, 
 
 Dalison (Gulielme). See Benloe. 
 
 Dallam (James TV.). Texas Reports, Supr. Ct., 
 1840^4. 1 vol. It is part 2 of Dallam's 
 Digest of Laws. 
 
 Dallas (Alexander James). Four vols., con- 
 taining Pennsylvania Supr. Ct. Reports from 
 1754 to the Revolution, and from 1780 to 
 1806 ; Circ. Ct. of the U. S. for the Third Giro, 
 from 1792 'to 1806 ; TJ. S. Supr. Ct., and the 
 Federal Ct. of App., from 1790 to 1800. See 
 Pennsylvania State. 
 
 Dalrymple (Sir J.). Decisions of the Lords of 
 Council and Session of Scotland, 1661-81. 2 
 vols. See Stair. 
 
 Daly (Chas. P.). New York C. P. Reports, 
 1860-80. 8 vols. 
 
 Dana (James G.). 
 1833-40. 9 vols. 
 
 Kentucky Gt. of App., 
 
 Daniell (Edmund R.). Exch., Eq. Side, before 
 Sir Richard Richards, 1817-20. 1 vol. 
 
 Danner (J. L. C.). See Alabama, n. s. 
 
 Danson (F. M.) & Lloyd (J. H.). English 
 Mercantile Gases, 1828-39. 1 vol. 
 
 Daveis (Edward H.). U. S. Dist. Ct., Maine 
 Dist., 1839-49. 1 vol. 
 
 Davies, or Davis, or Davy (Sir John). K. B., G. 
 P., and Exch. in Ireland, 1604-13. 1 vol. 
 Davies, who was chief-justice of Ireland, and 
 died on the night of the day on which he had 
 been appointed chief-justice of England, was 
 
 a man of great genius and accomplishments 
 For an account of these reports, see Walkpo' 
 Report. 329. ' ^^' 
 
 Davies (John). A collection of English Patpnt 
 Cases, 1785-1816. 1vol. ® ' 
 
 Davis (Sir John). See Davies (Sir John). 
 
 Davis (R. G.). Supr. Ct. of the Sandwich 
 
 Islands, 1857-65. 1vol. 
 Davison (Henry) & Merivale (Herman^ 
 
 B. and Exch., 1843-44. 1 vol. ^' 
 
 Davy (Sir John). See Davies (Sir John). 
 
 Day (Thomas). Connecticut Supr. Ct. 1802-13. 
 5 vols. See, also, Connecticut. 
 
 De Gex (John) . Bankr. Gas. in Ct. of Eeview 
 and Lord Chancellor's and Vice-Chancellor'B 
 Cts., 1844^48. 1 vol. 
 
 DeGex (John), Fisher (F.), & Jones (H. C.) 
 Bankr. Apps., 1859-61. 1vol. of 92 pp. (All 
 the cases in this volume are also reported in 
 DeGex, Fisher & Jones, Chanctery.) 
 
 DeGex (John), Fisher (F.), & Jones (H. C). 
 Lord Chancellor's Ct. and Ct. of Apj)8. in 
 Ch., 1859-62. 4 vols. 
 
 De Gex (John) & Jones (H. C). Bankr. Apps., 
 1857-59. 1 vol. (All the cases in this volume 
 are reported in De Gex & Jones, Chancery.) 
 
 DeGex (John) & Jones (H. C). Lord Chan- 
 cellor's Gt. and Ct. of Apps. in Ch., 1857-59. 
 4 vols. 
 
 DeGex (John), Jones (H. C), & Smith (B. 
 H.). Bankr. Apps., 1862-65. 1 vol. (All 
 the cases in this volume are also reported in 
 De Gex, Jones & Smith, Chancery.) 
 
 DeGex (John), Jones (H. C), & Smith (R. 
 H.). Lord Chancellor's Ct. and Ct. of Apps. 
 in Ch., 1863-65. 4 vols. 
 
 DeGex (John), Macnaghten (S.), & Gordon 
 (A.). Bankr. Apps., 1851-56. lvol.of592pp. 
 (AH the cases in this volume are also reported 
 in De Gex, Macn. & Gordon, Chancery.) 
 
 DeGex (John), Macnaghten (S.), &, Gordon 
 ( A. ) . Lord Chancellor's Ct. and Ct. of Apps. 
 in Ch., 1851-57. 8 vols. 
 
 DeGex (John) & Smale (John). High Court 
 of Ch., 1846-53. 5 vols. 
 
 De Winchedon. See Year-Book. 
 
 De Witt (E. L.). See Ohio State. 
 
 Deacon (Edward E.). Bankr. Cas. in the Ct. 
 of Review and before the Lord Chancellor, 
 1835-40. 4 vols. 
 
 Deacon (Edward E.) & Chitty (Edward). 
 Bankr. Cas. in the Ct. of Review and before 
 the Lord Chancellor, 1832-35. 4 vols. 
 
 Deady (Matthew P. ) . U. S. Circ. and Dist. Cte. 
 of Oregon and California, 1859-69. 1 vol. 
 
 Deane (James P.) & Swabey (M. C. M.). 
 Eccl. Cts. at Doctors' Commons, 1855-57. 1 
 vol. This volume is usually cited Deane. 
 
 Deane (John F.). See Vermont. 
 
 Dearsly (Henry Richard). Crown Cas, Re- 
 served, 1853-56. 1 vol. 
 
 Dearsly (H. R.) & Bell (Thomas). CroiraCas. 
 Reserved, with a few Cases in the Q. B. ana 
 Court of Errors, 1856-58. 1 vol. 
 
 Deas (George) & Anderson (James). SesBionB, 
 
 Jury, and Justiciary Cts. in Scotland, IS-ilwa. 
 
 5 vols. 
 Delane (W. F. A.). Election Cases, Decisions 
 
 of Revising Courts, 1832-35. 1 vol. 
 Delaware. See Harrington (Samuel M.) an^ 
 
 Houston (John W.). 
 
REPORTS 
 
 551 
 
 REPORTS 
 
 Delaware Chancery Reports. Cases In the Ct. 
 of Ch. of Delaware, 1814-65. 2 vols., by 
 Daniel M. Bates. 
 
 Denio (Hiram) . New York Supr. Ct. and Ct. 
 of Errors, 1845-48. 5 vols. See Lalor (T. 
 M.). 
 
 Denis (Henry). See Louisiana. 
 
 Denison (Stephen C). Crown Cas. Reserved, 
 1844-52. 2 vols. The second vol. partly re- 
 ported by Robert R. Pearce. 
 
 Desaussure (Henry William). Eq. Cas. in the 
 Ct. of App. and Ch. in South Carolina, 1784r- 
 1816. 4 vols. 
 
 Devereux (John C). U. S. Ct. of Claims Re- 
 ports and Digest of Opinions, from the organ- 
 ization of the _ Court to 1856. 1 vol. 
 
 Devereux (Thomas P. ) . North Carolina Supr. 
 Ct., Law, 1826-34. 4 vols. 
 
 Devereux (Thomas P. ) . North Carolina Supr. 
 Ct., Eq. Cas., 1826-34. 2 vols. 
 
 Devereux (Thomas P.) & Battle (W. H.). 
 North Carolina Supr. Ct., Law, 1834-40. 4 
 vols. 
 
 Devereux (Thomas P.) & Battle (W. H.). 
 North Carolina Supr. Ct., Eq. Cas., 1834^-40. 
 2 vols. 
 
 DeWitt (E. L.). See Ohio State. 
 
 Dickens (John). High Ct. of Ch., 15.59-1798. 
 2 vols. Mr. Dickens was a very attentive and 
 diligent register ; but his notes, being rather 
 loose, are not to be considered as of very high 
 authority. Lord Bedesdale, 1 Sch. & L. 240. 
 See, also, Sugd. Vend. 146. A few cases, 
 where the opinions are printed from manu- 
 scripte prepared for publication, are valuable. 
 Wallace, Report. 476. 
 
 Dillon (John F.). U. S. Cir. Ct., Eighth Circ, 
 1870-81. 5 vols. 
 
 Dirleton (John Nisbet of). Decisions of the 
 Lords of Council and Session of Scotland, 
 1665-77. 1vol. 
 
 Disney (William) . Superior Ct. of Cincinnati, 
 Ohio, 1854r-59. 2 vols. 
 
 Dodson (John). High Ct. of Adm., 1811-22. 2 
 vols. 
 
 Donnell (R.). Irish Land Court Reports, 1871- 
 76. 1vol. 
 
 Donnelly (Ross). English Ch. , 1836-37. 1vol. 
 
 Douglas (Sylvester, Lord Glenbervie). Con- 
 tested Elections in Parliament, 1774-6. 4 vols. 
 
 Douglas (Sylvester, Lord Glenbervie). K. B., 
 1778-85. 4 vols. Contain Lord Mansfield's 
 decisions, and, with Burrow, highly esteemed. 
 
 Douglass (Samuel T.). Michigan Supreme 
 Court, 1843-47. 2 vols. 
 
 Dow (P.). Cases in the House of Lords upon 
 App. and Writs of Error, 1812-18. 6 vols. 
 
 Dow (P.) & Clark (C). Cases in Parliament, 
 1827-32. 2 vols. This is often cited as Dow, 
 New Series. 
 
 Dowling (Alfred S. & Alfred). Q. B. Practice, 
 with Points of Practice decided in the C. P. 
 and Exch., 183041. 9 vols. The first five vol- 
 umes are by Alfred 8., and the last four by 
 Alfred Dowling. 
 
 Dowling (Alfred & Vincent). Q. B. Practice 
 Cases with the Points of Practice decided in the 
 0. P. and Exch., 1841-43. 2 vols. Cited as 
 Dowling, New Series. 
 
 Dowling (Alfred) and Lowndes (John J.). Q. 
 B. Practice Ct. with the Points of Practice 
 decided in the C. P. and Exch., 1843-49. 
 7 vols. 
 
 Dowling (James) & Ryland (Archer). Cases at 
 
 Nisi Prius, in K. B. and Home Circuit, 1822- 
 
 23. 1 vol. of 63 pp. 
 Dowling (James) & Ryland (Archer). K. B. 
 
 1822-37. 9 vols. 
 Dowling (James) & Ryland (Archer). Magis- 
 trates' Cases in K. B., 1822-27. 4 vols. 
 Draper (William H.). K. B. Upper Canada, 
 
 1839-31. 1 vol. 
 Drew (J. B. C). See Florida. 
 Drewry (Charles S.). High Court of Ch., 1852- 
 
 59. 4 vols. 
 Drewry (Charles S.) & Smale (J. J.). High 
 
 Court of Ch., 1859-65. 2 vols. 
 Drinkwater (W. L.). Cases in the C. P., 1840- 
 
 41. 1vol. of 240 pp. 
 Drury (William B.). Ch. in Ireland, time of 
 
 Sugden, 1843^4. 1 vol. 
 Drury (William B.). Select Cases in the Ch. 
 
 in Ireland, temp. Napier, 1858-59. 1 vol. 
 Drury (W. B.) & Walsh (F. W.). Ch. in Ire- 
 land, time of Plunket, 1837-40. 2 vols. 
 Drury (W. B.) & Warren (Robert B.). Ch. in 
 
 Ireland, time of Sugden, 1841-43. 4 vols. 
 Dudley (C. W.). South Carolina Ct. of App., 
 
 Law Cases, 1837-38. 1 vol. 
 Dudley (C. W.). South Carolina Ct. of App., Eq. 
 
 Cases, 1837-38. 1 vol. 
 Dudley (G. M.). Superior Cts. of Law and Eq. 
 
 in Georgia, ,1830-38. 1 vol. 
 Duer (John) . See New York, Superior Court. 
 Duke (G. ) . The Law of Charitable Uses, " with 
 
 many Cases both Ancient and Modem," 1554- 
 
 1670. 1 vol. 
 
 Duncan (JohnM.). Entail Cases, House of Lords 
 and Court of Sessions, 1726-1855. 1 vol. 
 Many of these cases are not reported else- 
 where. 
 
 Dunlop (Alexander) . See Sessions Cases. 
 Dunlop (Alexander) & Murray. See Sessions 
 
 Dunphy (Thomas) & Cummins (Thomas J.). A 
 Collection of Remarkable Trials of all Coun- 
 tries to 1873. 1 vol. 
 
 Durfee (Thomas) . See Rhode Island. 
 
 Durie. Ct. of Sess. Scotch, 1631-42. 1 vol. by 
 Sir Alex. Gibson of Durie. 
 
 Dumford (Charles) & East (Edward H.). See 
 Term. 
 
 Dutcber (Andrew). See New Jersey Supr. Ct. 
 
 and Ct. of Errors, 1855-63. 5 vols. 
 Duval (Alvin). Kentucky Ct. of App. 1863-66. 
 
 3 vols. 
 
 Duval (George). See Canada Supreme Court. 
 
 Dwight (Theodore W.), Charity Cases, 1515- 
 1680. This is a collection of cases showing the 
 jurisdiction of the Court of Ch. over Charities 
 before the Statutes of Elizabeth. 
 
 Dyer (Sir James). K. B. and C. P. Exch. and 
 Ch., 1513-83. 3 vols. Short notes, never in- 
 tended by Dyer to have been published ; always 
 regarded, however, as among the best of the 
 old reports. Wallace, Report. 136. 
 
 Eagle (F. K.) (feYounge (E.). Cases relating 
 to Tithes, 1204-1825. 4 vols. 
 
 East (Edward H.). K. B. 1800-12.. 16 vols. 
 
 Ecclesiastical Reports. See English Eccl. Re- 
 ports. 
 
REPORTS 
 
 552 
 
 REPORTS 
 
 Eden (Robert H.). High Ct. of Ch. 1757-66. 3 
 vols. Published from the manuscript of Lord 
 Chancellor Northington. 
 
 Edgar (John). Scotch Ct. of Sess. 1724-35. 1 
 vol. 
 
 Edinburgh Law Journal, 1833-37. 3 vols. 
 
 Edinburgh Star Reports. Scotch Ct. of Sess. 
 1824-35. 1vol. 
 
 Edmonds (John W.). Select Cases in Cts. of 
 New Xork. Not elsewhere reported, 1834-48. 
 1 vol. 
 
 Edwards. (Charles). New York Ch., 1831-48. 
 4 vols. 
 
 Edwards (Edward). Abridgment of Preroga- 
 tive Court Cases to 1846. 1 vol. 
 
 Edwards (J. C). See Missouri. 
 
 Edwards (Thomas). High Ct. of Admiralty, 
 1808-13. 1 vol. 
 
 Elchle (Patrick Grant of). Ct. of Sess. Scotch, 
 1733-54. 3 vols. 
 
 Election Cases. 14 & 15 Geo. III. 
 
 Ellis (Thomas F.) & Blackburn (Colm). Q. B. 
 1853-58. 8 vole. Among modern reports few 
 are more valued for the success with which ex- 
 traneous matter is stripped oiT and nothing but 
 the essence of the case presented to the reader. 
 9 Lond. Law Mag. 339. 
 
 Ellis, Best & Smith. See Best & Smith. 
 
 Ellis (T. F.), Blackburn (C.),&ElliB (Francis). 
 Q.B., 1858. 1vol. 
 
 Ellis (T. F.) & Ellis (F.). Q. B., 1858-61. 3 
 vols. 
 
 English (E. H.). See Arkansas. 
 
 English Judges. Scotch Ct. of Sess. 1655-61. 1 
 vol. 
 
 English Admiralty Reports. A complete Series 
 of all the English Admiralty Reports down to 
 Part III. of W. Robinson's Reports, vol. 3 (or 
 to the commencement of our series of " Eng- 
 lish Law and Equity Reports"), with Notes 
 by George Minot, and comprising all cases re- 
 ported in the several volumes of Notes of 
 Cases which are not contained in the regular 
 reports, and all the Appeal Cases in Knapp's 
 P. C. Reports and Moore's P. C. Reports. 9 
 vols. 
 Vol. 1 contains 1 and 3 C. Robinson. 
 
 2, 3 and 4 C. Robinson. 
 
 3, 5 and 6 " 
 
 4, Edwards, Hay & Marriott, and the Ap- 
 
 peal Cases in Knapp & Moore. 
 5, 1 and 3 Acton, and Selections from 
 
 Notes of Cases. 
 6, 1 and 2 Dodson. 
 7, 1 and 2 Haggard. 
 
 8, 3 Haggard, and 1 Wm. Robinson. 
 
 9, 2 and 3, Parts 1 and 3, Wm. Robinson. 
 
 English Chancery Reports. With Notes and Re- 
 ferences to English and American Authorities. 
 Being Reports of Cases in the High Cts. of 
 Ch., the Rolls Court, and the Vice-Chancery 
 Cts. of England, 1833-65. 69 vols.; the first 
 46 vols, were published in New York, and the 
 remaining vols, in Boston. 
 Vol. 1 contains Simons & Stuart, 1 and 2. 
 
 2 Simons, 1 and 2. 
 
 3 Russell, 3 and 3. 
 
 4 Russell, 4. Jacob, 1. 
 
 5 Russell, 5. Russell & Mylne, 1. 
 
 6 Simons, 3 and 4. 
 
 7 Mylne & Keen, 1 and 3. 
 
 8 Simons, 7 and 8. 
 
 9 Simons, 5 and 6. 
 
 10 Mylne & Keen, 3. George Cooper. 
 
 Vol. 11 Russell & Mylne, 3. Lloyd & BonM 
 13 Turner & Russell, 1. Tamlvn 1 
 
 13 Mylne & Craig, 1. ' ' 
 Stewart & Macnaghten. 
 
 14 Mylne & Craig, 2 and 3. 
 
 15 Keen, 1 and 3. 
 
 16 Simons, 9 and 10. 
 
 17 Beaven, 1 and 3. 
 
 19 Phillips, 1. '^ 
 
 30 Younge & CoUyer, 1. 
 21 Younge & CoUyer, 2. 
 33 Phillips, 3. 
 
 33 Hare, 1. 
 24 Hare, 2. 
 35 Hare, 3. 
 
 26 Hare, 5. 
 
 27 Hare, 7. 
 
 28 CoUyer, 1. 
 
 29 Beavan, 7. 
 SO Hare, 4. 
 
 31 Hare, 6. 
 
 32 Hare, 8. 
 
 33 CoUyer, 2. 
 34-39 Simons, 11-16. 
 
 40 Simons (New Series), 1. 
 
 41 Hare, 9. 
 
 43 Simons, 17. Simons (New Series), i 
 
 43 Beavan, 3. 
 
 44, 45 Hare, 10, 11. 
 
 46 Russell, 1. Mylne & Craig, 5. 
 
 47-49 Macnaghten & Gordon, 1-3. 
 
 50-57 De Gex, Macnaghten & Gordon, 1-8. 
 
 58-61 DeGex & Jones, 1-4. 
 
 62-65 De Gex, Fisher & Jones, 1-4. 
 
 66-69 De Gex, Jones & Smith, 1-4. 
 
 English Common Law Reports, containing a re- 
 print in full of the cases decided in the Nisi 
 Prius Cts. from 1815 to 1849, and in the 
 K. B. and Q. B. and C. P. from 1813 to tie 
 time of the commencement of the Law Re- 
 ports, 1865. 118 vols. The volumes after 65 
 contain notes and references to American de- 
 cisions. 
 Vol. 1 contains Taunton, 5 & 6. 
 
 2 Taunton, 7. Starkie, 1. 
 
 3 Holt. Starkie, 2. 
 
 4 Taunton, 8. MarshaU, 1 & 2. 
 J. B. Moore, 1, 2 & 3. , 
 
 5 Broderlp & Bingham, 1. 
 Barnewall & Alderson, 3. 6ow, 1. 
 
 6 Broderip & Bingham, 3. 
 Barnewall & Alderson, 4. 
 
 7 Barnewall & Alderson, 5. 
 Broderip & Bingham, 3. 
 
 8 Barnewall & Cresswell, 1. Bingham, 1. 
 
 9 Barnewall &CressweU, 2. Binghani,2. 
 
 10 Barnewall & Cresswell, 3 & 4. 
 
 11 Bingham, 3. Barnewall & Cresswell, 5. 
 
 12 Carrington & Payne, 2. 
 Barnewall & CressweU, 5. 
 
 13 Bingham, 3. 
 
 Barnewall & Cresswell, 6. Bingliam, i. 
 
 14 BarnewaU & CressweU, 7. Starkie, 3. 
 Carrington & Payne, 3. 
 
 15 Bingham, 4. 
 
 Barnewall & CressweU, 8. BiDgham,5: 
 
 16 Dowling & Ryland, 1, 2, 3, 4, 5, 6, 7, 8. 
 Moore, 4 & 5. 
 
 Dowling & Ryland, N. P. CaM. 
 
 17 Moore, 6, 7, 8, 9, & 10. 
 Moore & Payne, 1 & 3. 
 Manning & Ryland, 1 & 2. 
 Barnewall & Cresswell, 9. 
 
 18 Chitty, 1 & 2. , 
 
 19 Bingham, 6. Carrington & Payne, *■ 
 
 30 Bingham, 7. BamewaU & Adolplms, i. 
 81 Barnewall & Cresswell, 10. 
 
 Ryan & Moody. Bingham, 8. 
 
REPORTS 
 
 553 
 
 REPORTS 
 
 Vol. 22 Barnewall & Adolphns, 3. 
 Moody & Malkin, 1. 
 Dowliug & Ryland, 9. Moore, 11 & 12. 
 
 23 Barnewall & Adolphus, 8. 
 BingMam, 9. 
 
 24 Barnewall & Adolphus, 4. 
 Carrinffton & Payne, 5. 
 
 25 Bingham, 10. Carrington & Payne, 6. 
 
 26 Douglas, 3 & 4. 
 
 27 Barnewall & Adolphus, 5. 
 Bingham's N. Cas. 1. 
 
 28 Adolphus & Ellis, 1. 
 Moore & Scott, 1 & 2. 
 Neville & Manning, 1, 2, & 8. 
 
 29 Adolphus & Ellis, 2. 
 Bingham's N. Cas. 2. 
 
 30 Adolphus & Ellis, 3. 
 Moore & Scott, 3 & 4. 
 
 Neville & Manning, 4. Scott, 3. 
 
 31 Adolphus & Ellis, 4 & 5. 
 
 32 Bingham's N. Cas. 3. 
 Carrington & Payne, 7. 
 
 33 Adolphus & EUis, 6. 
 Bingham's N. Cas. 4. 
 
 34 Adolphus & Ellis, 7. 
 Carrington & Payne, 8. 
 
 35 Bingham's N. Cas. 5. 
 Adolphus & Ellis, 8. 
 
 36 Adolphus & Ellis, 9. Scott, 3 & 4. 
 Neville & Manning, 5 & 6. 
 Neville & Perry, 1. 
 
 37 Adolphus & Ellis, 10. 
 Bingham's N. Cas. 6. 
 
 38 Carrington & Payne, 9. Deacon, 1, 
 
 39 Adolphus & Ellis, 11. 
 Manning & Granger, 1. 
 
 40 Adolphus & Ellis, 12. 
 Manning & Granger, 3. 
 
 41 Carrington & Marshman, 1. 
 Adolphus & Ellis (New Series), 1. 
 
 43 Manning & Granger, 3. 
 
 Adolphus & Ellis (New Series), 2. 
 
 43 Manning & Granger, 4. 
 Adolphus & Ellis (New Series) , 3. 
 
 44 Manning & Granger, 5. 
 
 45 Adolplxus & Ellis (New Series), 4. 
 
 46 Manning & Granger, 6. 
 
 47 Carrington & Kirwan, 1. 
 
 48 Adolphus & Ellis (New Series), 5. 
 
 49 Manning & Granger, 7. 
 
 50 Manning, Granger & Scott, 1. 
 
 51 Adolphus & Ellis (New Series), 6. 
 62 Manning, Granger & Scott, 2. 
 
 53 Adolphus &^llis (New Series), 7. 
 
 54 Manning, Granger & Scott, 3. 
 
 55 Adolphus & Ellis (New Series), 8. 
 56, 57 Manning, Granger & Scott, 4, 5. 
 58, 59 Adolphus & Ellis (New Series), 
 
 9,10. 
 
 60 Manning, Granger & Scott, .6. 
 
 61 Carrington & Kirwan, 2. 
 
 62 Manning, Granger & Scott, 7. 
 
 63, 64 Adolphus & Ellis (New Series), 
 11, 12. ' 
 
 65 Manning, Granger & Scott, 8. 
 
 66 Adolphus <& Ellis (New Series), 13. 
 
 67 Manning, Granger & Scott, 9. 
 
 68, 69 Adolphus & Ellis (New Series), 
 
 70 Common Bench, 10. 
 
 71 Adolphus & Ellis (New Series), 16. 
 73 Ellis & Blackburn, 1. 
 
 73, 74 Common Bench, 11, 13. 
 
 75 Ellis & Blackburn, 3. 
 
 76 Common Bench, 13. 
 
 77 Ellis & Blackburn, 3. 
 
 78 Common Bench, l4. 
 
 79 Adolphus & Ellis (New Series), 17. 
 80, 81 Common Bench, IS, 16. 
 
 Vol. 82 EUis & Blackburn, 4. 
 
 83 Adolphus & Ellis (New Series), 18. 
 
 84 Common Bench, 17. 
 
 85 Ellis & Blackbui-n, 5. 
 
 86 Common Bench, 18. 
 
 87 Common Bench (New Series) , 1. 
 
 88 EUis & Blackburn, 6. 
 
 89 Common Bench (New Series) , 3. 
 
 90 EUis & Blackburn, 7. 
 
 91 Common Bench, 3. 
 
 92 EUis & Blackburn, 8. 
 
 93-95 Common Bench (New Series), 4-6. 
 96 Ellis, Blackburn & EUis. 
 97-100 Common Bench (New Series), 7- 
 10. 
 
 101 Best & Smith, 1. 
 
 102 Ellis & Ellis, 1. 
 
 103, 104 Common Bench (New Series) , 11, 
 12. 
 
 105 Ellis & Ellis, 3. 
 
 106 Common Bench (New Series) , 13. 
 
 107 EUis & EUis, 3. 
 
 108, 109 Common Bench (New Series), 14, 
 
 110 Best & Smith, 2. 
 
 Ill, 112 Common Bench (New Series) , 16, 
 17. 
 
 113 Best & Smith, 3. 
 
 114, 115 Common Bench (New Series), 18, 
 19. 
 
 116-118 Best & Smith, 4r-6. 
 English Common Pleas Reports. 
 Taunton, 5-8, 4 vols. 
 Broderip & Bingham, 3 vols. 
 Bingham, 10 vols. 
 Bingham's New Cases, 6 vols. 
 Manning & Granger, 7 vols. 
 Manning, Granger & Scott, 18 vols. 
 Scott (New Series) , 19 vols. 
 
 English Crown Cases Reserved. Reports of 
 Cases Reserved for the Consideration of the 
 Twelve Judges of England. From 1799 to 
 1853. 6 vols. Vols. 4, 5, and 6 contain notes 
 and references to American decisions. 
 Vol. 1 contains Russell & Ryan. 
 3 Moody, 1. 
 
 3 Jebb (Irish). 
 
 4 Moody, 3. 
 
 5 Denison, 1. 
 
 6 Denison & Pearce. 
 
 English Ecclesiastical Reports, 1809-44. Edited 
 by E. D. Ingraham. 7 vols. 
 Vol. 1 contains Phillimore, 1, 3, and 3. 
 3 Adams, 1, 3, and 3. 
 
 3 Haggard, 1. Fergusson. 
 
 4 Haggard, 2. 
 
 Haggard's Consistory, 1 and 3. 
 
 5 Haggard, 3. Lee, 1. 
 
 6 Lee, 3. Curteis, 1. 
 
 7 Curteis, 2 and 3. 
 
 English Exchequer Reports. Reports of Cases 
 in the Cts.of Exch. andExch. Chamb., from 
 1824 to 1866, inclusive, with Additional Cases, 
 decided during the same Period, selected from 
 the Contemporaneous Reports, with references 
 to decisions in the American Courts. 47 vols. 
 
 McClelland & Tounge. 1 vol. 
 
 Tounge & Jervis. 3 vols. 
 
 Crompton & Jervis. 2 vols. 
 
 Crompton & Meeson. 2 vols. 
 
 Crompton, Meeson, &Ro6coe. 2 vols. 
 
 Meeson & Welsby. 16 vols. 
 
 Welsby, Hurlstone, & Gordon. 11 vols. 
 
 Hurlstone & Norman. 7 vols. 
 
 Hurlstone & Coltman. 3 vols. 
 English House of Lords Cases, 1847-66. 11 
 vols. See Clark and FuineUy. 
 
REPORTS 
 
 554 
 
 REPORTS 
 
 Fergusson (Sir James), Consistorial Ct of 
 Edinburgh, 1696-1818, with a few cases in'the 
 Appendix back to 1534 (Fergueson's Consisto. 
 rial ) . 
 
 Feuerbach (A. B.). Remarkable Crlminil 
 Trials, London, 1846. 
 
 Finch (Sir Heneage). Cases in Ch. in the time 
 of Finch, 1673-80. 1vol. Reported by Wm 
 Nelson, and sometimes cited "Nelson 
 Folio." 
 
 Finlason (F.). Leading Cases on Heading and 
 
 Parties to Actions, 1847. 1 vol. 
 Fisher (R. ) . Prize Cases in the Diet. & Cir. Cte. 
 
 of the U. S. for the Pennsylvania Dist. and one 
 
 case in the Massachusetts Dist. , 1813-13. l vol, 
 Fisher (Samuel S.). Cases upon Letters Patent 
 
 in the Cir. Cts. of the U. S., 1848-73. 6 vols. 
 
 This series is known as Fisher's Patent Cma.' 
 Fisher (Wm. H.). Cases upon Letters Patent 
 
 in the Supr. and Cir. Cts. of the U. S., 1821- 
 
 50. 1 vol. This volume is known as Fisher's 
 
 Patent Seports. 
 
 Fitz-Gibbons (John). Cases in the K. B., Ch , 
 C. P., & Exeh., 1728-33. 1 vol. 
 
 English Bang's Bench and Queen's Bench Re- 
 ports. 
 
 Hobart. 1 vol. 
 
 Douglas, 8 and 4. 2 vols. 
 
 East. 16 vols. 
 
 Chitty. 2 vols. 
 
 Barnewall & Alderson. 3-5. 3 vols. 
 
 Barnewall & Cresswell. 10 vols. 
 
 Barnewall & Adolphus. 5 vols. 
 
 Adolphus & Ellis. "12 vols. 
 
 Queen's Bench (Ad. & E. N. S.). 18 vols. 
 
 Ellis & Blackburn. 8 vols. 
 
 Ellis, Blackburn, & Ellis. 1 vol. 
 
 Ellis & Ellis. 3 vols. 
 
 Best & Smith. 6 vols. 
 English Law and Equity Reports. Containing 
 Reports of all the Cases before the House of 
 Lords, Privy Council, the Lord Chancellor, 
 the High Ct. of App. in Ch., all the Common 
 Law Cts., the Ct. of Criminal Appeal, and the 
 Admiralty and Ecclesiastial Courts. Edited 
 by E. H. Bennett and Chauncey Smith. 40 
 vols. 
 
 The Law and Equity Reports commence at 
 Michaelmas Term, 1850, and Vol. I. is in im- 
 mediate succession to the 5 Exchequer Re- 
 ports, by Welsby, Hurlstone, and Gordon, and 
 15 Queen's Bench Reports (69 Eng. Com 
 Law), and 10 Common Bench Reports (70 
 Eng. Com. Law). 
 English Law Reports. See Law Reports. 
 English Railway Cases. Cases relating to Rail- 
 ways and Canals, in the Courts of Law and 
 Eq. from 1835 to 1852. Edited, with notes, 
 by S. W. Bates and Chauncey Smith. 6 vols. 
 English Reports. A reprint of " All the Cases 
 in the various Cts. of England, believed to be 
 of value in this country. Edited, with notes, 
 by N. C. Moak," 1872-80. 30 vols. They are 
 generally known as " Moak's" English Re- 
 ports. 
 
 Equity Cases Abridged. Cases in the High 
 Court of Ch., 1667-1744. 3 vols. This work 
 is a digest, rather than reports, and is fre- 
 quently cited. The first volume, which is at- 
 tributed to Pooley, is of excellent authority ; 
 the second, much less so. 
 
 Equity Reports. See Spottiswoode. 
 
 Espinasse (Isaac). Nisi Prius Cases in the K. 
 B. and C. P., 1793-1807. 6 vols. 
 
 Evans (D. T.). The Law Digest, London, 1856- 
 73. 9 vols. 
 
 Exchequer. Ct. of Exeh. and Exch. Chamb., 
 1848-56. 11 vols. 
 
 Vol. 1-9. V. Welsby, E. T. Hurlstone, & J. 
 Gordon. 
 10, 11. E. T. Hurlstone & J. Gordon. 
 
 Exchequer Cases. See Court of Exchequer, 
 Scotland, 1840-50. 1 vol. 
 
 Faculty Collection. Scotch Ct. of Sess. Cases, 
 
 1752-1835. 31 vols, folio. 
 Faculty Collection. Scotch Ct. of Sess. Cases, 
 
 1825-41. 16 vols. 8vo. 
 Fairfield (John). See Maine. 
 Falconer (Daniel). Scotch Ct. of Sess., 1744- 
 
 51. 2 vols. 
 Falconer (Thomas) & Fitzherbert (E. H.). 
 
 Election Cases, 1835-S9. 1 vol. 
 Farresly (Thomas). See Modern, 7th. 
 Federal Reporter. Cases in the Cir. and Dist. 
 
 Cts. of the U. S., 1880-83. 13 vols. 
 Fergusson (Sir James) . Consistorial Ct. of Edin. 
 
 burgh, 1811-17. 1vol. 
 
 Flanagan (Ste.W.) & Kelly (Charles). 
 Court in Ireland, 1840-43. 1 vol. 
 
 Rolls 
 
 Flippin (Wm. S.). U. S. Cir. Ct. Reports, Old 
 Sixth and New Seventh Circ, 1859-77. 1 vol. 
 
 Florida Supreme Court, 1846-80. 17 vols. 
 Vol. 1, 1846. Joseph Branch. 
 
 8 (part of), 1847-48. James T. Archer. 
 3-4, 1849-53. David P. Hogue. 
 5-8, 1853-59. Mariano D. Papy. 
 9-11, 1859-67. JohnB. Galbraith. 
 13, 1867-69. John B. Galbraith & 
 
 A. B. Meeks. 
 13, 1869-71. James B. C. Drew. 
 
 14-15, 1871-76. Wm. A. Cocke. 
 16-17, 1876-80. George P. Kaney. 
 
 Fogg (George G.) . See New Hampshire. 
 
 Foley (Robert). Poor-Law Decisions, 1556- 
 1730. 1vol. 
 
 Fonblanque. See Equity Cases Abridged. 
 
 Fonblanque (J. W. M.). Cases in the several 
 Courts of the Commissioners in Bankruptcy, 
 under the Bankrupt Law Consolidation Act, 
 1849-53. 1vol. 
 
 Forbes (William). Lords of Council and Ses- 
 sion of Scotland, 1705-13. 1 vol. 
 
 Foreman. Supreme Ct. of Illinois, 1832-38. 1 
 vol. (A continuation of Breese's Reports,) 
 
 Forrest (Robert), Exch., 1800-01. 1vol. 176 pp, 
 
 Forrester (John A.). See Cases temp. Talbot. 
 
 Forsyth (Wm.). Cases and Opinions on Con- 
 stitutional Law, 1869. 1 vol. 
 
 Fortesque (John). Select Cases in allthe Cts. 
 of Westminster Hall, temp. Will. HI., Anne, 
 Geo. I., andG«o. II.; also the Opinion of all 
 the Judges of England relative to the 
 Grandest Prerogatives of the Royal Family, 
 and some Observations relating to the Prero- 
 gative of a Queen-Consort. 1 vol. 
 
 Foster (Michael). Commission for Trial ofKe- 
 bels in 1746, and other Crown Cases. 1 vol. 
 
 Foster (Sol, Jr. ) . See Legal Chronicle Reports. 
 
 Foster (T. C.) & Finlason (W. F.). Nisi Prins 
 Cases on Crown Side, on Circuit and in Cham- 
 bers, 1856-67. 4 vols. 
 
 Foster (W. L.). See New Hampshire. 
 
 Fountalnhall (Sir John Lander of). Lords of 
 CouncU and Session of Scotland, 1678-1713. i 
 vols. 
 
KEPORTS 
 
 555 
 
 REPORTS 
 
 Fox (Michael C.) & Smith (Thomas B. C). 
 K. B. and Ct. of Errors, Irish, 1833-25. 3 
 parts ia one volume. 
 
 France (L. B.). See Colorado. 
 
 Fraser (Simon). Disputed Electlono in Parlia- 
 ment, 1790-92. 2 vols. 
 
 Freeman (A. C). See American Decisions. 
 
 Freeman (John D.). Mississippi Supr. Ct., Ch. 
 Cases, 1839-43. 1 vol. 
 
 Freeman (N. L.). See Illinois. 
 
 Freeman (Richard). K. B. and C. P., 1670- 
 1704:. 1 vol. Freeman's notebook having 
 been stolen by a student, and these reports 
 published surreptitiously, they were for a long 
 time but little esteemed. Of late, however, 
 they have been re-edited, and enjoy a higher 
 reputation than they formerly did. Lord 
 Mansfield said, in Cowp. 16, " some of the 
 cases in Freeman are very well reported." 
 Wallace, Report. 390. 
 
 Freeman (Richard) . High Court of Ch. , 1660- 
 1706. 1 vol. Sometimes cited as 3 Freeman. 
 
 French (George) . See Equity Reports. 
 
 Fulton. Calcutta Supr. Ct., 1843-i4. 1 vol. 
 
 Galbraith (J. B.). See Florida. 
 
 Galbraith (J. B.) & Meeks (A. B.). See 
 
 Florida. 
 Gale (Charles J.). Exch., 1835, 1836. 3 vols. 
 Gale (C. J.) & Davison (Henry). Q. B. and 
 
 Exch. Chamb., 1841^3. 3 vols. 
 Gallieon (John). U. S. Cir. Ct., First Cir., 1813- 
 
 15. 2 vols. 
 Gardenhire (James B.). See Missouri. 
 Gardinier's New York Reporter. New York 
 
 Criminal Courts, 1830. 1 number. 
 Gasper. Small Causes Court. Calcutta Supr. 
 
 Ct., 1850-59. 1 vol. 
 Gayarre (Charles). See Louisiana. 
 Gazette of Bankruptcy. English Bankruptcy 
 Cases, 1862-63. 4 vols. No. 185 was the last 
 published ; no titles or index to vols. 3 and 4. 
 George (James Z.). See Mississippi. 
 Georgia. Supr. Ct., Cases at Law and Eq., 1846- 
 83. 65 vols, in 66. 
 Vol. 1-3, 1846, 1847. James M. Kelly. 
 4,5, 1848. James M. Kelly & 
 
 T. R. R. Cobb. 
 6-20, 1849-57. T. R. R. Cobb. 
 31-30, 1857-60. B.Y.Martin. 
 31-33 & 
 
 Supp . 1860-64 . G . N . Lester . 
 34-35, 1864-66. L.E.Bleckley. 
 36-44, 1866-73. N. J. Hammond. 
 45, 1873. N. J. Hammond & 
 
 Henry Jackson. 
 46-58, 1873-77. Henry Jackson. 
 59-65, 1877-83. Henry Jackson & 
 J. H. Lumpkin. 
 See Charlton (R. M. & T. U. P.), Dudley (G. 
 M.), and Georgia Decisions. 
 Georgia Decisions. Superior Cts. of Georgia, 
 
 1843,1843. 1vol. 
 Glbbs (George C.) . See Michigan. 
 Gibson (Alexander) . See Durie. 
 Giffard (J. W. de L.). High Court of Ch., 1858- 
 
 65. 5 vols. 
 Gilbert (J.). Cases in Law and Eq., 1713-15. 
 1 vol. A posthumous work, containing one or 
 two cases well reported, but generally consist- 
 ing of loose notes very badly edited. Wallace, 
 Report. 351. Commonly cited as Gilbert's 
 
 Gilbert (J.). Cases in Eq. in the Cts. of Ch. 
 
 & Exch., 1705-36, to which are added some se- 
 lect Eq. cases decided in the Exch. in Ireland. 
 Gill (Richard W.) . Maryland Ct. of App., 1843- 
 
 51. 9 vols. 
 Gill (R. W.) & Johnson (John). Maryland Ct. 
 
 of App ., 1839-43 . 13 vols . 
 Gill (Thomas). See Boston Police Reports. 
 Gilman (Charles) . See Illinois. 
 Gilmer (Francis W.) . Virginia Ct. of App., 1830, 
 
 1831. 1 vol. Sometimes cited as Virginia 
 
 Reports. 
 Gilmour (J.) & Falconer (D.). Ct. of Sess. 
 
 Cases, Scotland, 1661-86. 1vol. Part 1 by 
 
 Gilmour, part 3 by Falconer. 
 Gilpin (Henry D.). U. S. Dist. Ct., Eastern 
 
 Dist. of Penna., 1838-36. 1 vol. 
 Glanville (John). Election Cases decided by 
 
 the House of Commons, 1623-34. 1 vol. 
 Glascock (Walter) . K. B., C. P., and Exch., in 
 
 Ireland, 1831, 1833. 1 vol. 
 
 Glenn (S. F.) . See Louisiana Annual. 
 
 Glyn (Thomas C.) & Jameson (Robert S.). 
 
 Baukr. Cas., 1831-38. 3 vols. 
 Godbolt. Cases in the Several Courts at West- 
 minster Hall in the Reigns of Elizabeth, James 
 
 I., and Charles I. 1 vol. 
 Goldesborough (J.). See Brownlow & Goldes- 
 
 borough. 
 Goodeve (T. M.). Abstract of Reported Cases 
 
 relating to Letters Patent, 1876. 1 vol. 
 Gouldsborough (J.). Cases in all the Cts. at 
 
 Westminster, 28-43 Eliz. 1 vol. 
 Gow (Niel). Nisi Prius Cases in C. P. and on 
 
 Oxford Circuit, 1818-30. 1 vol. 
 Granger (Moses M.). See Ohio State. 
 Grant (Alexander). Upper Canada Ch., Cases 
 
 in the Ct. of Ch. of Ontario, 1849-81. 38 
 
 vols. 
 Grant (Alexander) . See Upper Canada, Error 
 
 and Appeals. 
 Grant (Alexander). See Chancery Chambers 
 
 Reports. 
 Grant (Benjamin). Penna.. Supr. Ct. Cases not 
 
 reported by the State Reporter, 1853-63. 3 
 
 vols. 
 
 Grattan (Peachy P.). Cases in the Sup. Ct. of 
 App. of Virginia, 1844-81. 33 vols. 
 
 Gray (Horace, Jr.). Massachusetts Sup. Ct., 
 1854r-60. 16 vols. 
 
 Green (Arnold) . See Rhode Island. 
 
 Green (C. E.). See New Jersey Equity. 
 
 Green (H. W.). See New Jersey Equity. 
 
 Green (J. S.). See New Jersey Law. 
 
 Green (N. St. John) . Criminal Law Reports, 
 being cases determined in all the Courts, 1871- 
 74, with a few cases back to 1856. 3 vols. 
 
 Green (C. J.). Trials for High Treason in Scot- 
 land, 1830. 1 vol. 
 
 Greene (George). Iowa Supreme Court, 1847- 
 53. 4 vols. 
 
 Greenleaf (Simon). See Maine. 
 
 Greenleaf (Simon). A Collection of Overruled, 
 Denied, and Doubted Decisions and Dicta. 1 
 vol. 
 
 Griffith. Poor Rate Cases, 1831-31. 1 vol. 
 
 Griswold (Hiram). See Ohio. 
 
 Guthrie (J.). Select Cases, Scotch Sheriff's 
 Courts, 1861-78. 1vol. 
 
REPORTS 
 
 556 
 
 REPORTS 
 
 GrwiUira (Sir Henry). Cases respecting Tithes, 
 13^4-1834. 4 vols. 
 
 Hadley (A.), See New Hampshire. 
 Hagan (Albert). See Utah Territory. 
 Hagans (J. M.), See West Virginia. 
 Haggard (John). Consistory Ct. of the City of 
 
 London, 1789-1821. 2 vols. 
 Haggard (John). Eccl. Cts. at Doctors' Com- 
 mons and High Ct. of Delegates, 1827-33. 4 
 
 vols. Vol. 4 contains only 519 pp. 
 Haggard (John.). High Court of Admiralty, 
 
 1822-38. 3 vols. 
 Hailes (Lord), (David Dalrymple). Lords of 
 
 Council and Session of Scotland, 1766-91. 2 
 
 vols. 
 Hale(J. E.). See California. 
 Hale (W. H.). Criminal Causes, Ecclesiastical 
 
 Courts of London, 1475-1640. 1 vol. 
 Hall (Frederic J.) & Twella (Philip). Ct. of 
 
 Ch., time of Cottenham, 1849-50. 2 vols. 
 Hall (Jonathan P.). See New York Superior 
 
 Court. 
 
 Hall (John E.). American Law Journal, 
 
 Philadelphia, 1808-17. 6 vols. (For vol. 7 
 
 see next. ) 
 Hall (JohnE.). Journal of Jurisprudence (a 
 
 continuation of the American Law Journal) 
 
 Philadelphia, 1821. 1 vol. 
 Hallett (Moses). See Colorado. 
 Halsted (George B.). New Jersey Ch., time of 
 
 Oliver S. Halsted, 1845-53. 4 vols. 
 Halsted (William). New Jersey Sup. Ct., 1796- 
 
 1804 and 1821-31. 7 vols. 
 Hamerton, Allen, & Otter. See New Sessions 
 
 Cases. 
 
 Hammond (Charles). See Ohio. 
 
 Hammond (N. J.). See Georgia. 
 
 Hammond (N. J.) & Jackson (Henry), See 
 Georgia. 
 
 Hand (Samuel). See New York Court of Ap- 
 peals. 
 
 Handy (E. D. & J. H.). Superior Ct. of Cin- 
 cinnati, 1854-56. 2 vole. Vol. 3 has only 288 
 pp., with neither title-page nor index; a 2d 
 vol. was published in 1877 in one volume. 
 
 Hanmer (J. W.), editor of Kenyon, which see. 
 
 Hannay. New Brunswick Supreme Court, 1867- 
 71. 2 vols. 
 
 Harcarse (Sir Roger Hog of). Scotch Court of 
 Sessions, 1681-91. 1 vol. 
 
 Hardin (Martin D.). Kentucky Ct. of Ann., 
 1805-08. 1 vol. 
 
 Hardres (SirT.). Exchequer, 1655-70. 1 voL 
 
 Hardwioke's Cases. Court of King's Bench at 
 Westminster, 7th to 10th Geo. II., during 
 which time Hardwicke presided in that Court, 
 to which are added some cases decided by Lee 
 ana two Equity cases by Hardwicke. 
 
 Hare. Bombay Sudder Ct., 1850-57. I vol. 
 
 Hare (Thomas). CourtofCh., 1841-53. 11 vols. 
 
 Hare (Thomas). See Railway & Canal Cases. 
 
 Hare (J. I. C.) & Wallace (H. B.). American 
 Leading Cases, Select Decisions of American 
 Courts, in several Departments of Law, with 
 especial reference to Mercantile Law, 1871. 2 
 vols. 
 
 Hargrave (Francis). State Trials and Proceed- 
 ings for High Treason, 1163-1781. 4th ed. 11 
 "Ols. folio. For a full account of the char- 
 
 acter and value of this work, which is an im 
 mense collection of cases brought toeethm v 
 hunting though every collection in luri«„7 
 and therefore having very different degFefflnf 
 merit, see Wallace, Reporters ; fortheStHd 
 see Howell. ™'i 
 
 Hargrove (Tazewell L.) See North Carolina 
 Harmon (John B.). See California. 
 Harper (William). South Carolina ConnHt,, 
 tionalCt., 1823-24. 1vol. "* ^™stltu. 
 
 Harper (William). South Carolina Ct of 
 
 App., Eq. Cas., 1824. 1 vol. "' 
 
 Harrington. Bombay Sudder Ct., 1860. 1 yol 
 
 Harrington (Samuel M.). Delaware Sun n 
 1832-56. 5 vols. '^ ' 
 
 Harris (George W.). See Pennsylvania State. 
 Harris (Thomas) & Gill (Richard W.). Marv 
 
 land Ct. of App., 1826-29. 2 vols. 
 Harris (Thomas) & Johnson (Reverdy). Marv- 
 
 land General Ct. and Ct. of App., 1800-SB 7 
 
 vols. 
 
 Harris (Thomas) & M'Henry (John). Mary- 
 land General Ct. and Ct. of App., 1700-99. 
 4 vols. The first volume contains cases in tlie 
 Roving Ct. and Ct. of App. prior to the Kevo- 
 lution. 
 
 -Harris (G. E.) & Simrall (G. H.). See Missis- 
 sippi. 
 
 Harrison (Benjamin). See Indiana. 
 Harrison (Joslah). See New Jersey, 1837-42. 
 4 vols. 
 
 Harrison & Hodgins. Upper Canada Munici- 
 pal Courts Reports, 1845-51. 1 vol. 
 
 Harrison (0. B. C.) & Rutherfurd (Heniy). 
 C. P., and Exch. Chamb. on App. irom tie 
 C. P., 1865-66. 1 vol. 
 
 Harrison (S. B.) & Wollaston (F. L.). K, B, 
 Bail Court, 1835-36. 2 vols. 
 
 Hartley (Oliver C). See Texas. 
 
 Hartley (0. C. & R. K.). See Texas. 
 
 Hastings (David R.). See Maine. 
 
 Haviland. Prince Edward's Island, 1860-71. 1 
 vol. Sometimes cited as Peters. 
 
 Hawaii Supreme Court. 1866-77. 1 vol. 
 
 Hawkins. See Cases tempore Talbot. 
 
 Hawkins (J.). See Louisiana Annual. 
 
 Hawks (Francis L.) . North Carolina Supr. Ct,, 
 1820-26. 4 vols. The first volume was partly 
 reported by RuflSn. 
 
 Hawley (John G.). See American Criminal 
 Reports. 
 
 Hay. Calcutta High Court, Original Side, 1868- 
 63. 2 vols. 
 
 Hay (G. ) & Marriott (J. ) . See Mariott (James). 
 
 Hay (Wm.). Decisions on the Law of Liability 
 In cases of accident and negligence, 1860. 1 
 vol. 
 
 Hayes (Edmund). Irish Exch., 1830-32. Ivol. 
 
 Hayes (Edmund) & Jones (Thomas). Mil 
 Exch., 1833-34. 1vol. 
 
 Haynes (John F.). The Student's Leading 
 Cases, 1878. 1 vol. 
 
 Haywood (John). North Carolina Superior 
 CtB.ofLaw and Eq., 1789-1806. 2 vols. Ten- 
 nessee Ct. of Error and App., 1816-18. 8 ToU. 
 The three latter volumes are uniformly nuni- 
 bered 3-5 in the same series with the first t»o, 
 and arc cited 3-5 Havwood. 
 
KEPORTS 
 
 557 
 
 REPORTS 
 
 Head (JohnW.)- Tennessee Supr. Ct., 1858-59. 
 
 a vols. 
 Heath (Solyman). See Maine. 
 Hecker (G. W.). Cases in England and the 
 
 U. S. in Warranty on the sale of Personal 
 
 Property, 1874. 1 vol. 
 Heiskell (Joseph B.). Supr. Ct. of Tennessee, 
 
 1870-73. 12 vols. 
 
 Vol. 1-4, 1870-71. Jos. B. Heiskell. 
 
 5, 1871. Prepared by W. B. Reese, Jr. 
 
 6, 1871. " " T. H. Malone. 
 
 7, 1871. " " K. McP. Smith. 
 
 8, containing Cases relating to Revenue, 
 
 1871-76. Jos. B. Heiskell. 
 
 9, 1873. Prepared by J. C. Malone. 
 
 10, 1872-73. " " T. H. Malone. 
 
 11, 1872. " " W. B. Reese, Jr. 
 
 12, 1873. " " R. McP. Smith. 
 Helm (A.). See Nevada. 
 
 Helm (A.) & Hittell (T. H.) . See Nevada. 
 Hemming (George W.) & Miller (Alexander 
 
 E.). HighCt. ofCh. before the Vice-Chan- 
 
 cellor, 1863-65. 3 vols. 
 Hempstead (Samuel H.). TT. S. Circ. Ct., 
 
 Ninth Circ, 1839-56. Supr. Ct. for the Terri- 
 tory of Arkansas, 1830-36. TJ. 8. Dist. Ct. for 
 
 the District of Arkansas, 1836-49. 1 vol. 
 Hening (William W.) &Munford (W.). Virginia 
 
 Ct. of App., 1806-09. 4 vols. 
 H6nry'(J.). Points in Manumission and Cases 
 
 of Contested Freedom, London, 1817. 1 vol. 
 Hepburn (H. P.). See California. 
 Hetley (Sir Thomas). C. P., 1637-31. 1vol. 
 
 Not marked by any peculiar skill, accuracy, 
 
 or information. Dougl. ix. 
 Hill (Nicholas, Jr.). New York Supr. Ct. for 
 
 Correction of Errors, 1841-44. 7 vols. 
 Hill (W. R.). South Carolina Ct. of App., 
 
 1833-37. 3 vols. 
 Hill (W. R.) South Carolina Ct. of App., Ch. 
 
 Cases, 1833-37. 2 vols. 
 Hill (N. Jr.) & Denio (H.). See Lalor. 
 Hillyer (Curtis J.). See California. 
 Hilton (Henry) . C. P. in New York City, 1855- 
 
 60. 2 vols. 
 
 Hobart (Sir Henry). C. P. and Ch., 1-23 Jac. 
 I. Hobart was a great judge ; and these re- 
 ports, which are by himself, have always been 
 esteemed. Wallace (Report, p. 163) cites 
 om Judge Jenkins a splendid tribute to his 
 character, 
 
 Hodges (WilUam). C. P., 1835-37. 3 vols. 
 Hoffman (Murray). New Tort Ch., 1839-40. 
 1 vol. 
 
 Hoffman (Ogden). Land Cases in the TI. S. 
 Dist. Ct. for the Northern Dist. of California, 
 1853-58. 1 vol. Reported by Numa Hubert. 
 
 Hogan (John). Pennsylvania State Trials. 1 
 vol. 
 
 Hogan (William). Rolls Ct. in Ireland, 1816- 
 84. 3 vols. 
 
 Hogue (David P.). See Florida. 
 
 Holeombe (James P.). Leading Cases upon 
 Commercial Law decided by the United States 
 Snpr. Ct. to 1847. 1 vol. 
 
 Holmes (Jabez S.). Circ. Ct. of the U. S. for 
 the First Circ. , 1870-75. 1 vol. 
 
 Holt. Reports tempore Holt. K. B., C. P., 
 Bxch., and Ch., 1688-1710. 1 vol., by Giles 
 Jacob. (Taken from a MS. of Thomas Far- 
 resley). In Rex vs. Bishop of London, Lee, 
 C J., said this was a book of no authority. 
 
 Holt (Francis Ludlow) . Nisi Prius Cas. in the 
 
 C. P. and the Northern Circ, 181.5-17. 1 vol. 
 Holt (William). Vice-Chancellor's Ct., 1845- 
 
 46. 3 vols. 
 Holt (W.). Admiralty Ct. Cas. on the Rule of 
 
 the Road, 1863-67. 1 vol. 
 Home (Clerk). Scotch Ct. of Sessions, 1735- 
 
 44. IvoL 
 Hooker (John). See Connecticut. 
 Hopkins (Samuel M. ) . New York Ch. , 1823-26. 
 
 1 vol. ' 
 
 Hopkinson (Francis) . Judgments in Admiralty 
 in Pennsylvania, principally in 1785. 1 vol. 
 This volume contains only 7 decisions, 6 of 
 which are to be found in the supplement to 
 Bee's Admiralty Reports. 
 
 Hopkinson (Francis). Judgments in the Ad- 
 miralty of Pennsylvania, 1779-88, may be 
 found in " Hopkinson's Works," vol. 3, pp. 1- 
 315. 
 
 Hopwood (C. H.) & Coltman (F. J.). Regis- 
 tration Cas. in the C. P., 1868-78. 2 vols. 
 
 Hopwood (C. H.) & Philbrick (F. A.). Regis- 
 tration Cas. in the C. P., 1867-68. 1 vol. 
 
 Horn (Henry) & Hurlstone (E. T.). Exch. 
 and Exch. Chamb., 1838-39. 2 vols. Vol. 2 
 contains only 88 pp. 
 
 Horrigan (L. B.) & Thompson (Seymour D.). 
 Select American Cases on the Law of Self- 
 Defenee, 1874. 1 vol. 
 
 Horwood (A. J.). See Tear Books, Edward I. 
 
 House of Lords Cases. 1847-66. 11 vols. 
 
 Vol. 1-2, 1847-50. Charles Clark & W. 
 Finnelly. 
 3-11, 1850-66. Charles Clark. 
 See Clark and Finnelly. 
 
 Houston (John W.). Ct. of Oyer and Terminer 
 and Ct. of General Sessions of the Peace and 
 Jail Delivery, Delaware, 1856-79. 1 vol. 
 
 Houston (John W.). Ct. of Errors and App. 
 and Supr. Ct. of Delaware, 18.55-74. 4 vols. 
 
 Hovenden (John E.). Notes to Vesey, Junior, 
 embraced in Sumner's edition. 
 
 Howard (Benjamin C). U. S. Supr. Ct., 1843- 
 60. 24 vols. 
 
 Howard (G. E.). Popery Cases in Ireland, 
 1720-73. 1vol. 
 
 Howard (Nathan, Jr.). New York Ct. of App., 
 1847-48. 1 vol. 
 
 Howard (Nathan, Jr.). Practice Cases in the 
 New York Superior Ct. and Ct. of App., 1844- 
 82. 62 vols. Last 11 vols, by R. M. Stover. 
 
 Howard (Volney E.). See Mississippi. 
 
 Howell (Thomas B.) & (Thomas J.). State 
 Trials and Proceedings for High Treason and 
 other Crimes and Misdemeanors, 1163-1820. 
 33 vols., and Index. 
 Vol. 1-21, 1163-1783. T. B. Howell. 
 22-33, ' 1783-1820. T. J. Howell. 
 This is an immense collection of cases, brought 
 together by hunting through every collection in 
 England, and, therefore, having very different 
 degrees of merit. For a full account of Its 
 character and value, see Wallace's Report. 64. 
 
 Howison (Robert R.). Criminal Trials in the 
 Circ, State, and U. S. Cts. held in Richmond, 
 Va., 1850-51. 
 
 Hubbard (Wales). See Maine. 
 Hubert (Numa) . See Hoifman (Ogden) . 
 Hudson (William E.) & Brooke (John). K. B. 
 & Exch. in Ireland, 1827-31. 2 vols. 
 
REPORTS 
 
 558 
 
 REPORTS 
 
 Hughes (Jamee). Kentucky Supr. Ct., 1785- 
 1801. 1 vol. 
 
 Hughes (Robert W.). U. S. Circ. Cts., Fourth 
 Circ., 1874-80. 3 vols. Volume 1 also con- 
 tains selected Cases in Admiralty and Bank- 
 ruptcy decided in the Dist. Cts. of that Circ. 
 
 Hume (D.). Scotch Ct. of Sess. Cases, 1781- 
 1822. 1 vol. 
 
 Humphreys (WestH.). Supr. Ct. of Tennessee, 
 1839-51. 11 vols. 
 
 Hun (Marcus). See New York Supr. Ct. 
 
 Hunt (W.). K. B., Annuity Cases, 1794. 
 
 Huntington (S. H.). See Nott (C. C.) & Hun- 
 tington. 
 
 Hurlstone (E. T.) & Coltman (F. J.). Exch. 
 and Exch. Cham., 1762-66. 4 vols. 
 
 Hurlstone (E. T.) & Gordon (J.). See Exch. 
 
 Hurlstone (E. T.) & Norman (J. P.). Exch. 
 and Exch. Cham., 1856-63. 7 vols. 
 
 Hurlstone (E. T.) & Walmsley. Exch. and 
 Exch. Cham., 1840-41. 1 vol. of 160 pp. 
 
 Hutton (Sir Kichard). C. P., 1613-38. 1vol. 
 This book, says Mr. Wallace, seems to belong 
 to that class of literary productions which do 
 not obtain notoriety, enough to be abused. 
 Wallace, Report. 346. 
 
 Hyde. Calcutta High Ct., Original Side, 1864r- 
 65. 3 vols. 
 
 Hyde (Edward). 
 
 Ct., 1791-1816. 
 
 Notes of Cases, Calcutta Supr. 
 1vol. 
 
 Idaho. Supreme Court, 1866-67. 1 vol. by John 
 
 Cummins. (Reprinted in 1 Idaho N. S.) 
 Idaho. New Series. Supreme Court, 1866-80. 
 
 1 vol. by H. E. Prickett. 
 Illinois. Supreme Court, 1819-83. 103 vols. 
 Vol. 1, 1819-30. Sidney Breeee. 
 
 2-5, 1833-43. J. Young Scammon. 
 6-10, 1844-49. Charles Gilman. 
 11-30, 1849-63. E. Peck. 
 31-103, 1863-83. Norman L. Freeman. 
 See Bradwell (J. B.) ; Foreman. 
 Illinois Synoptical Reporter. Springfield, 1879. 
 
 1vol. 
 Indian Appeals. See Law Reports. 
 Indian Jurist. Calcutta High Ct., Original Side, 
 1860-63. 1 vol. 
 
 Indian Jurist. New Series. Same Court, 1866- 
 67. 3 vole. 
 
 Indian Law Reports. This series begins January 
 1, 1876, is published monthly, and comprises 
 Calcutta, Madras, Bombay, and Northwestern 
 Provinces ; each province is bound separately. 
 Indiana. Supreme Court, 1847-81. 77 vols. 
 Vol. 1,3, 1847-51. Horace E. Carter. 
 3-7, 1851-56. Albert G. Porter. 
 8-14, 1856-60. Gordon Tanner. 
 15-17, 1860-61. Benjamin Harrison, 
 18-33, 1863-64. Michael C. Kerr. 
 2.3-29, 1864-68. Benjamin Harrison. 
 30-53, 1869-76. James B. Black. 
 54-70, 1876-80. Augustus N. Martin. 
 71-77, 1880-81. Francis M. Dice. 
 See Blackford ; Smith (T. L.) ; Wilson (0. M.). 
 Indiana Legal Register. Lafayette, Ind., 1871- 
 73, 3 numbers. 
 
 Insurance Law Journal. New York & St. Louis, 
 1871-82. 11 vols. 
 
 Insurance Monitor. New York, 1853-81. 38 
 vols. Monthly. 
 
 Insurance Reporter. See Legal and Insurance 
 Reporter. 
 
 Internal Revenue Record and Customs Jonmal 
 New York, 1865-83. 38 vols. ™''<'°™al. 
 
 Iowa. Supreme Court, 1853-1881, 55 vnle 
 Vol, 1-8, 1853-59. W. Penn Clarke 
 9-31, 1859-66. Thomas F. Withrow 
 22-37, 1867-73. Edward H. Stllea 
 38-55, 1873-81. John S. Runiiells 
 See Bradford ; Morris ; Greene (6.). 
 
 Iredell (James). North Carolina Supr Ct. Tn 
 Cases, 1840-52. 8 vols. ' '• 
 
 Iredell (James) . North Carolina Supr. Ct. Liw 
 Cases, 1840-52. 13 vols. ' 
 
 Irish Chancery Reports. High Court of Ch anfl 
 Rolls Court, 1850-66. 17 vols, 
 
 Irish Circuit Reports. See Cases on the six Clr- 
 cults. 
 
 Irish Common Law Reports. Q. B., C. P., Exch. 
 
 Exch. Chamber, and Court of Criminal Ann ' 
 
 1850-66. 17 vols. '''"' 
 
 Irish Equity Reports. High Court of Ch. 
 
 Rolls Court, and Eq. Exch., 1838-50. IS vols! 
 Irish Jurist. All the Courts, 1849-66. 18 vols. 
 Irish Law Reports. Q. B,, C, P. and Exch. of 
 
 Pleas, 1838-50. 13 vols. 
 Irish Law Recorder. AH the Courts, 1827-31. 4 
 
 vols. 
 
 Irish Law Recorder. New Series. All the Conrte, 
 1833-38. 6 vols. 
 
 Irish Law Times and Solicitor's Journal. Dub- 
 lin, 1867-83. 16 vols. 
 
 Irish Reports. Com. Law Series. Superior 
 
 Courts, 1867-77. 11 vols. 
 Irish Reports. Eq. Series. Superior Courts, 
 
 1867-77. 11 vols. 
 Irish Reports. Registration Appeals, 1868-73, 
 
 1 vol. of 174 pp. ; no title or index. 
 Irish Reports. See Law Reports (Ireland). 
 Irish Term Reports. See Ridgeway, Lapp & 
 
 Schoales. 
 Irvine (Alexander F.). High Court and CiK. 
 
 Ct. of Justiciary, Scotland, 1851-67. 5 vols. 
 
 Jackson (Henry). See Georgia. 
 
 Jackson & Lumpkin. See Georgia. 
 
 Jackson (A. M.) & Jackson (A. M., Jr.), Texai 
 Ct. of App. Crim. Cases. See Texas. 
 
 Jacob (Edward). High Court of Ch., time of 
 Eldon, 1831-33. 1 vol. 
 
 Jacob (Edward) & Walker (John). High 
 Court of Ch., time of Eldon, 1819-21. 2 vols. 
 
 Jacob (Giles). See Holt, Repts. temp. 
 
 James (Alexander). Sup. Ct. of Nova ScoHii, 
 185,3-55. 1vol. 
 
 Jardine (David). Criminal Trials, London, 
 1833-35. 3 vols, 
 
 Jebb (Robert) . Crown Cases reserved and de- 
 cided by the Twelve Judges of Ireland, 1822- 
 40. 1 vol. 
 
 Jebb (Robert) & Bourke (Richard). Q. B. in 
 Ireland, 1841-43. 1vol. 
 
 Jebb (Robert) & Symes (Arthur R. ) . Q. B. and 
 Exch. in Ireland, 1838-41. 2 vols. 
 
 Jefferson (Thomas). Virginia General Court, 
 1730-40, 1768-72, 1 vol. 
 
 Jenkins (David). Exchequer, 1230-1623. 1vol. 
 Eight centuries, or eight hundred caseB. o^ 
 an interesting account of Jenkins, who WM » 
 Welsh judge, by Mr. D'Israeli, given m w- 
 lace's Rep6ri;. 71. The reports of Jenkins yw 
 prepared In prison, where Jenkins was put m 
 
REPORTS 
 
 559 
 
 REPORTS 
 
 his loyalty to Charles I. and kept for fifteen 
 
 years. The book is of excellent authority. 
 Jennisou (Wm.). See Michigan. 
 Johnson (Bradley T.). Decisions by Ch. J. 
 
 Chase in the U. S. Cir. Ct., 4th Cir., 1865-69. 
 
 1vol. 
 Johnson (Henry K. V.). English High Ct. of 
 
 Ch., 18.58-60. 1 vol. 
 Johnson (H. R. V.) & Hemming (George W.). 
 
 English High Ct. of Ch., 1859-62. 2 vols. 
 Johnson ( J. ) . See Maryland Ch . Decisions. 
 Johnson (William). Cases in the New York Ct. 
 
 of Errors, 1799-1803. 3 vols. 
 Johnson (William). New York Ch., 1814-23. 7 
 
 vols. 
 Johnson (William). New York Supr. Ct., Ct. 
 
 for Correction of Errors and Tr. of Impeach- 
 ments, 1806-23. 20 vols. 
 Jones (Edward C). See Upper Canada Com- 
 mon Pleas. 
 Jones (Hamilton C). North Carolina Supr.Ct., 
 
 Eq. Cases, 1853-63. 6 vols. 
 Jones (Hamilton C). North Carolina Supr. Ct., 
 
 Law Cases, 1853-63. 8 vols. 
 Jooes (Horatio M. ) . See Missouri. 
 Jones (Horatio M.), Barclay (D. K.) & Whlttel- 
 
 sey (C. C). See Missouri. 
 Jones (J. P.). See Pennsylvania. 
 Jones (Samuel) & Spencer (James C). See 
 
 New York Superior Ct. 
 Jones (T. G.). See Alabama. 
 Jones (Sir Thomas). K. B. and C. P., Special 
 
 Oases, in the Keign of Car. II. , cited as 2 Jones. 
 Jones (Thomas). Exch, in Ireland, 1834-38. 3 
 
 vols. 
 Jones (Thomas) & Carey. Irish Exch., 1838-39. 
 
 1 vol. of 428 pp. ; no title or index. 
 Jones (Thomas) & Latouche (Edmund D.). 
 
 Irish Ch., time of Sugden, 1844-46. 3 vols. 
 Jones (Sir William). K. B. and C. P., House 
 
 of Lords, and Exch. Chamb., 1620-41. It is a 
 
 book of good authority. It is sometimes cited 
 
 as 1st Jones, to distinguish it from Sir Thomas 
 
 Jones, which is then correspondingly cited as 
 
 2d Jones. 
 Journal of Jurisprudence. See Hall (John E.) 
 Journal of Jurisprudence and Scottish Law 
 
 Magazine, 1857-82. 26 vols. 
 Journal of Law. Phila., 1830-31. 24 numbers 
 Judicial Repository. New York Crim. Cts. , 1818- 
 
 19. Monthly ; only six numbers, containing 
 
 338 pp. published. 
 Jurisprudent (The). Boston, 1830-31. Weekly; 
 
 52 numbers, containing 416 pp. 
 Jurist. Reports of all the Courts, 1837-54. 18 
 
 vols, in 31. 
 Jurist. New Series. Reports of all the Cts., 
 
 1855-67. 12 vols, in 24. 
 Jurist or Law and Equity Reporter. New York, 
 
 1839. 1vol. 
 
 Jurist, or Quarterly Journal of Jurisprudence 
 and Legislation. London, 1827-33. 3 vols, 
 and 1 number. 
 
 Jurist. See American Jurist, Irish Jurist, and 
 Scottish Jurist. 
 
 Justice of the Peace, and County, Borough, Poor 
 Law Union, and Parish Law Recorder. Lon- 
 don, 1837-71. 35 vols. 
 
 Karnes (Henry Home of). Ct. of Sess., Scotch, 
 Remarkable Cases, 1716-68. 2 vols. 
 
 Kames (Henry Home of). Ct. of Sees., Scotch, 
 Select Cases, 1752-68. 1 vol., sometimes cited 
 as 3 Kames. 
 
 Kames & Woodhouslee's Dictionary. Scotch Ct. 
 of Sess., 1540-1804. 5 vols. 
 
 Kansas. Supreme Court, 1862-82. 26 vols. 
 Vol. 1-5, 1862-70. Elliot V. Banks. 
 6-20, 1870-78. W. C. Webb. 
 21-26, 1878-82. A. M. F. Randolph. 
 See McCahon (James). 
 
 Kay (Edward E.). English Ch., 1853-54. 1vol. 
 
 Kay (E. E.) & Johnson (Henry R. V.)., Eng- 
 lish High Court of Ch., 1 8.54^58. 4 vols. 
 
 Keane (D. D.) & Grant (James). English Regis- 
 tration Cases, 1854-62. 1 vol. 
 
 Keble (Joseph). K. B., 12-20 Car. 11. 3 vols., 
 an inaccurate reporter, yet a tolerable historian 
 of the law ; 3 Wils. 330. Not a satisfactory re- 
 porter, but a pretty good register, and more 
 esteemed of late, perhaps, than formerly. 
 Wallace, Report. 315. 
 
 Keen (Benjamin). Rolls Ct., 1835-38. 2 vols. 
 
 Keilwey (Robert). K. B. and C. P. It also 
 contains some cases incerti temporis, and some 
 temp. Edw. III. The volume, having been 
 edited by John Croke, is sometimes cited as 
 Croke's Reports. See Wallace, Report. 119. 
 Kelly (James M.). See Georgia. 
 Kelly (J. M.) & Cobb (T. B. R.). See Georgia. 
 Kelyng (Sir John). K. B., 1662-69. 1 vol. 
 Kelynge (Sir William). K. B. and Ch., 1730-32. 
 
 1vol. 
 Kenan (Thos. S.). See North Carolina. 
 Kentucky. Ct. of App. and Supr. Ct., 1785- 
 1880. 78 vols. 
 Vol. 1, 178.5-1801. James Hughes. 
 
 3, 1801-05. See Sneed. Ken- 
 
 tucky Decisions. 
 3, 180.5-08. M. D. Hardin. 
 
 4-7, 1808-17. G. M. Bibb. 
 8-10, 1817-21. A. K. Marshall. 
 11, 179.5-1831. Wm. Littell, 
 
 12-16, 1823-24. Wm. Littell. 
 17-23, 18':4r-ZS. T. B. Monroe. 
 24-30, 1829-32. J. J. Marshall. 
 31-39, 1833^fl. J. G. Dana. 
 40-57, 1810-58. Ben. Monroe. 
 58-61, 18:8-63. J. P. Metcalfe. 
 62-63, 18'53-66. Alvin Duvall. 
 64-77, 1836-79. W. P. D. Bush. 
 78, 1879-80. John Rodman. 
 
 The last report is cited as 78 Kentucky, the 
 others, by the name of the reporter. See 
 Kentucky Decisions. 
 
 Kentucky Decisions. Decisions of the Ct. of 
 
 App. of Kentucky, 1 8C1-05. 1 vol. by Sneed. 
 
 (Sometimes cited as " Printed Decisions.") 
 Kentucky Law Reporter. Frankfort, Ky., 1880- 
 
 82. 8 vols. Monthly. 
 Kenyon (Lloyd). K. B., Ch., 1753-60. 3 vols. 
 Kernan (Francis). See New York Ct. of App. 
 Kerr (David S.). New Brunswick Supr. Ct., 
 
 1840-48. 3 vols. 
 Kerr (Michael C). See Indiana. 
 Keyes (E. W.). New York Ct. of App., 1863- 
 
 68. 4 vols. (Sometimes cited 38-41 N. Y.) 
 Kilkerran (Sir James Ferguson of). Scotch Ct. 
 
 of Sess., 1738-53. 1 vol. (Sometimes cited 
 
 as Ferguson. ) 
 King. See cases temp. King. 
 King (William W.). See Louisiana Annual. 
 Bang's Bench. See Upper Canada, King's Bench, 
 
REPORTS 
 
 560 
 
 REPORTS 
 
 Klrby (Ephraim). Connecticut Supr. Ct. and 
 Ct. of Errors, 1785-88. 1 vol. 
 
 Knapp (Jerome W.). Privy Council, 1839-36. 
 3 vols. Third volume by Knapp & Moore. 
 
 Knapp (J. W.) & Ombler (Edward). Parlia- 
 mentary Election Cases, 18i4r-37. 1 vol. 
 
 Knowles (John P.). See Khode Island. 
 
 La Revue, etc. See Revue. 
 
 La Themis, Montreal, 1880-81. 1 vol. 
 
 Labatt (H. J.). California District Ots. Re- 
 ports (State Cts.), 1857-58. 2 vols. Vol. 2 
 contains only 256 pages. 
 
 Lackavfanna Legal Record, Scranton, Penna. 
 Sept. 5, 1878, to Aug. 29, 1879. 1 vol. 
 Weekly. (Superseded by the Common Pleas 
 Reporter. ) 
 
 Lalor (T. M.). New York Supr. Ct. and Ct. of 
 Errors. Suppl. to Hill & Denio, 1843-44. 1 
 vol. 
 
 Lancaster Bar, Lancaster, Penna., 1869-81. 13 
 vols. Weekly. 
 
 Lane (Richard). Exch. Reports, 1605-13. 1 
 vol. 
 
 Langdell (C. C). Cases in Eq. PI. selected 
 with special reference to the subject of Dis- 
 covery, 1878. 1vol. 
 
 Langdell (C. C.) Cases on the Law of Con- 
 tracts, 1871. 1 vol. Same, 1873. 3 vols. 
 
 Langdell (C. C). Cases on Sales of Personal 
 Property, 1873. 1 vol. 
 
 Lansing (Abr.). See New York Supreme 
 Court. 
 
 Lansing (John, Jr.). New York Ch., 1834-26. 
 1 vol., IS pp. (Contains but four cases, in 
 each of which the Reporter was a party.) 
 
 Lapp (W.). See Irish Term Reports. 
 
 Latch (John). King's Bench, 1635-38. 1 vol. 
 
 Lathrop (John). See Massachusetts Law and 
 Equity Reporter, New York & Boston, 1876- 
 77. 4 vols. Weekly. (Succeeded by the Re- 
 porter.) 
 
 Lauder (John). See Fountainhall. 
 Law Bulletin, San Francisco, 1870-71. 6 Nos. 
 Law Chronicle, London, 1833-35. 4 vols. 
 Law Cases, Will. I. to Rich. I. See Bigelow, 
 M. M. 
 
 Law Chronicle or Journal of Jurisprudence. 
 Edinburgh, 1829-33. 4 vols. 
 
 Law and Equity Reporter. U. S. and State Cts., 
 New York, 187t-77. 4 vols. 
 
 Law Intelligencer. See United States Law In- 
 telligencer. 
 
 Law Journal, London, 1866-80. 14 vols. 
 
 Law Journal Reports, London, 1833-31. 9 vols. 
 Often cited as " Law Journal. Old Series." 
 
 La,vr Journal Reports, New Series, London, 
 1831-81. 50 volumes. Published monthly. 
 " Containing all decided Cases of value to the 
 profession." The Reports from different 
 Courts are grouped and paged, so as to make, 
 in each year, a Ch. vol. (Including Bank- 
 ruptcy), a Q. B., C. P., Exch. vol., a Probate, 
 Divorce, & Admiralty vol., a Privy Council 
 volume, a volume of Public Statutes, and a 
 Magistrates Cases Volume. 
 
 Law Journal. See Morgan & Williams. 
 
 Law Journal. See Smith (J. P.). 
 
 Law Magazine or Quarterly Review of Juris- 
 prudence, Loudon, 1828-44. 31 vols. 
 
 Law Magazine or Quarterly Review of JuriBnni 
 dence, 2d Ser., London, 1844-55. 23 vole 
 
 Law Magazine and Law Review, or Quarterlv 
 Journal of Jurisprudence, 3d Ser.; Londnn 
 1856-73. 32 vols. ' °''' 
 
 Law Magazine and Review, New SeriM 
 (Monthly), London, 1873-75. 4 vole. ' 
 
 Law Magazine and Review and Quarterly Digest 
 of all reported cases, London, 4th Ser. 1875- 
 81. 6 vols. ' 
 
 Law Magazine. See Livingston (John). 
 
 Law News, St. Louis, Mo., 1873-73. 2 yolj 
 Vol. 1, weekly, and vol. 2, monthly. 
 
 Law Recorder. See Irish Law Recorder. 
 
 Law Reporter, London, 1831-33. 2 vole. 
 
 Jjaw Reporter, Boston, 1739-64. 27 vols 
 Monthly. Only 434 pages of vol. 27 werepubl 
 lished. A New Series was commeoced with 
 vol. 11, and that, and subsequent volumes 
 are sometimes cited as N. S., and sometimes 
 as " Monthly Law Reporter." 
 
 Law Reporter, Toronto, 1854. 1 vol. 
 
 Law Reports. The Law Reports in all tie 
 Courts are published in three series under the 
 authority of the " Council of Law Reporting," 
 commencing Mich. Term, 1865. 
 The Appellate Series. 
 
 1. Engl, and Irish App. Cas., 186.5-75. Tvols. 
 
 2. Scotch and Div. App. Cas., 1866-75. 2 vols. 
 
 3. Privy Council App. Cas., 1865-75. 6 vols. 
 
 The Common Law Series. 
 
 1. Q. B. Cas., 186.1-75. 10 vols. 
 
 2. C. P. Cas., 1865-75. 10 vols. 
 
 3. Exch. Cases, 1865-75. 10 vole. 
 
 4. Probate and Divorce Cas., 1865-75. 3 vols. 
 6. Admiralty and Eccl. Cas. , 1866-76. 4 vols. 
 6. Crown Cases Reserved, 1866-76. 2 vols. 
 
 The Equity Series. 
 
 1. Ch. App. Cas., 1865-76. 10 vols. 
 
 2. Eq. Cas., 1866-75. 20 vols. 
 
 Law Reports, New Issue commencing with the 
 year 1876. 
 
 First Series. 
 Ch. Division, 1876-83. 19 vols. 
 
 Second Series. 
 
 Q. B. Division, 1876-83. 8 vols. 
 
 C. P. Division, 1876-80. B vols. 
 
 Exch. Division, 1876-80. 6 vols. 
 
 . Probate Division, 1876-82. 7 vols. 
 
 (Probate Division includes Divorce, Admirilly, 
 
 and Ecclesiastical cases. ) 
 Commencing with vol. 6, the Queen's Bench 
 Division Reports contain the cases in the 
 Common Pleas and Exchequer Divieions. 
 Third Series. 
 App. Cases, 1876-82. 7 vols. 
 The Council also issue, in connection with the 
 
 Reports— 
 The General Public Statutes, 1866-81. W 
 
 vols. 
 Indian Appeals. Cases in the Privy Council 
 on Appeal from the East Indies. 1873-82, 
 9 vols. 
 
 Law Reports (Ireland). All the Conrto. Pub- 
 lished under the authority of the " Council ol 
 Law Reporting in Ireland," 1878-82. 8 vote. 
 
 Law Repository. See North Carolina Term. 
 
 Law Review and Quarterly Journal. Lonjoj, 
 1844^65. 23 vols. (Then united with the UW 
 Magazine.) 
 
 Law Review. Albany, July, 1866. Onenumher 
 of 128 pp. 
 
 Law Times (The). London, a folio weeily 
 legal newspaper, containing very flill repona 
 of cases from all the courts. In the first w 
 
REPORTS 
 
 861 
 
 REPORTS 
 
 volumes, 1843-51, these were intermingled 
 with such other matter as is usually found in 
 a legal newspaper. From vols. 17 to 34 (1851- 
 
 60) there is a volume of newspaper and one of 
 
 Reports bound together ; vols. 3.5-7 (1860-82) 
 
 newspaper with County Court and Nisi Prius 
 
 cases only. The reports being published from 
 
 1859 on in the Law Times Reports, New Series, 
 
 which see. 1843-82. 72 vols. 
 Law Times Reports. New Series. Reports of 
 
 Cases in all the Courts, 1869-82. 46 vols. 
 Law Times. Soranton, Pa. 1879-81. 3 vols. 
 Law Weekly. New Tork, 1869. One number. 
 Lawrence (Wra.). See Ohio. 
 Lawyer's Magazine. London, 1761-62. 1 vol. 
 Lawyer's and Magistrate's Magazine. London, 
 
 1790-94. 6 vols. 
 Le Marehant (Denis). Gardner Peerage Case 
 
 in House of Lords, 5 Geo. IV., with Appendix 
 
 containing Legitimacy Cases. 
 Lea (B. J.). Tennessee Supr. Ct., 1878-«1. 7 
 
 vols. 
 Leach (Thomas). Cases in Crown Law detei^ 
 
 mined by the Twelve Judges, 1730-1800. 2 
 
 vols. 
 Lee (Sir George). Arches and Prerogative 
 
 Courts of Canterbury, and High Court of 
 
 Delegates, 1753-6S. 2 vols. Containing, also, 
 
 a few cases between 1724 and 1733. By Jos. 
 
 Fhillimore. 
 Lee (H.). See California. 
 Lee (Thos.). Cases temp. Hardwicke, English 
 
 K. B., 1733-38. 1 vol. (Sometimes cited 
 
 " Annaly's Reports.") 
 Lefroy (Thomas E. P.). See Railway & Canal 
 
 Gases. 
 Legal Adviser. Chicago, 111., 1880-82. 3 vols 
 
 Weekly. 
 Legal and Insurance Reporter. Philadelphia, 
 
 1869-81. 23 vols. Weekly. 
 Legal Chronicle. Pottsville, Pa., 1873-76. 3 
 
 vols. ; only 72 pp. of vol. 3 were published, 
 Legal Chronicle Reports. Cases decided in the 
 
 various Pennsylvania Courts, 1873-75. 2 vols. 
 
 (originally reported in the Legal Chronicle ; 
 
 vol. 1 contains the cases of 1st Chronicle, vol. 
 
 2, of 2d and 3d Chronicle) . By Sol Foster, Jr. ; 
 
 sometimes cited as "Foster's Repts." 
 Legal Examiner. New Tork, 1850. 1 No. 
 Legal Exchange. Des Moines, Iowa. 1873. 1 
 
 vol. Monthly. 
 Legal Gazette. Philadelphia, 1869-76. 8 vols. 
 
 Weekly. Vol. 8 contains only 168 pp. 
 Legal Gazette Reports. Cases originally reported 
 
 in the Legal Gazette, vols. 1, 2, and 3, and not 
 
 reported in the regular series of Reports. 1 vol. 
 
 by John H. Campbell, sometimes cited as 
 
 "Campbell's Reports." 
 Legal Intelligencer. Philadelphia, 1843-82. 
 
 vole. Weekly. The cases here reported are 
 
 printed in the " Philadelphia Reports," which 
 
 see. 
 
 Legal News. Montreal, 1878-82. 6 vols. Weekly. 
 
 Legal Observer. London, 1830-56. 62 vols., 
 succeeded by the Solicitor's Journal and Re- 
 porter. 
 
 Legal Observer. New Tork. See New Tork 
 
 Legal Observer. 
 Legal Opinion. Harrisburg, Pa., 1870-73. 6 
 
 vols. 
 
 Legal Remembrancer. Calcutta High Ct., Orig. 
 Side, 1864. 1 vol. 
 YOL. 11 36 
 
 Legal Reporter. Dublin, 1840-42. 2 vols. 
 Legal Eeporter. Nashville, Tenn. 
 Legal Review. London, 1812-13. 
 Legal Tender Cases of 1871 before the Supreme 
 Court of the United States. 1 vol. 
 
 Leigh. See Ley. 
 
 Leigh (Benjamin W.). Virginia Ct. of App., 
 1829-41. 12 vols. 
 
 Leigh (E. C.) & Cave (L. W.). Crown Cas. 
 Reserved, 1861-65. 1 vol. 
 
 Leonard (William). K. B., C. P., and Exeh., 
 1540-1615. A very good and much-esteemed 
 reporter ; one of the best, indeed, of the old 
 books. See Wallace, Report. 142, citing Sug- 
 den. Lord Nottingham, and Sir George Treby. 
 
 Lester (G. N. ) . See Georgia. 
 
 Leviuz (Sir Creswell). K. B., 1660-97. 3 vols. 
 
 Lewiu (Sir Gregory A.). Crown Cases on 
 Northern Cir., 1822-38. 2 vols. 
 
 Lewis (J. Vance) . Leading Cases on the Pub- 
 lic Land Laws of the U. S. , 1879. 1 vol. 
 
 Ley (Sir James). King's Bench, Common 
 Pleas, Exchequer, and Court of Wards, and 
 Star Chamber, 1608-29. 1 vol. The book is 
 seldom cited. Wallace, Report. 241. It is 
 sometimes cited as Leigh ; id. 244. 
 
 Life and Accident Insurance Reports. See 
 Bigelow (M. M.). 
 
 Lilly (John) . Cases in Assize for Offices, Nui- 
 sances, Lands, and Tenements, 1688-93. A 
 scarce and worthless book. 
 
 Littell (William). Kentucky Ct. of App., 
 1822-24. 5 vols. 
 
 Littell (William). Kentucky Ct. of App., 
 Select Cases, 1795-1821. 1 vol. 
 
 Little Brooke. See Brooke (Robert) . 
 
 Littleton (Edward). C. P. and Exch., 1626-32. 
 1vol. 
 
 Livingston (Edward). Mayor's Court Re- 
 ports, New Tork City, 1802. 1 vol. 
 
 Livingston's Monthly Law Magazine, New Tork, 
 1853-56. 4 vols, by John Livingston. Only 
 96 pp. of vol. 4 were published. 
 
 Lizars (W. H.). Scotch Exchequer Cases. 
 
 Lloyd (B. C.) & Goold (Francis). Irish Ch., 
 times of Sugden and Plunket, 1834-38. 2 
 vols. 
 
 Lloyd (B. C.) & Welsby (W. N.). K. B.,1829- 
 
 30. 1 vol. containing some mercantile cases. 
 
 Only 368 pp., without title-page or index, pub- 
 lished. 
 Local Courts and Municipal Gazette, Toronto, 
 
 Canada, 1865-72. 8 vols. Monthly. 
 Lockwood (Ralph). New Tork Ct. of Errors, 
 
 Reversed Cases, 1799-1847. 1 vol. 
 Lofft (Capel). K. B., C. P., and Ch., 1772-74. 
 
 1 vol. Not a very highly esteemed reporter, 
 
 but the only volume giving an account of the 
 
 great case of the negro Somerset. 
 Lomas (John). City Hall Reporter, New Tork, 
 
 1833. 1 vol. 
 Longfleld (Robert) & Townsend (John F.). 
 
 Irish Exch., 1841-42. 1 vol. 
 Louisiana Supr. Ct., 1830-41. 19vols. 
 
 VoL 1-6, 1830-34. Branch W. Miller. 
 6-19, 1834r-41. Thomas Curry. 
 
 See Martin (F. X.), Robinson (M. M.), 
 McGloin (P.). 
 Louisiana Annual. Supr. Ct., 1846-81. 33 
 
 vols. 
 
 Vol. 1-4, 1846-49. Merritt M. Robinson. 
 
REPORTS 
 
 662 
 
 REPORTS 
 
 Vol. 5-6, 1850-51. William W. King. 
 
 7-11, 185a-57. William M. Kandolph. 
 ia-15, 1858-60. A. N. Ogdeu. 
 16-18, 1861-66. S. F. Glen. 
 19-24, 1867-72. J. Hawliins. 
 25-28, 1873-76, Charles Gayarre. 
 29-31, 1877-79. Percy Roberts. 
 32-33, 1880-81. Henry Denis. 
 Louisiana Law Journal, New Orleans. Dec. 
 
 1876, May -1877. 6 Nos. Monthly. 
 Louisiana Term. See Martin (F. X.). 
 Lowell (John). Decisions in the United States 
 
 Courts for the District of Massachusetts, 
 
 1865-77. 2 vols. 
 Lower Canada Jurist, Montreal, 1857-81. 26 
 
 vols. Monthly. 
 Lower Canada Law Journal, 1865-68. 4 vols. 
 
 Quarterly. 
 Lower Canada Keports, 1851-67. 17 vols. 
 Lowndes (John James) & Maxwell (Peter B.). 
 
 Bail Court, 1852-54. 1 vol. of 222 pp. 
 Lowndes (John J.), Maxwell (Peter B.),& 
 
 Pollock (CharlesE.). Q. B., C. P., andExch. 
 
 Practice Cases, 185ft-51. 2 vols. 
 Lucas (Robert). K. B. and Ch., chiefly during 
 
 the time of Macclesfield, 9-13 Anne. 1 vol. 
 
 See Modern. 
 Ludden (Timothy). See Maine. 
 Luders (Alexander). Contested Elections in 
 
 the House of Commons, 1785-87. 3 vols. 
 Lumley (W. G.). English Poor-Law Cases, 
 
 1834rS9. 1vol. 
 Lushington (Vernon). High Court of Adm. 
 
 and Privy Council on App., 1859-62. 1 vol. 
 Lutwyche (Sir Edward). Common Bench, 
 
 1683-1704. 2 vols. 
 Lutwyche (Alfred J. P.). Registration Appeal 
 
 Cases in the C. P.on appeal from the deci- 
 sions of the Revising Barristers. 1843-53. 2 
 
 vols. 
 Luzerne Law Times, Scranton, Penna., 1873, 
 
 77. 5 vols. 
 Luzerne Legal Observer, Carbondale, Fenna., 
 
 1860-64. 4 vols. Vol. 4 is incomplete. 
 Luzerne Legal Register, Wilkes-Barre, Fenna., 
 
 1872-81. 11 vols 
 Lyne (James). See Wallis (John). 
 
 M'Cleland (T.). Exch. and Exch. Chamb., 
 Law and Eq., 1824. 1 vol. 
 
 M'Cleland (T.) & Tounge (E.). Exch. and 
 Exch. Chamb., 1826. 1 vol. 
 
 M'Crary (G. W.) . U. S. Circ. Ct., Eighth Clrc., 
 1880-81. 2 vols. 
 
 M'. See Mc. 
 
 MacArthur (Arthur). Supr. Ct. Dist. of Colum- 
 bia, 1873-79. 3 vols. 
 
 MacFarlane (Robert). Jury Court, Scotch, 
 1838-39. 1vol. 
 
 Maclaurin (John). Scotch High Court of Jus- 
 ticiary, and other superior courts. Grim. Cas., 
 1670-1773. 1vol. 
 
 Maclean (Charles H.) & Robinson (George). 
 House of Lords on App. and Writs of Error, 
 1839. 1 vol. 
 
 Macnaghten (Steuart) & Gordon (Alexander). 
 High Ct. of Ch., times of Cottenham and 
 Truro, 1849-51. 3 vols, 
 
 Macnaghten (W. H.). Sudder Nizamut Adaw- 
 lut, India, 1808-40. 5 vols. 
 
 Maonaghten's Select Cases. See Cases tmi) 
 King. ™" 
 
 Macpherson, Lee, & Bell. See Session Cases. 
 
 Macqueen (John F.). House of Lords on Am 
 
 and Writs of Error from Scotland, 1847-S?' 
 
 4 vols. 
 
 Macrae (D. C.) & Hertslet (C, J. B.). En?H«ii 
 Insolvency Cases, 1847-6i. 1vol. 
 
 Macrory (E.). English Patent Cases, 1852-88 
 Only 266 pp. published. 
 
 Maddock (Henry). Vice-Chancellor's Ct.. 1815- 
 22. 6 vols. ' 
 
 Maddock (H.) & Geldart (T. C). See Mad- 
 dock 6th. 
 
 Madras High Court Reports. India, 1862-76. 8 
 vols. 
 
 Madras Jurist. India, 1866-76. 11 vols, 
 Madras Decrees in Appeal, 180.5-26. 1 vol, 
 Madras Nizamut Adawlut Cases. 2 vols. 
 Madras Sudder Adawlut Decisions, 1819-51,. 1 
 vol. 
 
 Madras Sudder Dewanny Reports of Select Cases, 
 chiefly on points of Hindu or Mohammedan 
 Law, to 1805. 1 vol. 
 
 Magnider (A. C). See Maryland, 
 
 Maine. Supreme Court, 1820-82, 73 vols. 
 
 Vol. 1-9, 1820-32. Simon Greenleaf. 
 
 10-12, 1833-35. John Fairfield. 
 
 13-18, 1836-41. JohnShepley. 
 
 19,20, 1841. John AppletOD, . 
 
 20-30, 1841-49. JohnShepley. ' 
 
 31-.35, 1849-53. Asa RediDgton, 
 
 36-40, 1853-55. Solyman Heath. 
 
 41,42, 1856. John M. Adams. 
 
 43,44, 1857-58. Timothy Ludden. 
 
 45-51, 1858-63, Wales Hubbard. 
 
 52-60, 1861-72, Wm. W. Virgin. 
 
 61-64, 1867-75. Edwin B. Smith. 
 
 65-68, 1874-78. Josiah D. Pulsifer. 
 
 69, 70, 1878-80. David R. Hastmgs. 
 
 71-73, 1880-82. J, W. Spaulding. 
 
 Malone (J. C). SeeHeiskell. 
 
 Malone (T. H.). See Heiskell. 
 
 Manning (J.), Granger (T. C), & Scott (J.), 
 See Common Bench, 
 
 Manning (James) & Granger (T. C). Com- 
 mon Pleas, 1840-44, 7 vols. 
 
 Manning (James) & Ryland (Archer). K. B., 
 1827-30. 5 vols. 
 
 Manning (James) & Ryland (Archer). Magis- 
 trate Cases, 1827-30, 3 vols. Vol, 3 has only 
 398 pp. 
 
 Manning (James) & Scott (John). See Com- 
 mon Bench. 
 
 Manning (W. W.). Cases in the Court of Kevb- 
 ion in the Isle of Wight, in 1832: to which m 
 added cases in South Hants in 1835. 1 vol. 
 
 Manning (Randolph). See Michigan. 
 
 Manumission Cases. See Bloomfleld (Joseph). 
 
 March (John). A translation of Brooke's Nw 
 Cases, which see, but difi-erently arranged, toe 
 latter being digested in a chronological oroer, 
 
 March (Johu). King's Bench, 163&43. »» 
 volume is sometimes cited as March, rie" 
 Cases, to distinguish it from the P™S 
 work, but is generally Intended when MareD 
 is cited. 
 
 Maritime Law Cases (Crockford'fl). 
 Admiralty, 1860-71. 3 vols. 
 
REPORTS 
 
 563 
 
 REPORTS 
 
 Maritime Law Cases. New Series ( Aspinall's) . 
 English Admiralty, 1870-77. 3 vols. Vol. i 
 is in course of pubUcation in parts. 
 
 Maritime Kegister. See Mitchell's Maritime 
 
 Marrack. Lords Westbury and RomiUy's De- 
 cisions, European Assurance Arbitration, 1872- 
 75. 1vol. 
 
 Marriott (Sir .James). High Court of Admi- 
 ralty, 1776-79. 1vol. 
 
 Marshall (Alexander K.). Kentucky Court of 
 Appeals, 1817-81. 3 vols. 
 
 Marshall (Charles). C. P., 1813-16. 2 vols. 
 
 Marshall (J. J.). Kentucky Court of Appeals, 
 1839-32. 7 vols. 
 
 Marshall's Decisions. See Brockenbrough. 
 
 Marshall. Bombay High Court, Civil Cases, 
 1863-63. 1vol. 
 
 Martin (A. N.). See Indiana. 
 
 Martin (B. T.). See Georgia. 
 
 Martin (Francois X.). Superior Ct. of Orleans 
 Territory, 1809-12, 2 vols. ; sometimes cited as 
 Orleans Term Reports. Supr. Ct. of Louisiana, 
 1813-23 (vols. 3-12, Martin) ; sometimes cited 
 as Louisiana Term Reports. See next sub- 
 title. 
 
 Martin (Franfois X.). New Series. Louisiana 
 Supr. Ct., 1823-30. 8 vols. The reports by 
 Martin have been republished, under the edi- 
 torial care of Thomas G. Morgan, in 10 vols. 
 The Louisiana Reports have also been repub- 
 lished, under the same editorial care, in a most 
 creditable manner. 
 
 Martin (F. X.), North Carolina Superior Cts. 
 of Law, 1778-97, and D. S. Circ. Ct., Fifth 
 Circ, 1787-96. 2 vols. 
 
 Martin (John H.) & Terger (George S.). Ten- 
 nessee Supr. Ct., 1825-28. 1 vol. 
 
 Maryland. Supreme Court, 1851-81. 57 vols. 
 Vol 1,2, 1851-52. A. C. Magruder. 
 3-18, 1852-62. Oliver Miller. 
 19-26, 1862-66. Nicholas Brewer, Jr. 
 27-57, 1867-81. J. S. Stockett. 
 See Bland ; Gill ; Gill & Johnson; Harris 
 & Gill ; Harris & Johnson ; Harris & 
 McHenry. 
 
 Maryland Chancery Decisions. Maryland Ch. , 
 1847-54. 4 vols. 
 
 Vol. 1. Daniel M. Thomas & James Franklin. 
 2-4. Oliver Miller. 
 
 Maryland Law Record, Baltim,ore, 1876-82. 6 
 vols. Weekly. 
 
 Maryland Law Reporter, Baltimore, 1871-72. 1 
 vol. 
 
 Mason (Wm. P.). U. S. Circ. Ct., First Circ, 
 1816-30. 5 vols. 
 
 Massachusetts. Supreme Court, 1804-81. 131 
 vols. 
 
 Vol. 1, 1804-05. E. Williams. 
 2-17, 1805-22. D. A. Tyng. 
 18-41, 1822-40. Oct. Pickering. 
 42-54, 1840-47. Theron Metcalf. 
 55-66, 1848-53. L. S. Gushing. 
 67-82, 1854-60. Horace Gray, Jr. 
 83-96, 1861-67. Charies Allen. 
 97-114, 1867-74. A. G. Browne, Jr. 
 115-131, 1874r^l. John Lathrop. 
 See Boston Police Reports ; Thacher (Peter 
 0.) ; Quincy (Josiah). 
 Massachusetts Law Reporter, Boston, 1878-82. 
 
 5 vols. Weekly. 
 Mathews (Henry M.). See West Virginia. 
 Matson (Wm. N.). See Connecticut. 
 
 Maule (George) & Selwyn (William). K. B., 
 
 1813-17. 6 vols. 
 Maynard (Sir Jehan). See Tear-Book. 
 Mayor's Court. Judicial Opinions in the Mayor's 
 
 Court of New York City. By Livingston, 
 
 1802. IvoL 
 Mc, See M' and Mac. 
 McAllister (Cutler). U. S. Circ. Ct., Dist. of 
 
 California, 1855-59. 1 vol. 
 McBride (P. H.). See Missouri. 
 McCahon (James). Supr. Ct. of Kansas Terri- 
 tory, 1858-61, 1st Judicial District, and U. 8. 
 
 Circ. Ct., District of Kansas, 1863-68. 1 vol. 
 McCarter (T. N.). See New Jersey Equity. 
 McCook (George W.). See Ohio State. 
 McCord (Daniel J.). South Carolina Constitu- 
 
 tional Ct., 1821-28. 4 vols. 
 McCord (Daniel J.). South Carolina Ct. of App., 
 
 Ch. Cas., 1826-27. 2 vols. 
 McCorkle (J. M.). See North Carolina. 
 McGloin (F.). Louisiana Cts. of App., 1880- 
 
 81. 1 vol. 
 
 McLean (John). U. S. Circ. Ct., Seventh Circ, 
 1829-55. 6 vols. 
 
 McMullan (J. J.). South Carolina Ct. of App., 
 Eq. Cas,, 1840-42. 1 vol. 
 
 McMullan (J. J.). South Carolina Ct. of App., 
 Law Cas., 1835-42. 2 vols. 
 
 Meddaugh (E. W.). See Michigan. 
 
 Meeson (R.) & Welsby (W. N). Exch. and 
 Exch. Chamb., 1836-47. 16 vols. Among 
 the most useful and best reported of the mod- 
 ern English reports. 
 
 Meigs (Return J.). Tennessee Supr. Ct., 1838- 
 
 39. IvoL 
 
 Memphis Law Journal. Memphis, Tenn., 1878- 
 
 79. 2 vols. Quarterly. 
 Menzies (William). Supr. Ct. of the Cape of 
 
 Good Hope, 1828-49. 3 vols. (Edited by 
 
 James Buchanan) . 
 Merivale (J. H.). High Court of Ch., 1815-17. 
 
 3 vols. 
 
 Metcalf (Theron). See Massachusetts Ct., 
 
 1840-47. 13 vols. 
 Metcalfe (James P.). Kentucky Ct. of App., 
 
 1858-63. 5 vols. 
 Michigan Supreme Court, 1847-81. 46 vols. 
 Vol. 1, 1847-50. Randolph Manning. 
 %-4, 1851-57. George C. Gibbs. 
 5-12,18.58-64. Thomas M. .Cooley. 
 13, 1864^65. E. W. Meddaugh. 
 14-18, 186.5-69. Wm. Jennison. 
 19-22, 1869-71. Hovey K. Clarke. 
 23-36, 1871-77. Hoyt Post. 
 37-46, 1877-81. Henry A. Chaney. 
 See Brown ; Douglass ; Harrington ; Walker. 
 
 Michigan Lawyer, Detroit, Mich., 1875-79. 4 
 
 vols. Quarterly. 
 Miles (John). Dist. Ct. of Philadelphia, 1835- 
 
 40. 2 vols. See Pennsylvania State. 
 Miller (Branch W.). See Louisiana. 
 Miller(0.). See Maryland. 
 Miller's Decisions. See Woolworth. 
 
 Miller (S. F.). Decisions of the U. S. Supr. 
 
 Ct., 1855-62. 4 vols.; containing Howard 18 
 
 to 24, and Black 1 & 2. (Being a continuation 
 
 of Curtis's Decjfions.) 
 Mills. See Constitutional (New Series). 
 Milward (C. R.). Prerogative Ct. in Ireland and 
 
 Consistory Ct. of Dublin, 1819-42. 1 voL 
 
REPORTS 
 
 564'> 
 
 REPORTS 
 
 Minnesota Supreme Court, 1851-81. 87 vols. 
 Vol. 1-9, 1851-64. Harvey Officer. 
 10-20, 1865-7'1. Wm. A. Spencer. 
 21-27, 1874^81. George B. Young. 
 
 Minor (Henry). See Alabama. 
 MisBiBsippi Supr. Ct. and Court of Errors and 
 App., 1818-81. 58 vols. 
 Vol. 1, 1818-32. R. J. Walker. 
 
 2-8, 1834r-43. Volney E. Howard. 
 9-22, 1843-50. W. C. Smedes & T. A. 
 
 Marshall. 
 33-29, 1851-55 John F. Cushman. 
 30-39, 185.5-63. James Z. George. 
 40-42, 1864-69. R. O. Reynolds. 
 43-48, 1870-73. J. S. Morris. 
 49-52, 1873-76. G. E. Harris and G. H. 
 
 Simrall. 
 63-58, 1876-81. J. A. Brown and J. B. 
 H. Hemingway. 
 See Freeman; Morris; Smedes & Marshall. 
 
 Mississippi Criminal (or "State") Cases. See 
 
 Morris (J. S.). 
 Missouri Supreme Court, 1821-79. 74 vols. 
 Vol. 1, 1821-28. P. H. McBride. 
 2,3, 1828-35. John C. Edwards. 
 4, 1835-37. W. B. Napton. 
 5-8, 1837-45. S. M. Bay. 
 9-11, 1845-48. B. F. Stringfellow. 
 12, 13, 1848-50. William A. Kobards. 
 14, 15, 1851-52. James B. Gardenhire. 
 16-21, 1852-55. Samuel A. Bennett. ' 
 22-30, 1856-60. Horatio M. Jones. 
 31, 1860-62. H. M. Jones, D. B. Bar- 
 clay, and C. C. Whit- 
 
 32-41, 1862-67. Charles C. Whittelsey. 
 42-64, 1867-77. Truman A. Post. 
 65-74, 1877-Sl. Thomas K. Skinker. 
 
 Missouri Appeals Reports, St. Louis Court of 
 App., 1876-81. 10 vols, by A. M. Berry. 
 
 Missouri Bar, Jefferson City, Mo., 1879. Only 
 160 pp. published. 
 
 Moak (N. C). See English Reports. 
 
 Modem Cases in Law and Equity. See Modem 
 Reports, parts 8 & 9 ; in 1 Burr. 386 it is ob- 
 served, that it is a miBerable, bad book, and in 
 3 Burr. 1326, the court said they treated it 
 with the contempt it deserved. 
 
 Modem Reports. Select Cases in the K. B., C. 
 P., Ch., and Exch., 1669-1755. 12 vols. By 
 various hands, and of various degrees of ex- 
 cellence ; some are very inferior. See much 
 learning on the subject in Wallace, Report. 
 347-390. See Modern Cases in Law and Equity. 
 
 MoUoy (Philip). Irish Ch., 1827-31. 3 vols. 
 Only 124 pp. (no Index) of vol. 3 were pub- 
 lished. 
 
 Monro (C). Acta Cancellarice; or, selections 
 from the Records of the Court of Chancery, 
 etc., 1545-1625. 1vol. 
 
 Monroe (Benjamin). Kentucky Ct. of App., 
 1840-57. 18 vols. 
 
 Monroe (Thomas B.). Kentucky Ct. of App., 
 1824r-28. 7 vols. 
 
 Montagu (Basil). Bankr. Cas. decided by the 
 Lord Chancellor. Vice-Chancellor, and Court 
 of Review, 1830-32. 1 vol. 
 
 Mofitagu (Basil) & Ayrton (Scrope). Bankr. 
 Cas. decided by the Lord Chancellor and Court 
 of Review, 1833-38. 3 vols. 
 
 Montagu (Basil) & Bligh (!%ichard). Bankr. 
 Cas. decided by the Lord Chancellor, Vice- 
 Chancellor, and Court of Review, 1833-33. 1 
 vol. 
 
 Montagu (Basil) & Chitty (Edward). Bankr 
 Cas. decider", by the Lord Chancellor and OniTii 
 of Review, 1838-40. 1vol. """v-oiut 
 
 Montagu (Basil), Deacon (E. E.), & De Gei 
 ( J. ) . Bankr. Cas. before the Lord Chancellor 
 and Court of Review, 1840-44. 3 vols. 
 
 Montagu (BaBil) & Macarthur (John). Bankr 
 Cas. before the Lord Chancellor and Vici.' 
 Chancellor, 1826-29. 1vol. 
 
 Montana Ty. Supreme Court, 1868-80. 3 vo1« 
 Vol. 1-2, 1868-77. Henry N. Blake. 
 
 3, 1877-80. Henry N. Blake, and C. 
 
 Monthly Joumal of Law. See MorriBon's 
 Transcript. 
 
 Monthly Jurist. Bloomington, 111., 1877-78. % 
 vols. (Continuation of the Monthly Western 
 Jurist. ) Succeeded by the Weekly Jurist. 
 
 Monthly Law Reporter. See Law Keporter. 
 Boston. ' 
 
 Monthly Western Jurist. Bloomington, HI. 
 1875-77. 4 vols, succeeded by the Monthly 
 Jurist. 
 
 Montriou. Hindu Law Cases, Calcutta Suor 
 Ct., 1780-1830. 2 vols. 
 
 Montriou. Reports, Calcutta Supr. Ot., 1846. 1 
 vol. 
 
 Moody (William). Crown Cases reseiTed for 
 Decision by the Twelve Judges of England, 
 1824-44. 2 vols. The cases up to number 97 
 are by Sir Edward Ryan, joint editor. 
 
 Moody (William) & Malkin (Benjamin H.). 
 Cases at Nisi Prius in K. B. and C. P. on 
 Westminster and Oxford Circuits, 1826-30.' 1 
 vol. 
 
 Moody (William) & Robinson (Frederic). Cases 
 at Nisi Prius in K. B. and C. P., and on West- 
 ern and Northern Circuits, 1830-44. 2 vols. 
 
 Moore (A.). House of Lords, Common Pleas, 
 and Exchequer Chamber, 1796-1797. See 1 
 Bosanquet & Puller ; after page 470, usnally 
 cited as B. & P. 
 
 Moore (Edmund F.). Cag. in the Privy Coun- 
 cil on App. from the Cts. in the East Indies, 
 1836-72. 14 vols., cited as Moore's Indian 
 Appeals. 
 
 Moore (Edmund F.).- Cases in Privy Council, 
 1836-62. 15 vols. 
 
 Moore (Edmund F.). Cases in Privy Council. 
 New Series, 1862-73. 9 vols. Vol. 3, p. 347 
 to the end, and vols. 4-9 are identical word for 
 word with 1-4 Law Reports, Privy Council. 
 
 Moore (Francis). K. B., C. P., Exch., and 
 Ch., 1512-1613. 1 vol. Moore's Reports are 
 printed from a genuine manuscript, and are 
 esteemed valuable and accurate. 
 
 Moore (George F.) & Walker (Richard 8.). See 
 Texas. 
 
 Moore (J. B.) . C. P. and Exch. Chamb,, 1817- 
 27. 12 vols. 
 
 Moore (J. B.) & Payne (Joseph). C.P.and 
 Exch. Chamb., 1828-31. 5 vols. 
 
 Moore (J. B.) & Scott (John). C. P. andExoI). 
 Chamb., and House of Lords, 1831-34. 4vols. 
 
 Moore (J. M.). See Arkansas. 
 
 Morgan (J.) & Williams (T. W.). Law Jour- 
 nal, London, 1803-04. 2 vols. 
 
 Morgan (T. G.). See Martin (F. X.). New 
 Series. 
 
 Morison (W. M.). Dictionary of the DeciBlons 
 of the Scotch Court of Sessions, 1540-1808- 
 22 vols. 
 
REPORTS 
 
 565 
 
 REPORTS 
 
 Morlson (W. N.)- Synopsis of the Decisions 
 of the Scotch Court of SesBloue, 1818. 3 vols. 
 
 Morris (Eastin). Iowa Supr. Ct., 1839-46. 1 
 vol. 
 
 Morris (J. S.). Mississippi State Cases; being 
 Criminal Cases in the High Ct. of Error and 
 App. and in the Supr. Ct., 1818-72. 8 vols. 
 
 Morris (J. S.). See Mississippi. 
 
 Morris (Wm. G.). See California. 
 
 Morris. Bombay. Sadder Foujdaree Adawlut 
 Cases, 1854-57. 8 vols. 
 
 Morrison (W. H. & O. H.). Transcript of the 
 Decision of the U. S. Supr. Ct., 1881-82. 5 
 vols. With this is published the Monthly Jour- 
 nal of Law. 
 
 Morton. Calcutta Supr. Ct., India, 1744^-1841. 
 1vol. 
 
 Mosely (WiUlam). High Court of Ch., time of 
 King, 1726-30. 1 vol. Condemned by Lord 
 Mansfield, but perhaps on insufficient ground. 
 Lord Eldon, a better judge of the merits of a 
 Chancery Reporter, spoke well of it (19 Ves. 
 488 n.), as did also Mr. Hargrave. Wallace, 
 Report. 504. 
 
 Munford (William). Virginia Supr. Ct. of App., 
 
 1809-20. 6 vols. 
 Murphey (A. D.). North Carolina Supr. Ct., 
 
 1804-19. 3 vols. 
 
 Murphy (I".' S.) & Hurlstone (Edward T.). 
 
 Exch., 1836-37. 1vol. 
 Murray (J.). Jury Court Cases in Scotland, 
 
 1815-30. 5 vols. 
 Mylne (James W.) & Craig (E. D.). Court of 
 
 Ch., time of Cottenham, 1885-40. 5 vols. 
 Mylne (James W.) & Keen (Benjamiu). Court 
 
 of Ch., time of Brougham, 1832-35. 3 vols. 
 Myrick (M. H.). Probate Court of the City 
 
 and County of San Francisco, 1872-79. 1 vol. 
 
 Edited by T. H. Kearden. 
 
 Napton (W. B.). See Missouri. 
 National Bank Cases. Containing all Decisions 
 of both Federal and State Courts relating to 
 National Banks, 1864-80. 2 vols. 
 Vol. 1, 1864-78. Isaac G. Thompson. 
 2, 1878-80. Irving Browne. 
 National Bankruptcy Register. New York, 
 
 1868-81. 19 vols. Monthly. 
 Nebraska. Supreme Court, 1870-83. 12 vols. 
 Vol. 1,3, 1870-73. J. M. Woolworth. 
 3, 1873-74. Lorenzo Crounse. 
 4-12, 1875-82. Guy A. Brown. 
 Nelson (W.). Reports of Special Cases in the 
 
 Court of Ch., 1625-93. 1 vol. 
 Nelson (W.). Cases in Chancery, time of 
 
 Finch. See Finch. 
 Nelson (W.). See Modem. 
 Nevada. Supreme Court, 1865-82. 16 vols. 
 Vol. 1, 1865. By the Judges. 
 
 3-5, 1866-69. Alfred Helm. 
 6-9, 1869-74. A Ifred Helm and T. H. 
 
 Hittell. 
 10-16, 1874-82. C. F. Bicknell and T. P. 
 Hawley. 
 Nevile (Sandford) & Manning (William M.). 
 
 K. B., 1831-36. 6 vols. 
 Neviie (Sandford) & Manning (WUliam M.). 
 
 Magistrate Cases, 1833-36. 3 vols. 
 Nevile (Sandford) & Perry (Thomas E.). K. 
 
 B. and Exch. Chamb., 1836-38. 3 vols. 
 Nevile (Sandford) & Perry (Thomas E.). 
 Magistrate Cases, 1836-37, 1 vol. 
 
 Neville (Ralph) & Macnamara (Walter H.). 
 English Railwajr and Canal Cas. (mostly be- 
 fore the Rail. Commissioners), 1855-81. 3 vols. 
 New Benloe. See Bendloe. 
 New Brunswick. See Allen, Burton, Hannay, 
 
 Kerr, Pugsley, Pugsley & Burbidge. 
 Newfoundland. See Tucker (R. A.). 
 New Hampshire. Supr. Ct., 1816-76. 57 vols. 
 Vol. 1, 1816-19. Nathaniel Adams. 
 
 2, 1819-23. Levi Woodbury & W. 
 
 M. Richardson. 
 3-5, 1823-33. W. M. Richardson. 
 6-12, 1832-42. The Judges. 
 13-16, 1842^16. The Judges. 
 17,18, 1846-48. The Judges. 
 
 19, 1848-49. William L. Foster. 
 
 20, 1849-50. W. E. Chandler. 
 21-31, 1850-55. W. L. Foster. 
 32-37, 1855-59. George G. Fogg. 
 38-44, 1859-63. W. E. Chandler. 
 45^8, 1863-69. Amos Hadley. 
 49-55, 1869-75. John M. Shirley. 
 56-57, 1875-76. Daniel Hall. 
 
 See Smith (Jer.). 
 New Jersey Law. Supr. Ct., 1790-1881. 43 vols. 
 Vol. 1, 1790-95. Richard S. Coxe. 
 3-3, 1806-13. Wm. S. Pennington. 
 4r-5, 1816-20. Samuel L. Southard. 
 «-12> ™8-1804. Wm.Halsted,Jr. 
 
 13-15, 1831-36. James S. Green. 
 16-19, 1837-43. J. Harrison. 
 30, 1842-46. Robert D. Spencer. 
 31-34, 1847-55. A. O. Zabriskie. 
 85-39, 1855-62. Andrew Dutcher. 
 30-43, 1863-81. Peter D. Vroom. 
 See Bloomfleld. 
 New Jersey Equity ; Court of Ch.; the Preroga- 
 tive Ct. and Ct. of Errors and App., 1830-81. 
 34 vols. 
 Vol. 1, 1830-32. N. Saxton. 
 
 3-4, 1834-45. Henry W. Green. 
 5-8, 1845-53. George B. Halsted. 
 9-11, 1853-58. John P. Stockton. 
 13-13, 1858-60. Mercer Beasley. 
 14r-15, 1861-63. Thos. N. McCarter. 
 16-27, 1863-77. C. E. Green. 
 28-34, 1877-81. John H. Stewart. 
 New Jersey Law Journal. Somerville, N. J., 
 
 1878-82. 5 vols. Monthly. 
 New Magistrate Cases. Reported by Bittleton, 
 
 Wise, & Parnell, 1844-50. 3 vols. 
 New Mexico. Supreme Court, 1852-79. 1 vol. 
 
 By Charles H. Gildersleeve. 
 New Practice Cases. Together with Cases in 
 Evidence, Stamps, and the Law of Attorneys 
 and Solicitors, 1844-48. 3 vols. Vol. 3 con- 
 tains only 216 pp. 
 New Reports. The Cases in the Cts. of Eq. and 
 
 Common Law, 1862-65. 6 vols. 
 New Reports. See Bosanquet & Puller. 
 New Sessions Cases. Cases relating to Magis- 
 trates determined in the Superior Cts. at West- 
 minster, 1844-51. 4 vols., vol. 4 only 750 pp. 
 Vol. 1, 2. J. M. Carrow, J. Hamerton, & F. 
 Allen. 
 
 3. J. Hamerton, F. Allen, & C. Otter. 
 
 4. C. G. Prideaux & H. T. Cole. 
 New York. Court of Appeals, 1847-81. 86 vols. 
 
 Vol. 1-4, 1847-51. Geo. F. Comstock. 
 
 5-10, 1851-54. Henry R. Selden. 
 
 11-14, 1854^56. Francis Kernan. 
 
 15-27, 1857-63. E. Peshine Smith. 
 
 28-39, 1863-68. Joel Tiffany. 
 
 40-45, 1869-71. Samuel Hand. 
 
 46-86, 1871-«i. H. E. Sickels. 
 
REPORTS 
 
 566 
 
 REPORTS 
 
 Supreme Court, 1869-82. 33 vols. 
 Vol. 1-7, 1869-73. Abraham Lanelng. 
 
 8-33, 1874-83. Marcus T. Hun. 
 
 See Thompson (Isaac G.) & Cook (R. D.). 
 
 Superior Court of New York City, 1828-81. 
 
 45 vols. 
 Vol. 1-2, 1828-29. J. P. Hall. 
 
 3-7, 1847-52. L. H. Sandford. 
 8-13, 1853-57. John Duer. 
 14-23, 18.57-63. J. S. Bosworth. 
 24r-30, 1863-68. A. L. Robertson. 
 31-33, 1869-70. J. M. Sweeny. 
 83-47, 1871-81. S. Jones & J. C. Spencer. 
 See Abbott ; Anthon ; Barbour ; Bosworth ; 
 Bradford ; Caines ; Clarke ; Code Reporter ; 
 Code Reports ; Coleman ; Coleman and 
 Caines ; Cowen ; Daly ; Denio ; Duer ; Ed-, 
 monds ; Edwards ; Gardenier ; Hall ; Hill 
 Hilton ; Hofifman ; Hopkins ; Howard, N. 
 Johnson, W. ; Judicial Repository ; Keyes 
 Lansing ; Lalor ; Livingston ; Lockwood 
 Lomas ; Paige ; Parker ; Redfleld ; Rogers 
 Sandford ; Selden : Sheldon ; Smith, E. D. 
 Smith, E. P. ; Transcript Appeals ; Tucker 
 Wendell ; Wheeler ; Yates. 
 New York Judicial Repository. See Jud. Repos. 
 New York Law Gazette. New York, March to 
 
 May, 1858. 65 numbers. Daily. 
 New York Legal Observer. New York, 1843-54. 
 
 13 vols. 
 New York Legal Register. New York, 1850. 1 
 
 vol. 
 New York Monthly Law Bulletin. New York, 
 
 1879-83. 4 vols. Monthly. 
 New York Municipal Gazette. New York, 1841- 
 
 46. 1vol. 
 New York Reporter (Gardenier's). New York, 
 
 July, 1830. 1 number. 
 New York Transcript. New York, 1859-68. 11 
 
 vols. 
 New York Transcript. New Series. New York, 
 
 1868-73. 
 New York Weekly Digest of Cases decided in all 
 the Courts of New York, with a few other 
 Cases, 1876-«3. 12 vols. 
 Newberry (John S.). Admiralty Reports. 1vol. 
 Dist. of Eastern Louisana, 1842-56, 
 
 Illinois, 1853-54. 
 
 Michigan, 1853-57. 
 
 Missouri, 1846-56. 
 
 Northern Ohio, 1855-56. 
 
 Southern Ohio, 1853-55. 
 
 Western Pennsylvania, 1853. 
 
 NichoU (H. I. ) . See Railw. & Canal Cases. 
 Nisbet (John). See Dirleton. 
 Nizamut Adawlut. See Macnaghten. 
 Nolan (M.). Cases in the K. B. relating to Jus- 
 tices of the Peace. 1791-93. 1 vol. 
 Norris (A. Wilson) . See Pennsylvania State. 
 North Carolina. Superior and Supr. Cts., 1778- 
 1881. 85 vols. 
 See Murphey; Carolina Law Repository; 
 North Carolina Term Reports ; Hawks ; 
 Devereux ; Devereux's Equity ; Devereux 
 ■& Battle; Devereux & Battle's Equity; 
 Iredell ; Iredell's Equity ; Busbee ; Bus- 
 bee's Equity; Jones, H.C.; Jones's Equity ; 
 Winston ; Winston's Equity ; Phillips, S. 
 F.; Phillips's Equity. ^ 
 Vol. 63-64, 1868-70. S. E. Phillips. 
 65, 1871. J. M. McCorkl 
 66.67, 1872. W. M. Shipp. 
 68-75, 1873-76. T.L.Hargrove. 
 76-85, 1877-81. Thomas S. Kenan. 
 See Cameron & Norwood ; Haywood ; Martin ; 
 Taylor. 
 
 North Carolina Term. Superior Cts. of Nnni, 
 Carolina, 1816-18. 1 volf °™ 
 
 Nortbington. See Eden. 
 Northwestern Law Journal, Portland, Oregon 
 
 Northwestern Provinces. High Court Rcnnrfa. 
 India, 1869-75. 8 vols. ^ ™' 
 
 Northwestern Reporter, St. Paul, Minn 1877 
 79. 4 vols. Weekly. Succeeded tile StI 
 labi. ' 
 
 Northwestern Reporter. New Series ; contain 
 ing all the decisions in full of the Supreme 
 Courts of Minnesota, Wisconsin, Iowa, Michi- 
 gan, Nebraska, and Dakota. St. Paul, Minn 
 1879-83. 13 vols. Weekly. ' ' 
 
 Norton (J. B.). Leading Cases in the Hindu 
 Law of Inheritance, Madras, 1870. 
 
 Notes of Cases at Madras, 1796-1816. 3 vols. 
 
 Notes of Cases in the Ecclesiastical and Maritime 
 Courts. Thomas Thornton, 1841-50. 7 vols. 
 
 Notes of Cases, Penna. See Weekly Notes. 
 
 Nott & Hopkins. See Court of Claims. 
 
 Nott & Huntington. See Court of Claims. 
 
 Nott (Henry J.) & McCord (Daniel J.). South 
 Carolina Constitutional Ct., 1817-89. 2 vols. 
 
 Nova Scotia. See Cochran; James; Nova 
 Scotia Decisions ; Oldright ; Russell & Cbes- 
 ley; Russell & Geldert; Stewart; Thomp. 
 son. 
 
 Nova Scotia Decisions. Supr. Ct. of Nova 
 Scotia, 1866-69. 1vol. Geldert & Oxley. 
 
 Noy (William). K. B. and C. P., 1559-1649. 1 
 vol. This is an abridgment by Serjeant Size, 
 who when a student borrowed Noy's Beports 
 and abridged them for his own use. Vide 
 Ventr. 81, 2 Keb. 652; for a full account see 
 Wallace, Report. 154. 
 
 O'Brien (H.). Sue Upper Canada, Practice 
 
 Reports. 
 Officer (H.). See Minnesota. 
 Oificial Gazette of the U. S. Patent Office, 1873- 
 
 83. 31 vols. 
 Ogden (A. N.). See Louisiana Annual. 
 
 Ohio. Supreme Court, 1831-51. 20 vols. 
 Vol. 1-9, 1821-39. Charies Hammond. 
 
 10, 1840-41. P. B. Wilcox. 
 
 11-13, 1841-44. Edwin M. Stanton. 
 
 14-19, 1846-50. Hiram Griswold. 
 
 20, 1851. William Lawrence. 
 
 See Handy ; Tappan ; Wright. 
 
 Ohio State. Supreme Court, 1852-81. 37 vols. 
 Vol. 1, 1852-53. George W. McCook. 
 3, 1853. Robert B. Warden. 
 3, 1853-54. R. B. Warden & J. H. 
 Smith. 
 ■ 4, 1854-55. R. B. Warden. 
 5-21, 18.55-71. L. J. Critchfield. 
 22, 23, 1871-73. Moses M. Granger. 
 24-37, 1873-82. E. L. DeWitt. 
 See Cincinnati Superior Court ; Disney. 
 
 Ohio Law Journal, Columbus, Ohio, 1881-82. 
 
 3 vols. Weekly. 
 Olcott (Edward R.). U. S. Dist. Ct., New 
 
 York Southern Dist., 1843-47. 1 vol. 
 Oldright (H.). Supr. Ct. of Nova Scotia, 1860- 
 
 66. 3 vols. 
 Oliver (Lionel) . See Railway & Canal Cases. 
 O'Malley (E. L.) &Hardcastle (H.). PwU*- 
 
 mentary Election Cases, 1869-82. i vols. 
 Ontario. See Upper Canada. 
 
REPORTS 
 
 567 
 
 REPORTS 
 
 Oreffon Supreme Court, 1853-80. 8 vols. 
 
 •Vol. 1-3, 1853-70. Job. G. WiUon. 
 4rS, 1870-80. C. B. Bellinger. 
 
 Vol. 3 contains also Cases in the Circ. Cts. of 
 Oregon, 1867-7^. 
 Orlando Bridgman. See Bridgman. 
 Orleans Term. See Martin. 
 Ormond (J. J.). See Alabama, New Series. 
 Otto (Wm. T.). See U. S. Supreme Court. 
 Outerbridge (A. A.). See Penna. State. 
 Overton (John). Supr. Ct. and Federal Ct. for 
 
 Tennessee, 1791-1815. ,2 vols. 
 Owen (Thomas). K. B. and C. P., 1556-1615. 
 
 1vol. 
 
 Paolflo Coast Law Journal. San Francisco, 
 
 1876-81. 6 vols. Weekly. 
 Pacific Law Magazine. San Francisco, January 
 
 to June, 1867. 6 nos. 
 Pacific Law Reporter. San Francisco, 1870-78. 
 
 16 vols. Weekly. (Only 11 numbers of vol. 
 
 15 were published. ) 
 Paige (A. C). New York Ch. , 1828-45. 11 vols. 
 Paine (Elijah, Jr.). U. S. Circ. Ct., Second 
 
 Ciia., 1810^0. 2 vols. 
 Palgrave (Francis). See Kotuli Curiae Regis. 
 Palmer (E. F.). See Vermont. 
 Palmer (Sir Godfrey). K. B., 1619-29. 1vol. 
 Papy (Mariano D.). See Florida. 
 Parker (AmafiaJ.). Criminal Cases at Terms 
 
 in Chambers and Oyer and Terminer in New 
 
 York, 1839-68. 6 vols. 
 Parker (F. E.). See Sprague. 
 Parker (Sir T.). Exchequer, 1743-67. 1vol. 
 Parsons (A. V.). Select Eq. Gas. in the C. P. of 
 
 the First Dist. of Penna., 1841-51. 2 vols. 
 Paschal (G. W.). See Texas. 
 Patent Law Review. Washington, 1879-80. 
 
 Only 5 nos., 76 pp., issued. 
 Patent Office Decisions. Decisions of the U. S. 
 
 Commissioner of Patents, 1871-82. 12 vols. 
 Patent Office Gazette. See Official Gazette. 
 Paterson (James) . Scotch App. in H. of Lords, 
 
 1851-73. 2 vols. 
 Paton (T. S.). See Craigie & Stewart. 
 Patrick (Alfred) . Upper Canada Election Cas. , 
 
 1849. 1vol. 
 Patton (John M. ) & Heath (Roscoe B. ) . Special 
 
 Ct. of App. in Virginia, 1855-59. 3 vols. 
 Peake (Thomas). N. P. Cas. in K. B., 1790- 
 
 1812. 2 vols. Vol. 2 is titled "Additional 
 
 Cases." 
 Pearce (Robert R.). See Denison (S. C). >. 
 Pearson (Wm.). C. P. of Dauphin and Lebanon 
 
 Counties, Penna., 1850-80. 2 vols. 
 Peck(E.). See Illinois. 
 Peck (Jacob). Tennessee Supr. Ct. of Errors 
 
 and App. , 1822-24. 1 vol . 
 Peckwell (Robert H.). Parliamentary Election 
 
 Cases, 1802-05. 2 vols. 
 Peere Williams (Wm.). K. B. and Ch., 1695- 
 
 1736. 3 vols. 
 
 Pennington (William S.). New Jersey Snpr. 
 Ct., 1806-13. 2 vols. 
 
 Pennsylvania. Supr. Ct., 1829-32. 3 vols. 
 Vol.1. Wm. Rawle, Jr., C. B. Penrose, 
 and Fred. Watts. 
 a-3. C. B. Penrose and Fred. Watts. 
 
 Pennsylvania State. Supr. Ct., 1845-81. 97 vols. 
 In 98, there being a supplement to vol. 81. 
 Vol. 1-10, 1845-49. Robert M. Barr. 
 
 11, 1849. J. P. Jones. 
 
 12, 1849. J. P. Jones & R. C. 
 
 McMurtrie. 
 
 13-24, 18,50-55. George W. Harris. 
 
 25-36, 18.55-60. Joseph Casey. 
 
 37-50, 1860-05. Robert E. Wright; 
 
 51-81*, 1865-76. P. F. Smith. 
 
 82-96, 1876-81. A. Wilson Norris. 
 
 97, 1881. A. A. Outerbridge. 
 
 See Addison ; Binney ; Brightly ; Dallas ; 
 Grant ; Pennsylvania ; Rawle ; Sergeant & 
 Rawle ; Watts ; Watts & Sergeant ; Whar- 
 ton ; Teates. 
 For cases in the lower courts, see American 
 Law Reg. ; Ashmead ; Brejwster ; Browne ; 
 Clark ; Insurance Reporter ; Lancaster Bar ; 
 Legal Chronicle ; Legal Gazette ; Legal In- 
 telligencer ; Luzerne Legal Observer ; Miles ; 
 Parsons ; Pearson ; Penusylvauia Law Jour- 
 nal ; Pennypacker ; Philadelphia ; Pitts- 
 burgh ; Pittsburgh Legal Journal ; Vaux ; 
 Weekly Notes of Cases. 
 
 Pennsylvania Law Journal. Philadelphia, 1842- 
 
 48. 7 vols. See Clark (J. A.). 
 Pennsylvania Law Record. Philadelphia, 1879- 
 
 80. 3 vols. 32 pp. of vol. 3 published. 
 Pennypacker (Samuel W.). Cases in Supr. Ct. 
 
 of Penna. not reported by the state reporter, 
 
 1,881. 1 vol. 
 Penrose & Watts. See Pennsylvania. 
 Perry (Sir Earskine). Supr. Ct., Bombay, 
 
 1843-50. 1 vol. 
 Perry (Thomas E.) & Davison (Henry). Q. B. 
 
 and Exch. Chamb., 1838-41. 4 vols. 
 Perry (H. J.) &Knapp (J. W.). Parliamentary 
 
 Election Cases, 1833. 
 Peters (Richard, Jr.). Admiralty Decisions for 
 
 Pennsylvania and Maryland, 1792-1807. 2 
 
 vols. 
 Peters (Richard, Jr. ) . Condensed U. S. Supr. 
 
 Ct. Reports, embracing Dallas, Cranch, and 
 
 Wheaton, 1790-1827. 6 vols. 
 Peters (Richard, Jr.). U. S. Circ. Ct., Thii'd 
 
 Circ, 1803-18. 1 vol. 
 Peters (Richard, Jr.). U. S. Snpr. Ct., 1827- 
 
 43. 17. vols. There is a supplement to vol. 
 
 11. The last volume was not official and is 
 
 not numbered among the U. S. Reports. 
 
 Peters. See Haviland. 
 
 Petit Brooke. See Brooke (Robert). 
 
 Philadelphia Reports. Containing Decisions 
 
 originally published in the Legal Intelligencer, 
 
 1850-78. 12 vols. Vols. 1-10 edited by H. E. 
 
 Wallace, and 11, 12 by H. C. Brown. 
 Pliilipps (John). Parliamentary Election Cases, 
 
 1780-81. 1 vol. 
 Phillimore (Joseph). Eccl. Cts. at Doctors' 
 
 Commons and High Ct. of Delegates, 1809-21. 
 
 3 vols. 
 Phillimore (Jos.). See Lee (George). 
 Phillimore (R.). Eccl. Judgments in the Ct. 
 
 of Arches, 1867-75. 1 vol. 
 Phillips (S. M.). State Trials. A collection of 
 
 the most interesting Trials prior to the Revolu- 
 tion of 1688. 2 vols. 
 Phillips (S. F.). Supr. Ct. of North Carolina, 
 
 Eq., 1866-68. 1vol. 
 Phillips (S. F.). Supr. Ct. of North Carolina, 
 
 Law, 1866-68. 1 vol. 
 Phillips (S. F.). See North Carolina. 
 
KEPORTS 
 
 568 
 
 REPORTS 
 
 Phillips (T. J.). High Ct. of Ch., time of Cot- 
 tenham, 1841-49. a vole. 
 
 Pickering (Octavius). See Massachusetts. 
 
 Pigott (Gillery) & Rodwell (Hunter). Regis- 
 tration Appeal' Cases in the C. P. on app. from 
 the Kevising Barristers, 1843-45. 1 vol. 
 
 ■Pilte (Albert). See Arltansas. 
 
 Pinney (S. U.). Supr. Ct. of Wisconsin, 1843- 
 52. 3 vols. This is a reprint of Burnett's 
 Reports, 1 vol., and Chandler's Reports, 4 
 vols., and includes a large number of cases not 
 before reported. 
 
 Pistorl. Mauritivis, 1861-68. 2 vols. 
 
 Pitcairn (Robert). Criminal Trials in Scotland, 
 1488-1624. 4 vols. 
 
 Pittsburgh Legal Journal. Pittsburgh, Fenna., 
 1853-«3. 29' vols. Weelily. 
 
 Pittsburgh Reports. , Federal and State Courts 
 of Pennsylvania, chiefly at the city of Pitts- 
 burgh. Originally published in Pittsburgh 
 Legal Journal, and not reported in the regular 
 Reports, 1853-73. 3 vols. Edited by Boyd 
 Crumrine. 
 
 Placita Anglo-Kormannica. See Bigelow (M. 
 M.). 
 
 Plowden (Edmund). K. B., C. P., and Exch., 
 1550-80. 1 vol. Probably the most full, fin- 
 ished, and thoroughly accurate of the old re- 
 porters ; always highly esteemed. For an 
 amusing illustration of subtle argumentation, 
 see the case of Hales vs. Petit, as quoted' by 
 Wallace, Report. 147, where he shows it to be 
 the original of the grave-digger's scene in 
 Hamlet. 
 
 Pollexfen (Sir Henry). K. B., C. P., Exch., & 
 Ch., 1669-85. 1vol. 
 
 J'ooley. See Precedents in Chancery. A book of 
 no authority ; 1 Keb. 676 ; Carter, 15. 
 
 Popham (Sir John). King's Bench, Common 
 Pleas, and Chancery, 1592-1627. 1 vol. 
 
 Porter (Albert G.). See Indiana. 
 
 Porter (Benjamin F.). See Alabama. 
 
 Post (H.). See Michigan. 
 
 Post (T. A.). See Missouri. 
 
 Power (David), Rodwell (Hunter) ,& Dew (E. 
 L.). Pari. Election Cases, 1848-56. 2 vols. 
 
 Practical Register. C. P., 1705-42. 1 vol., said 
 to be by Sir George Cooke. 
 
 Practice Cases. See Cooke (Geo.). 
 
 Practice Reports. Upper Canada, 1850-79. 7 
 vols., by J. L. Robinson. 
 
 Prater (H.). Cases Illustrative of the conflict 
 of the Laws of England and Scotland as to 
 marriage, etc., London, 1835. 1 vol. 
 
 Pratt (Frederic T.). Cases in Contraband of 
 War, 1740-50. 1vol. 
 
 Pratt (Tidd). Poor Law Cases. See Bott (E.). 
 
 Precedents in Chancery. High Ct. of Ch., 
 1689-1723. 1 vol. It was said by Ld. Hard- 
 wicke, that these notes down to 1708 were 
 taken by Mr. Pooley, the remainder by Mr. 
 Robins. 
 
 Price (G.). Exch., 1815-24. 13 vols. 
 Price (G.). Notes of Practice in the Exch., 
 1830-31. 1 vol. of 184 pp. 
 
 Prickett (H. E.). See Idaho. 
 
 Prideaux (C. G.) & Cole (H. T.). See New 
 
 Sessions Cases. 
 Printed Decisions. See Kentucky Decisions. 
 Privy Council Appeal Cases. See Law Reports. 
 
 Probate and^ivorce Cases. See Law Reports 
 
 Probate Division. See Law Reports (NeV 
 Issue) . 
 
 Profifatt (John). See American Decisions. 
 Pugsley (W.). New Brunswick Sunr Ct 
 1870-76. 3 vols. ^ ''''' 
 
 Pugsley (W.) & Burbidge (G. W.). New 
 
 Brunswick Supr. Ct., 1877-80. 4 vo4. 
 Pulsifer (Josiah D.). See Maine. 
 Pyke. King's Bench for the District of Queiee 
 
 1810. 1vol., 77 pp., no index. ^ ' 
 
 N, 
 Quarterly Law Journal. Richmond, Va., 1866- 
 
 66. 6 vols. ; only 80 pp. of vol. 6 were puh. 
 
 lished. 
 Quebec Law Reports, 1875-83. 8 vols. 
 Quebec. See Lower Canada, etc. 
 Queen's Bench. Cases in the Q. B., 1841-58, 18 
 
 vols., by J. L. Adolphus and F. F. Ellis. 
 
 Queen's Bench. See Law Reports. 
 
 Queen's Bench. See Upper Canada Queen's 
 Bench. 
 
 Queen's Bench Division. See Law Reports. 
 
 Quincy (Josiah, Jr.). Supr. Ct. of Judicature for 
 the Province of Massachusetts Bay, 1761-62, 1 
 vol. Edited by Samuel M. Quincy. 
 
 Railway & Canal Cases. Cases relating to Rail- 
 ways and Canals argued in the Englisli Cts. of 
 Law and Eq., 1835-54. 7 vols. 
 Vol. 1, 3. Henry I. Nicholl, Thomas Hare, 
 & John M. Carrow. 
 
 3. John M. Carrow, Lionel Oliver. 
 
 4. John M. Carrow, Lionel Oliver, 
 
 Edward Beavan, & TtiomaeE. 
 P. Lefroy. i 
 
 5-7. Lionel Oliver, Edward Beavan, & 
 Thomas E. P. Lefroy. 
 
 Randolph (A. M. F.). See Kansas. 
 
 Randolph (Peyton). Virginia Ct. of App.. 
 1831-38. 6 vols. 
 
 Randolph (W. M.). See Louisiana Annual 
 
 Raney (George P.). See Florida. 
 
 Rattigan (W. H.). Leading Cases on Hindu 
 Law, 1871. 2 vols. 
 
 Rawle (William, Jr.). Penna. Supr. Ct., 1828- 
 35. 5 vols. 
 
 Rawle (W., Jr.), Penrose (C. B.), & Watts 
 (F.). See Pennsylvania. 
 
 Raymond (Lord Robert). K. B. and C. P., 
 1694^1734. 3 vols. Some of the earlier cases 
 in Lord Raymond, having been taken Thente 
 was a young man, or copied from the papers 
 of bis difierent young friends, have not been 
 so highly esteemed, perhaps, as his other cases, 
 which are, generally speaking, his own. As a 
 whole, his reports are highly respected, and 
 often cited, even in this day and conntij. 
 Wallace, Report. 401. 
 
 Raymond (Sir Thomas). K. B., C. P., and 
 Exch., 1660-83. 1vol. 
 
 Rayner (John). Tithe Cases, Exch. Chamb., 
 1575-1782. 3 vols. 
 
 Real Property Cases. Eng. Cts, 1843-48. 2 vole. 
 
 Rearden (T. H.). See Myrick. 
 
 Recorder's Decisions. See Vaux (Richard.). 
 
 Redfleld (AmasaA.). New York Surrogate Cle., 
 1857-80. 4 vols. 
 
 Redfleld (Isaac P.) Leading Amer. Railway 
 Cas. tol872. 8 vols. 
 
REPORTS 
 
 S69 
 
 REPORTS 
 
 Bedfleld (Isaac F.). Leading Caa. on the Law 
 
 of Wills to 1874. 1 vol. 
 Kedfield (Isaac F.) & Bigelow (M. M.). Lead- 
 ing Amer. Cas. on Bills, etc., to 1871. 1 vol. 
 Bedington (Asa). See Maine. 
 Reese (W. B., Jr.). See Heiskell. 
 Reilly (F. S.). Lord Cairns's Decisions, Albert 
 
 Arbitration, 1871-73. 1 vol. 
 Keilly (F. S.). Lord Westbury's Decisions, 
 
 European Arbitration, 1873. 1 vol. 
 Keporter, The. Washington, 1865-67. 4 vols. 
 Keporter, The. New York & Boston, 1876-83. 
 
 14 vols. Weekly. Vol. 1 to 4 are entitled Law 
 
 and Equity Reporter. 
 Reports and Cases of Practice, C. P., In the 
 
 reigns of Anne, Geo. I., and Geo. II. 3 vols. 
 Reports in Chancery, 1615-1713. 3 vols, usually 
 
 bound in 1. 
 Reports in Equity. See Gilbert. 
 Reports tempore, etc. See Cases tempore, etc. 
 Rettie, Crawford & Melville. See Session Cases. 
 Revue Critique, Montreal, Can. ,1871-75. 3 vols. 
 Revue Legale, Montreal, Can., 1869-83. 11 vols. 
 Revue de Legislation, Montreal, 1845-48. 3 vols. 
 Reynolds (E. 0.). See Mississippi. 
 Rhode Island Supreme Court, 1838-80. 13 vols. 
 
 Vol. 1, 1838-51. J. K. Angell & Thomas 
 Durfee. 
 
 2, 1851-53. Thomas Durfee. 
 
 3, 1838, 
 
 1853-56. John P. Knowles. 
 4r-7, 18.54-63. Samuel Ames. 
 8, 1861-67. Samuel Ames, John P. 
 Knowles, and Charles 
 S. Bradley. 
 9, 10, 1868-74. John F. Tobey. 
 11,13,1874-80. Arnold Green. 
 
 Rice (William). South Carolina Ct. of Errors 
 
 and App., Eq. Cas., 1888-39. 1 vol. 
 Rice (William). South Carolina Ct. of Errors 
 
 and App., Law Cas., 1838-39. 1 vol. 
 Richardson (J. S. G.) . Cases in Ch. in the Ct. 
 
 of App., South Carolina, 1831-32. 1 vol. 
 Richardson (J. S. G.). South Carolina Ct. of 
 
 Errors and App., Eq. Cas., 1844^-68. 14 vols. 
 Richardson (J. S. G.). South Carolina Ct. of 
 
 Errors and App. , Law Cas. , 1844r-68. 15 vols. 
 Richardson (W. M.). See New Hampshire. 
 Ridgeway (William) . Cases on App. and Writ 
 
 of Error in Pari, in Ireland, 1784-93. 3 vols. 
 Kidgeway (William). K. B. and Ch., time Lord 
 
 Hardwicke presided in those courts. King's 
 
 Bench, 1738, Chancery, 1744^-45. 
 
 Ridgeway (WUliam). State Trials in Ireland, 
 1798. 
 
 !way (William), Lapp (William), & 
 Schoales (John) . Cases in the King's Courts 
 at Dublin, 1793-95. 1 vol. Sometimes cited 
 as Irish Term. 
 
 EHey (W.). South Carolina Ct. of App., Eq. 
 Cas., 1836-37. 1 vol. Riley was the publisher, 
 but the reports are known by his name. 
 
 Riley (W.). South Carolina Ct. of App., Law 
 Cas., 1836-37. 1vol. See next above. 
 
 Robards (C. L. ) . Snpr. Ct. of Texas, upon appli- 
 cations for writs of Habeas Corpus, etc. , arising 
 from Conscript Cases. 1863-65. 1 vol. 
 
 Robards (C. L.) & Jackson (A. M.). See Texas. 
 
 Robards (William A. ) . See Missouri. 
 « 
 
 Eobb (James B.). Patent Cases in the Supr. 
 Ct. and the Circ. Cts. of U. S. from their or- 
 ganization to 1850. 3 vols. 
 
 Roberts (W. H.), Leaming (H.), & Wallis (J. 
 E.). English County Cts., 1849-51. 1 voL of 
 576 pp. 
 
 Robertson (A. L.). See New York Superior Ct. 
 Robertson (Daniel T.). City Courts Reports. 
 
 The Decisions of the Mariue Ct. of New York 
 
 City, with a few other cases, 1878-80. 1 vol. 
 Robertson (David). House of Lords Cas. on 
 
 App. from Scotland, 1707-27. 1 vol. 
 Robertson (J. E. P.). Ecd. Cts. at Doctors' 
 
 Commons, 1844-53. 3 vols. Vol. 3, 648 pp. 
 Robertson. Sandwich Islands, Courts of Record, 
 
 1846-56. 1vol. 
 
 Robinson (Christopher) . High Court of Admi- 
 ralty in the time of Scott, 1798-1808. 6 vols. 
 
 Robinson (Christopher). See Robinson (J. L.). 
 
 Robinson (Conway). Virginia Ct. of App., 
 1843-44. 3 vols. 
 
 Robinson (George). House of Lords Cas. on 
 
 App. from Scotland, 1840-41. 2 vols. 
 Robinson (J. L.). Upper Canada Chamb. Cas. 
 
 in Q. B. and C. P., 1848-53. 3 vols. Second 
 
 volume by Christopher Robinson. See Upper 
 
 Canada. 
 Robinson (J. L.). See Practice Reports. 
 Robinson (Merritt M.). Louisiana Supr. Ct., 
 
 1841-46. 13 vols. 
 Robinson (M. M. ) . See Louisiana Annual. 
 Robinson (T.). See California. 
 Robinson (William). Admiralty, time of Lush- 
 
 Ington, 1838-50. 3 vols. Vol. 3, parts 1 iSc 3. 
 Rodman (John). See Kentucky. 
 Rogers (Daniel). The City Hall Recorder, Cases 
 
 in various Cts. in New York City, especially 
 
 Ct. of Sessions, 1816-31. 6 vols. 
 RoUe (Henry). K. B., 1614-35. 3 vols. 
 Romilly (Edward). Chancery Notes of Cases 
 
 from the MSS. of Sir Samuel Romilly, 1773- 
 
 85. 1 part. 
 Root (Jesse) . Superior Ct. of Connecticut and 
 
 Supr. Ct. of Errors, 1764-98. 3 vols. 
 Rose (George). Bankr. Cas., 1810-16. 3 vols. 
 Ross (George). Leading Commercial Cases in 
 
 England and Scotland. 3 vols. 
 Rotull Curiae Regis. K. B., 1194^-99. Edited 
 
 by Francis Palgrave. 
 Eowe (Richard R.). Pari, and Military Cas., 
 
 1708-1833. 1vol. 
 
 Rowell (John W.). See Vermont. 
 Ruffin& Hawks. See Hawks (F. L.). 
 Eunnells (John S.). See Iowa. 
 Russell (James). High Court of Ch., time of 
 Eldon, 1833-39. 5 vols. 
 
 Russell (Benj.) & Chesley (S. A.). Supr. Ct. 
 of Nova Scotia, 1875-79. 3 vols. 
 
 Russell (Benj.) & Chesley (S. A.). Supr. Ct. of 
 Nova Scotia, Eq. Cases, 1873-78. 1 vol. 
 
 Ifiissell (Benj.) & Geldert (I. M.). Supr. Ct. of 
 Nova Scotia, 1879-80. 1 vol. 
 
 Russell (James) & Mylne (J. W.). Court 
 of Ch., time of Lyndhnrst, 1839-33. 2 vols. 
 
 Russell (William 0.) &Eyan (Edward). Crovra 
 Cases reserved and decided by the Twelve 
 Judges of England, 1799-1824. 1 vol. 
 
REPORTS 
 
 670 
 
 REPORTS 
 
 Kyan (Edward) & Moody (William). Nisi 
 Prius Cases in the K. B. and C. P. and on the 
 Western and Oxford Circuits, 1833-86. 1 vol. 
 
 Salkeld (William). K. B., Ch., C. P., and 
 Exch., 1 Will. III. to 10 Anne. 3 Yole. The 
 third volume, having been published from 
 notes less carefully prepared than the first two, 
 is not accounted as of the highest authority. 
 
 San Erancisco Law Journal, 1878. 1 vol. 
 
 Sandford (Lewis H.). See N. T. Superior Ct. 
 
 Sandford (Lewie H.). Vice-Chancellor's Decis- 
 ions, New York Oh., 1843-47. 4 vole. 
 
 Sanford (John W. A.). See Alabama. 
 
 Saratoga Chancery Sentinel, 1841-47. 6 vols, in 1. 
 
 Saunders (Sir Edmund). K.B.,166&-73. Svols. 
 
 Saunders (Thomas W.) & Cole (Henry T.). 
 Bail Court Keports, 1846-48. 3 vols. 
 
 Saunders (T. W.) & Macrae (D. C). English 
 County Cts., 1852-57. 2 vols. 
 
 Sauese (Matthew R.) & Scully (Vincent). Rolls 
 Court in Ireland, 1835-40. 1 vol. 
 
 Saville (Sir John). C. P. and Exch., 1580-94. 
 This book, says Wallace (Report. 197), ap- 
 pears to be in the condition of Pope's " most 
 women," and to have no character at all. I 
 have not found a word upon it, either of cen- 
 sure or of praise. 
 
 Sawyer (L. S. B.). U. S. Cir. Ct., Ninth Cir., 
 1870-79. 5 vols. 
 
 Saxton (N.). See New Jersey. 
 
 Sayer (Joseph). K. B., 1751-56. 1vol. "An 
 inaccurate reporter." 1 Sugd. Vend. 80. 
 
 Scammon (J. Young). See Illinois. 
 
 Schmidt's (Gustavus) Law Journal, New Or- 
 leans, 1841-42. 1 vol. 
 
 Schoales (John) &Lefroy (Thomas). Irish Ch., 
 time of Lord Redesdale, 1802-07. 2 vols. 
 
 Schuylkill Legal Record. Pottsville, Pa., 1879- 
 82. 3 vols. 
 
 Scotch Court of Session. See Session Cases. 
 
 Scotch Exchequer Cases, 1840-50, by W. H. 
 Lizars. 
 
 Scott (John). C. P. and Exch. Chamb., 1834^ 
 
 40. 8 vols. 
 Scott (John). New Reports, C. P. and Exch. 
 
 Chamb., 1840-45. 8 vols. 
 Scottish Jurist. Edinburgh, 1829-73. 46 vols. 
 Scottish Law Journal and Sheriff Court Record, 
 
 1858-61. 3 vols. 
 
 Scottish Law Magazine and Sheriff Court Re- 
 porter, 1861-67. 6 vole. 
 
 Scottish Law Reporter. Edinburgh, 1865-81. 
 
 19 vols. 
 Searie (R.) & Smith (J. C). English Probate, 
 
 Divorce, and Matr. , 1859-60. 1 vol. of 160 pp. 
 Sebastian (L. B.). A Digest of Cases on Trade- 
 Marks, etc. London, 1879. 
 Sedgwick (H. D,). Leading Cases on the Law 
 
 of Damages, 1878. 1 vol. 
 Seigniorial Reports. ' Quebec, 1856. Svols. (A. 
 
 &B.). In English and French. • 
 
 Selden (Henry R.). Notes of Cases. New 
 
 York Ct. of App., 1851-52. 1 vol. 
 Select Cases in Chancery, 1724r-3S. 1 vol. 
 Select Cases. ■ Newfoundland. See Tucker. 
 Select Cases. New York, See Yates. 
 Select Cases relating to Evidence, 1698-1733. 2 
 
 vols. 
 
 UtoIs. 
 
 , chiefly Settl. Cas., 1710- 
 
 Select Cases tempore Napier. See Drury ( W B ^ 
 
 Select Cases with Opinions. London 1825 
 
 Select Chancery Cases. High Court of Ch 
 
 Containing the great cases of the Duke of 
 
 Norfolk, and of the Earls of Bath and Mon 
 
 tague. (This is part 3 of Chancery Cases and 
 
 is usually bound with parts 1 & 2). ' 
 
 Select Law Cases. (From the Eepoits anfl 
 
 , Year Books.) London, 1641. ^ *"* 
 
 Select Reports. Calcutta. Sudder Ct« itoil 
 1848. 7 vols. >«;um- 
 
 Selwyn (W.) & Barnewall (R. V.). The first 
 part of Barnewall & Alderson is sometimes so 
 cited. 
 
 Sergeant (Thomas) & Rawle (William. Jr \ 
 Peuna. Supr. Ct., 1814-28. 17 vols. 
 
 Session Cases. Cjses in the Scotch Ct. of 
 Sessions, 1821-38. 16 vols. Cited as " Shaw 
 and Dunlop," or simply " Shaw." 
 
 Session Cases. New Series. 1838-62. 24 vols 
 Cited as " Dunlop, Bell & Murray," or simply 
 "Dunlop." 
 
 Session Cases. Third Series. 1862-73. 
 Cited as " Macphereon." 
 
 Session Cases. Fourth Series. 1874-80. 7 vols 
 
 Cited as " Rettie." 
 Sessions Cases. E. B., 
 
 48. 3 vols. 
 
 Settlement Cases. 1710-30. 1 vol. 
 
 Sevestre. Calcutta High Ct., Grig. Side. 2 vols. 
 (8 and 9). 1866. 
 
 Sevestre. Select Cases. Calcutta Cts., 1811-73, 
 
 13 vols. 
 Shand (Rohert W.). See South Carolina. 
 Shaw (George B.). See Vermont. 
 Shaw (John). Scotch High Cir. Ct. and Ct. of 
 
 Justiciary, 1848-52. 1 vol. 
 
 Shaw (Patrick). House of Lords Cas. on App, 
 from Scotland, 1821-24. 2 vols. 
 
 Shaw (Patrick). Ct. of Justiciary of Scotlimd, 
 1819-31. 1 vol. 
 
 Shaw (Patrick). Ct. of Temds, Scotland, 
 1821-31. 1 vol. 
 
 Shaw (Patrick) & McLean (Charles H.). Honse 
 of Lords Cas. on App. from Scotland, 1835^, 
 3 vols. 
 
 Shaw (Patrick), Wilson (James), & Conrtenay 
 (W. R.). House of Lords Cas. on App. from 
 Scotland, 1825-35. 7 vols. The first 5 vols, 
 by Shaw & Wilson ; vol. 6 by Wilson, Shaw, 
 McLean, & Courtenay ; vol. 7 by Wilson, Shaw, 
 & McLean. Both these and the preceding Im- 
 ports are cited sometimes as Shaw's App, 
 
 Shaw, Dunlop & Bell. See Session Cases. 
 
 Shaw (William G.). See Vermont. 
 
 Sheldon. See Buffalo Superior Court Boports. 
 
 Shepherd (J. W.). Select Cases. Supr. Ct.of 
 Alabama, 1861-63. 1 vol. 
 
 Shepherd (J. W.). See Alabama, New Series, 
 
 Shepley (John). See Maine. 
 
 Sheppard. Select Cases on Slander. 
 
 Shipp (W. M.). See North Carolina. 
 
 Shirley (J. M.). See New Hampshire. 
 
 Shower (Sir Bartholomew). Cases in Parlia- 
 ment, 1694r-96. 1 vol. 
 
 Shower (Sir Bartholomew). K. B.,30 Car.n. 
 to 5 W. & M. 3 vols. The second Tolnme is 
 first in point of time. 
 
 Slckels (H. E. ) . See New Y(*k Ct. of App. 
 
KEPOKTS 
 
 571 
 
 REPOETS 
 
 Siderfln (Tliomas). K. B., C. P., and Exeh., 
 1657-70. 1vol. 
 
 Slmonds (Wm.E.). Eeports on Patents, con- 
 taining all the reported decisions of the U.S. 
 Cts. and the Patent Office to 1874. 1 vol. 
 
 Simons (Nicholas). High Ct. of Ch., 1826-53. 
 
 17 vols. 
 
 Simons (N.). New Series. High Ct. of Ch., 
 1850-52. a vols. 
 
 Simons (N.) & Stuart (John). High Ct. of 
 Ch., 1822-26. 2 vols. 
 
 Sinde Sudder Courts. India. (By E. West). 
 1873. 1vol. 
 
 Sltillman. New York Police Eeports, 1830. 1 
 vol. 
 
 Skinker (Thomas K.). See Missouri. 
 
 Skinner (Robert). K. B., 1681-98. 1vol. 
 
 Slade (Wm.). See Vermont. 
 
 Smale (John) & GiflTard (J. "W. de L.). High 
 Ct. of Ch., 1852-57. 3 vols. 
 
 Smedes (W. C.) & Marshall (T. A.). Missis- 
 sippi Superior Ct. of Ch. , 1848. 1 vol. 
 
 Smedes & Marshall. See Mississippi. 
 
 Smith. Condensed Alabama Eeports, 1820-39. 
 
 18 vols, in 5. 
 
 Smith (Abram D.). See Wisconsin. 
 
 Smith (E. B.). See Maine. 
 
 Smith (E. D.). C. P. in New York City, 1850- 
 
 55,1858. 4 vols. 
 Smith (E. Peshine). See New York Ct. of 
 
 App. 
 Smith (F. 0. J.). Circ. Cts.-Martial, Maine, 
 
 1827-31. 1vol. 
 Smith (Jeremiah) . Super. & Supr. Cts. , New 
 
 Hampshire, 1802-09, 1813-16, from MSS. of 
 
 Jeremiah Smith. 
 Smith (John P.). K. B. and Ch., 1803-06. 3 
 
 vols. See Wallace, Report. 531. 
 Smith (John W.). Leading Cas. on various 
 
 Branches of the Law. 
 Smith (P.F.). See Pennsylvania State. < 
 
 Smith (R. McP.). See Helskell. 
 Smith (Thomas L.). Indiana Supr. Ct., 1848- 
 
 49. ivol. 
 Smith (Chaunoey) (fcBates (S. E.). Cases con- 
 cerning Railways in the U. S. Supr. Ct. and 
 
 the Cts. of the several States. 3 vols. 
 Smith (Thomas B. C.) & Batty (Espine). K. 
 
 B. of Ireland, 1834-25. 1 vol. 
 Smythe (Hamilton). C. P. and Exch. Chamb. 
 
 in Ireland, 1839-40. 1 vol. 
 Sneed. See Kentucky Decisions. 
 Sneed (John L. T.). Tennessee Supr. Ct.,1853- 
 
 58. ^Tols. 
 Solicitors' Journal and Reporter. London, 1857- 
 
 81. 25 vols. 
 
 Southard (Samuel L.). New Jersey Supr. Ct., 
 
 1816-20. 3 vols. 
 Southerland Weekly Reporter. Calcutta High 
 
 Ct., Orig. Side, 1864 to date. 
 Southerland Weekly Eeports. Calcutta High 
 
 Ct., Orig. Side, 1863-64. 1 vol. 
 
 South Carolina Supr. Ct., 1868-81. 15 vols. 
 Vol. 1-10, 1868-78. J. S. G. Richardson. 
 
 11-15, 1877-81. Robert W. Shand. 
 See Bailey ; Bay ; Brevard ; Cheves ; Consti- 
 tutional ; Desaussure ; Dudley ; Harper ; 
 Hill ; M'Cord ; M'MuUan ; Nott & M'Cord ; 
 Rice ; Richardson ; EUey : Spears ; Strob- 
 hart. 
 
 South Carolina Law Journal. See Carolina Law 
 Journal. 
 
 Southern Law Journal. Tuscaloosa, Ala., 1878- 
 79. 2 vols. Monthly. 
 
 Southern Law Journal and Eeporter. Nashville, 
 Tenn., 1879-80. 2 vols. Monthly. Super- 
 seded the Southern Law Journal and the Ten- 
 nessee Legal Eeporter. Vol. 2 is entitled 
 Southern Law Journal. 
 
 Southern Law Eevlew. Nashville, Tenn., 1872- 
 74. 3 vols. Quarterly. 
 
 Southern Law Eevlew. New Series. St. Louis, 
 Mo., 1875-82. 7 vols. Bi-monthly. 
 
 Southwestern Law Journal and Eeporter. Nash- 
 
 , ville, Tenn., 1844. 1 vol. 
 
 Spankie. See North Western Provinces. 
 
 Spaulding ( J. W. ) . See Maine. 
 
 Spears (E. H.). South Carolina Ct. of App., 
 Eq.. Cas., 1842-44. 1 vol. 
 
 Spears (R. H.). South Carolina Ct. of App., 
 Law Cas., 1843-44. 2 vols. 
 
 Special and Selected Law Cases to 1641. 1 vol. 
 
 Spencer (Robert D.). See New Jersey. 
 
 Spencer (W. A.). See Minnesota. 
 
 Spinks (Thomas). Arches and 'Prerogative 
 Cts. of Canterbury, Consistory Ct. of London, 
 High Ct. of Admiralty, and Adm. Prize Ct., 
 1853-55. 2 vols. 
 
 Spinks (Thomas). Prize Cas. English Adm., 
 1854-56. 1 vol. of 346 pp. 
 
 Spooner (Philip L.). See Wisconsin. 
 
 Spottiswoode's Common Law Eeports. English 
 Common Law Cts., 1853-55. 3 vols. Re- 
 ported by various hands. Published by Spot- 
 tiswoode. 
 
 Spottiswoode's Equity Eeports. English Ct. of 
 Ch. and in the House of Lords on App., 1853- 
 55. 3 vols. See Equity Eeports. Eeported 
 by various hands. Published by Spottis- 
 woode. 
 
 Spragne (Peleg). Decisions of, in Admiralty 
 ' and Maritime Causes in the U. S. Dist. Ct. for 
 the Massachusetts Dist., 1841-64. Vol. 1 by 
 F. E. Parker ; vol. 3 by John Lathrop. 
 
 Squarey (F. F.). Judgments in Shipping Cas- 
 ualties, delivered by the Wreck Commis- 
 sioner, 1876-SO. 1 vol. 
 
 Stair (Sir James Dalrymple of). Lords of 
 Council and Sess., 1661-81. Often referred to 
 as Dalrymple. 
 
 Stanton (Edwin M.). See Ohio. 
 
 Star Chamber Cases. Showing what Cases pro- 
 perly belong to the cognizance of that Ct. 
 1 vol. Lately reprinted. 
 
 Starkle (Thomas). Nisi Prius in K. B., C. P., 
 and on the Circ., 1814r-21. 3 vols. Vol. 3 
 contains only 18S pp. 
 
 State Trials. See Hargrave ; Howell. 
 
 Stewart (George N.). See Alabama. 
 
 Stewart & Porter. See Alabama. 
 
 Stewart (James) . Vice Admiralty, Nova Scotia, 
 1802-13. 1 vol. 
 
 Stewart (John H.). See New Jersey, Equity, 
 Stiles (E. H.). See Iowa. 
 Stookett (J. S.). See Maryland. 
 Stockton (John P.) . See New Jersey; 
 
 Story (W.W.). TJ. S. Circ. Ct., First Circ., 
 
 1839-45. 3 vols. 
 Stover (E. M.). See Howard (N.). 
 
REPORTS 
 
 572 
 
 REPORTS 
 
 Strange (Sir John). Ch., K. B., C. P., and 
 Exch. 2 vols. Authoritative, though too 
 brief in the style of reporting. Mr. Nolan, in 
 1795, published a new edition, which has ren- 
 dered Strange more valuable than he was. 
 Wallace, Report. 430. 
 
 Strange (Sir Thomas). Recorder's Ct. and 
 Supr. Ct. at Madras, 1798-1816. 3 vols. 
 
 Stringfellow (B. F.). See Missouri. 
 
 Strobhart (James A.). South Carolina Ct. of 
 App., Eq. Cas., 1846-50. 4 vols. 
 
 Strobhart (James A.). South Carolina Ct. of 
 App., Law Cas., 1846-50. 5 vols. 
 
 Stuart (George O.). K. B. and Privy Council 
 (with a few Admiralty Cases) in Lower 
 Canada, 1810-35. 1 vol. 
 
 Stuart (Geo. 0.). Vice-Admr. Ct., Lower Can- 
 ada, 1836-56. 1 vol. 
 
 Stuart (Geo. 0.) . Vice-Adm. Ct., Quebec, 1859- 
 74. 1 vol. 
 
 Stuart (B.), Milne & Peddie. Scotch Courts, 
 mainly Session, 1851-53. 3 vols. Usually 
 cited as " Stuart." 
 
 Style ("William). K. B., "now Upper Bench," 
 1646-55. Printed from a genuine manuscript, 
 and esteemed. 
 
 Sudder Dewanny Adawlut Reports. Bombay, 
 1830-60, 3 vols. 1857, 4 voU. 1861-63, 4 vols. 
 
 Sumner (Charles). U. S. Circ. Ct., First Circ, 
 1829-39. 3 vols. 
 
 Swabey (M. C. M.). High Ct. of Admiralty 
 and Privy Council on App., 1855-59. 1 vol. 
 See, also, Deane & Swabey. 
 
 Swabey (M. C. M.) & Tristram (T. H.). Pro- 
 bate and Divorce and Matrimonial Causes, 
 1858-65. 4 vols. 
 
 Swan (William G.). Tennessee Supr. Ct.i 
 1851-53. 2 vols. 
 
 Swanston (Clement T.). High Ct. of Ch., time 
 of Eldon, 1818-19. 3 vols. 
 
 Sweeny (J. M.). See New York Supr. Ct. 
 
 Taylor (Thomas) 
 
 1823-27. 1vol. 
 Taylor & Bell. Supr. Ct. 
 
 3 vols. 
 
 Upper Canada, K. B. 
 Calcutta, 184»-53, 
 
 Temple (Leofric) & Mew (Georsel 
 Crim. App., 1848-51. 1 vol. 
 
 Cts. of 
 
 Tennessee. See Baxter; Coldwell ; Cooke' 
 Haywood; Head; HeiskeU; Hill; Hum' 
 phreys ; Lea ; Martin & Terger ; Meigs ; Over 
 ton; Peck; Sneed; Swan; Tennessee Chan, 
 eery; Terger. 
 
 Tennessee Chancery Reports. Ct. of Ch bv 
 Wm. F. Cooper, Chancellor, 1872-78. 3 voig. 
 
 Tennessee Legal Reporter. Nashville Tenn 
 1877-79. 3 vols. Weekly. ' 
 
 Term Reports. King's Bench, 1785-1800. 8 
 vols., by Charles Durnford & Edward H. Eaet. 
 
 Terrell (Alex. W.). See Texas. 
 
 Terrell & Walker. See Texas. 
 
 Texas. Supreme Ct., 1846-81. 65 vols 
 Vol. 1-3, 1846-48. James Webb & 
 
 4-10, 
 11-21, 
 33-34, 
 
 1849-53. 
 1853-58. 
 1859-60. 
 
 25, 1860. 
 
 25,Supp.l860. 
 36-37, 1861-65. 
 
 28-31, 
 32-37, 
 38-51, 
 
 1866-69. 
 1869-72. 
 1872-79. 
 
 53-55, 
 See Robards. 
 
 Thomas H. Duval. 
 Oliver C. Hartley. 
 O.C.&R.K. Hartley. 
 George P. Moore & 
 
 Richard S. Walker. 
 Richard 8. Walker. 
 George W. Paschal. 
 Chas. L. Robaids & 
 
 A. M. Jackson. 
 George W. Paschal, 
 E. M. Wheelock. 
 Alex. W. Terrell & 
 
 Alex. S. Walker. 
 Alex. W. Terrell. 
 
 See National Bank Cajei ; 
 
 Sweet (G.). Cas. relating to Marriage Settle-i!^""''^ tjTx^"' ^^i^^'?'''"^ ^'"'"J' 
 ments, 1840. 1vol. jThomas (E. A.). See Wyommg. 
 
 Swinton (Archibald) . High Ct. and Clrc. Cts. 
 of Justiciary in Scotland, 1835-41. 3 vols. 
 
 Syllabi, The. St. Paul, Minn., 1876-77. 1 vol. 
 Weekly. Succeeded by the Northwestern Re- 
 porter. 
 
 Syme (David) . High Ct. of Justiciary in Scot- 
 land, 1826-29. 1 vol. 
 
 Ch., 1829-30. 1 vol. 
 
 U. S. Cir. Ct., Dist. of Mary- 
 
 1 vol., reported by James M. 
 
 Tamlyn (John). 
 
 Taney (R. B.). 
 land, 1836-61. 
 Campbell. 
 
 Tanner (Gordon). See Indiana. 
 
 Tarrant. See North Western Provinces. 
 
 Tappan (Benjamin). Ohio C. P., Fifth Cir., 
 1816-19. 1vol. 
 
 Taunton (William P.). C. P. and other Cts., 
 1807-19. 8 vols. The eighth volume of Taun- 
 ton is not very highly esteemed, having been 
 made up from his notes and not supervised 
 by him. Wallace, Report. 533, note ; 9 Lond. 
 Law Mag. 339. 
 
 Taylor (6.). Calcutta Supr. Ct., 1847-48. 1vol. 
 
 Taylor (John L. ) . North Carolina Superior Cts. , 
 1798-1802. 1 vol. Sometimes cited as North 
 Carolina Term, and sometimes as 3 North Caro- 
 lina Law Repository. 
 
 1879-81. 
 (C. L.) ; Texas Ct. of App. 
 Texas Ct. of App., Criminal Cas., 1876-82. 11 
 vols., by A. M. Jackson & A. M. Jackson, Jr. 
 Texas Law Journal. Tyler, Texas, 1877-81. 4 
 
 vols. Weekly. 
 Thacher (Peter 0.). Boston Municipal Ct., 
 Orim. Cas., 1833-43. 1 vol., by H. Woodman. 
 
 Thompson (Isaac G.). 
 American Reports. 
 
 Thompson (Isaac G.) & Cook (Kobley D.), 
 New Tork Supr. Ct., 1873-75. 6 vols, 
 
 Thompson (R. A.). See California. 
 
 Thomson (James). Decisions of Supr. Ct, 
 Nova Scotia, 1834-51. 3 vols. 
 
 Thomson (James). Supr. Ct., Nova Scotia, 
 1856-59. 1 vol. 
 
 Thornton (Thomas). See Notes of Cases. 
 
 Tiffany (Joel). See New Tork Ct. of App. 
 
 Tobey (John F.) . See Rhode Island. 
 
 Tomlin (H. E.). Cas. on Election Evidence, 1796, 
 
 Tothill (William). Ch. Cas., 1559-166i. Ivol. 
 
 Townsend (W. C). Modern State TrialB, 37 
 Vict. 3 vols. 
 
 Transcript Appeals. The File of Opinions hi 
 Cas. before the New Tork Ct. of App., Janu- 
 ary, 1867, to June, 1868. 7 vols, in i. 
 
 Transcript. See Morrison's Transcript. 
 
 Treadway. See Constitutional. 
 
 Truman (J. H.) . See American Railw. Reports, 
 
 Tucker (G. J.). Surrogate's Ct. of New Tork 
 County, 1864-69. 1 vol. 
 
 Tucker (R. A.). Select Cas., Newfoundland, 
 1817-38. 1vol. 
 
REPORTS 
 
 578 
 
 REPORTS 
 
 Tudor (0. D. ) • Leading Cas. on Mercantile and 
 
 Maritime Law, 1873. 8 vols. 
 Tudor(0. D.). Leading Cas. on Real Property, 
 
 etc., 1879. a vols. 
 Tupper (J. S.). See Upper Canada App. Rep. 
 Turner (George) & Russell (James) . High Ct. 
 
 of Oh., time of Eldon, 1833-34. 1 vol. 
 Turner (D.B.). See Arkansas. 
 Tuttle (C. A.). See California. 
 Tnttle & Carpenter. See California 
 Tyler (Royall). Vermont Supr. Ct., 1800-03. 
 
 a vols. See Wallace, Report. 589. 
 Tyng (D. A.). See Massachusetts. 
 TVrwhitt (Robert P.). Exch. and Exch. 
 
 Chamb., 1830-35. 5 vols. 
 Tyrwhitt (R. P.) & Granger (Thomas C). 
 
 Exch. and Exch. Chamb. , 1835-36. 1 vol. 
 United States. Supreme Ct., 1790-1883. 103 
 vols. 
 Vol. 1-4, 1790-1800. A. J. Dallas. 
 5-13, 1800-15. Wm. Cranch. 
 14-25, 1816-27. Henry Wheaton. 
 26-41, 1827-43. Richard Peters. 
 43-65, 1843-60. Benj. C. Howard. 
 66-67, 1861-62. J. S. Black. 
 68-90, 1863-74. John W. Wallace. 
 91-103, 1875-80. Wm. T. Otto. 
 Those by Otto are usually cited as 91 U. S. 
 
 etc., the others by the reporter's name. 
 (There is a 17th vol. of Peters, which, not 
 being official, is not included in the regular 
 
 United States Jurist. Washington, D. C, 1871- 
 
 73. 3 vols. 
 United States Law Intelligencer and Review. 
 
 Providence and Philadelphia, 1829-31. 3 vols. 
 
 Edited by J. K. Angell. 
 United States Law Journal. New Haven and 
 
 New York, 1833-36. 3 vols. 
 United States Monthly Law Magazine. New 
 
 York, 1850-51. 4 vols., by John Livingston. 
 Upper Canada App. Reports. Ct. of App., 
 
 1876-80. 5 vols., by J. S. Tupper. 
 Upper Canada C. P., 1850-81. 33 vols. 
 Upper Canada Ch. Reports. See Grant (Alex.). 
 Upper Canada Error & App. Reports, 1846-66. 
 
 3 vols., by Alex. Grant. 
 Upper Canada Jurist. See Upper Canada Q. B., 
 
 Old Series. 
 Upper Canada Law Journal. Toronto, 1855-64. 
 
 10 vols. 
 
 Upper Canada Law Journal, New Series. To- 
 ronto, 186.5-83. 18 vole. Monthly to vol. 16, 
 then fortnightly. From vol. 4 this is called 
 Canada Law Journal. 
 
 Upper Canada Q. B., 1844-81. 46 vols. 
 
 Upper Canada Q. B., Old Series, 1831-44. 6 vols. 
 (The first two vols, are entitled U. C. Jurist). 
 
 Upper Canada Practice Ct. and Chamb. Reports, 
 1850-79. 7 vols. 
 
 Utah. Supr. Ct. of Utah Territory, 1850-80. 
 3 vols., by Albert Hagan. 
 
 Van Ness (William P.). Prize Cas. In the U. S. 
 Dist. Ct., New York, 1813. 1 vol. 
 
 Vaughan (Sir J.). C. P., 1665-74. 1 vol. 
 Edited by Edward Vaughan. Containing some 
 cases from his own perfected manuscript, very 
 well reported, but some others not fully pre- 
 pared, and not so much esteemed. Vaughan 
 was an interesting character, upon whose 
 merits the author of The Reporters dwells 
 with interest. See page 334. 
 
 Vaux (Richard). Crim. Cas. heard before the 
 
 Recorder of Philadelphia, 1841-45. 1 vol. 
 Veazey (W. G.). See Vermont. 
 
 Ventris (Sir Peyton). K. B., C. P., and Ch., 
 
 1669-90. 1vol. 
 Vermont. Supr. Ct., 1836-81. 53 vols. (Vols. 
 30-35 and 39 contain, also. Decisions in the 
 U. S. Circ. Ct. for the Second Circ). 
 Vol. 1-9, 1826-37. The Judges. 
 10-11, 
 
 p. 451, 1836-39. G. B. Shaw. 
 11, p. 
 453-14, 1839-43. Wm. Weston. 
 15, 1843. Wm. Slade. 
 
 16-23, 1844-51. Peter T. Washburn. 
 24r-26, 1850-54. John F. Deane. 
 27-39, 1854-.57. Chas. L. Williams. 
 30-35, 1856-63. Wm. G. Shaw. 
 36-44, 1863-73. W. G. Veazey. 
 45-52, 1873-80. John W. Rowell. 
 53, 1881. E. F. Palmer. 
 
 See Aikens ; Brayton ; Chipman, D. ; Chip- 
 man, N. ; Tyler. 
 
 Vernon (Thomas). High Ct. of Ch., 1680-1719. 
 3 vols. Vernon was a very eminent chancery 
 lawyer; but his reports were posthumously 
 published from notes found in his study after 
 his death. They were loose, and on that ac- 
 count unsatisfactory and inaccurate. A very 
 highly improved edition was published in 1806, 
 1807, by Mr. Raithby, under the auspices of 
 Lord Eldon. The manuscript reports of Ver- 
 non were the subject of an entertaining chan- 
 cery suit between his widow, his heir-at-law, 
 and his residuary legatee. No one of the par- 
 ties, however, succeeded ; and the case was 
 ended by the lord chancellor's keeping the 
 manuscript himself. See Wallace, Report. 
 493. 
 
 Vernon (G. W.) &Scriven (J. B.). King's Ct. 
 
 at Dublin, with a few Cases in the Irish House 
 
 of Lords, 1786-88. 1 vol. 
 Vesey (Francis, Jr.). High Ct. of Ch., 1789- 
 
 1817. 33 vols. Last two vols, are a suppl. by 
 
 Hovenden. The American edition was edited 
 
 by Charles Sumner. 
 Vesey (Francis, Sr.). High Ct. of Ch., time of 
 
 Hardwicke, 1746-56. 2 vols. 
 Vesey (Francis) & Beames (John). High Ct. 
 ' of Ch., time of Eldon, 1812-14. 3 vols. 
 Virgil (Wm. W.). See Maine. 
 Virginia Ct. of App., 1820-31. 1 vol., by Fran- 
 cis W. Gilmer. Usually cited 1 Gilmer, which 
 
 see. 
 
 See, also. Call ; Grattan ; Hening & Muuford ; 
 
 Jefferson ; Leigh ; Munford ; Patton & 
 
 Heath ; Randolph ; Robinson ; Washington ; 
 
 Wythe. 
 
 Virginia Cases. General Ct. , 1789-1836. 3 vols. 
 
 By William Brockenbrough & Hugh Holmes. 
 Virginia Law Journal. Richmond, 1877-82. 6 
 
 vols. Monthly. 
 Vroom (Peter D.). See New Jersey. 
 
 Walker (Henry N.). Michigan Chancery, 1843- 
 
 45. 1 vol. 
 Walker (R. J.). See Mississippi. 
 Walker (R. S.). See Texas. 
 Wallace (H. E.). See Philadelphia. 
 Wallace (John B.). U. S. Cir. Ct., Third Cir. 
 
 " under the organization of President Adams," 
 
 May-Oet. 1801. 1 vol. 
 
 Wallace (J. W.). See U. S. Supreme Court, 
 1vol. 
 
REPORTS 
 
 574 
 
 REPORTS 
 
 Wallace (John William, Jr.). U. S. Cir. Ct., 
 Third Cir:, 1843-62. 3 vols. 
 
 Wallis (John). Irish Ch., 1766-91. 1 vol. 
 
 Warden (Robert Bi)- See Ohio State. 
 
 Warden & Smith. See Ohio State. 
 
 Ware (Ashur). U. S. Dist. & Circ. Cts., Maine 
 Diet., 3 vols. Vol. 1, cases of 1823-39, and the 
 second edition, containing, also, cases of 18.54- 
 55. Vol. 2 (1873) is a reprint of Daveis (cases 
 of 1839-49) ; it is-entitled " 2 Ware" for uni- 
 formity. Vol. 3 (1874), cases of 1853-66. 
 
 Warner. See Northwestern Provinces. 
 
 Washburn (Peter T.). See Vermont. 
 
 Washington (Bushrod) . United States Circuit 
 Court, Third Circuit, 1803-37. 4 vols. 
 
 Washington (Bushrod). Virginia Gt. of Ap- 
 peals, 1790-96. 2 vols. 
 
 Washington Jurist. Washington, D. C, 1834- 
 35. 6 vols. This is a republication of U. S. 
 Supreme Court Cases and English Cases, with 
 a legal newspaper in connection therewith ; the 
 paper contains only 284 pp. 
 
 Washington Law Reporter. Washington, D. C, 
 1874-82. 10 vols. Weekly. Vols. 1-6, and 
 vol. 7 to p. 65, are folio, the rest octavo. 
 
 Washington Territory. Supreme Court, 1854-79. 
 1 vol. by John B. Allen. 
 
 Watts (C. C). See West Virginia. 
 
 Watts (Frederick). Penna. Supr. Ct., 1832-40. 
 10 vols. 
 
 Watts (Frederick) & Sergeant (Henry J.). 
 Penna. Supr. Ct., 1841-44. 9 vols. 
 
 Webb & Duval. See Texas. 
 
 Webb (U. C). See Kansas. 
 
 Webster (Thomas). English Cases on Letters 
 Patent for Inventions, 1603-1854. 2 vols. ; 
 only one part, of 295 pp., of vol. 3 were pub- 
 lished. . 
 
 Weekly Digest. See New York Weekly Digest. 
 Weekly Jurist. Bloomington, 111., 1879-81. 2 
 
 vols. Succeeded' the Monthly Jurist. 
 Weekly Law Review. San Francisco, 1855. 3 
 
 numbers. 
 Weekly Law Gazette. Cincinnati, Ohio, 1857- 
 
 69. 4 vols. 
 Weekly Notes of Cases. London, 1866-82. 17 
 
 vols. 
 Weekly Notes of Cases. Philadelphia County 
 
 Cts. and Supr. Ct. of Penna., 1874-82. 12 
 
 vols. 
 
 Weekly Reporter. London. All the Courts, 
 1852-82. 30 vols. 
 
 Weekly Transcript. New York, Jan. 5 to March 
 
 9, 1861. 11 numbers. 
 Weekly Transcript Reports. New York Cts., 
 
 1861. 1vol. 
 Welsby (W. N.), Hurlstone (E. T.), & Gordon 
 
 (J.). See Exchequer. 
 Welsh (Thomas). Irish Registry Cases, 1833- 
 
 40. 1 vol. 
 
 Wendell (John L.). New York Supr. Ct. and 
 Ct. of Errors, 1828-41. 26 vols. 
 
 West (Martin J.). High Court of Ch., 1736-39. 1 
 vol. A book published only of recent time, 
 though from ancient and genuine manuscripts. 
 It is a good work so far as it goes, but un- 
 fortunately. Includes but a short term of 
 Lord Hardwicke's administration in Chancery. 
 
 West (Martin J.) . House of Lords Cases, 1839- 
 
 41. 1vol. 
 
 West Virginia. Supr. Ct., 1863-81. 18vnl. 
 Vol. 1-5, 1863-72. John M. Hagans 
 6-9, 1873-76. Henry M. Math™, 
 10-15,1877-79. Robert White 
 16-18, 1879-81. C. C. Watts. 
 
 Western Jurist. Des Moines, Iowa, 1867-82 lit 
 vols. Monthly. " "" 
 
 Western Law Journal. Cincinnati. Ohin-Sliua 
 53. 10 vols. Monthly. ' """^'""S" 
 
 Western Law Monthly Cleveland.'Ohio, 185»- 
 63 5 vols., only 234 pp. of vol. 5 wer^ pub- 
 lished. "^ 
 
 Western Legal Observer. Quincy, III., jan tn 
 October, 1849. 10 numbers. ■'"'■^■^ 
 
 ''^?Iq^/'5 S^°'^^ P-) ■ '"*« C»8«8 in London, 
 
 IDOO— lo«2^. 1 vol. 
 
 Wpston (William). See Vermont. 
 Wharton (Francis). State Trials of the V 9 
 
 during the administrations of Washington and 
 
 Adams. 1 vol. 
 Wharton (Thomas I.) 
 
 1835-41. 6 vols. 
 Wheaton (Henry). 
 
 volsi 
 
 Pennsylvania Supr. Ct., 
 U. S. Supr. Ct., 1816-37, 13 
 
 Wheeler (Jacob D.). Criminal Cases decided 
 at New York City Hall, 1833-33. 3 vols. 
 
 Wheelock (E. M.). See Texas. 
 
 White (F. T.) & Tudor (0. D.). A Selection of 
 Leading Cases in Equity, 1876. 2 vols, in i. 
 
 White (Robert). See West Virginia. 
 
 Whitman (Charles 8.). Patent Cases in the U, 
 8. Supr. Ct., 1810-74. 2 vols. 
 
 Whittelsey (Charles C). See MisBouri. 
 
 Wightwiek (J.). Exch., 1810-11. 1vol. 
 
 Wilcox (P. B .) . See Ohio. 
 
 Willes (John). C. P., Exch. Chamb., Ch., and 
 House of Lords, 1737-58. 1 vol. Edited by 
 Charles Durnford. Posthumously publiehed, 
 but quite authoritative and useful. 
 
 Williams (C. L.) . See Vermont. 
 Williams (Ephraim). See Massachusetts. 
 Williams (Wm. Peere). See Peere-Williams. 
 Willmore (Graham), WoUaston (F. L.),&DaTf- 
 
 son (H.). K. B., Exch. Chamb., and Bail Ct,, 
 
 1837. 1vol. 
 Willmore (Graham), Wollaston (F. L.), & 
 
 Hodges (W.). Q. B., Exc^. Chamb., and 
 
 Bail Ct., 1838-39. 2 vols., only 128 pp. of 
 
 vol. 3 were published. 
 
 Wilmot (Sir J. Eardley) . Notes of Oases decided 
 by, in the different Courts, 1757-70. 1 vol. 
 
 Wilson (George). K. B. and C. P. 3 vols. 
 Vol. 1, 16-26 Geo. II., K. B. 
 
 36 Geo. II.-10 Geo. HI., C. P. 
 
 See Oregon. 
 
 Chancery, 1818, 1819. 2 vols, 
 
 Exch. Chamb., 1815-17. Ivol. 
 
 3,3, 
 Wilson (J. G.). 
 Wilson (John). 
 Wilson (John), 
 of 133 pp. 
 
 Wilson (James) & Shaw (Patrick). House of 
 
 Lords Cases on App. from Scotland, 182S-S4. 
 
 7 vols. 
 Wilson (0. M.). Superior Ct. at Indianapolis, 
 
 Indiana. 1871-74. 1vol. 
 Winch (Sir Humphry). C. P., 1621-25. ItoI. 
 
 Relating to declarations. 
 Winston (P.). Supr. Ct. of North Carolina, 
 
 1863-64. 1vol. 
 
 Winston (P.). Eq. Cases, Supr. Ct. of North 
 Carolina, 1864. 1 vol. 
 
REPORTS 
 
 675 
 
 REPRESENTATION 
 
 Wisconsin. - Supreme Court, 1853-83. 53 vols. 
 
 Vol. 1-11, 1853-60. A. D. Smith. 
 
 12-15, 1860-62. Philip L. Spooner. 
 16-53, 1862-82. 0. M. Conover. 
 
 See Burnett; Chandler; Pinuey. 
 Wisconsin Legal News. Milwaukee, Wis., 
 
 1878-82. 4 vols. 
 Withrow (Thomas F.). See Iowa. 
 Withrow (Thomas F.). American Corporation 
 
 Cases (Private Corporations), from 1868. 4 
 
 vols. Vols. 3 and 4 by H. Binmore also. Vol. 
 
 5 continued by H. Binmore. 
 Wolferstan (F. S. P.) & Bristowe (S. B.). 
 
 Parliamentary Election Cases, 1859-64. 1 vol. 
 Wolferstan (F. S. P.) & Dew (Edw. L'Estrange) . 
 
 Parliamentary Election Cases, 1857-58. 1 vol. 
 WoUaston (F. L.). Bail Ct. and Practice Cases, 
 
 1840-41 ; 5 parts, 208 pp. ; no title-page or in- 
 dex were published. 
 Wood (Hutton). Tithe Cases in the Exch. 
 
 Chamb., 1650-1798. 4 vols. 
 Woodbury (C. L.) & Minot (George). U. S. 
 
 Cir. Ct., First Cir., 1845-47. 3 vols. 
 Woodbury & Richardson. See New Hampshire. 
 Woods (Wm. B.). U. S. Cir. Ct., Fifth Cir., 
 
 1870-77. 3 vols. 
 Woodman (H.). See Thacher (Peter 0.). 
 Wool worth (J. M.). See Nebraska. 
 Woolworth (J. M.). U. S. Cir. Ct., Eighth Cir., 
 
 1863-69. 1vol. 
 
 Wordsworth (C. F. F.). Digest of Election 
 
 Cases, 1834. 1 vol. 
 Wright (J. C). Ohio Supr. Ct., 1831-34. 1vol. 
 Wright (Robert E.) . See Pennsylvania State. 
 Wynne. Bovill Patent, English, 1873. 1 vol. 
 Wyoming. Supr. Ct. of Wyoming Territory, 
 
 1870-78. 1 vol., E. A. Thomas. 
 Wythe (George). Virginia Ch., 1788-99. 1vol. 
 
 Yates. See Select Cases. 
 
 Tear-Books. Cases in Different Courts, 1307- 
 
 1537. 11 vols. 
 
 Part I. By Maynard. Exch. (Memoranda 
 
 Scaccarii),2-29 Edw. I., K. B., C. P., 
 
 and Exch., 1-19 Edw. II. 
 
 II-IV. K. B. and C. P., 1-50 Edw. III. 
 
 V. Liber Assisarum. 
 
 VI. K. B. and C. P., 1 Hen. IV.-IO 
 Hen. V. 
 
 VII., VIII. K. B. and C. P., 1-39 Hen. 
 VI. 
 
 IX. Annals K. B. and C. P., 1-33 Edw. 
 IV. 
 
 X. K. B. and C. P., 5 Edw. IV. 
 
 XI. K. B. and C. P., 1 Edw. V.-27 Hen. 
 VIII. See Wallace, Report. 73. 
 
 Tear-Books of Edward I. K. B., 1292-1307. 5 
 vols. Edited and translated by A. J. Hor- 
 wood. Published by the authority of the 
 Lords Commissioners of the Treasury, under 
 the direction of the Master of the Rolls. 
 
 Yeates (Jasper). Penna. Supr. Ct., 1791-1808. 
 4 vols. See Wallace, Report. 585. 
 
 Telverton (Sir Henry). K. B., 1603-13. 1 vol. 
 Excellent reports of a first-rate old-school 
 English lawyer, and admirably edited in 
 America by Judge Metcalf. See Wallace, Re- 
 port. 211, where a full biographical sketch of 
 the giited and unfortunate reporter is given. 
 
 Terger (George 8.). Tennessee Supr. Ct., 
 1818-37. 10 vols. 
 
 Young (A.). Digest of Maritime Law Cases 
 and Salvage Awards, 1837-60. 1 vol. 
 
 Young (George B.). See Minnesota. 
 
 Younge (Edward). Exch. Eq. Cas., 1830-33. 
 
 1 vol. 
 Younge (Edward) & Collyer (John). Exch. 
 
 Eq. Cas., 1834-42. 4 vols. 
 
 Younge (Edward) & Collyer (John). High 
 Court of Ch., 1841-44. 3 vols. 
 
 Younge (Edward) & Jervis (J.). Exch. and 
 Exch. Chamb., 1826-30. 
 
 Zabriskle (A. O.). See New Jersey Law. 
 Zinn (P. ) . Leading Cases on Trusts, 1873. 1 vol. 
 
 REPRESENT. To exhibit, to expose 
 before the eyes. To represent a thing is to 
 produce it publicly. Dig. 10. 4. 2. 3. 
 
 REPRESENTATION. In Insurance. 
 
 The stating of facts by either of the par- 
 ties to a policy of insurance, to the other, 
 whether in writing or orally, expressly or by 
 plain implication, preliminary and in refer- 
 ence to making the insurance, obviously tend- 
 ing to influence the other as to entering into 
 the contract. 12 Md. 348 ; 11 Cush. 324 ; 2 
 N. H. 551 ; 6 Gray, 221. 
 
 A statement incidental to the contract, rela- 
 tive to some fact having reference thereto, 
 and upon the faith of which the contract is 
 made. May, Ins. 190. It may be affirma- 
 tive or promissory. 
 
 The distinction between representation and 
 warranty must be carefully observed ; the lat- 
 ter is a part of the contract, the former is but 
 a statement incidental thereto. In an action 
 on the policy the plaintiff must show facts 
 sufficient to bring him within the terms of the 
 warranty, while the burden of proving the 
 untruthfuliiess of representations, if any, is 
 on the defendant. Further, representations 
 need not be strictly and literally complied 
 with, but only in material points ; while in 
 cases of warranty, the question of materiality 
 does notarise; May, Ins. § 183. Represen- 
 tations in writing are, ipso facto, material; 
 4 H. L. C. 484; 98 Mass. 381; 31 Iowa, 
 216. Misrepresentations are material though 
 the fact represented may not relate directly to 
 the risk ; 20 N. Y. 32. 
 
 Doctrines respecting representation and 
 concealment usually have reference to those 
 by the assured, upon whose knowledge and 
 statement of the facts the insurance is usually 
 made; but the doctrine on the subject is 
 equally applied to the underwriter, so far as 
 facts are known to him ; 3 Burr. 1905. 
 _ A misrepresentation though made uninten- 
 tionally ,_ or through mistake, makes the insur- 
 ance void, notwithstanding its being free of 
 fraud; 1 Du. N. Y. 747 ; 18 Eng. L. & Eq. 
 427. 
 
 The material falsity of ^n oral promissory 
 representation, without fraud, is no defence 
 in an action on a policy. If made with the 
 intent to deceive, the policy may be thereby 
 avoided. Promissory representations, reduced 
 to writing and made a part of the contract, 
 become substantial warranties; May, Ins. § 
 182; see 9 Allen, 540. 
 
REPRESENTATION OP PERSONS 576 
 
 REPRISALS 
 
 A substantial compliance with a repre- 
 sentation is sufficient, — the rule being less 
 strict than in ease of a warranty ; 3 Meto. 
 Mass. 114 ; 4 Mas. 439 ; 31 Iowa, 216 ; 34 
 Md. 582; see 98 Mass. 381. The substantial 
 truth of the statement is for the jury, but not 
 its materiality; May, Ins. § 187. 
 
 Insurance against fire and on life rests upon 
 the same general conditions of good faith as 
 maritime insurance ; but in the first two classes 
 the contract is usually based mainly upon 
 statements by the applicant in written replies 
 to numerous inquiries expressly referred to in 
 the policy, which answers are thus made ex- 
 press warranties, and must, accordingly, be 
 strictly true whether their being so is or is not 
 material to the risk. The inquiries are in- 
 tended to cover all material circumstances, 
 subject, however, to the principle, applicable 
 to all contracts, that fraud by either party will 
 exonerate the other from his obligations, if he 
 so elects ; 7 Barb. 570 ; 10 Pick. 535 ; 6 Gray, 
 288 ; 2 Rob. La. 266 ; 24 Penn. 320 ; 3 Md. 
 341; 2 Ohio, 452; 21 Conn. 19; 6 Humphr. 
 176 ; 6 McLean, 324 ; 8 How. 235 ; 2 M. & 
 W. 505. See Concealment ; Misrepre- 
 sentation ; Warranty. 
 
 In Scotch Law. The name of a plea or 
 statement presented to a lord-ordinary of the 
 court of sessions, when his judgment is 
 brought under review. 
 
 REPRESENTATION OF PERSONS. 
 A fiction of the law, the effect of which is to 
 put the representative in the place, degree, 
 or right of the person represented. 
 
 The heir represents his ancestor ; Bacon, 
 Abr. Heir and Ancestor (A) ; the devisee, 
 his testator ; the executor, his testator ; the 
 administrator, his intestate ; the successor in 
 corporations, his predecessor ; and, generally 
 speaking, they are entitled to the rights of 
 the persons whom they represent, and bound 
 to fulfil the duties and obligations which were 
 binding upon them in those characters. 
 
 Representation was unknown to the Ro- 
 mans, and was invented by the commentators 
 and doctors of the civil law. Toullier, Dr. 
 Civ. Pr. liv. 3, t. 1, c. 3, n. 180. See 
 Aylifie, Pand. 397 ; Dalloz, Diet. Succession, 
 art. 4, § 2. 
 
 REPRESENTATIVE. Onewhorepre- 
 sents or is in the place of another. 
 
 In legislation, it signifies one who has been 
 elected a member of that branch of the legis- 
 lature called the house of representatives. 
 
 A representative of a deceased person, 
 sometimes called a " personal representa- 
 tive," or "legal personal representative," is 
 one who is executor or administrator of the 
 person described. 6 Madd. 159 ; 5 Ves. 402. 
 See Personal Representatives. 
 
 REPRESENTATIVE DEMOCRACT. 
 
 A form of government where the powers of 
 the severeignty are delegated to a body of 
 men, elected from time to time, who exercise 
 them for the benefit of the whole nation. 1 
 Bouvier, Inst. n. 31. 
 
 REPRESENTATIVE PEERS. Those 
 who, at the commencement of every new par 
 liament, are elected to represent Scotland and 
 Ireland in the British House of Lords • six- 
 teen for the former and twenty-eight for the 
 latter country. Brown, Die. 
 
 REPRIEVE (from Fr. rcprendw, to take 
 back). In Criminal Practice. The with. 
 drawing of a sentence for an interval of time 
 which operates in delay of execution. 4 Bla' 
 Com. 394. 
 
 It is granted by the favor of the pardoning 
 power, or by the court who tried the prisoner. 
 Reprieves are sometimes granted ex necessi- 
 tate legis ; for example, when a woman is 
 convicted of a capital offence, after judgment 
 she may allege pregnancy in delay of execu- 
 tion. In order, however, to render this plea 
 available, she must be quick with child, q. v., 
 the law presuming — perhaps absurdly enough 
 — that before that period life does not com-, 
 mence in the fcetus ; Co. 3d Inst. 17 ; 1 Hale 
 PI. Cr. 368 ; 2 id. 413 ; 4 Bla. Com. 395. ' 
 
 The judge is also bound to grant a reprieve 
 when the prisoner becomes insane ; 4 Hargr. 
 St. Tr. 205, 206 ; Co. 3d Inst. 4. 
 
 The president, under the constitution, art. 
 II. § 2, has the power to grant reprieves, A 
 reprieve is said to be a withdrawal or with- 
 holding of punishment for a time after convic- 
 tion and sentence, in the nature of astay of ex- 
 ecution. Cooley, Const. 102. See Pardon, 
 
 REPRIMAND. The censure which in 
 some cases a public officer pronounces against 
 an offender. 
 
 This species of punishment is used by le- 
 gislative bodies to punish their members or 
 others who have been guilty of some impro- 
 priety of conduct towards them. The repri- 
 mand is usually pronounced by the speaker. 
 
 REPRISALS. The forcibly taking a 
 thing by one nation which belonged to an- 
 other, in return or satisfaction for an injury 
 committed by the latter on the former, Vat- 
 tel, b. 2, c. 18, s. 342 ; 1 Bla. Com. c. 7. 
 
 General reprisals take place by virtue of 
 commissions delivered to officers and citizens 
 of the aggrieved state, directing them to take 
 the persons and property belonging to the of- 
 fending state wherever found. 
 
 Negative reprisals take place when a nation 
 refuses to fulfil a perfect obligation which it 
 has contracted, or to permit another state to 
 enjoy a right which it justly claims. 
 
 Positive reprisals consist in seizing the per- 
 sons and efiects belonging to the other nation, 
 in order to obtain satisfaction. 
 
 Special reprisals are such as are granted m 
 times of peace to particular individuals who 
 have suffered an injury from the citizens or 
 subjects of the other nation. 
 
 Reprisals are used between nation and na- 
 tion to do themselves justice, when they ciaiP- 
 not otherwise obtain it. Congress have the 
 power to grant letters of marque and reprisw, 
 IF. S. Const, art. 1, 8. 8. cl. 11. See Ut- 
 ters OF Marque. 
 
REPRISES 
 
 577 
 
 REPUDIATION 
 
 Reprisals are made in two -ways, either by 
 embargo, in which case the act is that of the 
 state, or by letters of marque and reprisals, 
 in which case the act is that of the citizen, 
 authorized by the government. See 2 Brown, 
 Civ. Law, 334. 
 
 The property seized in making reprisals is 
 preserved while there is any hope of obtain- 
 in" satisfaction or justice; as soon as that 
 hope disappears, it is confiscated, and then 
 the reprisal is complete ; Vattel, b. 2, c. 18, 
 § 342. See Boyd's Wheat. Int. Law. 
 
 REPRISES. The deductions and pay- 
 ments out of lands, annuities, and the like are 
 called reprises, because they are taken hack : 
 when we speak of the clear yearly value of 
 an estate, we say it is worth so much a year 
 ultra reprises, besides all reprises. 
 
 In Pennsylvania, lands are not to be sold 
 under an execution when the rents can pay 
 the debt and interest and costs in seven years, 
 beyond all reprises. 
 
 REFROBATIOIT. In Ecclesiastical 
 Law. The propounding exceptions either 
 against facts, persons, or things : as to allege 
 that certain deeds or instruments have not 
 been duly and lawfully executed; or that 
 certain persons are such that they are incom- 
 petent as witnesses ; or that certain things 
 ought not, for legal reasons, to be admitted. 
 
 REFROBATUR, ACTION OP. An 
 
 action in Scotch law for the purpose of con- 
 victing a witness of perjury. Bell. 
 
 REPUBLIC. A commonwealth : that 
 form of government in which the adminis- 
 tration of affairs is open to all the citizens. 
 In another sense, it signifies the state, inde- 
 pendently of its form of government. 1 
 TouUier, n. 28, and n. 202, note. 
 
 REPUBLICAN GOVERNMENT. A 
 
 government in the republican form ; a gov- 
 ernment of the people ; a government by rep- 
 resentatives chosen by the people. Cooley, 
 Const. 194. It is usually put in opposition to 
 a monarchical or aristocratic government. 
 But it, is said to be, strictly speaking, by no 
 means inconsistent with monarchical forms ; 
 Cooley, Const. 194; there can be no doubt 
 that in the light of the fact that the Revolu- 
 tion was intended to throw off monarchical 
 forms, a republican form of government 
 in the constitution means a government in 
 which the people choose, directly or indi- 
 rectly, the executive. 
 
 The fourth section of the fourth article of 
 the constitution directs that " the United 
 States shall guarantee to every state in the 
 Union a republican form of government." 
 The form of government is to be guaranteed, 
 which supposes a form already established; 
 and this is the republican form of government 
 the United States have undertaken to protect. 
 See Story, Const. § 1807. 
 
 A republican government, once established, 
 may be endai^ered so as to call for the action 
 of congress: 1. By the hostile action of some 
 YOL. II.— 37 
 
 foreign power, and taking possession of the 
 territory of some state, and setting up a gov- 
 ernment therein not established by the people. 
 2. By the revolutionary action of the people 
 themselves in forcibly rising against the con- 
 stituted authorities and setting the govern- 
 ment aside, or attempting to do so, for some 
 other. In either of the above cases, it will 
 be the duty of the general government to pro- 
 tect the people of the state by the employment 
 of military force. Cooley, Const. 1 96 ; see 
 7 Wall. 700 ; 7 How. 1. 3. Even in strict 
 accordance with the forms prescribed for 
 amending a state constitution, it would be 
 possible for the people of the state to effect 
 such changes as would deprive it of its re- 
 publican character. It would then be the 
 duty of congress to intervene. In any ease 
 there could be no amieal from the decision of 
 congress. Cooley, Const. 196. 
 
 REPUBLICATION. An act done by a 
 testator, from which it can be concluded that 
 he intended that an instrument which had 
 been revoked by him should operate as his 
 will ; or it is the re-execution of a will by the 
 testator, with a view of giving it full force 
 and effect. 
 
 The republication is express when there 
 has been an actual re-execution of it ; 1 Ves. 
 440; 2 Rand. 192; 9 Johns. 312; it is im- 
 plied when, for example, the testator by a 
 codicil executed according to the statute of 
 frauds, reciting that he had made his will, 
 added, " I hereby ratify and confirm my said 
 will, except in the alterations after men- 
 tioned." 3 Bro. P. C. 85. The will might 
 be at a distance or not in the power of the tes- 
 tator, and it may be thus republished ; 1 
 Ves. Sen. 437 ; 1 Ves. 486 ; 4 Bro. C. C. 2. 
 
 The republication of a will has the effect — 
 first, to give it all the force of a will made at 
 the time of the republication : if, for exam- 
 ple, a testator by his will devise "all his 
 lands in A," then revokes his will, and after- 
 wards buys other lands in A, the republica- 
 tion, made after the purchase, will pass all 
 the testator's lands in A; Cro. Eliz. 49S. 
 See 1 P. Wms. 275. Second, to set up a 
 will which had been revoked. See, gener- 
 ally, Will. Exec; Jarm. AVills. 
 
 REFUCIATE. To express in a sufficient 
 manner a determination not to accept a right, 
 when it is offered. 
 
 He who repudiates a right cannot by that act 
 transfer it to another. Bepudiatiou differs from 
 renunciation in this, that by the former he who 
 repudiates simply declares that he will not ac- 
 cept ; while he who renounces a right does so in 
 favor of another. Renunciation is, however, 
 sometimes used in the sense of repudiation. See 
 Eenounce; Renunciation; "Wolff, Inst. § 
 339. 
 
 REPUDIATION. In Civil Law. A 
 term used to signify the putting away of a 
 wife or a woman betrothed. 
 
 Properly, divorce is used to point out the sepa- 
 ration of married persons ; repudiation, to de- 
 note the separation either of married people, or 
 
REPUGNANCY 
 
 578 
 
 REQUISITION 
 
 those who are only affianced. JHvortium est re- 
 pudium et aeparatio maritorum ; repudium est re- 
 mmciatio spontalium, vel etiam est divortium. 
 Dig. 50. 16. 101. 
 
 A determination to have nothing to do with 
 any particular thing : as, a repudiation of a 
 legacy is the abandonment of such legacy, 
 and a renunciation of all right to it. 
 
 In Ecclesiastical Lavr. The refusal to 
 accept a benefice which has been conferred 
 upon the party repudiating. 
 
 REPUGNANCY (Lat. re, back, against, 
 pughare, to fight). In Contracts. A dis- 
 agreement or inconsistency between two or 
 more clauses of the same instrument. In 
 deeds, and other instruments inter vivos, the 
 earliet clause prevails, if the inconsistency be 
 not so great as to avoid the instrument for un- 
 certainty; 2 Taunt. 109; 15 Sim. 118; 2 C. 
 B. 830 ; 13 M. & W. 634. 
 
 In wills, the latter clause prevails, under 
 the same exceptions ; Co. Litt. 112 6 ; Plowd. 
 541 ; 6 Ves. 100 ; 2 My. & K. 149 ; 1 Jarm. 
 Wills, 411 ; see, however, 18 Ch. Div. 17. 
 
 Repugnancy in a condition renders it void ; 
 2 Mod. 285 ; 11 id. 191 ; 1 Hawks, 20 ; 7 J. 
 J. Marsh. 192. And see, generally, 3 Pick. 
 272; 4: id. 54; 6 Cow. 677. 
 
 In Pleading. An inconsistency or dis- 
 agreement between the statements of mate- 
 rial facts in a declaration or other pleading 
 as, where certain timber was said to be for the 
 completion of a house already built ; 1 Salk. 
 213. Repugnancy of immaterial facts, or of 
 redundant and unnecessary matter, if it does 
 not contradict material allegations, will not, 
 in general, vitiate the pleadings; Co. Litt. 
 303 h ; 10 East, 142 ; 1 Chitty, PI. 233. See 
 Steph. Pi. 378. 
 
 REPUTATION (Lat. reputo, to consider) 
 The opinion generally entertained in regard 
 to the character or condition of a person by 
 those who know him or his family. The 
 opinion generally entertained by those who 
 may be supposed to be acquainted with a fact 
 
 . In general, reputation is evidence to prove 
 a man's reputation in society ; a pedigree ; 14 
 Camp. 416; 1 S. & S. 153 ; certain prescrip- 
 tive or customary rights and obligations ; 
 matters of public notoriety. But as such evi- 
 dence is in its own nature very weak, it must 
 be supported, when it relates to the exercise 
 of a right or privilege, by proof of acts of en- 
 joyment of such right or privilege within the 
 period of living memory; 1 Maule & S. 679 ; 
 5 Term, 32. Afterwards, evidence of repu- 
 tation may be given. The fact must be of a 
 public nature ; it must be derived from per- 
 sons likely to know the facts ; 9 B. Monr. 88; 
 4 B. & Aid. 63. The facts must be general, 
 and not particular ; they must be free from 
 suspicion ; 1 Stark. Ev. 54. 
 
 Injuries to a man's reputation by circu- 
 lating false accounts in relation thereto are 
 remediable by action and by indictment. See 
 Libel ; Slander ; Characteb. 
 
 REPUTED Q-WNER. In EngUah 
 Practice. A bankrupt trader who has in his 
 apparent possession goods, which he holds 
 with the consent of the true owner i< 
 called the reputed owner. The Bank- 
 ruptcy Act of 1869, sec. 15, 8 6, pro! 
 vides that such goods in his possession at the 
 commencement of his bankruptcy, passtohij 
 trustee ; but things in action, other than debts 
 due to him in the course of his trade or busi- 
 ness, are not deemed goods and chattels with- 
 in the meaning of that clause ; Whart. Diet.- 
 2 Steph. Com. 166 ; Robson, Bkcy. 2d ed 
 412-440. 
 
 REQUEST. (Lat. require, to ask for). 
 
 In Contracts. A notice of a desire on the 
 part of the person making it, that the other 
 party shall do something m relation to a con- 
 tract. Generally, when a debt is payable im- 
 mediately, no request need be made; 10 
 Mass. 230 ; 3 Day, 327 ; 1 Johns. Cas. 319. 
 
 In some cases, the necessity of a request is 
 implied from the nature of the transaction: 
 as, where a horse is sold to A, to be paid.for 
 on delivery, A must show a request ; 5 Term, 
 409 ; or impossibility on the part of the ven- 
 dor to comply, if requested; 5 B. &Ad.:712; 
 previous to bringing an action ; or on a pro- 
 mise to marry ; 2 Cowl. & R. 55. See De- 
 mand. And if the contract in terms provides 
 for a request, it must be made ; 1 Johns. Cas. 
 327. It should be in writing, and state dis- 
 tinctly what is required to be done ; 1 Chittj', 
 Pr. 497. 
 
 In Pleading. The statement in theplain- 
 tifi's declaration that a demand or request 
 has been made by the plaintiff of the defend- 
 ant to do some act which he was bound to 
 perform, and for which the action is brought. 
 
 A general request is that stated in the form 
 "although often requested so to do'' (fel 
 scepe requisitus), generally added in the 
 common breach to the money counts. l(j 
 omission will not vitiate the declaration ; 1 J. 
 & P. 59 ; 1 Johns. Cas. 100. 
 
 A special request is one provided for by the 
 contract, expressly or impliedly. Suchar^ 
 quest must be averred ; 5 Term, 409 ; 3 
 Camp. 549 ; 2 B. & C. 685; and proved; 1 
 Saund. 32, n. 2. It must state time and 
 place of making, and by whom it was made, 
 that the court may judge of its sufSeiency; 1 
 Stra. 89. See Comyns, Dig. Pleader (C69, 
 70); 1 Saund. 33, n.; Demand. 
 
 REQUESTS, COURTS OF. See 
 Courts of Requests. 
 
 REQUEST NOTES. In EngUshLaw. 
 Certain notes or requests from persons amena- 
 ble to the excise laws, to obtain a permit tot 
 removing any excisable goods or articles from 
 one place to another. 
 
 REQUISITION. The act of demanding 
 a thing to be done by virtue of some right. 
 
 The demand made by the governor of one 
 state on the governor of another f<"" ' '°f ' 
 tive, under the provision of the United btatcs 
 constitution. See Extradition. 
 
REQUISITIONS OF TITLE 679 
 
 RES MANCIPI 
 
 KBQUISITIONS OP TITLE. Written 
 inquiries made by the solicitor of an intend- 
 ing purchaser ofijand, to the vendor's solicit- 
 or in respect of some apparent insufficiency 
 in'the abstract of title. Moz. & W. 
 
 HES (Lat. things). 
 
 The terms Res, Bona, Biens, used by jurists 
 who have written in the Latin and French lan- 
 guages, are intended to include movable or per- 
 sonal, as well as immovable or real, property. 1 
 Barge, Confl. Laws, 19. See BiBNS ; Bona ; 
 Thinos. 
 
 RES ADJUDICATA. See Res Judi- 
 cata. 
 
 RES COMMUNES (Lat.). In Civil 
 Law. Those things which, though a sepa- 
 rate share of them can be enjoyed and used 
 by every one, cannot be exclusively and 
 wholly appropriated : as, light, air, running 
 water. Mackeldy, Civ. Law, § 156 ; Erskine, 
 Inst. 1. 1. 5, 6. 
 
 RES GESTiE (Lat.). Transaction; 
 thing done ; the subject-matter. 
 
 When it is necessary in the course of a 
 cause to inquire into the nature of a particu- 
 lar act, or the intention of the person who 
 did the act, proof of what the person said at 
 the time of doing it is admissible evidence as 
 part of the res gestae, for the purpose of 
 showing its true character. On an indict- 
 ment for a rape, for example, what the girl 
 said so recently after the fact as to exclude 
 the possibility of practising on her, has been 
 held to be admissible evidence as a part of 
 the transaction ; East, PI. Cr. 414 ; 2 Stark. 
 241 ; 1 Phill. Ev. 4th Am. ed. 185. 
 
 In the United States the tendency is to ex- 
 tend, rather than to narrow the scope of the 
 doctrine of res gestoB. Although generally 
 the declarations must be contemporaneous 
 with the event sought to be proved, yet, where 
 there are connecting circumstances, they may, 
 even when made some time afterwards, form 
 a part of the whole res gestae ; 8 Wall. 397 ; 
 55 Penn. 402; 57 Mo. 93; 47 id. 239; 1 
 Cush. 181. In England the decision of Cock- 
 burn, C. J., in Bedingfield's case, 14 Cox c. c. 
 341, is directly contrary, holding that the de- 
 claration must be contemporaneous with the 
 event to be admissible. This decision has 
 been vigorously opposed by Mr. Taylor and 
 others. See 14 Am. L. Rev. 817; 15 id. 1, 
 71 ; 34 Am. Rep. 479. 
 
 RES INTEGRA (Lat. an entire thing; 
 an entirely new or untouched matter). A 
 term applied to those points of law which 
 have not been decided, which are untouched 
 by dictum or decision. 3 Mer. 269 ; 1 
 Burge, Confl. Laws, 241. 
 
 RES INTER ALIOS ACTA (Lat.). A 
 technical phrase which signifies acts of others 
 or transactions between others. 
 
 Neither the declarations nor any other acts 
 of those who are mere strangers, or, as it is 
 usually expressed, any res inter alios acta, 
 are admissible in evidence against any one : 
 when the party against whom such acts are 
 
 offered in evidence was privy to the act, the 
 objection ceases : it is no longer res inter 
 alios; 1 Stark. Ev. 52; Sid. 1300; 4 Mann. 
 & G. 282. See 1 Mete. Mass. 55 ; Maxims. 
 RES JXTDICATA (Lat. things decided). 
 In Practice. A legal or equitable issue 
 which has been decided by a court of compe- 
 tent jurisdiction. 
 
 It is a general principle that such dicieion is 
 binding and conclusive upon all other courts of 
 concurrent power. This principle pervades not 
 only our own, but all other systems of jurispru- 
 dence, and has become a rule of universal law, 
 founded on the soundest policy. If, therefore, 
 Paul sue Peter to recover the amount due to him 
 upon a bond, and on the trial the plaintiff fails 
 to prove the due execution of the bond by Peter, 
 — in consequence of which a verdict is rendered 
 for the defendant, and judgment is entered there- 
 upon, — this judgment, till reversed on error, is 
 conclusive upon the parties, and Paul cannot re- 
 cover in a subsequent suit, although he may 
 then be able to prove tHe due execution of the 
 bond by Peter, and that the money is due to 
 him ; for, to use the language of the civilians, 
 res judicata facit ex albo nigrum, ex nigra album, 
 ex curvo rectum, ex rectoj curvum (a decision 
 makes white black ; black, white ; the crooked, 
 straight; the straight, crooked). 
 
 The constitution of the United States and the 
 amendments to it declare that no fact once tried 
 by a jury shall be otherwise re-examinable in 
 any court of the United States than according to 
 the rules of the common law. 
 
 But in order to make a matter res judicata 
 there must be a concurrence of the four con- 
 ditions following, namel}' : identity in the 
 thing sued for ; 5 M. & W. 109; 7 Johns. 
 20 ; 1 Hen. & M. 449 ; 1 Dana, 434 ; iden- 
 tity of the cause of action : if, for example, 
 I have claimed a right of way over Black- 
 acre, and a final judgment has been rendered 
 against me, and afterwards I purchase Black- 
 acre, this first decision shall not be a bar to 
 my recovery when I sue as owner of the land, 
 and not for an easement over it which I 
 claimed as a right appurtenant to mv land 
 Whiteacre; 6 Wheat. 109; 2 Gall. 2i6 ; 17 
 Mass. 237 ; 2 Leigh, 474 ; 8 Conn. 268 ; 1 N. 
 & M'C. So. C. 329; 16 S. & R. 282; 3 
 Pick. 429 ; identity of persons and of parties 
 to the action; 7 Cra. 271; 1 Wheat; 6; 14 
 S. & R. 435 ; 4 Mass. 441 ; 2 Yerg.- 10 ; 5 
 Me. 410; 8 Gratt. 68; 16 Mo. 168; 12 Ga. 
 271 ; 21 Ala. N. s. 813 ; 23 Barb. 464 ; this 
 rule is a necessary consequence of the rule of 
 natural justice, ne inauditus condemnetur ; 
 identity of the quality in the persons for or 
 against whom the claim is made ; for exam- 
 ple, an action by Peter to recover a horse, 
 and a final judgment against him, is no bar 
 to an action by Peter, administrator of Paul, 
 to recover the same horse ; 5 Co. 32 6 ; 6 
 Mann. & G. 164 ; 4 C. B. 884. See Wells, 
 Res Adjudicata, etc.; Former Judgment. 
 
 RES MANCIPI (Lat.). In Roman 
 Law. Those things which might be sold and 
 alienated, or of which the property might be 
 transferred from one person to another. 
 
 The division of things into res maneipi and res 
 nee maneipi was one of ancient origin, and it con- 
 
RES NOVA 
 
 580 RESCISSION OE CONTRACTS 
 
 tinned to a late period in the empire. Bes man- 
 cipi (Ulp. Frag, xix.) are prcedia in italico tola, 
 both ruBtic and urban j also, jura rusticorwm 
 prcedim'um or seriiitutes, as via, iter, aqiueduetua ; 
 also slaveB, and four-footed animals, as oxen, 
 horses, etc., guce collo dorsove domantw. Smith, 
 Diet. Gr. & Rom. Antiq. To this list may be 
 added children of Boman parents, who were, ac- 
 cording to the old law, res mancipi. The distinc- 
 tion between res mancipi and nee mancipi was 
 abolished by Justinian in his Code. Id. ; Cooper, 
 Inst. 443. 
 
 RES NOVA (Lat.). Something new; 
 something not before decided. 
 
 RES NULLinS (Lat.). A thing which 
 has no owner. A thing which has been aban- 
 doned by its owner is as much res nullius as 
 if it had never belonged to any one. 
 
 The first possessor of such a thing becomes 
 the owner : res nullius fit primi occupantis 
 Bowy. Com. 97. 
 
 RES FERIIT DOMINO (Lat. the thing 
 is lost to the owner) . A phrase used to express 
 that when a thing is lost or destroyed it is lost 
 to the person who was the owner of it at the 
 time. For example, an article is sold ; if the 
 seller have perfected the title of the buyer so 
 that it is his, and it be destroyed, it is the 
 buyer's loss ; but if, on the contrary, some- 
 thing remains to be done before the title be- 
 comes vested in the buyer, then the loss falls 
 on the seller. 
 
 RIS PRIVAT.a: (Lat.). In ClvU Law. 
 Things the property of one or more indi- 
 viduals. Mackeldey, Civ. Law, § 157. 
 
 RES PUBLICS! (Lat. ) . In Civil Law. 
 Things the property of the state. Mackeldey, 
 Civ. Law, § 157 ; Erskine, Inst. 2. 1. 5. 6. 
 
 RES RELIGIOSiB (Lat.). In Civil 
 Law. Things pertaining to religion. Places 
 where the dead were buried. Thevenot Des- 
 saules. Diet, du Dig. Chose, 
 
 RES SACRS: (Lat.). In CivU Law. 
 Those things which had been publicly conse- 
 crated. 
 
 RES SANCT.a! (Lat.). In ClvU Law. 
 Those things which were especially protected 
 against injury of man. 
 
 RES TTNIVERSITATIS (Lat.). In 
 Civil Law. Those things which belonged to 
 cities or municipal corporations. They be- 
 longed so far to the public that they could 
 not be appropriated to private use : such as 
 public squares, market-houses, streets, and the 
 like. Inst. 2. 1. 6. 
 
 RESALE. A second sale made of an 
 article : as, for example, when A, having sold 
 a horse to B, and the latter, not having paid 
 for him, and refusing to take him away, when 
 by his contract he was bound to do so, again 
 sells the horse to C. The effect of a resale is 
 in this case, that B would be liable to A for 
 the difference of the price between the sale and 
 resale ; 4 Bingh. 722 ; 4 Mann. & G. 898 ; 
 Blackb. Sales, 3S6. 
 
 RESCEIT, RECEIT. The admission or 
 receiving of a third person to plead his right 
 
 in a cause formerly commenced between two 
 other persons : as, when an action is brought 
 against a tenant for life or years, or any oth® 
 particular tenant, and he makes default, in 
 such case the reversioner may move that he 
 may be received to defend his right and to 
 plead with the demandant. Jacob, Lav 
 Diet. ; Cowel. 
 
 The admittance of a plea when the contro. 
 versy is between the same two persons. Co 
 Litt. 192. 
 
 RESCISSION OF COITTRACTS. 
 The abrogation or annulling of contracts. 
 
 It may take place by mutual consent; and this 
 consent may be inferred from acts ; 4 Mann. & 
 G. 898 ; 7 Bingh. 266; 1 Pick. 67; 4 id. 114; 
 5Me. 277. It may take place as the act of one 
 party, in consequence of a failure to perform 
 by the others ; 2 C. B. 905 ; 4 Wend. 286 ; -2 
 Penn. 464 ; 3 id. 446 ; 28 N. H. 661 ; 9 Ls. 
 An. 31 ; not so, ordinarily, where the failure is 
 but partial; 4 Ad. & B. 699; IM. &W. 
 231; on account of/ro«d, even though partially 
 executed; 6 Cush. 126; 16 Ohio, 200; 23 
 N. H. 619. See 26 Alb. L. J. 69. 
 
 A contract cannot, in general, be rescinded 
 by one party unless both parties can be placed 
 in the same situation and <;an stand upon the 
 same terms as existed when the contract was 
 made ; 2 Y. & J. 278 ; 4 Mann. & G. 903 ; 1 
 M. & W. 231 ; 3 Me. 30 ; 1 Denio, 69; 22 
 Pick. 283 ; 4 Blackf. 515; 2 Watts, 433; 10 
 Ohio, 142 ; 3 Vt. 442 ; 1 N. H. 17. It must 
 be done at the time specified, if there be such 
 a time : otherwise, within a reasonable time ; 
 2 Camp. 530 ; 14 Me. 57 ; 22 Pick. 546 ; in 
 case of fraud, upon its discovery ; 1 Denio, 
 69; 5 M. & W. 83. The right may be 
 waived by mere lapse of time; 3 Sfor. 612; 
 see 6 CI. & F. 234 ; or other circumstances ; 
 9 B. & C. 69 ; 4 Denio, N. Y. 564 ; 4 Mass. 
 502 ; Baldw. 331. 
 
 The equity for the rescission and cancella- 
 tion of agreements, securities, deeds, and 
 other instruments arises when a transaction is 
 vitiated by illegality or fraud, or by reason of 
 its having been carried on in ignorance or 
 mistake of facts material to its operation. 
 The jurisdiction of the court of equity is ex- 
 ercised upon the principle of quia timet; t\at 
 is, for fear that such agreements, securities, 
 deeds, and other instruments may be vexa- 
 tiously or injuriously used against the party 
 seeking relief, when the evidence to impeach 
 them may be lost ; or that they may throw a 
 cloud or suspicion over his interest or title; 
 or where he has a defence good in equity 
 which cannot be made available at law. The 
 cases in which this relief will be granted on 
 account of misrepresentation and fraud may 
 be divided into four classes : first, where 
 there is actual fraud in the party defendant 
 in which the party plaintiff has not partici- 
 pated; 13 Pet. 26; secondly, where there is 
 constructive fraud against public policy and 
 the party plaintiff has not participated therem; 
 see 4 Munf. 316 ; thirdly, where there is a 
 fraud against public policy and the party 
 
RESCISSORY ACTIONS 
 
 581 
 
 RESCUE 
 
 plaintiff has participatied therein, but public 
 policy would be defeated by allowing it to 
 Btand ; fourthly, where there is a constructive 
 fraud by both parties, — that is, where both 
 parties are in delicto, but not in pari delicto ; 
 see 2 Story, Eq. Jur. § 694 ; 3 Jones, Eq. 
 494 ; 2 Mas. 378 ; 25 Ga. 89 ; 1 Pat. & H. 307 ; 
 Bisph. Eq. § 31. The court will decree that 
 a deed or other solemn instrument shall be'de- 
 livered up and cancelled, not only when it is 
 avoidable on account of fraud, but also when 
 it is absolutely void, unless its invalidity ap- 
 pears upon the face of it, so that it may be 
 defe^ited at anv time by a defence at law ; 2 
 Story, Eq. Jur. § 698 ; 6 Du. N. Y. 597. 
 
 The ignorance or mistake which will au- 
 thorize relief in equity must be an ignorance 
 or mistake of material facts ; 1 Stor. 173 ; 4 
 Mas. 414; 11 Conn. 134; 6 Wend. 77; 6 
 Harr. & J. 500 ; 10 Leigh, 37 ; and the mis- 
 take must be mutual ; 3 Green, Ch. 103 ; 2 
 Sumn. 387; 11 Pet. 63; 24 Me. 82; 10 Vt. 
 570 ; 6 Mo. 16 ; 35 Peun. 287. If the facts 
 are known but the law is mistaken, the same 
 rule applies in equity as at law, that a mere 
 inistake or ignorance of law, where there is no 
 fraud or trust, is immaterial : ignorantia legis 
 neminem excusat; Adams, Eq. 188; see 
 Ignorance; Mistake. 
 
 Instruments may also be rescinded and 
 cancelled when they have been obtained from 
 persons who were at the time under duress or 
 incapacity ; 2 Root, 216 ; 8 Ohio, 214 ; 3 
 Yerg. 537; 36 Miss. 685; or by persons who 
 stood in a confidential relation and took ad- 
 vantage of that relation ; 5 Sneed, 583 ; 31 
 Ala. N. B. 292; 3 Cow. 537 ; 2 Mas. 378; 
 2A. K. Marsh. 175; 9 Md. 348; 3 Jones, 
 Eq. 152, 186 ; 30 Miss. 369 ; 8 Beav. 437. 
 - Gross inadequacv of consideration ; 17 Vt. 
 9; 22 6a. 637; 19 How. 303; fraudulent 
 misrepresentation and concealment ; 3 Pet. 
 210; 2' Ala. n. s. 251 ; 10 Yerg. 206 ; 1 A. 
 K. Marsh. 235 ; 2 Paige, Ch. 390 ; 1 D. & 
 B. Eq. 318 ; 2 Mo. 126 ; 34 Ala. N. s. 596 ; 
 6 Wise. 295 ; 9 Ind. 1 72, 526 ; hardship and 
 unfairness; 17 Vt. 542; 2 Root, 216; 2 
 Green, Ch. 357 ; 2 Harr. & J. 285 ; 3 Yerg. 
 537; 8 Ohio, 214; 31 Vt. 101; undue in- 
 fluence ; 2 Mas. 378 ; are among the causes 
 for a rescission of contracts in equity. 
 
 SESCISSOR7 ACTIONS. In Scotch 
 Law. Actions which are brought to set aside 
 deeds. Patterson, Comp. 1058, n. 
 
 Proper improbation is an action brought 
 for declaring writing false or forged. 
 
 Reduction-improbation is an action where- 
 by a person who may be hurt or affected by a 
 writing insists upon producing or exhibiting it 
 m court, in order to have it set aside, or its 
 effects ascertained under the certification that 
 the writing, if not produced, shall be de- 
 clared false and forged, 
 
 In an action of simple reduction the certifi- 
 cation is only temporary, declaring the writ- 
 ings called for null until they be produced ; 
 ^0 that they recover their full force after their 
 
 production. Erskine, b. 4, tit. 1, § 5, b. 4, 
 tit. 1, § 8. 
 
 RESCOtrS. An old term, synonymous 
 with resc^^e, which see. 
 
 RESCRIPT. In Canon Law. A term 
 including any form of apostolical letter ema- 
 nating from the pope. The answer of the 
 pope in writing. Diet. Droit Can. 
 
 In Civil Law. The answer of the prince, 
 at the request of the parties, respecting some 
 matter in dispute between them, or to magis- 
 trates, in relation to some doubtful matter 
 submitted to him-. 
 
 The rescript was differently denominated ac- 
 cording to the character of those who sought it. 
 They were called annotations or subnotations, 
 when the answer was given at the request of pri- 
 vate citizens ; letters or epistles, when he answered 
 the consultation of magistrates ; pragmatic sanc- 
 tions, when he answered a corporation, the citi- 
 zens of a province, or a municipality. Sea 
 Code. 
 
 At Common Law. A counterpart. 
 
 In Massachusetts it is used to denote the 
 statement of the decision of the supreme judi- 
 cial court as an appellate tribunal, and the 
 accompanying brief statement of the reasons 
 for the decision sent to the court from which 
 the case was brought. 
 
 RBSCRIPTION. In French Law. A 
 rescription is a letter by which the maker re- 
 quests some one to pay a certain sum of 
 money, or to account for him to a third per- 
 son for it. Pothier, Contr. de Change, n. 
 225. 
 
 According to this definition, bills of exchange 
 are a species of rescription. The difference ap- 
 pears to be this, — that a bill of exchange is given 
 when there has been a contract of exchange be- 
 tween the drawer and the payee ; whereas the 
 rescription is sometimes given in payment of a 
 debt, and at other times it is lent to the payee. 
 
 RESCUE. In Criminal Law. The 
 
 forcibly and knowingly freeing another from 
 arrest or imprisonment. 4 Bla. Com. 131. 
 
 A deliverance of a prisoner from lawful 
 custody by a third person. 2 Bish. Cr. 
 Law, I 1065. 
 
 Taking and setting at liberty, against law, 
 a distress taken for rent, services, or damage 
 feasant. Bacon, Abr. Rescous. 
 
 If the rescued prisoner was arrested for 
 felony, then the rescuer is a felon ; if for trea- 
 son, a traitor ; 3 P. Wms. 468 ; Cro. Car. 
 583 ; and if for a tresspass, he is liable to a 
 fine as if he had committed the original of- 
 fence; Hawk. PI. Cr. b. 5, c. 21. See 2 
 Gall. 313 ; Russ. & R. 432. If the principal 
 be acquitted, the rescuer may nevertheless be 
 fined for the misdemeanor in the obstruction 
 and contempt of public justice ; 1 Hale, PI. 
 Cr. 598. See T. U. P. Charlt. 13 ; Hawk. 
 PI. Cr. b. 2, c. 21. 
 
 In order to render the rescuer criminal, it 
 is necessary he should have knowledge that 
 the person whom he sets at liberty has been 
 apprehended for a criminal offence, if he is in 
 the custody of a private person ; but if he be 
 
KESEALING WRIT 
 
 582 
 
 RESIDUARY DEVISEE 
 
 under the care of a public officer, then he is 
 to take notice of it at his peril ; 1 Hale, Fl. 
 Cr. 606. See further, with regard to the law 
 of rescue, 1 Stor. 88 ; 2 Gall. 313 ; 1 Carr. & 
 M. 299 ; 1 Ld. Raym. 35, 589. 
 
 The rescue of cattle and goods distrained by 
 pound-breach is a common-law offence and 
 indictable; 7 C. &P. 233 ; 5 Pick. 714. 
 
 In Maritime Law. The retaking by a 
 party captured of a prize made by the enemy. 
 There is still another kind of rescue which 
 partakes of the nature of a recapture : it occurs 
 when the weaker party, before he is over- 
 powered, obtains relief from the arrival of 
 fresh succors, and is thus preserved from the 
 force of the enemy. 1 C. Rob. 224, 271 ; 
 Halleck, Int. Law, cxxxv. 
 
 Rescue differs from recapture. The rescuers 
 do not by the rescue become owners of the pro- 
 perty, as If It had been a new prize ; but the pro- 
 perty Is restored to the original owners by the 
 right of post-liminium. 
 
 RESEALING WRIT. The second seal- 
 ing of a writ by a master so as to continue it, 
 or cure it of an irregularity. Whart. Diet. 
 
 RESCITSSOR. The party making a res- 
 cue is sometimes so called ; but morepropa-ly 
 he is a rescuer. 
 
 RESERVATION. That part of a deed 
 or instrument which reserves a thing not in 
 esse at the time of the grant, but newly cre- 
 ated. 2 Hilliard, Abr. 359. 
 
 The creation of a right or interest which 
 had no prior existence as such in a thing or 
 part of a thing granted, by means of a clause 
 inserted by the grantor in the instrument of 
 conveyance. 
 
 A reservation is distinguished from an excep- 
 tion in that it is of a new right or interest : thus, 
 a right of way reserved at the time of conveying 
 an estate, which may have been enjoyed by the 
 grantor as owner of the estate, becomes a new 
 right. 43 Me. 9. 
 
 A reservation may be of a life-estate ; 28 
 Vt. 10 ; 33 N. H. 18 ; 23 Mo. 373 ; 3 Md. 
 Ch. Dec. 230 ; of a right of flowage ; 41 Me. 
 298 ; right to use water; 41 Me. 177 ; 9 N. 
 Y. 423 ; right of way; 25 Conn. 331; 6 
 Gush. 254; 10 id. 313; 10 B. Monr. 463; 
 a ground rent, in Pennsylvania, and of many 
 other rights and interests ; 33 N. H. 507 ; 9 
 B. Monr. 163 ; 6 Penn. 317 ; 29 Ohio, 568 ; 
 107 Mass. 290. The public land laws of the 
 United States provide for reservations or ' ' re- 
 serves" of government land for certain public 
 purposes ; such as Indian reservations, and 
 those for military posts. 
 
 RESERVE. The National Bank Act di- 
 rects that all national banks in the sixteen 
 largest cities shall at all times have on hand, 
 in lawful money of the United States, an 
 amount equal to at least twenty-five per cent, 
 of the aggregate amount of its notes in circula- 
 tion and deposits. Fifteen per cent, is required 
 of all other national banks. When the reserve 
 falls below the proper limit, the bank must 
 not increase its liability, otherwise than by 
 discounting or purchasing bills of exchange 
 
 payable at sight, nor make any dividend, till 
 the limit is reached. On a failure to make 
 good the reserve for thirty days after notice 
 by the comptroller of the currency, the latter 
 may, with the concurrence of the secretary of 
 the treasury, appoint a receiver to wind up 
 the bank. R. S. § 5191. 
 
 For point reserved, see that title. 
 
 RESET OP THEFT. In Scotch Law. 
 The receiving and keeping stolen goods, 
 knowing them to be stolen, with a design of 
 feloniously retaining them from the real 
 owner. Alison, Cr. Law, 328. 
 
 RESETTER. In Scotch Law. A re- 
 ceiver of stolen goods, knowing them to have 
 been stolen. 
 
 RESIANCE. A man's residence or per- 
 manent abode. Such a man is celled a resi- 
 ant. Kitch. 33. 
 
 RESIDENCE (Lat. resedeo). Personal 
 presence in a fixed and permanent abode. 20 
 Johns. 208 ; 1 Mete. Mass. 251. 
 
 A residence is different from a domicil, al- 
 though it is a matter of great importance in de- 
 termining the place of domicil. . See 13 Maes. 
 501 ; 2 Gray, 490 ; 19 Wend. 11 ; 11 La. 175; 5 
 He. 143 ; Domioil. It is an element of domicil. 
 See 97 Penn. 74; 21 Wall. 350 ; Dicey, Dom. 1. 
 Kesidence and habitancy are usually synony- 
 mous ; a Gray, 490 ; 2 Kent, 574, n. Residence 
 indicates permanency of occupation, as distinct 
 from lodging, or boarding, or temporary occu- 
 pation, but does not include so much as domi- 
 cil, which requires an intention continued with 
 residence ; 19 Me. 293 ; 2 Kent, S76. In a sta- 
 tute it was held not to mean business residence, 
 but the fixed home of the party ; 13 Keptr. 430 
 (S. C. of Md.); see 15 M. & W. 433. 
 
 RESIDENT. One who has his residence 
 in a place. 
 
 RESIDENT MINISTER. In Interna- 
 tional Law. The second or intermediate 
 class between ambassadors and envoys, 
 created by the conference of the five powers 
 at Aix-la-Chapelle, in 1818. They are it- 
 credited to the sovereign ; 2 Phill. Int. Law, 
 220*. They are said to represent the affairs, 
 and not the person, of the sovereign, and so 
 to be of less dignity ; Vattel, b. 4, c. 6, § 73. 
 The fourth class is charg6s-d' affaires, ac- 
 credited to the minister of foreign affairs; 
 2 Phill. Int. Law, 220 ; Wheat. Int. Law, 
 pt. 3, c. 1, § 6. 
 
 RESIDUARY ACCOUNT. In EngUsh 
 Practice. The account which every executw 
 and administrator, after paying the debte and 
 particular legacies of the deceased, and before 
 paying over the residuum, must pass before 
 the Board of Inland Revenue. 2 Steph. Com. 
 208 n. ; Moz. & W. 
 
 RESIDUARY CLAUSE. The clause 
 in a will by which that part of the property is 
 disposed of which remains after satisfyingjir^ 
 vious bequests and devises. 4 Kent, 541 ; i 
 Will. Exec. 1014, n. 2. 
 
 RESIDUARY DEVISEE. The person 
 to whom the residue of a testator's real estate 
 is devised after satisfying previous devises. 
 
RESIDUAEY ESTATE 
 
 583 
 
 RESPONDEAT OUSTER 
 
 HBSIDTTARY ESTATE. What re- 
 mains of a testator's estate after deducting the 
 debts and the bequests and devises. 
 
 RESIDUARY LEGATEE. He to whom 
 the residuum of the estate is devised or be- 
 queathed by will. Rop. Leg. ; Powell, Mortg. 
 See Legacy. 
 
 RESIDUE. That which remains of some- 
 thing after taking away a part of it : as the 
 residue of an estate, which is what has not 
 been particularly devised by will. 
 
 A will bequeathing the general residue of 
 personal property passes to the residuary 
 legatee every thing not otherwise effectually 
 disposed of; and it makes no difference whether 
 a legacy falls into the estate by lapse or as 
 void at law, the next of kin is equally ex- 
 cluded; 15 Ves. 416; 2 Mer. 392. Where 
 a residuary legacy lapses, there is a pro tanto 
 intestacy ; 82 Penn. 428. 
 
 RESIGNATION (Lat. resignatio: re, 
 hack, signo, to sign). The act of an officer 
 by which he declines his office and renounces 
 the further right to use it. , It differs from 
 abdication. 
 
 At common law, as offices are held at the 
 will of both parties, if the resignation of an 
 officer be not accepted he remains in office ; 4 
 Dev. 1 ; 103 U. S. 471 ; 31 N. J. L. 107 ; 
 14 Cent. L. J. 272 (S. C. Kansas) ; contra, 1 
 McLean, 509 (see comments on this case in 
 103 U. S. 471) ; 6 Cal. 26 ; 3 Nev. 566 (a U. 
 S. officer) ; 49 Ala. 402. Ineligibility as 
 presidential elector by reason of holding a dis- 
 qualifying office, is not removed by a resigna^ 
 tion of such office subsequently to the election 
 as a presidential elector ; 16 Am. L. Reg. N. 
 s. 15 n. ; s. c. 11 E. I. 638. The acceptance 
 of a second office incompatible with one already 
 held, acts as a resignation of the latter ; Mc- 
 Crary, Elect. 179. 
 
 RESIGNATION BOND. In Ecclesi- 
 astical Law, A bond given by an incum- 
 bent to resign on a certain contingency. It 
 may be conditioned to resign for good and 
 sufficient reason, and therefore lawful : e. g. 
 to resign if he take a second benefice, or on 
 request, if patron present his son or kinsman 
 when of age to take the living, etc. Cro. Jac. 
 249, 274. But equity will generally relieve 
 the incumbent ; 1 RoUe, Abr. 443. 
 
 RBSIGNEE. One in favor of whom a 
 resignation is made. 1 Bell, Com. 1 25 n. 
 
 RESISTANCE CLat. re, back, sisto, to 
 stand, to place). The opposition of force to 
 force. See Arrest ; Assault ; Officer ; 
 Peocess. 
 
 RESOLUTION (Lat. re, back, again, 
 solvo, to loose, to free). A solemn judgment 
 or decision of a court. This word is fre- 
 quently used in this sense in Coke and some 
 of the more ancient reporters. An agreement 
 to a law or other thing adopted by a legisla- 
 ture or popular assembly. See Diet, de 
 Jurisp. 
 
 In Civil Law. The act by which a con- 
 
 tract which existed and was good is rendered 
 null. 
 
 Eesolutlon differs essentially from rescission. 
 Tlie former presupposes the contract to have 
 been valid, and it is owing to a cause posterior 
 to the agreement that the resolution takes place ; 
 while rescission, on the contrary, supposes that 
 some vice or defect annulled the contract from 
 the beginning. Resolution may be by consent of 
 the parties or by the decision of a competent 
 tribunal ; rescission must always be by the judg- 
 ment of a court ; 7 Troplong, de la Vente, n. 
 689; 7 Toullier, 551. 
 
 RESOLUTORY CONDITION. One 
 
 which has for its objects, when accomplished, 
 the revocation of the principal obligation ; 
 for example, I will sell you my crop of cotton 
 if my ship America does not arrive in the 
 United States within six months : my ship 
 arrives in one month : my contract with you 
 is revoked. 1 Bouvier, Inst. u. 764. 
 
 RESPIRATION (Lat. re, back, spiro, to 
 breathe). Breathing, which consists of the 
 drawing into, inhaling, or, more technically, 
 inspiring, atmospheric air into the lungs, and 
 then forcing out, expelling, or, technically, 
 expiring, from the lungs the air therein. 
 Chitty, Med. Jur. 92, 416, note n. 
 
 RESPITE. In Civil Law. An act by 
 which a debtor who is unable to satisfy his 
 debts at the moment transacts (i.e. compro- 
 mises) with his creditors and obtains from 
 them time or delay for the payment of the 
 sums which he owes to them. La. Code, 
 3051. 
 
 A forced respite takes place when a part of 
 the creditors refuse to accept the debtor's 
 proposal, and when the latter is obliged to 
 compel them, by judicial authority, to con- 
 sent to what the others have determined in 
 the cases directed by law. 
 
 A voluntary respite takes place when all 
 the creditors consent to the proposal of the 
 debtor to pay in a limited time the whole or 
 a part of his debt. 
 
 A delay, forbearance, or continuation of 
 time. 
 
 In Criminal LaTv. A reprieve. A tem- 
 porary suspension of the execution of a sen- 
 tence. See 62 Penn. 60. It differs from a 
 pardon, which is an absolute suspension. See 
 Pardon ; Reprieve. 
 
 RESPITE OF HOMAGE. To dispense 
 with the performance c(f homage by tenants 
 who held their lands in consideration of per- 
 forming homage to their lords. Cowel. 
 
 RESPOmiE BOOK. In Scotch Law. 
 
 A book of record of the chancellary, in which 
 are entered all non-entry and relief duties 
 payable by heirs who take precepts from 
 chancery. Stair, Inst. p. 296, § 28; 
 Erskine, Inst. 11. 5. 50. 
 
 RESPONDEAT OUSTER (that he 
 answer over). In Practice. A form of 
 judgment anciently used when an issue in law 
 upon a dilatory plea was decided against the 
 party pleading it. See Abatement. 
 
RESPONDEAT SUPERIOR 584 RESPONSIBLE GOVERNMENT 
 
 RESPONDEAT SUPERIOR. A 
 
 phrase often used to indicate the responsi- 
 bility of a principal for the acts of his servant 
 or agent. See 5 So. L. Rev. 238 ; 3 Cent. 
 L. J. 647 ; Roberts & Wall., Liab. of EmpL; 
 Master ; Agejjt. 
 
 RESPONDENT. The party -who makes 
 an answer to a bill or other proceeding in 
 chancery. 
 
 In Civil Law. One who answers or is 
 security for another; afidejusssor. Dig. 2. 
 8. 6. 
 
 RESPONDENTIA. In Maritime Law. 
 'A loan of money, on maritime interest, on 
 goods laden on board of a ship, upon the 
 condition that if the goods be wholly lost in 
 the course of the voyage, by any of the perils 
 enumerated in the contract, the lender shall 
 lose his money ; if not, that the borrower 
 shall pay him the sum borrowed, with the 
 interest agreed upon. See Newb. 514. 
 
 The contract ie called respondentia because the 
 money is lent mainly, or most frequently, on the 
 personal responsibility of the borrower. It differs 
 principally from bottomry, which see, in the fol- 
 lowing circumstances : bottomry is a loan on the 
 ship ; respondentia is a loan upon the goods. 1 
 Pet. 386. The money is to be repaid to the 
 lender, with maritime interest, upon the arrival 
 of the ship In the one ease, and of the goods in 
 the other. In most other respects the contracts 
 are nearly the same, and are governed by the 
 same principles. In the former, the ship and 
 tackle, being hypothecated, are liable, as well 
 as the borrower ; In the latter, the lender has, 
 In general, it is said, only the personal security 
 of the borrower ; Marsh. Ins. 734. 
 
 If any part of the goods arrive safely at 
 the end of the voyage, the lender is entitled 
 to have the proceeds applied to the payment of 
 his debt. If the loan is made to the master, 
 and not to the owners of the goods, the neces- 
 sity for the loan and for the hypothecation of 
 the cargo must be clearly shown, or the owners 
 of the goods, and, consequently, the goods 
 themselves, will not be bound. The ship and 
 freight are always first to be resorted to to 
 raise money for the necessity of the ship or 
 the prosecution of the voyage ; and it seems 
 that a bond upon the cargo is considered by 
 implication of law a bond upon the ship 
 and freight also, and that unless the ship be 
 liable in law the careo cannot be held liable ; 
 The Constancia, 4 Notes of Cas. 285, 512, 
 677; 10 Jur. 845; 2 W. Rob. 83; 14 Jur. 
 96. And see 3 Mas. 255. 
 
 If the contract clearly contemplates that 
 the goods on which the loan is made are to be 
 sold or exchanged, free from any lien, in the 
 course of the voyage, the lender will have no 
 lien on them, but must rely wholly on the 
 personal responsibility of the borrower. It 
 has been frequeritly said by elementary writers, 
 and without qualification, that the lender has 
 no lien ; 2 Bla. Com. 458 ; 3 Kent, 354 ; but 
 the form of bond generally in use in this 
 country expressly hypothecates the goods, 
 and thus, even when there is no express 
 hypothecation, if the goods are still on bpard 
 
 at the end of the voyage it is not doubtful 
 that a court of admiralty will direct the m. 
 rest of the goods and enforce against them 
 the maritime lien or privilege conferred by 
 the respondentia contract. There is per- 
 haps, no common-law lien, but this maritime 
 lien only ; but the latter will be enforced by 
 the proper admiralty process. See the au. 
 thonties cited in note to Abh. Shipp. 154. 
 4 Wash. C. C. 662 ; form of respondentia 
 bonds in Conkl. Adm. 263 ; 1 Pars. Mar. 
 Law, 437, and n. 5 ; Abb. Shipp. 978. 
 
 RESPONDERE NON DEBET (Lat. 
 ought not to reply). In Pleading. The 
 prayer of a plea where the defendant insists 
 that he ought not to answer, as when lie 
 claims a privilege : for example, as being a 
 member of congress or a foreign ambassador. 
 1 Chitty, PL *433. 
 
 RESPONSA PRT7DENTUM (Lat.). 
 In Roman Law. Opinions given by Boman 
 lawyers. 
 
 Before the time of Augustus, every lawyer vas 
 authorized, de jure, to answer questions put to 
 him ; and all such* answers, responsa prwUntmif 
 had equal authority, which had not the force of 
 law, but the opinion of a lawyer, Augustus was 
 the first prince who gave to certain distiDguished 
 jurisconsults the particular privilege of ansver- 
 ing in his name ; and from that period their 
 answers acquired greater authority. Adrian de- 
 termined in a more precise manner the degree of 
 authority which these answers should have, by 
 enacting that the opinions of such authorized 
 jurisconsults, when unanimonsly given, should 
 have the force of law (tejrismcem) and' should 
 be followed by the judges, and that when they 
 were divided the judge was allowed to adopt 
 that which to him appeared the most equitable. 
 The opinions of other lawyers held the same 
 place they had before : they were considered 
 merely as the opinions of learned men, Mackel- 
 dey, Man, Introd, § 43 ; Mackeldey, Hist, du 
 Dr. Rom. §§ 40, 49: Hugo, Hist, du Dr,Jiom. 
 § 318 ; Inst. L 2. 8 ; Institutes Expliqu&s, n. 39. 
 
 RESPONSALIS, In Old English Law, 
 One who appeared for another. 
 
 In Ecclesiastical Law. A proctor. 
 
 RESPONSIBILITY. The obligation;to 
 answer for an act done and to repair any in- 
 jury it may have caused. 
 
 One person — as, for example, a principal, 
 master, or parent — is frequently responsible, 
 civilly, for the acts of another. 
 
 Penal responsibility is always personal ; and 
 no one can be punished for the commission of 
 a crime but the person who has committed it, 
 or his accomplice. 
 
 RESPONSIBLE. Able to pay the sum 
 which may be required of him ; able to dis- 
 charge an obligation. Webst. Diet. ; 26 N. 
 H, 527. A promise " to be responsible" for 
 the debt of another, is merely a guaranty, and 
 not a suretyship ; 9 Phila. 499. 
 
 RESPONSIBLE GOVERNMENT, A 
 term used in England and her colonial pos- 
 sessions to indicate an obligation to resign, on 
 the part of the executive council, upon the 
 declaration of a want of confidence by vote 
 
EESTITUTIO IN INTEGEAM 685 
 
 RESULTING TRUST 
 
 of the legislative branch of the colonial gov- 
 ernment. Mills, Col. Const. 27. 
 
 RESTITUTIO IN INTEGRAM (Lat.). 
 In Civil Iisw. A restoring parties to the 
 condition they were in before entering into a 
 contract or agreement on account of fraud, 
 infancy, force, honest mistake, etc. Cal- 
 vinus, Lex. The going into a cause anew 
 from the beginning. Calvinus, Lex. 
 
 RESTITXTTION. In Maritime La'cv. 
 The placing back or restoring articles which 
 have been lost by jettison : this is done, when 
 the remainder of the cargo has been saved, at 
 the general charge of the owners of the cargo ; 
 but when the remainder of the goods is after- 
 wards lost, there is not any restitution. 
 Stevens, Av. pt. 1, c. 1, s. 1, art. 1, n. 8. 
 As to restitution of captured vessels, see 
 Recapture ; Desty, Sh. & Adm. § 446. 
 
 In Praotioe. The return of something to 
 the owner of it or to the person entitled to it. 
 
 After property has been taken into execu- 
 tion, and the judgment has been reversed or 
 set aside, the party against whom the execu- 
 tion was sued out shall have restitution ; and 
 this is enforced by a writ of restitution ; Cro. 
 Jac. 698 ; 13 S. & R. 294. When the thing 
 levied upon under an execution has not been 
 sold, the thing itself shall be restored ; when 
 it has been sold, the price for which it is sold 
 is to be restored; Bacon, Abr. Execution 
 (Q); 1 Maule&S. 425. 
 
 RESTITUTION OP CONJUGAL 
 RIGHTS. In Ecclesiastical Law. A 
 compulsory renewal of cohabitation between 
 a husband and wife who have been living 
 separately. Unknown in the United States. 
 
 A suit may be brought in the divorce and 
 matrimonial court for' this purpose whenever 
 either the husband or wife is guilty of the 
 injury of subtraction, or lives separate from 
 the other without sufficient reason, by which 
 the party injured may compel the other to 
 return to cohabitation; 3 Bla. Com. 94; 3 
 Steph. Com. 11 ; 1 Add. Eccl. 305 ; 3 Hagg. 
 619. Formerly a deed of separation afforded 
 no bar to this suit, even though it in terms 
 forbade such proceedings. But this rule is 
 now changed, and to one separated spouse 
 chancery will now grant an injunction, to re- 
 strain the other from suing for restitution of 
 conjugal rights ; Schoul. Hus. & Wife, § 482. 
 
 RESTITUTION OP MINORS. In 
 Scotch Law. A minor on attaining majority 
 may obtain relief against a deed previously 
 executed by him, which may be held void or 
 voidable, according to circumstances. This 
 is called restitution of minors. Bell. 
 
 RESTRAINT. Contracts operating for 
 the restraint of trade are presumptively illegal 
 and void on the ground of the policy of the 
 law favoring freedom of trade ; but the pre- 
 sumption of illegality may be rebutted by the 
 occasion and circumstances. Thus in agree- 
 ments for the sale of the good- will of a firm, 
 or the formation or dissolution of a partner- 
 ship, provisions operating in restraint of trade 
 
 are frequently inserted. Their validity de- 
 pends upon whether the restraint is such only 
 as to afford a fair protection to the interests of 
 the party in whose favor it is imposed ; Leake 
 Contr, 734-735. Whatever restraint is larger 
 than is necessary for the protection of this 
 party is void: therefore, the restraint must 
 be limited in regard to space ; 5 M. & W. 
 562; L. R. 15 Eq. 59. An agreement rea- 
 sonable in regard to space may be unlimited 
 in regard to the duration of time provided 
 for ; but where the question is whether the 
 limit of space is unlimited, the duration of the 
 restraint in point of time may become an 
 important matter ; Leake, Contr. 736; 2 M. 
 & G. 20. 
 
 There are cases where an unlimited re- 
 straint is justified : e. g. the sale of a secret 
 process of manufacture of an article in 
 general demand, which it is agreed shall be 
 communicated for the exglusive benefit of the 
 buyer ; see L. R. 9 Eq. 45 ; so of the sale of 
 a patent right, the restraint may be unlimited 
 while the patent continues ; 1 H. & N. 189. 
 
 Some cases have required the presence of a 
 sufficient and reasonable consideration to 
 support a contract in restraint of trade ; 8 
 Mass. 223 ; 21 Wend. 158 ; see 3 Ohio St. 
 275 ; but in England a legally valid considera- 
 tion only is required ; 6 A. & E. 438. See, 
 generally, 1 Sm. L. C. 724 ; 35 Am. Rep. 
 269. 
 
 Conditions in wills in general restraint of 
 marriage are held void. The subject is en- 
 cumbered with many refined distinctions; 
 see 2 Jarm. Wills, *44 ; art. in 2 Law Mag. 
 & Rev. 419, 4th series. 
 
 RESTRAINING. Narrowing down ; 
 making less extensive. For example, a re- 
 straining statute is one by which the common 
 law is narrowed down or made less extensive 
 in its operation. Restraining powers are the 
 limitations or restrictions upon the use of a 
 power imposed by the donor. Restraining 
 order is an order granted on motion or peti- 
 tion, restraining the Bank of England or 
 other public company from allowing any deal- 
 ing with certain specified stock or shares. 
 Hunt, Eq. pt. iii. c. 8, s. 2. 
 
 RESTRICTIVE INDORSEMENT. 
 An indorsement which confines the nego- 
 tiability of a promissory note or bill of ex- 
 change by using express words to that effect : 
 as, by indorsing it payable to A B only. 1 
 Wash. C. C. 512; 2Murph. 138. 
 
 RESTS. A termusedin computing interest 
 especially on mortgages and in trust accounts. 
 It consists in striking a balance of the account, 
 at the end of any fixed period, upon which 
 interest is allowed, thus giving the benefit of 
 compound interest; Sm. Eq. 205, 320; 3 
 Pars. Con. *151. 
 
 RESULTING TRUST. A trust raised 
 by implication or construction of law, and 
 presumed to exist from the supposed inten- 
 tion of the parties and the nature of the 
 transaction. 
 
RESULTING USE 
 
 586 
 
 RETAINER 
 
 All trusts created by implication or construc- 
 tion of law are often included under the general 
 term Implied trusts ; but these are commonly 
 distinguished into implied or resulting and con- 
 structive trusts : resvXting or presumptive trusts 
 being those which are implied or presumed from 
 the supposed intention of the parties and the 
 nature of the transaction; constructive trusts, 
 such as are raised independently of any such 
 intention, and which are forced on the conscience 
 of the trustee by equitable construction and the 
 operation of law. Stofy, Eq. Jur. § 1095 ; 1 
 Spence, Eq. Jur. 510 ; 2 id. 198 ; 3 Swanst. 585 ; 
 1 Ohio, 321; 6 Conn. 285; 2 Edw. Ch.373; 6 
 Humphr. 93. 
 
 Where upon a purchase of property," the 
 conveyance of the legal estate is taken in the 
 name of one person, vrhile the consideration 
 is given or paid by another, the parties being 
 strangers to each other, a resulting or pre- 
 sumptive trust immediately arises by virtue of 
 the transaction, and the person named in the 
 conveyance will be a trustee for the party 
 from whom the consideration proceeds ; 30 
 Me. 126; 8 N. H. 187; 15 Vt. 525; 5 
 Cush. 435 ; 10 Paige, Ch. 618 ; 2 Green, Ch. 
 480 ; 18 Penn. St. 283 ; 2 Harr. Del. 225. 
 
 The fact that a conveyance is voluntary, 
 especially when accompanied by other cir- 
 cumstances indicative of such an intention, it 
 is said, may raise a resulting trust. See 2 
 Vern. 473 ; 23 Penn. 243 ; 29 Me. 410 ; 1 
 Johns. Ch. 240; 1 Dev. Eq. 456; 14 B. 
 Monr. 585. 
 
 Where a voluntary ; 1 Atk. 188 ; disposi- 
 tion of property by deed ; 1 Dev. Eq." 493 ; 
 or will is made to a person as trustee, and the 
 trust is not declared at all ; 10 Ves. 527 ; 19 
 id. 359 ; 3 Sim. 538 ; 6 Hare, 148 ; or is in- 
 effectually declared ; 10 Ves. 527; iMyl. & 
 C. 286 ; 13 Sim. 496 ; 2 Dev. Eq. 255 ; or 
 does not extend to the whole interest given to 
 the trustee ; 8 Pet. 326 ; 14 B. Monr. 585 ; 
 3 H. L. C. 492 ; 2 Vern. 644 ; or it fails 
 either wholly or in part by lapse or other- 
 wise; 1 Rop. Leg. 627; 5 Harr. & J. 392; 
 5 Paige, Ch. 318; 6 Ired. Eq. 137; 7 B. 
 Monr. 481 ; 15 Penn. 500; 10 Hare, 204; 
 the interest so undisposed of will be held by 
 the trustee, not for his own benefit, but as a 
 resulting trust for the donor himself, or for 
 his heir at law or next of kin, according to 
 the nature of the estate. 
 
 The property may be personal or real ; 8 
 Humphr. 447; 1 Ohio St. 10; 26 Miss. 
 615 ; 2 Beav. 454. 
 
 Consult Story, Bishp., on Equity Jur.; 
 Spence, Adams, Hill, Lewin, Sanders, on 
 Trusts. 
 
 RESULTING USE. A use raised by 
 equity for the benefit of a feoffor who has 
 made a voluntary conveyance to uses without 
 any declaration of the use. 2 Washb. R. P. 
 100. 
 
 The doctrine, at first limited to the case of 
 an apparently voluntary conveyance with no 
 express declaration, became so extended that 
 a conveyance of the legal estate ceased to 
 imply an intention that the feoffee should 
 
 enjoy the beneficial interest therein ; and if 
 no intent to the contrary was expressed, and 
 no consideration proved or implied, the use 
 always resulted to the feoffor ; 2 Washb. K. p, 
 100. And if part only of the use was expressed 
 the balance resulted to the feoffor; 2 Atk' 
 150 ; 2 RoUe, Abr. 781 ; Co. Litt. 23 a. And 
 under the statute, where a use has been lim! 
 ited by deed and expires, or cannot vest, it 
 results back to the one who declared it' 4 
 Wend. 494; 15 Me. 414; 5 W. & S. 323 • 
 And see Cro. Jac. 200 ; Tudor, Lead. Cas' 
 Eq. 258 ; 2 Washb. R. P. 132. 
 
 RESUMPTION. The taking again by 
 the crown of land or tenements, which, on 
 false suggestion, had been granted by letters 
 patent. Whart. Diet. 
 
 RETAIL. To sell by small parcels, and 
 not in the gross. 5 Mart. La. N. s. 297. 
 
 RETAILER OF MERCHANDISE. 
 One who deals in merchandise by selling it 
 in smaller quantities than he buys, — ^generally 
 with a view to profit. 1 Cra. C. C. 268. 
 
 RETAIN. In Practice. To engage the 
 services of an attorney or counsellor to man- 
 age a cause. See Retainer. 
 
 RETAINER. The act of withholding 
 what one has in one's own hands, by virtue 
 •of some right. See Administrator ; Ex- 
 ecutor ; Lien. 
 
 In Practice. The act of a client by which 
 he engages an attorney or counsellor to man- 
 age a cause, either by prosecuting it, when 
 he is plaintiff, or defending it, when be is 
 defendant. 
 
 The retaining fee. 
 
 In English practice a much more formal re- 
 tainer is usually required than in America. Thus 
 it is said by Chitty, 3 Pr. 116, note m, that, al- 
 though it is not indispensable that the retainer 
 should be in writing, unless required by the other 
 side, it is very expedient. It is therefore recom- 
 mended, particularly when the client is a 
 stranger, to require from him a written retainer, 
 signed by himself; and, in order to avoid the 
 Insinuation that it was obtained by contrivance, 
 it should be witnessed by one or more respect- 
 able persons. When there are several plaintiffl, 
 it should be signed by all, and not by one for 
 himself and the others, especially if they are 
 trustees or assignees of a bankrupt or insolvent. 
 The retainer should also state whether it be given 
 for a general or a qualified authority. See 9 
 Wheat. 788, 830 ; 6. Johns. 34, 896 ; 11 W. 464; 1 
 N. H. 83 : 38 id. 303 ; 7 Harr. & J. 275 ; 27 Miss. 
 567. 
 
 The effect of a retainer to proseoute,or 
 defend a suit is to confer on the attorney all 
 the powers exercised by the forms and usages 
 of the courts in which the suit is pending; 
 2 M'Cord, Ch. 409 ; 13 Mete. 269. He may 
 receive payment ; 13 Mass. 320 ; 4 Conn. 51 7 ; 
 39 Me. 386; 1 Wash. C. C. 10; 8 Pet. 18; 
 may bring a second suit after being nonsuited 
 in the first for want of formal proof; 12 Johns. 
 315 ; may sue a writ of error on the judg- 
 ment ; 16 Mass. 74 ; may discontinue the 
 suit ; 6 Cow. 385 ; nlay restore an action 
 after a nol. pros. ; 1 Binn. 469 ; may ol*"" 
 
RETAINING FEE 
 
 587 
 
 RETRACT 
 
 an appeal, and bind his client in his name for 
 the prosecution of it ; 1 Pick. 462 ; may sub- 
 mit the suit to arbitration; 1 Dall. 164; 16 
 Mass. 32.6 ; 8 Rich. 468 ; 6 McLean, 190 ; 7 
 Cra. 436 ; may sue out an alias execution ; 2 
 N. H. 376 ; may receive livery of seisin of 
 land taken by an extent ; 13 Mass. 363 ; may 
 waive objections to evidence, and enter into 
 stipulation for the admission of facts or con- 
 duct of the trial ; 2 N. H. 520; and for release 
 of bail ; 1 Murph. 146 ; may waive the right 
 of appeal, review, notice, and the like, and 
 confess judgment; 5 N. H. 393; 4 T. B. 
 Monr. 377; 5 Pet. 99. But he has no au- 
 thority to execute a discharge of a debtor but 
 upon the actual payment of the full amount 
 of the debt ; 8 Dowl. 656 ; 8 Johns. 361 ; 10 
 Vt. 471 ; 32 Me. 110 ; 21 Conn. 245 ; 8 Md. 
 Ch. Dec. 392; 14 Penn. 87; 13 Ark. 644; 
 1 Pick. 347; and that in money only; 16 
 111. 272; 1 Iowa, 360; see 6 Barb. N. Y. 
 201 ; nor to release sureties ; B J. J. Marsh. 
 632 ; 4 McLean, 87 ; nor to enter a retraxit ; 
 3 Blackf 137 ; nor to act for the legal re- 
 presentatives of his deceased client ; 2 Penn. 
 N. J. 689. 
 
 There is an implied contract on the part of 
 an attorney who has been retained, that he 
 will use due diligence in the course of legal 
 proceedings ; but it is not an undertaking to 
 recover a judgment; Wright, Ohio, 446. 
 See 3 Camp. 17 ; 7 C. & P. 289 ; 16 S. & R. 
 368; 2 Cush. 316. An attorney is bound 
 to act with the most scrupulous honor; he 
 ought to disclose to his client if he has any 
 adverse retainer which may affect his judg- 
 ment or his client's interest ; but the conceal- 
 ment of the fact does not necessarily imply 
 fraud ; 3 Mas. 305. See Weeks, Att. at Law. 
 
 RETAINING FEE. A fee given to 
 counsel on being consulted, in order to in- 
 sure his future services. See Retainer. 
 
 RETAINING A CAUSE. Under the 
 English Judicature Acts of 1873 and 1875, a 
 cause brought in a wrong division of the High 
 Court of Justice may be retained therein, at 
 the.discretion of the court or a judge. 
 
 RETAKING. The taking one's goods, 
 wife, child, etc. from another, who without 
 right has taken possession thereof. See Re- 
 caption; Rescue. 
 
 RETALIATION. See Lex Talionis. 
 
 RETENTION. In Scotch Law. The 
 right which the possessor of a movable has of 
 holding the same until he shall be satisfied for 
 his claim either against such movable or the 
 owner of it ; a lien. 
 
 General retention is the riglit to withhold 
 or detain the property of another, in respect 
 of any debt which happens to be due by the 
 proprietor to the person who has the custody, 
 or for a general balance of accounts arising 
 on a particular train of employment. 2 Bell, 
 Com. 90. 
 
 Special retention is the right of withholding 
 or retaining property or goods which are in 
 one's possession under a contract, till indem- 
 
 nified for the labor or money expended on 
 them. 
 
 RETIRE. As applied to bills of ex- 
 change, this word is ambiguous. It is com- 
 monly used of an indorser who takes up a 
 bill by handing the amount to a transferee, 
 after which the indorser holds the instrument 
 with all his remedies intact. But it is some- 
 times used of an acceptor, by whom when a 
 bill is taken up or retired at maturity, it is in 
 effect paid, and all the remedies on it extin- 
 guished ; Byles, Bills, *222. 
 
 RETORNA BREVIUM. In Old Eng- 
 Ush liaMT. The return of writs by sheritts 
 and bailiffs, which is only a certificate de- 
 livered to the court on the day of return, of 
 that which he hath done touching the execu- 
 tion of their writ directed to him : this must 
 be indorsed on back of writ by officer; 2 
 Lilly, Abr. 476. Each term has return days, 
 fixed, as early as 51 Hen. III., at intervals of 
 about a week, on which all original writs are 
 returnable. The first return day is regularly 
 the first day i}> the term ; but there are three 
 days' grace. 3 Bla. Com. 278. 
 
 RETORNO HABENDO. In Practice. 
 A writ issued to compel a party to return pro- 
 perty to the party to whom it has been ad- 
 judged to belong, in an action of replevin. 
 
 Thus, where the property taken was cattle, It 
 recites that the defendant was summoned to ap- 
 pear to answer the plaintiff in a plea whereof he 
 took of the cattle of the said plaintiff, specifying 
 them, and that the said plaintiff afterwards made 
 default, wherefore it was then considered that 
 the said plaintiff and his pledges of prosecuting 
 should be in mercy, and that the said defendant 
 should go without day, and that he should have 
 return of the cattle aforesaid. It then commands 
 the sheriff that he should cause to be- returned 
 the cattle aforesaid to the said defendant with- 
 out delay, etc. 2 Sell. Pr. 168. 
 
 R&TORSION. The name of the act em- 
 ployed by a government to impose the same 
 hard treatment on the citizens or subjects of 
 a state that the latter has used towards the 
 citizens or subjects of the former, for the pur- 
 pose of obtaining the removal of obnoxious 
 measures. Vattel, liv. 2, c. 18, § 341 ; De 
 Martens, PrScis, liv. 8, c. 2, § 254 ; Kliiber, 
 Droit des Gens, s. 2, c. 1, § 234. 
 
 The act by which an individual returns to 
 his adversary evil for evil ; as, if Peter call 
 Paul thief, and Paul says, You are a greater 
 thief. 
 
 RETOT7R SANS FROTET. A rec|uest 
 or direction by the drawer of a bill of ex- 
 change, that in case the bill should not be 
 honored by the drawee, it may be returned 
 without protest, by writing the words "re- 
 tour sans protet" or " sans pais." Should 
 such request be made, it is said that a protest 
 as against the drawer, and perha™ as against 
 the indorsers, is unnecessary ; Byles, Bills, 
 *260. 
 
 RETRACT (Lat. re, back, traho, to 
 draw). To withdraw a proposition or offer 
 before it has been accepted. 
 
RETRAXIT 
 
 588 
 
 RETURN OP PREMIUM 
 
 This the party making it has a right to do 
 as long as it has not been accepted ; for no 
 principle of law or equity can, under these 
 circumstances, require him to persevere in it. 
 See Opfek. 
 
 After pleading guilty, a defendant will, 
 in certain cases where he has entered that 
 plea by mistake or in consequence of some 
 error, be allowed to retract it. But where a 
 prisoner pleaded guilty to a charge of larceny, 
 and sentence has been passed upon him, he 
 will not be allowed to retract his plea and 
 plead not guilty; 9 C. & P. 346; Dig. 12. 
 4. 5. 
 
 RETRAXIT (Lat. he has withdrawn) . In 
 Practice. The act by which a plaintiff with- 
 draws his suit. It is so called from the fact 
 that this was the principal word used when 
 the law entries were in Latin. 
 
 A retraxit differs from a nonsuit — the former 
 being the act of the plaintiff himself, for it can- 
 not even be entered by attorney ; 8 Co. 58 ; 8 
 Fenn. 157, 163 ; and it must be after declara- 
 tion filed ; 3 Leon. 47 ; 8 Penn. 163 ; while the 
 latter occurs in consequence of the neglect 
 merely of the plaintiff. A retraxit also differs 
 from a nolle prosequi. The effect of a retraxit is 
 a bar to all actions of a like or a similar nature ; 
 Bacon, Abr. Nonsuit (A) ; a nolle prosequi is 
 not a bar even in a criminal prosecution ; 2 Mass. 
 173. See 2 Sell. Pr. 338 ; Bacon, Abr. Nonsuit i 
 Comyns, Dig. Pleader (X 2). 
 
 RETRIBUTION. That which is given 
 to another to recompense him for what has 
 been received from him: as, a rent for the 
 hire of a house. 
 
 A salary paid to a person for his services. 
 
 The distribution of rewards and punish- 
 ments. 
 
 RETROCESSION. In CivU Lavr. 
 
 When the assignee of heritable rights con- 
 veys his rights back to the cedent, it is called 
 a retrocession. Erskine, Inst. 3. 5. 1 ; Diet, 
 de Jur. 
 
 RETROSPECTIVE (Lat, retro, back, 
 »pec(a)-e, to look). Looking backward. Hav- 
 ing reference to a state of things existing be- 
 fore the act in question. 
 
 This word is usually applied to those 
 acts of the legislature which are made to 
 operate upon some subject, contract, or crime 
 which existed before the passage of the acts ; 
 and they are therefore called retrospective 
 laws. These laws are generally unjust, and 
 are to a certain extent forbidden by that ar- 
 ticle in the constitution of the United States, 
 which prohibits the passage of ex post facto 
 laws, or laws impairing contracts. See Ex 
 Post Facto Law. 
 
 The right to pass retrospective laws, with 
 the ex-ceptions above mentioned, exists in the 
 several states, according to their own consti- 
 tutions, and they become obligatory if not 
 prohibited by the latter; 4 S. & R. 364; 1 
 Bay, 179 ; 7 Johns. 477. See 3 S. & R. 169 ; 
 2Cra. 272; 2 Pet. 414; 8 id. 110; Hid. 
 420; Baldw. 74; 18 Ind. 237; 19 Iowa, 
 388 ; 52 Penn. 474. 
 
 An instance may be found in the laws of 
 Connecticut. In 1795, the legislature passed 
 a resolve setting aside a decree of a court of 
 probate disapproving of a will, and granted a 
 new hearing: it was held that the resolve 
 not being against any constitutional principle 
 in that state, was valid; 3 Dall. 386. Andin 
 Pennsylvania a judgment was opened by the 
 act of April 1, 1837, which was holden by the 
 supreme court to be constitutional : 2 W & 
 S. 271. 
 
 Laws should never be considered as apply. 
 ing to cases which arose previously to their 
 passage, unless the legislature have clearly 
 declared such to b^ their intention; 12 La. 
 352. See Harrington, Stat. 466, n.; 7 Johns] 
 477; 1 Kent, 455 ; Code, 1. 14. 7 ; Bracton' 
 1. 4, f. 228 ; Story, Const. S 1393 ; 1 McLean 
 40;.l Meigs, 437; 3 Dall. 391 ; 1 Blackfi 
 193 ; 2 Gall. 139 ; 1 Yerg. 360 ; 12 S. & R. 
 330. See Ex post Facto Law; Impaib- 
 ING the Obligation or Contracts; 
 Wade, Retrosp. Leg. 
 
 RETURN. Persons who are beyond 'the 
 sea are exempted from the operation of ihe 
 statute of limitations of Pennsylvania, and of 
 other states, ''till after a certain time has 
 elapsed after their returning. As to what 
 shall be considered a return, see 14 Mass, 
 203 ; 1 Gall. 342 ; 3 Johns. 263 ; 2 W. 
 Blackst. 723 ; 3 Litt. 48 ; 1 Harr. & J. 89, 
 350. 
 
 When a member of parliament has been 
 elected to represent a certain constituency, he 
 is said to be returned, in reference to the re- 
 turn of the writ directing the proper officer 
 to hold the election. In this country, elec- 
 tion returns are the statements or reports of 
 the balloting at an election, by the proper of- 
 ficers. 
 
 RETURN-DAY. A day appointed hv 
 law when all writs are to be returned which 
 have issued since the preceding return-day- 
 The sheriff is, in general, not required to re. 
 turn his writ until the return-day. After 
 that period he maybe ruled to make a returns 
 
 RETURN OF PREMIUM. In Inanr- 
 ance. A repayment of a part or the whole 
 of the premium paid. PoKcies of insurance, 
 especially those on marine risks, not nnfre- 
 quently contain stipulations for a return of the 
 whole or a part of the premium in certain 
 contingencies ; 2 Phill. Ins. xxii. sect. xi.| 
 but in the absence of any such stipulatioHi in 
 a case free of fraud on the part of the assured, 
 if the risk does not commence to run he is en- 
 titled to a return of it, if paid, or an exoner- 
 ation from his liability to pay_ it, subject to 
 deduction settled by stipulation or usage; 
 and so, pro rata, if only a part of the insured 
 subject is put at risk ; 2 Phill. Ins. eh. xxn. 
 sect, i.; and so an abatement of the excess 
 of marine interest over the legal rate is made 
 in hypothecation of ship or cargo in like case j 
 id. ibid. sect, vii.; Boulay-Pafy, Droit Com. 
 p. 63, ed. of 1822 ; Pothier, Gout, i, » 
 Grosse, n. 39. 
 
RETUEN OF WRITS 
 
 689 
 
 REVERSION 
 
 RETURN OF WRITS. In Practice. 
 A short account, in writing, made by the 
 sheriff, or other ministerial officer, of the 
 manner in which he has executed a writ. 
 Steph. PI. 24. 
 
 It is the duty of such officer to return all 
 writs on the return-day : on his neglecting to 
 do so, a rule may be obtained on him to re- 
 turn the writ, and if he do not obey the rule 
 he fflay be attached for contempt. See 19 
 Viner, Abr. 171; Comyns, Dig. Returti; 2 
 Lillv, Abr. 476 ; Wood, Inst. b. 1, c. 7 ; 
 1 Eawle, 520. 
 
 Rti0S (Lat.). In Civil Law. A party to 
 a suit, whether plaintiff oa defendant. Beus 
 est qui cum altera litum contestatum habet, 
 sive id egit, sioe cum eo actum est. 
 
 A party to a contract. Reus credendi is 
 he to whom something is due, by whatever 
 title it may be ; reus debendi is he who 
 owes, for whatever cause. Fothier, Fand 
 lib. 50. 
 
 REVELAND. In Domesday Book we 
 find land put down as thane-lands, which 
 were afterwards converted into revelands, 
 i.e. such lands as, having reverted to the king 
 upon death of his thane, who had it for life, 
 were not since granted out to any by the 
 king, but vested in charge upon account of 
 the reve or bailiflf of the manor. Spelm. 
 "Feuds, c. 24. Coke was mistaken in thinking 
 it was land held in socage. 
 
 REVENDICATION. In ClvU Law. 
 
 An action by which a man demands a thing 
 of which he claims to be owner. It applies 
 to immovables as well as movables, to cor- 
 poreal or incorporeal things. Merlin, R6- 
 pert. 
 
 By the civil law, he who has sold goods for 
 cash or on credit may demand them back 
 from the purchaser if the purchase-money 
 13 not paid according to contract. The ac- 
 tion of revendication is used for this purpose. 
 Bee an attempt to introduce the principle of 
 revendication into our law, in 2 Hall, Law 
 Jonrn. 181. 
 
 Revendication, in another sense, corre- 
 sponds very nearly to the stoppage in transitu 
 of the common law. It is used in that sense 
 in the Code de Commerce, art. 577. Reven- 
 dication, says that article, can take place only 
 when the goods sold are on the way to their 
 place of destination, whether by land or water, 
 and before they have been received into the 
 warehouse of the insolvent (failli) or that of 
 lis factor or agent authorized to sell them on 
 'account of the insolvent. See Dig. 14. 4. 15 ; 
 18.1. 19. 53; 19. 1.11. 
 
 REVENUE. The income of the govern- 
 ment arising from taxation, duties, and the 
 'like ; and, according to some correct lawyers, 
 ■under the idea of revenue is also included 
 the proceeds of the sale of stocks, lands, and 
 other property owned by the government. 
 Stoiy, Const. § 877. By revenue is also un- 
 
 derstood the income of private individuals 
 and corporations. 
 
 A bill establishing rates of postage la not a 
 bill for raising revenue, within the meaning of 
 the constitution ; but post-offlce laws may be 
 revenue laws without be&g laws for raising rev- 
 enue; 13 Blatohf. 207. See 15 Wall. 390; 4 
 Blatch. 311 ; 15 Int. Kev. Kec. 30. 
 
 REVENUE SIDE OF TH£^ EX- 
 CHEQUER. That jurisdiction of the court 
 of exchequer, or of the exchequer division of 
 the high court of justice, by which it ascer- 
 tains and enforces the proprietary rights of 
 the crown against the subjects of the realm. 
 The practice in revenue cases is not affected 
 by the orders and rules under the judicature 
 act of 1875. Moz. & W. 
 
 REVERSAL. In International Law. 
 
 A declaration by which a sovereign promises 
 that he will observe a certain order, or cer- 
 tain conditions, which have been once estab- 
 lished, notwithstanding any changes that 
 may happen to cause a deviation therefrom : 
 as, for example, when the French court con- 
 sented for the first time, in 1745, to grant 
 to Elizabeth, the czarina of Russia, the title 
 of empress, it exacted as a reversal a declara- 
 tion purporting that the assumption of the 
 title of an imperial government by Russia 
 should not derogate from the rank which 
 France had held towards her. 
 
 Letters by which a sovereign declares that 
 by a particular act of his he does not mean to 
 prejudice a third power. Of this we have an 
 example in history : formerly the emperor of 
 Germany, whose coronation, according to the 
 golden ball, ought to have been solemnized at 
 Aix-la-Chapelle, gave to that city, when he 
 was crowned elsewhere, reversals, by which 
 he declared that such coronation took place 
 without prejudice to its rights, and without 
 drawing any consequences therefrom for the 
 future. 
 
 In Practice. The decision of a superior 
 court by which the judgment, sentence, or 
 decree of the inferior court is annulled. 
 
 After a judgment, sentence, or decree has 
 been rendered by the court below, a writ of 
 error may be issued from the superior to the 
 inferior tribunal, when the record and all pro- 
 ceedings are sent to the supreme court on the 
 return to the writ of error. When, on the 
 examination of the record, the superior court 
 gives a judgment diflferent from the inferior 
 court, they are said to reverse the proceeding. 
 As to the effect of a reversal, see 9 C. ScP. 
 513. See Revekse. 
 
 REVERSE, REVERSED. A term fre- 
 quently used in the judgments of an appellate 
 court, in disposing of the case before it. It 
 then means " to set aside, to annul, to va- 
 cate." 7 Kans. 254. 
 
 REVERSION. The residue of an estate 
 left in the grantor, to commence in possession 
 after the determination of some particular 
 estate granted out by him. The return of 
 
REVERSIONARY INTEREST 590 
 
 REVOCATION 
 
 land to the grantor and his heirs after the 
 grant is over. Co. Litt. 142 6 ; 2 Bla. Com. 
 175; 4 Kent, 354. 
 
 The reversion is a vested interest or estate 
 and arises by operation of law only. In this 
 latter respect it differs from a remainder, which 
 can never arise except either by will or deed ; 
 Cruise, Dig. tit. 17; 4 Kent, 345; 19 Vin. 
 Abr. 317. A reversion is said to be an 
 incorporeal hereditament ; 4 Kent, 354 ; 1 
 Washb. R. P. 37, 47. See Remainder; 
 I4MITAT10N. 
 
 REVERSIONARY INTEREST. The 
 interest which one has in the reversion of 
 lands or other property. The residue which 
 remains to one who has carved out of his 
 estate a lesser estate; See Reversion. An 
 interest in the land when possession shall fail. 
 Cowel. 
 
 REVERSOR. In Scotch Law. A 
 debtor who makes a wadset, and to whom the 
 right of reversion is granted. Erskine, Inst. 
 2. 8. 1. A reversioner.' Jacob, Law. Diet. 
 
 REVERTER. Reversion. A possibility 
 or reverter is that species of reversionary 
 interest which exists when the grant is so 
 limited that it may possibly terminate. See 
 1 Washb. R. P. 63. 
 
 REVIEW. In Practice. A second ex- 
 amination of a matter. For example, by the 
 laws of Pennsylvania, the courts having juris- 
 diction of the subject may grant an order for 
 a view of a proposed road ; the reviewers 
 make a report, which, when confirmed by the 
 court, would authorize the laying out of the 
 same. After this, by statutory provision, 
 the parties may apply for a review or second 
 examination, and the last viewers may make 
 a different report. For the practice of re- 
 views in chancery, see Bii.L of Review. 
 A bill of review is the appropriate mode of 
 correcting errors apparent on the face of the 
 record; 103 U. S. 766. 
 
 REVIEW, COURT OP. In England. 
 A court of appeal in bankruptcy cases, estab- 
 lished in 1832 and abolished in 1847. Rob- 
 son, Bkcy. 
 
 REVISED STATUTES OP THE 
 UNITED STATES. The Revised Statutes 
 were enacted June 22, 1874, and, when 
 printed in 1875, embraced the laws, general 
 and permanent in their nature, in force De- 
 cember 1, 1873. A second edition was com- 
 pleted in the latter part of 1878, and includes 
 only the specific amendments passed by the 
 forty-third and forty-fourth congresses, with 
 references to some other acts. The period 
 from 1874 to 1880 is provided for by a sup- 
 plement published in 1881, without which 
 the Revised Statutes are not altogether a 
 safe guide to existing laws. See Preface to 
 Supplement to Rev. Stat. 
 
 Transactions subsequent to the enactment of 
 the Revised Statutes must be determined by the 
 law as there found, and not by the earlier stat- 
 utes incorporated- therein. In eases of ambi- 
 guity or uncertainty, the previous statutes may 
 
 be referred to to elucidate the legislative intent 
 but where the language is clear, the Revised Stati 
 utes must govern. The second edition is neither 
 a new revision nor a new enactment ; it is only 
 a new publication, a compilation containing the 
 original law with certain specific alterfttions and 
 amendments made by subsequent legislation in- 
 corporated therein according to the judgment oi 
 the editor, who had no discretion to correct 
 errors or supply omissions ; 15 Ct. CI. 80. 
 
 REVISING BARRISTERS. InEng. 
 liah Law. Barristers appointed to revise 
 the list of voters for county and borough 
 members of parliament, and who hold court] 
 for that purpose throughout the county, being 
 appointed in July cr August. 6 Vict. c. 18. 
 
 REVIVAL. Of Contracts. An agree- 
 ment to renew the legal obligation of a just 
 debt after it has been barred by the act of 
 limitation or lapse of time is called its re- 
 vival. 
 
 In Practice. The act by whichajudg. 
 ment which has lain dormant or without any 
 action upon it for a year and a day is, at com. 
 mon law, again restored to its original 
 force. 
 
 When a judgment is more than a day and 
 a year old, no execution can issue upon it at 
 common law ; but till it has been paid, or the 
 presumption arises from lapse of time that it 
 has been satisfied, it may be revived and have 
 all its original force, which was merely sus- 
 pended. This may be done by a scire facial 
 or an action of debt on the judgment. See 
 Scire Facias. 
 
 REVOCATION (Lat. re, back, vocare, to 
 call) . The recall of a power or authority 
 conferred, or the vacating of an instrument 
 previously made. 
 
 Revocation of grants. Grants may be re- 
 voked by virtue of a power expressly reserved 
 in the deed, or where the grant is without 
 consideration or in the nature of a testamen- 
 tary disposition ; 3 Co. 25. 
 
 Voluntary conveyances, being without pe- 
 cuniary or other legal consideration, may be 
 superseded or revoked, in effect, by a subse- 
 quent conveyance of the same subject-matter 
 to another for valuable consideration. And 
 it will make no difiTerence that the first con- 
 veyance was meritorious, being a voluntary 
 settlement for the support of one's self or 
 family, and made when the grantor was not 
 indebted, or had ample means besides for the 
 payment of his debts. And the English cases 
 hold that knowledge of the former deed will 
 not affect the rights of the subsequent pur- 
 chaser; 9 East, 59 ; 4 B. &P. 332; 8 Term, 
 528 ; 2 Taunt. 69 ; 18 Ves. 84. See, also, 
 the exhaustive review of the American cases, 
 in note to Sexton vs. Wheaton, 1 Am. Lead. 
 Cas. 36. 
 
 In America, it is generally held that a 
 voluntary conveyance which is also fraudu- 
 lent, is void as to subsequent bona /<if P"'" 
 chasers for value with notice.; but il not 
 fraudulent in fact, it is only void as to ^hose 
 purchasing without notice ; 18 Pick. 131 ; ^ 
 
REVOCATION 
 
 591 
 
 REVOCATION 
 
 B. Monr. 345 ; 10 Ala. N. s. 348, 352 ; 12 
 Johns. 636, 557; 4 McCord, 295. See 
 Fraudulent Conveyance. 
 
 The fact that the voluntary grantor sub- 
 sequently conveys to another, is regarded as 
 primcl facie evidence that the former deed 
 was fraudulent as to subsequent purchasers 
 ■without notice, or it would, not have been re- 
 voked; 5 Pet. 266; 4 M'Cord, 295; 3 
 Strobh. 59 ; 1 Rob. Va. 500, 544. 
 
 In some of the states, notice of the volun- 
 tary deed will defeat the subsequent pur- 
 chaser; 1 Rawle, 231 ; 6 Md. 242; 4 M'- 
 Cord, 296; 2 M' Mull, 608; 1 Bail. 575; 15, 
 Ala. 525 ; 5 Pet. 265. But in other states 
 the English rule prevails; 1 Yerg. 13; 5 id. 
 250; 1 A. K. Marsh. 208; 1 Dana, 531 ; 3 
 Ired. Eq. 81. _ 
 
 There is a distinction between the creditors 
 of the grantor by way of family settlement 
 (he being not insolvent or in embarrassed 
 circumstances), and a subsequent purchaser 
 for value. The claim of the latter is regarded 
 as superior to a mere creditor's, whether prior 
 or subsequent to the voluntary conveyance, 
 — especially if he buy without notice. Some 
 of the foregoing cases do not advert to this 
 distinction; 3 Ired. Eq. 81; 4 Vt. 389. 
 
 So, too, if one bail money or other valu- 
 ables to another, to be delivered to a third 
 person on the day of marriage, he may 
 countermand it at any time before delivery 
 over ; 1 By. 49. But if such delivery be 
 made in payment or security of a debt, or 
 for other valuable consideration, it is not re- 
 vocable; 1 Stra. 165. And although the gift 
 be not made known to the donee, being for 
 his benefit, his assent will be presumed until 
 he expressly dissents ; 3 Co. 26 6 ; 2 Salk. 
 618. 
 
 Powers of appointment to uses are revoca, 
 ble if so expressed in the deed of settle- 
 ment. But it is not indispensable, it is said- 
 that this power of revocation should be re- 
 peated in each successive deed of appoint- 
 ment, provided it exist in the original deed 
 creating the settlement ; 4 Kent, 336 ; 1 Co. 
 110 6; 1 Ch. Cas. 201; 2 id. 46; 2 Bla. 
 Comm. 339. 
 
 It has been said that the power of revoca- 
 tion does not include the appointment of new 
 uses; 2 Freem. 61 ; Pr. in Ch. 474. 
 
 A voluntary deed of trust, without power 
 of revocation, made with a nominal consider- 
 atioTij and without legal advice as to its effect, 
 when there was evidence that its effect was 
 misunderstood by the grantor, will be set 
 aside in equity; 13 Am. L. Reg. N. s. 345, 
 and note. S. C. ,24 N. J. Eq. 243. In a sim- 
 ilar case it was held that the mere omission of 
 counsel to advise the insertion of a power of 
 revocation is not a ground to set aside the 
 deed ; but that this omission and the absence 
 of the power are circumstances tending to 
 show that the act was not done with a de- 
 liberate intent. The deliberate intent of 
 a party to tie up his hands should clearly 
 appear. In the absence of such an in- 
 
 tent the omission of a power to revoke is 
 prima facie evidence of mistake. The mis- 
 take beina; one of fact mixed with legal effects, 
 equity will relieve; 75 Penn. 269; the 
 earlier English cases seem to have insisted 
 upon the presence of a power of revocation 
 in voluntary settlements ; L. R. 8 Eq. 568 ; 
 14 id. 365 ; but in a later case it was held 
 that the absence of such a power was merely 
 a circumstance of more or less weight, ac- 
 cording to the other circumstances of each 
 case ; L. R. 8 Ch. Ap. 430. 
 
 The Revocation of Powers confer- 
 red UPON Agents. See Agency. 
 
 The American courts, following the case of 
 Brown vs. M'Gran, 14 Pet. 479, hold that the 
 consignee of goods for sale, who has incurred 
 liability or made advances upon the faith of 
 the consignment, acquires a power of sale 
 which, to the exjtent of his interest, is not re- 
 vocable or subject to the control of the con- 
 signor. But if orders are given by the con- 
 signor, contemporaneously with the consign- 
 ment and advances, in regard to the time and 
 mode of sale, and which are, either expressly 
 or impliedly, assented to by the consignee, he 
 is not at liberty to depart from them after- 
 wards. But if no instructions are given at 
 the time of the consignment and advances, 
 the legal presumption is that the consignee 
 has the ordinary right of factors to sell, ac- 
 cording to the usages of trade and the gen- 
 eral duty of factors, in the exercise of a sound 
 discretion, and reimburse the advances out of 
 the proceeds, and that this right is not sub- 
 ject to the interference or control of the con- 
 signor. See 52 Miss. 7 ; 45 Ind. 116. 
 
 The right of the factor to sell in such case 
 is limited to the protection of his own interest, 
 and if he sell more than is necessary for that 
 purpose contrary to the order of his principal, 
 he IS liable for the loss incurred ; 37 Conn. 
 378. 
 
 The case of Parker vs. Brancker, 22 Pick. 
 40, seems to go to the length of holding that 
 where the consignment is to sell at a limited 
 price the consignee may after notice sell below 
 that price, if necessary, to remimburse ad- 
 vances. But to this extent the American 
 rule has not gone; 1 Pars. Contr. 69, u. (h). 
 See, also, 12 N. H. 239 ; 3 N. Y. 78. 
 
 The English courts do not hold such a power 
 irrevocable in law ; 3 C. B. 380 ; 5 id. 895. 
 In the last case, Wilde, C. J., thus lays 
 down the rule. It may furnish a ground for 
 inferring that the advances were made upon 
 the footing of an agreement that the factor 
 shall have an irrevocable authority to sell in 
 case the principal made default. But it 
 would be an inference of fact, not a conclu- 
 sion of law. The fact that the agent has 
 incurred expense in faith of the authority 
 being continued, and will suffer loss by its 
 revocation, is a ground of recovery against 
 the principal, but. does not render the power 
 irrevocable. 
 
 A pledge of personal property to secure 
 liabilities of the pledgeor, with an express 
 
EEVOCATION 
 
 592 
 
 REVOCATION 
 
 power of sale, confers such an interest in the 
 subject-matter that it will not be revoked by 
 his death ; 10 Paige, Ch. 205. But a power 
 to pledge or sell the property of the constituent 
 and from the avails to reimburse advances 
 made or liabilities incurred by the appointee 
 is not so coupled with an interest as to be 
 irrevocable; 8 Wheat. 174; 6 Conn. 559. 
 The interest must exist in the subject-matter 
 of the power, and not merely in the result of 
 its exercise, to become irrevocable ; 1 5 N. H. 
 468 ; 20 Ohio St. 185. Hence, if one give a 
 ietter of credit agreeing to accept bills to a 
 certain amount within a limited time, the 
 letter is revoked by death, and bills drawn 
 after the death and before knowledge thereof 
 reaches the drawer cannot be enforced against 
 the estate of such deceased party ; 28 Vt. 
 209. 
 
 All contracts which are tp be executed in 
 the name of the constituent by virtue of an 
 agency, although forming an essential part of 
 a security upon the faith of which advances 
 have been made, are of necessity revoked by 
 the death of the constituent. Even a war- 
 rant of attorney to confess judgment, although 
 not revocable by the act of the party, is re- 
 voked by his death. The courts, however, 
 allow judgment in such cases to be entered as 
 of a term prior to the death of the constitu- 
 ent ; 2 Kent, 646 ; 9 Wend. 452 ; 8 Wheat. 
 174. See, also, 2 Ld. Kaym. 766, 849, 
 where the form of procedure is discussed ; 7 
 Mod. 93 ; Stra. 108. A warrant of attorney 
 to confess judgment, executed by a feme sole, 
 is revoked by her marriage ; but if executed 
 to Si feme sole, the courts will allow judgment 
 to be entered up in the name of the husband 
 and wife; 1 Salk. 117; 1 P. A. Browne, 
 253; 3 Harr. Del. 411. 
 
 The Powers of Aebitkators. These 
 are revocable by either party at any time be- 
 fore final award ; 20 Vt. 198. It is not com- 
 petent for the parties to deprive themselves of 
 this power by any form of contract ; 8 Co. 
 80; 16 Johns. 205. But where the submis- 
 sion releases the original cause of action, and 
 the adversary revokes, the party so releasing 
 may recover the amount so released by way 
 of damages caused by the revocation ; 13 Vt. 
 97. 
 
 Where the submission is made a rule of 
 court, it becomes practically irrevocable, 
 since such an act would be regarded as a con- 
 tempt of court and punishable by attachment ; 
 7 East, 608. This is the only mode of mak- 
 ing a submission irrevocable ' ' when the fear 
 of an attachment may induce them to sub- 
 mit;" 6 Bingh. 443. 
 
 In the American courts a submission by rule 
 of court is made irrevocable by the express 
 provisions of the statutes in most of the 
 states, and the referee is required, after due 
 notice, to hear the case ex parte, where either 
 party fails to appear ; 12 Mass. 47; 1 Conn. 
 498; 3 Halst. 116; 4 Me. 469; 5Penn. 497; 
 3 Ired. 333. In Ohio, a submission under 
 the statute is irrevocable after the arbitrators 
 
 are sworn ; 19 Ohio St._ 245 ; and it has been 
 held that a naked submission is not revocable 
 after the arbitrator has made his award and 
 published it to one of the parties ; 6 N. H. 
 36. But while a statute rec|uisite, as being 
 witnessed, is not complied with, it is incom- 
 plete and so the submission revocable- S 
 Paige, Ch. 575. ' 
 
 When one party to the submission consists 
 of several persons, one cannot revoke without 
 the concurrence of the others ; 1 Brownl. 62 • 
 RoUe, Abr. Authority (H) ; 12 Wend. 578.' 
 But the text-writers are not fully agreed in 
 this proposition ; see Russ. Arb. 141 ; 2 
 Chitty, Bail. 452, where it was held that the 
 death of one of several parties on one side of 
 the submission operates as a revocation m to 
 such party at least, and that an award made 
 in the name of the survivors and the exeeu- 
 tor of the deceased party is void. It is here 
 intimated by way of query whether, -where 
 the cause of action survives, the award might 
 not legally be made in^the name of the sur- 
 viving party. See Russ. Arb. 155. 
 
 An award made after the revocation of 
 the submission is entirely void ; 1 Sim. 134. 
 
 The power of the arbitrator is determined 
 b^ the occurrence of any fact which incapa- 
 citates the party from proceeding with the 
 hearing. The marriage of a feme sole is a re- 
 vocation of the arbitrator's power; 2 Keb). 
 865; 11 Vt. 525; without notice to the ar- 
 bitrators ; Russ. Arb. 152. So, also, if she 
 be joined with another in the submission, her 
 marriage is a revocation as to both ; W. Jones, 
 228 ; Rolle, Abr. Authority. 
 
 Insanity in either party, or in the arbitra- 
 tor, will determine his authority. The death 
 of either party, or of the arbitrator, or one of 
 them, or where the arbitrators decline to act, 
 will operate as a revocation of the submission; 
 Caldw. Arb. 90; 17 Ves. 241; 4 T. B. 
 Monr. 3 ; 1 B. & C. 66. 
 
 It is competent to make provision in the 
 submission for the completion of the award, 
 notwithstanding the death of one of the 
 parties, by proceedings in the name of the 
 personal representative. This seems to be the 
 general practice in England in late years; 8 
 
 B. & C. 144 ; 6 Bing. n. c. 168 ; 8M. & W. 
 873. And in some of the American states 
 it is held that a submission by rule of court is 
 not determined by the death of the party, 
 where the cause of action survives, hut may 
 be revived and prosecuted in the name of the 
 personal representative; 15 Pick. 79; S 
 Halst. 116; 3 Gill, 190. Bankruptcy of the 
 party does not operate to revoke a submission 
 to arbitration ; Caldw. Arb. 89. But it seems 
 to be considered in Marsh »». Wood, 9 B. & 
 
 C. 669, that the bankruptcy of one party will 
 justify the other in revoking. But see 2 Cbitt. 
 Bail, 43 ; 1 C. B. 131. 
 
 The time when the revocation becomes op- 
 erative. Where it is by the express act of 
 the party, it will be when notice reaches the 
 arbitrator ; Caldw. Arb. 80 ; 6 B. & Aid. 
 607 ; 8 Co. 80. But in the case of death, or 
 
REVOCATUR 
 
 593 
 
 REWARD 
 
 marriage, or Insanity, the act itself terminates 
 the power of the arbitrator at once, and all 
 acts thereafter done by him are of no force ; 
 11 Vt. 525; 5 East, 266. 
 
 The form of the revocation is not important, 
 if it be in conformity with the submission, or 
 if, when it is not, it be acquiesced in by the 
 other party; 7 Vt. 237. 
 
 It is said in the books that the revocation 
 must be of as high grade of contract as the 
 submission. This seems to be assumed by 
 the tex1> writers and judges as a settled pro- 
 position; Caldw. Arb. 79 ; 8 Co. 82; Brownl. 
 62; 8 Johns. 125. Where the submission is in 
 writing, the revocation "ought to be in writ- 
 ing;" 18 Vt. 91. But see 7 Vt. 237, 240; 
 15 N. H. 468. It seems questionable whether 
 at this day a submission by deed would re- 
 quire to be revoked by deed, since the revo- 
 cation is not a contract, but a mere notice, 
 and no special right is conferred upon such 
 an act by the addition of wax or wafer ; 8 
 Ired. 74. See 2 Keb. 64. But see 26 Me. 
 251, contra. But it is conceded the party 
 ifiay revoke by any act which renders it imprac- 
 ticable for the arbitrators to proceed ; 7 Mod. 
 8 ; Story, Ag. 474. 
 
 So a revocation imperfectly expressed, as 
 of the bond instead of the submission, will 
 receive a favorable construction, in order to 
 affectuate the intention of the party ; 1 Cow, 
 325. 
 
 It has been held, too, that bringing a suit 
 upon the same cause of action embraced in 
 the submission, at any time before the award, 
 was an implied revocation; 6 Dana, 107; 
 Caldw. Arb. 80. 
 
 The Power of a Partner to contract 
 in the name of the firm may be revoked, by 
 injunction out of chancery, where there is a 
 wanton or fraudulent violation of the contract 
 constituting the association ; 1 Story, Eq. 
 Jur. § 673. This will sometimes be done on 
 account of the impracticability of carrying on 
 the undertaking ; 1 Cox, Ch. 213 ; 2 V. & 
 B. 299. So, too, such an injunction might 
 be granted on account of the insanity or per- 
 manent incapacity of one of the partners ; 1 
 Story, Eq. Jur. § 673. But insanity is not 
 alone sufficient to produce a dissolution of the 
 partnership; 2 My. & K. 126. See Part- 
 nership. 
 
 An Oral License to occupy land is, 
 where the Statute of Frauds prevails, revoca- 
 ble at pleasure, unless permanent and ex- 
 pensive erections have been made by the li- 
 censee in faith of the permission. In such case 
 a court of equity will decree a conveyance on 
 pquitable terms, in conformity with the con- 
 tracts of the parties, or else require compen- 
 sation to be made upon equitable principles ; 
 1 Stockt. 471; Red. Railw. 106; 13 Vt. 
 150; 10 Conn. 375. 
 
 For the law in regard to the revocation of 
 wills, see Wills. 
 
 HEVOCATUR (Lat. recalled). A term 
 used to denote that a judgment is annulled 
 for an error in fact. The judgment is then"' 
 Vol. II.— 38 
 
 said to be recalled, revocatur ; not reversed, 
 which is the word used when a judgment is 
 annulled for an error in law ; Tidd, Pr. 1126. 
 
 REVOLT. The endeavor of the crow of 
 a vessel, or any one or more of them, to over- 
 throw the legitimate authority of her com- 
 mander, with intent to remove him from his 
 command, or against his will to take posses- 
 sion of the vessel by assuming the government 
 and navigation of her, or by transferring 
 their obedience from the lawful commander 
 to some other person. 11 Wheat. 417. 
 
 According to Wolff, revolt and rebellion are 
 nearly synonymous : he says it is the state of cit- 
 izens who unjustly take up arms against the 
 prince or government. Wolff, Droit de la Nat. § 
 1232. See Rebellion. 
 
 By E. S. § 5359, if any one of the crew of an 
 American vessel, on the high seas or other 
 waters, within the admiralty and maritime juris- 
 diction of the U. S„ endeavors to make a revolt, 
 etc., or conspires, etc., so to do, or incites, etc., 
 any other of the crew to disobey lawful orders, 
 or to neglect their duty, or assembles such oth- 
 ers in a mutinous manner, or makes a riot, or 
 unlawfully confines the master, etc., he is pun- 
 ishable by a fine of not over $1000, or imprison- 
 ment for not over five years, or both. By § 
 5360, if any one of the crew, etc., usurps the 
 command of the vessel, or deprives him of au- 
 thority, or resists his authority, or transfers the 
 same to one not entitled thereto, he is puhish- 
 able by a fine of not over $2000, and imprison- 
 ment for not over ten years. Foreign seamen on 
 American vessels are punishable under this sec- 
 tion ; 1 N. Y. Leg. Obs. 88. If, before a voyage 
 is begun, the seamen for good reason believe 
 that the vessel is unseaworthy, they may resist 
 an attempt to compel them to go to sea in her, 
 without being guilty of a revolt; 1 Sprague, 75. 
 
 Revolts on shipboard are to be considered as 
 defined by the last-mentioned act ; 1 W. & M. 
 806. 
 
 A confederacy or combination must be 
 shown; 2 Sumn. 582; 1 W. & M. 305; 
 Crabbe, 558. The vessel must be properly 
 registered ; 3 Sumn. 342 ; must be pursuing 
 her regular voyage ; 2 Sumn. 470. The in- 
 dictment must specifically set forth the acts 
 which constitute the crime ; Whart. Prec. § 
 1061, n. And see 1 Mas. 147; 5 id. 402; 
 1 Sumn. 448 ; 4 Wash. C. C. 402, 528 ; 2 
 Curt. C. C. 225 ; 1 Pet. C. C. 213. 
 
 REWARD. An offer of recompense 
 given by authority of law for the performance 
 of some act for the public good, which, when ' 
 the act has been performed, is to be paid. 
 The recompense actually so paid. 
 
 A reward may be offered by the govern- 
 ment or by a private person. In criminal 
 prosecutions, a person may be a competent 
 witness although he expects on conviction of 
 the prisoner to receive a reward ; 9 B. & C. 
 556 ; 1 Hayw. 3 ; 1 Root, 249 ; 4 Bla. Com. 
 294. See 6 H-umphr. 113. 
 
 The publication of an advertisement of- 
 fering a reward for information respecting- a 
 loss or crime is a general offer to any person 
 who is able to give the information asked ; 
 and the acceptance of it by giving such infor- 
 mation creates a valid contract ; 82 N. Y. 
 
RHODE ISLAND 
 
 594 
 
 EHODE ISLAND 
 
 503 ; 4 B. & Ad. 621 ; the offer of a reward 
 may be revoked at pleasure; 16 InA. 140. 
 See, as to what information will satisfy such a 
 contract, 8 C. B. 254; L. R. 2 Q. B. 301. 
 A promise to pay a reward to a police con- 
 stable is binding because there might be some 
 information which he was not bound, in the 
 discharge of his ordinary duty, to give ; 11 A. 
 & E 856. 
 
 The finder of lost property is not entitled 
 to a reward, if there was no promise of one 
 by the owner ; 1 Oreg. 86. In an action for 
 a reward it must appear that the plaintiff 
 acted on the knowledge that a reward had 
 been offered; 6 Huraphr. 110. If a sheriff 
 arrests a felon on consideration of public 
 policy, he is not entitled to a reward offered ; 
 id. 
 
 RHODE ISLAND. One of the original 
 thirteen states of the United States of Ame- 
 rica ; its full style being, "The State of 
 Rhode Island and Providence Plantations." 
 
 Its territory lies between Massachusetts and 
 Connecticut, In the southwest angle of that por- 
 tion of the territory of the former state which 
 was known as the colony of New Plymouth, and 
 is situated at the head and along both shores of 
 the Narragansett bay, comprising the islands in 
 the same, the principal of which is Rhode Island, 
 placed at the mouth of the bay. The settlement 
 was commenced as early as June, 1636, on the 
 present site of the city of Providence, by five men 
 under Roger Williams. Williams founded his col- 
 ony upon a compact which bound the settlers to 
 obedience to the major part " only in civil 
 things ;" leaving to each perfect freedom in mat- 
 ters of religious concernment, so that he did not, 
 by his religious practices, encroach upon the 
 public order and peace. A portion of the Massa- 
 chusetts colonists, who were of the Antinomian 
 party, after their defeat in that colony settled on 
 the island of Aquetnet, now Rhode Island, where 
 they associated themselves as a colony on March 
 7, 1638. These settlements, together with one 
 " at Shawomet, now Warwick, made by another 
 sect of religious outcasts, under Gorton, in 1642- 
 8, remained under separate voluntary govern- 
 ments until 1647, when they were united under 
 one government, styled ' The Incorporation of 
 Providence Plantations in the Narragansett Bay 
 in New England,' by virtue of a charter granted 
 In 1643." 
 
 This colony remained under this charter, 
 which, upon some divisions, was confirmed by 
 Cromwell in 1655, until after the restoration, 
 when a new charter was procured from Charles 
 II., in the fifteenth year of his reign, under which 
 a new colonial government was formed on the 
 24th of November, 1663, which continued, with 
 the short interruption of the colonial adminis- 
 tration of Sir Edmund Andros, down to the 
 period of the American revolution. Under both 
 the parliamentary charter which was procured 
 by Williams, the founder of the settlement at 
 Providence, and the royal charter which was 
 procured by John Clark, one of the founders of 
 the settlement at Aquetnet, religious liberty was 
 carefully protected. By the parliamentary char- 
 ter, the colony was authorized to make only 
 " such civil laws and constitution as they or the 
 greatest part of them shall by free consent agree 
 unto ;" and the royal charter, reciting " that it 
 is much on the hearts " of the colonists, " if 
 they may be permitted, to hold forth a lively ex- 
 
 periment, that a most flourishing civil state may 
 stand and best be maintained, aud that amoncBt 
 our English subjects with full liberty in idigiouB 
 concernments," expressly ordained "that no 
 person within said colony, at any time hereafter 
 shall be any wise molested, punished, disquieted' 
 or called in question for any differeuces in opiul 
 ion in matters of religion, and do not actually 
 disturb the civil peace of our said colony ; but 
 that all and every person or persons rnay,'fiom 
 time to time and at all times hereafter, freely 
 and fully have and enjoy his and their own judg- 
 ments and consciences in matters of religious 
 concernments, throughout the tract of land 
 hereafter mentioned, they behaving themselveB 
 peaceably and quietly, and not usiug the liberty 
 to licentiousness and profaneness, nor to the civil 
 injury or outward disturbance of others ; any 
 law, statute or clause therein contained or to be 
 contained, usage or custom of this realm, to the 
 contrary hereof, in any wise notwithstanding." 
 In the general assembly of the colony, on the 
 first Wednesday of May, 1776, in anticipation of 
 the declaration of independence, an act was 
 passed which absolved the colonists from their 
 allegiance to the king of Great Britain, and 
 which ordered that in future all writs and pro- 
 cesses should issue in the charter name of "The 
 Governor and Company of the English Colony 
 of Rhode Island and Providence Plantations," 
 instead of the name of the king. The old colo- 
 nial charter, together with a bill of rights 
 adopted by the general assembly, remained the 
 sole constitution of state government until the 
 first Tuesday in May, 1843, when a state eonsti- 
 tution framed by a convention assembled in 
 November, 1843, and adopted by the people of 
 the state, went into operation. 
 
 The third article of this constitution distri- 
 butes the powers of government into the legisla- 
 tive, executive, and judicial. 
 
 The fourth article regulates the legislative 
 power. It provides that the constitution shall 
 be the supreme law, and the general assembly 
 shall pass laws to carry it into effect ; that there 
 shall be a senate and house of representatives, 
 constituting together the general assembly, and 
 that a concurrence of these two houses shall be 
 necessary to the enactment of laws, that there 
 shall be one session to be holden at Newport, 
 commencing the last Tuesday in May, and an ad- 
 journment from the same held annually at Provi- 
 dence, Amend. 1854, art. iii. ; that members shall 
 not take fees or be of counsel in any case pend- 
 ing before either house, under penalty of expul- 
 sion ; against arrest of the person and attach- 
 ment of the property of the members during the 
 session and two days before and after ; for free- 
 dom of debate ; that each house shall judge the 
 qualifications of its members, see Amend, art, 
 i., as to evidence required ; what shall be a quo- 
 rum, and for continuing the session without a 
 quorum ; that each house may prescribe rules of 
 proceedings, and punish and expel members; 
 for keeping a journal of its proceedings ; for 
 not adjourning, without consent of the other 
 house, for more than two days at a time ; that 
 the assembly shall exercise all their usual powers, 
 though not granted by this constitution; for 
 regulating the pay of members and all other offi- 
 cers. It also provides for abolishing lotteries ; 
 for restricting the power to create a debt of more 
 than fifty thousand dollars, except in time of 
 war or invasion or insurrection, without the ex- 
 press consent of the people ; that the assent ol 
 two-thirds of the members of each house shall 
 be required to a bill appropriating public money 
 for local or private purposes ; that new vai™- 
 tions of property may be made by order of the 
 
RHODE ISLAND 
 
 595 
 
 RHODE ISLAND 
 
 assembly for purposes of taxation ; that laws 
 may be passed to continue officers in office till 
 their successors are qualified ; that no bill to 
 create a corporation other than for religious, 
 charitable or litei-ary purposes, or for a military 
 or fire company, shall be passed by the assembly 
 to which it is first presented ; for joining to 
 elect senators in congress. 
 
 It is also provided that amendments to the 
 constitution may be proposed to the people by 
 vote of a majority of all the members elected to 
 each house ; that these amendments shall be 
 read, at the annual election of members of the 
 houses, by the clerks of the towns and cities : if 
 the propositions are again approved by a majority 
 of the members of both houses then elected, 
 they are to be submitted to the electors, and if 
 approved by three-fifths of those voting they are 
 adapted. 
 
 The Leqislative Powbb. — The Senate. The 
 sixth article of the constitution provides that the 
 senate shall consist of the lieutenant-governor 
 and one senator from each town or city in the 
 state ; the governor, and in his absence the lieu- 
 tenant-governor, shall preside, and may vote 
 only in case of a tie j that the senate may elect 
 a presiding officer in case of the death or disabil- 
 ity of the governor and lieutenant-governor; 
 that the secretary of state shall be secretary of 
 the senate, unless otherwise provided by law, 
 and shall preside over the senate in case of death 
 of the presiding officer, till a new one is chosen. 
 
 The Eame of Sepresentatives. The fifth article 
 provides that it shall not exceed seventy-two 
 members, elected on the basis of population, 
 giving each town and city one at least, and one 
 for more than half the ratio, allowing reappor- 
 tionment after each United States or state cen- 
 sus, and forbidding districting any town or city ; 
 that the house shall elect its presiding officer, 
 and the senior members from the town of New- 
 port shall preside in the organization. 
 
 The Exectjtive Power. — The seventh article 
 provides that the chief executive power of the 
 state shall be vested in a governor, who, together 
 with a lieutenant-governor, shall be annually 
 elected by the people ; that the governor shall 
 take care that the laws be faithfully executed ; 
 that he shall be captain-general and 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 ; that he shall have 
 power to grant reprieves after conviction, in all 
 cases except those of impeachment, until the end 
 of the next session of the general assembly ; that 
 he may fill vacancies in office not otherwise pro- 
 vided for by this constitution, or by law, until 
 the same shall be filled by the general assembly 
 or by the people ; that he may adjourn the houses 
 in case of disagreement as to time or place of ad- 
 journment, till the time of the next session, or 
 for a shorter period; that he may convene the 
 assembly at a time or place not provided for by 
 law, in case of necessity ; that he shall sign all 
 commissions, and that the secretary of state 
 shall attest them ; that the lieutenant-governor 
 shall supply the place in case of vacancy or ina- 
 bility of the governor to fill the office ; that the 
 president'of the senate shall act as governor if 
 the governor and lieutenant-governor's offices be 
 vacant ; that the compensation of the governor 
 and lieutenant-governor shall be fixed by law, 
 and not diminished during their term of office ; 
 that the governor by and with the advice and 
 consent of the senate, shall hereafter exclu- 
 sively exercise the pardoning power, except in 
 cases of impeachment, to the same extent as 
 
 such power is now exercised by the general as- 
 sembly, Amend, art. ii.; that the duties and 
 powers of the secretary, attorney-general, and 
 general treasurer shall be the same under this 
 constitution as are now established, or as from 
 time to time may be prescribed by law. 
 
 The Jodioial Powek. — The Supreme Court 
 consists of a chief justice and four associate jus- 
 tices, elected by the two houses of the assembly 
 in grand committee. They are to hold office 
 until their places are declared vacant by a reso- 
 lution passed by a majority of both houses at 
 the annual session for electing officers, unless 
 removed by impeachment. In case of vacancy 
 by death, resignation, removal from the state or 
 from office, refusal or inability to serve, of any 
 judge of the supreme court, the office may be 
 filled by the grand committee, until the next an- 
 nual election ; and the judge then elected holds 
 his office as before provided. In case of im- 
 peachment or temporary absence or inability, 
 the governor may appoint a person to discharge 
 the duties of the office during the vacancy caused 
 thereby. 
 
 This court has original jurisdiction concurrent 
 with courts of common pleas, of all civil actions, 
 as well between the state and its citizens as be- 
 tween citizens, where the damages laid exceed 
 one hundred dollars (except in the county of 
 Providence, where damages laid in the writ must 
 be $300 or upwards to give the supreme court 
 original jurisdiction), and of all criminal pro- 
 ceedings, concurrently with the court of common 
 pleas ; and exclusive jurisdiction over crimes for 
 which the punishment is for life ; see chap. 669, 
 Public Laws, January Sess., 1878 ; has ageneral 
 superintendence of all courts of inferior juris- 
 diction ; has exclusive authority to issue writs 
 of error, certiorari, mandamus, prohibition, quo 
 warranto, to entertain informations in the na- 
 ture of quo warranto ; has exclusive cognizance 
 of all petitions for divorce, separate mainte- 
 nance, alimony, custody of children, and all 
 petitions for relief of insolvents ; and exclusive 
 jurisdiction in equity. It is also the supreme 
 court of probate. Two sessions are held annu- 
 ally in each county in the state. 
 
 Tile Court of Common Pleas is held by«ome 
 one or more of the justices of the supreme 
 court, designated forthat purpose by the justices 
 of that Court. This court has original jurisdic- 
 tion of all civil actions which involve title to real 
 estate or where real estate is attached, if the 
 amount exceed $100, except in case of certain 
 writs. It has jurisdiction, concurrently with the 
 supreme court, of all crimes, and also of actions 
 to recover possession of lands from tenants at 
 will, or sufierance, and the like. It has appel- 
 late jurisdiction in civil and criminal cases from 
 justices of the peace and the magistrates' courts. 
 Two sessions of this court are held annually in 
 each county, except Providence, in which there 
 are four sessions. Special terms of this court 
 are also held, for which no jury is to be sum- 
 moned unless required by notice from one of the 
 parties to the suit. It has concurrent jurisdic- 
 tion with the supreme court. 
 
 Justices of the Peace are elected for one year by 
 the several towns, and also by the general as- 
 sembly in their discretion as to the number in 
 each town. A justice court is established 
 in every town. Such court is held by a trial jus- 
 tice elected by the town council from the quali- 
 fied justices of the peace of such town. But the 
 trial justices of Providence, Newport, Woon- 
 socket, and Pawtucket are elected from the 
 qualified justices of the peace of said towns by 
 the general assembly. The justice courts have 
 
RHODIAN LAWS 
 
 S96 
 
 RIGHT 
 
 original and excluBive jurisdiction of all civil 
 actions for less than $100, excepting actions 
 relating to real estate. The justice courts 
 have also jurisdiction or cognizance of all crimes 
 committed within the town in which they are 
 severally established. And this jurisdiction is 
 exclusive where fine does not exceed $20 or im- 
 prisonment three months. 
 
 Court) of Probate are held by the town councils 
 of the various towns, except in Providence,where 
 the municipal oourts acts as a probate court. 
 This court has jurisdiction of the settlement of 
 estates of deceased persons, supervision of guar- 
 dians, probate of wills, and other similar mat- 
 ters, with a right of appeal to the supreme 
 court. 
 
 RHODIAN IiAVTS. A code of maritime 
 laws adopted by the people of Rhodes, who 
 had by their commerce and naval victories ob- 
 tained the sovereignty of the sea, about nine 
 hundred years before the Christian era. There 
 is reason to suppose this code has not been 
 transmitted to posterity, at least not in a per- 
 fect state. A collection of marine constitu- 
 tions, under the denomination of Rhodian 
 Laws, may be seen in Vinnins ; but they bear 
 evident marks of a spurious origin. See 
 Marsh. Ins. 15; Code. . 
 
 RIBAIJD. A rogue ; a vagrant. 
 
 RISER. A schedule or small piece of 
 paper or parchment added to some part of the 
 record ; as, when on the reading of a bill in 
 the legislature a new clause is added, this is 
 tacked to the bill on a separate piece of paper, 
 and is called a rider. 
 
 RIDING. Id Zinglish La'W; An ascer- 
 tained district ; part of a county. This term 
 has the same meaning in Yorkshire that divi- 
 sion has in Lincolnshire. 4 Term, 459. 
 
 RIDING- ARMED. The offence of rid- 
 ing or going armed with dangerous or unusual 
 weapons. It is a misdemeanor; 4 Steph. 
 Con>. 357. 
 
 RIDING CLERK. One of the Six 
 
 Clerks in chancery, who, in his turn, for one 
 year kept the controlment books of all grants 
 that passed the Great Seal. Whart. Die. 
 
 RIEN. A French word which signifies 
 nothing. It has generally this meaning : as, 
 rien en arrere ; rien passe per le fait, noth- 
 ing passes by the deed; rien per descent, 
 nothing by descent: it sometimes signifies 
 not, as, rien culpable, not guilty. Doctrina 
 Plac. 435. 
 
 RIEN EN ARRERE (L. Fr. nothing in 
 arrear). In Pleading. A plea which alleges 
 that there is nothing remaining due und un- 
 paid of the plaintifi's demand. It is a good 
 plea, and raises the general issue in an action 
 for rent. 2 Wm. Saund. 297, n. 1 ; 2 Chitty, 
 PL 486; 2 Ld. Raym. 1503. 
 
 RIEN PASSE PER LE FAIT (L. Fr. 
 
 nothing passed by the deed). In Pleading. 
 A plea which avoids the effect of a deed 
 where its execution cannot be denied, by as- 
 serting that nothing passed thereby : for ex- 
 Ample, an allegation that the acknowledgment 
 
 was before a court which had not jutisdic 
 tion. 
 
 RIGHT. A well-founded claim. 
 
 If people believe that humanity itself eetab- 
 lishes or proves certain claims, either upon fel- 
 low-beings, or upon society or government, they 
 call these claims human rights ; if they believe 
 that these claims inhere in the very nature o( 
 man himself, they call them Inherent, inalien- 
 able rights ; if people believe that there inhere! 
 in monarche a claim to rule over their enbjecti 
 by divine appointment, they call the claim di- 
 vine right, jus divimim ; if the claim le founded 
 or given by law, it is a legal right. The ideas of 
 claim and that the claim must be well founded 
 always constitute the idea of right. Eights can 
 only inhere in and exist between moral beings : 
 and no moral beings can coexist without rights, 
 consequently without obligations. Eight and 
 obligation are correlative ideas. The idea of a 
 well-fmmded claim becomes in law a claim 
 founded in or established by the law : to that we 
 may say a right in law is an acknowledged claim. 
 
 Men are by their inherent nature moral and 
 social beings ; they have, therefore, mutual 
 claims upon one another. Every well-grounded 
 claim on others is called a right, and, since the 
 social character of man gives the element of mu- 
 tuality to each claim, every right conveys along 
 with it the idea of obligation. Eight and obli- 
 gation are correlative. The consciousness of all 
 constitutes the first foundation of the right or 
 makes the claim well grounded. Its incipiency 
 arises instinctively out of the nature of man, 
 Man feels that he has a right of ownership over 
 that which he has produced out of appropriated 
 matter, for instance, the bow he has made of ap- 
 propriated wood ; he feels that he has a right to 
 exact obedience from his children, long before 
 laws formally acknowledge or protct these 
 rights ; but he feels, too, that if he claims the 
 bow which he made as his own, he ought to ac- 
 knowledge (as correlative obligation) the same 
 right in another man to the bow which he may 
 have made ; or if he, as father, has a right to the 
 obedience of his children, they have a corre- 
 sponding claim on him for protection as lo"??' 
 they are incapable to protect themselves. The 
 idea of rights is coexistent with that of authority 
 (or government) ; both are inherent in man ; but 
 if we understand by government a coherent sys- 
 tem of laws by which a state is ruled, and if we 
 understand by state a sovereign society, with 
 distinct authorities to make and execute laws, 
 then -rights precede government, or the estab- 
 lishment of states, which is expressed in the an- 
 cient law maxim : JVe ex regida jus mmatur, led 
 ex jure quod est, regula fiat. See Goversment. 
 We cannot refrain from referring the reader to 
 the noble passage of Sophocles, CEdyp. Tyr. 876 
 et seq., and to the words of Cicero, in his oration 
 for Milo : Est enlm hcee, judicet, non uripta >ed 
 nata lex ; quam non didieimus, atcepimuf, Itgi- 
 mus ! iierum ex natura ipsa arripuimus, hausinm, 
 eajjressimtM ; ad quam non docti sed facti ; not 
 iftstituti sed imbuti mmus. 
 
 As rights precede government, so we find tlat 
 now rights are acknowledged above govern- 
 ments and their states, in the case of interna- 
 tional law. International law is founded on 
 rights, that is, well-grounded claims which civ- 
 ilized states, as individuals, make upon one an- 
 other. As governments come to be more ana 
 more clearly established, rights are more clearly 
 acknowledged and protected by the laws, ana 
 right comes to mean a claim acknowledged ana 
 protected by the law. A legal right, a c™*?'™' 
 tlonal right, means a right protected by the law, 
 
EIGHT 
 
 597 
 
 EIGHT 
 
 by the constitution; but government does not 
 create the idea of ri^ht or original rights; it ac- 
 knowledges them ; just as government does not 
 create property or values and money, it acknowl- 
 edges and regulates them. If it were other- 
 wise, the question would present itself, whence 
 does government come ! whence does it derive 
 its own right to create rights ? By compact ? 
 But whence did the contracting parties derive 
 their right to create a government that is to make 
 rights ? We would be consistently led to sidopt 
 the idea of a government by jus divinum, — that 
 is, a government deriving its authority to intro- 
 duce and establish rights (bestowed on it in par- 
 ticular) from a source wholly separate from hu- 
 man society and the ethical character of man, In 
 the same manner in which we acknowledge reve- 
 lation to come from a source not human. 
 
 Rights are claims of moral beings upon one 
 another : when we speak of rights to certain 
 things, they are, strictly speaking, claims of 
 persons on persons, — in the case of property, 
 for instance, the claim of excluding others from 
 possessing it. The idea of right indicates an 
 ethical relation, and all moral relations may be 
 infringed ; claims may be made and established 
 by law which are wrong in themselves and desti- 
 tute of a corollary obligation ; they are like 
 every other wrong done by society or govern- 
 ment ; they prove nothing concerning the origin 
 or essential character of rights. On the other 
 hand, claims are gradually more clearly ac- 
 knowledged, and new ones, which were not per- 
 ceived in early periods, are for the first time 
 perceived, and surrounded with legislative pro- 
 tection, as civilization advances. Thus, original 
 rights, or the rights of man, are not meant to be 
 claims which man has always perceived or in- 
 sisted upon or protected, but those claims which, 
 according to the person who uses the term, logi- 
 cally flow from the necessity of the physical and 
 moral existence of man ; for man is born to be 
 a man, — that is, to lead a human existence. 
 They have been called inalienable rights ; but 
 they have been alienated, and many of them are 
 not perceived for long periods. Lleber, in his 
 Political Ethics, calls them primordial rights : 
 he means rights directly flowing from the nature 
 of man, developed by civilization, and always 
 showing themselves clearer and clearer as society 
 advances. He enumerates, as such especially, 
 the following : the right of protection ; the 
 right of personal freedom, — that is, the claim of 
 unrestricted action except so far as the same 
 claim of others necessitates restriction : these 
 two rights involve the right to have justice done 
 by the public administration of justice, the right 
 of production and exchange (the right of pro- 
 perty) , the right of free locomotion and emigra- 
 tion, the right of communion in speech, letter, 
 print, the right of worship, the right of in- 
 fluencing or sharing in the legislation. All 
 political civilization steadily tends to bring out 
 these rights clearer and clearer, while in the 
 course of this civilization, from its incipiency, 
 with its relapses, they appear more or less de- 
 veloped in diflTerent periods and frequently wholly 
 ia abeyance : nevertheless, they have their origin 
 hi the personality of man as a social being. 
 
 Publicists and jurists have made the foUow- 
 ingfurther distinction of rights: — 
 
 Bights are perfect and imperfect. When 
 the things which we have a right to possess, 
 or the actions we have a right to do, are or 
 may be fixed and determinate, the right is a 
 perfect one ; but when the thing or the actions 
 are vague and indeterminate, the right is an 
 
 imperfect one. If a man demand his pro- 
 perty which is withheld from him, the right 
 that supports his demand is a perfect one, 
 because the thing demanded is or may be 
 fixed and determinate ; but if a poor man ask 
 relief from those from whom he has reason 
 to expect it, the right which supports his peti- 
 tion is an imperfect one, because the relief 
 which he expects is a vague, indeterminate 
 thing. Butherforth, Inst. c. 2, § 4 ; Grotius, 
 lib. 1, c. 1, § 4. 
 
 Rights are also absolute and qualified. A 
 man has an absolute right to recover property 
 which belongs to him ; an E^ent has a quali- 
 fied right to recover such property when it 
 had been intrusted to his care and which 
 has been unlawfully taken out of his posses- 
 sion. 
 
 . Eights might with propriety be also divided 
 into natural and civil rights; but as all the 
 rights which man has received from nature 
 have been modified and acquired anew from 
 the civil law, it is more proper, when con- 
 sidering their object, to divide them into 
 political and civil rights. 
 
 Political rights consist in the power to 
 participate, directly or indirectly, in the estab- 
 lishment or management of government. 
 These political rights are fixed by the con- 
 stitution. Every citizen has the right of 
 voting for public officers, and of being elected : 
 these are the political rights which the hum- 
 blest citizen possesses. 
 
 Civil rights are those which have no rela- 
 tion to the establishment, support, or manage- 
 ment of the government. These consist in 
 the power of acquiring and enjoying property, 
 of exercising the paternal and marital powers, 
 and the like. It will be observed that every 
 one, unless deprived of them by a sentence 
 of civil death, is in the enjoyment of his 
 civil rights, — which is not the case with poli- 
 tical rights ; for an alien, for example, has 
 no political, although in the full enjoyment 
 of his civil, rights. 
 
 These latter rights are divided into abso- 
 lute and relative. The absolute rights of 
 mankind may be reduced to three principal 
 or primary articles : the right of personal 
 security, which consists in a person's legal 
 and uninterrupted enjoyment of his life, his 
 limbs, his body, his health, and his reputa- 
 tion ; the right of personal liberty, which 
 consists in the power of locomotion, of chang- 
 ing situation or removing one's person to 
 whatsoever place one's inclination may direct, 
 without any restrainst unless by due course of 
 law ; the right of property, which consists in 
 the free use, enjoyment, and disposal of all 
 his acquisitions, without any control or dimi- 
 nution save only by the laws of the land. 1 
 Bla. Com. 124-139. 
 
 The relative rights are public or private: 
 the first are those which subsist between the 
 people and the government ; as, the right of 
 protection on the part of the people, and the 
 right of allegiance which is due by the people 
 to the government ; the second are the re- 
 
RIGHT, PETITION OF 
 
 598 
 
 RINGS-GIVING 
 
 ciprocal rights of husband and wife, parent 
 and child, guardian and ward, and master 
 and servant. 
 
 Rights are also divided into legal and equi- 
 table. The former are those where the party 
 has the legal title to a thing; and in that 
 case his remedy for an infringement of it is 
 by an action in a court of law. Although 
 the person holding the legal title may have 
 no actual interest, but hold only as trustee, 
 the suit must be in his name, and not, in 
 general, in that of the cestui que trust; 8 
 Term, 332; 1 Saund. 158, n. 1; 2 Bing. 20. 
 The latter, or equitable rights, are those 
 which may be enforced in a court of equity 
 by the cestui que trust. 
 
 RIGHT, PETITION OP. See Peti- 
 TiON OF Right. 
 
 BIGHT, -WRIT OF. See Writ of 
 Right. 
 
 RIGHT OP ACTION. The right to 
 bring suit in a case. Also sometimes used' in 
 the same sense as right in action, which is 
 identical with chose in action, q. v. 
 
 RIGHT OF DISCUSSION. In Scotch 
 Law. The right which the cautioner (surety) 
 has to insist that the creditor shall do his best 
 to compel the performance of the contract by 
 the principal debtor, before he shall be called 
 upon. 1 Bell, Com. 347. 
 
 RIGHT OP DIVISION. In Scotch 
 La'W. The right which each of several 
 cautioners (sureties) has to refuse to answer 
 for more than his own share of the debt. To 
 entitle the cautioner to this right, the other 
 cautioners must be solvent, and there must be 
 no words in the bond to exclude it. 1 Bell, 
 Com. 347. 
 
 RIGHT OF HABITATION. In 
 
 Louisiana. The right of dwelling gratui- 
 tously in a house the property of another. 
 La. Civ. Code, art^ 623 ; 3 TouUier, c. 2, p. 
 325 ; 14 id. n. 279, p. 330 ; Pothier, n. 22-25. 
 
 RIGHT OF POSSESSION. The 
 right to possession which may reside in one 
 man, while another has the actual possession, 
 being the right to enter and turn out such ac- 
 tual occupant : e.g. the right of a disseisee. 
 An apparent right of possession is one which 
 may be defeated by a better ; an actual right 
 of possession, one which will stand the test 
 against all opponents. 2 Bla. Com. 196*. 
 
 RIGHT OF PROPERTY. The ab- 
 stract right {merum jMs)which remains after 
 the actual possession has been so long gone 
 that the right of possession is also lost, and 
 the law will only allow recovery of the land 
 by a writ of right. It, together with posses- 
 sion and right of possession, makes a perfect 
 title ; e.g. a disseisor has naked possession, 
 the disseisee has right of possession and right 
 of property. But after twenty years without 
 entry the right of possession is transferred 
 from the disseisee to the disseisor ; and if he 
 now buys up the rightof property which alone 
 remains in the disseisee, the disseisor will 
 
 unite all three rights in himself, and thereby 
 acquire a perfect title. 2 Bla. Com. 397*. 
 
 RIGHT OP RELIEF. In Scotch 
 La'W. The right which the cautioner (surety) 
 has against the principal debtor when he has 
 been forced to pay his debt. 1 Bell, Com 
 347. 
 
 RIGHT OF SEARCH. See Seakch 
 Bight of ; 1 Kent, 163, n.; 1 Phill. Int. Law' 
 325. 
 
 RIGHT OP WAY. See Easement; 
 Way. ' 
 
 RIGHT TO BEGIN. In Practice. The 
 
 party who asserts the affirmative of an issue 
 has the right to begin and reply, as on him 
 is the burden of proof. The substantial affir- 
 mative, not the verbal, gives the right; 1 
 Greenl. Ev. § 74 ; 18 B. Monr. 136 ; 6 Ohio 
 St. 307 ; 2 Gray, 260. See Opekihg & 
 Closing ; 16 West. Jur. 18 ; 8 Daly, 61. 
 
 RIGHT PATENT. The name of an an- 
 cient writ, which Pitzherbert says, "ought to 
 be brought of lands and tenements, and not 
 of an advowson, or of common, and lieth only 
 of an estate of fee-simple, and not for him ivho 
 has a lesser estate, as tenant in tail, tenant 
 in frank-marriage, or tenant for life." Fitzh. 
 N. B. 1. 
 
 RING-DROPPING. In Criminal Law. 
 A phrase applied in England to a trick fre- 
 quently practised in committing larcenies. It 
 is difficult to define it ; it will be sufficiently 
 exemplified by the following cases. The 
 prisoner, with some accomplices, being in 
 company with the prosecutor, pretended to 
 find a valuable ring wrapped up in a paper, 
 appearing to be a jeweQer's receipt for " a 
 rich brilliant diamond ring." They offered 
 to leave the ring with the prosecutor if he 
 would deposit some money and his watch as a 
 security. The prosecutor, having accordingly 
 laid down his watch and money on a table, 
 was beckoned out of the room by one of the 
 confederates, while the others took away his 
 watch and money. This was held to amount 
 to a larceny; 1 Leach, 278. In another 
 case, under similar circumstances, the prisoner 
 procured from the prosecutor twenty guineas, 
 promising to return them the next morning, 
 and leaving the false jewel with him. This 
 was also held to be larceny ; 1 Leach, 314 ; 
 2 East, PI. Cr. 679. In these cases the prose- 
 cutor had no intention of parting with the 
 property in the money or goods stolen. It 
 was taken, in the first case, while the trans- 
 action was proceeding, without his knowledge; 
 and in the last, under the promise that it 
 should be returned. See 2 Leach, 640. 
 
 RINGING THE CHANGE. In Crimi- 
 nal Law. A trick practised by a criminal, 
 by which, on receiving a good piece of money 
 in payment of an article, he pretends it is not 
 good, and, changing it, returns to the buyer 
 a spurious coin. See 2 Leach, 786. 
 
 RINGS-GIVING. The giving of goUen 
 rings by a newly-created sergeant-at-laif to 
 
RIOT 
 
 599 
 
 RIPAKIAN PROPRIETORS 
 
 every person of rank at court, from the 
 princes of the blood, through the lords in 
 parliament and the justices and barons of the 
 courts, down to the meanest clerk of com- 
 mon pleas, to each one according to his dig- 
 nity. The expense was not less than forty 
 pounds English money. Eortesque, 1 90 ; 10 
 Co., Introd. 23. 
 
 RIOT. In Criminal Jinvr. A tumult- 
 uous disturbance of the peace by three 
 persons or more, assembling together of their 
 own authority with an intent mutually to 
 assist each other against any who shall op- 
 pose them, in the execution of some enter- 
 prise of a private nature, and afterwards actu- 
 ally executing the same in a violent and tur- 
 bulent manner, to the terror of the people, 
 whether the act intended were of itself law- 
 ful or unlawful. Hawk. PL Cr. c. 65, § 1. 
 See 3 Blackf. 209 ; 3 Rich. 337 ; 5 Penn. 
 83; 37 Leg. Int. Pa. 426. 
 
 In this case there must be proved — first, 
 an unlawful assembling ; I5N. H. 169; for 
 if a number of persons lawfully met together, 
 as, for example, at a fire, or in a theatre or a 
 church, should suddenly quarrel and fight, 
 the offence is an afiray, and not a riot, be- 
 cause there was no unlawful assembling; 
 but if three or more being so assembled, 
 en a dispute occurring, form into parties 
 with promises of mutual assistance, which 
 promises may be express, or implied from 
 the circumstances, then the oflence will no 
 longer be an affray, but a riot ; the unlawful 
 combination will amount to an assembling 
 within the meaning of the law. In this man- 
 ner any lawful assembly may be converted 
 into a riot; 18 Me. 346 ; 1 Camp. 328 ; 24 
 Hun, 562. Any one who joins the rioters 
 after they have actually commenced is equally 
 guilty as if he had joined them while assem- 
 bling. 
 
 Secondly, proof must be made of actual 
 violence and force on the part of the rioters, 
 or of such circumstances as have an apparent 
 tendency to force and violence, and calculated 
 to strike terror into the public mind ; 2 Camp. 
 369. The definition requires that the offenders 
 should assemble of their own authority, in 
 order to create a riot : if, therefore, the par- 
 ties act under the authority of the law, they 
 may use any necessary force to enforce their 
 mandate, without committing this offence. 
 See 1 Hill, So. 0. 362 ; 72 N, C. 25. 
 
 lUrdly, evidence must be given that the 
 defendants acted in the riot and were partici- 
 paijts in the disturbance ; 1 Morr. Tenn. 142. 
 It is sufficient if they be present encouraging 
 or giving countenance, support, or acquiescence 
 to the act; 9 Miss. 270. See 1 Russ. Cr. 
 *382; Co. 3d Inst. 176 ; 4 Bla. Com. 146; 
 Comyns, Dig. ; Ros. Cr. Ev. Women and 
 infants above, but not those under, the age of 
 discretion are punishable as rioters; 1 Russ. 
 Cr. *387. 
 
 In a case growing out of the riots in Pitts- 
 burgh in 1877, under a statute making a county 
 liable for the property " situated" therein, when 
 
 destroyed by a mob, the liability was held to at- 
 tach to property owned by a non-resident of the 
 state, in transit in possession of a common car- 
 rier ; 90 Penn. 397 ; s. o. 35 Am. Eep. 670. 
 
 RIOT ACT. The stat. 1 Geo. I. st. 2, 
 c. 5. It forbade the unlawful assembling of 
 twelve persons or more to the disturbance of 
 the peace. If they continue together for one 
 hour after the sheriff, mayor, etc. has com- 
 manded them to disperse, such contempt 
 shall be felony. Stat. 24 & 25 Vict. c. 97, s. 
 11, requires, that, in order to constitute 
 felony, the riotous act must consist in demol- 
 ishing, or beginning to demolish, some build- 
 ing ; Moz. & W. ; Cox & S. Cr. Law, 104. 
 
 RIOTOUSLY. In Pleading. A tech- 
 nical word, properly used in an indictment 
 for a riot, which of itself implies violence. 
 
 2 Sess. Cas. So. 13 ; 2 Stra. 834 ; 2 Chitty, 
 Cr. Law, 489. 
 
 RIFA (Lat.). The banks of a river, or 
 the place beyond which the waters do not in 
 their natural course overflow. 
 
 An extraordinary overflow does not change 
 the banks of the river. Pothier, Pand. lib. 
 50. See Banks ; Riter. 
 
 RIPARIAN PROPRIETORS. Those 
 who own the lands bounding upon a water- 
 course. 4 Mass. 397. 
 
 Each riparian proprietor owns that portion 
 of the bed of the river (not navigable) which 
 is adjoining his land usque ad filum aquce; or, 
 in other words, to the thread or central line 
 of the stream ; Hargr. Tracts, 5 ; Holt, 499 ; 
 
 3 Dane, Abr. 4 ; 7 Mass. 496 ; 5 Wend. 423 ; 
 2 Conn. 482; 11 Ohio St. 138; Ang. Wat.- 
 Courses, 3 ; 28 Am. Law Reg. 147, 337. 
 See RivEK ; Water-Course ; Tide- 
 Water ; Wharf ; Alluvion ; Avulsion ; 
 Fishery ; Reliction ; Lake. 
 
 As to the rights of riparian owners over the 
 bed of navigable waters Ijetween high and low 
 water-marli, the decisions are somewhat con- 
 flicting, although the general rule is that the ri- 
 parian owner holds the right of access to the 
 water, subject to the right of the state to im- 
 improve navigation ; Wood, Nuisances, 592 et 
 seq. ; 81 Penn. 80 ; 7 W. N. C. Pa. 332. That 
 the riparian owner has a right of action where 
 his access to the water is cut off by a structure 
 erected between high and low water marlc, by a 
 corporation acting under its charter, see L. E. 
 5 H. L. 418 ; 10 Wall. 497 ; 25 Wend. 468 ; 43 
 Wise. 314 ; s. o. 24 Am. Eep. 394, n.; contra, 32 
 Iowa, 106; s.o. 7 Am. Eep. 176; 8 Cow. 146; 
 34 N. J. 533 ; s. c. 3 Am. Eep. 269. Where, by 
 the action of the sea, the sea front was cut off be- 
 tween certain points, and a beach formed outside 
 the mainland, divideifrom it by a navigable 
 bay, the title to the dctv formation was held to 
 be in the owners of the part cut off; 61 How. 
 Pr. 197. See 95 111. 84. In the leading cases 
 of Gould V. Hudson Elver E. E. Co., 6 N. T. 
 533, it was held, Edmonds, J., dissenting, that 
 '* whatever rights the owner of the land has in 
 the river, or in its shore below high-water mark, 
 are public rights, which are under the control of 
 the legislative power, and any loss sustained 
 through the act of the legislature affecting them, 
 is damnum dbeque injuria." One riparian owner 
 cannot build out into the stream, so as to injure 
 the land of another riparian owner, even when 
 
KIPUARIAN LAW 
 
 600 
 
 RIVER 
 
 Armed with a license granted UDder act of par- f 
 liament ; L. R. 1 App. Cas. 668. The owner of 
 lapds Bituated on the sea cannot maintain 
 ejectment for that portion of a wharf constructed 
 on his land, which extends below low-water 
 mark ; 53 Cal. 385. The owner of both sides of 
 a stream above tide-water has a right to the ice 
 formed between his boundaries ; 14 Chic. Leg. 
 News, 83. 
 
 RIFUARIAN LA"W. A code of laws 
 of the Franks, who occupied the country 
 upon the Rhine, the Meuse, and the Scheldt, 
 who were collectively known by the name 
 Ripuai-ians, and their laws as Ripuarian 
 law. 
 
 RISKS AND PERILS. In Insurance. 
 Those causes against loss from which the in- 
 surer is to be protected in virtue of the con- 
 tract for insurance. 
 
 The risk or peril in a life policy is death ; 
 under a fire policy, damage by fire ; and 
 under a marine policy, by perils of the seas, 
 usually including fire ; and under a policy 
 upon subjects at risk in lake, river, or canal 
 navigation, by perils of the same. See Ik- 
 
 SURABLB InTEKEST ; INSURANCE; PoLICY J 
 
 Warranty. 
 
 Under a marine insurance the risks are 
 from a certain place to a certain other, or 
 from one date to another. The perils usually 
 insured against as "perils of the seas" are 
 ^fire, lightning, winds, waves, rocks, shoals, 
 and collisions, and also the perils of hostile 
 capture, piracy, theft, arrest, barratry, and 
 jettisons. 1 Phill. Ins. § 1099. But a dis- 
 tinction is made between the extraordinary 
 action of perils of the seas, for which under- 
 writers are liable, and wear and tear and de- 
 terioration by decay, for which they are not 
 liable; 1 Phill. Ins. § 1105. 
 
 Perils of lakes, rivers, etc. are analogous 
 to those of the seas ; 1 Phill. Ins. § 1099, n. 
 See, as to sea risks, Crabbe, 405 ; 32 Penn. 
 351 ; 2 Paine, 82 ; 16 B. Monr. 467 ; 4 Du. 
 N. Y. 141 ; 6 id. 191, 282 ; 13 Miss. 57 ; 11 
 Ind. 171 ; 3 Dutch. 645 ; 13 Ala. 167 ; 6 
 Gray, 192 ; 35 N. H. 328. 
 
 Underwriters are not liable for loss occa- 
 sioned by the gross misconduct of the assured 
 or imputable to him ; but if a vessel is sea- 
 worthy, with suitable ofiicers and crew, un- 
 derwriters are liable for loss- though occa- 
 sioned through the mistakes or want of assi- 
 duity and vigilance of the officers or men ; 1 
 Phill. Ins. § 1049. Underwriters are not 
 answerable for loss directly attributable to 
 the qualifications of the insured subject, inde- 
 pendently of the specked risks ; 1 Phillips, 
 Ins. c. xiii. sect. v. ; orTor loss distinctly occa- 
 sioned by the fraudulent or gross negligence 
 of the assured. 
 
 Insurance against illegal risks — such as 
 trading with an enemy, the slave-trade, pi- 
 ratical cruisers, and illegal kinds of business 
 —is void ; 1 Phill. Ins. §§ 210, 691. Policies 
 usually contain express exceptions of some 
 risks besides those impliedly excepted. These 
 may be — in maritime insurance, contraband 
 and illicit, interloping trade, violation of 
 
 blockade, mobs and civil commotions; injJre 
 policies, loss on jewelry, paintings, sculpture 
 by hazardous trades, etc. ; in life policiei 
 loss by suicide, risk in certain climates or localil 
 ties and in certain hazardous employments 
 without express permission ; 1 Phill. Ins. 8S 
 55, 63, 64. See Loss; Total Loss- 
 Average. ' 
 
 RIVAGB. In French law, the shore, as 
 of the sea. In English law, a toll anciently 
 paid to the Crown for the passage of boate or 
 vessels on certain rivers. Cowel. 
 
 RIVER. A natural stream of water flow- 
 ing betwixt banks or walls in a bed of con- 
 siderable depth and width, being so called 
 whether its current sets always one way or 
 flows and reflows with the tide. Woolrvcli, 
 Wat. 40 ; 16 N. H. 467. 
 
 Rivers are either public or private. Public 
 rivers are divided into navigable and not navi- 
 gable, ^-the distinction being that the former 
 flow and reflow with the tide, while the latter 
 do not. Both are navigable in the popular 
 sense of the term ; Ang. Tide- Wat. 74 ; 7 
 Pet. 324; 5 Pick. 199 ; 26 Wend. 404; 4B. 
 & C. 602. 
 
 At common law, the bed or soil of all riven 
 subject to the ebb and flow of the tide, to the 
 extent of such ebb and flow, belongs to the 
 crown ; and the bed or soil of all rivers 
 above the ebb and flow of the tide, or in 
 which there is no tidal eflect, belongs to the 
 riparian proprietors, each owning to the cen. 
 tre or thread, — ad Jilum aqua, which see,— 
 where the opposite banks belong to different 
 persons ; Ang. Tide- Wat. 20 ; Daveis, 149 ; 5 
 6. & Aid. 268. In this country the common 
 law has been recognized as the law of many 
 of the states, — the state succeeding to the 
 right of the crown ; 4 Pick. 268 ; 26 Wend. 
 404 ; 31 Me. 9; 1 Halst. 1 ; 2 Conn. 481; 2 
 Swan, 9 ; 16 Ohio, 540; 4 Wise. 486; but in 
 Pennsylvania,North Carolina, South Carolina, 
 Iowa, Mississippi, and Alabama, it has been de- 
 termined that the common law does not pre- 
 vail, and that the ownership of the bed or soil 
 of all rivers navigable for any useful purpose 
 of trade or agriculture, whether tidal or fresh- 
 water, is in the state ; 2 Binn. 475 ; 14 S. & 
 R. 71 ; 3 Ired. 277 ; 1 M'Cord, 580 ; 3 Iowa, 
 1 ; 4 id. 199 ; 29 Miss. 21 ; 11 Ala. 486. At 
 common law, the ownership of the crown ex- 
 tends to high- water mark ; Ang. Tide- Wat. 
 69 ; Woolr. Wat. 433-450; 3 B. & Aid. 
 967 ; 5 id. 268 ; and in several states of this 
 country the common law has been followed ; 
 12 Barb. 616 ; 8 Zabr. 624 ; 7 Cush. 63; 7 
 Pet. 324 ; 3 How. 221 ; 25 Conn. 846 ; but 
 in others it has been modified by extending 
 the ownership of the riparian proprietor, sub- 
 ject to the servitudes of navigation and fishery, 
 to low-water mark ; 28 Penn. 206 ; 1 Whart. 
 124 ; 4 Call. 441 ; 14 B. Monr. 367 ; U Obio, 
 138 ; unless these decisions may be explained 
 as applying to fresh-water rivers ; 2 Smith, 
 Lead. Cas. 224. 
 
 In England, many rivers originally private 
 
RIXA 
 
 601 
 
 ROLL 
 
 have become public, as regards the right of 
 navigation, either by immemorial use or by 
 acts of parliament ; Woolr. Wat. 40. In 
 this country, all rivers, whether tidal or fresh- 
 water, are, of common right, navigable high- 
 ways, if naturally capable of use for the 
 floating of vesseb, boats, rafts, or even logs, 
 or "whenever they are found of sufficient 
 capacity to float the products of the mines, 
 the forests, or the tillage of the country through 
 which they flow, to market;" 8 Barb. 239 ; 
 18 id. 211 ; 31 Me. 9 ; 42 id. 552 ; 20 Johns. 
 90 ; 3 N. H. 321 ; 10 111. 351 ; 2 Swan, 9 ; 
 2 Mich. 519 ; 5 Ind. 8. The state has the 
 right to improve all such rivers, and to regu- 
 late them by lawful enactments for the public 
 good; 4 Rich. 69 ; 31 Me. 361 ; 5 Ind. 13 ; 
 29 Miss. 21. Any obstruction of them with- 
 out legislative authority is a nuisance, and any 
 person having occasion to use the river may 
 abate the same, or, if injured thereby, may 
 receive his damages from its author ; 28 Penn. 
 195; 4 Wise. 454; 4 Cal. 180; 6 Cow. 518 ; 
 10 Mass. 70; 5 Pick. 492 ; Wood, Law Nuis. 
 597 et seq. ; 1 McCrary, 281 ; 80 N. Y. 239 ; 
 B. c. 36 Am. Rep. 612; 53 Md. 422; 8 Mo. 
 App. 266. And see Bbiuge. By the 
 ordinance of 1787, art. 4, relating to the 
 northwestern territory, it is provided that the 
 navigable waters leading into the Mississippi 
 and St. Lawrence, and the carrying-places 
 between the same, shall be common highways 
 and forever free ; 3 Story, U. S. Laws, 2077 ; 
 29 Miss. 21 ; 2 Michi 519. 
 
 Rivers, when naturally unfit for public use, 
 as above described, are called private rivers. 
 They are the private property of the riparian 
 proprietors, and cannot be appropriated to 
 public use, as highways, by deepening or 
 improving then? channels, without compensa- 
 tion to their owners; 16 Ohio, 540; 26 
 Wend. 404; 6 Barb. 265; 18 id. 277; 8 
 Penn. 379; 10 Me. 278; 1 McCord, 580. 
 And see Watbk-Coursk. 
 
 A river, then, may be considered — as pri- 
 vate in the case of shallow and obstructed 
 streams ; as private property, but subject to 
 public use, when it can be navigated ; and as 
 public, both with regard to its use and pro- 
 perty. Some rivers possess all these quali- 
 ties. The Hudson is mentioned as an in- 
 stance : in one part it is entirely private pro- 
 perty ; in another, the public have the use of 
 it ; and it is public property from the mouth 
 as high up as the tide flows ; 6 Barb. 265. 
 See, generally, Xa. Civ. Code, 444 ; Bacon, 
 Abr. Prerogatives (B 3) ; Jacobsen, Sea 
 Laws; 3 Kent, 411; Woolr, Waters; 
 Schultes, Aquatic Rights; Washb. R. P.; 
 Cruise, Dig. Greenl. ed.; Boundaries ; 
 Fishery ; Riparian Proprietors. 
 
 RIXA (Lat.). In Civil Law. A dis- 
 pute; a quarrel. Dig. 48. 8. 17. 
 
 RIXATRIX (Lat.). A common scold. 
 
 ROAD. , A passage through the country 
 for the use of the people. 3 "Seates, 421. See 
 Wat; Street. 
 
 In Maritime Lavr. An open passage of 
 the sea, which, from the situation of the ad- 
 jacent land and its own depth and wideness, 
 atlbrds a secure place for the common riding 
 and anchoring of vessels. Hale, de Port. Mar. 
 p. 2, c. 2. This word, however, does not appear 
 to have a very definite meaning ; 2 Chitty, 
 Com. Law, 4, 5. Often called "roadstead;" 
 2 Hugh. 17. 
 
 ROBBER. One who commits a robbery. 
 One who feloniously and forcibly takes goods 
 or money to any value from the person of 
 another by violence or putting him in fear. 
 
 ROBBERV. In Criminal Law. The 
 felonious and forcible taking from the person 
 of another, goods or money to any value, by 
 violence or putting him in fear. 4 Bla. Com. 
 243 ; Baldw. 102. See 12 Ga. 293. 
 
 Bobbery, by the common law, is larceny 
 from the person, accompanied by violence or 
 by putting in fear ; and an indictment there- 
 for must allege that the taking was from the 
 person, and that it was by violence or by put- 
 ting in fear, in addition to the averments that 
 are necessary in indictments for other lar- 
 cenies ; Jebb, 62 ; 1 Leach, 195 ; 7 Mass. 
 242; 17 id. 539; 8 Cush. 215. 
 
 By " taking from the person" is meant not 
 only the immediate taking from his person, 
 but also from his presence when it is done 
 with violence and against his consent ; 1 Hale, 
 PI. Cr. 533 ; 2 Russ. Cr. 61 ; 3 Wash. C. 
 0. 209; 11 Humphr. 167. The taking must 
 be by violence or putting the owner in fear ; 
 but both these circumstances need not concur ; 
 for if a man should be knocked down, and 
 then robbed while he is insensible, the offence 
 is still a robbery; 4 Binn. 379. And if the 
 party be put in fear by threats and then 
 robbed, it is not necessary there should be 
 any greater violence; 17 Mass. 539. The 
 violence or putting in fear must be at the time 
 of the act or immediately preceding ; 1 C. & 
 P. 304. 
 
 ROD. A measure sixteen feet and a half 
 long; a perch. 
 
 ROE, RICHARD. See Ejectment; 
 Pledges. 
 
 ROGATORY, LETTERS. See Let- 
 ters Rogatory. 
 
 ROGUE. A French word, which in that 
 language signifies proud, arrogant. In some 
 of the ancient English statutes it means an 
 idle, sturdy beggar, which is its meaning in 
 law. Rogues are usually punished as va- 
 grants. Although the word rogue is a word 
 of reproach, yet to charge one as a rogue is 
 not actionable; 5 Binn. 219. See 2 Dev. 
 162; Hard. 529. 
 
 ROLE D'EQUIPAGE. The list of a 
 ship's crew ; the muster roll. 
 
 ROLL. A schedule of parchment which 
 may be turned up with the hand in the form 
 of a pipe or tube. Jacob, Law Diet. 
 
 In early times, before paper came in common 
 use, parchment was the substance employed for 
 
ROLLING STOCK 
 
 602 
 
 ROTUKIER 
 
 making records, and, as the art of bookbinding 
 was but little used, economy suggested as the 
 most convenient mode the adding of sheet to 
 sheet, as was found requisite, and tbey were 
 tacked together in such a manner that the whole 
 length might be wound up together in the form 
 of spiral rolls. Bolls of the exchequer are kept 
 in that court relating to the revenue. The 
 ancient manuscript registers of the proceedings 
 in parliament were called KoUs of Parliament. 
 A Roll of the Temple is kept in each of the two 
 temples, called the calves head roll, wherein 
 every bencher, barrister and student is taxed 
 yearly. ^ 
 
 The records of a court or offices. 
 
 ROLLING STOCK. The movable ma- 
 chinery of a railroad, such as locomotive en- 
 gines, tenders, freight and passenger cars, 
 shop-tools, etc. Concerning the character of 
 rolling stock of railways in this country, there 
 still exists great diversity of opinion, one class 
 of cases holding it to be a fixture, at least so 
 far as to pass under a mortgage of the realty ; 
 23 111. 300; 23 How. 117 ; 54 Me. 263 ; 25 
 Barb. 485 ; 11 Am. Rep. 751, n.; 3 Dill. 
 412 ; and previous federal decisions ; another 
 class regarding it as personal property, and as 
 such liable to be seized and sold for the col- 
 lection of a tax, or upon the execution of a 
 judgment creditor as against mortgagees ; 52 
 N. Y. 521 ; see 54 N. Y. 314 ; 21 Wise. 44 ; 
 29 N. J. Eq. 311 ; 63 Mo. 17. 
 
 There are many decisions which do not 
 strictly fall under either of the above classes. 
 Of these, one class views rolling stock as an ac- 
 cessory of the railroad, passing by a deed or 
 mortgage as a necessary incident. The other 
 takes the ground that rolling stock being in- 
 dispensable to the exercise of the franchises, 
 cannot be sold under execution, because the 
 sale would prevent the use of the franchise. 
 In considering the several decisions, refer- 
 ence must be nad to the dates of their rendi- 
 tion, and to the changes in method of ope- 
 rating railroads in this country. In some 
 states, the question has been settled by legis- 
 lation, and such must be the ultimate solution 
 of the matter. See Green's Brice's, Ultra 
 Vires, 238, u. (a) ; 2. Redf. Railw. 504, n. 
 
 A mortgage of a railroad afterwards to be 
 built, and of the rolling stock appurtenant 
 to such road, attaches to the road and the 
 rolling stock as soon as they are purchased and 
 acquired; 23 How. 117; 6 Biss. 529; 11 
 Wall. 459 ; Jones, Railr. Sec. § 147. It is 
 not essential that tho rolling stock should be 
 especially mentioned in the mortgage ; gen- 
 ral words are enough. For instance, a mort- 
 gage of the line of a railroad "with all the 
 revenue or tolls thereof" covers rolling stock ; 
 18 Md. 183. See also 53 Ala. 237 ; 4 Biss. 
 85. The words "road and its franchise" do 
 not, however, cover rolling stock ; 36 Vt. 452. 
 The subject is fully treated in Jones, Railr. 
 Securities; see 4 So. L. Rev. 198. 
 
 ROLLING STOCK (OP RAIL- 
 WAYS) PROTECTION ACT. The act 
 
 of 35 & 36 Vict. c. 50, passed to protect the 
 
 rolling stock of railways from distress or sale 
 in certain cases. 
 
 ROLLS OPPICB OP THE CHAN- 
 CERy. An office in Chancery Lane, Lon- 
 don, which contains rolls and records of the 
 high court of chancery, of which the master 
 of the rolls is keeper. It was formerly called 
 domus conversorum, having been appointed 
 by Henry III. for the use of converted Jews 
 but for irregularities they were expelled by 
 Edward II., when it was put to its present 
 use. Blount, Encyc. Lond. 
 
 ROLLS, MASTER OF THE. See 
 
 Master op the Rolls. 
 
 ROMAN CATHOLIC CHAHITIES 
 ACT. The stat. 23 & 24 Vict. c. 134, pro- 
 viding a method for enjoying estates given 
 upon trust for Roman Catholics ; but invalid^ 
 ated by reason of certain of the trusts being 
 superstitious or otherwise illegal ; 3 Stepli. 
 Com. 76. See Superstitious Ubesj 
 Charities. 
 
 ROMNEY MARSH. A tract of land 
 in the county of Kent, England, containing 
 twenty- four thousand acres, governed by ear- 
 tain ancient and equitable laws of sewers, 
 composed by Henry de Bathe, a venerable 
 judge in the reign of king Henry III.; from 
 which laws all commissioners of sewers in 
 England may receive light and direction. 3 
 Steph. Com. 442, note (a); 3Bla. Com. 73, 
 note (0 ; Co. 4th Inst. ^76. 
 
 ROOD OP LAND. The fourth part of 
 an acre. 
 
 ROOT. That part of a tree or plant nnder 
 ground from which it draws most of its nour- 
 ishment from the earth. 
 
 When the roots of a tree planted in one 
 man's land extend into that of another, this 
 circumstance does not give the latter anjr 
 right to the tree, though such is the doctrine 
 of the civil law ; Dig. 41. 1. 7. IS ; but snch 
 person has a right to cut off' the roots np to 
 his line ; RoUe, 894. See Tree. 
 
 In a figurative sense, the term rool is used 
 to signify the person from whom one or more 
 others are descended. 
 
 ROTA (Lat.). A court. A celebrated 
 court of appeals at Rome, of which one judge 
 must be a German, one a Frenchman, two 
 Spaniards, and eight Italians. Encyc. Brit. 
 Its decisions had great weight, but were not 
 law, although judged by the law. Saccis 
 Trac. de Com. et Comb. § 1, qnsest. 7, para 2, 
 ampl. 8, num. 219, 253. There was also a 
 celebrated rota or court at Genoa about the 
 sixteenth century, or before, whose deeisioMi 
 in maritime matters form the first part « 
 Straccha de Merc. See IngersoU's Eoccus. 
 
 ROTITRIER. In Old French Law, 
 One not noble. Diet, de I'Acad. Fran?. 
 A free commoner ; one who did not hold m 
 land by homage and fealty, yet owed certain 
 services. Howard, Diet. de.Normande. 
 
ROUP 
 
 603 
 
 RULE TO SHOW CAUSE 
 
 ROUP. In Scotch Law. Sale by auc- 
 tion. Auction. Index to Burton, Law of 
 Scotl.; Bell, Diet. Auction. 
 
 ROUT. In Criminal Law. A disturb- 
 ance of the peace by persons assembled to- 
 gether with an intention to do a thing which 
 ff executed would have made them rioters, 
 and actually making a motion towards the 
 execution of their purpose. Haw. P. C. 516. 
 
 It generally agrees in all particulars with 
 a riot, except only in this : that it may be a 
 . complete offence without the execution of the 
 intended enterprise. Hawk. PI. Cr. c. 65, 
 s. 14; 1 Russ. Cr. 253; 4 Bla. Com. 140; 
 Viner, Abr. Riots, etc. (A 2) ; Comyns, Dig. 
 Forcible Entry (D 9). Where a number of 
 persons met, staked money, and agreed to 
 engage in a prize fight, it was held a rout ; 2 
 Speers, 599. Not less than three assembled 
 persons are sufficient to constitute the offence ; 
 2 Bish. Cr. L. § 1186. 
 
 ROUTOUSLY. In Pleading; A tech- 
 nical word, properly used in indictments for 
 a rout as descriptive of the offence. 2 Salk. 
 593. 
 
 . ROYAL BURGHS. Boroughs incor- 
 porated in Scotland by royal charter. Bell. 
 
 ROYAL FISH. Whales and sturgeons, — 
 to which some add porpoises, — which when 
 cast on shore or caught near shore belonged 
 to the king of England by his prerogative. 
 1 Edw. I. ; 17 Edw. V. c. 1 ; 1 Eliz. c. 5 ; 
 17 Edw. II. c. 11 ; Bracton, 1. 3, c. 3 ; Brit- 
 ton, c. 17; Fleta, lib. 1, c. 45, 46. 
 
 ROYAL HONORS. In diplomatic lan- 
 guage, by this term is understood the rights 
 enjoyed by every empire or kingdom in Eu- 
 rope, by the pope, the grand duchies of Ger- 
 many, and the Germanic and Swiss confedera- 
 tions, to precedence over all others who do 
 not enjoy the same rank, with the exclusive 
 right of sending to other states public minis- 
 ters of the first rank, as ambassadors, to- 
 gether with other distinctive titles and cere- 
 monies. Vattel, Law of Nat. b. 2, c. 3, § 
 88 ; Wheat. Int. Law, pt. 2, c. 3, § 2. 
 
 ROYAL MINES. Mines of silver and 
 gold belonged to the king of England, as 
 part of his prerogative of coinage, to furnish 
 him with material. 1 Bla. Com. 294*. See 
 Mines. 
 
 RUBRIC. The title or inscription of any 
 law or statute ; because the copyists formerly 
 drew and painted the title of laws and stat- 
 utes in red letters (rubro colore). Ayliffe, 
 Paud. b. 1, t. 8 ; Diet, de Jur. 
 
 RUDENESS. In Criminal Law. An 
 impolite action, contrary to the usual rules ob- 
 served in society, committed by one person 
 against another. 
 
 This is a relative term, which it is difficult to 
 define : those acts which one friend might do 
 to another could not be justified by persons 
 altogether unacquainted; persons moving in 
 polite society could not be permitted to do to 
 each other what boatmen, hostlers, and such 
 
 persons might perhaps justify; 2 Hagg. Eccl. 
 73. An act done b^ a gentleman towards a 
 lady might be considered rudeness, which if 
 done by one gentleman to another might not 
 be looked upon in that light ; Russ. & R. 130. 
 A person who touches another with rudeness 
 is guilty of a battery. 
 
 RULE ABSOLUTE. If, upon the hear- 
 ing of a rule to show cause, the cause shown 
 should be decided insufficient, the rule is made 
 absolute, i. e., the court makes final order for 
 the party to perform the requirements of the 
 rule. See Rule Nisi. 
 
 RULE OP COURT. An order made by 
 a court having competent jurisdiction. 
 
 Rules of court are either general or special ; 
 the former are the laws by which the prac- 
 tice of the court is governed ; the latter are 
 special orders made in particular cases. 
 
 Disobedience to these is punished by giving 
 judgment against the disobedient party, or by 
 attachment for contempt. 
 
 RULE OP LA'W. A general principle 
 of law, recognized as such by authorities, and 
 stated usually in the form of a maxim. It is 
 called a rule because in doubtful and unfore- 
 seen cases it is a rule for their decision ; it 
 embraces particular cases within general prin- 
 ciples. Toullier, tit. pr61. n. 17 ; 1 Bla. Com. 
 44 ; Domat, liv. pr61. t. 1, s. 1 ; Ram, Judgm. 
 30 ; 3 B. & Ad. 34 ; 2 Russ. 216, 580, 581 ; 
 4 id. 305; 10 Price, 218; 1 B. & C. 86; 1 
 Ld. Raym. 728 ; 4 Mauie & S. 348. See 
 Maxim. 
 
 RULE NISI. In Practice. A rule ob- 
 tained on motion ex parte to show cause 
 against the particular relief sought. Notice 
 is served on the party against whom the rule is 
 obtained, and the case is then heard like other 
 motions, except that the party showing cause 
 is entitled to open and reply. The rule is 
 made absolute unless (nisi) good cause is 
 shown against it. Graham, Pr. 688 ; 3 Steph. 
 Com. 680. 
 
 RULE TO PLEAD. A rule of court 
 requiring defendant to plead within a given 
 time, entered as of course by the plaintiff 
 on filing his declaration. On defendant's 
 failure to put in his plea accordingly, a judg- 
 ment in the nature of a judgment by default 
 may be entered against him. In England, 
 under the common law Procedure Act of 
 1852, the rule to plead is abolished, a notice 
 to plead indorsed on the declaration being 
 sufficient. The Judicature Act of 1875 al- 
 lows the defendant eight days for his defence 
 after the delivery of the statement of claim, 
 unless thB time be extended by the court. In 
 the United States circuit court, defendant 
 may be ruled to plead in fourteen days ; Rule 
 xxviii. 
 
 RULE TO SHO"W CAUSE. An order 
 made by the court, in a particular case, upon 
 motion of one of the parties calling upon the 
 other to appear at a particular time before the 
 
RULE OF THE WAR OF 1756 604 
 
 RYOT 
 
 court, to show cause, if any he have, "why a 
 certain thing should not be done. 
 
 This rule is granted generally upon the 
 oath or affirmation of the applicant ; but upon 
 the hearing the evidence of competent wit- 
 nesses must be given to support the rule, and 
 the affidavit of the applicant is insufficient. 
 See Rule Absolute ; Rule Nisi. 
 
 RULE OF THE VTAR OP 1756. In 
 Commercial Law, War. A rule relating to 
 neutrals was the first time practically estab- 
 lished in 1756, and universally promulgated, 
 that " neutrals are not to carry on in times of 
 war a trade which was interdicted to them in 
 times of peace." Chitty, Law of Nat. 166 ; 2 
 C. Rob. 186 ; 4 id. App. ; 1 Kent, 82. 
 
 RULES. Certain limits without the actual 
 walls of the prisons, where the prisoner, on 
 proper security previously given to the proper 
 authority, may reside. These limits are con- 
 sidered, for all legal and practical purposes, 
 as merely a further extension of the prison- 
 walls. So used in America. See 3 Bibb, 
 202. The rules or permission to reside with- 
 out the prison may be obtained by any per- 
 son not committed criminally ; 2 Stra. 845 ; 
 nor for contempt ;• id. 817 ; by satisfying the 
 marshal or warden or other authority of the 
 security with which he may grant such per- 
 mission. 
 
 Proceedings in an action out of court, and 
 in vacation time. See 12 Gratt. 312. 
 
 RULES OF PRACTICE. Certain or- 
 ders made by the courts for the purpose of 
 regulating the practice of members of the bar 
 and others 
 
 Every court of record has an inherent 
 power to make rules for the transaction of its 
 business ; which rules they may from time to 
 time change, alter, rescind, or repeal. While 
 they are in force, they must be applied to all 
 cases which fall within them ; they can use 
 no discretion, unless such discretion is author- 
 ized by the rules themselves. Rules of court 
 cannot, of course, contravene the constitution 
 or the law of the land ; 3 Pick. 512 ; 2 Harr. 
 & J. 79; 1 Pet. 604; 3 Binn. 227, 417; 3 
 S. «E R. 253 ; 8 id. 336 ; 2 Mo. 98. 
 
 RUMOR. A general public report of 
 certain things, without any certainty as to 
 their truth. ' 
 
 In general, rumor cannot be received in 
 evidence ; but when the question is whether 
 such rumor existed, and not its truth or false- 
 hood, then evidence of it may be given. 
 
 RUNCINUS (Lat.). A nag. 1 Thomas. 
 Co. Lit. 471. ' 
 
 RUNNING ACCOUNT. An open ac 
 count. See 2 Pars. Oontr. 351 ; Account- 
 Merchants' Accounts ; Limitations ' 
 
 RUNNING AT LARGE. A term ap. 
 phed to animals estray, wandering appar. 
 ently without owner or keeper, and not con- 
 fined to any certain place. The phrase hag 
 been judicially construed in a number of re- 
 cent cases. In 50 Vt. 130 ; s. c. 28 Am, 
 Rep. 496, a hound, in close pursuit of a fox' 
 and out of sight and hearing of its master' 
 was held not to be within the meaning of a 
 statute permitting any one to kill a dog "run- 
 ning at large ofi' the premises of the owner 
 or keeper, without a collar with the keeper's 
 name on it." Animals escaping from the 
 owner's premises cannot be said to be running 
 at large ; the phrase implies permission or 
 assent or at least some fault on the owner's 
 part; 21 Hun, 249; but contra, 63 Iowa, 
 632; see 52 Cal. 653; 23 Alb. L. J. 504, 
 An animal running on the range where it was 
 permitted to run by its owner, has been held 
 not an estray, especially where the owner 
 was known to the person taking it up; i 
 Oreg. 206 ; '27 Wise. 422 ; 29 Iowa, 437, 
 
 RUNNING DAYS. Days counted in 
 succession, without any allowance for holi- 
 days. The term is used in settling lay-days or 
 days of demurrage. 
 
 RUNNING LANDS. In Scotch Law, 
 Lands where the ridges of a field belong 
 alternately to different proprietors. Bell, 
 Diet. 
 
 RUNNING OP THE STATUTE OP 
 LIMITATIONS. A metaphorical expres- 
 sion, by which is meant that the time men- 
 tioned in the statute of limitations is con- 
 sidered as passing. 1 Bouvier, Inst. n. 861. 
 
 RUNNING TVITH THE LAND, A 
 technical expression applied to covenants real 
 which aflfect the land. See Covenant. 
 
 RUSE DB GUERRE (Fr.). Literally, 
 a trick in war. A stratagem. It is said to 
 be lawful among belligerents, provided it does 
 not involve treachery and falsehood. Grotius, 
 Droit de la Guerre, liv. 3, c. 1, § 9. 
 
 RUTA(Lat.). InCivULaw. The name 
 given to those things which are extracted or 
 taken from land : as, sand, chalk, coal, and 
 such other things. Pothier, Pand. 1. 50. 
 
 RYOT. In India. A peasant, subject, 
 or tenant of house or land. Whart. Diet. 
 
SABBATH 
 
 605 
 
 SAILING 
 
 s. 
 
 SABBATH. A name sometimes impro- 
 perly used for Sunday, q. v. 
 
 SABBATH-BREAKING. The desecra- 
 tion of the Lord's day. 45 Md. 432. See 
 Sunday. 
 
 SABIHIANS. A sect of lawyers whose 
 jSrst chief was Atteius Capito, and the second 
 Cselius Sabinus, from whom they derived 
 their name. Clef des Lois Rom. 
 
 SAC, SAK (Lat. saca, or sacha). An 
 ancient privilege, which a lord of a manor 
 claimed to have in his court, of holding plea 
 in causes of trespass arising among his ten- 
 ants, and imposing fines touching the same. 
 
 SACABXJRTH, SACABERE (from sac, 
 cause, and burh, pledge). He that is robbed 
 and puts in surety to prosecute the felon with 
 fresh suit. Briton, c. 15, 29 ; Bracton, 1. 3, 
 c. 32 ; Cowel. 
 
 SACQUIER. In Maritime Law. The 
 name of an ancient officer, whose business 
 was to load and unload vessels laden with 
 salt, corn, or fish, to prevent the ship's crew 
 defrauding the merchant by false tale, or 
 cheating him of his merchandise otherwise. 
 Laws of Oleron, art. 11, published in an 
 English translation in 1 Pet. Adm. xxv. See 
 Arrameur ; Stevedore. 
 
 SACRAMENTALES (L. Lat. sacra- 
 mentum, oath). Compurgatores, which see. 
 Jurors. Law Fr. & Lat. Diet. 
 
 SACRAMENTTTM (Lat.). In Civil 
 Law. A gage in money laid down in court 
 by bbth parties that went to law, returned 
 to him who had the verdict on his side, but 
 forfeited by the party who was cast, to the 
 exchequer, to be laid out in sacris rehus, and 
 therefore so called. Varro, lib. 4. de Ling. 
 Lat. c. 36. 
 
 An oath, as a very sacred thing. Ains- 
 worth. Diet. ; Vioat, Voc. Jur. 
 
 The oath taken by soldiers to be true to 
 their general and country. Jd. 
 
 In Old Common Law. An oath. Cowel ; 
 Jacob. 
 
 SACRAMENTTTM SECISIONIS 
 (Lat.J. The voluntary or decisive oath of 
 the civil law, where one of the parties to a 
 suit, not being able to prove his case, offers to 
 refer the decision of the cause to the oath of 
 his adversary, who is bound to accept or make 
 the same offer on his part, or the whole is 
 considered as confessed by him. 3 Bla. Com. 
 342. 
 
 SACRILEGE. The act of stealing, from 
 the temples or churches dedicated to the wor- 
 ship of God, articles consecrated to divine 
 uses. Ayliffe, Parerg. 476. Also, the aliena- 
 tion to laymen of property given to pious 
 naes. Par, Ant. 390. 
 
 S.S!VITIA (Lat.). Cruelty. To consti- 
 tute scBvitia there must be such a degree of 
 cruelty as to endanger the party's suffering 
 bodily hurt. 1 Hagg. Cons. 35; 2 Mass. 
 150; 4 id. 587. 
 
 SAFE-CONDUCT. A passport or per- 
 mission from a neutral state to persons who 
 are thus authorized to go and return in safety, 
 and, sometimes, to carry away certain things 
 in safety. 
 
 According to common usage, the term passport 
 Is employed on ordinary occasions for the per- 
 mission given to persons when there Is no reason 
 why they .should not go where they please ; and 
 safe-eonditet is the name given to the instrument 
 which authorizes certain persons, as enemies, to 
 go into places where they could not go without 
 danger unless thus authorized by the govern- 
 ment. 
 
 The name of an instrument given to the 
 captain or master of a ship to proceed on a 
 particular voyage : it usually contains his 
 name and residence, the name, description, 
 and destination of the ship, with such other 
 matters as the practice of the place requires, 
 This document is indispensably necessary for 
 the safety of every neutral ship. 
 
 The act of congress of April 30, 1790, s. 
 27, punishes the violation of any safe-conduct 
 or passport granted under the authority of 
 the United States, on conviction, with im- 
 prisonment, not exceeding three years, and 
 a fine at the discretion of the court. See 
 Conduct; Passport; 18 Viner, Abr. 272. 
 
 SAFE-PLEDGE. A surety given that a 
 man shall appear upon a certain day. Brac- 
 ton, 1. 4, c. 1. 
 
 SAFEGUARD. A protection of the 
 king to one who is a stranger, who fears vio- 
 lence from some of his subjects for seeking 
 his right by course of law. Reg. Orig. 26. 
 
 SAID. Before mentioned. 
 
 In contracts and pleadings it is usual and 
 proper, when it is desired to speak of a per- 
 son or thing before mentioned, to designate 
 them by the term said or aforesaid, or by 
 some similar term ; otherwise the latter de- 
 scription will be ill for want of certainty. 
 Comyns, Dig. Pleader (C 18) ; Gould, PI. 
 §63. 
 
 The reference of the word said is to be deter- 
 mined, in any given case, by the sense. The 
 relative same refers to the next antecedent, in 
 the interpretation of a written instrument, the 
 word said does so only when the plain meaning 
 requires it ; 3 Kent, 555 ; 10 Ind. 373. 
 
 SAILING. It is sometimes important, 
 in the construction of a charter party, to 
 know when a vessel commenced her voyage, 
 and to this end to determine what constitutes 
 a sailing. It has been held that complete 
 readiness for the sea, with the intention of 
 
SAILING INSTRUCTIONS 
 
 606 
 
 SALE 
 
 proceeding at once on the voyage, is suffi- 
 cient, though head winds should prevent any 
 actual progress ; 20 Pick. 275. It has also 
 been held that some measurable progress, 
 though by tow-boat, is also necessary ; 4 
 W. N. C. Pa. 415. 
 
 SAILING- INSTRUCTIONS. In 
 Maritime Lavir. Written or printed direc- 
 tions, delivered by the commanding officer of 
 a convoy to the several masters of the ships 
 under his care, by which they are enabled to 
 understand and answer his signals, to know 
 the place of rendezvous appointed for the 
 fleet in case of dispersion by storm, by an 
 enemy, or by any other accident. 
 
 Without sailing instructions no vessel can 
 have the full protection and benefit of convoy. 
 Marsh. Ins. 368. 
 
 SAILORS. Seamen ; mariners. See 
 Skamen ; Shipping Articles. 
 
 ST. MARTIN LE GRAND, COURT 
 OF. An ancient court in London, of local 
 imjiortance, formerly held in the church from 
 which it took its name. 
 
 SAISIE-EXECUTION. In French 
 Laiw. A writ of execution by which the 
 creditor places under the custody of the law 
 the movables of his debtor, which are liable 
 to seizure, in order that out of them he may 
 obtain payment of the debt due by him. 
 La. Code of Pi^act. art. 641; Dalloz, Diet. 
 It is a writ very similar to the fieri facias of 
 the common law. 
 
 SAISIE-FORAINE. In French Law. 
 A permission given by the proper judicial 
 officer to authorize a creditor to seize the 
 property of his debtor in the district which he 
 inhabits. Dalloz, Diet. It has the effijct of 
 an attachment of property, which is applied 
 to the payment of the debt due. 
 
 SAISIE-GAGERIE. In French Law. 
 A conservatory act of execution, by which 
 the owner or principal lessor of a house or 
 farm causes the furniture of the house or 
 farm leased, and on which he has a lien, to be 
 seized, in order to obtain the rent due to him. 
 It is similar to the distress of the common 
 law. Dalloz, Diet. 
 
 SAISIE-IMMOBILIERE. In French 
 La'W. A writ by which the creditor puts in 
 the custody of the law the immovables of his 
 debtor, that out of the proceeds of their sale 
 he may be paid his demand. 
 
 SAXiARy. A reward or recompense for 
 services performed. 
 
 It is usually applied to the reward paid to a 
 public ofiBcer for the performance of his official 
 duties. 
 
 Salary is also applied to the reward paid for 
 the performance of other services ; but if it be 
 not fixed for each year it is called honorarium. 
 Pothier, Pand. According to M. Duvergler, the 
 distinction between honorarium and salary is 
 this. By the former is understood the reward 
 given to the most elevated professions for ser- 
 vices performed ; and by the latter the price of 
 hiring of domestic servants and workmen ; 19 
 TouUier, n. 268, p. 292, note. 
 
 There is this difference between salary and 
 price : the former is the reward paid foreervicei 
 or for the hire of things ; the latter is the con- 
 sideration paid for a thing sold : Leo. Elem kl 
 907, 908. »s 
 
 SALE. An agreement by which one of 
 two contracting parties, called the seller 
 gives a thing and passes the title to it, in ex- 
 change for a certain price in current money 
 to the other party, who is called the buyer or 
 purchaser, who, on his part, agrees to pay 
 such price. 2 Kent, 363; Pothier, Vente, 
 n. 1. 
 
 This contract differs ffom a barter or exchange 
 in this : that in the latter the price or considera- 
 tion, instead of being paid in money, is paid in 
 goods or merchandise susceptible of a valuation 
 12 N. H. 390 ; 43 Iowa, 194 ; 65 Ind. 409 ; 21 Vt! 
 520. See Pbige. It differs from accord and 
 satisfaction, because in that contract the thingis 
 given for the purpose of quieting a claim, and 
 not for a price ; and from bailment, because there 
 the agreement is for the return of the subject 
 matter, in its original or an altered ibim, while 
 in sale it is for the return of an equivalent in 
 money ; L. R. 3 P. C. C. 101 ; and see 100 Maes. 
 198 ; 79 Penn. 488 ; 39 Conn. 70 ; 55 111. 45. 
 
 An onerous gift, when the burden it imposes 
 is the payment of a sum of money, is, when ac- 
 cepted, in the nature of a sale. When partition 
 is made between two or more joint owners of a 
 chattel, it would seem the contract is in the na- 
 ture of a barter. See 11 Pick. 311. 
 
 An absolute sale is one made and com- 
 pleted without any condition whatever. 
 
 A conditional sale is one which depends for 
 its validity upon the fulfilment of some con- 
 dition. See 4 Wash. C. C. 588 ; 8 Vt. 164; 
 28 Ohio St. 630 ; 68 Ga. 379 ; 126 Mass. 
 519 ; Benj. Sales, §320. 
 
 X forced sale is one made without the con- 
 sent of the owner of the property, by some 
 officer appointed by law, as by a marshal or 
 a sherifif, in obedience to the mandate of a 
 competent tribunal. This sale has the 
 effect to transfer all the rights the owner 
 had in the property, but it does not, like a 
 voluntary sale of personal property, guaran- 
 tee a title to the thing sold ; it merely trans- 
 fers the rights of the person as whose pro- 
 perty it has been seized. This kind of a sale 
 is sometimes called a judicial sale. 
 
 A. private sale is one made voluntarily, and 
 not by auction. 
 
 Apublic sale is one made at auction to the 
 highest bidder. Auction sales sometimes are 
 vtSuntary, as when the owner chooser to sell 
 his goods in this way, and then as between 
 the seller and the buyer the usual rules relat- 
 ing to sales apply ; or they are involuntary 
 or forced, when the same rules do not ap- 
 
 A voluntary sale is one made freely with- 
 out constraint by the owner of the thing sold; 
 this is the common case of sales, and to this 
 class the general rules of the law of sale 
 apply. 
 
 Parties. As a general rule, all persons 
 sui Juris may be either buyers or sellers; 
 Story, Sales, § 9. See Parties. But no 
 one can sell goods and convey a valid title to 
 
SALE 
 
 607 
 
 SALE 
 
 them unless he be owner or lawfully represent 
 the owner: nemo dat quodnon kabet; Benj. 
 Sales, § 6 ; 2 Ad. & E. 495 ; 89 111. 540 ; 56 
 N. H. 158; 115 Mass. 129. And even an 
 innocent purchaser from one not the owner, 
 or his proper representative, acquires no valid 
 title; 6 B. & C. 515; 13 M. & W. 603; 
 Benj. Sales, § 6 ; 54 Ind. 141 ; 61 N. Y. 
 477. 
 
 There is a class of persons who are inca- 
 pable of purchasing except sub modo, as 
 infants and married women, insane persons, 
 and drunkards ; Benj. Sales, §§ 21-37; and 
 another class, who, in consequence of their 
 peculiar relation with regard to the owner of 
 the thing sold, are totally incapable of be- 
 coming purchasers while that relation exists ; 
 these are trustees, guardians, assignees of in- 
 solvents, and, generally, all persons who, by 
 their connection with the owner, or by being 
 employed concerning his affairs, have ac- 
 quired a knowledge of his property, as, at- 
 torneys, conveyancers, and the like. 
 
 Mutual assent. The consent of the con- 
 tracting parties, which is of the essence of a 
 sale, consists in the agreement of the will of 
 the seller to sell a certain thing to the buyer 
 for a certain price, and in the will of the 
 buyer to purchase the same thing for the 
 same price. It must, therefore, be mutual, 
 intended to bind both parties, and must co- 
 exist at the same moment of time ; Benj. 
 Sales, § 39. Thus, if a condition be affixed 
 by the party to whom an offer is made, or a 
 modification requested, this constitutes a re- 
 jection of the offer, and a new proposal, 
 which must be accepted by the first proposer, 
 otherwise there would be no assent by the 
 parties to the same thing, at the same time ; 
 4DeG. J. &S. 646; 34U. C. Q. B. 410; 1 
 Bradw. 153. It follows that the assent must 
 correspond with the offer in every particular ; 
 8 C. E. Green, 512 ; 14 Pet. 77 ; 43 Vt. 161 ; 
 118 Mass. 232. 
 
 When there has been a mistake made as to 
 the article sold, there is no sale, because no 
 mutual agreement upon the subject of the 
 sale : as, for example, where a broker, who 
 is the agent of both parties, sells an article 
 and delivers to the seller a sold note describ- 
 ing the article sold as " St. Petersburg clean 
 hemp," and a bought note to the buyer as 
 "Riga Rhine hemp," there is no sale ; 4 Q. 
 B. 747 ; 112 Mass. 32 ; 49 N. Y. 583. 
 
 The consent is certain when the parties ex- 
 pressly declare it. This, in some cases, it 
 is requisite should be in writing. See 
 Frauds, Statute of. This writing may 
 he a letter. See Letter; 4 Bingh. 653 ; 3 
 Mete. Mass. 207 ; 16 Me. 458. 
 
 An express consent to a sale may be given 
 verbally, when it is not required by the sta- 
 tute of frauds to be in writing. 
 
 When a party, by his acts, approves of 
 what has been done, as if he knowingly uses 
 goods which have been left at his house by 
 another who intended to sell them, he will by 
 that act confirm the sale. 
 
 Care must be taken to distinguish between 
 an agreement to enter into a future contract 
 of sale, which would be called an executory 
 contract of sale, and pass no title until exe- 
 cuted, and a present actual agreement to 
 make a sale, which passes the title immedi- 
 ately. 
 
 The distinction between executed and ex- 
 ecutory contracts of sale depends upon the 
 intention of the parties. When the vendor 
 appropriates goods to the vendee, or, in other 
 words, signifies his intention that the right of 
 property shall pass at once, and the vendee 
 assents, the law will give effect to the inten- 
 tion and the title will pass immediately ; 104 
 Mass. 262; 54 N. Y. 167; 4 Cush. 33; 14 
 B. Monr. 413. This principle remains the 
 same, — whether the goods are sold for cash 
 or on credit, whether they are to be delivered 
 forthwith or at a future time ; whether they 
 have yet to be weighed, measured, or set 
 apart, or whether they are still unfinished ; and 
 by the terms of the agreement, the vendor 
 has either to complete them, or in some way 
 add to their value. These circumstances may 
 be reason for supposing that the parties do 
 not mean to pass the title, but will not defeat 
 the intention to do so if it exists ; Lectures 
 on Contracts, by Prof. Hare ; 1 Q. B. 389 ; 
 2 B. 8e C. 540 ; 102 Mass. 443 ; 13 Pick. 
 175; 6 Rand. 473. 
 
 The thing sold. There must be a thing 
 which is the object of the sale ; for if the thing 
 sold at the time of the sale had ceased to 
 exist, it is clear there can be no sale ; Benj. 
 Sales, § 76 ; if, for example, you and I being 
 in Philadelphia, I sell you my house in Cin- 
 cinnati, and at the time of the sale it be 
 burned down, it is manifest there was no sale, 
 as there was not a thing to be sold ; 5 Maule 
 & S. 228 ; 5 H. L. C. 673 ; 11 Pet. 63 ; 20 
 Pick. 139. It is evident, too, that no sale 
 can be made of things not in commerce : as, 
 the air, the water of the sea, and the like. 
 
 In general, there must be an agreement as to 
 the specific goods which form the basis of the 
 contract of sale ; in other words, to make a 
 perfect sale the parties must have agreed, the 
 one to part with the title to a specific article, 
 and the other to acquire such title : an agree- 
 ment to sell one hundred bushels of wheat, 
 to be measured out of a heap, does not 
 change the property until the wheat has 
 been measured ; 15 Johns. 349 ; 2 N. Y. 
 258; 7 Ohio, 127; 3 N. H. 282; 6 Pick. 
 280 ; 7 E. & B. 885. And see 6 B. & C. 
 388 ; 7 Gratt. 240 ; 34 Me. 289 ; 25 Penn. 
 208; 24 N. H. 337; 11 Humphr. 206; 11 
 Ired. 609. This rule is merely a guide to the 
 interpretation of the contract, and will not 
 override the intention of the parties expressly 
 declared or implied from their language ; L. 
 R. 7 Q. B. 436; 24 Penn. 14; 68 111. 196; 
 20 Pick. 280. 
 
 The price. To constitute a sale, there 
 must be a price agreed upon. The presump- 
 tion is that where the price is not definitely 
 ascertained the title remains in the vendor 
 
SALE 
 
 608 
 
 SALVAGE 
 
 until a computation has been made ; Blackb. 
 Sales, 122; 24 N. H. 336; 11 Gush. 573- 
 But this may be rebutted by proof that the 
 parties intended to have the right of property 
 vest in the purchaser at once ; 39 Conn. 
 413 ; 55 Ga. 633 ; 19 N. Y. 330. Upon the 
 maxim id certum est quod reddi certum potest, 
 a sale may be valid although it is agreed that 
 the price for the thing sold shall be deter- 
 mined by a third person ; 4 Pick. 179. See 
 10 Bingh. 382, 487; 11 Ired. 166. 
 
 The price must be an actual or serious 
 price, with an intention on the part of the 
 seller to require its payment : if, therefore, 
 one should sell a thing to another, and hy the 
 same agreement he should release the buyer 
 from the payment, this would not be a sale, 
 but a gift ; because in that case the buyer 
 never agreed to pay any price, the same 
 agreement by which the title to the thing is 
 passed to him discharging him from all obli- 
 gations to pay for it. As to the quantum of 
 the price, that is altogether immaterial unless 
 there has been fraud m the transaction. The 
 price must be certain or determined ; but it 
 is sufficiently certain if, as before observed, it 
 be left to the determination of a third person ; 
 4 Pick. 1 79. And an agreement to pay for 
 goods what they are worth is sufficiently cer- 
 tain ; Coxe, N. J. 261. See Price ; Samfi,£. 
 
 Sale to arrive. A sale of goods to arrive 
 per Argo, or on arrival pe^ Argo, is construed 
 to be a sale of goods subject to a double con- 
 ditipn precedent : that the ship arrives and 
 the goods are on board ; 6 M. & W. 639 ; 
 Ey. & M. 406. In such case, title to the 
 goods does not pass till their arrival; 16 N. 
 Y. 597. 
 
 Sale for illegal purpose. A sale of goods 
 for the purpose of smuggling is invalid ; 3 
 Term, 454 ; but not when a foreigner sold the 
 goods abroad having no concern in the smug- 
 gling ; 1 Cowp. 34 ; see 50 N. H. 253. The 
 mere knowledge of the vendor that the goods 
 sold would be used for an illegal purpose does 
 not render the sale illegal; 50 N. H. 268; 
 32 Vt. 110; 3 Cliff. 494. See Benj. Sales, 
 §511, n. 
 
 Real estate. The above rules apply to sales 
 of personal property. The sale of real estate 
 is governed by other rules. When a contract 
 has been entered into for the sale of lands, 
 the legal estate in such lands still remains 
 vested in the vendor, and it does not become 
 vested in the vendee until he shall have re- 
 ceived a lawful deed of conveyance from the 
 vendor to him ; and the only remedy of the 
 purchaser at law is to bring an action on the 
 contract and recover pecuniary damages for a 
 breach of the contract. In equity, however, 
 after a contract for the sale, the lands are 
 considered as belonging to the purchaser, and 
 the court will enforce his rights by a decree 
 for a specific performance ; and the seller will 
 be entitled to the purchase-money; Wms. 
 K. P. 127. See Specific Performance. 
 
 In general, the seller of real estate does not 
 guarantee the title ; and if it be desired that 
 
 he should, this must be done hy inserting a 
 warranty to that effect. See, generally 
 Brown, Campbell, Blackburn, Long, Stoiy' 
 on Sales ; Dart, Sudden, on Vendors' 
 Pothier, Vente ; Duvergier, Vente ; 2 Kent ■ 
 Parsons, Story, on Contracts ; Conthacts ■ 
 Delivery; Parties; Stoppage ijJ 
 Transitu. 
 
 SALE-NOTE. A memorandum given by 
 a broker to a seller or buyer of goods, statittr 
 the fact that certain goods have been sold by 
 him on account of a person called the seller 
 to another person called the buyer. Sale- 
 notes are also called bought and sold notes 
 which see. ' 
 
 SALE AND RETURN. When gooda 
 are sent from a manufacturer or wholesale 
 dealer to a retail trader, in the hope that be 
 may purchase them, with the understanding 
 that what he may choose to take he shafi 
 have as on a contract of sale, and what he 
 does not take he will retain as a consignee for 
 the owner, the goods are said to have been 
 sent on sale and return. 
 
 The goods taken by the receiver as on sale 
 will be considered as sold, and the title to 
 them is vested in the receiver of them : the 
 goods he does not buy are considered as a 
 deposit in the hands of the receiver of them, 
 and the title is in the person who sent them. 
 
 1 Bell, Com. 268. 
 
 SALIC OR SALIQUE LAW. The 
 name of a code of laws, so called from the 
 Salians, a people of Germany who settled in 
 Gaul under their king Pharamond. 
 
 The most remarkable law of this code is 
 that which regards succession. De terra vero 
 salicd nulla portio hcereditatis transit in wi- 
 lierem, sedhoc virilis sextus acquirit; hoc est, 
 Jilii in ipsd hcereditate succedunt: no part 
 of the salique land passes to females, bat the 
 males alone are capable of taking ; that is, the 
 sons succeed to the inheritance. This has 
 ever excluded females from the throne of 
 France. 
 
 SALVAGE. In Maritime Law. A 
 compensation given by the maritime law for 
 service rendered in saving property or res- 
 cuing it from impending peril on the sea or 
 wrewted on the coast of the sea, or, in the 
 United States, on a public navigable river or 
 lake, where inter-state or foreign commerce 
 is carried on. 1 Sumn. 210, 416 ; 12 Howi 
 466 ; 1 Blatchf. 420 ; 5 McLean, 359. 
 
 The property saved. 2 Phill. Ins. § U88; 
 
 2 Pars. Marit. Law, 595. 
 
 The peril. In order to found a title to sal- 
 vage, the peril from which property was saved 
 must be real, not speculative merely ; 1 Cra. 
 1 ; 1 Ben. Adm. 166 ; but it need not be such 
 that escape from it by any other means than 
 by the aid of the salvors was impossibter-Il- 
 is sufficient that the peril was something ex- 
 traordinary, something differing in kind and 
 degree from the ordinary perils of naviga» 
 tion ; 1 Curt. C. 0. 353 ; 2 id. 350. All ser- 
 vices rendered at sea to a vessel in distress 
 
SALVAGE 
 
 609 
 
 SALVAGE 
 
 are salvage services ; 1 W. Rob. 1 74 ; 8 id. 
 71 But the peril must be present and pend- 
 ing, not future, contingent, and conjectural : 
 1 Sumn. 216; 3 Hagg. Adm. 344. It may 
 arise from the sea, rocks, fire, pirates, or ene- 
 mies ; 1 Cra. 1 ; or from the sickness or 
 death of the crew or master ; 1 Curt. C. C. 
 376 ; 2 Wall. Jr. 59 ; 1 Swa,b ; 84. 
 
 ne saving. In order to give a title to sal- 
 vage, the^property must be effectuallv saved ; 
 it must be brought to some port of safety, 
 and it must be there in a state capable of be- 
 ing restored to the owner, before the service 
 can be deemed completed ; 1 Sumn. 41 7 ; 1 
 W. Kob. 329, 406. The salvage services 
 must be performed by persons not bound by 
 their legal duty to render them; 1 Hagg. Adm. 
 227 ; 2 Spinks, Adm. 253. The property 
 must be saved by the instrumentality of the 
 asserted salvors, or their services must con- 
 tribute in some certain degree to save it ; 4 
 Wash. C. C. 651 ; 01c. 462 ; though, if the 
 services were rendered on the request of the 
 master or owner, the salvor is entitled to sal- 
 vage though the services were slight and the 
 property was saved mainly by a providential 
 act; 5 McLean, 359 ; 1 Newb. 130; 2 W. 
 Eob. 91 ; Bee, 90. 
 
 The place. In England, it has been held 
 that the services must be rendered on the high 
 seas, or, at least, extra corpus comitatus, in 
 order to give the admiralty court jurisdiction 
 to decree salvage ; but in this country it is 
 held that the district courts of the United 
 States have jurisdiction to decree salvage for 
 services rendered on tide waters and on the 
 lakes or rivers where inter-state or foreign 
 commerce is carried on, although infra cor- 
 pus comitatus; 12 How. 466; 1 Blatchf. 420; 
 5 Mclican, 359. 
 
 The amount. Some foreign states have 
 fixed by law the amount or proportion to be 
 paid for salvage services ; but in England and 
 the United States no such rule has been es- 
 tablished. In these countries the amount 
 rests in the sound discretion of the court 
 awarding the salvage, upon a full considera- 
 tion of all the facts of the case. It generally 
 far exceeds a mere remuneration pro opere et 
 labore, the excess being intended, upon prin- 
 ciples of sound policy, not only as a reward 
 to the particular salvor, but also as an induce- 
 ment to others to render like services ; 2 Cra. 
 240; 1 C. Eob. 312, n. ; 3 id. 355 ; 3 Hagg. 
 Adm. 95. But it is equally the policy of the law 
 not to provoke the salvor's appetite of avarice, 
 nor encourage his exorbitant demands, nor 
 teach him to stand ready to devour what the 
 ocean has spared; Gilp. 75. Adequate re- 
 wards encourage the tendering and accept- 
 ance of salvage services; exorbitant de- 
 mands discourage their acceptance and tend 
 to augment the risk and loss of vessels in dis- 
 tress. 7 Notes of Cas. 579. The amount is 
 determined by a consideration of the peril to 
 which the property was exposed, the value 
 oo_»j jyjg j,jg]^ jij jj^g gj, property incurred 
 
 saved. 
 
 by the salvors, their skill, the extent of labor 
 Vol. II.— 39 
 
 or time employed, and the extent of the 
 necessity that may exist in any particular 
 locality to encourage salvage services ; 3 
 Hagg. Adm. 121; 1 Gall. 133; 1 Sumn. 
 413; 2 Sprague, 102. An ancient rule of the 
 admiralty allowed the salvors one-half of the 
 property saved, when it was absolutely dere- 
 lict or abandoned ; but that rule has been 
 latterly distinctly repudiated by the high 
 court of admiralty and our supreme court, 
 and the reward in cases of derelict is now 
 governed by the same principles as in other 
 salvage cases ; 20 E. L. & E. 607 ; 4 Notes 
 of Cas. 144; 19 How. 161. Risking life to 
 save the lives of others is an ingredient in 
 salvage service which will enhance the salvage 
 upon the property saved; Daveis, 61 ; 3 Hagg. 
 Eccl. 84. But no salvage is due for saving 
 life merely, unaccompanied by any saving of 
 property ; 1 W. Rob. 330 ; unless it be the 
 life of a slave ; Bee, 226, 260. If one per- 
 son saves property and another life, the latter 
 is entitled to share in the salvage on the prop- 
 erty saved ; 6 N. Y. Leg. Obs. 
 
 The property saved. Salvage is properly 
 a charge apportionable upon all the interests 
 and property at risk in the voyage which de- 
 rive any benefit from the salvage service ; 1 
 Stor. 469. Qui sentit commodum sentire 
 debet et onus. It follows that salvage ex- 
 penses incurred in saving ship, cargo, and 
 freight in one common and continuous ser- 
 vice are apportionable upon them all, accord- 
 ing to their respective values ; but expenses 
 incurred for any one interest separately, or 
 any two interests only, are chargeable wholly 
 to it or to them; 2 W. Rob. 315; 7 E. &B. 
 523; 2 Pick. 1; 11 id. 90; 4 Whart. 301; 
 5 Du. N. Y. 310. Goods of the govern- 
 ment pay the same rate as if owned by 
 individuals ; 3 Sumn. 308 ; 3 Hagg. Eccl. 
 246 ; Edw. Adm. 79 ; but not the mails ; 
 Marv. Salv. 132 ; nor can vessels of war 
 belonging to a foreign neutral power be 
 arrested in our ports for salvage; 7 Cra. 
 116; 2 Dods. 451. Salvage is not allowed on 
 the clothing left by the master and crew on 
 board the vessel which they abandon, but this 
 should be returned free of charge; Ware, 
 378 ; or for saving from a vfreck bills of ex- 
 change or, other evidences of debt, or docu- 
 ments of title ; Daveis, 20. 
 
 Bar to salvage claim. An express explicit 
 agreement, in distinct terms, to pay at all 
 events, whether the property shall be saved 
 or not, a sum certain, or a reasonable sum, 
 for work, labor, and the hire of a vessel in 
 attempting to save the property, is inconsis- 
 tent with a claim for salvage ; and when such 
 agreement is pleaded in bar and proved, any 
 claim for salvage will be disallowed ; 2 Curt. 
 C. C. 350 ; 2 W. Rob. 177. An agreement 
 fairly made and fully understood by the sal- 
 vors, to perform a salvage service for a stipu- 
 lated sum or proportion, to be paid in the 
 event of a succesful saving, does not alter the 
 nature of the service as a salvage service, but 
 fixes the amount of compensation. But such 
 
SALVAGE 
 
 610 
 
 SALVOR 
 
 an agreement will not be binding upon the 
 master or owner of the property unless the 
 court can clearly see that no advantage has 
 been taken of the party's situation, and that 
 the rate of compensation agreed upon is just 
 and reasonable ; 1 Stor. 323 ; 1 Sumn. 207 ; 
 
 1 Blackf. 414; 19 How. 160. A custom in 
 any particular trade that vessels shall assist 
 each other without claiming salvage is legal, 
 and a- bar to a demand for salvage in all 
 cases where it properly applies ; 1 W. Rob. 
 440. 
 
 Forfeiture or denial of salvage. Em- 
 bezzlement of any of the goods saved works 
 a forfeiture of the salvage of the guilty party ; 
 Ware, 380 ; 1 Sumn. 328 ; and, in general, 
 fraud, negligence, or carelessness in saving or 
 preserving the property, or any gross miscon- 
 duct on the part of the salvors in connection 
 with the property saved, will work a total for- 
 feiture of the salvage or a diminution of the 
 amount; 2 Cra. 240 ; 1 W. Rob. 497 ; 3 id. 
 122; 2 JE. L. & E. 554; 6 Wheat. 152; 6 
 Wall. 548. 
 
 Distribution. The distribution of salvage 
 among the salvors, like the amount, rests in 
 the sound discretion of the court. In general, 
 all persons, not under a pre-existing obliga- 
 tion of duty to render assistance, who have 
 contributed by their exertions to save the 
 property, and who have not forfeited their 
 rights by their misconduct, are entitled to 
 share in the salvage, as well those who re- 
 main on board the salvor vessel in the dis- 
 charge of their duty, but are ready and wil- 
 ling to engage in the, salvage enterprise, as 
 those who go on board and navigate the wreck ; 
 Ware, 483; 2 Dods. 132 ; 2 W. Rob. 115 ; 
 
 2 Cra. 240. The apportionment between the 
 owners and crew of the salvor ship depends 
 upon the peculiar circumstances of each case : 
 such as, the character, size, value, and deten- 
 tion of the vessel, its exposure to peril, and 
 like considerations, and the number, labor, 
 exposure, and hazard of the crew. In ordi- 
 nary cases, the more usual proportion allowed 
 the owners of a salvor sail- vessel is one-third ; 
 2 Cra. 240; 1 Sumn. 425; 3 id. 579. The 
 owner of a steam-vessel, if of considerable 
 value, is often allowed a larger proportion ; 
 Marv. Wreck & Salv. 247. The master's 
 share is usually double that of the mate, and 
 the mate's double that of a seaman, and the 
 share of those who navigate the derelict into 
 port, or do the labor, double that of those 
 who remain on board the salvor vessel. But 
 these proportions are often varied according 
 to the circumstances, so as to reward superior 
 zeal and energy and discourage indifference 
 and selfishness; 3 Hagg. Adm. 121. See 
 generally, Abbott, Mer. Shipp. 536. 
 
 In marine insurance, the salvage is to be 
 accounted for by the assured to underwriters 
 in an adjustment of a total or salvage loss, or 
 assigned to the underwriters by abandonment 
 or otherwise ; 2 Phill. Ins. § 1726. And so, 
 also, the remnant of the subject insured or of 
 the subject pledged in bottomry, and (if there 
 
 be such) in that of a fire insurance, and of 
 the interest in the life of a debtor (if so 
 stipulated in this case), is to be brought into 
 the settlement for the loss in like manner • 9 
 Dutch. 541; 15 Ohio, 81; 2 N. Y. 285- 4 
 La. 289 ; 2 Sumn. 167. See next titles. ' 
 
 SALVAGE CHARGES. In Insurance. 
 
 All those costs, expenses, and charges netea- 
 sarily incurred in and about the saving and 
 preservation of the property imperilled, and 
 which, if the property be insured, are event- 
 ually borne by the underwriters. Stevens 
 Av. c. 2, § 1. ' 
 
 SALVAGE LOSS. That kind of loss 
 which it is presumed would, but for certain 
 services rendered and exertions made, have 
 befome a total loss. It also means, among 
 underwriters and average-adjusters, a mode of 
 settling a loss, under a policy, in cases where 
 the goods have been necessarily sold at a port 
 short of the port of destination, in conse- 
 quence of the perils insured against. In such 
 cases, though the property be not abandoned 
 to the underwriter, the principle of abandon, 
 ment is assumed in the adjustment of the 
 loss. The underwriter pays a total loss. The 
 net proceeds of the sale of the goods, after 
 deducting all the expenses, are retained by 
 the assured, and he credits the underwriter 
 with the amount ; 2 Phill. Ins. § 1480. 
 
 SALVOR. In Maritime Law. A per- 
 son who saves property or rescues it from im- 
 pending peril on the sea or when wrecked on 
 the coast of the sea, or, in the United States, 
 on a public navigable river or lake where 
 inter-state commerce is carried on, and who is 
 under no pre-existing contract or obligation 
 of duty by his relation to the property to ren- 
 der such services. 1 Bagg. Adm. 236; 1 
 Curt. C. C. 378. 
 
 In general the crew cannot claim as salvors 
 of their own ship or cargo, they being under 
 a pre-existing obligation of duty to be vigilant 
 to avoid the danger, and when in it to exert 
 themselves to rescue or save the property, in 
 consideration of their wages merely ; 1 Hag^. 
 Adm. 236 ; 2 Mas. C. C. 319. But if their 
 connection with the ship be dissolved, as by 
 a capture, or the ship or cargo be voluntarily 
 abandoned by order of the master, sine spe 
 revertendi aut recuperandi, such abandon- 
 ment taking place bona fidee and without 
 coercion on their part, and for the purpose of 
 saving life, their contract is put an end to, 
 and they may subsequently become salvors; 
 16 Jur. 572; 3 Sumn. 270; 2 Cra. 240; 
 Daveis, 121. A passenger; 2 HagE- Adm. 
 3, n. ; a B.. & P. 612, n. ; 1 W. N.C. (Pa.) 
 iv. ; a pilot; 10 Pet. 108; Gilp. 6S; Lloyd's 
 agent; 3 W. Bob. 181; official persons; 3 
 Wash. C. C. 567 ; 1 C. Kob. 46 ; officers 
 and crews of naval vessels ; 2 Wall. Jr. 6! ; 
 1 Hagg. Adm. 158; 15 Pet. 518; may »" 
 become salvors, and, as such, be entitled to 
 salvage for performing services in saving pro- 
 perty, when such services are not within or 
 exceed the line of their proper official duties. 
 
SAMPLE 
 
 611 
 
 SANG, SAWC 
 
 The finders of a derelict (that is, a ship or 
 goods at sea abandoned by the master and 
 crew without the hope or intention of return- 
 ing and resuming the possession) who take 
 actual possession with an intention and with 
 the means of saving it, acquire a right of pos- 
 session which they can maintain against all 
 the world, even the true owner, and become 
 bound to preserve the property with good 
 faith and bring it to a place of safety for the 
 owner's use. They are not bound to part 
 with the possession until their salvage is paid, 
 or the property is taken into the custody of the 
 law preparatory to the amount of salvage 
 being legally ascertained ; Daveis, 20 ; 01c. 
 462 ; Ware, 339. If they cannot with their 
 own force convey the property to a place of 
 safety without imminent risk of a total or ma- 
 terial loss, they cannot, consistently with 
 their obligations to the owner, refuse the 
 assistance of other persons proffering their 
 aid, nor exclude them from rendering it under 
 the pretext that they are the finders and have 
 thus gained the right to the exclusive posses- 
 sion. But if third persons unjustifiably in- 
 trade themselves, their services will enure to 
 the benefit of the original salvors ; 1 Dods. 
 414; 3 Hagg. Adm. 156; 01c. 77. 
 
 ff a first set of salvors fall into distress, 
 and are assisted by a second or third set, the 
 first or second do not lose their claim to sal- 
 vage, unless they voluntarily and without 
 fraud or coercion abandon the enterprise, but 
 they all share together according to their re- 
 spective merits ; 1 Sumn. 400 ; 1 W. Rob. 
 406 ; 2 id. 70. In cases of ships stranded or 
 in distress, not derelicts, salvors do not ac- 
 quire an exclusive possession as against the 
 owner, the master, or his agent. While the 
 master continues on board, he is entitled to 
 retain the command and control of the ship 
 and cargo and to direct the labor. The sal- 
 vors are assistants and laborers under him ; 
 and they have no right to prevent other per- 
 sons from rendering assistance, if the master 
 wishes such aid ; 3 Hagg. Adm. 383 ; 2 W. 
 Eob. 307; 2 E. L. & E. 551. When the 
 ship has been relieved from its peril, salvors 
 forfeit no right and impair no remedy by leav- 
 ing the ship; 1 Hagg. Adm. 156; 1 Newb. 
 275. Their remedy to recover salvage is by 
 libel or suit in the district court of the United 
 States, sitting as a court of admiralty. 
 
 SAMPLE. A small quantity of any com- 
 modity or merchandise, exhibited as a speci- 
 men of a larger quantity, called the bulk. 
 
 When a sale is made by sample, the vendor 
 warrants the quality of the bulk to be equal 
 to that of the sample ; Benj. Sales, § 648 ; 
 and if it afterwards turn out that the bulk does 
 not correspond with the sample, the pur- 
 chaser is not, in general, bound to take the 
 property on a compensation being made to 
 him for the difference; 1 Camp. 113. See 
 4Camp. 22; 5 Johns. 395; 13 Mass. 139; 3 
 Kawle, 37 ; 14 M. & W. 651. 
 
 To constitute a sale by " sample," the con- 
 tract must be made solely with reference to 
 
 the sample; 13 Mass. 139; 40 N. Y. 113. 
 In Pennsylvania it has been held that in the 
 absence, of fraud or representation as to the 
 quality, a sale by sample is not in itself a war- 
 ranty of the quality of the goods, but simply 
 a guaranty that the goods shall be similar in 
 kind and merchantable ; 83 Penn. 319. But 
 although goods sold by sample are not in 
 general deemed to be sold with an implied war- 
 ranty that they were merchantable, the facts 
 and circumstances may justify the inference 
 that this implied warranty is superadded to the 
 contract ; L. R. 4 Ex. 49. If a manufacturer 
 agrees to furnish goods according to sample, 
 the sample is to be considered as if free from 
 any secret defect of manufacture not discov- 
 erable on inspection, and unknown to both 
 parties ; L. R. 7 C. P. 438 ; but if the 
 sale is made by a merchant, who is not a 
 manufacturer, there is no implied warranty 
 against secret defects ; 7 Allen, 29. It is an 
 implied condition in a sale by sample that 
 the buyer shall have a fair opportunity of com- 
 paring the bulk with the sample, and an im- 
 proper refusal by the vendor to allow this will 
 justify the buyer in rejecting the contract ; 1 
 B. & C. 1 ; see Benj. Sales, Bennett's edition, 
 §649. 
 
 SANCTION. That part of a law which 
 inflicts a penalty for its violation or bestows a 
 reward for its observance. Sanctions are of 
 two kinds, — those which redress civil injuries, 
 called civil sanctions, and those which punish 
 crimes, called penal sanctions. 1 Hoffm. Leg. 
 Outl. 279 ; Ruth. Inst. b. 2, c. 6, s. 6 ; 
 TouU. tit.'pr^l. 86 ; 1 Bla. Com. 56. 
 
 SANCTUARY. A place of refuge, 
 where the process of the law cannot be exe- 
 cuted. 
 
 Sanctuaries may be divided into religious 
 and civil. The former were very common in 
 Europe, — religious houses affording protec- 
 tion from arrest to all persons, whether ac- 
 cused of crime or pursued for debt. This 
 kind was never known in the United States, 
 and was abolished in England by statute 21 
 Jac. I. c. 28. 
 
 Civil sanctuary, or that protection which is 
 afforded to a man by his own house, was al- 
 ways respected in this country. 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 takes refuge in 
 his own house. See Door ; House ; Ar- 
 rest. 
 
 No place affords protection from arrest in 
 criminal cases : a man may, therefore, be ar- 
 rested in his own house in such cases, and the 
 doors may be broken for the purpose of 
 making the arrest. See Arrest. 
 
 SANE MEMORY. That understanding 
 which enables a man to make contracts and 
 his will, and to perform such other acts as are 
 authorized by law. See Lunacy ; Memory ; 
 NoN Compos Mentis. 
 
 SANG, SANC. Blood. These words 
 are nearly obsolete. 
 
SANITY 
 
 612 
 
 SCANDALOUS MATTER 
 
 SANITT. The state of a person who 
 has a sound understanding; the reverse of 
 insanity. 
 
 The sanity of an individual is always pre- 
 sumed; 5 Johns. 144; 1 Pet. 163; 1 Hen. 
 & M. 476 ; 4 Wash. C. C. 262. See In- 
 sanity. 
 
 SANS CEO QUE. The same as Absque 
 hoc, which see. 
 
 SANS NOMBRE (Fr. without number). 
 
 In English Law. A term used in relation 
 to the right of putting animals on a common. 
 The term common sons nombre does not mean 
 that the beasts are to be innumerable, but only 
 indefinite, not certain ; Willes, 227 ; but they 
 are limited to the commoner's own common- 
 able cattle, levant et couchant, upon his lands, 
 or as many cattle as the land of the com- 
 moner can keep and maintain in winter ; 6 
 Term, 48 ; 1 Wms. Saund. 28, n. 4. 
 
 SANS RECOURS (Fr. without re- 
 course). Words which are sometimes added 
 to an indorsement by the indorsee to avoid 
 incurring any liability. 7 Taunt. 160 ; 3 
 Cra. 193 ; 7 id. 159 ; 12 Mass. 172 ; 14 S. & 
 K. 825. See Indorsement. 
 
 SATISDATIO (Lat. satis, and dare). 
 In Civil Law. Security given by a party to 
 an action to pay what might be adjudged 
 against him. It is a satisfactory security in 
 opposition to a nalied security or promise. 
 Vicat, Voc. Jur. ; 3 Bla. Com. 291. 
 
 SATISFACTION (Lat. satis, enough, 
 facio, to do, to make). In Fraietice. An 
 entry made on the record, by which a party 
 in whose favor a judgment was rendered de- 
 clares that he has been satisfied and paid. 
 
 In Alabama, Delaware, Illinois, Indiana, 
 Massachusetts, Pennsylvania, Rhode Island, 
 South Carolina, and Vermont, provision is 
 made by statute, requiring the mortgagee to 
 discharge a mortgage upon the record, by en- 
 tering satisfaction in the margin, or by sepa- 
 rate instrument, to be recorded on the margin. 
 The refusal or neglect to enter satisfaction 
 after payment and demand renders the mort- 
 
 fagee liable to an action after the time given 
 im by the respective statutes for doing the 
 same has elapsed, and subjects him to the 
 payment ot damages, and, in some cases, 
 treble costs. In Indiana and New York, the 
 register or recorder of deeds may himself dis- 
 charge the mortgage upon the record on the 
 exhibition of a certificate of payment and 
 satisfaction signed by the mortgagee or his 
 representatives, and attached to vne mortgage, 
 which shall be recorded. 2 Ind. Stat. § 634, 
 March 9, 1861 ; N. Y. Rev. Stat. p. 2262, 
 L. 1879, cb. 171. 
 
 In Equity. The donation of a thing, with 
 the, intention, expressed or implied, that such 
 donation is to be an extinguishment of some 
 existing right or claim in the donee. See 
 Legacy ; Cumulative Legacy. 
 
 SATISFACTION PIECE. In English 
 Practice. An instrument of writing in 
 
 which it is declared that satisfaction is ac- 
 knowledged between the plaintifi' and defend- 
 ant. It 13 signed by the attorney, and on its 
 production and the warrant of attorney to 
 the clerk of the judgments, satisfaction is 
 entered on payment of certain fees. Lee 
 Diet, of Pract. Satisfaction. 
 
 SATISFACTORY EVIDENCE. That 
 which is sufficient to induce a belief that the 
 thing is true ; in other words, it is credible 
 evidence. 3 Bouvier, Inst. n. 3049, 
 
 SATISFIED TERMS ACT. The stat. 
 8 & 9 Vict. c. 112, passed to abolish satisfied 
 outstanding terms of years in land. By this 
 act, terms which shall henceforth become 
 attendant upon t^e inheritance, either by 
 express declaration or construction of law, 
 are to cease and determine. This, in efiect, 
 abolishes outstanding terms ; 1 Steph. Com. 
 380-382 ; Wms. R. P. pt. iv. c. 1 : Moz. 
 &W. 
 
 SAVINGS BANK. An institution in 
 the nature of a bank, formed or established 
 for the purpose of receiving deposils of 
 money, for the benefit of the persons de- 
 positing, to accumulate the produce of so 
 much thereof as shall not be required by the 
 depositors, their executors or administrators, 
 at compound interest, and to return the whole 
 or any part of such deposit, and the produce 
 thereof to the depositors, their executors or 
 administrators, deducting out of such pro- 
 duce so much as shall be required for the 
 necessary expenses attending the management 
 of such institution, but deriving no benefit 
 whatever from any such deposit or the pro- 
 duce thereof. Grant, 'Bank. 571. 
 
 In the United States, these institutions are 
 regulated by the statutes of each state* limit- 
 ing the surplus fund, the amount of. interest 
 to be paid, and the division of the profits. 
 
 SAXON LAGE. The laws of the West 
 Saxons. Cowel. 
 
 SAY ABOCTT. Words frequently used 
 in contracts to indicate an uncertain quantity. 
 They have been said to mark emphaticall/ 
 the vendor's purpose to guard himself against 
 being supposed to have made an absolute 
 pr6mise as to "quantity; 21 W. R. 609. 
 There a sale of all the spars manufactured, 
 say about 600," was held to becomphedw^n 
 by a tender of 496 spars. See 2 B. & 13. 
 106; 5 Gray, 589 ; 8 Pet. 181. 
 
 SCANDAL. A scandalous verbal report 
 or rumor respecting some person. 
 
 SCANDALOUS MATTER. In Equity 
 Pleading. Unnecessary matter criminatory 
 of the defendant or any other person, alleged 
 in the bill, answer, or other pleading, or in 
 the interrogatories to or answers by witnesses. 
 Adams, Eq. 806. Matter which is relevant 
 can never oe scandalous ; Story, Bq. Ph 8 
 270 ; 15 Ves. 477 ; and the degree of rele- 
 vancy is of no account in determining *'"' 
 question; Cooper, Eq. PL 19; 2 Ves. 24; 
 6 id. 614 ; 11 id. 256 ; 15 id. 477. Wheiv 
 
SCANDALUM MAGNATUM 
 
 613 
 
 SCILICET 
 
 scandal is alleged, whether in the bill ; 2 Ves. 
 631; answer; Mitf. Eq. PI. 313; or inter- 
 rogatories to or answer of witnesses ; 2 Y. & 
 C. 445 ; it will be referred to a master at any 
 time; 2 Ves. 631 ; and, by leave of court, 
 even upon the application of a stranger to the 
 suit; 6 Ves. 514; 5 Beav. 82; and matter 
 found to be scandalous by him will be ex- 
 punged; Story, Eq. PI. §§ 266, 862; 4 
 Hen. & M. 414; at the cost of counsel intro- 
 ducing it, in some cases ; Story, Eq. PI. § 
 266. The presence of scandalous matter in 
 the hill is no excuse for its being in the 
 answer; 19 Me. 214. 
 
 SCANDALUM MAGNATUM (L. Lat. 
 slander of great men). Words spoken in 
 derogation of a peer, a judge, or other great 
 officer of the realm. 1 Ventr. 60. This 
 was distinct from mere slander in the earlier 
 law, and was considered a more heinous 
 offence. Bull. N. P. 4. See 3 Bla. Com. 
 124. 
 
 SCHEDULE. In Practice. When an 
 indictment is returned from an inferior court 
 in obedience to a writ of certiorari, the state- 
 ment of the previous proceedings sent with it 
 is termed the schedule. 1 Saund. 309 a, 
 II. 2. 
 
 Schedules are also frequently annexed to 
 answers in a court of equity, and to deposi- 
 tions and other documents, in order to show 
 more in detail the matter they contain than 
 could otherwise be conveniently shown. 
 
 The term is frequently used instead of in- 
 ventory. 
 
 SCHOOL. An institution of learning of 
 a lower grade, below a college or a univer- 
 sity. A place of primary instruction. Web- 
 ster, Diet. As used in the American reports, 
 the term generally refers to the common or 
 public schools existing under the laws of each 
 state and maintained at the expense of the 
 public. 
 
 When the legislature has placed the man- 
 agement of pumie schools under the exclusiye 
 control of directors, trustees, and boards of 
 education, the courts have no rightful autho- 
 rity to interfere by directing what instruction 
 shall be given, or what books shall be used 
 therein; 23 Ohio St. 211 ; s. c. 13 Am. Rep. 
 233. A statute establishing separate systems 
 of schools for white and colored children is 
 not in violation of the fourteenth amendment 
 of the constitution of the United States. And 
 where appropriate schools for colored children 
 are maintained, such children may be lawfully 
 excluded from schools established for white 
 children; 48 Cal. 36; s. c. 17 Am. Rfep. 
 405; 48 Ind. 327; s. c. 17 Am. Rep. 738. 
 But a mandamus will lie compelling trustees 
 to admit colored children to public schools 
 where separate schools are not provided for 
 them; 7 Nev. 342; s. C. 8 Am. Rep. 713. 
 
 SCHOOLMASTER. One employed in 
 teaching a school. 
 
 A schoolmaster stands in loco parentis in 
 relation to the pupib committed to his charge, 
 
 while they are under his care, so far as to en- 
 force obedience to his commands lawfully 
 given in his capacity as schoolmaster, and he 
 may, therefore, enforce them by moderate 
 correction ; Comyns, Dig. Pleader (3 M. 
 19) ; Hawk. PI. Cr. c. 60, sect. 23 ; 4 Gray, 
 36 ; 45 Iowa, 248 ; 8. c. 24 Am. Rep. 769. 
 See Correction. 
 
 The schoolmaster is entitled to be paid for 
 his services, by those who employ him. See 
 1 Bingh. 357 ; 8 J. B. Moore, 368. His 
 duties are to teach his pupils what he has un- 
 dertaken, and to have a special care over 
 their morals. See 1 Stark. 421 ; Assault. 
 The salary of a public school teacher is not 
 attachable by trustee powers while in the 
 hands of citj' officials whose duty it is to pay 
 it ; 54 Ga. 21 ; s. c. 21 Am. Rep. 273. 
 
 SCIENDUM (L. Lat. ) . In English Law. 
 The name given to a clause inserted in the 
 record by which it is made ' ' known that the 
 justice here in court, in this same term, de- 
 livered a writ thereupon to the deputy sheriff 
 of the county aforesaid, to be executed in due 
 form of law." Lee, Diet. Record. 
 
 SCIENTER (L. Lat. knowingly). The 
 allegation of knowledge on the part of a 
 defendant or person accused, which is neces- 
 sary to charge upon him the consequence of 
 the crime or tort. 
 
 A man may do many acts which are justifi- 
 able or not, as he is ignorant or not ignorant 
 of certain facts. He may pass a counterfeit 
 coin, when he is ignorant of its being coun- 
 terfeit, and is guilty of no offence ; but if he 
 knew the coin to be counterfeit, which is 
 called the scienter, he is guilty of passing 
 counterfeit money. 
 
 SCILICET (Lat. scire, to know, licet, it 
 is permitted : you may know : translated by 
 to wit, in its old sense of to know). That is 
 to say ; to wit ; namely. 
 
 It is a clause to usher in the sentence of 
 another, to particularize that which was too 
 general before, distribute what was too gross, 
 or to explain what was doubtful and obscure. 
 It neither increases nor diminishes the pre- 
 mises or habendum, for it gives nothing of 
 itself; it may make a restriction when the 
 preceding words maj' be restrained ; Hob. 
 171; 1 P. Wms. C. 18; Co. Litt. 180 b. 
 note 1. 
 
 When the scilicet is repugnant to the pre- 
 cedent matter, it is void : for example, when 
 a declaration in trover states that the plaintiiF 
 on the third day of May was possessed of cer- 
 tain goods which on the fourth day of May 
 came to the defendant's hands, who after- 
 ward, to wit, on the _first day of May, con- 
 verted them, the scilicet was rejected as sur- 
 plusage ; Cro. Jac. 428. And see 6 Binn. 15 ; 
 3 Saund. 291, note 1. 
 
 Stating material and traversable matter 
 under a scilicet wiU not avoid the conse- 
 quences of a variance; 1 M'Cl. & Y. 277; 
 2 B. & P. 170, n. 2 ; 4 Johns. 460 ; 2 Pick. 
 223 ; nor will the mere omission of a scilicet 
 
SCINTILLA OF EVIDENCE 
 
 614 
 
 SCIRE FACIAS 
 
 render immaterial matter material ; 2 Saund. 
 206 a; even in a criminal proceeding; 2 
 Camp. 307. n. See 3 Term, 68 ; 3 Maule & 
 S. 173. 
 
 SCINTILLA OP EVIDENCE. The 
 
 doctrine that where there is any evidence, 
 however slight, tending to support a ma- 
 terial issue, the case must go to the jury, 
 since they are the exclusive judges of the 
 weight of the evidence. 43 Ga. 323 ; 106 
 Mass. 271 ; 40 Mo. 151. In the United 
 States courts, it has been decided that the 
 more reasonable rule is, " that before the 
 evidence is left to the jury, there is, or may 
 be, in every case, a preliminary question for 
 the judge, not whether there is literally no 
 evidence, but whether there is any upon 
 which a jury can properly proceed to find a 
 verdict for the party producing it, upon whom 
 the burden of proof is imposed;" 94 U. S. 
 278; 11 How. 373; 9 Wall. 197; 10 id. 
 604. A similar doctrine prevails in England, 
 where it is now settled that the question for 
 the judge is, whether there is any evidence 
 that might reasonably and properly satisfy 
 the jury that the fact sought to be proved is 
 established; 13 C. B. 916; 3 C. B. n. s. 
 150. 
 
 The old rule is likewise exploded in several 
 of the states, whose courts are now in the con- 
 stant hsbit of ordering nonsuits against the 
 complaint of the plaintiflf; 49 N. J. 671 ; 58 
 Me. 384 ; of giving peremptory instructions 
 to the jury to find for one party or the other ; 
 71 N. C. 461 ; 15 Kan. 244; or of sustaining 
 demurrers to the evidence, in cases where 
 there is confessedly some evidence supporting 
 a material issue. This is done under the guise 
 of various expressions, which seem to leave 
 the ancient prerogative of the jury intact. 
 In Maryland, and perhaps other states, the 
 judge achieves this result by determining the 
 legal sufiiciency of the evidence ; 7 Gill & 
 J. 20 ; and in Missouri by determining its 
 legal efiect ; 9 Mo. 113. See 1 Jones & Sp. 
 128; 45 How. Pr. 48. See Thompson on 
 Charging the Jury, § 30. 
 
 SCINTILLA JURIS (Lat. a spark of 
 law or right). A legal fiction resorted to for 
 the purpose of enabling feoffctes to uses to sup- 
 port contingent uses when they come into ex- 
 istence, thereby to enable the Statute of Uses, 
 27 Hen. "VIIL, to execute them. For exam- 
 ple, a shifting use : a grant to A and his heirs 
 to the use of B and his heirs, until C perform 
 an act, and then to the use of C and his 
 heirs. Here the statute executes the use in 
 B, which, being coextensive with A's seisin, 
 leaves no actual seisin in A. When, how- 
 ever, C performs the act, B's use ceases, and 
 C's springs up, and he enjoys the fee-simple ; 
 upon which the question arises, out of what 
 seisin C's use is served. It is said to be 
 served out of A's original seisin ; for upon 
 the cessor of B's use it is contended that the 
 original seisin reverted to A for the purpose 
 of serving C's use, and is a possibility of sei- 
 
 sin, or scintilla juris. See 4 Kent, 238, and 
 the authorities there cited, for the learnine 
 upon this subject ; Burton, R. P. 43 ; ^y* 
 son, Springing Uses, 59 ; Washb. R. P. 
 
 SCIRE FACIAS (Lat. that you make 
 known). The name of a writ (and of the 
 whole proceeding) founded on some public 
 record. 
 
 Public records, to which the writ is ap- 
 plicable, are of two classes, judicial andnon- 
 judicial. 
 
 Judicial records are of two kinds, judo'- 
 ments in former suits, and recognizances 
 which are of the nature of judgments. When 
 founded on a judgment, the purpose of the 
 writ is either to revive the judgment, which 
 because of lapse of time— a year and a day at 
 common law, but now varied by statutes— is 
 presumed in law to be executed or released, 
 and therefore execution on it is not .allowed 
 without giving notice, by scire facias, to the 
 defendant to come in, and show if he can, by 
 release^ or otherwise, why execution ought 
 not to issue ; or to make a person, who derives 
 a benefit by or becomes chargeable to the 
 execution, a party to the judgment, who was 
 not a party to the original suit. In both of 
 these classes of cases, the purpose of the writ 
 is merely to continue a former suit to execu- 
 tion. When the writ is founded on a recog- 
 nizance, its purpose is, as in cases of judg- 
 ment, to have execution; and though it is 
 not a continuation of a former suit, as in the 
 case of judgments, yet, not being the com- 
 mencement and foundation of an action, it is 
 not an original, but a judicial, writ, and at 
 most is only in the nature of an original 
 action. When founded on a judicial record, 
 the writ must issue out of the court where the 
 judgment was given or recognizance entered 
 of record, if the judgment or recognizance 
 remains there, or if they are removed cut of 
 the court where thoy are; 3 Bla. Com. 416, 
 421 ; 3 Gill & J. 359 ; 2 Wms. Saund. 71, 
 notes. 
 
 Non-judicial records are letters patent and 
 corporate charters. The writ, when founded 
 on a non-judicial record, is the commence- 
 ment and foundation of an original action ; 
 and its purpose is Wways to repeal or forfeit 
 the record. Quo warranto is the usual and 
 more appropriate remedy to forfeit corporate 
 charters and offices ; and scire facias, though 
 used for that purpose, is more especially ap- 
 plicable to the repeal of letters patent. 
 When the crown is deceived by a false sugges- 
 tion, or when it has granted any thing which 
 by law it cannot grant, or where the holder of 
 a patent office has committed a cause of for- 
 feiture, and other like cases, the crown may 
 by its prerogative repeal by scire facias its 
 own grant. And where by several letters 
 patent the selfsame thing has been granted to 
 several persons, the first patentee is of right 
 permitted, in the name and at the suit of tne 
 crown by scire facias, to repeal the subse- 
 quent letters patent ; and so, in any case of 
 the gi-ant of a patent which is injurious to an- 
 
SCIRE FACIAS 
 
 615 
 
 SCIEE FIERI INQUIRY 
 
 other, the injured party is permitted to use 
 the name of the crown in a suit by scire 
 facias for the repeal of the grant. This 
 privilege of suing in the name of the crown 
 for the repeal of the patent is granted to pre- 
 vent multiplicity of suits ; 2 Wms. Saund. 
 72, notes. A state may by scire facias re- 
 peal a patent of land fraudulently obtained ; 
 1 H. & M'H. 162. 
 
 Scire facias is also used by government as 
 a mode to ascertain and enforce the forfeiture 
 of a corporate charter, where there is a legal 
 existing body capable of acting, but who have 
 abused their power ; it cannot, like quo war- 
 ranto (which is applicable to all cases of for- 
 feiture), be applied where there is a l^dy 
 corporate de facto only, who take upon 
 themselves to act, but cannot legally exercise 
 theu' powers. In scire facias to forfeit a 
 corporate charter, the government must be a 
 party to the suit ; for the judgment is that 
 the parties be ousted and the franchises be 
 seized into the hands of the government ; 2 
 Kent, 313 ; 10 B. & C. 240 5 Mass. 230 ; 
 16 S. & R. 140 ; 4 Gill & J. 1 ; 9 id. 365 ; 
 4 Gill, 404. See Quo Warranto. 
 
 Scire facias is also used to suggest further 
 breaches on a bond with a condition, where a 
 judgment has been obtained for some but not 
 all of the breaches and to recover further in- 
 stalments where a judgment has been ob- 
 tained for the penalty before all the instal- 
 ments are due ; 1 Wms. Saund. 5B, n. 1 ; 4 
 Md. 375. 
 
 By statute, in Pennsylvania, scire facias 
 is the method of proceeding upon a mortgage. 
 
 The pleadings in scire facias are peculiar. 
 The writ recites the judgment or other record, 
 and also the suggestions which the plaintiii 
 must make to the court to entitle him to the 
 proceeding by scire facias. The writ, there- 
 fore, presents the plaintiffs whole case, and 
 constitutes the declaration, to which the de- 
 fendant must plead ; 1 Blackf. 297. And 
 when the proceeding is used to forfeit a cor- 
 porate charter, all the causes of forfeiture 
 must be assigned in distinct breaches in the 
 writ, as on a bond with a condition is done in 
 the declaration or replication. And the de- 
 fendant must either disclaim the charter or 
 deny its existence, or deny the facts alleged 
 as breaches, or demur to them. The sug- 
 gestions in the writ, disclosing the 
 foundation of the plaintiff's case, must also be 
 traversed if they are to be avoided. The scire 
 facias is founded partly upon them and partly 
 upon the record ; 2 Inst. 470, 679. They 
 are substantive facts, and can be traversed by 
 distinct pleas embracing them alone, just as 
 any other fundamental allegation can be 
 traversed alone. All the pleadings after the 
 writ or declaration are in the ordinary forms. 
 There are no pleadings in scire facias to for- 
 feit a corporate charter to be found in the 
 books, as the proceeding has been seldom 
 used. There is a case in 1 P. Wms. 207, but 
 no pleadings. There is a case also in 9 Gill, 
 379, with a synopsis of the pleadings. Per- 
 
 haps the only other case is in Vermont ; and 
 it is without pleadings. A defendant cannot 
 plead more than one plea to a scire facias 
 to forfeit a corporate charter : the statutes of 
 4 & 5 Anne, ch. 16, and 9 Anne, ch. 20, al- 
 lowing double pleas, do not extend to the 
 crown; 1 Chitty, PI. 479; 1 P. Wms. 220. 
 
 SCIRE FACIAS AD AUDIENDUM 
 ERRORIiS (Lat.). The name of a writ 
 which is sued out after the plaintifi' in error 
 has assigned his errors. Fitzh. N. B. 20 ; 
 Bacon, Abr. Error (F). 
 
 SCIRE FACIAS AD DISFROBAN- 
 DUM DEBITUM (Lat.). The name of a 
 writ in use in Pennsylvania, which lies by a 
 defendant in foreign attachment against the 
 plaintiff, in order to enable him, within a 
 year and a day next ensuing the time of pay- 
 ment to the plaintiff in the attachment, to 
 disprove or avoid the debt recovered against 
 him. Act relating to the commencement of 
 actions, s. 61, passed June 13, 1836. 
 
 SCIRE FECI (Lat. I have made known). 
 In Practice. The return of the sheriff, or 
 other proper officer, to the writ of scire facias, 
 when it has been served. 
 
 SCIRE FIERI INQUIRT. In Eng- 
 lish Law. The name of a writ formerly 
 used to recover the amount of a judgment 
 from an executor. 
 
 The history of the origin of the writ is as fol- 
 lows. When on an execution de bonis testatoris 
 against an executor the sheriff returned nulla 
 bona and also a devasfavitj a fieri facias, de bonis 
 propriis, might formerly have been issued against 
 the executor, without a previous inquisition 
 finding a devastavit and a scire facias. But the 
 most usual practice upon the sheriff's return of 
 nidla bona to a. fieri facias de bonis testatoris was 
 to sue out a special writ of fieri facias de bonis 
 testatoris, with a clause in it, " et si tibi constare 
 poterit," that the executor had wasted the goods, 
 then to levy de bonis propriis. This was the 
 practice in the king's bench till the time of 
 Charles I. 
 
 In the common pleas a practice had prevailed 
 in early times upon a suggestion in the special 
 writ of ^ri facias of a devastavit by the execu- 
 tor, to direct the sheriff to inquire hy a jury 
 whether the executor had wasted the goods, and 
 if the jury found he had, then a scire facias was 
 issued out against him, and, unless he made a 
 good defence thereto, an execution de bonis pro- 
 priis was awarded against him. 
 
 The practice of the two courts being different, 
 several cases were brought into the king's bench 
 on error, and at last it became the practice of 
 both courts, for the sake of expedition, to incor- 
 porate the fieri facias inquiry, and scire facias, 
 into one writ, thence called a scire fieri inquiry, — 
 a name compounded of the first words of the 
 two writs of scire facias and fi^ri facias, and 
 that of inquiry, of which it consists. 
 
 This writ recites the fieri facias de bonis testa- 
 toris sued out on the judgment against the ex- 
 ecutor, the return of niUla bona by the sheriff, 
 and then, suggesting that the executor had sold 
 and converted the goods of the ' testator to the 
 value of the debt and damages recovered, com- 
 mands the sheriff to levy the said debt and dam- 
 ages of the goods of the testator in the hands of 
 the executor, if they could be levied thereof, but 
 If it should appear to him by the inquisition of a 
 
SCITE 
 
 616 
 
 SCRUTATOR 
 
 jury that the executor had wasted the goods of 
 the testator, then the sheriff is to warn the ex- 
 ecutor to appear, etc. If the judgment had 
 been either by or against the testator or intestate, 
 or both, the writ of fieri facias recites that fact, 
 and also that the court had adjudged, upon a 
 scire facias to revive the judgment, that the ex- 
 ecutor or administrator should have execution 
 for the debt, etc. Clift, Entr. 659 ; LiUy, Entr. 
 664. 
 
 Although this practice is sometimes adopted, 
 yet the most usual proceeding is by action of 
 debt, on the judgment, suggesting a devasta- 
 vit, because in the proceeding by scire fieri 
 inquiry the plaintiff is not entitled to costs 
 unless the executor appears and pleads to the 
 scire facias ; 1 Saund. 219, n. 8. See 2 
 Archb. Pr. 934. 
 
 SCITE. The setting or standing of any 
 place. The seat or situation of a capital 
 messuage, or the grouud on which it stood. 
 Jacobs, Law Diet. 
 
 SCOLD. See Common Scold. 
 
 SCOT AND LOT. In English Law. 
 The name of a customary contribution, laid 
 upon all the subjects according to their ability. 
 
 SCOTALE. An extortion by officers of 
 the forests who kept ale-houses and compelled 
 people to drink there under fear of their dis- 
 pleasure. Manw. For. Laws, pt. 1, 216. 
 
 SCOTCH MARRIAGES. It was for- 
 merly quite common for persons to cross the 
 border into Scotland in order to be married 
 without the delay and formalities required 
 in England. Gretna Green, in Dumfries^ 
 shire, was the most celebrated resort for this 
 purpose, being most conveniently situated ; 
 hence the phrase "Gretna Green" marriages. 
 They were practically abolished in 1856. 
 See 1 Bish. Mar. & D. 192, n. ; 2 Steph. 
 Com. 295, n. 
 
 SCOUNDREL. An opprobrious title, 
 applicable to a person of bad character. 
 General damages will not lie for calling a 
 man a scoundrel, but special damages may be 
 recovered when there has been an actual loss ; 
 2 Bouvier, Inst. u. 2250 ; 1 Chitty, Pr. 44. 
 
 SCRAWL. A mark which is to supply 
 the place of a seal. 2 Pars. Contr. 100. 
 See Scroll. 
 
 SCRIP. A certificate or schedule. Evi- 
 dence of the right to obtain shares in a public 
 company ; sometimes called scrip certificate, 
 to distinguish it from the real title to shares. 
 Wharton, Law Diet. ; 15 Ark. 12. The 
 possession of such scrip is prima facie evi- 
 dence of ownership of the shares therein desig- 
 nated ; Addison, Contr. 203*. It is not 
 goods, wares, or merchandise within the 
 Statute of Frauds ; 16 M. & W. 66. Scrip 
 certificates have been held negotiable ; L. R. 
 10 Ex. 337 ; Dos Passes, Stockbrokers, 488. 
 
 SCRIPT. The original or principal in- 
 strument, where there are part and counter- 
 part. 
 
 SCRIVENER. A person whose business 
 it is to write deeds and other instruments for 
 others ; a conveyancer. 
 
 Money scriveners are those who are en. 
 gaged in procuring money to be lent on mort. 
 gages and other securities, and lending such 
 money accordingly. They act also as agents 
 for the purchase and sale of real estates. 
 
 An attorney, qua attorney, is not a scriv- 
 ener ; 18 E. L. & Eq. R. 402. 
 
 To be considered a money scrivener, a per- 
 son must be concerned in carrying on the 
 trade or profession as a means of making a 
 livelihood. He must in the course of his occu- 
 pation receive other men's money into his 
 trust and custody, to lay out for them as ocoa- 
 sioE offers ; 3 Camp. 538. 
 
 SCROLL. A mark intended to supply 
 the place of a seal made with a pen or other 
 instrument of writing. 
 
 A scroll is adopted as a sufficient seal in 
 Jamaica ; 1 B. & P. 360, Arkansas, Dela- 
 ware, Florida, Georgia, Ilhnois, Indiana, 
 Maryland, Michigan, Minnesota, Mississippi, 
 Missouri, North Carolina, Ohio, Oregon, 
 Pennsylvania, South Carolina, Wisconsin, and, 
 perhaps, one or two other states. In those 
 states, as a rule, the scroll will not have the 
 effect of a seal, unless the maker declare, in the 
 instrument itself, that he set his seal thereto ; 
 7 Leigh, 301. In Mississippi and Florida 
 it has been held, that "a scroll attached 
 to a written instrument has the effect of a 
 seal, whenever it appears, from the body of 
 the instrument, the scroll itself, or the place 
 where affixed, that such scroll was intended 
 as a seal ;" 42 Miss. 304 ; 9 Sm. & M. 34. 
 In Tennessee the word "seal" affixed to the 
 name has been held equivalent to a seal or 
 scroll ; 1 Swan, 333 ; otherwise in Virginia 
 and Indiana. In Wisconsin and Pennsyl- 
 vania a printed " L. S.," inclosed in brac- 
 kets, in the usual place of a seal, is sufficient; 
 5 Wis. 549 ; or in the latter state a seal made 
 with a flourish of the pen ; 1 S. & K. 72. An 
 expression in the body of the instrument de- 
 noting that it is sealed is sufficient, whatever 
 the scroll may be ; 5 Mo. 79 ; 1 Morris (la.), 
 43 ; 5 Harr. (Del.) 351; 18 La. An. 524. See 
 Martindale, Conveyancing. In the New Eng- 
 land states. New Jersey, and New York, the 
 common-law seal is required; Thornton, 
 Conv. 
 
 SCRTTET ROLL (called, also, Scruet 
 Finium, or simply Scruet). In Old BngUBh 
 Law. A record of the bail accepted incases 
 of habeas corpus. The award was set down 
 in the remembrance roll, together with the 
 cause of commitment, the writ and return 
 were put on file, the bail was recorded in the 
 scruet. 8 Howell, St. Tr. 134, 136, arg. 
 For remembrance roU, see Reg. Mich. 1654, 
 §15. 
 
 SCRUTATOR (Lat. from scrutari, to 
 search). In Old English Law. A bailiff 
 whom the king ©f England appointed m 
 
SCUTAGE 
 
 017 
 
 SEA-SHORE 
 
 places that were his in franchise or interest, 
 whose duty was to look after the king's 
 water-rights: as, flotsam, jetsam, wreck, etc. 
 
 1 Hargr. Tracts, 23; Pat. 27 Hen. VI. 
 parte 2, m. 20; Pat. 8 Ed. IV. parte 1, m. 
 22. 
 
 SCXTTAQE (from Lat. scutum, a shield). 
 Kniffht-service. Littleton, § 99. The tax 
 which those who, holding by knight-service, 
 did not accompany the king, had to pay on 
 its being assessed by parliament. Lscuage 
 certain was a species of socage where the 
 compensation for service was fixed. Little- 
 ton, § 97 ; Reg. Orig. 88. 
 
 SCYRSGEMOTE. The name of a 
 court among the Sajcons. It was the court 
 of the shire, in Latin called curia comitatis, 
 and the principal court among the Saxons. 
 It was holden twice a year for determining all 
 causes both ecclesiastical and secular. 
 
 SE DBPENDENDO (Lat.). Defending 
 himself. Homicide se defendendo may be 
 justifiable. 
 
 SEA. The ocean ; the great mass of 
 water which surrounds the land, and which 
 probably extends from pole to pole, covering 
 nearly three-quarters of the globe. Waters 
 within the ebb and flow of the tide are to be 
 considered the sea. Gilp. 526. 
 
 A large body of salt water communicating 
 with the ocean is also called a sea : as, the 
 Mediterranean sea, etc. 
 
 Very large inland bodies of salt water are 
 also called seas : as, the Caspian sea, etc. 
 
 The high seas include the whole of the seas 
 below high water mark and outside the body 
 of the county. Couls. & F. on Waters. See 
 
 2 Ex. Div. 62. 
 
 The open sea is public and common pro- 
 perty, and any nation or person has ordinarily 
 an equal right to navigate it or to fish therein ; 
 1 Kent, 27 ; Ang. Tide- Waters, 44 ; and to 
 land upon the sea-shore; 1 Bouvier, Inst. 
 173. 
 
 Every nation has jurisdiction over the 
 person of its own subjects in its own public 
 and private vessels when at sea ; and so far 
 territorial jurisdiction may be considered as 
 preserved ; for the vessels of a nation are in 
 many respects considered as portions of its 
 territory, and persons on board are protected 
 and governed by the laws of the country to 
 which the vessel belongs. The extent of 
 jurisdiction over adjoining seas is often a 
 question of difficulty, and one that is still 
 open to controversy. As far as a nation can 
 conveniently occupy, and that occupation is 
 acquired by prior possession or treaty, the 
 jurisdiction is exclusive; 1 Kent, 29-31. 
 This has been heretofore limited to the dis- 
 tance of a cannon-shot, or marine league, 
 over the waters adjacent to its shore ; 2 Cra. 
 187, 234; 1 Cra. C. C. 62; Bynkershoek, 
 Qn. Pub. Juris. 61 ; 1 Azuni, Marit. Law, 
 185, 204; Vattel, 207. See League; Sea- 
 man; Admiralty. 
 
 SEA-LETTER, SEA-BRIEF. In Marl- 
 time Law. A document which should be 
 found on board of every neutral ship ; it spe- 
 cifies the nature and quantity of the cargo, 
 the place from whence it comes, and its desti- 
 nation. Chitty, Law of Nat. 197 ; 1 Johns. 
 192. 
 
 SEA-SHORE. That space of land on the 
 border of the sea which is alternately covered 
 and left dry by the rising and falling of the 
 tide ; or, in other words, that space of land 
 between high and low water mark. Hargrave, 
 St. Tr. 12; 6 Mass. 435; 1 Pick. 180; 5 
 Day, 22; 12 Me. 237; 2 Zabr. 441 ; 4 De 
 G. M. & G. 206 ; 40 Conn. 382 ; 8. c. 16 
 Am. Rep. 61, n. See Tide; Tide- 
 Wateb. 
 
 At common law, the sea-shore, in England, 
 belongs to the crown ; in this country, to the 
 state ; Ang. Tide-Wat. 20 ; 3 Kent, 347 ; 27 
 E. L. & E. 242 ; 6 Mass. 435 ; 16 Pet. 
 367; 3 How. 221; 3 Zabr. 624. In Eng- 
 land, the sovereign is not the absolute pro- 
 prietor, but holds the sea-shore subject to the 
 public rights of navigation and fishery ; and 
 if he grants it to an individual, his grantee 
 takes subject to the same rights ; Phear, 
 Rights of Water, 45-55 ; Ang. Tide- Wat. 
 21. So in this country it has been held that 
 the rights of fishery and navigation remain 
 unimpaired by the grant of lands coveredl by 
 navigable water ; 6 Gill, 121. But the power of 
 the states, unlike that of the crown, is abso- 
 lute, except in so far as it is controlled by the 
 federal constitution ; Ang. Tide-Wat. 59. 
 The states, therefore, may regulate the use 
 of their shores and the fisheries thereon, pro- 
 vided such regulations do not interfere with 
 the laws of congress ; 4 Wash. C. C. 371; 
 18 How. 71 ; 4 Zabr. 80 ; 2 Pet. 245. And 
 see Tide- Water ; River. 
 
 The public right of fishing includes shrimp- 
 ing and gathering all shell-fish or other fish 
 whose natural habitat is between high and 
 low water mark ; 5 Day, 22 ; 2 B. & P. 472; 
 22 Me. 363. 
 
 In Massachusetts and Maine, by the colony 
 ordinance of 1691, and by usage arising there- 
 from, the proprietors of the adjoining 
 land on bays and arms of the sea, and other 
 places where the tide ebbs and flows, go to 
 low water mark, subject to the public ease- 
 ment, and not exceeding one hundred yards 
 below high water mark ; 3 Kent, 429 ; Dane, 
 Abr. e. 68, a. 3, 4. See Wharf. 
 
 By the Roman law, the shore included the 
 land as far as the greatest wave extended in 
 winter : est autem littus maris, quatenus hiber- 
 nus fluctus maximus excurrit. Inst. 1. 2, t. 
 1, s. 3. Littus publicum est eatenus qua 
 maxime fluctus excestuat. Dig. 60. 16. 112. 
 
 The Civil Code of Louisiana seems to have 
 followed the law of the Institutes and the Di- 
 gest; for it enacts, art. 442, that the "sea- 
 shore is that space of land over which the 
 waters of the sea are spread in the highest 
 water during the winter season." See 5 Rob. 
 182 ; Dougl. 425 ; 1 Halst. 1 ; 2 RoUe, Abr. 
 
SEA- WEED 
 
 618 
 
 SEALING A VERDICT 
 
 170; Dy. 326; 5 Co. 107; Bacon, Abr. 
 Courts of Admiralty (A) ; 16 Pet. 234, 367; 
 Ang. Tide-Waters, 5 M. & W. 327 ; 22 Me. 
 360; Coul. & P., Waters; Hale's De Jure 
 Maris, given in full in Hale Sea Sh. and for 
 the most part in 16 Am. Rep. 54. 
 
 SEA-WEED. A species of grass which 
 grows in the sea. 
 
 When cast upon land, it belongs to the 
 owner of the land adjoining the sea-shore, 
 upon the grounds that it increases gradually, 
 that it is useful as manure and a protection to 
 the ground, and that it is some compensation 
 for the encroachment of the sea upon the land; 
 3 B. & Ad. 967 ; 2 Johns. 313, 323. See 5 
 Vt. 223. But when cast upon the shore be- 
 tween high and low water mark it belongs to 
 the public and may be lawfully appropriated 
 by any person; 40 Conn. 382 ; 8. C. 16 Am. 
 Rep. 54. 
 
 SEAL. An impression upon wax, wafer, 
 or some other tenacious substance capable of 
 being impressed. 5 Johns. 239 ; 4 Kent, 
 452. 
 
 Lord Coke defines a seal to be wax, with an 
 impression. 3 Inst. 169. " SigiUwm," says he, 
 '' est cera impressa^ quia cera sine impressione non 
 est sigitlum." The definition given above is tlie 
 common-law definition of a seal ; Perkins, 139, 
 134 ; Brooke, Abr. Fails, 17, 30 ; 3 Leon. 21 ; 5 
 Johns. 339 ; 21 Pick. 417 ; but any other ma- 
 terial besides wax may be used ; 1 Am. L. Rev. 
 639. 
 
 The mere printing of the fac simile of the seal 
 of a corporation at the same time and by the 
 same agency as the printing of the certificates, 
 to be afterwards signed by the president and sec- 
 retary, leaving writing to be done by the olficers 
 of the corporation, who alone were authorized 
 to affix the corporate seal, does not constitute a 
 valid seal ; 10 Allen, 351 ; but the impression of 
 a corporate seal stamped upon and into the sub- 
 stance of the paper upon which the instrument 
 is written, is a good seal, although no wax, 
 wafer, or Other adhesive substance Is used ; 14 
 id. 381. 
 
 In some of the United States a, scroll is 
 equally effective. See SoEOLL. 
 
 . Merlin defines a seal to be a plate of metal 
 with a flat surface, on which is engraved the 
 arms of a prince or nation, or private individual, 
 or other device, with which an impression may 
 be made on wax or other substance on paper or 
 parchment, in order to authenticate them : the 
 impression thus made is also called a seal ; B^ 
 pert, mot Sceau ; 3 M'Cord, 583 ; 5 Whart. 563. 
 
 When a seal is affixed to an instrument it 
 makes it a specialty. See Specialty. 
 
 When an instrument concludes with the 
 words, " witness our hands and seals," and is 
 signed by two persons, with only one seal, the 
 jury may infer from the face of the paper 
 that the person who signed last adopted the 
 seal of the first ; 6 Penn. 302. An execu- 
 tory contract under seal, ignorantly made in 
 pursuance of a parol authority, will be suf- 
 ficient to maintain an action, the seal being 
 disregarded as mere excess; 60 Penn. 214. 
 Where a corporation executed a promissory 
 note, payable to the order of its president, 
 attaching thereto before delivery, its corpo- 
 rate seal, it was held that the note was not a 
 
 negotiable note under the law merchant, but 
 was a specialty ; 8 Fed. Rep. 534. See 1 Ohio 
 386 ; 3 Johns. 470; 12 id. 76 ; as to the origin 
 and use of seals, Addison, Contr. 6 ; Sckoll. 
 
 The public seal of a foreign state proves 
 itself; and public acts, decrees, and judg- 
 ments exemplified under this seal are received 
 as true and genuine; 2 Cra. 187, 238- 7 
 Wheat. 273, 335; 2 Conn. 85; 6 Wend. 
 475. See 2 Munf. 53. But to entitle its 
 seal to such authority the foreign state must 
 have_ been acknowledged by the governmtnt 
 within whose jurisdiction the forum is located- 
 3 Wheat. 610 ; 9 Ves. 347. 
 
 The seal of a notary public is taken judi- 
 cial notice of the world over ; 2 Esp. 700 • 5 
 Cra. 536; 6 S. & R. 484; 3 Wend. 173; 
 1 Gray, 1 76 ; but it must not be a scroll ; 4 
 Blackf. 158. Judicial notice is taken of the 
 seals of superior courts ; Comyns, Dig. Evi- 
 dence (A 2) ; not so of foreign courts ; 3 
 East, 221; 9 id. 192; except admiralty or 
 marine courts; 2 Cra. 187; 4 id. 292, 435; 
 3 Conn. 171. See Story, Confl. Laws, § 
 643 ; 2 Phill. Ev. 464, notes. 
 
 SEAL SAVS. In English Practice. 
 Motion days in the court of chancery, so 
 called because every motion had to be stamped 
 with the seal, which did not lie in court in 
 the ordinary sittings out of term ; Whart. 
 Diet. 
 
 SEAL OFFICE. In English Practice. 
 The office at which certain judicial writs are 
 sealed with the prerogative seal, and without 
 which they are of no authority. The officer 
 whose duty it is to seal such writs is caUed 
 "sealer of writs." 
 
 SEAL OF THE UNITED STATES. 
 
 The seal used by the United States in congress 
 assembled shall be the seal of the United 
 States, Tiz. : Arms, paleways of thirteen 
 pieces argent and gules ; a chief azure ; the 
 escutcheon on the breast of the American 
 eagle displayer proper, holding in his dexter 
 talon an olive-branch, and in his sinister a 
 bundle of thirteen arrows, all proper, and in 
 his beak a scroll, inscribed with this motto, 
 " Epluribus nnum." For the Ckkst : over 
 the head of the eagle which appears above 
 the escutcheon, a glory, or breaking through 
 a cloud, proper, and surrounding thirteen 
 stars, forming a constellation argent on an 
 azure field. Rbveese, a pyramid unfinished. 
 In the zenith, an eye in a triangle, surrounded 
 with a glory proper: over the eye, these 
 words, Annuit cceptis." On the base of the 
 pyramid, the numerical letters mdcclxxvi ; 
 and underneath, the following motto : "Novus 
 or do sectorum." Resolution of Congress, 
 June 20, 1782; R. S. § 1798. See 1 Cra. 
 158. • 
 
 SEALING A VERDICT. In Practice. 
 The putting a verdict in writing, and placing 
 it in an envelope, which is sealed. To rebeve 
 jurors after they have agreed, it is not unusual 
 for the counsel to agree that the jury sM' 
 seal their verdict and then separate. When 
 
SEALS 
 
 619 
 
 SEAMAN 
 
 the court is again in session, the jury come 
 in and give their verdict in all respects as if it 
 had not been sealed ; and a juror may dis- 
 sent from it if since the sealing he has hon- 
 estly changed his mind ; 8 Ohio, 405 ; 1 Gilm. 
 333. 
 
 SEALS. In Louisiana. A method o^ 
 taking the effects of a deceased person into 
 public custody. 
 
 On the death of a person, according to the laws 
 of Louiisana, if the heir wishes to obtain the 
 benefit of inventory and the delays for deliber- 
 ating, he is bound, as soon as he knows of the 
 death of tlie deceased to whose succession he is 
 called, and before committing any act of heir- 
 ship, to cause the seals to be affixed on the effects 
 Of the succession by any judge or justice of the 
 peace. La. Civ. Code, art. 1037. 
 
 In ten days after this affixing of the seals, the 
 heir is bound to present a petition to the judge 
 of the place in whicb the succession is opened, 
 praying for the removal of the seals and that a 
 true and faithful inventory of the effects of the 
 succession be made. Id. art. 1028. 
 
 In case of vacant estates, and estates of which 
 the heirs are absent and not represented, the seals, 
 after the decease, must be affixed by a judge or 
 justice of the peace within the limits of his juris- 
 diction, and may be fixed by him either ex officio 
 or at the request of the parties. La. Civ. Code, 
 art. 1070. The seals are affixed at the request of 
 the parties when a widow, a testamentary execu- 
 tor, or any other person who pretends to have 
 an interest in a succession or community of pro- 
 perty, requires it. Id. art. 1071. They are 
 affixed ex officio when the presumptive heirs of 
 the deceased do not all reside in the place where 
 he died, or if any of them happen to be absent. 
 Id. art. 1073. 
 
 The object of placing the seals on the effects 
 of a succession is for the purpose of preserving 
 them, and for the interest of third persons. Id. 
 art. 1068. 
 
 The seals must be placed on the bureaus, cof- 
 fers, armories, and other things which contain 
 the effects and papers of the deceased, and on 
 the doors of the apartments which contain these 
 things, so that they cannot be opened without 
 tearing off, breaking, or altering the seals. Id. 
 art. 1069. 
 
 The judge or justice of the peace who affixes 
 the seals is bound to appoint a guardian, at the 
 expense of the succession, to take care of the 
 seals and of the effects, of which an account is 
 taken at the end of the proces-verbal of the affix- 
 ing of the seals. The guardian must be domi- 
 ciliated in the place where the inventory is 
 taken ; id. art. 1079. And the judge, when he 
 retires, must take with him the keys of all 
 things and apartments upon which the seals 
 have been affixed; id. 
 
 The raising of the seals is done by the judge 
 of the place, or justice of the peace appointed by 
 hhn to that effect, in the presence of the wit- 
 neeses of the vicinage. In the same manner as for 
 the affixing of the seals ; id. art. 1084. 
 
 SEAMAN. A sailor; a mariner; one 
 whose business is navigation. 2 Boulay-Paty, 
 Dr. Com. 232; Lawsof Oleron, art. 7; Laws 
 of Wisbuy, art. 19. 
 
 The term seamen, in its most enlarged 
 sense, includes the captain as well as other 
 persons "of the crew ; in a more confined sig- 
 nification, it extends only to the common 
 sailors ; 3 Pardessus, n. 66 7. But the mate ; 
 
 1 Pet. Adm. 246 ; tho cook and steward ; 2 
 id. 268 ; and engineers, clerks, carpenters, 
 firemen, deck-hands, porters, and cliam- 
 ber-maids, on passenger-steamers, when 
 necessary for the service of the ship ; 1 
 Conkl. Adm. 107 ; 2 Pars. Marit. Law, 582 ; 
 are considered, as to their rights to sue in the 
 admiralty, as common seamen ; and persons 
 employed oil board of steamboats and lighters 
 engaged in trade or commerce on tide- water 
 are within the admiralty jurisdiction ; while 
 those employed in ferry-boats are not ; Gilp. 
 203, 532. Persons who do not contribute 
 their aid in navigating the vessel or to its pre- 
 servation in the course of their occupation, as 
 musicians, are not to be considered as seamen 
 with a right to sue in the admiralty for their 
 wages; Gilp. 516. See Lien. 
 
 Seamen are employed either in merchant- 
 vessels for private service, or in public vessels 
 for the service of the United States. 
 
 Seamen in the merchant-vessels are re- 
 quired to enter into a contract in writing, 
 commonly called shipping articles, which 
 see. This contract being entered into, they 
 are bound, under severe penalties, to render 
 themselves on board the vessel according to 
 the agreement ; they are not at liberty to 
 leave the ship without the consent of the cap- 
 tain or commanding ofiicer ; and for such ab- 
 sence, when less than forty-eight hours, they 
 forfeit three days' wages for every day of ab- 
 sence ; and when the absence is more than 
 forty-eight hours at one time, they forfeit all 
 the wages due to them, and all their 
 goods and chattels which were on board the 
 vessel, or in any store where they may have 
 been lodged at the time of their desertion, to 
 the use of the owners of the vessel ; and 
 they are liable for damages for hiring other 
 hands. They may be imprisoned for deser- 
 tion until the ship is ready to sail. 
 
 On board, a seaman is bound to do his duty 
 to the utmost of his ability ; and when his 
 services are required for extraordinary exer- 
 tions, either in consequence of the death of 
 other seamen or on account of unforeseen 
 perils, he is not entitled to an increase of 
 wages, although it may have been promised 
 to him; 2 Camp. 317. For disobedience of 
 orders he may be imprisoned or punished 
 with stripes ; but the correction must be rea- 
 sonable ; 4 Mas. 508 ; 2 Day, 294 ; 1 Wash. 
 C. C. 316; but see Correction; and, for 
 just cause, may be put ashore in a foreign 
 country ; 1 Pet. Adm. 186 ; 2 id. 268 ; 2 
 East, 145. By act of congress, Sept. 28, 
 1850, 9 Stat, at L. 615, it is provided that 
 flogging in the navy and on board vessels of 
 commerce be, and the same is hereby, aba- 
 lished from and after the passage of this act. 
 And this prohibits corporal punishment by 
 stripes inflicted with a cat, and any punish- 
 ment which in substance and effect amounts 
 thereto ; 1 Curt. C. C. 501. 
 
 Seamen are entitled to their wages, of 
 which one-third is due at every po^ at which 
 the vessel shall unlade and deliver her cargo 
 
SEAMEN'S FUND 
 
 620 
 
 SEARCH-WARRANT 
 
 before the voyage be ended ; and at the end 
 of the voyage an easy and speedy remedy is 
 given them to recover all unpaid wages. 
 When taken sick, a seaman is entitled to 
 medical advice and aid at the expense of the 
 ship, such expanse being considered in the 
 nature of additional wages and as constituting 
 a just remuneration for his labor and services; 
 Gilp. 435 ; 2 Mas. 641. 
 
 The right of seame^i to wages is founded 
 not in the shipping articles, but in the services 
 performed; Bee, 895; and to recover such 
 wages the seaman has a triple remedy, — 
 against the vessel, the owner, and the master ; 
 Gilp. 592 ; Bee, 254. 
 
 When destitute in foreign ports, American 
 consuls and commercial agents are required to 
 provide for them, and for their passage to 
 some port of the United States, in a reason- 
 able manner, at the expense of the United 
 States ; and American vessels are bound to 
 take such seamen on board at the request of 
 the consul, but not exceeding two men for 
 every hundred tons of the ship, and transport 
 them to the United States, on such terms, 
 not exceeding ten dollars for each person, as 
 may be agreed on. See R. S. §§ 4554- 
 4591 ; Seamen's Fund. 
 
 Seamen in the public service are governed 
 by particular laws. See Navy; Naval 
 Code. 
 
 SEAMEN'S FUND. By the act of July 
 16, 1798, a provision is made for raising a 
 fund for the relief of disabled and sick sea- 
 men : the master of every vessel arriving 
 from a foreign port into the United States is 
 required to pay to the collector of customs at 
 the rate of twenty cents per month for every 
 seaman employed on board of his vessel, 
 which sura he may retain out of the wages of 
 such seaman ; vessels engaged in the coasting- 
 trade, and boats, rafts, or flats navigating the 
 Mississippi with intention to proceed to New 
 Orleans, are also laid under similar obliga- 
 tions. The fund thus raised is to be em- 
 ployed by the president of the United States, 
 as circumstances shall require, for the benefit 
 and convenience of sick and disabled Ameri- 
 can seamen. Act of March 3, 1802, s. 1. 
 
 By the act of congress passed Feb. 28, 
 1803, c. 62, R. S. § 4584, it is provided that 
 when a seaman is discharged in a foreign 
 country with his own consent, or when the 
 ship is sold there, he shall, in addition to his 
 usual wages, be paid three months' wages 
 into the hands of the American consul, two- 
 thirds of which are to be paid to such sea- 
 man on his engagement on board any vessel to 
 return home, and the remaining one-third is 
 retained in aid of a fund for the relief of 
 distressed American seamen in foreign ports. 
 See 11 Johns. 66; 12 id. 143; 1 Mas. 45; 
 4 id. 541 ; Edw. Adm. 239. 
 
 SEARCH. In Criminal Law. An ex- 
 amination of a man's house, premises, or 
 person, for the purpose of discovering proof 
 of his guilt in rmtion to some crime or mis- 
 
 demeanor of which he is accused. See 
 Search Warrant. 
 
 By act of March 2, 1799, s. 68, it is enacted 
 that every collector, naval officer, and sur. 
 veyor, or other person specially appointed by 
 either of them for that purpose, shall have 
 full power and authority to enter any ship or 
 vessel or any dwelling-house in the "daytime 
 upon taking proper measures, to search for 
 
 foods forfeited for non-payment of duties- 
 I. S. § 8066. ' 
 
 In Practice. An examination made in 
 the proper lien office for mortgages, liens, 
 judgments, or other incumbrances against 
 real estate. The certificate given by the 
 officer as to the result of such examination is 
 also called a search. 
 
 Conveyancers and others who cause searches 
 to be made ought to be very careful that they 
 should be correct with regard — to the time dur- 
 ing which the person against whom the search 
 has been made owned the premises ; to the pro- 
 perty searched against, which ought to be properly 
 described ; and to the form of the certificate of 
 search. 
 
 SEARCH, RIGHT OF. In Maritime 
 Law. The right existing in a belligerent to 
 examine and inspect the papers of a neutral 
 vessel at sea. On the continent of Europe 
 this is called the right of visit. Dalloz, 
 Diet. Prises mariiimes, n. 104-111, 
 
 The right does not extend to examine the 
 cargo, nor does it extend to a ship of war, 
 it being strictly confined to the searching of 
 merchant-vessels. The exercise of the right 
 is to prevent the commerce of contraband 
 goods. Although frequently resisted by 
 powerful neutral nations, yet this right ap- 
 pears now to be fixed beyond contravention. 
 The penalty for violently resisting this right 
 is the confiscation of the property so with- 
 held from visitation. Unless in extreme cases 
 of gross abuse of his right by a belligerent, 
 the neutral has no right to resist a search ; 1 
 Kent, 154. 
 
 The right of search — or rather of visita- 
 tion — in time of peace, especially in its con- 
 nection with the efforts of the British govern- 
 ment for the suppression of the slave-trade, 
 has been the subject of much discussion ; but 
 it is not \i;ithin the scope of this work to re- 
 view such discussions. See Wheat. Right of 
 Search ; The Life of Genl. Cass, by Smith, 
 c. 25; Webster, Works, vol. 6, 829, 886, 
 338 ; and the documents relating to this sub- 
 ject communicated to congress from time to 
 time, and most of the works on international 
 law, may be profitably examined by those 
 who desire to trace the history and understand 
 the merits of the questions involved in the pro- 
 posed exercise of this right. See, also, Edm- 
 burgh Review, vol, 11, p, 9 ; Foreign Quar- 
 terly Review, vol. 36, p. 211 ; 8 Philhmore, 
 International Law, Index, title VM and 
 Search; Morse, Citizenship, 75. 
 
 SEARCH-WARRANT. In Practice. 
 A warrant requiring the officer to whom it is 
 addressed to search a house, or other place, 
 
SEARCHER 
 
 621 
 
 SECESSION 
 
 therein specified, for property therein alleged 
 to have been stolen, and, if the same shall 
 he found upon such search, to bring the 
 iToods 30 found, together with the body of the 
 person occupying the same, who is named, 
 before the justice or other officer granting the 
 warrant, or some other justice of the peace, 
 or other lawfully-authorized officer. 
 
 It should be given under the hand and seal 
 of the justice, and dated. 
 
 The constitution of the United States, 
 Amendments, art. 4, declares that "the right 
 of the people to be secure in their persons, 
 houses, papers, and effects against unreason- 
 able searches and seizures, shall not be vio- 
 lated ; and no warrants shall issue but upon 
 probable cause, supported by oath or affirm- 
 ation, and particularly describing the place 
 to be searched, and the person or thing to be 
 seized." See 11 Johns. 600 ; 3 Cra. 447. 
 
 Lord Hale, 2 PI. Cr. 149, recommends 
 great caution ingranting such warrants : — first, 
 that they be not granted without oath made 
 before a justice of a felony committed, and 
 that the complainant has probable cause to 
 suspect that the goods are in such a house or 
 place, and his reasons for such suspicion, see 
 2 Wils. 283 ; 1 Dowl. & R. 97 ; 13 Mass. 
 236 ; 5 Ired. 45 ; 1 R. I. 464 ; second, that 
 such warrants express that the search shall be 
 made in daytime ; third, that they ought to 
 be directed to a constable or other proper 
 officer, and not to a private person ; fourth, 
 that they ought to command the officer to 
 bring the stolen goods, and the person in 
 whose custody they are, before some justice 
 of the peace. See 6 B. & C. 332 ; 5 Mete. 
 Mass. 88. They should designate the place 
 to be searched ; 1 M. & W. 255 ; 2 Mete. 
 Mass. 329 ; 2 J. J. Marsh. 44 ; 6 Blaokf. 
 249 ; 1 Conn. 40. Tresspass will not lie 
 against a party who has procured a search- 
 warrant to search for stolen goods, if the war- 
 rant be duly issued and regularly executed ; 
 6 Wend. 382. And see 6 Me. 421 ; 2 Conn. 
 700; 11 Mass. 500; 2 Litt. 231 ; 6 Gill & 
 J. 377. See Cooley, Const. Lim. 367 ; Gen- 
 eral Warrant. 
 
 SEARCHER. In English Law. An 
 officer of the customs, whose duty it is to ex- 
 amine and search all ships outward bound, to 
 ascertain whether they have any prohibited 
 or uncustomed goods on board. 
 
 SEAT IN STOCK EXCHANGE. See 
 Stock Exchange. 
 
 SEATED LANDS. In the early land- 
 legislation of some of the United States, 
 seated is used, in connection with improved, 
 to denote lands of which actual possession was 
 taken. 5 Pet. 468. 
 
 SEAWORTHINESS. In Maritime 
 Law. The sufficiency of the vessel in ma- 
 terials, construction, equipment, officers, men, 
 and outfit, for the trade or service in which it 
 IS employed. 
 
 Under a marine policy on ship, freight, or 
 cargo, the fitness for the service of the vessel, 
 
 if there is no provision to the contrary at the 
 outset, is an implied condition, non-compli- 
 ance with whicth defeats the insurance ; 2 
 Johns. 231 ; 1 Whart. 399 ; 1 Camp. 1 ; 5 
 Pick. 21 ; 2 Ohio, 211 ; 2 B. & Aid. 73 ; 6 
 Cow. 270 ; 3 Hill, K. Y. 250 ; 4 Mas. 439 ; 
 20 Wend. 287; 1 Pet. C. C. 410; 1 Wall. 
 Jr. 273 ; 1 Curt. C. C. 278 ; 2G Penn. 192 ; 
 4 H. L. C. 253 ; 01c. 110; 12 Md. 348. 
 
 It is of no consequence whether the in- 
 sured was aware of the condition of the ship, 
 or not. His, innocence or ignorance is no 
 answer to the fact that the ship was not sea- 
 worthy. When the want of seaworthiness 
 arises from justifiable ignorance of the cause 
 of the defect, and is discovered and remedied 
 before any injury occurs, it is not to be con- 
 sidered as a defect ; 1 Johns. 241 ; 1 Pet. 
 183; 2B. &Ald. 73. 
 
 The opinion of carpenters who have re- 
 paired the vessel, however they may strength- 
 en the presumption that the ship is sea- 
 worthy, when it is favorable, is not conclu- 
 sive of the fact of seaworthiness ; 4 Dowl. 
 269. The presumption prima facie is for 
 seaworthiness; 1 Dowl. 336. And it is pre- 
 sumed that a vessel continues seaworthy if 
 she was so at the inception of the risk ; 20 
 Pick. 389. See 1 Brev. 252. Any sort of 
 disrepair left in the ship, by which she or the 
 cargo may suffer, is a breach of the warranty 
 of seaworthiness. A deficiency of force in 
 the crew, or of skill in the master, mate, etc., 
 is a want of seaworthiness ; 1 Camp. 1 ; 4 
 Du. N. Y. 234. But if there was once a suf- 
 ficient crew, their temporary absence will not 
 be considered a breach of the warranty ; 2 B. 
 & Aid. 73 ; 1 Johns. Cas. 184 ; 1 Pet. 183. 
 A vessel may be rendered not seaworthy by 
 being overloaded; 2 B. & Aid. 320. 
 
 It can never be settled by positive rules of 
 law how far this obligation of seaworthiness 
 extends in any particular case, for the reason 
 that improvements and changes in the means 
 and modes of navigation frequently require 
 new implements, or new forms of old ones ; 
 and these, though not necessary at first, 
 become so when there is an established usage 
 that all ships of a certain quality, or those to 
 be sent on certain voyages or used for certain 
 purposes, shall have them ; 2 Pars. Marit. 
 Law, 134. Seaworthiness is, therefore, in 
 general, a question of fact ; 1 Pet. 1 70, 184 ; 
 9 Wall. 526. 
 
 SECESSION. The act of withdrawing ; 
 separation. 
 
 The attempted secession of eleven of the 
 states, from the United States government 
 led to the civil war of 1861-65, and gave rise 
 to many important decisions afiecting the 
 mutual relations of the national and state 
 governments, and the rights of citizens 
 under contracts made before and during the 
 war. And first, as to the Power or Right nf 
 Secession, 
 
 The union of the states was never a purely 
 artificial relation. By the articles or confedera- 
 tion the union was declared to be perpetual, and 
 
SECESSION 
 
 622 
 
 SECONDS 
 
 the constitution was ordained to form a more 
 perfect union. But this by no means implies the 
 loss of individual existence on the part of the 
 states ; the constitution looks throughout to an 
 indestructible union of indestructible states ; 
 and the more recent states are no less subject to 
 this principle than the original ones. Considered 
 as transactions under the constitution, the ordin- 
 ance of secession adopted by any one of the 
 seceding states, and all the acts of her legisla- 
 ture intended to give effect to that ordinance 
 were absolutely null and without operation in 
 law. The state did not cease, to be a state, nor 
 her citizens, citizens of the union. The war of 
 secession was therefore treason. It is the prac- 
 tice of modern governments when attacked by 
 formidable rebellion to concede belligerent 
 rights : this establishes no rights except during 
 the war. Legal rights could neither be created 
 nor defeated by the action of the government of 
 the Confederate States. Neither the pretended 
 acts of secession nor the*magnitude of the war 
 could constitute a confederate state government 
 de facto, so as to create civil rights which could 
 outlast the war, except that acts necessary to 
 peace and good order among citizens, such as 
 those relating to private relations and private 
 property, which would be valid if emanating 
 irom a lawful government, must be regarded in 
 general as valid when proceeding from an actual, 
 though unlawful, government ; 7 Wall. 700 ; 1 
 Abb. U. S. 50 ; Chase's Dec. 136. 
 
 As to the validity of contracts. Where one en- 
 gaged actively in the seiTice of the rebel govern- 
 ment purchased cotton which was afterwards 
 seized by the military forces of the United States, 
 sold, and the proceeds paid into the treasury, 
 held, that his purchase of the cotton was illegal 
 and void and gave him no title thereto ; 93 U. S. 
 60.5 ; 21 Wall. 350. The confederate government 
 had no corporate power to take, hold, or convey 
 a valid title to property, real and personal, and a 
 purchaser of cotton from said government dur- 
 ing the rebellion acquired no title thereto : 8 Ct. 
 of CI. 499. 
 
 Confederate bonds. The bonds issued by the 
 seceding states do not constitute a valid con- 
 sideration for a promissory note ; 15 Wall. 439 ; 
 and so of the securities known as Confederate 
 treasury notes ; 1 Abb. U. S. Rep. 261 ; but a 
 promise to pay in " Confederate notes" in con- 
 sideration of the receipt of such notes and of 
 drafts payable by them, is neither a nudum 
 pactum nor an illegal contract ; 16 Wall. 483. 
 
 Validity of statutes. When the military forces 
 of the Confederate government were overthrown, 
 it perished, and with it all its enactments. But 
 the legislative acts of the several states forming 
 the confederacy stand on different grounds, and 
 so far as they did not impair or tend to impair 
 the supremacy of the national authority or the 
 just rights of citizens under the constitution, 
 they are in general to be treated as valid and 
 binding ; 96 U. S. 177 ; 97 id. 594 ; 1 Chase's 
 Dec. 167 ; 7 Wall. 733 ; 33 id. 99. 
 
 Payments made under the Confederate seques- 
 tration acts were void and gave no title : see 96 
 U. S. 193. ' 
 
 Deciiions of the Confederate courts. Judg- 
 ments of such courts merely settling the rights of 
 private parties actually within their jurisdiction, 
 not tending to defeat the just rights of citizens of 
 the United States, nor in furtherance of laws 
 passed in aid of the rebellion, are valid ; 1 
 Woods, 487 ; 97 U. S. 509 ; and a judgment of a 
 court of Georgia in November, 1861, for the 
 purchase-money of slaves, was held a valid judg- 
 ment when entered, and may be enforced now 
 (1871) 1 10 Am. L. Reg. N. s. 641. But during the 
 
 war, the courts of states in rebellion had no 
 jurisdiction of parties residing in states which 
 adhered to the national government ■ 10 Am 
 L. Reg. N. 8. 53. See further, 15 Wall. 610 • ia 
 Op. Att. Gen. 141, 182; 13 id. 149; 45 6a 370 • 
 20 Gratt. 31 ; 13 Wall. 646; Kurd's Theory of Nat' 
 Govt. ; Reoonstbuction; Confederate States! 
 
 SBCK. A want of remedy by distress. 
 Littleton, s. 218. See Rent. Want of 
 present fruit or profit, as in the ease of the 
 reversion without rent or other service ex- 
 cept fealty. Co. Litt. 151 b, n. 5. ' " 
 
 SECOND DELIVERANCE. The 
 name of a writ given by statute of West- 
 minster 2d, 13 Edw. I. c. 2, founded on the 
 record of a former action of replevin. Co. 
 2d Inst. 341. It commands the sheriff, if the 
 plaintiff make him secure of prosecuting his 
 claim and returning the chattels which were 
 adjudged to the defendant by reason of the 
 plaintifi's default, to make deliverance. On 
 being nonsuited, the plaintiff in replevin 
 might,_ at common law, have brought another 
 replevin, and so arf infinitum, to the intolerable 
 vexation of the defendant. The statute of 
 Westminster restrains the plaintiff when non- 
 suited from so doing, but allows him this writ, 
 issuing out of the original record, in order to 
 have the same distress delivered again to him, 
 on his giving the like security as before ; 3 
 Bla. Com. 150. 
 
 SECOND DISTRESS. See Distress. 
 SECOND SURCHARGE, WRIT OP. 
 
 The name of a writ issued in England against 
 a commoner who has a second time sur- 
 charged the common. 3 Bla. Com. 239. 
 
 SECONDARY. An officer who is second 
 or next to the chief ofiicer ; as, secondaries to 
 the prothonotaries of the courts of king's 
 bench or common pleas ; secondary of the 
 remembrancer in the exchequer, etc. Jacob, 
 Law Diet. 
 
 SECONDARY CONVEYANCES, or 
 derivative conveyances, are those which pre- 
 suppose some other conveyance precedent, 
 and only serve to enlarge, confirm, alter, re- 
 strain, restore, or transfer the interest granted 
 by such original conveyance. 2 Sharsw. Bla. 
 Com. 234*. 
 
 SECOITDARY EVIDENCE. See Evi- 
 dence. 
 
 SECOND-HAND EVIDENCE. This 
 term is sometimes applied to hearsay evi- 
 dence, and should not be confounded with 
 secondary evidence; see Pow. Ev. 
 
 SECONDS. In Criminal Law, Those 
 persons who assist, direct, and support othew 
 engaged in fighting a duel. 
 
 Where the principal in deliberate duelling 
 would be guilty of murder, the second is con- 
 sidered equally guilty. It has been contended 
 that the second of him who is killed is equally 
 guilty with the second of the successful princi- 
 pal; but this is denied by Judge Hale, whocon- 
 siders such a one guilty only of great misoe- 
 meaner; 1 Barb. PI. Cr. 242; 2 Bish. Cr. 
 Law, § 311. 
 
SECRETARY 
 
 623 
 
 SEDERUNT, ACTS OF 
 
 SECRETAR'7. An officer who, by order 
 of his superior, writes letters and other in- 
 struments. He is so called because he is pos- 
 sessed of the secrets of his employer. This 
 term was used in France in 1343, and in Eng- 
 land the term secretary was first applied to 
 the clerks of the king, who being always near 
 his person were called clerks ojthe secret, and 
 in the reign of Henry VIII. the term secre- 
 tary of state came into use. 
 
 In the United States the term is used to 
 denote the head of a department : as, secretary 
 of state, etc. See Department. 
 
 SECRETARY OP EMBASST. An 
 officer appointed by the sovereign power to 
 accompany a minister of the first or second 
 rank, and sometimes, though not often, of an 
 inferior rank. 
 
 He is, in fact, a species of pubUo minister ; for, 
 independently of his protection as attached to an 
 ambassador's suite, he enjoys in his own riglit 
 the same protection of the law of nations, and 
 the same immunities^ as an ambassador. But 
 private secretaries of a minister must not be con- 
 founded with secretaries of embassy or of lega- 
 tion. Such private secretaries are entitled to 
 protection only as belonging to the suite of the 
 ambassador. 
 
 SBCRETART OP LEGATION. An 
 officer employed to attend a foreign mission 
 and to perform certain duties as clerk. 
 
 He is considered a diplomatic officer ; B. S. 
 § 1674. 
 
 The salary of a secretary of embassy, or the 
 secretary of a minister plenipotentiary, is the 
 same as that of a secretary of legation. 
 
 SECT A (Lat. sequor, to follow). The 
 persons, two or more in number, whom the 
 plaintiif produced in court, in the ancient 
 form of proceedings, immediately upon 
 making his declaration, to confirm the allega^ 
 tions therein, before they were called in ques- 
 tion by the defendant's plea. Bracton, 214 
 a. The word appears to have been used as 
 denoting that these persons followed the 
 plaintifl into court ; that is, came in a matter 
 in which the plaintiif was the leader or one 
 principally concerned. The actual production 
 of suit was discontinued very early ; 3 Bla. 
 Com. 295 ; but the formula " et inde pro- 
 ducit sectam" (for which in more modern 
 pleadings " and thereupon he brings suit " is 
 substituted) continued till the abolition of the 
 Latin form of pleadings. Steph. PI. 429. 
 Tlie count in dower and writs of right did not 
 so conclude, however ; 1 Chitty, PI. 399. A 
 suit or action. Hob. 20 ; Bracton, 399 b. A 
 suit of clothes. Cowel ; Spelman, Gloss. 
 
 Ad Purnum. Suit due a, public bake- 
 house. 
 
 Ad Molendrinum. A service arising 
 from the usage, time out of mind, of carry- 
 mg corn to a particular mill to be ground. 3 
 Bla. Com. 235. A writ adapted to the in- 
 jury lay at the old law. Fitzh. N. B. 123. 
 
 Ad Torrale. Suit due a man's kiln or 
 mali^house. 3 Bla. Com. 235. 
 
 Curiae, Suit at court. The service due 
 from tenants to the lord of attending his 
 
 courts-baron, both to answer complaints al- 
 leged against themselves, and for the trial of 
 their fellow- tenants. 2 Bla. Com. 54. 
 
 SECTATORES. A man's followers. 
 Suitors of court among the Saxons. 1 
 Reeve's Hist. Eng. L. 22. 
 
 SECTION OF LAND. A parcel of 
 government land containing six hundred and 
 forty acres. The lands of the United States 
 are surveyed into parcels of six hundred and 
 forty acres ; each such parcel is called a 
 section. 
 
 These sections are divided into half-sec- 
 tions, each of which contains three hundred 
 and twenty acres, and into quarter-sections of 
 one hundred and sixty acres each. See 2 
 Washb. B. P. 
 
 SECTORES (Lat.). In Roman Law. 
 
 Bidders at an auction. Babington, Auct. 2. 
 
 SECTTRITT. That which renders a mat- 
 ter sure ; an instrument which renders cer- 
 tain the performance of a contract. A person 
 who becomes the surety for another, or who 
 engages himself for the performance of 
 another's contract. See 3 Blackf. 431. 
 
 SECURITY FOR COSTS. In Prac- 
 tice. In some courts there is a rule that 
 when the plaintiff resides abroad he shall give 
 security for costs, and until that has been 
 done, when demanded, he cannot proceed in 
 his action. 
 
 This is a right which the defendant must 
 claim in proper time ; for if he once waives 
 it he cannot afterwards claim it : the waiver 
 is seldom or perhaps never expressly made, 
 but is generally implied from the acts of the 
 defendant. When the defendant had under- 
 taken to accept short notice of trial ; 2 H. 
 Blackst. 573 ; or after issue joined, and when 
 he knew of plaintiff's residence abroad, or, 
 with such knowledge, when the defendant 
 takes any step in the cause, these several acts 
 will amount to a waiver ; 5 B. & Aid. 702. 
 It is never too late, however, if the motion 
 do not delay the trial ; 1 Yeates, 176. See 
 1 Johns. Ch. 202; 1 Ves. 396 ; 1 Tr. & H. 
 Pr. 530. 
 
 The fact that the defendant is out of the 
 jurisdiction of the court will not alone autho- 
 rize the requisition of security for costs : he 
 must have his domicil abroad ; 1 Ves. 396. 
 When the defendant resides abroad, he will 
 be required to give such security although he 
 is a foreign prince. See llS. &R. 121; 1 
 Miles, Penn. 321 ; 2 tVi. 402. A general affi- 
 davit of defence is sufficient on moving for 
 security for costs ; the particulars of the de- 
 fence need not be specified ; 1 W. N. Cas. 
 (Pa.), 134. 
 
 SECTTS (Lat.). Otherwise. 
 
 SEDERUNT, ACTS OP. Ancient or- 
 dinances, of the court of session in Scotland, 
 by which authority is given to the court to 
 make regulations equivalent to the Regulie 
 Generales, of the English courts. Various 
 
SEDITION 
 
 624 
 
 SEISIN 
 
 modern acts give the court such power ; 
 Whart. Diet. 
 
 SEDITION. In Criminal Law. The 
 
 raising commotions or disturbances in the 
 state : it is a revolt against legitimate 
 authority. Erskine, Inst. 4. 4. 14. 
 
 The distinction between sedition and treason 
 consists in this : that though the ultimate object 
 of sedition is a violation of the public peace, or 
 at least such a course of measures as evidently 
 engenders it, yet it does not aim at direct and 
 open violence against the laws or the subversion 
 of the constitution. Alison, Crim. Law of 
 Scotl. 580. 
 
 The obnoxious and obsolete act of July 14, 
 1798, 1 Story, Laws, 543, was called the sedition 
 law, because its professed object was to prevent 
 disturbances. 
 
 SEDUCING TO LEAVE SERVICE. 
 
 In England a master may bring an action on 
 the case for enticing away his servant or ap- 
 prentice, knowing him to be such ; 6 Mod. 
 182 ; Bac. Abr. tit. Master and Servant O. 
 
 3 ; 4 Sharsw. Bla. Com. 429, n. 
 
 The subject seems to have received little or no 
 attention in this country. A person making a 
 contract with the servant of another, to take 
 effect at the expiration of his present term of 
 service, is liable to no action therefor ; 4 Pick. 
 435. 
 
 SEDUCTION (Lat. seductio, from se, 
 aw^y, duco, to lead). 
 
 The act of a man in inducing a woman to 
 commit unlawful sexual intercourse with 
 him. 
 
 At common law the woman herself has no 
 action for damages, though practically the 
 end is reached by a suit for breach of pro- 
 mise of marriage, in many cases, but in some 
 states the rule has been altered by statute. 
 The parent, as being entitled to the services 
 of his daugliter, may maintain an action in 
 many cases grounded upon that right, but only 
 in such cases ; 6 M. & W. 55 ; 7 Ired. 408 ; 
 
 4 N. Y. 38; 14 Ala. n. s. 235; 11 Ga. 
 603 ; 13 Gratt. 726 ; 3 Sneed, 29 ; 6 Ind. 
 262 ; 10 Mo. 634. In England the parent's 
 right of action terminates when the child leaves 
 the parent's h6use without the intention of re- 
 turning ; 5 East, 45 ; but in America the 
 right of action depends on the will of the pa- 
 rent, not the child ; if he has not divested 
 himself of a right to require his child's ser- 
 vices, he may recover, even though at the 
 time of the injury she was in another's ser- 
 vice with his permission ; 9 Johns. 387 ; 8. 
 c. Big. L. C. Torts. 286; otherwise if his 
 power of the child was gone at the time of 
 the seduction. If the control was divested 
 by fraud, the parent has still a right of 
 action ; 2 Stark. 493. Specific acts of ser- 
 vice are not necessary to a right of action : 
 the right to the service is enough ; Big. 
 Torts. 146. The right of action "continues 
 after tlie majority of tlie child, if the relation 
 of master and servant continues; 3 Vroom, 
 58. It Is not necessary that pregnancy should 
 ensue ; Big, Torts. 147 ; contra, 1 Exch. 61 ; 
 where the proper consequence of the defen- 
 
 dant's act was a loss of the child's health re- 
 sulting in an incapacity for service, an action 
 lies ; 104 Mass. 222 ; especially where sex- 
 ual disease is communicated to the child' 
 Big. Torts. 147. The daughter's consent 
 does not affect the parent's right to recover- 
 5 Lans. 454. If the mother, after the 
 father's death, is the child's guardian, she 
 has a right of action ; Big. Torts. 149 • 
 apart from the mother's guardianship, she 
 has a right of action so long as the daughter 
 continues to give her services to her mother. 
 See 51 N. Y. 424. Where the daughter in 
 her illness returns to her mother and is taken 
 care of by her, the mother may sue for the 
 seduction ; 5 Cow. 106 ; contra, 2 Watts, 
 474 ; 14 Ala. 235. See, generally, as to the 
 mother' s right of action ; Big. L. C. Torts. 
 
 302. Any one standing in loco parentis, 
 and entitled to, or receiving, in his own right, 
 the services of a minor, is entitled to main- 
 tain the action ; Big. Torts. 152 ; 2 C. & P. 
 
 303. If the parent consented to the seduc- 
 tion, or rendered it easy by his misconduct 
 or neglect, he cannot recover; Feake, 240; 
 Big. Torts. 151. 
 
 While the loss of services is the gist of the 
 action, yet, when that has once been estab- 
 lished, the jury may give damages commen- 
 surate with the real injury inflicted on the 
 plaintiff". See Big. L. C. Torts. 294. By 
 statute, seduction has been made a criminal 
 offence in some states. 
 
 SEEDS. The substance which nature 
 prepares for the reproduction of plants or 
 animals. 
 
 Seeds which have been sown in the earth 
 immediately become a part of the land in 
 which they have been sown : quce sata solo 
 cedere intelliguntur. Inst. 2. 1. 32. 
 
 SEIGNIOR, SEIGNEUR. Among the 
 feudists, this name signified lord of the fee. 
 Fitzh. N. B. 23. The most extended signi- 
 fication of this word includes not only a lord 
 or peer of parliament, but is applied to the 
 owner or proprietor of a thing: hence the 
 owner of a hawk, and the master of a fishing 
 vessel, is called a seigneur. 87 Edw. III. c. 
 19; Barrington, Stat. 258. 
 
 SEIGNIOR7. In English Law. The 
 rights of a lord, as such, in lands. Swinb. 
 Wills, 174. 
 
 SEISIN. The completion of the feudal 
 investiture, by which the tenant was admitted 
 into the feud and performed the rights of ho- 
 mM;e and fealty. Stearns, Keal Act, 2. 
 
 Possession with an intent on the part of 
 him who holds it to claim a freehold interest. 
 8N. H. 58; 1 Washb. K. P. 35. 
 
 Immediately upon the investiture orliveiyof 
 seisin the tenant became tenant of the freehold; 
 and the term seisin originally contained the idea 
 of possession derived from a superior lord of 
 whom the tenant held. There could be but one 
 seisin, and the person holding it wasregardei 
 for the time as the rightful owner; Littleton, S 
 701; 1 Spence, Eq. Jnr. 136. In the early his- 
 tory of the country, livery of seisin seems to 
 
SEIZING OP HERIOTS 
 
 625 
 
 SELF-DEFENCE 
 
 hare been occaBionally practised. See 1 Washb. 
 R, P. 31, D. ; Colony Laws (Mass.), 85, 86; 
 Smith, Landl. & T. 6, n. 
 
 In Connecticut, Massachusetts, FenneylTania, 
 and Ohio, seisin nufeans merely ownership, and 
 the distinction between seisin in deed and in law 
 1b not known in practice ; 4 Day, 305 ; 14 Pick. 
 224. A patent by the commonwealth. In Ken- 
 tucky, gives a right of entry, but not actual sei- 
 sin ; S Bibb, 57. 
 
 Seisin in fact is possession with intent on 
 the part of him who holds it to claim a free- 
 hold interest. 
 
 Seisin in law is a right of immediate pos- 
 session according to the nature of the estate. 
 Cowel; Comyns, Dig. Seisin (A 1, 2). 
 
 If one enters upon an estate having title, 
 the law presumes an intent in accordance, 
 and requires no further proof of the intent ; 
 12 Mete. 3.57 ; 4 Wheat. 213 ; 8 Cra. 229 ; 
 but if one enters without title, an intent to 
 gain seisin must be shown ; 5 Pet. 402 ; 9 id. 
 52. Seisin once established is presumed to 
 continue till the contrary is shown ; 5 Mete. 
 Mass. 173. Seisin will not be lost by entry 
 of a stranger if the owner remains in posses- 
 sion ; 1 Salk. 246 ; 9 Mete. 418. Entry by 
 permission of the owner will never give seisin 
 without open and unequivocal acts of disseisin 
 known to the owner ; 10 Gratt. 305 ; 9 Mete. 
 418. Simple entry by one having the free- 
 hold title 13 sufficient to regain seisin ; 4 
 Mass. 416 ; 25 Vt. 316 ; 10 Pet. 412 ; 8 Cra. 
 247. The heir is invested with the seisin by 
 law upon descent of the title ; 24 Pick. 78. 
 Ag a general proposition, by the law in this 
 country, the making, delivery, and recording 
 of a deed of lands passes the seisin without 
 any formal entry being necessary. This is 
 generally by force of the statutes of the 
 several states, — in some such a deed being in 
 terms declared to be equivalent to livery of 
 seisin, and in others dispensing with any fur- 
 ther act to pass a full and complete title ; 4 
 Greenl. Cruise, Dig. 45, n., 47, n.; Smith, 
 Landl. & T. 6, n.; 3 Dall. 489. 
 
 The seisin could never be in abeyance ; 1 
 Prest. Est. 255 ; and this necessity gave rise 
 to much of the difficult law in regard to es- 
 tates enjoyable in the future. See 1 Spence, 
 Eq. Jur. 156. 
 
 SEIZING OP HERIOTS. Taking the 
 best beast, etc., where an heriot is due, on 
 the death of the tenant. 2 Bla. Com. 422 ; 
 Whart. Diet. 
 
 SEIZURE. In Practice. The act of 
 
 taking possession of the property of a person 
 condemned by the judgment of a competent 
 tribunal to pay a certain sum of money, by 
 a sheriff, constable, or other officer lawfully 
 authorized thereto, by virtue of an execution, 
 for the purpose of having such property sold 
 according to law to satisfy the judgment. The 
 taking possession of go^s for a violation of a 
 public law: as, the taking possession of a 
 ship for attempting an illicit trade. 2 Cra. 187 ; 
 i Wheat. 100 ; 1 Gall. 75 ; 2 Wash. C. C. 
 127, 567 ; 6 Cow. 404. 
 Vol. n.— 40 
 
 The seizure is complete as soon as the 
 
 foods are within the power of the officer ; 16 
 ohns. 287; 2 N. & M'C. 392; 2 Kawle, 
 142; 3 id. 401 ; Wats. Sher. 172. 
 
 The taking of part of the goods in a house, 
 however, by virtue of a fieri facias in the 
 name of the whole, is a good seizure of all ; 
 8 East, 474. As the seizure must be made 
 by virtue of an execution, it is evident that it 
 cannot be made after the return-day ; 2 
 Caines, 243 ; 4 Johns. 450. See DoOR ; 
 House; Sbakch-Wareant. 
 
 SELBCTI JUDICES (Lat.). In Roman 
 Law. Judges who were selected very much 
 like our juries. They were returned by the 
 praetor, drawn by lot, subject to be challenged 
 and sworn. 3 Bla, Com. 366. 
 
 SELECTMEN. The name of certain 
 town officers in several states of the United 
 Slates, who are invested by the statutes of the 
 states with extensive powers for the conduct 
 of the town business. 
 
 SELP-DEPENCE. In Criminal Law. 
 
 The protection of one's person and property 
 from injury. 
 
 A man may defend himself, and even com- 
 mit a homicide for the prevention of any 
 forcible and atrocious crime which if com- 
 pleted would amount to a felony ; 1 7 Ala. N. 
 s. 587; 5 Ga. 85; 1 Jones, No. C. 190; 
 30 Miss. 619; 14 B. Monr. 103, 614; 3 
 Wash. C. C. 515 ; and, of course, under the 
 like circumstances, mayhem, wounding, and 
 battery would be excusable at common law ; 
 4 Bla. Com. 180. A man may repel force by 
 force even to the taking of life ; 45 Vt. 308; 
 s. o. 12 Am. Rep. 212, n. ; in defence of 
 his person, property, or habitation, or of a 
 member of his family, against any one who 
 manifests, intends, attempts, or endeavors, 
 by violence or surprise, to commit a forcible 
 felony, such as murder, rape, robbery, arson, 
 burglary, and the like ; 38 Penn. 265 ; 8 
 Bush, 481 ; s. c. 8 Am. Rep. 484. In these 
 cases he is not required to retreat ; 12 Re- 
 porter, 268 ; 67 Ind. 80 ; 64 id. 340 ; but he 
 may resist, and even pursue his adversary, 
 until he has secured himself from all danger; 
 
 7 J. J. Marsh. 478 ; 4 Bingh. 628 ; but see 7 
 N. Y. 396. A man may defend his dwelling 
 to any extremity ; and this includes whatever 
 is within the curtilage of his dwelling house ; 
 
 8 Mich. 150. In deciding what force is neces- 
 sary, a person need only act upon the circum- 
 stances as they appear to him at the time ; 
 see 24 Tex. 454; 23 111. 17. The doctrine 
 of constructive self-defence comprehends the 
 principle, civil and domestic relations ; there-' 
 fore master and servant, parent and child, 
 husband and wife, killing an assailant in the 
 necessary defence of each, respectively, are 
 excused, the act of the relation being con- 
 strued the same as the act of the party him- 
 self; 4 Bla. Com. 186 ; strangely enough, 
 there seems to be no authority for pMcing a 
 brother or sister in this category, though they 
 doubtless occupy as good a positipn as a stran- 
 
SELL 
 
 626 
 
 SENATUS CONSULTUM 
 
 ger ; 25 Alb. L. J. 187 ; see 2 Bish. Cr. L. 
 877. 
 
 A man may defend himself when no felony- 
 has been threatened or attempted. First, 
 when the assailant attempts to beat another 
 and there is no mutual combat : as where one 
 meets another and attempts to commit or does 
 commit an assault and battery on him, the 
 person attacked may defend himself ; 4 Denio, 
 448 ; 24 Vt. 218 ; 3 Harr. Del. 22 ; 3 Brev.- 
 515; 5 Gray, 475; 3 C. & P. 31 ; 9 id. 474; 
 see 10 Ired. 214 ; and in case of an offer or 
 attempt to strike another, when sufificiently 
 near, so that there is danger, the person 
 assailed may strike first, and is not required 
 to wait until he has been struck ; Bull. N. P. 
 18. Second, when there is a mutual combat 
 upon a sudden quarrel. In these cases both 
 parties are the aggressors ; and if in the fight 
 one is killed, it will be manslaughter at least, 
 unless the survivor can prove two things, viz., 
 that before the mortal stroke was given he had 
 refused any further combat, and had retreated 
 as far as he could with safety ; 8 N. Y. 396 ; 
 4 D. & B. 491 ; 15 Ga. 117 ; 1 Ohio St. 66; 
 1 Hawks, 78, 210; Selfridge's case ; and that 
 he killed his adversary from necessity, to 
 avoid his own destruction ; 32 Me. 279 ; 2 
 Halst. 220; 11 Humphr. 200; 2 N. Y. 193; 
 Coxe, N. J. 424 ; 25 Ala. N. S. 15. . 
 
 A man may defend himself against animals, 
 and he may during the attack kill them, but 
 not afterwards; 1 C. & P. 106; 10 Johns. 
 365 ; 13 id. 12, See Horr. & T. Cas. on Self 
 Defence, where all the cases are collected. 
 
 SELL. See Sale. 
 
 SELLER. One who disposes of a thing 
 in consideration of money ; a vendor. 
 
 This term is more usually applied in the 
 sale of chattels, that of vendor in the sale of 
 estates. See Sale. 
 
 SELLING PUBLIC OFFICES. Buy- 
 ing or selling any ofiice in the gift of the 
 crown, or making any negotiation relating 
 thereto was deemed guilty of a misdemeanor 
 under stats. 5 and 6 Edw. VI. c. 16, and 49 
 Geo. III. c. 126. Steph. Com. 7th ed. II. 621. 
 
 SEMBLE. (Fr. it seems.) A term fre- 
 quently used before the statement of a point 
 of law which has not been directly settled, 
 but about which the court have expressed 
 an opinion and intimated what a decision 
 would be. 
 
 SEMESTRIA. The collected decisions 
 of the emperors in their councils. Civ. Law ; 
 Whart. Diet. 
 
 . SEMINARY. A place of education. 
 Any school, academy, college, or university 
 in which young persons are instructed in the 
 several branches of learning which may 
 qualify them for their future employments. 
 Webster, Diet. 
 
 The word is said to have acquired no fixed 
 and definite legal me^ming. 12 N. Y. 229 
 
 SEMINAUFRAGIUM (Lat.). A terra 
 used by Italian lawyers, which literally signi 
 
 fies half-shipwreck, and by which they under- 
 stand the jetsam, or casting merchandise into 
 the sea to prevent shipwreck. Locrfe Esd 
 du Code de Com. art. 409. The state of a 
 vessel which has been so much injured by 
 tempest or accident that to repair the dam- 
 ages, after being brought into port, and pre- 
 pare her for sea, would cost more than her 
 worth. 4 Bost. L. Rep. 120. 
 
 SEMI-PROOF. In Civil Law. Pre- 
 sumption of fact. This degree of proof is 
 thus defined : "Non est ignorandum, proba- 
 tionem semiplenam earn esse, per quam rd 
 geslKB fides aliqua fit judici ; non tamen tania 
 ut jure debeat in pronuncianda sententia earn 
 sequi." Mascardus, deProb. vol. 1, Qusst 
 11, n. 1, 4. 
 
 SEMPER PAR ATUS (Lat.alwaj« 
 ready). The name of a plea by which the 
 defendant alleges that he has always been 
 ready to perform what is demanded of him. 
 3 Bla. Com. 303. The same as Tout imps 
 prist. 
 
 SEN. This is said to be an ancient word 
 which signified justice. Co. Litt. 61 a. 
 
 SENATE. The name of the less nume- 
 rous .of the two bodies constituting the legis- 
 lative branch of the government of the United 
 States, and of the several states. See the 
 articles upon the various states. 
 
 The Senate of the United States is compoeed 
 of two senators from each state, chosen by the 
 legislature thereof for six years ; and each sena- 
 tor has one vote. The equal suffrage of the 
 states in the senate is secured to them beyond 
 the ordinary power of amendment ; no state can 
 be deprived thereof without its consent. Art. 5. 
 The senate has been, from the first formation of 
 the government, divided into three classes. The 
 rotation of the classes was originally determined 
 by lot, and the seats of one class are vacated at 
 the end of the second year, so that one-third of 
 the senate is chosen every second year. XI. S. 
 Const, art. 1, s. 3. This provision was borrowed 
 from a similar one in some of the state constitu- 
 tions, of which Virginia gave the first example. 
 
 The qualifications which the constitution re- 
 quires of a senator are that he should be thirty 
 years of age, have been nine years a citizen of 
 the United States, and, when elected, be an in- 
 habitant of that state for which he shall be cho- 
 sen. U. S. Const, art. 1, 8. 3. See Congress. 
 
 SENATOR. A member of a senate. 
 
 SENATUS CONSULTA. (Ordinances 
 of the senate). Public acts among the Ro- 
 mans, affecting the whole community ; Sand. 
 Just. 5th ed. xxiv. 9. 
 
 SENATUS CONSULTUM (Lat.). In 
 Reman Law. A decree or decision of the 
 Roman senate, which had the force of law. 
 
 When the Koman people had so increased that 
 there was no place where they could meet, it was 
 found necessary to consult the senate, mstead oi 
 the people, both on public affairs and those whicn 
 related to individuals. The opinion which was 
 rendered on such an occasion was called smatia 
 eonsuUum. Inst. 1.2. 5; Clef, des Lois Rom.; 
 Merlin Expert. These decrees frequently ae- 
 rived their titles from the names of the consuls 
 orjnagistrates who proposed them : as senatus- 
 
SENATUS DECRETA 
 
 627 SEPARATE MAINTENANCE 
 
 eonsultum Claudianum, Llbonianum, Velleia- 
 num, etc., from Claudius, Libonius, Valleius. 
 Ayliffe, Pand. 30. 
 
 SENATTIS DECRETA. (Decisions of 
 the senate.) Private acts concerning particu- 
 lar persons merely ; Civ. law. 
 
 SENESCHALLUS (Lat.). A steward. 
 Co. Litt. 61 a. 
 
 SENILITT. The state of being old. 
 
 Sometimes it is exceedingly difficult to 
 know whether the individual in this state is 
 or is not so deprived of the powers of his 
 mind as to be unable to manage his affairs. 
 In general, senility is merely a loss of energy 
 in some of the intellectual operations, while 
 the affections remain natural and unperverted: 
 such a state may, however, be followed by 
 actual dementia or idiocy. 
 
 When on account of senility the party is 
 unable to manage his affairs, a committee will 
 be appointed as in case of lunacy ; 1 Collier, 
 Lun. 66; 2 Johns. Ch. 232; 5 id. 158; 4 
 Call, 423 ; 12 Ves. Jr. 446 ; 8 Mass. 129 ; 19 
 Ves. Jr. 285. 
 
 SENIOR. The elder. This addition is 
 sometimes made to a man's name, when two 
 persons bear the same, in order to distinguish 
 them. In practice when nothing is men- 
 tioned, the senior is intended ; 3 Miss. 59. 
 
 SENTENCE. A judgment, or judicial 
 declaration made by a judge in a cause. The 
 term judgment is more usually applied to 
 civil, and sentence to criminal, proceedings. 
 
 Sentences are final, when they put an end 
 to the ease ; or interlocutory, when they 
 settle only some incidental matter which has 
 arisen in the course of its progress. See Aso 
 & Man. Inst. b. 3, t. 8, c. 1. 
 
 A sentence exceeding the term allowed by law 
 will be reversed upon certiorari ; 3 Brews. 30. 
 Under some circumstances a sentence may be 
 suspended after conviction ; 43 N. J. 113 ; 115 
 Mags. 133. But a single sentence exhausts the 
 power of the court to punish the offender, after 
 the term is ended or the judgment has gone into 
 operation; 18 Wall. 163; 122 Mass. 317; 67 
 Penn. 391. See Aocumulative Judombnt. 
 
 SENTENCE OF DEATH RE- 
 CORDED. A custom in the English courts, 
 now disused, of entering sentence of death on 
 the record which is not intended to be pro- 
 nounced. The effect was the same as if it 
 had been pronounced and the offender re- 
 prieved. 
 
 SEPARALITER (Lat. separately). A 
 word sometimes used in indictments to show 
 that the defendants are charged separately 
 with offences which without the addition of 
 this word would seem, from the form of the 
 indictment, to be charged jointly : as, for ex- 
 ample, when two persons are indicted together 
 for perjury, and the indictment states that A 
 and B came before a commissioner, etc., this 
 13 alleging that they were both guilty of the 
 same crime, when bylaw their crimes are dis- 
 tinct, and the indictment is vicious ; but if 
 the word separaliter is used, then the a,ffirma- 
 
 tion is that each was guilty of a separate of- 
 fence. 2 Hale, PI. Cr. 174. 
 
 SEPARATE ACTION. An action is so 
 called which each of several persons must 
 bring when they are denied the privilege of 
 joining in one suit. 
 
 SEPARATE ESTATE. That which 
 belongs to one only of several persons : as, 
 the separate estate of a partner, which does 
 not belong to the partnership. 2 Bouvier, 
 Inst. n. 1519. 
 
 The separate estate of a married woman 
 is that which belongs to her and over which 
 her husband has no right in equity. It may 
 consist of lands or chattels. 4 Barb. 407 ; 1 
 Const. 452. 
 
 In England a married woman's capacity to dis- 
 pose of property of whatever kind settled to her 
 separate use, by deed or will, is absolute, unless 
 she be expressly restrained by the settlement ; 
 and generally speaking, it is bound by her con- 
 tracts, written or verbal. But this was not al- 
 ways so held ; 3 Johns. Ch. 77 ; 17 id. 548. Most 
 of the states adopt in the main the English doc- 
 trine as to the power to charge the separate es- 
 tate, but Pennsylvania, South Carolina, North 
 Carolina, Mississippi, Rhode Island, and Tennes- 
 see hold what has been called the American doc- 
 trine, that a married woman, as to her separate 
 estate, is SLfeme sole only in so far as the instru- 
 ment has expressly conferred upon herthe power 
 to act as such ; that she is confined to the parti- 
 cular mode of disposition prescribed in the in- 
 strument, if any, and the estate is not liable for 
 her contracts, bonds or notes, unless the instru- 
 ment expressly declares that it shall be charged; 
 1 Rawle, 231 ; 65 Penn. 430 ; 2 K. I. 355 ; 7Ired. 
 Eq. 311 ; KeUy, Con. of Marr. Women, p. 259. 
 See Address on Separate Use in Pennsylvania, 
 by E. C. Mitchell, Phila., 1875. The tendency 
 of legislation throughout the country has been 
 to enlarge the wife's powers over her separate 
 estate, and in some states, as New York and 
 Pennsylvania, it has been provided that the 
 wife's property held before or obtained during 
 marriage, shall be her sole and separate pro- 
 perty, thus abolishing the common law marital 
 rights of the husband, to the same extent that 
 they were avoided by a trust, in equity, to her 
 sole and separate use. In those states which 
 have adopted the American rule, a married 
 woman having a separate estate under the statute, 
 cannot make any contract, except so far as the 
 statute expressly or by necessary implication en- 
 ables her to do it. In those states which follow 
 the English doctrine, the rule is, that a married 
 woman having a separate estate conferred on her 
 by statute, may make contracts with respect 
 thereto, which will bind the estate, but not her 
 person. Kelly, Con. of Marr. Women, 261, 
 270; Schouler, Hub. & W. ch. III. ,See Feme 
 Sole Tbadeb. 
 
 SEPARATE MAINTENANCE. An 
 allowance made by a husband to his wife for 
 her separate support and maintenance. In 
 general, if a wife is abandoned by her hus- 
 band, without fault on her part, and left with- 
 out adequate means of support, a bill in 
 equity will lie to compel the husband to sup- 
 port her, without asking for or procuring a 
 decree of divorce; Schouler, Hus. and 
 W. § 486 ; 50 Miss. 694 ; 30 N. J. Eq. 
 359. 
 
SEPARATE TRIAL 
 
 628 
 
 SEQUESTRATION 
 
 When this allowance is regularly paid, and 
 notice of it has been given, no person who 
 has received such notice will be entitled to re- 
 cover against the husband for necessaries fur- 
 nished to the wife, because the liability of the 
 husband depends on a presumption of autho- 
 rity delegated by him to the wife, which is 
 negatived by the facts of the case; 2 Stark. 
 Ev. 699. 
 
 SEPARATIi TRIAL. See Joinder. 
 
 SEPARATION. A cessation of cohabi- 
 tation of husband and wife by mutual agree- 
 ment. 
 
 Contracts of this kind are generally made 
 by the husband for himself and by the wife 
 with trustees; 3 Paige, Ch. 483; 4 id. 516; 
 6 Bligh, N. s. 339; 1 Dow. & C. H.L. 519. 
 This contract does not aflfect the marriage, 
 and the parties may at any time agree to 
 live together as husband and wife. The hus- 
 band who has agreed to a total separation can- 
 not bring an action for criminal conversation 
 with the wife ; 4 Viner, Abr. 173 ; 2 Stark. 
 Ev. 698 ; Shelf. Marr. & D. 608. Articles 
 of separation are no bar to proceedings for 
 divorce for subsequent cause ; 4 Paige, 516 ; 
 33 Md. 401. Under recent l^islation, separ- 
 ation deeds are legalized in England ; L. R. 
 11 Ch. D. 608; Schouler, Hus. & W. § 476, 
 479. 
 
 Reconciliation after separation supersedes 
 special articles of separation, in courts of law 
 and equity ; 1 Dowl. P. C. 245 ; 2 Cox. 105 ; 
 3 Bro. C. C. 619, n.; 11 Ves. 632; 9 Cal. 
 479. Public policy forbids that parties should 
 be permitted to make agreements for them- 
 selves to hold good whenever they choose to 
 live separate ; sBIiehN. s. 367. And see 
 1 C. & P. 36 ; 11 Ves. 526 ; 2 S. & S. 372; 
 1 Y.& C. 28 ; 3 Johns. Ch. 621 ; 1 Des. Eq. 
 45, 198; 8 N. H. 350. 
 
 SEPARATION A MENSA ET 
 THORO. A partial dissolution of the mar- 
 riage relation. 
 
 By the ecclesiastical or canon law of England, 
 which had exclusive jurisdiction over marriage 
 and divorce, marriage was regarded as a sacra- 
 ment and indissoluble. This doctrine originated 
 with the church of Rome, and hecame estab- 
 lished in England while that country was Catho- 
 lic ; and though after the reformation it ceased 
 to be the doctrine of the church of England, yet 
 the law remained unchanged until the recent sta- 
 tute of 20 & 21 Vict. (1857) c. 85, and amend- 
 ments ; Bish. Marr. & D. §§ 65 n., 225. Hence, 
 as has been seen in the article on Divorce, a valid 
 marriage could not be dissolved in England ex- 
 cept by what has been termed the omnipotent 
 power of parliament. 
 
 This gave rise, In the ecclesiastical courts, to 
 the practice of granting divorces from bed and 
 board, as they used to be called, or judicial 
 separation, as they are called in the recent sta- 
 tute 30 & 21 Vict. c. 85, § 7 ; Bish. Marr. & D. 
 §§ 65 n., 325. From England this practice was 
 Introduced Into this country ; and though in 
 some of the states it has entirely given way to 
 the divorce a vinculo matrimonii, in others it is 
 still In use, being generally granted for causes 
 which are not sufficient to authorize the latter. 
 
 The only causes for which such a divorce is 
 granted in England are adultery and cruelty. 
 In this country it is generally granted abofor 
 wilful desertion, and in some states for other 
 causes. 
 
 The legal consequences of a separation from 
 bed and board are much less extensive than 
 those of a divorce a vinculo matrimonii 
 or a sentence of nullity. Such a separation 
 works no change in the relation of the parties 
 either to each other or to third persons, ex- 
 cept in authorizing them to live apart until 
 they mutually come together. In coming to- 
 gether, no new marriage is required, neither, 
 it seems, under the general law, are any new 
 proceedings in court necessary ; but the re- 
 conciliation, of its own force, annuls the sen- 
 tence of separation ; 5 Pick. 461 ; 4 Johns. 
 Ch. 187; 2 Dall. 128; Cro. Eliz. 908. 
 
 Nor does such a separation, at common law 
 and without statutory aid, change the relation 
 of the parties as to property. Thus, it neither 
 takes away the right of the wife to dower, nor 
 the right of the husband to the wife's real es- 
 tate, either during her life or after her death, 
 as tenant by the curtesy ; neither does it aiTeet 
 the husband's right in a court of law to reduce 
 into possession the choses in action of the wife ; 
 though in equity it maybe otherwise; 2Piclc. 
 316 ; 6 id. 61 ; 6 W. & S. 85; Cro. Eliz. 
 908 ; 4 Barb. 296. 
 
 It should be observed, however, that in this 
 country the consequences of a judicial separ- 
 ation are frequently modified by statute. See 
 Bishop, Marr. & D. §§ 660-696. 
 
 Of those consequences which depend upon 
 the order and decree of the court, the most 
 important is that of alimony. See Alimony. 
 In respect to the custody of children, the 
 rules are the same as in case of divorces a 
 vinculo matrimonii ; Bish. Marr. & D. c. 25. 
 See Divorce. 
 
 SEPTENNIAL ELECTIONS. The 
 English parliament dies a natural death at the 
 end of every seventh year if not previously 
 dissolved by the royal prerogative. 1 Geo. I. 
 St. 2 ; Whart. Diet. 
 
 SEPULCHRE. The place where a corpse 
 is buried. The violation of sepulchres is a 
 misdemeanor at common law. 
 
 SEQUESTER. In CivU and Ecclesi- 
 astical Law. To renounce. Example : when 
 a widow comes into court and disclaims hav- 
 ing anything to do or to intermeddle with 
 her deceased husband's estate, she is said to 
 sequester. Jacob, Law Diet. 
 
 SEQUESTRATION. In Chancery 
 Practice. A writ of commission, sometimes 
 directed to the sheriff, but usually to four or 
 more commissioners of the complainant's own 
 nomination, authorizing them to enter upon 
 the real or personal estate of the defendant, 
 and to take the rents, issues, and profits into 
 their own hands, and keep possession of or 
 pay the same, as the court shall order or di- 
 rect, until the party who is in contempt shall 
 do that which he is enjoined to do and which 
 
SEQUESTRATION 
 
 629 
 
 SERIATIM 
 
 is especially mentioned in the writ. Newl. 
 Ch. Pr. 18 ; Blake, Ch. Pr. 103. 
 
 Upon the return of non est inventus to a 
 commission of rebellion, a sergeant-at-arms 
 may be moved for ; and if he certifies that 
 the defendant cannot be taken, a motion may 
 be made upon his certificate for an order 
 for a sequestration ; 2 Madd. Ch. Pr. 203 ; 
 Blake, Ch. Pr. 103. It is the process for- 
 merly used instead of an attachment to secure 
 the appearance of persons having the privi- 
 lege of peerage or parliament, before a court 
 of equity; Adams, Eq. 326. 
 
 Under a sequestration upon mesne process, 
 as in respect of a contempt for want of ap- 
 pearance or answer, the sequestrators may 
 take possession of the party's personal pro- 
 perty and keep him out of possession, but no 
 sale can take place, unless perhaps to pay ex- 
 penses ; for this process is only to form the 
 foundation of taking the bill ^ro confesso. 
 After a- decree it may be sold. See 3 Bro. 
 C. C. 72, 372; 2 Cox Ch. 224; 1 Ves. 86. 
 
 See, generally, as to this speqies of seques- 
 tration, 19 Viner, Abr. 325; Bacon, Abr. 
 Sequestration ; Comyns, Dig. Chancery (D 7, 
 Y 4) ; 1 Hov. Suppl. to V es. 25 ; 7 Vern. 
 Eaithby ed. 58, n. 1, 421, n. 1. 
 
 In Contracts. A species of deposit which 
 two or more persons, engaged in litigation 
 about anything, make of the thing in contest 
 with an indifferent person, who binds himself 
 to restore it, when the issue is decided, to the 
 arty to whom it is adjudged to belong. La. 
 !ode, art. 2942 ; Story, Bailm. § 45. See 
 19 Viner, Abr. 325 ; 1 Vern. 58, 420 ; 2 
 Ves. 23. 
 
 In Louisiana. A mandate of the court, 
 ordering the sheriff, in certain cases, to take 
 in his possession, and to keep, a thing of 
 which another person has the possession, 
 until after the decision of a suit, in order 
 that it be delivered to him who shall be ad- 
 judged entitled to have the property or pos- 
 session of that thing. This is what is pro- 
 perly called a judicial sequestration. See 1 
 Mart. La. 79 ; 1 La. 439 ; La. Civ. Code, 
 2941, 2948. 
 
 In this acceptation, the word sequestration 
 does not mean a judicial deposit, because seques- 
 tration may exist together with the right of ad- 
 ministration, while mere deposit does not ad- 
 mit it. 
 
 All species of property, real or personal, 
 as well as the revenue proceeding from the 
 same obligations and titles, when their owner- 
 ship is in dispute, may be sequestered. 
 
 Judicial sequestration is generally ordered 
 only at the request of one of the parties to a 
 suit : as, where there is reason to believe that 
 the defendant may destroy or injure the pro- 
 perty in dispute during the delay of adjudi- 
 cation. There are cases, nevertheless, where 
 it is decree by the court without such request, 
 — as, where the title appears eejually bal- 
 anced, to continue till the question is decided, 
 ~or is the consequence of the execution of 
 judgments. 
 
 C( 
 
 Security is required from the petitioner 
 asking a sequestration to reimburse the de- 
 fendant his damages in case of disputed title. 
 
 When the sheriff has sequestered property 
 pursuant to an order of the court, he m*ust, 
 after serving the petition and the copy of the 
 order of sequestration on the defendant, send 
 his return in writing to the clerk of the court 
 which gave the order, stating in the same in 
 what manner the order was executed, and 
 annex to such return a true and minute in- 
 ventory of the property sequestered, drawn 
 by him in the presence of two witnesses. 
 
 The sheriff, while he retains possession of 
 a sequestered property, is bound to take pro- 
 per care of the same, and to administer the 
 same, if it be of such nature as to admit of 
 it, as a prudent father of a family administers 
 his own affairs. He may confide them to the 
 care of guardians or overseers, for whose acts 
 he remains responsible, and he will be en- 
 titled to receive a just compensation for his 
 administration, to be determined by the court, 
 to be paid to him out of the proceeds of the 
 property sequestered, if Judgment be given 
 in favor of the plaintiff; La. Civ. Code, 
 arts. 274-283. 
 
 SEQUESTRATOR. One to whom a 
 sequestration is made. 
 
 A depositary of this kind cannot exonerate 
 himself from the care of the thing sequestered 
 in his hands, unless for some cause rendering 
 it indispensable that he should resign his 
 trust. La. Civ. Code, art. 2947. See Stake- 
 holder. 
 
 Officers appointed by a court of chancery 
 and named in a writ of sequestration. As 
 to their powers and duties, see 2 Madd. Ch. 
 Pr. 205 ; Blake, Ch. Pr. 103. 
 
 SERF. In Feiidal Law. A term ap- 
 plied to a class of persons who were bound 
 to perform very onerous duties towards 
 others. Pothier, Des Personnes, pt. 1, t. 1, 
 a. 6, ». 4. 
 
 There is this essential difference between a serf 
 and a slave : the serf was bound simply to labor 
 on the sou where he was born, without any right 
 to go elsewhere without the consent of hie lord ; 
 but he was free to act as he pleased in his daily 
 action : the slave, on the contrary, is the property 
 of his master, who may require him to act as he 
 pleases in every respect, and who may sell him as 
 a chattel. Lepage, Science du Droit, c. 3, art. 
 3, §2. 
 
 SERGEANT. In Military Law, An 
 inferior officer of a company of foot or troop 
 of dragoons, appointed to see discipline ob- 
 served, to teach the soldiers the exercise of 
 their arras, and to order, straighten, and form 
 ranks, files, etc. 
 
 SERGEANT-AT-ARMS. An officer ap- 
 pointed by a legislative body, whose duties 
 are to enforce the orders given by such bodies, 
 generally under the warrant of its presiding 
 officer. 
 
 SERIATIM (Lat.). In a series ; seve- 
 rally : as, the judges delivered their opinions 
 seriatim. 
 
SERJEANTS-AT-LAW 
 
 630 
 
 SERVICE 
 
 SERJEANTS-AT-LAW. A very an- 
 cient and the most honorable order of ad- 
 vocates at the common law. 
 
 They were called, formerly, countors, or 
 serjeant-countors, or countors of the bench 
 (in the old law-Latin phrase, hand narra- 
 tores), and are mentioned by Matthew Paris 
 in the life of John 11., written in 1255. They 
 are limited to fifteen in number, in addition to 
 the judges of the courts of Westminster, who 
 are always admitted before being advanced 
 to the bench. 
 
 The most valuable privilege formerly en- 
 joyed by the Serjeants was the monopoly of 
 the practice in the court of common pleas. 
 A bill was introduced into parliament for the 
 purpose of destroying this monopoly, in 
 1755, which did not pass. In 1834, a war- 
 rant under the sign manual was directed to 
 the judges of the common pleas, commanding 
 them to open that court to the bar at large. 
 The order was i-eceived and complied with. 
 In 1839, the matter was brought before the 
 court and decided to be illegal; 10 Bingh. 
 671 ; 6 Bingh. N. C. 187, 232. The statute 
 9 & 10 Vict. c. 54 has since extended the 
 privilege to all barristers ; 3 Sharsw. Bla. 
 Com. 27, note. Upon the Judicature Act 
 coming into operation, Nov. 2d, 1875, the 
 institution and office of serjeant-at-law vir- 
 tually came to an end ; Weeks, Att. at Law, 
 § 33. See Experiences of Serjeant Ballan- 
 tine, Lond. 1882. 
 
 SERJEANTS' INN. The Inn to which 
 the serjeants-at-law belonged, near Chancery 
 Lane ; formerly called Faryndon Inn. See 
 Inns of Court; 3 Steph. Com. 272, n. It no 
 longer exists. 
 
 SERJEANT'S". In EngUsh Law. A 
 species of service which cannot be due or per- 
 formed from a tenant to any lord but the king, 
 and is either grand or petit serjeanty. 
 
 SERVAGE. Where a tenant, besides his 
 rent, finds one or more workmen for his lord's 
 service. King John brought the Crown of 
 England in servage to the see of Rome ; 2 
 Inst. 174; Whart. Diet. 
 
 SERVANTS. In Louisiana. A term 
 including slaves and, in general, all free per- 
 sons who let, hire, or engage their services to 
 another in t\ie state, to be employed therein 
 at any work, commerce, or occupation what- 
 ever, for the benefit of him who has con- 
 tracted with them, for a certain sum or retri- 
 bution, or upon certain conditions. La. Civ. 
 Code, arts. 155-157. 
 
 Personal Relations. Domestics ; those 
 who receive wages, and who are lodged and 
 fed in the house of another and employed in 
 his services. Such servants are not particu- 
 larly recognized by law. They are called 
 menial servants, or domestics, from living in- 
 fra mmnia, within the walls of the house. 1 
 Bla. Com. 324 ; Wood, Inst. 58. 
 
 The right of the master to their services in 
 every respect is grounded on the contract be- 
 tween them. 
 
 Laborers or persons hired by the day's 
 work or any longer time are not considered 
 servants ; 3 S. & R. 361. See 12 Ves. 114 • 
 16 id. 486 ; 2 Vern. 546 ; 8 Deac. &C. 832- 
 1 Mont. & B. 413 ; 2 Mart. La. u. s. 662! 
 Domestic ; Operative ; Master. 
 
 SERVICE. In Contracts. The being 
 employed to serve another. 
 
 In cases of seduction, the gist of the action is 
 not the Injury which the seducer has inflicted 
 on the parent by destroying his peace of mind 
 and the reputation of his child, but for the con- 
 sequent inability to perform those services for 
 which she was accountable to her master or her 
 parent, who assumes this character for the pur- 
 pose. See Seduction ; 2 M. & W. 539 ; 7 C. & 
 P. 5S8. 
 
 In Feudal Law. That duty which the 
 tenant owed to his lord by reason of his fee 
 or estate. 
 
 The services, in respect of then- quality, 
 were either free or base, and in respect of 
 their quantity, and the time of exacting them, 
 were either certain or uncertain. 2 Bla. 
 Com. 62. 
 
 In Civil Law. A servitude. 
 
 In Practice. The execution of a writ or 
 process. Thus, to serve a writ of capias sig- 
 nifies to arrest a defendant under the process; 
 Kirb. 48 ; 2 Aik. 838 ; 11 Mass. 181 ; to 
 serve a summons is to deliver a copy of it at 
 the house of the party, or to deliver it to him 
 personally, or to read it to him : notices and 
 other papers are served by delivering the 
 same at the house of the party, or to him in 
 person. 
 
 But where personal service is Impossible, 
 through the non-residence or absence of a party, 
 constructive service by publication is, in some 
 cases, permitted, and is effected by publiBbing tbe 
 paper to be served in a newspaper designated in 
 the order of court and by mailing a copy of the 
 paper to the last known address of the party. 
 
 Substituted service is a constructive service 
 made upon some recognized representative, as 
 where a statute requires a foreign insurance 
 company doing husiness in the State of Massa- 
 chusetts to appoint the insurance commissioner 
 of the state their attorney, " upon whom all law- 
 ful processes in any proceeding against the com- 
 pany may be served with like effect as if the 
 company existed in that commonwealth;" 16 
 Am. L. Rev. 431. Service by publication is in 
 general held valid only in proceedings in rem, 
 where the subject-matter is within the jurisdic- 
 tion of the court, as in suits in partition, attach- 
 ment, for the foreclosure of mortgages, and the 
 enforcement of mechanics' liens. In many of 
 the states statutes have been passed to meet this 
 class of cases. In purely personal actions, service 
 by publication is invalid, upon the well-settled 
 principle that the person or thing proceeded 
 against must be within the jurisdiction of the 
 court entertaining the cause of action. 27 Am. 
 L. Eeg. 93 ; 95 U. S. 704 ; Story, Confl. L. § 539. 
 Some states, however, have gone ,bo far as to allow 
 suits in chancery to be maintained against non- 
 residents upon constructive service of process hy 
 publication ; 15 Am. L. Reg. 2. But proceedings 
 in divorce are generally recognized as w™'!'?/" 
 exception to the rule ; Bish. Mar. & D. § 15» «• 
 aeq. See Divorce ; Foreign Judgment ; u 
 Wall. 329. 
 
SERVICE OP AN HEIR 
 
 631 
 
 SERVITUS 
 
 When the service of a writ is prevented by 
 the act of the party on whom it is to be 
 served, it will, in general, be sufficient if the 
 officer do everything in his power to serve it ; 
 1 Mann. & G. 238. 
 
 SERVICE OP AN HEIR. An old 
 form of Scotch law, fixing the right and char- 
 acter of an heir to the estate of his ancestor. 
 Bell, Diet. Abolished in 1874. 
 
 SERVIENT. In Civil Law. A term 
 applied to an estate or tenement by or in re- 
 spect of which a servitude is due to another 
 estate or tenement. 
 
 SERVITORS OP BILLS. Such ser- 
 vants or messengers of the marshal belonging 
 to the king's bench as were heretofore sent 
 abroad with bills or writs to summon men to 
 that court, being now called "tipstaves." 
 Blount; 2 Hen. IV. c. 23. 
 
 SERVITIUM LIBERUM. See Fbee- 
 
 HOLD. 
 
 SERVITIUM REGALE. Royal ser- 
 vice, or the prerogatives that within a royal 
 manor, belonged to the lord of it, viz. : 
 power of judicature in matters of property ; 
 of life and death in felonies and murders ; 
 right to waifs and estrays ; remitting of money ; 
 assize of bread and beer, and weights and 
 measures. Whart. Diet. 
 
 SERVITUDE. In Civil Law. The 
 subjection of one person to another person, or 
 of a person to a thing, or of a thing to a per- 
 son, or of a thing to a thing. 
 
 A right which subjects a land or tenement 
 to some service for the use of another land or 
 tenement which belongs to another master. 
 Domat, Civ. Law, Cushing's ed. § 1018. 
 
 A mixed servitude is the subjection of per- 
 sons to things, or things to persons. 
 
 A natural servitude is one which arises in 
 consequence of the natural condition or situa- 
 tion oi the soil. 
 
 A personal servitude is the subjection of 
 one person to another : if it consists in the 
 light of property which a person exercises 
 over another, it is slavery. When the sub- 
 jection of one person to another is not slavery, 
 it consists simply in the right of requiring of 
 another what he is bound to do or not to do : 
 this right arises from all kinds of contracts or 
 quasi-contracts. Lois des B&t. p. 1, c. 1, 
 art. 1. • 
 
 A real or predial servitude is a charge laid 
 on an estate for the use and utility of another 
 estate belonging to another proprietor. La. 
 Code, art. 643. When used without any ad- 
 junct, the word servitude means a real or pre- 
 dial servitude. Lois des BS,t. p. 1, e. 1. 
 Real servitudes are divided into rural and 
 urban. 
 
 Rural servitudes are those which are due 
 by an estate to another estate, such as the 
 right of passage over the serving estate, or 
 that which owes the servitude, or to draw 
 water from it, or to water cattle there, or to 
 take coal, lime, and wood from it, and the like. 
 
 Urban servitudes are those which are esta- 
 blished over a building for the convenience 
 of another, such as the right of resting the 
 joists in the wall of the serving building, of 
 opening windows which overlook the serving 
 estate, and the like. Dalloz, Diet. Servi- 
 tudes. 
 
 This term is used as a translation of the Latin 
 term seitiitus In the French and Scotch Law, 
 Dalloz, Diet. ; Faterson, Comp., and by many 
 common-law writers, 3 Kent. 434; Washb. 
 Easem., and in the Civil Code of Louisiana. 
 Service Is used by Wood, Taylor, Harris, Cow- 
 per, and Cusbing in his translation of Domat. 
 Much of the common-law doctrine of easements 
 is closely analogous to, and probably in part de- 
 rived from, the civil-law doctrine of servitudes. 
 
 SERVITUS (Lat.). In Roman Law. 
 
 Servitude ; slavery ; a state of bondage ; a 
 disposition of the law of nations by which, 
 against common right, one man has been sub- 
 jected to the dominion of another. Inst. 1. 
 2. 3 ; Bractou, 4 6; Co. Litt. 116. 
 
 A service or servitude ; a burden imposed 
 by law, or the agreement of parties, upon one 
 estate for the advantage of another, or for the 
 benefit of another person than the owner. 
 
 Servitus actus, a right of way on horseback 
 or in a carriage. Inst. 2. 3. pr. 
 
 Servitus altius non tollendi, a servitude 
 preventing the owner of a house from build- 
 ing higher than his neighbor. Inst. 2. 3. 4 ; 
 Paterson, Comp. 
 
 Servitus aqua ducendcE, a right of leading 
 water to one's own land over that of another. 
 Inst. 2. 3. pr. 
 
 Servitus aquK educendce, a right of con- 
 ducting water from one's own land unto a 
 neighbor's. Dig. 8. 3. 29. 
 
 Servitus aquce hauriendoe, a right of draw- 
 ing water from another's spring or well. 
 Inst. 2. 3. 2. 
 
 Servitus cloacce mittendm, a right of having 
 a sewer through a neighbor's estate. Dig. 8. 
 1. 7. 
 
 Servitus fumi immitendi, a right of con- 
 ducting smoke or vapor through a neighbor's 
 chimney or over his ground. Dig. 8. 5. 8. 
 
 Servitus itineris, a right of way on horse- 
 back or in a carriage. This includes a servi- 
 tus actus. Inst. 2. 3. 
 
 Servitus luminum, a right to have an open 
 place for receiving light into a chamber or 
 other room. Domat, 1. 1. 4; Dig. 8. 2. 4. 
 
 Servitus oneris ferendi, a, servitude of sup- 
 porting a neighbor's building. 
 
 Servitus pascendi, a right of pasturing 
 one's cattle on another's lands. Inst. 2. 3. 2. 
 
 Servitus pecoris ad aquam adpulsam, a ' 
 right of driving one's cattle on a neighbor's 
 land to water. 
 
 Servitus prcedii rustici, a rural servitude. 
 
 Servitus prcedii urbani, an urban servi- 
 tude. 
 
 Servitus prmdiorum, a servitude on one 
 estate for the benefit of another. See Pk^- 
 
 DliE. 
 
 Servitus projiciendi, a right of building a 
 
SERVUS 
 
 632 SESSIONS OF THE PEACE 
 
 projection into the open space belonging to a 
 neighbor. Dig. 8. 2. 2. 
 
 Servitus prospectus, a right of prospect. 
 Dig. 8. 2. 15. This may be either to give 
 one a free prospect over his neighbor's land, 
 or to prevent a neighbor from having a pros- 
 pect over one's own land. Domat, 1. 1. 6. 
 
 Servitus stillicidii, a right of having the 
 water drip from the eaves of one's house 
 upon a neighbor's house or ground. 
 
 Servitus tigni immittendi, a right of insert- 
 ing beams in a neighbor's wall. Inst. 2. 3. 
 1. 4; Dig. 8. 2. 2. 
 
 Servitus vice, a right of way on foot or 
 horseback, or with a loaded beast or wagon, 
 over a neighbor's estate. Inst. 2. 3. 
 
 See, generally, Inst. 2. 3 ; Dig. 8. 2 ; 
 Diet, de Jur.; Domat. Civ. Law ; Bell, 
 Diet.; Washb. Easem.; Gale, Easm., 
 
 SERVUS (Lat.). A slave. 
 
 The institution of slavery is traced to the re- 
 motest antiquity. It is referred to in the poems 
 of Homer ; and all the Greek phlloeophers men- 
 tion it without the slightest censure. Aristotle 
 justified it on the ground of a diversity of race. 
 The Roman jurists rest the institution of slavery 
 on the law of nations : in a fragment of Floren- 
 tlnus copied in the Institutes of Justinian, servi- 
 tude is defined, Servitus autem est eonstitutio 
 juris gentium, qua quis dominio cUieno contra 
 naturam suijicitwr. D. 1. 5. 4. 1 ; Inst. 1. 3. 3. 
 The Romans considered that they had the right 
 of killing their prisoners of war, manu eapti ; 
 and that by preserving their lives, servati, they 
 did not abandon hut only postponed the exercise 
 of that right. Such was, according to their 
 ideas, the origin of the right of the master over 
 his slave. Hence the etymology of the words 
 aervi, from servati, and maneipia, from manu 
 eapti, by which slaves were designated. It is, 
 however, more simple and correct to derive the 
 word servus from servire. Inst. 1. 8. 3. Chil- 
 dren born of a woman who was a slave followed 
 the condition of their mother ; servi nascuntur 
 aut f/unt. 
 
 A free person might be reduced to slavery 
 in various ways : by captivity, ex captivitate. 
 The Soman who was taken prisoner by the 
 enemy lost all his rights as a citizen and a 
 freedman : thus, when Regulus was brought 
 to Rome by the Carthaginian ambassadors he 
 refused to take his seat among the senators, 
 saying that he was nothing but a slave. But if 
 he had made his escape and returned to Rome, 
 all his rights would have been restored to him 
 by the jus postliminii ; and the whole period 
 of his captivity would have been effaced, and 
 he would have been considered as if he had 
 never lost his freedom. According to the 
 law of the Twelve Tables, the insolvent 
 debtor became the slave of his creditor, 
 by a judgment rendered in a proceeding 
 called manus injectio, — one of the four leges 
 actiones. The thief taken in the act of 
 stealing, or while he was carrying the thing 
 stolen to the place where he intended to con- 
 ceal it, was deprived of his freedom, and be- 
 came a slave. So was a person, who, for the 
 purpose of defrauding the state, omitted to 
 have his name inscribed on the table of the 
 
 census. The illicit intercourse of a free 
 woman with a slave without the permission of 
 his master, the sentence to a capital punish- 
 ment and the sentence to work perpetually in 
 the mines, — in metallum da(i,— made the 
 culprit the slave as his punishment (term 
 poena). The ingratitude of the emancipated 
 slave towards his patron or former master and 
 the fraud of a freeman who had suffered him- 
 self to be sold by an accomplice (after having 
 attained the age of twenty years) in order to 
 divide the price of the sale, were so punished. 
 
 Liberty being inalienable, no one could 
 sell himself; but in order to perpetrate a 
 fraud on the purchaser, a freeman was offered 
 for sale as a slave and bought by an innocent 
 purchaser: after the price had been paid 
 and divided between the confederates, the 
 pretended slave claimed and, of course, ob- 
 tained his freedom. To remedy this evil and 
 punish this fraud, a senatus consultum issued 
 under Claudius provided that the person 
 who had thus suffered himself to be sold 
 should lose his liberty and (temain a slave. 
 In the social and political organization slaves 
 were not taken into consideration ; they had 
 no status. Quod attinet ad jus civile, servi 
 pro nullis habentur. Servitutem mortalitati 
 fere comparamus. With regard to the master 
 there was no distinction in the condition of 
 slaves : they were all equally subject to the 
 domina potestas. But the master sometimes 
 established a distinction between the servi 
 vicarii and the servi ordinarii : the former 
 exercised a certain authority over the latter. 
 But there was a marked difference between 
 those slaves of whom we have been speaking 
 and the coloni censili, adscripti, and fn'iu- 
 tarii, who resembled the serfs of the middle 
 ages. 1 Ortolan, 27 et seq. ; 1 Etienne, 68 
 et seq. ; Lagrange, 93 et seq. See Slavk ; 
 Slavery. 
 
 SESSION. The time during which a 
 legislative body, a court, or other assembly, 
 sits for the transaction of business : as, a ses- 
 sion of congress, which commences on the day 
 appointed by the constitution, and ends when 
 congress finally adjourns before the commence- 
 ment of the next session ; the session of a 
 court, which commences at the day appointed 
 by law, and ends when the court finally rises. 
 A term. 
 
 SESSION COURT. See Couet op Ses- 
 sion. 
 
 SESSION LATVS. A term used to des- 
 ignate the printed statutes as passed at the 
 successive legslative sessions of the various 
 states. In Pennsylvania they are usually 
 called pamphlet laws. 
 
 SESSIONS OP THE PEACE. In 
 English Law. Sittings of justices of the 
 peace for the execution of the powers which 
 are confided to them as such. _ . 
 
 Petty sessions (or petit sessions) are sittings 
 held by one or more justices for the trial of 
 minor offences, admitting to bail prisoners 
 accused of felony, and the like purposes. 
 
SESSIONAL ORDERS 
 
 633 
 
 SETTLE 
 
 When sitting for purposes of preliminary 
 inquiry, the public cannot claim admittance ; 
 but it is otherwise when sitting for purposes 
 of adjudication. 
 
 Special sessions are sittings of two or more 
 justices on a particular occasion for the exer- 
 cise of some given branch of their authority, 
 upon reasonable notice given to the other 
 magistrates of the hundred or other division 
 of the county, city, etc., for which they are 
 convened. See stat. 7 & 8 Vict. c. 33. 
 
 The counties are distribfeted into divisions, 
 and authority given by various statutes to 
 the justices acting for the several divisions 
 to transact different descriptions of business, 
 such as licensing alehouses, or appointing 
 overseers of the poor, surveyors of the high- 
 ways, etc., at special sessions. 3 Steph. 
 Com. 43, 44. 
 
 General sessions of the peace are courts of 
 record, holden before the justices, whereof 
 one is of the qttorum, for execution of the 
 general authority given to the justices by the 
 commission of the peace and certain acts of 
 parliament. 
 
 The only description of general sessions 
 now usually held is the court of general 
 quarter sessions of the peace ; but m the 
 county of Middlesex, besides the four quar- 
 ter sessions, four general sessions are held in 
 the intervals, and original intermediate ses- 
 sions occasionally take place. They may be 
 called by any two justices in the jurisdiction, 
 one being of the quorum, or by the custos 
 rotulorum and one justice, but not by onejus- 
 tice or the custos rotulorum alone. 
 
 General quarter sessions of the peace. See 
 CouKT OP General Quabter Sessions 
 OF THE Peace. 
 
 SESSIONAL ORDERS. Certain or- 
 ders agreed to by both houses of parliament 
 at the commencement of each session, and in 
 force only during that session. May, P. L. 
 
 SET ASIDE. To annul ; to make void : 
 as, to set aside an award. 
 
 When proceedings are irregular, they may 
 he set aside on motion of the party whom 
 they injuriously affect. 
 
 SET OF EXCHANGE. The different 
 parts of a bill of exchange, taken together. 
 Each part is a perfect instrument by itself; 
 but the parts are numbered successively, and 
 upon payment of any one the others become 
 useless. See Chitty, Bills, 175 ; Pars. Notes 
 &B. 
 
 SBT-OPP. In Practice. A demand 
 which a defendant makes against the plain- 
 tiff in the suit for the purpose of liquidating 
 the whole or a part of his claim. See 7 
 Fla. 329. 
 
 A set-off was unknown to the common 
 law, according to which mutual debts were 
 distinct, and inextinguishable except by ac- 
 tual payment or release ; 1 Rawie, 293 ; 
 Babingt. Set^Off, 1. 
 
 The statute 2 Geo. IL c. 22, which has 
 been generally adopted in the United States, 
 
 with some modifications, in cases of mutual 
 debts, however, allowed the defendant to set 
 his debt against the other, either by pleading 
 it in bar, or giving it in evidence, when pro- 
 per notice had been given of such inten- 
 tion, under the general issue. The sta- 
 tute, being made for the benefit of the defen- 
 dant, is not compulsory; 8 Watts, 39; the 
 defendant may waive his right, and bring a 
 cross-action against the plaintiff; 2 Camp. 
 594; 9 Watts, 179. 
 
 It seems, however, that in some cases of 
 intestate estates and of insolvent estates, per- 
 haps owing to the peculiar wording of the 
 law, the statute has been held to operate 
 on the rights of the parties before action 
 brought or an act done by either of them ; 
 2 Rawle, 293 ; 3 Binn. 135 ; Bacon, Abr. 
 Bankrupt (K). See 7 Gray, 191, 425. 
 
 Set-off takes place only in actions on con- 
 tracts for the payment of money : as, as- 
 sumpsit, debt, and covenant ; and where the 
 claim set off grows out of a transaction inde- 
 pendent of the contract sued on; 31 Conn. 
 398. A set-off is not allowed in actions aris- 
 ing ex delicto; as, upon the case, trespass, 
 replevin, or detinue ; Bull. N. P. 181 ; 4 E. 
 D. Sm. 162. 
 
 In Pennsylvania, if it appear that the 
 plaintiff is overpaid, then defendant has a cer- 
 tificate of the amount due to him, which is 
 recorded with the verdict as a debt of record ; 
 Purd. Dig. 487 ; 10 Penn. 436. But the 
 plaintiff may suffer a nonsuit, notwithstand- 
 ing a plea of set-off; 7 Watts, 496. 
 
 The matters which may be set off may be 
 mutual liquidated debts or damages ; but un- 
 liquidated damages cannot be set off; 3 Bosw. 
 560; 34 Penn. 239 ; 34 Ala. N. s. 659 ; 20 
 Tex. 31; 2 Head, 467; 8 Iowa, 163; 1 
 Blackf. 394; 6 Halst. 397; 5 Wash. C. C. 
 232. The statutes refer only to mutual un- 
 connected debts ; for at common law, when 
 the nature of the employment, transaction, or 
 dealings necessarily constitutes an account 
 consisting of receipts and payments, debts and 
 credits, the balance only is considered to be 
 the debt, and therefore in an action it is not 
 necessary in such cases either to plead or give 
 notice of set-off; 4 Burr. 2221. 
 
 In general, when the government is plain- 
 tiff, no set- off will be allowed ; 9 Pet. 319 ; 4 
 Dall. 303. See 9 Cra. 313 ; 1 Paine, 156. 
 Otherwise when an act of congress authorizes 
 such set-off; 9 Cra. 213. 
 
 Judgments in the same rights may be set 
 off against each other, at the discretion of the 
 court ; 3 Bibb, 233 ; 3 Watts, 78 ; 3 Halst. 
 172; 18 Tex. 541; 30 Ala. N. s. 470; 4 
 Ohio, 90; 7 Mass. 140, 144; 8 Cow. 126. 
 See Montague, Babington, Set^Off. De- 
 falcation; Lien. 
 
 SETTLE. To adjust or ascertain ; to pay. 
 
 Two contracting parties are said to settle 
 an account when they ascertain what is justly 
 due by one to the other ; when one pays the 
 balance or debt due by him, he is said to 
 settle such debt or balance. 11 Ala. N. s. 419. 
 
SETTLEMENT 
 
 634 
 
 SEVEEANCE 
 
 SETTLEMENT. A residence under 
 such circumstances as to entitle a person to 
 support or assistance iu case of becoming a 
 pauper. 
 
 It is obtained in various ways, to wit : by 
 hirth ; by the legal settlement of the father, 
 in the case of minor children ; by marriage ; 
 by continued residence ; by the payment of 
 requisite taxes ; by the lawful exercise of 
 a public office ; by hiring and service for a 
 specified time ; by serving an apprenticeship; 
 and perhaps some others, which depend upon 
 the local statutes of the different states. See 
 1 Bla. Com. 363 ; 1 Dougl. 9 ; 6 S. & E. 
 103, 565; \0 id. 179. 
 
 In Contracts. An Agreement by which 
 two or more persons who have dealings to- 
 gether so far arrange their accounts as to 
 ascertain the balance due from one to the 
 other ; payment in full. 
 
 The conveyance of an estate for the benefit 
 of some person or persons. 
 
 Settlements of the latter class are usually 
 made on the prospect of marriage, for the 
 benefit of the married pair, or one of them, 
 or for the benefit of some other persons ; as 
 their children. They may be of either per- 
 sonal or real estate. Such settlements vest 
 the property in trustees upon specified terms, 
 usually for the benefit of the husband and 
 wife during their joint lives, and then for the 
 benefit of the survivor for life, and afterwards 
 for the benefit of children. 
 
 Ante-nuptial agreements of this kind will 
 be enforced in equity by a specific perform- 
 ance of them, provided they are fair and 
 valid and the intention of the parties is con- 
 sistent with the principles and policy of law ; 
 8 Blackf. 284 ; 4 R. I. 276 ; 28 Penn. 73 ; 
 
 7 Pet. 348 ; 9 How. 196. Settlements after 
 marriage, if made in pursuance of an agrecr 
 ment in writing entered into prior to the mar- 
 riage, are valid both against creditors and pur- 
 chasers ; 22 Ga. 402. 
 
 When made without consideration, after 
 marriage, and the property of the husband is 
 settled upon his wife and children, the settle- 
 ment will be valid against subsequent credit- 
 ors if at the time of the settlement being 
 made he was not indebted ; 8 Wheat. 229 ; 4 
 Mas. 443; 21 N. H. 34; 28 Miss. 717; 25 
 Conn. 154 ; but if he was then indebted it 
 will be void as to the creditors existing at the 
 time of the settlement ; 3 Johns. Ch. 481 ; 
 16 Barb. 136 ; 5 Md. 68 ; 13 B. Monr. 496 ; 
 
 8 Wheat. 229 ; unless in cases where the hus- 
 band received a fair consideration in value for 
 the thing settled, so as to repel the presump- 
 tion of fraud ; 2 Ves. 16 ; 10 id. 139 ; 6 Ind. 
 121 ; 28 Ala. N. s. 432 ; 7 Pick. 533 ; 4 Mas. 
 443 ; see Wms. on Settlement of R. E. 
 
 SETTLEMENT, DEED OF. A deed 
 made for the purpose of settling property, i.e. 
 arranging the mode and extent of the enjoy- 
 ment thereof. The party who settles pro- 
 perty is called the settler; Brown. See 
 Settlement. 
 
 SETTLING DAY. The day on which 
 transactions for the " account' ' are made up on 
 the Stock Exchange. Whart. Diet. The 
 settling days for English and foreign stocks 
 and shares occur twice a month, the middle 
 and the end. Those for consols are once in 
 every month, generally near the commence- 
 ment of the month ; Moz. & W. A conspiracy 
 to obtain a settling day by fraudulent means 
 in order to defraud buyers of shares or a 
 conspiracy by fraudulent means to raise or 
 lower the price <« shares with intent to de- 
 fraud buyers or sellers is an indictable offence ■ 
 1 Q. B. D. 730 ; 3 M. & S. 67 ; 2 Lind. Parti 
 *711, 816. 
 
 SETTLING ISSUES. In English 
 Practice. Deciding the forms of the issues 
 to be determined in a trial, according to the 
 provisions of the Judicature Act of 1875 
 Sohed. I. Ord. 26. 3 Steph. Com. 510. ' 
 
 SEVER. In Practice. To separate ; to 
 insist upon a plea distinct from that of other 
 co-defendants. 
 
 SEVERAL. Separate; distinct. A 
 several agreement or covenant is one entered 
 into by two or more persons separately, ea«h 
 binding himself for the whole ; a several ac- 
 tion is one in which two or more persons are 
 separately charged ; a several inheritance is 
 one conveyed so as to descend or come to two 
 persons separately by moieties. Several is 
 usually opposed to joint. SeeCoNTKACi; 
 Covenant ; Pakties. 
 
 SEVERAL FISHERY. See Fishery. 
 
 SEVERAL ISSUES. This occurs where 
 there is more than one issue involved in a case. 
 8 Steph. Com. 560. 
 
 SEVERALTY, ESTATE IN. An es- 
 tate which is held by the tenant in his own 
 right only, without any other being joined or 
 connected with him in point of interest during 
 the continuance of his estate. 2 Bla. Com. 
 179. 
 
 SEVERANCE. The separation of a part 
 of a thing from another : for example, the 
 separation of machinery from a mdl is a 
 severance, and in that case the machinery, 
 which while annexed to the mill was reiJ 
 estate, becomes by the severance personalty, 
 unless such severance be merely temporary. 8 
 Wend. 587. 
 
 In Pleading. When an action is brought 
 in the name of several plaintiffs, in which 
 the plaintiff's must of necessity join, and one 
 or more of the persons so named do not ap- 
 pear, or make default after appearance, the 
 other may have judgment of severance, or, 
 as it is technically called, judgment ad sequen- 
 dum solum. 
 
 But in personal actions, with the exception 
 of those by executors, and of detinue for 
 charters there can be no summons and sever- 
 ance; Co. Litt. 139. 
 
 After severance, the party severed can 
 never be mentioned in the suit nor derive any 
 advantage from it. 
 
SEWER 
 
 635 SHELLEY'S CASE, RULE IN 
 
 When there are several defendants, each 
 of them may use such plea as he may think 
 proper for his own defence ; and they may 
 join in the same plea, or sever, at their dis- 
 cretion ; Co. Litt. 303 a ; except, perhaps, 
 in the case of dilatory pleas ; Hob. 245, 250. 
 But when the defendants have once united 
 in the plea they cannot afterwards sever at 
 the rejoinder, or other later stage of the 
 pleading. See, generally, Brooke, Abr. 
 Suwm. and Sev. ; 2 Rolle, 488 ; Archb. Civ. 
 PI. 59. 
 
 Of Estates. The destruction of any one 
 of the unities of a joint tenancy. It is so 
 called because the estate is no longer a joint 
 tenancy, but is severed. 
 
 A severance may be effected in various 
 ways, namely : by partition, which is either 
 voluntary or compulsory ; by alienation of 
 one of the joint tenants, which turns the 
 estate into a tenancy in common ; by the 
 purchase or descent of all the shares of the 
 joint tenants, so that the whole estate becomes 
 vested in one only. Comyns, Dig., Estates 
 by Grant (K 5) ; 1 Binn. 175. 
 
 SEWER (L. Lat. sewera, severd). A 
 fresh- water trench or little river, encompassed 
 with banks on both sides, to carry the water 
 into the sea and thereby preserve the lands 
 against inundation, etc. See Callis, Sew. 80, 
 99; Cowel. Properly, a trench artificially 
 made for the purpose of carrying water into 
 the sea, river, or some other place of reception. 
 Crabb, R. P. s. 113; 110 Mass. 433. A 
 ditch or trench through marshy places to 
 carry off water. Spelman, Gloss. See 
 Washb. Easem. 
 
 SEX. The physical difference between 
 male and female in animals. 
 
 In the human species the male is called 
 man, and the female woman. Some human 
 beings whose sexual organs are somewhat 
 imperfect have acquired the name of herma- 
 phrodite. 
 
 In the civil state the sex creates a difference 
 among individuals. Women cannot generally 
 he elected or appointed to offices, or service 
 in public capacities. In this our law agrees 
 with that of other nations. The civil law ex- 
 cluded women from all offices civil or public : 
 fcemincE ah omnibus officiis civilibus vel puh- 
 licis remotce sunt; Dig. 50. 17. 2. The 
 principal reason of this exclusion is to en- 
 courage that modesty which is natural to the 
 female sex, and which renders them unquali- 
 fied to mix and contend with men ; the pre- 
 tended weakness of the sex is not probably 
 the true reason. Pothier, Des Personnes, tit. 
 5; Wood. Inst. 12; La. Civ. Code, art. 24; 
 1 Beck, Med. Juris. 94. 
 
 SEXTBRY LANDS. Lands given to a 
 church for maintenance of a sexton or sacris- 
 tan. Cowel. 
 
 SHAM PLEA. One entered for the 
 mere purpose of delay ; it must be of a mat- 
 ter which the pleader knows to be false : as, 
 judgment recovered, that is, that judgment 
 
 has already been recovered by the plaintiff 
 for the same cause of action. 
 
 These sham pleas are generally discouraged, 
 and in some cases are treated as a nullity ; 1 
 B. & Aid. 197 ; 5 id. 750 ; 1 B. & C. 286 ; 
 Archb. Civ. PI. 249 ; 1 Chitty, PI. 401. 
 
 Under the Judicature Act of 1875, Sched. I. 
 Ord. 27, r. 1, the court may order to be struck 
 out or amended any matter in the pleadings 
 which may tend to prejudice, embarrass, or de- 
 lay the fair trial of the action ; Moz. & W. 
 
 SHARE. A portion of any thing. Some- 
 times shares are equal, at other times they 
 are unequal. 
 
 In companies and corporations the whole of 
 the capital stock is usually divided into equal 
 portions, called shares. Shares in public com- 
 panies have sometimes been held to be real 
 estate, but most usually they are considered as 
 personal property. See Cokpo ration ; Peh- 
 SONAL Pkopekty; Stock ; Stockholdek. 
 The proportion which descends to one of 
 sevejal children from his ancestor is called a 
 share. The term share and share alike sig- 
 nifies in equal proportions. See Purpart. 
 
 SHAREHOLDER. See Stockhol- 
 der. 
 
 SHEEP. A wether more than a year 
 old. 4 C. & P. 216. 
 
 SHELLEY'S CASE, RULE IN. 
 
 "When the ancestor, by any gift or convey- 
 ance, taketh an estate of freehold, and in the 
 same gift or conveyance an estatj is limited, 
 either mediately or immediately, to his heirs 
 in fee or in tail, the heirs are words of limit- 
 ation of the estate, and not words of pur- 
 chase." 1 Co. 104. 
 
 This rule has heen the subject of much com- 
 ment. It is given by Mr. Preston, Estates, pp. 
 263, 419, as follows : When a person takes an 
 estate of freehold, legally or equitably, under a 
 deed, will, or other writing, and in the same in- 
 strument there is a limitation by way of remain- 
 der, either with or without the Interposition of 
 another estate, of the same legal or equitable 
 quality, to his heirs, or heirs of his body, as a 
 class of persons to take in succession from gener ■ 
 ation to generation, the limitation to the heirs 
 entitles the ancestor to the whole estate. See 15 
 B. Monr. 282 ; Hargr. Law Tracts, 489, 551 ; 2 
 Kent, 214. 
 
 If the limitation be to heirs of the body, 
 he takes an estate tail ; if to heirs generally, 
 a fee-simple; 1 Day, 299 ; 2 Yeates, 410. 
 
 It does not apply where the ancestor's es- 
 tate is equitable and that of the heirs legal ; 1 
 Curt. C. C. 419. 
 
 The rule in Shelley's Case was adopted as a 
 part of the common law of this country, and in 
 very many of the states still prevails. It has 
 been abolished in the following states, and In the 
 following order : Massachusetts, New Jersey (as 
 to devises of real property), Mississippi (as to 
 real property), New York, Virginia, Kentucky, 
 Ohio (as to wills) , Maine, Michigan, Tennessee, 
 Wisconsin, Minnesota, Connecticut, Missouri, 
 Alabama, and New Hampshire (as to wills) . This 
 subject has been exhaustively treated in Penn- 
 sylvania, and the numerous decisions will be 
 found analyzed and arranged in tabular form in 
 
SHERIFF 
 
 636 
 
 SHERIFF 
 
 an essay by J. P. Gross, Esq. (Harrisburg, 
 1877.) The rule has been held applicable to in- 
 struments in which the words, " heir" or 
 "heirs;" 8 W. & S. 38; "issue;" 3W. & 8. 
 160; 30 Penn. 158; 45 Penn. 179; "child" or 
 " chUdren ;" 7 W. & 8. 288 ; 50 Penn. 483 ; 
 " son," or " daughter," 8 8. & B. 433 ; 70 Penn. 
 335; "next of kin;" "offspring;" 36 Penn. 
 117 ; " descendants," and similar expressions are 
 used in the technical sense of the word heirs. 
 Chief Justice Gibson states the operation of the 
 rule as follows : " It operates only on the inten- 
 tion (of the devisor) when It has been ascer- 
 tained, not on the meaning of the words used to 
 express it. The ascertainment Is left to the or- 
 dinary rules of construction peculiar to wills. 
 . . . Itgives the ancestor an estate for life, in 
 the first Instance, and, by force of the devise to 
 his heirs, general or special, the inheritance 
 also, by conferring the remainder on him, as the 
 stock from which alone they can inherit;" 
 13 Penn. 344, 354. Although a fee is given in the 
 first part of a will, it may be restrained by sub- 
 sequent words, so as to convert it into a life es- 
 tate ; 86 Penn. 386. See 75 Penn. 339 ; 83 id. 
 242, 377 ; 87 id. 144 ; id. 248 ; 91 id. 30 ; Hayes on 
 Est. Tail, *53. 
 
 SHERIFF (Sax. sct/re, shire, reve, 
 keeper). A county officer representing the 
 executive or administrative power of the state 
 within his county. 
 
 The office is said by Camden to have been 
 created by Alfred when he divided England 
 into counties ; but Lord Coke is of opinion that 
 it is of still greater antiquity, and that it existed 
 in the time of the Komans, being the deputy of the 
 earl (^comes^ , to whom the custody of the shire 
 was originally committed, and hence known as 
 vice-comes ; Camden, 156 ; Co. Litt. 168 a ; Dalt. 
 Sheriff, 5. 
 
 The selection of sheriffs in England was 
 formerly by an election of the inhabitants of 
 the respective counties, except that in some 
 counties the office was heriditary, and in Mid- 
 dlesex the shrievalty was and still is vested 
 by charter in the city of London. But now 
 the lord chancellor, in conjunction with the 
 judges of the courts at Westminster, noml 
 nates suitable persons for the office, and the 
 king appoints. See 22 & 23 Vict. c. 21 § 42. 
 In this country the usual practice is for the 
 people of the several counties to elect sheriffs 
 at regular intervals, generally of three years, 
 and they hold subject to the right of the gov- 
 ernor to remove them at any time for good 
 cause, in the manner pointed out by law. Be- 
 fore entering upon the discharge of their 
 duties, they are required to give bonds to the 
 people of the state, conditioned for the faith- 
 ful performance of their duties, without fraud, 
 deceit, or oppression. 
 
 It is the sheriff's duty to preserve the peace 
 within his bailiwick or county. To this end 
 he is the first man within the county, and may 
 apprehend and commit to prison all persons 
 who break or attempt to break the 
 ■peaice, or may bind them over in a 
 recognizance to keep the peace. He is 
 bound, ex officio, to pursue and take all trait- 
 ors, murderers, felons and rioters ; has the 
 safe-keeping of the county jail, and must de- 
 fend it against all rioters ; and for this, as well 
 
 as for any other purpose, in the execution of 
 his duties he may_ command the inhabitants of 
 the county to assist him, which is called the 
 posse cumitatus. And this summons every 
 person over fifteen years of age is bound U> 
 obey, under pain of fine and imprisonment- 
 Dalt. Sheriff, 355 ; 2d Inst. 454. ' 
 
 In his ministerial capacity he is bound to 
 execute, within his county, all process that 
 issues from the courts of justice, except 
 where he is a party to the proceeding, fn 
 which case the coroner acts in his stead. On 
 mesne process he is to execute the writ, to 
 arrest and take bail ; when the cause comes 
 to trial he summons and returns the jury, and 
 when it is determined he carries into effect 
 the judgment of the court. In criminal cases 
 he also arrests and imprisons, returns the 
 jury, has the custody of the prisoner, and exe- 
 cutes the sentence of the court upon him, 
 whatever it may be. 
 
 As bailiff to the chief executive, it is his 
 business to seize, on behalf of the state, all 
 lands that devolve to it by attainder or 
 escheat, levy all fines and ibrfeitures, and 
 seize and keep all waifs, wrecks, estrays, and 
 the like ; Dalt. Sheriff, c. 9. 
 
 He also possesses a judicial capacity, and 
 may hold a court and summon a jury for cer- 
 tain purposes; this jurisdiction, in this re- 
 spect, is at common law quite extensive. 
 This branch of his powers, however, is cir- 
 cumscribed in this country by the statutes of 
 the several states, and is generally confined 
 to the execution of writs of inquiry of dam- 
 ages, and the like, sent to him from the supe- 
 rior courts of law ; 1 Bla. Com. 389. 
 
 He has no power or authority out of his 
 own county, except when he is commanded 
 by a writ of habeas corpus to carry a prisoner 
 out of his county ; and then if he conveys 
 him through several counties the prisoner is 
 in custody of the sheriffs of each of the coun- 
 ties through which he passes; Plowd. 37o; 
 2 Rolle, 1 63. If, however, a prisoner escapes 
 and flies into another county, the sheriff or 
 his officers may, upon fresh pursuit, take him 
 again in such county. But he may do mere 
 ministerial acts out of his county, if within 
 the state, such as making out a panel or re- 
 turn, or assigning a baQ-bond, or the like; 
 2 Ld. Raym. 1465 i 2 Stra. 727; Dalt. 
 Sheriff, 22. 
 
 To assist him in the discharge of his various 
 duties, he may appoint an under-sheriff, and 
 as many general or special deputies as the 
 public service may require, who may dis- 
 charge all the ordinary ministerial duties of 
 the office, such as the service and return of 
 process and the like, but not the execution of 
 a writ of inquiry, for this is in the nature of a 
 judicial duty, which may not be delegated. 
 All acts of the under-sheriff or of the depu- 
 ties are done in the name of the sheriff, who 
 is responsible for them although such acts 
 should amount to a tresspass or an extortion 
 of the officer ; for which reason he usually 
 takes bonds from all his subordinates for the 
 
SHERIFF-DEPUTE 
 
 637 
 
 SHIP 
 
 faithful performance of their duties; Cro. 
 Eliz. 294 ; Dougl. 40. _ 
 
 The sherifi' also appoints a jailer, who is 
 usually one of his deputies, and has two kinds 
 of jails, one for debtors, which he may ap- 
 point in any house within his bailiwick, and 
 the other for felons, which is the common 
 jail of the county. The jailer is responsible 
 for the escape of any prisoner committed to 
 his charge, and is bound to have sufficient 
 force at his disposal to prevent a breach of 
 the prison by a mob or otherwise ; and 
 nothing will excuse him but an act of God 
 or the public enemy. He must not be guilty 
 of cruelty, or of putting debtors in irons, or 
 the like, without sufficient cause ; but he may 
 defend himself at all hazards if attacked. In 
 a case where a prisoner, notwithstanding his 
 remonstrances, was confined by the jailer in 
 a room in which was a person ill with the 
 small-pox, which disease he took and died, it 
 was held to be murder in the jailer ; Viner, 
 Abr. Gaol (A) ; 4 Term, 789 ; 4 Co. 84 ; Co. 
 3d Inst. 34 ; 2 Stra. 856. 
 
 A deputy cannot depute another person to 
 do the duty intrusted to him ; although it is 
 not necessary that his should be the hand that 
 executes the writ: it is sufficient if he is 
 present and assists. In the execution of 
 criminal process, he may, after demanding ad- 
 mittance, break open the outer door of a 
 house ; but in civil actions he may not forci- 
 bly enter a dwelling-house, for every man's 
 house is said to be his castle and fortress, as 
 well for defence as for repose. But a ware- 
 house, store, or barn, or the inner door of a 
 dwelling-house after the officer has peaceably 
 entered, is not privileged. Process or writs 
 of any description may not be served on Sun- 
 day, except in cases of trea.son, felony, or 
 breach of the peace ; nor may the sheriff on 
 that day retake a prisoner who has escaped 
 from custody; 6 Wend. 454; 8 trf. 47 ; 16 
 Johns. 287; 4 Taunt. 619; 8 id. 250; Cro. 
 Eliz. 908 ; Cro. Car. 537 ; W. Jones, 429 ; 
 3B. & P. 223 ; Dalt. Sheriff; Wats. Sheriff. 
 
 SHBHIPP-DEPTJTE. The judge of a 
 Scotch county. Bell. 
 
 SHERIPP-TOOTH. 1. A tenure by the 
 service of providing entertainment for the 
 sheriff at his county courts. 2. An ancient 
 tax on land in Derbyshire. 3. A common 
 tax levied for the sheriff's diet. Cowel, 
 Moz. & W. 
 
 SHBRIPP'S COURT. In Scotch Law. 
 
 A court having an extensive civil and crimi- 
 nal jurisdiction. 
 
 Its judgments, and sentences are subject to 
 review by the court of session and court of 
 justiciary. Alison, Pract. 25 ; Paterson, 
 Comp. 941, n. 
 
 SHERIPP'S COURT IN LOITOON. 
 
 A tribunal having cognizance of personal 
 actions under the London (city) Small Debts 
 Act of 1852, 21 & 22 Vict. c. 157, s. 3. See 
 U& 12 Vict. c. 121 ; 15 & 16 "Vict. c. 127; 18 
 & 19 Vict. c. 122, B. 99 ; 20 & 21 Vict. c. 157. 
 
 The sheriff's court in London is one of the 
 chief of the courts of limited and local juris- 
 diction in London. 3 Steph. Com. 449, note 
 (1) ; 3 Bla. Com. 80, note (jj. 
 
 By the County Courts Act, 1867, 30 & 31 
 Vict. c. 142 ; this court is now classed among 
 the county courts, so far as regards the ad- 
 ministration of justice ; 3 Steph. Com. 293, 
 n. The privileges of the corporation in the 
 appointment of the judge and other officers 
 of the court are not affected by that act ; 
 Mozl. & W. Diet. 
 
 SHERIPP'S JURY. In Practice. A 
 
 jury composed of no determinate number, but 
 which may be more or less than twelve, sum- 
 moned by the sheriff for the purposes of an 
 inquisition or inquest of office. 3 Bla. Com. 
 258. 
 
 SHERIPP'S TOURN. A court of 
 record in England, held twice every year, 
 within a month after Easter and Michael- 
 mas, before the sheriff, in different parts of 
 the county. 
 
 It is, indeed, only the turn or circuit 
 of the sheriff to keep a court-leet in each 
 respective hundred. It is the great court- 
 leet of the county, as the county court is the 
 court-baron ; for out of this, for the ease of 
 the sheriff, was taken the court-leet or view 
 of frank- pledge, q. v. 4 Bla. Com. 273. 
 This court has fallen into desuetude. 
 
 SHERIPPALTY, OR SHRIEVALTY. 
 The office of sheriff. 
 
 SHIFTING USE. Such a use as takes 
 effect in derogation of some other estate, and 
 is limited expressly by the deed or is allowed 
 to be created by some person named in the 
 deed. Gilb. Uses, 152, n. ; 2 Washb. R. P. 
 284. 
 
 For example, a feoffment in fee is made to 
 the use of W and his heirs till A pays £40 to 
 W, and then to the use of A and his heirs. 
 A very common application is in the case of 
 marriage settlements. Wms. R. P. 243. 
 The doctrine of shifting uses furnished a 
 means of evading the principle of law that 
 a fee could not be limited after a fee. See 2 
 Washb. R. P. 284 ; Wms. R. P. 242 ; 1 
 Spence, Eq. Jur. 452 ; 1 Vem. 402 ; 1 Edw. 
 Ch. 34. 
 
 SHILLING. In English Law. The 
 name of an English coin, of the value of one- 
 twentieth part of a pound. In the United 
 States while they were colonies there were 
 coins of this denomination ; but they varied 
 greatly in their value. 
 
 SHIP. A vessel employed in navigation : 
 for example, the terms the ship's papers, the 
 ship's husband, shipwreck, and the like, are 
 employed whether the vessel referred to be a 
 brig, a schooner, a sloop, or a three-masted 
 
 A vessel with three masts, em^oyed in 
 navigation. 4 Wash. C. C. 530. The boats 
 and rigging ; 2 Marsh. Ins. 727 ; together 
 with the anchors, masts, cables^ and such-like 
 
SHIP-BROKER 
 
 638 
 
 SHIP'S PAPERS 
 
 objects, are considered as part of the ship ; 
 Pardessus, ii. 599. 
 
 As to what passes by a bill of sale under 
 the general terra ship, or ship and her appur- 
 tenances, or ship, apparel, and furniture, see 
 1 Pars. Marit. Law, 71 n. 3 ; Apparel. 
 The capacity of a ship is ascertained by its 
 tonnage, or the space which may be occupied 
 by its cargo. 
 
 Ships are of different kinds : as, ships of 
 war and merchant-ships, steamships and sail- 
 ing-vessels. Merchant-ships may be devoted 
 to the carriage of passengers and property, 
 or either alone. When propelled in whole or 
 in part by steam, and emplojed in the trans- 
 portation of passengers, they are subject to 
 inspection and certain stringent regulations 
 imposed by act of congress passed 28th 
 Feb. 1871 ; R. S. §§ 4463-4500; and steam- 
 vessels not carrying passengers are likewise 
 subject to inspection and certain regulations ; 
 R. S. §§ 4399-4462. 
 
 Stringent regulations in regard to the 
 number of passengers to be taken on board 
 of sailing-vessels, and the provisions to be 
 made for their safety and comfort, are also 
 prescribed by R. S. §.4465. 
 
 Numerous acts of congress have been 
 passed from time to time in reference to the 
 registering, enrolling, licensing, employment, 
 and privileges of the vessels of commerce 
 owned in the United States. See R. S. §§ 
 4399, 4500. Navigation, Rules of. 
 
 SHIF-BROEER. One who transacts 
 business relating to vessels and their employ- 
 ment between the owners of vessels and mer- 
 chants who send cargoes. 
 
 SHIP-DAMAGE. In the charter-parties 
 with the English East India Company these 
 words occur : their meaning is, damage from 
 negligence, insufficiency, or bad stowage in 
 the ship. Dougl. 272 ; Abb. Shipp. 204. 
 
 SHIP-MONEY. An imposition formerly 
 levied on port towns and other places for fit- 
 ting out ships ; revived by Charles I. and 
 abolished in the same reign ; 1 7 Car. I. c. 
 14 ; Whart. Diet. 
 
 SHIP'S BILIi. The copy of the bill of 
 lading retained by the master. In case ot a 
 variance between this and the bill delivered 
 to the shipper, the latter must control ; 14 
 Wall. 98. 
 
 SHIPPING COMMISSIONER. An 
 officer appointed by the several circuit courts 
 of the United States for each port of entry, 
 which is also a port of ocean navigation within 
 their respective jurisdictions, which, in the 
 judgment of such court, may require the same. 
 His duties are : to facilitate and superintend 
 the engagement and discharge of seamen ; to 
 secure the presence on board of the men en- 
 gaged at the proper times ; to facilitate the 
 making of apprenticeship to the sea service ; 
 and such other like duties as may be required 
 by law ; R. S. §§ 4501-4508. 
 
 SHIP'S HUSBAND. An agent ap. 
 pointed by the owner of a ship, and invested 
 with authority to make the requisite repairs 
 and attend to the management, equipment 
 and other concerns of the ship. He is the 
 general agent of the owners in relation to the 
 ship, and may be appointed in writing or 
 orally. He is usually, but not necessarily, a 
 part-owner; 1 Pars. Mar. Law, 97. He must 
 see to the proper outfit of the vessel in the 
 repairs adequate to the voyage and in the 
 tackle and furniture necessary for a seaworthy 
 ship ; must have a proper master, mate, and 
 crew for the ship, so that in this respect it 
 shall be seaworthy ; must see to the dve fur- 
 nishing of provisions and stores according to 
 the necessities of the voyage ; must see to the 
 regularity of the clearances from the custom- 
 house and the regularity of the regiatrj'; 
 must settle the contracts and provide for the 
 payment of the furnishings which are requi- 
 site to the performance of those duties ; must 
 enter into proper charter-parties, or engage 
 the vessel for general freight under the usual 
 conditions, and settle for freight and adjust 
 averages with the merchant ; and must fre- 
 serve the proper certificates, surveys and doc- 
 uments, in case of future disputes with in- 
 surers and freighters, and to keep regular 
 books of the ship ; 4 B. & Ad. 375 ; 1 Y. & 
 C. 326; 8 Wend. 144; 16 Conn. 12. These 
 are his general powers ; but, of course, they 
 may be limited or enlarged by the owners ; 
 and it may be observed that without special 
 authority he cannot borrow money generally 
 for the use of the ship ; though, as above oh. 
 served, he may settle the accounts for furnish- 
 ings, or grant bills for them, which form 
 debts against the concern whether or not he 
 has funds in his hands with which he might 
 have paid them ; 1 Bell, Com. § 499. Al- 
 though he may, in general, levy the freight 
 which is by the bill of lading payable on the 
 delivery of the goods, it would seem that he 
 would not have power to take bills for the 
 freight and give up the possession of the lien 
 over the cargo, unless it has been so settled 
 by the charter-party. 
 
 He cannot insure or bind the owners for 
 premiums ; 17 Me. 147 ; 2 Maule & S. 485; 
 7 B. Monr. 595 ; 11 Pick. 85; 5 Burr. 2627. 
 
 As the power of the master to enter into 
 contracts of affreightments is superseded in 
 the port of the owners, so it is by the pre- 
 sence of the ship's husband or the knowledge 
 of the contracting parties that a ship's hus- 
 band has been appointed; 2 Bell, Com. 199. 
 The ship's husband, as such, has no lien on 
 the vessel or proceeds ; 2 Curt. C. C. 427. 
 
 SHIP'S PAPERS. The jpapers or docu- 
 ments required for the manifestation of the 
 ownership and national character of a vessel 
 and her cargo, and to show her comphance 
 with the revenue and navigation laws of the 
 country to which she belongs. 
 
 The want of these papers or any of them 
 renders the character of a vessel suspicious; 
 
SHIPPER 
 
 639 
 
 SHORT ENTRY 
 
 2 Boulay-Paty, Droit Com. 14 ; and the use 
 of false or simulated papers frequently sub- 
 jects the vessel to confiscation ; 15 East, 46, 
 70 364 ; or avoids an insurance, unless the 
 insurer has stipulated that she may carry such 
 papers; id. 
 
 A ship's papers are of two sorts : Jirst, 
 those required by the law of the particular 
 country to which the ship belongs : as, the 
 certificate of registry or of enrolment, the 
 license, the crew-list, the shipping articles, 
 clearance, etc.; and, second, such as are re- 
 quired by the law of nations to be on board 
 of neutral ships as evidence of their title to 
 that character : as, the sea brief or letter, or 
 passport ; the proofs of property in the ship, 
 as bills of sale, etc.; the charter-party ; the 
 bills of lading ; the invoices ; the crew-list or 
 muster-roll; the log-book, and the bill of 
 health. M'CuUoch, Com. Diet. Ship's 
 Papers. 
 
 SHIPPER. One who ships or puts goods 
 on board of a vessel, to be carried to another 
 place during her voyage. In general, the 
 shipper is bound to pay for the hire of the 
 vessel or the freight of the goods ; 1 Bouvier, 
 Inst. n. 1030. 
 
 SHIPPING. Ships in general ; ships or 
 vessels of any kind intended for navigation. 
 Relating to ships ; as, shipping interest, ship- 
 ping anairs, shipping business, shipping con- 
 cerns. Putting on board a ship or vessel, or 
 receiving on board a ship or vessel. Webster, 
 Diet.; Worcester, Diet. See Ship; Ship's 
 Papers. 
 
 SHIPPING- ARTICLES. An agree- 
 ment, in writing or print, between the master 
 and seamen or mariners on board his vessel 
 _ (except such as shall be apprenticed or ser- 
 vant to himself or owners), declaring the 
 voyage or voyages, term or terms of time, for 
 which such seamen or mariners shall be 
 shipped. It is also required that at the .foot 
 of every such contract there shall be a memo- 
 randum, in writing, of the day and the hour 
 on which each seaman or mariner who shall 
 so ship and subscribe shall render himself on 
 board to begin the voyage agreed upon. Pro- 
 vision is made in the R. S. of U. S. for ship- 
 ping articles, and a penalty is imposed for 
 shipping seamen without them ; R. S., § 4509 
 et seq. 
 
 The shipping articles ought not to contain 
 any clause which derogates from the general 
 rights and privileges of seamen ; and, if they 
 do, such clause will be declared void ; 2 Sumn. 
 443; 2 Mas. 541. 
 
 A seaman who signs shipping articles is 
 bound to perform the voyage ; and he has no 
 right to elect to pay damages for non-perform- 
 ance of the contract ; 2 Va. Cas. 276. 
 
 See, generally, Gilp. 147, 219, 452; 1 Pet. 
 Adm. 212; Bee, 48 ; 1 Mas. 443; 5 id. 272; 
 14 Johns. 260. 
 
 SHIRE. In English Law. A district 
 or division of country. Co. Litt. 50 a. 
 
 SHIRE-GEMOT (spelled, also, Scire-ge- 
 mote, Scir-gemot, Scyre-gemote, Shire-mote ; 
 from the Saxon scir or scyre, county, shire, 
 and gemote, a court, an assembly). 
 
 The Saxon county court. It was held twice 
 a year before the bishop and alderman of the 
 shire, and was the principal court. Spel- 
 man. Gloss, Gemotum; Crabb, Hist. Eng. 
 Law, 28. 
 
 SHIRE-MAN, or SCYRE-MAN. Be- 
 fore the conquest the judge of the county, 
 by whom trials for land, etc., were deter- 
 mined. Toml. ; Moz. & W. 
 
 SHOP-BOOKS. The books of a retail 
 dealer, mechanic, or other person, in which 
 entries or charges are made of work done, or 
 goods sold and delivered' to customers, com- 
 monly called " account-books," or "books of 
 account." The party's own shop-hooks are 
 in certain cases admissible in evidence to 
 prove the delivery of goods therein charged, 
 where a foundation is laid for their introduc- 
 tion. The following are the general rules 
 governing the production of this kind of evi- 
 dence. First, that the party offering the 
 books kept no clerk ; second, that the books 
 offered by the party are his books of account, 
 and that the entries therein are in his hand- 
 writing; third, it must appear, by some of 
 those who have dealt with the party and set- 
 tled by the books offered, that they found 
 them correct ; fourth, it must be shown that 
 some of the articles charged have been deliv- 
 ered. Where entries are made by a clerk 
 who is dead, such entries are admissible in 
 evidence on proof of the handwriting ; 4 111. 
 120; 19 id. 393; 8 Johns. 212; 11 Wend. 
 568; 1 Greenl. Ev. § 117; 1 Smith, Lead. 
 Cas. 282. See Original Entry. 
 
 SHORE. Land on the side of the sea, a 
 lake, or a river. Strictly speaking, when the 
 water does not ebb and flow in a river, there 
 is no shore. See 6 Mass. 435 ; 23 Tex. 349 ; 
 23 N. J. L. 624, 683 ; 38 id. 548. River ; 
 Sea. 
 
 SHORT CAtrSE. A suit in the chan- 
 cery division of the high court of justice, 
 where there is only a simple point for discus- 
 sion, which will probably occupy not more 
 than ten minutes in the hearing. A suit may 
 often be greatly accelerated by being placed 
 on the list of short causes, which are heard 
 one day in each week (generally Saturday) 
 during the sittings of the court ; Dan. Ch. Pr. 
 5th ed. 836 ; Hunt. Eq. Pt. I. ch. 4, s. 4. A 
 similar provision is familiar to the practice of 
 the courts of several of the states, but its 
 operation is not restricted to chancery cases, 
 and the time allowed for the hearing varies 
 in the different courts. 
 
 SHORT ENTRY. A term used among 
 bankers to denote the act which takes place 
 when a note has been sent to a bank for col- 
 lection, and an entry of it is made in 
 the customer's bank-book, stating the amount 
 in an inner column, and carrying it out into 
 
SHORT-FORD 
 
 640 
 
 SIGNATURE 
 
 the accounts between the parties when it has 
 been paid. 
 
 A bill of this kind remains the property of 
 the depositor ; 1 Rose, 153 ; 2 id, 163 ; 2 B. 
 &C.422; 11 R. 1. 119. 
 
 SHORT-FORD. An ancient custom of 
 the city of Exeter, similar to that of gavelet 
 in London, which was in efiect a foreclosure of 
 the right of the tenant by the lord of the fee, 
 in cases of non-payment of rent ; Cowel. 
 
 SHORT NOTICE. In English Prac- 
 tice. Four days' notice of trial. Wharton, 
 Law Diet. Notice of Trial; 1 Cr. & M. 
 499. Where short notice has been given, 
 two days is sufficient notice of continuance ; 
 Wharton, Lex. 
 
 SI TE FECERIT SECURUM (Lat. 
 if he make you secure). Words which occur 
 in the form of writs, which originally re- 
 quired, or still require, that the plaintiff 
 should give security to the sheriff" that he will 
 prosecute his claim, before the sheriff" can be 
 required to execute such writ. 
 
 SICKNESS. By sickness is understood 
 any affection of the body which deprives it 
 temporarily of the power to fulfil its usual 
 functions. It has been held to include in- 
 sanity ; L. R. 8 Q. B. 295. 
 
 Sickness is either such as aifects the body 
 generally, or only some parts of It. Of the for- 
 mer class a fever is an example ; of the latter, 
 blindness. When a process has been issued 
 against an individual for his arrest, the sheriff 
 or other officer is authorized, after he has 
 arrested him, if he be so dangerously sick that 
 to remove him would endanger his life or 
 health, to let Mm remain where he found him, 
 and to return the facts at large, or simply lan- 
 guidus. 
 
 SIDE-BAR RULES. In English Prac- 
 tice. Rules which were formerly moved for 
 by attorneys on the side-bar of the court, but 
 now may be had of the clerk of the rules, 
 upon a prcBcipe. These rules are, that the 
 sheriff" return his writ, that he bring in the 
 body, for special imparlance, to be present 
 at the taxing of costs, and the like. As to 
 side-bar applications, see Mitchell, Rules, 20. 
 
 SIDESMEN (testes, syrmdales). In Ec- 
 clesiastical Law. A kind of impanelled 
 jury, consisting of two, three, or more persons, 
 in every parish, who were upon oath to pre- 
 sent all heretics and Irregular persons. In 
 process of time they became standing officers 
 m many places, especially cities. They were 
 called synodsmen, — by corruption sidesmen ; 
 also questmen. But their office has become 
 absorbed in that of church-warden. 1 Bum, 
 Eccl. Law, 399. 
 
 SIDE'WALE. See Street. 
 
 SIGHT. Presentment. Bills of exchange 
 are frequently drawn payable at sight or a 
 certain number of days or months after sight. 
 
 Bills payable at sight are said to be entitled 
 to days of grace by the law merchant ; Dan. 
 Nog. Instr. § 617; 13 Gray, 597; 42 Ala. 
 186; 28 Mo. 596; contra, 1 E. D. Sm. 505. 
 
 Statutes have settled the question in acme 
 states. 
 
 The holder of a bill payable at sight is re- 
 quired to use due diligence to put it into cir- 
 culation, Mid, if payable after sight, have it 
 presented in reasonable time ; 20 Johns 146' 
 12 Pick. 399 ; 28 E. L. & E. 131 ; 13 Mass' 
 137; 4 Mas. 336; 5 id. 118; 1 M'Cord, 
 322 ; 1 Hawks, 1 95. 
 
 After sight in a bill means after acceptance, 
 in a note, after exhibition to the maker' 
 Dan. Neg. Instr. § 619. It is usual to leave 
 a bill for acceptance one whole day ; but the 
 acceptance is dated as on the day it was left ; 
 Sewell, Bank. 
 
 A bill drawn payable a certain number 
 of days after sight, acceptance waived, must 
 be presented to fix the time at which the bill 
 is to become due, and the term of the bill be- 
 gins to run from the date of presentment. 
 
 Sight drafts and sight bills are bills payable 
 at sight. 
 
 SIGILLTTM (Lat.). A seal. 
 SIGN MANUAL. In English Law. 
 The signature of the king to grants or letters 
 patent, inscribed at the top. 2 Sharsw. Bla. 
 Com. 347*. 
 
 Any one's name written by himself. Web- 
 ster, Diet. ; Wharton, Law Diet. The sign 
 manual is not good unless countersigned, etc.; 
 9 Mod. 54. 
 
 SIGNA (Lat.). In Civil Law. Those 
 species of indicia which come more immedi- 
 ately under the cognizance of the senses : such 
 as, stains of blood on the person of one ac- 
 cused of murder, indications of terror at being 
 charged with the oflience, and the like. 
 
 'Signa, although not to be rejected as instru- 
 ments of evidence, cannot always be relied 
 upon as conclusive evidence ; for they are fre- 
 quently explained away. In the instanoe 
 mentioned, the blood may have been that of 
 a beast ; and expressions of terror have been 
 frequently manifested by innocent persons 
 who did not possess much fimmess. See Best, 
 Pres. Ev. 13, n./; Denisart. 
 
 SIGNATURE. In Ecclesiastical Law. 
 The name of a sort of rescript, without seal, 
 containing the supplication, the signature of 
 the pope or his delegate, and the grant of a 
 pardon. Diet. Dr. Can. 
 
 In Practice. By signature is understood 
 the act of putting down a man's name at the 
 end of an instrument, to attest its validity. 
 The name thus written is also called a signa- 
 ture. 
 
 It is not necessary that a party should write 
 his name himself, to constitute a signature : 
 his mark is now held sufficient, though he was 
 able to write; 8 Ad. & E. 94; 8 Nev. & V. 
 228 ; 3 Curt. C. C. 762 ; 5 Johps. 144. A 
 signature made by a party, another person 
 guiding his hand with his consent, is sufficient ; 
 4 Wash. C. C. 262, 269. 
 
 The signature is usually made at the bot- 
 tom of the instrument ; but in wills it has 
 been held that when a testator commencea 
 
SIGNET 
 
 641 
 
 SIMPLE TRUST 
 
 hia will with these words, "I, A B, make 
 this my will," it was a sufficient signing; 3 
 Lev. 1. And see Sucjg. Vend. 71 ; 2 Stark. 
 £v. 605, 613. But this decision is said to be 
 abaurd; 1 Brown, Civ. Law, 278, a. 16. See 
 Merlin, Rfipert. Signature, for a history of 
 the origin of signatures ; and, also, 4 Cruise, 
 Dig. 32, e. 2. s. 73 et seq. See, generally, 8 
 ToaUier, nn. 94-96; 1 Dall. 64; 5 W hart. 
 386 ; 2 B. & P. 238 ; 2 Maule & S. 286. 
 
 SIONET. A seal commonly used for the 
 sign manual of the sovereign. Whart. Lex. 
 The signet is also used for the purpose of 
 I'ivil justice in Scotland ; Bell. See Writers 
 
 TO THE Signet. 
 
 SIONIFICAXION (Lat. signum, a sign, 
 facere, to make). In French Law. The 
 notice given of a decree, sentence, or other 
 judicial act. 
 
 SIGNIFICAVIT (Lat.). In Ecclesiasti- 
 cal Law. When this word is used alone, it 
 means the bishop's certificate to the court of 
 chancery in order to obtain the writ of ex- 
 communication ; but where the words writ of 
 significaml are used, the meaning is the same 
 as writ de excommunicato capiendo. 2 Burn, 
 Eoel. Law, 248 ; Shelf. Marr. & D. 502. Ob- 
 solete. 
 
 SIONING JUDGMENT. In English 
 Practice, the plaintiff or defendant, when 
 the cause has reached such a stage that he is 
 entitled to a judgment, obtains the signature 
 or allowance of the proper officer; and this 
 is called signing judgment, and is instead of 
 the delivery of judgment in open court ; Steph. 
 PI. 111. It is the leave of the master of the 
 oifice to enter up judgment, and may be had 
 in vacation ; 3 B. & C. 317 ; Tidd, Pr. 616. 
 
 In American Practice, it is an actual 
 signing of the judgment on the record, by the 
 judge or other officer duly authorized ; Gra- 
 ham, Pr. 341. 
 
 SILENCE. The state of a person who 
 does not speak, or of one who refrains from 
 speaking. 
 
 Pure and simple silence cannot be consid- 
 ered as a consent to a contract, except in 
 cases where the silent person is bound in 
 good faith to explain himself; in which case 
 silence gives consent ; 14 S. & R. 393 ; L. 
 K. 6 Q. B. 597; 102 Mass. 135; 6 Penn. 
 336. But no assent will be inferred from a 
 man's silence unless he knows his rights and 
 knows what he is doing, nor unless his silence 
 is voluntary. 
 
 When any person is accused of a crime or 
 charged with any fact, and he does not deny 
 it, m general, the presumption is very strong 
 thatthe charge is correct ; 5 C. & P. 332 ; 7 
 id. 832 ; Joy, Conf. p. 77. 
 
 The rule does not extend to the silence of 
 the prisoner when, on his examination before 
 « magistrate, he is charged by another pris- 
 oner with having joined with him in the com- 
 mission of an offence ; 3 Stark. 33. 
 
 When an oath is administered to a witness, in- 
 VOL. II.— 41 
 
 stead of expressly promising to keep it, he gives 
 his assent by his silence and kissing the book. 
 
 The person to be affected by the silence 
 must be one not disqualified to act, as non 
 compos, an infant, or the like; for even the 
 express promise of such a person would not 
 bind him to the performance of any contract. 
 
 The rule of the civil law is that silence is 
 not an acknowledgment or denial in every 
 case : qui tacet, non utique fatetur ; ted 
 tamen verum est, eum non negare ; Dig. 60. 
 17. 142. 
 
 SILK GCWN. Used especially of the 
 gowns worn by queen's counsel ; hence, 
 "to take silk" means to attain the rank of 
 queen's counsel ; Moz. & W. 
 
 SILVA CSDUA (Lat.). By these 
 words, in England, is understood every sort 
 of wood, except gross wood of the age of 
 twenty years. Bacon, Abr. Tythes (C). 
 
 SIMILITER (Lat. likewise). In Plead- 
 ing. The plaintifi^s reply that, as the defen- 
 dant has put himself upon the country, he, 
 the plaintiff, does the like. It occurs only 
 when the plea has the conclusion to the coun- 
 try, and its effect is to join the plaintiff in the 
 issue thus tendered by the defendant ; Co. 
 Litt. 126 a. The word similiter was the ef- 
 fective word when the proceedings were in 
 Latin ; 1 Chitty, PI. 61 9 ; Archb. Civ. PI. 
 250. See Steph. PI. 255; 2 Saund. 319 
 b ; Cowp. 407 ; 1 Stra. 551 ; 11 S. & R. 32. 
 
 SIMON'Sr. In Ecclesiastipal Law. 
 The selling ,and buying of holy orders or an 
 ecclesiastical benefice. Bacon, Abr. Simony. 
 By simony is also understood an unlawful 
 agreement to receive a temporal reward for 
 something holj' or spiritual. Code, 1. 3. 31 ; 
 Ayliffe, Parerg. 496. 
 
 SIMPLE CONTRACT. A contract the 
 evidence of which is merely oral or in writ- 
 ing, not under seal nor of record. 1 Chitty, 
 Contr. 1. See 11 Mass. 30; 4 B. & Aid. 
 588 ; 2 Bla. Com. 472. 
 
 Under the act of 32 and 33 Vict. c. 46, s. 1, in 
 the administration of the estate of a decedent, 
 after Jan. 1, 1870, hia simple contract debts are 
 placed on an equal footing with those secured by 
 specialty. But this does not prejudice any lien 
 or other security, which any creditor may hold. 
 
 SIMPLE LARCEN7. The felonious 
 taking and carrying away the personal goods 
 of another, unattended by acts of violence : 
 it is distinguished from compound larceny, 
 which is stealing from the person or with vio- 
 lence. Larckny. 
 
 SIMPLE OBLIGATION. An uncon- 
 ditional obligation ; one which is to be per- 
 formed without depending upon any event 
 provided by the parties to it. 
 
 SIMPLE TRUST. A simple trust cor- 
 responds with the ancient use, and is where 
 projperty is simply vested in one person for 
 the use of another, and the nature of the 
 trust, not being qualified by the settler, is 
 left to the construction of law. It diifers 
 from a special trust. 2 Bouvier, Inst. n. 1896. 
 
SIMPLE WARRANDICE 
 
 642 SIX ARTICLES, LAWS OF 
 
 SIMPLE -WARRANSICE. See War. 
 
 BAKDICE. 
 
 SIMPLEX (Lat.). Simple or single ; as, 
 ckarta simplex is a deed-poll or single deed. 
 Jacob, Law Diet. 
 
 SIMPLICITER (Lat.). Simply ; -with- 
 out ceremony ; in a summary manner. 
 
 SIMXJL CUM (Lat. together with). In 
 Pleading. Words used in indictments and 
 declarations of trespass against several per- 
 sons, when some of them are known and 
 others are unknown. 
 
 In cases of riots, it is usual to charge that 
 A B, together with others unknown, did the 
 act complained of; 2 Chitty, Cr. Law, 488 ; 
 2 Salk. 593. 
 
 When a party sued with another pleads 
 separately, the plea is generally entitled in 
 the name of the person pleading, adding, 
 
 "sued with ," naming the other party. 
 
 When this occurred, it was, in the old phrase- 
 ology, called pleading with a simul cum. 
 
 SIMULATIOK (Lat. simul, together). 
 In French Law. The concert or agreement 
 of two or more persons to give to one thing 
 the appearance of another, for the purpose of 
 fraud. Merlin, R6pert. 
 
 With us, such act might be punished by in- 
 dictment for a conspiracy, by avoiding the 
 pretended contract, or by action to recover 
 back the money or property which may have 
 been thus fraudulently obtained. 
 
 SINE DIE (Lat.). Without day. A judg- 
 ment for a defendant in many cases is quod 
 eat sine die, that he may go without day. 
 While the cause is pending and undetermined, 
 it may be continued from term to term by 
 dies datus. See Continuance ; Co. Litt. 
 362 6. When the court or other body rise at 
 the end of a session or term, they adjourn 
 sine die. 
 
 SINE HOC. A phrase formerly used in 
 pleading as equivalent to absque hoc, q. v. 
 
 SINE PROLE. Without issue. Used in 
 genealogical tables, and often abbreviated 
 into "s. p." 
 
 SINECURE. In Ecclesiastical Law. 
 A term used to signify that an ecclesiastical 
 officer is without a charge or cure. 
 
 In common parlance, it means the receipt 
 of a salary for an office when there are no 
 duties to be performed. 
 
 SINGLE BILL. One without any con- 
 dition, which does not depend upon any future 
 event to give it validity. 
 
 SINGLE COMBAT. See Battel; 
 Wager of Battle. 
 
 SINGLE ENTRY. A term used among 
 merchants, signifying that the entry is made 
 to charge or to credit an individual or thing, 
 without at the same time presenting any 
 other part of the operation : it is used in 
 contradistinction to double entry. For ex- 
 ample, a single entry is made, A B debtor, 
 
 or A P creditor, without designating what 
 are theMconnections between the entry and 
 the objects. which con^posed the fortune of 
 the merchant. 
 
 SINGULAR. In grammar, the singular is 
 used to express only one; not plural. Johnson. 
 
 In law, the singular frequently includes the 
 plural. A beqnest to "my nearest relation," 
 for example, will be considered as a bequest to 
 all the relations in the same degree who are 
 nearest to the itestator; 1 Ves. Sen. 367- i 
 Bro. C. C. 293. A bequest made to "my 
 heir," by a person who had three heirs, will 
 be construed in the plural ; 4 Russ. Cr.Cas. 384. 
 
 The same rule obtains in the civil law : in 
 usu juris frequenter uti nos singulari appeU 
 latione, cum plura significari vellemus. Dig 
 60. 16. 168. 
 
 Under the 13 & 14 Vict. c. 21, s. 4, words in 
 acts of parliament Importing the singular sliall 
 include the plural, and vice versoi unleee the con- 
 trary is expressly provided ; Whart. Lex. 
 
 SINGULAR SUCCESSOR. A phrase 
 in Scotch law, applied to the purchase of a 
 specific chattel or specific land, as e. g., an 
 executor or administrator, in contradistinc- 
 tion to the heir. Bell. 
 
 SINKING FUND. A fund arising from 
 particular taxes, imposts, or duties, which is 
 appropriated towards the payment of the in- 
 terest due on a public loan and for the 
 gradual payment of the principal. See Fund- 
 ing System. 
 
 SIST ON A SUSPENSION. A Scotch 
 phrase equivalent to " Stay of proceedings." 
 Bell. 
 
 SISTER. A woman who has the same 
 father and mother with another, or has one of 
 them only. In the first case, she is called sis- 
 ter, simply ; in the second, half-sister. 
 
 SITTINGS IN BANK OR BANC. 
 The sittings which the respective superior 
 courts of common law hold during every 
 term for the purpose of hearing and deter- 
 mining the various matters' of law argued 
 before them. 
 
 They are so called in contradistinction to 
 the sittings at nisiprius, which are held for 
 the purpose of trying issues of fact. 
 
 In America, the practice is essentially the 
 same, all the judges, or a piajority of them, 
 usually, sitting in banc, and but one holding 
 the court for jury trials ; and the term has the 
 same application here as in England. See 
 London and Middlesex Sittings. 
 
 SITTINGS IN CAMERA. See Cham- 
 bers. 
 
 SITUS (Lat.). Situation; location. 5 
 Pet. 524. 
 
 Real estate has always a fixed.situs, while 
 personal estate has no such fixed situs : the 
 •law rei sitae regulates real but not personal 
 estate ; Story, Confl. Laws, § 379. 
 
 SIX ARTICLES, LAWS OF. A cele- 
 brated act entitled " an act for abolishing di- 
 versity of opinion;" 31 Hen. VIIL e. 14; 
 
SIX CLERKS IN CHAKCERY 648 
 
 SLANDER 
 
 enforcing conformity to six of the strongest 
 points in the Roman Catholic religion, under 
 the severest penalties ; repealed by 1 Eliz. c. 
 1; 4Keeve, Eng. L. 378. 
 
 SIX CLERKS IN CHANCER'^. Offi- 
 cers who received and filed all proceedings, 
 signed office copies, attended court to read tnc 
 pleadings, etc. Abolished by 6 Vict. c. 5. 3 
 Sharsw. Bla. Com. 443* ; Spence, Eq. Jur. 
 
 SKELETON BILL. In Commercial 
 Law. A blank paper, properly stamped, in 
 those countries where stamps are required, 
 with the name of the person signed at the 
 botton. 
 
 In such case the person signing the paper 
 will be held as the drawer or acceptor, as it 
 may be, of any bill which shall afterwards 
 be written above his name, to the sum of 
 which the stamp is applicable ; 1 Bell, Com. 
 890. 
 
 SKILL. The art of doing a thing as it 
 ought to be done. 
 
 • Every person T*ho purports to have skill in 
 a business, and undertakes for hire to perform 
 it, is bound to do it with ordinary skill, and 
 is responsible civilly in damages for the want 
 of it; 11 M. & W. 483; and sometimes he 
 is responsible criminally. See Mala Praxis ; 
 2 Russ. Cr. 288. 
 
 The degree of skill and diligence required 
 rises in proportion to the value of the article 
 and the delicacy of the operation: more skill 
 is required, for example, to repair a very deli- 
 cate mathematical instrument, than upon a 
 common instrument; Jones, Bailm. 91 ; 2 
 Kent, 458, 463 ; Ayliffe, Pand. 466 ; 1 RoUe, 
 Abr. 10 ; Story, Bailm. § 431 ; 2 Greenl. Ev. 
 §144. 
 
 SLANDER. In Torts. Words falsely 
 spoken, which are injurious to the reputation 
 of another. 
 
 False, defamatory words spoken of another. 
 See Odger, Libel & S. *7. 
 
 Verbal Slander. Actionable words are of 
 two descriptions : first, those actionable in 
 themselves, without proof of special damages ; 
 and, secondly, those actionable only in re- 
 spect of some actual consequential damages. 
 
 Words of the first description must impute — 
 
 First, the guilt of some oflence for which 
 the party, if guilty, might be indicted and 
 punished by the criminal courts ; as, to call a 
 persona "traitor," "thief," "highwayman," 
 or to say that he is guilty of "perjury," 
 "forgery," ''murder," and the like. And 
 although the imputation of guilt be general, 
 without stating the particulars of the pre- 
 tended crime, it is actionable; Cro. Jac. 114, 
 142 ; 6 Term, 694 ; 6 B. & P. 335 ; it is 
 enough if the offence charged be a misde- 
 meanor involving moral turpitude ; Bigel. 
 Torts, 44. If the charge is that the plaintiff 
 has already suffered the punishment, the" 
 words, if false, are actionable ; ibid. ; see 5 
 Penn. 272. 
 
 Second, that the party has a disease or dis- 
 temper which renders him unfit for society ; 
 
 Bacon, Abr. Slander (B. 2). An action can, 
 therefore, be sustained for calling a man a 
 leper; Cro. Jac. 144. Imputations of having 
 at the present time a venereal disease are ac- 
 tionable in themselves ; 8 C. B. n. s. 9 ; 
 7 Gray, 181 ; 22 Barb. 396 ; 2 Ind. 82 ; 2 Ga. 
 57. But charging another with having had 
 a contagious disease is not actionable, as he 
 will not on that account be excluded from 
 society; 2 Term, 473, 474; 2 Stra. 1189. 
 
 Third, unfitness in an officer, who holds an 
 office to which profit or emolument is at- 
 tached, either in respect of morals or in- 
 ability to discharge the duties of the office ; 
 in such a case an action lies; 1 Salk. 695, 
 698; 4 Co. 16 a.; 5 id. 125; 1 Stra. 617; 2 
 Ld. Raym. 1369 ; Bull. N. P. 4. 
 
 Fourth, the want of integrity or capacity, 
 whether mental or pecuniary, in the conduct 
 of a profession, trade, or business, in which 
 the party is engaged, is actionable; as, to 
 accuse an attorney or artist of inability, inat- 
 tention, or want of integrity; 3 Wils. 187; 
 2 W. Blackst. 750 ; or a clergyman of being 
 a drunkard; 1 Binn. 178; is actionable, fi 
 is one of the general rules governing the ac- 
 tion for words spoken, that words are action- 
 able, when spoken of one in an office of profit, 
 which have a natural tendency to occasion the 
 loss of his office, or when spoken of persons 
 touching their respective professions, trades, 
 and business, and which have a nflural tend- 
 ency to their damage. The ground of action 
 in these eases is that the party is disgraced or 
 injured in his profession or trade, or exposed 
 to the hazard of losing his office, in con- 
 sequence of the slanderous words ;Oiot that 
 his general reputation and standing in the 
 community are affected by theni) It will be 
 recollected that the words spoken, in this 
 class of cases, are not actionable of them- 
 selves, but that they become so in consequence 
 of the special character of the party of whom 
 they were spoken. The fact of his maintain- 
 ing that special character, therefore, lies at the 
 very foundation of the action ; Heard, Libel 
 & S. §§41,45. 
 
 Fifth. Bigelow (Torts, 48) gives as a fifth 
 class words tending to defeat an expected 
 title : as to call an heir apparent to estates, 
 a bastard. See Cro. Car. 469. 
 
 Qf the second class are words which are 
 actionable only in respect of special damages 
 sustained by the party slandered. Though 
 the law will not permit in these cases the in- 
 ference of damage, yet when the damage has 
 actually been sustained the party aggrieved 
 may support an action for the publication of 
 an untruth ; 1 Lev. 53 ; 2 Leon. Ill ; unless 
 the assertion be made for the assertion of a 
 supposed claim ; Comyns, Dig. A ction upon 
 the Case for Defamation ^D 30) ; Bacon, 
 Abr. Slander (B) ; but it lies if maliciously 
 spoken. In this case special damage is the 
 gist of the action, and must be particularly 
 specified in the declaration. For it is an es- 
 tablished rule that no evidence shall be re- 
 ceived of any loss or injury which the plain- 
 
SLANDER 
 
 644 
 
 SLAVE 
 
 tiff had sustained by the speaking of the 
 -words unless it be specially stated in the de- 
 claration. And this rule applies equally 
 where the special damage is the ^st of the 
 action and where the words are in themselves 
 actionable ; Heard, Libel & S. 8 61. 
 
 The charge must be false ; 5 Co. 125, 126 ; 
 Hob. 253. The falsity of the accusation is 
 to be implied till the contrary is shown ; 2 
 East, 436 ; 1 Saund. 242. The instance of a 
 master making an unfavorable representation 
 of his servant, upon an application for his 
 character, seems to be an exception, in that 
 case there being a presumption, from the oc- 
 casion of speakmg, that the words were true ; 
 3 B. & P. 587. 
 
 The slander must, of course, be published, 
 — that is, must be communicated to a third 
 person, — and in a language which he un- 
 derstands ; otherwise the plaintiff's reputa^ 
 tion is not impaired ; 1 Rolle, Abr. 74 ; Cro. 
 Eliz. 857 ; 1 Saund. 242, n. 3 ; Bacon, Abr. 
 Slander (D 3). The slander must be pub- 
 lished respecting the plaintiff. A mother 
 cannot maintain an action for calling her 
 daughter a bastard; 11 S. & R. 343. In an 
 action for slander it will afford no justification 
 that the defamatory matter has been pre- 
 viously published by a third person, that the 
 defendant at the time of his publication dis- 
 closed the name of that third person and be- 
 lieved all me statements to be true ; Heard, 
 Libel & S. § 148. And a repetition of oral 
 slander already in circulation, without ex- 
 pressing any disbelief of it or any purpose 
 of inquiring as to its truth, though without 
 any design to extend its circulation or credit, 
 or to cause the person to whom it is addressed 
 to believe or suspect it to be true, is action- 
 able: 5 Gray, 3. . 
 
 To render words actionable, they must be 
 uttered without legal occasion. On some oc- 
 casions it is justifiable to utter slander of an- 
 other ; in others it is excusable, provided it 
 be uttered without express malice ; Bacon, 
 Abr. Slander (D 4) ; EoUe, Abr. 87 ; 1 Viner, 
 Abr. 540. It is justifiable for an attorney to 
 use scandalous expressions in support of his 
 client's cause and pertinent thereto ; 1 Maule 
 & S. 280; I Holt, 631; 1 B. & Aid. 232. 
 See 2 S. & R. 469; 11 Vt. 636. Members 
 ' of congress and other legislative assemblies 
 cannot be called to account for anything said 
 in debate. See Privileged Communica- 
 tions. 
 
 Malice is essential to the support of an ac- 
 tion for slanderous words. But malice is, in 
 general, to be presumed until the contrary be 
 proved; 4 B. & C. 247; 1 Saund. 242, n. 
 2 ; 1 East, 563; 2 id. 436 ; 5 B. & P. 335 ; 
 Bull. N. P. 8 ; except in those cases where 
 the occasion primfi facie excuses the publica- 
 tion ; 4 B. & C. 247. See 14 S. & E. 359. 
 
 See, as to slander of a physician, 28 Am. 
 L. Reg. 465. As to the admissibility of evi- 
 dence of the defendant's pecuniary means, see 
 23 Alb. L. ,T. 44. 
 
 See, generally; Comyns, Dig.; Bacon, Abr.; 
 
 1 Viner, Abr. 187; Starkie, Slander; Heard 
 Libel & Slander ; Odger, Slander ; Bigelow' 
 L. C. Torts. * 
 
 SLANDER OF TITLE. In Torts. A 
 
 statement tending to cut down the extent of 
 one' s title. An action for slander of title is not 
 properly an action for words spoken, but an 
 action on the case for special damage sus- 
 tained by reason of the speaking or publica- 
 tion of the slander of the plaintiff's title. "The 
 property may be either real or personal, and 
 the plaintiff's interest therein may be any- 
 thing that has a market value. It makes no 
 difference whether the defendant's words be 
 spoken, written, or prtnted ; save as affecting 
 the damages, which should be larger when 
 the publication is more permanent or exten- 
 sive, as by advertisement. The action is 
 ranged under that division of actions in the di- 
 gests and other writers on the text law, and 
 is so held by the courts of the present day. 
 The slander may be of such a nature as to fall 
 within the scope of ordinary slander. It is 
 essential, to give a cause of action, that the 
 statement should be false. It is essential, 
 also, that it should be malicious, — not mali- 
 cious in the worst sense, but with intent to 
 injure the plaintiff. If the statement be true, 
 if there really be the infirmity in the title that 
 is suggested, no action will lie however mali- 
 cious the defendant's intention might be; 
 Heard, Libel & S. §§ 10, 59 et seq. 
 
 Where a person claims a right in himself 
 which he intends to enforce against a pur- 
 chaser, he is entitled, and in common fair- 
 ness bound, to give the intended purchaser 
 warning of his intention ; and no action will 
 lie for giving such preliminary warning, unless 
 it can be shown either that the threat was 
 made maid Jide, only with intent to injure 
 the vendor, and without any purpose to fol- 
 low it up by an action against the purchaser, 
 or that the circumstances were such as to 
 make the bringing an action altogether wrong- 
 ful ; L. E. 4 Q. B. 730 ; 14 Cent. L. J. 187 ; 
 Odger, Libel & S. 138. 
 
 SLANDERER. A calumniator who mali- 
 ciously and without reason imputes a crime or 
 fault to another of which he is innocent. See 
 Slander. 
 
 SLAVE. One over whose life, liberty, 
 and property another has unlimited control. 
 
 Every limitation placed by law upon this ab- 
 solute control modifies and to that extent 
 changes the condition of the slave-. In every 
 slaveholding state of the United States the life 
 and limbs of a slave were protected from vio- 
 lence inflicted by the master or third persons. 
 
 Among the Komans the slave was classed 
 among things ires). He was homo sed nonp^- 
 sona. Heineccius, Elem. Jur. 1. 1, § 75. He 
 was considered pro miiloet nwrtuo, j?«"o nee statu 
 familiat nee dvitatis nee libertatis gaudet. Id. J 
 77. See, also, 4 Dev. 840 ; 9 Ga. 582. In the 
 United States, as a person, he was capable of com- 
 mitting crimes, of receiving his freedom, of be- 
 ing the subject of homicide, and of modifying by 
 his volition very materially the rules applicable 
 to other species of property. His existence as » 
 
SLAVE-TRADE 
 
 645 
 
 SLEEPING-CAB 
 
 person being recognized by the law, that exis- 
 tence was protected by the law ; 1 Hawks, 
 217 ; 1 Ala. 8 ; 1 Miss. 83 ; 5 Band. 678 ; 1 Terg. 
 156. --y; 
 
 In the Elaveholding states the relations of hus- 
 band and wife and parent and child were recog- 
 nized by statutes in relation to public sales, and 
 by the courts in all cases where such relations 
 were material to elucidate the motives of their 
 acts. 
 
 A slave had no political rights. His civil 
 rights, though necessarily more restricted than 
 the freemen's, were based upon the law of the 
 land. He had none but such as were by that law 
 and the law of nature given to him. The civil- 
 law rule, "porttM sequitur ventrem," was adopted 
 in all the slaveholding states, the status of the 
 mother at the time of birth deciding the status of 
 the issue : 3 Rand. 346 ; 1 Hayw. 334 ; 1 Cooke, 
 381 ; 2 Dana, 433 ; 3 Mo. 71 ; 14 S. & B. 446 ; 3 
 H. & M'H. 139 ; 30 Johns. 1 ; 13 Wheat. 568 ; 3 
 How. 265, 496. 
 
 The slave could not acquire property : his ac- 
 quisitions belonged to his master ; 5 Cow. 397 ; 
 1 Bail. 633; 3 HUl, Ch.397 ; 6 Humphr. 399 ; 2 
 Ala. 320 ; 5 B. Monr. 186. Thepeculiwn of the 
 Roman slave was ex gratia, and not of right ; 
 Inst. 3. 9. 3. In like manner, negro slaves in 
 the United States were, as a matter of fact, some- 
 times permitted by their masters ex gratia, to ob- 
 tain and retain property. The slave could not 
 be a witness, except for and against slaves or 
 free negroes. This was, perhaps, the rule of the 
 common law. Xone but a freeman was othes- 
 worth. In the United States the rule of exclu- 
 sion which we have mentioned was enforced in 
 all cases where the evidence was offered for or 
 against white persons ; 6 Leigh, 74. In most of 
 the states this exclusion was by express statutes, 
 while in others it existed by custom and the de- 
 cision of the courts ; 10 Ga. 519. In the slave- 
 holding states, and in Ohio, Indiana, Illinois, 
 and Iowa, by statute, the rule was extended to 
 Include free persons of color or emancipated 
 slaves ; 14 Ohio, 199 ; 3 Harr. & J. 97. The slave 
 could be a suitor in court only for his freedom. 
 For all other wrongs he appeared through his 
 master, for whose benefit the recovery was had ; 
 9 GiU & J. 19 ; 1 Mo. 608 ; 4 Terg. 303 : 3 Brev. 
 11 ; 4 &U1, 249 ; 9 La. 156 ; 4 T. B. Monr. 169. 
 The suit for freedom was favored ; 1 Hen. & M. 
 143 ; 8 Pet. 44 ; 2 A. K. Marsh. 467. Lapse of time 
 worked no forfeiture by reason of his dependent 
 condition ; 8 B. Monr. 631 ; 1 Hen. & M. 141. The 
 master was bound to maintain, support, and de- 
 fend his slave, however helpless or impotent. If 
 he failed to do so, public officers were provided 
 to supply his deficiency at his expense. 
 
 Cruel treatment was a penal offence of a high 
 grade. Emancipation of the slave was the con- 
 sequence of conviction in Louisiana ; and the sale 
 of the slave to another master was a part of the 
 penalty in Alabama and Texas. 
 
 The enfrapchisenfent of a slave was called 
 manumission. Manumission being merely the 
 withdrawal of the dominion of the master, the 
 right to manumit existed everywhere, unless for- 
 bidden by law. No one but the owner could 
 mannmit ; 4 J. J. Marsh. 103 ; 10 Pet. 683 ; and 
 the effect was simply to make a freeman, not a 
 citizen. See Manumission ; Sehvus ; Fkbe- 
 noM. Slavery was abolished in the United 
 States by the thirteenth amendment to the con- 
 stitution. 
 
 SLAVE-TRADE. The traffic in slaves, 
 or the buying and selling of slaves for profit. 
 It is either foreign or domestic. 
 
 The history of the slave-trade is as old as the I 
 
 authentic records of the race. Joseph was sold 
 to Ishmaelitish slave-traders, and Egypt has 
 been a mart for the traffic from that day to this. 
 The negro early became a subject of it. In 
 every slave-market he has been found, and never 
 as a master except in Africa. The Komau mart, 
 however, exhibited a variety of all the conquered 
 races of the world. At Bristol, in England, for 
 many years about the eleventh century, a brisk 
 t»ade was carried on In purchasing Englishmen 
 and exporting them to Ireland for sale. And 
 William of Malmsbury states that it seems to be 
 a natural custom with the people of Northum- 
 berland to sell their nearest relations. 
 
 The African slave-trade on the eastern coast 
 has been carried on with India and Arabia from 
 a period difficult to be established, and was con- 
 tinued with British India while British ships-of- 
 war hovered on the western coast to capture the 
 pirates engaged in the same trade. On the 
 western coast the trade dates from 1442. The 
 Spaniards for a time monopolized it. The Portu- 
 
 fuese soon rivalled them in its prosecution. Sir 
 ohn Hawkins, in 1562, was the first Englishman 
 who engaged in it ; and queen Elizabeth was the 
 first Englishwoman known to share in the profits. 
 Immense numbers of African negroes were 
 transported to the New World, although thou- 
 sands were landed in England and France and 
 owned and used as servants. The large profits 
 of the trade stimulated the avarice of bad men 
 to forget all the claims of humanity ; and the 
 horrors of the middle passage, though much ex- 
 aggerated, were undoubtedly very great. 
 
 The American colonies raised the first voice in 
 Christendom for the suppression of the slave- 
 trade, but the interests of British merchants 
 were too powerful with the king, who stifled their 
 complaints. The constitution of the United 
 States, in 1789, was the first governmental act 
 towards Its abolition. By it, congress was for- 
 bidden to prohibit the trade until the year 1808. 
 This limitation was made at the suggestion of 
 South Carcdlna and Georgia, aided by some of 
 the New England states. Tet both of those 
 states, by state action, prohibited the trade 
 many years before the time limited, — Georgia as 
 early as 1793. In 1807, an act of congress was 
 passed which prohibited the trade after 1808 ; 
 and by subsequent acts it was declared piracy. 
 The federal legislation on the subject will be 
 found In acts of congress passed respectively 
 March 23, 1794, May 10, 1800, March 2, 1807, 
 April 20, 1818, March 3, 1819, and May 15, 1820. 
 In the year 1807, the British Parliament also 
 passed an act for the abolition of the slave-trade, 
 — the consummation of a parliamentary struggle 
 continued for nineteen years, and fourteen years 
 after a similar act had been adopted by Georgia. 
 Great efforts have been made by Great Britain, 
 by treaties and otherwise, to suppress this trade. 
 See Buxton's Slave-Trade, etc. ; Carey's Slave- 
 Trade ; Cobb's Historical Sketch of Slavery. 
 
 SLEEFHTG-CAR. The servants and em- 
 ployes in charge of sleeping or drawing-room 
 cars are considered in the same light as if thej'' 
 ■were employed by the railroad company, not- 
 withstanding the existence of a separate agree- 
 ment between the railroad and the sleeping- 
 car company, whereby the latter furnishes its 
 own servants and conductor^, and has exclu- 
 sive control of the cars used on the former 
 company's road; 19 Alb. L. J. 471; 28 
 Am. Rep. 200; s. c. 125 Mass. 64. 
 
 Sleeping-car companies are not liable as 
 inn-keepers ; 3 Cent. L. J. 591 ; 73 111. 360, 
 365; 16 Abb. Pr. (n. B.) 362; 24 Am. L. 
 
SLEEPING RENT 
 
 646 SOCIETE EN COMMANDITE 
 
 Reg. N. B. 95 ; nor as common carriers ; 73 
 111. 860; nor as a carrier providing state-rooms 
 for his ps^sengers ; 43 How. Fr. 466 ; but 
 they must exercise ordinary care for the se- 
 curity of passengers' valuables ; 3 Cent. L. 
 J. 591; especially at night; 10 Cent. L. J. 
 66. In cases of loss for which the compa- 
 nies are responsible, the measure of liabil- 
 ity is the same as that of common carriers of 
 passengers under like circumstances, includ- 
 ing only such property as the passenger may 
 reasonably be supposed to carry about his 
 person; 10 Alb. L. J. 149. See Thomp. 
 Car. 530. 
 
 SLEEPING RENT. A fixed rent, as 
 opposed to one varying with the profits. 2 
 Harr. & W. 43. 
 
 SMART-MONET. "Vindictive or exem- 
 plary damages given beyond the actual dam- 
 age, by way of punishment and example, in 
 cases of gross misconduct of defendant. 15 
 Conn. 225 ; 14 Johns! 352 ; 10 Am. L. Reg. 
 N. s. 566. That it cannot be given by jury, 
 see 2 Greenl. Ev. § 253, n. See Exemplary 
 Damages. 
 
 SMOKE-SILVER. A modus of six- 
 pence in lieu of tithe- wood. Twisdale, Hist, 
 vindicat. 77. 
 
 SMTTGGLING'. The fraudulent taking 
 into a country, or out of it, merchandise 
 which is lawfully prohibited. Bacon, Abr. 
 Smuggling. 
 
 SO HELP YOU GOD. The formula at 
 the end of a common oath, as administered to 
 a witness who testifies in chief. 
 
 SOCAGE. (This word, according to the 
 earlier common-law writejrs, originally signi- 
 fied a service rendered by a tenant to his lord, 
 by the soTce or ploughshare ; but Mr. Somner's 
 etymology, referred to by Blackstone, seems 
 more apposite, who derives it from the Saxon 
 word soc, which signifies liberty or privilege, 
 denoting thereby a free or privileged tenure.) 
 A species of English tenure, whereby the 
 tenant held his lands of the lord by any cer- 
 tain service in lieu of all other services, so that 
 the service was not a knight's service. Its 
 principal feature was its certainty: as, to 
 hold by fealty and a certain rent, or by fealty- 
 homage and a certain rent, or by homage 
 and fealty without rent, or by fealty and cer- 
 tain corporal service, as ploughing the lord's 
 land for a specified number of days. 2 Bla. 
 Com. 80. 
 
 The term socage was afterwards extended 
 to all services which were not of a military 
 character, provided they were fixed : as, by 
 the annual payment of a rose, a pair of gilt 
 spurs, a certain number of capons, or of so 
 many bushels of corn. Of some tenements 
 the service was to be hangman, or executioner 
 of persons condemned in the lord's court ; for 
 in olden times such ofiicers were not volun- 
 teers, nor to be hired for lucre, and could 
 only be bound thereto by tenure. There were 
 three different species of these socage tenures, 
 — one in frank tenure, another in ancient ten- 
 
 ure, and the third in base tenure : the second 
 and third kinds are now called, respectively 
 tenure in ancient demesne, and copyhold tenl 
 ure. The first is called free and common 
 socage, to distinguish it from the other two • 
 but, as the term socage has long ceased to be 
 applied to the two latter, socage and free and 
 common socage now mean the same thing 
 Bracton; Co. Litt. 17, 86. See Tenure. 
 
 By the statute of 12 Car. II. c. 24, the an- 
 cient tenures by knight's service were abol- 
 ished, and all lands, with the exception of 
 copjrholds and of ecclesiastical laida, which 
 continued to be held in free alms (frankal- 
 moigne), were turned into free and common 
 socage and the great bulk of real property in 
 England is now held under this ancient 
 tenure. Many grants of land in the United 
 States, made, previous to the revolution, by 
 the British Crown, created the same tenure 
 among us, until they were formally abolished 
 by the legislatures of the different states. In 
 1787, the state of New York converted all 
 feudal tenures within its boundaries into a 
 tenure by free and common socage ; but in 
 1830 it abolished this latter tenure, with all 
 its incidents, and declared that from thence- 
 forth all lands in the state should be held 
 upon a uniform allodial tenure, and vested an 
 absolute property in the owners according to 
 their respective estates. Similar provisions 
 have been adopted by other states ; and the 
 ownership of land throughout the United 
 States is now essentially free and unrestricted. 
 See Tenure. 
 
 SOGER (Lat.). The father of one'swife ; 
 a father-in-law. 
 
 SOCIDA (Lat.), In CIvU Law. The 
 name of a contract by which one man deli- 
 vers to another, either for a small recompense 
 or for a part of the- profits, certain animals, on 
 condition that if any of them perish they shall 
 be replaced by the bailer or he shall pay their 
 value. 
 
 A contract of hiring, with the condition that 
 the bailee takes upon him the risk of the loss 
 of the thing hired. Wolif, § 638. 
 
 SOCIETAS (Lat.). In CivU Law. A 
 contract in good faith made to share in 
 common the profit and loss of a certain busi- 
 ness or thing, or of all the possessions of the 
 parties. Calvinus, Lex.; Inst. 3. 26 ; Dig. 
 17.21. See Partnership. 
 
 SOCIETAS LEONINA (Lat). In 
 Roman Law. That kind of society or part- 
 nership by which the entire profits should 
 belong to some of the partners in exclusion of 
 the rest. 
 
 It was so called in allusion to the fable of the 
 lion and other animals, who having entered into 
 partnership for the purpose of hunting, the lion 
 appropriated all the prey to himself i Dig."'-*' 
 39. 2; Poth. Traits de Societi, n. 13. See i 
 M'Cord, 421 ; 6 Pick. 372. 
 
 SOCIETE EN COMMANDITE. In 
 Louisiana. A partnership formed by a 
 contract by which one person or partnership 
 
SOCIETY 
 
 647 
 
 SOLICITOR 
 
 agrees to furnish another person or partnership 
 a certain amount, either in property or money, 
 to be emplojred by the person or partnership 
 to whom it IS furnished, in his or their own 
 name or firm, on condition of receiving a 
 share in the profits, in the proportion deter- 
 mined by the contract, and of being liable tp 
 losses and expenses to the amount furnished 
 and no more. La. Civ. Code, art. 2810 ; 
 Code de Comm. 26, 33 ; 4 Pardessus, Dr. 
 Com. n. 1027 ; Dalloz. Diet. Society Com- 
 merciale, n. 166. See Goirand, Code ; Com- 
 mendam; Paetnehship. 
 
 SOCIETT. A society is a number of 
 persons united together by mutual consent, 
 in order to deliberate, determine, and act 
 jointly for some common purpose. 
 
 Societies are either incorporated and known 
 to the law, or unincorporated, of which the 
 law does not generally take notice. 
 
 By civil society is usually understood a 
 state, a nation, or a body politic. Buther- 
 forth, Inst. c. 1, 2. 
 
 SODOMITE. One who has been guilty 
 of sodomy. Formerly such offender was pun- 
 ished with great severity, and was deprived 
 of the power of making a will. 
 
 SODOIUTT. A carnal copulation by hu- 
 man beings with each other against nature, or 
 with a beast. See 2 Bish. Cr. Law, §§ 1191- 
 1196. 
 
 It may be committed between two persons 
 both of whom consent, even between husband 
 and wife ; 8 C. & P. 604 ; and both may be 
 indicted ; 1 Den. Cr. Cas. 464 ; 2 C. & K. 
 869. Penetration of the mouth is not sod- 
 omy; Russ. & R. 331. As to emission, see 
 12 Co. 36 ; 1 Va. Cas. 307. See 1 Russ. Cr. 
 «98; 1 Mood. Cr. Cas.- 34; 8 C. &P. 417; 
 3 Harr. & J. 154. 
 
 SOIL. The superficies of the earth on 
 which buildings are erected or may be erected. 
 
 The soil is the principal, and the building, 
 when erected, is the accessory. 
 
 SOIT DROIT FAIT AL FASTIE. 
 In English Law. Let right be done to the 
 party. A phrase written on a petition ot 
 right, and subscribed by the king. See Peti- 
 tion OF Right. 
 
 SOKEMANS. In English Law. Those 
 who held their land in socage. 2 Bla. Com. 
 100. 
 
 SOLAR DAY. That period of time 
 which begins at sunrise and ends at sunset ; 
 the same as " artificial day." Co. Litt. 135 o. 
 
 SOLAR MONTH. A calendar month. 
 Co. Litt. 135 6; 1 W. Blackst^ 450; 1 
 Maule & S. Ill ; 1 Bingh. 307. 
 
 SOLARES. In Spanish Law. Lots 
 of ground. This term is frequently found in 
 grants from the Spanish government ol lands 
 in America. 2 White, Recop. 474. 
 
 SOLD NOTE. The name of an instru- 
 ment in writing, given by a broker to a buyer 
 of merchandise, in which it is stated that the 
 
 foods therein mentioned have been sold to 
 im. 1 Bell, Com. 435 ; Story, Ag. § 28. 
 Some confusion may be found in the books as 
 to the name of these notes : they -are some- 
 times called bought notes. 
 
 SOLDIER. A military man ; a private: 
 in the army. 
 
 The constitution of the United States, 
 Amendm. art. 3, directs that no soldier shdl, 
 in time of peace, be quartered in any house, 
 without the consent of the owner; nor in 
 time of war, but in a manner to be pre- 
 scribed by law. 
 
 SOLE. Alone, single : used in contradis- 
 tinction to Joint or married. A sole tenant, 
 therefore, is one who holds lands in his own 
 right, without being joined with any other. 
 A feme sole is a single woman ; a sole cor- 
 poration is one composed of only one natural 
 person. 
 
 SOLEMNITY. The formality estab- 
 lished by law to render a contract, agree- 
 ment, or other act valid. 
 
 A marriage, for example, would not be 
 valid if made in jest and without solemnity. 
 See Marriage; Dig. 4. 1. 7; 45. 1. 30. 
 
 SOLICITATION OF CHASTITY. 
 The asking a person to commit adultery or 
 fornication. 
 
 This of itself is not an indictable ofience ; 
 Salk. 382 ; 2 Chitty, Pr. 478 ; 54 Penn. 209. 
 The contrary doctrine, however, has been 
 held in Connecticut ; 7 Conn. 267. In Eng- 
 land, the bare solicitation of chastity is pun- 
 ished in the ecclesiastical courts; 2 Chitty, 
 Pr. 478. See 2 Stra. 1100; 2 Ld. Raym. 
 809 ; Bish. Cr. Law, § 767 et seq. 
 
 The civil law punished arbitrarily the per- 
 son who solicited the chastity of another ; 
 Dig 47. 11. 1. 
 
 The term solicitation ie also used in connec- 
 tion with other offences, as, solicitation to lar- 
 ceny, sodomy, bribery, threatening notice. 1 
 Bish. Cr. L. § 767. Under the stat. of 24 & 25 
 Vict. c. 100, § i, whoever ^all solicit any one to 
 murder any other person, shall be guilty of a 
 misdemeanor. Under this act the editor of a 
 German paper In London was indicted and found 
 guilty, for having published an article com- 
 mending the assassination of the emperor of 
 Russia ; 7 Q. B. Div. 344 ; 1 Bish. Cr. L. 768 a. 
 
 SOLICITOR. A person whose business 
 IS to be employed in the care and manage- 
 ment of suits depending in courts of chan- 
 cery. 
 
 A solicitor, like an attorney, will be re- 
 quired to act with perfect good faith towards 
 his clients. He must conform to the autho- 
 rity given him. It is said that to institute a 
 suit he must have a special authority, al- 
 though a general authority will be sufficient 
 to defend one. The want of a written autho- 
 rity may subject him to the expenses incurred 
 in a suit ; 3 Mer. 12. See 1 Phill. Ev. 192 ; 
 2 Chitty, Pr. 2. See Attorney at Law ; 
 Counsellor at Law ; Proctor. 
 
 Under a Nevada statute, the term has been 
 held to apply to all individuals who are engaged 
 
SOLICITOK-GEN^RAL 
 
 648 
 
 SOMNAMBULISM 
 
 or employed epecially for the purpose of solici- 
 ting, importuning, or entreating, for the pur- 
 chase of goods, etc.; 10 Eep. 175. In this sense 
 the term is used in the statutes of some states, 
 authorizing the levying of license taxes. See 11 
 Cent. L. J. 159. 
 
 Solicitors have hitherto heen regarded as offi- 
 cers of the court of chancery; and it has been the 
 usual course that, as soon as any one has been the 
 admitted an attorney, he should apply to be ad- 
 mitted a solicitor, which is done by the Master 
 of the BoUs as a matter of course. Hunt. Eq. 
 PI. III., c. 6. But now by the Judicature Act 
 of 1873, s. 87, all solicitors, attorneys and procr 
 tors are to be henceforth called solicitor of the 
 supreme court ; Moz. & W. 
 
 SOIiICITOR-GBNERAL. In English 
 Iiaiv. A law officer of the crown, appointed 
 by patent during the royal pleasure, and who 
 assists the attorney-general in managing the 
 law business of the crown. Selden, 1. 6. 7. 
 He is first in right of preaudience ; 3 Sharsw. 
 Bla. Cora. 28, n. (a), n. 9; Encyc. Brit. 
 
 SOLICITOR OF THE SUPREME 
 COTTRT. The solicitors before the supreme 
 courts, in Scotland, are a body of solicitors 
 entitled to practice in the court of session, 
 etc. Their charter of incorporation bears date, 
 August 10th, 1797. 
 
 SOLICITOR OF THE TREASURY. 
 
 The title of one of the officers of the United 
 States, created by the act of May 29, 1830 ; 
 he is appointed by the President, by and with 
 the advice and consent of the Senate, and is 
 under the supervision of the Department of 
 Justice ; R. S. § 349. 
 
 SOLIDO, IN. See In Solido. 
 
 SOLUTIO (Lat. release). In Civil Law. 
 Payment. By this term is understood every 
 species of discharge or liberation, which is 
 called satisfaction, and with which the creditor 
 is satisfied. Di^. 46. 3. 54 ; Code 8. 48. 17 ; 
 Inst. 3. 30. This term has rather a reference 
 to the substance of the obligation than to the 
 numeration or counting of the money ; Dig. 
 50. 16. 176. ^ 
 
 SOLUTIO INDBBITI (Lat.). In Civil 
 Law. The case where one has paid a debt, 
 or done an act or remitted a claim because 
 lie thought that he was bound in law to do so, 
 when he was not. In such cases of mistake 
 there is an implied obligation (^quasi ex con- 
 tractu) to pay back the money, etc. Mac- 
 keldey. Civ. Law, § 468. 
 
 SOLVENCY. The state of a person who 
 is able to pay all his debts : the opposite of 
 insolvency, q. v. 
 
 SOLVENT. One who has sufficient to 
 pay his debts and all obligations. Dig. 50. 
 16. 114. 
 
 A person is solvent who owns property 
 enough and so situated that all his debts can 
 be collected from it by legal proceedings ; 13 
 Wend. 377; 53 Barb. 547. But other cases 
 hold that to be solvent one must be able to 
 pay all his debts in the ordinary course of 
 trade ; see 2 N. B. R. 149. See Insolvency. 
 
 SOLVERE (Lat. to unbind ; to untie) 
 To release; to pay ; solvere dicinus eum qui 
 fecit quod facere promisit. 1 Bouvier inat 
 n. 807. ' 
 
 SOLVIT AD DIEM {Lat. he paid at the 
 day). The name of a plea to an action on a 
 bpnd, or other obligation to pay money, by 
 which the defendant pleads that he paid the 
 money on the day it was due. See 1 Stra, 
 662 ; Rep. temp. Hardw. 133 ; Comvns. Die 
 Pleader (2 W. 29). ' • K- 
 
 This plea ought to conclude with an aver- 
 ment, and not to the country; 1 Sid 215- 
 12 Johns. 253. See 2 Phill. Ev. 92; Coxe' 
 N. J. 467. ' 
 
 SOLVIT POST DIEM (Lat. he paid 
 after the day). The name of a special plea 
 in bar to an action of debt on a bond, by 
 which the defendant asserts that he paid the 
 money after the day it became due. 1 Chitty," 
 PL 480, 555; 2 Phill. Ev. 93. 
 
 SOMNAMBULISM(Lat.OTmnim, 
 
 sleep ; ambulo, to walk). Sleep-walking. 
 
 The mental condition in this aB'ection is not 
 very unlike that of dreaming. Many of their 
 phenomena are the same ; and the former differs 
 from the latter chiefly in the larger number of 
 the functions involved in the abnormal procesB, 
 In addition to the mental activity common to 
 both, the somnambulist enjoys the nee of bis 
 senses in some degree, and the power of locomo- 
 tion. He is thereby enabled to perform manual 
 operations as well, frequently, as in his waking 
 state. The farmer goes to his bam and threslie* 
 his grain; the house-servant lights a fire and 
 prepares the breakfast for the family; and the 
 scholar goes to his desk and writes or reads. 
 Usually, however, the action of the senses is 
 more or less imperfect, many of the impressions 
 being incorrectly or not at all perceived. The 
 person walks against a wall, or stumbles over an 
 object in his path ; he mistakes some projections 
 for a horse, strides across it, and imagines him- 
 self to be riding; he hears the faintest sound 
 connected with what he is doing, while the voicea 
 of persons near him, and even the blast of a 
 trumpet, are entirely unnoticed. Occasionally 
 the power of the senses is increased to a degree 
 unknown in the waking state. Jane Rider, whose 
 remarkable history was published some thirty 
 years ago, could read the almost obliterated dates 
 of coins in a dark room, and was able to read and 
 write while her eyes were covered with several 
 folds of handkerchief. For the most part, how- 
 ever, the opei-ations of the somnambulist consist 
 in getting up while asleep, groping about in the 
 dark, endeavoring to make his way out of the 
 house through doors or windows, making some 
 inarticulate sounds, perhaps, and all the while 
 unconscious of persons or things around him. 
 The power of the perceptive faculties, as well as 
 that of the senses, is sometimes increased in a 
 wonderful degree. It is related of the girl just 
 mentioned that in the fit she would sing correctly, 
 and play at backgammon with considerable skill, 
 though she had never done either when awake. 
 
 The somnambulist always awakes suddenly, 
 and has but a faint conception, if any, of what 
 he has been thinking and doing. If conscious 
 of anything, it is of an unpleasant dream imper- 
 fectly remembered. This fact, not being gener- 
 ally known, will often enable us to detect simu- 
 lated somnambulism. If the person on waking 
 continues the same train of thought and pursue* 
 
SON 
 
 649 
 
 SOUNDNESS 
 
 the same plans and purposes which he did while 
 asleep, there can be no doubt that he is feigning 
 the affection. When a real somnambulist, for 
 some criminal purpose, undertakes to simulate 
 a paroxysm, he is not at all likely to imitate one 
 of his own previous paroxysms, for the simple 
 reason that he knows less than others how he ap- 
 peared while in them. If, therefore, somnambul- 
 ism is alleged in any given case, with no other 
 proof than the occurrence of former paroxysms 
 unquestionably genuine, it must be viewed with 
 suspicion if the character of the alleged paroxysm 
 differs materially from that of the genuine ones. 
 In one way or another, a case of simulation 
 would generally be detected by means of a close 
 and intelligent scrutiny, so difficult is it to imi- 
 tate that mixture of consciousness and uncon- 
 sciousness, of dull and sharp perceptions, which 
 somnambulism presents. The history of the in- 
 dividual may throw some light on the matter. 
 If he has had an opportunity of witnessing the 
 movements of a somnambulist in the course of 
 his life, this fact alone would rouse suspicion, 
 which would be greatly increased if the alleged 
 paroxysm presented many traits like those of the 
 paroxysms previously witnessed. 
 
 Tbe legal consequences of somnambulism 
 should be precisely those of insanity, which 
 it so nearly resembles. The party should be 
 exempt from punishment for his criminal 
 acts, and be h6ld amenable in damages for 
 torts and trespasses. The only possible ex- 
 ceptions to this principle is to be found in 
 those cases where the somnambulist, by medi- 
 tating long on a criminal act while awake, is 
 thereby led to commit it in his next par- 
 oxysm. Hoff bauer contends that, such being 
 generally the fact, too much indulgence ought 
 not to be shown to the criminal acts of the 
 somnambulist. Die Psychologie, etc. c. 4; 
 art. 2. But surely this is rather refined and 
 hazardous speculation, and seems like pun- 
 ishing men solely for bad intentions, — ^because 
 the acts, though ostensibly the ground of 
 punishment, are actually those of a person 
 deprived of his reason. The truth is, how- 
 ever, that criminal acts have been committed 
 in a state of somnambulism by persons of 
 irreproachable character. See Gray, Med. 
 Jttr. 265; Whart. & S. Med. Jur. § 492; 
 Rush on the Mind, 302 ; 18 Am. Journ. of 
 Ins. 236. Tirrell's case, Mass. 
 
 SON. An immediate male descendant. 
 In.its technical meaning in devises, this is a 
 word of purchase ; but the testator may make 
 it a word of descent. Sometimes it is ex- 
 tended to more remote descendants. 2 Des. 
 123, n. 
 
 SON ASSAULT DEMESNE (L. Fr. 
 
 his own first assault). In Pleading. A 
 form of a plea to justify an assault and bat- 
 tery, by which the defendant asserts that the 
 plaintiff committed an assault upon him and 
 the defendant merely defended himself. 
 
 When the plea is supported by evidence, 
 it IS a sufficient justification, unless the retali- 
 ation by the defendant were excessive and 
 bore no proportion to the necessity or to the 
 provocation received ; 1 East, PI. Cr. 406 ; 
 i Denio, 448. 
 
 SON-IN-LA'W. The husband of one's 
 daughter. 
 
 SORS (Lat.). In Civil Law. A lot; 
 chance ; fortune. Calvinus, Lex.; Aius- 
 worth. Diet. Sort.; kind. The little scroll on 
 which the thing to be drawn by lot was writ- 
 teTi. Carpentier, Gloss. A principal or capital 
 sum : e.g. the capital of a partnership. Cal- 
 vinus, Lex. 
 
 In Old English Law. A principal lent 
 on interest, as distinguished from the interest 
 itself. Pryn. Collect, p. 161 ; Cowel. 
 
 SOTTL SCOT. A mortuary, or customary 
 gift due ministers, in many parishes of Eng- 
 land, on the death of parishioners. It was 
 originally voluntary and intended as amends 
 for ecclesiastical dues neglected to be paid iu 
 the lifetime. 2 Sharsw. Bla. Com. 425*. 
 
 SOUND MIND. That state of a man's 
 mind which is adequate to reason and comes 
 to a. judgment upon ordinary subjects like 
 other rational men. 
 
 The law presumes that every person who 
 has acquired his full age is of sound mind, 
 and, consequently, competent to make con- 
 tracts and perform all his civil duties ; and he 
 who asserts to the contrary must prove the 
 affirmation of his position by explicit evi- 
 dence, and not by conjectural proof ; 2 Hagg. 
 Eccl. 434 ; 3 Add. Eccl. 86 ; 8 Watts, 66 ; 
 Ray, Med. Jur. § 92 ; 3 Curt. Eccl. 671. 
 
 SOUNDING IN DAMAGES. When 
 an action is brought, not for the recovery of 
 lands, goods, or sums of money (as is the case 
 in real or mixed actions or the personal ac- 
 tion of debt or detinue), but for damages 
 only, as in covenant, trespass, etc., the action 
 is said to be sounding in damages. Steph. 
 126. 
 
 SOUNDNESS. General health ; free- 
 dom from any permanent disease. 1 Carr. & 
 M. 291. To create unsoundness, it is re- 
 quisite that the animal should not be useful 
 for the purpose for which he is bought, and 
 that inability to be so useful should arise from 
 disease or accident; 2 Mood. & E,. 113, 137 ; 
 9 M. & W. 670. 
 
 In the sale of animals they are sometimes 
 warranted by the seller to be sound ; and it 
 becomes important to ascertain what is sound- 
 ness. Horses afiected by roaring ; a tempor- 
 ary lameness, which rendered the horse less 
 fit for service ; 4 Camp. 271 ; but see 2 Esp. 
 Cas. 573 ; a cough, unless proved to be of a 
 temporary nature; 2 Chitty, Bail, 245, 416 ; 
 and a nerved horse ; Ey. & M. 290 ; have 
 been held to be unsound. But crib-biting is 
 not a breach of a general warranty of sound- 
 ness ; Holt, Cas. 630 ; but see 8 Gray, 430 ; 
 43 Vt. 608. The true test is whether the de- 
 fect complained of renders the horse less than 
 reasonably fit for present use; 9 M. & 
 W. 668. See Oliph., Hanover, on Horses ; 
 Benj. Sales, § 619. 
 
 An action on the case is the proper reme«ly 
 for a verbal warrant of soundness; 1 H. 
 
SOURCES OF THE LAW 
 
 650 
 
 SOUTH CAROLINA 
 
 Blackst. 17 i 9 B. & C. 259 ; 2 Dowl. & R. 
 10 ; 1 Taunt. 566 ; Bacon, Abr. Action on 
 the Case (£) ; see Oliphant, Horses ; 4th ed. 
 (1882); Hanover, Horses, (1875). 
 
 SOURCES OF THE LAW. The au- 
 thority from which the laws derive their 
 force. A term used to include all the relia- 
 ble testimonials of what constitutes the law. 
 
 The power of making all laws is in the people 
 or their representatives, and none can have any 
 force whatever which is derived from any other 
 source. But it is not required that the legislator 
 shall expressly pass upon all laws, and give the 
 sanction of his seal, before they can have life or 
 existence. The laws are, therefore, such as have 
 received an express sanction, and such as^derive 
 their force and effect from implication! The first, 
 or express, are the constitution of the United 
 States, and the treaties and acts of the legislature 
 which have been made by virtue of the authority 
 vested by the constitution. To these must he 
 added the constitution of the state, and the laws 
 made by the state legislature, or by other subor- 
 dinate legislative bodies, by virtue of the author- 
 ity conveyed by such constitution. The latter, 
 or tacit, received their effect by the general use 
 of them by the people — ^when they assume the 
 name of customs — or by the adoption of rules 
 by the courts from systems of foreign laws. 
 
 The express laws are — ^first, the constitution of 
 the United States; secondly, the treaties made 
 with foreign powers ; thirdly, the acts of con- 
 gress ; fourthly, the constitutions of the respec- 
 tive states ; fifthly, the laws made by the several 
 state legislatures ; sixthly, the laws made by in- 
 ferior legislative bodies, such as the councUs of 
 municipal corporations, and the general rules 
 made by the courts. 
 
 The constitution is an act of the people them- 
 selves, made by their representatives elected for 
 that purpose. It is the supreme law of the land, 
 and is binding on all future legislative bodies 
 until it shall be altered, by the authority of the 
 people, in the manner provided for in the instru- 
 ment itself; and if an act be passed contrary to 
 the provisions of the constitution It is, ipso facto, 
 void ; 3 Pet. 533 ; 13 Wheat. 370 ; 8 Ball. 309 ; 
 8 id. 886 ; 4 id. 18 ; 6 Cra. 138. 
 
 Treaties made under the authority of the con- 
 stitution are declared to be the supreme law of 
 the land, and, therefore, obligatory on courts ; 1 
 Cra. 103. See Tbeatt. 
 
 The acts and resolutions of congress enacted 
 constitutionally are, of course, binding as laws, 
 and require no other explanation. 
 
 The constitutions of the respective states, if 
 not opposed to the provisions of the constitution 
 of the United States, are of binding force in the 
 states respectively ; and no act of the state legis- 
 lature has any force which is made in contraven- 
 tion of the state constitution. 
 
 The laws of the several states constitutionally 
 made by the state legislatures have full and com- 
 plete authority In the respective states. 
 
 Laws are frequently made by inferior legisla- 
 tive bodies which are authorized by the legisla- 
 ture : such are the municipal councils of cities or 
 boroughs. Their laws are generally known by the 
 name of ordinances, and when lawfully ordained 
 they are binding on the people. The courts, per- 
 haps by a necessary usurpation, have been in the 
 practice of mailing general rules and orders, 
 which sometimes affect suitors and parties as 
 much as the most regular laws enacted by con- 
 gress. These apply to all future cases. There 
 are also rules made in particular cases as they 
 arise : but these are rather decrees or judgments 
 than laws. 
 
 The tacit laws, which derive their authoritv 
 from the consent of the people without anv 
 legislative enactment, may be subdivided iDto — 
 
 The common law, which is derived from two 
 sources, — the common law of England, and the 
 practice and decisions of our own courts. In 
 some states it has been enacted that the common 
 law of England shall be the law, except where 
 the same is inconsistent with our conBtitntions 
 and laws. See Law. 
 
 Customs which have been generally adopted by 
 the people have the force of law. 
 
 The principles of the Soman law, being gene- 
 rally founded in superior wisdom, have iuemu- 
 ated themselves into every part of the law. Many 
 of the refined rules which now adorn the com- 
 mon law appear there without any acknowledg- 
 ment of their paternity ; and It is at this source 
 that some judges dipped to get the wisdom which 
 adorns their judgments. The proceedings of 
 the courts of equity, and many of the admira- 
 ble distinctions which manifest their wisdom, are 
 derived from this source. To this fountain of 
 wisdom the courts of admiralty owe most of the 
 law which governs in admiralty cases. 
 
 The Canon law, which was adopted by the ec- 
 clesiastical courts, figures in our laws respecting 
 marriage, divorces, wills and testaments, execu- 
 tors and administrators, and many other sub- 
 jects. 
 
 The jitrisprudence, or decisions of the various 
 courts, have contributed their full share of what 
 makes the law. These decisions are made by 
 following precedents, by borrowing from the 
 sources already mentioned, and sometimes by the 
 less excusable disposition of the judges to legis- 
 late on the bench. 
 
 The monument where the common law Is to 
 be found are the records, reports of cases adju- 
 dicated by the courts, and the treatises of learned 
 men. The books of reports are the best proof 
 of what is the common law ; but, owing to the 
 difficulty of finding out any systematic arrange^ 
 ment, recourse is had to treatises upon the va- 
 rious branches of the law. The records, owing 
 to their being kept in one particular place and 
 therefore not generally accessible, are seldom 
 used. 
 
 SOUS SEING PRIVE. In Louisiana. 
 
 An act or contract evidenced by writing un- 
 der the private signature of the parties to it. 
 The term is used in opposition to the authen- 
 tic act, which is an agreement entered into 
 in the presence of a notary or other public 
 officer. 
 
 The form of the instrument does not give 
 it its character so much as the fact that it 
 appears or does not appear to have been exe- 
 cuted before the officer ; 5 Mart. La. N. 8. 
 196; 7 id. 548. 
 
 The effect of a sous seing privi is not the 
 same as that of the authentic act. The for- 
 mer cannot be given in evidence until proved, 
 and, unless accompanied by possession, i*^"^ 
 not, in general, aflect third persons ; 6 Mart. 
 La. N. s. 429, 432 ; the latter, or authentic 
 acts, are full evidence against the parties ana 
 those who claim under them ; 8 Mart. La. u- 
 s. 182. 
 
 SOUTH CAROLINA. One of the ori- 
 ginal thirteen United States. 
 
 This state was originally part of the British 
 province of CaroHno, then comprehending noin 
 North Carolina and South Carolina. That pro- 
 
SOUTH CAROLINA 
 
 651 
 
 SOUTH CAROLINA 
 
 Tince was granted by Charles 11., by charter is- 
 sued to eight lord proprietors, in 1663,and amend- 
 ed in 1665 so as to extend It from north latitude 
 twenty-nine degrees to thirty-six degrees thirty 
 minutes, and include it within parallel lines 
 drawn from these points on the Atlantic to the 
 Pacific ocean. The first permanent settlement 
 in South Carolina was effected in 1670 by emi- 
 grants from England who landed at Beaufort, 
 then Port Royal, in the same year and removed 
 to the point on the river Ashley nearly opposite 
 the present site of Charleston ; but, abandoning 
 this position, they again removed, in 1680, to 
 Oyster Point, at the confluence of the Ashley and 
 Cooper, where they began Charleston. 
 
 In 1719, the colonial legislature disowned the 
 proprietary government and threw the colony 
 into the hands of the king, who, accordingly, as- 
 sumed the control of it. It was not, however, 
 until 1729 that the charter was surrendered. In 
 that year the shares of seven out of the eight 
 lords proprietors were ceded. The eighth share, 
 which belonged to the family of Lord Granville, 
 formerly Cartaret, was retained, and laid off in 
 North Carolina, — which was about the same 
 time finally divided from South Carolina. 
 
 In 1732, that part of South Carolina lying west 
 of the river Savannah was granted by the crown 
 to the Georgia Company, under Oglethorpe. 
 Thus South Carolina was reduced In extent, and, 
 in consequence of subsequent arrangements of 
 boundaries, made with Georgia in 1787 in the 
 treaty of Beaufort, and with North Carolina in 
 the early part of the present century, is now 
 separated from those two states, by a line begin- 
 ning at a cedar stake, marked with nine notches, 
 planted near the mouth of Little river on the 
 Atlantic (north latitude thirty-ilve degrees eight 
 minutes), and running by various traverses a 
 wesf^northwest course to the forks of the Cataw- 
 ba, thence irregularly a west course to a point of 
 intersection in the Appalachian mountains, from 
 which it proceeds due south to the Chattooga, 
 and thence along the Chattooga, Tugaloo, 
 Keowee, and the Savannah (as regulated by the 
 treaty of Beaufort) to the most northern mouth 
 of the latter river on the Atlantic. 
 
 On the twenty-sixth of March, 1776,she adopted 
 her first constitution, — the earliest it is believed, 
 of the Amerian constitutions. This constitution 
 was replaced in 1778 by another, and that in 1790 
 by yet another. Some amendments were made in 
 1808, ,1810, 1816, 1828 and 1834. In 1865 a new 
 constitution was adopted. This In its time was 
 succeeded by that of 1868, which, with the 
 amendments of 1873 and 1876, forms the present 
 constitution of the state. 
 
 The Leoislative Power. — The legislative 
 rpower consists of two chambers, a senate and a 
 house of representatives. This legislature, by 
 joint ballot of the two houses, elects the judges 
 of the supreme and circuit courts, and formerly 
 elected all the state and district officers. 
 
 The Senate is composed of One member from 
 each county as now established for the election 
 of the house of representatives, except the county 
 of Charleston, to which shall be allowed two 
 senators; Cons. 1868, Art. II. § 8. The members 
 are elected for four years, one half going out of 
 office each second year. The election takes 
 place on the first Tuesday following the first 
 Monday in November. Amend, approved 29th of 
 January, 1873. 
 
 The Souse of Representatives consists of one 
 hundred and twenty-four members, apportioned 
 among the counties according to their population , 
 elected for two years, Art. IT. §§3 and 4, at the 
 same time that the election of senators is held. 
 
 No per^n is eligible to a seat in the senate 
 unless he is of the age of twenty-five years and 
 is a citizen of the United States, and has been a 
 resident in the state one year next previous his 
 election and for three months next preceding his 
 election a resident of the county. The requisi- 
 tions of members of the house are the same ex- 
 cept as to age, which with these is fixed at 
 twenty-one years. No one convicted of an infam- 
 ous crime or who has fought a duel or sent or 
 accepted a challenge for that purpose or has 
 been an alder or abettor in a duel is ineligible 
 to these or in fact any other office of honor or 
 trust. Those holding offices of profit or trust 
 under this state, the United States or any of them 
 or under any other power, except officers of the 
 militia and receiving no pay, are also ineligible. 
 
 Every male citizen of the United States who 
 has resided in the state one year previous to the 
 day of election, and in the county in which he 
 offers to vote sixty days next preceding any elec- 
 tion, has a right to vote for a member or mem- 
 bers to serve in either branch of the legisla^ 
 ture. 
 
 The Executive Power. — The Governor.. No 
 person is eligible to the office of governor who 
 denies the existence of the Supreme Being or 
 who has not attained the age of thirty years and 
 has not been a citizen of the United States, and 
 a citizen and resident of this state two years. 
 
 He is elected, by the electors qualified to vote 
 for members of the house of representatives, for 
 two years and until his successor is chosen and 
 qualified. The governor is commander-in-chief 
 of the militia, except when they shall be called 
 into the actual service of the United States. He 
 may grant reprieves and pardons after convic- 
 tion, except in cases of impeachment, and remit 
 fines and forfeitures unless otherwise directed by 
 law, shall cause the laws to be faithfully exe- 
 cuted in mercy, may require information from 
 the executive departments, shall recommend 
 such measures as he may deem necessary, and 
 give the assembly information as to the condition 
 of the state, may on extraordinary occasions con- 
 vene the assembly, and in case of disagreement 
 between the two houses with respect to the time 
 of adjournment, or should either house remain 
 without a quorum for five days he may adjourn 
 them to such time as he shall think proper, not 
 beyond the time of the annual session then next 
 ensuing. 
 
 A JUeutenant- Governor is to be chosen at the 
 same time, in the same manner, continue in office 
 for the same period, and be possessed of the 
 same qualifications, as the governor, and shall 
 be ex-offlclo president of the senate. In case of 
 the Impeachment of the governor or his removal 
 from office, death, resignation, or removal from 
 the state, or his Inability to discharge the powers 
 and duties of the office, the lieutenant-governor 
 succeeds to his office. And for the case of the i m- 
 peachment of the lieutenant-governor or his re- 
 moval from office, death, resignation, or inabil- 
 ity, the legislature held first after the ratification 
 of the present constltution'was directed to pro- 
 vide. The provision is that, the president of the 
 senate, or in case of his disability the speaker of 
 the house succeeds to his office till the disability 
 is removed or till the next general election. 
 
 The Judicial Power. — The judicial power is 
 vested In a supreme court, two circuit courts 
 (common pleas and general sessions), probate 
 courts, justices of the peace, and such municipal 
 and Inferior courts as the legislature shall from 
 time to time direct and establish. The judges 
 of the supreme court hold their offices for six 
 
SOUTH CAROLINA 
 
 652 
 
 SOUTH CAROLINA 
 
 years and the judges of circuit and probate 
 courts hold them for two years. Justices of the 
 peace have never been elected. Judges of the 
 supreme and circuit courts are, at stated times, 
 to receive a compensation forthelr services, which 
 cannot be diminished during their continuance in 
 office ; but they are to receive no fees or perqui- 
 sites of office nor hold any other office of profit or 
 trust under the state, the United States, or any 
 other power. Art. 3, s. 1. 
 
 The Supreme Court has appellate jurisdiction 
 only in cases of chancery, and otherwise is a 
 court for the correction of errors at law. It has 
 power to issue writs of injunction, mandamus, 
 quo warranto, habeas corpus and such other 
 original and remedial -writs as may be necessary. 
 It must hold one term in the year at the capital 
 of the state and one at such other place as the 
 legislature may direct. At present both terms 
 (April and November) are held at Columbia. 
 
 The Circuit Coiirts are held twice a year in all 
 the counties except in Charleston, Orangeburg, 
 Rushland, Greenville, in which three terms are 
 held. The courts of probate are always open. 
 
 The Circuit Courts have exclusive jurisdic- 
 tion of all cases of divorce, and in all civil mat- 
 ters both ex contractu and ex delicto^ when the 
 amount Involved is over $100, and concurrent 
 jurisdiction with the trial justices court in all 
 other cases, and in criminal matters all felonies 
 and crimes punishable by more than a fine or 
 imprisonment of more than thirty days. These 
 courts have also power to issue writs of manda- 
 mus, prohibition, scire facias, and all other writs 
 necessary to carry their powers fully into efifect. 
 It has appellate jursidiction for the court of 
 trial justice of probate. The process runs 
 throughout the state ; but trials in criminal cases 
 and in civil cases relating to real estate are con- 
 fined to the county where the cause of prosecu- 
 tion or of suit arose. 
 
 The Probate Courts have jurisdiction in all 
 matters testamentary and of administration ; in 
 business appertaining to minors and the allot- 
 ment of dower, in cases of idiotcy and lunacy, 
 and of persons non compotes. 
 
 Justices of the Peace are to be elected by 
 the qualified electors of members of the house 
 for two years. Their jurisdiction extends to all 
 cases of bastardy and in all actions ex contractu 
 and ex delicto when the amount involved does not 
 exceed $100 ; and prosecutions for assault and 
 battery, other penal offences less than felony, 
 punishable by fines only. 
 
 The legislature has never carried into effect 
 this provision of the constitution and organized 
 these courts. In their stead there have been or- 
 ganized one of the inferior courts, the trial- 
 justice court. 
 
 The judges may be impeached before the sen- 
 ate for high crimes and misdemeanors, misbe- 
 havior in office, corruption in procuring office, 
 or any act degrading their official character, and 
 for any wilful neglect of duty or other reason- 
 able cause which is not sufficient ground for im- 
 peachment, they may be removed by the govei-- 
 nor on the address' of two thirds of each 
 house. 
 
 There was formerly an appellate bench for 
 each jurisdiction, law and equity (apart from 
 one another), consisting of the law judges for 
 the one and the chancellors for the other. This 
 plan continued until 1824, when a separate court 
 of appeals, consisting of three judges, was estab- 
 lished for both, jurisdictions. This court was 
 broken up in 1835, by electing its members to the 
 equity and law branches respectively, and an ap- 
 peal bench was constituted, in its stead, of all 
 
 the chancellors and judges. This arrangement 
 after one year's trial, was given up in 1836 and' 
 the appeal benches as originally existing were 
 restored, with an obligation, however, to carry 
 the cause or the question, when a constitutional 
 point arose, before all the chancellors and judges 
 and a right, also, to carry it before them on the 
 request of any two chancellors or judges. This 
 last resort was denominated the court of errors 
 In December, 1859, a separate court of appeals 
 was again established in three judges, with a re- 
 sort to all the chancellors and judges on consti- 
 tutional questions or on the request of two ap- 
 peal judges. In 1868 the present supreme court 
 consisting of a chief justice and two associate 
 justices was established. 
 
 The State i?cportej- is appointed by the supreme 
 courts. There are no county' courts. 
 
 JtiKisPKDDENCE. By a colonial statute passed 
 1712, the common law of England, not unsuit- 
 able to the condition of the colony, was adopted, 
 together with leading English statutes selected 
 and enumerated. Among the latter were the 
 statutes relating to the writ habeas corpus and 
 to the confirmation of Magna Charta, 9 Edw. I. 
 A..D. 1297. The constitution of 1790 secures 
 rights in the following particulars, among 
 others : — an independent judiciary, the freedom 
 of religion, not amounting to licentiousness nor 
 inconsistent with public jieace and safety, subor- 
 dination of military to civil power, perpetuation 
 of jury trial, liberty of the press, no hereditary 
 offices or titles, inhibition of excessive bail, ex- 
 cessive fines, and cruel punishments, that no 
 freeman of this state shall be taken or impri- 
 soned, or disseised of his freehold, liberties, or 
 privileges, or outlawed, or exiled, or in any man- 
 ner destroyed or deprived of his life, liberty, or 
 property, but by the judgment of his peers or by 
 the law of the land (it is not, however, farther 
 declared that private property shall be taken for 
 public use only by direct act of the legislature, 
 by giving contemporaneously fuU bona fide com- 
 pensation for the property taken and the injury 
 therefrom accruing, or by authority conferred by 
 the legislatui;e by statute prescribing the rule by 
 which similat" compensation shall be made) ; 
 that no bill of attainder, ex post facto law, 
 or law impairing the obligations of contract* 
 shall ever be passed by the legislature of this 
 state. 
 
 The people have also by this constitution en- 
 deavored to secure themselves against their own 
 caprice, by anticipating that no alteration of this 
 instrument shall be made except by bill read three 
 times in each house, agreed to by two-thirds of 
 both houses, and (after an intervening election 
 securing three months' previous publication of 
 the bill) passed, by a similar process, at the im- 
 mediately consecutive session. And, by an amend- 
 ment adopted in 1810, it is also provided that no 
 convention of the people shall be called but by 
 the concurrent vote of both branches of tlie legis- 
 lature. These provisions remain substantially 
 now. Three months' previous publication is not 
 required by the present constitution. But the 
 people must now by separate ballots vote for or 
 against every proposed constitutional amendment 
 at the election next succeeding the legislature 
 passing the proposed amendment. Even after this 
 vote of the people the next succeeding legislature 
 must adopt the amendment by a two-thirds vote 
 after three readings. By the present constitution 
 a convention to amend the constitution cannot 
 be called by the legislature. It can only recom- 
 mend one. The people vote directly on that 
 recommendation. 
 
 These constitutional and fundamental provisions 
 
SOVEREIGN 
 
 653 
 
 SPECIAL ASSUMPSIT 
 
 wd tbe commOD law, and leading Englteh stat- 
 utes, adopted in 1712, together with the statutes 
 subsequently enacted, and the decisions of the 
 courts, constitute the law of the state. 
 
 By an act of 1873 aliens are allowed to hold 
 real estate in the same manner as natural-born 
 citizens. 
 
 SOVEREIGN. A chief ruler with su- 
 preme power; a kinf; or other ruler with lim- 
 ited power. Ari action is not maintainable 
 auainsV a foreign sovereign ; 44 L. T. Rep. 
 n! 8. 199. 
 
 In English Latr. A gold coin of Great 
 Britain, of the value of a pound sterling. 
 
 SOVEREIGN STATE. One which gov- 
 erns itself independently of any foreign power. 
 
 SOVEREIGNTY. The union and exer- 
 cise of all human power possessed in a state : 
 it is a combination of all power; it is the 
 power to do everything in a state without ac- 
 countability, — to make laws, to execute and 
 to apply them, to impose and collect taxes 
 and levy contributions, to make war or peace, 
 to form treaties of alliance or of commerce 
 with foreign nations, and the like. Story, 
 Const. § 207. 
 
 Abstractly, sovereignty resides in the body 
 of the nation and belongs to the people. But 
 these powers are generally exercised by dele- 
 gation. 
 
 When analyzed, sovereignty is naturally 
 divided into three great powers : namely, the 
 legislative, the executive, and the judiciary : 
 the first is the power to make new laws and 
 to con-ect and repeal the old ; the second is 
 the power to execute the laws, both at home 
 and abroad ; and the last is the power to ap- 
 ply the laws to particular facts, to judge the 
 disputes which arise among the citizens, and 
 to punish crimes.^ 
 
 Strictly speaking, in our republican forms 
 of government the absolute sovereignty of 
 the nation is in the people of the nation ; and 
 the residuary sovereignty of each state, not 
 granted to any of its public functionaries, is 
 in the people of the state ; 2 Dall. 471. And 
 see, generally, 2 Dalt. 433, 455 ; 3 id. 93 ; 1 
 Stopy, Const. § 208 ; 1 Toullier, n. 20 ; Mer- 
 lin, Bfepert. Lieber's Hermenentics, p. 250. 
 
 SOWNE. A corruption of the French 
 souveim, remembered. Estreats that suwne 
 are such as the sheriff may gather ; Cowel. 
 See Estreat. 
 
 SPADONES (Lat.). In Civil Law. 
 
 Those who, on account of their temperament 
 or some accident they have suffered, are unable 
 to procreate. Inst. 1. 11. 9 ; Dig. 1. 7. 2. 1. 
 And see Impotence. 
 
 SPARSIM (Lat.). Here and there ; in 
 a scattered manner ; sparsely ; dispersedly. 
 It is sometimes used in law : for example, the 
 plaintiff may recover the place wasted, not 
 only where the injury has been total, but 
 where trees growing sparsim in a close are 
 <;ut ; Bacon, Abr. Waste {M.) ; Brownl. 240. 
 
 SPEAK. A term used in the English 
 law to signify the permission given by a court 
 
 to the prosecutor and defendant, in some 
 cases of misdemeanor, to agree together, after 
 which the prosecutor comes into court and 
 declares himself to be satisfied; when the 
 court pass a nominal sentence. 1 Chitty, 
 Pr. 17. 
 
 SPEAKER. The title of the presiding 
 officer of the house of representatives of the 
 United States. The position is one of great 
 importance, as the speaker appoints the 
 standing committees of the house. The pre- 
 siding ofiicer of either branch of the state 
 legislature generally is called the speaker. 
 
 Both houses of parliament are presided over 
 by a speaker. That of the house of lords is com- 
 monly the lord chancellor, or lord keeper of the 
 great seal, though the latter oflSoe is practically 
 merged in that of lord chancellor. In the com- 
 mons the speaker never votes, except when the 
 votes are equal ; in the lords he has a vote with 
 the rest of the house ; see May, P. L. eh. 7. 
 
 SPEAKING DEMURRER. In Plead- 
 ing. One which alleges new matter in addi- 
 tion to that contained in the bill as a cause for 
 demurrer. 4 Bro. C. C. 254 ; 2 Ves. 83 ; 4 
 Paige, Oh. 374. 
 
 SPEAKING "WITH PROSECUTOR. 
 A kind of imparlance, allowed in English 
 practice, where the court permits a defendant 
 convicted of a misdemeanor to speak with the 
 prosecutor before judgment is pronounced ; if 
 the prosecutor declares himself satisfied, the 
 court may inflict a trivial punishment. 4 
 Steph. Com. 234. 
 
 SFECIAIi. That which relates to a par- 
 ticular species or kind ; opposed to general : 
 as, special verdict and general verdict ; spe- 
 cial imparlance and general imparlance ; spe- 
 cial jury, or one selected for a particular case, 
 and general jury ; special issue and general 
 issue, etc. 
 
 The meaning of special, as used in a con- 
 stitutional provision authorizing the legislature 
 to confer jurisdiction in special cases, has 
 been the subject of much discussion in the 
 court of appeals of the state of New York. 
 See 12 N. Y. 593 ; 18 id. 57. 
 
 SPECIAL ACCEPTANCE. The quali- 
 fied acceptance of a bill of exchange, as pay- 
 able at a particular place, and there only. 
 Byles, Bills, •194; see Q. B. Hill. Term, 
 1839 ; see Acceptance. 
 
 SPECIAL AGENT. An agent whose 
 authority is confined to a particular or an in- 
 dividual instance. It is a general rule that 
 he who is invested with a special authority 
 must act within the bounds of his authority, 
 and he cannot bind his principal beyond what 
 he is authorized to do ; 15 Johns. 44 ; 1 
 Wash. C. C. 174. See Agent. 
 
 SPECIAL ASSUMPSIT. An action of 
 assumpsit brought on a special contract, which 
 the plaintiff declares upon setting out its par- 
 ticular language or its legal effect. 
 
 It is distinguished from a general assumpsit, 
 where the plaintiff, instead of setting out the par- 
 ticular language or effect of the original contract, 
 
SPECIAL BAIL 
 
 664 SPECIAL NON EST FACTUM 
 
 declares as for a debt arising out of tlie execu- 
 tion of the contract, where that constitutes the 
 debt. 3 Bouvier, Inst. n. 3426. 
 
 SPECIAL BAIL. A person who be- 
 comes specially bound to answer for the ap- 
 pearance of another. 
 
 The recognizance or act by which such per- 
 son thus becomes bound. 
 
 SPXiCIAL BAILIFF. Same as bound 
 bailiff', q. v. 
 
 SFBCIAL BASTARD. One whose pa- 
 rents afterwards intermarry. 3'Bla. Com. 335. 
 
 SFBCIAL CASE. See Case stated. 
 
 SPECIAL CONSTABLE. One who has 
 been appointed a constable for a particular oc- 
 casion, as in the case of an actual tumult or a 
 riot, or for the purpose of serving a particular 
 process. 
 
 SPECIAL COUNT. As opposed to the 
 common counts, in pleading, a special count 
 is a statement of the actual facts of the par- 
 ticular case. 
 
 SPECIAL DAMAGES. The damages 
 recoverable for the actual injury incurred 
 through the peculiar circumstance of the in- 
 dividual case, above and beyond those pre- 
 sumed by law from the general nature of the 
 wrong. 
 
 These damages must be specially averred 
 in the declaration, or they cannot be re- 
 covered ; while damages implied by law are 
 recoverable without any such special averment. 
 Thus, in the case of an action for libel the law 
 presumes afl injury as necessarily involved in 
 the loss of reputation, and will award dam- 
 ages therefor without any distinct averment. 
 But if there was any peculiar loss suffered 
 in the individual case, as the plaintifi's mar- 
 riage prevented or the plaintiff's business di- 
 minished, etc., this must be especially averred. 
 See Damages. 
 
 SPECIAL DEMURRER. One which 
 excepts to the sufficiency of the pleadings on 
 the opposite side, and shows specifically the 
 nature of the objection and the particular 
 ground of the exception. 3 Bouvier, Inst, 
 n. 3022. See Demurrer. 
 
 SPECIAL DEPOSIT. A deposit made 
 of a particular thing with the depositary : it 
 is distinguished from an irregular deposit. 
 
 When a thing has been specially deposited 
 with a depositary, the title to it remains with 
 the depositor, and if it should be lost the loss 
 will fail upon him. When, on the contrary, 
 the deposit is irregular, as where money is de- 
 posited in a bank, the title to which is trans- 
 ferred to the bank, if it be lost, the loss will be 
 borne by the bank. This will result from the 
 same principle : the loss will fall in both in- 
 stances, on the owner of the thing, according 
 to the rule res periit domino. See ] Bouvier, 
 Inst. n. 1054. 
 
 SPECIAL ERRORS. Special pleas in 
 error are those which assign for error matters 
 in confession and avoidance, as a release of 
 errors, the act of limitations, and the like, to 
 
 which the plaintiff in error may reply or 
 demur. 
 
 SPECIAL FINDING, Where a jury 
 find specially a particular fact, presumably 
 material to the general question before them 
 but which does not involve the whole of that 
 question. Moz. & W. 
 
 SPECIAL IMPARLANCE. In Pleaa. 
 ing. An imparlance which contains the 
 clause, "saving to himself all advantages and 
 exceptions, as well to the writ as to the decla- 
 ration aforesaid." 2 Chitty, PI. 407. See 
 Imparlance. 
 
 SPECIAL INDORSEMENT. An in- 
 dorsement in /«H, which, besides the signa- 
 ture of the indorser, expresses in whose favor 
 the indorsement is made; thus, "Pay Mr. 
 CD., or order, A. B." See Byles, Bills, 
 *149. 
 
 In English practice, under the judicature act 
 of 1875, a special indorsement on a writ of sum- 
 mons is one which may he made in all cases 
 where a definite sum of money is claimed. When 
 the writ is thus indorsed and the defendant does 
 not appear within the time appointed, the plain- 
 tiff may then sign final judgment for any sum 
 not exceeding that indorsed on the writ. See 8 
 Sleph. Com. 495 ; Lush's Prac. 366 ; Moz. & W. 
 
 SPECIAL INJUNCTION. An injunc 
 tion obtained only on motion and petition, usu- 
 ally with notice to the other party. It is ap- 
 plied for sometimes on affidavit before answer, 
 and frequently upon merits disclosed in the 
 defendant's answer. 4 Bouvier, Inst. n. 3756. 
 See Injunction. 
 
 SPECIAL ISSUE. In Pleading. A plea 
 to the action which denies some particular ma- 
 terial allegation, which is in effect a denial of 
 the entire right of action. It differs from 
 the general issue, which traverses or denies 
 the whole declaration or indictment. Gould, 
 PI. c. 2, § 38. See General Issue ; Issue. 
 
 SPECIAL JURY. One selected in a 
 particular way by the parties. See JuBT. 
 
 SPECIAL LAWS. See Genebal 
 Lavsts. » 
 
 SPECIAL MATTER. Under a plea of 
 the general issue, a defendant may, instead of 
 pleading specially, give the plaintiff notice, 
 that on the trial he will give some special 
 matter, of such and such a nature, in evidence. 
 
 SPECIAL NON EST FACTUM. The 
 name of a plea by which the defendant says 
 that the deed which he has executed is not 
 his own or binding upon him, because of some 
 circumstance which shows that it was not in- 
 tended to be his deed, or because it was not 
 binding upon him for some lawful reason : as, 
 when the defendant delivered the deed to a 
 third person as an escrow to be delivered 
 upon a condition, and it has been delivered 
 without the performance of the condition, he 
 may plead non est factum, state the fact of 
 the conditional delivery, the non-perforniance 
 of the condition, and add, "and so it is not 
 his deed," or if the defendant be a feme 
 covert, she may plead non est factum, that 
 
SPECIAL OCCUPANT 
 
 655 
 
 SPECIFIC PERFORMANCE 
 
 she was a feme covert at the time the deed 
 was made, "and so it is not her deed." 
 Bacon, Abr. Pleas, etc. (H 8, 1 2) ; Gould, 
 PI. c. 6, pt. 1, § 64. See Issint. 
 
 SPECIAL OCCUPANT. When an es- 
 tate is granted to a man and his heirs during 
 the life of cestui que vie, and the grantee die 
 without alienation, and while the life for 
 which he held continues, the heir will suc- 
 ceed, and is called a special occupant. 2 Bla. 
 Com. 259. In the United States the statute 
 provisions of the different states vary consid- 
 erably upon this subject. In New York and 
 New Jersey, special occupancy is abolished. 
 Virginia, and probably Maryland, follow the 
 En^sh statutes. In Massachusetts and other 
 states, where the real and personal estates of 
 intestates are distributed in the same way and 
 manner, the question does not seem to be 
 material; 4 Kent, 27. 
 
 SPECIAL PARTNERSHIP. See 
 
 Partnership. 
 
 SPECIAL PLEA IN BAR. One which 
 advances new matter. It differs from the 
 general in this, that the latter denies some 
 material allegation, but never advances new 
 matter. Gould, PI. c. 2, § 38. 
 
 SPECIAL PLEADER. In English 
 
 Practice. A lawyer whose professional oc- 
 cupation is to give verbal or written opinions 
 upon statements submitted- to him, either in 
 writing or verbally, and to draw pleadings, 
 civil or criminal, and such practical proceed- 
 ings as may be out of the general course. 2 
 Chitty, Pr. 42. 
 
 Special pleaders are not necessarily at the bar; 
 but those that are not are requireed to take out 
 annual certificates under stat. 83 & 84 Yict. c. 
 97, 6S. 60, 63 ; Moz. & W. 
 
 SPECIAL PLEADING. A branch of 
 the science of pleading. 
 
 The allegation of special or new matter to 
 avoid the effect of the previous allegations of 
 the opposite party, as distinguished from a 
 direct denial of matter previously alleged on 
 the opposite side. Gould, PL c. I, § 18 ; 3 
 Wheat. 246 ; Comyns, Dig. Pleader (E 15) ; 
 Staph. PI. 162 n. (a), *lxi. 
 
 SPECIAL PROPERTY. That property 
 in a thing which gives a qualified or limited 
 right. See Peopekty. 
 
 SPECIAL REQUEST. A request act- 
 ually made, at a particular time and place ; 
 this term is used in contradistinction to a 
 general request, which need not state the 
 time when nor place where made. 3 Bouvier, 
 Inst. n. 2843. 
 
 SPECIAL RULE. See Rule of 
 
 CODRT. 
 
 SPECIAL SESSIONS. See Sessions 
 OF THE Peace. 
 SPECIAL TAIL. See Estate Tail. 
 
 SPECIAL TERM OR TERMS. See 
 
 Term. 
 
 SPECIAL TRAVERSE. See Tra- 
 verse. 
 
 SPECIAL TRUST. A special trust is 
 one where a trustee is interposed for the ex- 
 ecution of some purpose particularly pointed 
 out, and is not, as in the case of a simple 
 trust, a mere passive depositary of the estate, 
 but is required to exert himself actively in the 
 execution of the settler's intention: as, 
 where a conveyance is made to trustees upon 
 trust to reconvey, or to sell for the payment 
 of debts. 2 Bouvier, Inst. n. 1896. See 
 Trust. 
 
 SPECIAL VERDICT. In Practice. A 
 
 special verdict is one by which the facts of the 
 case are put on the record, and the law is 
 submitted to the judges. See Verdict ; 
 Bacon, Abr. Verdict (D). 
 
 SPECIALTY. A writing sealed and de- 
 livered, containing some agreement. 2 S. & 
 R. 503 ; Willes, 189 ; 1 P. Wms. 130. A 
 writing sealed and delivered, which is given 
 as a security for the payment of a debt, in 
 which such debt is particularly specified. 
 Bacon, Abr. Obligation (A). 
 
 Although in the body of the writing it is 
 not said that the parties have set their hands 
 and seals, yet if the instrument be really 
 sealed it is a specialty, and if it be not sealed 
 it is not a specialty, although the parties in 
 the body of the writing make mention of a 
 seal ; 2 S. & R. 504 ; 2 Co. 5 a ; Perkins, § 
 129. See Bond; Debt ; Obligation. 
 
 SPECIE. Metalic money issued by pub- 
 lic authority. See also In Specie. 
 
 This term is used in contradistinction to paper 
 money, which in some countries is emitted by 
 the government, and is a mere engagement which 
 represents specie. 
 
 In cases of salvage, specie on board is treated 
 like any other cargo; 1 Pet. Adm. 416; 44 L. T. 
 Kep. N. s. 254. See 15 Am. L. Eev. 416. 
 
 SPECIFIC LEGACY. A bequest of a 
 particular thing. 
 
 It follows that a specific legacy may be of 
 animals or inanimate things, provided they 
 are specified and separated from all other 
 things : a specific legacy may, therefore, be 
 of money in a bag. or of money marked and 
 so described : as, I give two eagles to A B, 
 on which are engraved the initials of my 
 name. A specific legacy may also be given 
 out of a general fund; Ambl. 310; 4 Ves. 
 565 ; 3 V. & B. 5. If the specific article 
 given be not found among the assets of the 
 testator, the legatee loses his legacy ; but, on 
 the other hand, if there be a deficiency of as- 
 sets, the specific legacy will not be liable to 
 abate with the general legacies ; 1 Vem. 31 ; 
 1 P. Wms. 422; 3 id. 365 ; 3 Bro. C. C. 
 160. See 1 Rop. Leg. 150 ; 1 Belt, Suppl. 
 Ves. 209, 231 ; 2 id. 112 ; Legacy ; Lega- 
 tee. 
 
 SPECIFIC PBRPORBffANCB. The 
 actual performance of a contract by the party 
 bound to fulfil it. As the exact fulfilment of 
 an agreement is not always practical, the 
 
SPECIFIC PERFORMANCE 666 SPECIFIC PERFORMANCE 
 
 phrase may mean, in a given case, not literal, 
 but substantial performance ; Waterm. Spec. 
 Perf. § 1. 
 
 Many contracts are entered into by parties 
 to fulfil certain things, and then the con- 
 tracting parties neglect or refuse to fulfil 
 their engagements. In such cases the party 
 
 grieved has generally a remedy at law, and 
 e may recover damages for the breach of the 
 contract ; but in many cases the recovery of 
 damages is an inadequate remedy, and the 
 party seeks to recover a specific performance 
 of the agreement. 
 
 It is a general rule that courts of equity 
 will entertain jurisdiction for a specific per- 
 formance of agreements, whenever courts of 
 law can give but an inadequate remedy ; and 
 it is immaterial whether the subject relate to 
 real or personal estate; 2 Story, Eq. § 717 ; 
 1 S. & S. 607 ; 1 P. Wms. 570 ; 1 Sch. & 
 L. 553 ; 1 Vern. 159. But the rule is con- 
 fined to cases where courts of law cannot 
 give an adequate remedy ; 1 Grant Cas. 83 ; 
 
 18 Ga. 473 ; 2 Story, Eq. Jur. § 718 ; and a 
 decree is to be granted or refused in the dis- 
 cretion of the court ; 38 N. H. 400 ; 2 Iowa, 
 126"; 5 id. 525; 9 Ohio St. 511 ; 8 Wise. 
 392; 5 Harr. Bel. 74; Hempst. 245; 2 
 Jones, Eq. 267; 6 Ind. 269. 
 
 As the doctrine of a specific performance 
 in equity arises from the occasional inadequacy 
 of the remedy at law upon a violated contract, 
 it follows that the contract must be such a one 
 as is binding at law ; 33 Ala. N. s. 449 ; and 
 it must be executory, certain in its terms, and 
 fair in all its parts. It must also be founded 
 upon a valuable consideration, and its per- 
 formance in specie must be practicable and 
 necessary ; and, if it be one of the contracts 
 which is embraced in the Statute of Frauds, 
 it must be evidenced in writing ; 2 Story, Eq. 
 Jur. § 751 ; Adams, Eq. 77; Busb. Eq. 80. 
 The Jirst requisite is that the contract must 
 be founded upon a valuable consideration ; 
 
 19 Ark. 51 ; either in the way of benefit be- 
 stowed or of disadvantage sustained by the 
 party in whose favor it is sought to be en- 
 forced; 1 Beasl. Ch. 498 ; and tnis considera- 
 tion must be proved even though the contract 
 be under seal; 12 Ind. 539; 14 La. An. 
 606; 17 Tex. 397. The consideration must 
 be strictly a valuable one, and not one merely 
 arising from a moral duty or afiection, as 
 towards a wife and children ; although it need 
 not necessarily be an adequate one ; Adams, 
 Eq. 78. See 6 Iowa, 279 ; 6 Mich. 364. 
 
 The second requisite is that the mutual en- 
 forcement of the contract must be practicable; 
 for if this cannot be judicially secured on 
 both sides, it ought not to be compelled 
 against either party. Among the cases which 
 the court deems impracticable is that of a 
 covenant by a husband to convey his wife's 
 land, because this cannot be efiectuated with- 
 out danger of infringing upon that freedom 
 of will which the policy of the law allows the 
 wife in the alienation of her real estate ; 2 
 
 Story, Eq. Jur. §§ 731-735 ; 63 Penn. S35 • 
 3 Bush, 694. ' 
 
 The third requisite is that the enforcement 
 in specie must be necessary ; that is, it must 
 be really important to the plaintifi; and not 
 oppressive to the defendant; 1 Beasl. Ch. 
 497. We have seen, for instance, that mere 
 inadequacy of consideration is not necessarily 
 a bar to a specific performance of a contract" 
 but if it be so great as to induce the suspicion 
 of fraud or imposition, the court of equity 
 will refuse its aid to the party seeking to en- 
 force, and leave him to his remedy at law 2 
 Jonei, Eq. 267. This is upon the ground 
 that the specific enforcement of the contract 
 would be oppressive to the defendant. The 
 court will equally withhold its aid where such 
 enforcement is not really important to the 
 plaintifT, as it will not be in any case where 
 the damages which he may recover at law 
 will answer his purpose as well as the posses- 
 sion of the thing which was contracted to be 
 conveyed to him ; Adams, Eq. 83 et seq. 
 As a general rule, a contract to convey real 
 estate will be specifically enforced ; unless the 
 title thereto is not marketable ; 15 Cent. L. 
 J. 8 ; while one for the transfer of personal 
 chattels will be ordinarily denied any relief 
 in equity; Waterm. Spec. Perf. § 16; 40 
 Miss. 119. But even in the case of personal 
 property, if the plaintifi' has not an adequate 
 remedy at law, equity will take jurisdiction ; 
 and more willingly in America than in Eng- 
 land; Story, Eq. Jur. § 724. Equity has de- 
 creed the performance of contract to assign 
 certain patent rights; 34 Conn. 325; and 
 when goods were sold and there were no other 
 similar goods in the market, a disposal of 
 them by the seller has been enjoined ; 33 L. 
 J. Q. B. 335. Equity will decree the specific 
 delivery of goods of a peculiar value ; as heir- 
 looms; 10 Ves. 139; an ancient silver altar; 
 3 P. Wms. 390 ; the celebrated Pusey horn; 
 1 Vern. 273 ; the decorations of a lodge of 
 Freemasons ; 6 Ves. 773 ; a faithful family 
 slave ;' 3 Murphey, 74. Contracts for the sale 
 of stock will not, usually, be enforced, but 
 the rule has been departed from; 23 Cal. 
 390; L. R. 3 Ch. 388 ; 1 S. & S. 174. 
 
 When the Statute of Frauds requires that 
 a contract shall be evidenced in wnting, that 
 will be a fourth requisite to the specific exe- 
 cution of it. In such case the contract must 
 be in writing and certain in its terms ; but it 
 will not matter in what form the instrument 
 may be, for it will be enforced even if it ap- 
 pear only in the consideration of a bond se- 
 cured by a penalty ; 6 Gray, 25 ; 2 Story, 
 Eq. Jur. § 751. 
 
 In applying the equity of specific perform- 
 ance to real estate, there are some modifica- 
 tions of legal rules, which at first sight appear 
 inconsistent with them and repugnant to the 
 maxim that equity follows the law. The 
 modifications here referred to are those of en- 
 forcing parol contracts relating to land, on the 
 ground that they have been atfeady performed 
 
SPECIFIC PERFORMANCE 
 
 657 
 
 SPEECH 
 
 in part ; of allowing time to make out a title 
 beyond the day which the contract specifies ; 
 and of allowing a conveyance with compensa- 
 tion for defects ; Adams, Eq. 85. 
 
 The principle upon which it is held that 
 part-performance of a contract will in equity 
 take a case out of the operation of the Statute 
 of Frauds, is that it would be a fraud upon 
 the opposite party if the agreement were not 
 carried into complete execution ; 11 Cal. 28 ; 
 30 Barb. 633 ; 24 Ga. 402 ; 28 Mo. 134 ; 40 
 Me. 94. The act which is alleged to be part- 
 performance must be done in pursuance of the 
 contract and with the assent of the defendant. 
 What will be a sufficient part-performance 
 must depend on circumstances. The taking 
 possession of the land and making improve- 
 ments thereon will answer; 10 Cal. 156; 8 
 Mich. 463 ; 6 Iowa, 279 ; 30 Vt. 516 ; 5 R. 
 I. 149 ; 33 N. H. 32 ; 4 Wise. 79 ; though 
 the payment of a part or even the whole of 
 the purchase-money will not; 14 Tex. 373; 
 22 ni. 643 ; 4 Kent, 451 ; 103 Mass. 404 ; 
 68 N. Y. 499. See, however, 1 Hafr. Del. 
 532; 26 Md. 37. If the purchaser have en- 
 tered and made improvements upon the land, 
 and the vendor protect himself from a specific 
 performance by taking advantage of the sta- 
 tute, the plaintifl" shall be entitled to a decree 
 for the value of his improvements ; 14 Tex. 
 331 ; 1 D. & B. 9. The doctrine of part-per- 
 formance is not recognized in some of the 
 states; 37 Mo. 388; 40 Me. 187; 8 Cush. 
 223; 13 Sm. & M. 93. 
 
 The doctrine of allowing time to make out 
 a title beyond the day which the contract 
 specifies, and which is embodied in the maxim 
 that time is not of the essence of a contract in 
 equity, has no doubt been generally adopted 
 in the United States ; 1 D. & B. Eq. 237 ; 3 
 Jones, Eq. 84, 240; 2 McLean, 495; 57111. 
 480. But to entitle the purchaser to a specific 
 performance he must show good faith and a 
 reasonable diligence ; 4 Ired. Eq. 386 ; 3 
 Jones, Eq. 321. If during the vendor's de- 
 lay there has been a material change of cir- 
 cumstances affecting the rights and interests 
 of the parties, equity will not relieve ; 15 
 Penn. 429. 
 
 The third equity, to wit, that of allowing 
 a conveyance with compensation for defects, 
 applies where a contract has been made for 
 the sale of an estate, which cannot be literally 
 performed in ioto, either by reason of an un- 
 <;xpeeted failure in the title to part of the es- 
 tate ; 34 Ala. n . a. 633 ; 1 Head. 251 ; 6 
 Wise. 127 ; of inaccuracy in the terms of the 
 description, or of diminution in value by a 
 liability to a charge upon it. In any such 
 case, the court of equity will enforce a speci- 
 fic performance, allowing a just compensation 
 for defects, whenever it can do so consistently 
 wth the principle of doing exact justice be- 
 tween the parties ; Adams, Eq. 89 et seq. 
 This doctrine has also been adopted in the 
 United States. See 2 Story, Eq. Jur. 794- 
 800; 1 Ired. Eq. 299 ; 1 Head, 251. 
 
 When a vendor files a bill he must show a 
 Vol. II.— 42 
 
 tender of the title and an offer to perform ; 46 
 111. 113 ; 39 Mich. 175 ; that is a tender of a 
 deed; 63 Ind. 213; but it has been held that 
 an offer 6f a deed in the bill is enough ; 63 
 N. Y. 801 ; 20 Iowa, 295. And a vendee 
 must show a tender of the purchase-money ; 
 67 Penn. 24 ; 21 Gratt. 29. And such ten- 
 der must not be delayed till circumstances 
 have changed ; 4 Brewst. 49. 
 
 A decree for specific performance will not 
 be made against a vendor whose wife refuses 
 to join in the conveyance; 75 Penn. 141. 
 
 A feme covert cannot maintain a bill for 
 specific performance ; 4 Brewst. 49. See, 
 generally. Fry, Waterman, on Specific Per- 
 formance. 
 
 SPECIPICATIO (Lat.). In Civil Law. 
 
 The process by which, from material either 
 of one kind or different kinds, either belong- 
 ing to the person using them or to another, a 
 new form or thing is created ; as, if from gold 
 or gold and silver a cup be made, or from 
 grapes wine. Calidnus, Lex. Whether the 
 property in the new article was in the owner 
 of the materials or in him who effected the 
 change was a matter of contest between the 
 two great sects of Roman lawyers. Stair, 
 Inst. p. 204, § 41 ; Mackeldey, Civ. Law, § 
 241. 
 
 SPECIFICATION. A particular and 
 detailed account of a thing. 
 
 For example, in order to obtain a patent for an 
 Invention, it is necessary to file a specification or 
 an instrument of writing, which must lay open 
 and disclose to the public every part of the pro- 
 cess by which the Invention can be made useful. 
 If the specification does not contain the whole 
 truth relative to the discovery, or contains more 
 than is requisite to produce the desired effect, 
 and the concealment or addition was made for 
 the purpose of deception, the patent would tie 
 void ; for if the specification were insuflScient on 
 account of its want of clearness, exactitude, or 
 good faith, it would be a fraud on society that 
 the patentee should obtain a monopoly without 
 
 giving up his invention ; 2 Kent, 300 ; 1 Bell, 
 om. 112 ; Perpigna, Pat. 67 ; Eenouard, Des 
 Brevets d'Inv. 253. See Patent. 
 
 In Military Law. The clear and particu- 
 lar description of the charges preferred against 
 a person accused of a military offence. Tytler, 
 Courts-Mar. 109. 
 
 SPECIMEN. A sample ; a part of some- 
 thing by which the other may be known. 
 
 The act of congress of July 8, 1870, section 38, 
 requires the inventor or discoverer of an inven- 
 tion or discovery to accompany his petition and 
 specification for a patent with specimens of in 
 gredients, and of the composition of matter, suf- 
 ficient in quantity for the purpose of experiment, 
 where the invention or discovery is of a com- 
 position of matter. 
 
 SPECULATION. The hope or desire of 
 making a profit by the purchase and re-sale 
 of a thing. Pardessus, Droit Com. n. 12. 
 The profit so made : as, he made a good 
 specumtion. 
 
 SPEECH. A formal discourse in public. 
 The liberty of speech is guaranteed to mem- 
 
SPELLING 
 
 658 
 
 SPRING 
 
 bers of the legislature, in debate, and to coun- 
 sel in court. 
 
 The reduction of a speech to writing and 
 its publication is a libel if the matter con- 
 tained in it is libellous ; and the repetition of 
 it upon occasions not warranted by law, when 
 the matter is slanderous, will be slander ; 
 and the character of the speaker will be no 
 protection to him from an action ; 1 Maule & 
 S. 273 ; 1 Esp. 226. See Debate ; Liberty 
 OF Speech. 
 
 SPELLING. The art of putting the pro- 
 per letters in words in their proper order. 
 
 It is a rule that bad spelling will not void 
 a contract when it appears with certainty 
 what is meant : for example, where a man 
 agreed to pay tAref^ pounds he was held bound 
 to pay thirty pounds ; and seutene was holden 
 to be seventeen; Cro. Jac. 607; 10 Co. 133 
 a; 2 RoUe, Abr. 147. Even in an indict- 
 ment undertood has been holden as under- 
 stood; 1 Chitty, Cr. Law. 
 
 A misspelling of a name in a declaration 
 will not be sufficient to defeat the plaintiff, 
 on the ground of variance between the writing 
 produced and the declaration, if such name 
 be idem sonans : as, Kay for Key ; 1 6 East, 
 110 ; 2 Stark. 29; Segraoe for Seagrave; 2 
 Stra, 889. See Idem Sonans ; Election. 
 
 SPENDTHRIFT. A person who by ex- 
 cessive drinking, gaming, idleness, or de- 
 bauchery of any kind, shall so spend, waste, 
 or lessen his estate as to expose himself or his 
 family to want or siiffering, or expose the 
 town to charge or expense for the support of 
 himself or family. Vt. Rev. Stat. c. 65, § 9. 
 Spendthrift son trusts are sometimes created 
 to protect a son against his own improvidence ; 
 7 Phila. 58 ; 47 Penn. 113. 
 
 SFERATE (Lat. spero, to hope). That 
 of which there is hope. 
 
 In the accounts of an executor and the in- 
 ventory of the personal assets, he should dis- 
 tinguish between those which are sperate and 
 those which are desperate : he will be prima 
 facie responsible for the former and dis- 
 charged for the latter ; 1 Chitty, Pr. 520 ; 2 
 Will. Exec. 644; Toller, Exec. 248. See 
 Desperate. 
 
 SPES RBCtJPERANDI (Lat. the hope 
 of recovery). A term applied to cases of 
 capture of an enemy's property as a booty or 
 prize, while it remains in a situation in which 
 it is liable to be recaptured. As between the 
 belligerent parties, the title to the property 
 taken as a prize passes the moment there is 
 no longer any hope of recovery ; 2 Burr. 683. 
 See Infra Prjssidia ; Jus Postliminii ; 
 Booty; Prize. 
 
 SPINSTER. An addition given, in legal 
 writings, to a woman who never was married. 
 Lovelace, Wills, 269. So called because she 
 was supposed to be occupied in spinning. 
 
 SPIRITUAL CORPORATIONS. See 
 
 Ecclesiastical Corporations. 
 
 SPIRITUAL LORDS. The archbishow 
 and bishops of the House of Peers. 2 Stephl 
 Com. 328. 
 
 SPLITTING A CAUSE OP ACTION. 
 
 The 'bringing an action for only a part of the 
 cause of action. This is not permitted either 
 at law or in equity. 4 Bouvier, Inst. n. 4167. 
 
 SPOLIATION. In English Ecclesiaati- 
 cal Law. The name of a suit sued out in 
 the spiritual court to recover for the fruits of 
 the church or for the church itself. Fitzh 
 N. B. 85. 
 
 A waste of church property by an ecclesias- 
 tical person. 8 Bla. Com. 90. 
 
 In Torts. Destruction of a thine by the 
 act of a stranger : as, the erasure or alteration 
 of a writing by the act of a stranger is called 
 spoliation. This has not the effect to destroy 
 its character or legal effect. 1 Greenl. Ev. 
 § 566. 
 
 In Admiralty Law. By spoliation is also 
 understood the total destruction of a thing; 
 as, the spoliation of papers by the captured 
 party is generally regarded as a proof of 
 guilt ; but in America it is open to explana- 
 tion, except in certain cases where there is a 
 vehement presumption of bad faith ; 2 Wheat. 
 227, 241 ; 1 Dods. Admr. 480, 486. See 
 Alteration. 
 
 SFONSALIA, STIPULATIO SFOH- 
 SALITIA (Lat.). A promise lawfully 
 made between persons capable of marrying 
 each other, that at some future time they wiD 
 marry. See Espousals ; Erksine, Inst. 1, 
 6, 3. 
 
 SFONSIO JUDICIALIS (Lat.) Ajudi- 
 cial wager. This corresponded in the Koman 
 law to our feigned issue. 
 
 SPONSIONS. In International Law. 
 Agreements or engagements made by certain 
 public officers, as generals or admirals, in 
 time of war, either without authority or by 
 exceeding the limits of authority under which 
 they purport to be made. 
 
 Before these conventions can have any bind- 
 ing authority on the state, they must he con- 
 firmed by express or tacit ratification. _ The 
 former is given in positive terms and m the 
 usual forms ; the latter is justly implied from 
 the fact of acting under the agreement as if 
 bound by it, and from any other circumstance 
 from which an assent may be fairly presumed ; 
 Wheaton, Int. Law, pt. 3, c. 2,§3; Grotius, 
 de Jur. BeL ac Pac. 1. 2, c. 15, § 16; 
 id. 1. 3, c. 22, §§ 1-8 ; Vattel, Law of Nat. 
 b. 2, c. 14, §§ 209-212 ; Wolff", Inst. § 1166. 
 
 SPONSOR. In Civil Law. He who 
 intervenes for another voluntarily and with- 
 out being requested. The engagement which 
 he enters into is only accessory to the P""^'" 
 pal. See Dig. 17. 1. 18 ; Nov. 4. 1 ; Ude 
 de Comm. art. 168, 159; Code Nap. 1236; 
 Wolff, Inst. § 1556. 
 
 SPOUSE BREACH. Adultery. Cowel. 
 
 SPRING. A fountain. . 
 
 A natural source of water, of a definite ano 
 
SPRING-BRANCH 
 
 659 
 
 STAKEHOLDER 
 
 well-marked extent ; 6 Ch. Div. 264 (C. A.)- 
 A natural chasm in which water has collected, 
 and from which it either is lost by percolation, 
 or rises in a defined channel ; 41 L. T. Rep. 
 N. S. 457. 
 
 The owner of the soil has the exclusive 
 right to use a spring arising on his grounds. 
 When another has an easement or right to 
 draw water from such a spring, acquired by 
 grant or prescription, if the spring fails the 
 easement ceases, but if it returns the right re- 
 vives. 
 
 The owner of land on which there is a 
 natural spring has a right to use it for do- 
 mestic and culinary purposes and for water- 
 ing his cattle, and he may make an aqueduct 
 to another part of his land and use all the 
 water required to keep the aqueduct in 
 order or to keep the water pure ; 15 
 Conn. 366. He may also use it for irriga- 
 tion, provided the volume be not materially 
 decreased ; Ang. Waterc. 34. See 1 Root, 
 535: 9 Conn. 291 ; 2 Watts, 327; 2 Hill, 
 So. C. 634 ; Coxe, N. J. 460 ; 2 D. & B. 
 50; 8 Mass. 106; 13 id. 420; 3 Pick. 269; 
 8 id. 136 ; 8 Me. 253. 
 
 The owner of the spring cannot lawfully 
 turn the current or give it a new direction. 
 He is bound to let it enter the inferior estate 
 on the same level it has been accustomed to, 
 and at the same place, for every man is en- 
 titled to a stream of water flowing through 
 his land without diminution or alteration ; 6 
 East, 206 ; 2 Conn. 584. See 3 Rawle, 84 ; 
 12 Wend. 330 ; 10 Conn. 213 ; 14 Vt. 239. 
 
 Where one conveyed a spring or well to be en- 
 joyed without interruption, and afterwards con- 
 veyed contiguous property to a railway company 
 whose works drained the water from the land 
 before it reached the spring, on an action for 
 breach of agreement : held, that the gi-antor had 
 only conveyed the flow of the water after it had 
 leached the spring, and therefore there was no 
 breach ; 41 L. T. N. S. 455 (C. A.) . See 15 L. 
 J. N. S. Ex. 315. Where the value of land was 
 enhanced by a spring, it was held ratable for 
 taxation at such improved value ; 1 M. &. S. 503. 
 See Coul. & F. Waters. 
 
 The owner of the superior inheritance, or 
 of the land on which there is a spring, has 
 no right to deprive the owner of the estate be- 
 low him ; 5 Pick. 175 ; 3 Harr. & J. 231 ; 12 
 Vt. 178 ; 13 Conn. 303 ; 4 111. 492 ; nor can 
 he detain the water nnreasonably ; 17 Johns. 
 306; 2 B. & C. 910. See 1 Dall. 211; 3 
 Rawle, 256 ; ) 3 N. H. 360 : Pooi. ; Stag- 
 NUM ; Back-Water ; Irrigation ; Mill ; 
 Rain Watee ; Subterranean Water ; 
 Water-Course. 
 
 SPRING-BRANCH. A branch of a 
 stream flowing from a spring. 12 Gratt. 196. 
 
 SPRINGING trSE. A use limited to 
 arise on a future event where no preceding 
 Jise is limited, and which does not take efl^ect 
 in derogation of any other interest than that 
 which results to the gi-antor or remains in him 
 in the mean time. Gilbert, Uses, Sugden ed. 
 153, n. ; 2 Crabb, R. P. 498. 
 
 A future use, either vested or contingent, 
 
 limited to arise without any preceding limita- 
 tion. Cornish, Uses, 91. 
 
 A use to take effect at a time specified (an 
 event certain) without any act upon the part 
 of the beneficiary, and not in derogation of 
 any preceding use. 
 
 It differs from a remainder in not requiring 
 any other particular estate to sustain it than the 
 use resulting to the one who creates it, inter- 
 mediate between its creation and the subsequent 
 taking effect of the springing use; Dy. 274; 
 PoUexf. 65 ; 1 Ed. Ch. 34; 4 Drur. & W. 27 ; 1 
 Me. 271. It differs from an executory devise in 
 that a devise is created by will, a use by deed ; 
 Fearne, Cont. Rem. 385, Butler's note ; Wilson, 
 Uses- It differs from a shifting use, though 
 often confounded therewith. See, generallv. 2 
 Washb. R. P. 281. 
 
 SFUIiZIIi (spoUatio). In Scotch Law. 
 
 The taking away movables without the con- 
 sent of the owner or order of law. Stair, 
 Inst. 96, § 16 ; Bell, Diet. 
 
 SPY. One on the watch to gain intelli- 
 gence of transactions meant to be kept secret. 
 
 The term is mostly applied to an enemy 
 who comes into the camp for the purpose of 
 ascertaining its situation in order to make an 
 attack upon it. The punishment for this crime 
 is death. See articles of War ; Vattel, Droit 
 des Gens, liv. 3, § 179 ; Halleck, Int. Law. 
 
 SQUATTER. One who settles on the 
 lands of others without any legal authority ; 
 this term is applied particularly to persons 
 who settle on the public land. 3 Mart. La. 
 N. s. 293. See Pre-emption Right. 
 
 STAB. To make a wound with a pointed 
 instrument. A stab differs from a cut or a 
 wound. Russ. & R. 356 ; Russ. Cr. 597 ; 
 Bacon, Abr. Maihem (B). 
 
 STAGNITM (Lat.). A pool. It is said to 
 consist of land and water ; and therefore b)' 
 the name of stagnum the water and the land 
 may be passed. Co. Litt. 5. 
 
 STAEEHOIiDBR. A third person 
 chosen by two or more persons to keep in 
 deposit property the right or possession of 
 which is contested between them, anil to be 
 delivered to the one who shall establish his 
 right to it. Thus, each of them is considererl 
 as depositing the whole thing. This distin- 
 guishes this contract from that which takes 
 place when two or more tenants in common 
 deposit a thing with a bailee. Domat, Lois 
 Civ. liv. 1, t. 7, s. 4 ; 1 Vern. 44, .,. 1. 
 
 A person having in his hands money or 
 other property claimed by several others is 
 considered in equity as a stakeholder. 1 
 Vern. 144. 
 
 The duties of a stakeholder are to deliver 
 the thing holden by him to the person en- 
 titled to it on demand. It is frequently 
 questionable who is entitled to it. In case 
 of an unlawful wager, although he may be 
 justified in delivering the thing to the winner, 
 by the express or implied consent of the 
 loser ; 8 Johns. 147 ; yet if before the event 
 has happened he has been required by either 
 party to give up the thing deposited with him 
 
STALE DEMAND 
 
 660 
 
 STAPLE 
 
 by such party, he is bound so to deliver it ; 3 
 Taunt. 377; 4 id. 492; or if, after the event 
 has happened, the losing party give notice to 
 the stakeholder not to pay the winner, a pay- 
 ment made to him afterwards will be made in 
 his own wrong, and the party who deposited 
 the money or thing mav recover it from the 
 Stakeholder ; 16 S. & R.'l47 ; 7 Term, 586 ; 8 
 id. 575 ; 2 Marsh. 542. See 3 Penn. R. 468; 5 
 Wend. 250 ; 1 Bail. 486, 503 ; Wagkks. 
 
 A deposit of stakes by one of the parties 
 in a match may be recovered back on demand 
 from the stakeholder, as upon a void con- 
 tract; 1 Q. B. D. 189; 5 App. Ca. 342; 
 overruling 5 C. B. 818. 
 
 STALE DEMAND. A claim which has 
 been for a long time undemanded : as, for ex- 
 ample, where there has been a delay of twelve 
 years unexplained. 3 Mas. C. C. 161. 
 
 STAIiLAGE (Sax. stal). The liberty or 
 right of pitching or erecting stalls in fairs or 
 markets, or the money paid for the same. 
 Blount ; Whart. Diet. ; 6 Q. B. 31. 
 
 STALIiARIUS (Lat.). luSazonLaw. 
 Theprcefectus stahuli, now master of the horse 
 (Sax. stahtahulwm). Blount. Sometimes one 
 who has a stall in a fair or market. Fl. lib. 
 4, c. 28, p. 13. 
 
 STAMP. An impression made by order 
 of the government, on paper, which must be 
 used in reducing certain contracts to writing, 
 for the purpose of raising a revenue. See 
 Stark. Ev. ; 1 Phill. Ev. 444. 
 
 A paper bearing an impression or device 
 authorized by law and adopted for attach- 
 ment to some subject of duty or excise. 
 
 The term in American law is used often in 
 distinction from stamped paper, wliich latter 
 meaning, as well as that of the device or impres- 
 sion itself, is included in the broader signification 
 of the word. 
 
 Stamps or stamped paper are prepared under 
 the direction of ofBcers of the government, and 
 sold at a price equal to the duty or excise to he 
 collected. The stamps are affixed and cancelled ; 
 and where stamped paper is used, one use obvi- 
 ously pievents a second use. The Internal Reve- 
 nue acts of the United States of 1863 and subse- 
 quent years required stamps to Tie affixed to a 
 great varietj' of subjects, under severe penalties 
 in the way of fines, and also under penalty of in- 
 validating written instruments and rendering 
 ^them incapable of being produced in evidence. 
 The only papers upon which stamps are now 
 required are bank-checks, drafts, orders, or 
 vouchers, for the payment of money, drawn on 
 any bank, etc. Internal revenue stamps are re- 
 quired upon tobacco and various other articles. 
 Maryland has enacted a stamp law. 
 Instruments not duly stamped are not void 
 or inadmissible in evidence, in the absence of 
 a fraudulent intent; 39 Vt. 412; 53 Penn. 
 176 ; 26 Wis. 163 ; s. C. 7 Am. Rep. 51 ; 47 N. 
 Y. 467; 7 Am. Rep. 468 ; see 82 Penn. 280 ; 
 in the absence of affirmative proof, a fraudu- 
 lent intent will not be presumed ; cases supra. 
 STAND. To abide by a thing ; to sub- 
 mit to a decision ; to comply with an agree- 
 ment ; to have validity : as, the judgment 
 must stand. 
 
 STANDARD. In -War. An ensign or 
 flag used in war. 
 
 In Measures. A weight or measure of 
 certain dimensions, to which all other weights 
 and measures must correspond : as, a stand- 
 ard bushel. Also, the quality of certain 
 metals, to which all others of the same 
 kind ought to be made to conform : as stand- 
 ard gold, standard silver. See Dollar- 
 Eagle. 
 
 STANDING ASIDE JURORS. In or- 
 der to mitigate the eflect of the statute 33 
 Edw. I. which forbade the challenging of 
 jurors by the crown exce^ing for cause 
 shown, a _ rule of practice gradually arose 
 of permitting the prosecution to direct jurors 
 to stand aside until the whole panel was ex- 
 hausted, without showing cause. The validity 
 of this practice has been repeatedly upheld in 
 England; 26 How. St. Tr. 1231. 
 
 In the United States this statute became a 
 part of the fundamental law after the revo- 
 lution ; Baldw. C. C. 78, 82 ; 8 Phila. 440 ; 
 22 Penn. 94 ; 7 Watts, 685 ; and notwith- 
 standing statutes of various states granting to 
 the prosecution a number of peremptory chal- 
 lenges, the custom of standing aside has been 
 preserved. This practice has been opposed 
 where the statutes allowing peremptory chal- 
 lenges are in force, but where the number 
 allowed is very small, it has heretofore been 
 allowed to continue. See Thomp. & Mer. 
 Juries, 147 ; 14 Cent. L. J. 402. 
 
 The practice applies in misdemeanors as 
 well as i^lonies, although there is a peremptory 
 right of challenge ; 39 Leg. Int. 384. 
 
 STANDING MUTE. See Mute; 
 Peine ; Fokte et Dukb. 
 
 STANNARY COURTS (stannary,— 
 from Lat. stannum, Cornish stean, tin, — a 
 tin mine). 
 
 In English Law. Courts of record, in 
 Devonshire and Cornwall, England, for the 
 administration of justice among the tinners 
 therein. They are of the same limited and 
 exclusive nature as those of the counties pala^ 
 tine. 
 
 They are held before a judge called the 
 vice- warden, in virtue of a privilege granted 
 to the workers in the tin-mines, or stannaries, 
 there, during the time of their working bona 
 fde in the stannaries, to sue and be sued only 
 in these their own courts, in all matters aris- 
 ing within the stannaries, except pleas of 
 land, life, and member, that they may not be 
 drawn from their business, which is highly 
 profitable to the public, by atttending theu- 
 law-suits in other courts. 
 
 By 9 & 10 Vict. c. 95, the plaintiff may 
 choose between the stannary court and the 
 county court of the district in which the cause 
 of action arises ; 8 Bla. Com. 80, 81. 
 
 STAPLE. In International Law. 
 The right of staple, as exercised by a people 
 upon foreign merchants, is defined to be that 
 they may not allow them to set their mer- 
 
STAR-CHAMBEK 
 
 661 
 
 STATE 
 
 chandises and wares, to sale but in a certain 
 place. 
 
 This practice is not in use in the United 
 States. 1 Chitty, Com. Law, 103 ; Co. 4th 
 Inst. 238; Bacon, Abr. Execution (B 1). 
 See Statute Staple. 
 
 STAR-CHAMBER. See CouKT of 
 Stab-Chamber. 
 
 STARE DECISIS (Lat.) . To abide by , 
 or adhere to, decided cases. Stare decisis et 
 non quieta movere. It is a general maxim 
 that when a point has been settled by deci- 
 sion, it forms a precedent which is not after- 
 wards to be departed from. The doctrine of 
 stare decisis is not always to be relied upon ; 
 for the courts find it necessary to overrule 
 cases which have been decided contrary to 
 principle. Many hundreds of such overruled 
 cases may be found in the American and Eng- 
 lish reports. It should require very control- 
 line considerations to induce any court to break 
 down a former decision, and lay again the 
 foundations of the law ; 7 How. (Miss.) 569. 
 And a court when asked to do so should con- 
 sider how far its action would affect transac- 
 tions entered into and acted upon, under the 
 law as it exists ; 11 Tex. 455. Where there 
 have been a series of decisions by the supreme 
 judicial tribunal of a state, the rule of stare 
 decisis may usually be regarded as impreg- 
 nable, except by legislative act ; 29 Ind. 
 470. Especially is this the case where the 
 law has become settled as a rule of property, 
 and titles have become vested on the strength 
 of it ; 44 Mo. 206 ; and even an isolated de- 
 cision will not be reversed when it has re- 
 mained undisputed for a long time, and 
 rights to land have been acquired under it ; 
 31 Cal. 402; 22 Cal. 110. It has been said 
 that the doctrine of stare decisis has greater 
 or less force according to the nature of the 
 question decided, those questions where the 
 decisions do not constitute a business rule, 
 e.g., as where personal liberty is involved, will 
 he met only by the general considerations 
 which favor certainty and stabilityin the law ; 
 but where a decision relates to the validity of 
 certain modes of transacting business, and a 
 change of decision must necessarily invalidate 
 everything done in the mode prescribed by the 
 former case, as in the manner of executing 
 deeds or wills, the maxim becomes impera- 
 tive, and no court is at liberty to change it ; 
 15 Wise. 691. The U. S. courts will follow 
 the decisions of those of the several states ; in 
 interpreting state laws ; but when the deci- 
 sions of. the state courts are unsettled and 
 conflicting the rule does not apply ; 1 Wall. 
 205; 5 Wall. 772. When titles to real estate 
 depend on any compact between states, the 
 rule of decision will not be drawn from either 
 of the states; 11 Pet. 1 ; but where any prin- 
 ciple of law is laid done by a state court re- 
 garding a sale of real property ; 6 Wall. 723 ; 
 the violation of a charter by a state corpora- 
 tion ; 7 How. 198 ; the payment of taxes ; 7 
 Wall. 71 ■ the United States courts will fol- 
 
 low it in analogous cases ; 7 How. 738. Ii 
 matters relating to the construction of treaties, 
 constitutional provisions, or laws of the Unitec 
 States, the authority of the federal courts ii 
 paramount, while e converso in the construc- 
 tion of state constitutions and state laws, th< 
 decisions of the state courts are final withii 
 their jurisdiction ; 23 Miss. 498 ; Wells 
 Res. Adj. & Stare Decisis, 583. See Cooley 
 Const. 57; Greenl. Overruled Cases ; 1 Kent 
 477 ; Livingston, Syst. of Pen. Law, 104 
 See Jenkins, Century, vi., for a list of cnriou 
 aphorisms on this subject ; Authokities 
 Precedents. 
 
 STARE IN JTTDICIO (Lat.). To ap 
 pear before a tribunal, either as plaintiff o 
 defendant. 
 
 STATE (Lat. stare, to place, establish) 
 A body politic, or society of men, united to 
 gether for the purpose of promoting thei; 
 mutual safety and advantage, by the joint ef 
 forts of their combined strength. Cooley 
 Const. Lim. 1. A self-sufficient body of per 
 sons united together in one community fo: 
 the defence of their rights and to do righ 
 and justice to foreigners. In this sense, 
 the state means the whole people unitef 
 into one body politic ; and the state, and thi 
 people of the state, are equivalent expres 
 sions. 2 Dall. 425 ; 3 id. 93 ; 2 Wilson*, Lect 
 120; 1 Story, Const. § 361. So, frequently 
 are state and nation; 7 Wall. 720. Sei 
 Morse, Citizenship. The positive or actua 
 organization of the legislative or judicia 
 powers : thus, the actual government of th( 
 state is designated by the name of the state 
 hence the expression, the state has passe( 
 such a law or prohibited such an act. Thi 
 section of territory occupied by a state ; as 
 the state of Pennsylvania. 
 
 One of the commonwealths which form thi 
 United States of America. 
 
 The constitution of the United State 
 makes the following provisions in relation ti 
 the states. Art. 1, s. 9, § 5. Notax^ordut; 
 shall be laid on articles exported from an; 
 state. No preference shall be given by_an; 
 regulation of commerce or revenue to thi 
 ports of one state over those of another ; no 
 shall vessels bound to or from one state bi 
 obliged to enter, clear, or pay duties ii 
 another. Art. 1, s. 10, § 1. No state shal 
 enter into any treaty, alliance, or confedera 
 tion ; grant letters of marque and reprisal 
 coin money ; emit bills of credit ; make anj 
 thing but gold and silver coin a tender in pay 
 ment of debts ; pass any bill of attainder, ex 
 post-facto law or law impairing the obligatioi 
 of contracts ; or grant any title of nobility 
 No state shall, without the consent of con 
 gress, lay any imposts or duties on importi 
 or exports, except what may be absolutely 
 necessary for executing its inspection laws 
 and the net produce of all duties and imposti 
 laid by any state on imports or exports shal 
 be for the use of the treasury of the Unitef 
 St;it(.'?, ;!:i(l all such laws shall be subject t( 
 
STATE 
 
 STATUTE 
 
 the revision and control of congress. No 
 state shall, without the consent of congress, 
 lay any duty on tonnage, keep troops or ships 
 of war in time of peace, enter into any agree- 
 ment or compact with another state, or with 
 a foreign powers or engage in war, unless 
 actually invaded or in such imminent danger 
 as will not admit of delay. Amendt. xiv. § 1. 
 No state shall make or enforce any law 
 which shall abridge the privileges or immuni- 
 ties of citizens of the United States ; nor 
 shall any state deprive any person of life, 
 liberty or property, without due process of 
 law, nor deny to any person within its juris- 
 diction the equal protection of the laws ; § 4. 
 Neither the United States nor any state shall 
 assume or pay any debt or obligation incurred 
 in aid of insurrection or rebellion against the 
 United States, or any claim for the loss or 
 emancipation of any slave ; but all such debts, 
 obligations and claims shall be held illegal and 
 void. Amendt. xv. § 1. The right of citi- 
 zens of the United States to vote shall not 
 be denied or abridged by the United States 
 or by any state, on account of race, color, or 
 previous condition of servitude. 
 
 The District of Columbia and the terri- 
 torial districts of the United States are not 
 states within the meaning of the 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 Cra. 445 ; 1 
 Wheat. 91 ; 16 C. L. J. 308 (U. S. D. C. 
 Oreg). 
 
 The several states composing the United 
 States are sovereign and independent in all 
 things not surrendered to the national govern- 
 ment by the constitution, and are considered, 
 on general principles, by each other as foreign 
 states : yet their mutual relations are rather 
 those of domestic independence than of for- 
 eign alienation ; 7 Cra. 481 ; 3 "Wheat. 324. 
 See, generally, Mr. Madison's report in the 
 legislature of Virginia, January, 1800 ; 1 
 Story, Const. § 208 ; 1 Kent, 189, note 6 ; 
 Curtis, Const. ; Sedgw. Const. Law ; Gro- 
 tius, b. 1, c. 1, s. 14 ; id. b. 3, c. 3, s. 2 ; 
 Burlamaqui, vol. 2, pt. 1, c. 4; s. 9 ; Vattel, 
 b. 1, c. 1 ; 1 TouUier, n. 202, note 1 ; Cicero, 
 de Respub. 1. 1, s. 25; Morse on Citizenship; 
 7 Wall. 721. As to whether states can be 
 compelled to pay their debts, see 12 Am. L. 
 Rev. 625; 15 id. 519; 7 So. L. Rev. n. s. 
 
 In Society. That quality which belongs 
 to a person in society, and which secures to 
 and imposes upon him different rights and 
 duties in consequence of the difference of 
 that quality. 
 
 Although all men come from the hands of na- 
 ture upon an equality, yet there are among 
 them marked differences. The distinctions of 
 the sexes, fathers and children, age and youth, 
 etc. , come from nature. 
 
 The civil or municipal laws of each people 
 have added to these natural qualities distinctions 
 which are purely civil and arbitrary, founded on 
 the manners of the people or in the will of the 
 legislature. Such are the differences which 
 these laws have established between citizens and 
 
 aliens, between magistrates and subjects, and 
 between freemen and slaves, and those which ex- 
 ist in some countries between nobles and plebe- 
 ians, which differences are either unknown or 
 contrary to natural law. 
 
 Although these latter distinctions are more 
 particularly subject to the civil or municipal law 
 because to it they owe their origin, it neverthe^ 
 less extends its authority over the natural quail- 
 ties, not to destroy or to weaken them, but to 
 confirm them and to render them more inviolable 
 by positive rules and by certain maxims. This 
 union of the civil or municipal and natural law 
 forms among men a third species of differencee, 
 which may be called mixed, because they partici- 
 pate of both, and derive their principles from 
 nature and the perfection of the law : for exam- 
 ple, infancy, or the privileges which belong to it, 
 have their foundation in natural law ; but the 
 age and the term of these prerogatives are de- 
 termined by the civil or municipal law. 
 
 Three sorts of different qualities which form 
 the state or condition of men may, then, be dis- 
 tinguished : those which are purely natural, 
 those purely civil, and those which are composed 
 of the natural and civil or municipal law. 
 
 See 3 Bla. Com. 396 ; 1 TouUier, n. 170. 
 
 In Practice. To make known specifically ; 
 to explain particularly : as, to state an account 
 or to show the different items in an account ; 
 to state the cause of action in a declatation. 
 
 STATEMENT. See Pabticclas 
 Statement. 
 STATING-FART OF A BILL. See 
 
 BlLI.. 
 
 STATION. In Civil Law. A place 
 where ships may ride in safety. Dig. 49. 12. 
 1. 13; 50. 15.59. 
 
 STATU LIBERI (Lat.). In Louisiana. 
 Slaves for a time, who had acquired the right 
 of being free at a time to come, or on a con- 
 dition which was not fulfilled, or in a certain 
 event which had not happened, but who in 
 the mean time remained in a state of slavery. 
 La. Civ. Code, art. 37. See 3 La. 176; 6 
 id. 571 ; 4 Mart. La. 102 ; 7 id. 351 ; 8 id. 
 219. This is substantially the definition of 
 the civil law. Hist, de la Jur. 1. 40 ; Dig. 
 40. 7. 1 ; Code, 7. 2. 13. 
 
 STATUS (Lat.). The condition of per- 
 sons. The movement of progressive societies 
 has been from status to contract ; Maine, Anc. 
 Law, 170. It also means estate, because it sig- 
 nifies the condition or circumstances in which 
 the owner stands with regard to his property. 
 
 STATUTE. A law established by the act 
 of the legislative power. An act of the legis- 
 lature. The written will of the legislature, 
 solemnly expressed according to the forms 
 necessary to constitute it the law of the state. 
 
 This word is used to designate the written law 
 in contradistinction to the unwritten law. See 
 Common Law. 
 
 Among the civilians, the term statute is gene- 
 rally applied to laws and regulations of every 
 sort ; every provision of law which ordains, per- 
 mits, or prohibits anything is designated a sta- 
 tute, without considering from what source ii 
 arises. Sometimes the word is used in contradis- 
 tinction from the Imperial Roman law, which, Dy 
 way of eminence, civilians call the common law. 
 
STATUTE 
 
 663 
 
 STATUTE 
 
 A negative statute is one expressed in nega- 
 tive terms, and so controls tne common law 
 that it has no force in opposition to the sta- 
 tute. Bacon, Abr. Statute (G). 
 
 An affirmative statute is one which is en- 
 acted in affirmative terms. 
 
 Such a statute does not necessarily take away 
 the common law ; Co. 2d Inst. 200. If, for ex- 
 ample, a statute without negative words declares 
 that when certain requisites shall have been com- 
 plied with, deeds shall have a certain effect as 
 evidence, this does not prevent their being used 
 in evidence, though the requisites have not been 
 complied with, in the same manner they might 
 have been before the statute was passed; 2 
 Caines, 169. Or a custom ; 6 CI. & P. 41. Nor 
 does such an affirmative statute repeal a pre- 
 cedent statute if the two can both be given ef- 
 fect: Dwarris, Stat. 474. The distinction be- 
 tween negative and affirmative statutes has been 
 considered inaccurate ; 13 Q. B. 33. 
 
 A declaratory statute is one which is passed 
 in order to put an end to a doubt as to what 
 is the common law or the meaning of another 
 statute, and which declares what it is and 
 everilas been. 
 
 Penal statutes are those which command 
 or prohibit a thing under a certain penalty. 
 Bacon, Abr. A statute affixing a penalty to 
 an act, though it does not in words prohibit 
 it, thereby makes it illegal; 14 Johns. 273 ; 
 1 Binn. 110 ; 37 E. L. & E. 475 ; 14 N, H. 
 294; 4 Iowa, 490; 7 Ind. 77. See, as to 
 the construction of penal statutes, 2 Cr. L. 
 Mag. Jan. 81. 
 
 ■ A perpetual statute is one for the continu- 
 ance of which there is no limited time, al- 
 though it be not expressly declared to be so. 
 
 If a statute which did not itself contain any 
 limitation is to be governed by another which is 
 temporary only, the former will also be tempo- 
 rary and dependent upon the existence of the 
 latter. Bacon, Abr. Statute (D) . 
 
 Private statutes or acts are those of which 
 the judges will not take notice without plead- 
 ing ; such as concern only a particular species 
 or person. 
 
 Private statutes may be rendered public by 
 being so declared by the legislature; 1 Bla. 
 Com. 83; 4 Co.. 76. And see 1 Kent, 459. Private 
 statutes will not bind strangers; though they 
 should contain any saving of their rights. A gen- 
 eral saving clause used to be inserted in all 
 private bills ; but it is settled that, even if such 
 saving clause be omitted, the act will bind 
 none but the parties. 
 
 Public statutes are those of which the courts 
 will take judicial notice without pleading or 
 proof. 
 
 They are either general or local, — ^that is, have 
 operation throughout the state at large, or within 
 a particular locality. It is not easy to say what 
 degree of limitation will render an act local. 
 Thus, it has been held that a public act relating 
 to one county only is not local within the mean- 
 ing of a constitutional provision which forbids 
 enactments of local bills embracing more than 
 one subject ; 5 N. T. 285 ; 2 Sandf. 355. 
 
 A remedial statute is one made to supply 
 such defects and abridge such superfluities in 
 
 the common law as may have been discovered 
 1 Bla. Com. 86. 
 
 These remedial statutes are themselves dividec 
 into enlarging statutes, by which the commoi 
 law is made more comprehensive and extende( 
 than it was before, and into restraining statutes 
 by which it is narrowed down to that which 1 
 just and proper. The term remedial statute is als( 
 applied'to those acts which give the party injurec 
 a remedy ; and in some cases such statutes ar 
 penal ; Esp. Pen. Act. 1. 
 
 A temporary statute is one which is limitec 
 in its duration at the time of its enactment. 
 
 It continues in force until the time of Its 11m 
 itation has expired, unless sooner repealed. I 
 statute which by reason of its nature has only i 
 single and temporary operation — e, g. an appro 
 priation bill — is also called a temporary statute. 
 
 The most ancient English statute extant ii 
 Magna Charta. Formerly the statutes enactec 
 after the beginning of the reign of Edw. III. wen 
 called Nova Statuta, or new statutes, to distln 
 guish them from the ancient statutes. 
 
 There is also a distinction in England be 
 tween general and special statutes. Th( 
 former affect the whole community, or laig( 
 and important sections, the interest of whicl 
 may be identical with those of the whoh 
 body. Special statutes relate to private in. 
 terests, and deal with the affairs of peisons 
 places, classes, etc., which are not of a public 
 character. Wilb. Stat^ 218. 
 
 As to mandatory and directory statutes, 
 see 2 Ky. L. Rep. 166. 
 
 It is a general rule that when the provisioi 
 of a statute is general, everything which i 
 necessary to make such provision effectual ii 
 supplied by the common law ; Oo. Litt. 235 
 Co. 2d Inst. 222 ; and when a power is givei 
 by statute, everything necessary for making ii 
 effectual is given by implication : quando Tea 
 aliquid concedit, concedere videtur et id sint 
 quo res ipsa esse non potest ; 12 Co. 130. 
 
 The provisions of a statute cannot be evadec 
 by any shift or contrivance ; 2 B. & C. 655 
 Whatever is prohibited by law to be done di- 
 rectly cannot legally be effected by an indi- 
 rect and circuitous contrivance ; 7 CI. & F. 540 
 
 As to the doctrine of the interpretation oi 
 statutes, see Construction ; 2 Cr. L.Mag. 1, 
 
 The mode of enacting laws in the Umtec 
 States is regulated by the constitution of the 
 Union and of the several states respectively, 
 The advantage of having a law officer, oi 
 board of officers, to revise bills and amend- 
 ments of bills during their progress throng! 
 the legislature, has been somewhat discussed. 
 It is urged that legislators often have no gene- 
 ral knowledge of law, are ignorant or careless 
 of the extent to which a proposed law may af- 
 fect previous statutes on the same or collateral 
 subjects ; amendments, too, are affixed with- 
 out carefully harmonizing them with the bill 
 amended ; and special provisions are resorted 
 to when a more general and simple remedy 
 should be applied. Reports of Eng. Stat. 
 Law Com. 1856, 1857; Street, Council of 
 Revision ; 6 Rep. Am. Bar Asso. 
 
 Much interesting discussion has arisen or 
 the question whether a statute which appears 
 
STATUTE 
 
 664 
 
 STATUTI 
 
 to be contrary to the laws of God and nature, 
 and to right reason, is void. Earlier dicta 
 in the aifirmative (see 8 Co. *118 a; 12 
 Mod. 687) are not now considered to be law ; 
 L. R. 6 C. P. 582. See Dwarris, Stat. 482. 
 
 In the United States, a statute which con- 
 travenes a provision of the constitution of the 
 state by whose legislature it was enacted, or 
 of the constitution of the United States, is 
 in so far void. See Constitutional. 
 The presumption, however, is that every 
 state statute the object and provision of which 
 are among the acknowledged powers of legis- 
 lation is valid and constitutional ; and such 
 presumption is not to be overcome unless the 
 contrary is clearly demonstrated ; 6 Cra. 87 ; 1 
 Cow. 564 ; 7 N. Y. 109. Where a part only 
 of a statute is unconstitutional, the rest is not 
 void if it can stand by itself; 1 Gray, 1. 
 
 By the common law, statutes took effect by 
 relation back to the first day of the session at 
 which they were enacted ; 4 Term, 660. The 
 injustice which this rule often worked led to 
 the statute of 33 Geo. III. c. 13, which de- 
 clared that, except when otherwise provided, 
 statutes should take effect from the day of ob- 
 taining the royal assent, unless otherwise or- 
 dered therein. This rule, however, does not 
 obviate the hardship of sometimes holding 
 men responsible under a law before its pro- 
 mulgation. By the Code Napol6on, a law 
 takes effect in each department of the empire 
 as many days after its promulgation in that 
 department as there are distances of twenty 
 leagues between the seat of government and 
 the place of promulgation. The general rule 
 in America is, that an act takes effect from 
 the time when the formalities of enactment 
 are actually complete, unless it is ordered 
 otherwise or there is some constitutional or 
 statutory rule on the subject ; Cooley, Const. 
 Lim. 190 ; 7 Wheat. 164. As to retroactive 
 statutes, see Ex Post Facto. 
 
 A statute is not to be deemed repealed 
 merely by the enactment of another statute on 
 the same subject. There must be a positive 
 repugnancy between the provisions of the 
 new law and the old, to work a repeal by im- 
 plication ; and even then the old law is re- 
 pealed only to the extent of such repugnancy ; 
 16 Pet. 342. This rule is supported by a 
 vast variety of cases. There is, however, a 
 qualification to be observed in the case of a 
 revised law. When the new statute is in ef- 
 fect a revision of the old, it may be treated 
 as superseding the former, though not ex- 
 pressly so declared; 7 Mass. 140; 12 id. 
 537, 545 ; 1 Pick. 43, 154; 9 id. 97 ; 31 Me. 
 34; 42 id. 53; 16 Barb. 15; 5 E. L. & E. 
 588 ; 37 N-. H. 295 ; 30 Vt. 344 ; 8 Tex. 62 ; 
 14 111. 334 ; 6 B. Monr. 146. But compare 
 9 Ind. 337; 10 id. 566. A mere change of 
 phraseology in the revision does not, however, 
 necessarily imply a change in the law; 21 
 Wend. 316 ; 7 Barb. 191 ; 33 N. H. 246 ; 6 
 Tex. 34. 
 
 Where a new statute expressly repeals the 
 former statute, and the new and the repeal 
 
 of the old are to take effect at the same time 
 a provision in the old statute which is eml 
 bodied in the new is deemed to have con- 
 tinued in force without suspension; 3 Wise 
 667; 15 111. 595. But it has been held that 
 where the new law does not go into effect 
 until a time subsequent to that at which the 
 repeal takes effect, such a provision is to be 
 deemed repealed meantime ; 12 La. An 593 
 But see 1 Pick. 33. 
 
 When one statute is repealed by another 
 the unqualified repeal of , the repealing statute 
 revives the original ; 21 Pick. 492 ; 1 Gray 
 163; 7W. & S. 263; 1 Ga. 32. This is 
 the common-law rule; but the contrary is 
 provided by statute in some of the United 
 States. Where a repealing act is unconstitu- 
 tional, the repeal clause is nevertheless opera, 
 tive; 11 Ind. 489; contra, 26 Ala. 165; 3 
 Gray, 476 ; 14 Mich. 276. 
 
 It is not to be presumed in the courts of 
 any state that statutes which have been enact- 
 ed in that state have also been enacted in 
 other states. The courts assume that the com- 
 mon law still prevails, unless it is shoftn to 
 have been modified. 22 Barb. 118 ; contra, 
 where the law of the forum has been changed; 
 70 Penn. 252. See Foreign Laws. 
 
 Some laws, such as charters, or other sta- 
 tutes granting franchises, if accepted or acted 
 upon by the persons concerned, acquire some 
 of the qualities of a contract between them 
 and the state ; 4 Wheat. 518 ; 6 Cra. 87 ; Ifr 
 How. 190, 218, 224, 511. 
 
 As to the titles of statutes, see Titles. 
 
 STATUTE MERCHANT. A security 
 entered before the mayor of London, or some 
 chief warden of a city, in pursuance of 13 
 Ed. I. Stat. 3, c. 1, whereby the lands of the 
 debtor are conveyed to the creditor till out of 
 the rents and profits of them his debt may be 
 satisfied. Cruise, Dig. t. 14, 8. 7 ; 2 Bla. 
 Com. 160. 
 
 STATUTE STAPLE. The statute of 
 the staple, 27 Ed. III. stat. 2, confined the 
 sale of all commodities to be exported to cer- 
 tain towns in England, called estaple or staple, 
 where foreigners might resort. It authorized 
 a security for money, commonly called statute 
 staple, to be taken by traders for the benefit 
 of commerce ; the mayor of the place is en- 
 titled' to take a recognizance of a debt in pro- 
 per form, which has the effect to convey the 
 lands of the debtor to the creditor till out 
 of the rents and profits of them he may 
 be satisfied. 2 Bla. Com. 160; Cruise, 
 Dig. tit. 14, s. 10; 2 KoUe, Abr. 446 ^ 
 Bacon, Abr. Execution (B 1); Co. 4th Inst. 
 238. 
 
 STATUTI (Lat). In Roman Law. 
 Those advocates whose names were inscribed 
 in the registers of matriculation, and formed 
 a part of the college of advocates. The num- 
 ber of advocates of this class was limited. 
 They were distinguished from the supernu- 
 meraries from the time of Constantine to Jus- 
 tinian. See Calvinus, Lex. 
 
STAY OF EXECUTION 
 
 665 
 
 STERB 
 
 STAT OP EXECUTION. In Prac- 
 tice. A term during which no execution 
 can issue on a judgment. 
 
 It is either conventional, when the parties 
 agree that no execution shall issue for a cer- 
 tain period, or it is granted by law, usually 
 on condition of entering bail or security for 
 the money. 
 
 An execution issued before the expiration 
 of the stay is irregular and will be set aside ; 
 and the plaintiff in such case may be liable to 
 an action for damages. What is said above 
 refers to civil cases. 
 
 In criminal cases, when a woman is capi- 
 tally convicted and she is proved to be en- 
 ceinte there shall be a stay of execution till 
 after her delivery. See Pregnancy. 
 
 A statute which authorizes stay of execu- 
 tion for an unreasonable or indefinite period, 
 on judgments rendered on pre-existing con- 
 tracts, is void ; 41 Penn. 441 ; 31 Mo. 205 ; 
 a law permitting ayear's stay upon judgments 
 where security is given has been held invalid ; 
 6 Heisk. 93 ; 8. c. 19 Am. Rep. 593. See 
 Cooley, Const. Lim. 357. 
 
 STATING- PROCEEDING'S. The sus- 
 pension of an action. 
 
 Proceedings are stayed absolutely or con- 
 ditionally. 
 
 They are peremptorily stayed when the 
 plaintiff is wholly incapacitated from suing : 
 as, for example, when the plaintiff is not the 
 holder, nor beneficially interested in a bill on 
 which he has brought his action ; 2 Cr. & 
 M. 416; 3 Chitty, Pr. 628; or when the 
 plaintiff admits in writing that he has no cause 
 of action; 3 Chitty, Pr. 370, 630; or when 
 an action is brought contrary to good faith ; 
 Tidd, Pr. 515, 529, 1134 ; 3 Chitty, Pr. 633. 
 
 Proceedings are sometimes stayed until 
 some order of the court shall have been com- 
 plied with ; as, when the plaintiff resides in 
 a foreign country or in another state, or is in- 
 solvent, and he has been ruled to give secu- 
 rity for costs, the proceedings are stayed until 
 such security shall be given ; B Chitty, Pr. 
 633, 635 ; or until the payment of costs in a 
 former action ; 1 Chitty, Bail, 195. 
 
 STEALING. This term imports, ex vi 
 termini, nearly the same as larceny ; but in 
 common parlance it does not always import a 
 felony ; as, for example, you stole an acre of 
 my land. 
 
 In slander cases, it seems that the term 
 stealing takes its complexion from the sub- 
 ject-matter to which it is applied, and will be 
 considered as intended of a felonious steal- 
 ing, if a felony could have been committed of 
 such subject-matter; 12 Johns. 239 ; 3 Binn. 
 546. 
 
 STEBLBOW GOODS. Instruments of 
 husbandry, cattle, corn, etc., delivered by a 
 landlord to his tenant on condition that the 
 like number of goods of like quality should 
 be returned on expiration of the lease. Bell, 
 Diet.; Stair, Inst. 285, § 81. 
 
 STELLIONATE. In Civil Law. A 
 
 name given generally to all species of frauds 
 committed in making contracts. 
 
 This word is said to be derived from the Latit 
 atellio, a kind of lizard remarkable for its can 
 ning and the change of its color, because those 
 guilty of frauds used every art and cunning tf 
 conceal them. But more particularly it was tht 
 crime of a person who fraudulently assigned 
 sold, or engaged the thing which h^ had befon 
 assigned, sold, or engaged to another, unknowi 
 to the person with whom he was dealing. Dig 
 47. 20. 3 ; Code 9. 34. 1 ; Merlin, Expert. ; La 
 Civ. Code, art. 3069 ; 1 Brown, Civ. Law, 426. 
 
 STENOGRAPHER. One whose busi 
 ness it is to write in short-hand, by usinj 
 abbreviations or characters for whole words. 
 
 The depositions of witnesses taken in short 
 hand, and afterwards reduced to long-hand 
 will be suppressed, if not read to and signei 
 by the witness after they are written out 
 though the witness's subsequent attendanct 
 for the purpose could not be procured ; S 
 Fed. Rep. 754; but see contra, 79 111 
 576, where it is held that the transcript ol 
 evidence taken in short-hand is admissible, 
 where the stenographer testifies that he wrote 
 up the testimony, and that the transcript ii 
 correct; that the witnesses were sworn anc 
 testified as therein stated. See also 43 Mich, 
 257. Where it is sought to impeach a wit 
 ness's testimony by proving his testimony ai 
 a former trial, the stenographer is not the onlj 
 witness who may be called, but any one whc 
 heard the testimony may be ; 65 Me. 466. 
 
 In Pennsylvania, where a stenographer ii 
 appointed under the provisions of an act o; 
 legislature authorizing the appointment o 
 stenographers in the several courts of the 
 commonwealth, his note of a bill of excep- 
 tions to the admission or rejection of evidence 
 is sufficient; and it is not essential that the 
 bill should be actually sealed by the judge 
 88 Penn. 217. 
 
 The charges of a stenographer are not tax 
 able for costs in a suit in equity; 7 Fed. Rep 
 42 ; but the agreement ol the parties mai 
 make them taxable costs, though not so bj 
 statute; 1 Bingh. 345. See 10 Wash. L 
 Rep. 7; 61 111. 271 ; 44 Mich. 438- 
 
 STEP-DATJGHTER. The daughter o 
 one's wife by a former husband, or of one'i 
 husband by a former wife. 
 
 STEP-FATHER. The husband of one'i 
 mother by virtue of a marriage subsequent te 
 that of which the person spoken of is the 
 offspring. 
 
 STEP-MOTHER. The wife of one'i 
 father by virtue of a marriage subseement te 
 that of which the person spoken of is the 
 offspring. 
 
 STEP-SON. The son of one's wife by i 
 former husband, or of one's husband by ! 
 former wife. 
 
 STERE. A French measure of solidity 
 used in measuring wood. It is a cubic metre 
 See Measure. 
 
STERILITY 
 
 666 
 
 STOCK 
 
 STERILZTT. Barrenness ; incapacity 
 to produce a child. It is curable and incura- 
 ble : when of the latter kind at the time of 
 the marriage, and arising from impotency, it 
 is a good cause for dissolving a marriage. 1 
 Foderfe, M6d. L6g. § 254. See Impotency. 
 
 STERLING. Current money of Great 
 Britaiu, but anciently a small coin worth 
 about one penny, and so called, as some sup- 
 pose, because it was stamped with the figure 
 of a small star, or, as others suppose, because 
 it was first stamped in England in the reign 
 of king John by merchants from Germany 
 called Esterlings. Pounds sterling originally 
 signified so many pounds in weight of these 
 coins. Thus, we find in Matthew Paris, A. d. 
 1242, the expression Accepit a rege pro sti- 
 pendio tredecim, libras esterlingorum. The 
 secondary or derived sense is a certain value 
 in current money, whether in coins or other 
 currency. Lowndes, 14 ; Watts, Gloss. Ster- 
 ling. 
 
 STET PROCESSUS (Lat.). In Prac- 
 tice. An order made, upon proper cause 
 shown, that the process remain stationary. 
 As, where a defendant having become insol- 
 vent would, by moving judgment in the case 
 of nonsuit, compel a plaintiff to proceed, .the 
 court will, on an affidavit of the fact of in- 
 solvency, award a stet processus. See 7 
 Taunt. 180 ; 1 Chitty, Bail, 738 ; 10 Wentw. 
 PL 43. 
 
 STEVEDORE. A person employed in 
 loading and unloading vessels. He has no 
 maritime lien on the ship for wages ; Dunlap, 
 Adm. Pract. 98. 
 
 STEWARD OF ALZ> EN6I.AITD. 
 
 In Old English Iia'Vtr. An officer who was 
 invested with various powers ; among others, 
 to preside on the trial of peers. 
 
 STEWS. Places formerly permitted in 
 England to women of professed lewdness, 
 who for hire would prostitute their bodies to 
 all comers. 
 
 These places were so called because the disso- 
 lute persons who visited them prepared them- 
 selves by bathing, — the word stews being derived 
 from the old French estuves, stove, or hot hath. 
 Co. 3d Inst. 205. 
 
 STILLICIDiaM (Lat.). In Civil Law. 
 
 The rain-water that falls from the roof or 
 eaves of a house by scattered drops. When 
 it is gathered into a spout, it ia called Jlumen. 
 Without the constitution of one or other of 
 these servitudes, no proprietor can build so 
 as to throw the rain that falls from his house 
 directly on his neighbor's grounds ; for it is 
 a restriction upon all property, nemo potest 
 immittere in alienum ; and he who in build- 
 ing breaks through that restraint truly 
 builds on another man's property ; because 
 to whomsoever the area belongs, to him also 
 belongs whatever is above it ; cujus est solum, 
 ejus est usque ad ccelum. 3 Burge, Confl. of 
 Laws, 405. See Servitus ; Inst. 3. 2. 1 ; 
 Dig. 8. 2. 2. 
 
 STINT. The proportionable part of a 
 man's cattle which he may keep upon the 
 common. The general rule is that the com- 
 moner shall not turn more cattle upon the 
 common than are sufficient to manure and 
 stock the land to which his right of common 
 is annexed. There may be such a thing as 
 common without stint or number ; but this is 
 seldom granted, and a grantee cannot grant 
 it over. 3 Bla. Com. 289 ; 1 Ld. Eavm 
 407. ' 
 
 STIPES. Stock; source of descent or 
 title. Ainsworth, Diet. ; 2 Bla. Com. 209. 
 
 STIPULATIO (Lat.). In Roman Law. 
 A contract made in the following manner: 
 viz., the person to whom the promise was to 
 be made proposed a, question to him from 
 whom it was to proceed, fully expressing the 
 nature and extent of the engagement ; and, 
 the question so proposed being answered in 
 the affirmative, the obhgation was complete. 
 
 It was essentially necessary tliat both par- 
 ties should speak (so that a dumb man could 
 not enter into a stipulation), that the person 
 making the promise should answer conform- 
 ably to the specific question proposed with- 
 out any material interval of time, and with 
 the intention of contracting an obligation. No 
 consideration was required. 
 
 STIPULATION. A material article in 
 an agreement. 
 
 The term appears to have derived its meaning 
 from the use of stipulatio above given ; though 
 it is applied more correctly and more conform- 
 ably to its original meaning to denote the insist- 
 ing upon and requiring any particular engage- 
 ment. 2 Pothler, Obi., Evans ed. 19. 
 
 In Admiialty Piactice. A recognizance 
 of certain persons (called in the old law Jidt 
 jussors) in the nature of bail for the appear- 
 ance of a defendant. 3 Bla. Com. 108. 
 
 These stipulations are of three sortB : namely, 
 judication solvi, by which the party is absolutely 
 bound to pay such sum as may be adjudged by 
 the court; dejudido siati, by which he is bound 
 to appear from time to time during the pendency 
 of the suit, and to abide the sentence ; de ratio, 
 or de rata, by which he engages to ratify the acts 
 of his proctor : this stipulation is not usual in 
 the admiralty courts of the United States. 
 
 The securities are taken in the following man- 
 ner : namely, cautio fide jussoria, hy sureties ; 
 pignoratitia, by deposit ; juratoria, by oath : this 
 security is given when the party is too poor to 
 find sureties, at the discretion of the court \nuda ' 
 promissoria, by bare promise: this security is 
 unknown in the admiralty courts of the United 
 States. Hall, Adm. Pr. 12; Dunl. Adm. Pr. 
 150. See 17 Am. Jur. 51. 
 
 STIRPES (Lat.). Descents. The root- 
 stem, or stock of a free. Figuratively, it sig- 
 nifies in law that person from whom a family 
 is descended, and also the kindred or family. 
 2 Bla. Com. 
 
 STOCK. In Mercantile Law. The 
 capital of a merchant, tradesman, or other 
 person, including his merchandise, money, and 
 credits. The goods and wares he has for 
 sale and traffic. 
 
STOCK 
 
 667 
 
 STOCK 
 
 In Corporation Law. A right to partake, 
 act'ording to the amount of the party's sub- 
 scription, of the surplus profits obtained from 
 the use and disposal of the capital stock of the 
 company. Ang. & A. Corp. § 557. 
 
 The capital stock of a corporation is that 
 money or property which is put into a fund 
 by those who, by subscription therefore be- 
 come members of the corporate body. Per 
 Folger, J. in 75 N. Y. 211. The phrase 
 capital stock has been objected to, as the two 
 words have separate meanings, capital being 
 the sum subscribed and paid into the com- 
 pany, and stock being the thing which the 
 subscriber receives for what he pays in ; Dos 
 Passes, Stock Brokers, 579; see 23 N. Y. 
 192. The interest which each person has in 
 the corporation is termed a share, which is the 
 right to participate in the profits of the cor- 
 poration, and, upon its dissolution, in the di- 
 vision of its assets. See 75 N. Y. 211. 
 "Capital stock" has been held to mean the 
 amount contributed by the shareholders, and 
 not the property of the company ; 23 N. J. 
 L. 195. 
 
 The number of shares depends upon the 
 statutory regulations, or in their absence the 
 agreement of the parties forming the corpora- 
 tion ; 45 Me. 524. Shares may be arranged 
 in classes, one class being preferred to an- 
 other in the distribution of profits ; 78 N. Y. 
 159. . See infra. Voting may be restricted 
 to a certain class. 
 
 The ownership of shares is usually attested 
 by a certificate issued under the corporate 
 seal ; and when a new transfer is effected, 
 such certificate is surrendered and cancelled, 
 and a new one is issued to the transferee. 
 But a person may be the owner of shares in 
 a corporation without holding such certificate ; 
 102 Mass. 261 ; and, strictly speaking, a com- 
 pany need not issue any certificates or muni- 
 ments of title, if not required to do so by law 
 or its charter; 24 Me. 256. The presence 
 • of a party's name on the stock books of the 
 company is evidence of his ownership of 
 shares ; 73 Penn. 59. The possession of a 
 corporate certificate of stock, duly issued, is 
 a continuing affirmation of ownership of the 
 stock by the person named therein ; 1 1 Wall. 
 369 ; which generally creates an estoppel 
 against the company in favor of the holder ; 
 57 N. Y. 616 ; though in England it is said 
 to be merely a solemn affirmation that the 
 specified amount of stock stands on the stock 
 books in the name of the person specified in 
 the certificate ; L. E. 7 H. L. 496. 
 
 The stock of a national bank is said to be a 
 species of chose in action, or an equitable in- 
 terest which the shareholder possesses, and 
 which he can enforce against the corporation. 
 See 53 N. Y. 161, 237. "If a share in a 
 bank is not a chose in action, it is in the nature 
 of a chose in action, and is personal pro- 
 perty;" per Shaw, C. J., in 12 Mete. 421. 
 Shares are not, strictly speaking, chattels ; 
 they bear a greater resemblance to choses in 
 action ; or, in other words, they are merely | 
 
 evidence of property ; Ang. & A. Corp. § 
 560. They are now universally considered 
 to be personal property ; Ang. & A. Corp. 
 § 557. They are not a debt ; Dos Passos, 
 Stock Brokers, 590. In Louisiana, stock is 
 property and not a credit ; 10 Fed. Eep. 
 330. 
 
 Shares of stock are non-negotiable instru- 
 ments, but through the doctrine of estoppel, 
 stock certificates, with a power to transfer 
 them, can be dealt in with the same immu- 
 nity as bills and notes ; Dos Passos, Stock 
 Brokers, 596 ; and the same writer is of opi- 
 nion that the time has come for the court to 
 receive evidence of the general usage of the 
 business world, so as to raise stock certificates 
 to the dignity of negotiable instruments ; id. 
 597; but see 2 W. N". C. (Pa.) 322, where evi- 
 dence of such a usage was rejected ; see, 
 also, 38 Penn^ 98. Professor Ames says (2 
 Bills & Notes, 784) : " Whether the custom 
 of merchants will ever lead the courts to give 
 those instruments (certificates of stock) the 
 quality of negotiability may be an open ques- 
 tion ; but that they have not done so is clear." 
 See 28 N. Y. 600 ; 86 Penn. 83 ; 14 Am. L. 
 Reg. N. s. 163, n. It has been said, however, 
 that a certificate of stock accompanied by an 
 assignment and a power of attorney in blank 
 has a species of negotiability well recognized 
 in commercial transactions and judicial deci- 
 sions ; id. (C. C. U. S., per Shipley, Circ. J.) 
 And in 11 Wall. 369, the court said that cer- 
 tificates, ' ' although neither in form or char- 
 acter negotiable paper, approximate it as 
 nearly as practicable." 
 
 It is now settled in England that shares in 
 a joint-stock company are not goods, wares 
 and merchandise within the Statute of Frauds; 
 11 A. & E. 205 ; it has been otherwise de- 
 cided in Massachusetts ; 9 Pick. 9. See, also, 
 128 Mass. 388. 
 
 Transfer. A certificate of stock is trans- 
 ferable by a blank indorsement which may 
 be filled up by the transferee, and by writing 
 an assignment and power of attorney, usually 
 under seal, over the signature indorsed ; Ang, 
 & A. Corp. § 564 ; 34 N. Y. 30 ; 50 Penn. 
 67. A transfer in this mode is deemed suffi- 
 cient in some jurisdictions to pass the legal 
 title to the stock subject to the claims of the 
 company upon the registered stockholders ; 2 
 Ames, B. & N. 784 ; 76 N. Y. 365 ; 10 Ak. 
 82 ; in other cases such a transfer has been 
 held to give the holder merely an equitable 
 interest; 3 How. 483; 5 Biss. 181. Prof. 
 Ames is of opinion that the true view is that 
 such a transfer does not pass the legal title, 
 but that it passes the equitable interest, 
 coupled with an irrevocable power of attorney 
 to acquire the legal title; 2 Ames, B. & N. 
 784. This irrevocable power may, in some 
 cases, by the doctrine of estoppel be acquired 
 by the delivery of the certificate from one 
 who has no such power himself; 48 Cal. 
 99 ; 14 Nev. 362 ; 86 Penn. 80 ; 46 N. Y. 
 325; 10 Reporter, 125. In England the 
 courts refuse to sanction the transfer of shares 
 
STOCK 
 
 668 
 
 STOCK 
 
 by deed executed in blank ; 4 De G. & J. 
 659. 
 
 In case of the sale of the stock this power 
 of attorney becomes irrevocable ; 14 Md. 
 299 ; but if such a power of attorney is forged 
 or is made by a person not competent to make 
 it, the corporation is liable for allowing the 
 transfer ; 14 Md. 299 ; see 86 Penn. 80 ; 
 123 Mass. 110. A company may refuse to 
 allow a transfer until satisfied of the party's 
 right to make it ; L. R. 9-Eq. 181 ; 52 Penn. 
 232; 6 S. C. 379. 
 
 A transferee of stock in a company does 
 not acquire a right thereto by estoppel, as be- 
 tween himself and the company, by the mere 
 fact that the company allows the registration 
 of the transfer and the issue of the certificate. 
 The company is under no duty as to him, to 
 make any inquiry of the transferrer before is- 
 suing the certificate ; 20 Am^L. Keg. n. s. 
 159 (Engl. Ct. of App.). He takes his title 
 from the vendor, not from the company. But 
 when a company has issued a new certificate 
 upon a forged transfer, which a, bona Jide pur- 
 chaser subsequently buys, the company is liable 
 to the purchaser. So is the company liable 
 where the purchaser of stock buys directly 
 from the corporation stock which is fraudu- 
 lently issued by its authorized officers. 
 
 See 20 Am. L. Keg. n. s. 168. 
 
 Dividends. Where certificates of stock 
 were bequeathed, the income to be paid to a 
 life-tenint, with remainder to his children, 
 etc. , a dividend in certificates of indebtedness 
 in addition to a cash dividend was consid- 
 ered income ; 14 C. L. J. 214 (S. C. of Ga.). 
 Where a company increased its capital by 
 offering its shareholders the option to subscribe 
 new stock at par, and the executors of an es- 
 tate holding some of the stock in trust for one 
 for life with remainder over, sold this option, 
 and it appeared that a slight depreciation 
 followed the issue of the new stock, it was 
 held that the sum realized, though more than 
 enough to make up this depreciation, was 
 capital and not income ; 14 C. L. J. 253 (S. 
 C. of Pa.). Where a gas company sold a 
 part of its property and divided the proceeds 
 by way of a dividend among the stockholders, 
 this was held capital and not income as be- 
 tween a life-tenant and remainder-man of 
 stock held in trust; 14 C. L. J. 273 (S. C. 
 of Pa.). For the earlier cases, see Divi- 
 dends. 
 
 Preferred stock entitles the holder to a 
 priority in the dividends or earnings. A late 
 writer (Dos Passos, Stock Brokers) considers 
 the following points as settled in reference to 
 this kind of shares. (1) Generally a corpora- 
 tion has no power to issue preferred snares 
 unless the power is given it by the charter or 
 general law, and even when preferred shares 
 are authorized to be issued in the first in- 
 stance, yet, if the company is organized upon 
 the basis of common stock, preferred stock 
 cannot be issued afterwards without the con- 
 sent of the common stockholders. See 78 N. 
 Y. 159 ; 2 Dr. & Sm. 614. (2) The latter 
 
 may be estopped from questioning the issu- 
 ance and validity. See id.; SI Mich. 76. 
 (3) The holders of preferred stock may upon 
 the making of net earnings compel the cor- 
 poration to account for and pay over such 
 earnings. See 84 N. Y. I57'. (4) The 
 form of preferred stock in some cases entitles 
 the holder to have the arrears of one year 
 made up from the net earnings of another 
 See 84 N. Y. 157 ; 31 Mich. 76 ; 8 E. L 
 359. (5) Arrears of net earnings due the 
 holders of such stock, unlike declared divi- 
 dends, pass to the transferee on the ordinary 
 transfer of shares. See 24 Hun, 360. (6) 
 Notwithstanding the existence of preferred 
 stock, a corporation has the right subsequently 
 to create bonds and mortgages, although the 
 effect of the creation of such encumbrances 
 will be to diminish the profits accruing to the 
 preferred stock. See 22 Wall. 137 ; 45 N. 
 Y. 468 ; 19 Md. 177. There seems to be a 
 doubt as to the extent of discretion of the di- 
 rectors in regard to dividends and as to the 
 meaning of " net earnings" and " net profits," 
 as generally used in preference to certificates. 
 See 99 U. S. 402. 
 
 Legislative power to issue preferred stock 
 may be granted subsequently to the organiza- 
 tion of the corporation ; 10 Bush, 69; 35 Vt. 
 536. Its issue is valid if agreed to by all the 
 stockholders; 1 Hun, 655. It has been held 
 that where the charter number of shares of 
 common stock were not issued, the residue 
 could be made up of preferred shares ; 43 Ga. 
 13 ; but see 2 Dr. & ^m. 614. 
 
 Preferred stockholders are entitled to pref- 
 erence only out of actual net profits; 81 
 Mich. 76 ; 8 R. I. 310. As to capital they 
 stand in the same position as common stock- 
 holders ; L. R. 6 E(j. 610 ; 6 Ch. Div. 611 ; 
 unless a preference in the division of capital 
 has been created ; L. R. 20 Eq. 59. See 33 
 N.J. Eq. 181, where this was done by statute. 
 Any agreement to pay dividends out of capi- 
 tal would be void ; 63 Penn. 126. 
 
 The subject is fully treated by Mr. Law 
 son in 20 Am.- L. Reg. n. s. 633. 
 
 As to deferred stock, see 39 Leg. Int. 98 ; 
 (S. C. of Pa.). 
 
 See, generally, Lewis, Stocks; Biddle, 
 Stock Brokers ; Thomps. Liab. of Stockh. 
 
 English Law. In reference to the in- 
 vestment of money, the term "stock" im- 
 plies those sums of money contributed tow- 
 ards raising a fund whereby certain objects, 
 as of trade and commerce, may be effected. 
 It is also employed to denote the moneys ad- 
 vanced to government, which constitute a 
 part of the national debt, whereupon a cer- 
 tain amount of interest is payable. Since 
 the introduction of the system of borrowing 
 upon interminable annuities, the meaning of 
 the word "stock" has become gradually 
 changed ; and, instead of signifying the se- 
 curity upon which loans are advanced, it haS 
 for a long time signified the principal of the 
 loans themselves. In this latter sense we 
 speak of the sale, purchase, and transfer of 
 
STOCK-BROKER 
 
 669 
 
 STOCKHOLDERS 
 
 stock; Moz. & W. See Cavanagh, Money 
 Securities. 
 
 Descents. A metaphorical expression 
 which designates in the genealogy of a family 
 the person from whom others are descended : 
 those persons who have so descended are 
 called branches. See 1 Roper, Leg. 103 ; 2 
 Belt, Suppl. Ves. 307 ; Branch ; Descent; 
 Line; Stikpes. 
 
 S TO C K-BROEER. See Broker ; 
 Lewis, Stocks ; Biddle, Stock Brokers ; 
 Dos Passes, Stock Brokers ; 2 So. L. R. 
 N. 8. 321. 
 
 STOCK-EXCHANGS. A building or 
 room in which stock-brokers meet to trans- 
 act their business of purchasing or selling 
 stocks. 
 
 A voluntary association (usually unincor- 
 porated) of persons who, for convenience in 
 the transaction of business with each other, 
 have associated themselves to provide a com- 
 mon place for the transaction of their busi- 
 ness. See Dos Passes, Stock Brokers, etc., 
 14; 2 Brewst. 571 ; 2 Daly, 329. It is usually 
 not a corporation, and in such case it is not a 
 partnership. In the absence of a statute its 
 real estate is held by all the members in the 
 same way as partnership real estate. At 
 common law, all the members had to be 
 joined in a suit ; Dicey, Parties, 1 70 ; 44 
 Conn. 259 ; though actions have been sus- 
 tained against the exchange as a body ; 2 
 Brewst. 571; 9 W. N. C. (Pa.) 441. 
 
 The members may make such reasonable 
 regulations for the government of the body as 
 they may think best ; see 24 Barb. 570; such 
 rules bind the members assenting to them ; 4 
 Abb. Pr. N. s. 162 ; but their personal assent 
 must appear ; 16 N. Y. 112 ; it may be in- 
 ferred from circumstances, as from their ad- 
 missions and acting as members ; L. R. 5 Eq. 
 63 ;, 25 Mo. 593 ; and a member is bound by 
 a by-law passed during his membership, 
 whether he votes for it or not ; 8 W. N. C. 
 (Pa.) 464. It is said that the courts will pre- 
 vent the interference with a member's rights 
 in an unincorporated association where the 
 latter is acting under a by-law which is un- 
 reasonable or contrary to public policy : Dos 
 Passes, Stock Brokers, 36 ; 4 Abb. Pr. N. s. 
 162; 47 Wise. 670; but see 80 111. 134. 
 
 Stock Exchange, seat in. Members 
 of a stock exchange are entitled to what 
 is known as a seat. Seats are held sub- 
 ject to the rules of the exchange. They are 
 a species of incorporeal property — a personal, 
 individual right to exercise a certain calling 
 in a.certain place, but without the attributes 
 of ^descendibility or assignability, which are 
 characteristic of other species of property; 
 Dos Passes, Stock Brokers, etc., 87. There 
 has been much controversy as to whether a 
 sea.t can be reached by an execution. A late 
 writer considers the following as settled: 
 ' 1. In the disposition of a seat or the pro- 
 ceeds thereof, the members of the exchange 
 will be preferred to outside creditors. 2. The 
 
 seat is not the subject of seizure and sale on 
 attachment and execution. 3. The proceeds 
 of the seat, in the hands of the exchange, are 
 capable of being reached, after members' 
 claims have been satisfied, to the same extent 
 and in the same manner as any other money 
 or property of a debtor. 4. A person own- 
 ing a seat in the exchange can be compelled, 
 by proceedings subsequent to execution, or 
 under the direction of a receiver, to sell his 
 seat to a person acceptable to the exchange, 
 and devote the proceeds to the satisfaction 
 of his judgment debts ;" Dos Passes, Stock 
 Brokers, etc., 96. See 5 W. N. C. (Pa.) 
 36 ; 94 U. S. 525 ; 20 Alb. L. J. 414 ; 9 
 Reporter, 305. 
 
 A regular register of all the transactions is 
 kept by an officer of the association, and 
 questions arising between the members are 
 generally decided by an arbitration commit- 
 tee. The official record of sales is the best 
 evidence of the price of any stock on any 
 particular day. The stocks dealt in at the 
 sessions of the board are those which are 
 placed on the list by a regular vote of the as- 
 sociation ; and when it is proposed to add a 
 stock to the list, a committee is appointed to 
 examine into the matter, and the board is 
 generally guided by the report of such com- 
 mittee. 
 
 STOCKHOLDERS. At common law 
 the members of a corporation are not liable 
 for the debts of a corporation ; 10 Wall. 675 ; 
 24 Gal. 540 ; Thomp. Liab. of Stockh. § 4. 
 But statutes have been passed in many states 
 by which they are made liable under certain 
 circumstances. These statutes are too various 
 to be treated here. They may be made liable 
 in equity when they have assets of the corpora- 
 tion which they ought not to retain. So they 
 may be liable when they have subscribed 
 money to the capital stock of the corporation 
 which they have not paid in. The capital stock 
 in such cases is usually said to be a trust 
 fund for the benefit of creditors ; 91 U. S. 56. 
 The cases in which this doctrine has most fre- 
 quently been applied have arisen out of suits 
 brought to compel stockholders to pay over 
 the amounts unpaid upon their stock subscrip- 
 tions. 
 
 The original holder of stock in a corpora- 
 tion is liable for unpaid instalments of stock 
 without an express promise to pay, and a 
 contract between him and the corporation or 
 its agent limiting his liability is void as to 
 creditors or the assignee in bankruptcy of the 
 corporation. Representations made to the 
 stockholder by an agent of the corporation as 
 to the non-assessability of stock beyond ascer- 
 tain percentage of its par value, constitute 
 no defence to an action against the stockholder 
 to enforce payment of the amount subscribed. 
 The legal effect of the word "non-assessa- 
 ble" in the certificate is at most a stipulation 
 against further assessments after the face 
 value of the stock is paid ; 91 U. S. 45. The 
 transferee of stock, when the transfer was 
 duly registered, is liable in the same way 
 
STOCKS 
 
 670 STOPPAGE m TRANSITU 
 
 upon his implied promise ; 91 U. S. 65. So 
 where the holder of shares had procured a 
 transfer to his name, he was held liable for 
 unpaid instalments, though he held the stock 
 only as collateral security for debts due him 
 by the transferror of the stock ; 96 U. S. 328. 
 Where certificates of stock had on their face 
 a condition that the residue of eighty per 
 cent, unpaid on the stock was to be paid on 
 the call of the directors, when ordered by a 
 vote of a majority of the stockholders, it 
 was held that the absence of a call was no 
 defence to an action for the residue by an as- 
 signee of the corporation in bankruptcy ; 3 
 Biss. 417. Agreements of members among 
 themselves that stock shall be considered as 
 "fully paid" are invalid ; L. R. 15 Eq. 407. 
 A corporation may, however, take in pay- 
 ment of its shares any property which it maj^ 
 lawfully purchase ; Thomps. Liab. of Stoekh. 
 § 134 ; and stock issued therefor as full paid, 
 will be so considered ; 7 C. L. J. 430 (C. C. 
 U. S. per Clifford, Circ. J.). 
 . In order to constitute one a shareholder, it 
 is not necessary that a certificate should have 
 been issued to him ; 32 Ind. 393 ; 46 Mo. 
 248. 
 
 The subject of the liability of stockholders 
 is treated with great fulness by Judge Thomp- 
 son in his work above cited. See 31 Am. 
 Rep. 88 ; 15 Am. L. Reg, N. 8. 648 ; 14 C. 
 L. J. 288 ; Stock. 
 
 STOCKS. Id Criminal Law. A ma- 
 chine, commonly made of wood, with holes in 
 it, in which to confine persons accused of or 
 guilty of crime. 
 
 It was used either to confine unruly of- 
 fenders by way of security, or convicted 
 criminals for punishment. This barbarous 
 punishment has been generally abandoned in 
 the United States. 
 
 STOPPAGE IN TRANSITU. A re- 
 sumption by the seller of the possession of 
 goods not paid for, while on their way to the 
 vendee and before he has acquired actual 
 possession of them. 15 Me. 314. 
 
 Chancellor Kent has defined the right of stop- 
 page in transitu to be that which the vendor has, 
 when he sells goods on credit to another, of re- 
 suming the possession of the goods while they 
 are in the poBsession of a carrier or middleman, 
 in the transit to the consignee or vendee, and he- 
 fore they arrive into his actual possession, or the 
 designation he has appointed for them on his 
 becoming bankrupt and insolvent ; 2 Kent, 703. 
 
 For most purposes, the possession of the car- 
 rier is considered to be that of the buyer ; but by 
 virtue of this right, which is an extension of the 
 right of lien, the vendor may reclaim the posses- 
 sion before they reach the vendee, in case of the 
 Insolvency of the latter ; 12 Pick. 313 ; 4 Gray, 
 336 ; 2 Caines, 98 ; 8 M. & W. 341, which gives a 
 history of the law. 
 
 The vendor, or a consignor to whom the 
 vendee is liable for the price ; 3 East, 93 ; 6 
 id. 17; 13 Me. 103; 1 Binn. 106; see 4 
 Camp. 31 ; 2 Bingh. N. c. 83 ; or a general 
 or special agent acting for him ; 9 M. & W. 
 518; 2 J. & W. 349; 6 Whart. 189; 13 
 
 Me. 93 ; see 1 Moore & P. 615 ; 4 Binah 
 479 ; 5 Term, 404 ; 4 Gray, 367 ; 1 Hill,N. 
 Y. 302; 5 Mass. 167; may exercise the 
 right. 
 
 The vendor can bring suit for the price of 
 the goods after he has caused them to be 
 stopped in transitu, and while they are yet 
 in his possession, provided he be ready to de- 
 liver them upon payment of the price • 1 
 Camp. 109 ; but the right of the vendor after 
 stoppage exceeds a mere lien ; for he may 
 resell the goods ; 6 Mod. 162. 
 
 There need not be a manual seizure : it is 
 sufiicient if a claim adverse to the buyer be 
 made during their passage ; 2 B. & P. 457 • 
 9 M. & W. 518 ; 13 Me. 93 ; 5 Denio, 333! 
 
 The goods sold must be unpaid for, either 
 wholly or partially; 7 Term, 440; 16 Mc. 
 314 ; 2 Exch. 702. See 5 C. & P. 179. As 
 to the rule where a note has been given, see 
 2 M. & W. 375 ; 7 Mass. 453 ; 4 Oush. S3 ; 
 7 Penn. 301 ; 14 id. 48 ; where there has 
 been a pre-existing debt; 4 Camp. 31; 16 
 Pick. 475; 3 Paige, Ch. 373; 1 Binn. 106; 
 
 1 B. & P. 563 ; where there are mutual 
 creditors; 7 Dowl. & R. 126; 4 Camp. 31; 
 16 Pick. 467. The vendeemust be insolvent; 
 4 Ad. & B. 332 ; 6 B. & Ad. 313 ; 20 Conn. 
 54 ; 8 Pick. 198; 14 Penn. 51. 
 
 The goods must be in transit; 3 Term, 
 466; 15 B. Monr. 270; 16 Pick. 474; 20 
 N. H. 154. In order to defend the right the 
 goods must have come actually into the hands 
 of the vendee or some person acting for him ; 
 
 2 M. & W. 632; 10 id. 436; 2 Cr. &J. 
 j:xch. 218; 1 Pet. 386; 3 Mas. 107; 2 
 Strobh. 309; 23 Wend. 611; or construc- 
 tively, as, by reaching the place of destina- 
 tion ; 9 B. & C. 422 ; 4 C. B. 837 ; 3 B. & 
 P. 320, 469 ; 7 Mass. 467 ; 20 N. H. 154; 2 
 Curt. C. C. 259 ; 3 Vt. 49 ; or by coming 
 into an agent's possession; 5 East, 175; 4 
 Camp. 181 ; 7 Mass. 453 ; 4 Dana, 7 ; 30 
 Penn. 254; see 22 Conn. 473; 17 N. Y. 
 249 ; 7 Cal. 213 ; or by being deposited for 
 the vendee in a public store or warehouse ; 5 
 Denio, 631 ; 7 Penn. 301 ; 7 Mann. & G. 
 360; 4 Camp. 261; or by delivery of part 
 for the whole; 14 M. & W. 28 ; 4 B. & P. 
 69 ; 1 C. & P. 207 ; 14 B. Monr. 324. As 
 to the effect of transfer of bill of lading, 
 see Story, Sales, §§ 343-347 ; 16 N. Y. 325; 
 16 Pick. 467; 34 Me. 564; 3 Conn. 9; 24 
 Vt. 55 ; 4 Mas. 5; 6 Cra. 338; 1 Pet. 445; 
 7 Ad. & E. 29. 
 
 Where there is no contract to the contrary, 
 express or implied, the employment of a car- 
 rier by a vendor of goods on credit consti- 
 tutes all middlemen, into whose custody they 
 pass for transportation and delivery, agents 
 of the vendor ; and until the complete de- 
 livery of the goods, are deemed in transitu; 
 21 Ohio St. 281. The right cannot be super- 
 seded by an attachment at the suit of a gen- 
 eral creditor, levied while the goods are in 
 transitu; 50 Miss. 500; id. 690. It the 
 vendor attach the goods while in transit, ms 
 right of stoppage w5l be destroyed ; 15 Conn. 
 
STOUTHRIEFF 
 
 671 
 
 STREAM 
 
 SS5. Where goods are to be delivered a part 
 at a time, and various deliveries are so made, 
 the right to stop the remaining portion is not 
 lost ; nor will the fact that the entire lot of 
 goods was transferred on the books of the 
 ■warehouse affect the right; 106 Mass. 76 ; 17 
 Wend. 504 ; 7 Am. L. Reg. 290. The ri^ht 
 of stoppage in transitu is looked upon with 
 favor by the courts ; 2 Eden, 77; 21 Ohio St. 
 
 281. 
 
 The effect of the exercise of this right is 
 to repossess the parties of the same rights 
 which they had before the vendor resigned 
 his possession of the goods sold : 1 Q. B. 389 ; 
 5 B. & Ad. 339 ; 10 B. & C. 99 ; 14 Me. 
 314; 5 Ohio, 98; 20 Conn. 53; 10 Tex. 2; 
 19 Am. Rep. 87 ; 14 C. L. J. 242. 
 
 See, generally, Benjamin, Story, Long, on 
 Sales ; Parson, on Contracts ; Cross, on Lien ; 
 Whittaker, on Stoppage in Transitu ; 5 Wait, 
 Action & Def. 612; 14 C. L. J. 242. 
 
 STOUTHRIEFF. In Scotch Law. 
 Formerly this word included in its significa- 
 tion every species of theft accompanied with 
 violence to the person ; but of late years it 
 has become the vox signata for forcible and 
 masterful depredation within or near the 
 dwelling-house ; while robbery has been more 
 particularly applied to violent depredation on 
 the highway, or accompanied by house-break- 
 ing. Alison, Prin. Scotch Law, 227. 
 
 STOWAGE. In Maritime liayr. The 
 proper arrangment in a ship of the different 
 articles of which a cargo consists, so that they 
 may not injure each other by friction, or be 
 damaged by the leakage of the ship. 
 
 The master of the ship is bound to attend 
 to the stowage, unless by custom or agreement 
 this business is to be performed by persons 
 employed by the merchant; Abb. Shipp. 
 228; Pardessus,Dr. Com. n. 721. See Steve- 
 dore. 
 
 Merchandise and other property must be 
 stored under deck, unless a special agreement 
 or established custom and usage authorizes 
 their carriage pn deck. 
 
 STRANDING. In Maritime Law. 
 
 The runninf of a ship or other vessel on 
 shore.; it is either accidental or voluntary. 
 
 Accidental stranding takes place where the 
 ship is driven on shore by the winds and 
 waves. 
 
 Voluntary stranding takes place where the 
 ship is run on shore either to preserve her 
 from a worse fate or for some fraudulent pur- 
 pose. Marsh. Ins. b. 1, c. 12, s. 1. 
 
 It is of great consequence to define accu- 
 rately what shall be deemed a stranding ; but 
 this is no easy matter. In one case, a ship 
 having run on some wooden piles, four feet 
 under water, erected in Wisbeach river, about 
 nine yards from shore, which were placed 
 there to keep up the banks of the river, and 
 having remained on these piles until they 
 were cut away, was considered by Lord Ken- 
 yon to have been stranded ; Marsh. Ins. b. 
 h s. 3. In another case, a ship arrived in the 
 
 river Thames, and upon coming up to the Pool, 
 which was full of vessels, one brig ran foul of 
 her bow and another of her stem, in cqn- 
 sequence of which she was driven aground, 
 and continued in that situation an hour, during 
 which period .several other vessels ran foul of 
 her; this Lord Kenyon told the jury that, 
 unskilled as he was in nautical affairs, he 
 thought he could safely pronounce to be no 
 stranding; 1 Camp. 131 ; 3 id. 431 ; 4 Maule 
 
 6 S. 503 ; 5 B. & Aid. 225 ; 4 B. & C. 736 ; 
 
 7 id. 224. See Perils of the Sea. 
 
 It may be said, in general terms, that in 
 order to constitute a stranding the ship must 
 be in the course of prosecuting her voyage 
 when the loss occurs ; there must be a settling 
 down on the obstructing object ; and the ves- 
 sel must take the ground by reason of extra- 
 ordinary casualty, and not from one of the 
 ordinary incidents of a voyage. Arn. Ins. §§ 
 297, 3] 8. And see Phill. Ins. 
 
 STRANGER. A person born out of the 
 United States ; but in this sense the term 
 alien is more properly applied nntU he be- 
 comes naturalized. 
 
 A person who is not privy to an act or 
 contract : example, he who is a stranger to 
 the issue shall not take advantage of the 
 verdict ; Brooke, Abr. Record, pi. 3 ; Viner, 
 Abr. 1. And see Comyns, Dig. Abatement 
 (H. 54). 
 
 When a man undertakes to do a thing, and 
 a stranger interrupts him, this is no excuse ; 
 Comyns, Dig. Condition (L 14). When a 
 party undertakes that a stranger shall do a 
 certain thing, he becomes liable as soon as the 
 stranger refuses to perform it ; Bacon, Abr. 
 Conditions (Q 4). 
 
 STRATAGEM. A deception either by 
 words or actions, in times of war, in order to 
 obtain an advantage over an enemy. 
 
 Stratagems, though contrary to morality, 
 have been justified unless they have been accom- 
 panied by perfidy, injurious to the rights of 
 humanity, as in the example given by Vattel of 
 an English frigate, which during a war betweeji 
 France and England appeared off Calais and 
 made signals of distress in order to allure some 
 vessel to come to its relief, and seized a shallop 
 and its crew who had generously gone out to 
 render it assistance. Vattel, Droit des Gens, 
 liv. 3 c. 9, § 178. 
 
 Sometimes stratagems are employed in mak- 
 ing contracts. This is unlawful and fraudulent, 
 and avoids the contract. See Fraud. 
 
 STRATOCRACV. A military govern- 
 ment ; government by military chiefs of an 
 army. 
 
 STREAM. A current of water. _ The 
 right to a water-course is not a right in the 
 fluid itself, so much as a right in the current 
 of the stream. 2 Bouvier, Inst. n. 1612. 
 The owner of the land on both sides of a 
 navigable stream, above the ebb and flow of 
 the tide, is the owner of the bed of the 
 stream, and entitled to all the ice that forms 
 within the extent of his lands; 14 Chi. 
 L. News, 83. See River; Water- 
 Course ; Ice. 
 
STREET 
 
 672 
 
 STRIKE 
 
 STREET. A public thoroughfare or 
 highway in a city or village. It differs from 
 a country highway; 21 Alb. L. J. 45 ; 4 S. & 
 R. 106; 11 Barb. 399. See Highway. 
 
 A street, besides its use as a highway for 
 travel, may be used for the accommodation 
 of drains, sewers, aqueducts, water- and gas- 
 pipes, lines of telegraph, and for other pur- 
 poses conducive to the general police, sani- 
 tary and business interests of a city ; 10 
 Barb. 26, 360; 15 id. 210; 17 id. 435; 2 
 R. I. 15. A street may be used by individ- 
 uals for the lading and unlading of carriages, 
 for the temporary deposit of movables or of 
 materials and scaffoldings for building or re- 
 pairing, provided such use shall not unrea- 
 sonably abridge or incommode its primary 
 use for travel; 6 East, 427; 3 Camp. 230; 
 Hawk. PI. Cr. c. 76, s. 49 ; 4 Ad. & E. 
 405 ; 4 Iowa, 199 ; 1 Denio, 524 ; 1 S. & R. 
 219; 24 Alb. L. J. 464. So a sidewalk 
 which is part of a street may be excavated 
 for a cellar, pierced by an aperture for the 
 admission of light, or overhung by an awn- 
 ing. But if the highway becomes more un- 
 safe and a passenger is injured by reason 
 thereof, the individual so using the street 
 will be responsible for the damages ; 18 N. Y. 
 79-84; 3 C. & P. 262 ; 23 Wend. 446; 3 
 Cush. 174; 6 trf. 524; 13 Mete. 299. But 
 an individual has no right to have an auction 
 in a street; 13 S. & R. 403 ; or to keep a 
 crowd of carriages standing therein ; 3 Camp. 
 230 ; or to attract a disorderly crowd to wit- 
 ness a caricature in a shop-window ; 6 C. & 
 P. 636. Such an act constitutes, a nuisance; 
 Ang. High. c. 6. 
 
 The owners of lands adjoining a street are 
 not entitled to compensation for damages 
 occasioned by a change of grade or other 
 lawful alteration of the street; 2 B. & A. 
 403; 1 Pick. 417; 4 N. Y. 195; 14 Mo. 
 20; 2 R. I. 154; 6 Wheat. 593; 20 How. 
 135 ; unless such damages result from a want 
 of due skill and care or an abuse of authority; 
 5 B. & Aid. 837 ; 1 Sandf. 22 ; 16 N. Y. 
 158, and note. 
 
 Under the statutes of several of the states, 
 assessments are levied upon the owners of 
 lots specially benefited by opening, widening, 
 or improving streets, to defray the expense 
 thereof; and such assessments have been ad- 
 judged to be a constitutional exercise of the 
 taxing power; 4 N. Y. 419; 8 Wend. 85; 
 18 Penn. 26 ; 21 id. 147 ; 3 Watts, 293 ; 23 
 Conn. 189; 5 Gill, 383 ; 27 Mo. 209; 4 R. 
 I. 230 ; Ang. High. c. 4. See Dill. Mun. 
 Corp. 
 
 Street Railway. Railways on streets are 
 operated either by horse or steam power. 
 When operated by horse power they do not 
 constitute an additional burden to the ease- 
 ment, and the adjoining land-owners are not 
 entitled to compensation ; 125 Mass. 516 ; 28 
 Am. Rep. 264 ; 14 Ohio St. 523 ; 82 Conn. 
 579; 51 Cal. 583; 28 Am. L. Reg. 16 ; 21 Alb. 
 L. J. 44 ; 25 id. 390 ; 9 Am. Rep. 465 ; 10 
 Am. L. Reg. 194. But steam railways, on 
 
 the contrary, are usually considered an addi- 
 tional burden, and compensation is allowed • 
 25 N.Y. 526 ; 46 Iowa, 366 ; 17 Minn. 215- 
 28 Am. L. Reg. 16. But see 6 Whart 25- 
 12 Iowa, 246 ; 21 111. 522. As to steam 
 motors, see 37 Am. Rep. 216 n. 
 
 The operation of street railways is an ex- 
 ercise of the public right of way over them • 
 and the street railway has only a qualified 
 right in its track. That is, the proprietary 
 right which a street railway has in its track is 
 subject to the right of eminent domain. The 
 legislature may grant to one company the 
 right to operate a street railway and then 
 afterwards grant part of the same railway to 
 another company. -One legislature cannot 
 by giving a franchise in a public street, de- 
 prive succeeding legislatures of the power of 
 performing the duty of regulating the use of 
 the street in such manner as to each legislature 
 shall seem to be for the best interests of the 
 public ; 28 Am. L. Reg. 765. 
 
 Where a company was chartered to operate 
 horse railways they were held not to have gone 
 beyond their charter in operating a railway 
 worked by means of a cable with steam for a 
 motive power ; 15 Chicago L. N. 7. 
 
 As streets belong to the public the para- 
 mount control and regulation of them is in 
 the hands of the legislature. But part of this 
 authority is generally delegated by charter or 
 statute to the municipal corporations; Dill. 
 Mun. Corp. 651-727. 
 
 There is no substantial difference between 
 streets as to which the legal title is in pri- 
 vate individuals and those m which it is in the 
 public, as to the rights of the people therein ; 
 94 U. S. 324. See Railkoad. 
 
 STRICT SETTLEMENT. A settle- 
 ment of lands to the parent for life, and after 
 his death to his first and other sons in tail, 
 with an interposition of trustees to preserve 
 the contingent remainders. 
 
 STRICTISSIMI JURIS (Lat. the most 
 strict right or law). In general, when a 
 person receives an advantage, as the grant of 
 a license, he is bound to conform strictly to 
 the exercise of the rights given him by it, and 
 in case of a dispute it will be strictly con- 
 strued. See 3 Stor. C. C. 159. 
 
 STRICTUM JUS (Lat.). Mere law, in 
 contradistinction to equity. 
 
 STRIKE. A combined effort by work- 
 men to obtain higher wages or other conces- 
 sions from their employers, by stopping work 
 at a preconcerted time. Where this is peace- 
 ably effected without positive breach of con- 
 tract, it is not unlawful, but it sometimes 
 amounts to conspiracy. Most of the decisions 
 bear upon questions arising more Or less indi- 
 rectly from the strike. 
 
 A conspiracy to obtain from a master me- 
 chanic money which he is under no legal obliga^ 
 tion to pay, by inducing his workmen to leave 
 him and by deterring others from entering his 
 employment, or by threatening to do this, so 
 that he is induced to pay the money demanded, 
 
.STIUKING A DOCKET 
 
 ers 
 
 SUB-CONTRACT 
 
 is an illegal conspiracy ; 106 Mass. 1 ; s. o. 8 
 Am. Rep. 6. See 9 Neb. 390. One has no right 
 to dictate whom the owners of property shall 
 employ to work it, nor to say that the work shall 
 not be done by such as the owners may employ. 
 'If a society or union , acting in its associate cap- 
 acity, bring about a "strike" and uphold a 
 striker's extraordinary demand, all who are in 
 the association and participate in its action are 
 guilty; 3 Pitts. Eep. 143. 
 
 It is no answer to a suit against a common 
 ■carrier for failure to deliver goods with reason- 
 able promptness, thai; a strike among their em- 
 ployfe prevented ; 20 N. T. 48 ; 18 111. 488. But 
 otherwise if the employes are discharged and 
 afterwards interfere unlawfully with the busi- 
 ness of the road ; 15 Alb. L. J. 39 ; Cooley, 
 Torts, 640, n. See Conspieact. 
 
 STRIKING' A DOCKET. In English 
 Practice. Entering the creditor's affidavit 
 and bond in bankruptcy.' 1 Deac. Bank. 106. 
 
 STRIKING A JURY. In English 
 Fiactice. Where, for nicety of the matter 
 in dispute, or other cause, a special jury is 
 necessary, upon motion and rule granted 
 thereon, the sheriff is to attend the prothono- 
 tary or proper officer with the book of free- 
 holders, and to take indifferently forty-eight 
 of the principal freeholders, when the attor- 
 neys on each aide, being present, are to strike 
 off twelve respectively, and the remaining 
 twenty-four are returned. 3 Bla. Com. 867. 
 Essentially the same practice prevails in New 
 York, Pennsylvania, and other states ; Tr. & 
 H. Pr. § 636. See Jury; Graham, Pr. 
 277. In some of the states a special or struck 
 jury is granted as of course upon the applies^ 
 tion of either party ; but more generally it 
 must.appear to the court that a fair trial can- 
 not be otherwise had, or that the intricacy 
 and importance of the case require it. One 
 of the parties being a citizen of color, the 
 judge cannot propeny direct a special jury to 
 be impanelled, one half of whom are of 
 African descent; 3 Baxt. 373; 100 U. S. 
 313. The statutory method of striking is 
 held to be mandatory ; 26 Wis. 423 ; 78 
 Penn. 303. See Abb. N. Y. Dig. tit. Trial, 
 ^ 196-208 ; Thomp. & Merr. Jur. § 14. 
 
 STRUCK. In Pleading. A word essen- 
 tial in an indictment for murder, when the 
 .death arises from any wounding, beating, or 
 bruising. 1 Bulstr. 184; 5 Co. 122; 3 Mod. 
 202 ; Cro. Jac. 655 ; 2 Hale, PI. Cr. 184, 
 186, 187; 6 Binn. 179. 
 
 STRUCK JURY. See Striking a 
 Jdby. 
 
 STRUCK OFF. A term applied to a 
 case which the court, having no jurisdiction 
 over, andnotbeingable to give judgment, or- 
 der to be taken off the record. This is done 
 by an entry to that effect. 
 
 STRUMPET. A harlot, or courtesan. 
 The word was formerly used as an addition. 
 Jacob, Law Dicit. 
 
 STUDENTS. Students living in a place 
 merely for the purpose of attending college, 
 have not such residence as will entitle them 
 Vol. II.— 43 
 
 to vote there ; Pry's Case, 71 Penn. 302 ; 
 contra, 10 Mass. 488. See McCr. Elect. § 
 Si et seq. 
 
 STUFF GOWN. The professional robe 
 worn by barristers of the outer bar; viz., 
 those who are not queen's counsel. Brown. 
 
 STULTIFY (Lat. stultus, stupid). To 
 make one out mentally incapacitated for the 
 performance of an act. 
 
 It has been laid down by old authorities ; 
 Littleton, § 405 ; 4 Co. 123 ; Cro. Eliz. 398 ; 
 that no man should be allowed to stultify him- 
 self, i.e. plead disability through mental un- 
 soundness. This maxim was soon doubted as 
 law ; 1 Hagg. Eccl. 414 ; 2 Bla. Com. 292 ; 
 and has been completely overturned; 4 Kent, 
 451. 
 
 STUPRUM (Lat.). In Roman Law. 
 The criminal sexual intercourse which took 
 place between a man and a single woman, 
 maid, or widow, who before lived honestly. 
 Inst. 4. 18. 4 ; Dig. 48. 5. 6 ; 50. 16. 101. 
 
 STURGEON. See Kotal Fish. 
 
 SUB-AGENT. A person appointed by 
 an agent to perform some duty, or the whole 
 of the business relating to his agency. 
 
 A sub-agent is generally invested with the 
 same rights, and incurs the same liabilities in 
 regard to his immediate employers, as if the 
 latter were the real principal. To this 
 general rule there are some exceptions : for 
 example, where, by the general usage of trade 
 or the agreement of the parties, sub-agents 
 are ordinarily or necessarily employed to ac- 
 complish the ends of the agency, there, if the 
 agency is avowed and the credit is exclusively 
 given to the principal, the intermediate agent 
 may be entirely exempted from all liability to 
 the sub-agent. The agent, however, wiU be 
 liable to the sub-agent unless such exclusive 
 credit has been given, although the real prin- 
 cipal or superior may also be liable ; Story, 
 Ag: § 386 ; Paley, Ag. Lloyd ed. 49. When 
 the agent employs a sub-agent to do the whole 
 or any part of the business of the agency, 
 without the knowledge or consent of his prin- 
 cipal, either express or implied, the latter will 
 only be entitled to recover from his immediate 
 employer, and his sole responsibility is also to 
 him. In this case the superior or real princi- 
 pal is not responsible to the sub-agent, because 
 there is no privity between them ; Story, Ag. 
 §§ 13, 14, 15, 217, 387. 
 
 Where, by an express or implied agree- 
 ment of the parties, or by the usages of trade, 
 a sub-agent is to be employed, a privity ex- 
 ists between the principal and the sub-agent, 
 and the latter may justly maintain his claim 
 for compensation both against the principal 
 and his immediate employer, unless exclusive 
 credit is given to one of them ; and in that 
 case his remedy is limited to that party ; 1 
 Livermore, Ag. 64 ; 6 Taunt. 147 
 
 SUB-CONTRACT. A contract by one 
 who has contracted for the performance of 
 labor or service with a third party for the 
 
SUB-MODO 
 
 674 
 
 SUBMISSION 
 
 whole or part performance of that labor or 
 service. 9 M. & W. 710; 3 Gray, 362; 17 
 Wend. 550. 
 
 SUB MODO (Lat.). Under a qualifica- 
 tion. A legacy may be given sub modo, that 
 is, subject to a condition or qualification. 
 
 SUB PEDB SIGILLI (Lat.). Under the 
 foot of the seal ; under seal. This expres- 
 sion is used when it is required that a record 
 should be certified under the seal of the court. 
 
 SUB POTESTATE (Lat.). Under, or 
 subject to, the power of another : as, a wife 
 is under the power of her husband ; a child 
 is subject to that of his father ; a slave to 
 that of his master. 
 
 SUB SILENTIO (Lat.). Under silence ; 
 without any notice being taken. Sometimes 
 passing a thing sub silentio is evidence of con- 
 sent. See Silence. 
 
 SUB-TENAITT. An under-tenant. 
 SUBALTERN. An ofiicer who exercises 
 his authority under the superintendence and 
 control of a superior. 
 
 SUBDIVIDE. To divide a part of a thing 
 which has already been divided. For ex- 
 ample, when a person dies leaving children, 
 and grandchildren, the children of one of his 
 own who is dead, his property is divided into 
 as many shares as he had children, including 
 the deceased, and the share of the deceased 
 is subdivided into as many shares as he had 
 children. > 
 
 SUBINFEUDATION. The act of an 
 inferior lord by which he carved out a part of 
 an estate which he held of a superior, and 
 granted it to an inferior tenant to be held of 
 himself. 
 
 It was an indirect mode of transferring the 
 fief, and resorted to as an artifice to elude the 
 feudal restraint upon alienation. This was 
 forbidden by the statute of Quia Emptores, 
 18 Ed. I.; 2 Bla. Com. 91 ; 3 Kent, 406. 
 See Cadw. Gr. Rents, § 7. 
 
 SUBJECT. In Scotch Law. The thing 
 which is the object of an agreement. 
 
 In Governmental Law. An individual 
 member of a nation, who is subject to the 
 laws.* This term is used in contradistinction 
 to citizen, which is applied to the same indi- 
 vidual when considering his political rights. 
 
 In monarchical governments, by subject is 
 meant one who owes permanent allegiance to 
 the monarch. See Greenl. Ev. § 286 ; Phill. 
 Ev. 732, n. 1 ; Morse, Citizenship ; Allegi- 
 ance ; Citizen ; Naturalization. 
 
 SUBJECT-MATTER. The cause; the 
 object ; the thing in dispute. 
 
 It is a fatal objection to the jurisdiction of 
 the court when it has not cognizance of the 
 subject-matter of the action : as, if a cause 
 exclusively of admiralty jurisdiction were 
 brought in a court of common law, or a crimi- 
 nal proceeding in a court having jurisdiction 
 of civil eases only ; 10 Co. 68, 76 ; 1 Ventr. 
 183 ; 8 Mass. 87 ; 12 id. 367. In such case, 
 
 neither a plea to the jurisdiction nor any other 
 plea would be required to oust the court of 
 jurisdiction. The cause might be dismissed 
 upon motion by the court. 
 
 SUBJECTION (Lat. sub, under, yacio, to 
 put, throw). The obligation of one or more 
 persons to act at the discretion or according 
 to tlie judgment and will of others. Private 
 subjection is subjection to the authority of 
 private persons. Public subjection is enbjeo- 
 tion to the authority of public persons. 
 
 SUB-LEASE. A lease by a tenant to 
 another person of a part of the premises held 
 by him ; an under-lease. 
 
 SUBMISSION (Lat. suJmtmo,— juj, 
 under, mittere, to put, — a putting under. 
 Used of persons or things. A putting one's 
 person or property linder the control of an- 
 other). A yielding to authority. A citizen 
 is bound to submit to the laws, a child to bis 
 parents, a guardian to his ward. A victor 
 may enforce the submission of his enemy. 
 
 In Maritime Law. Submission on the 
 part of the vanquished, and complete posses- 
 sion on the part of the victor, transfer prop- 
 erty as between belligerents; 1 Gall. 532. 
 
 In Practice. An agreement, parol (oral 
 or written) or sealed, by which parties agree 
 to submit their difierences to thfe decision of 
 a referee or arbitrators. Jt is sometimes 
 termed a reference; Kyd, Arb. 11; Caldw. 
 Arb. 16; 17 Ves. 419; 3 M. & W. 816; 6 
 Watts, 359 ; 16 Vt. 663 ;_ 4 N. Y. 157. 
 
 It is the authority given by the parties 
 to the arbitrators, empowering them to in- 
 quire into and determine the matters in dis- 
 pute. 
 
 It may be in pais, or by rule of court, or 
 under the various statutes ; 1 Dev, 82. 
 
 It may be oral, but this is inconvenient, 
 because open to disputes ; by written agree- 
 ment not under seal (in Louisiana and Cali- 
 fornia the submission must be in writing, 5 
 La. 133 ; 2 Cal. 92) ; by indenture, with mu- 
 tual covenants to abide by the decision of the 
 arbitrator; by deed-poll, or by bond, each 
 party executing an obligation to the other 
 conditioned to be void respectively upon the 
 performance of the award ; Caldw. Arb. 16 ; 
 6 Watts, 367. If general in terms, both 
 law and fact are referred ; 7 Ind. 49 ; if litn- 
 ited, the arbitrator cannot exceed his autho- 
 rity; 11 Cush. 37. 
 
 When to be made. A submission may be 
 made at any time of causes not in court, and 
 at common law, where a cause was depend- 
 ing, submission might be made by rule of 
 court before the triiU, or by order of nisipriut 
 after it had commenced, which was after- 
 wards made a rule of court ; 1 Mann. & G. 
 976; 2 B. & Aid. 395; 3 S. & R. 262; 4 
 Halst. 198. 
 
 Who may make. Any one capable of mak- 
 ing a disposition of his property or release of 
 his right, or capable of sumg or being sued, 
 may make a binding submission to arbitra- 
 tion ; but one under civil or natural incapacity 
 
SUBMISSION 
 
 675 
 
 SUBMISSION 
 
 cannot be bound by his sabmission ; Wats. 
 Arb. 65 ; Russ. Arb. 20 ; 2 P. Wms. 45 ; 
 9Ves. 350; 8 Me. 315; U id. 326; 2 N. 
 H. 484 ; 8 Vt. 472 ; 16 Mass. 396 ; 5 Conn. 
 367; 1 Barb. 584 ; 2 Kob.Va. 761 ; 6 Munf. 
 458; Paine, 646; 1 Wheat. 304; 5 How. 
 83. . . 
 
 In general, in cases of incapacity of the 
 real owner of property, as well as in many 
 cases of agency, the person who has the le- 
 gal contrM of the property may make sub- 
 mission, including a husband for his wife ; 
 Stra. 361 ; 6 Ves. 846 ; a parent or guardian 
 for an infant ; Freem. 62, 139 ; 11 Me. 326 ; 
 12 Conn. 376 ; 3 Caines, 253 ; but not a 
 guardian ad litem ; 9 Humphr. 129; a trus- 
 tee for his cestui que trust ; 3 Esp. 101 ; an 
 attorney for his client ; 1 Wils. 28, 58 ; 1 
 Ld. Raym. 246 ; 12 Ala. 252 ; 9 Penn. 101 ; 
 23 id. 393 ; 2 HiU, N. Y. 271 ; 4 T. B. 
 Monr. 375 ; 7 Cra. 436 ; but see 6 Weekl. 
 Rep. 10 ; an agent duly authorized for his 
 principal; 8 B. & C. 16; 5 id. 141; 8 Vt. 
 472; 11 Mass. 449; 5 Green, N. J. 38; 29 
 N. H. 405 ; 8 N. Y. 160 ; an executor or ad- 
 ministrator at his own peril, but not thereby 
 necessarily admitting assets ; 2 Stra. 1144; 20 
 Pick. S84; 6 Leigh, 62; 5 T. B. Monr. 
 240; 6 Conn. 621; see 5 Bingh. 200; 1 
 Barb. 419; 3 Harr. N. J. 442; assignees 
 under bankruptcy and insolvency laws, under 
 the statutory restrictions, stat. 6 Geo. IV. c. 
 16, and state statutes; the right being lim- 
 ited in all cases to that which the person act- 
 ing can control and legally dispose of; 6 
 Mass. 78 ; 6 Munf. 453 ; 4 T. B. Monr. 240 ; 
 21 Miss. 133 ; but not including a partner for 
 a partnership ; 3 Bingh. 101 ; Holt, 143 ; 1 
 Cr. M. & R. 681; 1 Pet. 221; 19 Johns. 
 137; 2 N. H. 284 ; 5 Gill & J. 412 ; 12 S. 
 & R. 243; CoUyer, Partn. §§ 439-470; 3 
 Kent, 49. 
 
 What may be included in a submission. 
 Generally, any matter which the parties 
 might adjust by agreement, or which may be 
 the subject of an action or suit at law, except 
 perhaps actions {qui tarn) on penal statutes 
 by common informers ; for crimes cannot be 
 made the subject of adjustment and compo- 
 sition by arbitration, this being against the 
 most obvious policy of the law ; Caldw. Arb. 
 12; 5 Wend. Ill; 13 S. & R. 319; 2 
 Rawle, 341 ; 7 Conn. 345; 6 N. H. 177 ; 16 
 Miss. 298 ; 16 Vt. 450 ; 10 Gill & J. 192 ; 
 5 Munf. 10; including a debt certain on a 
 specialty, any question of law, the construc- 
 tion of a will or other instrument, any per- 
 sonal injury on which a suit will lie for dam- 
 ages, although it may be also indictable ; 2 
 Madd. 6; 9 Ves. 367; 8 Me. 119, 288; 6 
 Pick. 148. 
 
 An agreement to refer future disputes will 
 not be enforced 'by a decree of specific per- 
 formance, nor will an action lie for refusing 
 to appoint an arbitrator in accordance with 
 such an agreement ; 6 Ves. 815 ; 2 S. & S. 
 «8;2B. &P. 135; 2 Stor. 800; 15 Ga. 
 *'3. It is considered against public policy to 
 
 exehide from the tribunals of the state dis- 
 putes the nature of which cannot be fore- 
 seen ; 4 Bro. C. C. 312, 315; 2 Ves. 131 ; 
 19 id. 431 ; 1 Swanst. 40. See 31 Penn. 
 306. 
 
 Effect of. A submission of a case in court 
 works a discontinuance and a waiver of de- 
 fects in the process ; 2 Penn. 868 ; 18 Johns. 
 22 ; 10 Yerg. 439 ; 2 Humphr. 516 ; 5 Gray, 
 492 ; 4 Hen. & M. 363 ; 5 Wise. 421 ; 4 N. 
 J. 647 ; 41 Me. 855 ; 30 Vt. 610 ; 2 Curt. C. 
 C. 28; see 20 Barb. 262; 9 Tex. 44; and 
 the bail or sureties on a replevin bond are dis- 
 charged; 1 Pick. 192; 4 Green, N. J. 277; 
 7 id. 348; 1 Ired. 9; 3 Ark. 214; 2 B. & 
 Ad. 774. But see 6 Taunt. 379; 10 Bingh. 
 118. But this rule has been modified in Eng- 
 land by statute ; Stat. 17 & 18 Vict. c. 126, 
 §11 ; 8 Exch. 327. 
 
 The submission which defines and limits as 
 well as confers and imposes the duty of the 
 arbitrator must be followed by him in his con- 
 duct and award ; but a fair and liberal con- 
 sti'uction is allowed in its interpretation ; 1 
 Wms. Saund. 65; 11 Ark. 477; 3 Penn. 
 144; 13 Johns. 187; 2 N. H. 126; 2 Pick. 
 534; 3 Halst. N. J. 195; 1 Pet. 222. If 
 general, it submits both law and fact ; 7 Ind. 
 49 ; if limited, the arbitrator cannot exceed 
 his authority; 11 Cush. 37. 
 
 The statutes of many of the states of the 
 United States provide for submissions by the 
 parties before a justice of the peace, in which 
 case the award will be enforced as if it had 
 been made under rule of court ; and statutes 
 also regulate submissions made under rule of 
 court. 
 
 Revocation of a submission may take place 
 at any time previous to the award, though it 
 be expressed in the agreement to be irrevoca^ 
 ble. The remedy of the injured party is by 
 an action for breach of the agreement ; 8 Co. 
 81 ; 4 B. & C. 103 ; 10 id. 483 ; 1 Cow. 
 235 ; 12 Wend. 578 ; 1 Hill, N. Y. 44 ; 12 
 Mass. 49; 20 Vt. 198 ; 28 id. 532 ; 26 Me. 
 251, 459 ; 3 Day, 118 ; 23 Penn. 393 ; 4 
 Sneed, 462 ; 6 Dana, 307. A submission by 
 deed must be revoked by deed ; 8 Co. 72, and 
 cases above. 
 
 A submission under rule of court is gene- 
 rally irrevocable, by force of statutory pro- 
 visions, both in England and the United 
 States ; Stat. 3 & 4 Will. IV. c. 42 ; 5 Burr. 
 497 ; 12 Mass. 47 ; 4 Me. 459; 1 Binn. 42 ; 
 6 N. H. 36 ; 4 Conn. 498 ; 5 Paige, 575 ; 3 
 Halst. 116 ; 3 Ired. 333 ; 19 Ohio, 245. 
 
 A submission at common law is generally 
 revoked by the death of either party {unless 
 it be stipulated otherwise), or of the arbitral 
 tor, or his refusal to act ; 2 B. & Aid. 394 ; 
 3 B. & C. 144 ; 8 M. & W. 873 ; but see 15 
 Pick. 79; 3 Halst. 116; 3 Gill, 192; 2 Gill 
 & J. 479 ; 3 Swan, 90 ; 15 Ga. 473 ; by mar- 
 riage of a feme sole, and the husband and 
 wife may then be sued on her arbitration bond; 
 5 East, 266. It is not revoked by the bank- 
 ruptcy of the party or by the death of the 
 arbitrator after publication of the award ; 4 
 
SUBNOTATIONS 
 
 676 
 
 SUBROGATION 
 
 B. & Aid. 250; 9 B. & C. 629 ; 29 E. L. & 
 E. 362 ; 21 Ga. 1. 
 
 SUBNOTATIONS (Lat.). In CivU 
 Iiaw. The answers of the prince to ques- 
 tions which had been put to him respecting 
 some obscure or doubtful point of law. See 
 "Kesckipt. 
 
 SUBORNATION OT PERJURY. In 
 Criminal Law. The procuring another to 
 commit legal perjury, who in consequence of 
 the persuasion takes the oath to which he has 
 been incited. Hawk. PI. Or. b. 1, c. 69, 
 s. 10. 
 
 To complete the offence, the false oath 
 must be actually taken, and no abortive 
 attempt to solicit will complete the crime ; 2 
 Show. 1 ; 5 Mete. Mass. 241. 
 
 But the criminal solicitation to commit 
 perjury, though unsuccessful, is a misde- 
 meanor at common law ; 2 East, 1 7 ; 6 id. 
 464. For a form of an indictment for an 
 attempt to suborn a person to commit perjury, 
 see 2 Chitty, Cr. Law, 480. 
 
 The act of congress of March 3, 1825, c. 
 65, § 13, as amended by subsequent acts, pro- 
 vides that if any person shall knowingly or 
 wilfully procure any such perjury, mentioned 
 in the act, to be committed, every such per- 
 son so offending shall be guilty of suborna- 
 tion of perjury, and shSl, on conviction 
 thereof, be punished by fine, not exceeding 
 two thousand dollars, and by imprisonment 
 and confinement to hard labor, not exceeding 
 five years, according to the aggravation of the 
 offence; and shall, moreover, thereafter be 
 incapable of giving testimony in any court of 
 the United States until such time as the judg- 
 ment against him is reversed. R. S. §§ 5392, 
 5393. Sees How. 41. 
 
 S U B F CB N A (Lat. sub, under, poena, 
 penalty). In Practice. A process to cause 
 a witness to appear and give testimony, com- 
 manding him to lay aside all pretences and 
 excuses, and appear before a court or magis- 
 trate therein named, at a time therein men- 
 tioned, to testify for the party named, under 
 a penalty therein mentioned. This is called 
 distinctively a subpmna ad testificandum. 
 
 On proof of service of a subpoena upon the 
 witness, and that he is material, an attach- 
 ment may be issued against him for a con- 
 tempt, if he neglect to attend as commanded. 
 In Chancery Practice. A mandatory 
 writ or process directed to and requiring one 
 or more persons to appear at a time to come 
 and answer the matters charged against him 
 or them. The writ of subpoena was origin- 
 ally a process in the courts of common law, 
 to enforce the attendance of a witness to give 
 evidence ; but this writ was used in the court 
 of chancery for the same purpose as a citation 
 in the courts of civil and canon law, to com- 
 pel the appearance of a defendant,' and to 
 oblige him to answer upon oath the allega- 
 tions of the plaintiff. 
 
 It was invented by John Waltliam, bishop of 
 Salisbury, and chancellor to Rich. II., under 
 
 the authority of the statutes of Westminster 
 2, and 13 Edw. I. c. 34, which enabled him 
 to devise new writs ; Cruise, Dig. t. 11, c. I, 
 §§ 12-17. See Vin. Abr. Subpoena;' i 
 Swanst. 209 ; Spence, Eq. Jur. 
 
 SUBPCBNA DUCES TECUM. In 
 Practice. A writ or process of the same 
 kind as the suhpmno ad testificandum, in- 
 cluding a clause requiring the witness to bring 
 with him and produce to the court hooks, 
 papers, etc., in his hands, tending to elucidate 
 the matter in issue. 2 Bla. Com. 382. See 
 
 DiSCOVEKY. 
 
 SUBREPTIO (Lat.). In CItU Law. 
 Obtaining gifts of escheat, etc., from the 
 king by concealing the truth. Bell, Diet.; 
 Calv. Lex. Subripere. 
 
 SUBREPTION. In French Law. 
 
 The fraud committed to obtain a pardon, 
 title, or grant, by alleging facts contrary to 
 truth. 
 
 SUBROGATION. The substitution of 
 another person in the place of the creditor, 
 to whose rights he succeeds in relation to the 
 debt. That change which puts another per- 
 son in the place of the creditor, and which 
 makes the right, the mortgage, or the secu- 
 rity which the creditor has pass to the person 
 who is subrogated to him, — that is to say, 
 who enters into his right. Domat. Civ. Law, 
 pt. i. 1. iii. t. i. § vi. 
 
 It is a legal fiction by force of which an obli- 
 gation extinguished by payment madebyathird 
 party Is considered as continuing to subsist for 
 the benefit of this third person, who makes but 
 one and the same person with the creditor In the 
 view of the law. Subrogation is the act of put- 
 ting one thing in place of another, or one person 
 In place of another. Guyot, Eipertoire Univer- 
 selle. Subrogation,, sect. 11. 
 
 The subBtitution of one creditor to the riglts 
 and securities of another. Siibrogatio est trans- 
 fusio unius ereditoris in alium eademvelmitwri 
 eonditione. Merlin, Inst, de Droit, Subrogatio. 
 
 Subrogation gives to the substitute all the 
 rights of the party for whom he is substituted ; 4 
 Md. Ch. Dec. 253. Among the earlier civil-law 
 writers, the term seems to have been used syno- 
 nomously with substitution; or, rattier, subatilv- 
 tion Included subrogation as well as its present 
 more limited signification. See Domat, Civ. 
 La,v, passim; Pothier, Obi. passim. The tern 
 substitution is now almost altogether conflned to 
 the law of devises and chancery practice. See 
 
 SnBSTITUTION. , , 
 
 The word subrogation is originally found pmy 
 in the civil law, and has been adopted, witbtbe 
 doctrine itself, thence into equity; hut mtbe law 
 as distinguished from equity It hardly appears as 
 a term, except perhaps in those states where, as 
 in Pennsylvania, equity is administered througn 
 the forms of law. There the term subrogation, 
 adopted from the Eoman law, has of late yms 
 come Into quite general use. 6 Penn. 504. m 
 equitable doctrine of marshalling assets is pia'i'J 
 derived from the Roman law of subrogation or 
 substitution ; and although the word is, or, 
 rather, has been used sparingly in the common 
 law, many of the doctrines of subrogation are 
 familiar to the courts of common law. 
 
 Subrogation difiers from cession in this wm 
 while cession only substitutes the one to whom 
 
SUBROGATION 
 
 677 
 
 SUBROGATION 
 
 tlie debt is ceded In place of the ceder, in Bubro- 
 gation the debt would have become extinguished 
 but for the effect of the subrogation ; and, also, 
 because although subrogation supposes a change 
 in the person of the creditor, it does not imply 
 novation ; but, through the Action of the law, 
 the party who is subrogated is considered as mak- 
 ing only one and the same person with the cred- 
 itor whom he succeeds ; MassS, Droit Commer- 
 ciel, Payment in Subrogation. 
 
 It is one thing to decide that a surety is en- 
 titled, on payment, to have an assignment of the 
 debt, and quite another to decide that he is en- 
 titled to be subrogated or substituted as to the 
 equities and securities to the place of the credi- 
 tor, as against the debtor and his co-sureties ; 
 Story, Eq. Jur. § 493, n. ; 3 McLean, 451 ; 1 
 Dev. Ch. 137. 
 
 Subrogation of persons is of three sorts : — 
 
 First, the canonists understand by subrogation 
 the succession of a priest to the rights of action 
 of the occupant of a benefice who has died dur- 
 ing a suit. Gruyot, Kipert. Univ. Subrogation of 
 Persons, sect. 1. 
 
 Second, the second sort arose from a local cus- 
 tom of the Bourbonnais, and had for its object 
 the protection of the debtor from the effects of 
 collusion on the part of the attaching creditor. 
 
 Third, subrogation in fact to liens and pledges, 
 which is only the change of one creditor for an- 
 other. See Cruyot, id sup., and, also, MassS, 
 Droit Commerciel. 
 
 Nearly all the instances in which the common 
 law has adopted the doctrines of subrogation 
 have arisen under this latter class. 
 
 Convention subrogation results, as its name 
 indicates, from the agreement of the parties, 
 and can take efTect only by agreement. This 
 agreement is, of course, with the party to be 
 subrogated, and may be either by the debtor 
 or creditor. La. Civ. Code, 1249. 
 
 Thus, it may happen when the creditor re- 
 ceiving payment from the third person subro- 
 gates the payer to his right against the 
 debtor. This must happen by express agree- 
 ment; but no formal words are required. 
 This sort of subrogation only takes place 
 where there is a payment of the debt by a 
 third party, — not where there is an assign- 
 ment, in which case subrogation results from 
 the assignment. 
 
 This principle is recognized by the common 
 law in cases where upon payment the securi- 
 ties are transferred to a party having an in- 
 terest in the payment. Or, in case the debtor 
 borrows money from a third party to pay a 
 debt, he may subrogate the lender to the 
 rights of the creditor ; for by this change the 
 rights of the other creditors are not injuri- 
 ously affected. To make this mode of subro- 
 gation valid, the borrowing and discharge 
 must take place before a notary ; in the bor- 
 rowing it must be declared that the money 
 has been borrowed to make payment, and in 
 the discharge, that it has been made with 
 money furnished by the creditor. Massfe, Droit 
 Commerciel, lib. 5, tit. 1, oh. 5, §§ 1, 2. 
 
 "The doctrine of subrogation is derived 
 from the civil law (43 Penn. 518). In this 
 country, under the initial guidance of Chancel- 
 lor Kent, its principles have been more widely 
 developed than in England (44 Mo. 838). 
 It is treated as the creature of equity, and is 
 
 so administered as to secure real and essential 
 justice without regard to form (id.), and is 
 independent of any contractual relations be- 
 tween the parties to be effected by it (6 Neb. 
 219). It is broad enough to include every 
 instance in which one party pays a debt for 
 which another is primarily answerable, and 
 which in equity and good' conscience should 
 have been discharged by the latter (33 Gratt. 
 527 ; 43 Conn. 244)." Sheld. Subr. § 1. 
 
 Legal subrogation takes place to its full ex- 
 tent— 
 
 First, for the benefit of one who being 
 himself a creditor pays the claim of another 
 who has a preference over him by reason of 
 his liens and securities. For in this case, it 
 is said, it is to be presumed that he pays for 
 the purpose of securing his own debt ; and 
 this distinguishes his case from that of a mere 
 stranger. Domat, Civ. Law, part 1, lib. 3, 
 tit. 1, 8 6, art. 6 ; Dig. qui pvt. in pig. 1. 16 ; 
 1. 11, ? 4; 1. 12,_§ 9 ; 1. 17, § 9. And so, 
 at common law, it a junior mortgagor pays 
 off the prior mortgage, he is entitled to de- 
 mand an assignment thereof ; 56 Penn. 76 ; 
 36 Me. 577. 
 
 Second, for the benefit of the purchasers 
 of an immovable, who uses the price which 
 he paid in paying the creditors to whom the 
 inheritance was mortgaged. 
 
 Third, for the benefit of him who, being 
 held with others or for others for the payment 
 of the debt, has an interest in discharging it. 
 
 Subrogation takes place for the benefit of 
 CO - promisors or co - guarantors, as between 
 themselves, and for the benefit of sureties 
 against their principals. 
 
 But between co-guarantors and co-prom- 
 isors subrogation benefits him who pays the 
 debt only to the extent of enabling him to 
 recover from each separately his portion of 
 the debt. 
 
 As against his co-sureties, the surety in- 
 creasing the value of their joint security is 
 entitled to subrogation only ta the amount 
 actually paid; 6 Ind. 857; 12 Gratt. 642. 
 Any arrangement by one co-surety with the 
 principal enures to the benefit of all the co- 
 sureties ; 26 Ala. N. S. 280, 728. 
 
 Subrogation for the whole sum takes place 
 only when the person who pays ought to have 
 recourse to the principal debtorfor the whole. 
 But when the person paying ought only to 
 have recourse for part, and is debtor withou t 
 recourse and on his own account also, the 
 subrogation will only be for the portions for 
 which he might have recourse ; Massfe, ub. sup. 
 
 Most of the cases of subrogation so called 
 in the common law arise from transactions of 
 principals and sureties. 
 
 Courts of equity have held sureties enti- 
 tled, upon payment of the debt due by their 
 principal to the creditor, to have the full 
 benefit of all the collateral securities, both of 
 a legal and equitable nature, which the credi- 
 tor has taken as an additional pledge for his 
 debt ; Story, Eq. Jur. § 499. 
 
 It is a settled rule that in all cases where a 
 
SUBROGATION 
 
 678 
 
 SUBROGATION 
 
 party only secondarily liable on an obligation 
 is compelled to discharge it, he has a right in 
 a court of equity to stand in the place of the 
 creditor, and be subrogated to all his rights 
 against the party previously liable ; 4 Johns. 
 Ch. 123; 29 Vt. 676; 4 Pick. 605; 3 Stor. 
 392 ; 1 Gill & J. 346 ; 10 Yerg. 310 ; 27 
 Miss. 679. This is clearly the case where the 
 surety takes an assignment of the security ; 2 
 Me. 341. 
 
 If a surety on a debt secured by mortgage 
 pays the debt, he is entitled to the mortgage 
 as security ; 1 Turn. & R. 224 ; 3 Mylne & 
 R. 183; 2 Sim. 155. In all cases the pay- 
 ment must have been made by a party liable, 
 and not by a mere volunteer ; 3 Paige, Ch. 
 117; 1 Spears, Eq. 37 ; 2 Brock. 252; 4 
 Bush, 471. The creditor must have had his 
 claim fully satisfied ; 1 Gill & J. 347 ; and the 
 surety claiming subrogation must have paid 
 it ; 6 Watts, 221 ; 3 Hayw. 14 ; 3 Barb. Ch. 
 625 ; 11 Ired. 118 ; 13 111. 68 ; and is subro- 
 gated, where he has paid to redeem a security, 
 only to the amount he has paid, whatever be 
 the value of the security ; 19 Miss. 632 ; 2 
 Sneed, 93; 11 Gratt. 522. But giving a 
 note is payment within this rule ; 8 Tex. 66. 
 Judgment obtained against the principal 
 and surety does not destroy the relation as 
 between themselves; 2 Ga. 239; 11 Barb. 
 159. If a judgment is recovered against a 
 debtor and surety separately for the same 
 amount, the surety can enforce the judgment 
 against his principal when assigned to him 
 after he paid the amount of the judgment ; 
 10 Johns. 624; 3 Rich. Eq. 139. 
 
 A surety in a judgment to obtain a stay 
 of execution, is not entitled to be substituted 
 on paying the judgment, as against subsequent 
 creditors; 5 W. & S. 352. Nor can the 
 surety be subrogated, although he has paid 
 a judgment, if he has sued his principal and 
 failed to recover ; 8 Watts, 384. 
 
 If a judgment is recovered and the sureties 
 pay, they are entitled to be subrogated ; 1 W. 
 &S. 155; 3 Leigh, 272; 14 Ga. 674; 5 
 B. Monr. 393 ; 22 Ala. N. s. 782 ; 3 Sandf. 
 Ch. 431 ; even where a mortgage had been 
 given them, but which turned out to be in- 
 valid; 4 Hen. & M. 436. This seems to be 
 contradicted in 3 Gratt. 343. 
 
 Entry of satisfaction on a judgment does 
 not destroy subrogation, if the entry was not 
 made at the instance of the surety ; 20 Penn. 
 41. 
 
 Where the surety has become liable on the 
 contract of his principal, when the principal 
 fails to perform the contract the surety may 
 pay and be subrogated ; 3 Gill & J. 243 ; 15 
 N. H. 119 : thus, where the sijrety was held 
 on a bond which he was obliged to pay ; 2 
 Call, 125 ; 1 Ired. Ch. 340 ; 22 Vt. 274 ; 
 and thLs even where the bond was given to 
 the United States to pay duties on goods be- 
 longing to a third person ; 4 Rand. 438. 
 And where the bond was given for the pay- 
 ment of the price of land, he was allowed to 
 
 sell the land ; 2 D. & B. 390 ; 3 Ala. n 8 
 430 ; 2 B. Monr. 50. 
 
 But it is said the mere payment does not 
 ipso facto subrogate him ; 6 W. & S. 190. 
 
 If the surety be also a debtor, there will 
 be no substitution, unless expressly made ; 2 
 Penn. 296 ; and the person who claims a 
 right of subrogation must have superior 
 equities to those opposing him ; 3 Penn. 200. 
 Sureties of a surety, and his assignee, are 
 entitled to all the rights of the surety, and 
 to be substituted to his place as to all reme- 
 dies against the principal or his estate; 5 
 Barb. 398 ; 22 Vt. 274. 
 
 A surety cannot compel the creditor to ex- 
 haust his security before coming on the 
 surety ; 37 N. J. L. 370. 
 
 Fourth, subrogation is allowed in the civil 
 law for the benefit of the beneficiary heir 
 who has paid with his own money the debts 
 of the inheritance ; Massfe, ub. sup. 
 
 Fifth, and for the benefit of the payer of 
 a debt through the medium of a bill of ex- 
 change or promissory negotiable note; Code 
 Commerciel, 159. 
 
 Sixth, and for the benefit of the successive 
 indorsers of a note, to the rights of those 
 who follow them against those who precede 
 them, when they are called upon to pay the 
 note. 
 
 The debt of the acceptor of a bill is not 
 extinguished by the payment of the bill by 
 the indorser or drawer ; for the same rights 
 will remain against him, in their favor, which 
 the holder had himself, unless he is a mere 
 accommodation acceptor ; Story, Bills, § 422. 
 See a limitation in 19 Barb. 562. 
 
 But if payment is made by an indorser 
 who had not received due notice, it is at his 
 own risk, and he can ordinarily have no re- 
 course over to third persons ; Chitty, Bills, 
 c. 9. 
 
 An accommodation acceptor is not entitled 
 on payment to a security given to an accom- 
 modation indorser ; 1 Dev. Eq. 205. 
 
 An accommodation indorser who is obliged 
 to pay the note is subrogated to the collateral 
 securities; 12 La. An. 733. This subrogation 
 in the civil law operates for the benefit of a 
 holder by intervention (i. e. who pays for the 
 honor of the drawer). 
 
 This species of subrogation (by indoree- 
 ment) is to b'e distinguished from that which 
 a surety on a note has when he is compelled 
 to pay. Such surety is entitled to the benefit 
 of all the securities which the holder has ; 2 
 Rich. Eq. 179; 4 Ired. Eq. 22; 22 Penn. 
 68 ; 7 N. H. 236. 
 
 In the civil law, an agent who buys goods 
 for his principal with his own money is eo far 
 subrogated to the principal's rights that if he 
 fails flie agent may sell his goods as if they 
 were his own ; Cour. de Cass. Nov. 14, 1810. 
 An insurer of real property is subrogated 
 to the rights of the insured against third parties 
 who are responsible for the loss at common 
 law ; 2 B. & C. 254 ; 13 Mete. 99 ; 78 N. 1- 
 
SUBROGATION 
 
 679 
 
 SUBSTANCE 
 
 399 ; S9 Me. 253 ; 25 Conn. 265. And it is 
 well settled in Pennsylvania, New York, 
 New Jersey, and Illinois, that the mortgagee 
 cannot, after payment of his debt by the 
 underwriter, enforce his claim against the 
 mortgagor, but that the underwriter is sub- 
 rogated to the rights of the mortgagee; 17 
 Penn. 253 ; 70 N. Y. 19 ; 52 111. 442 ; 2 
 Dutch. 541 ; 45 Me. 354. So in Canada ; 
 1 Low. Can. 222. The contrary view, how- 
 ever, has been consistently maintained in 
 Massachusetts ; 7 Cush. 1 ; 10 Allen, 283. 
 See 27 Am. L. Reg. 737. 
 
 But an insurance company is not subro- 
 gated to the rights of a mortgagee who has 
 paid the premiums himself so as to demand 
 an assignment of the mortgage before paying 
 his claim when the buildings were burned ; 2 
 Gray, 216; 8 Hare, 216. 
 
 The doctrine of subrogation does not apply 
 to life insurance ; 25 Conn. 265; 79 N. Y. 
 72. But see 3 Dill. 1 ; 43 Vt. 536. 
 
 In the civil law, whoever paid privileged 
 debts, such, for example, as the funeral ex- 
 penses, had by subrogation the prior claim : 
 Eorum ratio prior est creditorum quorum pe- 
 tunia ad creditores privilegios pervenit. 
 Dig. de reb. anc. jud. pos. 1. 24, § 3. 
 
 So, if during the community of goods aris- 
 ing from the relation of husband and wife an 
 annuity which was due from one of them only 
 was redeemed by the money belonging to 
 both, the other was subrogated plena jure as 
 to that part of the claim ; Pothier, Obi. pt. 
 3, c. l,.ai:t. 6, § 2. 
 
 In the civil law, the consignee of goods 
 who pays freight is said to be subrogated to 
 the rights of the carrier and forwarder ; Cour 
 de Cass. 7 Dec. 1826. The common law does 
 not recognize this right as a subrogation. But 
 see Lien. 
 
 In marshalling assets, where a mortgagee 
 has a lien on two funds, if he satisfy himself 
 out of one which is mortgaged to a junior 
 mortgagee so as to extinguish the fund, the 
 junior mortgagee is subrogated to the other 
 fund; 4Sandf. Ch. 510. 
 
 This right of subrogation is a personal 
 right, but may be assigned ; 3 Penn. 300 ; 
 and the creditors of the surety may claim the 
 benefit of the right ; 8 Penn. 347 ; 10 id. 
 519 ; 22 Miss. 87. As to which of two par- 
 ties liable for the debt shall be subrogated, 
 see 23 Vt. 169. 
 
 Where one is subrogated to a mortgage, it 
 is not necessary that it be assigned to him ; 
 45 Vt. 525 ; though such assignment would 
 only strengthen his position ; 10 Minn. 376. 
 The right of subrogation to a prior encum- 
 brance is sometimes enforced by a court of 
 equity by compelling the holder of it to as- 
 sign it to the party entitled to subrogation ; 
 51 N. Y. 333 ; 61 Penn. 16. 
 
 Sureties of a surety are entitled to the 
 rights by subrogation of their principal ; 5 
 Barb. 398 ; 22 Vt. 274. The creditor need 
 not be made a party to a bill to obtain subro- 
 gation ; 10 Yerg. 310. Consult Domat, Civil 
 
 Law; Guyot, B6pe;t. Univ.; Massfe, Droit 
 Comm.; Dixoa, Subrogation; Sheldon, Sub- 
 rogation. 
 
 SUBSCRIBING WITNESS. One 
 
 who subscribes his name to a writing in order 
 to be able at a future time to prove its due 
 execution. An attesting witness. 
 
 In order to make a good subscribing wit- 
 ness, it is requisite he should sign his name 
 to the instrument himself, at the time of its 
 execution, and at the request or with the as- 
 sent of the party ; 6 Hill, 303 ; 11 U. & W. 
 168; 1 Greenl. Ev. § 569 a; 5 Watts, 399. 
 
 SUBSCRIPTION (Lat. ««6,under, scribo, 
 to write). The placing a signature at the 
 bottom of a written or printed engagement ; 
 or it is the attestation of a witness by so 
 writing his name ; but it has been holden that 
 the attestation of an illiterate witness by 
 making his mark is a sufficient subscription ; 
 7 Bing. 457 ; 2 Ves. Sen. 454; 1 Atk. 177 ; 
 1 Ves. 11 ; 3 P. Wms. 253 ; 1 V. & B. 392. 
 
 The act by which a person contracts, in 
 writing, to furnish a sum of money for a par- 
 ticular purpose : as, a subscription to a chari- 
 table institution, a subscription for a book, 
 for a newspaper, and the like. 
 
 One who subscribes, agreeably to the statute 
 and by-laws of a chartered company, acquires a 
 right to his shares, which is a sufficient consid- 
 eration to make the subscription obligatory on 
 him ; but otherwise, where the organization was 
 not yet effected ; 87 Penn. 332 ; 90 id. 169. The 
 question, how far voluntary subscriptions for 
 charitable objects are binding, is not thoroughly 
 settled. But the rule seems well established that 
 where advances have been made, or liabilities not 
 rashly incurred by others, on the strength of such 
 subscriptions, before notice of withdrawal, they 
 must be held obligatory ; 14 Mass. 173 ; 46 111. 
 377 ; 1 Pars. Con.*453 ; and not otherwise ; 93 
 111. 475 ; see 84 Penn. 388. See Sundat. 
 
 SUBSCRIPTION LIST. A list of sub- 
 scribers to some agreement with each other 
 or a third person. 
 
 The subscription list of a newspaper is an 
 incident to the newspaper, and passes with 
 the sale of the printing materials ; 2 W^atts, 
 lU. 
 
 SUBSID7. In English Law. An aid, 
 tax, or tribute granted by parliament to the 
 king for the urgent occasions of the kingdom, 
 to be levied on every subject of ability, ac- 
 cording to the value of his lands or goods. 
 Jacob, Law Diet. 
 
 In International Law. The assistance 
 given in money by one nation to another to 
 enable it the better to carry on a war, when 
 such nation does not join directly in the war. 
 Vattel, liv. 3, § 82. See Neutrality. 
 
 SUBSTANCE (Lat. sub, under, stare, to 
 stand). That which is essential: it is used 
 in opposition to form. 
 
 It is a general rule that on any issue it is suffi- 
 cient to prove the substance of the issue. For 
 example, in a case where the defendant pleaded 
 payment of the principal sum and all interest due, 
 and it appeared in evidence that a gross sum was 
 paid, not amounting to the full interest, but ac- 
 
SUBSTANTIAL DAMAGES 
 
 68p 
 
 SUCCESSION 
 
 cepted by the plaintiff as full payment, the proof 
 was held to be sufficien*: 2 Stra. 699 : 1 Phill. 
 Ev. 161. • 
 
 SUBSTANTIAL DAMAGES. 
 
 Damages, assessed by the verdict of a jury, 
 which are worth having, as opposed to nomi- 
 nal damages, q. V. ' 
 
 SUBSTITUTE (Lat. subsHtuius]. One 
 placed under another to transact business for 
 him. In letters of attorney, power is gen- 
 rally given to the attorney to nominate and 
 appoint a substitute. 
 
 Without such power, the authority given in one 
 person cannot, in general, be delegated to an- 
 other, because it is a personal trust and confl- 
 dence, and is not, therefore, transmissible. The 
 authority is given to him to exercise his judgment 
 and discretion, and it cannot be said that the 
 trust and confidence reposed in him shall be ex- 
 ercised at the discretion of another ; 3 Atk. 88 ; 
 3 Ves. 645. But an authority may be delegated 
 to another when the attorney has express power 
 to do so ; Bunb. 166 ; T. Jones, 110. See Story, 
 Ag. §§ 13, 14. When a man is drawn into the 
 militia, he may in some cases hire a substitute. 
 
 SUBSTITUTED SERVICE. In Eng- 
 lish Practice. Service of process upon an- 
 other than the person upon whom it should be 
 made, where the latter is impossible. Hunt. 
 Eq. pt. i. ch. 2, § 1 ; Lush. Pr. 867-870. But 
 an order must be obtained from the court to 
 allow of substituted service, the application 
 for which must be supported by affidavit ; 
 Moz. & W. 
 
 SUBSTITUTES. InSootchLaw. 
 Where an estate is settled on a long series of 
 heirs, substituted one after another, in tailzie, 
 the person first called in the tailzies is the 
 institute ; the rest, the heirs of tailzie, or the 
 substitutes. Erkskine, Inst. 3. 8. 8. See 
 Tailzie. 
 
 SUBSTITUTION (Lat. suhstitutio). In 
 Civil Law. The putting of one person in 
 the place of another, so that he may, in de- 
 fault of ability in the former, or after him, 
 have the benefit of a devise or legacy. 
 
 Direct substitution is merely the institution 
 of a second legatee in case the first should be 
 either incapable or unwilling to accept the 
 legacy : for example, if a testator should give 
 to Peter his estate, but in case he cannot 
 legally receive it, or he wilfully refuses it, 
 tlien I give it to Paul. Fidei commissary 
 substitution is that which takes place when 
 the person substituted is not to receive the 
 legacy after the first legatee, and, conse- 
 quently, must receive the thing bequeathed 
 from the hands of the latter : for example, I 
 institute Peter my heir, and I request that at 
 his death he shall deliver my succession to 
 Paul. Merlin, R6pert.; 5 Toullier, 14. See 
 Subrogation. ♦ 
 
 SUBSTRACTION. In French Law. 
 
 The act of taking something fraudulently; it 
 is generally applied to the taking of the goods 
 of the estate of a deceased person fraudu- 
 lently. See ExpiLATiON. 
 
 SUBTERRANEAN WATERS. Sub- 
 
 terranean streams, as distinguished from sub. 
 terranean percolations, are governed by the 
 same rules, and give rise to the same rights 
 and obligations, as flowing surface streams • 25 
 Penn. 628 ; 2 H. & N. 186. But see I^'m 
 & W 374. The owner of the land under 
 which a stream flows, can, therefore, maintain 
 an action for the diversion of it,, if such di- 
 version took place under the same circum- 
 stances as would have enabled him to recover 
 if the stream had been wholly above ground • 
 25 Penn. 528 ; 45 id. 518 ; 5 H. & N. 982 \ 
 
 1 Sawy. 270. But in order to bring subter- 
 ranean streams within the rules governins 
 surface streams, their existence and their 
 course must be, to some extent, known or 
 notorious; 20 Conn. 633; 25 id. 594; 45 
 Penn. 518. Where there is nothing to show 
 that the waters of a spring are supplied by 
 any defined flowing stream, the presumption 
 will be that they have their source in the or- 
 dinary percolations of water through the soil ; 
 42 Cal. 303. As these percolations spread 
 themselves in every direction through the 
 earth, it is impossible to avoid disturbing them 
 without relinquishing the necessary enjoy- 
 ment of the land, the law does not therefore 
 forbid their disturbance ; 79 Penn. 81. See 
 Ang. Waterc. § 109 ; Bainbr. Mines, 85 ; 
 
 2 Am. L. Reg. (n. s.), 65 ; 3 id. 223. As 
 to a prescriptive claim to direct such waters, 
 see 20 Conn. 633 ; 32 Vt. 724. 
 
 SUBTRACTION (Lat. sub., away, traU, 
 to draw). The act of -withholding or detain- 
 ing any thing unlawfully. 
 
 The principle descriptions of this offence are : 
 (1) Subtraction of suit, and service, consistiDg 
 of a withdrawal of fealty, suit of court, rent or 
 customary serriees, from the lord or landlord ; 
 a B. & C. 827. (2) Of titles. (3) Of con- 
 jugal rights. (4) Of legacies, which is the 
 withholding of legacies by an executor. (5) 
 Of church rates, a familiar class of cases in Eng,, 
 land, consisting in the refusal to pay the amount 
 of rate at which any individual parishioner has 
 been assessed for the neceesaiy repairs of the 
 parish church. Brown, Diet. 
 
 SUBTRACTION OF CONJUGAL. 
 RIGHTS. . The act of a husband or wife 
 living separately from the other without a 
 lawful cause. 3 Bla. Com. 94. See Resti- 
 tution OF Conjugal Rights. 
 
 SUCCESSION. In Louisiana. The 
 
 right and transmission of the rights and obli- 
 gations of the deceased to his heirs. The 
 estate, rights, and charges which a person 
 leaves after his death, whether the property 
 exceed the charges or the charges exceed the 
 property, or whether he has left only charges 
 without property. The succession not only 
 includes the rights and obligations of the de- 
 ceased as they exist at the time of his death, 
 but all that has accrued thereto since the open- 
 ing of the succession, as also of the new 
 charges to which it becomes subject. That 
 right by which the heir can take possession 
 of the estate of the deceased, such as it may 
 be. 
 
SUCCESSION DUTY 
 
 681 SUGGESTIVE INTERROGATION 
 
 Irregular succession is that which is esta- 
 blished by law in favor of certain persons or 
 of the state in default of heirs either legal or 
 instituted by testament. 
 
 Legal succession is that which is esta- 
 blished in favor of the nearest relations of the 
 deceased. 
 
 Testamentary succession is that which re- 
 sults from the constitution of the heir, con- 
 tained in a testament executed in the form 
 prescribed by law. See Heir ; Descent ; 
 Pothier, des Successions ; TouUicr, 1. 8, tit. 1. 
 
 In Common Law. The mode by which 
 one set of persons, members of a corporation 
 awregate, acquire the rights of another set 
 which preceded them. This term in strict- 
 ness is to be applied only to such corpora- 
 tions ; 2 Bla. Com. 430. 
 
 SUCCESSION DUTY. A duty payable 
 under the Succession Duties Act of 16 & 17 
 Vict. u. 51, amended by 22 & 23 Vict. c. 21, 
 upon succession to property. It is of the na- 
 ture of the collateral inheritance tax of Penn- 
 sylvania, and like the English legacy duty, is 
 levied at the rate of from one to ten per cent., 
 according as the successor is more or less 
 nearly related to the decedent. See Brown, 
 Diet. 
 
 SUCCESSOR. One who follows or comes 
 into the place of another. 
 
 This term Is applied more particularly to a 
 60le corporation, or to any corporation. The 
 word heir is more correctly applicable to a com- 
 mon person who takes an estate by descent. 13 
 Picls. 322 ; Co. Litt. 8 b. 
 
 A person who has been appointed or elected 
 to some office after another person. 
 
 SUCKEN, SUCHBN. In Scotch Law. 
 The whole lands restricted to a mill, — that 
 is, whose tenants are bound to grind there. 
 The possessors of these lands are called suck- 
 eners. Bell, Diet. 
 
 SUE. To commence or continue legal 
 proceedings for the recovery of a right. See 
 Action ; Suit. 
 
 SUFFRAGAN. (L. Lat. suffraganeus). 
 A titular bishop ordained to assist the bishop 
 of the diocese in his spiritual functions, or to 
 take his place. The number was limited to 
 two to each bishop by 26 Hen. VIII. c. 14, 
 So called because by his suffrage ecclesiasti- 
 cal causes were to be judged. T. L. 
 
 SUFFRAGE. Vote ; the act of voting. 
 
 Participation in the suffrage is not of right, 
 but it is granted by the state on a consideration 
 of what is most for the interest of the state ; 
 Cooley, Const. 237; 1 Mac Arthur, 169; 11 
 Blatcn. 200. The grant of suffrage makes it 
 a legal right until it is recalled, and it is pro- 
 tected by the law as property is. The states 
 establish rules of suffrage except as shown be- 
 low. Suffrage is never a necessary accompa^ 
 niment of state citizenship, and the great 
 majority of citizens are always excluded from 
 it- On the other hand, suffraj^e is sometimes 
 given to those who are not citizens ; as has 
 
 been done by no less than twelve of the states, 
 in admitting persons to vote, who, being aliens, 
 have merely declared their intentions to be- 
 come citizens. 
 
 By the constitution of the United States 
 the qualifications for electors of members of 
 the house of representatives are to be the 
 same as those for the most numerous branch 
 of the state legislature. The fifteenth amend- 
 ment provides that "the right of citizens of 
 the United States to vote shall not be denied 
 or abridged by the United States, or by any 
 state, on account of race, color, or previous 
 condition of servitude." The fourteenth 
 amendment was intended mainly to effect the 
 same object by a voluntary action on the 
 part of the state, but was practically super- 
 seded by the fifteenth amendment. 
 
 It has been said that the constitution of the 
 United States confers the right to vote upon 
 no one. That right comes to the citizens of 
 the United States when they possess it at all, 
 under state laws. But the fifteenth amend- 
 ment confers upon them a new exemption : 
 from discrimination in elections on account of 
 race, color, or previous condition of servitude ; 
 92 U. S. 214, 542 ; see Cooley, Const. 266. 
 In Connecticut suffrage is denied to all who 
 cannot read ; in Massachusetts and Missouri 
 to all who cannot both read and write, and 
 many of the states admit no one to the right 
 of suffrage unless he is a tax-payer. See 
 Election. 
 
 SUGGESTIO FALSI (Lat.). A state- 
 ment of a falsehood. This amounts to a 
 fraud whenever the party making it was 
 bound to disclose the truth. 
 
 The following is an example of a case where 
 chancery wUl interfere and set aside a contract 
 as fraudulent, on account of the snggestio falsi : 
 a purchaser applied to the seller to purchase a 
 lot of wild land, and represented to him it was 
 worth nothing, except for a sheep pasture, when 
 he knew there was a valuable mine on the lot, of 
 which the seller was ignorant. The sale was set 
 aside ; 2 Paige, Ch. 390. See Concealment ; 
 
 MiSKEPKESENTATION ; RBPKBSBNTATION ; SUP- 
 PKESSIO VeRI. 
 
 SUGGESTION. In Practice- Informa- 
 tion. It is applied to those cases where dur- 
 ing the pendency of a suit some matter of fact 
 occurs which puts a stop to the suit in its ex- 
 isting form, such as death or insolvency of a 
 party; the counsel of the other party an- 
 nounces the fact in court or enters it upon the 
 record : the fact is' usually admitted, if true, 
 and the court issues the proper order there- 
 upon. See 2 Sell. Pr. 191. 
 
 In wills, when suggestions are made to a 
 testator for the purpose of procuring a device 
 of his property in a particular way, and 
 when such suggestions are false, they gene- 
 rally amount to a fraud. Bacon, Abr. Wills 
 (G 3) ; 5 TouUier, n. 706. 
 
 SUGGESTIVE INTERROGATION. 
 A phrase which has been used by some writers 
 to signify the same thing as leading question. 
 2 Bentham, Ev. b. 3, c. 3. It is used in the 
 French law. 
 
SUI JURIS 
 
 682 
 
 SUICIDE 
 
 SUI JURIS (Lat. of his own right). 
 Possessing all the rights to which a freeman 
 is entitled ; not being under the power of 
 another, as a slave, a minor, and the like. 
 
 To make a valid contract, a person must, 
 in general, be sui juris. Every one of full 
 age is presumed to be «m juris ; Story, Ag. 10. 
 
 SUICIDE (Lat. suus, himself, coedere, to 
 kill). In Medical Jxurisprudence. Self- 
 destruction. 
 
 This was once regarded by the common law as 
 exclusively a felonious act : of late, however, it 
 has been often treated as the result of insanity, 
 to be followed by all the legal consequences of 
 that disease, so far as it is practicable. That 
 suicide may be committed by a person in the full 
 enjoyment of his reason, there can be no doubt ; 
 nor can there be any doubt that it is often the 
 result of unquestionable insanity. Between the 
 two kinds of suicide here indicated, the medical 
 jurist is obliged to discriminate, and in perform- 
 ing this duty the facts on the subject should be 
 carefully considered. 
 
 The instinct of self-preservation is not so strong 
 as to prevent men entirely from being tired of 
 life and seelcing their own destruction. They 
 may have exhausted all their sources of enjoy- 
 ment, their plans of business or of honor may 
 have been frustrated, poverty or dishonor may 
 be staring them in the face, the difficulties before 
 them may seem utterly insurmountable, and, for 
 some reason like these, they calmly and deliber- 
 ately resolve to avoid the evil by ending their 
 life. The act may be unwise and presumptuous, 
 but there is in it no element of disease. On the 
 other hand, it is, well known that suicidal desires 
 are a very common trait of insanity, — that a large 
 proportion of the insane attempt or meditate self- 
 destruction. It maybe prompted by a particular 
 delusion, or by a sense of irresistible necessity. It 
 may be manifested in the shape of a well-consid- 
 ered, persistent intention to seize upon the first op- 
 portunity to terminate life, or of ablind, automatic 
 Impulse acting without much regard to means 
 or circumstances. As the disease gives way and 
 reason is restored, this propensity disappears, 
 and the love of life returns. 
 
 Besides these two forms of the suicidal propen- 
 sity, there are other phases which cannot be re- 
 ferred with any degree of certainty to either of 
 them. Persons, for instance, in the enjoyment 
 of everything calculated to make life happy, and 
 exhibiting no sign of mental disease, deliberately 
 end their days. Another class, on approaching 
 a precipice or a body of water, are seized with a 
 desire, which may be irresistible, to take the fatal 
 plunge. Many are the cases of children who, 
 after some mild reproof, or slight contradiction, 
 or trivial disappointment, have gone at once to 
 some retired place and taken their lives. Now, 
 we are as little prepared to refer all such cases to 
 mental disease as we are to free voluntary choice. 
 JEvery case, therefore, must be judged by the cir- 
 cumstances accompanying it, always allowing 
 the benefit of the doubt to be given to the side of 
 humanity and justice. 
 
 By the common law, suicide was treated as 
 a crime, and the person forfeited all chattels 
 real or personal, and various other property. 
 4 Bla. Com. 190. This result can be avoided 
 by establishing the insanity of the party ; and 
 in England, of late years, courts have favored 
 this course whenever the legal effect of suicide 
 would operate as a punishment. On the 
 otherhand, where the rights and interests of 
 
 other parties are involved, the question of in- 
 sanity is more closely scrutinized ; and ample 
 proof is required of the party on whom the 
 burden of proof lies. 
 
 In regard to wills made just before com- 
 mitting suicide, the prevalent doctrine on 
 this point, both in the United States and in 
 England, is that the act of self-destruction 
 may not necessarily imply insanity, and that 
 if the will is a rational act, rationally done, 
 the sanity of the testator is established ; 7 
 Pick. 94; 1 Hagg. Eccl. 109: 2 Harr. Del. 
 583; 2 Eccl. 415. 
 
 In regard to life-insurance, it is the law of 
 England, at present, that in every case of 
 intentional suicide, whatever may have been 
 the mental condition, the policy becomes void ; 
 3 Mann. & G. 437 ; 6 id. 639 ; 38 L. J. n. s. 
 Ch. 53. In Stormont vs. Ins. Co., 1 F. & F. 
 Nisi Prius, 22, the court told the jury the 
 question was, did the assured know he was 
 throwing himself out of the window? If he 
 did, no recovery could be had under the 
 policy. Otherwise, if he did not. Such ap- 
 pears to be the rule in Ohio, Maryland, and 
 Massachusetts ; 4 Ins. L. J. 159 ; 4 Allen, 
 96; 42Md. 414; 102 Mass. 227; and it is 
 said, in Germany, Holland, and France; 
 6 Ins. L. J. 719; May Ins. § 812. But, 
 although it has been a much vexed ques- 
 tion, the American cases geiierally con- 
 strue the phrases "die by his own hand," 
 "commit suicide," or, "die by suicide," as 
 including only criminal acts of self-destruc- 
 tion, and not extending to acts not under the 
 control of the will ; 54 Me. 224 ; 4 Seld. (N. 
 Y.) 299; 15 Wall. 580; 7 Heisk. 567; s. 
 C. 19 Am. Kep. 623 ; Monograph on the 
 Law of Suicidein Life Ins., by William Shrady, 
 N. Y. 1869. But the Supreme Court of the 
 United* States has decided that a condition in 
 the policy that it shall be void if the insured 
 should die by suicide, "sane or insane," 
 avoids the policy, notwithstanding he was of 
 unsound mind and wholly unconscious of the 
 act; Bigelow vs. Berkshire L. Ins. Co., 93/ 
 U. S. 284. It has been said that the ques- 
 tion is not precisely whether a party is insane 
 or not, but whether he understood the physi- 
 cal nature and consequences of his act, and 
 had sufficient will to make the act voluntary ; 
 10 Am. L. Keg. n. s. 101, 679. See Whar- 
 ton, Mental Unsoundness ; Phill. Ins. 
 
 In cases of persons found dead, the cause 
 may not be always perfectly obvious, and it 
 becomes necessary to determine whether 
 death was an act of suicide, or murder. This 
 is often one of the most difficult questions in 
 the whole range of medical jurisprudence, 
 requiring for its solution the most profound 
 knowledge of surgery and physiology, and 
 great practical sagacity. In case of death 
 caused by wounds, the kind and situation of 
 the weapon, the extent, direction, and situa- 
 tion of the wounds, their connection with 
 marks of blows, the temper and disposition 
 of the person, all these and many other cir- 
 cumstances must be carefully and intelligently 
 
SUIT 
 
 SUMMONS AND ORDER 
 
 investigated. The frequency with which cases 
 of suicide strongly resemble, in their external 
 characters, those of murder, renders neces- 
 sary tlie highest degree of skill and careful 
 discrimination. If "one counsels another to 
 commit suicide, and is present at the con- 
 summation of the act, it is murder in the prin- 
 cipal ; 13 Mass. 359 ; Russ. & R. 528. See 
 Fblo de se. 
 
 SUIT (L. Lat. secta ; from Lat. sequi, to 
 follow. French, suite). In Practice. An 
 action. 
 
 The word suit in the twenty-flfth section of the 
 Judiciary Act of 1789 applies to any proceeding 
 in a court of justice in which the plaintiff pur- 
 sues in such court the remedy which the law 
 affords him. An application for a prohibition is, 
 therefore, a suit ; a Pet. 449. According to the 
 Code of Practice of Louisiana, art. 96, a suit is 
 a real, personal or mixed demand made before a 
 competent judge, by which the parties pray to 
 obtain their rights and a decision of their dis- 
 putes. In that acceptation, the words suit, pro- 
 cess, and cause are in that state almost synony- 
 mous. See Sbota ; Steph. PI. 437 ; 3 Bla. Com. 
 395 ; 1 Chitty, PI. 399 ; Wood, Civ. Law, b. 4, p. 
 315 ; 4 Mass. 263 ; 18 Johns. 14 ; 4 Watts, 154 ; 3 
 Story, Const. § 1719. In its most extended sense- 
 the word suit includes not only a civil action 
 but also a criminal prosecution, as, indictment! 
 information, and a conviction by a magistrate ; 
 Hamm. N. P. 270. Suit is applied to proceed- 
 ings in chancery as well as in law ; 1 Sm. Ch. 
 Dec. 36, 27; and is, therefore, more general than 
 action, which is almost exclusively applied to 
 matters of law ; 10 Paige, Ch. 516. But Actions 
 is a title in the United States Equity Digest. 
 
 The witnesses or followers of the plaintiff. 
 3 Bla. Com. 295. See Secta. 
 
 Suit of court, an attendance which a tenant 
 owes to his lord's court. Cowel, Gloss.; 
 Jacob, Law Diet. 4. 
 
 Suit covenant, where one has covenanted 
 to do suit and service in his lord's court. 
 
 Suit custom, where service is owed time 
 out of mind. 
 
 Suithold, a tenure in consideration of cer- 
 tain services to the superior lord. 
 
 The following one in chase : as, fresh suit. 
 
 A petition to a king, or a great person, or 
 a court. 
 
 SUIT SILVER. A small sum of money 
 paid in lieu of attendance at the court barons. 
 (Cowel. 
 
 SUITE (French). Those persons who by 
 his authority follow or attend an ambassador 
 or other public minister. 
 
 In general, the suite of a minister are pro- 
 tected from arrest, and the inviolability of his 
 person is communicated to those who form 
 liis suite; Vattel, lib. 4, c. 9, § 120. See 
 iDalL 177; Baldw. 240; Ambassador. 
 
 SUITOR. One who is a party to a suit 
 or action in court. One who is a party to an 
 action. In its ancient sense, suito^i" toeant 
 one who was bound to attend the county 
 court ; also one who formed part of the 
 lecta. 
 
 SUITORS' 
 In England. 
 
 FUND IN CHANCERY. 
 
 A fund consisting of moneys 
 
 which, having been paid into the court of chan- 
 cery, are placed out for the benefit and better 
 security of the suitors, including interest from 
 the same. By stat. 32 & 33 Vict. c. 91, sec. 
 4, the principal of this fund, amounting to 
 over £3,000,000, was transferred to the com- 
 missioners for the reduction of the national 
 debt. Moz. & W. 
 
 SUMMARV ACTIONS. In Scotch 
 Lavr. Those which are brought into court 
 not by summons, but by petition, correspond- 
 ing to summary proceedings in English 
 courts. Bell ; Brown. 
 
 SUMMARY PROCEEDING. A form 
 of trial in which the ancient established 
 course of legal proceedings is disregarded, 
 especially in the matter of trial by jury, and, 
 in the case of the heavier crimes, presentment 
 by a grand jury. See 8 Gray, 329. 
 
 In no case can the party be tried sum- 
 marily unless when such proceedings are 
 authorized by legislative authority, except 
 perhaps in cases of contempts ; for the com- 
 mon law is a stranger to such a mode of trial ; 
 4 Blackstoue, Coram. 280. See 2 Kent, 73 ; 
 2 Conn. 819 ; 4 id. 535 ; 37 Me. 172 ; 4 Hill, 
 N. y. 145 ; 8 Gray, 329 ; 4 Dev. 15 ; 10 
 Yerg. 59. 
 
 The term summary proceedings is applied 
 to proceedings under statutes for enabling 
 landlords to promptly dispossess tenants who 
 hold over after default in payment of rent, 
 or after expiration of the term. 
 
 SUMMING UP. In Practice. The 
 
 act of making a speech before a court and 
 jury, after all the evidence has been heard, 
 in favor of one of the parties in the cause, is 
 called summing up. When the judge delivers 
 his charge to the jury, he usually sums up 
 the evidence in the case. 6 Hargr. St. Tr. 
 832 ; 1 Chitty, Cr. Law, 632. See Charge ; 
 Opening and Closing. 
 
 SUMMON. In Practice. To notify the 
 defendant that an action has been instituted 
 against him, and that he is required to answer 
 to it at a time and place named. This is 
 done by a proper officer's either giving the 
 defendant a copy of the summons, or leaving it 
 at his house, or by reading the summons to 
 him. 
 
 SUMMONERS. Petty officers who cite 
 men to appear in any court. 
 
 SUMMONS. In Practice. The name 
 of a writ commanding the sheriff, or other 
 authorized officer, to notify a p^rty to appear 
 in court to answer a complaint made against 
 him and in the said writ specified, on a day 
 therein mentioned. Viner, Abr. Summons; 
 2 Sell. Pr. 356 ; 3 Bla. Com. 279. 
 
 SUMMONS AND ORDER, fn English 
 Practice. In this phrase the summons is the 
 application to a common law judge at cham- 
 bers in reference to a pending action, and upon 
 it the judge or master makes the order. Moz. 
 &W. 
 
SUMMONS ANI) SEVERANCE 684 
 
 SUNDAY 
 
 SUMMONS AND SEVERANCE. 
 
 See Severance. 
 
 S0MMTJM JUS (Lat.). Extreme right, 
 strict right. See Maxims, Summumjus, etc. 
 
 SUMPTUARY LAWS. Laws relating 
 to the expenses of the people, and made to 
 restrain excess in apparel, food, furniture, etc. 
 
 They originated in the view that luxury is, in 
 some of its degrees, opposed to public policy, and 
 that tlie state is bound to interfere against it. 
 Montesquieu, Esprit des Lois, b. 7, c. 2, 4, *nd 
 Tacitus, Ann. h. 2, ch. 33, b. 3, ch. 52. 
 
 In England, in 1336, it was enacted, 10 Edw. 
 III. c. 3, that inasmuch as many mischiefs had 
 happened to the people of the realm by excessive 
 and costly meats, by which, among other things, 
 many who aspired in this respect beyond their 
 means were impoverished and unable to aid them- 
 selves or their liege lord in time of need, all men 
 were forbidden to have served more than two 
 courses at a meal, each of but two sorts of vict- 
 ual, except on the principal feasts of the year, 
 and then only three courses were allowed. Black- 
 stone states that this is still unrepealed. 4 Com. 
 170. Subsequent statutes — that of 1363, and those 
 of 1463 andl482 — regulated the dress, and to Some 
 extent the diet, of the people, with careful re- 
 gard to their rank. The substance of these stat- 
 utes will be found in Knight's History of Eng- 
 land, vol. 2, pp. 272-274. They were repealed 
 by 1 Jac. I. e. 25. 
 
 In modem times legislation is not resorted to 
 in respect to this object ; but the subject is fre- 
 quently discussed in connection with the laws 
 for the prevention or punishment of intemper- 
 ance, which is so direct and fruitful a source of 
 crime. 
 
 SUNDAY. The first day of the week. 
 In some of the New England states it begins 
 at sunset on Saturday, and ends at the same 
 time the next day. But in other parts of the 
 United States it generally commences at 
 twelve o'clock on the night between Saturday 
 and Sunday, and ends in twenty-four hours 
 thereafter ; 6 Gill & J. 268. See, on this 
 point, 4 Strobh. 493 (a very learned case) ; 
 37 Mo. 466; 39 Me. 193; 3 Cush. 137. The 
 Sabbath, the Lord's day, and Sunday, all 
 mean the same thing ; 6 Gill & J. 268. See 
 6 Watts, 231. 
 
 The Stat. 5 and 6 Edw. V. c. 8 (1552), 
 enacted that Sunday should be strictly ob- 
 served as a holy day, provided that in case of 
 necessity it should be lawful to labor, ride, 
 fish, or work at any kind of work. The Book 
 of Sports (1618) declared that, after divine 
 service, the people .should not be disturbed 
 from any lawful recreation. The stat. 29 
 i Car. II. c. 7, provided that no tradesman, 
 artificer, workman, laborer, or other person 
 whatsoever, should exercise any worldly busi- 
 ness, etc., upon the Lord's day, works of 
 necessity and charity alone excepted. It also 
 forbade the execution of legal process on that 
 day. This has been followed substantially in 
 America, with a tendency to greater strictness. 
 This includes all business, public or private, 
 done in the ordinary calling of the person ; 5 
 B. & C. 406 ; ordinary calling means that 
 which the ordinary duties of the calling bring 
 into continued action ; 7B. &C. 596; 55 Ga. 
 
 245. Many statutes except those who oh- 
 serve the seventh day ; others do not ; and 
 such legislation is constitutional ; 52 Penn 
 126 ; 69 N. Y. 657 ; 122 Mass. 40. Cases of 
 necessity are determined' by the moral fitness 
 of the work ; 84 Penn. 409. Charity includes 
 everything which proceeds from a sense of 
 moral duty, or a feeling of kindness and hu- 
 manity, and is intended wholly for the com- 
 fort and relief of another, and not for one's 
 own pleasure and benefit; 118 Mass. 197. 
 Necessity may arise out of particular occupa- 
 tions ; 23 How. 219; 14 Wall. 494; but not 
 when it is a work of mere convenience or 
 profit ; 97 Mass. 404 ; 30 Ind. 476. Running 
 street railways on Sunday is illegal ; 54 Penn. 
 401 ; contra, 26 Alb. L. J. 56 (N. Y. Ct. of 
 App.); 72 N.Y. 196; 14 Keptr. 364 (Ky. 
 Ct. of App.) ; and see 55 Ga. 126. When 
 statutes forbid travelling on Sunday, there can 
 be no recovery for injuries from defective 
 streets; 117 Mass. 64; 51 Me. 423; 47 Vt. 
 32 ; but see 89 Wise. 21 ; unless the party was 
 travelling from motives of necessity oreharity ; 
 121 Mass. 301; or walking for exercise; 65 
 Me. 84. But in actions for torts against in- 
 dividuals or common carriers, it is no defence 
 that the injury occurred upon Sunday; 26 
 Penn. 342 ; 48 Iowa, 652; contra, 124 Mass. 
 887. 
 
 Except as to judicial acts, which are void 
 when done on Sunday ; 1 W. Black. 626 ; 
 see Dies non ; the common law makes 
 no distinction between Sunday and any 
 other day. The English cases decided after 
 the act of Charles II., supra, merely avoided 
 contracts made in pursuance of one's ordi- 
 nary calling; see 1 Taunt. 131 ; 1 Cr. & J. 
 180; 81 Barb. 41; 44 id. 618; 4 M. & 
 W. 270 ; but in most of the states contracts 
 made on Sunday are invalid ; see 36 Me. 
 143 : 19 Vt. 358; 6 Watts, 231 ; 8 Wise. 
 843. In New York any business but judicial 
 maybe done on' Sunday; 44 Barb. 618. 
 Generally speaking executory contracts made 
 on Sunday will not be enforced, while exe- 
 cuted contracts will not be disturbed; 78 
 Penn. 473 ; 105 Mass. 399 ; 57 Ga. 179 ; but 
 see 2 Ohio St. 388 ; 13 Kans. 629, as to ex- 
 ecutory contracts ; delivery on Sunday passes 
 title against the vendor; 26 Cal. 614; 13 
 Ind. 208 ; but see 12 Mich. 878 ; a church 
 subscription on Sunday is valid in Pennsyl- 
 vania, 12 Reptr. 665 ; and Michigan, 21 Alb. 
 L. J. 298; see 62 Ind. 366. A contract 
 dated on Sunday may be shown to be errone- 
 ously dated ; 97 Mass. 166; and it may be 
 shown that a contract bearing a secular date 
 was actually dated on Sunday ; 48 Me. 198 ; 
 but not against a bona fide holder without 
 notice; 48 Iowa, 228. When a contract 
 takes effect on delivery, the date is not 
 material; 6 Bush, 185; 43 Iowa, 297; and 
 a note executed on Sunday but delivered 
 on another day is valid ; 24 Vt. 189 ; 35 
 Me. 143 ; a contract made on Sunday 
 may be ratified; 7 Gray, 164; 24 vt, 
 817 ; but see 11 Ala. 885 ; a will executed on 
 
SUPER ALTUM MARE 
 
 685 
 
 SUPERONERATIO 
 
 Sunday is valid; 9 Allen, 118; 1 Am. L. 
 KeT. 750 (N. H,)- A contract for an adver- 
 tisement in a Sunday paper is invalid ; 24 
 N. Y. 353 ; contra, 52 Mo. 474. Laws re- 
 quiring all persons to refrain from their ordi- 
 nary callings on Sunday have been held not to 
 encroach on the religious liberty of the people ; 
 Coolcy, Const. Lira. 784 ; they may be sus- 
 tained as police regulations ; 8 Penn. 312 ^ 33 
 Mich. 279 ; 40 Ala. 725. 
 
 No one is bound to do work in performance 
 of his contract on Sunday, unless the work 
 by its very nature or by express agreement 
 is to be done on that day and can be then 
 done without a breach of law ; 18 Conn. 181; 
 6 Johns. 326 ; 10 Ohio, 426 ; 7 Blackf. 479. 
 
 Sundays are computed in the time allowed 
 for the performance of an act ; 10 M. & W. 
 331 ; but if the last day happen to be a Sun- 
 day, it is to be excluded, and the act must, in 
 jreneral, be performed on Monday ; 3 Penn. 
 E. 201 ; 3 Chitty, Pr. 110. Notes and bills, 
 when they fall due on Sunday, are payable 
 on Saturday. See, as to the origin of keep- 
 ing Sunday as a holiday, Neale, F. & F. ; 
 Story, Pr. Notes, 8 220 ; Story, Bills, 
 § 233 ; Pars. Notes & Bills. See, generally, 
 17 Am. L. Reg. n. s. 285 ; 3 Rep. Am. Bar 
 Association (1880) ; 2 Am. L. Rev. 226 ; 
 44 Barb. 618; 21 Alb. L. J. 424 (Sabbath 
 breaking); 28 Am. L. Reg. 137, 209, 273; 
 32 Am. Rep. 557; 30 id. 417; 17 id. 122 
 (legality of labor on Sunday) ; 3 id. 371, n.; 
 4 Strobh. 493 ; 54 Penn. 401 ; 19 Vt. 358 ; 
 3 Cr. L. Mag. 632 (Sabbath-breaking ; works 
 of necessity). The Massachusetts law on this 
 subject depends more on its peculiar legisla- 
 tion and customs than any general principles 
 of justice or law ; 23 How. 209. 
 
 As to execution of legal process on Sunday, 
 see Dies non. 
 
 SUPER ALTUM MARE (Lat.). Upon 
 the high sea. See High Seas. 
 
 SUPER VISUM CORPORIS (Lat.). 
 Upon view of the body. When an inquest is 
 held over a body found dead, it must be super 
 visum corporis. See Coroner ; Inquest. 
 
 SUPERCARGO. In Maritime Law. 
 
 A person specially employed by the owner 
 of a cargo to take charge of and sell to the 
 best advantage merchandise which has been 
 shipped, and to purchasejeturning cargoes and 
 to receive freight, as he may be authorized. 
 
 Supercargoes have complete control over 
 the cargo and every thing which immediately 
 concerns it, unless their authority is either 
 expressly or impliedly restrained ; 1 2 East, 
 381. Under certain circumstances they are 
 responsible for the cargo ; 4 Mass. 115 ; see 1 
 Gill & J. 1 ; but the supercargo has no power 
 to interfere with the government of the ship ; 
 3 Pardessus, u. 646. 
 
 SUPERFICIARIUS (Lat.). In CivU 
 Law. He who has built upon the soil of 
 another, which he has hired for a number of 
 years or forever, yielding a yearly rent. This 
 
 is not very different from the owner of a lot on 
 ground-rent in Pennsylvania. Dig. 43. 18. 1. 
 
 SUPERFICIES (Lat.). In Civil Law. 
 Whatever has been erected on the soil. 
 
 SUPBRPCETATION. The conception 
 of a second embryo during the gestation of the 
 first, or the conception of a child by a woman 
 already pregnant with another, during the 
 time of such pregnancy. 
 
 This doctrine, though doubted, seems to be 
 established by numerous cases ; 1 Beck, Med. 
 Jur. 193; Cassan, Superfoetation ; New York 
 Medical Repository; 1 Briand, M6d. Lfe. 
 prem. partie, c. 3, art. 4 ; 1 Foder6, M6a. 
 L6g. § 299 ; Buffon, Hist. Nat. de 1' Homme, 
 PuberU. 
 
 SUPERINSTITUTION. The institu- 
 tion of one upon another, as where two per- 
 sons are admitted and are instituted to the same 
 benefice, under adverse titles. Cowel. 
 
 SUPERIOR. One who has a right to 
 command ; one who holds a superior rank : 
 as, a soldier is bound to obey his superior. 
 
 In estates, some are superior to others : an 
 estate entitled to a servitude or easement over 
 another estate is called the superior or domi- 
 nant, and the other the inferior or servient 
 estate. 1 Bouvier, Inst. u. 1612. 
 
 SUPERIOR COURT. A term applied 
 collectively to the three courts of common 
 law at Westminster : namely, the king's 
 bench, the common pleas, the exchequer ; and 
 so in Ireland. 
 
 It denotes a court of intermediate jurisdic- 
 tion between the courts of inferior or limited 
 jurisdiction and the courts of last resort. 
 
 In American Law. A court of interme- 
 diate jurisdiction between the inferior courts 
 and those of last resort. Such courts exist 
 in Connecticut, Delaware, Georgia, Massa- 
 chusetts, and North Carolina, exercising a 
 jurisdiction throughout the entire state. 
 
 In Delaware it is the court of last resort ; 
 and in some of the states there is a superior 
 court for cities. 
 
 SUPER-JURARE. A term anciently 
 used, when a criminal, who tried to excuse 
 himself by his own oath or that of one or two 
 witnesses, was convicted by the oaths of many 
 more witnesses. Moz. & W. 
 
 SUPERNUMERARII (Lat.). In Ro- 
 man Law. Those advocates who were not 
 statuti, which title see. 
 
 The statuti were inscribed in the matriculation 
 books, and formed a part of the college of advo- 
 cates in each jurisdiction. The supernume- 
 raries were not attached to any bar in particular, 
 and could reside where they pleased : they took 
 the place of advocates by title as vacancies oc- 
 curred in that body. 
 
 SUPERONERATIO (L. Lat. supero- 
 nerare). Surcharging a common: i.e. put- 
 ting in beasts of a number or kind other than 
 the right of common allows. It can only be 
 of a common appendant or appurtenant. 
 Bracton, 229, and Fleta, lib. 4, c. 23, § 4, 
 give two remedies, novel disseisin and writ 
 
SUPERSEDEAS 
 
 686 SUPERVISORS OF ELECTION 
 
 of admeasurement, by which latter remedy no 
 damages are recovered till the second offence. 
 Now, distraining, trespass, and case are used 
 as remedies. 3 Sharsw. Bla. Com. 238*. 
 
 SUPERSIiDEAS (Lat. that you set 
 aside). In Practice. The name of a writ 
 containing a command to stay the proceedings 
 at law. 
 
 It is granted on good cause shown that the 
 party ought not to proceed ; Fitzh. N. B. 
 236. There are some writs which, though 
 they do not bear this name, have the effect 
 to supersede the proceedings : namely, a writ 
 of error when bail is entered operates as a 
 supersedeas ; and a writ of certiorari to re- 
 move the proceedings of an inferior into a 
 superior court has, in general, the same effect ; 
 8 Mod. 373; 6 Binn. 461. But, under spe- 
 cial circumstances, the certiorari has not the 
 effect to stay the proceedings, particularly 
 where summary proceedings, as to obtain pos- 
 session under the landlord and tenant law, 
 are given by statute ; 6 Binn. 460. See 
 Bacon, Abr. ; Comyns, Dig. ; Yelv. 6, n. 
 
 SUPERSTITIOUS USE. In EngUsh 
 Iiaw. When lands, tenements, rents, goods, 
 or chattels are given, secured, or appointed 
 for and toward the maint^ance of a priest or 
 chaplain to say mass ; for the maintenance of 
 a priest or other man to pray for the soul of 
 any dead man in such a church or elsewhere ; 
 to have and maintain perpetual obits, lamps, 
 torches, etc. to be used at certain times to help 
 to save the souls of men out of purgatory ; in 
 such case? the king, by force of several sta- 
 tutes, is authorized to direct and appoint all 
 such uses to such purposes as are truly chari- 
 table ; Bacon, Abr. Charitable Uses and 
 Mortmain (D) ; Duke, Char. Uses, 105 ; 6 
 Ves. 567 ; 4 Co 104. 
 
 In the United States, where* all religious 
 opinions are free and the right to exercise 
 them is secured to the people, a bequest to 
 support a Catholic priest, and perhaps certain 
 other uses in England, would not be consi- 
 dered as superstitious uses ; 1 Penn, 49 ; 8 
 Penn. 327; 17 S. & R. 378; 1 Wash. 
 C. C. 224. Yet many of the superstitious 
 uses of the English law would fail to be con- 
 sidered as chanties, and would undoubtedly 
 come under the prohibition against perpe- 
 tuities. See Charities; Charitable 
 Uses ; 1 Jar. Wills, ch. ix. In England, 
 there are three classes of persons who have 
 been held obnoxious to the law against super- 
 stitious uses: 1. Roman Catholics. 2. Pro- 
 testant dissenters. 3. Jews. Their various 
 disabilities have been almost wholly removed, 
 and Catholics and Jews have been put on 
 the same footing as Protestant dissenters 
 in reference to their schools and places of 
 religious worship ; a bequest, however, for 
 masses for deceased persons is held to be 
 superstitious in England, but not in Ireland ; 
 Moz. & W. 
 
 SUPERVISOR. An overseer; a sur- 
 veyor. 
 
 An officer whose duty it is to take care of 
 the highways. 
 
 The chief officer of a town or organized 
 township in the states of Michigan, Illinois, 
 Wisconsin, and Iowa. He has various duties 
 assigned him by the statutes as a town officer 
 and likewise represents his town in the general 
 assembly, or county board of supervisors. See 
 Board of Supervisors. 
 
 SUPERVISORS OP ELECTION. 
 
 Persons appointed and commissioned by the 
 judge of the circuit court of the United States 
 in cities or towns of over 20,000 inhabitants 
 upon the written application of two citizens, 
 or in any county or parish of any congres- 
 sional district upon that of ten citizens, to 
 attend at all times and places fixed for the 
 registration of voters for representatives and 
 delegates in congress, and supervise the regis- 
 try and mark the list of voters in such man- 
 ner as will in their judgment detect and ex- 
 pose the improper removal or addition of any 
 name. Supervisors of elections are further 
 required to attend at all times and places for 
 holding elections of representatives and dele- 
 gates in congress and Tor counting the votes 
 cast at such elections ; to challenge any vote 
 offered by any person whose legal qualifica- 
 tions are in doubt ; to remain at the polling 
 places during the progress of the voting, to 
 scrutinize the manner in which it is done, and 
 the way in which the poll-books, registry 
 lists and tables are kept, whether the same are 
 required by any law of the United States, or 
 of any state, territorial, or municipal law. 
 They are required also personally to scruti- 
 nize, count, and canvass each ballot cast, and 
 to forward such returns to the chief super- 
 visor of the judicial district as he may require. 
 It is the duty of the United States marshal 
 and his deputies to support and protect super- 
 visors in the discharge of their duties by mak- 
 ing arrests as the circumstances may require, 
 either with or without process, and in the 
 absence of the deputies the supervisors may 
 make arrests on their own authority. 
 
 Two supervisors are appointed for each 
 election district or voting precinct. They 
 must be of different political parties, and he 
 able to read and write .the English language. 
 
 In the event of the absence or inability of 
 the circuit judge, he may designate a district 
 judge to appoint supervisors of election ; E. 
 S. §§ 2011-2031. 
 
 In case a question arises in respect to what 
 political organization should be recognized by 
 the court in appointing supervisors, the rule is 
 that the body which was recognized by the 
 last state convention of the party is entitled 
 to be considered as its representative organi- 
 zation ; subject, however, to modification by 
 change of circumstances ; 9 Fed. Rep. 14. 
 
 The legislation of congress in vesting the ap- 
 pointment of supervisors in the courts is con- 
 stitutional, and in the exercise of its supervis- 
 ory power over elections for senators and 
 representatives, new duties may be imposed 
 
SUPPLEMENTAL 
 
 687 
 
 SUPPORT 
 
 by congress on the officers of election and new 
 penalties for breach of duty; 100 U. 8. 
 371, S99. See Election. 
 
 SUPPLEMENTAL. That which is 
 added to a thing to complete it ; as, a supple- 
 mental affidavit, which is an additional affida- 
 vit to make out a case ; a supplemental answer, 
 a supplemental bill. 
 
 SUPPLEMENTAL BILL. In Equity 
 Fiaotice. A bill brought as an addition to 
 an original bill to supply some defect in its 
 original frame or structure which cannot be 
 supplied by amendment. See 1 Paige, Ch. 
 200; 15 Miss. 456; 22 Barb. 161; 14 Ala. 
 N. 8. 147 ; 18 id. 771. It may be brought by 
 a plaintiff or defendant; 2 Atk. 538; 2 Ball 
 & B. 140 ; 1 Stor. 218 ; and as well after as 
 before a decree ; 3 Md. Ch. Dec. 306 ; 1 
 Macn. & G. 405 ; Story, Eq. PI. § 338 ; but 
 must be within a reasonable time ; 2 Halst. 
 Ch. 465. 
 
 It may be filed when a necessary party has 
 been omitted; 6 Madd. 369; 4 Johns. Ch. 
 605 ; to introduce a party who has acquired 
 rights subsequent to the filing of the original 
 bill ; 3 Iowa, 472 ; when, after the parties 
 are at issue and witnesses have been exam- 
 ined, some point not already made seems to 
 be necessary, or some additional discovery is 
 found requisite; 3 Atk. 110; 1 Paige, Ch. 
 200 ; Coop. Eq. PI. 73 ; when new events 
 referring to and supporting the rights and in- 
 terests already mentioned have occurred sub- 
 sequently to the filing of the bill ; Story, Eq. 
 PI. 336 ; 5 Beav. 253 ; 2 Md. Ch. Dec. 289 ; 
 for the statement only of facts and circum- 
 stances material and beneficial to the merits, 
 and not merely matters of evidence ; 3 Stor. 
 299 ; when, after a decision has been made on 
 the original bill, it becomes necessary to bring 
 other matter before the court to get the full 
 effect of it ; Story, Eq. PI. § 336 ; 3 Atk. 370 ; 
 when a material fact, which existed before 
 the filing of the bill, has been omitted, and it 
 can no longer be introduced by way of 
 amendment ; 3 Stor. 54 ; 2 Md. Ch. Dec. 
 303; Mitf. Ch. PI. 55, 61, 325; but only by 
 special leave of court when it seeks to change 
 the original structure of the bill and intro- 
 duce a new and difierent case ; 4 Sim. 76, 
 628; 3 Atk. 110; 8 Price, 518; 4 Paige, 
 Ch. 259 ; 2 Md. Ch. Dec. 42. See 2 Sumn. 
 316. 
 
 The bill must be in respect to the same title 
 in the same person as the original bill ; Story, 
 Eq. PI. 339. 
 
 It must state the original bill, and the pro- 
 ceedings 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. Ch. PI. 
 75; Story, Eq. PI. § 343. In the English 
 Supreme Court of Judicature, amendments 
 
 of the pleadings may now be allowed at any 
 stage of the proceedings in an action. 
 
 SUPPLETORY OATH. In Ecclesi- 
 astical Law. An oath given by the judge 
 to the plaintiff or defendant upon half proof, 
 as by one witness, already made. The oath 
 added to the half proof enables the judge to 
 decide. It is discretionary with the judge. 
 Stra. 80; 3 Sharsw. Bla. Com. 370*. 
 
 SUPPLICATIO (Lat.). In Civil Law. 
 A petition for pardon of a first offence ; also, 
 a petition for reversal of judgment ; also, 
 equivalent to duplicalio, which is our re- 
 joinder. Calvinus, Lex. 
 
 SUPPLICAVIT (Lat.). In English 
 Law. The name of a writ issuing out of 
 the king's bench or chancery for taking sure- 
 ties of the peace : it is commonly directed 
 to the justices of the peace, when they are 
 averse to acting in the affair in their judicial 
 capacity. 4 Bla. Com. 233. See Viner, 
 Abr. ; Comyns, Dig. Chancery (4 R), Forci- 
 ble Entry (D 16, 17). 
 
 SUPPLICIUM (Lat.). In Civil Law. 
 A corporal punishment ordained by law ; the 
 punishment of death : so called because it 
 was customary to accompany the guilty man 
 to the place of execution and there ofler sup- 
 plications for him. 
 
 SUPPLIES. In English Law. Ex- 
 traordinary grants to the king by parliament 
 to supply the exigencies of the state. Jacob. 
 
 SUPPORT. The right of support is an 
 easement which one man, either by contract 
 or prescription, enjoys, to rest the joists or 
 timbers of his house upon the wall of an ad- 
 joining building owned by another person. 3 
 Kent, 435. See Washb. Easem.; Lois des 
 Bat. pt. 1, c. 3, o. 2, a. 1, § 7. 
 
 A right to the support of one's land so as 
 to prevent its falling into an excavation made 
 by the owner of adjacent lands. 
 
 This support is of two kinds, lateral and 
 subjacent. Lateral support is the right of 
 land to be supported by the land which lies 
 next to it. Subjacent support is the right of 
 land to be supported by the land which lies 
 under it. In lateral support, if the soil has 
 no buildings on it and is thrown down by dig- 
 ging in the adjoining land, an action for dam- 
 ages will lie. This right is not in the nature 
 of an easement, but is a right incident to the 
 ownership of the property. But if there are 
 buildings on the land and the digging in the 
 adjoining land causes them to fall, no action 
 will lie for the damage done to the buildings, 
 but only for the injury done to the soil, ex- 
 cept when the digging can be shown to be 
 negligent. There is no natural right to the 
 support of buildings as there is to the support 
 of the soil. A right to the support of build- 
 ings is to be acquired only by grant express 
 or implied, or, as has sometimes been held, 
 by prescription. Equity will restrain by in- 
 junction any negligent excavating which is 
 
SUPPRESSIO VERI 
 
 688 
 
 SURETYSHIP 
 
 likely to overthrow neighboring buildings. In 
 subjacent support the rules are the same, both 
 as regards the natural soil and the soil when 
 burdened with buildings. See 1 Am. L. 
 Rev. 1 ; 27 Am. L. Reg. 529 ; Gale, Ease- 
 ments, 358 ; Wiishb., Goddard, Easements. 
 
 SUPPRESSIO VERI (Lat.). Conceal- 
 ment of truth. 
 
 In general, a suppression of the truth when 
 a party is bound to disclose it vitiates a con- 
 tract. In the contract of insurance, a know- 
 ledge of the facts is required to enable the 
 underwriter to calculate the chances and 
 form a due estimate of the risk ; and, in this 
 contract perhaps more than any other, the 
 parties are required to represent every thing 
 with fairness ; 1 W. Blackst. 594 ; 3 Burr. 
 1809. 
 
 Suppressio veri, as well as suggestio falsi, 
 is a ground to rescind an agreement, or at 
 least not to carry it into execution ; 3 Atk. 
 383 ; 1 Fonbl. Eq. c. 2, s. 8 ; 1 Ball & B. 
 241 ; 3 Munf. 232 ; 1 Pet. 383 ; 2 Paige, Ch. 
 390 ; Bisph. Eq. sec. 213 ; 1 Story, Eq. 
 Jur. § 264. See Concealment ; Misre- 
 presentation ; Representation ; Sug- 
 gestio Falsi. 
 
 SUPRA PROTEST. Under protest. 
 See Acceptance ; Acceptor ; Bills of 
 Exchange. 
 
 SUPREMACY. Sovereign dominion, 
 authority, and pre-eminence ; the highest 
 state. In the United Statfes the supremacy 
 resides in the people, and is exercised by their 
 constitutional representatives, the president 
 and congress. See Sovereignty. 
 
 SUPREME. That which is superior to 
 all other things ; as, the supreme power of 
 the state, which is an authority over all 
 others ; the supreme court, which is superior 
 to all other courts. 
 
 SUPREME COURT. In American 
 Lavr. A court of superior jurisdiction in 
 many of the states of the United States. 
 
 The name is properly applied to the court of 
 last resort, and is so used in most of the states. 
 In nearly all the states there is a supreme court, 
 but in one or two there is a court of appellate 
 jurisdiction from the supreme court. 
 
 See the articles on the respective states ; 
 Courts of the United States ; 4 Bla. 
 Com. 259. 
 
 SUPREME COURT OF ERRORS. 
 In American Law. An appellate tribunal, 
 and the court of last resort, in the state of 
 Connecticut. See Connecticut. 
 
 SUPREME JUDICIAL COURT. In 
 American Law. An appellate tribunal, and 
 the court of last resort, in the states of Maine, 
 Massachusetts, and New Hampshire. See 
 Maine ; Massachusetts ; New Hamp- 
 shire. 
 
 SURCHARGE. To put more cattle up- 
 on a common than the herbage will sustain or 
 than the party hath a right to do. 3 Bla. 
 Com. 237. 
 
 In case of common without stint it could 
 only happen when insufficient herbage was 
 left for the lord's own cattle ; 1 RoUe, Abr 
 399. 
 
 The remedy was by distraining the beasts 
 beyond the proper number ; an action of tres- 
 pass which must have been brought by the 
 lord of the manor ; an action on the case, or 
 a writ of admeasurement of pasture. 2 Sharsw 
 Bla. Com. 238, u. 
 
 In Equity Practice. To prove the omis- 
 sion of an item from an account which is be- 
 fore the court as complete, which should be 
 inserted to the credit of the party surcharg. 
 ing; Story, Eq. Jur. § 526; 2 Ves. 565; 11 
 Wheat. 237. It is opposed to falsify, wliich 
 see. Leave to surcharge and falsify is granted 
 in preference to opening an account, in case 
 of an account stated by the parties or re- 
 ported by an auditor, where the party obtain, 
 ing the liberty would be concluded by the 
 account were it not granted. See Account ; 
 Auditor. 
 
 SURETY. A person who binds himself 
 for the payment of a sum of money, or for the 
 performance of something else, for another. 
 See Suretyship. 
 
 SURETYSHIP. An undertaking to an- 
 swer for the debt, default, or miscarriage of 
 another, by which the surety becomes bound 
 as the principal or original debtor is bound. 
 It differs from guaranty in this, that surety. 
 ship is a primary obligation to see that the 
 debt is paid, while guaranty is a collateral un- 
 dertaking, essentially in the alternative, to 
 pay the debt if the debtor does not pay it ; 
 24 Pict. 252. And accordingly a surety may 
 be sued as a promisor to pay the debt, while 
 a guarantor must be sued specially on his con- 
 tract ; 8 Pick. 423. 
 
 While guaranty applies only to contracts 
 not under seal, and principally to mercantile 
 obligations, suretyship may apply to all obli- 
 gations under seal or by parol. The subjects 
 are, however, nearly related, and many of the 
 principles are common to both. There must 
 be a principal debtor liable, otherwise the 
 promise becomes an original contract; and, 
 the promise being collateral, the surety must 
 be bound to no greater extent than the prin- 
 cipal. Suretyship is one of the contracts in- 
 cluded in the Statute of Frauds, 29 Car. II. 
 c. 3. 
 
 The contract must be supported by a con- 
 sideration, like every other promise. With- 
 out that it is void, apart from the Statute of 
 Frauds, and whether in writing or not; 4 
 Taunt. 117; 17 Penn. 469. 
 
 Kent, C. J., divides secondary undertakings 
 into three classes : First, cases in which the 
 guaranty or promise is collateral to the prin- 
 cipal contract, but is made at the same time 
 and becomes an essential ground of the credit 
 given to the principal or direct debtor. Here 
 there is not, and need not be, any other con- 
 sideration than that moving between the credi- 
 [tor and original debtor. Second, cases in 
 
SURETYSHIP 
 
 689 
 
 SURETYSHIP 
 
 which the collateral undertaking is subsequent 
 to the creation of the debt, and was not the 
 inducement to it, though the ^ubsisting^ lia- 
 bility is the ground of the promise without 
 any distinct and unconnected inducement. 
 Here there must be some further consideration 
 shown, having an immediate respect to such 
 liability ; for the consideration for the original 
 debt will not attach to this subsequent prom- 
 ise. Third, when the promise to pay the 
 debt of another arises out of some new and 
 original consideration of benefit or harm 
 moving between the newly contracting par- 
 ties. The two first classes of cases are with- 
 in the Statute of Frauds ; the last is not ; 8 
 Johns. 29. This classification has been re- 
 viewed and affirmed in numerous cases ; 21 
 N. Y. 415 ; 21 Me. 459 ; 15 Pick. 159. 
 
 The rule that the statute does not apply to 
 class third has, however, been doubted ; and 
 it appears to be admitted that the principle is 
 there inaccurately stated. The true test is 
 the nature of the promise, not of the consid- 
 eration; 50 Penn. 39; 94 E. C. L. R. 885. 
 But see infra. 
 
 A simpler division is into two classes. 
 First, where the principal obligation exists 
 before the collateral undertaking is made. 
 Second, where there is no principal obligation 
 prior in time to the collateral undertaking. 
 In the last class the principal obligation may 
 be'Cohtemporaneous with or after the collateral 
 undertaking. The first class includes Kent's 
 second and third, the second includes Kent's 
 6rst, to which must be added cases where the 
 guaranty referring to a present or future prin- 
 cipal obligation does not share the considera- 
 tion thereof, but proceeds on a distinct con- 
 sideration. Moreover, there are other original 
 undertakings out of the Statute of Frauds and 
 valid though by parol, besides his third class. 
 These are where the credit is given exclu- 
 sively to th°. promisor though the goods or 
 consideration pass to another. Under this 
 division, undertakings of the first class are 
 original: jffrsJ, when the principal obligation 
 is thereby abrogated ; second, when without 
 such abrogation the promisor for his own ad- 
 vantage apparent on the bargain undertakes 
 for some new consideration moving to him 
 from the promisee ; third, where the promise 
 is in consideration of some loss or disadvan- 
 tage to the promisee ; fourth, where the pro- 
 mise is made to the principal debtor on a 
 Consideration moving from the debtor to the 
 promisor; Theob. . Surety, 37 et seq., 49 et 
 ieq. The cases under these heads will be 
 considered separately. 
 
 First, where the principal obligation is 
 pre-existent, there must be a new consider- 
 ation to support the promise ; and where this 
 consideration is the discharge of the principal 
 debtor, the promise is original and not cpUa- 
 teral, as the first requisite of a collateral pro- 
 mise is the existence of a principal obligation. 
 This has been held in numerous cases. The 
 discharge may be by agreement, by novation 
 or substitution, by discbarge or final process, 
 Vol. II.— 44 
 
 or by forbearance under certain circum- 
 stances ; 5 B. & Aid. 297 ; 4 B. & P. 124 ; 
 11 M. & W. 857 ; 21 N. Y. 412 ; 8 Gray, 
 233 ; 13 Md. 141 ; 28 Vt. 135 ; 10 Ired. 13; 
 61 Ala. 155; 60 Ga. 456. 
 
 But the converse of this proposition, that 
 where the principal obligation remains, the 
 promise is collateral, cannot be sustained, 
 though there have been repeated dicta to that 
 effect i Browne, Stat. Fr. § 193 ; 12 Johns. 
 291 ; 20 Wend. 201 ; denied in 21 N. Y. 
 415; 7 Ala. sr. s. 54; 33 Vt. 132. 
 
 The main question arising in cases under 
 this head is whether the debtor is discharged ; 
 and this is to a great extent a question for 
 the jury. But if in fact the principal debt 
 is discharged by agreement and the new pro- 
 mise is made upon this consideration, then 
 the promise is original, and not colUteral; 
 
 I Allen, 405. 
 
 It has been held that the entry on the cre- 
 ditor's books of the debtor's discharge is suffi- 
 cient to prove it; 3 Hill, So. C. 41 ; but not 
 conclusive; 41 N. H. 388; 17 Conn. 115. 
 
 A discharge of the debtor from custody, or 
 surrender of property taken on an execution, 
 is a good discharge of the debt; 11 M. & 
 W. 857 ; 9 Vt. 137 ; 4 Dev. 261 ; 21 N. Y. 
 415 ; 34 Barb. 97. 
 
 Where the transaction amounts to a sale of 
 the principal debt in consideration of the new 
 promise, the debtor is discharged, and the 
 promise is original ; 3 B. & C. 855 ; 1 C. M. 
 & R. 743. 
 
 So where a purchaser of goods transfers 
 them to another, who promises the vendor to 
 pay for them, this is a substitution and an ori- 
 ginal promise ; 5 Taunt. 450; 9 Cow. 266; 
 
 II Ired. 298; 21 Me. 545; 10 Mo. 538; 7 
 Cush. 133. 
 
 A mere forbearance to press the principal 
 debt is not such a discharge of the debtor as 
 will make the promise original ; 1 Sm. Lead. 
 Gas. 387 ; 21 N. Y. 412 ; 13 B. Monr. 356 ; 
 but where the forbearance is so protracted as 
 to discharge the debtor, it may be questioned 
 whether the promise does not become original ; 
 83 Vt. 132. 
 
 Second, the promise will be original if 
 made in consideration of some new benefit 
 moving from the promisee to the promisor ; 
 3 Dutch. 371 ; 4 Cow. 432 ; Bull. N. P. 281. 
 
 Third, the promise is original where the 
 consideration is some loss to the promisee or 
 principal creditor ; but it is held in many 
 such cases that the loss must also work some 
 benefit to the promisor ; 6 Ad. & E. 564 ; 3 
 Strobh. Eq. 177 ; 24 Wend. 260 ; 20 N. Y. 
 268. As to merely refraining from giving an 
 execution to the sheriff, see 14 Me. 140. 
 
 So the loss of a lien ; 7 Johns. 463 ; Burge, 
 Sur. 26. There have been decisions that the 
 mere relinquishment of a lien by the plaintiff 
 takes the case out of the statute; 10 Wend. 
 461; 7 Johns. 464; 1 McCord,_ 575. It 
 would seem that a surrender of a lien merely 
 is not a sufficient consideration ; 3 Mete. 
 Mass. 396 ; but it must appear that the sur- 
 
SURETYSHIP 
 
 690 
 
 SURETYSHIP 
 
 render is in some way beneficial to the promi- 
 sor, as when he has an interest in the goods 
 released; 77 N. Y. 91 ; 45 Ind. 180. 
 
 The rule is well settled that when the lead- 
 ing object of a promisor is to induce a pro- 
 misee to forego some lien, interest, or advan- 
 tage, and thereby to confer on the promisor a 
 privilege or benefit which he would not other- 
 wise possess or enjoy, an agreement made 
 under such circumstances and upon such a 
 consideration is a new, original, and binding 
 contract, although the efiect of it may be to 
 assume the debt and discharge the liability 
 of another; 2 Allen, 417 ; 3 Burr. 1886 ; 6 
 Maule & S. 204; 2 B. & Aid. 613 ; 1 Gray, 
 391. The adv;»ntage relinquished by the 
 promisee must directly enure to the benefit of 
 the promisor, so as in effect to make it a pur- 
 chase by the promisor ; 5 Cush. 488 ; 2 Wils. 
 94 ; 12 Johns. 291. It is stated in many 
 eases (under classes third and fourth, above) 
 that the promise is original where the consid- 
 eration moves to the promisor. The true 
 test, however, must be found not in the con- 
 sideration, but in the nature of the promise. 
 Wherever the new promisor undertakes for 
 his own default ; where his promise is virtu- 
 ally to pay his own debt in a peculiar way, or 
 if, by paying the debt, he is really discharg- 
 ing a liability of his oyiQ, his promise is origi- 
 nal. The only case in which consideration 
 can affect the terms of the promise is where 
 the consideration of the promise is the ex- 
 tinguishment of the original liability; 17 
 Mass. 229 ; 50 Pehn. 52 ; 18 Tex. 446 ; 22 
 How. 28. 
 
 Fourth, the promise is original if made on 
 a consideration moving from the debtor to the 
 promisor; 10 Johns. 412; 12 id. 291; 5 
 Wend. 235; Browne, Stat. Fr. § 170; 4 
 Cow. 432; 9 Cal. 92; 30 Ala. n. s. 599 ; 16 
 Barb. N. Y. 645 ; 5 Me. 31 ; 1 Gray, 391. 
 
 For the rule in a class of cases quite ana- 
 logous, see 9 111. 40 ; 3 Conn. 272 ; 21 Me. 
 410; 1 South. 219; 1 Spears, 4; 2 Bosw. 
 N. Y. 392 ; 13 Ired. 86 ; 5 Cra. 666. 
 
 Where the guaranty relates to a contempo- 
 raneous or future obligation, the promise is 
 original, and not suretyship, (a) if credit is 
 given exclusively to the promisor, (J) if the 
 promise is merely to indemnify. 
 
 In the first of these cases the question to 
 whom credit was given must be ultimately 
 for the jury in eaem case. If there is any 
 primary liability, and the creditor resorts to 
 the principal debtor first, the promise is colla- 
 teral. Thus, if the promisor says, "Deliver 
 goods to A, and I will pay you," there is no 
 primary obligation on the part of A, and the 
 promise is original ; 3 Mete. Mass. 396. But 
 if he says, " I will see you paid," or, "I pro- 
 mise you that he will pay," or, "If he do not 
 pay, I will," the pi;omise would be collateral; 
 2 Term, 80 ; 1 H. Blackst. 120 ; 7 Fed. Rep. 
 477; 3 Col. 176; 13 Gray, 613. 
 
 A promise to indemnify merely against 
 contingent loss from another's default is 
 original ; 15 Johns. 425 ; 4 Wend, 657. A 
 
 doubt is expressed by Mr. Browne, Stat, of 
 Frauds, § 158, whether the fact that mere 
 indemnity is intended makes the promise 
 original, because in many cases — those where 
 the indemnity is against the default of a third 
 person— there is an implied liability of that 
 person, and the promise is collateral thereto. 
 Now, there are three classes of cases. First 
 it is clear that where the indemnity is against 
 the promisor's default of debt he is already 
 liable without his promise ; and to use this 
 as a defence and make the promise collateral 
 thereto would be using the law as a cover to 
 a fraud; 1 Conn. 519; 46 Me. 41; 6 Bingh. 
 506; 10 Johns. 42; 17 id. 113; 17 Pick. 
 538. Second, so where the only debt against 
 which indemnity is promised is the promisee's, 
 this, being not the debt of another, but of the 
 promisee, is clearly hot within the statute, but 
 the promise is original. And even if the ex- 
 ecution of such a promise would discharge 
 incidentally some other liabihty, this fact does 
 not make the promise collateral; 13 M. & 
 W. 561 ; 1 Gray, 391 ; 9 id. 76 ; 25 Wend. 
 243; 10 Gill & J. 404; 22 Conn. 317; 
 23 Miss. 430; 34 N. H. 414; 31 Vt. 142. 
 Third, but where there is a liability implied 
 in another person, and the promise refers to 
 his liability or default, and if executed will 
 discharge such liability or default, the promise 
 would seem on reason to be collateral and 
 binding like a suretyship for future advances — 
 that is, when accepted; 9 Ired. 10 ; 1 Spears, 
 4 ; 1 Ala. 1 ; 1 Gill & J. 424 ; 10 Ad. & E. 
 453 ; 6 La. M. 8. 605 ; 4 Barb. 131. But m 
 many cases the rule is broadly stated that a 
 promise to indemnify merely is original ; 8 B. 
 & C. 728 [overruled, 10 Ad. & E. 4S3] ; 1 
 Gray, 391 ; 10 Johns. 242 ; 4 Wend. 657 
 [overruled, 4 Barb. 131]; 1 Ga. 294; 6 B. 
 Monr. 382; 20 Vt. 205; 10 N. H. 175; 1 
 Conn. 519 ; 5 Me. 504. In other cases the 
 distinction is made to rest on the fact that the 
 engagement is made to the debtor ; 9 Gray, 
 76 ; 1 1 Ad. & E. 438 ; and in other cases, on the 
 futurity of the risk or liability ; 12 Mass. 297. 
 
 The last ground is nntenatile ; future guar- 
 antees binding when accepted or acted upon, 
 and those against torts are expressly to the 
 contrary. The first ground is too broad, as 
 shown above ; and the second seems to ignore 
 the clear primary liability of the principal 
 debtor. 
 
 When the principal obligation is void, void- 
 able, not enforceable, or unascertained, the 
 promise is original, there being in this case no 
 principal obligation to sustain the promise as 
 collateral ; Browne, Stat. Fr. § 156. It may 
 be questionable, however, whether the promise 
 will in such cases be original unless the prom- 
 isor knows the principal liability to be void 
 or voidable ; Burge, Surety, 6 ; but this ques- 
 tion may be settled by the principle that 
 where credit is given to the principal, not- 
 withstanding his obligation is void or void- 
 able, the promise of we surety is collateral ; 
 4 Bingh. 470 ; 7 N. H. 368 ; but if no such 
 credit is given or implied, the promise is col- 
 
SURETYSHIP 
 
 691 
 
 SURETYSHIP 
 
 I 
 
 lateral. See 34 Barb. 208 ; 15 N. Y. 576 ; 
 33 Ala. N. 8. 106 ; 6 Gray, 90. Such would 
 be the guaranty of an infant's promise ; 7 N. 
 H. 368 ; and this is accordingly so held ; 20 
 Pick. 467 ; 4 Me. 521 ; though a distinction 
 has been made in the case of a married 
 woman; 4 Bingh. 470; 84 Penn. 135; 43 
 Ind. 103 ; but the promise is collateral where 
 the married woman has separate property 
 which she can charge with the payment of her 
 debts, and the credit is given exclusively to 
 her; 6 Ga. 14. 
 
 So where the liability is unascertained at 
 the time of the promise, the promise is origi- 
 nal ; as the liabilities must concur at the time 
 of the undertaking to make a guaranty ; 
 Browne, Stat. Fr. § 196 ; 1 Salk. 27 ; contra, 
 Ambl. 330. Under this head would come a 
 promise to pay damages for a tort, there being 
 no principal liability until judgment ; 1 Wils. 
 305 ; or where the liability rests upon aYuture 
 award; 2 Allen, 417 ; and liability upon in- 
 definite executory contracts in general. 
 
 The promise is clearly original where the 
 promisor undertakes for his own debt. The 
 rule is, unless the promisor himself or his 
 iroperty is ultimately to be made liable in 
 default of the principal debtor, the statute 
 does not apply; Browne, Stat. Fr. § 177. 
 Thus, an engagement by one who owes the 
 principal debtor to retain the principal debt, 
 so that it may be attached by trustee or gar- 
 nishee process, is not a collateral promise ; 9 
 Pick. 306; 20 Conn. 486 ; 1 Bingh. N. B. 
 103; 63 Barb. 321; 60 Iowa, 310. 
 
 So an agreement by a purchaser to pay part 
 of the purchase-money to a creditor of the 
 vendor is an agreement to pay his own debt ; 
 55 Miss. 365 ; 2 Lea, 543 ; 49 Iowa, 574 ; or 
 to pay a debt due a promisee by a third person 
 out of moneys owing by a promisor to such 
 third person; 32 Ohio, 415; 9 Cow. 266; 58 
 111. 233 ; or for the application of a fund due 
 a promisor by a third party; 86 Penn. 147; 18 
 How. 31. Such an agreement is a trust, or 
 an original promise. 
 
 UNDER THE STATUTE OP PKAUDS. 
 
 At common law, a contract of guaranty or 
 suretyship could be made by parol ; but by 
 the Statute of Frauds, 29 Car. II. c. 3, "no 
 action shall be brought whereby to charge the 
 defendant upon any special promise to answer 
 for the debt, default, or miscarriage of an- 
 other person, . . . unless the agreement upon 
 which such action shall be brought, or some 
 memorandum or note thereof, shall be in 
 writing and signed by the party to be charged 
 therewith, or by some person thereunto law- 
 fully, authorized :" so that under the statute 
 allcontraets of guaranty and suretyship must 
 be in writing and signed. The words debt 
 and default in the statute refer to contracts ; 
 2 East, 325 ; and debt includes only pre-ex- 
 isting liability; 12 Mass. 297; miscarriage 
 refers to torts ; 2 B. & Aid. 613. Torts are 
 accordingly within the statute, and may be 
 guaranteed against ; 2 B. & Aid. 613 ; 2 Day, 
 
 457; though this is doubted in regard to 
 future torts ; 1 Wils. 805. Perhaps a guar- 
 anty against future torts might be open to 
 objections on the ground of public policy. 
 
 The doctrine that a future contingent lia- 
 bility on the part of the principal is not within 
 the statute; 1 Salk. 27; 12 Mass. 297; is 
 not tenable ; and it is clear, both by analogy 
 and ou authority, that such a liability may sup- 
 port a guaranty, although such cases must be 
 confined within very narrow limits, and the 
 mere fact of the contingency is a very strong 
 presumption that the promise is original ; 
 Browne, Stat. Fr. § 196, 6 Vt. 666; 88 111. 561. 
 
 Where the promise is made to the debtor, 
 it is not within the statute ; 7 Halst. 188 ; 2 
 Denio, 162. "We are of opinion that the 
 statute applies only to promises made to the 
 person to whom another is answerable;" 11 
 Ad. & E. 446 ; 1 Gray, 391. The wordan- 
 other in the statute must be understood as re- 
 ferring to a third person, and not to a debt 
 due from either of the contracting parties ; 6 
 Cush. 552 ; 7 id. 136. False and deceitful 
 representations of the credit or solvency of 
 third persons are not within the statute ; 
 Browne, Stat. Fr. § 181 ; 4 Camp. 1. 
 
 The English rule required the consideration 
 to be expressed ; 5 East, 10. - It could not 
 be proved by parol ; 4 B. & A. 595. But 
 by statute 19 & 20 Vict. c. 197, s. 3, no such 
 promise shall be deemed invalid by reason 
 only that the consideration does not appear in 
 writing or by necessary inference from a 
 written instrument; 7 C. B. N. s. 361. The 
 rule varies in different states. In New York 
 (amending Rev. Stat. 221), Massachusetts, 
 Virginia, Indiana, Kentucky, there are sta- 
 tutes similar to the English statute. In Ala- 
 bama, Wisconsin, Oregon, Nevada, Minne- 
 sota, and California, the consideration is re- 
 quired by statute to be expressed. Of other 
 states where statutes are silent, some have ac- 
 cepted and some rejected the English con- 
 struction of Statutes of Frauds in Wain v. 
 Walters, 6 East, 10. 
 
 " Memorandum" includes consideration, 
 which must appear; 5 East, 10. 
 
 The courts lay hold of any language which 
 implies a consideration ; 21 N. Y. 315. So 
 where the guaranty and the matter guaranteed 
 are one simultaneous transaction, both will be 
 construed in connection, and the consideration 
 expressed in the latter applied to the support 
 of the former, if there are words of reference 
 in the guaranty ; 3 N. Y. 203 ; 36 N. H. 73. 
 
 FORMATION OF THF, OBLIGATION. 
 
 In construing the language of the con- 
 tract to decide whether it constitutes an ori- 
 ginal promise or a guaranty, it is difficult to 
 lay down a general rule : the circumstances 
 of particular cases vary widely. The word 
 guaranty or surety may or may not indicate 
 correctly the contract, and the circumstances 
 of the case may make an indorser liable as a 
 guarantor or surety, without any words to in- 
 dicate the obligation ; 24 Wend. 456. 
 
SURETYSHIP 
 
 692 
 
 SURETYSHIP 
 
 In general, if a promissory note is signed 
 or indorsed when made by a stranger to the 
 note, he becomes a joint promisor and liable 
 on the note ; 44 Me. 433 ; 9 Cush. 104 ; 14 
 Te;i. 275 ; 20 Mo. 571 ; and this -will be true 
 if indorsed after delivery to the payee in pur- 
 suance of an agreement made before the de- 
 livery ; 7 Gray, 284 ; 9 Mass. 384 ; but 
 parol evidence may be introduced to show 
 that he is a surety or guarantor ; 23 Ga. 368 ; 
 89 HI. 550. If the third party indorses after 
 delivery to the payee without any previous 
 agreement, he is merely a second indorser ; 1 1 
 Penn. 466 ; 82 N. C. 318 ; and he is liable as 
 a maker to an innocent holder ; 20 Mo. 591. 
 But it was held otherwise where the signa^ 
 ture was on the face of the note ; 19 N. H. 
 572 ; and the same is held where he signs an 
 inception of the note, in pursuance of a cus- 
 tom, leaving a blank for the payee's signature 
 above his name ; 12 La. An. 517. In Con- 
 necticut, such an indorser is held to guaranty 
 that the note shall be collectible when due ; 46 
 Conn. 410 ; 25 id. 576. The time of signing 
 may be shownby parol evidence ; 9 Ohio, 139. 
 
 It has been held that a third person indors- 
 ing in blank at the making of the note may 
 show his intention by parol; 11 Mass. 436; 
 13 Ohio, 228 ; but not if he describes himself 
 as guarantor, or if the law fixes a precise lia- 
 bility to indorsements in blank ; 2 Hill, N. 
 Y. 80; 4 id. 420. But this has been 
 doubted ; 33 E. L. & E. 282. In New York 
 the cases seem to take the broad ground that 
 an indorser in blank, under all circumstances, 
 is an indorser merely, and cannot be made a 
 guarantor or surety ; 7 Hill, 416 ; 1 N. Y. 
 324 ; see 95 U. S. 90. 
 
 The consideration to support a parol pro- 
 mise to pay the debt of another must be such 
 as would be good relating to the payment of 
 that particular debt or of any other of equal 
 amount; 33 Md. 373. It need not be neces- 
 sarily a consideration distinct from that of the 
 principal contract. 
 
 The giving of new credit where a debt al- 
 ready exists has been held a sufficient con- 
 sideration to support a guaranty of the old 
 and new debt ; 15 Pick. 159 ; 15 Ga. 321 ; 
 but the weight of authority would seem to re- 
 quire that there should be some further con- 
 sideration ; Browne, Stat. Fr. § 191 ; 5 East, 
 10 ; I Pet. 476 ; 3 Johns. 211 ; 20 Me. 28 ; 
 7 Harr. & J. 457. 
 
 Forbearance to sue the debtor is a good 
 consideration, if definite in time ; 1 Kebl. 
 114 ; or even if of considerable, Cro. Jac. 
 683, or reasonable time ; 3 Bulstr. 206. But 
 there must be an actual forbearance, and the 
 creditor must have had a power of enforce- 
 ment ; 4 East, 465 ; Willes, 482. But the 
 fact that it is doubtful whether such a power 
 exists does not injure the consideration; 5 
 B. & Ad. 123. Forbearance has been 
 held suflicient consideration even where there 
 was no well-grounded claim ; 18 L. J. C. P. 
 222; 34 Penn. 60; contra, 3 Pick, 83. A 
 short forbearance, or the deferment of a 
 
 remedy, as postponement of a trial, or post, 
 ponement of arrest, may be a good consider- 
 ation ; and perhaps an agreement to defer in- 
 definitely may support a guaranty ; 1 Cow. 
 99 ; 4 Johns. 257 ; 6 Conn. 81. A mere 
 agreement not to push an execution is too 
 vague to be a consideration ; 4 MeCord, 409 ■ 
 and a postponement of a remedy must be 
 made by agreement as well as in fact ■ 3 
 Cush. 85 ; 6 Conn. 81 ; U C. B. 172. 
 
 The contract of suretyship may be entered 
 into absolutely and without conditions, or its 
 formation may be made to depend on certain 
 conditions precedent. But there are some 
 conditions implied in every contract of this 
 kind, however absolute on its face. In the 
 case of bonds, as in other contracts of surety- 
 ship, it is essential that there should be a prin- 
 cipal, and a bond executed by the surety u 
 not valid until executed by the principal also. 
 One case, 10 Co. 100 b, sometimes cited to 
 the contrary, is not clear to the point. The 
 argument that the surety is bound by his re- 
 cital under seal fails, especially in all statute 
 bonds, where one important requisite of the 
 statute, that the bond should be executed by 
 the principal, fails ; 2 Pick. 24 ; 4 Beav. 383 ; 
 
 11 trf. 265; 14 Cal. 421. 
 
 Where the surety's undertaking is condi- 
 tional on others joining, he is liot liable until 
 they do so ; 4 B. & Ad. 440 ; 53 Ind. 321 ; 
 4 Cra. 219 : contra, if the obligee is ignorant 
 of the condition ; 2 Mete. Ky. 608 ; 16 Wall. 
 1 ; 61 Me. 505. So the surety is not bound 
 if the signatures of his co-sureties are forged^ 
 although he has not made his signature ex- 
 pressly conditional on theirs ; 2 Am. L. Reg. 
 349 ; but see 8 id. kt. s. 665. 
 
 The acceptance of the contract by the pro- 
 misee by words or by acts under it is often 
 made a condition precedent to the attaching 
 of the liability of the surety. The general 
 rule is that where a future guaranty is given; 
 absolute and definite in amount, no notice of 
 acceptance is necessary ; but if it is contin- 
 gent and indefinite in amount, notice must be 
 mven ; 4 Me. 521 ; 1 Mas. 324, 371 ; 8 
 Conn. 438 ; 16 Johns. 67 ; but the promisee 
 has a reasonable time to give such notice ; 8 
 Gray, 211. And see, on this" last point, 21 
 Ala. N. s. 721. 
 
 A distinction is to be made between a gua^ 
 ranty and an offer to guaranty. No notice of 
 acceptance is requisite when a guaranty is ab- 
 solute ; 3 N. Y\ 212 ; 2 Mich. 511 ; but an 
 offer to guaranty must have notice of accep- 
 tance; and till accepted it is revocable; 
 
 12 C. B. N. 8. 784; 6 Dow. H. L. C. 239; 
 82 Penn. 10 ; and where acceptance is re- 
 quired, it may be as well implied by acts as 
 by words ; as, by receiving the written gua- 
 ranty from the promisor ; 8 Gray, 211 ; or by 
 actual knowledge of the amount of sales under 
 a guaranty of the purchasc'-money ; 28 Vt. 160. 
 
 EXTENT OP OBLIGATION. 
 
 The liability of a surety cannot exceed, in 
 any event, that of the principal, though it 
 
SURETYSHIP 
 
 693 
 
 SURETYSHIP 
 
 may be less. The same rule does not apply 
 to the remedies, which may be greater against 
 the surety. But, whatever may be the lia- 
 bility imposed upon the surety, it is clear that 
 it cannot be extended by implication beyond 
 the terms of the contract. His obligation is 
 strictisiiimi juris, and cannot be extended be- 
 yond the precise terms of the contract ; 10 
 Johns. 180 ; 2 Penn. R. 27 ; 15 Pet. 187. 
 The rule is thus laid down by the United 
 States supreme court : sureties are never held 
 responsible beyond the clear and absolute 
 terms and meaning of their undertakings, 
 and presumptions and equities are never al- 
 lowed to enlarge, or in any degree to change, 
 their legal obligations ; 21 How. 66. And this 
 rule has been repeatedly reaffirmed ; UN. 
 Y. 598 ; 29 Tenn. 460 ; 6 How. 296 ; 2 
 Wall. 235. 
 
 The remedies against the surety may be 
 more extensive than those against the prin- 
 cipal, and there may be defences open to the 
 principal, but not to the surety, — as, infancy 
 of coverture of the principal, — which must 
 he regarded as a part of the rislts of the 
 surety ; 30 Vt. 122. 
 
 The liability of the surety extends to and 
 includes all securities given to him by the 
 principal debtor, the converse of the rule 
 stated below in the case of collateral security 
 given to the creditor ; 26 Vt. 308. Thus, in 
 Missouri, a creditor is entitled in equity to the 
 benefit of all securities given by the principal 
 debtor for the indemnity of his surety; 18 
 Mo. 136; 19 Ala. n. s. 798; 22 Miss. 87. 
 If the surety receives money from the prin- 
 cipal to discharge the debt, he holds it as 
 trustee of the creditor ; 6 Ohio, 80. 
 
 In general, the obligations of a surety are 
 the same as the obligations of the principal, 
 within the scope of the contract ; but the 
 principal may be under obligations not im- 
 posed by the contract, but yet coming so close 
 as to render the distinction a matter of some 
 difficulty. The obligation must, therefore, 
 he limited as to its subject-matter in time, 
 and in amount may be limited in its operation 
 to a single act, or be continuous, and may 
 include only certain liabilities. 
 
 In the common case of bonds given for the 
 faithful discharge of the duties of an office, it 
 is of course the rule that the bond covers only 
 the particular term of office for which it is 
 given, and it is not necessary that this should 
 be expressly stated ; nor will the time be ex- 
 tended by a condition to be bound "during 
 all the time A (the principal) continues," if 
 after the expiration of the time A holds over 
 merely as an acting officer, without a valid 
 appointment ; 3 Sandf. 403. The circum- 
 stances of particular cases may extend the 
 strict rule stated above, as in the case of offi- 
 cers annually appointed. Here, although the 
 bond recites the appointment, if it is condi- 
 tioned upon his faithful accounting for money 
 received before his appointment, the surety 
 maybe held; 9 B. & C. 35 ; 9 Mass. 267. 
 But the intention to extend the time, either 
 
 by including past or future liabilities, must 
 clearly appear, and the condition of the bond 
 in this particular is sometimes restrained by 
 the recital; 4 B. & P. 175. Generally the 
 recital cannot be enlarged and extended by 
 the condition; Theob. Surety, 66, n. [b]. 
 And where the recital sets forth an employ- 
 ment for twelve months, this time is not con- 
 trolled by a condition, "from time to time 
 annually, and at all times thereafter during 
 the continuance of this employment," al- 
 though the employment is actually continued 
 beyond the year ; 2 Camp. 39 ; 3 irf. 52 ; 2 
 
 B. & Aid. 431 ; 7 Gray, 1. 
 
 So the obligation may cease by a change in 
 the character of the office or employment, as 
 where the principal who has given a bond for 
 faithful discharge of the duties of clerk, is 
 taken into partnership by the obligee ; 3 Wils. 
 530 ; but an alteration in the character of the 
 obligees, by taking in new partners, does not 
 necessarily terminate the obligation ; 10 B. & 
 
 C. 122. But where an essential change takes 
 place, as the death of the obligee, the obli- 
 gation is terminated, although the business is 
 carried on by the executors; 1 Term, 18. 
 Where one becomes surety for two or either 
 of them, the obligation is terminated by the 
 death of one of the principals ; 1 Bingh. 
 452 ; but this is where the obligation is 
 essentially personal ; and where a bond for 
 costs was given by two as "defendants," the 
 surety was not discharged by the death of one ; 
 5 B. & Aid. 261. 
 
 So a surety for a lessee is not liable for rent 
 after the term, although the lessee holds over ; 
 1 Pick. 332. 
 
 If the law provides that a public officer 
 shall hold over until a successor is appointed, 
 the sureties on the official bond are liable dur- 
 ing such holding over; 37 Miss. 518; 2 
 Mete. Mass. 522 : contra, in the ease of offi- 
 cers of corporations ; 7 Gray, 1. And this 
 provision is not controlled by an alteration of 
 the law extending the term but leaving the 
 provision intact; 15 Gratt. 1. But when 
 the term of an office created by statute or 
 charter is not limited, but merely directory 
 for an annual election, it seems the surety will 
 be liable, though after the year, until his suc- 
 cessor is qualified ; 9 Am. L. Reg. N. s. 365 
 (Del. Chanc). See 10 W. N. C. (Pa.) 146. 
 
 In bonds, the penalty is the extreme amount 
 of liability of the surety ; but various circum- 
 stances may reduce the liability below this ; 2 
 South. 498 ; 3 Cow. 151 ; 6 Term, 303. If 
 the engagement of the surety is general, the 
 surety is understood to be obliged to the same 
 extent as his principal, and his liability ex- 
 tends to all the accessories of the principal 
 obligation; 14 La. An. 183. 
 
 A continuing guaranty up to a certain 
 amount covers a constant liability of that 
 amount; but if the guaranty is not continu- 
 ing, the liability ceases after the execution of 
 the contract to the amount limited ; 3 B. & 
 Aid. 593. 
 ' A guaranty may be continuing or may be 
 
SDRETYSHIP 
 
 694 
 
 SURETYSHIP 
 
 exhausted by one act; but in drawing dis- 
 tinctions on this point, each case must rest 
 upon its own circumstances. The general 
 principle may be thus stated : when by the 
 terms of the undertaking, by the recitals in 
 the instrument, or by, a reference to the cus- 
 tom and course of dealing between the par- 
 ties, it appears that the guaranty looked to a 
 future course of dealing for an indefinite time, 
 or a succession of credits to be given, it is to 
 be deemed a continuing guaranty, and the 
 amount expressed is to Emit the amount for 
 which the guarantor is to be responsible, and 
 not the amount to which the dealing or whole 
 credit given is to extend ; 7 Pet. 113 ; 3 B. 
 & Aid. 593. Thus, a guaranty for any goods 
 to one hundred pounds is continuous; 12 
 East, 227; or for " any debts not exceeding, " 
 etc. ; 2 Camp. 413 ; or, "I will undertake to 
 be answerable for any tallow not exceeding," 
 etc., but " without the word any it might 
 perhaps have been confined to one dealing ;" 
 3 Camp. 220. The words, "I do hereby 
 agree to guaranty the payment of goods ac- 
 cording to the custom of their trading with 
 you, in the sum o/ £200," are held to consti- 
 tute a continuing guaranty ; 6 Bingh. 244 ; 
 so of the words, " I agree to be responsible 
 for the price of goods purchased at any time, 
 to the amount of," etc.; 1 Mete. Mass. 24. 
 The words ' ' answerable for the amount of five 
 sacks of flour" are clearly not continuous; 6 
 Bingh. 276. See 6 Maule & S. 239. 
 
 Where the surety is bound for the acts of 
 the principal in a certain capacity or office, 
 the obligation ceases, as we have seen above, 
 on the termination of the office. But, be- 
 sides being limited in point of time to the 
 duration of the particular employment, it is 
 essential, to bind the surety, that the liabilities 
 of the principal should be of such a character 
 as may fairly be covered by the contract. In 
 official bonds, the liability of the surety is 
 limited to the acts of the principal in his offi- 
 cial capacity : e. g. & surety on a cashier's 
 bond is not liable for money collected by the 
 cashier as an attorney-at-law, and not ae- 
 connted for to the bank ; 4 Pick. 314. So 
 ako where one was surety, and the bond was 
 conditioned on the accounting by the princi- 
 pal for money received by him in virtue of 
 his office as parish overseer, the surety was 
 held not liable for money borrowed by the 
 principal for parochial purposes ; 7 B. & C. 
 491. On the other hand, a surety on a col- 
 lector's bond is liable for his principal's neglect 
 to collect, as well as failure to pay over ; 6 
 C. & P. 106. 
 
 As the surety is only liable to the obliga- 
 tions fairly intended at the execution of Uie 
 bond, he cannot be held for a breach of new 
 duties attached to his principal's office ; 
 Theob. Surety, 72; 4 Pick. 314; or if any 
 material change is made in the duties ; 2 
 Pick. 223. 
 
 If one guarantees payment for services, and 
 the promisee partly performs the services, but 
 fails of completing them from no fault of his 
 
 own, the guarantor is liable to the amount of 
 the part-performance ; 12 Gray, 445. 
 
 A bond for faithful performance of duties 
 renders the sureties responsible for ordinary 
 skill and diligence, as well as for inteuritv • 
 12 Pick. 303. ° ' 
 
 The contracts of guaranty and suretyship 
 are not negotiable or assignable, and in gene- 
 ral can be taken advantage of only by those 
 who were included as obhgees at the forma- 
 tion of the contract; 3 McLean, 279 ; 4 Cra. 
 224. Accordingly, the contract is terminated 
 by the death of one of several obligees ; 4 
 Taunt. 673 ; or by material change, as incor- 
 poration ; 3 B. & P. 34. But where a bond 
 is given to trustees in that capacity, their suc- 
 cessors can take advantage of it ; 12 East, 
 399. The fact that a stranger has acted on a 
 guaranty does not entitle him to the benefits 
 of the contract ; 20 Vt. 499 ; and this has 
 been held in the case of one of two guarantees 
 who acted on the guaranty ; 3 Tex. 199. 
 
 It is held that a guaranty addressed to no 
 one in particular may be acted on by any 
 one ; 22 Vt. 160 ; but the true rule would 
 seem to be that in such cases a party who had 
 acted on the contract might show, as in other 
 contracts, that he was a party to it within the 
 intention at the making ; the mere fact that 
 no obligee is mentioned does not open it to 
 everybody. 
 
 ENFORCEMENT OP OBLIGATION. 
 
 As the surety cannot be bound to any 
 greater extent than the principal, it follows 
 that the creditor cannot pursue the surety until 
 he has acquired a full right of action gainst 
 the principal debtor. A surety for the per- 
 formance of any future or executory contract 
 cannot be called upon until there is an actual 
 breach by the principal. A surety on a pro- 
 missory note cannot be sued until the note 
 has matured, as there is no debt until that 
 time. All conditions precedent to a right of 
 action against the principal must be complied 
 with. Where money is payable on demand, 
 there must have been a demand and refusal. 
 But it is not necessary that the creditor 
 should have exhausted all the means of ob- 
 taining his debt. In some cases which will 
 be treated of in detail, it may be requisite to 
 notify the surety of the default of the debtor, 
 or to sue the debtor ; but this depends upon 
 the particular conditions and circumstances 
 of each case, and cannot be considered a con- 
 dition precedent in all cases. Even where 
 the creditor has a fund or other security to 
 resort to, he is not obliged to exhaust this be- 
 fore resorting to the surety; he may elect 
 either remedy, and pursue the surety first. 
 But if the surety pay the debt, he is entitled 
 to claim that the creditor should proceed 
 against such fund or other security for his 
 benefit; 4 Jones, Eq. 212; S3 Ala. n. a. 
 261. 
 
 And if the creditor, having received such 
 collateral security, avail himself of it, he is 
 bound to preserve the original debt ; for m 
 
SURETYSHIP 
 
 695 
 
 SURETYSHIP 
 
 ^ 
 
 equity the surety will be entitled to subroga- 
 tion ; 38 Penn. 98. A judgment against the 
 principal may be assigned to the surety upon 
 payment of the debt ; 1 Mete. 489 ; 4 Jones, 
 Eq. 262. But an assignment of the debt must 
 be for the whole : the surety cannot pay a 
 
 lart and claim an assignment pro tanto ; 39 
 
 ^. H. 150. 
 
 In general, it is not requisite that notice of 
 the default of the principal should be given 
 to the surety, especially when the engage- 
 ment is absolute and for a definite amount ; 
 14 East, 514. The guarantor on a note is 
 not entitled to notice as an indorser; 33 
 Iowa, 293 ; 74 Penn. 351, 445 ; 56 Mo. 272. 
 Laches in giving notice to the surety upon a 
 draff of the default of the principal can only 
 be set up as a defence in an action against the 
 surety, in cases where he has suffered damage 
 thereby, and then only to the extent of that 
 damage ; 3 N. Y. 203 ; it is no defence to an 
 action against a surety on a bond that the 
 plaintiif knew of the default of the principal, 
 and delayed for a. long time to notify the 
 surety or to prosecute the bond ; 1 Zabr. 
 100. 
 
 If after a joint judgment against a principal 
 and his surety on their joint and several bond, 
 the surety die, the obligee has no remedy in 
 equity against his executor ; 9 How. 83. 
 
 DISCHARGE OF OBLIGATION. 
 
 The obligation may be discharged by acts 
 of the principal, or by acts of the creditor. 
 Payment, or tender of payment, by the one, 
 and any act which would deprive the creditor 
 of remedies which in case of default would 
 enure to the benefit of the surety, are in- 
 stances of discharge. In the first place, a 
 payment by the debtor would of course 
 operate to discharge the liability. The only 
 questions which can arise upon this point are, 
 whether the payment is applicable to the 
 payment in question, and as to the amount. 
 Upon the first of these, this contract is gov- 
 erned by the general rule that the debtor 
 can apply his payment to any debt he chooses. 
 The surety has no power to modify or direct 
 the application, but is bound by the election 
 of the principal ; 2 Bingh. N. c. 7. If no such 
 election is made by the debtor, the creditor 
 may apply the payment to whichever debt he 
 sees fit; 7 Wheat. 20 ; 9 Cow. 409, 747 ; 1 
 Pick. 336. This power, however, only ap- 
 plies to voluntary payments, and not to pay- 
 ments made by "process of law ; 10 Pick. 129. 
 A surety on a promissory note is discharged 
 by the payment, and the note cannot be again 
 put in circulation ; 12 Cush. 163. Whatever 
 will discharge the surety in equity will be a 
 defence at law; 7 Johns. 337 ; 2 Ves. 542 ; 2 
 Pick. 223 ; 16 S. & E. 252 ; 5 Wend. 85. 
 
 A release of the principal debtor operates 
 as a discharge of the surety; though the 
 converse is not true ; 17 Tex. 128 ; unless the 
 obligation is such that the liability is joint 
 onlv, and cannot be severed. See, on this 
 poiiit, Fell, Guar. c. ii. ; 8 Penn. 265. 
 
 Fraud or alteration avoids a contract of 
 suretyship. Fraud may be by the creditor's 
 misrepresentation or concealment of facts. Un- 
 less, however, the contract between the debtor 
 and creditor is unusual, the surety must ask 
 for information; 12 CI. & F. 109; 26 Ga. 
 241 ; 15 W. Va. 21. The creditor has been 
 held bound to inform surety of debtor's pre- 
 vious default ; 33 Penn. 358 ; L. R. 7 Q. B. 
 666 ; contra, 21 W. R. 439 ; 91 111. 518 ; 
 though not of his mere indebtedness; 17 C. 
 B. N. s. 482. But to receive a surety known 
 to act on belief that there are no unusual cir- 
 cumstances increasing his risk, knowing that 
 there are such, and neglecting to communi- 
 cate them, is fraud; 36 Me. 179; 31 N. Y. 
 518. 
 
 Any material alteration in the contract 
 without the assent of the surety, or change 
 in the circumstances, will discharge the surety. 
 Such are the cases where the sureties on a bond 
 for faithful performance are released by a 
 change in the employment or office of the 
 principal; 6 C. B. n. s. 550; and it makes 
 no difference whether the change is prejudicial 
 to the surety or not ; 80 Vt. 122 ; 32 N. H. 
 550 ; 3 B. & C. 605 ; 9 Wheat. 680 ; Paine, 
 805 ; 3 Binn. 520 ; 8 Wash. C. C. 70. But 
 it seems that an alteration by the legisla- 
 ture in an official's duties will not discharge 
 surety as long as they are appropriate to his 
 office ; 36 N. Y. 459. If the principal and 
 obligee change the terms of the obligation 
 without the consent of the surety, the latter 
 is discharged ; 4 Wash. C. C. 26. 
 
 If the creditor, without the assent of the 
 surety, gives time to the principal, the surety 
 is discharged ; 8 Mer. 272 ; 2 Bro. C. C. 579 ; 
 3 Y. & C. 187; 2 B. & P. 61; 7 Price, 223 ; 8 
 Bingh. 156. So where he agrees with the 
 principal to rive time to the surety; L. R. 7 Ch. 
 App. 142. But not where a creditor reserves 
 his rights against the surety; 16 M. & W. 
 128 ; 4 H. L. C. 997. The rule applies where 
 a state is a creditor; 75 N. C. 515. 
 
 The contract must be effectual, binding the 
 creditor as well as the debtor ; and it is not 
 enough that the creditor merely forbears to 
 press the debtor ; 2 Ad. & E. 628 ; 5 Gray, 
 457 ; 15 Ind. 45. See, also, 17 Johns. 176; 
 1 Gall. 35 ;, 2 Caines, Cas. 30; 2 White & T. 
 L. C. Eq. *974 ; 9 Tex. 615 ; 9 CI. & F. 45. 
 
 The receipt of interest on a promissory 
 note, after the note is overdue, is not suffi- 
 cient to discharge the surety ; 8 Pick. 458 ; 
 6 Gray, 319; nor is taking another bond as 
 collateral security to the original, having a 
 longer time to run ;_ 41 N. Y. 474. 
 
 And as a requisite to the binding nature of 
 the agreement, it is necessary that there 
 should be some consideration ; 2 Dutch. 191 ; 
 30 Miss. 424 ; but a part payment by the 
 principal is held not to be such a considera^ 
 tion; 31 Miss. 664. Pre-payment of interest 
 is a good consideration ; 30 Miss. 432 ; but 
 not an agreement to pay usurious interest, 
 where the whole sum paid can be recovered 
 back ; 10 Md. 227 ; though it would seem to 
 
SURETYSHIP 
 
 696 
 
 SUKETYSHiP 
 
 be otherwise if the contract is executed, and 
 the statutes only provide for a recovery of the 
 excess; 2 Patt. & H. 504. 
 
 It has been questioned how far the receipt 
 of interest in advance shows an agreement to 
 extend the time : it may undoubtedly be a 
 good consideration for such an agreement, but 
 does not of itself constitute it. At the most 
 it may be said to be prima facie evidence of 
 the agreement; 30 Vt. 711 ; 16 N. H. 119 ; 
 1 Y. & C. 620. 
 
 The surety is not discharged if he has given 
 his assent to the extension of the time ; 6 
 Bosw. 600; 2 McLean, 99; 16 Penn. 112. 
 Such assent by one surety does not bind his 
 co-surety; 10 N. H. 318; and subsequent 
 assent given by the surety without new con- 
 sideration, after he has been discharged by a 
 valid agreement for delay, will not bind him ; 
 1 2 N. H. 320. He need not show notice to 
 the creditor of his dissent; 12 Ga. 271. 
 
 Where an execution against a principal is 
 not levied, or a levy is postponed without 
 the consent of the surety, he is discharged 
 from his liSbility as surety, unless he has 
 property of the principal in his hands at the 
 time ; if he has property in his hands liable 
 for the principal's debts, the creditors of the 
 principal may insist on an application of the 
 property to the payment of their debts ; 9 B. 
 Monr. 235.' Marriage of the principal and 
 creditor discharges the surety, destroying the 
 right of action ; 30 Ark. 667. 
 
 If the creditor releases any security which 
 he holds against the debtor, the surety will 
 be discharged ; 7 Mo. 497 ; 8 S. & K. 452 ; 
 but if the security only covers a part of the 
 debt, it would seem that the surety will be 
 released only ^ro tanto; 9 W. & S. 36 ; 127 
 Mass. 386 ; so of an execution levied ; 88 
 Penn. 157. Nor will it matter if the security 
 is received after the contract is made. A cre- 
 ditor who has the personal contract of his 
 debtor, with a surety, and has also or takes 
 afterwards property from the principal as a 
 pledge or security for his debt, is to hold the 
 property fairly and impartially for the benefit 
 of thei surety as well as himself, and if he parts 
 with it without the knowledge or against the 
 will of the surety he shall lose his claim 
 against the surety to the amount of the pro- 
 perty so surrendered, in equity ; 43 Me. 381 ; 
 8 Pick. 121 ; 4 Johns. Ch. 129 ; 4 Ves. 829 ; 
 5 N. H. 353 ; or at law ; 8 S. & R. 457 ; 13 
 id. 157. The fact that other security, as good 
 as, or better than, that surrendered, was sub- 
 stituted for it, will not preclude the surety 
 from availing himself of the discharge ; 15 
 N. H. 119; 2 Am. L. Rteg. n. s. 403 ; 80 
 111. 122. 
 
 But a surety is not discharged by the fact 
 that the creditor has released or compounded 
 with his co-surety ; much less if his co-surety 
 has been released by process of law. The 
 only effect of such a release or composition is 
 that the surety is then not liable for the pro- 
 portion which would properly fall on his co- 
 surety ; 6 Ves. 605. This at least is the 
 
 doctrine in equity ; although it may be quej. 
 tioned whether it would apply at law where 
 tlfe obligation is joint; 4 Ad. & E. 675. 
 
 But if the obligation is joint and several 
 a surety is not r^eased from his proportion 
 by such discharge of his co-surety ; 31 Penn 
 460. 
 
 RIGHTS OP SURETY AGAINST PRINCIPAL. 
 
 Until default, the surety has, in general, no 
 rights against the principal, except the passive 
 right to be discharged from the obligation on 
 the conditions stated before. But after de- 
 fault on the part of the principal, and before 
 the surety is called upon to pay, the latter 
 has a remedy against the further continuance 
 of the obligation, and he cannot in all eases 
 as we shall see below, compel the creditor to 
 proceed^ against the debtor; but the English 
 courts in equity allow him to bring a bill 
 against the debtor, requiring the latter to ex- 
 onerate him ; 2 Bro. C. C. 579. 
 
 So, in this counti:y, a surety for a debt 
 which the creditor neglects or refuses to en- 
 force by proper proceedings for that purpose 
 may, by bill in equity, bring both debtor and 
 creditor before the court, and have a decree 
 to compel the debtor to make payment and 
 discharge the surety ; 6 Sneed, 86 ; 3 E. D. 
 Smith, 432 ; and in courts having full eqnity 
 powers there can be no doubt of the right of 
 a surety, after a debt has become due, to file 
 a bill to compel the principal debtor to pay, 
 whether the surety has himself been sued or 
 not ; 2 Md. Ch. Dec. 442 ; 4 Johns. Ch. 128. 
 
 The surety, after payment of the debt, 
 may recover the amount so paid of the prin- 
 cipal, the process varying according . to the 
 Sractice of different courts ; 2 Term, 104 ; 4 
 le. 200: 1 Pick. 121 ; 13 111. 68. The lit- 
 bility assumed by the surety is held to be a 
 good consideration tosustainanothercontract;, 
 21 Pick. 241 . 
 
 And such payment refers back to tlie origi- 
 nal undertaking, and overrides all intermedi- 
 ate equities, as of the assignee of a claim 
 against the surety assigned by the principal 
 before payment ; 28 Vt. 391. 
 
 The payment must not be voluntary, or 
 made in such a manner as to constitute a 
 purchase ; for the surety, by purchasing the 
 claim, would take the title of the creditor, and 
 must claim under that, and not on his own ini' 
 plied contract of the principal. By an invol- 
 untary payment is intended only a payment 
 of a claim against which the surety cannot: 
 defend. It is not necessary that a suitshould 
 be brought. But a surety who pays money 
 on a claim which is absolutely barred has n» 
 remedy against the principal ; 3 Rand. 490<ii' 
 3 N. H. 270. 
 
 A surety, having in his hands funds or ae^ 
 curities of the principal, may apply them to 
 the discharge of the debt; 10 Rich. Eq. 557) 
 but where the fund is held by one suiret^Mtan 
 must share the benefit of it with U>ifm$ 
 surety; 3 Jones, Eq, 170; 28 Vt. 6^..,^m^ 
 a surety who has security for his liability mfSftJ 
 
SURETYSHIP 
 
 697 
 
 SURETYSHIP 
 
 sue the principal on his implied promise all 
 the same, unless it was agreed that he should 
 look to the security only ; 4 Pick. 444, A 
 surety need not account to his co-surety for 
 the pimple indebtedness by himself to the 
 principal; 77N. Y. 280. 
 
 Payment of a note by a surety by giving 
 a new note is sufficient payment, even if the 
 new note has not been paid when the suit is 
 commenced; 4 Pick. 444 :_ 14 id. 286 ; 3 N. 
 H. 866 : contra, where judgment had been 
 rendered against the surety ; 3 Md. 47 ; or by 
 conveyance of land; 9 Cush. 213. 
 
 If the surety pays too much by mistake, he 
 can recover only the correct amount of the 
 principal; 1 Dane, Abr. Mass. 197. If a 
 surety pays usurious interest to obtain time 
 to pay the debt of the principal, he cannot 
 recover it of the principal ; 1 Mich. 193. 
 
 Extraordinary expenses of the surety, which 
 mi'ght have been avoided by payment of the 
 money, or remote and unex^iected conse- 
 quences, are never considered as coming 
 within the contract ; 17 Mass. 169 ; 5 Rawle, 
 106. Costs incurred and paid by the surety 
 in litigating in good faith the claim of the 
 ereditor can be recovered of the principal; 
 30 Vt. 467 ; 5 Barb. 898 ; but not so if the 
 Utigation is in bad faith ; 24 Barb. 546 ; or 
 where the surety, being indemnified for his 
 iSability, incurred expenses in defending, a 
 suit contrary to the expressed wishes of the 
 principal and after being notified by him that 
 there was no defence to such action ; 22 Conn. 
 299. 
 
 Joint sureties who pay the debt of the prin- 
 cipal may sue jointly for reimbursement ; 3 
 Mete. Mass. 169 ; and if each surety has paid 
 a moiety of the debt, they have several rights 
 of action against the principal ; 20 N. H. 
 418. 
 
 BIGHTS OF SURETY AGAINST CREDITOR. 
 
 It is not quite clear whether a surety can 
 enforce any remedies on the part of the cred- 
 itor before actual payment by the surety ; 
 andv of course, as connected with this, what 
 is the effect of a request by the surety to the 
 creditor to proceed against the debtor, and 
 neglect or refusal to comply by the creditor. 
 The objection to discharging the surety on 
 account of such neglect is the fact that the 
 surety may pay the debt and at once become 
 subrogated to all the rights of the creditor ; 
 B^Md. 210. But where there are courts in 
 tlie exercise of full equity powers, the surety 
 may insure a prompt prosecution either by 
 dischai^ing the obligation and becoming by 
 ; substitution entitled to all the remedies pos- 
 sessed by the creditor, or he may coerce the 
 creditor to proceed by an application to a 
 court of equity ; 2 Johns. Ch. 554 ; though in 
 the ktter case he would probably be required 
 tftindemnify the creditor against the conse- 
 
 ?nfeces of risk, delay, and expense ; 2 Md. 
 ih'J'Bec. 442. The same indemnity would 
 in general be required where a request is 
 made; but it has been held that a simple re- 
 
 quest to sue the principal debtor, without a 
 tender of expenses, or a stipulation to pay 
 them, or an offer to take the obligation and 
 bring suit, is sufficient to discharge the surety, 
 unless the creditor at the time of the notice 
 expressly puts his refusal to sue on the ground 
 of the trouble and expense, and offers to pro- 
 ceed if that objection be removed ; 18 Penn. 
 460. A creditor is not bound to make use of 
 active diligence against a principal debtor on 
 the mere request of a surety ; 13 111. 376. 
 There must be an express declaration by the 
 surety that he would otherwise hold himself 
 discharged; 29 Ohio St. 663; 90 Penn. 363. 
 The surety who pays the debt of the prin- 
 cipal in full is entitled to have every advan- 
 tage which the creditor ha« in pursuing the 
 debtor, and for this purpose may have assign- 
 ment of the debt, or be subrogated either 
 in law or equity ; 39 N. H. 150. Whether 
 the remedy will be by subrogation, or whether 
 the suit must be in the name of the creditor, 
 will depend upon the rules of practice in the 
 different states ; 38 Penn. 98. The right of 
 subrogation does not depend upon any con- 
 tract or request by the principal debtor, but 
 rests upon principles of justice and equity ; 1 
 N. Y. 695 ; 4 Ga. 343 ; and, though origin- 
 ating in courts of equity, is now fully recog- 
 nized as a legal right ; 11 Barb. 159. 
 
 RIGHTS OF SURETY AGAINST CO-SURETY. 
 
 The co-sureties are bound to contribute 
 equally to the debt they become liable to 
 pay when their undertaking is joint, or joint 
 and several, not separate and successive ; 3 
 Pet. 470; but the creditor may recover the 
 whole amount of one surety, and leave him 
 to his remedy by contribution from the others 
 and reimbursement from the principal ; 1 
 Dana, 355. To support the right of contri- 
 bution, it is not necessary that the sureties 
 should be bound by the same instrument ; 2 
 Swanst. 185; 14 Yes. 160. But where two 
 sureties are bound by separate and distinct 
 agreements for distinct amounts, although for 
 equal portions of the same desbt, there is no 
 right of contribution between them ; 1 Turn. 
 & E. 426 ; 3 Pet. 470. The right of contri- 
 bution, however, does not arise out of any 
 contract or agreement between co-sureties to 
 indemnify each other, but rests on the princi- 
 ple of equity, which courts of law will en- 
 force, that where two persons are subject to a 
 common burden it shall be borne equally be- 
 tween them ; 66 N. Y. 225 ; in such cases 
 the law raises an implied promise from the 
 mutual relation of the p^iiies ; 3 Allen, 566. 
 
 It is not necessary that the co-sureties 
 should know of the agreements of each other, 
 as the principle of contribution rests only on 
 the equality of the burden, and not on any 
 privity ; 2 B. & P. 270 ; 23 Penn. 294 ; 61 
 ' Ala. 440 ; but a volunteer is not entitled to 
 contribution ; there must be a contract of 
 suretyship ; 56 Penn. 80 ; and see 22 Am. 
 L, Reg. 529 (a full article). 
 
 A surety may compel contribution for the 
 
SURETYSHIP 
 
 698 
 
 SURGEON 
 
 costs and expenses of defending a suit, if the 
 defence were made under such circumstances 
 as to be regarded as prudent; 23 Vt. 581. 
 And where the suit is defended at the instance 
 or request of the co-surety, costs would be a 
 subject of contribution, both on equitable 
 gi-ounds and on the implied promise ; 1 Mood. 
 & M. 406. 
 
 A claim for contribution extends to all se- 
 curities given to one surety ; 30 Barb. 403 ; 3 
 Johns. Eq. 170. If one of several sureties 
 takes collaterals from the principal, they will 
 enure to the benefit of all; 28 Vt. 65; 3 
 Dutch. 503. Where one of several sureties 
 is secured by mortgage, he is not bound to 
 enforce his mortgage before he pays the debt 
 or has reason to apprehend that he must pay 
 it, unless the mortgagor is wasting the estate ; 
 and if the mortgagor be squandering the mort- 
 gaged property, and the surety secured by the 
 mortgage fails to enforce his rights, he is 
 chargeable between himself and his co-sure- 
 ties with the fair vendible value of the mort- 
 faged property at a coercive sale ; 1 1 B. 
 lonr. 399. The surety in a suit for contri- 
 bution can recover only the amount which he 
 has actually paid. Any reduction which he 
 has obtained must be regarded as for the ben- 
 efit of all the co-sureties; 12 Gratt. 642. And 
 see 11 B. Monr. 297. But he is not obliged 
 to account for a debt due by him to principal ; 
 10 W. N. C. (Pa.) 225. 
 
 The right of contribution may be con- 
 trolled by particular circumstances : thus, 
 where one becomes surety at the request of 
 another, he cannot be called on to contribute 
 by the person at whose request he entered into 
 the security ; 2 Esp, N. P. 478 ; 37 N. H. 
 567. The agreement between the first surety 
 and the second in such a case is not within 
 the Statute of Frauds ; 4 Zabr. 812. The 
 right to contribution may be lost by laches ; 
 89 Penn. 336. 
 
 A surety who is fully indemnified by his 
 principal cannot recover contribution from 
 his co-surety for money paid by him, but 
 must indemnify himself out of the means 
 placed in his hands ; 21 Ala. N. s. 779, n. 
 
 The remedy for contribution may be either 
 in equity or at law. The law raises an im- 
 plied promise, as we have seen, and clearly 
 gives the right of action,, and the remedy at 
 law is ancient, writs of contribution being 
 found in the Register, fo. 176, and in Fitzh. 
 N. B, 162. But the majority of the cases 
 are in equity, where the rules of practice are 
 much better suited to the proceeding, espe- 
 cially where the accounts are complicated or 
 the sureties numerous. The result reached 
 either in law or in equity is the same, with 
 one important exception ; in the case of the 
 insolvency of one of the sureties. In such 
 cases the law takes no notice of the insolvency, 
 but awards the paying surety his due propor- 
 tion as if all were solvent. But equity takes 
 no notice of the surety who is insolvent, but 
 awards contribution as if he had never ex- 
 isted; 1 Ch. Cas. 246; 6 B. & C. 689; 4 
 
 Gratt. 267. One surety cannot by injunction 
 arrest the proceedings at law of his co-surety 
 against him for contribution unless he tenders 
 the principal and interest due such co-surety 
 wlio has paid the principal, or alleges that he 
 is ready and willing to bring the same into 
 court to be paid to him as a condition of the 
 court's interference ; 4 Gill, 225. Where a 
 surety has been compelled to pay the debt of 
 his principal, and one of his co-sureties is out 
 of the jurisdiction of the court, and others 
 are within it, thle surety who has paid is at 
 liberty to proceed in a suit in equity for con- 
 tribution against those co-sureties only who 
 are within the jurisdiction, by stating the fact 
 in his bill, and the defendants will be required 
 to make contribution without regard to the 
 share of the absent co-surety; 6 Ired. Eq. 
 115. See, generally, 1 Lead. Cas. Eq. "100. 
 
 CONFLICT OF LAWS. 
 
 The contract of suretyship, like other con- 
 tracts, is governed by the lex loci contractus ; 
 but the locus is not necessarily the same as 
 that of the principal contract. Thus, the 
 contract made by the indorser of a note is, 
 not to pay the note where it is payable, but 
 that if not paid there he will pay it at the 
 
 5 lace where the indorsement is made ; 12 
 ohns. 142; 13 Mass. 20; 16 Mart. La. 606 ; 
 4 B. & Aid. 654 ; 8 Pick. 194. The lex loci 
 applies as well to the interest as to the princi- 
 pal amount. A question has been made in 
 the case of bonds for faithful performance 
 given by public officers ; and in these it has 
 been held that the place of performance is to 
 be regarded as the place of making the con- 
 tract, and sureties are bound as if they made 
 the contract at the seat of the government to 
 which the bonds are given. And under this 
 rule the obligation of all on the bond is gov- 
 erned by the same law, although the principal 
 and sureties may sign in different states; 
 Story, Confl. L. 291 ; 6 Pet. 172. A letter 
 of guaranty written in the United States and 
 addressed to a person in England must be 
 construed according to the laws of England ; 
 1 How. 161. 
 
 Consult Bond ; Guaeanty ; Promissoky 
 Notes ; Burge, Boss, Theobald, De Col- 
 yar, Baylies, on Suretyship ; Fell, on Guar- 
 anty ; Pitman, on Principal and Surety ; 
 Browne, Statute of Frauds. 
 
 SifRGIiON. One who applies the prin- 
 ciples of the healing art to external diseases 
 or injuries, or to internal injuries or malfor- 
 mations, requiring manual or instrumental 
 intervention. One who practises surgery. 
 
 This definition is imperfect, it being impossible 
 to define the terra surgeon or surgery. The term 
 surgery, or chinirgery, comes from two Greek 
 words signifying tte hand and work, meaning a 
 manual procedure by means of instrnments, or 
 otherwise, in the healing of injuries and the cure 
 of disease. The practice of medicine, in contra- 
 distinction to the practice of surgery, denotes 
 the treatment of disease hy the administration 
 of drugs or other sanative subbtances. There 
 cannot be a complete separation between the 
 
SURNAME 
 
 699 
 
 SURRENDER 
 
 practice of medicine and surgery ae they are de- 
 veloped by modern science, and understood by 
 the most learned in the profession of medicine : 
 the principles of both are the same throughout, 
 and no one is qualified to practise either who 
 does not completely understand the fundamental 
 principles of both. 
 
 The general principles of law defining the 
 civil responsibilities of physicians and sur- 
 geons are the same as those that apply to and 
 govern the conduct of lawyers, engineers, 
 machinists, ship-builders, brokers, and other 
 classes of men whose employment requires 
 them to transact business demanding special 
 skill and knowledge; Elwell, Malp. 19 ; 27 
 N. H. 468. The surgeon does not warrant 
 or insure as to the result, ordinarily ; 7 C. & 
 P. 81; Elwell, Malp. 20. The surgeon or 
 physician may bind himself by an express 
 contract to cure ; Elwell, Malp. 21 ; Chitty, 
 Contr. 629; 27 N. H. 468; 2 Ld. Raym. 
 909; 1 Bell, Com. 459 ; 3 Bla. Com. 122. 
 
 Tindall, C. J., says: Every person who 
 enters into a learned profession undertakes to 
 bring to the exercise of it a reasonable, fair, 
 and competent degree of skill ; 8 C. & P. 475. 
 This degree of skill is what is usually termed 
 ordinary and reasonable ; Story, Bailm. 433 ; 
 Elwell, Malp. 22, 23. In addition to the ap- 
 plicati9n of ordinary skill in the treatment of 
 disease and injuries, the physician and sur- 
 geon undertake to give to their cases ordinary 
 care and diligence, and the exercise of their 
 best judgment ; Elwell, Malp. 26 ; 5 B. & 
 Aid. ,820 ; 1 5 East, 62 ; 15 Greenl. 97. See 
 Physician. 
 
 STTRNAME. A name which is added to 
 the Christian name. In modern times these 
 have become family names. 
 
 They are called surnames, because originally 
 they were written over the name in judicial writ- 
 ings and contracts. They were and are still used 
 for the purpose of distinguishing persons of the 
 same name. They were taken from something 
 attached to the persons assuming them : as, 
 John Carpenter, Joseph Black, Samuel Little, 
 etc. Any name by which a man is known Is his 
 true name ; 44 Vt. 663 ; 119 Kan. 522. If he 
 enters into a particular transaction by a particu- 
 lar name, that is his real name for the purposes of 
 that transaction, the law looks only to his iden- 
 tity ; 43N. T. Sup. Ct. 570 ; 5 M. & W. 449 ; 57 
 Raym. 2 ; 11 Ad. & E. 594 ; 4 Law Times, N. s. 
 167. See Name. 
 
 SURPLUS. That which is left from a 
 fund which has been appropriated for a par- 
 ticular purpose ; the remainder of a thing ; 
 the overplus ; the residue. See 18 Ves. 466. 
 
 SURPLUSAGIi. In Accounts. A 
 greater disbursement than the charges amount 
 to. A balance over. 1 Lew. 219. 
 
 In Pleading. Allegations of matter wholly 
 foreign and impertinent to the cause. All 
 matter beyond the circumstances necessary to 
 constitute the action is surplusage; Cowp. 
 683 ; 5 East, 275 ; 10 id. 205 ; 2 Johns. Cas 
 52; 1 Mas. 57; 16 Tex. 656. Generally, 
 matter of surplusage will be rejected and will 
 not be allowed to vitiate the pleading ; Co. 
 Litt. 308 J; 2 Saund. 306, n. 14; 7 Johns. 
 
 462 ; 18 id. 80 ; 8 Dougl. 472 ; 1 Root, 
 456; 1 Pet. 18; 2 Mass. 283; 8 S. & R. 
 124; 1 Ala. 326; Hempst. 221; 21 N. H. 
 535 ; as new and needless matter stated in 
 an innuendo; 9 East, 95; 7 Johns. 272; 
 even if repugnant to what precedes; 10 East, 
 142 ; see 16 Tex. 656 ; but if it shows that 
 the plaintiff has no cause of action, demur- 
 rer will lie; 1 Salk. 363; 3 Taunt. 139; 2 
 East, 451 ; 4 id. 400 ; 2 W. Blackst. 842 ; 3 
 Cra. 193. Where the whole of an allegation 
 is immaterial to the plaintiff's right of action, 
 it may be struck out as surplusage ; 1 Mas. 57. 
 Matter laid under a videlicet, inconsistent 
 with what precedes, may be rejected as sur- 
 plusage ; 4 Johns. 450 ; 2 Blackf. 143 ; and 
 when the unnecessary matter is so connected 
 with what is material that it cannot be sepa- 
 rated, the whole matter may be included in 
 the traverse; Dy. 365; 2 Saund. 206 a, a. 
 21 ; and the whole must be proved as laid; 1 
 Ohio, 483 ; 1 Brev. 11 ; Steph. Plead. 422. 
 
 SURPRISE. In Equity Practice. The 
 
 act by which a party who is entering into a 
 contract is taken unawares, by which sudden 
 confusion or perplexity is created, which ren- 
 ders it proper that a court of equity should 
 relieve the party so surprised. 2 Bro. C. C. 
 150 ; 1 Story, Eq. Jur. § 120, n. 
 
 The situation in which a party is placed, 
 without any default of his own, which will be 
 injurious to his interests. 8 Mart. La. N. s. 
 407. 
 
 Mr. Jeremy, Eq. Jur. 366, 383, note, seems to 
 think that the word surprise is a technical ex- 
 pression, and nearly synonymous with fraud. It 
 is sometimes used in this sense when It is deemed 
 presumptive of, or approaching to, fraud. 1 
 Fonbl. Eq. 123 ; 3 Ch. Cas. 56,74, 103, 114. See 
 6 Ves. 337, 338 ; 16 id. 81, 86 ; 3 Bro. C. C. 326 ; 
 1 Cox, Ch. 340. 
 
 In Iiavr. The general rule is that when a 
 party or his counsel is taken by surprise, in a 
 material point or circumstance which could 
 not have been anticipated, and when want 
 of skill, care, or attention cannot be justly 
 imputed, and injustice has been done, a new 
 trial should be granted' Hill. New Trials, 
 ,521. Surprise may be good ground for anew 
 trial in criminal as in civil cases ; 10 E. ]j. & 
 E. 105 ; but in neither case is surprise arising 
 after verdict sufficient to warrant an applica- 
 tion to the discretion of the court ; 2 Parker, 
 673. 
 
 SURREBUTTER. In Pleading. The 
 plaintiffs answer to the defendant's rebutter. 
 It is governed by the same rules as the repli- 
 cation. See 6 Comyna, Dig. 185 ; 7 id. 389. 
 
 SURREJOINDER. In Pleading. The 
 plaintiffs answer to the defendant's rejoinder. 
 It is governed in every respect by the same 
 rules as the replication. Steph. PL 77 ; 
 Archb. Civ. PI. 284 ; 7 Comyns, Dig. 389. 
 
 SURRENDER. A yielding up of an es- 
 tate for life or years to him who has an im- 
 mediate estate in reversion or remainder, by 
 which the lesser estate is merged in the 
 
SURRENDER 
 
 700 
 
 SU8' PER COLL' 
 
 greater by mutual agreement, Co. Litt. 
 837 6. 
 The deed by which the surrender is made. 
 
 A surrender is of a nature directly opposite to 
 a release; for, as the latter operates by the 
 greater estate descending upon the less, the for- 
 mer is the falling of a less estate into a greater, 
 by deed. A surrender immediately divests the 
 estate of the surrenderor, and vests it in the sur- 
 renderee, even without the assent of the latter ; 
 Shepp. Touchst. 300, 301. 
 
 The technical and proper words of this 
 conveyance are, surrender and yield up ; but 
 any form of words by which the intention of 
 the parties is sufficiently manifested will ope- 
 rate as a surrender; Perkins, §607 ; 1 Term, 
 441 ; Comyns, Dig. Surrender (A). 
 
 The surrender may be express or implied. 
 The latter is when an estate incompatible 
 with the existing estate is accepted, or the 
 lessee takes a new lease of the same lands ; 
 16 Johns. 28 ; 1 B. 8e Aid. 50 ; 2 irf. 119 ; 5 
 Taunt. 518. And see 6 East, 86 ; 9 B. &C. 
 288 ; 7 Watts, 123 ; Cruise, Dig. tit. 32, c. 
 7 ; Comyns, Dig.; 4 Kent, 102. 
 
 SURRENDER OF A PREFERENCE. 
 The surrender by a preferred creditor, to the 
 assignee in bankruptcy, of all that he has re- 
 ceived under such preference, as a neces- 
 sary step, under the bankrupt law, to ob- 
 taining a dividend of the estate. 1 Dill. 544. 
 
 SURRENDER TO USES OF WILL. 
 Formerly a copyhold interest would not pass 
 by will unless it had been surrendered to the 
 use of the will. By stat. 55 Geo. Til. c. 
 192, this is no longer necessary ; 1 Steph. 
 Com. 639 ; Moz. & W. 
 
 SURRENDER OF CRIIVIINALS. The 
 
 act by which the public authorities deliver a 
 person accused of a crime, and who is found 
 in their jurisdiction, to the authorities within 
 whose jurisdiction it is alleged the crime has 
 been committed. See Extradition ; Fu- 
 gitives PKOM Justice. 
 
 SURRENDEREE. One to whom a sur- 
 render has been made. 
 
 SURRENDEROR. One who makes a 
 surrender ; as, when the tenant gives up the 
 estate and cancels his lease before the expir- 
 ation of the term. One who yields up a 
 freehold estate for the purpose of conveying 
 it. 
 
 SURROGATE (Lat. surrogatus, from 
 subrogare, or surrogare, to substitute). In 
 , English Law. A deputy or substitute of 
 the chancellor, bishop, ecclesiastical or ad- 
 miralty judge-, appointed by him. He must 
 take an oath of office. He can grant licenses, 
 hold courts, and adjudicate cases, to the same 
 extent and with the same authority as his 
 principal, provided his grant of powers has 
 been coextensive with those possessed by his 
 principal. The office has arisen by usage, 
 but is sanctioned by canon 128, atid recog- 
 nized by stat. 26 Geo. II. c. 33, 56 Geo. III. 
 c. 82, and 10 Geo. IV. c. 53, by which latter 
 act it was provided that the surrogates of the 
 
 arches and consistory of London are to con- 
 tinue after the death of the judges of those 
 courts till new appointments are made 1 
 Phill. Eccl. 205 ; 3 Burn, Eccl. Law, 667 
 
 In American Law. A term used in some 
 states to denote the judge to whom jurisdio- 
 tion of the probate of wills, the grant of ad- 
 ministration and of guardianship is confided. 
 In some states he is called surrogate, in 
 others, judge of probate, register, judge of 
 the orphans' cour^ etc. He is ordinanly a 
 county officer, with a local jurisdiction limited 
 to his county, 
 
 SURROGATE'S COURT. Inthe 
 United States, a state tribunal, with similar 
 jurisdiction to the court of ordinary, court of 
 probate, etc., relating to matters of probate, 
 etc. See above titles ; 2 Kent, 409, note h ; 
 New York. 
 
 SURVEY. The act by which the qnan- 
 tity of a piece of land is ascertained ; the 
 paper containing a statement of the courses, 
 distances, and quantity of land is also called 
 a survey. 
 
 A survey made by authority of law, and 
 duly returned into the land office, is a matter 
 of record, and of equal dignity with the 
 patent ; 3 A. K. Marsh. 226 ; 2 J. J. Marsh. 
 160. See 3 Me. 126; 5 id. 24; 14 Mass. 
 149 ; 1 Harr. & J. 201 ; 1 Ov. 199 ; iDev. 
 & B. 76. 
 
 By survey is also understood an examina. 
 tion ; and in this sense it is constantly em- 
 ployed in insurance and in admiralty law. 
 
 SURVIVOR. The longest liver of two 
 or more persons. 
 
 In cases of partnership, the surviving 
 partner is entitled to have all the effects of 
 the partnership, and is bound to pay all the 
 debts owing by the firm ; Gow, Partn. 15?'; 
 Wats. Partn. 364. He is, however, bound 
 to account for the surplus to the representa- 
 tives of his deceased partners, agreeably to 
 their respective rights. See Partnbrship. 
 
 A surviving trustee is generally vested with 
 all the powers of all the trustees, and the 
 surviving administrator is authorized to act 
 for the estate as if he had been sole adminis- 
 trator. As to the presumption of survivor- 
 ship, when two or more persons have perished 
 by the same event, see Death ; Life ; 
 Fearne, Cont. Rem. 4 ; 2 Pothier, Obi. 346 ; 
 17Ves. 482; 6 Taunt. 213; Cowp. 257. 
 
 The right of survivorship among joint- 
 tenants has been abolished, except as to es- 
 tates , held in trust, in Pennsylvania, New 
 York, Kentucky, Vii^nia, Indiana, Mis- 
 souri, Tennessee, Alabama, Georgia, North 
 and South Carolina. See Estatks in Joujt- 
 Tenanoy. In Connecticut it never existed; 
 1 Swift, Dig. 102 ; Washb. R. P. As to 
 survivorship among legatees, see 1 Turn. & 
 R. 413 ; 1 Bro. C. C. 574; 3 Eus.s. 217. 
 
 SUS' PER COLL'. In English Law. 
 In the English practice, a calendar is made 
 out of attainted criminals, and the judge 
 signs the calendar with their separate judg- 
 
SUSPENDER 
 
 701 
 
 SWINDLER 
 
 ments in the margin. In the case of a capital 
 felony it is written opposite the prisoner's 
 name, " let him be hanged by the neck," 
 which when the proceedings were in Latin, 
 was "suspendatur per collum," or, in the 
 abbreviated form "sus' per coll'." 4 Bla 
 Com. 403. 
 
 SUSPENDER. In Scotch Law. He 
 in whose favor a suspension is made. 
 
 In general, a suspender is required to give 
 caution to pay the debt in the event it shall 
 be found due. Where the suspender cannot, 
 from his low or suspected circumstances, pro- 
 cure unquestionable security, the lords admit 
 juratory caution ; but the reasons of suspen- 
 sion are in that case to be considered with 
 particular accuracy at passing the bill. Act. 
 S. 8 Nov. 1682; Erskine, Inat. 4. 3. 6. 
 
 SUSPENSE. When a rent, profit d 
 prendre, and the like, are, in consequence of 
 the unity of possession of the rent, etc. of 
 the land out of which they issue, not in esse 
 for a time, they are said to be in suspense, 
 tunc dormiunt; but they may be revived or 
 awakened. Co. Litt. 313 a. 
 
 SUSPENSION. A temporary stop of &. 
 right, of a law, and the like. 
 
 In times of war the habeas corpus act may 
 be suspended by lawful authority. 
 
 There may be a suspension of an officer's 
 duties or powers when he is charged with 
 crimes ; Wood, Inst. 510. An attorney, 
 solicitor, or ecclesiastical person may be sus- 
 pended from practising for a time ; see Dis- 
 bar. The Stock Exchange and many cor- 
 porations provide for the suspension as well 
 as expulsidn of members under certain cir- 
 cumstances; 47 Wise. 670; 86 111.441; 2 
 Brews. 571 ; see Dos Passes, Stock Brokers; 
 Expulsion. 
 
 'Suspension of a right in an estate is a 
 partial extinguishment, or an extinguishment 
 for a time. It differs from an extinguishment 
 in this : a suspended right may be revived ; 
 one extinguished is absolutely dead ; Bacon, 
 Ahr. Extinguishment (A). 
 
 The suspension of a statute for a limited 
 time operates so as to prevent its operation ^ 
 for the time ; but it has not the effect of a 
 repeal; 3 Dall. 365. For plea in suspension, 
 see Plea ; Abatkment. Pleas in suspen- 
 sion are not specifically abolished in England 
 by the Judicature Acts, though Ord. xlx. 
 rule 13, directs that no plea or defence shall 
 be pleaded in abatement ; Moz. & W. 
 
 In Scotch Law. That form of law by 
 which the effect of a sentence-condemnatory, 
 that has not yet received execution, is stayed 
 or postponed till the cause be again con- 
 sidered. Erskine, Inst. 4. 3. 5. Suspension 
 18 competent also, even where there is no 
 decree, for putting a stop to any illegal act 
 .whatsoever; Erskine, Inst. 4. 3. 7. 
 
 Letters of suspension bear the form of a 
 summons, which C(Jntains a warrant to cite 
 *he charger. 
 
 In Ecclesiastical La'w. An ecclesiastical 
 
 censure, by which a spiritual person is either 
 interdicted the exercise of his ecclesiastical 
 function or hindered from receiving the profits 
 of his benefice. It may be partial or total ; 
 for a limited time, or forever, when it is 
 called deprivation or amotion. Ayliffe, Par- 
 erg. 501. 
 
 SUSPENSION OF ARMS. An agree- 
 ment between belligerents, made for a short 
 time or for a particular place, to cease 
 hostilities between them. See Armistice ; 
 Tkuck. 
 
 SUSPENSION OF A RIGHT. The 
 act by which a party is deprived of the exer- 
 cise of his right for a time. 
 
 When a right is suspended by operation of 
 law, the right is revived the moment the bar 
 is removed ; but when the right is suspended 
 by the act of the party, it is gone forever. 
 See 1 RoUe, Abr. Extinguishment (h, M). 
 
 SUSPENSIVE CONDITION. One 
 which prevents a contract from going into 
 operation until it has been fulfilled ; as, if I 
 promise to pay you one thousand dollars on 
 condition that the ship Thomas Jefferson shall 
 arrive from Havre, the contract is suspended 
 until the arrival of the ship. 1 Bouvier, 
 Inst. n. 731. 
 
 SUTLER. A man whose employment is 
 to sell provisions and liquor to a camp. 
 
 ' By the articles of war no sutler is per- 
 mitted to sell any kind of liquor or victuals, 
 or to keep his house or shop open for the en- 
 tertainment of soldiers, after nine at night, 
 or before the beating of the reveillfie, or upon 
 Sundays during divine service or sermon, on 
 penalty of being dismissed all future sutling ; 
 all sutlers are subject to orders according to 
 the rules and discipline of war. 
 
 SUUS H.a:RES (Lat.). In CivU Law. 
 The proper heir, as it were, not called in 
 from outside. 
 
 Those descendants who were under the 
 power of the deceased at the time of his 
 death, and who are most nearly related to 
 him., Calvinus, Lex. 
 
 SUZERAIGN (Norman Fr. suz, under, 
 Etnd re or rey, king). A lord who possesses 
 a fief whence other fiefs issue. Diet, de 
 1' Academic Frangaise. A tenant in capite 
 or immediately under the king. Note 77. of 
 Butler & Hargrave's notes, Co. Litt. 1. 3. 
 
 SWAIN-GEMOTE. See Court of 
 
 SWEINMOTE. 
 
 SWEAR. To take an oath administered 
 by some officer duly empowered. See Affir- 
 mation ; Oath. 
 
 To use such profane language as is for- 
 bidden by law. This is generally punished 
 by statutory provisions in the several states. 
 See 7 Lea, 410 ; 85 N. C. 528 ; 25 Alb. L. 
 J. 423. 
 
 SWINDLER. A cheat; one guilty of de- 
 frauding divers persons. 1 Term, 748 ; 2 H. 
 Blackat. 531 ; Stark. Sland. 135. 
 
 Swindling is usually applied to a transac- 
 
SWORN CLEEKS IN CHANCERY 702 
 
 TABELLIO 
 
 tion where the guilty party procures the de- 
 livery to him, under a pretended contract, of 
 the personal property of another, with the 
 felonious design of appropriating it to his own 
 use ; 2 Russ. Cr. 130 ; Alison, Cr. Law, 
 250 ; 2 Mass. 406. 
 
 The terms cheat and swindler are not 
 actionable unless spoken of the plaintiff in 
 relation to his business; 6 Cush. 185; 10 
 How. Pr. 128. The words "you are living 
 by imposture," spoken of a person with the 
 intention of imputing that he is a swindler, 
 are not actionable ^er «e ; 8 C. B. 142. 
 
 SWORN CLERKS IN CHANCERS. 
 Officers who had charge of records, and per- 
 formed other duties in connection with the 
 court of chancery. Abolished in 1842. 
 
 SYB AND SOM. A Saxon form of 
 greeting, meaning peace and safety. T. L. 
 
 SYMBOLIC DELIVERY. The de- 
 livery of some thing as a representation or 
 sign of the delivery of some other. 
 
 Where an actual delivery of goods cannot 
 be made, a symbolical delivery of some par- 
 ticular thing, as standing for the whole, will 
 vest the property equally with an actual de- 
 livery; 1 Pet. 445 ; 8 How. 399 ; 6 Md. 10 ; 
 19 N. H. 419 ; 39 Me. 496 ; 11 Cush. 282 ; 
 3 Cal. 140. See 1 Sm. L. C. 83. 
 
 SYNALLAGMATIC CONTRACT. In 
 Civil Law. A contract by which each of 
 the contracting parties binds himself to the 
 other : such are the contracts of sale, hiring, 
 etc. Pothier, Obi. 9. 
 
 SYNDIC. In French Law. The as- 
 signee of a bankrupt. 
 One who is chosen to conduct the affairs 
 
 and attend to the concerns of a body corpo- 
 rate or community. In this sense the word 
 corresponds to director or manager. Rod- 
 man, Notes to Code de Com. p. 361 ; La. 
 Civ. Code, art. 429 ; Dalloz, Diet. Syndic. 
 SYNDICATE. A university committee. 
 A combination of persons or firms united for 
 the purpose of enterprises too large for indi- 
 viduals to undertake ; or a group of financiers 
 who buy up the shares of a company in order 
 to sell them at a profit by creating a scarcity 
 Moz. & W. 
 
 SYNDICOS (Gr. ow with, Jw^ cansej. 
 One chosen by a college, municipality, etc. to 
 defend its cause. Calv. Lex. See Syn- 
 dic. 
 
 SYN GRAPH (Gr. ew with, ypo^, to 
 write). A deed, bond, or other instrument 
 of writing, under the hand and seal of all 
 the parties. It was so caUed because the 
 parties wrote together. 
 
 Formerly such writings were attested by the 
 subscription and crosses of the witnesses ; after- 
 wards, to prevent frauds and concealments, they 
 made deeds of mutual covenant in a Ecript and 
 rescript, or in a, part and counterpart, and in the 
 middle between the two copies they wrote the 
 word syngraphus In large letters, which, being cut 
 through the parchment and one being delivered 
 to each party, on being afterwards put together 
 proved their authenticity. 
 
 Deeds thus made were denominated syngrapht 
 by the canonists, and by the common-lawyers 
 chirographs. 2 Bla. Com. 296. 
 
 SYNOD. An ecclesiastical assembly, 
 which may be general, national, provincial, or 
 diocesan. 
 
 SYNODAZ.es testes. See Sideb- 
 
 MEN. 
 
 T. 
 
 T. Every person convicted of felony 
 short of murder, and admitted to benefit of 
 clergy, was at one time marked with this 
 letter upon the brawn of the thumb. Abol- 
 ished by 7 & 8 Geo. IV. c. 27. Whart. Diet. 
 
 T. R. E. These letters, an abbreviation 
 for Tempore Regis Edwardi, " in the time of 
 King Edward" (the Confessor), often occur 
 in Domesday Book. 
 
 TABELLA (Lat.). In Civil Law. A 
 small table on which votes were often written. 
 Cicero, in RuU. 2. 2. Three tablets were 
 given to the judges, one with the letter A for 
 Absolutio, one with C for Condemnatio, and 
 one with N. L. for Non Liquet, not proven. 
 Calvinus, Lex. 
 
 TABELLIO (Lat.). In Roman Law. 
 An- oflacer among the Romans, who reduced 
 to writing, and into proper form, agreements, 
 contracts, wills, and other instruments, and 
 witnessed their execution. ,. 
 
 The term tabelllo is derived from the Latin 
 tabula, seu taiella, which. In this sense, signified 
 those tables or plates covered with wax which 
 were then used instead of paper. 8 Toullier, n. 
 53 ; DelauriSre, sur Kagneau, Notaire. 
 
 Tabelllones differed from notaries in many re- 
 spects : they had judicial jurisdiction in some 
 cases, and from their judgments there were no 
 appeals. Notaries were then the clerks or aiders 
 of the tabelllones ; they rejeived the agreements 
 of the parties which they reduced to short noto ; 
 and these contracts were not binding until they 
 were written in extenso, which was done by the 
 
TABLE-RENTS 
 
 703 
 
 TAKING 
 
 tikbelUones. Encyolop^die de M. D'Alembert, 
 TaieUione j Jacob, Law Diet. Tdbellion ; Merlin, 
 Expert. Notaire, § 1 ; S Giannone, Istoria dl Na- 
 poli, p. 86. 
 
 TABLE-RENTS. Eents paid to bishops 
 and other ecclesiastics, appropriated to their 
 table or housekeeping. Jacob. 
 
 TABLEAU OP DISTRIBUTION. In 
 Louisiana. A list of creditors of an insol- 
 vent estate, stating -what each is entitled to. 
 4 Mart. La. n. s. 535. 
 
 TABLES. A synopsis in which many 
 particulars are brought together in a general 
 view : as, genealogical tables, which are com- 
 posed of the names of persons belonging to a 
 family. As to the law of the Twelve Tables, 
 see Cfode. 
 
 TABULA IN NAUFRAGIO (Lat. a 
 plank in a wreck). In Englisli Law^. A 
 figurative term used to denote the power of 
 a third mortgagee, who, having obtained his 
 mortgage without any knowledge of a second 
 inortgage, may acquire the first incumbrance, 
 and squeeze out and have satisfaction before 
 the second. 2 Ves. Ch. 573; 1 Ch. Gas. 
 162; 1 Story, Eq. §§ 414, 415; Tacking. 
 
 TABULiEi. In Civil Law. Contracts 
 and written instruments of all kinds, espe- 
 cially wills. So called because originjilly 
 written on tablets and with wax. Galvinus. 
 
 TAC. A kind of customary payment by 
 a tenant. Blount, Ten. 155. 
 
 TAC FREE. Free from payments, etc. : 
 e. y. " tac free de omnibus propriis porcis 
 suis infra metas de C," i. e. paying nothing 
 for his hogs running within that limit. 
 Jacob. 
 
 TACIT (from Lat. taceo, tobe silent). That 
 which, although not expressed, is understood 
 from the nature of the thing or from the pro- 
 vision of the law ; implied. 
 
 TACIT LAW. A law which derives its 
 authority from the common consent of the 
 people without any legislative enactment. 1 
 Bouvier, Inst. 120. 
 
 TACIT RELOCATION. In Scotch 
 Law. The tacit or implied renewal of a 
 lease when the landlord instead of warning 
 a tenant has allowed him to continue without 
 making a new agreement. Bell, Diet. He- 
 location. 
 
 TACIT TACK. See Tacit Reloca- 
 tion. 
 
 TACITURNITY. In Scotland this signi- 
 fies laches in not prosecuting a legal claim, or 
 in acquiescing in an adverse one. Moz. & W. 
 
 TACK. In Scotch Law. A contract 
 of location by which the use of land or any 
 other immovable subject is set to the lessee 
 or tacksman for a certain yearly rent, either 
 in money, the fruits of the ground, or ser- 
 vices. Erskine, Inst. 2. 6. 8. This word is 
 nearly synonymous with lease. 
 
 TACKING. In English Law. The 
 
 union of securities given at difiierent times. 
 
 so as to prevent any intermediate purchaser's 
 claiming title to redeem or otherwise dis- 
 charge one lien which is prior, without re- 
 deeming or discharging other liens also which 
 are subsequent, to his own title. Jeremy, 
 Eq. Jur. 188-191 ; 1 Story, Eq. Jur. § 412. 
 
 Jt is an established doctrine in the Eng- 
 lish chancery that a bona fide purchaser and 
 without any notice of a defect in his title at 
 the time of the purchase may lawfully buy 
 any statute, mortgage, or incumbrance, and 
 if he can defend by those at law his adver- 
 sary shall have no help in equity to set those 
 incumbrances aside, for equity will not dis- 
 arm such a purchaser. And as mortgagees 
 are considered in equity as purchasers pro 
 tanto, the same doctrine has extended to 
 them, and a mortgagee who has advanced 
 his money without notice of any prior in- 
 cumbrance may, by getting an assignment 
 of a statute, judgment, or recognizance, pro- 
 tect himself from any incumbrance subsequent 
 to such statute, judgment, or recognizance, 
 though prior to his mortgage ; that is, he will 
 be allowed to tack or unite his mortgage to 
 such old security, and will by that means be 
 entitled to recover all moneys for which such 
 security was given, together with the money 
 due on his mortgage, before the prior mort- 
 gagees are entitled to recover any thing ; i 
 Cruise, Dig. t. 15, c. 5, s. 27 ; 1 Vern. 188 ; 
 1 White & T. L. C. Eq. 615, notes. Tacking 
 was abolished by sec. 7 of the Vendor and 
 Purchaser Act, stat. 37 and 38 Vict. c. 78, 
 but that section is repealed by sec. 129 of the 
 Land Titles and Transfer Act of 38 & 39 
 Vict. c. 87. Moz. & W. , 
 
 This doctrine is inconsistent with the laws 
 of the several states, which require the re- 
 cording of mortgages ; and does not exist to 
 any extent in the United States ; 1 Gaines, 
 Gas. 112; 2 Pick. 517; 12 Conn. 195; 14 
 Ohio, 318; 11 S. & R. 208; 1 White & 
 T. L. C. Eq. 615 ; 1 Johns. Ch. 399; Bisph. 
 Eq. § 159. A rule apparently analogous 
 may, however, be found in those cases where 
 a mortgage is given to secure future advances, 
 and where the mortgagee is allowed to recover 
 sums subsequently advanced, as against a 
 mesne mortgage; Bisph. Eq. § 159. 
 
 TAIL. See Estate Tail. 
 TAIL AGE. See Tallage. 
 TAINT. A conviction of felony, or, the 
 person so convicted. Cowel. See Attaint. 
 
 TAKE. A technical expression which 
 signifies to be entitled to : as, a devisee will 
 take under the will. 
 
 To seize: as, to take and carry away, either 
 lawfully or unlawfully. 
 
 To choose : e. g. ad capiendas assisas, to 
 choose a jury. 
 
 To obtain": e. g. to take a verdict in court, 
 to get a verdict. 
 
 TAKING. In Criminal Law, Torts. 
 
 The act of laying hold upon an article, with 
 or without removing the same. A felonious 
 
TAKE UP 
 
 704 
 
 TARDE VENIT 
 
 taking is not sufficient, without a carrying 
 away, to constitute the crime of larceny. See 
 Dearsl. 621. And when the taking has been 
 legal, no subsequent act will make it a crime ; 
 1 Mood. Cr. Cas. 160. 
 
 The taking is either actual or constructive. 
 The former is when the thief takes, without 
 any pretence of a contract, the property in 
 question. 
 
 A constructive felonious taking occurs when 
 under pretence of a contract the thief ob- 
 tains the felonious possession of goods : as, 
 when under the pretence of hiring he had a 
 felonious intention, at the time of the pre- 
 tended contract, to convert the property to 
 his own use. 
 
 When property is left through inadvert- 
 ence with a person, and he conceals it animo 
 furandi, he is guilty of a felonious taking 
 and may be convicted of larceny ; 1 7 Wend. 
 460. 
 
 But when the owner parts with the property 
 willingly, under an agreement that he is never 
 to receive the same identical property, the 
 taking is not felonious : as, when a person 
 delivered to the defendant a sovereign to get 
 it changed, and the defendant never returned 
 either with the sovereign or the change, this 
 was not larceny ; 9 C. &P. 741. See 2 B. & P. 
 608; Co. 3d Inst. 408 ; Larceny ; Robbery. 
 
 The wrongful taking of the personal pro- 
 perty of another, when in his actual posses- 
 sion, or such taking of the goods of another 
 who has the right of immediate possession, 
 subjects the tort-feasor to an action. For ex- 
 ample, such wrongful taking will be evidence 
 of a conversion, and an action of trover may 
 be maintained ; 2 Saund. 47 ; 3 Willes, 55. 
 Trespass is a concurrent remedy in such a 
 case; 3 Wils. 336. Replevin maybe sup- 
 ported by the unlawful taking of a personal 
 chattel. See Conversion ; Trespass ; 
 Tbovkb ; Replevin. 
 
 TAKE UP. An indorser or acceptor is 
 said to take up, or retire, a bill when he 
 discharges the liability upon it. In such a 
 case, the indorser would hold the instrument 
 with all his remedies intact ; while the accep- 
 tor would extinguish all the remedies on it. 
 One who accepts a lease is also said to take 
 it up. 
 
 TALE. In English Law. The ancient 
 name of the declaration or count. 3 Bla. 
 Com. 293 
 
 TALES (Lat. talis, such, like). A num- 
 ber of jurors added to a deficient panel suffi- 
 cient to supply the deficiency. 
 
 A list of such jurymen as were of the tales, 
 kept in the king's bench office in England. 
 
 TALES DE CIRCTTMSTANTIBtTS 
 
 (Lat. a like number of the bystanders). A 
 sufficient number of jurors selected from the 
 bystanders to supply a deficiency in the panel. 
 
 The order of the judge for taking such by- 
 standers as jurors. 
 
 Whenever from any cause the panel of 
 jurors is insufficient, the judge may issue the 
 
 above order, and the officer immediately exe- 
 cutes it; see 2 Hill, So. C. 381 ; Coxe N 
 J. 283 ; 1 Blackf. 65 ; 2 H. & J. 426 ; i 
 Pick. 43, n. The number to be drawn on 
 successive panels is in the discretion of the 
 court; 17 Ga. 497. 
 
 TALITER FROCESSUM EST. "So 
 it has proceeded ;" words formerly used in 
 pleading, by which a defendant, in justifying 
 his conduct by the process o< an inferior court, 
 alleged the proceedings in such inferior court. 
 Steph. PI. 5th ed. p. 869 ; Moz. & W. 
 
 TALLAGE OR TALLIAGE (Fr. tailltr 
 to cut). In English Law. A term used to 
 denote subsidies, taxes, customs, and, indeed, 
 any imposition whatever by the government 
 for the purpose of raising a revenue. Bacon, 
 Abr. Smuggling, etc. (B); Fort. De Laud. 
 26; Madd. Exch. c. 17; Co. 2d Inst. 531. 
 
 TALLAGlUM_(perhaps from Fr. taille, 
 cut off"). A term including all taxes. Co. 
 2d Inst. 532 ; Stat, de tal. non concedendo, 
 temp. Edw. I.; Stow, Annals, 445; 1 Sharsw. 
 Bla. Com. 311*. Chaucer has talaigicrs for 
 "tax-gatherers" 
 
 TALLY (Fr. tailler ; It. tagliare, i.e. 
 scindere, to cut off). A stick cut into two 
 parts, on each whereof is marked, with 
 notches or otherwise, what is due between 
 debtor and creditor. Hence the tallier of the 
 exchequer is now called the teller. Lex. 
 Constit. 205 ; Cowel. One party must have 
 one part, and the other the other, and they 
 must match. Tallies in the exchequer were 
 abolished by 23 Geo. III. c. 82, and were or- 
 dered to be destroyed in 1834. They were 
 thereupon used in such quantities to heat the 
 stoves in the house of lords that it is supposed 
 they were the cause of the fire which de. 
 stroyed both houses of parliament. There 
 was the same usage in France. Diet, de 
 I'Acad. Fran?.; Pothier, Obi. pt. 4, c. 1, 
 art. 2, § 8 ; 2 Reeves, c. 11, p. 253. 
 
 TALZIE, TAILZIE. In Scotch Law. 
 Entail. 
 
 TANGIBLE PROPERTT. That 
 which may be felt or touched : it must neces- 
 sarily be corporeal, but it may be real or per- 
 sonal. 
 
 TANISTRY (a thanis). In Jrish Law. 
 A species of tenure founded on immemorial 
 usage, by which lands, etc. descended, 
 seniori et dignissimo viri sanguinis et eogno- 
 minis, i.e to the oldest and worthiest man of 
 the blood and name. Jacob, Law Diet. 
 
 TARDE VENIT (Lat.). In Practice. 
 The name of a return made by the sherifi' to 
 a writ, when it came into his hands too late 
 to be executed before the return day. 
 
 The sheriff" is required to show that he has 
 yielded obedience to the writ, or give a good 
 excuse for his omission ; and he may say, 
 quod breve adeo tarde venit quod exequi non 
 potuit. It is usual to return the writ with 
 an indorsement of tarde venit. Comyns, 
 Dig. Retorn (D 1). 
 
TARE 
 
 705 
 
 TAX 
 
 TAKE. An allowance in the purohase 
 and sal's of merchandise for the weight of 
 the box, bag, or cask, or other thing, in which 
 the goods are packed. It is also an allowance 
 made for any defect, waste, or diminution in 
 the weight, quality, or quantity of goods. 
 It differs from Tret, which see. 
 
 TARIFF. Customs, duties, toll, or tri- 
 bute payable upon merchandise to the gene- 
 ral government is called tariff; the rate of 
 customs, etc. also bears this name, and the 
 list of articles liable to duties is also called 
 the tariff. 
 
 TAVERN. A place of entertainment ; a 
 house kept up for the accommodation of 
 strangers. Webster, Diet. Originally, a 
 house for the retailing of liquors to be drunk 
 on the spot. Webster, Diet. 
 
 In almost all the states the word has come 
 to mean the same as inn, with no particular 
 reference to the sale of liquors. See 2 Kent, 
 597*, note a. Tavern has been held to in- 
 clude "hotel;" 46 Mo. 593 ; contra, 7 Ga. 
 296. 
 
 These are regulated by various local laws. 
 For the liability of tavern-keepers, see Story, 
 Bailm.J 7; 2 Kent, 458; 12 Mod. 487; 
 Jones, Bailm. 94 ; 1 Bla. Com. 430 ; 1 Rolle, 
 Abr. (3 F); Bacon, Abr. Inn, etc.; Inn; 
 Innkkepkk. 
 
 TAX. A pecuniary burden imposed for 
 the support of the government. 17 Wall. 
 322. The enforced proportional contribu- 
 tion of persons and property, levied by the 
 authority of the state for the support of gov- 
 ernment, and for all public needs. 58 Me. 
 691 ; Cooley, Tax. 1. Burdens or charges 
 imposed by the legislative power of a state 
 upon persons or property, to raise money for 
 public purposes. Blackw. Tax Titles, 1 ; 20 
 Cal. 318. See 64 Penn. 154; 20 Wall. 
 655; 27 Iowa, 28; 34 Cal. 432; 27 Ind. 
 62. Taxes are not " debts ;" 20 Cal. 318. 
 
 Taxes differ from subsidies, in being cer- 
 tain and orderly, and from forced contribu- 
 tions, etc., in that they are levied by authority 
 of law, and by some rule of proportion which 
 is intended to insure uniformity of contribu- 
 tion, and a just apportionment of the bur- 
 dens of government ; Cooley, Tax. 2. See 
 51 Penn. 9. No matter how equitable a tax 
 may be, it is void unless legally assessed ; 8 
 Cush. 667 ; and, on the other hand, the in- 
 justice of a particular tax cannot defeat it 
 when it is demanded under general rules 
 prescribed by the legislature for the general 
 good ; Cooley, Tax. 3 ; 17 Mass. 52. A sov- 
 ereign power has the unlimited power to tax 
 all persons or property within its jurisdiction ; 
 21 Vt. 152 ; 4 Wheat. 316 ; 20 Wall. 46 ; 66 
 N. C. 361 ; but the power of taxation of a 
 state is limited to persons, property, and 
 business within her jurisdiction ; thus bonds 
 issued by a railroad company and held by 
 non-residents of the state in which the com- 
 pan;^ was incorporated, are property beyond 
 the jurisdiction of that state ; 15 Wall. 300. 
 Vol. II.— 45 
 
 Taxes are classified as direct, which in- 
 cludes "those which are assessed upon the 
 property, person, business, income, etc., of 
 those who pay them ; and indirect, or those 
 which are levied on commodities before they 
 reach the consumer, and are paid by those 
 upon whom they ultimately fall, not as taxes, 
 but as part of the market price of the com- 
 modity." Cooley, Tax. 5. The latter in- 
 clude duties upon imports and stamp duties 
 levied upon manufactures ; ibid. The term 
 "direct taxes" in the federal constitution is 
 used in a peculiar sense, and such taxes are 
 perhaps limited to capitation and land taxes ; 
 3 Dall. 171 ; 7 Wall. 433 ; 8 id. 533. 
 
 Direct taxes within the meaning of the con- 
 stitution are only capitation taxes and taxes 
 on real estate ; 102 U. S. 58fi. 
 
 Judge Cooley gives, as the most common 
 taxes : — 
 
 CapHation taxes, which can only in a few cases 
 be said to be either just or politic. 
 
 Land taxes. These are usually laid by value. 
 
 Souse taxes. These, except when the houses 
 are treated as appurtenant to the lands, have 
 been measured by rents, and sometimes by 
 hearths and windows. Both of these latter have 
 been laid in England, but are now abolished. 
 
 Income taxes. These may be on all incomes, 
 or the smaller incomes may be exempted ; and 
 sometimes there has been an increasing percent- 
 age on larger incomes. This tax is objectionable 
 as being inquisitorial, and as leading to eva- 
 sion. 
 
 Taxes on employments. This usually takes the 
 form of an excise tax on the license to pursue 
 the employment. See as to such a tax on law- 
 yers, 83 Gratt. 464. 
 
 Taxes on the carriage of property. These may 
 be laid by licenses, by taxing the vehicles em- 
 ployed, by tonnage duties, etc. 
 
 taxes on wages. These have been unusual in 
 modem times. 
 
 Taxes on servants, horses, carriages, etc. 
 
 .Taxes on the interest of money. These are ob- 
 jectionable for the same reasons that apply to 
 income taxes. 
 
 Taxes on dividends are more easily collected, 
 and are a common method of raising revenue. 
 
 Taxes on legacies and inheritances. These may 
 be on direct or collateral succession. See, as to 
 their validity, 14 Gratt. 422 ; 28 Md. 577. 
 
 Taxes on sales, Trills of exchange, etc. These, 
 when laid by way of stamp duties, are, perhaps, 
 the least objectionable of all taxes. 
 
 Taxes of legal process may be Imposed as stamp 
 fees on process, fees for permission to begin 
 suit, etc. 
 
 Taxes on consumaVle luxuries, as whiskey, etc. 
 
 Taxes on exports. These are usually impolitic, 
 either as tending to diminish exports, or as lead- 
 ing to retaliatory legislation. The states cannot 
 levy export duties without the consent of con- 
 gress, and congress cannot lay any export duty 
 on articles exported from any state. Art. 1, §§ 
 ix., X. of the constitution. 
 
 Taxes on imports have been the chief reliance 
 of the federal government. 
 
 Taxes on corporate franchises have been a 
 source of large revenue in some states, while, in 
 other states, corporations have been taxed, like 
 individuals, on their property. See 18 Wall. 231. 
 
 Taxes on the value of property have been the 
 main reliance in the United States. As to taxes 
 on personalty it is objected, among other things. 
 
TAX 
 
 706 
 
 TAX 
 
 , that their asBesement Is necessarily Inquisitorial, 
 ' that they hold out constant temptations to tax- 
 payers to defraud the state, and that such taxa- 
 tion requires a large addition to the revenue offi- 
 cers, and renders necessary more frequent assess- 
 ments than would be required were taxation 
 confined to subjects more permanent in cha- 
 racteristics and ownership. 
 
 Stockholders in a moneyed corporation are 
 liable to taxation on their shares, although the 
 capital stock has also paid a tax ; 6 Baxt. 553 ; 
 s. 0. 33 Am. Eep. 533, and note ; but see cases 
 cited in this note. 
 
 Taxes on amusements. These are in the na- 
 ture of a tax on luxuries, and therefore unob- 
 jectionable. 
 
 The' state may undoubtedly require the pay- 
 ment of taxes in kind, that is, in products, or in 
 gold or silver bullion, etc. ; Cooley, Tax. 13 ; see 
 30 Cal. 318 ; 7 Wall. 71. 
 
 The power to tax is vested entirely in the 
 legislative department. No matter how op- 
 pressive taxation may be, the judiciary can- 
 not interfere on that account ; 8 Wall. 583 ; 
 18 id. 206; 47 Miss. 367. It can only check 
 excess pf authority. The right to lay taxes 
 cannot be delegated by the legislature to any 
 other department of the government ; 52 
 Mo. 133 ; 47 Cal. 456 ; 4 Bush, 464 ; except 
 that municipal corporations may be authorized 
 to levy and collect local taxes ; Cooley, Tax. 
 51 ; 49 Mo. 559, 574 ; 73 Penn. 448. 
 
 The constitutional guaranty which declares 
 that no person shall be deprived of property, 
 etc., except by the judgment of his peers or 
 the law of the land does not necessarily ap- 
 ply to the collection of taxes ; 23 Ga. 566 ; 
 Cooley, Tax. 37 ; taxes have been said to be 
 recoverable, not only without a jury, but with- 
 out a judge ; 6 T. B. Monr. 641. Though 
 differing from procedure in courts of justice, 
 the general system of procedure for the levy 
 and collection of taxes established in this 
 country, is due process of law ; 104 U. S. 78 ; 
 96 U. S. 97. 
 
 Persons and property not within the limits 
 of a state cannot be taxed by the state ; 
 Cooley, Tax. 42 ; but when a person is resi- 
 dent within a state, his personal property 
 may be taxed wherever it is, on the ground 
 that in contemplation of law its situs is the 
 place of his residence; 16 Pick. 572; 46 
 N. H. 389 ; 3 Oreg. 13 ; and the stock of a for- 
 eign corporation may be taxed to the resident 
 owner; 82 N. C. 420; s. c. 33 Am. Eep. 
 692 ; but the mere right of a foreign creditor 
 to receive from his debtor within the state the 
 payment of his demand cannot be subjected 
 to taxation within the, state; 15 Wall. 300; 
 see supra. So shares in a corporation are 
 the shares of the stockholder wherever he 
 may have his domicil, and can only be taxed 
 bv the jurisdiction to which his person is sub- 
 je'ct; 16 Pick. 572; SO N. J. 13; 49 Penn. 
 526 ; subject to the qualification that a for- 
 eign corporation must always accept the priv- 
 ilege of doing business in a state on such 
 terms as the state may see fit to exact ; Cooley, 
 Tax. 16. Under a statute providing for tax- 
 ation of all personal property within the state 
 owned by non-residents, a tax cannot be im- 
 
 posed on choses in action, owned by a non- 
 resident and left with an attorney in the 
 state for collection, nor on municipal bonds 
 so owned and temporarily on deposit in a 
 bank in the state for safe keeping ; 59 Ind. 
 472; s. C. 26 Am. Rep. 87. 
 
 Tangible personal property situate within a 
 state may be taxed there without regard to 
 the residence of the owner; 48 N. Y. 390- 
 21 Vt. 152; 52 Penn. 140; and the real 
 estate of a non-resident may be taxed where 
 it is situated; 4 Wall. 210; 16 Mass. 208; 
 see, generally, 15 Am. L. Reg. n. s. Gietseq. 
 . A state may bind itself by a contract, based 
 upon a connderation, to refrain from exer- 
 cising the right of taxation in a particnlar 
 case; 15 Wall. 460; 16 id. 244; 6 Conn. 
 223 ; 8. c. 16 Am. Dec. 46 n. 
 
 The agencies selected by the federal go- 
 vernment for the exercise of its functions 
 cannot be taxed by the states : for instance, 
 a bank chartered by congress as the fiscal 
 agent of the government; 4 Wheat. 316; 
 the loans of the United States ; 2 Wall. 220 ; 
 7 id. 16, 26; the United States revenue 
 stamps; 101 Mass. 329; the salary of a 
 federal officer ; 16 Pet. 435 ; see 9 Mete. 73. 
 On the other hand, the federal government 
 cannot tax the corresponding agencies of the 
 states; 12 Wall. 418; 105 Mass. 49; s. c. 
 7 Am. Rep. 499 ; including the salary of a 
 state officer; 11 Wall. 113; and a state mu- 
 nicipal corporation; 17 Wall. 322; but rail- 
 road corporations are not included in this 
 exemption ; 9 Wall. 579. The states have 
 no power to tax the operations of the Union 
 Pacific R. R. Company, which was chartered 
 by congress, but may tax their property ; 18 
 Wall. 5. 
 
 A state tax on telegraphic messages sent 
 out of the state is unconstitutional as a regu- 
 lation of interstate commerce, and so taxes on 
 government messages are void, as burdens 
 upon the agencies of the federal government ; 
 4 Morr. Transcr. 447 ; a state tax on freights 
 transported from state to state is a regulation 
 of commerce, and therefore void ; 15 Wall. 
 232. 
 
 But a state tax upon the gross receipts of 
 a railroad company is not repugnant to the 
 federal constitution, although they are made 
 up in part from articles transported from state 
 to state. There is a distinction between a 
 tax upon freights carried between states and 
 a tax upon the fruits of such transportation 
 after they have become mingled with the 
 other properly of the carrier ; 1 6 Wall. 284 ; 
 nor is such a tax a tax upon exports or im- 
 ports or upon interstate transportation ; id. 
 
 The federal constitution provides that no 
 state shall, without consent of congress, (1) 
 lay any imposts or duties on exports or im- 
 ports, except what may be necessary for exe- 
 cuting its inspection laws. See 24 How. 
 169; 8 Wall. 123; (2) lay any duties ot 
 tonnage. Under this clause a tax on vessels 
 at a certain sum per ton is forbidden ; 20 
 Wall. 577. Congress having the power to 
 
TAX 
 
 707 
 
 TAX 
 
 regulate commerce with foreign nations, etc., 
 the states cannot tax the commerce which is 
 regulated by congress ; 4 Wheat. 316; but 
 a tax may be laid upon merchandise in the 
 original packages that has been the subject of 
 commerce and has been sold by the im- 
 porter; 5 Wall. 476; 8 id. 110; locomo- 
 tives may be taxed as property, but not 
 their use as vehicles of commerce between 
 the states ; 2 Abb. U. S. 323. See 15 Wall. 
 232, 284. See Tonnage Tax; Commerce. 
 No tax is valid which is not laid for a 
 public purpose ; 20 Wall. 655 ; 58 Me. 590 ; 
 2 Dill. 353 ; such are (according to Cooley, 
 Tax. 81) : to preserve the public order ; to 
 malce compensation to public officers, etc. ; 
 to erect, etc., public buildings ; to pay the 
 expenses of legislation, and of administering 
 the laws, etc. ; also, to provide secular in- 
 struction; Cooley, Tax. 84; 104 U. S. 81; 
 see 10 Mete. 508 ; 30 Mich. 69 ; but not in 
 a school founded by a charitable bequest, 
 though a majority of the trustees were to be 
 chosen (but from certain religious societies) 
 by the inhabitants of the town ; 103 Mass. 
 94. See, also, 24 Wise. 350. A town may 
 tax itself for the erection of a state educa- 
 tional institution within its limits ; 1 2 Allen, 
 500; see 47 N. Y. 608. The support of 
 public charities is a public purpose, and money 
 raised by taxation may be applied to private 
 charitable institutions. Taxation for the pur- 
 pose of giving or loaning money to private 
 business enterprises is illegal ; 111 Mass. 454 ; 
 60 Me. 124; s. c. 11 Am. Eep. 185, and 12 
 Am. L. Reg. n. s. 493 and n. In some 
 cases, governments have applied public funds 
 to pay equitable claims (upon which no legal 
 right exists), such as for the destruction of 
 private property in war, or for loss incurred 
 in a contract for the construction of a public 
 work: Cooley, Tax. 91; see 108 Mass. 408; 
 19N.Y. 116. Taxes maybe levied for the con- 
 struction and repair of canals, railroads, high- 
 ways, roads, etc.; Cooley, Tax. 94; and the con- 
 struction of a free bridge in a city ; 58 Penn. 
 320 ; and for the payment of the public debt, if 
 lawfully incurred ; and for protection against 
 fire; 104 U. S. 81. A preponderance of au- 
 thority favors the proposition that the legis- 
 latures of states may confer upon municipali- 
 ties the right to take stock in railroad corpo- 
 rations, and to lend their credit to such, and 
 to levy taxes to enable them to pay the debt 
 incurred ; the decision has turned upon the 
 question whether this is a public purpose ; 20 
 Wall. 655. Taxation to provide municipal 
 gas and water works is lawful; 43 Ga. 67; 
 27 Vt. 70; and for the preservation of the pub- 
 lic health; 31 Penn. 175, 185; Cooley, Tax. 
 101. Municipalities may pay money by way 
 of bounties to those who volunteer as soldiers 
 in times of actual or threatened hostility ; 50 
 Penn. 150; 56 id. 466; 52 Me. 590; but 
 not to provide amusements for the people, or 
 to celebrate the declaration of independence, 
 etc.; I Allen, 103; 2 Denio, 110; though 
 
 the purchase and support of public parks is 
 lawful; Cooley, Tax. 93. 
 
 It is said to be an essential rule of taxation 
 that the purpose for which a tax is levied 
 " should be one which in an especial manner 
 pertains to the district within which it is 
 proposed that the contribution shall be col- 
 lected. ... A state purpose must be 
 accomplished by a state taxation, a county 
 purpose by a county taxation, etc." Cooley,. 
 Tax. 104, 105. Thus an act imposing an 
 assessment upon lands fronting on a county 
 road for the purpose of paving the road in a 
 costly manner, not for the local but for the 
 general public benefit, was held void; 69 
 Penn. 352 ; 8. C. 8 Am. Rep. 255. 
 
 Apportionment is a necessary element of 
 taxation ; it consists in a selection of the sub- 
 jects to be taxed, and in laying down the rule 
 by which to measure the contribution which 
 each of those subjects shall make to the tax. 
 Apportionment is therefore a matter of legis- 
 lation; Cooley, Tax. 175. See 4 N. Y. 419. 
 The same writer arranges all taxes under three 
 classes : specific taxes, ad valorem taxes, and 
 taxes apportioned by special benefit, and lays 
 down the following general rules : (1) Though 
 the districts are established at the discretion 
 of the legislature, the basis of apportionment 
 which is fixed upon must be applied through- 
 out the district. See 25 111. 557; 25 Ark. 
 289. (2) Though the apportionment must 
 be general, a diversity in the methods of col- 
 lection violates no rule of right, and is as 
 much admissible as a diversity in police regu- 
 lations. Indeed, this may, under some cir- 
 cumstances, be an absolute necessity. ■ (3) 
 It is no objection to a tax that the rule of ap- 
 portionment which has been provided for it 
 fails in some instances, or even in many in- 
 stances, of enforcement. (4) It is not to be 
 extended to embrace persons or property out- 
 side the district. If there are any exceptions 
 to the rule, they must stand on very special and 
 peculiar reasons. (5) Although exemptions 
 may be made, special and invmious discrimi- 
 nations against individuals are illegal. 
 
 It has been said that perfect equality in the 
 assessment of taxes is unattainable, and that 
 approximation to it is all that can be had. it 
 is only when statutes are passed which impose 
 taxes on false and unjust principles, or oper- 
 ate to produce gross inequality, so that they 
 cannot be deemed in any just sense propor- 
 tional in their effect on those who are to bear 
 the public charges, that courts can interpose 
 and declare such enactments void ; 5 Allen, 
 426; see 57 Penn. 433; 19 id. 258; 73 
 irf. 370; 3 Bland, Ch. 186. 
 
 The constitution of Illinois provides that 
 taxation shall be uniform, and uniform as to 
 the class upon which it operates ; under these 
 provisions a statute is not unconstitutional 
 which prescribes a different rule of taxation 
 for railroad companies from that for individ- 
 uals; 92U. S. 575. This case further held that 
 the capital stock, franchises, and all the real and 
 
TAX 
 
 708 
 
 TAX DEED 
 
 personal property of corporations are justly 
 liable to taxation in the place where they do 
 business and by the state which creates them ; 
 and a rule which ascertains the value of all 
 this by ascertaining the cost value of the 
 funded debt and of the shares of the capital 
 stock as the basis of assessment is probably 
 as fair as any other, all modes being more or 
 less imperfect. 
 
 A constitutional provision to the effect that 
 taxation shall be uniform is met by taxation 
 which is uniform among all persons engaged 
 in the same business ; 14 La. An. 318. Such 
 provisions are usually held not to apply to 
 municipal assessments ; see Dill. Mun. Corp. 
 § 746 et seq. 
 
 Taxes may be levied upon occupations, 
 even to the extent of duplicating the burden 
 to the one who pays it, as by taxing both a 
 merchant's stock and his gross sales ; Cooley, 
 Tax. 385. Taxes on the privilege of follow- 
 ing an occupation are usually imposed by way 
 of a license, which is a prerequisite to the 
 right to carry on the business. There is a 
 distinction between a license granted as a con- 
 dition precedent before a thmg can be done 
 and a tax assessed on the busine'ss which that 
 license may authorize one to engage in ; 50 
 Ga. 530 ; 42 Ga. 596. 
 
 Such taxes have been laid on bankers, 
 auctioneers, lawyers, 12 Mo. 268 ; 23 Gratt. 
 464; 4 Tex. App. 312; 17 Fla. 169; 8. c. 
 35 Am. Rep. 93 ; clergymen, 29 Penn. 
 226 ; Peddlers, etc. See 5 Wall. 462 as to 
 federal license taxes. 
 
 Municipal assessments made for local im- 
 provements, though resting for their founda- 
 tion upon the taxing power, are distinguish- 
 able in many ways from taxes levied for 
 general state or municipal purposes. A local 
 assessment upon the property benefited by a 
 local improvement may be authorized by the 
 legislature, but such an assessment must be 
 based upon benefits received by the property 
 owner over and above those received by the 
 community at large. The legislature may 
 make provision for ascertaining what property 
 will be specially benefited and how the bene- 
 fits shall be apportioned. The assessments 
 may be made upon all the property specially 
 benefited according to the exceptional benefit 
 which each parcel of property actually and 
 separately receives. Where the property is 
 urban and plotted into blocks with lots of 
 equal depth, the frontage rule of assessment is 
 generally, bnt not always, a competent one for 
 the legislature to provide. This rule is, in 
 the long run, a just one, especially as to side- 
 walks, sewers, grading and paving. (See 30 
 Mich. 24 ; but see, contra ; 82 Penn. 360 ; 
 8. c. 22 Am. Kep. 760 ; 9 Heisk. 349.) The 
 legislature may, under some circumstances, 
 authorize the assessment of the lots benefited, 
 in proportion to their area (but see 35 Mich. 
 155). Whether it is competent for the legis- 
 lature to declare that the whole of an im- 
 provement of a public nature shall be assessed 
 upon the abutting property, and other prop- 
 
 erty in the vicinity, is in doubt. The earlier 
 cases so held ; but since many state consti- 
 tutions have made provision for equality of 
 taxation, several courts have held that the 
 cost of a local improvement can be assessed 
 upon particular property only to the extent 
 that it is especially and particularly bene- 
 fited, and that as to the excess, it must be 
 borne by the public. See 82 Penn. 360 ; 69 
 id. 352; 18 N. J. Eq. 519. This whole 
 subject is fully treated by Judge Dillon in his 
 work on Municipal Corporations, where he 
 summarizes the subject as above. 
 
 As to exemptions from taxation : In cases 
 where there is no constitutional provision such 
 as exists in many of the states. Judge Cooley 
 (Taxation, 145) deduces these rules: (1) 
 The general right to make exemptions is in- 
 volved in the right to a'pportion taxes, and 
 must be understood to exist wherever it is not 
 forbidden. See 73 Penn. 448 ; 27 Mo. 464; 
 24 Ind. 391. (2) Exemptions thus granted 
 on considerations of public policy may be re- 
 called whenever the legislative view of public 
 policy shall have changed. See 24 How. 
 300; 13 Wall. 373; 47 Cal. 222; 15 M. 454. 
 (3) The intention to exempt must in any case 
 be expressed in clear and unambiguous terms. 
 See 53 Penn. 219; 47 N. Y. 501; 49 Mo. 
 490; 104 Mass. 470. (4) All exemptions 
 are to be strictly construed ; 18 Wall. 225. 
 
 The courts do not favor exemptions of prop- 
 erty; 76 N. Y. 64. Where the constitution 
 provided that the legislature might exempt 
 from taxation " institutions of purely pnbhc 
 charity," it was held that the phrase did not 
 necessarily refer to institutions solely con- 
 trolled by the state, but extended to private 
 institutions of purely public charity and not 
 administered for private gain ; and that the 
 essential features of a public use are that it 
 is not confined to privileged individuals, bnt 
 is open to the indefinite public; 86 Penn. 
 306. The residence of a clergyman is not 
 exempt as a "building for religious worship" 
 because it contains one room set apart as a 
 religious chapel; 12 R. I. 19; 8. c. 34 Am. 
 Rep. 597. See, generally. Burroughs, Tax- 
 ation ; Blackwell, Tax Titles. 
 
 TAX DEED. An instrument whereby 
 the ofiicer of the law undertakes to convey 
 the title of the rightful proprietor to the pur- 
 chaser at the tax sale, or ssJe of the land for 
 non-payment of taxes. 
 
 This deed, according to the principles of the 
 common law, is simply a link in the chain of 
 the grantee's title. It does not ipso facto trans- 
 fer the title of the owner, as in grants from the 
 government or deeds between man and man. 
 The operative character of it depends upon the 
 regularity of the anterior proceedings. _ The 
 deed is not the title itself, nor even evidence 
 of it. Its recitals bind no one. It creates no 
 estoppel upon the former owner. No presump- 
 tion arises upon the mere production of the 
 deed that the facts upon which it is based had 
 any existence. When it is shown, however, 
 that the ministerial officers of the law have 
 
TAX SALE 
 
 709 
 
 TEIND COURT 
 
 performed every duty which the law imposed 
 upon them, every condition essential in its 
 character, then the deed becomes conclusive 
 evidence of the title in the grantee, according 
 to its extent and purport. See Blackw. Tax 
 Titles, 480 -, 2 Washb. R. P. 542. 
 
 TAX SALE. A sale of lands for the 
 non-payment of taxes assessed thereon. 
 
 The power of sale does not attach until 
 every prerequisite of the law has been com- 
 plied with ; 9 Miss. 627. The regularity of 
 the anterior proceedings is the basis upon 
 which it rests. Those proceedings must be 
 completed and perfected before the authority 
 of the officer to sell the land of the delinquent 
 can be regarded as consummated. The land 
 must have been duly listed, valued, and 
 taxed, the assessment roll-placed in the hands 
 of the proper officer with authority to collect 
 the tax, the tax demanded, all collateral reme- 
 dies for the collection of the tax exhausted, 
 the delinquent list returned, a. judgment ren- 
 dered when judicial proceedings intervene, 
 the necessary precept, warrant, or other au- 
 thority delivered to the officers intrusted with 
 the power of sale, and the sale advertised in 
 due form of law, before a sale can be made ; 
 Blackw. Tax Titles, 294; 4 Wheat. 78; 6 id. 
 119 ; 7 Cow. 88 ; 6 Mo. 64 ; 12 Miss. 627 ; 
 5 S. & R. 332. 
 
 There are important details connected with 
 the auction itseljf and the duties of the officer 
 intrusted with the conducting thereof. 
 
 The sale must be a public, and not a pri- 
 vate, one. The sale must take place at the 
 precise time fixed by the law or notice, other- 
 wise it will be void. 
 
 It is equally important that the sale should 
 be made at the place designated in the adver- 
 tisement. 
 
 The sale to be valid must be made to the 
 "highest bidder," which ordinarily means 
 the person who offijrs to pay for the land put 
 np the largest sum of money. This is the 
 rule in Pennsylvania; but in most of the 
 states the highest bidder is he who will pay 
 the taxes, interest, and costs due upon the 
 tract ofiered for sale for the least quantity 
 of it. 
 
 The sale must be for cash. 
 
 Where a part of the land sold is liable to 
 sale and the residue is not, the sale is void in 
 toto. 
 
 The sale must be according to the parcels 
 and descriptions contained in the list and the 
 other proceedings, or it cannot be sustained. 
 
 When a tract of land is assessed against 
 tenants in common, and one of them pays 
 the tax on his share, the interest of the other 
 may be sold to satisfy the residue of the 
 assessment. 
 
 Where several parcels of land belonging 
 to the same person are separately assessed, 
 each parcel is liable for its own specific tax 
 and no more. 
 
 The quantity of land that may be sold by 
 the officer depends upon the phraseology of 
 each particular statute. 
 
 Where, after an assessment is made, the 
 county in which the proceedings were had is 
 divided, the collector of the old county has 
 power to sell land lying in the temtory in 
 the newly created county ; 4 Yerg. 307 ; 11 
 How. 414 ; 24 Me. 283 ; 13 111. 253 ; 9 Ohio, 
 43 ; 13 Pick. 492 ; 21 N. H. 400 ; 9 W. & 
 S. 80. 
 
 TAXATION. The process of taxing or 
 imposing a tax. Webster, Diet. 
 
 In Practice. Adjustment. Fixing the 
 amount : e. g. taxation of costs. 3 Chitty, 
 Gen. Pr. 602. 
 
 TAXATION OP COSTS. In Practioe. 
 
 Fixing the amount of costs to which a party 
 is entitled. 
 
 It is a rule that the jury must assess the 
 damages and costs separately, so that it may 
 appear to the court that the costs were not 
 considered in the damages ; and when the 
 jury give costs in an amount insufficient to 
 answer the costs of the suit, the plaintiff may 
 pray that the officer may tax the costs, and 
 such taxation is inserted in the judgment. 
 This is said to be done ex assensu of the 
 plaintiff, because at his prayer. Bacon, Abr. 
 Costs (K). The costs are taxed in the first 
 instance by the prothonotary or clerk of the 
 court. See 2 Wend. 244; Harp. 326; 1 
 Pick. 211. A bill of costs, having been once 
 submitted to such an officer for taxation, can- 
 not be withdrawn from him and referred to 
 another ; 2 Wend. 252. 
 
 TEAMSTER. One who drives horses in 
 a wagon for the purpose of carrying goods 
 for hire. He is liable as a common carrier. 
 Story,. Bailm. § 496. See Cakriee. 
 
 TECHNICAL. That which properly 
 belongs to an art. 
 
 In the construction of contracts It is a general 
 rule that technical words are to be taken accord- 
 ing 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 un- 
 derstood in another sense by the parties ; 3 B. & 
 P. 164; 6 Term, 330; see Coststeuotion. 
 
 Words which do not of themselves denote that 
 they are used in a technical sense are to have 
 their plain, popular, obvious, and natural mean- 
 ing ; 6 W. & S. 114. 
 
 The law, like other professions, has a techni- 
 cal language. " When a mechanic speaks to me 
 of the instruments and operations of his trade," 
 says Mr. Wynne, Eunom. Dial. 2, s. 5, " I shall 
 be as unlikely to comprehend him as he would 
 me in the language of my profession, though we 
 both of us spoke English all the while. Is it 
 wonderful, then, if in systems of law, and es- 
 pecially among the hasty recruits of commenta- 
 tors, you meet (to use Lord Coke's expression) 
 with a whole army of words that cannot defend 
 themselves in a grammatical war? Technical 
 ^language, in all cases, is formed from the most 
 Intimate knowledge of any art. One word stands 
 for a great many, as it is always to be resolved into 
 many ideas by definitions. It is, therefore, unin- 
 telligible because it is concise, and it is useful for 
 the same reason." See Language ; Words. 
 
 TEIND COURT. In Scotch Law. A 
 court which has jurisdiction of matters relat- 
 ing to teinds, q. v. 
 
TEINDS 
 
 710 
 
 TELEGRAPH 
 
 TEINDS. In Scotch Law. Tithes. 
 
 TELEGRAPH. An apparatus, or a pro- 
 cess for communicating rapidly between dis- 
 tant points, especially by means of precon- 
 certed visible signals representing words or 
 ideasj or by means of words and signs trans- 
 mitted by electro-magnetism. Webster, Diet. 
 The term, as generally used, applies distinc- 
 tively to the electro-magnetic telegraph. And 
 it is in the operation of this instrument by 
 . incorporated companies that the principal 
 legal questions upon the subject of telegraphs 
 have arisen. 
 
 In the United States all telegraph lines are 
 operated by companies, either under the 
 authority of general laws, or by express char- 
 ter ; Scott & J. Telegr. § 3. Telegraph com- 
 panies are private corporations deriving their 
 franchise from the grant of the' legislature ; 
 when the grant has been accepted, a contract 
 exists between the state on the one part and 
 the company on the other; 4 Wheat.' 518; 
 22 Cal. 398. Exclusive franchises may be 
 granted, but will not be implied; 11 Pet. 
 420 ; 11 Leigh, 42. By statute, telegraph 
 companies are authorized to construct their 
 lines upon any public road or highway, and 
 across navigable streams, but so as not to inter- 
 fere with their public use or navigation ; 46 
 Me. 483. The telegraph is a public use au- 
 thorizing the exercise of the right of eminent 
 domain ; 43 N. J. L. 381. Under the general 
 police power, municipal corporations may 
 regulate the manner in which the lines are to 
 be constructed in cities, so as not to interfere 
 with the comfort and safety of the inhabitants ; 
 Scott & J. Telegr. § 54. But the power 
 of the municipality is to regulate, not to pro- 
 hibit, and in -the absence of evidence that a 
 proposed method of laying the wires by a 
 company will impede or endanger. the use of 
 the streets by the public, a court of equity 
 will enjoin the town from interfering with the 
 wires ; 19 Am. L. Reg. n. s. 325. Unless 
 under the sanction of legislative enactment 
 the erection of telegraph posts or the laying 
 of tubes in any highway is a nuisance at 
 common law; 9 Cox, C. C. 174; 30 Beav. 
 287 ; 21 Alb. L. J. 44. It has been generally 
 held that the obligations of telegraph com- 
 panies are not the same as those of common 
 carriers of goods ; 41 N. Y. 544 ; 45 Barb. 
 274 ; 18 Md. 341 ; 15 Mich. 525 ; see Laws. 
 Carr. 3 ; but this language has been thought 
 to be too broad, and it has been said that 
 these companies are common carriers of mes- 
 sages, subject to all the rules which are in their 
 nature applicable to all classes of common 
 carriers ; Shearm. & R. Negligence, § 654. 
 The better opinion would seem to be that 
 since these companies perform a quasi-Tp\ih\ic 
 employment, under obligations analogous to 
 those of common carriers, the rules governing 
 the latter should be applied to them, but mo- 
 dified to meet the changed conditions of the 
 case ; 1 Daly, 547 ; 35 Penn. 298 ; 13 Allen, 
 226 ; 58 Ga. 483. They were held to be 
 common carriers in 17 C. B. 3 ; 13 Cal. 422. 
 
 Due and reasonable care is required of 
 telegraph companies in the performance of 
 their duties; 13 Allen, 226; 78 Penn. 238- 
 48 N. y. 182; 15 Mich. 525; and the necessit)' 
 for such care is made the greater by the delicacy 
 of the instrument and the skill required to man- 
 age it; 15 Mich. 525; 48 N. Y. 132; 60 HI. 421. 
 
 Telegraph companies may limit their lial 
 bility by notice to the sender of themessaee- 
 35 Ind. 429 ; 74 111. 168 ; 30 How. Pr. 413 '• 
 113 Mass. 299 ; 17 C. B. 3 ; 13 Cent. L. J. 475; 
 14 id. 386. A company may make reasonable 
 rules relative to its business and thereby limit 
 its liability. A rule that the company will not 
 be responsible for the correct transmission of 
 despatches, beyond the amount received 
 therefrom, unless repeated at an additional 
 expense, is reasonable ; 11 Neb. 87 ; but see 
 25 Alb. L. J. 478 (S. C. of Ga.). But they 
 cannot by any device avoid liability for the 
 consequences of gross negligence or fraud of 
 their agents ; 33 Wise. 558; 34 id. 471; 37 
 Mo. 472. 
 
 The current of authority favors the rule 
 that the usual conditions in the blanks of 
 telegraph companies exempt them only from 
 the consequences of errors arising from 
 causes beyond their control, whether the mes- 
 sage be repeated or unrepeated; 6 So. L. 
 Rev. 335 ; 78 Penn. 238 ; 27 Iowa, 433 ; 1 
 Col. 230; 5 S. C. 358 ; 17 Wall. 357; 96 U. 
 S. 655; 2 Am. L. Rev. 615. Notice of regu- 
 lations must be brought home to the sender 
 of the despatch, if they are to be regarded 
 as incorporated in ■ his contract ; 1 Daly, 
 547. His signature to the printed conditions 
 is sufficient evidence of knowledge, and he 
 will not be heard to say that he did not read 
 them ; 113 Mass. 299 ; 15 Mich. 525. 
 
 Telegraph companies are not allowed to 
 show any preference in the transmission of 
 despatches, except as regulated by statute; 
 23 Ind. 377; 56 Barb. 46. They may 
 refuse to send obscene messages, but they 
 cannot judge of the good or bad faith of the 
 senders in the use of language not in itself 
 immoral ; 57 Ind. 495. 
 
 In England, it is held that the receiver of a 
 message, not being party to the contract for 
 despatching it, can claim no rights under it ; 
 L. R. 4 Q. B. 706 ; 3 C. P. Div. 1 ; but in 
 the United States the right of action in such 
 cases has been conceded ; 1 Am. L. Reg. 
 685 ; and this right has been based upon the 
 " misfeasance" of the company upon which 
 the receiver acted to his injury; 35 Penn. 
 298 ; 52 Ind. 1 ; 6 So. L. Rev. 344. 
 
 Telegraph companies are bound to receive 
 and transmit messages from other companies, 
 but are not held responsible for their defaults ; 
 45 N. Y. 744 ; 41 id. 544. 
 
 A railroad company cannot grant a tele- 
 graph company the exclusive right to estab- 
 lish telegraph lines along its way, such con- 
 tracts being void as in restraint of trade; H 
 Fed. Rep. 1. 
 
 Employfis of telegraph companies cannot 
 refuse to answer questions as to messages 
 
XJiJjJibrJtlArii 
 
 71.1 
 
 TELEPHONE 
 
 transmitted by them ; and they must, if 
 called upon, prqduce such messages ; 20 Law 
 Times, n. s. 421 ; an operator may be re- 
 quired to testify to the contents of a telegram 
 addressed and delivered to a defendant on 
 trial under indictment'; 58 Me. 267; 7 West 
 Va. 544 ; 3 Dillon, 567. And even when a 
 statute forbids the divulging of the contents 
 of a telegram, it has been held not to apply 
 when the testimony of an operator is required 
 in a court of justice ; 2 Pars. Eq. Cas. 274. 
 See Allen, Tel. Cas. 496, n. The power of 
 the court to compel the local manager of a 
 company to search for and produce private 
 telegrams has been enforced in Missouri by 
 subpoena duces tecum, notwithstanding a 
 statute similar to that referred to above ; 8 
 Cent. L. J. 378. These decisions have been 
 severely criticized, but have not been over- 
 ruled; Oooley, Const. Lim. 387; 18 Am. L, 
 Keg. N. s. 65. See 5 So. L. Rev. 473. 
 
 In estimating the measure of damages for 
 the failure to transmit a message properly, 
 the general rules upon the subject of damages 
 ex contractu are applied ; 98 Mass. 232 ; 18 
 U. C. Q. B. 60; 15 Gratt. 122. Unless the 
 despatch shows on its face the importance of 
 the matter to which it relates, or information 
 on this point is communicated to the company's 
 agents, only nominal damages can be recov- 
 ered for the default of the company ; 9 
 Bradw. 283 ; 29 Md. 232 ; 21 Minn. 155 ; 
 45 N. Y. 744 ; 16 Nev. 222. Orders to agents 
 to buy and sell stocks, though briefly ex- 
 pressed, have been held to impart information 
 sufficiently as to their importance ; 55 Penn. 
 262 ; 60 111. 421 ; 44 N. T. 263 ; contra, 29 
 Md. 232. And the company is liable for the 
 losses sustained, the fluctuations in the market 
 being the measure of damages ; supra. See 
 also 41 Iowa, 458 ; 27 La. An. 49. If the 
 default of the company arises from the dis- 
 honesty of some third person, the company 
 will not be held liable for such remote dam- 
 ages; 30 Ohio St. 555; 60 N. Y. 198. 
 
 A company is bound to use reasonable ef- 
 forts to ascertain where the persons are to 
 whom a message is sent and to deliver the 
 same ; 9 Bradw. 283. 
 
 A contract may be made and proved m 
 court by telegraphic despatches ; 20 Mo. 254 ; 
 41 N. Y. 544 ; 103 Mass. 327 ; L. E. 6 Ex. 
 7 ; and the same rules apply in determining 
 whether a contract has been made by tele- 
 grams as in cases of a contract made by letter ; 
 36 N. Y. 307 ; 31 U. C. Q. B. 18 ; 4 Dill. 
 431. Messages are instruments of evidence, 
 and are governed by the same rules as other 
 writings : Scott & J. Telegr. § 340 ; the ori- 
 ginal message is said to be the best evidence : 
 if this cannot be produced, then a copy should 
 be produced ; id. § 341 ; see 40 Wise. 440. 
 As to which is the original, it is said to "de- 
 pend upon which party is responsible for its 
 transmission across the line, or, in other 
 words, whose agent the telegraph company 
 is. The first communication m a transaction, 
 if it is all negotiated across the wires, will 
 
 only be effective in the form in which it 
 reaches its destination ;" 29 Vt. 140. See 
 36 N. Y. 307 ; 40 Wise. 440. See, on this 
 subject, an article in 14 0. L. J. 262. 
 
 The signature of a clerk of a telegraph 
 company to a despatch was held to be suffi- 
 cient, under the Statute of Frauds, where the 
 original instructions had been signed by the 
 party ; L. R. 5 C. P. 295 ; see 6 U. C. C. 
 P. 221. 
 
 By act of congress of July 24, 1866, any 
 telegraph company organized under the laws 
 of any state of the Union is granted the right 
 under certain restrictions to construct, main- 
 tain, and operate lines of telegraph through 
 and over any portion of the public domain 
 of the United States, over and along any 
 of the military or post roads of the United 
 States, and over, under, or across navigable 
 streams or waters, provided that they do not 
 obstruct their navigation, or interfere with 
 ordinary travel ; R. S. § 5263. This act, so 
 far as it declares that the erection of telegraph 
 lines shall, as against state interference, be 
 free to all who accept its terms and conditions, 
 and that a telegraph company of one state 
 shall not, after accepting them, be excluded 
 by another state from prosecuting its business 
 within her jurisdiction, is a legitimate regula- 
 tion of commercial intercourse among the 
 states, and is appropriate legislation to exe- 
 cute the powers of congress over the postal 
 service; 96 U. S. 1. Since this act a rail- 
 road company cannot grant to a telegraph 
 company the sole right to construct a line 
 over its right of way so as to exclude other 
 companies which have accepted the provi- 
 sions of the said act, and the lines of which 
 would not disturb or obstruct the business of 
 the company to which the use has first been 
 granted; 19 Am. L. Reg. N. s. 173. 
 
 As to submarine cables, in international 
 law, see 15 Am. L. Rev. 211. 
 
 See generally Allen, Telegraph Cases ; 
 Scott & Jarnagin, Telegraphs, Shearman & 
 Eedfield, Negligence; Commebcb. 
 
 TELEFHONS. An instrument for trans- 
 mitting spoken words. 
 
 In law the owners and operators of tele- 
 phones are in much the same position as tele- 
 graph companies. They have been called 
 "common carriers of articulate speech," that 
 is to say, even though their liabilities do not 
 in all respects resemble the liabilities of ordi- 
 nary common carriers, yet, like common car- 
 riers, they are engaged in a semi-public occu- 
 pation, and have duties and privileges accord- 
 ingly ; 24 Alb. L. J. 283 ; 22 id. 363. See 
 Telegraph. 
 
 It has been held that a telephone company 
 must transmit despatches impartially for all 
 who choose to send them ; and may make no 
 discriminations in favor of or against particu- 
 lar individuals. So a contract between a 
 telephone company and the owner of patented 
 telephone instruments, that in the use of such 
 instruments by the telephone company dis- 
 criminations should be made against certain 
 
TELLER 
 
 712 
 
 TENANT 
 
 telegraph companies, was declared void ; S6 
 Ohio St. 296 ; 22 Alb. L. J. 363. But see 
 25 id. 224. 
 
 In England, a message sent by Edison's 
 telephone has been held to come within the 
 statute (32 & 33 Vict. c. 73, s. 4) placing the 
 transmission of telegraphic messages and tele- 
 grams under the control, of the postmaster- 
 general, though the telephone was not in- 
 vented or contemplated in 1869 ; 6 Q. B. Div. 
 244 ; s. C. 29 Moak, Engl. Rep. 602. As to 
 making affidavit by means of the telephone, 
 see 26 Alb. L. J. 326. 
 
 TELLER (tallier, one who keeps a tally). 
 An Qfficer in a bank or other institution. A 
 person appointed to receive votes. A name 
 given to certain oflScers in the English exche- 
 quer. 
 
 The duties of tellers in banks in this coun- 
 try consist of the receiving of all sums of 
 money paid into the bank, and the paying of 
 all sums drawn out. In large institutions 
 there are generally three, — the first or paying 
 teller, the second or receiving teller, and the 
 third or note teller. It is the duty of the 
 firsi teller to pay all checks drawn on the 
 bank, and, where the practice of certification 
 is in use, to certify those that are presented 
 for that purpose. The position ranks next in 
 importance to that of cashier. The authority 
 of a teller to certify that a cheque is "good," 
 so as to bind the bank, has been denied ; 9 
 Mete. (Mass.) 306 ; but is supported by the 
 weight of decisions ; 39 Penn. 92 ; 52 N. Y. 
 96; Morse, Bk. 201. The second teller re- 
 ceives the deposits made in the bank, and 
 also payment for bills that may be drawn on 
 other places. The third teller receives pay- 
 ment of bills and notes held by the bank. 
 The receiving teller often does the duty of 
 the note teller. Sewell, Bank. 
 
 TEMPLE. See Inns of Court. 
 
 TEMPORALITIES (L. Lat. tempora- 
 lid). Revenues, lands, tenements, and lay 
 fees which bishops have from livery of the 
 king, and in virtue of which they sit in par. 
 liament. 1 Rolle, Abr. 881. 
 
 TEMPORALTY. The laity. 
 
 TEMPORARY. That which is to last 
 for a limited time. See Statute. 
 
 TBMPORIS EXCEPTIO (Lat.). In 
 CivU Law. A plea of lapse of time in bar 
 of an action, like our statute of limitations. 
 Dig. de diversis temporalibus actionibus. 
 
 TEMPUS (Lat.). In Civil and Old 
 English Law. Time in general. A time 
 limited ; a season : e. g. tempus pessonis, mast 
 time in the forest. 
 
 TEMPUS CONTINUUM (Lat.). In 
 CivU Law. A period of time which runs 
 continually having once begun, feast-days 
 being counted as well as ordmary days, and 
 it making no difference whether the person 
 against whom it runs is present or absent. 
 Calvinus. 
 
 TEMPUS UTILE (Lat.). In ClvU 
 Law. A period of time which runs benefi- 
 cially : t. e. feast-days are not included, nor 
 does it run against one absent in a foreign 
 countrj-, or on business of the republic, or 
 detained by stress of weather. But one de- 
 tained by sickness is not protected from its 
 running ; for it runs where there is power to 
 act by an agent as well as where there ia 
 power to act personally ; and the sick man 
 might have deputed his agent. Calvinus. 
 
 TENANCY. The state or condition of a 
 tenant ; the estate held by a tenant. 
 
 TENANT (Lat. teneo, tenere, to hold). 
 One who holds or possesses lands or tene- 
 ments by any kind of title, either in fee, for 
 life, for years, or at will. In a popular sense, 
 he is one who has the temporary use and oc- 
 cupation of lands or tenements which belong 
 to another, the duration and other terms of 
 whose occupation are usually defined by an 
 agreement called a lease, while the parties 
 thereto are placed in the relation of landlord 
 and tenant. See Landlord and Tenant ; 
 5 M. & G. 54. 
 
 Tenants in Common are such as hold 
 lands and tenements by several and distiiict 
 titles, and not by a joint title, but occupy in 
 common, the only unity recognized between 
 them being that of possession. They are 
 accountable to each other for the profits 
 of the estate ; and if one of them turns an- 
 other out of possession, an action of eject- 
 ment will lie against him. They may also 
 have reciprocal actions of waste against each 
 other; 2 Bla. Com. 191. See Estate in 
 Common ; 7 Cruise, Dig. ; Bac. Abr. Joint 
 Tenants, and Tenants in Common; Comyns, 
 Dig. Abatement (E 10, F 6), Chancery (3 V 
 4), Devise (N 8), Estates {K 8, R 2) ; 1 Vem. 
 Ch. 853; Will. R. Pr. *137; 47 Conn. 474. 
 
 Tenant by the Curtesy at common 
 law is a species of life tenant who, on the 
 death of his wife seized of an estate of in- 
 heritance, after having issue by her which is 
 capable of inheriting her estate, holds her lands 
 for the period of his own life : after the birth 
 of such a child, the tenant is called tenant by 
 the curtesy initiate ; Co. Litt. 29 a ; 2 Bla. 
 Com. 1 26 ; but to consummate the tenancy 
 the marriage must be lawful, the wife must 
 have possession, and not a mere right of pos- 
 session, the issue must be born alive, during 
 the lifetime of the mother, and the husband 
 must survive the wife. Tenancy by curtesy 
 has been adopted as a common law estate in 
 most of the United States, although modified 
 in many of them by statute ; 1 Washb. R. P. 
 163. Thus, in Pennsylvania, the right to 
 curtesy is by the act of 8th of April, 1833, 
 given to the husband "although there be no 
 issue of the marriage ;" Will. R. P. *229 n. 
 2. In some states, e. g. Louisiana, Indiana, 
 and Michigan, no curtesy is allowed. See 
 Curtesy. * 
 
 Tenant ok the Demesne. One who is 
 tenant of a mesne lord : as, where A is ten- 
 
TENANT 
 
 713 
 
 TENANT 
 
 ant of B, and C of A ; B is the lord, A the 
 mesne lord, and C tenant of the demesne. 
 Hamm. N. P. 392, 393. 
 
 Tenant in Dower is another species of 
 life tenant, occurring where the husband of 
 a woman is seized of an estate of inheritance 
 and dies, and the wife thereby becomes en- 
 titled to hold the third part of all the lands 
 and tenements of which he was seized at any 
 time during the coverture to her own use, 
 for the term of her natural life. See Dower ; 
 2 Bla. Com. 129 ; Comyns, Dig. Dower (A). 
 
 The right of dower has been adopted, in a 
 somewhat modified form, throughout the 
 United States, and in nearly every state ex- 
 cepting Louisiana and Indiana it will be found 
 to exist, substantially like the dower of the 
 common law ; 1 Washb. E. P. p. 187. Dower 
 has substantially defeated in England under 
 modern statutes ; Schoul. Husb. & W. 453. 
 
 Tenant in Fee, under the feudal law, 
 held his lands either immediately or deriva- 
 tively from the sovereign, in consideration of 
 the military or other services he was bound 
 to perform. If he held directly from the 
 king he was called a tenant in fee, in capite. 
 With us, the highest estate which a man can 
 have in land has direct reference to his duty 
 to the state : from it he ultimately holds his 
 title, to it he owes fealty and service, and if 
 he fails in his allegiance to it, or dies without 
 heirs upon whom this duty may devolve, his 
 lands revert to the state under which he held. 
 Subject to this qualification, however, a ten- 
 ant in fee has an absolute unconditional 
 ownership in land, which upon, his death 
 vests in his heirs ; and hence he enjoys what 
 is called an estate of inheritance ; see Es- 
 tate ; 2 Bla. Com. 81 ; Litt. § 1 ; Plowd. 
 655; Will. R. P. »60. 
 
 Joint-Tenants are two or more persons 
 to whom lands or tenements have been granted 
 to hold in fee-simple, for life, for years, or at 
 will. In order to constitute an estate in 
 joint-tenancy, the tenants thereof must have 
 one and the same interest, arising by the 
 same conveyance, commencing at the same 
 time, and held by one and the same undivided 
 possession ; 2 Bla. Com. 180. The principal 
 incident to this estate is the right of survivor- 
 ship, by which upon the death of one joint- 
 tenant the entire tenancy remains to the sur- 
 viving co-tenant, and not to the heirs or 
 other representatives of the deceased, the 
 last survivor taking the whole estate. It is 
 an estate which can only be created by the 
 acts of the parties, and never by operation 
 of law; Co. Litt. 184 6; 2 Cruise, Dig. 43 ; 
 4 Kent, 358; 2 Bla. Com. 179. 
 
 The policy of American law is against sur- 
 vivorship, and in many states it is abolished 
 by statute, except in case of joint trustees ; 
 while in others, estates to two or more per- 
 sons are held to create tenancies in common, 
 unless expressly declared to be joint ten- 
 ancies; 16 Grav, 308; 7 Mass. 131; Washb. 
 E. P. 644. 
 
 Tenant for Life has a freehold interest 
 
 in lands, the duration of which is confined to 
 the life or lives of some particular person or 
 persons, or to the happening or not happen- 
 ing of some uncertain event ; 1 Cruise, 76. 
 When he holds the estate by the life of 
 another, he is usually called tenant pur autre 
 vie; 2 Bla. Com. 120; Comyns, Dig. Es- 
 tates (P 1). See Estate for Life ; Em- 
 blements. 
 
 Tenant by the Manner. One who has 
 a less estate than a fee in land which re- 
 mains in the reversioner. He is so called 
 because in avowries and other pleadings i1 
 is specially shown in what manner he is ten- 
 ant of the land, in contradistinction to the 
 veray tenant, who is called simply tenant. 
 See Veray. 
 
 Tenant Para vail. The tenant of a 
 tenant. He is so called because he has avails 
 or profits of the land. 
 
 Tenant in Severalty is he who holds 
 lands and tenements in his own right only, 
 without any other person being joined or 
 connected with him in point of interest during 
 his estate therein ; 2 Bla. Com. 179. 
 
 Tenant at Sufferance is he who comes 
 into possession by a lawful demise, but after 
 his term is ended continues the possession 
 wrongfully by holding over. He has only a 
 naked possession, stands in no privity to the 
 landlord, and may, consequently, be removed 
 without notice to quit ; Co. Litt. 57 J ; 2 
 Leon. 46 ; 3 id. 153 ; 1 Johns. Cas. 123; 4 
 Johns. 150, 312; 54 Penn. 86 ; 17 Pick. 263; 
 Jacks. & G. Landl. & T. § 471. 
 
 Tenant in Tail is one who holds an 
 estate in fee, which by the instrument creating 
 it is limited to some particular heirs, exclu- 
 sive of others ; as, to the heirs of his body or 
 to the heirs, male or female, of his body. 
 The whole system of entailment, rendering 
 estates inalienable, is so directly opposed to 
 the spirit of our republican institutions as to 
 have become very nearly extinct in the United 
 States. Most of the states at an early period 
 of our independence passed laws declaring 
 such estates to be estates in fee-simple, or 
 provided that the tenant and the remainder- 
 man might join in conveying the land in fee- 
 simple. In New Hampshire, Chancellor Kent 
 says, entails may still be created; while in 
 some of the states they have not been ex- 
 pressly abolished by statute, but in practice 
 they are now almost unknown. See En- 
 tails ; 2 Bla. Com. 113 ; 2 Kent ; 2 Washb. 
 R. P. 
 
 Tenant at Will is where a person holds 
 rent-free by permission of the owner, or 
 where he enters under an agreement to pur- 
 chase, or for a lease, but has not paid rent. 
 Formerly all leases for uncertain periods were 
 considered to be tenancies at will merely ; 
 but in modern times they are construed into 
 tenancies from year to year ; and, in fact, the 
 general language of the books now is that 
 the former species of tenancy cannot exist 
 without an express agreement to that effect ; 
 8 Cow. 75; 4 Ired. 291; 3 Dana, 66 ; 12 
 
TENANT EIGHT 
 
 ru 
 
 TENDER 
 
 Mass. 325 ; 23 Wend. 616 ; 12 N. Y. 346 ; 
 but see Wood. Landl. & T. 30, n. 1. The 
 great criterion by which to distinguish be- 
 tween tenancies from year to year, and at 
 will, is the payment or reservation of rent ; 
 5 Bing. 361 ; 2 Esp. 718. 
 
 A tenancy at will must always be at the 
 will of either party, and such a tenant may 
 be ejected at any time, and without notice, 
 unless notice is rendered necessary by stat- 
 ute, as in Massachusetts and other states; 
 Wood. Landl. & T. 51 ; 10 Gray, 290 ; but 
 as soon as he once pays rent he becomes ten- 
 ant from year to year ; 1 W. & S. 90 ; Tayl. 
 Land. & T. § 56 ; Co. Litt. 55 ; 2 Bla. Com. 
 145. 
 
 Tenant for Years is he to whom another 
 has let lands, tenements, or hereditaments, 
 for a certain number of years, agreed upon 
 between them, and the tenant enters thereon. 
 Before entry he has only an inchoate right, 
 which is called an interesse termini ; and it is 
 of the essence of this estate that its com- 
 mencement as well as its termination be fixed 
 and determined, so that the lapse of time 
 limited for its duration will, ipso facto, deter- 
 mine the tenancy. ; if otherwise, the occu- 
 pant will be tenant from year to year, or at 
 will, according to circumstances. See Lease ; 
 Tayl. Landl. & T. J 54 ; 2 Bla. Com. 140 ; 
 28 Mo. 65 ; 26 N. J. L. 565. 
 
 Tenant from Yeak to Year is where 
 lands or tenements have been let without any 
 particular limitation for the duration of the 
 tenancy : hence any general occupation with 
 permission, whether a tenant is holding over 
 after the expiration of a lease for years, or 
 otherwise, becomes a tenancy from year to 
 year ; 3 Burr, 1609 ; 3 B. & C. 478 : 9 Johns. 
 330 ; 3 Zab. 311. The principal feature of 
 this tenancy is that it is not determinable 
 even at the end of the current year, unless a 
 reasonable notice to quit is served by the 
 party intending to dissolve the tenancy upon 
 the other; 4 Cow. 349; 11 Wend. 616; 5 
 Bingh. 185. See Landlord and Tenant ; 
 Notice to Qdit ; and as to this latter title, 
 15 C. L. J. 322. 
 
 TENANT RIGHT. In leases from the 
 crown, corporations, or the church, it is usual 
 to grant a further term to the old tenants in 
 preference to strangers ; and, as this expecta- 
 tion is seldom disappointed, such tenants are 
 considered as having an ulterior interest be- 
 yond their subsisting term ; and this interest 
 IS called the tenant right. Bacon, Abr. Leases 
 and Terms for Years (U). 
 
 TENDER (Lat. tendere, to extend, to of- 
 fer). An ofier to deliver something, made 
 in pursuance of some contract or obhgation, 
 under such circumstances as to require no 
 further act from the party making it to com- 
 plete the transfer. 
 
 Legal tender, money of a character which 
 by law a debtor may require his creditor to 
 receive in payment, in the absence of any 
 
 agreement in the contract or obligation itself. 
 See Legal Tender. 
 
 In Contracts. It may be either of money 
 or of specific articles. 
 
 Tender of money must be made by some 
 person authorized by the debtor; Co. Litt 
 206 ; 2 Maule & S. 86 ; to the creditor, or to 
 some person properly authorized, and who 
 must have capacity to receive it ; 1 Camp 
 477 ; Dougl. 632; 5 Taunt. 307; 4 B. & 6 
 29 ; 14 S. & K. 307 ; 11 Me. 475; 1 Gray, 
 600 ; 13 La. An. 529 ; but necessity will 
 sometimes create exceptions to this rule* 
 thus any one may make a tender for an idiot ; 1 
 Inst. 206 b ; an uncle, although not appointed 
 guardian, has been permitted to make a tender 
 on behalf of an infant whose father was dead ; 1 
 Bawle, 408 ; in lawful coin of the country ; 5 
 Go. 114 ; 13 Mass. 235 ; 4 N. H. 296 ; or paper 
 money which has been legalized for this pur- 
 pose ; 2 Mas. 1 ; as, U. S. treasury notes, 
 or "greenbacks;" 12 Wall. 457; 27 Ind. 
 426 ; or foreign coin made current by law ; 2 
 Nev. &M. 519; but a tender in bank-notes 
 will be good if not objected to on that ac- 
 count ; 2 B. & P. 526 ; 9 Pick. 539 ; 1 Johns. 
 476 ; 1 Bay. 115 ; 1 Rawle, 408 ; 6 Harr. & 
 J. 63 ; 7 Mo. 556 ; 6 Ala. N. s. 226 ; or by 
 a check ; Dowl. Pr. Cas. 442 ; 7 Ohio, 257. 
 As to what has been held objection, see 2 
 Caines, 116; 13 Mass. 235; 5 N. H. 296; 
 10 Wheat. 333. The exact amount due 
 must be tendered; 3 Camp. 70; 6 Tannt. 
 336 ; 5 Mass. 365 ;, 2 Conn. 659 ; 41 Vt. 66 ; 
 29 Iowa, 480 ; though more may be tendered, 
 if the excess is not to be handed back; 5 
 Co. 114; 3 Term, 683; 4 B. & Ad. 546; 
 and asking change does not vitiate unless ob- 
 jection is made on that account ; 1 Camp. 70 ; 
 5 Dowl. & R. 289 ; and the offer must be un- 
 qualified ; 1 Camp. 131 ; 3 id. 70 ; 4 id. 166 ; 
 1 M. &W. 310; 9 Mete. 162; 20 Wend. 47; 
 18 Vt. 224 ; 1 Wise. 141. 
 
 When a larger sum than is due is tendered, 
 it is not necessary that the debtor pay or 
 keep good the whole amount ; for, although 
 the tender of money is supposed to he an ad- 
 mission by the debtor that the entire sum 
 tendered is due and payable, yet it is not con- 
 clusive evidence to that effect ; 24 Ind. 250. 
 But where tender was made after suit brought, 
 and the amount supposed by defendant to be 
 due was paid into court, it was decided that 
 the full amount must be paid over to the 
 plaintiff, notwithstanding a much less sum 
 was found by arbitrators to be due ; 82 Penn. 
 64. 
 
 It is said that the amount must be stated in 
 making the offer; 30 Vt. 577. It must be 
 made at the time a^eed upon ; 6 Taunt. 240 ; 
 7 id. 487 ; 1 Saund. 33 a, n.; 6 Pick. 187, 
 240 ; 8 Wend. 662 ; 4 Ark. 450 ; but may he 
 given in evidence in mitigation of damages, 
 if made subsequently, before suit brought ; 1 
 Saund. 33 a, n.; statutes have been passed 
 in many of the states, permitting the debtor 
 to make a tender at any time before trial, of 
 
TENDER 
 
 715 
 
 TENEMENT 
 
 the amount he admits to be due, together 
 ■with all costs accrued up to date of tender, 
 and compelling plaintiff, in case he do not re- 
 cover more than the sum tendered, to pay all 
 costs subsequently incurred ; 27 Am. L. Reg. 
 747. In Pennsylvania, by statute of 1705, 
 in case of a tender made before suit, in the 
 event of a suit, the amount tendered must be 
 paid into court under a rule ; 1 S. & R. 14 ; 
 otherwise, the plea of tender is a nullity. If 
 so paid tender is a good plea in bar, and if fol- 
 lowed up, protects the defendant ; 66 Penn. 
 158. Tender may be made after suit brought 
 by paying the amount tendered into court 
 ■with the costs up to the time of payment ; 1 
 T. & H. Pr. 744. At common law the ten- 
 der of a mortgage debt on the day it falls due 
 and at the appointed place discharges the 
 mortgage ; but if made after the maturity of 
 the debt, it must be kept good, in* order to 
 have that effect ; 86 111. 481; 8. c. 29 Am. 
 Eep. 41, n.; 5 Pick. 240; 27 Me. 237; 50 
 Cal. 650 ; 34 N. J. L. 496 ; but in New York 
 and-lftichigan mere tender is sufficient to dis- 
 charge the mortgage ; 26 Wend. 541 ; 21 N. 
 Y. 343 ; 70 id. 553 ; 12 Mich. 270 ; 13 id. 
 303. See 27 Am. L. Reg. 182, n.; 2 Jon. 
 Mort. §§ 886-903 ; at a suitable hour of the 
 day, during daylight; 7 Me. 81; 19 Vt. 
 587 ; at the place agreed upon, or, if no 
 place has been agreed upon, wherever the 
 person authorized to receive payment may be 
 found ; 2 M. & W. 223 ; 2 Maule & S. 120 ; 
 and, in general, all the conditions of the obli- 
 gation must be fulfilled. The money must 
 have been actually produced and offered, un- 
 less the circumstances of the refusal amount 
 to a waiver; 3 C. & P. 342; 8 Me. 107; 15 
 Wend. 637; 6 Md. 37; 6 Pick. 356; 1 
 Wise. 141 ; or at least be in the debtor's pos- 
 session, ready for delivery ; 5 N. 11. 440 ; 7 
 id. 535; 8 Penn. 381. As to what circum- 
 stances may constitute a waiver, see 2 Maule 
 & S, 86 ; 1 Tyl. 381 ; 1 A. K. Marsh. 821. 
 Presence of the debtor with the money ready 
 for delivery is enough, if the creditor be ab- 
 sent from the appointed place at the appointed 
 time of payment ; 4 Pick. 258 ; or if the ten- 
 der is refused ; 3 Penn. 381 ; 18 Conn. 18. 
 
 Tender of specific articles must be made 
 to a proper person, by a proper person, at a 
 proper time; 2 Pars. Contr. 158. The place 
 of delivery is to be determined by the con- 
 tract, or, in the absence of specific agree- 
 ment, by the situation of the parties and cir- 
 cumstances of the case ; 7 Barb. 472 ; for ex- 
 ample, at the manufactory or store of the 
 seller on demand ; 2 Denio, 145 ; at the place 
 where the goods are at the time of sale ; 7 
 Me. 91 ; 3 W. & S. 295 ; 5 Cow. 518 ; 6 Ala. 
 N. s. 826 ; Hard. 80, n.; 1 Wash. C. C. 
 328 ; the creditor's place of abode, when the 
 articles are portable, like cattle, and the time 
 fixed; 4 Wend. N. Y. 877 ; 2 Penn. 68 ; 1 
 Me. 120. When the goods are cumbrous, it 
 is presumed that the creditor was to appoint a 
 place; 5 Me. 192; 8 Dev. 78; or, if he fails 
 to do so upon request, the debtor may ap- 
 
 point a place, giving notice to the creditor, 
 if possible; 13 Wend. 95; 1 Me. 120. 
 Whether a request is necessary if the creditor 
 be without 'the state, see 5 Me. 192; 2 
 Greenl. Ev. § 611. The articles must be set 
 apart and distinguished so as to admit of 
 identification by the creditor; 4 Cow. 452; 
 7 Conn. 110 ; 1 Miss. 401. It must be made 
 during daylight, and the articles must be at 
 the place till the last hour of the day ; 5 Yei-g. 
 410 ; 3 Wash. C. C. 140 ; 19 Vt. 587 ; 5 T. 
 B. Monr. 372 ; unless waived by the parties. 
 See 2 Scott, N. s. 485. 
 
 In Pleading. If made before action 
 brought; 5 Pick. 106; 3 Bla. Com. 303; 
 tender may be pleaded in excuse ; 2 B. & 
 P. 550 ; 5 Pick. 291 ; it must be on the ex- 
 act day of performance ; 5 Taunt. 240 ; 1 
 Saund. 38 a, n. It cannot be made to an ac- 
 tion for general damages when the amount is 
 not liquidated ; 3 Sharsw. Bla. Com. 308, n.; 
 2 Burr. 1120 ; 19 Vt. 592 ; as, upon a con- 
 tract; 2 Bos. & P. 234 ; covenant other than 
 for the payment of money ; 7 Taunt. 486 ; 1 
 Ld. Raym. 566 ; tort; 2 Stra. 787 ; or tres- 
 pass; 2 Wils. 115. It may be pleaded, 
 however, to a quantum meruit; 1 Stra. 576 ; 
 accidental or involuntary trespass, in the 
 United States; 13 Wend. 890; 2 Conn. 
 659 ; 36 Me. 407 ; covenant to pay money ; 
 7 Taunt. 486. 
 
 The efiect of a tender is to put a stop to 
 accruing damages and interest,' and to entitle 
 the defendant to judgment for his costs ; 
 Chit. Contr. ch. 5, sec. 8 ; 8 Bingh. 290 ; 9 
 Cow. 641 ; 3 Johns. Cas. 243 ; 17 Mass. 389 ; 
 10 S. & R. 14 ; 9 Mo. 697 ; and it may be 
 of effect to prevent interest accruing, though 
 not a technical tender; 5 Pick. 106. 
 
 It admits the plaintiff's right of action as 
 to the amount tendered ; 1 Bibb, 272 ; 14 
 Wend. 221 ; 2 Dall. 190. The benefit may 
 be lost by a subsequent demand and refusal 
 of the amount due ; 1 Camp. 1 81 ; 5 B. & 
 Ad. 680 ; Kirb. Conn. 293 ; 24 Pick. 168 ; 
 but not by a demand for more than the sum 
 tendered ; 22 Vt. 440 ; or due ; 8 Q. B. 
 915 ; 11 M. & W. 856. See 26 Am. L. Reg. 
 745, and supra. 
 
 The law of tender on the Continent of Europe 
 is quite different from that of England, the 
 debtor being allowed to make payment to his 
 creditor, by depositing the amount which he ad- 
 mits to he due. In a special department of the 
 public treasury, termed Caisse des Consigna^ 
 tions. This is considered as an actual payment, 
 and the money thus deposited hears interest at a 
 rate fixed hy the state ; Code Civ. arts. 1257 et seq. 
 This system is derived from the Roman law. 
 Benj. Sales, § 754. 
 
 TSNDER OP AMENDS. See Amends. 
 
 TENEMENT (from Lat. teneo, to hold). 
 Every thing of a permanent nature which 
 may be holden. 
 
 House, or homestead. Jacob. Rooms let 
 in houses. 
 
 In its most extensive signification, tenement 
 comprehends every thing which may he holden, 
 provided it he of a permanent nature ; and not 
 
TENEMENTAL LAND 
 
 716 
 
 TENNESSEE 
 
 only lands and inheritances which are holden, 
 but also rents and profits d prendre of which a 
 man has any frank-tenement, and of which he 
 may be seized ut delibero tenemento, are included 
 under this term ; Co. Litt. 6 a ; 2 Bla. Com. 17; 
 1 Washb. R. P. 10. But the word tenements 
 simply, without other circumstances, has never 
 been construed to pass a fee ; 10 Wheat. 204. 
 See 4 Bingh. 293 ; 1 Term, 358 ; 3 id. 773 ; 1 B. & 
 Ad. 161 ; Comyns, Dig. Grant (E 2) , Trespass 
 (A 2) ; 1 Washb. E. P. 10. 
 
 Its original meaning, according to some, was 
 house or homestead. Jacob. In modem use it 
 also signifies rooms let in houses. Webster, 
 Diet. ; 10 Wheat. 204 ; 104 Mass. 95 ; 107 id. 812. 
 
 Bracton says that tenements acquired by a 
 villein were as to the lord in the same condition 
 as chattels, because bought with the chattels 
 which rightfully belong to the lord. Bracton, 
 26. 
 
 TENEMENTAL LAND. Land distrib- 
 uted by a lord among his tenants, as opposed 
 to the demesnes which were occupied by him- 
 self and his servants. 2 Bla. Com. 90. 
 
 TENENDAS (Lat.). In Scotch Law. 
 The name of a clause in charters of heritable 
 rights, which derives its name from its first 
 words, tenendas prcedictas terras, and ex- 
 presses the particular tenure by which the 
 lands are to be holden. Erskine, Inst. b. 2, 
 t. 3, n. 10. 
 
 TElilENDUM (Lat.). That part of a deed 
 which was formerly used in expressing the 
 tenure by which the estate granted was holden; 
 but since all freehold tenures were converted 
 into socage, the tenendum is of no further use 
 even in England, and is therefore joined to 
 the habendum in this manner, — to have and to 
 hold. The words "to hold" have now no 
 meaning in our deeds. 2 Bla. Com. 298. 
 See Habendum. 
 
 TENERI (Lat.). In Contracts. That 
 part of a bond where the obligor declares 
 himself to be held and firmly bound to the 
 obligee, his heirs, executors, administrators, 
 and assigns, is called the teneri. 3 Call, 350. 
 
 TENET (Lat. he holds). In Pleading. 
 A term used in stating the tenure in an action 
 for waste done during the tenancy. 
 
 When the averment is in the tenet, the 
 plaintiff on obtaining a verdict will recover 
 the place wasted, namely, that part of the 
 premises in which the waste was exclusively 
 done, if it were done in a part only, together 
 with treble damages. But when the aver- 
 ment is in the tenuit, the tenancy being at an 
 end, he will have judgment for his damages 
 only. 2 Greenl. Ev. § 652. 
 
 TENITESSEE. The name of one of the 
 United States of America. It is divided into 
 three grand divisions: East Tennessee, that 
 part of the state lying east of the Cumber- 
 land Mountains ; Middle Tennessee, between 
 the Cumberland Mountains on the east and 
 the Tennessee River on the west ; and West 
 Tennessee, lying west of the Tennessee 
 River. The state contains ninety-six counties. 
 
 It was originally a part of North Carolina. In 
 April, 1784, the legislature of North Carolina 
 
 passed an act ceding to the United States, upon 
 certain conditions, all her territory west of the 
 Appalachian or Alleghany Mountains. Before 
 the cession was accepted by congress, it was re- 
 pealed by another act passed in October, 1784. 
 In the mean time, movements had been set on 
 foot by the people to constitute themselves an 
 Independent state. They acted upon the assumed 
 but erroneous ground that North Carolina had 
 by the cession abdicated her sovereignty, and 
 as the congress had not accepted it and might 
 not upon the conditions proposed, they were left 
 without any regular government, and therefore 
 had an inherent right to provide one for them- 
 selves. They consummated their design after 
 the cession act was. repealed, and gave to their 
 new state the name of The State of Franklin. 
 
 This revolutionary state maintained its ex- 
 istence for about three years, when it was 
 suppressed and the rightful dominion of North 
 Carolina reinstated. In December, 1789, the legis- 
 lature again ceded the territory to the United 
 States ; aod the cession was accepted by congress 
 by an act approved April 2, 1790. North Care 
 lina made it a fundamental condition of the ces- 
 sion that the territ6ry so ceded should be laid 
 out and formed into a state or states, containing 
 a suitable extent of territory, the inhabitants of 
 which should enjoy all the privileges, benefits, 
 and advantages set forth in the ordinance of the 
 late congress for the government of the western 
 territory of the United States : provided, always, 
 that no regulations made or to be made by con- 
 gress should tend to emancipate slaves. One of 
 the privileges thus secured to the territory was 
 that when the number of its inhabitants should 
 amount to sixty thousand, it should be entitled 
 to admission into the Union upon an equality 
 with the original states. Under the authorityof 
 the territorial legislature, the census was taken 
 in 1795, and, the necessary number of inhabi- 
 tants being found in the territory, a convention 
 was called, and a constitution established en 
 Februaiy 6, 1796. The legal name of the terri- 
 tory while in a colonial condition was The Ter- 
 ritory of the United States South of the River 
 Ohio. But in the constitution the people adopted 
 the name of The State of Tennessee. 
 
 As congress had not previously decided 
 whether the territory should constitute one state 
 or more than one, and had not itself authorized 
 the enumeration of the inhabitants or the format 
 tion of a constitution, there was a strong mi- 
 nority against the admission of Tennessee into 
 the Union. 1 Benton, Debates, 154. But she 
 was admitted by an act approved June 1, 
 1796. Prior to this time a legislature had been 
 elected, the state government organized, and 
 many important laws enacted. 
 
 It was a part of the avowed object of the ces- 
 sion made by North Carolina to the United States 
 to furnish " further means of hastening the ex- 
 tinguishment of the national debt." This object 
 wholly failed. The land was to be first sub- 
 ject to the satisfaction of the claims which had 
 originated awinst it under the laws of North 
 Carolina. These claims ultimately absorbed 
 nearly all the land that was fit for cultivation. 
 Congress from time to time ceded the refuse land 
 to Tennessee, and finally, by the act passed Au- 
 gust 7, 1846, surrendered to her the last remnant 
 to which the right of the United States had been 
 previously reserved. 
 
 The constitution of 1796 was not submitted to 
 the people for ratification. The authority of tbe 
 convention established it as the constitution of 
 the state. The constitution of 1834 was the work 
 of a convention assembled in that year to revise 
 and amend the first. It was submitted to the 
 
TENNESSEE 
 
 717 
 
 TENOR 
 
 people, and ratiiBed by popular vote, in 1835. 
 The government was reorganized In 1835-36, in 
 accordance with its provisions. Amendments 
 were ratified in 1853 and 1866. The present con- 
 stitution was framed, submitted to the people, 
 and ratified in 1870, and went into effect May 5, 
 18?0. 
 
 The Lesislatiyb Powek. The Legislature Is 
 ■ styled " the General Assembly." It consists of 
 a senate and house of representatives. The num- 
 ber of senators is noi to exceed one-third the 
 number of representatives. The number of rep- 
 resentatives is not to exceed seventy-five, until 
 the population of the state is a million and a 
 half, and never to exceed ninety-niiie. A repre- 
 sentative must be twenty-one years old, and a 
 senator thirty. In all other respects their quali- 
 fications are the same. They are : citizenship of 
 the United States, three years' residence in the 
 state, and one year's residence in the county or 
 district represented. They are elected by ballot, 
 on the first Tuesday after the first Monday in 
 November of each even year, to serve for two 
 years. The sessions of the assembly are also 
 biennial, commencing on the first Monday in 
 January next ensuing the election. The gov- 
 ernor may, on extraordinary occasions, con- 
 vene the general assembly by proclamation, in 
 which he shall state specifically the purposes 
 for which they are convened, and they cannot 
 enter upon any business except that for which 
 they were called ; Const. Art. III. Every 
 male person of the age of twenty-one years, 
 being a citizen of the United States, a resi- 
 dent of the state for twslve months, and of the 
 county wherein he ofi'ers to vote for six months 
 next preceding the day of election, may be an 
 elector. No qualification is attached except 
 that each voter must give satisfactory evidence 
 to the judge of elections that he has paid the 
 poll tax prescribed by law ; Const. Art. IV. § 1. 
 This provision has not been carried into effect 
 by legislative enactment. 
 
 The Executive Powek. The Governor is to 
 be thirty years of age, a citizen of the United 
 States, and a citizen of the state seven years next 
 before his election. The supreme executive power 
 is vested in him. He is elected at the times and 
 places of electing members of the general assem- 
 bly, and by the same electors. A plurality of 
 votes elects a governor or member of assembly. 
 He holds his office for two years and until his 
 successor is elected and qualified. He is not eli- 
 
 g'ble more than six years in any term of eight, 
 e has a negative on the acts and resolutions of 
 the general assembly. In other respects he has 
 the ordinary powers of the chief executive ma- 
 ^strate of the American states. His compensa- 
 tion can neither be increased nor diminished du- 
 ring the term for which he is elected. 
 
 A Treasurer and a Comptroller of the treasury 
 are appointed for the state by vote of both 
 houses of the general assembly, and hold their 
 offices for a term of two years ; Const. Art. VII. 
 § S. 
 
 TSb Jddioial Powek. The judicial power is 
 vested in one supreme court, in suclr inferior 
 courts as the legislature may establish, and in 
 the judges thereof, and in justices of the peace, 
 and corporation courts. 
 
 The Supreme Cmirt is composed of five judges, 
 of whom not more than two shall reside in any 
 one of the grand divisions of the state. Its ju- 
 risdiction is appellate only, with a few inconsid- 
 erable exceptions ; Const. Art. VI. ; 3 Hayw. 59 ; 
 3 Cold. 255 ; T. & S. Key. S. 4094, et eeq. Its ses- 
 
 sions are held annually, at Knoxville, Nashville, 
 and Jackson. The judges are elected for eight 
 years, by the qualified voters of the state at 
 large. They must be thirty-five years of age, 
 and residents of the state five years before their 
 election. 
 
 The court of general original jurisdiction is 
 tte Circuit Court; it also has general appellate 
 jurisdiction. The state is divided into sixteen 
 judicial circuits ; and three terms of the 
 court are held annually in every county in the 
 state. The people of each circuit elect the judge 
 thereof, for the term of eight years. The only 
 qualifications required by the constitution are 
 that he shall be thirty years of age, a resident of 
 the state for five. years before his election, and 
 of the circuit or district one year. An ap- 
 peal lies from every decision of the circuit court 
 to the supreme court ; Code, § § 3155, 3173, 
 3176. 
 
 The Chancery Court has general original juris- 
 diction of all cases of an equitable nature where 
 the demand exceeds fifty dollars ; Code, § 4280. 
 There are some cases of an equitable nature in 
 which the circuit and county courts have concur- 
 rent jurisdiction with the chancery courts. Act 
 of March 26, 1879, c. 97. The state is divided 
 into twelve chancery districts, in each of which a 
 chancellor is elected, by the people, for eight 
 years. In nearly every county in the state two 
 terms of the chancery court are held annu- 
 ally. An appeal lies to the supreme court from 
 all its decisions. 
 
 Tlie County Court is divided Into a Qilarterly 
 Court and a Quorum Court, The quarterly court 
 is held each quarter In each county In the state 
 by one-half of the justices of the county, and 
 has a police jurisdiction. The quorum court Is 
 held on the first Monday in each month in each 
 county by three justices appointed by the quar- 
 terly court, except in some of the more populous 
 counties where there Is a county judge. The 
 county court has jurisdiction of the probate 
 of wills, the granting of administrations, the 
 appointment of guardians, and the general 
 administration of decedents' estates. There are 
 some cases in which its jurisdiction is concurrent 
 with that of the circuit and chancery courts ; 
 Code, §§ 4201-4205. An appeal lies from its 
 decisions to the circuit court in all cases, and 
 in some to the supreme court; Code, §§ 3147- 
 3154. 
 
 Justices of the Peace have jurisdiction in cases 
 to an extent varying from fifty to five hundred 
 dollars, according to the nature of the demand. 
 An appeal lies from their decisions to the cii-cult 
 court. Act 1875, ch. 11. 
 
 An Attorney- General and a Reporter for the 
 state are appointed by the judges of the su- 
 preme court for a term of eight years. An attor- 
 ney for the state for any circuit or district for 
 which a judge having criminal jurisdiction shall 
 be provided by law, shall be elected by the qual- 
 ifledvoters of such circuit or district, and shall 
 hold his office for a term of eight years, and shall 
 have been a resident of the state five years, and 
 of the circuit or district one year. 
 
 By the constitution of 1796, these judicial offi- 
 cers' were elected by the general assembly, and 
 held their offices during good behavior. By the 
 constitution of 1834, they were elected by the 
 general assembly for a term of years. Since the 
 amendment of the constitution in 1853, they 
 have been elected by the people, as above set 
 forth. 
 
 TENOR. A term used in pleading to de- 
 note that an exact copy is set out. 1 Chitty, 
 Cr. Law, 235 ; 1 Mass. 203 ; 1 East, 180. 
 
TENSE 
 
 718 
 
 TENURE 
 
 The tenor of an instrument signifies the 
 true meaning of the matter therein contained. 
 Cowel. In Scotland an action for proving 
 the purport of a lost deed is called the action 
 of proving the tenor. 
 
 In Chancery Pleading. A certified copy 
 of records of other courts removed into chan- 
 cery by certiorari. Gresl. Ev. 309. 
 
 TENSE. A term used in grammar to de- 
 note the distinction of time. 
 
 The acts of a court of justice ought to be 
 in the present tense : as, proeceptum est, not 
 prmceptum fuit ; but the acts of the party 
 may be in the perfect tense : as, venit et pro- 
 tulit hie in curia, quandam querelam suam, 
 and the continuances are in the perfect tense : 
 as, venerunt, not ceniunt; 1 Mod. 81. 
 
 The contract of marriage should be made 
 in language of the present tense ; 6 Binn. 
 405. See 1 Saund. 393, n. 1. 
 
 TENTJIT (Lat. he held). A term used 
 in stating the tenure in an action for waste 
 done after the termination of the tenancy. 
 See Tenet. 
 
 TENURE (from Lat. tenere, to hold). 
 The mode by which a man holds an estate in 
 lands. 
 
 Such a holding as is coupled with some 
 service, which the holder is bound to perform 
 so long as he continues to hold. 
 
 The thing held is called a tenement ; the occu- 
 pant, a tenant ; and the manner of bis holding 
 constitutes the tenure. Upon common-law prin- 
 ciples, all lands within the state are held di- 
 rectly or indirectly from the king, as lord para- 
 mount or supreme proprietor. To him every 
 occupant of land owes fidelity and service of 
 some kind, as the necessary condition of his oc- 
 cupation. If he fails in either respect, or dies 
 without heirs upon whom this duty may devolve, 
 his land reverts to the sovereign as ultimate pro- 
 prietor. In this country, the people in their 
 corporate capacity represent the state sover- 
 eignty; and every man must hear true alle- 
 giance to the state, and pay his share of the 
 taxes required for her support, as the condition 
 upon which alone he may hold land within her 
 boundaries ; Co. Litt. 65 a ; 3 Bla. Com. 105 : 3 
 Kent, 487. 
 
 In the earlier ages of the world the condition 
 of land was probably allodial, thaX is, without 
 subjection to any superior, — every man occupy- 
 ing as much land found unappropriated as his 
 necessities required. Over this he exercised an 
 unqualified dominion ; and when he parted with 
 his ownership the possession of his successor 
 was equally free and absolute. An estate of this 
 character necessarily excludes the idea of any 
 tenure, since the occupant owes no service or 
 allegiance to any superior as the condition of his 
 occupation. But when the existence of an or- 
 ganized society became desirable to secure cer- 
 tain blessings only by its means to be acquired, 
 there followed the establishment of governments, 
 and a new relation arose between each govern- 
 ment and its citizens, — that of protection on the 
 one hand and dependence on the other, — neces- 
 sarily involving the idea of service to the state 
 as a condition to the use and enjoyment of lands 
 within its boundaries. This relation was of 
 course modified according to the circumstances 
 of particular states ; but throughout Europe it 
 early took the form of the feudal system. See 
 Allodium. 
 
 Some writers suggest that the image of a feu- 
 dal policy may be discovered in almost every 
 age and quarter of the globe ; but, if so, its 
 traces are very Indistinct, and, in fact, we have 
 nothing reliable on the subject until we come to 
 the history of the Gothic conquerors of the Ro- 
 man empire. The military occupation of the 
 country was their established policy, and en- 
 abled them more efieetually to secure their con- 
 quests. The commander-in-chief, as head of the 
 conquering nation, parcelled out the conquered 
 lands among his principal followers, and they in 
 turn granted portions of it to their vassals ; but 
 all grants were upon the same condition of fealty 
 and service. The essential element of a feudal 
 grant was that it did not create an estate of 
 absolute ownership, but the grantee was merely 
 a tenant or holder of the land, on condition of 
 certain services to be rendered by him, the neg- 
 lect of which caused a forfeiture to the grantor. 
 Hargrave's note to Co. Litt. 64 a; Wright, Ten. 
 7 ; Spelm. Fends, c. 2 : 1 Hallam, Mid. Ages, 83 ; 
 6 Cra. 87 ; 13 Johns. 365. 
 
 The introduction of feudal tenures into Eng- 
 land is usually attributed to the Normans, but 
 it evidently existed there before their arrival. It 
 appears from the laws of the Saxons that a con- 
 siderable portion of land was held under their 
 lords by persons of a greater or less degree of 
 bondage, who owed services of either a clvU, 
 military, or agricultural character, A large 
 quantity of the lands which were entered in the 
 Conqueror's celebrated Domesday book were then 
 held by the same tenure and subjected to the 
 same services as they had been in the time of 
 Edward the Confessor. • The Normans probably 
 introduced some new provisions, and attempted 
 to re-establish more, which had become obsolete, 
 and we know there were many severe contests 
 between the Normans and the English with re- 
 spect to their restoration ; but the general sys- 
 tem of their laws remained much the same 
 under the new dynasty of the Normans as it 
 was under that of the Saxons. Hale, Hist, 
 Com. Law, 120 ; Stevens, Const. Eng. 22. 
 
 The principal species of tenure which grew 
 out of the feudal system was the tenure by 
 knight's service. This was essentially mili- 
 tary in its character, and required the pos- 
 session of a certain quantity of land, called a 
 knight's fee, — the measure of which,- in the 
 time of Edward I., was estimated at twelve 
 ploughlands, of the value of twenty pounds 
 per annum. He who held this portion of 
 land was bound to attend his lord to the wars 
 forty days in every year, if called upon. It 
 seems, however, that if he held but half a 
 knight's fee he was only bound to attend twenty 
 days. Many arbitrary and tyrannical incidents 
 or lordly privileges were attached to this tenure, 
 which at length became so odious and oppres- 
 sive that the whole system was destroyed at a 
 blow by the statute of 12 Charles II. c. 24, 
 which 'declared that all such lands should 
 thenceforth be held in free and commofi so- 
 cage,— a statute, says Blackstone, which was 
 a greater acquisition to the civil property of 
 this kingdom than even Magna Charta itself; 
 since that only pruned the luxuriances which 
 had grown out of military tenures, and there- 
 by preserved them in vigor, but the statute of 
 king Charles extirpated the whole, and de- 
 molished both root and branches. See Feu- 
 dal Law ; Co. Litt. 69 ; Stat.Westm. 1, c. 36. 
 
TENURE 
 
 719 
 
 TENURE OF OFFICE 
 
 Tenure in socage seems to have been a 
 relic of Saxon liberty which, up to the 
 time of the abolition of military tenures, had 
 been evidently struggling with the innova- 
 tions of the Normans. Its great redeeming 
 quality was its certainty ; and in this sense it 
 is by the old law-writers put in opposition to 
 the tenure by knight's service, where the 
 tenure was altogether precarious and uncer- 
 tain. Littleton defines it to be where a ten- 
 ant holds his tenement by any certain service, 
 in lieu of all other services, so that they be 
 not services of chivalry or knight's service : 
 as, to hold by fealty and twenty shillings rent, 
 or by homage, fealty, and twenty shillings 
 rent, or by homage and fealty without any 
 rents, or by fealty and a certain specified ser- 
 vice, as, to plough the lord's land for three 
 days. Littleton, 117 ; 2 Bla. Com. 79. See 
 Socage. 
 
 Other tenures have grown out of the two 
 last mentioned species of tenure, and are still 
 extant in England, although some of them are 
 fast becoming obsolete. Of these is the tenure 
 by grand serjeanly, which consists in some 
 service immediately respecting the person or 
 dignity of the sovereign : as, to carry the 
 king's standard, or to be his constable or mar- 
 shal, his butler or chamberlain, or to perform 
 some similar service. While the tenure by 
 petit serjeanty requires some inferior service, 
 not strictly military or personal, to the king ; 
 as, the annual render of a bow or sword. The 
 late duke of Wellington annually presented 
 his sovereign with a banner, in acknowledg- 
 ment of his tenure. There are also tenures 
 by copyhold and in frankalmoigne, in bur- 
 gage and of gavelkind ; but their nature, ori- 
 gin, and history are explained in the several 
 articles appropriated to those terms. See 2 
 Bla. Com. 66 ; Co. 2d Inst. 283. 
 
 Tenures were distinguished by the old com- 
 mon-law writers, according to the quality of 
 the service, into free or base; the former 
 were such as were not unbecoming a soldier 
 or a freeman to perform, as, to serve the lord 
 in the wars ; while the latter were only con- 
 sidered fit for a peasant, as to plough the land, 
 and the like. They were further distinguished 
 with reference to the person from whom the 
 land was held : as, a tenure in capite, where 
 the holding was of the person of the king, 
 and tenure in gross, where the holding was 
 of a subject. Before the statute of Quia 
 Emptores, 18 Edw. I., any person might by 
 a grant of laud have created an estate as a 
 tenure of his person or of his house or manor ; 
 and although by Magna Charta a man could 
 not alienate so much of his land as not to leave 
 enough to answer the services due to -the 
 superior lord, yet, as that statute did not re- 
 medy the evil then complained of, it was pro- 
 vided by the statute above referred to, that 
 if any tenant should alien any part of his land 
 in fee, the alienee should hold immediately of 
 the lord of the fee, and should be charged 
 .with a proportional part of the service 
 due in respect to the quantity of land held by 
 
 him. The consei^uence of which was that 
 upon every such alienation the services upon 
 which the estate was originally granted be- 
 came due to the superior lord, and not to the 
 immediate grantee ; 4 Term, 443 ; 4 East, 
 271 ; Crabb, R. P. § 735. 
 
 The remote position of the United States, 
 as well as the genius of its institutions, has 
 preserved its independence of these embar- 
 rassing tenures. With scarce an exception, 
 its present condition includes no tenure but 
 that which, as we have intimated, is neces- 
 sarily incident to all governments. Every 
 estate in fee-simple is held as absolutely and 
 unconditionally as is compatible with the 
 state's right of eminent domain. Many grants 
 of land, made by the British government 
 prior to the revolution created socage tenures, 
 which were subsequently abolished or modi- 
 fied by the legislatures of the different states. 
 Thus, by the charter of Pennsylvania, the 
 proprietary held his estate of the crown in 
 free and common socage, his grantees being 
 thereby also authorized to hold of him direct, 
 notwithstanding the statute of Quia Emp- 
 tores. The act of Pennsylvania of Novem- 
 ber 27, 1779, substituted the commonwealth 
 in place of the proprietaries as the ultimate 
 proprietor of whom lands were held. In 44 
 Penn. 492, it was held that Pennsylvania 
 titles are allodial not feudal. In New York 
 there was supposed to have been some spe- 
 cies of military tenure introduced by the Dutch 
 previously to their surrender to the English, 
 in 1664; but the legislature of that state in 
 1787 turned them all into a tenure in free and 
 common socage, and finally, in 1830, abol- 
 ished this latter tenure entirely, and declared 
 th^t all lands in that state should thenceforth 
 be held upon a uniform allodial tenure. On 
 this subject, consult Bracton ; Glanville ; 
 Coke, Litt.; ^''right, Tenures ; Maddox, 
 Hist. Bxch.; Sullivan, Lect.; Craig, de 
 Feud. ; Du Cange ; Reeve, Hist, of Eng. 
 Law; Kent, Commentaries; Sharswood's 
 Lecture before the Law Academy of Phila- 
 delphia, 1855 ; Washburn, Real Property. 
 
 TENURE OP OFFICE. ByR. S.§1765, 
 it is provided that every person holding any 
 civil office under the United States to which 
 he has been, or may thereafter be, appointed 
 by and with the advice and consent of the 
 senate, and who shall have become duly qual- 
 ified to act therein, shall be entitled to hold 
 such ofiice during the term for which he was 
 appointed, unless sooner removed by and with 
 the advice and consent of the senate, or by 
 the appointment, by and with the like advice 
 and consent, of a successor in his place, ex- 
 cept that (by § 1 768) during any recess of the 
 senate, the president is authorized to suspend 
 any such officer so appointed, except jiidges, 
 until the next sessson of the senate, and to 
 designate some suitable person, subject to be 
 removed by the designation of another, toper- 
 form the duties of such suspended officer in the 
 mean time. See 12 Ct. CL 455 ; 18 Wall. 
 112 
 
TERCE 
 
 720 
 
 TERRIER 
 
 TERCE. In Scotch Law. A life-rent 
 competent by law to widows who have not 
 accepted of special provisions in the third part 
 of the heritable subjects in which the husband 
 died infeft. It thus corresponds to dower ; 
 Craig, Inst. § 8; Erskine, Inst. 2, 9, 26; 
 Burge, Confl. of Laws, 429-435. See Ken- 
 ning TO THE Terce. 
 
 TERM. Word ; expression ; speech. 
 
 Terms are words or characters by which 
 we announce our sentiments, and make 
 known to others things with which we are ac- 
 quainted. These must be properly construed 
 or interpreted in order to understand the per- 
 sons using them. See Construction ; In- 
 terpretation ; Word. 
 
 In Estates. The limitation of an estate : 
 as, a term for years, for life, and the like. 
 The word term does not merely signify the 
 time specified in the lease, but the estate, 
 also, and interest that passes by that lease : 
 and therefore the term may expire during 
 the continuance of the time : as, by surren- 
 der, forfeiture, and the like. 2 Bla. Com. 
 145; 8 Pick. 339. 
 
 Terms legal and conventional in Scotland are 
 periods for the payment of rent, corresponding 
 to quarter days In England. The legal terms are 
 Whitsunday, which for this purpose is the 15th 
 of May ; and Martinmas, the 11th of November. 
 Bell. Conventional terms are such as are cre- 
 ated by contract between different parlies, the 
 principal ones being Candlemas (Feb. 3) , and 
 Lammas-day (Aug. 1). Moz. & W. 
 
 In Practice. The space of time during 
 which a court holds a session. Sometimes 
 the terra is a monthly,, at others it is a quar- 
 terly period, according to the constitutionjpf 
 the court. 
 
 The whole term is considered as but one 
 day : so that the judges may at any time 
 during the terra revise their judgraents. In 
 the coraputation of the terra,«ill adjournments 
 are to be included; 9 Watts, 200. Courts 
 are presumed to know judicially when their 
 terms are required to be held by public law ; 
 4 Dev. 427. In England, by the Judicature 
 Acts, q. v., the division of the le^l yeariuto 
 the four terms of Hilary, Easter, Trinity, and 
 Michaelmas has been abolished, so far as re- 
 lates to the administration of justice; see 
 Easter Term. 
 
 TERM FEE. In English Practice. A 
 certain sum which a solicitor is entitled to 
 charge to his client, and the client to recover, 
 if successful, from the unsuccessful party; 
 payable for every term in which any proceed- 
 ings subsequent to the summons shall take 
 place. Wnart. Lex. 
 
 TERM FOR YEARS. An estaU for 
 years and the time during which such estate 
 is to be held are each called a term : hence 
 the terra may expire before the time, as, by 
 a surrender. Co. Litt. 45. See Estate 
 FOR Years ; Lease. 
 
 TERM IN GROSS. An estate for years 
 which is not held in trust for the party entitled 
 to the land on the expiration of the term. 
 
 TERM PROBATORY. In an ecclesi- 
 astical suit, the time during which evidence 
 may be taken. Cootes, Eccl. Pr. 240. 
 
 TERMINTTM (Lat.). In CivU Law. 
 A day set to the defendant. Spelman. In 
 this sense Bracton, Glanville, and some others 
 sometimes use it. ReliquisB Spelmanians, 
 p. 71 ; Beames, Glanville, 27, n. 
 
 TERMINUS (Lat.). A boundary or 
 limit, either of space or time. A bound, 
 goal, or borders parting one man's land from 
 another's. Est inter eos non determinis, led 
 tola possessione contentio. Cic. Acad. 4, 43. 
 It is used also for an estate for a term of 
 years: e. g. '^interesse termini." 2 Bla. 
 Com. 143. See Term. 
 
 Terminus a quo (Lat.). The starting-point 
 of aprivatewayissocalled. Hamm. N. P. 196. 
 
 Terminus ad quern (Lat.). The point of ter- 
 mination of a private way is so called. In com- 
 mon parlance, the point of starting and that 
 of termination of a line of railway, are each 
 called the terminus. 
 
 TERMOR. One who holds lands and 
 tenements for a term of years, or life. Lit- 
 tleton, § 100; 4 Tyrwh. 561. 
 
 TERMS, TO BE UNDER. A party is 
 said to be under terms, when an indulgence is 
 granted to him by the court in its discretion, 
 on certain conditions. Thus, when an in- 
 junction is granted ex parte, the party obtain- 
 ing it is put under terms to abide by such 
 order as to damages as the court may make 
 at the hearing. Moz. & W. 
 
 TERRE-TENANT (improperly spelled 
 ter-tenani'). One who has the actual posses- 
 sion of land ; but, in a more technical sense, 
 he who is seised of the land ; and in the 
 latter sense the owner of the land, or the 
 person seised, is the terre-tenant, and not the 
 lessee. 4 W. & S. 256 ; Bacon, Abr. Uses 
 and Trusts. It has been holden that mere 
 occupiers of the land are not terre-tenants. 
 See 16 8. & R. 432 ; 3 Saund. 7, n. 4; 2 
 Bla. Com. 91, 328. 
 
 Contribution among Terre-tenants. The ques- 
 tion whether purchasers, at different times, of 
 land bound by an incumbrance created by the 
 grantor, stand in equal equity as regards this in- 
 cumbrance, and if so, must each contribute pro- 
 portionably to its discharge, has been settled in 
 England in the affirmative, following the rule 
 laid down in the Tear Books and repeated in 
 Coke's Reports ; 3 Wms. Saund. p. 10, n.; SBep. 
 14 b. In this country, the opposite view has been 
 taken ; 1 Johns. Ch. 447 ; 5 id. 235 ; 10 S. & R. 
 450; 30 Penn. 233. See Lecture before Phila. 
 Law Acad. 1863, by G. W. Biddle, LL.D. 
 
 TERRIER. In English Law. A roll, 
 catalogue, or survey of lands, belon^ng either 
 to a single person or a town, in which are 
 stated the quantity of acres, the names of the 
 tenants, and the like. _ . 
 
 By the ecclesiastical law, an intjuiry is di'- 
 rected to be made from time to time of the 
 temporal rights of the clergymen of every 
 parish, and to be returned into the registry of 
 
TERRITORIAL COURTS 
 
 721 
 
 TESTAMENT 
 
 the bishop : this return is denominated a ter- 
 rier. 1 Phill. EV.-602. 
 
 TERRITORIAL COURTS. The courts 
 established in the territories of the United 
 States. See Courts of the United 
 States. 
 
 TERRITORY. A part of a country 
 separated from the rest and subject to a par- 
 ticular jurisdiction. 
 
 The word is derived from terreo, and is said tOi 
 be so called because the magistrate within his 
 jurisdiction has the power of inspiring a salutary 
 fear. JHctwm est ab eo quod magistratws intra fines 
 ejus terendi jits habet. Henriou de Pansy, Auth. 
 Judiciaire, 98. In speaking of the ecclesiastical 
 jurisdictions, Francis Duaren observes that the 
 ecclesiastics are said not to have territory, nor 
 the power of arrest or removal, and are not un- 
 like the Roman magistrates of whom Gellius 
 says vocationem habebant non prehension&nn. De 
 Sacris Eccles. Minist. lib. 1, cap. 4. 
 
 In American Law. A portion of the 
 country subject to and belonging to the 
 United States virhich is not within the bound- 
 ary of any state or the District of Columbia. 
 
 The constitutionof the United States, art. 
 4, s. 3, provides that the congress shall have 
 power to dispose of, and make all needful 
 rules and regulations respecting, the territory 
 or other property of the United States ; and 
 nothing m this constitution shall be construed 
 so as to prejudice any claims of the United 
 States or of any state. 
 
 Congress possesses the power to erect terri- 
 torial governments within the territory of the 
 United States : the power of congress over 
 such territory is exclusive and universal, and 
 their legislation is subject to no control, un- 
 less in the case of ceded territory, as far as it 
 may be affected by stipulations in the ces- 
 sions, or by the ordinance of 1787, under 
 which any part of it has been settled. Story, 
 Const. § 1322; Rawle, Const. 237; 1 Kent, 
 243, 359 ; 1 Pet. 511. See the articles on 
 • the various territories ; State. As to 
 whether a territory is a state under the judi- 
 ciary act, see State. 
 
 TERROR. That state of the mind which 
 arises from the event or phenomenon that 
 may serve as a prognostic of some catas- 
 trophe ; affright from apparent danger. 
 
 One of the constituents of the offence of 
 riot is that the acts of the persons engaged in 
 it should be to the terrpr of the people, as a 
 show of arras, threatening speeches, or turbu- 
 lent gestures ; but it is not requisite in order 
 to constitute this crime that personal violence 
 should be committed ; 3 Camp. 369 ; 1 Hawk, 
 PI. Cr. c. 65, s. 5; 4 C. & P. 378, 538. See 
 RoUe, 109 ; Dalton, Just. c. 186 ; Viner, 
 Abr. Riots (A 8). 
 
 To constitute a forcible entry ; 1 Russ. Cr. 
 287 ; the act must be accompanied with cir- 
 cumstances of violence or terror ; and in or- 
 der to make the crime of robbery there must 
 be violence or putting in fear ; but both these 
 circumstances need not concur ; 4 Binn. 379. 
 See Riot ; Robbery ; Putting in Fear, 
 Vol. II.— 46 
 
 TERTIUS IHTERVENIENS (Lat.). 
 In Civil Law. One who, claiming an in- 
 terest in the subject or thing in dispute in ac- 
 tion between other parties, asserts his right to 
 act with the plaintiff, to be joined with him, 
 and to recover the matter in dispute, because 
 he has an interest in it ; or to join the defen- 
 dant, and with him oppose the interest of the 
 plaintiff, which it is his interest to defeat. He 
 differs from the intervenor, or he who inter- 
 pleads in equity. 4 Bouvier, Inst. n. 3819, 
 note. 
 
 TEST. Something by which to ascertain 
 the truth respecting another thing, 7 Penn. 
 428 ; 6 Whart. 284. 
 
 TEST ACT. The act of 25 Car. II. c. 
 2, by which it was enacted that all persons 
 holding any office, civil or military (except- 
 ing some very inferior ones), or receiving 
 pay from the crown, or holding a place of 
 trust under it, should take the oath of alle- 
 giance and supremacy, and subscribe a de- 
 claration against transubstantiation, and re- 
 ceive the sacrament according to the usage of 
 the Church of England, under a penalty of 
 £500 and disability to the office. 4 Bla. Com. 
 59. Abolished, 9 Geo. IV. c. 17, so far as 
 taking the sacrament is concerned, and new 
 form of declaration substituted. Mozl. & W. 
 
 TESTAMENT. In Civil Law. The ap- 
 pointment of an executor or testamentary 
 heir, according to the formalities prescribed 
 by law. Domat, liv. 1, tit. 1, s. 1. 
 
 At first there were only two sorts of testa- 
 ments among the Eomans, — that called calatis 
 comitiis, and another called in procinctu. (See 
 below.) In the course of time, these two sorts 
 of testament having become obsolete, a third 
 form was introduced, called per ees et libram, 
 which was a fictitious sale of the inheritance to 
 the heir apparent. The inconveniences which 
 were experienced from these fictitious sales 
 again changed the form of testament ; and the 
 praetor introduced another, which required the 
 seal of seven witnesses. The emperors having 
 increased the solemnity of these testaments, they 
 were called written or solemn testaments, to 
 distinguish them from nuncupative testaments, 
 which could be made without writing. After- 
 wards military testaments were introduced, in 
 favor of soldiers actually engaged in military 
 service. 
 
 A testament calatis comitiis, or made in 
 the comitia, — that is, the assembly of the 
 Roman people, — was an ancient manner of 
 making wills used in times of peace among 
 the Romans. The comitia met_ twice a year 
 for this purpose. Those who wished to make 
 such testaments caused to be convoked the 
 assembly of the people by these words, cala- 
 tis comitiis. None could make such wills that 
 were not entitled to be at the assemblies of 
 the people. This form of testament was re- 
 pealed by the law of the Twelve Tables. 
 
 A civil testament is one made according 
 to all the forms prescribed by law, in contra- 
 distinction to a military testament, in making 
 which some of the forms may be dispensed 
 with. Civil testaments are more ancient 
 
TESTAMENT 
 
 722 
 
 TESTATOR 
 
 than military ones ; the former were in use 
 during the time of Romulus, the latter were 
 introduced during the time of Coriolanus. 
 See Hist, de la Jurisp. Rom. de M. Terrason, 
 p. 119. 
 
 A common testament is one which is made 
 jointly by several persons. Such testaments 
 are forbidden in Louisiana, Civ. Code of La. 
 art. 1565, and by the laws of France, Code 
 Civ. 968, in the same words, namely: "A 
 testament cannot be made by the same act, 
 by two or more persons, either for the benefit 
 of a third person, or under the title of a re- 
 ciprocal or mutual disposition." 
 
 A testament ab irato is one made in a gust 
 of passion or hatred against the presumptive 
 heir, rather than from a desire to benefit the 
 devisee. When the facts of unreasonable 
 anger are, proved, the will is annulled as un- 
 just and as not having been freely made. See 
 Ab Ikato. 
 
 A mystic testament (called a solemn testa- 
 ment, because it requires more formality than 
 a nuncupative testament) is a form of making 
 a will which consists principally in enclosing 
 it in an envelope and sealing it m the presence 
 of witnesses. 
 
 This kind of testament is used In Louisiana. 
 Tlje following are the provisions of the Civil 
 Code of that state on the subject, namely : the 
 mystic or secret testament, otherwise called the 
 close testament, is made in the following man- 
 ner : the testator must sign his dispositions, 
 whether he has written them himself, or has 
 caused them to he writen hy another person. 
 The paper containing these dispositions, or the 
 paper serving as their envelope, must be closed 
 and sealed. The testator shall present it thus 
 closed and sealed to the notary and to seven 
 witnesses, or he shall cause it to be closed and 
 sealed in their .presence ; then he shall declare 
 to the notary in the presence of the witnesses 
 that that paper contains his testament written 
 by himself, or by another by his direction, and 
 signed by him, the testator. The notary shall 
 then draw up the act of superscription, which 
 shall be written on that paper, or on the sheet 
 that serves as its envelope, and that act shall be 
 signed by the testator and by the notary and the 
 witnesses. (5 Mart. La. 182.) All that is above 
 prescribed shall be done without interruption or 
 turning aside to other acts ; and in case the tes- 
 tator, by reason of any hindrance that has hap- 
 pened since the signing of the testament, cannot 
 sign the act of superscription, mention shall be 
 made of the declaration made by him thereof, 
 without its being necessary in that case to in- 
 crease the number of witnesses. Those who 
 know not how or are not able to write, and those 
 who know not how or are not able to sign their 
 names, cannot make dispositions in the form of 
 the mystic will. If any one of the witnesses to the 
 act of superscription knows not how to sign, ex- 
 press mention shall be made thereof. In all cases 
 the act must be signed by at least two witnesses. 
 La. Civ. Code, art. 1584-1688. 
 
 A nuncupative testament was one made 
 verbally, in the presence of seven witnesses : 
 it was not necessary that it should have been 
 in writing ; the proof of it was by parol evi- 
 dence. See Ndncupativb. 
 
 In Louisiana, testaments, whether nuncupa- 
 tive or mystic, must be drawn up in writing. 
 
 either by the testator himself, or by some other 
 person under his dictation. The custom of mak- 
 ing verbal statements, that is to say, resulting 
 from the mere deposition of witnesses who were 
 present when the testator made known to them 
 his will, without his having committed it or 
 caused it to be committed to writing, is abro- 
 gated. Nuncupative testaments may be made 
 by public act, or by act under private signature 
 La. Civ. Code, art. 1568-1570. 
 
 An olographic testament is one which is 
 written wholly by the testator himself. In 
 order to be valid, it must be entirely written, 
 dated, and signed by the hand of the testator. 
 It is subject to no other form. See La. Civ. 
 Code, art. 1581. 
 
 TESTAMENTART. Belonging to a 
 testament ; as, a testamentary gift ; a testa- 
 mentary guardian, or one appointed by will 
 or testament ; letters testamentary, or a writ- 
 ing under seal, given by an officer lawfully 
 authorized, granting power to one named 
 as executor to execute a last will. 
 
 TESTAMENTARY CAPACITY. 
 
 Mental capacity sufficient for making a valid 
 will. As to what constitutes, see wills ; 
 12 Am. L. Reg. 385. 
 
 TESTAMENTARY CAUSES. In 
 English Iia'w. Causes relating to probate of 
 testaments and administration and accounts 
 upon the same. They are enumerated among 
 ecclesiastical causes by Lord Coke. 6 Co. 1, 
 and Table of Cases at the end of the part. 
 Over these causes the probate court has now 
 exclusive jurisdiction, by 20 & 21 Vict. c. 77, 
 amended by 21 & 22 Vict. c. 95. See Judi- 
 CATURE Acts for the present jurisdiction. 
 
 TESTAMENTARY GUARDIAN. A 
 guardian appointed by last will of a father 
 to have custody of his child and his real and 
 personal estate till he attains the age of 
 twenty-one. In England, the power to ap- 
 point such guardian was given by 12 Car. II. 
 c. 34. The principles of this statute have 
 been generally adopted in the United States; 
 12 N. H. 437; but no< in Connecticut; 1 
 Swift, Dig. 48. 
 
 TESTAMENTARY POWER. The 
 
 power to make a will is neither a natural nor 
 a constitutional right, but depends wholly up- 
 on statute; 100 Mass. 234. Such power has 
 been expressly conferred by statute in most 
 of the states, in some cases unrestricted, in 
 others with various restrictions by reason of 
 dower and homestead rights, and for other 
 reasons; 3 Jarm. Wills, 721, n.; 731, n. 
 
 TESTATE. The condition of one who 
 leaves a valid will at his death. 
 
 TESTATOR (Lat.). One who has made 
 a testament or will. 
 
 In general, all persons may be testators. 
 But to this rule there are various exceptions. 
 First, persons who are deprived of under- 
 standing cannot make wills ; idiots, lunatics, 
 and infants are ampng this class. Second, 
 persons who have understanding, but being 
 under the power of others cannot freely ex- 
 
TESTATRIX 
 
 723 
 
 TEXAS 
 
 ercise their will ; and this the law presumes 
 to be the case with a married woman, and 
 therefore she cannot make a will without the 
 express consent of her husband to the par- 
 ticular will. When a woman makes a will 
 under some general agreement on the part of 
 the husband that she shall make a will, the 
 instrument is not properly a will, but a writ- 
 inn in the nature of a will or testament. 
 Third, persons who are deprived of their free 
 •will cannot make a testament : aa, a person in 
 duress. 2 Bla. Com. 497 ; 2 Bouvier, Inst, 
 ft. 2102 et seq. See Devisou; Duress; 
 Feme Covert ; Idiot"; Wife ; Will. 
 
 TESTATRIX (Lat.). A woman who has 
 made a will or testament. 
 
 TESTATUM (Lat.). In Practice. The 
 
 name of a writ which is issued by the court 
 of one county to the sheriff of another county 
 in the same state, when the defendant can- 
 not be found in the county where the court is 
 located : for example, after a judgment has 
 been obtained, and a ca. sa. has been issued, 
 which has been returned non est inventus, a 
 testatum ca. sa. may be issued to the sheriff 
 of the county where the defendant is. See 
 Viner, Abr. Testatum, 259. 
 
 In Conveyancing. That part of a deed 
 which commences with the words "this in- 
 denture witnesseth." 
 
 TESTE OF A 'WRIT (Lat.). In Prac- 
 tice. The concluding clause, commencing 
 with the word witness, etc. A signature in 
 attestation of the fact that a writ is issued by 
 authority. A writ which bears the teste is 
 sometimes said to be tested. 
 
 The act of congress of May 8, 1792, 1 
 Story, Laws, 227, directs that all writs and 
 process issuing from the supreme or a circuit 
 court shall bear teste of the chief justice of 
 the supreme court, or, if that office be vacant, 
 of the associate justice next in precedence ; 
 and that all writs of process issuing from a 
 district court shall bear teste of the judge of 
 such court, or, if the said office be vacant, of 
 the clerk thereof. See R. S. §§ 911, 912 
 Sergeant, Const. Law; 20 Viner, Abr. 262 
 Steph. PI. 25. 
 
 TESTES. Witnesses. 
 
 TESTIFY. To give evidence according 
 to law. A witness testifying in regard to 
 conversations had with a party, must state 
 either the language used, or the substance of 
 it. The impression left upon his mind by 
 the conversations is not evidence ; 33 Md 
 135. 
 
 TESTIMONIAL PROOF. In Civil 
 Law. A term used in the same sense as 
 parol evidence is used at common law and in 
 contradistinction to literal proof, which is 
 written evidence. 
 
 TESTIMONIES. In Spanish Law. 
 
 An attested copy of an instrument by a 
 
 notary. Neuman & Baretti, Diet. ; Tex. 
 Dig. 
 
 , TESTIMONY. The statement made by 
 a witness under oath or affirmation. 
 
 Testimony and evidence are synonymous, 
 but evidence includes testimony, as well as all 
 other kinds of proof. It seems settled, both 
 in England and this country, that a prisoner 
 may be convicted on the testimony of an ac- 
 complice alone, though the court may, at its 
 discretion, advise an acquittal unless such tes- 
 timony is corroborated on material points ; 
 Whart. Cr. Law, § 783. 
 
 Where testimony was introduced under objec- 
 tion for the purpose of corroboration, did not 
 tend to connect the defendant with the crime, 
 and the jury were instructed that if they were 
 satisfied of the defendant's guilt upon the whole 
 testimony, they should convict ; held, error ; 127 
 Mass. 424 ; s. o. 34 Am. Rep. 391, n. 
 
 TESTMOIGNE. This is an old and bar- 
 barous French word, signifying, in the old 
 books, evidence. Comyns, Dig. 2'estmoigne. 
 
 TEXAS. The name pf one of the states 
 of the American Union. 
 
 Under the names of Coahulla and Texas, it 
 was a province of Mexico until 1836, when the 
 inhabitants established a separate republic. On 
 the first day of March, 1845, the congress of 
 the United States, by a joint resolution, sub- 
 mitted to the new republic a proposition pro- 
 viding for the erection of the territory of Texas 
 into a new state, and for its annexation to that 
 country under the name of the state of Texas. 
 This proposition was accepted by the existing 
 government of Texas on the 23d of June, 1845, 
 and was ratified by the people in convention on 
 the 6th of July. On the 29th of December fol- 
 lowing, by a joint resolution of congress, the 
 new state was formally admitted into the Union. 
 The present constitution of the state was adopted 
 by a convention of the people, at Austin, on the 
 24th day of November, 1873, and was voted upon 
 and accepted by the people on the 17th day of 
 February, 1S76. 
 
 The powers of the government are divided in- 
 to three distinct departments — ^the legislative, 
 the executive, and the judicial. 
 
 The Leoislative Power. — The legislative 
 power of the state Is vested in a senate and house 
 of representatives. The senate consists of thirty- 
 one members, and cannot be increased above this 
 number. The house of representatives, at pre- 
 sent, consists of ninety-three members, but may 
 be increased after any apportionment upon the 
 ratio of not more than one representative for 
 every fifteen thousand inhabitants ; provided, 
 the number never exceeds one hundred and fifty. 
 
 Senators are chosen by the qualified electors 
 for four years, but a new senate shall be chosen 
 after every apportionment. They are divided 
 into two classes, so that one-half of the senate is 
 chosen biennially. No person can be a senator 
 unless he is a citizen of the United States and a 
 qualified elector of the state, and has been a resi- 
 dent of the state five years next preceding his 
 election, and for the last year thereof a resident 
 of the district for which he is chosen, and has 
 attained the age of twenty-six years. 
 
 The Souse of Sepresentatlves is composed of 
 members chosen by the qualified electors for the 
 term of two years from the day of the general 
 election, at such times and places as are now, or 
 may hereafter be, designated by law. Const, 
 art. 3. No person can be a representative unless 
 he is a citizen of the United States, or was at the 
 time of the adoption of the constitution a citizen 
 
TEXAS 
 
 724 
 
 TEXAS 
 
 of the republic of Texas, and has been an in- 
 habitant of this state two years next preceding 
 his election, and the last year thereof a citizen 
 of the county, city, or town for which he shall 
 be chosen ; and he must have attained the age of 
 twenty-one years. 
 
 Two-thirds of each house constitute a quo- 
 rum to do business. The pay of the members 
 for their services cannot exceed five dollars per 
 day for the first sixty days of each session ; and 
 after that not exceeding two dollars per day for 
 the remainder of the session. They are also en- 
 titled to mileage at the rate of five dollars for 
 every twenty-five miles. 
 
 The regular sessions of the legislature take 
 place biennially. Extra sessions may be called 
 by the governor at any time. 
 
 The third article of the constitution contains 
 the customary provisions for securing the or- 
 ganization of the two houses, choice of olflcers, 
 qualification of members, power of expulsion 
 and punishment of members, privilege from ar- 
 rest, preservation and publication of proceedings, 
 and open sessions. 
 
 The Executive Power. — The executive de- 
 partment of the state consists of a governor, 
 lleutenan1>govemor, secretary of state, comp- 
 troller, treasurer, commissioner of general land 
 oflSce, and attorney-general. All of these officers 
 are elected by the people except the secretary of 
 state, who is appointed by the governor, by and 
 with the advice and consent of the senate. 
 
 The Governor is elected by the qualified electors 
 of the state, at the time and places of elections 
 for members of the legislature. He holds his 
 office for two years from the regular time of in- 
 stallation, and until his successor has been duly 
 qualified. He must be at least thirty years «f 
 age, a citizen of the United States or of Texas at 
 the time of the adoption of the constitution, and 
 have resided in the same for five years next im- 
 mediately preceding his election. He is comman- 
 der-in-chief of the military forces of the state, 
 may require infornjation from officers of the 
 executive department, may convene the legisla- 
 ture, may recommend measures to the legisla- 
 ture, must cause the laws to be executed. In 
 all criminal cases except treason and impeach- 
 ment, he has power after conviction, to grant 
 reprieves, commutations of punishment, and 
 pardons, and under such rules as the legislature 
 may prescribe he has power to remit fines and 
 forfeitures. With the advice and consent of the 
 senate he has the pardoning power in cases of 
 treason. In the exercise of the powers of pardon, 
 reprieve, and remission of fines, he is required 
 to file in the office of the secretary of state his 
 reasons therefor. He has the power to fill 
 vacancies in all state offices, which, when made 
 during the session of the legislature, must be 
 confirmed by the senate. The same veto power 
 is given him as is given by the constitution of 
 the United States to the president, with these ad- 
 ditions, that the power is given him to veto every 
 bill passed by the legislature within the last ten 
 days of the session, by filing his objections in 
 the office of the secretary of state within twenty 
 days after adjournment, and givingnotice thereof 
 by public proclamation. If any bill contains 
 several items of appropriation, he can object to 
 one or more of such items and approve the other 
 portion of the bill. Every order, resolution, or 
 vote to which the concurrence of both houses 
 of the legislature is necessary, except on ques- 
 tions of adjournment, shall be printed and ap- 
 proved by the governor before it shall take effect, 
 and if disapproved, shall be repassed as in cases 
 of a bill. 
 
 A lAeutenant-Oovemor is chosen at every elec- 
 tion for governor, by the same persons and in 
 the same manner, continues in office for the 
 same time, and must possess the same qualifica- 
 tions. In voting for governor and lieutenant- 
 governor, the electors are to distinguish for 
 whom they vote as governor and for whom as 
 lieutenant-governor. The lientenant-govenior 
 by virtue of his office, is president of the sen- 
 ate, and has, when in committee of the whole a 
 right to debate and vote on all questions, and 
 when the senate is equally divided, to give the 
 casting vote. In case of the death, resignation 
 removal from office, inability or refusal of the 
 governor to serve, or of his impeachment or ab- 
 sence from the state', the lieutenant-governor 
 exercises the power and authority appertaining 
 to the office of governor until another is chosen 
 at the periodical election and is duly qualified, 
 or until the govei-nor impeached, absent, or die 
 abled is acquitted, returns, or his disability is 
 removed. 
 
 The lieutenant-governor, while he acts as pre- 
 sident of the senate, receives for his f ervices the 
 same compensation and mileage as allowed to 
 the members of the senate. 
 
 The Seal of the State is a star of five points, 
 encircled by olive and live oak branches and the 
 words " The State of Texas." 
 
 The Judicial Powee.— The judicial power is 
 vested in one supreme court, in one court of ap- 
 peals, in district courts, in county courts, in 
 commissioners' courts, in courts of justices of 
 the peace, and in such other courts ae may be 
 established by law. Power is given the legisla- 
 ture to establish criminal courts in districts 
 where there is a city containing thirty thousand 
 inhabitants. All judicial officers are elected by 
 the qualified voters of the state at a general 
 election. 
 
 The Supreme Coiirt consists of a chief justice 
 and two associate justices, any two of whom 
 form a quorum, and the concurrence of two 
 judges is necessary to the decision of a case. No 
 person is eligible as a member of the supreme 
 court unless he be at the time of his election a 
 citizen of the United States or the state of Texas, 
 and unless he shall have attained the age of 
 thirty years, and shall have been a practising 
 lawyer or a judge of a court in the state, or such 
 lawyer and judge together, at least seven years. 
 They hold their offices for six years, and receive 
 an annual salary fixed by law of not more than 
 three thousand five hundred and fifty dollars. 
 
 The supreme court has appellate jurisdiction 
 only, coextensive with the limits of the state; 
 it only extends to civil cases of which the dis- 
 trict courts have original or appellate jurisdic- 
 tion, and to appeals from interlocutory judg- 
 ments, with such exceptions and under such 
 regulations as may be prescribed by the legisla- 
 ture. It and the judges thereof have the powerto 
 issue the writ of mandamus, and all other writs 
 necessary to enforce the jurisdiction of the court. 
 It also has power, upon affidavit or otherwise, as 
 by the court may be thought proper, to ascertain 
 such matters of fact as may be necessary to the 
 proper exercise of itj jurisdiction. The supreme 
 court holds its sessions between the months of 
 October and June inclusive, at Austin, Galveston, 
 and Tyler. The clerk is appointed by the courtj 
 and holds his office for four years. 
 
 The Court of Appeals consists of three judges, 
 any two of whom form a quorum. The judges 
 must possess the same qualifications as required 
 of a judge of the supreme court. They receive 
 the same salary and hold their office for the same 
 length of time as prescribed for judges of the 
 
TEXAS 
 
 725 
 
 TEXAS 
 
 supreme court. The court of appeals has ap- 
 pellate jurisdictioa co-extensive with the limits 
 of the state in all criminal cases of whatever 
 grade, and in all civil cases of which the county 
 courts have original or appellate jurisdiction. 
 The court of appeals and the judges thereof 
 have power to issue the writ of habeas corput 
 and such writs as it may deem necessary to enforce 
 its jurisdiction. It sits at the same time and in 
 the same places as the supreme court. 
 
 Sistriet Courts. — The state is divided into a con 
 Venient number of judicial districts. For each 
 district there is elected by the qualified voters a 
 judge, who must be at least twenty-five years of 
 age, must be a citizen of the United States, must 
 have been a practising attorney or a judge of a 
 court in the state for the period of four years, 
 and must have resided in the district in which he 
 is elected for two years next before his election, 
 and receives an annual salary of twenty-five 
 hundred dollars. Two terms are held each year, 
 hut the legislature can provide for more than 
 two terms a year. 
 
 The District Court has original jurisdiction in 
 criminal cases of the grade of felony ; of all 
 suits in behalf of the state to recover penalties, 
 forfeitures, and escheats ; of all cases of divorces ; 
 in cases of misdemeanor involving official mis- 
 conduct; of all suits to recover damages for 
 slander or defamation of character ; of all suits 
 for (he trial of title to land, and for the enforce- 
 ment of liens thereon; of all suits for trial to 
 right of property levied on by virtue of any 
 writ of execution, sequestration, or attachment, 
 when the property levied on shall be equal 
 to or exceed in value five hundred dollars ; and 
 of all suits, complaints, or pleas whatsoever, 
 without regard to any distinction between law 
 and equity, when the matter in controversy shall 
 be valued at or amount to five hundred dol- 
 lars exclusive of interest; the courts and the 
 judges thereof have power to issue writs pf ha- 
 beas eorpm in felony cases and misdemeanors, 
 injunctions, certiorari, and all writs necessary to 
 enforce their jurisdiction. They have appellate 
 jurisdiction and general control in probate mat- 
 ters over the county courts, and original juris- 
 diction and general control over executors, ad- 
 ministrators, guardians, and minors, under such 
 regulations as may be prescribed by the legisla- 
 ture. The clerk is elected by the people, and 
 holds office for two years. In case of vacancy 
 the judge appoints until the vacancy is filled by an 
 election. In the trial of all cases in the district 
 court, either party is entitled to a trial by jury, 
 but no jury is empanelled unless demanded in 
 open court by a party to the case, and then only 
 when the party 'demanding a jury shall pay the 
 jury fee. Thegrand and petit jurors in the dis- 
 trict court are composed of twelve men ; but 
 nine members of a grand jury constitute a quo- 
 rum to transact business and find bills. In trials 
 of civil cases and in trials of criminal cases be- 
 low the grade of felony, nine members of the 
 jury may render a verdict, but when so rendered 
 it shall be signed by every member of the jury 
 concurring in it ; but power is given the legis- 
 lature to modify or change the rule authorizing 
 less than the whole number of the jury to render 
 a verdict. 
 
 All judges of the supreme court, court of ap- 
 peals, and district courts are conservators of the 
 peace. All prosecutions are carried on in the 
 name and by the authority of " The State of 
 Texas," and conclude " against the peace and 
 dtaity of the state." 
 
 The pleading and practice of the district court 
 are peculiar, and deserve some attention. Prior 
 to the revolution which severed Texas form the 
 
 Mexican confederacy, the Spanish civil law, 
 modified to some extent by local statutes, was in 
 force. The common law was introduced at an 
 early period after the declaration of indepen- 
 dence ; but the old system left behind it distinct 
 traces, and some of its features are apparent in 
 the existing laws. Amid the changes which fol- 
 lowed the revolution, when the body of the civil 
 law was abrogated, and the common law was 
 adopted in its application to juries and to evi- 
 dence, and as a rule of decision, where not in- 
 consistent with the constitution and laws, the 
 system of pleading previously in use was care- 
 fully preserved. That system is still in force, 
 except where it has been expressly changed by 
 subsequent legislation altering or establishing 
 the course of proceedings in the courts, orwhere 
 it has been necessarily modified by the introduc- 
 tion of the trial by jury, — a mode of trial wholly 
 unknown to the civil law, — and with it, to a great 
 extent, the practice peculiar to the common-law 
 courts, the analogies of which are constantly 
 consulted by the Texas practitioner. 
 
 The system of pleading formerly in force, and 
 which has impressed its character on that now 
 practised, consisted in written allegations by the 
 parties on either side. 
 
 As defined by the Spanish law-writers, an ac- 
 tion was the legal method of demanding in a 
 court of justice that which is our own and is 
 withheld from us. Actions were divided into real 
 and personal, — the former having reference to 
 the right which we have in a thing, the latter, to 
 the obligation which one has assumed to perform 
 a certain duty. The defence to an action was 
 called an exception. It embraced every allega- 
 tion and defence used to defeat a recovery by the 
 plaintiff. Exceptions were either dilatory, when 
 they delayed or suspended the action, or per- 
 emptory, when they destroyed it and prevented 
 further litigation. 
 
 The first step in the progress of the action was 
 the demand, which was a written petition 
 adapted to the nature of the action, and must 
 have contained the following requisites :— first, 
 the name of the judge to whom it was addressed; 
 second, the name of the plaintifi'; third, the name 
 of the defendant ; fourth, the statement of the 
 cause of action ; fifth, the ground of the demand, 
 or the i-ight by which the relief was sought. 
 
 The demand concluded with the word "juro," 
 which signified that the party had taken an oath 
 that his action was begun in good faith, and the 
 words " el ojlcio de vmd. implora," by which the 
 interposition of the judge was invoked. 
 
 The citation followed the demand. This was 
 the process by which the defendant was brought 
 into court to answer the demand. 
 
 Then followed the contestation, which was the 
 answer made by the defendant, either confessing 
 or denying the plaintiffs right. 
 
 To this the plaintifT might present a replica, or 
 replication ; and the defendant might add a dit- 
 plica, or rejoinder. Here the pleadings origin- 
 ally ended, and new facts could only be pre- 
 sented upon affidavit that they had just come to 
 the knowledge of the party pleading them. 
 
 The history of a lawsuit in the present district 
 courts of the state will give the reader an insight 
 Into their system of pleading and practice, and 
 show how far the ancient form of the pleadings 
 has beep preserved, and wherein it has been 
 modified. 
 
 It will be recollected that the district courts 
 have jurisdiction in all cases without regard to 
 any distinction between law and equity. There 
 is no difference in the mode of proceeding in the 
 application of legal and equitable remedies, nor 
 arb there any forms of action adapted to dilEerent 
 
TEXAS 
 
 726 
 
 TEXAS 
 
 iDJuries. The pleadings in all cases consist of 
 the petition and answer. Demands entitling a 
 party to legal and equitable relief can be united 
 in the same action : an equitable defence can be 
 opposed to a legal demand. The court may so 
 frame its judgment as to afford all the relief re- 
 quired by the nature of the case and which could 
 be granted by a court of law or equity, and may 
 also grant all such orders, writs, and process as 
 may be necessary to make the relief granted ef- 
 fectual. 
 
 There being no forms of action, the rules of 
 pleading known to the common-law' and equity 
 systems are only applicable so far as they are the 
 rules of sound logic and conduce to a clear and 
 methodical statement of the cause of action or 
 ground of defence. No rule of pleading which 
 is purely technical and has reference to the form 
 of proceeding has any place in the system. The 
 pleadings are the same in cases of legal and 
 equitable cognizance, and the application of legal 
 or equitable principles to the decision of the case 
 presented depends upon the facts, and not upon 
 the manner of stating them . 
 
 Every suit is commenced by the filing of the 
 petition, which is a written statement of the 
 cause of action, and of the relief sought by the 
 plaintiff. The petition should contain certain for- 
 mal but essential parts, the omission of any of 
 which would render it defective. They are — 
 
 The marginal venue : "The State of Texas, 
 County of ;" the term of the court : " Dis- 
 trict Court, Term, a.d. 18 — ;" the address: 
 
 " To the District Court of said County ;" the 
 commencement, consisting of the names and 
 residences of the parties : the statement of the 
 cause of action, which should be a clear, logical, 
 and succinct statement of the facts, which, upon 
 the general denial, the plaintiff would be bound 
 to prove, and which if admitted will entitle him 
 to a judgment; the statement of the nature 
 of the relief sought ; the signature of the party 
 or his attorney. The petition must be filed with 
 the clerk of the proper county, whose duties are 
 the same as at common law, to indorse upon it 
 the day on which it was filed, together with its 
 proper file number. The clerk must also make 
 an entry of the case in his docket. 
 
 Next follows the citation, or writ, which is is- 
 sued by the clerk, and dated, tested, and signed 
 by him. Its style is, " The State of Texas." It 
 is addressed to the sheriff or any constable of 
 the^county in which the defendant is alleged to 
 be found, and commands him to summon the 
 defendant to appear at the next term of the 
 court to answer the plaintiff's petition, a certified 
 copy of which accompanies the «f rit.' The cita- 
 tion is executed by the sheriff like an original writ. 
 
 There are certain auxiliary writs, which may 
 be sued out at the commencement or during the 
 progress of the suit, whereby the effects of the 
 defendant or the property in controversy may be 
 seized by the sheriff and held until replevied or 
 until the final termination of the suit, so that it 
 may be subject to the judgment rendered there- 
 in, or the defendant is restrained from the com- 
 mission of some act until the question of right 
 between the parties shall be determined. These 
 are the writs of attachment, garnishment, seques- 
 tration, and injunction. But there is no peculi- 
 arity in these writs under the Texas practice 
 which renders it necessary to explain them here. 
 
 When the citation has been served, the defend- 
 ant is in court, and must file his answer within 
 the time prescribed by law for pleading. In 
 those counties in which the term of the court is 
 limited to one week, the answer must be filed on 
 or before the fourth day of the term ; if the term 
 is not so limited, the answer must be filed on or 
 
 before the fifth day ; and this is, accordingly 
 called the appearance-day. ' 
 
 Upon the morning of the appearance-day the 
 cases upon the appearance docket are called over 
 by the judge in the order in which they have 
 been filed. If the defendant in any suit has 
 failed to appear by his answer, a final Judgment 
 by default maybe rendered against him, and a 
 short entry to that effect is made upon the 
 judge's docket. If the cause of action is liqui- 
 dated, and established by an instrument in writ- 
 ing, the amount due may be computed by the 
 clerk, or may be found by a jury, upon a writ 
 of Inquiry, if asked for by either party. Where 
 the cause of action is unliquidated, the damages 
 must be assessed by a jury upon the writ of in- 
 quiry when the case is reached on the regular 
 call of the docket. "When the damages have 
 been assessed by the clerk, or jury, as the case 
 may be, judgment is accordingly entered upon 
 the minutes. 
 
 The defendant, if he does nof intend to resist 
 the suit, may appear and confess judgment ; or, 
 if he has pleaded, he maj- vithdraw his answer, 
 and suffer judgment by nil dicit,—m either of 
 which cases the appearance is a waiver of all 
 errors. If the defendant intends to resist the 
 plaintiff's recovery, he must, within the time 
 prescribed for pleading, file his answer. 
 
 The answer includes all defensive pleading, and 
 may consist of as many several matters, whether 
 of law or of fact, as the defendant may deem 
 necessary for his defence and which may be per- 
 tinent to the cause. They must all be filed at 
 the same time, and in the due order of pleading. 
 
 The answer may be by demurrer, usually 
 termed an excq>tion, or by plea, or by both. The 
 demurrer is either general or special ; and its 
 ofiSce is the same as under the common-law sys- 
 tem of pleading. It is not, however, an admis- 
 sion of the allegations of fact, but simply calls 
 upon the court to say whether, granting all the 
 facts to be as the plaintiff states them, any canee 
 of action is shown requiring an answer. 
 
 A plea is an answer either denying the truth of 
 the matter alleged in the petition, or admitting 
 its truth, and showing some new matter to avoid 
 its effect. 
 
 The exception or plea may, as at common law, 
 be either dilatory or peremptory. 
 
 The diie order of pleading above referred to is 
 the ancient and what is said to be the natural 
 order of pleading. See Pleabino. 
 
 The answer may embrace one or all of the 
 grounds of defence, provided only that they he 
 presented in the due order of pleading. 
 
 The defendant may also, by,a plea in recon- 
 vention, which is analogous to the cross-bill of the 
 equity system, show that he has a claim against 
 the plaintiff similar in its nature to that set out 
 in the petition, and pray for judgment over 
 against the plaintiff; and upon the trial, judg- 
 ment will be given for that party who may estab- 
 lish the largest claim, for the excess of his 
 claim over that of his opponent. 
 
 The pleading may proceed one step further; 
 the plaintiff may, by a replication, set up new 
 matter in avoidance of that relied upon by the 
 defendant in his answer ; or he may, as at com- 
 mon law, demur to the answer. 
 
 No formal joinder in demurrer or In issue is 
 necessary. Tie demurrer is to be decided by the 
 court before the questions of fact are submitted 
 to the jury. The party against whom judgment 
 is rendered sustaining the demurrer may abide 
 by his pleadings, — in which case judgment final 
 will be given against him ; or he may, under 
 leave of the court, remove the objection bj 
 amendment. 
 
THAINLAND 
 
 727 
 
 THOROUGHFARE 
 
 The questions of law having been thus dis- 
 posed of, the issues of fact arising upon the 
 pleadings are submitted to the jury in the same 
 manner aa at common law, who may respond 
 thereto by a general or special verdict, upon 
 which the judgment of the court is then ren- 
 dered. 
 
 There is established in each county of the state 
 a County Court, which is a court of record, pre- 
 sided over by a county judge, elected by the 
 qualified voters of the county, who is required 
 to be well informed in the law of the state, and 
 who holds office for two years and until his suc- 
 cessor is elected and qualified. He receives such 
 fees and perquisites as may be prescribed. 
 
 The county courts have original jurisdiction of 
 all misdemeanors of which exclusive original 
 jurisdiction is not given to the justices' courts by 
 law, and where the fine to be imposed shall ex- 
 ceed two hundred dollars ; and they have exclu- 
 sive original jurisdiction in all civil cases where 
 the matter ia controversy shall exceed in value 
 two hundred dollars, and not exceed five hun- 
 dred dollars, exclusive of interest ; and concur- 
 rent jurisdiction with the district court when the 
 matter in controversy shall exceed five hundred 
 dollars and not exceed one thousand dollars ex- 
 clusivfl of interest. They have appellate jurisdic- 
 tion in cases originating in justices' courts, but 
 appeals in civil cases are limited to civil cases 
 where the judgment appealed from exceeds 
 twenty dollars exclusive of costs. They also 
 have the general jurisdiction of a probate court. 
 The county court holds a term for civil business 
 at least once every two months, and a term for 
 criminal business once every month. 
 
 Justices of the Peace have jurisdiction in crimi- 
 nal matters of all cases where the penalty or 
 fine to be imposed by law may not be more than 
 two hundred dollars, and in civil matters of all 
 cases where the amount in controversy is two 
 hundred dollars or less exclusive of interest, of 
 which exclusive original jurisdiction is not given 
 to the district or county courts. 
 
 THAINLAITD. In Old English Law. 
 
 The land which was granted by the Saxon 
 kings to their thains or thanes was so called. 
 Crabb, Comm. Law, 10. 
 
 THANE (Sax. thenian, to serve). In 
 Saxon Lavr. A word which sometimes 
 signifies a nobleman, at others a freeman, a 
 magistrate, an officer, or minister. A tenant 
 of the part of the king' s lands called the king" s 
 "thaneage." Termes de la Ley. 
 
 THEFT. A popular term for larceny. 
 
 In Scotch Law. The secret and felonious 
 abstraction of the property of another for sake 
 of lucre, without his consent. Alison, Cr. 
 Law, 250. 
 
 THEFT-BOTE. The act of receiving a 
 man's goods from the thief, after they had 
 been stolen by him, with the intent that he 
 shall escape punishment. 
 
 This is an offence punishable at common 
 law by fine and imprisonment. Hale, PL 
 Cr. 130. See Compounding a Felony. 
 
 THELUSSON ACT. The stat. 39 & 40 
 Geo. III., passed in consequence of objec- 
 tions to a Mr. Thelusson's will, for the pur- 
 pose of preventing the creation of perpetui- 
 ties; see Pekpetuity ; 4 Ves. 221. 
 
 THEOCRACY. A species of govern, 
 meut which claims to be immediately directed 
 by God. 
 
 Za religion, qui, dans I'antiquitl, s'associa sou- 
 vent au despotisme, pour rigner par son bras ou a 
 son ornbrage, a quelquefois tenti de rigner seule, 
 C'est ce qu'elle appelait le rigne le Dim, la theo- 
 cratic. Matter, l3e I'Influence des Moeurs 6ur le( 
 Lois, et de I'Influence des Lois sur les Moeurs, 189. 
 (Eeligion, which in former times frequently as 
 Bociated itself with despotism, to reign by iti 
 power or under its shadow, has sometimes at 
 tempted' to reign alone ; and this she has callec 
 the reign of God — theocracy.) 
 
 THIEF. One who has been guilty of lat^ 
 ceny or theft. The term covers both com- 
 pound and simple larceny ; 1 Hill (N. Y.), 
 25. 
 
 THINGS. By this word is understooc 
 every object, except man, which may become 
 an active subject of right. Code du Cantor 
 de Berne, art. 332. In this sense it is op- 
 posed, in the language of the law, to th( 
 word persons. See Chose ; Pkopekty ; 
 Res. 
 
 THIRD-BOROW. In Old English Law 
 A constable. Lombard, Duty of Const. 6 ; 
 28 Hen. VIII. c. 10. 
 
 THIRD PARTIES. A term used to in- 
 clude all persons who are not parties to th( 
 contract, agreement, or instrument of writing 
 by which their interest in the thing conveyec 
 is sought to be affected. 1 Mart. La. N. s. 
 384. See, also, 2 La. 425 ; 6 Mart. La. 528. 
 
 But it is diiBcult to give a very definite 
 idea of third persons; for sometimes those 
 who are not parties to the contract, but whc 
 represent the rights of the original parties, a: 
 executors, are not to be considered third per- 
 sons. See 1 Bouvier, Inst. n. 1335 et seq. 
 
 THIRD PENNY. In Old EngUsl 
 Law. Of the fines and other profits of the 
 county courts (originally, when those courts 
 had superior juriseiiction, before other courts 
 were created) two parts were reserved to the 
 king, and a third part or penny to the 
 earl of the county. See Denaeitts Teetiue 
 CoMiTATUs ; Kennett, Paroch. Antiq. 418 ; 
 Cowel. 
 
 THIRLAGE. In Scotch Law. A 
 servitude by which lands are astricted oi 
 thirled to a particular mill, and the possessors 
 bound to grind their grain there, for the pay- 
 ment of certain multures and sequels as the 
 agreed price of grinding. Erskine, Inst. 2. 
 9. 18. 
 
 THOROUGHFARE. A street or way 
 opening at both ends into another street or 
 public highway, so that one can go through 
 and get out of it without returning. It dif- 
 fers from a cul de sac, which is open only at 
 one end. 
 
 Whether a street which is not a thorough- 
 fare is a highway seems not fully settled ; 
 1 Ventr. 189 ; 1 Hawk. PI. Cr. c. 76 ; § 1. 
 In a case tried in 1790, where the locus in 
 quo had been used as a common street for 
 
THOUGHT 
 
 728 
 
 THREE-DOLLAR PIECE 
 
 fifty years, but was no thoroughfare, Lord 
 Kenyon held that it would make no difi'er- 
 ence ; for otherwise the street would be a trap 
 to make people trespassers; 11 East, 376. 
 This decision in several subsequent cases was 
 much criticized, though not directly overruled ; 
 5 Taunt. 126 ; 5 B. & Aid. 456 ; 3 Bingh. 
 447 ; 1 Camp. 260 ; 4 Ad. & E. 698. But 
 in a recent English case the decision of Lord 
 Kenyon was affirmed by the unanimous opin- 
 ion of the court of queen's bench. The doc- 
 trine established in the latter case is that it is 
 a question for the jury, on the evidence, 
 whether a place which is not a thoroughfare 
 is a highway or not; 14 E. L. & E. 69. And 
 see 28 id. 30. The United States authorities 
 seem to follow the English ; 8 Allen, 242 ; 
 24 N. Y. 559 (overruling 23 Barb. 103) ; 87 
 111. 189 ; s. c. 29 Am. Rep. 49 and note ; 
 contra, 2 R. I. 172. See Highway ; 
 Street. 
 
 THOUGHT. The operation of the mind. 
 No one can be punished for his mere thoughts, 
 however wicked they may be. Human laws 
 cannot reach them, — first, because they are 
 unknown ; and secondly, unless made mani- 
 fest by some action, they are not injurious to 
 any one ; but when they manifest themselves, 
 then the act which is the consequence may be 
 punished. Dig. 50. 16. 225. 
 
 THREAD. A figurative expression used 
 to signify the central line of a stream or 
 watercourse. Hargr. Law Tracts, 6 ; 4 
 Mas. 397 ; Holt, 490. See Eilcm Aqu^ ; 
 .Island ; Watercourse ; River. 
 
 THREAT. In Criminal La'nr. A 
 menace of destruction or injury to the lives, 
 character, or property of those against whom 
 it is made. To extort money under threat 
 of charging the prosecutor with an unnatural 
 crime has been held to be robbery ; 1 Park. 
 C. R. 199 ; 12 Ga. 293 ; but to extort money 
 or other valuable thing by threat of prosecu- 
 tion for passing counterfeit money, or any 
 prosecution except that for an unnatural 
 crime, is not robbery ; 7 Humph. 45 ; though 
 it is a criminal offence; 11 Mod. 137; 2 
 Dall. 399, n. See Threatenikg Letter. 
 
 In Evidence. Menace. 
 
 When a confession is obtained from a per- 
 son accused of crime, in consequence of a 
 threat, evidence of such confession cannot be 
 received, because, being obtained by the tor- 
 ture of fear, it comes in so questionable a 
 shape that no credit ought to be given to it ; 
 1 Leach, 263. This is the general principle : 
 but what amounts to a threat is not so easily 
 defined. It is proper to observe, however, 
 that the threat must be made by a person hav- 
 ing authority over the prisoner, or by another 
 in the presence of such authorized person 
 and not dissented from by the latter ; 8 C. & 
 P. 733. See Confession. 
 
 THREATENING LETTER. Sending 
 threatening letters to persons for the purpose 
 of extorting money is said to be a misdemea- 
 nor at common law ; Hawk. PL Cr. b. 1, c. 
 
 52, s. 1 ; 2 Russ. Cr. 575; 4 Bla. Com. 126. 
 To be indictable, the threat must be of a 
 nature calculated to overcome a firm and 
 prudent man ; but this rule has reference to 
 the general nature of the evil threatened, 
 and not to the probable effect of the threat 
 on the mind of the partieulaj party ad- 
 dressed; 1 Den. Cr. Cas. 512. The party 
 who makes a threat may be held to bail for 
 his good behavior. See Comyns, Djg. Bat- 
 tery (D). 
 
 In England, by statute 24 & 25 Vict. c. 
 96, § 46, written accusations of crime, punish- 
 able by death or penal servitude for not less 
 than seven years, or accusations of assaults 
 with intent to commit any rape or buggery 
 with a view or intent to extort or gain by 
 means of such letter or writing, any property, 
 chattel, money, or valuable security, or 
 other valuable thing, constitute an indictable 
 offence. Similar statutes exist in many of 
 the United States, though they vary some- 
 what in their provisions, some of them re- 
 quiring the threatening to have been done 
 "maliciously," others "knowingly." The 
 indictment for this offence need not specify 
 the crime threatened to be charged, for the 
 specific nature of the crime which the pris- 
 oner intended to charge might intentionally he 
 left in doubt; 1 Mood. 134; 36 Ohio St. 
 318; 3 Heisk. 262 ; 26 Iowa, 122; 8 Barb. 
 547. The threat need not be to accuse be- 
 fore a judicial tribunal ; 2 M. & R. 14 ; 30 
 Mich. 460; 1 Cox, C. C. 22. A person 
 whose property has been stolen, has himself 
 no power to punish the thief without process 
 of law, and cannot claim the right to obtain 
 compensation for the loss of his property by 
 maliciously threatening to accuse him of the 
 offence, or to do an mjury to his person or 
 property, with intent to extort property from 
 him ; 24 Me. 71 ; 128 Mass. 55. A mere 
 threat that the prosecutor would be indicted 
 or complained of, has been held to be within 
 the' statute, even though no distinct crime 
 was sppken of in the letter, because of the 
 likelihood of threatening letters being written 
 with as much disguise and artifice as possible, 
 but still being sufficient to accomplish the pur- 
 pose intended ; 68 Me. 473 ; 68 Mo. 66. See 
 3 Cr. L. Mag. 720; 2 Whart. Cr.L. §1664; 
 2 Bish. Cr. L. § 1200. 
 
 THREE-DOLLAR PIECE. A gold 
 coin of the United States, of the value of 
 three dollars. 
 
 The three-dollar piece was authorized hy the 
 seventh section of the act of Feb. 21, 18.53. 10 
 Stat, at L. It is of the same fineness as the other 
 gold coins of the United States. The weight of 
 the coin is 77.4 grains. The devices upon this 
 coin, and upon the gold dollar also, are not au- 
 thoritatively fixed by act of congress, as is 
 the case with all the other gold coins of the 
 United States ; and hence greater latitude was 
 allowed to the treasury department and the ofli- 
 cers of the mint in fixing these devices. The 
 obverse of the piece presents an ideal head, em- 
 blematic of America, enclosed within the na- 
 tional legend ; on the reverse is a wreath com- 
 posed of wheat, cotton, corn, and tobacco, the 
 
tHROAT 
 
 729 
 
 TICKET 
 
 staple productions of the United States ; within 
 the wreath the value and date of the coin are given. 
 The three-dollar piece is a legal tender In pay- 
 ment of any amount ; R. S. § 8511. 
 
 THROAT. In Medical Jurisprudence. 
 The anterior part of the neck. Uunglison, 
 Med. Diet. ; Cooper, Diet. ; 2 Good, Study 
 of Med. 302 ; 1 Chitty, Med. Jur. 97, n. 
 
 The word throat, in an indictment which 
 charged the defendant with murder by cut- 
 ting the throat of the deceased, does not 
 mean, and is not to be confined to, that part 
 of the neck which is scientifically called the 
 throat, but signifies that which is commonly 
 called the throat ; 6 C. & P. 401. As to 
 meaning of throat disease, in life insurance, 
 see 22 Int. Rev. Rec. 152. 
 
 TICK. Credit : as, if a servant usually 
 buy for the master upon tick, and the servant 
 buy something without the master's order, 
 yet if the master were trusted by the trader 
 he is liable; 3 Kebl. 625; 10 Mod. Ill; 3 
 Esp. 214: 4 id. 174. 
 
 TICKET. A certificate or token showing 
 the existence of some right in the holder 
 thereof. For example, a ticket may give the 
 right of admission to a place of assembly or 
 to the conveyance of a common carrier, or it 
 may give the right to be repossessed of some 
 property that has been placed in the hands of 
 a bailee or pledgee, as a cloak-room ticket, a 
 pawnbroker's ticket, etc. 
 
 A railroad ticket is not a contract, nor 
 does it contain a contract. It is a mere re- 
 ceipt or voucher, showing that the passenger 
 has paid his fare from one place to another ; 
 17 N. Y. 306 ; 52 N. 'B. 596 ; 13 Reporter, 
 295. In this sense, however, it may be used 
 as evidence of a contract. Thus a ticket 
 from A. to B. is evidence that the holder has 
 entered into a contract with the carrier to be 
 conveyed from A. to B.; 14C. L. J. 31. So 
 a railway ticket for one part of a route does 
 not entitle the holder to travel over another 
 part of the route for which the same fare is 
 • charged; 10 C. L. J. 84. 
 
 It is not yet thoroughly settled what con- 
 ditions may be printed on a ticket, and how 
 far they are binding on the passenger. But 
 it may perhaps be stated, as a general rule, 
 that such conditions are not binding unless 
 they are reasonable, and the passenger's as- 
 sent thereto is clearly established; 2 C. L. J. 
 460; 1 Q. B. Div. 515; 1 C. P. Div. 418; 
 Lawson, Carriers, 116-123. 
 
 When there is a condition on a ticket that 
 it shall not be good unless used on or before 
 a certain date, it is a sufficient compliance 
 with the condition if the use is begun on the 
 last day named, even though the journey which 
 the ticket describes be not conipleted until 
 after that day has expired 14 C. L. J. 461. 
 
 A carrier may require passengers to pur- 
 chase tickets before entering his conveyance, 
 snd, when this is not done, may charge an, 
 extra rate of fare; 18 111. 460; 53 Me. 279; 
 6 S. L. Rev. 766. But the carrier must fur- 
 Dish the passenger with all conveniences 
 
 necessary for obtaining tickets; 19 111. 352; 
 43 111.364; 15 Minn. 49; 38 Ind. 116; 56 
 Ala. 246. The carrier, however, need not 
 keep its ticket office open after the published 
 time for the departure of a train which has 
 been delayed ; 43 111. 176. The carrier can 
 at all times demand the exhibition of a pas- 
 senger's ticket; 3 Park. Cr. Cas. 326; 27 
 Ind. 277 ; 15 N. Y. 455 ; or the surrender 
 of the ticket in exchange for a conductor's 
 check; 22 Barb. 130. But a passenger ought 
 not to be obliged to give up his ticket without 
 receiving such check when at a considerable 
 distance from his destination ; 20 N. H. 251 ; 
 39 Ind. 509. Persons holding commutation 
 or season tickets may be required to exhibit 
 them whenever requested, and on refusal may 
 be compelled to pay the regular fare ; 7 Phila. 
 11; 36 Conn. 287. 
 
 Limitations as to the time within which 
 tickets may be used are usually valid. "Good 
 for this day only" is the commonest form of 
 limitation; 63 N. Y. 101 ; 1 Allen, 267; 40 
 Vt. 88 ; 5 So. L. Rev. 770. A commuta- 
 tion ticket, good for a certain number of 
 miles of travel, but limited to certain time, 
 is worthless after the terra has expired, even 
 though the whole number of miles has not 
 been travelled; 25 Ohio St. 70; 40 Iowa, 
 45 ; 64 Mo. 464. 
 
 As a rule, a carrier's contract for convey- 
 ance is an entirety. The passenger cannot 
 leave the train, and then afterwards resume 
 his journey on another. The production of 
 a ticket wiU not help him to enter the second 
 train, unless the ticket expressly authorize 
 him to stop over ; 47 Iowa, 82 ; 71 Penn. 
 432; id. 66; 24 N. J. L. 435; 46 N. H. 
 213; 31 Barb. 556. Nor will he be aided 
 by the fact that it has been customary to 
 allow passengers to stop over at intermediate 
 stations. The company may at any time make 
 a regulation to the contrary without notice 
 to passengers ; 46 N. H. 213 ; 71 Penn. 432. 
 
 Fare is the sum chatted by a can-ier for 
 the conveyance of a person by land or water. 
 Though one who holds himself out as a car- 
 rier of passengers is bound to transport all 
 who apply to him for conveyance, yet it is 
 presupposed that he shall receive reasonable 
 compensation for the performance of this 
 duty. A carrier may therefore lawfully ex- 
 pel from his conveyance all persons who re- 
 fuse to pay their fare. After I person has 
 been so expelled, he cannot gain readmittance 
 by tendering the fare, because in this way a 
 railway train might be stopped at any time 
 by the whim or humor of any of its passen- 
 gers, thereby interfering with the reasonable 
 arrangements of the company, and jeopar- 
 dizing human life; 15 Gray, 20; 19 Mich. 
 305 ; Thomps. Carriers, 29, 340. 
 
 The legislature of a state may, in the exer- 
 cise of its police power, regulate and liiftit 
 the fares charged by common carriers, as 
 being property "affected with a public in- 
 terest;" 94 U. S. 113; Pierce, Railroads, 
 466 ; Cooley, Const. Lim. 742. 
 
TIDE 
 
 7»0 
 
 TIMBER-TREES 
 
 ' In life insurance. In accident insurance 
 it is the practice to issue tickets to the insured. 
 These are made out by the company and sold 
 by agents indifferently to all who apply for 
 them. The sale and delivery by an agent, and 
 the payment of the price, give the owner a 
 valid claim against the company, subject to 
 the conditions set forth in the ticket ; 45 Mo. 
 221 ; May, Ins. § 70. 
 
 TIDE. The ebb and flow of the sea. 
 
 The law takes notice of three kinds of 
 tides, viz.: the high spring tides, which are 
 the fluxes of the sea at those tides which hap- 
 pen at the two equinoctials | the spring tides, 
 which happen twice every month, at the full 
 and change of the moon ; the neap or ordi- 
 nary tides, which happen between the full and 
 change of the moon, twice in twenty-four 
 hours ; Ang. Tide-Wat. 68. The changeable 
 condition of the tides produces, of course, 
 corresponding changes in the line of high- 
 water mark. Now, inasmuch as the soil of 
 all tidal waters up to the limit of high-water 
 mark, at common law, is in the crown, or, in 
 this country, in the state, it is important to 
 ascertain what is high-water mark, in legal 
 contemplation, considered as the boundary of 
 the royal or public ownership. This owner- 
 ship has been held to be limited by the aver- 
 age of the medium high tides between the 
 spring and the neap in each quarter of a lunar 
 revolution during the year, excluding only 
 extraordinary catastrophes or overflows ; 4 
 De G. M. & G. 206. See, also, 3 B. Se Aid. 
 967 ; 2 Dougl. 629 ; 7 Pet. 324 ; 1 Pick. 180 ; 
 2 Johns. 357 ; Ritkr. 
 
 TIDE-WATER. Water which flows and 
 reflows with the tide. All arms of the sea, 
 bays, creeks, coves or rivers, in which the 
 tide ebbs and flows, are properly denomi- 
 nated tide-waters. 
 
 The term tide- water is not limited to water 
 which is salt, but embraces, also, so much of 
 the water of fresh rivers as is propelled back- 
 wards by the ingress and pressure of the tide ; 
 5 Co. 107 ; 2 Dougl. 441 ; 6 CI. & F. 628 ; 
 7 Pet. 324; 108 Mass. 436. The supreme 
 court of the United States has decided that, 
 although the current of the river Mississippi 
 at New Orleans may be so strong as not to be 
 turned backwards by the tide, yet if the 
 effect of the tide upon the current is so great 
 as to occasion a regular rise and fall of the 
 water, it might properly be said to be within 
 the ebb and flow of the tide; 7 Pet. 324. 
 The flowing, however, of the waters of a lake 
 into a river, and their reflowing, being caused 
 by the occasional swell and subsidence of the 
 lake, and not by the ebb and flow of regular 
 tides, do not constitute such a river a tidal 
 or, technically, navigable river ; 20 Johns. 98. 
 And see 17 Johns. 195; 2 Conn. 481; 
 Woolr. Waters, c. ii.; Ang. Tide- Wat. o. iii. 
 
 The bed or soil of all tide- waters belongs, 
 in England, to the crown, and in this country 
 to the state in which they lie ; and the waters 
 themselves are public ; so that all persons may 
 
 use the same for the purposes of navigation 
 and flshery, unless restrained by law ; 5 B. 
 
 6 A. 304 ; 1 Macq. Hou. L. 49 ; 4 Ad. & 
 E. 384 ; 8 id. 329 ; Ang. Waterc. c. iii., 
 xiii. In England, the powerof parlinmentto 
 restrain or improve these rights is held to be 
 absolute; 4 B. & C. 598. In this country, 
 such a power is subject to the limitations of 
 the federal constitution ; and while both the 
 general and state governments may adopt 
 measures for the improvement of navigation : 
 
 7 Pick. 209 ; 6 Rand. 245 ; 4 Eawle, 9 ; 9 
 Conn. 436 ; and the states may grant private 
 rights in tide-waters, provided they do not 
 conflict with the public right of navigation ; 
 21 Pick. 344 ; 23 id. 360 ; yet neither the 
 general nor the state governments have the 
 power to destroy or materially impair the 
 right of navigation. The state governments 
 have no such power, because its exer- 
 cise would be in collision with the laws of 
 congress regulating commerce; 9 Wheat. 1; 
 the general government has no such power, 
 because the states have never relinquished to 
 it such a power over the waters within their 
 jurisdictional limits; 2 Pet. 245. See Bkidgb. 
 As to the power of the state to regulate the 
 public fisheries, see Fishery. And see, 
 generally. River; Biparian Proprie- 
 tors ; Wharf. 
 
 TIE. When two persons receive an equal 
 number of votes at an election,, there is said 
 to be a tie. 
 
 In that case neither is elected. When the 
 votes are given on any question to be decided 
 by a deliberative assembly, and there is a tie, 
 the question is lost. See Majority. 
 
 TIEL. An old manner of spelling tel: 
 such as, nul tiel record, no such record. 
 
 TIEMFO INHABIL (Span.). In 
 Louisiana. A time when a man is not able 
 to pay his debts. 
 
 A man cannot dispose of his property, at 
 such a time, to the prejudice of his creditors ; 4 
 Mart. La. n. s. 292; 3 Mart. La. 270; 10 id. 70. 
 
 TIERCE. A liquid measure, containing 
 the third part of a pipe, or forty-two gallons. 
 
 TIGNI IMMITTENDI (Lat.). In CivU 
 Law. A servitude which confers the right 
 of inserting a beam or timber from the wall 
 of one house into that of a neighboring house, 
 in order that it may rest on the latter and 
 that the wall of the latter may bear this 
 weight. Dig. 8. 2. 36 ; 8. 5. 14. 
 
 TIMBER-TREES. Oak, ash, elm, in 
 all places, and, by local custom, such other 
 trees as are used in building ; 2 Bla. Com. 
 281 ; also beech, chestnut, walnut, cedar, fir, 
 aspen, lime, sycamore, and birch trees; 6 
 George III. ch. 48 ; and also such as are used 
 in the mechanical arts ; Lewis, Cr. L. 506. 
 Timber-trees, both standing, fallen, and 
 .severed and lying upon the soil, constitute a 
 portion of the reSty, and are embraced in a 
 mortgage of the land ; 1 Washb. R. P. IS ; 
 1 Wall. 63, 59, 60; 2 Greenl, 173; W.S87; 
 
TIME 
 
 731 
 
 TIME 
 
 19 Me. 53 ; 5 Pa. L. J. 412; and pass, by a 
 judicial sale under such mortgage, to the pur- 
 chaser ; 4 Eep. 62, a.; 11 Rep. 81, b; 1 
 Washb. R. P. 12, 13 ; 1 Wall. 53 ; 19 Me. 
 53; 54 Me. 313; 1 Denio, 554; 18 Penn 
 185; 45 id. 128; 61 id. 294. A contract 
 for the sale of timber-trees is a contract 
 for the sale of an interest in lands ; 10 N. Y. 
 117; 53 Penn. 206; 69 id. 474; and, as 
 such, is within the Statute of Frauds; 33 
 Penn. 266. The better action for damages 
 for cutting and carrying away timber trees, 
 seems to be that of trespass quare clausum 
 fregit, et de bonis asportatis (unless other- 
 wise designated by statute); 2 Greenl. 173 ; 
 id. 387; U Penn. 195; 4 Watts, 220; 16 
 Penn. 871 ; 4 id. 254. See Waste. 
 
 TIMS. The measure of duration. Lapse 
 of time often furnishes a presumption, stronger 
 or weaker according to the length of time 
 which has passed,' of the truth of certain 
 facts, such as the legal title to rights, pay- 
 ment of or release from debts. See Pkk- 
 scription; Memory; Limitations. 
 
 The general rule of law is that the per- 
 formance of a contract must be completed at 
 or within the time fixed by the contract ; 
 Leake, Contr. 834. Wherever, in cases not 
 governed by particular customs of trade, the 
 parties bind themselves to the performance of 
 duties within a certain number of days, they 
 have to the last minute of the last day to per- 
 form their obligations ; 6 M. & G. 593. 
 
 Generally, in computing time, one day is 
 included and one excluded ; 2 P. A. Browne, 
 18 ; 4 T. B. Monr. 464 ; 26 Ala. N. s. 547 ; 
 see 2 Harr. Del. 461; 5 Blackf. 319; 16 
 Ohio, 408 ; 10 Rich. So. C. 395 ; excluding 
 the day on which an act is done, when the 
 computation is to be made from such an act ; 
 15 Ves. Ch. 248 ; 1 Ball & B. 196 ; 16 Cow. 
 659; 1 Pick. 485; 3 Denio, 12; 27 Ala. N. 
 s. 311; 19 Mo. 60; see 18 Conn. 18; inclu- 
 ding it, according to Dougl. 463 ; 3 East, 
 417; 2 P. A. Browne, 18; 15 Mass. 193; 4 
 Blackf. 320 ; 18 How. 151 ; except where 
 the exclusion will prevent forfeiture ; 2 
 Camp. 294 ; 4 Me. 298. See 2 Sharsw. Bla. 
 Com. 140, n. 3; Comyns. Dig. 2'emps ; 1 
 Rop. Leg. 518 ; 2 Pothier, Obi. Evans ed. 
 50. Time from and after a given day ex- 
 cludes that day ; 1 Pick. 485 ; 7 J. J. Marsh. 
 202; 1 Blackf. 392; 9 Cra. 104; 4 N. H. 
 267 ; 3 Penn. E. 200 ; 1 N. & M'C. 565. But 
 see 94 U. S. 560. A policy of insurance in- 
 cludes the last dav of the term for which it is 
 issued ; L. R. 5 JExch. 296 ; 34 L. J. C. B. 
 11. Particular words, e. g. at, on, or upon a 
 certain time, will be construed according to a 
 reasonable interpretation of the contract ; 10 
 A. & E. 370. Deeds, bills of exchange, 
 letters, and other written instruments are 
 generally construed to have been made and 
 issued at the time of their date, but the ex- 
 ecution of a deed may be averred and proved 
 according to the fact ; 10 Exch. 40. 
 
 The construction of contracts with regard 
 to the time of performance is the same in 
 
 equity as at law ; but in case of mere delay 
 in performance, a court of equity will in 
 general relieve against the legal consequences 
 and decree specific performance upon equitable 
 terms notwithstanding the delay, if the mat- 
 ter of the contract admits of that form of 
 remedy. In such cases it is said that in equity 
 time is not considered to be of the essence of 
 the contracts ; 3 D. M. & G. 284 ; L. R. 3 
 Ch. 67 ; Leake, Contr. 845. Ordinarily 
 time is not of the essence of the contract, 
 but it may be made so by express stipulation 
 of the parties ; or it may arise by implication, 
 because of the nature of the property in- 
 volved ; or because of the avowed object of 
 the seller or purchaser ; or from the nature of 
 the contract itself; or by one party giving the 
 other notice that performance must be made 
 within a certain reasonable time fixed in the 
 notice ; 2 Ohio St. 326 ; 5 C. E. Green, 367 ; 
 15 West. Jur. 97; time is always of the es- 
 sence of unilateral contracts; 61 N. Y. 629 ; 
 35 Md, 352; 50 111. 298. 
 
 In determining whether stipulations as to the 
 time of performance of a contract of sale are 
 conditions precedent, the court will seek to 
 discover the real intention of the parties in 
 deciding whether time is of the essence of 
 the contract ; Benj. Sales, § 593. If a thing 
 sold is of greater or less value according to 
 the lapse of time, stipulations with regard to 
 it must be literally complied with both at law 
 and in equity ; 42 Barb. 320 ; 10 Allen, 239. 
 See 15 West. Jur. 97. 
 
 In Pleading. A point in or space of 
 duration at or during which some fact is 
 alleged to have been committed. 
 
 In criminal actions, both the day and the 
 year of the commission of the offence must 
 appear; but there need not be an express 
 averment, if they can be collected from the 
 whole statement ; Comyns, Dig. Indictment 
 (G 2) ; 5 S. & R. 315. The prosecutor may 
 give evidence of an offence committed on any 
 day which is previous to the finding of the 
 indictment ; Archb. Cr. PL 95 ; 5 S. & R. 
 316 ; but a day subsequent to the trial must 
 not be laid; Add. Penn. 36. 
 
 In mixed and real actions, no particular 
 day need be alleged in the declaration ; 3 
 Chitty, PI. 620; Gould, PI. c. 3, § 99 ; 
 Mete. Yelv. 182 a, n. ; Cro. Jac. 311. 
 
 In personal actions, all traversable affirma- 
 tive fects should be laid as occurring on some 
 day; Gould, PI. § 63 ; Steph. PI. 292; Yelv. 
 94 ; but no day need be alleged for the oc- 
 currence of negative matter; Comyns, Dig. 
 Pleader (C 19) ; Plowd. 24 a; and a failure 
 in this respect is, in general, aided after ver- 
 dict ; 13 East, 407. Where the cause of ac- 
 tion is a trespass of a permanent nature or 
 constantly repeated, it should be laid with a 
 continuando, which title see. The day need 
 not, in general, be the actual day of commit, 
 sion of the fact; 2 Saund. 5 a,- Co. Litt. 
 283 a; 12 Johns. 287 ; 3 N. H. 299 ; if the 
 actual day is not stated, it should be laid 
 under a videlicet; Gould, Fl. c. S, § 63. 
 
TIME-TABLES 
 
 732 
 
 TITLE 
 
 The exact time may become material, and 
 must then be correctly laid ; 10 B. & C. 215 ; 
 1 Cr. & J. 394 ; 4 S. & R. 576 ; 7 id. 405 ; 
 1 Stor. 628 ; as, the time of execution of an 
 executory written document; Gould, PI. c. 
 8, § 67. The defence must follow the time 
 laid in the declaration, if time is not ma- 
 terial ; 1 Chittjr, PI. 509 ; 1 Saund. 14, 82 ; 
 need not when it becomes material ; 2 Saund. 
 5 a, b (n. 3) ; or in pleading matter of dis- 
 charge ; 2 Burr. 944 ; Plowd. 46 ; 2 Stra. 
 944 ; or a record ; Gould, PI. § 83. 
 
 TIME-TABLES. See Punctuality. 
 
 TIPPLING-HOtrSE. A place where 
 spirituous liquors are sold and drunk in vio- 
 lation of law. Sometimes the mere selling 
 is considered as evidence of keeping a tip- 
 pling-house. 
 
 TIPSTAFF. An ofiRcer appointed by the 
 marshal of the court of king's bench, to at- 
 tend upon the judges with a kind of rod or 
 staff' tipped with silver. 
 
 In the United States, the courts sometimes 
 appoint an officer who is known by this name, 
 whose duty it is to wait on the court and 
 serve its process. 
 
 TITHES. In English Iia-w. Aright to 
 the tenth part of the produce of lands, the 
 stocks upon lands, and the personal industry 
 of the inhabitants. These tithes are raised 
 for the support of the clergy. Almost all the 
 tithes of England and Wales are now com- 
 muted into rent charges, under the Tithe 
 Commutation Act (stat. 6 & 7 Will. IV. c. 
 71), and the various statutes since passed for 
 its amendment; 3 Steph. Com. 731; Moz. 
 &W. 
 
 In the United States, there are no tithes. 
 See Cruise, Dig. tit. 22; AylifFe, Parerg. 
 504. 
 
 TITHING. In English Law. For- 
 merly, a district containing ten men, with 
 their families. In each tithing there was a 
 tithingman, whose duty it was to keep the 
 peace, as a constable now is bound to do. St. 
 Armand, in his Historical Essay on the Leg- 
 islative Power of England, p. 70, expresses 
 an opinion that the tithing was composed not 
 of ten common families, but of ten families 
 of lords of a manor. 
 
 TITHINGMAN. In Sazon Law. The 
 
 head or chief of a decennary of ten families : 
 he was to decide all lesser causes between 
 neighbors. Now tithingmen and constables 
 are the same thing. Jacob, Law Diet. 
 
 In New England, a p.irish officer to keep 
 good order in church. Webster, Diet. 
 
 TITLE. Estates. The means whereby 
 the owner of lands hath the just possession 
 of his property. Co. Litt.,S45 ; 2 Bla. Com. 
 195. See 1 Ohio, 349. This is the defini- 
 tion of title to lands only. 
 
 A bad title is one which conveys no pro- 
 perty to the purchaser of an estate. 
 . A doubtful title is one which the court 
 does not consider to be so clear that it will 
 
 enforce its acceptance by a purchaser, nor so 
 defective as to declare it a bad title, but only 
 subject to so much doubt that a purchaser 
 ought not to be compelled to accept it ; 1 J 
 & W. 568 ; 9 Cow. 344. 
 
 A good title is that which entitles a man by 
 right to a property or estate, and to the law- 
 ful possession of the same. 
 
 A marketable title is one which a court of 
 equity considers to be so clear that it will en- 
 force its acceptance by a purchaser. 
 
 The ordinary acceptation of the term market- 
 able title would convey but a very imperfect no- 
 tion of Its legal and technical import. To com- 
 mon apprehension, unfettered by the technical 
 and conventional distinction of lawyers, all 
 titles being either good or bad, the formerwould 
 be considered marketable, the latter non-mar- 
 ketable. But this is not the way they are re- 
 garded in courts of equity, the distinction taken 
 there being, not between a title which is abso- 
 lutely good or absolutely, bad, but between a 
 title which the court considers to be so clear that 
 it will enforce its acceptance by a purchaser, and 
 one which the court will not go so far as to de- 
 clare a bad title, but only that it is subject to so 
 much doubt that a purchaser ought not to be 
 compelled to accept it ; 1 J. & W. 568. In short, 
 whatever may be the private opinion of the 
 court as to the goodness of the title, yet if there 
 be a reasonable doubt either as to a matter of 
 law or fact involved in it, a purchaser will not 
 be compelled to complete his purchase ; and 
 such a title, though it may be perfectly secure 
 and unimpeachable as a holding title, is said, in 
 the current language of the day, to be unmar- 
 ketable ; Atkins, Tit. 2. 
 
 The doctrine of marketable titles is purely 
 equitable and of modern origin ; id. 26. At law 
 every title not bad is marketable ; 5 Taunt. 625 ; 
 6 «. 263 ; 1 Marsh. 258. See 2 Penn. L. J. 17. „, 
 
 There are several stages or degrees requi- 
 site to form a complete title to lands and ten- 
 ements. The lowest and most imperfect 
 degree of title is the mere possession, or actual 
 occupation of the estate, without any appa- 
 rent right to hold or continue such possession : 
 this happens when one man disseises another. 
 The next step to a good and perfect title is 
 the right of possession, which may reside in 
 one man while the actual possession is not in 
 himself, but in another. This right of pos- 
 session is of two sorts : an apparent right of 
 possession, which may be defeated by proving 
 a better, and an actual right of possession, 
 which will stand the test agamst all opponents. 
 The mere right of property, the jus proprie- 
 tatis, without either possession or the right of 
 possession. 2 Bla. Com. 195. 
 
 Title to real estate, is acquired by two me- 
 thods, namely, by descent and hy purchase. 
 See these words. 
 
 Title to personal property may accrue in 
 three different ways : by original acquisition ; 
 by transfer by act of law ; by transfer by 
 act of the parties- 
 Title by original acquisition is acquired by 
 occupancy, see Occupancy ; by accession, 
 see Accession ; by intellectual labor. See 
 Patent ; Copyright. 
 
 The title to personal property is acquired 
 and lost by transfer by act of law, in various 
 
TITLE 
 
 733 
 
 TITLE OF A CAUSE 
 
 •ways : by forfeiture ; succession ; marriage ; 
 judgment; insolvency; intestacy. See those 
 titles. 
 
 Title is acquired and lost by transfer by 
 the act of the party, by gift, by contract or 
 sale. 
 
 In general, possession constitutes the crite- 
 rion of title of personal property, because 
 no other means exist by which a knowledge 
 of the fact to whom it belongs can be at- 
 tained. A seller of a chattel is not, there- 
 fore, required to show the origin of his title, 
 nor, in general, is a purchaser, without notice 
 of the claim of the owner, compellable to 
 make restitution; but it seems that a pur- 
 chaser from a tenant for life of personal chat- 
 tels will not be secure against the claims of 
 those entitled in remainder; Cowp. 432; 1 
 Bro. C. C. 274; 2 Term, 376; 3 Atk. 44; 3 
 V. & B. 16. 
 
 As an exception to the rule that possession 
 is the criterion of title of property may be 
 mentioned the case of ships, the title of which 
 can be ascertained by the register; 15 VesT 
 Ch. 60; 17 id. 251; 8 Price, 256, 277. 
 
 To convey a title, the seller must himself 
 have a title to the property which is the sub- 
 ject of the transfer.! But to this general rule 
 there are exceptions. The lawful coin of the 
 United States will pass the property along 
 with the possession. A negotiable instrument 
 indorsed in blank is transferable by any per- 
 son holding it, so as by its delivery to give a 
 good title "to any person honestly acquiring 
 It;" 3 B. & C. 47; 3 Burr. 1516; 5 Term, 
 683. 
 
 In Legislation. That part of an act of 
 the legistature by which it is known and dis- 
 tinguished from other acts ; the name of the 
 act. 
 
 Formerly the title was held to be no part 
 of a bill, though it could be looked to when 
 the statute was ambiguous; 3 Wheat. 610; 
 31 Wise. 431 ; but it could not enlarge or 
 restrain the provisions of the act itself; 5 
 Wall. 107. In later years constitutional pro- 
 visions have required that the title of every 
 legislative act shall correctly indicate the sub- 
 ject of the act ; Cooky, Const. Lim. 172. 
 The object of this was mainly to prevent 
 surprise in legislation. An act must have but 
 one general object, which is fairly indicated 
 by the title ; a title may be general if it does 
 not cover incongruous legislation; id. 176; 
 7 Ind. 681 ; 50 N. Y. 653 ; the use of the 
 words " other purposes" have no effect; 22 
 Barb. 642. It is said that the courts will 
 construe these provisions liberally rather than 
 embarrass legislation by a construction, the 
 strictness of which is unnecessary to the at- 
 tainment of the beneficial purposes for which 
 they were adopted; Cooley, Const. Lim. 
 178. In construing an act, the court will 
 strike from it all that relates to the object not 
 indicated by the title, and sustain the rest if 
 it is complete in itself ; id. 181. These pro- 
 visions are usuidly considered mandatory, 
 
 though they were held to be directory in 4 
 Cal. 388; 6 Ohio, n. s. 187. 
 
 It is the settled rule in Pennsylvania that 
 where an act of assembly is entitled a sup- 
 plement to a former act, and the subject 
 thereof is germane to that of the original 
 act, its subject is sufficiently expressed; 77 
 Penn. 429 ; 88 id. 42; 13 Fed. Rep. 431. 
 
 See a paper in 5 Rep. Am. Bar Associa- 
 tion (1882) by U. M. Rose. 
 
 In Literature; The particular division of 
 a subject, as a law, a book, and the like : for 
 example, Digest, book 1, title 2. 
 
 Personal Relations. A distinctive ap- 
 pellation denoting the rank to which the in- 
 dividual belongs in society. 
 
 The constitution of the United States for- 
 bids the grant by the United States or any 
 state of any title of nobility. Titles are be- 
 stowed by courtesy on certain officers : the 
 president of the United States sometimes re- 
 ceives the title of excellency; judges and 
 members of congress, that of honorable; and 
 members of the bar and justices of the peace 
 are called esquires. See Rank ; Nobility ; 
 Braekenridge, Law Misc. 
 
 Titles are assumed by foreign princes, and 
 among their subjects they may exact these 
 marks of honor; but in their intercourse with 
 foreign nations they are not entitled to them 
 as a matter of right; Wheat. Int. Law, pt. 
 2, c. 3, § 6. 
 
 In Pleading. The right of action which 
 the plaintiff has. The declaration must show 
 the plaintiff's title, and if such tide be not 
 shown in that instrument the defect cannot 
 he cured by any of the future pleadings. 
 Bacon, Abr. Pleas, etc. (B 1). 
 
 In Rights. The name of a newspaper, a 
 book, and the like. 
 
 The owner of a newspaper having a par- 
 ticular title has a right .to such title ; and an 
 injunction will lie to prevent its use unlaw- 
 fully by another ; 8 Paige, Ch. 75. See 
 Pardessus, ii. 170. See Tkadk-Mabk. 
 
 TITLE-DEEDS. Those deeds which are 
 evidences of the title of the owner of an estate. 
 The person who is entitled to the inheritance 
 has a right to the possession of the title-deeds ; 
 1 Carr. & M. 653. As to a lien created by 
 deposit of title-deeds, see Lien. 
 
 TITLE OP A CAtrSE. The peculiar 
 designation of a suit, consisting usually of the 
 name of the court, the venue, and the parties. 
 The method of arranging the names of the 
 parties is not everywhere uniform. The Eng- 
 lish way, and that formerly in vogue in this 
 country, and still retained in many of the 
 states, is for the actor in each step of the 
 cause to place his name first, as if he were 
 plaintiff in that particular proceeding, and 
 his adversary's afterwards. Thus the case of 
 Upton vs. White would, if taken from a 
 county court to the supreme court on a writ 
 of error by defendant, be entitled White vs. 
 Upton. In New York and many other states 
 
TITLE OF A DECLARATION 734 
 
 TONNAGE 
 
 which have enacted codes of procedure, the 
 rule now is that the original order of names 
 of parties is retained throughout. See Ad 
 Sfctam. 
 
 TITLE OP A DECLARATION. At the 
 top of every declaration the name of the court 
 is usually stated, with the term of which the 
 declaration is filed, and in the margin the 
 venue — namely, the city or county where the 
 cause is intended to be tried is set down. 
 The first two of these compose what is called 
 the title of the declaration ; 1 Tidd, Pr. 
 366. 
 
 TITLE OP CLERGYMEN (to orders). 
 Some certain place where they may exercise 
 their functions ; also, an assurance of being 
 preferred to some ecclesiastical benefice. 2 
 Steph. Com. 661 ; Whart. Diet. 
 
 TITLE OF ENTRY. The right to en- 
 ter upon lands. Cowel. See Entry. 
 
 TO WIT. That is to say ; namely ; 
 scilicet ; videlicet. 
 
 TOFT. A place or piece of ground on 
 which a house formerly stood, which has 
 been destroyed by accident or decay ; 2 
 Broom & H. Com, 17. 
 
 TOGATI (Lat.). In Roman Law. Un- 
 der the empire, when the toga had ceased to 
 be the usual costume of the Romans, advo- 
 cates were nevertheless obliged to wear it 
 whenever they pleaded a cause. Hence they 
 were called togati. This denomination re- 
 ceived an ofiioial or legal sense in the impe- 
 rial constitutions of the fifth and sixth cen- 
 turies ; and the words togati, consortium 
 (corpus, ordo, collegium) togatorum, fre- 
 quently occur in those acts. 
 
 TOKEN. A document or sign of the ex- 
 istence of a fact. 
 
 Tokens are either public or general, or 
 privy tokens. They are either true or false. 
 When a token is false and indicates a general 
 intent to defraud, and is used for that pur- 
 pose, it will render the offender guilty of the 
 crime of cheating; 12 Johns. 292 ; but if it is 
 a mere privy token, as, counterfeiting a let- 
 ter in another man's name, in order to cheat 
 but one individual, it would not be indict- 
 able; 9 Wend. 182; 1 Dall. 47; 2 Const. 
 139; 4 Hawks, 348; 6 Mass. 72; 2 Dev. 
 199; iRich. 244. 
 
 In Common Law. In England, this 
 name is given to pieces of metal, made in 
 the shape of money, passing among private 
 persons by consent at a certain value. 2 
 Chitty, Com. Law, 182. They are no longer 
 permitted to pass as money. 
 
 TOLERATION. In some countries, 
 where religion is established by law, certain 
 sects who do not agree with the established 
 religion are nevertheless permitted to exist ; 
 and this permission is called toleration. They 
 are permitted and allowed to remain rather 
 as a matter of favor than a matter of right. 
 By the Toleration Act of 1 W. & M. c. 18, and 
 subsequent statutes down to the 35 & 36 Vict. 
 
 c. 26, enabling any person to take any degree 
 (other than a divinity degree) in the uni- 
 versities of Oxford, Cambridge, or Durham, 
 the disabilities of the Roman Catholics, Jews, 
 and Dissenters have been almost wholly re- 
 moved ; 2 Steph. Com. 707. See Catholic 
 Emancipation Act. 
 
 In the United States there is no such thinir 
 as toleration ; all men. have an equal right to 
 worship God according to the dictates of their 
 consciences. See Christianity; Reli- 
 gion; Religious Test. 
 
 TOLL. In Contracts. A sum of money 
 for the use of something, generally applied to 
 the consideration which is paid for the use of 
 a road, bridge, or the like, of a public nature. 
 
 The compensation paid to a miller for 
 grinding another {)erson's grain. 
 
 The rate of taking toll for grinding is regu- 
 lated by statute in most of the states. See 
 2 Washb. R. P.; 6 Q. B. 31. 
 
 In Real Law. To bar, defeat, or take 
 away : as, to toll an entry into lands is to 
 deny or take away the right of entry, 
 
 TOLLS. In a general sense, tolls signify 
 any manner of customs, subsidy, prestation, 
 imposition, or sum of money demanded for 
 exporting or importing of any wares or mer. 
 chandise, to be taken of the buyer. Co. 2d 
 Inst. 58. 
 
 TON. Twenty hundredweight, each hun- 
 dredweight being one hundred and twelve 
 pounds avoirdupois. See act of congress of 
 Aug. 30, 1842, c. 270, s. 20 ; 3 Wall. Jr. 46 : 
 29 Penn. 27 ; 9 Paige, 188 ; Measure, 
 
 TONNAGE. The capacity of a ship or 
 vessel. 
 
 This term is most usually applied to the capa- 
 city of a vessel in tons as determined by the 
 legal mode of measurement ; in England reck- 
 oned according to the number of tons burden 
 a ship will carry, but here to her internal cubic 
 capacity ; and, as a general rule, in the United 
 States the official tonnage of a vessel is consid- 
 erably below the actual capacity of the vessel to 
 carry freight. 40 N. T. 2S9 ; see infra. ^ 
 
 For the rule for determining the tonnage of 
 British vessels under the law of England, see 
 McCulloch, Com. Diet. Tonnage; English Mer- 
 chant Shipping Act of 1854, §§ 20-39. Foard's 
 Mer. Shipping, p. 17. 
 
 The duties paid on the tonnage of a ship 
 or vessel. 
 
 These duties were altogether abolished in rela- 
 tion to American vessels by the act of May 31, 
 1830, s. 1. And, by the second section of the 
 same act, all tonnage-duties on foreign vessels 
 are abolished, provided the president of the 
 United States shall be satisfied that the discrimi- 
 nating or countervailing duties of such foreign 
 nation, so far as they operate to the disadvan- 
 tage of the United States, have been abolished. 
 
 But tonnage duties have been revived, and 
 are now imposed as follows : Upon vessels ^¥hich 
 shall be entered in the United States from any 
 foreign port or place there shall be paid duties 
 as follows : On vessels built within the United 
 States, but belonging wholly or in part to sub- 
 jects of foreign powers, at the rate of thirty cents 
 per ton ; on other vessels not of the United 
 States, at the rate of fifty cents per ton. Upon 
 
TONNAGE 
 
 735 
 
 TONNAGE 
 
 every vessel not of the United States, which shall 
 he entered in one district from another district, 
 having on hoard goods, wares, or merchandise, 
 taken In one district to be delivered in another 
 ■ district, duties shall be paid at the rate of fifty 
 cents per ton. Nothing in this section shall be 
 deemed in any wise to Impair any rights or privi- 
 leges which have been or may be acquired by 
 any foreign nation under the laws and treaties of 
 the United States relative to the duty of tonnage 
 on vessels. On all foreign vessels which shall 
 be entered in the United States from any foreign 
 port or place, to and with which vessels of the 
 United States are not ordinarily permitted to en- 
 ter and trade, there shall be paid a duty at the 
 rate of two dollars per ton ; and none of the du- 
 ties on tonnage, above mentioned, shall be levied 
 on the vessels of any foreign nation if the presi- 
 dent of the United States shall be satisfied that 
 the discriminating or countervailing duties of 
 such foreign nations, so far as they operate to 
 the disadvantage of the United States, have been 
 abolished. In addition to the tonnage-duty above 
 imposed, there shall be paid a tax, at the rate 
 of thirty cents per ton, on vessels which shall be 
 entered at any custom-house within the United 
 States from any foreign port or place ; and any 
 rights or privileges acquired by any foreign na- 
 tion under the laws and treaties of the United 
 States relative to the duty of tonnage on vessels 
 shall not be impaired ; and any vessel, any offi- 
 cer of which shall not be a citizen of the United 
 States, shall pay a tax of fifty cents per ton. E. 
 S. § 4219. 
 
 No vessel belonging to any citizen of the 
 United States, trading from one port within the 
 United States to another port within the United 
 States, or employed in the bank, whale, or other 
 fisheries, shall be subject to tonnage tax or duty, 
 if such vessel be licensed, registered or enrolled. 
 E. S. § 4220. 
 
 The tonnage duty imposed on all vessels en- 
 gaged In foreign commerce shall be levied but 
 once within one year, and when paid by such 
 vessel, no further tonnage tax shall be collected 
 within one year from the date of such payment. 
 But this provision shall not extend to foreign 
 vessels ehtered in the United States from any 
 foreign port, to and with which vessels of the 
 United States are not ordinarily permitted to en- 
 ter and trade. § 4223. 
 
 A duty of fifty cents per ton, to be denomi- 
 nated " light money," shall be levied and col- 
 lected on all vessels not of the United States, 
 which may enter the ports of the United States; 
 to be levied and collected in the same manner as 
 the tonnage duties. § 423.5. See other sections 
 under R. S. ch. 3, title xlviii. 
 
 The constitution of the United States provides, 
 art. 1, s. 10, n. 3, that no state shall, without the 
 consent of congress, lay any duty on tonnage. 
 (12 Wall. 304; 94 U. S. 338.) But a municipal cor- 
 poration situated on a navigable river can, consist- 
 ently with the constitution of the United States, 
 charge and collect from the owner of licensed 
 steamboats, which moor at a wharf constructed 
 hy it, wharfage proportioned to their tonnage ; 
 95 U. S. 80 ; 45 Iowa, 196. Sse Commerce. 
 
 By act of congress, approved May 6, 1864, 
 it is provided that the registered tonnage of a 
 vessel shall be her entire internal_ cubic capa- 
 city, in tons of one hundred cubic feet each, 
 to be ascertained as follows : Measure the 
 length of the vessel in a straight line along 
 the upper side of the tonnage deck, from the 
 inside of the inner plank (average thickness) 
 ' at the sicle of the stem to the inside of the 
 
 plank on the stern timbers (average thickness), 
 deducting from this length what is due to the 
 rake of the bow in the thickness of the deck, 
 and what is due to the rake of the stern tim- 
 ber in the thickness of the deck, and also 
 what is due to the rake of the stern timber in 
 one-third of the round of the beam ; divide 
 the length so taken into the number of equal 
 parts required by the following table, accord- 
 ing to the class in such table to which the 
 vessel belongs. See K. S. §§ 4150 et seq. 
 
 Table of Classes. 
 
 Class I. — Vessels of which the tonnage-length, 
 according to the above measurement, is fifty 
 feet or under, into six equal parts. 
 
 Class II. — Vessels of which the tonnage- 
 length, according to the above measurement, is 
 above fifty feet and not exceeding one hundred 
 feet long, into eight equal parts. 
 
 Class III. — Vessels of which the tonnage- 
 length, according to the above measurement, is 
 above one hundred feet long and not exceeding 
 one hundred and fifty feet long, into ten equal 
 parts. 
 
 Class IV. — Vessels of which the tonnage- 
 length, according to the above measurement, is 
 above one hundred and fifty feet and not ex- 
 ceeding two hundred feet long, into twelve equal 
 parts. 
 
 Class V. — Vessels of which the tonnage- 
 length, according to the above measurement, is 
 above two hundred feet and not exceeding two 
 hundred and fifty feet long, into fourteen equal 
 parts. 
 
 Class VI. — Vessels of which the tonnage- 
 length, according to the above measurement. Is 
 above two hundred and fifty feet long, into six- 
 teen equal parts. 
 
 Then, the hold being sufficiently cleared to ad- 
 mit of the required depths and breadths being 
 properly taken, find the transverse area of such 
 vessel at each point of division of the length, as 
 follows. Measure the depth at each point of 
 division from a point at a distance of one-third 
 of the round of the beam below such deck, or, 
 in case of a break, below a line stretched in 
 continuation thereof, to the upper side of the 
 fioor-timber, at the inside of the limber-strake, 
 after deducting the average thickness of the ceil- 
 ing which is between the bilge-planks and lim- 
 ber-strake ; then, if the depth at the midship 
 division of the length do not exceed sixteen feet, 
 divide each depth Into four equal parts ; then 
 measure the inside horizontal breadth at each of 
 the three points of division, and also at the 
 upper and lower points of the depth, extending 
 each measurement to the average thickness of 
 that part of the ceiling which is between the 
 points of measurement ; number these breadths 
 from above (numbering the upper breadth one, 
 and so on down to the lowest breadth) ; multi- 
 ply the second and fourth by four, and the third 
 by two ; add these products together, and to the 
 sum add the first breadth and the last or fifth ; 
 multiply the quantity thus obtained by one-third 
 the interval between the breadths, and the pro- 
 duct shall be deemed the transverse area ; but 
 if the midship depth exceed sixteen feet, divide 
 each depth into six equal parts, instead of four, 
 and measure as before directed the horizontal 
 breadths at the five points of division and also 
 at the upper and lower points of the depth ; 
 number them from above, as before, multiply 
 the second, fourth, and sixth by four, and the 
 third and fifth by two ; add these products to- 
 gether, and to the sum add the first breadth and 
 
TONNAGE 
 
 736 
 
 TORT 
 
 the last or seventh ; multiply the quantity thus 
 obtained by one-third of the common interval 
 between the breadths, and the product shall be 
 deemed the transverse area. 
 
 Having thus ascertained the transverse area 
 at each point of division of the length of the 
 vessel, as required above, proceed to ascertain 
 the register-tonnage of the vessel, In the follow- 
 ing manner : — 
 
 Number the areas successively one, two, three, 
 etc., number one being at the extreme limit of 
 the length at the bow, and the last number at 
 the extreme limit of the length at the stern ; 
 then, whether the length be divided according to 
 table into six or sixteen parts, as in classes one 
 and six, or into any intermediate number, as in 
 classes two, three," four, and five, multiply the 
 second and every even-numbered area by four, 
 and the third and every odd-numbered area (ex- 
 cept the first and last) by two ; add the pro- 
 ducts together, and to the sum add the first and 
 last, if they yield anything ; multiply the quan- 
 tities thus obtained by one-third of the common 
 interval between the areas, and the product will 
 be the cubical contents of the space under the 
 tonnage-deck ; divide this product by one hun- 
 dred, and the quotient, being the tonnage under 
 the tonnage-deck, shall be deemed the register- 
 tonnage of the vessel, subject to the additions 
 hereinafter mentioned. 
 
 If there be a break, a poop, or any other per- 
 manent closed-in space on the upper decks or the 
 spar-deck available for cargo or stores or for 
 the berthing or accommodation of passengers or 
 crew, the tonnage of such space shall be ascer- 
 tained as follows : — 
 
 Measure the internal mean length of such space 
 In feet, and divide into an even number of equal 
 parts of which the distance asunder shall be 
 most nearly equal to those into which the length 
 of the tonnage-deck has been divided ; measure 
 at the middle of its height the inside breadths, — 
 namely, one at each end and at each of the 
 points of division, — numbering them successively 
 one, two, three, etc. ; then to the sum of the end 
 breadths add four times the sum of the even- 
 numbered breadths and twice the sum of the 
 odd-numbered breadths, except the first and 
 last, and multiply the whole sum by one-third 
 of the common interval between the breadths ; 
 the product will give the mean horizontal area 
 of such space ; then measure the mean height 
 between the planks of the decks, and multiply 
 it by the mean horizontal area ; divide the pro- 
 duct by one hundred, and the quotient shall be 
 deemed to be the tonnage of such space, and shall 
 be added to the tonnage under the tonnage-deck 
 ascertained as aforesaid. 
 
 If the vessel has a third deck, or spar-deck, 
 the tonnage of the space between it and the ton- 
 nage-deck shall be ascertained as follows :-r- 
 
 Measure in feet the inside length of the space, 
 at the middle of its height, from the plank at the 
 side of the stem to the plank on the timbers at 
 the stem, and divide the length into the same 
 number of equal parts Into which the length of 
 the tonnage-deck is divided ^ measure (also at 
 the middle of its height) the inside breadth of 
 the space at each of the points of division, also 
 the breadth of the stem and the breadth at the 
 stern ; number them successively one, two, three, 
 and so forth, commencing at the stem ; multiply 
 the second and all other even-numbered breadths 
 by four, and the third and all other odd-num- 
 bered breadths (except the first and last) by 
 two ; to the sum of these products add the first 
 and last breadths ; multiply the whole sum by 
 one-third of the common interval between the 
 breadths, and the result will give, in superficial 
 
 feet, the mean horizontal area of such space' 
 measure the mean height between the plank of 
 the two decks, and multiply it by the mean hori- 
 zontal area, and the product will be the cubical 
 contents of the space ; divide this product by 
 one hundred, and the quotient shall be deemed 
 to be the tonnage of such space, and shall be 
 added to the other tonnage of the vessel ascer- 
 tained as aforesaid. And if the vessel has more 
 than three decks, the tonnage of each space 
 between decks above the tonnage-deck shall be 
 severally ascertained in the manner above de- 
 scribed, and shall be added to the tonnage of the 
 vessel ascertained as aforesaid. 
 
 In ascertaining the tonnage of open vessels, 
 the upper edge of the upper strake is to form 
 the boundary-line of measurement, and the 
 depth shall be taken from an athwartship line 
 extending from the upper edge of said strake at 
 each division of the length. 
 
 TONNAGIi TAX. See Tonnage. 
 
 TONTINE. In French Law. The 
 
 name of a partnership composed of creditors 
 or recipients of perpetual or life rents or 
 annuities, formed on the condition that the 
 rents of those who may die shall accrue to 
 the survivors, either in whole or in part. 
 
 This kind of partnership took its name from 
 Tonti, an Italian of the 17th century, who flret 
 conceived the idea and put it in practice.) Merlin, 
 Rupert,; Dalloz, Diet,; 5 Watts, 351. 
 
 TOOK AND CARRIED AWAY. In 
 Criminal Pleading. Technical words neces- 
 sary in an indictment for simple larceny. 
 Bacon, Abr. Indictment (G 1); Comyns, Dip. 
 Indictment (G 6); Cro. Car. 37; 1 Chitty, 
 Cr. Law, 244. See Cepit et Asportavjt. 
 
 TOOLS. Those implements which are 
 commonly used by the hand of one man in 
 some manual labor necessary for his subsis- 
 tence. 
 
 The apparatus of a printing-office, such as 
 types, presses, etc., are not, therefore, in- 
 eluded under the term tools; 10 Pick. 423; 
 3 Vt. 133. And see 2 Pick. 80 ; 5 Mass. 313. 
 
 By the forty-sixth section of the act of 
 March 2, 1789, 1 Story, Laws, 612, the tools 
 or implements of a mechanical trade of per- 
 sons who arrive in the United States are free 
 and exempted from duty. 
 
 TORT (Fr. tort, from Lat. torquere, to 
 twist, tortus, twisted, wrested aside). A pri- 
 vate or civil wrong or injury. A wrong inde- 
 pendent of contract. 1 Hill. Torts, 1. The 
 breach of a legal duty. Bigelow, Torts, 3. 
 
 The law recognizes certain rights as belong- 
 ing to every individual, such as the right to 
 personal security, to libecty, to property, to 
 reputation, to the services of a dauijhter or 
 servant, to the companionship of a wife, etc. 
 Any violation of one of these rights is a tort. 
 In like manner the law recognizes certain 
 duties as attached to every individual, as the 
 duty of not deceiving by false representa- 
 tions, of not prosecuting another maliciously, 
 of not using your own property so as to m- 
 jure another, etc. The breach of any of these 
 duties coupled with consequent damages to 
 any one is also a toi-t. Underbill,. Torts, 4. 
 
 The word torts is used to describe that 
 
TORT 
 
 737 
 
 TORT 
 
 branch of the law which treats of the re- 
 dress of injuries which are neither crimes nor 
 arise from the breach of contracts. All acts 
 or omissions of which the law takes cogniz- 
 ance may in general be classed under the 
 three heads of contracts, torts, and crimes. 
 Contracts include agreements and the injuries 
 resulting from their breach. 'J''orts include 
 injuries to individuals, and crimes injuries to 
 the public or state. 1 Hill. Torts, 1. 
 
 This division of the redress of injuries by 
 civil suit into actions of tort and actions of 
 contract is not thoroughly accurate. For of- 
 ten the party injured has his election whether 
 he will proceed by tort or by contract, as in 
 the case of a fraudulent sale, or the fraudulent 
 recommendation of a third person ; 1 Hill. 
 Torts, 28 ; 10 C. B. 83 ; 24 Conn. 392. But 
 for general usage this division has been 
 found sufficient, and is universally adopted ; 
 Cooley, Torts, 2. 
 
 As distinmiished from contracts, torts are 
 characterized by the following qualities : (1) 
 parties jointly committing torts are in many 
 cases severally liable without right to contri- 
 bution from each other ; (2) the death of 
 either party to a tort destroys the right of ac- 
 tion ; (3) persons under personal disabilities 
 to contract are liable for their torts ; 1 Hill. 
 Torts, 2 ; Cooley, Torts, 147. 
 
 As the same act may sometimes constitute 
 the breach of a contract as well as a tort, so 
 the same act may often constitute a tort and 
 also a crime. For a tort may amount to, or 
 may be likely to lead to, a breach of the 
 peace, and thus become a matter of public 
 concern. The torts which are usually at the 
 same time crimes are assault, libel, and nui- 
 sance. In such cases it is the general rule of 
 law that a public prosetution and a private 
 action for damages can both be maintained 
 either at the same or at different times ; 1 B. 
 & P. 191; 3 Bla. Com. 122; 1 Hill. Torts, 
 57. In French law the two suits are com- 
 bined, so that the criminal is punished and 
 damages awarded by one proceeding ; 8 Alb. 
 L. J. 509. 
 
 In England there is a doctrine that when a 
 tort amounts to a felony, the private right of 
 action is suspended until the public prosecu- 
 tion is completed. This, however, is not 
 generally recognized in the United States ; 1 
 Gray, 83 ; 6 N. H. 454; 1 Miles, 312; 4 
 Ohio, 376; 22 Wend. 285, note; 1 Hill. 
 Torts, 61 et seq. 
 
 The infringement of a right or the violation 
 of a duty are necessary ingredients of a tort. 
 If neither of these is present the act is not a 
 tort, although damage may have resulted. 
 Hence the maxim : Ex damno sine injuria 
 nan oritur actio. Thus if a building be 
 erected whereby a shop is hidden from view 
 of the public, this, though causing great loss 
 to the shopkeeper, is yet no tort ; for no man 
 has the right to an uninterrupted view of a 
 particular spot if the land of another inter- 
 vene. Therefore, though in this case there 
 was damage, yet there was no infringement 
 Vol. II.— 47 
 
 of a right or violation of a duty : in other 
 words, no wrongful act ; L. R. 2 Ch. App. 
 158 ; Underbill, Torts, 6. 
 
 A wrongful or malicious intent is an essen- 
 tial element in some torts. As, for example, 
 deceit, slander and libel, malicious prosecu- 
 tion, and conspiracy. In general, however, 
 it may be stated as a prominent distinction 
 between torts and crimes, that in the former 
 the party's intent is immaterial, while in 
 prosecutions for the latter a criminal purpose 
 must always be alleged and proved ; 1 Hill. 
 Torts, 90 ; Cooley, Torts, 688. Thus one 
 may be made liable in damages for what is 
 usually called a mere accident. So insane 
 persons and minors, under the age of discern- 
 ment, are in general liable for torts. But the 
 French law holds that every tort implies a 
 fault, and consequently that the insane and 
 minors under the age of discernment, being 
 incapable of an intent, are not liable ; 2 Hill. 
 Torts, 521 ; Cooley, Torts, 99, 103 ; 8 Alb. 
 L. J. 508; 32 L. J. C. P. 189; 1 Esp. 
 172. 
 
 The various acts which constitute torts may 
 be classed as injuries to person, property, or 
 reputation. But more particularly under the 
 following heads : deceit, slander and libel, 
 malicious prosecution, conspiracy, assault 
 and battery, false imprisonment, enticement 
 and seduction, trespass, conversion, infringe- 
 ment of patents, copyrights, and trade-marks', 
 damage by animals, violation of water rights 
 and rights of support, nuisance, uegligencoj 
 etc. etc. In general, it may be said that 
 whenever the law creates a right the violation 
 of such right will be a tort, and wherever the 
 law creates a duty, the breach of such duty 
 coupled with consequent damage will be a tort 
 also. This applies not only to the common 
 law, but also to such rights and duties as may 
 be created by statute ; Underbill, Torts, 20 ; 
 Cooley, Torts, 650 ; Addison, Torts, sees. 53- 
 77. Thus a statute enacting that every ship 
 shall carry medicines suitable to accidents and 
 diseases at sea creates a duty ; and any breach 
 of this duty whereby damage results to any 
 individual is a tort. That the statute in such 
 case provides a penalty for non-performance, 
 to be recovered by a common informer, does 
 not interfere with the private action. The 
 penalty concerns the public wrong, and has 
 nothing to do with the private injury or the 
 private right of action ; 3 E. & B. 402. 
 
 Torts may also arise in the performance of 
 the duties of a ministerial officer, when such 
 duties are due to individuals and not to the 
 state; Cooley, Torts, 376. See Opficbb ; 
 Judge ; Sheriff ; Attachment ; Exe- 
 cution; Bail; Abkebt. 
 
 As to torts committed against property or 
 in the relations of master and servant, hus- 
 band and wife, parent and child, bailor and 
 bailee, landlord and tenant, mortgagor' and 
 mortgagee, see these several titles. 
 
 As to remedies, the law has given particu- 
 lar forms of action for certain injuries, as tro- 
 ver for conversion, trespass for injuries to 
 
TORTFEASOR 
 
 738 
 
 TOTAL LOSS 
 
 property, etc. But by far the larger class of 
 torts is included under actions on the case, 
 which is the form of proceeding allowed when 
 the injury is consequential or indirect, or not 
 capable of being brought under any of the 
 ancient forms of action. The remedies not 
 included under actions on the case are usually 
 classed as trespass vi et armis. See Case. 
 
 In order to maintain an action of tort the 
 relation of cause and eflFect between the act 
 and the injury must be clearly shown. The 
 damage must not be remote or indirect. In 
 jure nonremota causa, sedproxima spectatur. 
 Cooley, Torts, 68; Broom, Max. 216; 3 
 Wils. 403. Thus, where it was attempted to 
 make a common carrier liable in tort for 
 goods destroyed by a flood, because if they 
 had not been delayed by the lameness of his 
 horse they would have been beyond the 
 locality of the flood, the court held that the 
 lameness of the horse was the remote and not 
 the proximate cause of the injury ; 20 Penn. 
 171. 
 
 A party injured cannot generally maintain 
 an action for the injury if caused in any degree 
 by his own contributory negligence. See 
 IfEGUGENCE ; 14 Am. L. Rev. 1. 
 
 TORTFEASOR. A wrong-doer; one 
 who commits or is guilty of a tort. 
 
 TORTURE. The rack, or question, or 
 other mode of examination by violence to the 
 person, to extort a confession from supposed 
 criminals, and a revelation of their asso- 
 ciates. 
 
 It is to be distinguished from punishment, 
 which usually succeeds a conviction for offences, 
 as it was inflicted in limine, and as part of the 
 introductory process leading to trial and judg- 
 ment. 
 
 It was wholly unknown to the common and 
 statute law of England, and was forbidden 
 by Magna Charta, ch. 29 ; Co. 2d Inst. 48 ; 
 4 Bla. Com. 326. 
 
 It prevailed in Scotland, where the civil 
 law which allowed it obtained; Dig. 48. 18. 
 It was, however, declared contrary to the 
 claim of right, and was expressly prohibited, 
 7 Anne, c. 21, § 5, a. d. 1708. Several in- 
 stances of its infliction may be found in Pit- 
 cairn's Criminal Trials of Scotland. 
 
 Sir John Kelynge, in the time of Hale, 
 says, persons standing mute were also com- 
 pelled to answer, by tying their thumbs to- 
 gether with a whip-cord, and that this was 
 said to be the "constant practice at New- 
 gate." Kely. 27. 
 
 Although torture was confessedly contrary 
 to the common law of England, it was, never- 
 theless, often employed as an instrument 
 of state to wring confessions from prominent 
 criminals, — especially in charges of treason. 
 It was usually inflicted by warrant from the 
 privy council. Jardine, Torture, 7, 15, 42 ; 
 1 Rush. Coll. 638. 
 
 In 1596 a warrant was issued to the attor- 
 ney-general (Sir Edward Coke), the solicitor- 
 general (Sir Thomas Fleming), Mr. Francis 
 
 Bacon, and the recorder of London, to exam- 
 ine four prisoners "upon such articles as they 
 should think meet, and for the better boult- 
 ing forth of the truth of their intended plots 
 and purposes, that they should be removed 
 to Bridewell and put to the manacles and tor- 
 ture." Mr. Jardine proves from the records 
 of the privy council that the practice was not 
 unfrequent during the time of Elizabeth, and 
 continued to the close of the reign of the first 
 two Stuarts. There is positive evidence that 
 Guy Fawkes was directed to be tortured in 
 regard to the Gunpowder Plot, in the warrant 
 in the king's handwriting authorizing the com- 
 missioners, of whom Coke was one, to exam- 
 ine him upon the rack, "using the gentler 
 tortures first, et sic per gradus ad ima tendi- 
 tur." 1 Jardine, Crim. Trials, Int. 17; 2 
 id. 106. 
 
 This absurd and cruel practice has never 
 obtained in the United States ; for no man is 
 bound to accuse himself. An attempt to tor- 
 ture a person to extort a confession of crime 
 is a criminal offence ; 2 Tyl. Vt. 380. See 
 Question ; Peine Forte et Dure ; 
 Mute. 
 
 TORV. Originally a nickname for the 
 wild Irish in Ulster. The words whig and 
 tory were first applied to English puitical 
 factions in 1679. 
 
 TOTAL LOSS. In Insurance. A total 
 loss in marine insurance is either the absolute 
 destruction of the insured subject by the direct 
 action of the perils insured against, or a con- 
 structive — sometimes called technical — total 
 loss, in which the assured is deprived of the 
 possession of the subject, still subsisting in spe- 
 cie, or where there may be remnants of it or 
 claims subsisting on -account of it, and the as- 
 sured, by the express terms or legal construc- 
 tion of the policy, has the right to recover its 
 value from the underwriters, so far as, and at 
 the rate at which, it is insured, on abandon- 
 ment and assignment of the still subsisting 
 subject or remnants or claims arising out of it. 
 2 Phill. Ins. ch. xvii. ; 2 Johns. 286. 
 
 A constructive total loss majr be by cap- 
 ture ; seizure by unlawful violence ; as, 
 piracy ; 1 Phill. Ins. § 1106 ; 2 E. L. & E. 
 85 ; or damage to ship or goods over half of 
 the value at the time and place of loss ; 1 
 Curt. C. C. 148 ; 9 Cush. 415 ; 5 Denio, 
 342; 19 Ala. n. s. 108; 6 Johns. 219; or 
 loss of the voyage ; 4 Me. 431 ; 24 Miss. 
 461 ; 19 N. Y. 272 ; 1 Mart. La. 221 ; though 
 the ship or goods may survive in specie, but 
 so as not to be fit for use in the same character 
 for the same service or purpose ; 2 Games, 
 Cas. 324 ; Valin, torn. 2, tit. Ass. a. 46 ; or 
 by jettison ; 1 Caines, 196 ; or by necessity 
 to sell on account of the action and effect of 
 the peril insured against; 5 Gray, 154; 1 
 Cra. 202 ; or by loss of insured freight conse- 
 quent on the loss of caigo or ship ; 18 Johns. 
 208. 
 
 There may be a claim for a total loss m 
 addition to a partial loss; 17 How. 595. A 
 
TOTIDEM VERBIS 
 
 739 
 
 TOWN 
 
 total loss of the ship is not necessarily such of 
 cargo; 8 Binn. 287; nor is submersion ne- 
 cessarily a total loss ; 7 East, 38 ; nor is tem- 
 porary delay of the voyage ; 5 B. & Aid. 
 597. 
 
 A constructive total loss, and an abandon- 
 ment thereupon of the ship, is a constructive 
 total loss of freight ; and a constructive total 
 loss and abandonment of cargo has a like 
 effect as to commissions or profits thereon ; 
 and the validity of the abandonment will de- 
 pend upon the actual facts at the time of the 
 abandonment, as the same may subsequently 
 prove to have been ; 2 Phillips, Ins. § 1630 ; 
 3 Johns. Cas. 93. See 2 Pars. Mar. Ins. §§ 
 68-106 ; Lowndes, Mar. Ins. §§ 210-241 ; 
 Abandonment. 
 
 TOTIDEM VERBIS (Lat.). In so many 
 words. 
 
 TOTIES QUOTIES (Lat.). As often 
 as the thing shall happen. 
 
 TOTTED. A good debt to the crown, i. e. 
 a debt paid to the sheriff, to be by him paid 
 over to the king. Cowel ; Moz. & W. See 
 
 FOBBIGN ApPOSER. 
 
 TOUCH AND STAY. Words fre- 
 quently introduced in policies of insurance, 
 giving the party insured the right to stop and 
 stay at certain designated points in the course 
 of the voyage. A vessel which has the power 
 to touch and stay at a place in the course of 
 the voyage must confine herself strictly to the 
 terms of the liberty so given ; for any at- 
 tempt to trade at such a port during such a 
 stay, as, by shipping or landing goods, will 
 amount to a species of deviation which will 
 discharge the underwriters, unless the ship 
 have also liberty to trade as well as to touch 
 and stay at such a place ; 1 Marsh. Ins. 275 : 
 1 Esp. 610 ; 5 id. 96. 
 
 And even where the printed form of policy con- 
 tains the clause : And it shall be lawful for the 
 laid ship, etc., in this voyage to proceed and sail to 
 and touch and stay at any ports or places what- 
 soever without prejudice to this insurance, the 
 right of deviation is held to be limited by the 
 words in this voyage, to places in the usual course 
 of the voyage between the termini named in the 
 policy; 1 Dougl. 284; Park. Ins. 626; 1 Exo^. 
 257 ; and, as to purpose, to objects within the 
 main scope of the voyage insured ; 4 B. & Aid. 
 72 ; 5 B. & Cr. 810 ; Lowndes, Mar. Ins. § 85 
 et seq. 
 
 TOUTOTTRS ET UNCORE FRIST 
 
 (L. Fr.). Always and still ready. This is 
 the name of a plea of tender : as, where a 
 man Is indebted to another, and he tenders 
 the amount due, and afterwards the creditor 
 brings a suit, the defendant may plead the 
 tender, and add that he has always been and 
 is still ready to pay what he owes, which may 
 be done by the formula toujours et uncore 
 prist. He must then pay the money into 
 court ; and if the issue be found for him the 
 defendant will be exonerated from costs, and 
 the plaintiff made liable for them ; 3 Bou- 
 vier, Inst. n. 2923. See Tout Temps Pkist ; 
 Tender. 
 
 TOUR D'ECHELLB'. In French Law. 
 
 A right which the owner of an estate has of 
 placing ladders on his neighbor's property to 
 facilitate the reparation of a party- wall or of 
 buildings which are supported by that wall. 
 It is a species of servitude. Lois des B&t. 
 part 1, c. 3, sect. 2, art. 9, § 1. 
 
 The space of ground left unoccupied around 
 a building for the purpose of enabling the 
 owner to repair it with convenience : this is 
 not a servitude, but an actual corporeal pro- 
 perty. 
 
 TOURN. See Sheriff's Toubn. 
 
 TOUT TEMPS FRIST {L. Fr. always 
 ready). A plea by which the defendant sig- 
 nifies that he has always been ready to per- 
 form what is required of him. The object 
 of the plea is to save costs : as, for example, 
 where there has been a tender and refusal ; 
 3 Bla. Com. 303 ; Comyns, Dig. Pleader, 2 
 Y, 5. So, in a writ of dower, where the plea 
 is detinue of charters, the demandant might 
 reply, always ready; Rast. Entr. 229 b; 
 Stearns, Real Act. 310. See Uncobe Prist. 
 
 TOTWAGE. The act of towing or draw- 
 ing ships and vessels, usually by means of a 
 small steamer called a tug. 
 
 Where towage is rendered in the rescue or re- 
 lief of a vessel from imminent peril, it becomes 
 salvage service, entitled to be compensated as 
 such ; 6 N. T. Leg. Obs. 323. A tug, sometimes 
 called towing- or tow-boat, while not held to 
 the responsibility of a common carrier, is bound 
 to exercise reasonable care and skill in every- 
 thing pertaining to its employment ; 9 Fed. Rep. 
 614. See Tow-Boats ; Tnes. 
 
 That which is given for towing ships in 
 rivers. Guidon de la Mer, c. 16 ; Pothier, 
 Des Avaries, n. 147 ; 2 Chitty, Com. Law, 16. 
 
 TOW-BOATS. According to the weight 
 of authority, the owners of steamboats en- 
 gaged in the business of towing are not com- 
 mon carriers ; Lawson, Carriers, 3. So held 
 in 2 N. Y. 204; 18 Penn. 40; 9 C. L. J. 
 153 ; s. C. 14 Bush, 698, and 29 Am. Rep. 
 455 ; see Towage ; contra, 5 Jones, N. C. 
 174 ; 11 La. 46. See 6 Cal. 462; 28 N. J. 
 L. 180. 
 
 TOWN. A term of somewhat varying 
 signification, but denoting a division of a 
 country next smaller in extent than a county. 
 
 In Pennsylvania and some other of the 
 Middle states, it denotes a village or city. In 
 the New England states, it is to be considered 
 for many purposes as the unit of civil organ- 
 ization, — the counties being composed of a 
 number of towns. Towns are regarded as 
 corporations or juosi-corporations ; 13 Mass. 
 193. In New York and Wisconsin, towns 
 are subdivisions of counties ; and the same is 
 true of the townships of most of the Western 
 states. In Ohio, Michigan, Illinois, and Iowa, 
 they are called towhships. In England, the 
 term town or vill comprehends under it the 
 several species of cities, boroughs, and com- 
 mon towns. 1 Bla. Com. 114. 
 
TOWN CAUSE 
 
 740 
 
 TRADE-MARK 
 
 TOWN CAUSE. In XingUsh Practice. 
 A cause tried at the sittings for London and 
 Middlesex. 3 Steph. Com. 517. 
 
 TOWN-PLAT. The acknowledgment 
 and recording of a town-plat vests the legal 
 title to the ground embraced in the streets arid 
 alleys in the corporation of the town : there- 
 fore it is held that the proprietor who has 
 thus dedicated the streets and alleys to the 
 public cannot maintain trespass for an injury 
 to the soil or freehold. The corporation alone 
 can seek redress for such injury ; 11 111. 554 ; 
 13 id. 54, 308. This is not so, however, with 
 a highway : the original owner of the fee 
 must bring his action for an injury to the soil ; 
 13 111. 64. See Highway. If the streets or 
 alleys of a town are dedicated by a differfent 
 mode from that pointed out by the statute, the 
 fee remains in the proprietor, burdened with 
 the public easement; 13 111. 312. 
 
 TOWNSHIP. The public lands of the 
 United States are surveyed first into tracts 
 called townships, being in extent six miles 
 square. The subdivisions of a township are 
 called sections, each a mile square and con- 
 taining six hundred and forty acres ; these 
 are subdivided into quarter-sections, and from 
 that into lots of forty acres each. This plan 
 of subdividing the public lands was adopted 
 by act of congress of May 18, 1796. See 
 Brightly, Dig. U. S. Laws, 493. 
 
 TRADE. Any sort of dealings by way of 
 sale or exchange; commerce, traffic. 101 
 U. S. 231. The dealings in a particular 
 business : as, the Indian trade ; the business 
 of a particular mechanic : hence boys are 
 said to be put apprentices to learn a trade : 
 as, the trade of a carpenter, shoemaker, and 
 the like. Bacon, Abr. Master and Servant 
 (D 1). Trade differs from art. 
 
 It is the policy of the law to encourage 
 trade ; and therefore all contracts which re- 
 strain the exercise of a man's talents in trade 
 are detrimental to the commonwealth and 
 therefore void ; though he may bind himself 
 not to exercise a trade in a particular place ; 
 for in this last case, as he may pursue it in an- 
 other place, the commonwealth has the bene- 
 fit of it; 8 Mass. 223 ; 9 id. 522. See Ware, 
 Dist. Ct. 257, 260; Comyns, Dig. Trade; 
 Viner, Abr. Trade; Restraint. 
 
 TRADE-MARK. A symbol, emblem, or 
 mark, which a tradesman puts upon or at- 
 taches in some way to the goods he manufac- 
 tures or has caused to be manufactured, so 
 that they may be identified and known in the 
 market. Brown, Trade-Marks, 53-93. The 
 wrapper in which goods are put up may have 
 the trade-mark stamped on it, but the design 
 of the wrapper itself (a peculiar box, tin- 
 pail, or bright-colored paper) cannot be con- 
 verted into a trade-mark ; 14 Blatch. 128. 
 
 It may be in any form of letters, words, vig- 
 nettes, or ornamental design. Newly-coined 
 words may form a trade-mark; Brown, Trade- 
 Marks, 151. But a mere geographical name 
 cannot be so used. The word "Lackawanna," 
 
 which is the name of a region of country, can- 
 not by combination with the word "coal," make 
 a trade-mark, because every one who mines 
 eo^\ in Lackawanna has a right to say that his 
 product is Lackawanna coal. But any fraudu- 
 lent use of a geographical name will be re- 
 strained in equity. In the case of the Akron Ce- 
 ment Co., the plaintiffs manufactured cement at 
 Akron, in New York, and sold it under the name of 
 "Akron Cement," the defendants made the same 
 sort of cement at Syracuse and labelled it " Onon- 
 daga Akron Cement," etc. The court held that 
 though all the world had a right to manufac- 
 ture cement at Akron and call it Akron Cement 
 yet the action of the defendants in calling their 
 cement made at Syracuse, Akron Cement, was a 
 fraud on the plaintiffs and on the public, and 
 should accordingly be restrained ; 13 Wall. 311 ; 
 49 Barb. 588 ; Brown, Trade-Marks, 123. 
 
 The ownership of trade-marks is generally 
 considered as a right of property ; Upton, 
 Trade-Marks, 10. It is on this ground that 
 equity often protects by injunction against 
 their infringement. In such cases proof of 
 fraud is not necessary, the mere fact of vio- 
 lating a right of property being a sufficient 
 reason for the exercise of equitable jurisdic- 
 tion ; 1 De G. J. & S. 185. At law the pro-' 
 per remedy is an action for deceit; and here 
 proof of fraud is necessary. But equity will 
 not interfere by injunction except in aid of a 
 legal right ; and If the fact of a plaintiff's 
 property in a trade-mark or of the defend, 
 ant's interference with it appears at all doubU 
 ful, the plaintiff will be left to first estabhsh 
 his case by an action at law ; 4 £. D. Sm. 
 387 ; Brown, Trade-Marks, 23. 
 
 If goods derive their chief value from the 
 pei;sonal skill of the adopter of the trade- 
 mark, he will not be allowed to assign it ; 1 
 H. &M. 271. 
 
 A man can always put his own name on his 
 own goods, notwithstanding that another of the 
 same name already manufactures and sells the 
 same goods. In other words, a man cannot 
 make a trade-mark out of his name alone. But 
 no one can use in connection Vith his own name 
 devices or symbols which have become the pro- 
 perty of another person of the same name. 
 Thus an Injunction to restrain the use of the 
 words " Burgess Essence of Anchovies," was re- 
 fused, although there was another person named 
 Burgess who made essence of anchovies. But 
 an injunction was granted to restrain the use of 
 the words "Burgess Fish Sauce Warehouse late 
 of 107 Strand," which the court held had become 
 the peculiar property of the first Burgess ; 17 E. 
 L. & E. 257 ; 12 Am. Bep. 410. A man will be re- 
 strained from using his own name fraudulently ; 
 22 L. J. Ch. 675 ; 3 B. & C. 541. 
 
 The trade-name of a firm, a corporate name, 
 and the name of a publication, though not 
 strictly trade-marks, are nevertheless a species 
 of property of the same nature as trade- 
 marks, and will be protected in like manner ; 
 21 Am. L. Reg. 644 ; 33 Am. Bep. 336 ; 9 
 id. 331. See Name. 
 
 So a tradesman may adopt a fictitious name, 
 and sell his goods under it as a trade-mark, 
 and the property right he thus acquires in 
 the fanciful name will be protected; 6 
 Thomp. &C. 133. 
 
TllADE-MARK 
 
 741 
 
 TRADER 
 
 No property can be acquired in words, 
 marks, or devices whicli denote the mere 
 nature, kind, and quality of articles, and do 
 not indicate origin or ownership; 17 Barb. 
 608; 2 Sandf. 599; 101 U. S. 61. 
 
 Thus "snow-flake" as applied to bread and 
 crackers and " rye and rock" as applied to a 
 liquor were held to be descriptions. But " in- 
 surance oil" as applied to an illuminating, non- 
 explosive oil was held to be a valid trade-mark ; 
 46 N. T. 542 ; 89 Am. Rep. 386, 390. 
 
 In the examination of conflicting trade- 
 marks the courts will judge as would the 
 public. Mere variations of arrangement, 
 with secondary additions and omissions, will 
 justify an injunction; and while there may 
 be striking differences between two trade- 
 marks, yet if in the last made there is an in- 
 genuity which would deceive, the court will 
 interfere; 18 Beav. 164; 10 Beav. 297. 
 
 A party may affect his right to a trade- 
 mark by non-use, by a forbearance in suing 
 protectively, and by adopting a new one. 
 But the question of abandonment is always a 
 question of intention ; Brown, Trade-Marks 
 536. Equity, however, will not in general 
 refuse an injunction on account of delay in 
 seeking relief where the proof of infringe- 
 ment is clear, even though the delay may be 
 such as to preclude the party from any right 
 to an account for past profits ; 31 Law Times, 
 285 ; 45 L. Jour. pt. 1, 505. 
 
 As it is often difficult to prove exactly 
 when a certain trade-mark was adopted. Con- 
 gress provided for the registration of trade- 
 marks in the patent office, and for the punish- 
 ment of the fraudulent use, sale, and coun- 
 terfeiting of them ; 16 Stat, at L. 198 ; 19 id. 
 141. This legislation has been declared un- 
 constitutional, because a trade-mark is not a 
 writing or invention, and because the acts in 
 question applied to all commerce, and were 
 not limited to trade-marks used only in com- 
 merce between the states or with foreign na- 
 tions, or with the Indian tribes ; 100 U. S. 
 82; 13 Am. h. Rev. 390. But although no 
 indictments can be maintained under these 
 acts, yet registration under them will be good 
 evidence in state courts of the adoption of a 
 trade-mark. The act of March 3, 1881, is 
 supposed to avoid the constitutional difficulty 
 by providing for the registration of trade- 
 marks only when used in foreign commerce, 
 or in commerce with the Indian tribes ; 21 
 Am. L. Reg. 648. 
 
 Trade-mark treaties The United States 
 
 has entered into numerous trade-mark trea- 
 ties. Those with Germany and Russia de- 
 clare that the citizens of each country shall 
 enjoy in the other the same protection as 
 native citizens. The treaties with Austria, 
 Belgium, and France forbid the people of 
 either country from counterfeiting the trade- 
 marks of the other, and give to the injured 
 merchant the same action for damages that 
 he would have if he were a citizen of the 
 country where the imitation is committed. 
 The treaty with Great Britain provides that 
 
 the citizens of each party shall have in the 
 possessions of the other the same rights as 
 native citizens, "or as are now granted or 
 may hereafter be granted to the citizens of 
 the most favored nation." 
 
 The treaties with Germany and Russia re- 
 quire no legislation on the part cf the United 
 States to carry them into effect. But the 
 treaties with Austria, Belgium, France, and 
 England can hardly be carried out unless 
 Congress has power to legislate on the sub- 
 ject of trade-marks; Brown, Trade-Marks, 
 557. 
 
 See, generally, Brown, Upton, Codding- 
 ton, and Sebastian, on Trade-Marks. 
 
 THADER. One who makes it his busi- 
 ness to buy merchandise, or goods and chat- 
 tels, and to sell the same for the purpose of 
 making a profit. The quantum of dealing is 
 immaterial, when an intention to deal gene- 
 rally exists ; 3 Stark. 56 ; 2 C. & P. 135 ; 1 
 Term, 572. The principal question is 
 whether the person has the intention of get- 
 ting a living by his trading ; if this is proved, 
 the extent or duration of the trading is not 
 material ; 3 Camp. 233. 
 
 Questions as to who is a trader most fre- 
 quently arise under the bankrupt laws ; and 
 the most difficult among them are those cases 
 where the party follows a business which is 
 not that of buying and selling principally, but 
 in which he is occasionally engaged in pur- 
 chases and sales. 
 
 A farmer who, in addition to his usual 
 business, occasionally buys a horse not calcu- 
 lated for his usual occupation, and sells him 
 again to make a profit, and who in the course 
 of two years had so bought and sold five or 
 six horses, two of which had been sold, after 
 he had bought them, for the sake of a guinea 
 profit, was held to be a trader ; 1 Term, 637, 
 n.; 1 Price, 20. Another farmer, who 
 bought a large quantity of potatoes, not to 
 be used on his farm, but merely to sell again 
 for a profit, was also declared to be a trader ; 
 1 Stra. 513. See 5 B. & P. 78 ; 11 East, 
 274. 
 
 A butcher who kills only such cattle as he 
 has reared himself, is not a trader, but if he 
 buy them and kill and sell them with a view 
 to profit, he is a trader ; 4 Burr. 21, 47. 
 
 A brickmaker who follows the business for 
 the purpose of enjoying the profits of his real 
 estate merely is not a trader ; but when he 
 buys the earth by the load or otherwise, and 
 manufactures it into bricks and sells them 
 with a view to profit, he is a trader ; 7 East, 
 442 ; 3 C. & P. 500 ; Mood. & M. 263 ; 2 
 Rose, 422; 2 Gl. & J. 183 ; 1 Bro. C. C. 
 173. 
 
 One who is engaged in the manufacture and 
 sale of lumber is a trader ; 1 B. K. 281 ; so 
 is one engaged in buying and selling goods 
 for the purpose of gain, though but occa- 
 siOtaally ; 2 id. 15; but the keeper of a livery 
 stable is not ; 3 N. Y. Leg. Obs 282 ; nor is 
 one who buys and sells shares ; 2 Ch. App. 
 466. 
 
TRADES UNIONS 
 
 742 
 
 TRAITOROUSLY 
 
 TRADES UNIONS. A combination of 
 ■workmSn in the same or like trades, asso- 
 ciated to maintain, and, if possible, enlarge 
 their rights and privileges of whatever kind. 
 The English Trades Union Act of 34 & 35 
 Vict. e. 31, provides that the purposes of any 
 trades union shall not by reason merely that 
 they are in restraint of trade be deemed un- 
 lawful so as to render any member of such 
 trade union liable to criminal prosecution for 
 conspiracy or otherwise, and shall not by rea- 
 son merely, as aforesaid, be unlawful so as to 
 render void or voidable any agreement or 
 trust. Provisions are also made for the registra- 
 tion and for registered offices, of trades unions ; 
 Whart. Diet. See Conspiracy ; Strike. 
 
 TEADITIO BREVIS MANUS (Lat.). 
 In CivU La-w. The delivery of a thing by 
 the mere consent of the parties ; as, when 
 ■ Peter holds the property of Paul as bailee, 
 and afterwards he buys it, it is not necessary 
 that Paul should deliver the property to Peter 
 and he should re-deliver it to Paul ; the mere 
 consent of the parties transfers the title to 
 Paul. 1 Duverg. n. 252; 21 Me. 231; 
 Pothier, Pand. lib. 50, cdlxxiv.; 1 Bouvier, 
 Inst. n. 944. 
 
 TRADITION (Lat. trans, over, do, dare, 
 to give). In Civil Law. The act by which 
 a thing is delivered by one- or more persons 
 to one or more others. 
 
 The delivery of possession by the proprie- 
 tor with an intention to transfer the property 
 to the receiver. Two things are, therefore, 
 requisite in order to transmit property in this 
 way : the intention or consent of the former 
 owner to transfer it, and the actual delivery 
 in pursuance of that intention. 
 
 Tradition is either real or symbolical. Real 
 tradition takes place where the ipsa corpora 
 of movables are put into the hands of the re- 
 ceiver. Symbolical tradition is used where 
 the thing is incapable of real delivery, as, in 
 immovable subjects, such as lands and houses, 
 or such as consist injure (things incorporeal), 
 as, things of fishing, and the like. The pro- 
 perty of certain movables, though they are 
 capable of real delivery, may be transferred 
 by symbol. Thus, if the subject be under 
 lock and key, the delivery of the key is con- 
 sidered as a legal tradition of all that is con- 
 tained in the repository. Cujas, Observa- 
 tions, liv. 11, ch. 10; Inst. 2. 1. 40; Dig. 
 41. 1. 9; Erskine,Inst. 2. 1. 10. 11 ; La. Civ. 
 Code, art. 2452 et seq. See Delivkky ; 
 Symbolical Delivery. 
 
 TRAFFIC. Commerce ; trade ; sale or 
 exchange of merchandise, bills, money, and 
 the like. 
 
 TRAFFIC RATES. Unjust discrimina- 
 tions by a common carrier exist where two or 
 more persons desire identical or very similar 
 transportation services to be performed for 
 each of them by such carrier, and he charges 
 one or more of such persons a higher price, or 
 affords to them inferior facilities of transpor- 
 tation, than he charges or gives to the other 
 
 of such persons ; 16 Am. L. Rev. 818. The 
 question is not merely whether the service or 
 the price is absolutely unequal in the narrow- 
 est sense, but also whether the inequality is 
 unreasonable and injurious. A certain ine- 
 quality of terms, facilities, or accommodations 
 may be reasonable, and, therefore, not an 
 infringement of the common right ; 52 N. H. 
 430. 
 
 Variations in the quantity of transportar 
 tion service warrant corresponding vanations 
 in the prices chargeable for it; 16 Am. L. 
 Rev. 821 : as where the shipper furnishes his 
 own cars ; 1 Nev. & Mac. 63 ; or where by 
 reason of gradients or otherwise, the cost of 
 carriage is greater on one part of a line than 
 on the other ; 2 Nev. & Mac. 39, 105. 
 
 A discrimination resting exclusively upon 
 the amount of freight supplied by the respec- 
 tive shippers will not be sustained ; 12 Fed. 
 Rep. 311, per Baxter, Circ. J.; but it may 
 be if the amount is greafenough to enable 
 the company to perform the service at less 
 expense. 
 
 A carrier may contract to carry cattle at 
 lower rates, on condition of being liable only 
 for negligence ; 25 W. R. 63 ; and extra fare 
 may be charged to passengers who pay their 
 fare upon the cars ; 30 N. Y. 505 ; 46 Ind. 
 293 ; 53 Me. 279 ; provided the company has 
 afforded reasonable opportunity to passengers 
 to purchase tickets before entering the cars ; 
 38 Ind. 116 ; 43 111. 364; but the extra fare 
 must itself be reasonable in amount ; 43 111. 
 176 ; 34 N. H. 230. See Ticket. 
 
 A carrier cannot discriminate in favor of 
 another carrier, or any of the public ; 62 
 Penn. 218 ; nor between different localities; 
 67 111. 11 ; but see 47 Penn. 341 (per Strong, 
 J., as to a discrimination in favor of domes- 
 tic articles). 
 
 It has been said, obiter, that a company 
 might make discriminations between interme- 
 diate and terminal traffic on the ground of 
 competition at the terminal point, 1 Nev. & 
 Mac. 103; butit appears that no case has de- 
 cided that competition is per se a valid reason 
 for reducing rates, even to the public ; 16 Am. 
 L. Rev. 836 ; see 67 111. 11. 
 
 When an unjust discrimination in prices is 
 shown to exist, the common carrier guilty of 
 it will be enjoined by a court of chancery not 
 to continue it ; and one who has been unjustly 
 discriminated against may recover the exces- 
 sive freights he lias paid by an action at law ; 
 16 Am. Li. Rev. 839 (where this subject is 
 fully treated). See also 15 id. 186. 
 
 TRAITOR. One guilty of treason. See 
 Treason. 
 
 TRAITOROUSLY. In Pleading. A 
 technical word, which is essential in an in- 
 dictment for treason in order to charge the 
 crime, and which cannot be supplied by any 
 other word or any kind of circumlocution. 
 Having been well laid in the statement of the 
 treason itself, it is not necessary to state every 
 overt act to have been traitorously committed. 
 
TRAMP 
 
 743 
 
 TRANSLATION 
 
 See Bacon, Abr. Indictment (G 1) ; Comyns, 
 Dig. Indictment (G 6) ; 1 East, PI. Or. 115 ; 
 2 Hale, PL Cr. 172, 184; 4 Bla. Com. 307; 
 S Inst. 15 ; Cro. Car. 37 ; 4 Hargrave, St. 
 Tr. 701 ; 2 Ld. Raym. 870 ; 2 Chitty, Cr. 
 Law, 104, note (6). 
 
 TRAMP. One who roams about from 
 place to place, begging or living without labor 
 or visible means of support; a vagrant. 
 Many of the states have recently adopted 
 suitable legislation upon the subject, corre- 
 sponding to the English vagrant acts. A sin- 
 gle act of vagrancy is sufficient, according to 
 the laws of Massachusetts, 1880; New York, 
 1880, and North Carolina, 1879. Females, 
 minors, and blind persons are expressly ex- 
 cepted from the acts of some of the states, as 
 New York, Delaware, North Carolina, and 
 Nebraska. The object of these statutes is 
 accomplished by arresting offenders and set- 
 ting them to work on municipal improvements, 
 or hiring them out to private employers, for 
 a limited time, in Delaware for a month, for 
 which they receive food, lodging, and reason- 
 able wages. For entering a dwelling house, 
 kindling a fire in a public highway or on pri- 
 vate land without the owner's permission, for 
 carrying dangerous weapons, or doing or 
 threatening to do any injury to any one or to 
 his property, they shall be guilty of a misde- 
 meanor, punishable by imprisonment. See 
 1 N. Y. Laws, 1880, 296, eh. 176, § 1. See 
 Vagrant. ' 
 
 TRANSACTION (from Lat. trans and 
 ago, to carry on). In Civil Laiw. An 
 agreement between two or more persons, who, 
 for the purpose of preventing or putting an 
 end to a lawsuit, adjust their difference, by 
 mutual consent, in the manner which they 
 agree on. In Louisiana this contract must be 
 reduced to writing. La. Civ. Code, art 
 3038. 
 
 Transactions regulate only the differences 
 which appear to be clearly comprehended in 
 them by the intentions of the parties, whether 
 they be explained in a general or particular 
 manner, unless it be the necessary conse- 
 quence of what is expressed ; and they do not 
 extend to differences which the parties never 
 intended to include in them. La. Civ. Code, 
 art. 3040. 
 
 To transact, a man must have the capacity 
 to dispose of the things included in the trans- 
 action. 1 Domat. Lois Civiles, 1, 13, 1 ; 
 Dig. 2. 15. 1 ; Code, 2. 4. 41. In the com- 
 mon law this is called a compromise. See 
 Compromise. 
 
 TRANSCRIPT. A copy of an original 
 writing or deed. 
 
 TRANSFIiR. (Lat. trans, over, fero, to 
 bear or carrv). The act by which the owner 
 of a thing delivers it to another person, with 
 the intent of passing the rights which he has 
 in it to the latter. 
 
 As to the transfer of stocks, see Stock. 
 
 TRANSFERIiEi. He to whom a trans- 
 fer is made. 
 
 TRANSFERENCE. In Scotch Iiaw. 
 
 The name of an action by which a suit which 
 was pending at the time the parties died is 
 transferred from the deceased to his repre- 
 sentatives, in the condition in which it stood 
 formerly. If it be the pursuer who is dead, 
 the action is called a transference active; if 
 the defender, it is a transference passive. 
 Erskine, Inst. 4. 1. 32. 
 
 TRANSFEROR. One who makes a 
 transfer. 
 
 TRANSGRESSION (Lat. trans, over, 
 gressus, a stepping). The violation of a law. 
 
 TRANSHIPMENT. In Maritime Law. 
 
 The act of taking the cargo out of one ship 
 and loading it in another. 
 
 When this is done from necessity, it does 
 not affect the liability of an insurer on the 
 goods; 1 Marsh. Ins. 166; Abbott, Shipp. 
 240. But when the master tranships goods 
 without necessity, he is answerable for the 
 loss of them by capture by public enemies ; 
 1 Gall. 443. ^ 
 
 TRANSIRE. In English Law. A war- 
 rant for the custom-house to let goods pass ; 
 a permit. See, for a form of a transire, Har- 
 grave, Law Tr. 104. 
 
 TRANSITORY ACTION. An action 
 the cause of which might have arisen in one 
 place or county as well as another. 
 
 In general, all personal actions, whether 
 ex contractu ; 5 Taunt. 25 ; 6 East, 352 ; 2 
 Johns. Cas. 335 ; 2 Caines, 374; 3 S. & R. 
 500 ; 1 Chitty, PI. 243 ; or ex delicto ; 1 
 Chitty, PI. 243 ; are transitory. 
 
 Such an action may at common law be 
 brought in any county which the plaintiff 
 elects ; but, by statute, in many states of the 
 United States provision is made limiting the 
 right of the plaintiff in this respect to a 
 county in which some one or more of the 
 parties has his domicil. 
 
 TRANSITUS (Lat.). A transit. See 
 Stoppage in Transitu. 
 
 TRANSLATION. The reproduction in 
 one language of what has been written or 
 spoken in another. 
 
 In pi eadlng, when a libel or an agreement writ- 
 ten In a foreign language must be averred, it is 
 necessary that a translation of it should also be 
 given. 
 
 In evidence, when a witness is unable to speak 
 the English language so as to convey his ideas, 
 a translation of his testimony must be made. In 
 that case an interpreter should be sworn to 
 translate to him, on oath, the questions pro- 
 pounded to him, and to translate to the court 
 and jury. 
 
 See Interpreter. 
 
 The bestowing of a legacy which had been 
 given to one, on another: this is a species 
 of ademption; but it differs from itin this, 
 that there may be an ademption without a 
 translation, but there can be no translation 
 without an ademption. Bacon, Abr. Lega- 
 cies (C). 
 
TRANSMISSION 
 
 744 
 
 TREASON 
 
 The transfer of property ; but in this sense 
 it is seldom used. 2 Bla. Com. 294. 
 
 In Ecclesiastical Law. The removal 
 from one place to another ; as, the bishop 
 was translated from the diocese of A to that 
 of B. In the civil law, translation signifies 
 the transfer of property. Clef des Lois Rom. 
 
 See Copyright. 
 
 TRANSMISSION (Lat. trans, over, 
 mitto, to send). In Civil Law. The right 
 which heirs or legatees may have of passing 
 to their successors the inheritance or legacy 
 to which they were entitled, if they happen 
 to die without having exercised their rights. 
 Uomat, liv. 3, t. 1, s. 10 ; 4Toullier, n. 186 ; 
 Dig. 60. 17. 54; Code, 6. 51. 
 
 TRANSPORTATION (Lat. trans, over, 
 beyond, porto, to carry). In English Law. 
 A punishment inflicted by virtue of sundry 
 statutes : it was unknown to the common law. 
 2 H. Blackst. 223. Itis apart of the judgment 
 or sentence of the court that the party shall be 
 transported or sent into exile. 1 Chitty, Cr. 
 Law, -789 ; Princ. of Pen.JLiaw, c. 4, § 2. 
 
 TRAVAIL. The act of child-bearing. 
 
 A woman is said to be in her travail from 
 the time the pains of child-bearing com- 
 mence until her delivery ; 5 Pick. 63 ; 6 Me. 
 460. 
 
 In some states, to render the mother of a 
 bastard child a competent witness in the 
 prosecution of the alleged father, she must 
 have accused him of being the father during 
 the time of her travail; 1 Root, 107 (a 
 case of maintenance) ; 2 Mass. 443 ; 6 Me. 
 460; 3 N. H. 135. But when the state 
 prosecutes, -the mother is competent although 
 she did not accuse the father during her tra^ 
 vail; 1 Day, 278. 
 
 TRAVELLING. See Rogers, Wrongs 
 and Rights of a Traveller ; Sunday. 
 
 TRAVERSE (L. Fr. traverser, to turn 
 over, to deny). To deny ; to put off. 
 
 In Civil Pleading. To deny or contro- 
 vert any thing which is alleged in the previous 
 pleading. Lawes, PI. 116. A denial. 
 Willes, 224. A direct denial in formal 
 words: " Without this, that, etc." (absque 
 hoc). 1 Chitty, PI. 523, n. a. A traverse 
 may deny all the facts alleged ; 1 Chitty, PL 
 525 ; or any particular material fact ; 20 
 Johns. 406. 
 
 A common traverse is a direct denial, in 
 common language, of the adverse allegations, 
 ■without the absque hoc, and concluding to 
 the country. It it not preceded by an in- 
 ducement, and hence cannot be used where 
 an inducement is requisite ; 1 Saund. 103 6, 
 n. 1. 
 
 A general traverse is one preceded by a 
 general inducement and denying all that is 
 last before alleged on the opposite side, in 
 general terms, instead of pursuing the words 
 of the allegation which it denies ; Gould, 
 PI. vii. 5, 6. Of this sort of traverse the re- 
 plication de injuria sua propria absque tali 
 
 causa, in answer to a justification, is a fami> 
 liar example ; Bacon, Abr. Pleas (H !)• 
 Steph. PL 171 ; Gould, PI. c. 7, § 5 ; Archb! 
 Civ. PI. 194. 
 
 A special traverse is one which commences 
 with the words absque hoc, and pursues the 
 material portion of the words of the allega- 
 tion which it denies ; Lawes, PI. 116. It is 
 regularly preceded by an inducement consist- 
 ing of new matter ; Gould, PI. c. 7, §§ 6, 7 ; 
 Steph. PL 188. A special traverse does not 
 complete an issue, as does a common traverse; 
 20 Viner, Abr. 339; Yelv. 147, 148; 1 
 Saund. 22, n. 2. 
 
 A traverse upon a traverse is one growing 
 out of the same point or subject-matter as 
 is embraced in a preceding traverse on the 
 other side ; Gould, PL c. 7, § 42, n. It is a 
 general rule that a traverse well intended on 
 one side must be accepted on the other. And 
 hence it follows, as a general rule, that there 
 cannot be a traverse upon a traverse if the 
 first traverse is material. The meaning of 
 the rule is that when one party has tendered 
 a material traverse the other cannot leave it 
 and tender another of his own to the same 
 point upon the inducement of the first tra- 
 verse, but must join in that first tendered ; 
 otherwise the parties might alternately tender 
 traverses to each other in unlimited succes- 
 sion, without coming to an issue ; Gould, PI. 
 c. 7, § 42. The rule, however, does not apply 
 where the first traverse is immaterial, nor 
 where it is material if the plaintiif would 
 thereby be ousted of some right or liberty 
 which the law allows ; Poph. 101.; F. Moore, 
 350 ; Hob. 104 ; Cro. Eliz. 99, 418 ; Comyns, 
 Dig. Pleader (G 18); Bacon, Abr. Pleas 
 (H4). 
 
 In Criminal Practice. To put off or 
 delay the trial of an indictment till a succeed- 
 ing term. More properly, to deny or take 
 issue upon an indictment. 4 Bla. Com. 351. 
 
 TREASON. In Criminal Law. This 
 word imports a betraying, treachery, or breach 
 of allegiance ; 4 Bla. Com. 75. In England, 
 treason was divided into high and petit trea- 
 son. The latter, originally, was of several 
 forms, which, by 25 Edw. III. st. 5, c. 2, were 
 reduced to three : the killing, by a wife, of her 
 husband ; by a servant, of his master ; and 
 the killing of a prelate by an ecclesiastic ow- 
 ing obedience to' him. These kinds of trea- 
 son were abolished in 1828. In America they 
 were unknown ; here treason means high trea- 
 son. 
 
 The constitution of the United States, art. 
 3, s. 3, defines treason against the United 
 States to consist only in levying war against 
 them, or in adhering to their enemies, giving 
 them aid or comfort. By the same article of 
 the constitution, no person shall be convicted 
 of treason unless on the testimony of two 
 witnesses to the same overt act, or on confes- 
 sion in open court. 
 
 By the same article of the constitution, no 
 " attainder of treason shall work corruption 
 of blood except during the life of the person 
 
TREASURE TROVE 
 
 746 
 
 TREATY 
 
 attainted." Every person owing allegiance 
 to the United States who levies war against 
 them, or adheres to their enemies, giving them 
 aid and comfort within the United Stsites or 
 elsewhere, is guilty of treason ; R. S. § 6331. 
 The penalty is death, or, at the discretion of 
 the court, imprisonment at hard labor for not 
 less than five years and a fine of not less than 
 ten thousand dollars ; and every person con- 
 victed of treason is rendered incapable of 
 holding any office under the United States ; 
 R. S. 1 5332. 
 
 The term enemies, as used in the constitu- 
 tion, applies only to subjects of a foreign 
 power in a state of open hostility with us. To 
 constitute a "levying of war" there must be 
 an assemblage of persons with force and arms 
 to overthrow the government or resist the 
 laws. All who aid in the furtherance of the 
 common object of levying war against the 
 United States, in however minute a degree, 
 or however remote from the scene of action, 
 are guilty of treason; 4 Sawy. 457, per 
 Field, J. 
 
 Treason may be committed against a state ; 
 1 Story, 614; 11 Johns. 549. 
 
 See, generally, 3 Story, Const. 39, p. 667 ; 
 Sergeant, Const, c. 30 ; United States vs. 
 Fries, Pamph.; 1 Tucker, Bla. Com. App. 
 275, 276 ; 3 Wilson, Law Lect. 96 ; Foster, 
 Disc. (I); Burr's Trial ; 4 Cra. 126, 469; 1 
 Dall. 35 ; 2 id. 246, 355 ; 3 Wash. C. C. 234 ; 
 1 Johns. 553; 11 id. 549; Comyns, Dig. 
 Justices (K); 1 East, PI. Cr. 37-158 ; 23 
 Law Reporter, 597, 705 ; Bish. Cr. Law ; 20 
 Wall. 92 ; 16 id. 147 ; 92 U. S. 202 ; 93 id. 
 274. 
 
 TREASTTRE TROVE. Found treasure. 
 
 This name is given to such money or coin, 
 gold, silver, plate, or bullion, which, having been 
 hidden or concealed in tlie earth, or other pri- 
 vate place so long that its owner is unknown, 
 has been discovered by accident. Should the 
 owner be found, it must be restored to him ; and 
 in case of not finding him, the property, accord- 
 ing to the English law, belongs to the king. In 
 the latter case, by the civil law, when the trea- 
 sure was found by the owner of the soil he was 
 considered as entitled to it by the double title of 
 owner and finder ; when found on another's pro- 
 perty, one-half belonged to the owner of the 
 estate and the other to the finder ; when found 
 on public property, it belonged one-half to the 
 public treasury and the other to the finder. 
 Lejons du Dr. Rom. §§ 350-353. This Includes 
 not only gold and silver, but whatever may con- 
 stitute riches : as vases, urns, statues, etc. 
 
 The Roman definition includes the same things 
 under the word pecunia ; but the thing found 
 must have a commercial value ; for ancient 
 tombs would not be considered a treasure. The 
 thing must have been hidden or concealed in the 
 earth, and no one must be able to establish his 
 right to it. It must be found by a pure acci- 
 dent, and not in consequence of search ; Dalloz, 
 Diet. Propriiti, art. 3, s. 3. 
 
 According to the French law, le trfeor est 
 toute chose cachie ou enfouie, sur laqnplle per- 
 Bonne ne peut justlfler sa propriiti, et qui estd^-. 
 couverte par le pur efiet du hasard. Code, Civ. 
 16. SeeiTouUier, n. 34. See, generally, 20 
 Viner, Abr. 414 ; 7 Comyns, Dig. 649 ; 1 Brown, 
 
 Civ. Law, 237 ; 1 Bla. Com. 295 ; Pothier, 
 Traits du Droit de Propriiti, art. 4. 
 
 TREASURER. An officer intrusted with 
 the treasures or money either of a private 
 individual, a corporation, a company, or a . 
 state. 
 
 It is his duty to use ordinary diligence in 
 the performance of his office, and to account 
 with those whose money he has. 
 
 TREASURER OP THE UNITED 
 STATES. This officer is appointed by the 
 president by and with the advice and consent 
 of the senate. Before entering on the duties 
 of his office, the treasurer is required to give 
 bond, with sufficient sureties, approved by the 
 secretary of the treasury and the first comp ■ 
 troUer, in the sum of one hundred and fifty 
 thousand dollars, payable to the United 
 States, with condition for the faithful perfor- 
 mance of the duties of his office and for the 
 fidelity of the persons by him employed. 
 
 His principal duties are — to receive and 
 keep the moneys of the United States, and 
 disburse the sam6 upon warrants drawn by 
 the secretary of the treasury, countersigned 
 by either comptroller and recorded by the 
 register ; to take receipts for all moneys paid 
 by him ; to render his account to the first 
 comptroller quarterly, or oftener if required, 
 and transmit a copy thereof, when settled, to 
 the secretary of the treasury ; to lay be- 
 fore each house, on the third day of every 
 session of congress, fair and accurate copies 
 of all accounts by him from time to time ren- 
 dered to and settled with the first comptroller, 
 and a true and perfect account of the state of 
 the treasury ; to submit at all times to the 
 secretary of the treasury and the comptrol- 
 ler, or either of them, the inspection of the 
 moneys in his hands. R. S. §§ 301-311. 
 
 TREASURY. The place where treasure 
 is kept ; the office of a treasurer. The term 
 is more usually applied to the public than to 
 a private treasury. See Department. 
 
 TREASURY NOTES. The treasury 
 notes of the United States payable to holder 
 or to bearer at a definite future time are ne- 
 gotiable commercial paper, and their transfer- 
 ability is subject to the commercial law of 
 other paper of that character. Where such 
 a paper is overdue a purchaser takes subject to 
 the rights of antecedent holders to the same 
 extent as in other paper bought after its ma- 
 turity ; 21 Wall. 138. See, also, 57 N. Y. 
 573; 8. c. 15 Am. Rep. 534. 
 
 TREATY. A compact made between 
 two or more independent nations with a view 
 to the public welfare. Treaties are for a 
 perpetuity, or for a considerable time. Those 
 matters which are accomplished by a single 
 act and are at once perfected in their execu- 
 tion are called agreements, conventions, and 
 pactions. 
 
 Personal treaties relate exclusively to the 
 persons of the contra^ing parties, such as 
 family alliances, and treaties guaranteeing 
 
TREATY OF PEACE 
 
 746 
 
 TREE 
 
 the throne to a particular sovereign and his 
 family. As they relate to the persons, they 
 expire of course on the death of the sovereign 
 or the extinction of his family. 
 
 Real treaties relate solely to the subject- 
 matters of the convention, independently of 
 the persons of the contracting parties, and 
 continue to bind the state although there may 
 be changes in its constitution or in the per- 
 sons of its rulers. Vattel, Law of Nat. b. 2, 
 c. 12, §§ 183-197; Boyd's Wheat. Int. Law, 
 § 29. 
 
 On the part of the United States, treaties 
 are made by the president, by and with the 
 consent of the senate, provided two-thirds of 
 the senators present concur. Const, art. 2, 
 s. 2, n. 2. 
 
 No state shall enter into any treaty, alli- 
 ance, or confederation; Const, art. 1, s. 10, 
 n. 1 ; nor shall any state, without the con- 
 sent of congress, enter into any agreement or 
 compact with another state or with a foreign 
 power ; id. art. 1, sec. 10, n. 2 ; 3 Story, 
 Const. § 1395. 
 
 A treaty is declared to be the supreme law 
 of the land, and is, therefore, obligatory on 
 courts; 1 Cra. 103; 1 Wash. C. C. 322; 1 
 Paine, 55; whenever it operates of itself 
 without the aid of a legislative provision ; 
 but when the terms of the stipulation import 
 a contract, and either of the parties engages 
 to perform a particular act, the treaty ad- 
 dresses itself to the political, not to the judi- 
 cial, department, and the legislature must 
 execute the contract before it can become a 
 rule of the court ; 2 Pet. 314. It need hardly 
 be said that a treaty cannot change the con- 
 stitution or be held valid if it be in violation 
 of that instrument. The effect of treaties 
 and acts of congress, when in conflict, is not 
 settled by the constitution. But the question 
 is not involved in any doubt as to its solution. 
 A treaty may supersede a prior act of con- 
 gress, and an act of congress may supersede 
 a prior treaty ; and this is true both of trea- 
 ties with Indians and foreign nations ; per 
 Swayne, J., in 11 Wall. 620; so in 8 Op. 
 Atty.-Gen. 354. A treaty changes the pre- 
 existing laws, and must be so regarded by the 
 courts; 1 Cra. 37; 6 Op. Atty.-Gen. 291. 
 
 As affecting the rights of contracting go- 
 vernments, a treaty is binding from the date 
 of its signature, and the exchange of signa- 
 tures has a retroactive effect, confirming the 
 treaty from its date ; but a different rule pre- 
 vails when the treaty operates on individual 
 rights ; 9 Wall. 32. 
 
 The law of the interpretation of treaties is 
 substantially the same as in the case of other 
 contracts ; Woolsey, Int. Law, 185. 
 
 See Story, Const.; Sergeant, Const. Law ; 
 4 Hall, L. J. 461 ; Wheat. 161 ; 3 Dall. 
 199; 1 Kent, *165, *284 ; see 3 Law Mag. 
 & Rev., 4 series, 91 (On the Obligation of 
 Treaties). 
 
 TREATY OP PEACE. A treaty of 
 peace is an agreemeht or contract made by 
 beUigerent powers, in which they agree to 
 
 lay down their arms, and by which they stipu- 
 late the conditions of peace and regulate the 
 manner in which it is to be restored and sup. 
 ported. Vattel, b. 4, c. 2, § 9. 
 
 TREBLE COSTS. In Bngliah Prac- 
 tice. The taxed costs and three-fourths the 
 same added thereto. It is computed by add- 
 ing one-half for double costs, and in addition 
 one-half of one-half for treble costs. 1 Chitty 
 Bail, 137; 1 Chitty, Pr. 27. 
 
 In American Law. In Pennsylvania the 
 rule is different : when an act of a-isembly 
 gives treble costs, the party is allowed three 
 times the usual costs, with the exception that 
 the fees of the officers are not to be trebled 
 when they are not regularly or usually pay- 
 able by the defendant; 2 Rawle, 201. 
 
 And in New York the directions of the 
 statute are to be strictly pursued, and the 
 costs are to be trebled; 2 Dunl. Pr. 731. 
 
 TREBLE DAMAGES. In actions aris- 
 ing ex ooniractu, some statutes give treble 
 damages ; and these statutes have been libe- 
 rally construed to mean actually treble dam- 
 ages : for example, if the jury give twenty 
 dollars damages for a forcible entry, the court 
 will award forty dollars more, so as to make 
 the total amount of damages sixty dollars ; 4 
 B. & C. 154 ; M'Clel. 567. See Patent. 
 
 The construction on the words treble dam- 
 ages is different from that which has been put 
 on the words treble costs. See 6 S. & E. 
 288 ; 1 Browne, Penn. 9 ; 1 Cow. 160, 175, 
 584 ; 8 id. 115. 
 
 TREBUCKET. The name of an engine 
 of punishment, said to be synonymous with 
 tumbrel. 
 
 TREE. A woody plant, which in respect 
 of thickness and height grows greater than 
 any other plant. 
 
 Trees are part of the real estate while grow- 
 ing and before they are severed from the free- 
 hold ; but as soon as they are cut down they 
 are personal property. 
 
 Some trees are timber-trees, while others 
 do not bear that denomination. See Timber ; 
 2 Bla. Com. 281. 
 
 Trees belong to the owner of the land where 
 they grow ; but if the roots go out Q£one man's 
 land into that of another, or the branches 
 spread'over the adjoining estates, such roots 
 or branches may be cut off by the owner of 
 the land into which they thus s^i'ow ; RoUe, 
 394; 3 Bulstr. 198; Viner, Abr. Trees (E), 
 Nuisance (W 2) ; 1 Suppl. to Ves. Jr. 138 ; 
 2 Suppl. Ves. Ch. 162, 448 ; 6 Ves. Ch. 109. 
 
 When the roots grow into the adjoining 
 land, the owner of such land may lawfully 
 claim a right to hold the tree in common with 
 the owner of the land where it was planted ; 
 but if the branches only overshadow the ad- 
 joining land, and the roots do not enter it, 
 the tree wholly belows to the owner of the 
 estate where the roots grow ; 1 Ld. Raym. 
 737. See 1 Pick. 224; 6 N. H. 430; 7 
 Conn. 125; 11 Co. 50; Hob. 310; 2 RoUe, 
 141 ; 5 B. & Aid. 600 ; Washb. Easem. ; 
 
TRESAILE 
 
 747 
 
 TRESPASS 
 
 Code Civ. art. 671 ; Pardessus, 2V. des Ser- 
 vitudes, 297 ; Dalloz, Diet. Servitudes, art. 
 3, § 8 i F. Moore, 812 ; Plowd. 470 ; 5 B. & 
 C. 897. When the tree grows directly on the 
 boundary-line, so that the line passes through 
 it, it is the property of both owners, whether 
 it be marked as a boundary or not ; 1 2 N. H. 
 454. 
 
 TRESAILE, or TRESATLE. The 
 
 grandfather's grandfather. 1 Bla. Com. 186. 
 
 TRESPASS. Any misfeasance or act of 
 one man whereby another is injuriously treated 
 or damnified. 3 Bla. Com. 208; 7 Conn. 
 125. 
 
 Any unlawful act committed with violence, 
 actual or implied, to the person, property, or 
 rights of another. 
 
 Any unauthorized entry upon the realty of 
 another to the damage thereof. 
 
 The word is used oftener in the last two some- 
 what restricted signiflcations than in the first 
 eenee here given. In determining the nature of 
 the act, neither the amount of violence or the 
 intent with which it is offered, nor the extent of 
 the damage accomplished or the purpose for 
 which the act was committed, are of any impor- 
 tance : since a person who enters upon the land 
 of another without leave, to lead off his own 
 runaway horse, and who breaks a blade of grass 
 in 60 doing, commits a trespass ; 3 Humphr. 
 325 ; 6 Johns. 5. 
 
 It is said that some damage must be committed 
 to make an act a trespass. It is undoubtedly 
 true that damage is required to constitute a tres- 
 pass for which an action will lie ; but, so far as 
 tlie tort itself is concerned, it seems more than 
 doubtful if the mere commission of an act affect- 
 ing another, without legal authority, does not 
 constitute trespass, though until damage is done 
 the law will not regard it, inasmuch as the law 
 does not regard trifles. 
 
 The distinction between the different classes of 
 trespass is of importance in determining the na- 
 ture of the remedy. ■ 
 
 A trespass committed with force is said to 
 be done vi et armis ; one committed by entry 
 upon the realty, by breaking the close. 
 
 In Practice. A form of action which 
 lies to recover damages for the injury sus- 
 tained by the plaintiflf", as the immediate con- 
 sequence of some wrong done forcibly to his 
 person or property, against the person com- 
 Initting the same. 
 ' The action lies for injuries to the person of 
 the plaintiff: as, by assault and battery, 
 wounding, imprisonment, and the like ; 9 Vt. 
 352 ; 6 Blackf. 375. ^ 
 
 It lies, also, for forcible injuries to the per- 
 son of another, whereby a direct injury is 
 done to the plaintiff in regard to his rights as 
 parent, master, etc. ; 2 Aik. 465 ; 2 Caines, 
 292 ; 8 S. & R. 36. It does not lie for mere 
 non-feasance, nor where the matter affected 
 was not tangible. 
 
 The action lies for injuries to personal pro- 
 perty, which may be committed by the seve- 
 ral acts of unlawfully striking, chasing if 
 alive, and carrying away to the damage of 
 the plaintiff, a personal chattel; 1 Wms, 
 Saund. 84, nn. 2, 3 ; Fitzh. N. B. 86 ; Cro, 
 
 Jac. 362 ; of which another is the owner and 
 in possession ; 2 Root, 209 ; 5 Vt. 97 ; and 
 for the removal or injury of inanimate per- 
 sonal property ; 12 Me. 122; 13 Pick. 139; 
 6 Johns. 348 ; q£. which another has the pos- 
 session, actual or constructive ; 21 Pick. 369 ; 
 13 Johns. 141 ; 1 N. H. 110 ; 4 J. J. Marsh. 
 18 ; 2 Bail. So. C. 466 ; 4 Munf. 444 ; 6 
 Blackf. 136 ; 4 111. 9 ; 6 W. & S. 323 ; with- 
 out the owner's assent. A naked possession 
 or right to immediate possession is sufficient 
 to support this action ; 1 Term, 480 ; 7 Johns. 
 535 ; 5 Vt. 274; 1 Penn. 238 ; 17 S. & E. 
 251 ; 11 Mass. 70 ; 11 Vt. 521 ; 1 Ired. 163; 
 10 Vt. 166. See Trespasser. 
 
 The action lies also for injuries to the realty 
 consequent upon entering without right upon 
 another man's land (breaking his close). The 
 inclosure may be purely imaginary ; 3 Bla. 
 Com. 209 ; 1 D. & B. 371 ; but reaches to the 
 sky and to the centre of the earth ; 19 Johns. 
 381. 
 
 The plaintiff must be in possession with 
 some title ; 5 East, 485 ; 9 Johns. 61 ; IN. 
 
 6 M'C. 356 ; 10 Conn. 225; 6 Rand. 8, 556 ; 
 4 Watts, 377 ; 4 Pick. 305 ; 4 Bibb, 218 ; 2 
 Hill, So. C. 466 ; 1 Harr. & J. Md. 295 ; 31 
 Penn. 304 ; 5 Harr. Del. 320 ; 11 Ired. 417; 
 though mere title is sufficient where no one is 
 in possession ; 2 Ala. 229 ; 1 Wend. 466 ; 1 
 Vt. 485 ; 8 Pick. 333 ; 4 D. & B. 68 ; as in 
 case of an owner to the centre of a highway; 
 4 N. H. 36 ; 1 Penn. 336 ; see 17 Pick. 357; 
 and mere possession is sufficient against a 
 wrong-doer; 9 Ala. 82; 1 Rice, 368; 23 Ga. 
 590 ; see 22 Pick. 295 ; and the possession 
 maybe by an agent; 3 M'Cord, 422; but 
 not by a tenant ; 8 Pick. 235 ; 1 Hill, So. C. 
 260 ; see 13 Ind. 64 ; other than a tenant at 
 will ; 15 Pick. 102. 
 
 An action will not lie unless some damage 
 is committed ; but slight damage only is re- 
 quired; 2 Johns. 357; 4 Mass. 266. 
 
 Some damage must have been done to sus- 
 tain the action ; 2 Bay, 421 ; though it may 
 have been very slight : as, breaking glass ; 4 
 Mass. 140. 
 
 The action will not lie where the defendant 
 has a justification sufficient to excuse the act 
 committed, though he acted without authority 
 from the owner or the person affected ; 8 Law 
 Rep. 77. See Justification; Trespasser. 
 Accident may in some cases excuse a trespass; 
 
 7 Vt. 62; 4 M'Cord, 61 ; 12,Me. 67. 
 
 The declaration must contain a concise 
 statement of the injury complained of, whe- 
 ther to the person, personal or real property, 
 and it must allege that the injury was 
 committed vi et armis and contra pacem. See 
 
 COBTTINtTANDO. 
 
 The plea of not guilty raises the general 
 issue, and under it the defendant may give in 
 evidence any facts which show that the pro- 
 perty was not in possession of the plaintiff 
 rightfully as against the defendant at the 
 time of the injury, or that the injury was not 
 committed by the defendant with force. 
 
 Other matters must, in general, be pleaded 
 
TRESPASS 
 
 748 
 
 TRESPASSER 
 
 specially.^ See Trespass Quare Clausum. 
 Matters in justification, as, authority by 
 law ; 3 Hill, N. Y. 619 ; 4 Mo. 1 ; defence 
 of the defendant's person or property, taking 
 a distress on premises other than those de- 
 mised, etc. ; 1 Chitty, PI. 439 ; custom to 
 enter ; 4 Pick. 145 ; right of way ; 7 Mass. 
 385 ; etc., must be specially pleaded. 
 
 Judgment is for the damages assessed by 
 the jury when for the plaintiff, and for costs 
 when for the defendant. 
 
 TRESPASS r>E BONIS ASFORTA- 
 
 TIS (Lat. de bonis asportaiis, for goods 
 which have been carried away). 
 
 In Practice. A form of action brought by 
 the owner of goods to recover damages for un- 
 lawfully taking and carrying them away. 1 
 Me. 117. 
 
 It is no answer to the action that the de- 
 fendant has returned the gpods ; 1 Bouvier, 
 Inst. n. 36 (H). 
 
 TRESPASS FOR MESNI! PROFITS. 
 
 A form of action supplemental to an action 
 of ejectment, brought against the tenant in 
 possession to recover the profits which he has 
 unlawfully received during the time of his oc- 
 cupation. 3 Bla. Com. 205; 4 Burr. 1668. 
 The person who actually received the profits 
 is to be made defendant, whether defendant to 
 the ejectment or not ; 11 Wheat. 280. It lies 
 after a recovery in ejectment; 5 Cow. 33 ; 11 
 S. & R. 55 ; or entry ; 6 N. H. 391 ; but 
 not trespass to try title ; Const. 102 ; 1 
 M'Cord, 264 ; and the judgment in ejectment 
 is conclusive evidence against the defendant 
 for all profits which have accrued since the 
 date of the demise stated in the declaration 
 in ejectment ; 1 Blackf. 56 ; 2 Rawle, 49 ; 
 but suit for any antecedent profits is open to 
 a new defence, and the tenant may plead the 
 statute of limitations as to all profits accruing 
 beyond the period fixed by law ; 3 Sharsw, 
 Bla. Com. 206, n. ; 2 Root, 440. 
 
 TRESPASS ON THE CASE. The 
 
 form of action by which a person seeks to re- 
 cover damages caused by an injury unaccom- 
 panied with force or which results indirectly 
 from the act of the defendant. It is more 
 generally called, simply, case. See Case. 
 
 TRESPASS QUARE CLAXTSUM 
 FREGIT {Lat. quare clausum f regit, because 
 he had broken the close). The form of action 
 irhich lies to recover damages for injuries to 
 the realty consequent upon entry without 
 right upon the plaintiff's land. 
 
 Mere possession is sufficient to enable one 
 having it to maintain the action; 12 Wend. 
 488; 14 Pick. 297 ; 3 A. K. Marsh. 331 ; 1 
 Harr, N. J. 335; 22 Me. 350; 5 Blackf. 
 465 ; 1 Hawks, 485 ; 7 Gill & J. 321 ; see 1 
 Halst. 1 ; except as against one claiming un- 
 der the rightful owner; 6 Halst. 197 ; 6 N. 
 H. 9 ; 2 111. 181 ; 7 Mo. 333 ; 3 Mete. Mass. 
 239; and no one but the tenant can have the 
 action ; 13 Me. 87 ; 19 Wend. 507 ; 9 Vt. 383 ; 
 except in case of tenancies at will or by a less 
 
 secure holding; 8 Pick. 333; 15 id. 102- 7 
 Mete. Mass. 147 ; 1 Dev. 435. ' 
 
 The action lies where an animal of the de- 
 fendant breaks the plaintiff's close, to his 
 injury; 7 W. & S. 367; 81 Penn. 328. 
 
 TRESPASS VI ET ARMIS (Lat. vi et 
 armis, with force and arms). The form of 
 action which lies to recover damages for an 
 injury which is the immediate consequence of 
 a forcible wrongful act done to the person or 
 personal property ; 2 Const. 294.- It is dis- 
 tinguished from case in this, that the injury in 
 case is the indirect result of the act done. 
 See Case. / 
 
 TRESPASS TO TRY TITLE. The 
 
 name of the action used in South Carolina 
 for the recovery of the possession of real 
 property and damages for any trespass com- 
 mitted upon the same by the defendant. 
 
 It was substituted by the act of 1791 in place 
 of the action of ejectment, and is in form an ac- 
 tion of trespass quare claumm fregit, with the 
 single exception that upon the writ of capias ad 
 reapondendvm, and the copy writ a notice must 
 be indorsed that " the action is brought to try 
 the title as well as for damages." The action 
 must be brought in the name of the real owner 
 of the land ; and he can only recover on the 
 strength of his own title, and not on the weak- 
 ness of his adversary's. It is usual to appoint 
 one or more surveyors, who furnish at the trial a 
 map or plot of the land in dispute ; and with re- 
 ference to that the verdict is rendered by the 
 jury. A trespass must be proved to have been 
 committed by the defendant or his agent ; and 
 the-plaintlff, if he recovers at all, is entitled to a 
 verdict for the value of the rent down to the time 
 of the trial. The judgment for the plaintiff is 
 only for the damages ; but upon that he is en- 
 titled to a writ of habere facias possessionem. 
 
 TRESPASSER. One who does an un- 
 lawful act, or a lawful act in an unlawful 
 manner, to the injury of the person or pro- 
 perty of another. 
 
 Any act which is injurious to the property 
 of another renders the doer a trespasser, un- 
 less he has authority to do it from the owner 
 or custodian; 14 Me. 44; 5 Blackf. 237; 8 
 N. H. 220 ; 18 Pick. 110 ; or by law ; 2 Conn. 
 700; 3 Binn. 215; 10 Johns. 138; 6 Ohio, 
 144 ; 12 Ala. 257 ; 1 N. H. 339 ; 13 Me. 260 ; 
 6 111. 401 ; 1 Humphr. 272 ; and in this lat- 
 ter case any defect in his authority, as, want 
 of jurisdiction by the court ; 11 Conn. 95 ; 3 
 Cow. 206 ; defective or void proceedings; 16 
 Me. 33 ; 12 N. H. 148 ; 12 Vt. 661 ; 2 Dev. 
 370; misapplication of process; 6 Monr. 
 296 ; 14 Me. 312 ; 17 Vt. 412 ;■ renders him 
 liable as a trespasser. 
 
 So, too, the commission of a legal act in 
 an illegal manner, as, the execution of legal 
 process illegally; 3 Johns. Cas. 27; 5 Me. 
 291 ; 6 Pick. 455 ; abuse of legal process ; 
 Breese, 143; 16 Ala. 67; exceeding the 
 authority conferred by the owner ; 13 Me. 
 115; or bylaw; 13 Mass. 520; 10 S. & R. 
 399; 17 Vti 609; renders a man a tres- 
 passer. 
 
 In all these cases, where a man begins an 
 act which is legal by reason of some author- 
 
TRESPASSER AB INITIO 
 
 749 
 
 TRIAL 
 
 ity given him, and then becomes a trespasser 
 by subsequent acts, he is held to be a tres- 
 passer ab initio (from the beginning) ; q. v. 
 
 A person may be a trespasser by ordering 
 such an act done as makes the doer a tres- 
 passer; 14 Johns. 406 ; 16 Ov. 13 ; 10 Pick. 
 543 ; or by subsequently assenting, in some 
 cases; 1 Rawle, 121; 1 B. Mour. 96; or 
 assisting, though not present ; 2 Litt. 240. 
 
 TRESPASSER AB INITIO. A term 
 applied to denote that one who has com- 
 menced a lawful act in a proper manner, has 
 performed some unlawful act, or some lawful 
 act in an unlawful manner, so connected with 
 the previous act that he is to be regarded as 
 having acted unlawfully from the beginning. 
 See 6 Carpenters' Case, 8 Co. 146 ; s. o. 1 
 Sm. L. C. *216 ; 5 Taunt. 198 ; 7 Ad. & E. 
 176; 11 M. & W. 740 ; 15 Johns. 401. See 
 Ab Initio. 
 
 TRET. An allowance made for the water 
 or dust that may be mixed with any commo- 
 dity. It differs from tare, q. v. 
 
 TRIAL. In Practice. The examination 
 before a competent tribunal, according to the 
 laws of the land, of the facts put in issue in 
 a cause, for the purpose of determining such 
 issue. 4 Mas. 232. 
 
 " Trial," as used in the acts of congress of 
 July 27, 1866, and March 2, 1867, appropriately 
 designates a trial by the jury of an issue which 
 will determine the facts in an action at law; and 
 " final hearing," in contradistinction to hearings 
 upon interlocutory matters, the hearing of a 
 cause upon its merits by a judge sitting in equity ; 
 112 Mass. 343 ; 19 Wall. 214. 
 
 Trial by certijicate is a mode of trial allowed 
 by the English law in those cases where the 
 evidence of the person certifying is the only 
 proper criterion of the point in dispute. For, 
 when the fact in question lies out of the 
 cognizance of the court, the judges must rely 
 on the solemn averments or information of 
 persons in such station as affords them the most 
 clear and complete knowledge of the truth. 
 
 As, therefore, such evidence, if given to a 
 jury, must always be conclusive, the law, to 
 save trouble and circuity, permits the fact 
 tofce determined upon such certificate merely; 
 3 Bla. Com. 333; Steph. PI. 122. 
 
 Trial by grand assize is a peculiar mode of 
 trial allowed in writs of right. See Assize ; 
 Grand Assize. 
 
 'Trial by inspection or examination is a 
 form of trial in which the judges of the court, 
 upon the testimony of their own senses, decide 
 the point in dispute. 
 
 This trial takes place when, for the greater 
 expedition of a cause, in some point or issue 
 bemg either the principal question or arising 
 collaterally out of it, being evidently the 
 object of sense, the judges of the court, upon 
 the testimony of their own senses, shall de- 
 cide the point in dispute. For where the 
 affirmative or negative of a question is mat- 
 ter of such obvious determination, it is not 
 thought necessary to summon a jury to de- 
 
 cide it, — who are properly called in to inform 
 the conscience of the court in respect of 
 dubious facts ; and, therefore, when the fact 
 from its nature must be evident in the court 
 either from ocular demonstration or other 
 irrefragable proof, there the law departs from 
 its usual resort, the verdict of twelve men, 
 and relies on its judgment alone. For ex- 
 ample, if a defendant pleads in abatement 
 of the suit that the plaintiff is dead, and one 
 appears and calls himself the plaintiff, which 
 the defendant denies, in this case the judges 
 shall determine by inspection and examina^ 
 tion whether he be plaintiff or not ; 9 Co. 30 ; 
 3 Bla. Com. 331 ; Steph. PI. 128. 
 '' Judges of courts of equity frequently de- 
 cide facts upon mere inspection. The most 
 familiar examples are those of cases where 
 the plaintiff prays an injunction on an alle- 
 gation of piracy or infringement of a patent 
 or copyright ; 5 Ves. Ch. 709 ; and the cases 
 there cited. And see 2 Atk. 141 ; 2 B. & 
 C. 80 ; 4 Ves. 681 ; 2 Russ. Ch. 385 ; 1 Ves. 
 & B. 67 ; Cro. Jac. 230; 1 Dall. 166. 
 
 Trial by jury is that form of trial in which 
 the facts are determined by twelve men im- 
 partially selected from the body of the county. 
 See Jury. 
 
 To insure fairness, this mode of trial must 
 be in public : the parties to the suit, or, in a 
 criminal trial, the prisoner, must be present ; 
 but the continuance of the trial and the taking 
 of testimony during the brief absence of the 
 prisoner from the court-room on business con- 
 nected with the trial, has been held not to be 
 error; 25 Alb. L. J. 303 ; 43 F. Y. 1. See 
 PuESKNCB. Prisoners may be manacled 
 during the trial, at the discretion of the court; 
 1 So. Law Jour. 348 ; although it has been 
 rarely done in modern times ; and any rea- 
 sonable means may be taken to insure the 
 safety of the prisoner ; but his counsel must 
 be allowed free access to him at the trial. 
 See 15 Am. L. Rev. 809. The trial is con- 
 ducted by selecting a jury in the manner pre- 
 scribed by the local statutes, who must be 
 sworn to fry the matter in dispute according to 
 law and the evidence. Evidence is then given 
 by the party on whom rests the onus probandi 
 or burden of the proof : as the witnesses are 
 called by a party they are questioned by him, 
 and after they have been examined, which is 
 called an examination in chief, they are sub- 
 ject to a cross-examination by the other party 
 as to every part of their testimony. Having 
 examined all his witnesses, the party who 
 supports the affirmative of the issue closes ; 
 and the other party then calls his witnesses to 
 explain his case or support his part of the 
 issue; these are in the same manner liable to 
 a cross-examination. 
 
 In case the parties should differ as to what 
 is to be given in evidence, the judge must 
 decide the matter, and his decision is conclu- 
 sive upon the parties so far as regards the 
 trial ; but bills of exceptions may be taken ; 
 see Bill of Exceptions ; Wells, Law & 
 F. ; motion in an-est of judgment made, or 
 
TKIAL 
 
 750 
 
 TRIAL 
 
 other proper means adopted, so that the matter 
 may be examined before another tribunal. 
 When the evidence has been closed, the coun- 
 sel for the party who supports the affirmative 
 of the issue then addresses the jury, by re- 
 capitulating the evidence and applying the 
 law to the facts and showing on what particu- 
 lar points he rests his case. The opposite 
 counsel then addresses the jury, enforcing; in 
 like manner the facts and the law as appHca^ 
 ble to his side of the case ; to which the other 
 counsel has a right to reply. It is then the 
 duty of the judge to sum up the evidence and 
 explain to the jury the law applicable to the 
 case; this is called his charge. See Charge; 
 Thompson, Ch. Jury. The jurors then re- 
 tire to deliberate upon their verdict, and, 
 after having agreed upon it, they come into 
 court and deliver it in public. 
 
 In case they cannot agree, they may, in 
 cases of necessity, be discharged ; but it is 
 said in capital cases they cannot be. See 
 Discharge of a Jury ; Jeopardy. 
 
 A trial by jury in criminal cases does not 
 essentially differ from the trial of a civil 
 action ; but the accused is entitled to some 
 privileges in the selection of jurors who are 
 to try him, in the former case, which do not 
 exist in the latter. Of these the right of 
 challenge, or of taking exception to the jurors, 
 is much the most extensive. See Challenge. 
 He has a right to be distinctly informed of 
 the nature of the charge against him, with a 
 copy of the indictment. He is also entitled 
 to a list of the jurors who are to pass upon 
 his case, and of the names of the witnesses 
 who will testify, a certain number of days 
 before the trial. And the jury must delibe- 
 rate and decide upon the principle that every 
 man is to be presumed innocent until he is 
 proved to be guilty ; and, as a necessary con- 
 sequence, they cannot convict him if they 
 have any reasonable doubt of his guilt. See 
 Worthington, Juries ; Archb. N. P ; Graham 
 & W. New Trials ; 3 Bla. Com. c. 22 ; 15 S. 
 & R. 61 ; Due Process of Law; Jury. 
 
 Trial at nisi prius. Originally, a trial 
 before a justice in eyre. Afterwards, by 
 Westm. 2, 13 Edw. I. c. 30, before a justice 
 of assize; 3 Bla. Com. 353. See Nisi 
 Prius. At nisi prius there is, generally, 
 only one judge, sometimes more. 8 Chitty, 
 Gen. Pr. 39. In the United States, a trial 
 before a single judge. 
 
 Trial by the record. This trial applies to 
 cases where an issue of nul tiel. record is 
 joined in any action. If on one side a re- 
 cord be asserted to exist, and the opposite 
 party deny its existence under the form of 
 traverse, that there is no such record remain- 
 ing in court, as alleged, and issue be joined 
 thereon, this is called an issue of nul tiel re- 
 cord; and the court awards, in such a ease, a 
 trial by inspection and examination of the 
 record. Upon this the party affirming its 
 existence is bound to produce it in court on a 
 day given for the purpose, and if he fail to 
 do so, judgment is given for his adversary. 
 
 The trial by record is not only in use when 
 an issue of this kind happens to arise for de- 
 cision, but it is the only legitimate mode of 
 trying such issue ; and the parties cannot put 
 themselves upon the country; Steph, PI. 122- 
 2 Bla. Com. 330. ' 
 
 Trial by wager of battel. In the old Eng- 
 lish law, this was a barbarous mode of trying 
 facts, among a rude people, founded on the 
 supposition that heaven would always inter, 
 pose and give the victory to the champions 
 of truth and innocence. This mode of trial 
 was abolished in England as late as the stat. 
 59 Geo. III. c. 46, A.d. 1818. It never 
 was in force in the United States. See 3 
 Bla. Com. 337 ; 1 Hale, Hist. Com. Law, 
 188. See a modern case, 1 B. & Aid. 405. 
 See Wager of Battel. 
 
 Trial by wager of law. This mode of 
 trial has fallen into complete disuse ; but, in 
 point of law, it seems in England to be still 
 competent in most cases to which it anciently 
 applied. The most important and best-esta- 
 blished of these cases is the issue of nil debet, 
 arising in action of debt on simple contract, 
 or the issue of nan detinet, in an action of 
 detinue. In the declaration in these actions, 
 as in almost all others, the plaintiff concludes 
 by offering his suit (of which the ancient 
 meaning was followers or witnesses, though 
 the words are now retained as mere form) to 
 prove the truth of his claim. On the other 
 hand, if the defendant, by a plea of nil debet 
 or non detinet, deny the debt or detention, 
 he may conclude by offering to establish the 
 truth of such plea " against the plaintiff and 
 his suit, in such manner as the court shall 
 direct." Upon this the court awards the 
 wager of law; Co. Ent. 119 a; Lilly, Ent. 
 467 ; 3 Chitty, PI. 479 ; and the form of this 
 proceeding, when so awarded, is'that the de- 
 fendant brings into court with him eleven of 
 his neighbors and for himself makes oath 
 that he does not owe the debt or detain the 
 property alleged ; and then the eleven also 
 swear that they believe him to speak the 
 truth ; and the defendant is then entitled to 
 judgment; 3 Bla. Com. 343; Steph. PI. 
 124. Blackstone compares this mode of trial 
 to the canonical purgation of the catholic 
 clergy, and to the decisory oath of the civil 
 law. See Oath, Decisory; Wager of 
 Law. 
 
 Trial by witnesses is a species of trial by 
 witnesses, or per testes, without the interven- 
 tion of a jury. 
 
 This is the only method of trial known to 
 the civil law, in which the judge is left to 
 form in his own breast his sentence upon 
 the credit of the witnesses examined ; but 
 it is very rarely used in the common law, 
 which prefers the trial by jury in almost every 
 instance. 
 
 In England, when a widow brings a writ 
 of dower and the tenant pleads that the hus- 
 band is not dead, this, being looked upon as a 
 dilatory plea, is in favor of the widow, and, 
 for greater expedition, allowed to be tried by 
 
TRIAL LIST 
 
 751 
 
 TRITHING 
 
 witnesses examined before the judges; and 
 so, says Finch, shall no other case in our law; 
 Finch, Law, 423. But Sir Edward Coke 
 mentions others : as, to try whether the ten- 
 nant in a real action was duly summoned ; or, 
 the validity of a challenge to a juror : so that 
 Finch's observation must be confined to the 
 trial of direct and not collateral issues. And, 
 in every case, Sir Edward Coke lays it down 
 that the affirmative must be proved by two 
 witnesses at least ; 3 Bla. Cora. 336. 
 
 Trial at bar. A species of trial now seldom 
 resorted to, and, as to civil causes, abolished by 
 the Judicature Act, 1875, was one held before 
 all the judges of one of the supreme courts of 
 Westminster, or before a quorum representing 
 the full court. The celebrated case of Reg. 
 vs. Castro, otherwise Tichborne vs. Orton, L. 
 R. 9 Q. B. 350, was a trial at bar ; Brown, 
 Diet. The rules of English practice in trials 
 in the high court of justice will be found in 
 the Judicature Act, 1875, Ord. xxxvi., 
 amended by rules of the court of Bee. 1, 
 1876. 2 Tidd's Pr. 747 ; 1 Archbold, Pr. 
 374. 
 
 TRIAL LIST. A list of cases marked 
 down for trial for any one term. 
 
 TRIBUNAL. Tie seat of a judge ; the 
 place where he administers justice. The 
 whole body of judges who compose a juris- 
 diction. The jurisdiction which the judges 
 exercise. 
 
 The term is Latin, and derives its origin 
 from the elevated seat where the tribunes ad- 
 ministered justice. 
 
 TRIBUHAtrX DE GOMMERCi:. In 
 French Law. Certain courts composed of a 
 president, judges and substitutes, which take 
 eognizance of all cases between merchants, 
 and of disagreements among partners. Ap- 
 peals lie from them to the courts of justice. 
 Brown, Diet. 
 
 TRIBTTTE. A contribution which is 
 sometimes raised by the sovereign from his 
 subjects to sustain the expenses of the state. 
 It is also a sum of money paid by one nation 
 to another under some pretended right. 
 "Wolff, §1145. 
 
 TRINEPOS (Lat.). In Roman Law. 
 
 Great-grandson of a grandchild. 
 
 TRINEFTIS (Lat.). Great-granddaugh- 
 ter of a grandchild. 
 
 TRINITY HOUSE. See Elder 
 Brethren. 
 
 TIUNITY SITTINGS. See London 
 AND Middlesex Sittings. 
 
 TRINITY TERM. In English Law. 
 
 One of the four terms of the courts : it 
 begins on the 22d day of May and ends on 
 the 12th of June. Stat. 11 Geo. IV., and 1 
 Will. IV. c. 70. It was formerly a movable 
 term. See Term. 
 
 TRINODA NECESSITAS (Lat.). The 
 threefold necessary public duties to which all 
 
 lands were liable by Saxon law, — viz., for 
 repairing bridges, for maintaining castles or 
 garrisons, and for expeditious to repel inva, 
 sions. In the immunities enumerated in 
 kings' grants, these words were inserted, 
 ' 'exceptis his tribus, expeditione, poniis et arcis 
 constructione." Kennett, Paroch. Antiq. 46; 
 1 Bla. Com. 263. 
 
 TRIORS. In Fractiee. Persons ap- 
 pointed according to law to try whether a 
 person challenged to the favor is or is not 
 qualified to serve on the jury. They do not 
 exceed two in number, without the consent 
 of the prosecutor and defendant, or unless 
 some special case is alleged by one of them, 
 or when only one juror has been sworn and 
 two triors are appointed with him. Co. Litt. 
 158 a\ Bacon, Abr. Juries (E 12). 
 
 The method of selecting triors is thus ex- 
 plained. Where the challenge is made to 
 the first juror, the court will appoint two 
 indifferent persons to be triors ; if they find 
 him indifferent, he shall be sworn and join 
 the triors in determining the next challenge. 
 But when two jurors have been found impar- 
 tial and have been sworn, then the office of 
 the triors will cease, and every subsequent 
 challenge will be decided upon by the jurymen. 
 If more than two jurymen have been sworn, 
 the court may assign any two of them to de- 
 termine the challenges. To the triors thus 
 chosen no challenges can be admitted. 
 
 The triorsexamine the juryman challenged, 
 and decide upon his fitness ; 3 Park. Cr. Gas. 
 467 ; 5 Cal. 347 ; 1 Mich. 451 ; 10 Ired. 295. 
 Their decision is final. They are liable to pun- 
 ishment for misbehavior in office ; 4 Sharws. 
 Bla. Com. 353, n. 8 ; 1 Chitty, Cr. Law, 
 549 ; 15 S. & R. 156 ; 21 Wend. 509 ; 2 
 Green, N. J. 195. The office is abolished 
 in many of the states, the judge acting in their 
 place; 23 Ga. 67; 43 Me. 11. 
 
 The lords also chosen to try a peer, when in- 
 dicted for felony, in the court of the Lord High 
 Steward, q. «.*, are called triors. Moz. & W. 
 
 TRIPARTITE. Consisting of three 
 parts: as, a, AeeA tripartite, between A of the 
 first part, B of the second part, and C of the 
 third part. 
 
 TRIPLICATIO (Lat.). In CivU Law. 
 The reply of the plaintiff (actor) to the re- 
 joinder (duplicatio) of the defendant (reus). 
 It corresponds to the surrejoinder of common 
 law. Inst. 4. 14; Bracton, 1. 5, t. 5, c. 1. 
 
 TRITAVUS (Lat.). In Roman Law. 
 
 The male ascendant in the sixth degree. For 
 the female ascendant in the same degree the 
 term is tritavia. In forming genealogical 
 tables this convenient term is still used. 
 
 TRITHING (Sax. trithinga). The third 
 part of a county, consisting of three or four 
 hundreds. 
 
 A court within the circuit of the trithing, 
 in the nature of a court-leet, but inferior to 
 the county court. Camd. 102. The ridings 
 of Yorkshire are only a corruption of try- 
 
TRIUMVIRI CAPITALES 
 
 752 
 
 TROVER 
 
 things. 1 Bla. Com. 116: Spelm. Gloss. 52 
 Cowel. 
 
 TRIUMVIRI CAPITALES, or TRE- 
 VIRI, or TRESVIRI (Lat.). In Roman 
 Iiaw. Officers who had charge of the prison, 
 through whose intervention punishments were 
 inflicted. Sallust, in Catilin. They had eight 
 lictors to execute their orders. Vicat, Voc. 
 Jur. 
 
 TRIVIAL. Of small importance. It is 
 a rule in equity that a demurrer will lie to a 
 bill on the ground of the triviality of the mat- 
 ter in dispute, as being below the dignity of 
 the court. 4 Bouvier, Inst. n. 4237. See 4 
 Johns. Ch. 183; 4 Paige, Ch. 364. See 
 Maxims, De minimis, etc. 
 
 TRONAGrE. In English Law. A cus- 
 tomary duty or toll for weighing wool : so 
 called because it was weighed by a common 
 trona, or beam. Fleta, lib. 2, c. 12. 
 
 TROVER (Fr. trouver, to find). In 
 Practice. A form' of action which lies to re- 
 Cover damages against one who has, without 
 right, converted to his own use goods or per- 
 sonal chattels in which the plaintiff has a 
 general or special property. 
 
 The action was originally an action of trespass 
 on the case where goods were found by the defend- 
 ant and retained against the plaintiiTs rightful 
 claim. The manner of gaining possession soon 
 came to he disregarded , as the substantial part 
 of the action is the conversion to the defendant's 
 use ; so that the action lies whether the goods 
 came into the defendant's possession by finding 
 or otherwise, if he fails to deliver them upon, the 
 rightful claim of the plaintiff. It differs from 
 detinv£ and replevin in this, that it is brought for 
 damages and not for the specific articles ; and 
 from trespass in this, that the injury is not 
 necessarily a forcible one, as trover may be 
 brought in any case where trespass for injury to 
 personal property will lie ; but the converse is 
 not true. In case possession was gained by a 
 trespass, the plaintiff by bringing his action in 
 this form waives his right to damages for the 
 taking, and is confined to the injury resulting 
 from the conversion ; 17 Piclt. 1 ; 17 Me. 434 ; 7 
 T. B. Monr. 209. 
 
 The action lies for one who has a general 
 or absolute property ; Bull. N. P. 33 ; 2 Hill, 
 So. C. 587; 25 Me. 220; 7 Ired. 418: 23 
 Ga. 484 ; 22 Mo. 495 ; together with a right 
 to immediate possession ; 1 Ry. & M. 99 ; 22 
 Pick. 585; 15 Wend. 474; 6 Blackf. 470; 
 9 Yerg. 262 ; 1 Brev. 495 ; 4 D. & B. 323 ; 
 5Penn. 466; 11 Ala. 859; 42 Me. 197; 19 
 N. H. 419 ; as, for example, a vendor of 
 property sold upon condition not fulfilled ; 2 
 Brev. 324 ; 1 Meigs, 76 ; 19 Vt. 371 ; as to 
 the effect of an intervening lien, see 7 Term, 
 12 ; 2 Cr. M. & R. 659 ; 1 Wash. C. C. 174 ; 
 
 1 Hayw. 193 ; 15 Mass. 242 ; 6 S. & R. 300 ; 
 
 2 N. H. 319; 6 Wend. 603; or a special 
 property, including actual possession as 
 against a stranger ; 2 Saund. 47 ; 1 B. & Ad. 
 159; 6 Johns. 195; 12 id. 403; 18 Wend. 
 63; 15 Mass. 242; 2N. H. 66, 319; 11 Vt. 
 351 ; 4 Blackf. 395 ; as, for example, a 
 sheriff" holding under rightful process ; 1 Pick. 
 232, 889 ; 9 id. 164 ; 1 N. H. 289 ; 7 Johns. 
 
 82 ; 4 Vt. 81 ; 12 Me. 328 ; 2 Murph. 19 ; a 
 mortgagee in possession ; 6 Cow. 323 : g 
 Harr. & J. 100 ; 3 Brev. 68 ; and see 12 N 
 H. 382 ; 31 Ala. n. s. 447 ; 23 Conn. 70 ; a 
 simple bailee, 15 Mass. 242; Wright, Ohio, 
 744; or even a finder merely; 9 Cow. 670- 
 2 Ala. 320 ; 3 Bibb, 284 ; 3 Harr. Del. 608 ; 
 and including lawful custody and a right of 
 detention as against the general owner of the 
 goods or chattels ; 2 Taunt. 268 ; 8 Wend 
 N. Y. 445 ; 3 Blackf. 419; 2 Rich. 13. An 
 executor or administrator is held an absolute 
 owner by relation from the death of the de- 
 cedent; 2 Greenl. Ev. §641; 9 Mete. 504; 
 2 Ga. 119 ; 1 Rice,_ 264, 285 ; 3 Sneed, 484 ; 
 and he may maintain an action for a conver- 
 sion in the lifetime of the decedent ; T. U. P. 
 Charlt. 261; 1 Root, 289 ; 6 Mass. 394; and 
 is liable for a conversion by the decedent ; 1 
 Hayw. 21, 308, 362. 
 
 The property affected must be some per- 
 sonal chattel; 3 S. & R. 613 ; 3 N. H. 484; 
 
 2 D. Chipm. 116 ; specifically set off as the 
 plaintiff''s; 4 B. & C. 948; 6 id. 360; 3 
 Pick. 38 ; 7 Ired. 370 ; 5 Jones, No. C. 16 ; 
 20 Vt. 144 ; including title deeds ; 2 Yeates, 
 537; a copy of a record; Hardr. Ill; 11 
 Pick. 492 ; money, though not tied up ; 4 
 Taunt. 24; 4 E. D. Smith, 162; negotiable 
 securities ; 4 B. & Aid. 1 ; 3 B. & C. 45 ; S 
 Johns. 432; 1 Root, 125, 221 ; 1 Pick. 503 ; 
 
 3 Vt. 99 ; 5 Blackf. 419 ; 27 Ala. N. 8. 228 ; 
 animals feras naiurce, but reclaimed; 10 
 Johns. 102 ; trees and crops severed from the 
 inheritance; 1 Term, 55; 3 Mo. 137,393; 
 7 Cow. 95 ; 15 Mass. 204 ; 8 Penn. 244 ; 4 
 Cal. 184. It will not lie for property in cus- 
 tody of the law ; 9 Johns. 381 ; if rightfully 
 held; see 2 Ala. 576 ; 1 Add. Penn. 376 ; or 
 to which the title must be determined by a 
 court of peculiar jurisdiction only ; 1 Cam. 
 & N. 115; see 14 Johns. 273; or where the 
 bailee has lost the property, or had it stolen, 
 or it has been destroyed by want of •due care ; 
 2 Ired. 98. See Conversion. 
 
 There must have been a conversion of the 
 property by the defendant ; 5 T. B. Monr. 
 89 ; 8 Ark. 204. And a waiver of such con- 
 version will defeat the action ; 20 Pick. 90. 
 For what constitutes a conversion, see Con- 
 version ; also an article on Conversion by 
 Purchase in 15 Am. L. Rev. 363; and on 
 Demand and Refusal in 6 So. L. Bev. 822. 
 
 The declaration must state a rightful pos- 
 session of the goods by the plaintiff ; Hempst. 
 160; must describe the goods with conve- 
 nient certainty, though not so accurately as in 
 detinue; Bull. N. P. 32; 5 Gray, 12; must 
 formally allege a finding by the defendant, 
 and must aver a conversion ; 12 N. Y._ 313. 
 It is not indispensable to state the price or 
 value of the thing converted ; 2 Wash. Va. 
 192. 
 
 The plea of not guilty raises the general 
 issue. 
 
 Judgment when for the plaintiff" is that he 
 recover his damages and costs, or, in some 
 states, in the alternative, that the defendant 
 
TKUCE 
 
 75S 
 
 TRUST 
 
 restore the goods or pay, etc. ; 19 6a. 579 ; 
 when for the defendant, that he recover his 
 costs. The measure of damages is the value 
 of the property at the time of the conversion, 
 with interest; 17 Pick. 1; 7 T. B. Monr. 
 209; 38 Me. 174; 26 Ala. n. s. 213; 21 
 Barb. 92 ; 30 Vt. 307 ; 19 Mo. 467. 
 
 .TRUCE. In International La-w. An 
 
 agreement between belligerent parties by 
 which they mutually engage to forbear all 
 acts of hostility against each other for some 
 time, the war still continuing. Burlamaqui, 
 N. & P. Law, pt. 4, c. 11, § 1. 
 
 Truces are of several kinds : general, ex- 
 tending toall the territories and dominions of 
 both parties ; and particular, restrained to 
 particular places : as, for example, by sea, 
 and not by land, etc. Id. part 4, c. 11, § 5. 
 They are also absolute, indeterminate, and 
 general; or limited and determined to certain 
 things : for example, to bury the dead. lb. 
 idem. See 1 Kent, 159; Halleck,' Int. Law, 
 654 ; Wheaton. lilt. Law, 682. 
 
 During the continuance of a truce, 
 either party may do within his own territory 
 or the limits prescribed by the armistice, 
 whatever he could do in time of peace, e, g. 
 levy and march troops, collect provisions, re- 
 ceive reinforcements from his allies, or repair 
 the fortifications of a place not actually be- 
 sieged ; but neither party can do what the 
 continuance of hostilities would have pre- 
 vented him from doing, e. g., repair forti- 
 fications of a besieged place ; and all things, 
 the possession of which was especially con- 
 tested when the truce was made, must remain 
 in their antecedent places ; Vattel, Dr. des 
 Gens. §§ 245, 251 ; Boyd's Wheat. Int. Law, 
 §403. 
 
 TRnCE OE GOD (Law L. treuza Dei; 
 Sax. treuge or trewa, from Germ, treu; Fr. 
 trioe de Dieu). In the middle ages, a limi- 
 tation of the right of private warfare intro- 
 duced by the church. This truce provided 
 that hostilities should gease on holidays, from 
 Thursday evening to Sunday eyening of each 
 week, the whole season of Advent and Lent, 
 and the octaves of great festivals. The pen- 
 alty for breach of the truce was excommuni- 
 cation. The protection of this truce was also 
 extended constantly to certain places, as, 
 cliurehes, convents, hospitals, etc., and cer- 
 tain persons, as, clergymen, peasants in the 
 field, crusaders, and, in general, all defence- 
 less persons. It was first introduced into 
 Acquitaine in 1041, and into England under 
 Edward the Confessor. 1 Rob. Charles V. 
 App. n. xxi. 
 
 TRUE BILL. In Practice. Words in- 
 dorsed on a bill of indictment when a grand 
 jury, after having heard the witnesses for the 
 government, are of opinion that there is suffi- 
 cient cause to put the dei^endant on his trial. 
 Formerly the indorsement was Billa vera 
 when legal proceedings were in Latin ; it is 
 still the practice to write on the back of the 
 bill Ignoramus when the jury do not find it 
 Vol. II.-48 
 
 to be a true bill ; the better opinion is that 
 the omission of the words a true bill does not 
 vitiate an indictment ; 11 Cush. 473; IS N. 
 H. 488. See 5 Me. 432 ; Geand Jury. 
 
 TRUST. A right of property, real or 
 personal, held by one party for the benefit of 
 another. 
 
 A trust is merely what a use was before the 
 statute of uses. It is an interest resting in 
 conscience and equity, and the same rules ap- 
 ply to trusts in chancery now which were for- 
 merly applied to uses; 10 Johns. 506. A 
 trust is a use not executed under the statute 
 of Hen. VIII.; 3 Md. 505. The words use 
 and trust are frequently used indifferently ; 
 see 3 Jarm. Wills, 531. 
 
 The party holding is called the trustee, and the 
 party for whose benefit the right is held is called 
 the cestui que trust, or, using a better term, the 
 henefleiary. 
 
 Sometimes the equitable title of the benefi- 
 ciary, sometimes the obligation of the trustee, 
 and, again, the right held, is called the trust. 
 
 But the right of the beneficiary is in the trust ; 
 the obligation of the trustee results from the 
 trust ; and the right held is the stutjeet-matter of 
 the trust. Neither of them is the trust itself. 
 All together they constitute the trust. 
 
 An equitable right, title, or interest in pro- 
 perty, real or personal, distinct from its legal 
 ownership. 
 
 A personal obligation for paying, deliver- 
 ing, or performing any thing where the person 
 trusting has no real right or security, for by 
 that act he confides altogether to the faithful- 
 ness of those intrusted. 
 
 An obligation upon a person, arising out of 
 a confidence reposed in him, to apply pro- 
 perty faithfully and according to such confi- 
 dence ; 4 Kent, 295 ; 2 Fonbl. Bq. 1 ; 1 
 Saunders, Uses and Tr. 6 ; Cooper, Eq. PI. 
 Introd. 27 ; 3 Bla. Com. 431. 
 
 The Boman fldei-eommissa were, under tlie 
 name of uses, first introduced by the cleTO' into 
 England in the reign of Kichard II. or Edward 
 III., and while perseveringly prohibited by the 
 clergy and wholly discountenanced by the courts 
 of common law, they grew into public favor, 
 and gradually developed into something like a 
 regular branch of law, as the court of chancery 
 rose into importance and power. For a long 
 time the beneficiary, or cestui que trust, was with- 
 out adequate protection ; but the statute of uses, 
 passed in 37 Henry VIII., gave adequate protec- 
 tion to the interests of the cestui que trust. Prior 
 to this statute the terms use and trust were used, 
 if not indiscriminately, at least without accurate 
 distinction between tliem. The distinction, so 
 far as there was one, was between passive uses, 
 where the feoffee had no active duties imposed 
 on him, and active trusts, where the feoflfee had 
 something to do in connection with the estate. 
 The statute of uses sought to unite the seisin 
 with the use, malting no distinction between uses 
 and trusts, the result being that, by a strict con- 
 struction, both, uses and trusts were finally talien 
 out of its intended operation and were both in- 
 cluded under the term trust. The statute was 
 passed in 1.538 ; but trusts did not become settled 
 on their present basis till Lord Nottingham's 
 time, in 1676 ; 3 Wash. K. P. Index, Trust ; 1 
 Greenl. Cruise, Dig. 338. 
 
TRUST 
 
 754 
 
 TRUST 
 
 A late writer shows clearly the distinction be- 
 tween the JIdei commissa and a trust, that In 
 the former there was no separation of the equi- 
 table and legal title, but there was simply a 
 request, which afterwards became a duty im- 
 posed upon the gravaius to convey the inherit- 
 ance to another person, either immediately or 
 after a certain event ; whereas, in the trust, the 
 perfect ownership is decomposed into its consti- 
 tuent elements of legal title and beneficial inte- 
 rest, which are vested in different persons at the 
 same time. Besides the fldei commissa arose out 
 of testamentary dispositions ; whereas English 
 trusts, until the statute of Wills, were created 
 only by conveyances inter vivos; Blsp. Eq. § 
 SO ; see 15 How, 367. 
 
 Active or special trusts are those in which 
 the trustee has some duty to perform, so that 
 the legal estate must remain in him or the 
 trust be defeated. 
 
 Express trusts are those which are created 
 in express terms in the deed, writing, or 
 will. The terms to create an express trust 
 will be sufficient if it can be fairly collected 
 upon the face of the instrument that a trust 
 was intended. Express trusts are usually 
 found in preliminary sealed agreements, such 
 as marriage articles, or articles for the pur- 
 chase of land ; in formal conveyances, such 
 as marriage settlements, terms for years, 
 mortgages, assignments for the payment of 
 debts, raising portions, or other purposes ; 
 and in wills and testaments, when the be- 
 quests involve fiduciary interests for private 
 benefit or public charity. They may be 
 created even by parol ; 6 W. & S- 97 ; ex- 
 cept so far as forbidden by the Statute of 
 Frauds. 
 
 Implied trusts are those which, without 
 being expressed, are deducible from the na- 
 ture of the transaction as matters of intent, 
 or which are superinduced upon the transac- 
 tion by operation of law, as matters of equity, 
 I independently of the particular intention of 
 the parties. The term is used in this general 
 sense, including constructive and resulting 
 trusts {q. v.), and also in a more restricted 
 sense, excluding those classes. 
 
 Constructive trusts are those which arise 
 purely by construction of equity, and are 
 entirely independent of any actual or pre- 
 sumed intention of the parties. Such trusts 
 have not, technically, any element of fraud 
 in them ; Bisp. Eq. § 91. Under this branch 
 of trusts it has been said that " wherever one 
 person is placed in such relation to another, 
 by the act or consent of that other, or the 
 act of a third person, or the law, that he be- 
 comes interested for him, or interested with 
 him in any subject of property or business, 
 he is prohibited from acquiring rights in that 
 subject antagonistic to the person with whose 
 interest he has become associated." Note 
 by Judge Hare to 1 Lead. Cas. Eq. 62. 
 The rule as to such trusts applies not only to 
 persons standing in a direct fiduciary position 
 towards others, such as trustees, attorneys, 
 etc., but also to those who occupy any posi- 
 tion out of which a similar duty ought in 
 equity and good morals to arise : as against 
 
 partners (4 Seld. 236) ; tenants in common 
 (72 Penn. 442) ; mortgagees (43 Mo. 231), 
 etc.; Bisp. Eq. § 93. 
 
 A trustee virho buys at his own sale, even 
 if public, will still be considered, at the option 
 of the cestui que trust, a trustee ; seel Lead. 
 Cas. Eq. 248. This is not upon the ground 
 of fraud, but of public policy; see 13 Allen, 
 419. So if a person obtains from a trustee 
 trust property without paying value for it, 
 although without notice of the trust, he will 
 in such case be held a trustee by construction; 
 Bisp. Eq. 8 95. . And in case of a contract 
 for the sale of land, equity considers the 
 vendor as a trustee of the legal title for the 
 purchaser; ibid. 
 
 Implied trusts do not come within the 
 Statute of Frauds ; 66 Penn. 237. 
 
 A passive or dry or simple trust is one 
 which requires the performance of no duty 
 by the trustee to carry out the trust, but by 
 force of which the mere legal title rests in 
 the trustee. 
 
 As to executory and executed trusts, see 
 those titles. 
 
 Trusts may also be distinguished as public 
 ajiAprivate trusts. The former are constituted 
 for the benefit either of the public at large or 
 some particular portion of it answering to a 
 particular description ; while the latter are 
 those wherein the beneficial interest is vested 
 absolutely in one or more individuals who 
 are, or may be within a certain time, de- 
 finitely ascertained. Bisp. Eq. § 59. 
 
 A trust arises when property has been con- 
 ferred upon one person and accepted by him 
 for the benefit of another. The former is a 
 trustee, and holds the legal title, and the 
 latter is called the cestui que trust, or bene- 
 ficiary. In order to originate a trust, two 
 things are essential, — Jirst, that the owner- 
 ship conferred be connected with a right, or 
 interest, or duty for the benefit of another ; 
 and, second, that the property be accepted on 
 these conditions. 
 
 The modern trust includes not only those 
 technical uses which were not executed by 
 the Statute of Uses, but also equitable inte- 
 rests whiqh never were considered uses, and 
 did not therefore fall within the provisions of 
 this statute. These equitable interests, in 
 common with the unexecuted uses, received 
 the name of trusts ; Bisp. Eq. § 52 ; see 7 
 De G. M. & G. 422. The Statute of Uses 
 provided that where one was seized to the 
 use of another, the cestui que use should be 
 deemed to be in lawful seizin and possession 
 of the same estate in the land itself as he had 
 in the use ; ibid. 
 
 A trust which at the time of its creation is 
 a passive trust will be executed by this stat- 
 ute, although the word trust instead of use 
 is employed. But wherp a trust which has 
 once been active becomes passive, such a 
 trust is not necessarily executed by the stat- 
 ute. If the mere fact that the trustee had 
 active duties to perform was the only circum- 
 stance that prevented the statute from ope- 
 
TRUST 
 
 7S5 
 
 TRUSTEE 
 
 rating, the trust -will be executed when the 
 active duties ha-ve ceased. But if the non- 
 execution of the trust by the statute did not 
 originally and solely depend upon the activity 
 of the trust, the fact that the trust has ceased 
 to be active will not of itself cause the stat- 
 ute to apply ; but the trustee is then bound 
 to convey the legal estate at the request of 
 the cestui que trust; and after a great lapse 
 of time, and in support of long-continued 
 possession on the part of the person holding 
 the beneficial interest, such a conveyance 
 will be presumed; Bisp. Eq. § 55. 
 
 In Pennsylvania the courts have regarded 
 some trusts not to be active which in Eng- 
 land would have been considered active, and 
 have held (59 Penn. 396) that whenever the 
 entire beneficial interest is in the cestui que 
 trust, there is no reason why the trust should 
 not be considered as actually executed. No 
 formal conveyance to him is necessary, though 
 it will be decreed in order to dissipate a use- 
 less cldud upon the title. These subjects have 
 of late years been very frequently investigated 
 in that state. See Bisp. Eq.; Husb. Marr. 
 Women. 
 
 When active duties are to be performed by 
 the trustee, they will, generally, not be exe- 
 cuted; Bisp. Eq. § 56; 6 Wall. 119, 168; 
 though when there was a separate use for a 
 feme sole not in contemplation of marriage, 
 it was held that as this separate use was void, 
 the trust fell, although the trustee had active 
 duties to perform; 70 Penn. 201. 
 
 Before the Statute of Frauds, 29 Car. II. 
 c. 3, §§ 7, 9, a trust, either in regard to real 
 or personal estate, might have been created 
 by parol as well as by writing. The statute 
 required all trusts as to real estate to be in 
 writing; 4 Kent, 305; Adams, Eq. 27; 5 
 Johns. 1 ; 15 Vt. 525. 
 
 No particular form of words is requisite to 
 create a trust. The court will determine the 
 intent from the general scope of the lan- 
 guage; 10 Johns. 496; 4 Kent, 305. 
 
 The facts, however, to warrant the infer-' 
 ence of a trust, must be more than loose and 
 general declarations ; but, on the other hand, 
 parol declarations will not be received to con- 
 tradict the inference of a trust in land fairly 
 deducible from written declarations; 5 Johns. 
 Ch. 2. 
 
 A trust, as to personal property, may be 
 proved by parol evidence ; 1 Bail. Ch. So. C. 
 510; 1 Hare, 158; Adams, Eq. 28; 3 Bla. 
 Com. 431. A cestui que trust cannot, gene- 
 rally, hold the beneficial enjoj^ment of prop- 
 erty free from the rights of his creditors ; • 1 
 Sm. L. C. 119; though a limitation over to 
 another in case of the insolvency of the cestui 
 que trust, is valid; Bisp. Eq. 61; 5 Wall. 
 441. But in Pennsylvania it is settled that 
 the interest of the cestui que trust may be ex- 
 empted from liability for his debts ; 2 Rawle, 
 33 ; 7 W. & S. 19 ; 86 Penn. 276 ; see, also, 
 21 Conn. 8; 11 Gratt. 570; 42 Mo. 45; 
 Bisp. Eq. § 61 ; 91 U. S. 716. 
 
 If a trustee dies, or fails or refuses to exe- 
 
 cute or accept the trust, or no trustee is 
 named, the trust does not for that reason fail. 
 It is a settled rule that the court of chancery 
 will provide a trustee or attend to the execu- 
 tion of the trust; 2 Vern. 97; 4 Ves. Ch. 
 108 ; 10 Sim. 256 ; Adams, Eq. 36. 
 
 Trusts are interpreted by the ordinary 
 rules of law, unless the contrary is expressed 
 in the language of the trust ; 15 Ind. 269 ; 3 
 Des. 256. Most of the states have special 
 legislation upon the subject, making the sys- 
 tems of the different states too various for 
 fuller development here. 
 
 The rules for the devolution of equitable 
 estates are the same as those for thei descent 
 of legal titles ; and fall under the operation 
 of the various intestate acts ; Bisp. Eq. § 
 60. If the legal title to real estate cannot be 
 taken by an alien, the beneficial ownership 
 cannot be enjoyed by him ; 1 Beav. 79 ; 5 
 How. 270. In some states, as New York, 
 Michigan, and Louisiana, the operation of 
 trusts has been much narrowed ; Bisp. Eq. § 
 56. 
 
 See 4 Kent, 290-295; Hill, Trustees; 
 Lewin, Perry, Trusts ; Greenleaf, Cruise, 
 Dig. ; Washburn, Real Prop. ; Story, Eq. 
 Jur. ; Spence, Eq. Jur. ; Adams, Bispham, 
 Eq. ; Executed Trusts ; Executouv 
 Trusts; Precatory Words ; Resulting 
 Trusts ; Trustee. 
 
 TRUSTEE. A person in whom some 
 estate, interest, or power in or aflecting pro- 
 perty of any description is vested for the 
 benefit of another. 
 
 One to whom property has been conveyed 
 to be held or managed for another. 
 
 To a certain extent, executors, administra- 
 tors, guardians, and assignees are trustees, 
 and the law of trusts so far is applicable to 
 them in their capacity of trustees ; Hill, 
 Trust. 49. 
 
 Trusts are not strictly cognizable at com- 
 mon law, but solely in equity ; 1 6 Pet. 25. 
 
 Any reasonable being may be a trustee. 
 The United States or a state may be a trus- 
 tee; 15 How. 367. So may a corporation ; 
 7 Wall. 1 ; Perry, Trusts, § 42. 
 
 A trustee after having accepted a trust 
 cannot discharge himself of his trust or re- 
 sponsibility by resignation or a refusal to per- 
 form the duties of the trust ; but he must pro- 
 cure his discharge either by virtue of the pro- 
 visions of the instrument of his appointment, 
 or by the consent of all interested, or by an 
 order of a competent court ; 4 Kent, 311; 11 
 Paige, Ch. 314. 
 
 Trustees are not allowed to speculate with 
 the trust-property, or to retain any profits 
 made by the use of the same, or to become 
 the purchasers upon its sale._ See Trust. 
 If beneficial to the parties in interest, the 
 purchase by the trustee may be retained or 
 confirmed by the court. And the trustee may 
 be compelled to account for and pay over to 
 the cestui que trust all profits made by any 
 use of the trust property ; 4 Kent, 438 ; 2 
 Johns. Ch. 252 ; 4 How. 603. 
 
TRUSTEE 
 
 756 
 
 TRUSTEE 
 
 A court of equity never allows a trust to 
 fail for want of a trustee ; 5 Paige, Ch. 46 ; 
 6 Whart. 671 ; 5 B. Monr. 113 ; 2 How. 188. 
 Whenever it becomes necessary, tlie court 
 will appoint a new trustee, and this though 
 the instrument creating the trust contain no 
 power for making such appointment. The 
 power is inherent in the court ; 7 Ves. Ch. 
 480; 2 Sandf. Ch. 336 ; 1 Beav. 467. So 
 the court may create a new trustee on the 
 resignation of the former trustee ; 1 1 Paige, 
 Ch. 314 ; 3 Barb. Ch. 76 ; Hill, Trust. 190. 
 The mere naming a person trustee does 
 not constitute him such. There must be an 
 acceptance, express or implied. See 14 Wall. 
 139. But if the person named trustee does 
 not wish to be held responsible as such, he 
 should, before meddling with the duties of a 
 trustee, formally disclaim the trust ; 7 Gill & 
 J. 157 ; 1 Pick. 370 ; Hill, Trust. 214. 
 
 Ordinarily, no writing is necessary to con- 
 stitute the acceptance of even a trust in writ- 
 ing ; 12 N. H. 432. 
 
 The duties of trustees have been said, in 
 general terms, to be ; "to protect and pre- 
 serve the trust property, and to see that it is 
 employed solely for the benefit of the cestui 
 que trust." Bisp. Eq. § 138. i 
 
 He must take possession of the trust pro- 
 perty, and call in debts, and convert such 
 securities as ai"e not legal investments. Per- 
 sonal securities are not legal investments al- 
 though the investment was made by the testa- 
 tor himself; 40 N. Y. 76; 18 Penn. 303 ; 
 unless, by the terms of the trust, they are 
 allowed; Bisp. Eq. §139. 
 
 He will not be liable for the failure of a 
 bank in which he has deposited trust funds, 
 unless he has permitted them to be there for 
 an unreasonable length of time ; 29 Beav. 
 211 ; but he must not mix them with his own 
 funds; 8 Penn. 431; 41 Ala. 709. 
 
 A trustee should not invest trust funds in 
 trade or speculation ; nor in bank stock, or 
 stock of public companies ; 4 Barb. 626 ; 18 
 Penn. 303 ; but see 9 Pick. 446 ; he may in- 
 vest in mortgages. 
 
 A recent writer has deduced the following 
 rules as to investments by trustees (see 13 Am. 
 L. Reg. N. s. 210). Where there is no ex- 
 press power of sale in the instrument creat- 
 ing a trust, and none is necessarily implied, 
 and the discretion of the trustee is the sole re- 
 striction upon investments, he will generally 
 be protected where he has acted bona fide 
 and with reasonable diligence and prudence. 
 But in a state where the trustee is protected 
 from loss which may arise from certain speci7 
 fied and so-called legal investments, the rule 
 is much more stringent, and extraordinary 
 care and diligence are required of the trustee as 
 well as bona fides, and it is dangerous to in- 
 vest trust funds in any other securities than 
 those thus indicated. 
 
 But where there is no express power of 
 sale given, and where none such can neces- 
 sarily be implied from the nature of the trus- 
 tee's duties, the only safe means of changing 
 
 an insecure investment left so by the creator 
 of the trust, is to make the change under the 
 (Jireetion of the proper court, and if done 
 without such authority, the trustee will be 
 liable to the cestui que trust for breach of trust. 
 
 Where there is no such power of sale and 
 the trustee leaves unchanged an investment 
 made by the testator and loss ensues, he will 
 generally be protected if acting with bona 
 fides, even in cases where, if there had been 
 a power of sale and he had neglected to sell, 
 he would have been liable under the first rule 
 laid down above. 
 
 The ofiSce and duties of trustees being mat- 
 ters of personal confidence, they are not 
 allowed to delegate these powers unless such a 
 power is expressly given by the authority 
 by which they were created ; and where one 
 of several trustees dies, the trust, as a gene- 
 ral rule, in the United States, will devolve 
 on the survivor, and not on the heirs of the 
 deceased; Hill, Trust. 175 ; 2 Moll. 276 ; 
 
 3 Mer. 412 ; 11 Paige, Ch. 314 ; but a trus- 
 tee may appoint an agent where it is usual to 
 do so in the ordinary course of business ; 10 
 Penn. 285 ; 8 Cow. 543. 
 
 While the law allows any person named as 
 trustee to disclaim or renounce, he cannot, if 
 he has by any means accepted and entered 
 upon the trust, rid himself of the duties and 
 responsibilitis after such acceptance, except 
 by a legal discharge by competent authority ; 
 
 4 Johns. Ch. 136; 11 Paige, Ch. 314; 1 
 My. & K. 195. 
 
 The trustee is in law generally regarded as 
 the owner of the property, whether the same 
 be real or personal ; Hill, Trust. 229.- Yet 
 this rule is subject to material qualifications 
 when taken in connection with the doctrines 
 of powers and uses, and the legislation of the 
 several states ; 2 Atk. 223; 1 How. 134; 4 
 Kent, 321 ; Cruise, Dig. tit. 12, c. 1, §26; 
 Sued. Pow. 174; Hill, Trust. 229-239. 
 
 The quality and continuance of the estate 
 of a trustee will be determined by the pur- 
 pose and exigency of the trust, rather than 
 by the phraseology employed in the descrip- 
 tion of the estate conveyed ; and, therefore, 
 if the language be that the estate goes to the 
 trustee and his heirs, it may be limited to a 
 shorter period if thereby the purposes of the 
 creation of the trust are satisfied ; 8 Hare, 
 166 ; 4 Denio, 386 ; 2 Exch. 593 ; 11 B. 
 Monr. 233. 
 
 Where there are several trustees, they are 
 considered to hold as joint-tenants, and on the 
 death of any one the property remains vested 
 in the survivor or survivors ; and on the 
 death of the last, the property, if personal (at 
 common law), went to the heir or personal 
 representative of the last-deceased trustee. 
 But the rule as to trust-property going to 
 heirs and executors is changed in most of the 
 states, so that in theory the court of chancery 
 assumes the control and it appoints a new 
 trustee on the decease of former trustees; 
 13 Sim. 91 ; 4 Kent, 311 ; 11 Paige, Ch. IS ; 
 10 Mo. 766; 16 Ves. Ch. 27. 
 
TRUSTEE PROCESS 
 
 757 
 
 TUMBREL 
 
 Each trustee has equal interest in and con- 
 trol over the trust estate ; and hence, as a 
 general rule, they cannot (as executors may) 
 act or bind the trust separately, but must act 
 jointly ; 4 Ves. Ch. 97 ; 3 Ark. 384 ; 8 Cow. 
 644; 20 Me. 504; 11 Barb. 527. 
 
 A trustee is, generally, not responsible for 
 the conduct of his co-trustee ; see 2 Lead. 
 Gas. Eq. 858, 865 ; where several trustees 
 join in a receipt, primd facie, all will be con- 
 sidered to have received the money, but one 
 of them may show that he did not in fact re- 
 ceive the money, but joined in the receipt for 
 conformity ; Bisp. Eq. § 146. A trustee 
 who stands by and sees a fraud on the trust 
 committed by his co-trustee, will be held re- 
 sponsible for' it ; 17 Penn. 268. 
 
 A trustee may come into equity to obtain 
 advice and assistance in the execution of his 
 trust ; Hill, Trust. 298. 
 
 One trustee may be held responsible for 
 losses which he has enabled a co-trustee to 
 cause, though there was no actual participa- 
 tion by him ; 18 Ohio, 509 ; 5 How. 233 ; 10 
 Penn. 149 ; 3 Sandf. Ch- 99. 
 
 Where the legal estate is vested in trustees, 
 all actions at law relative to the trust-property 
 must be brought in their name, but the trus- 
 tee must not exercise his legal powers to the 
 prejudice of a cestui que trust, and third per- 
 sons must take notice of this limitation of the 
 legal rights of a trustee ; 2 Vern. 197 ; Hill, 
 Trust. 503. 
 
 Where there are several trustees, all must 
 concur in any business of the trust ; other- 
 wise if it be a public trust, where the acts of 
 a majority are binding; Bisp. Eq. § 147. 
 
 The trustee (and also his personal repre- 
 sentatives to the extent of any property re- 
 ceived from the trustee) is responsible in suit 
 for any breach of trust, and will be com- 
 pelled to compensate what his negligence has 
 lost of the trust estate. He is not only charge- 
 able with the principal and income of the trust- 
 property he has received, but is liable for an 
 amount equal to what, with good manage- 
 ment, he might have received ; and this in- 
 cludes interest on a sum he has needlessly 
 allowed to remain where it earned no interest ; 
 11 Ves. Ch. 60; 2 Beav. 430; 4 Russ. 195; 
 2 Johns. Ch. 62 ; 1 Bradf. Surr. 325. 
 
 See Commissions ; Tud. L. Cas. R. P. 
 497 (trusts for accumulation); 49 N. Y. 76 (as 
 to investment in government bonds and real 
 estate) ; also an article on Trustees as Tort- 
 feasors, in 14 Am. L. Rev. 36, and 15 id. 159. 
 
 TRUSTEE PROCESS. A means of 
 reaching goods, property, and credits of a 
 debtor in the hands of third persons, for the 
 benefit of an attaching creditor. 
 
 It Is a process, so called, in the New England 
 states, and similar to the garnishee process of 
 others. It is a process given by statute 15 of the 
 statutes of Massachusetts. All goods, effects, 
 and credits so intrusted or deposited in the hands 
 of others that the same cannot be attached by 
 ordinary process of law, may by an original writ 
 or process, the form of which is given by the 
 statute, be attached in whose hands orposBesBion 
 
 soever they may be found, and they shall, from 
 the service of the writ, stand bound and be held 
 to satisfy such judgment as the plaintiff may re- 
 cover against the principal defendant : Cushine, 
 Trustee Pr. 2. 
 
 The trustees on sueing out and service of the 
 process, according to statute, and its entry in 
 court, may come into court and be examined on 
 oath as to property of the principal in their 
 hands. If the plaintiff recovers against the 
 principal, and there are any trustees who have 
 not discharged themselves under oath, he shall 
 have execution against them ; Gushing, Trustee 
 Pr. 4 ; 2 Kent, 497, n. 
 
 TRUTH. The actual state of things. 
 
 In giving his testimony, a witness is re- 
 quired to tell the truth, the whole truth, and 
 nothing but the truth ; for the object in the 
 examination of matters of fact is to ascertain 
 truth. 
 
 In actions for slander and libel, the truth 
 of the statements may be given in evidence 
 in some cases. The matter has been made 
 the subject of statutory regulation. See 
 Heard, Libel & S. ; LiBel. 
 
 TUB. In Mercantile Iia-w. A measure 
 containing sixty pounds of tea, and from 
 fifty-six to eighty-six pounds of camphor. 
 Jacob, Law Diet. 
 
 TUB-MAN. In English Law. A bar- 
 rister who has a pre-audience in the exche- 
 quer, and also one who has a particular place 
 in court, is so called. 
 
 TUG. A steam vessel built for towing ; 
 practically synonymous with towioat. Tugs 
 are subject to the ordinary rules of naviga^ 
 tion touching collisions. Where a schooner 
 was being towed by a tug lashed to her port 
 side, the fact that th^ schooner had a pilot on 
 board, did not make the tug the mere servant 
 of the schooner, so as to exempt the tug from 
 responsibility; 11 Fed. Rep. 319; 93 U. S. 
 302. 
 
 As to whether tugs are common carriers, 
 see Lawson, Contr. of Carriers, p. 3, n. ; 
 
 TOWBOAT. 
 
 TUMBREL. An instrument of punish- 
 ment made use of by the Saxons, chiefly for 
 the correction of scolding women by ducking 
 them in water, consisting of a stool or chaii; 
 fixed to the end of a long pole. 
 
 In Domesday it is called cathedra stercoris, and 
 is described as cathedra in quo rixosc muUeres 
 sedmtes aquis demergebantur, and seems to be no 
 other than what has more recently been called a 
 ducking or cucking stool. Bracton writes it 
 tymborella, of which perhaps tumbrel is a cor- 
 ruption. It was sometimes also called a tre- 
 bucket, from the stool or bucket in which the 
 prisoner was placed when put down into the 
 water being fixed to the end of a tree or piece of 
 timber. Lord Coke, however, says it properly 
 signifies a dung-cart, and that every lord of a 
 leet or market ought to have a pillory and tum- 
 brel, and that the leet could be forfeited for the 
 want of either. 
 
 This antique punishment was also Inflicted 
 upon bakers, brewers, and other transgressors of 
 the sumptuary laws, who were placed upon such 
 a stool and immerged in stercore — that is, in 
 filthy water. By a statute of Henry III., in the 
 year 1250, entitled the statute of the pillory and 
 
TUMULTUOUS PETITIONING 758 
 
 TURNPIKE-ROAD 
 
 tumbrel, a baker or brewer offending against the 
 assize of bread or of malt sball suffer bodily 
 punishment ; that is, a baker in the pillory and 
 a brewer to the tumbrel, pistor patiatier colliatri- 
 giirni braciatrix tvebticetw/n. 
 
 The last attempt on record, by legal process, 
 seems to have been on the 37th of April, 1745, of 
 which we find the following account in the Lon- 
 don Evening Post of that day. " Last week a 
 Voman thatkeeps the Queen's Head alehouse, at 
 Kingston in Surrey, was ordered by the court to 
 be ducked for scolding, and- was accordingly 
 placed in a chair and ducked in the river Thames, 
 under Kingston bridge, in the presence of two 
 thousand or three thousand people." The stat- 
 ute authorizing such punishments' was finally re- 
 pealed by a statute of 1 Vict., in 1837. 
 
 TUMULTUOUS PETITIONING. Un- 
 der Stat. 13 Car. 11., st. 1, c. 5, this was a 
 misdemeanor, and consisted in more than 
 twenty persons signing any petition to the 
 crown or cither house of parliament for the 
 alteration of matters established by law in 
 church or state, unless the contents thereof 
 had been approved by tbree justices, or the 
 majority of the grand jury at assizes or quarter 
 sessions. No petition could be delivered by 
 more than ten persons. 4 Bla. Com. 147 ; 
 Moz. & W. 
 
 TUN. A measure of wine or oil, contain- 
 ing four hogsheads. 
 
 TUNGREVE (Sax. tungaraeva, i. e. villce 
 prceposiius). A reeve or bailiff. Spelman, 
 Gloss.; Cowel. 
 
 One who in estates, which we call manors, 
 sustains the character of master, and in his 
 stead disposes and arranges every thing. Qui 
 in villis (^quce dicimus maneriis) domini per- 
 sonam sustinet, ejusque vice omnia disponit 
 atque moderatur. 
 
 TURBARV. In English Law. A right 
 to dig turf; an easement. 
 
 TURN or TOURN. See Sheriff's 
 
 TOUKN. 
 
 TURNED TO A RIGHT. This phrase 
 means that a person whose estate \a divested 
 by usurpation cannot expel the possessor by 
 mere entry, but must have recourse to an 
 action, either possessory or droitural; 3 Steph. 
 Com. 390, n.; 3 Bla. Com. 191 ; Moz. 
 & W. 
 
 TURNKE7. A person under the super- 
 intendence of a jailer, whose employment is 
 to open and fasten the prison-doors and to 
 prevent the prisoners from escaping. 
 
 It is his duty to use due diligence ; and he 
 may be punished for gross neglect or wilful 
 misconduct in permitting prisoners to escape. 
 
 TURNPIKE. A gate set across a road, 
 to stop travellers and carriages until toll is 
 paid for passage thereon. In the United 
 States, turnpike-roads are often called turn- 
 pikes : just as mail-coach, hackney-coaob, 
 stage-coach, are shortened to mail, hack, and 
 stage. Encyc. Am. See Turnpike Road. 
 
 TURNPIKE-ROAD.. A road or high- 
 way over which the public have the right to 
 travel upon payment of toll, and on which 
 
 the parties entitled to such toll have the 
 right to erect gates and bars to insure its 
 payment. 6 M. & W. 428 ; 1 Railw. Gas. 
 665 ; 22 E. L. & E. 113 ; 16 Pick. 175. 
 
 Turnpike-roads are usually made by corpo- 
 rations under legislative authority ; and, the 
 roads being' deemed a public use, such corpo- 
 rations are usually armed with the power to 
 take private property for their construction, 
 upon making just compensation. In the exe- 
 cution of this power, they are bound to a 
 strict compliance with the terms upon which 
 it is given, and are subject to the rules which 
 govern the exercise of the right of eminent 
 domain under the constitutions of the several 
 states ; 7 Dana, 81 ; 3 Humphr. 456 ; 6 Ohio, 
 15; lOtrf. 396; 25Penn. 229; ISGa. 607; 
 
 19 id. 427. In estimating the damages to be 
 awarded for lands taken for a turnpike-road, 
 the rule is to allow the value of the land and 
 its improvements, deducting therefrom the 
 benefits from the road and the additional 
 value given by it to the remaining property ; 
 
 20 Penn. 91. The legislature may authorize 
 the conversion of an existing highway into 
 a turnpike-road; 11 Vt. 198; 18 Conn. 32; 
 3 Barb. 159; 4 Humphr. 467; without 
 any pecuniary equivalent to the owner of the 
 fee, such road still remaining a public high- 
 way ; 2 Ohio St. 419. Under the power to 
 take land for this purpose, the corporation 
 may take land for a toll-house and a cellar 
 under it and a well for the use of the family 
 of the toll-keeper; 9 Pick. 109. A turn- 
 pike road being a highway, any obstruction 
 placed thereon renders the author of it liable 
 as for a public nuisance; 16 Pick. 175; 8 
 Wend. 555. 
 
 Turnpike companies, so long as they con- 
 tinue to take toll, are bound to use ordinary 
 care in keeping their roads in suitable repair, 
 and for any neglect of this duty are liable to 
 action on the case for the damages to any per- 
 son specially injured thereby ; 6 Johns. 90 ; 
 7 Conn. 86 ; 11 "Wend. 597 ; 11 Ohio, 197 ; 
 6 N. H. 147; 10 Pick. 35; 9 Penn. 20; 
 5 Ind. 286; 11 Vt. 531; 24 id. 480 ; 1 
 Spencer, 323 ; and to an indictment on the 
 part of the public ; 11 "Wend. 597 ; lOYerg. 
 525 ; 4 Ired. 16 ; 10 Humphr. 97 ; 26 Ala. 
 N. 8. 88,; 1 Harr. N. J. 222; 9 Barb. 161 ; 
 2 Gray, 58. 
 
 The law of travel upon turnpike-roads is 
 the same as upon ordinary roads, except as 
 regards the payment of tolls. If there be 
 any ambiguity in tbe authority granted to a 
 turnpike company to take toll, it will be con- 
 strued rather m favor of the public than of 
 the grantee : 2 B. & Ad. 792 ; 2 Mann. & 
 G. 134. Travellers are liable for toll though 
 they avoid the gates ; 2 Boot, 524 ; 10 "Vt. 
 197; but not for travel between the gates 
 without passing the same ; 2 B. Monr. 80 ; 
 10 Ired. 30; 11 Vt. 381. Exemptions from 
 toll are construed most liberally m favor of 
 the community ; Ana. Highw. § 369. 
 
 A road or turnpike laid out by an individual 
 or by the selectmen of the town to facilitate 
 
TURPIS CAUSA 
 
 769 
 
 TYBUKN TICKET 
 
 the evasion of toll by travellers upon a turn- 
 pOce-road will entitle the turnpike company 
 to an action on the case for the damages, or 
 to an injunction ordering the same to be 
 closed; 10 N. H. 133 ; 18 Conn. 451; 8 
 Humphr. 286; 1 Johns. Ch. .S15 ; 12 Barb. 
 553. And see 4 Johns. Ch. 150. And such 
 company is entitled to compensation for the 
 injury to their franchise by a highway which 
 intersects their road at two distinct points 
 and thereby enables travellers to evade the 
 payment of tolls, though such highway be 
 regularly established- by the proper authori- 
 ties to meet the necessities of public travel; 
 1 Barb. 286. But see 2 N. H. 199 ; 10 id. 
 133 ; 12 La. An. 649. 
 
 If a turnpike company abuses its powers, 
 or fails to comply with the terms of its char- 
 ter, it is liable to be proceeded against by. quo 
 warranto for the forfeiture of its franchise ; 
 23 Wend. 193, 223, 254; 1 Zabr. 9; 2 
 Swan, 282. 
 
 TURPIS CAUSA (Lat.). A base or 
 vile consideration, forbidden by law, which 
 makes the contract void : as, a contract the 
 consideration of which is the future illegal 
 cohabitation of the obligee with the obligor. 
 
 TURPITUDE (Lat. turpitudo, from turpis, 
 base). Every thing done contrary to justice, 
 honesty, modesty, or good morals, is said to 
 be done with turpitude. 
 
 TUTELA (Lat.). A power given by the 
 civil law over a free person to defend him 
 when by reason of his age he is unable to 
 defend himself. Women by the civil law 
 could only be tutors of their own children. 
 A child under the power of his father was 
 not subject to tutelage, because not a free 
 person, caput liberum. D. lib. 26, tit. 1, S. 
 de tutelis ; Inst. lib. 1, tit. 13, de tutelis ; 
 Inst. lib. 3, tit. 28, de ohligationibus quce ex 
 quasi cont. nascuntur. Novellas, 72. 94. 155. 
 118. 
 
 Legitima tutela was where the tutor was 
 appointed by the magistrate. Leg. 1, D. ff. 
 de leg. tut. 
 
 Testamenta7-ia tutela was where the tutor 
 was appointed by will. D. lib. 26, tit. 2, ff. 
 de testament, tut. ; C. lib. 5, tit. 28, de testa- 
 ment, tut. ; Inst. lib. 1, tit. 14, qui testamento 
 tutores dari possunt. 
 
 TUTELAGE. See Tutela. 
 
 TUTBUR OPPICIBUX. In French 
 law, a person whose duties are analogous to 
 those of a guardian in English law ; he must 
 however, be over fifty years of age, and ap- 
 pointed with the consent of the parents, or, in 
 their default, of the conseil de famille, and is 
 only appointed for a child over fifteen years 
 of age. 
 
 TUTEUR SUBROGE. In French law, 
 the title of a second guardian appointed for 
 an infant under guardianship ; his functions 
 are exercised in case the interests of the in- 
 fant and his principal guardian conflict. Code 
 Nap. 420 ; Brown, Diet. 
 
 TUTOR. In Civil Law. One who has 
 
 been lawfully appointed to the care of the 
 person and property of a minor. 
 
 By the laws of Louisiana, minors under 
 the age of fourteen years, if males, and under 
 the age of twelve years, if females, are, both 
 as to their persons and their estates, placed 
 under the authority of a tutor. La. Civ. 
 Code, art. 263. Above that age, and until 
 their majority or emancipation, they are 
 placed under the authority of a curator. Id. 
 
 TUTOR ALIENUS (Lat.). In English 
 Law. The name given to a stranger who 
 enters upon the lands of an infant within the 
 age of fourteen, and takes the profits. 
 
 He may be called to an account by the in- 
 fj.nt and be charged as guardian in socE^e ; 
 Littleton, s. 124; Co. Litt. 89 6, 90 a; Har- 
 grave. Tracts, n. 1. 
 
 TUTOR PROPRIUS (Lat.). The name 
 given to one who is rightly a guardian in 
 socage, in contradistinction to a tutor alienus. 
 
 TUTORSHIP. The power which an in- 
 dividual, sui Juris, has to take care of the 
 person of one who is unable to take care of 
 himself. Tutorship differs from curatorship. 
 See Procukatok; Protutor. 
 
 TUTRIX (Lat.). A woman who is ap- 
 pointed to the office of a tutor. 
 
 TWBLPHINDI. The highest rank of 
 men in the Saxon government, who were 
 valued at 1200s. For any injury done to them, 
 satisfactien was to be made according to their 
 worth. Cowel ; Whart. Diet. 
 
 T-WELVE TABLES, LA^WS OP 
 THE. Laws of ancient Kome, composed 
 in part from those of Solon and other Greek 
 legislators, and in part from the unwritten 
 laws and customs of the Eomans. 
 
 These laws first appeared in the year of Borne 
 303, inscribed on ten plates of brass. The fol- 
 lowing year two others were added, and the en- 
 tire code bore the name of the Laws of the 
 Twelve Tables. The principles they contained 
 were the germ of all the Koman law, the ori- 
 ginal source of the jurisprudence of the greatest 
 part of Europe. 
 
 See a fragment of the Law of the Twelve 
 Tables in Coop. Justinian, 656; Gibbon, Rome, 
 c. 44 ; Maine, Anc. L. 14, 33 ; Code. 
 
 TWELVEMONTH, in the singular, in- 
 cludes the whole year, but in the plural, twelve 
 months of twenty-eight days each ; 6 Co. 62 ; 
 2 Bla. Com. 140, n.; Bish. Writt. Laws, 97. 
 
 TWICE IN JEOPARDY. See Jeo- 
 pardy. 
 
 TWYHINDI. The lower order of 
 Saxons, valued at 200s. Cowel. See Twelf- 
 
 HINDI. 
 
 TYBURN TICKET. In English Law. 
 A certificate given to the prosecutor of a felon 
 to conviction. 
 
 By the 10 & 11 Will. III. c. 23, the original 
 proprietor or first assignee of such certificate 
 is exempted from all and all manner of 
 parish and ward offices within the parish or 
 
TYRANNY 
 
 760 
 
 ULTKA VIRES 
 
 ward where the felony shall Jiave beea com- 
 mitted; Bacon, Abr. Constable (C). 
 
 TYRANNY. The violation of those laws 
 which regulate the division and the exercises 
 of the sovereign power of the state. It is a 
 violation of its constitution. 
 
 TYRANT. The chief magistrate of the 
 state, whether legitimate or otherwise, who 
 violates the constitution to act arbitrarily, 
 contrary to juatice. Toullier, tit. pr41. n. 32'. 
 
 The terms tyrant and usurper are sometime* 
 used as synonymous, because fisurpere are al- 
 most always tyrants ; usurpation is itself a tyran- 
 nical act, but, properly speaking, the words 
 usurper and tyrant convey different ideas. A 
 king may become a tyrant, although legitimate, 
 when he acts despotically ; while a usurper may 
 cease to be a tyrant by governing according to 
 the dictates of justice. 
 
 This term is sometimes applied to persons in 
 authority who violate the laws and act arbitra- 
 rily towards them. See Dbbfotku. 
 
 u. 
 
 tTBERSIMA FIDIiS (Lat. most perfect 
 good faith). A phrase used to express the 
 perfect good faith, concealing nothing, with 
 which a contract must be made ; for example, 
 in the case of insurance, the insured must ob- 
 serve the most perfect good faith towards the 
 insurer. 1 Story, Eq. Jur. § 317; 3 Kent, 283. 
 
 UDAL. Allodial. See Allodium. 
 
 UEAAS, TTEASE. The name of a law 
 or ordinance emanating from the czar of Rus- 
 sia. 
 
 XJLIiAGrE. In Commeroial IiaMr. The 
 amount wanting when a cask on being gauged 
 is found only partly full. 
 
 XTLNAGE. Alnage. See Alnagek. 
 
 ULTIMATUM (Lat.). The last proposi- 
 tion made in making a contract, a treaty, and 
 the like : as, the government of the United 
 States has given its ultimatum, has made the 
 last proposition it will make to complete the 
 proposed treaty. The word also means the 
 result of a negotiation, and it comprises the 
 final determination of the parties concerned 
 in the object in dispute. 
 
 ULTIMaMSUPPLICIUM(Lat.). The 
 
 last or extreme punishment ; the penalty of 
 death. 
 
 ULTIMUS H.a!RES (Lat.). The last 
 or remote heir ; the lord. So called in con- 
 tradistinction to the liwres proximus and the 
 hosres remotior. Dalr. Feud. Pr. 110. 
 
 ULTRA VIRES (Lat.). The modern 
 technical designation, in the law of corpora- 
 tions, of acts beyond the scope of their powers, 
 as defined by their charters or acts of incor- 
 poration. 
 
 A terra used to express the action of a cor- 
 poration which is beyond the powers conferred 
 upon it by its charter, or the statutes under 
 which it was instituted. 13 Am. L. Rev. 
 632. 
 
 This doctrine is of modern growth ; its ap- 
 pearance dates from about the year 1846, be- 
 
 ing first prominently mentioned in 10 Beav. 
 1 and 11 C. B. 775 ; see Green's Brice, Ultra 
 Vires, vii. 
 
 In 22 N. Y. 291, it is said: "There are 
 three classes of cases in England in which the 
 question of vltra vires arises, viz., 1st, cases 
 in which one or more of the shareholders 
 seeks to restrain the officers of the corporation 
 from engaging in transactions unauthorized 
 by the charter ; 2d, actions brought by third 
 persons against corporations, to enforce their 
 contracts, in which the defence relied upon 
 is, that in making the contract the corpora- 
 tion exceeded its corporate powers ; and 3d, 
 similar actions in which the defence is that 
 the directors had exceeded, not the powers 
 conferred upon the entire corporation bylaw, 
 but those conferred by the sWeholders upon 
 the directors by deed." It is said that the true 
 and primary meaning of the doctrine is, that 
 a corporation has certain powers only, and 
 that it can be bound only when acting within 
 the limits of these powers; Green's Brice, 
 Ultra Vires, 35. When acts of corporations 
 are spoken of as ultra vires, it is not intended 
 that they are unlawful, or even such as the 
 corporation cannot perform, but merely those 
 which are not within the powers conferred 
 upon the corporation by the act of its crea- 
 tion, etc. ; 63 N. Y. 68. A corporate act is 
 said to be ultra vires when it is not within the 
 scope of the powers of the corporation to per- 
 form it under any circumstjinces, or for any 
 purpose ; or, with reference to the rights of 
 certain parties, when the corporation is not 
 authorized to perform it without their con- 
 sent ; or, with reference to some specific pur- 
 pose, when it is not authorized to perform it 
 for that purpose, though fully within the 
 scope of the general powers of the corpora- 
 tion, with the consent of the parties inter- 
 ested, or for some other purpose ; 43 Iowa, 
 48. See 35 L. J. Ch. 166 ; 125 Mass. 333 ; 
 37 Cal. 543. 
 
 As a general rule, such acts are void, and 
 impose no obligation upon the corporation al- 
 
ULTRA VIRES 
 
 761 
 
 ULTRA VIRES 
 
 though they assume the form of contracts ; 
 inasmuch as all persons dealing with a corpo- 
 intion, especially in the state or country in 
 which and under whose laws it was created, 
 are chargeable with notice of the extent of its 
 chartered powers. It is otherwise as to laws 
 imposing restraints upon it not contained in 
 its charter where the contract is made or the 
 transaction takes place without the limits of 
 the state or country under whose laws the 
 corporation exists ; 8 Barb. 233. 
 
 If, however, the corporation receives any 
 money or other valuable consideration under 
 such a transaction or contract, it is not doubted 
 that upon rescinding or repudiating the act 
 or contract under which it was paid or de- 
 livered it could be recovered back in an appro- 
 priate action ; 14 Penn. 81. 
 
 So, too, the artificial body — the corporation 
 — is liable to be proceeded against by qxio 
 warranto for the usurpation of powers in its 
 name by its officers and agents, and its char- 
 ter may be taken away as a penalty for per- 
 mitting such acts — the defence of a want of 
 power to bind the corporation not being avail- 
 able in such cases, since it would lead to entire 
 corporate irresponsibility ; Morawetz, Priv. 
 Corp. § 649 ; 1 Blackf. 267. 
 
 Among the rules laid down by a recent 
 writer as the leading principles of this doctrine 
 are these : A corporation has all the capacities 
 for engaging in transactions and for manage- 
 ment which are given it expressly by its char- 
 ter, etc., or impliedly given it by reasonable 
 implication from the language thereof. Capa- 
 cities or powers for management may be given 
 by wide general language. Beyond these 
 powers, they have no capacities or powers, 
 and cannot legally or validly engage in other 
 transactions. 
 
 Corporations cannot be rendered directly 
 liable upon ultra vires transactions, but must 
 account for benefits received therefrom. As 
 long as the transaction remains executory, it 
 is established that it cannot be enforced. But 
 if it be executed, though in England it cannot 
 be enforced or sued on, yet in the United 
 States there seems some doubt whether the 
 corporation will be allowed to set up the de- 
 fence of ultra vires. In both countries, how- 
 ever, unquestionably the corporation must 
 account for benefits derived. Special pro- 
 ceedings, in themselves ultra vires, will some- 
 times be upheld as having been rendered 
 necessary by unexpected circumstances. Any 
 party to an ultra vires transaction may set up 
 the defence thereof, and any one corporator 
 may call upon the courts to restrain the cor- 
 poration from engaging therein ; Green's 
 Brice, Ultra Vires, 41-43. 
 
 In the United States the defence of ultra 
 vires interposed against a contract wholly or 
 in part executed has very generally been 
 looked upon with disfavor. The result has 
 been that in some cases a liberal construction 
 has been applied so as to destroy the founda- 
 tion of the defence ; in others the courts 
 have allowed the recovery of the money paid. 
 
 not upon the contract, but because of the 
 money received and the benefits enjoyed; 
 while in still another class of cases, the doc- 
 trine of estoppel in pais has been applied to 
 exclude the defence. The courts may be 
 said, generally, , to be tending towards the 
 doctrine — certainly so far as business corpora- 
 tions are concerned — that corporations are 
 to be held liable upon executed contracts, 
 where the contracts involved are not ex- 
 pressly or by necessary implication prohi- 
 bited by their charters or the general law; 
 Judge Green's note to Brice, Ultra Vires, 
 729. 
 
 There is said to be a tendency of the courts, 
 based upon the strongest principles of justice, 
 to enforce contracts against corporations, al- 
 though in entering into them they have ex- 
 ceeded their chartered powers, where they 
 have received the consideri^fion and the bene- 
 fit of the contract; 13 Am. L. Rev. 654, 
 citing 65 III. 413; 7 Wall. 392; 98 U. S. 
 621. The doctrine of ultra vires, when 
 invoked for or against a corporation, should 
 not be allowed to prevail where it would de- 
 feat the ends of justice or work a legal wrong ; 
 96 U. S. 258. The executed dealings of 
 corporations should be allowed to stand for 
 and against both parties, when good faith so 
 requires ; 22 N. Y. 258, 494 ; 63 N. Y. 62. 
 Where a corporation has entered into a con- 
 tract which has been fully executed on the 
 other part, and nothing remains but the pay- 
 ment by the corporation of the consideration, 
 it will not be allowed to set up that the con- 
 tract was ultra vires ; 83 Penn. 1 60. Cor- 
 porations should be restricted so far as courts 
 can, in the exercise of their powers, limit 
 them ; but the plea is not a gracious one, 
 that a contract which they have deliberately 
 made, and of which they have received the 
 full benefit, is void for want of power in them 
 to make it. 
 
 It has been held ultra vires for a railway 
 company to guarantee to the shareholders of 
 a steam packet company a dividend upon 
 their paid-up capital ; 10 Beav. 1 ; to engage 
 in the coal trade; 6 Jur. N. s. 1006; lor a 
 company to assume the debt of another ; 34 
 Vt. 144 ; or to make or indorse accommoda- 
 tion paper; 11 Ind. 104; or to engage as 
 surety- for another in a business in which it 
 has no interest ; 26 Barb. 568 ; for one rail- 
 road company to unite with another like com- 
 pany, and both conduct their business under 
 one management ; 21 How. 441 ; or to run 
 a line of steamboats in connection with its 
 road ; 39 Mo. 451 ; but a railway company 
 may contract to carry beyond its own lines ; 
 54 Penn. 77; 45 N. Y. 525; 96 U. S. 258; 
 but see 22 Conn. 502. Where a corporation 
 is incompetent to take real estate, a convey- 
 ance to it is only voidable ; Morawetz, Corp. 
 §117. A railroad company has implied au- 
 thority to erect a refreshment room ; L. R. 7 
 Eq. 116 ; a corporation authorized to erect a 
 market has authority to purchase land for 
 that purpose ; Dill. Mun. Corp. § 372 ; where 
 
ULTRA VIRES 
 
 762 
 
 UNALIENABLE 
 
 a corporation had authority to keep steam 
 vessels for the purposes of a ferry, they 
 could use these vessels, when otherwise un- 
 employed, for excursion trips ; 30 Beav. 40 ; 
 11 Allen, 326. Corporations generally have 
 authority to borrow money to carry out the 
 objects for which they were created, and to 
 execute their obligations therefor; Field, 
 Corp. § 249 ; including irredeemable bonds ; 
 21 Am. L. Reg. n. s. 713 ; they may, gene- 
 rally, by virtue of implied powers, make 
 promissory notes ; 13 Am. L. Rev. 641 ; 15 
 Wall. 566 ; 35 N. Y. 505 ; 46 Ala. 98. Where 
 a railroad company, without legislative autho- 
 rity, leased its road to three persons, for twenty 
 years, this was held ultra vires; 101 U. S. 
 71. A railroad company cannot guarantee 
 the expenses of a musical festival, though the 
 guarantee be signed by a majority of the 
 directors with the reasonable belief that the 
 festival would increase the proper business of 
 the company ; 131 Mass. 258 ; the same rul- 
 ing applies to a company organized to manu- 
 facture and sell organs ; ibid. 
 
 It is said to be now well settled that a 
 power granted to a corporation to engage in 
 certain business carries with it the authority 
 to act precisely as an individual would act in 
 carrying on such business, and that it would 
 possess for this purpose the usual and ordinary 
 means to accomplish the objects of its crea- 
 tion, in the same manner as though it were a 
 natural person; Field, Corp. § 271. 
 
 The result of the English authorities is, 
 that corporations, — certainly those for com- 
 mercial purposes, and probably all corpora- 
 tions to which the doctrine applies, — have by 
 implication ajl capacities and powers which, 
 being reasonably incidental to their enter- 
 prise or operations, are not forbidden, either 
 expressly by their constating instruments or 
 by necessary inference therefrom ; Green's 
 Brice, Ultra Vires, 40. The American deci- 
 sions seem to be tending towards this doctrine ; 
 id. note a. Prima facie, all the contracts of 
 a corporation are valid, and it lies in those who 
 impeach any contract to make out that it is 
 avoided; 3 Macq. 382. Corporations are 
 presumed to contract within their powers ; 
 96 U. S. 267. 
 
 A court of equity, at the suit of the stock- 
 holders of the corporation, will restrain the 
 commission of acts beyond the corporate 
 power, by injunction operating upon the indi- 
 vidual officers and directors as well as the 
 corporation. This is now an acknowledged 
 head of equity jurisdiction; Redf. Railw. 
 400; 6 id. 289; 18 Wall. 626; 10 Beav. 
 1 ; 12 id. 339 ; creditors have the same 
 right in this respect as stockholders ; 13 Am. 
 L. Rev. 659. 
 
 Acquiescence for any considerable time in 
 the exercise of excessive powers, after they 
 come to the knowledge of the stockholders, 
 would, however, be a decisive objection to 
 such a remedy ; 19 E. L. & E. 7. 
 
 In regard to municipal corporations, the 
 rule is stricter against the validity of ultra 
 
 vires contracts. See 19 Wall. 468; Dill 
 Mun. Corp. §§ 381, 749. 
 
 It has been said that a corporation is liable 
 for the negligence and other torts of its 
 agents and servants, even when related to and 
 connected with the acts of the corporation 
 that are ultra vires ; even if done in the exe- 
 cution of usurped powers and of purposes 
 cleaAy ultra vires; 13Am. L. Rev. 668; but 
 as to whether a corporation is liable for such 
 wrongs by its agents as are beyond the scope 
 of corporate authority, see L. R. 2 Q B 
 534; 7 H. &N. 172; 47 N. Y. 122. 
 
 See Green's Brice, Ultra Vires; Field, 
 Angell & A. on Corp.; and articles in 16 Am. 
 L. Reg. N. s. 613, and 13 Am. L. Rev. 632; 
 Cooley, Torts, 119; Morawetz, Priv. Corp. 
 
 ULTHONEUS WITNESS. In Scotch 
 Law. A witness who offers his testimony 
 without being regularly cited. The objection 
 only goes to his credibility, and may be re- 
 moved by a citation at any time before the 
 witness is sworn. See Bell, Diet. Endence. 
 
 tTMFIRAGE. The decision of an umpire. 
 This word is used for the judgment of an um- 
 pire, as the word award is employed to desig- 
 nate that of arbitrators. 
 
 UMPIRE. A person selected by two or 
 more arbitrators who cannot agree as to the 
 subject-matter referred to them, for the pur- 
 pose of deciding the matter in dispute. Some- 
 times the term is applied to a single arbitra- 
 tor selected by the parties themselves ; Kyd, 
 Awards, 6, 76, 77; Cald. Arb. 38; Dane, 
 Abr. Index ; 3 Viner, Abr. 93 ; Comyns, 
 Dig. Arbitrament (F) ; 4 Dall. 271, 432 ; 4 
 Scott, N. 8. 378. The jurisdiction of the 
 umpire and arbitrators cannot be concurrent : 
 if the arbitrators make an award, it is bind- 
 ing ; if not, the award of the umpire is bind- 
 ing ; T. Jones, 167. If the umpire sign the 
 award of the arbitrators, it is still their 
 award, and vice versa; 6 Harr. &-'J. 403. 
 Arbitrators may appoint an umpire after their 
 term of service has expired, if the time is 
 not gone within which the umpire was to make 
 his aw!u-d ; 2 Johns. 57. Subsequent dissent 
 of the parties, without just cause, will have 
 no effect upon the appointment ; but they 
 should have notice; 11 East, 367; 12 Mete. 
 293 ; 1 HaiT. & J. 362, n. If an umpire re- 
 fuse to act, another may be appointed toties 
 quoties; 11 East, 367. See 2 Saund. 133 a, 
 note. 
 
 An umpire has not the privilege of review- 
 ing the declarations of the tribunals of a 
 country as to the intrepretation of its laws : as, 
 where a competent tribunal in the United 
 States has decided that a foreigner has been 
 duly naturalizprt ; Morse, Citizenship, 79, 86. 
 
 UNA VOCE (Lat.). With one voice; 
 unanimously. 
 
 UNALIENABLE. Incapable of being 
 sold. 
 
 Things which are not in commerce, as, 
 public roads, are in their nature unalienable. 
 Some things are unalienable in consequence 
 
UNANIMITY 
 
 763 
 
 UNDERWRITER 
 
 of particular provisions in the law forbidding 
 their sale or transfer : as, pensions granted by 
 the government. The natural rights of life 
 and liberty are unlienable. 
 
 UNANIMITY (Lat. unus, one, animus, 
 mind). The agreement of all the persons 
 concerned in a thing, in design and opinion. 
 
 Generally, a simple majority of any num- 
 ber of persons is sufficient to do such acts as 
 the whole number can do: for example, a 
 majority of the legislature can pass a law ; 
 hut there are some cases in which unanimity 
 is required: for example, a traverse jury 
 composed of twelve individuals cannot de- 
 cide an issue submitted to them unless they 
 are unanimous. 
 
 UNCERTAINTY. That which is un- 
 known or vague. See Certainty. 
 
 UNCIATBRR^ (Lat.). This phrase 
 often occurs in charters of the British kings, 
 and denotes some quantity of land. It was 
 twelve modii, each modius possibly one hun- 
 dred feet square. Mon. Angl. torn. 3, pp. 
 198, 205. 
 
 The twelfth part of the Roman as. Dess. 
 Diet, du Dig. As. The as was used to ex- 
 press an integral sum : hence uncia for one- 
 twelfth of any thing, commonly one-twelfth 
 of a pound, i.e. an ounce. Id.; 2 Sharsw. 
 Bla. Com. 462, note m. 
 
 UNCLE. The brother of a father or 
 mother. See Avunculus ; Patkuus. 
 
 UNCONSCIONABLE B A R G A I N 
 A contract which no man in his senses, not 
 under delusion, would make, on the one 
 hand, and which no fair and honest man 
 would accept, on the other. 4 Bouv. Inst 
 n. 3848. See Usuky. 
 
 UNCONSTITUTIONAL. That which 
 is contrary to the constitution. See Consti- 
 tutional. 
 
 UNCORE PRIST (L. Fr. still ready), 
 In Pleading. A plea or replication that the 
 party pleading is still ready to do what is 
 required. Used in connection with the words 
 tout temps prist, the whole denotes that the 
 party always has been and still is ready to do 
 what is required, thus saving costs where the 
 whole cause is admitted, or preventing delay 
 'where it is a replication, if the allegation 
 is made out. 3 Bla. Com. 303. 
 
 UNDE NIHIL HABET. See Dowek. 
 
 UNDEFENDED. A term sometimes ap- 
 plied to one who is obliged to make his own 
 defence when on trial, or in a civil cause. A 
 cause is said to be undefended when the de- 
 fendant makes default, in not putting in an 
 appearance to the plaintiff's action ; in not 
 putting in his statement of defence ; or, in 
 not appearing at the trial either personally or 
 by counsel, after having received due notice. 
 Lush's Prac. 548-9 : Judicature Act, 1875 ; 
 Moz. & W. 
 
 UITDER AND SUBJECT. Words fre- 
 quently used in conveyances of land which 
 
 is subject to a mortgage, to show that the 
 grantee takes subject to such mortgage. See 
 Mortgage; 27 Am. L. Reg. n. s. 337, 
 401. 
 
 UNDERLEASE. An alienation by a 
 tenant of a part of his lease, reserving to 
 himself a reversion : it diifers from an assign- 
 ment, which is a transfer of all the tenant's 
 interest in the lease. 3 Wils. 234 ; W. 
 Blackst. 766. And even a conveyance of the 
 whole estate by the lessee, reserving to him- 
 self the rent, with a power of re-entry for 
 non-payment, was held to be not an assign- 
 ment, but an underlease ; 1 Stra. 405. In 
 Ohio it has been decided that the transfer 
 of a part only of the lands, though for the 
 whole term, is an underlease ; 2 Ohio, 216. 
 In Kentucky, such a transfer, on the con- 
 trary, is considered as an assignment ; 4 
 Bibb, 538. See Lease ; Assignment. 
 
 UNDERLIE THE LAW. In Scotch 
 criminal procedure, an accused person, in ap- 
 pearing to take his trial, is said ' ' to compear 
 and underlie the law." Moz. & W. 
 
 UNDER-SHERIFF. See SHERiFr. 
 
 UmjERTAEING-. An engagement by 
 one of the parties to a contract to the other, 
 and not the mutual engagement of the par- 
 ties to each other ; a promise. 5 East, 17; 2 
 Leon. 224 ; 4 B. & Aid. 695. It does not 
 necessarily imply a consideration ; 3 N. Y. 
 335. 
 
 UNDER-TENANT. One who holds by 
 virtue of an underlease. See Sub-Tenant. 
 
 UNDERTOOK. Assumed ; promised. 
 
 This is a technical word which ought to be 
 inserted in every declaration of assumpsit 
 charging that the defendant undertook to 
 perform the promise which is the foundation 
 of the suit ; and this though the promise be 
 founded on a legal liability or would be im- 
 plied in evidence. Bacon, Abr. Assumpsit 
 (F); 1 Chitty, Pi. 88, note p. 
 
 UNDER-TUTOR. In Louisiana. In 
 every tutorship there shall be an under-tutor 
 whom it shall be the duty of the judge to ap- 
 point at the time letters of tutorship are cer- 
 tified for the tutor. 
 
 It is the duty of the under-tutor to act 
 for the minor whenever the interest of the 
 minor is in opposition to the interest of the 
 tutor ; La. Civ. Code, art. 300, 301 ; 1 Mart. 
 La. N. s. 462; 9 Mart. La. 643; 11 La. 
 189 ; Pothier, Des Personnes, partie pr6m. 
 tit. 6, 3. 5, art. 2. See Procurator ; Pro- 
 tutor ; TUTEUR SuBROGfi. 
 
 UNDERWRITER. The party who 
 agrees to insure another on life or property, 
 in a policy of insurance. He is also called 
 the insurer. 
 
 The title is almost exclusively confined to 
 insurers of marine risks, and is derived from 
 the method of obtaining such insurance for- 
 merly in vogue, usually as follows : A pre- 
 mium having been agreed upon between the 
 insured and an insurance broker, a statement 
 
UNDIVIDED 
 
 764 
 
 U, S. COMMISSIONERS 
 
 of such premium and of the ship or cargo, 
 and the voyage or time, was written at the 
 head of a sheet which was laid on the broker's 
 table. Then such merchants as were willing 
 to insure such property on such terms sub- 
 scribed their names to the statement above 
 mentioned, stating the amount they were will- 
 ing to insure ; and so on until the desired 
 amount of insurance was obtained. 1 Pars. 
 Mar. Ins. 14. For the liability of un- 
 derwriters, see AvBKAGis ; Insurance ; 
 Lloyds ; Marine Insurance ; Kisks and 
 Perils ; Total Loss. 
 
 UNDIVIDED. Held by the same title 
 by two or more persons, whether their rights 
 are equal as to value or quantity, or un- 
 equal. 
 
 Tenants in common, joint-tenants, and 
 partners hold an undivided right in their re- 
 spective properties until partition has been 
 made. The rights of such owner of an un- 
 divided thing extend over the whole and 
 every part of it, totum in ioto, et totum in 
 qualibet parte. See Partition ; Per My 
 ET PER Tout. 
 
 UNDUE INFLUENCE. That degree 
 of improper influence exercised by one stand- 
 . ing in a confidential, fiduciary, or other re- 
 lation towards another, as will invalidate a 
 gift, a will, or a contract, made by the latter 
 to the advantage of the former. " The prin- 
 ciple runs through all the various relations 
 where, from disparity of years, intellect, or 
 knowledge, one of the parties . . . has an 
 ascendency, which prevents the other from 
 exercising an unbiased judgment. It may 
 therefore apply as between parent and child, 
 guardian and ward, husband and wife, coun- 
 sel and client ; 2 Hagg. 187; 15 Beav. 278, 
 299; 57 111. 186 ; ... or wherever weak- 
 ness, ignorance, or an implicit reliance on the 
 good faith of another gives an occasion for 
 an abuse of influence; 9 Hare, 540; 17 
 Ohio, 484, 505 ; Note to Huguenin vs. 
 Baseley, 2 L. C. Eq. 1193." As a rule, 
 equity will afford relief in all transactions in 
 which "influence has been acquired and 
 abused, in which confidence has been be- 
 trayed;" 7 H. L. Cas. 750. For cases which 
 were held not to fall under the doctrine of 
 Huguenin vs. Baseley, supra, see 4 Ir. Ch. 
 330; 101 Mass. 494; Bisp. Eq. 231 et seq. 
 The influence to invalidate a will must be 
 such as in some degree to destroy free 
 agency ; not merely that produced by natural 
 affection, or a wish to please another ; see 1 
 Cox, 355. 
 
 Under English statutes, any person using 
 "undue influence," to induce any one to vote 
 or refrain from voting, at an election, is 
 guilty of a misdemeanor and forfeits £50 ; 
 21 & 22 Vict. c. 87 ; Whart. Diet. 
 
 UNGELD. An outlaw. Toml. 
 
 UNICA TAXATIO (Lat.). The an- 
 cient language of a special award of venire, 
 where of several defendants one pleads, and 
 one lets judgment go by default, whereby the 
 
 jury who are to try and assess damages on the 
 issue are also to assess damages against the 
 defendant suffering judgment by default. 
 Lee, Diet. 
 
 UNIFORMITY OF PROCESS. Id 
 English La-vr. An act providing for uni- 
 formity of process in personal actions in his 
 majesty's courts of law at M^estminster, 2 
 Will. IV. c. 39, 23d May, 1832 ; 3 Chit. Stat. 
 494. The improved system thus established 
 was more fully amended by the Common Law 
 Procedure Acts of 1852, 1854, and I860, and 
 by the Judicature Acts of 1873 and 1875. 3 
 Steph. Com. 490 ; Moz. & W. 
 
 ~ UNILATERAL CONTRACT. In 
 Civil Law. When the party to whom an 
 engagement is made makes no express agree- 
 ment on his part, the contract is called uni- 
 lateral, even in cases where the law attaches 
 certain obligations to his acceptance. La. 
 Civ. Code, art. 1758; Code Nap. 1103. A 
 loan of money and a loan for use are of this 
 kind. Pothier, Obi. part 1, c. 1, s. 1, art. 
 2; LeQ. ElSmen. § 781. 
 
 In the Common La-w. According to Pro- 
 fessor Langdell, every binding promise not in 
 consideration of another promise is a unilat- 
 eral contract. For example, simple-contract 
 debts, bonds, promissory notes, and policies 
 of insurance. A bilateral contract, which 
 consists of two promises given in exchange 
 for and consideration of each other, becomes 
 a unilateral contract when one of the pro- 
 mises is fully performed ; Langdell, Sum. 
 Cont. § 183. 
 
 UNINTELLIGIBLE. That which can- 
 not be understood. 
 
 When a law, a contract, or will is unintel- 
 ligible, it has no effect whatever. See Con- 
 struction. 
 
 UNIO FROLIUM (Lat. union of offspring). 
 A species of adoption used among the Ger- 
 mans, which takes place when a widower 
 having children marries a widow who also 
 has children. These parents then agree that 
 the children of both marriages shall nave the 
 same rights to their succession as those which 
 may be the fruits of their marriage. Lep. 
 E16m. § 187. 
 
 UNION.' A popular term for the United 
 States of America : as, the Union must and 
 shall be preserved 
 
 UNITED STATES COMMISSION- 
 ERS. Each circuit court of the United 
 States may appoint, in different parts of the 
 district for which it is held, as many discreet 
 persons as it may deem necessary, who shall 
 be called "commissioners of the circuit 
 court," and shall exercise the powers which 
 are or may be conferred upon them ; K. S. 
 §627. 
 
 These officers are authorized to hold to se- 
 curity of the peace, and for good behavior 
 arising under the constitution and laws of the 
 United States; R. S. § 727. 
 
 They have also the power to carry into ef- 
 
UNITED STATES OF AMERICA 765 UNITED STATES OF AMERICA 
 
 feet, according to the true intent and mean- 
 ing thereof, the award or arbitration, or 
 decree of any consul, vice-consul, or commer- 
 cial agent, to sit as judges or arbitrators in such 
 diiferences as may arise between the captains 
 and jcrews of vessels, application for the ex- 
 ercise of such power being first made by peti- 
 tion of such consul, etc. ; R. S. § 728. 
 
 They have power also to take bail and affi- 
 davits when required or allowed in any circuit 
 or district court of the United States ; R. S. 
 § 945. 
 
 They may imprison or bail offenders ; R. 
 S. § 1010; may discharge poor convicts im- 
 prisoned; R. S. 8 1042; may administer 
 oaths and take acknowledgments ; R. S. § 
 1778; may institute proceedings under the 
 civil rights laws; R. S. §§ 1982, 1984; may 
 issue warrants for the arrest of foreign sea- 
 men, in case of dispute or desertion ; K. S. § 
 4079; may summon the master of a vessel in 
 cases of seamen's wages ; may apprehend 
 fugitives from justice ; R. S. § 5270. 
 
 The district court of the United States may 
 appoint commissioners before whom ap- 
 , praisers of vessels or goods and merchandise 
 seized for breaches of any law of the United 
 States may be sworn ; and such oaths so 
 taken are as effectual as if taken before the 
 judge in open court; R. S. § 670. 
 
 The court of claims has power to appoint 
 commissioners, before whom examinations 
 may be made upon oath of witnesses touch- 
 ing all matters pertaining to claims ; R. S. 
 ^§ 1071, 1080. 
 
 UNITED STATES OF AMERICA. 
 The nation occupying the territory between 
 British America on the north, Mexico on the 
 south, the Atlantic Ocean and Gulf of Mexico 
 on the east, and the Pacific Ocean on the west ; 
 and including the territory of Alaska in the 
 extreme northwest of the American conti- 
 nent ; being the republic whose organic law 
 is the constitution adopted by the people of 
 the thirteen states which declared their inde- 
 pendence of the government of Great Britain 
 on the fourth day of July, 1776. 
 
 When they are said to constitute one nation, 
 this must be understood with proper qualiflca- 
 tions. Our motto, B pluribus unum^ expresses 
 the true nature of that composite body which 
 foreign nations regard and treat with In all their 
 communications with our people. No state can 
 enter into a treaty, nor make a compact with any 
 foreign nation, nor grant letters of marque or 
 reprisal. Art. 1, § 10 ; art. 4, § 4. To foreigners 
 we present a compact unity, an undivided sov- 
 ereignty. No state can do a national act nor 
 legally commit the faith of the Union. 
 
 In our inter-state and domestic relations we 
 are far more a complex body. In these we are 
 for some purposes one. We are so as far as our 
 constitution makes us one, and no further ; and 
 under this we are so far a unity that one state is 
 not foreign to another. Art. 4, § 2. A consti- 
 tution, according to the original meaning of the 
 word, is an organic law. It includes the organi- 
 zation of the government, the grant of powers, 
 tte distribution of these powers into legislative, 
 executive, and judicial, and the names of the 
 ■officers by whom these are exercised. And with 
 
 these provisions a constitution, properly so called, 
 terminates. But ours goes further. It contains 
 restrictions on the powers of the government 
 which it organizes. 
 
 The writ of habeas corpus, the great instrument 
 in defence of personal liberty against the en- 
 croachment of the government, shall not be 
 suspended but in case of rebellion or invasion, 
 and when the public safety requires it. No bill 
 of attainder or ex post facto law shall be passed ; 
 no money shall be drawn from the treasury 
 where there is not a regular appropriation ; no 
 title of nobility shall be granted ; and no person 
 holding office shall receive a present from any 
 foreign government. Art. 1, § 9. To these, 
 which are in the original constitution, may be 
 added the eleven first amendments. These, as 
 their character clearly shows, had their origin in 
 a jealousy of the powers of the general govern- 
 ment. All are designed more effectually to 
 guard the rights of the people, and would pro- 
 perly, together with the restrictions in the origi- 
 nal constitution, have a place in a bill of rights. 
 Any act or law of the United States in viola- 
 tion of these, with whatever formality enacted, 
 would be null and void, as an excess of power. 
 
 The restrictions on state sovereignty, besides 
 those which relate to foreign nations, are that 
 no state shall coin monej', emit bills of credit, 
 make any thing but gold and silver a tender in 
 the payment of debts, pass any bill of attainder 
 or ex post facto law, or law impairing the obliga- 
 tion of contracts, or grant any title of nobility. 
 These prohibitions are absolute. In addition 
 to these restrictions, the results of the rebellion 
 of 1861-1865 caused the adoption of the 13th, 
 14th, and 15th amendments, which lay still 
 further restrictions upon the power of the states, 
 so far as relates to slavery and the regulation of 
 the right ofsuffrage. The 13th amendment pro- 
 vides that neither slavery nor involuntary servi- 
 tude, except as a punishment for crime whereof 
 the party shall have been duly convicted, shall 
 exist within the United States or any place 
 subject to its jurisdiction, and confers power 
 upon congress to enforce this article by appro- 
 priate legislation ; the 14th amendment provides 
 that no state shall make or enforce any law 
 which shall abridge the privileges or Immunities 
 of citizens of the United States, and defines who 
 shall be so considered ; the Isth amendment 
 specifically provides that the right of citizens of 
 the United States to vote shall not be denied or 
 abridged by the United States or any state on 
 account of race, color, or previous condition of 
 servitude. 
 
 Without the consent of congress no state shall 
 lay any duties on imports or exports, or any duty 
 on tonnage, or keep troops or ships of war in 
 time of peace, or enter into any agreement or 
 compact with another state, or engage in war 
 unless actually invaded, or in imminent danger 
 of being so. 
 
 What constitutes a duty on exports or Imports 
 has been a matter of frequent litigation in the 
 supreme court. It has been finally decided that 
 the term "import" as used in the constitution 
 does not refer to articles imported from one state 
 to another, but only to articles imported from 
 foreign states ; 8 Wall. 133 ; but the prohibition 
 contained in those provisions of the constitution 
 which ordain that congress shall have power to 
 regulate commerce with foreign nations and 
 among the several states ; that no state shall 
 levy any imposts or duties on imports or exports ; 
 that the citizens of each state shall be entitled 
 to all the immunities and privileges of citizens 
 of the several states, have been construed toge- 
 ther by the supreme court ; and various statutes 
 
UNITED STATES OP AMERICA 766 UNITED STATES OP AMERICA 
 
 of the dififerentr states have been declared uncon- 
 stitutional because they violated them. Thus a 
 statute allowing an additional fee to port-war- 
 dens for every vessel entering a port; 6 Wall. 
 31 ; a tax on passengers introduced from foreign 
 countries ; 7 How. 286 ; a tax on passengers 
 going out of a state ; 6 Wall. 35 ; a tax levied 
 upon freight brought into or through one state 
 into another; 1.5 Wall. 2.33; a tonnage tax on 
 ve.'^sels entering the harbors of a state, either 
 from foreign or domestic ports ; 12 Wall. 204 ; 
 19 id. 581 ; 20 id. 577 ; 100 U. S. 434 ; have all 
 been so decided. It is said that wherever sub- 
 jects, in regard to which a power to regulate 
 commerce is asserted, are in their nature na- 
 tional, or admit of one uniform system or plan 
 of regulation, they are exclusively within the 
 regulating control of congress. But the mere 
 grant of the commercial power to congress does 
 not forbid the states from passing laws to regu- 
 late pilotage. The power to regulate commerce 
 includes various subjects, upon which there 
 should be some uniform rule, and upon others 
 different rules in different localities. The power 
 is exclusive in congress in the former, but not 
 so in the latter class ; 12 How. 297. 
 
 Whatever these restrictions are, they operate 
 on all states alike, and if any state laws violate 
 them, the laws are void ; and without any legis- 
 lation of congress the supreme court has de- 
 clared them so ; 6 Cra. 100 ; 4 Wheat. 122, i318 ; 
 16 How. 304 ; cases supra; Cooley, Const. Lim. 
 729. 
 
 The United States have certain powers, the 
 principal of which are enumerated in art. 1, § 8, 
 running into seventeen specific powers. Others 
 are granted to particular branches of the govern- 
 ment : as, the treaty-making power to the presi- 
 dent and senate. These have an equal effect in 
 all the states, and so far as an authority is vested 
 in the government of the Union or in any de- 
 partment of it, and so far as the states are pro- 
 hibited from the exercise of certain powers, so 
 far in our domestic affairs we are a unity. 
 
 Within these granted powers the sovereignty 
 of the United States is supreme. The constitu- 
 tion, and the laws made in pursuance of it, and 
 all treaties, are the supreme law of the land. 
 Art. 6. And they not only govern in their words, 
 but in their meaning. If the sense is ambiguous 
 or doubtful, the United States, through their 
 courts, in all cases where the rights of an indi- 
 vidual are concerned, are the rightful exposi- 
 tors. For without the authority of explaining 
 this meaning the United States would not be 
 sovereign. 
 
 In these matters, particularly in the limita- 
 tion put on the sovereignty of the states, it has 
 been sometimes said that the constitution exe- 
 cutes itself. This expression may be allowed ; 
 but with as much propriety these may be said to 
 be laws which the people have enacted them- 
 selves, and no laws of congress can either take 
 from, add to, or confirm them. They are rights, 
 privileges, or immunities which are granted by 
 the people, and are beyond the power of con- 
 gress or state legislatures ; and they require no 
 law to give them force or efficiency. The mem- 
 bers of congress are exempted from arrest, ex- 
 cept for treason, felony, and breach of the peace, 
 in going to and returning from the seat of go- 
 vernment. Art. 1, § 6. It is obvious that no 
 law can affect this immunity. On these subjects 
 all laws are purely nugatory, because if they go 
 beyond or fall short of the provisions of the 
 constitution, that may always be appealed to. 
 An individual has just what thatglves him, — no 
 less and no more. It may be laid down as a 
 universal rule, admitting of no exception, that 
 
 when the constitution has established a disability 
 or immunity, a privilege or a right, these are 
 precisely as that instrument has fixed them, and 
 can be neither pigmented nor curtailed by any 
 act or law either of congress or a state legisla- 
 ture. We are more particular in stating this 
 principle because it has sometimes been forgotten 
 both by legislatures and theoretical expositors 
 of the constitution. 
 
 It has been justly thought a matter of impor- 
 tance to determine from what source the United 
 States derive their authority. 4 Wheat. 402. 
 When the constitution was framed, the peol 
 pie of this country were not an unformed mass 
 of individuals. They were united into regular 
 communities under state governments, and to 
 these had confided the whole mass of sovereign 
 power which they chose to intrust out of their 
 own hands. The question here proposed is 
 whether our bond of union is a compact entered 
 into by the states, or the constitution is au organic 
 law established by the people. To this question 
 the preamble gives a decisive answer : We, the 
 people, ordain and establish this constitution. 
 The members of the convention which formed it 
 were indeed appointed by the states. But the 
 government of the states had only a delegated 
 power, and, if they had an inclination, had no 
 authority to transfer the allegiance of the people 
 from one sovereign to another. > The great men 
 who formed the constitution were sensible of 
 this want of power, and recommended it to the 
 people themselves. They assembled in their 
 own conventions and adopted it, acting in their 
 original capacity as individuals, and not as 
 representing states. The state governments are 
 passed by in silence. They had no part in mak- 
 ing it, and, though they have certain duties to 
 perform, as, the appointment of senators, are 
 properly not parties to it. The people in their 
 capacity as sovereign made and adopted it ; and 
 it binds the state goveraments without their con- 
 sent. The United States as a whole, therefore, 
 emanates from the people, and not from the 
 states, and the constitution and laws of the 
 states, whether made before or since the adop- 
 tion of that of the United States, are subordinate 
 to it and the laws made in pursuance of it. 
 
 It has very truly been said that out of the mass 
 of sovereignty intrusted to the states was carved 
 a part and deposited with the United States. 
 But this was taken by the people, and not by the 
 states as organized communities. The people 
 are the fountain of sovereignty. The whole was 
 originally with them as their own. The state 
 governments were but trustees acting under a 
 derived authority, and had no power to delegate 
 what was delegated to them. But the people, as 
 the original fountain, might take away what 
 they had lent and intrust it to whom they 
 pleased. They had the whole title, and, as abso- 
 lute proprietors, had the right of using or abus- 
 ing, — jus utendi et almtendi. 
 
 A consequence of great importance flows from 
 this fact. The laws of the United States act 
 directly on individuals, and they are directly and 
 not mediately responsible through the state gov- 
 ernments. This is the most important improve- 
 ment made by our constitution over all previous 
 confederacies. As a corollary from this, if not 
 more properly a part of it, the laws act only on 
 states through individuals. They are supreme 
 over persons and cases, but do not touch the 
 state ; they act through them ; 1 Wheat. 368. If 
 a state passes an ex post facto law, or passes a law 
 impairing the obligation of contracts, or makes 
 any thing but gold or silver a tender in payment 
 of debts, congress passes no law which touches 
 the state : it is sufficient that these laws are void , 
 
UNITED STATES OF AMERICA 767 UNITED STATES OF AMERICA 
 
 and when a case ie brought before the court, it, 
 without any law of congress, will declare them 
 void. They give no person an immunity, nor de- 
 prive any of a right. Again : should a state pass 
 a law declaring war against a foreign nation, 
 grant letters of marque and reprisal, arm troops 
 or keep ships of war in time of peace, individuals 
 acting under such laws would be responsible to 
 the xfnited States. They might be treated and 
 punished as traitors or pirates. But congress 
 would and could pass no law against the state ; 
 and for this simple reason, because the state is 
 sovereign. And it is a maxim consecrated in 
 public law as well as common sense and the ne- 
 cessity of the case, that a sovereign is answer- 
 able for his acts only to his God and to his own 
 conscience. 
 
 The constitution and laws made in pursuance 
 of it, — that is, laws within their granted powers, 
 — and all treaties, are the supreme law of the 
 land, art. 6 ; and the judicial power, art. 3, § 1, 
 gives to the supreme court the right of interpret- 
 ing them. But this court is but another name 
 for the United States, and this power necessarily 
 results from their sovereignty ; for the United 
 States would not be truly sovereign unless 
 their interpretation as well as the letter of the 
 law governed. But this power of the court is 
 confined to cases brought before them, and does 
 not embrace principles independent of these 
 cases. They have no power analogous to that of 
 the Roman prsetor of declaring the meaning of 
 the constitution by edicts. Any opinion, how- 
 ever strongly expressed, has no authority beyond 
 the reasoning by which it is supported, and binds 
 no one. But the point embraced in the case is 
 as much a part of the law as though embraced 
 in the letter of the law or constitution, and it 
 binds public functionaries, whether of the states 
 or United States, as well as private persons ; and 
 this of necessity, as there is no authority above a 
 sovereign to which an appeal can be made. 
 
 Another question of great practical importance 
 arose at an early period of our government. The 
 natural tendency of all concentrated power is 
 « to augment itself. Limitations of authority are 
 not to be expected from those to whom power is 
 intrusted ; and such is the infirmity of human 
 nature that those who are most jealous when out 
 of power and seeking oflEice are quite as ready 
 practically to usurp it as any other. A general 
 abrogation commonly precedes a real usurpa- 
 tion, to lull suspicion if for no other purpose. 
 When the constitution was new, and before it 
 had been fully considered, this diversity of 
 opinion was not unnatural, and was the subject 
 of earnest argument, but is, we think, now set- 
 tled, and rightly, both on technical reasoning 
 and on that of expediency. The question is be- 
 tween incidental and constructive or implied 
 powers. The government of the United States is 
 one of delegated power. No general words are 
 used from which a general power can be inferred. 
 Incidental and implied are sometimes used as 
 synonymous ; but in accurate reasoning there is 
 a plain distinction between them, and the latter, 
 in common use, comes nearer to constructive 
 than to incidental. 
 
 The interpretation of powers is familiar to 
 courts of justice, as a great part of landed pro- 
 perty in England and much in this country is 
 held under powers. A more frequent example 
 is that of common agency, as every agent is 
 created by a power. Courts whose professed ob- 
 ject is to carry into effect the intentions of par- 
 ties have, on this subject, established general 
 rules. Among these no one is more immovably 
 fixed than this, that the interpretation is strict 
 and not liberal. 2 Kent, 617 ; 4 id. 330. But 
 
 this strictness does not exclude incidental 
 powers. These are included in a general and 
 express power, both in the common and techni- 
 cal use of language. To take a familiar ex- 
 ample. A merchant of Philadelphia or Boston 
 has a cargo of tea arrive at New York, and by 
 letter authorizes his correspondent to sell it. 
 This is the whole extent of the power. But it 
 necessarily and properly includes that of adver- 
 tising, of removing and exhibiting the goods, 
 etc. But it would not authorize the sale of 
 sugar, a horse, and much less a store or real 
 estate. These powers are not incidental to the 
 general power, nor included in it. Or we may 
 take an example directly from the constitution 
 itself. The United States has power " to lay and • 
 collect taxes, duties, imposts, and excises, to 
 pay the debts and provide for the common de- 
 fence and general welfare of the United States." 
 This includes the power to create and appoint all 
 inferior officers and to do all subordinate acts 
 necessary and proper to execute the general 
 power : as, to appoint assessors, collectors, 
 keepers and disbursers of the public treasures. 
 Without these subordinate powers the general 
 power could not be executed. And when there 
 is more than one mode by which this general 
 power may be executed, it includes all. TTie 
 agent is not confined to any one, unless a par- 
 ticular models pointed out. 4 Wheat. 410. All 
 that the constitution requires is that it should be 
 necessary and proper. One consequence of this 
 doctrine is that there must be a power expressly 
 granted as a stock to bear this incidental 
 power, or otherwise it would be ingrafted on 
 nothing. 
 
 A constructive power is one that is inferred, 
 not from an express power, but from the general 
 objects to be obtained from the grant, and, per- 
 haps, in private powers sometimes from the gen- 
 eral language in which they are granted. The 
 broad distinction between them may be illus- 
 trated by two cases that came beibre the United 
 States Court. The first is one we have already 
 quoted, 4 Wheat. 317. The questionin thatcase 
 was whether the act incorporating the Bank of 
 the United States was constitutional, or whether 
 it lay beyond the limits of the delegated powers 
 and was, therefore, merely void as usurped or an 
 excess of power. The authority to create a cor- 
 poration is nowhere expressly given, and if it ex- 
 ists it must be sought as incidental to some 
 power that is specifically granted. The court 
 decided that it was incidental to that of laying 
 taxes as a keeper and disburser of the public 
 treasure. This power could be executed only by 
 the appointment of agents ; and the United 
 States might as well create an agent for receiv- 
 ing, keeping, and disbursing the public money 
 as appoint a natural person or an artificial one 
 already created. In the case of Osborn vs. The 
 United States Bank, 9 Wheat. 8.59, the general 
 question was presented again, and reargued, and 
 the court reaffirmed their former decision, but, 
 more distinctly than before, adding an important 
 qualification. They might not only create an 
 artificial person, but clothe it with such powers 
 and qualities as would enable it with reasonable 
 convenience to perform its specific duties. The 
 taxes are collected at one end of the country and 
 paid out at another, and the bank instead of re- 
 moving the specie might pay it where collected, 
 and repay themselves by purchasing a bill of ex- 
 change in another place, and this could be con- 
 veniently and economically done only by a power 
 of dealing in exchange generally, which when 
 reduced to its last analysis is merely buying spe- 
 cie at one place and paying for it at another. It 
 is in this way, and this only, that the bank got 
 
UNITED STATES OF AMERICA 768 UNITED STATES OF AMERICA 
 
 its general power of dealing in exchange, — that 
 it is essential and proper to enable it to perform 
 its principal duty, that of transferring the funds 
 of the United States. Thus, the authority to 
 create a bank is incidental to that of receiving, 
 keeping, and paying out the taxes, and is com- 
 prehended under the specific power. The argu- 
 ment is principally derived from Hamilton's re- 
 port on a bank, which proved satisfactory to 
 Washington, as that of Chief-Justice Marshall 
 has to the public at large. 
 
 This is very different from a constructive 
 power which is inferred not as included in any 
 special grant, but from the general tenor of the 
 power and the general objects to be obtained. 
 The objects of the constitution are stated in the 
 preamble, and they are to promote the common 
 weal. But this is followed by the grant of 
 specific powers. And it is the dictate of common 
 sense as well as technical reasoning that this ob- 
 ject is to be obtained by the due exercise of these 
 powers. Where these fall short, none are 
 granted ; and if they are inadequate, the same 
 consequence follows. No one would infer from 
 a power to sell a ship one to sell a store, though 
 the interest of the principal would thereby be 
 promoted. The general power to regulate com- 
 merce is useful, and it is given, and it may be 
 carried to its whole extent by having incidental 
 powers ingrafted upon it. A general power to 
 regulate the descent and distribution of intestate 
 estates and the execution and proof of wills 
 would be on many accounts useful, but it is not 
 gran,ted. The utility of a power is never a ques- 
 tion. It must be expressly granted, or inciden- 
 tal to an express power, — that is, necessary and 
 proper to carry into execution one expressly 
 granted,^or it does not exist. 
 
 The other illustrative case is that of 16 Pet. 
 539-674. It will be found on a careful examina- 
 tion that in this a constructive power only is 
 claimed. The only point involved in the case 
 was the constitutionality of the statute of Penn- 
 sylvania under which Prigg was indicted as a 
 kidnapper. The court decided this to be uncon- 
 stitutional ; and here its judicial functions 
 properly terminated. But to arrive at this con- 
 clusion it was deemed necessary to determine 
 that the general power of arresting and return- 
 ing fugitives from labor and service was intrusted 
 to the United States. It was not pretended that 
 this power was expressly given, nor that it was in- 
 cidental to any that was expressly given, — that is, 
 conducive or proper to the execution of such a 
 power. The court say that "in the exposition of 
 this part of the constitution we shall limit our- 
 selves to the considerations which appropriately 
 and exclusively belong to it, without laying down 
 any rules of interpretation of a more general na- 
 ture." 16 Pet. 610. They do not, as in McCul- 
 loch's case, quote the express authority to which 
 this is incidental ; but a general argument is of- 
 fered to prove that this power is most safely 
 lodged with the United States, and that, there- 
 fore, it has been placed there exclitsively. If the 
 canon of criticism which we have endeavored to 
 establish, and which is generally admitted, is 
 correct, the existence of such a power cannot be 
 inferred from its utility. 
 
 It will be seen, also, that this case stands in 
 strong contrast with that of Martin vs. Hunter, 1 
 Wheat.S04-336,in which the opinion was delivered 
 by the same judge. This was on the validity of 
 the twenty-fifth section of the judiciary act, au- 
 thorizing an appeal from a final judgment of astate 
 court to the supreme court of the United States ; 
 and perhaps in no case has the extent of the 
 powers granted by the constitution been more fully 
 and profoundly examined. In this case the court 
 
 say that "the government of the United States 
 can claim no powers which are not granted by the 
 constitution ; and the powers actually granted 
 must be such as are expressly given, or given by ne- 
 cessary implication ;" — that is, as the reasoning of 
 the court in the whole opinion proves, such as are 
 included in the express powers, and are necessary 
 and proper to carry them into execution. Such 
 was the uniform language of the court whenever 
 this question was presented previously to the re- 
 bellion. The doctrine as now held, however, is 
 somewhat broader, finding its exposition in the 
 decision of the supreme court in the Legal Tender 
 Cases ; 12 Wall. 457. It is there said that it is 
 not indispensable to the existence of any power 
 claimed for the federal government that it can 
 be found specified in the words of the constitu- 
 tion, or clearly and directly traceable to some 
 one of the specified powers. Its existence may 
 be deduced fairly from more than one of the 
 ■ substantial powers expressly defined, or from 
 them all combined. It is allowable to group to- 
 gether any number of them and infer from them 
 all that the power claimed has been conferred. 
 Before any act of congress can be held to be 
 unconstitutional, the court must be convinced 
 that the means adopted were not appropriate or 
 conducive to the execution of any or all of the 
 powers of congress, or of the government, — not 
 appropriate in any degree ; and of the degree, 
 the court is not to judge, but congress. 
 
 We have seen that the constitution of the 
 United States and the laws made in pursuance 
 of it are the supreme law of the land, and that 
 of the true meaning of these the supreme court, 
 which is nothing else than the United States, is 
 the rightful expositor. This necessarily results 
 from their sovereignty. But the United States 
 government is one of delegated powers ; and no- 
 thing is better established, both by^technical 
 reasoning and common sense, than this, — that a 
 delegate can exercise only that power which is 
 delegated to him. All acts beyond are simply 
 void, and create no obligation. It is a maxim 
 also of constitutional law that the powers of 
 sovereignty not delegated to the United States' 
 are reserved to thp states. But in so complex 
 an affair as that of government, controversies 
 will arise as to what is given and what is re- 
 served, — doubts as to the dividing line. When 
 this is the case, who is to decide? This is a 
 difficulty which the convention did not under- 
 take to settle. 
 
 To avoid all controversy as far as possible, the 
 plainest words in granting powers to the United 
 States were used which the language affords. 
 Still further to preclude doubts, the convention 
 added, at the close of the seventeen powers ex- 
 pressly given, this clause : "To make all laws 
 which shall be necessary and proper for carrying 
 into execution the foregoing powers, and all 
 other powers vested by Siis constitution in/tlie 
 government of the United States or in any de- 
 partment or ofiBcer thereof." Art. 1, § 8. This 
 clause contains no grant of power. But in the 
 Articles of Confederation, which was a compact 
 between the states as independent sovereignties, 
 the word expkesslt was used; and a doubt 
 troubled congress how far incidental powers were 
 included. Articles of Confederation, art. 2. This 
 clause was introduced to remove that doubt. It 
 covered Incidental, but not constructive, powers. 
 Strange as it may appear, both those who wished 
 larger powers granted to the United States, and, 
 in the language of that day, thought that things 
 must be woi-se before they could be better, and 
 those who honestly feared that too much power 
 was granted, fixed their eyes on this clause; 
 and perhaps no part of the constitution gave 
 
UNITED STATES OF AMERICA 769 
 
 UNIVERSAL AGENT 
 
 greater warmth to the oontroverey than this. To 
 disarm the designing and counteract the fears of 
 the timid, the tenth amendment was offered by 
 the friends of the constitution. But so jealous 
 were parties of each other that It was offered In 
 the convention of Massachusetts by Grovernor 
 Hancock, who favored and had the confidence 
 of the opposition, though It was in the hand- 
 writing of Mr. Parsons, afterwards chief-justice. 
 Life of Chief-Justice Parsons. That amendment 
 Is in these words : " The powers not delegated to 
 the United States by the constitution, nor pro- 
 hibited to the states, are reserved to the states 
 respectively, or the people." Were the words of 
 the original constitution and the amendment 
 both stricken out. It would leave the true con- 
 struction unaltered. Story, Const. § 1332. Both 
 are equally nugatory in fact ; but they have an 
 important popular use. The amendment for- 
 mally admits that certain rights are reserved to 
 the states, and these rights must be sovereign. 
 
 We have seen that, within their limited powers, 
 the United States are the natural expositors of 
 the constitution and laws ; that when a case 
 affecting individual rights arises, the supreme 
 court stands for the United States, and that they 
 have the sole right to explain and enforce the 
 laws and constitution. But their power is con- 
 fined to the facts before them, and they have no 
 power to explain them in the form of an edict 
 to affect other rights and cases. Beyond these 
 powers the states are sovereign, and their acts 
 are equally unexaminable. Of the separating 
 line between the powers granted and the powers 
 withheld, the constitution provides no judge. 
 Between sovereigns there can be no common 
 judge, but an arbiter mutually agreed upon. 
 If that power is given to one party, that may 
 draw all power to itself, and it establishes a 
 relation not of equal sovereignties, but of sove- 
 reign and subject. On this subject the consti- 
 tution is silent. The great men who formed it 
 did not undertake to solve a question that in its 
 own nature could not be solved. Between equals 
 it made neither superior, but trusted to the mu- 
 'tual forbearance of both parties. A larger con- 
 fidence was placed in an enlightened public 
 opinion as the final umpire ; and not until the 
 war of the rebellion was this conflict between 
 the two sovereignties finally settled by the ultima 
 ratio regnm. The status of the states and their 
 political rights under the constitution have been 
 considered at large by the supreme court in the 
 case of Texas vs. White, 7 Wall. 700. The stu- 
 dent of constitutional law will find in the opi- 
 nion of the court a masterly discussion of the 
 delicate question of the relations of the state 
 and federal governments. It is there held that 
 authority to suppress rebellion is found in the 
 .constitutional power to suppress insurrection, 
 and carry on war ; authority to provide for the 
 restoration of state governments under the con- 
 stitution when suspended and overthrown is de- 
 rived from the obligation of the United States 
 to guarantee to every state in the Union a re- 
 publican form of government. The unity of 
 the states never was a purely artificial and arbi- 
 trary relation. It began among the colonies, 
 and grew out of common origin, mutual sym- 
 pathies, kindred principles, similar interests, 
 and geographical relations. It was confirmed 
 and strengthened by the necessities of war, and 
 received definite form and character and sanc- 
 tion from the Articles of Confederation. By 
 these the Union was solemnly declared to be 
 perpetual ; and when these articles were found 
 to be inadequate to the exigencies of the country, 
 the constitution was ordained " to form & more 
 perfect union." But the perpetuity and indls- 
 VOL. II.— 49 
 
 solubility of the Union by no means imply the 
 loss of distinct and individual existence, or of 
 the right of self-government by the states. On 
 the contrary, it may, not unnecessarily, be said 
 that the preservation of the states and the main- 
 tenance of their government are as much within 
 the design and care of the constitution as the 
 preservation of the Union and the maintenance 
 of the national government. The constitution, 
 in all its provisions, looks to an Indestructible 
 Union composed of indestructible states. 
 
 UNITY. An agreement or coincidence of 
 certain qualities in the title of a joint-estate 
 or an estate in common. 
 
 In a joint-estate there must exist four 
 unities : that of interest, for a joint-tenant 
 cannot be entitled to one period of duration or 
 quantity of interest in lands, and the other to 
 a different ; one cannot be tenant for life and 
 the other for years : that of title, and, there- 
 fore, their estates must be created by one and 
 the same act ; that of time, for their estates 
 must be vested at one and the same period, 
 as well as by one and the same title ; and, 
 lastly, the unity of possession : hence joint- 
 tenants are seised per my et per tout, or by 
 the half or moiety and by all : that is, each 
 of them has an entire possession as well of 
 every parcel as of the whole. 2 Bla. Com. 
 179; Co. Litt. 188. 
 
 Coparceners must have the unities of inte- 
 rest, title, and possession. 
 
 In tenancies in common, the unity of pos- 
 session is alone required; 2 Bla. Com. 192. 
 See Estate in Common ; Estate of Co- 
 parcenary ; Estate of Joint-Tenancy ; 
 Tenant ; Tud. L. Cas. R. P. 876. 
 
 UNITY OP POSSESSION. This term 
 
 is used to designate the possession by one 
 person of several estates or rights. For ex- 
 ample, a right to an estate to which an ease- 
 ment is attached, or the dominant estate, and 
 to an estate which an easement incumbers, or 
 the servient estate, in such case the easement 
 is extinguished; 3 Mas. 172; Poph. 166; 
 Latch, 153. And see Cro. Jac. 121. .But a 
 distinction has been made between a thing 
 that has its being by prescription, and one that 
 has its being ex jure naturce : in the former 
 case unity of possession will extinguish the 
 easement ; in the latter, for example, the 
 case of a watercourse, the unity will not ex- 
 tinguish it ; Pothier, Contr. 166. 
 
 By the Civil Code of Louisiana, art. 801, 
 every servitude is extinguished when the 
 estate to which it is due and the estate 
 owing it are united in the same hands. 
 But it is necessary that the whole of the two 
 estates should belong to the same proprietor ; 
 for if the owner of one estate only acquires 
 the other in part or in common with another 
 person, confusion does not take effect. See 
 Merger. 
 
 UNIVERSAL AGENT. One ap- 
 pointed to do all the acts which the princi- 
 pal can personally do, and which he may law- 
 fully delegate the power to another to do. 
 Such an agency may potentially exist ; but 
 
UNIVERSAL LEGACY 
 
 770 UNLIQUIDATED DAMAGES 
 
 it is difficult to conceive of its practical ex- 
 istence, since it puts the agent completely in 
 the place of the principal ; Story, Ag. § 21. 
 
 UNIVERSAL LEGACY. In Civil 
 JjiLW. A testamentary disposition by which 
 the testator gives to one or several persons 
 the whole of the property which he leaves at 
 his decease. La. Civ. Code, art. 1606 ; Code 
 Civ. art. 1003 ; Pothier, Donations testa- 
 mentaires, c. 2, s. 1, § 1. 
 
 UNIVERSAL PARTNERSHIP. The 
 name of a species of partnership by which 
 all the partners agree to put in common all 
 their property, universoruvi bonorum, not 
 only what they then have, but also what they 
 shall acquire. Pothier, Du Contr. de 
 Soci6t6, n. 29. 
 
 In Louisiana, universal partnerships are 
 allowed : but property which may accrue to 
 one of the parties after entering into the 
 partnership, by donation, succession, or 
 legacy, does not become common stock, and 
 any stipulation to that effect, previous to the 
 obtaining the property aforesaid, is void. 
 La. Civ. Code, art. 2829-2834. See Part- 
 nership. 
 
 UNIVERSAL REPRESENTATION. 
 In Scotch Law; The heir universally 
 represents his ancestor, i.e. is responsible for 
 his debts. Originally, this responsibility ex- 
 tended only to the amount of the property to 
 which he succeeded ; but afterwards certain 
 acts on the part of the heir were held sufficient 
 to make him liable for all the debts of the 
 ancestor. Bell, Diet. Passive Titles. 
 
 UNIVBRSITAS JURIS (Lat.). In 
 Civil Lavy. A quantity of things of vari- 
 ous kinds, corporeal and incorporeal, taken 
 together as a whole, e.g. an estate. It is 
 used in contradistinction to universitas facti, 
 which is a whole made up of corporeal units. 
 Mackeldey, Civ. Law, § 149. 
 
 UNIVBRSITAS RERUM (^Lat.). In 
 Civil La-w. Several things not mechanically 
 united, but which, taken together, in some 
 legal respects are regarded as one whole. 
 Mackeldey, Civ. Law, § 149. 
 
 UNIVERSITY. The name given to 
 certain societies or corporations which are 
 seminaries of learning where youth are sent to 
 flnish their education. Among the civilians, 
 by this term is understood a corporation. 
 
 UNIVERSITY COURT. See Chan- 
 cellor's Courts in the Two Univer- 
 sities. 
 
 UNJUST. That which is done against 
 the perfect rights of another ; that which 
 is against the established law ; that whioh is 
 opposed to a law which is the test of right 
 and wrong. 1 Toul. tit. pr61. n. 5 ; Aust. 
 Jur. 276, n.; Hein. Leg. El. § 1080. 
 
 UNKNOWN. When goods have been 
 stolen from some person unknown, they may 
 be so described in the indictment ; but if the 
 owner be really known, an indictment alleg- 
 
 ing the property to belong to some person 
 unknown is improper. 2 East, PI. Cr 651 ■ 
 1 Hale, PL Cr. 512; 8 C. & P. 778; 12 
 Pick. 174. 
 
 In an indictment, where the name of the de- 
 fendant is unknown, and he refuses to disclose 
 it, lie may be described as a person whose name 
 Is to the jurors unknown, but who is personally 
 brought before them by the keeper of the prison • 
 7 Ired. 27 ; but an indictment against him as a 
 person to the jurors unknown, without something 
 to ascertain whom the grand jury meant to desi^ 
 nate, will be insufficient; R. & B. 489. Tte 
 practice is to indict the defendant by a specific 
 name, as, John No-name, and if he pleads in 
 abatement, to send in a new bill, inserting the 
 real name, which he then discloses, by which he 
 is bound. This course is in some states pre- 
 scribed by statute ; 5 Iowa, 484. So matters 
 of fact not vital to the accusation, may be proxi- 
 mately described ; 53 N. H. 484; 135 Mass. .S87 
 394. See Whart. Cr. PI. & Pr. §§ 104, HI, 156! 
 See Indictment. 
 
 UNLAGE (Sax.). An unjust law. Cowel. 
 
 UNLAVr. In Scotch Law. A wit- 
 ness was formerly inadmissible who was not 
 worth the king's unlaw, — ». e. the sum of £10 
 Scots, then the common fine for absence 
 from court and for small delinquencies. Bell, 
 Diet. 
 
 UNLATVFUL. That which is contrary 
 to law. 
 
 There are two kinds of contracts which are 
 unlawful, — those which are void, and those 
 which are not. When the law expressly pro-^ 
 hibits the transaction in respect of which 
 the agreement is entered into, and declares 
 it to be void, it is absolutely so ; 3 Binn. 533. 
 But when it is merely prohibited, without 
 being made void, although unlawful it is not 
 void; 12 S. & R. 237; 8 East, 236; 3 
 Taunt. 244. See Condition ; Void. 
 
 UNLAWFUL ASSEMBLY. In Crim- 
 inal Law. A disturbance of the puMic 
 peace by three or more persons who meet to- 
 gether with an intent mutually to assist each 
 other in the execution of some unlawful enter- 
 prise of a private nature, with force and vio- 
 lence. If they move forward towards its exe- 
 cution, it is then a rout ; and if they actually 
 execute their design, it amounts to a riot ; 4 
 Bla. Com. 140 ; Hawk. PL Cr. c. 65, s. 9 ; 
 Comyns, Dig. Forcible Entry (D 10) ; Viner, 
 Abr. Riots, etc. (A). 
 
 UNLAWFULLY. In Pleading. This 
 word is frequently used in indictments in the 
 description of the offence: it is necessary 
 when the crime did not exist at common law, 
 and when a statute, in describing an offence 
 which it creates, uses the word ; 1 Mood. C. 
 C. 339 ; but is unnecessary whenever the 
 crime existed at common law and is mani- 
 festly illegal : 1 Chit. Cr. L. *241 ; 2 RoUe, 
 Abr. 82 ; Bac. Abr. Indictment (G 1) ; 1 VI- 
 199; 2 id. 120; L. R. 2 Cr. Cas. Res. 161. 
 
 UNLIQUIDATED DAMAGES. Such 
 damages as are unascertained. In general, 
 such damages cannot be set off. No interest 
 will be allowed on unliquidated damages ; 1 
 
UNQUES 
 
 771 
 
 USAGE 
 
 Bouv. Inst. a. 1108. See Liquidated Dam- 
 ages. 
 
 UNQUES (L. Fr.). Still; yet. This 
 barbarous word is frequently used in pleas : 
 as, Ne unques executor, Ne unques guardian, 
 Ne unques accouple ; and the like. 
 
 UNSEATED LAND. A phrase used in 
 Pennsylvania to designate uncultivated land 
 subject to taxation. A tract of land ceases 
 to be unseated as soon as it is actually occu- 
 pied with a view to permanent residence ; 
 7 W. & S. 248 ; 5 Watts, 382. See 1 Penny- 
 packer (Pa.) 57. 
 
 UNSEA'WORTHY SHIP. A ship- 
 owner's warranty of seaworthiness implies 
 that his vessel is in a fit condition to proceed 
 on the voyage for which she is chartered with 
 safety to her cargo and crew. Unseaworthi- 
 ness may arise from lack of necessary charts, 
 nautical instruments, cordage, sails, anchors, 
 or provisions ; from defect or rottenness in 
 timbers; if a steamer, from defective or insuf- 
 ficient machinery; or from being under- 
 manned; Foard, Merch. Shipp. 339-350; 
 Flanders, Shipp. 62-84. 
 
 See Seaworthiness. 
 
 UNSOLEMN ■WAR. That war which 
 is not carried on by the highest power in the 
 states between which it exists, and which 
 lacks the formality of a declaration. Gro- 
 tius, de Jure Bel. et Pac. 1. 1, u. 3, § 4. A 
 formal declaration to the enemy is now dis- 
 used, but there must be a formal public act 
 proceeding from the competent source : with 
 us, it has been said, it must be an act of con- 
 gress; 1 Kent, 55. 
 
 UNSOUND MIND, UNSOUND MEM- 
 ORT. These words have been adopted in 
 several statutes, and sometimes indiscrimi- 
 nately used, to signify not only lunacy, 
 which is periodical madness, but also a per- 
 manent adventitious insanity as distinguished 
 from idiocy. 1 Ridg. P. C. 518 ; 3 Atk. 171. 
 
 The term unsound mind seems to have 
 been used in those statutes in the same sense 
 as insane ; but they have been said to import 
 that the party was in some such state as was 
 contradistinguished from idiocy and from 
 lunacy, and yet such as made him a proper 
 subject of a commission to inquire of idiocy and 
 lunacy ; Shelf. Lun. 5 ; Eay, Med. Jur. pr61. 
 § 8 ; 8 Ves. 66 ; 12 id. UT, 19 id. 286 ; 1 
 Beck, Med. Jur. 573; Coop. Ch. Cas. 108. 
 Insanity. 
 
 UNSOUNDNESS. See Soundness. 
 
 UNTIL. When a charter continues the 
 incorporation of a company until a day named, 
 until is exclusive in its meaning, unless the 
 context show that the contrary is intended ; 
 17 N. Y. 502; 120 Mass. 94; Aug. & A. 
 Corp. § 778 a. 
 
 UNWHOLESOME FOOD. Food not 
 fit to be eaten ; food which if eaten would be 
 injurious. 
 
 Although the law does not, in general, con- 
 sider a sale to be a warranty of goodness of 
 
 the quality _ of a personal chattel, yet it is 
 otherwise with regard t-o food and liquor when 
 sold for consumption ; 1 RoUe, Abr. 90, pi. 
 1, 2. See Adulteration ; Health. 
 
 UPLIFTED HAND. When a man ac- 
 cused of a crime is arraigned, he is required 
 to raise his hand, probably in order to iden- 
 tify the person who pleads. Perhaps for the 
 same reason when a witness adopts a par- 
 ticular mode of taking an oath, as, when he 
 does not swear upon the gospel, hut by Al- 
 mighty God, he is requested to hold up his 
 hand. 
 
 UPPER BENCH. The king's bench 
 was so called during Cromwell's protectorate, 
 when Rolle was chief-justice. 3 Bla. Com .202. 
 
 URBAN SERVITUDES. All servi- 
 tudes are established either for the use of 
 houses or for the use of lands. Those of the 
 first kind are called urban servitudes, whether 
 the buildings to which they are due be situ- 
 ated in the city or in the country. Those of 
 the second kind are called rural servitudes. 
 
 The principal kinds of urban servitudes are 
 the following : the right of support ; that of 
 drip ; that of drain, or of preventing the 
 drain ; that of view or of lights, or of prevent- 
 ing the view or lights from being obstructed ; 
 that of raising buildings or walls, or of prevent- 
 ing them from being raised ; that of passage; 
 and that of drawing water. See 3 TouUier, 
 441 ; La. Civ. Code, arts. 710, 711. 
 
 URBS (Lat.). In Civil Law. A walled 
 city. Often used for civitas. Ainsworth, 
 Diet. It is the same as oppidum, only larger. 
 Urbs, or uris aurea, meant Rome. Du Cange. 
 In the case of Rome, urbs included the 
 suburbs. Dig. 50. 16. 2. pr. It is derived 
 from urbum, a part of the plough by which 
 the walls of a city are £urst marked out. 
 Ainsworth, Diet. 
 
 URE. Custom, habit. Toml. 
 
 USAGE. Uniform practice. 
 
 This term and custom are now used inter- 
 changeably, though custom seems to have been 
 originally confined to local usages immemori- 
 ally existing ; Browne, Us. & Cust. 13. 
 
 A usage must be established ; that is it 
 must be known, certain, uniform, reasonable, 
 and not contrary to law ; but it may be of 
 very recent prigin ; 3 Wash. C. C. 150; 5 
 Binn. 287; 9 Pick. 426; 4 B. & Aid. 210; 
 3 Duer, 264; 15 How. 539 ; 69 Penn. 374 ; 
 80 111. 493 ; 49 N. Y. 464. 
 
 The usages of trade afford ground upon 
 which a proper construction may be given to 
 contracts. By their aid the indeterminate in- 
 tention of parties and the nature and extent 
 of their contracts arising from mere implica- 
 tions or presumptions, and acts of an equivo- 
 cal character may be ascertained; and the 
 meaning of words and doubtful expressions 
 may become known ; 13 Pick. 182; 2 Sumn. 
 569 ; 2 Gill & J. 136 ; 5 Wheat. 326 ; 2 C. 
 & P. 525 ; 1 Caines, 45 ; 1 N. & M'C. 519 ; 
 5 Ohio, 436 ; 6 Pet. 715; 15 Ala. 123 ; 26 
 
USANCE 
 
 772 
 
 USE 
 
 Vt. 136 ; 13 Wis. 198 ; 15 Ark. 491 ; 67 N. 
 Y. 338 ; 25 Me. 401. 
 
 Modern English cases incline to extend the 
 functions of usages, but in America the au- 
 thorities vary greatly ; Lawson, Us. & Cust. 
 25; 7 E. &B. 266; 32Vt. 616; 15 Mich. 
 206; 2 Suinn. 377 ; 10 W. N. C. Pa. 347. 
 
 See Custom ; Lawson, Browne, Us. & 
 Cust. 
 
 tJSANCE. In Commercial Law. The 
 
 time which, by usage or custom, is allowed in 
 certain countries for the payment of a biU of 
 exchange. Pothier, Contr. du Change, n. 15. 
 
 The time of one, two, or three months after 
 the date of the bill, according to the custom of 
 the places between which the exchanges run. 
 
 Doable or treble is double or treble the 
 usual time, and half usance is half the time. 
 Where it is necessary to divide a month 
 upon a half usance (which is the case when 
 the usance is for one month or three), the 
 division, notwithstanding the diiference in 
 the length of the months, contains fifteen 
 days. Byles, Bills, *80, *205. 
 
 USE. A confidence reposed in' another, 
 who was made tenant of the land, or terre 
 tenant, that he would dispose of the land ac- 
 cording to the intention of the cestui que use, 
 or him to whose use it was granted, and suf- 
 fer him to take the profits. Plowd. 352; 
 Gilb. Uses, 1 ; Cornish, Uses, 13 ; Saund. 
 Uses, 2; Co. Litt. 272 6; 1 Co. 121; 2Bla. 
 Com. 328. 
 
 A right in one person, called the cestui que 
 use, to take the profits of land of which 
 another has the legal title and possession, 
 together with the duty of defending the same 
 and of making estates thereof according to 
 the direction of the cestui que use. 
 
 Uses have been said to have been derived from 
 tbefldei commissa of the Soman law; but see 
 Tbust. It was the duty of a Roman magistrate, 
 the praetor fidei eommissarms, whom Bacon 
 terms the particular chancellor for uses, to en- 
 force the observance of this confidence. Inet. 2. 
 23. 2. They were introduced into England by 
 the ecclesiastics in the reign of Edward III., be- 
 fore 1377, for the purpose of avoiding the stat- 
 utes of mortmain ; and the clerical chancellors 
 of those times held them to be fidei commissa, 
 and binding in conscience. To obviate many in- 
 
 - conveniences and difficulties which had arisen 
 out of the doctrine and introduction of uses, the 
 Statute of 27 Henry VIII. c. 10, commonly 
 called the Statute of Uses, or, in conveyances 
 and pleadings, the statute for transferring uses 
 into possession, was passed. It enacts that 
 " when any person shall be seised of lands, etc. 
 to the use, confidence, or trust of any other per- 
 son or body politic, the person or corporation 
 entitled to the use in fee-simple, fee- tail, for life, 
 
 » or years, or otherwise, shall from thenceforth 
 stand and he seised or possessed of the land, etc. 
 of and in the like estate as they have in the use, 
 trust, or confidence ; and that the estates of the 
 persons so seised 1o the uses shall be deemed to 
 he in him or them that have the use, in such 
 quality, manner, form, and condition as they 
 had before in the use." The statute thus exe- 
 cutes the use, — that is, it conveys the possession 
 to the use, and transfers the use to the posses- 
 
 sion, and, in this manner, making the cegtui am 
 use complete owner of the lands and tenements 
 as well at law as in equity ; S Bla. Com. 833. ' 
 
 A modem use has, therefore, been defined to 
 be an estate of right which is acquired through 
 the operation of the statute of 27 Henry VIII. o. 
 10 ; and which, when it may take eflect accord- 
 ing to the rules of the common law, is called the 
 legal estate, and when it may not is denominated 
 a use, with a term descriptive of its modifica- 
 tion ; Cornish, Uses, 35. 
 
 The common-law Judges decided, in the con- 
 struction of this statute, that a use could not be 
 raised upon a use ; Dy. 155 (A) ; and that on a 
 feoflTment to A and his heirs to the use of B and 
 his heirs in trust for C and his heirs, the statute 
 executed only the first use, and that the second 
 was a mere nullity. The judges also held that 
 as the statute mentioned only such persons as 
 were seised to the use of others, it did not extend 
 to a term of years, or other chattel interests, of 
 which a termer is not seised but only possessed. 
 Bacon, Law Tr. 335; Poph. 76 ; Dy. 369; 2 Bla. 
 Com. 336. The rigid literal construction of the 
 statute by the courts of law again opened the 
 doors of the chancery courts ; 1 Madd. Ch. Pr. 448. 
 
 Uses and trusts are often spoken of together 
 by the older and some modem writers, the distinc- 
 tion being those trusts which were of a permanent 
 nature and required no active duty of the trus- 
 tee being called uses ; those in which the trustee 
 had an active duty to perfoi-m, as, the payment 
 of debts, raising portions, and the like, being 
 called special or active trusts, or simply trusts ; 1 
 Spence, Eq. Jur. 448. 
 
 For the creation of a use, a consideration 
 either valuable, as, money, or good, as rela- 
 tionship in certain degrees, was necessary j 
 3 Swanst. 591; 7 Co. 40 ; 17 Mass. 257; 4 
 N. H. 229, 397 ; 14 Johns. 210. See Ke- 
 SULTING Use. The property must have been 
 in esse, and such that seisin could be given ; 
 Crabb, R. P. § 1610; Cro. Eliz. 401. Uses 
 were alienable, although in many respects re- 
 sembling choses in action, which were not as- 
 signable at common law ; 2 Bla. Com. 331 : 
 when once raised, it might be granted or de- 
 vised in fee, in tail, for life, or for years ; 1 
 Spence, Eq. Jur. 455. 
 
 The effect of the Statute of Uses was much 
 restricted by the construction adopted by the 
 courts : it practically resulted, it has been 
 said, in the addition of these words, to the 
 use, to every conveyance; Will. R. P. 133. 
 The intention of the statute was to destoy 
 the estate of the feoffee to use, and to transfer it 
 by the very act which created it to the cestvi 
 que use, as if the seisin or estate of the feofiee, 
 together with the use, had, unoflatu, passed 
 from the feoffor to the cestui que use. A 
 very full and clear account of the history and 
 present condition of the law of uses is given 
 by Professor Washburn, 2 Real Prop. 91- 
 156, which is of particular value to the Ameri- 
 can student. See, as to a use upon a use, 
 Tudor, Lead. Cas. on Real Prop. 836. Con- 
 sult, also. Spence, Eq. Jur. ; Bispham, Eq.; 
 Cornish, Uses ; Bac. Law Tr. ; Greenl. Cruise, 
 Dig. ; see Charitable Uses ; Teusts. 
 
 In its untechnical sense, the word use has 
 been variously construed ; 20 Ind. 398 ; 69 
 Me. 682 ; 107 Mass. 290, 324 ; 11 Rich. 621; 
 
USE AND OCCUPATION 
 
 773 
 
 USURY 
 
 thus, "to use a port" means to enter it, so 
 lis to derive advantage from its protection ; 
 48 N. Y. 624. 
 
 In Civil Law. A right of receiving so 
 much of the natural profits of a thing as is 
 necessary to daily sustenance. It differs from 
 usufruct, which is a right not only to use, but 
 to enjoy. 1 Bro. Civ. Law, 184. 
 
 USE AND OCCUPATION. When a 
 contract has been made, either by express or 
 implied agreement, for the use of a house or 
 other real estate, where there was no amount 
 of rent fixed and ascertained, the landlord 
 can recover a reasonable rent in an action of 
 assumpsit for use and occcupation; 2 Aik. 
 252 ; 7 J. J. Marsh. 6 ; 4 Day, ^8 ; 13 
 Johns. 240, 297 ; 4 Hen. & M. 161 ; 15 Mass. 
 270 ; 10 S. & E. 251. This is under the 
 Stat, of Westm. 2. 
 
 The action for use and occupation is founded 
 not on a privity of estate, but on a privity of 
 contract; 3 S. & R. 500; therefore it will 
 not lie where the possession is tortious ; 2 N. 
 &M'C. 156; 3 S. & R. 500; 6 N. H. 298; 6 
 Ohio, 371 ; 14 Mass. 95. It will lie for the 
 occupation of land in another state ; 3 S. & 
 R. 502. See Jacks. & G. Landl. & T. 178. 
 
 USEFUL. That which may be put into 
 beneficial practice. 
 
 The Patent Act of Congress of July 8, 
 1870, sect. 6, in describing the subjects of 
 patents, mentions " new and useful art," and 
 " new and useful improvement." To entitle 
 the inventor to a patent, his invention must, 
 to a certain extent, be beneficial to the com- 
 munity, and not be for an unlawful object, or 
 frivolous, or insignificant; 1 Mas. 182; 1 
 Pet. C. C. 322; Baldw. 303 ; 14 Pick. 217; 
 Paine, 203. See Patent. 
 
 USER. The enjoyment of a thing. 
 
 USES, STATUTE OP. See Teusts ; 
 Uses. 
 
 USHER. This word is said to be derived 
 from huissier, and is the name of an inferior 
 officer in some English courts of law. Archb. 
 Pr. 25. The office of usher of the court of 
 chancery was abolished is 1852. 
 
 USQUE AD MEDIUM PILUM VISi 
 (Lat.). To the middle thread of the way. 
 See Ad Medium Filum ; 7 Gray, 22. 
 
 USUCAPTION, or USUCAPION 
 (Lat. usUcaptio, or usucapio). In Civil 
 Law. The manner of acquiring property in 
 things by the lapse of time required by law. 
 
 It differs from prescription, which has the 
 same sense, and means, in addition, the manner 
 of acquiring and losing, by the effect of time 
 regulated by law, all sorts of rights and actions. 
 Merlin, Rdpert. Prescription ; Ayliffe, Pand. 330 ; 
 Vattel, b. a, c. 3, § 140. See Pkesckiption. 
 
 USUFRUCT. In Civil Law. The right 
 of enjoying a thing the property of which is 
 vested in another, and to draw from the same 
 all the profit, utility, and advantage which it 
 may produce, provided it be without ajtering 
 the substance of the thing. 
 
 Perfect usufruct is of things which the 
 usufructuary can enjoy without altering their 
 substance, though their substance may be 
 diminished or deteriorated naturally by time 
 or by the use to which they are applied ; as, 
 a house, a piece of land, animals, furniture, 
 and other movable effects. 
 
 Imperfect or quasi usufruct is of things 
 which would be useless to the usufructuary if 
 he did not comsume and expend them or 
 change the substance of them : as, money, 
 grain, liquors. In this case the alteration may 
 take place ; Pothier, Tr. du Douaire, n. 194 ; 
 Ayliffe, Pand. 319 ; Pothier, Pand. tom. 6, 
 p. 91. 
 
 USUFRUCTUARY. In CivU Law. 
 One who has the right and enjoyment of a 
 usufruct. 
 
 Domat, with his usual clearness, points out 
 the duties of the usufructuary, which are — 
 to make an inventory of the things subject to 
 the usufruct, in the presence of those having 
 an interest in them ; to give security for their 
 restitution when the usufruct shall be at an 
 end ; to take good care of the things subject 
 to the usufruct ; to pay all taxes and claims 
 which arise while the thing is in his posses- 
 sion as a ground-rent ; and to keep the thing 
 in repair at his own expense. Lois Civ. liv. 
 1, t. 11, B. 4. See Estate foe Life. 
 
 USURA lOARITIMA. See Foenvs 
 Nauticum. 
 
 USURPATION. Torts. The unlawful as- 
 sumption of the use of property which belongs 
 to another ; an interruption or the disturbing 
 a man in his right and possession. Toml. 
 
 According to Lord Coke, there are two 
 kinds of usurpation : first, when a stranger, 
 without right, presents to a church and his 
 clerk is admitted; and, second, when a sub- 
 ject uses a franchise of the king without lawful 
 authority. Co. Litt. 277 6. 
 
 In Governmental Law. The tyrannical 
 assumption of the government by force, con- 
 trary to and in violation of the constitution of 
 the country. 
 
 USURPED POWER. In Insurance. 
 
 An invasion from abroad, or an internal rebel- 
 lion, where armies are drawn up against each 
 other, when the laws are silent, and when the 
 firing of towns becomes unavoidable. These 
 words cannot mean the power of a common 
 mob; 2 Marsh. Ins. 390. By an article of 
 the printed proposals which are considered as 
 making a part of the contract of insurance, it 
 is provided that " no loss of damage by fire, 
 happening by any invasion, foreign enemy, or 
 any military or usurped power whatsoever, 
 will be made good by this company." 
 
 USURPER. One who assumes the right 
 of government by force, contrary to and in 
 violation of the constitution of the country. 
 Toul. Droit Civ. n. 32. 
 
 USURY. The excess over the legal rate 
 chavired to a borrower for the use of money. 
 Originally, the word was applied to all inte- 
 
USURY 
 
 774 
 
 USURY 
 
 rest reserved for the use of mooey ; and in 
 the early ages taking such interest was not 
 allowed. In the later Roman law usury was 
 sanctioned ; .and it is said that taking usury 
 was not an offence at common law ; Tyler, 
 Usury, 64; but see Ord. Usury, 17. 
 
 Unless there is a law limiting the rate of 
 interest that can be charged for money, there 
 can be no usury ; 31 Ark. 484. 
 
 " The shifts and devices of usurers to evade 
 the statutes against usury have taken every 
 shape and form that the wit of man could de- 
 vise, but none have been allowed to prevail. 
 Courts have been astute in getting at the true 
 intent of the parties and giving effect to the 
 statute ;" 62 K. Y. 346. Thus the supreme 
 court of Vermont decided where the lender 
 obtained from the borrower, before the loan 
 was made, a release under seal of all claims 
 and demands against himself, that the bor- 
 rower might recover back usurious interest, 
 on the ground that the release, to be effective, 
 must be free from the element of pressure ; 
 15 C. L. J. 341 ; 72 Penn. 54. 
 
 There must be a loan in contemplation of 
 the parties; 7 Pet. 109; 1 Iowa, 252; 14 
 N. Y. 93 ; 6 Ind. 232 ; and if there be a loan, 
 however disguised, the contract will be usuri- 
 ous, if it be so in other respects. Where a 
 loan was made of depreciated bank-notes, to 
 be repaid in sound funds, to enable the bor- 
 rower to pay a debt he owed, dollar for dol- 
 lar, it was considered as not being usurious ; 
 1 Meigs, 585. The bond fide sale of a note, 
 bond, or other security at a greater discount 
 than would amount to legal interest is not per 
 se a loan, although the note may be indorsed 
 by the seller and he remains responsible ; 9 
 Pet. 103; 1 Iowa, 30; 6 Ohio St. 19; 29 
 Miss. 212 ; 10 Md. 57. But if a note, bond, 
 or other security be made with a view to 
 evade the laws of usurj-, and afterwards sold 
 for a less amount than the interest, the trans- 
 action will be considered a loan; 15 Johns. 
 44 ; 12 S. & R. 46 ; 6 Ohio St. 19 ; 4 Jones, 
 No. C. 399 ; and a sale of a man's own note 
 indorsed by himself will be considered a loan. 
 It is a general rule that a contract which in 
 its inception is unaffected by usury can never 
 be invalidated by any subsequent usurious 
 transaction; 7 Pet. 109; 10 Md. 57. On the 
 other hand, when the contract was originally 
 usurious, and there is a substitution by a new 
 contract, the latter will generally be consid- 
 ered usurious ; 15 Mass. 96. 
 
 There must be a contract for the return of 
 the money at all events ; for if the return of 
 the principal with interest, or the principal 
 only, depend upon a contingency, there can 
 be no usury; 21 Am. L. Reg. N. s. 715 ; 1 
 Wall. 604 ; but if the oontmgency extend 
 only to interest, and the principal be beyond 
 the reach of hazard, the lender will be guilty 
 of usury if he receive interest beyond the 
 amount allowed by law ; but see these cases. 
 Where the principal is put to hazard in in- 
 surances, annuities, and bottomry, the parties 
 may charge and receive greater interest than 
 
 is allowed by law in common cases, and the 
 transaction will not be usurious ; Ord, Usury 
 23, 39, 64 ; 2 Pet. 637. See 18 Wall. 375. 
 
 To constitute usury, the borrower must not 
 only be obliged to return the principal at all 
 events, but more than lawful interest : this 
 part of the agreement must be made with 
 full consent and knowledge of the contract- 
 ing parties ; 3 B. & P. 154. When the con- 
 tract is made in a foreign country, the rate 
 of interest allowed by the laws of that country 
 may be charged, and it will not be usurious, 
 although greater than the amount fixed by 
 law in this ; Story, Confl. of Laws, § 292. 
 Parties may contract for interest according to 
 the place of the contract or the place of per- 
 formance; 1 Wall. 298; 12 id. 226; 64 N. 
 C. 33. Where there is no agreement made, 
 the law of the place of the contract governs, 
 in the absence of any intent to evade the 
 usury laws ; 57 Ga. 370 ; 72 N. Y. 472 ; 32 
 Ind. 16. A note made, dated, and payablein 
 New York, without intent of maker that it 
 should be elsewhere discounted, if nego- 
 tiated in another state at a rate of interest 
 lawful there, but excessive in New York, is 
 usurious; 77 N. Y. 573. 
 
 To constitute usury, both parties must be 
 cognizant of the facts which make the trans- 
 action usurious ; 44 Barb. 521 ; but a mistake 
 in law will not protect the parties ; 9 Mass. 
 49 ; though a miscalculation will, it seems ; 
 2 Cow. 770. An agreement by a mortgagor 
 to pay taxes on the mortgage debt is not neces- 
 sarily usurious ; 24 Md. 62 ; nor is a clause 
 in a bill of exchange, providing attorney fees 
 for collection ; 34 Ind. 149 ; and so of a 
 mortgage; 30 Iowa, 131 ; s. c. 6 Am. Rep. 
 663. 
 
 A bona fide sale by one person of a 
 bond of another, at an exorbitant rate of 
 discount, is not illegal ; 3 Stockt. 362. A sale 
 of a note or mortgage for less than its face, 
 with a guarantee of payment in full, is not 
 usurious ; 35 Barb. 484 ; nor is a contract to 
 pay a bushel and a half of com within a year, 
 for the loan of a bushel; 12 Fla. 552. An 
 agreement to pay interest on accrued interest 
 is not invalid ; 10 Allen, 32 ; 55 N. Y. 621 ; 
 s. c. 14 Am. Rep. 352 ; but it has been held 
 that compounding interest on a note is usuri- 
 ous ; 76 N. C. 314. 
 
 The ordinary commissions allowed by the 
 usages of trade may be charged without 
 tainting a contract with usury ; but it must 
 plainly appear that the commissions are 
 charged for other services, and are not merely 
 a device to evade the law ; 2 Pat. & H. 110. 
 Commission may be charged by a merchant 
 for accepting a bill ; 18 Ark. 456 ; but a com- 
 mission charged in addition to interest for 
 advancing moTiey is usurious; 12 La. An. 
 660. Where a banker discounts a bill pay- 
 able in a distant place, he may charge the 
 usual rate of exchange on that place ; but if 
 such charge be an excess of the usual rate it 
 will be considered a device to cover usurious 
 interest; 3 Ind. 53; see 93 U. S. 344. 
 
USURY 
 
 775 
 
 UTAH 
 
 Where the payment of usurious interest de- 
 pends upon the will of the borrower, as, 
 where he may discharge himself from it by 
 prompt payment of the principal, it is con- 
 sidered in the light of a penalty, but does not 
 make the contract usurious ; 6 Cow. 653. 
 Where a gratuity is given to influence the 
 making of a loan, it will be considered 
 usurious ; 7 Ohio St. 387. Where a bank 
 which by its charter is prohibited from mak- 
 ing loans at over six per cent, makes one at 
 seven, such a contract being prohibited, the 
 courts will not assist the bank in enforcing it ; 
 26 Barb. 595. The burden of proof is on 
 the person pleading usury ; 22 Ga. 193 ; and 
 where the contract is valid on its face, affirm- 
 ative proof must be made that the agreement 
 was corruptly made to evade the law ; 97 U. 
 S. 13. Where parties exchange their notes 
 for mutual accommodation, and both or either 
 are pold at a higher than the legal rate, they 
 are usurious ; Hill & D. 65. 
 
 The common practice of reserving the in- 
 terest on negotiable paper at the time of 
 making the loan, although its effect is to 
 cause the borrower to pay more than the legal 
 rate, is very ancient, having been practised 
 by the Athenian bankers, and is sanctioned 
 by law ; Sewell, Banking. 
 
 The offence of taking usury is not con- 
 doned by the absence of intent to violate the 
 statute ; 50 N. Y. 437 ; but see 20 Wise. 407. 
 
 The one who has contracted to pay usury 
 may set up the defence ; 55 Ind. 341 ; 1 7 
 Kans. 355 ; and so may his privies ; 49 N. 
 Y. 636 ; 47 Ala. 362 ; and his suretv ; 39 
 Ind. 106 ; but see 50 Vt. 105 ; .35 N. J. 
 285 ; or a guarantor ; 20 Me. 28 ; but one 
 who buys an equity of redemption cannot set 
 up the defence against the mortgage ; 24 N. 
 J. Eq. 120 ; nor can a second mprtgagee set 
 up usury as a defence to a prior mortgage ; 1 7 
 Kans. 355; but see 26 Ind. 94 ; 59 Barb. 239. 
 A usurer cannot) take advantage of his own 
 usury to avoid his contract; 33 N. Y. 31. 
 
 The defence of usury must be supported 
 by clear proof; 57 HI. 138 ; 36 Wise. 390 ; 
 which may be extrinsic to the contract ; 9 
 Pet. 418 ; an express agreement for usury 
 need not be proved ; 2 Pick. 145. 
 
 Congress has adopted the following legislation 
 on this subject for the government of national 
 hanks : Any association may take, receive, re- 
 serve, and charge on any loan or discount made, 
 or upon any note, bill of exchange, or other 
 evidences of debt, interest at the rate allowed 
 by the laws of the state, territory, or dietriot 
 where the bank is located, and no more, except 
 that where, by the laws of any state, a different 
 rate is limited for banks of issue organized under 
 state laws, the rate so limited shall be allowed 
 for associations organized or existing in any 
 •such state under this title. When no rate is 
 fixed by the laws of the state, or territory, or 
 district, the bank may take, receive, reserve, or 
 charge a rate not exceeding seven per centum, 
 and such interest may be taken in advance, 
 reckoning the days for which the note, bill, or 
 other evidence of debt has to run. And the 
 purchase, discount, or sale of a bonaflde bill of 
 
 exchange, payable at another place than the 
 place of such purchase, discount, or sale, at not 
 more than the current rate of exchange for sight 
 drafts, in addition to the interest, shall not be 
 considered as taking or receiving a greater rate 
 of interest. 3d June, 1864, § 30, E. S. § 5197. 
 
 The taking, receiving, reserving, or charging 
 a rate of interest greater than is allowed by the 
 preceding section, when knowingly done, shall 
 be deemed a forfeiture of the entire Interest 
 which the note, bill, or other evidence of debt 
 carries with it, or which has been agreed to be 
 paid thereon. In case the greater rate of inte- 
 rest has been paid, the person by whom it has 
 been paid, or his legal representatives, may re- 
 cover back, in an action in the nature of an ac- 
 tion of debt, twice the amount of the interest 
 thus paid from the association taking or re- 
 ceiving the same, provided such action is com- 
 menced within two years from the time the 
 usurious action occurred. 3d June, 1864, § 30, 
 K. S. 5198. That suits, actions, and proceedings 
 against any association under this title may be 
 had in any circuit, district, or territorial court 
 of the United States held within the district in 
 which such association is located, having juris- 
 diction in similar cases. 18th Feb. 1875, c. 80, 
 V. 18, R. S. § 5198. 
 
 National banks may take the rate of in- 
 terest allowed by the state to natural persons 
 generally, and a higher rate, if state banks 
 of issue are authorized by the laws of the 
 state to take it ; 18 Wall. 409. 
 
 If no rate of interest is established by the 
 laws of the state, national banks are pro- 
 hibited from charging more than seven per 
 cent, interest. This is also the law where 
 the state law expressly forbids a corporation 
 to interpose the defence of usury to any ac- 
 tion; 11 Blatch. 243. It is now conclusively 
 settled that the penalty declared in sec. 30 
 of the act of 1864 for the exaction by a 
 national bank of usurious interest is superior 
 to and exclusive of any state penalty. Con- 
 gress, which is the sole judge of the necessity 
 for the creation of national banks, having 
 brought them into existence, the states can 
 exercise no control over them, or in any wise 
 affect their operation, except so far as it may 
 see proper to permit ; 91 U. S. 29 ; 72 
 Penn. 209; 78 id. 228; 44 Ind. 298; 115 
 Mass. 539 ; contra, 57 N. Y. 100. A na- 
 tional bank is not justified in charging a 
 usurious rate of interest because the statutes 
 of the state permit usurious interest to be 
 taken only by certain specified banks ; 1 1 
 Bank. Mag. 787. The party entitled to 
 recover may have judgment for twice the 
 amount of all interest which he has paid 
 within two years next preceding the date of 
 beginning suit ; 64 N. Y. 212. See Morse, 
 Bk. 562, 565 ; Ball, Nat. Banks, p. 194, and 
 Note. 
 
 See, generally, Comyns, Dig. ; Bacon, 
 Abr.; Lilly, Keg.; Dane, Abr.; Petersdorff, 
 Abr.; Viner, Abr.; 1 Pet. Index; Sewell, 
 Morse, Banking; Ball, Nat. Banks; Bly- 
 denburg, Tyler, Ord, Usury ; 7 Wait, Act. 
 & Def.; Parsons, Notes & Bills; Interest. 
 
 UTAH. One of the territories of the 
 United States. The act establishing the ter- 
 
UTERINE 
 
 776 
 
 VACANT POSSESSION 
 
 ritorjr was approved Sept. 9, 1850. The 
 tferritory consists of that portion of the ter- 
 ritory of the United States "bounded west 
 by the state of California, on the north by 
 the territory of Oregon, on the east by the 
 summit of the Rocky Mountains, on the 
 south by the thirty-seventh parallel of north 
 latitude." It is provided in the organic act 
 that the United States may divide the terri- 
 tory into two or more territories in such 
 manner and at such times as congress shall 
 deem convenient and proper, or may attach 
 any portion thereof to any other state or ter- 
 ritory of the United States. The distribu- 
 tion of powers under the act is precisely the 
 same as in the case of New Mexico. See 
 New Mexico. 
 
 UTERINE (Lat. uterus). Born of the same 
 mother. 
 
 UTPANGTHEiP. The right of a lord to 
 punish a thief dwelling out of his liberty, 
 and committing theft without the same, if 
 taken within the jurisdiction of the manor. 
 Cowel. 
 
 TJTI POSSIDETIS (Lat. as you possess). 
 In International La-w. A phrase used to 
 signify that the parties to a treaty are to re- 
 tain possession of what they have acquired 
 by force during the war. Boyd's Wheat. 
 Int. Law, 627. 
 
 ITTRTTBI. In Scotch Lavr. An inter- 
 dict as to movables, by which the colorable 
 possession of a bond fide holder is continued 
 until the final settlement of a contested right : 
 corresponding to uti possidetis as to heritable 
 property. Bell, Diet. 
 
 TITTER. In Criminal Law. To ofier ; 
 to publish. 
 
 To utter and publish a counterfeit note is 
 to assert and declare, directly or indirectly, 
 by words or actions, that the note offered is 
 good. It is not necessary that it should be 
 passed in order to complete the offence of 
 uttering ; 2 Binn. 338. It seems that read- 
 
 ing out a document, although the party re- 
 fuses to show it, is a sufiicient uttering ; Jebb, 
 Or. Cas. 282. See Leach, 251 ; Euss. 8e E. 
 113; Rose. Cr. Ev. 301. The merely show- 
 ing a false instrument with intent to gain a 
 credit, when there was no intention or at- 
 tempt made to pass it, it seems, would not 
 amount to an uttering ; Russ. & B. 200. And 
 where the defendant placed a forged receipt 
 for poor-rates in the hands of the prosecutor, 
 for the purpose of inspection only, in order, 
 by fraudulently representing himself as a per- 
 son who had paid his poor-rates, to induce 
 the prosecutor to advance money to a third 
 person for whom the defendant proposed to 
 become a surety for its repayment, this was 
 held to be an uttering within the statute ; 2 
 Den. Cr. Cas. 475. And the rule there laid 
 down is that a using of the forged instrument 
 in some way, in order to get money or credit 
 upon it, or by means of it, is sufficient to 
 constitute an uttering. 
 
 The word uttering, used of notes, does not 
 necessarily import thatthey are transferred as 
 genuine ; the terms include any delivery of a 
 note for value (as by a sale of the notes as 
 spurious) to another with the intent that they 
 should be passed upon the public as genuine ; 
 1 Abb. U. S. 135 (West. Dist. of Mich.). 
 
 The offence of uttering is complete when a 
 forged instrument is offered ; it need not be 
 accepted ; 2 Bish. Cr. L. § 605 ; 48 Mo. 520. 
 Recording a forged deed is uttering it ; 27 
 Mich. 386 ; so is bringing suit on a forged 
 paper ; 20 Gratt. 733. The legal meaning of 
 the word utter is in substance to offer ; Bish. 
 Cr. L. § 607. 
 
 UTTER BARRISTER. In English 
 Iiavr. Those barristers who plead without 
 the bar, and are distinguished from benchers, 
 or these who have been readers and who are 
 allowed to plead within the bar, as the king's 
 council are. See Barrister. 
 
 UXOR (Lat.). In Civil Law. 
 
 man lawfully married. 
 
 A wo- 
 
 Y. 
 
 VACANCY. A place which is empty. 
 The term is principally applied to cases where 
 the office is not filled. 
 
 By the constitution of the United States, 
 the president has the power to fill vacancies 
 that may happen during the recess of the 
 senate. See Tenure op Office ; Office ; 
 Resignation ; 1 So. L. Rev. n. s. 184. 
 
 VACANT FOSSESSION. A term ap- 
 plied to an estate which has been abandoned 
 by the tenant : the abandonment must be 
 complete in order to make the possession va- 
 cant, and, therefore, if the tenant have goods 
 on the premises it will not be so considered ; 
 2 Chitty, Bail. 177; 2 Stra. 1064; Comyn, 
 Landl. & T. 607, 517. 
 
VACANT SUCCESSION 
 
 777 
 
 VALUE 
 
 A dwelling-house furnished throughout, 
 from which the owner has removed for. a sea- 
 son, intending to return and resume posses- 
 sion, was held not vacant, within the meaning 
 of a policy of insurance; 81 N. Y. 184. 
 
 VACANT SUCCESSION. An inheri- 
 tance for which the heirs are unknown. 
 
 VACANTIA BONA (Lat.). In CivU 
 Latv. Goods without an owner. Such goods 
 escheat. 
 
 VACATE. To annul ; to render an act 
 void : as, to vacate an entry which has been 
 made on a record when the court has been 
 imposed upon by fraud or taken by sur- 
 prise. 
 
 VACATION. That period of time be- 
 tween the end of one term and beginning of 
 another. During vacation, rules and orders 
 are made in such cases as are urgent, by a 
 judge at his chambers. 
 
 The Judicature Acts of 1873 and 1875 
 have made some changes in the vacations of 
 the English Courts ; see Whart. Lex ; Term. 
 
 VACATION BARRISTER. SeeBAR- 
 
 MSTER. 
 
 VACCARIA (Lat. vacca, a cow). In 
 Old English Law. A dairy-house. Co. Litt. 
 5 ft. 
 
 VACCINATION. The Vaccination Act 
 of 30 & 31 Vict. c. 84, requires that every 
 child born in England shall be vaccinated 
 within three months of its birth. 
 
 VADIUM MORTUUM (Lat.). A mort- 
 gage or dead pledge : it is a security given by 
 the borrower of a sum of money, by which he 
 grant-s to the lender an estate in fee, on con- 
 dition that if the money be not repaid at the 
 time appointed, the estate so put in pledge 
 shall continue to the lender as dead or gone 
 from the mortgagor. 2 Bla. Com. 257 ; 1 
 Powell, Mortg. 4. 
 
 VADIUM FONERE. To take bail for 
 the appearance of a person in a court of jus- 
 tice. Toml. 
 
 VADIUM VIVUM (Lat.). A species 
 of security by which the borrower of a sum 
 of money made over his estate to the lender 
 until he had received that sum out of the is- 
 sues and profits of the land ; it was so called 
 because neither the money nor the lands were 
 lost, and were not left in dead pledge, but 
 this was a living pledge, for the profits of the 
 land were constantly paying off" the debt. 
 Littleton, § 206 ; 1 Powell, Mortg. 3 ; Termes 
 de la Ley. 
 
 VAGABOND. One who wanders about 
 idly, who has no certain dwelling. The or- 
 donnances of the French define a vagabond 
 almost in the same terms. Dalloz, Diet. 
 Vagabondage. See Vattel, liv. 1, § 219, u. 
 
 VAGRANT. A person who lives idly, 
 without any settled home. A person who 
 refuses to work, or goes about begging. This 
 latter meaning is the common one in statutes 
 
 punishing vagrancy. See 1 AVils. 331 ; 8 
 Perm, 26. See Tramp. 
 
 VAGRANT ACT. In English Law. 
 
 The statute 5 Geo. IV.. c. 83, which is an act 
 for the punishment of idle and disorderly 
 persons. 2 Chit. Stat. 145. 
 
 VAGUENESS. Uncertainty. 
 
 Certainty is required in contracts, wills, 
 pleadings, judgments, and, indeed, in all the 
 acts on which courts have to give a judgment, 
 and if they be vague so as not to be under- 
 stood, they are, in general, invalid ; 5 B. & 
 C. 583. A charge of frequent intemperance 
 and Iiabitual indolence is vague and too gene- 
 ral ; 2 Mart. La. N. s. 530. See Cer- 
 tainty; Nonsense; Uncertainty. 
 
 VALESHERIA. See Engleshire. 
 
 VALOR BENEPICIORUM (Lat.). In 
 Ecclesiastical Law. The value of every 
 ecclesiastical benefice and preferment, accord- 
 ing to which the first-fruits and tenths are 
 collected and paid. The valuation by which 
 the clergy are at present rated was made 26 
 Hen, VIII., and is commonly called The 
 King's Books. 1 Sharsw. Bhi. Com. 284*, 
 n. 5. 
 
 VALOR MARITAGII (Lat.). The 
 amount forfeited under the ancient tenures 
 by a ward to a guardian who had ofiered her 
 a marriage without disparagement, which 
 she refused. It was so much as a jury would 
 assess, or as any one would give bona fide, 
 for the value of the marriage. Littleton, 
 110. 
 
 A writ which lay against the ward, on 
 coming of full age, for that he was not mar- 
 ried by his guardian, for the value of the 
 marriage, and this though no convenient 
 marriage had been offered. Termes de la 
 Ley. 
 
 VALUABLE CONSIDERATION. See 
 
 Consideration. 
 
 VALUATION. The act of ascertaining 
 the worth of a thing. The estimated worth 
 of a thing. 
 
 It differs from price, which does not always 
 afford a true criterion of value ; for a thing 
 may be bought very dear or very cheap. In 
 some contracts, as in the case of bailments 
 or insurances, the thing bailed or insured is 
 sometimes valued at the time of making the 
 contract, so that, if lost, no dispute may arise 
 as to the amount of the loss ; 2 Marshall, 
 Inst. 620 ; 1 Caines, 80. Actual cost may 
 be looked to as one element with others, in 
 the ascertainment of value ; 12 Heisk. 133. 
 See Policy. 
 
 VALUE. The utility of an object. The 
 worth of an object in purchasing other goods. 
 The first may be called value in use ; the lat- 
 ter, value in exchange. 
 
 Value differs from price, q. v. The latter is ap- 
 plied to live cattle and animals ; in a declaration, 
 therefore, for taking cattle, they ought to be 
 said to be of such a price ; and in a declaratioi) 
 for taking dead chattels, or those which never 
 
VALUE RECEIVED 
 
 778 
 
 VENDOR'S LIEN 
 
 had life, it ought to lay them to be of such a 
 value ; 2 Lilly, Abr. 639. See 119 Mass. 126. 
 
 VALUE RECEIVED. A phrase usu- 
 ally employed in a bill of exchange or pro- 
 missory note, to denote that a consideration 
 has been given for it. These words are not 
 necessary; 11 A. & E. 702 ; 21 Wise. 607 ; 
 though it is otherwise in some states if the 
 bill or note be not negotiable; 19 Conn. 7 ; 
 29 111. 104 ;. extrinsic evidence is admissible 
 between immediate parties to prove absence, 
 failure, or illegality of consideration ; 5 Al- 
 len, 589 ; 9 id. 45, 253. 
 
 The expression value received, when put 
 in a bill of exchange, will bear two inter- 
 pretations ; the drawer of the bill may be 
 presumed to acknowledge the fact that he 
 has received value of the payee ; 3 Maule & 
 S. 351 ; 2 McLean, 218 ; or when the bill 
 has been made payable to the order of the 
 drawer and accepted, it implies that value has 
 been received by the acceptor ; 5 Maule & S. 
 65 ; 19 Barb. 409. In a promissory note, the 
 expression imports value received from the 
 pavee ; 5 B. & C. 360. See Parsons, Notes 
 &B. 
 
 VALUED POLICY. A valued policy 
 is one where the value has been set on the 
 ship or goods insured, and this value has 
 been inserted in the policy in the nature of 
 liquidated damages, to save the necessity of 
 proving it in case of loss. 1 Bouvier, Inst. n. 
 1230. See Policy. 
 
 VARIANCE. In Pleading and Prac- 
 tice. A disagreement or difference between 
 two parts of the same legal proceeding which 
 ought to agree together. Variances are be- 
 tween the writ and the declaration, and be- 
 tween the declaration, or bill in equity, and 
 the evidence. 
 
 Variance in matter of substance is fatal to 
 tlie action ; 4 Ala. 319 ; 7 B. Monr. 271 ; 1 
 Ohio, 504 ; 10 Johns. 141 ; and is ground for 
 demurrer or arrest of judgment ; 3 Denio, 
 S56 ; 3 Brev. 42 ; 7 T. B. Monr. 290 ; see 
 12 N. H. 396; but if in matter of form 
 merely, must be pleaded in abatement ; 1 111. 
 298; 1 McLean, 319; 3 Ala. 741 ; or special 
 demurrer ; 2 Hill, So. C. 585 ; and a variance 
 between the allegations and evidence upon 
 some material points only is as fatal as if upon 
 all; 7 Taunt. 385; but, if it be merely formal 
 or immaterial matter, will be disregarded ; 7 
 Cra. 408 ; 11 Ala. 542. Slight variance from 
 the terms of a written instrument which is 
 professedly set out in the words themselves is 
 fatal ; Hempst. 294. 
 
 VASSAL. In Feudal Law. The name 
 given to the holder of a fief bound to perform 
 feudal service : this word was then always 
 correlative to that of lord, entitled to such 
 service. 
 
 The vassal himself might be lord of some 
 other vassal. 
 
 In after-times, this word was used to signify 
 a species of slave who owed servitude and 
 
 was in a state of dependency on a superior 
 lord. 2 Bla. Com. 53. 
 
 VAVASOUR (diminutive from vasalus, 
 or, according to Bracton, from vas snrtilus ad 
 valitudinem). One who was in dignity next 
 to a baron. Britton, 109 ; Bracton, lib. 1, 
 c. 8. One who held of a baron. Enoyc. Brit. 
 
 VECTIGALIA. In Roman Law. Du- 
 ties which were paid to the prince for the 
 importation and exportation of certain mer- 
 chandise. They diflered from tribute, which 
 was a tax paid by each individual. Code, 4. 
 61. 5. 13. 
 
 VEJOURS. An obsolete word, which 
 signified viewers or experts. 
 
 VENAL. Something that is bought. The 
 term is generally applied in a bad sense ; as, 
 a venal oifice is an office which has been pur- 
 chased. 
 
 VENDEE. A purchaser ; a buyer. 
 
 VENDITION. A sale ; the act of sell- 
 ing. 
 
 VENDITIONI EXPONAS (Lat.). 
 That you expose to sale. 
 
 In Practice. The name of a writ of exe- 
 cution, directed to the sheriff, commanding 
 him to sell goods . or chattels, and in some 
 states lands, which he has taken in execution 
 by virtue of a ^fieri facias, and which remain 
 unsold. 
 
 Under this writ the sheriff is bound to sell 
 the property in his hands, and he cannot re- 
 turn a second time that he can get no buyers ; 
 Cowp. 406. 
 
 VENDITOR REGIS (Lat.). The king's 
 salesman, or person who exposes to sale goods 
 or chattels seized or distramed to answer any 
 debt due to the king. Cowel. This office 
 was granted by Edw. L to Philip de Lordiner, 
 but was seized into king's hands for abuse 
 thereof. 2 Edw. II. 
 
 VENDOR. The seller ; one who disposes 
 of a thing in consideration of money. 
 
 VENDOR AND PURCHASER ACT. 
 The act of 37 & 38 Vict. e. 78, which substi- 
 tutes forty for sixty years as the root of title, 
 and amends in other ways the law of vendor 
 and purchaser. Moz. & W. 
 
 VENDOR'S LIEN. An equitable lien 
 allowed the vendor of land sold for the pur- 
 chase-money, where the deed expresses, con- 
 trary to the fact, that the purchase-money is 
 paid. Unless waived, the lien remains till 
 the whole purchase-money is paid; 16 Ves. 
 329; 2 P. Wms. 291 ; 1 Vern. 267. 
 
 The lien exists against all the world except 
 6o?!a_^(/e purchasers without notice; 1 Johns. 
 Ch. 308 ; 9 Ind. 490 ; 34 Am. Rep. 612 ; 8. 
 c. 12 R. I. 92. If security is taken for the 
 purchase-money, the court will look into the 
 substance of the transaction and see if it was 
 taken in lieu of the purchase-money ; 3 Russ. 
 488. As a general rale, the lien does not pre- 
 vail against creditors of purchaser ; 7 Wheat. 
 46; 10 Barb. 626. This lien is recognized 
 
VENIRE FACIAS 
 
 779 
 
 VENUE 
 
 in New York, New Jersey, Maryland, Missis- 
 sippi, Missouri, Alabama, Arkansas, Califor- 
 nia, Georgia, Florida, Illinois, Indiana, Iowa, 
 Michigan, Kentucky, Tennessee, Texas. But 
 to have effect it must be expressly reserved in 
 Ohio, and the courts of the United States. In 
 Kansas, Maine, Pennsylvania, North and 
 South Carolina, the doctrine has been ex- 
 ploded ; in Vermont and Virginia, abolished 
 by statute. In Connecticut, Delaware, Mas- 
 sachusetts, and New Hampshire the doctrine 
 has not beep recognized by judicial decision. 
 See notes to Maokreth vs. Symmons, 1 White 
 & T. L. C. Eq. 447 ; 2 Washb. R. P. 509, n. 
 6 ; Perry, Trusts, § 232, n. See Lien. 
 
 VENIRE FACIAS (Lat.). That you 
 cause to come. According to the English 
 law, the proper process to be issued on an in- 
 dictment for any petit misdeameanor, on a 
 penal statute, is a writ called venire facias. 
 
 It is in the nature of a summons to cause 
 the party to appear; 4 Bla. Com. 18, 351. 
 See Thomp. & M. Juries ; 62. 
 
 VENIRE FACIAS JURATORES 
 (Lat.). (Frequently called venire simply.) 
 
 The name of a writ directed to the sheriff', 
 commanding him to cause to come from the 
 body of the county, before the court from 
 which it issued, on some day certain and 
 therein specified, a certain number of quali- 
 fied citizens who are to act as jurors in the 
 said court. Stoph. PI. 104 ; see 6 S. & R. 
 414; 3 Chitty, Pr. 797; Juky. 
 
 VENIRE FACIAS DE NOVO (Lat.). 
 The name of a new writ of venire facias ; this 
 is awarded when, by reason of some irregu- 
 larity or defect in the proceeding on the first 
 venire, or the trial, the proper effect of the 
 venire has been frustrated, or the verdict be- 
 come void in law ; as, for example, when the 
 jury has been improperly chosen, or an un- 
 certain, ambiguous, or defective verdict has 
 been rendered. Steph. PI. 120. 
 
 VENTE A REMERE. In French Iiaw. 
 A sale made, reserving a right to the seller 
 to repurchase the property sold by return- 
 ingthe price paid for it. 
 
 The term is used in Canada and Louisiana. 
 The time during which a repurchase may be 
 made cannot exceed ten years, and, if by the 
 'agreement it so exceed, it shall be reduced 
 to ten years. The time fixed for redemption 
 must be strictly adhered to, and cannot be 
 enlarged by the judge, nor exercised after- 
 wards. La. Civ. Code, art. 1545-1549. 
 
 VENTER, VENTRE (Lat. the belly). 
 The wife ; for example, a man has three 
 children by the first and one by the second 
 venter. A child is said to be in ventre sa 
 mere before it is born ; while it is a foetus. 
 
 VENTRE INSPICIENDO (Lat.). In 
 English Law. A writ directed to the sheriff', 
 commanding him that, in the presence of 
 twelve men and as many women, he cause 
 examination to be made whether a woman 
 therein named is with child or not, and if with 
 
 child, then about what time it will be born, 
 and that he certify the same. It is granted 
 in a case when a widow, whose husband had 
 lands in fee-simple, marries again soon after 
 her husband's death, and declares herself 
 pregnant by her first husband, and, under 
 that pretext, withholds the lands from the 
 next heir ; Cro. Eliz. 606 ; Fleta, lib. 1, c. 
 15. • 
 
 VENUE (L. Lat. visnetum, neighbor- 
 hood. The word was formerly spelled visne. 
 Co. Litt. 125 o). 
 
 The county in which the facts are alleged 
 to have occurred, and from which the jury 
 are to come to try the issue. Gould, PI. c. 3, 
 § 102; Cowp. 176 ; 1 How. 241. Some cer- 
 tain place must be alleged as the place of oc- 
 currence for each traversable fact ; Comyns, 
 Dig. Pleader (C 20). Generally, in modern 
 pleading, in civil practice, no special allega- 
 tion is needed in the body of the declaration, 
 the venue in the margin being understood to 
 be the place of occurrence till the contrary is 
 shown; Hempst. 236. See statutes and 
 rules of court of the various states, and Reg. 
 Gen. Hil. T. 4 Wm. IV. 
 
 In local actions the true venue must be 
 laid ; that is, the action must be brought in 
 the county where the cause of action arose, 
 being that where the property is situated, in 
 actions affecting real property ; 2 Zabr. 204 ; 
 and see 18 Ga. 719 ; and there can be no 
 change of venue in such cases ; 3 N. Y. 204. 
 Thus, in actions on a lease at common law, 
 founded on privity of contract, as debt or 
 covenant by lessor or lessee ; 1 Saund. 241S ; 
 3 S. & R. 500 ; venue is transitory, but 
 when founded in privity of estate, as in case 
 of assignment, the venue is local ; 1 Saund. 
 257. By various early statutes, however, 
 actions on leases have become generally tran- 
 sitory. In such action, some particular place, 
 as, a town, village, or parish, must formerly 
 have been designated ; Co. Litt. 125. But 
 it is said to be no longer necessary except in 
 replevin; 2 East, 503; 1 Chitty, PI. 251. As 
 to where the venue is to be laid in case of a 
 change of county lines, see 18 Ga. 690; 16 
 Penn. 3. 
 
 In transitory actions the venue may be laid 
 in any county the plaintiff' chooses ; that is, 
 he may bring suit wherever he may find the 
 defendant, and lay his cause of action to have 
 arisen there, even though' the cause of action 
 arose in a foreign jurisdiction ; Steph. PI. 
 306 ; 18 Ga. 690 ; 1 How. 241 ; 17 Pet. 245. 
 In case the cause was to be tried in a diff'erent 
 county from that in which the matter actually 
 arose, the venue was anciently laid by giving 
 the place of occurrence, with a scilicet giving 
 the place of trial; 1 Chitty, PI. 250 ; 1 How. 
 241 ; 3 Zabr. 279. In some cases, however, 
 by statutes, the venue in transitory actions 
 must be laid in the countjr where the matter 
 occurred or where certain parties reside; 
 3 Bla. Com. 294. And generally, by statute, 
 it must be in the county where one of the par- 
 
VERAY 
 
 780 
 
 VEKDICT 
 
 ties resides, when between citizens of the 
 same state. 
 
 In criminal proceedings the venue must 
 be laid in the county where the occurrence 
 actually took place ; 4 C. & P. 363 ; and the 
 act must be proved to have occurred in that 
 jurisdiction; Archb. Cr. PI. 40, 95; 26 
 Penn. 613; 4 Tex. 450;; 6 Oal. 202; 6 
 Yerg. 364. Statemeflt of venue in the mar- 
 gin and reference thereto in the body of an 
 indictment is a sufficient statement of venue ; 
 39 Me. 78 ; 4 Ind. 141 ; 8 Mo. 283 ; and see 
 20 Mo. 411; 39 Me. 291; and the venue 
 need not be stated in the margin if it ap- 
 pears from the indictment ; 6 Gray, 478 ; 25 
 Conn. 48 ; 2 McLean, 580. 
 
 Want of any venue is a cause for demurrer ; 
 5 Mass. 94 ; or abatement ; Archb. Civ. PI. 
 78 ; or arrest of judgment ; 4 Tex. 450. So 
 defendant may plead or demur to a wrong 
 venue; 13 Me. 130. CAanjre of venue may 
 be made by the court to prevent, and not to 
 cause a defeat of justice ; 3 Bla. Com. 294 ; 
 32 E. L. & E. 358; 20 Mo. 400; 2 Wise. 
 397 ; 20 111. 269 ; 3 Zabr. 63 ; both in civil ; 
 7 Ind. 110; 31 Miss. 490; 27 N. H. 428; 
 and criminal cases ; 7 Ind. 160 ; 28 Ala. K. 
 s. 28 ; 4 Iowa, 606 ; 5 Harr. Del. 512 ; and 
 such change is a matter of right on compli- 
 ance with the requirements of the law ; 9 
 Tex. 358; 7 Ind. 110; 2 Wise. 419; 16111. 
 511 ; 8 Mo. 606. That such change is a 
 matter of discretion with the court below, 
 see 28 Ala. n. 8. 28 ; 31 Miss. 490 ; 3 Cal. 
 410 ; 8 Ind. 439 ; 5 Harr. Del. 512 ; 13 La. 
 An. 191. 
 
 VERAY. An ancient manner of spelling 
 vrai, true. In the English law there are 
 three kinds of tenants : veray, or true tenant, 
 who is one who holds in fee-simple ; veray 
 tenant by the manner, who is the same as 
 tenant by the manner, q. v., with this differ- 
 ence only, that the fee-simple, instead of re- 
 maining in the lord, is given by him or by the 
 law to another. Hamm. N. P. 394. 
 
 VERBAL. Parol : by word of mouth : as, 
 verbal agreement; verbal evidence. Some- 
 times incorrectly used for oral. 
 
 VERBAL NOTE. In diplomatic lan- 
 guage, a memorandum or note, not signed, 
 sent when an affair has continued along time, 
 without any reply, in order to avoid the ap- 
 pearance of an urgency which perhaps the 
 affair does not require, and, on the other 
 hand, not to afford any ground for supposing 
 that it is forgotten, or that there is no inten- 
 tion of prosecuting it any further, is called a 
 verbal note. < 
 
 VERBAL PROCESS. In Louisiana. 
 A written account of any proceeding or ope- 
 ration required by law, signed by the person 
 commissioned to perform the duty, and at- 
 tested by the signature of witnesses. See 
 PKOCi:s Vekbal. 
 
 VERDEROR (fr. French verdeur, fr. vert 
 or verd, green; Law L. viridarius). An 
 
 officer in king's forest ; whose office is pro- 
 perly to look after the vert, for food and shel- 
 ter for the deer. He is also sworn to keep 
 the assizes of the forest, and receive and en- 
 roll the attachments and pre'sentments of tres- 
 passes within the forest, and certify them to 
 the swainmote or justice-seat. Cowel ; Man- 
 wood, For. Law, 332. 
 
 VERDICT. In Practice. The unani- 
 mous decision made by a jury and reported 
 to the court on the matters lawfully sub- 
 mitted to theft in the course of a trial of a 
 cause. 
 
 A general verdict is one by which the jury 
 pronounce at the same time on the fact and 
 the law, either in favor of the plaintiff or de- 
 fendant. Co. Litt. 228 ; 4 Bla. Com. 461. 
 The jury may find such a verdict whenever 
 they think fit to do so. 
 
 A partial verdict in a criminal case is one 
 by which the jury acquit the defendant of a 
 part of the accusation against him, and find 
 him guilty, of the residue. 
 
 The following are examples of this kind of a 
 verdict, namely : when they acquit the defend- 
 ant on one count and find him guilty on another, 
 which is Indeed a species of general verdict, as 
 he is generally acquitted on one charge and 
 generally convicted on another; when the 
 charge is of an offence of a higher, and includes 
 one of an inferior degree, the jury may convict 
 of the less atrocious by finding a partial verdict. 
 Thus, upon an indictment for burglary, the de- 
 fendant may be convicted of larceny and 
 acquitted of the nocturnal entry ; upon an in- 
 dictment for murder, he may be convicted of 
 manslaughter ; robbery may be softened to 
 simple larceny; a battery into a common as- 
 sault ; 1 Chitty , Cr. Law, 638, and the cases there 
 cited. 
 
 A privy verdict is one delivered privily to 
 a judge out of court. A verdict of this kind 
 is delivered to the judge after the jury have 
 agreed, for the convenience of the jury, who, 
 after having given it, separate. This verdict 
 is of no force whatever ; and this practice, 
 being exceedingly liable to abuse, is seldom 
 if ever allowed in the United States. The 
 jury, however, are allowed in some states, in 
 certain cases, to seal their verdict and return 
 it into court, as, for example, where a verdict 
 is agreed upon during the adjournment of the 
 court for the day. When this is done in 
 criminal cases it is usually the right of the de- 
 fendant to have the jury present in court when 
 the verdict is opened; 10 Fed. Kep. 269. 
 See Pkesencb. 
 
 A public verdict is one delivered in open 
 court. This verdict has its full efl'ect, and 
 unless set aside is conclusive on the facts, and, 
 when judgment is rendered upon it, bars all 
 future controversy, in personal actions. A 
 
 f)rivate verdict must afterwards be given pub- 
 icly in order to give it any effect. 
 
 A special verdict is one by which the facts 
 of the case are put on the record, and the law 
 is submitted to the judges. 1 Litt. 376; 
 4 Rand. 504 ; 1 Wash. C. C. 499 ; 2 Mas. 
 31. The jury may find a special verdict in 
 
VERGE 
 
 781 
 
 VERMONT 
 
 criminal cases, but they are not obliged in any 
 case to do so; Cooley, Const. Lim. 398. 
 
 The jury have an option, instead of finding 
 the negative or affirmative of the issue, as in a 
 general verdict, te find all the facts of the case 
 as disclosed hy the evidence before them, and, 
 after so setting them forth, to conclude to the 
 following effect : " that they are ignorant, in 
 point of law, on which side they ought upon 
 those facts to find the issue ; that if upon the 
 whole matter the court shall be of opinion that 
 the issue is proved for the plaintiff, they find for 
 the plaintiff' accordingly, and assess the damages 
 at such a sum, etc. ; but if the court are of an 
 opposite opinion, then they find vice versa. This 
 form of finding is called a special verdict. In 
 practice they have nothing to do with the formal 
 preparation of the special verdict. When it is 
 agreed that a verdict of that kind is to be given, 
 the jury merely declare their opinion as to any 
 fact remaining in doubt, and then the verdict is 
 adjusted without their further interference. It 
 is settled under the correction of the judge, by 
 the counsel and attorneys on either side, accord- 
 ing to the state of the facts as found by the jury, 
 with respect to all particulars on which they 
 have delivered an opinion, and, with respect to 
 other particulars, according to the state of facts 
 which it is agreed that they ought to find upon 
 the evidence before them. The special verdict, 
 when its form is thus settled, is, together with 
 the whole proceedings on the trial, then entered 
 on record ; and the question of law, arising on 
 the facts found, is argued before the court in 
 banc, and decided by that court as in case of a 
 demurrer. If either party be dissatisfied with 
 their decision, he may afterwards resort to a 
 court of error ; Steph. PI. 113 ; 1 Archb. Pr. 
 189 ; 3 Bla. Com. 377. 
 
 There is another method of finding a special 
 verdict ; this is when the jury find a verdict 
 generally for the plaintiff, but subject neverthe- 
 less to the opinion of the judges or the court 
 above on a special case, stated by the counsel on 
 both sides, with regard to a matter of law ; 3 
 Bla. Com. 378. And see 10 Mass. 64; 11 in!. 3.58. 
 
 A juror may dissent at any time from a ver- 
 dict to which he had before agreed until the 
 same is recorded ; 1.5 Am. L. Rev. 423. 
 
 Where a jury being equally divided in opi- 
 nion come to an agreement by lot, it was for- 
 merly held that its verdict was legitimate ; 1 
 Keble, 811 ; but such verdicts are now held to 
 be illegal, and will be set aside. The " quotient" 
 verdict is so called from the fact that the jurors, 
 having agreed to find for the plaintiff, further 
 agree that their verdict shall be in such sum as 
 is ascertained by each juror privately marking 
 down the sum of money to which he thinks the 
 plaintiff entitled, the total of these sums being 
 divided by twelve. This method is exceedingly 
 common in actions for unliquidated damages, 
 and is almost universally condemned, the ground 
 of the objection being that such an agreement 
 cuts off all deliberation on the part of the jurors, 
 and places it in the power of one of their num- 
 ber by naming a sum extravagantly high or 
 ridiculously low to make the quotient unrea- 
 sonably large or small ; Thomp. & Merr. Juries, 
 §§ 408,409; 6 Smed. & M. 55; 1 Wash. Ty. 
 339; s. c. 34 Am. RCp. 808. But where the cal- 
 culation is purely informal, for the purpose of 
 ascertaining the sense of the jury, the objection 
 is obviated, and the verdict will stand ; 1 Humph. 
 399 ; 93 Hi. 410. See Lot ; Jukt. 
 
 VERGE. An uncertain quantity of land, 
 from fifteen to thirty acres. Toml. See 
 
 €0URT OF THE MaRSHALSEA ; ViRGA. 
 
 VERIFICATION (Lat. verum, true, 
 facio, to make). In Pleading. An aver- 
 ment by the party making a pleading that he 
 is jirepared to establish the truth of the facts 
 which he has pleaded. 
 
 Whenever new matter is introduced on 
 either side, the plea must conclude with the 
 verification or averment, in order that the 
 other party may have an opportunity of an- 
 swering it; Dougl. 60; 2 Term, 576; 1 
 Saund. 103, n. 1. This applies only to pleas. 
 Replications and subsequent proceedings for 
 counts and avowries need not be venfied ; 
 Co. Litt. 362 6. 
 
 In one instance, however, new matter need 
 not conclude with a verification, and then 
 the pleader may pray judgment without it : 
 for example, when the matter pleaded is 
 merely negative; Willes, 5; Lawes, PI. 145. 
 The reason of it is evident : a negative re- 
 quires no proof; and it would, therefore, be 
 impertinent or nugatory for the pleader, who 
 pleads a negative matter, to declare his readi- 
 ness to prove it. 
 
 The usual form of verification of a plea 
 containing matter of fact is, "And this he is 
 ready to verify," etc. See 3 Bla. Com. 309. 
 
 In Practice. The examination of the 
 truth of a writing; the certificate that the 
 writing is true. See Authentication. 
 
 VERMONT. One of the New England 
 states. Its name is derived from the Green 
 Mountains, which traverse the state from 
 north to south. 
 
 HisTOKT. — The early history of Vermont is 
 peculiar and unique. Its territory was origi- 
 nally claimed, under conflicting and ambiguous 
 titles from the crown of Great Britain, by both 
 New York and New Hampshire. Claimed on the 
 one side as within the established boundaries of 
 the province of New Hampshire, it was granted 
 in townships to the first settlers, by Benning 
 Wentworth, governor of that province. Claimed 
 on the other hand to be covered by the charter of 
 Charles II. to the Duke of York, the Went- 
 worth grants were treated by the New York au- 
 thorities as void, and the lauds were re-granted 
 to other parties, under the New York title. 
 Which of these titles was in law the best, was 
 never judicially determined. And as a century 
 of undisturbed possession has now superseded 
 them both, the question is no longer important. 
 The better opinion appears to be in favor of the 
 claim of New Hampshire. 
 
 The early settlers of Vermont, who were emi- 
 grants from Massachusetts and Connecticut — 
 mainly the latter — took possession under the 
 New Hampshire title. The settlements com- 
 menced about 1764, and rapidly increased, and 
 the state was first called New Connecticut. A 
 conflict of jurisdiction and of title immediately 
 sprang up. Surveys were attempted to be made 
 and settlements established under the New York 
 titles, and many ejectment suits were com- 
 menced at Albany against the settlers in posses- 
 sion, judgments were recovered, and process is- 
 sued to carry them' into effect. The officers and 
 claimants were, however, in every instance driven 
 off by the inhabitants, the process of the courts 
 of that province set at defiance and successfully 
 resisted until service of it became impossible, 
 and the possession under the New Hampshire 
 grants was maintained. Finally, in 1771, a body 
 
VERMONT 
 
 782 
 
 VERMONT 
 
 of militia were sent from New York to aid the 
 sheriff in executing a writ of possession, but 
 were overpowered and returned without effecting 
 their purpose. 
 
 The struggle between the authorities of New 
 York and the inhabitants of Vermont continued 
 for more than ten years preceding the commence- 
 ment of the Revolution. It forms an interesting 
 and romantic chapter in early American history, 
 and will be found narrated with fulness and ac- 
 curacy in Hiland Hall's Early History of Ver- 
 mont. (_Muneell, Albany, 1868.) Through the 
 whole controversy the Vermonters, who were or- 
 ganized in a simple way for mutual protection, 
 maintained a condition of practical indepen- 
 dence, acknowledging general allegiance to the 
 British Crown, but otherwise self-governed and 
 self-sustained. 
 
 At the outbreak of the Revolution the people 
 of Vermont joined their brethren in the contest, 
 though independent of the federal government. 
 In 1777 they declared their territory to be 
 " a free independent jurisdiction," and adopted 
 a constitution which with subsequent amend- 
 ments is still the constitution of the state. 
 Under this constitution the state maintained its 
 government and its independence for fourteen 
 years, until its admission to the Union, by act of 
 congress, In 1791. 
 
 Government. — The institutions of Vermont 
 were modelled in large part from those of Con- 
 necticut. They are characterized by great sim- 
 plicity and economy. The oiBces are few, of 
 short tenure, small compensation, simple du- 
 ties, and no patronage. 
 
 The original constitution was prefaced by a 
 "declaration of rights," which still remains a 
 part of it. In addition to the usual guarantee 
 of the right to life, liberty, property, justice, 
 trial by jury, freedom of speech, of the press, 
 of popular assembly, and of elections, it pro- 
 hibits slavery, secures liberty of conscience and 
 of worship, and absolute equality of civil rights, 
 to all persons, without the distinction of religious 
 belief, restricts the application of martial law to 
 those in actual military service, prohibits the sup- 
 pression of the writ of habeas corpus, and sub- 
 ordinates the military to the civil power. The 
 constitution further declares, that, "as every free- 
 man to preserve his independence (if without a 
 sufScient estate) ought to have some profession, 
 calling, trade, or farm, whereby he may honestly 
 subsist, there can be no necessity for, nor use in, 
 establishing offices of profit, the usual effects of 
 which are dependence and servility unbecoming 
 freemen in the possessors or expectants, and 
 factious contention and discord among the people. 
 But if any man is called into public service to 
 the prejudice of his private affairs, he has a right 
 to a reasonable compensation ; and whenever an 
 office, through increase of fees or otherwise, be- 
 comes so profitable as to occasion many to apply 
 for it, the profits ought to be lessened by the 
 legislature. And if any officer shall wittingly 
 and willingly take greater fees than the law 
 allows him , it shall ever after disqualify him from 
 holding any office in this state, until he shall be 
 restored by act of legislature." (Art. 25.) 
 
 Every man of the age of twenty-one years, 
 bom in the United States or naturalized, who 
 has resided one year in the state, is of quiet and 
 peaceable behavior, and takes the oath of alle- 
 giance, becomes a freeman of the state. 
 
 The constitutiqn was amended in 1786, 1793, 
 1838, 1836, 18.50, and 1870. Under its present 
 provisions it may be amended in the following 
 manner: The senate, by a two-thirds vote, may 
 propose amendments, which, if concurred in by 
 
 a majority of the house of representatives, shall 
 be entered on the journal, and submitted to the 
 next legislature. If then adopted by a majority 
 of both houses, they shall be submitted to a vote 
 by the freemen of the state ; and if they receive 
 a majority of votes, they become part of the con- 
 stitution. 
 
 The Executive Power of the state is vested 
 in the governor, lieutenant-governor, and trea- 
 surer, who are elected by the freemen bi-an- 
 nually. The governor receives a salary of $1000 
 per annum withouttother allowances ; he has no 
 power of appointment to office except of his own 
 secretary, unless in case of vacancies occurring 
 during the recess of the legislature, and then 
 only to fill such vacancies until the legislature 
 convenes ; he signs bills passed by the legisla- 
 ture, and has a veto power; but if the bill 
 vetoed is again passed by a majority of both 
 houses, it becomes a law ; and unless the bill is 
 returned by the governor within five days after 
 its presentation to him, it becomes a law, unless 
 the legislature adjourns within three days after 
 such presentation. He has power to grant par- 
 dons except in cases of impeachment, with the 
 penalties of which he cannot interfere, and of 
 treason and murder in which he may reprieve 
 but not pardon until after the next session of the 
 legislature, and cannot commute ; he may lay 
 embargoes or prohibit the exportation of com- 
 modities in the recess of the legislature, for a 
 period not exceeding thirty days ; may convene 
 the legislature in special session ; and is com- 
 mander-in-chief of the forces of the state, but 
 may not command in person except when advised 
 thereto by the senate, and then only so long as 
 they shall approve thereof. The lieutenant-gov- 
 ernor presides over the senate, and in the ab- 
 sence or disability of the governor acts in his 
 place. The treasurer has charge of the finances 
 of the state. All other state officers are elected 
 by the legislature. 
 
 The Legislative Power is exercised by a 
 senate of thirty members, elected by the coun- 
 ties in proportion to population, each county 
 electing at least one ; and by a house of repre- 
 sentatives of about two hundred and thirty mem- 
 bers, of whom each town in the state elects one 
 and no more. Impeachments are voted by the 
 house of representatives, tried by the senate, 
 conviction had only by vote of two-thirds, and 
 the penalties extend only to removal from office 
 and disqualification for future office. But the 
 judgment constitutes no bar to a prosecution at 
 law. 
 
 The Judiciary Power Is vested in a supreme 
 court, courts of chancery, county courts, pro- 
 bate courts, and justices of the peace. The su- 
 preme court consists of a chief justice and six 
 assistant justices, who are elected by the legisla- 
 ture biennially. It holds one term each year in 
 every county in the state, and one general term 
 of the whole court each year at the capital for 
 hearing causes of special importance. It has 
 original jurisdiction in cases of mandamus, quo 
 warranto, and petitions for new trials, and appel- 
 late jurisdiction from all final decrees in the 
 courts of chancery, and by writ of error on ex- 
 ceptions upon questions of law in all cases in 
 the county courts. The courts of chancery are 
 holden twice a year in each county by a justice 
 of the supreme court, and have the general 
 powers of the English courts of chancery. The 
 county courts are holden twice in each year in 
 every county by a justice of the supreme court 
 and two assistant judges elected by the people 
 
VERSUS 
 
 783 
 
 VETO 
 
 for the county biennially. They have general 
 original jurisdiction in all actions for recovery 
 of lands or Involving the title thereto ; in ac- 
 tions for divorce, audita querela, and upon money 
 demands above the sum of two hundred dollars, 
 and in certain cases below that sum ; and in 
 proceedings for establishing or discontinuing 
 roads and bridges, removal of paupers, etc. ; 
 and they have appellate jurisdiction from the 
 probate courts, and from the judgments of jus- 
 tices of the peace in all criminal cases, and in 
 all civil cases where the demand exceeds' ten dol- 
 lars, or if upon note, twenty dollars. The pro- 
 hate courts are holden by j'iidges of probate, 
 elected by the freemen biennially for the pro- 
 bate districts, each of which is either a county 
 or a division of a county. The probate courts 
 are always open, and have exclusive original ju- 
 risdiction of the settlement of the estates of 
 deceased persons, of guardianship, and of pro- 
 ceedings in insolvency. Justices of the peace 
 are elected from the towns by the freemen thereof 
 biennially, in numbers proportioned to the pop- 
 ulation. They have jurisdiction of minor crimi- 
 nal offences, and of civil actions where the de- 
 mand does not exceed two hundred dollars, 
 except slander, false imprisonment, and actions 
 in which the title to land is concerned. In re- 
 plevin, ortrespass on the freehold, the jurisdiction 
 is limited to twenty dollars. 
 
 AH the courts except those of justices of the 
 peace are courts of record. 
 
 The common-law system of pleading is pre- 
 served, though with a course of practice very 
 simple and inexpensive. The statutes of the 
 state are comprehended in the revised statutes of 
 1880. The law reports are Nat. Chipman, 1 vol. ; 
 Jas. Chipman, 1 vol. ; Tyler, 3 vols. ; Brayton, 
 1 vol. ; Aiken, 3 vols. ; Vermont Reports, 51 
 vols. Those prior to Aiken are now only of his- 
 toric value. 
 
 The local government of Vermont is almost en- 
 tirely in the towns. The counties exercise muni- 
 cipal powers only for the election of senators 
 and for judicial purposes, including the election 
 of state attorneys, sheriffs, and bailiffs, and the 
 maintenance of court-houses and jails. 
 
 VERSUS. -Against ; as, A B versus C D. 
 This is usually abbreviated v. or vs. See 
 Title. 
 
 VERT. Every thing bearing green leaves 
 in a forest. Bacon, Abr. Courts of the 
 Forest; Manwood, For. Law, 146. 
 
 VERY LORD AND VERY TENANT. 
 
 They that are immediate lord and tenant one 
 to another. Cowel. 
 
 VESSEIi. In Maritime Law. A ship, 
 brig, sloop, or other craft used in navigation. 
 1 Boulay-Paty, tit. 1, p. 100. The term is 
 rarely applied to any water-craft without a 
 deck ; 3 Mas. 137 ; but has been used to in- 
 clude every thing capable of being used as a 
 means of transportation by water; 27 La. 
 An. 607. See Ship ; Part-Owneks. 
 
 By an act of congress, approved July 39, 18.50, 
 it is provided that any person, not being an ow- 
 ner, who shall on the high seas, wilfully, with 
 intent to burn or destroy, set fire to any ship or 
 other vessel, or otherwise attempt the destruc- 
 tion of such ship or other vessel, being the pro- 
 perty of any citizen or citizens of the United 
 States, or procure the same to be done, with the 
 intent aforesaid, and being thereof lawfully con- 
 victed, shall suffer imprisonment to hard labor 
 
 for a term not exceeding ten years nor less than 
 three years according to the aggravation of the 
 offence. 
 
 VEST. To give an immediate fixed right 
 of present or future enjoyment. An estate is 
 vested in possession when there exists a right 
 of present enjoyment ; and an estate is vested 
 in interest when there is a present fixed right 
 of future enjoyment. Fearne, Cont. Rem. 2. 
 See Roper, Leg. 757; Comyns, Dig. Vest; 
 Vern. 323, n.; 5 Ves. 511 ; 6 McLean, 422 ; 
 29 N. C. 321. 
 
 VESTED INTEREST. See next title. 
 
 VESTED REMAINDER. An estate by 
 which a present interest passes to the party, 
 though to be enjoyed infuturo, and by which 
 the estate is invariably fixed to remain to a 
 determinate person after the particular estate 
 has been spent. 2 Bouvier, Inst. n. 1831. 
 See Remainder ; Tudor, L. Cas. R. P. 820. 
 
 VESTED EIGHT. See Right. 
 
 VESTING ORDER. An order which 
 may be granted by the chancery division of 
 the high court of justice (and formerly by 
 chancery) passing the legal estate in lieu of 
 a conveyance. Commissioners also, under 
 modern statutes, have similar powers ; 15 & 
 16 Vict. c. 55. Whart. Lex. 
 
 VESTRY. The place in a church where 
 the priest's vestments are deposited. Also, an 
 assembly of the minister, church wardens, 
 and parishioners, held in the vestry of the 
 church. In America, a body elected by a 
 church congregation to administer the afiairs 
 of the church. See Baum. 
 
 VESTURE OF LAND. A phrase in- 
 cluding all things, trees excepted, which grow 
 upon the surface of the land and clothe it 
 externally. * 
 
 He who has the vesture of land has a right, 
 generally, to exclude others from entering 
 upon the superficies of the soil. Co. Litt. 
 46; Hamm. N. P. 151. See 7 East, 200. 
 
 VETERA STATUTA (Lat.). The 
 name of Vetera statuta — ancient statutes — 
 has been given to the statutes commencing 
 with Magna Charta and ending with those of 
 Edward II. Crabb, Eng. Law, 222. 
 
 VETITUM NAMIUM (Law Lat. veti- 
 tum, forbidden, namium, taking). Where 
 the bailiff' of a lord distrains beasts or goods 
 of another, and the lord forbids the bailiff to 
 deliver them when the sheriff" comes to make 
 replevin, the owner of the cattle may de- 
 mand satisfaction in placitum de vetito namio. 
 Co. 2d Inst. 140; Record in Thesaur. Scacc; 
 2 Bla. Com. 148. See Withernam. 
 
 VETO (Lat. I forbid). A term including 
 the refusal of the executive officer whose as- 
 sent is necessary to perfect a law which has 
 been passed by the legislative body, and the 
 message which is usually sent, stating such re- 
 fusal and the reasons therefor. 
 
 By the constitution of the United States gov- 
 ernment, the president has a power to prevent 
 the enactment of any law, by refusing to sign 
 
VEXATION 
 
 784 
 
 VIABILITY 
 
 the same after its passage, unless it be subse- 
 quently enacted by a vote of two-thirds of each 
 house. TJ. S. Const, art. 1, § 7. When a bill is 
 engrossed, and has received the sanction of both 
 houses, it is transmitted to the president for his 
 approbation. If he approves of it, he signs it. 
 If he does not, he sends It, with his objections, 
 to the house in which it originated, and that 
 house enter the objections on their journal and 
 proceeds to reconsider the bill. See Story, Const. 
 § 878 ; 1 Kent, Comm. 239. Similar powers are 
 possessed by the governors of many of the 
 states. , 
 
 The veto power of the British sovereign has 
 not been exercised for more than a century. It 
 was exercised once during the reign of Queen 
 Anne. 10 Edinburgh Kev. 411 ; Parks, Lect. 
 126. But anciently the king frequently replied, 
 Le roy s'avisera, which was in effect withholding 
 his assent. In France the king had the initiative 
 of all laws, but not the veto. See 1 Toullier, nn. 
 39, 42, .52, note 3. 
 
 VEXATION. The injury or damage 
 -which is suffered in consequence of the tricks 
 of another. 
 
 VEXATIOUS SUIT. Torts. A suit 
 which has been instituted maliciously, and 
 -witliout probable cause, whereby a damage 
 has ensued to the defendant. 
 
 The suit is either a criminal prosecution, a 
 conviction before a magistrate, or a civil ac- 
 tion. The suit need not be altogether with- 
 out foundation : if the part which is ground- 
 less has subjected the party to an inconve- 
 nience to which he would not have been ex- 
 posed had the valid cause of complaint alone 
 been insisted on, it is injurious ; 4 Taunt. 
 616 ; 4 Co. 14; 1 Pet. C. C. 210; 4 S. & R. 
 19, 23. 
 
 To make it vexatious the suit must have 
 ■been instituted maliciously. As malice is not 
 in any case of injurious conduct necessarily to 
 be inferred from the total absence of probable 
 oause for exciting it, and in the present in- 
 stance the law will not allow it to be inferred 
 from that circumstance, for fear of being mis- 
 taken, it casts upon the suffering party the 
 onus of proving express malice ; 2 Wills. 
 307 ; 2 B. & p. 129. But see what Gibbs, 
 C. J., says, in Berley vs. Bethune, 5 Taunt. 
 583 ; see, also, 1 Pet. C. C. 210 ; 2 Browne, 
 Penn. Apx. 42, 49 ; Add. Penn. 270. 
 
 If is necessary that the prosecution should 
 have been carried on without probable cause. 
 The law presumes that probable cause existed 
 until the party aggrieved can show to the con- 
 trary. Hence he is bound to show the total 
 absence of probable cause ; 5 Taunt. 580 ; 
 1 Camp. 199. See 3 Dowl. Pari. Cas. 160; 
 
 1 Term, 520 ; Bull. N. P. 14 ; 4 Burr. 1974; 
 
 2 B. & C. 693 ; 4 Dowl. & K. 107 ; 1 Gow, 
 20 ; 1 Wils. 232 ; Cro. Jac. 194. He is also 
 under the same obligation when the origi- 
 nal proceeding was a civil action ; 2 Wils. 
 307 ; but see SIalicious Pkosecution. 
 
 The damage which the party injured sus- 
 tains from a vexatious suit for a crime is 
 either to his person, his reputation, his estate, 
 or his relative rights. First, iSrhenever im- 
 prisonment is occasioned by a malicious un- 
 founded criminal prosecution, the injury is 
 
 complete although the detention may have 
 been momentary and the party released on 
 bail; Carth. 416. Second, when the bill of 
 indictment contains scandalous aspersions 
 likely to impair the reputation of the accused, 
 the damage is complete. See 12 Mod. 210; 
 2 B. & Aid. 494; 3 Dowl. & R. 669. Third, 
 notwithstanding his person is left at liberty, 
 and his character is unstained by the proceed- 
 ings (as, where the indictment is for a tres- 
 pass, Carth. 416), yet if he necessarily incurs 
 expense in defending himself against the 
 charge, he has a right to have his losses made 
 good ; 10 Mod. 148, 214 ; Gilb. 185. Fourth, 
 if a master loses the services and assistance of 
 his domestics in consequence of a vexations 
 suit, he may claim a compensation ; Hamm. 
 N. P 275. 
 
 With regard to a damage resulting from a 
 civil action, when prosecuted in a court of 
 competent jurisdiction, the only detriment 
 the party can sustain is the imprisonment of 
 his person, or the seizure of his property; 
 for, as to any expense he may be put to, this, 
 in contemplation of law, has been fully com- 
 pensated to him by the costs adjudged; 4 
 Taunt. 7 ; 1 Mod. 4 ; 2 id. 306. But where 
 the original suit was coram non judice, the 
 party, as the law formerly stood, necessarily 
 incurred expense without the power of remu- 
 neration, unless by this action ; because any 
 award of costs the court might make would 
 have been a nullity. However, by a late de- 
 cision, such an adjudication was holden unim- 
 peachable, and that the party might well have 
 an action of debt to recover the amount ; 1 
 Wils. 816. So that the law, in this respect, 
 seems to have taken a new turn ; and perhaps 
 it would now be decided that no action can 
 under any other circumstances but imprison- 
 ment of the person or seizure of the property 
 be maintained for suing in an improper court. 
 See Carth. 189. 
 
 See, in general. Bacon, Abr. Action on 
 the Case (H) ; Viner, Abr. Action (H c); 
 Comyns, Dig. Action upon the Case upon 
 Deceit; 5 Am. L. J. 514 ; Yelv. 105 a, note 
 2; Bull. Nisi P. 13; 3 Selw. N. P. 135; 
 Co. Litt. Day's ed. 161, n. ; 1 Saund. 230, n. 
 4 ; 3 Sharsw. Bla. Com. 126, n. ; Malicious 
 Pkoskcution. 
 
 VEXED QUESTION. A question or 
 point of law often discussed or agitated, but 
 not determined or settled. 
 
 VI ET ARMIS (Lat.). With force and 
 arms. See Trespass. 
 
 VIA (Lat.). A cart-way, — which also in- 
 cludes a foot-way and a horsfe-way. See 
 Way. 
 
 VIABILITY (from the French vie)> 
 Capability of living. A term used to denote 
 the power a new-born child possesses of 
 continuing its independent existence. 
 
 That a child may be viable, it is necessary 
 that m)t only the organs should be in a normal 
 state, but likewise all the physiological and 
 pathological causes which are capable of op- 
 
VIABLE 
 
 785 
 
 VICE-PRESIDENT 
 
 posing the establishment or prolongiition of 
 its life be absent. 
 
 Although a child may be bom with every 
 appearance of health, yet, from some malfor- 
 mation, it may not possess the physical power 
 to maintain life, but which must cease from 
 necessity. Under these circumstances, it can- 
 not be said to exist but temporarily, — no 
 longer, indeed, than is necessary to prove that 
 a continued existence is impossible. 
 
 It is important to make a distinction be- 
 tween a viable and a non- viable child, although 
 the latter may outlive the former. The 
 viable child may die of some disease on the 
 day of its birth, while a non-viable child may 
 live a fortnight. The former possesses the 
 organs essential to life, in then- integrity ; 
 while the latter has some imperfection which 
 prevents the complete establishment of life. 
 
 As it is no evidence of non-viability that a 
 child dies within a few hours of its birth, 
 neither is it a proof of viability if a child ap- 
 pears to be well and the function of respira- 
 tion be fully established. 
 
 There are many affections which a child 
 may have at birth, that are not necessarily 
 mortal : such as transposition of some of the 
 organs, and other malformations. There are 
 also many diseases which, without being ne- 
 cessarily mortal, are an impediment to the 
 establishment of independent life, aflfecting 
 different parts of the system : such as inflam- 
 mation, in addition to many malformations. 
 There is a third class, in which are many af- 
 fections that are necessarily mortal : such as 
 a general softening of the mucous membrane 
 of the stomach and intestines, developed be- 
 fore birth, or the absence of the stomach, and 
 a number of other malformations. These dis- 
 tinctions are of great importance ; for children 
 affected by peculiarities of the first order 
 must be considered as viable ; affections of 
 the second may constitute extenuating cir- 
 cumstances in questions of infanticide ; while 
 those of the third admit of no discussion on 
 the subject of their viability. 
 
 The question of viability presents itself to 
 the medical jurist under two aspects : first, 
 with respect to infanticide, and second, with 
 respect to testamentary grants and inherit- 
 ances. Billard on Infants, translation by 
 James Stewart, M.D., Appendix; Briand, 
 M6d. Lfeg. tfere partie, c. 6, art. 2. See 2 
 Savigny, Dr. Rom. Append. III., for a 
 learned discussion of this subject. 
 
 VIABLE (Lat. vitOB habilis, capable of 
 living). A term applied to a child who is 
 born alive in such an advanced state of form- 
 ation as to be capable of living. Unless he 
 is born viable, he acquires no rights,^ and can- 
 not transmit them to his heirs, and is consid- 
 ered as if he had never been born. 
 
 VICARAGE. la Ecclesiastical Law. 
 The living or benefice of a vicar: usually 
 consisting of the small tithes. 1 Bum, Eccl. 
 Law, 75, 79. 
 
 Vol. II.— 50 
 
 VICE. A term used in the civil law and 
 in Louisiana, by which is meant a defect in a 
 thing ; an imperfection. For example, epi- 
 lepsy in a slave, roaring and crib-biting in a 
 horse, are vices. Redhibitory vices are those 
 for which the seller will be compelled to 
 annul a sale and take back the thing sold. 
 Pothier, Vente, 203 ; La. Civ. Code, art. 2498 
 -2507. 
 
 VICE-ADMIRAL. The title of an officer 
 in the navy : the next in rank after the admi- 
 ral. Hereafter vacancies occurring in the 
 grades of admiral and vice-admiral in the 
 United States navy shall not be filled by pro- 
 motion or in any other manner ; and when 
 the offices of said grades shall become vacant, 
 the grade itself shall cease to exist ; R. S. § 
 1362. 
 
 VICE-CHANCELLOR. A judge, as- 
 sistant to the chancellor. He lield a sepa- 
 rate court, and his decrees were liable to be 
 reversed by the chancellor. He was first ap- 
 pointed 53 Geo. in. In 1841 two additional 
 vice-chancellors were appointed ; and there 
 were then three vice-chancellor's courts. 3 
 Sharsw. Bla. Com. 54, n. 
 
 There is also a vice-chancellor of the 
 county palatine of Lancaster ; 3 Steph. Com. 
 331. By the Judicature Act of 1873, the 
 vice-chancellors are transposed to the high 
 courts of justice and appointed judges of the 
 chancery division. On the death or retire- 
 ment of any one of them, his successor will 
 be styled a judge of her majesty's high court 
 of justice. There is one vice-chancellor of 
 the court of justice in Ireland. Whart. Lex ; 
 Moz. & W. See Chancellor ; Chancel- 
 lor's Courts in the Two Universities. 
 
 VICE-CONSUL. An officer who per- 
 forms the duties of a consul within a part of 
 the district of a consul, or who acts in the 
 place of a consul. See 1 PhiU. Ev. 306 ; 
 Consul. 
 
 VICE-PRESIDENT OP THE UNITED 
 STATES. The title of the second officer, 
 in point of rank, in the government of the 
 United States. He is to be elected in the man- 
 mer pointed out under the article President 
 of the United States. See, also, 3 Story, 
 Const. § 1447 et seq. His office in point of 
 duration is coextensive with that of the pre- 
 sident. The constitution of the United States, 
 art. i. s. 3, clause 4, directs that "the vice- 
 president of the United States shall be presi- 
 dent of the senate, but shall have no vote 
 unless they be equally divided." And by 
 articles 2, s. 1, clause 6, of the constitution, it 
 is provided that ' ' in case of the removal of 
 the president from office, or of his death, re- 
 signation, or inability to discharge the powers 
 and duties of the ^id office, the same shall 
 devolve on the vice-president." 
 
 When the vice-president exercises the office 
 of president, he is called the President of the 
 United States. 
 
VICE VERSA 
 
 786 
 
 VILLEIN 
 
 VICE VERSA (Lat.). On the contrary ; 
 on opposite sides. 
 
 VICECOMES (Lat.). The sheriff. 
 VICECOMES NON MISIT BREVE 
 
 (Lat. the sheriff did not send the -writ). An 
 entry made on the record when nothing has 
 been done by virtue of a writ which has been 
 directed to the sheriff. 
 
 VICINAGE. The neighborhood; the 
 venue. 
 
 VICINETTTM (Lat.). The neighbor- 
 hood; vicinage; the venue. Co. Litt. 158 6. 
 
 VICIOUS INTROMISSIOK. In 
 Scotch law, a meddling with the movables 
 of a deceased, without confirmation or pro- 
 bate of his will or other title. Whart. Lex. 
 
 VICONTIEL. Belonging to the sheriff. 
 
 VIDELICET (Lat.). A Latin adverb, sig- 
 nifying to wit, that is to say, namely ; scilicet. 
 This word is usually abbreviated viz. 
 
 The office of the videlicet is to mark that 
 the party does not undertake to prove the 
 precise circumstances alleged ; and in such 
 cases he is not required to prove them ; 
 Steph. PI. 309 ; 7 Cow. 42 ; 8 Taunt. 107 ; 
 Greenl. Ev. § 60; 1 Litt. Ky. 209. See 
 Yelv. 94 ; 3 Saund. 291 a, note; 4 B. & P. 
 465; 2 Pick. 214; 47 111. 175. 
 
 VIDUITY. Widowhood. 
 
 VIEW. Inspection ; a prospect. 
 
 Every one is entitled to a view from his 
 premises ; but he thereby acquires no right 
 over the property of his neighbors. Ihe 
 erection of buildings which obstruct a man's 
 view, therefore, is not unlawful, and. such 
 buildings cannot be considered a nuisance ; 9 
 Co. 58 6. See Ancient Lights ; Nui- 
 sance ; Viewers ; 16 Am. L. Rev. 628 ; 63 
 Me. 385. 
 
 VIEW, DEMAND OP. In Practice. 
 In most real and mixed actions, in order to 
 ascertain the identity of land claimed with 
 that in the tenant's possession, the tenant is 
 allowed, after the demandant has counted, to 
 demand a view of the land in question, or, if 
 the subject of claim be rent, or the like, a 
 view of the land out of which it issues. 
 Viner, Abr. View; Comyns, Dig. View; 
 Booth, 37; 2 Saund. 45 6; 1 Reeve, Hist. 
 Eng. Law, 435. 
 
 This right, however, is confined to real or 
 mixed actions ; for in personal actions the view 
 does not lie. In the action of dower imde nihil 
 habet, it has been much , questioned whether the 
 view be demandable or not ; 2 Saund. 44, n. 4 ; 
 and there are other real and mixed actions in 
 which it is not allowed. The view being granted, 
 the course of proceeding is to issue a writ com- 
 manding the sheriif to cause the defendant to 
 have a view of the land. It being the interest 
 of the demandant to expedite the proceedings, 
 the duty of suing out the writ lies upon him, 
 and not upon the tenant; and when, in obe- 
 dience to its exigency, the sheriif causes view to 
 be made, the demandant is to show to the tenant, 
 in all ways possible, the thing in demand, with 
 its metes and bounds. On the return of the 
 writ Into court, the demandant must count de 
 
 novo — that is, declare again; Comyns, Dig 
 Fleader (2 TB); Booth, 40; and the pleadings 
 proceed to issue. 
 
 This proceeding of demanding view is, in the 
 present rarity of real actions, unknown in prac- 
 tice. 
 
 VIEW OP FRANKPLEDGE. In Eng- 
 liah La'w. An examination to see if every 
 freeman within the district had taken the 
 oath of allegiance, and found nine freemen 
 pledges for his peaceable demeanor. 1 Reeve, 
 Hist. JIng. Law, 7. It took place, originally, 
 once in each year, after Michaelmas, and sub- 
 sequently twice, after Easter and Michaelmas, 
 at the sheriff's tourn or court-leet at that 
 season held. See Cockt-Leet ; Sheriff's 
 Tourn. 
 
 VIEWERS. Persons appointed by the 
 courts to see and examine certain matters and 
 make a. report of the facts, together with 
 their opinion, to the court. In practice, they 
 are usually appointed to lay out roads, and 
 the like. 
 
 VIPGAGE. See Vadium Vivum. 
 
 VIGILANCE. Proper attention in pro- 
 per time. 
 
 The law requires a. man who has a claim 
 to enforce it in proper time, while the adverse 
 party has it in his power to defend himself; 
 and if by his neglect to do so he cannot 
 afterwards establish such claim, the maxim 
 vigilantihus non dormientihus leges subser- 
 viunt acquires full force in such case. For 
 example, a claim not sued for within the 
 time required by the acts of limitation will 
 be presumed to be paid ; and the mere pos- 
 session of corporeal real property as if in 
 fee-simple, and without admitting any other 
 ownership for sixty years, is a sufficient title 
 against all the world, and cannot be im- 
 peached by any dormant claim. 3 Bla. Com. 
 196, n. ; 4 Co. 11 b. 
 
 VILL. In England this word was used to 
 signify the parts into which a hundred or wa- 
 pentake was divided. Fortescne, de Laud. c. 
 24. See Co. Litt. 115 6. It also signifies a 
 town or city. Barrington, Stat. 133. 
 
 VILLAIN. An epithet used to cast con- 
 tempt and contumely on the person to whom 
 it is applied. 
 
 To call a man a villain in a letter written 
 to a third person will entitle him to an action 
 without proof of special damages ; 1 B. & 
 P. 331. 
 
 VILLEIN (vilis, base, or villa, estate). 
 A person attached to a manor, who was sub- 
 stantially in the condition of a slave, who 
 performed the base and menial work upon 
 the manor for the lord, and was, generally, a 
 subject of property and belonging to him. 1 
 Washb. R. P. 26. 
 
 The feudal villein of the lowest order, un- 
 protected as to property, and subject to the 
 most ignoble services. But his circumstances 
 were very different from the slave of the 
 Southern states, for no person was in the eye 
 of the law a villein except as to his master ; 
 
VILLEIN IN GROSS 
 
 787 
 
 VIRGINIA 
 
 in relation to all other persons he was a free- 
 man. Littleton, Ten. ss. 189, 190; Hallam, 
 Middle Ages, vol. 1, 122, 124; vol. 2, 199. 
 
 VILLEIN IN GROSS. A villein an- 
 nexed to the person of the lord, and trans- 
 ferable by deed from one person to another. 
 Littleton, § 181. 
 
 VILLEIN REG-ARDANT. A villein 
 annexed to the manor or land ; a serf. 
 
 VILLEIN SOCAGE (Sajc. soc, free, or 
 Lat. soca, a, plough). The villeins, from 
 living on one piece of land, came at last to 
 be allowed to hold it by tenure of villeinage, 
 e. g. uncertain menial services. These ser- 
 vices at last became fixed ; the tenure was 
 then called villein socage. 1 Washb. R. P. 
 26. 
 
 VILLEINAGE. SeeViJLLEiN Socage. 
 
 VILLENOUS JUDGMENT. In Old 
 English Latir. A judgment given by the 
 common law in attaint, or in cases of con- 
 spiracy. 
 
 Its effects were to make the object of it 
 lose his liberam legem and become infamous. 
 He forfeited his goods and chattels, and his 
 lands during life ; and this barbarous judg- 
 ment further required that his lands should 
 be wasted, his houses razed, his trees rooted 
 up, and that his body should be cast into 
 prison. He could not be a juror or witness. 
 Burr. 996, 1027 ; 4 Bla. Com. 136. 
 
 VINCULO MATRIiaONII. See A 
 
 Vinculo Matrimonii ; Divokce. 
 VINDICATION. In CivU Law. The 
 
 claim made to property by the owner of it. 
 1 Bell, Com. 281, 5th ed. See Retendi- 
 
 CATION. 
 
 VINDICTIVE DAMAGES. See Dam- 
 ages; Exemplary Damages. 
 
 VIOLATION. An act done unlawfully 
 and with force. In the English statute of 
 25 Edw. III. St. 5, c. 2, it is declared to be 
 high treason in any person who shall violate 
 the king's companion ; and it is equally high 
 treason in her to suffer willingly such viola- 
 tion. This word has been construed under 
 this statute to mean carnal knowledge; 3 
 Inst. 9 ; Bacon, Abr. Treason (E). 
 
 VIOLENCE. The abuse of force. Th6o- 
 rie des Lois criminelles, 32. That force 
 which is employed against common right, 
 against the laws, and against public liberty. 
 Merl. Rgpert. 
 
 In cases of robbery, in order to convict the 
 accused it is requisite to prove that the act 
 was done with violence ; but this violence is 
 not confined to an actual assault of the person, 
 by beating, knocking down, or forcibly wrest- 
 ing from him ; on the contrary, whatever goes 
 to intimidate or overawe, by the apprehension 
 of personal violence or by fear of life, with a 
 view to compel the delivery of property, 
 equally falls within its limits; Alison, Pr. 
 Cr. Law of Scotl. 228 ; 4 Binn. 379 ; 2 Russ. 
 Cr. 61 ; 1 Hale, PI. Cr. 553. When an arti- 
 
 cle is merely snatched, as by a sudden pull, 
 even though a momentary force be exerted, it 
 is not such violence as to constitute a robbery ; 
 2 East, PI. Cr. 702 ; 2 Russ. Cr. 68 ; Dig. 4. 
 2. 2. 3. 
 
 VIOLENT PROFITS. In Scotch Law. 
 
 The gains made by a tenant holding over are 
 so called. Erskine, Inst. 2. 6. 54. 
 
 VIOLENTLY. In Pleading. This 
 word was formerly supposed to be necessary 
 in an indictment, in order to charge a robbery 
 from the person ; but it has been holden un- 
 necessary ; 2 East, PI. Cr. 784 ; 1 Chitty 
 Crim. Law, *244. The words "feloniously 
 and against the will," usually introduced in 
 such indictments, seem to be sufficient. It is 
 usual, also, to aver a putting in fear ; though 
 this does not seem to be requisite. 
 
 VIRGA. An obsolete word, which signi- 
 fies a rod or staff, such as sheriffs, bailiffs, 
 and constables carry as a badge or ensign of 
 their office. More commonly spelled verge, 
 q. V. 
 
 Hence verger, one who carried a white 
 wand before the judges. Toml. A verger 
 now commonly signifies an inferior officer in 
 a cathedral or parish church. Moz. & W. 
 
 The stick or wand with which persons are 
 in England admitted as tenants. 
 
 VIRGINIA. One of the thirteen origi- 
 nal United States. 
 
 The name was given in honor of Queen Eliza- 
 beth, the virgin queen of England. In 1606, 
 James I. granted letters patent for planting col- 
 onies in Virginia. Jheee grants in the letters 
 patent embraced a country extending along tlie 
 sea^coast between 34° and 45° nortli latitude, 
 and were made to two companies : one of them 
 to Sir Thomas Gates and others — named the 
 First Colony of Virginia — the other " to Tho: 
 Hanham and others, of the town of Plimouth," 
 which was called the Second Colony of Virginia. 
 The government prescribed for these colonies 
 was that each should have a council, consisting 
 of thirteen persons, appointed by the king, to 
 govern and order all matters according to laws 
 and instructions given them by the king. There 
 was also a council in England, of thirteen per- 
 sons, appointed by the crown to have the super- 
 vising, managing, and direction of all matters 
 that should concern the government of the colo- 
 nies. This charter was followed by royal instruc- 
 tions dated the 20th November, 1606. See 1 
 Hening, Va. Stat. 76, 571. Under this charter a 
 settlement was made at Jamestown in 1607, by 
 the first colony. Upon the petition of the com- 
 pany, a. new charter was granted by king James, 
 on the 23d May, 1609, to the treasurer and com- 
 pany of the first (or southern) colony, for the 
 further enlargement and explanation of the privi- 
 leges of that company. 1 Hening, Stat. 80. 
 
 This charter granted to the company in abso- 
 lute property the lands extending from Cape or 
 Point Comfort (at the mouth of James River) 
 along the sea-coast two hundred miles to the 
 northward, and from the same point along the 
 sea-coast two hundred miles to the southward, 
 and up into the land throughout, from sea to 
 sea, west and northwest, and, also, all islands 
 lying within one hundred miles of the coast of 
 both seas of the precinct aforesaid. A new 
 council in England was established, with power 
 
VIRGINIA 
 
 788 
 
 VIRGINIA 
 
 to the company to fill all vacancies therein by 
 election. 
 
 On the 13th of March, 16^^, king James 
 granted a third charter to the first company, en- 
 larging its domain so as to include all islands 
 within three hundred leagues I'rom its bordors on 
 the coast of either sea. In 1612, a considerable 
 proportion of lands previously held and culti- 
 vated in common was divided into three-acre lots 
 and a lot appropriated in absolute right to each 
 individual. Not long afterwards, fifty acres 
 were surveyed and delivered to each of the colo- 
 nists. In 1618, by a change of the constitution 
 of the colony, burgesses elected by the people 
 were made a branch of the legislature. Up to 
 this time the settlement had been gradually in- 
 creasing in number, and in 1624, upon a writ of 
 quo warranto, a judgment was obtained dissolv- 
 ing the company and re-vestiiig its powers in the 
 > crown. In 1651 the plantation of Virginia came, 
 by formal act, under the obedience and govern- 
 ment of the commonwealth of England, the 
 colony, however, still retaining its former consti- 
 tution. A new charter was to be granted, and 
 many important privileges were secured. ' In 
 1680 a change was made in the colonial govern- 
 ment, divesting the burgesses of the exercise of 
 judicial power in the last resort, as had before 
 that time been practised by that body, and allow- 
 ing appeals from judgments of the general courts, 
 composed of the governor and council, to the 
 king in council, where the matter in controversy 
 exceeded the value of £300 sterling. Marshall, 
 Col. 163 ; 1 Campb. 337. 
 
 By the treaty of 1763, all the conquests made 
 by the French in North America, including the 
 territory east of the Mississippi, were ceded to 
 Great Britain. 
 
 The constitution of the colonial government of 
 Virginia seems never to have been precisely fixed 
 and accurately adjusted in any written memo- 
 rials that are now accessible. The powers exer- 
 cised by the burgesses varied at different periods. 
 The periods of their election and the length of 
 time they continued in ofBce it is difficult to as- 
 certain from the records of colonial history, and 
 the qualifications of voters to elect them varied 
 much at different periods. See Kev. Code, 38, 
 Leigh's note ; 3 Burk, App. 1. On the 12th of 
 June, 1776, was unanimously adopted by the 
 convention a declaration of rights pertaining to 
 the people, as a basis and foundation of govern- 
 ment was adopted by the convention. This de- 
 claration still remains a part of the Virginia 
 Code. On the 39th of June, 1776, Virginia 
 adopted a constitution by a unanimous vote of 
 the convention. The Articles of Confederation 
 were not finally adopted by congress until the 
 15th of November, 1777, and were adopted, sub- 
 ject to the ratification of the states. These arti- 
 cles were laid before the Virginia Assembly on 
 the 9th of December, 1777, and on the 15th unan- 
 imously assented to. In compliance with the 
 recommendation of congress, by a resolution of 
 September 6, 1780, Virginia, by an act passed the 
 2d of January, 1781, proffered a cession of her 
 western lands. The cession was finally com- 
 pleted and accepted in 1784. Virginia as early 
 as 1785 prepared to erect Kentucky into a state, 
 and this was finally effected in June, 1792. 
 
 The state constitution framed and adopted by 
 Virginia in 1776 gave way to a second that was 
 framed in convention, adopted by the people, 
 and went into operation in 1830. This second 
 constitution was superseded by a third, which 
 was framed in convention of 1851, and, being 
 adopted by the people, took effect in 1853. 
 
 A convention assembled at Alexandria Febru- 
 ary 13, 1864, composed of delegates from such 
 
 portions of Virginia as were then within the lines 
 of the Union army and had not been included in 
 the recently-formed state of West Virginia. 
 This convention adopted a constitution April ll" 
 1864, but it was not submitted to the people Jor 
 ratification. The present constitution of the 
 state was framed by a convention called under 
 the reconstruction act of congress which met at 
 Richmond and completed its labors in 1868. 
 Under the authority of an act of congi-ess ap. 
 proved April 10, 1869, the Instrument was sub- 
 mitted to the vote of the people and adopted. 
 
 Under this constitution, every male citizen 
 of the commonwealth, of the age of twenty- 
 one years, who has been a resident of the 
 state for one year and of the county, city, or 
 town where he offers to vote for three months 
 next preceding an election, and no other person, 
 shall be qualified to vote for members of the gen- 
 eral assembly and all officers elective by the 
 people ; but no person in the military, naval, or 
 marine service of the United States shall he 
 deemed a resident of this state by reason of be- 
 ing stationed therein. And no person shall have 
 the right to vote who is of unsound mind, or a 
 pauper, or a non-commissioned officer, soldier, 
 seaman, or marine, in the service of the United 
 States, or who has been convicted of bribery in 
 an election, or of any infamous offence, or who, 
 while a citizen of this state, has, since the adop- 
 tion of this constitution, fought a duel with a 
 deadly weapon, or sent or accepted a challenge 
 to fight a duel , either within or beyond the boun- 
 daries of the state. 
 
 All elections are by ballot, and all persons en- 
 titled to vote are eligible to any office within the 
 gift of the people, except as restricted by the 
 constitution. No one is entitled to sit as juror, 
 except those entitled to vote and hold office. 
 
 Under the constitution a general registry law 
 must be enacted by the general assembly, and 
 every person applying for registration must take 
 and subscribe an oath to the effect that he is not 
 disqualified for voting under the constitution, 
 and that he will support and defend the same to 
 the best of his ability. No voter during the time 
 of holding any election at which he is entitled 
 to vote shall be compelled to perform military 
 service, except in time of war or public danger, 
 to work upon public roads, or to attend any 
 court as suitor, juror, or witness, and no voter 
 shall be subject to arrest under any civil process 
 during his attendance at elections, or in going to 
 or returning from them. 
 
 Lebislative Depabtment. — The legislative 
 power of the commonwealth is vested in a gen- 
 eral assembly, consisting of a senate and house 
 of delegates. The house of delegates is elected 
 biennially by the voters of the several cities and 
 counties, on the Tuesday succeeding the first 
 Monday in November. tJnder the terms of the 
 constitution it consists of 138 members. 
 
 The senators are elected for the term of four 
 years, for the election of whom the counties, 
 cities, and towns shall be divided into not more 
 than forty districts. Under the constitution 
 forty-three senators are elected, their terms end- 
 ing at different times so that those bearing odd 
 numbers vacate their office every alternate two 
 years, their places being filled at the general 
 election ; and so with those bearing even num- 
 bers. After the census of the United States, 
 and every tenth year thereafter, provision is made 
 for a reapportionment. 
 
 Any person may be elected senator or repre- 
 sentative who is actually a resident within his 
 district and qualified to vote. The removal of 
 any person elected from his district vacates the 
 
VIRGINIA 
 
 789 
 
 VIRGINIA 
 
 office. The general assembly meets, unless of- 
 tener convened by the governor, annually, but 
 no session shall continue longer than ninety 
 days without the concurrence of three-ilfths of 
 the members. 
 
 ExEcnTivB Department. — The chief execu- 
 tive power of the commonwealth is vested in a 
 governor. He holds his office for the term of four 
 years, to commence on the first day of January 
 next succeeding his election, and is ineligible 
 to the same office for the term next succeeding 
 that for which he was elected, and to any other 
 office during his term of seiTice. He is elected 
 by the voters at the times and places of choosing 
 members of the general assembly. Returns of the 
 election are to be transmitted under seal by the 
 proper officer to the secretary of the common- 
 wealth, who is to deliver them to the speaker ot 
 the house of delegates on the first day of the next 
 session of the general assembly. The speaker of 
 the house of delegates must within one week there- 
 after, in the presence of a majority of the senate 
 and house of delegates, open the said returns ; 
 and the votes are then counted. The person hav- 
 ing the highest number of votes is to be de- 
 clared elected ; but if two or more shall have 
 the highest and an equal number of votes, one 
 of them'is to be chosen governor by the joint 
 vote of the two houses of the general assembly. 
 Contested elections for governor are decided by a 
 like vote ; and the mode of proceeding in such 
 cases is prescribed by law. 
 
 No person is eligible to the office of governor 
 unless he has attained the age of thirty years, 
 has been a citizen of the United States for ten 
 years next preceding his election, and has been 
 a citizen of Virginia for three years next preced- 
 ing his election. 
 
 The governor must reside at the seat of govern- 
 ment, receives five thousand dollars for each 
 year of his service, and, while in office, is to re- 
 ceive no other emolument from this or any other 
 government. 
 
 He is to take care that the laws be faithfully 
 executed ; communicate to the general assembly, 
 at every session, the condition of the common- 
 wealth ; recommend to their cdnsideration such 
 measures as he may deem expedient ; and con- 
 vene the general assembly, on application of a 
 majority of the members of both houses thereof, 
 or when in his opinion the interest of the com- 
 monwealth may require it. He is commander- 
 in-chief of the land and naval forces of the state ; 
 has power to embody the militia to repel inva- 
 sion, suppress insurrection, and enforce the exe- 
 cution of the laws ; conduct, either in person or 
 in such other manner as is prescribed by law, 
 all intercourse with other and foreign states ; 
 and, during the recess of the general assembly, 
 fill pro tempore all vacancies in those offices for 
 which the constitution and laws make no provi- 
 sion : but his appointments to such vacancies are 
 by commissions to expire at the end of thirty 
 days after the commencement of the next session 
 of the general assembly. He has power to re- 
 mit fines and penalties in such cases and under 
 such rules and regulations as may be prescribed 
 by law ; and, except when the prosecution has 
 been carried on by the house of delegates, or the 
 law shall otherwise particularly direct, to grant 
 reprieves and pardons after conviction ; to re- 
 move political disabilities consequent upon con- 
 viction for offences committed prior or subse- 
 quently to the adoption of this constitution ; and 
 to commute capital punishment. But he muf t 
 communicate to the general assemWy, at each 
 session, the particulars of every case of fine or pen- 
 alty remitted, of reprieve or pardon granted, and 
 
 of punishment commuted, with his reasons for 
 remitting, granting, or commuting the same. 
 
 He may require information in writing from 
 the officers in the executive department upon 
 any subject relating to the duties of their respec- 
 tive offices, and may also require the opinion in 
 writing of the attorney-general upon any ques- 
 tion of law connected with his official duties. 
 
 Commissions and grants run in the name of 
 the Commonwealth of Virginia, and must be at- 
 tested by the governor, with the seal of the com- 
 monwealth annexed, 
 
 A UtMtenant-Ocieemor is elected at the same 
 time, and for the same term, as the governor; 
 and his qualifications and the manner of his elec- 
 tion in all respects are the same. 
 'In case of the removal of the governor from 
 office, or of his death, failure to qualify, resig- 
 nation, or removal from the state, or inability to 
 discharge the powers and duties of the office, the 
 said office, with its compensation, devolves upon 
 the lieutenant-governor ; and the general assem- 
 bly is to provide by law for the discharge of the 
 executive functions in other necessary cases. 
 
 The lieutenant-governor is president of the 
 senate, but has no vote, and, while acting as 
 such, receives a compensation equal to that al- 
 lowed to the speaker of the house of delegates. 
 
 A secretary of the commonwealth, treasurer, 
 and auditor of public accounts are elected by the 
 joint vote of the two houses of the general as- 
 sembly, and continue in office for the term of two 
 years unless sooner relieved. 
 
 JnDiciABT Department. — The judiciary de- 
 partment consists of a supreme court of appeals' 
 circuit courts, and county courts. 
 
 The Supreme Court of Appeals consists of five 
 judges, any three of whom may hold a court. It 
 has appellate jurisdiction only, except in cases 
 of habeas corpus, mandamus, and prohibition. It 
 has no jurisdiction in civil cases where the matter 
 in controversy, exclusive of costs, is less in value 
 or amount than five hundred dollars, except in 
 controversies concerning the title or boundaries 
 of land, the bequests of a will, the appointment 
 or qualification of a personal representative, 
 guardian, committee, or curator, or concerning 
 a mill, roadway, ferry, or landing ; or the right of 
 a corporation or of a county to levy tolls or taxes, 
 and except in cases of habeas corpus, mandamus, 
 and prohibition, or the constitutionality of a law. 
 I'rovided, that the assent of a majority of the 
 judges elected to the bench shall be required to 
 declare any law null and void by reason of its 
 repugnance to the federal constitution or to the 
 constitution of this state. The judges are chosen 
 by the joint vote of the two houses of the gene- 
 ral assembly, and hold their office for twelve 
 years ; they shall, when chosen, have held a ju- 
 dicial station in the United States, or shall have 
 practised law in this or some other state for five 
 years. 
 
 Special courts of appeals, to consist of not less 
 than three nor more than five judges, may be 
 formed of the judges of the supreme court of 
 appeals, and of the circuit courts, or any of 
 them, to try any cases remaining on the dockets 
 of the present court of appeals when the judges 
 thereof cease to hold their offices ; or to try any 
 cases which may be on the dockets of the su- 
 preme court of appeals established by this consti- 
 tution, in respect to which a majority of the 
 judges of said court may be so situated as to 
 make it improper for them to sit on the hearing 
 thereof; and also to try any oases on the said 
 dockets which cannot he otherwise disposed of 
 with convenient dispatch. 
 
 Wlicn a judgment or decree is reversed or af- 
 
VIKILIA 
 
 790 
 
 VISNE 
 
 firmed by the supreme court of appeals, the rea- 
 sons therefor must be stated in writing, and pre- 
 served with the record of the case. 
 
 Circuit Courts. — The state is divided into six- 
 teen judicial circuits, which may be rearranged 
 or their number increased or diminished by the 
 general assembly, whenever the public interests 
 require it. For each circuit a judge Is chosen by 
 the joint vote of the two houses of the general 
 assembly, who holds office for a term of eight 
 years, unless sooner removed in the manner pre- 
 scribed by the constitution. He must possess 
 the same qualifications as a judge of the supreme 
 court of appeals, and reside in the circuit of 
 which he is judge. A circuit court Is held at 
 least twice a year by the judges of each circuit. 
 
 County Courts. — In each county of the com- 
 monwealth there is a county court, held monthly, 
 by a judge learned in the law of the state.' Coun- 
 ties having less than eight thousand inhabitants 
 are attaclied to adjoining counties for the forma- 
 tion of districts. These judges are chosen in the 
 same manner as circuit court judges. They hold 
 their office for the term of six years, and during 
 their continuance in office must reside in their 
 district. 
 
 All the judges are commissioned by the gover- 
 nor, and receive such salaries and allowances as 
 may be determined by law, the amount of which 
 is not to be diminished during their terms of of- 
 fice. These begin on the first day of January 
 next following their appointment. 
 
 Judges may be removed from office by a con- 
 current vote of both houses of the general as- 
 sembly ; but a majority of all the members 
 elected to each house must concur in such vote ; 
 and the cause of removal must be entered on the 
 journal of each house. The j udge against whom 
 the general assembly may be about to proceed 
 receives notice thereof, accompanied by a copy 
 of the causes alleged for his removal, at least 
 twenty days before the day on which either house 
 of the general assembly acts thereupon. 
 
 An Attorney- General is elected by the voters of 
 the commonwealth for the term of four years, at 
 every election of a governor. He is commis- 
 sioned by the governor, performs such duties 
 and receives such compensation as the law pre- 
 scribes, and is removable in the manner pre- 
 scribed for the removal of judges. 
 
 Writs run in the name of the Commonwealth 
 of Virginia, and are attested by the clerks of the 
 several courts. Indictments conclude against 
 the peace and dignity of the commonwealth. 
 
 VIRILIA (Lat.). The privy members of 
 a man, to cut off which was felony at common 
 law, though the party consented to it. Bract, 
 lib. 3, p. 144. 
 
 VIRTUTE OPPICII (Lat.). By virtue 
 of his office. A sheriff, a constable, and some 
 other officers may virtute' officii apprehend a 
 man who has been guilty of a crime in their 
 presence. 
 
 VIS (Lat. force). Any kind of force, 
 violence, or disturbance relating to a man's 
 person or his property. 
 
 VIS IMPRESSA (Lat.). Immediate 
 force ; original force. This phrase is applied 
 to cases of trespass when a question arises 
 whether an injury has been caused by a direct 
 force or one which is indirect. When the 
 original force, or vis impressa, had ceased 
 to act before the injury commenced, then there 
 is no force, the effect is mediate, and the 
 proper remedy is trespass on the case. 
 
 When the injury is immediate consequence 
 of the force, or vis proximo, trespass vi et ar- 
 mis lies ; 3 Bouvier, Inst. n. 3483 ; 4 id. n. 
 3583. 
 
 vis MAJOR (Lat.). A superior force. 
 In law it signifies inevitable accident. 
 
 This term is used in the civil law in nearly 
 the same way that the words act of God (o. 
 u.) are used in the common law. Generally, 
 no one is responsible for an accident which 
 arises from the vis major ; but a man may he 
 so where he has stipulated that he would, and 
 when he has been guilty of a fraud or deceit; 
 2 Kent, 448 ; Pothier, Pi It a Usage, n. 48, 
 n. 60 ; Story, Bailm. § 25. 
 
 VISA. In Civil Law. The formula 
 put upon an act; a register; a commercial 
 book, in order to approve of it and authenti- 
 cate it. 
 
 VISCOUNT (Lat. vice-comes). This name 
 was made use of as an arbitrary title of honor, 
 without any office pertaining to it, by Henry 
 VI. for the first time. The sheriff or earl's 
 deputy holds the office of vice-comes, of which 
 viscount is a translation, but used, a's we have 
 just seen, in a different sense. "The dignity 
 of a viscount is next to an earl. 1 Bla. Com. 
 397. 
 
 VISITATION. The act of examining 
 into the affairs of a corporation. 
 
 The power of visitation is applicable only 
 to ecclesiastical . and eleemosynary corpora- 
 tions. 1 Bla. Com. 480 ; 2 Kyd, Corp. 174. 
 The visitation of civil corporations is by the 
 government itself, through the medium of the 
 courts of justice. See 2 Kent, 240. In the 
 United States, the legislature is the visitor of 
 all corporations founded by it for public pur- 
 poses ; 6 Pick. 427; 18 id. 328; 4 Wheat. 
 518. See Ang. & A. Corp. § 684 ; Green's 
 Brice, Ultra Vires, 47 n. 
 
 VISITATION BOOKS. Compilations 
 made out or collected by the heralds in the 
 circuits which their commissions authorized 
 them to make, for the purpose of inquiring 
 into the state of families and registering 
 marriages and descents which were verified 
 to them by oath. They are good evidence 
 of pedigree. 3 Bla. Com. 105; 3 Steph. 
 Com. 335, n. 
 
 VISITER, OR VISITOR. An inspector 
 of the government, of corporations, or 
 bodies poUtic. 1 Bla. Com. 482. See Dane, 
 Abr. Index ; 7 Pick. 303 ; 12 id. 244. 
 
 VISNE. The neighborhood ; a neighbor- 
 ing place ; a place near at hand ; the venue. 
 
 Formerly the visne was confined to the imme- 
 diate neighborhood where the cause of action 
 arose, and many verdicts were disturbed because 
 the visne was too large, which becoming a great 
 grievance, several s&tutes were passed to rem- 
 edy the evil. The 21 James I. c. 13, gives aid 
 after verdict, where the visne is partly wrong, — 
 that is, where it is warded out of too many or too 
 few places 4n the county named. The 16 & 17 
 Charles II. c. 8, goes further, and cures defects 
 of the visne wholly, so that the cause is tried by 
 a jury of the proper county. See Venue. 
 
VIVA VOCE 
 
 791 VOLUliTTARY CONVEYANCE 
 
 VIVA VOCXi (Lat. with living voice). 
 Verbally. It is said a witness delivers his 
 evidence viva voce when he does so in open 
 court : the term is opposed to deposition. It 
 is sometimes opposed to ballot : as, the 
 people vote by ballot, but their representa^ 
 tives in the legislature vote viva voce. 
 
 VIVARY. A place where living things 
 are kept : as, a park on land ; or, in the water, 
 as a pond. 
 
 VIVUM VADIUM. ■ See Vadium Vi- 
 
 VUM. 
 
 VOCATIO IN JUS (Lat.). In Roman 
 Law. According to the practice in the legis 
 actiones of the Roman law, a person having a 
 demand against another verbally cited him to 
 go with him to the praator : in jus eamus ; in 
 JUS te voco. This was denominated vocatio 
 in jus. If a person thus summoned refused 
 to go, he could be compelled by. force to do 
 go, unless he found a vindex, — that is, procu- 
 rator, or a person to undertake his cause. 
 When the parties appeared before theprsetor, 
 they went through the particular formalities 
 required by the action applicable to the cause. 
 If the cause was not ended the same day, the 
 parties promised to appear again at another 
 day, which was caUed vadimonium. See 
 Matt. V. 25. 
 
 VOID. That which has no force or effect. 
 
 Contracts, bequests, or legal proceedings 
 may be void. See those titles. 
 
 VOIDABLZi. That which has some force 
 or effect, but which, in consequence of some 
 inherent quality, may be legally annulled or 
 avoided. 
 
 As a familiar example, may be mentioned 
 the case of a contract made by an infant 
 with an adult, which may be avoided or con- 
 firmed by the former on his coming of age. 
 See Parties. 
 
 Such contracts are, generally, of binding 
 force until avoided by the party having a 
 right to annul them. Bacon, Abr. Infancy 
 (I 3); Corayns, Dig. Enfant; 3 Burr. 
 1794; 1 Nels. Ch. 55; 1 Atk. 354; Stra. 
 937; Perkins, § 12. 
 
 VOIR DIRE. A preliminary examina- 
 tion of a witness to ascertain whether he is 
 competent. 
 
 When a witness is supposed to have an 
 interest in the cause, the party against whom 
 he is called has the choice to prove such inte- 
 rest by calling another witness to that fact, 
 or he may require the witness produced to be 
 sworn on his voir dire as to whether he has 
 an interest in the cause or not ; but the party 
 against whom he is called will not be allowed 
 to have recourse to both methods to prove the 
 witness's interest. If the witness answers he 
 has no interest, he is competent, his oath be- 
 ing conclusive ; if he swears he has an inte- 
 rest, he will be rejected. 
 
 Though this is the rule established beyond 
 the power of the courts to change, it seems 
 not very satisfactory. The witness is sworn 
 
 on his voir dire to ascertain whether he has 
 an interest which would disqualify him, be- 
 cause he would be tempted to perjure himself 
 if he testified when interested. But when he 
 is asked whether he has such an interest, if 
 he is dishonest and anxious to be sworn in the 
 case, he will swear falsely he has none, and, 
 his answer being conclusive, he will be ad- 
 mitted as competent ; if, on the contrary, he 
 swears truly he has an interest, when he 
 knows that will exclude him, he is told that 
 for being thus honest he must be rejected. 
 Seel Dall. 375; Interest. 
 
 VOLUNTARY. Willingly; done with 
 one's consent ; negligently. Wolff, § 5. 
 
 To render an act criminal or tortious, it 
 must be voluntary. If a man, therefore, kill 
 another without a will on his part while 
 engaged in the performance of a lawful act, 
 and having taken proper care to prevent it, 
 he is not |guilty of any crime. And if he 
 commit an injury to the person or property 
 of another, he is not liable for damages, un- 
 less the act has been voluntary or through 
 negligence ; as, when a collision takes place 
 between two ships without any fault in 
 either. 2 Dods. Adm. 83 ; 3 Hagg. Adm. 
 320, 414. 
 
 When the crime or injury happens in the 
 performance of an unlawful act, the party 
 will be considered as having acted volun- 
 tarily. 
 
 VOLUNTARY ASSIGNMENT. See 
 Voluntary Conveyance. 
 
 VOLUNTARY CONVEYANCE. A 
 conveyance without any valuable considera- 
 tion. 
 
 Voluntary conveyances are discussed most 
 frequently with reference to the statutes 13 
 Eliz. c. 5 (for the protection of creditors) and 
 27 Eliz. c. 4 .(for the protection of subse- 
 quent purchasers). A voluntary conveyance, 
 however, is not within these statutes unless 
 it is fraudulent ; Cowp. 434. And as between 
 the parties a voluntary conveyance is gener- 
 ally good. 
 
 In determining whether a voluntary con- 
 veyance is fraudulent and within the stat. 13 
 Eliz. c. 5, a distinction is made between ex- 
 isting (or previous) and subsequent creditors. 
 An existing creditor, so called, is one who is 
 a creditor at the time of the conveyance ; and 
 it was at one time held that, as against him, 
 every voluntary conveyance by the debtor is 
 fraudulent ; 8 Wheat. 229 ; without regard 
 to the amount of the debts, the extent of the 
 property in settlement, or the circumstances 
 of the debtor ; 3 Johns. Ch. 500 ; but this 
 rule is now subject to great modifications both 
 in England and in the United States ; see 1 
 Am. £. Cas. 3 7-40 ; and the conclusion to 
 be drawn from the more recent cases is that 
 the whole question depends in great measure 
 on the ratio of the debts, not so much to the 
 property the debtor parts with, as to that 
 which he retains ; 24 Penn. 51 1 ; 2 Beav. 
 344; 4 Drew. 632. A subsequent creditor is 
 
VOLUNTARY DEPOSIT 
 
 792 
 
 VOTER 
 
 one who becomes a oreditor after the convey- 
 ance ; and, as against him, avoluntary convey- 
 ance is not void unless actually fraudulent; 
 1 Am. L. Gas. 40 ; but there is great diver- 
 sity in the definition of the fraud of which 
 he may avail himself; see 3 De G. J. & S. 
 293; L. R. 5 Ch. Ap. 5J8; 3 Johns. Ch. 
 501 ; 39 Penn. 499 ; 9 W. N. C. (Pa.) 353. 
 
 Whenever a voluntary conveyance is made, 
 a presumption of fraud properly arises upon 
 the statute of 27 Eliz. c. 4, which presump- 
 tion may be repelled by showing that the 
 transaction on which the conveyance was 
 founded virtually contained some conven- 
 tional stipulations, some compromise of inte- 
 rests, or reciprocity of benefits, that point out 
 an object and motive beyond the indulgence 
 of affection or claims of kindred, and not re- 
 concilable with the supposition of intent to 
 deceive a purchaser. But, unless so repelled, 
 such a conveyance, coupled with a subsequent 
 negotiation for sale, is conclusive evidence of 
 statutory fraud. 
 
 The principles of these statutes, though they 
 may not have been substantially re-enacted, 
 prevail throughout the United States. Gene- 
 ral reference may be made to Hunt, Fraud. 
 Conv.; May, Stats, of Eliz.; Bump, Fraud. 
 Conv.; Note to Twyne's Case, 1 Sm. L. Cas. 
 (cases to 1879 discussed in 18 Am. L. Reg. 
 N. 8. 137); Note to Sexton vs. Wheaton, 1 
 Am. L.. Cas.; Story, Eq. Jurisp. §§ 350-' 
 436. 
 
 VOLTTNTARY DEPOSIT. In CivU 
 Law. A deposit which is made by the mere 
 consent or agreement of the parties. 1 Bou- 
 vier, Inst. n. 1054. 
 
 VOLUNTARY ESCAPE. The giving 
 to a prisoner voluntarily any liberty not 
 authorized bylaw. 5 Mass. 310; 2 Chipm. 
 11 ; 3 HaiT. & J. 559. See Escape. 
 
 VOLUNTARY JURISDICTION. In 
 Ecclesicistical Lavr. That kind of jurisdic- 
 tion which requires no judicial proceedings : 
 as, the granting letters of administration and 
 receiving the probate of wills. 
 
 VOLUNTARY NONSUIT. In Prac- 
 tice. The abandonment of his cause by a 
 plaintiff", and an agreement that a judgment 
 for costs be entered against him. 3 Bouvier, 
 Inst. n. 3306. 
 
 VOLUNTARY SALE. One made freely, 
 without constraint, by the owner of the thing 
 sold. 1 Bouvier, Inst. n. 974. 
 
 VOLUNTARY WASTE. That which 
 is either active or wilful : in contradistinction 
 to that which arises from mere negligence, 
 which is called ;9e)-mtssiue waste. 2 Bouvier, 
 Inst. 2394 et seq. See Waste. 
 
 VOLUNTEERS. Persons who receive 
 a voluntary conveyance. 
 
 It is a general rule of the courts of equity 
 that they will not assist a mere volunteer 
 who has a defective conveyance. Ponbl. 
 Eq. b. 1, c. 5, s. 2 ; and see the note there 
 for some exceptions to this rule. See, gene- 
 
 rally, 1 Madd. 271; 1 Supp. to Ves. Ch. 
 320; 2 id. 321; Powell, Mortg. 
 
 In Militaxy Lavr. Persons who, in time 
 of war, offer their services to their country 
 and march in its defence. 
 
 Their rights and duties are prescribed by 
 the municipal laws of the different states. 
 But when m actual service they are subject 
 to the laws of the United States and the arti- 
 cles of war. 
 
 One who freely enlists in the place of an- 
 other, and becomes his substitute of his own 
 free will and accord, is a volunteer within the 
 spirit and intent of the statutes ; 43 Barb. 
 239. 
 
 VOTE. Suffrage; the voice of an indi- 
 vidual in making a choice by many. The total 
 number of voices given at an election : as, 
 the presidential vote. 
 
 Votes are either given by ballot or viva 
 voce ; they may be delivered personally by the 
 voter himself, or in some cases, by proxy. A 
 majority of votes given carries the question 
 submitted, unless in particular cases when the 
 constitution or laws require that there shall be 
 a majority of all the voters, or when a greater 
 number than a simple majority is expressly 
 required : as, for example, in tbe case of the 
 senate, in making treaties by the president 
 and senate, two-thirds of the senators present 
 must concur. 
 
 When the votes are equal in number, the 
 proposed measure is lost. The presumption 
 of the legality of a vote in no way depends 
 upon the omission to challenge or object to it, 
 or any presumed knowledge of the judge of 
 election; but it arises from thefact of its hav- 
 ing been deposited in the ballot-box. When 
 once deposited, it will be presumed to be a 
 legal vote until the contrary is proved; 88 
 111. 498. See Election ; Ballot ; Suf- 
 frage ; Voter. 
 
 VOTER. One entitled to a vote ; an 
 elector. The qualifications of voters are simi- 
 lar in all the states, but not uniform. They 
 have been summarized as follows: 1. Citi- 
 zenship, either by birth or naturalization ; 2. 
 Residence for a given period of time in the 
 state, county, and voting precinct ; 3. Age, 
 the limit is twenty-one years in all the states; 
 4. The payment of taxes, in some states, and 
 in many states, registration ; 5. Freedom from 
 infamy, of having committed an infamous 
 crime ; 6. Freedom from idiocy or lunacy ; 
 McCrary, Elect. § 4. A person who is capa- 
 ble of transacting the ordinary business of life, 
 even though laboi-ing under some hallucina- 
 tion or delusion, unless it be shown to extend 
 to political matters, cannot be denied the 
 privilege of voting on the ground of want of 
 mental capacity ; 88 111. 499. The right to 
 fix the qualifications of voters is in the states, 
 except so far as it is limited by the 1 5th amend- 
 ment to the constitution of the United States, 
 which provides that the right of citizens to 
 vote shall not be denied or abridged by the 
 United States or any state, on account of race. 
 
VOUCHEE 
 
 7»3 
 
 WAGER 
 
 color, or previous condition of servitude. 
 See MeCrary, Elections ; Morse, Citizenship ; 
 Vote. 
 
 VOUCHEE. In common recoveries, the 
 person who is called to warrant or defend the 
 title is called the vouchee. 2 Bouvier, Inst, 
 n. 2093. 
 
 VOUCHER. In Accounts. An account- 
 book in which are entered tlie acquittances 
 or warrants for the accountant's discharge. 
 Any acquittance or receipt which is evidence 
 of payment or of the debtor's being dis- 
 charged. See 3 Halst. 299 ; 1 Mete. Mass. 
 218. 
 
 In Old Conveyancing. The person on 
 whom the tenant to the proecipe calls to defend 
 the title to the land, because he is supposed 
 to have warranted the title to him at the time 
 of the original purchase. 
 
 The person usually employed for this pur- 
 pose is the crier of the court, who is there- 
 fore called the common voucher. See Cruise, 
 big. tit. 36, c. 3, s. 1 ; 22 Viner, Abr. 26 ; 
 Recovery. 
 
 VOUCHER TO WARRANTT. The 
 calling one who has warranted lands, by the 
 party warranted, to come and defend the suit 
 for him. Co. Litt. 101 6. 
 
 VOYAGE. In Maritime Law. The 
 
 passage of a ship upon the seas from one port 
 to another, or to several ports. The term in- 
 cludes the enterprise entered upon and not 
 merely the route ; 113 Mass. 326. 
 
 Every voyage must have a terminus a quo 
 and a terminus ad quern. When the insur- 
 
 ance is for a limited time, the two extremes 
 of that time are the termini of the voyage 
 insured. When a ship is insured both out- 
 ward and homeward, for one entire premium, 
 this, with reference to the insurance, is con- 
 sidered but one voyage, and the terminus a 
 quo is also the iermiiius ad quern; Marsh. Ins. 
 b. 1, c. 7, s. 1-5. As to the commencement 
 and ending of the voyage, see Risk. 
 
 The voyage, with reference to the legality 
 of it, is sometimes confounded with the traffic 
 in which the ship is engaged, and is frequently 
 siiid to be illegal only because the trade is so ; 
 but a voyage may be lawful, and yet the 
 transport of certain goods on board the 
 ship may be proliibited ; or the voyage may 
 be illegal, though the transport of the goods 
 be lawful; Marsh. Ins. b. 1, o. 6, s. 1. See 
 Lex Merc. Amer. c. 10, s. 14 ; Park. Ins. c. 
 12; Weskett, Ins. Voyages; Deviation. 
 
 In the French law, the voyage de conserve 
 is the name given to designate an agi-eement 
 made between two or more sea-ciiptains that 
 they will not separate in their voyage, Avill 
 lend aid to each other, and will defend them- 
 selves against a common enemj' or the enemy 
 of one of them in case of attack. This agree- 
 ment is said to be a partnership ; 3 Pardessus, 
 Dr. Com. n. 656 ; 4 id. 984 ; 20 TouUier, n. 
 17. 
 
 VULGO CONCEPTI (Lat.). In Civil 
 Iia'or. Bastards whose lather was unknown. 
 Leg. 53, fl'. de statu hominum. Those, also, 
 whose fathers, though known, could not law- 
 fully be recognized as such : viz., the offspring 
 of incest and adultery. Code, Civ. 3. 7. 1. 
 
 w. 
 
 WADSET. In Scotch Law. The old 
 
 term for a mortgage. A right by which lands 
 or other heritable subjects are impignorated 
 by the proprietor to his creditor in security 
 of his debt. Like other heritable rights, it is 
 protected by seisin. 
 
 Wadsets are commonly made out in the 
 form of mutual contracts, in which one party 
 sells the land and the other grants the right of 
 reversion. Erskine, Inst. 2. 8. 1. 2. 
 
 Wadsets are proper, where the use of the 
 land shall go for the use of the money ; im- 
 proper, where the reversor agrees to make 
 up the deficiency ; and where it amounts to 
 more, the surplus profit of the land is applied 
 to the extinction of the principal. Erskine, 
 Inst. 2. 8. 12. 13. 
 
 •WADSETTER. In Scotch Law. A 
 creditor to whom a wadset is made, corre- 
 sponding to a mortgagee. See Rkvebsob. 
 
 WAGE. To give a pledge or security for | 
 
 the performance of any thing : as, to wage 
 or gage deliverance, to wage law, etc. Co. 
 Litt. 294. This word is but little used. 
 
 WAGER. A bet ; a contract by which 
 two parties or more agree that a certain sum 
 of money, or other thing, shall be paid or 
 delivered to one of them on the happening or 
 not happening of an uncertain event. 
 
 A contract upon a contingency by which 
 one may lose but cannot gam, or the other 
 can gain but cannot lose, is a wager ; 15 
 Gratt. 653 ; but it has been decided that to 
 constitute a wager there must be a risk by 
 both parties; 5 Humph. 561. In 1 Bosw. 
 207, it was said : " A wager is something 
 hazai-ded on the issue of some uncertain 
 event ; a bet is a wager, though a wager is 
 not necessarily a bet." As to difference be- 
 tween wager and contract of indemnity, see 
 89 Penn. 89. 
 
 At common law, wagers were not, per se. 
 
WAGER 
 
 794 
 
 WAGER 
 
 void ; 2 Term, 610 ; 37 Cal. 670 ; 3 McLean, 
 100 ; 25 Tex. 586. By an English statute 
 passed in 1845, wagers were prohibited, and 
 .similar st-.tutcs have been passed in many of 
 the states ; see Dos Passes, Stock Brokers, 
 409. 
 
 As to wagering contracts in the sale of 
 stocks, etc., the same writer lays down the fol- 
 lowing proposition as conceded in all the cases: 
 If the contract between the parties is a bona 
 fide contract to buy and sell, the law will sustain 
 it ; but where it appears from the evidence 
 that there is no real contract of sale, and that 
 the whole transaction is to be settled by the 
 payment of "differences," the contract will 
 be set aside ; id. 410. He also says : There 
 is a marked distinction between those cases 
 which have arisen between the direct parties 
 to the contract, as, for instance, a vendor and 
 vendee, and those in which a broker, acting 
 for a principal, has entered into agreements 
 with third persons on behalf of his principal 
 and then seeks indemnity from the latter for 
 money laid out, etc. and commissions in the 
 transactions. In the former class, if the in- 
 tention of the parties is not to deliver or re- 
 ceive property but to settle by the mere pay- 
 ment of differences, the contract is a wager. 
 But a broker may be ignorant of the unlawful 
 intentions of his principals, and mav then re- 
 cover for money paid out and commissions, 
 although the principals would be unable to 
 enforce the contracts as between themselves ; 
 id. 410. 
 
 Where a contract is a mere device to avoid 
 the statute, it is illegal, but the burden of 
 proving its illegality is upon the defendant ; 
 70 N. 1. 202 ; and the intention of the par- 
 ties is for the jury ; 20 E. L. & E. 290; 72 
 Penn. 155 ; but see 89 Penn. 250 ; and it 
 has been held that, to uphold a contract in 
 writing for the sale and delivery of grain at 
 a future day for a certain price, it must affir- 
 matively and satisfactorily appear that it was 
 made with an actual view to the recovery and 
 receipt of the grain, and not as a cover for a 
 gambling transaction ; 3 Wise. Leg. News, 
 338. 
 
 A purchase of grain at a certain price per 
 bushel, made in good faith, to be delivered in 
 the next month, giving the seller until the 
 last day of the month, at his option, in which 
 to deliver, is not a gambling contract ; the 
 purchaser would be entitled to its benefit, no 
 matter what may have been the secret inten- 
 tion of the seller; 79 111. 351. 
 
 A usage by which merchants usually settle 
 contracts for the sale of grain by ' ' differ- 
 ences" does not necessarily render such a 
 contract void ; per Gresham, D. J., in 12 Ch. 
 L. News, 241. 
 
 Contracts for the sale of property to be de- 
 livered at a future time at the plaintiff"' s op- 
 tion, when it was not the intention of the 
 parties that the property should be delivered 
 either by consignment or the delivery of ware- 
 house receipts, but that the contracts should 
 be settled by the payment of differences, are 
 
 void ; per Love, D. J., in 11 Fed. Rep. 198 ; 
 but it IS said that the mere fact that an option 
 is reserved does not vitiate. There are many 
 circumstances under which an option is the 
 only way in which can be consumated trans- 
 actions beneficial to both sides. If all options 
 were prohibited, all conditional contracts 
 would have to be prohibited ; see Dr. Whar- 
 ton's note to case last cited ; also 70 N. Y. 
 202. 
 
 When one loses a wager and gets another 
 to pay the money for him, an action lies for 
 the recovery of the money; 15 C. B. n. 
 s. 316 ; see 4 Q. B. 75 ; but see 97 Penn, 
 202, 298. So it is said that where an agent 
 advances money to his principal to pay losses 
 incurred in an illegal transaction, the contract 
 between them, made after the illegal contract 
 is closed, is binding ; 2 Woods, 554 : see 98 
 Mass. 161. Where a broker sued his princi- 
 pal for advances and commissions on the pur- 
 chase of property, it was held that the fact 
 that persons from whom the broker bought 
 the property foi* his principal had not the 
 goods on hand when the contract was made, 
 and that they had no reasonable expectation 
 of acquiring them except by purchase, did not 
 defeat the broker's right to recover; 14 Bush, 
 727 ; see, also, 5 M. & W. 462. 
 
 Optional contracts, where the seller has the 
 privilege of delivering or not delivering, and 
 the buyer of calling or not calling for, the 
 grain, just as they choose, and which on the 
 maturity of the contracts were to be settled 
 by differences, are illegal ; 79 111. 328. 
 
 The writer above quoted (Dos Passos, 
 Stock Brokers, 477) gives the general result 
 of the eases : — 
 
 1. Where a contract is made for the deliv- 
 ery or acceptance of securities at a future day 
 at a price named, and neither party, at the 
 time of the making of the contract, intends 
 to deliver or accept the shares, but merely to 
 pay diffierences according to the rise or fall of 
 the market, the contract is void either by vir-' 
 tue of statute or as contrary to public policy.: 
 
 2. In each transaction the law looks pri- 
 marily at the intention of the parties, which 
 intention is a matter of fact for the jury to 
 determine. 
 
 3. The form of the transaction is not con- 
 clusive, and oral evidence may be given of 
 the surrounding circumstances and condition 
 of the parties to show their intention ; a con- 
 tract purporting on its face to be'a contract 
 of sale is a mere gambling device, although 
 the contract is in writing under seal. 
 
 4. Option contracts, viz. "puts," "calls," 
 and "straddles," are not prima facie gam- 
 bling contracts. 
 
 5. To make a contract a gambling trans- 
 action, both parties must concur in the illegal 
 intent. 
 
 6. The defence of wager must be aflSrma- 
 tively pleaded, and the burden of proof is 
 upon the party asserting the same. 
 
 7. A broker who makes real contracts with 
 third persons in behalf of his client with the 
 
WAGER 
 
 795 
 
 WAGER OF BATTEL 
 
 understanding between the client and broker 
 that the former shall never be called upon to 
 pay or receive more than differences, can re- 
 cover the amount paid out for his client in the 
 transactions, together vfith his commissions. 
 See Biddle, Stock Brokers ; Lewis, Stocks ; 
 article by Dr. Wharton in 3 Cr. L. Mag. 
 1, on Political Economy and Criminal Law. 
 
 Wagers on the event of an election laid 
 before the poll is open ; 1 Term, 56 ; 4 
 Johns. 426 ; 4 H. & McH. 284 ; or after it 
 is closed ; 8 Johns. 147, 454 ; 2 Browne, Pa. 
 182; are unlawful. See 117 Mass. 558; 
 McCreary Elect. § 149. And wagers are 
 against public policy if they are in restraint 
 of marriage ; 10 East, 22 ; if made as to the 
 mode of playing an illegal game ; 2 H. 
 Blackst. 43 ; 1 N. & M'C. 180 ; 7 Taunt. 
 246 ; or on an abstract speculative question 
 of law or judicial practice, not arising out of 
 circumstances in which the parties have a 
 real interest ; 12 East, 247, and Day's notes. 
 But see 1 Cowp. 37. 
 
 Wagers as to the sex of an individual ; 
 Cowp. 729; or whether an unmarried woman 
 had borne or would have a child ; 4 Camp. 
 152 ; are illegal, as necessarily leading to 
 painful and indecent considerations. The 
 supreme court of Pennsylvania have laid it 
 down as a rule that every bet about the age, 
 or height, or weight, or wealth, or circum- 
 stances, or situation of any person, is illegal ; 
 and this, whether the subject of the bet be 
 man, woman, or child, married or single, na- 
 tive or foreigner, in this country or abroad ; 1 
 Rawle, 42. And it seems that a wager be- 
 tween two coach-proprietors, whether or not 
 a particular person would go by one of their 
 coaches, is illegal, as exposing that person to 
 inconvenience ; 1 B. & Aid. 683. 
 
 There has been some diversity of opinion 
 as to what should be considered a wager on 
 a horse race. Simple bets upon a race are 
 unlawful both in England and this country 
 In England contributions towards any plate, 
 prize, or sum of money to be awarded to 
 the winner are not regarded in that light ; 
 Oliph. 391. And this view has been taken 
 in several decisions in this country. In 81 
 ST. Y. 532, in an action by a jockey for his 
 wages for driving in races, the court held 
 ^that the contract of employment was not in 
 violation of the statute against betting 
 on horse races ; nor was money paid for the 
 entrance of horses in a race. So in 63 Ind, 
 58, a premium offered by a trotting associa- 
 tion for the "best and quickest time," was 
 held clearly distinguishable from a wager. So 
 in Wisconsin ; 25 Alb. L. J. 405. But ii 
 Pennsylvania, a check given to an agricul 
 tural society, to enable the drawer to enter 
 his horse in a "trial of speed," was held 
 void, and putting up a purse to be trotted 
 for was held to be gambling, under the laws 
 of that state; 94 Pdnn. 132; to the same 
 effect, 24 Mich. 441. 
 
 In the case even of a legal wager, the 
 authority of a stakeholder, like that of an 
 
 arbitrator, may be rescinded by either party 
 before the event happens. And if, after his 
 authority has been countermanded and the 
 stake has been demanded, he refuse to deliver 
 it, trover or assumpsit for money had and 
 received is maintainable ; 1 B. & Aid. 683. 
 And where the wager is in its nature illegal, 
 the stake may be recovered, even after the 
 event, on demand made before it has been 
 paid over; 4 Taunt. 474. But see 12 Johns. 
 1. See, further, on this subject, 7 Johns. 
 434 ; 10 id. 406, 468 ; 11 id. 23 ; 12 id. 376 ; 
 13 id. 88; 15 id. 5; 17 id. 192; Stake- 
 holder. 
 
 WAGER OP BATTEL. A superstitious 
 mode of trial, at one time common through- 
 out Christendom, introduced into England by 
 William the Conqueror. 
 
 It was resorted to in three cases only : in the 
 court martial or court of chivalry ; in appeals 
 of felony and upon approvements ; and, upon 
 issue joined in a writ of right. On appeals 
 parties fought in their own proper persons, on 
 a writ of right by their champions. But if the 
 appellant or approver were a woman, a priest, 
 an infant, or of the age of sixty, or lame or 
 blind, or a peer of the realm, or a citizen of 
 London ; or if the crime were notorious ; in such 
 cases wager of battel might be declined by the 
 appellant or approver. But where the wager of 
 battel was allowed, the appellee pleaded not 
 guilty, and threw down his glove, declaring he 
 would defend the same with his body. The ap- 
 pellant took up the glove, replying that he 
 was ready to make good his appeal, body for 
 body. Thereupon the appellee, taking the Bible 
 in his right hand, and in his left the right hand 
 of his antagonist, swore to this effect : " Hear 
 this, O man, whom I hold by the hand, who 
 callest thyself John by the name of baptism, 
 that I, who call myself Thomas by the name of 
 baptism, did not feloniously murder thy father, 
 William by name, nor am anywise guilty of the 
 said felony ; so help me God and the saints ; and 
 this I will defend against thee by my body, as 
 this court shall award." The appellant replied 
 with a like oath, declaring also that the appellee 
 had perjured himself. Then followed oaths by 
 both parties against amulets and sorcery as fol- 
 lows : " Hear this, ye justices, that I have this 
 day neither eat, drank, nor have upon me 
 neither bones, stones, nor grass, nor any en- 
 chantment, sorcery, or witchcraft, whereby the 
 law of God may be abased, or the law of the 
 devil exalted ; so help me God and his saints." 
 The battle was then begun ; and if the ap- 
 pellee were so far vanquished as not to be 
 able or willing to fight any longer, he was ad- 
 judged to be hanged immediately ; but if he 
 kUled the appellant, or could maintain the flght 
 from sunrising till the stars appeared in the 
 evening, he was acquitted. Also if the appel- 
 lant became recreant, and pronounced the word 
 craven^ he lost his l^eram legem, and became in- 
 famous, see Cbaven, and the appellee recovered 
 his damages, and was forever quit of any fur- 
 ther proceedings for the same offence. The pro- 
 ceedings in wager of battel in a writ of right 
 were similar to the above except that the battle 
 was by champions. It was the only mode of de- 
 termining a writ of right until Henry II. Intro- 
 duced the grand assize, q. v. The prevalence of 
 judicial combats in the Middle Ages is attributed 
 by Mr. Hallam to systematic perj ury in witnesses, 
 and want of legal discrimination on the parts of 
 judges. Moz. asW. 
 
WAGER OF LAW 
 
 796 
 
 WAIVER 
 
 The last case of this kind was commenced 
 in the year 1817, but not proceeded in to 
 judgment; and at the next session of the 
 British parliament an act was passed to abol- 
 ish appeals of murder, treason, felony, or 
 other offences, and wager of battel, or joining 
 issue or trial by battel, in writs of right. 69 
 Geo. III. c. 46. For the history of this 
 species of trial see 3 Bla. Com. 337 ; 4 id. 
 347 ; Encyclop6die, Gage de Bataille ; Steph. 
 PL 122, and App. note 35. 
 
 'WAGER OF LAW. In Old Practice. 
 An oath taken by a defendant in an action 
 of debt that he does not owe the claim, sup- 
 ported by the oaths of eleven neighbors. 
 
 When an action of debt is brought against a 
 man upon a simple contract, and the defendant 
 pleads nit debet, and concludes bis plea with tliis 
 plea, with this formula, "And this he is ready 
 to defend against him the said A B and his suit, 
 as the court of x)ur lord the king here shall con- 
 sider," etc., he is then put in sureties (vadios) to 
 wage his law on a day appointed by the judge. 
 The wager of law consists in an oath taken by the 
 defendant on the appointed day, and confirmed 
 by the oaths of eleven neighbors or compurga- 
 tors. This oath had the effect of a verdict in 
 favor of the defendant, and was only allowed in 
 the actions of debt on simple contract, and de- 
 tinue ; nor was it allowed to any one not of 
 good character. In consequence of this privi- 
 lege of the defendant, asmmpsit displaces debt 
 as a form of action on simple contracts, and in- 
 stead of detinue, trover was used. But in Eng- 
 land wager of law was abolished by 3 & 4 Will. 
 IV. c. 42, § 13. And even before its abolition It 
 had fallen Into disuse. It was last used as a 
 method of defence in 3 B. & C. 538, where the 
 defendant offered to wage his law, but the plain- 
 tiff abandoned the case. This was in 1824. If 
 it ever had any existence in the United States, 
 it is now completely abolished ; 8 Wheat. 643. 
 
 The name (in law Latin, vadiatio legis) comes 
 from the defendant's being put in pledges 
 (vadios) to make his oath on the appointed day. 
 There was a similar oath in the Roman law, and 
 in the laws of most of the nations that con- 
 quered Rome. It was very early in use in Eng- 
 land, as Glanville distinctly describes it. Glan- 
 ville, lib. 1, c. 9, 12. See Steph. PI. 124, 250, 
 and notes xxxix.; Co. 3d Inst. 119 ; Mod. Entr. 
 179; Lilly, Entr. 467; 3 Chitty, PI. '497; 13 
 Viner, Abr. 58 ; Bacon, Abr.; Dane, Abr. Index. 
 For the origin of this form of trial, see Steph. 
 Plead, notes xxxlx.; Co. Litt. 394, 395 ; 3 Bla. 
 Com. 341. 
 
 WAGER POLICY. One made when 
 the insured has no insurable interest. 
 
 It has nothing in common with insurance 
 but the name and form. It is usually in 
 such terms as to preclude the necessity of in- 
 quiring into the interest of the insured : as, 
 " interest or no interest," or, " without fur- 
 ther proof of interest than the policy." 
 
 Such contracts, being against the policy of 
 the law, are void ; 1 Marsh. Ins. 121. See 
 1 Sumn. 451 ; 2 Mass. 1 ; 3 Caines, 141. See 
 Insurable Interest. 
 
 WAGES. A compensation given to a 
 hired person for his or her services. As to 
 servants' wages, see Chitty, Contr. 171 ; as to 
 sailors' wagers, Abbott, Shipp. 473. See 
 Master. 
 
 WAIFS. Stolen goods waived or scat^ 
 tered by a thief in his flight in order to effect 
 his escape. 
 
 Such goods, by the English common law, 
 belong to the king; 1 Bla. Com. 296 ; 5 Co. 
 109 ; Cro. Eliz. 694. This prerogative has 
 never been adopted here against the true 
 owner, and never put in practice against the 
 finder, though against him there would be 
 better reason for adopting it ; 2 Kent, 292. 
 See Comyns, Dig. Waif; 1 Bro. Civ. Law, 
 239, n. 
 
 WAINAGITTM (Sax. woeg, Lat. vagina). 
 What is necessary to the farmer for the cul- 
 tivation of his land. Barrington, Stat. 12; 
 Magna Charta, c. 14. According to Selden 
 and Lord Bacon, it is not the same as con- 
 tenementum, used in the same chapter of 
 Magna Charta, meaning the power of enter- 
 taining guests, or countenance, as common 
 people say. 
 
 WAITING CLERKS IN CHAN- 
 CERY. It was the duty of these officers to 
 wait in attendance on the court of chancery. 
 The office was abolished in 1842. 
 
 ■WAIVE. A term applied to a woman as 
 outlaw is applied to a man. A man is an 
 outlaw ; a woman is a waive. Crabb, Tech. 
 Diet. 
 
 To abandon or forsake a right. 
 
 To abandon without right: as, "if the 
 felon waives, — that is, leaves any goods in 
 his flight from those who either pursue him, 
 or are apprehended by him so to do, — he for- 
 feits them, whether they be his own goods, 
 or goods stolen by him." Bacon, Abr. For- 
 feiture (B). 
 
 ■WAIVER. The relinquishment or re- 
 fusal to accept of a right. 
 
 In practice, it is required of every one ta 
 take advantage of his nghts at a proper time ; 
 and neglecting to do so will be considered as 
 a waiver. If, for example, a defendant who 
 has been misnamed in the vrrit and declara- 
 tion pleads over, he cannot afterwards take 
 advantage of the error by pleading in abate- 
 ment ; for his plea amounts to a waiver. 
 
 In seeking for a remedy, the party injured 
 may, in some instances, waive a part of his 
 right and sue for another : for example, when 
 the defendant has committed a trespass on the 
 property of the plaintiff by taking it away, 
 and afterwards he sells it, the injured party 
 may waive the trespass and bring an action of 
 assumpsit for the recovery of the money thus 
 received by the defendant ; 1 Chitty, PI. 90. 
 
 In contracts, if, after knowledge of a sup- 
 posed fraud, surprise, or mistake, a party 
 performs the agreement in part, he will be 
 considered as having waived the objection ; 1 
 Bro. P. C. 289. 
 
 When a constitutional provision is designed 
 for the protection solely of the property rights 
 of the citizen, it is competent for him to 
 waive the protection, and to consent to such 
 action as would be invalid if taken against 
 his will: Cooley, Const. Lim. 219. See S 
 
WAKENING 
 
 797 
 
 WAR 
 
 N. Y. 511 ; G Hill, 147. In criminal cases 
 this doctrine must be true only to a very lim- 
 ited extent ; Cooley, Const. Lim. 220. In 
 capital oases the accused stands upon his 
 rights and waives nothing; 47 111. 325; J 
 Neh. 385. The weight of authority on this 
 subject is with the doctrine that in prosecu- 
 tions for crime, atleast when the crimecharged 
 is other than mere misdemeanor, the defend- 
 ant cannot waive his right to trial by a jury of 
 twelve men ; 1 Cr. L. Mag. 64 ; see, also, 
 48 Cal. 257; 16 Ind. 496; 41 Mo. 470; 18 
 N. Y. 128 ; but see 1 Cr. L. Mag. 57 (S. 0. 
 of Iowa). 
 
 It is a rule of the civil law, consonant with 
 reason, that any one may renounce or waive 
 that which has been established in his favor. 
 Regula est juris antiqui omnes liceniiam ha- 
 bere his quae pro se introducta sunt, renunci- 
 we. Code, 2. 3. 29. As to what will amount 
 to a waiver of a forfeiture, see 1 Conn. 79 ; 
 
 7 id. 45 ; 1 Johns. Cas. 125 ; 14 Wend. 419 ; 
 
 8 Pick. 292 ; 2 N. H. 120, 163 ; 1 Ohio, 21 ; 
 Condition. 
 
 WAKENING. In Scotch Law. The 
 revival of an action. 
 
 An action is said to sleep when it lies over, 
 not insisted on for a year, in which case it is 
 ■suspended. Erskine, Inst. 4. 1. 33. With 
 us a revival is by scire facias. 
 
 WAND OF PEACE. In Scotch Law. 
 The wand which the messenger carries along 
 with his blazon, in executing a caption, and 
 with which he touches the prisoner. A 
 sliding along this staff of a movable ring, or 
 the breaking of the staff, is a protest that the 
 ■officer has been resisted or deforced. Bur- 
 ton, Law of Scotl. 572 ; Bell, Diet. Impri- 
 sonment. 
 
 WANTON AND FTIRIOTTS DRIV- 
 ING-. An offence against public health, 
 which, under the stat. 24 & 25 Vict. c. 100, 
 s. 56, is punishable as a misdemeanor by fine 
 •or imprisonment. In this country, the offence 
 is usually provided for by state, county, or 
 municipal legislation. 
 
 WANTONNESS. A licentious act by 
 one man towards the person of another, with- 
 out regard to his rights : as, for example, if 
 a man should attempt to pull off another's hat 
 against his will, in order to expose him to 
 ridicule, the offence would be an assault, and 
 if he touched him it would amount to a bat- 
 tery. 
 
 In such case there would be no malice, but 
 the wantonness of the act would render the 
 offending party liable to punishment. 
 
 WAPENTAKE (from Sax. wapen, i. e. 
 armatura, and tac, i. e. tactus). A Saxon 
 court, held monthly by the alderman for the 
 lienefit of the hundred. 
 
 It was called a wapentake from wapen, arms, 
 and tac, to touch ; because when the chief of the 
 hundred entered upon hie office he appeared in 
 the field on a certain day, on horseback, with a 
 pike in his hand, and all the principal m^n met 
 him with lances. Upon this he alighted, and 
 
 they all touched his pike with their lances, in 
 token of their submission to his authority. In 
 this court causes of great moment were heard 
 and determined, as IVir. Dugdale has shown from 
 several records. Besides which it took cogniz- 
 ance of theft, trials by ordeal, view of frank- 
 i pledge, and the like ; whence after the conquest 
 it was called the sheriff's tourn, and, as regarded 
 the examination of the pledges, the court of the 
 view of frankpledge. These pledges were no 
 other than the freemen within the liberty, who, 
 according to an institution of king Alfred, were 
 mutually pledged for the good behavior of each 
 other. Fortescue, de Laud. c. 24 ; Dugdale, 
 Orig. Jur. 37 ; 4 Bla. Com. 378. Sir Thomas 
 Smith derives it from the custom of taking 
 away the arms at the muster of each hundred, 
 from those who could not find sureties for good 
 behavior. Rep. Angl. lib. 3, c. 16. 
 
 WAR. An armed contest between na- 
 tions. Grotius, de Jur. Bell, 1. 1, c. 1. The 
 state of nations among whom there is an in- 
 terruption of all pacific relations, and a gene- 
 ral contention by force, authorized by the 
 sovereign. Mann. Comm. 98 ; 1 Kent, *61, n. 
 (h.). A civil war is one confined to a single 
 nation. It is public on the part of the es- 
 tablished government, and private on the part 
 of the people resisting its authority, but both 
 the parties are entitled to all the rights of war 
 as against each other, and even as respects 
 neutral nations ; Wheat. Int. L. § 296. 
 
 The right of making war belongs in every 
 civilized nation to the supreme power of the 
 state. The exercise of this right is regulated 
 by the fundamental laws in each country, and 
 may be delegated to its inferior authorities in 
 remote possessions, or even to a commercial 
 corporation. A contest by force between inde- 
 pendent sovereign states is called a public 
 war. If it is declared in form, or duly com- 
 menced, it entitles both the belligerent par- 
 ties to all the rights of war against each other. 
 In this respect there is no distinction between 
 a just and an unjust war. . A formal declara- 
 tion of war to the enemy was once considered 
 necessary to legalize hostilities between na- 
 tions, and was uniformly practised until about 
 the middle of the 1 7th century, but the pre- 
 sent usage is to publish a manifesto within 
 the territory of the state declaring war, an- 
 noiincing the existence of hostilities and the 
 motives for commencing them. A civil war 
 is never declared ; Boyd's Wheat. Int, L. 
 § 294 et seq. 
 
 The war between Great Britain and the 
 United States was a civil war until the de- 
 claration of independence, when it became a 
 public war between independent govern- 
 ments; 3 Dall. 199, 224. So the late war 
 of secession in this country was a civil war 
 after the president's proclamation of August 
 16, 1861. See 37 Ga. 482 ; 23 Am. L. Reg. 
 129 ; Secession. The general doctrines 
 applicable to the subjects of belligerent na- 
 tions have been held by the supreme court of 
 the United States to be applicable to the 
 hostile parties in that war ; 2 Black, 635. 
 • The constitution of the United States (art. 
 1, sec. 8) provides that congress shall have 
 
WAR OFFICE 
 
 798 
 
 WARDSHIP 
 
 power to declare war. See 2 Wall. 404 ; 11 
 id. 268, 331. 
 
 As to war claims against the United States, 
 see 29 Am. L. Reg. 26. 
 
 The effect of the late war upon contracts of 
 life insurance has been much discussed. The 
 supreme court has held, though^ in a divided 
 opinion, that "a policy of life insurance for- 
 feitable on non-payment of any annual pre- 
 mium, is not an insurance from year to year, 
 like a common fire policy, but that the pre- 
 miums constitute an annuity, the whole of 
 which is the consideration for the entire in- 
 surance for life, and the condition is a con- 
 dition subsequent making void the policy by 
 its non-performance; that the time of pay- 
 ment in such policies is of the essence of the 
 contract, failure wherein involves a forfeiture 
 which equity cannot relieve against ; and 
 that if war intervenes, and makes intercourse 
 between the parties unlawful, the policy is 
 nevertheless forfeited if the insurers insist 
 upon it, in which case, however, the insured 
 is entitled to recover the difference between 
 the cost of a new policy and the present value 
 of the premiums yet to be paid on the old 
 policy at the time the forfeiture occurred, — 
 being the equitable value of the policy aris- 
 ing out of the premiums actually paid ; and 
 that it would be inequitable to compel a re- 
 vival of the policies subverted by the war, as 
 none but the sick or wounded would probably 
 elect to have them revived ;" 93 U. S. 24. To 
 the same effect was 41 Conn. 372. But a 
 different view has been taken by the state 
 courts generally and by the inferior courts of 
 the United States, holding that, as the inter- 
 vention of war cuts off all intercourse be- 
 tween the contracting parties, a failure to 
 pay under such circumstances does not avoid 
 the policy; 59 Barb. 557 ; 50 N. Y. 626 ; 7 
 Bush, 179; 20 Gratt. 614; 9 Blatch. -234; 
 13 Wall. 158; Maj-, Ins. § 350. The opi- 
 nion above cited in 93 U. S. 24, has been 
 severely criticized, and the question cannot 
 be considered as finally settled. See 23 Am. 
 L. Reg. 129 ; 25 id. 651 ; 11 Am. L. Rev. 
 221; 19 Am. Rep. 495, 512; 22 Gratt. 628 ; 
 9 Blatch. 234 ; 2 Ins. L. J. 863. 
 
 See Blockade ; Confedekate States ; 
 Contraband or War ; International 
 Law ; Privateer ; Secession ; Treaty; 
 Truce ; United States op America. 
 
 WAR OFFICE. In England. A de- 
 partment of state from which the sovereign 
 issues orders to his forces. Whart. Lex. 
 
 WARD. An infant placed by authority 
 of law under the care of a guardian. 
 
 While under the care of a guardian, a ward 
 can make no contract whatever binding upon 
 him, except for necessaries. When the relation 
 of guardian and ward ceases, the latter is en- 
 titled to have an account of the administration 
 of his estate from the former. During the exis- 
 tence of this relation the ward is under the sub- 
 jection of his guardian, who stands in loco 
 parentis. See Guardian. 
 
 The English Judicature Act of 1873 as- 
 
 signs the wardship of infants and the care of 
 infants' estates to the chancery division of the 
 high court of justice. Whart. Lex. 
 
 A subdivision of a city to watch in the day- 
 time, for the purpose of preventing viola- 
 tions of the law. It is the duty of all police 
 oflScers and constables to keep ward in their 
 respective districts. 
 
 WARD IN CHANCER7. An infant 
 who is under the superintendence of the 
 chancellor. See Ward. 
 
 WARD-HOLDING-. In Old Scotch 
 Law. Military tenure by which lands were 
 held. It was so called from the yearly tax 
 in commutation of the right to hold vassals' 
 lands during minority. It was abolished in 
 1747. Burton, Law of Scotl. p. 375 ; Bell, 
 Diet. 
 
 WARDEN. A guardian; a keeper. This 
 is the name given to various officers : as, the 
 warden of the prison, the wardens of the port 
 of Philadelphia, church-wardens. As to the 
 latter, see Baum. 
 
 WARDEN OP THE CINQUE PORTS. 
 Governor of the ports of England lying next 
 Prance, with the authority of admiral, and 
 power of sending out writs in his own name, 
 etc. The constable of Dover Castle is the 
 warden of the Cinque Ports, and was first 
 appointed by William the Conqueror; but 
 John I. granted to the wardens their privi- 
 leges on condition that they should provide 
 a certain number of vessels for forty days, as 
 often as the king should require them. See 
 Cinque Ports. 
 
 WARDMOTE (from ward, and Sax. 
 mote, or gemote, a meeting). 
 
 In English Law. A court held in every 
 ward in London. 
 
 The wardmote inquest has power to inquire 
 into and present all defaults concerning the 
 watch and police doing their duty, that en- 
 gines,, etc., are provided against fire, that 
 persons selling ale and beer be honest and 
 suffer no disorders, nor permit gaming, etc., 
 that they sell in lawful measures, and 
 searches are to be made for beggars, va- 
 grants, and idle persons, etc., who shall be 
 punished. Chart. Hen. ■ II. ; Lex Lond. 
 185 ; Cunningham, Law Diet. ; Wharton, 
 Law Diet. 2d Lond. ed. Wardmote. See 
 Cowel ; Co. 4th Inst. 249 ; 2 Show. 525. 
 
 WARDSHIP. In English Law. The 
 right of the lord over the person and estate 
 of the tenant, when the latter was under a 
 certain age. 
 
 When a tenant hy knight's service died, and 
 his heir was under age, the lord was entitled to 
 the custody of the person and the lands of the 
 heir, without any account, until the ward, if a 
 male, should arrive at the age of twenty-one 
 years, and, if a female, at eighteen. Wardship 
 was also incident to a tenure in socage ; but in 
 this case not the lord, but the nearest relation to 
 whom the Inheritance could not descend, was 
 entitled to the custody of the person and estate 
 of the heir till he attained the age of fourteeu 
 years ; at which period the wardship ceased, aud 
 
WAREHOUSE 
 
 799 
 
 WARRANT 
 
 the guardian was bound to account. Wardship 
 In copyhold estates partook of that In chivalry' 
 and that in socage. Like the former, the lord 
 was the guardian ; like the latter, he was re- 
 quired to account. 2 Bla. Com. 87, 87, 97 ; 
 Glanville, lib. 7, c. 9 ; Grand Cout. c. 33 ; Reg. 
 Maj. c. 42. 
 
 WARBHOXTSB. A place adapted to the 
 reception and storage of goods arid merchan- 
 dise. 23 Me. 47. 
 
 A radical change was made in the revenue 
 laws of the United States by the establishment, 
 under the act of congress of Aug. 6, 1846, Stat, 
 at L. 53, of the warehotising system. This stat- 
 ute is commonly called the Warehousing Act. 
 Its evident object is to facilitate and encourage 
 commerce by exempting the Importer from the 
 payment of duties until he is ready to bring his 
 goods into market ; 13 How. 295. Previous to 
 the passage of that act, no goods chargeable 
 with cash duties could be landed at the port of 
 delivery until the duties were paid at the port of 
 entry. The Importer had no right to land them 
 anywhere until they had passed through the 
 custom-house. Before that act, the only provi- 
 sions existing in relation to the warehousing of 
 goods were merely applicable to special cases, 
 such as where the vessel in which the goods were 
 imported was subject to quarantine regulations, 
 or where the entry might have been incomplete, 
 or the goods had received damage, or where a 
 landing was compelled at a port other than the 
 one to which the vessel was destined, on account 
 of distress of weather or other necessity, or in 
 case of the importation of wines or. distilled 
 spirits. Andrews, Rev. Laws, 72. 
 
 The warehousing system was extended by the 
 establishment of private bonded warehouses. 
 Act of Mar. 28, 1854, 10 Stat, at L. 270 ; R. S. 
 §§ 2964, 2965. 
 
 Where warehouses are situated In a state, and 
 their business carried on therein exclusively, a 
 state statute prescribing regulations for their 
 governance is not unconstitutional, it being a 
 matter of purely domestic concern, and even 
 where their business affects inter-state as well 
 as state commerce, such a statute can be enforced 
 until congress acts in reference to their inter-state 
 relations; 94 U. S. 113; s. o. 69 111. 80. See 
 Police Powee ; Warehouseman. 
 
 WARBHOUSEMAN. A person who 
 receives goods and merchandise to be stored 
 in his warehouse for hire. 
 
 He is bound to use ordinary care in pre- 
 serving such goods and merchandise, and his 
 neglect to do so -will render him liable to the 
 owner; 1 Esp. 315; Story, Bailm. § 444; 
 Jones, Bailm. 49, 96; 7 Cow. 497; 12 
 Johns. 232; 2 Wend. 593; 9 id. 288; 2 
 Ala. 284. The warehouseman's liability com- 
 mences as soon as the goods arrive and the 
 crane of the warehouse is applied to raise 
 them into the warehouse ; 4 Esp. 262. 
 
 Warehousemen have a lien on property left 
 in their custody, for their hire, labor, and ser- 
 vices ; 1 Esp. 109 ; 3 id. 81 ; 7 W. & S. 466 ; 
 though in some cases this lien has been looked 
 upon only as specific, and not general; 13 
 Ark. 446 ; see Story, Bailm. 452-3 ; 3 Kent, 
 SS 635-641 ; 14 Am. L. Keg. N. s. 465. 
 Wharfinger. 
 
 Warehouse Receipts.— Receipts given by a 
 warehouseman for chattels placed in his pos- 
 
 session for storage purposes. 40 111. 320. 
 They are not in a technical sense negotiable 
 instruments, but have been made so in many 
 of the states by special statute ; 2 Ames, 
 Bills & Notes, 782. It has been held, that, 
 even where no statute has been enacted on 
 this subject, inasmuch as these instruments 
 have come to be considered the repre- 
 sentatives of property, and an assignment is 
 equivalent to the delivery of property, the 
 warehouseman is estopped, as against an as- 
 signee for value without notice, to set up facts 
 or agreements contradictory to their terms ; 
 14 Cent. L. J. 432 (S. C. of Tenn.). In or- 
 der that receipts should be construed as ware- 
 house receipts the special statutes on the sub- 
 ject must be strictly complied with ; 9 Biss. 
 396 ; 101 U. S. 557. The holder of such 
 receipts takes the same title to the goods as 
 if the goods themselves had been delivered to 
 him ; 19 Am. L. Reg. N. s. 303 (Ky.). See 
 43 Wise. 267 ; Bills of Lading. 
 
 WARRANDICE. In Scotch Law. A 
 clause in a charter of heritable rights, by 
 which the grantor obliges himself that the 
 right conveyed shall be effectual to the re- 
 ceiver. It is either personal or real. A war- 
 ranty. Erskine, Inst. 2. 3. 11. 
 
 WARRANT. A writ issued by a justice 
 of the peace or other authorized officer, di- 
 rected to a constable or other proper person, 
 requiring him to arrest a person therein 
 named, charged with committing some of- 
 fence, and to bring him before that or some 
 other justice of the peace. 
 
 A bench-warrant is a process granted by a 
 court, authorizing a proper officer to appre- 
 hend and bring before it some one charged 
 with some contempt, crime, or misdemeanor. 
 See Bench- Warrant. 
 
 A search-warrant is a process issued by a 
 competent court or officer authorizing an of- 
 ficer therein named or described to examine a 
 house or other place for the purpose of find- 
 ing goods which it is alleged have been stolen. 
 See Search- Warrant. 
 
 A warrant should regularly bear the hand 
 and seal of the justice, and be dated. It 
 should contain a command to the officer to 
 make a return thereof and of his doings 
 thereon. But the want of such a command 
 does not excuse him from the obligation of 
 making a proper return ; 3 Cush. 438. And , 
 it is no ground for discharging a defendant 
 that the warrant does not contain such a com- 
 mand; 2 Gray, 74. No warrant ought to be 
 issued except upon the oath or aflirmation of 
 a witness charging the defendant with the 
 ofience ; 3 Binn. 88. 
 
 The reprehensible practice of issuing blank 
 warrants, which once prevailed in England, 
 was never adopted here. 2 Russ. Cr. 512; 
 Ld. Raym. 546 ; 1 Salk. 175 ; 1 H. Blackst. 
 13; Doctr. PI. 529; Wood, Inst. 84; 
 Comyns, Dig. Forcible Entry (D 18, 19), 
 Imprisonment (H 6), Pleader (3 K 26), (3 
 M 23). See Search- Warrant. 
 
WARRANT OF ATTORNEY 
 
 800 
 
 WARRANTY 
 
 WARRANT OF ATTORNEY. In 
 
 Practice. An instrument in writing, ad- 
 dressed to one or more attorneys therein 
 named, authorizing them, generally, to appear 
 in any court, or in some specified court, on 
 behali' of the person giving it, and to confess 
 judgment in favor of some particular person 
 therein named, in an action of debt, and usu- 
 ally containing a stipulation not to bring any 
 writ of error, or file a bill in equity, so as to 
 delay him. 
 
 This general authority is usually qualified 
 by reciting a bond which commonly accompa^ 
 nies it, together with the condition annexed 
 to it or by a written defeasance stating the 
 terms upon which it was given and restrain- 
 ing the creditor from making immediate use 
 of it. 
 
 In form, it is, generally, by deed ; but it 
 seems it need not necessarily be so ; 5 Taunt. 
 264. 
 
 This instrument is given to the creditor as 
 a security. Possessing it, he may sign judg- 
 ment and issue an execution, without its being 
 necessary to wait the termination of an action. 
 See 14 East, 576; 2 Term, 100; 1 H. 
 Blackst. 75 ; 1 Stra. 20 ; 2 W. Blackst. 
 1133 ; 2 Wils. 3; 1 Chitty, Bail, 707. 
 
 A warrant of attorney given to confess a 
 judgment is not revocable, and notwithstand- 
 ing a revocation, judgment may be entered 
 upon it^ 2 Ld. Raym. 766, 850 ; 2 Esp. 563. 
 The death of the deb,tor is, however, gene- 
 rally speaking, a revocation ; Co. Litt. 52 6; 
 1 Vent. 310. In Pennsylvania, judgment 
 may be entered up by the prothonotary on 
 such a warrant without the intervention of an 
 attorney; 4 Sm. L. 278; Purd. Dig. 825; 
 but the instrument must show on its face the 
 amount due, unless it can be rendered certain 
 by mere calculation ; 73 Penn. 354. 
 
 The virtue of a warrant of attorney is 
 spent by the entry of one judgment, and a 
 second judgment entered on the same war- 
 rant is irregular ; 6 S. & R. 296 ; 14 id. 170 ; 
 3 Wash. C. C. 558. See, generally, 1 Salk. 
 402 ; 1 Sell. Pr. 374 ; Comyns, Dig. Ahate- 
 mr:nt (E 1, 2), Attorney (B 7, 8) ; 2 Archb. 
 Pr. 12; Bingham, Judgm. 38. 
 
 'WARRANTEE. One to whom a war- 
 ranty is made. Sheppard, Touchst. 181. 
 
 WARRANTIA CHART.a!. An ancient 
 and now obsolete writ, which was issued 
 when a man was enfoeffed of land with war- 
 ranty and then he was sued or impleaded in 
 assize or other action, in which he could not 
 vouch or call to warranty. 
 
 It was brought by the feoflfbr pending the 
 first suit against him, and had this valuable 
 incident, that when the warrantor was vouched, 
 and judgment passed against the tenant, the 
 latter obtained judgment simultaneously 
 against the warrantor, to recover other lands of 
 equal value. Fitzh. N. B. 134 ; Dane, Abr. 
 Index ; 2 Rand. 141, 156 ; 11 S. & R. 115 ; 
 Co. Litt. 100 ; Hob. 22, 217. 
 
 WARRANTOR. One who makes a war- 
 ranty. Shepp. Touchst. 181. 
 
 WARRANTY. In Insurance. Astipu- 
 lation or agreement on the part of the insured 
 party, in the nature of a condition. 
 
 An express warranty is a particular stipula- 
 tion introduced into the written contract by 
 the agreement of the parties. 
 
 An implied warranty is an agreement 
 which necessarily results from the nature of 
 the contract : as, that the ship shall be sea- 
 worthy when she sails on the voyage insured. 
 
 An express warranty usually appears in 
 the form of a condition, expressed or directly 
 implied in the phraseology of the policy, 
 stipulating that certain facts are or shall be 
 true, or certain acts are or shall be done by 
 the assured, who by accepting the insurance 
 ratifies the stipulation. 
 
 Where the stipulation relates wholly to the 
 future, it is a promissory condition or war- 
 ranty; ] Phill. Ins. § 754. 
 
 An express warranty must be strictly com- 
 plied with ; and the assured is not permitted 
 to allege, in excuse for non-compliance, that 
 the risk was not thereby afiected, since the 
 parties have agreed that the stipulated fact or 
 act shall be the basis of the contract; 1 
 Phill. Ins, § 755; unless compliance is ren- 
 dered illegal by a subsequent statute ; 1 Phill. 
 Ins. § 769. 
 
 The more frequent express warranties in 
 marine policies are — time of sailing, and, in 
 time of hostilities, the national character of 
 the insured subject, and neutral insignia and 
 conduct. In fire and life policies they are 
 quite numerous, comprehending all the facts 
 stated by the applicant in his application when 
 incorporated, as it usually is, into the policy 
 and expressly contracted by reference. In 
 fire insurance, express reference is often made 
 to the charter of the company, especially in 
 mutual companies, and, in such companies, 
 to rules and regulations, and conditions in- 
 dorsed upon the"policy ; 1 Phill. Ins. §§ 28, 
 63. A policy of insurance, no less than any 
 other contract, is subject to the condition 
 against fraud. 
 
 The doctrine of the divers warranties and 
 conditions in the different species of insurance 
 has been the subject of a great mass of juris- 
 prudence : viz., — 
 
 In fire policies, with reference to assign- 
 ments of the insured property, or the policy ; 
 17 N. Y. 424, 509 ; 6 Gray, 160 ; 30 Penn. 
 311 ; 26 Conn. 165 ; 3 Dutch. 163 ; 25 Ala. 
 355; 1 Sneed, 444; 19 E. L. & E. 283; 
 conformity to charter; 32 N. H. 313 ; 8 
 Cush. 393 ; 1 Wall. 273 ; 25 N. H. 369 ; 
 condition of the premises, including construc- 
 tion, locality, and manner of using ; 18 N. Y. 
 168, 385; 8 Cush. 79; 31 N. H. 231; 2 
 Curt. C. C. 610 ; 10 Rich. 202 ; 4 Ohio St. 
 285 ; 27 Penn. 325 ; 4 R. I. 141 ; 37 B. L. 
 & E. 561 ; distance of other buildings; 7 N. 
 Y. 153; 6 Gray, 105; frauds ; 28 N. H. 
 149, 167 ; 2 Ohio St. 452 ; kind of risk ; 25 
 
WARRANTY 
 
 801 
 
 WARRANTY 
 
 N. H. 550-; 3 Md. 341 ; 6 McLean, 324 ; 26 
 E. L. & B. 238 ; limiting right of action ; 26 
 N. H. 22 ; 27 Vt. 99 ; 5 Gray, 432 ; 6 Ohio, 
 599 ; 5 R. I. 394 ; 24 Ga. 97 ; notice and de- 
 mand ; 18 Barb. 69 ; 33 N. H. 203 ; and 
 proof of loss ; 8 Gush. 393 ; 2 Gray, 480 ; 11 
 N. Y. 81 ; 29 Penn. 198 ; 18 111. 553 ; 6 
 Ind. 137; 5 Sneed, 139; 20 E. L. & E. 
 541, 590 ; other insurance ; 13 N, Y. 79, 
 253 ; 22 Conn. 575 ; 5 Md. 165 ; 16 N. H. 
 203; 37 Me. 137; 9 Gush. 479; 4 N.J. 
 447 ; 26 Penn. 199 ; 21 Mo. 97s payment of 
 premium; 18 Barb. 541 ; suspension of risk ; 
 11 N. Y. 89; 33 N. H. 9 ; 43 Me. 393; 
 title; 1 Curt. C. C. 193; 1 Gush. 280; 25 
 N. H. 550; 17 Mo. 247 ; 22 Conn. 575; 23 
 Penn. 50 ; 17 Mo. 247 ; 40 Me. 587 ; 14 N. 
 Y. 253; value; 11 Gush. 324; waiver of 
 compliance with a warraiity ; 4 N. J. 67 ; 6 
 Gray, 192. _ 
 
 In life policies, with reference to assign- 
 ment ; 5 Sneed, 259 ; representation, or other 
 stipulations; 11 Gush. 448; 3 Gray, 180; 1 
 Bosw. 338; 3 Md. 341; 21 Penn. 134; 13 
 La. An. 504; 19 Mo. 506; 2 G. B. N. s. 
 257. 
 
 In marine policies, with reference to as- 
 signments ; 33 La. 338 ; contraband trade ; 
 43 Me. 460 ; other insurance ; 17 N. Y. 401 ; 
 seaworthiness; 3 Ind. 23; 1 Wheat. 399; 1 
 Binn. 592; 1 Johns. 241; 7 Pick. 259; 4 
 Mas. 439; 1 Pet. 170; Dougl. 781; 1 Gamp. 
 1 ; 2 B. & Aid. 320 ; 5 M. & W. 414 ; Roccus, 
 n. 22 ; suspension of risk ; 3 Gray, 415 ; title ; 
 19 N. Y. 179. 
 
 Waiver of the right to insist upon the per- 
 formance of a condition may occur under a 
 policy of this description: as, of the condi- 
 tion relative to assignment ; 3?, N. H. 95 ; or 
 answers to questions ; 7 Gray, 261 ; or dis- 
 tance of buildings; 6 Gray, 175; 7 id. 261 ; 
 going out of limits ; 33 Conn. 244 ; limita^ 
 tion of action ; 14 N. Y. 253 ; oiTer of arbi- 
 tration ; 6 Gray, 192 ; payment of premium 
 or assessment ; 19 Barb. 440; 25 Conn. 442; 
 38 Me. 439; 31 Penn. 438; proof of loss; 
 21 Mo. 81; 17 N. Y. 428; seaworthiness; 
 37 Me. 137 ; title; 35 N. H. 328. 
 
 A clause in a policy of insurance against 
 fire, that nothing but a distinct specific agree- 
 ment clearly expressed and endorsed on the 
 policy shall operate as a waiver of any printed 
 or written condition, warranty, or restriction 
 thereon, is construed to refer to those condi- 
 tions which enter into and form a part of the 
 contract of insurance, and not to those stipu- 
 lations which are to be performed after a 
 loss has occurred, such as giving notice and 
 furnishing preliminary proof of loss; 36 Ind 
 102 ; May, Ins. 626. 
 
 See Deviation; Poucy; Represen- 
 tation ; Seaworthiness. 
 
 In Sales of Personal Property. A war- 
 ranty is an express or implied statement of 
 something which a party undertakes shall be 
 part of a contract, and, though part of the 
 contract, collateral to the express object of it. 
 Benj. Sales, § 600. See 60 N. Y. 450. 
 Vol. II.— 51 
 
 An express warranty is one by which the 
 warrantor covenants or undertakes to insure 
 that the thing which is the subject of the 
 contract is or is not as there mentioned : as, 
 that a horse is sound ; that he is not five years 
 old. 
 
 An implied warranty is one which, not 
 being expressly made, the law implies by the 
 fact of the sale. Cro. Jac. 197. 
 
 In general, there is no implied warranty 
 of the quality of the goods sold; 2 Kent, 
 374; Go. Litt. 102 a; 2 Bla. Com. 452; 
 Dougl. 20; 1 Pet. 317; 1 Johns. 274; 20 
 id. 196; 4 Conn. 428; 10 Mass. 197; 18 
 Pick. 59; 12 S. & R. 181; 72 Penn. 229; 
 1 Hard. 531 ; 1 Murph. 138 ; 4 Hayw. 227 ; 
 especially in cases of a specific chattel already 
 existing which the buyer has inspected ; 4 M. 
 & W. 64 ; 42 N. H. 165. 
 
 But where a chattel is to be made or sup- 
 plied to the order of the purchaser, there is 
 an implied warranty that it is fit for the pur- 
 pose for which it is ordinarily used, or for 
 which it has been specially made; Benj. 
 Sales, § 645 ; 53 N. Y. 515. Thus where a 
 party conveyed a ship to another by deed, 
 but at the time of the conveyance the ship 
 was ashore in a wrecked and ruinous condi- 
 tion, it was held that there was an implied 
 warranty that the article conveyed should be 
 a ship, and not a mere " bundle of timber" ; 
 3 M. & W. 390. Another exception is in 
 the sale of goods by sample. There is a war- 
 ranty that their quality is equal to the sample ; 
 13 Mass. 139 ; 9 Wend. 20 ; 2 Sandf. 89 ; 
 
 3 Rawle, 37 ; 44 N. Y. 289. See Sample. 
 An implied warranty may also result from 
 the usage of a particular trade ; 2 Disney, 
 482; 4 Taunt. 847. In a sale by description 
 of goods not inspected by the buyer, there is 
 an implied warranty that the goods are sale- 
 able or merchantable; Benj. Sales, 8 656; 
 24 Wise. 508; 21 Iowa, 508; 53 N. Y. 518; 
 
 4 Gamp. 144; but see 23 Me. 212. It has 
 been held that words of description constitute 
 a warranty that the articles sold are of the 
 quality and description so described ; 1 1 Pick. 
 99 ; 3 Rawle, 23 ; but the better opinion has 
 been said to be that the words of description 
 constitute not a warranty of the description, 
 but a condition precedent to the seller's right 
 of action, that the thing which he ofiers to 
 deliver, or has delivered, should answer the 
 description; 4 M. & W. 39 a; Benj. Sales, 
 § 600. Where the buyer relies on the seller's 
 skill and judgment to supply him an article, 
 there is an implied warranty that the article 
 will suit the desired purpose ; 2 M. & G. 279 ; 
 Benj. Sales, § 661. Pinally, it is said that 
 there is always an implied warranty in sales 
 of provisions for household use ; 1 8 Pick. 5 7 ; 
 10 Mass. 197; IS Mich. 51; 50 Barb. 116. 
 But see Benj. Sales, § 670. 
 
 The rule of the civil law was that a fair 
 price implied a warranty of quality; Dig. 
 21. 2. 1. This rule has been adopted in 
 Louisiana; 1 La. An. 27; and in South 
 Carolina; 1 Bay, 324. There may be an 
 
WARRANTY 
 
 802 
 
 WARREN 
 
 implied warranty as to character ; 13 Mass. 
 139 ; 2 Pick. Mass. 214 ; 2 Harr. & G. 495 ; 
 
 2 M. & G. 279 ; 20 Johns. 204 ; 4 B. & C. 
 108 ; and even as to quality, from statements 
 of the seller ; 40 Me. 9 ; 24 Barb. 649. 
 
 It is settled that in an executory agreement 
 the vendor warrants, by implication, his title 
 to the goods which he promises to sell, and 
 that in thfe sale of an ascertained specific 
 chattel, an affirmation by the vendor that the 
 chattel is his is equivalent to a warranty of 
 title, and that this affirmation may be implied 
 from his conduct as well as his words. It is 
 further said that the present rule in England 
 is, in the absence of such implication or affir- 
 mation, that the sale of a personal chattel 
 implies an affirmation by the vendor that the 
 chattej is his, and, therefore, he warrants the 
 title, unless it be shown by the facts and 
 circumstances of the sale that the vendor did 
 not intend to assert ownership, but only to 
 transfer such interest as he might have in the 
 chattel sold ; Benj. Sales, §^ 627, 639. 
 
 As to goods in the possession of the vendor, 
 there is an implied warranty of title ; but 
 where the goods sold are in possession of a 
 third party at the time of the sale, then there 
 is no such warranty ; 36 Me. 501; 28 Miss. 
 772; Story, Sales, 459; 2 Kent, 478; contra, 
 
 3 Term, 58 ; 17 C. B. N. s. 708. 
 
 A vendor knowing he has no title, and 
 concealing the fact from the vendee, is liable 
 on the ground of fraud; Benj. Sales, § 627. 
 
 Antecedent representations, made as an 
 inducement to the buyer, but not forming 
 part of the contract when concluded, are not 
 wan-anties ; it is not, however, necessary that 
 the representation should be made simulta- 
 neously with the bargain, but only that it 
 should enter into it; 15 C. B. 130; Benj. 
 Sales, § 610. No special form of words is 
 necessary to constitute a warranty ; 45 Cal. 
 673; 75 111. 81; 4 Daly, 277; 3 Mod. 261. 
 The question is for the jury, to be inferred 
 from the sale and the circumstances of the par- 
 ticular case ; 8 Cow. 25 ; 9 N. H. Ill; even 
 if the contract is written ; Benj. Sales, § 614 ; 
 but see 10 Allen, 242. The rule is simplex 
 commendatio non obligat; see 2 Esp. 572. A 
 warranty made after a sale requires a new 
 consideration; 8 Q. B. 234; 100 Mass. 632. 
 
 See, generally, Campbell on Sales. 
 
 In Sales of Real Property. A real 
 covenant, whereby the grantor of an estate 
 of freehold and his heirs were bound to war- 
 rant the title, and, either upon voucher or by 
 judgment in a writ of warrantia chartce, to 
 yield other lands to the value of those from 
 which there has been an eviction by a para- 
 mount title. Co. Litt. 365 a. 
 
 Collateral warranty existed when the heir's 
 title was not derived from the warranting 
 ancestor, and yet it barred the heir from 
 claiming the land by any collateral title, 
 upon the presumption that he might there- 
 after have assets by descent from or through 
 the ancestor ; and it imposed upon him the 
 obligation of giving the warrantee other 
 
 lands in case of eviction, provided he had 
 assets. 2 Bla. Com. 301. 
 
 Lineal warranty existed when the heir 
 derived title to the land warranted, either 
 from or thtough the ancestor who made the 
 warranty. 
 
 The statute of 4 Anne, c. 16, annulled 
 these collateral warranties, which had become 
 a gre^ grievance. Warranty In its original 
 form has never, it is presumed, been known 
 in the United States. The more plain and 
 pliable form^f a covenant has been adopted 
 in Its place ; and this covenant, like all other 
 covenants, has always been held to sound 
 in damages, which, after judgment, may be 
 recovered out of the personal or real estate, as 
 in other cases. And in England the matter 
 has become one of curious learning and of 
 little or no practicdl importance. See 4 Kent, 
 469 ; 3 Rawle, 67, n. ; 2 Wheat. 45 ; 4 Dall. 
 Penn. 442; 1 Sumn. 368; 17 Pick. 14; 1 
 Ired. 509 ; 2 Saund. 38, n. 5. 
 
 Mr. Kawle, in his work on Covenants for Title, 
 p. 205, says there is no evidence that the covenants 
 of warranty as employed in the United States 
 ever had a place in English conveyancing. In 
 the earlier conveyances which remain on record 
 in the colonies, are to be found some or all of 
 the covenants which were coming into use in the 
 mother country, together with a clause of war- 
 ranty, sometimes with and sometimes without 
 the addition of words of covenant. Later the 
 words of covenant became more general, and at 
 the present day their use is almost universal. 
 As to the extent and scope of the American 
 covenant of warranty, the sounder view is that 
 it is merely a covenant for quiet enjoyment, the 
 only difference being that under the latter, a re- 
 covery may sometimes be had where it would be 
 denied under the former. 
 
 WARRANTY, VOUCHER TO. In 
 Old Practice. The calling a warrantor into 
 court by the party warranted (when tenant 
 In a real action brought for recovery of such 
 lands), to defend the suit for him ; Co. Litt. 
 101 6; Comyns, Dig. Voucher (A 1); 
 Booth, R. A. 43 ; 2 Saund. 32, n. 1 ; and the 
 time of such voucher is after the demandant 
 has counted. 
 
 It lies in most real and mixed actions, hut not 
 in personal. Where the voucher has been made 
 and allowed by the court, the vouchee either 
 voluntarily appears, or there issues a judicial 
 writ (called a summons ad warrantizandum), 
 commanding the sheriff to summon him. Where 
 he, either voluntarily or in obedience to this 
 writ, appears and offers to warrant the land to 
 the tenant, it is called entering into the warranty ; 
 after which he is considered as tenant in the 
 action, in the place of the original tenant. The 
 demandant then counts against him de novo, the 
 vouchee pleads to the new count, and the cause 
 proceeds to issue. 
 
 "WARREN {Germ, vjahren, French ga- 
 renne). A place privileged by prescription or 
 grant of the king for the preservation of hares, 
 conies, partridges, and pheasants, or any of 
 them. An action lies for killing beasts of war- 
 ren inside the warren ; but they may be killed 
 damage feasant on another's land ; 6 Co. 104. 
 It need not be inclosed ; Co. 4th Inst. 318. 
 
WASHINGTON 
 
 803 
 
 WASTE 
 
 WASHINGTON. One of the territories 
 of the United States of America. 
 
 This territory, lying between the Columbia 
 river and the 46th parallel of latitude on the 
 south and the 49th pai-allel on the north, the 
 Kocky Mountains on the east, and the Pacific 
 ocean on the west, and formerly constituting a 
 part of Oregon, was established by an act of 
 congress of March 2, 1853, which act is the fun- 
 damental law of the territory. 10 Stat, at 
 Large. The limits upon the north were settled 
 by treaty of the United States with Great 
 Britain signed June 15, 1846. Proclamation 
 thei-eof was made by the president August 5, 
 1846. The organic act erectingthe territory was 
 approved March 3, 1853. The territory includes 
 that part of the territory of Oregon lying north 
 of the Columbia river to the point where said 
 river crosses the 46th parallel of north latitude, 
 thence on said parallel to the summit of the 
 Kocky Mountains. The jmovisions of the or- 
 ganic act, with a few exMptions, are similar to 
 those of the act erecting the territory of New 
 Mexico. See New Mexico. 
 
 This territory exercises concurrent jurisdiction 
 with the state of Oregon over all offences com- 
 mitted on the Columbia river, where that river 
 forms a common boundary between the state 
 and territory ; E. S. 1950. 
 
 The laws now in force in the territory, by vir- 
 tue of the legislation of congress in reference to 
 Oregon, when that state was a territory, which 
 were enacted and passed subsequently to Sept. 
 1, 1848, applicable to the territory, together 
 with the legislative enactments of Oregon while 
 a territory prior to March 8, 1853 and not incon- 
 sistent with the provisions of congress, are con- 
 tinued in force in this territory, excepting where 
 repealed by subsequent legislation ; K. S. 1953. 
 
 ■WASTE. Spoil or destruction, done or 
 permitted, to lands, houses, or other corporeal 
 hereditaments, by the tenant thereof, to the 
 prejudice of the heir or of him in reversion 
 or remainder. 
 
 Permissive waste consists in the mere 
 neglect or omission to do what will prevent 
 injury : as, to suffer a house to go to decay 
 for the want of repair. And it may be in- 
 curred in respex!t to the soil, as well as to the 
 buildings, trees, fences, or live stock on the 
 premises. See infra. 
 
 Voluntary waste consists in the commission 
 of some destructive act : as, in pulling down 
 a house or ploughing up a flower-garden. 1 
 Paige, Ch. 573. 
 
 Voluntary waste is committed upon culti- 
 vated yields, orchards, gardens, meadows, 
 and the like, whenever a tenant uses them 
 contrary to the usual course of husbandry or 
 in such a manner as to exhaust the soil by 
 negligent or improper tillage; 6 Ves. Ch. 
 328; 2 Hill, N. Y. 157; 2 B. & P. 86. It 
 is, therefore, waste to convert arable into 
 wood land, or the contrary ; Co. Litt. 53 b. 
 Cutting 'down fruit-trees, although planted 
 by the tenant himself, is waste ; 2 RoUe, 
 Abr. 817 ; and it was held to be waste for an 
 outgoing tenant of garden-ground to plough 
 up strawberry-beds which he had bought of a 
 former tenant when he entered; 1 Camp. 
 227. When lands are leased on which there 
 are open mines of metal or coal, or pits of 
 
 gravel, lime, clay, brick-earth, stone, and the 
 like, the tenant may dig out of such mines or 
 pits ; but he cannot open any new mines or 
 pits without being guilty of waste ; Co. Litt. 
 53 6. See Mines. Any carrying away of 
 the soil is also waste ; Comyns, Dig. Waste 
 (D 4) ; 6 Barb. 13 ; Co. Litt. 53 6 ; 1 Sch. 
 &L.8. 
 
 It is committed in houses by pulling them 
 down, or by removing wainscots, floors, 
 benches, furnaces, windows, doors, shelves, 
 and other things once fixed to the freehold, 
 although they may have been erected by the 
 lessee himself, unless they are mere fixtures. 
 See FlxTOKES. And this kind of waste 
 may take place not only in pulling down 
 houses or parts of them, but also in changing 
 their forms : as, if the tenant puU down a 
 house and erect a new one in its place, whether 
 it be larger or smaller than the first ; 2 Eolle, 
 Abr. 815 ; or convert a parlor into a stable, 
 or a grist-mill into a fulling-mill ; ibid. ; or 
 turn two rooms into one ; ibid. The building 
 of a house where there was none before was, 
 by the strict rules of the common law, said to 
 be waste ; Co. Litt. 53 a ; and taking it down 
 after it was built was waste also ; 1 B. & Ad. 
 161 ; 8 Mass. 416 ; 4 Pick. 310 ; 19 N. Y. 
 234; 16 Conn. 322; 2M'Cord, 329: 1 Harr. 
 & J. 289 ; 1 Watts, 378. 
 
 Voluntary waste may also be committed 
 upon timber; and in those countries where 
 timber is scarce and valuable, the law is strict 
 in this respect. But many acts which in 
 England would amount to waste are not so 
 here. The law of waste accommodates itself 
 to the varying wants and conditions of dif- 
 ferent countries : that will not, for instance, 
 be waste in an entire woodland country which 
 would be so in cleared one. The clearing up 
 of land for the purposes of tillage in a new 
 country where trees abound is no injury to 
 the inheritance, but, on the contrary, is a 
 benefit to the remainderman, so long as there 
 is suflacient timber left and the land cleared 
 bears a proper relative proportion to the 
 whole tract; 4 Kent, 316 ; 4 Watts, 463; 6 
 Munf. 134 ; 2 South. 552 ; 6 T. B. Monr. 
 342; 6 Yerg. 334; 5 Mas. 13; 2 Hayw. 
 339 ; 26 Wend. 122. 
 
 The extent to which wood and timber on 
 such land may be cut without waste, is a 
 question of fact for a jury to determine under 
 the direction of the court ; 7 Johns. 227. A 
 tenant may always cut trees for the repair of 
 the houses, fences, hedges, stiles, gates, and 
 the like ; Co. Litt. 53 b ; and for making and 
 repairing all .instruments of husbandry : as, 
 ploughs, carts, harrows, rakes, forks, etc. ; 
 Wood, Inst. 344. See Estovers. And he 
 may, when unrestrained by the terms of the 
 lease, cut timber for firewood, if there be not 
 enough dead timber for such purposes ; Co- 
 myns, Dig. Waste (D 5). But where, under 
 such circumstances, he is entitled to cut down 
 timber, he is restrained, nevertheless, from 
 cutting ornamental trees or those planted for 
 
WASTE 
 
 804 
 
 WASTE 
 
 shelter; 6 Ves. Ch. 419; or to exclude ob- 
 jects from sight; 16 Ves. Ch. 375; 7 Ired. 
 Eq. 197 ; 6 Barb. 9. 
 
 A tenant of a dove-house, warren, park, 
 fish-pond, or the like, would also be guilty of 
 waste if he took away animals therefrom to 
 such an extent as not to leave as large a stock 
 of them as he found when he came in ; Co. 
 Litt. 63. 
 
 In New York it has been held that it was 
 waste for a tenant for life to neglect to pay 
 the interest on a mortgage whereby the land 
 was sold to the prejudice of the remainder- 
 man; 16 Hun, 226. 
 
 Windfalls are the property of the landlord ; 
 for whatever is severed by inevitable neces- 
 sity, as, by a tempest, or by a trespasser, and 
 by wrong, belongs to him who has the inheri- 
 tance; 3 P. Wms. 268; 11 Co. 81. 
 
 In general, a tenant is answerable for wast» 
 although it is committed by a stranger ; for 
 he is the custodian of the property, and must 
 take his remedy over ; 2 Dougl. 745 ; 1 Taunt. 
 198 ; 1 Denio, 104. But he is not liable when 
 the damage is caused by lightning, tempest, 
 or a public enemy ; Co. 2d Inst. 303 ; 5 Co. 
 21 ; 4 Kent, 77. He was also liable, at com- 
 mon law, for all damages done by fire, acci- 
 dental or otherwise, upon the premises ; but 
 the English statute of 14 Geo. III. e. 78, first 
 enacted that no action should be had against 
 any person in whose house, chamber, or other 
 building or on whose estate a fire shall acci- 
 dentally begin ; and this statute has been very 
 generally re-enacted throughout the United 
 States. The protection afforded by these 
 statutes, however, extends only to a case of 
 accidental fire — that is, to one which cannot 
 be traced to any particular or wilful cause — 
 and stands opposed to the negligence of either 
 servants or masters. And therefore an action 
 still lies against a person upon whose premises 
 a fire commences through the negligence of 
 himself or his servants and is productive of 
 injury to his neighbor; 1 Denio, 207 ; 8 Johns. 
 421 ; 2 Harr. Del. 443 ; 21 Pick. 378 ; 1 
 Halst. 127 ; 6 Taunt. 44 ; Tayl. Landl. & T. 
 196. 
 
 Permissive waste to buildings consists in 
 omitting to keep them in tenantable repair ; 
 suffering the timbers to become rotten by neg- 
 lecting to cover the house ; or suffering the 
 walls to fall into decay for want of plastering, 
 or the foundation to be injured by neglecting 
 to turn off a stream of water, and the like ; 
 Co. Litt. 53 a. See Landlord and Ten- 
 ant. At common law, the mere suffering of 
 a house to remain unroofed, if it was so at the 
 commencement of the lease, would not be 
 waste, but a tenant assumed the responsibility 
 of any other part of the house thereby be- 
 coming ruinous or decayed. And so, al- 
 though the injury or destruction of a house by 
 lightning, tempest, or a public enemy would 
 not be waste, yet to suffer it to remain ruined 
 would be ; 2 RoUe, Abr. 818 ; F. Moore, 69 ; 
 10 Ad. & E. 398. Permissive waste in 
 houses, however, as a general rule, is now 
 
 only punishable when a tenant is bound to re- 
 pair, either expressly or by implication ; 4 B. 
 &P. 298; 10 B. &C. 312. 
 
 The redress for this injury is of two kinds, 
 preventiue and correctioe. A reversioner or 
 remainderman, in fee, for life, or for years, 
 may now recover, by an ordinary action at 
 law, all damages he has sustained by an act 
 of voluntary waste committed by either his 
 tenant or a stranger, provided the injury af- 
 fects his reversion. But as against a tenant for 
 years, or from year to year, he can only sus- 
 tain an action for damages for permissive 
 waste if his lease obliges the tenant to repair ; 
 
 2 Saund. 252 d, note ; 3 East, 38 ; 10 B. & 
 C. 312. The statutes of the several states 
 also provide special relief against waste in a 
 great variety of c^s, following, in general, 
 the English Statut"of Gloucester, which not 
 only forfeits the premises, but gives exem- 
 plary damages for all the injury done. These 
 legal remedies, however, are still so inade- 
 quate, as well to prevent future waste as to 
 give redress for waste already committed, that 
 they have in a great measure given way to 
 the remedy by bill in equity, by which not 
 only future waste, whether voluntary or per- 
 missive, will be prevented, but an account 
 may be decreed and compensation given for 
 past waste in the same proceeding ; 2 Mer. 
 408 ; 1 Ves. Ch. 93 ; 2 Story, Eq. Jnr. 179; 
 Tayl. Landl. & T. 690. 
 
 The reversioner need not wait until waste 
 has actually been committed before filing his 
 bill ; for if he ascertains that the tenant is 
 about to commit any act which would operate 
 as a permanent injury to the estate, or if he 
 threatens or shows any intention to commit 
 waste, the court will at once interfere and re- 
 strain him by injunction from doing so ; Atk. 
 182; 18 Ves. Ch. 355; 2 V. & B. 349; 1 
 Johns. Ch. 435 ; 1 Jac. & AV. 653. 
 
 Sometimes a tenant, whether for life or for 
 years, by the instrument creating his estate, 
 holds his lands without impeachment of waste. 
 This expression is equivalent to a general per- 
 mission to commit waste, and at common law 
 would authorize him to cut timber, or open 
 new mines and convert the produce to his 
 own use ; Co. Litt. 220 ; 11 Co. 81 J ; 15 
 Ves. 425. But equity puts a limited construc- 
 tion upon this clause, and only allows a ten- 
 ant those powers under it which a prudent 
 tenant in fee would exercise, and will, there- 
 fore, restrain him from pulling down or di- 
 lapidating houses, destroying pleasure-houses, 
 or prostrating trees planted for ornament or 
 shelter ; 2 Vern. 739 ; 3 Atk. 216 ; 6 Ves. 
 110; 16 id. 375. 
 
 See, on the subject in general, Woodf. 
 LandL & T. 217; Bacon, Abr. Waste; 
 Viner, Abr. Waste; Comyns, Dig. Waste; 
 
 3 Bla. Com. 180 ; 1 Washb. Real Prop.; 
 Tud. L. Cas. R. P. 
 
 As to remedies against waste by injunction, 
 see 5 P. Wms. 268, n. F; 6 Ves. Ch. 107, 
 419, 787; 8 id. 70; 16 id. 376; Jac. Ch. , 
 70: Drewry, Inj. 134; Kerr, Inj. 235. As 
 
WASTE-BOOK 
 
 805 
 
 WATER-COURSE 
 
 between tenants in common, 6 Taunt. 24 ; 16 
 Ves. Ch. 182 ; 19 id. 159 ; Injunction. 
 
 As to remedy by writ of estrepement to 
 prevent waste, see Estrepement ; Woodf. 
 Landl. & T. 447 ; 2 Yeates, 281 ; 4 Sm. 
 Laws of Penn. 89 ; 3 Bla. Com. 226. 
 
 As to remedies in cases of fraud in com- 
 mitting waste, see Hov. Frauds, 226-238. 
 
 WASTE-BOOK. A book used among 
 merchants. Ail the dealings of the mei-- 
 chants are recorded in this book in chrono- 
 logical order as they occur. 
 
 WATCH. To stand sentry and attend 
 guard during the night time. Certain offi- 
 cers called watchmen are appointed in most 
 of the United States, whose duty it is to ar- 
 rest all persons who are violating the law or 
 breaking the peace. Se« 1 Bla. Com. 356 ; 
 1 Chitty, Cr. Law, 14, 20. 
 
 WATCH AND WARD. A phrase used 
 in the English law to denote the superinten- 
 dence and care of certain officers whose duties 
 are to protect the public from barm. 
 
 WATCHMAN. An officer in many cities 
 and towns, whose duty it is to watch during 
 the night and take care of the property of 
 the inhabitants. 
 
 He possesses, generally, the common-law 
 authority of a constable to make arrests, 
 where there is reasonable ground to suspect a 
 felony, though there is no proof of a felony 
 having been committed. 1 Chitty, Cr. Law, 
 24; 2 Hale, PI. Cr. 96 ; Hawk. PI. Cr. b. 
 2, c. 13, s. 1, etc.; 1 East, PI. Cr. 303 ; Co. 
 2d Inst. 62 ; Comyns, Dig. Imprisonment 
 (H4); Dane, Abr. Index; 3 Taunt. 14; 1 
 B. & Aid. 227 ; Peake, 89 ; 1 Mood. Cr. 
 Cas. 334 ; 1 Esp. 294. See Arrest. 
 
 WATER. That liquid substance of 
 which the sea, the rivers, and creeks are 
 composed. 
 
 A pool of water, or a stream or water- 
 course, is considered as part of the land: 
 hence a pool of twenty acres would pass by 
 the grant of twenty acres of land, without 
 mentioning the water; 2 Bla. Cora. 18 ; 2 N. 
 H. 255, 391 ; 1 Wend. 255 ; 5 Conn. 497 ; 8 
 Mete. 466; 2 Harr. & J. 195; 8 Penn. 13. 
 A mere grant of water passes only a fishery ; 
 Co. Litt. 4 i ; 5 Cow. 216. But the owner 
 of land over which water flows may grant the 
 land, reserving the use of all. the water to 
 himself, or may grant the use of all or a por- 
 tion of the water, reserving the fee of the 
 land to himself; 26 Vt. 64 ; 3 Hill, N. Y. 
 418 ; 6 Mete. 131 ; 18 E. L. &E. 164. 
 
 WATER BAILIFF. In English Law. 
 An officer appointed to search ships in ports. 
 10 Hen. VII. 30. 
 
 WATER-COURSE. This term is ap- 
 plied to the flow or movement of the water in 
 rivers, creeks, and other streams. 
 
 A water- course is a stream usually flowing 
 in a particular direction, in a definite channel, 
 and discharging into some other stream or 
 body of waier ; and the terra does not include 
 
 surface-water conveyed from a higher to a 
 lower level for limited periods during the 
 melting of snow, or during or soon after the 
 fall of rain, through hollows or ravines, which 
 at other times are dry ; 27 Wise. 656. 
 
 In a legal sense, property in a water-course 
 is comprehended under the general name of 
 land : so that a grant of land conveys to the 
 grantee not only fields, meadows, and the 
 like, but also all the rivers and streams which 
 naturally pass over the surface of the land ; 1 
 Co. Litt. 4 ; 2 Brownl. 142 ; 2 N. H. 265 ; 5 
 Wend. 423. See Water. 
 
 Those who own land bounding upon a 
 water-course are denominated by the civilians 
 riparian proprietors ; and this convenient term 
 has been adopted by judges and writers on 
 the common law ; Ang. Wat.-Courses, 3 ; 3 
 Kent, 354 ; 4 Mas. 397. 
 
 In the United States all navigable water- 
 courses are a species of highway, and come 
 under the control of the states, except when 
 they are used in foreign or inter-state com- 
 merce, and then congress has authority over 
 them ; Cooley, Const. Lim. 589. See Nav- 
 igable Water. The public cannot, in the 
 United States, gain any proprietary right in 
 streams of inland water too small to be used 
 for the transportation of property ; Ang. 
 Water-C. § 2; 11 Me. 278. In the United 
 States a navigable stream means a stream nav- 
 igable in fact. The common-law definition 
 confining the word navigable to rivers where 
 the tide ebbs and flows, has not been adopted ; 
 10 Am. Dec. 699. The riparian proprietor 
 owns to high-water mark on all navigable 
 rivers; 21 Am. Dec, 707. See Navigable 
 Waters. Water-courses above the flow of 
 the tide are private, but, if sufficiently large 
 to be of public use in transporting property, 
 are highways over which the public have a 
 common right in subservience to which the 
 private ownership of the soil is to be en- 
 joyed ; 26 Am. Dec. 626. 
 
 By the rules of the common law, all pro- 
 prietors of lands have precisely the same 
 rights to waters flowing through their domains, 
 and one can never be permitted so to use the 
 stream as to injure or annoy those situated on 
 the course of it, either above or below him. 
 They have no property in the water itself, 
 but a simple usufruct ; aqua currit et debet 
 currere ut currere solebat, is the language of 
 the law. Accordingly, while each successive 
 riparian proprietor is entitled to the reasonable 
 use of the water for the supply of his natural 
 wants and for the operation of mills and ma- 
 chinery, he has no right to flow the water back 
 upon the proprietor above; Cro. Jac. 556; 
 9 N. H. 502 ; 20 Penn. St. 86 ; 3 Rawle, 
 84 ; 4 E. L. & E. 266 ; 1 B. & Aid. 874 ; 3 
 Green, N. J. 116; 4 111. 452; 38 Me. 243; 
 nor to discharge it so as to flood the proprie- 
 tor below; 17 Johns. 306; 5 Vt. 371; 3 
 Harr. & J. 231 ; nor to divert the water; 17 
 Conn. 288; 13 Johns. 212; 24 Ala. N. s. 
 130 ; 28 Vt. 670 ; 38 E. L. & E. 526 ; 22 
 Am. Dec. 745 ; 2 Disn. 400 ; even for the 
 
WATER-CO UKSE 
 
 806 
 
 WAY 
 
 p'arpose of irrigation, unless it be returned 
 -witnout essenti^ diminution ; 38 E. L. k E. 
 241; 13 Mass. 420; 5 Pick. 175; 8 Me. 
 253 ; 12 Wend. 330 ; 4 111. 496 ; nor to ob- 
 struct or detain it, except for some reasonable 
 purpose, such as to obtain a head of water 
 for a mill and to be again discharged, so as to 
 allow all on the same stream a fair participa- 
 tion ; 17 Barb. 654; 10 Cash. 867; 6 Ind. 
 324 ; 28 Vt. 459 ; 29 Penn. 98 ; 4 Mas: 401 ; 
 17 Johns. 306; 13 Conn. 303; see Dam; 
 nor to corrupt the quality of the water by un- 
 wholesome or discoloring impurities; 24 
 Penn. 298 ; 22 Barb. 297 ; 3 Kaiwle, 397 ; 
 8 E. L. & E. 217 ; 4 Ohio, 833 ; as to turn- 
 ing surface-water off one's own land on to 
 a neighbor's, see 81 Am. Kep. 216; 35 id. 
 431. But, while such are the rights of the 
 riparian proprietors when unaffected by con- 
 tract, these rights are subject to endless 
 modifications on the part of those entitled 
 to their enjoyment either by grant ; 3 Conn. 
 373 ; 13 Johns. 525 ; 17 Me. 281 ; 6 Mete. 
 181 ; 7 id. 94 ; 7 Penn. 848 ; 18 E. L. & E. 
 164; 9N. H. 282; 3 N. Y. 253; or by re- 
 servation ; 6 N. Y. 83 ; 20 Vt. 250 ; or by 
 a license; 2 Gill, 221; 18 Conn. 303; 1 
 Mete. Mass. 831; 14 S. & R. 267; 4 East, 
 107 ; or by agreement; 19 Pick. 449 ; Ang. 
 Water-C. § 141 ; 3 Harr. & J. 282 ; 17 Wend. 
 136 ; or by twenty years' adverse enjoynierit 
 from which a grant or contract will be implied ; 
 1 Camp. 463; 4 Mas. 397; 6 Scott, 167; 9 
 Pick. 251 ; Ang. Water-C. § 200 ; in such a 
 way as to adapt the uses of the water to the 
 complex and multiplying demands and im- 
 provements of modern civilization. 
 
 Wherever a water-course divides two es- 
 tates, each estate extends to the thread or 
 central line of the stream ; but the riparian 
 owner of neither can 'lawfully carry off any 
 part of the water without the consent of the 
 other opposite, each riparian proprietor being 
 entitled not to half or other proportion of the 
 water, but to the whole bulk of the stream, 
 undivided and undivisible, or per my et per 
 tout; 13 Johns. 212; 8 Me. 253; 3 Sumn. 
 189 ; 13 Mass. 607 ; 1 Paige, Ch. 447 ; 2 
 Am. Dec. 574 ; 16 id. 342. If the bed of a 
 water-course is suddenly changed, former 
 boundaries and possessions are not altered ; 
 but if the stream ^rorfMftZZy gain on a person's 
 land, the loser of the soil has no remedy ; 2 
 Bla. Com. 262; 17 Vt. 387; Ang. Water-C. 
 § 57. A grant bounded by a navigable water- 
 course extends only to high- water mark ; but 
 one bounded by a non-navigable stream ex- 
 tends to the middle thereof ; 16 Am. Dec. 
 447 ; 10 id. 366 ; 80 id. 278, 286. When 
 an island is on the side of a river, so as to 
 give the riparian owner of that side only one- 
 fourth of the water, he has no right to place 
 obstructions at the head of the island to cause 
 one-half of the stream to descend on his side 
 of the river, but the owner opposite is entitled 
 to the flow of the remaining three-fourths ; 10 
 Wend. 260. 
 
 Artificial water-courses, canals, sewers, 
 
 water-works, etc., are wholly the creatures of 
 statute, except when a man has a drain across 
 another's land, and there it is generally a 
 question of grant or easement. 
 
 As to under-ground flow of watfer, see Sub- 
 terranean Water. And see, generally, 
 Washburn, Easements ; Angell, Water- 
 Courses ; 3 Kent, Comm. 439, 441 ; Wool- 
 rych, Waters; Schultes, Aquatic Rights; 
 Coulson & Forbes, Law of Waters ; 1 So. L. 
 Rev. N. 8. 59 ; Lois des Bat. pt. 1, c. 3, sec. 
 1, art. 8; also River; Stream; Lake; 
 Pool ; Pond ; Riparian Proprietors. 
 
 'WATERGANG (Law Lat. watergaiu 
 giurn). A Saxon word for a trench or course 
 to cairy a stream of water, such as are com- 
 monly made to drain water out of marshes. 
 Ordin. Marisc. de Homn. Chart. Hen. IlL 
 
 WATERGAVEL. A rent paid for fish- 
 ing in, or other benefit from, some river. 
 Chart. 15 Hen. HI. 
 
 WAVESON. Such goods as appear up- 
 on the waves after shipwreck. Jacob, Law 
 Diet. 
 
 WAY. A passage, street, or road. 
 
 A right of Way is the privilege which an 
 individual, or a particular description of indi- 
 viduals, as, the inhabitants of a villlage or the 
 owners or occupiers of certain farms, have of 
 going over another's ground. It is an incor- 
 poreal hereditament of a real nature, entirely 
 different from a common highway. Cruise, 
 Dig. tit. xxiv. s. 1. 
 
 A right of -fray may arise hy prescription 
 and immemorial usage, or by an unmter- 
 rupted enjoyment for twenty years under' a 
 ckim of right ; Co. Litt. 113 ; 1 RoUe, Abr. 
 936 ; 6 Harr. & J. 474 ; 4 Gray, 1 77, 547 ; 20 
 Penn. 331, 458; 4 Barb. 60; 4 Mas. 402; 
 8 Pick. 604; 24 N. H. 440. By grant: as, 
 where the owner grants to another the liberty 
 of passing over his land ; 3 Lev. 306 ; 1 Ld. 
 Baym. 75 ; 19 Pick. 250 ; 20 id. 291 ; 7 B. 
 & C. 267 ; Crabb, R. P. § 366. If thegrant 
 be of a freehold right it must be by deed ; 5 
 B. & C. 221 ; 4 R. I. 47. By necessity : as, 
 where a man purchases land accessible only 
 over land of the vendor, or sells, reserving 
 land accessible only over land of the vendee, 
 he shall have a way of necessity over the 
 land which gives access to his purchase or re- 
 servation ; 5 T&unt. 311; 23'Penn, 333; 2 
 Mass. 203 ; 8 Rawle, 495; 11 Mo. 613 ; 29 
 Me. 499 ; 27 N. H. 448 ; 19 Wend. 607 ; IS 
 Conn. 39 ; 126 Mass. 446 ; 65 Cal. 360. The 
 necessity must be absolute, not a mere con- 
 venience ; 2 M' Cord, 445; 24 Pick. 102; 8 
 Rich. 158; 69 Me. 323 ; and when it ceases 
 the way ceases with it; 18 Conn. 321; 1 
 Barb. Ch. 353. By reservation expressly 
 made in the grant of the land over which it is 
 claimed ; 10 Mass. 183 ; 26 Conn. 331. By 
 custom : as, where navigators have a right of 
 this nature to tow along the banks of navi- 
 gable rivers with horses ; 3 Term, 253. By 
 acts of legislature ; though a private way 
 cannot be so laid out without the consent of 
 
WAY-BILL 
 
 807 
 
 WEIGHT 
 
 the owner of the land over which it is to 
 pass; IS Conn. 39, 83 ; 4 Hill, 47, 140; 4 
 B. Monr. 57. 
 
 A right of way may be either a right in 
 gross, which is a purely personal right in- 
 communicable to another, or a right appen- 
 dant or annexed to an estate, and which may 
 pass by assignment with the estate to which 
 it is appurtenant; 3 Kent, 420 ; 2Ld. Raym. 
 922 ; 1 Watts, 35 ; 19 Pick. 250. A right 
 of way appurtenant to land is appurtenant to 
 all and every part of the land, and if such 
 land be divided and conveyed in separate 
 parcels, a right of way thereby passes to each 
 of the grantees ; 1 Cush. 285 ; 1 S. & R. 
 229. 
 
 Ways may be abandoned by agreement, 
 by evident intention, or by long non-user. 
 Twenty years' occupation of land adverse to 
 a right of way and inconsistent therewith bars 
 the right; 2 Whart. 123; 16 Barb. 184; 23 
 Pick. 141 ; 5 Gray, 409. 
 
 Ways may be assigned, except when they 
 are in gross, which is a mere personal right, 
 and cannot be granted to another; 19 111. 
 658. 
 
 The owner of a right of way may disturb 
 the soil to pave and repair it. But a way 
 granted for one purpose cannot be used for 
 another; 10 Gray, 61 ; 11 id. 150. 
 
 Lord Coke, adopting the civil law, says 
 there are three kinds of ways : a footway, 
 called iter ; a footway and horseway, called 
 actus ; a cartway, which contains the other 
 two, called via; Co. Litt. 56 a. To which 
 may be added a driftway, a road over which 
 cattle are driven; 1 Taunt. 279; Pothier, 
 PandectiE, lib. 8, t. 3, § 1 ; Dig. 8. 3 ; 1 
 Brown, Civ. Law, 177. 
 
 See 3 Kent, 419 ; Washb. Easem. ; Crabb, 
 R. P. ; Cruise, Dig. ; Highway ; Street ; 
 Thokoughfaee. 
 
 WAY-BILL. A writing in which are set 
 down the names of passengers who are car- 
 ried in a public conveyance, or the description 
 of goods sent with a common carrier by land ; 
 when the goods are carried by water, the in- 
 strument is called a bill of lading. 
 
 ■WAY-GOING CROP. In Pennsyl- 
 vania. By the custom of the country, a 
 tenant for a term certain is entitled, after the 
 expiration of his lease, to enter and lake 
 away the crop of grain which he had put into 
 the ground the preceding fall. This is 
 called the way-going crop ; 5 Binn. 289 ; 2 
 S. & R. 14 ; 1 Penn. 224. See AwAY-Go- 
 ING Crop ; Emblements. 
 
 VTAYS AND MEANS. In legislative 
 assemblies, there is usually appointed a com- 
 mittee whose duties are to inquire into and 
 propose to the house the ways and means to 
 be adopted to raise funds for the use of the 
 government. This body is called the com- 
 mittee of ways and means. 
 
 WEAR. A great dam made across a river, 
 accommodated for the taking of fish or to con- 
 vey a stream to a mill. Jacob. See Dam. 
 
 WED. A covenant or agreement : whence 
 a wedded husband. 
 
 WEEK. Seven days of time. 
 
 The week commences immediately after 
 twelve o'clock on the night between Satur- 
 day and Sunday, and ends at twelve o'clock, 
 seven days of twenty-four houfrs each, there- 
 after. See 4 Pet. 361. 
 
 The first publication of a notice of a sale, 
 under a power contained in a mortgage, 
 which requires the notice to be published 
 " once each week for three successive weeks" 
 need not be made three weeks before the 
 time appointed for the sale ; 117 Mass. 480. 
 See 4 Pet. 361 ; Time. 
 
 WEIGHAGE. In English Law. A 
 duty or toll paid for weighing merchandise : 
 it is called tronage for weighing wool at the 
 king's beam, or pesage for weighing other 
 avoirdupois goods. 2 Chitty, Com. Law, 16. 
 
 WEIGHT. A quality in natural bodies 
 by which they tend towards the centre of the 
 earth. 
 
 Under the police power, weights and measures 
 may be established and dealers compelled to 
 conform to the lixed standards under a penalty ; 
 Cooley,. Const. Lim. 749. 
 
 Under the article Measure, it Is said that by 
 the constitution congress possesses the power " to 
 fix the standard of weights and measures," and 
 that this power has not been exercised. 
 
 The weights now generally used in the United 
 States are the same as those of England ; they 
 are of two kinds. 
 
 AvoiKDUPOis Weight. 
 Mr8t, used in almost all commercial transac- 
 tions, and in the common dealings of life. 
 27JJ grains = 1 dram. 
 16 drams = 1 ounce. 
 16 ounces = 1 pound (lb.). 
 25 or 28 pounds ^ 1 quarter, (qr.). 
 4 quarters = 1 hundredweight (cwt.). 
 20 hundredweight = 1 ton. 
 Second, used for meat and fish. 
 8 pounds = 1 stone. 
 TTiird, used in the wool-trade. 
 
 7 pounds = 1 clove. C/iot. qr. lb. 
 14 pounds = 1 stone. = 14 
 
 2 stones = 1 tod. = 10 
 
 6j tods .= 1 wey. = 12 14 
 
 2 weys = 1 sack. = 31 
 
 13 sacks = 1 last. = 39 
 
 Fourth, used for butter and cheese. 
 
 8 pounds = 1 clove. 
 56 poufads = 1 firkin. 
 
 Trot Weight. 
 
 34 grains = 1 pennyweight. 
 
 20 pennyweights = 1 ounce. 
 
 13 ounces = 1 pound. 
 
 These are the denominations of troy weight 
 when used for weighing gold, silver, and precious 
 stones, except diamonds. Troy weight is also 
 used by apothecaries in compounding medicines; 
 but by them the ounce is divided into eight 
 drams, and the dram into three scruples, so that 
 the latter is equal to twenty grains. For scien- 
 tific purposes (when the metric Bystem is not 
 employed, as it now usually is) , the grain only is 
 used, and sets of weights are used constructed 
 
WEIGHT OF EVIDENCE 
 
 808 
 
 WEST VIRGINIA 
 
 in decimal progression from 10,000 graiBS down- 
 ward to one-hundredth of a grain. The carat 
 used for weighing diamonds is three and one- 
 sixth grains. See Gbamme. 
 
 A short account of the French weights and 
 measures is given under the article Mbasubb. 
 
 WEIGHT OF EVIDENCE. This phrase 
 is used to signify that the proof on one side 
 of a cause is greater than on the other. 
 
 When a verdict has been rendered against 
 the weight of the evidence, the court may, 
 on this ground, grant a new trial ; but the 
 court will exercise this power not merely with 
 a cautious but a strict and sure judgment, be- 
 fore they send the case to a second jury. 
 
 The general rule, under such circumstances, 
 is that the verdict once found shall stand : the 
 setting aside is the exception, and ought to be 
 an exception of rare and almost singular oc- 
 currence. A new trial will be granted on this 
 ground for either party : the evidence, how- 
 ever, is not to be weighed in golden scales ; 3 
 Bingh. N. C. 109 ; Gflp. 856 ; 3 Me. 276 ; 8 
 Pick. 122; 5 Wend. 595; 7 id. 380; 2 Va. 
 Cas. 235. 
 
 WELL. A hole dug in the earth in order 
 to obtain water. 
 
 The owner of the estate has a right to dig 
 in his own ground at such a distance as is per- 
 mitted by law from his neighbor's land : he 
 is not restricted as to the size or depth, and 
 is not liable to any action for rendering the 
 well of his neighbor useless by so doing. 
 Lois des B&t. pt. 1, c. 3, sect. 2, art. 2, § 2. 
 
 See SUBTEKRANEAN WATERS. 
 
 W^ELL KNOW^ING. In Pleading. 
 
 Words used in a declaration when the plain- 
 tiff sues for an injury which is not immediate 
 and with force, and the act or nonfeasance 
 complained of was not prima facie actionable. 
 Not only the injury, but the circumstances 
 under which it was committed, ought to be 
 stated : as, where the injury was done by an 
 animal. In such case the plaintiff, after 
 stating the injury, continues, the defendant, 
 well knowing the mischievous propensity of 
 his dog, permitted him to go at large. See 
 Scienter. 
 
 W^ELSH MORTGAGE. In English 
 Jiavr. A species of security which partakes 
 of the nature of a mortgage, as there is a 
 debt due, and an estate is given a security 
 for the repayment, but differs from ,it in the 
 circumstances that the rents and profits are 
 to be received without account till the prin- 
 cipal money is paid off, and there is no 
 remedy to enforce payment, while the morU 
 gagor has a perpetual power of redemption. 
 It is now rarely used. 
 
 It is a species of vivum vadium. Strictly, how- 
 ever, there is this distinction between a Welsh 
 mortgage and a vivum vadium : in the latter the 
 rents and profits of the estate are applied to the 
 discharge of the principal after paying the inte- 
 rest ; while in the former the rents and profits 
 are received in satisfaction of his interest only. 
 1 Powell, Mortg. 373 o ; 1 Br. & Had. Com. 607; 
 Jones, Mtg. § 1153. 
 
 WERE. The name of a fine among the 
 Saxons imposed upon a murderer. 
 
 The life of every man, not excepting that 
 of the king himself, was estimated at a cer- 
 tain price, which was called the were, or ms- 
 timatio capitis. The amount varied according 
 to the dignity of the person murdered. The 
 price of wounds was also varied according to 
 the nature of the wound, or the member in- 
 jured. 
 
 WERGILD, WEREGILD. In Old 
 English La'w. The price which, in a bar- 
 barous age, a person guilty of homicide or 
 other enormous offence was required to pay, 
 instead of receiving other punishment. 4 
 Bla. Com. 188. 
 
 See, for the etymology of this word, and a 
 tans' which was paid for the murder of the dif- 
 ferent classes of men, Guizot, Essais sur I'His- 
 toire de France, Essai 4Jme, c. 2, § 2. 
 
 WEST SAXON LAGE. The law of 
 
 the West Saxons, which was observed in the 
 counties in the south and west of England, 
 from Kent to Devonshire, in the beginning 
 of the eleventh century ; supposed by Black- 
 stone to have been much the same as the 
 laws of Alfred. 1 Bla. Com. 65.- 
 
 WEST VIRGINIA. The name of one 
 of the United States of America. 
 
 This state was formed in 1861 of the western 
 counties of Virginia, owing to their non-concur- 
 rence in the ordinance of secession passed by the 
 legislature of that state. A constitution was 
 framed by a convention which met at Wheeling 
 on November 26,1861. This was submitted to 
 the people on April 3, 1863, and ratified almost 
 unanimously. The consent of the body recog- 
 nised by the Federal government as the legisla- 
 ture of Virginia was given, and congress then 
 passed an act approved December 31, 1862, pro- 
 viding for the admission of the new state into 
 the Union upon condition of the adoption of an 
 amendment to the constitution providing for 
 emancipation of slaves. This was done, and the 
 state was admitted to the Union. The first con- 
 stitution remained in force until 1872, when the 
 present constitution was framed by a convention 
 which met on January 16, 1872, and completed 
 its labors on April 9 of that year. It was sub- 
 mitted to the people and ratified by them on 
 August 22, 1872. 
 
 The Legislative Power.— The legislative 
 power is vested in a senate and house of dele- 
 gates, their official designation being " the Legis- 
 lature of West Virginia." For the election of sen- 
 ators, the state was divided into twelve districts, 
 with the proviso that this number might be in- 
 creased in proportion to the population after 
 each census taken by the authority of the United 
 States, but could not be dinilnished. Every dis- 
 trict shall elect two senators, but where the 'disr 
 trict is composed of more than one county, both 
 shall not be chosen from the same county. The 
 first house of delegates consisted of sixty-five 
 members, provision being made for an increased 
 number in proportion to the increase of popula- 
 tion. 
 
 The legislature assembles biennially, and not 
 oftener, unless convened by the governor. A ma- 
 jority of the members elected to each house con- 
 stitute a quorum ; but a smaller number may 
 meet and adjourn from day to day, and compel 
 the attendance of members. 
 
WEST VIRGINIA 
 
 809 
 
 WETHER 
 
 The ExEOnxiVE Powek. — The executive 
 power is vested in a Governor, Secretary of State, 
 State Superintendent of Free Schools, Auditor, 
 Treasurer, and Attorney- General, who is ex officio 
 Reporter of the court of appeals. Their terms of 
 office are respectively for four years, and com- 
 mence on the fourth day of March next after 
 the election. Excepting the attorney-general 
 they are required to reside at the seat of govern- 
 ment during the continuance of their terms of 
 office. 
 
 The chief executive power is vested in the 
 governor. He is ineligible for re-election to the 
 succeeding term of his office. It is his duty to 
 see that the laws are faithfully executed. He 
 may, on extraordinary occasions, convene the 
 legislature at his own instance, but when so 
 convened, it shall enter upon no business other 
 than that stated in the proclamation conveningit. 
 
 He has the power of appointment to fill offices, 
 by and with the advice and consent of the sen- 
 ate ; to fill vacancies during recesses of the senate ; 
 to remove appointees for incompetency, neglect 
 of duty, gross immorality, or malfeasance in of- 
 fice ; to remit fines and penalties ; to commute 
 capital punishment ; reprieve or pardon offen- 
 ders after conviction, excepting where the prose- 
 cution has been carried on by the house of dele- 
 gates. He is commander-in-chief of the military 
 forces of the state, except when they are called 
 into the actual service of the United States, and 
 may call out the same to execute the laws, sup- 
 press insurrection, and repel invasion. In case 
 of the governor's death, resignation, or inability 
 to serve, the president of the senate shall assume 
 his office until the vacancy is filled, or the disa- 
 bility removed. And in case of the inability of 
 the president of the senate, the duty shall de- 
 volve upon the speaker of the house of delegates. 
 In all other cases where there is no one to act as 
 governor, one shall be chosen by the joint vote 
 of the legislature. 
 
 The Judioiakt Department. — The judiciary 
 power is vested in a supreme court of appeals, in 
 circuit courts and the judges thereof, in county 
 and corporation courts, and in justices of the 
 peace. 
 
 The supreme court of appeals consists of four 
 judges, any three of whom constitute a quorum. 
 They are elected by the people and hold office 
 for twelve years. This court has original juris- 
 diction in cases of habeas corpus, mandamus, and 
 prohibition ; and appellate jurisdiction in civil 
 cases, where the matter in controversy exclusive 
 of costs is of greater value than one hundred 
 dollars ; in controversies concerning the title or 
 boundaries of land, the probate of wills, the ap- 
 pointment or qualification of a personal repre- 
 sentative, guardian, committee, or curator ; or 
 concerning a mill, roadway, ferry, or landing ; 
 or the right of a corporation or county to levy 
 tolls or taxes ; and, also, in cases of quo war- 
 ranto, habeas corpus, mandamus, and prohibition, 
 and in cases involving freedom, or the constitu- 
 tionality of a law ; also in criminal cases where 
 there has been a conviction of felony, or misde- 
 meanor in a circuit court, and where a conviction 
 has been had in any inferior court and affirmed 
 in a circuit court. 
 
 At least two terms of the court must be held 
 annually. 
 
 Circuit Courts.— The state is divided into nine 
 circuits, and for each circuit a judge is elected 
 by the voters thereof, who holds his office for 
 eight years. The circuit courts have the super- 
 vision of all proceedings before the county courts, 
 and other inferior tribunals, by mandamus, prohi- 
 bition, or certiorari. They have, except in cases 
 
 confined by the constitution exclusively to some 
 other tribunal, original and general jurisdiction 
 of all matters of law where the amount in con- 
 troversy, exclusive of interest, exceeds fifty dol- 
 lars ; in cases of quo warranto, habeas corpus^ 
 mandamus, or prohibition ; in all cases in equity, 
 and of all felonies and misdemeanors. They 
 have appellate jurisdiction, upon petition, and 
 assignment of error, in all cases of judgments, 
 decrees, and final orders rendered by the county 
 court, and such other inferior courts as may be 
 appointed by law, where the matter in contro- 
 versy, exclusive of costs, is of greater value than 
 twenty dollars ; in controversies respecting the 
 title or boundaries of land, the probate of wills, 
 the appointment or qualification of a personal 
 representative, guardian, committee, or curator, 
 or concerning a mill, roadway, ferry, or landing, 
 or the right of a corporation or county to levy tolls 
 or taxes, and also in cases of habeas corpus, quo 
 warranto, mandamus, prohibition, and certiorari, 
 and in cases involving freedom, or the constitu- 
 tionality of a law ; and in all cases of conviction 
 under criminal prosecutions in said court. It 
 has such original jurisdiction as may be pre- 
 scribed by law. 
 
 County Courts. — There is in each county of the 
 state a county court, composed of a president 
 and two justices of the peace ; the president of 
 the court is elected by the voters of the county, 
 and holds his office for four years. Whenever he 
 is unable to attend as president of the court, any 
 justice may be added to make the court,'who, in 
 conjunction with the other two, may designate 
 one of their own number to preside in his ab- 
 sence. 
 
 The Justices of the Peace are classified by law 
 for the performance of their duties in court. 
 
 The county court has original jurisdiction in 
 all actions at law where the amount in contro- 
 versy exceeds twenty dollars ; and also in all 
 cases of habeas corpus, quo warranto, mandamus, 
 prohibition, and certiorari, and in all suits in 
 equity, in all matters of probate, the appointment 
 and qualification of personal representatives, 
 guardians, committees, and curators, and the 
 settlement of their accounts, and in all matters 
 relating to apprentices, and of all criminal cases, 
 under the grade of felony, except as above pro- 
 vided. It has the custody, through its clerks; 
 of all writs, deed^, and other papers presented 
 for probate or record in the county. It has also 
 the superintendence and administration of the 
 internal police and fiscal afiairs of the county. 
 It has jurisdiction of all appeals from the judg- 
 ment of the justices, and its decision is final upon 
 such appeals, except such as involve the title, 
 right of possession, or boundaries of lands, the 
 freedom of a person, the validity of a law, or an 
 ordinance of any corporation, or the right of a 
 corporation to levy tolls or taxes. 
 
 Upon the application of any county the legis- 
 lature shall reform, modify, or alter th^county 
 court, established by the constitution, m such 
 county, and in lieu thereof, with the assent of a 
 majority of the voters of the county at an elec- 
 tion held for that purpose, create another court, 
 or other tribunal, as well for judicial as for po- 
 lice and fiscal purposes, either separate or com- 
 bined, which shall conform to the wishes of the 
 county making the application, but with the 
 same power and jurisdiction herein conferred on 
 the county court, and with compensation to be 
 made from the county treasury ; Const, art. VIII. 
 sec. 81. 
 
 WETHER. A castrated ram, at least 
 one year old : in an indictment it may be 
 called a sheep ; 4 C. & P. 216. 
 
WHALER . 
 
 810 
 
 WHARFAGE 
 
 WHALSR. A vessel employed in the 
 whale fishery. 
 
 It is usual for the owner of the vessel, the 
 captain, and crew, to divide the profits in just 
 proportions, under an agreement similar to 
 the .contract Di Colonna. _ 
 
 WHARF. A space of ground artificially 
 prepared for the reception of merchandise 
 from a ship or vessel, so as to promote the 
 convenient loading and discharge of such 
 vessel. 
 
 At common law, the soil of all tide- waters 
 below high-water mark being vested in the 
 crown as the conservator of the public rights 
 of navigation and fishing, the erection of a 
 wharf thereon without the consent of the 
 crown is an encroachment upon the royal do- 
 main of that kind which has been denomin- 
 ated a purpresture, and, as such, may be 
 either abated, or, if more beneficial to the 
 crown, seized and arrested, unless indeed it 
 be likewise a public nuisance; Ang. Tide- 
 Wat. 196; 10 Price, 350, 378 ; 18Ves.214; 
 2 Story, Eq. Jur. § 920 et seq. But if it ob- 
 struct navigation to such a degree as to be a 
 public nuisance, neither the crown nor its 
 grantee has authority to erect or maintain it 
 without the sanction of an act of parliament ; 
 8 Ad. & E. 336 ; 4 B. & C. 598 ; 6 M. & 
 W. 327; 11 Ad. & E. 223; Phear, Rights 
 of Water, 54. It is not every wharf erected 
 in navigable water, however, which is a nui- 
 sance, for it may be a benefit rather than an 
 injury to the navigation ; and it isforthejury 
 to determine, in each particular case, whether 
 such a wharf is a nuisance or not, the question 
 being whether it occasions any substantial hin- 
 drance tolihe navigation of the river by ves- 
 sels of any description, and not whether it 
 causes a benefit to navigation in general ; 2 
 Stark. 511; 1 C. & Itf. 496; 4 Ad. & E. 
 384 ; 6 id. 143 ; 15 Q. B. 276. 
 
 In this country, the several states, being 
 the owners of the soil of the tide- waters with- 
 in their respective territories, may by law au- 
 thorize and regulate the erection of wharves 
 thereon, at least until the general government 
 shall have legislated upon the subject ; 4 Ga. 
 26 ; 7 Gush. 53 ; 2 H. & M'H. 244 ; 11 Gill 
 & J. 351 ; and may grant to a municipal cor- 
 poration the exclusive righ't to make and con- 
 trol wharves on the banks of a navigable 
 river ; 95 U. S. 80. In MassachussettS and 
 Maine,'"by a colonial ordinance, the provisions 
 of which are still recognized as the law of 
 those states, the property of the shores and 
 flats between high and low water mark, for 
 one hundred rods, subject to the rights of the 
 public, was transferred to the owners of the 
 upland, who may, therefore, wharf out to 
 that distance, if by so doing they do not un- 
 reasonably interrupt navigation ; 1 Gush. 813, 
 395; 13 Pick. 255 ; \lid. 357 ; 36 Me. 16; 
 89 id. 451; 42 id. 9. If without legislative 
 sanction they extend a wharf beyond that 
 distance, such extension is prima facie a 
 nuisance, and will be abated as such, unless it 
 can be shown that it is no material detriment 
 
 to navigation ; 3 Am. Jur. 185 ; Ang. Tide- 
 Wat. 206; 20 Pick. 186 ; 10 R.I. 477. In 
 Connecticut, and probably in other states, by 
 the law of the state founded upon immemorial 
 usage, the proprietor of the upland hag the 
 right to wharf out to the channel, — subject to 
 the rights of the public ; 9 Conn. 38; 25 id. 
 345; 16 Pet. 369 ; 1 Dutch. 525 ; 6 Ind. 
 223. See 46 Wise. 237 ; 27 Gratt. 430 ; 23 
 Minn. 18. In Pennsylvania, the riparian 
 proprietor is held to be the owner of the soil 
 between high and low water mark, and to be 
 entitled to erect wharves thereon ; IWhart. 
 131 ; 2 id. 539 ; but not without express au- 
 thority from the state ; 61 Penn. 21. In the 
 same state it has been held that wharves are 
 not the private property of him who erects 
 them, and persons who go upon and fasten 
 vessels to them are not trespassers : 39 Leg. 
 Int. 32 ; and that in an action for the use and 
 occupation of a wharf, a contract express or 
 implied must be proved ; 28 Am. L. Reg. 
 145. 
 
 In the great navigable fresh- water rivers of 
 this country, the riparian proprietors, being 
 the owners of the bed of the stream, have 
 undoubtedly the right to wharf out to the 
 channel — subject only to the condition that 
 they do not materially interrupt the naviga- 
 tion. See, generally, 2 Sandf. 258 ; 3 id. 
 487; 3 How. 212; 1 Edw. Ch. 579; 2 id. 
 220 ; 1 Sandf. Ch. 214 ; 1 Gill & J. 249 ; 11 
 id. 351 ; 8 Term, 606 ; 28 Am. L. Reg. 145, 
 n. ; RiPARiAU Proprietors ; Rivers. 
 
 ■WHARFAGE. The money paid for 
 landing goods upon, or loading them from, a 
 wharf. Dane, Abr. Index; 4 Cal. 41. 
 
 Wharfingers in London are not entitled to 
 wharfage for goods unloaded into lighters out 
 of barges fastened to their wharves ; 3 Burr. 
 1409 ; 1 W. Blackst. 243. And see 5 Sandf. 
 48. It has been held that, owing to the in- 
 terest which the public have in the matter, 
 rates of wharfage may be regulated by stat- 
 ute; 11 Ala. N. s. 586. And see 5 Hill, 71 ; 
 7 id, 429; 21 Wend. N. Y. 110; 1 E. D. 
 Smith, N. Y. 80, 294; 2 Rich. 370; 8 B. & 
 C. 42 ; 2 Mann. &. R. 107. 
 
 Claims for wharfage are cognizable in admi- 
 ralty, and, if the vessel is a foreign one or from 
 anotlier state, the claim of the wharfinger is a 
 maritime lien against the vessel, which may be 
 enforced by a proceeding i« rem, or by a libel in 
 personam against the owner of such vessel ; 95 
 U. 8. 18. A state statute conferring a remedy 
 for such claims by proceedings in rem is void ; 
 43 N. T. 554. But as to domestic vessels, the 
 lien of the wharfinger is only enforceable as a 
 comnwn law lien; 1 Newb. 553; 9 Phila. 364. 
 In the absence of any agreement between the 
 parties, reasonable wharfage will be allowed ; 95 
 U. S. 68. A lease giving the lessee ' ' the sole and 
 exclusive right to use the public wharf for his 
 ferry boat," does not authorize the collection of 
 toll for wharfage ; 1 Newb. 541. A municipal 
 corporation cannot exact a charge upon vessels 
 for entering or leaving a port or remainiBg 
 therein and using the wharves or landings, for 
 the general revenue of such corporation; 20 
 Wall. 377 ; 95-U. 8. 80; but It may collect from 
 parties using its wharves, such reasonable fee as 
 
WHARFINGER 
 
 811 
 
 WHIPPING 
 
 will fairly remunerate it for the use of Its pro- 
 perty ; 100 U. S. 433 ; id. 430. That such fees 
 are regulated by the tonnage of the vessel will 
 not constitute them a tonnage tax under the con- 
 stitution, art. 1, paragraph 3, § 10; 20 Gratt. 
 419. See 9 Fed. Rep. 679 ; 25 Alb. L. J. 254. 
 
 WHARFINGER. One who owns or 
 keeps a wharf for the purpose of receiving 
 and shipping merchandise to or from it for 
 hire. 
 
 A wharfinger stands in the situation of an 
 ordinary bailee for hire, and therefore, like a 
 warehouseman, he is responsible for ordinary 
 neglect, and is required to take ordinary care 
 of the goods intrusted to him as such ; 2 
 Barb. 328 ; 4 Ind. 368 ; 10 Vt. 56 ; 4 Term, 
 581 ; 2 Stark. 400. The wharfinger is not 
 an insurer of the safety of his dock, but he 
 must use reasonable care to keep it in safe 
 condition, for vessels which he invites to enter 
 it ; 127 Mass. 236 ; 7 Blatch. 290; 15 Wall. 
 649. He is not, like an innkeeper or carrier, 
 to be considered an insurer unless he super- 
 add the character of carrier to that of wharf- 
 inger ; 1 Stark. 72 ; 4 Camp. 225 ; 5 Burr. 
 2825 ; 12 Johns. 232 ; 7 Cow. 497 ; 5 Mo. 97. 
 The responsibility of a wharfinger begins 
 when he acquires and ends when he ceases to 
 have the custody of the goods in that capacity. 
 
 When he begins and ceases to have such 
 custody depends, generally, upon the usages 
 of trade and of the business. When goods 
 are delivered at a wharf, and the wharfinger 
 has agreed, expressly or by implication, to 
 take the custody of them, his responsibility 
 commences ; but a mere delivery at the wharf, 
 without such assent, does not make him lia^ 
 Me; 3 Camp. 414; 4 id. 72; 6 Cow. 757; 
 10 Vt. 56 ; 2 Stark. 400 ; 14 M. & W. 28. 
 When goods are in the wharfinger's possession 
 to be sent on board of a vessel for a voyage, 
 as soon as he delivers the possession and the 
 care of them to the proper officers of the ves- 
 sel, although they are not actually removed, 
 he is, by the usages of trade, deemed exon- 
 erated from any further responsibility ; 5 Esp. 
 41 ; Story, Bailm. § 453 ; Dig. 9. 4. 3 ; 1 M. 
 & W. 174; 16 id. 119; 1 Gale, 420. The 
 wharfinger does not, however, discharge his 
 duty by delivering them to one of the crew, 
 but'should deliver them to the captain of the 
 vessel, or some other person in authority on 
 board of it; 1 C. & P. 638. And see 10 
 Bingh. 246 ; 2 C. & M. 531 ; 7 Scott, 876 ; 4 
 Q. B. 511. 
 
 A wharfinger has a general lien upon all 
 goods in his possession for the balance of his 
 account ; 1 Esp. 109 ; 3 id. 81 ; 6 East, 
 519; 7 id. 224; 4 B. & Aid. 50; 12 Ad. 
 & E. 639; 7 B. & C. 212; and in re- 
 spect to the right of lien there is no distinction 
 between the wharfinger and the warehouse- 
 man ; 23 Am. L. R. 465, 468. A wharf- 
 inger has equally a lien on a vessel for wharf- 
 age ; Ware, 354 ; Gilp. 101 ; 1 Newb. 553. 
 See Wharfage. 
 
 WHEEL. The punishment of the wheel 
 was formerly to put a criminal on a wheel, 
 
 and then to break his bones until he expired. 
 This barbarous punishment was never used 
 in the United States; and it has been abo- 
 lished in every civilized country. 
 
 WHELPS. The young of certain ani- 
 mals of a base nature or ferce naturm. 
 
 It is a rule that when no larceny can be 
 committed of any creatures of a base nature 
 which are ferce naturce, though tame and re- 
 claimed, it cannot be committed of the young 
 of such creatures in the nest, kennel, or den ; 
 Co. 3d Inst. 109 ; 1 Russ. Cr. 153. 
 
 The owner of the land is, however, con- 
 sidered to have a qualified property in such 
 animals, ralione impotentioe ; 2 Bla. Com. 
 394. 
 
 WHEN. At which time. 
 
 In wills, standing, by itself unqualified and 
 unexplained, this is a word of condition de- 
 noting the time at which the gift is to com- 
 mence ; 6 Ves. Jr. 243; 10 Co. 50 ; 16 C. 
 B. 59. The context of a will may show that 
 the word when is to.be applied to the posses- 
 sion only, not to the vesting of a legacy ; but 
 to justify this construction there must be cir- 
 cumstances, or other expressions in the will, 
 showing such to have been the testator's in- 
 tent ; 7 Ves. 422; 11 id. 489; Coop. 145; 
 3 Bro. C. C. 471. See 2 Jar. Wills, 417-421, 
 notes. For the effect of the word when in 
 contracts and in wills in the French law, see 
 6 TouUier, n. 520. See Devise ; Time. 
 
 WHEN AND WHERE. Technical 
 words in pleading, formerly necessary in mak- 
 ing /uZZ defence to certain actions. See I 
 Chit. PI. *445 ; Defence. 
 
 WBEREAS. This word implies a re- 
 cital, and, in general, cannot be used in the 
 direct and positive averment of a fact in a 
 declaration or plea. Those facts which are 
 directly denied by the terms of the general 
 issue, or which may, by the established usage 
 of pleading, be specially traversed, must be 
 averred in positive and direct terms ; but 
 facts, however material, which are not di- 
 rectly denied by the terms of the general 
 issue, though liable to be contested under it, 
 and which, according to the usage of pleading, 
 cannot be specially traversed, may be alleged 
 in the declaration by way of recital, under a 
 whereas; Gould, PI. c. 43, § 42, c. 3, §47; 
 "Bacon, Abr. Pleas, etc. (B 5, 4); 2 Chitty^ 
 PI. 151, 178, 191. ' 
 
 WHIPPING. The infliction of stripes. 
 
 This mode of punishment, which is still 
 practised in some of the states, has yielded in 
 most of the states to the penitentiary system. 
 
 Whipping has been held to be punishment 
 worse than death; 7 Tex. 69; but see 2 
 Rich. 418. 
 
 .The punishment of whipping, so far as the 
 same was provided by the laws of the United 
 States, was abolished by the act of congress 
 of February 28, 1839, s. 5. See 1 Chitty, 
 Crim. Law, 796 ; Dane, Abr. Index. See 
 Correction. 
 
 This punishment has never been altogether 
 
WHITE BONNET 
 
 812 
 
 WIFE 
 
 abolished in England. At common law it 
 ■was inflicted on inferior persons for petty lar- 
 ceny, etc., but by the usage of the star 
 chamber, never on a gentleman. By 1 Geo. 
 IV. c. 57, it was abolished as to females. By 
 5 & 6 Vict, striking or firing at the present 
 queen is punishable with whipping thrice or 
 fewer times. The Criminal Law Consolida^ 
 tion Acts of 1861 authorize the whipping 
 of males below 16 who have been convicted 
 of various offences ; but it must be done in 
 private and only once, and the court must 
 specify the number of strokes and the instru- 
 ment. By 25 Vict. c. 1 8, for boys under 14 
 the number shall not exceed twelve with a 
 birch rod. For the offences of robbery ac- 
 companied with personal violence, and of at- 
 tempting by any means to strangle or to 
 render insensible any one with intent to en- 
 able himself or others to commit an indictable 
 offence, in addition to imprisonment, the 24 & 
 25 Vict. c. 100, and 26 & 27 Viet. c. 96, di- 
 rect that the offender, if a male, be once, 
 twice, or thrice privately whipped. See 
 Whart. Lex. 
 
 >RrHITE BONNET. In Sootoh Law. 
 
 A fictitious bidder at an auction. Where 
 there is no upset price, and the auction is not 
 stated to be without reserve, there is no au- 
 thority for saying that employment of such 
 person is illegal. Burton, Law of Scotl. 
 362. 
 
 "WHITE RENTS. In English Law. 
 Rents paid in silver, and called white rents, or 
 redditus albi, to distinguish them from other 
 rents which were not paid in money. Co. 2d 
 Inst. 19'. See Alba Fiema. 
 
 >A?'HOLE BLOOD. Being related by 
 both the father and mother's side : this phrase 
 is used in contradistinction to half blood, 
 which is relation only on one side. See 
 Blood. 
 
 'WHOLESALE. To sell by wholesale is 
 to sell by large parcels, generally in original 
 packages, and not by retail. See Words. 
 
 ■WIDOW. An unmarried woman whose 
 husband is dead. 
 
 In legal writings, widow is an addition 
 given to a woman who is unmarried and 
 whose husband is dead. The addition of 
 spinster is given to a woman who never was 
 married. Lovelace, Wills, 269. See Addi- 
 tion. As to the rights of a, widow, see 
 DowEK ; Quarantine. 
 
 ■WIDOW BENCH. The share of her 
 husband's estate which a widow is allowed be- 
 sides her jointure. Whart. Lex. 
 
 ■WIDOW'S CHAMBER. In London, 
 the apparel of a widow and the furniture of 
 her chamber, left by her deceased husband, is 
 so called, and the widow is entitled to it. 2 
 Bla. Com. 518. 
 
 ■WIDOWER. A man whose wife is dead. 
 A widower has a right to administer to his 
 ■wife's separate estijte, and, as her adminis- 
 
 trator, to collect debts due to her, generally 
 for his own use. 
 
 WIDOWHOOD. The state of a man 
 whose wife is dead, or of a woman whose 
 husband is dead. In general, there is no law 
 to regulate the time. during which a man must 
 remain a widower, or a woman a widow, be- 
 fore they marry a second time. The term 
 widowhood is mostly applied to the state or 
 condition of a widow. 
 
 WIPE. _ A woman who has a husband. 
 
 The relation confers upon her certain rights, 
 imposes on her certain obligations, and de- 
 prives her of certain powers and privileges. 
 
 At Common Law. A wife has a right to 
 share the bed and board of her husband. She 
 can call upon him to provide her with necessary 
 food and clothing according to her position in 
 life, and if he neglects or refuses to do it she 
 can procure them on his account. See Ne- 
 cessaries. She is entitled, on his death, 
 to dower in all the real estate of which he is 
 seised at any time during coverture. See 
 DowEK. 
 
 As to her contracts made before coverture 
 and her liability for torts while married, see 
 Husband. 
 
 She is bound to follow him wherever in 
 the country he may choose to go and establish 
 himself, provided it is not, for other causes, 
 unreasonable. She is under obligation to be 
 faithful in chastity to her marriage vow : 5 
 Mart. La. n. s. 50. See Divorce ; Adul- 
 tery. 
 
 The wife cannot bind herself by contract, 
 express or implied, by parol or under seal. 
 
 A wife can gain rights of a political cha- 
 racter : these rights stand on the general 
 principles of the law of nations ; 2 Hard. 
 Ky. 5 ; 3 Pet. 242. When she commits a 
 crime in the presence of her husband, unless 
 it is of a very aggravated character, she is 
 presumed to act by his coercion, and, unless 
 the contrary is proved, she is irresponsible. 
 Under other circumstances she is liable, 
 criminally, as if she were a feme sole. See 
 Will ; Coercion ; Duress. 
 
 As to the control of the husband over her 
 estate, see Husband. 
 
 As to the property of a ■wife in trust for her 
 sole and separate use, see Separate Estate. 
 
 As to a wife's equity to a settlement, see 
 that title. 
 
 Settlements. — As a general rule, a contract 
 made between parties who subsequently inter- 
 marry is, both at law and in equity, extin- 
 guished by the marriage ; 1 Bla. Com. 442 ; 
 but when articles are entered into or a settle- 
 ment is executed whereby the wife is to have 
 a certain provision in lieu of her fortune, the 
 husband becomes virtually a purchaser of her 
 fortune, and she becomes entitled to her pro- 
 vision, though there may be no intervention 
 of trustees, and equity will enforce the con- 
 tract; 2 Ves. Sen. 675; Husbands on Mar- 
 ried Women, 125 ; Marriage Settlement. 
 
 Under Statutes. A great change in favor 
 
WIFE 
 
 813 
 
 WIFE 
 
 of the wife has been produced by recent stat- 
 utes in a majority of the United States. 
 
 In Alabama, all property of the wife, held by 
 her previous to marriage, or to which she may 
 become entitled in any manner after marriage, 
 becomes her separate estate, and not subject to 
 the debts of the husband ; it is vested in the 
 husband as trustee, but he is not answerable for 
 the rents and profits. Her right to the rents 
 and profits is not liable to be taken in execution 
 for his debts; Ala. Code, § 2704 «« seq. 
 
 In Ariiona, all the property Of' the wife held 
 by her previous to marriage, and that acquired 
 subsequent thereto, either by gift, bequest, de- 
 vise, or descent, becomes her separate property. 
 She may sue and be sued concerning her sepa- 
 rate property as if unmarried. An inventory of 
 her property filed and recorded in the recorder's 
 office of the county wherein she resides, is no- 
 tice of her title; Com. Laws, §§ 1969-1971. 
 
 In Arkansas, the property of a wife, whether 
 real or personal, or whether acquired before or 
 after marriage, in her own right, cannot be sold 
 to pay the debts of the husband. In accord- 
 ance with art. xiv. sec. 8 of the constitution, an 
 act has been passed providing a time and mode 
 of scheduling the separate property of married 
 women. Unless this is complied with, the bur- 
 den of proof is on the wife to show her owner- 
 ship ; Acts 1875, p. 173. 
 
 In Califorma, all property, both real and per- 
 sonal, owned by the wife before marriage,and that 
 acquired aftei' marriage by gift, bequest, devise, 
 or descent, becomes her separate property ; and 
 all property, both real and personal, owned by 
 the husband before marriage, or acquired by him 
 afterwards by gift, bequest, devise, or descent, 
 becomes his separate property; Cal. Code, 
 8163. 
 
 All other property acquired during coverture 
 by either husband or wife becomes the common 
 property of both ; and the rents and profits of 
 the same are the common property of both ; 
 Cal. Code, 8164. 
 
 In Colorado, the wife's separate property ac- 
 quired by her, or left to her by will, either before 
 or after her marriage, is not liable for her hus- 
 band's debts. She may transact any business 
 and give notes in settlement of her debts the 
 same as if she were sole, and bind her separate 
 estate both real and personal. She may sue and 
 be sued without Joining her husband's name. 
 
 In Connecticut, all personal property of the 
 wife owned by the wife before marriage, and all 
 that accrues during marriage to her by gift or 
 bequest, or by distribution to her as heir at law, 
 or that accrues to her by reason of patent-rights, 
 copy-right, or pensions issued on her account, 
 vests in the husband as trustee for the wife. 
 
 The husband is entitled, however, during the 
 coverture to take and use the rents, profits, and 
 interests ; but such rents, profits, and interests 
 are not liable to be taken for his debts, except 
 for debts contracted for the support of the wife 
 and her children, arising after the vesting of the 
 title in the husband. Eeal estate conveyed to 
 the wife during coverture in consideration of her 
 personal services Is held by her as her separate 
 
 The' income of the wife's real estate, when 
 vested in her name or that of a trustee for her, 
 continues to be her property, and is not liable to 
 be taken for the husband's debts . 
 
 Where the wife acquires personal property 
 while absent from her husband by his abandon- 
 ment or in consequence of his abuse, it is held by 
 her to her sole and separate use. Other statutes 
 have been passed to secure to the wife the enjoy- 
 ment of her property ; Conn. Gen. Stat. 186. 
 
 In Dakota, the wife owns, in her own right, all 
 property, whether real or personal, which she 
 has acquired by descent, gift, or purchase, and 
 may manage, sell, convey, and devise the same to 
 the same extent and in the same manner as if she 
 were unmarried. She may make contracts and 
 incur liabilities which will be enforced by or - 
 against her to the same extent and in the same 
 manner as if she were unmarried. Her sepa- 
 rate property is not liable for her husband's debts, 
 but is liable for her own whether contracted be- 
 fore or after marriage ; C. C. §§ 7.5-85. 
 
 In Delaware, the real and personal property of 
 the wife, whose marriage has taken place since 
 April 9, 1873, or that which she may acquire by 
 gift, grant, devise, or bequest, from any one 
 other than her husband, is her sole and separate 
 property, free from her husband's control or 
 debts. She may sue and be sued in respect to 
 her own property, as if unmarried, and may 
 make any contracts necessary thereto ; 14 Laws 
 of Del. ch. 550. 
 
 In the District of Columbia, the real and per- 
 sonal property of the wife, acquired before or 
 after marriage, otherwise than by gift or con- 
 veyance from her husband, is her sole and sepa- 
 rate property, and is not liable for her husband's 
 debts, and she may convey, devise, and bequeath 
 it the same as if she were unmarried. She may 
 contract, sue and be sued in respect to her 
 separate estate, as if she were unmarried ; R. 
 S. of D. C. § 737. 
 
 In Florida, the constitution provides that all 
 property, both real and personal, of the wife, 
 owned by her before marriage, or acquired after- 
 wards by gift, devise, descent, or purchase, shall 
 be her separate property, and not liable for the 
 debts of her husband ; art. iv. § 36 ; and it is 
 enacted that when any female, a citizen of this 
 state, shall marry, or when any female shall 
 marry a citizen of this state, the female being 
 seised or possessed of real or personal property, 
 her title to the same shall continue separate, in- 
 dependent, and beyond the control of her hus- 
 band, notwithstanding her coverture, and shall 
 not be taken in execution for his debts : pro- 
 vided, however, that the property of the female 
 remain in the care and management of her hus- 
 band. 
 
 Married women may become seised or pos- 
 sessed of real and personal property, during 
 coverture, by bequest, devise, gift, purchase, or 
 distribution, subject, however, to certain re- 
 strictions, limitations, and provisions contained 
 in the foregoing section ; Bush, Dig. 580. 
 
 In Georgia, all the wife's property at the time 
 of her marriage remains her own, as well as 
 that inherited or acquired by her during cover- 
 ture, and is not liable for the payment of any 
 debt, default, or contract of her husband. 
 
 In Idaho, the property of the wife, both real 
 and personal, owned before marriage, or ac- 
 quired afterwards, either by gift, devise, be- 
 quest, or descent, is her separate property. The 
 husband has the management and control of it 
 during the marriage, but cannot sell or incum- 
 ber it, except by a deed joined in by the wife with 
 separate acknowledgment. All property ac- 
 quired either by husband or wife, except such 
 as may be acquired by gift, bequest, devise, or 
 descent, is common property, of which the hus- 
 band has entire control, with power of dis- 
 position. The wife may by contract bind her 
 separate estate. 
 
 In Illinois, the real and personal property of 
 the wife, acquired by descent, gift, or purchase, 
 is her own, and she may manage, sell, and 
 convey the same in the same manner as her 
 husband. She may sue and be sued; but she 
 
WIPE 
 
 814 
 
 WIFE 
 
 cannot enter into a copartnership wltliout the 
 consent of her husband. She is not liable for 
 her husband's debts, but the property of both 
 husband and wife is liable for expenses of the 
 family and the education of the children ; E. S. 
 591. 
 
 In Indiana, the wife holds her real and per- 
 sonal property and all profits therefrom as her 
 separate property, and free from liability for 
 the husband's debts; she may sell her personal 
 property without his consent, but he must join 
 In any deed or incumbrance of her real estate. 
 
 In Iowa, a wife may own, in her own right, 
 both real and personal property acquired by de- 
 scent, gift, or purchase, and manage, sell, con- 
 vey, and devise the same by will to the same ex- 
 tent and in the same manner that the husband 
 can property belonging to him. She may re- 
 ceive and hold the wages of her personal labor, 
 and maintain an action therefor in her own 
 name. She is not liable for the debts of her 
 husband. She may make contracts, and the 
 same may be enforced by or against her to the 
 same extent and in the same manner as. if she 
 were unmarried. 
 
 In Kansas, the property real or personal owned 
 by the wife at the time of her marriage, and the 
 rents, issues, profits, or proceeds thereof, and 
 any real, personal, or mixed property which 
 shall come to her by descent, devise, or bequest, 
 or the gift of any person except her husband, 
 shall remain her sole and separate property, not- 
 withstanding her marriage, and is not subject 
 to the disposal of the husband nor liable for his 
 debts ; Dass. Comp. Laws, § 3136. 
 
 In Kentucky, the wife's separate estate, whether 
 acquired before or after marriage, is not liable 
 for her husband's debts, but is liable for her 
 debts contracted before marriage, and for such 
 debts contracted thereafter as are for necessaries 
 for herself or any member of her family, includ- 
 ing her husband, to be evidenced by writing 
 signed by her; Gen. Stat. ch. 53, art. II. § 3. 
 
 In LcmUiana, the wife's separate property can- 
 not be sold by her husband, and she may ad- 
 minister it herself unless there is an antenuptial 
 contract to the contrary. All property acquired 
 during marriage by either the husband or the 
 wife, whether from the earnings of their sepfi- 
 rate labor or the revenues of property, enters 
 into the community, and is equally divided be- 
 tweet^ them. A married woman cannot bind 
 herself or her property for her husband's debts ; 
 Code, art. 1786. 
 
 In Maine, a married woman of any age may 
 own, in her own right, real and personal estate 
 acquired by descent, gift, or purchase, and may 
 manage, sell, convey, and devise the same by 
 will, as if sole, and without the joinder or assent 
 of her husband ; but real estate directly or in- 
 directly conveyed to her by her husband or paid 
 for by him, or given or devised to her by his 
 relatives, cannot be conveyed by her without the 
 joinder of her husband in such conveyance ; Eev. 
 Stat. 1871, c. 61. 
 
 In Maryland, the property real and personal 
 of the wife is not liable for the debts of her 
 husband, but is liable for her own debts. She 
 may acquire, hold, and manage such property 
 without the intervention of a trustee ; Rev. Code, 
 art. 51. Her husband must join her in any deed 
 of conveyance ; and she may join with him in a 
 suit on a joint obligation ; id. 
 
 In Massachusetts, the real and personal pro- 
 perty of the wife remains her separate property. 
 She may sue and be sued, manage and dispose 
 of real and personal property ; may contract 
 and execute agreements as if she were sole. She 
 may carry on business on her separate account, 
 
 under certain regulations as to recording, other- 
 wise her property employed in the business will 
 be liable for her husband's debts ; Stat. 1881, ch. 
 64. 
 
 In Michigan, both the real and personal pro- 
 perty of the wife, whether acquired before or 
 after marriage, continues to be her sole property, 
 the same as if she were unmarried, and is not 
 liable for any of her husband's debts, and may 
 be sold, conveyed, or incumbered by her the 
 same as if she were a feme sole. 
 
 In Minnesota, the real and personal property 
 of the wife continues to be her separate property 
 during coverture, and she may receive, hold, 
 and enjoy property of every description free from 
 the control of her husband, and from any lia- 
 bility for his debts. Contracts between husband 
 and wife, or powers of attorney from one to the 
 other relating to real estate of either, are void. 
 In relation to all other subjects, either may be 
 the agent of the other, or contract the one with 
 the other. The wife may sue or be sued without 
 joining her husband ; Gen. Stat. 1878, ch. 66, § 39. 
 
 In Mississippi, t\iR ■wife's property of all kinds, 
 whether owned at the time ot her marriage or 
 subsequently acquired, may be held by her free 
 from any right or interest of the husband, or 
 any liability for him. The income accruing from 
 her property and the earnings of her personal 
 labor are her own. She may make contracts 
 relating to her separate estate, and may mort- 
 gage it to secure her husband's debts ; but such 
 mortgage binds only the income, not the corpus 
 of the estate, and is avoided by her death. 
 
 In Missouri, the wife may hold real or personal 
 property without the intervention of a trustee 
 separate and apart from her husband, and free 
 from any liability for his debts. She may bind 
 her estate by contracts in her own name. Pro- 
 perty left her by will cannot be made liable for 
 her husband's debts without her own consent. 
 
 In Montana, the wife may own property ac- 
 quired before or after marriage, and the use, 
 increase, and profits thereof, free from the debts 
 or liabilities of her husband, except for neces- 
 saries for herself and children under eighteen 
 years of age ; but she must claim such property 
 in a list to be recorded with the register of deeds 
 in the county where she resides under certain 
 provisions. 
 
 In Nebraska, the wife's real and personal pro- 
 perty owned at the time of the marriage, toge- 
 ther with the rents, issues, and profits thereof, 
 and any property after acquired, except only by 
 gift of her husband, remains her sole and sepa- 
 rate property, subject to her own disposal, and 
 free from her husband's debts. She may con- 
 tract with reference to her separate estate, sue, 
 and be sued as if she were unmarried ; Gen. Stat. 
 173, §§ 1-7. 
 
 In Nevada, the real and personal property of 
 the wife, whether acquired before or after mar- 
 riage by gift, bequest, devise, or descent, is her 
 separate property ; that acquired after marriage 
 in other way by either husband or wife is com- 
 mon property. The husband has absolute con- 
 trol of the common property during the exist- 
 ence of the marriage, and may dispose of it as 
 his own separate estate. The wife may dispose 
 of her separate property without the consent of 
 her husband. She may make contracts binding 
 her separate estate, both real and personal. 
 
 In New Hampshire, the wife may hold real 
 and personal property, and convey, devise, or 
 sell the same as freely as if she were unmarried. 
 She is not liable for the debts of her husband ; 
 she may make contracts, and bind her own pro- 
 perty in the course of business without his inter- 
 vention ; Gen. Laws, 434. 
 
WIFE 
 
 815 
 
 WIFE 
 
 In iVew Jersey, it is enacted that the real and 
 personal property of any woman who may marry, 
 and which she shall own at the time of marriage, 
 and the rents, issues, and profits thereof, shall 
 not be subject to the disposal of her husband, 
 nor be liable for his debts, and shall continue her 
 sole and separate property, as if she were a single 
 female. 
 
 The real and personal property, and the rents, 
 issues, and profits thereof, of any woman now 
 married, shall not be subject to the disposal of 
 her husband, but shall be her sole and separate 
 property, as if she were a single woman, except 
 so far as the same may be liable for the debts of 
 her husband contracted before the statute by any 
 legal lien. 
 
 The contracts of a wife, since January 1, 1875, 
 may be enforced against her in her own name 
 apart from her husband ; but she cannot become 
 an accommodation endorser, guarantor, or 
 surety, nor is she liable on any promise to an- 
 swer for the debts or liabilities of any other per- 
 son. Her husband must join her to convey or 
 incumber her real estate. 
 
 It shall be lawful for any married woman to 
 receive, by gift, grant, devise, or bequest, and 
 hold to her sole and separate use, as if she were 
 a single woman, real and personal property, and 
 the rents, issues, and profits thereof; and the 
 same shall not be subject to the disposal of her 
 husband, nor be liable for his debts ; Rev. 638. 
 
 In New Mexico, the wife is sole owner of the 
 property inherited or brought by her into the 
 marriage community. Her husband has control 
 of her property, and she cannot convey or sell 
 without his joining in the deed. Her separate es- 
 tate is not liable for his debts nor for necessaries. 
 
 In Nem York, by statute, the real and personal 
 property of any female who may marry, and 
 which she shall own at the time of marriage, and 
 the rents, issues, and profits thereof, shall not be 
 subject to the disposal of her husband, nor be 
 liable for his debts, and shall continue her sole and 
 separate property, as if she were a single female. 
 
 The real and personal property, and the rents, 
 issues, and profltsthereof,of any female married 
 when the statute was passed, shall not be subject 
 to the disposal of her husband, but shall be her 
 sole and separate property, as If she wei'e a 
 single female, except so far as the same may be 
 liable for the debts of her husband contracted 
 before the statute. 
 
 Any married female may take, by inheritance 
 or by gift, grant, devise, or bequest from any 
 person other than her husband, and hold to her 
 sole and separate use, and convey and devise, 
 real and personal property, and any interest or 
 estate therein, and the rents, issues, and profits 
 thereof, in the same manner and with like, effect 
 as if she were unmarried ; and the same shall 
 not be subject to the disposal of her husband 
 nor be liable for his debts. 
 
 In an action or special proceeding, a married 
 woman may appear, prosecute, or defend alone 
 or joined with others as if she were single ; Code 
 Pr. § 4.50. 
 
 In North Carolina, all the property of the wife, 
 both real and personal, whether acquired in any 
 manner before or after marriage, is secured to 
 her, and is not liable for the debts, obligations, 
 or engagements of her husband. She may de- 
 vise and bequeath, and with the written assent 
 of her husband, convey her property as if she 
 were unmarried ; Const, art. x. § 6. She can- 
 not contract in any manner affecting her separate 
 estate, except for necessary personal expenses, 
 nor pay her debts contracted before marriage with- 
 out the written consent of her husband, unless 
 she is a free-trader ; Battle's Eev. ch. 69, § 17. 
 
 In Ohio, the real and persona] property of the 
 wife acquired before or after marriage, with the 
 rents, profits, and income thereof, is her sole and 
 separate property, and is free from the control of 
 her husband, and is not liable for his debts, ex- 
 cept in the case of personal property which has 
 been reduced into his possession by her consent. 
 She can in her own name contract for the im- 
 proving of her own estate for any period not ex- 
 ceeding three years. Her husband must be 
 joined with her when she is sued, unless the ac- 
 tion concerns her separate estate, is upon her 
 written obligation, concerns business in which 
 she is a partner, is brought to set aside a deed or 
 will, or is between her and her husband. She 
 may defend in her own right, and if her hus- 
 band neglects to defend, in his also: B. S. §§ 
 4996, 4997. 
 
 In Oregon, the wife's separate property, whether 
 real or personal, is not liable for her husband's 
 debts, and she may manage, convey, and sell the 
 same in the same manner and to the same extent 
 that the husband can his property. Contracts 
 of the wife may be made and enforced by or 
 against her in the same manner as if she were a 
 feme sole. The expenses of the family and edu- 
 cation of the children are chargeable upon the 
 property of both husband and wife, or either of 
 them, and they may be sued either jointly or 
 severally in relation thereto. 
 
 In Pennsylvania, it is provided that every spe- 
 cies and description of property, whether con- 
 sisting of ,real, personal, or mixed, which may 
 be owned by or belong to any single woman, 
 shall continue to be the property of such woman, 
 as fully after her marriage as before ; and all 
 such property, of whatever name or kind, which 
 shall accrue to any married woman during cov- 
 erture, by will, descent, deed of conveyance, or 
 otherwise, shall be owned, used, and enjoyed by 
 such married woman as her own separate prop- 
 erty ; and the said property, whether owned by 
 her before marriage, or which shall accrue to her 
 afterwards, shall not be subject to levy and exe- 
 cution for the debts or liabilities of her husband; 
 nor shall such property be sold, conveyed, mort- 
 gaged, transferred , or in any manner incumbered, 
 by her husband, without her consent given ac- 
 cording to law. Provided that the said husband 
 shall not be liable for the debts of the wife con- 
 tracted before marriage ; and provided that noth- 
 ing in the act shall he so construed as toprotect 
 the property of any such married woman from lia- 
 bility for debts contracted by herself, or in her 
 n?,me by any person authorized so to do, or from 
 levy and execution on any judgment that may be 
 recovered against a husband for the torts of the 
 wife ; and in such eases execution shall be first 
 had against the property of < the wife ; 3 Purd. 
 Dig. 100.5. Under certain circumstances, when 
 the husband refuses or neglects to provide for 
 his wife, she may upon filing petition be declared 
 a, feme sole trader ; 1 Purd. Dig. 692. 
 
 In Rhode Island, the real estate, chattels real, 
 and personal estate which are the property of any 
 woman before marriage, or which may become 
 the property of any woman after marriage, or 
 which may be acquired by her own industry, 
 shall be so far secured to her sole and separate 
 use that the same, and the rents, profits, and in- 
 come thereof, shall not be liable to be attached 
 or in any way taken for the debts of the hus- 
 band, either before or after his death, and upon 
 the 4eath of the husband in the lifetime _of the 
 wife shall be and remain her sole and separate 
 property. 
 
 The chattels real, household furniture, plate, 
 je«vels, stock or shares in the capital stock of any 
 incorporated company, money on deposit in any 
 
WIPE 
 
 816 
 
 WIFE 
 
 savings-bank or institution for savings, with the 
 interest thereon, or debts secured by mortgage 
 on property, which are the property of any 
 woman before marriage, or which may become 
 the property of any woman after marriage, shall 
 not be sold, leased, or conveyed by the husband 
 unless by deed in which the wife shall join as 
 grantor, — which deed shall be acknowledged in 
 the manner by law provided for the conveyance 
 of the real estate of married women. 
 
 Any married woman may sell and convey any 
 of her personal estate, other than that described 
 in the next preceding section, in the same man- 
 ner as if she were single and unmarried, and 
 may make contracts respecting the sale and con- 
 veyance thereof with the same effect and with 
 the same rights, remedies, and liabilities as if 
 such contracts had been made before marriage; 
 but nothing in this section shall be construed to 
 authorize any married woman to ti:ansact busi- 
 ness as a trader, or bind herself by a promissory 
 note ; Gen. Stat. eh. 153, § 6. 
 
 In South Carolina, the real and personal pro- 
 perty of a woman held at the time of her mar- 
 riage, or that which she may thereafter acquire, 
 either by gift, grant, inheritance, devise, or 
 otherwise, shall not- be subject to levy and sale 
 for her husband's debts, but sliall be held as her 
 separate property, and may be bequeathed, de- 
 vised, or alienated by her the same as if she were 
 unmarried, provided that no gift or grant from 
 the husband to the wife shall be detrimental to 
 the just claims of his creditors ; Const, art. 14, 
 § 8. In every respect the wife may deal as if 
 she was a, feme sole. 
 
 In Tennessee, it is enacted that the interest of 
 a husband in the real estate of his wife, acquired 
 by her either before or after marriage, by gift, 
 devise, descent, or in any other mode, shall not 
 be sold or disposed of by virtue of any judgment, 
 decree, or execution against him ; nor shall the 
 husband and wife be ejected from or dispos- 
 sessed of such real estate of the wife by virtue 
 of any such judgment, sentence, or decree, nor 
 any husband sell his wife's real estate during her 
 life, without her joining in the conveyance in the 
 manner prescribed by law in which married 
 women shall convey lands. 
 
 The proceeds of real or personal property be- 
 longing to a married woman cannot be paid to 
 any person except by consent of such married 
 woman upon privy examination by the court or 
 some suitable commissioner appointed by the 
 court, or unless a deed or power of attorney is 
 executed by the husband and wife, and her privy 
 examination taken as in other cases. 
 
 In Texas, all the real and personal property 
 owned by the wife at the time of her marriage, 
 and all that acquired by gift, devise, or descent, 
 as also the Increase of all such property, remain 
 her separate property ; but the husband has the 
 management of it during the continuance of the 
 marriage. All property acquired, except as 
 above, either by husband or wife during the mar- 
 riage, is common property, and during the mar- 
 riage may be disposed of by the husband with- 
 out the wife's consent ; is liable for his debts, 
 and for the debts of the wife contracted for neces- 
 saries during her coverture. She maybe jointly 
 sued with her husband for all; debts contracted 
 by her for necessaries furnished herself or her 
 children, and for expenses incurred by her for 
 the benefit of her separate property, and in 
 failure of the husband's property her own may 
 be levied on in execution. 
 
 In Utah, all property owned either by husband 
 or wife before marriage, and that acquired after- 
 wards by gift, bequest, devise, or descent, is the 
 separate property of such husband or wife, and 
 may be managed, controlled, transferred, or dis- 
 
 posed of without limitation or restriction. The 
 wife may sue or be sued without the joinder of 
 her husband. 
 
 In Vermont, the wife's separate property, 
 whether acquired before or after marriage, is not 
 liable for her husband's debts, nor for debts con- 
 tracted for the support of herself or her children 
 as her husband's agent. She can make no con- 
 tracts unless she be carrying on business in her 
 own name, in which she may sue and be sued in 
 all matters relating to the business as if she were 
 a, feme sole, and execution may issue against her 
 and levy be made on her sole and separate goods, 
 chattels, and estate. In order to a valid convey- 
 ance of her separate estate, the husband must 
 join In the deed. 
 
 In Virginia, the real and personal property 
 of any woman who shall marry, and which she 
 shall own at the time of her marriage, and the 
 rents. Issues, and profits thereof, and any pro- 
 perty, real or personal, acquired by a married 
 woman as a separate and sole trader, shall not 
 be subject to the disposal of her husband, nor be 
 liable for his debts, and shall be and continue 
 her separate and sole property, and any such 
 married woman shall have power to contract in 
 relation thereto, or for the disposal thereof, and 
 may sue and be sued as if she was a feme sole ; 
 provided that her husband shall join in any con- 
 tract in reference to her real or personal pro- 
 perty, other than such as she may acquire as a 
 sole trader, and shall be joined with her in any 
 action by or against her ; and provided further 
 that nothing herein contained shall deprive her 
 of the power to create, without the concurrence 
 of her husband, a charge upon such sole and 
 separate estate as she would be empowered to 
 charge without the concurrence of her husband 
 if this act had not been passed ; Act of April 4, 
 1877 ; Sess. Laws, 1876-77, p. 333. 
 
 In Washington, all the wife's property, both 
 real and personal, owned by her before marriage, 
 and that afterwards acquired by gift, devise, or 
 descent, is her separate property. Property 
 otherwise acquired is common property of the 
 husband and wife. The husband has the man- 
 agement and control of the wife's separate pro- 
 perty during marriage, but the wife must join 
 Mm in any conveyance. The wife's separate 
 property maybe seized in execution for the hus- 
 band's debts, unless she shall have filed in the 
 oJSce of the recorder of the county where the 
 land is situated on inventory thereof ; Stat. 1873, 
 pp. 450-453. 
 
 In West Virginia, the wife may hold real and 
 personal property to her sole and separate use 
 free from the control of the husband and not 
 subject to his debts ; but she cannot sell or con- 
 vey the same without his joining in the deed or 
 writing. Her note is a charge upon her separate 
 property only, she transacts business as a fetiw 
 sole, and her own estate is liable for her debts. 
 
 In Wisconsin, by statute, the real and personal 
 property of any female who may marry, and 
 which she shall own at the time of marriage, 
 and the rents, issues, and profits therec*f, shall 
 not be subject to the disposal of her husband, 
 nor be liable for his debts, and shall continue her 
 sole and separate property. 
 
 Any married woman may receive by inheri- 
 tance, or by gift, grant, devise, or bequest, from 
 any person other than her husband, and hold to 
 her Bol^ and separate use, and convey and de- 
 vise, real and personal property, and any interest 
 or estate therein, and the rents, issues, and pro- 
 fits, in the same manner and with like effect as 
 if she were unmarried ; and the same shall not 
 be subject to the disposal of her husband nor be 
 liable for his debts. 
 
 AAy married woman, whose husband, either 
 
WIFE'S EQUITY 
 
 817 
 
 WILL 
 
 from drunkermeea, profligacy, or from any other 
 cause, shall neglect or refuse to provide for her 
 support, or for the support and education of her 
 children, and any married woman who may be 
 deserted by her husband, shall have the right in 
 her own name to transact business, and to receive 
 and collect her own earnings and the earnings of 
 her own minor children, and apply the same for 
 her own support and the support and education 
 of such children, free from the control and inter- 
 ference of her husband, or any person claiming 
 the same or claiming to be released from the same 
 by or through her husband. K. S. ch. 108, §§ 
 2340-3347. 
 
 In Wyoming, the wife may own both real and 
 personal property free from liability for her hus- 
 band's debts, sue and be sued, carry on trade or 
 business the same as if she were unmarried. She 
 may act as an elector, hold office, and vote the 
 same as other electors ; but she cannot act as 
 administratrix. 
 
 WIPE'S EQUITY. The equitable right 
 of a wife to have settled upon her and her 
 children a suitable provision out of her estate 
 whenever the husband cannot obtain it with- 
 out the aid of a court of equity. Shelf. Marr. 
 & D. 605. 
 
 By the marriage the husband acquires an 
 interest in the property of his wife, in consid- 
 eration of the obligation which he contracts 
 by the marriage of maintaining her and their 
 children. The common law enforces this duty 
 thus voluntarily assumed by him, by an action, 
 and, therefore, allows him to alien the pro- 
 perty to which he is thus entitled jure mariti, 
 or in case of his bankruptcy or insolvency it 
 would vest in his assignee for the benefit of 
 his creditors, and the wife would be left, with 
 her children, entirely destitute, notwithstand- 
 ing her fortune may have been great. To 
 remedy this evil, courts of equity, in certain 
 cases, give a provision to the wife, which is 
 called the wife's equity. 
 
 The principle upon which courts of equity 
 act is, that he who seeks the aid of equity 
 must do equity; and that will be withheld 
 until an adequate settlement has been made; 
 
 1 P. Wms. 459, 460. See 6 My. & C. 105 ; 
 11 Sim. 569 ; 4 Hare, 6. 
 
 Where the property is equitable and not 
 recoverable at law, it cannot be obtained with- 
 out making a settlement upon a wife and chil- 
 dren, if one be required by her ; 2 P. Wms. 
 639; and where, though the property be 
 legal in its nature, it becomes from collateral 
 circumstances the subject of a suit in equity, 
 the wife's right to a settlement will attach ; 5 
 My. & C. 97. See 2 Ves. 607, 680 ; 3 id. 
 166, 421 ; 9 id. 87; 5 Madd. 149; 13 Me. 
 124; 10 Ala. N. S. 401; 9 Watts, 90; 5 
 Johns. Ch. 464 ; 2 Bland, Oh. 545. 
 
 The wife's equity to a settlement is bindmg 
 not only upon the husband, but upon his as- 
 signee, under the bankrupt or insolvent laws ; 
 
 2 Atk. 420 ; 3 Ves. 607 ; 6 Johns. Ch. 25 ; 
 1 Paige, Ch. 620 ; 4 Mete. Mass. 486 ; 4 
 Gill & J. 283 ; 5 T. B. Monr. 338 ; 10 Ala. 
 N. 8. 401 ; 1 Ga. 637. And even where the 
 husband assigned the wife's equitable right 
 for a valuable consideration, the assignee was 
 considered liable ; 4 Ves. 19. 
 
 Vol. II.— 52 
 
 As to the amount of the rights of the wife, 
 the general rule is that one-half of the wife's 
 property shall be settled upon her ; 2 Atk. 
 423 ; 3 Ves. Ch. 166. But it is in the discre- 
 tion of the court to give her an adequate set- 
 tlement for herself and children ; 5 Johns. 
 Ch. 464 ; 6 id. 25 ; 3 Cow. 591 ; 1 Des. Eq. 
 263 ; 2 Bland, Ch. 546 ; 1 Cox, N. J. 153 ; 
 5 B. Monr. 31 ; 3 Ga. 193 ; 9 S. & S. 597. 
 
 Whenever the wife insists upon her equity, 
 the right will be extended to her children ; 
 but the right is strictly personal to the wife, 
 and her children cannot insist upon it after 
 her death ; 2 Ed. Ch. 337 ; 1 J. & W. 472 ; 
 
 1 Madd. 467 : 11 Bligh, N. 8. 104; 2 Johns. 
 Ch. 206 ; 3 Cow. 591 ; 10 Ala. n. s. 401. 
 
 The wife's equity will be barred by an ade- 
 quate settlement having been made upon her ; 
 
 2 Ves. Ch. 675; by living in adultery apart 
 from her husband; 4 Ves. Ch. 146; but a 
 female ward of court, married without its 
 consent, will not be barred although she 
 should be living in adultery ; 1 Ves. & B. 
 Ch. 302. 
 
 See White & T. L. 0. Eq. 
 
 'WILD ANIMALS. Animals in a state 
 of nature ; animals ferce natures. See Ani- 
 mals ; FERiE Natdk^. 
 
 WILFULLY. Intentionally. 
 
 In charging certain offences, it is required 
 that they should be stated to be wilfully done. 
 Archb. Cr. PL 51, 58 ; Leach, 556. 
 
 It is distinguished from maliciously in not 
 implying an evil mind ; L. B. 2 Cr. Cas. Kes. 
 161. 
 
 In Pennsylvania, it has been decided that 
 the word maliciously was an equivalent for 
 the word wilfully, in an indictment for arson ; 
 5 Whart. 427. 
 
 'WILL (last will and testament). The dis- 
 position of one's property, to take effect after 
 death. Swinb. Wills, pt. 1, § 2 ; Godolphin, 
 pt. 1, c. 1, s. 2. 
 
 The testator's body cannot be disposed of 
 by his will, because the law recognizes no 
 property in a dead body, and it is the duty of 
 the executor to bury it ; 21 Am. L. Reg. N. 
 s. 508. 
 
 The term will, as an expression of the final dis- 
 position of one's property, is confined to the Eng- 
 lish law and those countries which derive their 
 jurisprudence from that source. The term testa- 
 mentum, or testament., is exclusively used in the 
 Koman civil law and by the continental writers 
 upon that subject. Some controversy seems to 
 exist whether the word testamentum is strictly 
 derived from testatum or from that in combina- 
 tion with mentis. There does not seem to be 
 much point in this controversy, for in either view 
 the result is the same. It is the final declaration 
 of the person in regard to the disposition of his 
 property. It is his testimxmy upon that subject, 
 and that is the expression of his mind and vM in 
 relation to it. 
 
 The practice of allowing the owner of pro- 
 perty to direct its destination after his death is 
 of very ancient date. Genesis, xlviii. 33 ; Gal. 
 iil. 15 ; Plutarch's Life of Solon ; Koman Laws 
 of the Twelve Tables. But wills are not, like 
 succession, a law of nature. A stage where they 
 
WILL 
 
 818 
 
 "WILL 
 
 are not recognized always, In'every society, pre- 
 cedes the time when they are allowed. In their 
 early growth they were not regarded as a method 
 of distributing a dead man's goods, but as a 
 means of transferring the power and authority 
 of a family to a new chief. It is not until the 
 later portion of the middle ages that they be- 
 come a mode of diverting property from the 
 family or of distributing it according to the 
 fancy of the owner. Maine, Anc. Law, 171-217. 
 Nor is the power to dispose of property by will 
 a constitutional right. It depends almost wholly 
 on statute ; 100 Mass. 234. 
 
 The right of disposing of property by will did 
 not exist in early times among the ancient Ger- 
 mans, or with the Spartaus under the laws of 
 Lycurgus, or the Athenians before the time of 
 Solon, i Kent, 502, and note. 
 
 And in England, until comparatively a recent 
 period, this right was to be exercised under con- 
 siderable restrictions, even as to personal estate. 
 8 Bla. Com. 492. 
 
 Until the statute of 32 & 34 Henry VIII., called 
 the Statute of Wills, the wife and children were 
 each entitled to claim of the executor their rea- 
 sonable portion of the testator's goods, i. e. each 
 one-third part. So that if one had both a wife 
 and children, he could only dispose of one-third 
 of his personal estate, and if he had either a wife 
 or child, but not both, he couid dispose of one- 
 half; Fitzh. N. B. 122 H (b), 9th ed.; 2 Saund. 
 66, n. (9); 2 Bla. Com. 492. All restrictions are 
 now removed from the disposition of property 
 by will, in England, whether real or personal, 
 hy the statute of 1 Vict. c. 26. 3 Jarm. Wills 
 (Randolph & Talcott's ed.),731. And in the 
 Soman civil law the children were always en- 
 titled to their share, or legitime, being one-fourth 
 part of the estate, of which they could not be de- 
 prived by the will of their father. The legitime 
 was by the emperor Justinian increased to one- 
 third part of the estate where there were four or 
 a less number of children, and if more than four 
 then they might claim one-half the estate, not- 
 withstanding the will. Novell. 18, c. 1 ; 2 Do- 
 mat, Civil Law, 15. 
 
 And by the existing law of the state of Louisi- 
 ana, one is restrained of disposing of his whole 
 estate if he have children. One child may claim 
 one-thirds of the estate, two may claim half, and 
 three two-thirds, as their legitime, or reasonable 
 part of the estate. See Louisiana Code. 
 
 According to the civil law, the naming of an 
 executor was of the essence of a will ; and that 
 constituted the essential difference between a 
 will and a codicil ; the latter, not malting any 
 such appointment, was, on that account, called 
 an inofficious testament, or will. Swinb. Wills, 
 •pt. 1, § 5, pi. 2. 3 ; 1 Will. Exec. 7. The execu- 
 tor under a Roman will succeeded to the entire 
 legal position of the deceased. He continued 
 the legal personality of the testator, taking all 
 the property as his own, and becoming liable for 
 all the obligations. Maine, Anc. Law, 126. 
 
 ~ In the United States the homestead laws 
 in some states affect the validity of wills by 
 making void a husband's devise of homestead 
 land; 3 Jarm. Wills (Randolph & Talcott's 
 ed.), 740. See same citation for regulations 
 in various states as to devises to corporations, 
 or for charitable purposes. 
 
 Wills are unwritten or nuncupative, and 
 written. The former are called nuncupative 
 from nuncupare, to name or make a solemn 
 declaration, because wills of this class were 
 required to be made in solemn form before 
 vfitneeses, and by the naming of an executor. 
 
 Swinb. Wills, pt. 1, § 12, pi. 1 ; Godolphin, 
 pt. 1, c. 4, § 6. But it has been held that 
 appointing an executor is not essential to a 
 nuncupative will ; 8 N. Y. 196. 
 
 To make a nuncupative will the person 
 must be in extremis, and in immediate pros- 
 pect of death ; and his words must have been 
 intended as a will ; 20 Johns. 602 ; 2 Stew 
 (Ala.) 364. 
 
 _ This class of wills is liable to much tempta- 
 tion to fraud and perjury. The statute of 29 
 Charles II. c. 8 laid them under several re- 
 strictions ; and that of 1 Vict. c. 26 rendered 
 them altogether invalid except as to "any 
 soldier in actual military service, or any 
 mariner or seaman, being at sea," who may 
 dispose of personal estate the same as before 
 the act; 3 Jarm. Wills (Randolph & Talcott's 
 ed.), 755, note, et seq. 
 
 By the insertion of the clause "in actual 
 military service," it has been held to include 
 only such as were on an expedition, and not 
 to include those quartered in barracks, either 
 at home or in the colonies ; 3 Curt. 522, 
 818 ; 39 Vt. 111. But see, also, 2 Curt. 368, 
 341. 
 
 So the exception does not extend to the 
 commander-in-chief of the naval force in 
 Jamaica, who lived on shore at the official 
 residence with his family.. The Earl of 
 Easton «. Seymour, cited by the court in 2 
 Curt. Eccl. 339 ; 3 id. 530. The statutes of 
 most of the American states have either 
 placed nuncupative wills under special re- 
 strictions, or else reduced them within the 
 same narrow limits as the English statutes. 
 In many of the states they still exist much 
 as they did in England before ,the statute of 
 l.Yict. 0. 26, being limited to a small amount 
 of personal estate ; 1 Jarm. Wills, Perk. ed. 
 136, and note. 
 
 A will may be written in pencil. But it is 
 a strong indication that the will so written 
 was not a final act, but merely a deliberative 
 one. This indication may, however, be over- 
 come by proof; 84 Penn. 510 ; 1 Hagg. 219 ; 
 S Moo. P. C. 223 ; 23 Beav. 195. 
 
 Written Wills. 
 
 The Testator's Capacity. He must 
 be of the age of discretion, which, by the 
 common law of England, was fixed at twelve 
 in females, and fourteen in males ; Swin- 
 burne, pt. 2, § 2, pi. 6 ; Godolphin, pt. 1, c. 
 8, 8 1 ; 1 Will. Ex. 13 ; 1 Jarm. Wills, 29. 
 
 This is now regulated by statute, both in 
 England and most of the United' States. The 
 period of competency to execute a will, in 
 England, is fixed at twenty-one years, and 
 the same rule is adopted in many of the 
 United States, and the disposition is strongly 
 manifested in that direction throughout the 
 state?; 3 Jarm. Wills (Randolph & Talcott's 
 ed.), 748, note. 
 
 Aliens. By the common law in England, 
 an alien could not devise nor take by devise 
 real estate; and an alien enemy could not 
 devise personalty until S3 Vict. c. 14, § 2. 
 
WILL 
 
 819 
 
 WILL 
 
 This rule is now, in the United States, much 
 altered by statute ; 1 Kedf. Wills, 8-14 ; 3 
 Jarm. Wills (Randolph & Talcott's ed.)) 
 743, note. Indians, in the absence of stat- 
 ute on the subject, are governed by the same 
 law as resident aliens ; p. 745 of last cita- 
 tion. See same citation as to convicts, for 
 whom the regulations are mostly statutory. 
 Coverture is a disability to the execution of a 
 will, unless by the consent of the husband ; 
 
 2 Bla. Com. 498 ; 4 Kent, 505 ; 1 Will. 
 Ex. 42. But a married woman cannot, 
 even with her husband's consent, devise 
 land, becaiuse she would thereby exclude 
 her heir; otherwise with chattels ; 12 Mass. 
 525 ; 16 N. H. 194 ; 10 S. & R. 445 ; 15 
 N. J. Eq. 384. In the United States the 
 disability as to coverture has been largely 
 changed by statute ; 1 Redf. Wills, 22-29 ; 
 
 3 Jarm. Wills (Randolph & Talcott's ed.), 
 752, note. Blindness is so far an incapacity 
 that it requires express and satisfactory proof 
 that the testator understood the contents of 
 the will, in addition to what is required in 
 other cases; 1 Rob. Eccl. 278; 3 Strobh. 
 297; 1 Jarm. Wills, 49. Deaf and dumb 
 persons will labor under a similar inconve- 
 nience, and especially in communicating with 
 the witnesses, unless they have been educated 
 so as to be able to write ; Whart. & St. Med. 
 Jur. § 13. But the witnesses must, to be 
 present with the testator, be within the pos- 
 sible cognizance of his remaining senses ; 
 Richardson, J., in 1 Spears, 256. Persons 
 deaf, dumb, and blind were formerly esteemed 
 wholly incapable of making a will ; but that 
 class of persons are now placed upon the 
 same basis as the two former, with only the 
 additional embarrassment attending the de- 
 fect of another sense; 1 Will. Ex. 17. 18; 
 1 Redf. Wills, 53. 
 
 Idiots are wholly incapable of executing a 
 will, whether the defect of understanding is 
 congenital or accidental. Lunatics are inca- 
 pable of executing a last will and testament, 
 except during such a lupid interval as allow- 
 the exercise of memory and judgment. It 
 must be an absolute, but not necessarily a 
 perfect, restoration to reason and reflection, 
 and not a mere temporary remission ; Tayl. 
 Med. Jur. 642 ; 3 Bro. C. C. 441 ; Pothier, 
 Obi. Evans ed. App. 579; Whart. «e St. 
 Med. Jur. § 255; Rush, Mind, J 62; Ray, 
 Med. Jur. § 279; Combe, Ment. Der. 241; 
 9 Ves. Ch. 611 : 13 id. 87 ; 12 Am. L. Res. 
 385; 1 Phila. 90; 31 N. J. Eq. 633; 94111. 
 560 ; 26 Wend. 255 ; 1 Redfield on Wills, 
 107, 120. But mere weakness of understand- 
 ing is not sufficient to invalidate a will, if the 
 testator is capable of comprehending the ob- 
 ject in view; 17 Ark. 292; 2 Bradf. 42 ; 2 
 J. J. Marsh. 340; 10 S. & R. 84. Mono- 
 mania, or partial insanity. This is a mental 
 or moral perversion, or both, in regard to a 
 particular subject or class of subjects, while 
 in regard to others the person seems to have 
 
 [no* such morbid affection ; Tayl. Med. Jur. 
 
 1326. It consists in the belief of facts in re- 
 
 gard to the particular subject of the affection, 
 which no sane person would or could believe ; 
 1 Add. Eccl. 279 ; 3 id. 79. When it ap- 
 pears that the will is the direct oflspring of 
 this morbid affection, it should be held iur 
 valid, notwithstanding the general soundness 
 of the testator; 6 Ga, 324; 7 Gill, 10; 8 
 Watts, 70. See, also, 6 Moore, P. C. 341, 
 349; 12 Jurist, 947, where Lord Brougham 
 contiends for the extreme notion that every 
 person laboring under any form of partial in- 
 sanity or monomania is incompetent to exe- 
 cute a valid will, because the mind being one 
 and entire, if unsound in any part it is an 
 unsound mind. This extreme view will scarcely 
 gain final acceptance in the courts ; Whart. & 
 St. Med. Jur. § 18, contra. 
 
 Delirium from disease, or stimulus.. This, 
 while the paroxysm continues to such an ex- 
 tent as to deprive a person of the right exer- 
 cise of reason, is a sufficient impediment to 
 the execution of a will ; Ray, Ins. §8 253, 
 254, 390 ; Tayl. Med. Jur. 626 ; Rush, Mind, 
 282; 18 Ves. Ch. 12; 17 Jur. 1045; 1 Ves. 
 Sen. 19. See, also, 2 Aik. Vt. 167 ; 1 Bibb, 
 168. But there is not the same presumption of 
 the continuance of this species of mental per- 
 version, whether it proceed from the intoxica- 
 tion of stimulus or the delirium of fever, as in 
 ordinary insanity ; 3 Hill, So. C. 68 ; 4 Mete. 
 Mass. 545. Senile dementia. This is a de- 
 fect of capacity which comes very frequently 
 in question in courts of justice in testing the 
 validity of wills. If the testator has sufficient 
 memory remaining to be able to collect the 
 elements of the transaction — viz., the amount 
 and kinds of property he had, and the num- 
 ber of his children, or other persons entitled 
 to his bounty — and to hold them in mind 
 sufficiently to form an understanding judg- 
 ment in regard to them, he w^y execute a 
 valid will ; Ray, Ins. J 243 ; Tayl. Med. Jur. 
 650; 21 Vt. 168; 1 Redf. Wills, 94-107; 31 
 Ala. 59; 2 Bradf. 360; 32 N. J. Eq. 701. 
 Age itself is no sure test of incapacity ; 2 
 Phill. 261, 262. But when one becomes a 
 child again, he is subject to the same incapa- 
 cities as in his first childhood; 1 Williams, 
 Ex. 35; 3 Madd. Ch. 191; 2 Hagg. Eccl. 
 211; 6 Ga. 324. Fraud. If a person is in- 
 duced by fraud or undue influence to make a 
 will or legacy, such will or legacy is void ; 4 
 Ves. 802 ; 6 H. L. Cas. 2 ; 35 N. Y. 559 , 50 
 Md. 466, 480 ; 1 Jarm. Wills {5th ed.) 35 ; 1 
 Redf. Wills, 507-537. 
 
 The Mode of Executioit. This de- 
 pends upon the particular form of the statute 
 requirements ; 3 Jarm. Wills (Randolph & 
 Talcott's ed.), 763, note, et seq. 
 
 Under the English Statute of Frauds, 29 
 Car. II., as "signing" only was required, it 
 was held that a mark was sufficient ; 3 KTev. 
 & P. 228 ; 8 Ad. & E. 94 ; 10 Paige, Oh. 'N. 
 Y. 85. And under the statute of 1 Vict. c. 
 26, the same form of execution is required so 
 far as signing is concerned. But sealing seems 
 not to be sufficient where signing is required ; 
 1 Wils. 313 ; 1 Jarm. Wills, 69, 70, and 
 
WILL 
 
 820 
 
 WILL 
 
 cases cited. So, it was immaterial in what 
 pArt of the will the testator signed. It was 
 sufficient if the instrument began, I, A B, 
 etc., and was in the handwriting of the testa- 
 tor, and he treated that as signing or did not 
 regard the instrument as incomplete, as it 
 evidently would be so long as he intended to 
 do some further act to authenticate it ; 3 Lev. 
 I ; Freem. 538 ; 1 Eq. Cas. Abr. 403, pi. 9 ; 
 Free, in Chanc. 184 ; 21 Vt. 256. But if it 
 appear, from the form of attestation at the 
 close, or in any other way, that the testator 
 did not regard the instrument as complete, the 
 introduction of the testator's name at the be- 
 ginning, in his own handwriting, is not a suffi- 
 cient signing ; Dougl. 241 ; 1 Gratt. 454 ; 
 13 id. 664 ; 10 Paige, Ch. 85. See 7 Q. 
 B. 450. It was not held necessary under 
 the Statute of Frauds of Charles II. that the 
 witnesses should subscribe in the presence of 
 each other. They might attest the execution 
 at different times ; Prec. in Chanc. 1 84 ; 1 
 Ves. Ch. 12-; 1 Will. Ex. 79. But the stat- 
 ute 1 Vict, requires both the witnesses to be 
 piesent when the testator signs the will or 
 acknowledges his signature ; and they must 
 afterwards attest in the presence of the testa- 
 tor, although not of each other ; 3 Curt. Eccl. 
 659 ; 1 Will. Ex. 79, and note. 
 
 Holograph wills in general require no at- 
 testation; 3 Jarm. Wills (Kandolph & Tal- 
 cott's ed.), 767, note. 
 
 The statutes in the different states differ to 
 some extent, but agree substantially with the 
 English statute of Charles II. The revised 
 statutes of New York require the signature of 
 the testator and of the witnesses to be at the 
 end of the will ; 4 Wend. 168 ; 13 Barb. 17; 
 20 id. 238. So, also, in Arkansas, Pennsyl- 
 vania, and Ohio, and probably some other of 
 the American states; 1 WiU. Ex. Perkins 
 ed. 117, n. 
 
 The competency of witnesses and the validity 
 of devises to witnesses, or to the husband or 
 wife of a witness, are questions usually con- 
 trolled by statute ; 3 Jarm. Wills (Randolph 
 & Talcott's ed.), 775, note, et seq. 
 
 Publication. Questions have often arisen 
 in regard to what declaration is requisite for 
 the testator to make, to constitute a publica- 
 tion in the presence of the witnesses. But 
 the later and best-considered cases, under 
 statutes similar to that of Charles II., only 
 require that the testator shall produce the in- 
 strument to the witnesses for the purpose of 
 being witnessed by them, and acknowledge 
 his own signature in their presence. The pro- 
 duction of the instrument by the testator for 
 the purpose of being attested by the witnesses, 
 if it bear his signature, will be a sufficient ac- 
 knowledgment ; 11 Cush. 532 ; 1 Burr. 421 ; 
 3 id. 1775; 4 Burn, Eccl. Law, 102; 6 
 Bingh. 310; 7 id. 457; 7 Taunt. 361; 1 Cr. 
 & M. 140 ; 3 Curt. Eccl. 181 ; 30 Ga. 808 ; 
 2 Barb. 385 ; 46 111. 61 ; 34 Me. 162 ; 3 
 Kedf. 74 ; 44 Wise. 392. Where a will or 
 codicil refers to an existing unattested will or 
 other paper, it thereby becomes a part of the 
 
 will; 2 Ves. Ch. 228; 1 Ad. & E. 423; 1 
 Will. Ex. 86, and note ; 1 Rob. Eccl. 81. 
 Witnesses may attest by a mark ; 8 Ves. 
 Ch. 185, 504 ; 5 Johns. 144 ; 4 Kent, 514, n. 
 
 Rktocation. The mode of revocation 
 of a will provided in the Statute of Frauds, 
 Car. II., is by "burning, cancelling, tearing, 
 or obliterating the same." In the present 
 English Statute of Wills, the terms used are, 
 " burning, tearing, or otherwise destroying." 
 If the testator has torn off or effaced his seal 
 and signature at the end of a will, it will be 
 presumed to have been done animo revocandi; 
 1 Add. Eccl. 78 ; 1 Cas. temp. Lee, 444 ; S 
 Hagg. Eccl. 568. So, too, where lines were 
 drawn over the name of the testator ; 2 Cas. 
 temp. Lee, 84. So, also, where the instru- 
 ment had been cut out from its marginal 
 frame, although not otherwise defaced, except 
 that the attestation clause was cut through, 
 it was held to amount to a revocation ; 1 
 Phill. Eccl. 375, 406. 
 
 It is not requisite in order to effiect the re- 
 vocation that the testator should effect the 
 destruction of the instrument. It is sufficicct 
 if he threw it upon the fire with the intention 
 of destroying it, although some one snatch it 
 off after it is slightly burned, and preserve it 
 without his knowledge ; 2 W. Blackst. 1043. 
 But it would seem that it must be an actual 
 burning or tearing to some extent, — an in- 
 tention merely to do the acts not coming 
 within the statute ; 6 Ad. & E. 209 ; 2 Nev. & 
 P. 615. But, aside from the statute, a mere 
 intention to revoke evidenced by any other 
 act, will be effectual to revoke : as, burning or 
 tearing, etc. ; 8 Ad. & E. 1. How much the 
 will must be burned or torn to constitute a re- 
 vocation under the statute of frauds, was left 
 by the remarks of the different judges in Doe 
 V. Harris, 6 Ad. & E. 209, in perplexing un- 
 certainty ; 1 Williams, Ex. 121. 
 
 If the testator is arrested in his purpose of 
 revocation before he regards it as complete, it 
 will be no revocation, although he tore the 
 will to some extent ; 3 B. & Aid. 489. 
 
 A will may be revoked in part; 2 Rob. 
 Eccl. 563, 572. But partial revocations which 
 were made in anticipation of making a new 
 will, and intended to be conditional upon that, 
 are not regarded as complete until the new 
 will is executed; 1 Add. Eccl. 409; 2 id. 
 316. See 8 Sim. 73. Thus a "memorandum 
 of my intended will" was upheld as a will, 
 and held not to be revoked by the drawing up 
 of a new will which was not signed ; 2 Hagg. 
 Eccl. 225 ; 14 C. L. J. 248. 
 
 Parol evidence is inadmissible to show that 
 a testator wanted his will to be revoked in 
 the event of a certain contingency happening 
 before his death ; 13 Rept. (Md.) 526 ; but 
 see, contra, 3 Sw. & Tr. 282. 
 
 By the present English statute, every ob- 
 literation or interlineation or alteration of a 
 will must be authenticated in the same mode 
 that the execution of the will is required to 
 be. Hence, unless such alterations are signed 
 by the testator, and attested by two witnesses, 
 
WILL 
 
 821 
 
 WILL 
 
 they are not to be regarded as made, however 
 obvious the intention of the testator may be. 
 But if the words are so obliterated as to be no 
 longer legible, they are treated as blanks in 
 the will; 3 Curt. Ecol. 761. The mere act 
 of defacing a will by accident and without 
 the intention to revoke, or under the misap- 
 prehension that a later will is good, will not 
 operate as a revocation ; 1 P. Wms. 345 ; 
 Cowp. 52 ; 1 Saund. 279 b, c ; 1 Add. Eccl. 
 53. The revocation of a will is prima facie 
 a revocation of the codicils ; 4 Hagg. Eccl. 
 361. But it is competent to show that such 
 was not the testator's intention ; 2 Add. Eccl. 
 230; 1 Curt. Eccl. 289; I Will. Ex. 134. 
 The same capacity is requisite to revoke as to 
 make a will; 7 Dana, 94; 11 Wend. 227 ; 9 
 Gill, 169 ; 7 Humphr. 92. 
 
 The making of a new wiU purporting on its 
 face to be the testator's last will, and contain- 
 ing no reference to any other paper, and being 
 a disposition of all the testator's property, and 
 so executed as to be operative, will be a revo- 
 cation of all former wills, notwithstanding it 
 contain no express words of revocation; 2 
 Curt. Eccl. 468 ; 18 Jur. 560 ; 4 Moore, P. 
 C. 29 ; 2 Dall. 266. So the appointment of 
 an executor is a circumstance indicating the 
 exclusiveness of the instrument ; 1 Macq. Hou. 
 L. 163, 173. And the revocation will become 
 operative, notwithstanding the second will 
 becomes inoperative from the incapacity of 
 the devisee; 1 Pick. 536, 543. 
 
 Where there are numerous codicils to a 
 will, it often becomes a question of difficulty 
 to determine how far they are intended as 
 additions to, and how far as substitutes for, 
 each other. In such cases, the English eccle- 
 siastical courts formerly received parol evi- 
 dence to show the animus of the testator. 
 But it was held, in a later case of this kind, 
 that parol evidence could not be received un- 
 less there was such doubt on the face of the 
 papers as to require the aid of extrinsic evi- 
 dence to explain it ; 2 Curt. Eccl. 799. 
 
 It is regarded as the prima facie presump- 
 tion from the revocation of a later will, a for- 
 mer one being still in existence and uncan- 
 celled, that the testator did intend its restora- 
 tion without any formal republication; 4 
 Burr. 2512; Cowp. 92; 3 Phill. Eccl. 554; 
 2 Dall. 266. But it is still regarded as mainly 
 a question of intention, to be decided by all 
 the facts and circumstances of the case ; 1 
 How. Miss. 336 ; 2 Add. Eccl. 125 ; 3 Curt. 
 Eccl. 770 ; 1 Moore, P. C. 299, 301 ; 1 Will. 
 Ex. 155, 156 ; 2 Dall. 266. An express revo- 
 cation must be made in conformity with the 
 statute, and proved by the same force of evi- 
 dence requisite to establish the will in the first 
 instance; 8 Bingh. 479; 1 Will. Ex. 160. 
 If one republish a prior will, it amounts to a 
 revocation of all later wills or codicils; 1 
 Add. Eccl. 38; 7 Term, 138. 
 
 Implied revocations were very common be- 
 fore the statute of frauds. But since the new 
 statute of 1 Vict. c. 26, § 19, as to all estates 
 real and personal, it is provided that no will 
 
 shall be revoked on the ground of a presumed 
 intention resulting from change of circum- 
 stances. Before that, it was held under the 
 statute of frauds, by a succession of decisions, 
 that, even as to lands, the marriage of the tes- 
 tator and the birth of children who were un- 
 provided for was such a change of circum- 
 stances as to work an implied revocation of 
 the will; 2 Show. 242; 4 Burr. 2171, in note, 
 2182 ; and, finally, by all the judges in Eng- 
 land in the exchequer chamber ; 8 Ad. & E. 
 14 ; 2 Nev. & P. 504. This latter case seems 
 finally to have prevailed in England until the 
 new statute; 2 Moore, P. C. 51, 63, 64; 2 
 Curt. Eccl. 854; 1 Rob. Eccl. 680. And the 
 subsequent death of the child or children will 
 not revive the will without republication ; 1 
 Phill. Eccl. 342 ; 2 id. 266. 
 
 The marriage alone or the birth of a child 
 alone is not always sufficient to operate a re- 
 vocation ; 4 Burr. 2171; Ambl. 487, 557, 
 721 ; 5 Term, 52, and note. The marriage 
 alone of a woman will work a revocation ; 4 
 Kep. 61. Not so the marriage alone of a 
 man. But the birth of a child with circum- 
 stances favoring such a result may amount to 
 an implied revocation ; 5 Term, 52, and note ; 
 1 Phill.' Eccl. 147. For the history of the 
 common law on this subject, see 4 Johns. Ch. 
 510 et seq. In the absence of statute this 
 rule of the common law may be considered 
 abrogated .in those states which give a married 
 woman unrestricted testamentary powers. 
 This matter is controlled in most of the Ame- 
 rican states, more or less, by statute ; 3 Jarm. 
 Wills (Randolph & Talcott's ed.) 783, note. 
 In many of them a posthumous child unpro- 
 vided for in the will of the father inherits the 
 same as if no will had been made. In others, 
 all children born after the execution of the 
 will, aild in some states all children not pro- 
 vided for in the will, are placed on the same 
 ground as if no will existed ; 1 Will. Ex. 
 170, n. 1, 171, n. 1. And by the express pro- 
 visions of the act of 1 Vict, the marriage 
 of the testator, whether man or woman, 
 amounts to a revocation ; 1 Jarm. Wills, 
 106-173. 
 
 Republication. This, under the stat- 
 ute of frauds, could only be done in the same 
 manner a will of lands was required to be 
 first executed.' And the same rule obtains 
 under the statute of 1 Vict., and in many, 
 perhaps most, of the American states. The 
 general rule may be said to be, that a will 
 can be republished only by an instrument of 
 as high a nature as that which revoked it. 
 Thus a will once revoked by written declara- 
 tion cannot be republished by parol ; 2 Conn. 
 67; 9 Johns. 312; 12lred. L. 355; 7 Jones, 
 (N. C.) L. 134. In Pennsylvania, a parol 
 republication is allowed. But the intention 
 of the testator to republish must be clearly 
 proved; 1 Grant, Cas. 75; 2 Whart. 103. It 
 is doubtful, however, if parol evidence alone 
 is sufficient ; 10 Ired. L. 459. _ 
 
 Constructive republication is efiected by 
 means of a codicil, unless neutralized by in- 
 
WILL 
 
 822 
 
 WILL 
 
 temal evidence of a contrary intention ; 1 
 Eq. Can. Abr. 406, D, pi. 5 ; 1 Ves. Sen. 
 437 ; 1 Jarm. Wills. 175, and notes ; 3 Pick. 
 213. 
 
 Probate of Wills. The proof of a will 
 of personal property must always be made in 
 the probate court. But in England the pro- 
 bate of the Will is not evidence in regard to 
 real estate. In most of the American states 
 the same rule obtains in regard to i-eal as to 
 personal estate, — as the probate court has ex- 
 clusive jurisdiction, in most of the states, in 
 all matters pertaining to the settlement of es- 
 tates ; 9 Co. 36, 38 a ; 4 Term, 260 ; 1 Jarm. 
 Wills, 118; 8 N. H. 124; 12 Mete. 421; 8 
 Ohio, 6; 3 Gill, 198; 20 Miss. 134; 23 
 'Conn. 1. See Pkobatb of Wills. 
 
 The probate of a will has no effect out of 
 the jurisdiction of the coUrt before which 
 probate is made, either as to persons or pro- 
 perty in a foreign jurisdiction ; 8 Ves. Ch. 
 44; 1 Johns. Ch. 153; 12Vt. 589; Story, 
 Confl. Laws, §§ 512-517. In regard to the 
 probate of wills passingrealty, the lex rei sitm 
 governs ; personalty is controlled by the Ux 
 domicilii ; Whart. Confl. Laws, §§ 570, 587, 
 592 ; 3 Bradf. 379 ; Stoi^, Confl. Laws, §§ 
 69, 431 ; 10 Moore, P. C. 306. But the in- 
 dorsement of negotiable paper by the execu- 
 tor or administrator in the place of his ap- 
 pointment will enable the indorsee to main- 
 tain an action in a foreign state upon the 
 paper in his own name ; 9 Wend. 425. But 
 see 5 Me. 261 ; 2 N. H. 291, where the rule 
 is held otherwise. The executor may dispose 
 of bank-shares in a foreign state without 
 proving the will there ; 12 Mete. 421. 
 
 Any person interested in the will may com- 
 pel probate of it by application to the pro- 
 bate court, who will summon the executor or 
 party having the custody of it ; 4 Pick. 33 ; 
 3 Bacon, Abr. 34, Executors. The judge of 
 probate may cite the executor to prove the 
 will at the instance of any one claiming an 
 interest ; 4 Pick. 33 ; 1 Will. Ex. 201 ; 1 
 Jarm. Wills, 224. The attesting witnesses 
 are indispensable, if the contestants so insist, 
 as proof of the execution and authenticity of 
 the will and the competency of the testator, 
 when they can be had ; 2 Greenl. Ev. §§ 691; 
 1 Jarm. Wills, 226, and note. But if all or 
 part of the subscribing witnesses are absent 
 from the state, deceased, or disqualified, then 
 their handwriting must be proved ; 9 Ves. 
 Ch. 381; 19 Johns. 186; 1 Jarm. Wills, 
 226, and notes. And see 17 Ga. 364; 9 
 Pick. 350 ; 6 Rand. 33. It will be presumed 
 that the requisite formalities were complied 
 with when the attestation is formal, unless the 
 contrary appear; 8 Md. 15; 11 N. Y. 220; 
 80 Penn. 218 ; 1 Jarm. Wills, 228, and notes. 
 But it has sometimes been held that no such 
 presumption will be made in the absence of a 
 subscribing witness who might be called; 19 
 Johns. 886. Wills over thirty years old, and 
 appearing regular and merfecit, and Coming 
 from the proper custody, are said to prove 
 themselves; 1 Greenl. 'Ev. g§ 21, 570; 2 
 
 Kay & J. 112. See, also, 2 N. & M'C. 400. 
 Wills lost, destroyed, or mislaid at the time 
 of the testator's death may be admitted to 
 probate upon proper proof of the loss and of 
 the execution ; 1 Phill. Eccl. 149 ; 1 Green, 
 Ch. N. J. 220; 1 Jarm. Wills, 231, note. 
 In the case of Sugden vs. Lord St. Leonards, 
 L. K. 1 P. D. 154, the daughter of the de- 
 ceased was allowed to prove from memory 
 the contents of the lost will ; and written and 
 oral declarations of the testator, both before 
 and after the execution of the will, were ad- 
 mitted as evidence. A lost or destroyed wiU 
 may be proved by parol; 87 Penn. 67. 
 
 IB most of the United States statutory 
 provision has been made for proving foreign 
 wills by exe^lified copy ; 3 Jarm. WiUs 
 (Randolph & Talcott's edition), 725, note. 
 
 For statutory and other regulations, in re- 
 gard to probate, see p. 729 of last citation. 
 
 Time fkom which a will speaks. In 
 general, a will speaks from the death of a 
 testator, that being the point of time at which 
 it becomes operative; 21 Conn. 550, 616. 
 But often the language of the testator, as 
 when he uses the word " now" or a verb in 
 the present tense, requires to be taken with 
 reference to the time it is used ; Ambl. 397 ; 
 1 Eq. Cas. Abr. 201 ; 2 Atk. 597 ; 1 Jarm. 
 Wills, 318. But it will receive the former 
 interpretation if it can reasonably be made to 
 bear it ; 2 Cox, Ch. 384. 
 
 Gifts void fob ttncertainty. Where 
 the subject-matter of the gift is not so defined 
 in the will as to be ascertained with reason- 
 able certainty; 25 Penn. 460; 12 Gratt. 
 196; 1 Jarm. Wills, 317; 1 Swanst. 201; 
 the person intended to be benefited may nOt 
 be so described or named that he can he 
 identified. But, in general, by rejecting ob- 
 vious mistakes, this kind of uncertainty is 
 overcome; 1 Jarm. Wills, 330-348, and 
 notes, determinate meanings have now 
 been assigned to numerous doubtful words 
 and phrases, and rules of construction adopted 
 by the courts, which render devises void for 
 uncertainty less frequent than formerly ; 1 
 Jarm. Wills, 356-383. 
 
 Parol evidence, how far admissible. 
 The rule in regard to the admissibility of 
 parol evidence to vary, control, or to render 
 intelligible the words of a will, is not essen- 
 tially different from that which obtains in 
 regard to contracts. It may be received to 
 show the state of the testator, the nature and 
 condition of his property, his relation to the 
 contestants, and all the surrounding circum- 
 stances. But this is done to place the coui-t 
 in the condition of the testator, in order as 
 far as practicable to enable them the more 
 fully to understand the sense in which he 
 probably used the language found in his will ; 
 1 Nev. & M. 524; 15 Pick. 400; 1 Phill. 
 Ev. 532-547 ; 1 Greenl. Ev. §§ 287-289.; 1 
 Jarm. Wills, 349, and notes; 2 Ired. 192. 
 Letters and oral declarations of the testator 
 are not admissible to show the intention of 
 the testator ; 2 Vern. 625 ; 14 Johns. 1 ; 2 
 
WILL 
 
 823 
 
 WILL 
 
 W. & S. 455. But see 22 Wend. 148. 
 Parol evidence is not admissible to supply any 
 ■word or defect in the will ; 7 Gill & J. 127 ; 
 8 Conn. 254 ; 23 Barb. 285 ; 27 Ala. N. 8. 
 489. Parol declarations of the testator about 
 the time of making the will are often ad- 
 mitted to show the state of mind, capacity, 
 and understanding of the testator ; but they 
 are not to be used to show his intention ; that 
 must be learned from the language used ; 8 
 Conn. 254. See, generally, Tud. Lead. Cas.; 
 K. P. 918 ; Wigram, Wills. 
 
 Courts of equity cannot reform a will upon 
 proof of mistake, as they do a contract ; 5 
 Madd. 364 ; 1 Moore & S. 352 ; 6 Conn. 34 ; 
 23 Vt. 33?; 19 Am. L. Reg. 353. Parol 
 evidence is admissible to explain and remove 
 a latent ambiguity ; 1 Maule & S. 345 ; 4 B. 
 & Ad. 787 ; 6 Mete. 404 ; 2 Jones, Eq. 877 ; 
 6 Md. 224 ; 1 Cr. & M. 235 ; 1 Mer. 384 ; 1 
 Paige, Ch. 291 ; 5 M. & W. 369. So, also, 
 to rebut a resulting trust ; 14 Johns. 1 ; 1 
 Jarm. Wills, 157. Also to show fraud, or to 
 decipher peculiar characters, or to explain 
 local or technical terms ; 8 Term, 147 ; 3 B. 
 & Ad. 728 ; 1 P. Wms. 421 ; 5 Ad. & E. 
 302; 1 Jarm. Wills, 415, 421. But where a 
 wrong name is inserted in the will by mistake 
 of the scrivener, or where the name is left 
 wholly blank, parol evidence is not admissible 
 in order to carry into effect the purpose of the 
 testator; 7 Mfetc. 188 ; 3 Bro. C. C. 311. But 
 a partial blank may be supplied ; 4 Ves. Ch. 
 680. See 1 Jarm. Wills, 349-384 ; 2 Will. 
 Ex. 1037, 1049, 1050, 1080-1082, 1164- 
 1166 ; 5 M. & W. 363. But where the re- 
 siduary legatee was described by a wrong 
 Christian name, parol evidence was received 
 to show who was intended ; 1 Paige, Ch. 291. 
 See, also, 4 Johns. Ch. 607 ; 12 Law Repor- 
 ter, 658. 
 
 Contradictory Provisions. As a gen- 
 eral rule, where there are portions of a will 
 wholly incapable of standing with other por- 
 tions (and where they cannot both be allowed 
 to operate so as to give the persons to be bene- 
 fited a joint estate in the thing), the latter 
 provision must control, as being the latest de- 
 claration of the intention of the testator ; 5 
 Ves. Ch. 247 ; 6 id. 100 ; 2 Taunt. 109 ; 2 
 My. & K. 149 ; 2 Mete. Mass. 202 ; 22 Me. 
 430 ; 6 Pet. 84 ; 1 Jarm. Wills, 472 ; L. R. 
 18 Ch. Div. 17. 
 
 See, generally, as to statutory provisions, 
 the very full and learned note, at the end of 
 Randolph & Talcott's edition of Jarm. Wills 
 (vol. 3). , ^ 
 
 In Criminal Law. The power of the 
 mind which directs the action of a raan._ 
 
 In criminal jurisprudence, the necessity of 
 the concurrence of the will is deemed so far 
 ' indispensable that, in general, those persons 
 are held not amenable as offenders against the 
 law who have merely done the act prohibited, 
 without the concurrence of the will. This has 
 reference to different classes of persons who are 
 regarded as laboring under defect of wiU, and 
 are, therefore, incapable of committing crime. 
 
 Infants, who, from want of age, are ex- 
 cused from punishment. The age of discre- 
 tion, or capacity for crime, is fixed, by the 
 common law of England, at fourteen years ; 
 1 Hale, PI. Cr. 25-29 ; 1 Hawk. PI. Cr. c. 1, 
 s. 1 ; 1 Russ. Cr. 2-6. Below the age of 
 fourteen years all persons, both male and fe- 
 male, are piresumed incapable of committing 
 felony or other crime. For, although the law 
 makes a distinction in regard to the age of 
 consent to marriage between males and fe- 
 males, fixing it at fourteen in the former and 
 twelve in the latter, no such distinction ia 
 made in regard to capacity for crime ; 1 Hale, 
 PI. Cr. 25-29. 
 
 Below the age of seven j'ears, infants are 
 presumed so incapable of any malicious de- 
 sign as not to incur the guilt of felony or 
 of any other crime. Hence an infant below 
 the age of seven years, whatever art or malice 
 he may exhibit in the act constituting the 
 corpus delicti, is nevertheless to go acquit, on 
 account of his presumed incapacity to incur 
 the guilt of crime; 1 Hawk. PI. Cr. c. 1, § 
 1 ; 1 Hale, PI. Cr. supra. 
 
 Between the ages of seven and fourteen 
 years, an infant, although presumed, prima 
 facie, incapable of incurring the guilt oi 
 crime, is, nevertheless, liable to trial and to 
 be proved guilty upon the facts of the par- 
 ticular case evincing guilty consciousness. 
 The reports abound with cases where cleai 
 evidences of criminal consciousness were 
 shown, and of very marked atrocity, from the 
 age of nine years and upward ; 1 Russ. Cr, 
 2-6 ; 1 Hale, PI. Cr. 25-29. See Infant. 
 Persons laboring under mental imbecility 
 are not amenable for crime. This class ol 
 persons has been subdivided according to the 
 character of the malady and the permanenc3 
 or continuity of its operation. An idiot, oi 
 one who suffers an entire defect of mind from 
 birth. The writers upon this subject have 
 attempted to define idiocy as an incapacitj 
 " to count twenty, to tell who was his fathei 
 or mother, or how old he was." Fitzh. N 
 B. 532 6. 
 
 One rendered non compos by sickness o: 
 other cause, and where the malady is, there 
 fore, not congenital, but accidental. This, 
 if it produce an entire defect of mind anc 
 will, either permanently or temporarily, is, 
 during its continuance, a bar to all crimina 
 responsibility; 1 Hale, PI. Cr. 26-29; ] 
 Russ. Cr. 7, and cases cited by these writers 
 Lunacy, which is much the same as the 
 last above, except that it is attended witl 
 lucid intervals, during the continuance o: 
 which the person is responsible criminally 
 But care should be exercised to discriminate 
 correctly between a lucid interval, where the 
 mind is fully restored, and a mere reraissioi 
 of the paroxysm, where the patient seemi 
 comparatively but not absolutely restored 
 Taylor, Med. Jur. 642 ; Redf . Wills, c. iii 
 sect. xii. § 14. 
 
 Persons subject to the power of others 
 This exemption from crime, in the Englist 
 
WINCHESTER, STATUTE OF 824 
 
 WISCONSIN 
 
 common law, extends to the wife while in the 
 immediate presence and under the power of 
 the husband, but not to a child or servant. 
 And in respect of the enormity of the offences 
 of treason and murder, the wife even is not 
 excused by the command of the husband ; 1 
 Hale, PI. Cr. 44, 516 ; 1 Hawk. PI. Cr. c. 
 1, s. 14. The wife is liable, too, for all 
 offences committed not in the presence of the 
 husband, and also where she is the principal 
 party concerned ; 1 Hawk. PL Cr. c. 1, § 
 14 ; 1 Hale, PI. Cr. 44, 516. The distinc- 
 tion between the wife and the child and espe- 
 cially the servant, where the relation of mas- 
 ter and servant is of a permanent character, 
 or where the law gives the master unlimited 
 control over the acts of the servant, seems 
 not to rest upon any well-founded basis in 
 present social relations. The English law 
 does not regard one in the power of robbers 
 or of an armed force of rebels as responsible, 
 criminaliter, for his acts. No more should 
 one be who is whoUy under the power of an- 
 other, as a child or servant may be : 1 Russ. 
 Cr. 14. See Ch. J. Howe, 18 St. Trials, 
 293. These questions should, in strictness, 
 be referred to the jury as matters of fact. See 
 DuKEss ; Coercion. 
 
 Ignorance of law will not excuse any one. 
 But ignorance of fact sometimes renders that 
 innocent which would otherwise be a crime : 
 as, where one kills an innocent person, mis- 
 taking him for an assassin or robber ; 1 Hale, 
 PI. Cr. c. 6 ; 1 Russ. Cr. 19, 20. 
 
 ■WINCHESTER, STATUTE OP. An 
 English statute, 13 Edw. I. relating to the 
 internal police of the kingdom. It required 
 every man to provide himself with armor to 
 aid in keeping the peace ; and if it did not 
 create the offices of high and petty constables, 
 it recognized and regulated them, and charged 
 them with duties answering somewhat to those 
 of our militia officers. The statute took its 
 name from the ancient capital of the kingdom. 
 It was repealed by the statute of 7 & 8 Geo. 
 IV. c. 27. 
 
 WINDFALL. See Timber; Woods. 
 
 ■WINDING UP. The process of liqui- 
 dating the assets of a partnership or corpora- 
 tion, for purposes of distribution. In England 
 a number of statutes, known as the Winding- 
 up Acts, have been passed to facilitate the 
 settlement of partnership aff"airs ; Lind. Part, 
 book iv. c. 3 ; Bisph. Eq. 3514, n. 
 
 ■WINDO^W. An opening made in the wall 
 of a house to admit light and air, and to en- 
 able those who are in to look out. 
 
 The owner has a right to make as many 
 windows in his house, when not built on the 
 line of his property, as he may deem proper, 
 although by so doing he may destroy the pri- 
 vacy of his neighbors ; Bacon, Abr. Actions 
 in General (B). 
 
 In cities and towns it is evident that the 
 owner of a house cannot open windows in the 
 party wall, 5. v., without the consent of the 
 owner of. the adjoining property, unless he 
 
 possesses the right of having ancient lights, 
 which see. The opening of such windows 
 and destroying the privacy of the adjoining 
 property is not, however, actionable; the 
 remedy against such encroachment is by ob- 
 structing them, without encroaching upon the 
 rights of the party who opened them, so as to 
 prevent a right from being acquired by twenty 
 years' use ; 8 Camp. 82. A bay- or bow- 
 window that projects over the land of another 
 is a nuisance, and actionable as though it was 
 an actual invasion of the soil; 107 Mass. 
 234; 16 S. &_R. 390; Wood, Nuisance, 113. 
 Where it projects beyond the street hne, it 
 has been held in Pennsylvania a purpresture, 
 and the erection of it may be restrained by 
 injunction, although authorized by a special 
 city ordinance ; 10 W. N. C. Pa. 10 ; whether 
 the window reached to the ground ; id. ; or 
 was built out of the second story; 39 Leg. 
 Int. Pa. 108. See Air; Ancient Lights ; 
 Highway ; Light. 
 
 ■WIRTA. A measure of land among the 
 Saxons, containing sixty acres. 
 
 WISBUY, LAW^S OP. See Code. 
 
 WISCONSIN. One of the states of the 
 United States. 
 
 It was originally a part of the Northwest ter- 
 ritory, and subject to the ordinance of July 13, 
 1787, establishing that territory. It was made 
 a separate territory, with the name of Wisconsin, 
 by act of congress approved April 20, 1836. 
 Said territory was afterwards divided, and the 
 territoiy of Iowa set ofif, June 12, 1838. It was 
 admitted into the Union as a state May 29, 1818, 
 with the following boundaries, — viz. : beginning 
 at the northeast corner of the state of Illinois, 
 j. e. a point in the centre of lake Michigan where 
 the line of forty-two degrees and thirty minutes 
 crosses the same, thence running with the bound- 
 ary-line of the state of Michigan, through lake 
 Michigan and Green Bay, to the mouth of Meno- 
 monee river, thence up the channel of said river 
 to the Brule River, thence up said last-mentioned 
 river to lake Brule, thence along the southern 
 shore of lake Brule in a direct line to the centre 
 of the channel between Middle and South Islands 
 in the lake of the Dessert, thence in a direct line 
 to the head-waters of the Montreal Eiver, as 
 marked upon the survey made by Captain 
 Crawm, thence down the mairf channel of Mon- 
 treal river to the middle of lake Superior, thence 
 through the centre line of lake Superior to the 
 mouth of the St. Louis river, thence up the 
 main channel of said river to the first rapids in 
 the same above the Indian village, according to 
 Nicollet's map, thence due south to the main 
 branch of the river St. Croix, thence down the 
 main channel of said river to the Mississippi, 
 thence down the centre of the main channel of 
 that river to the northwest corner of the state of 
 Illinois, thence due east with the northern 
 boundary of the state of Illinois to the place of 
 beginning. 
 
 The constitution of Wisconsin was adopted by 
 a convention at Madison, on the first day of 
 February, 1848. This constitution, as modified 
 by amendments, adopted by the people of the 
 state, is still in force. The constitution is pre- 
 faced by a bill of rights, which declares that all 
 men are born free and equal ; that there 
 shall be no slavery or involuntary servitude 
 but for crime; that there shall be freedom 
 of speech and of the press; that the rights 
 
WISCONSIN 
 
 825 
 
 WISCONSIN 
 
 of petition ought to exist; that indictment 
 must precede trial; that there should be 
 remedies for injury to property or person ; that 
 there shall be security from unreasonable searches 
 of house or person ; defines treason ; makes all 
 tenures allodial ; gives aliens the same rights of 
 property as subjects ; abolishes imprisonment 
 for debts ; forbids religious tests of fitness for 
 office and citizenship. Every male person, 
 twenty-one years old or more, who has resided 
 in the state one year next preceding an election, 
 and who is a white citizen of the United States, 
 or a white person of foreign birth who has de- 
 clared his intention to become a citizen, or a 
 person of Indian blood who has once been de- 
 clared by law of congress to be a citizen of the 
 United States, any subsequent act of congress 
 to the contrary notwithstanding, or a civilized 
 person of Indian descent not a member of any 
 tribe, is entitled to the right of suffrage. And 
 the right may be extended to other persons by 
 act of legislature approved by a majority of the 
 voters at a general election. All persons under 
 guardianship, non compos mentis, or insane, all 
 persons convicted of treason or felony, unless 
 restored to civil rights, are excluded. No 
 soldier, seaman, or marine in the army or navy 
 of the United States shall be deemed a resident 
 in consequence of being stationed within the 
 state. 
 
 The Legislative Powbb. — The Senate is to 
 be composed of not more than one-third nor less 
 than one-fourth the number of the representa- 
 tives. They are elected by the people of their 
 respective districts for one year. A senator must 
 be a qualified voter, and have lived in the state 
 one year next preceding the election. 
 
 The Assembly is to be composed of not less 
 than fifty-four and not more than one hundred 
 members, elected annually in each of the dis- 
 tricts into which the state is divided for the pur- 
 pose. The qualifications to be the same as those 
 of the senators. 
 
 An apportionment of members of both houses 
 is to be made every tenth year from 1855. The 
 members are exempt from arrest on civil process 
 during the session of the legislature and fifteen 
 days before and after. The constitution con- 
 tains the usual provisions for organization of 
 the two houses ; for giving each house the regu- 
 lation and control of the conduct of its members 
 and judgiiig of their qualification ; for keeping 
 and publishing a journal of its proceedings ; for 
 open sessions. 
 
 The Executive Power.— The Governor is 
 elected by the p*>ple, for the term of two years. 
 In case two have an equal number of votes and 
 the highest number, the two houses .of legisla- 
 ture by joint ballot designate which of the two 
 shall be governor. He must be a citizen of the 
 United States, and a qualified voter in the state. 
 The governor is commander-in-chief of the mili- 
 tary and naval forces of the state ; has power to 
 convene the legislature on extraordinary occa- 
 sions, and in case of invasion or danger from the 
 prevalence of contagious disease at the seat of 
 government, to convene them at any other suit- 
 able place within the state ; must communicate 
 to the legislature at every session the condition 
 of the state, and recommend such matters to 
 them for their consideration as he may deem ex- 
 pedient ; transacts all necessary business with 
 the officers of the government, civil and mili- 
 tary ; must expedite all such measures as may 
 be resolved upon by the legislature, and take 
 care that the laws be faithfully executed ; has 
 the power to grant reprieves, commutations, 
 
 and pardons after conviction for all offences ex- 
 cept treason and cases of impeachment, upon 
 such conditions and with such restrictions and 
 limitations as he may think proper, subject to 
 such regulations as may provided by law rela- 
 tive to the manner of applying for pardons. 
 Upon conviction for treason he has the power to 
 suspend the execution of the sentence until the 
 case Is reported to the legislature at its next 
 meeting, when the legislature may either 
 pardon or commute the sentence, direct the 
 execution of the sentence, or grant a further 
 reprieve. He must annually communicate to 
 the legislature each case of reprieve, commu- 
 tation, 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, with his rea^ 
 sons for granting the same. 
 
 The governor may also veto any bill, returning 
 it to the legislature with his objections : if it is 
 then passed by a vote of two-thirds in each 
 house, it becomes a law. 
 
 The lAeutenant- Governor is elected at the same 
 time as the governor, for the same term, and 
 must possess the same qualifications as the gov- 
 ernor. He is president of the senate, but has 
 only a casting vote. In case of the impeach- 
 ment of the governor, or of his removal from 
 office, death, inability from mental or physical 
 disease, resignation, or absence from the state, 
 the powers and duties of the office devolve upon 
 him for the residue of the term, until the gov- 
 ernor absent or impeached has returned, or the 
 disability ceases. But when the governor, with 
 the consent of the legislature, is out of the state 
 in time of war, at the head of the military force 
 thereof, he continues commander-in-chief of the 
 military forces of the state. If during a vacancy 
 in the office of governor the lieutenant-governor 
 is impeached, displaced, resign, die, or from men- 
 tal or physical disease becomes incapable of per- 
 forming the duties of his office, or is absent from 
 the state, the secretary of the state is to act as 
 governor until the vacancy is filled or the disa- 
 bility ceases. 
 
 The secretary of state, the treasurer, and the 
 attorney-general are chosen by the people for two 
 years. Sheriffs, coroners, registers of deeds, 
 and district attorneys are chosen by the people 
 in each county for two years. 
 
 The Judioial Power. — The Supreme Court 
 consists of one chief and four associate justices, 
 elected by the people for the term of ten years. 
 It is a court of appellate jurisdiction only, but 
 may issue writs of mandamus, certiorari, habeas 
 corpus, quo warranto, procedendo, and super- 
 sedeas. 
 
 The OircuU Court is composed of judges elected 
 one from each judicial district for the term of six 
 years, by the people. A judge must be at least 
 twenty-five years old, a citizen of the United 
 States, and a qualified elector. Two terms of 
 the court are to be held by the judges annually 
 in each county, and special law terms also as the 
 statutes may provide. This court has original 
 jurisdiction of all civil and criminal matters, and 
 appellate jurisdiction from all inferior courts 
 and tribunals, and a supei-visoiy power over the 
 same. 
 
 County Courts are held in each county. Their 
 jurisdiction extends to the probate of wills, and 
 granting letters testamentary and of administra- 
 tion on the estates of all persons deceased, who 
 were at the time of their decease inhabitants of 
 or residents in the same county, and of all who 
 die without the state having any estate to be 
 administered within such county ; to all matters 
 
WITCHCRAFT 
 
 826 
 
 WITHERNAM 
 
 relating to the settlement of estates of deceased 
 persons and of minors and others under guar- 
 dianship ; and to all cases of trusts created by 
 will admitted to probate in such court; and such 
 other jurisdiction as may be conferred by law. 
 
 Justices of the Peace are elected in each town 
 for two years, by the people. They have a gen- 
 eral juMsdlction in civil cases arising from con- 
 tracts, injury to persons where personal property 
 is sought to be recovered, of forcible entry and 
 detainer, and to recover statute penalties where 
 the amount involved does not exceed one hun- 
 dred dollars, with an appellate jarisdicfion to the 
 circuit or county court. They have a criminal 
 jurisdiction concurrent with the circuit court 
 where the fine Imposed is less than one hundred 
 dollars. 
 
 ^W■ITCHCRAPT. Under 33 Hen. VIII. 
 C. 8, and 1 Jac. I. c. 12, the offence of witch- 
 craft, or supposed intercourse with evil spirits, 
 was punishable with death. These acts were 
 not repealed till 1736. 4 Bla. Com. 60. 
 
 WITENA-GEMOTE (spelled, also, wit- 
 tena-gemot, gewitena^gemote ; from the Saxon 
 wita, a wise man, gemote, assembly, — the as- 
 sembly of wise men). 
 
 An assembly of the great men of the king- 
 dom in the time of the Saxons, to advise and 
 assist in the government of the realm. 
 
 It was the grand council of the kingdom, 
 and was held, generally, in the open air, by 
 public notice or particular summons, in or 
 near some city or populous town. These 
 notices or summonses were issued upon de- 
 termination by the king's select council, or 
 the body met without notice, when the throne 
 was vacant, to elect a new king. Subse- 
 quently to the Norman conquest it was called 
 commune concilium regni, curia magna, and, 
 finally, parliament ; but its character had be- 
 come considerably changed. It was a court 
 of last resort, more especially for determin- 
 ing disputes between the king and his thanes, 
 and, ultimately, from all inferior tribunals. 
 Great offenders, particularly those who were 
 members of or might be summoned to the 
 king's court, were here tried. The casual 
 loss of title-deeds was supplied, and a very 
 extensive equity jurisdiction exercised. 1 
 Spence, Eq. Jur. 73-76 ; 1 Bla. Com. 147 ; 
 1 Reeve, Hist. Eng. Law, 7 ; 9 Co. Pre- 
 face. 
 
 The principal duties of the witena-gemote, 
 besides acting as high court of judicature, 
 was to elect the sovereign, assist at his coro- 
 nation, and co-operate in the enactment and 
 administration of the laws. It made trea- 
 ties jointly with the king, and aided him in 
 directing the military affairs of the kingdom. 
 Examinations into the state of chuwihes, mo- 
 nasteries, their possessions, discipline, and 
 morals, were made before this tribunal. It 
 appointed magistrates, and regulated the coin 
 of the kingdom. It also provided for levy- 
 ing upon the people all such sums as the 
 public necessities required ; and no property 
 of a freeman was, m fact, taxable without 
 the consent of the gemote. Bede, lib. 2, c. 
 5; 3 Turner, Angl.-Sax. 209; 1 Dugdale, 
 Men. 20 ; Sax. Chron. 126, 140. 
 
 WITH STRONG HAND. In Plead- 
 Ing. A technical phrase indispensable , in 
 describing a forcible entry in an indictment. 
 No other word or circumlocution will answer 
 the same purpose. 8 Term, 357. 
 
 WITHDRAWING A JUROR. An 
 
 agreement made between the parties in a suit 
 to require one of the twelve jurors impanelled 
 to try a cause to leave the jury-box ; the act 
 of leaving the box by such a juror is also 
 called the withdrawing a juror. 
 
 This arrangement usually takes place at 
 the recommendation of the judge, when it is 
 obviously improper the case should proceed 
 any further. And it seems now settled that 
 in civil cases the court has power to do this, 
 in the exercise of a sound discretion, with- 
 out the consent of the parties, instead of non- 
 suiting the plaintiff"; 8 Cow. 127. 
 
 The effect of withdrawing a juror puts an 
 end to that particular trial, and each party 
 must pay his own costs ; 3 Term, 657 ; 2 
 Dowl. 721 ; 1 Cr. M. & R. 64. In Penn- 
 sylvania, the costs abide the event of the suit; 
 Tr. & H. Pr. § 689. 
 
 But the plaintiff may bring a new suit for 
 the same cause of action ; By. & M. 402 ; 
 3 B. & Ad. 349. See 3 Chitty, Pr. 917. 
 
 In American practice, however, the same 
 cause goes over, or is continued, without im- 
 pairing the rights of either party, until the 
 next term. 
 
 Where the plaintiff, at the suggestion of the 
 judge, withdraws a juror, with the under- 
 standing of bringing the matter to a final con- 
 clusion, it amounts to an undertaking not to 
 bring an action for the same cause ; and if a 
 second action be commenced, the court will stay 
 the proceedings as against good faith ; 1 Chit, 
 Arch. Pr. 285. If, after a prisoner has pleaded 
 to an indictment, and after the jury have been 
 sworn and evidence offered, the public prosecu- 
 tor, without the consent of the prisoner, with- 
 draw a juror merely because he is unprepared 
 with his evidence, the prisoner cannot afterwards 
 be tried on the same indictment ; 3 Cai. Cas. 
 304 ; Arch. Cr. Pr. & PI. 347. 
 
 WITHDRA'WING RECORD. The 
 
 withdrawing by plaintiff's attorney of the 
 nisi prius record filed in a cause, before jury 
 is sworn, has the same effect as a motion to 
 postpone; 2 C. & P. 185; 3 Camp. 333; 
 Paine & Duer, Pr. 465. 
 
 WITHERNAM. In PracHoe. The 
 name of a writ which issues on the return 
 of elongata to an alias or pluries writ of re- 
 plevin, by which the sheriff is commanded to 
 take the defendant's own goods which may 
 be found in his bailiwick, and keep them 
 safely, not to deliver them- to the plaintiff 
 until such time as the defendant chooses to 
 submit himself and allow the distress, and 
 the whole of it to be replevied, and he is 
 thereby further commanded that he do re- 
 turn to the court in what manner he shall 
 have executed the writ ; Hamm. N. P. 463 ; 
 Co. 2d Inst. 140; Eitzh. N. B. 68, 69; 
 Grotius, 3. 2. 4. n. 1. 
 
WITHOUT DAY 
 
 827 
 
 WITNESS 
 
 WITHOtTT DAY. This signifies that 
 the cause or thing to which it relates is inde- 
 finitely adjourned : as, when a case is ad. 
 journed without day it is not again to be 
 inquired into. When the legislature adjourn 
 without day, they are not to meet again. 
 This is usually expressed in Latin, sine die. 
 
 WITHOUT IMPEACHMENT OP 
 WASTE. When a tenant for life holds the 
 land without impeachment of waste, he is, of 
 course, dispunishable for waste, whether wil- 
 ful or otherwise. But still this right must not 
 be wantonly abused so as to destroy the es- 
 tate ; and he will be enjoined from commit- 
 ting malicious waste ; Dane, Abr. c. 78, a. 14, 
 § 7 ; Bacon, Abr. Waste (N) ; 2 Eq. Cas. Abr. 
 Waste (A, pi. 8); 2 Bouvier, Inst. n. 2402. 
 See Impeachment of Waste ; Waste. 
 
 WITHOUT PREJUDICE. A phrase in- 
 troduced into negotiations leading to a com- 
 promise of a dispute, for the purpose of sav- 
 ing him who makes the offer or proposition 
 from any injury which might result from any 
 admission of liability, etc., on his part. 
 General admissions made for the purpose of 
 compromise are not admissible in evidence 
 against the party by whom made ; 1 5 Beav. 
 388. An offer made in a letter " without pre- 
 judice," and accepted ; L. R. 6 Ch. 822 ;_or 
 an admission made subject to a condition 
 which has been performed ; 19 W. E. 798 ; 
 can be used against the writer; 2 Whart. 
 Ev. § 1090. See Admissions ; Compromise. 
 
 WITHOUT RECOURSE. See Sans 
 Kecocrs ; Indorsement. 
 
 WITHOUT RESERVE. These words 
 are frequently used in conditions of sale at 
 public auction, that the property offered, or 
 to be offered, for salu, will be sold without 
 reserve. When a property is advertised to be 
 sold without reserve, if a pufier be employed 
 to bid, and actually bid at the sale_, the courts 
 will not enforce a contract against a pur- 
 chaser, into which he may have been drawn 
 by the vendor's want of faith ; 5 Madd. 34. 
 See Puffer. 
 
 WITHOUT THIS, THAT. In Plead- 
 ing. These are technical words used _ in a 
 traverse (q. v.') for the purpose of denying a 
 material fact in the preceding pleadings, 
 whether declaration, plea, replication, etc. 
 The Latin term is absque hoc (q. v.). Lawes, 
 PI. 119 ; Comyns, Dig. Pleader [G 1); 1 
 Saund. 103, n.; Ld. Raym. 641; 1 Burr. 320; 
 1 Chitty, PI. 576, note a. 
 
 WITNESS (Anglo-Saxon witan, to 
 know). One who testifies to what he 
 ■knows. One who testifies under oath to 
 something which he knows at first hand. 1 
 Greenl. Ev. §§ 98, 328. 
 
 One who is called upon to be present at a 
 transaction, as, a wedding, or the making of 
 ■a will When a person signs his name to a 
 written instrument, to signify that the same 
 was executed in his presence, he is caUed an 
 attesting witness. 
 
 The principal rules relating to witnesses 
 are the same in civil and in criminal cases, 
 and the same in all the courts, as well in 
 those various courts whose forms of proceed- 
 ing are borrowed from the civil law, as in 
 those of the common law ; 8 Greenl. Ev. §§ 
 249, 402; 2 Ves. Ch. 41 ; 17 Mass. 303; 
 4 T. B. Monr. 20, 157. 
 
 As TO THE Competency of Witnesses. 
 All persons, of whatever nation, may be wit- 
 nesses ; Bacon, Abr. Evidence (A) ; Jacob, 
 Law Diet. Evidence. But in saying this we 
 must, of course, except such as are excluded 
 by the very definition of the term ; and we 
 have seen it to be essential that a witness 
 should qualify himself by taking an oath. 
 Therefore, all who cannot understand the na- 
 ture and obligation of an oath, or whose 
 religious belief is so defective as to nullify 
 and render it nugatory, or whose crimes have 
 been such as to indicate an extreme insensi- 
 bility to its sanctions, are excluded. And, ac- 
 cordingly, the following classes of persons have 
 been pronounced by the common law to be in- 
 competent; 5 Mas. 18. See Oath. 
 
 Infants so young as to be unable to appre- 
 ciate the nature and binding quality of an 
 oath. A child under the age of fourteen is 
 presumed incapable until capacity be shown, 
 but the law fixes no limit of age which will 
 of itself exclude. Whenever a child displays 
 sufiicient intelligence to observe and to nar- 
 rate, it can be admitted to testify upon a due 
 sense of the obligation of an oath being 
 shown ; 7 C. & P. 320 ;' 2 Brewst. 404. See 
 63 Ala. 53 ; s. c. 35 Am. Rep. 4, note. A 
 child five years old has been admitted to tes- 
 tify ; 1 Greenl. Ev. § 367 ; 1 Phill. Ev. with 
 Cowen and Hill's notes, 3d ed. 4 ; 3 C. & P. 
 598 ; 1 Mood. 86 ; 10 Mass. 225 ; 8 Johns. 98. 
 The law presumes that all witnesses tendered 
 in a court of justice are not only competent 
 but credible. If a witness is incompetent, 
 this must be shown by the party objecting to 
 him ; if he is not credible, this must be shown 
 either from his examination, or by impeaching 
 evidence aliunde ; 1 Whart. Ev. § 392. 
 
 Idiots, lunatics, intoxicated persons, and, 
 generally, those who labor under such priva<- 
 tion or imbecility of mind that they cannot 
 understand the nature and obligation of an 
 oath. The competency of such is restored 
 with the recovery or acquisition of this power ; 
 10 Johns. 362; 28 Conn. 177; 16 Vt. 474; 
 7 Wheat. 453; 2 Leach, 482. And so 
 a lunatic in a lucid interval may testify ; 1 
 Greenl. Ev. § 365. Persons deaf and dumb 
 from their birth are presumed to come within 
 this principle of exclusion until the contrary 
 be shown ; 1 Greenl. Ev. § 366. See 1 Leach, 
 455; 3 C. &P. 127; 8 Conn. 93; 14 Mass. 
 207; 5 Blackf. 295. A witness unable to 
 speak or hear is not incompetent, but may give 
 his evidence by writing or by signs, or in any 
 other manner in which he can make it intelli- 
 gible; Steph. Ev. art. 107; see 11 Cush. 
 417. A person in a state of intoxication can- 
 not be admitted as a witness ; 15 S. & B. 
 
WITNESS 
 
 828 
 
 WITNESS 
 
 235. See Kay, Med. Jur. c. 22, §§ 300-311 ; 
 16 Johns. 143. Deficiency in perception 
 must go to the capacity of perceiving the mat- 
 ter in dispute, in order to operate as an ex- 
 clusion, hence a blind man can testify to what 
 he has heard, and a deaf man to what he has 
 seen ; 1 Whart. Ev. § 401. 
 
 Such as are insensible to the obligation of 
 an oath, from defect of religious sentiment or 
 belief. Atheists, and persons disbelieving in 
 any system of divine rewards and punish- 
 ments, are of this class. It is reckoned suffi- 
 cient qualification in this particular if one be- 
 lieve in a God and that he will reward and 
 punish us according to our deserts. It is 
 enough to believe that such punishment visits 
 us in this world only; 1 Greenl. Ev. § 369; 
 5 Mas. 18; 14 Mass. 184; 26 Penn. 274; 1 
 Swan, 44 ; 16 Ohio, 121 ; 7 Conn. 66. 
 
 It matters not, so far as mere competency is 
 concerned, that a witness should believe in 
 one God, or in one God rather than another, 
 or should hold any particular form of relig- 
 ious belief, provided only that he brings him- 
 self within the rule above laid down. And, 
 therefore, the oath may be administered in 
 any form whatever, and with any ceremonies 
 whatever, that wiU bind the conscience of the 
 witness; 1 Greenl. Ev. § 371 ; 1 Atk. 21; 
 Willes, 538; 1 Sm. Lead. Gas. 739. By 
 statute in England and in most of the United 
 States, religious disbelief no longer disquali- 
 fies, provision being made for an affirmation 
 instead, and the witness, if testifying falsely, 
 being subject to the penalties of perjury ; 
 Whart. Ev. § 395, n. . 
 
 Persons infamous, i. e, those who have 
 committed and been legally convicted of 
 crimes the nature and magnitude of which 
 show them to be insensible to the obligation 
 of an oath. See Infamy. Such crimes are 
 enumerated under the heads of treason, fel- 
 ony, and the crimen falsi ; 1 Greenl. Ev. § 
 373 ; 2 Dods. Adm. 191. See Crimen 
 Falsi. 
 
 The only method of establishing infamy is 
 by producing the record of conviction. It is 
 not even sufficient to show an admission of 
 guilt by the witness himself; 9 Cow. 707 ; 2 
 Mass. 108 ; 97 id. 687 ; 2 Mart. La. N. s. 
 466 ; but in England a witness may be asked 
 whether he has been convicted, etc. ; Steph. 
 Ev. art. 130. Pardon or the reversal of a 
 sentence restores the competency of an in- 
 famous person, unless where this disability is 
 annexed to an offence by a statute in express 
 terms ; 1 Greenl. Ev. § 378 ; 2 Salk. 513 ; 2 
 Hargr. Jurid. Arg. 221. 
 
 This exclusion on account of infamy or de- 
 fect in religious belief a,pplies only where a 
 person is offered as a witness ; 1 Best. L. 
 Rep. 347; 1 Greenl. Ev. § 874; 2 Q. B. 
 721. But wherever one is a party to the 
 suit, wishing to make affidavit in the usual 
 course of proceeding, and, in general, wher- 
 ever the law requires an oath as the condition 
 of its protection or its aid, it presumes con- 
 clusively and absolutely that all persons are 
 
 capable of an oath ; Stark. Ev. 393 ; Bacon, 
 Abr. Evidence; 1 Phill. Ev. -1-25, and 
 Cowen and Hill's Notes, nn. 1-18 ; 1 Ashm. 
 57. There is a conffict of authority as to 
 how far a foreign judgment of an infamous 
 offence disqualifies a witness. In New York, 
 he is not disqualified ; 77 N. Y. 400 ; s. c. S3 
 Am. Kep. 632, n. In Pennsylvania, he is 
 held not to be disqualified unless the record 
 of conviction be produced, and not then if he 
 has served out his term of imprisonment ; 3 
 Brewst. 461. In Massachusetts, the record is 
 admitted merely to affect his credibility ; 17- 
 Mass. 575. In New Hampshire, the witness 
 will be disqualified if the laws of his own 
 state make him so, and the crime, if com- 
 mitted in New Hampshire, would have had 
 the same effect; 10 N. H. 22. In Alabama; 
 23 Ala. 44 ; and Virginia ; 6 Gratt. 706 ; the 
 record is rejected altofrether; but not so in 
 North Carolina; 3 Hawks, 393. He is dis- 
 qualified in Nevada; 15 Nev. 64. See 
 Whart. Confl. Laws, §§ 107, 769; Whart. 
 Ev. § 397, note. 
 
 Slaves were generally held incompetent to 
 testify, by statutory provisions, in the slave 
 states, in suits between white persons ; 7 T. 
 B. Monr. 91 ; 4 Ohio, 353; 5 Litt. 171; 3 
 Harr. & J. 97 ; 1 M'Cord, 430. 
 
 When it is said that all persons may he 
 witnesses, it is not meant that all persons may 
 testify in all cases. The testimony of such 
 as are generally qualified and competent under 
 other circumstances or as to other matters is 
 sometimes excluded out of regard to their 
 special relations to the cause in issue or the 
 parties, or from some other circumstances not 
 working a general disqualification. 
 
 Parties to the record were not competent 
 witnesses, at common law, for themselves or 
 their co-suitors. Nor were they compellable 
 to testify for the adverse party ; 7 Bingh. 395 ; 
 20 Johns. 142; 21 Pick. 57; 11 Conn. 342; 
 but they were competent to do so ; although 
 one of several co-suitors could not thus be- 
 come a witness for the adversary without the 
 consent of his associates ; 1 Greenl. Ev. § 
 354 ; 12 Pet. 149 ; 5 How. 91 ; 6 Humph. 
 405. Regard was had not merely to the nom- 
 inal party to the record, but also to the real 
 party in interest ; and the former was not al- 
 lowed to testify for the adverse side without 
 the consent of the latter ; 1 Greenl. Ev. §§ 
 329-364; 16 Pick. 501 ; 20 Johns. 142; 12 
 Conn. 134. 
 
 In some jurisdictions a party had the right 
 of compelling his adversary to answer inter- 
 rogatories under oath, as also to appear and 
 testify. And, in equity, parties could reeip-. 
 rocaliy require and use each other's testi- 
 mony ; and the answer of a defendant as to 
 any matters stated in the bill was evidence in 
 his own favor ; 1 Greenl. Ev. § 329 ; 2 Story, 
 Eq. Jur. 1628; Gresl. Eq. Ev. 243. 
 
 There were other exceptions to this rule. 
 Cases where the adverse party had been guilty 
 of some fraud or other tortious and unwar- 
 rantable act of intermeddling with the com- 
 
WITNESS 
 
 829 
 
 WITNESS 
 
 plainant's goods, and no other evidence than 
 that of the complainant himself could be had 
 of the amount of damage, — cases, also, where 
 evidence of the parties was deemed essential 
 to the purposes of public justice, no other 
 evidence being attainable, — were exceptions ; 
 1 Greenl. Ev. § 348; 1 Vern. 308 ; 1 Me. 27. 
 See 12 Meto. 44 ; 8 Mich. 51 ; 10 Penn. 45. 
 
 On this same principle, persons directly 
 interested in the result of the suit (see 1n- 
 tekest), or in the record as an instrument 
 of evidence, were excluded ; and where the 
 event of the cause turned upon a question 
 which if decided one way would have rendered 
 the party offered as a witness liable, while a 
 contrary decision would have protected him, he 
 was excluded; Stark. Ev. 1730. But to this 
 rule, also, there were exceptions ; Stark. Ev. 
 1731 ; of which the case of agents testifying 
 as to matters to which their agency extended, 
 forms one ; Stark. Ev. 83-91 ; 1 Phill. Ev. 
 81-161, and Cowen and Hill's Notes, nn. 
 74-138 ; 1 Greenl. Ev. §§ 386-431. 
 
 In both England and the United States, the 
 rules of exclusion on the ground of interest 
 have been abrogated. The object of the sta- 
 tutes has been to remove all artificial re- 
 straints to competency so as to put the parties 
 upon a footing of equality with other wit- 
 nesses, both in their admissibility to testify 
 for themselves, and in their being compellable 
 to testify for others ; 21 Wall. 488 ; 22 id. 
 350. In most of the statutes, however, cases 
 are excepted where a suit is brought by or 
 against executors or administrators. In these 
 cases where one of the parties to a contract is 
 dead, the survivor is not permitted to tes- 
 tify ; 66 Penn. 297 ; 74 id. 476. But the 
 exception does not make the surviving party 
 incompetent, it only precludes him from tes- 
 tifying to communications with the deceased ; 
 59 Me. 259 ; 64 111. 121._ The test is the 
 nature of the communications. The witness 
 cannot testify to personal communications 
 with the deceased party; 64 Barb. 189; 
 12 Gray, 459 ; but it has been held that if 
 documents can be proved by independent 
 evidence, the case is not within the excep- 
 tion; 21 Mich. 364. If the suit is brought 
 against co-defendants, of whom only one_ is 
 dead, when the contract was made either with 
 the living co-defendants, or with the living 
 and dead concurrently, the case is not within 
 the exception; 9 Allen, 144; 22 Ohio St. 
 208. But when an action was brought against 
 three partners, one of whom subsequently died, 
 and his executors were substituted, the plain- 
 tiff is not a competent witness as to anything 
 which occurred during the lifetime of the de- 
 ceased partner, although the lattermay have 
 taken no part in the contract on which the ac- 
 tion was brought ; 87 Penn. 111. 
 
 Under these statutes, which confine the ex- 
 ception to suits against executors and ad- 
 mmistrators, the death of an agent of one 
 party, through whom the contract was made, 
 does not prevent the surviving party from tes- 
 
 tifying to the contract; 2 W. N. C. (Pa.) 665; 
 but under statutes which exclude the surviv- 
 ing party to a contract, the death of a con- 
 tracting agent excludes the surviving party 
 who contracted with him ; 26 Wise. 500. 
 Unless the exception expressly covers all 
 suits against executors and administrators, it 
 does not exclude the plaintiff from proving 
 nxatters occurring since the death of the party 
 of whom the defendant is executor; 48 N. 
 H. 90. The exception in statutes where the 
 exclusion relates only to the surviving party 
 in contracts, does not include torts ; 60 Mo. 
 214. When the deposition of a deceased 
 party afterwards is put in evidence, the other 
 party being still living, such other party 
 should be admitted as a witness in reply ; 52 
 Ga. 385. 
 
 Husband and wife were excluded at com- 
 mon law from giving testimony for or against 
 each other when either was a party to the suit 
 or interested. And neither was competent to 
 prove a fact directly tending to criminate the 
 other. This rule was founded partly on their 
 identity of interest, and partly, perhaps 
 chiefly, on the policy of the law which aims 
 to protect the confidence between man and 
 wife that is essential to the comfort of the 
 married relation, and, through that, to the 
 good order of society. Whether or not the 
 disability of husband or wife may be re- 
 moved bv consent of the other is mattter of 
 dispute ;' 1 Ves. Ch. 49 ; 4 Term, 679 ; 3 C. 
 & P. 551 ; 1 Greenl. Ev. § 340. In England, 
 by Stat. 16 & 17 Vict. c. 83, consent removes 
 the disability ; Whart. Ev. § 428. But it is 
 not removed by death, nor by the dissolution 
 of the marriage relation, so far as respects 
 information derived confidentially during 
 marital intercourse ; 47 N. H. 100. 
 
 The rule is not ordinarily affected by stat- 
 utes permitting husband or wife to testify for 
 or against each other ; 60 Barb. 527 ; nor 
 does the statute as to the evidence of parties 
 in interest generally affect their common-law 
 incapacity to testify; 18 Wall. 452. 
 
 Some exceptions to this rule ; 1 Greenl. Ev. 
 § 343 ; are admitted out of necessity for the 
 protection of husband and wife against each 
 other, and for the sake of public justice, as in 
 prosecutions for violence committed by either 
 of them upon the other; see Bacon, Abr. 
 Evidence (A) ; 1 Greenl. Ev. §§ 334-347 ; 1 
 Phill. Ev. 69-81, and Cowen and Hill's 
 Notes, nn. 53-74 ; 1 Ves. Ch. 49 ; Ky. & M. 
 253. 
 
 Parties to negotiable instruments are, in 
 some jurisdictions, held incompetent to inval- 
 idate these instruments to which they have 
 given currency by their signature. _ Such 
 seems to be the prevailing, but not universal, 
 rule in the United States ; while in England 
 such testimony is admitted, the objection going 
 only to its credibility ; 1 Greenl. Ev. §§ 383- 
 386, note; 1 Term, 296; 9 Mete. 471; 12 
 Pet. 149 ; 3 How. 73 ; 5 N. H. 147 ; 4 Me. 
 191, 374; 20 Penn. 469; 24 Vt. 459 i 18 
 
WITNESS 
 
 830 
 
 WITNESS 
 
 Ohio, 579; 1 Miss. 541; § Band. 316 ; 1 
 Conn. 260; 3 M'Cord, 71 ; 4 Tex 371; 3 
 Harr. & J. 172 ; 2 Harr. N. J. 192. . 
 
 And, finally, there are certain confidential 
 communications; 1 Greenl. Ev. §§ 286-255; 
 to -which the recipient of them, from general 
 considerations of policy, is not allowed to tes- 
 tify. See COTSTIDENTIAL COMMUNICA- 
 TIONS. 
 
 Judges are not compellable to testify to 
 •what occurred in their consultations ; but they 
 may be examined as to what took place before 
 them on trial in order to identify the case, or 
 prove the testimony of a witness ; 1 Whart. 
 Ev. § 600; see 4 Sandf. 120; but in England 
 there is a doubt as to the latter proposition ; 
 Steph. Ev. art. Ill ; and it is said that in 
 England a barrister cannot be compelled to 
 testify as to what he said in court in his char- 
 acter of barrister ; id. 
 
 Persons in possession of secrets of state or 
 matters the disclosure of which would be pre- 
 judicial to the public interests, are not allowed 
 to testify thereto; 1 Greenl. Ev. §§ 250- 
 252 (A). 
 
 Grand jurors and persons present before a 
 grand jury ; 1 Greenl. Ev. § 252 ; are not 
 permitted to testify to the proceedings had 
 before that body ; 1 Phill. Ev. 177-184. See 
 confidkntial communications. 
 
 The means of securing the attend- 
 ance AND TESTIMONY OF WITNESSES. In 
 
 general, all persons who are competent may 
 be compelled to attend and testify. Yet it 
 would seem that experts who are permitted to 
 testify to their opinion in cases where the in- 
 ference to be drawn by the jury " is one of 
 skill and judgment," cannot be compelled to 
 give their opinion, unless in pursuance of a 
 special contract for their time and services ; 1 
 Greenl. Ev. § 310, n. 3 ; 1 C. & K. 23 ; 1 
 Whart. Ev. § 376. See Experts. 
 
 Provision has been made by statute, in 
 most if not in all of the states, for the case of 
 persons living at an inconvenient distance 
 from the place of trial, as well as for the case 
 of such as are sick or about to leave the state, 
 or otherwise likely to be put to great inconve- 
 nience by a compulsory attendance, and also 
 for such as are already in a foreign jurisdic- 
 tion, by allowing the taking of their deposi- 
 tion in writing before some magistrate near at 
 hand, to be read at the trial ; 1 Greenl. Ev. 
 §321. 
 
 In criminal cases, where the state itself is 
 the plaintiff prosecuting an offence committed 
 against the public, all persons are compellable 
 to appear and testify without any previous 
 tender of their fees ; and any bystander in 
 court may be compelled |o testify without a 
 
 Erevious summons or tender of fees ; 1 
 rreenl. Ev. § 311; 4 Cow. 49; 18 Mass. 
 501 ; 4 Cush. 249 ; 2 Lew. Cr. Cas. 259. 
 
 But in civil suits which are between man 
 and man, a party is allowed to compel the 
 Attendance and testimony of a witness only 
 on condition of a prepayment or tender of his 
 fees for travel to the place of trial, and for 
 
 one day's attendance there. This seems, ag 
 a general rule, to be the least that can be 
 tendered; 1 Greenl. Ev. § 310; 4 Johns. 
 311 ; 1 Mete. Mass. 293 ; 8 Mo. 288; 41 N. 
 H. 121. In the courts of the United States, 
 as well as in England, a witness may require 
 his fees for travel both ways ; 1 Greenl. Ev. 
 § 310; 1 Stark. Ev. 110; 6 Taunt. 88. And 
 in civil cases a person cannot be compelled to 
 testify, although he chance to be present in 
 court, unless regularly summoned and ten- 
 dered his fees ; 1 Phil. Ev., Cowen & Hill's 
 Notes, n. 338. Being in attendence in obe. 
 dience to a summons, he may, nevertheless, 
 refuse to testify from day to day, unless his 
 daily fees are paid or tendered ; 2 Phill. Ev, 
 § 376. Whether or not he may refuse to 
 attend from day to day without the prepay- 
 ment or tender of his daily fees, is a matter 
 about which there are different decisions ; 1 
 Greenl. Ev, § 310 ; 10 Vt. 493 ; 14 East, 15. 
 A witness may maintain an action against the 
 party summoning him for his fees ; Stark. 
 Ev. 1727. 
 
 Witnesses are also compellable to produce 
 papers in their custody to which either party 
 has a right as evidence, on the same prin- 
 ciple that they are required to testify what 
 they know ; 1 Greenl. Ev. § 558. But there 
 is this difference between the obligation of a 
 witness to testify to facts and the obligation 
 to produce papers — to wit : that in the latter 
 case he is not compellable to produce title- 
 deeds or other documents, belonging to him 
 or to one for whom he holds them as agent, 
 where the production would prejudice his own 
 or his principal's civil rights, — an exemption 
 which is not allowed in reference to oral 
 testimony; 1 Stark. Ev. 1722. But in all 
 cases the witness must bring the documents, 
 if regularly summoned to do so, and the court 
 wUl decide as to the question of producing 
 them. See Discovery. 
 
 This rule as to title-deeds appears to be 
 peculiar to England. In this country, it is 
 said that a witness, not a party, may be com- 
 pelled to produce any of his private papers. 
 Whether the court, on inspection, will re- 
 quire them to be put in evidence may be a 
 matter of discretion ; May's Steph. Ev. art. 
 118 n. ; see 14 Gray, 226. 
 
 The attendance flf witnesses is ordinarily 
 procured by means of a writ of subpoena ; 
 sometimes, Vhen they are in custody, by a 
 writ of habeas corpus ad testificandum; and 
 sometimes, in criminal cases, by their own 
 recognizance, either with or without sure- 
 ties; 1 Greenl. Ev. §§ 309, 312; 2 Phill. 
 Ev. 370, 374. If a witness disobey the sum- 
 mons, process of attachment for contempt 
 will issue to enfore his attendance, and an 
 action also lies against him at common law ; 
 1 Greenl. Ev. § 319; 1 Stark. Ev. 1727; 2 
 Phill. Ev, 376. 
 
 Nor can any third party intervene to pre? 
 vent the attendance of a witness. Neither 
 can he take advantage of a witness's aftendr 
 ance at the place of trial to arrest him. Wit- 
 
WITNESS 
 
 831 
 
 ■WITNESS 
 
 nesses are protected from arrest while going 
 to the place of trial, while attending there 
 for the purpose of testifying, and on their 
 return, — eundo, morando, et redeundo, — it 
 being the policy of the law as well to encou- 
 rage and facilitate, as to enforce the attend, 
 ance of witnesses ; 1 Greenl. Ev. §316; 1 
 Stark. Ev. 119. Where a non-resident of a 
 state is in attendance on a trial in a circuit 
 court of the United States as a witness in a 
 case therein pending, he is privileged from 
 service of summons in a civil action issued 
 from a state court of such state, and the pri- 
 vilege extends to a reasonable time after the 
 disposition of the cause to enable him to re- 
 turn to his own state; 11 Fed. Kep. 682. 
 See, as to immunity of witnesses from pro- 
 cess, 25 Alb. L. J. 424 ; 53 Vt. 694 ; S. C. 
 38 Am. Rep. 713. See Arrest. 
 
 As TO THE EXAMINATION OF WITNESSES. 
 
 In the common-law courts, examinations are 
 had viva voce, in open court, by questions and 
 answers. The same course is now adopted to 
 a great extent in equity and admiralty courts, 
 and others proceeding according to the forms 
 of the civil law. But the regular method of 
 examining in these last-named courts is by 
 deposition taken in writing out of court ; 2 
 Pars. Marit. Law, 721 ; 2 Conkl. Adm. Pr. 
 284; 2 Story, Eq. Jur. § 1527; 3 Greenl. 
 Ev. § 251. 
 
 On motion, in civil and criminal cases, 
 witnesses will generally be excluded from 
 the court-room while others are undergoing 
 examination in the same case : this, however, 
 is not matter of right, but within the discre- 
 tion of the court ; 1 Stark. Ev. 1733 ; 1 
 Greenl. Ev. § 432 ; 4 C. & P. 585 ; 7 id. 
 632 ; 2 Swan, 237 ; 3 Wise. 214. 
 
 Witnesses are required to testify from their 
 own knowledge and recollection. Yet they 
 are permitted to refresh their memory by re- 
 ference, while on the stand, to papers written 
 at or very near the time of the transaction in 
 question, — even though they were not written 
 by themselves and though the writing in it- 
 self would be inadmissible in evidence ; 1 
 Greenl. Ev. §§ 436-440 ; 20 Pick. 441 ; 2 C. 
 &P. 75; ION. H. 544. 
 
 The fact that the witness has no recollec- 
 tion independent of the notes, dges not ex- 
 clude his testimony as to the facts stated 
 therein, when he testifies that it has been his 
 uniform practice to make true notes of events 
 of the character noted immediately after the 
 occurrence of events, and that the memo- 
 randa are parts of such notes ; 1 Whart. Ev. 
 § 578. The notes need not be written by the 
 witness, if he has verified their accuracy 
 shortly after the event, or if they were made 
 by a clerk under his direction and in his pre- 
 sence ; laCush. 98; 37 Me. 246. The fact 
 that memoranda are not made contempora- 
 neously with the event is fatal to their admis- 
 sibility unless made when the memory is fresh ; 
 1 Whart. Ev. § 623. See Refreshing 
 . Memory. 
 
 Being once in attendance, a witness may, 
 in general, be compelled to answer all ques- 
 tions that may legally be put to him. See 
 Evidence. 
 
 Yet there are exceptions to this rule. He 
 is not compellable where the answer would 
 have a tendency to expose him to a penal lia- 
 bility or any kind of punishment, or to a 
 criminal charge or a fori'eiture of his estate. 
 1 Greenl. Ev. §§ 461, 453 ; 2 Phill. Ev. 417. 
 See Privilege. 
 
 The court, it is said, decides as to the ten- 
 dency of the answer, and will instruct the 
 witness as to his privilege ; 2 Phill. Ev. 417 ; 
 4 Gush. 694; 1 l)enio, 319. It has been held 
 that the question whether an answer would 
 have this tendency is to be determined by the 
 oath of the witness; 17 Jur. 393. And in 
 point of fact, out of the necessity of the case, 
 it is a matter which the witness may be said 
 practically to decide for himself. The witness 
 may answer if he chooses ; and if he do an- 
 swer after having been advised of his privi- 
 leges, he must answer in full ; and his answer 
 may be used in evidence against him for all 
 purposes; 1 Greenl. Ev. §§ 451, 453; 4 
 Wend. 252 ; 11 Gush. 437 ; 12 Vt. 491 ; 20 
 N. H. 540. 
 
 Whether a witness be compellable to answer 
 to his own degradation or infamy is a point 
 as to which some distinctions are to be taken : 
 a witness cannot refuse to testify simply be- 
 cause his answer would tend to disgrace him ; 
 it must be seen to have that effect certainly 
 and directly ; 1 Greenl. Ev. § 456. He can- 
 not, it would seem, refuse to give testimony 
 which is material and relevant to Ihe issue, 
 for the reason that it would disgrace him, or 
 expose him to civil liability. A witness is 
 not the sole judge whether a question put to 
 him, if answered, may tend to criminate him. 
 The court must see from the circumstances of 
 the case that there is reasonable ground to ap- 
 prehend danger to the witness from his being 
 compelled to answer, in order to excuse him. 
 But if the fact once appear, that the witness 
 is in danger, great latitude will be allowed 
 him in judging for himself the effect of any 
 particular question ; 26 Oh. Div. 294 ; 1 
 Greenl. Ev. § 4.54; 1 Whart. Ev. § 537; 1 
 Mood. & M. 108; 4 Wend. 250; 2 Ired. 
 346 ; 15 Cent. L. J. 305. 
 
 But it would appear that he may refuse 
 where the question (being one put on cross- 
 examination) is not relevant and material, 
 and does not in any way affect the credit of the 
 witness ; 1 Greenl. Ev. § 458 ; 3 Camp. 519 ; 
 13 N. H. 92 ; 1 Gray, 108. Whether a wit- 
 ness, when a question is put on the cross- 
 examination which is not relevant and ' ma- 
 terial to the issue, yet goes to affect his credit, 
 will be protected in refusing to answer, simply 
 on the ground that his answer would have a 
 direct and certain effect to disgrace him, is a 
 matter not clearly agreed upon. There is 
 good reason to hold that a witness should be 
 compelled to answer in such a case ; 1 Stark. 
 
WITNESS 
 
 832 
 
 WITNESS 
 
 Ev. 144-147 ; 2 Phillips, Ev. 421-431 ; 1 C. 
 & P. 85 ; 2 Swanst. 216 ; 2 Camp. 637 ; 3 
 Yeates, 429. 
 
 But the whole matter is one that ia largely 
 subject to the discretion of the courts ; 1 
 Greenl. Ev. §§ 431, 449. 
 
 There seems no doubt that a witness is in no 
 case competent to allege his own turpitude, 
 or to give evidence which involves his own in- 
 famy or impeaches his most solemn acts, if he 
 be otherwise qualified to testify ; Stark. Ev. 
 1737. See 15 Cent. L. J. 343 et sej., where 
 this subject is fully treated in an article from 
 the Irish Law Times. 
 
 The course of examination is, first, a direct 
 examination by the party producing the wit- 
 ness ; then, if desired, a cross-examination 
 by the adverse party, and a re-examination 
 by the party producing; 1 Starkie, Ev. 123, 
 129. As to the direct examination, the gene- 
 ral rule is that leading questions, i.e. such as 
 suggest the answer expected or desired, can- 
 not be put to a witness by the party produc- 
 ing him. But this rule has some reasonable 
 exceptions ; 1 Greenl. Ev. § 434. A court 
 of error will not reverse because a leadiiig 
 question was allowed; 87 Penn. 124; 22 N. 
 J. 372; 3 Allen, 466; contra, 99 111. 368. 
 See Leading Question. 
 
 Leading questions, however, are allowed 
 upon cross-examination. Nor are the rules 
 against questions not relevant and material to 
 the issue always enforced upon cross-exam- 
 ination, — a stage of the trial at which great 
 latitude in the form and subject-matter of ques- 
 tions is generally allowed, in order that juries 
 may be fully apprized of "the situation of 
 the witness with respect to the parties and to 
 the subject of litigation, his interest, his mo- 
 tives, his inclination and prejudices, his means 
 of obtaining correct and certain knowledge of 
 the facts to which he bears testimony, the 
 manner in which he has used those means, 
 his powers of discernment, memory, and de- 
 scription." 1 Greenl. Ev. §§ 446, 449 ; 1 
 Stark. Ev. 129. 
 
 Yet witnesses cannot be cross-examined as 
 to collateral and irrelevant matters for the 
 purpose of contradicting them by other evi- 
 dence ; 1 Greenl. Ev. § 449. Their testi- 
 mony as to such matters is always conclusive 
 against the party questioning. "If, by an 
 unfortunate or unskilful question put on 
 cross-examination, a fact be extracted which 
 need not have been evidence upon an ex- 
 amination in chief, it then becomes evidence 
 against the party so cross-examining." 1 
 Stark. Ev. 144 ; 2 Phill. Ev. 398, 429. 
 
 The right of cross-examination, which is 
 that of treating a person as the witness of 
 the opposing party and examining him by 
 leading questions, is confined by some courts 
 to matters upon which he has already been 
 examined in chief, e. g. by the courts of the 
 United States and of Pennsylvania ; 14 Pet. 
 448; 6 W. & S. 76. By others, e.g. those 
 of England, Massachusetts, and New York ; 
 1 Stark. Ev. 131; 17 Pick. 490; 1 Cow. 
 
 238; it is extended to the whole case; 1 
 Greenl. Ev. § 445. In any view, a witness 
 may be cross-examined as to his examination 
 in chief in all its bearings. Thus a subscrib- 
 ing witness to a will may be cross-examined 
 as to the testator's sanity ; 78 Penn. 326. 
 Yet a party is not permitted to introduce his 
 own case by cross-examining the witnesses 
 of his adversary^ 1 Greenl. Ev. § 447. 
 
 It is to be considered, however, that the 
 cross-examination of witnesses is a matter 
 depending much upon the discretion of the 
 court, which will sometimes permit one to 
 cross-examine his own witness, when he ap- 
 pears to be in the interest of the adverse 
 party; 1 Stark. Ev. 132; 1 Greenl. E v. § 
 447 ; 2 Phill. Ev. 403, 406. 
 
 The right of re-examin»tion extends to all 
 topics upon which a witness has been cross- 
 examined; but the witness cannot at this 
 stage, without permission of the court, be 
 questioned as to any new facts unconnected 
 with the subject of the cross-examination and 
 not tending to explain it ; 1 Stark. Ev. 150 ; 
 2 Phill. Ev. 407 ; 1 Greenl. Ev. § 467. 
 
 But the court may in all cases permit a 
 witness to be called either for further exami- 
 nation in chief, or for further cross-examina- 
 tion; Steph. Ev. art. 126; and may itself 
 recall a witness at any stage of the proceed- 
 ings, and examine or cross-examine, at its 
 discretion; 6 C. & P. 653. If new matter is 
 introduced on the re-examination, by permis- 
 sion of the court, the adverse party may fur- 
 ther cross-examine upon that matter ; Steph. 
 Ev. art. 127. 
 
 A party cannot impeach the credit of his 
 own witness. But he is sometimes, in cases 
 of hardship, permitted to contradict him by 
 other testimony ; 1 Stark. Ev. 147 ; 1 
 Greenl. Ev. §§ 442, 443. And a party bona 
 fide surprised at the unexpected testimony of 
 his witness may be permitted to interrogate 
 him, as to previous declarations alleged to 
 have been made by him, inconsistent with 
 his testimony, the object being to prove the 
 witness's recollection, and to lead him, if 
 mistaken, to review what he has said; 1 
 Whart. Ev. § 549. See infra. 
 
 The credit of an adversary's witness may 
 be impeached by cross-examination, or by 
 general evidence affecting his reputation for 
 veracity (but not by evidence of particular 
 facts which otherwise are irrelevant and im- 
 material), and by evidence of his having said 
 or done something before which is inconsis- 
 tent with his evidence at the trial. Also, of 
 course, he may be contradicted by other tes- 
 timony; Stark. Ev. p. iv. 1753; 1 Greenl. 
 Ev. §§ 401. In some states evidence may be 
 given of a witness's general character; 4 
 Wend. 257; 2 Dev. 209. See 29 Mich. 
 173. 
 
 In order to test a witness's accuracy, vera- 
 city, or credibility, he may be cross-examined 
 as to " his relations to either of the parties or 
 the subject matter in dispute ; his interest, 
 his motives, his way of lii'e, his associations, 
 
WITNESS 
 
 833 
 
 WITNESS 
 
 his habits, his prejudices, his physical defects 
 and infirmities, his mental idiosyncrasies, if 
 they affect his capacity ; his means of know- 
 ledge and powers of discernment, memory, 
 ana description — may all be relevant." 
 May's Steph. Ev. art. 129. But it has been 
 said that questions otherwise irrelevant, can- 
 not be asked for the purpose of testing his 
 moral sense; 4 Cush. 593, 
 
 Generally, where proof is to be offered 
 that a witness has said or done something in- 
 consistent with his evidence, a foundation 
 must first be laid and an opportunity for ex- 
 planation offered, by asking the witness him- 
 self whether he has not sai3 or done what it 
 is proposed to prove, specifying particulars 
 of time, place, and person ; 1 Greenl. Ev. 
 § 462 ; 2 Phill. Ev. 438 ; 2 Br. & B. 313 ; 
 16 How. 38 ; 76 Penn. 83 ; but in other 
 cases it has been held that no foundation 
 need first be laid ; 17 Mass. 160 ; 58 Mo. 35 ; 
 22 Conn. 622; 31 Vt. 443. 
 
 In England and Massachusetts, by statute, 
 the same course may be taken with a witness 
 on his examination in chief, if the judge is of 
 opinion that he is hostile (see 11 Am. L . Eev. 
 261) to the party by whom he was called, and 
 permits the question. Apart from statute 
 such evidence has not generally been consid- 
 ered as admissible; May's Steph. Ev. art. 
 131; 56N. Y. 585; 49Cal. 384; if the sole 
 effect is to discredit ; but if the purpose be to 
 show the witness he is in error, it is admis- 
 sible; 15 Ad. & E. 378 ; 53 N. Y. 230. 
 
 Proof of declarations made by a witness 
 out of court in corroboration of the testi- 
 mony given by him at the trial is, as a general 
 rule, inadmissible. But when a witness is 
 charged with having been actuated by some 
 motive prompting him to a false statement, 
 or that the story is a recent fabrication, it may 
 be shown that he made similar statements be- 
 fore any such motive existed; 68 111. 514 ; 48 
 Cal. 85 ; 11 How. 480 ; May's Steph. Ev. 
 art. 131, n. 
 
 Evidence of general good reputation may 
 be offered to support a witness, whenever his 
 credit is impeached, either by general evi- 
 dence affecting his character, or on cross- 
 examination ; 1 Stark. Ev. 1757; 1 Greenl. 
 Ev. § 469. 
 
 Modifications of the common law. 
 There have been various important modifica- 
 tions of the common law as to witnesses, in 
 respect to their competency and otherwise, as 
 well in England as in this country. A gene- 
 ral and strong tendency is manifest to do away 
 with the old objections to the competency of 
 witnesses, and to admit all persons to tes- 
 tify that can furnish to courts and juries 
 any relevant and material evidence,— leaving 
 these to judge of the credibility of the wit- 
 nesses. 
 
 England. By various statutes, 7 & 8 Will. 
 ra. c. 34, 1698 ; 8 Geo. I. c. 6, 1721 ; and 9 Geo. 
 IV. c. .33, 1828, Quakers and Moravians are al- 
 lowed to testify under affirmation, subject to tlie 
 penalties of perjury. 
 Vol. II.— 53 
 
 Incompetency from interest is done away with 
 in various specified cases, by special statutes. 
 
 By 3 & 4 Will. IV. c. 26, It is declared that no 
 witness shall be incompetent on the ground that 
 the verdict or judgment would be admissible in 
 evidence for or against liim ; and such verdict or 
 judgment for his party shall not be admissible 
 for him or any one claiming under him ; nor 
 shall a verdict or judgment against his party be 
 admissible against him or any one claiming 
 under him. . 
 
 By the statutes 6 & 7 Vict. c. 85 (1843), and 
 14 & 15 Vict. c. 99 (1851), incompetency by rea- 
 son of being a party, or one in whose behalf a 
 suit is brought or defended, or by reason of 
 crime or interest, is removed. But no person 
 charged with a criminal offence is competent or 
 compellable to give evidence for or against him- 
 self ; nor is a husband or wife of such a one 
 competent or compellable to give evidence for or 
 against the other; nor is one compellable to 
 criminate himself ; nor does the provision as to 
 parties apply to proceedings instituted on ac- 
 count of adultery or for breach of promise of 
 marriage. 
 
 By statutes of 15 & 16 Viet. c. 27 (1852), and 
 16 & 17 Vict. c. 20, similar changes are made in 
 the law of Scotland. 
 
 By statute 16 & 17 Vict. c. 83 (1853), the hus- 
 band or wife of a party, or one In whose behalf 
 a suit is brought or defended, is made admissible 
 in all cases and before all tribunals, excepting in 
 criminal proceedings or any proceeding instituted 
 in consequence of adultery : but neither is com- 
 pellable to disclose the conversation of the other 
 during marriage. 
 
 By the statute 33 & 33 Vict. c. 68, known as 
 the Evidence Turther Amendment Act (1869) ,the 
 parties to any action for breach of promise of 
 marriage, or to any proceeding instituted in con- 
 sequence of adultery, excepted in the previous 
 acts, are made competent to give evidence there- 
 in. See Taylor, Ev. § 1231. 
 
 The United States. By the Judiciary Act 
 (Sept. 24, 1789), s. 34, it is provided that the 
 laws of the several states, excepting where the 
 constitution, treaties, or statutes of the United 
 States shall otherwise require or provide, shall 
 be the rules of decision in trials at common law 
 in the courts of the United States, in cases where 
 they apply. 
 
 This is held to include the statute and common 
 law of the several states ; Curtis, Const, s. 30 a; 
 to embrace statutes relating to the law of evi- 
 dence in civil cases at common law, including 
 those passed subsequently to the Judiciary Act ; 
 M'Neil vs. Holbrook, 13 Pet. 84 ; but not to ap- 
 ply to criminal cases : as to which, the laws of 
 the several states as existing at the time this act 
 was passed are the rules of decision ; 13 How. 
 361. 
 
 In accordance with this provision, parties and 
 others formerly disqualified are allowed to tes- 
 tify in the district and circuit courts of the 
 United States, in civil cases at common law, in 
 states which admit such testimony before their 
 own courts. 
 
 By various acts of congress it Is now provided 
 that in the courts of the United States no wit- 
 ness shall be excluded in any action on account 
 of color, or in any civil action because he is a 
 party to or interested in the issue tried, provided 
 that in actions by or against executors, admin- 
 istrators, or guardians, in which judgment may 
 be rendered for or against them, neither party 
 shall be allowed to testify against the other, as 
 to any transaction with, or statement by, the tes- 
 tator, intestate, or ward, unless called to testify 
 thereto by the opposite party, or required to tes- 
 
WOLF'S HEAD 
 
 834 
 
 WORDS 
 
 tify thereto by the court. In all other respects, 
 the laws of the state in which the court Is held 
 shall be the rules of decision as to the compe- 
 tency of witnesses in the courts of the United 
 States in trials at common law, and in equity 
 and admiralty ; R. S. § 858. 
 
 A provision is made in a statute passed 24th 
 January, 1857, 11 Stat, at L. 155, as to witnesses 
 testifying before either house of congress or any 
 committee of either, — to the effect that no per- 
 son shall be held to answer criminally in any 
 court of justice, or be subject to any penalty or 
 forfeiture, for any fact or act touching which he 
 shall be required to testify as aforesaid ; and no 
 statement made or paper produced by him as 
 aforesaid shall be competent evidence against 
 him in any criminal proceeding in any court of 
 justice. By the same statute, no person so testi- 
 fying can refuse to answer, or produce a paper, 
 on the ground that it would tend to disgrace or 
 render him infamous, — a provision, however, 
 which seems to effect no change in the law ; R. 
 S. § 859. 
 
 But the subject of witnesses before legislative 
 bodies has not come within the scope of this 
 article. 
 
 In all of the United States and territories, ex- 
 cepting Delaware and New Mexico, statutes to 
 the same general effect and purpose, though dif- 
 fering in their terms from that adopted by con- 
 gress, have been enacted ; Steph. Ev. art. 107 ; 1 
 Whart. Ev. §§ 464-473. The Pennsylvania law 
 on the subject may be found in Miller on Evi- 
 dence. In many states defendants in criminal 
 cases have been allowed by statute to testify in 
 their own behalf. In some states homicide cases 
 are excepted from the provisions of the act. 
 
 'WOLF'S HEAD. In Old English Law. 
 A terra applied to outlaws. They who were 
 outlawed in old English law were said to carry 
 a wolfs head ; for if caught alive they were 
 to be brought to the king, and if they de- 
 fended themselves they jnight be slain and 
 their heads carried to the king, for they were 
 no more to be accounted of than wolves. 
 Termes de la Ley, Woolforthfod. 
 
 WOMEN. All the females of the human 
 species. All such females who have arrived 
 at the age of puberty. MuUeris appellatione 
 etiam virgo viri potens continetur. Dig. 50. 
 16. 13. 
 
 A woman by the fact of marriage invests 
 herself with the nationality of her husband ; 
 13 Op. Att. Gen. 128; 14 id. 402; contra, 
 2 Knapp, P. C. 364. See DoMlciL. 
 
 Single or unmarried women have all the 
 civil rights of men : they may, therefore, 
 enter into contracts or engagements ; sue and 
 be sued ; be trustees or guardians ; they may 
 be witnesses, and may for that purpose attest 
 all papers ; but they are, generally, not pos- 
 sessed of any political power : hence they 
 cannot vote at any election, nor can they be 
 elected representatives of the people, nor be 
 appointed to the offices of judge, sheriff, con- 
 stable, or any other office, unless expressly 
 authorized by law. 
 
 A woman is a citizen, but is not as such eligi- 
 ble to public office or entitled to vote ; 16 How. 
 287 ; 21 Wall. 163 ; nor has she any constitu- 
 tional right to practise law ; 48 Md. 28 ; 16 Wall. 
 36; id. 180; 14 Chic. L.News, 69. In Masea- 1 
 chusetts, she may vote for a school committee ; | 
 
 Rev. Stat, of Mass. 1883, p. 68 ; and the evident 
 tendency of modern legislation in this country 
 is towards the admission of women to the bar 
 decisions in Illinois, Massachusetts, Wisconsin' 
 and District of Columbia, denying this privilege' 
 having been followed recently by statutes extend- 
 ing it to them ; 55 111. 535 ; 16 Wall. 130 : 131 
 Mass. 376 ; 39 Wise. 238 ; 48 id. 693 ; see 31 Am 
 L. Reg. N. s. 728. 
 
 The act of February 15, 1879, admits to prac- 
 tice before the supreme court of the United 
 States any woman of good character who shall 
 have been a member of the bar of the highest 
 court of any state or territory, or of the supreme 
 court of the District of Columbia for three years ; 
 Suppl. to Rev. Stat. p. 410. In Connecticut 
 women may practise law under a statute of 1875 ; 
 21 Am. L. Reg. n. s. 728 ; 26 Alb. L. J. 333 ; 
 and in California they may pursue any lawful 
 business or profession ; Cons, of Cal. art. 20, § 
 18. In Illinois, a woman may be a master in 
 chancery ; 99 111. 501 ; and in Iowa, a county re- 
 corder ; Laws of 1880, c. 40 ; see 25 Alb. L. J. 
 104. In England a woman may be elected to the 
 office of sexton ; 7 Mod. 363 ; or governor of a 
 workhouse ; 3 Ld. Raym. 1014 ; or overseer ; 2 
 Term, 395 ; but a woman is not entitled to vote 
 at elections for members of parliament ; 38 L. J. 
 C. P. 35 ; Whart. Lex. ; Morse on Citizenship ; 
 she may act as postmistress in the United States. 
 See Makkiagb ; Naturalization. 
 
 VrOODGELD. In Old EngUsh Law. 
 
 To be free from the payment of money for 
 taking of wood in any forest. Co. Litt. 233. 
 a. The same as Pudzeld. 
 
 ■WOODMOTE. The court of attachment. 
 Cowel. 
 
 WOODS. A piece of land on which forest- 
 trees in great number naturally grow. Accord- 
 ing to Lord Coke, a grant to another of omnes 
 boscos suos, all his woods, will pass not only 
 all his trees, but the land on which they grow, 
 Co. Litt. 4 b. 
 
 WOOLSACK. The seat of the lord 
 chancellor of England in the house of lords, 
 being a large square bag of wool, ^ without 
 back or arms, covered with red cloth. Web- 
 ster, Diet. The judges, king's counsel-at- 
 law, and masters in chancery sit also on 
 woolsacks. The custom arose from wool 
 being a staple of Great Britain from early 
 times. Encyc. Amer. 
 
 WORDS. " Words for the most part do 
 not represent distinct thoughts, but only the 
 parts into which a thought or conception has 
 been divided by an analytic process. No 
 mistake has been productive of more confu- 
 sion, or has been more frequently taken ad- 
 vantage of for the purposes of deceit and fal- 
 lacy, than the . . . assumption that 
 each word in a sentence must have a clear and 
 complete meaning, independent of the con- 
 nection in which it stands. The sentence, 
 the clause, the proposition, are the units of 
 thought, and must be interpreted as units." 
 Lieber, Hermen. 3d ed. 14, n. ; see Sir W. 
 Hamilton, 8th sec. vol. iii. p. 133. 
 
 Words are to be understood in a proper or 
 figurative sense, and they are used both ways 
 in law. They are also used in a technical 
 sense. It is a general rule that contracts and 
 
WORDS 
 
 835 
 
 WORDS 
 
 wills shall be construed as the parties under- 
 stood them : every person, however, is pre- 
 sumed to understand the force of the words 
 he uses, and, therefore, technical words must 
 be taken according to their legal import even 
 in wills, unless the testator manifests a clear 
 intention to the contrary ; 1 Bro. C. C. 33 ; 
 8 id. 234 ; 5 Ves. Ch. 401 ; 8 id. 306. 
 
 Every one is required to use words in the 
 sense they are generally understood ; for, as 
 speech has been given to man to be a sign of 
 his thoughts for the purpose of communi- 
 cating them to others, he is bound, in treat- 
 ing with them, to use such words or signs in 
 the sense sanctioned by usage, — that is, m the 
 sense in which they themselves understand 
 them, — or else he deceives them. Heineccius, 
 Prselect. in Puffendorff, lib. 1, cap. 17, 8 2 ; 
 Heineccius, de Jure Nat.'lib. 1, § 197 ; Wolff, 
 Inst. Jur. Nat. § 798. See Bishop on the 
 Written Law. 
 
 Formerly, indeed, in cases of slander, the 
 defamatory words received the mildest inter- 
 pretation of which they were susceptible; 
 and some ludicrous decisions were the conse- 
 quence. It was gravely decided that to say 
 of a merchant, " he is a base broken rascal, 
 has broken twice, and I will make him break 
 a third time," furnished no ground for main- 
 taining an action because it might be intended 
 that he had a hernia: ne poet dar porter 
 action, car poet estre intend de hurstness de 
 belly. Lat<ui, 104. But now they are under- 
 stood in their usual signification ; Comb. 37 ; 
 Hamm. N. P. 282. See Construction; 
 Interpretation ; Libel ; Slander. Also 
 a series of legal definitions of common words 
 in late volumes of the Albany Law Journal ; 
 also the index to American Reports. 
 
 The following words and phrases have re- 
 ceived judicial construction in the cases re- 
 ferred to. 
 
 A and his atsodates. 3 N. & McC. 400. 
 
 A B, agent. 1 111. 173. 
 
 AS (seal), agmtfor CD. lBlackf.a4a, 
 
 A case. 9 Wheat. 738. 
 
 Apiece of land. F. Moore, 702. 
 
 Abbreviations, 4 C, & P. 51, 
 
 Abide. 6 N. H. 163. 
 
 Abortion (as libellous). 17 Ind. 345 ; 34 Wend. 
 354; 31 Ala. 4S; 15 Iowa, 177. 
 
 About. 3 B. & Ad. 106 ; 5 S. & B. 403 ; 56 Iowa, 
 400. 
 
 Abowt to sail. 1 Fed. Kep. 178. 
 
 Absence. 104 Mass. 371. 
 
 Absence without leave. 115 Maes. 336. 
 
 Absolute di^osal. 13 Johns. 389 ; 1 Bro. P. C. 
 476. 
 
 Abstract (as applied to records). 7 W. Va. 
 390. 
 
 Abstract (equivalent to copy). 53 Cal. i . 
 
 Accept. 4 Gill & J. 5, 139. 
 
 Accepted. 3 Hill, N. T. 583. 
 
 Accident. 37 Kans. 400. , _ „ „ „ oio 
 
 Accident beyond his control. L. B. 3 O. P. 61S. 
 
 Accompany (of documents). 106 Mass. 226. 
 
 According to their discretion. 5 Co. 100. 
 
 Account and risk. 4 East, 311. 
 
 Accountable. 9 B. I. 536. 
 
 Accountable receipt. 101 Mass. 33. 
 
 Accrue. SlW^is. 451. 
 
 Accrued: vested. 3 Disn. 15. 
 
 Acciimulated surplus. 34 N. J. 479. 
 
 Accustomed way. 41 Conn. 308. 
 
 AcquUtance. 7 C. & P. 549 ; 15 Mass. 536 ; 1 
 Exch. 131 ; 61 Vt. 105 ; s. o. 31 Am. Eep. 679. 
 
 Across. 10 Me. 390; 6 Pick. 163. 
 
 Across a country. 3 M. & G. 759. 
 
 Actual cash payment. 103 Mass. 17 : 34 Penn. 
 344. 
 
 Actual cost. 9 Gray, 326 ; 2 Mas. 48, 393. 
 
 Actual enjoyment. L. E. 4 Ex. 126. 
 
 Actual possession, 30 Iowa, 339. 
 
 Actual residence. 73 111. 16. 
 
 Actual service. 3 Curt. 533 ; 39 Vt. Ill, 498 ; 
 6 Phila. 104 ; 53 Me. 561. 
 
 Actually occupied. 1 Pick. 387. 
 
 Ad tunc et ibidem. 1 Ld. Baym. 576. 
 
 Adequate crossing. 37 Iowa, 119. 
 
 Adhere. 4 Mod. 153. 
 
 Adjacent. Cooke, 128. 
 
 Adjacent owner. 16 Hun, 380. 
 
 Adjoining. 46 Iowa, 256; 31 N. T. 389; 1 
 Term, 21. 
 
 Adjoining land. 103 Mass. 116. 
 
 Adjoining or appurtenant thereto. 101 Mass. 24, 
 
 Adjoining property. L. B. 11 Eq. 338. 
 
 Adjournment. 6 Bich. 390. 
 
 Adjudged. 69 N. T. 107. 
 
 Administer. 1 Lltt. 93, 100. 
 
 Adrift. 3 Allen, 549. 
 
 Ads. (on back of affidavit) , 6 C. L. J. 196. 
 
 Advantage, priority, or preference. 4 Wash. C . 
 C. 447. 
 
 Adverse party. 13 Hun, 633. 
 
 Advice — As per advice. Chltty, Bills, 185. 
 
 Advise. 5 L. J. N. S. Eq. 98. 
 
 Affecting. 9 Wheat. 855. 
 
 Affinity. 13 Jones & S. (N, T.) 80. 
 
 Aforesaid. 1 Ld. Baym. 256, 405; 27 Beav. 
 325 ; 3 Aik, 194 ; 2 P. Wms. 390 ; 7 Ves. 523 ; 10 
 East, 503 ; 115 Mass. 544. 
 
 After. 7 Ad. & E. 636 ; 3 Nev. & P. 197 ; 52 
 N. T. 118. 
 
 After paying debts. 1 Bro. C. C. 34 ; 1 Ves. Ch. 
 440 ; 3 Johns. Ch. 614. 
 
 Afterwards, to wit. 1 Chitty, Cr. L. 174. 
 
 Against all risks. 1 Johns. Gas. 337. 
 
 Against her will. 105 Mass. 377. 
 
 Age of manhood. Cr. & Dix. 426. 
 
 Aged, impotent, and poor people. 17 Ves. 373. 
 
 Aggrieved. 6 Mo. App. 57 ; 75 N. T. 354 ; 113 
 Mass. 282. 
 
 Aggrieved person. 25 N. J. Eq, 503, 
 
 Agree. 34 Wend. 385. 
 
 Agree to let. 103 Mass. 371. 
 
 Agree to rent or lease. 103 Mass. 394. • 
 
 J^ree to sell. 104 Mass. 363. -^ 
 
 Agreed. 1 BoUe, Ahr. 518. 
 
 Alienate. 11 Barb. 634. 
 
 All. 3P. Wms. 36; IVem. Ch.3, 341. All 
 debts due to me. 1 Mar. 541, n. ; 3 id. 4S4. All 
 and every other issue of my body. L. B. 7 Ex. 
 379 ; 8 Ex. 160. All and every the child and 
 children. L. B, 13 Eq, 38. AH I am possessed 
 of. 5 Ves. 816. All my clothes and linen what- 
 soever. 3 Bro. 311. AH my household goods 
 and furniture, except my plate'and watch. 2 
 Munf. 234. All my daughters. 1 Ch. D. 644. 
 All my estate. Cowp. 399. All my personal 
 property. 3 Ch. D. 309. All my real property; 
 18 Ves. 193. All my freehold lands. 6 Ves. 642. 
 All the personal property. 31 Minn. 370. All 
 the property. 100 Mass. 223. All and every 
 other my lands, tenements, and hereditaments. 
 8 Ves. Ch. 256 ; 3 Mass. 56 ; 2 Caines, 345. All 
 and every. 3 Dev. Eq. 488. All the inhabitants, 
 2 Conn. 20. All sorts of. 1 Holt, N. P. 69. All 
 business. 8 Wend. 498 ; 1 Taunt. 849 ; 7 B. & 
 C. 278. All faults. 118 Mass. 242. All liability. 
 18 N. T, 502, All claims and demands what- 
 
WORDS 
 
 836 
 
 WOKDS 
 
 soever. 1 Edw. Ch. 34. All persons. 11 Me. 455. 
 All my property. 81 N. T. 366. All baggage is at 
 the owner's risk. 13 Wend. 611 ; 5 Kawle, 179 ; 
 1 Pick. 53. All civil suits. 4 S. & R. 76. All the 
 rest. L. R. 5 Eq. 404 i 11 Eq. 380. All rents and 
 profits. 2 B. D. 189, 387. All claim for wages. 
 
 3 P. D. 35. All demands. 2 Caines, 320, 827 ; 15 
 Johns. 197 ; 1 Ld. Eaym. 114. All the buildings 
 thereon. 4 Mass. 110, 114 ; 7 Johns. 217. All my 
 rents. Cro. Jac. 104. All the duties, liabilities, 
 etc. 120 Mass. 400. All I am worth. 1 Bro. C. 
 C. 437. All other articles perishable in their 
 nature. 7 Cow. 202. All my estate and effects. 
 
 4 E. L. & Eq. 133. 
 Allowance. 92 U. 8. 77. 
 Allowed. 65 Me. 296. 
 Along its route. 91 U. S. 454. 
 Already incurred. 108 Mass. 33. 
 
 Also. 4 Rawle,'69; 4 B. & C. 667; 26 Beav. 
 81 ; 1 Mod. 130 ; 4 Maule & S. 60 ; 1 Salk. 239. 
 
 Ambiguity. 6 Hun, 447. 
 
 Amongst. 9 Ves. 445 ; 6 Munf. 353. 
 
 Anchor watch (in maritime law). 3 Low^ 320 ; 
 84 Md. 421 ; 5 Paige, 513. 
 
 And also. 7 Gray, 335. 
 
 And construed Or. 3 Ves. 450 ; 7 id. 454 ; 1 
 Belt, Suppl. Ves. Ch. 435 ; 3 id. 9, 43, 114 ; 1 S. 
 & R. 141. See Disjunctive Tekm ; On. 
 
 And the plaintiff doth the like. 1 111. 125. 
 
 And thereupon. 100 Mass. 195. 
 
 Annexation. 1 Me. 139. 
 
 Annexed. 68 Me. 322 ; 105 Mass. 96. 
 
 Annexed schedule, 3 App. Cas. 418, 414, 425 ; 
 
 1 Deane, 14; 2 Jur. (N. 8.) 526. 
 Announced. 56 Ind. 298. 
 
 Anntial emoluments. 1 Q. B. D. 658. 
 
 Anmtal income. 4 Abb. N. C. 317. 
 
 Annual value or income. 45 Barb. 231. 
 
 Annually. 16 Gray, 497. 
 
 Annuitants. L. R. 2 Eq. 284. 
 
 Any contract. 3 Cent. L. J. 158. 
 
 Any other manner. 9 Mete. 69. 
 
 Any other matter or thing from the beginning of 
 the world. 4 Mas. 227. 
 
 Apartment. 10 Pick. 293. 
 
 Apparel. Goods and wearing apparel, In a 
 will. 8 Atk. 61. 
 
 Apparent danger. 44 Miss. 763. 
 
 Apparent possession. L. R. 6 Ex. 1. 
 
 Appendage. 21 Ean. 536 ; s. c. 30 Am. Rep. 
 447. 
 
 Appertaining. Plowd. 170 a ; Cro. Car. 57 ; 
 Cro. Eliz. 16. 
 
 Appropriate. 7 Cold. 483. 
 
 Approved. 104 Mass. 365. 
 
 Approved paper. 4 8. & E. 1 ; 20 Wend. 431 ; 
 
 2 Camp. 532. 
 
 Approving. 5 Cent. L. J. 195. 
 
 Appurtenant. 19 Kan. 408. 
 
 Are. 2 Ball & B. 333. 
 
 Arises out of. 5 Cent. L. J. 332. 
 
 Arrival. 1 Holmes, 136. 
 
 Artfid scoundrel (as libellous). 6 Bing. 451 : 
 
 8 L. J. (Old 8.) C. P. 86. j , 
 Article. 6 Blatchf. 64. 
 As. 8 Allen, 464. 
 
 As described. 4 Ch. D. 607. 
 
 As far aspossible. L. R. 3 Ex. 88. 
 
 As follows. 1 Chitty, Cr. Law, 333. 
 
 As herein described. L. R. 1 C. P. 192. 
 
 Ad his interest may happen. 13 Reporter, 293. 
 
 As nearly as the same can be conveniently done. 
 
 9 Gray, 39. 
 
 As now laid out. 101 Mass. 163. 
 
 As of right. L. K. 6 Q. B. 578. 
 
 As soon as may be — as speedily as the same can 
 be done. 15 Mass. 455 ; 116 Mass. 33. 
 
 As the law directs. L. R. 20 Eq. 310. 
 
 As they shall attain twenty-one. L. R. 4 Eq. 
 872. 
 
 .^8 this deponent believes. 2 Maule & 8. 563 
 
 As to. L. R. 5 H. L. 254. 
 
 Ass. 2 Mood. Cr. Cas. 3. 
 
 Adses— Cattle. 1 Ry. & M. 3: 2Russ.Cr.Law. 
 498. ' 
 
 Assessment. 31 Cal. 240. 
 
 Assets. 16 N. B. R. 851. 
 
 Assigned in writing. 59 Ind. 299. 
 
 Assignment, actual or potential. 5 Maule & S 
 528. 
 
 Assigns. 5 Co. 77 &. 
 
 Assume. 13 Cush. 337. 
 
 Asylum. 6 Neb. 286. 
 
 At. 50 Ala. 173 ; 6 Paige, Ch. 554 : 68 N. T. 
 450 ; 8 Ch. D. 758. 
 
 At a certain time. L. R. 10 Q. B. 371. 
 
 At and from. 1 B. & P. n. r. 33 ; 1 Caines, 
 79. 
 
 At and from apart. L. R. 1 Ex. 306 ; 5 C. P. 
 155 
 
 At and upon. 1 My. & C. 391 ; 13 Hun, 396. 
 
 At any port or places. 1 Marsh. Ins. 191. 
 
 At chambers. 133 Mass. 454. 
 
 At his will. Bacon, Abr. Mstate for lAfe and 
 Occupancy, A. 
 
 At large. 31 Kan. 613 ; 34 Ohio St. 583. 
 
 At least. 8 W. & 8. 470. 
 
 At least four months. 5 Cent. L. J. 93. 
 
 At or near. 3 B. & Ad. 453 ; 18 Beav. 330 ; 6 
 Sim. 54. 
 
 At owner's risk. L. R. 9 C. P. 325. 
 
 At par. 22Penn. 479. 
 
 At sea. 12 Gray, 601 ; 103 Mass. 241. 
 
 At such time and manner. 19 Ves. 387. 
 
 At the end of the year. 49 N. H. 169. 
 
 At the expiration of twelve months. L. R. 2 P. 
 & M. 330. 
 
 At the term. 85 111. 138. 
 
 At the termini. 38 N. J. 399. 
 
 At the wholesale factory prices. 3 Conn. 69. 
 
 At their death. L. R. 20 Eq. 343. 
 
 At twenty-one. 9 Ves. Ch. 336 ; 1 Bro. C. C. 91. 
 
 Attest. 9 M. & W. 404. 
 
 Attested copy. 119 Mass. 168. 
 
 Authority. L. R. 1 C . C. 257. 
 
 Available means. 13 N. Y. 315. 
 
 Average. 117 Mass. 623. 
 
 Average charges. 74 Penn. 181. 
 
 Bad. 127 Mass. 487 ; 9 Cent. L. J. 396. 
 
 Bad or doiibtful debts. 8 Cent. L. J. 444. 
 
 Bad woman, bad girl, or getting fat (as libel- 
 lous). 55 Ind. 265; 137 Mass. 487; 112 Mass. 
 371, 382. 
 
 Bag. Cro. Car. 511. 
 
 Baggage of passengers at the risk of owners. 19 
 Wend. 334, 251 ; 36 id. 591 ; 10 Ohio, 145. See 
 3 Ex. D. 353. 
 
 Baiting. L. R. 9 Q. B. 380. 
 
 Balance due on general account. 3 Pet. 430. 
 
 Balance of probabilities. 9 Gray, 393. 
 
 Baltic. 3 Camp. 16. 
 
 Bank money. 5 Huraphr. 140. 
 
 Bankrupt knave (as libellous). Cro. Jac. 
 585. 
 
 Bargain and sell. 4 T. B. Monr. 463. 
 
 Bar-keeper. 3 S. & R. 851. 
 
 Barley. 4 C. & P. 548. 
 
 Barn. 36 Ohio St. 430 ; 38 Iowa, 665. 
 
 Barrel. 100 Mass. 518. 
 
 Barrels. 7 Cow. 681. 
 
 Bay or harbor. 13 Gray, 257. 
 
 Beach. 41 Conn. 14; 15 Me. 237; 5 Gray, 
 335 ; 13 Gray, 257 ; 13 N. T. Supr. 357. 
 
 Beans. Bacon, Abr. Merchant, etc. I ; 1 Mood. 
 Cr. Cas. 323. 
 
 Beef. 6 W. & S. 379. 
 
 Beer shop. 7 C. L. J. 96 ; L. E. 2 Eq. 688. 
 
 Before trial. 51 111. 396. 
 
 Before the next term. 1 Binn. 76 ; 4 Teates, 
 511. 
 
WORDS 
 
 837 
 
 WORDS 
 
 Beg. 12 Hun, 131 ; 3 Abb. N. Cas. 65. 
 
 Beggarly soul (as libellous) . i Biugh. N. C, 
 92 ; 5 Scotl. 340. 
 
 Begotten — To be begotten. Co. Lltt. 20 6, and 
 n. 3 : 3 Leon. 5. 
 
 BehiUf. 65 111.273. 
 
 Being the same premises. 8 Allen, 285, 293 ; 
 134 Mass. 69, 270, 274. 
 
 Belief. 9 Gray, 274. 
 
 Believe. 3 Wend. 298 ; 5 Cush. 373. 
 
 Belonged. 23 Pick. 144. 
 
 Belonging thermato. 2 B. & Ad. 693 ; 1 H. & 
 C. 607. 
 
 Belongs — Belonging. 3 Conn. 467 ; 11 id. 240 ; 
 1 Coxe, N. J. 225 ; 2 Bingh. 76 ; Chitty, Pract. 
 475, n. 
 
 Beneficial. 30 Hun, 360. 
 
 Benefit of children. L. B. Ch. 445. 
 
 Benefit of survivorship. L. R. 7 Eq. 80. 
 
 Ben^ts of my real estate, i Teates, 33. 
 
 Benevolent purposes. 3 Mer. 17 ; Ambl. 585, u. 
 
 Bequeath. 36 Me. 211. . 
 
 Best of belief. L. B. 1 Eq. 106. 
 
 Best of his knowledge and belief. 1 Paige, Ch. 
 404 ; 3 id. 107, 213. 
 
 Best you can. 101 Mass. 470. 
 
 Bet or stakes. 81 N. T. 532. 
 
 Between. 30 N. J. Eq. 3 ; 3 Saund. 158 6, n. 6 ; 
 14 Me. 301 ; 1 Mass. 91 ; 5 Mete. Mass. 439. 
 
 Between (of dates). 7 Mete. 439 ; 120 Mass. 
 95. 
 
 Between (of persons). 113 Mass. 341. 
 
 Between (of places). 1 Mass. 91. 
 
 Between them. 3 Mer. 70. 
 
 Bicycle. 8 C. L. J. 423 ; 2 Q. B. D. 
 
 BienniaUy. 68 N. T. 479. 
 
 Big. 2 Dev. 115. 
 
 Bigamy (as libellous). 10 M. & W. 664; 4 
 Esp. 190. 
 
 Blackleg (as libellous). 27 L. J. Ex. 412 ; 16 
 M. & W. 166 ; 4 Jur. N. s. 488 ; 3 H. & N. 376. 
 
 Black list (as Ubellous). 16 Ir. C. L. K. 298; 
 8 L. T. N. s. 604 ; Ir. R. 8 C. L. 349. 
 
 Block. 124 Mass. 129. 
 
 Blubber. 1 Stor. 603. 
 
 Boarding-house, 1 Lans. 484 ; 103 Mass. 374. 
 
 Boiler. Wright Ch. Ohio, 143. 
 
 Bona fide. 1 Leigh, N. P. 326. 
 
 Book. 1 Bond, 540. 
 
 Book. 3 Camp. 35,.28, n. ; 11 East, 244. 
 
 Book debt— Book entries. 2 Miles, Penn. 101, 
 102 ; 3 Ired. 77, 443 ; 4 id. 110. 
 
 Boons. Sugd. Povr. 633, 671. 
 
 Born or to be born. E. R. 6 Ex. 291 ; 7 Ex. 271. 
 
 Bmond by surety. 5 S. & R. 329. 
 
 Bound with surety. 6 Binn. 53. 
 
 Bounded on the road. 13 Mass. 259. 
 
 Boy. 7 Baxt. 1. 
 
 Brass knucks. 3 Lea, 575. 
 
 Breach of good behavior. 2 Mart. N. S. La. 683. 
 
 Breakage or leakage and damage. L. R. 3 C. 
 P. 14. 
 
 Brick factory. 21 Pick. 35. 
 
 Bridle-road. 16 Gray, 175, 181. 
 
 British custom. L. B. 8 Q. B. 86. 
 
 Broken fellow (as libellous). Holt. 6.53. 
 
 Brother and sister. 34 Iowa, 547. 
 
 Buck. 3 Brev. 9. 
 
 Build and maintain. 21 Kan. 61. ^ .. . 
 
 Building. 13 Johns. 346 : 16 id. 14 ; 1 Mete. 
 Mass. 268 ; 9 Bingh, 305 ; 5 Mann. & G. 933 ; 7 
 C. & P. 516 ; US Mass. 481 ; 1 Ch. D. 673. 
 
 Building purposes. L. R. 5 Eq. 104. 
 
 Bunter (as libellous). 1 F. & F. 341. 
 
 Burial grmmd. 103 Mass. 104. „ ^ ^ 
 
 Burn. 1 C. & M. 541 ; 5 Cush. 427 ; 3 Ired. 
 570 ; 16 Johns. 203 ; 18 id. 115. 
 
 Burned. 110 Mass. 405. 
 
 Burning. 78 N. T. 159, 177. 
 
 Burning fluid. 24 Hun, 565. 
 
 Business. 1 Maule & S. 95 ; 3 Allen, 395. 
 
 Business hours. 18 Minn. 38. 
 
 But. IWms. Saund. 58, n. 1. 
 
 Butcher. 1 B. & Aid. 617 ; 6 W. & S. 269. 
 
 By. 78 Penn. 78. 
 
 By a stream. 3 Sumn. C. C. 170. 
 
 By act and operation of law. 3 Caines, 64. 
 By surety. 5 S. & R. 329. By a certain time. 1 
 Hill, N. T. 519 ; 3 Penn. 48. By any other means. 
 2 Co. 46. By virtue of his office. 3 Eng. C. L. 425. 
 
 By force. 40 N. T. Sup. Ct. 291. 
 
 By next November. 3 Penn. 48. 
 
 By the court. 5 Minn. 27. 
 
 By the year. 2 Miles, 303. 
 
 By whose means. 110 Mass. 310. 
 
 Calculated. 9 Cush. 170. 
 
 Calculated to deceive. 11 Cent. L. J. 74. 
 
 Canal-boat. 6 BenJ. 115. 
 
 Canon. 15 Cal. 566. 
 
 Cargo. 4 Pick. 433 ; 2 Gill & J. 134, 163 ; L. K. 
 5 Ex. 179 ; 2 Ex. D. 15. 
 
 Cargo expected to arrive. L. B. 5 Q. B. 439. 
 
 CarncH knowledge. 97 Mass. 59. 
 
 Carrying (of stock). 100 Mass. 431. 
 
 Carrying on business. 3 C. P. D. 18. 
 
 Case— Suit. 2 Murph. 320. 
 
 Cash. 28 Gratt. 165 ; 103 Mass. 17. 
 
 Casting vote. 48 Barb. 603. 
 
 CattU. 2 Buss. Cr. 498 ; 1 Buss. & R. 77 ; 3 
 East, PI. Cr. 1074; 1 Leach, 72; 2 W. Blackst. 
 721 ; 3 Mood. 3; L. R. 9 Ex. 176. 
 
 Cause of action. 6 Ir. Jur. (O. S.) 344 ; L. B. 
 5 C. P. 543 ; 6 Ex. 46 ; 8 C. P. 107 ; 3 Q. B. 340. 
 
 Cede. 1 Harr. N. J. 181. 
 
 Celebrating divine service, rite, or office. L. R. 
 7 C. P. 393. 
 
 CeUar. L. R. 9 Q. B. 42. 
 
 Ceremoniovx^manner. L. R. 6 P. C. 46. 
 
 Chamber or room. 3 Leon, 310. 
 
 Chambers. 5 Watts, 243 ; 122 Mass. 449. 
 
 Change of grade. 31 Iowa, 31. 
 
 Charge. L. B. 9 Q. B. 286. 
 
 Chargeable. 43 Vt. 617. 
 
 Charged i» execution. 4 Term, 367. 
 
 Charges, costs, and expenses. 2 Wils. 367 ; 13 
 S. & B. 79. 
 
 Charitable institutions. 65 Me. 93. 
 
 Charitable purposes. 10 C. L. J. 376. 
 
 Charities, and other public purposes. L. R. 3 
 Ch. 676. 
 
 Cheat (as libeUous) . 2 Salk. 694 ; 5 Mod. 398 ; 
 2 Stra. 1169 a. 
 
 Chest. 2 Hale, PI. Cr. 183 ; Bacon, Abr. In- 
 dictment, G 3. 
 
 Child born or to be born. L. R. 6 Ex. 291 ; 7 Ex. 
 271. 
 
 Gliildish. 4 Neb. 115. 
 
 Children. 23 Hun, 260. 
 
 Children, or their issue. 4 Ch. D. 61 ; 5 Ch. D. 
 494, 632. 
 
 Children's children. 5 Ch. D. 183. 
 
 Chad's part. 1 Poph. 148 ; 1 RoUe, 193 ; 3 id. 
 104 ; Cro. Jac. 417. 
 
 Chose in action. L. B. 1 Ex. 1. 
 
 Chromate of iron. 5 Watts, 34. 
 
 Church. L. B. 2 Adm. & E. 386. 
 
 Cider. 103 Mass. 144. 
 
 Circular. 20 Stat, at L. 360. 
 
 City officer. 30 Gratt. 34. 
 
 City purposes. 76 N. T. 475. 
 
 CivU action. 1 Binn. 197 ; 6 id. 5. 
 
 Civil snit. 4 S. & B. 76. 
 
 Claim. 16 Pet. 538, 575,^576, 604, 615. 
 
 Clear. 3 Ves. Sen. 500 ; 3 Atk. 376. 
 
 Clear annual value. 103 Mass. 149. 
 
 Clear deed. 3 W. & S. 563. 
 
 Clear "of all charges and assessments whatever. 4 
 Yeates, 386. 
 
WORDS 
 
 838 
 
 WORDS 
 
 Clear title. 105 Mass. 409. 
 
 Clerk, or servant. L. K. 1 C. C. 177 ; 3 C. C, 
 34,150. 
 
 Closed on Sunday (as used in liquor laws). 
 33 Mich. 279. 
 
 Closing an account. 7 S. & B. 138 ; 8 Pick. 
 187. 
 
 aosmg out. 43 N. T. Sup. Ct. 451. 
 
 Clothes. All my clothes and linen whatso- 
 ever. 3 Bro. C. C. 311. 
 
 Coed. 109 Mass. 384. 
 
 Coal mine. Cro. Jac. 150 ; Noy, 131 ; Gil- 
 bert, Ej. 1, 3d ed. 61 ; Roscoe, Real Act. 486. 
 
 Coasting trade. 3 Cow. 713. 
 
 C. 0. D. 59 Ind. 363 ; 3 Col. 176. 
 
 Coffer. Bacon, Abr. Ijidictment, G 3. 
 
 CohaUtation. 1 Add. Penn. 476 ; 3 id. 377 ; 3 
 Tyrwh. 76 ; 3 Cro. & J. 66. 
 
 Coin. 16 Gray, 341. 
 
 Collaborateur. L. E. 1 H. L. Sc. 336. 
 
 Colored men. 31 Tex. 67. 
 
 CoUectaUe. 8 Watts, 361. 
 
 Come to. 1 S. & K. 334 ; 3 Pet. 69, 94. 
 
 Comfortable support and maintenance. 107 
 Mass. 474, 484. 
 
 Coming into possession. L. B. 4 H. L. 85. 
 
 Commenced. 14 East, 539 ; 26 Ohio St. 467. 
 
 Commencement of the building. 36 Md. 65. 
 
 Commerce (includes intercourse by telegraph). 
 6 Nev. 101. . 
 
 Commission and guaranty. 3 Whart. 388. 
 
 Commit. 3 C. B. 465, 477. 
 
 Commodities. 13 Mass. 356 ; 123 id. 493. 
 
 CommMifilcher (as libellous). Cro. Eliz. 554. 
 
 Commxm labor (in Sunday laws). 5 Neb. 355. 
 
 Cmnpany. 103 Mass. 38. 
 
 Compensation. 15 Cal. 117. 
 
 Cmnplaint. 107 Mass. 197. 
 
 Completed. 115 Mass. 300 ; 130 id. 459. 
 
 Concealed. 13 Wheat. 486 ; 57 Me. 334. 
 
 Conclusive. 5 Binn. 387 ; 6 id. 128. 
 
 Conditional liability. 72 111. 435. 
 
 Conducting or driving. L. E. 1 Q. B. 259. 
 
 Confectionery. 135 Mass. 303. 
 
 Confiding. 5 Beav. 341; 3 Sm. & G. 280; 2 
 Jur. N. S. 898. 
 
 Congregate. 52 Ind. 531. 
 
 Connected with. 5 C. L. J. 232. 
 
 Conquest. L. B. 1 H. L. Sc. 136. 
 
 Gonsentable lines. 10 S. & E. 114. 
 
 Constant use. 105 Mass. 319. 
 
 Construction or repairs. 103 Mass. 252. 
 
 Containing by estimation. 103 Mass. 344. 
 
 Contemplated passage-way. 2 Gray, 373. 
 
 Contemplation of bankruptcy. 13 Eeporter, 397. 
 
 Contents^mknovm. S Taunt. 303. 
 
 Contiguous. 10 E. I. 304 ; 69 N. T. 191. 
 
 Contingent claims. 33 Me. 460 ; 24 id. 358. 
 
 Contingent debts. 115 Mass. 52. 
 
 Continuing offence. L. E. 8 C. P. 416. 
 
 Contraband of war. 4 Heisk. 343. 
 
 Contract in writing. 5 Ch. D. 458. 
 
 Contrary intention. L. E. 10 Eq. 376. 
 
 Contrary to law. 1 Blackf. 318. 
 
 Convene. 1 Jeb. & S. 631. 
 
 Conveniences. 1 Pears. 544 ; 21 Kans. 536. 
 
 Convenient. 24 N. J. Eq. 49. 
 
 Convenient privilege of passing. 45 Me. 381. 
 
 Convenient speed, or as soon as convenient. 1 
 Ves. 366 ; 19 id. 336, 390, n.; 25 Barb. 175. 
 
 Conveyance. 3 S. & E. 498 ; 3 Mass. 487. 
 onveyance in course of trade. L. B. 9 Ex. 35, 
 onvicted of felony. L. E. 10 Q. B. 195. 
 
 Conviction. 36 I^. J. Ch. 93 ; 3 Jur. (N. S.) 
 1137. 
 
 Coppered ship. 8 Pet. 557. 
 
 Copper-fastened. 34 E. C. L.415. 
 
 Cords (of wood) . 3 Allen, 317, 319 ; 67 Barb. 
 169. 
 
 Corporate authorities. 51 111. 17. 
 
 Correct. 65 Me. 143. 
 
 Corrupt, 1 Bentham, Ev. 351. 
 
 Coat. 3 Wash. C. C. 498. 
 
 Costs shall follow the event, 2 Ex. D. 261, 849 ; 
 
 2 C. P. D. 119, 369. 
 
 Costs to abide the event. L. B. 8 Q. B. 280 ; 3 
 Ex. D. 381. 
 
 Cottage. 15 Q. B. 227 ; 3 B. & Ad. 638. 
 
 Cotton in bales. 2 C. & P. .535. 
 
 Counting house. 1 Cr. & Dix. 274, 275 ; L. B. 
 5 C. P. 352. 
 
 County purposes. 33 Ohio St. 389 ; 70 N. C. 
 644. 
 
 Court house. 55 Mo. 181. 
 
 Court of record. 5, Ohio, 546 ; 34 Cal. 391. See 
 
 3 Wend. 267. 
 
 Court of summary jurisdiction. 3 Q. B. D. 13. 
 
 Cousins. 2 Bro. C. C. 125 ; 39 E. L. & Eq. 
 509 ; 6 D. M. & G. 68 ; 31 BeaT. 305 ; 9 Sim. 457. 
 
 Covenants. Provided always, and it is agreed, 
 that the lessor shall find great timber. Bacon, 
 Abr. Covenant, A. I oblige myself to pay so 
 much money. Hardr. 178. I am content to give 
 A ten pounds at Michaelmas, and ten pounds at 
 Lady-day. 3 Leon. 119. With usual covenants. 
 15 Ves. 528. 
 
 Cow. 8 Allen, 403. 
 
 Credible. Com. 91 ; s. o. 1 Freem. 510. 
 
 Credit. Mutual credit. 1 Atk. 228 ; 7 Term, 
 378 ; 8 Taunt. 32 ; 1 Marsh. 190. 
 
 Credit the drawer. 88 Penn. 233. 
 
 Creditor. L. B. 1 0. P. 304 ; 1 Ch. 356 ; 3 Ch. 
 795 ; 1 Ex. 91. 
 
 Creditor holding security. L. E. 10 Q. B. 485. J 
 
 Crime or offence) L. E. 5 P. C. 179. 
 
 Critic (as libellous). 1 Camp. 355, n. 
 
 Cruel and excessive. 6 C. L. J. 177. 
 
 Cruelly beat. 101 Mass. 34. 
 
 Cruise of three months. 3 Gall. 536. 
 
 Culpable neglect. 103 Mass. 287. 
 
 Cultivation. 3 N. H. 56. 
 
 Curby hock. Oliphant, Horses, 40. 
 
 Currency. 1 Ohio, 119. 
 
 Current bank money. 5 Humphr. 140. 
 
 Current lawful money. 1 Dall. 175. 
 
 Current money. 1 Dall. 136, 176. 
 
 Current rate of exchange to be added. 3 Miles, 
 442,443. 
 
 CurriMe. Anth. 114. 
 
 Customary despatch. 10 Ped. Bep. 303. 
 
 Cutting. 1 Buss. & E. 104. 
 
 Daily newspaper. 45 Cal, SO. 
 
 Damage done by any ship. L. E. 2 P. D. 163 ; 
 3 Ad. & E. 161. 
 
 Damages. L. B. 1 C. P. D. 380, 403 ; L. E. 6 
 Q. B. 729 ; 9 Q. B. 546. 
 
 Damages, costs, and expenses. 12 N. T. 277. 
 
 Damna. Bacon, Abr. Costs, L. 
 
 Dangers of the navigation. 9 Watts, 87. 
 
 Date. Co. Litt. 46 b, note 8 ; Bulstr. n. 177 ; 
 
 Style, 383 ; Comyns, Dig. Estates, G 8, Bargain 
 
 and Sale, B 8, Temps, A ; Viner, Abr. Estates, Z 
 
 fL ^^ityhG .A ' 
 
 ' Daub '(as libellous) . 6 Abb. Pr. N. s. 9, note. 
 
 Day. 9 Cent. L. J. 74. 
 
 Day of hearing. L. B. 9 Q. B. 370. 
 
 Day of the date. Co, Litt. 46 b, note 8. 
 
 Day of trial. 6 Eich. 343. 
 
 Days. Eunning days. Working days. 1 Bell, 
 Com. 577. 
 
 Days. See 46 Mo. 17 ; 53 111. 87. 
 
 Daytime. 9 Mass, 154. 
 
 De facto contract. 74 N. T. 568, 575, 
 
 Dead weight. 8 C. P. D, 443. 
 
 Deadly weapon. 4 Tex. App. 327. 
 
 Dealer. 37 Mich. 506 ; 44 Ala. 29 ; 65 Me. 380. 
 
 Dealings. 1 Mood. & M. 137 ; 3 Carr. & P. 85. 
 
 Death by his man hand. 6 Bush, 268. 
 
WORDS 
 
 839 
 
 WORDS 
 
 Death in life of "B" without leaving issue. L. 
 R. 3 Eq. 784. 
 
 Death without issue, L. B. 1 Eq. 442 ; 1 Ch 
 612. 
 Death witJumt leaving. L. R. 4 Eq. 265. 
 
 Debt (as used in the bankrupt law) Is synony- 
 mous with claim. 10 R. I. 261. 
 
 Debt. L. E. 1 H. L. 9 ; 8 C. P. 24. 
 
 Debt, claim, or demand. L. R. 9 Q. B. 883. 
 
 Debt owing or accruing. 3 C. P. D. 9. 
 
 Debts due me at my decease. 9 Sim. 16. 
 
 Debts now due. 3 Leigh, 389. See 4 Rawle, 
 307. 
 
 Decision. 13 Minn. 437.' 
 
 Declare. 3 Co. 82 b ; Go. Litt. 76 a, 290 6 ; 
 Terra, 546. 
 
 Deed. A good and sufficient deed. Wright, 
 p. 644. 
 
 Deeply indebted. 102 Mass. 273. 
 
 Defalcations (as libellous). 1 F. & F. 668. 
 
 Definitive. 1 Watts, 257. 
 
 Deliberate and premeditated, 6 Neb. 136. 
 
 Delineated. L. E. 13 Eq. 714. 
 
 Delivered. 7 Dowl. & R. 131 ; 7 Terjn, 881. 
 
 Delivery (of a letter by carrier). 11 Fed. Rep. 
 325. 
 
 Delivery in execution. L. R. 9 Ch. 329. 
 
 Demands in full . 9 S. & R. 123. 
 
 Demonstrative legacy. See 63 Penn. 312. 
 
 Depart to. 3 Maule & S. 461. 
 
 Dependency. 3 Pick. 300. 
 
 Depending. 3 Co. 47, 48 ; 7 id. 30; 9 B. & C. 
 755 ; 8 id. 635 ; 4 Bingh. 561. 
 
 Deponent believes. 3 Stra. 1309, 1226 ; 3 Burr. 
 6.55 ; 1 Wils. 331. 
 
 Depot. 24 Ohio St. 219. 
 
 Descendants. 28 Call. 233 ; 8 Gray, 101 ; 6 
 Bush, 648 ; 3 Bradf. 413 ; 35 Ga. 428 ; 3 Rich. Eq. 
 559. 
 
 Descendible freehold. 1 Jebb & Sym. 83. 
 
 Desertion. See 103 Mass. 577 ; L. R. 1 P. & M. 
 489. 
 
 Desire. 1 Caines, 84 ; 1 Bro. C. C. 489 ; Arab. 4. 
 
 Desperate adventurer (as libellous) . 7 C. B. 
 591 ; 18 L. J. C. P. 241. 
 
 Detention. 3 Pick. 74. 
 
 Devolve. 1 My. & K. 647. 
 
 Die by his own hand*. 5 Mann. & G. 639. 
 
 Die seised. 9 Ch. D. 42. 
 
 Die without issue. 1 Ch. D. 346.; 4 Ch. D. 182. 
 
 Diligent inquiry. 1 Meigs, 70. 
 
 Direction in writing. L. R. 3 C. C. 94, 
 
 Discharge. Her receipt to be sufficient dis- 
 charge. 3 Bro. C. C. 863. 
 
 Discharge of all demands. 3 Vern. 114. 
 
 Disease (in life policy) . 70 N. Y. 73. 
 
 Disfiguring. Cheves, 157. 
 
 Disgraceful conduct (as libellous). 4 B. & Ad. 
 870 ; i N. & M. 559. 
 
 Dishonest man (aa libellous). Skin. 124; 2 
 Show. 214 a. 
 
 Disorderly house. 11 Tex. App. 147. 
 
 Disparagement. 1 Ired. Eq. 233. 
 
 Displace (as used in shipping articles). 103 
 Mass. 68. 
 
 Dispose of. 1 Watts, 386 ; 14 Pet. 529 ; 3 Atk. 
 287 ; a Mass. 477. 
 
 Disproportionate and imreasondble. 103 Mass. 
 172. 
 
 Disguise. 46 Ala. 118, 142. 
 
 Distiller. 1 Pet. C. C. 180 ; 3 Wheat. 248. 
 
 Distillery. 45 N. T. 499. 
 
 Distinctly and definitely. 97 Mass. 494. 
 
 Distress on shore. 46 L. T. N. s. 907. 
 
 DUch. 5 Gray, 64. 
 
 Divided equally. 12 Bush, 369. 
 
 Dividend, or periodical payments. 9 Ch. D. 
 159. 
 
 Divine service. 73 Penn. 39. 
 
 Division. 4 Term, 224, 459. 
 
 Do the needful. 4 Esp. 65. 
 
 Doctor. 3 Camp. 441 ; 4 E. D. Smith, 1. 
 
 Doctoring weights (as libellous). 47 Wise. 
 659. 
 
 Domestic manufactures. 64 Penn. 100. 
 
 Domestic purposes. E. B. & E. 176; 7 Q. B, 
 D. .505. 
 
 Domeus. 4 Leon. 16. 
 
 Doth bargain and sell. 4 T. B. Monr. 463. 
 
 Down the said creek with the several meanders 
 thereof. 2 Ohio, 309. 
 
 Drain. 5 Gray, 64. 
 
 Dram. 33 Tex. 227. 
 
 Dram shop. 101 111. 136. 
 
 Drink. 67 111. 483. 
 
 Drunkard. 5 Gray, 86, 88. 
 
 Drunkenness. 133 Mass. 436. 
 
 Due. 8 Leigh, 889 ; 4 Rawle, 307 ; L. R. 13 Eq. 
 307 ; 3 Ch. D. 101. 
 
 Due AB. 2 Penn. 67. 
 
 Due A B $94 on demand. 5 Day, 337. 
 
 Due form. 18 Minn. 66. 
 
 Due notice. 57 Tenn. 454. 
 
 Due, owing, or accruing. 3 Q. B. D. 215. 
 
 Due security. Saxt. Ch. 259. 
 
 Duffing (as libellous). 10 M. & W. 361 ; 2 
 Dowl. N. s. 270. 
 
 Duly. 127 Mass. 713. 
 
 Duly honored. 7 Taunt. 164 ; 2 E. C. L.. 63. 
 
 Duly levied and assessed. 15 Minn. 479. 
 
 Dunce (as libellous). Cro. Car. 382. 
 
 During term time. 53 Me. 179. 
 
 During their lives. 103 Mass. 491. 
 
 Dwelling-house. L. R. 4 C. P. 535 ; 6 C. P. 
 337. 
 
 Dwelling place. 19 Me. 393 ; L. E. 4 Q. B. 316; 
 1 Q. B. D. 59. 
 
 Dwells. L.R.I Ex. 183. 
 
 Dying without heirs of his body. L. R. 3 H. L. 
 121. 
 
 Sach. 1 B. & C. 683 ; 4 Watts, 51 ; 10 S. & E. 
 33 
 
 Eadem. Co. Litt. 20 6. 
 
 Each his one-half. 104 Mass. 317. 
 
 Earnest (as used ^in the statute of frauds). 
 108 Mass. 54. 
 
 Earnings. 103 Mass. 236 ; 120 id. 95. 
 
 Earth. 126 Mass. 137 ; 75 N. T. 76. 
 
 Easterly. 32 Cal. 219. 
 
 Educate. 6 Heisk. 395. 
 
 Effects. 13 Ves. 39 ; 15 id. 326, 507 ; Cowp. 
 299 ; 1 Hill, So. C. 155 ; L. R. 3 P. & M. 102. Es- 
 tates and effects. 1 V. & B. 406 ; 1 East, 53 ; 1 
 Euss. & R. 66. 
 
 Eggs. 21 Alb. L. J. 860. 
 
 Ejusdem generis. 122 Mass. 575 ; 9 Mete. 258. 
 
 Eldest son. L. E.4H. L.43 ; 3 App. Cas. 698. 
 
 Embankment. 74 Penn. 362. 
 
 Emigrant laborers. 2 Mann. & G. 574, 589. 
 
 Employed by him. 11 N. T. 593. „ „ -, „ 
 
 Employed in or about the works. 2 C. P. D. 
 397. 
 
 Ended. lOS. &R. 391. 
 
 Engagement. 15 Johns. 385, 390. 
 
 Engine or instrument. L. R. 5 Q. B. 336. 
 
 Engineering purposes. 18 Minn. 108. 
 
 Enlist. 107 Mass. 284. 
 
 Enlisted. 107 Mass. 232. 
 
 Entertainment. L. R. 10 Q. B. 594. 
 
 Entertainment of the stage. L. E. 10. P. 17S. 
 
 Entertainment or amusement. L. K. 4 O. r. 
 21. 
 
 Entice. 13 Abb. Pr. N. S. 187. 
 
 Entire day. 43 Ala. 325. 
 
 Entitled. 54 Ala. 369 ; L. B- 9 Eq. 200. 
 
 Entitled in possession. L. R. 13 Eq. -J9S. 
 
 Entitled upon his father's decease. L. a. b Ji-q. 
 
WORDS 
 
 840 
 
 WORDS 
 
 Entreat. 2 Madd. 458 ; 3 V. & B. 378. 
 
 Mntry. Ill Mass. 395. 
 
 Equal to. 38 N. J. 505. 
 
 Equally. 3 Ves. 360 ; Dougl. 760 ; 9 East, 
 376. 
 
 Equally interested. 15 Minn. 519. 
 
 Equally to be divided. 1 Atk. 494 ; 1 Wile. 
 341 ; 5 Ves. 510 ; 8 S. &E. 135; 1 Des. 339. 
 
 Ereet. 63 Ind. 413. 
 
 Erections and improvements. 3 Hann. & G. 
 756, 757. 
 
 Errors excepted. 3 Bro. C. C. 366. 
 
 Establishing. 3 Madd. 306 ; 3 Cox, Cli. 387. 
 
 Estate. 3 Cra. 97 ; 3 Binn. 20; 6 Johns. 185. 
 Temporal estate. 8 Ves. 617 ; L. B. 3 Kq. 333. 
 
 Estate and effects. L. R. 9 Eq. 386. 
 
 Estate tail in possession. L. B. 5 H. L. 533. 
 
 Et al. 19 Wall. 563. 
 
 Et cetera. 105 Mass. 31 ; 4 Ch. D. 800 ; 39 
 Beav. 225 ; 11 Eq. 363. 
 
 Ment of reference. L. B. 6 Ex. 313. 
 
 Mery of them. 13 S. & B. 158. 
 
 Every son during his life. L. E. 13 Eq. 400. 
 
 Excepting. Crabb, E. P. 157. 
 
 Exclusive, of water. 63 Me. 287. 
 
 Excusable neglect. 5 C. L. J. 355, 370. 
 
 Execute. 3 Green, N. J. 350. 
 
 Executed and delivered. 101 Mass. 379. 
 
 Execution or other legal process. L. E. 11 Eq. 
 615. 
 
 Expected to arrive. L. E. 7 Q. B. 139. 
 
 Explosion. L. B. 3 Ex. 71. 
 
 Exported. L. E. 9 Q. B. 457. 
 
 Expose to sale. 75 Penn. 246. 
 
 Exposed to the danger of fire. 103 Mass. 584. - 
 
 Extend. 121 Mass. 485 ; 1 Paine, 385. 
 
 Extort. 12 Cush. 90. 
 
 Face of a judgment. 33 Iowa. 365. 
 
 Eac-similes. 7 Mann. & G. 399. 
 
 Factory. L. E. 4 Q. B. 209 ; 5 id. 19; 9 id. 
 363. ) 
 
 Factory prices. 2 Conn. 69 ; 3 Mas. 89. 
 
 Factum. 1 Leon. 310. 
 
 Fair. W. N. 1871 ; 36. 
 
 Fair and reasonable supposition of right. L. 
 B. 7 Q. B. 353. 
 
 Fair value. 34 E. L. & Eq. 328. 
 
 Faithful. 13 Pick. 303. 
 
 Falling sickness (as libellous). 1 Eolle, Abr. 
 44. 
 
 Falsely. 3 Maule & S. 379. 
 
 Families. L. E. 14 Eq. 160. 
 
 Family or next of kin. L. R. 9 Eq. 623. 
 
 Farm. 6 Term, 345 ; 9 East, 448 ; 1 My. & K. 
 571 ; 10 Sim. 299 ; 124 Mass. 71. 
 
 Feeder. 13 Pick. 50. 
 
 Felon editor (as libellous). 3 Ex. D. 15, 3.53 ; 
 47 L. J. Ex. 470 ; 36 W. E. 305 ; 37 L. T. 360, 
 819. 
 
 Meld. 97 Mass. 411. 
 
 Fifty pounds (501. ) . Sid. 151. 
 
 Fight. 73 N. C. 150. 
 
 Filing. 39 Iowa, 468 ; 35 Minn. 81. 
 
 Filing and registration. L. B. 8 Cb. 733. 
 
 FUled. 1 111. 70. 
 
 Final. Final and conclusive. SBinn. 387. 
 Pinal settlement and decree. 1 Halst. 195 ; 3 Pet. 
 464. 
 
 Mnal process. 6 Pet. 313. 
 
 F^nd. 43 N. Y. Sup. Ct. 169. 
 
 Fine. 5M. &W. ,53.5. 
 
 First-born son. 1 Ves. Sen. 390. 
 
 First cousin or cousin german. 4 My. & C. 66. 
 
 First had and obtained. 1 S. & E. 89. 
 
 First prioilege of water. 103 Mass. 453. 
 
 Fixed enqine. L. E. 6 Q. B. 661. 
 
 Fixed furniture. 6 C. & P. 6.55. 
 
 Mats. 8 W. & S. 443 ; 5 Gray, 335. 
 
 Fleeing from justice. 6 Dill. 381. 
 
 Floating debt. 71 N. T. 371 ; 33 Hun, 55. 
 
 Foot or end. L. E. 1 P. & M. 209. 
 
 For. 8 Allen, 463 ; 25 Minn. 533 ; Dougl. 
 688. 
 
 For and in consideration of dollars. 6 
 
 Vt. 411 ; 7 id. 523. 
 
 For cash. 4 Mass. 404. 
 
 For default of such issue. L. E. 7 Ex. 339. 
 
 For or in the name of or on account of. L, E. 
 2 C. C. 38. 
 
 For value received. 18 Johns. 60; 5 B. & C. 
 501. 
 
 For which he has not accounted. 4 Burr. 2136. 
 
 For whom it rnay concern. 1 Pet. 151. 
 
 Forced sale. 33 Cal. 366. 
 
 Foreign bills. 19 Johns. 146. 
 
 Foreign bonds. 4 Ch. D. 97. 
 
 Foreign part, place. 2 Gall. 4; 19 Johns. 375. 
 
 Foreign state. 5 Pet. 1. 
 
 Foreign vessel. 1 Gall. 58. 
 
 Foreign voyage. 1 Gall. 55, 143. 
 
 Foreigner. 1 Pet. 349. 
 
 Forever. 107 Mass. 591 ; Cowp. 833. 
 
 Forge. L. E. ICC. 200. 
 
 Forthwith. 1 Mood. & M. 300 ; 9 C. & P. 
 766 ; 12 Ad. cfc E. 672 ; 7 Mann. & G. 493 ; 75 
 Penn. 378 ; 14 Allen, 66 ; L. E. 6 Eq. 531 ; 7Ch. 
 D. 338. 
 
 Four months after. 9 Gray, 199. 
 
 Fourth part of house in S. Cro. Eliz. 286 ; 1 
 Stra. 695. 
 
 Forwarder, 15 Minn. 270. 
 
 Forwards and backwards. 3 B. & P. N. B. 
 434. V 
 
 Found committing. L. E. 3 C. P. 461. 
 
 Fraudulent conveyance, gift, delivery, or trans- 
 fer. L. E. 8 Ex. 26. 
 
 Fraudulent purpose. L. E. 1 C. C. 347. 
 
 Free. 1 Wheat. 335 ; 3 Salk. 637. 
 
 M-ee of average. 16 East, 214. 
 
 Free of particular average. 15 East, 559 ; Code 
 de Comm. art. 409. 
 
 Free on board a foreign ship. 3 Camp. 270. 
 
 Freehold.' L. E. 4 Eq. 378 ; 11 id. 454 ; 8 Ch. 
 171. 
 
 Freely to be enjoyed. Cowp. 353 ; 11 East, 
 220 ; 1 Q. B. 570 ; 3 id. 369. 
 
 Freight. 1 Mas. 11 ; 7 C. P. 341. 
 
 Freight money. 100 Mass. 517. 
 
 Fresh pursuit. 37 Cal. 573. 
 
 From. 2 Cow. 605, 606, n., 518 ; 34 Barb. 9 ; 
 15 Mass. 193 ; 1 S. & E. 411 ; 5 Term, 383. 
 
 From — until. L. B. 5 Ex. 296. 
 
 From and after. 9 Cra. 104 ; 4 Term, 659 ; 7 
 Ad. & E. 636 ; 3 Nev. & P. 197. 
 
 Fi-om and after payment and subject thereto. 
 L. B. 4Eq. .58; 2Ch. 644. 
 
 From and after the passing of theaet. 4Term, 
 660. 
 
 From place to place. 11 Gray, 81 ; 7 Mass. 158, 
 
 From six to eight weeks. L. R. 9 C. P. 20. 
 
 From the date. 15 S. & E. 135. 
 
 From the day of the date. Cowp. 717, 725. 
 
 From 1000 to 3000 bushels of potatoes. 4 Me. 
 497. 
 
 From thenceforth. 2 Mer. 431. 
 
 From the loading. 7 Q. B. .580, 703. 
 
 F-om time to time. 5 Ex. 6. 
 ■ Front and rear. 10 Paige, Ch. 386. 
 
 Front to the river. 8 La. N. S. 576. 
 
 Frozen snake (as libellous). 13 Q. B. 634 ; 16 
 L. J. Q. B. 306 ; 13 Jur. 695. 
 
 Fudge (as libellous) . 6 C. & P. 345. 
 
 Full age. 1 C. P. D. 195. 
 
 Full and free. 1 Wheat. 335. 
 
 Full cargo. 7 Taunt. 372 ; 15 M. & W. 737 ; 
 L. E. 3 Ex. 335 ; 1 C. P. D. 155. 
 
 Full confidence. 8 Ch. D. 540. 
 
 Full supply. 77 N. T. 427, 439. 
 
WORDS 
 
 841 
 
 WORDS 
 
 Fur. 7 Cow. 203. 
 
 Furniture. Ambl. 605 ; 3 Ves. 811 ; 4 Term, 
 
 206 ; 1 Johns. Ch. 339. Furniture at . 3 
 
 Madd. 376 ; 1 BrewBt. 462 ; 3 Minn. 234 : 124 
 Mass. 238 ; 1 Kob. N. T. 31 ; 3 P. Wms. 419 : S 
 Buss. 313. 
 
 Further. 2 D. & Ey. S98. 
 
 Further or other valuable consideration. 5 Ex. 
 83. 
 
 Future. 7 W. & S. 305 : 2 Penn. 146 ; 97 Mass. 
 255. 
 
 Fiture conveyance. 3 Penn. 146, 
 
 F'uture earnings, 115 Mass. 165. 
 
 Future increase, 3 Terg. 546. 
 
 OamWe. 3 Terg. 472. 
 
 Gambler (as libellous). 3 H. &N. 376 ; 4 Jur. 
 N. s. 488. 
 
 Garden. 97 Mass. 411. 
 
 Gas, explosion of. L. K. 3 Ex. 71. 
 
 Gelding — Horse, 3 Humphr, 323 ; 16 Kans. 19. 
 
 Gelding ; Midgling. 4 Tex. App. 219. 
 
 General average as per foreign statement. L. R. 
 10 C. P. 414. 
 
 General intent. L. R. 7 Ex. 339 ; 8 id. 160. 
 
 General law. 1 Ch. D. 576 ; 1 C. P.D. 60 : 40 
 N. J. 1, 123 ; 70 N. Y. 337, 350. 
 
 General line of buildings. L. B. 3 Q. B. 538. 
 
 Gentlemen. 3 T. & C. 683 ; 21 Jur. 153. 
 
 Gift, I give this note to A. 4 Ves. 565. I 
 return to A his bond . 3 Ves. 331. 
 
 Gift enterprise. 106 Maes. 422. 
 
 Give. 7 Johns. 258 ; 3 N. T. 153 ; 5 Me. 237. 
 
 Give andgrant. 1 Hayw. 351. 
 
 Given. 1 Harr. N. J. 286. 
 
 Giving testimony in a suit. 3 Mart. La. eond. 
 ed. 157. 
 
 Giving way. 10 Jur. 1065. 
 
 Glass, with care, this side up. 11 Pick. 41. 
 
 Gold. 3 Ex. D. 101. 
 
 Good, 4 Mete. Mass. 48 ; 5 M. & W. 535 ; 14 
 Mo. 9. 
 
 Good and lawful rnen, 1 Blackf. 396. 
 
 Good amd responsible. 45 Vt. 137. 
 
 Good and sufficient deed. Wright, Ohio, 644. 
 Good and suiiiclent warranty deed. 15 Pick. 
 546 ; 9 N. T. 535 ; 23 Minn. 137. 
 
 Good barley. 5 M. & W. 535. 
 
 Good cause. 8 Nev. 165. 
 
 Good custom cowhide. Brayt. 77. 
 
 Good faith. 1 Dak. 387. 
 
 Good jury. L. R. 5 C. P. 165 ; 5 Ex. 201. 
 
 Good moral character. 7 C. L. J. 84. 
 
 Good merchantable goods. 3 Camp. 462. 
 
 Good note. 7 Vt. 67. 
 
 Good reason. 49 Ala. 350. 
 
 Good safety. L. B. 5 C. P. 190. 
 
 Good security. 9 Johns. 43. 
 
 Good tenantable repair. HI Mass. 531. 
 
 Good title. 14 E. L. & Eq. 350. 
 
 Good work. Wright, Ohio, 471 . 
 
 Goods. 1 Ves. Jr. 237 ; Hid. 666 ; 1 Atk. 171 ; 
 3 id. 63 : 7 Taunt.'191 ; 9 East, 215 ; 5 Mas. 544 ; 
 Oro. Eliz. 386 ; 1 P. Wms. 367. 
 
 Goods and chattels. 3 Watts, 61 ; 2 B. & Aid. 
 259, .327, 335 ; 8 Co. 33 ; 6 Bingh. 363 ; 1 Ves. 
 Sen. 363 ; 1 Atk. 165. 
 
 Goods and movables. 1 Yeates, 101. 
 
 Goods at risk of seller for two months. L. E. 7 
 Q. B. 436. 
 
 Goods to arrive equal to sample, L. R. 2 C, P. 
 677. 
 
 Goods to be taken from quay. L. B. 1 C. P. 684. 
 
 Goodwill. L. B. 10 C. P. 456. 
 
 Government clerk. L. B. 7 Q. B. 700. 
 
 Government or other securities. 9 Sim. 104. 
 
 Government security. 3 Y. & C. 397. 
 
 Grammar schools, 103 Mass. 97. 
 
 Grange, Co. Litt. 5 ; Plowd. 197. 
 
 GraniU building. 130 Mass. 335. 
 
 3 Binn. 
 
 1 Rawle, 
 
 3 
 
 1 Belt, Suppl. Ves. 
 1 ; 1 Bro. C. C. 76. 
 
 Me. 489. 
 
 Grant, bargain, sell 
 377. 
 
 Grant, bargain, sell, alien, and confirm. 
 Cainee, 188 ; 7 Johns. 258. 
 
 Granulated tobacco. 1 Hugh. 336. 
 
 Gravel. 126 Mass. 177. 
 
 Great defaulter (as libellous) . 1 Jur. 830, 
 
 Greater part in Interest. 119 Mass. 583. 
 
 Greenback. 61 Ala. 383. 
 
 Grindstone. 12 Gray, 375. 
 
 Ground. 76 Penn. 376 ' 
 410. 
 
 Ground^rents. 1 Mer. 2 
 
 Guano. 109 Mass. 34. 
 
 Guest. 36 Barb. 453 : 6! 
 
 HaUt. 90 111. 59. 
 
 Habitable repair. 2 Mood. & E. 186. 
 
 Habitual drunkenness. 49 Tex. 645, 676 : 8 
 Cent. L. J. 347. 
 
 Habitual drmikard. 11 Cent. L. J. 16. 
 
 Half-mile. 9 B. & C. 774. 
 
 Handicraft. L. R. 6 Q. B. 718. 
 
 Harbor — Harbor of Boston. 9 Mete. 371, 
 
 Has bargained and sold. 4 Cow. 335. 
 
 Have. 3Benl. &D. 34. 
 
 Having. 2 Ves. 437 ; 11 Ad. & E. 373 ; 39 E. 
 C. L. 80. 
 
 Having children. 7 Terra, 332 ; 7 Ves. 453. 
 
 Having and keeping. L. E. 1 Q. B. 93. 
 
 He has removed land-marks. 10 S. & E. IS. 
 
 He is a corrupt old tory. 1 Ala. 213. 
 
 He is forsworn. 1 Caiues, 347. 
 
 He is perjured. 1 Gaines, 347 ; 3 id. 91. 
 
 He keeps false books, and I can prove it. 5 
 Johns. 476 ; 17 id. 317. 
 
 He now occupies. L. E. 9 C. P. 107. 
 
 He paying thereout. Dick. 444 ; 3 East, 590. 
 
 He shall be well satisfied. 3 Johns. 395. 
 
 He swore a false oath, and I can prove it. 3 
 Binn. 60 ; 2 Dall. 58 ; 4 Bibb, 99. 
 
 He swore a lie before the church session, and 1 
 can prove it. 1 Penn. 13. 
 
 Healer of felony (as libellous). Telv. 1.53 ; 
 Cart. 314. 
 
 Hearing of any motion. L. B. 10 C. P. 184. 
 
 Heifer, 8 Allen, 403. 
 
 Heir male, 4 Ves. 326, 794. 
 
 Heirs of the wife. S Yerg. 96. 
 
 Heirs or next of kin. 9 Ch. D. 607. 
 
 Henceforth. 8 S. & B. 133. 
 
 Her. 1 Des. 353. 
 
 Her increase. 1 Ired. 460. 
 
 Her part aforesaid. 4 Dowl. & E. 387. 
 
 Hereafter. 15 N. T. 595 ; 9 Phila. 479 ; 106 
 Mass. 269. 
 
 Hereafter constructed. 115 Mass. 400. 
 
 Here^ settled. W. N. (1872), pt. 2, 26. 
 
 Hereditaments. Co. Litt. 6 a, 19 6. 
 
 Hereinafter — Hereinbefore. 1 Sim. 173. 
 
 Hermaphrodite (as libellous). 15 Ohio, 319; 
 3 Lev. 233 ; 3 Salk. 328; Ereem. 277; 3 Show. 
 118. 
 
 Hides. 7 Cow. 203. 
 
 High school, 123 Mass. 304. 
 
 High watermark. 18 Cal. 11. 
 
 Highway. L. E. 1 C. C. 237. 
 
 Highway repairable by inhabitants at large. L. 
 E. 6 Q. B. 181 ; 19 Eq. 375. 
 
 High seas. 1 Euss. & E. 343 ; 2 Leach, 109 ; 
 3 Mas. 290. 
 
 Mm or his. 2 Ves. 213 ; 5 B. & Ad. 689. 
 
 Hire. 11 N. Y. 593. 
 
 Hireling murderer (as libellous). 32 Tex. 
 .594. 
 
 Hiring, 6 Term, 452. 
 
 Hog. 2 S. C. 31. 
 
 Hold. 7 W. Va. 389. 
 
 Holding shares. 3 Q. B. D. 442. 
 
 Holiday. 4 CI. & F. 234 ; 14 Bankr. Eeg. 388. 
 
WORDS 
 
 842 
 
 WORDS 
 
 Home. 19 Me. 393, 375 ; 134 MasB. 147. 
 
 JBomeport. 4 Dill. 439. 
 
 Eimest lawyer (as libellous). 4 M. & W. 
 446 ; 7 Dowl. 310 ; 11 Mod. 86 ; Holb. 425 ; Hob. 
 315 ; Poph. 139. 
 
 Sonorary. 81 N. T. 355. 
 
 Horse. 3 111. 304 ; 3 Hun, 333. 
 
 Bbrae— Gelding, 3 Humpbr. 333; 16 Kans. 
 19. 
 
 Sbrae, Mares, and Colts — Cattle. 3 East, PI. 
 Cr.l074; 1 Leach, 73. 
 
 horticulture. 7 Heisk. 510. 
 
 Hospital. L. E. 14 Eq. 330 ; 1 Ex. 368 ; 3 id. 
 253. 
 
 Hotel. 3 Ch. D. 457. 
 
 Hotel purposes. 105 Mass. 341. 
 
 Hmise. 2 Term, 503 ; L. B. 1 Ch. 281 ; 13 
 Johns. 531 ; 38 Beav. 104 ; 4 Penn. 93 ; 3 Ired. 
 Eq. 450 ; 2 Eq. Cas. Abr. 334. 
 
 Htmse now in occupation of. L. E. 7 Q. B. 748. 
 
 House or other lyuilding. L. B. 4 C. P. 533. 
 'Houses, buildings, and property other than 
 land. L. E. 1 Q. B. 389. 
 
 House, building, or manufactory. 9 Ch. D. 
 425. 
 
 Household furniture. 134 Mass. 228. 
 
 Household goods. 3 Ves. 810 ; 15 Minn. 413 ; 
 
 I Johns. Ch. 339. 
 
 Hypocrite (as libellous). 4 Taunt. 355; 3 
 Camp. 214 n. 
 
 If. Shep. Touchst. 123 ; 8 Allen, 95 ; 103 
 Mass. 105 ; 77 N. C. 439 ; 3 Lev. 133; 3 Show. 
 388 ; Co.Litt. 314 ». 
 
 ijf anything should remairi. 100 Mass. 471. 
 
 If it shall be thought best. 102 Mass. 371. 
 
 If necessary. L. E. 9 Ex. 43. 
 
 If possible. W. N. (1877) 164. 
 
 ff required. W. N. (1877), 164. 
 
 Illegality. 2 Tex. App. 74. 
 
 Illness. 3 Q. B. D. 436. 
 
 Immediate. 2 Lev. 77 ; 7 Mann. & G. 493 ; 39 
 Penn. 198 ; 43 Wis. 316 ; id. 479. 
 
 Immediate delivery. 36 N. J. 148. 
 
 Immediate notice. 7 C. L. J. 15, 73. 
 
 Immediately. 4 T. & C. 511 ; 8 M. & "W. 881. 
 
 Impede. 31 N. J. Eq. 37. 
 
 Impedimentum. Bacon, Tr. 211. 
 
 Impetitio. Bacon, Tr. 211. 
 
 Implements. 9 Bost. Law Eep. 307. 
 
 Implements of gaming. 11 Mete. 79. 
 
 Importer. L. E. 1 C. P. 575. 
 
 Impostor (as libellous). E. & M. 113 ; 3 B. 
 
 6 a. 769 ; 33 L. J. Q. B. 185 ; 9 Jur. N. S. 1069 ; 
 
 II W. B. 569 ; 8 L. T. 301. 
 Imprimis. 3 E. L. & Eq. 26. 
 Improved. 8 Allen, 215. 
 Improvement. 4 Pick. 304. 
 Improvidence. 14 N. T. 449 ; 4 Eedf. 318. 
 Improvident order. 4 Ir. Com. Law, 556. 
 Improving. 13 Gush. 57. 
 
 In addition. W. N. (1868) 181. 
 
 In actual service. 53 Me. 561. 
 
 In actual military service. 3 Curt. C. C. 533 ; 
 
 7 Eng. Eccl. 496. 
 
 In all the month of May. 3 Wash. C. C. 140. 
 
 In and about. 10 C. L. J. 69 ; 75 N. T. 331. 
 
 In and on. 18 Heisk. 684. 
 
 In case, 59 Penn. 70. 
 
 In case of the death. Swanst. 162. 
 
 In case of the decease. 9 Allen, 517. 
 
 In court. 97 Mass. 150. 
 
 In current bank notes. 1 Ohio, 178. 
 
 In default of such issue. 7 East, 581 ; 3 Term, 
 484. 
 
 In difficulties (as libeUous). L. E. 4 Ex. 384 ; 
 38 L. J. Ex. 319. 
 
 In full confidence. L. E. 18 Eg. 414. 
 
 In fullest confidence. 1 Turn. & E. 143, 157. 
 
 In lumdpaid. 100 Mass. 500. 
 
 In her own right. 105 Mass. 486. 
 
 In like manner. 79 N. C. 373, 387 ; 1 Mod. 
 100; 15 Sim. 640; 23 Beav. 74. 
 
 In office. 83 N. T. 373. 
 
 In or about. W. N. (1874) 15. 
 
 In perfect order (used of a house). 9 Gush. 
 242. 
 
 In the clear. 122 Mass. 539. 
 
 In the field. 43 Vt. 726. 
 
 In the occupation of. 3 Bingh. 456 ; 1 B. & C. 
 350. 
 
 In the rear thereof. 109 Mass. 83. 
 
 In the same manner. 133 Mass. 2.58. 
 
 Inboard. 46 N. Y. 175. 
 
 Incapable of acting. L. E. 7 Ch. 833 ; L. E. 3 
 Q. B. 557. 
 
 Incidental purposes. 35 Wis. 468. 
 
 Income. 9 Mass. 373 ; 3 Du. N. T. 426 ; L. E. 
 4 H. L. 449. 
 
 Inde. Co. Litt. 82 6. 
 
 Indebted. 15 S. & E. 148 ; 17 id. 885 ; 3 Gaines, 
 333; 2Ch. D. 101. 
 
 Indefeasible title. 3 Bibb, 317. 
 
 India rubber. 3 Fish. Pat. Gas. 420. 
 
 Indirect. 3 Gill & J. 383. 
 
 Individually. " Personally," not" severally." 
 8 Sandf. 357. 
 
 Inevitable accident. 7 Ch. D. 815 ; L. E. 4 P. 
 C. 318. 
 
 Inferior officer. 8 Eeporter, 611. 
 
 Inferior tradesmen. 1 Ld. Eaym. 149. 
 
 Inferior tribunals. 81 Iowa, 553. 
 
 Infernal villain (as libellous). 1 B. & F. 331. 
 
 Inflict. 101 Mass. 23. 
 
 Inhabitant. 7 Ch. D. 735 ; L. E. 9 C. P. 261. 
 
 Inhabitants of a neighborliood. 10 Pick. 367. 
 
 Inhuman stepmother (as libellous) . 6 Nebr. 
 254. 
 
 Insolvent circumstances. M'Cl. & T. 407. 
 
 Instantly. 8 Perf. & D. 52 ; 8 Dowl. 157. 
 
 Instead of. W. N. (1874) 184. 
 
 Instrument. 3C.&P. 235; 3 Den. Cr. Cas. 
 473. 
 
 Instrument in writing. 18 Mo. 445; L. E. 14 
 Eq. 402. 
 
 Instrument of gaming. L. E. 6 Q. B. 514. 
 
 Intended to be recorded. 2 Eawle, 14. 
 
 Intents and purposes. 11 Ves. 530. 
 
 Intermeddling with. 41 Barb. 337. 
 
 Intersection. 73 Penn. 137 ; 74 id. 859, 439. 
 
 Into and out of. L. E. 1 Adm. & E. 358. 
 
 Into, through, or over. 5 Ch. D. 328. 
 
 Intmdcated. 47 Vt. 294. 
 
 Intoxicating. 6 Gush. 468; 18 Gush. 378; 4 
 Gray, 80 ; 109 Mass. 362. 
 
 Involved. 61 How. Pr. 3()5. 
 
 Inward and outward. L. E. 6 Ex. 9. 
 
 Irregularity. 1 Cow. 155-6. 
 
 Irreparable. 3 Mart. N. B. La. 25. 
 
 Irreparable injury. 76 111. 323. 
 
 Is indebted to Vie plaintiff upon promises. 2 
 Dougl. 467. 
 
 Issue. 9 Ch. D. 131. 
 
 It shall and may be laiirfiA. 1 Edw. Ch. 84. 
 
 B shall be lawful for the court. 1 Johns. Ch. 
 491. 
 Ita quod. 2 Ld. Eaym. 760. 
 Mem. 36 Beav. 81 ; 1 Mod. 130. 
 
 Jackanapes (as libellous). Owen, 17; Cro. 
 Eliz. 348 ; Moore, 408 ; 3 Ad. & E. 4. 
 Jewelry. 14 Pick. 370. 
 Jockey. 3 Scott, N. 8, 584. 
 Joint and equal proportions. Jointly. Ambl. 
 656; IBro. G. C. 118. 
 Journeyihg. 3 Heisk. 511. 
 Judicial decision. 1 Sandf. 78. 
 Judicial documents . 87 Me. 308. 
 Judicial proceedings. 5 Ohio, 547 ; 3 Md. 248 ; 
 10 i<;. 1 ; 8 La. 488 ; 3 La. An. 561. 
 
WORDS 
 
 843 
 
 WORDS 
 
 Junior. 11 Mtan. 78 ; 8 Johns. 549 : 10 Paige, 
 Ch. 170 ; 8 Conn. 293. 
 
 Jm. L. R. 2 H. L. 149. 
 
 Just. 5 Kans. 293. 
 
 Jvst and fair. 59 How. Pr. 148. 
 
 Just and reasonable terms. 1 Bradw. 891. 
 
 Just debts. 1 Binn. 209 ; 9 Mass. 62 : 1 Denio, 
 608 , 9 N. T. 398 ; L. E. 4 H. L. 506. 
 
 Justice. L. R. 1 Q. B. 84. 
 
 Justifiable cause. 1 Sumn. 194. 
 
 Keep in good repair. 13 Gray, 103. 
 
 Keeper. 76 111. 587 ; 123 Mass. 541. 
 
 Kept in operation. 2 Allen, 417, 423. 
 
 Kill (a stream). 1 N. Y. 96. 
 
 Kin. Next of kin. 15 Ves. 109, 583. Next 
 of kin or heir at law. 4 Ves. 469. Next of kin, 
 In equal degree. 12 Ves. 433. 
 
 King's enemies. 1 Leigh, N. P. 509. 
 
 Knocked down. 7 Hill, 431. 
 
 Knowingly. 13 Mete. 448 ; 13 Cush. 499. 
 
 Laborer. 81 N. C. 340. 
 
 Lager beer. 1 Baxt. 15, 
 
 Lamb — mutton. 1 Mood. Cr. Cas. 343. 
 
 Lampooner. 3 Lev. 348. 
 
 Land covered with water. L. R. 6 Q B. 669. 
 
 Land lying near canal. L. R. 6 Q. B, 173. 
 
 Land used for building purposes, L. R. 3 Eq. 
 825 ; 3 Ch. 377. 
 
 Land used only as a railway. L. B. 5 Q. B. 
 157. 
 
 Landed. L. R. 4 Ex. 360. 
 
 Lands. 10 Paige, Ch. 140 ; L. R. 9 Ch. 174 ; 6 
 Q. B. 423. 
 
 Lands of a like quality. 3 Q. B. D. 73. 
 
 Lams. 13 Allen, 77. 
 
 Iiaat mentioned. 5 C. L. J. 374. 
 
 Last past — August last past. 3 Cow. 70. 
 
 Last sickness. 30 Johns. 502 ; 8 Me. 167. 
 
 Launch. 70 Me. 350. 
 
 Law charges. 3 Mart. La. 283. 
 
 Lawful. Lawful heir. 3 Term, 720. Lawful 
 deed of conveyance. 3 S. & R. 498 ; Coxe, N. 
 J. 106. Lawful money. 1 Teates, 349 ; 1 Dall. 
 126, 176. Shall be lawful. 3 Dowl. & R. 173 ; 
 4 B. & Aid. 371 ; 1 B. & C. 8, 35. Lawful title. 
 1 Blackf. 380 ; 3 Me. 23 ; 10 Johns. 266. Lawful 
 current money of Pennsylvania. 1 Dall. 124. 
 Lawful cause. IP.D. 80. 
 
 Lawfully begotten. L. R. 1 Eq. 247; 3 H. L. 
 55. 
 
 Lawfully demanded. 3 Maule & S. 535. 
 
 Lawfully possessed. 45 Mo. 35. 
 
 Laydays: L. R. 2 Q. B. 566 ; 3 id. 413 ; 8 C. 
 P. 46 : 9 Q. B. 540. 
 
 Lay out. 123 Mass. 290 ; 34 Hun, 378. 
 
 Leakage. 107 Mass. 140. 
 
 Leasehold ground rents. 1 Bro. C. C. 76. 
 
 Leave the company. 107 Mass. 60. 
 
 Leave the house. L. K. 3 H. L. 153. 
 
 Leaving. L. R. 16 Eq. 239. 
 
 Leaving children. 6 Term, 307 ; 7 »U 333. See 
 Saving children. .,,.■, r„^~ r 
 
 Left. 2 Cox, 349; 3 Ves. 7; 11 td. 205; L. 
 E. 18 Eq. 152. 
 
 Legal heir. 24 Penn. 168. 
 
 Legalize. 103 Mass. 138. 
 
 Legitimate or otherwise. L. K. <J Jiq. 3sy. 
 
 Lmd. 1 Hill, Ch. 37. 
 
 Lent. Bacon, Abr. Assumpsit, F ; 2 Wils. 141. 
 
 Let 5 Whart. 378. 
 
 LZiel. 5 Ad. & E. 303 ; 4 Nev. & M. 603. 
 
 Lewdness. 13 Allen, 177. t t» ih 
 
 Libellous journalist (as libellous). L. R. 14 
 ■Pir 111 • 19 L. J. Ex. 91. 
 
 iZnsed hawker (as libellous). 1 F. & F. 559. 
 
 Like. 2Cush. 145. 
 
 Like offence. 137 Mass^ 453. 
 
 Like proceedings. L. K. 8 y u. o(. 
 
 Likewise. 6 Hun, 55 
 
 Limit. L. R. 10 Q. B. 180. 
 
 lAmit and appoint. B Term, 124. % 
 , Line of credit. 44 Wise. 49. 
 
 Linen. 3 Bro. C. C. 311. 
 
 Liquor shop. 6 Baxt. 533. 
 
 Litigated. 108 Mass. 669. 
 
 Literary purpose. 8 Ohio, 189;; 8 Ind. 338. 
 
 Live and dead stock. 3 Ves. Ch. 311. 
 
 Live animals. 7 Blatch. 235. 
 
 Lives. 4 Ex. 65. 
 
 Livelihood. 3 Atk. 396. 
 
 lAving. Ill Mass. 158. 
 
 Living in. Ill Mass. 159. 
 
 lAving together. 1 Add. Eccl. 476 : 3 id. 277 ; 
 3 Tyrwh. 76 ; 2 Cr. & J. 66. 
 
 Load. 103 Mass. 405 : 25 Vt. 167. 
 
 Loaded arm. 5 C. & P. 159 ; 7 M. 343 ; 1 C. & 
 K. 530. 
 
 Loading excepted. IQ. B. D.369. 
 
 Loaf sugar. 1 Sumn. 159. 
 
 Local. 1 Thomp. & C. 280. 
 
 Local traffic. W. N. (1870) 17. 
 
 Locate. 6 How. Pr. 37 ; 83 111. 550. 
 
 Located. 103 Mass. 263. 
 
 Lodger. L. R. 4 C. P. 525, 539 ; 5 id. 293 ; 3 
 C. P. D. 36. 
 
 Losing parly. 60 Me. 285. 
 
 Lost or not lost. 1 Marshall, Ins. 332 ; 5 Burr. 
 3803 ; 107 Mass. .543. 
 
 Lots. 4 Ohio, 5. 
 
 Imerative. 44 Ind. 401. 
 
 Lying at anchor. 19 Hun, 384 ; 77 N. T. 4B3. 
 
 lAjing at the wharf. 3 M'Cord, 105. 
 
 Lying on a wharf. 2 M'Cord, 105. 
 
 Machinery. Ill Mass. 540. 
 
 Made. 50 Vt. 132. 
 
 Magistrate. 13 Pick. 533. 
 
 Mail. 6 Daly, 558. 
 
 Mailed. 43 N. T. Super. Ct. 341. 
 
 Main sea. 73 N. Y. 393, 396. 
 
 Mainsworn (as libellous) . 3 Buls. 150 ; Cro. 
 Eliz. 350. 
 
 Maintenance. 2 Conn. 155 ; 4 id. 558 ; 3 Sandf. 
 Ch. 91. 
 
 Make over and grant. 3 Johns. 484 ; 18 id. 60. 
 
 Malt liquor. 55 Ala. 16, 158 ; 67 Me. 242. 
 
 Man Friday (as libellous) . 1 Dowl. 673 ; 3 L. 
 J. Ex. 109 ; 17 L. J. Q. B. 308. 
 
 Managing agent. 19 Hun, 405. 
 
 Manifest. 71 N. Y. 481. 
 
 Mankind. Fortesc. 94. 
 
 Mare. 2 W. Blackst. 721. 
 
 Margins. 53 Ind. 575. 
 
 Market. 3 Woods, 103. 
 
 Market value. 99 Mass. 345. 
 
 Mark th£ boundary line. 78 Penn . 166. 
 
 Mariners. 80 N. Y. 71, 80. 
 
 Masts and logs. 40 Me. 145. 
 
 Matter in controversy. 1 S. & R. 269 ; 5 Binn. 
 523 ; 3 id. 404. 
 
 Matter in demand. 44 Conn. 188. • 
 
 Matter in dispute. 13 Cal. 38!. 
 
 Matter of law. 70N. C.167. 
 
 May— Must. 68 111. 144 ; 36 Wise. 498. 
 
 May receive. 41 Conn. 470. 
 
 Means of mpport. 74 N. Y. 526 ; 71 HI. 341. 
 
 Medals. 3 Atk. 201. 
 
 Medical attendance. 10 Cent. L. J. 137. 
 
 Merchandise. 8 Pet. 277. 
 
 Merchant. 5 Hun , 395. 
 
 Merchantable. 3 Camp. 463 ; 5 Me. 419. 
 
 Merchantable quality. 30 Wend. 61. 
 
 Mere man of straw (as libellous). 1 Dowl. N. 
 S. 602. 
 
 Merits. 3 W. & S. 273. 
 
 Mess pork of Scott & Co. 3 Blngh. N. o. 668. 
 
 Messuage and house. Cro. Eliz. 89 ; 3 Ch. Cas. 
 37 ; 2 Term, 498 ; 1 B. & P. 53. 
 
 mil. 6 Me. 436 ; 15 id. 218 ; 124 Mass. 71. 
 
WORDS 
 
 844 
 
 WORDS 
 
 Mill privilege. 16 Me. 63. 
 
 Mill ami)- 10 Me. 135. 
 
 Mill site. 15 Pick. 57: 6 Cow. 677; 32 Me. 
 383. 
 
 innd. 3 Wash. C. C. 580 ; 53 Me. 304. 
 
 Minerals. 5 Watts, 34. 
 
 Mobilier. 3 Mart. La. eond. ed. 430. 
 
 Molest. Cro. Eliz. 421. 
 
 Money. 15 Yes. 819 ; 3 Mer. 691 ; 1 Johns. Ch. 
 331. 
 
 Money — Moneys. 1 Johns. Ch. 231 ; 14 Johns. 
 1 ; 31 E. L. & E. 453. 
 
 Money in the funds. 5 Price, 317. 
 
 Money, jewelry, and other valuables (in the 
 " rules " of a hotel) . 1 Wils. Ind. 119. 
 
 Moral certainty. 118 Mass. 1, 33. 
 
 More or less. 3 Cent. L. J. 618 ; 5 id. 28 ; 34 
 Me. 554 ; 99 Maes. 331 ; 103 id. 344 ; 23 Minn. 
 63. 
 
 Most direct route of travel. 1 N. W. Eep, N. s. 
 701. 
 
 Momitain. 1 Stra. 71 ; 1 Burr. 639. 
 
 Movables. W. Jones, 335. 
 
 Mr. 3 C. & P. 59 ; see Name. 
 
 Mrs. 3 C. & P. 59. 
 
 Mulatto (as libellous). 1 McCord, 303 ; 1 N. 
 & McC. 184 ; 1 Ohio, 83 note ; 30 Ga. 600. 
 
 Municipal claims, 73 Penn. 92. 
 
 Mutual combat. 46 Ga. 148. 
 
 Mutual credit. 4 Term, 311 ; 8 Taunt, 499 ; 
 4 Burr. 3333. 
 
 My hdlfpart. 11 East, 163. 
 
 My house and all that shall be in it at my death, 
 1 Bro. C. C. 139, n. 
 
 My inheritance. Hob. 2 ; 7 East, 97. 
 
 My personal estate. 23 Hun, 810. 
 
 My property. 17 Johns. 281. 
 
 My right heirs on the part of my mother. 4 
 Ves. 766. 
 
 Naleed. 126 Mass. 46. 
 
 Name and blood. 15 Ves. 92. 
 
 Natural heirs (in a legacy). 78 N. C. 373. 
 
 Navy yard. 1 Hugh. 588. 
 
 Near. 44 Mo. 197 ; 4 Gray, 65. 
 
 Nearest. 105 Mass. 304. 
 
 Neat cattle. 32 Tex. 479. 
 
 Neat stock. 36 Tex. 324. 
 
 Necessary charges. 3 Me. 191 ; 112 Mass. 1. 
 
 Necessary disbursements. 24 Wise. 54. 
 
 Necessary implication. 1 V. & B. 466. 
 
 Necessary outgoings. L. K. 1 Ex. 288. 
 
 Necessary provisions. 16 Gray, 311. 
 
 Need. 107 Mass. 474. 
 
 Needful. 4 Esp. 66. 
 
 Neglect or refusal. 4 Gush. 178 : 6 «. 334 : 54 
 N. T. 363. 
 
 Negotiate. 69 N. T. 383 ; 14 Hun, 51. 
 
 Neig?iborhood. 38 Iowa, 484. 
 
 Negotiate. 5 Du. N. T. 373. 
 
 Negro. 9 Ired. 384 ; 28 Gratt. 939. 
 
 Net balance. 71 Penn. 69. 
 
 Net earnings or income. 69 Penn. 137; 10 
 Blatch. 371 ; 23 Wall. 146 ; 99 U. S. 403, 455. 
 
 Net profits. 12 Allen, 354 ; 50 Ga. 339. 
 
 Neurotomy. Ry. & M. Cr. Gas. 290. 
 
 Never. 2 Atk. 32 ; L. E. 3 Q. B. 239, 243. 
 
 Never been heard of. L. R. 2 App. Cas. 487. 
 
 New (in patent law). 97 U. S. 3. 
 
 New assets. 117 Mass. 232. 
 
 Newspaper. 5 Me. 171 ; 35 Minn. 146 ; 75 111. 
 51 ; 47 Mo. 157 ; 23 Alb. L. J. 444. 
 
 Next. Stra. 394 ; Cro. Jae. 646, 677 ; 9 Cow. 
 255; 6N. H. 374; 13 «. 446. 
 
 Next meeting of the legislature. 9 S. 0. 335. 
 
 Next of kirn. L. R. 4 Eq. 156 ; 5 id. 303. 
 
 Next of kin, equal to degree. 13 Ves. 433. 
 
 Next of kin, in blood. L. R. 3 Ch. 605. 
 
 Next of kin, or heir at law. 4 Ves. 469. 
 
 Next personal representative. L. R. 4 Eq. 869. 
 
 Next regular session. 64 111. 356. 
 
 Next SJirviving son. L. R. 2 Eq. 487. 
 
 Next term. 1 Mass. 411 ; 9 Cush. 403. 
 
 Non-arrival. 2 B. & C. 564. 
 
 Non-contractual. 5 Cent. L. J. 97. 
 
 Non-resident. 4 La. 11. 
 
 Nominal party. 59 Me, 505. 
 
 Northerly. 1 Johns. 156 ; 116 Mass. 117 ; 25 
 Cal. 296 ; 115 Mass. 578. 
 
 Northward. 3 Caines, 393 ; 1 Johns. 168. 
 
 Not accountable for leakage. L. R. 1 P. C. 331. 
 
 Not liable for any damage to or from her sheaih- 
 ing. 30 Pick. 389. 
 
 Notes current in the city of New York. 19 Johns. 
 146. 
 
 Now. 3 Penn. 388, 289 ; 4 Mann. & G. 99 ; 30 
 Kan. 390 ; 5 Dutch. 153 ; 34 Beav. 525 ; 1 M. & 
 G. 518 ; L. R. 8 Eq. 229. 
 
 Noxious or dangerous trade or business. 50 
 Barb. 135. 
 
 Number. 7 Heisk. 8 ; 10 Hun, 247 ; 22 Alb. L. 
 J. 65. 
 
 Obtain. L. E. 1 C. C. 261. 
 
 Occupant. 25 Barb. 54. 
 
 Occupation. 7 W. & S. 330 ; L. E. 6 Ex. 1. 
 
 Occupier. L. R. 7 Q. B. 418. 
 
 Ocaur. 91 111. 92. 
 
 Of. 3 Term, 431; 3 Bingh. N. C. 668; 107 
 Mass. 361. 
 
 Of and concerning. 4 Maule & S. 169 ; 3 
 Caines, 829 ; 1 Binn. 537. 
 
 Offence. 9 C. & P. 525 ; B. o. 38 E. C. L. 333. 
 
 Office of trust. 6 Blackf. 529. 
 
 Office under company. L. E. 3 C. P. 484. 
 
 On. 3 Term, 431 ; 45 Mo. 349. 
 
 On a passage. 103 Mass. 241. 
 
 On a stream. 3 Sumn. 170. 
 
 On arrival. 2 Camp. 237, 532. 
 
 On call (at any time called for) . 23 Gratt. 
 609. 
 
 On condition. 4 W. & S. 302. 
 
 On each side of said line. 24 Minn. 517. 
 
 On each side of the road. 3 C. L. J. 330. 
 
 On file. 17 Minn. 95. 
 
 On payment of costs. 6 Cow. 582 ; 5 J. J. 
 Marsh. 243. 
 
 On right delivery of cargo. L. E. 2 C. P. 848. 
 
 On shore. 1 B. & P. 187. 
 
 On the line thereof. 3 Cent. L. J. 336. 
 
 On the road. 9 Gray, 37 ; 8 Cush. 695. 
 
 On the trial. 2 Whart. 159. 
 
 Once a week. 4 Pet. 361 ; 2 Miles, 150. 
 
 One. 33 Alb. L. J. 65. 
 
 One day after date. 3 Penn. 496. 
 
 One foot high. 3 Zabr. 165. 
 
 One-half. 2 Minn. 213. 
 
 One of my sons. 2 Vem. 635. 
 
 One whole year. 12 Mass. 262. 
 
 Only. 22 Pick. 530. 
 
 Opened and dedicated to the public use. 103 
 Mass. 495. 
 
 Openly. Co. 3d Inst. 57. 
 
 Operating expenses. 134 Mass. .537. 
 
 Operative. 2 Cush. 371. 
 
 OpposUe. 58 Me. 357. 
 
 Opposite party. 10 Heisk. 477. 
 
 Oppressive conduct (as libellous). 2 M. & Ey. 
 74. 
 
 Or. Or any other person. 15 Wend. 747. Or 
 by any other person. 3 A. K. Marsh. 730. Or 
 elsewhere. 2 Gall. 477. Or otherwise. IChltty, 
 Bail, 205 ; 10 Mass. 183 ; 15 Pick. 27 ; 2 Gray, 
 502 ; 105 Mass. 35 ; 1 Lea, 646. 
 
 Or any other. 5 Cush. 533. 
 
 Or other thing. 126 Mass. 47. 
 
 Or otherwise. 9 Mete. 358. 
 
 Or when realized. 2 E. L. & E. 286. 
 
 Orchard. Cro. Eliz. 854. 
 
 Ordained minister. 4 Conn. 134. 
 
WORDS 
 
 845 
 
 WORDS 
 
 Order. 39 Iowa, 324. 
 
 Order (in chancery pleading). 7 Sim. 17. 
 
 Ordinary trains. L. R. 17 Eq. 561. 
 
 Ordinary way of trade. 1 Ch. D. 151. 
 
 Original. 6 Wheat. 396 ; 5 S. & E. 549. 
 
 Orphan. 3 Mer. 48 ; 2 S. & S. 93 ; 33 Penn. 9. 
 
 Ottier. 1 Brocli. 187 : 118 Mass. 350 ; L. R. 7 
 Eq. 839 ; 8 id. 160. 
 
 Other offices. 1 B. <fe C. 337 ; 5 id. 640. 
 - Other property whatsoever, h. R. 7 Eq. 458. 
 
 Other purposes. 2 Q. B. D. 544. 
 
 Other writing. 1 Rawle, 231. 
 
 Others. 8 Cent. L. J. 231. 
 
 Otherwise. 1 Gall. 39. 
 
 Out and out. 36 Penn. 204. 
 
 Out of the country. 3 Bibb, 510. 
 
 Out of the family. L. R. 20 Eq. 186. 
 
 Out of the state. 1 Johns. Gas. 76. 
 
 Outfits. 1 Stor. 603 : 11 Pick. 227 ; 9 Mete. 
 354, 364. 
 
 Outgoings. L. R. 1 Eq. 135 ; 9 id. 209. 
 
 Out-house. 5 Day, 151 ; 4 Conn. 446. 
 
 Outstanding and bearing interest. 5 Cent, L. 
 J. 45. 
 
 Over. 2 Allen, 108 ; 47 Iowa, 607. 
 
 Over the sea. Kirb. 299. 
 
 Overseers, 7 Mann. & G. 481. 
 
 Overtaking ship, 2 P. D. 8 ; 3 id. 11. 
 
 Own use. 4 Rawle, 68. 
 
 Owned by them. 5 Cow. 509. 
 
 Owner, 6 Nev. & M. 340 ; 4 N. T. 66 ; L, R. 
 
 6 Q. B. 667 ; 10 id. 16, 203 ; 7 id. 418. 
 
 Owner's risk. 3 Q. B. D. 195. 
 
 Owners or occupiers. L. R. 8 Ex. 8. 
 
 Ox gang. Shepp. Touchs. 93 ; Co. Litt. 5. 
 
 Oyster. 58 Me. 164; 27 N. J. L. 117. 
 
 Package; Parcel. 1 Hugh. 539 ; 3 Daly, 454, 
 480 ; 44 Ala. 468 ; 9 Ex. 67 ; 6 Daly, 171. 
 
 Paidin. 69 Penn. 334. 
 
 Paintings. 3 Ex. D. 131. 
 
 Palmistry or otherwise. 2 Ex. D. 368. 
 
 Parvalue. 3 Hill, N. T. 158: 8 Paige, Ch. 
 537. . S . 
 
 Parallel. L. R. 3 App. Cas. 433. 
 
 Parish or place. L. R. 1 Q. B. 489 ; Sid. 391 ; 
 
 7 C. P. 378. 
 
 Parishioner. L. R. 30 Eq. 600 ; 1 Ch. D. 160. 
 
 Participation. L. E. 6 Ch. 696. 
 
 Particular charges. L. R. 1 C. P. 535; 2 id. 
 357. 
 
 Particular locality. L. R. 3 H. L. Sc. 353. 
 
 Partly completed. 70 Penn. 310. 
 
 Party becoming absolutely entitled. 7 Ch. D. 
 708. 
 
 Party or privy. L. R. 9 C. P. 363. 
 
 Passage {of an act) . 16 Gray, 144. 
 
 Passage of thisact. lOR. I. 88 ; 2 Ch. D. 9. 
 
 Passage room. 3 Ld . Ray m. 1470. 
 
 Passing. 1 Baldw. 366. 
 
 Passing through the town. 6 Ohio, 143. 
 
 Pave. 31 Iowa, 31. 
 
 Pavement. 30 Hun, 303. 
 
 Paving. 76N.Y. 174. 
 
 Payable. 5 Ch. D. 984. 
 
 Payable and negotiable withwit defalcation at 
 the K Bank. 39 Penn. 529. 
 
 Payableas convenient. 130 Mass. 171. 
 
 Payable in specie. 49 Ala. 319. 
 
 Payable in trade. 114 Mass. 34. 
 
 Pectorine. W. N. (1875) 63. 
 
 Peeaniary provisions. 61 Me. 395. 
 
 PedXer. 41 Vt. 139 ; L. R. 8 Q. B. 303 ; 10 id. 
 598. 
 
 Penalty or forfeiture. 2 Q. B. D. 406. 
 
 Pencil writing. 7 Dowl. & R. 653 ; 1 Fhill. 
 Eccl. 53. 
 
 Pending. 48 N. H. 307. 
 
 Per annum. Bacon, Abr. Covenant,F. 
 
 Pereussit. 3 Va. Cas. 111. 
 
 Perils of navigation. 15 Minn. 390. 
 
 Perishable articles. 7 Cow. 303. 
 
 Permanent abode. 78 111. 170. 
 
 Pei-manent sickness. L. R. 1 C. P. 699. 
 
 Permanently, 17 Am . L. Reg. n. s. 34 ; 13 
 Bush, 541. 
 
 Permit. 9 Allen, 271. 
 
 Permitting and suffering. 6 B. & C. 395. 
 
 Perpetual. 3 Brod. & B. 27. 
 
 Person. 3 Q. B. D. 131 ; 3 C. P. D. 377. 
 
 Person deeming himself aggrieved. L. R. 4 Q. 
 B. 715. 
 
 Person entitled to vote. L. R. 4 Q. B. 147. 
 
 Person in charge. L. R. 3 Adm. & E. 354 ; 6 
 Q. B. 380. 
 
 Person interested in the estate. 10 Cent. L. J. 
 79. 
 
 Personal estate in expectancy. L. R. 7 Eq. 
 326. 
 
 Personal estate, property, chattels, and effects. 
 3C. P. D. 344. 
 
 Personal ornaments. 1 Beav. 189. 
 
 Personal property. 34 Penn. 20. 
 
 Personal representative. L. R. 1 Eq. 390 ; 18 
 Eq. 686. 
 
 Personal transaction. 81 N. T. 635. 
 
 Persons of color. 3 Ired. 455. 
 
 Perverse. 7 Cent. L. J. 437. 
 
 Petroleum. L. R. 6 Q. B. 505. 
 
 Pettyfogging shyster. 40 Mich. 351. 
 
 Philosophical. 105 Mass. 433. 
 
 Pickpocket (as libellous). 3 Ld. Raym. 959. 
 
 II Mod. 355. 
 
 Pilfering. 4 Blackf . 499. 
 Pious. 3 Drew. 417. 
 Piratical. 2 How. 310. 
 
 Place. L. R. 3 Ex. 137 ; 10 Q. B. 102 ; 9 C. P. 
 339. 
 Place of business. 9 Cush. 298 ; 98 Mass. 95 ; 
 
 III Mass. 320. 
 
 Place of entertainment or amusement. L. R. 
 4 C. P. 21 ; 10 Q. B. 306 ; 10 Ex. 291. 
 
 Place of publication. 85 111. 110. 
 
 Place of public resort. L. R. 5 Ex. 257. 
 
 Places. 5 Term, 375, 379 ; 5 B. & C. 640 ; 8 
 Dowl. & E. 393. 
 
 Pladtum. Skinn. 550, 554. 
 
 Plain. 79 N. C. 524. 
 
 Plain Mnglish type. 57 Mo. 235. 
 
 Plan. W. N. (1877) 154. 
 
 Plant. 1 Mood. & M. 341. 
 
 Plantation. 2 Humphr. 315; SM'Cord, 363; 
 9 Gray, 485. 
 
 Planting. 7 Conn. 186. 
 
 Pleasure. At her pleasure. Boyle, Char. 
 307. 
 
 Pleasure carriage. 9 Conn. 371 ; 11 id. 185 ; 
 18 Johns. 128 ; 19 id. 442. 
 
 Plow land, Co. Litt. 5. 
 
 Plundered. 16 Pick. 1. 
 
 Plying for hire. L. R. 4 Ex. 319 ; 6 C. P. 
 481; 6 Q. B. 357. 
 
 Pointing to futurity. 6 Ch. D. 618. 
 
 Poison. L. R. 5 Q. B. 296. 
 
 Poisonous and Tioxious substances. 7 Cent. L. 
 J. 314. 
 
 Police officer. Ill Mass. 407. 
 
 Policy of the law. 75 Penn. 433. 
 
 Poor. Poor kindred. 17 Ves. 371 ; 14 Kan. 
 418. 
 
 Poor inhabitants. Ambl. 422. 
 
 Poor relations. 9 Cent. L. J. 323 ; Amb. 507. 
 
 Poorest of my kindred. (In will.) 7 Cent. 
 L. J. 16. 
 
 Port. Port of Boston. 9 Mete. 371 ; 119 
 Mass 185. 
 
 Port of destination. 12 Gray, 501, 619 ; 103 
 Mass. 241 
 
 Port of discharge. 104 Mass. 610. 
 
WORDS 
 
 846 
 
 WORDS 
 
 Portion. 14 Sim. 496 ; L. R. 7 Ch. 356. 
 
 Ports and havens. 108 Mass. 169. 
 
 Port or ports of loading. L. R. 4 Q. B. 523 ; 
 
 5 id. 584. 
 
 Possess. 1 Dev. & B. 452. 
 
 Possession. Coming into possession. 3 Bro. 
 C. C. 180. 
 
 Possible to see. 19 Mich. 483. 
 
 Post notes. 23 Penn. 479. 
 
 Post road; post route. 13 Ct. CI. 199. 
 
 Potatoes. 16 Me. 207. 
 
 Pound. 3 Cush. 305. 
 
 Power coupled with an interest. 8 Wheat. 
 203 ; 2 Cow. 196. 
 
 Practicable. 15 Am. L. Rev. 479. 
 
 Precarious. 60 Barb. 56. 
 
 Precincts. 50 Me. 390 ; 134 Mass. 172. 
 
 Predecessor. 2 Ex. D. 398. 
 
 Predict. Co. Litt. 20 b. 
 
 Pregnant woman. 22 Hun, 525 ; N. T. 
 Weekly Dig. Feb. 25, 1881. 
 
 Premises. 116 Mass. 155. 
 
 Presentment. 9 Gray, 291. 
 
 Present located line. 18 Minn. 108. 
 
 Prevailing party. 53 Mo. 338 ; 61 Me. 105 ; 102 
 Mass. 120. 
 
 Prime cost. 2 Mas. 53. 
 
 Principle moneys. L. R. 11 Eq. 232. 
 
 Prior in date. 3 Day, 66. 
 
 Prison charges. 4 Me. 82. 
 
 Private charity. Turn. & R. 260. 
 
 Private eonvei-sation. 113 Mass. 157. 
 
 Private dwelling. 103 Mass. 174. 
 
 Private expenses. 1 Johns. Ch. 467. 
 
 Private house. 3 Brevfst. 344. 
 
 Pi-ivate nuisance. 80 N. T. 579. 
 
 Private way. 103 Mass. 114. 
 
 Privilege of the shores. 123 Mass. 515. 
 
 Privileges and appurtenances. 14 Mass. 49. 
 
 Pro A B, CD. 11 Mass. 97. 
 
 Pro rata. 122 Mass. 310. ■ 
 
 Proceed to sea. 9 S. & R. 154 ; L. R. 4 Adm. 
 
 6 E. 161. 
 
 Proceeding. 7 Ch. D. 371. 
 
 Proceedings thereupon. 16 Pet. 303, 313 ; L. R. 
 3 Q. B. 170. 
 
 Proceeds. 4 Mas. 529. 
 
 Proceeds of such sale. L. R. 9 Ex. 147. 
 
 Procreatis — Procreandis. 1 Maule & S. 124. 
 
 Procure. 1 C. & M. 458. 
 
 Produce of a farm. 6 W. & S. 269, 280. 
 
 Profession, trade, or employment. 103 Mass.545. 
 
 Professions. 7 W. & S. 330. 
 
 Professional employment. 9 Cent. L. J. 276; 
 41 Mich. 153. 
 
 Profits. 10 Johns. 226 ; 12 Allen, 354 ; 105 
 Mass. 103. 
 
 Profits in hand. L. R. 4 Ch. 475. 
 
 Proper comity. 2 Teates, 152 ; 7 Watts, 245. 
 
 Property. L. R. 1 Ex. 1. 
 
 Property and effects. 7 Cent. L. J. 96. 
 
 Property on board. 2 Mete. Mass. 1. 
 
 Property- other than lands. L. R. 6 Q. B. 707. 
 
 Property, personal and real. 1 Speers, Eq. 51. 
 
 Property subject to taxation. 103 Mass. 545. 
 
 Proportion. Charge on estates in equal pro- 
 portion. 3 Bro. C. C. 286. In just and equal pro- 
 portions. 7 S. & R. 514. 
 
 Proportion. 56 Mo. 60. 
 
 Proportional share. 115 Mass. 379. 
 
 Proprietor. 6 Nev. & M. 340 ; 5 Ch. D. 648 ; 
 L. R. 3 App. Cas. 1124. 
 
 Prosecute with effect. 12 Mod. 380. 
 
 Protect. 21 Penn. 455. 
 
 Provided. 8 Allen, 596. 
 
 Public assembly. 3 Tex. App. 444. 
 
 Public building. 34 N. J. 377. 
 
 Public entertainment or amusement, L. R. 10 
 Q. B. 306 ; 10 Ex. 291. 
 
 Public house. 8 Brewst. 344 ; L. R. 2 Eq, 688. 
 
 Public library. 9 R. I. 559. 
 
 Public peace and order. 6 Daly, 376. 
 
 Public place. 64 Ind. 563; 44 Wis. 213; 67 
 Barb. 221. 
 
 Public policy. 9 E. C. L. 452. 
 
 Public resort. 8 Cent. L. J. 216 ; 90 111. 218. 
 
 Public sale. 4 Watts, 258. 
 
 Public street or road. L. R. 4 Ex. 319. 
 
 Public trade. L. R. 3 Q. B. 39. 
 
 Public trust. 20 Johns. 493 ; 2 Cow. 29, n. 
 
 Publish. 2 Dev. 115. 
 
 Published. 3 M. & W. 461 ; 6 id. 473 ; 9 Bingh. 
 605 ; 5 B. & Ad. 518 ; 8 Dow. P. C. 392. 
 
 Punch. W. N. (1869) 221. 
 
 Purchasing. 6Ves.404. See 2 Hall, N.T. 477. 
 
 Purposes of this act. 2 Q. B. D. 349 ; L. R. 3 Ch. 
 745. 
 
 Purse, prize, or premium. 81 N. Y. 532, 539. 
 
 Put— call. 79 111. 351. 
 
 Put off.- 8 C. & P. 582 ; 1 Russ. & R. 86. 
 
 Quacksalver (as libellous).- 1 RoUe, Abr. 54 ; 
 1 Ad. & E. 695 ; 3 N. & M. 703. 
 
 Quamdiu. O. Bridgm. 202. 
 
 Quantity and boundary. 2 Caines, 146. 
 
 Quantity and quality unknown. L. R. 8 C. P. 
 679. 
 
 Quarries. L. R. 1 Ch. 303. 
 
 Question involved in the action, 2 C. P. D. 80. 
 
 Quick with child. 1 Clark, Pa. 183. 
 
 Quit. 2 N. H. 402. 
 
 Quota, 97 Mass. 390. 
 
 Bace-fleld. 9 Leigh, 648. 
 
 Baffle. 2 Const. 128. 
 
 Sailroad. 7 Allen, 524. 
 
 Bainy day. 9 Cent. L. J. 56 ; 21 A. L. J. 186. 
 
 Baise. 1 Atk. 421 ; 2 Vern. 154. 
 
 Pascal. 2 Const. 235. 
 
 Batable polls. 7 Mass. 523. 
 
 Bates, taxes, and duties. 115 Mass. 186. 
 
 Beal cost. 2 Mas. 53. 
 
 Bealm. 1 Taunt. 270 ; 4 Camp. 288. 
 
 Bear. 126 Mass. 404. 
 
 Beasonable attorney fee. 20 Kane. 660. 
 
 Seasonable cause — Beasonable ground, L. R. 9 
 Q. B. 560. 
 
 Bebuild. 3 Rawle, 483. 
 
 Beceivable. L. R. 1 App. Cas. 428. 
 
 Beeeived. L. R. 6 Eq. 59. 
 
 Beceivedfor record. 3 Conn. 544 ; 1 Root, 500. 
 
 Beeeived note in payment. 2 Gill & J. 511. 
 
 Beciprocal demands. 79 N. T. 1, 8. 
 
 Becollect. 1 Dana, 56. 
 
 Becomm.endation. 2 Ves. 333 ; 3 id. 160 ; 9 id. 
 546 ; Jac. Ch. 317 ; 1 S. & S. 387. 
 
 Becord and docket. 1 Watts, 395. 
 
 Becovered in a suit. 5 Wend. 620 ; 4 Du. N. 
 T. 275. 
 
 Becovery. 2 Caines, 214 ; 1 Paine, 230. 
 
 Bectifler of spirits. 1 Pet. C. C. 180. 
 
 Bedeemdble. 1 Hugh. 17. 
 
 B^ne. 1 Pet. C. C. 113. 
 
 Befusal. 79 N. T. 627. 
 
 Belations. 4 Ch. D. 238. 
 
 Belatives. 16 Eq. 148, 373. 
 
 Belease and forever quit claim. 10 Johns. 456. 
 
 Belief. 3 Ch. D. 793. 
 
 Beligion. 23 Ohio, 211. 
 
 Beligious society. 9 Cush. 188 ; 1€ Gray, 330. 
 
 Belocate. 117 Mass. 416. 
 
 Bemain. L. R. 18 Eq. 152. 
 
 Bemaining untried, 5 Binn. 390. 
 
 Benew. 124 Mass. 149. 
 
 Benewed. 34 Me. 647. 
 
 Bent to become d/ue. 120 Mass. 126. 
 
 Bentals. 124 Mass. 527. 
 
 Bents. 2 Penn. 165. 
 
 Bents and profits. 2 V. & B. 65 ; 6 Johns. Ch. 
 73; 1 Ves. Sen. 171; 2 Atk. 358. 
 
WORDS 
 
 847 
 
 WORDS 
 
 Repair. 8 Allen, 58. 
 
 Mepain. 110 Mass. 305 ; 21 Barb. 484 ; 1 
 McCord, 517. 
 
 Represent. 102 Mass. -60. 
 
 Request. 3 V. & B. 198 ; 5 Madd. 118 ; 18 
 Ves. 41 ; 1 Mood. 300 ; L. E. 1 C. C. 257. 
 
 Requested by mail, 2 Allen, 82. 
 
 Resident. L. E. 7 Q. B. 471. 
 
 Residuary legatee. tiCh.D. 24. 
 
 Resist. 26 Ohio, St. 196. 
 
 Respective, respectively. 1 Mer. 358 ; 2 East, 
 m ; Cowp. 34. 
 
 Responsible bidder. 55 How. Pr. 118. 
 
 Rest. Al. 28 ; 3 P. Wms. 63, n. 
 
 Rest and residue. 11 East, 164. 
 
 Retail. 7 Mete. 304. 
 
 Retained. 5 Term, 143 ; 18 Jar. pt. 2, p. 21 . 
 
 Retire. 25 E. L. & E. 423. 
 
 Returned convict (as libellous) . 2 M. & Eob. 
 119. 
 
 Reversion. If the reversion should never fall 
 to the testator. JO Ves. 453. 
 
 Revising — Correcting. 14 Me. 205J 
 
 Revoked. 1 Cow. 335 ; 16 Johns. 205. 
 
 Rice. 5 B. & P. 213. 
 
 RigJit. 2 Caines, 345. 
 
 Right and claim. 2 Allen, 121. 
 
 Right and title. 16 Gray, 332. 
 
 Right and title in the deed. 2 Ohio, 221. 
 
 Right, power, or privilege. L. E. 7 Q. B. 690. 
 
 Right, title, and interest. 4 Pick. 179. 
 
 River-feeder. 13 Pick. 50. 
 
 Rogue (as libellous) . 4 Eep. 15. 
 
 Rolling-mill. 2 W. & S. 390. 
 
 Rooks. 2 B. & C. 934. 
 
 Room. 12 Gush. 416. 
 
 Roots. 7 Johns. 385. 
 
 Rope-walk. 37 N. H. 65. 
 
 Route, along its. 91 U. S. 454 ; 36 Wise. 466. 
 
 Runagate (as libellous) . 2 Lev. 314. 
 
 Running. 18 N. Y. Sup. Ct. 108. 
 
 Running days. 16 Gray, 471 ; 1 Bell, Com. 
 577. 
 
 Sabbath night (as used in liquor laws) . 78 111. 
 294. 
 
 Said. 5 Cent. L. J. 274 ; 1 Chitty, Cr. Law, 
 *174 ; 2 Car. Law Eep. 75 ; 3 Heisk. 1. 
 
 Said—saith. 5 Tyrwh. 391 ; 1 Gale, 47. 
 
 Sail, to. 3 Maule & S. 461. 
 ' Sail from, to. 3B. &C. 501. 
 
 Sailed on or about. 4 N. T. 345. 
 
 Sale in gross. 3 Hugh. 400. 
 
 Sale of spirituous liquors. L. E. 7 Eq. 523. 
 
 Saloon. 26 Mich. 325 ; 36 Tex. 364. 
 
 Saloon-keeper. 105 Mass. 41. 
 
 Salt-marsh lands. 32 Cal. 354. 
 
 Salt water. 13 Gray, 257. 
 
 Same. Cro. Eliz. 838 ; 66 111. 99 ; 14 Pick. 70; 
 40 Iowa, 487. 
 
 Same m,anner. L. E. 6 H. L. 24. 
 
 Sanitary. 73 N. Y. 65. 
 
 Sarsaparilla. 7 Johns. 385. 
 
 Satisfactory proof. 10 Johns. 167. 
 
 Satisfied. 1 M'Cord, Ch. 53 ; 2 Johns. 395. 
 
 Saving. 2 EoUe, Abr. 449. 
 
 Say about, etc. L. E. 5 P. C. 203. 
 
 Say not less than. 3 E. L. & E. 365. 
 
 SehUm. 5 Bush, 401, 415. 
 
 School. 1 Maule & S. 95 ; Viner, Abr. h. t. 
 
 Schools of learning. Wilm. 14 ; 2 Vern. 387 ; 
 14 Ves. 7 ; 1 Sim. 109 ; Jac. 474. 
 
 Scope. 75 111. 346. 
 
 Sea stores. Baldw. 504. 
 
 Sealed. Harp. 1. 
 
 Second cousins. 11 Cent. L. J. l"''- „ .,_^ , 
 
 Semred to be paid. 1 Paine, 518 ; 12 Wheat. 
 487. 
 
 SeciirUiesfor money. L. B. 8 Eq. 434 ; 19 Eq. 
 323. 
 
 See back. 1 C. P. D. 618. 
 See himpaid. Fell, Guar. 36, 37 : 1 Ld. Eaym. 
 224 ; Cowp. 227 : 2 Term, 86. 
 
 See you out. 13 Wend. 446. 
 
 Seen. 3 HUl, So. C. 582. 
 
 Self -deserving. 5 Cent. L. J. 97, 
 
 Sell and convey. 13 Me. 460. See also 2 Me. 
 23. 
 
 Sell for at the pit's mouth. 5 Term, 564. 
 
 Semicolon. 6 Abb. N. Cas. 181. 
 
 Separate estate. 24 Penn. 429. 
 
 Servant. 5 La. 15 ; 10 E. L. & E. 92. 
 
 Served. 6 8. & K. 281. 
 
 Setting fire. 2 East, Fl. Cr. 1020 ; 5 Gratt, 
 664. 
 
 Settled. 2 Leach, 910 ; 8 Wend. 600. 
 
 Seventh child. 3 Bro. C. C. 148. 
 
 Smer. L. E. 1 Q. B. 328. 
 
 Sexual intercourse. 22 Ohio St. 543. 
 
 Shall. 1 Vt. 153. Shall be lawful. 2 Dowl. 
 & E. 172 ; 4 B. & Aid. 271 ; 1 B. & C. 35, 65 ; 3 
 Mart. N. s. 532. 
 
 Shall extend. 1 Wheat. 304. 
 
 Shall go. 40 Cal. 493. 
 
 SliaU show by his own oath oV oth^r competent 
 proof. 1 N. Y. 330. 
 
 Shall well and truly submit. 4 Minn. 466. 
 
 SJiare and share alike. 3 Des. Eq. 143. 
 
 Shave. 2 Denio, 293. 
 
 Shaving (as libellous). 2 Denio, 293 ; L. E. 6 
 Q. B. 280. 
 
 Sliip damage. Abbott, Shipp. 204; Bacon, 
 Abr. Merchant, etc., H. 
 
 Shipped. L. E. 2 App. Cas. 455. 
 
 Shipment. L. E. 2 App. Cas. 455. 
 
 Shop. 4 Conn. 446 ; 1 C. & K. 173 ; 2 Q. B. 
 D. 127. 
 
 Should be secured. 5 Binn. 496. 
 
 Shovel plough. 3 Brev. 5. 
 
 Shmii. 16 Blatch. 189. 
 
 Sickness. L. E. 8 Q. B. 295. 
 
 "Side or banks" of canal. 3 Cent. L. J. 633 ; 
 2 W. N. C. 687. 
 
 Signature. 125 Mass. 446. 
 
 Signing. I, A B, do make this my will. 18 
 Ves. 183. 
 
 Silks. 1 Carr. & M. 45. 
 
 Similar offence. 127 Mass. 452. 
 
 Sitfasts. 9 M. & W. 670. 
 
 Six handkerchiefs. 1 Mood. Cr. Cas. 25. 
 
 Sixty pounds in specie, or tobacco at specie prices. 
 Mart. No. C 20. 
 
 Skins. 7 Johns. 385 ; 7 Cow. 202. 
 
 Slip. 11 N. Y. 115. 
 
 So long as wood grows or water runs. 1 Vt, 
 303. 
 
 Sold. 3 Wend. 112. 
 
 Sold and conveyed. 2 S. & E. 473. 
 
 Soldier. 102 Mass, 130. 
 
 Sole. 1 Madd. 207 ; 1 Belt, Suppl. Ves. 410 ; 
 4 Rawle, 66 ; 4 Wash. C. C. 241. 
 
 Sole and absolute disposal. L. R. 4 Eq. 116. 
 
 Sole executors. L. E. 1 P. & M. 628. 
 
 Sole use. L. E71 Eq. 561 ; 2 Eq. 177 ; 4 H. 
 T 288 
 
 Solvent. 10 Ves. 100 ; Gower, Partn. 409. 
 
 Solvent debtor. 53 Barb. 547 ; aff. 37 N. Y . 344. 
 
 Some writing. 65 Me. 500. 
 
 Sons. L. E. 1 H. L. 87. 
 
 Soon. 14 Kans. 228. 
 
 Soon as convenient. 1 Ves. 366 ; 19 id. 387. 
 
 South, directly. 8 Allen, 424. 
 
 Southwest corner of section. 2 Ohio, 327. 
 
 Spawn. 12 Ad. & E. 13 ; s. c. 40 E. C. L. 15. 
 
 Special circumstances. L. R. 3 Ex. 4^ 2 C. P. 
 D. 430. 
 
 Special purposes. L. E. 8 Q. B. 403. 
 
 Specially. 1 Dall. 208 ; 1 Binn. 254. 
 
 Specie. 5 Hill, 523. 
 
WORDS 
 
 848 
 
 WORDS 
 
 Speeiflc contract. 2 Q. B. D. 286. 
 Specific question. 21 Minn. 366. 
 Spedflcally. 16 Ves. 451. 
 SpedficcMy devised, L. R. 6 H. I* 24. 
 Spiritums. 12 Cush. 272; 2 Gray, 502; 4 
 id. 20. 
 
 Mrituous liquors. 51 N. H. 568 ; 57 Tenn. 15. 
 Spirituous liquors, to wit, whiskey. 23 Minn. 
 549. 
 
 Splint. 1 Moore & S. 623. 
 
 Stab, stick, and thrust. 2 Va. Gas. HI. 
 
 Stable. 1 Lev. 58 ; 3 Mann. & E. 475. 
 
 Stacks of straw. L. R. 2 C. C, 31. 
 
 Stage— Stage-coach. 8 Ad. & E. 386 ; 35 E. C. 
 L. 409 ; 9 Conn. 371 ; 11 id. 385. 
 
 Standing by. 6 Ind. 289. 
 
 State prison. 77 N. C. 319. 
 
 Stationery. 1 Col. Ty. 160. 
 
 Steam boiler. Wright, Ohio, 143. 
 
 Steamboat clause. 32 Fenn. 351. 
 
 Steamship. L. E. 7 Q. B. 566. 
 
 Steers, working cattle. McCahon, 100, 
 
 Sterling. 1 C. & P. 386. 
 
 Stock in the funds. 5 Price, 217. 
 
 Stock vn trade.- Bunb. 38 ; 6 Cent. L. J. 119 ; 
 101 MasB. 329 ; 103 id. 545. 
 
 Stock of hair. 130 Mass. 225. 
 
 Stock or funds of foreign governments. 5 Ch. 
 D. 710. 
 
 Stock subscription. 23 Minn. 439. 
 
 Store. 10 Mass. 153 ; 18 Conn. 433. 
 
 Storehouse. 3 Ired. 570 ; 19 Ala. N. s. 537. 
 
 Storing. 5 Minn. 493. 
 
 Strand. 5 Gray, 335. 
 
 Stranding. L R. 7 C. P. 570. 
 
 Straw. 4 C. & P. 245 ; 1 Mood: Or. Cas. 239. 
 
 Street not being a.highway. L, R. 9 Q. B. 4. 
 
 Stretching along the bay* 3 Johns. 357. 
 
 Strict settlement. 4 Bingh. N. c. 1. 
 • Structure. 46 Conn. 213. 
 
 Subject to incumbrances. 3 P. Wms. 385 ; 2 id. 
 659, n.; 1 Atk. 487. 
 
 Subject to the payment of rent. 5 Penn. 304. 
 
 Submission — Consent. 9 C. & P. 733. 
 
 Subscriber. 6 B. & C. 341 ; L. B. 6 Q. B. 397. 
 
 Substance of the offence charged. L. B. 1 C. C. 
 390. 
 
 Substantial. 58 Mo. 145. 
 
 Substantial inhabitants. 8 B. & C. 63. 
 
 Substantial right. 70 N. Y. 101. 
 
 Substantially. 118 Mass. 441. 
 
 Such. 2 Atk. 292 ; 3 Gray, 68. 
 
 Such heirs. 100 Mass. 280. 
 
 Sudden and unexpected death. 19 Gratt. 758, 
 784. 
 
 Sufficient distress. L, R. 3 Ex. 56. 
 
 Suit at law. 23 Pick. 10. 
 
 Suitable. 105 Mass. 179. 
 
 Suitable bridges. 113 Mass. 161. 
 
 Sum in controversy. 9 S. & R. 301. 
 
 Sum in dispute. L. R. 2 Adm. & E. 67. 
 
 Summit of a momitain. 3 W. & S. 379. 
 
 Superfinefiaur. 9 Watts, 131. 
 
 Supersede. ^ Pick. 261. 
 
 Superstitimis use. 1 Watts, 224. 
 
 Support. A decent and comfortable support 
 and maintenance out of ray estate, in sickness 
 and in health, during my natural life. 3 Sandf. 
 N. T. 91. 
 
 Surety. 2 111. 35 ; 2 N. T. 406. 
 
 Surplus. 18 Ves. 466; 3 Bacon, Abr. 67; 8 
 Penn. 129, 268. 
 
 Surplus earnings. 76 N. T. 64, 74. 
 
 Su/niey, 13 Gray, 497. 
 
 Survivor and survivors. 3 Burr. 1881 ; 8 B. & 
 C. 331. 
 
 Survivors. 5 Ves. 465 ; 17 id. 482. 
 
 Swamp lands. 3 Cent. L. J. 457. 
 
 Swindler, 6 Cush. 185. 
 
 Swindler (as libellous). 3 H. Bl. 531 ; 2 L. K. 
 Ir. 10 ; 7 Bing. 311 ; 4 M. & P. 796 (6). 
 Swine. 15 Mass. 205. 
 Sworn — Sworn to. 7 Allen, 534. 
 Take. 2 Pet. 538 ; 2 N. Y. l.^S. 
 
 Take and fill shares. 10 Me. 478. 
 
 Taken out of the state. 1 Hill, So. C. 150 
 
 Taken with all faults. 3 Q. B. D. 331. 
 
 Taking a franchise. 4 Barb. 405. 
 
 Tapering. 2 Stark. 249. 
 
 Taxed cart. L. R. 7 Q. B. 285. 
 
 Taxes and other public dues. 2 Leigh, 178. 
 
 Tea-kettle and appurtenances. 1 Eq. Cas. Abr. 
 201. 
 
 Team. 15 Barb. 568; 5 How. Pr. 288; 41 
 Conn. 568 ; 16 N. Y. Sup. Ct. 43; 67 N. H. 27. 
 
 Teamster. 34 Cal. 302. 
 
 Ten acres of pease. 1 Brownl. 149, 
 
 Ten days. 8 Cent. L. J. 505. 
 
 Terms cash. 10 Cent. L. J. 156 ; 48 Wise. 105. 
 
 Terra. Cro. Jac. 673 ; 4 Mod. 98 ; Cowp. 349. 
 
 Territory. 9 Gray, 501. 
 
 Testamentary estate. 2 H. Blackst. 444. See 3 
 Brod. & B. 85. 
 
 That is to say. 1 S. & R. 141. 
 
 The county aforesaid. 3 W. Blackst. 847. 
 
 The dangers of the river excepted. 1 Miss. 81 ; 
 2 Bail. So. C. 157. 
 
 The parties shall abide by the award of arbitra- 
 tors. 6 N. H. 163. 
 
 The said SB. 9 C. & P. 315. 
 
 TJie said If. 2 Law Rep. No. C. 75. 
 
 The said plaintiff. 2 Marsh. 101. 
 
 The said property. 3 Mann. & G. 356. 
 
 The same rents and covenants. 1 Bro. P. C. 
 532 ; 3 Atk. 83 ; Cowp. 819 ; 2 Bro. C. C. 639, n. 
 
 The whole of my property. L. R. 12 Eq. iS'J. 
 
 Their heirs at law, or their legal representatiies. 
 SO Penn. 349. 
 
 Them or any of them. 3 S. & R. 393. 
 
 Then. 34 Barb. 645. 
 
 Then and there. 2 Atk. 310 ; 4 Ves. 698 ; 1 
 Ld. Eaym. 123, 577 ; 13 Allen, 162 ; 100 Mass. 12. 
 
 Then next. 9 Cow. 255. 
 
 There. 12 Minn. 490. 
 
 Thereabouts. Moll. Ch. 232. 
 
 Thereafter. 13 La. 556. 
 
 Thereafter built. 3 Leigh, 721. 
 
 Thereafterwards continuing his said assault. 3 
 Mass. 50. 
 
 Therefore the defendant is indebted. 1 Term, 
 716 ; 3 B. & P. 48. 
 
 Thereinbefore mentioned. 7 Ves. 391. 
 
 Thereon. 106 Mass. 400. 
 
 Thereunto belonging. 22 E. C. L. 171. 
 
 Thereupon. 67 Me. 482. 
 
 Thieving (as libellous) . 5 Blackf. 200 ; 26 Ga. 
 423. 
 
 Tilings. 11 Ves. Ch. 666. 
 
 Things in action. L. E. 12 Eq. 3.54. 
 
 Third parties. 1 Mart. N. S. 384. 
 
 Thirds. 2 Allen, 349. 
 
 Thirty days after arrival, L. R, 6 C. P. 190. 
 
 Thirty feet street. 4 Mass. 589. 
 
 This demise. 8 W. Blackst. 973. 
 
 This indenture. 2 Wash. Va. 58. 
 
 Thousand. 3 B. & Ad. 728. 
 
 Threaten and intend. L.B.7Ch.699; 5Ch. D. 
 944. 
 
 Through. 7 Pick. 274. 
 
 Tide-lands. 33 Cal. 354. 
 
 Tillage. L. R. 6 C. P. 470 ; 7 C. P. 73. 
 
 Time. Till she arrives. From her beginning 
 to load. On the ship's arrival. And is there 
 moored twenty-four hours in good safety. 3 
 Chitty, Com. Law, 463. Within four days. 15 
 S. &E. 43. 
 
WORDS 
 
 8*49 
 
 WORDS 
 
 Time Ojforesaid. 101 Mass. 409. 
 Tale. An indefeasible title in fee Blmple, such 
 as the state makes. 8 Bibb, S17 ; 16 Me. 164. 
 To abide event. 23 Alb. L. J. S75. 
 To a stream. 3 Sumu. 170. 
 To arrive eqttal to sample. L. B. 2 C. F. 677. 
 To be begotten. 1 Maule & S. 124. 
 To be by her freely possessed and enjoyed. 13 S. 
 & R. 56 ; Cowp. 352. 
 
 To be kept by the secretary. 1 Scott, N. R. 245. 
 To be paid when in funds. 1 Ala. 173 ; 7 Me. 
 126. 
 
 To be settled. L. E. 4 Eq. 122 ; 13 Eq. 491. 
 To be signed and published by her in the presence 
 of, and to be attested by, two or more credible wit- 
 nesses. Curt. Eccl. 1. 
 
 To do the needful. 4 Esp. 66. 
 To, from, or hy. 14 Me. 198. 
 To his knowledge amd belief. 1 H. Blackst. 245. 
 To low-water mark, 9 Me. 42. 
 To make a mill. 20 Penn. 205. 
 To render a fair and perfect account, in writing, 
 of all sums received. 1 Dougl. 382. 
 To settle. 2 MUes, 1. 
 
 To the best of his knowledge and belief. 8 Term, 
 418 ; 1 Wils. 232. 
 
 To the legatees above named. 17 S. & E. 61. 
 To the order. 1 W. & 8. 418. 
 To the prejudice of the purchm^r. 3 Q. B. D. 
 449. 
 
 To wait a while. 1 Penn. 385. 
 Toll. 3 Show. 34. 
 Ton. 9 Paige, Ch. 188. 
 Tonnage. 103 Mass. 405. 
 Took the oath in such case required by the act of 
 congress. 5 Leigh, 743. 
 
 Tools. 28 Me. 160 ; 5 Mass. 813 ; 124 Mass, 
 418: 2 Wheat. 36 ; 3 Abb. Pr. 466. 
 
 Tools of a mechanic. 10 Cent. L. J. 495. 
 Totally disabled (in insurance policy). 7 Cent. 
 L. J. 15. 
 
 Touch and stay, 1 Marsh. Ins. 188 ; 1 Esp. 
 610. 
 
 Toward. 6 Tex. App. 665. 
 Town. 1 Ex. D. 464 ; 23 Alb. L. J. 373. 
 Township. L. E. 5 Q. B. 391. 
 Transact all business. 1 Taunt. 349 ; 5 B. & 
 Aid. 204 ; 1 T. & C. 394. 
 
 Transaction. 7 Mann. & G. 538. 
 Travelled place. 7 Gray, 98. 
 Traveller. L. R. 4 C. P. 168 ; 6 C. P. 485 ; 1 
 C. P. 824. 
 
 Travelling. 53 Ala. 619 ; 57 N. H. 17. 
 Treasonable practices. 1 Stu. Low. C. 4. 
 Tree. 3 Dev. 163. 
 
 Trifling. 1 W. & S. 828 ; 14 S. & R. 349. 
 Trinkets. 1 Carr. & M. 45. 
 Trouble. 122 Mass. 338. . , „, 
 
 Truck master (as libellous). 5 H. & N. 661 ; 
 29 L. J. Ex. 318 ; 8 W. E. 499 ; 2 L. T. 513. 
 
 True value. 17 Wheat. 419 ; 1 Stu. Low. C. 
 419. 
 
 Tmly. 5 Mann. & G. 696. 
 Turnpike road. 3 Johns. 743. 
 Twelve months certaim. L. E. 9 Ex. 57. 
 mtimately. 6 Me. 60. „„.„«. 
 
 XTnavoiddble accident. 1 Brock. C. C. 187. 
 Unborn person. L. E. 30 Eq. 182. 
 Vncm-tain or contingent (demands under bank- 
 rupt act). 2 Gray, 111. 
 
 Under way. L. B. 2 Adm. & E. 350. 
 Understand. U 8. C. 66. 
 Understood. 2 Cox, Ch. 16. ^ „ „ „. 
 . Undertaking. L. R. 2 Ch. 201 ; 1 P. C. 64. 
 
 Undertaking /or payment of money. L. K. 1 U. 
 C. 341. 
 Underwood. 2 EoUe, 485. 
 Unfinished business. 39 Ga. 39. 
 Union. L. B. 4 Q. B. 592. 
 
 Vol. II.— 54 
 
 Unlawful. 60 Me. 410 ; 4 Mete. 123. 
 Unlawfully. 126 Mass. 349 ; L. R. 1 C. C. 358. 
 Unless. 1 Mer. 103 ; 3 id. 65 ; 3 Burr. 1550. 
 Unless it appears. 106 Mass. 331. 
 Unmarried. 3 B. & Aid. 453 ; 21 E. L. & E. 
 504 J 31 id. 547, Without being married. 7 Ves. 
 458 : L. E. 13 Ex. 105 ; 7 Ch. 7 ; 1 Eq. 675. 
 Unmarried or without children, L. B. 7 H. L. 
 8. 
 
 Unnatural offences (as libellous). 5 East, 463 ; 
 3 Dougl. 90 ; 2 B. & C. 285 (n). 
 
 Unoccupied. 124 Mass. 126; 13 Hun, 371, 
 373, 611 ; 45 N. T. Supr. Ct. 894. 
 
 UntU. Cowp. 571 J 5 East, 250 ; Cas. temp. 
 Hardw. 116; 17 N. T. 503 ; 120 Mass. 94. DntU 
 she hath moored at anchor twenty-four hours in 
 good safety. 2 Stra. 1348 ; 1 Esp. 412. Until 
 discharged and safely landed. 1 Dougl. 510. 
 Unto and amongst. 9 Ves. 446. 
 Unusual num^r. 104 Mass. 597. 
 K) the creek. 10 Ohio, 508. 
 Upon, 37 Iowa, 503. 
 
 Upon the trial of any issue. L. E. 8 C. P. 470. 
 Use a port. 58N. f. 624. 
 Use and benefit. 68 Me. 133. 
 Use and business, 25 Minn. 135. 
 Use tiU paid, Kirb. 145, 
 Usque. 3 Mod. 280. 
 Usual and customary. 77 Penn. 286. 
 Usual business hours. 18 Minn. 133. 
 Usual clauses. 1 Mer. 459. 
 Usual covenants. 7 Ch. D. 555 ; L. E. 1 Eq. 
 477 ; 2 Ch. 67. 
 
 Usual dispatch of the post. L. R. 9 Q. B. 640. 
 Usual place of business. Ill Mass. 320. 
 Usual terms. 8 Mod. 308 ; Barnes, 330. 
 Usually sold. L. E. 4 Q. B.-659. 
 Usurped power, 3 Marsh. Ibs. 700 ; 2 Wils. 
 363. 
 
 Vacancy, 10 Cal. 38. 
 
 Vacant and occupied. 9 Cent. L. J. 477 : 44 
 N. Y. Sup. Ct. 444, 452; 72 N. T. 117 ; 81 N. T. 
 184 ; 10 Cent. L. J. 476. 
 Vagrancy. 41 Mich. 299. 
 Vegetable production. 1 Mood. & M. 341. 
 Valuable security. L. E. 8 Ex. 37. 
 Valuctble things. 1 Cox, Ch. 77 ; 1 Bro. C. C. 
 467. 
 
 Vest. 3 Q. B. D. 376. 
 Vested. 79 N. C. 815. 
 Vested rights. 48 Dl. 331. 
 Vicinity. 13 Gray, 546. 
 
 Victual. Co. 3d Inst. 196: Cro. Car. 231; 
 Bacon, Abr. Forestalling, B ; 1 East, 169. 
 Victualler. 6 W. & 8. 278. 
 Videlieet, 3 Ves. 194. 
 
 Village or town. Co. Litt. 5 ; Plowd. 168 ; 
 Shepp. Touohst, 92. 
 
 Violently. 8 Gray, 490 ; 2 Allen, 163. 
 ! Virtuous. 48 Ga. 192. 
 
 Volunteer. 43 Barb. 239 ; 25 Mich. 340. 
 j Voting paper. L. E. 7 Q. B. 463. 
 ; Wagon. 7 Kan. 320. 
 i Waiving demand and notice. 9 Gray, 301. 
 Wa««o/»-epa»»- (in highway). 13 Gray, 59, 64. 
 Wanton and cruel. 104 Mass. 195. 
 Wantonness. 1 Wheel. Cr. Cas. 365 ; 4 Wash. 
 C. C. 534 ; 1 Hill, So. C. 46, 363. 
 
 Warbles. 9 M. & W. 670. 
 ; Warehouse. 61 Vt. 387. 
 
 Warranted smmdfor one month. L. E. 1 Q. B. 
 463. 
 
 Waste. 1 Ves. Sen. 466 ; 2 id. 71. 
 
 Watch. Ward, Leg. 331 ; Mosel. Ch. 113. 
 
 Water-course. 1 Ex. D. 419. 
 
 Water lots. 14 Pet. 302. 
 
 Water mid — Steam mill. 68 Me. 542. 
 
 Waler.power. 63 Me. 91. 
 
 Ways heretofore enjoyed. L. E. 6 Eq. 36. 
 
WORDS 
 
 850' 
 
 WOEKMAW 
 
 Way) rum occupied or enjoyed. L. R, 10 Q. B. 
 360. 
 
 Ways now used and enjoyed. L. B. 3 Ex. 161. 
 
 We. 5 Me. 333. 
 
 Weapon drawn. Skinn. 666 ; 3 Lev. 255. 
 
 Wearing apparel. 8 Cent. L. J. 86 ; 18 Minn. 
 361. 
 
 Weight, contenU, and value wik/nown. L. B. 2 
 Kx. 267 ; 8 C. P. 88. 
 
 Welcher (as libellous). 27 L. T. 491. 
 
 Well and truly executes the duties of Ms office. 
 4 Pet. 69. 
 
 Well and truly to administer. 9 Mass. 114, 
 370 ; 13 Johns. 441 ; 1 Bay, So. C. 328. 
 
 Well and truly to administer according to law. 
 1 Litt. 93, 100. 
 
 Well, truly, and faithfully administer. 21 
 Minn. 447. 
 
 Westerly part of a street. S7 Me. 43. 
 
 Whaling voyage. 3 Sandf. 26.» 
 
 What I may die possessed of. 8 Yes. 604 ; 3 
 Call, 225. 
 
 What is left (residuary gift). L. R. 1 P. &M. 
 643. 
 
 What remains. 11 Ves. 330. 
 
 When. 6 Ves. 239 ; 11 id. 498 ; 3 Brown, C. 
 C. 471. When able. 3 Esp. 159 ; 3E. C. L. 
 264, note ; 4 Esp. 36. When received. 13 Ves. 
 325, When the same shall he recovered. 13 Yes. 
 325. 
 
 When or if. 1 Hare, 10. 
 
 When paid. 15 S. & E. 114. 
 
 Wherefore he prays judgment, etc. 2 Johns. 
 Cas. 312. 
 
 Whereupon. 6 Term, 573. 
 
 Whilst. 7 East, 116. 
 
 Who shall attain twenty-one, 1 Ch, D, 435. 
 
 Whoever. 102 Mass, 214. 
 
 Wholesale factory prices. 2 Conn. 69. 
 
 Widows and orphans. 2 S. & S. 93. 
 
 Wilful desertion. 115 Mass. 336. 
 
 Wilful misconduct. 5 Cent. L. J. 44. 
 
 Wilfully. 8 Bost. Law Kep. 78 ; 47 Yt. 537 ; 
 34 Wiec. 675 ; 9 Gray, 303 ; 105 Mass. 463. 
 
 WUfully and maliciously. 60 Me. 410 ; 110 
 Mass. 401 ; 122 Mass. 35. 
 
 Will. He will change. 2 Ball & B. 223. 
 
 Winning coal. L. E. 5 Ch. 103. 
 
 Witch (as libellous). Cro. Eliz. 571 ; Sid. 53. 
 
 With. 2 Yern. 466 ; 1 Atk. 469 ; 2 Sch. & L. 
 189 i 3 Mer. 437 ; 2 B. & Aid. 710 ; 2 B. & P. 
 443. 
 
 With all faults. 5 B. & Aid. 240 ; 3 E. C. L. 
 475: 7 id. 82. 
 
 With all tisudl and reasonable covenants. 12 
 Ves. 179, 186 ; 15 id. 528 ; 3 Bro. C. C. 633 ; 3 
 Anstr. 700. 
 
 With effect. 3 W. & S. 33. 
 
 With interest. 1 Allen, 477 ; 112 Mass. 319. 
 
 With liberty. 2 Gill & J. 190. 
 
 With mreties. 2 B. & P. 443. 
 
 With surety. 6 Binn. 53 ; 12 S. & E. 312. 
 
 With the intent to sell. 57 Mass. 567. 
 
 With the prothonotary. 5 Binn. 461. 
 
 Within. 54 Ala. 529 ; 122 Mass. 524. 
 
 Within four days. 15 S. & E. 43. Within 
 
 days after. 3 S. & R. 395. 
 
 Within fowr days from. 119 Mass. 179. 
 
 Within six months after, 101 Mass. 40. 
 
 Without. 2 Allen, 508. 
 
 Without fraud, deceit, or oppression. 6 Wend. 
 454. 
 
 Without prejudice. 2 Chitty, Pract. 24, note 
 (x); 3 Mann. & G. 903. 
 
 Without recourse. 1 Cow. 538 ; 3 Cra. 193 ; 7 
 id. 159 ; 12 Mass. 172 ; 14 8. & E. 325 ; 8 W. & 
 S. 353 ; 2 Penn. 200. See Sans Eeoours. 
 
 Without reserve. 5 Mass. 34 ; 8 Am. L. Beg. 
 241. 
 
 Wittingly. 44 Conn. 357. 
 
 Wm., William. 2 HI. 451. 
 
 Wood. Cro. Jae. 166. 
 
 Wood house. 8 Gray, 566. 
 
 Wooden building. 100 Mass. 114. 
 
 Wood-land. 1 S. & E. 169. 
 
 Workable coal seams. L. E. 3 Ch. 524. 
 
 Working days. 1 Bell, Com. 577. ^ 
 
 Working days (three). 3 Q. B. D. 323. i 
 
 Working tools. 34 Barb. 364. 
 
 Workshop. L. E. 6 Q. B. 718. 
 
 Worldly labor. 4 Bingh. 84 ; 34 Penn. 398. 
 
 Worry. 44 Iowa, 475. 
 
 Worth and value. 3 B. & C. 516. 
 
 WrUing. 8 Ves. 504 ; 17 id. 459 ; 2 Maule & 
 S. 286. 
 
 Writing in pencil. 14 Johns. 484. 
 _ Written. 9 Pick. 312. 
 ■ Written consent. 6 Cent. L. J. 18. 
 
 Tear. 10 Q. B. 329. 
 
 Yearly meeting of Quakers. 6 Conn. 293. 
 
 Yielding and rendering. 9 N. T. 9. 
 
 Yoke of oxen. 16 Kans. 294. 
 
 You. 2 Dowl. 145. 
 
 Younger children. L. E. 2 H. L. Sc. 203. 
 
 Youngest child. 24 Minn. 180. 
 
 Youth. 2 Cush. 528. 
 
 VrORE AND LABOR. In actions of 
 assumpsit it Is usual to put in a count, com- 
 monly called a common count, for work and 
 labor done and materials furnished by tlie 
 plaintiff for the defendant ; and when the 
 work was not done under a special contract 
 the plaintiff will be entitled to recover on the 
 common count for vrork, labor, and materials. 
 4 Tyrwh. 43 ; 2 Carr. & M. 214. See As- 
 sumpsit ; Quantum Meruit. 
 
 WORKHOUSE. A prison where prison, 
 ers are kept in employment ; a penitentiary. 
 A house where the poor are taken care of and 
 kept in employment. 
 
 WORKING!' DAYS. In settling lay- 
 days, or days of demurrage, sometimes the 
 contract specifies "working days;" in the 
 computation, Sundays and custom-house holi- 
 days are excluded ; 1 Bell, Com. 577. See 
 Demurrage ; Lay-Days. 
 
 Working or lay-days, by the general rule, do 
 not commence until the vesse) has arrived at 
 the usual place for unloading ; 1 H. & C. 388. 
 But where such place lis a dock, it has been held 
 that they begin when she enters the dock, and 
 not when she reaches her place of discharge in 
 the dock ; 1 Bing. N. C. 283. The parties may, 
 however, stipulate as they please as to the time 
 when they shall commence; 5 Bing. N. C. 71. 
 And it sometimes depends on the usage of the 
 port ; 24 E. L. & Eq. 305. Usage, however, 
 cannot be admitted to vary the express terms of 
 the contract ; Pars. Ship. & Adm. 313. 
 
 WORKMAN. One who labors ; one who 
 is employed to do business for another. 
 
 The obligations of a workman are to per- 
 form the work he has undertaken to do, to do 
 it in proper time, to do it well, to employ the 
 things furnished him according to his con- 
 tract. 
 
 His rights are to be paid what his work 
 is worth, or what it deserves, and to have all 
 the facilities which the employer can give 
 him for doing his work ; 1 Bouvier, Inst. n. 
 1000. 
 
WORSHIP 
 
 851 
 
 WRIT OP ASSISTANCE 
 
 WPKSHIP. Honor and homage ren- 
 dered to God. 
 
 In the United States this is free, every one 
 being at liberty to worship God according to 
 the dictates of his conscience. See 20 Alb. 
 L.J. 424; Christianity; Disturbance 
 OF Public Worship ; Religion. 
 
 In English La'w. A title or addition 
 given to certain persons. Co. 2d Inst. 666 ; 
 Bacon, Abr. Misnomer (A 2). 
 
 -WORTHIEST OP BLOOD. An ex- 
 pression used to designate that in descent the 
 sons are to be preferred to daughters, which 
 is the law of England. See some singular 
 reasons given for this, in Plowd. 305. 
 WOUND. Any lesion of the body. 
 
 In this it differs from the meaning of the word 
 when used in surgery. The latter only refers to 
 a solution of continuity ; while the former com- 
 prises not only these, but also every other kind 
 of accident, such as bruises, contusions, frac- 
 tures, dislocations, and the like. Cooper, Surg. 
 Diet.; Dunglison, Med. Diet. See Dictionnaire 
 des Sciences medicates, mot £lessures; 3 Fod^re, 
 Mid. L4g. §§687-811. 
 
 Under the statute 9 Geo. IV. c. 21, :). 12, 
 it has been held in England that to make a 
 wound, in criminal cases, there must be an 
 injury to the person by which the skin is 
 broken ; 6 C. & P. 684. See 6 Mete. 565 ; 
 Beck, Med. Jur. c. 15; Ryan, Med. Jur. 
 Index ; Rose. Cr. Ev. 652 ; 1 Mood. Cr. 
 Cas. 278, 318 ; 4 C. «e P. 381,- 558 ; Guy, 
 Med. Jur. c. 9, p. 446; Merlin, R6pert. 
 Blessure. 
 
 When a person is found dead from wounds, 
 it is proper to inquire whether they are the 
 result of suicide, accident, or homicide. In 
 making the examination, the greatest attention 
 should be bestowed on all the oircumstances. 
 On this subject some general directions have 
 been given under the article I>eath. The 
 reader is referred to 2 Beck, Med. Jur. 68- 
 9."!. As to wounds on the living body, see 
 id. 188. 
 
 WRECEl (called in law Latin wreccum 
 maris, and in law French wrec de mer). 
 
 Such goods as after a shipwreck are cast 
 upon the land by the sea, and left there 
 within some country so as not to belong to 
 the jurisdiction of the admiralty, but to the 
 common law. Co. 2d Inst. 167 ; 1 Bla. Com. 
 290. 
 
 A ship becomes a wreck when, in conse- 
 quence of injuries received, she is rendered 
 absolutely unnavigable, or unable to pursue 
 her voyage, without repairs exceeding the 
 half of her value ; 6 Mass. 479 ; s. c. 4 Am. 
 Dec. 163. A sunken vessel is not a wreck, 
 but derelict ; wreck applies to property cast 
 upon land by the sea ; 7 N. T. 555. 
 
 Goods found at low water, between high 
 and low water mark, and goods between the 
 same limits partly resting on the ground, but 
 still moved by the water, are wreck; The 
 King vs. Forty-Nine Casks of Brandy, 3 
 Hagg. Adm. 257, 294. Wreck, by thecom- 
 monlaw, belongs to the king or his grantee ; 
 
 but if claimed by the true owner within a 
 year and a day the goods, or their proceeds, 
 must be restored to him, by virtue of stat. 
 Westm. I., 3 Edw. I. c. 4. Ships and goods 
 found derelict or abandoned at sea belonged 
 until lately to the office of the lord high ad- 
 miral, by a grant from the crown, but now 
 belong to the national exchequer, subject, 
 however, to be claimed by the true owner 
 within a year and a day ; 1 Hagg. 383 ; The 
 Merchant Shipping Act, 1854, § 475. 
 
 But in America the king's right in the sea- 
 shore was transferred to the colonies, and 
 therefore wreck cast on the sea-shore belongs 
 to the owner of the shore, as against a mere 
 stranger, if not reclaimed ; 13 Pick. 255; B. 
 c. 24 Am. Deo. 678 ; see, also, 113 Mass. 
 377. 
 
 In this country, the several states border- 
 ing on the sea have enacted laws providing 
 for the safe keeping and disposition of pro- 
 perty wrecked on the coast. In one case, 
 Peabody vs. 28 Bales of Cotton, decided in 
 the district court of Massachusetts, and re- 
 ported in the American Jurist for July, 1829, 
 it was held that the United States have suc- 
 ceeded to the prerogative of the British 
 crown, and are entitled to derelict ships or 
 goods found at sea and unclaimed by the true 
 owner ; but in the southern district of Florida 
 it is held that such derelicts, in the absence 
 of any act of congress on the subject, belong 
 to the finder or salvor, subject to the claim of 
 the true owner for a year and a day. Mar- 
 vin, Wreck and Salvage. Stealing, plunder- 
 ing, or destroying any money or goods from 
 or belonging to any vessel, boat, or raft, in 
 distress, lost, or stranded, wilfully obstructing 
 the escape of any person endeavoring to save 
 his life from such ship, boat, or raft, holding 
 out or showing any false light or lights, or ex- 
 tinguishing any true one, with intention to 
 bring any vessel, boat, or raft on the sea into 
 danger, or distress, or shipwreck, are made 
 felony, punishable by fine and imprisonment, 
 by act of congress of the 3d March, 1825, 
 4 Stat, at L. 115 ; R. S. § 5358 ; 12 Pet. 
 72. Wrecked goods upon a sale or other act 
 of voluntary importation become liable to 
 duties; 9 Cra. 387; 4 id. 347. See Sal- 
 vage ; Total Loss. 
 
 ■WRIT. A mandatory precept, issued by 
 the authority and in the name of the sovereign 
 or the state, for the purpose of compelling 
 the defendant to do something therein men- 
 tioned. 
 
 It is issued by a court or other competent 
 jurisdiction, and is returnable to the same. It 
 is to be under seal and tested by the proper 
 officer, and is directed to the sheriff or other 
 officer lawfully authorized to execute the 
 same. Writs are divided into — original, of 
 mesne process, of execution. See 3 Bla. 
 Com. 273 ; 1 Tidd, Pr. 93 ; Gould, PI. e. 2, 
 s. 1. 
 
 WRIT OP ASSISTANCE. A writ 
 issuing out of chancery in pursuance of an 
 
WRIT OF ASSOCIATION 
 
 852 
 
 WRIT OP EXIGI FACIAS 
 
 order, commanding the sherifiF to eject the 
 defendant from certain lands and to put the 
 plaintiff in possession. Cowel; 3 Steph. 
 Com. 602 ; also an ancient writ issuing out of 
 the exchequer. Moz. & W. 
 
 ■WRIT OP ASSOCIATION. In Eng- 
 lish Practice. A writ whereby certain 
 persons (usually the clerk of assize and his 
 subordinate officers) are directed to associate 
 themselves with the justices and sergeants ; 
 and they are required to admit the said per- 
 sons into their society in order to take the as- 
 sizes. 3 Bla. Com. 59. See Assize. 
 
 VTRIT DE BONO ET MAIiO. See De 
 Bono et Malo ; Assize. 
 
 WRIT OP CONSPIRACY. The name 
 of an ancient writ, now superseded by the 
 more convenient remedy of an action on the 
 case, which might have been sued against 
 parties guilty of a conspiracy. Fitzh. BT. B. 
 260. See Conspiracy. 
 
 It did not lie at common law, in any case, 
 except when the conspiracy was to indict the 
 party either of treason or felony ; all the 
 other cases of conspiracy in the books were 
 but actions on the case; 7 Hill, N. Y. 104. 
 
 WRIT OP COVENANT. A writ which 
 lies where a party claims damages for breach 
 of covenant, i. e. of a promise under seal. 
 
 WRIT OP DEBT. A writ which lies 
 where the party claims the recovery of a debt, 
 i. e. a liquidated or certain sum of money 
 alleged to be due to him. 
 
 This is debt in the debet, which is the principal 
 and only common form. There is another spe- 
 cies mentioned in the books, called the debt in\ 
 the detinet, which lies for the specific recovery of 
 goods under a contract to deliver them. 1 Chitty , 
 PI. 101. 
 
 WRIT OP DECEIT. The name of a 
 writ which lies where one man has done 
 any thing in the name of another, by which 
 the latter is damnified and deceived. Fitzh. 
 N. B. 217. 
 
 The modern practice is to sue a writ of 
 trespass on the case to remedy the injury. 
 sSee Deceit. 
 
 WRIT OP DETINUE. A writ which 
 lies where a party claims the specific recovery 
 of jgoods and chattels, or deeds and writings, 
 detained from him. This is seldom used: 
 trover is the more frequent remedy, in cases 
 where it may be brought. 
 
 W^RIT OP DOWER. A writ which lies 
 for a widow claiming the specific recovery of 
 her dower, no part having been yet assigned 
 to her. It is usually called a writ of dower 
 unde nihil habet. 3 Chitty, PI. 393 ; Booth, 
 166. 
 
 There is another species, called a writ of 
 right of dower, which applies to the particu- 
 lar case where the widow has received a part 
 of her dower from the tenant himself, and 
 of land lying in the same town in which she 
 claims the residue. Booth, 166 ; Glanville, 
 lib. 6, c. 4, 5. This latter writ b seldom used 
 in practice. 
 
 WRIT DB EJECTIONS FIRM.3!. 
 
 See Ejectment. 
 
 WRIT OP EJECTMENT. The name 
 of a process issued by a party claiming land 
 or other real estate, against one who is alleged 
 to be unlawfully in possession. See Eject- 
 
 MENT. 
 
 WRIT OP ENTRY. See Entey, 
 Writ of. 
 
 WRIT OP ERROR. A writ issued out 
 of a court of competent jurisdiction, directed 
 to the judges of a court of record in which 
 final judgment has been given, and command- 
 ing them, in some cases, themselves to exam- 
 ine the record, in others to send it to another 
 court of appellate jiirisdiction, therein named, 
 to be examined, in order that some alleged 
 error in the proceedings may be corrected'. 
 Steph. PI. 138 ; 2; Saund. 100, n. 1 ; Bacon, 
 Abr. Error. 
 
 The first is called a. writ of error coram 
 nobis or vobis. When an issue in fact has 
 been decided, there is not, in general, any 
 appeal except by motion for a new trial ; and 
 although a matter of fact should exist which 
 was not brought into the issue; as, for ex- 
 ample, if the defendant neglected to plead' a 
 release, which he might have pleaded, this is 
 no error in the proceedings, though a mistake 
 of the defendant ; Steph. PI. *118. But 
 there are some facts which affect the validity 
 and regularity of the proceeding itself ; and 
 to remedy these errors the party in interest 
 may sue out the writ of error coram vobis-. 
 The death of one of the parties at the com- 
 mencement of the suit, the appearance of an 
 infant in a personal action by an attorney and 
 not by guardian, the coverture of either party 
 at the commencement of the suit, when her 
 husband is not joined with her, are instances 
 of this kind; 1 Saund. 101; 1 Arch. Pr. 
 212; 2Tidd, Pr. 1033; Steph. PI. *119; 1 
 Browne, Pa. 75. 
 
 The second species is called, generally, writ 
 of error, and is the more common. Its object 
 is to review and correct an error of the law 
 committed in the proceedings, which is not 
 amendable or cured at common law or by some 
 of the statutes of amendment or jeofail. See, 
 generally, Tidd, Pr. 43 ; Bacon, Abr. Error ; 
 1 Vern. 169;^ Yelv. 76; 1 Salk.- 322; 2 
 Saund. 46, n. 6, and 1-01, n. 1 ; 3 Bla. Com. 
 405. 
 
 It lies only to remove causes from a court 
 of record. It is in the nature of a suit or 
 action when it is to restore the party who 
 obtains it to the possession of anything 
 which is withheld from him, not when its 
 operation is entirely defensive ; 3 Story, 
 Const. § 1721. And it is considered, gene- 
 rally, as a new action ; 16 Ala. 9. See Ap- 
 
 PEAI.. 
 
 W^RIT OP EXECUTION. A writ to 
 put in force the sentence that the law has 
 given. See Execution. 
 
 WRIT OP EXIG-I PACIAS. See Exi- 
 gent ; Exigi Facias ; Outlawry. 
 
WRIT OF FORMEDON 
 
 853 
 
 WRIT OF SUMMONS 
 
 WRIT OP FORMEDON. This writ 
 lies where a party claims the specific recovery 
 of lands and tenements as issue in tail, or as 
 remainder-man or reversioner, upon the de- 
 termination of an estate in tail. Co., Litt. 
 236 6; Booth, R. A. 139, 151, 154. See 
 
 FORMEDON. 
 
 -WRIT DE HiERETICO COMBU- 
 RENDO. In English Iiayrr. The name of 
 a writ formerly issued by the secular courts, 
 when a man was turned over to them by the 
 ecclesiastical tribunals after having been con- 
 demned for heresy. 
 
 It was founded on the statute 2 Hen. IV. 
 c. 15 ; it was first used a.d. 1401, and as late 
 as the year 1611. By virtue of this writ, the 
 unhappy man against whom it wasjssued was 
 burned to death ; see 12 Co. 92. 
 
 -WRIT DE HOMINE REFLEGIAN- 
 DO. See De Homine Replegiando. 
 
 ■WRIT OP INQXHR-S". See Inquisi- 
 tion ; Inquest. 
 
 WRIT OP MAINPRIZE. In English 
 Lav7. A writ directed to the sheriff (either 
 generally, when any man is imprisoned for a 
 bailable offence and bail has been refused, or 
 specially, when the offence or cause of com- 
 mitment is not properly bailable below), com- 
 manding him to take sureties for the priso- 
 ner's appearance, commonly called main- 
 pernors, and to set him at large. 3 Bla. 
 Com. 128. See Mainpeize. 
 
 WRIT OF MESNE. In Old English 
 Law. A writ which was so called by reason 
 of the words used in the writ, namely, Unde 
 idem A qui medius est inter C et prCBfatum 
 B ; that is. A, who is mesne between C, the 
 lord paramount, and B, the tenant paravail. 
 Co.. Litt. 100 a. 
 
 WRIT DE ODIO BT ATIA. See De 
 Odio et Atia ; Assize. 
 
 WRIT OP PR.aiCIPB. This writ is 
 also called a writ of covenant, and is sued 
 out by the party to whom lands are to be 
 conveyed by fine, — the foundation of which 
 is a supposed agreement or covenant that the 
 one shall convey the land to the other. 2 
 Bla. Com. 349. 
 
 ■WRIT OF PREVENTION. This name 
 is given to certain writs which may be issued 
 in anticipation of suits which may arise. 
 Co. Litt. 100. See Quia Timet. 
 
 ■WRIT OP PROCESS. See Process ; 
 Action. 
 
 ■WRIT OF PROCLAMATION. A 
 writ which issues at the same time with the 
 exigi facias, by virtue of stat. 31 Eliz. c. 3, 
 s. 1, by which the sheriff is commanded to 
 make proclamations in the statute pre- 
 scribed. . 
 
 "When it is not directed to the same shenfl 
 as the writ of exigi facias is, it is called a 
 foreign writ of proclamation. Lee, Diet.; 4 
 Reeve, H. E. L. 261. 
 
 W^RIT OP QUARE IMPEDIT. See 
 
 QUAEE ImPEDIT. 
 
 ■WRIT DE RATIONABILI PARTE 
 BONORUM. A writ which was sued out 
 by a widow when the exectors of her deceased 
 husband refused to let her have a third part 
 of her late husband's goods, after the debts 
 were paid. Fitzh. N. B. 284. 
 
 WRIT OP RECAPTION. A writ 
 which lies where, pending an action of re- 
 plevin, the same distrainer takes, for the 
 same supposed cause, the cattle or goods of 
 the same distrainee. See Fitzh. N. B. 169. 
 
 This writ is nearly obsolete, as trespass, 
 which is found to be a preferable remedy, 
 lies for the second taking; and, as the de- 
 fendant cannot justify, the plaintiff must ne- 
 cessarily recover damages proportioned to the 
 injury. 
 
 -WRIT OP REPLEVIN. See Reple- 
 
 TIN. 
 
 WRIT OP RESTITUTION. A writ 
 which is issued on the reversal of a judgment 
 commanding the sheriff to restore to the de- 
 fendant below the thing levied upon, if it has 
 not been sold, and, if it has been sold, the 
 proceeds. Bacon, Abr. Execution (Q). See 
 Restitution. 
 
 WRIT PRO RETORNO HABENDO. 
 In Practice. The name of a writ which 
 recites that the defendant was summoned to 
 appear to answer the plaintiff in a plea 
 whereof he took the cattle of the said plain- 
 tiff (specifying them), and that the said plain- 
 tiff afterwards made default, wherefore it was 
 then considered that the said plaintiff and his 
 pledges of prosecuting should be in mercy, 
 and that the said defendant should go without 
 day, and that he should have return of the 
 cattle aforesaid. It then commands the sheriff 
 that he should cause to be returned the cattle 
 aforesaid to the said defendant without delay, 
 etc. 2 Sell. Pr. 168. 
 
 ■WRIT OF RIGHT. The reinedy ap- 
 propriate to the case where a party claims 
 the specific recovery of corporeal heredita- 
 ments in fee-simple, founding his title on the 
 right of property, or mere right, arising either 
 from his own seisin or the seisin of his ances- 
 tor or predecessor. Fitzh. N. B. 1 (B) ; 3 
 Bla. Com. 391. 
 
 At common law, a writ of right lies only 
 against the tenant of the freehold demanded ; 
 8 Cra. 239. 
 
 This writ brings into controversy only the 
 rights of the parties in the suit ; and a de- 
 fence that a third person has better title will 
 not avail; 7 Wheat. 27; 3 Pet. 133; 3 
 Bingh. N. s. 434 ; 4 Scott, 209 ; 6 Ad. & E. 
 103 ; 2 B. & P. 570 ; 4 id. 64 ; 2 C. & P. 
 187,271; 8 Cra. 229; 11 Me. 312; 7 Wend. 
 250 ; 3 Bibb, 57 ; 3 Rand. 563 ; 2 J. J. 
 Marsh. 104; 4 Mass. 64; 17 id. 74. 
 
 WBIT OF SUMMONS. See Sum- 
 
 MONS. 
 
WRIT OF TOLL 
 
 854 
 
 WYOMING 
 
 WRIT OP TOLL. In English Law. 
 The name of a writ to remove proceedings 
 on a writ of right patent from the court-baron 
 into the county court. 3 Bla. Com. App. No. 
 1, §2. 
 
 WRIT OF TRIAL. In EngUsb Law. 
 A writ directing an action brought in a supe- 
 rior court to be tried in an inferior court or 
 before the under-sheriff, under stat. 3 & 4 
 AVill. IV. c. 42. It is now superseded by 
 . the County Courts Act of 1867, c. 142, s. 6, 
 by which a defendant in certain cases is en- 
 abled to obtain an order that the action be 
 tried in a county court ; 8 Steph. Com. 515, n. ; 
 Moz. «E W. 
 
 WRIT OP WASTE. The name of a 
 writ to be issued against a tenant who has 
 committed waste of the premises. There 
 are several forms of this writ. That against 
 a tenant in dower differs from the others. 
 Fitzh. N. B. 1-25. See Waste. 
 
 W^RITER OP THE TALLIES. In 
 England. An officer of the exchequer whose 
 duty it was to write upon the tallies the let- 
 ters of tellers' bills. The office has long been 
 abolished. See Tally. 
 
 WRITERS TO THE SIGNET. In 
 Scotch Law. Anciently, clerks in office of 
 the secretary of state, by whom writs pass- 
 ing the king's signet were prepared. Their 
 duty now is to prepare the warrants of all 
 lands flowing from the .crown, and to sign 
 almost all diligencies of the law afiepting the 
 person or estate of a debtor, or for compel- 
 ling implement of decree of superior court. 
 They may act as attorney or agent before 
 court of sessions, and have various privileges. 
 Bell, Diet. Cleric to Signet. Under the 
 Stamp Act of 33 & 34 Vict. c. 97, any writer 
 to the signet practising in any court without 
 having taken out an annual certificate, will 
 forfeit the sum of £50. Moz. & W. • ' 
 
 WRITING. The act of forming by the 
 hand letters or characters of a particular 
 kind, on paper or other suitable substance, 
 and artfully putting them together so as to 
 convey ideas. 
 
 It differs from printing, which is the formation 
 of words on paper or other proper substance by 
 means of a stamp. Sometimes by writing is 
 understood printing, and sometimes printing and 
 writing mixed. See 9 Pick. 313. 
 
 Many contracts are required to be in writing ; 
 all deeds for real estate must be in writing, for 
 It cannot be conveyed by a contract not in writ- 
 ing, yet it is the constant practice to make deeds 
 partly in printing and partly in writing. Wills, 
 except nuncupative wills, must be in writing, 
 and signed by the testator; and nuncupative 
 wills must be reduced to writing by the wit- 
 nesses within a limited time after the testator's 
 death. 
 
 Records, bonds, bills of exchange, and many 
 other engagements must, from their nature, be 
 made in writing. 
 
 See Alteration ; FoseEBT; Feaxjds, Stat- 
 ute OF ; Lanouagb. ^ 
 
 WRITING OBLIGATORY. A bonii ; 
 an agreement reduced to writing, by which 
 
 the party becomes bound to perform some- 
 thing, or suffer it to be done. 
 
 WRITTEN INSTRUMENT. A judg- 
 ment and a tax duplicate have been held not 
 to be written instruments, within the meaning 
 of a statute requiring a copy to be filed with 
 the pleadings ; 38lnd. 48; 39 id. 172. 
 
 WRONG. An injury ; a tort; a violation 
 of right. 
 
 In Its most usual sense, wrong signifies an in- 
 jury committed to the person or property of an- 
 other, or to his relative rights unconnected with 
 contract ; and these wrongs are committed with 
 or without force. But in a more extended signi- 
 fication, wrong includes the violation of a con- 
 tract ; a failure by a man to perform his under- 
 taking or promise is a wrong or Injuiy to him to 
 whom it Was made. 3 Bla. Com. 158. 
 
 A public wrong is an act which is injurious 
 to the public generally, commonly known 
 by the name of crime, misdemeanor, or of- 
 fence ; and it is punishable in various ways, 
 such as indictments, summary proceedings, 
 and, upon conviction, by death, imprison- 
 ment, fine, etc. 
 
 Private wrongs, which are injuries to indi- 
 viduals, unaffecting the public ; these are re- 
 dressed by actions for damages, etc. See 
 Remedies ; Tokt. 
 
 WRONG-DOER. One who commits an 
 injury ; a tort-feasor. See Dane, Abr. In- 
 dex. 
 
 WRONGFULLY INTENDING. In 
 
 Pleading. Words used in a declaration 
 when in an action for an injury the motive of 
 the defendant in committing it can be proved; 
 for then his malicious intent ought to be 
 averred. This is' sufficiently done if it be 
 substantially alleged, in general terms, as 
 wrongfully intending. 3 Bouvier, Inst. n. 
 2875. 
 
 WYOMING. One of the territories of 
 the United States. 
 
 By act of congress, approved July 25, 1868, 
 the territory of Wyoming is constituted and de- 
 scribed as follows : All that part of the United 
 States commencing at the intersection of the 
 twenty-seventh meridian of longitude west from 
 Washington, with the forty-fifth degree of north 
 latitude ; and running thence west to the thirty- 
 fourth meridian of west longitude ; thence south 
 to the forty-first degree of north latitude ; thence 
 east to the twenty-seventh meridian of west 
 longitude, and thence north to the place of be- 
 ginning. The distribution of powers under the 
 organic act creating the territory does not differ 
 materially from that of the other territories. 
 See Montana ; New Mexico. 
 
 By the Act of March ■ 1, 1872, congress has 
 enacted that the tract of land in the territories 
 of Montana and Wyoming, lying near the head- 
 waters of the Yellowstone Elver, commencing at 
 the junction of Gardiner's Elver with the Yel- 
 lowstone Elver, and running east to the meridian 
 passing ten miles to the eastward of the most 
 eastern point of Yellowstone Lake ; thence south 
 along said meridian to the parallel of latitude 
 passing ten miles south of the most southern 
 point of Yellowstone Lake ; thence west along 
 said parallel to the meridian passing fifteen 
 miles west of the most western point of Madi- 
 
YAED 
 
 855 
 
 YEAK AND DAY 
 
 Bon Lake ; thence nortli along eaid meridian to 
 the latitude of the junction of the Yellowstone and 
 Gardiner's Rivers ; thence east to the place of be- 
 ginning, — shall be reserved and withdrawn from 
 settlement, occupancy, or sale under the laws of 
 
 the United States, and dedicated and set apart 
 as a public park or pleasuring ground for the 
 benefit and enjoyment of the people, under the 
 exclusive control of the Secretary of the Inte- 
 rior; R. 8. §§3474,2475. 
 
 Y. 
 
 YARD. A measure of length, containing 
 three feet, or thirty-six inches. 
 
 A piece of land inclosed for the use and 
 accommodation of the inhabitants of a house. 
 In England it is nearly synonymous with 
 backside. 1 Chitty, Pr. 176 ; 1 Term, 701. 
 
 TARDLAND. In Old Bnglish Law. 
 A quantity of land containing twenty acres. 
 Co. Litt. 69 a. 
 
 YEAR. The period in which the revolu- 
 tion of the earth round the sun, and the 
 accompanying changes in the order of nature, 
 are completed. 
 
 The civil year differs from the astronomi- 
 cal, the latter being composed of three hun- 
 dred and sixty-five days, five hours, forty- 
 eight seconds and a fraction, while the former 
 consists sometimes of three hundred and 
 sixty-five days, and at others, in leap-years, 
 of three hundred and sixty-six days. 
 
 The year is divided into half-year, which 
 consists, according to Co. Litt. 135 b, of one 
 hundred and eighty-two days ; and quarter of 
 a year, which consists of ninety-one days. 
 Id.; 2 RoUe, Abr. 521, 1. 40. It is further 
 divided into twelve months. 
 
 The civil year commences immediately after 
 twelve o'clock at night of the thirty-first day 
 of December, that is, the first moment of the 
 first day of January, and ends at midnight 
 of the thirty-first day of December twelve 
 months thereafter. See Comyns, Dig. An- 
 nus; 2 Chitty, Bla. Com. 140, n.; Chitty, 
 Pr. Index, Time. Before the alteration of 
 the calendar from old to new style in Jlng- 
 land (see Bissextile) and the colonies of 
 that country in America, the year in chrono- 
 loirical reckoning was supposed to commence 
 wfth the first day of January, although the 
 legal year did not commence until March 25, 
 the intermediate time being doubly indi- 
 cated; thus February 15, 172|, and so on. 
 This mode of reckoning was altered by the 
 statute 24 Geo. II. c. 23, which gave rise to 
 an act of assembly of Pennsylvania, passed 
 March, 11, 1752, 1 Smith, Laws, 217, con- 
 forming thereto, and also to the repeal of the 
 actofr710. , , ^ ' 
 
 In New York it is enacted that whenever 
 the term "year" or "years" is or shall be 
 
 used in any statute, deed, verbal or written 
 contract, or any public or private instrument 
 whatever, the year intended shall be taken to 
 consist of three hundred and sixty-five days ; 
 half a year, of a hundred and eighty-two 
 days ; and a quarter of a year, of ninety-two 
 days ; and the day of a leap year, and the 
 day immediately preceding, if they shall oc- 
 cur in any period so to be computed, shall be 
 reckoned together as one day. Rev. Stat. 
 vol. 2 ; c. 19, t. 1, § 3. See Age ; Yeaes ; 
 Allowance. 
 
 The omission of the word " year" In an Indict- 
 ment is not Important, provided the proper 
 numerals are written after the month and day of 
 the mouth ; 23 Minn. 67. An indictment which 
 states the year of the commission of the offence 
 in figures only, without prefixing" A. D." is in- 
 sufficient ; 5 Gray, "91 ; but It has been held 
 otherwise In Maine under a statute ; 47 Me. 388. 
 
 YEAR AND DAY. A period of time 
 much recognized in law. 
 
 It is not in all cases limited to a precise calen- 
 dar year. In Scotland, in computing the term, 
 the year and day is to be reckoned, not by the 
 number of days which go to make up a year, 
 but by the return of the day of the next year that 
 bears the same denomination ; 1 Bell, Com. 
 731 ; 3 Stair, Inst. 843. See Bacon, Abr. De- 
 scent (I 3) ; Erskine, Inst. 1. 6. 33. In the law 
 of all the Gothic nations, it meant a year and 
 six weeks. 
 
 It is a term frequently occurring : for ex- 
 ample, in case of an estray, if the owner chal- 
 lenged it not within a year and a day, it be- 
 longed to the lord ; 5 Co. 108. So of a 
 wrecE; Co. 2d Inst. 168. This time is given 
 to prosecute appeals and for actions in a writ 
 of right, and, after entry or claim, to avoid 
 a fine ; Plowd. 357 a. And if a person 
 wounded die in that time, it is murder ; Co. 
 3d Inst. 53 ; 6 Co. 107. So, when a judg- 
 ment is reversed, a party, notwithstanding 
 the lapse of time mentioned in the statute of 
 limitations- pending that action, may. com- 
 mence a fresh action within a year and a day 
 of such reversal ; 3 Chitty, Pr. 107. Again, 
 after a year and a day have elapsed from the 
 day of signing a judgment no execution can be 
 issued till the judgment be revived by scire 
 facias ; Bacon, Abr. Execution (H); Tidd, 
 Pr. 1108. 
 
YEAR-BOOJKS 
 
 856 
 
 YOUTH 
 
 Protection lasted a year and a day ; and 
 if a villein remain from his master a year and 
 a day in an ancient demesne, he is free ; Cun- 
 ningham, Diet. If a person is afraid to 
 enter on his land, he may make claim as near 
 as possible, — which is in force for a year and a 
 day; 3 Bla. Com. 175. In case of prize, if 
 no claim is made within a year and a day, 
 the condemnation is to captors as of course ; 
 2 Gall. 388. So, in case of goods saved, 
 the court retains them till claim, if made 
 within a year and a day, but not after that 
 time ; 8 Pet. 4. 
 
 The same period occurs in the Civil Law, 
 in Book of Feuds, the Laws of the Lom- 
 bards, etc. 
 
 'Z'liAR-BOOKS. Books of reports of 
 cases in a regular series from the reign of the 
 English King Edward II., inclusive, to the 
 time of Henry VIII., which were taken by 
 the prothonotaries or chief scribes of the 
 courts, at the expense of the crown, and 
 published annually, — whence their name 
 Year-Books. They consist of eleven parts, 
 namely: — Parti. Maynard's Reports temp. 
 Edw. II. ; also divers Memoranda of the 
 Exchequer temp. Edward I. Part 2. Re- 
 ports in the first ten years of Edw. III. 
 Part 3. Reports from 17 to 39 Edward III. 
 Part 4. Reports from 40 to SO Edwaa-d III. 
 Part 5. Liber Assisarura ; or, Pleas of the 
 Crown temp. Edw. III. Part 6. Reports 
 temp. Hen. IV. & Hen. V. Parts 7 & 8. 
 Annals ; or Reports of Hen. VI. during his 
 reign,, in 2 vols. Part 9. Annals of Edward 
 IV. Part 10. Long Qninto ; or Reports in 
 5 Edward IV. Part 11. Cases in the reigns 
 of Edward V., Richard III., Henry VII., 
 and Henry VIII. A reference to them by a 
 learned judge as mere "lumber garrets of 
 obsolete feudal law," indicates their practical 
 value in modern times; Wallace, Reporters; 
 2 Wall. Jr. 309. 
 
 YEAR, DAY, AND WASTE (Lat. 
 annus, dies, et vastum) is a part of kmg's 
 prerogative, whereby he takes the profits 
 of the lands and tenements of those at- 
 tainted of petty treason or felony, for a year 
 and a day, but, in the end, may waste the 
 tenements, destroy the houses, root up the 
 woods, gardens, and pasture,, and plough up 
 the meadows (except the lord of the fee agree 
 with him for redemption of such waste) ; 
 after which the lands are to be restored to 
 the lord of the fee. Staundford, Prerog. c. 
 16, fbl. 44. By Magna Charta, it would ap- 
 pear that the profits for a year and a day were 
 given in lieu of the waste. 9 Hen. III. c. 22. 
 But 17 Edw. II. declares the king's right to 
 both. 
 
 YEARS, ESTATE FOR. See Estate 
 FOR Years. 
 
 YEAS AND NAYS. The list of mem- 
 bers of a legislative body voting in the af- 
 firmative and negative of a proposition. 
 
 The constitution of the United States, art. 1, 
 
 s. 6, directs that " the yeas and nays of the mem- 
 bers of either house, on any question, shall, at the 
 desire of one-flfth of those present, be entered on 
 the journal. ' See 2 Story, Const. 301. 
 
 Constitutional provisions in some states re- 
 quire the yeas and nays to be entered on the 
 journal on the final passage of every bill. See 
 68 111. 160 ; 32 Mich. 104 ; 54 N. T. 276. These 
 directions are clearly imperative : Cooley, Const. 
 Lira. 171. 
 
 The power of calling the yeas and nays is given 
 by all the conBtitutions of the several states ; 
 and it is not, in general, restricted to the request 
 of one-flfth of the members present, but may be 
 demanded by a less number ; and, in some, one 
 member alone has the right to require the call 
 of the yeas and nays. 
 
 YEOMAN. In the United States this 
 word does not appear to have any very exact 
 meaning. It is. usually put as an addition to 
 the names of parties in declarations and in- 
 dictments. In England it signifies a free 
 man who has land of the value of forty shil- 
 lings a year. Co. 2d Inst. 668 ; 2 Ball. 92., 
 The local volunteer militia, raised by in- 
 dividuals with the approbation of the queen 
 are also called yeomen. The term yeomanry 
 is applied to the small freeholders and far- 
 mers in general. Hallam, Cons. Hist. c. 1. 
 
 YIELDING AND PAYING. These 
 words, when used in a lease, constitute a 
 covenant on the part of the lessee to pay the 
 rent ; Piatt, Gov. 50 ; 8 Penn. R. 464 ; 2 
 Lev. 206 ; 3 Term, 402 ; 1 B. & C. 416 ; 2 
 Dowl. & R. 670 ; but whether it be an ex- 
 press covenant or not seems not to be settled; 
 2 Lev. 206 ; T. Jones, 102 ; 3 Term, 402. 
 
 In Pennsylvania, it has been decided to he 
 a covenant running with the land ; 8 Penn. 
 R. 464. See 1 Saund. 233, u. 1 ; 9 Vt. 191. 
 
 YORE, CUSTOM OP, is recognized by 
 22 & 23 Car. II. c. 10, and 1 Jac. II. c. 17. 
 By this custom, the effects of an intestate are 
 divided according to the anciently universal 
 rule of pars rationahilis. 4 Bum. Eccl. 
 Law, 842. 
 
 YORK, STATUTE OP. The name of 
 an English statute, passed 12 Edw. II., Anno 
 Domini 1318, and so called because it was 
 enacted at York. It contains many wise 
 provisions and explanations of former stat- 
 utes. Barrington, Stat. 174. There were 
 other statutes made at York in the reign of 
 Edward III., but they do not bear this name. 
 
 YOUNG ANIMALS. It is a rule that 
 the young of domestic or tame animals be- 
 long to the owner of the dam or mother, ac- 
 cording to the maxim, Partus sequitur ven- 
 trem. Dig. 6. 1. 5. 2 ; Inst. 2. 1. 9. 
 
 YOUNGER CHILDREN. When used 
 with reference to settlements of land in Eng- 
 land, this phrase signifies all such children as 
 are not entitled to the rights of an eldest son, 
 including daughters who are older than the 
 eldest son ; Moz. & W. 
 
 YOUTH. This word may include chil- 
 dren and youth of both sexes ; 2 Cush. 519, 
 528. 
 
ZOLL-VEREIN 
 
 857 
 
 ZOLL-VEREIN 
 
 z. 
 
 ZOLL-VEREIN. A union of German 
 state3 for uniformity of customs, established 
 in 1819. It continued until the unification of 
 the German Empire, includins Prussia, Sax- 
 ony, Bavaria, Wurtemberg, Baden, Hesse- 
 Cassel, Brunswick, and Mecklcnberg-Strelitz, 
 
 and all intermediate principalities. It has 
 now been superseded by the German Empire ; 
 and the Federal Council of the empire has 
 taken the place of that of the zoll-Terein. 
 Whart. Lex. 
 
 IHE EXD. 
 

 
 i